Joint Appendix — Massachusetts v. EPA

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FILED

D AUG 3 0 2006

IN THE

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, et al.

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOINT APPENDIX

JAMES R. MILKEY PAUL D. CLEMENT

Assistant Attorney General Solicitor General of the U.S.

1 Ashburton Place, 18th Floor Room 5614, Dept. of Justice

Boston, MA 02108 950 Penn. Ave., N.W.

(617) 727-2200 Washington, D.C. 20530

Counsel of Record (202) 514-2217

for Petitioners Counsel of Record for

Respondent EPA

THOMAS L. CASEY RUSSELL S. FRYE

Solicitor General FryeLaw PLLC

P.O. Box 30217 3050 K Street, N.W., Suite 400

Lansing, MI 48909 Washington, D.C. 20007

(517) 373-1124 (202) 572-8267

Counsel of Record for Counsel of Record for

Respondent States Respondent CO, Lit. Group

(additional counsel listed on inside cover)

PETITION FOR CERTIORARI FILED MARCH 2, 2006

CERTIORARI GRANTED JUNE 26, 2006

(additional counsel)

NORMAN W. FICHTHORN

Hunton & Williams, LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel of Record for

Respondent Utility Air

Regulatory Group

THEODORE B. OLSON

Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue, N.W

Washington, D.C. 20036

(202) 955-8500

Counsel of Record for

Respondents Alliance of

Automobile Manufacturers,

Engine Manufacturers

Association, National

Automobile Dealers

Association, and Truck

Manufacturers Association

TABLE OF CONTENTS

Relevant docket entries in the D.C. Circuit ..... l

Opinions or Orders of the U.S. Court of

Appeals for the D.C. Circuit

Opinions of the United States Court of Appeals

for the D.C. Circuit............ [Pet. App. 1]

Order of United States Court of Appeals

for the D.C. Circuit denying petitioners’

petition for rehearing en banc ..... [Pet. App. 94]

Statement by Judge Tatel, joined by

Judge Rogers, dissenting from the

denial of rehearing en banc ...... [Pet. App. 96]

Order of United States Court of Appeals

for the D.C. Circuit denying petitioners’

petition for rehearing .......... [Pet. App. 98]

Judgment of the United States Court of Appeals

for the D.C. Circuit ...........- [Pet. App. 99]

Administrative Materials:

The rulemaking petition:

Petition for Rulemaking and Collateral Relief Seeking

the Regulation of Greenhouse Gas Emissions from New

Motor Vehicles Under § 202 of the Clean Air Act

SE EEE. wiwnunsaevenévédrecensnes 5

Agency rulings, opinions, and _ other

pronouncements:

Memorandum from J. Cannon to C. browner (April 10,

PEE Guy biiedendedusdavekunedaesneessess 46

Testimony of Gary S. Guzy, General Counel, U.S. EPA,

Before a Joint Hearing of the Subcommittee on

National Economic Growth, Natural Resources and

Regulatory Affairs of the Committee on Government

Reform and the Subcommittee on Energy and the

Environment of the Committee on Science of the U.S.

House of Representatives (Oct. 6, 1999) ....... 56

Letter from G. Guzy to D. MclIntosh (Dec. 1,

1999)(including attachment) ................. 63

Letter from G. Guzy to K. Calvert (Feb. 16,

2000)(including attachment) ................. 86

Letter from G. Guzy to D. McIntosh (July 12,

2000)(including attachment) ................. 107

Memorandum from Robert E. Fabricant to Marianne L.

Horinko (August 28, 2003) ................. 119

EPA Denial of Rulemaking Petition, 68 Fed. Reg.

52922 (September 8, 2003) ....... [Pet. App. 59]

Other material from the administrative record:

National Research Council,

Climate Change Science: An Analysis of

Some Key Questions (June 29, 2001) ......... 138

Petitioners’ Standing Declarations (two of forty-

three submitted):

Declaration of Michael McCracken ........... 220

Declaration of Michael Walsh ............... 240

ill

Comm. of Massachusetts, et al. v. EPA

Relevant docket entries in the D.C. Circuit

10/23/03

PETITION FOR REVIEW CASE docketed.

Petition for Review filed by Petitioner Cm MA,

Petitioner St CT, Petitioner ST IL, Petitioner St

ME, Petitioner St NJ, Petitioner St NM,

Petitioner St NY, Petitioner St OR, Petitioner St

RI, Petitioner St VT, Petitioner St WA,

Petitioner Amer Samoa Govt, Petitioner DC.

[780922-1] (Ime) [03-1361]

PETITION FOR REVIEW CASE docketed.

Petition for Review filed by Petitioner St CA,

Petitioner CA Air Resre Bd, Petitioner Bill

Lockyer. [780992-1] (Ime) [03-1362]

PETITION FOR REVIEW CASE docketed.

Petition for Review filed by Petitioner Intl Ctr

Technol, Petitioner Bluewater Ntwrk, Petitioner

Ctr Bio Divrsty, Petitioner Ctr Food Sfty,

Petitioner Consrvtn Law Fdn, Petitioner Env

Advoc, Petitioner Env Def, Petitioner Friends

Earth Inc, Petitioner Greenpeace, Petitioner Natl

Env Trst, Petitioner Nat Resrc Def Cncl,

Petitioner Sierra Club, Petitioner Union Cnend,

Petitioner US Pub Int Rsrch Grp. [781057-1]

(Ime) [03-1363]

PETITION FOR REVIEW CASE docketed.

Petition for Review filed by Petitioner Mayor

Balt City, Petitioner City NY, Petitioner City

Cnel Balt. City [781095-1] (Ime) [03-1364]

10/29/03

12/23/03

4/8/05

7/15/05

CLERK’S ORDER filed [781375] to

consolidate cases [781375-1] [entry date:

10/29/03] (63-1361, 03-1362, 03-1363, 03-

1364)

CLERK’S ORDER FILED [793007] of the

motions for leave to intervene filed by the

Utility Air Regulatory Group sat the CO2

Litigation Group, and the respons: 3 thereto, it is

ORDERED that the motions be granted

[788192-1) [788196-1].

CLERK’S ORDER filed [793023] of the

respondent’s unopposed motion to consolidate

and to allow parties leave to file proposed

briefing formats, it is ORDERED that the

motion be granted [788499-1], and the above

captioned cases are hereby consolidated. [Entry

Date 12/23/03] [03-1361, 03-1362, 03-1363,

03-1364, 03-1365, 03-1366, 03-1367, 03-1368)

CLERK’S ORDER filed [793101] granting

non-party motion(s) to intervene filed by St.

MI, St. TX, St. ID, St. ND, St. UT, St SD, St.

AK, St KS, St. NE, St OH [788217-1], filed by

Alli Auto Mftr, Nat Auto Dirs Assn, Engine

Mftr Assn, Trk Mfg Assn [788169-1] in 03-

1361, filed by Util Air Regu Grp, filed by CO2

Litigation Grp [788583-1], filed by Alli Auto

Mftr, Nat Auto Dirs Assn, Engine Mftr Assn,

Trk Mfg Assn [788518-1] in 03-1365.

ORAL ARGUMENT HELD before Sentelle,

Randolph, Tatel. [03-1361 , 03-1362, 03-1363,

03-1364, 03-1365, 03-1366, 03-1367, 03-1368]

JUDGMENT that the Petitions for Review In

7/15/05

8/29/05

12/2/05

03-1361, 03-1362, 03-1363, and 03-1364 Are

Denied, and the Petitions for Review in Nos.

03-1365, 03-1366, 03-1367, and 03-1368 Are

Dismissed for the Reasons in_ the

Accompanying Opinion. Before Sentelle,

Randolph, Tatel.

OPINION filed [906086] ( 15 pgs ) for the

Court by Judge Randolph, DISSENTING

OPINION ( 5 pgs ) filed by Judge Sentelle,

DISSENTING OPINION ( 38 pgs ) filed by

Judge [Tatel].

PETITION FOR REHEARING [916280-1] and

PETITION, for rehearing en banc [916280-2],

20 copies) filed by Petitioner Cm MA in 03-

1361, Petitioner St ME in 03-1361, Petitioner St

NM in 03-1361, Petitioner St RI in 03-1361,

Petitioner St WA in 03-1361, Respondent EPA

in 03-1361.

PER CURIAM ORDER, In Banc, filed

[955017] denying suggestion for rehearing en

banc [916280-2] filed by Cm MA, et al. in 03-

1361. Before Judges Sentelle, Henderson,*

Randolph, Rogers,** Tatel,** Garland* Brown,

Griffith.** [PUBLISHED IN OPINION

FORMAT] [Entry Date: 12/2/05] (03-1361, 03-

1362, 03-1363, 03-1364, 03-1365, 03-1366, 03-

1367, 03-1368] (*Circuit Judges Henderson and

Garland did not participate in this matter.

**Circuit Judges Rogers, Tatel, and Griffith

would grant the petition for rehearing en banc.

A separate Statement by Circuit Judge Tatel, in

which Circuit Judge Rogers joins, dissenting

from the denial of rehearing en banc, is

12/2/05

attached.)

PER CURIAM ORDER filed [935024] denying

petition rehearing [916280-1] filed by Cm MA,

et al. (Mandate may issue on or after 12/12/05

in 03-1361, et al.) Before Judges Sentelle,

Randolph, Tatel*. (Circuit Judge Tatel would

grant the petition for rehearing) [Entry Date

12/2/05] [03-1361, 03-1362, 03-1363, 03-1364,

03-1365, 03-1366, 03-1367, 03-1368]

BEFORE THE ADMINISTRATOR OF THE UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY

INTERNATIONAL CENTER FOR

TECHNOLOGY ASSESSMENT,

310 D Street, N.E.

Washington, DC 20002, et al.,

Petitioners,

vs. Docket No.

[A-2000-04]

HON. CAROL BROWNER,

in her official capacity as,

Administrator of the United States

Environmental Protection Agency

401 M Street, S.W.

Room W1200

Washington, DC 20460,

Defendant.

PETITION FOR RULEMAKING AND COLLATERAL

RELIEF SEEKING THE REGULATION OF

GREENHOUSE GAS EMISSIONS FROM NEW MOTOR

VEHICLES UNDER § 202 OF THE CLEAN AIR ACT

Int’l. Ctr. For Tech Assm’t

Legal Petition to EPA - October 20, 1999

[footer deleted from subsequent pages]

Pursuant to the Right to Petition Government Clause

contained in the First Amendment of the United States

Constitution,' the Administrative Procedure Act,’ the Clean Air

Act,’ and the Environmental Protection Agency (“EPA”)

implementing regulations, petitioners file this Petition for

Rulemaking and Collateral Relief with the Administrator and

respectfully requests her to undertake the following mandatory

duties:

(1). | Regulate the emissions of carbon dioxide (CO,)

from new motor vehicles and new motor vehicle

engines under § 202(a){1) of the Clean Air Act;

(2). Regulate the emissions of methane (CH,) from

new motor vehicles and new motor vehicle

engines under § 202(a)(1) of the Clean Air Act;

(3). Regulate the emissions of nitrous oxide (N,0)

from new motor vehicles and new motor vehicle

engines under § 202(a){1) of the Clean Air Act;

(4). | Regulate the emissions of hydrofluorocarbons

(HFCs) from new motor vehicles and new

' “Congress shall make no law . . . abridging . . . the right of the people . _

. to petition Government for a redress of grievances.” U.S. Const., amend.

I. The right to petition for redress of grievances is among the most precious

of the liberties safeguarded by the Bill of Rights. United Mine Workers of

America, Dist, 12 v. Illinois State Bar Association, 389 U.S. 217, 222, 88 S.

Ct. 353, 356, 19 L. Ed. 2d 426 (1967). It shares the “preferred place”

accorded in our system of government to the First Amendment freedoms,

and has a sanctity and a sanction not permitting dubious intrusions. Thomas

y. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 322, 89 L. Ed. 430 (1945).

“Any attempt to restrict those First Amendment liberties must be justified

by clear public interest, threatened not doubtful or remotely, but by clear and

present danger." Id. The Supreme Court has recognized that the nght to

petition is logically implicit in, and fundamental to, the very idea of a

republican form of government. United States v. Cruikshank, 92 U.S. (2

Otto) 542, 552, 23 L. Ed. 588 (1875).

? 5 U.S.C. § 553(e) (1994).

* 42 U.S.C. § 7401, et seg. (1994).

motor vehicle engines under § 202(a)(1) of the

Clean Air Act;

PETITIONERS

Petitioner International Center for Technology

Assessment (CTA) is located at 310 D Street, N.E.,

Washington, DC 20002. Formed in 1994, CTA seeks to assist

the public and policy makers in better understanding how

technology affects society. CTA is a non-profit organization

devoted to analyzing the economic, environmental, ethical,

political and social impacts that can result from the application

of technology or technological systems.

Petitioner Alliance fur Sustainable Communities is

located at 2041 Shore Drive, Edgewater, MD 21037. The

Alliance was formed five years ago in order to bring together

representatives of government at all levels, citizens and

innovators to develop projects which express the primary

relationship between people and the earth.

Petitioner Applied Power Technologies, Inc. (APT) is

located at 357 Imperial Blvd., Cape Canaveral, FL 32920-4219.

APT isa research & development concern bringing new energy

conversion systems to the air-conditioning industry on behalf

of the natural gas industry. APT will advent the deregulation

and decentralization of power production by producing nearly

pollution-free air-conditioning, refrigeration and related

appliances which will convert clean natural gas into electric

offsetting heat energy on-site of actual end usage.

Petitioner Bio Fuels America is located at 28 Lorin Dee

Drive, Westerlo, NY 12193. Bio Fuels America is a not for

profit, self funded, advocacy group that promotes renewable

energies such as wind, sun and biomass.

Petitioner The California Solar Energy Industries

Association (CAL SEIA) is located at 23120 Alicia Parkway,

Ste. 107, Mission Viejo, CA 92692.CAL SEIA is a solar

industry trade association with 70 member companies who do

business in California. CAL SEIA's members include

manufacturers of both solar thermal and photovoltaic

technologies, as well as distributors, contractors, architects,

engineers and utilities.

Petitioner Clements Environmental Corporation is

located at 3607 Seneca Avenue, Los Angeles, CA 90039.

Clements Environmental Corp. is a small environmental

engineering firm specializing in the conversion of Municpal

Solid Waste and other waste organics to biofuels and

biochemicals.

Petitioner Environmental Advocates is located at 353

Hamilton Street, Albany, NY 12210. Environmental Advocates

serves the people of New York as an effective and aggressive

watchdog and advocate on virtually every important state

environmental issue. Through advocacy, coalition building,

citizen education and policy development, we work to

safeguard public health and preserve our unique natural

heritage. With thousands of individual supporters and over 130

organizational members, Environmental Advocates is truly the

voice of New York's environmental community.

Petitioner Environmental and Energy Study Institute

(EESI) is located at 122 C St. NW, Suite 700, Washington,

D.C. 20001. EESI is a non-profit organization founded in 1982

by a bipartisan group of Members of Congress. EESI promotes

public policy that sustains people, the environment and our

natural resources. EESI's wide-ranging audience includes

Congress and other national policymakers, as well as state and

local officials, industry leaders, the public interest community,

the media, and the general public. EESI draws together timely

information, innovative public policy proposals, policymakers,

and stakeholders to seek solutions to environmental and energy

problems.

Petitioner Friends of the Earth is located at 1025

Vermont Ave., NW, Suite 300, Washington, DC 20005 Friends

of the Earth is a national environmental organization dedicated

to preserving the health and diversity of the planet for future

generations. As the largest international environmental network

in the world with affiliates in 63 countries, Friends of the Earth

empowers citizens to have an influential voice in decisions

affecting their environment.

Petitioner Full Circle Energy Project, Inc. is located at

6 Brooklawn Road, Wilbraham, MA 01095-2002. Full Circle

Energy Project, Inc. is a non-profit organization founded to

enable environmentally sensible and sustainable energy

resources to supply at least 50% of the total energy used in the

United States. Its primary focus is on reducing the amount of

fossil fuels used by the transportation sector.

Petitioner The Green Party of Rhode Island is located

in Providence, RI. The Green Party of RI is a part of the

international Green Party movement. In Rhode Island it has run

candidates for a variety of offices, always focusing on

environmental issues as well as justice, non violence, and

democracy issues.

Petitioner Greenpeace USA is located at 1436 U Street,

NW, Washington, DC 20009. Greenpeace is one of the world’s

major environmental organizations with offices in 33 countries,

including the United States of America, and over 3 million

donating supporters worldwide. Greenpeace is a non-profit

organization devoted to the protection of the environment with

an emphasis on global environmental problems such as climate

change and protection of the stratospheric ozone layer,

prevention of nuclear, chemical and biological pollution, and

defense of biodiversity.

Petitioner Network for Environmental and Economic

Responsibility of the United Church of Christ, Washington

Office, 1820 Sanford Road, Wheaton, MD 20902-4008. The

Network for Environmental and Economic Responsibility

(NEER) is a grassroots, volunteer movement committed to

mobilizing UCC persons, networks and resources for a holistic

ministry of learning, reflection, and action cognizant of the

earth and its creatures. Network members believe that all

living things on our planet are interdependent in a vast web of

life.

Petitioner New Jersey Environmental Watch is located

. C/o St. John’s Church, 61 Broad Street, Elizabeth, NJ 07201.

New Jersey Environmental Watch is a church based

organization in New Jersey that seeks better air in their area and

elsewhere. Recently, it recorded 40 percent of our Sunday

School children had been hospitalized for asthma. It is also in

cancer alley and have greatly elevated cancer rates. The 14-lane

New Jersey Turnpike passes through Elizabeth, NJ the bottom

40 percent of the Newark Airport is located there as well, and

Elizabeth is immediately downwind of the huge Bayway Tosco

refinery in Linden.

Petitioner New Mexico Solar Energy Association

(NMSEA) is located at P.O. Box 8507 Santa Fe, NM 87505.

NMSEA is an all volunteer organization working to further

solar and related arts, sciences, and technologies with concern

for the ecologic, social and economic fabric of the region. It

serves to inform public, institutional and government bodies

and seeks to raise the level of public awareness of these

purposes.

Petitioner Oregon Environmental Council (OEC) is

located at 520 SW 6" Avenue, Suite 940, Portland, OR 97204-

1535. OEC, founded in 1968, is Oregon’s oldest statewide

environmental group. OEC works to restore and protect

Oregon’s water and air by creating and promoting

environmental policies.

Petitioner Public Citizen is located at 215 Pennsylvania

Ave., SE, Washington, DC 20003. Public Citizen, founded by

Ralph Nader in 1971, is a non-profit research, lobbying, and

litigation organization based in Washington, DC. Public

Citizen advocates for consumer protection and for government

and corporate accountability, and is supported by over 150,000

members throughout the United States.

Petitioner Solar Energy Industries Association (SEIA)

is located at 1111 North 19th Street, Suite 260, Arlington, VA

22209. The Solar Energy industries Association (SEIA),

founded in 1974, is the U.S. industry organization composed of

over 150 solar-electric and solar thermal manufacturers,

component suppliers, national distibutors and project

developers, and an additional 400 companies in the SEIA--

affiliated state and regional chapters covering 35 states.

Petitioner The SUN DAY Campaign is located at 315

Circle Avenue, Suite #2, Takoma Park, MD 20912-4836. The

SUN DAY Campaign is a non-profit network of 850+

businesses and organizations founded in 1991 to promote

increased use of renewable energy and energy efficient

technologies. Areas of work include research on sustainable

energy technologies, electric utility restructuring, climate

change, and the federal energy budget. Projects include

publication of a weekly newsletter, an annual series of

directories of sustainable energy organizations, and other

studies.

STATEMENT OF LAW

Clean Air Act, Section 302(g), 42 U.S.C. § 7602(g):

The term “air pollutant” means any air pollution

agent or combination of such agents, including

any physical, chemical, biological, radioactive

(including source material, special nuclear

material, and byproduct material) substance or

matter which is emitted into or otherwise enters

ambient air. Such term includes any precursors

to the formation of any air pollutant, to the

extent the Administrator has identified such

precursor or precursors for the particular

purpose for which the term “air pollutant” is

used.

Clean Air Act, Section 202(a)(1), 42 U.S.C. § 7521(a)(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 vehicle

or new motor vehicle engine, which in his

judgment cause, or contribute to, air pollution

which may be reasonably anticipated to

endanger public health or welfare. Such

standards shall be applicable to such vehicles

and engines for the useful life . .. whether such

vehicle or engines are designed as complete

systems or incorporate to devices to prevent the

control of such pollution.

U.S. Constitution, amendment I

Administrative Procedure Act, 5 U.S.C. § 551, et seq.

All other applicable statutes and regulations.

BRIEF STATEMENT OF FACT

The Earth’s temperature is increasing. Scientists from

the National Oceanic and Atmospheric Administration

(“NOAA”), the U.S. Regional Climate Centers, and the World

Meteorological Organization all agree that 1998 was the

warmest year on record.‘ The temperature increases recorded

in 1998 represent a steady trend over the past twenty years of

record breaking global surface temperatures.’ The United

Nations Intergovernmental Panel on Climate Change (“IPCC”),

an authoritative body of more than two thousand of the world’s

leading climate change scientists, stated that the emission of

anthropogenic greenhouse gases, including carbon dioxide

(“CO,"), methane (“CH,"), nitrous oxide (“N,O”), and

hydrofluorocarbons (“HFCs”) [hereinafter referred to

collectively as “greenhouse gases”], are significantly

accelerating this current warming trend.° Human activities are

increasing the concentration of heat trapping greenhouse gases

in the atmosphere and the effect is called global warming. Due

to these high fossil fuel emission levels, the IPCC warned that:

carbon dioxide remains the most important

contributor to anthropogenic forcing of climate

change; projections of future global mean

temperature change and sea level rise confirm

the potential for human activities to alter

* National Oceanic and Atmospheric Administration (January 12, 1999),

http://www.ncde.noaa.gov/ol/climate/research/ 1998/ann/ann98.html.

* Id.

* United Nations Environmental Programme (UNEP)/World Meteorological

Organization (WMO), Climate Change 1995; The Science of Climate

Change. Technical Summary of Working Group I of the Intergovernmental

Panel on Climate Change [hereinafter Climate Change 1995, Pet. Ex. 1].

Earth’s climate to extent unprecedented in

human history.’

Approximately 90% of U.S. greenhouse gas emissions

from anthropogenic sources occurs because of the combustion

of fossil fuel.* U.S. mobile sources are responsible for a

significant amount of greenhouse gas emissions. In fact, in the

United States, the fossil fuel CO, emissions from cars and light

trucks are higher than the total nationwide CO, emissions from

all but three other countries (China, Russia, and Japan).’

This anthropogenic forcing of climate change will affect

not only the environment, but will also significantly impact

human health. At a conference on Human Health and Global

Climate Change, cosponsored by the National Science and

Technology Council and the Institute-of Medicine, Vice

President Al Gore outlined the potential health risks caused by

global warming and stated that measures must be taken to

safeguard the American people.'® Additionally, the conference

participants stated that the lack of complete data on this issue

should not be used as an excuse for inaction.'’ Instead, the

participants urged governments to apply the precautionary

principle to its decision making concerning global warming."

” Id. at 3.

* U.S. Department of Energy, TECHNOLOGY OPPORTUNITIES TO

REDUCE U.S. GREENHOUSE GAS EMISSIONS, xiii (Oct. 1997).

* John DeCicco and Martin Thomas, GREEN GUIDE TO CARS AND

TRUCKS, 2 (1999).

!°The Conference on Human Health and Global Climate Change, September

11, 1995, at 4 [hereinafter Conference on Human Health and Global

Climate Change, Pet. Ex. 2].

"' Id. at 1.

'2 Id.; (The “precautionary principle” urges action to regulate activities

which may be harmful to the environment even if conclusive scientific

(continued...)

Embodied in this request is an understanding that the

tremendous potential risks to public health posed by global

warming dictate that governments must act with precaution and

take all prudent steps necessary to reduce the emission of

anthropogenic greenhouse gases.

Within the context of United States governmental

decision making, the precautionary principle is embraced by the

Clean Air Act (“CAA”), a statute allowing for the

implementation of a regulatory framework mandating the

reduction of greenhouse gases. Under the CAA, the

Administrator is permitted to make a precautionary decision to

regulate pollutants in order to protect public health and

welfare.'’ In addition to the precautionary nature of the CAA,

the Administrator has a mandatory duty to regulate greenhouse

gas emissions from new motor vehicles under § 202(a)(1) of

the CAA. Petitioners urge the Administrator to reduce the

effects of global warming by regulating the emission of

greenhouse gases from new motor vehicles.

(...continued)

evidence of their harmfulness is not yet available. At its most profound, the

precautionary principle dictates the institutionalization of precaution, which

entails the shifting of the burden of proof from those opposing

environmental degradation to those engaged in the challenged activity. See

e.g., Philippe Sands, ed.. GREENING INTERNATIONAL LAW (New

Press/1994) at 118.)

'> See H.R. Rep. No. 294, 95" Cong., 1* Sess. 49 (1977).

ARGUMENT

L. GREENHOUSE GAS EMISSIONS FROM NEW

MOTOR VEHICLES MUST BE REGULATED

UNDER § 202(a)(1) OF THE CLEAN AIR ACT.

Under § 202(a)(1) of the Clean Air Act, 42 U.S.C.

§ 7521(a)(1), the Administrator is directed to prescribe

standards for the emission of greenhouse gases from new motor

vehicles'* if she has determined that: (1) the emission of a

greenhouse gas is an “air pollutant” and is emitted from new

motor vehicles; and (2) the emission causes or contributes to air

pollution which may reasonably be anticipated to endanger

public health or welfare. For the reasons contained herein, the

Administrator has made such determinations for greenhouse

gases, including CO,, CH,, N,O, and HFCs and petitioners

request the Administrator to undertake her mandatory duty to

regulate these as directed by § 202(a)(1) of the CAA.

A. Greenhouse Gases Meet The Definition Of “Air

Pollutant” Under The Clean Air Act And Are Emitted

From New Motor Vehicles.

Pursuant to § 302(g), 42 U.S.C. § 7602(g), of the CAA,

an “air pollutant” is defined as:

any air pollutant agent or combination of such

agents including any physical, chemical,

biological, radioactive (including source

material, special nuclear material, and

byproduct material) substance or matter which

'* Section 202 applies to new motor vehicles and new motor vehicle

engines. Hereinafter, petitioners’ reference to “new motor vehicles” also

applies to “new motor vehicle engines.”

is emitted into or otherwise enters ambient air.

Such term includes any precursors to the

formation of any air pollutant, to the extent the

Administrator had identified such precursors or

precursors for the particular purpose for which

the term “air pollutant” is used.

Courts have interpreted this definition in an extremely

broad manner.’ The greenhouse gas emissions that the

petitioners request the Administrator to regulate under §

202(a)(J) meet the CAA’s broad statutory definition of “air

pollutant” and are emitted from new motor vehicles.

(1) Emission of Carbon Dioxide

Carbon dioxide (CO,) meets the § 302(g) definition.

Over the last several decades, levels of CO, emissions have

sharply risen causing the natural equilibrium of emissions and

absorption to fall out of balance. Although CO, is a naturally

occurring gas that is produced by living organisms and

absorbed by oceans and trees, the extensive burning of fossil

fuels has dramatically increased CO, levels and disrupted this

natural equilibrium."* In fact, the U.S. Climate Action Report’s

“Greenhouse Inventory,” submitted under the United Nations

Framework Convention on Climate Change, states that CO, is

considered the most significant greenhouse gas in the U.S.

because it encompasses eighty-five percent of the total U.S.

greenhouse gas emissions.'’ Due to the global warming dangers

connected with the high emissions of CO,, this greenhouse gas

satisfies the definition of “air pollutant” under the CAA.

‘> Alabama Power Co., v. Costle, 636 F.2d 323, 353 (D.C. Cir. 1979).

‘© Greenhouse Gas Inventory, U.S. Climate Action Report 7 (1997)

[hereinafter U.S. Climate Action Report, Ex. 3).

"Id

Additionally, mobile sources emit significant amounts

of CO,. The transportation sector contributes over 30% of U.S.

greenhouse gas CO, emissions from fossil fuel combustion. '*

Almost two-thirds of the emissions come from automobiles and

the remaining emissions come from trucks and aircraft.'? The

greenhouse gas emissions from transportation sources are

predicted to grow faster than any other emission source.”

Finally, the agency has already made a legal

determination that CO, meets the definition contained in §

302(g). In an Apnil 10, 1998, memorandum to the

Administrator, EPA General Counsel Jonathan Z. Cannon

found that the broad definition of § 302(g) “states that air

pollutant’ includes any physical, chemical biological, or

radioactive substance or matter that is emitted into or otherwise

enters ambient air. SO,, NO,, CO, and mercury from electric

power generation are each a “physical [and] chemical . . .

substance which is emitted into . . . the ambient air,” and hence,

each is an air pollutant within the meaning of the Clean Air

Act.”' The memorandum further notes that Congress

explicitly recognized CO, emissions as an “air pollutant” under

§ 103(g) of the Clean Air Act.” Recently, EPA again made this

legal determination during hearings before Congress.”

* Department of Energy, Reducing Greenhouse Transportation Sector

Emissions, http://www.ecsd.ornl.gov/bfdp/biowin/reducing. html.

'* U.S. Climate Action Report, Ex. 3 at. 8.

20 Id.

*! Johnathan Z. Cannon, Memorandum to Carol M. Browner, Adminsitrator,

“EPA’s Authority to Regulate Pollutants Emitted ad Electric Power

Generation Sources.” (April 10, 1998).

2 Id

> Testimony of Gary S. Guzy, General Counsel, U.S. E.P.A., before a Joint

Heaing of the Subcommitttee on National Economic Growth, Natural

Resurces and Regulatory Affairs of the Committee on Government Reform

(continued...)

(2) Emission of Methane

Methane (CH,) should also be considered an “air

pollutant” under § 302(g) of the CAA because of its

contribution to global warming. The U.S. Climate Action

Report indicates that CH, “is estimated to be twenty-one times

more effective at trapping heat in the atmosphere than CO, over

a 100-year time horizon.” During the past two centuries, CH,

concentrations have more than doubled due to human

activities.” Because CH, is a potent greenhouse gas, it satisfies

the definition of “air pollutant” under the CAA. Furthermore,

motor vehicles fueled by gasoline emit CH, The EPA’s most

recent inventory of greenhouse gas emissions indicates that in

1997 gasoline powered cars, trucks, and heavy-duty vehicles

emitted 1.2 MMTCE of CH,”

(3) Emission of Nitrous Oxide

Nitrous oxide (N,O) is a greenhouse gas that is

produced naturally by biological sources in soil and water.

However, over the past two centuries, N,O levels have

increased by eight percent due to human activities.”’ The U.S.

Climate Action Report explains that “[w]hile N,O emissions

[sic] are much lower than CO, emissions, N,O is approximately

310 times more powerful than CO, at trapping heat in the

3 (...continued)

and the Subcommittee on Energy and Environment of the Committee on

Science, United States House of Representatives. (October 6, 1999).

4 id. at 10.

2s Id.

1997, 36 (Mar. 1999).

*” U.S. Climate Action Report, Ex. 3 at 13.

atmosphere over a 100-year horizon.”” As a result, N,O meets

the CAA definition of “air pollutant.”

This greenhouse gas is also emitted from motor vehicles

during fossil fuel combustion.” Due to the installation of

catalytic converters, a device designed to reduce air pollution,

the volume of N,O emitted from motor vehicles has risen.”

(4) Emission of Hydrofluorocarbons

Hydrofluorocarbons (HFCs) is a powerful greenhouse

gas that meets the definition of “air pollutant” under the CAA.

HFCs were introduced as alternatives to chlorofluorocarbons,

which are ozone depleting substance.*' Although these gases

do not directly destroy ozone, they do contribute to global

warming.” HFCs impact the ambient air by contributing to

global warming as much as 10,000 times that of CO,.** The

emissions of HFCs from motor vehicles have increased since

1993 due to the use of HFC-134a in mobile air conditioners.”

As discussed above, the four greenhouse gases subject

to this petition have been determined to accelerate global

warming. Additionally, the agency has already made the

determination that CO, is an “air pollutant’’as defined under the

CAA. Accordingly, similar determinations that the emissions

of CH,, N,O, and HFCs from motor vehicles also meet the

definition of “air pollutant” under § 302(g) of the CAA follow.

>'MSNBC,Greenhouse gases under review,

http://www.msnbc.com/news/127171.asp.

32 Id.

8 Id.

* U.S. Climate Action Report, Ex. 3 at 16.

B. The Emission Of Greenhouse Gases Contributes To

Pollution Which Is Reasonably Anticipated To

Endanger Public Health And Welfare.

Pursuant to the requirements of §202(a)(1), greenhouse

gas emissions from new motor vehicles must also be regulated

under the CAA because of their endangerment to public health

or welfare. When determining what constitutes an

endangerment to public health and welfare, the CAA does not

require proof of actual harm. Instead, the Administrator is

permitted to make a precautionary decision to regulate a

pollutant if it “may reasonably be anticipated” to endanger

public health or welfare.** This requirement is confirmed by

the CAA’s legislative history. The House Report

accompanying the 1977 Amendments states that one of the

CAA’s purposes is “[t]o emphasize the preventive or

precautionary nature of the act, i.e., to assure that regulatory

action can effectively prevent harm before it occurs; to

emphasize the predominant value of protection of public

health.”** As enumerated below, the EPA and other federal

agencies have already made numerous findings that greenhouse

gas emissions from new motor vehicles are air pollutants

reasonably anticipated to endanger public health and welfare.

Therefore, the Administrator has the statutory obligation to

regulate the emissions of air pollutants from new motor ~

vehicles under § 202(a)(1) in order to prevent future harm.

*S Engine Mfr. Ass’n v. EPA, 88 F.3d 1075, 1099 (D.C. Cir. 1996); See

also, Lead Industries Assoc., 647 F.2d at 1156 (explaining that the 1977

CAA amendments made the threshold decision to regulate air pollutants

precautionary in nature. ).

* H.R. Rep. No. 294, 95th Cong., Ist Sess. 49 (1977)(stating that Congress.

used the phrase “may reasonably be anticipated to endanger public health or

welfare” to emphasize the precautionary nature of the CAA. This phrase is

present in sections 108, 111, 112, 202, 211, and 231.)

(1). The Emission of Greenhouse Gases Will Endanger

Public Health.

The IPCC reports that greenhouse gas emissions are

significantly accelerating current warming trends and estimates

that by the year 2100, the Earth’s temperature will have

changed by two degrees Celsius.*’ As a result of increased

temperatures, the EPA reports that certain infectious diseases

may become more prevalent in geographic areas that were once

free from the threat of such diseases. In particular, global

warming may increase vector-born diseases such as malaria,

dengue fever, encephalitis, and hantavirus along with

increasing water-born diseases such as cholera, toxic algae, and

cryptosporidiosis. Changing climate conditions will also

increase the likelihood of direct effects on human health,

including heat stress, skin cancer, cataracts, and immune

suppression.

(a). Global Warming Increases the Threat of

Infectious Diseases.

1. Increases in Vector-borne Diseases.

Infectious diseases kill over seventeen million people

each year.” Vector-borne diseases, usually caused by a

microbial, insect or small mammal vector, cause a large portion

of those fatalities.” The spread of vector-borne diseases is a

serious concern because disease vectors are sensitive to climate

” Jonathan A. Patz, Public Health Effects of Climate Change Synthesis of

the IPCC Findings, 2 (1996) [hereinafter IPQC, Ex. 4].

8 EPA, Global Warming,

http://www.epa. pattantmendeatingsa tibiae: html.

*° IPCC, Ex. 4 at7

* Id.

variations.*'

| Malaria is the most prevalent vector-born disease.

Although this disease generally occurs in the tropics and

subtropics, the U.S. is not immune from this disease as

indicated by the latest Center for Disease Control (“CDC”)

report. *” The CDC reports a 15% increase in cases of malaria

in the U.S from 1994 thru 1995.*° Unseasonably warm weather

increases the transmission of malaria. Consequently, the IPCC

reports that more than one million additional fatalities from

malaria is estimated to occur by the middle of the next century

due to global warming.“

Dengue and Dengue hemorrhagic fever is a painful flu-

like illness transmitted by a mosquito bite that is increasing not

only in the tropics, but also in the Americas.“ Warmer

temperatures contribute to the spreading of this disease to

higher latitudes and altitudes. In fact, dengue was “observed

in Mexico at an unprecedented altitude of 1,700 meters during

an unseasonably warm summer in 1988.’”*’ The IPCC report

states that, when temperatures increase, more infectious

mosquitos hatch resulting in more people being bitten.“

“' Id. at Table 18-3 (data on the diseases that are likely to be affected by

climate change).

* Id. at 7.

* Malaria Surveillance — United States, 1995,

http://www.cdc.gov/epo/mmwr/preview/mmwrhtml/000565 | 8.htm (citing

1,167 cases of malaria in the U.S. in 1995).

* IPCC, Ex. 4 at 8.

Arboviral encephalitis is another vector-borne disease

that is highly correlated to warm temperatures. Outbreaks of

this disease have occurred in the U.S. after several days when

the temperature exceeded eighty-five degrees Fahrenheit.”

Heavy rainfall during winter months and drought during

summer months is another predictor for this disease. The effect

of global climate change predicted for the U.S. is warm, wet

winters and hot, dry summers. These conditions foster an

environment for the spread of arboviral encephalitis.

Hantavirus is a deadly infectious disease caused by

infected deer mice or cotton rats.°' The CDC reported an

outbreak of this illness in the southwest U.S in 1993.” This

epidemic occurred when six years of drought preceded heavy

spring rains.’ This ecological change resulted in an increase

of the rodent population ten times its normal size and,

consequently, caused the outbreak of hantavirus.* Reports of

this disease have occurred in the western U.S. and in a few

eastern states.”

2. Increases in Water-borne Diseases.

During the past century, sea surface temperatures have

* Jonathan A. Patz art Paut R- Epstein, et al., Global Climate Change and

Emerging Infectious Diseases, JAMA 219-220 (1996) [hereinafter JAMA].

*° Id. at 220.

‘! Center for Disease Control, Hantavirus, Public Information area,

http://www.cdc.gov/ncidod/diseases/hanta/hps/noframes/consumer.htm.

*2 JAMA, at 217.

$3 Id.

* Id

‘3 Center for Disease Control, HPS Case Information,

http://www.cdc.gov/ncidod/diseases/hanta/hps/noframes/whatsnew.htm.

increased 0.7 degrees Celsius. Increased temperature and

nutrient water promotes the growth of toxic algae.*’ Toxic

algae is dangerous because it causes shell-fish poisoning which

may harm humans, sea mammals, and sea birds.**

Increased algae growth can also stimulate the incidence

of cholera. Zooplankton feeds on algae and can serve as a

reservoir for Vibrio cholera.” Increased algae blooms may

increase the proliferation of a cholera epidemic. In Latin

America, large coastal algae blooms are suspected to have

perpetuated a cholera epidemic.“ The IPCC reports that

cholera may increase in the U.S. as sea temperatures increase.”

The most widespread waterborne disease in the US. is

cryptosporidiosis.” This disease occurs when floods, heavy

rains, and snow melts cause run-off on agricultural dairy farms

contaminating the water.” For example, in 1993, Milwaukee

reported 403,000 cases of this disease after experiencing

unusually heavy spring rains and melting snow.” Rising sea

levels will also affect the spread of this disease because saline

*? JAMA at 220 (nutrient waters develop from fertilizer runoff and sc wage

releases).

*8 Id. and IPCC, Ex. 4 at 12 (explaining that a species of toxic algae that was

previously confined to the Gulf of Mexico traveled north after “a parcel of

warm gulf stream water” rose up the east coast and the result was human

shellfish poisonings and substantial fishkills).

* IPCC, Ex. 4 at 8.

® Id.

* IPCC, Ex. 4 at 12.

water extends the viability of this disease.

Thus, significant research has shown that climate

change affects the spread of numerous and life-threatening

vector-borne and water-borne diseases. To protect public

health by reducing the threat and spread of these diseases, EPA

must immediately regulate the emissions of greenhouse gases

from new motor vehicles under § 202(a)(1).

(b). Global Warming Will Have Direct Effects on

Human Health.

1. Increases in Heat Stress.

The EPA reports that “the most direct effect of climate

change would be the impacts of hotter temperatures.” Hotter

temperatures affect the young, the elderly, and people with

heart problems and causes increased cases of heat exhaustion,

respiratory problems, and even death.®’

The IPCC reports that the U.S. is expected to “warm

disproportionately more than tropical and subtropical zones.”

The effects from this temperature increase can be determined

by reviewing data from past heat waves. The IPCC explains

that data taken from Philadelphia during 1973 to 1988 shows

that there is a relationship between temperature, humidity, and

Id.

* EPA, global warming,

http://www.epa.gov/globalwarming/impacts/health/index.html.

®? Id. (explaining that higher temperatures increase ozone at ground level

which can cause respiratory problems) and see Conference on Human Health

and Global Climate Change, Ex. 2 at 9 (reporting that 726 people died in

1995 during a heatwave in Chicago).

8 IPCC, Ex. 4 at 11.

mortality.” Based on data taken from several North American

cities, the IPCC predicts that “the annual number of heat-

related deaths would approximately double by 2020 and would

increase several-fold by 2050.””°

2. Increases in Skin Cancer, Cataracts, and

Immune Suppression.

Greenhouse gases prevent heat from entering the

stratosphere. As a result, ice crystal formations increase in the

upper stratosphere destroying the ozone layer.’’ Ozone

destruction increases the amount of ultraviolet-B radiation

entering the earth’s surface, which impacts public health by

directly contributing to skin cancer, cataracts, and immune

suppression.

A CDC report indicates that most of the top ten cancers

declined between 1990 and 1995 except for incidence of skin

cancer.” Skin cancer is the most common cancer in the U.S and

the incidence of melanoma has doubled since 1973.” The U.S.

National Cancer Institute explains that “[nJearly all skin

cancers occur in fair-skinned individuals who have been

exposed to the sun, x-rays, or ultraviolet light for prolonged

periods.””* The participants at the Conference on Human Health

and Global Climate Change predict that skin cancer will

® Id.

70 Id.

" Id. at 10.

” Center for Disease Control, 1998 News Release,

http://www.cdc.gov/nchswww/releases/98news/98news/cancer.htm

” American Cancer Society, Skin Cancer - Melanoma,

http://www3.cancer.org/cancerinfo/main_cont.asp?st=wi&ct=50.

* Id.

increase two percent for every one percent decrease in

stratospheric ozone.”

Ultraviolet B-radiation is also associated with the

development of cataracts. Half of the blindness in the world is

attributed to cataracts.” IPCC predicts that a ten percent loss

of stratospheric ozone will result in approximately 1.7 million

additional cases of cataracts annually.”

Immune suppression is also a direct effect from global

warming. The IPCC report states that “UV light has been

shown to cause immune suppression in both animal and human

studies.””* Immunosuppression decreases the strength of the

human immune system.

Therefore, the human health effects of climate change

will also be exacerbated by increasing humans’ susceptibility

to heat stress, skin cancer, and cataracts. These direct threats

to public health immediately mandate the EPA to regulate the

emissions of greenhouse gases from new motor vehicles under

§ 202(a)(1).

(2). The Emission of Greenhouse Gases Will

Endanger Public Welfare.

In addition to endangering public health, the emission

of greenhouses gases will also harm the public welfare. Under

the CAA, public “welfare” is defined as:

All language referring to effects on welfare

includes, but is not limited to, effects on soils,

water, crops, vegetation, manmade materials,

”> Conference on Human Health and Global Climate Change, Ex. 2 at 12.

”

* Ig

animals, wildlife, weather, visibility, and

climate, damage to and deterioration of

property, and hazards to transportation, as well

as effects on economic values and on personal

comfort and well-being, whether caused by

transformation, conversion, or combination with

other air pollutants.”

There have been numerous EPA findings that greenhouse gas

emissions will endanger “public welfare” as defined by this

section of the CAA. In fact, the EPA has researched the

potential environmental impacts from climate change and

reports that global warming will significantly harm the

environment.

(a). Global Warming Will Harm Environmental

Welfare. ;

The emission of greenhouse gases and the consequential

effects of global warming will severely harm the quality of the

United States environment. Global warming will harm, inter

alia, water resources, rangelands, forests, non-tidal wetlands,

fisheries and birds.

1. Harm to Water Resources.

Evaporation and precipitation is expected to increase

due to global warming. The EPA predicts that “[l]ower river

flows and lower lake levels could impair navigation,

hydroelectric power generation, and water quality, and reduce

the supplies of water available for agriculture, residential, and

” 42 U.S.C. § 7602(h)(emphasis added); See, Engine Mfr. Ass’n, 88 F.3d

at 1099 (Reaffirming the broad authority of the Administrator to make this

determination).

industrial uses.’”*° Furthermore, increased rainfall will likely

result in flooding.*!

2. Harm to Rangelands and Forests.

Global warming will likely harm grazing activities on

both federal and private lands. The EPA predicts the decrease

in the availability of water in these areas will harm the

economic viability of grazing on rangelands.”

As temperatures increase, many North American forests

will shift to the north.” The distance that trees will have to

migrate will depend on how fast temperatures increase. As

temperatures increase, the soil will become drier, which will

escalate the likelihood of forest fires. Also, changes in pest

populations will negatively affect the survival of forests.”

Furthermore, the EPA reports that wildlife that depend on the

habitat of nature reserves may be vulnerable because these

areas may no longer be located in a climate suitable for the

survival of many species.”’

3. Harm to Non-tidal Wetlands.

Wetlands serve several purposes in protecting the

environment. Wetlands provide a habitat for birds and fish and

http://www.epa.gov/globalwarming/impacts/water/index.html.

Id.

* Id. at http://www.epa.gov/globalwarming/impacts/rangelands/index. html.

* Id. at http://www.epa.gov/globalwarming/impacts/forests/index.html.

* Id. (EPA recognizes the uncertainties that exist pertaining to changing

climate and migrating forests).

** EPA, Global Warming,

http://www.epa.gov/globalwarming/impacts/forests/index.html

* Id.

*7 Id.

also prevent run-off pollution from farms and other sources

from entering rivers, lakes, and streams.“ The EPA explains

that the impact on wetlands from changing climate is uncertain

because it depends on the amount of rainfall received by

wetlands.” If wetland areas receive a decrease in rainfall, then

the areas will become drier and significantly impair the

wetland’s function.” Dry land will force farmers to increase

their use of irrigation which may further drain wetlands.” If

the wetland areas receive an increase in rainfall, then flooding

will occur.” Flooding will force people to move out of

hazardous areas, which will benefit wetlands by allowing them

to form. However, if people build dams in order to prevent

flooding, which is likely, then the new structures, along with

the decrease in flooding, will prevent wetlands from forming.”

4. Harm to Fisheries.

The EPA reports that climate change may impact inland

fisheries, coastal fisheries, and ocean fisheries.“ Increased

water temperatures may be too warm for some species of fish.”

Global warming might also harm many species of fish by

changing the chemical composition of the water by decreasing

the amount of oxygen and increasing the pollution and salinity

* Id. at http://www.epa.gov/globalwarming/impacts/wetlands/index.html.

" Id.

*” EPA, Global Warming,

http://www.epa.gov/globalwarming/impacts/wetlands/index.html

91 Id.

92 Id.

9 Id.

* EPA, Global Warming,

http://www.epa.gov/globalwarming/impacts/fisheries/index.htm].

95 Id.

level.” Species that are dependent on wetlands for habitat and

food would also be harmed if wetlands decrease.”

5. Harm to Bird Populations.

Global warming may impact birds by altering their life

cycles. The National Audubon Society’s bird data reveals that,

during warming years, birds do not fly as far south and during

the summer months, birds fly farther north.* The EPA

indicates that this change in migration may be harmful to birds

because the vegetation and insects they rely upon may take

decades to synchronize with the birds’ change in migration.”

Additionally, habitat loss due to global warming will

impact many bird species. Rising sea levels will decrease

estuarine beaches, which are habitats for the least tern, an

endangered species.'” The loss of wetlands and decreasing

shellfish levels will also impact many species.'°'

As discussed above, EPA recognizes that the

environmental welfare of the United States is impacted by the

emission of greenhouse gases and the effects of global

warming. The impacts include, inter alia, direct harm to our

water resources, rangelands, forests, non-tidal wetlands,

fisheries, and birds. Although there may be some uncertainties

concerning the extent of these impacts from global warming,

EPA must exercise precaution and mitigate these impacts by

regulating the emissions of greenhouse gases from new motor

* Id.

” Id

* EPA, Global Warming,

http://www.epa.gov/global warming/impacts/birds/index. html.

”

Id.

' Id. at http://www.epa.gov/globalwarming/impacts/birds/index.html.

Id.

vehicles under § 202(a)(1) of the CAA.

(b). Global Werming Will Harm Human Welfare.

The emission of greenhouse gases and resulting global

warming will also severely harm the human welfare of the

United States’ population. Global warming will harm, inter

alia, food production, nutritional health, weather patterns, sea-

levels, water quality and quantity, and respiratory health.

1. Harm to Food Production and Nutritional

Health.

Global warming is expected to change crop

productivity.'” Agricultural productivity may increase in some

regions initially but longer-term adaptation is not as likely due

to changes in plant physiology and the questionable availability

of an adequate water supply.'” Global warming may adversely

affect agricultural production by reducing soil moisture through

evapotranspirati n and through extreme weather such as

droughts, flooding, and tropical storms.'“ The IPCC report

explains that one of the long term effects of global warming

will be altered plant diseases and pest infestations." As a

result of these climate change affects on agriculture, an

estimated 40-300 million additional people worldwide may be

at risk from hunger.'®°

‘2 See generally, International Rice Rescarch Institute and American

Association for the Advancement of Science, “Climate and Food Security”

1989.

‘> Jonathan A. Patz, MD, MPH, “Public Health Effects of Climate Change:

Synthesis of the IPCC Findings” Statement Prepared for a Roundtable

Discussion of Senator Lieberman, 8 (June 11, 1996).

1 IPCC, Ex. 4 at 8.

105 Id.

106 Id

2. Weather Related Harm and Rising Sea Levels.

Extreme weather is predicted as a result of changing

climate conditions.'” More floods may occur due to the

increased rain fali and more tropical cyclones are expected —

because of warmer sea surface temperatures.'* Extreme

weather will not only create physical harm and structural

damage, but will also create breeding sites for insects and

rodents carrying disease." The IPCC anticipates that global

warming will also encourage human dislocation from

geographically vulnerable areas.''° Droughts in West Africa

have already forced mass migrations.'"'

Sea level rises are occurring rapidly in the U.S. The

EPA estimates that “along the Gulf and Atlantic coasts, a one

foot (30 cm) rise in sea level is likely by 2050 and could occur

as soon as 2025. In the next century, a two foot rise is most

likely, but a four foot rise is possible.”''? Developed areas will

probably attempt to protect their property with bulkheads,

dikes, and other structures, however, not all property will be

protected and consequently, many people living in coastal areas

will be forced to relocate.'?

3. Harm to Water Quality and Quantity.

Rising sea levels will increase the salinity of surface and

©? IPCC, Ex. 4 at 9.

108 Id.

109 Id.

110 Id.

Wt Id.

"2 EPA, Global Warming,

http://www.epa.gov/globalwarming/impacts/coastal/index.html.

3 Id.

ground water.''* The EPA reports that New York, Philadelphia,

and much of California’s Central Valley will be susceptible to

salty water during droughts if sea levels rise.''* Climate effects

will also increase flooding and water shortages.''®

4. Harm From Air Pollution and Allergens.

The industrial processes that produce greenhouse gases

also produce air pollutants.''’ In the U.S., air pollution causes

70,000 deaths and one million hospitalizations annually.''* The

participants at the Conference on Human Health and Global

Climate Change predict that as pollution from greenhouse gases

increases, “the health effects of air pollution on a global scale

could be staggering.””''? Hotter temperatures and humidity may

also lead to increased levels of plant pollen, which in turn

would increase the cases of asthma and hay fever.'”°

In sum, significant scientific research and numerous

EPA findings conclude that greenhouse gases will adversely

affect human health and welfare in the United States by causing

global warming. Based on these determinations, EPA must

regulate the emissions of greenhouse gases from new motor

vehicles under § 202(a)(1) of the CAA in order to mitigate the

harmful impacts of global warming on both the environmental

and human welfare.

'* Jd. at http://www.epa.gov/globalwarming/impacts/coastal/index.html.

''S Jd. (some aquifers that are currently recharged by fresh water will

become salty due to rising sea levels).

"© IPCC, Ex. 4 at 9.

'” Conference on Human Health and Global Climate Change, Ex. 2 at 13.

118 Id.

' Id. at 14,

- Id.

M1. IT IS TECHNICALLY FEASIBLE TO REDUCE

GREENHOUSE GAS EMISSIONS FROM NEW

MOTOR VEHICLES.

Agency action under § 202 will allow the EPA to

implement a vanety of regulatory standards to control

greenhouse gas emissions. As contained in § 202, standards set

under § 202 authority “shall be applicable to such vehicles and

engines for the useful life . .. whether such vehicle or engines

are designed as complete systems or incorporate devices to

prevent the control of such pollution.” Accordingly, this

language allows the EPA latitude to utilize a number of options

to address new motor vehicle greenhouse gas emissions so long

as the options require the incorporation of complete systems or

devices that reduce such emissions. Major automakers have

already introduced car and truck designs that significantly

reduce vehicle-related CO, formation, and many of these are

already available to consumers and institutional purchasers at

competitive prices. These vehicles generally rely on one of two

strategies for reducing CO, emissions: increasing fuel economy

and/or eliminating tailpipe emissions altogether. Standards

assuring their rapid market adoption of these vehicles are

necessary increases in new vehicle greenhouse gas emissions.

A. Standards for Increased Corporate Average Fuel

Economy.''

According to the U.S. Department of Energy, “{T]he

fuel economy of a vehicle is directly related to its emissions of

carbon dioxide, the most important greenhouse gas.”

Furthermore, EPA added that:

[E]ven though today’s new vehicles cause much

'2! Petitioners assrt that Section 202 provides the EPA with the authority

to implement a corporate average fuel-economy based standard.

less air pollution than in the past, their

greenhouse gas emissions are as high as they

were 15 years ago. A vehicle’s greenhouse gas

emissions are directly related to its fuel

economy. Every gallon of gasoline that you use

in a vehicle adds about 20 pounds of carbon

dioxide to the atmosphere.””'”

The Corporate Average Fuel Economy (CAFE) standard for

1999 is 27.5 mpg, though the actual average fuel economy is

somewhat lower than this because automakers are permitted to

employ credits generated through an averaging, banking, and

trading program. Also, light trucks, which make up a growing

segment of passenger vehicle sales, are subject to less stringent

fuel economy standards. Complete vehicle systems and

incorporated devices that would significantly reduce new

vehicle CO, emissions are currently in development or on the

road. For example, the Union of Concerned Scientists has

developed a blueprint for a sport utility vehicle utilizing

devices that would emit 32 percent less CO, than comparable

models now for sale.'”

In addition, automakers have shown that the technology

is available to support a more stringent CAFE standard. For the

1999 model year, a number of traditional, gasoline-powered

cars achieve fuel economy ratings of at least 40 mpg on the

highway. These include the Chevrolet Metro (1.0 liter/3

cylinder engine, 41 mpg city/47 mpg highway); Honda Civic

HX (1.6/4, 35/43), Mitsubishi Mirage (1.5/4, 33/40), Saturn SL

(1.9/4, 29/40), Suzuki Swift (1.3/4, 39/40), and Toyota Tercel

'2 U.S. DOE, “Model Year 1999 Fuel Economy Guide,” DOE/EE-0178,

(Washington, DC: October 1998) at 2.

‘3 David Welch, “Fuel-Efficient Sport-Utility Is Envisioned,” Detroit

News, July 16, 1999, at E15.

(1.5/4, 32/40).'**

Even better-fuel-economy ratings are achievable. In

1991, the Congressional Office of Technology Assessment

established a list of strategies for improving vehicle fuel

economy. Many remain viable. These automotive technology

and design improvements include: weight reduction,

aerodynamic drag reduction, improved tires and lubricants,

advanced engine friction reduction, two-stroke engines, and

continuously variable transmissions that ensure optimal vehicle

efficiency at all speeds.'*

B. Increased Adoption of Hybrid and Non-Fossil Fuel

Vehicles.

The setting of standards under § 202 will create the

rapid market introduction of hybrid-electric and zero emission

vehicles. By encouraging the development of this technology,

the agency can effectively reduce greenhouse gas emissions

from new vehicles.

Hybrid technologies utilize entirely new systems

combining a gasoline-powered engine and a battery-powered

electric motor. The energy used to charge the battery is

typically generated by the gasoline engine. Toyota has sold

nearly 30,000 of its hybrid-electric Prius in Japan since

December 1997, and plans to release the model in the United

States in 2000. In a recent 4,200-mile cross-continent trip, the

Prius demonstrated a fuel economy of over 60 miles per

124 Id.

'25 U.S. Congress, Office of Technology Assessment, /mproving Automobile

Fuel Economy: New Standards, New Approaches, OT A-E-504 (Washington,

DC: U.S. Government Printing Office, October 1991) at 4.

gallon.'*° Other automakers are also working on hybrid models.

Honda plans to begin selling the Insight hybrid-electric vehicle

in the United States in December of this year. The company

claims that the car will get 84 miles per gallon of gasoline.

General Motors, Ford, and DaimlerChrysler are also developing

hybrid-electric vehicles, which they may release for public sale

as early as 2001.'”’ The setting of new § 202-based CAFE

standards by the EPA would greatly enhance market

penetration of these vehicles.

In addition, other new complete vehicle systems exist

for reducing new vehicle greenhouse gas emissions. According

to the California Air Resources Board, there are at least 16

zero-emission production vehicles now available to consumers

in at least some states. These are electric vehicles (EVs) and

include models of the Dodge Caravan, Ford Ranger pickup,

General Motors S-10 pickup, and Plymouth Voyager. Recent

technological advancements have dramatically increased the

range of EVs. The General Motors EV-1 with a nickel metal

hydride battery can travel up to 152 miles on a single charge,

while the Toyota RAV 4 and Nissan Alta EVs also boast ranges

exceeding 100 miles per charge.'"* EVs have no tailpipe

emissions and carry the potential to reduce all automobile-

related CO, emissions to near zero. The agency itself has found

that, “[I}f power plants produce electricity using clean energy

sources such as solar or hydro power, emissions are

'° “Environmental Adventurers First to Cross the U.S. in a Hybrid-Electric

Car,” PR Newswire, July 9, 1999.

7 “Honda Unveils Fuel Efficient Car,” Associated Press, July 6, 1999.

"8 California Air Resources Board, “Buyer’s Guide to Cleaner Cars,”

updated March 8, 1999, <http://www.arb.ca.gov/msprog/ccbg/ccbg.htm>.

negligible.”'”

Additionally, fuel cell vehicles may soon offer another

zero-emissions option. A fuel cell combines hydrogen and

oxygen in a chemical reaction that produces electricity. The

exhaust of a fuel cell running on pure hydrogen consists of

water and hot air. Ford has developed a research vehicle

known as the P2000 HFC, which runs on a fuel cell and emits

no CO, precursors. The company plans to begin testing about

45 fuel cell cars and buses in California over the next several

years." Other companies developing automotive fuel cell

technologies include Ballard Power Systems, DaimlerChrysler,

and Toyota.

Unfortunately, the Agency’s proposed Tier II standard

has inadequately addressed the effects of greenhouse gas

emissions, including CO, emissions, from new vehicles.’*'

Given the agency’s intention of using the Tier Il process to

develop a regulatory framework that addresses future

automobile pollution, petitioners believe that the authority

provided under § 202 requires the agency to incorporate

standards into its Tier 2 proposal that would combat global

_ warming by limiting the amount of CO, pollution created by

light duty vehicles. For example, establishing a declining NO,

fleet average in the proposed Tier II regulation would, in par,

achieve such a goal by requiring manufacturers to increase the

number of vehicles certified to the zero emission vehicles

standards of proposed Bin 1.

9 U.S. Environmental Protection Agency, “Electric Vehicles,” Fact Sheet

OMS-10, EPA 400-f-92-012, August 1994.

'© Ford Motor Co., “Ford Motor Company Fuel Cell Program Delivers

Zero-Emission Family Vehicle,” company press release, July 22, 1999.

'! See generally, The International Center for Technology Assessment’s

Comments on the U.S. Environmental Protection Agency's Tier 2 Proposal

(Public Docket No. A-97-10), August 2, 1999.

Given the scope of authority granted to the

Administrator under §202 and the existence of the requisite

technologies, the Administrator can set a number of new

standards for devices incorporated into new vehicles that will

reduce the emissions of greenhouse gas air pollutants.'*”

II. THE ADMINISTRATOR HAS A MANDATORY

DUTY TO REGULATE GREENHOUSE GASES

UNDER THE CLEAN AIR ACT.

Having already made formal findings that the emission

of air pollutants CO,, CH,, N,O, and HFCs from mobile

sources poses actual or potential harmful effects of the public

health and welfare,'*’ the Administrator must exercise her

authority to regulate the emissions of CO,, CH,, N,O, and

HFCs, from new motor vehicles under § 202(a)(1). Section

202(a) states that the Administrator “shall by regulation

prescribe . . . standards applicable to any air pollutant from any

... Class or classes of new motor vehicles” (emphasis added).

Prior court decisions have found that the use of “shall” in § 202

creates a mandatory duty to promulgate standards.'**

Accordingly, the Administrator must act to implement the

standards requested by this petition.

Further, even should the agency believe that there are

scientific uncertainties regarding the actual impacts from global

'2 For example, such standards could even include such things as tire

efficiency standards.

' See supra, Argument I (a) & (b).

'™ NRDC vy. Reilly, 983 F.2d 259, 266-67 (D.C. Cir. 1993) (finding thatuse -

of “shall” in § 202(a)(6) mandated promulgation of standards requiring new

light duty vehicles be equipped with onboard refueling vapor recovery

systems); See also, Hewitt v. Helms, 459 U.S. 460, 471, 74 L.Ed.2d 675,

103 S.Ct. 864 (1983) “shall” is “language of an unmistakably mandatory

character’); Her Majecty the Queen v. EPA, 912 F.2d 1525, 1533 (D.C. Cir.

1990) (“shall” signals mandatory action).

warming, the precautionary purpose of the CAA supports

actions regulating of these gases. In Lead Industries Assoc..,

Inc. v. EPA, the court -xplained that:

requiring EPA to wait until it can conclusively

demonstrate that a particular effect is adverse to

health before it acts is inconsistent with both the

Act’s precautionary and preventive orientation

and the nature of the Administrator’s statutory

responsibilities . . . Congress directed the

Administrator to err on the side of caution in

making the necessary decisions.'®

The Administrator’s authority to use precaution when

regulating air pollutants is also elaborated upon in Ethyl Corp.

v. EPA.’* In this case, the court stated that “[tJhe

Administrator may apply [her] expertise to draw conclusions

from suspected, but not completely substantiated relationships

between facts, from trends among facts, from theoretical

projects from imperfect data, from probative preliminary data

not yet certifiable as fact, and the like.”’*’ Thus, the

Administrator’s clear mandate to regulate greenhouse gases

under § 202 cannot be excused by a post hoc rationalization of

scientific uncertainty.

Based upon, inter alia, the evidence presented herein,

the petitioners request the Administrator to immediately begin

regulating the emissions of the greenhouse gases - CO,, CH,,

N,O, and HFCs - from new motor vehicles as required by §

202(a)(1). Should the Administrator not undertake this

mandatory duty, her inaction can be subject to judicial review.

"S 647 F.2d 1130, 1155 (D.C. Cir. 1980).

6 $41 F.2d 1 (D.C. Cir) (en banc), cert. denied, 426 U.S. 941 (1976).

"7 Id. at 28.

CONCLUSION

WHEREFORE, petitioners request that the Administrator:'*

(1). | Regulate the emissions of carbon dioxide (CO,)

from new motor vehicles and new motor vehicle

engines under § 202(a)(1) of the Clean Air Act;

(2). Regulate the emissions of methane (CH,) from

new motor vehicles and new motor vehicle

engines under § 202(a)(1) of the Clean Air Act;

(3). | Regulate the emissions of nitrous oxide (N,0)

from new motor vehicles and new motor vehicle

engines under § 202(a)(1) of the Clean Air Act;

(4). | Regulate the emissions of hydrofluorocarbons

(HFCs) from new motor vehicles and new

motor vehicle engines under § 202(a)(1) of the

Clean Air Act;

As required by law, the EPA is required to give this

petition prompt consideration. Additionally, under the

Administrative Procedure Act “agency action” is defined to

include “the whole or part of an agency rule, order, license,

sanction, relief, or the equivalent denial thereof, or failure to

act.” Therefore, petitioners are requesting a substantive

response to this petition within one hundred eighty (180)

calender days.'*”® In the absence of an affirmative response,

petitioners will be compelled to consider litigation in order to

' Rulemaking undertaken pursuant to this petition must comply with the

requirements contained in § 307(d), 42 U.S.C. § 7607(d).

'% Petitioners note that a response period of 180 days is reasonable under

the APA. See, 42 U.S.C. § 7604(a) requiring notice of 180 days prior to

commence of an action for unreasonable delay. See also, 21 C.F.R.

§$10.30(e)(2) (1998) (FDA's implementation of the Administrative Procedure

Act’s petitioning provisions).

achieve the agency actions requested.'”

Respectfully submitted,

Joseph Mendelson, III

Legal Director

International Center for Technology

Assessment

310 D Street, N.E.

Washington DC 20002

Of Counsel: Andrew C. Kimbrell & Tracie Letterman

International Center for Technology

Assessment

310 D Street, N.E.

Washington, DC 20002

ATTORNEYS FOR PETITIONERS

CC: Via First Class Mail

Vice President Albert Gore

Office of the Vice President

1600 Pennsylvania Ave., NW

Washington, DC 20505

Mr. Robert Perciasepe.

Assistant Administrator

Office of Air and Radiation

40 Petitioners also assert that through the filing of this petition they have

complied with citizen suit notice requirements established in § 304, 42

U.S.C. § 7604..

Mail Code 6101A

U.S. EPA Headquarters

401 M Street, SW

Washington, DC 20460

Ms. Margo Oge

Office of Mobile Sources

Mail Code 6401A

U.S. EPA Headquarters

401 M Street, SW

Washington, DC 20460

{from EPA administrative record]

[USEPA Symbol]

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

WASHINGTON, D.C. 20460

Office of

General Counsel

April 10, 1998 {date stamped]

MEMORANDUM

SUBJECT: —EPA’s Authority to Regulate Pollutants Emitted

by Electric Power Generation Sources

FROM: Jonathan Z. Cannon /s

General Counsel

TO: Carol M. Browner

Administrator

I. Introduction and Background

This opinion was prepared in response to a request from

Congressman DeLay to you on March 11, 1998, made in the

course of a Fiscal Year 1999 House Appropriations Committee

Hearing. In the Hearing, Congressman Delay referred to an

EPA document entitled “Electricity Restructuring and the

Environment: What Authority Does EPA Have and What Does

It Need.” Congressman Delay read several sentences from the

document stating that EPA currently has authority under the

Clean Air Act (Act) to establish pollution control requirements

for four pollutants of concern from electric power generation:

nitrogen oxides (NO,), sulfur dioxide (SO,), carbon dioxide

(CO,) and mercury. He also asked whether you agreed with the

statement, and in particular, whether you thought that the Clean

Air Act allows EPA to regulate emissions of carbon dioxide.

You agreed with the statement that the Clean Air Act grants

EPA broad authority to address certain pollutants, including

those listed, and agreed to Congressman Delay’s request for a

legal opinion on this point. This opinion discusses EPA’s

authority to address all four of the pollutants at issue in the

colloquy, and in particular, CO, which was the subject of

Congressman DeLay’s specific question.

The question of EPA’s legal authority arose initially in

the context of potential legislation addressing the restructuring

of the utility industry. Electric power generation is a

significant source of air pollution, including the four pollutants

addressed here. On March 25, 1998, the Administration

announced a Comprehensive Electricity Competition Plan

(Plan) to produce lower prices, a cleaner environment,

increased innovation and government savings. This Plan

includes a proposal to clarify EPA’s authority regarding the

establishment of a cost-effective interstate cap and trading

system for NO, reductions addressing the regional transport

contributions needed to attain and maintain the primary

National Ambient Air Quality Standards (NAAQS) for ozone.

The Plan does not ask Congress for authority to establish a cap

and trading system for emissions of carbon dioxide from

utilities as part of the Administration’s electricity restructuring

proposal. The President has called for cap-and-trade authority

for greenhouse gases to be in place by 2008, and the Plan states

that the Administration will consider in consultation with

Congress the legislative vehicle most appropriate for that

purpose.

As this opinion discusses, the Clean Air Act provides

EPA authority to address air pollution, and a number of specific

provisions of the Act are potentially applicable to control these

pollutants from electric power generation. However, as was

made clear in the document from which Congressman Delay

quoted, these potentially applicable provisions do not easily

lend themselves to establishing market-based national or

regional cap-and-trade programs, which the Administration

favors for addressing these kinds of pollution problems.

Il. Clean Air Act Authority

The Clear Air Act provides that EPA may regulate a

substance if it is (a) an “air pollutant,” and (b) the

Administrator makes certain findings regarding such pollutant

(usually related to danger to public health, welfare, or the

environment) under one or more of the Act’s regulatory

provisions.

A. Definition of Air Poll

Each of the four substances of concern as emitted from

electric power generating units falls within the definition of “air

pollutant” under section 302(g). Section 302(g) defines “air

pollutant” as

any air pollution agent or combination of such

agents, including any physical, chemical,

biological, [or] radioactive . . . substance or

matter which is emitted into or otherwise enters

the ambient air. Such term includes any

precursors to the formation of any air pollutant,

to the extent that the Administrator has

identified such precursor or precursors for the

particular purpose for which the term “air

pollutant” is used.

This broad definition states that “air pollutant” includes any

physical, chemical, biological, or radioactive substance or

matter that is emitted into or otherwise enters the ambient air.

SO,, NO,, CO, and mercury from electric power generation are

each a “physical [and] chemical . . . substance which is emitted

into . . . the ambient air,” and hence, each is an air pollutant

within the meaning of the Clean Air Act.' "es

A substance can be an air pollutant even though it is

naturally present in air in some quantities. Indeed, many of the

pollutants that EPA currently regulates are naturally present in

the air in some quantity and are emitted front natural as well as

anthropogenic sources. For example, SO, is emitted from

geothermal sources; volatile organic compounds (precursors to

ozone) are emitted by vegetation; and particulate matter and

NO, are formed from natural sources through natural processes,

such as naturally occurring forest fires. Some substances

regulated under the Act as hazardous air pollutants are actually

necessary in trace quantities for human life, but are toxic at

higher levels or through other routes of exposure. Manganese

and selenium are two examples of such pollutants. EPA

regulates a number of naturally occurring substances as air

pollutants, however, because human activities have increased

the quantities present in the air to levels that are harmful to

public health, welfare, or the environment.

' See also section 103(g) of the Act (authorizes EPA to conduct a basic

research and technology program to develop and demonstrate nonregulatory

strategies and technologies for air pollution prevention, which shall include

among the program elements “[iJmprovements in nonregulatory strategies

and technologies for preventing or reducing multiple air pollutants, including

sulfur oxides, nitrogen oxides, heavy metals, PM-10 (particulate matter),

carbon monoxide, and carbon dioxide, from stationary sources, including

fossil fuel power plants.”).

B. EPA Authority to Regulate Air Pollutants

EPA’s regulatory authority extends to air pollutants,

which, as discussed above, are defined broadly under the Act

and include SO,, NO,, CO,, and mercury emitted into the

ambient air. Such a general statement of authority is distinct

from an EPA determination that a particular air pollutant meets

the specific criteria for EPA action under a particular provision

of the Act. A number of specific provisions of the Act are

potentially applicable to these pollutants emitted from electric

power generation.’ Many of these specific provisions for EPA

? See, e.g,,section 108 (directs Administrator to list and issue air quality

criteria for each air pollutant that causes or contributes to air pollution that _

may reasonably be anticipated to endanger public health or welfare and that

is present in the ambient air due to emissions from numerous or diverse

mobile or stationary sources); section 109 (directs Administrator to

promulgate national primary and secondary ambient air quality standards for

each air pollutant for which there are air quality criteria, to be set at levels

requisite to protect the public health with an adequate margin of safety

(primary standards) and to protect welfare (secondary standards)); Section

110 (requires states to submit state implementation plans (SIPs) to meet

standards); section 111(b) (requires Administrator to list, and set federal

performance standards for new sources in, categories of stationary sources

that cause of contribute significantly to air pollution that may reasonably be

anticipated to endanger public health or welfare); section | | 1(d) (states must

establish performance standards for existing sources for any air pollutant

(except criteria pollutants or hazardous air pollutants) that would be subject

to a performance standard if the source were a new source); section | 12(b)

(lists 188 hazardous air pollutants and authorizes Administrator to add

pollutants to the list that may present a threat of adverse human health

effects or adverse environmental cffects); section 112(d) requires

Administrator to set emissions standards for each category or subcategory

of major and area sources that the Administrator has listed pursuant to

section 112(c)); section 112(n)(1){A) (requires Administrator to study and

report to Congress on the public health hazards reasonably anticipated from

emissions of listed hazardous air pollutants from electnc utility steam

(continued...)

action share a common feature in that the exercise of EPA’s

authority to regulate air pollutants is linked to a determination

by the Administrator regarding the air pollutants’ actual or

potential harmful effects on public health, welfare or the

environment. See, e.g., sections 108, 109, 111(b), 112, and

115. See also sections 202(a), 211(c), 231, 612, and 615. The

legislative history of the 1977 Clean Air Act Amendments

provides extensive discussion of Congress’ purposes in

adopting the language used throughout the Act referencing a

reasonable anticipation tliat a substance endangers public health

or welfare. One of these purposes was “[t]o emphasize the

preventative or precautionary nature of the act, i.e., to assure

that regulatory action can effectively prevent harm before it

occurs; to emphasize the predominant value of protection of

public health.” H.R. Rep. No. 95-294, 95th Cong., Ist Sess., at

49 (Report of the Committee on Interstate and Foreign

Commerce). Another purpose was “[t]c assure that the health

of susceptible individuals, as well as healthy adults, will be

encompassed in the term ‘public health,” .. . .” Id. at 50.

“Welfare” is defined in section 302(h) of the Act, which states:

{a]ll language referring to effects on welfare

includes, but is not limited to, effects on soils,

water, crops, vegetation, man-made materials,

animals, wildlife, weather, visibility, and

? (...continued) ;

generating units, and requires regulation if appropriate and necessary);

section 115 (Administrator may require state action to control certain air

pollution if, on the basis of certain reports, she has reason to believe that any

air pollutant emitted in the United States causes or contributes to air

pollution that may be reasonably anticipated to endanger public health or

welfare in a foreign country that has given the United States reciprocal rights

regarding air pollution control); Title IV (establishes cap-and-trade system

for control of SO, from electric power generation facilities and provides for

certain controls on NO,).

— ———_ —_ —__ —__

climate, damage to and deterioration of

property, and hazards to transportation, as well

as effects on economic values and on personal

comfort and well-being, whether caused by

transformation, conversion, or combination with

other air pollutants.’

EPA has already regulated SO,, NO, and mercury based

on determinations by EPA or Congress that these substances

have negative effects on public health, welfare, or the

environment. While CO.,, as an air pollutant, is within EPA’s

scope of authority to regulate, the Administrator has not yet

determined that CO, meets the criteria for regulation under one

or more provisions of the Act. Specific regulatory criteria

under various provisions of the Act could be met if the

Administrator determined under one or more of those

provisions that CO, emissions are reasonably anticipated to

cause or contribute to adverse effects on public health, welfare,

or the environment.

wd PA rity to Implement an issio -

Trade Approach

The specific provisions of the Clean Air Act that are

potentially applicable to control emissions of the pollutants

discussed here can largely be categorized as provisions relating

to either state programs for pollution control under Title I (e.g.,

sections 107, 108,109, 110, 115, 126, and Part D of Title 1), or

national regulation of stationary sources through technology-

based standards (e.g., sections 111 and 112). None of these

provisions easily lends itself to establishing market-based

> The language in section 302(h) listing specific potential effects on welfare,

including the references to weather and climate, dates back to the 1970

version of the Clean Air Act. :

national or regional emissions cap-and-trade programs."

The Clean Air Act provisions relating to state programs

do not authorize EPA to require states to control air pollution

through economically efficient cap-and-trade programs and do

not provide full authority for EPA itself to impose such

programs. Under certain provisions in Title I, such as section

110, EPA may facilitate regional approaches to pollution

control and encourage states to cooperate in a regional, cost-

effective emissions cap-and-trade approach (see Notice of

Proposed Rulemaking: Finding of Significant Contribution and

Rulemaking for Certain States in the Ozone Transport

Assessment Group Region for Purposes of Reducing Regicnal

Transport of Ozone, 62 F.R. 60318 (Nov. 7, 1997)). EPA does

not have authority under Title | to require states to use such

measures, however, because the courts have held that EPA

cannot mandate specific emission control measures for states to

use in meeting the general provisions for attaining ambient air

quality standards. See Commonwealth of Virginia v. EPA, 108

F.3d 1397 (D.C. Cir. 1997). Under certain limited

circumstances where states fail to carry out their

responsibilities under Title 1 of the Clean Air Act, EPA has

authority to take certain actions, which might include

establishing a cap-and-trade program.’ Yet EPA’s ability to

* Title IV of the Act provides explicit authority for a cap and trade program

for SO, emissions from electric power generating sources.

* For example, section 110(c) requires EPA to promulgate a Federal

implementation plan where EPA finds that a state has failed to make a

required submission of a SIP or that the SIP or SIP revision does not satisfy

certain minimum criteria, or EPA disapproves the SIP submission in whole

or part. In addition, section 126 provides that a State or political subdivision

may petition the Administrator for certain findings regarding emissions from

certain stationary sources in another state. If the Administrator grants the

petition, she may establish control requirements applicable to sources that

(continued...)

invoke these provisions for federal action depends on the

actions or inactions of the states.

Technology-based standards under the Act directed to

stationary sources have been interpreted by EPA not to allow

compliance through intersource cap-and-trade approaches. The

Clean Air Act provisions for national technology-based

standards under sections 111 and 112 require EPA to

promulgate regulations to control emissions of air pollutants

from stationary sources. To maximize the opportunity for

trading of emissions within a source, EPA has defined the term

“stationary source” expansively, such that a large facility can

be considered a “source.” Yet EPA has never gone so far as to

define as a source a group of facilities that are not

geographically connected, and EPA has long held the view that

trading across plant boundaries is impermissible under sections

111 and 112. See, e.g., National Emission Standards for

Hazardous Air Pollutants for Source Categories; Organic

Hazardous Air Pollutants from the Synthetic Organic Chemical

Manufacturing Industry, 59 Fed. Reg. 19402 at 19425-26(April

22, 1994).

Ill. Conclusion

EPA’s regulatory authority under the Clean Air Act

extends to air pollutants, which, as discussed above, are defined

broadly under the Act and include SO,, NO,, CO, and mercury

emitted into the ambient air. EPA has in fact already regulated

each of these substances under the Act, with the exception of

CO,. While CO, emissions are within the scope of EPA’s

authority to regulate, the Administrator has made no

determination to date to exercise that authority under the

specific criteria provided under any provision of the Act.

* (...continued)

were the subject of the petition.

With the exception of the SO, provisions focused on acid

rain, the authorities potentially available for controlling these

pollutants from electric power generating sources do not easily

lend themselves to establishing market-based national or

regional cap-and-trade programs, which the Administration

favors for addressing these kinds of pollution problems. Under

certain limited circumstances, where states fail to carry out

their responsibilities under Title | of the Act, EPA has authority

to take certain actions, which might include establishing a cap-

and-trade program. However, such authority depends on the

actions or inactions of the states.

[from EPA administrative record]

TESTIMONY OF

GARY S. GUZY

GENERAL COUNSEL

U.S. ENVIRONMENTAL PROTECTION AGENCY

BEFORE A JOINT HEARING OF THE

SUBCOMMITTEE ON NATIONAL ECONOMIC

GROWTH,

NATURAL RESOURCES AND REGULATORY

AFFAIRS

OF THE.

COMMITTEE ON GOVF RNMENT REFORM

AND THE

SUBCOMMITTEE ON ENERGY AND

ENVIRONMENT OF

THE COMMITTEE ON SCIENCE

U.S. HOUSE OF REPRESENTATIVES

October 6, 1999

Thank you, Chairman Mcintosh, Chairman Calvert, and

Members of the Subcommittees, for the invitation to appear

here today. I am pleased to have this opportunity to explain the

U.S. Environmental Protection Agency’s (EPA) views as to the

legal authority provided by the Clean Air Act (Act) to regulate

emissions of carbon dioxide, or CO,.

Before | do, however, I would like to stress, as EPA repeatedly

has stated in letters to Chairman McIntosh and other Members

of Congress, that the Administration has no intention of

implementing the Kyoto Protocol to the United Nations

Framework Convention on Climate Change prior to its

ratification with the advice and consent of the Senate.1 As I

indicated in my letter of September 17, 1999 to Chairman

McIntosh, there is a clear difference between actions that carry

out authority under the Clean Air Act or other domestic law,

and actions that would implement the Protocol. Thus, there is

nothing inconsistent in assessing the extent of current authority

under the Clean Air Act and maintaining our commitment not

to implement the Protocol without ratification.

Some brief background information is helpful in understanding

the context for this question of legal authority. In the course of

generating electricity by burning fossil fuels, electric power

plants emit into the air multiple substances that pose

environmental concerns, several of which are already subject

to some degree of regulation. Both industry and government

share an interest in understanding how different pollution

control strategies interact. These interactions are both physical

(strategies for controlling emissions of one substance can affect

emissions of others) and economic (sirategies designed to

address two or more substances together can cost substantially

less than strategies for individual pollutants that are designed

and implemented independently). EPA has worked with a

broad array of stakeholders to evaluate multiple-pollutant

control strategies for this industry in a series of forums, dating

back to the Clean Air Power Initiative (CAPT) in the mid-

1990's. While the CAPI process focused on SO, and NO,, a

broad range of participants, including representatives of power

generators, the United Mine Workers, and environmentalists,

expressed support for inclusion of CO, emissions, along with

SO,, NO,, and mercury, in subsequent analyses. One

conclusion that emerged from these analytical efforts is that

integrated strategies using marked-based “cap-and-trade”

approaches like the program currently in place to address acid

rain would be the most flexible and lowest cost means to

control multiple pollutants from these sources.

On March 11, 1998, during hearings on EPA’s FY 1999

appropriations, Representative DeLay asked the Administrator

whether she believed that EPA had authority to regulate

emissions of pollutants of concern from electric utilities,

including CO,. She replied that the Clean Air Act provides

such authority, and agreed to Representative Delay’s request

for a legal opinion on this point.

Therefore, my predecessor, Jonathan Z. Cannon, prepared a

legal opinion for EPA Administrator Carol Browner on the

question of EPA’s legal authority to regulate several pollutants,

including CO, emitted by electric power generation sources.

The legal opinion requested by Rep. DeLay was completed on

April 10, 1998. It addressed the Clean Air Act authority to

regulate emissions of four pollutants of concern from electric

power generation: nitrogen oxides (NO, ), sulfur dioxide (SO,),

mercury, and CO,. Because today’s hearing is focused

exclusively on CO,, I will summarize the opinion’s conclusions

only as they relate to that substance.

The Clean Air Act includes a definition of the term “air

pollutant,” which is the touchstone of EPA’s regulatory

authority over emissions. Section 302(g) defines “air

pollutant” as

any air pollution agent or combination of such agents,

including any physical, chemical, biological, [or]

radioactive . . . substance or matter which is emitted

into or otherwise enters the ambient air. Such term

includes any precursors to the formation of any air

pollutant, to the extent that the Administrator has

identified such precursor or precursors for the

particular purpose for which the term “air pollutant”

is used.

Mr. Cannon noted that CO, is a “physical [and] chemical

substance which is emitted into . . . the ambient air,” and thus

is an “air pollutant” within the Clean Air Act’s definition.

Congress explicitly recognized emissions of CO, from

stationary sources, such as fossil fuel power plants, as an “air

pollutant” in section 103(g) of the Act, which authorizes EPA

to conduct a basic research and technology program to include,

among other things, “[iJmprovements in nonregulatory

strategies and technologies for preventing or reducing multiple

air pollutants, including sulfur oxides, nitrogen oxides, heavy

metals, PM-10 (particulate matter), carbon monoxide, and

carbon dioxide, from stationary sources, including fossil fuel

power plants.” (Emphasis added.)

The opinion explains further that the status of CO, as an “air

pollutant” is not changed by the fact that CO, is a constituent

of the natural atmosphere. In other words, a substance can be

an “air pollutant” under the Clean Air Act’s definition even if

it has natural sources in addition to its man-made sources. EPA

regulates a number of naturally-occurring substances as air

pollutants because human activities have increased the

quantities present in the air to levels that are harmful to public

health, welfare, or the environment. For example, SO, is

emitted from geothermal sources; volatile organic compounds

(VOCs), which are precursors to harmful ground-level ozone,

are emitted by vegetation. Some substances regulated under

the Act as hazardous air pollutants are actually necessary in

trace quantities for human life, but are toxic at higher levels or

through other routes of exposure. Manganese and selenium are

two examples of such pollutants. Similarly, in the water

context, phosphorus is regulated as a pollutant because

although it is a critical nutrient for plants, in excessive

quantities it kills aquatic life in lakes and other water bodies.

While CO,, as an “air pollutant,” is within the scope of the

regulatory authority provided by the Clean Air Act, this by

itself does not lead to regulation. The Clean Air Act includes

a number of regulatory provisions that may potentially be

applied to an air pollutant. But before EPA can actually issue

regulations governing a pollutant, the Administrator must first

make a formal finding that the pollutant in question meets

specific criteria laid out in the Act as prerequisites for EPA

regulation under its various provisions. Many of these specific

Clean Air Act provisions for EPA action share a common

feature in that the exercise of EPA’s authority to regulate air

pollutants is linked to a determination by the Administrator

regarding the air pollutant’s actual or potential harmful effects

on public health, welfare or the environment. For example,

EPA has authority under section 109 of the Act to establish

National Ambient Air Quality Standards for any air pollutant

for which the Administrator has established air quality criteria

under section 108. Under section 108, the Administrator must

first find that the air pollutant in question meets several criteria,

including that:

it causes or contributes to “air pollution which may

reasonably be anticipated to endanger public health or

welfare,” and

its presence in the ambient air “results from numerous or

diverse mobile or stationary sources...”

Section 302(h), a provision dating back to the 1970 version of

the Clean Air Act, defines “welfare” and states:

all language referring to effects on welfare includes,

but is not limited to, effects on soils, water, crops,

vegetation, man-made materials, animals, wildlife,

weather, visibility, and climate, damage to and

deterioration of property, and hazards to

transportation, as well as effects on economic values

and on personal comfort and well-being, whether

caused by transformation, conversion, or combination

with other air pollutants.

Thus, since 1970, the Clean Act has included effects on

“climate” as a factor to be considered in the Administrator’s

decision as to whether to list an air pollutant under section 108.

Analogous threshold findings are required before the

Administrator may establish new source performance standards

for a pollutant under section 111, list and regulate the pollutant

as a hazardous air pollutant under section 112, or regulate its

emission from motor vehicles under Title II of the Act.

Given the clarity of the statutory provisions defining “air

pollutant” and providing authority to regulate air pollutants,

there is no statutory ambiguity that could be clarified by

referring to the legislative history. Nevertheless, 1 would note

that Congress’ decision in the 1990 Amendments not to adopt

additional provisions directing EPA to regulate greenhouse

gases by no means suggests that Congress intended to limit pre-

existing authority to address any air pollutant that the

Administrator determines meets the statutory criteria for

regulation under a specific provision of the Act.

I would like today to reiterate one of the central conclusions of

the Cannon memorandum, which stated: “While CO,, as an air

pollutant, is within EPA’s scope of authority to regulate, the

Administrator has not yet determined that CO, meets the

criteria for regulation under one or more provisions of the Act.”

That statement remains true today. EPA has not made any of

the Act’s threshold findings that would lead to regulation of

CO, emissions from electric utilities or, indeed, from any

source. The opinion of my predecessor simply clarifies--and I

endorse this opinion--that CO, is in the class of compounds that

could be subject to several of the Clean Air Act’s regulatory

approaches. Thus, I would suggest that many of the concerns

raised about the statutory authority to address CO, relate more

to factual and scientific, rather than legal, questions regarding

whether and how the criteria for regulation under the Clean Air

Act could be satisfied.

I also want to note, however, EPA has strongly promoted

voluntary partnerships to reduce emissions of greenhouse gases

through the EnergyStar and Green Lights programs and other

non-regulatory programs that Congress has consistently

supported. These successful programs already have over 7,000

voluntary partners who are taking steps to reduce greenhouse

gas emissions, reduce energy costs and help address local air

pollution problems. These programs also help the United

States meet its obligations under the United Nations

Framework Convention on Climate Change, which was ratified

in 1992. I would also note, as EPA has indicated in past

correspondence withe Chairman McIntosh and others, in the

course of carrying out the mandates of the Clean Air Act, EPA

has in a few instances directly limited use or emissions of

certain greenhouse gases other than CO,. For example, EPA

has limited the use of certain substitutes for ozone-depleting

substances under Title VI of the Act, where those substitutes

have very high global warming potentials. I wish to stress once

more, however, that while EPA will pursue efforts to address

the threat of global warming through the voluntary programs

authorized and funded by Congress and will carry out the

mandates of the Clean Air Act, this Administration has no

intention of implementing the Kyoto Protocol prior to its

ratification on the advice and consent of the Senate.

This concludes my prepared statement. | would be happy to

answer any questions that you may have.

{from EPA administrative record]

[US EPA Symbol]

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

WASHINGTON, D.C. 20460

Office of

General Counsel

December |, 1999 [Date Stamped]

Honorable David M. McIntosh

Chairman, Subcommittee on National Economic Growth,

Natural Resources and Regulatory Affairs

Committee on Government Reform

U.S. House of Representatives

2157 Rayburn House Office Building

Washington, DC 20515-6143

Dear Mr. Chairman:

I am writing in response to your letter of October 14,

1999, which follows up on certain issues raised at the October

6, 1999, joint hearing conducted by the Government Reform

Subcommittee on National Economic Growth, Natural

Resources and Regulatory Affairs and the Science

Subcommittee on Energy and the Environment. Attached are

our responses to your questions.

Please let me know if we can be of further assistance, or

please have your staff contact Alexandra Teitz of my office at

202/564-5594.

Sincerely,

s/Gary S. Guzy

General Counsel

1. What in your judgement is the significance of the fact

that the Clean Air Act refers to carbon dioxide (CO,) only

in reference to non-regulatory activities, such as research

and technology development, while it specifically identifies

hundreds of other substances to be regulated by the

Environmental Protection Agency (EPA)?

In certain provisions of the Clean Air Act (CAA), Congress has

delegated to EPA authority to regulate any air pollutant if the

Administrator finds that the pollutant meets the criteria in the

provision. For example, section 108 does not name any

specific pollutants, but rather provides the criteria for EPA to

use in determining whether to list and regulate a pollutant. In

relevant part, the section requires the Administrator to list each

air pollutant “emissions of which, . . . may reasonably be

anticipated to endanger public health or welfare...” Section

112 contains a specific list of hazardous air pollutants, but also

authorizes the Administrator to add other air pollutants to that

list and provides the criteria for the Administrator to apply in

making such determinations. A number of other Clean Air Act

provisions are similarly structured. Specific mention of a

pollutant in a statutory provision is not a necessary prerequisite

to regulation under many CAA statutory provisions.

2. Your testimony cites Section 103(g) as proof that CO,

‘s a “pollutant” within the meaning of the Clean Air Act.

Yet, that very section directs the Administrator to develop

“non-regulatory” strategies, and concludes with an

admonition: “Nothing in this subsection shall be construed

to authorize the imposition on any person of pollution

control requirements.” Similarly, the only provision of the

Clean Air Act to mention global warming, section 602(e)

stipulates: “The preceding sentence shall not be construed

to be the basis of any additional regulation under this

— chapter.” How do you interpret these Congressional

restrictions?

Congress explicitly recognized CO, emitted from stationary

sources, such as fossil fuel power plants, as an “air pollutant”

in section 103(g) of the Act, which authorizes EPA to conduct

a basic research and technology program to include, among

other things, “[i]mprovements in nonregulatory strategies and

technologies for preventing or reducing multiple air pollutants,

including . . . carbon dioxide, from stationary seurces,... .”

(Emphasis added.) EPA agrees that section 103(g) and section

602(e) do not themselves provide authority to regulate.

However, the language that you have cited limiting the

authority provided by those sections to research activities does

not affect the fact that Congress recognized CO, as an air

pollutant in section 103(g). Nor does the language in sections

103(g) and 602(e) limit in any way the regulatory authority

provided by other provisions of the Clean Air Act.

3. During the hearing, Professor Jeffrey Miller argued

that the absence of express statutory authority to regulate

CO, is not significant because the Clean Air Act authorizes

the Administrator to revise or add to the list of regulated

substances. However, the Clean Air Act always confers

such listing authority in the context of specific regulatory

schemes designed to address specific kinds of problems.

For example, there is a “criteria” pollutants program to

reduce emissions of substances that adversely affect

ambient air quality, a “hazardous” pollutants program to

control emissions of toxic substances, and a stratospheric

ozone protection program to phase out ozone-depleting

substances. There is no comparable program to reduce,

control, or phase-out emission of greenhouse gases. What

in your judgement is the significance of the fact that the

Clean Air Act contains no subchapter or section on global

climate change? What is the significance of the fact that the

Act nowhere expressly authorizes the Administrator to list

and promulgate regulations to control substances that may

be reasonably anticipated to cause or contribute to global

warming?

To answer your question, it is critical to understand how the

structure of the Clean Air Act has evolved over time. The

current Clean Air Act is the product of a series of enactments

over the last 30 years, most importantly the amendments of

1970, 1977, and 1990. In the 1970 Clean Air Act, for example,

Congress provided the Agency general authority to identify and

regulate various types of air pollutants or sources (e.g., criteria

pollutants under sections 108 and 109, new sources under

section 111, or hazardous air pollutants under section 112).

These 1970 provisions generally did not name specific

pollutants or source types. EPA used those authorities in the

following years to identify and set standards for a number of air

pollutants (e.g., the National Ambient Air Quality Standards

(NAAQS) for such air pollutants as ozone, sulfur dioxide, and

particulate matter). After EPA took action under these general

authorities, Congress has sometimes provided more specific

authority. For example, the 1977 and 1990 amendments

included specific mandates to periodically review and update

the NAAQS that EPA had already set, and set forth refined

approaches to the implementation of those standards. In this

context it is not surprising to find 1977-and 1990-vintage

provisions that specifically name ozone or other pollutants that

EPA had already placed under regulation. In some areas, the

1977 and 1990 amendments include specific provisions

mandating the regulation of one or more pollutants as to which

EPA had not yet used its general authority. These more

specific enactments generally left intact, and in some cases

extended, EPA’s general authority to identify and regulate

additional air pollutants if they meet the criteria of relevant

sections of the Act. Thus, the absence of specific provisions

addressing a particular air pollution problem does not mean that

EPA lacks authority to address that problem.

Since 1970, the Clean Air Act has contained various provisions

authorizing regulation to address air pollutants’ actual or

potential harmful effects on public health, welfare or the

environment. For example, sections 107, 108, 109, 111(b),

112, 202, and 231, among others, date from the 1970 Act,

although they have been modified since. The courts have long

recognized that Congress need not address every question that

could arise under a statutory scheme for an agency to have

authority to act. “The power of an administrative agency to

administer a congressionally created . . . program necessarily

requires the formulation of policy and the making of rules to

fill any gap left, implicitly or explicitly, by Congress.

“Chevron ». NRDC, 467 U.S. 837, 843, (1984), quoting Morton

v. Ruiz, 415 U.S. 199, 231 (1974)". In Chevron, the court

discussed the variety of reasons why Congress might not have

addressed a particular issue. “Perhaps that body consciously

desired the Administrator to strike the balance at this level,

thinking that those with great expertise and charged with

responsibility for administering the provision would be in a

better position to do so; perhaps it simply did not consider the

question at this level; and perhaps Congress was unable to

forge a coalition on either side of the question, and those on

each side decided to take their chances with the scheme devised

by the agency.” Jd. at 865. The court in Chevron recognized

that Congress’ failure to direct an agency on a specific issue,

where Congress has given the agency broad power to act,

constitutes an explicit or implicit delegation of authority for the

agency to decide the issue. Thus, where Congress has provided

EPA broad authority, with criteria for exercising such authority,

the fact that Congress did not speak to how the Agency should

exercise such authority with respect to each individual air

pollutant or air pollution issue, does not limit EPA’s delegated

7 tee

authority.

4. In section 112 of the Clean Air Act, Congress

specifically named 190 hazardous air pollutants (HAPs),

but did not include CO, in the list. Each of the substances

listed is highly toxic and endangers health or the

environment through direct exposure, not indirectly

through a chain of secondary effects as in the supposed case

of greenhouse warming. By what scientific logic or

statutory construction could EPA list CO, as a HAP?

EPA has not concluded that CO, is a hazardous air pollutant.

As we have stated, EPA would have authority to regulate CO,

under section 112 if a finding were made that CO, presented a

threat of “adverse environmental effects,” as section 112 uses

that phrase. Section | 12(a)(7) defines “adverse environmental

effect” as “any significant and widespread adverse effect,

which may reasonably be anticipated, to wildlife, aquatic life,

or other natural resources, including adverse impacts on

populations of endangered or threatened species or significant

degradation of environmental quality over broad areas.”

Furthermore, air pollutants may be added to the list due to

adverse environmental effects that occur not only through

ambient concentrations, but also “bioaccumulation, deposition

or otherwise.” Thus, the substances that may be added to the

list of hazardous air pollutants under section 112(b) are not

limited to those that are “highly toxic and endanger{] health or

the environment through direct exposure.”

5. Could EPA have phased out Freon 12 and other non-

toxic ozone-depleting substances under its authority to

regulate HAPs, or did EPA require new and specific

authority such as conferred by Subchapter VI? Ifthe HAPs

regulatory framework is unsuited to control substances that

deplete the ozone layer, why is it not unsuited to control

substances suspected of enhancing the greenhouse effect?

EPA has not evaluated whether it would have had authority to

phase out ozone-depleting substances under section 112 of the

Act. Congress gave EPA explicit and more detailed authority

to address ozone-depleting substances under section 157 of the

1977 Clean Air Act and under Title VI of the Clean Air Act as

Amended in 1990. Thus, the issue of whether EPA had

authority under other provisions of the Act never arose.

6. Could EPA have phased out Freon 12 and other ozone-

depleting substances under the National Ambient Air

Quality Standards (NAAQS) program, or did EPA require

new and specific authority such as conferred by Subchapter

VI? If the NAAQS regulatory framework is unsuited to

control substances that deplete the ozone layer, why is it not

also unsuited to control substances suspected of enhancing

the greenhouse effect?

EPA has not evaluated whether it has authority to phase out

ozone-depleting substances under the NAAQS program. Please

see the answer to question 5.

7. EPA contends that the NAAQS program is a potential

source of authority to regulate emissions of CO,. However

as section 107(a) of the Clean Air Act makes clear,

“ambient” air is that which surrounds people and

communities in particular “geographic” areas or regions.

Indeed, EPA’s own definition of “ambient air” is “that

portion of the atmosphere, external to buildings, to which

the general public has access” (40 C.F.R. section 50.1(e)).

In contrast, the supposed enhancement of the greenhouse

effect by CO, emissions is a global phenomenon of the

troposphere, a layer of the atmosphere to which the general

public does not normally have access. Furthermore, CO,

emissions have nothing to do with the “quality”

(breathability or clarity) of ambient air. By what logic,

then, might EPA ever classify CO, emissions as an “ambient

air quality” problem? By what logic might EPA ever

regulate CO, under the same authority that it now regulates

soot and smog?

It is important to note, as a threshold matter, that EPA does not

have under active consideration use of the NAAQS provisions

to regulate CO,, as posed by this question. As stated in the

April 10, 1998 Cannon memorandum on authority to regulate

pollutants from electric power generation prepared for the

Administrator and reiterated in my testimony, “[w]hile CO,, as

an air pollutant, is within EPA’s scope of authority to regulate,

the Administrator has not yet determined that CO, meets the

criteria for regulation under one or more provisions of the Act.”

I further stated in my testimony that EPA has not proposed and

has no current plans to propose to regulate CO,.

That said, I would like to clarify several apparent

misunderstandings regarding EPA’s authority to establish

national Ambient Air Quality Standards or take other actions

under Title 1 of the Act.

First, your question appears to be premised on the proposition

that the troposphere does not include the air at ground level, to

which people ordinarily have access. It is our understanding,

however, that the troposphere extends from the earth’s surface

up to a boundary layer some miles overhead that demarcates

the lower reaches of the stratosphere (the “tropopause”’). For

example, a standard dictionary definition of the “troposphere”

is: “[t}he lowest atmospheric region between the earth's surface

and the tropopause.” Webster’s II New Riverside Dictionary.

As you note, global warming is largely attributed to elevated

levels of greenhouse gases in the troposphere.

Second, EPA currently regulates under Title I substances that

are emitted and/or transported through parts of the troposphere

above the height to which the public generally has access. For

example, humans generally do not have access to the area

immediately surrounding the top of tall smoke stacks. Nor do

people generally have access to the altitudes through which air

pollutants travel as they mix and move to areas downwind.

Finally, the authority of sections 108 and 109 is not limited to

pollutants that affect the “breathability or clarity. . . of ambient

air.” Sections 108 and 109 refer to adverse effects on public

health, without specifying inhalation as the only relevant mode

by which adverse health effects may be caused. Further, EPA

is authorized to set national secondary ambient air quality

standards “to protect the public welfare from any known or

anticipated adverse effects associated with the presence of such

air pollutant in the ambient air.” Section 302(h) provides that

“{ajll language referring to effects on welfare includes, but is

not limited to, effects on soils, water, crops, vegetation, man-

made materials, animals, wildlife, weather, visibility, and

climate, damage to and deterioration of property, and hazards

to transportation, as well as effects on economic values and on

personal comfort and well-being, whether caused by

transformation, conversion, or combination with other air

pollutants.” (Emphasis added.) Thus, effects on climate would

be a valid basis for a secondary NAAQS, and Congress’

considerations were not limited solely to concerns about

“breathability” or “clarity” of the air.

8. As noted, EPA defines “ambient air” for purposes of

the NAAQS program as “that portion of the atmosphere,

external to buildings, to which the general public has

access” (40 C.F.R. section 50.1(e)). The general public does

not normally have access to the troposphere, where CO,

enhancement of the greenhouse effect supposedly occurs.

Would EPA have to change this definition in order to

promulgate a NAAQS for CO,?

While EPA has not considered any of the specific regulatory

language that would be associated with promulgation of a

NAAQS for CO., the question above appears likely to be an

academic question, given the specific properties of greenhouse

gases. We understand concentrations of greenhouse gases to be

essentially identical between the portions of the troposphere to

which the public has access and the portions of the troposphere

to which it does not have access. Thus, measures addressed to

limiting the concentration of greenhouse gases in the lower

reaches of the troposphere would be identical to those intended

to limit the concentration in the troposphere as a whole.

9. Assume for the sake of argument that EPA decided to

publish a NAAQS for CO,?

The types of questions posed below are ones that typically

would be resolved through an extensive rulemaking process.

For issues of this kind, such a process would typically include

scientific studies, peer-review processes, legal and policy

analyses, economic assessments, stakeholder involvement

through meetings and public comments, and a proposed and

final rulemaking. EPA has not begun such a rulemaking

process, and the assumptions underlying this question and the

following hypotheticals are not linked to any current or planned

EPA activities. Thus, EPA believes it would be inappropriate

for the Agency to speculate with regard to most of these

questions before engaging in any rulemaking process.

Responses are given below to those questions which can be

answered without such speculation.

a. Would EPA set the NAAQS above or below the current

atmospheric concentrations (360 parts per million) of CO,?

Please see the response to question 9, above.

b. If EPA set the NAAQS above current concentrations,

would not every area of the country be in attainment, even

if U.S. CO, production suddenly doubled?

Please see the response to question 9, above.

c. If EPA set the NAAQS below current concentrations,

would not every area of the countr™ be out of attainment,

even if all power plants and factories were to shut down?

Please see the response to question 9 above.

d. Has EPA ever published a NAAQS that, at the time of

publication, put every area of the country either in

attainment or out of attainment?

No, none of the NAAQS that EPA has published to date have,

at the time of publication, put every area of the country either

in attainment or out of attainment.

e. Is it EPA’s contention that the NAAQS provisions of

the Clean Air Act authorize designation of nonattainment

areas where attainment cannot be achieved without

coordinated international action? If the answer is yes, how

could EPA assure attainment of a CO, NAAQS within the

deadlines set forth in section 172(a)(2) if attainment

depends on the actions of other countries?

EPA has not considered or taken a position on the question of

whether the Clean Air Act authorizes designation of

nonattainment areas where attainment cannot be achieved

without international action. Thus, EPA also is unable to

speculate on the second part of your question above. EPA

notes, however, that Congress has contemplated that a situation

could arise under the Clean Air Act in which an area would be

unable to attain a NAAQS because of pollution transported

from other countries. Section 179B provides that EPA must

approve an implementation plan for such an area if the State

establishes that the implementation plan would be adequate to

attain and maintain the NAAQS, but for emissions emanating

from outside of the U.S., thereby allocating an appropriate

portion of responsibility for the air pollution problem to the

local area or region.

f. In light of the foregoing questions and your answers to

them, does the NAAQS program have any rational

application to a global phenomenon of the troposphere,

such as the greenhouse effect? If your answer is yes, please

describe the actions a State would be required to take in an

implementation plan to demonstrate attainment of a CO,

NAAQS set below current atmospheric concentrations.

EPA agrees that these are issues that would have to be resolved

if the Agency were to consider setting a NAAQS for CO,. As

explained above, these issues would be addressed through an

extensive rulemaking process, and hence they are not ones to

which EPA can respond at this time. EPA also has not

specifically evaluated the suitability of the NAAQS framework

for regulating greenhouse gases. However, the April 10, 1998

Cannon memo noted that with respect to the control of

emissions from electric power generating sources, the

authorities potentially available under the Act “do not easily

lend themselves to establishing market-based national or

regional cap-and-trade programs, which the Administration

favors for addressing these kinds of pollution problems.”

10. Rep. John Dingell, in a letter to Rep. McIntosh dated

October 5, 1999, states: “While it [section 103 of the Clean

Air Act] refers, as noted in the EPA memorandum, to

carbon dioxide as a ‘pollutant,’ House and Senate conferees

never agreed to designate carbon dioxide as a pollutant for

regulatory or other purposes.” Mr. Dingell further states:

“Based on my review of this history and my recollection of

the discussions, I would have difficulty concluding that the

House-Senate conferees, who rejected the Senate regulatory

provisions (with the exception of the above-referenced -

section 821)' contemplated regulating greenhouse gas

emissions or addressing global warming under the Clean

Air Act.” Do you agree with Mr. Dingell’s account of the

legislative history? If not, please explain why.

EPA agrees with Congressman Dingell that Congress did not

specifically address the question of regulation of CO, or

greenhouse gas emissions in the 1990 Amendments. However,

the relevant question here is whether the 1990 Amendments

removed or limited in some way EPA’s pre-existing general

authority under various provisions of the Act to regulate air

pollutants that meet the criteria for regulation under those

specific provisions. The fact that Congress did not enact a

proposed provision that would have mandated a pollutant’s

regulation on climate change grounds did not limit or revoke

the general discretionary authority already contained in the

Clean Air Act, prior to the 1990 Amendments.

11. Section 302(j) of the Clean Air Act defines “major

stationary source” and “major emitting facility” as any

stationary source or facility that emits 100 tons or more per

year of any air pollutant. Has EPA estimated how many

small-and mid-sized businesses and farms emit 100 tons or

more of CO, per year? If so, how many? As “major

sources” of CO, emissions, might not tens or even hundreds

of thousands of small entities suddenly become subject to

pollution control requirements, were EPA to regulate CO,?

EPA has not undertaken any estimate of the number of small-

and mid-sized business and farms that emit 100 tons or more of

CO, per year. | would note, however, that some provisions of

the Clean Air Act apply to “major stationary sources” and

“major emitting facilities,” but others do not.

' This section requires EPA to monitor - not control - CO, emissions

from certain sources.

12. At the hearing, the Subcommittees questioned you

about the apparent contradiction between the

Administration’s commitment not to implement the Kyoto

Protocol before ratification and EP A’s claim of authority to

regulate CO,. Rep. Bob Barr asked: “Can you assure the

Subcommittees that, even though EPA believes it already

has the authority to regulate CO,, EPA will not do so until

and unless the Protocol is ratified? Can you give us that

assurance?” You replied that “we have no plans to use our

existing authority to regulate carbon dioxide.” This is not

very assuring, because your response may mean merely that

EPA has no plans at this time to regulate CO,. Please

confirm or deny the following statements:

a. “EPA will not propose or issue rules, regulations,

decrees, or orders to control emissions of CO,, or prepare

to control such emissions, until and unless the Kyoto

Protocol is ratified.”

Please see response to | 2b. below.

b. “EPA will not spend taxpayer dollars to advocate or

develop programs or initiatives designed to lay the

groundwork for possible future regulation of CO,

emissions, until and unless the Kyoto Protocol is ratified.”

It would not be responsible for EPA to pledge under all

circumstances not to exercise authorities or otherwise discharge

responsibilities delegated to EPA by Congress for the purpose

of protecting public health and the environment. However, |

would like to reassure you again that EPA has no plans to use

existing authority to regulate CO, emissions.

The Administration has repeatedly stated that it will not

implement the Kyoto Protocol prior to Senate advice and

consent to ratification. EPA has at all times complied, and will

continue to comply, with the Knollenberg appropriations

restriction. As discussed in numerous pieces of previous

correspondence, there is a clear and sound distinction, however,

between implementation of the Kyoto Protocol and any of the

appropriate actions regarding greenhouse gases under existing

authorities for the purposes specified in the Clean Air Act, and

in the 1992 Framework Convention on Climate Change, which

was ratified by the Senate.

13. Rep. Barr also asked: “Are you saying that, if EPA

determines that CO, emissions endanger public health,

welfare, or the environment, EPA may regulate CO,, even

if the Senate does not ratify the Kyoto Protocol?” Your

response did not address this question but rather reiterated

EPA’s general position the Clean Air Act “did cite carbon

dioxide to be within the class of substances that could be

subject to regulation.” Therefore, please answer this

question: Does EPA believe that the Administrations’s

promise not to implement the Kyoto Protocol prior to

ratification is, inter alia, a promise not to regulate CO,

emissions prior to ratification?

As noted above, and as we have repeatedly discussed in

correspondence with you, there are many regulatory actions

that have the effect, or even the purpose, of reducing

greenhouse gases (sometimes including CO,), but not the

purpose of implementing the Kyoto Protocol.. As we have

explained in previous letters, some regulatory actions addressed

to conventional air quality objectives (e.g., measures to address

emissions of nitrogen oxides or sulfur dioxide) can have the

indirect effect of reducing greenhouse gases, depending on

technological approaches that individual firms choose for

compliance. Some provisions of the Clean Air Act authorize

regulatory actions that directly address emissions of greenhouse

gases (e.g., certain provisions of Title VI). None of these

actions has the purpose of implementing the Kyoto Protocol.

The Administrations’s commitment not to implement the Kyoto

Protocol prior to ratification is not a commitment to forego

implementing the Clean Air Act. However, as stated above,

EPA has no plans to use existing authority to regulate CO,

emissions.

14. Atthe Hearing, you said that EPA has “not commenced

the process” to determine whether CO, emissions endanger

health, welfare, or the environment. This is puzzling. The

Administration has said repeatedly that the science

underpinning the Kyoto Protocol is “clear and compelling.”

Are we now to understand that the basic science issues are

not “settled?” The actual test in the NAAQS for regulating

a substance is whether, in the Administrator’s “judgment,”

emissions of that substance “may reasonably be anticipated

to endanger public health or welfare.” Are you saying that,

in the Administrator’s judgement, there is no reasonable

basis to anticipate that CO, emissions endanger public

health or welfare?

As explained above in response to Question 9, in setting a new

NAAQS, the Administrator exercises her judgement under

sections 108 and 109 based on a record for rulemaking that

includes a formal scientific review of the risks to public health

and welfare. EPA has not commenced, with respect to CO,, the

formal scientific review process that is set forth in sections 108

and 109 regarding the setting of anew NAAQS. EPA believes,

as do the other Parties to the ratified U.N. Framework

Convention on Climate Change, that the science supporting

international action on climate change is clear and compelling.

15. Your written testimony refers to CO, as a substance of

environmental “concern.” You also contend that CO, is a

“pollutant” within the meaning of the Clean Air Act. Does

EPA not feel obligated to conduct an analysis of pollutants

of concern to determine if they should be regulated? Why

ww «

has EPA not “commenced” the process of making that

determination? When will EPA begin that process?

As | have stated, EPA has no plans to use existing authority to

regulate CO, emissions, and hence, has not commenced the

actions that would be necessary to regulate CO, emissions.

16. Professor Jeffrey Miller states that EPA “could not

promulgate a new source performance standard for carbon

dioxide” under section 111 for any category of sources

unless EPA could establish that a CO, emissions control

technology “had been adequately demonstrated for such a

category.” To your knowledge, does there exist a

commercially available, cost-effective technology to control

CO, emissions from coal-fired power plants?

Standards under section 111 are not limited to the application

of “end-of-pipe” pollution control technologies. Rather, they

can include requirements as to the design or operation of a

source, precombustion cleaning or treatment of fuels, and

inherently low-polluting or non-polluting technologies.

Regarding coal-fired power plants, one example of

commercially available, cost-effective technology to control

CO, emissions is a variety of measures to improve combustion

efficiency (“heat rate improvements”). Heat rate improvements

are currently being made at many such plants in response to the

demand for greater efficiency as the electricity market moves

‘towards competition. To say that controls exist that could be

considered for adoption should EPA set NSPS for CO, is, of

course, far from saying that EPA plans to adopt such standards.

As outlined above, EPA has no such plans.

17. The Clean Air Act expressly requires EPA to set

NAAQS for particula: > matter and ozone. Nonetheless, the

D.C. Appeals Court in American Trucking Associations,

Inc., et. al., v. EPA held that EPA, in setting new NAAQS

for those substances, construed sections of the Clean Air

Act “so loosely as to render them unconstitutional

delegations of legislative authority.” The Clean Air Act

nowhere expressly authorizes EPA to regulate CO,. Do you

think EPA regulation of CO, would be challenged in court?

If so, do you think the courts would uphold such regulation

or strike it down as a usurpation of legislative power?

In response to the first question, while we cannot precisely

predict the litigation strategy of private parties, it seems likely

that any regulation of CO, would be challenged in court.

In order to respond to your second question, allow us to clarify

several points regarding the NAAQS for particulate and ozone

and the American Trucking Association (ATA) case. First, as

you know, EPA has requested that the Justice Department

appeal the ATA case and does not agree with its delegation

ruling. Second, as indicated in prior answers, the 1970 Clean

Air Act provided EPA with authority to issue NAAQS for

particulate matter and ozone without specifically naming those

pollutants in the statute. Subsequent amendments specifically

require periodic review and revision of the named pollutants,

while maintaining EPA’s authority to add other pollutants to

the list if the statuiory criteria for listing are met. Even if the

ATA decision were ultimately upheld, EPA believes it would

retain the authority to list and regulate additional air pollutants

if the appropriate findings were made and supported in a

rulemaking record. It does not appear that the listing and

regulation of additional pollutants would create any special or

additional problems under the theory of the ATA case.

18. Your July 26, 1999 letter in response to Rep.

Mclatosh’s letter of July Ist included an “Attachment M,”

which is marked “Draft” and dated “2/18/99.” It is entitled

“Summary of Appropriations Restriction” and it is

unsigned. It discusses the fiscal year (FY) 1999 VA-HUD

and Independent Agencies Appropriations Act restriction

and concludes: “EPA may expend funds to propose or issue

a regulation for a number of purposes including the

reduction of greenhouse gas emissions, as long as the

expenditures are in implementation of existing law and not

for the purpose of implementing, or in preparation for

implementing, the Kyoto Protocol. EPA may also expend

funds on authorized nonregulatory activities.”

a. Do the Clean Air Act’s regulatory provisions include

the term “greenhouse gas emissions”? If so, please identify

the specific provisions of the Act.

The Clean Air Act sections that provide the generic regulatory

authority addressed in the April 10, 1998 Cannon memo and in

Attachment M do not include the term “greenhouse gas

emissions.” Section 821 of the 1990 Clean Air Act

amendments, which required promulgation of regulations

requiring monitoring of CO, emissions from electric power

plants, uses the term “greenhouse gases” in the title of the

section.

b. Do youinterpret the term “air pollutant” to encompass

all greenhouse gases including, for example, water vapor?

Water vapor is the most abundant greenhouse gas and it

contributes most to the natural greenhouse effect. Considering

the abundance of water vapor from natural sources, it has not

been concluded that human activities directly add amounts of

water vapor to the atmosphere that have significantly changed

its atmospheric concentrations. By contrast, human activities

have caused atmospheric concentrations of CO,, methane, and

nitrous oxide to increase by more than 30%, 145%, and 15%,

respectively, since pre-industrial times. The increasing

concentrations of these gases are strengthening the greenhouse

effect, which is expected to lead to global warming and climatic

changes. Thus, emissions of water vapor from human activities

have not been a focus of U.S. or international activities to

address climate change.

c. If you do interpret the term “air pollutant” to include

all greenhouse gases, what is the basis for the above

statement that EPA may expend funds to “propose or issue”

regulations for “reduction of greenhouse gas emissions”?

Attachment M explains EPA’s interpretation of the distinction

between activities barred under the Knollenberg appropriations

restriction and activities not barred by that provision. The full

text of the sentence that you quote is: “EPA may expend funds

to propose or issue a regulation for a number of purposes

including the reduction of greenhouse gas emissions, as long as

the expenditures are in implementation of existing law and not

for the purpose of implementing, or in preparation for

implementing, the Kyoto Protocol.” The basis for this

statement is that the appropriations restriction only limits the

types of expenditures specified in the provision--regulatory

activities for the purpose of implementation or in preparation

for implementation of the Kyoto Protocol. Attachment M

explains that to the extent that existing law authorizes

regulation of greenhouse gas emissions and such regulations

are not for the purpose of implementing or preparing to

implement the Kyoto Protocol, issuance of such regulations

would not be barred. Attachment M does not opine on the

scope or source of any existing authority to regulate greenhouse

gas emissions.

d. Which office prepared Attachment M? Did you review

it?

The Office of General Counsel prepared, and after its

preparation I had occasion to review, Attachment M.

e. What is the present status of Attachment M? Has it

been provided to Congress, other than Regulatory Affairs

Subcommittee?

Attachment M was distributed within the Agency as internal

guidance to EPA staff to ensure that they understood the

restrictions imposed by the FY 1999 appropriations restriction.

In addition to being provided to the Regulatory Affairs

Subcommittee, this document was also provided to GAO on

March 30, 1999.

19. In reply to questions by the House Science Committee

about the Administration’s new proposal for FY 2000 of a

$200 million “Clean Air Partnership Fund,” EPA declared

that “CO, and other greenhouse gases” are “each” an air

pollutant “within the meaning of the Clean Air Act.”

However, it is our understanding that the United Nations

Framework Convention on Climate Change (UNFCCC),

which was ratified after the Clean Air Act was last

amended, does not classify greenhouse gases as

“pollutants.” Rather, the UNFCCC defines greenhouse

gases as “those gaseous constituents of the atmosphere, both

natural and anthropogenic, that absorb and re-emit

infrared radiation.” (Art. 1.5).

a. Do you concur that the UNFCCC does not classify

greenhouse gases as pollutants?

b. Is there a conflict between EPA’s classification of CO,

and other greenhouse gases as “pollutants” and the absence

of such classification in the UNFCCC?

The UNFCCC is an international agreement under which

member states have committed to taking certain actions and

pursuing certain goals with respect to climate change. Member

states continue to act, however, under domestic authorities,

which may differ among member states and from the text of the

international agreement. There is no reason why the Clean Air

Act’s definition and use of the term “air pollutant” should be

reflected in the UNFCCC, nor does the absence of such

identical language in any way create a conflict. Moreover, as

we note above, for Clean Air Act regulatory purposes the

significant question is not whether a substance meets the

definition of an “air pollutant,” but whether it meets the criteria

for regulation under a particular provision of the Clean Air Act.

To be clear, we have not taken any steps under the Act to

“classify” CO,,.

[from EPA administrative record]

[US EPA Symbol]

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

WASHINGTON, D.C. 20460

Feb. 16, 2000[Date Stamped]

Office of

General Counsel

Honorable Ken Calvert

Chairman, Subcommittee on Energy and the

Environment

Committee on Science

U.S. House of Representatives

Washington, DC 20515

Dear Mr. Chairman:

I am writing in response to your letter of December 10,

1999, regarding EPA authority with respect to climate change,

which addresses certain issues from our letter of December |,

1999, responding to your letter of October 14, 1999. Attached

are our responses to your questions.

Please let me know if we can be of further assistance, or

please have your staff contact Alexandra Teitz of my office at

(202) 564-5594.

Sincerely,

s/ Gary S. Guzy

General Counsel

Attachment

1. Your response to Q1 of our October 14th letter states:

“Specific mention of a pollutant in a statutory provision is

not a necessary prerequisite to regulation under many CAA

statutory provisions.” That is correct, as we acknowledge

in Q3 of our October 14th letter. Because a law cannot

specify in advance all the circumstances to which it may

apply, and because science continually brings to light new

information regarding the health and environmental effects

of particular air emissions, the Clean Air Act (CAA)

sensibly allows the Environmental Protection Agency (EPA)

some discretion to fill in gaps and address unforeseen

contingencies as they arise. However, when Congress

amended the CAA in 1990, it was quite familiar with the

theory that man-made emissions of carbon dioxide (CO,,

cause, or are likely to cause, global warming. Indeed,

Congress had already held several hearings and debates on

the subject, including some specifically intended to inform

its deliberation on the CAA amendments. Thus, it is not the

fact that the CAA nowhere lists CO, as a substance to be

regulated, but does list numerous other substances,

evidence that Congress, in 1990, decided to reserve to itself

the power to determine, at some future date, whether or not

EPA should regulate CO,?

Please see in our December | letter our responses to Q1 and Q3

of your October 14 letter. In those responses, we discuss the

development of the CAA over time and how. this history

informs our views on the significance of the fact that Congress

did not in the 1990 Amendments require EPA to regulate CO,,.

As we stated previously, specific mention of a pollutant in a

statutory provision is not a necessary prerequisite to regulation

under many CAA statutory provisions.

Congress did not in 1990 limit the potential applicability of any

of the CAA regulatory provisions of CO, Thus, in our view,

. the CAA does not express a decision by Congress not to

regulate CO, unless it should determine to do so at some future

date.

2. Your response to Q2 of our October 14th letter states:

“Nor does the language in sections 103(g) and 602(e) limit

in any way the regulatory authority provided by other

provisions of the Clean Air Act.” These two-sections are the

only CAA provisions that mention CO, and global

warming, and, as you acknowledge, they “do not themselves

provide authority to regulate.” Thus, your interpretation

is paradoxical, to say the least. To wit; although sections

that mention CO, and global warming do not provide

authority to regulate greenhouse gasses, “other provisions”

that are completely silent about CO, and global warming do

provide such authority. We regard this interpretation as

not only paradoxical but wrong, because it effectively

negates the limitations on EPA’s authority set forth in

103(g) and 602(e). After all, if “other provisions” already

authorize EPA to regulate greenhouse gases, then the

admonitions against assuming such authority in sections

103(g) and 602(e) are a practical nullity. If Congress

intended to delegate to EPA the authority to regulate

greenhouse gases, why did it admonish EPA not to assume

such authority in the only CAA provisions dealing with CO,

and global warming?

In section 103(g), Congress directed EPA to establish a

program with the purpose of demonstrating nonregulatory

strategies for pollution prevention. It makes sense that

Congress did not intend for this provision to be construed to

mandate or authorize a broad new regulatory program

mandating pollution prevention. Similarly, section 602(e) is

specifically targeted to providing information regarding the

ozone-depletion potentials and global warming potentials of a

variety of substances. Again, Congress did not intend for this

information provision to be construed to mandate or authorize

a broad new regulatory program to regulate greenhouse gases.

Neither of these provisions is structured to direct the exercise

of regulatory authority. For example, neither contain criteria

specifying the circumstances under which regulation is

appropriate. By contrast, the regulatory provisions of the Act

do specify such criteria and the structure of the regulations

authorized by those provisions. Thus, it makes sense that

Congress would not intend the Agency to regulate substances

under authorities provided for nonregulatory activities. The

language in sections 103(g) and 602(e) does not directly or

indirectly limit the regulatory authorities provided to the

Agency elsewhere in the Act. Nor does that language negate

the fact that Congress explicitly recognized in these provision

that CO, was an “air pollutant.”

3. Wedo not find persuasive your response to Q3 of our

October 14th letter. We asked: “What is the significance

of the fact that the Act nowhere expressly authorized the

Administrator to list and promulgate regulations to control

substances that may be reasonably anticipated to cause or

contribute to global warming?” You answered that the

1977 and 1990 CAA amendments “generally left intact, and

in some cases extended, EPA’s general authority to identify

and regulate additional air pollutants if they meet the

criteria of relevant sections of the Act. Thus, the absence of

specific provisions addressing a particular air pollution

problem does not mean that EPA lacks authority to address

that problem.” This response blurs the immense practical

difference between the authority to list and regulate

“additional air pollutants” within an established regulatory

scheme and the authority to create new regulatory schemes.

A “particular air pollution problem” may be very specific

(e.g., the impact of carbon monoxide (CO) emissions from

automobiles on ambient air quality) or very broad (e.g., the

impact of all auto and industrial emissions on ambient air

quality). Although we agree that EPA could list and control

CO without a specific provision mentioning it, we do not

agree that EPA could control CO without specific

provisions authorizing EPA to protect ambient air quality.

To put this in the language of Chevron v. NRDC, which you

site, there is a world of difference between EPA filling in a

“gap left, implicitly or explicitly, by Congress” in a

“congressionally created . . .program” and EPA’s

arrogating to itself the pewer to create new programs.

Adding a chemical to the list of ambient air pollutants, or

the list of hazardous air pollutants, or the list of ozone-

depleting substances, is merely filling “gaps” in

“congressionally created” programs. However, Congress

has never created a greenhouse gas emissions control

program; it has never created a regulatory global warming

mitigation program. Thus, if EPA were to attempt to

bootstrap such a program into existence, citing CAA

sections 108, 111, 112, or other provisions, this would not be

an exercise in filling “gaps.” It would be a usurpation of

legislative power.

Therefore, please answer the following questions:

(a) Do you acknowledge that there is a vital practical

distinction between filling gaps in existing programs and

creating new programs?

As you use the term here, we are not certain what you would

consider to constitute a distinct “program.” One can identify

practical differences between activities such as applying

existing requirements to a new set of sources or additional

pollutants, and setting up a new control regime to address a

previously overlooked environmental problem from previously

unregulated sources, as the latter is likely to require greater

Agency resources, public education efforts, etc. As long as

both types of activities are authorized by law, we do not see a

general legal distinction between them, however.

(b) Do you agree that EPA may not create new programs

without clear and express Congressional authorization?

EPA may not act without Congressional authorization. We do

not believe that the question of whether a “new program” is

authorized by Congress would be addressed any differently

from the question of whether any EPA activity is authorized by

Congress.

substances based upon their global warming potential is as

clear and certain and unambiguous as EPA’s authority to

control substances based upon their impact on ambient air

quality, their toxicity, or their potential to damage the

ozone layer?

Whether EPA has authority to control any air pollutant under

the CAA depends upon whether EPA finds that the pollutant

meets the particular criteria for regulation specified under a

provision of the Act. As EPA has no current plans to propose

regulations for CO,, EPA has not evaluated the strength of the

technical and legal basis for such findings under any particular

provision of the Act. Under section 612 of the Act, EPA has

already addressed certain other substances that are substitutes

for ozone-depleting substances based on their global warming

potentials, and we believe we had clear authority for those

steps.

4. Your response to Q4 of our October 14th letter argues

that EPA could, in principle, regulate CO, as a hazardous

air pollutant (HAP) because the class of hazardous air

pollutants is “not limited to those that are highly toxic and

endanger health or the environment through direct

exposure.” You contend that all EPA has to do to list a

substance as a HAP to determine that it has an “adverse

environmental effect,” defined in section 112(a)(7) as “any

significant and widespread adverse effect” on “wildlife,”

“aquatic life,” “other natural resources,” or

“environmental quality over broad areas.” We disagree.

Under that interpretation, EPA could regulate all ambient

air pollutants and all ozone-depleting substances as HAPs.

However, in section 112(b)(2), Congress took care to

preclude any such expansive interpretation of EPA’s

authority to list and regulate HAPs. Section 112(b)(2) limits

EPA’s authority with respect to substances that have

adverse environinental effects, and when that limitation is

taken into account, it becomes clear that EPA cannot

possibly list CO, as a HAP.

Section 112(b)(2) does indeed direct the Administrator to

add pollutants to the list of HAPs that present a “threat of

... adverse environmental effects,” but with two important

exceptions. First, “No [ambient] air pollutant which is

listed under section 7408(a) [section 108(a)] of this title may

be added to the list under this section,” unless the pollutant

“independently meets the listing criteria of this paragraph.”

Second, “No substance, practice, process or activity

regulated under subchapter VI [on stratospheric ozone

protection] of this chapter shall be subject to regulation

under this section solely due to its adverse effects of the

environment.” In other words, the fact that ambient air

pollutants such as CO,, sulfur dioxide (SO,), and particulate

matter, or ozone-depleting substances such as Freon-12,

may have a “significant and widespread adverse effect” on

the environment is not sufficient warrant to [sic] classify

them as HAPs. Those pollutants must also meet the

independent criteria established by section 112.

Section 112 does not provide an exhaustive description of

those criteria, using phrases (“including, but not limited

to,” “whether through ambient concentrations,

bioaccumulation, deposition, or otherwise”) that give EPA

reasonable discretion to address unanticipated health or

environmental threats. Nonetheless, section 112 mentions

enough criteria to make intelligible the distinction between

hazardous air pollutants, on the one hand, and either

ambient air pollutants or ozone-depleting substances, on the

other. Hazardous air pollutants include those that “are

known to be, or may reasonably be anticipated to be,

carcinogenic, mutagenic, teratogenic, neurotoxic, which

cause reproductive dysfunction, or which are acutely or

chronically toxic.” Furthermore, the actual listing of some

190 HAPs in the statute is strong textual evidence of what

Congress meant by “hazardous.” Clearly, “hazardous air

pollutants” are the nastiest of the nasties - or, as we said in

our October 14" letter, substances that are “highly toxic

and endanger{[] health or the environment through direct

exposure.”

Several questions emerge from foregoing discussion:

(a) Anambient air pollutant like SO, may not be classified

as a HAP unless it “independently meets the listing

criteria” of seetion 112(b){2). What are the criteria for

listing under section 112 that SO, and the other

ambient air pollutants do not independently meet?

Section 112(b)(2)provides: “No air pollutant which is listed

under section 108(a) may be added to the list under this section,

except that the prohibition of this sentence shall not apply to

any pollutant which independently meets the listing criteria of

this paragraph _and is a precursor to a pollutant which is listed

under section 108(a) or to any pollutant which is in a class of

pollutants listed under such section.” (Emphasis added.) Thus,

a pollutant already listed as a criteria pollutant under section

108(a) may be listed under section 112 only if it is a precursor

to a criteria pollutant and it meets the criteria for listing under

section 112(b)(2).

(b) Under what criteria might EPA list CO, as a HAP but

not list any of the ambient air pollutants as HAPs?

EPA could list a pollutant as a HAP if the Administrator

determined that it was a pollutant that may present, through

inhalation or other routes of exposure, adverse human health

effects or “adverse environmental effects whether through

ambient concentrations, bioaccumulation, deposition, or

otherwise.” As noted above, EPA could not list a criteria

pollutant listed under section 108 as a HAP unless it (1) was

also a precursor to a criteria pollutant listed under section 108,

and (2) met the criteria listed above. EPA could list a criteria

pollutant as a HAP if it met both of these requirements.

substance shall be classified as a HAP “solely due to its

adverse effects on the environment.” If no ozone-

depleting substance may be listed as a HAP solely due

to its adverse environmental effects, does it not stand to

reason that no greenhouse gas may be listed solely due

to its adverse environmental effects? Indeed, is not the

exemption of greenhouse gases from listing under

section 112 even stronger than that for ozone-depleting

substances, inasmuch as the CAA nowhere expressly

authorized EPA to regulate greenhouse gases.

It appears that Congress precluded the listing of an ozone-

depleting substance “solely due to its adverse effects on the

environment” because Congress believed that those substances’

environmental effects would be adequately addressed under

Title VI. Congress left open the possibility that EPA could

issue regulations under section 112 if an ozone-depleting

substance also has effects on public health that were not

adequately addressed under Title VI. Since section 112 says

nothing precluding the listing of greenhouse gases (or, for that

matter, any other pollutants not regulated under Title VI) on

environmental grounds alone, EPA does not agree with the

conclusion in the last sentence of your question.

(d) Under what criteria might EPA list CO, as a HAP but

not list Freon -12?

As noted above, EPA could not list Freon-12, which is an

ozone-depleting substance covered by Title VI, as a HAP

unless the Administrator determined that Freon-12 was a

pollutant that may present, through inhalation or other routes of

exposure, adverse human health effects. This limitation on the

use of section 112 to address a pollutant covered by Title VI

simply does not apply to CO,,.

5. In Q5 of our October 14" letter, we asked whether EPA

could have phased out Freon-12 and other non-toxic ozone-

depleting substances under its authority to regulate HAPs

or whether EPA required new and specific authority, such

as conferred by subchapter VI. We further asked whether,

if the HAPs framework is unsuited to control substances

that deplete the ozone layer, it might not also be unsuited to

control substances suspected of enhancing the greenhouse

effect. You replied, “EPA has not evaluated whether it

would have had authority to phase out ozone-depleting

substances under section 112 of the Act.” We regard that

answer an non-responsive. Our question was not whether

EPA has or has not conducted an evaluation, but whether

it has the authority in question. We think the answer to our

question is clear. As noted above, section 112(b)(2)states:

“No substance, practice, process or activity regulated under

subchapter VI [on stratospheric ozone

protection] of this chapter shall be subject to regulation

under this section solely due to its adverse effects on the

environment.” In short, the HAPs framework is unsuited

to control substances that deplete the ozone layer. Do you

agree?

Please see our answer above to question 4(c). We also note that

Congress included on the section 1 12(b)(1) list of HAPs several

substances that deplete the ozone layer (e.g. methyl bromide,

carbon-tetrachloride (CC1,).

6. In Q6 of our October 14" letter, we asked whether EPA

could have phased out Freon-12 and other ozone-depleting

substances under the National Ambient Air Qualitiy

Standard (NAAQS) program, or whether EPA required

new and specific authority, such as that conferred by

subchapter VI. We further asked whether, if the NAAQS

framework was unsuited to control ozone-depleting

substances, it might not also be unsuited to control

substances suspected of enhancing the greenhouse effect.

You replied, “EPA has not ev

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