# Joint Appendix — Massachusetts v. EPA > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2007 - **Citation:** 549 U.S. 497 ## Text FILED D AUG 3 0 2006 ER \ 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 10/23/03 10/23/03 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 12/23/03 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 2 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 3 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 8 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. 10 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. 12 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]. 13 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...) 14 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). 15 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.” 16 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 17 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...) 18 (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. © EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990- 1997, 36 (Mar. 1999). *” U.S. Climate Action Report, Ex. 3 at 13. 19 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. 20 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.) 21 (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. 22 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. 23 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. 24 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 © IPCC, Ex. 4 at 8. *? 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. 25 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. 26 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. 27 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. © IPCC, Ex. 4 at 10. ” * Ig 28 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). 29 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 *© EPA, Global Warming, http://www.epa.gov/globalwarming/impacts/water/index.html. 81 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. 30 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. 31 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. ol Id. 32 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 33 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. 34 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. 35 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. 36 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. 37 (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. 38 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, . 39 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. 40 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). 41 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. 42 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). 43 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.. 44 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 45 {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 46 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. 47 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. 48 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.”). 49 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...) 50 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,). 51 — ———_ —_ —__ —__ 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. : 52 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...) 53 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. 54 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. 55 [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 56 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 57 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 58 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 59 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 60 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 61 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. 62 {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 63 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 65 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 66 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 67 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 68 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? 69 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 70 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 71 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 72 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? 73 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 a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A10. Public record. Not legal advice.