Petitioners Brief — Massachusetts v. EPA

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

a ee ar Ta

FILED DATE :

13 AUG 31.2006

No. 05-1120

In the Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, ET AL., Petitioners

ENVIRONMENTAI. PROTECTION AGENCY, ET Al.., Respondents

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE PETITIONERS

THOMAS F. REILLY

Attorney General of Massacliuisetts

LISA HEINZERLING

Special Assistant Attorney General

600 New Jersey Ave., N.W.

Washington, D.C. 20001

JAMES R. MILKEY*

WILLIAM L. PARDEE

CAROL IANCU

Assistant Attorneys General

1 Ashburton Place, 18"* Floor

Boston, MA 02108

(617) 727-2200

*Counsel of Record

Attorneys for Petitioners

(Additional Counsel listed on Signature Pages)

‘ s

: a

— ————

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmental

Protection Agency has authority to regulate air pollutants

associated with climate change under section 202(a)(1) of the

Clean Air Act, 42 U.S.C. 7521(a)(1).

2. Whether the EPA Administrator may decline to issue

emission standards for motor vehicles based on policy

considerations not enumerated in section 202(a)(1) of the

Clean Air Act.

(1)

PARTIES TO THE PROCEEDING

Petitioners, who were petitioners in the court of appeals,

are the Commonwealth of Massachusetts, the States of

California (acting by and through Governor Arnold

Schwarzenegger, the California Air Resources Board, and

Attorney General Bill Lockyer), Connecticut, Illinois, Maine,

New Jersey, New Mexico, New York, Oregon, Rhode Island,

Vermont, and Washington, the District of Columbia, American

Samoa Government, New York City, the Mayor and City

Council of Baltimore, Center for Biological Diversity, Center

for Food Safety, Conservation Law Foundation,

Environmental Advocates, Environmental Defense, Friends of

the Earth, Greenreace, International Center for Technology

Assessment, National Environmental Trust, Natural Resources

Defense Council, Sierra Club, Union of Concerned Scientists,

and U.S. Public Interest Research Group.

Respondents are the Environmental Protection Agency (a

respondent below), the Alliance of Automobile Manufacturers,

National Automobile Dealers Association, Engine

Manufacturers Association, Truck Manufacturers Association,

CO? Litigation Group, Utility Air Regulatory Group, and the

States of Michigan, Alaska, Idaho, Kansas, Nebraska, North

Dakota, Ohio, South Dakota, Texas, and Utah (all intervenors

below).

CORPORATE DISCLOSURE STATEMENT

The statement in the Petition for Certiorari remains

accurate.

(Il)

TABLE OF CONTENTS

EN su dives eesesnecgdndctedestecoudauanes

ene svn ne eee ee kG 600K SE4 SO RRRaRM Rens

Statutory provisions involved ..............ce eee eens

Pc ch ee uevsud kheed dens uien cokuaunindseas

Re OIE s 6 ov incsccnncudcesconseuesees

Argument:

I. EPA has authority to regulate air pollutants

associated with climate change under section

202(a)(1) of the Clean Air Act..................

A. The chemicals at issue here are “air

pollutants” subject to regulation under

eC (tttitié(‘(‘“‘éR ERR RR NE Se

B. EPA erred in finding, in failed bills and

separate provisions of the Clean Air Act and

other statutes, a congressional intent to forbid

EPA to regulate air pollutants associated with

climate change under section 202(a)(1).......

C. EPA’s interpretation deserves no deference . .

II. EPA may not decline to issue emission standards

for motor vehicles based on policy considerations

not enumerated in section 202(a)(1) of the Clean

a 65 0404 0606s 00 ateeeustadaveeeetbader

A. The only relevant factor under section

202(a)(1) is whether air pollution from motor

vehicles “may reasonably be anticipated to

endanger public health or welfare” .........

B. The policy judgments EPA cited in refusing to

regulate air pollutants associated with climate

change were irrelevant under section

202(a)(1) or failed to take account of the

statutory endangerment standard...........

(II!)

Table of Contents — Continued: Page

C. Section 202(a)(1)’s _ reference to the

Administrator's “judgment” does not give the

Administrator unfettered discretion in

deciding whether to regulate air pollution

Ie CRs fs. skcsectucesaasenaake 44

Conclusion

TABLE OF AUTHORITIES

Cases:

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126

Dep Ns 6 Ss 0800nsey uss ay einwannd see 11

Cent. Bank of Denver v. First Interstate Bank of Denver,

PEE ED SU EMOUER be eebavbsseccpenbaneouenes 21, 22

Cent. Valley Chrysler-Jeep, Inc. v. Witherspoon, No.

1:04 CV-06663-AWI-LJO (E.D. Cal.)............ 6

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467

ce, Tee eee 17, 18, 32

Chickasaw Nation v. United States, 534 U.S. 84(2001).. 14

Clark v. Benitez, 543 U.S. 371 (2005) .............-2.. 17

Consumer Product Safety Comm’n v. GTE Sylvania,

eee ee 37

Cook County, Ill. v. United States ex rel. Chandler, 538

PO BOIS 540. 00000084000een0neneesaanne 23

Dept. of Hous. and Urban Dev. v. Rucker, 535 U.S. 125

GREE 6 vec Sit keaneeess snbnneehemmueeen en) ae

Diamond v. Chakrabarty, 447 U.S. 303 (1980) ...... 13, 25

Dolan v. U.S. Postal Service, 126 S.Ct. 1257 (2006) ..... 46

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)....... 42

Table of Cases — Continued: Page

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

ee 4,8, 12, 18, 19, 20, 21

FTC v. Ken Roberts, Co., 276 F.3d 583 (D.C. Cir. 2001).. 30

General Motors Corp. v. NHTSA, 898 F.2d 165 (D.C.

Sinaia scdbednbahbonetebeceteceteoses 35

General Motors Corp. v. United States, 496 U.S. 530

EEE ET CO OE TT TTT ee ee eee eT Ee 38

Gonzales v. Oregon, 126 S.Ct. 904 (2006)............. 45

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999).... 11

Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607 (1980)...... Resi ReNedeuseeHeiececs 41

In re Henderson's Tobacco, 78 U.S. 652 (1870)......... 23

Jama v. Immigration & Customs Enforcement, 543 U.S.

DU ithhhGsedhebedesseecssvscesees esees 37

].E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc.,

a 13, 31

Leocal v. Ashcroft, 543 U.S. 1 (2004)................. 46

Morton v. Mancari, 417 U.S. 535 (1974) .............. 31

Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29 (1983) ........... 38, 41

P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69 (1979) ....... 14

Posadas v. Nat'l City Bank, 296 U.S. 497 (1936) ........ 23

Pub. Citizen Health Research Group v. Chao, 314 F.3d

Se cbcntadddcbedétcecevescececees 41

Pub. Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989). 25

Russello v. United States, 464 U.S. 16 (1983) .......... 37

$.D. Warren Co. v. Maine Bd. of Envtl. Prot., 126 S.Ct.

ithe eidnbhdnstnddecese+eeseesees 14

SEC v. Chenery Corp., 318 U.S. 80 (1943) ........... 41

Small Refiner Lead Phase-Down Task Force v. EPA, 705

NEG DUE 6 cecccccccecscecveccecs 41

Table of Cases —Continued: Page

Smith v. Allwright, 321 U.S. 649 (1944) ............ 10

Solid Waste Agency of N. Cook County v. US Army

Corps of Eng’rs, 531 U.S. 159 (2001) ............... 21

Teamsters v. United States, 431 U.S. 324 (1977) ........ 21

Thompson Med. Co. v. FTC, 791 F.2d 189 (D.C. Cir.

DU HONASS Vicdbbrcicpegeubsabunbuieeddeneene 30

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ....... ane i

United States v. Craft, 535 U.S. 274 (2002) ............ 21

United States v. Gonzales, 520 U.S. 1 (1997) ........... 13

United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir.

nG4 dddues copdieuesauntiscdedstbbiatenoe 37

United Steelworkers of America v. Marshall, 647 F.2d

Se UD Ms coccduscscaderescssecesoss 41

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

PECs ih nbbewnbdedocdedeiesccscavesden 28, 38, 47

Statutes:

Pe Me de cnckveccdsecvecucincesticess 1

NS SNenes davetesctosesdcsvevensans 30

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

Fee he is PENNE oc cccciccccccccesesss 1

§ 101(b), 42 U.S.C. 7401(b) ... 2.2... 35

§ 101(b)(1), 42 U.S.C. 7401(b)(1) ... 2.6... ee. 15

§ 103(g), 42 U.S.C. 7403(g)............... 17,22

§ 103(g)(1), 42 U.S.C. 7403(g)(1).............. 16

§ 108-110, 42 U.S.C. 7408-7410. ... 2.0... 2.0.44. 27

§ 108(e), 42 US.C. 7EGB(a) .. 0.2... eee eeceee. 26

§ 108(a)(1), 42 U.S.C. 7408(a)(1)............. 29

§ 108(a)(1)(A), 42 U.S.C. 7408(a)(1)(A).... 29, 46

Vil

Statutes — Continued:

§ 109%a), 42 U.S.C. 740%a).............

§ 109(b)(1), 42 U.S.C. 7409(b)(1)...2.......

§ 109(b)(1)-(2), 42 U.S.C. 7409(b)(1)-(2).....

§ 109(d), 42 U.S.C. 7409(d)............0-.

§ 111(a)(1), 42 U.S.C. 7411(a)(1)...........

§ 111(b)(1), 42 U.S.C. 7411(b)(1) ...........

§ 111(b)(1)(A),

42 U.S.C. 7411(b)(1)(A). .15, 16, 26, 34, 35, 39,47

§ 111(d)(2)(B), 42 U.S.C. 7411(d)(2)(B) ......

§ 111(h)(1), 42 U.S.C. 7411(h)(1)...........

§ 111()(1)(A)(iv), 42 U.S.C. 74114)(1)(A)(iv)

-§ 112(a)(1), 42 US.C. 7412(a)(1)...........

§ 112(b)(1), 42 U.S.C. 7412(b)(1)...........

§ 112(b)(2), 42 U.S.C. 7412(b)(2)...........

§ 112(b)(3)(B), 42 U.S.C. 7412(b)(3)(B) ......

§ 112(d), 42 U.S.C. 7412(d)............0-.

§ 112(f)(1)-(2), 42 U.S.C. 7412(f)(1)-(2) ......

§ 112(f)(1), 42 U.S.C. 7412(f)(1)............

§ 112(F)(2)(A), 42 US.C. 7412(f)(2)(A) ......

§ 112(h)(1), 42 U.S.C. 7412(h)(1)...........

§ 112(r)(6), 42 U.S.C. 7412(r)(6)......... 00.

ND Raa

RE EERE RR ESET lett

§ 188(e), 42 U.S.C. 7513(e)............00..

Tit. Il, 42 U.S.C. 7521 et seq.:

TE 40 dundécdsecdncdeues

§ 202(a), 42 US.C. 7521(a)........ 20.0 eee,

a»

§ 202(a)(1), 42 U.S.C. 7521(a)(1).... 1,2,3,10, 13,

15, 29, 30, 31, 36, 39, 41

§ 202(a)(2), 42 U.S.C. 7521(a)(2).........

. 20, 36

Vill

Statutes — Continued: Page

§ 202(a)(4)(A), 42 U.S.C. 7521(a)(4)(A) ,...... 36

§ 202(b)(3)(C), 42 U.S.C. 7521(b)(3)(C) ....... 31

§ 202(d)(2), 42 U.S.C. 7521(d)(2) ............. 28

§ 209(a), 42 U.S.C. 7543(a).. 0... eee eee, 28

§ 209(b), 42 U.S.C. 7543(b)................ 6,28

§ 209(c)(2)(B), 42 U.S.C. 7543(c)(2)(B)........ 36

§ 209(c), 42 U.S.C. 7545(c)... 2... eee ee ee. 15, 26

§ 209(c)(1), 42 U.S.C. 7545(c)(1) .... . 35, 39, 46, 47

§ 213(a)(3)-(4), 42 U.S.C. 7547(a)(3)-(4) ....... 47

& 4 es 25, 46

Tit. II], 42 U.S.C. 7601 et seq.:

§ 301(g), 42 U.S.C. 7602(g).......... 1,8, 12, 13

§ 302(h), 42 U.S.C. 7602(h)................ 2,15

Tit. IV-A, 42 U.S.C. 7651 et seq.:

uncodified § 821,42 U.S.C. 7651k............ 17

Tit. V1, 42 U.S.C. 7671 et seq.:

§§ 601-618, 42 US.C. 7671-7671q........... 26

§ 602(e), 42 U.S.C. 767la(e)................. 22

Pe as PUN ac ccnescnecescsevess 47

Es PEERS ne cnbedcovnusevencaes 34

Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392. . 24

Clean Air Act Amendments of 1970, Pub. L. No.

91-604, § 211(c)(1), 84 Stat. 1676................ 26

Clean Air Act Amendments of 1970, Pub. L. No.

91-604, § 6(a), 84 Stat. 1676, 1690............... 42

Clean Air Act Amendments of 1977, Pub. L. No.

I td 27

Clean Air Act Amendments of 1977, Pub. L. No.

BE CE 8 ee 41

Statutes — Continued: Page

Energy Policy Act of 1992, Pub. L. No. 102-486,

re SE ETA 6 00k cecsseccnvencncees 23

Energy Policy and Conservation Act,

49 U.S.C. 32901 et seq.:

GO UBA,. FSO EE oo cccccccccvcrcese 29, 30

me eee 30°

og PT Te 31

SP Es oc tonnscedecucncqeurnet 30

ac netoscowsescncenageasa 30

Se EN Kod cnscredercbavcnercins 31

Food, Agriculture, Conservation, and Trade Act of

1990, Pub. L. No. 101-624, Title XXIV,

I ws 6045 cescnguesuuessadases cneces 23

Foreign Relations Authorization Act of 1987,

Pub. L. No. 100-204, Title XI, 101 Stat. 1331 ...... 22

Global Change Research Act of 1990, Pub. L.

No. 101-606, 104 Stat. 3096...............00008. 23

National Climate Program Act of 1978, Pub. L.

Fe Cy CED vcacvcccucsccsvcsececns 22

Pub. L. No. 86-493, 74 Stat. 162 (1960) .............. 24

Veterans Affairs and HUD Appropriations Act of

1998, Pub. L. No. 105-276, 112 Stat. 2461 ........ 23

Federal Register: G

ne 26

PW BOM. FUND, TRO IGT on nc ccccccccccccccccocces 26

Jo FOG. Mag, TSDOE (199E) ... cs ccccccccccccecs 33

ee In os ck cétadcuseesepdeteoeas 34

a, rere re 34

Se CIs ntcdycuavsecakouskeuees 33

Federal Register — Continued: Page

cit kevniceasukasesdiveucs 3

oS ee 6

CD FOG. FUG, TEP GOOD occ cece cececcteccccvecee’ 3

eer 33

FO CU GUE, CEPOU GIO on a pec cccccessecccccceces 27

70 Fed. Reg. 28606 (2005)... ...........0.008- 27, 40

ee 39

Miscellaneous:

IE <n crccudtaditiodsebbewecens 23

Energy Information Administration, Emissions of

Greenhouse Gases in the United States 2004 (Dec.

EES bnconeudbersuiveuedébacoibvsseonks 40

H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977) . . 32, 42,45

H.R. 221, 106th Cong., §§ 3(b), 2(a)(2) (1999) .......... 21

S. Rep. No. 54, 105th Cong., Ist Sess. (1998) ......... 23

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A58) is

reported at 415 F.3d 50. The order denying the petition for

rehearing is reproduced at Pet. App. A98. The order denying

the petition for rehearing en banc (Pet. App. A94-A95) and the

dissenting statement on denial of rehearing en banc (Pet. App.

A96-A97) are reported at 433 F.3d 66.

JURISDICTION

The court of appeals entered its judgment on August 15,

2005 (Pet. App. A99-A100). Petitions for rehearing and

rehearing en banc were denied on December 2, 2005. The

petition for a writ of certiorari was filed on March 2, 2006, and

granted on June 26, 2006. The jurisdiction of this Court rests

on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant sections of the Clean Air Act, 42 U.S.C. 7401 et

seq., are set forth at Pet. App. A101-A102.

INTRODUCTION AND STATEMENT

The statutory framework governing this proceeding is

straightforward. Physical or chemical matter that is emitted

into the ambient air is an “air pollutant” under the Clean Air

Act. 42 USC. 7602(g). The Administrator of the

Environmental Protection Agency (EPA) “shall” set standards

for air pollutants emitted by new motor vehicles when, in the

Administrator's judgment, they “cause, or contribute to, air

pollution which may reasonably be anticipated to endanger

public health or welfare.” 42 U.S.C. 7521(a)(1). “Climate” and

“weather” are components of “welfare.” 42 U.S.C. 7602(h).

Carbon dioxide, methane, nitrous oxide, and

hydrofluorocarbons are physical and chemical matter. They

are emitted into the ambient air by motor vehicles. A

prodigious amount of scientific evidence indicates that they

are changing our climate. Several parties asked EPA to

regulate these chemicals under section 202(a)(1) of the Clean

Air Act because they are “air pollutants” that “may reasonably

be anticipated to endanger public health and welfare.”

EPA denied the petition. Its decision rested on two

fundamental errors of law. First, EPA concluded that it had

no authority under section 202(a)(1) to regulate air pollutants

associated with climate change, and that therefore the

chemicals at issue here are not “air pollutants” within the

meaning of the Act. Second, the agency decided that even if it

had such authority, it would not exercise it, on account of

various ad hoc policy considerations not enumerated in

section 202(a)(1). The same mistake dooms both legal

conclusions: EPA distorted two statutory terms (“air

pollutant” and “judgment”) and ignored a third (“welfare”) in

order to inject its own policy preferences into a statute that

does not embody them.

EPA’s misguided legal conclusions diverted it from the

serious scientific inquiry at the heart of section 202(a)(1).

Section 202(a)(1) requires the EPA Administrator to set

standards for air pollutants emitted by new motor vehicles

“which in his judgment cause, or contribute to, air pollution

which may reasonably be anticipated to endanger public

health or welfare.” 42 U.S.C. 7521(a)(1). EPA did not apply

that standard, and it.denied the petition without deciding

whether carbon dioxide, methane, nitrous oxide, and

hydrofluorocarbons may, due to their effects on climate,

reasonably be anticipated to endanger public health or

welfare. To the extent the agency mentioned the science of

climate change at all, it provided little more than a bullet-point

list of scientific issues that remain incompletely resolved.

Petitioners ask this Court to correct EPA’s legal errors and

to remand the case to the agency with directions to apply the

correct legal standard to this matter; that is all. A judgment in

favor of petitioners will not mandate regulation of air

pollutants associated with climate change, nor will it dictate a

particular answer to the question whether such pollutants are

endangering public health or welfare. It will, however, ensure

that the question whether to regulate these pollutants is

evaluated according to the legal standard set forth in the Clean

Air Act.

I. Proceedings Before EPA

In 1999, the International Center for Technology

Assessment and other parties petitioned EPA to set standards

for four chemicals emitted by new motor vehicles: carbon

dioxide, methane, nitrous oxide, and hydrofluorocarbons. The

petition asserted that, due to effects on climate, motor vehicles

emitting these chemicals cause or contribute to “air pollution

which may reasonably be anticipated to endanger public

health or welfare” within the meaning of section 202(a)(1) of

the Clean Air Act, 42 U.S.C. 7521(a)(1).

In 2001, EPA requested public comment on the petition. 66

Fed. Reg. 7486 (2001). The agency received nearly 50,000

public comments. Pet. App. A63.

In 2003, EPA denied the petition. 68 Fed. Reg. 52922

(2003). In explaining its decision, the agency announced, first,

that the Clean Air Act “does not authorize regulation to

address global climate change,” Pet. App. A67, and that

therefore air pollutants associated with climate change “are

not air pollutants under the [Act's] regulatory provisions. . . .”

Id. at A78. EPA adopted the legal conclusions set forth in a

memorandum written by Robert E. Fabricant, then EPA’s

General Counsel, reversing the legal conclusions reached by

two previous General Counsels. Id. at A68-A69.

In offering this interpretation of the term “air pollutant,”

EPA turned away from the language of the statutory

provisions in question and instead relied on failed legislative

proposals to address climate change; statutory provisions (in

the Clean Air Act and elsewhere) addressing climate change in

a “nonregulatory” fashion; and an asserted tension between

regulation of air pollutants associated with climate change and

the regulatory structure of the Clean Air Act and Energy

Policy and Conservation Act. Pet. App. A69-A75, A79-A80.

Citing the “economic and political significance” of the issue of

climate change, EPA pronounced itself “urged on” in its legal

judgment by this Court’s decision in FDA v. Brown &

Williamson Tobacco Corp .,529 U.S. 120 (2000). Pet. App. A76.

As a separate basis for its decision— discussed in a section

entitled “Different Policy Approach” —EPA stated that it

“disagrees with the regulatory approach urged by

petitioners,” and that it would not be “effective or appropriate

for EPA to establish GHG [greenhouse gas] standards for

motor vehicles at this time.” Pet. App. A82. In place of the

regulatory program created by section 202 of the Clean Air

Act, EPA offered “near-term voluntary actions and incentives”

and “programs aimed at reducing scientific uncertainties and

encouraging technological development.” bid.

EPA preferred a “different policy approach” for several

reasons. First, noting that “[t]he science of climate change is

extraordinarily complex and still evolving,” Pet. App. A83, the

agency trotted through a list of issues that remain

inconclusively resolved. Id. at A83-A85. EPA relied primarily

on selective quotations from a 2001 report by the National

Research Council, id. at A82-A84, disregarding, among many

others, that report's important opening _ sentence:

“Greenhouse gases are accumulating in Earth’s atmosphere as

a result of human activities, causing surface air temperatures

and subsurface ocean temperatures to rise.” J.A. 151.

Second, EPA concluded that regulation under section 202

was not warranted because it would “result in an inefficient,

piecemeal approach to addressing the climate change issue,”

since motor vehicles are one of many sources of air pollutants

associated with climate change. Pet. App. A82.

Third, EPA asserted that “[u]nilateral EPA regulation” on

this matter could “weaken U.S. efforts to persuade key

developing countries to reduce the GHG intensity of their

economies.” Pet. App. A86. Regulation of air pollutants

associated with climate change “raises important foreign

policy issues,” EPA observed, which it is “the President's

prerogative” to address. Ibid.

Finally, EPA expressed uncertainty about the availability

of technologies to address the emissions at issue. Pet. App.

A87.

“In light of [these] considerations,” EPA announced, the

agency “would decline the petitioners’ request to regulate

motor vehicle GHG emissions even if it had authority to

promulgate such regulations.” Pet. App. A86.

II. The Court of Appeals’ Decision

Petitioners sought review of EPA’s decision in the D.C.

Circuit. Petitioners in the court of appeals (and here) include

twelve States, three U.S. cities, an American territory, and

various public health and environmental organizations. Their

interest in this case, detailed in affidavits filed in the court of

apveals, arises from the profound harms that they assert are

being and will be visited upon them as a result of climate

change. The effects of climate change which petitioners have

asserted (and which EPA has not denied) include the

inundation of an appreciable portion of coastal States’

property;! damage to publicly owned coastal facilities and

infrastructure;? additional emergency response costs caused

by more frequent and intense storm surges and floods;3 and

| See Jacqz Decl. 44 10-11; Kirshen Decl. §§ 5-11; Woodward Decl. §

6; Dickson Decl. ¥§ 6-10; Conrad Decl. $4 10, 12. The declarations

cited here and in the next three footnotes were part of the record in

the court of appeals, a copy of which is on file with the Clerk.

2 See Hoogeboom Decl. © 4] 4-7; Morrison Decl. 44 5, 15-16; Conrad

Decl. 44 10-11; Belensz Decl. 9-7-8.

3 See Tommaney Decl. ¢§ 13-14; Roos Decl. 4 15.

shrinking water supplies due to reduced snowpack.‘

Moreover, some of the environmental effects of climate change

(such as exacerbation of ozone pollution) will make it more

difficult for States to meet their existing obligations under the

Clean Air Act. See 66 Fed. Reg. 18245, 18246 (2001) (“[s]tate

governments will be affected by the environmental impacts of

climate change” because of the increased number of ozone

exceedances that will result).5

The appeals court panel split three different ways. Judge

Randolph authored the court's lead opinion and announced its

judgment. Assuming without deciding that the Administrator

had authority to regulate air pollutants associated with climate

change, Judge Randolph voted to uphold the agency’s

decision based on its “’ policy’ considerations.” Pet. App. A13-

Al15. Judge Randolph found that section 202(a)(1)’s reference

to the Administrator’s “judgment” gave the agency broad

enough discretion to make a decision based on “the sort of

policy judgments Congress makes when it decides whether to

enact legislation regulating a particular area.” Id. at A13.

These considerations included but were not limited to the

existence of uncertainty. “It is... not accurate to say... that

4 See Fawcett Decl. 4 6.

5 EPA’s decision also threatens to have ripple effects on California’s

and other States’ sovereign power to enforce State laws. Automobile

manufacturers are challenging a California law regulating the motor

vehicle emissions at issue here, alleging that the EPA ruling in this

case “precludes California from adopting any new motor vehicle

emission standards for carbon dioxide or greenhouse gases.” First

Amended Complaint, § 123, Cent. Valley Chrysler-Jeep, Inc. v.

Witherspoon, No. 1:04-CV-06663-AWI-LJO (E.D. Cal.), available at

http:/ / pacer.psc.uscourts.gov. California is the only state allowed

to set its own motor vehicle emission standards. See 42 U.S.C.

7543(b). Other states may adopt such standards if they are, among

other things, “identical to” California's standards. 42 U.S.C. 7507.

Ten States have done so, and automobile manufacturers have also

sued two of them, Rhode Island and Vermont. For discussion, see

Brief of the State of Arizona, et al., as Amici Curiae in Support of

Petitioners.

the EPA Administrator's refusal to regulate rested entirely on

scientific uncertainty ....” Id. at A14-A15. Judge Randolph

concluded that section 202(a)(1) “does not require the

Administrator to exercise his discretion solely on the basis of

his assessment of scientific evidence.” Id. at A13. According

to Judge Randolph, other “’ policy’ considerations” —concerns

about piecemeal regulation, worries about effects on

international treaty negotiations and technological feasibility,

and a preference for alternative voluntary approaches — were

all factors that the agency was entitled to consider in coming

to a decision. /d. at Al4.

Judge Sentelle dissented in part, while concurring in the

judgment. Because what he called the “phenomenon known

as ‘global warming’” was “harmful to humanity at large,”

Judge Sentelle thought it was “impossible” to establish

standing to adjudicate petitioners’ legal claims; the grievance

was too generalized to support standing. Pet. App. A18. He

nevertheless joined in Judge Randolph's judgment denying

the petitions for review on the merits to ensure that a majority

supported the denial of the petition. Id. at A19-A20.

Judge Tatel dissented. In his dissent, he first described

why petitioners had satisfied the requirements for Article III

standing. Noting that only one petitioner need have standing,

Judge Tatel focused on Massachusetts and found that

petitioners had offered unrebutted expert testimony that there

was a substantial probability that Massachusetts would suffer

“serious loss of and damage to” its coastal property. Pet. App.

A27. He also found that petitioners had offered evidence that

the harms they described were caused by air pollutants

associated with climate change and that the relief they sought

would redress their injuries. Id. at A28-A29.

On the merits, Judge Tatel (the only panel member to

reach the question of EPA’s authority) concluded that EPA

plainly had statutory authority to regulate air pollutants

associated with climate change and that its decision not to

regulate these pollutants rested on policy considerations that

fell outside the range of discretion delegated by Congress. Pet.

App. A21-A58.

By a vote of 2-1, the panel denied rehearing (Pet. App.

A98), and by a vote of 4-3, the D.C. Circuit denied en banc

review (Pet. App. A94-A95).

SUMMARY OF ARGUMENT

The language of the Clean Air Act dictates a ruling in

petitioners’ favor. Perhaps that is why EPA did everything it

could to avoid the statutory text relevant to this case. In place

of careful analysis of the text, structure, and history of the Act,

EPA offered a farraginous list of reasons why it was declining

to do what the statute so plainly tells it to do. Here, however,

there is no strength in numbers; while the agency’s reasons

may be many, they do not add up to a persuasive whole. And,

individually, they are weak indeed.

I. EPA's first legal error was to conclude that physical and

chemical compounds associated with climate change and

emitted into the ambient air by motor vehicles are not “air

pollutants” within the meaning of the Clean Air Act and thus

may not be regulated under section 202(a)(1) of the Act.

A. All of the pollutants at issue here fit easily within the

Act's definition of “air pollutant,” which “includ[es] any

physical, chemical . . . substance or matter which is emitted

into . . . the ambient air.” 42 U.S.C. 7602(g). To conclude

otherwise, EPA engaged in a host of interpretive don'ts: it

ignored statutory language, inverted the usual meaning of

other language, interpreted the same words to mean different

things, and shrugged off Congress’s explicit determination

that an effect on climate is an important component of human

welfare. This Court's decision in FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000), does not support EPA’s

unprincipled departure from the statutory text. In Brown &

Williamson, the Food and Drug Administration (FDA) had

disclaimed authority to regulate tobacco for sixty years, and

Congress had enacted tobacco-specific legislation on the basis

of FDA’s repeated disclaimers. Moreover, this Court found,

regulation of tobacco under the Food, Drug, and Cosmetic Act

would have led to an outright ban on tobacco, a result flatly

inconsistent with Congress’s expressed intentions. None of

these circumstances is present here.

B. In deciding that air pollutants associated with climate

change may not be regulated under the Clean Air Act, EPA

relied on “indicia of congressional intent” such as failed

legislative proposals and various subsequent enactments that

are silent on and fully consistent with the provisions at issue

here. This Court has made plain that it will not effectively

repeal a statutory provision based on indicia such as these.

Moreover, two other Clean Air Act programs to which EPA

points — the program addressing stratospheric ozone depletion

and that establishing ambient air quality standards—

comfortably coexist with regulation of air pollutants

associated with climate change under section 202(a)(1).

Nothing in the program addressing ozone-depleting

substances suggests that EPA may not regulate air pollutants

associated with climate change under section 202(a)(1).

Likewise, to say, as EPA has, that air pollutants associated

with climate change may not be regulated under the mobile

source program because they may not be appropriate for

regulation under the separate National Ambient Air Quality

Standards (NAAQS) program is to utter a non sequitur.

Finally, the Energy Policy and Conservation Act (EPCA) is not

inconsistent with regulation of air pollutants associated with

climate change under section 202(a)(1) of the Clean Air Act.

Nothing in EPCA expressly undoes any category of regulation

under the Clean Air Act. On the contrary, both of these laws

were written with respectful attention to the other.

C. Even if the statutory language were not plain, EPA’s

interpretation deserves no deference. Indeed, EPA has not in

fact offered an interpretation of the language at issue here; it

has merely offered a bottom-line conclusion that air pollutants

associated with climate change may not be regulated under

the Clean Air Act. This conclusion, moreover, conflicts with

other EPA decisions under the Act. An interpretation that is

“good for this day and train only”® is not one that deserves

judicial deference.

Il. EPA’s second legal error was to conclude that it could

decline to regulate air pollutants associated with climate

change under section 202(a)(1) on the basis of factors not

enumerated in that provision.

A. The regulatory mandate of section 202 is triggered by a

conclusion that motor vehicles cause or contribute to air

pollution which “may reasonably be anticipated to endanger

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

is the only factor mentioned in section 202(a)(1). Other

provisions of section 202, which set forth the criteria for the

content of the regulations triggered by a determination of

endangerment, specify additional factors for the agency to

consider at that stage. Much of the Clean Air Act, in fact, takes

the same basic form: regulation is initially triggered by a

finding of endangerment to public health or welfare, and the

content of regulation is shaped by reference to numerous other

factors. EPA was wrong to insert factors beyond

endangerment into the carefully circumscribed framework of

section 202(a)(1).

B. The text of the Clean Air Act makes plain that three of

the policy concerns cited by EPA in declining to regulate air

pollutants associated with climate change are irrelevant to

section 202(a)({1). The fourth, scientific uncertainty, is relevant,

but EPA failed to relate it to the statutory standard of

endangerment.

C. Section 202(a)(1)’s reference to the “judgment” of the

Administrator does two simple things: it specifies who is to

make the determination regarding endangerment, and it

makes clear that the Administrator is expected to exercise his

expertise on the issues of environmental science and public

health and welfare on which the provision turns. From the

statutory text, it is plain that the “judgment” Congress called

upon relates only to the Administrator's determination

whether a given pollutant causes or contributes to pollution

that endangers the public health or welfare. What the word

“judgment” does not do is allow EPA to smuggle into this

provision factors otherwise left out of it. To hold that

allowance for “judgment” on the part of the Administrator —a

feature present throughout the Clean Air Act, as well as in

untold numbers of provisions in the United States Code—

gives the Administrator unfettered discretion to regulate or

not, as he sees fit and without regard to statutory text, would

be to effect a radical transfer of authority from Congress to the

executive branch.

ARGUMENT

I. EPA HAS AUTHORITY TO REGULATE AIR

POLLUTANTS ASSOCIATED WITH CLIMATE

CHANGE UNDER SECTION 202(a)(1) OF THE

CLEAN AIR ACT.

In concluding that the Clean Air Act “does not authorize

regulation to address global climate change,” Pet. App. A67,

EPA first decided what the statute meant and then bent the

statutory language to fit the agency's predetermined meaning.

Rather than beginning with the language of the statute, as this

Court's precedents invariably instruct, see, e.g., Arlington Cent.

Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2459 (2006);

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999), the

agency instead began by describing other alleged “indicia of

congressional intent,” Pet. App. A69, including the “political

significance” of the issue of climate change. Id. at A78. Only

after the agency had persuaded itself—through means other

than examination of the text of the statutory provisions at

issue here—that the statute could not have been meant to

authorize regulation of air pollutants associated with climate

change, did the agency turn to the language of the statute. This

is not the way statutory interpretation is supposed to work.

The proper approach to discerning the Clean Air Act's

meaning reveals that carbon dioxide and other air pollutants

associated with climate change fit exactly within the Act's

definition of “air pollutants.” Nothing in the one decision on

which EPA relied, FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000), gives EPA a free pass to ignore statutory

text. EPA’s attempts to circumvent the straightforward

meaning of the statutory language—through appeals to

subsequent failed legislative proposals and other discredited

“indicia” of congressional intent—turn this Court’s approach

to interpreting statutes inside out.

A. The chemicals at issue here are “air pollutants”

subject to regulation under section 202(a)(1).

1. Inconcluding that air pollutants associated with climate

change are not “air pollutants” within the meaning of the Act,

EPA managed both to ignore and to distort the plain text of

the statute.

Section 302(g) defines the critical term “air pollutant”:

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 the ambient air.

42 U.S.C. 7602(g). Motor vehicles emit the physical and chemical

matter carbon dioxide, methane, nitrous oxide, and

hydrofluorocarbons into the ambient air. No one involved in

these proceedings has ever questioned these incontestable

facts, which place these chemicals squarely within the ambit of

the statutory definition of “air pollutants.”

Closer parsing of the statutory text ory bolsters this

conclusion. The use of the word “any” in section 302(g)—not

once, but twice: “any” air pollution agent, “any” physical or

chemical substance or matter—bespeaks breadth.’ As this

Court has explained, “the word ‘any’ has an expansive

meaning, that is, ‘one or some indiscriminately of whatever

kind.” Dept. of Hous. and Urban Dev. v. Rucker, 535 U.S. 125,

131 (2002) (quoting United States v. Gonzales, 520 U.S. 1, 5

(1997)); see also, e.g., J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred

Int'l, Inc., 534 U.S. 124, 130 (2001) (“In choosing such expansive

terms . . . , modified by the comprehensive ‘any,’ Congress

plainly contemplated that the [statutory provision] would be

given wide scope.”) (quoting Diamond v. Chakrabarty, 447 US.

303, 308 (1980)). |

EPA’s interpretation of the term “air pollutant” is at odds

with section 302(g)’s use of the word “any.” EPA asserted that

“a substance does not meet the CAA [Clean Air Act] definition

of ‘air pollutant’ simply because it is a ‘physical, chemical,

biological, radioactive * * * substance or matter which is

emitted into or otherwise enters the ambient air.’ It must also

be an ‘air pollution agent.” Pet. App. A79 n.3 (emphasis

added). Fo accept EPA’s view would be to rewrite the

statutory language, changing it from “any physical, chemical,

biological, radioactive . . . substance or matter” to the very

different phrase “some physical, chemical, biological,

radioactive . . . substance[s] or matter.” But that is not what

the statute says. :

In addition, EPA’s interpretation inverts the meaning of

the word “including.” Section 302(g) states, “[t]he term ‘air

pollutant’ means any air pollution-agent or combination of

such agents, including any physical, chemical, biological,

radioactive . . . substance or matter.” 42 US.C. 7602(g)

(emphasis added). In suggesting that some “physical,

chemical, biological, radioactive * * * substance[s] or matter”

are not “air pollution agent{s],” Pet. App. A79 n.3, EPA

” Section 202(a)(1) also signals breadth: it applies to “any air

pollutant” emitted from “any class or classes of new motor vehicles

Or new motor vehicle engines” which meet the standard of

endangerment. 42 U.S.C. 7521(a)(1) (emphasis added).

implied that the class of “air pollution agents” is smaller than

the class of “physical, chemical, biological, radioactive . . .

substance or matter which is emitted into or otherwise enters

the ambient air.” However, the use of the word “including”

indicates that “air pollution agent” is, if anything, to be given

a more spacious, not more cramped, meaning than the words

that follow it. “To ‘include’ is to ‘contain’ or ‘comprise as part

of a whole.” Chickasaw Nation v. United States, 534 U.S. 84, 89

(2001) (quoting Webster's Ninth New Collegiate Dictionary

609 (1985)).8 Thus, an “air pollution agent” is the “whole” of

which “any physical, chemical, biological, radioactive . . .

substance or matter” is a “part.”

Petitioners’ reading also does justice to the word “agent.”

Congress chose to include within the category of “air

pollutants” not merely the “substance[s] or matter” that might

comprise air pollution, but also other “agents” of air pollution.

These agents could include phenomena that, unlike

“substance[s] or matter,” have no mass (including, for

example, heat and certain types of ionizing radiation, such as

ultraviolet, gamma, and X-rays). Such phenomena could be

“agents” of air pollution even though they are not

“substance[s] or matter.” Thus, far from having a constrictive

effect on the phrase following the word “including,” the use of

the term “air pollution agent” indicates applications of the Act

to phenomena not embraced by the “including” clause.

® See also S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 126 S.Ct. 1843

(2006) (provision stating that “the term ‘discharge’ when used

without qualification includes a discharge of a pollutant, and a

discharge of pollutants” held to mean that “discharge” was broader

than the terms following “includes”); P.C. Pfeiffer Co., Jnc. v. Ford, 444

US. 69, 77 n. 7 (1979) (in provision defining “employee” to mean

“any person engaged in maritime employment, including any

longshoreman or other person engaged in longshoring operations,”

the word “including” was interpreted “to indicate that ‘longshoring

operations’ are a part of the larger group of activities that make up

‘maritime employment’”).

The text of the Act also makes clear that including air

pollutants associated with climate change under the statutory

rubric of “air pollutants” comports with Congress’s legislative

aims. The basic purpose of the Clean Air Act is to protect

public health and welfare. 42 U.S.C. 7401(b)(1). Adverse

effects on public health and welfare are the key triggers for

regulation under the Act. See, e.g., 7411(b)(1)(A) (stationary

sources), 7521(a)(1) (motor vehicles), 7545(c) (fuels and fuel

additives). Here is the Act's definition of “welfare”:

All language referring to effects on welfare includes, but is

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

manmade 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.

42 U.S.C. 7602(h) (emphasis added). EPA’s view that the

Clean Air Act “does not authorize regulation to address

concerns about global climate change,” Pet. App. A78, is

completely at odds with the concern for effects on climate and

weather, explicit in this provision. It would be strange indeed

for Congress to conclude, so pointedly, that climate and

weather are important components of human welfare, yet to

deprive EPA of authority to do anything about the pollutants

that most affect these features of our environment. EPA’s

notion that “air pollution” excludes airborne matter that

produces effects expressly included in the Act’s key phrase

(“public health or welfare”) is untenable.

Indeed, even absent the express references to “climate”

and “weather” in the definition of the pivotal term “welfare,”

section 302(h) would nevertheless signal congressional

concern with the kinds of harms posed by air pollutants

associated with climate change. Climate change either triggers

or exacerbates every one of the effects listed in section 302(h).

EPA's stingy interpretation unjustifiably shrinks the agency's

capacity to respond to effects that Congress has undeniably

directed it to address.

What is more, EPA is attempting to accomplish this

shrinkage through a statutory phrase—“air pollutant” —that

gives no hint of such a repercussion. Instead, the natural

reading of this term, the one that hides no elephants in

mouseholes, is that it describes the large class of substances

and phenomena that could potentially lead to regulation

under the Act. While the Act defines “air pollutant” broadly,

emissions of air pollutants are actually regulated only when the

agency concludes that they may reasonably be anticipated to

endanger the public health or welfare. See, e.g., 42 U.S.C

7411(b)(1)(A) (mew stationary sources); 7521(a)(1) (new motor

vehicles). Intérpretation of the phrase “air pollutant” in

accordance with the plain language of the statute will thus

cause no untoward regulatory results. EPA’s General Counsel

erred in suggesting that reading section 302(g)’s language as

written would lead to the regulation of “virtually anything

entering the ambient air....” J.A. at 135 n.9.

EPA's interpretation also errs in giving no weight to the

Act's explicit inclusion of carbon dioxide within a list of “air

pollutants.” Section 103(g) directs EPA to conduct a research

program concerning “[iJmprovements in nonregulatory

strategies and technologies for preventing or reducing

multiple air pollutants, including . . . carbon dioxide... .” 42

U.S.C. 7403(g)(1) (emphasis added).

EPA attempted to avoid the import of this plain text by

asserting a dichotomy between “regulatory” and

“nonregulatory” programs under the Act and asserting that

the Act bars only “regulatory” activities with respect to air

pollutants associated with climate change. EPA stated that

“GHGs, as such, are not air pollutants under the CAA’s

regulatory provisions, including sections 108, 109, 111, 112 and

202,” and that “the term ‘air pollution’ as used in the regulatory

provisions cannot be interpreted to encompass global climate

change.” Pet. App. A78 (emphasis added). On this theory,

research on climate change conducted pursuant to section

103(g), 42 U.S.C. 7403(g), comports with EPA’s interpretation

because such activity is not “regulatory.” Pet. App. A71; see

also J.A. 136 (Fabricant memorandum). Yet research under

section 103(g) relates to “air pollution,” which EPA has said

does not include climate change. Pet. App. A78.

Nothing in the language of the Act allows the phrase “air

pollutants” to bear the double meaning EPA seeks to give it.

Section 302(g) does not, in defining “air pollutants,” give any

hint that the reach of this phrase depends on whether a

statutory program is “regulatory” or not. As in Clark v.

Benitez, 543 U.S. 371, 378 (2005), “[t]o give these same words a

different meaning for each category would be to invent a

statute rather than interpret one.”

Moreover, the Act does not even provide any basis for

distinguishing actions that are “regulatory” in EPA’s sense

from ones that are not. EPA suggests that section 821 of the

1990 Amendments, requiring utilities subject to the Clean Air

Act's acid rain control program to monitor and report their

carbon dioxide emissions, is not a regulatory provision.? See

Pet. App. A70 (stating that section 821 does not “authorize[]

the imposition of mandatory requirements”). It is hard to

understand what EPA means by “regulatory” or “mandatory”

requirements if government-dictated monitoring and

disclosure do not come within their terms. Certainly nothing

in the Clean Air Act creates or clarifies this division, further

confirming that the Act does not permit different definitions

for the term “air pollutants” depending on the nature of the

statutory program at issue.

In sum, a straightforward reading of the language of the

Clean Air Act shows that carbon dioxide and other’ air

pollutants associated with climate change are “air pollutants”

potentially subject to regulation under section 202(a)(1). When

Congress has spoken as plainly as it has here, an

administrative agency is bound to obey that legislative

——

— a

* Section 821 is uncodified; it appears as a note to section 412 of the

Clean Air Act, 42 U.S.C. 7651k.

command. See, e.g., Chevron U.S.A. Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 842 (1984). .

2. EPA has tried to avoid the import of the statutory text

by relying on a single case, FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000). EPA read Brown & Williamson to

stand for the proposition that “in extraordinary cases” facially

broad grants of authority must undergo more rigorous

scrutiny to decide whether Congress really meant what it said.

Pet. App. A76. EPA asserted that just as this Court found

Congress did not intend the FDA to regulate tobacco as a

“drug” under the Food, Drug and Cosmetic Act (FDCA), so

Congress did not intend EPA to regulate greenhouse gases as

“air pollutants” under the Clean Air Act. See id. at A76-A78.

EPA suggested that this case is even more “extraordinary”

than Brown & Williamson, asserting that regulation of air

pollutants associated with climate change “would have far

greater economic and political implications than FDA’s

attempt to regulate tobacco.” Id. at A76. But this case is

worlds away from Brown & Williamson.

First, Brown & Williamson begins with the reminder that

“although agencies are generally entitled to deference in the

interpretation of statutes that they administer, a reviewing

‘court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.’” 529 US. at

125-126 (quoting Chevron, 467 U.S. at 842-843). The intent of

Congress in section 202(a)(1) of the Clean Air Act is, as we

have demonstrated, unambiguous, and nothing in Brown &

Williamson justifies EPA’s departure from that plain intent.

Second, in Brown & Williamson, the Court found it

determinative that for more than sixty years the FDA had >

asserted that it had no authority to regulate tobacco under the

FDCA, and that Congress had repeatedly enacted tobacco-

specific legislation that ratified and was explicitly based on the

FDA's longstanding interpretation. 529 U.S. at 154-157. Here,

in contrast, before the decision at issue in this case, EPA had

never suggested that it lacked authority to regulate air

pollutants associated with climate change, and Congress has

enacted no legislation premised on the agency’s disclaimer of

jurisdiction. In fact, prior to its decision here, EPA had taken

the opposite position. In response to congressional inquiries,

two EPA general counsels stated that the Clean Air Act does

provide authority to regulate carbon dioxide. See J.A. 46-118.

In contrast to the tobacco-specific legislation cited in Brown &

Williamson, the climate-specific legislation cited by EPA in

support of its decision, see Pet. App. A69-A71, A74-A75, was

not enacted in response to any denial of authority by EPA. In

addition, as EPA itself hastened to point out, the climate-

specific legislation it cited does not mandate emission

reductions. Thus, this legislation does not, as in Brown &

Williamson, create a regulatory regime that might compete

with, or be in tension with, an agency-administered regulatory

program.

Third, Brown & Williamson stressed that if the FDCA

applied to tobacco, it would allow only one result: a total

product ban. 529 U.S. at 137. The Court noted that an outright

ban would be inconsistent with the half-dozen other tobacco-

specific enactments that were all premised on tobacco’s

remaining legally for sale. Id. at 143-144. Because Congress

had enacted legislation that was completely at odds with

subjecting tobacco to FDCA jurisdiction, the Court declined to

conclude that cigarettes were “drugs” or “devices” under that

statute. It was in this “extraordinary” context that the Court

stated that “we are confident that Congress could not have

intended to delegate a decision of such economic and political

significance to an agency in so cryptic a fashion.” Id. at 159,

160. In contrast, regulating air pollutants associated with

climate change under section 202 would assuredly not lead to

a ban on motor vehicles or substantial economic dislocation,

but would result instead in EPA’s setting economically and

technologically feasible emission standards for them—

something the agency has done for decades for other

pollutants emitted by motor vehicles.

In short, this case preserits none of the circumstances

described by Brown & Williamson as “extraordinary.” In the

end, applying the principles of Brown & Williamson to this case

yields the same overall conclusion the Court reached there:

that Congress “has directly spoken to the issue,” and the

agency is not free to rewrite the statute simply because it now

disagrees with the policy that Congress enacted.

B. EPA erred in finding, in failed bills and separate

provisions of the Clean Air Act and other statutes, a

congressional intent to forbid EPA to regulate air

pollutants associated with climate change under

section 202(a)(1).

EPA was compelled to adopt its strained reading of the

text of the Clean Air Act because it concluded, wrongly, that

Congress had either deprived it of jurisdiction in more recent

enactments, or has otherwise made clear to the agency that

Congress, not EPA, should deal with climate change. None of

the arguments the agency makes in support of this claim is

sound.

1. Once Brown & Williamson is stripped aw: y as authority

for EPA's interpretation of section 202(a)(1), it becomes clear

that the Court cannot reach EPA’s desired result without

effecting a repeal by implication, either through failed

legislative proposals or subsequently enacted provisions of the

Clean Air Act and other statutes. Here, too, EPA’s reasoning

reads like a list of anti-rules for statutory interpretation.

First comes EPA’s invocation of failed legislative

proposals. In its decision, EPA noted that when Congress

amended the Clean Air Act in 1990, it did not enact the

specific car 1 dioxide emission limits then proposed. Pet.

10 Section 202 includes protections designed to prevent severe

economic impacts. See, ¢.g.,42 U.S.C. 7521(a)(2).

App. A70-A71. EPA also cited several other legislative

proposals that were not enacted. Id. at A70, A74-A75. EPA’s

basic argument is that because Congress was aware of the

issue of climate change when it amended the Clean Air Act in

1990, its failure to enact proposals to regulate carbon dioxide

signaled that it was “awaiting further information before

deciding itself whether regulation to address global climate

change is warranted and, if so, what form it should take.” Id.

at A75.

__ The statutory language showing that EPA has authority to

regulate carbon dioxide and other air pollutants associated

with climate change was in place before the 1990

Amendments, and indeed, before any of the failed legislative

proposals EPA cited were developed. By the plain terms of-

the statute, EPA already possessed the authority to regulate

greenhouse gases at the time of these proposals. EPA appears

to think that subsequent unenacted legislation can amend prior

enacted legislation. This Court has repeatedly rejected such an

approach: “It is the intent of the Congress that enacted [the

provision at issue], unmistakable in this case, that controls.”

Teamsters v. United States, 431 U.S. 324, 354 n.39 (1977). “Failed

legislative proposals are ‘a particularly dangerous ground on

which to rest an interpretation of a prior statute.” " Solid

Waste Agency of N. Cook County v. US Army Corps of Eng’rs, 531

U.S. 159, 169-170 (2001); see also Brown & Williamson, 529 US.

at 155 (disclaiming reliance on failed legislative proposals).

“[C]ongressional inaction lacks persuasive significance

because several equally tenable inferences may be drawn from

such inaction, including the inference that the existing

legislation already incorporated the offered change.” United

States v. Craft, 535 U.S. 274, 287 (2002) (quoting Cent. Bank of

‘| EPA gains no more interpretive leverage from the failed legislative

proposals it cites than petitioners could gain by citing the failed

proposal to strip EPA of authority to regulate emissions of carbon

dioxide (which cited EPA's position, at the time, that carbon dioxide

was a “pollutant”). H.R. 2221, 106th Cong., §§ 3(b), 2(a)(2) (1999).

Denver v. First Interstate Bank of Denver, 511 U.S. 164, 187

(1994)).

EPA is also laboring under the misimpression that

subsequently enacted legislation can silently undo previously

granted authority, and can do so even when the two pieces of

legislation can happily coexist. EPA cited provisions from the

1990 Amendments to the Clean Air Act (amendments enacted,

as discussed, years after the language at issue here was settled

upon) and from other legislation in asserting that Congress

meant for EPA to take a strictly “nonregulatory” approach to

climate change. Pet. App. A70-71, A74-A75 (citing sections

103, 602, and uncodified section 821 of the Act). Nothing in

these provisions expressly or impliedly removes the authority

granted by section 202(a)(1).!2

In fact, as discussed above, one of the “nonregulatory”

provisions EPA relied upon, section 103(g), reinforces the

interpretation of the word “air pollutant” dictated by the plain

text of section 302(g). By expressly including carbon dioxide

in a list of enumerated “air pollutants,” section 103(g)

reaffirms that this climate-changing gas is an “air pollutant”

under the Act.

Apart from these provisions in the Clean Air Act, Congress

has. since 1977 also enacted several statutes pertaining to

global climate change.'3 Because such legislation principally

2 Section 103(g) says only that “[nJothing in this subsection shall be

construed to authorize the imposition on any person of air pollution

control requirements.” 42 U.S.C. 7403(g) (emphasis added).

Likewise, section 602(e) directs EPA to “publish the global warming

potential” of ozone-depleting substances designated for phase-out

under the Act, and then states that “[t]he preceding sentence shall not

be construed to be the basis of any additional regulation under this

chapter.” 42 U.S.C. 7671la(e) (emphasis added). Neither of these

provisions utters a peep about section 202(a)(1).

13 See National Climate Program Act of 1978, Pub. L. No. 95-367, 92

Stat. 601 (establishing a program to assist the nation in

understanding and responding to climate change); Global Climate

Protection Act of 1987, Pub. L. No. 100-204, Title XI, 101 Stat. 1331

called for further research and other “nonregulatory”

measures, EPA concluded that these enactments demonstrate

that Congress meant to withhold from EPA regulatory

authority to address climate change. Pet. App. A74-A75.

Once again, however, EPA did not—and, given the content of

these statutes, could not—claim that these enactments erased

its existing authority to regulate “air pollutants.”

In trying to snuff meaning out of 1970s legislation based

on legislation of the 1980s and 1990s, EPA struggles uphill

against the “cardinal rule . . . that repeals by implication are

not favored.” Cook County, Ill. v. United States ex rel. Chandler,

538 U.S. 119, 132 (2003) (quoting Posadas v. Nat'l City Bank, 296

U.S. 497, 503 (1936)). This is a venerable rule: this Court long

ago declared that “[wJhere the powers or directions under

several acts are such as may well subsist together, an

implication of repeal cannot be allowed.” In re Henderson's

Tobacco, 78 U.S. 652, 657 (1870). There being no inconsistency

between the legislation cited by EPA and the clear application

of section 202(a)(1) to air pollutants associated with climate

change, it was error for EPA to find an implicit repeal of the

latter in the former.

(requiring the President to develop a national policy on climate

change); Global Change Research Act of 1990, Pub. L. No. 101-606,

104 Stat. 3096 (authorizing a comprehensive research effort); Food,

Agriculture, Conservation and Trade Act of 1990, Pub. L. No. 101-

624, Title XXIV, 104 Stat. 3359 (establishing a program to coordinate

climate change research and policy within the Department of

Agric» ure); Energy Policy Act of 1992, Pub. L. No. 102-486, Title

XVI, 106 Stat. 2776 (calling for an assessment of the feasibility of

reducing greenhouse gases and creating a national inventory and

voluntary reporting of greenhouse gas emissions).

'* EPA's citation to congressional actions pertaining to climate treaty

negotiations in the 1990s, Pet. App. A75, draws us even farther away

from the meaning of the Clean Air Act provisions enacted in the

1970s. These actions did not mention, let alone limit, existing

domestic regulatory authority. See 105 S. Res. 98, Rep. No. 105-54;

Pub. L. No. 105-276, 112 Stat. 2461 (1998).

EPA's aim in citing the above “indicia of congressional

intent” —failed proposals, and legislation enacted after the

statutory text at issue here was in place—was to show that

Congress intended to “learn more about the global climate

change issue before specifically authorizing regulation to

address it... .” Pet. App. A75. Apart from the problems

already discussed, there are additional flaws in EPA’‘s

analysis.

First, EPA has ignored the fact that numerous provisions

of the Clean Air Act have explicitly required EP. or other

entities to “learn more about” an environmental issue and to

report back to Congress with recommendations for legislation.

See, e.g., 42 U.S.C. 7412(f)(1)-(2) (requiring report to Congress

on program regulating hazardous air pollutants, and

contemplating further agency action only in the event

Congress does not act on agency recommendations); 7412(r)(6)

(directing Chemical Safety Board to report to Congress on

accidental hazardous releases and to make recommendations).

In addition, before the Motor Vehicle Air Pollution Control

Act of 1965 created the first federal regulatory program for

motor vehicle emissions, Congress had twice directed first the

Surgeon General, and then the Secretary of Health and Human

Welfare, to conduct research on the consequences of air

pollution from motor vehicles and to report back to it with

recommendations for legislation on the subject. Pub. L. No.

86-493, 74 Stat. 162 (1960); Pub. L. No. 88-206, 77 Stat. 392

(1963). If, in section 202(a)(1) of the Act, Congress had really

wanted to create the kind of nonregulatory, report-and-wait

program EPA envisions, it could easily have replicated the

language of these other provisions, and tailored it to the issue

of climate change. It did not do this.

Second, EPA’s implicit suggestion that ongoing

investigation cannot coexist with regulation is a frontal assault

on a core tenet of the Act. Section 202 and other key sections

of the Act call for EPA to take regulatory action against

dangers to public health and welfare even when some

scientific uncertainty remains. In light of this, simultaneous

regulation and further study is not incompatible; rather, it is

the norm that Congress established under the Act. Research

and regulation walk hand in hand under the Act, and thus

calls by Congress for more research on a topic have naturally

been paired with commands for regulation. See, e.g., 42 U.S.C.

7409(a), (d) (providing for establishment of NAAQS and

continuing research on the scientific basis of the standards); 42

US.C. 7412(d), (f)(1) (providing for technology-based.

regulation of hazardous air pollutants and continuing research

into adequacy of this regulation in protecting public health);

42 USC. 7521(a), 7548 (calling for regulation of air pollution

from motor vehicles and study of effects on public health and

welfare of particulate matter emissions from motor vehicles).

A third problem with EPA’s mode of analysis is the idea

that Congress must “specifically authoriz[e]” (Pet. App. A75‘

(emphasis added)) a regulatory program before EPA may act.

This notion is at odds with the system created by the Clean Air

Act. What EPA seems to mean is that Congress must say the

words “carbon dioxide” or “greenhouse gases” in specific

regulatory provisions of the Act before a regulatory program

addressing these matters may be developed. This is not the

way the statute works.'5 On the contrary, the Act does not

attempt, in advance, to identify all of the possible targets of

regulatory activity. Even where Congress has painstakingly

listed pollutants to be regulated, it has also recognized that

further research may identify additional harmful pollutants

"© Nor is it the way most statutes work. See, e.g., Pub. Citizen v. U.S.

Dept. of Justice, 491 U.S. 440, 475 (1989) (Kennedy, J., dissenting)

(Congress “usually does not legislate by specifying examples, but by

identifying broad and general principles that must be applied to

particular factual instances”). In fact, this Court has consistently

held that an agency may regulate a new subject matter in the absence

of proof of specific congressional attention directed at the particular

problem. See, e.g., Diamond v. Chakrabarty, 447 US. 303, 314-315

(1980) (rejecting argument that because genetic technology was

unforeseen when broad patent statute was enacted, micro-organisms

could not be patented until Congress expressly authorized it).

that should be brought into the regulatory fold. See, e.g., 42

U.S.C. 7412(b)(1) (listing nearly 200 hazardous air pollutants to

be regulated), 7412(b)(2) and (3)(B) (making way for additions

to the list). In many other cases, Congress has identified the

targets of regulation in general terms, leaving the details to be

filled in by EPA. See, e.g., 42 US.C. 7408(a) (criteria air

pollutants); 7411(b)(1)(A) (stationary sources subject to New

Source Performance Standards); 7545(c) (fuels and fuel

additives).

One famous example of this framework in operation is

EPA’s reduction of the lead content of gasoline. The 1970

version of section 211 of the Clean Air Act authorized the

Administrator to “control or prohibit the manufacture,

introduction into commerce, offering for sale, or sale of any

fuel or fuel additive for use in a motor vehicle or motor vehicle

engine (A) if any emission products of such fuel or fuel

additive will endanger the public health or welfare. . . .”

Pub.L. No. 91-604, 84 Stat. 1676, § 211(c)(1). This provision did

not mention the fuel additive lead. Despite the Act's lack of an

explicit reference to leaded gasoline, EPA in 1973 ordered a

dramatic reduction in the lead content of gasoline. 38 Fed.

Reg. 33734 (1973). The agency later ordered still steeper

reductions. 50 Fed. Reg. 9386 (1985). The decisions to phase

down lead in gasoline were based on broadly worded

statutory language that did not specifically grant EPA

authority to regulate lead in gasoline. The decisions were also

economically and politically momentous. Based on the

interpretive method EPA offers for this case, the lead phase-

down would have been doomed from the get-go.

2. In disclaiming authority to regulate air pollutants

associated with climate change, EPA also pointed to two

important programs under the Clean Air Act which the

agency said would fit so uneasily with regulation of these -

pollutants that Congress could not have intended these

pollutants to be regulated at all. These claims are meritless.

EPA asserted, first, that Congress’s enactment in 1990 of

Title VI of the Act (42 U.S.C. 7671-7671q), which regulates

chemicals that threaten the stratospheric ozone layer,

“cautions against construing [the Act's] provisions to

authorize regulation of emissions that may contribute to

global climate change.” Pet. App. A71. EPA stated that the

enactment of Title VI “demonstrate[s] that Congress has

understood the need for specially tailored solutions to global

atmospheric issues.” Ibid. Once again, EPA is seeking to use

provisions enacted in 1990 to discern—and to limit—the

meaning of provisions enacted in the 1970s. Moreover, EPA

has used the very statutory program under discussion here ~

relating to stratospheric ozone depletion—as a basis for

regulating air pollutants associated with climate change. See

pages 33-34, infra. 7

In any event, EPA cannot seriously maintain that

“coordination with the international community” is a -

prerequisite for regulating pollutants that “are emitted around

the world and are very long-lived,” the consequences of which

“occur on a global scale.” Id. at A71-A72. Congress directed

EPA to regulate ozone-depleting substances themselves

without awaiting such coordination.’ In addition, EPA has

recently issued a rule regulating mercury emissions. 70 Fed.

Reg. 28606 (2005). Mercury is (to use EPA’s words in

describing greenhouse gases and ozone-depleting substances)

a pollutant “emitted around the world” that is “very long-

lived,” and exerts effects “on a global scale.” See 70 Fed. Reg.

15994, 16011, 16012 (2005) (mercury is “persistent,” and there

exists a “global [mercury] cycle”).!7 Even so, the agency has

not made domestic regulation of mercury await “coordination

with the international community.”

EPA’s claim based on the NAAQS program is equally

unsound. EPA concluded that the NAAQS system, created by

sections 108-110 of the Act, 42 USC. 7408-7410, is

1¢ Pub. L. No. 95-95, 91 Stat. 685, § 126 (1977); 42 U.S.C. 7426.

” EPA has estimated that roughly 40 percent of the mercury

deposited in the United States comes from sources in other countries.

65 Fed. Reg. 79825, 79827 (2000).

“fundamentally ill-suited to addressing [greenhouse] gases in

relation to global climate change,” and on this basis asserted

that Congress did not intend EPA to regulate these pollutants

under any part of the Act, including section 202. Pet. App.

A73. EPA’s move is a classic debater’s trick: when you're

losing the argument, change the subject.

The NAAQS program is an entirely separate program from

the mobile source program at issue in this case. Nothing in the

Act suggests that regulation under the mobile source program

must stand or fall with regulation under the NAAQS program.

The federal program for controlling air pollution from motor

vehicles was first created in 1965, five years before the 1970

Act created the NAAQS program. The programs were not

merged, and they retain significant independent status and

effects. Organizationally, mobile sources are regulated under

Title II of the Act, which is separate from Title I, concerning

the NAAQS.'® Moreover, while the federal government sets

the NAAQS, the States are primarily responsible for

implementing them, see, e.g., Whitman v. American Trucking

Ass'ns, 531 U.S. 457, 470 (2001), whereas the federal

government sets the emission standards for mobile sources,

and states have a more circumscribed role (with the exception

that California may set its own standards, subject to certain

constraints). 42 U.S.C. 7543(a), (b). Furthermore, the two

programs cover different pollutants. For example, benzene

and formaldehyde must be regulated under the mobile source

program, 42 U.S.C. 7521(/)(2), but they are not regulated under

the NAAQS program.

The NAAQS program and the mobile source program are

also initiated by different regulatory triggers. Regulation of

mobile sources is triggered under section 202(a)(1) by a

determination that air pollution from motor vehicles “may

reasonably be anticipated to endanger public health or

18 Cf. Whitman v. American Trucking Ass‘ns, 531 U.S. 457, 468 (2001)

(“[t}he NAAQS . . . are the engine that drives nearly all of Title | of

the CAA ... .”) (emphasis added).

welfare.” 42 U.S.C. 7521(a)(1). Although an endangerment

decision of this kind is also a prerequisite to regulation under

the NAAQS program, see 42 U.S.C. 7408(a)(1)(A), the NAAQS

provision includes additional triggering language as well. See,

e.g., 42 U.S.C. 7408(a)(1) (requiring the Administrator to list

new pollutants “for which he plans to issue air quality.

criteria”). Whether this provision would allow EPA to decline

to set NAAQS for those substances it considers “ill-suited” to

the program is not, however, before this Court.9

Whatever question exists about the applicability of the

NAAQS program to the air pollutants at issue here cannot

excuse the failure to adopt emission standards under section

202. Section 202 does provide a perfectly feasible mechanism

for regulating emission of these pollutants from motor

vehicles: the establishment of the same sort of limits on these

pollutants that EPA has already i:.tposed on pollutants such as

carbon monoxide and hydrocarbons.

3. EPA also asserted that Congress has not authorized the

agency to set standards for carbon dioxide emissions from

motor vehicles to the extent that such standards would

regulate fuel economy because such regulation would be

inconsistent with the Energy Policy and Conservation Act

(EPCA), 49 U.S.C. 32901-32919. Pet. App. A79-A80. EPCA,

'? Nor has EPA demonstrated that it would be unworkable to apply

the NAAQS to emissions of the chemicals at issue here. In other

contexts, EPA has worked to craft implementation programs for

long-range, troublesome pollutants such as ozone, assigning each

state its fair share of reductions. See, e.g., West Virginia v. EPA, 362

F.3d 861 (D.C. Cir. 2004) (upholding regional program to address

interstate ozone problems). Even if States were unable to devise

implementation plans to achieve full compliance with NAAQS for

the chemicals at issue here, should such NAAQS ever be set, this

would not be an absurd result or one that ran counter to the purpose

of the Act; it would at most be an incomplete result. In fact, Congress

expressly recognized that there may be situations where a NAAQS

cannot be attained due to emissions from foreign sources. 42 U.S.C.

7509a. .

administered by the National Highway Traffic Safety

Administration (NHTSA), sets minimum corporate average

fuel economy standards (or “CAFE” standards) for

automobiles.” See 49 U.S.C. 32901-32919. EPA claimed that

the only practical way to reduce carbon dioxide emissions

from vehicles is to improve fuel economy, and that the care

Congress exercised in creating a system for regulating fuel

economy in EPCA demonstrated that EPCA was meant to be

the only statutory vehicle for doing so. Pet. App. A79-A80.

Here, EPA fundamentally misread the Clean Air Act and

EPCA, and again violated sound principles of statutory

interpretation.

The relevant provisions of EPCA and the Clean Air Act

have fundamentally different purposes. EPCA’s provisions

were passed to promote energy efficiency, 42 U.S.C. 6201(5);

the Clean Air Act provisions were passed to protect public

health and welfare, 42 U.S.C. 7521(a)(1). -The fact that in EPCA

Congress created a system to strike a particular balance

between energy conservation and other considerations has no

bearing on the balance that Congress intended the EPA

Administrator to strike if, in his judgment, he determined that

carbon dioxide emissions from vehicles were endangering

public health and welfare.

EPA's argument is premised on the assumption that the

two provisions are inconsistent. They are not. While the two

statutes may overlap, they are not irreconcilable, and

manufacturers will be able to continue to comply with both

statutes, as they have for decades. Regulatory overlap is

common. FTC v. Ken Roberts, Co., 276 F.3d 583, 593 (D.C. Cir.

2001) (“we live in ‘an age of overlapping and concurring

regulatory jurisdiction’) (quoting Thompson Med. Co. v. FTC,

20 The Secretary of Transportation has delegated his responsibilities

under EPCA to NHTSA. 49 C.F.R. 1.50(f).

21 EPCA’s fuel economy standards do not apply to other vehicles,

such as heavy-duty trucks and motorcycles, 49 U.S.C. 32901(a)(3)(B),

32902(a), (b), and EPA did not argue that EPCA affects the agency's

authority to regulate methane, nitrous oxide, or hydrofluorocarbons.

791 F.2d 189, 192 (D.C. Cir. 1986)). In cases of alleged conflict

between two statutes, this Court has consistently held that

both must be given effect wherever possible: “The courts are

not at liberty to pick and choose among congressional

enactments, and when two statutes are capable of co-existence,

it is the duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard each as

effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974); see also,

e.g., J.E.M. AG Supply, Inc. v. Pioneer, 534 U.S. 124, 143-44

(2001).

To be sure, many technologies employed to reduce carbon

dioxide emissions may well result in consuming less fuel per

mile of travel. These overlapping impacts are not inconsistent

because the standards set pursuant to both Acts are minimum

standards. See 42 U.S.C. 7521(a)(1); 49 U.S.C. 32901(a)(6),

32902. Because both statutes set minimum standards, an

automobile manufacturer's compliance with one statute does

not interfere with its compliance with the other.

Because of these potentially overlapping effects, the Clean

Air Act and EPCA do refer to each other, but none of these

cross-references limits EPA’s authority; indeed, the two

statutes reinforce each other. EPCA provides that when

setting new fuel efficiency standards, NHTSA must take into

account “the effect of other motor vehicle standards of the

Government on fuel economy,” 49 U.S.C. 32902(f), which

include emissions standards under the Clean Air Act.

Similarly, the Clean Air Act allows automobile manufacturers

a limited waiver of certain emission standards for oxides of

nitrogen if it would, among other things, enable greater fuel

economy. See 42 US.C. 7521(b)(3)(C).2 Far from being

irreconcilable, therefore, these two statutes each recognize the

goals and authority of the other. Congress expressly

acknowledged that EPA is authorized under the Clean Air Act

to set motor vehicle emission standards that could affect fuel

2 Congress inadvertently included two subsections denominated

“(b)(3)” in section 202. This provision is in the second of those.

economy, both positively and negatively. Nothing in EPCA

limits the circumstances under which EPA may set motor

vehicle emission standards for air pollutants that cause or

contribute to endangerment of the public health or welfare,

just as nothing in the Clean Air Act undoes NHTSA’s

authority to address fuel efficiency.

C. EPA’s interpretation deserves no deference.

Deference to EPA’s interpretation is appropriate only if the

statutory text is ambiguous and the interpretation is

reasonable. Chevron, 467 U.S. at 842-844. As explained, the

text is unambiguous. Even if it were not, however, EPA’s

interpretation deserves no deference because it is arbitrary and

capricious. Id. at 844.

Making up one’s mind first and then looking for reasons to

support one’s decision is the very soul of arbitrariness. Here,

EPA backed into its conclusion that carbon dioxide, methane,

nitrous oxide, and hydrofluorocarbons are not “air pollution

agents” within the meaning of the Act by first reaching its

substantive bottom line and then forcing that conclusion into

the statutory text:

. . . We thus conclude that the CAA does not authoriz

regulation to address concerns about global climate

change.

It follows from this conclusion, that GHGs, as such, are

not air pollutants under the CAA’s regulatory provisions,

including sections 108, 109, 111, 112 and 202.... Because

EPA lacks CAA regulatory authority to address global climate

change, the term ‘air pollution’ as used in the regulatory

% This is also acknowledged in legislative history. For example, the

House Report on the 1977 Clean Air Act Amendments relied on a

National Academy of Sciences report that noted approvingly that

some emission standards could assist in improving fuel economy

and that “engine technologies which simultaneously reduce

emissions and fuel consumption can and should be pursued.” H.R.

Rep. No. 95-294, at 247.

provisions cannot be interpreted to encompass global climate

change. Thus, CO2 and other GHGs are not ‘agents’ of air

pollution and do not satisfy the CAA section 302(g)

definition of ‘air pollutant’ for purposes of those

provisions.

Pet. App. A78 (emphasis added). If this is the way statutory

interpretation works, EPA could also have declared that

automobiles emitting carbon dioxide and other air pollutants

associated with climate change are not “motor vehicles”

within the meaning of the Act when they are emitting those

chemicals. Once interpretation is unmoored from statutory

language, as EPA has done, one can, like Humpty Dumpty,

use words to mean whatever the user chooses them to mean.

EPA’s decisionmaking regarding air pollutants associated

with climate change is also capricious. EPA does not

consistently apply the definition of “air pollutants” and “air

pollution” it offers here. Indeed, EPA has regulated—as “air

pollutants” — most of the chemicals at issue here. For example,

the agency is requiring the monitoring of carbon dioxide

emissions from nonroad equipment pursuant to section 103(a),

42 U.S.C. 7403(a), which authorizes research into “air

pollution.” 69 Fed. Reg. 12151 (2004).

In addition, EPA considers the global warming potential of

proposed substitutes for ozone-depleting substances in

evaluating those substitutes under provisions of the Clean Air

Act addressing stratospheric ozone depletion. 59 Fed. Reg.

13044, 13049 (1994). EPA has ruled that the use of two

hydrofluorocarbons* (HFC-134a and HFC-152a) in self-

chilling cans is an unacceptable substitute for ozone-depleting

substances, based entirely on these chemicals’ global warming

potential. 64 Fed. Reg. 10374, 10375 (1999); see also, e.g., 64 Fed.

Reg. 22982, 22984 (1999) (listing another substitute as

unacceptable based in part on global warming potential).

Section 618 of the Act specifically provides that requirements

*4 Hydrofluorocarbons are among the chemicals petitioners asked

EPA to regulate.

concerning stratospheric ozone depletion are “requirements

for the control and abatement of air pollution” within the

meaning of sections 116 and 118 of the Act. 42 U.S.C. 7671q

(emphasis added). EPA's assertion that “the term ‘air

pollution’ as used in the regulatory provisions cannot be

interpreted to encompass global climate change,” Pet. App.

A78, cannot be squared with its regulatory actions with

respect to substitutes for ozone-depleting substances.

In addition, ten years ago, EPA added municipal solid

waste landfills to the list of sources to be regulated under the

Clean Air Act based on the Administrator's determination that

these landfills met section 111’s standard of endangerment. 61

Fed. Reg. 9905, 9905 (1996) (applying section 7411(b)(1)(A)).

EPA included methane within “the emissions of concern”

emanating from landfills, explaining: “Methane emissions

contribute to global climate change and can result in fires or

explosions when they accumulate in structures on or off the

landfill site.” Id. at 9905 (emphasis added). Yet methane is

one of the chemicals EPA has now said is not an “air

pollutant” under the Act.

Thus, EPA regulates air pollutants associated with climate

change as “air pollutants” under the Clean Air Act. It

sometimes even does so because they are implicated in climate

change. The agency was incorrect, therefore, when it stated

that “GHGs are not ‘agents’ of air pollution and do not satisfy

the CAA: section 302(g) definition of ‘air pollutant’ for

purposes of [the Act’s regulatory] provisions.” Pet. App. A78.

What EPA should have said was that it will let us know when

these chemicals are “air pollutants,” and when they are not,

based not upon the statutory text but upon the agency’s own

See also 63 Fed. Reg. 6426, 6454 (1998) (“The primary source of air

pollution from landfills is due to the microbial breakdown of organic

wastes from within the landfill. Landfills are known to be major

sources of greenhouse gas emissions such as methane and carbon

dioxide. These emissions are now regulated under the Clean Air Act

as a result of the landfill New Source Performance Standards and

Emissions Guidelines, promulgated by EPA on March 12, 1996.”).

unpredictable amendments to the statutory text. This is not

statutory adherence; it is statutory adhocism.

Even if the statutory language were ambiguous, which it is

not, the ad-libbed interpretation EPA has offered in this case

deserves no deference from this Court.

Il. | EPA MAY NOT DECLINE TO ISSUE EMISSION

STANDARDS FOR MOTOR VEHICLES BASED ON

POLICY CONSIDERATIONS NOT ENUMERATED

IN SECTION 202(a)(1) OF THE CLEAN AIR ACT.

EPA’s second legal error was to conclude that it could

decline under section 202(a)(1) to regulate air pollutants

associated with climate change on the basis of factors not

enumerated in that provision. Even when an agency is

declining to regulate, it may not depart from the unambiguous

language of the statute in making its decision. See, e.g., General

Motors Corp. v. NHTSA, 898 F.2d 165, 169-170 (D.C. Cir. 1990)

(judicial review of denial of rulemaking petition is “guided by

Chevron analysis”).

A. The only relevant factor under section 202(a)(1) is

whether air pollution from motor vehicles “may

reasonably be anticipated to endanger public health

or welfare.”

The basic aim of the Clean Air Act is “to protect and

enhance the quality of the Nation’s air resources so as to

promote the public health and welfare and the productive

capacity of its population.” 42 U.S.C. 7401(b). Thus, the

trigger for much of the regulatory action that occurs under the

Act is the endangerment of public health or welfare. For

example, regulation of stationary sources such as factories and

power plants (42 U.S.C. 7411(b)(1)(A)) and fuels and fuel

additives (42 U.S.C. 7545(c)(1)) is triggered by a conclusion

that air pollution from these sources “may reasonably be

anticipated to endanger public health or welfare.” Under the

Act's regulatory programs, myriad other factors (such as

economic and technological feasibility) come into play in

implementation, see, e.g., 42 U.S.C. 7411(a)(1), but the initial

stimulus for regulatory action is health- and welfare-based.

Section 202 of the Clean Air Act has the same structure.

Section 202(a)(1) creates the “trigger” for regulatory action on

pollution from motor vehicles. Section 202(a)(1) directs the

EPA Administrator's attention to the question whether, “in his

judgment,” new motor vehicles or new motor vehicle engines

“cause, or contribute to, air pollution which may reasonably

be anticipated to endanger public health or welfare.” 42

U.S.C. 7521(a)(1). The statute states that the Administrator

“shall” regulate air pollutants satisfying this criterion.

The other step in regulating air pollution from motor

vehicles involves deciding exactly what the regulatory

standard for the pollutant(s) in question should be, and when

the standard should become effective. The bulk of section 202

is concerned with these kinds of questions. At that stage of

regulatory decisionmaking, a range of factors beyond

“endangerment” are relevant, including the time needed “to

permit the development and application of the requisite

technology,” taking compliance costs into account, 42 U.S.C.

7521(a)(2), and the existence of “an unreasonable risk to public

health, welfare, or safety” due to the “operation or function”

of an emission control “device, system, or element of design,”

42 U.S.C. 7521(a)(4)(A).

If any doubt remained as to whether Congress's singular

focus on endangerment in section 202(a)(1) was intentional,

perusal of other provisions in the Clean Air Act confirms that

Congress carefully specified which factors are relevant, and

which are not, to various agency decisions under the Act.?6 In

26 See, e.g., 42 U.S.C. 7545(c)(2)(B) (Administrator may not regulate

fuel additive on account of its harm to vehicle emission control

systems unless it first does cost-benefit analysis of such regulation);

42 USC. 7411(a)(1), (b)(1) (for certain categories of new sources,

Administrator must set “standards of performance,” which take into

some cases, Congress explicitly allowed the agency to range

beyond specifically enumerated factors, by winding up a list

of statutorily relevant factors with open-ended language such

as “among other factors,” see, e.g., 42 U.S.C. 7411(d)(2)(B),

7411(j)(1)(A)(iv), or “and other relevant factors,” see, e.g., 42

U.S.C. 7412(a)(1), 7412(f)(2)(A). Congress included no such

unstructured authority in section 202(a)(1).

This Court has made plain that the courts’ role in statutory

interpretation begins, and often ends, with the. statute's

language. See, e.g., Consumer Product Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980) (speaking for a

unanimous Court, Justice Rehnquist observed: “(T]he starting

point for interpreting a statute is the language of the statute

itself. Absent a clearly expressed legislative intention to the

contrary, that language must ordinarily be regarded as

conclusive.”). In trying to discern a statute’s meaning, the

Court has found it helpful—often decisive—to compare the

language of the statutory provision in question with language

found elsewhere in the statute: “Where Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 US. 16,

23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720,

722 (5th Cir. 1972)).”

These principles are a hallmark of this Court's

jurisprudence under the Clean Air Act. Where Congress has

listed certain factors as relevant in one part of the Act, and not

in another, this Court has consistently respected this

account cost and “any nonair quality health and environmental

impact and energy requirements”).

7 See also, e.g., Jama v. Immigration & Customs Enforcement, 543 U.S.

335, 341 (2005) (“We do not lightly assume that Congress has

omitted from its adopted text requirements that it nonetheless

intends to apply, and our reluctance is even greater when Congress

has shown elsewhere in the same statute that it knows how to make

such a requirement manifest.”).

legislative choice. For example, in Whitman v. American

Trucking Ass’ns, this Court held that the absence of any

reference to costs in the provision specifying the criteria for

NAAQS, 42 U.S.C. 7409(b)(1), and the numerous references to

costs in other provisions of the Act, plainly precluded

consideration of costs in setting the NAAQS. 531 U.S. at 465-

468. In so ruling, the Court relied on Union Elec. Co. v. EPA,

427 U.S. 246 (1976), where the Court had similarly held that

where Congress identifies the factors an agency must consider

in decisionmaking, the agency is not free to stray and consider

additional factors of its choosing. See id. at 256-266 (EPA may

not consider economic and technological infeasibility in

deciding whether to approve States’ plans for implementing

the NAAQS). See also General Motors Corp. v. United States, 496

U.S. 530, 538 (1990) (in holding that the four-month time limit

for EPA review of an original state implementation plan did

not apply to plan revisions, Court observed: “[s}jince the

statutory language does not expressly impose a 4-month

deadline and Congress expressly included other deadlines in

the statute, it seems likely that Congress acted intentionally in

omitting the 4-month deadline” in the provision at issue).

In this case, EPA, along with the lead opinion in the D.C.

Circuit, strayed from this well-marked path. The agency

thought that it could decline to regulate emissions from new

motor vehicles under section 202(a)(1) by invoking a mélange

of factors not mentioned in that provision. Not so. An

administrative agency cannot rest its decisions “on factors

which Congress has not intended it to consider.” Motor Vehicle

Mfrs. Ass‘n of the U.S, v. State Farm Mut. Auto Ins. Co., 463 US.

29, 43 (1983). The provision under which EPA made its

decision, section 202(a)(1) of the Clean Air Act, is crystalline:

EPA is to decide whether to regulate an air pollutant emitted

by motor vehicles on the basis of its judgment as to whether

public health or welfare may reasonably be anticipated to be

endangered by the pollution, not the grab bag of

considerations EPA invoked in this case.

B. The policy judgments EPA cited in refusing to

regulate air pollutants associated with climate change

were irrelevant under section 202(a)(1) or failed to

take account of the statutory endangerment standard.

Even if section 202(a)(1) did not so plainly rule out

consideration of factors other than endangerment in the initial

decision whether to regulate emissions from motor vehicles,

the text and structure of the Clean Air Act make clear that

three of the specific factors EPA did consider are irrelevant

under this provision. EPA could appropriately consider a

fourth factor, scientific uncertainty, but the agency failed to

relate that factor to the statutory standard of endangerment.

EPA expressed concern that regulation under section

202(a)(1) would “result in an inefficient, piecemeal approach

to addressing the climate change issue.” Pet. App. A85.

Section 202(a)(1) itself, however, embraces the very kind of

approach EPA criticizes. It directs EPA to regulate motor

vehicle emissions that “cause, or contribute to” air pollution

that passes the endangerment threshold. 42 U.S.C. 7521(a)(1)

(emphasis added). Congress used the same phrasing in

directing EPA to set other standards under the Act. See, e.g.,

42 U.S.C. 7411(b)(1)(A) (stationary sources); 7545(c)(1) (fuels

and fuel additives). Clearly, the Act endorses incremental

responses to air pollution problems, rather than necessarily

requiring all-encompassing solutions. EPA is free to propose a

comprehensive solution to the problem of climate change if it

wishes to do so, but it is not free to reject the approach

Congress explicitly set forth in section 202(a)(1).¥

78 In addition, as a factual matter, it is hard to credit EPA‘s

characterization of the approach it opposes as “piecemeal.”

Repeating the legal conclusion first announced in the decision at

issue here, EPA has also refused to regulate carbon dioxide

emissions from power plants and other stationary sources. 71 Fed.

Reg. 9866, 9869 (2006). Together, mobile sources and power plants

are responsible for more than 60 percent of the carbon dioxide

emissions inventory in this country. See Energy Information

z 40

The same observation applies to EPA’s suggestion that

reduction of air pollutants associated with climate change in

this country might be offset by increases of such air pollutants

in other countries, and thus “climate change raises important

foreign policy issues” which “it is the President's prerogative

to address.” Pet. App. A86. In enacting section 202(a)(1),

Congress was clearly aware that emissions from mobile

sources might not be the sole cause of an air pollution

problem, yet it directed EPA to regulate even when they

“contribute to” such a problem.” In other provisions of the

Act, moreover, Congress specifically directed EPA to consider

“emissions emanating from outside of the United States” in

making regulatory decisions. See 42 U.S.C. 7509a; see also

7513(e). Congress gave no such direction to EPA in section

202(a)(1).%

EPA also expressed concern that technologies might not be

available to control air pollutants associated with climate

change emitted by motor vehicles. Pet. App. A87. This is,

however, plainly not relevant to deciding whether the

endangerment standard of section 202(a)(1) is met. As

detailed in the previous section, the remainder of section 202

does direct EPA’s attention to the availability of technology,

but only once the agency has found endangerment.

Administration, Emissions of Greenhouse Gases in the United States

2004 at 22 (Dec. 2005) (describing carbon dioxide emissions of

transportation and _ electric power sectors), available at

http:/ / www.eia.doe.gov/ oiaf/1605/ ggrpt.

2 Tellingly, EPA has regulated mercury, a global pollutant, under

the Act, see 70 Fed. Reg. 28606 (2005), despite the possibility that

domestic reductions will be offset by increased emissions elsewhere.

30 To the extent EPA hopes, with a glancing reference to “foreign

policy issues” and “the President's prerogative,” Pet. App. A86, to

convince this Court to override the plain statutory text, its hope must

prove forlorn. No principle of statutory construction or of

constitutional law permits such an aggrandizement of executive

authority.

The one factor mentioned by EPA that has anything to do

with the endangerment standard of section 202(a)(1) is

scientific uncertainty. However, as the lead opinion below

expressly found, EPA did not rely solely on uncertainty in

coming to its decision. Pet. App. A14-A15. Instead, it relied

on uncertainty in combination with the other factors clearly

having no relevance to the endangerment decision under

section 202(a)(1). Jd. at A82-A87. The consideration of

statutorily excluded factors taints EPA’s entire decision; we

cannot know what EPA would have done if it had exercised its

judgment in light of the only legally relevant consideration —

endangerment of public health or welfare—and this Court

cannot supply an answer EPA itself did not give. See, e.g., SEC

v. Chenery Corp., 318 U.S. 80, 93-95 (1943); State Farm, 463 U.S.

at 57.

Moreover, EPA failed to relate its discussion of scientific

uncertainty to the statutory standard of endangerment. The

existence of uncertainty is not a bar to regulation or an excuse

for inaction.*! An agency cannot defer action “while it awaits

the Godot of scientific certainty.” Pub. Citizen Health Research

Group v. Chao, 314 F.3d 143, 156 (3d Cir. 2002) (Becker, J.)

(quoting United Steelworkers of America v. Marshall, 647 F.2d

1189, 1266 (D.C. Cir. 1980)). Congress underscored this point

in 1977 by amending section 202(a)(1) (and other key

regulatory provisions of the Act) to require the Administrator

to regulate emissions from motor vehicles which “in his

judgment cause, or contribute to, air pollution which may

reasonably be anticipated to endanger public health or welfare.” —

Pub. L. No. 95-95, § 401, 91 Stat. 685, 791 (1977) (emphasis

added); see also Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506, 514 n. 12 (D.C. Cir. 1983) (discussing 42

31 Cf. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607,

656 (1980) (plurality opinion) (stating that, in setting workplace

standards for toxic substances, Occupational Safety and Health

Administration was “not required to support its finding that a

significant risk - exists with anything approaching scientific

certainty”).

U.S.C. 7545(c)(1)). Previously, the Act had set regulation in

motion based on the Administrator's judgment that any air

pollutant from motor vehicles “causes or contributes to, or is

likely to cause or contribute to, air pollution which endangers

the public health or welfare.” Pub. L. No. 91-604, § 6(a), 84

Stat. 1676, 1690 (1970). The textual change, from “endangers”

to “may reasonably be anticipated to endanger,” plainly

signals that regulation of new motor vehicles is not to be

eschewed merely because the relevant science is uncertain. 22

EPA did not come close to applying this standard correctly

in this case. EPA did not seriously engage with the scientific

evidence indicating that the pollutants at issue here are

changing the earth’s climate, causing destructive present

effects and laying the groundwork for even worse future

ones. Instead, EPA made do with a staccato listing of

remaining uncertainties with respect to climate change. Pet.

App. A82-A85. The centerpiece of its discussion was the 2001

National Research Council Report on climate change (issued

after the comment period closed), from which EPA plucked

the choicest concessions to scientific uncertainty. Yet

nowhere did EPA address the overall thrust of the Report,

which confirmed the _ scientific community's “current

thinking” that “most of the observed warming of the last 50

years is likely to have been due to the increase in greenhouse

32 In Ethyl Corp. v. EPA, 541 F.2d 1, 25 (D.C. Cir. 1976) (en banc), the

court held that the earlier endangerment standard authorized

“regulatory action to prevent harm, even if the regulator is less than

certain that harm is otherwise inevitable.” In 1977, Congress

amended section 202(a)(1) “to support the views expressed” in Ethyl.

H.R. Rep. 95-294 at 49. Specifically, “[iJn order to emphasize the

precautionary or preventive purpose of the act (and, therefore, the

Administrator's duty to assess risks rather than wait for proof of

actual harm), the committee not only retained the concept of

endangerment to health; the committee also added the words ‘may

reasonably be anticipated.’” Id. at 51.

%3 For detailed discussion of this evidence, see Brief of Amici Curiae

Climate Scientists David Battisti, et al.

“ates

gas concentrations,” that the accumulation of greenhouse

gases is due to “human activities,” and that “/dJespite the

uncertainties, there is general agreement that the observed

warming is real and particularly strong within the last 20

years.” J.A. 151, 157, 158 (emphasis added). Imagine

describing the scientific evidence of the risks of smoking by

referring solely to language qualifying the conclusions in the

Surgeon General's Reports on smoking and health, and

excluding discussion of the evidence that smoking causes

human disease. That is what EPA’s discussion of the science

of climate change is like.

Even with respect to the one factor relevant to

determinations under section 202(a)(1), therefore, EPA

blundered. Mere incantation of the words “scientific

uncertainty,” paired with terse and selective references to the

state of the science, is not a substitute for the mature scientific

inquiry plainly contemplated by section 202(a)(1).4* Whether

air pollutants associated with climate change may be

reasonably anticipated to endanger public health or welfare

“is a matter for the agency to decide, but it must bring its

expertise to bear on the question.” State Farm, 463 U.S. at 54.

4 Of course, as Judge Tatel recognized, if scientific uncertainty was

sufficient to prevent the Administrator from making a credible

finding either of endangerment or non-endangerment, EPA could

lawfully decline to regulate. Pet. App. A46, A48-A49 (“If the

Administrator concludes based on substantial evidence that more

research is needed before he can judge whether GHGs may

reasonably be anticipated to endanger welfare, then he has

discretion to hold off making a finding. . . . In short, EPA may

withhold an endangerment finding only if it needs more information

to determine whether the statutory standard has been met.”). Here,

however, the agency declined to regulate based on policy reasons; it

-never claimed that scientific uncertainty prevented it from

determining whether the endangerment threshold had been crossed.

Id. at ASO (“EPA never suggests that the uncertainties identified by

the NRC Report prevent it from determining that GHGs ‘may

reasonably be anticipated to endanger’ welfare.”).

EPA’s mistaken legal judgment about the requirements of

section 202(a)(1) led it far afield from this basic principle.

Cc. Section 202(a)(1)’s reference to the Administrator's

“judgment” does not give the Administrator

unfettered discretion in deciding whether to regulate

air pollution from motor vehicles.

In the crucial passage in his opinion announcing the

judgment of the court of appeals, Judge Randolph found that

the word “judgment” in section 202(a)(1) gave EPA the kind of

discretion normally reserved for legislatures:

In requiring the EPA Administrator to make a threshold

“judgment” about whether to régulate, § 202(a)(1) gives

the Administrator considerable discretion. Congress does

not require the Administrator to exercise his discretion

solely on the basis of his assessment of scientific evidence.

What the Ethyl court called “policy judgments” also may

be taken into account. By this the court meant the sort of

policy judgments Congress makes when it decides

whether to enact legislation regulating a particular area.

Pet. App. Al3 (citations omitted); see also id. at A80-A81

(explaining EPA’s view of its discretion under section

202(a)(1)).

This interpretation of the phrase “in his judgment” must

be rejected. Here again, the plain text of the statute supplies

the answer. Section 202(a)(1) of the Clean Air Act states:

The Administrator shall by regulation prescribe .. .

standards applicable to the emission of any air pollutant

from any class or classes of new motor vehicles or new

motor vehicle engines, which in his judgment cause, or

contribute to, air pollution which may reasonably be

anticipated to endanger public health or welfare.

42 U.S.C. 7521(a)(1). A simple parsing of the language shows

that the phrase “in his judgment” modifies the clause

describing causation and endangerment.** It does not qualify

the whole of section 202(a)(1).

The phrase “in his judgment” performs two simple

functions in this provision. First, it makes clear that decision-

making authority under section 202 is lodged in the

Administrator of the EPA, not in any other official. Cf

Gonzales v. Oregon, 126 S.Ct. 904, 916-922 (2006) (declining to

defer to the Attorney General's interpretation of the

Controlled Substances Act where the interpretation pertained

to matters outside his statutory purview). Second, it makes

clear that Congress recognized the substantial challenges that

may attend determinations about air pollution and

endangerment, and did not expect or desire the Administrator

to adhere to any rigid or mechanistic scientific formula in

making decisions under conditions of uncertainty.

Under the ruling below, the phrase “in his judgment” —

inserted in the middle of a statutory provision and clearly

qualifying only part of it— would swallow the whole of section

202(a)(1). While it may be that in other contexts a nod to an

administrative official's judgment would convey the kind of

discretion contemplated by the lead opinion below, here the

statutory context makes plain that “in his judgment” modifies

35 See also H.R. Rep. No. 95-294 at 51 (1977) (“[T]he term ‘in the

judgment of the Administrator’ is intended to modify both the ‘cause

or contribute to’ phrase and the ‘reasonably may be anticipated’

phrase.”).

% See H.R. Rep. No. 95-294 at 50-51 (1977) (describing House

committee’s decision, in crafting 1977 Amendments to the Act, to

“use[] a~standardized basis for future rulemaking to protect the

public health: the Administrator may regulate a pollutant, emissions

of ‘which in his judgment cause or contribute to air pollution which

may reasonably be anticipated to endanger public health or

welfare,” and explaining that it would allow the Administrator “a

substantial element of judgment, including making comparative

assessment of risks, projections of future possibilities, establishing

margins of safety and margins of error, extrapolating from limited

data, etc.”).

only the phrase following it, describing the scientific

determination regarding endangerment. As this Court has

counseled time and again,

[t]he definition of words in isolation . . . is not necessarily

controlling in statutory construction. A word in a statute

may or may not extend to the outer limits of its definitional

possibilities. Interpretation of a word or phrase depends

upon reading the whole statutory text, considering the

purpose and context of the statute, and consulting any

precedents or authorities that inform the analysis.

Dolan v. U.S. Postal Service, 126 S.Ct. 1252, 1257 (2006); see also,

e.g., Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“Particularly when

interpreting a statute that features as elastic a word as ‘use,’

we construe language in its context and in light of the terms

surrounding it.”).

By giving EPA wide-open discretion to decline to regulate,

the lead opinion below also effectively converts the mandatory

“shall” in section 202(a)(1) into a permissive “may.” If

Congress had meant “may,” it could have written “may,” just

as it did in giving the Administrator the authority to regulate

fuels and fuel additives.” But that is not what Congress did.

The conclusion-that the phrase “in his judgment” does not

give the agency freewheeling discretion is bolstered by

consulting the many other provisions in the Clean Air Act that

use this same phrase. In numerous instances, the Act includes

the phrase “in his judgment” (or “in the Administrator's

judgment”) when it directs the Administrator to make a

scientific determination that is a condition precedent to

regulation or other administrative action.* Congress’s use of

3” 42 USC. 7545(c)(1) (“The Administrator may . . . control or

prohibit the manufacture . . . of any fuel or fuel additive . . . if in the

judgment of the Administrator any emission product of such fuel or

fuel additive causes, or contributes, to air pollution which may

reasonably be anticipated to endanger the public health or welfare . .

..”) (emphasis added).

% See, e.g., 42 US.C. 7408(a)(1)(A) (listing criteria pollutants);

7409(b)(1)-(2) (setting primary and secondary NAAQS);

the phrase “in his judgment” in so many critical provisions of

the Act shows the danger in the radical interpretation of that

term endorsed by the lead opinion below. If mere reference to

the “judgment” of the Administrator gives the agency license

not to regulate—or to regulate— based on the Administrator's

undisciplined sense of whether it “makes sense to regulate,”

Pet. App. A81, then many of the Act’s most important

provisions become blank canvases for the Administrator to

paint as he wishes. This is not what the statute says, and it is

not consistent with this Court's continued admonitions that

statutes must give some direction to agencies about how they

are to implement the statutes they are charged with

administering. American Trucking, 531 U.S. at 475.39

The lead opinion’s sweeping view of the phrase “in his

judgment” also has the potential to disrupt other statutory

regimes. Numerous federal statutes direct an administrative

official or agency to prescribe regulations when specific

statutory criteria are, according to the official or agency’s

“judgment,” met. If, as the opinion below suggests, mere

7411(b)(1)(A) (listing stationary sources subject to New Source

Performance Standards (NSPS)); 7411(h)(1) (setting NSPS); 7412(h)(1)

(setting standards for hazardous air pollutants); 7545(c)(1)

(regulating fuels and fuel additives); 7547(a)(3)-(4) (setting standards

for nonroad engines and vehicles); 7671n (regulating ozone-

depleting substances).

3 In American Trucking, this Court held that section 109(b), 42 U.S.C.

7409(b), allows consideration only of effects on public health and

welfare when EPA sets the NAAQS, and precludes consideration of

other factors such as cost. 531 US. at 464-471. Yet under the

approach adopted by the lead opinion below, the reference to

“judgment” in section 109(b) of the Act would broadly authorize

consideration of “the sort of policy judgments Congress makes.”

Pet. App. A13. This approach is completely at odds with this Court's

more modest statement of the agency’s discretion in American

Trucking.

See, e.g., 33 US.C. 601 (“[i]t shall be the duty” of the Secretary of

the Army to issue regulations regarding use and administration of

reservoirs at the head of the Mississippi River, as, in his judgment,

inclusion of the word “judgment” in a statutory provision is

enough to transform it into “a discretionary exercise,” Pet.

App. A80, then these many other statutory provisions become

empty vessels for the agencies to fill (or not) as they please.

Indeed, the approach taken in the lead opinion below

mocks the very process of judicial review. The purpose of

judicial review is not well served when courts approve agency

action with reasoning that reads like Alexandre Dumas’s

famous carte blanche: “It is by my order and for the good of the

state that the bearer of this has done what he has done.”

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

public necessity and interest require); 42 U.S.C. 300g-1(b)(2)(B) (EPA

Administrator may regulate drinking water contaminants not listed

in regulatory schedules if, in his judgment, regulation of them “is

more likely to be protective of public health”); 42 U.S.C. 2156a

(Nuclear Regulatory Commission “shall” issue regulations setting

levels of physical security “which in its judgment will provide

adequate protection” for nuclear facilities and material “taking into

consideration variations in risks to security as appropriate”).

August 31, 2006

Respectfully submitted,

THOMAS F. REILLY

Attorney General of Massachusetts

LISA HEINZERLING

Special Assistant Attorney General

600 New Jersey Ave., N.W.

Washington, D.C. 20001

(202) 662-9115

JAMES R. MILKEY*

WILLIAM L. PARDEE

CAROL IANCU

Assistant Attorneys General

1 Ashburton Place, 18% Floor

Boston, MA 02108

(617) 727-2200

*Counsel of Record

BILL LOCKYER

Attorney General of California

MARC N. MELNICK

NICHOLAS STERN

Deputy Attorneys General

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612

(510) 622-2133

RICHARD BLUMENTHAL

Attorney General of

Connecticut

KIMBERLY MASSICOTTE

MATTHEW LEVIN

Assistant Attorneys General

P.O. Box 120

55 Elm Street

Hartford, CT 06141-0120

(860) 808-5250

LISA MADIGAN

Attorney General of Illinois

MATTHEW J. DUNN

GERALD T. KARR

Assistant Attorneys General

188 West Randolph Street

20th Floor

Chicago, IL 60601

(312) 814-3369

G. STEVEN ROWE

Attorney General of Maine

GERALD D. REID

Assistant Attorney General

State House Station #6

Augusta, ME 04333-0006

(207) 626-8545

ZULIMA V. FARBER

Attorney General of

New Jersey

STEFANIE A. BRAND

KEVIN P. AUERBACHER

LISA MORELLI

Deputy Attorneys General

Richard J. Hughes Justice

Complex

25 Market St., P.O. Box 093

Trenton, NJ 08625-0093

(609) 633-8713

PATRICIA A. MADRID

Attorney General of

New Mexico

STUART M. BLUESTONE

Deputy Attorney General

STEPHEN R. FERRIS

JUDITH ANN MOORE

Assistant Attorneys General

P.O. Drawer 1508

Sante Fe, NM 87504-1508

(505) 827-6010

ELIOT SPITZER

Attorney General

of New York

CAITLIN J. HALLIGAN

Solicitor General

PETER LEHNER

J. JARED SNYDER

Assistant Attorneys General

120 Broadway

New York, NY 10271

(212) 416-8016

HARDY MYERS

Attorney General of Oregon

PHILIP SCHRADLE

Special Counsel to the

Attorney General

RICHARD WHITMAN

Assistant Attorney General

Oregon Dept. of Justice

1162 Court Street, N.E.

Salem, OR 97301

(503) 378-6002

PATRICK C,. LYNCH

Attorney General

of Rhode Island

TRICIA K. JEDELE

Special Assistant Attorney

General

150 South Main Street

Providence, RI 02903

(401) 274-4400

WILLIAM H. SORRELL

Attorney General of Vermont

KEVIN O. LESKE

Assistant Attorney General

109 State Street

Montpelier, VT 05609-1001

(802) 828-6902

ROB MCKENNA

Attorney General of

Washington

LESLIE R. SEFFERN

Assistant Attorney General

JAY D. GECK ;

Deputy Solicitor General

P.O. Box 40117

Olympia, WA 98504-0117

(360) 586-4613

ROBERT J. SPAGNOLETTI

Attorney General of the

District of Columbia

TODD S. KIM

Solicitor General

441 Fourth Street, N.W.

6th Floor South

Washington, D.C. 20001

(202) 724-6609

MALAETASI M. TOGAFAU

Attorney General

of American Samoa

P.O. Box 7

Pago Pago, American Samoa

96799

011 (684) 633-4163

MICHAEL CARDOZO

Corporation Counsel

City of New York

SUSAN KATH

SCOTT PASTERNACK

TRACY TRIPLETT

Assistant Corporation Counsel

100 Church Street

New York, NY 10007

(212) 676-8517

RALPH S. TYLER

City Solicitor

City of Baltimore

WILLIAM PHELAN, JR.

Principal Counsel

Baltimore City Dept. of Law

100 Holliday Street

Baltimore, MD 21202

(410) 396-4094

JULIE TEEL

P.O. Box 7745

San Diego, CA 92167

(619) 224-3400

Counsel for Center for

Biological Diversity

JOSEPH MENDELSON III

660 Pennsylvania Ave. SE

Washington, DC 20003

(202) 547-9359

Counsel for International

Center for Technology

Assessment, Center for Food

Safety, Environmental

Advocates, and Greenpeace

JOSEPH MENDELSON III

660 Pennsylvania Ave. SE

Washington, DC 20003

(202) 547-9359

Counsel for International

Center for Technology

Assessment, Center for Food

Safety, Environmental

Advocates, and Greenpeace

SETH KAPLAN

62 Summer Street

Boston, MA 02110

(617) 850-1721

Counsel for Conservation Law

Foundation

JAMES B. TRIPP

257 Park Avenue South

17th Floor

New York, NY 10010

(212) 505-2100

Counsel for Environmental

Defense

BRIAN DUNKIEL

Shems Dunkiel Kassel &

Saunders PLLC

91 College Street

Burlington, Vermont 05401

(802) 860-1003

DANIELLE FUGERE

311 Calif. St., Ste. 510

San Francisco, CA 94104

(415) 544-0790

Counsel for Friends of the

Earth

JOHN M. STANTON

1200 18th Street, N.W.

Washington, DC 20036

(202) 887-8800

Counsel for National

Environmental Trust

DAVID DONIGER

1200 New York Ave., NW

Washington, DC 20005

(202) 289-2403

Counsel for Natural Resources

Defense Council

DAVID BOOKBINDER

408 C Street, NE

Washington, DC 20002

(202) 548-4598

HOWARD FOx

1625 Massachusetts Ave.,

NW, Suite 702

Washington, DC 20036

(202) 667-4500

Counsel for Sierra Club

ALEXANDRA SCHULTE

1707 HSt., N.W. Suite 600

Washington, DC 20006

(202) 223-6133 x 109

Counsel for Union of

Concerned Scientists

ALEX FIDIS

218 D Street, SE

Washington, DC 20003

(202) 546-9707

Counsel for U.S.

Public Interest Research

Group

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.