Respondents Brief — Massachusetts v. EPA

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OCT 24 2006

No. 05-1120 OFFICE Or yi

IN THE

Supreme Court of the United States

THE COMMONWEALTH OF MASSACHUSETTS, ef ai.,

Petitioners,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ef ai.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENTS

ALLIANCE OF AUTOMOBILE MANUFACTURERS,

ENGINE MANUFACTURERS ASSOCIATION,

NATIONAL AUTOMOBILE DEALERS ASSOCIATION,

TRUCK MANUFACTURERS ASSOCIATION

KENNETH W. STARR THEODORE B. OLSON

STUART A.C. DRAKE Counsel of Record

ANDREW B. CLUBOK MIGUEL A. ESTRADA

ASHLEY C. PARRISH DAVID DEBOLD

DEREK S. BENTSEN MATTHEW D. MCGILL

AMIR TAYRANI

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W GIBSON, DUNN & CRUTCHER LLP

Washington, D.C. 20005 1050 Connecticut Avenue, N.W.

(202) 879-5000 Washington, D.C. 20036

(202) 955-8500

RICHARD A. CORDRAY

4900 Grove City Road

Grove City, Ohio 48123

Counsel for Respondents

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Pu aaeed

QUESTIONS PRESENTED

1. Whether petitioners have standing to challenge EPA’s

decision not to regulate the emission of carbon dioxide and

other compounds that may contribute to global climate

change.

2. Whether the EPA Administrator has authority under

section 202(a)(1) of the Clean Air Act to regulate carbon

dioxide and other compounds that may contribute to global

climate change.

3. Whether the EPA Administrator may decline to issue

emissions standards for motor vehicles based on policy con-

siderations not specifically enumerated in section 202(a)(1)

of the Clean Air Act.

TABLE OF CONTENTS

Page

ne OT ccinsiccicicsictnscnptmenacteincennanineneiints ii

AS Ce FF Cae i rccrssxcccncecssceesesescnnesenmnenssnennnseants iv

INTRODUCTION AND COUNTERSTATEMENT ............ |

SUMMARY OF ARGUMENT.............::s:cccssssssssssessseseeseseaees 6

UE, tininticisiatsabiisaiinigiibiins naciicnttaigainnnigmmninininsinnnion 8

I. Petitioners Lack Article IT Standing snsetabiinvoneniantenitaliinati 8

A. Petitioners’ Alleged Injuries Are Conjectural,

Not Imminent, And Too Guneralized................0006: 9

B. The Relief Requested By Petitioners Is

Unlikely To Redress Their Alleged Injuries. ....... 16

I. The Clean Air Act Does Not Authorize EPA To

Regulate Greenhouse Gas Emissions For Purposes

Of Controlling Global Climate Change...................0++ 18

A. The Text Of The Act Does Not Authorize

EPA To Regulate Greenhouse Gas Emissions

For Climate Change Purposes. ............:00sssesesseers 19

1. The Statute’s Plain Language Does Not

Authorize EPA Regulation. ..................s0000+ 19

2. The Statutory Scheme Does Not

Contemplate EPA Regulation...............000++ 24

B. Regulatory History Confirms That EPA Lacks

Authority To Regulate Greenhouse Gas

Emissions For Climate Change Purposes............. 28

C. The Legislative History Contains No

Indication That Congress Intended EPA To

Regulate Greenhouse Gas Emissions For

Climate Change Purposes. ..............:s:sssessseseeeeees 31

iii

D. Petitioners’ Interpretation Of EPA’s Authority

Cannot Be Reconciled With Other Statutes

Addressing Climate Change And Fuel

Economy Stamdards. ..........ccssccccssssesssrssscessceosseees 35

1. Congress Has Addressed Global Climate

Change In Other Statutes. ..............scssssseesees 36

2. When Congress Has Wanted EPA To

Address Global Environmental Issues, It

Has Created A New Statutory

UII, ssicrcrtainisenniapinnisisitidernnibibchinisduiinmbepitaniduine 38

3. Congress Has Declined To Delegate EPA

Authority To Regulate Carbon Dioxide

_ Emissions From Motor Vehicles. ................. 41

Ii]. EPA Properly Exercised Its Broad Discretion In

Declining To Make An Endangerment Finding. .......... 43

A. EPA Possesses Broad Inherent Discretion

When Determining Whether To Initiate

Rulemaking Proceeding’. ..............:sssssseseeseeeeenes 43

B. Section 202(a) Affords EPA Discretion To

Decline To Regulate Based On Policy

Considerations That It Deems Relevant............... 47

ea TEIITT ciceetnccnceiesnaitaeasiineninsalsanibinsneniencineinnasnmase 50

TABLE OF AUTHORITIES

Page

Cases

Allen v. Wright,

GB a. FET Ce scscscecnsscicicisesininnaninieinentiaiimaiamaias 18

Amoco Oil Co. v. EPA,

S43 F.26 270 (D.C. Cit. 1976) ..cccccsecsccceescesccsosesccocesescees 31

Ariz. Pub. Serv. Co. v. EPA,

211 F.3d 1280 (D.C. Cir. 2000) ..0.......eecesseceseseeeseeeeeees 24

ASARCO Inc. v. Kadish,

BO UB, Ge cintettincinnnnnimnimiiaiaa 18

Babbitt v. United Farm Workers,

GES CED, Fie CI OOP cccccencsvessescectenesesentteeeenitnitmadmeminiaia 9

Central Valley Chrysler-Jeep, Inc. v. Witherspoon,

BUD, GOGGGD GBA. Ca) nsccccosccoscccescscnnnsssnsstonnneonaions 14, 15

Chevron U.S.A. Inc. v. NRDC,

SBT UB. G57 CID ccecerssntansecninscteusisssiitimnmiaciiaaians 36, 49

Chisom v. Roemer,

501 U.S. 380 (1991).........cccccsseseseee niiabtiidisaaataniieaaial 38

Chrysler Corp. v. Brown,

OEE ULE, BPE CII e cceccnssnrcconcisesstsniesssitintinieamamumaiea 37

Chrysler Corp. v. EPA,

631 F.2d 865 (D.C. Cir. 1980) .............cssccsscssersseees 23, 28

City of Los Angeles v. Lyons,

GGT UES. Fo COD cccceccecenstiiccnsssitsessinnenpeunsnniineiiiaaiaa 9

Deal v. United States,

SOB-ULZ. 10D (OGG) weiescccccccrseccsovscctenansevetncincesntisensetaetn 22

Dir. of Revenue v. CoBank ACB,

RE BT a ssssneseenn 40

Doe vy. Chao,

TT ETE 19

Dolan v. USPS,

TT one a icsinietaeecnnssnteshgnesanenies 19, 22

Elk Grove Unified Sch. Dist. v. Newdow,

aoe anata tpeteienntnanmnsntpenennnens 12

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246 (2004)..... sesssnnsssecnnnsvsscnnsnnsesnssanensssne 19

Ethyl Corp. v. EPA,

ee Eta GES UP UED cactncccnsserncecsctidecnsensennssenseseses 48

Exxon Mobil Corp. v. EPA,

Be ee Be ee Ge, Bi ccccncsccsccsccccccncencscnssccreccenees 30

FDA v. Brown & Williamson Tobacco Corp.,

| ___ eNEETEe passim

FEC v. Akins,

EEE aan ane Ee 11

Fresno Dodge, Inc. v. California Air Resources

Board, No. 04-CECG-03498 (Fresno County

ES Te a 14

FW/PBS, Inc. v. City of Dallas,

SIT sctiinbiscencictninneninsentascnmneesesneenstennenmnens 8

Gen. Dynamics Land Sys., Inc. v. Cline,

Tn 32

General Motors Corp. v. California Air Resources

Board, No. 05-CECG-02787 (Fresno County

aD 14

Green Mountain Chrysler Plymouth Dodge Jeep v.

Balmasse, No. 05-CV302 (D. Vt.) .......cc.c.eceeeseeseesereeseeees 14

Haig v. Agee,

ae 29

Heckler v. Chaney,

Py Ce IE cenccccrenssittntitisinmieniniemamaed 43, 44, 47

Hibbs v. Winn,

ee ee re rcesencocenseninsnniniinncainannitenpianeiangnnntein 23

I.N.S. v. Cardoza-Fonseca,

ee I cicccnsstecnninsitasincnnenncennnatintntnnetensiets 23

INS v. Yueh-Shaio Yang,

ee Se iihirtiannctninsstiannatenpnccntpermasonniniincestel 47

Koons Buick Pontiac GMC, Inc. v. Nigh,

ee ed i iiretrtenctncecintitintnaneninamieniniinens 24

KP Permanent Make-Up, Inc. v. Lasting Impression I,

eee 23

Lincoln Dodge, Inc. v. Sullivan,

ei ardiccecccececsrenenacenintininecinareieimannnaates 14

Lincoln v. Vigil,

ee Ce I coctenicenesernsnctnsncnecmmmmmmanieneinantl 44

Lopez v. Davis,

ee ee I cterncereennceninctiteeisinmmnnntteninminnineedl 47

Lorillard v. Pons,

a 49

Lujan v. Defenders of Wildlife,

ee ts Se cocesiencsemnccnrescemtnennecssnenesmntnensnsccel passim

MCI Telecomms. Corp. v. AT&T Co.,

ee ee I crrecertectrrcinrattesmmnenpiscigeennnins 36

Mich. v. EPA,

yr fh | ol leds f | 24

Motor & Equip. Mfrs. Ass'n v. EPA,

G27 B26 1GBS OD.C. Cle. 1979) aceccccesccecccecccecccsesccssccesese 23

Nat'l Mining Ass'n v. DOI,

70 F.3d 1345 (D.C. Cir. 1995) ........ccccccccccesseessersseerenenees 44

vil

Newman-Green, Inc. v. Alfonzo-Larrain,

ee Sse

Nixon v. Mo. Mun. League,

Re es Ce niipteetearcndescasconsevintscscsssemmnasicenmaseete 22

NLRB v. Drivers, Chauffeurs, Helpers Local Union

No. 639, 362 U.S. 274 (1960)......-..:ccccsesersereessereseseerensees 36

NRDC, Inc. v. Train,

ee 27

Sea-Land Service, Inc. v. Dep't of Transportation,

ee 15

Shannon v. United States,

Fe es Ue I cicertecctensnetsennesesssssersstensennnanesmnesen 32

Simon v. E. Ky. Welfare Rights Org.,

I is I ccinierinsttnrananetenatnocccssenncsnmnenesenmniiots 16, 18

Steel Co. v. Citizens for a Better Env't,

Se Se CE enierritrhetaniesnenccesrssennencennsseneereneensenconnts 16

Union Elec. Co. v. EPA,

EN 24, 49

Union Electric Co. v. EPA,

427 U.S. 246 (1976) .......ccccccsceeeeeeseee sensectansctmammenimenscsed 49

United States Nat’l Bank of Or. v. Indep. Ins. Agents

of Am., Inc., 508 U.S. 439 (1993)...c...cceccsvesssseessvecssneeenee 19

United States v. Fausto, .

a ee ee itterisssiantenmpnepenecemenineemenmmmnntinmenigi 36

United States v. Mead Corp.,

ee SUI UU cess tiecncsocansnsenennhecortreniitenmieteinaiohmes 36

Warth v. Seldin,

IT titiadinirinsietaninentscestnasenemeamansitgnnnessends 11

Whitman v. Am. Trucking Ass'ns,

8 Ee 26, 49

viii

Whitmore v. Arkansas,

495 U.S. 149 (1990) ..0......eceeeeee. misnsctmasinatel 9, 10, 11, 14

WWHT, Inc. v. FCC,

| a4

Zemel v. Rusk,

Be Cee CE ctcinctisiicirnenienceinnemabinneaiinenniaidiien 29

Statutes

SO CIR. § SS.ZIZAMa IS GMA) 2ncccaccccscsnrevecessrerscesesecsesress 30

SRS WIND cep inctneneneniccnidinnndenmineniinenmmnnaiits 1, 20

SF es Op SR erecnencenesenenetrscnssecimnicsgirenemnennctenin 39, 40

SB A. 8 FD cccsczcscscssessanssenseneccnesenensssunsessseseseneeseeseaenstet 24

Sa eee Or Ca rncrticnnntresieneneitcennsemniemgnaectinets 27, 28

rs i erninrttniceciptnntccnnnmcanciivinatinanstemmeaiianiin 24, 26

ls OF Fe eininseretenceennitnncernceniensiavinnnisiniinniainnciiien 2

Me 24

1 lee 0 Ci erccetenmsemsermmmesmsenennemeninnctanial passim

a 1 PP ccceentennnticsrenetsnsmenentemnnamnisionaianeiigeiia 30

ee 2, 20

es Fe Pe erccennsserssescncececsteenincemmentemememenmmant 2

Se i. Be Fe Pe rccnsscesermecsrssscmnsensinesnemtienmmmnennens 39

EE oR Ee 2

EE 3, 38, 39, 40

is Oe eretsreteeseemnnenmsimmnnmnmmnenmmninantn 14

ee 37

Alternative Motors Fuel Act of 1988, Pub. L. No.

100-494, 102 Stat. 2441 (1988)..........ccccsessererenreeeeeeenees 36

Energy Policy Act of 1992, Pub. L. No. 102-486, 106

SOR, STFS CRIED wxecsersssvsccesssnssessnneneenevsncsssssvssnossvesssssoeess 36

Food, Agriculture, Conservation, and Trade Act of

1990Title XXIV, Pub. L. No. 101-624, 104 Stat.

SIT, GS DOSe BOTS (IGG O) ccercescccsessccecssssecnscensncssesensnenes 36

Global Change Research Act of 1990, 15 U.S.C.

re GOON, Ga cernencetnemmmnmnnennsmmensne 36

National Climate Program Act, Pub. L. No. 95-367,

See es Gre CP trcctenccstennmnenestmneensemnneniionnemnaccessinns 36

Pub. L. 91-604, § 15(a)(1), 84 Stat. 1676, 1710

(1970), reprinted in 1970 US.C.C.AN. 1954,

TIDY centenspentncamnpnteensniggeratemanieeemepsmenmmemeimianennnts 33

Pub. L. No. 101-549, § 821 (1990)..........ccccsscesereresscerersenees 39

Pub. L. No. 90-148, 81 Stat. 485, 499 (1967) ..........ccesesesees 23

Pub. L. No. 91-604, 84 Stat. 1676 & 1690 (1970)................ 23

Other Legislative and Administrative Materials

111 Cong. Rec. H25,061 (Sept. 24, 1965) .........cccsssseeeeeeees 32

116 Cong. Rec. $32,901 (Sept. 21, 1970) .........0000+4 32, 33, 34

136 Cong. Rec. $6479 (Apr. 3, 1990) ...........cccccceecesseeseeeenees 34

138 Cong. Rec. $17,150-01, $17,155 (Oct. 7, 1992)........... 42

1990 Clean Air Act Leg. Hist. 2667 (Reps. Roe and

Seep itsnsesdnsanchcemniveilacitebasiiintdiiediniateintibabiinmneanediieninitaies 40

Average Fuel Economy Standards for Light Trucks

Model Years 2008-2011, 71 Fed. Reg. 17,566

ee i Sa crrnrccnvinssinscsnasntncentnntonscnnerimnaepennemenenenen 37

EPA Office of Policy, Planning, and Evaluation,

Policy Options for Stabilizing Global Climate

(Daniel A. Lashof & Dennis A. Tirpak, eds. 1990) .......21

EPA, A Citizen’s Guide to Chemical Oxidation

REID <ccvensisienspocsveciecisnepesereseemnnstneameninenennsmineemeineiet 28

EPA, Automobiles and Carbon Monoxide (1993)............... 30

Global Climate Protection Act of 1987, Pub. L. No.

100-204, 101 Stat. 1331 (1987).........:ccssseeseesesereserseees 36

H.R. Conf. Rep. No. 101-952 (1990)........cecseceserceereserseenees 40

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. (1977)............ 33

SD, ED, BGR Corea, CARI ncccoscccesscsccsccccsssscsocccnsecssocsooennesens 35

Standards for Exhaust Emissions, Fuel Evaporative

Emissions, & Smoke Emissions Applicable to

1970 & Later Vehicle Engines, 33 Fed. Reg. 8304

SS, Cire ncrcsesccnnstinicntastespiecnasenipiiusinicatideesnnsiiceiptenias 29

Other Authorities

Alex Kirby, BBCNews (May 8, 2003)................:ccceccseseeeeees 13

California Air Resources Board, Resolution 04-28

GD, Tak SI ccncnntttncreseusssessiansiniinscemeneamenmnnsastnnn 15

Concise Oxford English Dictionary 307 (11th ed.

ia tisencocecinssecincndiniehciahianpaindiininiameabainiuaitiinngiaibecasiasasitiiie 20

D. J. Patterson & N. A. Henein, Emissions from

Combustion Engines and Their Control (1972)....... 29, 30

Daniel Velez, No Fault Remediation of MTBE, 26

Wm. & Mary J. Envtl. L. & Policy Rev. 477

(BBA ) ..02-ecersccoseceressccnsneccscsssescsnenesessenecssssessesssssoosecoeseseees 29

Gary E. Marchant, Freezing Carbon Dioxide

Emissions: An Offset Policy for Slowing Global

Warming, 22 Envtl. L. 623 (1992) ......ccccceeverereeeseersereee 31

Gladwin Hill, The Politics of Air Pollution: Public

Interest and Pressure Groups, 10 Ariz. L. Rev. 37

GPU cccsesensesecesecensersnsscentnsnecsvensnvescenssconnesesetenesennneneseooses 23

J. Robert Mondt, Cleaner Cars: The History &

Technology of Emission Control Since the 1960s

STITUTE -nnceplietnsenspciceielininaipbaidesinmndadpsenenenentacdepipunseeuiausends 29, 30

Joseph D. Coons, Air Pollution & Government

Structure, 10 Ariz. L. Rev. 48 (1968) ..........ccceeeees 23, 25

Kyoto Protocol to the United Nations Framework

Convention on Climate Change, art. 3 9] 1 ..........:s2s0s0000 12

Thomas O. McGarity, MTBE: A Precautionary Tale,

28 Harv. Envtl. L. Rev. 281 (2004).........ccccseeseseeereeeeees 30

Webster’s II New College Dictionary 875 (3d ed.

= 4 ~ a

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INTRODUCTION AND COUNTERSTATEMENT

In their zeal to compel the Environmental Protection

Agency (EPA) to regulate “greenhouse gases” for purposes

of affecting the overall composition of the Earth’s atmos-

phere, petitioners urge this Court to upend three settled legal

doctrines. Petitioners first seek to expand the scope of Arti-

cle III standing to encompass suits by litigants whose alleged

injury is speculative and generalized—not imminent or par-

ticularized—and not redressable through judicial action.

Petitioners also disregard the Clean Air Act’s plain language,

seeking through judicial fiat to vest EPA with regulatory au-

thority that Congress has never seen fit to afford it and has

instead expressly granted to other federal agencies. Finally,

petitioners cast aside the requisite judicial deference to

agency decision-making by seeking to persuade this Court to

substitute petitioners’ judgment for that of the agency’s Ad-

ministrator who concluded that, even if Congress had given

EPA authority to regulate greenhouse gas emissions for pur-

poses of affecting the global climate, such regulation would

be inappropriate at this time. The rejection of any of these

three untenable positions is a sufficient basis, standing alone,

to affirm the court of appeals’ decision.

1. The core provisions of the Clean Air Act, Pub. L. No.

88-206, 77 Stat. 393 (1963), 42 U.S.C. § 7401 et seg., have

been on the books for decades. The Act has been heavily

revised over the years, with notable amendments enacted on

several occasions after close congressional scrutiny. The

essence of the Act is to establish a federal framework for

working with state and local governments to prevent and

control “air pollution” through federal mandates designed to

achieve reductions in “air pollutants,” a defined term under

the Act. 42 U.S.C. § 7401(a) & (b).

As its title indicates, the “Clean Air” Act was devised as

an inter-governmental regulatory framework to accomplish

the “cleaning” of the air we breathe—to reduce or eliminate

substances identified as causing “dirty” air. Congress’s use

in the Act of the term “air pollutant” in this ordinary sense is

reinforced by the various substances expressly identified in

_ the Act as air pollutants, such as carbon monoxide, hydrocar-

bons, nitrogen oxides, and particulate matter. See 42 U.S.C.

§ 7602. These are all “air pollutants” that, at excessive lev-

els, cause direct substantial health problems for humans.

For nearly four decades, EPA has carried out the task of

preventing and controlling air pollution through regulatory

actions that help clean the air, making it fit to breathe. EPA

is required to set national ambient air quality standards

(NAAQS) for any “air pollutant” that causes or,contributes to

“air pollution” reasonably anticipated to endanger public

health or welfare. See id. §§ 7408-7409. The federal and

state partnership for satisfying the NAAQS in local air qual-

ity control regions is accomplished through state implemen-

tation plans. See id. § 7410.

Title I of the Clean Air Act focuses on preventing and

controlling “air pollution” emitted by stationary sources

(such as factories and power plants). Title II of the Act, at

issue here, creates a regulatory framework for controlling

“air pollution” from motor vehicles and other mobile sources.

See id. §§ 7521-7590. Mirroring the provisions of Title I,

Title I authorizes EPA’s Administrator to prescribe stan-

dards “applicableto the emission of any air pollutant from

any class or classes of new motor vehicles ... which in his

judgment cause, or contribute to, air pollution which may

reasonably be anticipated to endanger public health or wel-

fare.” See id. § 7521(a)(1).

2. No EPA Administrator has ever understood the

agency to have authority to regulate emissions of carbon di-

oxide (CO2) for purposes of affecting global climate change,

nor has any determined carbon dioxide to be an “air pollut-

ant.” Carbon dioxide is a significant, naturally occurring gas

compound in the Earth’s atmosphere; it is exhaled by every

living, breathing human and animal; and it is essential to life,

serving as an irreplaceable component of plant photosynthe-

sis. For decades, Congress and EPA have encouraged proc-

esses by which harmful pollutants, such as carbon monoxide,

are reduced or eliminated by transforming them into harmless

byproducts, including water vapor and carbon dioxide. The

standard process by which catalytic converters operate to

reduce air pollution from motor vehicles, for example, results

in the production of carbon dioxide and its emission into the

air.

From time to time, Congress has considered issues affect-

ing the atmospheric environment, such as concerns about

ozone depletion in the stratosphere, which are global rather

than local or regional in scope and hence cannot readily be

addressed within the intergovernmental domestic framework

established by the Act. On this issue of upper-atmospheric

ozone, in particular, Congress eventually decided to take

action by making an express delegation of authority to EPA

under a new regulatory framework. See 42 U.S.C. §§ 7671-

76714.

Another broad issue that has been discussed and analyzed

is the proposed regulation of greenhouse gases—such as car-

bon dioxide, water vapor, methane, and nitrous oxide—

emitted from new motor vehicles and engines. As wiih

stratospheric ozone depletion, this issue is global in scope.

And because greenhouse gases tend to dissipate uniformly

throughout the atmosphere, it does not easily or practically

lend itself to localized regulation through the federal-state

partnership established under the Clean Air Act. Nor does

this issue involve the “cleaning” of “dirty” air; rather, it in-

volves a more complex effort to regulate the overall compo-

sition of the Earth’s atmosphere in order to affect global cli-

mate change—a controversial phenomenon that is far from

fully understood or defined, and which remains the subject of

intense debate within the scientific community. See JA 152.

3. This case stems from a rulemaking petition initiated

in 1999 by a group of parties, including a variety of academic

centers and research groups. See JA 5-45. The petition re-

quested that EPA undertake the regulation of greenhouse

gases, including carbon dioxide, emitted by new motor vehi-

cles. The petition alleged that such gases contribute to global

climate change and should be regulated under Title IT of the

Clean Air Act. EPA went through a multi-year process of

soliciting and analyzing comments on the petition and ulti-

mately denied it. EPA determined that it lacked statutory

authority to regulate carbon dioxide and other greenhouse

gases for purposes of addressing global climate change. See

Pet. App. A-59-A-93. EPA noted, in particular, that the only

references in that Act to carbon dioxide or global climate

change were non-regulatory in nature, and concluded that

carbon dioxide and other greenhouse gases do not fit the

statutory definition of “air pollutant[s].” See id. In addition,

EPA noted that Congress was continuing to address the is-

sues relating to global climate change in other legislation and

had rebuffed numerous attempts to grant this new authority

to EPA, including in the Senate’s consideration of the United

Nations Framework Convention on Climate Change. See id.

In none of these congressional debates has it ever been de-

termined that no further legislative action is necessary on the

ground that such regulatory authority was conferred on EPA

nearly four decades ago when Congress first passed the

Clean Air Act.

EPA emphasized that any attempt it might make to regu-

late motor vehicle greenhouse gas emissions would upset and

interfere with the Department of Transportation’s carefully

calibrated, mandatory fuel-economy standards, which are

“the only practical way to reduce tailpipe emissions” of car-

bon dioxide. /d. at A-79. EPA further explained that, even if

it had been granted statutory authority by Congress, it would

exercise its discretion to deny the rulemaking petition be-

cause the Administrator did not believe “it would be either

effective or appropriate for EPA to establish {greenhouse

gas] standards for motor vehicles at this time.” Jd. at A-82.

Relying on a comprehensive report by the National Research

Council, EPA observed that there remains significant scien-

tific uncertainty regarding “the factors that may affect future

climate change and how it should be addressed.” Jd. at A-83.

In light of this uncertainty and the ongoing congressionally

funded studies designed to augment scientific understanding

of global climate change, EPA concluded that it would be

premature to regulate greenhouse gases. See id. at A-85.

EPA also determined that the regulation of greenhouse gas

emissions from motor vehicles would be inappropriate be-

cause such regulation would have the immediate potential to

interfere with the United States’ efforts to persuade develop-

ing nations on the subject; would result in inefficient, piece-

meal regulation; and would exceed the capabilities of present

technology. See id. at A-86-A-87.

4. Petitioners, joined by various state attorneys general,

appealed EPA’s decision to the Court of Appeals for the Dis-

trict of Columbia Circuit, which affirmed in a decision that

resulted in three separate opinions. What stands as the basis

for the judgment of the court is the opinion by Judge

Randolph, who indicated that he was willing to presume that

petitioners met the requirements for standing, which he found

to be intertwined with the merits, see id. at A-8-A-10, and

went on to determine that EPA had properly exercised its

discretion to deny the petition. He stated that he would “as-

sume arguendo that EPA has statutory authority to regulate

greenhouse gases from new motor vehicles,” but upheld

EPA’s denial of the petition because the Administrator has

“considerable discretion” to make policy judgments in deal-

ing with such a petition, which in this case would have re-

quired EPA to “resolve issues ‘on the frontiers of scientific

knowledge.”” Jd. at A-10, A-13-A-15.

Judge Sentelle found that petitioners lacked standing. He

did not address the merits, but joined Judge Randolph in an-

nouncing the judgment of the court. See id. at A-20. In his

opinion, Judge Sentelle found that petitioners had “shown no

harm particularized to themselves,” but only “the sort of gen-

eral harm eschewed as insufficient to make out an Article II]

controversy.” Id. at A-17-A-18.

Judge Tatel, by contrast, found for petitioners on standing

and against EPA on the merits. On standing, he was con-

vinced by declarations in the record submitted by Massachu-

setts suggesting that global warming might cause sea levels

to rise and could eventually lead to the erosion of a portion of

the Commonwealth’s land mass. See id. at A-27. On the

subsidiary standing issues of causation and redressability, he

was willing to accept as adequate a chain of connection,

sketched out in various declarations, between EPA’s poten-

tial actions domestically, poter tial responsive actions by mil-

lions of individuals and consumers, potential eventual effects

of these actions on the global climate, and other actions to be

possibly undertaken in the future by other nations. See id. at

A-27-A-30. On the merits, Judge Tatel concluded that EPA

had the statutory authority to regulate greenhouse gas emis-

sions, and that EPA had abused its discretion by failing to

grant the petition. See id. at A-31-A-56.

The panel denied rehearing, Judge Tatel dissenting; re-

hearing en banc also was denied, with Judges Rogers, Tatel,

and Griffith dissenting. See id. at A-94-A-98.

SUMMARY OF ARGUMENT

1. Petitioners do not meet the irreducible constitutional

minimum requirements for standing to sue. If petitioners are

to avoid injuries from changes in the global climate, which

they believe may occur by the year 2100, a long, tenuous

chain of events beyond the control of either the parties or this

Court must occur over a period of several decades. Even

assuming a significant reduction in greenhouse gases emitted

from new motor vehicles sold in the United States could be

achieved through regulation, it is purely speculative whether

such regulation would spur a large enough reduction in

worldwide greenhouse gases to affect the composition of the

Earth’s atmosphere and avoid the injuries predicted by peti-

tioners. The chain of causation allegedly linking EPA’s ac-

tions to petitioners’ alleged injuries—as affected by hypo-

thetical and unproven assumptions about actions by foreign

governments and other third parties, poorly understood

changes in the atmosphere, and their ultimate effects—is

highly attenuated and uncertain, and thus insufficient to sat-

isfy Article III’s rigorous requirements.

2. Even if petitioners could establish standing, the peti-

tion should be denied because EPA has no authority to regu-

late greenhouse gas emissions for purposes of affecting the

global climate. The text of the Clean Air Act makes plain

that Congress intended it as a measure to “clean” the air of

pollutants, not to alter the overall composition of the Earth’s

atmosphere. Accordingly, Congress has never contemplated

EPA regulation of carbon dioxide emissions from automo-

biles. Quite the opposite is apparent from both the text and

the structure of the Act. Not only has Congress never re-

garded carbon dioxide as an “air pollutant” subject to regula-

tion under the Act, but its only explicit mention of carbon

dioxide is in a single passage that makes clear Congress’s

intention to deny EPA any authority to regulate emissions of

carbon dioxide. Petitioners’ claim is utterly inconsistent with

the agency’s approach to reducing other air pollutants, in

place for nearly four decades, by transforming those impuri-

ties into what are regarded as “harmless by-products,” in-

cluding water vapor and carbon dioxide. Far from being

treated as an “air pollutant,” carbon dioxide has been uni-

formly regarded as a non-pollutant whose production has

been encouraged in order to reduce or eliminate those pollut-

ants specified in the statute and regulations. It is up to Con-

gress to take the step that petitioners are here demanding

from the courts. The Court’s decision in FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000), strongly

reinforces the grounds for that conclusion.

3. Finally, even if Congress had granted EPA expansive

authority to regulate for purposes of affecting the global cli-

mate, EPA properly exercised its broad regulatory discretion

when it concluded that regulation of greenhouse gas emis-

sions from new motor vehicles is inappropriate at this time

Agency decisions refusing to initiate rulemaking proceedings

are singularly ill-suited to judicial review because they in-

volve discretionary determinations about the allocation of

scarce agency resources and the ordering of agency regula-

tory priorities. This Court lacks the administrative expertise

to second-guess EPA’s determination that scientific uncer-

tainty, regulatory inefficiency, technological infeasibility,

and foreign policy considerations militate against the regula-

tion of greenhouse gas emissions. EPA’s inherent regulatory

discretion is reinforced by the broad grant of discretionary

authority explicitly afforded by section 202(a) of the Clean

Air Act. In exercising his “judgment” about whether and

when to make an endangerment finding regarding an “air

pollutant,” the Administrator is at liberty to consider policy

considerations he deems appropriate.

ARGUMENT

I. Petitioners Lack Article III Standing.

Petitioners make only the most casual of efforts to dem-

onstrate standing, even though standing was contested below;

only dissenting Judge Tatel found that petitioners had estab-

lished it; and petitioners have the burden of satisfying this

threshold requirement. See, e.g., FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990); see also Pet. Br. 4-7.

These foundational problems cannot be assumed away. Peti-

tioners’ alleged injuries are based on scientific hypotheses

that “remain incompletely resolved” and will come to pass, if

ever, perhaps by the year 2100. Pet. Br. 2. Moreover, be-

vehicles in this country will not likely have any direct meas-

urable effect on the global climate, any potential injury peti-

tioners may eventually suffer is unlikely to be remedied by a

remand to EPA. Even when supported by reams of untested

declarations, such generalized, speculative allegations are

insufficient to establish Article III standing.

To invoke the Court’s jurisdiction, petitioners must sat-

isfy the three elements of the “irreducible constitutional

minimum of standing.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992). Those requirements are clear. A

plaintiff (or petitioner) must plead and prove an “injury in

fact” that is: (1) “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical”; (2) fairly trace-

able to the defendant’s conduct, not “the result [of] the inde-

pendent action of some third party not before the court”; and

(3) “likely” to be “redressed by a favorable decision.” Jd. at

560-61 (internal quotation marks omitted; brackets in origi-

nal). These requirements become “‘substantially more diffi-

cult’ to establish” where, as here, the parties invoking federal

jurisdiction are not themselves “the object of the government

action or inaction” they are challenging. /d. at 562. Petition-

ers have failed to satisfy these basic requirements.

A. Petitioners’ Alleged Injuries Are Conjectural, Not

Imminent, And Too Generalized.

“Allegations of possible future injury do not satisfy the

requirements of Art. III.” Whitmore v. Arkansas, 495 U.S.

149, 158 (1990). Although a plaintiff need not “await the

consummation of threatened injury” before invoking a fed-

eral court’s jurisdiction, the threatened injury must at least be

“certainly impending.” Babbitt v. United Farm Workers, 442

U.S. 289, 298 (1979) (quoting Pennsylvania v. West Virginia,

262 U.S. 553, 593 (1923)); City of Los Angeles v. Lyons, 461

U.S. 95, 101-02 (1982) (“the ... threat of injury must be both

‘real and immediate,’ not ‘conjectural or hypothetical’”).

Petitioners’ alleged injuries are neither certain nor impend-

ing.

Petitioners’ central allegation is that EPA’s failure to

regulate greenhouse gas emissions from new motor vehicles,

such as cars and light trucks, may cause substantial harm by

the year 2100. Petitioners argue that unless EPA takes ac-

tion, atmospheric concentrations of greenhouse gases “are

likely to increase,” and, as a result, the Earth’s average sur-

face temperature “is projected to increase,” perhaps “2 to

4.5°C over 1990 levels,” “[b]y the end of the century.” JA

230-31. This projected increase in global temperatures, in

turn, leads to the further projection that “by 2100” sea levels

will rise by “about 4 to 35 inches,” and that “the length of the

very warm season will increase,” along with “the frequency

and intensity of intense convective rainfall events.” JA 233-

35.

It is this apocalyptic vision of conditions in the year 2100

upon which petitioners base their allegations of injury. For

instance, the City of Baltimore alleges that global climate

change will result in rising sea levels that may eventually

damage property within the City’s floodplain. See Conrad

Decl. 410. That fear is based on “scientific models” predict-

ing “that in the Chesapeake Bay the associated sea level rise

would be approximately 27 inches by the year 2100.” Id. 48

(emphasis added). Massachusetts’ fears of eventual coastal

inundation are similarly bottomed on climate and sea level

forecasts for the year 2100. See Hoogeboom Decl. { 6; Kir-

shen Decl. 96; Jacqz Decl. 911; see also JA231 (Mac-

Cracken Decl.) (stating that the rate of warming will acceler-

ate over time, putting the most significant temperature in-

creases at the end of the century).

Alleged injuries that might occur (if ever) sentp tes

years in the future are insufficient to establish standing. This

Court’s discussion in Whitmore of its decision in United

States v. SCRAP, 412 U.S. 669 (1973), confirms the point.

See 495 U.S. at 158-59. In Whitmore, this Court contrasted

the petitioner’s claim of injury—that the challenged state

court decision could affect his sentencing in the event of a re-

trial—with the injury alleged in SCRAP, which was similarly

premised on improbable contingencies and “surely went to

the very outer limit of the law.” Jd. at 159. This Court dis-

tinguished SCRAP on the ground that the SCRAP litigants

had alleged harms that “would befall its members imminently

if the ICC orders were not reversed,” while Whitmore could

not make “a similar claim of immediate harm.” Jd. The

Court concluded that the failure to demonstrate “that the

string of occurrences alleged would happen immediately”

precluded a finding that Whitmore’s allegation of injury was

sufficiently “real and immediate” to confer standing. /d. So

too here. “Although ‘imminence’ is concededly a somewhat

elastic concept,” it is “stretched beyond the breaking point,”

when a plaintiff alleges only an injury “at some indefinite

future time.” Lujan, 504 U.S. at 565 n.2.

The lack of imminence is compounded by the highly

generalized nature of the alleged injury. As Judge Sentelle

correctly noted, the “phenomenon known as ‘global warm-

ing’ ... is harmful to humanity at large.” Pet. App. A-18.

Petitioners therefore “have alleged and shown no harm par-

ticularized to themselves.” Pet. App. A-17. The requirement

of a particularized injury—an injury that affects the plaintiff

in a “personal and individual way,” Lujan, 504 U.S. at 560

n.l1—is essential to ensuring the proper allocation of power -

between our three branches of government. “Without such

limitations,” whether grounded in Article III or prudential

considerations, “the courts would be called upon to decide

abstract questions of wide public significance even though

other governmental institutions may be more competent to

address the questions and even though judicial intervention

may be unnecessary to protect individual rights.” Warth v.

Seldin, 422 U.S. 490, 500 (1975). Congress has at times

given courts the power to vindicate interests that—absent

such explicit authorization—would be too generalized. See,

e.g., FEC v. Akins, 524 U.S. 11, 22 (1998) (injury-in-fact

requirement satisfied where a statute seeks to protect respon-

dents “from the kind of harm they say they have suffered,

i.e., failing to receive particular information about campaign-

related activities”). But there is no indication Congress in-

tended to cede to the judicial branch—at the instigation of

any person, organization, or government the world over—the

power to address the political issue of global climate change.

As this Court has recognized, such generalized grievances

are “more appropriately addressed in the representative

branches.” Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 12 (2004) (citation and internal quotation marks omit-

ted).

The need to establish the imminence of an injury—even a

particularized one—is especially important where the possi-

bility of its occurrence is heavily contingent upon the con-———

duct of third parties. As even the dissenting opinion in Lujan

recognized, in cases where the “harm turn{s] largely on the

affirmative actions of third parties beyond a plaintiff's con-

trol,” this Court has strictly applied the “imminence” re-

quirement. See 504 U.S. at 592-93 (Blackmun, J., dissent-

ing). This case amply illustrates the wisdom of such a con-

straint onthe exercise of judicial power.

Each of petitioners’ specific allegations of injury—

inundation of coastal property, damage to coastal facilities,

and increased costs for health care and emergency re-

sponse—is grounded in an assumption that, absent EPA

regulation of a small fraction of global emissions (that is,

those from new vehicles in the United States), “atmospheric

concentrations of [greenhouse] gases are likely to increase at

least as much and at least as fast as in recent decades.” JA

230-31 & n.13. This is speculative in the extreme. World-

wide events occurring in the last two years demonstrate how

risky it is for courts to recognize standing based on injuries

that may occur, if at all, in the very distant future. For exam-

ple, the Kyoto Protocol, which came into effect on February

16, 2005, requires ratifying “Annex 1” nations (a group that

includes every nation of the European Union, Russia, and

Canada) to reduce their greenhouse gas emissions by 2012 to

approximately five percent below 1990 levels. See Kyoto

Protocol to the United Nations Framework Convention on

Climate Change, art. 3 § 1. Great Britain has separately

committed to reduce its greenhouse gas emissions to 60 per-

cent of its 1990 levels by 2050. See Alex Kirby, UK ‘will

make bigger greenhouse cuts’, BBCNews, May 8, 2003,

http://news.bbc.co.uk/2/hi/science/nature/3011169.stm. In

the United States, many companies have undertaken to re-

duce emissions on a voluntary basis. See, e.g., EPA, GHG

Reduction Goal Achievers, http://www.epa.gov/climate-

leaders/partners/goalachievers.html (last visited Oct. 22,

2006) (identifying industries in the United States that are

voluntarily reducing greenhouse gas emissions). As for the

future, it simply is not possible to predict, with any degree of

certainty, the changes—whether positive or negative—that

will result from other international, national, or private-sector

actions. This is especially problematic where such predic-

tions must cover conduct that might occur decades from now

and where the actions of other actors could easily render in-

consequential the effects of a decision whether to regulate the

small portion of worldwide emissions at issue here.

In short, because they do not face any imminent injury,

petitioners are forced to rely on predictions of harm decades

in the future, the occurrence of which is largely (if not en-

tirely) dependent on actions other nations take in their own

regulation of greenhouse gas emissions. Petitioners’ hy-

potheses, each of which is the subject of an active scientific

debate, see Amicus Curiae Brief of Climatologists and Scien-

tists Sallie Baliunas, et al. at 5 & 8-9; see also infra, pp. 44-

45, are reduced to conjecture by the inherent uncertainty of

global events that will unfold between now and the time of

the predicted injury. The ultimate terminus of petitioners’

_ speculative chain accordingly cannot be viewed as “certain”

to occur. By prohibiting adjudication of petitioners’ specula-

tive claims of injury, the injury in fact requirement “reduce[s]

the possibility of deciding a case in which no injury would

have occurred at all.” /d.

Perhaps recognizing that their purported injuries are nei-

ther imminent nor concrete, petitioners also now contend that

EPA’s conclusion that carbon dioxide is not a “agent of air

pollution” threatens to preempt the efforts of California and

other States to regulate vehicular greenhouse gas emissions.

See Pet. Br. 6 n.5; see also Br. of State of Ariz., et al., as

Amici Curiae in Supp. of Pet’rs. State regulation of carbon

dioxide from motor vehicles is a subject of pending litigation

in several federal courts and in state court.'! This Court has

held that claims of injury predicated on the outcome of col-

lateral litigation are too conjectural to satisfy Article III. “It

is just not possible for a litigant to prove in advance that the

judicial system will lead to any particular result in his case.”

Whitmore, 495 U.S. at 159-60. This is particularly so in this

instance. The principal challenge to the state regulations in

the cases in the district courts is that they are preempted by

the Energy Policy and Conservation Act, 49 U.S.C. § 32901,

et seq. (EPCA), which gives the National Highway Traffic

Safety Administration authority to set mandatory fuel econ-

omy standards.? Regardless of the status of the state regula-

| See, e.g., Central Valley Chrysler-Jeep, Inc. v. Witherspoon, No.

04-6663 (F.D. Cal.); Green Mountain Chrysler Plymouth Dodge Jeep v.

Balmasse, No. 05-cv302 (D. Vt.); Lincoln Dodge, Inc. v. Sullivan, No.

06-70 (D. R.1.); Fresno Dodge, Inc. v. California Air Resources Board,

No. 04-CECG-03498 (Fresno County Superior Court); General Motors

Corp. v. California Air Resources Board, No. 05~-CECG-02787 (Fresno

County Superior Court).

2 In the case pending in the Eastern District of California, several

petitioners moved to dismiss the challenges to the state greenhouse gas

regulations under EPCA, on the ground that any state regulation that is

lawful under the Clean Air Act could not be preempted under EPCA.

The District Court rejected that argument and determined that the implied

conflict preemption claims under EPCA presented by the specific regula-

tions involved in that case should go to trial. Central Valley Chrysler-

Jeep, Inc. v. Witherspoon, No. 04-6663 (E.D. Cal., Sept. 25, 2006) (Doc.

# 363), slip op. at 16 (“Nothing in the statutory language or the legislative

tions under the Clean Air Act, the state greenhouse gas regu-

lations involved in the pending actions in the district courts

would still be invalid under federal law if those regulations

conflict with the goals and purposes of the federal fuel econ-

omy program—which is an issue that can only be decided on

the merits in the pending actions, where the interplay be-

tween the specific state regulations and the federal fuel econ-

omy program can be determined on a full record.

In any event, it is axiomatic that “standing is to be deter-

mined as of the commencement of suit.” Lujan, 504 U.S. at

570-71 n.5; see also Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826, 830 (1989) (“The existence of federal jurisdic-

tion ordinarily depends on the facts as they exist when the

complaint is filed.”). Petitioners filed their petition for re-

view in the D.C. Circuit on October 23, 2003. See JA 1.

California did not promulgate regulations restricting vehicu-

lar carbon dioxide emissions until September 2004, see

California Air Resources Board, Resolution 04-28 (Sept. 23,

2004), and litigation concerning the validity of those regula-

tions did not ensue until December 2004. Petitioners could

not possibly have faced imminent injury in 2003 due to liti-

gation that was not initiated until December 2004. See

Compl., Cent. Valley Chrysler-Jeep, Inc. (Dec. 7, 2004).

history of the Clean Air Act ... or any other statute before the court indi-

cates Congress’s intent that [approval under the Clean Air Act] would

allow a California regulation to disrupt” the federal fuel economy pro-

gram).

3 None of the cases cited in the amicus brief from the State of Ari-

zona stands for the remarkable proposition that a State has standing to

challenge an agency decision simply because the reasoning of the deci-

sion gives a third party a colorable basis for challenging a State's regula-

tory efforts in a separate proceeding. And other cases explicitly reject

such a notion. See, e.g., Sea-Land Service, Inc. v. Dep't of Transporta-

tion, 137 F.3d 640, 648 (D.C. Cir. 1998) ("mere precedential effect within

Neither category of injury alleged by petitioners is actual

or imminent; each is overly speculative; and the one that

originally formed the basis for petitioners’ challenge is as

generalized as could be imagined. Petitioners have not satis-

fied the injury-in-fact requirement.

B. The Relief Requested By Petitioners Is Unlikely To

Redress Their Alleged Injuries.

Petitioners contend that, “[{a]bsent changes in policy to

reduce greenhouse gas emissions, atmospheric concentrations

of these gases are likely to increase” and they will suffer

grave injuries as a result. JA 230-31. But petitioners’ law-

suit, even if it were successful, is unlikely to result in any

significant reduction in atmospheric concentrations of green-

house gases or to prevent the injuries of which petitioners

complain. It is, at most, a matter of “unadorned speculation”

whether petitioner’s lawsuit will result even in regulations

restricting vehicular emissions of such gases in the United

States. See Simon v. E. Ky. Welfare Rights Org., 426 US.

26, 44 (1976). It is a matter of even greater speculation

whether such regulations, if promulgated, would noticeably

affect any of the climate-related conditions that petitioners

assert as their basis for injury-in-fact. Petitioners, therefore,

do not stand to “‘benefit in a tangible way from the court’s

intervention.” Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 103 n.5 (1998) (quoting Warth, 422 U.S. at 508).

Petitioners’ claim of redressability relies on a chain of in-

ferences too speculative to satisfy Article III’s minimum re-

quirements. Petitioners concede that a favorable judgment in

this Court will do nothing more than send the matter back to

EPA for a determination whether greenhouse gas emissions

from new vehicles endanger public health or welfare. Pet.

an agency is not, alone, enough to create Article III standing, no matter

how foreseeable the future litigation").

Br. 3 (asking this Court “to remand the case to the agency

with directions to apply the correct legal standard to this mat-

ter; that is all.”) Assuming that scientific evidence is suffi-

ciently developed to allow EPA to make such a determina-

tion, petitioners precariously rest their standing claim on a

chain of unsupported suppositions: that EPA will conclude it

is technologically feasible to implement regulations limiting

vehicular greenhouse gas emissions, see 42 U.S.C.

§ 7521(a)(2); that such regulations will spur the development

of technology that otherwise would not have become avail-

able; that such technological advances will lead other coun-

tries to reduce greenhouse gas emissions to the point where

the overall effect on global atmospheric greenhouse gas con-

centrations is great enough to prevent a material rise in sea

levels or other climate-related events; and that greenhouse

gas emissions from other sources around the world will not

offset these salutary effects.

Petitioners offer little reason for the Court to join them in

this speculative leap of faith. Even if it were certain that, on

remand, EPA would promulgate restrictions on greenhouse

gas emissions, it is uncertain whether such restrictions would

result in any appreciable reduction in atmospheric concentra-

tions of greenhouse gases. Such regulations would apply

only to new motor vehicles sold in the United States. The

new vehicles would comprise a mere fraction of the “U.S.

transportation sector” to which petitioners ascribe seven per-

cent of global fossil fuel emissions. JA 238. More impor-

tantly, unlike true “air pollutants”—whose concentrations

and potential impacts are local and regional in nature—

greenhouse gases are dispersed evenly throughout the lower

stratosphere, and those atmospheric concentrations are opti-

mally reduced only through a worldwide reduction in emis-

sions. To bridge this gap, petitioners rely on the single con-

clusory statement in one of their declarations that “{i]f the

U.S. takes steps to reduce motor vehicle emissions, other

countries are very likely to take similar actions regarding

their own motor vehicles using technology developed in re-

sponse to the U.S. program{.}” JA 239.

This Court has recognized that redressability of injury is

most difficult to establish when it “depends on the unfettered

choices made by independent actors not before the courts and

whose exercise of broad and legitimate discretion the courts

cannot presume either to control or to predict.” ASARCO

Inc. v. Kadish, 490-U.S. 605, 615 (1989) (opinion of Ken-

nedy, J.). Petitioners’ optimistic predictions that if the

United States leads, other countries “are very likely” to fol-

low, JA 239, are precisely the type of “unadorned specula-

tion” that is insufficient to confer standing. Simon, 426 U.S.

at 44. That the speculation is packaged in declarations can-

not change the fact that “it is entirely conjectural whether the

non-agency activity that affects [petitioners] will be altered

or affected by the agency activity they seek to achieve.”

Lujan, 504 U.S. at 571. The declarations are simply insuffi-

cient to demonstrate that “relief from the injury [is] ‘likely’

to follow from a favorable decision.” Allen v. Wright, 468

U.S. 737, 751 (1984).

As in Lujan, if this Court were to remand to EPA, it

would be “very much an open question” whether the agency

action petitioners seek is “likely to produce” an outcome that

alleviates their asserted injuries. See 504 U.S. at 568. Be-

cause petitioners’ alleged injuries are conjectural and far

from imminent, and because it is highly speculative whether

any such injuries are likely to be redressed by a favorable

decision, they do not have standing to sue.

II. The Clean Air Act Does Not Authorize EPA To

Regulate Greenhouse Gas Emissions For Purposes

Of Controlling Global Climate Change.

When the language of the Clean Air Act is construed in

proper context and in accord with its ordinary meaning, it is

clear that Congress did not delegate to EPA any authority to

regulate greenhouse gas emissions for purposes of affecting

the overall composition of the Earth’s atmosphere. The phe-

nomenon of global climate change has been repeatedly de-

bated by Congress and authority to regulate in this area ex-

pressly granted to others within the Article II branch.

A. The Text Of The Act Does Not Authorize EPA To

Regulate Greenhouse Gas Emissions For Climate

Change Purposes.

Statutory construction “‘must begin with the language

employed by Congress and the assumption that the ordinary

meaning of that language accurately expresses the legislative

purpose.’” Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246, 252 (2004) (quoting Park ’N Fly, Inc. v.

Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985)). The

words of a statute, moreover, “must be read” in “context and

with a view to their place in the overall statutory scheme.”

Doe v. Chao, 540 U.S. 614, 630 (2004) (quoting Davis v.

Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989)). Words

and phrases should not be interpreted in “isolation” or

strained to the limits of “definitional possibilities.” Dolan v.

USPS, 126 S. Ct. 1252, 1257 (2006). Statutory construction

is a “holistic endeavor” that, at a minimum; “must account

for a statute’s full text, language as well as punctuation,

structure, and subject matter.” United States Nat’l Bank of

Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455

(1993).

1. The Statute’s Plain Language Does Not Au-

thorize EPA Regulation.

Title II of the Clean Air Act authorizes EPA’s Adminis-

trator to regulate “the emission of any air pollutant from ...

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 wel-

fare.” 42 U.S.C. § 7521(a)(1) (emphasis added). The Act

defines “air pollutant” as “any air pollution agent or combi-

nation of such agents, including any physical, chemical, bio-

logical, radioactive (including source material, special nu-

clear material, and byproduct material) substance or matter

which is emitted into or otherwise enters the ambient air.” 42

U.S.C. § 7602(g).

The ordinary meaning of “pollution” is the “/c/ontamin-

ation of air, soil, or water by the discharge of harmful sub-

stances.” Webster’s II New College Dictionary 875 (3d ed.

2005) (emphasis added). Similarly, the ordinary meaning of

“pollutant” is “[s]omething that pollutes, esp. a waste mate-

rial that contaminates air, soil, or water.” Jd. (emphasis

added). In authorizing EPA regulation of “air pollutants,”

Congress vested the agency with authority to implement con-

trols over emissions of chemicals and substances that con-

taminate the air by making it impure or dirty. See 42 U.S.C.

§ 7401(a) & (b) (the Act’s basic purposes are “air pollution

prevention” and “air pollution control”). EPA’s statutory

directive, as the Act’s title demonstrates, is to “clean” the air.

This plain and natural reading of the Act’s terms is rein-

forced by Congress’s reference to an “air pollution agent,”

thereby underscoring its intent to focus on substances that

contaminate the air we breathe, not naturally occurring com-

pounds that are ubiquitous, life-sustaining components of the

Earth’s atmosphere. It is further reinforced by the various

substances expressly identified as pollutants pursuant to sec-

tion 302, such as carbon monoxide, hydrocarbons, nitrogen

oxides, and particulate matter. See 42 U.S.C. § 7602. These

are all “pollutants” that dirty the air and, at excessive levels,

pose substantial health problems for humans.

Carbon dioxide is substantially different. Unlike other

substances EPA has been regulating for over 30 years, carbon

dioxide is not an “air pollutant” in any sense of the word.

Carbon dioxide is exhaled by every living, breathing human.

It is naturally one of the most plentiful compounds in the

atmosphere, it is essential to life, and it cannot be understood

to “contaminate” the air. Cf Concise Oxford English Dic-

tionary 307 (11th ed. 2004) (“contaminate” means “make

(something) impure by exposure to or addition of a poison-

ous or polluting substance”). Without carbon dioxide life

would not be sustainable on Earth, for the planet would be

approximately 30 degrees colder and plants could not engage

in essential photosynthesis. See EPA Office of Policy, Plan-

ning, and Evaluation, Policy Options for Stabilizing Global

Climate 2 (Daniel A. Lashof & Dennis A. Tirpak, eds. 1990)

(noting the greenhouse effect is, “to a great extent, responsi-

ble for making the Earth conducive to life”).

Global climate change—which may result in part from

long-term shifts in the overall composition of the Earth’s

atmosphere—is also not an “air pollution” problem. Green-

house gases such as carbon dioxide and water vapor do not

contaminate the air we breathe; rather, they are an integral

part of a complex, dynamic climate system. Although in-

creased or decreased levels of these naturally occurring com-

pounds may affect global ambient temperatures, that does not

mean that the air is becoming more or less polluted. The

textual provisions of the Clean Air Act, which vest EPA with

authority to promulgate regulations designed to “clean” the

air and make it fit to breathe, cannot be blithely transformed

into an immensely broad mandate to reshape the composition

of the Earth’s atmosphere.

Fighting uphill against the statute’s plain and natural

meaning, petitioners argue that, because section 302(h) lists

“climate” as a relevant “effect{] on welfare,” Congress in-

tended EPA to “address concerns about global climate

change.” Pet. Br. 15. But section 302(h) is a definitional

provision that does not delegate regulatory authority—it

merely describes the types of effects EPA may consider if a

compound is properly classified as an “air pollutant” under

the Act.

Petitioners are thus forced to argue that any “substance or

matter” emitted into the air qualifies as an “air pollutant” that

may be subject to EPA regulation. See Pet. Br. 12-13. In

their. view, because “air pollutant” is defined as “any air pol-

lution agent or combination of such agents, including any

physical, chemical, biological, radioactive ... substance or

matter which is emitted into or otherwise enters the ambient

air,” and because carbon dioxide is a “chemical ... substance

... which ... enters the ambient air,” carbon dioxide is an “air

pollutant” over which EPA has authority to regulate. See id.

In fact, however, the only plausible interpretation of the

Act—an interpretation consistent with the goal of cleaning

the air—is that the “including” phrase in section 302(g) was

intended not to expand the scope of the defined term, “air

pollutant,” but instead to indicate the breadth of substances

that could be combined to create an “agent,” without uncou-

pling this subsidiary term from the restrictions inherent in the

principal term, “air pollutant.” See Deal v. United States,

508 U.S. 129, 132-34 (1993) (the meaning of words must be

drawn from the context in which they are used). A “sub-

stance or matter” must be an “air pollution agent” in order to

meet the definition of “air pollutant” under the Clean Air

Act. Ubiquitous, naturally occurring compounds such as

oxygen, water vapor, and carbon dioxide were not what Con-

gress had in mind.

The glaring flaw in petitioners’ reading of the statute is

that it relies on bare “definitional possibilities,” Dolan, 126

S. Ct. at 1257, not a reasonable inquiry into Congress’s intent

in light of the statute as a whole. See Pet. Br. 12-15. Indeed,

petitioners’ expansive interpretation would lead to the absurd

result that EPA would be required to consider not just carbon

dioxide as an “air pollutant” subject to its regulatory control,

but also other naturally occurring, ubiquitous substances in

the Earth’s atmosphere necessary for life, such as oxygen and

water vapor. See, e.g., Nixon v. Mo. Mun. League, 541 U.S.

125, 138 (2004) (courts should not construe statutes in a

manner that leads to absurd results) (citing United States v.

Am. Trucking Ass'ns, Inc., 310 U.S. 534, 543 (1940)).

Petitioners’ proposed interpretation also violates the car-

dinal “rule against superfluities” in statutory construction.

Hibbs v. Winn, 542 U.S. 88, 101 (2004); KP Permanent

Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,

121 (2004). Under their approach, the words “any air pollu-

tion agent or combination of such agents” are superfluous

because the definition of “air pollutant” would reach exactly

the same universe of emissions with or without that lan-

guage. Moreover, petitioners’ expansive construction is re-

futed by the Act’s 1970 amendments. Before those amend-

ments, section 202 authorized EPA to regulate “the emission

of any kind of substance ... which in his judgment” merited

regulation. Pub. L. No. 90-148, 81 Stat. 485, 499 (1967)

(emphasis added). In 1970, Congress changed “any kind of

substance” to “any air pollutant” and added, in section

202(a), a definition of “air pollutant” that requires such a

substance to be an “agent” of “air pollution.” Pub. L. No. 91-

604, 84 Stat. 1676 & 1690 (1970). As this Court has often

observed, there are few principles of statutory construction

“more compelling than the proposition that Congress does

not intend sub silentio to enact statutory language that it has

earlier discarded.” N.S. v. Cardoza-Fonseca, 480 U.S, 421,

443 (1987).

Given the plain statutory language, it is not surprising

that courts have universally interpreted the Clean Air Act as

tackling the problem of dirty air, not global climate change.

See, e.g., Motor & Equip. Mfrs. Ass'n v. EPA, 627 F.2d 1095,

1117 (D.C. Cir. 1979) (“Congress enacted the Clean Air Act

as an attempt fo improve the quality of the air.”) (emphasis

added); Chrysler Corp. v. EPA, 631 F.2d 865, 869 (D.C. Cir.

1980) (describing carbon dioxide as a “harmless byproduct”).

Commentators at the time reflected this view of the Act as

concemed with cleaning dirty air rather than influencing the

composition of the Earth’s atmosphere. See, e.g., Gladwin

Hill, The Politics of Air Pollution: Public Interest and Pres-

sure Groups, 10 Ariz. L. Rev. 37, 39 (1968) (using the terms

“air pollution” and “smog” interchangeably throughout);

Joseph D. Coons, Air Pollution & Government Structure, 10

Ariz. L. Rev. 48, 52 (1968) (air pollution occurs as the result

of concentrations of localized, ground-level contaminants).

In fact, no case, in almost forty years of history of the Clean

Air Act, supports the view, much less suggests, that the stat-

ute’s measures against “air pollution” were intended to ad-

dress the phenomenon of global climate change.

2. The Statutory Scheme Does Not Contemplate

EPA Regulation.

That Congress did not intend to grant EPA authority to

regulate greenhouse gases for global climate change purposes

is confirmed by reading the statutory text “in its proper con-

text.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50,

60 (2004).

The Clean Air Act establishes an “intergovernmental

partnership to regulate air quality in the United States.”

Mich. v. EPA, 268 F.3d 1075, 1078 (D.C. Cir. 2001). The

Act is premised on state and local planning that “cleans” the

air by bringing local air contaminants to levels at or below

the federal standards set by EPA. Specifically, the Act

makes EPA responsible for establishing NAAQS, see 42

U.S.C. § 7409, which the States then attain and maintain

through state implementation plans. Jd. § 7407. The premise

of this framework is that each region (and each metropolitan

area) of the country is capable of complying with the

NAAQS by adopting regulatory controls that affect local

ambient levels of the relevant pollutants. See Ariz. Pub. Serv.

Co. v. EPA, 211 F.3d 1280, 1285 (D.C. Cir. 2000). Each

State controls local emissions “as may be necessary” to

achieve attainment in designated, localized non-attainment

areas and, as a result, controls may differ from one such area

to another. 42 U.S.C. § 7410(a)(2)(A); see Union Elec. Co.

v. EPA, 427 U.S. 246, 266 (1976).

All of the substances that Congress (and in one instance

EPA) has listed as criteria pollutants—lead, sulfur dioxide,

oxides of nitrogen, carbon monoxide, particulate matter, and

ozone—present local ambient air pollution problems that can

reasonably be addressed on a /oca/ or state level, or at most a

regional level. The concentrations of each of these sub-

stances vary from place to place, primarily as a result of dif-

ferences in local emissions, local weather, and topography.

Some pollutants, particularly ozone precursors, can transport

from one locality to another and thus raise regional concerns.

But excessive ozone levels are a local air pollution problem

with ambient concentrations differing from locality to local-

ity, resulting in discrete ozone non-attainment areas. The

local nature of the core problems attacked by the Clean Air

Act has been well noted: “Air pollution becomes evident in

specific local areas, rather than on a global basis .... The

term ‘airshed’ has come into use to designate such local ar-

eas. The principal characteristic of an airshed is that con-

taminants do not normally cross its boundaries, in either di-

rection, in such amounts or concentrations as to cause sig-

nificant effects.” Coons, 10 Ariz. L. Rev. at 60.

Global climate change, by contrast, involves the entire

atmosphere’s ability to reflect and retain heat, and is not a

localized phenomenon. Greenhouse gases are not like the

criteria pollutants for which EPA is required to establish

NAAQS because they have relatively long lifetimes, which,

in combination with other atmospheric dynamics, cause them

to mix uniformly in the atmosphere. Levels of carbon diox-

ide and other greenhouse gases “over” any particular locality

are therefore not influenced by local or upwind emissions.

The potential for either adverse or beneficial effects in the

United States from motor vehicle carbon dioxide emissions

depends on complicated interactions of many variables on the

land, in the oceans, and in the atmosphere, occurring around

the world across long periods. Analysis of these effects and

their relation to the atmospheric concentration of carbon di-

oxide in the United States would present EPA with “scien-

tific issues of unprecedented complexity in the NAAQS con-

text.” Pet. App. A-73.

More significantly, EPA must set NAAQS at a level

“requisite to protect the public health” within an “adequate

margin of safety.” 42 U.S.C. § 7409(b)(1). Because atmos-

pheric concentrations of carbon dioxide and other greenhouse

gases are consistent globally, an effective carbon dioxide

NAAQS would require the United States to mitigate effects

for the entire world in order to mitigate effects for itself. If

EPA had authority to set such a standard, it would be unable

to consider the cost to the United States of solving global

warming for the entire world because consideration of cost is

forbidden when EPA establishes a NAAQS. See Whitman vy.

Am. Trucking Ass'ns, 531 U.S. 457, 464 (2001).

Domestic regulation of global climate change is thus im-

practical under the Act. Moreover, such unilateral action

could lead to economic calamities, especially in the face of

rapidly increasing emissions from the developing world. For

example, China is expected to become the greatest emitter of

carbon dioxide by 2015. EPA arguably would need to clas-

sify the entire United States as a carbon dioxide non-

attainment area, triggering obligations to reduce worldwide

carbon dioxide emissions that could cripple the United States

economy. Such use of the NAAQS framework demonstrates

why Congress could not have possibly intended to grant EPA

authority to regulate carbon dioxide as an “air pollutant” un-

der the Act. Cf Brown & Williamson, 529 U.S. at 137 (re-

jecting FDA jurisdiction over cigarettes in part because

“were the FDA to regulate cigarettes and smokeless tobacco,

the Act would require the agency to ban them,” a result Con-

gress had “foreclosed”’).

Petitioners do not meaningfully dispute that regulating

greenhouse gas emissions for purposes of affecting global

climate change cannot be practically accomplished through

the NAAQS program. Instead, they argue that the NAAQS

program in Title | is separate from the mobile source pro-

gram in Title II. See Pet. Br. 27-29. In their view, the Court

should not consider the statutory structure because whether

EPA is required to establish a NAAQS for carbon dioxide

and other greenhouse gases is not “before this Court.” /d. at

29.

In fact, however, section 302’s definition of “air pollut-

ant” is central to the operation of the Clean Air Act as a

whole. The definition of “air pollutant” applies not only to

Title I, which authorizes EPA to regulate motor vehicle

emissions, but also to Title I, which requires EPA to establish

national ambient air quality standards for “criteria pollut-

ants.” 42 U.S ©. § 7408(a)(1)(A). Specifically, Title I of the

Act requires the EPA Administrator to designate as a criteria

pollutant—and establish a NAAQS for—“each air pollutant”

that “cause[s] or contribute[s] to air pollution which may

reasonably be anticipated to endanger public health or wel-

fare.” Jd. (emphasis added)

Petitioners suggest that under Title I, unlike Title I], EPA

may at its discretion not “issue air quality criteria” for air

pollutants deemed to endanger public health and welfare.

Pet. Br. 28 (arguing that Title I and Title II have different

“regulatory triggers”). But that interpretation of the statute

has been rejected. See, e.g., NRDC, Inc. v. Train, 545 F.2d

320, 327-28 (2d Cir. 1976). If a compound emitted from

either a mobile or statutory source qualifies as an “air pollut-

ant” subject to EPA regulation, and if, in the Administrator’s

“judgment,” regulation is appropriate because the pollutant

“may reasonably be anticipated to endanger public health or

welfare,” a NAAQS is “mandatory.” /d.

The language used in Title I is identical in all material re-

spects to the language used in Title II. Compare 42 U.S.C.

§ 7408(a) with 42 U.S.C. § 7521(a)(1). Both convey author-

ity to regulate “air pollutant/s]” as defined in section 302(g),

provided that, in EPA’s judgment, such pollutants “may rea-

sonably be anticipated to endanger public health or welfare.”

Indeed, the two titles require EPA to implement different

sorts of regulations for the same pollutants. Congress in-

cluded only one additional requirement to Title II’s explica-

tion of a criteria pollutant when penning Title I: the pollutant

must “[result] from numerous or diverse mobile or stationary

sources.” 42 U.S.C. § 7408(a)(1)(B). But a motor vehicle,

the emissions of which EPA regulates under section

202(a)(1), constitutes precisely the sort of “numerous” and

“diverse” “mobile ... [source]” contemplated by Congress in

Title 1. Regulatory authority over “air pollutants” under Title

I and Title II is coterminous. Accordingly, if EPA has juris-

diction under section 202(a)(1) to regulate carbon dioxide, it

also has jurisdiction under section 108(a){1), which requires

establishment of a NAAQS for criteria pollutants.

B. Regulatory History Confirms That EPA Lacks

Authority To Regulate Greenhouse Gas Emissions

For Climate Change Purposes.

Not only has carbon dioxide never been defined or regu-

lated as a “pollutant” under the Act, the cons'stent history of

regulation under the Act shows quite the opposite. For over

thirty years, EPA has been identifying other pollutants and

attacking the problems they pose by reducing their quantity, a

process that routinely operates by transforming those pollut-

ants into compounds the agency and courts have regarded as

clean and “harmless by-products.” Chrysler Corp., 631 F.2d

at 869 (catalytic converters produce “two harmless byprod-

ucts, carbon dioxide and water”); EPA, A Citizen’s Guide to

Chemical Oxidation 1 (2001), http://www.epa.gov/tio/down-

load/citizens/oxidation.pdf (“Oxidants help change harmful

chemicals into harmless ones, like water and carbon diox-

ide.”). Principal among these non-pollutant by-products has

been carbon dioxide.

EPA’s consistent treatment of carbon dioxide as a non-

pollutant is seen in its implementation of section

202(a)(4)(B) of the Act, which requires the Administrator to

consider “whether and to what extent the use of any device,

system, or element of design causes, increases, reduces, or

eliminates emissions of any unregulated pollutants.” 42

U.S.C. § 7521(a)(4)(B). EPA is required to undertake this

inquiry to determine if the compliance device creates an un-

reasonable risk of harm, and if so, the device is banned under

section 202(a)(4)(A). This provision was adopted specifi-

cally to regulate catalytic converters. If carbon dioxide were

in fact a pollutant, then EPA has been obligated since 1978 to

consider the harms that carbon dioxide might produce, be-

cause the intended effect of catalytic converters is to reduce

unburned hydrocarbons and carbon monoxide by increasing

carbon dioxide emissions. But EPA has never done so, un-

doubtedly because it has never understood carbon dioxide to

be an “air pollutant.” See, e.g., Zemel v. Rusk, 381 U.S. 1, 11

(1965) (Congress’s “failure to repeal or revise” a statute in

face of a long-standing administrative interpretation has been

found to be “persuasive evidence that that interpretation is

the one intended by Congress”); Haig v. Agee, 453 U.S. 280,

297-98 (1981) (same).

A perfect engine—that is, one able to achieve complete

combustion—will produce only two things: carbon dioxide

and water. See, e.g., D. J. Patterson & N. A. Henein, Emis-

sions from Combustion Engines and Their Control 97

(1972); Daniel Velez, No Fault Remediation of MTBE, 26

Wn. & Mary J. Envtl. L. & Policy Rev. 477, 480-81 (2001).

But engines are not perfect, and some of the hydrocarbons in

gasoline are not fully combusted in the engine. See Patterson

& Henein, supra, at 97; J. Robert Mondt, Cleaner Cars: The

History & Technology of Emission Control Since the 1960s

25 (2000). As a result, in addition to emitting carbon diox-

ide, internal combustion automobiles also eriit unburned

hydrocarbons (known as “volatile organic compounds”),

which are clearly designated as pollutants. See Patterson & -

Henein, supra, at 117-29.

EPA has long regulated the emission of unburned hydro-

carbons from motor vehicles. See Mondt, supra, at 81; see

also Standards for Exhaust Emissions, Fuel Evaporative

Emissions, & Smoke Emissions Applicable to 1970 & Later

Vehicle Engines, 33 Fed. Reg. 8304, 8306 (June 4, 1968).

To comply with these regulations, manufacturers effectively

use two strategies: improve engine technology to achieve

more complete combustion, see, e.g., Patterson & Henein,

supra, at 143, and use catalytic converters, which convert

unburned hydrocarbons to water and carbon dioxide. See

Mondt, supra, at 84; 40 C.F.R. § 85.2122(a)(15){ii)(A) (de-

fining “catalytic converter” as a device that “oxidize[s] hy-

drocarbon (HC) and carbon monoxide (CO) emissions to

carbon dioxide (CO) and water (H20)”). In either of these

events, what would otherwise be emitted as unburned hydro-

carbons is converted instead into carbon dioxide, thus in-

creasing the amount of carbon dioxide emitted by the motor

vehicle.

Automobiles also emit small quantities of carbon monox-

ide if there is inadequate oxygen during combustion or when

combustion does not proceed for long enough to allow the

complete oxidation of all carbon into carbon dioxide. See

Mondt, supra, at 26. Again, there are two ways to address

this impurity: improve combustion within the engine so that

more carbon is fully oxidized into carbon dioxide, and install

catalytic converters that promote the oxidization of carbon

monoxide into carbon dioxide before it leaves the tailpipe.

See, e.g., EPA, Automobiles and Carbon Monoxide 2 (1993),

http://www.epa.gov/otag/consumer/03-co.pdf. Either option

increases the amount of carbon dioxide emitted because car-

bon monoxide, as a pollutant, has successfully been con-

verted into carbon dioxide, a clean and harmless by-product.

Congress and EPA support these techniques in at least

two ways. First, the Clean Air Act requires the use of oxy-

genated gasoline in carbon monoxide non-attainment areas.

See 42 U.S.C. § 7545; see also Exxon Mobil Corp. v. EPA,

217 F.3d 1246 (9th Cir. 2000). Because carbon monoxide is

produced when there is not enough oxygen present during

combustion, “[t]he extra oxygen in oxygenated fuels helps

ensure that the engine produces carbon dioxide instead of

carbon monoxide.” Thomas O. McGarity, MTBE: A Precau-

—

tionary Tale, 28 Harv. Envtl. L. Rev. 281, 284 n.10 (2004).

Second, “[b]ecause lead emissions interfere with the opera-

tion of the catalytic converters” on newer automobiles, EPA

“issued regulations requiring the sale of unleaded gasoline

for the protection of those devices.” Amoco Oil Co. v. EPA,

543 F.2d 270, 271 (D.C. Cir. 1976). Given this robust sup-

port from EPA arid the Congress of several different proc-

esses that turn actual air pollutants into carbon dioxide, it is

unsurprising that commentators have noted that “society has

long encouraged and required automobile manufacturers and

stationary sources to achieve more complete combustion to

produce carbon dioxide rather than carbon monoxide and

other hydrocarbons that are dangerous to human health.”

Gary E. Marchant, Freezing Carbon Dioxide Emissions: An

Offset Policy for Slowing Global Warming, 22 Envtl. L. 623,

662 (1992).

In short, for more than thirty years, EPA has never de-

fined carbon dioxide as a pollutant subject to regulatory con-

trol. To the contrary, for that same lengthy period of regula-

tory practice, the agency has presided over an intricate web

of regulations that have addressed air pollutants from motor

vehicles by invoking and approving industry processes that

transform those impurities into clean and harmless by-

products such as carbon dioxide and water vapor. This long-

standing regulatory practice is dramatically inconsistent with

petitioners’ claim that carbon dioxide must be classified as a

pollutant under the Act without more explicit action from

Congress.

C. The Legislative History Contains No Indication

That Congress Intended EPA To Regulate Green-

house Gas Emissions For Climate Change Pur-

poses.

In addition to the Clean Air Act’s text and structure, the

legislative history further confirms that Congress did not

intend to delegate to EPA far-reaching authority to regulate

greenhouse gases for purposes of addressing the phenomenon

of global climate change.

The Clean Air Act was commonly understood as author-

izing EPA to address the pressing air pollution problems of

the day: smog and smoke pollution. For example, Represen-

tative Helstoski, one of the Act’s key supporters, made re-

marks that were squarely focused on these issues. See 111

Cong. Rec. H25,061, col. 3 & H25,062, col. 1 (Sept. 24,

1965) (citing the example of the New Jersey Turnpike, which

was “compelled to close ... at least 20 times a year” because

of smog). Similarly, when the architect of the 1970 amend-

ments introduced the bill to the Senate for debate, he stated:

“This bill states that all Americans in all parts of the Nation

should have clean air to breathe, air that will have no ad-

verse effects on their health.” 116 Cong. Rec. $32,901 (Sept.

21, 1970) (Statement of Sen. Muskie) (emphasis added).

No reasonable reading of the legislative history leads to

the conclusion that Congress intended to have EPA regulate

carbon dioxide emissions for purposes of affecting the global

climate. To be sure, petitioners have located a few isolated

references to climate dating back to 1965. But these isolated

references deserve no weight because they are “in no way

anchored in the text of the statute.” See Shannon v. United

States, 512 U.S. 573, 583 (1994) (“We are not aware of any

case ... in which we have given authoritative weight to a

single passage of legislative history that is in no way an-

chored in the text of the statute.”) Nor can “a single outlying

statement ... stand against a tide of context and history.”

Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599

(2004). Here, the legislative history presents more of a tsu-

nami than a tide to refute petitioners’ claims about congres-

sional intent, making clear instead that the “common experi-

ence,” “common usage,” and “commonplace conception” of

Congress do not support a conclusion that carbon dioxide is

an air pollutant. Cf. id. at 586-600 (using legislative history

and common usage to interpret the term “age” in the ADEA

to mean only “old age”).

When Congress first enacted section 202, Congressman

Helstoski mentioned that “[{it] has been predicted that by the

year 2000, the amount of atmospheric carbon dioxide may

have increased by about fifty percent; and many believe that

this will have a considerable effect.on the world’s climate.”

111 Cong. Rec. H25,061. But Representative Helstoski’s

brief reference to the potential effects of atmospheric carbon

dioxide on climate was not followed by any indication that he

thought that the pending legislation addressed the problem.

His remarks on the purpose and effect of the bill related only

to the goal of cleaner air. See, e.g., 111 Cong. Rec. at

H25,061-62.

Likewise, although the 1970 amendments added an ex-

press reference to climate, the legislative history does not

support the claim that EPA thereby gained authority to

promulgate regulations designed to address the atmosphere’s

ability to manage radiation from the sun. See Pub. L. 91-604,

§ 15(a)(1), 84 Stat. 1676, 1710 (1970), reprinted in 1970

U.S.C.C.A.N. 1954, 1997. The statements petitioners cite

from the legislative history of the Act’s 1977 amendments do

not even relate to greenhouse gases, but instead concern “ra-

dioactive air pollution from nuclear power plants,” H.R. Rep.

No. 95-294, at 42, 95th Cong., Ist Sess. (1977), and “fine

particulate emissions,” which were already regulated under

Title I of the Act. Jd. at 339. During debate on the amend-

ments, Senator Boggs introduced into the record the Council

on Environmental Quality’s First Annual Report, which ex-

plained that “Air pollution alters climate and may produce

global changes in temperature.... [T]he addition of particu-

lates and carbon dioxide in the atmosphere could have dra-

matic and long-term effects on world climate.” 116 Cong.

Rec. $32,912-16. But no provision was made to regulate this

global phenomenon; to the contrary, the Report suggests the

federal government should take multilateral, cooperative

steps and use alternative measures to address the problem of

global climate change. Jd. at $32,917, col. 2. Furthermore, a

table in the report reinforces the view that carbon dioxide is

not an “air pollutant” because it lists sulfur oxides, hydrocar-

bons, particulates, nitrogen oxides, and carbon monoxide as

pollutants, but not carbon dioxide. Jd. at $32,912, col. 3.

The legislative history behind the 1990 amendments

yields perhaps the clearest statement of all. The amendments

originally included a section that explicitly required EPA to

set carbon dioxide emission standards for motor vehicles.

See 136 Cong. Rec. $6479 (1989). But that section was

omitted from the ultimate legislation. Senator Symms ana-

lyzed the unsuccessful provision as follows:

A carbon dioxide tailpipe standard in the Commit-

tee bill is a clear abuse of the federal motor vehi-

cles emissions standards program, and an unprece-

dented and not-too-covert attempt to usurp an issue

within the jurisdiction of the Senate Commerce

Committee. Carbon dioxide is not an air pollut-

ant—it possesses no physical, chemical, biological,

or radioactive property that presents, in and of it-

self, a threat to public health or welfare. To regu-

late such a substance through an emission standard

under title II of the Clean Air Act flies in the face

of the clear and express purpose of the Act, “to

prevent and control air pollution.

S. Rep. No. 101-228, at 439 (1990), reprinted in 1990

U.S.C.C.A.N. 3385, 3819 (first emphasis added; footnote

omitted). Contrary to petitioners’ stiggestions, see Pet. Br.

21, there is no indication whatever that Congress omitted the

unsuccessful provision because it believed that EPA already

possessed authority under the Clean Air Act to regulate

greenhouse gases.

In fact, since 1990, Congress has considered and rejected

several bills that would have conferred such authority on

EPA. See, e.g., S. 139, 108th Cong. (2003) (“Climate Stew- -

ardship Act of 2003” would have allowed EPA to regulate

greenhouse gas emissions (particularly those of CO2), but

failed in the Senate by a 43-55 vote). The issue of global

climate change has been the subject of dozens of hearings

and briefings before various congressional committees, and

regulatory and non-regulatory legislation has been repeatedly

introduced and re-introduced in Congress. There is no indi-

cation whatsoever that these legislative deliberations oc-

curred in a context of Congress being persuaded that EPA

already had such authority (without exercising it) under ex-

isting law.

In sum, the common understanding and usage evident

from the legislative history confirms that Congress did not

delegate to EPA the authority to regulate emissions of green-

house gases when it enacted and amended the Clean Air Act.

Carbon dioxide was not considered to be an “air pollutant.”

Rather, Congress was focused in the Clean Air Act and its

later amendments on traditional, local air quality concerns

such as smog and acid rain.

D. Petitioners’ Interpretation Of EPA’s Authority

Cannot Be Reconciled With Other Statutes Ad-

dressing Climate Change And Fuel Economy

Standards.

Given the text, structure, and history of the Clean Air

Act, petitioners must seek from Congress the authority they

are trying to obtain from the courts. Under petitioners’ re-

gime, latent authority in the Clean Air Act would give EPA

immense control over the United States’ economy, foreign

policy, and national security. This country would be forced

to make reductions in consumption of fossil fuels that could

devastate the economy and scuttle any leverage for a multi-

lateral agreement on climate change. It is a tenet of statutory

interpretation, as well as constitutionally informed common

sense, that Congress does not “delegate a decision of such

economic and political significance to an agency in so cryptic

a fashion.” Brown & Williamson, 529 U.S. at 160; see MCI

Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994).

In addition, this errant construction cannot be reconciled with

the deference EPA is properly afforded based on its consis-

tent construction of its own governing statutes, over decades,

as not conferring the authority to go beyond cleaning dirty air

to regulating carbon dioxide emissions and the overall com-

position of the Earth’s atmosphere. See United States v.

Mead Corp., 533 U.S. 218, 227-31 (2001); Chevron U.S.A.

Inc. v. NRDC, 467 U.S. 837, 842-45 (1984).

1. Congress Has Addressed Global Climate

Change In Other Statutes.

In the past three decades, Cone tus bd Gree

hearings on the subject of greenhouse gas regulation and has

enacted major legislation specifically addressing the issue.

In fact, Congress has directly addressed global climate

change in no fewer than six other statutes. See, e.g., National

Climate Program Act, Pub. L. No. 95-367, 92 Stat. 601

(1978); Global Climate Protection Act of 1987, Pub. L. No.

100-204, 101 Stat. 1331 (1987); Global Change Research

Act of 1990, 15 U.S.C. § 2931 et seg. (1990); Food, Agricul-

ture, Conservation, and Trade Act of 1990, Title XXIV, Pub.

L. No. 101-624, 104 Stat. 3359, §§ 2401-2412 (1990);

Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat.

2776 (1992); Alternative Motors Fuel Act of 1988, Pub. L.

No. 100-494, 102 Stat. 2441 (1988). Where, as here, two or

more statutes address a specific regulatory issue, “[c]jourts

may properly take into account the later Act when asked to

extend the reach of the earlier Act’s vague language to the

limits which, read literally, the words might permit.” NLRB

v. Drivers, Chauffeurs, Helpers Local Union No. 639, 362

U.S. 274, 291-92 (1960); United States v. Fausto, 484 U.S.

439, 453 (1988) (same). Here, the history of intensive legis-

lative deliberation makes clear that Congress has created a

“distinct regulatory scheme” for the problem of global cli-

mate change that would be usurped if EPA were to regulate

carbon dioxide under the Clean Air Act. Brown & William-

son, 529 U.S. at 144.

In addition, Congress has established a regulatory frame-

work outside of the Clean Air Act that directly addresses

motor vehicle fuel economy and carbon dioxide emissions.

The implication of that statutory framework “precludes any

role for” EPA under the Clean Air Act. Brown & William-

son, 529 U.S. at 144. In particular, in the Energy Policy and

Conservation Act, Congress has set forth a detailed regula-

tory scheme by which the Department of Transportation,

through NHTSA, sets mandatory fuel-economy standards at a

“maximum feasible” level. 49 U.S.C. § 32902(a) (emphasis

added). Compliance with the federal fuel-economy standards

is measured largely by monitoring carbon dioxide emissions,

because there is a direct chemical connection between the

amount of fuel an automobile uses and the amount of carbon

dioxide it emits. Unlike pollutants regulated by the Clean

Air Act, no technology exists to capture or convert carbon

dioxide released from motor vehicles powered by gasoline or

diesel fuel; it can be reduced only by improving fuel econ-

_omy. See Pet. App. A-79.

The regulatory program established by Congress’s en-

actment of EPCA reflects a political compromise that care-

fully sets “maximum feasible” fuel economy standards by

balancing matters of “environmental [policy,] ... engineering

design, safety, national energy policy, international competi-

tiveness and trade.” §S. Rep. No. 101-228, at 441 (1990),

1990 U.S.C.C.A.N. 3385, 3820 (Sen. Symms). This com-

promise marks the place where “opposing social and political

forces have come to rest.” Chrysler Corp. v. Brown, 441

U.S. 281, 313 (1979) (noting in the context of interpreting

the APA that courts must respect legislative balances set by

Congress); see also Average Fuel Economy Standards for

Light Trucks Model Years 2008-2011, 71 Fed. Reg. 17,566,

17,654 (Apr. 6, 2006) (discussing EPCA’s careful balance of

policies). EPA regulation of carbon dioxide motor vehicle

emissions is fundamentally at odds with the EPCA program

and would shatter that delicate political balance. An EPA

standard more stringent than those promulgated under EPCA

“would make mute all laws and regulations dealing with cor-

porate average fuel economy (CAFE)” and render the fuel-

economy standard “a ‘deadwood’ artifact of law with no con-

sequence.” §. Rep. NO. 101-228, at 439 (1990), 1990

U.S.C.C.A.N. 3385, 3820 (Sen. Symms) (discussing failed

section 206 of the 1990 Clean Air Act amendments).

It is unlikely that Congress would provide for the com-

prehensive regulation of motor vehicle fuel economy by

NHTSA without addressing EPA’s purportedly far greater

authority over the subject. Cf Chisom v. Roemer, 501 U.S.

380, 396 n.23 (1991) (“‘In a case where the construction of

legislative language such as this makes so sweeping and so

relatively unorthodox a change as that made here, ... judges

as well as detectives may take into consideration the fact that

a watchdog did not bark in the night.””) (quoting Harrison v.

PPG Indus., Inc., 446 U.S. 578, 602 (1980) (Rehnquist, J.,

dissenting)). This is hardly an “interstitial matter” Congress

would implicitly leave to one agency in such a backhanded

manner after expressly and specifically authorizing another

agency to set standards pursuant to a mandatory balancing

test.

2. When Congress Has Wanted EPA To Address

Global Environmental Issues, It Has Created A

New Statutory Framework.

Congress has previously dealt with emissions issues relat-

ing to non-localized gases that implicate global environ-

mental concerns. For example, when Congress addressed

stratospheric ozone depletion it used an express delegation

under a new regulatory framework: Title VI of the Clean Air

Act, 42 U.S.C. §§ 7671-7671q. The addition of Title V1 to

combat global issues reflects Congress’s views about the

regulatory limits of Titles I and II of the Act.

eZ..2.

Much like carbon dioxide, anthropogenic substances that

deplete stratospheric ozone are emitted around the world and

are very long-lived. Their upper-atmosphere ozone depleting

effects—and the consequences of those effects—occur on a

global scale. The problem does not manifest itself in the

ambient air, but rather in a depletion of the ozone layer some

26,000 to 52,000 feet above sea level, depending on latitude,

and continuing up to approximately 160,000 feet. Because of

the unique chemistry of polar stratospheric clouds and pollut-

ants from countries across the globe, ozone holes have devel-

oped primarily over the poles of the earth, and the ozone

layer continues to deplete on a seasonal basis.

Congress did not regard Titles I or II—or the definitions

in section 302—as having already delegated authority to

EPA to address such global environmental issues. Instead,

Congress added specific provisions on stratospheric ozone

depletion and urged negotiation of international agreements

ensuring global participation to research and regulate strato-

spheric ozone-depleting substances. See 42 U.S.C. §§ 7450-

7459 (repealed 1990). These new provisions did not result in

meaningful action, however, and Title VI ultimately replaced

them in the 1990 amendments, providing that EPA will coor-

dinate with developing countries to implement the Montreal

Protocol, 42 U.S.C. § 7671p(b), and expressly delegating

authority to EPA to regulate specified ozone-depleting sub-

stances, id. § 7671c-d. Importantly, Congress saw Title VI

as “an expansion of existing statutory authorities.” S. Rep.

No. 101-228, at 387 (1990), reprinted in 1990 U.S.C.C.A.N.

3385, 3770 (emphasis added). The same holds for any EPA

regulation of motor vehicle carbon dioxide emissions—

Congress would need to provide the agency with specific

statutory authority.

Petitioners note that the 1990 amendments to the Clean

Air Act contain a few references to carbon dioxide and global

warming generally. See 42 U.S.C. § 7403(g); 42 U.S.C.

§ 767la(e); Pub. L. No. 101-549, § 821 (1990), modifying 42

U.S.C. § 7651k(b) & (c). But in each provision, Congress

expressly refused to grant EPA authority to regulate carbon

dioxide. See 1990 Clean Air Act Leg. Hist. 2667, 2776-78

(Reps. Roe and Smith); Pet. App. A-71-A-72. Each provi-

sion of the 1990 amendments relating to carbon dioxide—

sections 103(g), 602(e), and 821—<alls on EPA not to regu-

late but to develop information concerning global climate

change. Section 103(g) gives the Administrator the authority

to research and implement demonstration programs for air

pollution prevention. This includes creating “nonregulatory”

strategies to control carbon dioxide emissions from stationary

sources. 42 U.S.C. § 7403(g). But section 103(g) expressly

provides that nothing in the subsection “shall be construed to

authorize the imposition on any person of air pollution con-

trol requirements.”

To further emphasize this point, Congress amended sec-

tion 103(g) in conference to include the term “nonregulatory”

to describe the “strategies and technologies” it was intended

to promote. This point is underscored in the House Confer-

ence Report and by the fact that the section repeats the phrase

“nonregulatory strategies” five times. H.R. Conf. Rep. No.

101-952, at 349 (1990), as reprinted in 1990 U.S.C.C.A.N.

3867, 3881; see also 42 U.S.C. § 7671a(e) (directing EPA to

determine the “global warming potential” of substances that

deplete stratospheric ozone, but containing language similar

to section 103(g) stating that it “shall not be construed to be

the basis of any additional regulation under this Chapter”).

These specific reservations of the power to regulate, carefully

added to provisions that instead direct EPA to research and

implement demonstration programs, would make no sense if

Congress had implicitly given EPA immense and largely

unrestricted authority to regulate the composition of the

Earth’s atmosphere. Cf. Dir. of Revenue v. CoBank ACB,

$31 U.S. 316, 324 (2001) (rejecting interpretation that would

assume “Congress made a radical—but entirely implicit—

change” in the statutory scheme).

3. Congress Has Declined To Delegate EPA Au-

thority To Regulate Carbon Dioxide Emissions

From Motor Vehicles.

The decision in Brown & Williamson is instructive here.

There the Court addressed FDA’s conclusion that tobacco

products constituted “drug delivery devices” and therefore

fell within FDA’s regulatory jurisdiction. 529 U.S. at 127.

Despite language in the statute that arguably supported

FDA’s position, this Court found that “Congress has directly

spoken to the issue” and “precluded the FDA’s jurisdiction to

regulate tobacco products.” /d. at 133. Relying on the logi-

cal implications of FDA regulation and Congress’s tobacco

policy—as expressed in other tobacco regulations and re-

peated refusals to explicitly grant FDA authority—the Court

found that Congress had not intended FDA regulation. Jd.

133-59. In the end, the Court emphasized that it must “be

guided to a degree by common sense as to the manner in

which Congress is likely to delegate a policy decision of such

economic and political magnitude to an administrative

agency.” Jd. at 133.

To avoid this Court’s conclusion that Congress does not

cryptically delegate important issues to agencies, petitioners

have argued that because FDA had repeatedly expressed the

view it did not have jurisdiction, whereas EPA was silent

until the Clinton Administration, Brown & Williamson does

not apply. This Court, however, found that point to be “not

crucial” and not “determinative,” using it only to “bolster{]

the conclusion” that the separate regulatory regime was based

on the lack of FDA authority. /d at 157.

Petitioners also stress the Court’s finding in Brown &

Williamson that FDA regulation would require a total ban on

tobacco, whereas EPA regulation of greenhouse gases would

only result in new emission standards. Yet such regulation

would so dramatically expand EPA’s authority and have such

far-reaching consequences that Congress would not adopt it

obliquely. Moreover, petitioners never come to grips with

the potentially devastating effects of such regulation for the

U.S. economy. The production of energy from fossil fuels—

the power source for nearly all modes of transportation and

about 85 percent of domestic energy—directly results in car-

bon dioxide emissions. In fact, when considering the United

Nations Framework Convention on Climate Change, the

Senate found that reductions in carbon dioxide emissions

could potentially “cost American workers hundreds of thou-

sands of their jobs and cost the economy more than $90 bil-

lion of gross national product” from 1990-2000. 138 Cong.

Rec. $17,150-01, $17,155 (Oct. 7, 1992) (Statement of Sen.

Craig).

In addition to its economic impact, any regulation of car-

bon dioxide emissions by EPA has important implications for

American foreign policy. Global climate change must be

addressed multilaterally. In more than a decade of debate on

global climate change, Congress has recognized that coordi-

nated international action, among developing and developed

countries, is needed to address the problem adequately. In

fact, finding that EPA has implied authority under the Clean

Air Act to regulate greenhouse gas emissions would conflict

directly with the Department of State’s express statutory au-

thority to negotiate a global solution to this problem. See

Global Climate Protection Act of 1987, 15 U.S.C. § 2901

(historical and statutory notes).

_ This is therefore one of those “extraordinary cases” in

which “there may be reason to hesitate before concluding

that Congress has intended such an implicit delegation.”

Brown & Williamson, 529 U.S. at 159. In view of the com-

plexity of global climate change and the host of interests that

any workable solution must accommodate, it is absurd to

presume that Congress implicitly delegated authority to EPA,

more than thirty years ago, to address an issue that Congress

has struggled with ever since. In sum, Congress to date has

declined to give EPA the authority to regulate carbon diox-

ide, and the Court should respect that decision.

Ill. EPA Properly Exercised Its Broad Discretion In De-

clining To Make An Endangerment Finding.

The Clean Air Act does not authorize EPA to regulate

carbon dioxide, water vapor, or other greenhouse gases emit-

ted by motor vehicles for purposes of affecting global climate

change. The Court therefore need not reach the question

whether EPA, as an alternate basis for its decision, properly

exercised its broad discretion not to engage in rulemaking.

But if this Court were to reach that issue, petitioners still

would not prevail, because their argument disregards the

broad—and effectively nonreviewable—discretion that EPA

enjoys under the statute in making that type of decision.

A. EPA Possesses Broad Inherent Discretion When

Determining Whether To Initiate Rulemaking

Proceedings.

Agencies have substantia! discretion when determining

whether to initiate proceedings in response to a petition for

rulemaking. EPA’s decision not to commence regulation of

greenhouse gas emissions is a quintessential and eminently

reasonable example of such discretionary decision-making.

Because agencies have finite financial resources and lim-

ited human capital, they cannot possibly initiate rulemaking

proceedings in response to every petition—meritorious or

otherwise—they receive. As this Court recognized in the

analogous context of an agency’s refusal to initiate enforce-

ment proceedings, agencies must prioritize their regulatory

efforts based on “a complicated balancing of a number of

factors” that are peculiarly within the agency’s expertise.

Heckler v. Chaney, 470 U.S. 821, 831 (1985). Because an

agency must assess whether it “is likely to succeed if it acts,”

whether the “particular enforcement action requested best fits

the agency’s overall policies,” and “whether the agency has

enough resources to undertake the action at all,” an agency

“is far better equipped” than a court “to deal with the many

variables involved in the proper ordering of its priorities.”

Id. at 831-32. This Court has therefore concluded that

agency decisions not to commence enforcement proceedings

are presumptively nonreviewable. Jd. at 837; see also Lin-

coln v. Vigil, 508 U.S. 182, 193 (1993) (an agency’s alloca-

tion of funds from a lump-sum appropriation is committed to

agency discretion and thus nonreviewable).

This Court has never expressly considered whether the

denial of a petition for rulemaking is—like the refusal to ini-

tiate an enforcement action—presumptively nonreviewable.

Heckler, 470 U.S. at 825 n.2 (noting that the question was

not presented). Heckler and its progeny, however, demon-

strate that, at a minimum, agencies possess significant discre-

tion in determining whether to commence rulemaking pro-

ceedings because such decisions touch on delicate issues—

including allocating scarce agency resources and establishing

administrative priorities—that generally cannot be reviewed

under judicially manageable standards. See WWHT, Inc. v.

FCC, 656 F.2d 807, 818 (D.C. Cir. 1981) (“only in the rarest

and most compelling of circumstances” will a court “overturn

an agency judgment not to institute a rulemaking”). As

courts have recognized, “an agency’s refusal to initiate a

rulemaking is evaluated with deference so broad as to make

the process akin to non-reviewability.” Nat'l Mining Ass'n

v. DOI, 70 F.3d 1345, 1352 (D.C. Cir. 1995) (internal quota-

tion marks and citations omitted).

Here, EPA relied primarily on the uncertainty in the sci-

entific evidence to conclude that, even if Congress had

granted it broad authority to regulate the global climate, it

would be inappropriate to begin regulating vehicular green-

house gas emissions. Notwithstanding petitioners’ assertions

that a link exists between anthropogenic greenhouse gas

emissions and long-term changes in climate, EPA’s decision

correctly—and prudentiy—observed that there is much that

scientists do not understand about the causal connection be-

tween greenhouse gases and the Earth’s surface temperatures.

As the National Research Council (NRC) concluded in a

2001 report, Climate Change Science: An Analysis of Some

Key Questions, it is impossible to “rule out that some signifi-

cant part of” the climate change observed over recent dec-

ades is a “reflection of natural variability” in the Earth’s tem-

perature. JA 151. In light of the “considerable uncertainty in

current understanding of how the climate system varies natu-

rally and reacts to emissions of greenhouse gases and aero-

sols,” the NRC cautioned that “current estimates of the mag-

nitude of future warming should be regarded as tentative and

subject to future adjustments (either upward or downward).”

JA 152; see also Pet. App. A-70 (quoting the conclusion of

the United Nations Framework Convention on Climate

Change that “there are many uncertainties in predictions of

climate change, particularly with regard to the timing, magni-

tude and regional patterns thereof’). And the NRC ulti-

mately concluded that given “the large and still uncertain

level of natural variability inherent in the climate record ... a

causal linkage between the buildup of greenhouse gases in

the atmosphere and the observed climate changes during the

20th century cannot be unequivocally established.” JA 193.

Even today, the state of the science is far from certain. See

Amicus Curiae Brief of Climatologists and Scientists Sallie

Baliunas, et al. at 5 (“claims in the [amicus brief filed in sup-

port of petitioners] that harm from carbon dioxide emissions

is ‘virtually certain,’” and “that new studies support that cer-

tainty, are simply incorrect”); see also id. at 8-9 (the atmos-

phere is a “complicated system,” and predictions about the

effect of increased emissions ignore the “highly significant”

effect of “substantial natural negative feedback mechanisms”

that could moderate any warming and “may even be

strengthened by higher greenhouse gas concentrations”).

These scientific uncertainties are compounded when the

focus properly shifts from petitioners’ broad claims concern-

ing the potential link between worldwide greenhouse gas

emissions and global climate change to the narrow issue of

the effect that emissions from new motor vehicles or new

motor vehicle engines within the United States might have on

the global climate. Because the entire U.S. transportation

sector accounts for only seven percerx of global fossil fuel

emissions, JA 238, EPA was justifiably wary of the scientific

link between emissions from a portion of that sector and in-

jury to the public welfare from global climate change.

This is not to say that there is a complete absence of sci-

entific evidence suggesting that anthropogenic greenhouse

gas emissions are causally linked to global warming. See,

e.g., JA 151, 154. But it was reasonable for EPA’s environ-

mental experts to conclude that, ever if carbon dioxide were

an “air pollutant” subject to EPA regulation, scientific uncer-

tainty militates against regulation, at least unti] EPA has the

benefit of ongoing, congressionally funded research on

global climate change. The soundness of EPA’s conclusion

is bolstered by the federal voluntary emissions reduction pro-

grams that are already measurably reducing greenhouse gas

output in the United States. See Pet. App. A-89, A-90. In

these circumstances, there is simply no basis for this Court to

displace EPA’s decision to focus its finite regulatory re-

sources, at least for now, on environmental issues that are

free of scientific doubt and not already being addressed

through other remedial measures.

Apart from the evidence of scientific uncertainty, EPA

also identified several other reasons why, even if Congress

had granted it statutory authority to regulate greenhouse

gases, it would have denied the rulemaking petition. These

reasons included (i) the inefficiency of regulating greenhouse

gas emissions from new motor vehicles but not from other

emissions sources; (ii) concerns that other countries would

increase their greenhouse gas output in response to efforts by

the United States to limit emissions; and (iii) the lack of

available technology to control emissions of greenhouse

gases other than carbon dioxide. See Pet. App. A-85-A-87.

These additional reasons identified by EPA suggest that the

agency would nor succeed if it attempted to reduce green-

Sa ee

house gas output through regulations directed at emissions

from new motor vehicles. See Heckler, 470 U.S. at 831 (an

agency should consider whether it “is likely to succeed if it

acts”). EPA thus made the eminently reasonable determina-

tion that, even if carbon dioxide, water vapor, and other

greenhouse gases were “air pollutants” within the meaning of

the Clean Air Act, EPA’s limited “resources are best spent”

on other regulatory priorities. /d. It would be a profound

encroachment upon the agency’s well-settled regulatory pre-

rogatives for this Court to disturb that decision.

B. Section 202(a) Affords EPA Discretion To Decline

To Regulate Based On Policy Considerations That

It Deems Relevant.

EPA’s decision also finds support in the language of sec-

tion 202(a). That statutory provision explicitly grants EPA

broad regulatory discretion, reinforcing the soundness of

EPA’s determination that, even if Congress had granted it

statutory authority, it would not begin to regulate greenhouse

gas emissions at this time.

This Court’s cases make clear that an agency authorized

to make discretionary determinations may rely on any con-

siderations it deems relevant if the pertinent statute does not

expressly preclude reliance on such considerations or set

forth an exhaustive list of relevant factors. See, e.g., INS v.

Yueh-Shaio Yang, 519 U.S. 26, 30 (1996) (there are “no limi-

tations” on factors the Attorney General may consider in de-

termining whether to grant a discretionary waiver of deporta-

tion); Lopez v. Davis, 531 U.S. 230, 244 (2001) (Bureau of

Prisons may deny sentence reductions to all offenders whose

crimes involved firearm possession because the statute does

not prohibit the agency from relying on discretionary fac-

tors). EPA thus enjoys broad discretion when determining

whether or when to make an “endangerment” determination

under section 202(a), which requires the Administrator to

promulgate emissions standards for any “air pollutants” that

“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) (emphasis added).‘

Petitioners appear to acknowledge that scientific uncer-

tainty is an appropriate ground upon which EPA may rest its

_ refusal to make an endangerment determination, see Pet. Br.

41, but they argue that EPA erred when it pointed to concerns

about inefficient, piecemeal regulation; possible serious for-

eign policy repercussions; and the technological infeasibility

of regulating greenhouse gas emissions. In particular, peti-

tioners argue that the word “shall” in section 202(a) is an

implicit limitation on the types of factors the Administrator

may consider. But that word imposes no such limitations

because the statute requires the Administrator to exercise “his

judgment.” 42 U.S.C. § 7521(a). It has long been held that

such language is “an express provision for administrative

discretion” precisely because the Administrator “shall” take

certain action after coming to a judgment. See Ethyl Corp. v.

EPA, 541 F.2d 1, 20 n.37 (D.C. Cir. 1976) (en banc) (equat-

ing the discretion provided by a statute using the term “may”-

with that afforded by the use of the term “judgment” in sec-

tion 202(a)(1)). That interpretation is entitled to conclusive

4 See also Webster v. Doe, 486 U.S. 592, 600 (1988) (holding that a

statute authorizing the Director of the CIA to terminate an employee

whenever he “shall deem such termination necessary or advisable in the

interests of the United States” foreclosed judicial review of nonconstitu-

tional issues because the statute “fairly exudes deference to the Director”

and there was no practical means for a court to evaluate the soundness of

the Director’s discretionary determination about national interests). Like

the statute in Webster, nothing in section 202(a) provides courts with a

basis for second-guessing EPA’s inherently discretionary judgment not to

regulate greenhouse gas emissions at this time. In contrast with EPA

regulation of stratospheric ozone levels, which must comply with a de-

tailed statutory framework, 42 U.S.C. §§ 7671-7671q, there is no green-

house-gas-specific statutory regime to which a court could look when

trying to evaluate the propriety of EPA’s decision.

weight because Congress has amended the Act—and section

202 in particular—after Ethyl without modifying the discre-

tionary “in his judgment” language. See Lorillard v. Pons,

434 U.S. 575, 580 (1978) (“Congress is presumed to be

aware of an administrative or judicial interpretation of a stat-

ute and to adopt that interpretation when it re-enacts a statute

without change”). Moreover, to the extent that the clear lan-

guage of section 202(a) is considered ambiguous, EPA’s

conclusion that section 202(a) allows it to take regulatory

efficiency, foreign policy, and technological limitations into

account is a reasonable interpretation of the statute entitled to

substantial judicial deference. See Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984).

Neither Whitman v. American Trucking Ass'ns, 531 U.S.

457 (2001), nor Union Electric Co. v. EPA, 427 U.S. 246

(1976), upon which petitioners rely, is to the contrary. In

Whitman, the Court held that EPA may not take cost consid-

erations into account when setting NAAQS under section

109(b)(1) because the Clean Air Act expressly mandates that

NAAQS be based on the “information about health effects

contained in the technical ‘criteria’ documents compiled un-

der § 108(a)(2).” Whitman, 531 US. at 465. Similarly, in

Union Electric, the Court held that section 110 “provides no

basis for the Administrator ever to reject a state implementa-

tion plan on the ground that it is economically or technologi-

cally infeasible” because “the States may submit implemen-

tation plans more stringent than federal law requires” and

“the Administrator must approve such plans if they meet the

minimum requirements of § 110(a)(2)[.]” 427 U.S. at 265.

Unlike sections 109(b)(1) and 110, which significantly con-

strain EPA’s discretion by limiting the considerations the

agency may take into account when establishing NAAQS or

approving state implementation plans, section 202(a) does

not limit the factors EPA may consider when exercising its

own judgment to decide whether an endangerment determi-

nation is appropriate.

In order for petitioners to prevail in this case, this Court

must disregard well-established limits on Article III standing,

overturn Congress’s decades-long determination not to grant

EPA regulatory authority over greenhouse gases, and dis-

place EPA’s determination that, even if Congress had granted

it the requisite authority, such regulation would be inappro-

priate at this time. This Court should reject petitioners’ invi-

tation to disavow established standing principles and to sec-

ond-guess the political branches’ policies regarding the com-

plex issue of global climate change. The politically sensitive

and scientifically uncertain decision whether to mandate fed-

eral regulation of vehicular greenhouse gas emissions prop-

erly rests with Congress. This Court should not—and need

not— inject itself into that ongoing debate.

CONCLUSION

The Court of Appeals’ decision should be affirmed.

Respectfully submitted,

KENNETH W. STARR THEODORE B. OLSON

STUART A.C. DRAKE Counsel of Record

ANDREW B. CLUBOK MIGUEL A. ESTRADA

ASHLEY C. PARRISH DAVID DEBOLD

DEREK S. BENTSEN MATTHEW D. MCGILL

AMIR TAYRANI

KIRKLAND & ELLis LLP

655 Fifteenth Street, N.W GIBSON, DUNN & CRUTCHER LLP

Washington, D.C. 20005 1050 Connecticut Avenue, N.W.

(202) 879-5000 Washington, D.C. 20036

(202) 955-8500

RICHARD A. CORDRAY

4900 Grove City Road

Grove City, Ohio 48123

Attorneys for Respondents

October 24, 2006

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.