Respondents Brief — Massachusetts v. EPA

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No. 05-1120 OCT 24 2006

In The

Supreme Court of the Anited States

COMMONWEALTH OF MASSACHUSETTS, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For

The District Of Columbia Circuit

BRIEF OF RESPONDENT COz

LITIGATION GROUP

RUSSELL S. FRYE

FRYELAW PLLC

3050 K Street, N.W.

Suite 400

Washington, DC 20007

Telephone: (202) 572-8267

Counsel of Record

{Additional Counsel Listed On Signature Page]

COCKLE LAW BRIEF PRINTING CO (400) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTRODUCTORY STATEMENT ............::cscecesseeeseneeees 1

SUMMARY OF ARGUMENT ..............ccccsseeseseseesereeseeees 4

oe No laamiianedediein 6

1. Petitioners Have Not Demonstrated that

II.

III.

Unambiguous Language of the Clean Air Act

Gives EPA Authority To Regulate Emissions

for Purposes of Mitigating Global Climate

EPA’s Interpretation of Its Limited CAA

Authority To Address Global Climate Change

Is Reasonable and Consistent with the

Remainder of the Statute ................cccceseeeereeeeeees

A. Incompatibility Between Global Climate

Change and Clean Air Act Regulatory

PID enncrssnccecteiainteneninsennsninctinmnisiianeniende

B. The Adverse Economic and Political

Consequences of Forcing Global Climate

Change into the Clean Air Act Regulatory

Framework Would Be Enormous ................

Congress Has Yet To Enact the Regulatory

Program Petitioners Ask this Court To Find.....

CORI LA TEIOIIN occ csccceveccesssecercecscreccvccscnssccstncesssesescsosesscs

TABLE OF AUTHORITIES

Page

FEDERAL CASES

American Tobacco Co. v. Patterson, 456 U.S. 63

CITI, <5 sccisinehenianbeccceelaneandinaniesnieenneniaaineiiaatianaenimeiutees 23

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984).........cccssssesssssreneeeeeees 6, 9, 13

Davis v. Michigan Dept. of Treasury, 489 US. 803

FDA v. Brown & Williamson Tobacco Corp., 529

FB neon 6, 15, 25, 38

Erlenbaugh v. United States, 409 U.S. 239 (1972)........... 38

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961) ........... 15

Ratzlaf v. United States, 510 U.S. 135 (1994) .........:secceee 9

Shapiro v. United States, 335 U.S. 1 (1948)... 10

Tennessee Valley Authority v. Hill, 437 U.S. 153

(DTI a cccccccccnsecccncesnsccnssccscsenccenesecesonnssscsensscagecoosequeses 10, 23

Train v. Natural Resources Defense Council, 421

C.D, GB (IDI) q.ccccccccccccccscccccnsccsvcsscoscccosecssccsnsevscsscosss 11, 16

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ....10, 16, 22

United States v. American Trucking Ass’ns, 310

UT... BSE (1DED).....cccccocccccscccseccscocescresscccscossoscscsscesssencessoes 15

United States v. Nordic Village, Inc., 503 U.S. 30

(RBBB) ...ccccccccccscccccsccassccesecosccsssosecsessosonosecsssosscssenssosssooooss 12

Whitman v. American Trucking Ass’ns, 531 US.

BIE CIID occceccvvessessecccnccsonsvereresnesssncessctncsenemn 15, 16, 18, 38

ili

TABLE OF AUTHORITIES — Continued

Page

DOCKETED CASES

Coke Oven Environmental Task Force v. U.S. EPA,

D.C. Cir. No. 06-1131 (and consolidated cases)

CN co ccccvessssssncscesosonetenensitenitincmnmanetmnsininenanenenseuton 29

Commonwealth of Massachusetts, et al. v. Horinko,

D. Conn. No. 3:03CV984 (PCD) (dismissed)...............+ 29

STATUTES

Global Climate Change Prevention Act of 1990, 7

re Oe res OE BI, censesnenscensoscenisececeztesensenssenseonsvent 33, 36

OF eas ae I cnikcsncsiciiicnicsniattiieimnaidddiounetaiiniiniianneineiain 36

National Climate Program Act (1978), 15 U.S.C.

Fs OO BI accccscsnnnersscescssnsernsentstenseunspestnessnetmtntpiennetons 33

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

i SEITE SITE ccccesescaninssoevdniesindendseenesnaninmnetnenniesseneneseiannienin 33

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

BIER, C0 GO secs ccc cscopinscenesorsvevseretetnsecsvnvvesscssesseennseoes 33, 36

| ce een eee 36

Clean Air Act, 42 U.S.C. §§ 7401, et seg. (“CAA”)......passim

§ 101(a)(3), 42 U.S.C. § T401(aX3) «00... eee ce eee 18

DR, Ge By BH PI vdncccecevvncectssesessscenscesesens ll

§ 103(g), 42 U.S.C. § 7403(g)............ccccccrrrseseee 35, 36

§ 103(gX 1), 42 U.S.C. § 740362) 1) «0... eeeeeeeeeeeeees 36

a Rs SE EE nctnscednenseinintanniannmanenmaiensonenl 1l

§ 107(d)( 1 MA), 42 U.S.C. § 7407(d)(1 {AD().......... 18

TABLE OF AUTHORITIES — Continued

Page

§ 108, 42 U.S.C. § TA0B.ccececcccccccssssssssessscsecesssessessveses il

§ 108(a)(1), 42 U.S.C. § 7408(a)(1) scssccecscccecessese 16,17

§ 108(a)(1)(A), 42 U.S.C. § 7408(a)(1)(A)cececssssscsesee 28

§ 108(aX(1)(B), 42 U.S.C. § 7408(a)(1)(B).essseccsseeoore 10

§ 108(a)(2), 42 U.S.C. § 7408(a)(2) ..ceccesccceeeeeseen 10, 17

§ 109, 42 U.S.C. § 7409. .ccccccccscccssssssvessesessesenssnen 11,17

§ 109(b)(1), 42 U.S.C. § T409(D\L) ccccececcecececscoee 17, 21

§ 109(b)(2), 42 U.S.C. § 7409(b)(2) .cececccceccccssssssseeee 10

§ 110, 42 U.S.C. § 7410 ..cccccececccccccccssscsesceecccesencensene 18-

§ 110(c)(1), 42 U.S.C. § 7410(C)(1) csececessecescessccssessen 18

§ 110(m), 42 U.S.C. § 7410(m)....ccsscscssesssececcsceeseseee 19

§ 111, 42 U.S.C. § TALL .ccccececcccccscsssssssceesesecessesen 29, 30

§ 111(a)(1), 42 U.S.C. § 7411 (a1) cccccccccccsseseseveceeeees 20

§ 111(aX3), 42 U.S.C. § 7411(aN(B) ccccccccccscssseseeee 19, 20

§ 111(a)(7), 42 U.S.C. § 7411(aN7) ccccccccccsssssseceeeeeee 20

§ 111(aX'7XB), 42 U.S.C. § 7411(a)(7)(B) cecseeceeeeeeeeee ll

§ 111(b), 42 U.S.C. § 7411(b)....ccssccccesessesessesssssseveeees 20

§ 111(b\X 1A), 42 U.S.C. § 7411(B)(1A) cesseseveecereee 20

§ 111(d), 42 U.S.C. § 7411(A) ..ccsececccescsscsssssssseeeseseees 20

§ 123, 42 U.S.C. § 7428....cccccccccccccssssvecesseccesesssssvevee 22

$§ 160-169, 42 U.S.C. §§ 7470-7479 ..-cccccsssssseveveeee 19

§ 165(a)(4), 42 U.S.C. § 7475(aN(4) oceccccscsssssvesseeseeee 19

§ 165(a)(7), 42 U.S.C. § 7475(a)(7) scccccsssrsseeseesseeeee 22

TABLE OF AUTHORITIES -— Continued

Page

§$ 169(3), 42 U.S.C. § T47Q(3B)........cerersecrrrerererereres 19

§ 17S), GB UBC. § TEOUS) .ccccoccosccccccccccsccoscccsoscces 19

§ 173, 42 U.S.C. § 7503.0... is 19

§ 173(a)(1)(A), 42 U.S.C. § 7503(a)(1)(A).........-ceeeee 19

§ 173(a)(2), 42 U.S.C. § 7503(aNX 2) .........cceceeeeeereeeres 19

§ 173(c), 42 U.S.C. § TEOHc)............cccrcrccccsssccverereeee 19

§ 17G(b), 42 U.S.C. § TEODD) .....00000000000000000022000000000. 19

SB SERia), 4B UBC. 9B TEBE) ccccccoccccccccccccsccscccscescceee 10

§ 202(a)(1), 42 U.S.C. § 7521(a)(1)......... 10, 16, 26, 28

§ 202(i2)(A), 42 U.S.C. § 7521(i 2A) «00.0... cceeeeee 16

§ 302(d), 42 U.S.C. § T602(d)........ceseceesseeeeeeeereeeeees 11

§ 302(g), 42 U.S.C. § 7602(g) .............ccceceeeeeees 7, 12,13

§ 302(h), 42 U.S.C. § TE602(h)...............ccececereccseeeseees 13

Clean Air Act Amendments of 1990, Title IV, 42

ts Gi, GP GUE, BOO cccncccccscoccccescccesesccsscccnscncessosoces 31

§§ 401, 403-405, 42 U.S.C. §§ 7651, 7651b-

Ee 32

§ 602(a), (b), 42 U.S.C. § 7671ala), (b) ...... eee 35

§ 602(e), 42 U.S.C. § T67lale) ...........:cceceseereeeeees 35, 36

Noise Control Act of 1972, 42 U.S.C. §§ 4901-4918............ 8

intl nanenaticnieiennmenneneneneeete 8

Energy Security Act of 1980, Title VI, 42 U.S.C.

I ceehenensons 33

TABLE OF AUTHORITIES - Continued

Page

Energy Policy Act of 1992, Title XVI, Pub. L. No.

Ir Tati ovscchiiacinsssasiniasaasniasiulasicaiaapuaiaatscaialzehaatatiainedasiaaiiiaiiiailitaas 36

§§ 1602(a), (g), 42 U.S.C. §§ 13382(a), (g)............... 37

§ 1605(a), 42 U.S.C. § 13385(a)...................:ccceeeeeees 37

§ 1605(b), 42 U.S.C. § 13385(b)..............ceeeeeeeeeeeeees 37

Pub. L. 91-604, § 15(a)(1), 84 Stat. 1710 0... 8

Pub. L. 95-95, § 301(c), 91 Stat. 769.............ccccccccssssecesseees 8

Pub. L. 101-549, § 108(j), 104 Stat. 2468..........00000 ee. 12

Energy Policy Act of 2005, Pub. L. No. 109-58, tit.

XVI, §§ 1610(b)(1), (c1), 1611, 119 Stat. 595,

IrTit usishieicahiisesnttienasiantennddsidiansiidiniiaiibetitindinmibiinaiainemamisemaliinaiigate 37

REGULATIONS AND FEDERAL REGISTER NOTICES

I inntiiaiieitterieatcinetntanssiatanicernertincinpensnicinienidliaiamaisiiadiinada 11

61 Fed. Reg. 9905, 9905 (1996)...................-csssssssssssssesseseees 3

63 Fed. Reg. 6426, 6454 (1998)..................ccccrescovsreecsrsererees 3

71 Fed. Reg. 9865 (Feb. 27, 2006)..............cccccseccesssaneeeeeees 29

LEGISLATIVE HISTORY

House Comm. Rep. 91-1146, reporting H.R. 17255,

June 3, 1970, 91 Cong. House Report 1146, Leg.

Hist. of the Clean Air Act of 1970 at 18 .......ccccccccceeeeeees 10

H.R. Rep. 101-490, pt. 1, at 159, 1990 Legis. Hist.

Ti niiisciessiibisninidictinlccaiiitidianatninninialinmmnnnessaeabianiiaiadentiie 33

H.R. Rep. 101-490, pt. 1, at 167, 1990 Legis. Hist.

ETE EE STA TNE AS ELAS Fe Lee As aa LL En RR ne A BE 32

TABLE OF AUTHORITIES - Continued

Page

H.R. Rep. 101-490, pt. 1, at 356, 1990 Legis. Hist.

I iia tahienll teh btaneueiianiicinainaindilasiae 32

1990 Legis. Hist. at 5178, 7248 ...............c.ccccccesrsrrossreseeees 34

Sen. Debate on S.1630 (3/5/1990), 1990 Legis. Hist.

SRE een nna E Teme 34

S.1630, 103d Cong. § 206 (1989), 1990 Legis. Hist.

| ESI serene ee em an Ne 34

S. Rep. 101-238 at 98-100, 1990 Legis. Hist. 8338 at

ETE e ee LO aon Ine ee ne nT 34

S. Rep. 101-238 at 685, 1990 Legis. Hist. 8338 at

ITT sities iat iaeiniamasitaaaenliitaaiaciasiniiiiie 34

S. Rep. 101-238 at 686, 1990 Legis. Hist. 8338 at

Scanian ticiaailiidgaiiaaniaenes 35

H.R. Rep. 102-474, pt. 1, at 152 (1992), 1992

fF ES EB en 37

151 Cong. Rec. $6878, S6892-96 (daily ed. June 21,

RTI IS es Lee ee Noe eat a oN 37

INTRODUCTORY STATEMENT

The CO, Litigation Group, which intervened below in

support of Respondents Environmental Protection Agency,

et al. (“EPA”), is an informal group whose members are all

trade associations or other organizations representing

businesses that would be affected by regulation of emis-

sions of carbon dioxide (“CO,”) and other substances

believed by many to contribute to global climate change

(“greenhouse gases”). These organizations represent a

broad spectrum of U.S. business and industry. Each

organization has among its members businesses that burn

fossil fuel and other organic matter (such as wood), which

unavoidably generates CO,. In addition, in some cases the

organization’s members also are involved in: the produc-

tion or marketing of fuels, both for motor vehicles and for

boilers and other “stationary sources”; the manufacture or

marketing of fuel-burning equipment; the use of oil or

natural gas as a raw material for the manufacture of other

chemicals; the oxidation of carbon as a process chemical

(as in steelmaking); or business activities dependent on

the public’s use of fossil-fuel-burning vehicles (such as

highway construction and operation of convenience

stores).' |

The organizations comprising CO, Litigation Group

are: the American Chemistry Council, the American Forest

& Paper Association, the American Iron and Steel Insti-

tute, the American Petroleum Institute, the American

Road & Transportation Builders Association, the Business

Roundtable, the Chamber of Commerce of the United

' For brevity, this brief sometimes refers to “CO, Litigation Group”

to mean the members of the trade associations or other organizations

that in turn comprise CO, Litigation Group.

States of America, the National Association of Convenience

Stores, the National Association of Manufacturers, the

National Petrochemical and Refiners Association, the

Portland Cement Association, the Society of Independent

Gasoline Marketers of America, the Specialty Steel Indus-

try of North America, and the Steel Manufacturers Asso-

ciation.

The COQ, Litigation Group’s members believe that

global climate change is a highly complex phenomenon,

and that many of the statements in Petitioners’ brief (and

the briefs of many of the amici curiae) about its extent and

causes are oversimplified and overstate the certainty of its

potential future course and effects. The CO, Litigation

Group’s members do agree, however, that the potential-for

global climate change and the possible role of anthropo-

genic emission sources in global climate change are impor-

tant public concerns that warrant ongoing research and

consideration by the government of the United States (as

well as the governments of other countries and transna-

tional bodies). In fact, many of the CO, Litigation Group’s

members already are taking steps to reduce atmospheric

loading of CO, and other greenhouse gases from their

activities, through voluntary measures such as improving

energy efficiency or providing “carbon sinks” where CO, is

removed from or kept out of the atmosphere (known as

“carbon sequestration”).

While the ongoing scientific research and political

debate may lead to the adoption of mandatory measures to

reduce atmospheric loadings of greenhouse gases, as a

means to mitigate the potential for global climate change,

the CO, Litigation Group does not agree with Petitioners

that Congress adopted or authorized such mandatory

measures over 35 years ago in the Clean Air Act of 1970.

Just as importantly, the CO, Litigation Group_believes

strongly that the regulatory mechanisms in the Clean Air

Act, designed to address adverse effects of particular

emission sources on the ambient air to which humans,

plants, and animals are exposed, are not appropriate for

addressing a global problem believed to be caused by

concentrations in the global atmosphere of substances that

are contributed to (and removed from) the atmosphere by

a wide range of human activity and natural processes

around the world.

Regulating greenhouse gas emissions under the

Clean Air Act in order to mitigate global climate change’

would subject those emissions to a range of requirements

that are either inappropriate or ineffective for that

purpose. This reality, ignored or dismissed by Petitioners

and their supporters, is a key factcr underpinning EPA’s

* Some compounds whose emission is believed to contribute to

global climate change may also have adverse health effects in the

ambient air (unlike carbon dioxide, which is naturally present as a

component of ambient air and is essential for most plant life). Methane

emissions, for example, might present an explosion risk or adverse

health effects at ground level. But regulation of methane as an air

pollutant because of those effects does not mean that the Clean Air Act

also authorizes regulation of methane emissions for the entirely

different purpose of controlling its concentration in the global atmos-

phere for purposes of mitigating global climete change. Petitioners

suggest that EPA’s mention of potential global warming effects of

methane emissions, in connection with the promulgation of a rule

limiting ground-level methane emissions from new landfills, constitutes

a determination that greenhouse gas emissions can be regulated for

climate change purposes. Pet. Br. at 34, citing 61 Fed. Reg. 9905, 9905

(1996) and 63 Fed. Reg. 6426, 6454 (1998). But those EPA Federal

sions, regulated in that rule as air pollutants affecting ambient air

' quality, may also contribute to global climate change when they result

in an increase in the methane concentration of the global atmosphere.

interpretation of its Clean Air Act authorities, and a fatal

flaw in Petitioners’ efforts to force EPA to regulate green-

house gas emissions under the existing statutory frame-

work. No matter how serious a concern global climate

change may be, that concern does not justify trying to

shoehorn global climate change into a regulatory structure

designed and enacted by Congress to address different

types of problems.

SUMMARY OF ARGUMENT

Petitioners claim that a few isolated words in the

Clean Air Act unambiguously authorize a massive new

type of regulatory program never even mentioned by

Congress. In fact, though, applying traditional tools of

statutory construction, what is clear instead is that

Petitioners’ interpretation is not an appropriate construc-

tion of the Clean Air Act, while EPA’s interpretation is

both permissible and appropriate. Petitioners ignore

critical elements of the definition of “air pollutant,” includ-

ing “air pollution agent” and “ambiént air.” Their interpre-

tation also would make the definition of “air pollutant”

internally inconsistent in several respects. Petitioners

misconstrue the reference to “weather” and “climate” in

the definition of effects on welfare as if those words cre-

ated new regulatory authority, and contrary to the ordi-

nary meaning of those words.

In considering whether the Clean Air Act clearly

authorized regulation of emissions of carbon dioxide and

other greenhouse gases for purposes of mitigating global

climate change, EPA appropriately considered not just

isolated words in the definitions section, but the language

and structure of the regulatory provisions of the Act as a

whole. The primary mechanism in the Clean Air Act for

improving and maintaining air quality - establishing

ambient air quality standards and requiring states to

_ develop measures to control pollutant emissions to ensure

those standards will be attained within the state — has no

application to atmospheric loadings of greenhouse gases,

where an emission of a ton of carbon dioxide in California

has the same potential impact on global climate change as

a ton emitted in Connecticut . . . or in China.

Recognizing that these and other regulatory provi-

sions make no sense if the definition of “air pollutant”

were read to authorize regulation under the Clean Air Act

of emissions of greenhouse gases for purposes of mitigat-

ing global climate change, EPA reasonably concluded that

the isolated words of the statute referenced by Petitioners

do not authorize or require a huge, new regulatory pro-

gram for greenhouse gases, using inappropriate mecha-

nisms. This reading is consistent with the fact that all of

the congressional enactments related to greenhouse gases

so far have concerned research and data-gathering or

other non-regulatory programs, and the fact that Congress

has repeatedly considered and rejected proposals to

impose limits on emissions of greenhouse gases.

Petitioners argue that the need to address global

climate change is so serious that the Court must reject

EPA’s interpretation of the Act. But no matter how impor-

tant the issue may be, the Court should not substitute its

judgment for the political decisions that the legislative and

executive branches have made and continue to make in

addressing this global issue. See FDA v. Brown & William-

son Tobacco Corp., 529 U.S. 120, 161 (2000).

ARGUMENT

Petitioners claim that Congress, speaking “plainly,”

has given EPA authority to regulate emissions of CO, and

other greenhouse gases for purposes of mitigating possible

global climate change. Pet. Br. at 17. They claim that

delegation to EPA of the power to create a new regulatory

program affecting a large portion of human activity in this

country came not through provisions of the Clean Air Act

addressing possible climate change (since those are all

non-regulatory), but through the “straightforward” mean-

ing of two definitions contained in the Act. Jd. at 12, 15,

17. But even leaving aside the propriety of inferring far-

reaching regulatory authority from a technical analysis of

a definition provision, Petitioners have failed to show,

using “the traditional tools of statutory construction,” that

the language of the Clean Air Act is unambiguous, or that

EPA’s interpretation that the Act does not extend to

emission controls to address global climate change is an

impermissible one. See Chevron U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 842-43 & n.9

(1984); Brown & Williamson, 529 U.S. at 132-33.

I. Petitioners Have Not Demonstrated that Un-

ambiguous Language of the Clean Air Act Gives

EPA Authority To Regulate Emissions for Pur-

poses of Mitigating Global Climate Change.

Petitioners claim that their interpretation of EPA's

authority under the Clean Air Act is compelled by the

plain meaning of this portion of the definition of “air

pollutant” in CAA section 302(g), 42 U.S.C. § 7602(g):

The term “air pollutant” means any air pol-

lution agent or combination of such agents,

including any physical, chemical, biological, ra-

dioactive (including source material, special

nuclear material, and byproduct material) sub-

stance or matter which is emitted into or other-

wise enters the ambient air.

But Petitioners’ interpretation reads both too much and

too little into the definition of “air pollutant,” ignoring

important portions of the language of the definition and

supplying words and punctuation not contained therein.

The straightforward reading of the definition is that it

covers only something that is emitted into the ambient air

and which EPA determines causes pollution of the air. And

that is the reading that EPA followed in rejecting the rule-

making petition at issue in this case. See Pet. App. A-78.

“Air pollutant” is defined to “mean” “any air pollution

agent....” Jd. But Petitioners effectively read “air pollu-

tion agent” out of the definition of “air pollutant.” They

assert that everything falling within the phrase in the

_ definition “including any physical, chemical, biological,

radioactive (including source material, special material,

and byproduct material) substance or matter which is

emitted into or otherwise enters the ambient air” is a

subset of “air pollutant agent.” But Petitioners also assert

that any and every physical, chemical, biological, or

radioactive substance or matter that enters the air is an

air pollutant.’ Pet Br. at 12-13. Under this reading, the

* Note that, although chastising EPA for considering subsequent

amendments to the CAA in determining whether greenhouse gases may

(Continued on following page)

only reason that Congress needed to keep the words “air

pollution agent” in the definition at all was to make sure

that EPA had authority to regulate “phenomena” that

cause air pollution but have no mass, like heat or x-rays.

Pet. Br. at 14. Petitioners offer no reference for the novel

contention that heat, apparently because it causes hot air,

is considered an air pollutant, nor any indication that EPA

ever considered its Clean Air Act authority to extend to

heat “pollution.” The same is true of Petitioners’ claim that

“air pollutant” includes “ionizing radiation,” like ultravio-

let light - apparently EPA has never in the past three

decades exercised this postulated regulatory authority

over non-physical factors that, per Petitioners, was the

only reason for Congress’ inclusion of the phrase “air

pollution agent” in the definition of “air pollutant.”

be regulated as “air pollutants” (Pet. Br. at 22-23), Petitioners them-

selves rely principally on the “including . . .” portion of the definition of

“air pollutant” that was added in the 1977 Clean Air Act Amendments,

seven years after Congress defined “air pollutant” as an “air pollution

agent or combination of such agents” and defined effects on welfare to

include effects on “climate” and “weather.” Compare Pub. L. 91-604,

§ 15(a)(1), 84 Stat. 1710 with Pub. L. 95-95, § 301(c), 91 Stat. 769.

* Under Petitioners’ reading of the definition of “air pollutant,” the

Clean Air Act of 1970 also authorized the regulation of noise — which is

something else without mass, like heat, that enters the air from mobile

and stationary sources. Yet Congress two years later enacted a statute

giving EPA (much less extensive) regulatory authority over noise, the

Noise Control Act of 1972, 42 U.S.C. §§ 4901-4918. Cf. 42 U.S.C. § 4901

(declaring that “inadequately controlled noise presents a growing

danger to the health and welfare of the Nation's population” and

explaining that purposes of the act include “to establish a means for

effective coordination of Federal research and activities in noise control”

and “to authorize the establishment of Federal noise emission stan-

dards for products distributed in commerce”).

’ Likewise, the four former EPA Administrators who filed an

amicus curiae brief in support of Petitioners, although arguing that

(Continued on following page)

By effectively reading “air pollution agent” in the

definition as superfluous, i.e., as imposing no limitation on

what may be considered an “air pollutant,” Petitioners

violate the basic principle that an interpretation of a

statute must give meaning to all of its words. See, e.g.,

Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994).°

Certainly, in such circumstances, Petitioners’ interpreta-

tion cannot be considered the only permissible one; nor, for

the reasons stated herein, is it even a reasonable one. See

Chevron, 467 U.S. at 844.

Petitioners’ reading of the statute also has the effect

(counterintuitive, yet essential for their argument) of

separating the concept of “air pollutant” from any notion of

“polluting” the air. The Compact Oxford English Diction-

ary defines the verb “pollute” as “contaminate with harm-

ful or poisonous substances.” If anything entering the

ambient air is considered an air pollutant, then even a

substance that is beneficial to humans, like oxygen or

water vapor, is treated as if it were contaminating the air.’

they always viewed their authority under the Clean Air Act very

broadly, give no indication that they ever considered “phenomena” like

heat or non-ionizing radiation to be air pollutants.

* EPA’s reading of the definition does not ignore the necessary

meaning of “including,” as Petitioners claim. Pet. Br. at 14. A perfectly

logical reading is that the language after “including” is meant to

provide examples of things that can be “air pollution agents,” not things

that invariably are. Put another way, if a statute authorized regulation

of “drugs used in the treatment of diseases in children, including

substances that are ingested, injected, or applied to the skin,” pre-

sumably no one would assert that the statute authorizes regulation of

orange juice or sunscreen.

* The amicus curiae brief submitted in support of Petitioners by

“Climate Scientists,” recognizing the absurdity of this outcome, appears

to argue that water vapor, although an air pollutant, is an air pollutant

whose emissions “do not ‘cause, or contribute,’ to pollution implicated in

(Continued on following page)

This illogical result argues strongly against the Petition-

ers’ interpretation of the statutory language. See, e.g.,

Tennessee Valley Authority v. Hill, 487 U.S. 153, 204

(1978); Shapiro v. United States, 335 U.S. 1, 31 (1948).

Petitioners also effectively ignore the phrase “which is

emitted into or otherwise enters the ambient air” in the

definition of “air pollutant” in CAA section 302(g). This

focus on ambient air is a key attribute of the Clean Air

Act, which was enacted “to speed up, expand, and intensify

the war against air pollution in the United States with a

view to assuring that the air we breathe throughout the

Nation is wholesome once again.” House Comm. Rep. 91-

1146, reporting H.R. 17255, June 3, 1970, 91 Cong. House

Report 1146; Leg. Hist. of the Clean Air Act of 1970 at 18

(emphasis added). EPA is directed to derive National

Ambient Air Quality Standards, the cornerstone of air

pollution control under the CAA," for “any air pollutant . ..

the presence of which in the ambient air results from

numerous or diverse mobile or stationary sources ....” CAA

section 108(a1)B), 42 U.S.C. § 7408(aX1)(B) (emphasis

added).® “Ambient air” has long been defined by EPA as

anthropogenic climate change.” Jd. at 11 n.8 (citing CAA § 202(a)(1), 42

U.S.C. § 7521(a)(1)). This convoluted new gloss on “air pollutant,” which

dismisses with the concept of “air pollution agent” altogether for some

substances, is only necessitated by Petitioners’ overbroad interpretation

of “air pollutant” as encompassing anything emitted into the ambient

air.

* Union Electric Co. v. EPA, 427 U.S. 246, 249 (1976) (calling the

ambient air quality standards program the “heart” of the CAA).

° See also, e.g., CAA section 108(a)(2), 42 U.S.C. § 7408(a)(2) (“Air

quality criteria for an air pollutant” must describe al] the effects on

public health or welfare “which may be expected from the presence of

such pollutant in the ambient air, in varying quantities ... "), CAA

section 109(bX2), 42 U.S.C. § 7409(b)(2) (ambient air quality standards

(Continued on following page)

“that portion of the atmosphere, external to buildings, to

which the general public has access,” 40 C.F.R. § 50.1(e),

and it “is the statute’s term for the outdoor air used by the

general public.” Train v. Natural Resources Defense Coun-

cil, 421 U.S. 60, 65 (1975).”°

But the potential adverse effects of greenhouse gas

emissions on global climate that Petitioners are concerned

about are not from the presence of greenhouse gases in the

ambient air, the air we breathe. Rather, it is the overall

concentration of those gases in the world’s atmosphere as

a whole — which is believed to be fairly consistent globally

and “well mixed throughout the atmosphere, up to ap-

proximately the lower stratosphere” — that many are

concerned may be causing global climate change by trap-

ping radiant heat and preventing radiant cooling. Pet.

App. A-72 — A-73. EPA’s determination that regulation of

must “protect the public welfare from any known or anticipated adverse

effects associated with the presence of such air pollutant in the ambient

air’), CAA section 111(a7XB), 42 U.S.C. § 741l(aX7XB) (discussing

measures to reduce pollution from new sources “before such pollution is

emitted into the ambient air”).

Because the Act’s National Ambient Air Quality Standards

provisions by definition address the quality of “national,” not interna-

tional, ambient air, and because those provisions cover only “States”

(defined to include only United States territory, CAA sections 107,

302(d), 42 U.S.C. §§ 7407, 7602(d)), the “ambient air” addressed by

these provisions is that limited portion of the total global atmosphere

that is within our national -borders and that people breathe. (See also

the congressional declaration of the purposes of the CAA, which include

protecting “the Nation's air resources” and encouraging state, local, and

regional air pollution prevention and control programs. CAA §101(b), 42

U.S.C. § 7401(b).) Thus, sections 108 and 109 of the Act authorize

regulation to address adverse effects on public health and welfare that

result from the presence of a listed air pollutant in the quantities in

which it exists in the United States’ ambient-air portion of the total

global atmosphere.

greenhouse gas emissions for purposes of mitigating global

climate change is not authorized by the Clean Air Act is

consistent with the phrase “which is emitted into or

otherwise enters the ambient air” in the definition of “air

pollutant”; Petitioners’ interpretation is not. Compare Pet.

App. A-72 - A-74 and Jt. App. 128-130, 135 with Pet. Br.

12-15.

Petitioners’ reading of the definition of “air pollutant”

also is inconsistent with the second sentence of that

definition, added in the Clean Air Act Amendments of

1990: “Such term includes any precursors to the formation

of any air pollutant, to the extent the Administrator has

identified such precursor or precursors for the particular

purpose for which the term ‘air pollutant’ is used.” CAA

section 302(g), 42 U.S.C. § 7602(g) (sentence added by

section 108(j2) of Pub. L. 101-549, 104 Stat. 2468). If any

substance that is emitted into or otherwise enters the

ambient air is an “air pollutant” under the first sentence of

the definition in CAA section 302(g), as Petitioners assert

(see Pet. Br. at 13-14), then it would be unnecessary to

have a second sentence stating that “any precursors to the

formation of any air pollutant” are “air pollutants” them-

selves. Moreover, it would make no sense to say that such

precursors are “air pollutants” only to the extent identified

by the Administrator of EPA “for the particular purpose for

which the term ‘air pollutant’ is used,” if, as Petitioners

assert, all substances emitted into the ambient air are “air

pollutants,” without any consideration of their effect in the

air. Thus, Petitioners’ interpretation of the definition of

“air pollutant” not only fails to give meaning to every word

of the definition, by ignoring “air pollution agent or combi-

nation of agents” and “ambient air,” it ignores an entire

sentence of the definition. Cf. United States v. Nordic

Village, Inc., 503 U.S. 30, 36 (1992) (courts must construe

a statute, so far as possible, to give effect to every word).

Far from being a reasonable — let alone the only reason-

able — interpretation of that definition, it does not even

conform to basic principles of statutory interpretation.”

Finally, Petitioners claim that their interpretation of

EPA’s Clean Air Act authority is compelled by the inclusion

of the words “weather” and “climate” in the definition of

“effects on welfare” in CAA section 302(h), 42 U.S.C.

§ 7602(h). Pet. Br. at 15. But that provision does not define

“air pollutants” or “air pollution,” nor does it expand those

terms; it merely lists effects on welfare that should be

" See Chevron, 467 U.S. at 843 n.9 (in deciding whether Congress

directly addressed a particular issue (step 1), courts may use “the

traditional tools of statutory construction”). Petitioners also describe

the definition of “air pollutant” as if it were worded differently than it

is, referring to that definition as including “physical and chemical

matter” emitted into the ambient air (Pet Br. at 12 (emphasis omitted)).

But in fact, the statute says “chemical, physical, biological, radioactive

_ substance or matter which is emitted into or otherwise enters the

ambient air.” 42 U.S.C. § 7602(g). There is no “or,” nor any other

conjunction, in the series “chemical, physical, biological, radioactive . . .

substance.” Nor is there a comma after “matter.” Grammatically, then,

one could interpret the definition as including (1) any chemical,

physical, biological, and/or radioactive substance, or (2) matter which is

emitted into the ambient air. CO, Litigation Group does not suggest

that is what Congress intended, but only that the fact that Petitioners

must supply words and punctuation not in the statute to make the

definition grammatical is a strong indication that the language of the

statute does not unambiguously mandate the regulation of greenhouse

gas emissions as Petitioners claim. Similarly, since “chemical” sub-

stances are also “physical” ones, as are “biological” and “radioactive”

substances, and “radioactive” substances are “chemical” ones as well,

the language of the definition of “air pollutant” might equally well be

described as redundant as clearly “bespeakling) breadth.” Cf. Pet. Br. at

12-13.

taken into account when regulating an air pollutant.

Moreover, the dictionary definition of “climate” is “the

general weather conditions usually found in a particular

place,” Cambridge Dictionary of the American Language

(emphasis added), or “the meteorological conditions,

including temperature, precipitation, and wind, that

characteristically prevail in a particular region,” American

Heritage Dictionary of the English Language, Fourth

Edition (2000) (emphasis added). There is nothing to

suggest that Congress, over 35 years ago, intended instead

to mean “global climate.””

Il. EPA’s Interpretation of Its Limited CAA

Authority To Address Global Climate Change

Is Reasonable and Consistent with the Re-

mainder of the Statute

One of the traditional tools of statutory construction

that EPA applied in assessing whether the definitions

section of the Clean Air Act give it authority to regulate

emissions of greenhouse gases for purposes of mitigating

global climate change was to look to the text and structure

of the remainder of the statute, and in particular to

whether such an interpretation of the definitions would be

® Additionally, Petitioners’ all-encompassing interpretation of “air

pollutant” is particularly problematic regarding effects on “weather.”

Many types of “matter” as well as non-physical “phenomena” that

“enter the ambient air” affect weather, such as wind, humidity, and

static electricity. Under the interpretation of the definitions of “air

pollutant” and “welfare” advocated by Petitioners, EPA would have

authority to regulate these natural materials and phenomena that

affect weather as “air pollutants” (and, under Petitioners’ reasoning, if

those materials or phenomena could reasonably be anticipated to

endanger public health or welfare, EPA would be required to regulate

them). Cf. Pet. Br. at 13-15, 35-38.

reasonable in light of the types of measures to address air

pollution that EPA is authorized to take under the Clean

Air Act. Pet. App. at A-72 - A-75; cf. Davis v. Michigan

Dept. of Treasury, 489 U.S. 803, 809 (1989) (“It is a funda-

mental canon of statutory construction that the words of a

statute must be read in their context and with a view to

their place in the overall statutory scheme.”); United

States v. American Trucking Ass’ns, 310 U.S. 534, 543-44

(1940) (looking to whether an interpretation of statutory

terms would lead to futile or absurd results when applied

to the remainder of the statute, regardless of how clear the

words may be on “superficial examination”). The principle

that words of a statute must be interpreted in light of the

remainder of the statute, “while not an inescapable rule, is

often wisely applied where a word is capable of many

meanings in order to avoid the giving of unintended

breadth to the Acts of Congress.” Jarecki v. G.D. Searle &

Co., 367 U.S. 3( 3, 307 (1961). “A court must therefore

interpret the statute as a symmetrical and coherent

regulatory scheme and fit, if possible, all parts into an

harmonious whole.” Brown & Williamson, 529 U.S. at 133

(quotations and citations omitted).

As EPA correctly noted, its regulatory authorities

under the Clean Air Act were not designed with mitiga-

tion of global climate change in mind, and many of them

would be inappropriate and ineffective for that purpose.

Pet. App. at A-72 — A-74. If EPA and states were forced to

regulate greenhouse gas emissions using those regulatory

" See also Whitman v. American Trucking Ass'ns, 531 U.S. 457,

468 (2001) (“Congress, we have held, does not alter the fundamental

details of a regulatory scheme in vague terms or ancillary provisions -

it does not, one might say, hide elephants in mouseholes.”).

authorities, the result would be inefficient control meas-

ures with huge costs and economic dislocations.

A. Incompatibility Between Global Climate

Change and Clean Air Act Regulatory

Programs

As explained above, the most far-reaching aspect of

the CAA regulatory scheme is the establishment and

implementation of National Ambient Air Quality Stan-

dards (“NAAQS”). (That regulatory scheme was ad-

dressed by the Court most recently in Whitman v.

American Trucking Ass’ns, 531 U.S. 457 (2001); see also

Train v. Natural Resources Defense Council, 421 U.S. 60

(1975).)

The necessary first step in — and the trigger for — the

process of establishing NAAQS for an air pollutant is

placing it on a list of air pollutants established under CAA

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

requires the Administrator of EPA to publish a list that

includes each air pollutant:

(A) emissions of which, in his judgment,

cause or contribute to air pollution which may

reasonably be anticipated to endanger public

health or welfare;”

“ Union Electric, 427 U.S. at 249; see also CAA § 202(iX2MA), 42

U.S.C. § 7521(i2)A) (directing EPA to examine the need for further

motor vehicle emission reductions “to attain or maintain” NAAQS).

language describing the judgment the Administrator must make to set

emission standards for motor vehicles under CAA § 202(a)(1), 42 U.S.C.

§ 7521(a\(1).

(B) the presence of which in the ambient

air results from numerous or diverse mobile or

stationary sources; and

been issued before December 31, 1970, but for

which he plans to issue air quality criteria under

this section.

Id. Within twelve months after including such an air

pollutant on this list, EPA must issue air quality criteria

for the air pollutant which “accurately reflect the latest

scientific knowledge useful in indicating the kind and

extent of all identifiable effects on public health or welfare

which may be expected from the presence of such pollutant

in the ambient air.” CAA § 108(a)(2), 42 U.S.C.§ 7408(a)(2)

(emphasis added). For this reason, pollutants included on

the section 108(a)(1) list are referred to as “criteria pollut-

ants.”

At the same time that it issues air quality criteria for

a newly listed criteria pollutant, EPA must also promul-

gate NAAQS for the pollutant under section 109 of the

CAA, 42 U.S.C. § 7409. Primary NAAQS establish concen-

trations of a criteria pollutant that must be attained and

maintained in the ambient air in order to protect the

public health, based on the criteria established under

section 108(a)(1) for the pollutant and allowing an ade-

quate margin of safety. CAA § 109%(b)(1), 42 U.S.C.

§ 7409(b)(1).

Establishment of NAAQS in turn sets in motion an

enormously complex and extensive regulatory process.

Under the Act’s provisions for implementing NAAQS, each

State has “the primary responsibility” for attaining and

maintaining the NAAQS within its borders. CAA § 107(a),

42 U.S.C. § 7407(a); see id. § 110, 42 U.S.C. § 7410 (setting

out requirements for State plans to implement the

NAAQS); id. § 101(a)(3), 42 U.S.C. § 7401(a)(3), (stating

Congress’ finding that “air pollution control at its source is

the primary responsibility of States and local govern-

ments”). The Act provides that each State, subject to EPA

review and approval, is to designate as a “nonattainment”

area any area within that State “that does not meet (or

that contributes to ambient air quality in a nearby area

that does not meet)” the NAAQS. CAA § 107(d)(1)(A)(i), 42

U.S.C. § 7407(d)(1XA)G). Other areas are designated

“attainment” if they meet the NAAQS or “unclassifiable” if

information is unavailable to classify them as meeting or

not meeting it. Under the Act, each State fulfills its “statu-

tory role as [the] primary implementer|] of the NAAQS”

within that State through an implementation plan (called

a State implementation plan or “SIP”) that “speciflies] the

manner in which national ... ambient air quality stan-

dards will be achieved and maintained within ... such

State.” CAA § 107(a), 42 U.S.C. § 7407(a).

In other words, the statutory scheme assigns to each

State the primary role in implementing any NAAQS by

adopting and enforcing emission control measures to limit

the presence of criteria air pollutants in the ambient air

within its borders to levels necessary to attain and main-

tain the air quality levels set by the NAAQS.” The statute

* Whitman, 531 U.S. at 470 (emphasis omitted) (citing CAA

§§ 107(a), 110, 42 U.S.C. §§ 7407(a), 7410).

" If a State iuils to develop and submit a SIP in a timely way, the

Administrator must promulgate a “Federal implementation plan” or

“FIP,” which takes the place of the SIP in that State. CAA § 110{c)(1), 42

U.S.C. § 7410(cX1).

also contains mandatory sanctions for states that fail to

submit or implement adequate SIPs, including a possible

prohibition on issuance of federal highway funding to the

state and a requirement that emissions from all new and

modified major sources be offset by a reduction of emis-

sions at existing sources at least twice as large. CAA

§§ 110(m), 179(b), 42 U.S.C. §§ 7410(m), 7509%b).

In addition to imposing controls on existing sources

through SIPs or FIPs, state and EPA regulatory authori-

ties also are directed to impose requirements on the

construction of new major sources of air pollution and the

modification of existing major sources. CAA §§ 160-169, 42

U.S.C. §§ 7470-7479 (Prevention of Significant Deteriora-

tion (“PSD”) requirements for areas attaining NAAQS);

and CAA section 173, 42 U.S.C. § 7503 (new source review

(“NSR”) requirements for areas not attaining NAAQS).

Among other things, these preconstruction permitting -

programs required by the Act mandate that new or modi-

fied sources utilize the Best Available Control Technology

(in attainment areas), CAA §§ 165(a)(4), 169(3), 42 U.S.C.

§§ 7475(a)(4), 7479(3), or meet even more stringent Lowest

Achievable Emission Rates (in non-attainment areas),

CAA §§ 171/3), 173(aX(2), 42 U.S.C. §§ 7501(3), 7503(a)(2).

In areas that have been designated as not attaining the

NAAQS, new or modified sources also must pro~ide

“emission offsets” -- reductions in pre-existing emissions of

the pollutant that would more than offset the increased

emissions of the pollutant from the new or modified source.

CAA § 173(aX1XA) and (c), 42 U.S.C. § 7503(a)(1)(A), (c).

The Clean Air Act also requires EPA to establish

standards of performance for new or modified stationary

sources of any air pollutant, not just those criteria pollut-

ants covered by NAAQS. CAA § 111(a)(3) (definition of

stationary source), §111(b) (standards for categories of

sources), 42 U.S.C. §§ 7411(a)(3), (b). EPA must prepare a

list of categories of stationary sources of air pollutants,

including any category of sources which, in the Adminis-

trator’s judgment, “causes, or contributes significantly to,

air pollution which may reasonably be anticipated to

endanger public health or welfare.” CAA § 111(b)(1)(A), 42

U.S.C. § 7411(b)(1)(A). EPA is then required to promulgate

new source pérformance standards (“NSPS”) for each such

category of sources, requiring that emissions of air pollut-

ants reflect the performance of the best demonstrated

system of emission reduction. CAA §§ 111(a)(1) and (7), 42

U.S.C. §§ 7411(a)(1) and (7). If the pollutant regulated is

not subject to a NAAQS, then the statute also requires

states to develop programs to control existing sources in

the same source categories for which NSPS have been

promulgated. CAA § 111(d), 42 U.S.C. § 7411(d).

None of these regulatory authorities makes sense if

the “air pollutant” to which they are applied is CO, or

another greenhouse gas being regulated for the purpose of

mitigating potential global climate change. Since the

projected effect of greenhouse gas emissions on climate

change is a function of changes in the global atmosphere,

rather than local or regional air quality, and it is the

aggregate contribution of all greenhouse gas emissions

around the world to global atmospheric greenhouse gas

concentrations that is believed by many to cause global

climate change, notions of attaining or not attaining an

ambient air quality standard within a state or air quality

control region are inapplicable. See Pet. App. at A-72 — A-74.

If, as Petitioners seek, the Clean Air Act were used to

reduce atmospheric loadings of greenhouse gases from

sources in the United States (or, to put it another way, if

Petitioners are correct that current atmospheric concen-

trations of greenhouse gases are higher than the concen-

tration needed “in order to protect the public health,” CAA

§ 109(b\(1), 42 U.S.C. § 7409(b)(1)), then the entire

country would be a nonattainment area for any green-

house gas NAAQS. Distinctions in the statute between

attainment and nonattainment areas would be meaning-

~ Jess. More importantly, because atmospheric concentra-

tions of greenhouse gases would be outside the control of

any individual source or any individual state, no state,

regardless of how stringent its State Implementation Plan

was, could demonstrate attainment of the NAAQS. See Jt.

App. 130. Thus, sanctions for nonattainment of such a

standard would be unavoidable for all states, a result that

Congress could not have intended.

In any event, EPA would have no rational basis for

establishing NAAQS for CO., i.e., a local, ambient concen-

tration of CO, that could be determined to be “requisite to

protect the public health” with “an adequate margin of

safety,” CAA § 109(b)(1), 42 U.S.C. § 7409(b)(1). That is

because: (1) no attempt to meet a particular concentration

of CO, in a state’s ambient air could be shown to protect

public health from a global phenomenon believed to be a

function of the average concentration of greenhouse gases

in the global atmosphere and of worldwide loadings of

greenhouse gases and (2) in any case there is no agree-

ment on what concentration of CO, in the global atmos-

phere (in combination with other greenhouse gases) is

sufficiently protective or optimal for the global climate.

See Jt. App. 161, 202-205 (describing uncertainties and

value judgments affecting the ability to set a “safe” level

for greenhouse gas concentrations in the ambient air).

“The differences among climate model projections are

sufficiently large to limit the ability to define an ‘accept-

able concentration’ of atmospheric greenhouse gases.” Id.

at 204; see also Pet. App. A-73 (complexities of global

climate “would present scientific issues of unprecedented

complexity in the NAAQS context”). Thus, the concept of a

NAAQS, established by Congress as the centerpiece of

Clean Air Act regulation, just does not fit CO, and other

greenhouse gases. Cf. Union Electric, 427 U.S. at 249.

Nor would the Clean Air Act provisions requiring new

or modified sources to reduce emissions to the greatest

degree achievable and to obtain ~mie-ion offsets have any

apparent public policy justification \vith respect to CO,,

given that CO, is not, in and of itself, a harmful substance

when emitted into or residing in the ambient air, but in

fact constitutes an important constituent of the atmos-

phere that plays an essential role in life on Earth.* Unlike

existing criteria air pollutants, which are agents of pollu-

tion according to the common meaning of “pollution”

(making the air contaminated or impure) and for which

further reduction of emissions and ambient concentrations

'* There are also numerous other provisions of the CAA that would

be inappropriate or meaningless if applied to greenhouse gases to

address global climate change. See, e.g., CAA § 165(aX(7), 42 U.S.C.

§ 7475(aX'7) (requiring new facilities emitting major amounts of air

pollutants (see CAA § 169(1), 42 U.S.C. § 7479(1)) to monitor their

emissions’ effects “on air quality in any area which may be affected by

[those] emissions” — which, in the case of greenhouse gases, would be

the entire world); CAA § 123, 42 U.S.C. § 7423 (allowing a source’s air

pollutant emission limitations to be relaxed to some extent due to the

height of its stack, which affects ambient air concentrations downwind

of the stack, but not concentrations in the global atmosphere).

always has at least some theoretical benefit, reducing

greenhouse gas emissions will not always be beneficial.”

In evaluating whether the Clean Air-Act authorizes

regulation of greenhouse gas emissions for climate change

mitigation purposes, EPA looked at these disconnects

between the regulatory systems Congress had established

and the nature of global climate change and the potential

role of greenhouse gas emissions, concluding that Con-

gress could not have intended such ineffective and in-

appropriate regulatory mechanisms to be applied to

greenhouse gas emissions. Pet. App. A-72 — A-74; Jt. App.

128-30. In light of the incompatibility of the remainder of

the statute with Petitioners’ interpretation of the defini-

tion of “air pollutant,” EPA’s determination not to regulate

greenhouse gas emissions under the Clean Air Act was

consistent with this Court’s guidance on statutory inter-

pretation and is entitled to deference. See, e.g., American

Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) (“Statutes

should be interpreted to avoid untenable distinctions and

unreasonable results wherever possible.”); Tennessee

Valley Authority v. Hill, 437 U.S. 153, 204 (1978) (“[Fre-

quently] words of general meaning are used in a statute,

words broad enough to include an act in question, and yet

a consideration of the whole legislation, or of the circum-

stances surrounding its enactment, or of the absurd

* Also, similar to the Clean Air Act program for reducing acid

deposition over the northeastern United States, requiring some sources

to reduce their greenhouse gas emissions to the greatest extent possible

(which might be appropriate if the goal were to minimize the impact of

the individual source on the ambient air) would almost certainly not be

an economically efficient way to achieve a desired reduction in average

greenhouse gas concentrations in the global atmosphere. See pp. 31-32,

infra.

results which follov from giving such broad meaning to

the words, makes it unreasonable to believe that the

legislator intended to include the particular act.”) (Powell,

J., dissenting) (internal quotes and citation omitted).

B. The Adverse Economic and Political Conse-

quences of Forcing Global Climate Change

into the Clean Air Act Regulatory Frame-

work Would Be Enormous.

If Petitioners’ succeed in their view that the Clean Air

Act definition of “air pollutant” is broad enough to encom-

pass regulation of greenhouse gas emissions for purposes

of mitigating global climate change, then it is highly

probable, at least as Petitioners see it, that all of the

foregoing Clean Air Act regulatory authorities would be

triggered, no matter how inappropriate or ineffective they

might be. Because generation of CO, is an unavoidable

result of the combustion of fossil fuels, relied on for trans-

portation and electric power generation oy the vast major-

ity of American businesses and individuals, attempts to

apply the Clean Air Act authorities te greenhouse gas

emissions would place an extraordinary burden on federal

and state regulators, regulated businesses, and the econ-

omy and public as a whole. That burden is heightened by

the fact that, at present, unlike most pollutants regulated

under the Clean Air Act, technologies are not currently

available to remove CO, from the emissions from fossil fuel

combustion. Pet. App. A-76 — A-78, A-87.

Since it is hard to imagine how NAAQS and SIP

requirements and other regulatory provisions of the Act

would be applied to greenhouse gases, it is impossible to

project exactly how great this burden would be, but it

would undoubtedly be huge.” (Amicus Curiae Calpine

Corporation, supporting Petitioners, offered a projection

by the private National Commission on Energy Policy that

— even if all of the aggressive and innovative measures

recommended by that group were implemented and were

successful — the cost of reducing greenhouse gas emissions

would be $42 billion in 2020. Calpine Brief at 8.) Yet even

with the huge cost and economic dislocation involved in

reducing emissions that currently are essential to our way

of life, there is no certainty that any level of greenhouse

gas emission reductions in the United States would

prevent adverse effects from global climate change, espe-

cially given the growing contribution to global atmospheric

loadings from other countries. Pet. App. A-83 — A-86. In its

decision denying the petition to regulate greenhouse gas

emissions from motor vehicles, EPA correctly observed

that this is an area where EPA must be cautious about

“using broadly worded statutory authority to regulate in

areas raising unusually significant economic and political

issues. ...” Pet. App. A-68, A-76, citing Brown & William-

son, 529 U.S. 120.

* For example, EPA's report to Congress under section 812 of the

Clean Air Act Amendments of 1990, The Benefits and Costs of the Clean

Air Act, 1970 to 1990, Oct. 1997, identified capital expenditures and

operating expenses that stationary sources incurred during the first 20

years of the Clean Air Act. Since most of the requirements and expendi-

tures for existing sources to comply with the CAA stem from SIPs

(which in turn implement NAAQS), these cost estimates give a sense of

the impact the existing NAAQS have had on businesses and the

economy. EPA estimates that capital expenditures for stationary

sources in the 1980s were $4-5 billion each year, and operating and

maintenance expenditures each year were between $5 and 9 billion. /d.

at A-10. Not surprisingly, EPA found that these costs have resulted in

increased prices of goods and decreased demand. /d. at A-24-25.

Petitioners claim that a favorable resolution of the

issues they present in this case “will not mandate regula-

tion of air pollutants associated with climate change, nor

will it dictate a particular answer to the question whether

such pollutants are endangering public health or welfare.”

Pet. Br. at 3. They also assert that the decision they are

seeking from the EPA, that greenhouse gas emissions

constitute air pollutants emitted by motor vehicles which

may reasonably be anticipated to endanger public health

or welfare, under CAA § 202(a)(1), 42 U.S.C. § 7521(a)(1),

is entirely separate from and has nothing to do with the

regulation of air pollutant emissions from stationary

sources under the NAAQS provisions and other station-

ary-source requirements of the Clean Air Act. Pet. Br. at

27-29. .

These arguments are disingenuous at best. The

question Petitioners present here — whether EPA has

authority to regulate greenhouse gases associated with

climate change under CAA section 202(a)(1), 42 U.S.C.

§ 7521(a1) — can be answered in the affirmative only if

(1) greenhouse gases, as they may affect global climate

change, are “air pollutants” as defined in CAA section

302(g) (a definition that applies to both mobile source and

stationary source provisions of the Act); and (2) the Admin-

istrator, in his judgment, determines that emissions of

greenhouse gases from motor vehicles cause or contribute

to air pollution “which may reasonably be anticipated to

endanger public health or welfare.” CAA § 202(a)(1), 42

U.S.C. § 7521(aX1). As to (1), Petitioners claim that an

affirmative answer is straightforward and unavoidable.

Pet. Br. at 8, 12-15. As to (2), Petitioners asserted in their

petition for writ of certiorari that global climate change is

“the most pressing environmental challenge of our time”

(Petition at 22), that there “can be no reasonable debate

about the exceptional importance of the problem of climate

change” (id. at 23), that the “scientific basis for concern is

well documented in the administrative record, including

through various official government reports” (id. at 23

n.10), that “air pollutants associated with climate change

are accumulating in the atmosphere at an alarming rate”

such that “the window of opportunity in which we can

mitigate the dangers posed by climate change is rapidly

closing” (id. at 25), that “a delay in implementing emission

reductions will result in increased extent and magnitude

of adverse impacts” (id.), and so forth. It is clear that

Petitioners believe that, if they succeed in convincing the

Court to order EPA to evaluate greenhouse gases as “air

pollutants” under section 202(a) of the Clean Air Act, an

“endangerment finding,” compelling regulation of new

motor vehicle emissions of greenhouse gases, will be

unavoidable.”

Likewise, Petitioners’ actions make it perfectly clear

that at least many of the Petitioners believe that succeed-

ing in the instant case would force EPA to apply the

stationary source provisions of Title I of the Clean Air Act

to non-vehicular greenhouse gas emissions, for purposes of

attempting to mitigate global climate change. As explained

* Some of the amici curiae supporting Petitioners are even more

forthcoming on this point. See, eg., Brief of Amicus Curiae State of

Delaware at 23 (“it is obvious that there are severe actual and immi-

nent dangers attributed to global climate change. ... EPA has a duty to

regulate such emissions.”); Brief of Amici Curiae Climate Scientists .. .

at 27 (evidence supporting an endangerment determination is “suffi-

cient” and “compelling”); Brief of Amici Curiae U.S. Conference of

Mayors at 28 n.49 (“the science of global warming points to only one

answer to [the endangerment] question”).

above, the trigger for development of the ambient air

quality standards for a substance, which are then imple-

mented through the elaborate NAAQS program, is that

the substance be an “air pollutant” the emissions of which

“cause or contribute to air pollution which may reasonably

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

CAA § 108(a)(1)(A). This statutorily required finding for

development of NAAQS is virtually identical to the endan-

germent finding for mobile sources under CAA § 202(a)(1)

that Petitioners clearly see as inevitable.”

Petitioners argue that EPA should not have consid-

ered the infeasibility of using the Clean Air Act’s station-

ary source regulatory provisions to control greenhouse gas

emissions for global climate change purposes in assessing

whether the Act authorizes EPA regulation of greenhouse

gases from motor vehicles, because, Petitioners claim, the

issues in the instant case are unrelated to potential

regulation of greenhouse gas emissions from stationary

sources. Pet. Br. 9, 28-29. This is particularly surprising,

given the past and pending actions of some of the Petition-

ers. In 2003, Massachusetts, Maine, and Connecticut filed

suit against EPA in U.S. District Court for the District of

Connecticut, seeking an order concluding that EPA al-

ready had made findings about the risks of global climate

change sufficient to create a mandatory duty for EPA to

list CO, as a criteria pollutant under CAA section 108,

triggering an obligation to promulgate NAAQS for CO.

* Accord, Brief of Amicus Curiae Calpine Corporation at 2 (“the

language of § 202(a)(1), 42 U.S.C. § 7521(a)(1), that triggers the process

of regulating motor vehicle emissions is identical to language elsewhere

in the CAA that initiates various processes for regulating emissions

from industrial sources.”).

Commonwealth of Massachusetts, et al. v. Horinko, D.

Conn. No. 3:03CV984(PCD). A portion of that complaint is

included in the Appendix to this brief as Appendix A, p.

App. 1.

When EPA issued its denial of the petition for rule-

making that is the subject of the instant case, the three

states dismissed their District of Connecticut case without

prejudice, concluding that “the scope of EPA’s authority”

“to regulate greenhouse gases” “is now better presented to

the D.C. Circuit.” See Appendix B, pp. App. 11-12. The

three states told the District Court that they “intend to re-

file this case upon a decision by the D.C. Circuit rejecting

EPA's position that it lacks authority to regulate green-

house gases (or a decision declining to reach the issue).”

Id. (These three states have not yet re-filed their com-

plaint, presumably because this appeal of the D.C. Cir-

cuit’s decision is pending.)

Similarly, earlier this year, 12 of the Petitioner states

and municipalities in the instant case filed a petition for

review in the U.S. Court of Appeals for the District of

Columbia Circuit challenging EPA’s promulgation of

revised New Source Performance Standards under CAA

§ 111, 42 U.S.C. § 7411, for electric utility, industrial, and

commercial boilers (“boiler NSPS”).” D.C. Cir. No. 06-1148,

consolidated with other petitions as Coke Oven Environ-

mental Task Force v. U.S. EPA, No. 06-1131 (and consoli-

dated cases). The states and municipalities filed a

statement of issues to be raised that listed, as one of their

two issues: “Does the United States Environmental Pro-

tection Agency (EPA) have the authority to regulate

* 71 Fed. Reg. 9865 (Feb. 27, 2006).

emissions of carbon dioxide from stationary sources under

section 111 of the Clean Air Act, 42 U.S.C. § 7411, based on

the effect of carbon dioxide on public health or welfare,

which encompasses, among other things, impacts on

climate and weather?” See Appendix C, p. App. 15. (Envi-

ronmental advocacy groups, including a number of the

Petitioners, filed a similar petition for review of the boiler

NSPS and a similar statement of issues. D.C. Circuit Case.

No. 06-1149; see also Appendix D, pp. App. 20-23.) In fact,

numerous parties who commented on the proposed boiler

NSPS, including a number of the Petitioners, argued that

the current knowledge of global climate change warrants a

conclusion that emissions of CO, and other greenhouse

gases from boilers “are reasonably anticipated to endanger

public health and welfare,” and therefore they must be

subject to emission limitations in the boiler NSPS. See 71

Fed. Reg. at 9869.

The parties to that litigation have since jointly asked

the D.C. Circuit to sever and hold in abeyance the portion

of the petitions for review claiming that EPA should have

published new source performance standards for green-

house gas emissions, because the question presented in

the case before this Court “regarding whether EPA has the

legal authority to regulate ... greenhouse gases under the

Clean Air Act may be dispositive of some or all of the

carbon dioxide and other greenhouse gas issue [sic] raised

by State and Environmental Group Petitioners in these

consolidated cases.” Appendix D, p. App. 23.

In short, many of the Petitioners have taken actions

that explicitly recognize the connection between a deter-

_maination of EPA’s authority and duties with respect to

greenhouse gas emissions from motor vehicles and EPA's

regulation of greenhouse gas emissions from stationary

sources. Petitioners’ suggestion that there is no legal

connection between the two should be rejected, and the

Court should find that it was reasonable for EPA, in

interpreting its authority under the Clean Air Act, to

consider whether regulation of greenhouse gas emissions

for purposes of mitigating global climate change makes

sense when applied to the regulatory authorities for both

mobile sources and stationary sources contained in the

Clean Air Act.

III. Congress Has Yet To Enact the Regulatory

Program Petitioners Ask this Court To Find.

In addition to looking at the entire Clean Air Act and

considering the incompatibility of the regulatory authori-

ties that Congress laid out for air pollutants in the Act

with the purpose of reducing global atmospheric loadings

of greenhouse gases, EPA also reasonably considered those

actions that Congress had taken with respect to climate

change and other similar issues. Pet. App. A-70 — A-75.

When faced with a different type of environmental con-

cern, depletion of the stratospheric ozone layer by man-

made chemicals, Congress added a whole new set of

provisions to the Clean Air Act, first as a separate subtitle

to Title I and later as an entirely new Title VI, rather than

concluding that the other Clean Air Act regulatory au-

_thorities were sufficient. Pet. App. A-71 — A-72.

Similarly, when Congress addressed the growing

concerns about “acid rain,” the deposition of acidic com-

pounds over a wide area of the northeastern United States

from long-distance transport of air pollutants, Congress

developed a whole new regulatory approach, enacted as

Title IV of the Clean Air Act Amendments of 1990 (42

U.S.C. ch. 85 subch. IV-A). Since the acid rain problem

was the result of total acid deposition rather than the

specific impacts of a particular emission source, Congress

addressed it through an emissions cap and emissions

trading system that would, in contrast to pre-existing Title

I regulatory authorities, allow for the reduction of total

acid deposition from numerous emission sources to be

achieved economically by controlling the most easily

controlled sources. See CAA §§ 401, 403-405, 42 U.S.C.

§§ 7651, 7651b-7651d; see also H.R. Rep. 101-490, pt. 1, at

356, A Legis. Hist. of the CAA Amendments of 1990, S. Prt.

No. 103-38, at 3021, 3388 (1993) (“1990 Legis. Hist.”).

These specific congressional responses to different types of

national or global atmospheric problems contrast starkly

with Petitioners’ claim that an even broader new climate

change program should be inferred from the definitions

section of the Act.”

* An amicus curiae brief filed by four former Administrators of

EPA makes the point that EPA traditionally has interpreted its Clean

Air Act authorities broadly to give it the flexibility to address emerging

air pollution problems. The examples that brief provides, however,

involve situations where Congress enacted specific provisions to deal

with the new problem, e.g., the provisions regulating ozone-depleting

substances, id. at 21-22, or situations where, although the particular

pollutant was not specifically identified by Congress as a concern, the

Clean Air Act already contained regulatory provisions that could be

used to address the emerging problem effectively, e.g., using existing

authority to regulate fuel additives to act quickly to reduce exposure to

airborne lead from leaded gasoline, id. at 10, or using the NAAQS

process to regulate ambient concentrations of a subset of particulate

matter believed to present a greater hazard to human health, id. at 24.

None of these examples involved forcing a whole new type of issue not

previously envisioned by Congress (such as depletion of the strato-

spheric ozone layer . . . or global climate change) into existing Clean Air

Act regulatory authorities that did not provide an effective means for

addressing that issue. Cf H.R. Rep. 101-490, pt. 1, at 167, 1990 Legis.

(Continued on following page)

Looking at the entire statute consistent with tradi-

tional tools of statutory interpretation also meant consid-

ering the fact that the only places in the Clean Air Act

(and other statutes that deal with related topics and

should be construed in pari materia) where Congress

specifically addressed global climate change was in provi-

sions seeking additional research and data, and encourag-

ing development of new technologies and policies, rather

than imposing any restrictions on emissions or similar

regulatory provisions. Pet. App. A-74 — A-76. In the years

leading up to its consideration of major amendments to the

Clean Air Act in 1990, Congress enacted several statutes

providing for research into global climate change concerns

associated with emissions of CO, and other substances.

None of these statutes authorized regulation of CO,

emissions.”

Hist. at 3181 (describing the need for the acid deposition provisions of

CAA Title IV: “The Clean Air Act was originally designed mainly to

reduce high pollution levels that tend to occur near major pollution

sources. It did not contemplate that long-distance transport of air

pollutants could cause widespread adverse impacts.”); see also id. at

159, 1990 Legis. Hist. at 3168 (explaining need for amendments in part

because “a number of serious new air pollution problems have emerged

that were not anticipated by the Clean Air Act Amendments of 1977.”).

* See, e.g., the 1978 National Climate Program Act, 15 U.S.C.

§ 2901, et seg., whose purpose was “to establish a national climate

program” to help “understand and respond to natural and man-induced

climate processes and their implications”; Title VII of the Energy

Security Act of 1980, which included provisions (42 U.S.C. §§ 8911-

8912) authorizing “a comprehensive study of the projected impact, on

the level of CO, in the atmosphere, of fossil fuel combustion, coal

conversion and related synthetic fuels activities authorized in this Act,

and other sources”; the Global Climate Protection Act of 1987, 15 U.S.C.

§ 2901 note (providing for the formulation of U.S. global climate change

policy by the President to be proposed to Congress).

In considering what became the 1990 CAA Amend-

ments, Congress considered but did not adopt proposed

amendments that would have mandated control of CO,

emissions and other substances associated with concerns

about global climate change. For example, during floor

debate on S.1630, the Environment and Public Works

Committee’s 1990 CAA Amendments bill, the Senate

dropped a provision that would have required automotive

CO, emission limits. See $.1630, 103d Cong. § 206 (1989),

1990 Legis. Hist. at 8036-38 (proposing a new CAA § 216

“Emissions of Carbon Dioxide from Vehicles”), deleted in a

substitute amendment to S.1630, see 1990 Legis. Hist. at

5178, 7248; see also S. Rep. 101-238 at 98-100, 1990 Legis.

Hist. 8338 at 8438-40." <

The Senate committee’s reported bill also contained

other provisions to regulate CO, to address concerns about

global climate change. The Senate committee’s bill, S.1630,

would have authorized EPA to list and regulate “manufac-

tured substances which are known or may reasonably be

anticipated to cause or contribute significantly to atmos-

pheric or climatic modification, including stratospheric

ozone depletion.” Jd. at 685, 1990 Legis. Hist. 8338 at 9025

(proposing to add a new section 504(b) to the Act). While

providing for regulations directed at depletion of ozone in

* See Pet. App. A-69 — A-70. Petitioners attempt to dismiss these

facts by citing case law noting that a failed legislative proposal could,

among other things, have resulted from the fact that existing legisla-

tion was believed to already address the issue. Pet. Br. at 21. In this

case, however, there are explicit indications to the contrary. For

example, Senator Chafee, the proposal’s main sponsor, reported “a

compromise” in which he “gave up” the CO, emission limits in section

216 of S.1630. 1990 Legis. Hist. 5189-90. See also Brief of Respondent

Utility Air Régulatory Group.

the stratosphere, that version of the bill also directed EPA

to designate “the global warming potential” of each listed

substance. Jd. at 686, 1990 Legis. Hist. 8338 at 9026

(proposing to add a new section 504(c) to the Act).

The Senate also considered amending the Clean Air

Act to require EPA to list and designate the global warm-

ing potential of products, and to consider regulating the

use of products based on their global warming potential, in

addition to their potential impact on stratospheric ozone

depletion. Jd. pp. 685-686, 1990 Legis. Hist. at 9025-26. In

the end, though, the Clean Air Act Amendments of 1990

only authorized listing and regulation of substances with

respect to “harmful effects on the stratospheric ozone

level.” CAA § 602(a), (b), 42 U.S.C. § 767la(a), (b). Al-

though section 602(e) of the Act as amended directs EPA to

publish, after notice and opportunity for public comment,

the “global warming potential” of each listed substance,

that section also contains a sentence (which was absent

from the Senate committee’s bill) stating that “[tlhe

preceding sentence [requiring publication of listed sub-

stances’ global warming potential] shall not be construed

to be the basis of any additional regulation under this

Act.” CAA § 602(e), 42 U.S.C. § 7671a(e).

The 1990 Clean Air Act Amendments also added

language to the Act directing EPA to conduct a “nonregula-

tory” program for addressing CO, and certain other sub-

stances. Section 103(g) of the Act directs EPA to “conduct a

basic engineering research and technology program to

develop, evaluate, and demonstrate nonregulatory strate-

gies and technologies for air pollution prevention.” CAA

§ 103(g), 42 U.S.C. § 7403(g). This nonregulatory program

is to include improvements in “nonregulatory strategies

and technologies for preventing or reducing” emissions

“from stationary sources, including fossil fuel power

plants.” CAA § 103(g)(1), 42 U.S.C. § 7403(g\1). Section

103(g) provides that “(njothing in this subsection shall be

construed to authorize the imposition on any person of air

pollution control requirements.” 42 U.S.C. § 7403(g).

Thus, Congress in 1990 considered amending the Act

to include provisions authorizing regulatory control of CO,

emissions from certain sources but chose not to enact any

such provisions. Rather, Congress enacted language in

sections 602(e) and 103(g) of the Act reflecting a legislative

decision not to authorize CO, emission controls and indi-

cating a belief that further information was needed before

legislating a new control regime.

Likewise, after the 1990 amendments to the CAA,

Congress enacted several non-regulatory laws related to

global climate change. The day after enactment of the

Clean Air Act Amendments of 1990, Congress passed the

Global Change Research Act of 1990, 15 U.S.C. § 2921, et

seq., which established a research program and included a

finding that: “Development of effective policies to abate,

mitigate, and cope with global change will rely on greatly

improved scientific understanding of global environmental

processes and on our ability to distinguish human-induced

from natural global change.” Jd. § 2931(a)(4).” Title XVI

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

” A few days later, Congress enacted the Global Climate Change

Prevention Act of 1990, 7 U.S.C. § 6701, et seqg., which provided for

research on the impact of global climate change on agriculture and

required a report to Congress providing “recommendations for actions

which may be taken to mitigate the negative effects of global climate

change. ...” Jd. at § 6702(c).

directed the Executive Branch to develop a plan “to

achieve to the maximum extent practicable and at least-

cost to the Nation ... the stabilization and eventual

reduction in the generation of greenhouse gases.” 42

U.S.C. §§ 13382(a), (g). It did not contain any provisions

for imposing limitations on emissions, however.” This

statute was intended to provide Congress with an assess-

ment of “the important technical and policy issues that

will enable us to make wiser decisions on more dramatic

and possibly higher cost action which should be under-

taken only in the context of concerted international ac-

tion.” H.R. Rep. 102-474, pt. 1, at 152 (1992), 1992

U.S.C.C.A.N. 1953, 1975.

Most recently, in the Energy Policy Act of 2005,

Congress established a number of specific federal policies

and programs to address global climate change, but again

none of its provisions impose or authorize mandatory

restrictions on emissions of greenhouse gases. Pub. L. No.

109-58, tit. XVI, §§ 1610(b)(1), (c)(1), 1611, 119 Stat. 595,

1109. In fact, in debating that act the Senate considered

and rejected a proposed amendment (Amendment No. 826,

introduced by Senators McCain and Liebermann) which

would have imposed mandatory limits on emissions of

greenhouse gases. See 151 Cong. Rec. S6878, S6892-96

(daily ed. June 21, 2005). That amendment was rejected

on the floor by a 38-60 margin. Vote 148, id. at S7029

(daily ed. June 22, 2005).

* Cf. section 1605(a) of the Energy Policy Act of 1992, 42 U.S.C.

§ 13385(a), which provides for a national aggregate inventory of each

greenhouse gas, while stating that the subsection “does not provide any

new data collection authority,” and § 16Q5(b), 42 U.S.C. § 13385(b),

which provides for voluntary reporting of CO, and other greenhouse gas

emissions and reductions.

These congressional actions indicate that, far from

relying on an extension of existing Clean Air Act regula-

tory programs for air pollutants to address concerns about

global climate change, Congress instead has addressed

global climate change in specific terms (although not as

aggressively as Petitioners would like). These considera-

tions support and confirm EPA’s assessment that Congress

did not intend, through a few words in the definition of

“air pollutant” and “welfare,” to authorize or compel EPA

to adopt regulations addressi. .g concerns about the global

climate and the potentially wide-ranging measures that

would be needed to mitigate greenhouse gas emissions.

See Brown & Williamson, 529 U.S. at 133 (“the meaning of

one statute may be affected by other Acts, particularly

where Congress has spoken subsequently and more

specifically to the topic at hand”); Erlenbaugh v. United

States, 409 U.S. 239, 244 (1972) (statutory provisions

dealing with the same subject-matter normally are con-

strued together to discern their meaning).

There is no indication that Congress expected EPA to

address global climate change using an ill-matched set of

regulatory programs intended to deal with local and

regional impacts of air pollutant emissions on ambient air

quality. EPA reasonably interpreted the definition of “air

pollutant” in light of the history of congressional action on

climate change. Pet. App. A-74 — A-76. Certainly nothing

about the legislative history of the Clean Air Act and

related enactments renders EPA's position “over the edge

of reasonable interpretation.” Whitman v. American

Trucking Ass’ns, 531 U.S. 457, 485 (2001).

CONCLUSION

For the reasons set forth above, the Court should

uphold EPA’s interpretation of its duties and authorities

under the Clean Air Act and EPA’s expert judgment that

regulation of greenhouse gas emissions from motor vehi-

cles for purposes of mitigating global climate change is

inappropriate at this time. While agreeing that climate

change is an important issue that warrants serious gov-

ernment consideration, CO, Litigation Group urges the

Court to decline Petitioners’ invitation to legislate a global

climate change mitigation program that Congress never

intended and indeed is still debating.

Respectfully submitted,

RUSSELL S. FRYE

FRYE LAW PLLC

3050 K Street, N.W. Suite 400

Washington, DC 20007-5108

™ (202) 572-8267 (tel)

(866) 850-5198 (fax)

rfrye@fryelaw.com

Counsel of Record for Intervenor-

Respondent CO, Litigation Group

Dated: October 24, 2006

Of Counsel:

DELL E. PERELMAN

Vice President and General Counsel

LESLIE A. HULSE

Assistant General Counsel

American Chemistry Council

1300 Wilson Boulevard

Arlington, VA 22209

RICHARD WASSERSTROM

AMERICAN FOREST & PAPER ASSOCIATION

1111 19th Street, N.W., Suite 800

Washington, DC 20036

Harry M. NG

General Counsel

RALPH J. COLLELI, JR.

AMERICAN PETROLEUM INSTITUTE

1220 L Street, N.W., 9th Floor

Washington, DC 20005

NICK GOLDSTEIN

STAFF ATTORNEY

AMERICAN ROAD AND TRANSPORTATION

BUILDERS ASSOCIATION

1219 28th Street N.W.

Washington, DC 20007

JAN S. AMUNDSON

Senior Vice President & General Counsel

QUENTIN RIEGEL

Vice President, Litigation & Deputy General Counsel

National Association of Manufacturers

1331 Pennsylvania Avenue, N.W.

Washington, DC 20004-1790

Rosin S. CONRAD

NATIONAL CHAMBER LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, DC 20062

Bos SLAUGHTER

President & General Counsel

NATIONAL PETROCHEMICAL & REFINERS ASSOCIATION

1899 L Street, N.W.

Washington, DC 20036

JOHN L. WITTENBORN

KELLEY DRYE COLLIER SHANNON

3050 K Street, N.W.

Suite 400

Washington, DC 20007

App. 1

Appendix A Complaint in D. Conn. seeking order

for EPA to list carbon dioxide as a “criteria”

pollutant under section 108 of the Clean Air Act

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

COMMONWEALTH OF

MASSACHUSETTS, STATE

OF CONNECTICUT, and

STATE OF MAINE,

Plaintiffs,

CHRISTINE TODD WHITMAN,

in her capacity as ADMINISTRATOR

of the UNITED STATES

ENVIRONMENTAL

PROTECTION AGENCY,

Defendant.

CIVIL ACTION

NO. 3:03CV984 (PCD)

Nm eee eee ee eee”

COMPLAINT

The Commonwealth of Massachusetts and the States

of Connecticut and Maine (Plaintiff States), acting by and

through their respective Attorneys General, bring this civil

action and allege as follows:

DESCRIPTION OF THE CASE

1. The Clean Air Act requires the Administrator of

the United States Environmental Protection Agency to

regulate common air pollutants that, due to their presence

in ambient air from emissions from numerous and varied

sources, cause or contribute to air pollution that endangers

App. 2

public health or welfare. Section 108 of the Act initiates

the regulation of each such pollutant that, in the judgment

of the Administrator, satisfies those criteria, by requiring

her to include it in a “list.”

2. Carbon dioxide, a “greenhouse gas” generated by

the combustion of fossil fuels, is the dominant cause of

global warming and is an “air pollutant” under the Act. In

May .2002, the United States submitted to the United

Nations a formal, comprehensive report that set forth,

among other things, the official position of the United

States on the likely impacts of global warming. The report

concluded that global warming will likely produce wide-

ranging and potentially devastating impacts to public

health and welfare.

3. The EPA played the lead role among numerous

federal agencies or departments, and the Executive Office

of the President, in coordinating the preparation, review

and approval of that report. Further, the EPA itself fully

reviewed and officiaily adopted the report's findings

regarding the likely impacts of global warming.

4. Notwithstanding having made a judgment that

carbon dioxide causes or contributes to global warming

that endangers public health and welfare, the Administra-

tor has failed to perform her mandatory duty under

Section 108 of the Act, namely to “list” carbon dioxide and,

thereby, initiate its regulation under the Act. Rather, the

Administrator supports implementation of “voluntary”

greenhouse gas reductions and advocates using “other

creative ways” to address the dangers posed by global

warming.

5. The Administrator’s failure to “list” carbon dioxide

constitutes a failure to perform a nondiscretionary duty

App. 3

and is a violation of the Act for which Plaintiff States are

entitled to relief. In this action, the Plaintiff States seek

an order compelling the Administrator to commence the

regulatory process for carbon dioxide by adding it to the

list of air pollutants established under Section 108.

JURISDICTION AND VENUE

6. This Court has jurisdiction of the subject matter

of this action pursuant to 42 U.S.C. §$§ 7604(a)(2), 28

U.S.C. §§ 1331, 1346(a)(2), and 1361.

7. Venue is proper in this District pursuant to 28

U.S.C. §§ 1391(b) and (e), and 1402(a)(1).

8. Each of the Plaintiff States brings this action both

in its own capacity as a sovereign State and as parens

patriae on behalf of its citizens. In addition to seeking to

preserve and protect their own economic and property

interests, the Plaintiff States also seek to preserve and

protect quasi-sovereign interests on behalf of their citi-

zens. Specifically, the Plaintiff States seek to secure all

benefits to human health and welfare due to their citizens

under the federal Clean Air Act and to protect general

economic interests on behalf of their citizens.

STATUTORY BACKGROUND

9. The Clean Air Act establishes a regulatory scheme

designed to protect and enhance the quality of the nation’s

air so as to promote the public health and welfare and the

productive capacity of its population. 42 U.S.C. § 7401(b\1).

App. 4

10. The Clean Air Act regulates air pollution through

a complex array of mechanisms that are aimed at regulat-

ing types of pollutants or pollution (such as “criteria

pollutants,” hazardous pollutants, acid rain, or strato-

spheric ozone) or categories of sources (such as mobile or

stationary). One of the most important of these mechanisms

is the use of National Ambient Air Quality Standards

(NAAQS) to regulate common and widely-distributed

pollutants on the basis of information on their health

and/or environmental effects. Such pollutants are com-

monly referred to as “criteria pollutants.”

11. Regulation of a criteria pollutant starts with its

being “listed” pursuant to Section 108(a)(1) of the Act, 42

U.S.C. § 7408(a)(1). Section 108(a\1) mandates that “the

Administrator shall ... publish, and shall from time to

time thereafter revise, a list which includes each air

pollutant — (A) emissions of which, in [the Administrator’s]

judgment, cause or contribute to air pollution which may

reasonably be anticipated to endanger public health or

welfare; (B) the presence of which in the ambient air

results from numerous or diverse mobile or stationary

sources; and (C) for which air quality criteria had not been

issued before December 31, 1970, but for which [the

Administrator] plans to issue air quality criteria under

this section.

12. After a criteria pollutant is “listed,” EPA must

set air quality criteria, 42 U.S.C. § 7408(a)(2), and ambient

air quality standards, 42 U.S.C. § 7409(aX2), which are

the levels of each listed pollutant in the ambient air that

EPA deems to be protective of public health (primary

NAAQS) and welfare (secondary NAAQS), 42 U.S.C.

§ 7409(b). Ultimately, implementation of the ambient air

quality standards occurs through federally approved state

App. 5

plans or federal implementation plans. 42 U.S.C.

$§ 7410(a) and (c).

13. Section 302(g) of the Act, 42 U.S.C. § 7602(g),

broadly defines “air pollucant” to include “any air pollution

agent or combination of such agents, including any physi-

cal, for] chemical .. . substance or matter which is emitted

into or otherwise enters the ambient air.”

14. Section 302(h) of the Act, 42 U.S.C. § 7602(h),

defines effects on “welfare” to include, among other things,

“effects on soils, water, crops, vegetation, manmade

materials, animals, wildlife, weather, visibility, and

climate, damage to and deterioration of property, and

hazards to transportation, as well as effects on economic

values and on personal comfort and well-being, whether

caused by transformation, conversion, or combination with

other air pollutants.”

15. Section 302(z) of the Act, 42 U.S.C. § 7602(z)

defines “stationary source” to be “any source of an air

pollutant except those emissions resulting directly from an

internal cembustion engine for transportation purposes or

from a nonroad engine or nonroad vehicle as defined in

section 7550 of this title.”

16. Section 304(aX2) of the Clean Air Act, 42 U.S.C.

§ 7604(a)(2), provides that any person may commence a

civil action on his own behalf against the Administrator

based on an alleged failure of the Administrator to perform

any nondiscretionary act or duty under the Act.

CAUSE OF ACTION

Failure to Perform a Nondiscretionary

Duty Pursuant to CAA § 304(a)(2)

114. The Plaintiff States reallege and incorporate by

reference the allegations of paragraphs 1-113 as if they

were restated in full.

115. Carbon dioxide is a “physical, [or] chemical .. .

substance or matter” within the meaning of Section 302(g)

of the Act, 42 U.S.C. § 7602(g). -

116. The human activities set forth in paragraph 24,

above, produce carbon dioxide as a result of the burning of

fossil fuels. Such carbon dioxide is “emitted into or other-

wise enters the ambient air” within the meaning of Section

302(g) of the Act, 42 U.S.C. § 7602(g).

117. Carbon dioxide is an “air pollutant” within the

meaning of Section 302(g) of the Act, 42 U.S.C. § 7602(g).

118. The Administrator has made a “judgment” that

emissions of carbon dioxide cause or contribute to air

pollution which may reasonably be anticipated to endan-

ger public health or welfare within the meaning of Section

108(a)(1)(A) of the Act, 42 U.S.C. § 7408(a)(1)(A).

119. Power plants and industrial facilities that

generate electricity from the burning of fossil fuels are

“stationary sources” of carbon dioxide within the meaning

of Sections 108(aX1)(B) and 302(z) of the Act, 42 U.S.C.

§§ 7408(a)(1)(B), 7602(z).

App. 7

120. Internal combustion engine vehicles, such as

passenger cars, trucks, motorcycles and buses are “mobile

sources” of carbon dioxide emissions within the meaning of

Section 108(aX1)(B).

121. Carbon dioxide is present in the ambient air as

a result of “numerous or diverse mobile or stationary

sources,” within the meaning of Section 108(a)(1)(B) of the

Clean Air Act, 42 U.S.C. § 7408(a1)(B).

122. By failing to revise the list of air pollutants

under Section 108(a)(1) of the Act, 42 U.S.C. § 7408(a)(1),

to include carbon dioxide, the Administrator has failed to

perform a nondiscretionary duty within the meaning of

Section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2).

123. By so violating Section 304(a)(2) of the Clean

Air Act, 42 U.S.C. § 7604(a\(2), EPA is unlawfully increas-

ing the likelihood of harming the economic interests of the

Plaintiff States, is unlawfully increasing the likelihood

and severity of damage to property owned by each of the

Plaintiff States, is unlawfully denying residents of each of

the Plaintiff States the benefits due them under the

. federal Clean Air Act, and is unlawfully subjecting resi-

dents of each of the Plaintiff States to increased risks of

harm to human health, welfare, and general economy that

are associated with the continued unregulated emissions

of carbon dioxide.

-PRAYER FOR RELIEF

WHEREFORE, the Plaintiff States request that this

Honorable Court:

1. Order the Administrator to revise the list of air

pollutants pursuant to Section 108(a)(1) of the

Act, 42 U.S.C. § 7408(a)(1), to include carbon di-

oxide.

Award the Plaintiff States their costs of this ac-

~ “App. 8

tion and attorneys’ fees; and

Grant such other relief as the Court deems just

and proper.

Respectfully Submitted,

THOMAS F. REILLY

ATTORNEY GENERAL

COMMONWEALTH OF

MASSACHUSETTS

James R. Milkey*

William L. Pardee*

Carol Iancu*

Assistant Attorneys General

Environmental Protection

Division

200 Portland Street, 3rd Floor

Boston, Massachusetts 02114

(617) 727-2200

RICHARD BLUMENTHAL

ATTORNEY GENERAL

STATE OF CONNECTICUT

Kimberly Massicotte

Federal Bar No. ct04111

Matthew I. Levine

Federal Bar No. ct18898

Assistant Attorneys General

P.O. Box 120

55 Elm Street

Hartford, CT 06141-0120

(860) 808-5250

App. 9

G. STEVEN ROWE

ATTORNEY GENERAL

STATE OF MAINE

Gerald D. Reid*

Assistant Attorney General

Department of the

Attorney General

State House Station #6

Augusta, Maine 04333-0006

(207) 626-8545

*Motion for Admission Pro Hac

Vice pending

Dated: June 4, 2003

App. 10

Appendix B Plaintiffs’ notice of dismissal of

D. Conn. case seeking order for EPA to list carbon

dioxide as a “criteria” pollutant under section 108

of the Clean Air Act, in light of pending Commonwealth

of Massachusetts v. EPA D.C. Circuit case

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

COMMONWEALTH OF

MASSACHUSETTS, STATE

OF CONNECTICUT, and

STATE OF MAINE,

Plaintiffs,

eee eee ee”

™ ) CIVIL ACTION

MARIANNE L. HORINKO, ) NO. 3:03CV984 (PCD)

in her capacity as ACTING )

ADMINISTRATOR of the

UNITED STATES

ENVIRONMENTAL

PROTECTION AGENCY,

Defendant.

Nee eee ee

PLAINTIFFS’ NOTICE OF DISMISSAL

WITHOUT PREJUDICE

Pursuant to Rule 41(a) of the Federal Rules of Civil

Procedure, plaintiffs Commonwealth of Massachusetts and

the States of Connecticut and Maine (collectively, the

Plaintiffs), acting by and through their respective Attor-

neys General, notify this Court that they are dismissing

their action without prejudice. As background to this

notice, the Plaintiffs state as follows:

App. 11

In 1999, various environmental groups filed

an administrative petition requesting EPA

to regulate the emission of carbon dioxide

and other greenhouse gases from cars and

other “mobile sources” pursuant to Section

202 of the Clean Air Act. EPA’s inaction on

this petition (“the 202 Petition”) led two of

the petitioners and the Sierra Club to file a

law suit in August of 2002 alleging that EPA

had unreasonably delayed a ruling on the

petition. On August 28, 2003 — four years af-

ter the 202 Petition was submitted and one

year after the “unreasonable delay” suit was

filed - EPA denied the 202 Petition. In that

denial, EPA formally announced for the first

time its position that it has no jurisdiction

under the Clean Air Act to regulate green-

house gases, in the process “withdrawing”

formal statements issued to the contrary in

1998, 1999, and 2000.

On August 28, 2003, the very same day that

it denied the 202 Petition, EPA served a Mo-

tion to Dismiss this lawsuit, in which EPA

highlights its “recent” action on the 202 Pe-

tition. As one of the grounds for its motion,

EPA argued that since it had now ruled that

it had no authority to regulate greenhouse

gases and since a challenge to its denial of

the 202 Petition must be filed in the Court of

Appeals for the D.C. Circuit, this Court

lacks jurisdiction to grant the relief the

Plaintiffs are seeking in this action. The de-

fendant has not filed an Answer or a Motion

for Summary Judgment.

EPA’s newly-minted position that it lacks ju-

risdiction to regulate greenhouse gases was

App. 12

formulated in the context of the ongoing liti-

gation and its issuance was plainly driven

by the agency’s need to respond to the Plain-

tiffs’ Complaint. The new position is there-

fore not entitled to any deference. See e.g.,

Bowen v. Georgetown University Hosp., 488

U.S. 204, 212-13, 109 S.Ct. 468, 473-74

(1988). Without conceding that this Court

lacks jurisdiction to review the scope of

EPA’s authority, however, the Plaintiffs

agree that that issue is now better presented

to the D.C. Circuit. In fact, the Plaintiffs

themselves intend to file such a challenge.

4. Given these circumstances, the Plaintiffs

-hereby give notice pursuant to Rule 41(a) of

the Federal Rules of Civil Procedure that

they are dismissing their present action

without prejudice. The Plaintiffs intend to

re-file this case upon a decision by the D.C.

Circuit rejecting EPA’s position that it lacks

authority to regulate greenhouse gases (or a

decision declining to reach the issue).

For these reasons, Plaintiffs hereby provide notice in

accordance with Rule 41(a) of the Federal Rules of Civil

Procedure that they have dismissed their action without

prejudice.

Respectfully Submitted,

THOMAS F. REILLY

ATTORNEY GENERAL

COMMONWEALTH OF

MASSACHUSETTS

By: /s/ James R. Milkey / by KM

James R. Milkey

Federal Bar No. ct24900

By: /s/

App. 13

William L. Pardee

Federal Bar No. ct24901

Carol Iancu

Federal Bar No. ct24902

Assistant Attorney General

Environmental Protection Division

Massachusetts Office of the

Attorney General

200 Portland Street, Third Floor

Boston, MA 02114

Phone: (617)727-2200

Fax: (617)727-9665

RICHARD BLUMENTHAL

ATTORNEY GENERAL

STATE OF CONNECTICUT

Kimberly Massicot!

Kimberly Massicotte

Federal Bar No. ct04111

Matthew I. Levine

Federal Bar No. ct 18898

Assistant Attorneys General

P.O. Box 120

55 Elm Street

Hartford, CT 06141-0120

(860) 808-5250

G. STEVEN ROWE

ATTORNEY GENERAL

STATE OF MAINE

App. 14

By: /s/_Gerald D. Reid /by KM

Gerald D. Reid

Federal Bar No. ct24903

Assistant Attorney General

Department of the Attorney General

State House Station #6

Augusta, Maine 04333-0006

(207) 626-8545

Dated: September 3, 2003

App. 15

Appendix C State Petitioners’ Statement of Issues

in D.C. Circuit case challenging EPA failure to

include greenhouse gas emission limitations in

New Source Performance Standards for boilers

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

COKE OVEN

ENVIRONMENTAL

TASK FORCE,

)

Petitioner, ‘

v. ) Case No. 06-1131

UNITED STATES (and consolidated cases)

)

ENVIRONMENTAL

PROTECTION AGENCY,

ET AL.,

Respondents.

NON- O OF

PETITIONERS STATE OF NEW YORK, ET AL.

Petitioners State of New York, et al. in Case No. 06-

1148, provide the following nonbinding statement of issues

they intend to raise in this case:

1. Does the United States Environmental Protection

Agency (EPA) have the authority to regulate emissions of

carbon dioxide from stationary sources under section 111

of the Clean Air Act, 42 U.S.C. § 7411, based on the effect

of carbon dioxide on public health or welfare, which

encompasses, among other things, impacts on climate and

weather?

App. 16

2. Did EPA act unlawfully or arbitrarily in setting

the new source performance standards for emissions of

sulfur dioxide and nitrogen oxides from electric utility

steam generating units at levels that can be achieved

without application of the best system of emissions reduc-

tion that has been adequately demonstrated?

Dated: May 26, 2006

FOR THE STATE

OF NEW YORK

ELIOT SPITZER

Attorney General

CAITLIN HALLIGAN

Solicitor General

By: /s/ J. Jared Snyder

PETER LEHNER

J. JARED SNYDER

Assistant Attorneys

General

Environmental

Protection Bureau

The Capitol

Albany, New York

12224

(518) 474-8010

Respectfully submitted,

FOR THE STATE OF

CALIFORNIA and

CALIFORNIA AIR

RESOURCES BOARD

BILL LOCKYER

Attorney General

By: /s/ Ken Alex (by JJS)

KEN ALEX

Deputy Attorney General

California Department

of Justice

1515 Clay Street,

20th floor P

P.O. Box 70550

Oakland, CA 94612

(510) 622-2137

App. 17

FOR THE STATE

OF CONNECTICUT

RICHARD

BLUMENTHAL

Attorney General

By: /s/ Kimberly Massicotte

(by JJS)

KIMBERLY

MASSICOTTE

MATTHEW LEVINE

Assistant Attorneys

General

P.O. Box 120

55 Elm Street

Hartford, Connecticut

06141-0120

(860) 808-5250

FOR THE

COMMONWEALTH

MASSACHUSETTS

THOMAS F. REILLY

Attorney General

By: /s/ James R. Milkey

(by JJS)

JAMES R. MILKEY

WILLIAM L. PARDEE

Assistant Attorney

General

Environmental

Protection Division

One Ashburton Place

Boston, Massachusetts

02108

(617) 727-2200

FOR THE STATE

OF MAINE

G. STEVEN ROWE

Attorney General

By: /s/ Gerald D. Reid

(by JJS)

GERALD D. REID

Assistant Attorney

General

Department of the

Attorney General

State House Station #6

Augusta, Maine

04333-0006

(207) 626-8800

FOR THE STATE OF

NEW MEXICO

PATRICIA A. MADRID

Attorney General

By: /s/ Stephen R. Farris

(by JJS)

STEPHEN R. FARRIS

Assistant Attorney

General

P.O. Drawer 1508

Santa Fe, New Mexico

87504-1508

(505) 827-6010

App. 18

FOR THE STATE

OF OREGON

HARDY MYERS

Attorney General

By: /s/ Philip Shradle

(by JJS)

PHILIP SHRADLE

Special Counsel to the

Attorney General

RICHARD M.

WHITMAN

Assistant Attorney

General

1162 Court St. N.E.

Salem, Oregon 97301

FOR THE STATE OF

VERMONT

WILLIAM H.

SORRELL

Attorney General

By: /s/ Kevin O. Leske

(by JJS)

KEVIN O. LESKE

Assistant Attorney

General

Office of the Attorney

General

109 State Street

Montpelier, VT

05609-1001

(802) 828-3186

FOR THE STATE OF

RHODE ISLAND

PATRICK C. LYNCH

Attorney General

Tricia K. Jedele

(by JJS)

TRICIA K. JEDELE

Special Assistant

Attorney General

Department of

Attorney General

150 South Main Street

Providence,

Rhode Island 02903

401-274-4400 ext. 2400

FOR THE STATE OF -

WISCONSIN

PEGGY A.

_ LAUTENSCHLAGER

Attorney General

By: /s/ Thomas J. Dawson

(by JJS)

By: /s/

THOMAS J. DAWSON

Assistant Attorney

General

Wisconsin Department

of Justice

P.O. Box 7857

Madison, Wisconsin

53707-7857

(608) 266-0770

App. 19

FOR THE DISTRICT FOR THE CITY OF

OF COLUMBIA NEW YORK

ROBERT J.

SPAGNOLETTI ae

Attorney General Corporation Counsel of

TODD S. KIM the City of New York

Solicitor General

By: /s/ Donna M. Murasky _ By: /s/ Christopher G. King

(by JJS) (by JJS)

DONNA M. CHRISTOPHER G.

MURASKY KING

Senior Assistant Assistant Corporation

Attorney General Counsel

Office of the Solicitor 100 Church Street

General New York, New York

441 Fourth Street, N.W. 10007

6th Floor So. (212) 788-1145

Washington, D.C. 20001

(202) 724-5667 &

727-6252

KIMBERLY

KATZENBARGER

Assistant Attorney

General

51 N Street, N.E.

Washington, D.C.

20002

(202) 535-2608

App. 20

Appendix D Joint motion to hold portion of New

Source Performance Standards petition for review

in abeyance pending outcome of Commonwealth of

Massachusetts v. EPA, Supreme Court No. 05-1120

BRIEFING AND ORAL ARGUMENT

NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

COKE OVEN

ENVIRONMENTAL

TASK FORCE, et al.,

Petitioners,

Docket No. 06-1131

(and consolidated cases)

Vv.

UNITED STATES

ENVIRONMENTAL

PROTECTION

AGENCY, et al.,

Respondents.

ee ee ee ee ee ee

JOINT MOTION TO SEVER PORTIONS

F N -1148 06-1149

AND HOLD IN ABEY. E .

Petitioners Environmental Defense, Sierra Club, and

Natural Resources Defense Council (collectively “Envi-

ronmental Group Petitioners”); the States of New York,

California, Connecticut, Maine, New Mexico, Oregon,

Rhode Island, Vermont, and Wisconsin, the Common-

wealth of Massachusetts, the District of Columbia and the

City of New York (collectively “State Petitioners”) and

Respondents United States Environmental Protection

App. 21

Agency, and Stephen L. Johnson, in his capacity as Admin-

istrator, United States Environmental Protection Agency

(collectively “EPA”), jointly move this Court to sever the

first issue raised in Case Nos. 06-1148 and 06-1149,

relating to carbon dioxide and other greenhouse gas

emissions, assign that issue its own case number, and hold

this severed case in abeyance pending action by the

Supreme Court in Commonwealth of Massachusetts uv.

EPA, 415 F.3d 50, 58 (D.C. Cir. 2005), cert. granted, 2006

WL 1725113 (Jun. 26, 2006). See infra paragraph 5.

This joint motion reflects a partial resolution of the

differences between the moving parties with respect to

EPA’s pending Motion to Hold the Consolidated Cases in

Abeyance and Remand the Record filed on June 14, 2006.

Specifically, the moving parties have reached agreement

on a joint proposal to defer briefing of issues relating to

carbon dioxide and other greenhouse gas emissions until

after the Supreme Court decides the Massachusetts case

as described above and in paragraph 5, infra.

The moving parties have not reached agreement,

however, on whether the remaining issues raised by these

petitions, concerning the emission standards for sulfur

dioxide (“SO2”) and nitrogen oxides (“NOx”), should be

stayed. The State and Environmental Group Petitioners

believe that issues regarding the adequacy of the S02 and

NOx standards should be briefed now, while EPA believes

those issues should be deferred until EPA resolves the

petitions for reconsideration relating to other technical

aspects of the final rule. Accordingly, that question re-

mains before the Court in the context of EPA’s pending

motion of June 14, 2006.

App. 22

In support of the joint motion, the parties state:

1. Five separate petitions, now consolidated, were filed

in April 2006 by the Coke Oven Environmental Task Force,

Council of Industrial Boiler Owners, Utility Air Regulatory

Group, Environmental Group Petitioners, and State Peti-

tioners. Petitioners seek review of EPA’s final rule entitled,

“Standards of Performance for Electric Steam Generating

Units, Industrial-Commercial-Institutional Steam Generat-

ing Units, and Small Industrial-Commercial-Institutional

Steam Generating Units,” 71 Fed. Reg. 9,866 (Feb. 27,

2006). This regulation establishes new emissions stan-

dards for nitrogen oxides, sulfur dioxide, and particulate

matter for certain types of steam generating units pursu-

ant to EPA’s authority under Clean Air Act section

111(b)(1)(B), 42 U.S.C. § 7411(b)(1)(B). In taking this final

action, EPA also declined to establish standards for carbon

dioxide and other greenhouse gas emissions from these

sources.

2. On June 14, 2006, EPA filed a Motion to Hold the -

Consolidated Cases in Abeyance and Remand the Record.

Industry Petitioners consented to EPA’s motion. On June

26, 2006, State and Environmental Croup Petitioners filed

a response opposing in part the relief EPA requested.

Specifically, these petitioners opposed EPA’s request for a

remand of the administrative record and a stay of their

petitions challenging EPA's decision not to regulate carbon

dioxide and other greenhouse gas emissions as well as the

emission standards established for sulfur dioxide and

nitrogen oxides in the final rule. Opp. at 1-2. State and

Environmental Group Petitioners did not oppose a stay of

Industry Petitioners’ cases for seven months to allow EPA

to complete the administrative reconsideration process or

a stay of Environmental Group Petitioners’ challenge to

App. 23

particulate matter emission standards. Opp. at 12. EPA’s

reply in support of its motion is due on July 10, 2006.’

3. On June 26, 2006, the Supreme Court granted

certiorari in Commonwealth of Massachusetts v. EPA, 415

F.3d 50, 58 (D.C. Cir. 2005), cert. granted, 2006 WL

1725113 (Jun. 26, 2006). All of the State and Environ-

mental Group Petitioners (with the exception of the State

of Wisconsin) are parties in the Massachusetts case.

4. The question presented in the Massachusetts

certiorari petition regarding whether EPA has the legal

authority to regulate to greenhouse gases under the Clean

Air Act may be dispositive of some or all of the carbon

dioxide and other greenhouse gas issue raised by State

and Environmental Group Petitioners in these consoli-

dated cases. See Opp. Exs. D, E (Non-Binding Statement

of Issues filed in Case Nos. 06-1148 and 06-1149).

5. Because of this change in circumstances, the

parties now jointly move that the issue related to regula-

tion of carbon dioxide and other greenhouse gas emissions

raised in Case Nos. 06-1148 and 06-1149 be severed from

the consolidated cases, given a new case number, and held

in abeyance until the Supreme Court issues a decision in

the Massachusetts case.’ Within 30 days of a decision in

’ On June 28, 2006, EPA filed an unopposed motion for a one week

extension of its deadline to file its reply brief due to severe flooding in

Washington D.C. that had closed the offices of EPA. The Court has not

yet acted on EPA’s motion. Pursuant to Circuit Rule 27(h)(4), the time

for filing of its reply is automatically extended until the Court acts.

* This joint motion does not alter EPA’s motion to hold the Industry

Petitioners’ cases (Case Nos. 06-1131, 06-1154, 06-1155) in abeyance for

seven months to allow EPA to complete the administrative reconsidera-

tion process, which has been consented to by all Petitioners.

App. 24

the Massachusetts case, the parties will advise the court

on how the severed case should proceed in light of the

Supreme Court’s ruling.

6. If the Court grants the relief requested in para-

graph 5, supra, EPA will withdraw its request to remand

the record made as part of its June 14, 2006 motion.

However, EPA reserves the right to request a remand of

the administrative record after the Supreme Court rules

on the Massachusetts case and State and Environmental

Petitioners reserve the right to object to such a request.

7. If the Court declines to grant the parties’ joint

motion herein, EPA renews it request to remand the

record for the reasons stated in its June 14, 2006 motion

and its reply brief filed separately today. State and Envi-

ronmental Petitioners object to EPA’s request for the

reasons stated in their June 26, 2006 opposition.

8. The parties continue to disagree on how to proceed

with the remaining issues regarding the NOx and SO2

standards raised in Case Nos. 06-1148 and 06-1149. EPA

intends to further address this disagreement in the con-

text of its reply papers on the June 14, 2006 motion. In

view of the change of circumstances occasioned by the

Supreme Court action, EPA has no objection to allowing

the State and Environmental Petitioners to file a surreply

not to exceed 5 pages by July 17, 2006.

WHEREFORE, the parties respectfully request that

the Court: (1) sever issue no. 1 identified in the Non-

Binding Statement of Issues filed in Case Nos. 06-1148 and

06-1149 from these consolidated cases and assign the

severed portion a separate docket number; (2) order this

severed portion to be held in abeyance until the Supreme

Court issues a decision in Commonwealth of Massachusetts

App. 25

v. EPA, 415 F.3d 50, 58 (D.C. Cir. 2005), cert. granted, 2006

WL 1725113 (Jun. 26, 2006); (3) order the parties to file a

report in the severed case advising the Court of their

views on how the litigation should proceed within 30 days

after the abeyance period expires, and (4) on the condition

that the above relief is granted by the Court, deem EPA’s

Motion to Hold the Consolidated Cases in Abeyance and

Remand the Record withdrawn, without prejudice, to the

extent it seeks voluntary remand of the administrative

record.

FOR ENVIRONMENTAL GROUP PETITIONERS:

Dated: 7/10/06 /s/ Jim Pew (by LNC)

JAMES SAMUEL PEW

Earthjustice Legal Defense Fund

1625 Massachusetts Avenue, NW

Suite 702 7

Washington, DC 20036-2212

DAVID G. BOOKBINDER

Sierra Club

408 C Street, NE

Washington, DC 20002

Dated: 7/10/06 /s/ David Doniger (by LNC)

DAVID DONIGER

Natural Resources Defense Council

1200 New York Avenue, NW

Suite 400

Washington, DC 20005

App. 26

FOR STATE PETITIONERS:

Dated: 7/10/06 /s/ Jared Snyder (by LNC)

J. JARED SNYDER

Attorney General’s Office,

State of New York

The Capitol

New York State Department of Law

Albany, NY 12224-0341

KEN ALEX

California Department of Justice

P.O. Box 70550

Oakiand, CA 94612

KIMBERLY P. MASSICOTTE

Attorney General’s Office,

State of Connecticut

55 Elm Street -

P.O. Box 120

Hartford, CT 06141-0120

GERALD D. REID

Attorney General’s Office,

State of Maine

6 State House Station

111 Sewall Street

Augusta, ME 04333-0006

STEPHEN ROBERT FARRIS

Attorney General’s Office,

State of New Mexico

P.O. Drawer 1508

Bataan Memorial Building

Santa Fe, NM 87504

App. 27

PHILIP SCHRADLE

Attorney General’s Office,

State of Oregon

Office of General Counsel

1162 Court Street, NE

100 Justice Building

Salem, OR 97310

TRICIA K. JEDELE

Attorney General’s Office,

State of Rhode Island

150 South Main Street

Providence, RI 02903

KEVIN LESKE

Attorney General’s Office,

State of Vermont

109 State Street

Montpelier, VT 05609-1001

THOMAS J. DAWSON

Wisconsin Department of Justice

P.O. Box 7857

Madison, WI 53707-7857

JAMES R. MILKEY

Attorney General’s Office,

Commonwealth of Massachusetts

(Environmental! Protection Division)

One Ashburton Place, 18th Floor

Boston, MA 02108

DONNA M. MURASKY

Senior Assistant Attorney General

Office of the Attorney General,

District of Columbia

(Appellate Division)

441 4th Street, NW Sixth Floor

Washington, DC 20001-2714

FOR RESPONDENTS:

Dated: 7/10/06 /s/

App. 28

CHRISTOPHER GENE KING

Corporation Counsel’s Office,

City of New York

New York City Law Department

100 Church Street

New York, NY 10007

Lily N. Chi

LILY N. CHINN

U.S. Department of Justice

Environment & Natural Resources

Division

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-0135

Fax: (202) 514-8865

Email: lily.chinn@usdoj.gov

JON M. LIPSHULTZ

U.S. Department of Justice

Environment & Natural Resources

Division

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

Tel: (202) 514-2191

Fax: (202) 514-8865

Email: jon.lipshultz@usdoj.gov

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