Respondents Brief — Massachusetts v. EPA

AI2B

No, 05-1120

4n the Supreme Court of the &

COMMONWEALTH OF MASSACHUSETTS. etal.

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.

Respondents.

On Writ of Certiorari to the United States Court of Appeals

awe the District of Columbia Circuit

——

a

BRIEF FOR THE RESPONDENT STATES OF

MICHIGAN, NORTH DAKOTA,

UTAH, SOUTH DAKOTA, ALASKA,

BANEAS, NEDRASEA, TEXAS, AND OHIO

Michael A A. ny

Michigan Attorney General

Thomas L. Casey

Michigan Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, MI 48909

Telephone: (517) 373-1124

Alan F. Hoffman

Neil D. Gordon

Assistant Attorneys General

Attorneys for the State of

Michigan

(Additional Counsel Listed Inside)

=

- uP) bt o vee

i a

CS) Bes. 7

ao

(Additional Counsel)

FOR THE STATE OF

NORTH DAKOTA

WAYNE STENEHJEM

Attorney General

Lyle Witham

Assistant Attorney General

500 North 9" Street

Bismarck, ND 5850!

(701) 328-3640

FOR THE STATE OF

UTAH

MARK L. SHURTLEFF

Attorney General

Fred G. Nelson

Assistant Attorney General

160 East 300" South, 5" FI.

Post Office Box 140873

Salt Lake City, UT 84114

(801) 366-0285

FOR THE STATE OF

SOUTH DAKOTA

LAWRENCE E. LONG

Attorney General

1302 E. Highway 14

Suite |

Pierre, SD 5750]

(605) 773-3215

FOR THE STATE OF

ALASKA

DAVID W. MARQUEZ

Attorney General

P.O. Box 110300

Juneau, Alaska 99811

(907) 269-5100

FOR THE STATE OF

KANSAS

PHIL KLINE

Attorney General

David W. Davies

Deputy Attorney General

120 SW Tenth Avenue

Topeka, KS 66612-1597

(785) 296-2215

FOR THE STATE OF

NEBRASKA

JON C. BRUNING

Attorney General

David D. Cookson

Special Counsel to the

Attorney General

Natalee J. Hart

Assistant Attomey General

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

FOR THE STATE OF

TEXAS

Greg Abbott

Attorney General

Karen W. Kornell

Assistant Attorney General

Chief, Natural Resources

Division

Jane Atwood

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2100

FOR THE STATE OF

OHIO

JIM PETRO

Attorney General

Dale T. Vitale

Senior Deputy

Attorney General

Environmental

Enforcement Section

30 E. Broad Street, 25" Fl.

ColumbuS, Ohio 43215

(614) 466-4320

QUESTION PRESENTED

Does the United States Environmental Protection Agency

("EPA") lack the authority under the Clean Air Act to regulate

the emission of carbon dioxide and other greenhouse gases to

address global climate change?

PARTIES TO THE PROCEEDING

Petitioners, who were petitioners in the United States Court

of Appeals for the District of Columbia Circuit, are the

Commonwealth of Massachusetts, the States of California,

Connecticut, Illinois, Maine, New Jersey, New Mexico, New

York, Oregon, Rhode Island, Vermont, and Washington, the

District of Columbia, American Samoa Government, New

York City, Mayor and City Council of Baltimore, Center for

Biological Diversity, Center for Food Safety, Conservation

Law Foundation, Environmental Advocates, Environmental

Defense, Friends of the Earth, Greenpeace, International Center

for Technology Assessment, National Environmental Trust,

Natural Resources Defense Council, Sierra Club, Union of

Concerned Scientists, and U.S. Public Interest Research Group.

Respondents are EPA (the respondent below); the Alliance

of Automobile Manufacturers; National Automobile Dealers

Association; Engine Manufacturers Association; Truck

Manufacturers Association; CO) Litigation Group; Utility Air

Regulatory Group; the State of Idaho; and the States of

Michigan, North Dakota, Utah, South Dakota, Alaska, Kansas,

Nebraska, Texas, and Ohio. The Respondent States other than

Idaho are referred to herein as the "State Respondents." The

State of Idaho has elected not to join in this Brief. All of the

Respondents other than EPA were intervenors below.

TABLE OF CONTENTS

QUESTION PRESENTED .............--.00.cc0eecceceeeees eprcenbneemanmenennes i

PARTIES TO THE PROCEEDING. ...............c:cccccecssseseecenseeenens il

ine ners rnsinirpsnaenasnscumnmnneusees v

Tice chen icineedmestqenmmmnnccanenscensesocssctnaseeene l

STATUTORY PROVISIONS INVOLVED..............:2c0ccccccesees I

TET wiittiintarinicserentaienememenndevsens sesesensevsessccenscecesesensosece l

0 isiCi(‘(“‘(“‘(‘sét” TEETER TLR ER 2

2. Proceedings before EPA .......00:scccessecsscsessscserevseesessseses 6

3. Proceedings before the U.S. Court of Appeals

for the District of Columbia Circuit....................0...0+. 7

SUMMARY OF ARGUMENT ..00000........ccccecceseeeceeeeeeeeeeeceeneees 8

TT iinet seine catalan tateinatcidneminmnenmeneenamenente 9

A. Title | illustrates the Act's overall design and

I ccsoscrccnsnssensncanssssscscscnnsssentscemensessnescsqeseessccesses 1

1. The International Border Areas provision in

Section 179B is not applicable to the issue

of global climate change...................:cccececeeeeees 14

2. The absurd results canon does not support

SY CI criciicrctindenniesctcincneccomesnessese 16

B. Title I] complements Title | by advancing the

goal of achieving the NAAQS... 20... cceeceecceenes 17

C. Title IV further illustrates the Act’s purpose............ 19

D. Title VI shows how Congress explicitly tailored

specific provisions in the Act to resolve

international air quality problems............................. 20

of «

E. The structure and purpose of the entire Act — as

reficcted in Titles I, Il, 1V and VI — demonstrate

that Section 202(a)(1) does not authorize

regulation to address global climate change. ............ 21

i 23

TABLE OF AUTHORITIES

Page

Cases

Alaska Dep't of Envt'l Conservation v. EPA,

I el 3,4

Engine Mfrs. Ass'n v. EPA,

sd fk eee 3

Food and Drug Admin. v. Brown and Williamson

Tobacco Corp.,

I ies 16

Holy Trinity Church v. United States,

ERSTE SSC ae a ea T ET Mee 16

Kelley v. Robinson,

I ica icicle as 10

King v. St. Vincent's Hospital,

| ____ RE ARIa ee inne emer 10

Massachusetts v. EPA,

ee es I SII ncciniicticiteiirescciapiessstinastatatigasi 8, 16

Mova Pharmaceutical Corp. v. Shalala,

ooo oe 16

New York v. EPA,

— ERE er rn eee one 4

Sierra Club v. Costle,

4 & eco 3,12

Sierra Club v. Georgia Power Co.,

Se hk eh cl i

Sierra Club v. Imperial County Air Pollution

Control Dist.,

Ee 15

Train v. Natural Resources Defense Council,

| 8 REE Oe EE aPC 12

Whitman v. American Trucking Ass'n, Irc.,

Sr a 3,11, 16

Statutes

SI TN ethical aca Bs ]

pa NS. SAE LA 5

gk FEET rn nev aS 3

a CU crt tiiinneienchinittinidaniientetnialacieaiiesiitie asic 1]

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EL ON OT 11,12

SEER RE AEE l

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SRR yea ee 4,13

TEST LATE OE 5

ERR Ra A TE SE 4

I iia cael ata 4,12

gf ESRI ARP a ee CNN eer ere 4

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42 U.S.C. § 7503(a)(C) oe cccccceeeseeeeseeeeee hiiahinididiiedindetiaieiataal 12

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NT OTE AT NT Cc 5, 18

A IE ES 5, 18

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ao csessnssinsibvssiineniiteascanssiaiig 19, 20

I iain dicciniesisemnsntinnenuniall 19

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CL EER LAT 21

pd ne 2

42 U.S.C. §§ 7409(a) and (1) ...cccccsssssssccsccscsseesenseesensseseeeeeree

40 CF.R. §§ 50.4-12 (2004) ...scccccsscscscssessesessssesesennneesee 3,13

60 CAF.R. § 60.100 (2004).....ccccccsscssscsscnsseseessenesesesssnneceeenee 13

60 CF.R. § 60.330 (2004)....ccccccccsssscseseseeecesesnsseseseaseseeeeeee 13

38 Fed. Reg. 33,733 (Dec. 6, 1973) cccccsccssssusssessnessssessenssees 17

68 Fed. Reg. 52,922 (Sept. 8, 2003).............. 2, 6, 7, 15, 16, 21

Clean Air Act Amendments of 1990,

Pub. L. No. 101-549, 104 Stat. 2399.00.00. 19

- Viti -

Other Authorities

Declaration of Michael McCracken.................... 2, 6, 14, 20, 22

Declaration of Michael Walsh...............0.000000cccceccccceeseeeeseeeseees 22

Energy Information Administration, Table on World

Carbon Dioxide Emissions from the Consumption and

Flaring of Fossil Fuels, 1980-present ....................cccee0eeee0 2

Environmental Effects of the Increased Use of Coal;

Hearings Before the Senate Subcomm. on Envt'l

Pollution of the Senate Comm. on Env't and Pub.

Works, (March 19, 1980)(testimony of Douglas M.

Costle, EPA Administrator) -.................ccccccesceceeeeeeeeeeeeees 20

EPA, Automobiles and Carbon Monoxide, available at

http://www.epa.gov/otag/consumer/03-co.pdf................+. 17

EPA, Automobiles and Ozone, available at

http://www.epa.gov/otaq/consumer/04-ozone.pdf............ 18

EPA, EPA's Efforts to Reduce Lead, available at

http://www.epa.gov/air/urbanair/lead/effrt.html ............... 17

EPA, Nonattainment Areas for Lead, available at

hitp://www.epa.gov/oar/oaqps/greenbk/lindcx.html ......... 17

Treatises

Frank P. Grad, Treatise on Environmental Law (2005)....13, 21

OPINIONS BELOW

The decision of the Court of Appeals is reported at 415

F.3d 50 (D.C. Cir. 2005) and is reproduced in the Petitioners’

Appendix (Pet. App. Al-A5S8). The Court of Appeals’ order

denying Petitioners’ petition for rehearing en banc is reported

at 433 F.3d 66 (D.C. Cir. 2005) and is reproduced in the

Petitioners’ Appendix (Pet. App. A94-A95).

JURISDICTION

The judgment of the Court of Appeals was entered on

August 15, 2005. The Court of Appeals' order denying the

petition for rehearing en banc was entered on December 2,

2005. The petition for a writ of certiorari was filed on March

2, 2006, and was granted on June 26, 2006. The jurisdiction of

this Court rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in the case are Sections

109(a) and (b), 110(a), and 202(a)(1) of the Act.’ The pertinent

statutory text is set forth in the State Respondents’ Appendix

(State Resp. App. 1b-12b).

STATEMENT

Petitioners challenge EPA's denial of a petition for

rulemaking that sought the regulation of carbon dioxide

("CO") and other greenhouse gas emissions from new motor

vehicles and engines under Section 202(a)(1) of the Clean Air

Act ("CAA" or "Act"), 42 U.S.C. § 7521(a)(1).

' 42 U.S.C. §§ 7409(a) and (b), 7410(a), 7521(a)(1)

%.

EPA's denial of the petition was based on the agency's

position that the CAA "does not authorize EPA to regulate for

global climate change purposes[.]"’ EPA therefore determined

that CO» and other greenhouse gases cannot be considered “air

pollutants" subject to the CAA's regulatory provisions for any

contribution they may make to global climate change.” EPA

also concluded that even if it did have such authority, it would

not exercise it at this time because of uncertainties about the

causes and effects of climate change and additional policy

considerations.‘

The U.S. Court of Appeals for the District of Columbia

Circuit affirmed EPA's denial of the petition for rulemaking.

1. Statutory Framework

The Act, 42 U.S.C. §§ 7401-7671q, provides for the control

of air pollutants from stationary and mobile sources within the

United States to protect public health and welfare. The

purpose of the Act is to successfully achieve air pollution goals

that will protect public health and welfare by reducing U.S.

emissions. The Act does not, however, authorize EPA to set

emission standards that will not meaningfully address an air

quality issue like global climate change, which is caused

priimanly by CO and other greenhouse gas emissions from

outside of the United States.”

The "centerpiece" of the Act is the requirement in Title |

that EPA -establish national ambient air quality standards

* 68 Fed. Reg. 52,922, 52,925 (Sept. 8, 2003)

: la

“Id. at $2,929-33.

* See Declaration of Michael McCracken, 4 31 (Joint App. 238); see also

Energy Information Administration, Table on World Carbon Dioxide

Emissions from the Consumption and Flaring of Fossil Fuels, 1980-present

at 4, 20 (identifying U.S. and world-wide CO, emissions in 2004), available

at http://www.eia.doe.gov/pub/ international teal f/tableh | co2.x]s.

a

("NAAQS")." The NAAQS "define [the] levels of air quality

that must be achieved to protect public health and welfare."

States have the pnmary responsibility for air pollution

prevention and control, and they fulfill that responsibility by

establishing cmission limits for sources within their borders.”

The States achieve the NAAQS mainly by regulating stationary

sources, such as factories and power plants, through

implementation plans that they submit to EPA for approval.”

The Act, however, does not contain any provision for

States to reduce air pollution from sources outside of the

United States. Therefore, if international sources of air

pollution are contributing to a State's inability to meet a

NAAQS, it would be impossible for that State to meet the

national standard because of the lack of authority to limit such

emissions.

EPA's setting of the NAAQS is "the engine that drives

nearly all of Title I of the CAA.""° For example, Title |

contains detailed preconstruction requirements to allow for

economic growth while assuring that air quality in areas that

have attained the national standards does not degrade and that

‘nonattainment’ areas continue to improve. Under the

prevention of significant deterioration provisions ("PSD"), no

major air polluting facility may be constructed unless it can

meet an emission limit that reflects the best available control

® Sierra Club v. Costle, 657 F.2d 298, 315 (D.C. Cir. 1980).

Alaska Dep't of Envt'l Conservation v. EPA, 540 U.S. 461, 469 (2004)

(quoting R. Belden, Clean Air Act 6 (2001)). EPA has established NAAQS

for six air pollutants: particulate matter, sulfur dioxide, carbon monoxide,

nitrogen dioxide, ozone and lead. 40 C.F.R. §§ 50.4-12 (2004). In addition,

oxides of nitrogen and volatile organic compounds combine in the presence

of sunlight to form ozone, and they are regulated as precursors of ozone.

See e.g, 42 U.S.C. § 751 1a(b) requiring reductions in emissions of volatile

organic compounds and oxides of nitrogen to attain the NAAQS for ozone).

* 42 U.S.C. § 7401(a)(3).

* Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1078-79 (D.C. Cir. 1996).

° Whitman v. American Trucking Ass'n, Inc., 531 U.S. 457, 468 (2001).

dis

technology.'' New sources in nonattainment areas must, under

the provisions known-as-"Nonattainment New Source Review,”

obtain offsetting emission reductions and meet the "lowest

achievable emission rate" through the use of the most

protective pollution controls.'? Each State's implementation

plan to achieve the NAAQS is required to include permit

provisions to administer both the PSD and Nonattainment New

Source Review requirements. "°

Section Itt~helps States achieve the NAAQS through

EPA's promulgation of "new source performance standards”

("NSPS") for industry categories. The NSPS are national,

technology-based standards that establish a minimum level of

emission limitations regardless of whether a source is located

in an attainment or a nonattainment area.

Meeting the NAAQS is mandatory, and Title I requires that

the implementation plans adopted by the States achieve them

by specific dates.'* Failure to achieve a NAAQS by those

dates triggers sanctions under the Act that include the loss of

federal highway funding. '°

Other provisions in Title | similarly reflect that the Act is

designed to prevent air pollution that endangers public health

and the environment by reducing emissions from U.S. sources.

Section 112 establishes a two-phase approach to limit the

emission of hazardous air pollutants ("HAPs") for which EPA

has not established a NAAQS.'° The first phase is a

'! 42 USC. § 7475(a); Alaska Dep't of Envt'l Conservation v. EPA, 540

U.S. at 470-73.

'? 42 US.C. § 7503(a).

'3 49 U.S.C. 88 7471, 7512a. The PSD and Nonattainment New Source

Review requirements are collectively referred to as “New Source Review."

New York v. EPA, 413 F.3d 3, 12-13 (D.C. Cir. 2005).

'9 42 USC. § 7502%a)(2).

'> 42 U.S.C. § 750%b).

'© 42 U.S.C. §§ 7412(d), (f).

x *

technology-based program that requires the use of "maximum

achievable contro] technology" ("MACT") for categones and

subcategories of sources that emit HAPs.'’ In the second phase

~— which occurs within eight years after the MACT standards

are promulgated - EPA is required to evaluate whether

“residual risks" remain after implementation of the MACT

standards that warrant more stringent requirements in order "to

provide an ample margin of safety to protect public health . . .

or to prevent .. . an adverse environmental effect."'* The

residual risk provisions illustrate a core premise underlying the

NAAQS provisions and the Act in general: emissions

reductions from U.S. sources are intended to achieve the goal

of protecting public health and the environment.

Title I] authorizes EPA to establish emission standards for

mobile sources and complements the States’ efforts to achieve

the NAAQS pursuant to Title 1. For example, Section 202

establishes motor vehicle emission standards for carbon

monoxide and particulate matter (for which EPA has

promulgated NAAQS), as well as hydrocarbons and nitrogen

oxides (which are precursors of ozone, for which EPA has also

promulgated a NAAQS)."” The oxygenated fuels provision in

Section 211(m) requires that gasoline sold in the winter months

contain a minimum of 2.7 percent oxygen in areas that have not

attained the NAAQS for carbon monoxide.”” Section 246

requires clean-fuel vehicle programs for motor vehicle fleets in

ozone and carbon monoxide nonattainment areas’ with

populations of 250,000 or more.’!

Again, the common theme running through all of these

Title 1 and Title II provisions is that they are designed to

'? 42 U.S.C. § 7412(d). The MACT standards are based on the emission

limitation achieved by the best performing sources in a category. /d.

'8 42 U.S.C. § 7412(f)(2MA).

'9 42 USC. § 7521(p). -

. 42 U.S.C. § 7545(m).

7) 42 US.C. § 7586.

- 6.

successfully prevent and control air pollution by reducing

emissions from sources (both stationary and mobile) in the

United States. Nothing in the Act suggests that it is intended to

require controls that cannot effectively address air quality

problems in the United States that are caused primarily by

emissions from sources outside of the country.

2. Proceedings before EPA

On October 20, 1999, Petitioner International Center for

Technology Assessment and 18 other organizations filed a

petition for rulemaking (the "ICTA Petition") asking EPA to

regulate certain greenhouse gas emission for new motor

vehicles and engines under Section 202(a)(1) of the CAA, 42

U.S.C. § 7521(a)(1). In particular, the petition sought the

regulation of CO», methane, nitrous oxide and

hydroflourocarbon emissions from new motor vehicles and

engines. According to Petitioners, emissions from the entire

U.S. transportation sector (not just new motor vehicles and

engines) account for approximately 7% of global fossil fuel

emissions.”

Section 202(a)1) of the Act states that the EPA

Administrator shall prescribe standards for emissions of air

pollutants from new motor vehicles and engines that "in his

judgment cause, or contribute to air pollution which may

reasonably be anticipated to endanger public health or

welfare."*> Petitioners claim that CO) and other greenhouse

gases are air pollutants that contribute significantly to global

climate change.”

On September 8, 2003, EPA denied the ICTA Petition.

EPA concluded that the CAA "does not authorize EPA to

regulate for global climate change purposesf.]"”° The agency

22 Declaration of Michael McCracken, 4 31 (Joint App. 238).

23 42 U.S.C. § 7521(a)(1).

24 68 Fed. Reg. 52,922, 52,923 (Sept. 8. 2003).

*5 Id. at 52,925.

therefore determined that CO, and other greenhouse gases

cannot be considered "air pollutants” subject to the Act's

regulatory provisions for any contribution they may make to

global climate change.”°

In reaching its conclusion, EPA analyzed the text and

history of the CAA as well as other congressional actions

specifically addressing global climate change. Among other

things, EPA emphasized that "the NAAQS system — a key

CAA regulatory mechanism — . . . is fundamentally inadequate

when it comes to a substance like CO», which is emitted

globally and has relatively homogenous concentrations around

the world.””’ EPA explained that "any CO) standard that might

be established would in effect be a worldwide ambient air

quality standard, not a national standard — the entire world

would be either in compliance or out of compliance." This

situation "is inconsistent with a basic underlying premise of the

CAA regime for implementation of a NAAQS - that actions

taken by individual States and by EPA can generally bying all

areas of the U.S. into attainment of a NAAQS."”8 The

inadequacy of one of the Act's central regulatory provisions

(the NAAQS system) to address global climate change

reinforced EPA's conclusion that the CAA as a whole,

including Section 202, does not authorize the agency to

regulate for global climate change purposes.

3. Proceedings before the U.S. Court of Appeals for the

District of Columbia Circuit

The Court of Appeals dismissed the petitions for review. It

did not, however, address the question of whether EPA has the

authority under the Act to regulate greenhouse gas emissions to

address global climate change. Instead, Judge Randolph, who

authored the lead opinion, assumed arguendo that EPA had

such authority. Massachusetts v. EPA, 415 F.3d 50, 56 (D.C.

Ke Id, at 52,925, 52.928.

27 1d. at $2,927.

*

-8-

Cir. 2005)(Pet. App. Al-A58). He determined that the agency

correctly exercised its discretion in concluding that regulation

of greenhouse gas emissions from motor vehicles was not

warranted. According to Judge Randolph, the agency's

judgment was properly based on, among other things, the

"scientific uncertainty about the causal effects of greenhouse |

gases on the future climate of the earth" and policy

considerations that supported EPA's judgment not to regulate.

Id., at 58.

Judge Sentelle concurred in the judgment dismissing the

petitions for review. He concluded that Petitioners lacked

standing because their "claimed injury is common to all

members of the public” and is "the sort of general harm” that is

insufficient to present a justiciable controversy under Article

Ill of the Constitution. Jd., at 60. Judge Sentelle did not

address the questions of whether EPA has the authority to.

regulate greenhouse gas emissions or whether EPA properly

exercised its discretion in deciding not to regulate.

Judge Tatel dissented. He concluded that at least one

Petitioner had standing, that EPA had the authority to regulate

greenhouse gas emissions under Section 202 of the Act, and

that EPA had not adequately explained its refusal to regulate.

Id., at 67, 73, 81.

The panel denied a petition for hearing. On December 2,

2005, the Court of Appeals denied a petition for -rchearing en

banc. (Pet. App. A94-A95).

SUMMARY OF ARGUMENT

The CAA is designed to successfully achieve air quality

goals by limiting emissions from sources within the United

States. This overarching theme runs through the entire Act. It

is reflected in the NAAQS and other programs contained in

Title 1, in the mobile source provisions of Title II, in the acid

rain program of Title IV, and in the stratospheric ozone

depletion requirements of Title VI. The Act does not authorize

9.

the reduction of emissions from U.S. sources that will not

meaningfully address an international air quality issue like

glubal climate change that is caused primarily by emissions

from sources located outside of the United States. Nor is the

intent of the Act to expend substantial resources on an air

quality issuc thal is beyond the control of the United States and

where such efforts will not effectively protect public health and

welfare. Instead, the Act is designed to actually achieve air

quality goals that will effectively protect public health and

welfare through U.S. emission reductions.

The statutory provision at issue here cannot — as Petitioners

claim — be interpreted in isolation, apart from the overall

statutory scheme. When Section 202(a)(1) is understood in the

context of the entire Act, its meaning is clear: Section 202

authorizes the EPA Administrator to set standards for the

emission of air pollutants from new motor vehicles that "in his

judgment cause, or contribute to, air pollution that may

reasonably be anticipated to endanger public health or

welfare,""" where U.S. emission reductions will measurably

and meaningfully address such air pollution. Section 202 does

not, however, allow EPA to set emission standards that would

be an exercise in futility where the sources primarily

generating the air pollution are outside the United States and

where emission reductions from within the United States wil]

have no meaningful effect on protecting public health and

welfare.

ARGUMENT

Petitioners would have this Court ignore the basic principle

of statutory construction that a statute is to be read as a whole.

Petitioners’ analysis of Section 202(a)(1) occurs in isolation,

divorced from the rest of the Act. In fact, Petitioners would

have this Court ignore the core provisions of the Act that

contradict their proposed interpretation. Petitioners’ use of

tunnel vision prevents an accurate interpretation of Section

2° 42 U.S.C. § 7521(a)(1).

-10-

202(a)(1); it must be understood in the context of the entire

Act.

This case presents a straightforward question of statutory

interpretation: Does the CAA provide EPA with the authority

to regulate the emission of carbon dioxide and other

greenhouse gases to address global climate change? The CAA,

when viewed in its entirety, clearly does not authorize such

regulation.

The specific statutory provision at issue in this case,

Section 202(a)(1), directs that the EPA Administrator "shall by

regulation prescribe . . . standards applicable to the emission of

any air pollutant from any class or classes of new motor

vehicles or new motor vehicle engines, which in his judgment

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

anticipated to endanger public health or welfare."*” Petitioners

assert that EPA's authority to regulate greenhouse gas ~

emissions for purposes of global climate change is apparent

from the plain language of Section 202(a)(1). Moreover, they

emphasize that the Court should not review the Act's central

provisions to understand the meaning of Section 202(a)(1) and

that any analysis of the NAAQS provisions in Title | is "to

utter a non seguilor. "' But what Petitioners’ characterize as a

"debater's trick,"”’ this Court has described as a "cardinal rule"

of statutory interpretation: "a statute is to be read as a whole,

since the meaning of statutory language, plain or not, depends

on context.””? Similarly, this Court has explained that in

analyzing a statutory provision, "we must not be guided by a

single sentence or member of a sentence, but look to the

provisions of the whole law, and to its object and policy.”

~

30 14.

n Petitioners’ Brief, at 9.

32 id, at 28.

33 King v. St. Vincent's Hospital. 502 U.S. 215, 221 (1991 emphasis

added) citations omitted). j

4 Kelley v. Robinson, 479 US. 36, 43 (1986)

-Il-

When read in the context of the entire Act, it is clear that

Section 202(a)(1) authorizes EPA to prescribe standards for the

emission of air pollutants from new motor vehicles that cause,

or contribute to, air pollution that endangers public health and

the environment and that is caused primarily by emissions from

sources within the United States. As discussed below, the

statutory provisions in Titles |, Il, IV and VI all reflect and

reinforce a fundamental theme of the Act: to successfully

achieve air quality goals that will effectively protect public

health and welfare by reducing emissions from sources of air

pollution in the United States.»

A. Title 1 illustrates the Act's overall design and

purpose

The statutory provisions in Title | demonstrate that the Act

is designed to achieve air quality goals by limiting emissions

from U.S. sources. The “engine that drives nearly all of Title

I" is the provision for setting the NAAQS.” Section 109(b)

directs that EPA promulgate the NAAQS to protect public

health and welfare.’ The States are then required to

implement and attain the NAAQS by "deciding what emission

reductions will be required from which sources."**®

More specifically, Section 110 gives States the duty of

developing, subject to EPA approval, implementation plans to

°° The Act's general provisions in Title Il, 42 U.S.C. §§ 7601-27, and the

operating permit program in Title V, 42 U.S.C. §§ 7661-7661f, do not, by

themselves, limit emissions and are not discussed herein. See e.g., Sierra

Club v. Georgia Power Co., 443 F.3d 1346, 1348 (11 Cir. 2006)("The

Title V operating permit program generally does not impose new

substantive air quality control requirements.").

- Whitman v_ American Trucking Ass'n, Inc.. 531 U.S. 457, 468 (2001).

*” 42 US.C. § 7409(b). ;

*8 Whitman v. American Trucking Ass'n, Inc., 531 U.S. at 470. See also 42

US.C. §§ 7407(a), 7410 (giving States the duty of developing

implementation plans).

-12-

achieve the NAAQS.*’ States determine and enforce the

"specific, source-by-source emission limitations which are

necessary if the national standards | EPA] has set are to be met.

... [So long as the ultimate effect of a States' choice of

emission limitations is compliance with the national standards

for ambient air,” each State is free to select the "mix of

emission limitations it deems best suited to its particular

situation.”*”

The PSD and Nonattainment New Source Review

programs in Title | help the States contro] emissions from new

and modified sources. Both require new major sources of air

pollutants to meet emission limits that reflect the state-of-the-

art in air pollution control. New major sources in attainment

and nonattainment areas are required to go through a detailed

pre-construction permitting process and must meet emission

standards based on the best available control technology and

the lowest achievable emission rate, respectively.*' New major

sources in nonattainment areas must also obtain offsetting

emission reductions from existing sources in the same area so

that air quality can continue to improve and eventually achieve

the NAAQS.*

The NSPS provisions in Section 111 also help the States

meet the NAAQS. These provisions establish a minimum floor

of emission limits for categories of industry sources and ensure

that States with relatively clean air do not gain a competitive

economic advantage to attract industry by setting less stringent

emission limits.” The "purpose of the NSPS" is "part of the

overall effort to advance the accomplishment of the

% 42 US.C. § 7410.

as Train v. Natural Resources Defense Council, 421 US. 60, 79

(1975)(emphasis added).

*! 49 USC. §§ 7475(a), 7503(a).

* 42 U.S.C. § 750Ha\c).

* sierra Club v. Costle, 657 F.2d 298, 315 (D.C. Cir. 1980).

of3-

NAAQS."** Indeed, many of the NSPS include requirements

for those air pollutants for which EPA has promulgated a

NAAQS.*

The Act alsa contains powerful incentives to ensure the

States achieve the NAAQS. Eighteen months after EPA

determines that a State has failed to implement an approved

part of its implementation plan, the agency is required to

impose one of two types of sanctions if the deficiency has not

been corrected.“ Sanctions include a loss of highway funding

or a requirement that emission offsets for new sources in

nonattainment areas shall be at least two to one. If the State

fails to correct the deficiency within another six months, the

emission offset sanction must be imposed.*’

In addition to the NAAQS, Section 112's requirements to

limit hazardous air pollutants further reinforce the overall

statutory scheme. Under Section 112, EPA is directed to

evaluate the remaining risk to public health and the

environment within eight years after promulgating the

technology-based MACT standards for major sources of

hazardous air pollutants.” EPA is then required to establish

and implement "residual nsk" control standards to provide an

ample margin of safety to protect public health or, if a more

stringent standard is needed, to prevent an adverse

“4 | Frank P. Grad. Treatise on Environmental Law § 2.0314], at 2-356

(2005).

- See e.g., Standards of Performance for Incinerators, 60 C.F.R. §§ 60.50-

54 (2004)(containing standards for particulate matter); Standards of

Performance for Petroleum Refineries, 60 C.F.R. §§ 60.100-109

(2004)(containing standards for particulate matter and carbon monoxide),

Standards of Performance for Stationary Gas Turbines, 60 C.F.R. §§

60.330-335 (2004)(containing standards for nitrogen oxides and sulfur

dioxide).

* 42 U.S.C. § 750%a).

*” 42 US.C. § 7509(b).

** 42 U.S.C. § 7412(f).

04.

environmental effect.*? Section 112 thus reflects the

underlying approach of both Title I itself and the Act as a

whole: emission reductions from sources within the United

States will ultimately achieve the goals of protecting public

health and the environment.

In this case, there is no dispute that global climate change is

caused by emissions from around the world. The emission

reductions from new motor vehicles that Petitioners seek,

however, are only a small fraction of global greenhouse gas

emissions.” As Petitioners themselves note, reductions from

other countries are needed to avoid "the most serious impacts"

of global climate change.°' While global climate change may

be "the most significant public heath and environmental threat"

facing the nation and the world,” the issue in this case is

whether the Act provides EPA the authority to address

international air quality issues that — like global climate change

— are beyond the control of the United States itself and cannot

be resolved by emission reductions from motor vehicles within

this country. Title I and the rest of the Act demonstrate that

EPA has no such authority.

1. The International Border Areas provision in

Section 179B is not applicable to the issue of

global climate change

Title I contains a provision that acknowledges that, in some

instances, attainment of the NAAQS may not be possible

because of emissions from sources outside the country.

Section 179B, entitled "International Border Areas," provides

that a State's implementation plan may be approved if the State

"establishes to the satisfaction of FPA" that the State would

attain the NAAQS "but for emissions emanating from outside

o mo

** Declaration of Michael McCracken, 4 31 (Joint App. 238).

"ld., at 4 32.

? Amicus Brief of Former EPA Administrators, at |.

_15-

of the United States.""? The provision has been used, for

example, in the context of a Southern California county

attempting to excuse nonattainment with a NAAQS for

particulate matter due to transborder emissions from Mexico.”

Section 179B is not, however, applicable to the issue of

global climate change. As EPA explained in its denial of the

ICTA Petition, carbon dioxide is "by far the most pervasive of

anthropogenic [greenhouse gases]" and stays in the atmosphere

for approximately 50 to 200 years.” "This long lifetime along

with atmospheric dynamics means that CO) is well mixed

hroughout the atmosphere, up to approximately the lower

stratosphere.” As EPA also noted, the NAAQS system "is

fundamentally inadequate when it comes to a substance like

CO», which is emitted globally and has relatively homogenous

concentrations around the world.” Unlike the other pollutants

for which a NAAQS has been established, a NAAQS for CO,

"could not be attained by an area of the U.S. until such a

standard were attained by the entire world as_a result of

emission controls implemented in countries around the world.”

Therefore, the agency emphasized that this situation "would be

inconsistent with a basic underlying premise of the CAA

regime for implementation of a NAAQS - that actions taken by

individual States and by EPA can generally bring all areas of

the U.S. into attainment of a NAAQS."”

In other words, the NAAQS provisions are aimed at

ultimately achieving the national standards through domestic

emission reductions. Congress could not have envisioned the

implausible scenario of a NAAQS for carbon dioxide that no

State could meet, and where every State would seek to excuse

its nonattainment under Section 179B because of international

349 U.S.C. § 7509a(a\(2).

See Sierra Club v Imperial County Air Pollution Control Dist., 346 F.3d

955 (9" Cir. 2003).

» 8 Fed. Reg. 52.922, 52,927 (Sept. 8. 2003).

BEST AVAILABLE COPY

Id

- 16-

emissions.’ To excuse the nonattainment with a NAAQS for

CO» by every State under Section 179B would, in effect, allow

the exception to swallow the rule. As EPA noted, "[t]he

limited flexibility provided in the Act to address the impacts of

foreign pollution transported to the U.S. was not designed to

address the challenges presented by long-lived global

atmospheric pools such as exists for CO>.""*

2. The absurd results canon does not support

Petitioners’ argument

Judge Tatel, in his dissenting opinion in the Court of

Appeals, stated that even if the States’ "limited ability" to meet

a NAAQS for carbon dioxide "renders the NAAQS provisions

unworkable as to CO», the absurd-results canon would justify

at most an exception limited to the particular unworkable

provision, i.e., the NAAQS provision.""” The absurd results

canon provides that if a literal construction of a statute

produces an absurd result, it should be interpreted to avoid the

absurdity.”

Judge Tatel's argument, however, incorrectly characterizes

the NAAQS system as a mere exception to the Act. In fact, the

NAAQS system is, as this Court has stated, the "engine that

drives nearly all of Title 1."°' Moreover, it ignores the basic

principle of statutory interpretation that the Act is to be read as

a whole. The design of Title I and the entire Act demonstrates

*” See Food and Drug Admin. v. Brown and Williamson Tobacco Corp.,

529 U.S. 120, 141 (2000){rejecting statutory interpretation that would result

in an implausible regulatory scheme).

*8 68 Fed. Reg. at 52.927.

- Massachusetts v. EPA. 415 F.3d 50, 70 (D.C. Cir. 2005).

- Holy Trinity Church v. United States, 143 U.S. 457, 459-60 (1892). Any

deviation from the literal reading of the statute should be no greater than is

needed to protect congressional intent. Mova Pharmaceutical Corp. v

Shalala, 140 F.3d 1060, 1068 (D.C. Cir. 1998).

°! Whitman v. Amencan Trucking Assn, Inc., 531 U.S. 457, 468 (2001).

49.

that Congress did not intend Section 202 to be used to address

an international air quality issue like global climate change.

B. Title Il complements Title I by advancing the goal of

achieving the NAAQS

Petitioners assert that the mobile source requirements in

Title Il are "entirely separate" from the NAAQS provisions in

Title 1, and that the Court therefore should not consider the

overall statutory scheme when analyzing whether Section 202

authorizes regulation for purposes of global climate change.”

In fact, Title II's requirements are essential to achieving the

NAAQS. Far from being "entirely separate," Title I!

complements Title I.

That complementary relationship is illustrated by the

success in achieving the NAAQS for lead through emission

reductions from mobile sources. In 1973, EPA promulgated

regulations phasing out the use of lead as a gasoline additive

under the statutory provision in Title I! now codified at 42

U.S.C. § 7545(c)(1).° As a result of EPA's regulatory efforts,

the levels of lead in the air decreased 94 percent between 1980

and 1999." Today, all but two counties in the United States

have attained the NAAQS for lead.°°

Title {I's emissions standards for automobiles and trucks

also play a critical role in achieving the NAAQS for carbon

monoxide, particulate matter, nitrogen dioxide, and ozone. The

largest source of U.S. carbon monoxide emissions are motor

vehicles.”” In many urban areas, emissions of hydrocarbons

* Petitioners’ Brief at 28.

®3 38 Fed. Rep. 33,733 (Dec. 6, 1973).

EPA, EPA's Efforts to Reduce Lead. available at

http), www.epa. gov. air urbanair lead effrt. html.

°° EPA. Nonattainment Areas for Lead, available at

http. www.cpa.gov oar oagps’ greenbk/lindex. html.

“° EPA. Automobiles and Carbon Monoxide. available at

http: www epa gov otaq consumer’03-co.pdf.

-18-

and nitrogen oxides (the precursors of ozone) come primarily

from motor vehicles and other mobile sources.°’ The standards

established under Section 202(g) sharply reduce tailpipe

emissions of carbon monoxide, particulate matter, oxides of

nitrogen, and hydrocarbons, all of which assist in achieving

attainment of the NAAQS.

Other provisions in Title I] further help States attain the

national standards. Section 211(m) requires that gasoline sold

during the winter months contain a minimum of 2.7 percent

oxygen in areas that have not met the NAAQS for carbon

monoxide.”’ Section 246 requires clean fuel vehicle programs

for fleets of 10 or more motor vehicles owned and operated by

a single person in ozone and carbon monoxide nonattainment

areas with populations greater than 250,000.” Additionally,

Section 202(j) imposes requirements for limiting carbon

monoxide emissions in cold weather when emissions can be

very high due to the reduced efficiency of both pollution

control equipment and fuel combustion. ”|

Title | itself contains provisions that illustrate the

connection between limiting emissions from mobile sources

and attaining the NAAQS. For example, Section 182(b)(3)

requires fuel-pump recovery systems (such as sheaths over

pump nozzles) to prevent the evaporation of hydrocarbons

during refueling.” States with nonattainment areas are

required to implement vehicle inspection and maintenance

programs that vary depending on the severity of the

nonattainment status. In States with ozone or carbon monoxide

nonattainment areas, the act requires motor vehicle inspection

a ——— en

” EPA, Automobiles and Ozone, available at

http.) www.epa.gov/otaq/consumer/04-ozone pdf.

®8 42 U.S.C. § 7521(g)

© 42 U.S.C. § 7545(m).

USC. § 7586.

"42 U.S.C. § 75214).

"42 U.S.C. § 751 1a(b)(3).

- .

and maintenance programs to identify malfunctioning vehicle

emission controls and require that they be repaired as a

prerequisite to vchicle registration.

The transportation-related requirements in both Title II and

Title | illustrate the fact that both portions of the Act are

designed to work together. Although the focus of Title I is on

stationary sources while Title Il addresses mobile sources, the

requirements in both Titles are complementary and reflect the

overall purpose and design of the entire Act: to successfully

achieve air quality goals that will effectively protect public

health and welfare by reducing emissions from sources within

the United States.

C. Title [V further illustrates the Act’s purpose

The acid rain program, enacted as part of the Clean Air Act

Amendments of 1990,” also reflects the fact that the Act is

intended to achieve air quality goals through domestic, rather

than international, emission reductions. The primary -

precursors of acid rain are sulfur dioxide and nitrogen oxides.

The purpose of Title IV is to reduce the adverse effects of acid

rain by reducing, from 1980 levels, annual sulfur dioxide

emissions by 10 million tons and annual nitrogen oxide

emissions by 2 million tons.”

Title IV prescribes limits for emissions of these air

pollutants from specified electric utility plants in the

contiguous 48 States.” ‘The Act imposes a nation-wide cap of

approximately 8.9 million tons of sulfur dioxide emissions per

year on electric utilities, and they must reduce their emissions

to meet the cap.’’ Utilities are allocated marketable emission

"8 42 U.S.C. 88 751 a(c)(3). 7512(ayn6).

™ Pub. L. No. 101-549, 104 Stat. 2399.

S42 US.C. § 7651(b).

"© 42 US.C. 88 765lc. 76510.

7 42 USC. § 7651b(a\(1).

20 -

allowances.’* Each allowance authorizes the emission of one

ton of sulfur dioxide per year and may be bought, sold, traded

or banked for future use or resale. ’’

Canada and the United States contribute to each other's acid

rain problem. According to testimony by EPA before Congress

in 1980, however, only 13 percent of the acid rain in New York

and New Jersey is caused by pollution from Canada, while

only 18 percent of the acid rain in the remaining northeastern

United States is from air pollutants emitted from Canadian

sources.’ The acid rain program in Title IV, therefore,

provides another example of a program that, like the provisions

in Titles I and Il, can actually solve an air quality problem

because it is caused primarily by emissions from within the

United States. By contrast, global climate change, which is

caused mainly by emissions from outside the country and

requires reducing cmissions world-wide, is not the kind of air

quality problem that the Act was intended to solve.*!

D. Title VI shows how Congress explicitly tailored

specific provisions in the Act to resolve international

air quality problems

Title VI of the Act, which addresses stratospheric ozone

depletion, demonstrates that Congress knows how to

specifically craft statutory solutions to global air quality issues.

As EPA noted in its denial of the ICTA Petition, the causes and

effects of stratospheric ozone depletion are similar to global

—

8 42 USC. § 765\c.

” 42 US §$§ 7651a(3), 7651d(b).

8° Enviromental Effects of the Increased Use of Coal; Hearings Before the

Senate Subcomm. on Envt'l Pollution of the Senate Comm. on Env't and

Pub. Works, at 19 (March 19, 1980)(testimony of Douglas M. Costle. EPA

Admunistrator).

*! See Declaration of Michael McCracken #32 Voint App. 239)(emission

reductions from motor vehicles in the U.S. and other countnes, along with

limiting other emissions, make it "much more likely that the extent of

climate change could ultimately be limited to levels that would avoid the

most senous rmpacts of global warming.").

.

a

climate change: man-made substances "that deplete

stratospheric ozone are emitted around the world and are very

long-lived," and their effects “occur on a global scale." To

address this global problem, Title VI requires that the

production and consumption of ozone-depleting substances be

phased-out pursuant to a specific schedule.”

Title V1 stands in stark contrast to the rest of the Act. It

was enacted as part of the 1990 Clean Air Act Amendments to

implement an international treaty signed by the United States

and other governments in 1985 — the Vienna Convention for

the Protection for the Ozone Layer — and, more precisely, the

Montreal Protocol on Substances that Deplete the Ozone Layer

that the signatories to the Vienna Convention adopted in

1987. Unlike the other provisions of the Act, Title VI

specifically requires U.S. emission reductions to address an

international air quality issue caused by emissions from around

the world. EPA should only endeavor to address the

international air quality issue of greenhouse gas emissions and

global climate change under the authority of a similar, specific

provision, which Section 202 is not.

E. The structure and purpose of the entire Act — as

reflected in Titles 1, 11, IV and VI — demonstrate that

Section 202(a)(1) does not authorize regulation to

address global climate change.

The portions of the CAA discussed previously highlight its

central theme: to successfully achieve the air quality goal of

effectively protecting public health and welfare by limiting

emissions from sources within the United States. The

provisions in Titles I, {1, 1V and VI all underscore and reinforce

this fundamental premise of the entire Act. 2

%? 68 Fed. Reg. 52.922, 52,926 (Sept. 8, 2003).

*3 49 US.C. 8§ 767lc, § 7671.

“6 Frank P. Grad, Treatise on Environmental Law $ 13.03[4][g)[ni], [v]. at

13-149, 13-162 (2005).

. -

The basic flaw in Petitioners’ argument is that Petitioners

fail to ascertain the meaning of Section 202(a)(1) in the context

of the Act as a whole. Instead, they claim that this Court-

should put on its blinders and attempt to understand the

meaning of that statutory provision in isolation. That approach

is fundamentally wrong and must be rejected.

When the design of the overall] statutory scheme is applicd

to this case, the meaning of Section 202(a)(1) is clear. It

authorizes the EPA Administrator to set standards for the

- emission of air pollutants from new motor vehicles that "in his

judgment cause, or contribute to, air pollution that may

reasonably be anticipated to endanger public health or

welfare,"”’ where U.S. emission reductions will meaningfully

address such air pollution. It does not, however, authorize

EPA to set standards that will not effectively address an air

quality problem.

In this case, Petitioners acknowledge that the emission

reductions they seek make up only a small percentage of global

greenhouse gas emissions.”° Moreover, Petitioners state that

emission reductions "from vehicles in the U.S. and other

countries" (which Petitioners speculate will occur), "would

substantially and measurably mitigate the impacts of global

warming.”*’ They further state that limiting the extent of

global climate change "to levels that would avoid the most

serious impacts of global warming” is "much more likely to

occur” if other countries reduce motor vehicle emissions, and,

in addition, there is "progress in limiting other emissions."”*

In other words, effectively addressing an international issue

like global climate change requires world-wide reductions, not

®° 42 U.S.C. § 7521(a)(1).

- See Declaration of Michael McCracken, 4 31 (loint App. 238).

*” Declaration of Michael Walsh 12 (oint App. 245).

- Declaration of Michael McCracken. 4 31 (Joint App. 238).

ea3e

simply reductions trom U.S. sources alone. The Act, however,

authorizes reductions from U.S. sources that will meaningfully

and effectively protect public health and welfare. The Act does

not, therefore, authorize regulation to address global climate

change.

CONCLUSION

Section 202(a)(1) does not give EPA the authority to limit

emissions from new motor vehicles and engines in the United

States to address global climate change, which is caused by

emissions from around the world. Instead, the Clean Air Act is

designed to actually achieve air quality goals that will

successfully protect public health and welfare by reducing the

emission of air pollutants from sources within the United

States.

The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

Michael A. Cox

Michigan Attorney General

Thomas L. Casey

Michigan Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, MI 48909

Telephone: (517) 373-1124

Alan F. Hoffman

Neil D. Gordon

Assistant Attorneys Gencral

Attorneys for the State of

Michigan

Dated: October, 2006

a ee

ou

STATE RESPONDENTS’ APPENDIX

42 U.S.C. § 7409. National primary and

secondary ambient air quality standards.................:s000+ Ib

42 U.S.C. § 7410. State implementation

plans for national primary and secondary

ambient air quality standards.................ccccccsseeceeereereerees 3b

42 U.S.C. § 7521. Emission standards

for new motor vehicles or new motor

RIP GENIE cco ccnasesemerssscenesssonsensenscenscsneesceanssessossiioene 12b

Ib

42 U.S.C. § 7409. National primary and secondary ambient

air quality siandards

(a) Promulgation

(1) The Administrator—

(A) within 30 days after the date of enactment of the

Clean Air Amendments of 1970 [enacted Dec. 31,

1970], shall publish proposed regulations prescribing a

national primary ambient air quality standard and a

national secondary ambient air quality standard for each

air pollutant for which air quality criteria have been

issued prior to such date of enactment; and

(B) after a reasonable time for interested persons to

submit written comments thereon (but no later than 90

days after the initial publication of such proposed

standards) shall be regulation promulgate such

proposed national primary and secondary ambient air

quality standards with such modifications as he deems

appropriate.

(2) With respect to any air pollutant for which air

quality criteria are issued after the date of enactment of the

Clean Air Amendments of 1970 [enacted Dec. 31, 1970],

the Administrator shall publish, simultaneously with the

issuance of such criteria and information, proposed national

primary and secondary ambient air quality standards for

any such pollutant. The procedure provided for in

paragraph (1)(B) of this subsection shall apply to the

promulgation of such standards.

(b) Protection of public health and welfare

(1) National primary ambient air quality standards,

prescribed under subsection (a) shall be ambient air quality

standards the attainment and maintenance of which in the

2b

judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to

protect the public health. Such primary standards may be

revised in the same manner as promulgated.

(2) Any national secondary ambient air quality standard —

prescribed under subsection (a) shall specify a level of air

quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known or

anticipated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary

standards may be revised in the same manner as

promulgated.

3b

42 U.S.C. § 7410. State implementation plans for national

primary and secondary ambient air quality standards

(a) Adoption of plan by State; submission to

Administrator; content of plan; revision; new sources;

indirect source review program; supplemental or

intermittent control systems

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator, within 3

years (or such shorter period as the Administrator may

prescribe) after the promulgation of a national primary

ambient air quality standard (or any revision thereof) under

section 109 [42 USCS § 7409] for any air pollutant, a plan

which provides for implementation, maintenance, and

enforcement of such primary standard in each air quality

contro] region (or portion thereof) within such State. In

addition, such State shall adopt and submit to the

Administrator (either as a part of a plan submitted under the

preceding sentence or separately) within 3 years (or such

shorter period as the Administrator may prescribe) after the

promulgation of a national ambient air quality secondary

standard (or revision thereof), a plan which provides for

implementation, maintenance, and enforcement of such

secondary standard in each air quality control region (or

portion thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan

implementing such secondary standard at the hearing

required by the first sentence of this paragraph.

(2) Each implementation plan submitted by a State

under this Act shall be adopted by the State after reasonable

notice and public hearing. Each such plan shall—

(A) include enforceable emission limitations and

other control measures, means, or techniques (including

economic incentives such as fees, marketable permits,

and auctions of emissions rights), as well as schedules

4b

and timetables for compliance, as may be necessary or

appropriate to meet the applicable requirements of this

Act;

(B) provide for establishment and operation of

appropriate devices, methods, systems, and procedures

necessary to—

(i) monitor, compile, and analyze data on

ambient air quality, and

(ii) upon request, make such data available to

the Administrator;

(C) include a program to provide for the

enforcement of the measures described in subparagraph

(A), and regulation of the modification and construction

of any stationary source within the areas covered by the

plan as necessary to assure that national ambient air

quality standards are achieved, including a permit

program as required in parts C and D [42 USCS §§

8470 et seq., 7502 et seq.];

(D) contain adequate provisions—

(i) prohibiting, consistent with the provisions of

this title, any source or other type of emissions

activity within the State from emitting any air

pollutant in amounts which will—

(I) contribute significantly to nonattainment

in, or interfere with maintenance by, any other

State with respect to any such national primary

or secondary ambicnt air quality standard, or

(11) interfere with measures required to be

included in the applicable implementation plan

for any other State under part C [42 USCS §$§

Sb

7470 et seq.] to prevent significant deterioration

of air quality or to protect visibility,

(ii) insuring compliance with the applicable

requirements of sections 126 and 115 [42 USCS §§

7426, 7415} (relating to interstate and international

pollution abatement);

(E) provide (i) necessary assurances that the State

(or, except where the Administrator deems

inappropriate, the general purpose local government or

governments, or a regional agency designated by the

State or general purpose local governments for such

purpose) will have adequate personnel, funding, and

authority under State (and, as appropriate, local) law to

carry Out such implementation plan (and is not

prohibited by any provision of Federal or State law

from carrying out such implementation plan or portion

thereof), (ii) requirements that the State comply with

the requirements respecting State boards under section

128 [42 USCS § 7428], and (iii) necessary assurances

that, where the State has relied on a local or regional

government, agency, Or instrumentality for the

implementation of any plan provision, the State has

responsibility for ensuring adequate implementation of

such plan provision;

(F) require, as may be prescribed by the

Administrator—

(i) the installation, maintenance, and

replacement of equipment, and the implementation

of other necessary steps, by owners or operators of

stationary sources to monitor emissions from such

sources,

6b

(1i) periodic reports on the nature and amounts

of emissions and emissions-related data from such

sources, and

(iii) correlation of such reports by the State

agency with any emission limitations or standards

established pursuant to this Act, which reports shall

be available at reasonable times for public

inspection;

(G) provide for authority comparable to that in

section 303 [42 USCS § 7603] and adequate

contingency plans ic implement such authority;

(H) provide for revision of such plan—

(i) from time to time as may be necessary to

take account of revisions of such national primary

or secondary ambient air quality standard or the

availability of improved or more expeditious

methods of attaining such standard, and

(ii) except as provided in paragraph (3)(C),

whenever the Administrator finds on the basis of

information available to the Administrator that the

plan is substantially inadequate to attain the national

ambient air quality standard which it implements or

to otherwise comply with any additional

requirements established under this Act;

(I) in the case of a plan or plan revision for an area

designated as a nonattainment area, meet the applicable

requirements of part D [42 USCS §§ 7502 et seq.]

(relating to nonattainment areas);

(J) meet the applicable requirements of section 121

[42 USCS § 7421] (relating to consultation), section

127 [42 USCS § 7427] (relating to public notification),

7b

and part C {42 USCS §§ 7470 et seq.]} (relating to

prevention of significant deterioration of air quality and

visibility protection);

(K) provide for—

(i) the performance of such air quality modeling

as the Administrator may prescribe for the purpose

of predicting the effect on ambient air quality of any

emissions of any air pollutant for which the

Administrator has established a national ambient air

quality standard, and

(ii) the submission, upon request, of data related

to such air quality modeling to the Administrator,

(L) require the owner or operator of each major

stationary source to pay to the permitting authority, as a

condition of any permit required under this Act, a fee

sufficient to cover—

(i) the reasonable costs of reviewing and acting

upon any application for such a permit, and

(ii) if the owner or operator receives a permit for

such source, the reasonable costs of implementing

and enforcing the terms and conditions of any such

permit (not including any court costs or other costs

associated with any enforcement action), until such

fee requirement is Superseded with respect to such

sources by the Administrator's approval of a fee

program under title V [42 USCS §§ 7661 et seq];

and

(M) provide for consultation and participation by

local political subdivisions affected by the plan.

(3) (A) [Repealed] -

(B) As soon as practicable, the Administrator shal},

consistent with the purposes of this Act and the Energy ~

Supply and Environmental Coordination Act of 1974,

review each State's applicable implementation plans

and report to the State on whether such plans can be

revised in relation to fuel burning stationary sources (or

persons supplying fuel to such sources) without

interfering with the attainment and maintenance of any

national ambient air quality standard within the period

permitted in this section. If the Administrator

determines that any such plan can be revised, he shall

notify the State that a plan revision may be submitted

by the State. Any plan revision which is submitted by

the State shall, after public notice and opportunity for

public hearing, be approved by the Administrator if the

revision relates only to fuel burning stationary sources

(or persons supplying fuel to such sources), and the

plan as revised complies with paragraph (2) of this

subsection. The Administrator shall approve or

disapprove any revision no later than three months after

its submission.

(C) Neither the State, in the case of a plan (or

portion thereof) approved under this subsection, nor the

Administrator, in the case of a plan (or portion thereof)

promulgated under subsection (c), shall be required to

revise an applicable implementation plan because one

or more exemptions under section 118 [42 USCS §

7418] (relating to Federal facilities), enforcement

orders under section 113(d), suspensions under section

110(f) or (g) [subsecs. (f) or (g) of this section] (relating

to temporary energy or economic authority), orders

under section 119 [42 USCS § 7419](relating to

primary nonferrous smelters), or extensions of

compliance in decrees entered under section 113(e)

(relating to iron- and steel-producing operations) have

been granted, if such plan would have met the

9b

requirements of this section if no such exemptions,

orders, or extensions had been granted.

(4) [Repealed]

(5) (A) (i) Any State may include in a State

implementation pian, but the Administrator may not

require as a condition of approval of such plan

under this section, any indirect source review

program. The Administrator may approve and

enforce, as part of an applicable implementation

plan, an indirect source review program which the

State chooses to adopt and submit as part of its plan.

(ii) Except as provided in subparagraph (B), no

plan promulgated by the Administrator shail include

any indirect source review program for any air

quality control] region, or portion thereof.

(iii) Any State my revise an applicable

implementation plan approved under section | 10(a)

[42 USCS § 7410(a)] to suspend or revoke any such

program included in such plan, provided that such

plan mects the requirements of this section.

(B) The Administrator shall have the authority to

promulgate, implement and enforce regulations under

section 110(c) [42 USCS § 7410(c)] respecting indirect

source review programs which apply only to federally

assisted highways, airports, and other major federally

assisted indirect sources and federally owned or

operated indirect sources.

(C) For purposes of this paragraph, the term

"indirect source" means a facility, building, structure,

installation, real property, road, or highway which

attracts, or may attract, mobile sources of pollution.

Such term includes parking lots, parking garages, and

10b

other facilities subject to any measure for management

of parking supply (within the meaning of section

110(cK2(D)ii) [42 USCS § 7410(cK2)(D\ii)]),

including regulation of existing off-street parking but

such term does not include new or existing on-street

parking. Direct emissions sources or facilities at,

within, or associated with, any indirect source shall not

be deemed indirect sources for the purpose of this

paragraph.

(D) For purposes of this paragraph the term

"indirect source review program” means the facility-by-

facility review of indirect sources of air pollution,

including such measures as afe necessary to assure, or

assist in assuring, that a new or modified indirect source

will not attract mobile sources of air pollution, the

emissions from which would cause or contribute to air

pollution concentrations—

(i) exceeding any national primary ambient air

quality standard for a mobile source-related air

pollutant after the primary standard attainment date,

or

(ii) preventing maintenance of any such

standard after such date.

(E) For purposes of this paragraph and paragraph

(2)(B), the term “transportation control measure" does

not include any measure which is an “indirect source

review program".

(6) No State plan shall be treated as meeting the

requirements of this section unless such plan provides that

in the case of any source which uses a supplemental, or

intermittent control system for purposes of meeting the

requirements of an order under section 113(d) or section

119 (relating to primary nonferrous smelter orders) [42

1lb

USCS § 7419], the owner or operator of such source may

not temporarily reduce the pay of any employee by reason

of the use of such supplemental or intermittent or other

dispersion dependent control system.

12b

42 U.S.C. § 7521. Emission standards for new motor

vehicles or new motor vehicle engines

(a) Authority of Administrator to prescribe by

regulation

Except as otherwise provided in subsection (b) of this

section—

(1) The Administrator shall by regulation prescribe

(and from time to time revise) in accordance with the

provisions of this section, standards applicable to the

emission of any air pollutant from any class or classes

of new motor vehicles or new motor vehicle engines,

which in his judgment cause, or contribute to, air

pollution which may reasonably be anticipated to

endanger public health or welfare. Such standards shall

be applicable to such vehicles and engines for their

useful life (as determined under subsection (d), relating

to useful life of vehicles for purposes of certification),

whether such vehicles and engines are designed as

complete systems or incorporate devices to prevent or

control such pollution.