Respondents Brief — Massachusetts v. EPA

Vers wen

FILED

QIgt OCT 2 4 2006

33 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT

UTILITY AIR REGULATORY GROUP

NORMAN W. FICHTHORN

(Counsel of Record)

ALLISON D. Woop

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Respondent

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether, in this challenge to the Environmental Pro-

tection Agency’s (“EPA”) denial of a petition for rulemaking

on greenhouse gas emissions from new motor vehicles under

section 202(a)(1) of the Clean Air Act, 42 U.S.C. 7521(a)(1),

petitioners established standing, i.e., that they suffer concrete,

particularized, and imminent injury that was caused by

EPA’s denial of the petition and that would be redressed by a

judicial decision in their favor.

2. Whether it was within EPA’s discretion to deny the

petition for rulemaking based on scientific uncertainty and

other policy factors.

3. | Whether EPA’s determination that it does not have

authority under the Clean Air Act to regulate new motor ve-

hicles’ greenhouse gas emissions comported with and re-

flected a reasonable interpretation of that statute.

PARTIES TO THE PROCEEDING

The parties are listed in the Brief for the Petitioners. Pur-

suant to Rule 29.6, Respondent Utility Air Regulatory Group

filed a disclosure statement in its brief in opposition to the

petition for a writ,of certiorari, and that statement remains

accurate.

il

TABLE OF CONTENTS

Page

ee I cicscvconisictccncesscasesinesessonessosnsstionatets i

PARTIES TO THE PROCEEDING. .............cccccsssosssssesosessees li

ee i Fre ecterscsterincncensessncocsceovesevesesentnsenesee Vv

Tee Ce CRS CATES cnneccccceccceiioccssccessesveserevcesecoseces l

1. The Petition For Rulemaking ................:csccceeeeseeeeeees ]

II. EPA’s Response To The Petition For Rule-

ee recsicessiiericipriniiennsintasaanetitiamgonstintisinnniemnnniianion 3

III. The Court Of Appeals’ Decision................cccceseceeeeees 6

SUPEIEARY OF ABRISUMENT ..0ccececsessssosesovecessssseccsscssoveesess 6

IIIT siistedisistscbaatabchaeisdensaniniabatniiieipnsbinaeiaieeeeeaiidiadian 9

I. This Case Must Be Dismissed Because Peti-

I ee SN cence ctscecenssenceescninceiesinnenctiibervsonnniees 9

A. The Record Does Not Demonstrate Direct

And Imminent Injury To Petitioners. ................. 1]

B. Petitioners Showed Neither That EPA’s

Denial Of The Rulemaking Petition

Caused Their Alleged Harm Nor That A

Favorable Decision Would Redress That

I ia a 13

1. Petitioners Failed To Show Causation. ........ 14

2. Petitioners Failed To Show Redress-

II. In Declining To Undertake Rulemaking, EPA

Exercised Its Administrative Discretion Rea-

sonably And Consistently With The Act.................. 25

A. Under Fundamental Principles Of Admin-

istrative Law, EPA’s Denial Of The Peti-

tion For Rulemaking Was Well Within Its

II, iccvnsitntiinincnnteitincitatsiideseceliee iene 26

B. The Court Of Appeals’ Decision Is Fully

Consistent With The Clean Air Act. .................. 30

Ill. EPA Lacks Authority Under CAA Section

202(a)(1) To Regulate Greenhouse Gas Emis-

sions To Address Global Climate Change. .............. 39

CSET IIS ccc vessscsssceececesnermnansetsennsssianlenininninmaimaiale 50

iV

TABLE OF AUTHORITIES

Page

Cases:

Allen v. Wright, 468 U.S. 737 (1984) .0.0....:cccccccceceeceseeeeeeeeeees 9

American Horse Protection Ass'n v. Lyng,

ie fT od ee 26, 28, 29, 33

Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv.

| eee 44

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) .0.0......cccccc000 22

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534

taliban niaatinatandciniencscqmneenetenssastnets 10

Cellnet Communication, Inc. v. FCC, 965 F.2d 1106

tea eaeninedtnpsnarmmennsneneennennenete 26

Chevron v. NRDC, 467 U.S. 837 (1984)..0.........ccccccecc00e 39, 50

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ......... 11,13

DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854

he 9,10, 11,22

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. |

EE 9

Environmental Def. Fund v. EPA, 598 F.2d 62 (D.C.

EE LEE A ED 36

Environmental Def. Fund v. Thomas, 870 F.2d 892

(2d Cir. 1989)......... i aledeadaebedbientbmatndneeutebetinatineienete 37, 38

Ethyl Corp. v. EPA, 541 F.2d |

EE 3, 30, 31, 33, 36

Ex Parte Levitt, 302 U.S. 633 (1937) .o.....cccccccccccecceeeeeee 11,13

Vv

Cases—Continued: | Page

FDA v. Brown & Williamson Tobacco Corp.,

SE ae 3, 39, 47, 49, 50

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)......9, 11

International Center for Technology Assessment v.

Whitman, No. 02-2376 (D.D.C., filed Dec. 5, 2002) ....... 3

Jones v. United States, 527 U.S. 373 (1999)..........ccccccceceeeee 39

King v_St. Vincent's Hosp., 502 U.S. 215 (1991)...........00.. 39

Lujan v. Defenders of Wildlife, 504 U.S. 555

eet iesiidhsncniesinnitninniehaiiciapiaiaitabiaiieiis 10, 11, 13, 14, 20, 23, 24

McConnell v. FEC, 540 U.S. 93 (2003) ............ccccceceeeeceeneees 13

National Customs Brokers & Forwarders Ass'n v.

United States, 883 F.2d 93 (D.C. Cir. 1989)............ 26, 28

NRDC v. EPA, No. 04-1438, 2006 WL 2472144 (D.C.

Se I aa. Se ccthcernccnaneeitesnttngecntimpneaneanetninigntniin 4)

NRDC v. SEC, 606 F.2d 1031 (D.C. Cir. 1979).......27, 29, 37

Renne v. Geary, 501 U.S. 312 (1991) 20.0.0... eccecceeeeeeeeeeeeeees 9

Shain v. Veneman, 376 F.3d 815 (8th Cir. 2004), cert.

Gee, SED BD. Ce i ccecestsenssssscrenstasesinnnseinniseee 13

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987)....... 38

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26

PU uiiicsntieiciniestslheinansadaibtabasitcaiaimmtiviiiiininetinpnidaiimaduiit 14, 18

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83

CETTE cexsinciseseatinintuninsictciaiaedaiedeiatmamsiinasininieniseniuniateanidiniaainands 9

Timpinaro v. SEC, 2 F.3d 453 (D.C. Cir. 1993) ..00.0..0..2..... 26

Train v. Colorado PIRG, 426 U.S. 1 (1976) .0..........cccccccee0es 39

vi

Cases—C ontinued: . Page

Train v. NRDC, 421 U.S. 60 (1975)........-c-ceceseseseseserseneneseees 47

Union Electric Co. v. EPA, 427 U.S. 246 (1976)............000++ 48

United States v. Craft, 535 U.S. 274 (2002) ...........2.ccccc0000 44

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

Ta csceiiteesicstatniensinenisinsnapeietontinatinancipentnaammnsianepascimainmnaiannintns 46

Warth v. Seldin, 422 U.S. 490 (1975) .....c.ccccccecsececereeeeeceneees 10

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

SIE cicntnniindinianiaibtidetinistapnamunnienmmnitimsenemetion 39, 45

Whitmore v. Arkansas, 495 U.S. 149 (1990).............. 9,11,13

WWHT, Inc. v. FCC, 656 F.2d 807

8 Renee 26, 27, 28, 29, 37

Statutes:

5 U.S.C. 553(e) (2000 & Supp. TV 2004) oe. ccceeeeneeeeees 1

5 U.S.C. 555(b) (2000 & Supp. IV 2004) 20. eeeeeeeeeeeeee 3

5 U.S.C. 555(e) (2000 & Supp. TV 2004) ................ 25, 29, 33

42 U.S.C. 7403(a) (2000 & Supp. IIT 2003) 00.0... ececeeeee 46

42 U.S.C. 7403(g) (2000 & Supp. IL 2003)... eee 40

42 U.S.C. 7408(a)(1)(B) (2000 & Supp. III 2003)............... 49

42 U.S.C. 7408(a)(2) (2000 & Supp. II 2003) ...........0...0.... 49

42 U.S.C. 7409(b)(1) (2000 & Supp. Il 2003) ....0.0000000.... 49

42 U.S.C. 7409(b)(2) (2000 & Supp. Hl 2003)... 49

42 U.S.C. 7409(d) (2000 & Supp. IIT 2003)... ee 37

ie Se nctinsestaricsctinlenietcesiiuinpiierictcaaiaiabatsiai 4)

eas PI Echt icinrieesiehietiedaensidiaiiiaaitastareiptlietaiintibemeatienasiin 42

vil

Statutes—C ontinued: Page

42 U.S.C. 7521(a)(1) (2000 & Supp. III 2003).............. passim

42 U.S.C. 7521(a)(2) (2000 & Supp. III 2003)......... 14, 24, 25

42 U.S.C. 7521(a)(4(A) (2000 & Supp. Ill 2003).............. 24

42 U.S.C. 7521(b)(2) (2000 & Supp. IIT 2003)... 37

42 U.S.C. 7521(i)(1) (2000 & Supp. HT 2003)... 38

42 U.S.C. 7521(i)(2) (2000 & Supp. HI 2003)............cc00000 38

42 U.S.C. 7521(i)(2)(A) (2000 & Supp. III 2003).............. 49

42 U.S.C. 7521(i)(2)(B) (2000 & Supp. III 2003) .............. 38

42 U.S.C. 7521(i)(3)(A) (2000 & Supp. II] 2003) ..........-... 38

42 U.S.C. 7602 (2000 & Supp. IIT 2003) ..........ccscesesseeceeee 45

42 U.S.C. 7602(g) (2000 & Supp. II] 2003)...............-« passim

42 U.S.C. 7602(h) (2000 & Supp. Ill 2003).........0......-. 45, 49

42 U.S.C. 7651k Note (2000 & Supp. III 2003) ...........0..... 40

42 U.S.C. 7671-7671 (2000 & Supp. HI 2003) .............0.0- 41

42 U.S.C. 767 1a(e) (2000 & Supp. IT 2003) .........ccc0ce0e0000 40

49 U.S.C. 32901-32919 (2000 & Supp. III 2003).........c000000 4

Regulations:

40 C.F.R. 50.1(€) (2006) .......ccccccvesessesssssseesseesssseesecsessnveeeees 47

Federal Register:

36 Fed. Reg. 22,369 (1971) ......c.ccscsvssssssssscsssesssssstsueeeeeeesee 47

59 Fed. Reg. 13,044 (1994) .......cccccccccsssssvssesesessscececeesessevenee 46

59 Fed. Reg. 16,262 (1994) .........cccccccvcssssssesececessesssseseeseeenee 25

i I cecil 45

Federal Register—Continued: Page

SD a Ge ee crenrerncnsssencntsccemmmemessnnnmmn 45

Se SE eRe ctenesnnssecninticnreiemnentccneeman 46

ey Pe crrrcncecinsccsenenssnincitinnaiatnentnntantsinininiiiis 3

ee, See I ccitcrtcnssnntnntenienensenscendinnnitsunisinienisi 46

Legislative Materials:

hs Re CD tec ceccenmnsecernetnniccmnmatcenersinnis 43

TE 43,44

TE 43

eT ae 47

Pub. L. No. 101-549, § 821 (1990) 200.0 eeetseteeseeeeeeeeee 40

Miscellaneous: .

International Pa: =] on Climate Change, Climate

Change: The iPCC Scientific Assessment (1990) ......... 48

National Research Council, Climate Change Sci-

ence: An Analysis of Some Key Questions

Sart cncciipluithtaieimciigatiitisaleniipaslobetiniutlinaniindiadicties 5, 33, 34, 35, 48

ix

BRIEF FOR RESPONDENT

UTILITY AIR REGULATORY GROUP

STATEMENT OF THE CASE

This case involves review of the U.S. Environmental Pro-

tection Agency’s (“EPA” or “Agency”) denial of a petition

for rulemaking asking it to regulate greenhouse gas emissions

from new motor vehicles under section 202(a)(1) of the

Clean Air Act (“CAA” or “Act”), 42 U.S.C. 7521(a)(1), to

address global climate change. Petition for Rulemaking and

Collateral Relief Seeking the Regulation of Greenhouse Gas

Emissions from New Motor Vehicles Under § 202 of the

Clean Air Act (Oct. 20, 1999), Joint Appendix (“J.A.”) 5;

EPA, Control of Emissions From New Highway Vehicles

and Engines, Notice of denial of petition for rulemaking, Ap-

pendix to Cert. Pet. (“Pet App.”) AS9. Petitioners sought

review of EPA’s denial in the United Staies Court of Appeals

for the District of Columbia Circuit. In a divided opinion,

that court held that EPA properly exercised its discretion in

denying the petition. Pet. App. Al (Randolph, J.); id. at Al6

(Sentelle, J., concurring in the judgment).

I. The Petition For Rulemaking

The International Center for Technology Assessment

(“ICTA”) and 18 other entities’ filed the petition for rule-

making in 1999 under the Administrative Procedure Act

(“APA”), asking EPA to regulate emissions of carbon diox-

ide (“CO,”) and three other greenhouse gases (methane, ni-

' The entities that filed the petition for rulemaking are listed at J.A. 7-11.

They include four of the petitioners in this case’ ICTA, Environmental

Advocates, Fnends of the Earth, and Greenpeace.

? JA. 6 (citing 5 U.S.C. 553(e)).

2

trous oxide, and hydrofluorocarbons) from new motor vehi-

cles and new motor vehicle engines under section 202(a)(1)

of the Act for the purpose of addressing artes climate

change. That provision states:

The Administrator [of EPA] shall by regulation pre-

scribe (and from time to time revise) in accordance

with the provisions of this section, standards applica-

ble to the emission of any air pollutant from any class

or classes of new motor vehicles or new motor vehicle

engines, which in his judgment cause, or contribute to,

air pollution which may reasonably be anticipated to

endanger public health or welfare.

42 U.S.C. 7521(a)(1). After setting out their views of the

health and welfare consequences of greenhouse gases in the

global atmosphere, the petitioners argued that “[ujnder the

CAA, the Administrator [of EPA] is permitted to make a pre-

cautionary decision to regulate pollutants in order to protect

public health and welfare” and that “[{i]n addition . . ., the

Administrator has a mandatory duty ‘to regulate greenhouse

gas emissions from new motor vehicles under § 202(a)(1) of

the CAA.” J.A. 15.

Addressing their “mandatory duty” claim, the petitioners

claimed the Administrator already had “determined that: (1)

the emission of a greenhouse gas is an ‘air pollutant’ and is

emitted from new motor vehicles; and (2) the emission

causes or contributes to air pollution which may reasonably

be anticipated to endanger public health or welfare.” J.A. 16

(emphases omitted); see id. at 18 (asserting EPA already had

determined “that CO) meets the definition [of “air pollutant”

contained in [CAA] § 302(g) [42 U.S.C. 7602(g)]”) (citing a

memorandum and congressional testimony by EPA general

3

counsels).’ In addition, in light of what they characterized as

EPA’s “authority to use precaution when regulating air pol-

lutants,” id. at 42 (citing Ethyl Corp. v. EPA, 541 F.2d |

(D.C. Cir. 1976) (en banc) (Wright, J.)), the petitioners urged

EPA to conduct rulemaking even if it “believe[d] that there

are scientific uncertainties regarding the actual impacts from

global warming.” /d. at 41-42.

Il. EPA’s Response To The Petition For Rulemaking

EPA solicited public comment on the petition for rule-

making. 66 Fed. Reg. 7486 (2001). Thereafter, certain peti-

tioners filed suit in the U.S. District Court for the District of

Columbia to enforce their APA right, see 5 U.S.C. 555(b),

(e), to a reasonably timely response to the petition. /nterna-

tional Center for Technology Assessment v. Whitman, No.

02-2376 (D.D.C., filed Dec. 5, 2002). EPA’s denial of the

petition at issue here mooted that case. See id., Order of

Sept. 24, 2003 (dismissing case as moot on parties’ joint mo-

tion); Pet. App. AS9 (EPA notice of denial of petition for

rulemaking).

EPA set forth three grounds for its denial of the petition.

First, based on the Act’s language and legislative history,

other statutes, congressional decisions, and statutory interpre-

tation principles underlying FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000), EPA determined it

lacked authority under the CAA to regulate greenhouse gas

* Petitioners supported their assertion that the Administrator already had

determined that section 202(a)(1)’s criteria for regulation were met for

these gases by relying on statements from an EPA website discussing

various possible effects of global warming generally, see, e.g., J.A. 22,

26, 29, 30, 31, 32, 34, non-EPA sources, such as a report of the United

Nations Intergovernmental Panel on Climate Change (“IPCC”), see id. at

22-23, 25-28, 33-35, an article in a medical journal, see id. at 24-25, and a

physician’s statement, see id. at 33.

4

emissions for the purpose of addressing global climate

change. Pet. App. A69-A79. The Agency said that “[i]n

light of Congress’ attention to the issue of global climate

change, and the absence of any direct or even indirect indica-

tion that Congress intended to authorize regulation under the

CAA to address global climate change, it is unreasonable to

conclude that the CAA provides the Agency with such au-

thority.” Jd. at A78.

Second, EPA determined that even if the CAA authorized

it to regulate greenhouse gas emissions to address global cli-

mate change, granting the rulemaking petition would imper-

missibly conflict with Title V of the Energy Policy and Con-

_ servation Act (“EPCA”), 49 U.S.C. 32901-32919, which

gives sole authority to set motor vehicle fuel economy stan-

dards to the U.S. Department of Transportation. Pet. App.

A79-A80. EPA found that “[a]t present, the only practical

way to reduce tailpipe emissions of CO, [the most prevalent

greenhouse gas] is to improve fuel economy.” /d. at A79.

EPA concluded that “any EPA effort to set CO) tailpipe stan-

dards under the CAA would cither abrogate EPCA’s regime

(if the standards were effectively more stringent than the ap-

plicable [fuel economy] standard) or be meaningless (if they

were effectively less stringent).” /d. at A80.

Third, EPA determined that, assuming arguendo that it

had authority to regulate greenhouse gas emissions to address

global climate change, section 202(a)(1) of the CAA—the

provision at issue—gives EPA’s Administrator discretion to

determine “in his judgment” whether, based on the facts be-

fore the Agency, the emissions in question “may reasonably

be anticipated to endanger public health or welfare.” 42

U.S.C. 7521(a)(1). EPA observed that the Administrator had

never made a determination under the CAA that greenhouse

gas emissions may reasonably be anticipated to endanger

public health or welfare and that the timing of any endan-

5

germent determination is within his discretion. Pet. App.

A80-A81. EPA thus determined that, contrary to the peti-

tioners’ argument, it had no mandatory duty to undertake

rulemaking. Moreover, EPA concluded that the scientific

evidence before it in reviewing the petition, including the Na-

tional Research Council’s report, Climate Change Science:

An Analysis of Some Key Questions (2001) (“NRC Report”),

was “extraordinarily complex and still evolving” and re-

flected “‘considerable uncertainty in current understanding of

how the climate system varies naturally and reacts to emis-

sions of [greenhouse gases].’” Pet. App. A83 (quoting NRC

Report). EPA also observed that, given the global nature of

atmospheric concentrations of COb, it is “extremely difficult

to evaluate” to what extent any “effects in the U.S. would be

related to anthropogenic [CO2] emissions in the U.S.” Jd. at

A73.

In light of the scientific uncertainty on these critical is-

sues, EPA found no basis for making an endangerment de-

termination and regulating motor vehicles’ greenhouse gas —

emissions under section 202(a) of the CAA. /d. at A86 (de-

clining to regulate “[u)ntil more is understood about the

causes, extent and significance of climate change”). EPA

concluded that “establishing [greenhouse gas] emission stan-

dards for U.S. motor vehicles at this time would require EPA

to make scientific and technical judgments without the bene-

fit of the studies being developed to reduce uncertainties and

advance technologies.” /d. at A85. EPA also referred to ad-

ditional policy factors counseling against granting the peti-

tion: the risk that imposing domestic emission controls

would undermine efforts to negotiate global climate change

solutions with foreign governments; inefficiencies associated

with piecemeal regulation; and technological limitations. See

id. at A85-A87. Accordingly, EPA determined that, even if it

6

had authority under the CAA to undertake rulemaking, it had

neither an obligation nor a sound basis to do so.

III. The Court Of Appeals’ Decision

Without deciding whether section 202(a)(1) or any other

CAA provision authorizes EPA to regulate for global climate

change purposes, see id. at Al0 & n.1, the D.C. Circuit, in a

lead opinion authored by Judge Randolph, denied the peti-

tions, holding that, even assuming arguendo EPA has such

authority, it properly exercised its discretion in denying the

rulemaking petition. Jd. at All-A15 ‘Randolph, J.); see also

id. at A20 (Sentelle, J., concurring in the judgment). Judge

Sentelle found that petitioners lacked standing because they

failed to show particularized injury, id... A16-A19; he there-

fore would have dismissed the petitions tor review for lack of

jurisdiction. Judge Sentelle nevertheless joined in the judg-

ment denying the petitions because, in his view, a panel ma-

jority (consisting of Judges Randolph and Tatel) “h{ejid{]}

that we have jurisdiction to render judgment,” and because

denial of those petition was the “judgment closest to that

which | myself would issue.” /d. at A20 (Sentelle, J.). But

see id. at A21 (“Judge Randolph does not resolve whether

petitioners have standing.”) (Tatel, J., dissenting). Judge

Tatel found that at least one petitioner (Massachusetts) had

standing, id. at A27, and he-dissented from the panel’s judg- —

ment on the merits, concluding that EPA had “misinterpreted

the scope of its statutory authority” and had provided a le-

gally inadequate justification for the petition denial, id. at

A58. The court denied petitions for rehearing. /d. at A94-

A98.

SUMMARY OF ARGUMENT

Petitioners seek to use this litigation as part of an effort to

effect a momentous reversal of the federal government’s pol-

7

icy on global climate change—an issue with sweeping impli-

cations for our nation’s domestic and international affairs.

Congress and the President have determined that the nation’s

interests are best served by approaches to global climate

change that involve supporting climate change research, de-

veloping and deploying advanced technologies, encouraging

voluntary projects to limit greenhouse gas emissions, and

pursuing diplomatic negotiations to achieve international

agreements. Congress and the President have deliberately

eschewed mandatory greenhouse gas emission reduction re-

quirements.

Dissatisfied with the results of the political process, peti-

tioners urge this Court to hold that EPA wrongly concluded it

lacks authority under the CAA to impose such emission re-

duction requirements. They argue also that EPA, in declin-

ing to initiate rulemaking, reached an incorrect conclusion in

its consideration of scientific uncertainty in the record before

it and erred by weighing other factors that Executive Branch

agencies may properly consider in deciding whether and

when to commit their administrative resources to new rule-

making. Petitioners’ arguments must be rejected.

First, the Court should dismiss these cases because peti-

tioners lack standing. Petitioners failed to show injury-in-

fact because the evidence before the court of appeals—

declarations that speak of projected risks of effects over peri-

ods of decades in the future—demonstrates no imminent, im-

pending harm of the sort this Court repeatedly has required

before a federal lawsuit may proceed. Petitioners also failed

to show that EPA’s decision not to initiate rulemaking to im-

pose limits on certain greenhouse gas emissions from new

motor vehicles in the United States caused their asserted

harm. Petitioners admit that these emissions represent but a

fraction of the worldwide atmospheric concentrations of

greenhouse gases that they assert arc the source of their al-

8

leged harm. Equally important, petitioners did not and can-

not show that reversal of the judgment below would redress

the injuries they clai.n. Indeed, CAA provisions on which

they rely make clear that, even if they were to prevail here, -

emission reductions might well occur, if at all, too late to re-

dress any imminent injury.

Second, the D.C. Circuit properly found that EPA’s denial

of the petition for rulemaking was a permissible exercise of

its broad administrative discretion. Under established admin-

istrative law principles, an agency’s denial of a rulemaking

petition is afforded the highest degree of deference, and

courts should overturn such a decision only in the most ex-

traordinary circumstances. No such circumstances exist here.

EPA met the APA’s requirement that it provide a reasoned

basis for its denial. Moreover, in determining that it was not

appropriate to undertake rulemaking in response to the peti-

tion, EPA properly relied on evidence of scientific uncer-

tainty in the record before it and properly considered othcr,

pertinent policy factors. Further, unlike some other provi-

sions of the Act, section 202(a)(1) does not constrain EPA’s

authority to determine when rulemaking may be appropriate;

Congress gave EPA broad discretion to decide the timing of

any rulemaking or regulation under that section.

Third, upon reviewing the Act as a whole, its legislative

history, and other relevant congressional actions and enact-

ments, EPA reasonably concluded that it has no authority

under the CAA to regulate greenhouse gas emissions from

new motor vehicles to address global climate change. This

conclusion fully comports with the statute and reflects a per-

missible interpretation that this Court should affirm.

9

ARGUMENT

1. This Case Must Be Dismissed Because Petitioners

Lack Standing.

Parties asking federal courts to adjudicate their claims

must, under Article III of the Constitution, establish their

standing to do so. FW/PBS, Inc. v. City of Dallas, 493 U.S.

215, 231 (1990); see DaimlerChrysler v. Cuno, 126 S. Ct.

1854, 1861 n.3 (2006) (“the party asserting federal jurisdic-

tion when it is challenged has the burden of establishing it”);

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11

(2004) (“In every federal case, the party bringing the suit

must establish standing to prosecute the action.”); Steel Co.

v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998) (“the

party invoking federal jurisdiction bears the burden of estab-

lishing its existence”). Standing “must affirmatively appear

in the record.” FW/PBS, 493 U.S. at 231 (internal quotations

and citation omitted).. Indeed, where, as here, standing is

challenged, federal courts must presume lack of jurisdiction

“unless the contrary appears affirmatively from the record.”

Renne v. Geary, 501 U.S. 312, 316 (1991) (internal quotation

marks and citations omitted), quoted in DaimlerChrysler,

126 S. Ct. at 1861 n.3. This rule follows from the principle

that “[a} federal court is powerless to create its own jurisdic-

tion by embellishing otherwise deficient allegations of stand-

ing.” Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990).

Thus, to avoid dismissal of this case, petitioners must dis-

charge their burden of demonstrating affirmatively—based

on the record before the reviewing court below—that they

satisfy each element of Article III standing: that they (1) suf-

fered actual injury that was (2) “fairly traceable” to EPA’s

denial of their rulemaking petition and (3) “likely” to be re-

dressed by “a favorable decision.” Allen v. Wright, 468 U.S.

737, 751 (1984) (internal quotation marks and citations omit-

10

ted); see also DaimlerChrysler, 126 S. Ct. at 1861 (quoting

Allen, 468 U.S. at 751); Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992). Standing will not be found absent

allegations of “specific, concrete facts demonstrating that the

challenged practices harm [petitioners], and that [petitioners]

personaily would bencfit in a tangible way from the court’s

intervention.” Warth v. Seldin, 422 U.S. 490, 508 (1975).

In the present case, petitioners’ standing was: (1) chal-

lenged by EPA in the court of appeals; (2) found to be absent

by one of the three members of the panel, see Pet. App. Al6

(Sentelle, J., concurring in the judgment); and (3) was ques-

tioned and not clearly found to exist by one of the other three

judges, see id. at A8-A9 (Randolph, J.); id. at A21 (Tatel, J.,

dissenting) (“Judge Randolph does not resolve whether peti-

- tioners have standing”). But see id. at A20 (“The majority

today holds that we have jurisdiction to render judgment

... +”) (Sentelle, J.). Thus, even though petitioners’ constitu-

tional standing was put in issue, the court of appeals articu-

lated no clear holding that standing was present.

After petitioners sought review here, EPA presented a de-

tailed argument that petitioners had failed to demonstrate

standing. Br. for Fed. Resp. in Opp. 10-15. Yet, notwith-

standing that federal appellate courts must always assure

themselves of the existence of their own and any lower

court’s Article II] jurisdiction, Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986), petitioners here offer no

affirmative argument that they have standing. Because the

record discloses no basis for concluding that petitioners sat-

isfy cach element of “the irreducible constitutional minimum

of standing”—injury-in-fact, causation, and redressability—

the petition for review must be dismissed.

A. The Record Does Not Demonstrate Direct And

Imminent Injury To Petitioners.

It is a long-established rule that, where a party secks “to

invoke the judicial power to determine the validity of execu-

tive . . . action,” that party “must show that he has sustained,

or is immediately in danger of sustaining, a direct injury as

the result of that action.” Ex Parte Levitt, 302 U.S. 633, 634

(1937) (emphasis added); see also DaimlerChrysler, 126 S.

Ct. at 1863 (asserted injury must be shown to be “‘immi-

nent’—that . . . is[,] ‘certainly impending””) (quoting Whit-

more, 495 U.S. at 158). To have standing, a party “must

have suffered an ‘injury in fact’—an invasion of a legally

protected interest which is (a) concrete and particularized, . . .

and (b) actual or imminent, not conjectural or hypothetical.”

Lujan, 504 U.S. at 560 (emphasis added; citations and inter-

nal quotation marks omitted). A review of the record—in .

which, as noted above, standing “must affirmatively appear,”

FW/PBS, 493 U.S. at 231—shows that petitioners failed to

demonstrate direct, actual, imminent injury and therefore fail

to meet the injury-in-fact requirement.

For the reasons Judge Sentelle described in his-concurring

opinion, petitioners’ declarations supported at most only

generalized injury. Pet App. A18-A19 (Sentelle, J., concur-

ring). Even accepting arguendo, however, the view that peti-

tioners’ declarations below showed particularized injury,

those declarations establish only a possibility of harm at

some point in the future, not the “actual or imminent” injury

this Court’s decisions require. Lujan, 504 U.S. at 560. Peti-

tioners failed to show they “sustained or [were] immediately

in danger of sustaining some direct injury” from EPA’s de-

nial of the petition. City of Los Angeles v. Lyons, 461 U.S.

12

95, 102 (1983) (emphasis added) (internal quotation marks

and citations omitted).*

The declaration of Michael MacCracken, for example, re-

ferred to computer model simulations that “projected an an-

nual average warming of about 3 to 5°C. . . across the U.S.

during this century.” J.A. 232-33 (emphasis added). Dr.

MacCracken also discussed projections that the 24-hour av-

erage heat index would increase “by at least 6°C . . . over

most of the country by 2/00.” Jd. at 233 (emphasis added).

And he discussed an estimate that effects of projected global

warming “and other factors affecting the amount of water

stored in reservoirs and underground” will cause certain

amounts of sea-level rise “by 2100.” Jd. at 234. “More fre-

quent flooding and inundation,” he added, “have the potential

for developing.” Jd. at 235 (emphasis added).

Similarly, Paul Kirshen’s declaration, on which Judge

Tatel principally relied in arguing that petitioners met the in-

jury-in-fact requirement, see Pet. App. A27 (Tatel, J., dis-

senting), speaks of an average world-wide sea-level rise “by

2100” and says a certain projected sea-level rise “would

mean the future 10-year flood surge elevation would be at the

level of the current 100-year flood elevation and the future

100-year flood surge elevation would be at that of the current

500-year flood elevation.” Kirshen Decl. $j 6, 10 (filed in

the court of appeals in petitioners’ Standing Appendix, Vol.

Il, at 196, 197-98); see id. J 11 (expressing “opinion that

when sea level rises 0.3 meters . . . in the Boston area, we

will experience the equivalent of what we now think of as a

100-year flood every 10 years”), Standing App. 198.

* The petition for rulemaking here sought regulation “to prevent future

harm,” J.A. 21 (emphasis added), not current, demonstrated injury. See

also id. at 35 (petition for rulemaking) (“greenhouse gases will adversely.

affect human health and welfare in the United States”) (emphasis added).

13

Estimated risks of projected effects developing over dec-

ades in the future is not the “concrete,” “imminent,” Lujan,

504 U.S. at 560, “direct,” and “immediately . . . danger[ous]”

harm, Levitt, 302 U.S. at 634, that is necessary for standing.

Indeed, this Court held in 2003 that Senator McConnell

lacked standing to challenge a campaign finance law that

could not apply to him before the 2008 elections. McConnell

v. FEC, 540 U.S. 93, 226 (2003). Because the feared injury

would not be felt immediately—was not, in other words,

“‘certainly impending’”—it was simply “too remote tempo-

rally to satisfy Article III standing.” /d. (emphasis omitted).

If injury a few years away could not, under this Court’s

precedents, give rise to constitutional standing, a projection

of a risk of sea-level rise developing gradually over decades-

long periods in the future cannot suffice. See also Shain v.

Veneman, 376 F.3d 815, 818-19 (8th Cir. 2004) (the risk of

injury from a sewage plant built on a 100-year flood plain

was too “remote”; an “imminent” harm must be “immedi-

ate”), cert. denied, 543 U.S. 1090 (2005).

Accordingly, petitioners made no showing that the “threat

of injury” is “‘real and immediate,’”” Lyons, 461 U.S. at 102,

“*imminent,’” Lujan, 504 U.S. at 564 n.2, and “certainly im-

pending,” Whitmore, 495 U.S. at 158—*“concrete” not only

in a “qualitative” but also in a “temporal sense,” id. at 155.

The “some day” injuries that petitioners allege are inadequate

to support standing. Lujan, 504 U.S. at 564 n.2.

B. Petitioners Showed Neither That EPA’s Denial

Of The Rulemaking Petition Caused Their Al-

leged Harm Nor That A Favorable Decision

Would Redress That Harm.

To survive a standing challenge, petitioners must demon-

strate affirmatively not only injury-in-fact but also “a causal

connection between the injury and the conduct complained

14

of.” Jd. at 560. “[T]he injury has to be ‘fairly . . . trace[able]

to the challenged action of the defendant, and not. . . th{e]

result [of] the independent action of some third party not be-

fore the court.” Jd. (emphasis added) (quoting Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

Furthermore, “it must be ‘likely,’ as opposed to merely

‘speculative,’ that the injury will be ‘redressed by a favorable

decision.”” /d. at 561 (quoting Simon, 426 U.S. at 38, 43).

Petitioners meet neither the causation nor the redressabil-

ity criteria. They failed to establish that their asserted inju-

ries (assuming arguendo that those injuries constituted in-

jury-in-fact for standing purposes) were caused by EPA’s

denial of their petition requesting regulation of greenhouse

gas emissions from new motor vehicles in the United States.

In fact, a review of petitioners’ declarations shows that the

alleged injury is traceable to independent forces beyond the

reach of the regulation petitioners seek. For similar reasons,

petitioners failed to show that it is more than speculative to

suppose that reversing EPA’s denial of the rulemaking peti-

tion would redress their asserted injuries. Indeed, a CAA

provision cited by petitioners—section 202(a)(2), 42 U.S.C.

7521(a)(2), which authorizes potentially prolonged deferral

of the effectiveness of promulgated section 202(a)(1) regula-

tions—highlights the conjectural nature of the notion that the

relicf sought here is “likely” to remedy any “imminent”

harm.

1. Petitioners Failed To Show Causation.

If accepted as true, Petitioners’ declarations indicate at

most that emissions of greenhouse gases from a multitude of

diverse sources across the planet generally will lead to global

climate changes, and that global climate changes in turn will

cause, or create a risk of causing, adverse effects. Petitioners

did not show that EPA’s denial of regulation of greenhouse

EE

——— oe me poy ——

15

gas emissions from new motor vehicles in the United

States—the only sources at issue in this case—caused their

alleged injuries. This is illustrated by Judge Tatel’s dissent-

ing opinion:

As to causation, the declaration of Michael Mac-

Cracken .. . states that global warming is causing sea

level increases like those in Massachusetts [citing

MacCracken Decl. 4 5(c)-(d), J.A. 225]... . Mac-

Cracken further states that global warming is chiefly _

triggered by human-caused [greenhouse gas] emis-

sions, see id. % 5(a)-(b), 12-19 [J.A. 224-25, 229-32],

with “the U.S. transportation sector (mainly automo-

biles) . . . responsible for about 7% of global fossil

fuel emissions,” id. § 31 [J.A. 238].

Pet App. A28. Another of petitioners’ declarations reports

that the percentage of “global [greenhouse gas] emissions”

that is attributable to “U.S. mobile sources, the subject of this

action,” is lower still: 4 percent. Oppenheimer Decl. § 3,

Standing App., Vol. II, at 232. The record thus provides no

basis for concluding that asserted harm from globai climate

change is caused by the limited fraction of worldwide emis-

sions attributed to “the U.S. transportation sector” or “U.S.

mobile sources,” rather than, for example, emissions from

other manmade and natural sources of gascs

around the globe and perhaps other factors.” Furthermore, as

* The MacCracken declaration, for example, suggests some global warm-

ing is traceable to “natural oscillations” im climate. J.A. 230 (“The warm-

ing has also been larger than could be explained by past natural oscilla-

tions in the climate since the end of the last glaciation about 10,000 years

ago.”). Other causes, independent of anthropogenic greenhouse gas

emissions, also are indicated by petitioners’ declarations. See, e.g., Op-

a { 3 (atmospheric greenhouse gas concentrations in part

“reflect . . . loss of forests globally”), Standing App. 232.

16

EPA determined in denying the rulemaking petition, “[t]he

long-lived nature of the CO) global pool would . . . make it

extremely difficult to evaluate the extent over time to which

effects in the U.S. would be related to anthropogenic emis-

sions in the U.S.”—including, of course, emissions from the

U.S. transportation sector. Pet. App. A73.

Even if the U.S. transportation sector were shown to be

responsible, however, one cannot tell from the record

whether the asserted harm would occur but for emissions

from new U.S. motor vehicles—a subset of all U.S. motor

vehicles, itself a subset of the fraction of “global fossil fuel

emissions” attributed by petitioners to “the U.S. transporta-

tion sector.” J.A. 238. This point is critically important be-

cause section 202(a)(1) authorizes regulation only of emis-

sions from new U.S. motor vehicles. It does not, for exam-

ple, authorize control of emissions from “the U.S. transporta-

tion sector,” from all motor vehicles throughout the world, or

even from on-the-road, registered motor vehicles in this

country.

The record also would not support any argument that any

putative current harm is traceable to the challenged EPA de-

cision. The MacCracken declaration suggests that the cause

of alleged injury is a general increase in global “atmospheric

concentrations” of three greenhouse gases “since about 1750

as a result of human activities, principally the combustion of

fossil fuel.” Jd. at 224 (emphasis added). It is this general

increase in global atmospheric concentrations of certain

gases as a consequence of humanity’s activities worldwide

stretching back to the dawn of the Industrial Revolution—nor

EPA’s denial in 2003 of a request to initiate rulemaking to

control emissions from American cars and trucks to be built

in future years—that, in the words of petitioners’ declarant, is

“widely considered to be the major factor responsible for the

17

global warming . . . that occurred during the 20" century.’

Id.

Further, the Kirshen declaration—on which Judge Tatel

relied in arguing that a rise in sea level along the Massachu-

setts coast was traceable to global climate change gener-

ally—aundermines rather than supports attribution of alleged

injuries from that sea-level rise to greenhouse gas emissions

from U.S. motor vehicles. Mr. Kirshen declares that an inde-

pendent, extraneous factor “contributes significantly” to sea-

level rise in Massachusetts:

>’

[I]n the Boston area, /and subsidence also contributes

significantly to sea level rise. Over the past century,

approximately 15 cm (5.9 inches) of the rise in sea

level that has occurred in Boston is attributable to land

subsidence.

Kirshen Decl. 4 6 (emphasis added), Standing App. 197. The

declaration offers no information about what part of this sea-

level rise is due fo global warming, to greenhouse gas emis-

sions generally, or to greenhouse gas emissions from the

transportation sector, motor vehicles, U.S. motor vehicles,

or—what is actually relevant here—new U.S. motor vehicles.

The declaration does disclose, however, that the sea-level rise

(15 centimeters) that Mr. Kirshen says “is attributable” to the

extraneous factor of land subsidence is at the mid-point of the

range of the asserted “global average sea level rise of 10-20

cm” during the 20" century. Jd. (citing MacCracken Decl.),

Standing App. 196; see J.A. 234 (MacCracken Decl.) (range

of 10 to 20 centimeters). Accordingly, given this record, any

argument that the asserted Massachusetts sea-level rise—to

which Judge Tatel pointed as the best evidence that standing

exists—is traceable to EPA’s challenged decision or to new

U.S. motor vehicles’ greenhouse gas emissions, rather than to

18

other factors such as the land subsidence petitioners’ declara-

tion identifies, rests on mere conjecture.

Equally unsupported is any conclusion that projected fu-

ture sea-level rise will result from EPA’s decision not to un-

dertake a section 202(a)(1) rulemaking to control new U.S.

motor vehicles’ greenhouse gas emissions. To the contrary,,

the Kirshen declaration gives reason to conclude that sea-

level rise will occur “regardless of” global climate change—

and, thus, regardless of any effects of new U.S. motor vehi-

cles’ greenhouse gas emissions: “This rise in sea level due to

[land] subsidence would be expected in the next century in

the Boston area regardless of, and in addition to, the pro-

jected rise in sea level due to climate change.” Kirshen Decl.

46, Standing App. 197. The MacCracken declaration re-

flects the point more broadly: “To determine the projected

sea level rise at a particular location, the local rate of subsi-

dence or uplift must also be accounted for.” J.A. 234. In

short, based on petitioners’ evidence in the record, it is

speculative whether the alleged injury from the sea-level rise

they describe is traceable at all to EPA’s decision or to the

vehicle emissions they seck to have regulated. Standing does

not exist where, as here, “[s]peculative inferences are neces-

sary to connect [petitioners’] injury to the challenged ac-

tions.” Simon, 426 U.S. at 45.

2. Petitioners Failed To Show Redressability.

Even assuming arguendo that petitioners suffer injury-in-

fact caused by EPA’s denial of the rulemaking petition, peti-

tioners failed to demonstrate that a decision in their favor in

this case would redress that injury. Indeed, petitioners failed

to clear even the initial hurdle: showing that the judicial re-

lief they seek would yield a different regulatory outcome.

Beyond that, petitioners made no showing that, even if EPA

adopted regulations limiting greenhouse gas emissions from

19

new U.S. motor vehicles, the global climatic phenomena they

describe would be abated so as to remedy the harm they

claim. Finally, petitioners did not show that any such regula-

tion would occur soon enough to redress any current or any

imminent, impending injury—the only kinds of injury cogni-

zable under standing law.

a. Petitioners ask this Court to “remand” EPA’s denial

of the rulemaking petition “with directions to apply the cor-

rect legal standard to this matter; that is all.” Pet. Br. 3.

Thus, they say, “judgment in favor of petitioners will not

mandate regulation of air pollutants associated with climate

change, nor will it dictate a particular answer to the [endan-

germent]} question” they want EPA to decide. /d. In other

words, petitioners’ own characterization of the relief they

seek makes entirely speculative whether a decision in their

favor in this case will in any measure remedy the injuries as-

serted in their standing declarations.

With petitioners suggesting no way around this obstacle to

adjudication of their claims, amici U.S. Conference of May-

ors, et al., offer one—but it turns out to be a dead end. Amici

acknowledge the “uncertainty introduced by the limited na-

ture of the relief sought by Petitioners” because “Petitioners

are not asking for an order requiring EPA to regulate green-

house gases under Section 202.” Brief of the U.S. Confer-

ence of Mayors, ef al., as Amici Curiae in Support of Peti-

tioners at 28 n.49. They argue, however, that petitioners as-

sert a “procedural” right: the supposed right to have “EPA

follow the mandatory procedures” in section 202(a)(1) of the

Act. But that provision has no mandatory procedures, and

the procedural right that petitioners did have—their right un-

der the Administrative Procedure Act to obtain an Agency

decision on their rulemaking petition—-was asserted and vin-

dicated through earlier litigation in the district court. See su-

pra at 3. Amici’s citation of note 7 in Lujan—recognizing

20

the possibility of relaxation of “the normal standards for re-

dressability and immediacy” foz litigants asserting unsatisfied

procedural rights such as the right to agency compliance with

an environmental impact statement requirement, 504 US. at

572 & n.7—is, thus, unavailing; petitioners are entitled to no

relaxation of normal redressability standards.

b. Petitioners failed to demonstrate that a reduction in

the limited fraction of global greenhouse gas emissions rep-

resented by new U.S. motor vehicles would redress their as-

serted injury. Petitioners did not allege, and could not plau-

sibly argue, that regulation of new U.S. motor vehicles would

eliminate greenhouse gas emissions from those vehicles;°

eliminating those emissions presumably would require a re-

gime mandating that no new cars or trucks could burn gaso-

line, diesel fuel, or other fossil fuels, and petitioners purport

to disclaim any intent to bring about such radical changes.

See Pet. Br. 19-20 & n.10; see also Pet. App. A82 (in deny-

ing the rulemaking petition, EPA concluded that promulga-

tion of greenhouse gas emission standards for new motor ve-

hicles would not be “effective . . . at this time”).

The MacCracken declaration, on which Judge Tatel relied

in dissent, offers the following “[s]ummary of [o]pinion[]”:

“Achievable reductions in emissions of CQ2 and other green-

house gases from U.S. motor vehicles would significantly

reduce the build-up in atmospheric concentrations of these

gases and delay and moderate many of the adverse impacts of

global warming.” J.A. 225-26. The declarant, however, pro-

vided no information supporting or explaining the basis for

this conclusory statement. What kinds of reductions are

° Indeed, as noted above, petitioners stated that the entire U.S. transporta-

tion sector (not limited to new U.S. motor vehicles) is responsible for

about 7 percent of global fossil fuel emissions. J.A. 238. Petitioners

failed to demonstrate even that climination of a// emissions from the en-

tire U.S. transportation sector would redress their asserted injuries.

21

“{ajchievable”? In what timeframe are they achievable?

What amount of reductions would result? Perhaps most im-

portant: To what degree, if at all, would “[a]chievable reduc-

tions” “delay and moderate” the specific injuries petitioners

allege as a basis for their standing, such as sea-level rise in

Massachusetts? No answers are given.

In the absence of support for a conclusion that achievable

emission reductions from new motor vehicles in the United

States alone will redress their asserted harms, petitioners re-

sort to a theory that adoption of new motor vehicle emission

standards in this country under CAA section 202(a)(1) will

trigger similar regulation by independent foreign govern-

ments, yielding a supposed multinational reduction in green-

house gases that will some day mitigate some of the pro-

jected effects of global climate change:

If the U.S. takes steps to reduce motor vehicle cmis-

sions, other countries are very likely to take similar ac-

tions regarding their own motor vehicles using tech-

nology developed in response to the U.S. program,

thereby multiplying the total emission reduction bene-

fit of the U.S. action. This would discernibly and sig-

nificantly reduce and delay projected adverse conse-

quences of global warming, and greatly improve the

likelihood that there would be time for additional de-

velopment and use of even better technologies. With

such efforts, accompanied by progress in limiting

other emissions, it would be much more likely that the

extent of climate change could ultimately be limited to

levels that would avoid the most serious impacts of

global warming.

Id. at 239. Another declaration makes a similar assertion.

See Pet. App. A29 (Tatel, J., dissenting) (quoting Walsh

Decl. 4 10 (“establishing emissions standards for pollutants

22

that contribute to global warming would lead to investment

in developing improved technologies to reduce those emis-

sions from motor vehicles, and . . . successful technologies

would gradually be mandated by other countries”), J.A. 244);

_ see also Walsh Decl. 4] 12, J.A. 245.

Petitioners’ theory is fatally flawed. It rests on an ines-

capably speculative series of suppositions: that (1) a favor-

able decision in this case would trigger regulation in the

United States of new motor vehicles, which in turn would (2)

start a chain reaction of similar regulation by governments in

(unidentified) foreign countries, which eventually would (3)

moderate alterations in the planet’s climate, in turn (4) avoid-

ing some unspecified adver-e effects of global warming.

First, courts do not and cannot find standing where a claim

that “injury would be redressed by a favorable decision in

th[e] case [at hand] depends on the unfettered choices made

by independent actors not before the courts and whose exer-

cise of broad and legitimate discretion the courts cannot pre-

sume either to control or to predict.” ASARCO Inc. v.

Kadish, 490 U.S. 605, 615 (1989) (opinion of Kennedy, J.);

see also, e.g., DaimlerChrysler, 126 S. Ct. at 1863. What-

ever effects a favorable decision for petitioners in this litiga-

tion may have on EPA regulatory policies, on domestic

United States emissions, and on petitioners’ claimed inju-

ries—and any such effects are themselves enormously uncer-

tain, for reasons discussed above—that decision’s possible

effects on actions of forcign sovereigns is something United

States courts plainly “cannot presume either to control or to

predict.” ASARCO, 490 U.S. at 615. Petitioners’ redress-

ability theory rests on conjecture.

Second, as noted above, the MacCracken declaration pre-

dicts that the asserted reduction and delay in global warm-

ing’s effects would “greatly improve the likelihood that there

would be time for additional development and use of even

ere

23

better technologies.” J.A. 239. The declaration thus asserts

that some increase in the probability of development and use

of some “better”—but undefined——technologies would mate-

rialize at some point in the future if unspecified foreign gov-

ernments follow the United States’ lead in regulation. Noth-

ing concrete is offered, however, to support this hypothesis.

Third, Dr. MacCracken’s declaration qualifies its central

prediction—i.e., that the likelihood of avoiding “the most

serious impacts” would be increased by potential future for-

eign controls on motor vehicles, id—by making even that

vague prognostication conditional both on (as discussed

above) future invention and application of unidentified “bet-

ter” technologies that do not now exist and on “progress in

limiting other emissions,” id. This last factor is also extrane-

ous and independent: “limiting other emissions” presumably

means limiting greenhouse gas emissions from sources other

than motor vehicles——something that is outside the scope of

the regulation petitioners seek in this case and that petitioners

themselves argue cannot be thought to result from a decision

in their favor here. See Pet. Br. 27-29. Petitioners’ multiple

layers of speculation defeat any claim of redressability.

c. Accepted at face value (and putting to one side their

speculative nature), petitioners’ declarations establish that

any conceivable “redress” would occur only well in the fu-

ture, long after the time when any current or imminent injury’

could be remedied through the emission regulation petition-

ers seek. This is illustrated by the MacCracken declaration’s

reliance on its extended chain of hypothesized events involv-

ing future regulatory actions by foreign governments, “addi-

tional development and use of even better technologies,” and

” See Lujan, 504 U.S. at 564 n.2 (noting “the settled requirement that the

injury complained of be, if not actual, then at least imminent”) (emphasis

in original).

24

future “progress in limiting other cmissions”—a collection of

scenarios that in concert “could ultimately,” it is claimed,

avoid some effects of global warming. J.A. 239 (emphasis

added); see also id. at 244 (Walsh Decl.) (predicting that, if

petitioners obtain the requested domestic regulation, “suc-

cessful technologies would gradually be mandated by other

countries”) (emphasis added). This postulated “ultimate{]”

relief, materializing only upon the occurrence of possible fu-

ture events over an indefinite period in years to come, cannot

be squared with an argument that the injury thus “remedied”

was, at the time this litigation commenced,* “imminent” and

“impending.”

This fatal inconsistency in petitioners’ position is only

emphasized by their assurance that any new motor vehicle

emission regulations promulgated under section 202(a)(1) of

the Act need not—thanks to section 202(a)(2) and other pro-

visions of section 202—become effective for an indetermi-

nate, and possibly prolonged, period, irrespective of the “en-

dangerment.” Under section 202(a)(2) and 202(a)(4)(A), pe-

titioners observe,

a range of factors beyond “endangerment” are rele-

vant, including the time needed “to permit the devel-

opment and application of the requisite technology,”

taking compliance costs into account [citing CAA

§ 202(a)(2)}, and the existence of “an unreasonable

risk to public health, welfare, or safety” due to the

“operation or function” of an emission control “de-

vice, system, or element of design” [citing CAA™

§ 202(a4)A)].

* “(S}tanding is to be determined as of the commencement of suit.”

Lujan, 504 U.S. at 570-71 n.5 (plurality opinion).

25

Pet. Br. 36. Indeed, the statute imposes no deadline by which

any emission controls would have to take effect; section

202(a\(2) says that “[a]ny regulation prescribed under para-

graph (1) of this subsection . . . shall take effect after such

period as the Administrator finds necessary to permit the de-

velopment and application of the requisite technology, giving

appropriate consideration to the cost of compliance within

such period.” 42 U.S.C. 7521(a)(2) (emphasis added); see

also Pet. Br. 40 (“the remainder of section 202 [beyond sec-

tion 202(a)(1)} . . . direct{s] EPA’s attention to the availabil-

ity of technology” in setting emission controls’ effective

date). Given these statutory provisions, petitioners cannot

show that the emission controls they seek would take effect

quickly enough to remedy any imminent, impending injury.”

Il. In Declining To Undertake Rulemaking, EPA Ex-

ercised Its Administrative Discretion Reasonably

And Consistently With The Act.

The court of appeals properly found that EPA’s denial of

the petition for rulemaking was a reasonable exercise of the

Agency’s broad discretion. EPA’s decision was consistent

with the firmly established principle that Executive Branch

agencies have authority to decide whether and when to un-

dertake rulemaking. Moreover, EPA more than satisfied the

APA’s requirement that agencies explain “the grounds for

denial.” 5 U.S.C. 555(e). Further, contrary to petitioners’

argument, it was perfectly consistent with the CAA for EPA

* See, e.g., 59 Fed. Reg. 16,262, 16,263, 16,267 (1994) (emission control

requirements promulgated by EPA in 1994 under section 202(a)(1) for

certain motor vehicles would not “begin implementation” until model

year 2004—nearly a decade after promulgation -with implementation

phased in over three years; EPA determined “[t}his schedule will permit

the development and application of cost-effective, and economically

achievable technology, as required by section 202(a)(2).”).

26

to consider scientific uncertainty and other policy factors in

determining that no adequate basis existed, on the record be-

fore it, to make an “endangerment” determination and to

conduct rulemaking under section 202(a)(1) of the Act.

A. Under Fundamental Principles Of Administra-

tive Law, EPA’s Denial Of The Petition For

Rulemaking Was Well Within Its Discretion.

As recognized in the decisions of the D.C. Circuit—‘the

premier intermediate court for adjudicating issues of agency

power,” Cert. Pet. 4— it is a long-standing, bedrock tenet of

administrative law that courts must give a high degree of def-

erence to a federal agency’s decision, based on the facts and

in light of the particular circumstances before it, to decline a

request to institute rulemaking proceedings. National Cus-

toms Brokers & Forwarders Ass'n v. United States, 883 F.2d

93, 96 (D.C. Cir. 1989) (Ginsburg, R.B., J.) (The scope of

review of an agency’s denial of a rulemaking petition is “ex-

tremely limited” and “highly deferential.”). Thus, agency

decisions denying rulemaking petitions are subject to reversal

“only in the rarest and most compelling of circumstances.”

WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C. Cir. 1981); see

also Timpinaro v. SEC, 2 F.3d 453, 461 (D.C. Cir. 1993)

(same); National Customs Brokers, 883 F.2d at 97 (Denials

of rulemaking petitions should be overturned “only for com-

pelling cause, such as plain error of law or a fundamental

change in the factual premises previously considered by the

agency.”); American Horse Protection Ass'n v. Lyng, 812

F.2d 1, 4-6 (D.C. Cir. 1987) (denials of rulemaking petitions

entitled to “high end” of range of deference). Indeed, “an

agency's refusal to initiate a rulemaking is evaluated with a

deference so broad as to make the process akin to non-

reviewability.” Cellnet Communication, Inc. v. FCC, 965

F.2d 1106, 1111 (D.C. Cir. 1992). The D.C. Circuit’s deci-

27

sion here comported fully with these settled administrative

law precedents.

NRDC v. SEC, 606 F.2d 1031 (D.C. Cir. 1979), is that

court’s “most comprehensive statement . . . as to the avail-

ability and scope of review of an agency’s decision to deny a

petition for rulemaking.” WWHT, 656 F.2d at 816. There,

the D.C. Circuit held that judicial review in such cases is, and

must be, extremely limited for numerous reasons:

An agency’s discretionary decision not to regulate a

given activity is inevitably based, in large measure, on

factors not inherently susceptible to judicial resolu-

tion—e.g., internal management considerations as to

budget and personnel; evaluations of its own compe-

tence; weighing of competing policies within a broad

statutory framework. Further, even if an agency con-

siders a particular problem worthy of regulation, it

may determine for reasons lying within its special] ex-

pertise that the time for action has not yet arrived. The

area may be one of such rapid technological develop-

ment that regulations would be outdated by the time

they could become effective, or the scientific state of

the art may be such that sufficient data are not yet

available on which to premise adequate regulations.

The circumstances in the regulated industry may be

evolving in a way that could vitiate the need for regu-

lation, or the agency may still be developing the ex-

pertise necessary for effective regulation.

NRDC v. SEC, 606 F.2d at 1046 (citations omitted) (empha-

sis in original). Because, in short, “[t}he agency’s determina-

tion is essentially a legislative one, . . . the reviewing court

should do no more than assure itself that the agency acted in

a manner calculated to negate the dangers of arbitrariness and

28

irrationality.” WWHT, 656 F.2d at 817 (internal quotation

marks and citation omitted).

Given the high degree of deference afforded agencies

when they deny rulemaking petitions, “there are very few

cases in which courts have forced [an agency] to institute

rulemaking proceedings on a particular issue after it has de-

clined to do so.” /d. at 818. On rare occasions, courts do

remand rulemaking petition denials for an adequate explana-

tion where the agency failed to meet the APA’s minimal re-

quirement for a brief statement of the grounds for denial. For

example, in American Horse Protection, the Secretary of Ag-

riculture denied a petition seeking rulemaking to reconsider

regulations on the practice of “soring” horses in light of new

evidence. 812 F.2d at 1-3. The Secretary’s articulated

statement of basis for the denial consisted of two conclusory

sentences and limited statistical information, id. at 5—

“insufficient,” the D.C. Circuit held, “to assure a reviewing

court that the agency’s refusal to act was the product of rea-

soned decisionmaking,” id. at 6.'°

In contrast, EPA’s denial of the rulemaking pctition here

was the product of reasoned decisionmaking and supported

by grounds articulated by the Agency. The record before the

D.C. Circuit enabled that court to “assure itself that the

[A]gency considered the relevant factors, that it explained the

facts and policy concerns relied on, and that the facts have

some basis in the record.” /d. at 5 (citations and internal quo-

tation marks omitted). EPA provided a full explanation of its

reasons for denying the petition in 12 Federal Register pages.

"© In National Customs Brokers, then-Judge Ginsburg, writing for the

_ court, further clarified that the D.C. Circuit’s remand in American Horse

Protection occurred in part because the Secretary’s decision contravened

an unambiguous statutory command. 883 F.2d at 97. Unlike the rule-

making petition denial in American Horse Protection, EPA’s denial here

contradicted no “crystalline congressional objective.” Jd.

29

Pet. App. A59-A93; cf. 5 U.S.C. 555(e) (agency must give “a

brief statement of the grounds for denial”) (quoted in Ameri-

can Horse Protection, 812 F.2d at 4). One of the principal

grounds EPA gave for its denial was the continued existence

of significant scientific uncertainty reflected in the record

before it. Pet. App. A82-A85; see also NRDC v. SEC, 606

F.2d at 1046 (“[T]}he scientific state of the art may be such

that sufficient data are not yet available on which to premise

adequate regulations.) (citations omitted). EPA also dis-

cussed, as noted above, other policy concerns that would be

raised by granting the petition; Pet. App. A82-A87, and de-

scribed steps the President was taking to address global cli-

mate change issues, id. at A87-A92.

Nothing in the record before the court below presented

those “rarest and most compelling of circumstances” neces-

sary to overturn an agency denial of a rulemaking petition.

WWHT, 656 F.2d at 818. Although petitioners obviously

disagree with the merits of EPA’s decision, such disagree-

ment is immaterial where, as here, petitioners do not and

cannot show that EPA’s decision was unreasoned, or that

EPA failed to “explain{] the ‘facts and policy concerns’ [it]

relied on,” or that the facts lack “some basis in the record.”

American Horse Protection, 812 F.2d at 5 (citation omitted).

Accordingly, consistent with familiar and settled principles

of administrative law, the D.C. Circuit properly declined to

set aside EPA’s decision to deny the request for rulemak-

ing.

'' In their reply brief supporting their certiorari petition, petitioners char-

acterized EPA’s position on this point as reflecting a “claim{] that its de-

cision below may be unreviewable because it involves the denial of a

rulemaking petition”; petitioners called this view “extraordinary.” Pet.

Reply Br. (on certiorari) at Sn.\. In fact, EPA accurately characterized

the case law; and, without arguing that denials of rulemaking petitions are

wholly immune from judicial review, EPA explained that courts evaluate

30

B. The Court Of Appeals’ Decision Is Fully Con-

sistent With The Clean Air Act.

The D.C. Circuit’s decision not to disturb EPA’s denial of

the rulemaking petition also comports with the CAA. As that

court recognized, section 202(a)(1) of the Act provides EPA

with discretion in deciding whether and when to exercise its

expert “judgment” to determine if new motor vehicles’ emis-

sions “may reasonably be anticipated to endanger public

health or welfare.” 42 U.S.C. 7521(a)(1); Pet. App. Al3.

Even if EPA had regulatory authority over greenhouse gas

emissions as petitioners claam—and EPA does not have that

authority, see Argument III infra—the Agency had no obli-

gation to exercise its judgment by making un “endanger-

ment” determination in response to ICTA’s petition for rule-

making.

The D.C. Circuit properly found no grounds for granting

the petitions for review of EPA’s denial because the court

owed deference to the Agency’s expert conclusion that a

sound basis for making an endangerment determination did

not exist in light of substantial scientific uncertainty in the

record before it. Pet. App. Al1-A13; see Ethyl, 541 F.2d at

20 n.37 (Section 202(a)(1)’s “judgment” language is an “ex-

press provision for administrative discretion.”). As the court

noted, an endangerment determination under the Act “‘is

necessarily a question of policy that is to be based on an as-

sessment of risks and that should not be bound by either the

procedural or the substantive rigor proper for questions of

fact.’” Pet. App. Al5 (quoting Ethy/, 541 F.2d at 24).

such denials with the greatest deference, as discussed above. Br. for the

Fed. Resp. in Opp. at 17-18. To the extent petitioners intended their

characterization of EPA’s position as a call to overturn this bedrock prin-

ciple of administrative law—one rooted in constitutional separation of

powers—it is petitioners’ position that is “extraordinary” and should be

rejected.

31

While readily acknowledging that EPA in deciding on the

petition “could appropriately consider . . . scientific uncer-

tainty,” Pet. Br. 39; see also id. at 41,’ petitioners observe

that the mere existence of scientific uncertainty need not

paralyze regulators under all circumstances; that is, whatever

authority EPA might have to regulate is not necessarily ne-

gated by the presence of any degree of uncertainty in the sci-

ence. See id. at 41-42 & n.32 (citing Ethyl, 541 F.2d at 25).

That principle, however, is hardly a rule that EPA must exer-

cise any such authority even in the presence of substantial

scientific uncertainty that the government is working to re-

solve. The D.C. Circuit’s decision in Ethyl supports EPA’s

denial of the rulemaking petition at issue here. Pet. App.

Al3-Al4. Ethy/ did not involve denial of a petition for

rulemaking in the face of scientific uncertainty—the kind of

agency decision that is subject to an extraordinarily high de-

gree of judicial deference. Far from it: Ethyl involved an

industry challenge to an EPA decision fo regulate where

there was “less than certainty” about endangerment. E£thy/,

541 F.2d at 25. In rejecting the industry challenge, the D.C.

Circuit held that an agency is not always obligated to wait for

full resolution of scientific questions before commencing

regulation. See id.; cf. J.A. 15 (ICTA petition for rulemak-

ing: “Under the CAA, the Administrator [of EPA] is permit-

ted to make a precautionary decision to regulate pollutants in

order to protect public health and welfare.” (emphasis

added)). Ethy/ plainly does not stand for the converse propo-

sition petitioners urge here: that EPA must grant a petition to

regulate despite substantial scientific uncertainty.

Petitioners therefore disagree with one of their amici states, which

makes the plainly incorrect claim that consideration of scientific uncer-

tainty is prohibited. Brief of Amicus Curiae State of Delaware in Support

of Petitioners at 23-24.

32

Petitioners claim that EPA selectively cited statements of

scientific uncertainty in the NRC Report. Pet. Br. 42-43.

But, particularly given that petitioners do not dispute that

significant and relevant scientific uncertainty exists,'? peti-

tioners’ unproven accusation of selectivity, even if it were

correct, is nothing but a plea to substitute their assessment

for the expert agency’s evaluation of available scientific evi-

dence and of the uncertain state of that evidence. That peti-

tioners would—or, indeed, that a reviewing court might—

make a decision different from EPA’s based on the scientific

evidence that was before the Agency does not make EPA’s

decision arbitrary.

Equally misguided is petitioners’ critique of EPA’s Fed-

eral Register discussion as “terse.” Jd. at 43. Even if EPA’s

description of its reasons could fairly be characterized that

- way (and it cannot), petitioners do not and cannot cite any

authority to support their apparent view that the Agency has a

legal obligation, whenever presented with a petition for

rulemaking on a technical and scientific matter, to conduct a

complete analysis of the body of science on that matter and

to prepare and publish in the Federal Register a comprehen-

sive report on the results of its evaluation. No such principle

could be more foreign to our administrative law, as defined

'? See, e.g., Joint Decl. of William D. Solecki, ef al,. 4 8.e. (“[s}ubstantial

uncertainties about climate change remain”), Standing App., Vol. Il, at

264; id. 4 9.f. (“There is still considerable uncertainty about the rate and

magnitude of projected climate changes.”), Standing App. 266. Petition-

ers’ amici climate scicntists also recognize scientific uncertainty in the

record before EPA; they acknowledge that the NRC Report that EPA

reviewed “encompasses both the more certain and the less certain ele-

ments of the science, and uncertainties are described explicitly, as is the

norm in scientific reports.” Brief of Amici Curiae Climate Scientists

David Battisti, ef a/., at 18 (emphasis added); see also id. at 29 (discuss-

ing scientific uncertainty about whether “current projections” accurately

portray “the extent of the damage”) (emphasis in original).

33

by Congress and applied by the courts. Such a principle

would wreak havoc on Exccutive Branch agencies’ ability to

order their administrative resources to accomplish their statu-

torily defined responsibilities. As discussed above, the APA

requires only that a denial of a rulemaking petition “be ac-

companied by a brief’—one might almost say “terse”—

“statement of the grounds for denial,” 5 U.S.C. 555(e) (em-

phasis added), and the law is clear that an agency need sup-

ply only enough information in denying a rulemaking peti-

tion to show that its decision declining to undertake the re-

quested rulemaking “was the product of reasoned decision-

making.” American Horse Protection, 812 F.2d at 6. EPA

easily met that test here.

An objective review of the NRC Report supports the con-

clusion that EPA’s decision on the rulemaking petition was

rational, cven if it would have been possible, based on that

report, for the Agency to have reached petitioners’ desired

result. See Ethyl, 541 F.2d at 25 (scientific certainty not a

prerequisite to CAA regulation). Despite Judge Tatel’s

“doubt [that] EPA could credibly conclude that it needs more

research to determine whether [greenhouse gas]-caused

global warming ‘may reasonably be anticipated to endanger’

welfare,” Pet. App. AS0-A51 (Tatel, J., dissenting), the ex-

tensive passage from the NRC Report that Judge Tatel him-

self quoted at length reflects on its face considerable scien-

tific uncertainty regarding global climate change and its pos-

sible effects on public welfare and health. Some examples:

(1) “‘Changes in storm frequency and intensity are one of the

more uncertain elements of future climate change predic-

tion.”’—an area of scientific investigation that petitioners’

amici agree “remains controversial” and as to which there is

“a need for additional data”;'* (2) “‘{T]}he response of insects

'* Brief of Amici Curiae Ocean and Coastal Conservation Interests in

Support of Petitioners at 17 & n.5 (the “assertion” that “hurricane inten-

34

and plant diseases to warming is poorly understood. On the

regional scale and in the longer term, there is much more un-

certainty.’”; (3) “Health outcomes in response to climate

change are the subject of intense debate. ... Climate change

is just one of the factors that influence the frequency and

transmission of infectious disease, and hence the assessments

view such changes as highly uncertain.’”; and (4) “*The un-

derstanding of the relationships between weather/climate and

human health is in its infancy and therefore the health conse-

quences of climate change are poorly understood. The costs,

benefits, and availability of resources for adaptation are also

uncertain.’” Id. at AS2, AS3 (Tatel, J., dissenting) (quoting

NRC Report) (emphasis added).

The passage irom the NRC Report that Judge Tatel quoted

also contains several other statements illustrating substantial

uncertainty about whether any basis existed for EPA to make

the requested endangerment judgment. For example: (1) “‘A

key conclusion from the National Assessment [of Climate

Change Impacts] is that U.S. society is likely to be able to

adapt to most of the climate change impacts on human sys-

tems, but these adaptations may come with substantial

cost.’”; (2) “‘In the near term, agriculture and forestry are

likely to benefit from CO fertilization effects and the in-

creased water efficiency of many plants at higher atmos-

pheric CO) concentrations.””; (3) “‘[T]he combination of the

geographic and climatic breadth of the United States, possi-

bly augmented by advances in genetics, increases the na-

tion’s robustness to climate change.’”; (4) “‘[M]Juch of the

United States appears to be protected against many different

adverse health outcomes related to climate change by a

sity” is linked to “warming seas” “remains controversial”; “there is a

need for additional data,” in part because of “questions about the possible

underestimation of the intensity of historic tropical cyclones, thus making

more recent storms appear stronger by comparison”).

35

strong public health system, relatively high levels of public

awareness, and a high standard of living.’”; and (5) “‘At a

national level, the direct economic impacts [of global climate

change) are likely to be modest [while] on a regional basis the

level and extent of both beneficial and harmful impacts will

grow.” Jd. at ASI, A52, A5S3, A54 (Tatel, J., dissenting)

(quoting NRC Report) (emphasis added).

Given the information in the NRC Report, EPA found, in

responding to the petition, that “[t]he science of climate

change is extraordinarily complex and still evolving.” /d. at —

A83. EPA therefore reasonably concluded that the remaining

uncertainties in the evolving science, and the need to con-

tinue working to reduce those uncertainties, counseled

against regulatory action at that time:

[T]here continue to be important uncertainties in our

understanding of the factors that may affect future

climate change and how it should be addressed. As

the NRC explained, predicting future climate change

necessarily involves a complex web of economic and

physical factors including: our ability to predict future

global anthropogenic emissions of [greenhouse gases]

and aerosols; the fate of these emissions once they en-

ter the atmosphere (e.g., what percentage are absorbed

by vegetation or are taken up by the oceans); the im-

pact of those emissions that remain in the atmosphere

on the radiative properties of the atmosphere; changes

in critically important climate feedbacks (e.g., changes

in cloud cover and ocean circulation); changes in tem-

perature characteristics (e.g., average temperatures,

shifts in daytime and evening temperatures); changes

in other climatic parameters (e.g., shifts in precipita-

tion, storms); and ultimately the impact of such

changes on human health and welfare (e.g., increases

or decreases in agricultural productivity, human health

36

impacts). The NRC noted, in particular, that “[t}he

understanding of the relationships between

weather/climate and human health is in its infancy and

therefore the health consequences of climate change

are poorly understood” (p. 20). Substantial scientific

uncertainties limit our ability to assess each of these

factors and to separate out those changes resulting

from natural variability from those that are directly the

result of increases in anthropogenic [greenhouse

gases].

Id. at A83-A84.

In short, given the evidence of scientific uncertainty de-

scribed in the information before the Agency, EPA had, and ©

articulated, a rational basis for denying the petition for rule-

making. Nothing more was required. |

While focusing on uncertainty in the scientific evidence,

EPA also noted additional policy reasons that reinforced its

conclusion that it was appropriate to decline to undertake

rulemaking. /d. at A82-A92. Petitioners argue that EPA

may not consider policy reasons under section 202(a)(1) of

the CAA at all and that consideration of these reasons here

“taints EPA’s entire decision.” Pet. Br. 41. Petitioners are

incorrect. Applying settled principles under the CAA and the

APA, the D.C. Circuit properly rejected petitioners’ objection

because “Congress does not require the Administrator to ex-

ercise his discretion solely on the basis of his assessment of

scientific evidence.” Pet. App. A13 (citing Ethyl, 541 F.2d at

20); see id. at AIS (“as we have held, a reviewing court ‘will

uphold agency conclusions based on policy judgments’

‘when an agency must resolve issues “on the frontiers of sci-

entific knowledge”’”) (quoting Environmental Def. Fund v.

EPA, 598 F.2d 62, 82 (D.C. Cir. 1978)); Ethyl, 541 F.2d at

26 (“the [CAA] accords the regulator flexibility to assess

risks and make essentially legislative policy judgments”); ef.

37

WWHT, 656 F.2d at 817 (“The agency’s determination is es-

sentially a legislative one, and the reviewing court should do

no more than assure itself that the agency acted in a manner

calculated to negate the dangers of arbitrariness and irration-

ality.”) (citation and internal quotation marks omitted);

NRDC v. SEC, 606 F.2d at 1046 (“An agency’s discretionary

decision not to regulate a given activity is inevitably based,

in large measure, on factors not inherently susceptible to ju-

dicial resolution . . . .”) (emphasis in original).

Moreover, petitioners ignore a critically important aspect

of agency discretion central to this case: Under the CAA and

basic administrative law principles, EPA has discretion re-

garding the timing of initiation of any rulemaking under sec-

tion 202(a)(1). See, e.g., NRDC v. SEC, 606 F.2d at 1046

(“(E]ven if an agency considers a particular problem worthy

of regulation, it may determine for reasons lying within its

special expertise that the time for action has not yet ar-

rived.”). Unlike numerous provisions in the Act, including

other provisions within section 202, see, eg, CAA

§ 202(b)(2), 42 U.S.C. 7521(b)(2) (directing EPA to act

“within 180 days after November 15, 1990”), section

202(a)(1) imposes no deadline for EPA action. By using

such limiting language, Congress cabins—where it intends to

cabin—Agency discretion regarding the timing of regulation.

No such limiting language appears in section 202(a)(1).

Congress likewise knows how to constrain, through impo-

sition of specific deadlines, EPA’s discretion under the Act to

decide the timing of decisions whether it is appropriate to

regulate consistent with substantive statutory criteria. For

example, section 109(d) of the Act requires EPA, by Decem-

ber 31, 1980, and every five years thereafter, to “promulgate

such new [ambient air quality] standards as may be appropri-

ate” in accordance with other, referenced provisions of the

Act. 42 U.S.C. 7409(d); see generally Environmental Def.

38

Fund v. Thomas, 870 F.2d 892 (2d Cir. 1989). Congress

knows, too, how to require EPA to begin (and to conclude)

rulemaking by specific dates. For example, section

202(i(3 (A), 42 U.S.C. 7521(i3)(A), provides that, based

on a study and report mandated by section 202(i)(1) and (2),

42 U.S.C. 7521(i)(1), (2), EPA “shall determine, by rule,

within 3 calendar years after the report is submitted to Con-

gress, but not later than December 31, 1999,” whether (i) a

need exists for “further reductions in emissions” of specified

pollutants, (11) “the technology for meeting more stringent

emission standards will be available,” and (iii) “obtaining

further reductions in emissions from such vehicles will be

needed and cost effective.” The report must be submitted to

Congress “no later than June |, 1997,” and the “rulemaking .

. . Shall commence within 3 months after submission of the

report to Congress.” 42 U.S.C. 7521(i)(2)(B), (3A) (em-

phasis added). In stark contrast, nothing in section 202(a)\1)

constrains EPA’s discretion to determine when it is appropri-

ate to commence any rulemaking that may be warranted.’

Here, EPA determined that it was important to continue a

policy of “reducing scientific uncertainties” through addi-

tional research, Pet. App. A82, to allow the government to

“answer questions about the causes, extent, timing and ef-

fects of global climate change that are critical to the formula-

tion of an effective, efficient long-term policy,” id. at A67.

Particularly given the uncertain state of the scientific evi-

dence regarding global climate change and its potential ef-

'S Cf. Sierra Club v. Thomas, 828 F.2d 783, 798 (D.C. Cir. 1987) (EPA’s

decisions whether to regulate under the Act “often involve[{] complex

scientific, technological, and policy questions”; thus, absent clear-cut

statutory constraints on the timing of those decisions, “EPA must be af-

forded the amount of time necessary to analyze such questions so that it

can reach considered results in a final rulemaking that will not be arbi-

trary and capricious or an abuse of discretion.”).

39

fects that EPA had before it when it considered the rulemak-

ing petition, the Agency was justified in deciding not to insti-

tute rulemaking. EPA did not abuse its broad discretion as to

timing by deciding in 2003 that—regardless of whether fur-

ther resolution of scientific questions might make rulemaking

justified in the future—rulemaking would not be appropriate

based on the information available to the Agency, and given

the circumstances existing, at that time. Consistent with the

CAA and with established principles of administrative law,

the D.C. Circuit properly declined to disturb EPA’s decision.

Ill, EPA Lacks Authority Under CAA Section

202(a)(1) To Regulate Greenhouse Gas Emissions

To Address Global Climate Change.

“(E]mploying traditional tools of statutory construction,”

this Court should affirm EPA’s determination that the CAA

does not authorize it to regulate greenhouse gas emissions

from new motor vehicles under CAA section 202(a)({1) to

address global climate change. Chevron v. NRDC, 467 U.S.

837, 842-43 & n.9 (1984); see also Brown & Williamson, 529

U.S. at 132-33. The traditional tools of statutory construe-

tion include a statute’s text, its overall structure, and its legis-

lative history. See, e.g., Whitman v. American Trucking

Ass ‘ns, 531 U.S. 457, 466 (2001) (“Words that can have

more than one meaning are given content . . . by their sur-

roundings.”) (citing Brown & Williamson, 529 U.S. at 132-

33; Jones v. United States, 527 U.S. 373, 389 (1999)); King

v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (statutes

must be interpreted and understood as a whole “since the

meaning of statutory language, plain or not, depends on con-

text”); Train v. Colorado PIRG, 426 U.S. 1, 10 (1976)

(“When aid to construction of the meaning of words, as used

in the statute, is available, there certainly can be no rule of

law which forbids its use, however clear the words may ap-

40

pear on superficial examination.”) (quotations omitted).

Reading the CAA as a whole, and reading relevant individual

provisions in the context of the entire statute and its legisla-

tive history, leads to the conclusion EPA reached on this is-

sue. At a minimum, that conclusion does not conflict with

the CAA and reflects a permissible interpretation of the Act.

First, where the Act specifically mentions greenhouse

gases or global climate change, it expressly clarifies the rele-

vant provision’s nonregulatory nature. In section 103(g), 42

U.S.C. 7403(g), which refers to “carbon dioxide,” Congress

stated: “Nothing in this subsection shall be construed to au-

thorize the imposition on any person of air pollution control

requirements.” Indeed, the word “nonregulatory” appears six

times in section 103(g). Jd. Similarly, section 602(e) of the

Act, 42 U.S.C. 7671a(e), directs EPA to publish “the global

warming potential” of each substance listed under that sub-

section. The Act specifically states, however, that this direc-

tive “shall not be construed to be the basis of any additional

regulation under this [Act].”"° See Pet. App. A70-A71 (dis-

cussing sections 103(g) and 602(e) and pertinent legislative

history).

Petitioners unsuccessfully try to explain away these ex-

pressions of congressional intent barring any construction of

the Act’s references to greenhouse gases and global climate

change as authorizing regulation. Petitioners say, for exam-

ple, that “[n]Jothing in these provisions expressly or impliedly

removes the authority granted by section 202(a)(1).” Pet. Br.

22. That argument is circular and illogical: it assumes peti-

° Section 821 of Public Law No. 101-549, to which petitioners refer, Pet.

Br. 17 & n.9, directs EPA to issue rules for electric utilities to monitor

and report their power plants’ CO) emissions annually so that EPA can

make the aggregate data “available to the public.” 42 U.S.C. 7651k Note.

That section, which is not part of the CAA, does not authorize regulation

of emissions for global climate change or any other purpose.

4]

tioners’ premise that section 202(a)(1) provides the authority

they claim it does; and, if accepted, it would perversely pre-

clude the Court from learning anything of congressional in-

tent from CAA provisions that—unlike section 202(a)(1)}—

actually refer to greenhouse gases. Petitioners fail to explain

why, if the Act provides the broad grant of regulatory author-

ity over greenhouse gases they claim it does, Congress would

be concerned to specify that the Act’s language referring to

those gases must nof be construed to provide any such au-

thority. At the very least, it plainly was not unreasonable for

EPA to read this statutory language as signifying congres-

sional intent to withhold regulatory authority over green-

house gas emissions to address global climate change.

Second, as EPA explained in denying the rulemaking peti-

tion, “the key statutory mechanism for controlling pervasive

‘air pollutants’—establishing and implementing national am-

bient air quality standards under sections 108, 109, and

110—is unworkable for addressing an issue whose causes

and effects are global in nature.” Pet. App. A64; see id. at

A72-A74. This point is addressed in detail in the Brief for

the Respondent States of Michigan, North Dakota, Utah,

South Dakota, Alaska, Kansas, Nebraska, Texas, and Ohio.

Third, as EPA also explained, id. at A71-A72, when Con-

gress addressed a global atmospheric phenomenon with in-

ternational ramifications in the CAA—depletion of the

stratospheric ozone layer—it did so specifically in provisions

tailored expressly for that problem. In 1990, Congress en-

acted a separate Title VI of the CAA, 42 U.S.C. 7671-7671q,

to address the issue, which “incorporated [the] terms” of the

Montreal Protocol on Substances that Deplete the Ozone

Layer. NRDC v. EPA, No. 04-1438, 2006 WL 2472144, at

*1 (D.C. Cir. Aug. 29, 2006). Before 1990, Congress also

addressed stratospheric ozone depletion under a discrete part

of the statute (part B of Title I), 42 U.S.C. 7450-7459 (1988),

42

which, like the later-enacted Title VI, recognized the global

nature of the problem and provided for international coordi-

nation. See 42 U.S.C. 7456 (1988) (directing the President to

“enter into cooperative research,” “negotiate multilateral

treaties, conventions, resolutions, or other agreements,” and

“formulate, present, or support proposals at the United Na-

tions and other appropriate international forums”). Given

how Congress treated the international issue of stratospheric

ozone protection, it is difficult to believe it would have cho-

sen to authorize EPA to address a similar global issue

through the general definitional provisions, discussed infra,

on which petitioners rely.

Fourth, summarizing a series of ponregulatory statutes

that Congress enacted beginning in 1978 and that “specifi-

cally address[] global climate change,” EPA observed that

Congress, at the time of the 1990 Amendments to the CAA,

“was awaiting further information before deciding itself

whether regulation to address global climate change is war-.

ranted and, if so, what form it should take.” Pet. App. A74-

- A75 (emphasis in original). Post-1990 congressional actions,

EPA further observed, reinforced the conclusion that the

CAA could not be interpreted to delegate to EPA authority to

impose such regulation “in the absence of any direct or even

indirect indication of congressional intent to provide such

authority.” /d. at A75-A76.

As EPA noted, the legislative history of the 1990

Amendments to the CAA provides further support for EPA’s

determination. In considering those amendments, Congress

debated a committee-approved provision imposing limits on

carbon dioxide emissions from motor vehicles. Ultimately,

Congress decided not to include this provision in the Act.

But Congress did not reject that provision because members

believed the Act a/ready authorized greenhouse gas emission

limits for motor vehicles. To the contrary, senators’ remarks

43

reveal a shared understanding that rejection of that and simi-

lar proposed measures meant there would be no basis in law

for such regulation—that, to be authorized, any such regula-

tion required new legislation.

Thus, for example, Senator Lieberman rued the “elimina-

tion” of the proposed CO, emission limits for motor vehicles

without approval of any substitute measure. 136 Cong. Rec.

3730-31 (1990), reprinted in 4 Senate Comm. on Env’t &

Pub. Works, !U3d Cong., Legislative History of the Clean

Air Act Amendments of 1990, at 5407-10 (1993) (“Legis. |

Hist.”). Senator Baucus, the legislation’s floor manager, said

that “[a]ny amendment” directing EPA to promulgate CO,

standards for “tailpipe emissions . . . would be a deal-

breaker,” id. at 3894, reprinted in Legis. Hist. at 5492, but

that a transportation planning amendment offered by Senator

Gore would be “a good start” to address “global warming,”

emphasizing that “[w]e must start somewhere, and this is a

good beginning.” /bid. There would have been no need for

Congress to “start somewhere” if EPA already had received

from it the delegation of regulatory authority petitioners

claim it did.

Along these lines, Senator Gore, in discussing his trans-

portation planning amendment—an amendment the House-

Senate conference committee ultimately rejected—said it was

“unimaginable that this body would take up a Clean Air Act

and revisit this question [of global climate change] as exten-

sively as we are doing without grappling at least in some way

with the problem of CO, emissions.” /d. at 3893, reprinted

in Legis. Hist. at 5488-89. If EPA already had authority in

the CAA, congressional advocates of regulation would not

have emphasized Congress’s need to “grappl[e] at least in

some way” with regulatory control of greenhouse gas emis-

sions. And these congressional advocates expressed no view

that EPA had, cither under the pre-existing Act, as petitioners

44

claim, or under the Act as it was being amended, any author-

ity to adopt greenhouse gas emission limits for new motor

vehicles or any other sources.

Without addressing these specific statements regarding

congressional intent, petitioners cite United States v. Craft,

535 U.S. 274 (2002), for the general proposition that “‘[c]on-

gressional inaction lacks persuasive significance because

several equally tenable inferences may be drawn from such

inaction, including the inference that the existing legislation

already incorporated the offered change.’” Pet. Br. 21 (quot-

ing Craft, 535 U.S. at 287). Craft, however, is readily distin-

guished. It involved a rejected legislative proposal that

would have permitted tax liens on certain property. In never-

theless upholding such a lien, the Court noted that failure of a

measure could support several reasonable inferences, includ-

ing that existing statutory law already incorporated the of-

fered change. Craft, 535 U.S. at 287. The Court’s opinion

examined legislative history showing that Congress rejected

the failed tax measure as unnecessary because the measure

was viewed as “nothing more than a ‘clarification’ of exist-

ing law” and as “‘superfluous’” by the respective chambers. ~

/d. (citations omitted). In contrast, the legislative history dis-

cussed above shows that congressional advocates of new mo-

tor vehicle greenhouse gas emission limits recognized that

the failure to enact the proposed /egis/ative amendments to

effect such control would mean the Act would provide no

authority for “grappling . . . in some way with the problem of

CO, emissions”—a conclusion wholly at odds with the avail-

ability of pre-existing regulatory authority that petitioners

claim the Act provided.'’ 136 Cong. Rec. 3893 (1990), re-

printed in Legis. Hist. at 5488-89.

" Cf. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 46)

U.S. 375, 384 (1983) (“a federal decision to forgo regulation in a given

45

Petitioners claim, however, that EPA’s interpretation of

the Act is barred by two provisions that do not refer specifi-

cally to greenhouse gases: the general definition of “air pol-

lutant,” 42 U.S.C. 7602(g), and a provision listing “effects on

welfare,” id. 7602(h). Under petitioners’ interpretation of the

statute, Congress, by enacting these two provisions as part of

the CAA’s “Definitions” section (id. 7602), established au-

thority for a sweeping global climate change regulatory pro-

gram. EPA reasonably concluded instead that the broader

statutory context and legislative history refute petitioners’

view. See Whitman, 531 U.S. at 468 (Congress does not

“hide elephants in mouseholes”).

Section 302(g) states that “‘air pollutant’ means any air

pollution agent or combination of such agents, including any

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

matter which is emitted into or otherwise enters the ambient

air.” 42 U.S.C. 7602(g). If accepted, petitioners’ argument

in effect would revise section 302(g) by writing the qualify-

ing words “air pollutant agent” out of the CAA, making any

substance that enters the ambient air an “air pollutant” poten-

tially subject to CAA regulation. Pet. Br. 12-14; see Pet.

App. A78-A79 & n.3."*

area may imply an authoritative federal determination that the area is best

left unregulated”) (emphasis in original).

'® Petitioners cite methane emission standards for landfills as an example

of supposed Agency inconsistency with regard to “air pollutant.” Pet. Br-

34. The reasons EPA addressed methane—e.y., its explosive characteris-

tics—have nothing to do with global warming, and EPA identified any

global warming benefits as “ancillary.” 61 Fed. Reg. 9905, 9917 (1996).

Petitioners quote an obvious misstatement in which EPA says those land-

fill standards regulate CO, in addition to methane, Pet. Br. 34 n.5 (quot-

ing 63 Fed. Reg. 6426, 6454 (1998)). The regulated substances unambi-

guously do not include COQ,, as EPA made clear in promulgating the

standards. See 61 Fed. Reg. at 9905 (identifying non-methane organic

compounds (which did not include CO,) and methane as the “emissions

of concern”). Petitioners also cite selected notices under EPA's Signifi-

46

In the face of the rule that statutes must, if possible, be

construed to give every word effect, United States v. Nordic

Village, Inc., 503 U.S. 30, 36 (1992), petitioners strain to

supply a meaning for Congress’s limiting phrase, “air pollu-

tion agent,” that fits their theory of the Act. Petitioners’ idea

is that this phrase is not limiting at all but expansive, i.e., that

Congress meant it to encompass things in addition to “sub-

stance[s] or matter”—things, they hypothesize, that “have no

mass,” such as “heat” and “ionizing radiation.” Pet. Br. 14.

Yet they offer no authority for this novel interpretation.

In any event, petitioners’ argument is beside the point.

That argument in fact rests on their wholly improbable prem-

ise that section 302(g) must be read to define as an “air pollu-

tion agent” any substance or matter that enters the ambient

air. /d. at 13-14. In other words, petitioners’ position is that

EPA had no discretion to determine that some substances that

enter the ambient air simply do not fit the common under-

standing of “air pollution agent,” see Pet. App. A79 n.3, as

meaning something that—unlike CO,—causes the air that

people breathe to become dirty or impure. Under petitioners’

cant New Alternatives Policy, which addresses stratospheric ozone deple-

tion. Pet. Br*33-—Phat EPA, under this policy, considers global warming

potential as “a factor in assessing the overall risk” of a possible substitute

chemical, see 59 Fed. Reg. 13,044, 13,049 (1994) (emphases added),

does not mean it regulates solely or primarily to address global warming;

and a single instance in which EPA may have deviated from its policy,

see Pet. Br. 33 (citing 64 Fed. Reg. 10,374, 10,375 (1999)), cannot ex-

pand Agency authority. Finally, the existence of requirements for moni-

toring CO, emissions from nonroad equipment under CAA section

103(a), 42 U.S.C. 7403(a), 69 Fed. Reg. 12,151 (2004), is not only un-

helpful to petitioners-because, as they concede, Pet. Br. 33, section

103(a) is a research, not a regulatory, provision—but also contrary to

their argument because EPA in the cited notice distinguishes CO, from

“air pollutants,” 69 Fed. Reg. at 12,151 (“Emissions instrumentation will

measure carbon dioxide (CO,) and several air pollutants.”) (emphasis

added).

47

reading, EPA necessarily has authority under the CAA to

regulate anything that enters the ambient air and that may

result in “[a]dverse effects on public health and welfare.”

Pet. Br. 15. This is implausible at best. Bullets fired from a

handgun enter the ambient air and indisputably are physical

“substance[s]” that may endanger public health or welfare,

but the Clean Air Act has never been thought to authorize

EPA to impose gun controls. Contrary to petitioners’ attempt

to expand definitional provisions to the breaking point to cre-

ate vast new regulatory programs,'’ EPA is not compelled to

conclude that those provisions authorize regulation of any-

thing that enters the ambient air and that may pose risks to

health or welfare, irrespective of whether it, in common par-

lance, “pollutes” the air.

Petitioners ignore that the CAA’s core provisions to which

section 302(g) relates are structured to address pollution in

the ambient air, not global climatological phenomena. This

structure is reflected both in the text of section 302(g), which

provides that an “air pollutant” is an air pollution agent that

is emitted into or otherwise enters “the ambient air,” and in

the Act’s operative regulatory provisions. Congress added

the phrase “ambient air” to section 302(g) in 1977, Pub. L.

No. 95-95, § 301(c), 91 Stat. 770, after EPA and this Court

had defined “ambient air,” respectively, as “that portion of

the atmosphere, external to buildings, to which the general

public has access,” 40 C.F.R. 50.1(e) (promulgated at 36

Fed. Reg. 22,369, 22,384 (1971)) (emphasis added), and as

“the statute’s term for the outdoor air used by the general

public,” Train v. NRDC, 421 U.S. 60, 65 (1975) (emphasis

added)—as opposed to the entirety of Earth’s atmosphere.

By limiting “air pollutants” to air pollution agents that enter

'’ Cf. Brown & Williamson, 529 U.S. at 125-26 (Food, Drug, and Cos-

metic Act definitions did not provide FDA with authority to regulate to-

bacco products).

48

the ambient air, i.e., the air at or near ground level that the

general public breathes, section 302(g) provides no basis to

regulate substances due to their presence in the upper atmos-

phere—a determinative fact in the global climate change con-

text. '

Carbon dioxide, “the most pervasive of anthropogenic

[greenhouse gases],” Pet. App. A73, “is fairly consistent in

concentration throughout the world’s atmosphere up to ap-

proximately the lower stratosphere,” id. at A72 (emphasis in

original). It is carbon dioxide’s entry into and presence in the

global atmosphere, far above the “ambient,” ground-level air

that people breathe, that is believed to affect global climate.

See IPCC, Climate Change: The IPCC Scientific Assess-

ment, at 49 (1990) (“it is the change in the radiative flux at

the tropopause |the boundary between the troposphere and

the stratosphere], and not the surface, that expresses the ra-

diative forcing of [the] climate system”) (first emphasis in

original; second emphasis added). Petitioners do not claim

that global climate change results from the presence of

greenhouse gases in the ambicnt air. Rather, they claim it is

the accumulation of these gases in the global atmosphere that

causes global warming. Pet. Br. 4 (quoting NRC Report,

J.A. 151). Construing the CAA to authorize regulation of

substances as “air pollutants” due to their presence in the

general global atmosphere is inconsistent with the Act’s use

of the qualifier “ambient air.”

Operative provisions in the CAA addressing regulation of

mobile and stationary source emissions also reflect congres-

sional intent to limit the scope of regulatory authority over

substances to address their presence in the “ambient air.”

The national ambient air quality standard program, which

this Court described as the “heart” of the CAA, Union Elec-

tric Co. v. EPA, 427 U.S. 246, 249 (1976), applies to an air

pollutant with respect to its “presence .. . in the ambient

49

air’—not the global atmosphere generally—as a result of

mobile or stationary sources. 42 U.S.C. 7408(a)(1)(B), (2)

‘(emphasis added); see also id. 7521(i)(2)(A) (directing EPA

to examine the need for further motor vehicle emission re-

ductions “to attain or maintain” national ambient air quality

standards). Thus, the “criteria” on which EPA bases national

ambient air quality standards are “effects . . . from the pres-

ence of [the] pollutant in the ambient air.” Id. 7408(a)(2)

(emphasis added); see also id. 7409(b)(1) (directing estab-

lishment of “primary” national ambient air quality standards).

And the CAA directs EPA to set “secondary” national ambi-

ent air quality standards at the level “requisite to protect the

public welfare from . . . adverse effects associated with the

presence of [the] air pollutant in the ambient air’—not the

atmosphere generally. /d. 7409(b)(2) (emphasis added).

These provisions contradict petitioners’ view that the CAA

authorizes regulation of greenhouse gases due to their effects

in the global atmosphere.

Finally, petitioners assert that section 302(h), id. 7602(h),

which lists “climate” among many “effects on welfare,” cre-

ates authority to regulate global climate phenomena. Pet. Br.

15. This definitional provision, however, sets out no delega-

tion of regulatory authority at all; it merely describes kinds of

effects to be considered when regulatory authority otherwise

exists, and is exercised, under the CAA’s operative provi-

sions. Moreover, given section 302(g)’s limitation of “air

pollutant” to “air pollution agent[s]” in the “ambient air,” as

discussed above, it was at the very least reasonable for EPA

to conclude that the fact that the word “climate” appears in

section 302(h) does not create authority to regulate motor

vehicles’ emissions of greenhouse gases due to effects those

gases may have as a result of their presence in the global at-

mosphere outside the ambient air. Brown & Williamson, 529

US. at 132 (“The meaning—or ambiguity—of certain words

50

or phrases may only become evident when placed in [statu-

tory] context.”). \

For all of these reasons, EPA reasonably and lawfully

concluded that it lacks authority to regulate greenhouse gas

emissions to address global climate change under section

202(a)(1) of the CAA. EPA’s interpretation fully comports

with the Act and is entitled to deference. Chevron, 467 U.S.

at 842-45.

CONCLUSION

The Court should dismiss this case for lack.of standing or,

in the alternative, should affirm the court of appeals’ judg-

ment denying the petitions for review.

Respectfully submitted,

NORMAN W. FICHTHORN

(Counsel of Record)

ALLISON D. Woop

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Respondent

October 2006 Utility Air Regulatory Group