Amicus Curiae Brief — Massachusetts v. EPA

(Cob A

No. 05-1120

IN THE

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, ef ai.,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR AMICUS CURIAE

MADELEINE K. ALBRIGHT

IN SUPPORT OF PETITIONERS

KATHLEEN M. SULLIVAN

Counsel of Record

QUINN EMANUEL URQUHART

OLIVER & HEDGES, LLP

555 Twin Dolphin Drive,

Suite 560

Redwood Shores, CA 94065

August 31, 2006 (650) 801-5000

SB a gg TE I AE I EI EET TES TE! = ED

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

TABLE OF CONTENTS

TABLE OF ALT RGURRE TEBSi .22c.ccccccccccsccsccssccccsecssscrescese

INTEREST OF AMICUS CURIAE .......scccsseseresserereereees

SUMMARY OF ARGUMENT ..............c:csccssssereseesseeees

TCE cnceennncnrsecarsepsmnensasntinnmmesniatintientenmenneenins

I.

Il.

Ill.

FOREIGN POLICY CONSIDERATIONS

SHOULD PLAY NO ROLE IN THE EPA’S

EXERCISE OF JUDGMENT REGARDING

DOMESTIC REGULATION OF GREEN-

HOUSE GASES UNDER THE CLEAN AIR

TR i ctiicccccispiasiicneaipiricien

THE EPA’S ALLEGED FOREIGN POLICY

RATIONALE DESERVES NO SPECIAL

DEFERENCE, BECAUSE IT LACKS FOUN-

DATION IN AGENCY EXPERTISE AND IS

CONTRARY TO RELEVANT DIPLO-

DEA SUL, EiFGF Betti OR AS ceccccccccsccnssscssnesiseovesssoones

AN AGENCY’S USE OF A FOREIGN

POLICY TRUMP TO AVOID DOMESTIC

REGULATION MANDATED BY CON-

GRESS WOULD- RAISE - SERIOUS

SEPARATION OF POWERS CONCERNS

AND MIGHT WELL COMPROMISE

IEE ‘ncedbioseniensnnnseneninasinieopenssstenetinining

CONCLUSION ..........scsssssssssssssssessressssssensensenonssensenseees

il

TABLE OF AUTHORITIES

CASES

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

Defense Council,

SF Ee le GED cicnnclinccnnemenieniioneneiivieans

Gonzalez v. Oregon,

Sa ey I iiciiiinecctierasciscnsisencestipinscnionss

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

DC Ee CD iiccsenscnsccnemncstntanrteneeseibionnes

Japan Whaling Associationyv. American

Cetacean Society,

Se Se IID cnctiininiaticnseneensenezamniminitsinniine

Skidmore v. Swift & Co.,

ey a: CT ITED nnescesunecisninnnntemnanssinnmmsnneseten

Sumimoto Shoji America, Inc. v. Avagliano,

re eI EE ertciinttndcandicionmancenintmennnienes

United States v. Mead Corp.,

De ee ED vititrcniniiennineresiniseneninsecems

Whitman vy. American Trucking,

ey en IIE satscesnisensnniniesbentonascsitinieunsaeiin

Zadvydas v. Davis,

a ee ITED ntccrsncatinceisnincnnsnnsennsesonaneneneies

STATUTES, REGULATIONS, AND TREATIES

Be cts I tte cstsiccdeinncendnccciieeiianintadaignuiadeinedinie

SPU BA... § GEOG) .0severcvssccseseccescsiecccessoonsvonessensones

42 U.S.C. § 300 g- 1061 LB) .2..220..cerccreccsserercreesess

Re ee PO dasontistcniccussrnuneniiinniesiniemmmnstovinnn

ae 0b SEED ccisnteniincsiensiniinsacsenemnsienninnditin

es eI aricrtiscnsencousnsensedsonsensinminiantitntidienns

Se i Te CUTIE sdcineneninieviatnessenieniainnatannvnneiine

coe FMI iscencisensinicnnenicssieimipeedtdeniitgaiiiiess

Clean Air Act, §202(a)(1), 42 U.S.C.

PERE ITDD sioninasdenncevasiennneniietinteminniionadeniginieanoninntel

Page

ill

TABLE OF AUTHORITIES—Continued

Convention on Long-Range Transboundary Air

Pollution, Nov. 13, 1979, T.1.A.S. No. 10,541,

reprinted in 18 1.L.M. 1442 .......ccccceccseeeeeseseeees

Global Climate Protection Act of 1987, Pub. L.

No. 100-204, § 1103, 1987 U.S.C.C.A.N. (101

SETAE He eininnticennsteténinseaiciniomaedicnnieneniininaneetres

Kyoto Protocol to the United Nations Framework

Convention on Climate Change, Dec. 11,

Pees Se NN Sie oliiicnretiiniicienemistddsinnnanitiabiiniees

Montreal Protocol on Substances that Deplete the

Ozone Layer, Sept. 16, 1987, S. TREATY Doc.

No. 100-10 (1987), 1522 U.N.T.S. 3 (entered

ET, Ce, Fe cindicscccntticscorcenctactsdunaninvie

Protocol to the 1979 Convention on Long-Range

Transboundary Air Pollution to Abate Acid-

ification, Eutrophication and Ground-Level

Ozone, Nov. 30, 1999, State Dept. No. 05-

181, available at http://www.unece.org/env/

Irtap/full%20text/1999%20Multi.E.Amended.

Protocol to the 1979 Convention on Long-Range

Transboundary Air Pollution on Heavy Metals,

June 24, 1998, State Dept. No. 04-33, avail-

able at http://www.unece.org/env/Irtap/full%

20text/1998.Heavy.Metals.e.pdf.............:cccee

Protocol to the 1979 Convention on Long-Range

Transboundary Air Pollution Concerning the

Control of Emissions of Nitrogen Oxides

or Their Transboundary Fluxes, Oct. 31,

1988, T.LA.S No. 12,086, available at

http://www.unece.org/env/Irtap/full%20text/19

NINES sdeciincichienssuinitcmienaiaeihitiinsniedsicnicaitinitein

Page

1

7.8

13

11,12

11

1]

1]

iV

TABLE OF AUTHORITIES—Continued

Page

United Nations Framework Convention on Cli-

mate Change, May 9, 1992, S. TREATY Doc

No. 102-38 (1992), 31 [.L.M. 849......00.0.c.ccceee 13

MISCELLANEOUS -

RICHARD ELLIOT BENEDICK, OZONE DIPLOMACY

EF FPUE Dicansescernscentsssniséinesineiniiatiaiiiailiinnamnes 12

James L. Connaughton, Chairman, White House

Council on Environmental Quality, Testimony

before the United States Senate Committee on

Commerce, Science & Transportation Sub-

committee on Global Climate Change (Apr. 5,

2006), available at http://commerce.senate.gov/

pdf/connaughton-040506. pdf «0.0.0... .ceeeeeseeeseeees 13

Paula Dobriansky, Under Secretary of State for

Democracy and Global Affairs and Head of

U.S. Delegation to the Conference of Parties to

the UNFCCC, Remarks to the Conference of

Parties to the UN Framework Convention on

Climate Change (Dec. 7, 2005), available at

http://www.state.gov/g/rls/rm/2005/57867.htm .. 15

ENGAGING COUNTRIES: STRENGTHENING COM-

PLIANCE WITH INTERNATIONAL ENVIRON-

MENTAL ACCORDS (Edith Brown Weiss &

Harold K. Jacobson, eds., 1998).............cccceeeeeee 18

Fact Sheet: The Asia-Pacific Partnership on

Clean Development and Climate, available at

http://www. whitehouse.gov/news/releases/200

G/DL /2ODGO1 1 1B Betta ....cccrcccccsscccncscccsccsccsescssces 13

Jack L. Goldsmith, Federal Courts, Foreign

Affairs and Federalism, 83 VA. L. REV. 1617

(Se evinécansdtitatsiainbeisatciassesiiabidanaeialuaa 17

Vv

TABLE OF AUTHORITIES—Continued

INTERNATIONAL ENVIRONMENTAL SOFT LAW:

COLLECTION OF RELEVANT INSTRUMENTS

(W.E. Burhenne, ed., 1993).........cc0.ccccccosccsesesees

LISA MARTIN, DEMOCRATIC COMMITMENTS,

LEGISLATURES AND INTERNATIONAL Coop-

iii aliaianatecsaeatemnennntinensons

Secretary, Climate Change Fact Sheet: The Bush

Administration’s Action on Global Climate

Change (May 18, 2005), available at http://

www.state.gov/g/oes/ris/fs/46741 htm. .............

John K. Setear, Ozone, Iteration and Inter-

national Law, 40 VA. J. INT’L L. 193 (1999)...

Text of a Letter From the President, Mar. 13,

2001, available at http://www.whitehouse.

gov/news/releases/2001/03/ 20010314.htm! .....

U.S. Won't Follow Climate Treaty Provisions,

Whitman Says, N.Y. TiMES (Mar. 27, 2001)......

Harlan Watson, Senior Climate Negotiator and

Alternate Head of U.S. Delegation, Remarks

on President’s Non-Paper (Dec. 2, 2005)

available at http://www.state.gov/g/oes/rls/

LE Cee

Page

18

15

IN THE

Supreme Court of the Anited States

No. 05-1120

COMMONWEALTH OF MASSACHUSETTS, ef ai.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR AMICUS CURIAE

MADELEINE K. ALBRIGHT

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE'

Amicus Madeleine K. Albright served as Secretary of State

of the United States from 1997 to 2001. From 1993 to 1997,

Dr. Albright was the United States permanent representa-

tive to the United Nations. Dr. Albright has longstanding

professional expertise in foreign policy and international

' The parties have consented to the filing of this brief. Their consent

letters are on file with the Clerk of the Court. Pursuant to Rule 37.6,

counsel for Amicus Curiae certifies that this brief was not written in.

whole or in part by counsel for any party, and that no person or entity

other than counsel for Amicus has made a monetary contribution to the

preparation and submission of this brief.

2

diplomacy, and a strong interest in the Court’s resolution of

the legal issues in this case to the extent that they bear on

foreign policy and international diplomacy.

Now a principal of The Albright Group LLC, a global

strategy firm, and the first Michael and Virginia Mortara

Endowed Professor in the Practice of Diplomacy at the

Georgetown School of Foreign Service, Dr. Albright also.

serves on the board of directors of the Council on Foreign

Relations and the Aspen Institute.

Amicus does not advocate any particular foreign policy

approach to global climate change, and takes no position here

on the merits of the current government’s approach to climate

change. The purpose of this brief is to alert the Court to the

disturbing implications of one of the government’s claims in

this case: that the EPA Administrator may decline to regulate

greenhouse gases under the Clean Air Act, even if he has the

requisite regulatory authority, based in part on foreign policy

considerations unrelated to the statutory criteria established

by Congress.

SUMMARY OF ARGUMENT

The Clean Air Act, § 202(a)(1), provides that the Ad-

ministrator of the EPA “shall by regulation prescribe...

standards applicable to the emission of any air pollutant”

from any class of motor vehicles “which in his judgment

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

anticipated to endanger public health or welfare.” 42 U.S.C.

§7521(a)(1). In denying a petition seeking regulation under

this provision of certain greenhouse gases (“GHGs”) emitted

by motor vehicles, the EPA claimed several policy rationales

unrelated to these express statutory criteria. Among them, it

asserted a foreign policy rationale, namely that “{u}nilateral

EPA regulation of motor vehicle GHG emissions could also

weaken U.S. efforts to persuade key developing countries to

reduce the GHG intensity of their economies.” Pet. App. A86.

3

The agency concluded that, “[u]navoidably, climate change

raises important foreign policy issues, and it is the President’s

prerogative to address them.” /d.

Amicus has three objections to this assertion based on her

longstanding experience in foreign policy and international

diplomacy. First, the EPA possesses neither the mandate nor

the expertise necessary to make foreign policy judgments.

Congress has not authorized the EPA to consider foreign

policy in the exercise of its “judgment” whether to regulate

greenhouse gases; indeed, foreign policy is nowhere men-

tioned in the relevant provision. Congress has been careful to

separate the EPA’s domestic regulatory function from the

formulation of international climate policy, which Congress

has specifically assigned, in the Global Climate Protection

Act of 1987, to the Department of State.

Second, even if foreign policy considerations were rele-

vant to the EPA’s “judgment” under the Clean Air Act,

§ 202(a)(1), the EPA’s foreign policy rationale for with-

holding regulation here does not deserve deference under

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

Council, 467 U.S. 837 (1984), or Skidmore v. Swift & Co.,

323 U.S. 134 (1944). The EPA’s judgment was not produced

through consultation with expert foreign policy agencies. It

also contradicts relevant diplomatic experience. There is no

natural tension between domestic regulation and the ability of

the United States to conduct foreign policy on climate change

or related matters. Withholding regulation has not been a

pre-condition for engaging other nations in global solutions

in the past.

Moreover, the EPA’s rationale conflicts with the govern-

ment’s own foreign policy on global warming. The EPA’s

rationale implies that withholding domestic regulation is

necessary to ensure the government’s ability to bargain with

other nations over GHG. This might be true if the govern-

ment were pursuing a “bargain through leverage” strategy, in

4

which the government withheld mandatory domestic reduc-

tions unless and until other nations agreed to mandatory

reductions as well. But the government is not doing so. It is

pursuing instead a policy of encouraging voluntary action on

the part of developing nations, consistent with the economic

development priorities of those nations. Domestic regulation

under § 202(a)(1) cannot “weaken” the government’s ability

to persuade developing nations to make voluntary reductions

consistent with their own priorities.

Third, the EPA’s invocation of a speculative foreign policy

concer as a basis for devlining to implement a domestic

statutory mandate has troubling implications beyond this

case. If this Court were to accept the existence of such an

amorphous foreign policy override, any statutory provision

requiring agency “judgment” on the basis of statutory criteria

could be transformed into a discretionary question of foreign

relations, raising serious separation of powers concerns.

Given the number of domestic issues that are now the subject

of international negotiation, the opportunities for executive

invocation of such a foreign policy trump are substantial. In

the long run, the nation’s diplomatic efforts are likely to be

compromised by such an approach.

For these reasons, Amicus supports reversal of the

judgment of the D.C. Circuit below.

ARGUMENT

Nothing in the Clean Air Act, § 202(a)(1), refers to foreign

policy. Rather, that provision states simply that the

Administrator of the EPA “shall by regulation prescribe . . .

standards applicable to the emission of any air pollutant”

from any class of motor vehicles “which in his judgment

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

anticipated to endanger public health or welfare.” 42 U.S.C.

§7521(a)(1). The EPA claims nonetheless that foreign policy

considerations help to justify its refusal to regulate green-

5

house gas (“GHG”) emissions. Specifically, the Adminis-

trator asserts that domestic regulation of greenhouse gases

could “weaken U.S. efforts to persuade key developing

countries to reduce the GHG intensity of their economies,”

and suggests that climate change must be left to the foreign

policy prerogative of the President without agency action.

Pet. App. A86.

This claim is unpersuasive as a matter of foreign policy and

international diplomacy, for three reasons. First, foreign pol-

icy considerations are not relevant to the EPA’s domestic

regulatory judgment under the Clean Air Act, § 202(a)(1).

Congress has made this clear both in the plain text of the

Clean Air Act and in the Global Climate Protection Act of

1987. Second, even if foreign policy considerations were

relevant to the EPA’s judgment under § 202(a)(1), the

particular foreign policy rationale the EPA offers here for

withholding domestic regulation is not entitled to deference

under any applicable standard of review. The EPA’s foreign

policy claims have no support in the record, contradict

televant diplomatic experience, appear not to be the product

of consultation with relevant expert foreign policy agencies,

and are irrational in light of the government’s own foreign

policy on climate change. Finally, if speculative foreign

policy considerations may be used by the EPA to justify a

refusal to regulate, as the EPA suggests, then foreign policy

might become a trump card for the executive branch in a

variety of domestic matters that are subject to international

negotiation. This argument invites the misuse of foreign

policy for domestic policy goals. Under such an approach, the

long-term diplomatic interests of the United States would be

compromised, not enhanced.

6

I. FOREIGN POLICY CONSIDERATIONS

SHOULD PLAY NO ROLE IN THE EPA’S

EXERCISE OF JUDGMENT REGARDING

DOMESTIC REGULATION OF GREENHOUSE

GASES UNDER THE CLEAN AIR ACT,

§ 202(a)(1)

Congress has not delegated foreign policy considerations to

the EPA under the Clean Air Act, § 202(a)(1). The language

of the statute omits any foreign policy concerns, and a nega-

tive implication may be drawn from the fact that Congress

has elsewhere delegated responsibility for global climate

change policy to the Department of State, not the EPA.

To begin with, the Clean Air Act, § 202(a)(1), nowhere

mentions foreign policy as a relevant_consideration, limiting

the EPA’s “judgment” instead to the narrow question of

whether motor vehicles emitting greenhouse gases can “cause

or contribute to air pollution which may . . . endanger public

health or welfare.” Congress knows well how to delegate

foreign policy tasks to executive agencies, including in the

environmental area. Indeed, several sections of the Clean Air

Act specifically refer to some aspect of United States foreign

policy or international law.” Section 202(a)(1), by contrast,

remains resoundingly silent on foreign policy considerations.

? See e.g., 42 U.S.C. § 7415 (under the title “International Air Pollu-

tion,” stating that when the Administrator believes that pollution origi-

nating in the United States is endangering the public health or welfare in

another nation, he shall notify the governor of the state from which the

emissions originate, which must modify its policy to prevent such

endangerment); § 7617 (under the title “Stratospheric Ozone Protection,”

providing that “the President, through the Secretary of State and the

Assistant Secretary of State for Oceans and International Environmental

and Scientific Affairs, shall negotiate multilateral treaties, conventions,

resolutions, or other agreements, and formulate, present, or support

proposals at the United Nations and other appropriate international forums

and shall report to the Congress periodically on efforts to arrive at such

agreements”); § 7702(a) (under the heading “Congressional findings on

7

Moreover, Congress has made the irrelevance of for-

eign policy to the EPA’s domestic judgments under

§ 202(a)(1) doubly clear by designating the Department of

State, not the EPA, as the executive agency responsible for

United States foreign policy regarding climate change. See

Global Climate Protection Act of 1987 (“GCPA”), Pub. L.

No. 100-204, § 1103(c), 1987 U.S.C.C.A.N. (101 Stat.) 1331,

1409. The GCPA tasks the State Department -with the

coordination of “United States Policy in the International

Arena” and, in contrast, charges the EPA with the formu-

lation of “United States policy.” See GCPA § 1103(b) (“The

President, through the Environmental Protection Agency,

shall be responsible for developing and proposing to Con-

gress a coordinated national policy on global climate change”

(emphasis added)).

In addition, the GCPA conspicuously omits the State

Department from the list of agencies whose findings the EPA

must consider before making domestic climate policy.* The

acid rain,” stating that “[t}he Congress finds and declares that acid

precipitation resulting from other than natural sources... could affect

areas distant from sources and thus involve issues of national and

international policy”).

* Under the heading “Coordination of United States Policy in the Inter-

national Arena,” GCPA § 1103(c) states: “The Secretary of State shall be

responsible to coordinate those aspects of United States policy requir-

ing action through the channels of multilateral diplomacy, including

the United Nations Environmental Program and other international

organizations.”

* See GCPA § 1103 (b) (“Such policy formulation shall consider re-

search findings of the Committee on Earth Sciences of the Federal Coor-

dinating Council on Science and Engineering Technology, the National

Academy of Sciences, the National Oceanic and Atmospheric Admin-

istration, the National Science Foundation, the National Aeronautic and

Space Administration, the Department of Energy, the Environmental

Protection Agency, and other organizations engaged in the conduct of

scientific research.”).

8

listed agencies are primarily responsible for scientific find-

ings relevant to the EPA’s threshold “endangerment” deter-

mination under § 202(a)(1). This supports the claim that

Congress intends the EPA’s domestic regulatory judgments to

be independent of foreign policy considerations and focused

instead on the express statutory criteria.

If anything, the GCPA suggests that the EPA has it back-

wards: the State Department must take account of minimum

regulatory standards in domestic regulation when formulating

international climate policy, not the other way around. Thus,

domestic climate regulation is a floor below which inter-

national agreements may not go. See GCPA § 1103(c) (“In

the formulation of [aspects of U.S. policy requiring

multilateral diplomacy], the Secretary of State shall, under the

direction of the President, work jointly with the Administrator

of the Environmental Protection Agency and other United

States agencies concerned with environmental protection,

consistent with applicable Federal law.”). But Congress has

given no indication that domestic policy must similarly defer

to foreign policy in the international climate policy arena. In

the face of such contrary congressional indications, the EPA’s

assertion of foreign policy grounds to decline to regulate

domestic greenhouse gases is unauthorized.

Il. THE EPA’S ALLEGED FOREIGN POLICY

RATIONALE DESERVES NO SPECIAL DEFER-

ENCE, BECAUSE IT LACKS FOUNDATION IN

AGENCY EXPERTISE AND IS CONTRARY TO

RELEVANT DIPLOMATIC EXPERIENCE

Even if foreign policy considerations were relevant to the

EPA’s “judgment” under the Clean Air Act, § 202(a)(1), the

EPA’s foreign policy rationale in this case warrants no

special deference. Agencies are entitled to deference only for

judgments made pursuant to their specific mandates. For

example, deference is appropriate under Chevron U.S.A., Inc.

9

v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), “when it appears that Congress delegated authority to

the agency generally to make rules carrying the force of law,

and that the agency interpretation claiming deference was

promulgated in the exercise of that authority.” United States

v. Mead Corp., 533 U.S. 218, 226-27 (2001).

By contrast, when an agency acts on matters not delegated

to the agency by statute and beyond its expertise, no special

deference is appropriate. See Gonzalez v. Oregon, 126 S. Ct.

904, 922 (2006) (holding that the Attorney General’s statu-

tory authority to schedule controlled substances did not

extend to prohibiting doctors from prescribing regulated

drugs for use in physician-assisted suicide under state law

permitting the procedure, noting that “deference here is

tempered by the Attorney General’s lack of expertise in this

area and the apparent absence of any consultation with

anyone outside the Department of Justice who might aid in a

reasoned judgment”).

In keeping with these general principles, this Court has

deferred to administrative agencies on matters of foreign

policy only when those agencies can claim a statutory

mandate to consider foreign policy, and when they possess

concomitant expertise. See Japan Whaling Association v.

American Cetacean Society, 478 U.S. 221 (1986) (deferring

to the Secretary of Commerce’s refusal to certify a nation’s

non-conformity where the relevant ‘statute specifically

directed the agency to determine whether the nation’s fishing

practices undermined international conservation programs).

See also Sumimoto Shoji America, Inc. v. Avagliano, 457 U.S.

176, 184-85 (1982) (deferring to the State Department’s

interpretation of an international treaty on grounds that,

“{a}lthough not conclusive, the meaning attributed to treaty

provisions by the Gevernment agencies charged with their

negotiation and enforcement is entitled to great weight.”);

Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (according

10

weight to decisions of the Immigration and Naturalization

Service because of the agency’s “greater immigration-related

expertise”).

Here, as with the Department of Justice’s interpretation of

its authority in Gonzalez v. Oregon, the EPA’s interpretation

that its § 202(a)(1) “judgment” includes foreign policy dis-

cretion was not made pursuant to any delegation by Congress.

Unlike the Department of Commerce in Japan Whaling, the

EPA was not charged by Congress with making any finding

regarding foreign nations or international agreements.

Indeed, foreign policy is nowhere mentioned in § 202(a)(1).

The appropriate standard of review is therefore not that

applied in Chevron but ‘rather that applied in Skidmore

v. Swift& Co., 323 U.S. 134 (1944) (holding an agency

interpretation entitled to respect only to the extent it has the

power to persuade).

Under Skidmore, the EPA’s foreign policy rationale is not

entitled to deference. Here, as in Gonzalez v. Oregon, the

agency came up with its policy rationale entirely on its own,

even though it lacked the relevant expertise. Nothing in the

record suggests that the EPA consulted with the Department

of State, the National Security Council, or any other relevant

agency with foreign policy expertise, on whether its foreign

policy position was appropriate.

Even if the more deferential Chevron standard of review

were applicable, the EPA’s rationale does not meet the

requisite standard of reasonableness. To begin with, there is

nothing in the record to support the EPA’s assertion that

dom uc regulation would “weaken” United States efforts to

engage developing nations in reducing their greenhouse gas

emissions. Diplomatic experience suggests that this assertion

is incorrect. Withholding regulation has not in the past been a

pre-condition for engaging other nations in global solutions to

environmental problems. The United States is party to several

_ international agreements on air pollution that were negotiated

11

after related domestic regulation was already authorized and

underway.” These agreements suggest that prior domestic

regulation does not tie the government’s diplomatic hands on

a matter of global concern when it later negotiates inter-

national agreements.

It is at least equally plausible that domestic regulation

might help prompt other nations to join in later international

responses to global environmental problems. For example,

early United States regulation of ozone-depleting substances

helped to spur an international process that ultimately resulted

in the Montreal Protocol, the agreement that phased out

ozone-damaging chlorofluorocarbons.° Thus, there is no

natural tension between domestic regulation and the ability of

the United States to conduct foreign policy on climate change

or related matters.

The EPA also claimed in its petition denial that the benefits

of unilateral regulation of greenhouse gases by the United

States could be “lost” because increases in emissions by

developing nations could “overwhelm” them. Pet. App. A86.

Yet again, past diplomatic experience casts doubt on such an

* See Convention on Long-Range Transboundary Air Pollution, Nov.

13, 1979, T.LA.S. No. 10,541, reprinted in 18 1.L.M. 1442. See also

Protocol to the 1979 Convention on Long-Range Transboundary Air

Pollution to Abate Acidification, Eutrophication and Ground-Level

Ozone, Nov. 30, 1999, State Dept. No. 05-181, available at http://www.

unece.org/env/Irtap/full%20text/1999%20Multi.E.Amended.2005.pdf; Pro-

tocol to the 1979 Convention on Long-Range Transboundary Air Pollu-

tion on Heavy Metals, June 24, 1998, State Dept. No. 04-33, available

at http://www.unece.org/env/Irtap/full%20text/1998.Heavy.Metals.e.pdf;

Protocol to the 1979 Convention on Long-Range Transboundary Air

Pollution Concerning the Control of Emissions of Nitrogen Oxides or

Their Transboundary Fluxes, Oct. 31, 1988, T.1.A.S No. 12,086, available

at http://www.unece.org/env/Irtap/full%20text’ 1988.NOX.e.pdf.

° Montreal Protocol on Substances that Deplete the Ozone Layer, Sept.

16, 1987, S. TREATY Doc. No. 100-10 (1987), 1522 U.N.T.S. 3 (entered

into force Jan. 1, 1989).

12

assertion. Early United States reductions of ozone-depleting

substances were not overwhelmed by increased emissions

from other nations; indeed, reductions by the United States

were key to securing concomitant reductions by other nations.

See RICHARD ELLIOT BENEDICK, OZONE DIPLOMACY 6 (1991)

(“[A]n individual nation’s policies and leadership made a

major difference. The United States undertook such leader-

ship in achieving international agreement on ozone protec-

tion. The U.S. government set the example by being the first

to take regulatory action against the suspect chemicals. Later,

it developed a comprehensive global plan for protecting the

ozone layer and tenaciously campaigned for its international

acceptance through bilateral and multilateral initiatives. .. .”

(emphasis in original)). See also John K. Setear, Ozone,

Iteration and International Law, 40 Va. J. INT’L L. 193,

196 (1999).

The EPA’s foreign policy rationale for withholding regu-

lation might perhaps have some rationality if it were United

States policy to seek leverage against other nations for

mandatory emissions reductions by withholding mandatory

domestic reductions unless and until other nations agreed to

mandatory reductions as well. In that event, it might be the

case that any premature domestic reductions would be

overwhelmed by other nations’ failure to comply.

But any such reasoning is belied in this case by the

government’s own actual international policy on climate

change, which eschews a policy of pursuing mandatory

reductions in favor of voluntary action.’ The United States

’ The EPA’s petition denial cites the Montreal Protocol as an

illustration of its point that international agreements requiring mutual

mandatory reductions are necessary to ensure that the benefits of

unilateral reductions are not lost. The EPA’s example, however, makes

Amicus’ point. The Montreal Protocol shows that a leverage strategy is

only plausible if a state actually engages in bargaining: under Presidents

Ronald Reagan and George H.W. Bush, the United States actively

13

has formally articulated, and is actively pursuing, a policy of

encouraging voluntary action on the part of developing

nations, consistent with the economic development priorities

of those nations. This policy is exemplified by United States

participation in the Asia-Pacific Partnership on Clean

Development and Climate.’ While Amicus takes no position

on the merits of this policy, it is difficult to see how domestic

regulation under § 202(a)(1) could “weaken” the govern-

ment’s ability to persuade developing nations to make

voluntary reductions consistent with their own priorities.

The United States has declined to pursue mandatory emis-

sions reductions under the auspices of the U.N. Framework

Convention on Climate Change,’ the Kyoto Protocol,"® or any

other international bilateral or multilateral process whose

purpose is to provide the forum for negotiating quid pro quo

participated in and signed the Montreal Protocol, pursuing a leverage

Strategy similar to that the EPA cited. By contrast, current climate policy

has formally rejected a diplomatic strategy of bargaining for mandatory

* See Fact Sheet: The Asia-Pacific Partnership on Clean Development

and Climate, available at hitp://www.whitehouse.gov/news/releases/

2006/01/20060111-8.html; James L. Connaughton, Chairman, White

House Council on Environmental Quality, Testimony before the United

States Senate Committee on Commerce, Science & Transportation Sub-

committee on Global Climate Change (Apr. 5, 2006), available at http://

commerce.senate.gov/pdf/Connaughton-040506.pdf (describing the Asia-

Pacific Partnership on Clean Development and Climate Change as

“focus[ing] on voluntary practical measures to create new investment

opportunities, build local capacity, and remove barriers to the introduction

of cleaner, more efficient technologies”).

* United Nations Framework Convention on Climate Change, May 9,

1992, S. TREATY Doc No. 102-38 (1992), 31 i.L.M. 849. President

George H.W. Bush signed the Treaty and it was ratified by the Senate in

1992. S. Rep. No. 103-35, at 76-78 (1993).

'° Kyoto Protocol to the United Nations Framework Convention on

Climate Change, Dec. | 1, 1997, 37 1.L.M. 22.

14

reductions in greenhouse gas emissions. Administration pol-

icy has remained consistent on this point. In 2001, the

President sent a letter to four Senators stating his opposition

to the Kyoto Protocol, and reversing his earlier policy of

calling for mandatory emissions cuts.'' Two weeks later, the

United States abandoned the Kyoto Protocol, announcing that

it did not support the agreement and would ‘ne. transmit it to

the Senate for its advice and consent to ratification.'* The

government then began entering into bilateral and multilateral

agreements with other nations geared not toward bargain

ing over targets and timetables for mandatory reductions, but

instead toward voluntary programs.’* In December 2005,

nations gathered in Montreal, Canada for the Eleventh Ses-

sion of the Conference of Parties to the Rio Declaration and

the First Meeting of the Parties to the Kyoto Protocol. There,

the United States reiterated that it is not pursuing a leverage

'' See Text of a Letter From the President, Mar. 13, 2001, available at

http://www.whitehouse.gov/news/ releases/200 1 /03/20010314.html (“I do

not believe, however, that the government should impose on power plants

mandatory emissions reductions for carbon dioxide, which is not a

“pollutant” under the Clean Air Act.”).

" See, e.g., U.S. Won't Follow Climate Treaty Provisions, Whitman

Says, N.Y. TIMES A19 (Mar. 28, 2001).

'? These international agreements currently include (a) the Methane-to-

Markets Partnership; (b) the Intemational Partnership for a Hydrogen

Economy; (c) Carbon Sequestration Leadership Forum; (d) Generation IV

International Forum; (e) Renewable Energy and Energy Efficiency Part-

nership; (f) Regional and Bilateral Cooperation; (g) Global Environmental

Facility; (h) Tropical Forest Conservation Act (TFCA) and (i) the Asia-

Pacific Partnership on Clean Development and Climate. See Secretary,

Climate Change Fact Sheet: The Bush Administration's Action on Global

Climate Change (May 18, 2005), available at http://www.state.gov/g’

oes/ris/fs/46741 htm.

15

strategy; rather, the nation’s official position opposes any

such formal negotiations. '

Thus, domestic regulation of greenhouse gases would seem

consistent with, not contrary to, the government’s foreign

policy on global climate change. Whatever the best inter-

national strategy on climate change might be, there is nothing

in the record, relevant diplomatic experience or the govern-

ment’s own foreign policy on climate change, to support the

EPA’s foreign policy rationale for withholding domestic

regulation. On any applicable standard of review, it is not

entitled to any special deference.

'* See Harlan Watson, Senior Climate Negotiator and Alternate Head

of U.S. Delegation, Remarks on President's Non-Paper (Dec. 2, 2005)

available at http://www.siate.gov/g/oes/ris/rm/S7688.htm (“The United

States is opposed to any such discussions under the Framework Conven-

tion..... The U.S. position remains consistent: We see no change in

current t conditions that would result in a negotiated agreement consistent

with the U.S. approach. . . We are not a party to the Kyoto Protocol and

we do not support any such approach under the Convention for future

commitments”); Paula Dobriansky, Under Secretary of State for

Democracy and Global Affairs and Head of U.S. Delegation to the

Conference of Parties to the UNFCCC, Remarks to the Conference of

Parties to the UN Framework Convention on Climate Change (Dec. 7,

2005), available at http://www.state.gov/g/ris/rm/2005/57867.hum (“[The

United States opposes} formalized discussions—specifically formalized

discussions that provide a basis for negotiations. It is our belief that

progress cannot be made through these formalized discussions. ... [W]e

also believe firmly that negotiations will not reap progress, as | indicated,

because there are differing perspectives”).

16

Ill. AN AGENCY’S USE OF A FOREIGN POLICY

TRUMP TO AVOID DOMESTIC REGULATION

MANDATED BY CONGRESS WOULD RAISE

SERIOUS SEPARATION OF POWERS CON-

CERNS AND MIGHT WELL COMPROMISE

DIPLOMACY

Lacking any statutory delegation or relevant diplomatic

precedent, the EPA petition denial relies on vague notions of

executive power in support of its argument that foreign policy

concerns should override congressional intent. This argument

has troubling implications beyond this case, the Clean Air

Act, or the context of global warming. In certain contexts, it

is clearly appropriate for courts to defer to executive deter-

minations about the foreign policy interests of the United

States. But where Congress has carefully divided domestic

and foreign policy tasks, as it has in the global climate change

context, vague and speculative invocations of foreign policy

should be insufficient to displace the congressional scheme.

The foreign policy trump the EPA has invoked here cannot

be confined to the Clean Air Act. Numerous statutes require

administrative agencies to make “judgments” prior to

regulating, while conditioning those judgments on specific

statutory criteria.'" Agencies may not override those criteria

'S See, e.g., 42 U.S.C. § 7409 (creating two-step process for estab-

lishing national ambient air quality standards, including threshold

determination whether pollutant is harmful to health and welfare);

§ 7411(b\(1) (requiring EPA Administrator to regulate emissions from

stationary sources by first listing a “category” of sources when “in his

judgment it causes or contributes to air pollution which may reasonably be

anticipated to endanger health of welfare”). See also Federal Food. Drug,

and Cosmetic Act, 2! U.S.C.A. § 355 (authorizing the Food and Drug

Administration to regulate “new drugs,” which requires a threshold

determination based on the definition of “new drug” in Section 321(p));

Occupational Safety and Health Act, 29 U.S.C. § 652(8) (defining “occu-

pationa! safety and health standard”); /ndus. Union Dep't, AFL-CIO v.

Am. Petroleum, 448 U.S. 607, 614-15 (1980) (establishing that OSHA

17

for policy reasons that are ultra vires. Whitman v. American

Trucking, 531 U.S. 457 (2001). Contrary to the EPA’s

argument, ultra vires foreign policy reasons are no exception.

If the Court were to accept a foreign policy override even

where Congress has clearly set forth wholly domestic criteria,

as it has in § 202(a)(1), then virtually any statute requiring

agency “judgment” could be transformed into a discretionary

question of foreign relations, raising serious separation of

powers concerns.

It is no answer to suggest that, even if an area of domestic

regulation has not yet produced international negotiations, it

might do so in the future, requiring domestic regulatory

abstinence now for the sake of future foreign policy. The

range of domestic issues over which the federal government

might be involved in international negotiations is vast, and

opportunities for such executive invocation of a foreign

policy trump would be difficult to cabin. The traditional

foreign policy agenda has expanded to include a wide variety

of social, cultural, labor, environmental and health issues that

were previously thought to be exclusively domestic concerns.

See Jack L. Goldsmith, Federal Courts, Foreign Affairs and

Federalism, 83 VA. L. REV. 1617, 1671-72 (1997) (“Tradi-

tionally, public internationa! law regulated relations among

nations. It rarely overlapped with domestic law, and it rarely

regulated private activity. Today, by contrast, it frequently

regulates both public and private activities that were formerly

domestic concerns.” (internal citations omitted)). There are

definition contains a threshold determination that the toxic poses a

significant health risk in the workplace); Safe Drinking Water Act, 42

U.S.C. § 300g-1(b)(1)(B) (requiring the EPA to publish a maximum

contaminant level goal and promulgate a national primary drinking water

regulation for a contaminant if the Administrator determines, among other

things, that “in the sole judgment of the Administrator, regulation of such

contaminant presents a meaningful opportunity for health risk reduction

for persons served by public water systems”).

ee

‘.

18

literally thousands of international instruments, including

treaties, non-binding declarations, executive agreements, vol-

untary undertakings, memoranda of understanding, partner-

ships, and the like, to which the United States is currently

party, or in which the United States plays some role or could

play some role in the future.'®

In some instances, the implications of the EPA’s position

might benefit the United States as a practical matter; in

others, they might not. But there is a danger that in the long

term, the diplomatic interests of the United States might well

be compromised, not eni.anced, if executive agencies had

plenary power to allow foreign policy considerations to trump

regulatory judgments that Congress required them to make.

Administrations of different political leanings have all from

time to time made representations internationally that their

negotiating positions are limited by Acts of Congress and that

there are minimum domestic statutory standards that must be

observed. This is particularly true in negotiations on trade,

fisheries, commercial access, and military aid. Freeing the

Executive from the constraints of domestic legislation in

these and other instances would fundamentally alter the

practice of diplomacy, and jeopardize the careful balance of

power and roles that characterize the management of United

'© On environmental matters alone, there are over a thousand such

agreements. “By 1992, there were more than 900 international legal

instruments (mostly binding) that were either fully directed to environ-

mental protection or had more than one important provision addressing

the issue.” ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH

INTERNATIONAL ENVIRONMENTAL ACCORDS | & n.1 (Edith Brown Weiss

& Harold K. Jacobson, eds., 1998) (describing compilation under-

taken by editors). Since then, the United Nations Treaty Series catalogues

an additional 173 bilateral and 44 multilateral treaties under the category

of “Environment.” A standard compilation, updated through 2003,

identifies 166 major non-binding internationa! instruments related to the

environment. See INTERNATIONAI. ENVIRONMENTAL SOFT LAW: COLLEC-

TION OF RELEVANT INSTRUMENTS (W.E. Burhenne, ed., 1993).

19

States foreign relations.'’ The executive latitude implied by

the EPA’s petition denial in this case thus might well come at

a high price, not only for Congress, which could see its

Statutory standards ignored, but for future presidents, who, in

many instances, could no longer credibly claim that they are

unable to act in a way sought by a foreign negotiator. This

would remove a valuable tool used regularly to limit the

agenda for diplomacy.

An interpretation of the Clean Air Act that permits the

invocation of a foreign policy override thus would invite the

misuse of foreign policy to achieve domestic policy goals. It

would enhance the executive branch at the expense of

Congress under the guise of foreign policy necessity while

undermining the long-term: diplomatic interests of the United

States. In an era of in which many domestic issues are tinged

with foreign policy overtones, and where nations leverage

and trade across many issues and interests, the opportunities

for executive mischief are plenty. Thus diplomatic prudence,

as well as the plain language of the Clean Air Act and this

Court’s precedents, support rejection of the EPA’s expansive

interpretation of its foreign policy discretion to ignore the

domestic regulatory mandates Congress set forth in the Clean

Air Act.

"” See LISA MARTIN, DEMOCRATIC COMMITMENTS, LEGISLATURES AND

INTERNATIONAL COOPERATION 22 (2000) (“In democracies institutional-

ized legislative integration is a key determinant of the credibility of

commitments.”’).

- 20

CONCLUSION

For the foregoing reasons, and those stated in the Brief of

Petitioners, the judgment of the Court of ace should be

reversed.

Respectfully submitted,

KATHLEEN M. SULLIVAN

Counsel of Record

QUINN EMANUEL URQUHART

OLIVER & HEDGES, LLP

555 Twin Dolphin Drive,

Suite 560

Redwood Shores, CA 94065

August 31, 2006 (650) 801-5000