# Amicus Curiae Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 497

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A19. Public record. Not legal advice.