Amicus Curiae Brief — Massachusetts v. EPA

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OW No. 05-1120 ea

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In The ALS 314 2e>

Supreme Court of the Gniterr States.

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COMMONWEALTH OF

MASSACHUSETTS, ET AL.,

Petitioners,

v.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

¢

BRIEF OF THE STATES OF ARIZONA,

IOWA, MARYLAND, MINNESOTA, AND

WISCONSIN, AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

e

AMY J. WILDERMUTH*

UNIVERSITY OF UTAH

S.J. QUINNEY COLLEGE

OF LAW

332 South 1400 East,

Room 101

Salt Lake City, UT 84112

(801) 581-6833

SANNE H. KNUDSEN

FAEGRE & BENSON, LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402

(612) 766-7000

TERRY GODDARD

Attorney General of Arizona

PAULA S. BICKETT

Chief Counsel, Civil Appeals

JOSEPH P. MIKITISH

Assistant Attorney General

1275 West Washington Street

Phoenix, AZ 85007

(602) 364-3319

Counsel for Amicus Curiae

*Counsel of Record

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

THOMAS J. MILLER

Attorney General of Iowa

1305 East Walnut Street

Des Moines, IA 50319

(515) 281-5166

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

200 Saint Paul Place

Baltimore, MD 21202

(410) 576-6300

MIKE HATCH

Attorney General of

Minnesota

PETER MARKER,

Manager, Environmental

Protection Division

900 Bremer Tower

445 Minnesota St.

St. Paul, MN 55101

(651) 296-7341

PEGGY A. LAUTENSCHLAGER

Attorney General of

Wisconsin

THOMAS J. DAWSON

Assistant Attorney General

and Director, Environmental

Protection Unit

17 West Main Street

Madison, WI 53707

(608) 266-1221

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........ selene iehdecaeelaceiaeieaieiliaide ii

INTEREST OF AMICI CURIAE ...................cccceeeeeeee 1

ITT tvsiceitienicssiiiipueidissiienstetiimaiabeiteianilibintanbicatridinmintesbauesnii 5

Be I Be wicccnstccccniantcsicnsciinsnnaninndntinis 6

II. State Efforts to Regulate Motor Vehicle Emis-

sions of Climate Change Pollutants ................... 9

SUMMARY OF ARGUMENT. ..................:cccceeeeeeeeeeees 11

IIIT checnin-siccddnsecimnciscepagunhdeciibsieniatalpapandeiiaiasauianinnnt 14

I. State Efforts to Regulate Emissions of

Climate Change Pollutants Are Threatened

by Claims of Preemption ..................cccceeseeeeees 15

II. States Have Standing to Bring Suits When a

Decision of a Federal Agency, Like the EPA’s

Decision Here, May Preempt Their State

SUN d cuisctinhccninncniiniipbinitiuiaiistedcbbieaeiauemagnidin 20

i

TABLE OF AUTHORITIES

Page

CASES

Alaska v. U.S. Dep’t of Transp., 868 F.2d 441 (D.C.

TUTE, SUITE ciindenisiicbiciedatenesiaunteiaiieliaiedceiabtapielintiametals 14, 21, 23

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

RTS SA ae ee ee eran Neer Oe BP RP oO ace 14, 20

Bethlehem Steel Co. v. New York State Labor

Relations Bd., 330 U.S. 767 (1947) .0.........2.ccccceceeeeeeeeees 18

Bowen v. Public Agencies Opposed to Social Sec.

Entrapment, 477 U.S. 41 (1986).................::.cscesseeeeeeeees 20

Central Valley Chrysler-Plymouth v. California Air

Res. Bd., No. CV-F-02-5017, 2002 U.S. Dist.

LEXIS 20403 (E.D. Cal. June 11, 2002)............00000... 19

City of New York v. F-C.C., 486 U.S. 57 (1988)... 16

Conference of State Bank Supervisors v. Conover,

ee ee re I: GO SD erin ccehentnscnanicisccesiintectoreves 23

Diamond v. Charles, 476 U.S. 54 (1986)..............ccceceeeee ee 21

Engine Mfrs. Ass’n v. South Coast Air Quality

Memt. Dist., 541 U.S. 246 (2004) 0... cece eres 20

English v. General Elec. Co., 496 U.S. 72 (1990).............. 16

Fidelity Federal Sav. and Loan Ass’n v. de la

CR, GEREp Ges TN AE bccncccecencnsciensiiinnnmenvnnsenionite 16, 17

Florida v. Weinberger, 492 F.2d 488 (5th Cir.

Sve cishcoainisicichntineitieiteieittinabidictalidadinladebidibeiiihalig 14, 21, 22, 24

Geier v. American Honda Motor Co., 529 U.S. 861

iI huis: ceallscioed cdi ecetesintehailebidcladsehaliehilagenesdibadilit 13, 16, 17, 18

Hillsborough County v. Automated Med. Labs. Inc.,

ee OI chitisnciiihnsierictiiateiancdeninteenseiaibeigegbetiin 16

Hines v. Davidowitz, 312 U.S. 52 (1941)..................... eee 16

iii

TABLE OF AUTHORITIES — Continued

Page

Louisiana Public Serv. Comm’n v. F-C.C., 476 U.S.

III Dosiesssernsicehssinlctrphindsbdiiceisinichialiasiaili icieiiaindieaa 15, 16, 24

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ... 20, 22

Maine v. Taylor, 477 U.S. 131 (1986)........... ccc ceceeseeeeees 20

Massachusetts v. Environmental Protection Agency,

415 F.3d 50 (D.C. Cir. 2005) .............cessssecsseessessseessseees 8

Matter of Dunn, 988 F.2d 45 (7th Cir. 1993).................0 21

Motor Vehicle Mfrs. Ass’n v. New York State Dep't of

Envtl. Conservation, 17 F.3d 521 (2d Cir. 1994)........... 18

National Ass’n of State Utility Consumer Advocates

v. FC.C., __. F.3d ___, 2006 WL 2105992 (11th

— t ¢ GSA eee cisssiienisaalintanduaes 21

New York v. FE.R.C., 535 U.S. 1 (2002).......... cece eeeeeeee 23

Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766

EE HITE cnciccanarsenindtiedcinssadeniocennssavinesebens 23

Oxygenated Fuels Ass’n v. Davis, 331 F.3d 665 (9th

TnI ssistesiceslliiphcadleniemislesdetbedionidhbovelatbieiatianitaaumdedphonsiveieds 19

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)........... 18

Rumsfeld v. Forum for Academic and Institutional

Rights, Inc., 126 S. Ct. 1297 (2006)..................:sseeeeeseees 25

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)............ 17

Wyoming v. Hoffman, 423 F. Supp. 450 (D. Wyo.

I siihieindelielnidilatnsciteiadaliah ange cali 21

STATUTES.

SEE Ut THIET vibesccbieateliasideicdbiinduiellaiicdbubsiliinhapimnbiniidedoisesh 13, 19

IPS Oe WUE sucisissnincincapcbisniisdinieannenbiiiniiaanedintaieindbtaeien 6, 7,13

iv

TABLE OF AUTHORITIES - Continued

Page

Ge Us PIED venicerincctsdsemisepenitaaiamanat 9, 10, 18, 24

CAL. HEALTH & SAFETY CODE § 43018.5(a) ............cccceeeeeeee 9

REGULATIONS

Cal. Code of Regs. tit. 13, §§ 1900, 1961, 1961.1

GI IED ac nccnscersvssioxstnccnsihsecsesinlisnpissiniaeibinnanesnenianaineanananannnn 9

Conn. Agencies Regs. § 22a-174-36b (2006)..................:005 10

06-096-127 Me. Code R. Rf: eS 10

310 Mass. Code Regs. 7.40 (2006)..............:cccccceeesseeeeeees 10

N.J. Admin. Code § 7:27-29 (2006)..........:ccccssesseeeeenenes —

N.Y. Comp. Codes R. & Regs. tit. 6, § 218-8 (2006) .......... 10

Or. Admin. R. 340-257-0100 (2006)............:ecccccsesceseseesenees 10

25 Pa. Code §§ 126.411-412 (2006).......... eee cece ee eeeeeees 10

R.I. Low Emission Vehicle Program, Air Pollution

Camtrel Tass, DOR. BF CHI O Ge cceccecsscensccsnccqssucsebatdaatiamanionte 10

Vt. Air Pollution Control Regs., Subch. XI and App.

FF CD acescccscccscscescnscodniinnsesessscccmiabhecasinenmaiaiaaanane 10

Wash. Admin. Code 173-423-010 (2006) .....sssssssessesseeeseen 10

REGULATORY DOCUMENTS

Notice of Denial of Petition for Rulemaking, Con-

trol of Emissions From New Highway Vehicles

and Engines, 68 Fed. Reg. 52,922 (Sept. 8, 2003)........... 6

TABLE OF AUTHORITIES -— Continued

COURT DOCUMENTS

Letter from Marc Melnick, Counsel for Petitioner

State of California, to Mark J. Langer, Clerk,

United States Court of Appeals for the D.C. Cir-

cuit (Apr. 4, 2005) ......ccsccsssecseecsessecsseessessecssesssecseesvee

First Amended Compl., Cent. Valley Chrysler-Jeep,

Page

Inc. v. Witherspoon, No. 1:04-cv-06663-REC-LJO .-

5 Seen

Complaint, Ass’n of Int'l Auto. Mfrs. v. Sullivan,

No. 06-69T (D.R.I. Feb. 13, 2006)............cccccccsceeeeeees

Complaint, Green Mountain Chrysler-Plymouth-

Dodge-Jeep v. Torti, No. 2:05-CV-302 (D. Vt. Nov.

BIEN? Scttocinsecasensoctaccatesensentiensavqnesenssoeneneperecssooeneose

OTHER AUTHORITIES

13A Charles A. Wright et al., Federal Practice and

~~ S| & | aa aEEE.

Letter from Catherine Witherspoon, Executive

Officer, CARB, to Stephen L. Johnson, Adminis-

trator of EPA (Dec. 21, 2005), available at

http://www.arb.ca.gov/cc/docs/waiver.pdf. ...............

seusoese 9

aed % ey eS, TIA 6 et 7

~< va. YS pee “ re ue we ae a

= we ’ ‘ : G : : +i" Crh eer

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1

INTEREST OF AMICI CURIAE

Amici are the States of Arizona, lowa, Maryland,

Minnesota, and Wisconsin, ali of which are concerned

about the effects of climate change on their sovereign

interests. In particular, the issue of the proper federal

response to climate change is of great interest and impor-

tance to the Amici States as that response has a signifi-

cant effect on their land, waters, and resources.

Equally important to Amici States is ensuring that

they will have Article III standing to bring suit in federal

court when federal agencies make decisions, such as the

one at issue here, that potentially preempt their state law.

Such decisions injure the States by preventing them from

creating or enforcing their sovereign law, and States

should be able to seek redress for those injuries by chal-

lenging federal administrative decisions in federal court.

For example, Arizona’s interest in this issue is high-

lighted by Arizona Governor Janet Napolitano’s recent

Executive Order, which established a statewide Climate

Change Advisory Group to make recommendations to

reduce emissions associated with climate change in Ari-

zona, “recognizing Arizona’s interests in continued growth,

economic development and energy security.” Ariz. Exec.

Order No. 2005-02, at 1 (2005). The Executive Order

requires the development of a Climate Change Action Plan

because “Arizona and other Western States have particu-

lar concerns about the impacts of climate change and

climate variability on our environment, including the

potential for prolonged drought, severe forest fires, warmer

temperatures, increased snowmelt, reduced snow pack, and

other effects.” Id. at 1. The Advisory Group completed a

statewide emissions inventory which demonstrated that the

2

transportation sector was the leading contributor to

emissions of climate change pollutants. Arizona Climate

Change Advisory Group, Final Arizona Greenhouse Gas

Inventory and Reference Case Projections 1990-2020

(2005). The Advisory Group has recommended to the

Governor various measures, including adoption of the

State Clean Car Program promulgated in California, to

reduce emissions of climate change pollutants. Arizona

Climate Change Advisory Group, Climate Change Action

Plan 68-69 (2006).

In 1996, the State of lowa prepared the Iowa Green-

house Gas Action Plan, including a baseline inventory of

emissions of pollutants associated with climate change for

1990. Iowa Dep't of Nat. Resources, Jowa Greenhouse Gas

Action Plan and Appendix B Inventory of Iowa Greenhouse

Gas Emissions for the Year 1990 (1996). The 1996 Action

Plan recommended several measures to reduce emissions

of those pollutants, including reduction of emissions from

transportation sources. Id. at 34-49. In 2005, lowa Gover-

nor Thomas J. Vilsack issued Executive Order No. 41

which recognized that “a reduction in the use of energy

from fossil fuels will have significant benefits for the

health of Ilowa’s citizens and our environment by reducing

... greenhouse gases.” The Governor’s order required all

state agencies to take several measures to reduce emis-

sions, including reduction of emissions from state-owned

vehicles.

In addition, Iowa is a plaintiff in a public-nuisance

action against the top five carbon dioxide emitters in the

United States. Connecticut v. American Elec. Power Co.,

No. 05-5104 CV (2d Cir.) (appeal pending). In general,

Iowa is concerned with the impacts of climate change

including, for example, increased frequency and duration

3

of summertime heat waves threatening the public health,

reducing crop yields, reducing livestock weight gain and milk

production, and increasing production costs for confinement

animal feeding operations; and increased frequency of

intense summertime rainfall events resulting in crop loss,

property damage, and increased insurance claims.

The State of Maryland has begun to investigate the

impact of global climate change on the Chesapeake Bay, its

tributaries and its shoreline. With over 4,000 miles of coast-

line, Maryland is concerned about the effects of global climate

change on its wetlands, fisheries, birds, pollutant loadings,

and loss of land due to sea level rise. Over thirty percent of

Maryland’s coastline undergoes some degree of erosion, which

is projected to increase due to climate change from one foot

every 100 yrars to two to three feet by 2100. Joint Global

Change Resvurces Institute, Climate Change Impacts: Mary-

land Resources at Risk (2002). Consistent with the findings of

other states, transportation and electrical generation are the

largest sources of climate changing emissions. Maryland

estimates that at least one-third of the state’s carbon dioxide

emissions come from the transportation sector. See Maryland

Greenhouse Gas Emissions Inventory 1990 (2001).

To begin to address these climate change impacts, a

2006 Maryland law, the Healthy Air Act, requires Mary-

land to join the Regional Greenhouse Gas Initiative

(RGGI), an effort by several Northeastern states to reduce

emissions of carbon dioxide from power plants through a

regional cap and trade program. In the event that RGGI is

unsuccessful, the Act requires the compilation of a State

climate action plan as an alternative.

The State of Minnesota has prepared a Climate

Change Action Report, in which it notes that “t]he effects

4

of global climatic change in Minnesota probably will

involve substantial warming, particularly in winter, and

possibly increased precipitation.... It is thought likely

that the incidence of heavy rainfall events will increase,

continuing trends in the U.S. of the past fifty years. This

suggests a possible increase in flooding and, paradoxically,

greater likelihood of drought in summer as more moisture

runs off and less is stored in soils.” Minnesota Pollution

Control Agency, Minnesota Climate Change Action Plan: A

Framework for Climate Change Action 3 (2003). The

Minnesota plan notes that “[t]ransportation and electrical

generation are the largest sources of emissions in Minne-

sota,” accounting for seventy percent of its emissions of

pollutants associated with climate change. Jd. at 4. Minne-

sota’s plan makes several recommendations to reduce

emissions, and, of particular interest here, highlights

programs that reduce emissions from motor vehicles. Jd. at

137.

The State of Wisconsin has a longstanding interest in

the climate-change issue at the heart of this case. See

generally Wisconsin Department of Natural Resources,

Global Issues, at http://www.dnr.state.wi.us/org/aw/air/

global/global.htm. In 1994, the Wisconsin Department of

Natural Resources (WDNR) established a Climate Change

Committee to develop a strategic plan specifying the

actions Wisconsin should take to address climate-change

issues. The WDNR subsequently adopted the Committee’s

proposal, titled “Wisconsin Climate Change Action Plan,”

which is available at http://dnr.wi.gov/org/aw/air/global/

wiccap.pdf. See also WDNR, Warming Trends: What global

climate change could mean for Wisconsin, Wisconsin

Natural Resources Magazine (Apr./May 2000) (supplement

to print publication), available at http://www.wnrmag.com/

5

supps/2000/apr00/global.htm. Wisconsin has inventoried

emissions from pollutants associated with climate change,

see Sara Kerr, WDNR, Bureau of Air Mgmt., Wisconsin's

Greenhouse Gas Emissions, Trends from 1990 to 2000

(2004), available at http://dnr.wi.gov/org/aw/air/global/

global.htm, and commissioned the Wisconsin Greenhouse

Gas Emission Reduction Cost Study, available at

http://dnr.wi.gov/org/aw/air/global/ghgstudy.htm. Wiscon-

sin also created the Wisconsin Voluntary Emission Reduc-

tions Registry Advisory Committee (http://dnr.wi.gov/org/

aw/air/hot/climchgcom), which led to legislation creating

the Wisconsin Voluntary Emission Reduction Registry

(http://dnr.wi.gov/org/aw/air/registry/index.html) under Wis.

Stat. § 285.78 and Wis. Admin. Code ch. 437. Finally, along

with Iowa, Wisconsin is also a plaintiff in the public-

nuisance action against the top five carbon-dioxide emit-

ters in the United States. See Connecticut v. American

Elec. Power Co., No. 05-5104 CV (2d Cir.) (appeal pending).

e

STATEMENT

The Amici States have a unique interest in the federal

response to climate change because that response will

have a significant effect on the impact of climate change

on state resources. In short, there likely will be greater

emissions of climate change pollutants if emissions are

regulated State-by-State rather than by the federal gov-

ernment. As a result, the effects of climate change on each

State’s land, waters, and other assets may well be exacer-

bated.

But the harm caused by the Environmental Protection

Agency’s (EPA’s) decision goes beyond leaving States to

6

their own devices with respect to climate change. The

EPA’s decision further harms States because any attempts

by the States to regulate emissions of climate change

pollutants from motor vehicles — the second largest source

of such emissions — could be and indeed have been chal-

lenged as preempted based on the EPA’s decision.

I. Procedural History

On October 20, 1999, several parties petitioned the

EPA to regulate emissions of certain pollutants associated

with climate change — carbon dioxide (CO,), methane

(CH,), nitrous oxide (NO), and hydrofluorocarbons (HFCs)

— from new motor vehicles and engines under Section 202

of the Clean Air Act (CAA), 42 U.S.C. § 7521 (2006).

Specifically, the petition asserted that the emissions of

these pollutants by motor vehicles “may reasonably be

anticipated to endanger public health or welfare” within

the meaning of Section 202(a)(1) of the CAA because of

their effects on the climate.

On September 8, 2003, the EPA denied the petition. The

agency first asserted that “the CAA does not authorize

regulations to address global climate change.” Notice of

Denial of Petition for Rulemaking, Control of Emissions

From New Highway Vehicles and Engines, 68 Fed. Reg.

52,922, 52,924 (Sept. 8, 2003). In support of its contention,

the EPA claimed that “Congress was well aware of the

global climate change issue when it last comprehensively

amended the CAA in 1990,” id. at 52,926, but it “did not

authorize regulation under the CAA to address global

climate change,” id. at 52,927. Based on its interpretation

of Congress’s actions with respect to the Act as well as

enactments such as the Energy Policy and Conservation

7

Act — which assigns the creation of fuel economy standards

to the Department of Transportation — the EPA concluded

that

Congress sought to develop a foundation for con-

sidering whether future legislative action on

global climate change was warranted and, if so,

what that action should be. From Federal agencies,

it sought recommendations for national policy and

further advances in scientific understanding and

possible technological responses. It did not author-

ize any Federal agency to take any regulatory ac-

tion in response to those recommendations and

advances.

Id. at 52,927.

In addition, the EPA noted that even if it did have

authority to regulate these pollutants under Section 202,

it would not set standards for those pollutants. In support

of its decision not to set standards, the EPA cited several

considerations, including “scientific uncertainties,” id. at

52,930, existing voluntary programs designed to reduce

emissions of pollutants associated with climate change, id.

at 52,931-33, and “important foreign policy considera-

tions,” id. at 52,931. It did not apply the statutory stan-

dard in Section 202(a)(1), which requires the agency to set

standards for emissions from new vehicles or new engines

of those pollutants that “cause, or contribute to, air pollu-

tion which may reasonably be anticipated to endanger

public health or welfare.” 42 U.S.C. § 7521(a)(1).

On a petition for review of the EPA’s decision, Judge

Randolph of the United States Court of Appeals for the

D.C. Circuit, writing the lead opinion for the panel, did not

reach the issue of whether the EPA had authority to

regulate the pollutants associated with climate change.

8

Massachusetts v. Environmental Protection Agency, 415

F.3d 50, 56 n.1 (D.C. Cir. 2005). Instead, he concluded that

the EPA acted properly when declining to issue standards

under Section 202. Jd. at 58.

Judge Sentelle joined in the judgment, but only after

first concluding that the Petitioners had not demonstrated

injury sufficient to establish Article III standing to bring

their challenge. Jd. at 59-60. Judge Sentelle’s view was

that Petitioners “have alleged and shown no harm particu-

larized to themselves,” id. at 60, and therefore did not state

an injury sufficient for Article III purposes. Jd. at 59-60.

_In dissent, Judge Tatel disagreed with both Judge

Sentelle’s assertion that Petitioners had failed to show a

sufficiently particularized injury, id. at 64-66, and Judge

Randolph’s conclusion that the EPA had acted properly in

denying the petition. Judge Tatel explained that, in his

view, the EPA had the authority to regulate emissions of

the pollutants associated with climate change, see id. at

67-74, and its refusal to regulate those emissions was not

based on the statute and therefore was improper, id. at 74-

_ eee

* The argument made in this brief in support of Petitioner States’

standing to bring this suit was presented to the United States Court of

Appeals for the D.C. Circuit in a letter submitted to that court pursuant

to D.C. Circuit Rule 28(j). See Letter from Marc Melnick, Counsel for

Petitioner State of California, to Mark J. Langer, Clerk, United States

Court of Appeals for the D.C. Circuit (Apr. 4, 2005).

9

II. State Efforts to Regulate Motor Vehicle Emis-

sions of Climate Change Pollutants

Under Section 209 of the Clean Air Act, no State

except for California is permitted to set emissions stan-

dards for motor vehicles. See 42 U.S.C. § 7543(a). Califor-

nia may adopt its own standards so long as those

standards are no less protective of public health than

federal standards and it applies for a waiver of preemption

from the EPA. See 42 U.S.C. § 7543(b). One factor the EPA

is to consider in determining whether to grant a waiver is

whether California’s standards are consistent with Section

202(a), the section under which the EPA was asked to act

in this case.

While the matter at issue in this case was pending, in

July 2002, the California legislature passed and its Gover-

nor signed into law Assembly Bill 1493, which has been

codified at Section 43018.5 of the California Health &

Safety Code. That law requires the California Air Re-

sources Board (CARB) to develop “regulations that achieve

the maximum feasible and cost-effective reduction of green-

house gas emissions from motor vehicles.” Cal. Health &

Safety Code § 43018.5(a) (2006). In September 2004, CARB

approved regulations that set limits on the emission of

climate change pollutants from new motor vehicles sold in

California beginning with the 2009 model year. See Cal. Code

of Regs. tit. 13, §§ 1900, 1961, 1961.1 (2005). On December

21, 2005, California requested a waiver from the EPA as

required under Section 209(b). See Letter from Catherine

Witherspoon, Executive Officer, CARB, to Stephen L. John-

son, Administrator of EPA (Dec. 21, 2005), available

10

at http://www.arb.ca.gov/cc/docs/waiver. pdf. To date, the

EPA has not ruled on California’s request.

Section 177 of the Clean Air Act allows other States to

adopt California motor vehicle standards so long as those

standards are identical to California’s. See 42 U.S.C.

§ 7507. After California adopted its emissions standards,

ten States adopted California’s standards: Connecticut,

Maine, Massachusetts, New Jersey, New York, Oregon,

Pennsylvania, Rhode Island, Vermont, and Washington.

See Conn. Agencies Regs. § 22a-174-36b (2006); 06-096-127

Me. Code R. § 127 (2006); 310 Mass. Code Regs. 7.40

(2006); N.J. Admin. Code § 7:27-29 (2006); N.Y. Comp.

Codes R. & Regs. tit. 6, § 218-8 (2006); Or. Admin. R. 340-

257-0100 (2006); 25 Pa. Code §§ 126.411-412 (2006); R.L

Low Emission Vehicle Program, Air Pollution Control Reg.

No. 37 (2006); Vt. Air Pollution Control Regs., Subch. XI

and App. F (2006); Wash. Admin. Code 173-423-010 (2006).

In December 2004, a group of car manufacturers sued

the State of California, arguing that its climate change

emissions regulations were preempted on a variety of

grounds, including the EPA decision at issue in this case.

See First Amended Compl., Cent. Valley Chrysler-Jeep, Inc.

v. Witherspoon, No. 1:04-cv-06663-REC-LJO (E.D. Cal.

Feb. 16, 2005), 9 9(b), 47-51, 122-23.* Section 209(b), the

California exemption provision, requires that any standard

adopted by California be “consistent with” Section 202(a). 42

U.S.C. § 7543(b). Because the “EPA authoritatively concluded

_.. [that] carbon dioxide is not a ‘pollutant’ under [S]ection

* All complaints referenced in these brief are available from the

Public Access to Court Electronic Records (PACER) service. See

http://pacer.psc.uscourts.gov/.

11

202(a) and cannot be regulated under [SJection 202(a),”

plaintiffs maintain that California cannot adopt standards

that regulate carbon dioxide emissions, which would be

inconsistent with the EPA’s interpretation of Section 202

in the decision under review here. Jd. at J 51.

Similar lawsuits have been filed in two States that

adopted the California standards, Rhode Island and

Vermont, and they too include claims of preemption based

on the EPA’s decision. See Compl., Ass’n of Int’l Auto. Mfrs.

v. Sullivan, No. 1:06-cv-00069-T-LDA (D.R.I. Feb. 13,

2006); Compl., Green Mountain Chrysler-Plymouth-Dodge-

Jeep v. Torti, No. 2:05-CV-302 (D. Vt. Nov. 18, 2005). In the

Vermont action, plaintiffs have asserted that the “authori-

tative determination by EPA [at issue here] precludes any

State from adopting any new motor vehicle emissions

standards for” pollutants associated with climate change.

See Compl., Green Mountain Chrysler-Plymouth-Dodge-

Jeep v. Torti, J 105. The Rhode Island complaint, taking a

somewhat different tack, asserts that the California

regulations do not satisfy the statutory requirements for

the exception to preemption because, among other things,

carbon dioxide “is not ‘an air pollutant’ subject to regula-

tion under Section 202(a) of the CAA” given the EPA’s

decision and therefore the California regulations are “not

‘consistent with [S]ection 202(a)’ of the CAA.” Compl.,

Ass’n of Int'l Auto. Mfrs., J 47; see id. | 27.

¢

SUMMARY OF ARGUMENT

Petitioners have asked this Court to determine

whether the EPA acted properly in denying a rulemaking

petition to regulate carbon dioxide and other pollutants

12

associated with climate change under Section 202 of the

CAA. Specifically, Petitioners contend that the EPA im-

properly concluded that it was without authority to regu--

late motor vehicle emissions of climate change pollutants,

and that the EPA exceeded its statutory authority under

Section 202 by considering factors outside those permitted

under the statutory mandates. They have asked this Court

to reverse the judgment of the Court of Appeals so that the

agency can consider the issues based on the proper statu-

tory factors. }

For the reasons provided by Petitioners, the Amici

States agree that the EPA acted improperly in concluding

that it was without authority to regulate emissions of

climate change pollutants from motor vehicles, and that

the EPA failed to properly consider the statutory factors in

making its decision. Before reaching those merits issues,

however, Amici States urge the Court not to be diverted

from the questions presented in this case by concerns over

Petitioners’ standing since Petitioner States have standing

to bring this suit for at least two rezsons.

First, as Judge Tatel concluded below, see 415 F.3d at

64-66, the Petitioner States are likely to suffer and incur

the costs of several effects of climate change, which in-

clude everything from loss of unique state lands and

unique sources and bodies of water within each State, to

particular damages resulting from weather-related disas-

ters that each State is likely to suffer. See Br. of Petrs. at

5-6 (“effects include ... inundation of an appreciable

portion of coastal States’ territory; damage to publicly

owned coastal facilities and infrastructure; additional

emergency response costs caused by more frequent and

intense storm surges and floods; and shrinking water

13

supplies due to reduced snowpack” (footnotes omitted)).

The EPA’s decision not to regulate motor vehicle emissions

of pollutants associated with climate change exacerbates

the damages to each State resulting from climate change

because, even if not preempted from taking action, States

are, at best, only able to regulate the limited number of

emissions sources within their borders. The EPA’s author-

ity to regulate nationwide would provide for more effective

regulation of emission sources, which would in turn likely

lessen the States’ losses.

The second ground on which to find standing, which is

the central focus of this brief, is that Petitioner States are

harmed by the EPA’s decision because it intrudes on their

sovereignty by subjecting them to claims that they are

prevented from regulating motor vehicle emissions as the

CAA permits. States have a sovereign interest when the

federal government limits their ability to create and

enforce their own laws. Although the federal government

has the “undoubted power” to trump state law in many

instances, Geier v. American Honda Motor Co., 529 U.S.

861, 887 (2000) (Stevens, J., dissenting), the CAA reflects

a respect for state sovereignty with regard to motor vehicle

emissions standards. In particular, Section 209 allows

California to set its own motor vehicle emissions stan-

dards so long as those standards are at least as protective

as federal standards and are, among other things, consis-

tent with Section 202(a) of the CAA. 42 U.S.C. § 7521(a).

In addition, Section 177 allows other States to adopt

standards identical to California’s. 42 U.S.C. § 7507.

California has adopted motor vehicle standards

limiting emissions of climate change pollutants, and other

States have adopted those standards as the CAA allows. In

several pending cases, however, plaintiffs have asserted

14

that those standards are preempted by the EPA's decision.

In particular, plaintiffs claim that if the EPA is without

authority to regulate emissions of pollutants associated

with climate change from motor vehicles, California

likewise cannot regulate them. The EPA’s decision there-

fore has and will continue to lead to the concrete claims of

preemption against States with respect to their efforts to

deal with emissions related to climate change, and those

concrete claims threaten the States’ ability to create and

enforce their own law. If this Court were to reverse the

judgment of the Court of Appeals — as requested by Peti-

tioners — the EPA’s decision would no longer have any

preemptive effect. Accordingly, the Court should conclude

that the Petitioner States have standing to bring this suit.

¢

ARGUMENT

“States have an interest, as sovereigns, in exercising

‘the power to create and enforce a legal code.’” Alaska v.

U.S. Dep't of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989)

(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458

U.S. 592, 601 (1982)). When an administrative agency

makes a decision that has the potential to preempt state

law, States affected by that decision have the requisite

Article III interest and injury for the purposes of deter-

mining standing. See id.; Florida v. Weinberger, 492 F.2d

488, 494 (5th Cir. 1974).

The Petitioner States have standing to bring this

action because the EPA’s decision not to regulate carbon

dioxide and other pollutants associated with climate

change under Section 202 has led to actual claims that

California and the States that adopt California’s standards

15

are precluded from doing so. Although Amici States do not

believe that the underlying agency decision in this case

preempts California’s or any other State’s ability to regu-

late motor vehicle emissions of carbon dioxide and other

pollutants contributing to climate change, the injury that

results from the claims is clear and distinct. Because these

colorable claims of preemption interfere with the States’

ability to create and enforce their own law, the injury to

the States is actual and concrete, not fanciful, hypotheti-

cal, speculative, or conjectural.”

I. State Efforts to Regulate Emissions of Cli-

mate Change Pollutants Are Threatened by

Claims of Preemption

State law can be preempted by federal regulations and

other administrative decisions just as it can be preempted

by federal statutes. See Louisiana Public Serv. Comm'n v.

F-C.C., 476 U.S. 355, 369 (1986) (“Pre-emption may result

not only from action taken by Congress itself; a federal

* The plaintiffs in the California suit claim that California’s

regulations are also preempted by the federal fuel economy program,

reflected in the corporate average fuel economy (CAFE) standards. See

First Amended Compl., Cent. Valley Chrysler-Jeep, Inc. v. Witherspoon,

No. 1:04-cv-06663-REC-LJO (E.D. Cal. Feb. 16, 2005), J] 112-18. But

the fact that there may be other bases on which to claim that the

California standards are preempted does not change the injury suffered

by the States as a result of the EPA’s decision, or the fact that those

injuries will be redressed by a decision invalidating the EPA's action. If

plaintiffs are correct with respect to the CAFE standards, the Califor-

nia standards would be preempted only to the extent that they imper-

missibly interfere with the CAFE standards. The preemption analysis

of that claim is quite different from, and may have different results

than, the analysis of the claim that California cannot set any motor

vehicle emissions standards for climate change pollutants whatsoever

as a result of the EPA's decision in this case.

16

agency acting within the scope of its congressionally

delegated authority may pre-empt state regulation.”);

Hillsborough County v. Automated Med. Labs., Inc., 471

U.S. 707, 713 (1985) (“We have held repeatedly that state

laws can be’ pre-empted by federal regulations as well as

by federal statutes.”); Fidelity Fed. Sav. and Loan Ass'n v.

de la Cuesta, 458 U.S. 141, 153 (1982) (“Federal regula-

tions have no less pre-emptive effect than federal stat-

utes.”).

In general, federal administrative decisions might

preempt state law in one of two ways. First, an agency

may preempt state and local law by explicitly stating its

intent to preempt in its decision. But “a federal agency

may pre-empt state law only when and if it is acting

within the scope of its congressionally delegated authority

... [because] an agency literally has no power to act, let

alone pre-empt the validly enacted legislation of a sover-

eign State, unless and until Congress confers power upon

it.” Louisiana Public Serv. Comm’n v. F-C.C., 476 US. at

374. In other words, in order to preempt, the agency

cannot simply say it is so; Congress must expressly give

the agency the authority to do so. See City of New York v.

F-C.C., 486 U.S. 57, 66-68 (1988).

An administrative decision might also preempt even

where the agency has not explicitly stated its intent to do

so, but only if the agency decision was within the authority

granted to it by Congress and either it is “impossible for a

private party to comply with both state and federal re-

quirements,” English v. Gen. Elec. Co., 496 U.S. 72, 79

(1990), or it stands “as an obstacle to the accomplishment

and execution of” important federal objectives, Hines v.

Davidowitz, 312 U.S. 52, 67 (1941). For example, in Geier v.

American Honda Motor Co., 529 U.S. 861 (2000), an individual

17

was injured when his car collided with a tree. Consistent

with the applicable safety regulation issued by the De-

partment of Transportation, the car was not equipped with

airbags or any other passive restraints. Jd. at 865. The

individual nevertheless brought a state tort claim against

the car manufacturer claiming that the car was negli-

gently and defectively designed because it was not

equipped with a driver’s side airbag. Jd.

The Court concluded that the safety regulation prom-

ulgated by the Department of Transportation preempted

the common law action that would have imposed a duty on

the manufacturer to install an airbag because “the stan-

dard deliberately provided the manufacturer with a range

of choices among different passive restraint devices,” id. at

875, and that range of choices would have been upset by a

state-imposed requirement that the manufacturer must

install an airbag, id. at 881. This was true, the Court held,

notwithstanding the fact that the safety standard said

nothing about preemption. See id. at 892 (Stevens, J.,

dissenting); see also Fidelity Fed. Sav. and Loan Ass’n v.

de la Cuesta, 458 U.S. at 156 (concluding that a regulation

promulgated by the Federal Home Loan Bank Board,

which permitted federally chartered savings and loan

associations to exercise the due-on-sale clause of a mort-

gage, preempted the application of a contrary state doc-

trine).

It is also possible for an agency decision not to act to

preempt state law. Sprietsma v. Mercury Marine, 537 U.S.

51, 66 (2002) (the Court has “recognized that ‘a federal

decision to forgo regulation in a given area may imply an

authoritative federal determination that the area is best

left unregulated, and in that event would have as much

pre-emptive force as a decision to regulate’”) (quoting Ark.

18

Elec. Coop. Corp. v. Ark. Pub. Serv. Comm’n, 461 U.S. 375,

384 (1983)); Bethlehem Steel Co. v. N.Y. State Labor

Relations Bd., 330 U.S. 767, 774 (1947) (state law is pre-

empted “where failure of the federal officials affirmatively

to exercise their full authority takes on the character of a

ruling that no such regulation is appropriate or approved

pursuant to the policy of the statute”). Relying on this

principle, in Ray v. Atlantic Richfield Company, 435 U.S.

151, 178 (1978), the Court concluded that the agency's

decision not to “promulgate a ban on the operations of oil

tankers in excess of 125,000 [dead weight tons)” was the

equivalent of ruling that no such regulation is appropriate,

and thus the Washington state law that incorporated such

a ban was preempted.

Like the decision in Geier, the EPA’s decision in this

case does not explicitly-state its intent to preempt. And

like Ray, the EPA’s decision is effectively one to do noth-

ing. It might therefore preempt the States’ efforts to

regulate climate change pollutants. In order to fully

understand this potential conflict, however, we turn to the

motor vehicle emissions provisions of the CAA.

In contrast to stationary sources, the CAA expressly

preempts a State’s authority to regulate emissions from

certain mobile sources. In particular, Section 209(a) of the

CAA prohibits States from regulating emissions from new

motor vehicles. See 42 U.S.C. § 7543(a). Not all state

regulation in this area is foreclosed, however, Section

209(b)(1) allows eligible States to apply for a waiver from

federal preemption. See 42 U.S.C. § 7543(b)(1). As the only

State eligible for such a waiver, California is the lone State

with authority to regulate motor vehicle emissions. See

Motor Vehicle Mfrs. Ass’n v. N.Y. State Dep't of Envtl. Conser-

vation, 17 F.3d 521, 525-26 (2d Cir. 1994) (explaining in

19

detail the history of the CAA amendments and describing

California’s authority).

Other States, however, may “piggyback” onto Califor-

nia’s exemption by adopting emissions standards identical

to those implemented by California. See 42 U.S.C. § 7507;

see also Motor Vehicle Mfrs. Ass’n, 17 F.3d at 525. Under

this framework, California is effectively the gateway to the

States’ ability to adopt standards different from the

federal standards for motor vehicle emissions. In this case,

therefore, because the EPA has refused to regulate emis-

sions of pollutants associated with climate change from

motor vehicles, California’s standards are the only ones

available to the States that desire to regulate such emis-

sions."

Notwithstanding California’s explicit exception to

preemption under Section 209(b), the possibility of pre-

emption remains, as California’s history in the area of

motor vehicle regulation amply demonstrates. Indeed,

California’s attempts to regulate motor vehicle emissions

or motor fuels have come under fire in several preemption

challenges with mixed results. See, e.g., Oxygenated Fuels

Ass’n v. Davis, 331 F.3d 665 (9th Cir. 2003) (challenging

California ban on methy] tertiary-butyl ether (MTBE) as a

fuel additive; Cent. Valley Chrysler-Plymouth v. Cal. Air

Resources Bd., No. CV-F-02-5017, 2002 U.S. Dist. LEXIS

* This should not be understood to foreclose the possibility that the

EPA's determination that the regulation of emissions of climate change

pollutants are beyond the scope of its authority under the Clean Air Act

might also place such regulation beyond the scope of the Section 209

prohibition. In that event, the States may not be preempted under that

section from taking action with respect to emissions of climate change

pollutants. -

20

20403 (E.D. Cal. June 11, 2002) (granting preliminary

injunction regarding California zero emissions vehicle

quota regulations). In particular, the scope of the Section

209(a) prohibition has served as a successful basis for

challenging at least one recent attempt to address mobile

source emissions. In Engine Manufacturers Association v.

South Coast Air Quality Management District, 541 U.S.

246, 252 (2004), this Court recently held that certain local

regulations governing the purchase or lease of various

vehicle fleets were preempted under Section 209(a). As is

evident in these cases, resolving preemption challenges is

not as clear cut as it might appear at first blush.

II. States Have Standing to Bring Suits When a

Decision of a Federal Agency, Like the EPA’s

Decision Here, May Preempt Their State Law

In order to have standing to bring suit in federal

court, a plaintiff must show that she has been injured,

that her injury is traceable to the conduct of the defen-

dant, and that a favorable decision will likely redress her

injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992).

“(S]tates have standing to protect proprietary and

sovereign interests.” 13A Charles A. Wright et al., Federal

Practice and Procedure, § 3531.11 (2006). Indeed, courts

have long recognized that a State has standing to sue

when it alleges an interest in preserving its sovereignty

and that interest has been interfered with or diminished.

See, e.g., Bowen v. Pub. Agencies Opposed to Soc. Sec.

Entrapment, 477 U.S. 41, 51 n.17 (1986). One such sover-

eign interest is “the power to create and enforce a legal

code.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

at 601; see also Maine v. Taylor, 477 U.S. 131, 137 (1986);

21

Diamond v. Charles, 476 U.S. 54, 65 (1986); cf. Matter of

Dunn, 988 F.2d 45, 47 (7th Cir. 1993) (State had standing

to appeal judgment holding one of its statutes preempted

even if no other party seeks review).

In cases like this one, when administrative decisions

have the potential to preempt state law and thus interfere

with the State’s interest in creating and enforcing its own

legal code, States are injured, and it is the administrative

decision that causes that injury. See Alaska v. U.S. Dep't of

Transp., 868 F.2d 441, 443 (D.C. Cir. 1989); Florida v.

Weinberger, 492 F.2d 488, 494 (5th Cir. 1974). Moreover, if

struck down, the administrative decision would have no

preemptive effect, and thus a favorable decision by a court

to grant a petition for review of that decision would re-

dress the State’s injury. See Natl Ass’n of State Utility

Consumer Advocates v. F-C.C., Nos. 05-11682, 05-12601,

___ F.3d __, 2006 WL 2105992 (11th Cir. July 31, 2006)

(concluding that regulations exceeded the authority

delegated to the agency by statute and therefore did not

preempt state law); Wyoming v. Hoffman, 423 F. Supp.

450, 453 (D. Wyo. 1976) (“[Pjrior to the adoption of the

challenged regulations the individual states controlled

dredge and fill activities in those waters which now

require Section 404 permits but which were not subject to

traditional navigational servitudes. The federal govern-

ment, as a result of the regulations, now assumes this

authority. If a final determination finds the regulations

are invalid, the State would regain its authority to regu-

late these activities. The State thus has a stake in the

outcome which can only be decided by a determination as

sought in the complaint.”).

One central issue is determining when an agency

decision presents a sufficient question of preemption for

22

the purposes of serving as an “injury in fact” under the

Article III analysis. The injury, as the Court noted in

Lujan, must be “concrete and particularized” as well as

“actual or imminent, not conjectural or hypothetical.” 504

U.S. at 560.

On the one hand, it appears to be clear that a State

could not rely on a frivolous or fanciful claim of potential

preemption in order to claim injury. On the other hand, a

State need not show preemption conclusively in order for

an agency decision to give rise to a claim of injury. Rather,

without disagreement, the circuit courts have long held

that colorable claims of preemption are sufficient to serve

as the basis for a State’s Article III injury.

For example, in Florida v. Weinberger, the Secretary

of the United States Department of Health, Education and

Welfare promulgated a regulation regarding “what sort of

a state licensing board for nursing home administrators

will qualify for the Medicaid program. The major revision

of the original definition alters it so that a board contain-

ing a majority of nursing home administrators will no

longer pass muster.” 492 F.2d at 490. Florida challenged

the regulation, asserting that the Department was without

statutory authority to pass such a regulation. Id. at 491.

Florida claimed that it had standing to bring such a

challenge because Florida’s own law permitted a board

containing a majority of nursing home administrators. Id.

at 490. The court agreed with Florida and concluded that

the State had standing because “[t]here is nothing abstract

about this disagreement, and the Secretary has set a

collision course with Florida law in a formal and final

regulation which is backed by grave sanctions and which

demands, if valid, immediate compliance.” Jd. at 492.

23

Likewise, in Alaska v. U.S. Department of Transporta-

tion, 868 F.2d at 443, twenty-seven States challenged

advertising regulations promulgated by the Department of

Transportation on the ground that the Administrative

Procedure Act required that notice and comment proce-

dures be employed when the regulations were promul-

gated, and the Department had failed to follow those

procedures. When the Department questioned the States’

standing to bring the action, the court concluded that the

States had standing because the agency “claim[ed] that its

rules preempt state consumer protection statutes.” 868

F.2d at 443. It did not matter that the Department claimed

that none of the States’ laws would in fact prohibit what

the contested regulation permitted. See id. Because the

States had pointed to colorable claims of preemption based

on the Department’s decision, the States had standing to

seek review. Id. at 444; see also Ohio ex rel. Celebrezze v. U.S.

Dep't of Transp., 766 F.2d 228, 232-33 (6th Cir. 1985) (con-

cluding that Ohio had standing to seek judicial review of a

federal regulation which claimed to expressly invalidate an

Ohio state statute); cf Conference of State Bank Supervi-

sors v. Conover, 710 F.2d 878, 880 n.3 (D.C. Cir. 1983)

(concluding that state government officials had standing to

challenge regulation that preempted inconsistent state

law).

Although this Court has never commented on this

issue directly, it has on several occasions reached the

merits of States’ challenges to potentially preemptive

agency decisions without noting any obstacle to the States’

standing to bring such actions. This is true regardless of

the ultimate outcome of the State’s challenge. See, e.g.,

New York v. FE.R.C., 535 U.S. 1 (2002) (States challenged

FERC order preempting local and state law regarding

24

unbundled retail transmissions; Court found for FERC);

Louisiana Public Serv. Comm’n v. F-C.C., 476 U.S. 355

(1986) (States sought review of FCC order that claimed to

preempt state law; Court decided in favor of States). As

such, the circuit court cases finding standing on the basis

of colorable preemption claims are in accord with this

Court’s precedent.

In this case, just as in the Weinberger case, there is

“nothing abstract,” 492 F.2d at 492, about the injury to the

States’ sovereign interests resulting from the preemption

claims asserted against them. As explained above, a claim

of preemption based on the EPA’s decision has already

been asserted against the California standards. Likewise,

the plaintiffs in cases filed against Rhode Island and

Vermont assert preemption claims of those States’ adop-

tion of the California standards solely based on the EPA's

decision. Accordingly, the injury here is not fanciful,

hypothetical, or conjectural; it is concrete and actual.

Moreover, the preemption claims in these instances

are colorable, not frivolous. Plaintiffs have asserted that

Section 209(b) itself does not allow for an exception to

preemption because the California’s standards are not

“consistent with” Section 202. See 42 U.S.C. § 7543(b)(1(C).

That is. plaintiffs claim that, the standards are not consis-

tent with the EPA’s decision under Section 202 that it is

without authority to regulate emissions of climate change

pollutants from motor vehicles. Although the Amici and

Petitioner States disagree with the plaintiffs’ interpreta-

tion of the relevant statutory provisions, and neither the

Petitioner States nor the Amici States believe that the

EPA’s decision in this case preempts their efforts, the

claims of preemption are not without legal basis.

25

Given these colorable and concrete preemption claims,

there can be no doubt that Petitioners California, Ver-

mont, and Rhode Island have suffered actual injury

sufficient to give them standing. In addition, the EPA's

decision is the cause of their injury, and the injury will be

redressed if this Court grants Petitioners’ request to

reverse the judgment of the Court of Appeals because the

EPA’s decision would no longer have any preemptive effect.

Accordingly, because the same relief is sought by all

Petitioners and at least three Petitioners have standing to

bring this suit, the Article III requirements have been

satisfied. See Rumsfeld v. Forum for Academic and Institu-

tional Rights, Inc., 126 S. Ct. 1297, 1303 n.2 (2006) (noting

that “the presence of one party with standing is sufficient

to satisfy Article III’s case-or-controversy requirement”

and citing lower court’s reliance on Bowsher v. Synar, 478

U.S. 714, 721 (1986)).

26

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals concluding that the State Petitioners have stand-

ing under Article III to bring this suit should be affirmed

and, for the reasons provided by Petitioners, the judgment

of the Court of Appeals should be reversed.

Respectfully submitted,

Amy J. WILDERMUTH* TERRY GODDARD

UNIVERSITY OF UTAH Attorney General of Arizona

S.J. QUINNEY COLLEGE PAULA S. BICKETT

OF LAW ; Chief Counsel, Civil Appeals

332 South 1400 East, JOSEPH P. MIKITISH

Room 101 Assistant Attorney General

Salt Lake City, UT 84112 1275 West Washington Street

(801) 581-6833 Phoenix, AZ 85007

(602) 364-3319

SANNE H. KNUDSEN

FAEGRE & BENSON, LLP Counsel for Amicus Curiae

2200 Wells Fargo Center *

Siuhivnhina “=a

Minneapolis, MN 55402

(612) 766-7000 ”

[Additional Counsel Listed On Inside Cover]