Amicus Curiae Brief — Massachusetts v. EPA

4 , FILED

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3424

No. 05-1120 ae ie

Cees =RK

IN THE ct emai me on

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Writ or CERTIORARI TO THE

Unitep States Court oF APPEALS FOR THE

District oF CotumBia Circuit

—_—_

ae

BRIEF OF ASPEN SKIING COMPANY

AMICUS CURIAE IN SUPPORT OF PETITIONERS

EpwarbD T. RAMEY

Counsel of Record

BLAIN D. Myure ~

ISAACSON ROSENBAUM PC.

ba 633 17th Street, Suite 2200

Denver, Colorado 80202

(303) 292-5656

Counsel for Amicus Curiae

203166 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ ii

INTEREST OF AMICUS CURIAE .............. l

SUMMARY OF THE ARGUMENT ............ 2

IIE hh C ei haa a ee rt 2

il

TABLE OF CITEDAUTHORITIES

Page

Rules:

Supreme Court Rule 37.6 ............. aw cee l

Statutes:

2 MS: eer ree ote 2

SCD HEED nis ecnadsearabucduacaenvs 3

Other Authorities:

Aspen Global Change Institute, Climate Change and

Aspen: An Assessment of Impacts and Potential

Responses, (2006), pp. 75-78; available at http://

www.agci.org/aspenStudy.html (last visited Aug.

se eee ikeebubakssdukeeneendeekas 5, 6

Colorado College State of the Rockies Project, The

- 2006 Colorado College State of the Rockies

Report Card, Hecox, W., Hurlbutt, B., O’ Brady,

C., ed., April 2006, pp. 89-102, available at http:/

/www.coloradocollege.edu/stateoftherockies/

06ReportCard.html (last visited Aug. 23, 2006)

Colorado Ski Country USA, Economic Impact Study,

OD ox. ptce0 64 ante ame 0seen te we bn l

iil

Cited Authorities

Intergovernmental Panel on Climate Change,

“Climate Change 2001: Impacts, Adaptation, and

Vulnerability” (2001), available at http://

www.grida.no/climate/ipcc_tar/wg2/index.html

(last visited Aug. 23, 2006) .................

National Assessment Synthesis Team, U.S. Global

Change Research Program, U.S. Dept. of the

Interior, Climate Change Impacts on the United

States: The Potential Consequences of Climate

Variability and Change, (2000); available at http:/

/www.usgcerp.gov/usgerp/Library/

nationalassessment/overviewwater.htm

(last visited Aug. 23, 2006) .................

Page

l

INTEREST OF AMICUS CURIAE'

The Aspen Skiing Company (“ASC”) is the owner and

operator of four major destination ski and winter recreation

complexes located in the central Rocky Mountain region of

Colorado, spanning over 5,200 acres of skiable terrain on

four mountains — Aspen Mountain, Snowmass, Aspen

Highlands, and Buttermilk Mountain. In conjunction with

its mountain operations, ASC also owns and operates two

hotels and fifteen restaurants. ASC is a major contributor to

the economy of Pitkin County and surrounding areas of

central Colorado, generating over a million skier visits

annually from around the world and employing

approximately 800 persons year-round and over 3,400

employees during the winter season.

ASC is part of the larger Colorado ski and winter

recreation economy, which generates well over $2 billion in

revenues annually from mountain operations and associated

businesses in surrounding communities. With well in excess

of ten million skier visits annually (almost 60% coming from

out-of-state and international locations), the Colorado

ski resorts collectively employ nearly 31,000 people —

approximately 14% of the total tourism-related jobs in

Colorado and 8% of all employment in the state.

1. Pursuant to Supreme Court Rule 37.6, Amicus states that its

designated counsel authored this brief in whole, and that no person

or entity other than this Amicus Curiae made a monetary contribution

to the preparation or submission of this brief. The parties’ consent,

other than the Solicitor General, to the filing of this amicus curiae

brief has been lodged with the Clerk of the Court. The consent of

the Solicitor General is being lodged herewith.

2. The data in this paragraph was provided by Colorado Ski

Country USA, Economic Impact Study, March 2004.

2

As an industry highly dependent upon a high alpine

ecosystem — ASC’s mountain elevations ranging from a low

of 7,870 feet above sea level at the base of Buttermilk

Mountain to a high of 12,510 feet at the summit of Snowmass

— and an ample seasonal snowpack, ASC’s operations, and

the Colorado winter recreation economy in general, are

obviously extremely vulnerable to the adverse impacts of

climate change. As explained below, ASC is already

experiencing these impacts, and the prognosis under

“business-as-usual” scenarios that fail to address air

pollutants associated with climate change is bleak. For this

reason, ASC supports the position of the Petitioners in this

case.

SUMMARY OF THE ARGUMENT

The Administrator of the Environmental Protection

Agency has the authority to regulate carbon dioxide and other

air pollutants associated with climate change under

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

§ 7521(a)(1). The air pollutants in question “may reasonably

be anticipated to endanger public health or welfare” through

their climatological impact upon the viability of an entire

recreational industry and associated economies.

ARGUMENT

Section 202(a\(1) of the Clean Air Act (the “Act”),

42 U.S.C. § 7521(a)(1), directs the Administrator of the

Environmental Protection Agency to prescribe by regulation

“standards applicable to the emission of any air pollutant

from any class or classes of new motor vehicles or new motor

vehicle engines, which in his judgment cause, or contribute

to, air pollution which may reasonably be anticipated to

endanger public health or welfare.”

3

Congress has specified that “all language referring to

effects on welfare” in the Act “includes, but is not limited

to, effects on . . . weather, .. . climate, . . . as well as effects

on economic values....” 42 U.S.C. § 7602(h) (section

302(h) of the Act).

To the degree that air pollutants may cause or contribute

to a climate change resulting in temperature increases in

alpine environments, in Colorado and elsewhere, it is

indisputable that the ski and winter mountain recreation

industry will be impacted. With this impact will come

derivative impacts upon the economies of associated

communities and regions of the country.

A recent report from Colorado College’ presents a

downscaled climate model run on a regional scale for the.

eight-state Rocky Mountain region‘ derived from two

different global general circulation climate models predicting

the impact of climate change pollutants — the Parallel Climate

Model (PCM) and Hadley Centre Climate Model (HadCM3).

The former (more conservative) model predicts annual

temperature increases across the region of 3 degrees Celsius

to 5 degrees Celsius between 1976 and 2085, while the latter

(mid-range) model predicts annual temperature increases over

the same period of 5 degrees Celsius to 7 degrees Celsius.‘

3. The Colorado College State of the Rockies Project, The 2006

Colorado College State of the Rockies Report Card, Hecox, W.,

Hurlbutt, B., O’ Brady, C., ed., April 2006, pp. 89-102, available at

http://www.coloradocollege.edu/stateoftherockies/

06ReportCard.htmil (last visited Aug. 23, 2006) (hereinafter 2

4. Idaho, Montana, Wyoming, Colorado, New Mexico, Arizona,

Utah, and Nevada.

5. CC, n. 3, supra, at 92. a

4

Running the mid-range HadCM3 mode! for two different

emission scenarios — denominated “business-as-usual” and

“reduced-emissions” — included in a 2001 report by the

Intergovernmental Panel on Climate Change (IPCC),° the

Colorado College report predicts temperature increases

across most of the Rocky Mountains of 5 to 7 degrees Celsius

under the “business-as-usual” scenario compared with 3 to

4 degrees Celsius under the “reduced-emissions” scenario.’

The increase in winter temperatures under these scenarios is

predicted to be 3 to 6 degrees and | to 5 degrees Celsius

respectively.*

While the differentials recited above may not seem great

at first blush, the Colorado College report predicts that the

increase in winter temperatures “may cause several! melting

periods during the winter, and will have a great impact on

the snowpack of the Rocky Mountain region.” This will

cause the snowline to recede to higher elevations"® and likely

shorten the operational season for winter recreation resorts. ''

ASC’s Chief Executive Officer states in the Colorado College

report that a compression of a few dozen days in the ski

season under current conditions would render the resort

——E —_

6. IPCC, “Climate Change 2001: Impacts, Adaptation, and

Vulnerability” (2001), available at Attp://www.grida.no/climate/

ipcc_tar/wg2/index.html (last visited Aug. 23, 2006).

7. CC, n.3, supra, at 93.

8. Id.

9. Id. at 94.

10. Id.

11. Jd. at 99.

5

unprofitable, resulting in “an economic disaster.”'? The

Colorado College report concludes that winter recreation

resorts like Aspen could potentially become “unviable” by

the year 2050."

The predictions presented in the Colorado College report

are echoed by the U.S. Global Change Research Program:

“Snowpack is very likely to decrease as the climate warms,

despite increasing precipitation, for two reasons. It is very

likely that more precipitation will fall as rain, and that

snowpack will develop later and melt earlier.”'* While

snowmaking may provide a hedge to some degree, it is both

expensive and a potentially heavy drain upon available water

resources.'* Early and late season mountain operations

“are especially sensitive to temperature,”'* resulting in the

“compression” of the operating season noted above. While

operating and economic predictions vary, it is likely even

under optimistic analyses that a week will be shorn off the

12. Id.

13. Id.

14. National Assessment Synthesis Team, U.S. Global Change

Research Program, U.S. Dept. of the Interior, Climate Change

Impacts on the United States: The Potential Consequences of Climate

Variability and Change, (2000); available at http://www. usgcrp.gov/

usgcrp/Library/nationalassessment/overviewwater. htm (last visited

Aug. 23, 2006). a

15. Aspen Global Change Institute, Climate Change and Aspen:

An Assessment of Impacts and Potential Responses, (2006), pp. 75-

78; available at hitp://www.agci.org/aspenStudy.himl (last visited

Aug. 23, 2006).

16. Jd. at 78.

6

season by 2030, and anywhere from four to over nine weeks

by the year 2100 under current climate change projections."’

The economic consequences even by 2030 could range

from $16 million to $56 million in personal income."*

The economic impact would likely be exacerbated by

volatility, i.e., step-like climate changes and clumps of bad

years.'? By 2100, the Aspen Global Change Institute

concludes that “it seems doubtful that assured, high-quality,

destination skiing can be maintained as Aspen’s winter raison

d'etre,” with even summer resort prospects less than clear.”°

And Aspen (and ASC) are deemed to be in a much stronger

position economically and geographically to withstand and

adapt to the impact of climate change than most other winter

recreation areas in the country.”

While one may debate, to some degree, the severity of

the prognosis for the winter recreation industry and its

associated and dependent communities, the effects of climate

change are already being experienced at Aspen and elsewhere.

Over the past twenty-five years, Aspen has watched its total

precipitation decrease by 6 percent, with snowfall decreasing

by 16 percent (17 percent above 10,600 feet). Average

temperatures have already increased by about 3 degrees

—— ms

17. Id. at 80.

18. dd.

19. Id. at 80-81.

20. /d. at 81.

21. /d. at 73-74.

22. Id. at xv.

7

Fahrenheit (1.5 degrees Celsius) over the same period and

frost-free days have increased approximately 20 days per

year.’ The prognoses are in line with the historical trends.

The impact of climate change is current, and well underway.

The present effects of climate change upon the alpine

winter recreation industry — and businesses like ASC and

the communities of which they are an integral part — are very

real. The future, particularly under “business-as-usual”

scenarios, appears anywhere from difficult to economically

disastrous depending upon the predictive model employed.

To the degree that air pollutants cause or contribute to climate

change, it is respectfully submitted that it is well within the

authority of the Administrator to regulate them.

CONCLUSION

For the foregoing reasons, ASC supports the position of

the Petitioners and requests that the judgment of the United

States Court of Appeals for the District of Columbia Circuit

be reversed.

Respectfully submitted,

Epwarpb T. RAMEY

Counsel of Record

Biain D. Myure

ISAACSON ROSENBAUM P.C.

633 17th Street, Suite 2200

Denver, Colorado 80202

(303) 292-5656

Counsel for Amicus Curiae

23. Id.