Amicus Curiae Brief — Massachusetts v. EPA

4106 34 eet a

No. 05-1120 OCT 24 2006

In The

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, et ai.,

Petitioners,

- Ve

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

¢

BRIEF AMICI CURIAE OF ROBERT H. BORK,

RONALD A. CASS, DOUGLAS W. KMIEC,

RONALD D. ROTUNDA, AND JOHN YOO

IN SUPPORT OF RESPONDENT UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

o

DAVID B. RIVKIN, JR.

Counsel of Record

LEE A. CASEY

DARIN R. BARTRAM ,

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, NW

Washington, D.C. 20036

(202) 861-1731

——- ee SCO —_—-—- -—— _

—_— i ee — — eee we a ae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALi. COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ..........::scccssssssscsseeesseees 1

SUMMARY OF ARGUMENT. ..................ccsessccseccesessseees 3

TE ciiteibbhiinisninbintininsicitinntsininaminnpeneinsitiinitetinn 4

is Fa siaiterenccticniceeeninenichiiepsctneisncernimacnnitaie 4

II. Petitioners Lack Article III Standing ................ 10

A. Petitioners’ “Injury” is Speculative ............. 11

B. Petitioners Fail to Show Causation ............ 13

C. Petitioners Fail to Show Redressability...... 18

a cttiitinrninidosintedemibiaienpsnsseesenenetmmntconin 26

TABLE OF AUTHORITIES

Page

CASES |

Allen v. Wright, 468 U.S. 737 (1984).........::ccccceeeeees passim

Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995)................. 24

Bennett v. Spear, 520 U.S. 154 (1997) ..........cccecsceceeeees 24, 25

Connecticut, et al. v. American Electric Power Co.,

SNE AE EEIET ES sicnencieunniectsemnansibiiapinnadinddiilnaniteiiiiitenemnmandaptiniveiegi i)

Connecticut v. American Electric Power Co., 406

eG: Ss SEE UI is i anscceniegvcinnctnsbencnnentaieniina 10

DaimlerChrysler Corp. v. Cuno, _. U.S. _., 126

a SP EN ienccisehiiestininineibeiblibadidnbiianinpitmasiiaions 11, 18, 19

Flast v. Cohen, 392 U.S. 83 (1968)..............ssscccsssssssssreeees 10

Linda R.S. v. Richard D., 410 U.S. 614 (1973)................. 22

Los Angeles v. Lyons, 461 U.S. 95 (1983)............:0:c0000 12,13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....21, 22

Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005)....11, 12

Sierra Club v. Morton, 405 U.S. 727 (1972) ...........cececeeeee 21

Simon v. Eastern Kentucky Welfare Rights Organi-

matians,, GED Vb. BB GO cessttnscsccscenesssevsvenscesesi 16, 19, 20

Steel Co. v. Citizens for a Better Environment, 523

BG SEN tt caiccsnesbediinsaniintsisundicibesisindéatdicnemendies 11,18

Valley Forge Christian College v. Americans Unitea

for Separation of Church and State, 454 U.S. 464

il

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Appropriations Act, 2002, Pub. L. No. 107-73, tit.

Bei, RE eae, GE), GES CD cccconcccccvecscncssesetsesesssnnsecenese 8

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Appropriations Act, 2001, Pub. L. No. 106-377,

app. A, tit. III, 114 Stat. 1441, 1441A-41 (2000)............. 8

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Appropriations Act, 2000, Pub. L. No. 106-74, tit.

ITI, 113 Stat. 1047, 1080 (1900) .......00...ccccccccresessssssecceseee 8

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Appropriations Act, 1999, Pub. L. No. 105-276,

ii Feige I, BOI GID wrnconeccccnepneninnticonasinevesnancsnsee 8

The Energy Policy Act of 1992, Pub. L. No. 102-486,

tit. XVI, §§ 1601-05, 106 Stat. 2776, 2999-3008............. 5

The Global Change Research Act of 1990, Pub. L.

is ts GE le Ge iadcnnnicnesencipenciinietaiantiaighimnééconses 5

The Global Climate Protection Act of 1987, Pub. L.

No. 100-204, tit. XI, §§ 1103, 101 Stat. 1407,

National Climate Program Act of 1978, Pub. L. No.

es er Rs GUI crisecknniiesssisecnecsniitnacningsininimnatiaiies 5, 25

iv

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS AND TREATIES

Control of Emissions from New Highway Vehicles

and Engines, 68 Fed. Reg. 52,922, 52,928 (Aug. 8,

SIDED srctncnspincsccancccnnsiipniianinictilisiamiasiaiiandaatia passim

United Nations Framework Convention on Climate

Change (“UNFCCC”), June 12, 1992, S. Treaty

Doc. No. 102-38, 1771 U.N.T-S. 107............:cccccsccssssees 6,7

MISCELLANEGUS

California Attorney General Press Release, Attor-

ney General Lockyer Files Lawsuit Against “Big

Six” Automakers for Global Warming Damages

in California (Sept. 20, 2006), available at http://

ag.ca.gov/newsalerts/release.php?7id=1338 ...............00 10

John R. Justus & Susan R. Fletcher, Congressional

Research Service, CRS Issue Brief for Congress:

Global Climate Change (Aug. 11, 2006), available at

http//fpc.state.gov/documents/organization/73983.pdf......... 7

Office of the Press Secretary, White House Fact

Sheet: President Bush and the Asia-Pacific Part-

nership on Clean Development (July 27, 2005),

available at http//www.state.gov/g/oes/rls/fs/503 14. ,

TENT ne emery RE Ee

S. Res. 98, 105th Cong. (1997) ....csccccsseccsesessesessessnee-tueeenves ~

Statement of the President, June 11, 2001, avail-

able at http://www.whitehouse.gov/news/releases/

200 1/06/20010611-2.Frtiml 2.0.0... eee cesseceeeeeeenneeenenenenes 6, 8

“Don’t despair: Most of the news on the climate

change front is bad, but not all of it,” The Econo-

suied. Das, Wi, SOE. sh ci: tenisilidiiliiaiabiiinnaes 23

1

INTEREST OF AMICI CURIAE'

Amici are, or have been, law professors specializing in

constitutional law, international law or administrative

law. Each has a personal and professional interest in the

status and development of the law in these areas, and

particularly in maintenance of the proper role of the

federal courts in our constitutional system. In this regard,

amici believe that the questions raised by this case now

before the Court are of the highest importance, and that

the Court’s consideration of this matter would benefit from

their views. The individual qualifications of amici are as

follows:

Robert H. Bork is currently a Distinguished Fellow at

the Hudson Institute, Washington D.C. He received his

B.A. and his J.D. from the University of Chicago. Judge

Bork was the Alexander M. Bickel Professor of Public Law

at the Yale Law School from 1962 to 1981. He also has

served as Solicitor General of the United States (1973-

1977) the acting U.S. Attorney General (1973-1974) and

judge, United States Court of Appeals for the District of

Columbia Circuit (1982-1988).

Ronald A. Cass is the Dean Emeritus of Boston

University School of Law, where he served as Dean from

1990-2004, the Chairman of the Center for the Rule of

Law, and the co-Chair of the American Bar Association

International Law Section, Intellectual Property Commit-

tee. An expert on intellectual property, antitrust, and

* Pursuant to Rules 37.3(a) and 37.6, the undersigned state the

parties have consented to the filing of this brief, that no counsel for any

party authored this brief in whole or in part, and that no person or

entity other than the amici and their counsel made a monetary

contribution to the preparation or submission of this brief.

2

administrative law, Dean Cass has previously served as a

Chairman of the American Bar Association Administrative

Law Section, and as a professor at the University of

Virginia and Boston University. He has a B.A. from the

University of Virginia and a J.D. from the University of

Chicago.

Douglas W. Kmiec is the Chair and Professor of

Constitutional Law at Pepperdine University. He received

his B.A. from Northwestern University and his J.D. from

University of Southern California. Professor Kmiec has

served as Head of the Office of Legal Counsel at the U.S.

Department of Justice,,as the Dean and St. Thomas More

Professor of Law at The Catholic University of America,

and as Professor of Law and the director of the University

of Notre Dame’s Center on Law and Government.

Ronald D. Rotunda is the George Mason University

Foundation Professor of Law at the George Mason Univer-

sity School of Law. In the 1990s, he was the Constitutional

Law Adviser to the Supreme National Council of Cambo-

dia, helping draft that nation’s first democratic constitu-

tion, and a consultant on constitutions and judicial codes

to various emerging democracies in Eastern Europe.

Professor Rotunda was the assistant majority Counsel for

the Watergate Committee and, most recently, the Special

Counsel to the General Counsel of the Department of

Defense. He has co-authored several major works on

constitutional law and legal ethics. Professor Rotunda has

a B.A. and J.D. from Harvard University. .

John Yoo is Professor of Law at the University of

California, Berkeley School of Law — Boalt Hall. He earned

his B.A. from Harvard University and his J.D. from Yale

3

University Law School. He has served as General Counsel

to the U.S. Senate Judiciary Committee and as a Deputy

Assistant Attorney General in the Office of Legal Counsel

at the U.S. Department of Justice, where he was active in

issues involving foreign affairs, national security and the

separation of powers.

The views expressed herein are those of the individual

amici, and do not necessarily represent the views of any

group or organization with which any of them may be

affiliated.

¢

SUMMARY OF ARGUMENT

This case raises fundamental questions about the

Judiciary’ proper role in our constitutional scheme of

government. It is, in fact, part of a multi-faceted effort to

draw the federal courts into one of the most important and

controversial foreign policy and political battles of our

time — the issue of global climate change. To their credit,

Petitioners have made no attempt to conceal this objective.

As claimed in the original petition for rulemaking submit-

ted to EPA in 1999: “the Administrator has a mandatory

duty to regulate greenhouse gas emissions from new motor

vehicles under § 202(a)(1) of the CAA. Petitioners urge the

Administrator to reduce the effects of global warming by

regulating the emission of greenhouse gases from new

motor vehicles.” Petition for Rulemaking and Collateral

Relief Seeking the Regulation of Greenhouse Gas Emis-

sions From New Motor Vehicles under § 202 of the Clean

Air Act (Oct. 20, 1999), J.A. 5, 15 (emphasis added).

Global climate change is a highly complex phenome-

non which, if Petitioners’ claims regarding the scope and

4

seriousness of the problem are correct, can only be solved

by a worldwide consensus in support of a worldwide

solution. The United States’ contribution to that solution

must come as a result of actions taken by the political

branches of government. Under our Constitution, the

federal courts have a limited jurisdiction that is far more

restrained than that which would support the relief the

Petitioners seek. Indeed, even assuming that Petitioners

have identified a sufficiently concrete and individualized

injury resulting from global climate change, they have

neither shown that EPA’s failure to regulate emissions of

“greenhouse gases,” such as carbon dioxide, from new ~

motor vehicles sold in the United States caused that harm,

nor have they demonstrated how requiring such regulation

would be likely to redress it. As a result, Petitioners do not

have Article III standing to pursue this case.

+

ARGUMENT

I. Introduction

Global climate change is, of course, a complex political

and scientific issue of enormous importance to the United

States and the entire community of nations. As EPA

explained in denying the petition for rulemaking in this

case, climate change “has been discussed extensively

during the last three Presidential campaigns; it is the

subject of debate and negotiation in several international

bodies; and numerous bills have been introduced in

Congress over the last 15 years to address the issue.”

Control of Emissions from New Highway Vehicles and

5

Engines, 68 Fed. Reg. 52,922, 52,928 (Sept. 8, 2003), Pet.

App. A-78.’

The relief Petitioners seek would, in fact, directly

contravene current United States policy and could

* Congress has, in fact, taken a determined, if cautious, approach

to global climate change for nearly thirty years - beginning with the

Nationa) Climate Program Act of 1978, Pub. L. No. 95-367, 92 Stat. 601

(1978). This law required the establishment of a National Climate

Program to “assist the Nation and the world to understand and respond

to natural and man-induced climate processes and their implications,”

§ 3, 92 Stat. at 601. The Global Climate Protection Act of 1987, Pub. L.

No. 100-204, tit. XI, $§ 1103, 101 Stat. 1407, 1408-09 (1987), directed

the Secretary of State to coordinate U.S. global climate change diplo-

macy. The Global Climate Protection Act also directed EPA to develop

and propose to Congress a coordinated national policy on the issue.

§ 1104, 101 Stat. at 1409. The Global Change Research Act of 1990,

Pub. L. No. 101-606, 104 Stat. 3096 (1990), established a Committee on

Earth and Environmental Sciences to coordinate a ten-year research

program, § 102, 104 Stat. at 3097, directed the President to establish a

U.S. Global Change Research Program to “improve understanding of

global change,” § 103, id. at 3098, and provided for scientific assess-

ments that “analyze[] current trends in global change” every four

years, § 106, id. at 3101. This law also advised the President to direct

the Secretary of State to “initiate discussions with other nations leading

toward international protocols and other agreements to coordinate

global change research activities,” and “the development of energy

technologies which have minimally adverse effects on the environ-

ment,” § 203, id., at 3102-03. The Energy Policy Act of 1992, Pub. L. No.

102-486, tit. XVI, §§ 1601-05, 106 Stat. 2776, 2999-3008 (1992), also

required the Secretary of Energy to conduct several assessments

relating to greenhouse gases and report to Congress. In particular,

section 1604 called for a report of a “comparative assessment of

alternative policy mechanisms for reducing the generation of green-

house gases,” § 1604, 106 Stat. at 3002. The alternative policy mecha-

nisms to be assessed included: (1) “caps for the generation” of such

gases from “major sources and emissions trading programs”, (2)

“Federal standards for energy efficiency for major sources,” including

“power plants, industrial processes, automobile fuel economy, appli-

ances, and buildings”; and (3) “[vjarious Federal and voluntary incen-

tives programs.” Jd.

6

severely undermine the President’s ability to achieve U:S.

climate change policy goals at the international level.

While some of the amici on this brief would question

whether it is responsible policy for the United States to

defer unilateral] initiative on this issue, it is the policy

choice of the politically accountable branches of our

government to seek a comprehensive climate change

solution and not to pursue the individualized approach

Petitioners demand. President Bush made this position

clear in 2001: “/e]ven with the best science, even with the

best technology, we all know that the United States cannot

solve this global problem alone.... [O)ur approach must

be based on global participation, including that of develop-

ing countries whose net greenhouse gas emissions now

exceed those in the developed countries.” Statement of the

President, June 11, 201, available at http://www.white-

house.gov/news/releases/2001/06/20010611-2.html, [here-

inafter “Presidential Statement of June 11, 2001”).

This policy is, in fact, currently embodied in the

United Nations Framework Convention on Climate

Change (“UNFCCC”), June 12, 1992, S. Treaty Doc. No.

102-38, 1771 U.N.T.S. 107, which established an interna-

tional framework to address global climate change. The

States Parties to the UNFCCC have agreed to

“fflormulate, implement, publish and regularly update

national and, where appropriate, regional programmes

containing measures to mitigate climate change by ad-

dressing anthropogenic emissions by sources and removals

by sinks of all greenhouse gases not controlled by the

Montreal Protocol, and measures to facilitate adequate

7

adaptation to climate change.” UNFCCC, supra, art. 4,

§ 1(b).’

Since the UNFCCC came into force in 1994, annual

“conferences of the parties” (“COP”) have been held for the

purpose of continuing multilateral climate change negotia-

tions. See John R. Justus & Susan R. Fletcher, Congres-

sional Research Service, CRS Issue Brief for Congress:

Global Climate Change, 12 (Aug. 11, 2006), available at

http://fpc.state.gov/documents/organization/73983. pdf.

These meetings have proven to be highly contentious

and have highlighted the very deep differences in ap-

proach to the climate change issue that separate the

United States from a number of its European allies. See

id. at 13-17. These differences involve the very type of

“remedy” Petitioners seek in this case: mandatory limita-

tions on American greenhouse gas emissions without

regard to other important aspects of a comprehensive

climate change strategy, including more efficient energy

technologies, carbon sequestration projects, and signifi-

cant greenhouse gas emissions reduction commitments

from the developing world. See id.

The UNFCCC did not impose binding emissions

reductions requirements - although this was a “central

issue” in the negotiations surrounding that agreement. 68

Fed. Reg. at 52,926, Pet. App. A-70. Mandatory limitations

are contemplated by the UNFCCC’s “Kyoto Protocol,”

which the United States has resolutely refused to ratify. It

* In addition, pursuant to Articles 4 and 12 of the UNFCCC, the

United States is committed to submit an annual national emissions

inventory to the UNFCCC’s secretariat. /d. arts. 4, 12.

8

has not ratified that agreement largely because the Presi-

dent perceives the Kyoto Protocol as not providing for a

general global climate change solution that includes the

developing countries. See Presidential Statement of June

11, supra.’ Indeed, in the months leading up to the Kyoto

meeting in 1997, the Senate passed (by a vote of 95-0) S.

Res, 98, rejecting any agreement that did not require

emissions limitations by developing countries. S. Res. 98,

105th Cong. (1997); see also 68 Fed. Reg. at 52,927, Pet.

App. A-75. From 1998 through 2002, Congress specifically

prohibited EPA from implementing the Kyoto Protocol

without Senate approval of the treaty.’ It stopped enacting

such legislation only after President Bush announced that

the United States would not ratify the Kyoto Protocol. See

Pub. L. No. 107-73, tit. III, 115 Stat. 651, 683 (2002) (for

fiscal year 2002).

Thus, the critical tenet of U.S. climate change policy is

that this challenge can be met only by a truly global

‘ AJthough President Clinton signed the Kyoto Protocol on

November 12, 1998, he did not seek the Senate’s advice and consent to

ratification — “out of concern that the Senate would reject the treaty” in

light of its controversial imposition of carbon dioxide emissions

limitation requirements on the United States but not on developing

nations. 68 Fed. Reg. at 52,927, Pet. App. A-75.

* See Departments of Veterans Affairs and Housing and Urban

Development, and Independent Agencies Appropriations Act, 1999, Pub.

L. No. 105-276, tit. ITI, 112 Stat. 2461, 2496 (1998) (appropriating funds

to EPA on the condition that “none of the funds appropriated by this Act

shali be used to propose or issue rules, regulations, decrees or orders for

the purpose of implementation, or in_preparation for implementation, of

the Kyoto Protocol”); Pub. L. No. 106-74, tit. IT], 113 Stat. 1047, 1080

(1999) (placing identical conditions on appropriations for fiscal year

2000); Pub. L. No. 106-377, app. A, tit. ITI, 114 Stat. 1441, 1441A-41

(2000) (for fiscal year 2001). See also 68 Fed. Reg. at 52,927-28, Pet.

App. A-72 - A-78.

9

response which includes developing countries and takes

full account of the need for new technologies and carbon

sequestration efforts.’ Since 2001, U.S. diplomats have

worked toward that end, both at annual COP meetings

and in bilateral negotiations. In July, 2005, moreover,

President Bush announced formation of the Asia-Pacific

Partnership on Clean Development and Climate - an

agreement including China, India and South Korea - all

major greenhouse gas emitters excused from making

reductions under the Kyoto Protocol. The other partici-

pants in the Partnership are the United States, Australia

and Japan. See Office of the Press Secretary, White House

Fact Sheet: President Bush and the Asia-Pacific Partner-

ship on Clean Development (July 27, 2005), available at

http://www.state.gov/g/oes/rls/fs/50314.htm.

Petitioners seek to remake U.S. climate change policy

through litigation in the federal courts. Indeed, many of

the Petitioners are currently involved in a case before the

United States. Court of Appeals for the Second Circuit,

Connecticut, et al. v. American Elec. Power Co., No. 05-

5104 (oral argument heard June 7, 2006), in which they

are trying to impose mandatory greenhouse gas emissions

limitations on stationary sources through the use of a

“public nuisance” claim.’ The District Court properly

* The Administration's overall position has been described by EPA

as a “comprehensive approach to global climate change that calls for

near-term voluntary actions and incentives along with programs aimed

at reducing scientific uncertainties and encouraging technological

development so that the government may effectively and efficiently

address the climate change issue over the long term.” 68 Fed. Reg. at

52,930, Pet. App. A-82.

” Similarly, the State of California, also a Petitioner in the instant

case, recently filed suit against six American and Japanese automobile

manufacturers in the United States District Court for the Northern

(Continued on following page)

10

dismissed this suit as nonjusticiable. See Connecticut v.

American Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y.

2005). Indeed, there are good constitutional reasons why

courts in general, and especially the Court in this particu-

lar case, should steer clear of the global climate change

melee.

Il. Petitioners Lack Article III Standing.

Petitioners do not meet the minimum standing re-

quirements the Constitution demands of anyone who

wants an issue — however important or pressing — resolved

by the federal judiciary. These are not prudential barriers;

they arise from Article III’s limitation of the federal

judicial power to “Cases” and “Controversies.” As this

Court has made clear many times; “Art. III limit[s] the

federal judicial power ‘to those disputes which confine

federal courts to a role consistent with a system of sepa-

rated powers and which are traditionally thought to be

capable of resolution through the judicial process.’” Valley

Forge Christian College v. Americans United for Separa-

tion of Church and State, 454 U.S. 464, 472 (1982) (quot-

ing Flast v. Cohen, 392 U.S.-83, 97 (1968)).

Standing, the Court has cautioned, is not “merely a

troublesome hurdle to be overcome if possible so as to

reach the ‘merits’ of a lawsuit which a party desires to

have adjudicated; it is a part of the basic charter promul-

gated by the Framers of the Constitution at Philadelphia

District of California, basing another “public nuisance” claim on the

alleged effects of “global warming.” See California Attorney General

Press Release, Attorney General Lockyer Files Lawsuit Against “Big

Six” Automakers for Global Warming Damages in California (Sept. 20,

2006), available at http://ag.ca.gov/newsalerts/release. php7id=1338.

11

in 1787.” Valley Forge, 454 U.S. at 476. Standing is also, of

course, an aspect of jurisdiction of which the Court must

satisfy itself before proceeding. DaimlerChrysler Corp. v.

Cuno, __ US. _, 126 S. Ct. 1854, 1860 (2006). As the

parties “invoking federal] jurisdiction|,]” Petitioners “bear| }

the burden of establishing its existence.” Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 104 (1998).

A. Petitioners’ “Injury” is Speculative.

To establish standing, Petitioners must show that

they have suffered an actual, legally cognizable injury

because of the defendant’s actions, and that this injury

will likely be remedied by a favorable judicial decision. See

Allen v. Wright, 468 U.S. 737, 751 (1984) (“A plaintiff must

allege personal injury fairly traceable to the defendant’s

allegedly unlawful conduct and likely to be redressed by

the requested relief.”). Petitioners have not made this

showing. As Judge Sentelle explained in his dissenting

and concurring opinion below, in seeking a judicial remedy

for global climate change, Petitioners have raised only

general grievances based on an alleged injury that — if

severe — is shared by humanity as a whole:

Even in the light most favorable to the petition-

ers, in the end [their claims] come down to this:

Emission of certain gases that the EPA is not

regulating may cause an increase in the tem-

perature of the earth - a phenomenon known as

“global warming.” This is harmful to humanity at

large. Petitioners are or represent segments of

humanity at large.

Massachusetts v. EPA, 415 F.3d 50, 60 (D.C. Cir. 2005)

(Sentelle, J. dissenting and concurring), Pet. App. A-18.

12

Moreover, although Judge Tatel below concluded that

Massachusetts had at least shown a particularized injury

— “loss of land within its sovereign boundaries” because of

rising sea levels, id. at 65 — this injury, like the many

others Petitioners claim, is entirely speculative. Even if

sea levels continue rising, Massachusetts’ alleged injury is

contingent upon certain assumptions about the likely

economic and social consequences of having more of its

existing territory below sea level.’ Indeed, all of Petition-

ers’ claimed injuries are dependent upon predictions and

projections about how the Earth’s climate has and will

react to warming temperatures.”

Although these are the very types of predictions and

assumptions that policymakers must often act upon, they

are not sufficient to establish a legally cognizable injury.

As the Court explained in Los Angeles v. Lyons, 461 U.S.

95, 102 (1983), “[a]bstract injury is not enough. The

plaintiff must show that he ‘has sustained or is immedi-

ately in danger of sustaining some direct injury’... and

the injury or threat of injury must be both ‘real and

* States, of course, have many and varied interests — but it is

unclear what legal! principle would give them a judicially protectable

interest in simply maintaining the status quo, or otherwise being

insulated from change regardless of any actual damage that change

may cause.

* Thus, for example, an increase in localized flooding (noted by one

of Petitioners’ Declarants as a likely result of global warming, see

MacCracken Decl. 9 25, J.A. at 235) may, or may not, result in any

tangible damage to Pciitioners. This will depend entirely upon the

severity and location of the actual events, when and if they occur. State

governments, moreover, are not responsible for the costs of any and all

damage occurring within their borders. Any loss to Massachusetts (or

other states) here depends upon the assumption that state property

itself will be affected, or that states will choose to take upon themselves

some or all of the costs that may be incurred by others.

13

immediate,’ not ‘conjectural’ or ‘hypothetical.’” In that

case, the Court denied standing because the plaintiff —

who sought an injunction against the use of “chokeholds”

by the local police — could only establish injury based on a

series of assumptions about his conduct and that of others.

Lyons, 461 U.S. at 105-06. The same is true in this case.

B. Petitioners Fail to Show Causation.

Petitioners also must show that the legally cognizable

injury of which they complain was actually caused by the

agency action they challenge. Petitioners have not made

this critical showing. Indeed, based on Petitioners’ own

evidence, the causes of their alleged injuries began before

the United States was founded as an independent nation

and have involved human activities (i.e., the “Industrial

Revolution”) that have been taking place on a global scale

for more than two centuries.

Thus, for example, Dr. MacCracken’s explanation of

“the strong consensus of opinion among qualified scientific

experts” can be summarized as follows: (1) Greenhouse gas

concentrations have been increasing since 1750 because of

human activity and are “very likely the dominant cause” of

a warming climate during the 20th century; (2) “The most

probable scenarios of future greenhouse gas emissions

indicate that, in the absence of policy change, atmospheric

concentrations of greenhouse gases will continue to rise

steadily”; (3) Global warming has already had important

environmental impacts, including warming oceans and

melting glaciers that contribute to rising sea levels; and

(4) the additional environmental impacts of “projected

global warming” will include additional rises in sea level

as well as “severe and irreversible changes to important

14

natural ecosystems.” MacCracken Declaration, J.A. at 224-

25, 229.

All of this may or may not be true, but it does not

support the conclusion that EPA’s failure to regulate

greenhouse gas emissions from new motor vehicles sold in

the United States has caused the problem. Here, the

declarant simply claims that “[alchievable reductions in

emissions of CO, and other greenhouse gases from U.S.

motor vehicles would significantly reduce the build-up in

atmospheric concentrations of these gases and delay and

moderate any of the adverse impacts of global warming,”

that the “U.S. transportation sector (mainly automobiles)”

is responsible for “about 7% of global fossil fuel emissions,”

and that “emission reductions must be initiated in the

near future in order to significantly reduce and delay the

impacts of global warming.” Jd. at 225-26, 238-39.

Only through a series of additional assumptions about

the importance of greenhouse gas emissions from new motor

vehicles in the United States to the overall global climate

change phenomenon — which Petitioners themselves argue

can be traced to events beginning more than a century before

motor vehicles were sold in the United States — could the

Court match the injuries claimed by Petitioners to the

agency action challenged in this suit. This, however, would

be exactly the type of rank speculation the Court has held to

be impermissible in determining standing.

In this connection, Allen .v. Wright is especially in-

structive. In that case, the Court denied standing because

of the speculative nature of plaintiffs’ chain of causation

and redressability claims. The injury plaintiffs asserted

was “their children’s diminished ability to receive an

education in a racially integrated school.” Allen, 469 U.S.

15

at 756. It resulted, they claimed, from IRS rules that failed

to “detect false certifications of nondiscrimination policies”

at private schools. Jd. at 745. More rigorous standards,

plaintiffs evidently believed, would have led to the denial

of nonprofit tax status to additional sub silencio segre-

gated private schools, reducing the number of such institu-

tions in otherwise desegregating public school districts,

and thus improving their children’s chances of a desegre-

gated education.

Although the Court fully acknowledged that the injury

identified by plaintiffs was “one of the most serious inju-

ries recognized in our legal system,” it concluded that that

injury was not “fairly traceable” to the challenged agency

action. Jd. at 756-57. It reasoned that “|t)he line of causa-

tion between that conduct [an effective grant of tax exempt

status to some racially discriminatory schools] and deseg-

regation of respondents’ schools is attenuated at best.” Jd.

at 757. The Court went on to explain that the chain of

causation requirement would be met only if “there were

enough racially discriminatory private schools receiving

tax exemptions in respondents’ communities for with-

drawal of those exemptions to make an appreciable differ-

ence in public school integration,” and if this result was

not further dependent upon the independent decisions to

be made by private school administrators and parents if

the exemptions were withdrawn. Allen, 468 U.S. at 758.

Thus, if the United States were, in the future, to

commit to reducing overall carbon emissions by, for exam-

ple, 200 million metric tons per year, and, as a result of

this Court’s decision, EPA ultimately passed regulations

that achieve reductions on the order of 20 million metric

tons, there is no reason why those reductions would not be

credited against the overall 200 million metric tons goal.

16

At best, a Court order could shape where future reductions

come from — mobile sources versus stationary sources ~

rather than shaping the overall amount of future reduc-

tions. Petitioners’ alleged harm would be entirely depend-

ent on a decision by the political branches of government

to mandate emissions reductions from new motor vehicles

that are cumulative to, not a replacement for, reductions

from other emissions sources. As in Allen, this independ-

ent decision by other branches of government interrupts

the chain of causation linking EPA’s denial of the rulemak-

ing petition to the allegations of harm to Petitioners’

interests.

The Court found a chain of causation to be similarly

speculative, and hence unacceptable for standing pur-

poses, in Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976). There, a number of

indigents claimed that their access to non-emergency

hospital services was effectively limited by federal rules

allowing nonprofit hospitals which limited their treatment

of indigents to emergency room care to enjoy tax status as

charities. The Court rejected the suit on standing grounds

because the injury complained of — fewer indigent hospital

services — was not fairly traceable to the challenged tax

rules. It reasoned that “[ijt is purely speculative whether

the denials of service specified in the complaint fairly can

be traced to petitioners’ ‘encouragement’ or instead result

from decisions made by the hospitals without regard to the

tax implications.” Simon, 426 U.S. at 42-43.

The same can be said for any connection between

Petitioners’ “injuries” and EPA’s denial of the rulemaking

petition in the instant case. To establish the necessary

causation here, Petitioners would have to show that EPA’s

failure to regulate new motor vehicle greenhouse gas

17

emissions in the United States resulted in the climatologi-

cal changes they predict will bring about the environ-

mental harm they fear. Because human activities have

been contributing greenhouse gas emissions to the atmos-

phere since 1750 (and actually for millennia if the use of

wood, peat, and coal for fuel — all sources of carbon dioxide

emissions — is taken into account), it is impossible for

Petitioners to make this showing.

Assuming that the lack of United States regulation of

new motor vehicle emissions has caused Petitioners’

alleged injury would be far more speculative than conclud-

ing that IRS tax policies were responsible for the existence

of too many secretly discriminatory private schools, or

hospital decisions to limit indigent services. Indeed, it may

well be that anthropogenic greenhouse gas emissions

sufficient to cause the global warming trends at the base

of Petitioners’ injury claims had already been added to the

atmosphere by the time the automobile was invented in

the late 19th century.

Moreover, the actual damage Petitioners claim may be

caused by entirely different phenomena. Thus, for exam-

ple, Professor Kirshen — upon whose declaration Judge

Tatel relied below — notes that

In addition te these factors related to global

warming, in the Boston area, land subsidence

also contributes significantly to sea level rise.

Over the past century, approximately 15 cm (5.9

inches) of the rise in sea level that has occurred

in Boston is attributable to land subsidence. This

rise in sea level due to subsidence would be ex-

pected in the next century in the Boston area re-

gardless of, and in addition to, the projected rise

in sea level due to climate change.

18

Decl. of Paul H. Kirshen, 9 6 (attached). (This issue was

also noted by Dr. MacCracken. See MacCracken Decl.,

supra { 23, J.A. at 234.) Petitioners have not shown how

they would establish that the land losses Massachusetts

fears would result from rising sea levels were caused by

anthropogenic induced climate change, itself caused by

EPA’s failure to regulate greenhouse gas emissions from

new motor vehicles sold in the United States, rather than

from natural or manmade subsidence or other phenomena,

including the state’s own regulatory policies (or lack

thereof). Petitioners must be able to show in a “concretely

demonstrable way,” that the challenged agency action has

directly or indirectly caused the harm of which they

complain. To state that it might be one of several causes is

insufficient to satisfy the causation element of standing.

Warth v. Seldin, 422 U.S. 490, 503 (1975).

C. Petitioners Fail to Show Redressability.

Finally, to meet their burden of establishing Article

Ill standing, Petitioners must show how the ultimate

relief they seek - an order requiring EPA to regulate

greenhouse gas emissions from new motor vehicles in the

United States - will remedy their particular injuries. As

the Court cautioned in Steel Co., “[rjelief that does not

remedy the injury suffered cannot bootstrap a plaintiff

into federal court; that is the very essence of the redress-

ability requirement.” 523 U.S. at 107. Given the nature

and scope of the global climate change problem, it is

entirely speculative whether such an order would benefit

Petitioners in any way.

The Court most recently addressed the redressability

requirement in Cuno, 126 S. Ct. at 1854. In that case, a

19

group of Toledo, Ohio, taxpayers sought federal court

intervention against various local tax credits designed to

benefit manufacturers. The Court rejected this claim to

“taxpayer” standing both because plaintiffs failed to show

how they were “injured” in any manner different from all

other taxpayers and because “[e|stablishing injury re-

quires speculating that elected officials will increase a

taxpayer-plaintiff’s tax bill to make up a deficit; establish-

ing redressability requires speculating that abolishing the

challenged credit will redound to the benefit of the tax-

payer because legislators will pass along the supposed

increased revenue in the form of tax reductions. Neither

sort of speculation suffices to support standing.” Jd. at

1862-63. The Court also denied plaintiffs the benefit of an

exception to the general rule against taxpayer standing for

the same reasons. It noted that:

Any effect that enjoining DaimlerChrysler’s [tax]

credit will have on municipal funds ... will not

result from automatic operation of a statutory

formula, but from a hypothesis that the state

government will choose to direct the supposed

revenue from the restored franchise to munici-

palities. This is precisely the sort of conjecture

we may not entertain in assessing standing.

Id. at 1866.

This conclusion is consistent with a long line of this

Court’s precedents. Redressability was critical to its

decisions in the Allen and Simon cases. In Allen, the Court

ruled that plaintiffs’ assumption that a denial of the

challenged tax exemptions would cause there to be a

larger number of integrated schools was too speculative:

(I]t is entirely speculative, as respondents them-

selves conceded in the Court of Appeals, whether

20

withdrawal of a tax exemption from any particu-

lar school would lead the school to change its

policies. It is just as speculative whether any

given parent of a child attending such a private

school would decide to transfer the child to public

school as a result of any changes in educational

or financial policy made by the private school

once it was threatened with loss of tax-exempt

status. It is also pure speculation whether, in a

particular community, a large enough number of

the numerous relevant school officials and par-

ents would reach decisions that collectively

would have a significant impact on the racial

composition of the public schools.

Allen, 468 U.S. at 758 [citations omitted]. Similarly, in

Simon, the Court ruled that plaintiffs lacked standing

because

[i]t is purely speculative whether the denials of

service specified in the complaint fairly can be

traced to [the IRS’) “encouragement” or instead

result from decisions made by the hospitals

without regard to the tax implication. It is

equally speculative whether the desired exercise

of the court’s remedial power in this suit would

result in the availability to respondents of such

services. So far as the complaint sheds light, it is

just as plausible that the hospitals to which re-

spondents may apply for service would elect to

forgo favorable tax treatment to avoid the unde-

termined financial drain of an increase in the

level of uncompensated services.

426 USS. at 43.

The requirement that the relief sought must actually

redress the injury alleged is equally applicable in the

environmental area. Although the Court has at times

21

permitted environmental plaintiffs to meet the “injury in

fact” requirement with allegations of damage to “{alesthetic

and environmental well-being,” see Sierra Club v. Morton,

405 U.S. 727, 734 (1972), it has never suggested that they

may be excused from meeting the constitutionally-based

redressability requirement. Thus, in Lujan v. Defenders of

Wildlife, 504 U.S. 555, 568 (1992), a plurality of the Court

noted that, in addition to failing to show injury, petitioners

had failed to establish redressability. That case involved a

challenge ‘o an Interior Department rule, promulgated

under the Endangered Species Act (“ESA”), requiring

inter-departmental ESA consultations on projects or

actions within the United States but not in foreign coun-

tries. Plaintiffs claimed that foreign aid monies adminis-

tered by the United States Agency for International

Development were supporting overseas programs that

would harm various endangered species and, consequently,

plaintiffs’ later ability to observe, work with or enjoy those

species.

As an initial matter, the Court in Lujan found plain-

tiffs’ allegations insufficient to establish injury in fact

because plaintiffs failed to show any imminent injury -

such as plans to visit the areas affected by the contested

projects. 504 U.S. at 564. A plurality noted that plaintiffs

had also failed to meet the redressability requirement. /d.

at 568. In this instance, a judicial order requiring inter-

agency consultations for overseas projects would not have

remedied plaintiffs’ injury. First, the funding agencies

“were not parties to the case.” Jd. Second, because U.S.

funds were only part of the financing for the relevant

projects, it was “entirely conjectural whether the non-

agency activity [by and in foreign countries] that affects

respondents will be altered or affected by the agency

22

activity [plaintiffs] seek to achieve. There is no-standing.”

Id. at 571. See also Warth, 422 U.S. at 505-06 (plaintiffs’

challenge to exclusionary zoning practices was not re-

dressable because even if zoning ordinances were invali-

dated, plaintiffs could not give “any indication” that

suitable low-income housing would actually be con-

structed); Linda R.S. v. Richard D., 410 U.S. 614 (1973)

(plaintiff lacked standing where only result of requested

order was jailing a “deadbeat dad” and any payment of

actual] support to plaintiff was speculative).

Petitioners’ redressability claim is similarly contin-

gent upon a number of assumptions regarding the likely

actions of individuals, institutions and governments far

beyond the Court’s authority. It is accordingly unsurpris-

ing that one of Petitioners’ primary experts on global

climate change concentrated his testimony below on the

question of whether other countries would follow the

United States’ lead in regulating carbon dioxide emissions

from new motor vehicles. See Declaration of Michael P.

Walsh (10 June 2004), J.A. 240. (A similar point was also

made by Dr. MacCracken, see MacCracken Declaration,

supra, at J.A. 239).

Mr. Walsh’s opinion that “efforts to reduce emissions

from U.S. motor vehicles would proliferate around the

world as other countries again adopted similar regulatory

requirements,” J.A. 245, is, however, based on the same

sort of speculation that this Court has found insufficient to

establish standing in the past. Although, it is possible that

other countries may choose to follow the United States’

lead by imposing greenhouse gas emissions limitations on

new motor vehicles, they are plainly not bound to do so

and may decide otherwise.

23

Foreign governments may well take advantage of any

competitive benefit new U.S. Clean Air Act regulations

might supply them and might actually increase their own

greenhouse gas emissions. This is precisely what hap-

pened after the United States adopted unilateral regula-

tions on the global environmental issue of ozone depletion.

As EPA explained in its notice denying the original peti-

tion for rulemaking in this case:

Early U.S. controls on substances that deplete

stratospheric ozone were not matched by many

other countries. Over time, U.S. emission reduc-

tions were more than offset by emission increases

in other countries. The U.S. did not impose addi-

tional domestic controls on stratospheric ozone-

depleting substances until key developed and de-

veloping nations had committed to controlling

their own emissions under the Montreal Protocol

on Substances that Deplete Stratospheric Ozone.

68 Fed. Reg. at 52,931 n.5, Pet. App. A-86.”

EPA also noted the serious difficulties in trying to

regulate global greenhouse gas emissions piecemeal:

* Indeed, the Kyoto Protocol is widely viewed as a failure largely

because of the difficult international interactions and policy issues

involved. As explained in The Economist magazine:

Kyoto’s failure ics hardly surprising. Agreeing on how to con-

trol carbon emissions is even harder than agreeing on how

to promote free trade. Both issues require lots of countries

to make politica] sacrifices to achieve a collective good; but

at least in the case of free trade, the benefits accrue swiftly.

The costs of cutting carbon emissions, by contrast, pile up in

the short term, while the benefits are far-off and uncertain.

“Don’t despair: Most of the news on the climate change front is bad, but

not all of it,” The Economist, Dec. 10, 2005, at 11.

24

Unilateral EPA regulation of motor vehicle GHG

emissions could also weaken U.S. efforts to per-

suade key developing countries to reduce the

GHG intensity of their economies. Considering

the large populations and growing economies of

some developing countries, increases in their

GHG emissions could quickly overwhelm the ef-

fects of GHG reduction measures in developed

countries. Any potential benefit of EPA regula-

tion could be lost to the extent other nations de-

cide to let their emissions significantly increase

in view of U.S. emissions reductions.

68 Fed. Reg. at 52,931, Pet. App. A-86.

By contrast, the likely impact of a judgment on plain-

tiffs’ injury was far less speculative in Bennett v. Spear,

520 U.S. 154 (1997), where the Court found redressability

sufficient for standing purposes. In that case, plaintiffs

challenged a biological opinion, issued by the U.S. Fish

and Wildlife Service (“FWS”) pursuant to the ESA, after

the Bureau of Reclamation determined that it would follow

the opinion with respect to certain federal water projects.

The plaintiff irrigation districts and ranchers feared that

the Bureau’s decision would reduce their water supplies.

The lower courts dismissed the suit because they con-

cluded that the-plaintiffs’ interests did not fall within the

“zone of interests” protected by Congress in either the ESA

or the Administrative Procedure Act citizen suit provi-

sions. Bennett v. Plenert, 63 F.3d 915, 919 (9th Cir. 1995).

This Court reversed. 3

First, the Court concluded that the plaintiffs’ claims did

fall within the “zone of interests” protected by Congress

in the relevant legislation. Bennett, 520 U.S. at 164. It

then addressed the causation and redressability standing

25

arguments raised by the Government as alternative bases

for affirmance. In particular, the Government argued that

redressability was not met in that case because the Bu-

reau retained “ultimate responsibility for determining

whether and how a proposed action shall go forward.” Jd.

at 168. The Court disagreed, explaining that the FWS

opinion had, in fact, “alter{ed] the legal regime to which

the action agency is subject” in that the Bureau could take

future action inconsistent with the opinion only at the risk

of violating the ESA. Id. at 169-70.

Neither a decision by the Court requiring EPA to

impose greenhouse gas emissions limitations on new

motor vehicles, nor such a regulation itself, would alter

the legal landscape in the manner described by the Court

in Bennett. It would not prevent Congress from foregoing

other emissions reductions in light of those achieved from

motor vehicles and foreign states would be bound by

neither the ruling nor any ensuring regulations. They

would remain at liberty to permit the emission of green-

house gases from new motor vehicles as they saw fit.

Indeed, the regulation Petitioners seek might fail to affect

climate change in any material way. Any credible solution

must therefore be an international one. As Congress

acknowledged when it first addressed the issue in 1978:

“lcjlimate fluctuation and change occur on a global basis,

and deficiencies exist in the system for monitoring global

climate changes. International cooperation for the purpose

of sharing the benefits and costs of a global effort to under-

stand climate is essential.” National Climate Program Act

of 1978, Pub. L. No. 95-367, § 2(5), 92 Stat. at 601.

None of this means that global climate change is not a

serious issue, or that the Bush Administration’s specific

policies are the best means of addressing it. Indeed, not all

26

Amici on this brief agree with the Administration’s current

approach. They do, however, all agree on the importance of

the separation of powers and that climate change must be

addressed by the President and Congress, and not by the

federal courts. An order granting Petitioners’ desired relief

would amount, at most, to a “statement” on the global

climate change issue. It would not resolve the problem. As

the United States courts have accepted and acknowledged

since the Republic’s founding, they are not in the business

of making such statements. Petitioners have not estab-

lished their right to bring this difficult and complex issue

before the Court. Their petition should be dismissed.

+

CONCLUSION

For the reasons stated above, Amici urge the Court to

remand this case to the court of appeals with instructions

to dismiss it for lack of standing.

Respectfully submitted,

DAVID B. RIVKIN, JR.

Counsel of Record

LEE A. CASEY

DARIN R. BARTRAM

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 861-1731

Counsel for Amici Curiae

October 24, 2006

App. 1

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

COMMONWEALTH OF

MASSACHUSETTS, et al.,

Petitioners,

v.

No. 03-1361 and

)

)

)

)

)

UNITED STATES ) consolidated cases

ENVIRONMENTAL ) (Nos. 03-1362 through 1368)

)

)

)

PROTECTION AGENCY,

Respondent.

DECLARATION OF PAUL H. KIRSHEN

I, Paul H. Kirshen, declare as follows:

1. I am the Director of the Tufts Water, Sustainabil-

ity, Health, and Ecological Diversity (WaterSHED) Center.

I am also a Research Professor in the Civil and Environ-

mental Engineering Department of Tufts University and

the International Environment and Resource Policy

Program of the Fletcher School of Law and Diplomacy.

2. I received a M.S. and Ph.D. in civil engineering

from the Massachusetts Institute of Technology, Division

of Water Resources, in 1972 and 1975, respectively. I

received a Sc.B. in engineering from Brown University in

1970.

3. Since 1986, I have been conducting research in

developed and developing countries on the impacts of

global climate change on water resources, watershed

planning, management and policy, water resources opera-

tions, decision support systems, and hydrology. Since 1999,

I have been conducting research on the impacts of global

App. 2

climate change on the metropolitan Boston area. One of

the major research topics I have been studying is the effect

of sea level rise on the metropolitan Boston coastal zone.

4. I have reviewed and am familiar with the major,

peer reviewed scientific literature and international and

domestic assessments on climate change, including, among

others, the Intergovernmental Panel on Climate Change’s ~

(IPCC) Third Assessment Report (2001), the IPCC’s Work-

shop Report, Workshop on Changes in Extreme Weather

and Climate Events, Beijing, China (June 2002), the New

England Regional Assessment Group’s Preparing for a

Changing Climate: The Potential Consequences of Climate

Variability and Change, New England Regional Overview

(2001), the Columbia Earth Institute’s Climate Change

and a Global City: The potential Consequences of Climate

Variability and Change — Metro East Coast (2001), and the

Pew Center on Global Climate Change’s Sea Level Rise

and Global Climate Change: A Review of Impacts to US

Coasts (2000). I have also reviewed the Declaration of

Michael MacCracken that is being filed in this case.

5. Based on my educational background, research,

consulting, and other professional experiences, and my

familiarity with the scientific literature and international

and domestic assessments that are widely-accepted among

the scientific community, it is my opinion that climate

change is occurring and is responsible for an increase in

sea level due to melting of ice on land and expansion of

ocean water as it is warmed. Such a rise in-sea level due to

climate change is occurring on the coast of Massachusetts,

in the metropolitan Boston area.

6. According to the IPCC’s Third Assessment Report

(2001), and as described in the Declaration of Michael

App. 3

MacCracken, during the 20th century, a global average sea

level rise of 10-20 cm (4-8 inches) has occurred, and, by

2100, it is projected that sea level will rise an average of 9-

88 cm (4-35 inches), with the more likely range being 20-

70 cm (8-28 inches), due to the meltback of mountain

glaciers, warming oceans, and other factors affecting the

amount of water stored in reservoirs and underground, all

of which are brought about by global warming. In addition

to these factors related to global warming, in the Boston

area, land subsidence also contributes significantly to sea

level rise. Over the past century, approximately 15 cm (5.9

inches) of the rise in sea level that has occurred in Boston

is attributable to land subsidence. This rise in sea level

due to subsidence would be expected in the next century in

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

projected rise in sea level due to climate change.

7. Based on this projected rise in sea level, more

coastal land in the metropolitan Boston area is at risk of

being permanently Jost due to inundation and also of being

periodically or temporarily lost due to flooding associated

with storm surge.

8. In addition to permanent losses of land in the

metropolitan Boston area, sea level rise will lead to more

frequent and severe storm surge flooding events along the

coast. Such periodic storm surge flooding is separate and

apart from any increase in extreme weather events such

as tropical and extra tropical storms that may occur as a

result of changing weather patterns.

9. The way that a rise in sea level (as opposed to

increased precipitation events) will cause periodic losses of

coastal land due to flooding in the Boston area has to do

with the relatively small difference between the elevations

App. 4

of the 10-year, 100-year, and 500-year floodplains and the

fact that any increase in mean sea level will add to the

base elevation of any storm surge, thereby giving it more

power to overtop both natural and man-made protection.

10. According to a report of the United States Army

Corp of Engineers with which I am familiar, in the Boston

area, there is only about a 0.3 meter (11.8 inch) difference

in the storm surge elevation of a 10-year, 100-year, and

500-year flood. Thus, if sea level rises 0.3 meters (11.8

inches) ~ which is near the lower end of the likely range —

that would mean the future 10-year flood surge elevation

would be at the level of the current 100-year flood elevation

and the future 100-year flood surge elevation would be at

that of the current 500-year flood elevation. When such a

rise in sea level occurs, a 10-year flood will have the magni-

tude of the present 100-year flood and a 100-year flood will

have the magnitude of the present 500-year flood.

ll. Based on this analysis, it is my opinion that

when sea level rises 0.3 meters (11.8 inches) in the Boston

area, we will experience the equivalent of what we now

think of as a 100-year flood every 10 years. If the rise in

sea level is even greater — which according to the IPCC

and Dr. MacCracken is likely — than the Boston area will

experience the equivalent of a 100-year storm on an even

greater frequency than every 10 years. In fact, if the sea

level rise is about 0.6 meters, the present 500-year flood

will occur with a 10 year frequency.

12. To attempt to cost effectively protect portions of

the Massachusetts coastline, there are measures that the

Commonwealth could implement to attempt to prepare for

the likely rise in sea level, such as construction of struc-

tures such as seawalls or groins and implementation of

App. 5

beach nourishment or sand replenishment projects. Such

projects would be quite costly.

I declare under penalty of perjury that the foregoing is

true and correct.

Executed in Medford, Massachusetts, on June 15,

2004.

/s/ Paul H. Kirshen

Paul H. Kirshen, Ph.D. .

Director, Tufts Water, Sustainability,

Health, and Ecological Diversity

(WaterSHED) Center Research

Professor, Civil Environmental

Engineering Department

Tufts University

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