Amicus Curiae Brief — Massachusetts v. EPA

OTTH — saree Oo UE

() OCT 2 4 2006

No. 05-1120

IN THE

Supreme Court of Anited States

MASSACHUSETTS, ef al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ef ai.,

Respondents.

On Writ Of Certiorari To The United States Court Of

Appeals For The D.C. Circuit

BRIEF OF THE CATO INSTITUE AND

LAW PROFESSORS JONATHAN H. ADLER, JAMES

L. HUFFMAN, AND ANDREW P. MORRISS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

TIMOTHY LYNCH

Of Counsel: (Counsel of Record)

JONATHAN H. ADLER MARK MOLLER

Case LAW SCHOOL THE CATO INSTITUTE

11075 East Blvd. 1000 Massachusetts Ave., N.W.

Cleveland, OH 44106 Washington, D.C. 20001

(216) 368-2535 (202) 842-0200

Counsel for Amici Curiae

ae

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

TABLE OF CONTENTS

Page

ee Ce Fa re CU erentnsciincnecentetecesetncescncnnsccencsicenens ili

INTERESTS OF AMICI CURIAE .0.........cccccceccccceceeecesesceceees l

SUMMARY OF ARGUMENT ......0............-:ccccccccssecsessssseees 3

DO a 4

TI. PETITIONERS HAVE NOT SATISFIED THE

REQUIREMENTS OF ARTICLE III

I 4

A. Petitioners’ Concerns About Global

Warming Present Generalized Grievances

Not Fit For Judicial Resolution......................00.0. 7

B. Petitioners Have Not Suffered Any Injury-

in-Fact That Is Both Actual Or Imminent

And Concrete And Particularized ................0.c.000000 )

C. Petitioners’ Alleged Injuries Are Not

Redressable By A Favorable Ruling From

This Or Any Other Court ...........cccecseeesseeeseeeenees 12

D. The Alternative Theories Of Standing Put

Forward By State Amici Are Equally

PUnnIPTUTTTITIT iiss sisdsitetiitehninsibscninpcchicehesaiipiiniiniantaai 14

Il. CONGRESS DID NOT DELEGATE

AUTHORITY TO REGULATE

GREENHOUSE GAS EMISSIONS TO THE

NR AUS ee RN 6 kA ae Skee Sete eS 17

RA ARTERIES SLi erat MEN SRD Neaees WO ety ee 24

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Wright,

ele aay Mea sein ecsciin eniiiadiancdhnbtsiiiciiiigiadaaainen passim

AT&T Corp. v. lowa Public Utilities Bd.,

at SU id cc ilinceherhbigelloatealteladiiialle 18

Babbitt v. United Farm Workers,

Re A a ITITITTTTTIED i nrsechsiassionipsssitniliiincansiticetebiianiindendalietnd 9

Bowen v. Georgetown Univ. Hosp.,

ae ITT ts cusishioscjoncuiccccittnsihneincinneihasatiannteiiteiaial 17

Bowsher v. Synar,

a ITI ccinscisseipcsnishtcesisieitiientacseibilecieddebaeindtitansingeiies 5

Buckley v. Valeo,

RAs III insciiciaesincinahelinsinndchiddetpihcmishistiadtsbiagniibaedaia 4

Cargo of the Brig Aurora v. United States,

BE UD. C7 Comet) Sie (BBE SD). .ccoccccscveccsosescecsncsccsenceescoese 18

Chevron USA, Inc. yv. Natural Resources Defense

Council,

I Ss SE I a scans inenindpsinsinieshininntecananinaibiaiiaiaiainin 20

City of Los Angeles v. Lyons,

eS TEIT Aicerhidebiassciodsinhindenisinebepinabeiiedieiaiimndoiabamneiia 10

Clinton v. New York,

ee ait catrrichasescncstntebdunceinsinuinisasipineialimaich 5

DaimlerChrysler Corp. v. Cuno,

ee es: WE ciencisccecincctncicntsiiesousinnsiniicininiiens passim

FDA v. Brown & Williamson Tobacco Corp.,

Se a SI siciniticinieicaniecenhieepaniieticsienjabiiiiaibe passim

Friends of the Earth, Inc. v. Laidlaw Environmental

Services, Inc.

Es SET IE icasecsdistsinctenbetccnctoniandinniinniageieannion 1]

Frothingham v. Mellon,

Be ea A EEE incintssincssnctnesinennindistibnennahinnatiinnniaibntigins 10

iV

TABLE OF AUTHORITIES

(continued)

Page(s)

Gladstone, Realtors v. Village of Bellwood,

RN ini ceaariecinddirineceldngactieidetuantiniainaredteniineeniniands 9

Industrial Union Dept., AFL-CIO v. American Pee

Petroleum institute,

Ne I siisttesicrscieecvecmscsisicimesctantosebenitiiniiin 18, 19

Loving v. United States,

517 U.S. 748 (1996)........ nipsesibieeetetilasiubiiabicanianinieebineiiabiceataitein 18

Ludecke v. Watkins,

I cintitacupn isniciietndanpciiniinencinieeinitnappiansageiiin 18

Lujan v. Defenders of Wildlife,

Be es CI ctenieisiiiaidntenetintensnssioaniasinianeasintiointi passim

Marbury v. Madison,

a ee Ge Ce Ce renccenccensctccccnsnvessenseqnenernscenies 9

Massachusetts v. EPA,

| 11,13

Metropolitan Washington Airports Auth. v. Citizens

for the Abatement of Aircraft Noise, Inc.,

Be es tee cacrinednttnieiiorcseisciliinidininerensiniantnmmemnonians 4

National Cable Television Ass'n v. United States,

I is herria ced aden dessnenentmneiaanioragtit 18

Raines v. Byrd,

ee I IT clint taieitpeaniiteinisepniainiaacipeidiiiiiidaiiis 7

Rapanos v. United States,

A A a inc cthalaredaeetadaentiiniienantion 12

Schlesinger v. Reservists Comm. to Stop the War,

eT RIEL ae TLE DOE OT 5

Sierra Club v. Morton,

I i iia trhte a cdaineniliaiiindicianaian 7

Steel Co. v. Citizens for a Better Environment,

Be I coitiiieiintisiicbtieiiteciclaiteididaienininghgetitinlineens 6, 13

Train v. Natural Resources Defense Council,

eras Se 23

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Lopez,

FRO TA. Fae Ce ee errecersssinsessccssseinninnstitiitianinenaia 5

United States v. Richardson,

GE UD. BE Ci rcctrcratesicrvsecesiciniiniatesisisipeiaiiaiaaa 6,7,8

Valley Forge Christian College v. Americans

United for Separation of Church & State,

GS UE, GIG (Ta ores cessccwseserensninsionanninpnneemnnninienill 8

Whitman v. American Trucking Ass'n, Inc., _

Oe UE, GF Ge icccesnivenccsnnsssensinitaemminianiacmaiiaaiiiiaa 23

Whitmore v. Arkansas,

GED CD. DE GR ecccccsvinccinisvnnsttinianiagmitiamiaial passim

STATUTES AND CONSTITUTIONS

GB UGA, © Fay wxcesestcsviccscsnsniiitiiicisiasninaiatitieiinaaddeaian 16, 17

GS UBS. © Fae scccpesvcinesctvinninsiiennuiinammnaiinall 14, 15, 23

42 UBL. § TICS) ccccrereecsesersssssssssseussserscisiniensidiananianinnii 16

Energy Policy Conservation Act,

PUBL. BB Fete Ri cccseetetrtmncistiinsnacineniannii 16

National Climate Program Act of 1978,

Pub. L. No. 95-367, 92 Stat. 601 (1978)........cceeeeeseeeee 21

Pub. L. No. 105-276, 112 Stat. 2461 (1998) 0... .cceeseeeeees 22

Pub. L. No. 106-74, 113 Stat. 1047 (1999) oc eeeeeeeeee 22

Pub. L. No. 106-377, 114 Stat. 1441 (2000) 0... 22

th ee 8 88 | a 17

OTHER AUTHORITIES

4 Papers of John Marshall (C. Cullen ed., 1984)...........0000 5

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

151 Cong. Rec. $7033 (June 22, 2005)........ccsesesceereceeeseeseees 22

Stephen Breyer, Judicial Review of Questions of

Law and Policy, .

38 Admin. L. Rev. 363 (1986) .........ccccccesccceereeereeereeeneees 24

Control of Emissions from New Highway Vehicles

and Engines,

68 Fed. Reg. 52922, 59926-27 (Sept. 8, 2003).......... 21, 23

Declaration of M. MacCracken................:.ccccceceserseereeerseeeees 14

Declaration of Michael P. Walsh ...00...........cccccceceseseeeeeeeeees 13

Marci A. Hamilton, Representation and Non-

Delegation: Back to Basics,

20 Cardozo L. Rev. 807 (1999) 0000... cccccccesseeeeeeeeereceeeees 19

Thomas Jefferson, Jefferson's Notes on the State of

Virginia, Query XIII (Merrill D. Peterson ed.,

EEE EERE TEU a 18

James Madison, 2 Records of the Federal

Convention of 1787 (M. Farrand ed., 1966)..................200. 9

John Manning, The Nondelegation Doctrine as a

Canon of Avoidance, ,

Ea 20

John F. Manning, Textualism as a Nondelegation

Doctrine,

97 Colum. L. Rev. 673 (1997) ........ccccccccsececeseeeceeneeereeeees 18

Henry P. Monaghan, Marbury and the

Administrative State,

ee 20

National Academy of Sciences/National Research

Council, Climate Change Science: An Analysis

of Some Key Questions (2001) ........:cccccccccssceessececeeereeseeees 11

Barry G. Rabe, Statehouse and Greenhouse: The

Emerging Politics of American Climate Change

EEE ESSE 8

Vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Arnold W. Reitze, Jr., Air Pollution Control Law:

Compliance & Enforcement (2001) ..........2.c0000s0000 22, 23

John G. Roberts, Jr., Article [1] Limits on Statutory

Standing,

a CI CITI cocissiniicsthesaretcsniiiciiaiitinnhidetiaeapiaaiiia 7.9

Antonin Scalia, How Democracy Swept the World,

es iis MD Tis, Se crenesarntintenncnnctesenapitintpnenenennitetiats 19

David Schoenbrod, Power Without Responsibility:

How Congress Abuses the People Through

Tienes iarmenrnsnpad a malirlagicenintineetaiia 19

Cass R. Sunstein, Nondelegation Canons,

ee 18

T.M.L. Wigley, The Kyoto Protocol: C02, CH4,

and Climate Implications,

25 Geophysical Research Letters 2285 (1998) ...........0000 14

BRIEF OF THE CATO INSTITUTE AND

LAW PROFESSORS JONATHAN H. ADLER, JAMES

L. HUFFMAN, AND ANDREW P. MORRISS AS AMICI

CURIAE 1N SUPPORT OF RESPONDENTS

INTERESTS OF AMICI CURIAE'

The Cato Institute was established in 1977 as a non-

partisan public policy research foundation dedicated to

advancing the principles of individual liberty, free markets,

and limited government. Cato’s Center for Constitutional

studies was established in 1989 to help restore the principles

of limited constitutional government, including the idea the

U.S. Constitution separates power among three coordinate

branches of the federal government in order to preserve

citizens’ liberty, and that the government’s role in private

economic affairs is necessarily limited. Toward that end, the

Institute and the Center undertake a wide range of

publications and programs, including the Cato Supreme

Court Review. The instant case directly concerns the

separation of powers and the role of the courts in formulating

national economic and environmental policy, and threatens

to dramatically expand the role of the federal government in

regulation of the U.S. economy. It is therefore of central

interest to the Cato Institute and its Center for Constitutional

Studies.

' Pursuant Supreme Court Rule 37.6, amici state that all parties have

consented to the filing of this brief, that no counsel for a party authored

this brief in whole or in part, and that no persons or entities other than

amici, their members, and their counsel made a monetary contribution to

the preparation or submission of this brief.

2

Jonathan H. Adler is Professor of Law and Co-Director

of the Center for Business Law and Regulation at the Case

Western Reserve University School of Law in Cleveland,

Ohio. Professor Adler teaches courses in constitutional,

administrative, and environmental law and is the author of

numerous articles on federal regulatory policy, standing in

environmental cases, and climate change policy. His work

on the latter includes editing a book on climate change

policy, The Costs of Kyoto: Climate Change Policy and Its

Implications (1997). |

James L. Huffman is the Erskine Wood Sr. Professor of

Law at the Lewis & Clark Law School in Portland, Oregon,

where he served as Dean from 1994 to 2006. Professor

Huffman teaches courses in natural resources and

constitutional law and is the author of numerous articles on

environmental law and policy, among other topics.

Andrew P. Morriss is the H. Ross and Helen Workman

Professor of Law & Professor of Business at the University

of Illinois College of Law. He is also a Senior Fellow at the

Property & Environment Research Center, in Bozeman,

Montana; a Senior Scholar at the Mercatus Center at George

Mason University; and an Adjunct Scholar for the Institute

for Energy Research (IER). Prior to coming to the

University of Illinois, he served as Galen J. Roush Professor

of Business Law and Regulation at Case Western Reserve

University, where he was also Associate Dean from 2000 to

2003. Professor Morriss has written and published

extensively on issues of environmental protection, energy

policy, and administrative law.

The views expressed herein are those of the Cato

Institute and the individual law professor amici. These

views do not necessarily represent the views of amici law

professors’ employers or any other group or organization

with which they may be affiliated.

3

SUMMARY OF ARGUMENT

Climate change is a serious public policy issue. So-

called “global warming” may well be the greatest

environmental concern of the twenty-first century. The

significance of anthropogenic contributions to climatic

warming does not, however, mean that courts should—or

even have the jurisdiction to—consider legal claims that seek

to direct U.S. policy on the subject. Current claims of injury

from global warming are quintessential generalized

grievances that courts are not competent to address.

However serious or urgent the threat of climate change may

be, such concerns are best resolved through the political

process. To thrust them upon the courts, absent the direction

(let alone acquiescence) of the political branches,

undermines both the separation of powers and _ the

democratic legitimacy of climate change policy.

In this case, petitioners are asking this Court to force the

Environmental Protection Agency (EPA) to impose

nationwide regulations on greenhouse gases, the most

ubiquitous by-products of modern industrial society, without

the concurrence of either political branch, let alone the

delegation of such power from the legislature. Yet, it is for

Congress and the executive, not the courts, to make the

ultimate decisions as to how this nation, alone or in concert

with others, will address the threat of climate change.

Article III standing is an essential component of the

separation of powers. Among other things, the requirement

of Article Ill standing ensures that exercises of judicial

power are confined to “cases” or “controversies” that are fit

for judicial resolution. In this case, petitioners cannot satisfy

the essential requirements of Article III standing. First, they

have failed to allege an injury-in-fact that is both actual or

imminent as well as concrete and particularized. Indeed, as

petitioners strain to demonstrate their alleged harms satisfy

the first prong of the injury-in-fact requirement, they

4

undermine their ability to satisfy the other requisite half of

that test. Further, petitioners’ claims are not redressable.

Therefore, petitioners do not have standing to advance their

claims, and federal courts do not have jurisdiction to hear

their claims.

Even were petitioners to have standing, their

fundamental claim is without merit, as Congress has not

delegated authority to the EPA to regulate emissions of

greenhouse gases, whether from motor vehicles or any other

source. Federal agencies possess no inherent powers. As all

legislative powers of the federal government are vested in

the Congress, agencies have only those powers expressly

delegated them by the legislature.

The language, structure, history, and underlying logic of

the Clean Air Act compel the conclusion that Congress has -

not delegated authority to the EPA to regulate greenhouse

gases as such. This conclusion is confirmed by decades

worth of congressional debates over what, if anything,

should be done to address concerns about global climate

change. If the United States is to adopt additional measures

to address the threat of climate change, it must be with the

concurrence of the legislature, not by judicial fiat.

ARGUMENT

I. PETITIONERS HAVE NOT SATISFIED THE

REQUIREMENTS OF ARTICLE III STANDING

Separation of powers is an essential feature of the

American constitutional system, and is necessary to the

preservation of individual liberty. Metropolitan Washington

Airports Auth. v. Citizens for the Abatement of Aircraft

Noise, Inc., 501 U.S. 252, 272 (1991) (“The ultimate purpose

of this separation of powers is to protect the liberty and

security of the governed.”); Buckley v. Valeo, 424 U.S. 1,

124 (1976) (“The principle of separation of powers was not

simply an abstract generalization in the minds of the

5

Framers: it was woven into the document that they drafted in

Philadelphia in the summer of 1787.”). The importance of

separation of powers principles “transcends the convenience

of the moment.” Clinton v. New York, 524 U.S. 417, 449-50

(1998) (Kennedy, J., concurring). The seriousness of the

harms alleged by the petitioners does not alter this principle.

See Bowsher v. Synar, 478 U.S. 714, 722 (1986) (“That this

system of division and separation of powers produces

conflicts, confusion, and discordance at times is inherent, but

it was deliberately so structured . . . to provide avenues for

the operation of checks on the exercise of governmental

power.”). Cf United States v. Lopez, 514 U.S. 549, 577

(1995) (Kennedy, J., concurring) (“It would be mistaken and

mischievous for the political branches to forget that the

sworn obligation to preserve and protect the Constitution in

maintaining the federal balance is their own in the first and

primary instance . . . the political branches of the

Government must fulfill this grave constitutional obligation

if democratic liberty . . . [is] to endure.”).

The Article III requirement of standing is an essential

part of the separation of powers. Allen v. Wright, 468 U.S.

737, 752 (1984) (“the law of Article III standing is built on a

single basic idea—the idea of separation of powers”). “To

permit a complainant who has no concrete injury to require a

court to rule” on important questions of national—or even

international—importance “would create the potential for

abuse of the judicial process, distort the role of the Judiciary

in its relationship to the Executive and the Legislature and

open the Judiciary to an arguable charge of . . . ‘government

by injunction.’” Schlesinger v. Reservists Comm. to Stop the

War, 418 U.S. 208, 222 (1974). “[I]f the judicial power

extended .. . to every question under the laws . . . of the

United States,” John Marshall warned, “[t}he division of

power [among the branches of government] could exist no

longer, and the other departments would be swallowed up by

the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed.,

6

1984); see also United States v. Richardson, 418 U.S. 166,

192 (1974) (Powell, J., concurring) (“we risk a progressive

impairment of the effectiveness of the federal courts if their

limited resources are diverted increasingly from their historic

role to the resolution of public-interest suits brought by

litigants who cannot distinguish themselves from all

taxpayers or all citizens”).

Petitioners have failed to meet their burden of

establishing that even one claimant has standing under

Article III]. Standing requires that “the plaintiff must have

suffered an ‘injury in fact,’” that is “actual or imminent” and

“concrete and particularized.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). In addition, the

plaintiff must demonstrate that the alleged injury is “fairly

traceable” to the conduct complained of and that “the injury

will be redressed by a favorable decision.” /d. (citation

omitted). See also Allen, 468 U.S. at 751 (“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 bear the burden of

demonstrating that they have satisfied all three elements.

DaimlerChrysler Corp. v. Cuno, 126 §. Ct. 1854, 1861 n.3

(2006) (“because we presume that federal courts lack

jurisdiction unless the contrary appears affirmatively from

the record, . . . the party asserting federal jurisdiction . . . has

the burden of establishing it”) (citation omitted); Stee/ Co. v.

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

(parties “invoking federal jurisdiction bear[{} the burden of

establishing its existence”). This is a burden they cannot

meet. In the present case, petitioners have not suffered an

“injury-in-fact,” nor have they demonstrated that any alleged

injury is redressable by a favorable decision.

J

A. Petitioners’ Concerns About Global Warming

Present Generalized Grievances Not Fit For

Judicial Resolution

Courts lack jurisdiction to hear claims that consist of

nothing more than “generalized grievance[s]” that are

“common to all members of the public.” Richardson, 418

U.S. at 176. Courts can only exercise jurisdiction over the

claim if the plaintiff has “a sufficient stake in an otherwise

justiciable controversy to obtain judicial resolution of that

controversy.” See Sierra Club v. Morton, 405 U.S. 727, 731

(1972). As the Chief Justice has observed, “[b]y properly

contenting itself with the decision of actual cases or

controversies at the instance of someone suffering distinct

and palpable injury, the judiciary leaves for the political

branches the generalized grievances that are their

responsibility under the Constitution.” John G. Roberts, Jr.,

Article III Limits on Statutory Standing, 42 Duke L.J. 1219,

1229 (1993). Indeed, it can be said that “[n]o principle is

more fundamental to the judiciary’s proper role in our

system of government than the constitutional limitation of

federal-court jurisdiction to actual cases or controversies.”

Raines v. Byrd, 521 U.S. 811, 818 (1997) (quotation

omitted).

The standing question is not merely whether a given

claim can be heard, but whether the given litigants are the

proper parties to bring a given claim. Al/en, 468 U.S. at 752

(“the standing inquiry requires careful judicial examination

of a complaint’s allegations to ascertain whether the

particular plaintiff is entitled to an adjudication of the

particular claims asserted.”). “The ‘core component’ of the

requirement that a litigant have standing to invoke the

authority of a federal court ‘is an essential and unchanging

part of the case-or-controversy requirement of Article III.”

Cuno, 126 S. Ct. at 1861. A proper showing of standing is

necessary, in part, because an exercise of the judicial power

8

“can so profoundly affect the lives, liberty, and property of

those to whom it extends.” Valley Forge Christian College

v. Americans United for Separation of Church & State, 454

U.S. 464, 473 (1982). Without question, policy decisions

concerning if, when, and how to address climate change will

“profoundly affect the lives, liberty, and property” of all

Americans, making such matters particularly unsuitable for

resolution by this Court.

That climate change may be an urgent concern provides

no argument for discarding the traditional requirements of

standing. As this Court has noted before:

It can be argued that if [petitioners are] not permitted

to litigate this issue, no one can do so. In a very real

sense, the absence of any particular individual or class

to litigate these claims gives support to the argument

that the subject matter is committed to the

surveillance of Congress, and ultimately to the

political process.

Richardson, 418 U.S. at 179.

That an issue cannot be addressed in the Court does not

mean it will not be addressed. “Lack of standing within the

narrow confines of Article III jurisdiction does not impair the

right to assert [their] views in the political forum or at the

polls.” Jd. Indeed, the regularity with which climate change

emerges in congressional debate, the increased relevance of

environmental concerns in national political campaigns, and

the rapid speed at which states have adopted various climate-

related measures, see generally Barry G. Rabe, Statehouse

and Greenhouse: The Emerging Politics of American

Climate Change Policy (2004), amply demonstrate that the

political process is fully capable of adopting climate policies

if and when the public demands such action.

9

B. Petitioners Have Not Suffered Any Injury-in-Fact

That Is Both Actual Or Imminent And Concrete

And Particularized

Injury-in-fact is an essential component of Article III

standing. The injury-in-fact requirement “ensures that the

courts will more properly remain concerned with tasks that

are, in Madison’s words, ‘of a Judiciary Nature,” Roberts,

Article III Limits on Statutory Standing, 42 Duke L.J. at 1232

(quoting James Madison, 2 Records of the Federal

Convention of 1787, 439 (M. Farrand ed., 1966)). As John

Marshall noted in Marbury v. Madison, “the province of the

court is, solely, to decide on the rights of individuals,” 5 U.S.

(1 Cranch) 137, 170 (1803), not to vindicate the public

interest in environmental protection or a suitably stable

climate. See Lujan, 504 U.S. at 576-77.

In order to have standing, petitioners must allege an

injury-in-fact that is both “actual or imminent” and “concrete

and particularized.” Lujan, 504 U.S. at 561; Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990) (“injury, we have

emphasized repeatedly, must be concrete in both a

qualitative and temporal sense”). The injuries petitioners

allege cannot satisfy both prongs of the injury-in-fact

requirement, if they can satisfy either. Insofar as petitioners

allege harms that are “actual or imminent,” the injuries are

suffered by the public at large, and are too generalized to be

the sort of individualized and particularized harm necessary

for standing. The converse is also true. Insofar as

petitioners have sought to allege specific harms that are

particular to them, the injuries alleged are too remote and

distant in time to satisfy the “actual or imminent”

requirement.

To be “actual or imminent,” the injury must be

“palpable,” Gladstone, Realtors v. Village of Bellwood, 44|

U.S. 91, 100 (1979), “certainly impending,” Babbitt vy.

United Farm Workers, 442 U.S. 289, 298 (1979), or “real

10

and immediate.” City of.Los Angeles v. Lyons, 461 U.S. 95,

101-02 (1983). Allegations of a far off injury at a much later

date are too speculative to suffice. “Although ‘imminence’

is concededly a somewhat elastic concept, it cannot be

stretched beyond its purpose, which is to ensure that the

alleged injury is not too speculative for Article III

purposes—that the injury is certainly impending.” Lujan,

504 US. at 564 n.2 (quotations omitted); id at 579

(Kennedy, J., concurring); see also Whitmore, 495 U.S. at

158 (“Allegations of possible future injury do not satisfy the

requirements of Art. Ill. A threatened injury must be

‘certainly impending’ to constitute injury in fact”) (citations

omitted); Lyons, 461 U.S. at 101-02 (“The plaintiff must

show that he has sustained or is immediately in danger of

sustaining some direct injury.””) (quotation omitted).

Insofar as litigants assert near-term effects—such as the

minor perturbations in the climate that may ~have been

detected, they are general, climatic effects that are not

concrete and particularized to the petitioners. Insofar as

petitioners allege current harm from changes in the global

climate, they allege a grievance they “suffer[{] in some

indefinite way in common with people generally.”

Frothingham v. Mellon, 262 U.S. 447, 448 (1923). Current

changes in the global climate are felt by all U.S. citizens—

indeed by all citizens of the world. They are not particular to

any one of the petitioners here, nor can they be. Such

generalized grievances are insufficient to establish injury-in-

fact. See Cuno, 126 S. Ct. at 1862.

Petitioners’ reliance upon — scientific evidence

demonstrating an anthropogenic contribution to climate

change is to no avail. Indeed, this Court need not question

petitioners’ presentation of the current state of climate

science to conclude that petitioners lack standing. “The

relevant showing for purposes of Article III standing .. . is

not injury to the environment, but injury fo the plaintiff.”

11

Friends of the Earth, Inc. v. Laidlaw Environmental

Services, Inc., 528 U.S. 167, 181 (2000) (emphasis added).

Thus claims about current or projected climatic changes are

not, by themselves, sufficient to confer standing upon the

petitioners. Article Ill standing still requires that petitioners

demonstrate “that the action injures [them] in a concrete and

personal way.” Lujan, 504 U.S. at 581 (Kennedy, J.,

concurring). They must show that they, in particular, are

among the injured—that the injuries are theirs, not simply a

consequence of generalized impacts on the global climate as

an undifferentiated whole.

Insofar the petitioners have sought to allege harms that

are particular to them—specific, localized effects such as the

Commonwealth of Massachusetts’s fear of future property

loss due to an eventual rise in sea levels over the next

century, see Massachusetts v. EPA, 415 F.3d 50, 65 (D.C.

Cir. 2005) (Tatel, J., dissenting}—the harms alleged are too

remote in the future to satisfy the actual or imminent

requirement. Even the best predictions of what may

transpire in the earth’s climate in the year 2050 or 2100 are

too speculative and remote to fulfill the requirement that

alleged injuries are “actual or imminent” “Allegations of

possible future injury do not satisfy the requirements of Art.

Ill.” Whitmore, 495 U.S. at 158. Unlike claims of an

immediate environmental impact, these allegations rely upon

many variables, including but not limited to estimates of

future greenhouse gas emissions, climatic feedback

mechanisms, and other exogenous variables, that may

change dramatically in the years to come. See, e.g., National

Academy of Sciences/National Research Council, Climate

Change Science: An Analysis of Some Key Questions 2, 18

(2001) (noting that estimates of future warming and

attendant consequences are sensitive to assumptions about a

wide range of variables), J.A. at 152, 195. This makes the

petitioners’ claims too speculative to satisfy the injury

requirement.

12

The potential seriousness of climate change does not

obviate petitioners’ obligation to demonstrate that they meet

the requirements of Article III standing. The gravity of the

harm alleged does not alter the analysis of injury. Even

where the injury alleged is “one of the most serious injuries

recognized in our legal system,” this Court has recognized its

obligation to ensure that the plaintiffs completely satisfy the

requirements of Article III, as “the federal judiciary may not

redress [any injury] unless standing requirements are met.”

Allen, 468 U.S. at 756-57.

If this Court has adhered to its constitutional obligations

when grievous constitutional harms have been alleged, there

is no basis for any less commitment to such principles here.

Indeed, if “environmental concerns provide no reason to

disregard limits in the statutory text,” Rapanos v. United

States, 126 S. Ct. 2208, 2247 (2006) (Kennedy, J. concurring

in the judgment); id. at 2228 (plurality opinion of Scalia, J.),

then such concerns clearly provide no reason to disregard the

jurisdictional limitations imposed by Article III. See aiso

Whitmore, 495 U.S. at 161 (“It is not for this Court to

employ untethered notions of what might be good public

policy to expand our jurisdiction in an appealing case.”).

Under well established standards for Article III standing,

petitioners cannot establish that they have suffered an injury-

in-fact.

C. Petitioners’ Alleged Injuries Are Not Redressable

By A Favorable Ruling From This Or Any Other

Court

It is not enough to establish standing that a petitioner

demonstrate an “injury-in-fact.” In addition, petitioners

“must allege personal injury fairly traceable to the

defendant’s allegedly unlawful conduct and likely to be

redressed by the requested relief.” Allen, 468 U.S. at 751.

As this Court explained in Stee/ Co. v. Citizens for a Better

Environment, “[rjelief that does not remedy the injury

13

suffered cannot bootstrap a plaintiff into federal court; that is

the very essence of the redressability requirement.” 523 U.S.

at 107. This, too, is a burden petitioners cannot meet.

The redressability of petitioners’ alleged injuries depends

upon claims that various third parties not subject to this

litigation will take independent actions in coming years and

decades to mitigate the harms they allege will result from

climate change. Whereas in Lujan the redressability of the

plaintiffs’ claims depended upon the compliance of another

agency within the federal government, here redressability is

contingent upon the future actions of foreign governments,

private firms, and the market for automotive technologies.

Whether or not, as the dissent below contends, there is “a

basis for concluding that other countries would come to

mandate technology developed in response to U.S.

regulation,” Massachusetts v. EPA, 415 F.3d at 66 (Tatel, J.,

dissenting), the unconstrained, voluntary actions of third

parties at some indefinite point in the future cannot serve to

satisfy the redressability requirement of Article Ill. Such

claims are “entirely conjectural.” Lujan, 504 U.S. at 571.

Petitioners’ experts may have “no doubt” that foreign

governments “would gradually be mandated by other

countries around the world,” Decl. of Michael P. Walsh € 10,

J.A. at 244. Nonetheless, whatever the likelihood of such

future actions, they remain purely speculative for the

purposes of satisfying the requirements of Article III. “This

is precisely the sort of conjecture [this Court] may not

entertain in assessing standing.” Cuno, 126 S. Ct. at 1866.

The speculative nature of petitioners’ claim is further

demonstrated by the fact that even were petitioners able to

demonstrate standing and establish that the EPA had the

authority to regulate motor vehicle emissions of greenhouse

gases, there is still no basis to conclude that a favorable court

judgment would provide petitioners with any meaningful

relief whatsoever. According to petitioners, the U.S.

4b

transportation sector represented approximately 7 percent of

global emissions during the 1990s. Decl. of M. MacCracken

§ 30, J.A. at 238. Even assuming that the entirety of these

emissions were subject to regulation by the EPA under

Section 202 of the Clean Air Act, 42 U.S.C. § 7521, and that

the EPA were to impose dramatic curbs on such emissions,

this would not redress petitioners’ alleged injuries in any

meaningful respect. Indeed, even were the EPA to eliminate

all greenhouse gas emissions from the U.S. transportation

sector (which includes many sources of emissions beyond

the passenger vehicles subject to regulation under Clean Air

Act Section 202), this would not alleviate the harms

petitioners allege they will suffer from climate change.

Dr. T.M.L. Wigley of the National Center for

Atmospheric Research demonstrated that were all developed

nations—those on “Annex B”—to fully comply with the

greenhouse gas emission reduction targets established by the

Kyoto Protocol, and maintain such controls through 2100,

this would only change the predicted future warming by

0.15°C by 2100, and projections in sea-level rise would be

modified by only 2.5 centimeters. T.M.L. Wigley, The

Kyoto Protocol: CO2, CH4 and Climate Implications, 25

Geophysical Research Letters 2285 (1998). Yet, the

reductions modeled in the Wigley study are several times

greater than the complete elimination of all greenhouse gas

emissions from the U.S. transportation sector, let alone any

realistic estimate of emission reductions to be achieved from

the imposition of regulatory controls over time, particularly

given “the lead time needed to economically introduce

changes into the motor vehicle fleet.” Decl. of M.

MacCracken § 32, J.A. at 239.

D. The Alternative Theories Of Standing Put

Forward By State Amici Are Equally Unavailing

State amici forward an additional basis for standing that

is equally unavailing. Specifically, state amici claim that

15

states have standing because their efforts to address

greenhouse gas emissions “could be and indeed have been

challenged as preempted based on the EPA’s decision” not to

regulate. Brief of the States of Arizona, et al., in Support of

Petitioners at 6.7 State amici claim, in turn, that they 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.” /d at 13. Contrary to state amici’s

contentions, this is not a sufficient basis for standing.

States’ vulnerability to claims of federal preemption is

not only speculative, but is also wholly independent of the

EPA’s authority to regulate greenhouse gas emissions under

Section 202(a) of the Clean Air Act, 42 U.S.C. § 7521(a).

While some may claim that the EPA’s lack of authority

under Section 202(a) is a basis for preempting states from

adopting emission standards of their own, states would

remain subject to colorable preemption claims even were the

EPA to assert the authority to regulate greenhouse gases

under the Clean Air Act. Put simply, “[t]here is no amount

of evidence that potentially could establish that [state

amici’s] asserted future [preemption] injury is [either] ‘real

and immediate,"” Whitmore, 495 U.S. at 160, fairly traceable

to the EPA’s decision, or redressable.

First, state amici cannot demonstrate that the EPA’s

lack of authority to regulate vehicle emissions of greenhouse

gases will lead to the preemption of state efforts to adopt

such controls, as there are many alternative bases upon

which courts could conclude that state regulation of

? See also id. at 13 (“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 therefore 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.”).

16

greenhouse gases is preempted. Not only may courts

conclude that state efforts to regulate motor vehicle

emissions of greenhouse gases are preempted by Section

20%a), 42 U.S.C. § 7543(a), irrespective of EPA’s authority

under the Clean Air Act, but other provisions of federal law,

such as the Energy Policy Conservation Act, 49 U.S.C. §§

32901-32919, may be sufficient to preempt state efforts.

See, e.g., id. § 32919 (preempting state laws “related to fuel

economy standards”). “It is just not possible for a litigant to

prove in advance that the judicial system will lead to any

particular result in his case.” Whitmore, 495 U.S. at 159-60.

Even were this Court to conclude that EPA had the

authority to regulate greenhouse gas emissions under Section

202(a) of the Clean Air Act, and EPA were to adopt such

emission standards, there is no guarantee that the state amici

would be free to adopt regulations governing the emission of

greenhouse gases from motor vehicles. Among other things,

Clean Air Act Section 209(a), 42 U.S.C. § 7543(a), prohibits

states from adopting or attempting to enforce “any standard

relating to the control of emissions from new motor

vehicles” that are subject to regulation under Section 202.

State efforts to regulate vehicular emissions would still be

contingent upon the approval of a waiver for the state of

California to adopt such regulations under Clean Air Act

Section 209(b)(1), 42 U.S.C. § 7543(b)(1), and a

determination that the ability of states other than California

to adopt equivalent vehicle emission controls under Clean

Air Act Section 177, 42 U.S.C. § 7507, extends to emissions

that are not subject to regulation under the Clean Air Act’s

nonattainment provisions. Thus, states’ ability to regulate

automotive emissions would remain wholly speculative.

State amici argue that “because the EPA has refused to

regulate emissions 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

17

emissions.” Brief of the States of Arizona, et al., in Support

of Petitioners at 19. Yet this would be equally true were the

EPA ta regulate- greenhouse gas emissions from motor

vehicles. Under the Clean Air Act, states’ only options with

regard to the regulation of motor vehicle tailpipe emissions

are to either accept existing federal standards or to adopt

relevant standards adopted by the state of California. See 42

U.S.C. § 7507. This remains so irrespective of whether EPA

has or exercises the authority to regulate tailpipe emissions

of greenhouse gases.

Therefore, even assuming the claims of state amici

describe an injury, the injury is neither fairly traceable to the

EPA’s alleged failure to regulate greenhouse gas emissions,

nor can it satisfy the requirement of redressability. In either

case, the argun :nts raised by state amici are too speculative

to satisfy the requirements of Article III standing.

Il. CONGRESS DID NOT DELEGATE AUTHORITY

TO REGULATE GREENHOUSE GAS EMISSIONS

TO THE EPA

Article | of the Constitution vests all legislative power in

the Congress. “All legislative power herein granted shall be

vested in a Congress . . .” U.S. Const. art. 1, § 1. The EPA,

like all federal agencies, has no inherent powers. “It is

axiomatic that an administrative agency’s power to

promulgate legislative regulations is limited to the authority

delegated by Congress.” Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 208 (1988). Before the EPA may impose rules

on private individuals to control greenhouse gas emissions,

Congress must make the decision that such rules are

necessary and either enact such rules directly, or delegate

such authority to the EPA with an “intelligible principle” to

guide the agency’s actions.

By ensuring that administrative agencies only exercise

those powers delegated to them by the people’s

representatives, the delegation doctrine fosters democratic

18

accountability and safeguards liberty. “The delegation

doctrine [was] developed to prevent Congress from forsaking

its duties,” Loving v. United States, 517 U.S. 748, 757

(1996), such as developing national climate change policy

after legislative debate and in concert with the executive.

While this Court has been reluctant to apply the

delegation doctrine with any force, it has consistently

reaffirmed the bedrock constitutional notion that agencies

_ have only those powers delegated to them by Congress. The

Court has also interpreted statutes so as to avoid potential

delegation problems, see, e.g. Industrial Union Dept., AFL-

CIO v. American Petroleum Institute, 448 U.S. 607, 646

(1980), National Cable Television Ass'n yv. United States,

415 U.S. 336, 340-41 (1974), or required the agency to

construe a statute so as to avoid delegation concerns. See

AT&T Corp. v. lowa Public Utilities Bd., 525 U.S. 366, 388-

89 (1999). See also John F. Manning, Textualism as a

Nondelegation Doctrine, 97 Colum. L. Rev. 673 (1997); Cass

R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315

(2000).

Here the delegation doctrine serves as a background

principle that requires the legislature and the executive,

rather than unelected administrative agencies or the courts, to

make policy decisions of national or global significance.

The delegation doctrine ensures that “important choices of

social policy are made by Congress, the branch of our

Government most responsible to the popular will.” /ndustrial

Union Dep't, 448 U.S. at 685 (Rehnquist, J., concurring). As

history demonstrates, the Framers believed that momentous

policy choices should be made by the _ people’s

representatives. See Ludecke v. Watkins, 335 U.S. 160

(1948); Cargo of the Brig Aurora v. United States, 11 U.S. (7

Cranch) 382, 388-89 (1813); Thomas Jefferson, Jefferson's

Notes on the State of Virginia, Query XII1 173 (Mermill D.

Peterson ed., 1975) (“Our ancient laws expressly declare;

19

that those who are but delegates themselves shall not

delegate to others powers which require judgment and

integrity in their exercise”). See generally David

Schoenbrod, Power Without Responsibility: How Congress

Abuses the People Through Delegation (1993); Marci A.

Hamilton, Representation and Non-Delegation: Back to

Basics, 20 Cardozo L. Rev. 807 (1999). Indeed, “the most

significant development in the law over the past thousand

years is the principle that laws should be made not by a ruler

or his ministers, or his appointed judges, but by

representatives of the people.” Antonin Scalia, How

Democracy Swept the World, Wall St. J., Sept. 7, 1999, at

A24.,

When the Food and Drug Administration (FDA) sought

to extend its regulatory authority to tobacco products, this

Court found “reason to hesitate before concluding that

Congress has intended such an implicit delegation.” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 159

(2000). The same caution is warranted here. Indeed, this

presents more of an “extraordinary case” than did FDA v.

Brown & Williamson, as it involves more than “assert[ing]

jurisdiction to regulate an industry constituting a significant

portion of the American economy.” /d. at 159. Rather, this

litigation seeks steps toward regulating American industry as

a whole, not just emissions from motor vehicles.

Greenhouse gases are the most ubiquitous by-product of

modern industrial society, and the rationales petitioners have

put forward to justify regulation under Section 202 of the

Clean Air Act could well justify the regulation of other

sources of greenhouse gases under other portions of the Act.

It is one thing to accept Congress’s explicit decisions to

engage in broad delegations of quasi-legislative authority to

administrative agencies, as this Court has done. It is quite

another to conjure a delegation of awesome regulatory

authority from statutory provisions that were never intended

20

to be used for this purpose. Regulatory tools are delegated to

agencies with specific language for specific purposes. See

Henry P. Monaghan, Marbury and the Administrative State,

83 Colum. L. Rev. 1, 14 (1983) (“the universe of each agency

is limited by the legislative specifications contained in its

organic act.”). Once granted, these tools are not free-ranging

objects to be wielded as agencies, courts, or private litigants

would like.

Under this Court’s precedents, Congress clearly has the

power to delegate responsibility to the EPA for the

regulation of greenhouse gases, provided it articulates an

“intelligible principle” to guide the EPA’s hand, just as it has

delegated responsibility for the regulation of ambient air

pollutants, hazardous air pollutants, and ozone-depleting

substances under the Clean Air Act. Yet Congress has not

done so. Until such time as the legislature makes such, an

express delegation of authority, the EPA is without such

power—irrespective of what interpretation various political

administrations place on the existing language of the Clean

Air Act. The decision whether to adopt controls on the

emissions of greenhouse gases, whether from automobiles or

any other source, is “quintessentially one of legislative

policy,” /ndustrial Union Dep’t, 448 U.S. at 685 (Rehnquist,

J., concurring), and therefore one that must be made by the

legislature. “The responsibilities for assessing the wisdom of

such policy choices and resolving the struggle between

competing views of the public interest are not judicial ones.”

Chevron USA, Inc. v. Natural Resources Defense Council,

467 U.S. 837, 866 (1984).

Congress cannot be presumed to have delegated the

discretionary authority to regulate the most ubiquitous by-

product of modern industrial society through provisions

clearly designed to address environmental problems of a

different sort. As this court has observed, “we must be

guided to a degree of common sense as to the manner in

21

which Congress is likely to delegate a policy decision of

such economic and political magnitude to an administrative

agency.” Brown & Williamson, 529 U.S. at 133. Given the

significance of climate change, and the unprecedented nature

of the regulation petitioners seek, it is dubious that Congress

would have sought to impose controls on greenhouse gas

emissions in so indirect a fashion as alleged here. See John

Manning, The Nondelegation Doctrine as a Canon of

Avoidance, 2000 Sup. Ct. Rev. 223, 276-77 (“If Congress

has addressed a subject, but has done so in a limited way,

this fact itself may suggest that Congress has gone as far as it

could, as far as the enacting coalition wished to, on the

subject in question.”).

Congress has repeatedly addressed climate change since

1978 without once giving any indication that it had delegated

regulatory authority to the EPA over greenhouse gases. See

National Climate Program Act of 1978, Pub. L. No. 95-367,

92 Stat. 601 (1978) (“an Act to establish a comprehensive

and coordinated national climate policy and program”).

Congress gave due consideration to concerns about climate

change during the years preceding the 1990 Clean Air Act

Amendments. The 1990 Amendments included a new

subsection on ozone depletion and several provisions

encouraging “non-regulatory” approaches to greenhouse gas

emissions. Indeed, Congress considered and rejected an

explicit proposal to regulate greenhouse gases. The

amendments initially approved by the Senate Committee on

Environment and Public Works included limits on

automobile tailpipe emissions of carbon dioxide, yet this

language was stricken before passage due to staunch

- Opposition on many fronts. See Control of Emissions from

New Highway Vehicles and Engines, 68 Fed. Reg. 52922,

59926-27 (Sept. 8, 2003). In the end, Congress told the EPA

to study greenhouse gas emissions, not to regulate them. As

summarized by one of the leading authorities on the Clean

Air Act:

2

EPA does not have any clear authority to regulate

GHGs [greenhouse gases]. Given the extent of the

congressional efforts to address the issues

concerning GHGs and the absence of a credible

mandate, there is little support for a claim that EPA

has some latent power and obligation under the

CAA to regulate these emissions.

Arnold W. Reitze, Jr., Air Pollution Control Law:

Compliance & Enforcement 427 (2001).

Were this history not enough, several times since 1990

Congress has rejected the authorization of regulatory

controls on greenhouse gases. In 1995, the Senate

unanimously approved the so-called Byrd-Hagel resolution

rejecting the Kyoto Protocol and stating that the U.S. will not

act to control greenhouse gas emissions unless and until the

rest of the world is willing to follow suit, S. 98, 105th Cong.

(1997), and subsequently adopted numerous appropriations

riders to prohibit the EPA from taking actions to implement

the Protocol. See Pub. L. No. 105-276, 112 Stat. 2461, 2496

(1998); Pub. L. No. 106-74, 113 Stat. 1047, 1080 (1999);

Pub. L. No. 106-377, 114 Stat. 1441, 1441A-41 (2000). Just

last year, the Senate passed the so-called Bingaman-

Domenici Resolution calling upon Congress to adopt

measures to limit emissions of greenhouse gases. See 151

Cong. Rec. $7033 (June 22, 2005). If Congress had already

delegated authority to regulate greenhouse gases to the EPA,

such resolutions would be wholly unnecessary.

That the relevant provisions of the Clean Air Act are so

poorly suited to the control of greenhouse gases is further

evidence that Congress has not delegated such authority to

the EPA, let alone provided an “intelligible principle” for the

exercise of such authority. The clear intent of the Act when

first enacted in 1967 and as subsequently amended in 1970,

1977, and 1990, is to control local and regional air pollution,

such as soot and smog, not emissions such as carbon dioxide

es

\

23

that disperse throughout the global atmosphere. Indeed, the

“heart” of the Act, as this Court has observed, is the set of

provisions governing the creation and attainment of National

Ambient Air Quality Standards (NAAQS) that localities are

required to meet. Train v. Natural Resources Defense

Council, 421 U.S. 60, 66 (1975). Under these provisions,

states are required to develop implementation plans to ensure

that all metropolitan areas meet the NAAQS. The goal is to

ensure that the ambient air in every county meets a minimum

threshold, and the structure is premised on the notion that

each region is capable of enacting measures that will enable

the air quality standard to be met. This framework is wholly

incompatible with the regulation of greenhouse gases, for

which measurements of local, ambient concentrations are

meaningless. Yet, it is provisions designed to address this

central concern of the Act and help states comply with the

‘NAAQS such as Section 202(a), 42 U.S.C. § 7521(a), that

petitioners now seek to invoke against climate change. See

Reitze, Air Pollution Control Law, supra, at 419-21 (2001)

(detailing history and purpose of Clean Air Act Section 202

and concluding that such history “does not support the use of

§202(a)” for control of greenhouse gas emissions).

This Court has “refused to find implicit in ambiguous

sections of the CAA” the authorization for regulatory actions

that would typically be explicit. Whitman v. American

Trucking Ass'ns, Inc., 531 U.S. 457, 467 (2001). “Congress,

we have held, does not alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions—it

does not, one might say, hide elephants in mouseholes.” /d.

at 468. The authority to regulate greenhouse gases—

ubiquitous gases that are inevitably produced by the

combustion of fossil fuels—is among the greatest regulatory

undertakings ever contemplated in environmental law. See

Control of Emissions from New Highway Vehicles and

Engines, 68 Fed. Reg. 52922, 59928 (Sept. 8, 2003) (“It is

hard to imagine any issue in the environmental area having

24

greater ‘economic and political significance’ than regulation

of activities that might lead to global climate change.”). As

such, it is quite a large “elephant.”

It is simply implausible that Congress would leave such a

mammoth issue unaddressed in the text of the Clean Air Act,

despite countless debates over climate change policy, had

Congress sought to confer such regulatory authority to the

EPA. Brown & Williamson, 529 U.S. at 160 (“We are

confident that Congress could not have intended to delegate

a decision of such economic and political significance to an

agency in so cryptic a fashion.”). As then-Judge Breyer

observed, “Congress is more likely to he.e focused upon,

and answered, major questions,” such as whether to regulate

an entire class of omnipresent emissions, while “leaving

interstitial matters” for resolution by the agency during the

“daily administration” of the statute.. Stephen Breyer,

Judicial Review of Questions of Law and Policy, 38 Admin.

L. Rev. 363, 370 (1986).

- CONCLUSION

Petitioners seek to drag courts into a complex and

contentious policy question at the intersection of economics,

environmental protection, international diplomacy, and

distributive justice. This is an invitation this Court should

not accept. If this nation is to adopt momentous measures to

address the threat of climate change, that is a decision that

must be made in the halls of Congress, and perhaps in the

negotiation sessions of international conferences among

states, not in this Court.

25

Respectfully submitted.

TIMOTHY LYNCH

Of Counsel: (Counsel of Record)

JONATHAN H. ADLER MARK MOLLER

CASE LAW SCHOOL THE CATO INSTITUTE

11075 East Blvd. 1000 Massachusetts Ave., N.W.

Cleveland, OH 44106 Washington, D.C. 20001

(216) 368-2535 (202) 842-0200

Counsel for Amici Curiae

Dated: October 24, 2006

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