Amicus Curiae Brief — Massachusetts v. EPA

36 FILED

No. 05-1120 O

In The

Supreme Court of the Anited States

+

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

PETITIONERS,

V.

ENVIRONMENTAL PROTECTION AGENCY, FT AL.,

RESPONDENTS.

+

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

¢

Brief Amicus Curiae of

ERNEST L. DAMAN, TOM A. HENDRICKSON

NATHAN H. HURT, KLAUS S. LACKNER,

DENNIS K. McBRIDE, A. ALAN MOGHISSI,

HAROLD W. OLSEN, PAOLO F. RICCI

PETER P. ROGERS and RICHARD WILSON

in Support of Respondent

*

MARTIN S. KAUFMAN*

* Counsel of Record

Atlantic Legal Foundation

60 East 42nd Street

New York, NY 10165

(212) 867-3322

Counsel for Amici Curiae

oo

FFICE OF FRE eiK

—LSUPREME COURT OS

'

i

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmental Protection

Agency has authority to regulate air pollutants associated with

climate change under section 202(a)(1) of the Clean Air Act, 42

U.S.C. 7521(a)(1).

2. Whether the EPA Administrator may decline to issue

emission standards for motor vehicles based on policy

considerations not enumerated in section 202(a)( 1) of the Clean

Air Act.

PARTIES TO THE PROCEEDINGS BELOW

Petitioners, who were petitioners in the court of appeals,

are the Commonwealth of Massachusetts, the States of California,

Connecticut, Illinois, Maine, New Jersey, New Mexico, New

York, Oregon, Rhode Island, Vermont, and Washington, the

District of Columbia, American Samoa Government, New York

City, the Mayor and City Council of Baltimore, Center for

Biological Diversity, Center for Food Safety, Conservation Law

Foundation, Environmental Advocates, Environmental Defense,

Friends of the Earth, Greenpeace, International Center for

Technology Assessment, National Environmental Trust, Natural

Resources Defense Council, Sierra Club, Union of Concerned

_ Scientists, and U.S. Public Interest Research Group.

Respondents are the Environmental Protection Agency,

and the Alliance of Automobile Manufacturers, National

Automobile Dealers Association, Engine Manufacturers

Association, Truck Manufacturers Association, CO, Litigation

Group, Utility Air Regulatory Group, and the States of Michigan,

Alaska, Idaho, Kansas, Nebraska, North Dakota, Ohio, South

Dakota, Texas, and Utah (intervenors below).

ii

CORPORATE DISCLOSURE STATEMENT

Amici are individuals, who appear here in their individual

capacities, and not as officers, directors or members of any

institution with which they are affiliated.

iii

TABLE OF CONTENTS

Page

ED a vecuddoddvesegnedeeéedvsrteodaies I

Parties to the Proceeding Below..................2.44.. I

Corporate Disclosure Statement .................2.045. ii

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iV

TABLE OF AUTHORITIES

Page

Cases

Action for Children’s Television, 564 F.2d 458

EL EEE 0 640 beh eédendes oonseeccenebente 22, 25

American Horse Protection Ass 'n v. Lyng,

ee Bin Ee PEED 8.0 cccs covececccesceessses 22

Cellnet Communications, Inc. v. FCC,

965 F.2d 1106 (D.C. Cir. 1992)... 0.2.0... cece eee 22

Environmental Defense Fund v. EPA, 598 F.2d 62

ME ive co cuin eae cnabeseeecieaas onee 25

Ethyl Corp. v. EPA, 541 F.2d 1 (en banc),

cert. denied, 426 U.S. 941 (1976) .............. 23, 24, 25

FDA v. Brown & Williamson Tobacco Corp.,

ee NS obs b waddne se dcaadasdbiesentectace-®

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

National Bank of Commerce v. Assoc. Milk Producers, Inc.,

22 F. Supp.2d 942 (E.D. Ark. 1998) ............ 00000. 16

NRDC v. SEC, 606 F.2d 1031 (D.C. Cir. 1979) .......... 25

WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir. 1981)... . 22, 25

Vv

TABLE OF AUTHORITIES (cont'd)

Page

Statutes

Clean Air Act, sections 108 and 109, 42 U.S.C. 7408-7409 .. 3

Clean Air Act, section 202(a)(1),

42 U.S.C. § 7521(a)(1) (2000) ...............4... passim

Clean Air Act, section 302, 42 U.S.C. 7602 .............. 3

Clean Air Act, section 302(g), 42 U.S.C. 7602 ............ 3

Energy Policy and Conservation Act, Title V,

PCRs BO DUPRE Sekcddcciscnecnneducccopuea 4

Miscellaneous

M.R. Allen., et al., “Quantifying the uncertainty in forecasts of

anthropogenic climate change,” Nature 407 (2000) ........ 9

S. Arrhenius, “‘On the influence of carbonic acid in the

air upon the temperature of the ground,”

41 Philosophical Magazine 237 (1896) ................ 10

Climate Change Science: An Analysis of Some

ee Se 0 0 0c bc adbedasecninee buedeveens 5

Control of Emissions from New Highway Vehicles

and Engines, Notice of denial of petition for

rulemaking, 68 Fed. Reg. 52922 (Sept. 8, 2003) .... passim

L.A. Cox and P.F. Ricci, “Health-Risk Assessment:

Production of Electricity,”

116 J. Energy Engineering 130 (1990) ............... 14

vi

TABLE OF AUTHORITIES (cont'd)

Page

Miscellaneous (cont'd)

A. Kalelkar, J. Fiksel, P.F. Ricci, end T.I.. Cox,

“Occupational Risks of Energy Production,”

24 Nuctear Safety 459 (IDES) 2... ccc wesc ccc cees 14

Doull & Bruce, “Origin and Scope of Toxicology,”

in CASARETT & DOULL’S TOXICOLOGY: THE BASIC

SCIENCE OF POISONS (3d ed. 198€) ................... 16

Foukal, et al., “Variations in solar luminosity and their

etfect on the Earth’s climate,” 443 Nature. 161-166 (2006) 12

J.A. Fourier, 7 Mem. Acad. Sci. Inst. Fr. S69 (1839)... ... 10

R. Hagar, “Submarine Atmosphcric Control and

Monitoring Brief for the COT Committee, Presentation

at the First Mecting on Emergency and Continuous

Exposure Guidance Levels for Selected Submarine

kk nee es 17

' F. Hansen, et a/., “Climate forcings in the industrial era,”

95 PROCEEDINGS OF THE NATIONAL ACADEMY OF

RR ee a ae 10

D.V. Hoyt and K.H. Schatten, Tit ROLE OF THE SUN

EDs oc oes ceveccecécoscesses 12

D.W. Jorgensen, and PJ. Wilcoxen, “Reducing

U.S. Carbon Dioxide Emissions: the Cost of

Different Goals,” John F. Kennedy School ot

Government, Center for Science and

International A flairs, Discussion Paper 91-9 (1991)... 14, 20

vi

TABLE OF AUTHORITIES (cont'd)

Miscellaneous (cont'd)

D.W. Jorgensen, Testimony Before the Senate

Committee on Environment and Public Works

(July 10, 1997),

http://epw.senate.gov/105th/jorg0710.hum .......... 14-15

C.D. Keeling, R.B, Bacastiw, A.E. Bainbridge, A. Ekhdahl,

R. Guenther and S. Waterman, “Atmospheric carbon -

dioxide variations at Mauna Loa Observatory Hawaii,”

ED ¢ ddedkdcccadenannctseccagae #

C.D. Keeling, “The Carbon Dioxide Cycle,”

in CHEMISTRY OF THE LOWER ATMOSPHERE

ns oe ae ee ceeenpaeechaee 9

J.T. Kiehl, J. T., K.E. Trenberth, "Earth’s Annual

Global Mean Energy Budget," 78 (2) Bulletin of

the American Meteorological Society 197-208 (1997) .... 13

K.S. Lackner, R. Wilson and H-J Ziock; "Free-Market -

Approaches to Controlling Carbon Dioxide Emissions

to the Atmosphere: a Discussion of the Scientific Basis,"

Global Foundation Conference on "Global Warming

and Energy Policy"(American Institute of Physics,

Kursunuglu, Mintz and Perlmutter, eds., 2000) .......... 21

National Academies, Board on Environmental Studies and

Toxicology, “Emergency and Continuous Exposure

Guidance Levels for Selected Submarine

od cenckbbeeke bce Wesndeed den 17

vill

TABLE OF AUTHORITIES (cont'd)

Page

Miscellaneous (cont'd)

National Academy of Sciences, Board on Atmospheric

Sciences and Climate, SURFACE TEMPERATURE

RECONSTRUCTIONS FOR THE LAST 2,000 YEARS (2006) ... 12

National Academy of Science, Commission on Engineering

and Technical Systems, “Automotive Fucl Economy:

How Far Can We Go?” (1992), available at

http://www7.nationalacademies.org/deps/>CETS) ....... 13

National Academy of Science, Committee on Science,

Engineering, and Public, “Public Policy Implications

of Greenhouse Warming” (1991), available at

http://www7.nationalacademies.org/cosepup/ ......... 9, 11

Norwegian Commission on Low Emissions,

“NOU 2006:18: A climate-fnendly Norway,”

October 4, 2006, English language summary

available at http://www.lavutslipp.no/article_1334.shtml . . 21

W. Pagel, Paracelsus (2d ed. 1982) .................... 16

Paracelsus, FOUR TREATISES OF THEOPHRASTUS

VON HOHENHEIM (H. E. Sigerist, ed.) (1941) ............ 16

PF. Ricci, ENVIRONMENTAL RISK ASSESSMENT

AND MANAGEMENT: PRINCIPLES AND PRACTICES (2006) .. 14

P.F. Ricci, “Mortality, Air Pollution, and

Energy Production: Uncertainty and Causality,”

116 J. Energy Engineering 148 (1990) ................ 14

ix

TABLE OF AUTHORITIES (cont'd)

Page

Miscellaneous (cont'd)

H. Svensmark, J.O.P. Pedersen, N.D. Marsh,

M.B. Enghoff, U.1. Uggerhaj, “Experimental

Evidence for the Role of Ions in Particle

Nucleation Under Atmospheric Conditions,”

462 Proceedings of the Royal Society A: Mathematical,

Physical and Engineering Sciences 1773 (Oct. 3, 2006),

http://www journals.royalsoc.

ac.uk/(Shelzf45nxp3va5 Seoguqt55 )/app/home/

contribution.asp?referrer=parent&backto=issue, 12,46;

journal, | ,133;linkingpublicationresults,1:102023,1 ...... 12

U. S. Department of Energy, Framework for an Energy

Security and Climate Stabilization Strategy (2004) ...... 15

U. S. Environmental Protection Agency, Office of Policy,

Inventory of U. S. Greenhouse Emissions and Sinks,

1990-2004 (EPA 430-R-06-002) (2006) ....... 9,10, 11, 13

a pit al

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No. 05-1120

Bn The

Supreme Court of the Anited States

+

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

P®TITIONERS,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

RESPONDENTS.

¢

Brief Amicus Curiae of

ERNEST L. DAMAN, TOM A. HENDRICKSON

NATHAN H. HURT, KLAUS S. LACKNER, ~

DENNIS K. McBRIDE, A. ALAN MOGHISSI,

HAROLD W. OLSEN, PAOLO F. RICCI

PETER P. ROGERS and RICHARD WILSON

in Support of Respondent

+

INTEREST OF AMICI CURIAE

Amici respectfully submit this brief as amici curiae in support

of the Respondents.’

' The parties have consented to the filing of this brief; their letters

of consent are on file with the Clerk of the Court. In accordance with Rule

37.6, amici state that no counsel for either party has authored this brief in

whole or in part, and no person or entity other than amici has made a

monetary contribution to the preparation or submission of this brief.

2 Amicus Dennis K. McBride is President of the Potomac Institute

for Policy Studies, a non-partisan, independent "think tank” which does

(continued...)

2

Amici are scientists and engineers with diverse views on the

projected global climate change as a consequence of increases in

the atmospheric carbon dioxide (“CO,.). Some amici think that

societal action to control global atmospheric carbon dioxide

concentrations in the atmosphere is long overdue. Other amici

are concerned about the economic impact of overly hasty action.

However, amici agree that regulating the CO, emissions from

automobiles under the Clean Air Act is not the appropriate way

to attempt to control these global concentrations and may well

have an economic cost that far exceeds using other alternatives.

This conclusion should, however, not be taken as opposition to

more direct and inclusive mvihods of addressing increasing

carbon dioxide concentrations in the atmosphere.

Amici believe that Petitioners and certain of the amici filing

briefs in support of petitioners’ oversimplify and to some extent

conflate diverse and not wholly consistent concepts in trying to

suggest that regulating motor vehicle tailpipe emissions,

particularly of carbon dioxide, will have a significant impact on

climate change.

STATEMENT OF THE CASE

This case involves review of the U.S. Environmental

Protection Agency’s (“EPA” or “Agency”) denial in 2003 of a

petition for rulemaking, filed in 1999, asking the Agency to

2(...continued)

work for the Congress, the Executive branch and the Judiciary. It does no

work for respondent EPA. It has done work for the Department of Energy,

largely collaborative with the National Laboratories (primarily Sandia and

Los Alamos) on high tech national security and homeland security issues.

None of its work for DOE has been concerned with hydrocarbon energy.

Amicus A. Alan Moghissi is President of Institute for Regulatory

Science, which also does work for the Department of Energy, primarily

designing and conducting peer reviews of DOE science projects.

> Eg. Brief of Amici Curiae Climate Scientists David Battisti, er

al. ;

3

regulate greenhouse gas emissions from new motor vehicles under

section 202(a)(1) of the Clean Air Act (the “Act” or “CAA”), 42

U.S.C. § 7521(a)(1) (2000), to address global climate change.’

Petitioners based their request on the argument that EPA had a

“mandatory duty” under the Act to regulate those emissions.

Control of Emissions from New Highway Vehicles and Engines,

Notice of denial of petition for rulemaking, 68 Fed. Reg. 52922,

52923 (Sept. 8, 2003), A-59, A-60. After giving the public an

opportunity to comment on the rulemaking petition and

considering public comments, EPA denied the petition. /d. at

52922-33, A-59 to A-93.

FPA set forth three grounds for its denial of the petition. First,

it determined, based on the Act’s language and legislative history,

other statutes, congressional decisions, and principles of statutory

* Sections 108 and 109 of Title I of the Clean Air Act, 42 U.S.C.

7408-7409, authorize the Environmental Protection Administration (“EPA”)

to set national ambient air quality standards (“NAAQS”) for air pollutants

that cause or contribute to air pollution that may reasonably be anticipated

to endanger public health or welfare and that are emitted by numerous or

diverse sources. Title I] of the Act establishes a regulatory framework for

federal control of pollution from motor vehicles and other mobile sources.

See Clean Air Act, Sections 202-250, 42 U.S.C. 7521-7590. This case

involves Section 202(a)(1) of the Act, 42 U.S.C. 7521(aX1), which

authorizes EPA to “prescribe * * * standards applicable to the emission of

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

motor vehicle engines, which in [EPA’s] judgment cause, or contribute to,

air pollution which may reasonably be anticipated to endanger public health

or welfare.” Section 302 of the Act, 42 U.S.C. 7602, sets forth general

definitions applicable to the Act as a whole. Section 302(g), 42 U.S.C.

7602(g), defines “air pollutant” as “any air pollution agent or combination

of such agents, including any physical, chemical, biological, [or] radioactive

* * * substance or matter which is emitted into or otherwise enters the

ambient air” including any precursors to the formation of such air pollutant.

“(E)}ffects on welfare” is defined to include “effects on soils, water, crops,

vegetation, manmade materials, animals, wildlife, weather, visibility, and

climate, and damage to * * * property, and hazards to transportation, as well

as effects on economic values and on personal comfort and well-being.” 42

U.S.C. 7602(h).

4

interpretation in FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000), that it lacked authority under the Clean Air Act

to regulate greenhouse gas emissions for the purpose of

addressing global climate change. /d. at 52925-29, A-68 to A-79.

EPA also stated that “‘[i]n light of Congress’ attention to the issue

of global climate change, and the absence of any direct or even

indirect indication that Congress intended to authorize regulation

under the Act to address global climate change, it is unreasonable

to conclude that the CAA provides the Agency with such

authority.” 68 Fed. Reg. at 52928, A-78.

Second, EPA found that the only practical way to reduce

tailpipe emissions of CO,, the most prevalent greenhouse gas, is

to improve fuel economy. 68 Fed. Reg. at 52929, A-79 and that

any EPA effort to set CO, tailpipe standards under the Act would

either abrogate EPCA’s regime if the standards were more

stringent than the applicable fuel economy standard or be

meaningless if they were less stringent. /d., A-80, and that even

if the Act authorized it to regulate greenhouse gas emissions to

address global climate change, granting the rulemaking petition

would conflict with Title V of the Energy Policy and

Conservation Act (““EPCA”), 49 U.S.C. §§ 32901-32919, which

authorizes the Department of Transportation to establish fuel

economy standards for motor vehicles. /d. at A-79 to A-80.

Third, EPA determined that, even if the Act did provide EPA

with authority to regulate greenhouse gas emissions to address

global climate change, section 202(a) of the Act -- the provision

at issue in the rulemaking petition -- gives EPA’s Administrator

discretion to determine “in his judgment” whether, based on the

facts before the Agency, the emissions in question “may

reasonably be anticipated to endanger public health or welfare.”

42 U.S.C. § 7521(a)(1), and that the Administrator had never

made a determination under the Act that greenhouse gas

emissions endanger public health or welfare and that the timing

of any such endangerment determination is within the

Administrator’s discretion. 68 Fed. Reg. at 58929, A-80 to A-81.

5

EPA thus determined that, contrary to petitioners’ argument,

it had no mandatory duty to undertake rulemaking.

EPA also found that the scientific evidence before it, including

the National Research Council’s report, Climate Change Science:

An Analysis of Some Key Questions (2001), was “extraordinarily

complex and stilt evolving” and reflected ‘“‘considerable

uncertainty in current understanding of how the climate system

varies naturally and reacts to emissions of greenhouse gases.”” 68

Fed. Reg. at 52930, A-83 (quoting NRC Report). EPA noted that,

given the global nature of atmospheric concentrations of CO,, it

is “extremely difficult to evaluate” to what extent any “effects in

the U.S. would be related to anthropogenic [CO,] emissions in the

U.S.” Id. at 52927, A-73. In light of the scientific uncertainty on

these critical issues, EPA found no basis for making an

endangerment determination and regulating motor vehicles’

greenhouse gas emissions under section 202(a) of the Act. /d. at

52931, A-86 (declining to regulate “[uJntil more is understood

about the causes, extent and significance of climate change”).

EPA concluded that “establishing [greenhouse gas] emission

standards for U.S. motor vehicles at this time would require EPA

to make scientific and technical judgments without the benefit of

the studies being developed to reduce uncertainties and advance

technologies.” /d., A-85.

EPA also denied the rulemaking petition because it determined

that, even if it had authority under the Act to undertake

rulemaking, it had neither an obligation nor a sound basis to do

so.

Petitioners sought review of EPA’s denial by the U.S. Court of

Appeals for the District of Columbia Circuit. Without reaching

the issue whether the Act provides EPA with authority to regulate

for global climate change purposes, a panel of the D.C. Circuit

held, in an opinion by Judge Randolph, that assuming arguendo

that EPA has such authority, EPA properly exercised its discretion

in denying the rulemaking petition. Massachusetts v. EPA, 415

F.3d 50, 56 & n.1, 58 (D.C. Cir. 2005), A-10 & n.1 and A-15; see

also id. 415 F.3d at 61, A-20 (Sentelle, J., concurring in the

6

judgment). Judge Tatel dissented, believing that EPA had

“misinterpreted the scope of its statutory authority” and had

provided a legally inadequate explanation for the petition denial.

Id. at 82, A-58 (Tatel, J., dissenting). In his view, Section

202(a)(1) authorizes the EPA Administrator, in determining

whether a pollutant “in his judgment cause[s], or contribute[s] to,

air pollution which may reasonably be anticipated to endanger

public health or welfare,” only “to determin{e] whether the

statutory standard for endangerment has been met.” /d. at 74.

Moreover, Judge Tatel concluded that the scientific uncertainties

associated with global warming, see id. at 74, the overlapping

responsibilities of the Department of Transportation in setting fuel

economy standards, see id. at 68, and the potential for interference

with the United States’ ongoing nezotiations with other nations,

see id. at 80-81, did not justify EPA’s action.

The court of appeals denied a petition for rehearing en banc.

SUMMARY OF ARGUMENT

Although the relationship between emissions of CO, and its

atmospheric concentration is complex, it is generally agreed that

the combustion of fossil fuels constitutes the primary reason for

the recent increases in the atmospheric CO, concentration.

Although CO, is a very important yreenhouse gas, there are

numerous other greenhouse gases: water vapor, which is

responsible for approximately 35 to 70 percent of the greenhouse

effect far exceeds the contnbution of CO,, which accounts for 10

io 25 percent.

The current case concerns only the emissions of CO, (and

certain other gases) from cars and light trucks, but it is estimated

that approximately one-fourth (25%) of total world emissions

comes from cars and light trucks. Consequently, regulating CO.

emissions from cars would leave about three-quarters of world

emissions unregulated. Regulating ('‘O, emissions based on its

impact on global climate change, should include regulating

emissions from the primary source of CO, emissions which at the

7

present time are from various industrial sources, including

electricity generation using coal, oil and natural gas.

Regardless of the actions of the United States and other

industrial countries, it is estimated that by about 2035 CO,

emissions from countnes not covered by the Kyoto Protocol will

exceed CO, emissions from countries covered by K yoto Protocol.

The need is for a more comprehensive approach than mere

regulation of CO, emissions by new motor vehicles in the United

States. The limited regulation proposed by petitioners would only

have a limited impact on the hypothesized and projected global

climate change resulting from the increases in the atmospheric

concentration of CO,,.

The justification and procedure for regulation of the more

usual air pollutants under the Clean Air Act are logically and —

practically hard to square with control of CO, concentrations.

EPA’s determination was correct because one cannot consider

CO, as an air pollution agent that needs to be controlled in the

way conventional pollutants are controlled.

Even though climate change may well be a problem, it is

the full carbon cycle that needs to be regulated, not merely the

emission of CO,.° Regulating tailpipe emissions from cars and

light trucks under the Clean Air Act to accomplish the goal of

reducing “greenhouse gases” and global warming is the wrong

procedure, will be ineffective, and fails to give the right incentives

either to the other branches of government or to other countries.

Regulating the CO, emissions from automobiles and

light trucks under the Clean Air Act is not the appropriate way to

attempt to control global concentrations of “greenhouse gases”

* The easiest way to see this is to consider biofuels: cars running

on alcohol or biodiesel emit CO, but this CO, does not contribute in a net

way to climate change. In other words, the CO, emission is harmless as long

as it is balanced by CO, capture. Biofuels release carbon that has been

captured by photosynthetic processes a short time prior to its emission.

8

and may well have an economic cost that far exceeds using other

alternatives.°

ARGUMENT

Amici believe that regulating the CO, emissions from

automobiles under the Clean Air Act is not the appropriate way to

attempt to control these global concentrations and may well have

an economic cost that far exceeds using other alternatives.

1. Carbon dioxide is an essential compound for maintenance of

life on earth. Without CO, there would be no ecosystem, no

plants, meaning no nourishment for most animals that are part of

the human food chain, and thus no food for humans. Therefore,

it is not simply the elimination of CO, from the atmosphere, but

maintaining a concentration level that supports animal and plant

life without having an adverse impact on climate and other life

systems. Although, at the present time and in the foreseeable

future, there is no scientifically acceptable method to establish a

precise environmental standard for CO, concentrations, there is

general agreement that it would be wise to limit them or at least

slow their increase.

2. There has been considerable variation in the quantity of

atmospheric CO, due to the equilibrial nature of interacting global

and solar variables. The variation over the past 400,000 years has

ranged from under 200 ppmv to over 300 ppmv. Concentration

of CO, in the atmosphere has increased rapidly during the past

century from about 300 parts per million by volume (ppmvy) to

°* For example, a power plant that uses wood or other biomass as

' a fuel and that captures carbon dioxide and stores it permanently, could be

used to compensate for the fossil carbon consumption on board a vehicle.

Trading two different carbon transactions against each other shows that

simply treating CO, emission from a vehicle’s tailpipe as an emission of a

dangerous pollutant that needs to be eliminated or severely reduced is too

simplistic and could be counterproductive. It could effectively stymie any

development of methods capturing carbon dioxide from the air through

biomass or other means, not because it would not be effective, but because

regulations would not create an incentive for this approach.

9

about 380 ppmy.’ This increase appears similar to the four

previous upswings over the past half-billion years, each of which

was followed by downswings. The major CO, variations occur in

approximately 100,000 yearcycles, and there were approximately

ten smaller cycles within the five major 100,000 year trends.

Combustion of fossil fuels; certain industrial activities;

deforestation and combustion of woods and other organic matter

removed from forests (which “consume” CO, and release O,) add

to the net quantity of CO, in the atmosphere.°

There are also natural sinks for CO, These are primarily

associated with annual growth of plants and year-round uptake by

oceans. The measurements begun by Keeling, ef al.’ at Mauna

Loa, and continuing to the present day, clearly show diurnal

variation in CO, concentrations. Uptake of CO, to the shallow

oceans is relatively fast on a year-to-year timescale’’, whereas the

mixing of the shallow oceans with the very large sink deep oceans

is relatively slow. In fact such sink mixing is slower than the

present rate of increase in atmospheric concentrations and

therefore the absorption of CO, into the deep ocean sink is slower

than the present rate of rise of the concentrations."'

7 National Academy of Science, Committee on Science,

Engineering, and Public, “Public Policy Implications of Greenhouse

Warming,” figure 3.1 at 12 (1991), available at

http://www7_.nationalacademies.org/cosepup/.

* See, e.g.,M.R. Allen., et al., “Quantifying the uncertainty in

forecasts of anthropogenic climate change,” Nature 407 (2000).

* C.D. Keeling, R.B, Bacastiw, A.E. Bainbridge, A. Ekhdahl, R.

Guenther and S. Waterman, “Atmospheric carbon dioxide variations at

Mauna Loa Observatory Hawaii,” 28 Tellus 538-551 (1973).

'° C.D. Keeling, “The Carbon Dioxide Cycle,” in CHEMISTRY OF

THE LOWER ATMOSPHERE (S.I. Raoul, ed.) (1973) .

'' U. S. Environmental Protection Agency, Office of Policy,

Inventory of U. S. Greenhouse Emissions and Sinks, 1990-2004 (EPA 430-

(continued...)

10

3. Although the relationship between emissions of CO, and its

atmospheric concentration is complex, it is generally agreed that

the combustion of fossil fuels constitutes the primary reason for

the recent increases in the atmospheric CO, concentration.'* But

it must be recognized that limiting CO, emissions is not the same

as limiting CO, concentrations.

4. The idea that the earth is a “greenhouse” dates back at least to

the suggestion of Jacques Fourier.'? Laboratory measurements

show that CO, absorbs infrared radiation and therefore can help

create a greenhouse. This hypothesis dates to the work of Tyndall

in 1870s. CO, can therefore in modern parlance loosely be called

a “greenhouse gas (GHG).” The work of Arrhenius showed that

past world temperature changes might be related to CO,

concentration.'* Recent work shows that although CO, is a very

important greenhouse gas, there are numerous other greenhouse

gases. In particular, water vapor (which is responsible for

approximately 35 to 70 percent of the greenhouse effect (this

varies with geographical location) exceeds CO, (which is

probably 10 to 25 percent responsible) in importance. Other gases

responsible for contributing to the greenhouse effect include

methane (5 to 9 percent), chlorofluorocarbons (CFCs), nitrous

oxide (N,O) and numerous other gases. If there were no change

in the concentration of water vapor and other greenhouse gases,

the global-mean surface temperature would increase by T,= 1.2C,

for a static doubling of CO,. This estimate is based upon

"(. continued)

R-06-002) (hereafter “EPA Inventory”) at 7 (2006) .

"? See J.E. Hansen, et al., “Climate forcings in the industrial era,”

95 PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES 753-758 (1998).

' J.A. Fourier, 7 Mem. Acad. Sci. Inst. Fr. 569 (1839).

S. Arrhenius, “On the influence of carbonic acid in the air upon

the temperature of the ground,” 41 Philosophical Magazine 237 (1896).

1]

laboratory data on absorption of infrared radiation by CO, and is

usually considered reliable.’°

Concentrations of atmospheric water vapor are generally

expected to increase with increasing temperature, and since water

vapor is the most important greenhouse gas, this could amplify

warming. It is the estimate of the reliability of this expectation

that creates the biggest uncertainty in the scientific understanding,

and therefore of much of the controversy on the need for

regulation.

Each GHG has an associated Global Warming Potential

(GWP) number. Using CO, as the base (value of 1.00), methane

has a GWP of 21 and SF, has a GWP of 23,900,"° which indicates

the wide range of GWP values. The warming impact of a GHG

is the product of its GHG concentration in the atmosphere and its

GWP.

Another important issue is the technically defined residence

time of an atmospheric gas. This is basically the measurement of

the estimate of the tenure ofa gas in its beginning molecular form.

Like GWP, residence times vary among compounds. The

residence time of a GHG is important for the assessment of its

impact. For example, whereas the residence time of water vapor

in the atmosphere is short and highly variable, the residence time

of CO, is estimated to range from 50 to 800 years, depending

upon the assumptions about certain variables -- primarily

associated with the time for ocean mixing -- used in the

calculations, as noted above.

5. The statements in point (4) above have been confirmed by

laboratory experiments. Specifically, these indicate that higher

concentrations of CO, in a greenhouse are associated with higher

temperature if all other conditions (most importantly the energy

'S National Academy of Sciences, Committee on Science,

Engineering, and Public Policy, “Policy Implications of Greenhouse

Warming” (1991), available at http://www7 nationalacademies.org/cosepup/

‘© EPA Inventory, Table 1-2, at 7 (2006).

12

input) remain constant.'’ In a vast over-simplification, the past

global temperature rise was often referred to as the “greenhouse

effect.” Other observations indicate that the earth's greenhouse is

affected by other complex interactions of the Earth and the solar

18

system.

'? “Tt can be said with a high level of confidence that global mean

surface temperature was higher during the last few decades of the 20th

century than during any comparable period during the preceding four

centuries. This statement is justified by the consistency of the evidence from

a wide variety of geographically diverse proxies. Less confidence can be

placed in large-scale surface temperature reconstructions for the period from

A.D. 900 to 1600. Presently available proxy evidence indicates that

temperatures at many, but not all, individual locations were higher dunng

the past 25 years than during any period of comparable length since A.D.

900. The uncertainties associated with reconstructing hemispheric mean or

global mean temperatures from these data increase substantially backward

in time through this period and are not yet fully quantified.” National

Academy of Sciences, Board on Atmospheric Sciences and Climate,

SURFACE TEMPERATURE RECONSTRUCTIONS FOR THE LAST 2,000 YEARS

(2006).

'* These include variability in the output of the Sun itself. This

issue is far from settled (see Foukal, et al., “Variations in Solar Luminosity

and Their Effect on the Earth’s Climate,” 443 Nature 161-166 (2006)) and

is not concerned exclusively with the quantity of energy radiated from the

sun, but is also concerned with the spectral changes in solar output. For a

comprehensive treatment of solar variability. (see D.V. Hoyt and K.H.

Schatten, THE ROLE OF THE SUN IN CLIMATE CHANGE (1997)). A recent

paper provides experimental data to support this hypothesis. H. Svensmark,

J.0.P. Pedersen, N.D. Marsh, M.B. Enghoff, U.I. Uggerhej, “Experimental

Evidence for the Role of Ions in Particle Nucleation Under Atmospheric

Conditions,” 462 Proceedings of the Royal Society A: Mathematical,

Physical and Engineering Sciences 1773 (Oct. 3, 2006), available at

http://www.journals. royalsoc.ac.uk

((Shelzf4S5nxp3va5 Seoguqt5 5)/app/home/contribution.asp?referrer=paren

t&backto=issue, | 2,46;journal, ] , 1 33;linkingpublicationresults, }:102023,1.

This paper suggests that the ions are active in generating an atmospheric

reservoir of small thermodynamically stable clusters, which are important

for nucleation processes in the atmosphere and ultimately for cloud

formation.

13

6. CO, emissions from mobile sources (i.e. transportation)

constitute about one-third of the total world CO, emissions.'® The

current regulatory issue, of course, concerns only the emissions of

CO, from cars and light trucks. Since all transportation consists

of much more than cars and light trucks and includes heavy

trucks, trains, air transportation and other sources, it is estimated

that approximately one-fourth (25%) of total world emission

comes from cars and light trucks. Consequently, regulating CO,

emissions from cars would leave about three-quarters of world

emissions unregulated. )

7. If we consider the maximum reasonable estimate of the

contribution of CO, to the greenhouse effect (50 percent), then 25

percent (from car and truck transportation) of 50 percent, or only

12.5 percent theoretically maximal reduction would be achieved

by limiting tailpipe CO, emissions from passenger cars and light

trucks. We could achieve this theoretical 12.5 percent reduction

only if we reduced car and truck emissions of CO, to zero, which

is impracticable.”” Moreover, other estimates of the contribution

of CO, to the greenhouse effect range from 9 to 26 percent,”"

which would mean that the total reduction in greenhouse gas from

completely eliminating emissions from cars and light trucks

would be from just over 2 percent (.09 x .25) to 6.5 percent (.26

x .25). Furthermore, as noted above, regulating CO, emissions

from cars not only would leave 75% of the CO, emissions

unregulated, it would have no effect on the varying quantity of

naturally occurring CO,,.

'’ EPA Inventory, Table ES-3 at ES-7 (2006). Transportation

constitutes 1,860.2 out of the total of 5,656.6 TgCO,Eq, or 32.88%.

?° National Academy of Science, Commission on Engineering and

Technical Systems, “Automotive Fuel Economy: How Far Can We Go?”

(1992) (available at http://www7_.nationalacademies.ore/deps/>CETS).

See, e.g. J.T. Kiehl, J. T., K.E. Trenberth, “Earth’s Annual

Global Mean Energy Budget,” °78 (2) Bulletin of the American

Meteorological Society 197-208 (1997).

14

Regulating CO, emissions based on its impact on global

climate change should include regulating emissions from the

primary sources of CO, emissions, which at the present time are

various industnal sources, including electricity generation using

coal, oil and natural gas. Moreover merely asking the

manufacturers to modify their cars is only a partial, and indirect,

solution to this problem. Those who buy cars should also be

encouraged not to use them. It is well known that ordinary people

are strongly influenced in their actions by price.” In principle the

analysis of effects and costs should be based on consideration of

the entire system or process, not just on the tailpipe emissions of

a car or light truck.”

A more inclusive solution would, for example, be an increase

in gasoline taxes, accompanied by a decrease in other taxes to

make the system revenue neutral. This would give appropriate

incentives to all sectors of the economy. A more inclusive carbon

tax, which would apply to all fuels and processes that emit CO,,

would be preferable. Microeconomists have argued that such a

procedure would be stimulating to the economy.”*

2 See P.F. Ricci, ENVIRONMENTAL RISK ASSESSMENT AND

MANAGEMENT: PRINCIPLES AND PRACTICESt (2006); see also P. F. Ricci,

“Mortality, Air Pollution, and Energy Production: Uncertainty and

Causality,” 116 /. Energy Engineering 148 (1990) .

** See L.A. Cox and P.F. Ricci, “Health-Risk Assessment:

Production of Electricity,” 116 J. Energy Engineering 130 (1990); A.

Kalelkar, J. Fiksel, P.F. Ricci, and T.L. Cox, “Occupational Risks of Energy

Production,” 24 Nuclear Safety 459 (1983); P.F. Ricci, “Mortality, Air

Pollution, and Energy Production: Uncertainty and Causality,” supra, n. 21.

* D.W. Jorgensen, and P.J. Wilcoxen, “Reducing U.S. Carbon

Dioxide Emissions: the Cost of Different Goals,” John F. Kennedy School

of Government, Center for Science and International Affairs, Discussion

Paper 91-9 (1991). Professor Jorgensen testified before the Senate

Committee on Environment and Public Works (July 10, 1997): “Our overall

conclusions are, first, that a carbon tax is superior to other tax instruments.

Second, by using the revenues to reduce the most burdensome taxes, namely

taxes on income from capital, economic growth can be stimulated rather

(continued...)

15

Those who advocate regulating motor vehicle CO, emissions

in the United States based on its impact on global climate change

logically should seek to reduce significantly emissions from all

sources of CO, emissions of into the atmosphere, which, as

indicated, includes industrial sources, and electricity generation

using coal, oil and natural gas. Credit should also be given to

those who provide a sink for CO,

8. Regardless of the actions of the United States and other

industrial countries, it is estimated that by about 2035 CO,

emissions from countries not covered by the Kyoto Protocol will

exceed CO, emissions from countries covered by the Kyoto

Protocol.” This emphasizes the need for a more comprehensive

approach than mere regulation of motor vehicles CO, emissions

in the United States. The regulation proposed by petitioners

would only have a limited impact on the hypothesized and

projected global climate change resulting from the increases in the

atmospheric concentrations of CO,.*° This could only be

*4(. continued)

than retarded. . . . To sum up: The economics of climate change is well

understood. The optimal policy... .involves a modest reduction in the growth

of greenhouse gas emissions. This should provide the basis for any

international agreement that would supersede the United Nations Framework

Convention of 1994. However, this involves smaller reductions than our

existing climate policy, the U.S. Climate Change Action Plan.” Professor

Jorgensen’s testimony can be found at

http://epw.senate. gov/105th/jorg07 1 0.htm,

5 In fact, “... two-thirds of the carbon dioxide emissions in this

century are expected to come from developing countries. . .” based on the

Intergovernmental Panel on Climate Change ["IPCC"] “Business-As-Usual”

or “mid-range” model (Is92a), IPCC, Third Assessment Report,

Intergovernmental Panel on Climate Change, Technical Summary of the

Working Group I Report of the Intergovernmental Panel on Climate Change

(2001). See U. S. Department of Energy, Framework for an Energy Security

and Climate Stabilization Strategy at 10 and Fig. S10 (2004).

26 There is no mention, either in Petitioners’ Brief or in the brief

of the Climate Scientists, David Battisti, et al., of ways of dealing with the

(continued...)

16

rationalized as an example for all other countries emitting CO,,

but it is not a practical way of dealing with greenhouse gases or

global climate change. A more direct and inclusive method of

control of concentrations is necded than that authorized by the

Clean Air Act, and would involve many national jurisdictions.

9. It is important to understand the technical rationale for

regulating atmospheric gases andcther compounds. Specifically,

the emission limits for an air pollutant established by the EPA are

overwhelmingly based on one of the following considerations:

a. The compound is a hazardous air pollutant and is regulated

on the fundamental claim that it causes adverse human

health or other adverse eifects at some organic level.

Concerns about pollution often have led to appeals for zero

concentration of the pollutant. This obviously cannot be

achieved, but there is a National Emission standard for

Hazardous Air Pollutant (NESHAP) for each of these

pollutants. CQO, is not a hazardous air pollutant in this

sense.”’ It occurs naturally, is produced by animal and

*(...continued)

global problem, except to acknowledge that when Congress has addressed

the issue, it has done so in terns of calling for further research and other

nonregulatory measures, see, ¢.g., Pet. Br. at 23, nor is there any analysis or

even estimate of the impact on worldwide greenhouse gas emissions or

global warming of the rulemaking they advocate.

? Of course, as the renowned sixteenth century German-Swiss

alchemist and physician Paracelsus (Theophrastus Philippus Aureolus

Bombastus von Hohenheim) (sometimes called the father of toxicology)

explained, “All substances are poisons; there is none which is not a poison.

The right dose differentiates a poison and a remedy.” See Doull & Bruce,

“Origin and Scope of Toxicology,” in CASARETT & DOULL'S TOXICOLOGY:

THE BASic SCIENCE OF POISONS (3d cd. 1986). Succinctly put, “[t}he dose

makes the poison.” National Bank of Commerce v. Assoc. Milk Producers,

Inc., 22 F. Supp.2d 942, 958 (E.D. Ark. 1998); see also FOUR TREATISES OF

‘THHOPHRASTUS VON HOHENHFIM (H. E. Sigerist, ed.) (1941); see also W.

Pagel, Paracelsus (2d ed. 1982). In other words, the amount of a substance

to which a person is exposed is as important as the nature of the substance.

(continued. .}

17.

human respiration and metabolism, and is essential for

plant life. It would obviously be impossible and wrong-

headed to even aim for zero emissions of CO,, although a

national net zero emissions level might be possible when

emission and sequestration of CO, are averaged. It would

be unrealistic to develop a NESHAP for CO, Moreover,

since CO, is CO, regardless of its source, any theoretical

decision to develop a NESHAP for CO, would have to

include at least the larger sources of CO, emissions, notably

industrial coal and other fossil fuel power plants, and thus

a large segment of industry. In fact, to establish a NESHAP

for only one source of CO, would create an unusual, and

probably undesirable, precedent for regulation.

*"(...continued)

For example, small doses of aspirin can be beneficial, but at very high doses

this common medicine can be injurious or even fatal.

Thus while it is true that "The dose makes the poison,” that

- proposition has no relevance to a discussion of the nature of CO, because

there is no likelihood that atmospheric CO, concentrations will reach a level

that will create a health risk, let alone reach a level that would be itself toxic.

A study of nine nuclear ballistic submarines reported average CO, at 3,500

ppm with a high recording of 10,600 and for ten nuclear attack submarines,

an average of 4,100 ppm with a peak of 11,300 ppm, yet during the usual

months-long deployments of nuclear submarines, this continuous exposure

had no adverse effects. See R. Hagar, “Submarine Atmospheric Control and

Monitoring Brief for the COT Committee, Presentation at the First Meeting

on Emergency and Continuous Exposure Guidance Levels for Selected

Submarine Contaminants” (2003) While it is true that submarine crews are

composed of young, healthy men, the research is clear that CO, is not

problematic until its concentration reaches about 28,000 ppm, and there one

begins to see slight headaches, and “...the bulk of the data indicate a

no-observed-adverse-effect level (NOAEL) for CO2 of about 25,000

ppm..." National Academies, Board on Environmental Studies and

Toxicology, EMERGENCY AND CONTINUOUS EXPOSURE GUIDANCE LEVELS

FOR SELECTED SUBMARINE CONTAMINANTS 40 (2004). Average

atmospheric CO,, even at 800 ppm, is of course much more than an order of

magnitude less. (For the emission scenario IS92a, see supra, n. 22, the IPCC

estimates that the atmosphere will contain slightly more than 700 ppm(v)

carbon dioxide in the year 2100.)

18

b. All regulated pollutants have a National Ambient Air

Quality Standard (NAAQS). Because NAAQS pollutants

have multiple sources, EPA has developed emission

standards to ensure that NAAQS for specific pollutants are

not exceeded. Ifa decision were made to regulate CO., the

first step would be to develop a NAAQS. That would be a

difficult task which would involve extensive preliminary

work. The difficulty is that CO, is emitted from numerous

sources not only in the United States but also elsewhere.

For its NAAQS to be effective, EPA would have to regulate

global industry and motor vehicle use, which is beyond

EPA’s jurisdiction or influence. Regulation of a only one

source, and a small part, of global CO, emissions in an

indirect way, 1s not effective or appropriate.

c. The toxic pollutants presently regulated under the Clean Air |

Act create a Jocal, or in a few cases regional, hazard. In

contrast emissions of CO, add to the global average CO,

concentrations. Moreover while the accumulation of CO,

in the air poses a risk of climate change, the emissions of

CO, from a particular car, may or may not contribute to this

danger. They do contribute in a net sense if the car is

burning petroleum that has been taken from the ground and

no other action is taken. They do not contribute to this

danger if a chemically identical fuel has been made from

biomass which collected CO, from the air and through

photosynthesis converted it into an energy rich form. They

do not contribute, if the owner of the car or the purveyor of

the fuel provides for carbon capture elsewhere in the world

economy, as long as this capture reduces net carbon

emissions to the atmosphere by an amount that is at least

equal to the amount of CO, that has been emitted. It is thus

not appropriate to refer to CO, emitted from vehicle

tailpipes as a “dangerous pollutant.”

19

The justification and procedure for regulation of the more usual

air pollutants under the Clean Air Act are logically and practically

hard to square with control of CO, concentrations.”

10. A power plant that uses wood or other biomass as a fuel and

that captures carbon dioxide and stores it permanently could be

used to compensate for the fossil carbon consumption by a

particular vehicle. Again, this method of trading two different

carbon transactions, perhaps in different parts of the world,

against each other shows that simply treating CO, emissions from

a tailpipe as an emission of a dangerous pollutant that needs to be

eliminated is too simplistic and could be counterproductive. For

example, it could effectively stymie development of technologies

for capturing carbon dioxide from the air (through biomass or

other means), not because they would not be effective, but

because regulations would create a disincentive for this approach

being used.

11. The automobile standards mandated by Congress in 1979

have played a part in reducing CO, emissions. It seems to amici

to be inappropriate to use the courts to modify this legislation in

an indirect way through the courts when Congress is obviously

capable of doing so if and when American people so desire.

There is an urgent need to develop a coherent and scientifically

valid process that controls or limits CO, concentrations while

addressing the energy needs of the world population Such a

process should also provide for a technology system that can be

applied globally Eventually the control of CO, concentrations

must be based on an international agreement that includes all

** The attempt-in-Petitioners’ Brief to use the example of

chloroflurocarbons (CFCs) which were believed to be responsible for a

reduction in ozone concentrations in the upper atmosphere with many

undesirable effects is misplaced. CFCs were gradually phased out in the

United States and elsewhere in the world. That phase-out was made

possible when the world's major producers of CFCs had an alternative

available at modest cost and agreed with the phase-out. However in the

view of amici, affordable control of CO, concentrations would necessitate

a more direct approach which might ultifnately have to include the

sequestration of CO,,.

20

nations and provides for the legitimate desires of developing

countries to develop their respective industries and acquire a

reasonable living standard. Amici submit that developing such a

procedure is the role of Congress and the Executive, not of the

courts. So far, neither the executive branch of government nor

Congress has decided to take this step or give guidance to

American people or American business. Petitioners’ Brief may be

useful in focusing attention on the problem, but it does so without

increasing understanding of the intricacies of the issue and is

likely to be counterproductive and inhibit an adequate approach

to the problem.

12. While acase might be made for addressing such aspects of the

full solution as can be addressed at the present moment, it is

probable that addressing solutions that only address a part of the

problem may end up by being far more expensive for society than

addressing the problem -- CO, concentrations -- in a more direct,

simpler, and inclusive way.”

Regulation of CO, emissions from passenger cars and light

trucks has several drawbacks. First, as pointed out above, it may

rule out or at least deter entire classes of solutions because they

cannot be couched in the terms of an old regulation which was

meant for pollutants whose emission should be prevented, not a

compound whose accumulation in the atmosphere should be

managed. Secondly, and equally important, the central challenge

in making carbon management work is to- obtain public

acceptance of the new regulatory regime that is to be adopted.

From this perspective, it would be extremely counterproductive

to have a regulatory agency impose an incomplete solution that

intrudes on daily life and may be unjustifiably costly.

Proposals for world regulation that provide incentives for

development of the needed scientific and technological

development have been made. A comprehensive proposal,

including carbon sequestration, has recently becn submitted to

*? Jorgensen and Wilcoxen, supra note 11.

21

the Norwegian Government by an official commission headed by

Joergen Randers of the Norwegian School of Management.” In

essence, since carbon is extracted from the earth at a limited

number of places, and since most of it becomes CO, within a

relatively short time, this might suggest an even more inclusive

and possible method of control.”’

While amici have considerable sympathy for the goal of

stabilizing or reducing carbon emissions, they believe that

regulating tailpipe emissions from motor vehicles under the Clean

Air Act to accomplish these goals is the wrong procedure, will be

. ineffective, and fails to give the right incentives either to the other

branches of government, to the industry, or to American people

as a whole.

Amici believe that the court of appeals correctly upheld EPA’s

decision not to regulate motor vehicle tailpipe emissions of CO,

and other gases because section 202(a)(1) of the Act, 42 U.S.C.

7521(a){1) expressly conditions the establishment of motor

vehicle emissions standards on a discretionary exercise of the

Agency’s “judgment” as to whether air pollution related to motor

vehicle emissions “may reasonably be anticipated” to endanger

public health or welfare. Because that provision expressly invokes

the Administrator’s “judgment,” it provides EPA with discretion

*° Report of the Norwegian Commission on Low Emissions, “NOU

2006:18: A climate-friendly Norway,” October 4, 2006, English language

summary available at http://www.lavutslipp.no/article_1334.shtml. This

report suggests a comprehensive approach, only a small part of which

involves automobiles and light trucks.

** See K.S. Lackner, R.Wilson and H-J Ziock, "Free-Market

Approaches to Controlling Carbon Dioxide Emissions to the Atmosphere:

a Discussion of the Scientific Basis,” Global Foundation Conference on

"Global Warming and Energy Policy” at 31-46 (American Institute of

- Physics, Kursunuglu, Mintz and Perlmutter, eds., 2000) (report of a

conference held in 1999).

22

in deciding whether and when an endangerment finding can or

should be made in the first instance.

That circuit court’s case law consistently reflects the

established administrative law principle that a federal agency’s

decision -- based on the facts and given the circumstances before

it -- to decline a request to institute rulemaking proceedings is

given a high degree of deference. Such a decision should be

overtumed “only in the rarest and most compelling of

circumstances.” WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C.

Cir. 1981); American Horse Protection Ass 'n v. Lyng, 812 F.2d

1, 4-6 (D.C. Cir. 1987) (denials of rulemaking petitions entitled

to “high end” of range of deference). Indeed, “an agency’s refusal

to initiate a rulemaking is evaluated with deference so broad as to

make the process akin to non-reviewability.” Cellnet

Communications, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C. Cir.

1992). As the D.C. Circuit has held, “there are very few cases in

which courts have forced agencies to institute rulemaking

proceedings on a particular issue after it has declirred to do so.”

WWHT, 656 F.2d at 817, 818 (quoting Action for Children’s

Television, 564 F.2d 458, 472 n.24 (D.C. Cir. 1977).

EPA’s denial of the rulemaking petition in this case was

reasoned. The record before EPA and the circuit court enabled

that court to “assure itself that the agency considered the relevant

factors, that it explained the ‘facts and policy concerms’ relied on,

and that the facts have some basis in the record.” American Horse

Protection Ass 'n v. Lyng, 812 F.2d 1, 5. EPA provided a full

explanation of its reasons for denying the petition in the Federal

Register. 68 Fed. Reg. at 52922-33, A-59 to A-93. The

Administrative Procedure Act requires that an agency, in denying

a petition for rulemaking, give “a brief statement of the grounds

for denial”; 5 U.S.C. § 555(e) (2000) (emphasis supplied).

The mere fact that petitioners disagree with the Agency’s

conclusion does not mean it was not “reasoned,” that EPA failed

to explain the facts and policy concerns it relied on, or that the ~

facts relied on lack some basis in the record.

23

The Agency identified a number of reasons -- including, but

not limited to, what it perceived as the complex and uncertain

nature of the scientific record and its wish to have the benefit of

further research -- for its conclusion that even if it had authority

to regulate greenhouse gas emissions from motor vehicles, an

endangerment finding would be inappropriate at this time.*? As

the D.C. Circuit stated in Ethyl Corp. v. EPA, 541 F.2d 1, 20n.37

(en banc), cert. denied, 426 U.S. 941 (1976), the “express

provision for administrative discretion via the ‘judgment’ phrase

fin section 202(a)(1)of the Act] is necessary” precisely because

that section requires EPA to initiate regulation once it makes a

determination of “endangerment” to health or welfare. 541 F.2d

at 20 n.37.

EPA’s decision also took into account other legal and policy

implications of any decision to initiate regulatory action at this

time. Petitioners argue that “The existence of uncertainty is not

a bar to regulation or an excuse for inaction and that an agency

cannot defer action while it waits for scientific certainty.“

Petitioners’ Brief at 41.

Nevertheless, the circuit court properly found no basis to

disturb EPA’s denial of the petition because an endangerment

*? Amici do not concur in EPA’s reliance on the alleged uncertainty

about global warming and its possible impact on society. There is no doubt

that CO, levels in the atmosphere have risen faster than at any time in

history and there is little doubt that the average world temperature has been

increasing, probably as a consequence. There is a dispute about the exact

amount of the increase and whether that increase will go on for 1,000 years

or level off before then. However, there is much more doubt on the effect

of such a temperature rise on the world’s ecosystem. These doubts should

not inhibit the adoption of a comprehensive system for understanding and

cautiously regulating the overall problem of combustion of carbon-based

fuels. But we believe that the Agency’s ultimate decision not to regulate at

this time, and the circuit court’s sustaining of that determination, were

correct because regulation of motor vehicle tailpipe emissions only in the

United States would be ineffective and inefficient, and because an

“endangerment” finding would mandate such regulation.

24

determination under the Act “‘is necessarily a question of

policy....’” 415 F.3d at 58, A-15 (quoting Fthy/, 541 F.2d at 24).

The Agency’s conclusion that an endangerment determination

is not appropriate at this time was properly upheld by the court of

appeals because such a finding would mandate regulation, even

though regulation might be ineffective or even

counterproductive.”

Effectively increasing fuel economy standards would be the

only way EPA could attempt to limit vehicle emissions of carbon

dioxide, but such EPA regulation would conflict with the separate

statutory scheme that Congress carefully developed and expressly

crafted to address fuel economy standards, under which a division

of the Department of Transportation is responsible for such

standards. Sve id. 68 Fed. Reg. 5229-33. As the Agency noted,

the rulemaking petition made “no suggestion” as to how

emissions of the three greenhouse gases other than carbon dioxide

that were the subject of the rulemaking petition might be reduced

from motor vehicles. ” 68 Fed.Reg. at 52,931, Pet. App. Al4.

Petitioners do not explain in their bricf to this Court how this

might be achieved.

EPA cited other policy reasons that provide support fo: its

decision to deny the rulemaking petition. 68 Fed. Reg. 52929-33,

A-82 to A-92. Petitioners assert that EPA may not consider

policy reasons under section 202 of the Act at all and that FPA’s

consideration of these reasons in this case impermissibly tainted

the Agency’s decision. Pet. Br. at 35-38. The circuit court

properly rejected petitioners’ argument, holding that “Congress

does not require the Administrator to excercise his discretion solely

on the basis of his assessment of scientific evidence.” 415 F.3d at

58, A-13 (citing Ethyl, 541 F.2d at 20); see id., A-15 (“as we have

held, a reviewing court ‘will uphold agency conclusions based on

* Petitioners incorrectly asse:t that “A judgment in favor of

petitioners will not mandate regulation of air pollutants associated with

climate change, nor will it dictate a particular answer to the question

whether such pollutants are endangering public health or welfare.” Pet. Br.

at 3. If that assertion is correct, then this case would seem to be pointicss.

25

policy judgments’ ‘when an agency must resolve issues “on the

frontiers of scientific knowledge”’”) (quoting Environmental

Defense Fund v. EPA, 598 F.2d 62, 82 (D.C. Cir. 1978)); Ethyl, -

541 F.2d at 26 (“the statute accords the regulator flexibility to

assess risks and make essentially legislative policy judgments”);

WWHT, 656 F.2d at 818 (“The agency’s determination is

essentially a legislative one, and the reviewing court should do no

more than assure itself that the agency acted ‘in a manner

calculated to negate the dangers of arbitrariness and

irrationality.””) (quoting Action for Children ’s Television, 564

F.2d at 472 n.24); NRDC v. SEC, 606 F.2d 1031, 1046 (D.C. Cir.

1979)(“An agency’s discretionary decision not to regulate a given

activity is inevitably based, in large measure, on factors not

inherently susceptible to judicial resolution. . . .””) (emphasis in

original). .

Petitioners err in contending (Pet. 22-26) that further review is

warranted because of the asserted urgency of the environmental

issues involved. EPA, and amici, have never suggested that

global climate change is not an important issue worthy of focused

attention in the United States and in the world community. The

EPA described in its decision in this case a variety of efforts that

the federal government is currently undertaking to “effectively

and efficiently address the climate change issue over the long

term.” Pet. App. at A82-A93. Those efforts, and others that could

follow, are better tailored to address this worldwide issue than is

the ill-suited regulatory machinery of the Clean Air Act, which

could deal with only a small and isolated part of the problem, and

ineffectually at that.

“26

CONCLUSION

The decision of the Court of Appeals should be affirmed.

Respectfully submitted,

MARTIN S. KAUFMAN*

* Counsel of Record

Atlantic Legal Foundation

Counsel for Amici Curiae

60 East 42nd Street

New York, NY 10165

(212) 867-3322

October 2006

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APPENDIX A

AMICUS BIOGRAPHICAL INFORMATION

ERNEST L. DAMAN is Chairman Emeritus of Foster

Wheeler Development Corporation where he previously served as

Director of Research and Chairman of the Board. He also held

the position of Senior Vice President at the parent company,

FWC. He is a Past President of American Society of Mechanical

Engineers and was elected to the National Academy of

Engineering. Ernest Daman is a Fellow of the Institute of Energy

(England) and the American Association for the Advancement of

Science, and Past Chairman of the American Association of

Engineering Societies. He served on several American Society of

Mechanical Engineers committees as member or chairman.

Ernest Daman is the author of numerous papers and holds 18

patents. He was responsible for the design and devélopment of a

combined steam gas turbine plant, fluidized bed combustion, fast

breeder reactor components, supercritical steam generators,

environmental control processes, and advanced high-efficiency

power generation systems. Ernest Daman received his B.M.E.

degree from the Polytechnic Institute of Brooklyn.

TOM A. HENDRICKSON is an independent consultant in the

fields of energy, engineering, and technology. His career

encompassed service to both government and industry. He was a

Senior Executive of Raytheon Federal Engineers & Constructors,

developing high technology projects. He was Principal Deputy

Assistant Secretary of the Office of Nuclear Energy at the U.S.

Department of Energy, where he oversaw programs including:

Civilian Reactor Development; the Naval Nuclear Propulsion

Program; Uranium Enrichment; Space and Defense Power

Systems; Isotope Production; and Nuclear Safety Policy. He later

became the Director of the New Production Reactors for the U.S.

Department of Energy, responsible for designing and building

new tritium production capacity for nuclear weapons; research

and development; safety and environmental compliance; and

construction. Concurrently, he served as Acting Under Secretary

of Energy responsible for all defense and nuclear energy activities

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of the department. Early in his career, he served on the staff of

the Atomic Energy Commission in Washington, DC. He directed

the headquarters staff and contractors involved in submarine

nuclear propulsion engineering, including research, development,

design, and construction of all new design nuclear powered

submarines and land-based prototypes. During this period, he

also served as Project Officer for all new submarine developments

including the NR-1; the USS Los Angeles SSN-688 class of 62

attack submarines, and the electric drive submarine. He helped

with the development of port-entry safety procedures and sea

trials of the United States’ first nuclear-powered surface ships, the

USS Long Beach and the USS Enterprise; as well as the first

refueling of the Shippingport Atomic Power Station. He is a

member of the American Nuclear Society, the American Society

of Mechanic:. Engineers, and the American Physical Society.

Mr. Hendrickson received a B.A. degree in Physics from Harvard

College and an M.S. degree in Physics from Georgetown

University. He is a licensed Professional Engineer.

NATHAN H. HURT is a consultant in management and

engineering with Technical and Management Consulting. He

provides services to industrial firms and government agencies

involved in environmental clean-up and waste management—both

chemical and radioactive. He has extensive experience in the

areas of executive management; plant management; engineering

management; project management; marketing; and sales. He

specializes in the areas of uranium enrichment/production;

engineering; development and marketing; plant management of

rubber chemicals; petrochemicals; and thermoplastics. He also

specializes in the engineering management of synthetic rubber and

lattices; vinyl monomers and copolymers; polyesters; U.S.

Department of Energy (DOE) weapons plants; quality assurance

management; and operational readiness review. Mr. Hurt has

been involved with the decommissioning of nuclear facilities. He

was the Corporate Sponsor or Program Manager for seven

decommissioning contracts at the DOE Complexes in Oak Ridge,

TN; and Pinellas, FL. Previously, Mr. Hurt was Director and

Project Manager at the Oak Ridge Office of Sharp and Associates,

Inc. He was Vice President and Director of Oak Ridge Operations

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for IDM Environmental Corp., where he was responsible for the

marketing and sales of decontamination, decommissioning, and

waste management services. He served as Project Manager for

the laboratory quality assurance program at Westinghouse

Hanford and at DOE’s Rocky Flats Plant. He managed a study for

a waste treatment and storage facility at the Portsmouth Area

Uranium Enrichment Facility which included incineration and

compaction of low-level radioactive wastes. He also worked for

Goodyear Tire and Rubber Company, including Goodyear

Atomic, as Director of Research and Development, and President,

where he was responsible for the operation of the Portsmouth

Area Uranium Enrichment Facility. Nathan Hurt is a Past

President of the American Society of Mechanical Engineers. He

has been a member of: the American Association of Engineering

Societies’ Board of Governors; the American Institute of

Chemical Engineers; and the Institute of Nuclear Materials

Management. He is also a member of Tau Beta Pi Honorary

Engineering Society, Pi Tau Sigma Honorary Mechanical

Engineering Society; he was a member of The Nuclear

Engineering Advisory Board of Worcester Polytechnic Institute.

Mr. Hurt received a B.S. degree in Mechanical Engineering from

the University of Colorado and has done graduate, technical, and

management course work at Pennsylvania State University.

KLAUS S. LACKNER joined the faculty of Columbia

University in 2001, where he is now the Ewing-Worzel Professor

of Geophysics in the Department of Earth and Environmental

Engineering. He has been a scientist in the Theoretical Division

of Los Alamos National Laboratory since 1983, and also has been

part of the Laboratory's senior management. He held several

positions, among them Acting Associate Laboratory Director for

Strategic and Supporting Research, which represents roughly a

third of Los Alamos National Laboratory. Professor Lackner’s

scientific career started in the phenomenology of weakly

interacting particles. He and George Zweig developed the

chemistry of atoms with fractional nuclear charge while searching

for quarks. He is still participating in matter searches for particles

with a non-integer charge in an experiment conducted at Stanford

by Martin Perl and his group. After joining Los Alamos National

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Laboratory, Professor Lackner became involved in hydrodynamic

work and fusion related research. In recent years, he has

published on the behavior of high explosives, novel approaches to

inertial confinement fusion, and numerical algorithms. His

interest in self-replicating machine systems has been recognized

by Discover Magazine as one of seven ideas that could change the

world. Professor Lackner is currently developing innovative

approaches to energy issues of the future. He has been

instrumental in forming ZECA, the Zero Emission Coal Alliance,

which is an industry-led effort to develop coal power with zero

emissions to the atmosphere. Professor Lackner’s recent work is

on environmentally acceptable technologies for the use of fossi!

fuels. He holds degrees from Heidelberg University, Germany;

Vordiplom, (B.S.) in 1975, Diplom (M.S.) in 1976, and Ph.D. in

theoretical particle physics, summa cum laude, in 1978, and he

won the Clemm-Haas Price for outstanding Ph. D. thesis at

Heidelberg University. Professor Lackner attended ihe Cold

Spring Harbor Summer School on Computational Neuroscience,

1985. He held postdoctoral positions at the California Institute of

Technology and the Stanford Linear Accelerator Center before

joining Los Alamos National Laboratory in 1983.

DENNIS K. McBRIDE is President of the Potomac Institute

for Policy Studies, , anon-partisan, academic think tank providing

science and technology policy expertise to the administration and

the Congress. He is also a Research Professor at the Krasnow

Institute for Advanced Study at George Mason University, an

affiliated professor at the Georgetown University Public Policy

Institute and at the Georgetown University Medical Center. Dr.

McBride was previously the Executive Director, Institute for

Simulation and Training at the University of Central Florida and

professor of in the College of Engineering and Computer Science

and in the College of Arts and Sciences. Dr. McBride completed

a 20-) ear Naval career as a Naval officer/scientist with the grade

of Captain, Medical Service Corps and flight test engineer. He

earned gold wings in 1980, and his tours included bench-to-

management science and technology at five Naval laboratories,

three major headquarters organizations (including the Office of

Naval Research (ONR) and the Defense Advanced Research

A-5

Projects. Trained as a flight test engineer at the University of

Tennessee Space Institute, Dr. McBride was selected by the Navy

as a mission specialist astronaut. Dr. McBride has led or

participated in numerous National Research Council, National

Academies studies, and he has published and/or presented more

than 120 papers, including his most recent book, in several fields

of science, engineering, and medicine. He served as Editor-in-

Chief for Review of Policy Research, and he currently is Co-

Editor-in-Chief for Technology in addition to serving on several

editorial boards for academic journals. Dr. McBride earned a B.S.

in Psychology (concentration in biological psychology) from the

University of Georgia, an M.S. in Experimental and Differential

Psychology (concentration in statistical methodology) from the

University of Georgia, a Ph.D. in Experimental Psychology

(concentration in mathematical leaming theory) from the

University of Georgia, an M.S./M.P.A. in Public Policy from Troy

State University (concentrating on government sponsorship of

R&D), an M.S. in Systems from the University of Southern

California (focusing on probabilistic and deterministic modeling).

A. ALAN MOGHISSI is President of the Institute for

Regulatory Science (RSI), a non-profit organization dedicated to

the idea that societal decisions must be based on the best available

scientific information. The activities of the Institute include

research, scientific assessment, and science education at all levels-

particularly the education of minorities. Dr. Moghissi held

positions at the U.S. Public Health Service and, upon its

formation, the U.S. Environmental Protection Agency (EPA). He

served in a number of capacities at EPA, including Director of the

Bioenvironmental/Radiological Research Division; Principal

Science Advisor for Radiation and Hazardous Materials; and

Manager of he Health and Environmental Risk Analysis Program.

After his retirement from the EPA, Dr. Moghissi joined the

University of Maryland at Baltimore as Assistant Vice President

for Environmental Health and Safety; subsequently he was

Associate Vice President for Environmental Health and Safety at

Temple University in Philadelphia, Pennsylvania. He has been a

visiting professor at Georgia Tech and at the University of -

Virginia. Dr. Moghissi's research has dealt with diverse subjects,

A-6

ranging from measurement of pollutants to the biological effects

of environmental agents. A major segment of his research has

been on scientific information upon which laws, regulations, and

judicial decisions are based -- notably risk assessment. Dr.

Moghissi’s research has included biological and environmental

kinetics, but increasingly with the development and

implementation of the concept of Best Available Science (BAS)

in societal — including regulatory — decisions. He has published

over 300 papers and several books. He was the editor-in-chief of

Environment International and Waste Management and editor-in-

chief of Technology traces its roots to the Journal of The Franklin

Institute, one of America's oldest continuously published journals

of science and technology. Dr. Moghissi is a member of the

editorial board of several other scientific journals. He is a

member of the Advisory Committee of the Environmental

Engineering Division of the American Society of Mechanical

Engineers. Dr. Moghissi also serves on the U.S. National

Commission for UNESCO, a Federal Advisory Committee to the

Department of State that provides expert advice to the State

Department on issues of Education, Science, Communications and

Culture. Dr. Moghissi received his education at the University of

Zurich, Switzerland, and Technical University of Karlsruhe,

Germany, from which he received a doctorate in physical

chemistry.

HAROLD W. OLSEN isa Research Professor in the Division of

Engineering and the Department of Geology and Geological

Engineering at the Colorado School of Mines. His research

includes the development and application of new experimental

capabilities for geotechnical measurements. These measurements

are on undisturbed core samples that provide experimental control

on the chemistry and degree of saturation of soil pore fluids and

on arbitrary stress and strain paths. The measurements minimize

the need for replicate specimens. The hazards of interest include:

landslides; subsidence; expansive soils; and subsurface

contamination. He is also a Scientist Emeritus of the U.S.

Geological Survey, where he supports geologic and environmental

hazard investigations, and his research involves interrelationships

among the geologic characteristics of unconsolidated earth

materials and their geomechanical and hydrologic properties.

Additionally, he is currently working on a National Aeronautics

and Space Administration contract through the University of

Colorado entitled /dentification and Mapping of Expansive Clay

Soils in the Western U.S. Using Field Spectrometry and A VIRIS

Data; and a National Science Foundation grant entitled The

Importance of Osmosis in the Volumetric Behavior of Earth

Materials. Professor Olsen has worked as a Research Civil

Engineer at the U.S. Geological Survey Engineering Geology

Branch and Earthquake and Landslide Hazards Branch, where he

conducted reviews of geotechnical aspects of Preliminary Safety

Analysis Reports concerning proposed nuclear reactor sites for the

Atomic Energy Commission, and contnbuted to the development

of geotechnical capabilities for the Branch Energy Lands

Program. Additional projects included both physicochemical and

physical phenomena that can increase the vulnerability of ground

to failure with time, and that can be used to strengthen and

stabilize weak or failed ground; these phenomena include

chemical causes of groundwater movement, and chemical and

saturation effects on the permeability, compressibility, and

strength ofargillaceous materials. Professor Olsen has worked as

a Geotechnical Consultant in the U.S. Geological Survey

Technical Assistance Programs in Peru, Indonesia, and

Bangladesh. He is an expert on soil properties and behavior, and

the application of geotechnical data to studies of terrestrial and

marine environments. Professor Olsen is a member of the

American Society of Civil Engineers (ASCE) Geo-Institute

Committee on Technical Publications, and Editor-In-Chief of the

ASCE Joumal Geotechnical and Geoenvironmental Engineering.

His current professional society activities include membership in

the Organizing Committee for the ASCE Geo-Institute

Conference; Organizing Committee for an Expansive Soil

Research Center at the University of Colorado, Denver; Awards

Committee, Geotechnical Engineering Division, ASCE; ASCE

Committee on Engineering Geology; American Society for

Testing and Materials Committee D-18 on Soil and Rock for

Engineering Purposes; and Highway Research Board Committee

A2L03 on the Physicochemical Properties of Soils. He has

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authored or coauthored over 100 papers, reports, and conference

contributions. Professor Olsen received S.B., S.M., and Sc.D.

degrees in Civil Engineering from the Massachusetts Institute of

Technology.

PAOLO F. RICCI is currently both Research Professor

Environmental Science at the University of San Francisco, CA

and Honorary Professor at the University of Queensland, NRCET,

Brisbane, Australia. Over the last 20 years, he has taught

graduate courses in epidemiology, risk assessment and

management, and applied economics in Thailand, Italy,

Philippines, China, Hungary and several other countries as well

as the United States. Professor Ricci has been Associate

Professor at Stanford University and at U.C.L.A. (School of

Public Health) and an Adjunct Full Professor of Law at the

University of California-at Berkeley. From 1994 to 2000, he was

Associate Professor (equivalent to U.S. Professor) of Public

Health and Head of the Risk Analysis Unit (New South Wales

Department of Health, Sydney), as well as Professor (equivalent

to US Professor with Chair) at the University of Wollongong

(Faculty of Law), Australia; he has also been Faculty Scholar at

Lawrence Livermore National Laboratory. Professor Ricci has

been the Head of the Technology Clearinghouse of the

IEA/OECD). In the last four years, he has served as a peer

reviewer of the United States Department of Energy (DOE)

activities regarding the human health risks from past nuclear and

thermonuclear tests at the Nevada Test Site, and in the reviews of

other DOE activities at their facilities, including Hanford nuclear

reactor sites. Professor Ricci has led and conducted qualitative

and quantitative analyses and experimental work, for

approximately 30 years, in the United States, Canada, Italy,

Australia, France, Vietnam, China, and the European Union. He

has reviewed national water guidelines, in the context of the

Federal Drinking Water Guidelines for 1995, for the Australian

Federal Government. Professor Ricci is a member of the

American Association for the Advancement of Science. He

served on the Australian National Medical Research Council —the

key federal Australian committee that governs medical and health

scientific research for Australia — and chaired sections and

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presented papers at national and international conferences dealing

with air and water pollution. He was Guest Editor of the

American Society of Civil Engineers’ Journal of Energy

Engineering, Environment International, and the Journal of

Hazardous Waste Management. Professor Ricci has written and

edited five books. He has authored more than 100 scientific

publications in journals such as Science; Environmental Science

and Technology; Environment International; Environmental

Research; the Journal of the Air and Waste Management

Association; the Medical Journai of Australia; and several other

international peer-reviewed journals. He has also published

several law review articles. Professor lk .cci holds an M.A. degree

in Economics from Temple University, an LL.M degree from

Leicester University, U.K., an M.P.A. degree from the Kennedy

School of Government at Harvard University, and Ph.D. and

M.Sc. degrees in Engineering and Sciences from Drexel

University.

PETER P. ROGERS is Gordon McKay Professor of

Environmental Engineering and Professor of City and Regional

Planning in the Division of Engineering and Applied Sciences at

Harvard University. He is a member of the Technical Advisory

Committee of the Global Water Partnership and a recipient of

Guggenheim and Twentieth Century Fellowships. Profussor

Rogers has carried out extensive field and model studies on

population, water and energy resources, and environmental

problems in Costa Rica, Pakistan, India, China, the Philippines,

Bangladesh and, to a lesser extent, in 25 other countries. His most

recent work has focused on the relationship between Chinese

electric power developments and their impact on global warming.

Recent books include: AMERICA'S WATER: FEDERAL ROLES AND

RESPONSIBILITIES, A Twentieth Century Fund Book (1993);

WATER IN THE ARAB WORLD: PERSPECTIVES AND PROGNOSES

(1994); MEASURING ENVIRONMENTAL QUALITY IN ASIA (1997),

SUSTAINABILITY (2005). Professor Rogers received his B.

Engineering (1958) from the University of Liverpool, his M.S. in

Engineering (1961) from Northwestern University and his Ph.D.

in Engineering (1966) from Harvard University.

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CHARLES O. VELZY is a consultant in the field of waste

treatment and disposal. Previously, he held increasingly

responsible positions with the environmental consulting

engineering firm, Charles R. Velzy Associates, Inc., becoming

President in 1976. In 1987, when Velzy Associates merged with

Roy F. Weston, Inc., Charles Velzy became Vice President of

Weston, a position which he held until retiring in 1992. He has

over 35 years of experience as an environmental engineering

consultant specializing in: the analysis of waste management

problems; design of wastewater treatment and waste disposal

systems; and design of new, retrofit of existing, testing, and

permitting of waste combustion facilities. He has authored or co-

authored over 80 publications — primarily in the field of solid

waste management. He has served on the Science Advisory

Board of the U.S. Environmental Protection Agency; as President

of the American Society of Mechanical Engineers (ASME); Chair

of the ASME Peer Review Committee; and as Treasurer of the

American Academy of Environmental Engineers (AAEE). He has

served on numerous committees of the ASME, the AAEE, the

American National Standards Institute, and the American Society

for Testing and Materials. He is a registered professional

engineer in New York and eleven other states. Charles Velzy

received B.S. degrees in Mechanical and Civil Engineering, and

an M.S. in Sanitary Engineering from the University of Illinois at

Urbana-Champaign.

RICHARD WILSON is Mallinckrodt Research Professor of

Physics at Harvard University and immediate past Director of the

Regional Center for Global Environmental Change at Harvard

University. He is an Affiliate of the Center for Science and

International Affairs and the Center for Middle Eastern Studies at

Harvard University. Professor Wilson is a past Chairman of the

Department of Physics at Harvard University, a past chairman and

currently a member of the Cyclotron Operating Committee. He

is a founder of the Society for Risk Analysis. He is and has been

a consultant to the United States government and the governments

of numerous foreign countries on matters of nuclear safety,

toxicology, epidemiology, public health and safety and risk

assessment. Professor Wilson’s areas of expertise include

A-ll

elementary particle physics, radiation physics, chemical

carcinogens, air pollv*ion, ground water pollution by arsenic, and

human rights. He is the author of many articles on high energy

physics, environmental pollution and misk analysis, including

PARTICLES IN OUR AIR, EXPOSURES AND HEALTH EFFECTS (with

Editor John Daniel Spengler) (Harvard University Center for Risk

Analysis, 1986) and RISK-BENEFIT ANALYSIS (with Edmund A.

C. Crouch) (Harvard University Center for Risk Analysis, 2™ ed.

2001). Professor Wilson is the author or co-author of more than

880 published papers on subjects including atomic particles,

radioactive particle decay, shielding of particle accelerators and

nuclear reactors, nuclear energy production, health risks of

nuclear power plant accidents, risk benefit analysis, public health,

acute toxicity and carcinogenic risk, carcinogenicity bioassays,

statistical distributions of health risks, cancer risk management,

health effects of electromagnetic fields, risks and health impacts

of radiation, risks of nuclear proliferation and global energy use

and global warming.