Amicus Curiae Brief — Massachusetts v. EPA

No. 05-1120 tig

In The

Supreme Court of the Anited States

¢

COMMONWEALTH OF MASSACHUSETTS, e¢ ai.,

Petitioners,

V.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

¢

On Writ Of Certiorari To The

United States Court Of Appeals For

The District Of Columbia Circuit

°

BRIEF OF AMICUS CURIAE STATE

OF DELAWARE IN SUPPORT OF PETITIONERS

S

*CARL C. DANBERG

Attorney General of Delaware

DEPARTMENT OF JUSTICE

820 N. French Street -

Wilmington, Delaware

Telephone: (302) 577-8400

*Counsel of Record

[Additional Counsel Listed On Signature Page]

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

1. Whether the EPA erred when it decided that it lacks

authority to regulate Greenhouse Gas emissions from non-

point automobile sources under Section 202(a)(1) of the

Clean Air Act, 42 U.S.C. § 7521(a)(1)?

2. Whether the EPA arbitrarily and capriciously refused

to regulate Greenhouse Gases under Section 202(a)(1) of

the Clean Air Act, 42 U.S.C. § 7521(a)(1)?

3. Whether Delaware has a particular interest in the

prompt federal regulation of Greenhouse Gases?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............ccccssseecceeeeseereees i

RAR CE BUF ERE Bi vies cnnnscscnsssocccsesevcsveesesoesses iv

INTEREST OF THE AMICUS CURIAE ................... 1

AUTHORITY FOR FILING A BRIEF OF AMICUS

SII deschivsisiadhiuiaiacistinsosiscnsecilbckiashigiduinnsicametininnnendbeniaslias 1

SET IID Sechincnvciniicbacecsijthisiishebadtintiasubinieniiantiiies 2

"REIT RS en ne eT aE eee 2

TTI \cishiisentdsennmienicisontllintinasiestnseptdniansiguecninhitienals 3

SUMMARY OF THE ARGUMENT.............-:se0se00s0000 6

SERGE aie Sea eee »

I. THE CLEAN AIR ACT AUTHORIZES EPA

TO REGULATE GREENHOUSE GAS EMIS-

SIONS FROM MOTOR VEHICLES ............... 8

A. The Unambiguous Language Of § 202(a)(1)

Of The Clean Air Act Provides That EPA

May Regulate Greenhouse Gas Emis-

sions From Motor Vehicles And Motor

EE I cnddpasdericiiiinenyestscubeteceiensies 8

B. The Counter-Textual Arguments Offered

By EPA Are Unconvincing.................0.+0++ 11

1. Congress Was Concerned With Cli-

mate Change And Did Intend To

Regulate Greenhouse Gases When

Drafting The Clean Air Act............ bia Sa

2. EPA Does Not Need Separate Stat-

12

utes To Regulate Greenhouse Gases ...

ili

TABLE OF CONTENTS -— Continued

Page

3. EPA Inappropriately Relied On FDA

v. Brown & Williamson In Determin-

ing It Does Not Have Authority To

Regulate Greenhouse Gases ............... 13

4. EPA Has In The Past Recognized Its

Ability To Regulate Substances Caus-

ing Climate Change, Specifically

Greenhouse Gases Emitted By Motor

Vehicles And Motor Vehicle Engines

Under § 202(a)(1) Of The Clean Air

SED sdnussndaeamicmncnncnndpiaamabanidasdbimasslaiediibees 15

5. Interagency Conflict With The United

States Department Of Transportation

Does Not Prohibit EPA From Regulat-

I, scipcnsnisiisitetamsdndsicenmmiblasipaadbeinaiaee 16

II. EPAS DECISION NOT TO REGULATE

GREENHOUSE GASES WAS ARBITRARY

TY bin diicestsisenpenmnsstidithiinandoses 17

A. Scientific Uncertainty Is Not Great Enough

To Prevent An Endangerment Finding......... 19

B. Scientific Uncertainty Is Not A Factor

EPA May Use In Making An Endanger-

I SN caida ceccemtddncninpnapaiaiidebeternnicees 23

III. DELAWARE HAS A PARTICULAR INTER-

EST IN THE PROMPT FEDERAL REGU-

LATION OF GREENHOUSE GASEG.............. 25

ITN vcccrecssoceesnitnnsoceshanebtpienstminmenmesisteenirs 26

iv

TABLE OF AUTHORITIES

Page

CasEs: U.S. SUPREME COURT

BedRoc Ltd., L.L.C. v. United States, 541 U.S. 176

GIT antccscsnrcccosesteccessntinpepenidpnsagsaietnnbeieieiiaienaanrn 9

Chevron U.S.A., Inc. v. National Resources Defense

Commas, 467 UB. GBT (ID scscccsnssccvstsisccsisendiotiasannianeiiias 7

Diamond v. Chakrabarty, 447 U.S. 303 (1980).............+. 12

FDA v. Brown & Willie nson Tobacco Corp., 529

REE. BID IID iiscnssccctncidcccistisisiibidinthieeanbanal 4, 8, 12, 13, 14

Hartford Fire Ins. Co. v. California, 509 U.S. 764

COIRIID i cvicsccunsiscsssticindiiicidsinssetnaaiiadstetadiiniadiieidaiadas 24

Murray v. Schooner Charming Betsy, 6 U.S. 64

i ESTs ERD Oe CaO LB None BROS dew se EY 24

PGA Tour v. Martin, 532 U.S. 661 (2001)................cceee 12

Weinberger v. Rossi, 456 U.S. 25 (1982) ...........ccccceeeeeeeeeeee 24

Whitman v. American Trucking Association, 531 -

TIA, GRE CD i eciscccasicsnrsits tcseliteiciiiisinctnechstiittiiaaainpaiiaiaiainadai 11

CasEs: U.S. CouRT OF APPEALS

American Forest & Paper Ass’n v. EPA, 294 F.3d

BED GL. Clee FD ecieccccinssccchsihenincnedoerenaciilatecetinciatindiiapaaiibiadie 2

Ethyl Corp. v. Environmental Protection Agency,

G61 F-De 3 GG. Cope GUD chcevincscosesinitenintitatwevessns 4, 8,18

Her Majesty the Queen in Right of Ontario v. EPA,

913 F.2d 1526 (D.C. Cir. 1666) ..0csccscocreescoscsccecvesssesseseesoss 2

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

reh’g denied, 433 F.3d 66 (D.C. Cir. 2005)............. passim

Natural Resources Defense Council, Inc. v. EPA, 824

SE 1966 GC. Cle. SEIIPP peccecencccavcccvenseesessenssscsssmmessens 11

v

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

SEI Ee vs Se RP 24

UNITED STATES STATUTES

Administrative Procedure Act, 5 U.S.C. § 706.................. 17

EEC ESTED I A RC NT ee ODE 2

A TS SE ee a a 2

Clean Air Act, 42 U.S.C. § 7401 et seq. ..............0ccce0s passim

Energy Policy Act of 1992, 42 U.S.C. § 13201................... 13

Energy Policy and Conservation Act, 49 U.S.C.

i ssa tebdipetincantncinien 12, 16

Global Climate Change Research Act of 1990, 15

RE TITS ETE BOI MAE 13

National Climate Program Act of 1978, 15 U.S.C.

REESE en RE Se one Ce ee 13

STATE STATUTES

Cal. Health & Safety Code § 43018.5(a) ..........c.cce00000+: ioanll

13 Cal. Code of Reg. §§ 1900, 1961, 1961.1..............0...... 6

UNITED STATES REGULATIONS

Control of Emissions from New Highway Vehicles

and Engines, 68 Fed. Reg. 52922 (Sept. 8, 2003)............ 3

COURT RULES (

STI Ie CRO 1,2

TABLE OF AUTHORITIES -— Continued

Court DOCUMENTS

Complaint, Association of International Automobile

Manufacturers v. Sullivan, No. 06-69T (D.R.L.)

First Amended Complaint, Central Valley Chrysiler-

Jeep, Inc. v. Witherspoon, No. Civ.-F-04-6663-

AWI-LJO (E.D. Cal.) (2004)...........cccccsessesersenseeseenes

Complaint, Green Mountain Chrysler-Plymouth-

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

GEE neocinnncennnnsttinnabantsieniedcetennnsinlistaiiaenegliteiibcieanstsends

LEGISLATIVE HISTORY

Gary S. Guzy, General Counsel of the EPA, Testi-

mony Before a Joint Hearing of the Subcommit-

tee on National Economic Growth, Natural

Resources, and Regulatory Affairs of the Com-

mittee on Government Reform and the Subcom-

mittee on Energy and Environment of the

Committee on Science, U.S. House of Represen-

tatives (Oct. 6, 1999) (available at http://www.

house.gov/science/guzy_100699.htm) (last visited

OTHER AUTHORITIES

The Columbia Encyclopedia, 6th Ed. (2006) Dela-

ware (available at http://;www.encyclopedia.com/

htm/l/D/Delawar-st.asp) (last visited August 28,

GED ncecscuecsnccinscncemnpesnesensanventenenssasimnnpnpnnancsbuees Suamieies

vii

TABLE OF AUTHORITIES — Continued

‘Page

Delaware Judicial Information System, DELJIS

Database (2005) (last visited August 26, 2006) ................. 26

Delaware State Police TraCS System (2005) (last

visited August 26, 2006) .............. vtiesiblidibeiiidiipiaineartiipamnnaneet 26

Michael DuRoss, Planning Supervisor, Delaware

Department of Transportation, Division of Plan-

ning, 24 Hour Daily or Average Annual Daily

Traffic (AADT Report) (August 22, 2006)................000+ 26

Christopher Giovinazzo, Defending Overstatement:

The Symbolic Clean Air Act and Carbon Dioxide,

30 Harv. Envtl. L. Rev. 99 (2006) ........5.......cccccceeeeeeeeees 18

Jonathan M. Gregory et al., Threatened Loss of the

Greenland Ice Sheet, 428 Nature 616 (2004)................ 25

Hassol, Susan Joy, Arctic Council, Impacts of a

Warming Arctic: Arctic Climate Impact Assess-

I inrienicianGiariorereicininipitiiinamipiinienpibeitipimitie 20

Intergovernmental Panel on Climate Change

(IPCC), Working Group I Report, Climate

Change 2001: The Scientific Basis (2001) (avail-

able at http://www.grida.no/climate/ipcc_tar/wgl/

index.htm) (last visited August 29, 2006)............... 20, 21

Intergovernmental Panel on Climate Change, Third

Assessment Report (2001), Working Group II

EET TIITTET ichediccmtrecntnnstintabitbangtorandiaienadioatese 10

Memorandum from Jonathan Z. Cannon, General

Counsel of the EPA, to Carol M. Browner, Admin-

istrator of the EPA (April 10, 1998) ..000..........ccceeeeeeeees 15

viii

TABLE OF AUTHORITIES - Continued

Page

Memorandum from Robert E. Fabricant, General

Counsel, to Marianne L. Horinko, Acting Adminis-

trator, “EPA’s Authority to Impose Mandatory Con-

trols to Address Global Climate Change under

the Clean Air Act (August 28, 2003) (available at

http//www.epa.gov/airlinks/co2petitiongememo8-28.

pdf) (last visited August 22, 2006) .................::..sesseeeee. 16

National Academy of Sciences, Natural Resources

Council, Climate Change Science: An Analysis of

Some Key Questions (2001) ...............000+. 19, 20, 21, 22, 23

State of Delaware, Delaware Geography (2006)

(available at http://www.state.de.us/gic/delfacts/

geo.shtml#elevation) (last visited on August 28,

TIED docicasyuicheaencuntguapiiilitihiasigestgtounedaibenicanipniipoanibaiiiaptnicess 25

United Nations Framework Convention on Climate

Change, Art. 3, 4; May 29, 1992, U.N. Doc.

A:AC.237/18 (1992), reprinted in 31 I.L.M. 849

| ERED 1 ee Rana er Soe eS Pee OD 23, 24

U.S. Geological Survey, Sea Level and Climate

(2000) (available at http://pubs.usgs.gov/fs/fs2-

00/) (last visited on August 28, 2006)...............:cseeeceeeee 25

1

INTEREST OF THE AMICUS CURIAE

The State of Delaware is greatly concerned about the

impact of global warming on its citizens. As a low-lying

coastal state, Delaware experiences daily the effects of

global warming. These effects include increased flooding

and coastal erosion, increased ocean temperature, and

heightened damage to the environment, the property and

the people of Delaware.

The Clean Air Act (CAA) provides Delaware with little

flexibility in limiting the impact of Greenhouse Gases from

motor vehicle emissions. California is the only state

granted authority to set emission standards for automo-

biles. 42 U.S.C. § 7543(a). While Delaware could adopt,

pursuant to 42 U.S.C. § 7507, the more stringent stan-

dards promulgated by California, the standards would

only apply to motor vehicles registered in Delaware. Data

indicate that Delaware lacks actual ability to enforce such

a regulation over a large portion of the automobiles driv-

ing within and traveling through the State, as they are

registered in and regulated by sister states. EPA should

fulfill its statutory obligation to enforce the provisions of

the Clean Air Act in a manner that is protective of the

environment of all the states and territories.

s

AUTHORITY FOR FILING »

A BRIEF OF AMICUS CURIAE

Authority to file this brief is provided under Supreme

Court Rule 37.4, which provides in pertinent part that “no

motion for leave to file an amicus curiae brief is necessary if the

brief is presented on behalf of ... a State, Commonwealth,

2

Territory, or Possession when submitted by its Attorney

General.” Sup. Ct. R. 37.4.

¢

OPINIONS BELOW

The decision of the Court of Appeals is reported at 415

F.3d 50 (D.C. Cir. 2005). The Court of Appeals’ order

denying Petitioners’ motion for rehearing en banc is

reported at 433 F.3d 66 (D.C. Cir. 2005).

+

JURISDICTION

The judgment of the Court of Appeals was entered on

August 15, 2005. The Court of Appeals’ order denying the

petition for rehearing and rehearing en banc was entered

on December 2, 2005. Jurisdiction in this Court is proper

under 28 U.S.C. & 1254(1) and 28 U.S.C. § 1251(b)(2) as an

action between the United States and one or more of the

several states. Jurisdiction in the Court of Appeals for the

District of Columbia was proper under § 307(b)(1) of Clean

Air Act, 42 U.S.C. § 7607(b)(1), which grants exclusive

authority over “nationally applicable regulations promul-

gated, or final actions taken, by the Administrator.” Denial

of a petition is a final agency action for purposes of

§ 307(b)(1).’

* See, e.g., American Forest & Paper Ass'n v. EPA, 294 F.3d 113

(D.C. Cir. 2002); Her Majesty the Queen in Right of Ontario v. EPA, 912

F.2d 1525 (D.C. Cir. 1990).

3

STATEMENT

In October 1999, the International Center for Tech-

nology Assessment (ICTA), along with other concerned

organizations, petitioned EPA requesting the agency to

promulgate rules that would regulate Greenhouse Gas

emissions — emissions of carbon dioxide (CO,), methane

(CH,), nitrous oxide (N,O), and hydrofluorocarbons (HFCs)

- from new motor vehicles. ITCA claimed that EPA had

the duty to regulate Greenhouse Gases based on the

statutory authority contained in § 202(a)(1) of the Clean

Air Act which provides that the “Administrator shall

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 his judg-

ment may reasonably be anticipated to endanger public

health or welfare.” 42 U.S.C. § 7521(a)(1). ICTA noted that

EPA had already determined CO, to be an air pollutant in

a 1998 memorandum authored by the then-General

Counsel to EPA, and that the various sections of the CAA

create a statutory duty for EPA to regulate Greenhouse

Gas emissions from new motor vehicles.

Following a notice and comment period and after

reviewing the comments, EPA denied the petition in

September 2003. Control of Emissions from New Highway

Vehicles and Engines, 68 Fed. Reg. 52922-23 (Sept. 8,

2003) (hereinafter CENHVE). As the basis for denial, EPA -

asserted that its review of the legislative history and other

Congressiona! enactments led it to conclude that “the CAA

does not authorize regulation to address global climate

change,” and that if statutory authority does exist to allow

* EPA contends that Congress was well aware of global climate

change at the time of the last comprehensive amendments to the CAA

(Continued on following page)

4

regulation of Greenhouse Gases under the CAA, EPA

would in any event decline to regulate due to policy con-

siderations. The policy considerations included scientific

uncertainty, President Bush’s comprehensive global

climate change policy, and the potential foreign policy

implications of regulating Greenhouse Gases. Id. at 52925.

In denying the petition, EPA did not follow its statutory

duty to prescribe standards to regulate pollutants that

“may reasonably be anticipated to endanger public health

or welfare.”

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

States Court of Appeals for the D.C. Circuit delivered a

divided opinion which sidestepped the issues of whether

Petitioners have standing and whether EPA has the ability

to regulate Greenhouse Gas emissions under the CAA.

Massachusetts v. Environmental Protection Agency, 415 F.3d

50, 56 (2005). Writing for the Court, Judge Randolph as-

sumed arguendo these two issues before finding that EPA

properly exercised its authority not to regulate Gieenhouse

Gas emissions under § 202(a)(1) of the CAA, 42 USC.

§ 7521(a)(1). Massachusetts v. Environmental Protection

Agency, 415 F.3d at 56. Nor did the Court address EPA’s

claim that FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 159 (2000) prohibited EPA from taking on a large

government program without specific statutory authority.

The Court ruled that under its previous decision in Ethyl

and did not specifically authorize regulation at that time. Jd. at 52926.

EPA likewise contends that enactments like the Energy Policy and

Conservation Act - which granted authority to regulate fuel economy

standards to the Department of Transportation - made clear that

Congress was withholding the ability to regulate Greenhouse Gases

under the CAA. /d.

5

Corp. v. Environmental Protection Agency,» EPA had

leeway to consider-“policy decisions” in deciding whether

to regulate Greenhouse Gas emissions and that EPA had

properly exercised its judgment in denying the petition.

Massachusetts v. EPA, 458 F.3d at 58.

Judge Sentelle concurred in the judgment of the

Court, citing entirely different reasoning. Jd. at 59 (Sen-

telle, J. concurring). He opined that Petitioners failed to

establish harm sufficiently particularized to themselves to

fulfill Article III standing. Id. at 59-60. Amici State of

Delaware agrees with the arguments made in sister Amici

States’ Brief that Petitioners established harm sufficiently

particularized to themselves to establish Article III stand-

ing.

In dissent, Judge Tatel disagreed with both Judge

Sentelle’s assertion that Petitioners failed to show a

sufficiently particularized injury, id. at 64-65, and Judge

Randolph’s conclusion that EPA has acted properly in

denying the petition. The dissent opined that EPA had

regulatory authority under § 202(a)(1) of the CAA and that

EPA's refusal to regulate was improper insofar as it was

not based on the regulatory framework provided in

§ 202(a)(1) of the CAA. Massachusetts, 415 F3d at 74-82.

Since the denial of the petition by EPA, California has

petitioned EPA for a waiver in order to adopt its own

emissions standards for motor vehicles, as it is permitted

to do under § 209(b) of the CAA, 42 U.S.C. § 7543(b). The

California Air Resources Board, pursuant to § 43018.5 of the

California Health & Safety Code, promulgated regulations

* Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1 (D.C.

Cir. 1979).

6

setting limits on the amount of Greenhouse Gas emissions

that can be released from motor vehicles sold in California

starting with model year 2009.

Ten other states (Connecticut, Maine, Massachusetts,

New Jersey, New York, Oregon, Pennsylvania, Rhode

Island, Vermont,;-and Washington) have so far adopted

California’s Greenhouse Gas emissions standards pursu-

ant to § 177 of the CAA. 42 U.S.C. § 7507. In December

2004, suit was brought by a group of car manufacturers

against the State of California on various grounds includ-

ing an allegation that EPA’s decision that Greenhouse Gas

emissions cannot be regulated under § 202(a)(1) of the

CAA preempts the California regulation because Califor-

nia cannot adopt standards altogether inconsistent with

the CAA.° Similar lawsuits have been filed in two other

states that adopted California’s standards.°

S

SUMMARY OF THE ARGUMENT

The Clean Air Act specifically authorizes EPA to

regulate “air pollutants” that endanger public health or

“welfare,” a term which explicitly includes “climate.”

Emitted Greenhouse Gases cause global climate change

and thereby are included under the substances capable of

* See 13 Cal. Code of Reg. §§ 1900, 1961, 1961.1 (2005).

* See First Amended Complaint, Central Valley Chrysler-Jeep, Inc.

v. Witherspoon, No. Civ.-F-04-6663-AW1-LJO (E.D. Cal.), 19 9(b), 47-51,

122-23 (2004).

* See Complaint, Association of International Automobile Manufac-

turers v. Sullivan, No. 06-69T (D.R.1.) (2006); Complaint, Green

Mountain Chrysler-Plymouth-Dodge-Jeep v. Torti, No. 2:05-CV-302 (D.

Vt.) (2005).

7

regulation under the Clean Air Act. EPA misread the plain

and unambiguous language of the Clean Air Act when it

determined that it lacked authority to regulate Green-

house Gas emissions from motor vehicles and motor

vehicle engines. EPA’s erroneous reading is not entitled to

the far-reaching deference granted under Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, because Chev-

ron deference is not appropriate when the meaning of the

statute is clear. Chevron U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984). Further, in ignoring

the language of the statute, EPA did not carry its burden

under Engine Manufacturers Association v. EPA, 88 F.3d

1075 (D.C. Cir. 1996), to provide an extraordinarily con-

vincing justification that Congress did not intend the plain

meaning of the statutory wording. The clear language of

§ 202(a)(1), coupled with definitions elsewhere in the Act,

allow, and in fact require, EPA to regulate Greenhouse Gas

emissions from motor vehicles and motor vehicle engines

once a finding that Greenhouse Gas emissions may rea-

sonably be anticipated to endanger public health and

welfare has been made. Amici State of Delaware has an

interest in EPA fulfilling its statutory obligation to regu-

late Greenhouse Gas emissions because, even if Delaware

were able to enact its own emission standards (an action

currently prohibited under § 177 of the Clean Air Act,

42 U.S.C. § 7507), Delaware would still be greatly im-

pacted by the emissions from out-of-state vehicles travel-

ing within Delaware that are beyond its regulatory reach.

Moreover, EPA acted arbitrarily and capriciously in

refusing to regulate Greenhouse Gas emissions from motor

vehicles and motor vehicle engines. The CAA requires EPA

to utilize the regulatory structure provided under

§ 202(a)(1) of the Clean Air Act. Instead, EPA chose to rely

8

upon policy decisions to deny the petition. EPA did not

make a finding as to whether Greenhouse Gases “may

reasonably be anticipated to endanger the public health or

welfare.” The only time for EPA to utilize its judgment

under § 202(a)(1) of the Clean Air Act is when making-a

finding as to whether Greenhouse Gas emissions from

motor vehicles and motor vehicle engines “may reasonably

be anticipated to endanger public health and welfare.” As

EPA declined to do this, the denial of the petition is arbi-

trary and capricious. Furthermore, EPA misreads this

Court’s decisions in FDA v. Brown & Williamson, 529 U.S.

120 (2000), and Ethyl Corp. v. Environmental Protection

Agency, 541 F°d 1 (D.C. Cir. 1976), as permitting a regu-

latory agency to rely on policy decisions in lieu of following

the unambiguous language of statute.

¢

ARGUMENT

I. THE CLEAN AIR ACT AUTHORIZES EPA TO

REGULATE GREENHOUSE GAS EMISSIONS

FROM MOTOR VEHICLES.

A. The Unambiguous Language Of § 202(a)(1) Of

The Clean Air Act Provides That KPA May

Regulate Greenhouse Gas Emissions From

Motor Vehicles And Motor Vehicle Engines.

EPA misread the clear language of § 202(a)(1) of the

Clean Air Act, 42 U.S.C. § 7521(a)(1), in determining that

it does not have the authority to regulate Greenhouse Gas

emissions from motor vehicles and motor vehicle engines.

EPA’s authority to do so is based on the plain and unambi-

guous language of § 202(a)(1), which states in pertinent

part:

9

The Administrator shall by regulation prescribe

(and from time to time revise) in accordance with |

the provisions of this section, standards applica-

ble to the emission of any air pollutant from any

class or classes of new motor vehicles or new mo-

tor vehicle engines, which in his judgment cause,

or contribute to, air pollution which may rea-

sonably be anticipated to endanger public health

or welfare.

42 U.S.C. § 7521(a)(1).

A court’s inquiry into the meaning of a statute begins

with the statutory text, and “ends there as well if the text

is unambiguous.” BedRoc Ltd., L.L.C. v. United States, 541

U.S. 176, 183 (2004). The text in the case at bar is unam-

biguous. Thus, this Court’s inquiry into the meaning of

§ 202(a)(1) is limited to this unambiguous language. A

close reading of § 202(a)(1) provides that EPA “shall by

regulation 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.” 42 U.S.C. § 7521(a)(1) (emphasis added).

Greenhouse Gases are “air pollutants” within the

meaning of “air pollutants” covered by this section as

chemical substances emitted into ambient air:

The “air pollutants” subject to regulation un-

der § 202 are defined as “any air pollution agent or

combination of such agents, including any physical,

chemical, biological, radioactive ... substance or

matter which is emitted into or otherwise enters

the ambient air.”

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

10

One of the Greenhouse Gases at issue here, CO,, is

specifically included within the definition of air pollutants.

Clean Air Act § 103(g), 42 U.S.C. § 7403(g).

Moreover, “welfare” in this context includes considera-

tion of climate because it is defined as follows:

“all language referring to effects on welfare

includes, but is not limited to, effects on soils,

water, crops, vegetation, manmade materials,

animals, wildlife, weather, visibility, and climate,

damage. to and deterioration of property, and

hazards to transportation, as well as effects on

economic values and on personal comfort and

well-being, whether caused by transformation,

conversion, or combination with other air pollut-

ants.”

Clean Air Act § 302(h), 42 U.S.C. § 7602(h).

Thus, from the text of § 202(a)(1), and the definitions

applicable to that section, it is clear that EPA is authorized

to regulate Greenhouse Gas emissions, since Greenhouse

Gases are substances emitted into the air that endanger

climate.’

EPA is delegated the responsibility in addition to the

authority to regulate Greenhouse Gases to protect climate.

" In addition to direct effects on “climate,” climate change endan-

gers “welfare” through many of the other effects enumerated in

§ 302(h), including effects on “weather” (e.g., increased storm activity

and changes in rainfall or drought patterns), “damage to and deteriora-

tion of property,” and “effects on crops.” Further, emissions that cause

climate change endanger “public health” in several ways — e.g., by raising

air temperature so as to increase the severity of health-<lamaging smog

episodes. Intergovernmental Panel on Climate Change, Third Assess-

ment Report (2001), Working Group II Technica) Survey, at 43.

11

Section 202(aX1) states that EPA “shall” regulate if it finds

that a pollutant “may reasonably be anticipated to endan-

ger public health or welfare.” EPA’s judgment under this

section is limited to whether a pollutant meets the so-

called “endangerment standard.” Once EPA makes such a

finding, EPA has a duty to regulate the pollutant.

In fact, EPA is prohibited from considering factors not

expressly mentioned in the statutory delegation. Whitman

v. American Trucking Association, 531 U.S. 457, 467

(2001). This is true because in choosing the language of

governing statutes, Congress carefully imposes important

substantive and procedural restraints on agency officials’

exercise of their lawmaking authority. These restraints

supply the “intelligible principle” necessary to avoid non-

delegation doctrine concerns, as well as the “law to apply”

necessary for judicial review. Whitman v. American Truck-

ing Ass'n, 531 U.S. 472-74, citing J.W. Hampton, Jr., & Co.

v. United States, 276 U.S. 394, 409 (1928). Thus, the only

proper factor EPA can consider under § 202(a)(1) of the

CAA is whether the statutory standard has been met.

Natural Resources Defense Council, Inc. v. EPA, 824 F.2d

1146 (D.C. Cir. 1987).

B. The Counter-Textual Arguments Offered

By EPAAre Unconvincing.

Despite the unambiguous language of the statute,

EPA makes several strained counter-textual arguments to

support its claim that it does not have authority to regu-

late Greenhouse Gas emissions under § 202(a)(1) of the

Clean Air Act - (1) Congress was not concerned with global

warming when drafting the CAA; (2) policy reasons

necessitate regulation of global pollutants via separate,

12

specific statutes; (3) Congress’s behavior evidences EPA's

lack of authority based on FDA v. Brown & Williamson;

and (4) an interagency conflict exists with the Department

‘of Transportation’s fuel economy standards under the

Energy Policy and Conservation Act, 49 U.S.C. §§ 32901-

32919. See Massachusetts, 415 F.3d at 68 (Tatel, J., dis-

senting). None of these arguments is convincing.

1. Congress Was Concerned With Climate

Change And Did Intend To Regulate

Greenhouse Gases When Drafting The

Clean Air Act.

Congress has in fact been quite specific in demonstrat-

ing that effects on “climate” fall within the scope of the

Clean Air Act. However, even if this were not the case, this

Court has held consistently that an agency can regulate a

new subject matter in the absence of proof of specific

Congressional intent directed at the particular problem.

See Diamond v. Chakrabarty, 447 U.S. 303, 314-15 (1980) _

(rejecting argument that, because genetic technology was

unforeseen when broad patent statute was enacted, micro-

organisms could not be patented until Congress expressly

authorized it). This Court has held that “the fact a statute

can be applied in situations not expressly anticipated by

Congress does not demonstrate ambiguity ... it demon-

strates breadth.” PGA Tour v. Martin, 532 U.S. 661, 689

(2001).

2. EPA Does Not Need Separate Statutes

To Regulate Greenhouse Gases.

Furthermore, each of the statutes cited by EPA as

tending to prove that Congress has not manifested an

13

intent to regulate Greenhouse Gas emissions is actually

consistent with EPA having authority to regulate Green-

house Gases under § 202(a)(1) of the CAA. In fact, these

statutes tend to disprove EPA’s claim that global pollut-

ants need to be regulated via separate statutes. EPA cites

the National Climate Program Act of 1978, 15 U.S.C.

§ 2901 et seq.; the Global Climate Change Research Act of

1990, 15 U.S.C. § 2921 et seg.; and Energy Policy Act of

1992, 42 U.S.C. § 13201 et seg., to support this assertion.

However, the Global Climate Change Research Act states

that “nothing in the Act shall be construed, interpreted or

applied to preclude or delay the planning or implementa-

tion of any Federal action designed, in whole or in part, to

address the threats of stratospheric ozone depletion or

global climate change.” Global Climate Change Research

Act of 1990, 15 U.S.C. § 2938(c). Moreover, none of these

acts is a regulatory law; rather, each provides for volun-

tary Greenhouse Gas emissions reductions. There is

nothing inherently inconsistent with Congress providing a

mechanism for enforcing reductions of an air pollutant

while simultaneously seeking to encourage voluntary

reductions.

3. EPA Inappropriately Relied On FDA v.

Brown & Williamson In Determining It

Does Not Have Authority To Regulate

Greenhouse Gases.

EPA inappropriately relied on FDA v. Brown & Wil-

liamson for the proposition that the EPA’s having author-

ity to regulate air pollutants associated with climate

change would contradict other Congressional enactments.

FDA v. Brown & Williamson is inapposite because a

finding that the word “drug” included tobacco would have

14

forced the FDA to outlaw all tobacco products. In the case

of this petition, finding that the term “air pollutant”

within CAA § 302(g) includes CO, would only require the

EPA to regulate CO,, not to proscribe its emission. See

Massachusetts, 415 F.3d at 71 (Tatel, J., dissenting).

Under § 202(a)(1) of the CAA, EPA would only have to

set technologically and economically feasible standards —

something the agency has done for decades with other

pollutants emitted from motor vehicles and motor vehicle

engines. Section 202 of the CAA includes protections

designed to prevent severe economic impacts from occur-

ring. Section 202(a\(2) of the CAA provides that new

emissions standards are to “take effect after such period as

the Administrator finds necessary to permit the development

and application of the requisite technology, giving appropri-

ate consideration to the cost of compliance within such

period.” Clean Air Act § 202(a)(2), 42 U.S.C. § 7521(aX2).

Further, FDA v. Brown & Williamson concluded that

the Food, Drug and Cosmetic Act (FDCA) was unambigu-

ous and that Congress had “directly spoken to the issue

here and precluded FDA's jurisdiction to regulate tobacco

products.” 529 U.S. at 133. Central to the Court’s analysis

was the fact that the FDA had for 60 years denied that it

had authority to regulate tobacco products under the

FDCA and that Congress had enacted legislation aimed at

regulation of tobacco products. In the case at bar, there is

no such parallel Congressional action, nor has EPA consis-

tently denied that it had the ability to regulate Green-

house Gases.

15

4. EPA Has In The Past Recognized Its

Ability To Regulate Substances Caus-

ing Climate Change, Specifically Green-

house Gases Emitted By Motor Vehicles

And Motor Vehicle Engines Under

§ 202(a)(1) Of The Clean Air Act.

Further undermining EPA’s recent contention that it

does not have authority to regulate Greenhouse Gases

under the CAA is the fact that EPA previously maintained

that it had the authority to regulate Greenhouse Gases

emitted from motor vehicles and motor vehicle engines. See

‘Memorandum from Jonathan Z. Cannon, General Counsel of

the EPA, to Carol M. Browner, Administrator of the EPA

(Apr. 10, 1998).° Months later, Cannon’s successor, Gary

Guzy, testified before Congress on the impacts of global

warming. Gary S. Guzy, General Counsel of the EPA,

Testimony Before a Joint Hearing of the Subcommittee on

National Economic Growth, Natural Resources, and Regula-

tory Affairs of the Committee on Government Reform and

the Subcommittee on Energy and Environment of the

* On March 11, 1998, Congressman Tom DeLay requested a legal

opinion from EPA Administrator Carol Browner on the question of

whether the CAA allows the EPA to regulate CO, emissions of motor

vehicles and motor vehicle engines. In October 1998, Jonathan Cannon,

General Counsel for the EPA, prepared the requested legal memoran-

dum, in which he made the threshold determination that CO, “is an air

pollutant within the meaning of the CAA.” Jd. at 2. Cannon further

noted that the EPA’s authority to regulate CO, is “linked to [a] determi-

nation by the Administrator regarding [CO,’s) actual or potential

harmful effects on public health, welfare, or environment.” Jd. at 3. In

effect, Cannon's stance allowed for the EPA to regulate CO, under CAA

section 202(a)(1), among other sections, as long as the Administrator

concluded that CO, “causeld], or contribute[d] to, air pollution which

may reasonably be anticipated to endanger public health or welfare.” 42

U.S.C. § 7521(a)(1).

16

Committee on Science, U.S. House of Representatives (Oct.

6, 1999) (available at http//www.house.gov/science/guzy_

100699.htm) (last visited Aug. 22, 2006). In fact, EPA took

the opposite view for what appears to be the first time in a

memorandum by EPA General Counsel released the same

day EPA denied the petition. See Memorandum from Robert

E. Fabricant, General Counsel, to Marianne L. Horinko,

Acting Administrator, “EPA’s Authority to Impose Mandatory

Controls to Address Global Climate Change under the Clean

Air Act (August 28, 2003) (available at http://www.epa.gov/

airlinks/co2petitiongememo8-28.pdf) (last visited August 22,

2006).

5. Interagency Conflict With The United

States Department Of Transportation

Does Not Prohibit EPA From Regulat-

ing Greenhouse Gases Emitted From

Motor Vehicles And Motor Vehicle En-

gines.

EPA reasons that it cannot regulate Greenhouse

Gases from motor vehicles and motor vehicle engines

because the United States Department of Transportation

(DOT) was granted the authority to set fuel economy

standards under the Energy Policy and Conservation Act,

49 U.S.C. §§ 32901-32919. This contradicts the clear

language of the Energy Policy and Conservation Act,

which expressly recognizes that motor vehicle standards

set by other agencies may affect fuel economy. 42 U.S.C.

§ 32902(f). The regulatory authority granted to EPA and

DOT are not mutually exclusive, and there is, therefore,

no Congressional bar overlapping EPA regulation under

§ 202(a)(1) of the CAA and DOT regulation under the

Energy Policy and Conservation Act.

17

Il. EPA’S DECISION NOT TO REGULATE

GREENHOUSE GASES WAS ARBITRARY AND

CAPRICIOUS.

Not only does EPA have the ability to regulate Green-

house Gases emitted from motor vehicles and motor

vehicle engines, but EPA acted arbitrarily and capri-

ciously, abused its discretion and otherwise acted not in

accordance with law in denying the petition requesting

EPA to regulate. Administrative Procedure Act § 706, 5

U.S.C. § 706.

Instead of employing the statutory framework, EPA

arbitrarily and capriciously substituted its policy concerns

for the process established by Congress when it denied the

petition. EPA denied the petition on various grounds. One

concern was interagency confusion,’ because it believed

_ that regulating Greenhouse Gases would cut against

President George W. Bush’s current climate change policy

and constitute “piecemeal” regulation of one source of

Greenhouse Gas emissions. Also, it believed that a regula-

tory scheme would not comport with the President’s

comprehensive approach to climate change that calls for

near-term voluntary actions and incentives along with

programs aimed at reducing scientific uncertainties and

encouraging technological development. EPA also noted

that it did not want to disrupt the “public-private partner-

ships formed to develop break-through technologies that

could dramatically reduce the economy’s reliance on fossil

fuels without slowing its growth.” Further, EPA worried that

foreign countries might allow Greenhouse Gas emissions to

increase if the United States reduced its emissions, thereby

* See Part I(B\(5) infra.

18

offsetting any global emission decrease. Cen. Hve., 68 Fed.

Reg. at 52925-30.

To support its reliance on policy decisions, EPA relies

on Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) for the

proposition that EPA may consider “the sort of policy judg-

ments Congress makes when it decides whether to enact

legislation regulating a particular area.” Massachusetts, 415

F.3d at 58. However, if EPA can ground decisions not to

regulate on policy considerations absent from the text of the

CAA, Ethyl would effectively allow EPA unfettered discretion

in making threshold regulatory determinations. See Christo-

pher Giovinazzo, Defending Overstatement: The Symbolic

Clean Air Act and Carbon Dioxide, 30 Harv. Envtl. L. Rev.

99, 148-49 (2006) (“The implication of Massachusetts v.

EPA is thus that the words ‘in his judgment’ afford the

EPA the discretion to refuse to act on the basis of effi-

ciency, cost, or any other practical concern entirely beyond

the narrow endangerment finding”). The Ethyl decision

does not stand for the proposition that EPA can base —

rulemaking denials on policy judgments. See Massachu-

setts, 415 F.3d at 76 (Tatel, J., dissenting) (“Ethyl makes

quite clear that the Administrator’s policy-based discretion

is limited to the terms of the statute.”) Rather, Ethyl

allows an agency to justify affirmative decisions to regu-

late on policy decisions, and only if the policy issues taken

into account “relate[] to whether the statutory standard

ha[s] been met.” Massachusetts, 415 F.3d at 76 (Tatel, J.,

dissenting). Applying this Ethyl filter to the case at bar

reveals that EPA cannot couch its actions in the fabric of

Ethyl since EPA made a decision not to regulate in this

instance.

Congress did not intend EPA to consider such extra-

neous factors as how regulation of Greenhouse Gases from

19

mobile sources “interfaces with fuel economy standards,”

68 Fed. Reg. at 52929, or differs from the President’s climate

change policy, id. at 52930, in making a judgment as to

whether a substance causes, or contributes to, air pollution

which may reasonably be anticipated to endanger public

health or welfare. The sole question authorized by Congress

in making this determination is whether a substance causes

or contributes to air pollution that may reasonably be

anticipated to endanger public health or welfare.

In fact, only one of EPA’s policy considerations, that of

scientific uncertainty, speaks to the regulatory structure

provided under § 202(a)(1) of the CAA. None of the other

factors addresses in any way whether the effects of Green-

house Gas emissions “may reasonably be anticipated to

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

EPA's reliance on scientific uncertainty in denying the

petition is improper. The levels of uncertainty present in the

National Academy of Science Report, National Academy of

Sciences, Natural Resources Council, Climate Change

Science: An Analysis of Some Key Questions (2001) fhereinaf-.

ter NAS-NRC Report] are not great enough to cast doubt on

the fact that Greenhouse Gas emissions are causing global

climate change. The NAS-NRC Report merely recognizes

that the scope of climate change is uncertain — it does not

challenge the existence of climate change.

A. Scientific Uncertainty Is Not Great Enough

To Prevent An Endangerment Finding.

There is not enough uncertainty in the NAS-NRC

Report and in global climate change science in general to

justify EPA’s detision to deny the petition in this case.

There is adequate evidence in the record, in the form of

20

reports demonstrating the current state of the science

behind global climate change, that the coastal United

States, including Petitioners Massachusetts, Rhode Island,

Connecticut, New York, and New Jersey as well as amici

Delaware, will be subject to harm from the effects of global

climate change, at least some of which is directly related

to Greenhouse Gas emissions of motor vehicles and motor

vehicle engines. NAS-NRC Report; Intergovernmental

Panel on Climate Change (IPCC), Working Group I Re-

~port, Climate Change 2001: The Scientific Basis (2001)

(available at http:/www.grida.no/climate/ipcec_tar/wg1/index.

htm) (last visited August 29, 2006)[hereinafter [PCC Report].

Even ignoring the more dire consequences included in the

future climate models suggested by the IPCC Report, the

NAS-NRC Report includes ample evidence of endangerment.

There is a 90 percent probability that by 2100, the Earth will

warm between 1.7 and 4.9° C, resulting in more frequent

heat waves, droughts, and extreme precipitation events.

Hassol, Susan Joy, Arctic Council, Impacts of a Warming

Arctic: Arctic Climate Impact Assessment 5 (2004) [herein-

after ACIA].

According to the NAS-NRC Report there was a global

mean surface air temperature rise of between about 0.7

and 1.5° F during the twentieth century. NAS-NRC Report

at 3. Such warming is “spatially widespread” and “consis-

tent with the global retreat of mountain glaciers, reduction

in snow-cover extent, the earlier spring melting of ice on

rivers and lakes, the accelerated rate of rise of sea level

during the 20th century relative to the past few thousand

years, and the increase in upper-air water vapor and

rainfall rates over most regions.” NAS-NRC Report at 16.

The report acknowledges that atmospheric concentrations

SA ee en MT

21

of CO, are increasing as a result of human activity (NAS-

NRC Report at 2) and adopts the IPCC conclusion that

“most of the observed warming of the last 50 years is likely

to have been due to the increase in Greenhouse Gas

concentrations accurately reflects the current thinking of

the scientific community on the issue.” The NAS-NRC

Report relied upon by EPA shows that, since approxi-

mately 7 percent of the Greenhouse Gases released in the

United States are released by means of exhaust from

motor vehicles, Greenhouse Gas emissions of motor

vehicles and motor vehicle engines are, at least in part,

directly responsible for global climate change and accom-

panying harm to Petitioner States. The Petitioner States

have been, over the past century, harmed by EPA’s failure

to regulate Greenhouse Gas emissions from motor vehi-

cles. More importantly, the NAS-NRC Report indicates

that “even in the more conservative scenarios, the models

project temperatures and sea-levels that continue to

increase well beyond the end of this century, suggesting

that assessments that examine only the next 100 years

underestimate the magnitude of the eventual impacts.”

NAS-NRC Report at 5.

Petitioner States Massachusetts, Rhode Island, New

York, New Jersey, and Washington are particularly sus-

ceptible to the effects of global climate change since, like

Delaware, they are located in a middle latitude region, and

since “middle and high latitude regions appear to be more

sensitive to climate change than other regions, significant

impacts in these regions are likely to occur at lower levels

of global warming.” NAS-NRC Report at 21. Petitioner

States offered evidence in the form of engineering expert

22

testimony declaring that estimated future rises in sea

levels could engulf coastal land and cause augmented

storm surge flooding.

Although the NAS-NRC Report declines to state

whether there is a “safe” level of Greenhouse Gas emis-

sions because such determination depends both on view-

point and value judgment (NAS-NRC Report at 20) the

Report concludes that “greenhouse gases are accumulating

in Earth’s atmosphere as a result of human activities,

causing surface air temperatures and subsurface ocean

temperatures to rise,” (VAS-NRC Report at 1) and states

that “despite the uncertainties, there is general agreement

that the observed warming is real and particularly strong

within the past twenty years.” NAS-NRC Report at 3.

Relied on by the EPA, the Report concludes that:

Greenhouse gases are accumulating in

Earth’s atmosphere as a result of human activi-

ties, causing surface temperatures and subsur-

face ocean temperatures to rise... . The changes

observed over the past several decades are likely

mestly due to human activities, but we cannot

rule out that some significant part of these

changes are also a reflection of natural variabil-

ity. Human-induced warming and associated sea-

level rises are expected to continue through the

21st century. Secondary effects are suggested by

computer model simulations and basic physical

reasoning. These include increases in rainfall

rates and increased susceptibility of semi-arid

regions to drought. The impacts of these changes

will be critically dependant [sic] on the magni-

tude of the warming and the rate with which it

occurs.

23

NAS-NRC Report at 1. This conclusion in itself is enough

to maintain that EPA made a clear error of judgment in

denying the petition. Even from the emphasized level of

uncertainty in the NAS-NRC Report, it is obvious that

there are severe actual and imminent dangers attributed

to global climate change. Had EPA not sidestepped the

question set out in the statute, it could not have denied

that Greenhouse Gas emissions “cause or contribute to”

global climate change, which in turn “may reasonably be

anticipated to endanger public health and welfare.” 42

U.S.C. § 7521(a)(1). EPA has a duty to regulate such

emissions.

B. Scientific Uncertainty Is Not A Factor

EPA May Use In Making An Endanger-

ment Finding.

The United Nations Framework Convention on

Climate Change prohibits EPA from using scientific

uncertainty as the basis to deny extending CAA regulation

to Greenhouse Gas emissions. United Nations Framework

Convention on Climate Change, Art. 3, 4; May 29, 1992,

U.N. Doc. A:AC.237/18 (1992), reprinted in 31 I.L.M. 849

(1992).

The Convention states that the signatory nations:

should take precautionary measures to antici-

pate, prevent or minimize the causes of climate

change and mitigate its adverse effects. Where

there are threats of serious or irreversible dam-

age, lack of full scientific certainty should not be

used as a reason for postponing such measures,

taking into account that policies and measures to

deal with climate change should be cost-effective

24

so as to ensure global benefits at the lowest pos-

sible cost.

United Nations Framework Convention on Climate

Change, Art. 3 J 3 (emphasis added).

Furthermore, the developed nations “shall adopt

national policies and take corresponding measures on the

mitigation of climate change, by limiting its anthropogenic

emissions of greenhouse gases and protecting and enhanc-

ing its greenhouse gas sinks and reservoirs.” Id. Art. 4

| 4(a).

Ratified treaties, along with the Constitution itself

and United States Laws, are the “supreme Law of the

Land.” U.S. Const. art. VI. Thus an “act of Congress ought

never be construed to violate the law of nations if any

other possible construction remains...” Murray v. Schoo-

ner Charming Betsy, 6 U.S. 64, 118 (1804); Weinberger v.

Rossi, 456 U.S. 25, 32 (1982); Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 814-15 (1993) (Scalia, J., dissent-

ing).

Considering the effect of the United Nations Conven-

tion on Climate Change in light of the aforementioned

cases, it is clear that EPA is prohibited from using “scien-

tific uncertainty” as a reason to deny the petition in this

case.

Ill. DELAWARE HAS A PARTICULAR INTEREST

IN THE PROMPT FEDERAL REGULATION

OF GREENHOUSE GASES.

Amici State of Delaware has a particular interest in

EPA regulating Greenhouse Gas emissions. In the present

action, Delaware has a heightened interest in the effects of

25

global climate change because it is (1) a middle latitude,

low-lying coastal state, and (2) a state that is incapable of

regulating Greenhouse Gas emissions from motor vehicles

and motor vehicle engines on its own.

Delaware is located between 38 degrees, 27 'N and 39

degrees, 50 'N latitude. Delaware is a small state bordered

by the Atlantic Ocean, Delaware Bay, and the States of

Maryland, New Jersey, and the Commonwealth of Penn-

sylvania. Most of the State is in the low-lying Atlantic

Coastal Plain. Its highest point is approximately 448 feet

above sea level, with its lowest elevation at sea level on its

Atlantic Coast. State of Delaware, Delaware Geography (2006)

(available at http://www.state.de.us/gic/delfacts/geo.shtml#

elevation) (last visited August 29, 2006.) Climate scientists

warn that the melting of the polar ice sheets could have

dire consequences for coastal areas. Jonathan M. Gregory

et al., Threatened Loss of the Greenland Ice Sheet, 428

Nature 616 (2004). If the current pace of melting contin-

ues, the seas will rise 10 or more meters, flooding areas

inhabited by 25 percent of the population of the United

States. U.S. Geological Survey, Sea Level and Climate

(2000) (available at http://pubs. usgs.gov/fs/fs2-00/) (last

visited August 29, 2006.) The Gulf and East Coast states,

including Delaware, will experience the brunt of the

impacts of global climate change. Jd. The average elevation

of Delaware is a mere 60 feet, or 18 meters, above sea level,

The Columbia Encyclopedia, 6th Ed. (2006) Delaware (avail-

able at http//www.encyclopedia.com/html/D/Delawar-st.asp)

(last visited August 28, 2006) and a rise in sea levels of 10

meters would be devastating for Delaware. Therefore, it is

vitally important to regulate Greenhouse Gases to slow

and eventually stop the effects of global warming caused

by the atmospheric buildup of such chemical] substances.

26

Delaware is incapable of fully regulating Greenhouse

Gas emissions from motor vehicles and motor vehicle

engines. According to Delaware Department of Transpor-

tation, Division of Planning Databases, Surveys and

Records Acquired for and used to support a Travel De-

mand Model, fully 9.1 percent of all vehicle miles traveled

within the State are estimated to be those of out-of-state

vehicles (those drivers having one or both of the beginning

and end of a trip destination out of state). Michael Du-

Ross, Planning Supervisor, Delaware Department of

Transportation, Division of Planning, 24 Hour Daily or

Average Annual Daily Traffic (AADT Report) (August 22,

2006). Moreover, according to the Delaware State Police, 24

percent of vehicles involved in traffic accidents were regis-

tered with non-Delaware tags in the year 2005. Delaware

State Police TraCS System (2005) (last visited August 26,

2006). Also, 33 percent of traffic arrests within the State of

Delaware involved individuals with an out-of-state drivers

license. Delaware Judicial Information System, DELJIS

Database (2005) (last visited August 26, 2006). These num-

bers indicate that a very large percentage of automobiles

emitting Greenhouse Gases within Delaware are not within

Delaware's jurisdictional reach and therefore cannot be

regulated by the State. The only way to effectively regulate

all of the vehicles traveling in Delaware would be through

EPA regulation.

*

CONCLUSION

For the aforementioned reasons and upon the authori-

ties cited above, the State of Delaware requests an order

declaring that EPA has the authority and statutory obliga-

tion to regulate Greenhouse Gases emitted by motor

27

vehicles and motor vehicle engines under § 202(a)(1) of the

Clean Air Act.

Respectfully Submitted,

CARL C. DANBERG

Attorney General of Delaware

Counsel of Record

DEPARTMENT OF JUSTICE

820 N. French Street

Wilmington, Delaware

Telephone: (302) 577-8400

LAWRENCE LEWIS

State Solicitor

KEVIN MALONEY

Deputy Attorney General

ROBERT PHILLIPS

Deputy Attorney General

State of Delaware

DEPARTMENT OF JUSTICE

820 N. French Street

Wilmington, Delaware

Telephone: (302) 577-8400

VALERIE CSIZMADIA

Deputy Attorney General

State of Delaware

102 W. Water Street

Dover, Delaware

Telephone: (302) 739-4636

Counsel for State of Delaware