Amicus Curiae Brief — Massachusetts v. EPA

Suprens Cout, US

% FLED r

( ; ) OFFICE OF THE CLERK |

No. 05-1120

IN THE

Supreme Court of the Anited States

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR ENTERGY CORPORATION AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

CHUCK D. BARLOW ELISE N. ZOLI

ENTERGY SERVICES, INC. Counsel of Record

308 E. Pearl Street U. GWYN WILLIAMS

Jackson, MS 39201 KEVIN P. MARTIN

(601) 969-2542 ALADDINE D. JOROFF

GOODWIN PROCTER LLP

53 State Street

Boston, MA 02109

(617) 570-1000

Attorneys for the Amicus

August 31, 2006

a ED

TABLE OF CONTENTS

SPCR URUUEEISS GIS” COURS FRIED censcccerevssevocsncessonevesesnosesnoosoooes l

SUMMARY OF ARGUMENT ..............ccccceecserseseeseseeereaeees 4

ENTE wicccacsncncnninntimnatinnavapinanenineieseniaienminniennnsinions 6

I. Carbon Dioxide is an Air Pollutant Within the

Plain Meaning of the Clean Air Act...............:::0eceeees 6

A. Air Pollutants Include Any Substance

or Matter that Enters the Ambient Air,

Including Carbon Dioxide..................0es000000- 6

B. Carbon Dioxide Causes Air Pollution

Within the Meaning of the Act.................00008 8

l. The Act Specifically Describes

Climate Change as an Effect of

* FER thntntetntndicinnncnin 10

2. The Plain Meaning of “Air

Pollution” Includes Emissions

that Cause Climate Change. ............. 1]

3. Congress and EPA Have

Elsewhere Referred to Carbon

Dioxide Emissions and

Resulting Climate Change as

Air Pollution. ............ dilieciimapibianatidine 13

3 The History of Amendments to the Act

Further Supports EPA’s Authority to

Regulate Carbon Dioxide..................0.c000cees 15

D. EPA’s Parade-of-Horribles Argument

Does Not Detract from the Plain

STINE GG GD FAI. wicrcnsecasennsssnsenentnorscesentens 16

ii.

Il. EPA’S Conclusion that Carbon Dioxide is Not

an Air Pollutant under the Clean Air Act is

PE 18

A. This Court Should Not Defer to EPA’s

Change in Policy Concerning its Own

i 18

B. EPA’s Interpretation of the Act is

EES SE SLAIN SRR RI RO 22

l. EPA’s Reliance on Diplomatic

Considerations Was

ee 22

2. EPA’s Argument that the Act

Does Not Specifically Provide

for Regulation of Carbon

Dioxide is Meritless. ....................06- 24

3. EPA’s Consideration of the

Feasibility of Regulation was

MORDIIIION. cnccosnsensceetncpnsseveeesnesvensstnesese 26

IG scp ccirtchntitiesibcdlesitcacliiestiptiietebesniahjitiaiiaibateaibinde 29

iil.

TABLE OF AUTHORITIES

Cases:

Addison v. Holly Hill Fruit Prods., Inc., 322 U.S.

Be re eiianciscuinuessintndcebeceptiniucdintoubdutienmecendianianivinnendaes 21

Bolton v. Merit Syst. Prot. Bd., 154 F.3d 1313 (Fed.

Ge ee icidincertinsttennsitinhniilaiiiicindndiinininbeiadeniateliinibedisirtpentiin 21

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

Council, Inc., 467 U.S. 837 (1984) ........cceeeeees 5, 6, 18

Chickasaw Nation v. United States, 534 U.S. 84

Sai iichistackuiseisieg iatebleiictiansidecalindbecitikinnsadsiitbnmipiinpeecconeiants 9

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) .........04+. 8

Dunn v. Commodity Futures Trading Comm'n, 5\9

EIT a Rciaincdicininciepibnicstennlindiniideinsentdininastadidedanpeie 26

FDA v. Brown & Williamson Tobacco Corp., 529

Se: IE ck diiciscthlentidctindiitindiigndatiincdinsnanistieiaiionens 20, 24

General Electric Co. v. Gilbert, 429 U.S. 125 (1976)..... 21

Gonzales v. Oregon, 126 S. Ct. 904 (2006) ...............06 18

Good Samaritan Hospital v. Shalala, 508 U.S. 402

SGT i hicisicteseiatehiiliichieaisbnecbedcitpcpetitihiddoniadbyiiitediiaidindbapasnehbebats 18

Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) ......... 8

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)............ 5, 18

New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006)............. 9

New York Shipping Ass'n, Inc. v. Fed. Mar.

Comm'n, 854 F.2d 1338 (D.C. Cir. 1988)..............006. 2)

Northern Illinois Steel Supply Co. v. Secretary of

Labor, 294 F.3d 844 (7th Cir. 2002) ..............cccceeeeeeee 21

Pension Benefit Guaranty Corporation v. LTV

Sg Sire Sele Ge CED ctesccsccsnccccovesteccnicnsvecssennte 19

Roper v. Simmons, 543 U.S. 551 (2005)..............cccccee eee 23

United States v. Craft, 535 U.S. 274 (2002) ......cccceeeeeee 24

Whitman v. American Trucking Associations, Inc.,

| Ng __: RERRESSERAIEES Poon ver ene MenC ee 22, 23

iv.

Docketed Cases:

Coke Oven Environmental Task Force v. EPA, Nos.

06-1131, -1148, -1149, - 1154, -1155 (D.C. Cir.)......... 2

Statutes:

Clean Air Act Amendments of 1977, Pub. L. 95-95,

§ 3O1(c), 91 Stat. GBS (1977) ........ccccccsvccvceccccsccccccceess 15

Foreign Relations Authorization Act, Fiscal Years

1988 and 1989, Pub. L. 100-204, 101 Stat. 1331

CFTR Picovsnsesnsnsascenencioiotaccmncientiniandunamndinindnlbldniiesl 14

Global Change Research Act of 1990, Pub. L. 101-

- 606, 104 Stat. 3096 (1990)... eeessseeseereeerees 14, 15

Veterans Affairs and HUD Appropriations Act,

1999, Pub. L. 105-276, 112 Stat. 2461 (1998)............ 14

GR UTA... | Fee vcrcesncsecsevenssesetasiennenscensinipesisipnidaniipaiiaias |

G2 WBA... § PEI OPescccinsccnssenctsctecimeninipesammsaeniiatiinns a

4B UBL. § FOGGING) ncocscccssevsesccsscssassccnteses poicnnnatiaitiaaaii 10

GS WBA... B FEI 8 Prcosconconscsssccsnsnssecctonbetianndpiiniaiainaiiii 28

4B OBL. © FE sovicccsecccocenccnractesetotentnniteninapenmntiia 27

GB UA. © POS IGE ncecscscssiecocnesccntvciesiiicandiindstiamiainii 27

BB IEA. © POG CIB piceccccsecssccosstniccetscentcnitiqiabanaiel 17, 21

G2 U BA... & FEUD cecncsccscccensvsvsvecsacenivseninsiiahiadedaiguaaiial 24

GB UBL. © FEED) ectctcccsccneisssincetsascnssiideas 4, 10, 11, 17

GB UBC. § TRB RA avisecccsecscnsinsssssssncsssciesiaianialapiidlae 26

GB USL. BFE cccnccccccnssccsscsnscissssioinninamicabasiguaiial passim

G2 UBL... § FEED ciccsnceiccssonsicnensenianioctassenadadile 10, 11, 25

Regulations:

71 Fed. Reg. 9869 (Feb. 27, 2006) ............ccscseseeeeeeee y

36 Fed. Reg. 1502 (Jam. 30, 1971) .....ccscccrscsssovessssccessoese 10

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

Other Authorities:

American Heritage Dictionary (4th ed. 2000)................ 1]

Black’s Law Dictionary (17th ed. 1999) ooo 11

Vv.

Other Authorities—Continued:

H. Rep. No. 95-294, 1977 U.S.C.C.A.N. 1077

Joint Brief of Industry Intervernor-Respondent,

Commonwealth of Massachusetts v. EPA, No. 03-

1361, 2005S WL 257457 (D.C. Cir. Jan. 25. 2005)........ 9

Memorandum from Robert E. Fabricant, General

Counsel, EPA, to Marianne Horinko, Acting EPA

Administrator (Aug. 28, 2003)...............cccccseeseeeeeneeees 20

Oxford English Dictionary (2nd ed. 1989)... 1]

Random House Dictionary of the English Language

I IT (sites dete dealatademeriniesapngiaenecseanaees it

S. Rep. No. 101-228, 1990 U.S.C.C.A.N. 3385

ESS ETE SE LUN ae EE 25

U.S. Department of State, Action on Climate

Change, Energy and Sustainable Development

(July 8, 2005), available at

http://www.state.gov/g/oes/rls/fs/49266.htm.............. 13

U.S. Environmental! Protection Agency, Global

Warming and our Changing Climate, EPA 430-F-

STITT STITT tn scence dniiinantnctoncendsenspeqnseseosscecesece 3

U.S. Environmental Protection Agency, Global

Warming-Climate: Uncertainties, available at

http://yosemite.cpa./gov/OAR/globalwarming.nsf/

content/Climate Uncertainties. html ...............::cccceeeeeees 13

U.S. Environmental Protection Agency, Office of

Po),cy: Inventory of U.S. Greenhouse Gas

Emissions and Sinks. Annex T: Glossary,

available at http://iaspub.epa.gov/

trs/trs_proc_qry.alphabet?p_term_nm=A&p_reg_

auth_id=1&p_data_id=20023&p_version=| .............. 12

U.S. Environmental Protection Agency, State

Implementation Plans, available at,

http://www.epa.gov/regionS/air/sips/index.html......... 12

Vi.

Other Authorities—Continued:

U.S. Environmental Protection Agency, Terms of

Environment: Glossary, Abbreviations and

Acronyms, available at http://www.epa.gov/

OCEPAterms/aterms. Html ............cccccccceeeceeeeeeeeeeeeeees

INTEREST OF THE AMICUS'

This case makes for strange bedfellows. Amicus curiae

Entergy Corporation (“Entergy”), among the nation’s largest

owners and operators of electric-generating power plants”,

supports the efforts of States and environmental non-

government organizations to require the United States

Environmental Protection Agency (“EPA” or the “Agency”)

to recognize its own current authority to regulate carbon

dioxide (“CO”), consistent with Congress’s express directive

in the Clean Air Act, 42 U.S.C. §§ 7401 et seg. (the “CAA”

or the “Act”). Entergy’s position is- atypical of an industry

largely opposed to CO» regulation. This case also presents an

atypical agency posture: Instead of over-reaching, EPA has

under-reached, and by a country mile.

More specifically, EPA’s politically-expedient conclusion

that CO> is not an “air pollutant” within the meaning of the

Act, and hence that EPA lacks any jurisdiction to regulate

CO» emissions, cannot be reconciled with the plain language

of the Act and therefore Congress's intent. The Act’s

definition of “air pollutant” is broad enough to reach CO»,

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

of consent on file with the Clerk. No counsel for any party had any

role in authoring this brief, and no one, other than the amicus

curiae, provided any monetary contribution to its preparation or

submission.

>

i

Entergy owns or operates approximately 30,000 megawatts of

electric-generating capacity including coal-, gas-, oil- and nuclear-

powered facilities, hydroelectric dams, and wind-powered projects.

Most of these facilities are subject to extensive regulation under the

Act, particularly the many provisions applicable to electric-

generating facilities.

(1)

2

and the Act elsewhere specifically refers to CO» as an air

pollutant. Even were the Act somehow ambiguous on the

issue Of whether CO» is an air pollutant, the Act is most

naturally read that way, and EPA’s effort to exclude CO, is

unreasonable. Thus, Entergy disagrees with EPA on the

narrow question of EPA’s statutory authority to regulate CO,

under the Act.

The instant case, although grounded in emission standards

for new motor vehicles under Section 202(a)(1) of the Act,

squarely implicates the electric-generating sector’s interests,

including Entergy’s. On February 27, 2006, EPA

promulgated New Source Performance Standards (“NSPS”)

for steam-electric generation units pursuant to Section

111(b)(1)(B) of the Act that exclude any regulation of CO»,

an omission that is the subject of a current appeal before the

District of Columbia Circuit. See Coke Oven Environmental

Task Force v. EPA, Nos. 06-1131, -1148, -1149, -1154, -1155

(D.C. Cir.). In that rulemaking, as in the Agency’s

rulemaking for new motor vehicles at issue here, EPA

asserted that it “does not presently have the authority to set

NSPS to regulate CO» or other greenhouse gases that

contribute to global climate change.” 71 Fed. Reg. 9869 (Feb.

27, 2006).’ While the criteria for issuing regulations under

Section 202(a)(1) and Section 111(b)(1)(B) may differ, the

underlying question of EPA’s authority to regulate CO) does

not. As such, this Court’s determination in this case whether

EPA has authority with respect to CO» likely will have a

determinative impact on the outcome in Coke Oven

Environmental Task Force and on other EPA initiatives that

directly affect Entergy and the entire electric-generating

industry.

3

The District of Columbia Circuit has granted Entergy amicus

curiae status in support of the petitioners in the Coke Oven

Environmental Task Force proceeding.

3

The energy needs of the United States are expected to

double over the next 50 years, and Entergy and its fellow

industry members need to plan—and act—now for the

strategic capital investments—viewed on a 25-year horizon—

that will be necessary to meet this increased demand. Entergy

seeks certainty with respect to the regulatory regime it must

operate under, and does not believe that EPA’s current

position on CO» regulation will stand the test of time. Not

only is that position contrary to the plain language of the Act,

but EPA scientists, joined by the National Academy of

Scientists (commissioned by the Bush Administration) and

the vast majority of the world scientific community, have

each concluded that the threat of climate change, while not

certain in all of its details, is legitimate. As EPA has

recognized, climate change associated with CO» emitted by

human activities, including power plant operations and motor

vehicles, is “‘likely to have wide-ranging and mostly adverse

impacts on human health, with significant loss of life.’” Sce

U.S. Environmental Protection Agency, Global Warming and

our Changing Climate, EPA 430-F-00-011 (April 2000)

(quoting Intergovernmental Panel on Climate Change).

Given this scientific crescendo and the environmental threat

at issue, it is unlikely that EPA will successfully avoid

regulating CO» emissions for long.

~

Entergy further belicves that the nation’s increasing

energy demand needs to be met by dependable power

generation that substantially reduces or eliminates CO»

emissions. This will happen, not through the voluntary

emissions reduction programs that a select few (such as

Entergy) have put into place, but only if proper incentives to

limit CO» emissions, eé.g., price signals relevant to the

continued emission of CO», are established. At the moment,

EPA has chosen instead to preserve the historic energy-

generation patterns that contributed to the current

environmental threat. EPA’s refusal to recognize its authority

4

to regulate CO, fails to appropriately incentivize the

development of environmentally responsible power

generation to satisfy the nation’s energy demand.

EPA’s refusal also may compromise this nation’s primacy

in energy-sector research and development and, therefore, the

industry's future. United States leadership in innovative

power-production technology rests on the long-held

perception that American technology is the gold standard.

This perception would be at risk if the nation lags others in

developing emission-free power production. Absent CO,

regulation, the industry lacks the requisite motivation to

provide this global leadership.’

Finally, Entergy is far less sanguine than EPA about the

prospect of this nation’s air-quality decisions being decided

by the international community. Entergy prefers the

considerable safeguards of the CAA rulemaking process,

‘which provides for participation by interested parties sensitive

to this nation’s needs and fosters (through judicial review

under the Administrative Procedures Act) decisions grounded

in sound scientific debate. The international debate offers no

comparable guarantees, and therefore none of the Security of

the American rulemaking process.

SUMMARY OF ARGUMENT

On the surface, this case concerns Section 202(a)(1i) of the

Act, which authorizes EPA to set 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.” See 42 U.S.C. § 7521(a)(1) (emphasis added).

Thus, EPA's authority to regulate CO» turns on whether CO,

is an “air pollutant” under the Act, and EPA’s decision

5

whether to regulate CO» turns on whether the criteria of

Section 202(a)(1) have been met.

Until recently, EPA has recognized its authority to

regulate CO» as an “air pollutant” under the Act. In a

precipitous reversal, however, EPA has disavowed that

authority based upon the implausible legal contention that

CO, emissions are not air pollutants under the Act, a

contention the Agency grounds in a strained reading of its

own authority under the Act and in the suspect contention that

United States environmental policy should await international

direction. See 68 Fed. Reg. 52922, 52933 (Sept. 8, 2003); see

also 71 Fed. Reg. 9869 (Feb. 27, 2006). Entergy disagrees

with EPA on both grounds.

Legislation may not invariably reflect Congress’s clear

intent, but with respect to EPA’s authority to regulate CO> as

an air pollutant, Congress has been both clear and precise.

The definition of the term “air pollutant” in Section 302(g) of

the Act, which includes “any physical, chemical, biological

... Substance or matter which is emitted into or otherwise

enters the ambient air,” is sufficiently broad to encompass

CO. See 42 U.S.C. § 7602(g). Indeed, Section 103(g) of the

Act expressly refers to CO» as an air pollutant. See id.,

§ 7403(g)(1). Absent violence to the plain language of the

Statute in a manner incompatible with Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), and its progeny, EPA cannot surgically excise CO,

from the definition of air pollutant under the Act.

Should this Court conclude that the term “air pollutant” is

ambiguous as used in Section 302(g) of the Act, EPA’s own

equivocal history on-whether CO, is an air pollutant suggests

that deference is particularly inappropriate here. See /NS v.

Cardoza-Fonseca, 480 U.S. 421, 447 & n.30 (1987). Even

affording EPA deference, the Agency’s counterarguments fall

fat. Contrary to EPA’s argument (and among the other

6

arguments addressed herein), Congress has not made this

nation’s air-quality policy subject to prior international

accord. Even if it had, the international community largely

has reached an accord, in the Kyoto Protocol, that favors CO

regulation. In any event, the definition of air pollutant in the

Act antedates the climate change debate, and thus cannot have

informed Congressional thinking with respect to the breadth

of EPA’s authority to regulate CO. Thus, EPA’s position is

doubly unreasonable—simultaneously incorrect and

anachronistic.

For these reasons, Entergy supports Petitioners’ request

for remand with this Court’s direction to EPA to regulate CO>

emissions pursuant to the Agency’s clear statutory authority.

ARGUMENT

I. Carbon Dioxide is an Air Pollutant Within the

Plain Meaning of the Clean Air Act.

At its heart, this case concerns the meaning of “air

pollutant” in the Act, and in particular whether “air

pollutant,” as defined by the Act, includes CO» EPA

concluded that CO, is not an air pollutant. Entergy, however,

believes that this Court need look no further than the Act’s

plain language to see that CO» is an “air pollutant” within the

meaning of the Act. See, e.g., Chevron, 467 U.S. at 843 &

n.9 (“If a court, employing traditional tools of statutory

construction, ascertains that Congress had an intention on the

precise question at issue, that intention is the law and must be

given effect’).

A. Air Pollutants Include Any Substance or Matter

that Enters the Ambient Air, Including Carbon

Dioxide.

As defined by the Act, “air pollutant” means:

7

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. Such term

- includes any precursors to the formation of any air

pollutant, to the extent the Administrator [of EPA] has

identified such precursor or precursors for the

particular purpose for which the term ‘air pollutant’ is

used.

42 U.S.C. § 7602(g).

Parsing this statutory language, “air pollutant” is defined

as synonymous with “air pollution agent or combination of

such agents.” /bid. “Air pollutant” and “air pollution agent”

are then further defined to include “any physical, chemical,

biological ... substance or matter which is emitted into or

otherwise enters the ambient air.” /bid. (emphasis added).

It is difficult to conceive of a broader definition for air

pollutant: It captures “any ... substance or matter” put into

the “ambient air.” /bid. There is no legitimate argument, and

EPA does not assert, that CO» is not a “physical [or] chemical

. substance or matter which is emitted into or otherwise

enters the ambient air.” /bid. Accordingly, under the plain

language of Section 302(g) of the Act, CO» is an air pollutant.

Were there any doubt, it would be dispelled by Section

103(g) of the Act. That section instructs EPA to conduct a

research program that includes an_ evaluation of

“{iJmprovements in non-regulatory = strategies and

technologies for preventing or reducing multiple air

pollutants, including ... carbon dioxide.” 42 USC. —

§ 7403(g)(1) (emphasis added).* Thus, Congress itself

* EPA, in its final rulemaking, misconstrued the text of Section

103(g)(1), suggesting that Congress had distinguished CO, from air

pollutants, when in fact that section explicitly refers to CO, as an

8

expressly has referred to CO» as an air pollutant within the

Act. The “normal rule of statutory construction” is that

“identical words used in different parts of the same act are

intended to have the same meaning.” See Desert Palace, Inc.

v. Costa, 539 U.S. 90, 101 (2003) (internal quotation marks

and citations omitted). There is no indication in Section

103(g)(1) that Congress intended “air pojlutant” to mean

something different than it meant in Section 302(g).

In short, given the broad language in Section 302(g) and

the specific reference to CO; as an air pollutant in Section

103(g), Entergy submits that CO) is an air pollutant within the

plain meaning of the Act.

B. Carbon Dioxide Causes Air Pollution Within the

Meaning of the Act.

In its final rulemaking, EPA asserted that CO» is not an

“air pollutant” because, in EPA’s judgment, climate change

does not constitute “air pollution” within the meaning of the

Act, and therefore CO» is not an “air pollution agent.” See,

e.g., 68 Fed. Reg. at 52928.

This argument is meritless for the simple reason,

explained above, that “air pollution agent” is itself defined

within the Act to include “any physical [or] chemical ...

substance or matter which is emitted into or otherwise enters

the ambient air.” 42 U.S.C. § 7602(g). This Court has

repeatedly interpreted the word “any,” including as used in

the Clean Air Act, to have an expansive meaning. See, e.g.,

Harrison v. PPG Indus., Inc. 446 U.S. 578, 588-89 (1980)

(“we agree with the petitioners that the phrase, ‘any other

final action,” in the absence of legislative history to the

air pollutant. See 68 Fed. Reg. at 52926 (describing Section 103(g)

as calling for research into “several air pollutants and CO>,” and

into “CO, as well as several specified air pollutants” (emphases

added)).

9

contrary, must be construed to mean exactly what it says,

namely, any other final action” (emphasis in original)); see

also New York v. EPA, 443 F.3d 880, 885-87 (D.C. Cir.

2006) (rejecting EPA interpretation of the Act that “would

make Congress’s use of the word ‘any’ insignificant if not

superfluous” (internal quotation marks and citation omitted)).

In addition, the Act nowhere defines “air pollution.”

However, because the phrase “any physical, chemical,

biological ... substance or matter which is emitted into or

otherwise enters the ambient air” is an included exemplary

subset of “air pollution agent,” it is a logical and linguistic

imperative that the term “air pollution agent,” for purposes of

the Act, is even broader than that subset definition. See 42

U.S.C. § 7602(g); see also Chickasaw Nation v. United

States, 534 U.S. 84, 89 (2001) (reciting dictionary definition:

“to include is to contain or comprise as part of a whole”

(emphasis added; internal quotation marks and citation

omitted)).

Respondents have suggested that Congress could not

really have intended the Act to cover “any physical, chemical,

biological ... substance or matter which is emitted into or

otherwise enters the ambient air,” including CO», because

under such a broad definition even baseballs thrown into the

air are at risk of being regulated under the Act. See Joint

Brief of Industry Intervernor-Respondent, Commonwealth of

Massachusetts v. EPA, No. 03-1361, 2005 WL 257457, *10

(DC. Cir. Jan. 25. 2005). Our national pastime is not at risk,

however, as the regulation of air pollutants, such as CO»,

requires EPA first to find sufficient evidence of a possible

endangerment to public health or welfare—e.g., either under

Section 202 or Section | 11—a result EPA is unlikely to reach

in the case of tossed baseballs. That said, EPA has long

acknowledged, and routinely exercises, its authorily to

classify as “air pollutants” man-made material—including

material that is not inherently harmful or dangerous. For

10

instance, the regulated air pollutant “particulate matter”

consists simply of solids of a particular size and

configuration, the dispersion of which in the environment in

certain quantities can cause visibility impairment and other

negative environmental and health effects. See, e.g., 42

U.S.C. § 7407(d)(4)(B) (discussing designated nonattainment

areas for particulate matter-10); see also 36 Fed. Reg. 1502

(Jan. 30, 1971) (“Particulate matter refers to any matter

dispersed in the air, whether solid or liquid, in which the

individual particles are larger than small molecules but

smaller than 500 microns”). Thus, a baseball, or the dust

emitted by a slide into second base, may be an air pollutant,

albeit one unlikely to be regulated, at least by EPA.

Assuming, however, for purposes of argument, that “air

pollution” has some narrower meaning, it nonetheless remains

clear that CO» is an “air pollution agent,” and hence an “air

pollutant,” within the meaning of the Act.

|. The Act Specifically Describes Climate Change as

an Effect of Air Pollution. \

Under the Act, EPA is required to regulate air pollutants

emitted, e.g., from automobiles, “which in _ [the

Administrator'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) (emphases

added). In 1970, the Act was amended specifically to provide

that “[a]ll language referring to effects on welfare includes

. effects on ... weather ... and climate” 42 U.S.C.

§ 7602(h) (emphasis added). Thus, Congress specifically and

in plain language equated “air pollution” and “effects on ...

climate.” Under EPA’s reading of the Act, it can only

consider the effect of an emission on “climate,” and hence on

human welfare, if the emission is already considered an “air

pollutant” for some other, non-climate-related reason. This

would, for no apparent reason, leave unregulated some

emissions endangering human welfare through effects on

climate, a danger that Congress has explicitly directed EPA to

address. See 42 U.S.C. §§ 7521(a)(1), 7602(h). Such a

reading of the Act is not only unsupported by the text, it

requires this Court to disregard an unequivocal Congressional

directive.

2. The Plain Meaning of “Air Pollution” Includes

Emissions that Cause Climate Change.

In ordinary parlance, “pollution” means:

[t]he action of polluting, or condition of being

polluted; defilement; uncleanness or impurity caused

by contamination (physical or moral). spec. The

presence in the environment, or the introduction into

it, of products of human activity which have harmful

or objectionable effects.

Oxford English Dictionary (2nd ed. 1989).°

Similarly, the rulemaking at issue notwithstanding, EPA

routinely defines air pollution in a broad manner, including in

policy statements relating to emissions linked to climate

change. See, e.g., EPA Office of Policy: Inventory of U.S.

5

See also Random House Dictionary of the English Language

(2nd ed. 1987) (defining pollution as “1. the act of polluting or the

state of being polluted. 2. the introduction of harmful substances or

products into the environment: air pollution.”); American Heritage

Dictionary (4th ed. 2000) (defining pollution as “1. The act or

process of polluting or the state of being polluted, especially the

contamination of soil, water, or the atmosphere by the discharge of

harmful substances. 2. Something that pollutes; a pollutant or a

group of pollutants: Pollution in the air reduced the visibility near

the airport.”); Black's Law Dictionary (7th ed. 1999) (defining air

pollution as “[aJny harmful substance or energy emitted directly or

indirectly into the air, esp. if the harm is to the environment or to

the public health or welfare”).

12

Greenhouse Gas Emissions and Sinks. Annex T: Glossary

(defining “air pollution” as “[o]ne or more chemicals or

substances in high enough concentrations in the air to harm

humans, other animals, vegetation, or materials. Such

chemicals or physical conditions (such as excess heat or

noise) are called air pollutants”)°; see also EPA Terms of

'Environment: Glossary, Abbreviations and Acronyms

(defining “air pollution” as “[t}he presence of contaminants or

pollutant substances in the air that interfere with human

health or welfare, or produce other harmful environmental

effects”).’ | Furthermore, EPA has approved the state

implementation plans of many States that also define air

pollution in a broad manner that would include CO>.*

In light of these definitions, there can be no real debate

that CO» emissions into the ambient air from human activities

(such as burning fossil fuels), to the extent they do cause

climate change, would constitute “air pollution” as that phrase

is commonly understood. EPA’s own statements are

sufficient to illustrate this point. See, e.g., EPA, Global

® Available at http://ias

p_term_nm=A&p_reg_auth id=1&p data_id=20023&p versione!

(last visited on Aug. 30, 2006).

"Available at —http://www.epa.gov/OCEPAterms/aterms.html

(last visited on Aug. 29, 2006).

s

See, e.g., US Environmental Protection Agency, State

Implementation Plans, available at, http://www.epa.gov/regionS/

air/sips/index.html (providing, for example, Illinois definition of

“air pollution” and “air contaminant” respectively as “the presence

in the atmosphere of one or more air contaminants in sufficient

quantities and of such characteristics and duration as to be injurious

to human, plant, or animal life, to health or to property, or to

unreasonably interfere with the enjoyment of life or property” and

“any solid, liquid, or gaseous matter, any odor, or any form of

energy, that is capable of being released into the atmosphere’).

13

Warming-Climate: Uncertainties (stating that “[g]lobal

warming poses real risks” and “[s]cientists have identified

that our health, agriculture, water resources, forests, wildlife

and coastal areas are vulnerable to the changes that global

warming may bring”). Indeed, it strains credulity to argue

that CO» emissions do not have “harmful or objectionable

effects” or “harmful environmental effects” given the

Administration's own “ambitious goal” of cutting the

intensity of such emissions by the U.S. economy; if this

“ambitious goal” were unconnected to human health or

welfare, it would do nothing more than try the nation’s

patience.”

3. Congress and EPA Have Elsewhere Referred to

Carbon Dioxide Emissions and Resulting Climate

Change as Air Pollution.

If the text of the Act and the commonplace meaning of

“air pollution” were not plain enough, Congress repeatedly

has described CO» emissions in other environmental and

climate-change legislation as air pollution, often citing the

effect of such emissions on the global climate. Thus,

Congress has expressly stated:

The Congress finds as follows: (1) [T]here exists

evidence that manmade pollution — the release of

carbon dioxide . . . into the atmosphere — may be

producing a long term and substantial increase in the

average temperature on Earth... .

” Available at

cuneesttteesiocnnsiatealons (lasted visited on oo 30,

2006)

© See U.S. Department of State, Action on Climate Change,

Energy and Sustainable Deverapment on 8, 2005), available at

14

Foreign Relations Authorization Act, Fiscal Years 1988 and

1989, Pub. L. 100-204, § 1102(1), 101 Stat. 1331, 1408

(1987) (emphasis added).

Tellingly, in P.L. 105-276 (1998), Congress prohibited

EPA from issuing regulations implementing the Kyoto

Protocol, which would have restricted signatory nations’

emissions of CO».'' While it cannot be denied that Congress

can and does engage in acts of political speech, P.L. 105-276

suggests that Congress believed that EPA had existing

authority to implement the Kyoto Protocol’s restrictions on

CO, emissions. Such authority, of course, would be found in

the Act.

- Other statutes compelling ongoing climate-change

research also support EPA’s authority to regulate CO» under

the Act. For instance, in 1990, Congress passed the Global

Change Research Act of 1990 (“GCRA”) to provide for the

development and coordination of a comprehensive and

integrated United States research program “that will assist the

Nation and the world to understand, assess, predict, and

respond to human-induced and natural processes of global

change.” Pub. L. No. 101-606, § 101(b), 104 Stat. 3096,

3097 (1990). The GCRA provides:

Nothing in this title shall be construed, interpreted, or

applied to preclude or delay the planning or

implementation of any Federal action designed, in

'' Veterans Affairs and HUD Appropriations Act, 1999, Pub. L.

105-276, 112 Stat. 2461, 2496 (1998) (“none of the funds

appropriated by this Act shall be used to propose or issue rules,

regulations, decrees, or orders for the purpose of implementation,

or in preparation for implementation, of the Kyoto Protocol”). Of

course, this language only limits EPA’s authority to implement the

Kyoto Protocol; the statute does not otherwise restrict EPA’s ability

to issue regulations under the Act if the statutory criteria for such

regulation are satisfied.

15

whole or in part, to address the threats of stratospheric

ozone depletion or global climate change.

Id. at § 108(c), 104 Stat. at 3102 (emphasis added). Such a

savings clause would have been unnecessary if, as EPA

asserts, agents of global climate change, such as CO», could

not be regulated under the CAA.

In short, enacted legislation resoundingly reflects

Congress’s assumption that EPA has authority to regulate

CO, emissions.

C. The History of Amendments to the Act Further

Supports EPA’s Authority to Regulate Carbon

Dioxide.

The history of amendments to the Act further supports the

conclusion that the Act provides EPA authority to regulate

CO». As noted above, in 1970, the Act was amended to

provide that effects on “weather” and “climate” are to be

considered in judging whether an emission endangers human

welfare. See supra at 10.

In 1977, the definition of “air pollutant” in the Act was

amended from “an air pollution agent or combination of such

agents” to “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.” See Clean Air Act

Amendments of 1977, Pub. L. 95-95, § 301(c), 91 Stat. 685,

770 (1977). The House Committee Report issued in

connection with the 1977 amendments explained:

[T]he Clean Air Act is the comprehensive vehicle for

protection of the Nation’s health from air pollution. Jn

‘the committee's view, it is not appropriate to exempt

certain pollutants or certain sources from the

comprehensive protections afforded by the Clean Air

Act.

: 16

H.R. Rep. No. 95-294, at 42, 1977 U.S.C.C.A.N. 1077, 1120

(1977) (emphasis added) (“1977 House Committee Report”).

In 1990, Congress again amended the definition of “air

pollutant,” clarifying that “precursors to the formation of any

air pollutant” also constitute air pollutants “to the extent the

Administrator [of EPA] has identified such precursor or

precursors for the particular purpose for which the term ‘air

pollutant’ is used.” See 42 U.S.C. § 7602(g). In other words,

EPA’s authority extends even beyond emissions that

themselves constitute air pollutants. The 1990 amendment

underscores the breadth of EPA’s authority.'”

D. EPA’s Parade-of-Horribles Argument Does Not

Detract from the Plain Meaning of the Act.

In arguing against recognizing CO» as an air pollutant

within the plain meaning of the Act, EPA has asserted that,

despite all contrary indications, Congress cannot have meant

for CO» to be an “air pollutant” because the political and

economic impact of regulating CO» would be too severe, and

the science surrounding CO» emissions is still uncertain. See

68 Fed. Reg. at 52928.

Of course, the status of a substance as an “air pollutant”

subject to EPA’s authority does not mean that regulations for

such a substance are automatically mandated. Rather, the

Agency’s obligation to promulgate regulations for air

pollutants, such as CO», is triggered when the requisite

1?

This broad assignment of authority to EPA to regulate

precursors is likewise consistent with Congress's intent, expressed

while preparing the 1977 amendments to the Act, to “emphasize the

preventative or precautionary nature of the act, /.e., to assure that

regulatory action can effectively prevent harm before it occurs; to

emphasize the predominant value of protection of public health.”

1977 House Committee Report, H. Rep. No. 95-294 at 49, 1977

U.S.C.C.A.N. at 1127.

17

criteria, set forth in various parts of the Act, are satisfied,

including in this case EPA’s judgment that the pollutants

“cause, or contribute to, air pollution which may reasonably

be anticipated to endanger public health or welfare.” 42

U.S.C. § 7521(a)(1). Under the Act, EPA possesses the

flexibility to regulate air pollution in a cost-effective manner.

Consequently, EPA’s parade-of-horribles argument is both

irrelevant on its face and meritless in fact, and should not be

permitted to distract from the relatively simple plain-language

question before the Court.'*

13

Not having participated in the underlying rulemaking effort,

Entergy does not address herein whether particular criteria

requiring specific regulations under Section 202 for emission

standards for new motor vehicles or engines have been satisfied.

Entergy does believe, however, that the requisite criteria for issuing

a NSPS for CO, emissions from electric utility steam generation

units, enumerated in Section 111 of the Act. have been satisfied.

See 42 U.S.C. § 7411(b) 1A) (requiring EPA to regulate

Stationary sources, i.e. any “building, structure, facility, or

installation which emits or may emit any air pollutant,” that, in the

Administrator’s judgment “caus(e], or contribut[e] significantly to,

air pollution which may reasonably be anticipated to endanger

public health or welfare”) (emphasis added). The criteria for

issuing regulations under Section 111 are more stringent than those

applicable under Section 202(a), which requires EPA to establish

standards for the emission of air pollutants that the Administrator,

in his judgment, determines “cause, or contribute to, air pollution:

which may reasonably be anticipated to endanger public health or

welfare.” See 42 U.S.C. § 7521(ayl). Thus, the criteria for

regulation under Section 202(a) are a subset of the criteria

applicable to stationary sources under Section | 11.

18

Il. EPA’S Conclusion that Carbon Dioxide is Not an

Air Pollutant under the Clean Air Act is

Unreasonable.

Should this Court conclude that CO»’s status as an “air

pollutant” within the meaning of the Act is ambiguous, the

question becomes whether EPA is entitled to deference on

this issue, and whether EPA’s interpretation of the Act, under

which CO, is not a pollutant, is reasonable. See Chevron, 467

U.S. at 843; see also Gonzales v. Oregon, 126 S.Ct. 904, 908

(2006) (“Chevron deference ... is not accorded merely

because the statute is ambiguous and an administrative

official is involved”). Entergy submits that the answer to

both questions is no. Any deference due to EPA is

diminished by EPA’s abandonment of the earlier opinion of

two EPA general counsels that €O) is a pollutant within the

meaning of the Act. Whatever level of deference is granted

EPA, the grounds for the Agency’s decision that CO» is not a

pollutant under the Act are unreasonable.

A. This Court Should Not Defer to EPA’s Change in

Policy Concerning its Own Jurisdiction.

While deference is normally accorded an agency in

interpreting an ambiguous statute that the agency is charged

with administering, agency inconsistency in interpreting a

statute is grounds for a reviewing court to take a harder look

at the reasonableness of the agency interpretation. See Good

Samaritan Hospital v. Shalala, 508 U.S. 402, 417 (1993)

(“the consistency of an agency’s position is a factor in

assessing the weight that position is due”). As this Court

stated in Cardoza-Fonseca, 480 U.S. at 446 0.30, “[a]n

agency interpretation of a relevant provision which conflicts

with the agency’s earlier interpretation is entitled to

19

considerably less deference than a consistently held agency

view” (internal quotation marks and citation omitted).'*

In this case, any deference owed EPA’s interpretation of

“air pollutant” is diminished by EPA’s reversal of an earlier

conclusion at the highest levels—the prior opinions of two

EPA general counsels—that CO» is an air pollutant within the

meaning of the Act, in favor of the opinion of EPA’s new

general counsel that CO, is not. See 68 Fed. Reg. at 52925

(“Two EPA General Counsels previously . . . found that CO»

meets the CAA definition of ‘air pollutant’”). Thus, this case

is worlds removed from the typical case in which a purported

“change” in agency position is actually an evolution, instead

of a revolution, in policy, in light of pertinent new

information.

A brief history underscores the starkness of the change in

policy at issue here. In an April 10, 1998 memorandum, then-

General Counsel Jonathon Cannon responded to a request

from Rep. Tom DeLay for EPA’s position on whether CO> is

an air pollutant under the Act.'° General Counsel Cannon

'* In addition to concerns over the relative accountability of

Article III judges and Article I agencies, the precept of deference

rests on the twin assumptions that regulatory expertise matters and

that an agency’s thoughtful application of law warrants favor. See,

e.g., Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S.

633, 651-652 (1990) (“[P]ractical agency expertise is one of the

principal justifications behind Chevron deference”). Both of these

precepts are appropriately diminished where the agency's opinion

on a straightforward question of statutory construction going to the

scope of its authority varies for politically expedient reasons.

'' At a hearing before the House Appropriations Committee,

Congressman DeLay challenged a statement by EPA, in a

document entitled “Electricity Restructuring and the Environment:

What Authority Does EPA Have and What Does it Need,” that

EPA had authority under the Act to regulate CO2 emissions. In

response, then-EPA Administrator Carol Browner testified that she

20

concluded that it is. See Memorandum from Robert E.

Fabricant, General Counsel, EPA, to Marianne Horinko,

Acting EPA Administrator, at 2 (Aug. 28, 2003) (“Fabricant

Memo.”). Subsequently, on October 6, 1999, then-General

Counsel Gary Guzy, focusing on the statutory language,

reaffirmed General Counsel Cannon’s answer in testimony

before Congress. See id. at 3.

EPA’s legal position suddenly changed on August 28,

2003, when General Counsel Robert Fabricant volunteered

the opposite conclusion on this very question of statutory

interpretation, despite the absence of any supporting change

in the underlying science or in the text of the Act. See

Fabricant Memo. at 4. General Counsel Fabricant attempted

to justify his changed opinion as being a response to this

Court’s decision in FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000). As he explained the reversal of

EPA’s position, Brown & Williamson required a revaluation

of the authority-granted by Congress to EPA to regulate CO>.

See Fabricant Memo. at 4.

As explained further herein, that supposed basis for

reconsidering the definition of “air pollutant” within the

meaning of the CAA is dubious at best—the facts in Brown &

Williamson bear no resemblance to the circumstances of this

case. See infra at 24-25. Rather, it is clear that General

Counsel Fabricant’s new opinion simply reflected a change in

agency policy away from regulating CO». The Act's

definition of air pollutant, however, is straightforward, and

the Act does not explicitly provide for any Agency discretion

in determining whether a particular cmission is an “air

pollutant.” See supra at 6-8. Agency discretion instead

appears in judging which air pollutants endanger human

“health or welfare” and thus should be the subject of

agreed with the document's statement. Congressman DeLay then

asked EPA for a formal legal opinion on the subject.

2]

regulation by EPA. See 42 U.S.C. § 7411(b)(1)(A), and in

the exact structure of any resulting regulatory program.

Whatever EPA’s ability to change its mind on those issues as

a matter of policy or in light of changed facts, one would not

expect variation in the answer to the basic question of what

Congress meant by “any physical, chemical, biological,

radioactive . . . substance or matter which is emitted into or

otherwise enters the ambient air.” 42 U.S.C. §7602(g).

Deference to EPA’s new position on the meaning of “air

pollutant” ts also inappropriate for two additional reasons.

First, deference to an agency interpretation is strongest when

the agency construes the act contemporaneously with its

passage. See, e.g., General Electric Co. v. Gilbert, 429 U.S.

125, 142 (1976). Here, EPA is construing the CAA decades

after its passage, and in a manner inconsistent with its own

prior interpretation. Second, deference to an agency is

properly diminished where the question is the scope of the —

agency's authority. As this Court aptly put it in Addison v.

Holly Hill Fruit Prods., Inc., 322 U.S. 607, 616 (1944),

“[t]he determination of the extent of authority given to a

delegated agency by Congress is not left for the decision of

him in whom authority is vested.” This common-sense

approach has been confirmed by numerous circuit courts in

the post-Chevron era. See, e.g., Northern Illinois Steel Supply

Co. v. Secretary of Labor, 294 F.3d 844, 846—47 (7th Cir.

2002); New York Shipping Ass'n, Inc. v. Fed. Mar. Comm'n,

854 F.2d 1338, 1363 (D.C. Cir. 1988); Bolton v. Merit Syst.

Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).

-In summary, because EPA has, without a sound legal

basis, changed its position on the interpretation of a basic

statutory phrase that is unrelated to EPA’s discretion under

the Act, but is related to the Agency’s jurisdiction, this Court

should grant littk—if any—deference to EPA's current

position. 3

~

22

B. EPA’s Interpretation of the Act is Unreasonable.

In interpreting the Act’s definition of “air pollutant” to

exclude CO», EPA made a number of interpretive errors.

Viewing these errors both individually and as a whole, it is

clear that EPA’s interpretation of the Act was unreasonable.

1. EPA’*s Reliance on Diplomatic Considerations Was

Unreasonable.

EPA’s justification of its interpretation of the Act by

reference to negotiation of the Kyoto Protocol is especially

troubling. See 68 Fed. Reg. at 52927. According to EPA, it

is somehow relevant, in interpreting language placed in the

Act in the 1960s and 1970s, that in 1998 the Senate passed a

resolution stating that the U.S. should not be a signatory to

the Kyoto Protocol, if the Protocol would harm the U.S.

economy or failed to mandate “specific, scheduled

commitments to limit or reduce GHG emissions for

developing countries.” /bid.

Nowhere in the Act, however, is there any suggestion that

whether an emission constitutes an “air pollutant” within the

meaning of the Act depends upon the treaty obligations -of

foreign states. The inappropriateness of EPA’s attempt to

read the current state of diplomatic play into the Act’s

definition of “air pollutant” is clear both as a matter of first -

principles, and in light of this Court’s recent decision in

Whitman v. American Trucking Associations, Inc., 531 U.S.

457 (2001). In that case, the precise question was whether

EPA could consider compliance costs in declining to issue

National Ambient Air Quality Standards (“NAAQS”). In

rejecting arguments that ambiguous wording in the statute

granted EPA such discretion, the Court noted:

Just as we found it highly unlikely that Congress

would leave the determination of whether an industry

will be entirely, or even substantially, rate-regulated to

23

agency discretion—and even more unlikely that it

would achieve that through such a subtle device as

permission to ‘modify’ rate-filing requirements, so

also we find it implausible that Congress would give

to the EPA through these modest words the power to

determine whether implementation costs should

moderate national air quality standards.

Id. at 468 (internal quotation marks and citation omitted).

The Court went on to note that implementation compliance

cost is “so indirectly related to public health and so full of

potential for canceling the conclusions drawn from direct

health effects that it would surely have been expressly

mentioned ... had Congress meant it to be considered” in

deciding whether to issue NAAQS. /d. at 469.

This Court’s statements concerning implementation cost

in American Trucking are even more apt here. EPA can point

to no language—let alone ambiguous language of the sort

found insufficient in American Trucking—to justify its

consideration of the vagaries of diplomacy in determining

whether CO) is an “air pollutant.” Like cost, foreign policy

considerations are both “indirectly related to public health”

and “full of potential for canceling conclusions drawn” from

public health and welfare analysis. The status of CO» as an

air pollutant within the meaning of the Act does not vary

based upon whether the governments of developing countries

have committed by treaty to regulate CO. Simply put, there

is nc basis under the Act to permit the environmental policies

of foreign governments, fron: Afghanistan to Zimbabwe, to

bear on the interpretive question whether CO> is an air

pollutant within the meaning of the Act. Cf. Roper v.

Simmons, 543 U.S. 551, 624 (2005) (Scalia, J., dissenting) (in

interpreting U.S. Constitution, “the basic premise ... that

American law should conform to the laws of the rest of the

world—ought to be rejected out of hand”).

24

As if this were not clear enough, Congress has explicitly

provided in the Act that U.S. environmental regulations shall

not be forestalled because of potential impacts on or from

emissions in foreign countries. See, e.g., 42 U.S.C.

§ 7509a(2) (providing that the EPA Administrator may

approve state implementation plans even if such plans do not

demonstrate attainment and maintenance of relevant NAAQS

provided that the submitting State can establish that the plan

would be adequate but for “emissions emanating from outside

of the United States”). Thus, there is no credible legal basis

for EPA’s limiting its authority to regulate CO) emissions

based on the purportedly unresolved international debate.

2. EPA's Argument that the Act Does Not Specifically

Provide for Regulation of Carbon Dioxide is

Meritless.

Ignoring the Act’s definition of “air pollutant,” EPA

contends that the Act only allows the study of CO2, but does

not specifically provide for CQ 's regulation. According to

EPA, if Congress had wished to have EPA regulate CO» it

would have enacted specific statutory provisions governing

CO», as it did for ozone-destroying agents. See 68 Fed. Reg.

at 52926. Otherwise, EPA frets—in an argument based

almost entirely on the non-analogous facts present in Brown

& Williamson—that it may enact regulations imposing broad

economic and political impacts without a direct mandate from

Congress. See id. at 52925-26.

In Brown & Williamson, this Court considered substantial

evidence, in the form of enacted legislation, that Congress did

not wish to ban the sale of tobacco products. 529 U.S. at

137-39. No comparable history exists here. EPA relies on

proposed legislation that was not enacted, see 68 Fed. Reg. at

52927-28, but such reliance as a basis for interpreting an

earlier enacted statute is sorely misplaced. See United States

v. Craft, 535 U.S. 274, 287 (2002) (“failed legislative

(25

proposals are a particularly dangerous ground on which to

rest an interpretation of a prior statute”) (internal quotation

marks and citation omitted).'° EPA also relies on the

existence of legislation specifically calling for the study of the

effects of CO. emissions. See 68 Fed. Reg. at 52926.

Congress’s call for the study of an emission, however, is not

inconsistent with an intention that the emission should be

regulated under existing legislation if the study shows that the

Act’s trigger for regulation (EPA’s judgment that the

emission endangers public health or welfare) is met. The

mandate, instead, easily can be viewed as Congress spurring

the agency toward action in a matter already committed to the

agency's authority.

In any event, as noted above the Act specifically provides

that “[a]ll language referring to effects on welfare includes

... effects on ... weather ... and climate.” 42 U.S.C.

§ 7602(h). Thus, the Act already contains explicit authority

for the regulation of emissions shown to impact “weather ...

and climate,” as CO, is alleged to do. EPA asserts that

Congress should have spoken more clearly, but Congress has

spoken as clearly as possible; EPA has simply, and

inexplicably, chosen not to listen.

16

The proposals referenced by Respondents, which would have

sect CO, emissions standards for passenger cars and for vehicles that

use low-polluting fuels, actually support Petitioners’ contention that

EPA has the authority to regulate CO». The suggested language did

not specifically assign EPA the authority to regulate CO», but

instead, assuming that such authority existed, set specific

regulations that were deemed warranted based on the effects of

CO;. See, eg. S. Rep. No. 101-228, at. 98-101, 1990

U.S.C.C.A.N. 3385, 3483-86 (1990).

26

3. EPA’s Consideration of the Feasibility of

Regulation was Improper.

In determining that CO: is not an air pollutant, EPA also

asserted that regulation of CO» under the Act is not feasible.

See 68 Fed. Reg. at 52927 (“In assessing the availability of

CAA authority to address global climate change, it is also

useful to consider whether the NAAQS system . . . could be

used to effectively address the issue”). EPA’s interpretation,

under which the feasibility of regulating an emission is

pertinent to whether that emission is an “air pollutant” in the

first place, is an unreasonable reading of the Act.

The plain error in EPA’s position is confirmed by various

provisions of the Act, including the very provision at issue.

Congress specifically addressed feasibility concerns, not

through the definition of “air pollutant,” but elsewhere in the

Act.’ For example, the Act addresses potential feasibility

concerns associated with regulations under Section 202(a)(1)

by providing that any such regulation shall:

take effect after such period as the [EPA]

Administrator finds necessary to permit the

development and application of the requisite

technology, giving appropriate consideration to the

cost of compliance within such period.

42 U.S.C. § 7521(a)(2).

'’ EPA's interpretation of the term “air pollutant,” under which

feasibility of regulating a particular emission under the CAA can be

considered in determining whether that emission is an “air

pollutant,” has the potential to render these other provisions of the

CAA mere surplusage, and for that additional reason is improper.

See Dunn vy. Commodity Futures Trading Comm'n, 519 U.S. 465,

472 (1997) (“legislative enactments should not be construed to

render their provisions mere surplusage”).

27

Similarly, the definition of “standard of performance”

applicable to stationary sources, including Entergy’s electric-

generating facilities, provides:

The term “standard of performance” means a standard

for emissions of air pollutants which reflects the

degree of emission limitation achievable through the

application of the best system of emission reduction

which (taking into account the cost of achieving such

reduction and any nonair quality health and

environmental impact and energy requirements) the

Administrator determines has been adequately

demonstrated.

42 U.S.C. § 741 1l(a)(1). As this definition makes clear,

whether something is an air pollutant does not depend upon

“the degree of emission limitation achievable” (or the “cost of

achieving such reduction”). Those considerations bear

instead on the form of any standard of performance enacted

with respect to an emission already determined to be an air

pollutant. See also 42 U.S.C. § 7409(b)(1).

The Act’s NAAQS provisions also demonstrate that the

feasibility of regulating a particular emission is irrelevant to

that emissions status as an “air pollutant.” In the context of

NAAQS, the Act calls for EPA to publish a list of air

pollutants for which EPA “plans to issue air quality criteria

under this section”:

For the purpose of establishing national primary and

secondary ambient air quality standards, the

Administrator shall within 30 days after December 31,

1970, publish, and shall from time to time thereafter

revise, a list which includes each air pollutant - (A)

emissions of which, in his judgment, cause or

contribute to air pollution which may reasonably be

anticipated to endanger public health or welfare; (B)

the presence of which in the ambient air results from

28

numerous or diverse mobile or stationary sources; and

(C) for which air quality criteria had not been issued

before December 31, 1970 but for which he plans to

issue air quality criteria under this section.

42 U.S.C. § 7408(a)(1). As this section confirms, whether or

not EPA ultimately decides to “issue air quality criteria under

this section” for a given emission—a decision in which EPA

may exercise reasonable judgment—has no bearing on

whether that emission is an “air pollutant” in the first place.

Air pollutants that EPA plans to regulate are simply a subset

of all air pollutants as defined by the Act.'*

Even as a matter of common sense, the feasibility of

successfully regulating the effects of a particular substance

has no bearing on whether that substance is, in fact, an air

pollutant. Under EPA’s reading of the Act, it can avoid the

hard work of considering how to regulate certain emissions

simply by declaring them not to be pollutants in the first

place. It is as if, to escape the trouble of disciplining an

unruly child, a parent insisted that the child's behavior was

flawless. Such an interpretive sleight-of-hand finds no refuge

in the text of, or policies underlying, the Act.

EPA’s reliance on feasibility is not only flawed statutory

interpretation, it is unsound policy. Technological innovation

is spurred by incentives, and governmental regulation is one,

often significant, incentive to the development of pollution-

control technology. EPA’s conclusion that certain pollutants

can be ignored would only help to lock in place the status quo

and inhibit technological innovation, effectively undermining

the economics of solving the climate change dilemma.

'S EPA's proposed statutory construction lacks visceral appeal

viewed even from EPA's perspective, as requiring EPA in advance

to establish the feasibility of regulation would complicate the

otherwise straightforward process of adding air pollutants.

29

CONCLUSION

For the foregoing reasons, this Court should remand this

rulemaking to the EPA with instructions to appropriately

exercise its authority to regulate CO» emissions under the

CAA.

Respectfully submitted,

CHUCK D. BARLOW ELISE N. ZOLI

ENTERGY SERVICES, INC. Counsel of Record

308 E. Pearl Street U. GWYN WILLIAMS

Jackson, MS 39201 KEVIN P. MARTIN

(601) 969-2542 ALADDINE D. JOROFF

GOODWIN PROCTER LLP

53 State Strect

Boston, MA 02109

(617) 570-1000

Attorneys for the Amicus

August 31, 2006

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