Amicus Curiae Brief — Massachusetts v. EPA

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No. 05-1120 OFFICE OF Tye CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 2006

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 OF THE NATIONAL COUNCIL OF THE

CHURCHES OF CHRIST IN THE U.S.A., CHURCH

WORLD SERVICE, AND NATIONAL CATHOLIC

RURAL LIFE CONFERENCE AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

FRAN M. LAYTON*

MATTHEW D. ZINN

ANDREA RUIZ-ESQUIDE

SHUTE, MIHALY & WEINBERGER LLP

396 Hayes St.

San Francisco, CA 94102

(415) 552-7272 *Counsel of Record

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TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIA ...0..000.......ccccceseeeseeeseesees l

SUMMARY OF ARGUMENT. .....................ccsccssssssssssseoesenees 3

IE ieicsinlnsicsiabvictinitipasssietninduinieaspicwiineeiinintipitiie 4

I. BASED ON THE TENETS OF THEIR

If.

SPIRITUAL TRADITION, AMICI CONTEND

THAT WE MUST ACT NOW TO COMBAT

SEE RAINS ccvntisciesessectnistnsmcensvensomeciomssoies 4

EPA ERRED IN IGNORING THE HAZARDS

THAT CLIMATE CHANGE POSES FOR

“PUBLIC HEALTH OR WELFARE.”.................... 8

A.

Climate Change Threatens to Exacerbate

Human Suffering, Particularly for the Most

WN eisicindieclstiiiaiktsbicdaaitpinatdiiimiinitiadalaptiisisiisa

. Climate Change Also Threatens Amici’s

Efforts to Care for the Needy, Including

Victims of Natural Disasters.......................000.

EPA Misapplied Section 202(a)(1) By

Failing to Consider the Disastrous

Consequences of Climate Change. ..................

CIT ccesiichunictunsiepeedehientenianitliniiistiasnsniainitseninisiislniti

9

14

16

i

TABLE OF AUTHORITIES

CASES Page

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) ............. 18

Motor Vehicle Manufacturers Ass'n v. State Farm

Mutual Automobile Insurance Co., 463 U.S. 29

GU sche denblnciderssinepntinrtinsep snipncnisinpuitiichininihitiinainivipaensintehial 18, 19

STATUTES

re ie I iireinivitisscecinesetietnttindcaieseslss. ~shngiliayialata 4,8

ee I bevcthlticienittnhtantiiaaipeinnnitinin~o cranvainnlatacinin 17

ADMINISTRATIVE MATERIALS

Control of Emissions From New Highway Vehicles

and Engines, 68 Fed. Reg. 52,922 (Sept. 8, 2008)...... 17

OTHER AUTHORITIES

Brookings Institution, Metropolitan Policy Program,

New Orleans After the Storm: Lessons from the

Past, a Plan for the Future (2005) ...............c000eeeeeeeeees 12

Center for Health and the Global Environment,

Harvard Medical School, Climate Change Futures:

Health, Ecological and Economic Dimensions 53

SE ea ey car ice ss ORY Rate re Me ST 10

Centers for Disease Control, Heat Related Deaths —

United States, 1999-2003 (July 28, 2006) .................. 13

Susana Conti et al., Epidemiologic Study of Mortality

During the Summer 2003 Heat Wave in Italy, 98

Envtl. Research 300 (2005) .......cccccsccccsscccsescccsssceceseses 13

Amanda Covarrubias, California Heat Wave Deaths

Prompt Health Study, L.A. Times, Aug. 3, 2006 ....... 13

Shaila Dewan et al., Evacuees’ Lives Still Upended ~

Seven Months After Hurricane, N.Y. Times (Mar.

RE AER Re Ae creer trp me Oe RN a PTT ee 12

iii

- TABLE OF AUTHORITIES—Continued

Page

James B. Elsner, Evidence in Support of the Climate

Change: Atlantic Hurricane Hypothesis, 33

Geophysical Research Letters ___ (forthcoming

STEED ssttsiatipicioctdditelisdtecaaitadiidaiiteinpabnlpsnctdeniestdtislniiiddibiaincisinee 10

EPA, Inventory of U.S. Greenhouse Gas Emissions and

Sinks: 1990-2004 (2006) ....... aleliteasiacledhinibenlesininisiaibaetetationos 3

IID iiicccnenianiliid ineidisiedndbetnianad bata pabtenadidintedacaiasindindteationntes 5

SUNN ‘acts danse tetaabodedassihetielinthanatnintnendpibamabnticnsdiiidenbeniabinteinign 5

Andrew K. Githeko et al., Climate Change and Vector-

Borne Diseases: A Regional Analysis, 78 Bull.

World Health Org. 1136 (2000) .................ceceeee cece eee 11

Intergovernmental Panel on Climate Change, Third

Assessment Report, Climate Change 2001: Impacts,

Adaptation, and Vulnerability (2001)................. passim

Thomas R. Knutson & Robert E. Tuleya, Impact of

CO2-Induced Warming on Simulated Hurricane

Intensity and Precipitation: Sensitivity to the

Choice of Climate Model and Convective

Parameterization, 17 J. Climate 3477 (2004) ............ 10

-Luke 12:48............. EL TAME Dade DRE VET SRA NEED: Ot. PEI EO 6

PT sack ndelaitiltalahtaedh astthichinin cihnriniaseti leita eae aaltediciteddaiauiegile 5

M.E. Mann & K.A. Emanuel}, Atlantic Hurricane

Trends Linked to Climate Change, 87 Eos 233

SUT ciecsthienutisihidinbasistletaniecihatnipudithamtevtonaadinatéitscisteanaeaiedinibe 10

IE MIE, ac éochiiceh cin dideiieiisialidighishaddedeisiadnibomabinaniimdilils 5

ENE HEINEY tiscaihedndctnbilisnsntensenséssisniduavnibabiasiaateaadesiiisadiias 5

III RES REE WOLF EERE OR SADE a SOLE te OE Be 5

RR IE CS EAT EEM TLS CAT CIE TE TELE EN 5

iv

TABLE OF AUTHORITIES—Continued

Page

Norman Meyers, Environmental Refugees: An

Emergent Security Issue, Organization for Security

and Cooperation in Europe, 13 Economic Forum,

RD I TR, TED rcnhiccistdonvicarediiiniscesteptniniertinasine 13

Millennium Ecosystem Assessment, Ecosystems and

Human Well-Being: Desertification Synthesis

Si cise tbtntedbbisiiptotedectiapiun dcdhdidemidapinmmacdsiianent 12

P.C.D. Milly et al., Increasing Risk of Great Floods in

a Changing Climate, 415 Nature 514 (2002) ............. 10

Nat'l Oceanic & Atmospheric Admin., NOAA Reviews

Record-Setting 2005 Atlantic Hurricane Season:

Active Hurricane Era Likely to Continue (updated

FD, FR, Bee cnccnenicciiececinttibteinidaabiadethiitaimmied ebniiidduat ite 10

Geoff O’Brien et al., Climate Change and Disaster

Management, 30 Disasters 64 (2006) ............. 11, 14, 17

Naomi Oreskes, The Scientific Consensus on Climate

Change, 306 Science 1686 (2004) ...............ccceceeeeeeeeeeees 9

Stacey Plaisance, Those Who Fled Katrina on Own

Did Better, Chi. Trib., Aug. 14, 2006 ......................25. 12

Cass R. Sunstein, Risk and Reason: Safety, Law, and

the Environment 103 (2002) ................ccceccessseseeeeeeeees 18

Kevin E. Trenberth & Dennis J. Shea, Atlantic

Hurricanes and Natural Variability in 2005, 33

Geophysical Research Letters L12704 (2006) ........... 10

U.N. Framework Convention on Climate Change,

Subsidiary Body for Implementation, Report on

National Greenhouse Gas Inventory Data from

Parties Included in Annex I to the Convention for

the Period 1990-2003, U.N. Doc.

FCCC/SBI/2005/17 (Oct. 12, 2005) .0........ cece eee eeee eee ee 5

Vv

TABLE OF AUTHORITIES—Continued

Page

U.N. Framework Convention on Climate Change,

Subsidiary Body for Implementation, Sixth

Compilation and Synthesis of Initial National

Communications from Parties Not Included in

Annex I to the Convention, Inventories of

Anthropogenic Emissions by Sources and Removals

by Sinks of Greenhouse Gases, U.N. Doc.

FCCC/SBI/2005/18/Add.2 (Oct. 25, 2005).................004. 5

Webster’s Ninth New Collegiate Dictionary 952 (1983) .. 16

Anthony L. Westerling et al., Warming and Earlier

Spring Increases Western U.S. Forest Wildfire

Activity, Sciencexpress, July 6, 2006 ....................0002. ll

yeh

a”

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 2006

No. 05-1120

COMMONWEALTH OF MASSACHUSETTS, et ail.,

Petitioners,

Vv. r

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals For the District of Columbia Circuit

BRIEF OF THE NATIONAL COUNCIL OF THE

CHURCHES OF CHRIST IN THE U.S.A., CHURCH

WORLD SERVICE, AND NATIONAL CATHOLIC

RURAL LIFE CONFERENCE AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

Amici Curiae submit this brief with the written con-

sent of all parties filed with the Clerk of the Court.!

INTEREST OF AMICI CURIAE

Amicus NATIONAL COUNCIL OF THE CHURCHES

OF CHRIST IN THE U.S.A. is the principal ecumenical

organization in the United States with 35 Protestant, Or-

thodox, and Anglican member denominations with a com-

1 Mr. George LaPlante provided a monetary contribution

toward the preparation of this brief.

2

bined membership of more than fifty million Christians in

nearly 140,000 congregations nationwide. Through the

National Council, member denominations join in a com-

mon witness through ministries of faith, education, public

witness, and justice. While the National Council does not

purport to speak for all members of its constituent de-

nominations, it does speak for its policy-making body, the

General Assembly, whose 350 members are selected by

those denominations.

In 1988, concern about the impact of fossil fuel com-

bustion on global climate prompted the National Council

and other religious groups to convene in Washington, D.C.

to begin to address climate change. Since then, the Na-

tional Council and other faith groups have considered the

moral issues presented by climate change through the

lens of long-standing social teaching and have adopted

numerous policy statements calling for an immediate re-

sponse to this serious threat.

Founded in 1946, Amicus CHURCH WORLD SER-

VICE (CWS) is an ecumenical relief, development, and

refugee assistance ministry of 35 Protestant, Orthodox,

and Anglican denominations. Working in partnership

with indigenous organizations in some 80 countries, CWS

supports sustainable self-help development, meets emer-

gency needs, aids refugees, and helps address the root

causes of poverty and powerlessness. CWS has responded

to many disasters — hurricanes, floods, droughts, and

wildfires — that are exacerbated by climate change.

Since its founding in 1923, Amicus NATIONAL

CATHOLIC RURAL LIFE CONFERENCE (NCRLC) has

served as a prophetic voice for rural communities and for

care of the land on which they depend. NCRLC believes

that globalization and global environmental issues, in-

cluding climate change, place even greater demands on

NCRLC to fulfill its mission of supporting and empower-

ing rural people. Therefore, NCRLC advocates for policies

that will protect God's creation and God's children from

3

the threat posed by climate change, which is already af-

fecting the farmers and rural communities with which

NCRLC works.

As described further below, consistent with their spiri-

tual, ethical, and material interests, Amici and their

member religious organizations support immediate action

to stem the emissions that contribute to climate change.

Apart from their moral commitment to ameliorating need-

less human suffering, Amici’s direct and indirect partici-

pation in humanitarian relief efforts gives them a

tangible institutional interest in mitigating climate

change.

SUMMARY OF ARGUMENT

As a source of potentially grievous harm, anthropo-

genic climate change stands out in the long history of

humanity’s affronts to our fellow humans and to our envi-

ronment. A warming climate will cause or aggravate a

host of “natural” disasters, such as hurricanes, droughts,

floods, disease epidemics, and wildfires. These disasters

have serious consequences for much of humanity, but

they threaten most acutely the powerless segments of so-

ciety: the poor, the sick, the landless and homeless. In-

deed, the record-setting 2005 hurricane season that

produced the tragedies of Katrina and Rita foreshadows a

future of unabated climate change.

Because of this threat, and based on the Christian

tenets of stewardship for the natural world and solicitude

for the most vulnerable members of the human commu-

nity, Amici have joined a growing number of people of

faith to support concerted action to control emissions of -

greenhouse gases such as carbon dioxide. As a group, mo-

tor vehicles comprise one of the primary sources of those

gases in the United States.* Section 202(a)(1) of the Clean

* See EPA, Inventory of U.S. Greenhouse Gas Emissions and

Sinks: 1990-2004 fig.ES-16, 3-3 tbl.3-3, 3-8 tbl.3-7 (2006),

available at <http://yosemite.epa.gov/oar/globalwarming.nsf/

4

Air Act gives Respondent United States Environmental

Protection Agency (EPA) authority to regulate those emis-.

sions.

In the decision challenged here, EPA refused to adopt

such regulation. In doing so, it bypassed the inquiry pre-

scribed by Congress in section 202(a)(1), viz., whether mo-

tor vehicle emissions of greenhouse gases contribute to

pollution that “may reasonably be anticipated to endanger

public health or welfare.”? In fact, the disasters character-

istic of an anthropogenically warmed climate threaten the

survival and well-being — and thus the “health” and “wel-

fare” — of millions of people in the United States and

abroad.

EPA ignored these and other potentially serious haz-

ards of climate change. Instead, its decision asserts, in

addition to a passel of irrelevant considerations, that cli-

mate change involves too much scientific uncertainty. But

uncertainty alone cannot justify inaction. To decide ra-

tionally whether climate change may “endanger public

health or welfare,” EPA must consider the harm that

would result if the risk of climate change, however uncer-

tain, is realized. EPA failed to do so and thus misapplied

section 202(a)(1).

ARGUMENT

I. BASED ON THE TENETS OF THEIR SPIRI-

TUAL TRADITION, AMICI CONTEND THAT

WE MUST ACT NOW TO COMBAT CLIMATE

CHANGE.

Recognizing that anthropogenic climate change is al-

ready having adverse impacts on both humanity and the

natural world, Amici submit that it is our responsibility to

take action to mitigate our contributions to the changing

UniqueKeyLookup/RAMR6MBSC3/$F ile/06_Complete_Report.p

df>.

3 42 U.S.C. § 7521(a)(1).

5

climate. Followers of the Judeo-Christian tradition are

called to be responsible, just stewards of the Earth and

the abundant resources that it makes available, today

and for future generations.‘ Amici therefore contend that

we must reduce our substantial contributions to climate

change to protect the world entrusted to us.

The specter of climate change extends beyond the

natural resources, species, and ecosystems for which we

are asked to be stewards. As described in Part II, un-

checked climate change promises widespread dislocation

and suffering for humanity, particularly for those who al-

ready struggle for their survival. Christian ethics

preaches love of our fellow humans as ourselves, and

more particularly, care and compassion for those who are

the most vulnerable and needy.® These principles provide

an independent justification for Amici’s call for immediate

action to limit our contributions to climate change and its

attendant human tragedies.

Though the problem of climate change is plainly global

in both cause and effect, we in the United States bear a

special responsibility. As our affluence makes the United

States the greatest contributor to the problem of climate

change,’ so too must we be the greatest contributor to the

solution.® .

4 See Genesis 2:15, 9:12.

5 See Matthew 22:39; Mark 12:31-33.

6 See, e.g., Matthew 19:21, 25:34-40; Luke 14:13-14.

7 See U.N. Framework Convention on Climate Change,

Subsidiary Body for Implementation, Heport on National

Greenhouse Gas Inventory Data from Parties Included in Annex

I to the Convention for the Period 1990-2003, 14 tbl.4, U.N. Doc.

FCCC/SBI/2005/17 (Oct. 12, 2005), available at <http://unfecc.

int/resource/docs/2005/sbi/eng/17.pdf>; U.N. Framework

Convention on Climate Change, Subsidiary Body for

Implementation, Sixth Compilation and Synthesis of Initial

National Communications from Parties Not Included in Annex I

to the Convention, Inventories of Anthropogenic Emissions by

6

Amici therefore have joined the many members of the

religious community who have expressed grave concern

about unmitigated climate change. In May 2001, Amici

joined 41 heads of major denominations and other senior

religious leaders in issuing a collective statement that

climate change threatens “the future of God’s creation on

earth; the nature and durability of our economy; our pub-

lic health and public lands; the environment and quality

of life we bequeath our children and grandchildren. We

are being called to consider national purpose, not just pol-

icy.”? Likewise, in a November 2002 statement (reiterated

in 21 state-level statements in 2003, 2004, and 2005),

Amici and senior religious leaders from a diverse array of

Christian and Jewish denominations and groups stated,

We are deeply distressed by evidence that .. .

[g]lobal greenhouse gas emissions are projected to

increase average temperatures by 2.5 to 10.4 de-

grees Fahrenheit into the next century — bringing

rising seas, weather and agricultural disruptions,

floods, refugees, migrating diseases and other dis-

locations which most harm the planet’s poor and

vulnerable. The United States contributes 25% of

these world emissions.'°

Sources and Removals by Sinks of Greenhouse Gases, 7-8 tbl.1,

U.N. Doc. FCCC/SBI/2005/18/Add.2 (Oct. 25, 2005),-available at

<http://unfecc.int/resource/docs/2005/sbi/eng/18a02.pdf>.

® See Luke 12:48.

9 Let There Be Light: Energy Conservation and God’s Creation

(2001), -available at <http://www.protectingcreation.org/

documents/LetThereBeLight.html>.

© Interfaith Climate and Energy Campaign, An Open Letter to

U.S. Automobile Companies (2002), available’ at

<http://www.coejl.org/action/FinalOpenLetter] 1_18_02.pdf>.

7

Many other Christian groups and leaders have expressed

similar concerns in urging action to mitigate climate

change.!!

Amici believe that time is of the essence in responding

to climate change. Section 202(a)(1) of the Clean Air Act

gives EPA the authority to control emissions from motor

vehicles, one of the most significant sources of greenhouse

gases. Given the severe consequences of unabated climate

change, EPA should have exercised that authority in re-

sponse to the rulemaking petition.

1! See, eg., H.E. Archbishop Celestino Migliore, Apostolic

Nuncio, Permanent Observer of the Holy See to the United

Nations, Statement at the High-level Segment of the 14th

Session of the Commission on Sustainable Development of the

Economic and Social Council (May 11, 2006), available at

<http://www.holyseemission.org/11May2006%20CSD.html>;

Conference of Catholic Bishops, Global Climate Change: A Plea

for Dialogue, Prudence, and the Common Good (2001), available

at <http://www.usccb.org/sdwp/international/globalclimate.

htm>; Evangelical Climate Initiative, Climate Change: An

Evangelical Cali to Action (2006) (subscribed by 86 evangelical

Christian leaders), available at <http://www.christiansand

climate.org/statement>; 75th General Convention of The

Episcopal Church, Response to Global Warming (June 2006),

available at <http://www-.ncric.com/episcopal_global_warming.

html>; United Methodist Church, General Conference 2004,

Concern for Climate Change (May 3, 2004), available at

<http://archives.umc.org/Calms/petition.asp?mid=2886& Petitio

n=1027&test=true>; Reformed Church in America, Climate

Change (1993), available at <http://www.nrpe.org/issues/i_air/

air_mainlineO1.htm>; World Council of Churches, A Spiritual

Declaration on Climate Change Made by Faith Community

Participants during the United Nations Climate Change

Conference (COP11 and COP/MOP1) (Dec. 4, 2005), available

at <http://www.wec-coe.org/wec/what/jpc/climatechange-cop 11.

htm|>.

8

Il. EPA ERRED IN IGNORING THE HAZARDS

THAT CLIMATE CHANGE POSES FOR

“PUBLIC HEALTH OR WELFARE.”

If allowed to proceed apace, climate change will cause

and aggravate severe storms, droughts, floods, wildfire,

and disease epidemies-and-thus will precipitate a variety

of humanitarian crises. The burdens of these disasters

would weigh most heavily on those who already struggle

for survival. By multiplying and magnifying disasters,

climate change also would interfere with the relief work

that Amici and other humanitarian organizations imple-

ment and support.

In “declining” to adopt standards under section

202(a)(1) of the Clean Air Act for motor vehicle emissions

of greenhouse gases, EPA ignored these hazards. Instead,

it based its denial of the rulemaking petition on a variety

of irrelevant “policy” considerations and a generic com-

plaint that the science of climate change involves too

much uncertainty. As Petitioners demonstrate, it was er-

ror for EPA to rely on “policy” factors beyond those en-

shrined in the statute.'? Likewise, uncertainty, without

more, does not demonstrate that climate change cannot

“reasonably be anticipated to endanger public health or

welfare.”'® To properly apply this “endangerment” stan-

dard, EPA should have considered what peril awaits if the

putative uncertainty recedes and reveals climate change

to be harmful. An uncertain harm is not the same as no

harm at all, and EPA misapplied section 202(a)(1) by

treating it as such.

12 See Brief for the Petitioners at 35-48.

13 42 U.S.C. § 7521(a)(1).

9

A. Climate Change Threatens to Exacer-

bate Human Suffering, Particularly for

the Most Vulnerable.

As more fully described in the amicus brief submitted

by eighteen climate scientists, only de minimis debate

persists in the scientific community about the fact of cli-

mate change and the significant contribution that human

emissions of greenhouse gases, including motor vehicle

emissions, make to that change.’ Evidence is likewise

accumulating to show that climate change is beginning to

affect natural and human communities and that those

effects are likely to grow worse with continuing un-

checked emissions of greenhouse gases.!5 The science

paints a sobering picture of a world fundamentally trans-

formed for the worse by a warming climate.

Climate change poses a dramatic threat to a host of

species and ecosystems around the world. But a warming

climate also gravely threatens human communities and

particularly those living closest to the edge of survival,

such as the poor, the homeless, and inhabitants of mar-

ginal lands. Climate change will also push more of hu-

manity toward that edge. These effects are tragedies in

the making, and crucially, tragedies of our own making.

Beyond causing a general increase in average global

temperature, climate change will produce more extreme

14 See Brief of Amici Curiae Climate Scientists David Battisti et

al. in Support of Petitioners; see also, e.g., Naomi Oreskes, The

Scientific Consensus on Climate Change, 306 Science 1686

(2004) (reviewing abstracts for 928 peer-reviewed articles on

climate change published in scientific journals between 1993

and 2003 and finding none that disputes the existence of that

change or the anthropogenic contribution to it).

15 See Intergovernmental Panel on Climate Change, Third

Assessment Report, Climate Change 2001: Impacts, Adaptation,

and Vulnerability (2001) (hereinafter “IPCC”), available at

<http://www.grida.no/climate/ipcc_tar/wg2/index.htm>.

10

weather events.'® A significant and growing body of evi-

dence suggests that warming oceans have already begun

to intensify hurricanes and tropical storms,'’ and indeed,

2005 set numerous records for such storms.'* Beyond

tropical storms, more severe weather also entails an in-

crease in extreme precipitation events and a greater risk

of flooding in many parts of the world.'® Paradoxically,

changing weather patterns simultaneously threaten to

cause or worsen catastrophic droughts and potentially ex-

acerbate desertification in some regions.”° Climate models

also predict more severe and longer summer heat waves.?!

16 See IPCC, supra note 15, at 458-60.

17 See James B. Elsner, Evidence in Support of the Climate

Change: Atlantic Hurricane Hypothesis, 33 Geophysical

Research Letters __ (forthcoming 2006); Thomas R. Knutson &

Robert E. Tuleya, Jmpact of CO2-Induced Warming on

Simulated Hurricane Intensity and Precipitation: Sensitivity to

the Choice of Climate Model and Convective Parameterization,

17 J. Climate 3477 (2004); M.E. Mann & K.A. . Emanuel,

Atlantic Hurricane Trends Linked to Climate Change, 87 Eos

233 (2006); Kevin E. Trenberth & Dennis J. Shea, Atlantic

Hurricanes and Natural Variability in 2005, 33 Geophysical]

Research Letters L12704 (2006).

18 See Nat'l] Oceanic & Atmospheric Admin., NOAA Reviews

Record-Setting 2005 Atlantic Hurricane Season: Active

Hurricane Era Likely to Continue (updated Apr. 13, 2006),

<http://www.noaanews.noaa.gov/stories2005/s2540.htm>.

19 See IPCC, supra note 15, at 38, 205-06, 459-60; P.C.D. Milly

et al., Increasing Risk of Great Floods in a Changing Climate,

415 Nature 514 (2002).

20 See IPCC, supra note 15, at 206-07, 460, 519.

2! See Center for Health and the Global Environment, Harvard

Medical School, Climate Change Futures: Health, Ecological

and Economic Dimensions 53-54 (2005),

<http://www.climatechangefutures.org/pdf/CCF_Report_Final_1

0.27 pdf>; IPCC, supra note 15, at 397-98, 457-58.

11

Climate change’s effects reach beyond the weather.

Warmer spring and summer temperatures are likely to

increase the frequency and intensity of wildfires.2? Fur-

ther, a warmer climate and changing precipitation pat-

terns will encourage the spread of infectious diseases such

as malaria, by both expanding the range in which they

currently occur and allowing them to thrive in regions

previously inhospitable to them, including parts of the

United States.?%

These manifestations of a warming climate have po-

tentially dire consequences for humanity. Their most dev-

astating consequences, however, are reserved for the poor,

the homeless and landless, and inhabitants of marginally

productive lands.”4 Those with the most tenuous grasp on

survival are least able to adapt to changing circumstances

and new risks.”5

Hurricanes Katrina and Rita powerfully illustrated

the destruction and disruption that severe storm activity

can cause and their unequal distribution within and

among communities. Such storm events can kill, injure,

and leave homeless countless victims and can cripple the

public infrastructure and institutions that would other-

22 See Anthony L. Westerling et al., Warming and Earlier

Spring Increases Western U.S. Forest Wildfire Activity,

Sciencexpress, July 6, 2006, at 1; see also IPCC, supra note 15,

at 290.

23 See Andrew K. Githeko et al., Climate Change and Vector-

Borne Diseases: A Regional Analysis, 78 Bull. World Health

Org. 1136, 1141-42 (2000); IPCC, supra note 15, at 43, 462-72.

24 See IPCC, supra note 15, at 8, 44, 63, 458-59, 935; see also

Geoff O’Brien et al., Climate Change and Disaster Management,

30 Disasters 64, 64 (2006) (“Disasters triggered by natural

hazards are killing more and more people over time and costing

more. .. . The world’s poorer nations are disproportionately

affected, and the most vulnerable and marginalised people in

these nations bear the brunt.”).

25 See IPCC, supra note 15, at 895-96, 899.

12

wise respond to those losses.” As the 2005 storms re-

vealed, the poor and powerless often live in the areas

most susceptible to storm damage and are least able to

flee a coming storm.?”? Moreover, subsequent experience

has shown that those unable to flee on their own experi-

ence lasting problems.”®

The other effects of climate change are likely to be

similarly profound and unevenly distributed within and

among societies. Adverse effects on agricultural produc-

tivity, such as those caused by droughts and desertifica-

tion, will exacerbate hunger and _ malnutrition,

particularly in sub-Saharan Africa where people already

struggle to eke out a living from the Jand.?9 The increased

risk of disease similarly will be borne most heavily by the

26 See Brookings Institution, Metropolitan Policy Program, New

Orleans After the Storm: Lessons from the Past, a Plan for the

Future 13-20 (2005), available at <http://www.brookings.edu/

metro/pubs/20051012_NewOrleans.pdf> (hereinafter “New

Orleans After the Storm”); Shaila Dewan et al., Evacuees’ Lives

Still Upended Seven Months After Hurricane, N.Y. Times, (Mar.

22, 2006), at Al; see also IPCC, supra note 15, at 43 (noting that

increased storm severity “can cause direct loss of life and injury

and... loss of shelter, population displacement, contamination

of water supplies, loss of food production (leading to hunger and

malnutrition), increased risk of infectious disease epidemics . . .,

and damage to infrastructure for provision of health services’).

27 See New Orleans After the Storm, supra note 26, at 14-20.

28 See Stacey Plaisance, Those Who Fled Katrina on Own Did

Better, Chi. Trib., Aug. 14, 2006 (describing study finding that

“[e]vacuees who escaped Hurricane Katrina's flooding on their

own are faring better almost a year later than the thousands

rescued and dumped in cities saturated with evacuees”).

29 See IPCC, supra note 15, at 44, 519-20; Millennium

Ecosystem Assessment, Ecosystems and Human Well-Being:

Desertification Synthesis (2005), <http://www.inweh.unu.edu/

inweh/MA/Desertification-Synthesis.pdf>.

13

poor in developing nations.*° Sweltering summer heat

waves will take their toll principally on the defenseless —

the aged, the sick, and the poor — whe lack effective ac-

cess to air conditioning and health care or are most sensi-

tive to the physiological effects of warmer temperatures.*!

Indeed, record-setting summer weather in the past sev-

eral years has left hundreds dead each year, especially

among the elderly.*?

Beyond the direct effects-on life and health, climate

change will leave many landless and homeless — the

refugees of climate change.*® In developing nations, disas-

30 See IPCC, supra note 15, at 43 (“In areas with limited or

deteriorating public health infrastructure, increased

temperatures will tend to expand the geographic range of

malaria transmission to higher altitudes . . . and higher

latitudes ... .”).

31 See id. at 43, 397; Ctrs. for Disease Control, Heat Related

Deaths—United States, 1999-2003 (July 28, 2006),

<http://www.cdc.gov/mmwr/preview/mmwrhtm|I/mm5529a2.htm

>.

32 See, e.g., Ctrs. for Disease Control, supra note 31; Amanda

Covarrubias, California Heat Wave Deaths Prompt Health

Study, L.A. Times, Aug. 3, 2006; Susana Conti et al.,

Epidemiologic Study of Mortality During the Summer 2003

Heat Wave in Italy, 98 Envtl. Research 390 (2005).

33 See IPCC, supra note 15, at 397; Norman Meyers,

Environmental Refugees: An Emergent Security Issue,

Organization for Security and Cooperation in Europe, 13%

Economic Forum, Prague (May 22, 2005),

<http://www.osce.org/documents/eea/2005/05/14488_en.pdf>

(“When global warming takes hold, there could be as many as

200 million people overtaken by disruptions of monsoon

systems and other rainfall regimes, by droughts of

unprecedented severity and duration, and by sea-level rise and

coastal flooding.”); O’Brien et al., supra note 24, at 68

(“Climate-displaced persons may suffer complex emergencies

and strife as they flee with disregard for clan, tribal, and

national boundaries.”).

14

ters can also significantly impede economic development:

“The losses caused by Hurricane Mitch to Honduras and

Nicaragua in 1998 totalled more than the combined gross

domestic product . . . of both countries, setting develop-

ment back 20 years.”*4

B. Climate Change Also Threatens

Amici’s Efforts to Care for the Needy,

Including Victims of Natural Disasters.

Called to service in the Christian tradition of charity

and solicitude for the most needy, Amicus CWS and their

members, the members of Amicus National Council, and

Catholic groups working with Amicus NCRLC are active

participants in disaster and poverty relief efforts around

the world, including the recent responses to Hurricanes

Katrina and Rita. Climate change threatens this work.

Through their Emergency Response Program, CWS

and its partners provide emergency materials — food,

medical supplies, blankets, and temporary shelter — to

thousands of children, women, and men in times of crisis

around the world.** For example, last year, CWS helped

survivors of tropical hurricanes in Cuba and Mexico se-

cure safe temporary shelter after the onslaught of Hurri-

canes Dennis and Emily.

CWS’s humanitarian work continues long after the

initial crises are over. Through their Social and Economic

Development Program, Amici provide long-term technical

assistance, emergency management training, and spiri-

tual encouragement to help support communities through

the recovery process and avert future emergencies.*®

4 O’Brien et al., supra note 24, at 69.

35 See Church World Service Overview, <http://www.church

worldservice.org/brochures/cws.htm|]>.

36 Jd.; see also Church World Service Emergency Response

Program: International Response, <http://www.cwserp.org/

international.php> (describing CWS's current international

emergency response efforts, including responses to floods in

15

Domestically, CWS and the member denominations of

the National Council support the relief efforts of local

faith communities as they assist survivors coping with the

unimaginable losses that natural disasters cause. In the

aftermath of Hurricane Katrina, for example, CWS sent

more than 70 shipments of blankets, health kits, school

kits, emergency cleanup buckets, kids’ kits, baby kits, In-

terchurch Medical Assistance medicine boxes, and UN]-

CEF recreational kits to help hurricane survivors.*’ A

year after the tragedy, the National Council, CWS, and

Catholic groups working with NCRLC remain involved in

the long-term recovery of the affected communities. They

have mentored, trained, and channeled financial support

to new community recovery organizations, which will co-

ordinate volunteer and skilled labor for home rebuilding.

Amici are committed to support these groups. Moreover,

they or their members have distributed millions of dollars

in financial assistance to aid Gulf Coast recovery opera-

tions, have provided support services to clergy and care-

givers in the area, and have replaced computers and other

supplies in damaged schools.*

Of course, even under existing climatic conditions

Amici and all the relief organizations in the world cannot

provide needed care for the many victims of natural disas-

ters. Climate change promises to “dramatically expand

this shortfall. Without immediate action to cut emissions

of greenhouse gases, even redoubled efforts by relief

groups will be inadequate to the humanitarian relief task.

The awesome scale of the impacts of a warmer climate

would dwarf any response that such groups could mount,

even with a heroic commitment of public and private re-

Serbia, a mudslide in the Philippines, and mudslides and floods

in Indonesia, and relief and food security in Ethiopia).

3? See Church World Service Emergency Response Program—

Hurricane Katrina Update (June 19, 2006), <http://www.

cwserp.org/reportview .php?entry=503>.

38 Id.

16

sources to the effort. Moreover, it is likely that the re-

sources available to CWS and other relief groups will not

substantially increase with the growing severity of these

crises. The resources of Amici and their member groups

thus will be increasingly stretched thin, undermining the

adequacy of the services that they already provide.

C. EPA Misapplied Section 202(a)(i) By

Failing to Consider the Disastrous

Consequences of Climate Change.

EPA erred by failing to consider the potential impacts

of climate change, including the severe impacts discussed

above, before denying the rulemaking petition. Such con-

sideration is essential to a reasoned determination of

whether the climate change “endanger[s] public health or

welfare.”

Motor vehicle emissions contribute to atmospheric

concentrations of greenhouse gases, which cause climate

change, and which in turn impairs both “public health”

and “welfare.” “Public health” is undefined in the statute,

but the Act appears to use it in its ordinary sense of “the

health of the public.” As described previously, the disas-

ters that climate change wil] cause and exacerbate will

produce fatalities, injuries, malnutrition, and illness, all

of which are impacts to “public health.”

The disasters produced by unmitigated climate change

would likewise harm “public . . . welfare.” The Act defines

“[a]ll language referring to effects on welfare” as

Includ[ing], but . . . not limited to, effects on soils,

water, crops, vegetation, manmade materials,

animals, wildlife, weather, visibility, and climate,

damage to and deterioration of property, and haz-

38 Dictionary definitions typically refer to the science or

profession of public health, e.g., Webster's Ninth New Collegiate

Dictionary 952 (1983), but that usage makes little sense when

the phrase is juxtaposed with the word “endanger,” as in section

202(a)(1).

17

ards to transportation, as well as effects on eco-

nomic values and on personal comfort and well-

being, whether caused by transformation, conver-

sion, or combination with other air pollutants.”

Disasters would affect “personal comfort and well-being”

by leaving people homeless and landless and destroying

schools and places of employment and worship. In dis-

rupting economic activity, most severely in developing na-

tions with fragile economies,*! climate disasters would

have “effects on economic values.” They would destroy

and damage “crops,” domestic “animals,” and other public

and private “property.” Finally, the economic and logisti-

cal burdens that climate change places on relief organiza-

tions such as Amicus CWS are cognizable “effects on

economic values.”

EPA never addressed these consequences of climate

change; indeed, it altogether ignored the harm that cli-

mate change could cause. Instead, EPA identified several

irrelevant policy considerations and recited what it saw

as uncertainties in the climate science.“ As Petitioners

describe, however, the policy considerations are not cogni-

zable under the statutory standard, and the bare invoca-

tion of uncertainty does not provide a reasoned basis for

denying the rulemaking petition.** Congress's use of the

phrase “may reasonably be anticipated to endanger” in

section 202(a)(1) shows that uncertainty simpliciter can-

not answer the question whether pollution produced by

motor vehicle emissions poses a threat to public health or

# 42 U.S.C. § 7602(h).

41 O’Brien, supra note 24, at 69.

42 See Control of Emissions From New Highway Vehicles and

Engines, 68 Fed. Reg. 52,922, 52,929-31 (Sept. 8, 2003). In fact,

as the climate scientists’ brief shows, that uncertainty is more

illusion than fact. See Brief of Amici Curiae Climate Scientists,

supra note 14, at 10-17.

43 See Brief for the Petitioners at 35-48.

18

welfare and thus demands a regulatory response. To the

extent that EPA’s decision relied on uncertainty, it was

obliged to explain why that putative uncertainty demon-

strates that climate change cannot “reasonably be antici-

pated to endanger public health or welfare.” It failed to

do so.

A reasoned explanation must assess the harm, how-

ever uncertain, that uncontrolled climate change could

cause. A rational decision about “endangerment” must

account for both the likelihood or uncertainty of harm and

the magnitude of the potential harm:

Danger . . . is not set by a fixed probability of

, but rather is composed of reciprocal ele-

ments of risk and harm, or probability and sever-

ity. That is to say, the public health may properly

be found endangered both by a lesser risk of a

greater harm and by a greater risk of a lesser

harm.*

An uncertain harm is nce. the same as no harm at all; an

uncertain harm might properly be discounted by the un-

certainty, but it cannot be ignored.“6 For example, x

chance of a one-dollar harm is not the same as x chance of

a multi-billion-dollar harm.‘’? EPA’s decision implies that

44 See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983) (holding that “the agency must

examine the relevant data and articulate a_ satisfactory

explanation for its action including a ‘rational connection

between the facts found and the choice made”’).

45 Ethyl Corp. v. EPA, 541 F.2d 1, 18 (D.C. Cir. 1976)

(citations omitted).

4 See Cass R. Sunstein, Risk and Reason: Safety, Law, and the

Environment 103 (2002) (“The fact that a danger is unlikely to

materialize is hardly a good objection to regulatory controls.”).

47 Amici do not mean to suggest that EPA must quantify or

monetize risks or harm under section 202(a)(1); risk and harm

are quantified here only for illustration.

19

a given degree of scientific uncertainty justifies inaction

whether the potential harm is astronomical or infinitesi-

mal. It is conceivable that a risk may be so unlikely that

even exceptionally serious harm could be discounted to

irrelevance, but one cannot conclude as much without

first assessing the severity of the harm. EPA did not do

so.

In considering whether x chance of y harm amounts to

endangerment of public health or welfare, it is for EPA, of

course, to establish x and y and to decide in the first in-

stance whether together they amount to “endangerment.”

But EPA cannot shirk its responsibility to render a deci-

sion on each of these points and to explain those deci-

sions. EPA ignored y altogether and thus “entirely failed

to consider an important aspect of the problem.”

EPA erred in disregarding the potentially dangerous

effects of motor vehicles’ emissions of greenhouse gases

and the changes in climate to which they contribute. The

impacts of climate change on humanity and the environ-

ment described in this brief are exactly the kinds of im-

pacts on public health and welfare that section 202(a)(1)

obligates EPA to consider. Simply describing the ostensi-

ble uncertainty of those effects, as EPA has done here,

does not answer the question that Congress posed in sec-

tion 202(a)(1) of the Clean Air Act.

48 Motor Vehicle Mfrs., 463 U.S. at 43.

20

CONCLUSION

For the reasons stated herein, Amici respectfully re-

quest that this Court reverse the decision of the Court of

Appeals.

Respectfully submitted,

: FRAN M. LAYTON*

MATTHEW D. ZINN

ANDREA RUIZ-ESQUIDE

SHUTE, MIHALY & WEINBERGER LLP

396 Hayes St.

San Francisco, CA 94102

(415) 552-7272

DATED: August 31, 2006

*Counsel of Record