Amicus Curiae Brief — Massachusetts v. EPA

60 (ta)

No. 05-1120

In The

Supreme Court of the United States

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COMMONWEALTH OF MASSACHUSETTS, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

S

BRIEF OF AMICI CURIAE NORTH COAST RIVERS

ALLIANCE, DESERT PROTECTION SOCIETY,

WESTSIDE ASSOCIATION TO SAVE

AGRICULTURE, CALIFORNIA SPORTFISHING

PROTECTION ALLIANCE, SAVE MEDICINE

LAKE COALITION, KLAMATH FOREST ALLIANCE,

SAN JOAQUIN AUDUBON SOCIETY AND

NORTH CASCADES CONSERVATION COUNCIL

IN SUPPORT OF PETITIONERS

«

STEPHAN C. VOLKER*

JOSHUA A.H. HARRIS

MARNIE E. RIDDLE

LAW OFFICES OF STEPHAN C. VOLKER

Attorneys for Amici Curiae

436 14th Street, Suite 1300

Oakland, California 94612

Telephone: (510) 496-0600

Facsimile: (510) 496-1366

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342 2831

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICI CURIAE ............000000000+- 1

SUMMARY OF ARGUMENT. ...........ceccsceccsessesesesesesceees 5

PETER ERO TIESR: ORN MD TOO Per 7

I. GLOBAL WARMING THREATENS SIGNIFI-

IT.

CANT HARM TO PUBLIC HEALTH AND

A. Global Warming Has Substantial Adverse

Impacts on Vital Natural Resources and

Dependent Economic Sectors ..................66

i —: Bee III cischdriesichiaihisianiisiaddaipuicuupeatidiancnnes

2. Agriculture and Forestry ..................06

3. Recreational and Commercial Fishing ..

4. General Economic Impacts ...................

B. Global Warming Harms Human Health ....

1. Extreme Temperatures ..............::::cc00+

2. Extreme Weather Events....................::

i cate

GLOBAL WARMING’S SPECIFIC ADVERSE

IMPACTS ON PETITIONERS GIVE THEM

OE ANTE CIE cocicininnietenincntcecenstainipenniniente

A. The Harm Is Concrete ................................

B. The Harm Is Caused By EPA’s Failure to

Ne ai cihaisictiintaieaciteiaiaiahiadishidhd adit eniaaiieaseiibiibingabiies

C. The Harm Is Redressable.......................006

D. The Harm Is Within the Zone of Inter-

ests Contemplated By the Statute...........

il

TABLE OF CONTENTS - Continued

Page

lil. EPA HAS AUTHORITY UNDER THE CLEAN

AIR ACT TO REGULATE CARBON DIOXIDE... 24

IV. EPAS REFUSAL TO REGULATE CARBON

DIOXIDE IS ARBITRARY AND CAPRICIOUS... 26

Eas dicsiciincnitionsiieissigelesuiadiasinaiiiocitidintininibiieitts 29

ili

TABLE OF AUTHORITIES

FEDERAL CASES

Association of Data Processing Organizations v.

NA, Te CPs WH Ge cpencndsccesnssescssescossenprontenes

Bennett v. Spear, 520 U.S. 154 (1997) .......cceceeeeeeseesees

Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932).......

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

Council, Inc., 467 U.S. 837 (1984).............ceeeceeeeeeee

City of Los Angeles v. National Highway Traffic

Safety Admin., 912 F.2d 478 (D.C. Cir. 1990)..........

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

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

Federal Election Commission v. Akins, 524 U.S. 11

FEC v. Democratic Senatorial Campaign Commit-

Re Cy CI Ca hacttcinicienttinnsdintiingiaicuadiiniiatanigaiition

FDA v. Brown & Williamson, 529 U.S. 120 (2000)......

Florida Audubon Society v. Bentsen, 94 F.3d 658

I a

FMC v. Seatrain Lines, Inc., 411 U.S. 726 (1973)........

Friends of the Earth v. Laidlaw Environmental

Services, Inc., 528 U.S. 167 (2000)................ce eee

FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965) ....

- Guardians Ass’n v. Civil Service Com’n of City of

New York, 463 U.S. 582 (1983)..........::cccccsssseseesseeeees

Lead Industries Ass’n v. EPA, 647 F.2d 1130 (D.C.

SIDES | SINE siccscnnstovonsentaciinneinitaosisonstnesedeundisbabtipinnstotacistse

iv

TABLE OF AUTHORITIES - Continued

Page

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......... 18

Manhattan General Equipment Co. v. Commis-

ata, SI Ta: GF Ce cs ccesivsnsncnintevinsnnancinindatsiasiinin 25 -

NLRB v. Brown, 380 U.S. 278 (1965) .0.........ccceceeeeeeeeeeeeees 24

SEC v. Sloan, 436 U.S. 103 (1978)................ssesscccccssssseeees 24

Sierra Club v. Morton, 405 U.S. 727 (1972)...............00000 19

Social Security Board v. Nierotko, 327 U.S. 358

CRIT sicnsissocscncsncnssibiiepedcdenadnesiniaiibedsiededeebebiaiiniausianaiaiaal 24

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669 (1973).... 20, 21

Volkswagenwerk v. FMC, 390 U.S. 261 (1968)..............0.. 24

Webster v. Luther, 163 U.S. 331 (1896)..............cccccceeseeeeees 24

Whitman v. American Trucking Ass’n, Inc., 531 U.S.

GEE GI svcctscenccscninsitisierichtcntaninctatiiaiiiiiiimainisiniipessaiiianiaas 27

Whitmore v. Arkansas, 495 U.S. 149 (1990) .............00.8. 18

FEDERAL STATUTES

42 United States Code

OD FUT ici viccsicnscsninsiciiesacssnancennbsncisunepipeainienmaeiienini 25

OS FEED i cccistactnisicesincnaniasndciteendanidgumaessiaianlidaiaia mania 26

OD FID sxrcccccnscessosunsecsccsinssuiuseccuitntintionciusaanaan 25

FEDERAL REGISTER

Control of Emissions from New Highway Vehicles

and Engines, 68 Fed. Reg. 52,922, 52,928 (Sept.

1D BRIT kcccissecevecticinatinictnnenapasbosaniecbebediasabuininaaiieananiaa 28

1

INTERESTS OF THE AMICI CURIAE'

Amici are environmental] organizations with signifi-

cant experience in studying, managing and protecting

natural and cultivated resources in the states of California

and Washington, including mountains, deserts, agricul-

tural lands, forests, rivers, lakes, estuaries and their

ecosystems. They are the North Coast Rivers Alliance,

Desert Protection Society, Westside Association to Save

Agriculture, California Sportfishing Protection Alliance,

Save Medicine Lake Coalition, Klamath Forest Alliance,

San Joaquin Audubon Society and North Cascades Con-

~servation Council. Amici represent neither party in this

action, and write solely to offer an environmental perspec-

tive on the significant issues of public welfare at stake in

this dispute.

Amicus North Coast Rivers Alliance (“NCRA”) is an

unincorporated association of conservation leaders from

throughout the north coast of California. NCRA has

actively participated in the review and submission of

comments on land and water resource development

projects along the north coast of California, and has

participated in litigation to enforce compliance by state

and federal agencies with state and federal environmental

laws. NCRA is particularly concerned regarding the

adverse effects of greenhouse gas emissions on river flows

and the well being of fish and wildlife dependent on them

in northern California.

~

' All parties have consented to the submission of this brief, and

their letters of consent have been filed with the Clerk of this Court.

This brief was not written in whole or in part by counsel for a party. No

person or entity other than amici made any monetary contribution to

the preparation or submission of this brief.

2

Amicus Desert Protection Society (“DPS”) is a non-

profit California corporation formed in 1993 for the pur-

pose of protecting and preserving the scenic, scientific,

historic and recreational resources of the California desert.

DPS and its members use and enjoy federal lands

throughout the California desert for a variety of outdoor

pursuits, including scientific study, recreation, aesthetic

enjoyment and agriculture. DPS and its members are

particularly concerned regarding the adverse effects of

greenhouse gases on climate change in the California

desert, particularly the dramatically increasing summer

temperatures experienced over the past three decades, and

the adverse effects of these increases on the wildlife that

inhabit the California desert, particularly endangered

species including the Peninsular Big Horn sheep and the

Desert tortoise. DPS has engaged in public education to

promote awareness of the unique and fragile resources of

the California desert, and has participated in state and

federal litigation to protect and restore California’s unique

desert resources.

Amicus Westside Association to Save Agriculture

(“WASA”) is a non-profit public benefit corporation formed

in California in 1984 for the purpose of engaging in public

education and advocacy to promote the protection and

restoration of agricultural lands and uses in the Russian

River Valley of California’s north coast. WASA’s members

make productive and healthy use of their agricultural

lands and the natural environmental amenities of the

Russian River Valley, and are vitally interested in protect-

ing these resources and uses in the face of climate change

due to greenhouse gas emissions. WASA and its members

have monitored and submitted comments on land and

water management projects throughout the Russian River

3

basin, and have participated in litigation as necessary to

enforce agency compliance with state and federal envi-

ronmental laws. WASA and its members are particularly

concerned regarding the adverse effects of climate change

on the Russian River and adjacent groundwater aquifers,

including longer droughts and more severe flooding.

Amicus California Sportfishing Protection Alliance

(“CSPA”) is a non-profit public benefit corporation organ-

ized under the laws of California for the purpose of pre-

serving and enhancing California public-trust fishery

resources and enforcing the state and federal laws that

protect them. CSPA’s members use northern California

rivers that drain the Sierra Nevada and the Coast Range

for sport and commercial fishing, aesthetic enjoyment,

nature study, boating and swimming. For decades CSPA

and its members have been engaged in extensive public

education and advocacy efforts throughout northern

California to protect its lake and riverine resources from

harmful land and water use management. CSPA and its

members are particularly concerned regarding the adverse

effects of greenhouse gas emissions on the shrinking

Sierra Nevada snowpack and declining summer and fall

flows in the rivers of the Sierra Nevada and the California

Coast Range.

Amicus Save Medicine Lake Coalition (“SMLC”) is an

unincorporated association formed in 1999 for the purpose

of representing a broad spectrum of environmental organi-

zations, Native Americans, recreationists and residents of

the Mount Shasta region who have joined together to

protect the extraordinary scenic resources, unique geologic

formations, abundant wildlife, pristine air and water

quality, sacred Native American cultural resources and

outstanding recreational opportunities in the Medicine

4

Lake Highlands east of Mount Shasta. SMLC and its

members use and enjoy these resources and are concerned

regarding the adverse effects of greenhouse gas emissions

on the shrinking snowpack on Mount Shasta and in the

California Cascade Mountains and the resulting declines

in summer river flows and increases in river temperatures

in the region.

Amicus Klamath Forest Alliance (“KFA”) is a non-

profit public benefit corporation organized under the laws

of California for the purpose of promoting sustainable

forest ecosystems and economies in northern California

and southwest Oregon. KFA and its members actively

participate in governmental decisionmaking processes

with respect to lands managed by the United States Forest

Service, the Bureau of Land Management and National

Park Service in northern California and southwest Ore-

gon. KFA and its members study and enjoy the mountains,

forests, lakes and rivers of the region for nature study,

fishing, boating, hiking, photography, aesthetic enjoyment

and educational, cultural and ceremonial activities. KFA

and its members are concerned regarding the adverse

effects of greenhouse gas emissions on climate change in

the Cascade ranges of northern California and southwest

Oregon, particularly with regard to increasing simmer

temperatures and declining river flows, and the resulting

adverse impacts on fish and wildlife.

Amicus San Joaquin Audubon Society (“SJAS”) is a

non-profit public benefit corporation organized under the

laws of California whose members reside primarily in the

California Central Valley. Its members use the San

Joaquin, Mokelumne and Sacramento rivers and their

deltas and the San Francisco Bay-Delta estuary for

nature study, recreation and aesthetic enjoyment. SJAS

5

and its members engage in educational and advocacy

activities to promote public concern for and conservation of

the endangered ecosystem of the Bay-Delta and its tribu-

tary rivers. SJAS and its members are particularly con-

cerned regarding the adverse effects of greenhouse gas

emissions on the quality and quantity of water flowing in

northern California’s rivers, and the adverse impacts of

increasing temperatures on the shrinking Sierra snowpack

and declining summer and fall flows in Sierra Nevada

rivers tributary to the Bay-Delta.

Amicus North Cascades Conservation Council

(“NCCC”) is a non-profit organization formed in 1957

whose public education campaign inspired Congress to

establish the North Cascades National Park and Lake

Chelan National Recreational Area in 1968. NCCC and its

members actively participate in legislative, administrative

and judicial fora to protect and preserve the lands, waters,

plants and wildlife of the North Cascades ecosystem.

NCCC and its members are vitally interested in protecting

the alpine and sub-alpine ecology of the North Cascades

mountains, and are particularly concerned regarding the

adverse impacts of greenhouse gas emissions on the North

Cascades’ shrinking glaciers and declining summer and

fall river flows and fish and wildlife populations.

¢

SUMMARY OF ARGUMENT

Global warming poses significant, widespread and

well documented threats to public health and welfare.

Global warming is causing sea levels to rise, glaciers and

mountain snowpacks to shrink, summer and fall river

6

flows to decline, wildfires to increase, hurricanes to inten-

sify, summer heat waves and droughts to become more

severe and prolonged, and widespread adverse impacts to

agricultural productivity, recreational and commercial

fishing, forestry, and human health and safety, particu-

larly among the elderly and infirm.

Although global warming’s adverse impacts are

widespread, they cause specific harm to petitioners, thus

conferring standing to bring this lawsuit. Petitioners have

suffered particular, concrete, actual, imminent and re-

dressable harms due to the respondent Environmental

Protection Agency Administratcr’s failure to regulate

carbon dioxide emissions that lead to global warming.

These harms are well within the zone of interests pro-

tected by the Clean Air Act.

EPA has clear statutory authority to regulate carbon

dioxide. Sections 103(g) and 302(g) of the Clean Air Act

specifically identify “carbon dioxide” as an “air pollutant”

over which the EPA Administrator has broad authority to

promulgate regulations.

The EPA Administrator’s refusal to regulate carbon

dioxide emissions based on generalized policy grounds

extraneous to the Clean Air Act’s structure and language

is arbitrary and capricious. Congress directed in section

202(a)(1) of the Clean Air Act that the EPA Administrator

“shall by regulation prescribe ... standards applicable to

the emission of any air pollutant from ... new motor

vehicles ... which in his judgment cause, or contribute to,

air pollution which may reasonably be anticipated to

endanger public health or welfare.” Since carbon dioxide

emissions directly contribute to global warming, and

7

global warming “may reasonably be anticipated to endan-

ger public health or welfare,” the EPA Administrator must

regulate such emissions. His failure to do so is an abuse of

discretion, and must be set aside.

\ rs

ARGUMENT

I. GLOBAL WARMING THREATENS SIGNIFICANT

HARM TO PUBLIC HEALTH AND WELFARE.

Global climate change is both a local and a global

issue that requires a national remedy. As a result of global

warming and associated weather pattern changes, some

regions of this country will suffer extreme hurricanes and

flooding while others experience extreme heat waves and

drought. Sea levels will rise, inundating coastal regions.

Glaciers and snowpacks will shrink, and summer and fall

river flows will decline in quantity and quality. Overall,

the acreage of total arable land and irrigated farmland

will diminish. California and other western states are

already seeing drastic changes in the environment due to

global warming. Summer temperatures are rising, crops

are failing, the Sierra Nevada snowpack is dwindling,

winter flooding is increasing and summer river flows are

declining. The elderly and the infirm are dying in un-

precedented heat waves.

These profound and grave changes in environmental

health call for informed, prompt and decisive regulatory

action. But as with acid rain, problems caused by in-

creased carbon dioxide emissions cannot be solved by

states acting and regulating alone. A national approach

such as the regulatory structure prescribed in the Clean

Air Act is essential to control excessive carbon dioxide

emissions, and to reduce the risks of global warming.

A. Global Warming Has Substantial Adverse

Impacts on Vital Natural Resources and

Dependent Economic Sectors

1. Fresh Water

Most Western states, including California, Oregon and

Washington, depend on mountain glaciers and seasonal

mountain snowpack to assure a year-round fresh water

supply for domestic and agricultural uses. This supply is

now at risk. Global warming has already impacted stream-

flows across the West. Each year, the mountain snow in

the Sierra Nevada and Cascades is accumulating later and

melting earlier, concurrent with a steady rise in average

annual temperature.’ This shortened season results in less

overall snowpack accumulation, and less freshwater

storage for human consumers. The mountain elevation

level at which freezing occurs rises with temperature,

meaning that much of the precipitation that once fell as

snow will now fall as rain, leading to more frequent and

severe flooding.”

Since springtime snowmelt has historically accounted

for 50 to 80 percent of freshwater flows across the West,

changes in the volume and timing of that freshwater

* LT. Stewart, et al., “Changes Toward Earlier Streamflow Timing

Across Western North America,”Journal of Climate 18:1136-1155 (April

15, 2005).

* D.F. Boesch et al., The Potential Consequences of Climate

Variability and Change on Coastal Areas and Marine Resources: Report

of the Coastal Areas and Marine Resources Sector Team. Silver Spring,

USGCRP: 163 (2000).

9

infusion have significant impacts on state water manage-

ment programs. Jd. This loss of snowpack not only causes

landslides, flash floods and lake overflow,* but also in-

creases annual variation in water flows in rivers, with

negative impacts on agricultural and recreational consum-

ers of that water. Furthermore, higher summer tempera-

tures and lower forest moisture create dry conditions

conducive to bark beetle infestations of forests and the

genesis and spread of wildfires.

Regional rainfall has dropped by 20 percent in many

parts of California since 1900.° Some models predict even

greater declines in precipitation as average temperatures

increase.° In combination with decreased snowpack and

more variable runoff flows, this drop in rainfall is likely to

precipitate a water crisis in California. As water budgets

in the West grow ever tighter, global warming will only

aggravate the intensity and frequency of future disputes.

2. Agriculture and Forestry

Farming across the United States will be adversely

affected by changes in rainfall distribution patterns,

higher temperatures, and drought. Contrary to premature

predictions by some that increased atmospheric carbon

* United Nations Environmental Programme (UNEP), Glacial

Lake Outburst Flood Monitoring and Early Warning System (available

at http://www.rrcap.unep.org/issues/glof ) (2000).

* T.R. Karl et al., “Indices of Climate Change for the United

States,” Bulletin of the American Meteorological Society, 77:279-291

(1996).

* J.M. Lenihan et al., “Climate Change Effects on Vegetation

Distribution, Carbon, and Fire in California,” Ecological Applications

13(6): 1667-1681 (2003).

10

dioxide will increase agricultural production,’ the negative

impacts of higher temperatures and a destabilized water

supply will outweigh any positive fertilization effect.

Experimental evidence demonstrates that the cereal

grasses (wheat, rice, and corn) producing most of the

nation’s calories benefit /east from increases in carbon

dioxide.* The slight increases in crop yields due to greater

concentrations of carbon dioxide in the air are more than

offset by higher temperatures and decreases in soil mois-

ture.’ In one empirical study, rice yield was found to

decline by ten percent for each one-degree rise in growing-

season minimum temperatures.” Furthermore, the accel-

erated growth of Some crops due to increased carbon

dioxide alone simultaneously diminishes the nutritional

quality of that crop.” Levels of protein decreased by an

average of 14 percent across the cereal grains studied

when they were exposed to increased levels of carbon

” R.M. Adams et al., “A Reassessment of the Economic Effects of

Global Climate Change on U.S. Agriculture,” Climatic Change

30(2):147-167 (1995).

* E.A. Ainsworth and S.P. Long, “What Have We Learned from

Fifteen Years of Free-Air CO2 Enrichment (FACE)? A Meta-Analytic

Review of the Responses of Photosynthesis, Canopy Properties and

Plant Production to Rising CO2,” New Phytologist 165:351-72 (2005).

* H. Fountain, “Observatory: Threat to Rice Crops,” NEW YORK

TIMES, December 12, 2000, F-5.

* Intergovernmental Panel on Climate Change, CLIMATE CHANGE

2001: IMPACTS, ADAPTATION AND VULNERABILITY, section 5.3 (Cambridge

University Press, Cambridge 2001).

" §. Peng et al., “Rice Yields Decline with Higher Night Tempera-

ture From Global Warming,” Proceedings of the National Academy of

Sciences 101(27):9971-9975 (July 6, 2004).

“ L.M. Jablonski, X. Wang, and PS. Curtis, “Plant Reproduction

under Elevated CO2 Conditions: A Meta-Analysis of Reports on 79 Crop

and Wild Species,” New Phytologist 156 (2002) 9-26.

11

dioxide.” Concentrations of iron and zinc also dropped

under the same conditions.“ Satellite data show that in

terms of sheer biomass, the productivity of plant life in the

northern hemisphere did increase from 1982 to 1991.”

More recent studies, however, found that between 1991

and 2002, widespread droughts due to global warming

caused a decrease in summer photosynthesis in much of

the northern hemisphere.” Alterations in rainfall distribu-

tion patterns, as well as more rapid spring snowmelt, are

causing increased erosion of farmland, and rising sea

levels are causing coastal erosion.”

Forests in many regions, including most of the west-

ern United States, face an increased risk of forest fires due

to global warming. The 10-year average acreage of boreal

forest burned in North America rested at around 2.5

million acres per year for decades, but has increased

steadily since 1970 to more than 7 million acres annually,

* “More Carbon Dioxide Could Reduce Crop Value,” Environment

News Service, October 3, 2002.

“ S.P. Seneweera and J.P. Conroy, “Growth, Grain Yield and

Quality of Rice (Oryza sativa L.) in Response to Elevated CO2 and

Phosphorus Nutrition,” Soil Science and Plant Nutrition 43:1131-1136

(1997).

* R.B. Myneni et al., “Increased plant growth in the northern high

latitudes from 1981 to 1991,” Nature 386:698-702 (April 17,1997).

* A. Angert et al., “Drier summers cance] out the CO2 uptake

enhancement induced by warmer springs,”Proceedings of the National

Academy of Sciences 102 (31): 10823-10827 (August 2, 2005); S.J. Goetz,

et al., “Satellite-observed photosynthetic trends across boreal North

America associated with climate and fire disturbance,” Proceedings of

the National Academy of Sciences 102 (38):13521-13525 (September 20,

2005).

" K. Zhang, B.C. Douglas and S.P. Leatherman, “Global Warming

and Coastal Erosion,” Climatic Change 64(1-2):41-58 (May 2004).

12

a 3-fold increase. Warmer temperatures are increasing

both the duration and intensity of the wildfire season in

the West.” Areas burned by wildfires each year in the

West will more than double over the next century. Jd. The

most severe effects of global climate change would occur in

the Sierra foothills, where the predicted number of poten-

tially catastrophic fires will increase by 143 percent in

grassland and 121 percent in chaparral.”

3. Recreational and Commercial Fishing

Oceans absorb most of the excess carbon dioxide

produced by land animals (including humans), either as

dissolved gas, or in the calcium carbonate skeletons of

marine animals. It is estimated that the oceans have

absorbed around half of all carbon dioxide generated by

human activities since 1800.” In water, dissolved carbon

dioxide becomes a weak carbonic acid, lowering the pH of

seawater. Jd. As the carbon dioxide content of the atmos-

phere has increased, the acidification of the oceans has

harmed many forms of ‘marine life, including several

species of commercial fish. Jd.

* U.S. Global Change Program, U.S. National Assessment of the

Potential Consequences of Climate Variability and Change Educational

Resources Regional Paper: Alaska (updated 12 October, 2003) (available

at http://www.usgerp.gov/usgerp/nacc/education/alaska/ak-edu-5.htm)

* S.W. Running, “Is Global Warming Causing More, Larger

Wildfires” Science 313:927-928 (August 18, 2006).

* MS. Torn, E. Mills, et al., Will Climate Change Spark More

Wildfire [-~.age? Lawrence Berkeley National Laboratory LBNL

Report No. +2592 (1998).

” C.L. Sabine et al., “The Oceanic Sink for Anthropogenic CO2,”

Science (July 16, 2004) 305 (5682):367-371.

13

Other warming-induced changes have serious ramifi-

cations for fisheries and ocean life. For instance, tempera-

ture anomalies in the North Atlantic have already

degraded the entire ocean food chain in that region,

starting from the bottom.” When ocean temperatures,

currents, and acidity change, the amount of planktonic

food available for fish larvae (and consequently the size of

fish populations) declines.” Migration patterns and spatial

distributions of large fish, such as bluefin tuna, have been

altered through climate-induced changes in prey abun-

dance.” Overall, global fish production is expected to fall

substantially as a result of rising ocean temperatures and

acidity.” Changes like this have already appeared in the

northeast Pacific ecosystem.”

The growing fluctuations in river water temperatures

can have significant negative impacts on the healtfi of

their fish populations.” Warmer water temperatures due

* J.-M. Fromentin & B. Planque, “Calanus and environment in the

eastern North Atlantic. 2. Influence of the North Atlantic Oscillation on

C. finmarchius and C. helgolandicus. Marine Ecology Prog. Service

134:111-118 (1996).

* D.H. Cushing, POPULATION PRODUCTION AND REGULATION IN THE

SEA: A FISHERIES PERSPECTIVE (Cambridge Univ. Press, Cambridge,

1995).

* J.J. Polovina, “Decadal variation in the trans-Pacific migration of

northern bluefin tuna (Thunnus thynnus) coherent with climate-

induced change in prey abundance.” Fish Oceanography 5:114-119

(1996).

* G.R. Walther et al., “Ecological Responses to Recent Climate

Change,” Nature 416:389-395 (March 28, 2002).

* J. A. McGowan, D. R. Cayan & L. M. Dorman, “Climate-ocean

variability and ecosystem response in the Northeast Pacific,” Science

281:210-217 (1998).

* D. Caissie, “The Thermal Regime of Rivers: A Review,” Freshwa-

ter Biology, 51(8):1389-1406 (August 2006).

14

to global warming reduce salmon size and numbers.”

These declines harm both the commercial and sport

fishing industries. In 1996, an estimated 9 million trout

anglers in the United States spent some 94 million person-

days fishing, generating up to $14 billion in economic

value.” An analysis of global warming impacts on trout

habitat predicts that up to 42 percent of existing fish

habitat in the West could be lost by 2090. Id.

The fishing industry also faces losses as coastal

wetlands, which serve as habitat or breeding grounds for

many fish species, are eliminated due to rising sea levels.”

A 50 percent loss in wetland area or productivity, expected

by the end of this century, is estimated to lead to a 15 to 20

percent loss in estuarine-dependent fish harvests. Id.

About 68 percent of all commercially harvested fish

species in the United States depend on wetlands for

habitat, food or protection. Jd. This translates into a total

catch reduction of at least nine percent due solely to sea

level rise. Id.

4. General Economic Impacts

Financial institutions are becoming aware of the

potential economic impacts of global warming and are

* D.W. Welch, Y. Ishida, and K. Nagasawa, “Thermal Limits and

Ocean Migrations of Sockeye Salmon (Oncorhynchus nerka): Long-term

Consequences of Global Warming,” Canadian Journal of Fisheries and

Aquatic Science 55:937-948 (1998).

* K. O'Neal, (Defenders of Wildlife). EFFECTS OF GLOBAL WARMING

ON TROUT AND SALMON IN U.S. STREAMS (2002).

* §. Fankhauser, Global Warming Damage Costs: Some Monetary

Estimates. Centre for Social and Economic Research on the Global

Environment (CSERGE) GEC Working Paper 92-29.

15

taking steps to mitigate the real risks. The world’s two

largest insurance companies, Munich Re and Swiss Re,

warned in a 2002 study (UNEP summary) that “the

increasing frequency of severe climatic events, coupled

with social trends” could cost almost $150 billion per year

in the next decade. Each 1 percent increase in annual

precipitation due to global warming has been estimated to

increase economic losses by as much as 2.8 percent.”

These losses will, through increased costs related to

insurance and disaster relief, burden insured businesses

and homeowners, taxpayers, and industry alike.

B. Global Warming Harms Human Health

1. Extreme Temperatures

The EPA estimates that a warming of three degrees

Fahrenheit would almost double the annual heat-related

deaths in Los Angeles, from 70 (in 1997) to 125.” Even a

small increase in global temperature can cause relatively

large increases in the number of extremely hot days,

increasing the likelihood of “killer” heat waves.” These

increases are associated with the exacerbation of preex-

isting cardiovascular and respiratory disorders, dispro-

portionately affecting the elderly, very young, poor, and

* O. Choi and A. Fisher, “The Impacts of Socioeconomic Develop-

ment and Climate Change on Severe Weather Catastrophe Losses: Mid-

Atlai ie Region (MAR) and the U.S.” Climate Change, 58:149 (2003).

* J. Patz et al., Climate Change and Health in California: A Pier

Research Roadmap, prepared for California Energy Commission (CEC-

500-2005-093) (May 2005) (available at http:/Avww.energy.ca.gov/pier/

final_project_reports/CEC-500-2005-093. html).

* TR. Karl and R.W. Knight, “The 1995 Chicago heat wave: How

likely is a recurrence?” Bulletin of the American Meteorological Society

78:1107-1119 (1997).

16

ill.“ High temperatures in urban areas also encourage

formation of ground-level ozone, a pollutant that causes

lung damage. Jd.

California recently experienced one of the deadliest

_ heat waves on record, resulting in well over one hundred

deaths and temperatures over 120 degrees in many towns

across the state.” Many of the deaths were due to the fact

that, unlike prior heat waves, the 2006 hest »vave saw

extremely high night-time temperatures as well as day-

time highs, so those affected were unable to recover at

night.”

2. Extreme Weather Events

The World Meteorological Organization has docu-

mented a link between global warming and increasing

extreme weather events, as have independent researchers,

who write that “the increasing ... number of category

4 and 5 hurricanes ... is directly linked to” increasing

temperatures.” Hurricane modeling has yielded similar

predictions. Simulated hurricanes modeled under warmer,

high-carbon-dioxide conditions are more intense, and a

greater number of them evolve into powerful Category 5

* A.J. McMichael, Human population health. INTERGOVERNMENTAL

“PANEL ON CLIMATE CHANGE THIRD ASSESSMENT REPORT: CLIMATE

CHANGE 2001 (Cambridge University Press, Cambridge, UK).

* J. Steinhauer, “In California, Heat is Blamed for 100 Deaths,”

NEw YORK TIMES, July 28, 2006.

* H. Becerra, “High Nighttime Temperatures Set Records Too,”

Los ANGELES TIMES, July 25, 2006.

” C. Hoyos ét al., “Deconvolution of the Factors Contributing to the

Increase in Global Hurricane Intensity,” Science (16 March 2006)

11235601 (DOI: 10.1126).

17

storms.” Many people have already died as a result of

increased hurricane activity in the Gulf region, and it is

expected that deadly hurricane activity will only increase

on average. Although the West Coast does not suffer

hurricanes, climate change-induced increases in precipita-

tion have caused flooding and landslides, particularly in

California.”

3. Infectious Diseases

Global warming increases the spread of infectious

diseases. One of the largest known outbreaks of Vibrio

parahaemolyticus gastroenteritis has been attributed to

generally rising ocean temperature, when infected oysters

were harvested in Prince William Sound, Alaska in 2005.

Global warming is likely to extend the range of vectors

(e.g., mosquitoes) conveying infectious diseases such as

malaria. A warmer environment boosts the reproduction

rate of mosquitoes and the number of times they eat,

prolongs their breeding season, and shortens the matura-

tion period for the microbes they disperse.“

Rising temperatures and drought conditions are

shifting the range of tropical and mosquito-borne diseases

* TR. Knutson, “Impact of CO2-Induced Warming on Simulated

Hurricane Intensity and Precipitation: Sensitivity to the Choice of

Climate Model and Convective Parameterization,” Journal of Climate

17(18):3477-3495 (Sep. 15, 2004).

* D.F. Boesch et al., The Potential Consequences of Climate

Variability and Change on Coastal Areas and Marine Resources: Report

of the Coastal Areas and Marine Resources Sector Team. Silver Spring,

USGCRP: 163 (2000).

“” PR. Epstein, “Climate Change and Human Health,” New

England Journal of Medicine 353(14): 1433-1436 (October 6, 2005).

18

northward and westward, including West Nile virus,

western equine encephalitis, and St. Louis encephalitis.“

Lyme disease and hantavirus are also spread by warmer

temperatures and weather disturbances. /d.

II. GLOBAL WARMING’S SPECIFIC ADVERSE

IMPACTS ON PETITIONERS GIVE THEM

STANDING TO SUE.

The generalized effects of global warming have spe-

cific adverse impacts on petitioners, conferring standing to

bring this action. Petitioners, a collection of states, mu-

nicipalities, and environmental organizations, have

suffered particular, concrete, actua!, imminent, and

redressable harms due to EPA’s failure to regulate carbon

dioxide emissions_that lead to global warming. These

harms fall within the zone of interests contemplated by

the Clean Air Act, and petitioners thus have standing to

sue.

A. The Harm Is Concrete.

Petitioners have suffered a concrete injury in fact, as

documented by their declarations submitted below. Many

of these injuries are “concrete and particularized,”™ such

as the deaths of hundreds due to extreme heat events, and

. others are “imminent™ threats, such as the future loss of

coastal property in the State of Massachusetts. Some are

“aesthetic, conservational or recreational” harms such as

“ PR. Epstein, “West Nile Virus and the Climate,” Journal of

Urban Health 78(2):367-71 (June 2001).

@ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

“ Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).

19

those held to be injuries in fact in Sierra Club v. Morton.

405 U.S. 727 (1972).

As shown above, the number of people who are suffer-

ing or will suffer some particular and concrete injury due

to global warming is substantial. But not everyone will be

similarly injured by global warming, as some may be

located in less vulnerable areas or possess the financial

means to insulate themselves against its effects. Control-

ling air pollutants that cause global warming is thus not

merely a matter of diffuse public interest that affects all or

most people in roughly the same way. Nor is it the type of

“widely shared grievance” for which this Court has sug-

gested that “the political process, rather than the judicial

process, may provide the more appropriate remedy.”

Because certain vulnerable segments of the population

suffer a disproportionate share of the harm inflicted by

global warming, and others may remain unscathed, the

political process is unlikely to adequately address these

injuries.

There is now overwhelming evidence that global

warming causes widespread harm to millions of Ameri-

cans, from rising sea levels, increasing heat waves and

associated droughts, stronger hurricanes and other

storms, greater flooding and erosion, more wildfires,

erratic precipitation and resulting crop losses. Because of

this mounting scientific evidence of economic harm, “the

risk of global warming is large enough to have real eco-

nomic consequences, certainly in the view of the insurance

“ Federal Election Commission v. Akins, 524 U.S. 11, 23 (1998). As

the Court went on to note, even a widely shared interest, “where

sufficiently concrete, may count as an ‘injury in fact.’” Jd. at 24.

20

industry.” As Professor Farber has noted, insurance

companies have already acted in response to global warm-

ing by raising their rates for coverage of damage caused by

catastrophic weather events, and “[i]t would be silly to say

that a rise in insurance rates or the unavailability of

insurance did not constitute injuries in fact.” Jd. at 1123.

This accords with this Court’s holding in Friends of the

Earth v. Laidlaw Environmental Services, Inc., 528 U.S.

167, 181 (2000) that a change in behavior due to “reason-

able concerns about the effects of those discharges, [which]

directly affected those affiants’ recreational, aesthetic, and

economic interests” sufficed to support a grant of standing

to petitioners in that casc. Likewise here, reasonable

concerns about the impacts of greenhouse gas emissions

have already directly affected petitioners’ economic inter-

ests and are likely to do so in the future.

As this Court held in United States v. Students Chal-

lenging Regulatory Agency Procedures (SCRAP), “to deny

standing to persons who are in fact injured simply because

many others are also injured, would mean that the most

injurious and widespread ... actions could be questioned

by nobody.” 412 U.S. 669, 688 (1973). Here, many people

are injured by the widespread impacts of global warming,

but petitioners’ injuries are nonetheless concrete, and

specific to petitioners’ unique circumstances.

B. The Harm Is Caused By EPA’s Failure to Act.

The evidence of harm due to global warming has only

grown stronger with the passage of time. The harms

“ Daniel A. Farber, Uncertainty as a Basis for Standing, 33

Hofstra L.R. 1123, 1129 (2005).

21

suffered by petitioners are clearly caused by greenhouse

gas emissions.“ The link is far stronger than the “attenu-

ated line of causation” found sufficient to establish stand-

ing in U.S. v. SCRAP, wherein an increased railroad

freight rate would lead to an increase in the use of non-

recyclable goods, eventually leading through a convoluted

chain of events to an increase in litter in Washington area

national parks. 412 U.S. at 688. Here, thousands of scien-

tific studies have demonstrated the strong link between

carbon dioxide emissions, global warming, and the heat

waves, coastal flooding, extreme weather and other ad-

verse impacts of which petitioners have complained.

The relevant test in cases like this one is a showing

that some “particularized environmental interest of

[petitioners] will suffer demonstrably increased risk, [and

that the challenged agency action] is substantially likely

to cause that demonstrable increase in risk to their par-

ticularized interest.”” Here, there is a scientifically based

causal link between motor vehicle emissions of carbon

dioxide and the climate change that has injured petition-

ers. Oreskes, supra, note 46. EPA’s failure to regulate

these emissions has delayed the reductions in greenhouse

gas emissions that are necessary to prevent imminent

harms to petitioners from occurring.

C. The Harm Is Redressable.

The injury in this case is redressable because judicial

relief will direct the EPA Administrator to regulate carbon

“ N. Oreskes, “The Scientific Consensus on Climate Change,”

Science 306:1686 (2004).

“ Florida Audubon Society v. Bentsen, 94 F.3d 658, 665 (D.C. Cir.

1996).

22

dioxide emissions from motor vehicles. Limitations on

carbon dioxide emissions from motor vehicles, in turn, will

reduce atmospheric carbon dioxide and resulting heating

of the atmosphere below what it would have been other-

wise. Lowered atmospheric carbon dioxide, and thus a

lessened increase in average global high temperatures,

will in turn lead to fewer of the injuries described above.

Motor vehicles are responsible for a significant percentage

of carbon dioxide emissions in the United States. In the

U.S. in 2004, 33 percent of total carbon-dioxide emissions

were due to transportation uses.“ Eighty-two percent of

those emissions were due to the consumption of motor

gasoline and diesel fuel (i.e., used by motor vehicles). Jd.

Thus, twenty-seven percent of the carbon dioxide emitted

within the United States each year would be subject to

regulation by the EPA Administrator - a significant

fraction.

Even if it is difficult to evaluate the marginal impact

of regulating motor vehicle carbon dioxide emissions on

global warming as a whole, this difficulty does not pre-

clude petitioners from suing to force the EPA Administra-

tor to perform his duty. Where “the relevant harms are

probabilistic and systemic, with widespread impact, courts

must be especially careful not to manipulate the causation

requirements of standing so as to prevent the anticipated

’ regulatory beneficiaries from gaining access to court.”

The ultimate test of redressability here is not whether

“ United States Energy Information Administration, Emissions of

Greenhouse Gases in the United States 2004, DOEAZIA-0573 (2004),

released December 2005, at 22.

” City of Los Angeles v. National Highway Traffic Safety Admin.,

912 F.2d 478, 495 n. 5 (D.C. Cir. 1990).

23

global warming will be stopped as a result, but whether —

the Court will be able to correct the EPA Administrator’s

failure to regulate an air pollutant that causes global

warming.

Reducing global warming through such regulation is

eminently practicable. Limiting motor vehicle emissions of

carbon dioxide would bea relatively painless way of

mitigating global warming and its harmful effects on

petitioners and amici. Motor vehicle emissions can be

reduced through a combination of vehicle-targeted, fuel- ©

targeted and _ transportation-management measures.”

Vehicle-targeted measures include emission standards as

well as inspection and maintenance programs. Id. at 38.

Fuel-targeted measures include alterations in gasoline

formulation and alternative fuel promotion. Jd. at 40.

Transportation and traffic management measures com-

plement the previous measures and can include congestion

charges, vehicle access restrictions, and promotion of

public transit programs. Jd. at 41-42. Any and all of these

regulatory measures could have a significant impact on

future global warming.

D. The Harm Is Within the Zone of Interests

Contemplated By the Statute.

Petitioners’ suit falls within the “zone of interests”

protected by the Clean Air Act.” As discussed below, the

” D.M. Elsom, “Air Quality Management - Highlighting Good

Practice,” Clean Air and Environmental Quality 38(1) (February 2004):

36-44.

* See Bennett v. Spear, 520 U.S. 154, 162-163 (1997); Association of

Data Processing Organizations v. Camp, 397 U.S. 150, 153-154 (1970).

ae a

Clean Air Act explicitly cites “climate” as one of the rele-

vant factors to be considered when regulating on behalf of

the public welfare. The more specific harms suffered by

petitioners as a result of climate change fall a fortiori

under the umbrella of public welfare.

Ill EPA HAS AUTHORITY UNDER THE CLEAN

AIR ACT TO REGULATE CARBON DIOXIDE.

This case involves the important, yet straightforward

task of interpreting the words of the Clean Air Act

(“CAA”). Under bedrock judicial principles, essential to our

democratic form of representative governance, the Courts

must give effect to the plain meaning of the statutes

adopted by Congress.” As this Court has stated, “[iJf a

court, employing traditional tools of statutory construc-

tion, ascertains that Congress had an intention on the

precise question at issue, that intention is the law and

must be given effect.” Id.

EPA contends, in defending its decision, that carbon

dioxide is not a pollutant under the terms of the CAA.

EPA’s interpretation, however, contravenes the “clear

congressional intent”-evidenced in the words of the CAA

and therefore warrants this Court’s rejection.” Section

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

467 U.S. 837, 843, fn.9 (1984).

* Id., citing FEC v. Democratic Senatorial Campaign Committee,

454 U.S. 27, 32 (1981); SEC v. Sloan, 436 U.S. 103, 117-118 (1978);

FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-746 (1973); Volkswagen-

werk v. FMC, 390 U.S. 261, 272 (1968); NLRB v. Brown, 380 U.S. 278,

291 (1965); FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965);

Social Security Board v. Nierotko, 327 U.S. 358, 369 (1946); Burnet v.

Chicago Portrait Co., 285 U.S. 1, 16 (1932); Webster v. Luther, 163 US.

331, 342 (1896).

25

302(g) of the Clean Air Act defines an “air pollutant”

extremely broadly as: mie,

[A]ny air pollution agent or combination of such

agents, including any physical, chemical, biologi-

cal, radioactive ... substance or matter which is

emitted into or otherwise enters the ambient air.

Such term includes any precursors to the forma-

tion of any air pollutant... . [42 U.S.C. § 7602(g).]

The CAA’s broad language demonstrates Congress’ inten-

tion to grant the EPA far-reaching authority to regulate

air pollution.”

in addition, and perhaps even more convincingly,

Congress explicitly listed carbon dioxide as a air pollutant

in section 103(g), which calls for a research program to

find ways to prevent or reduce “multiple air pollutants,

including sulfur oxides, nitrogen oxides, heavy metals,

PM-10 (particulate matter), carbon monoxide, and carbon

dioxide.” Because Congress specifically defined carbon

dioxide as a pollutant in the CAA, EPA's contrary determi-

nation that it is not a pollutant is demonstrably erroneous

and must be overturned. According to this Court, “{a]

regulation which does not [carry into effect the will of

Congress as expressed by the statute], but operates to

create a rule out of harmony with the statute, is a mere

nullity.” Guardians Ass’n v. Civil Service Com’n of City of

New York, 463 U.S. 582, 615 (1983), citing Manhattan

“ Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980) (“In choosing

such expansive terms . . . modified by the comprehensive ‘any,’ Congress

plainly contemplated that the [statutory provision] would be given wide

scope.”).

* 42 U.S.C. § 7403(g)1) (emphasis added).

26

General Equipment Co. v. Commissioner, 297 U.S. 129, 134

(1936).

IV. EPA'S REFUSAL TO REGULATE CARBON

DIOXIDE IS ARBITRARY AND CAPRICIOUS.

EPA's refusal to regulate carbon dioxide was based on

poiicy considerations which lie outside of the Administra-

tor’s discretionary purview under the Clean Air Act. As

such, EPA's decision ignored Congress’ clear directive, was

arbitrary and capricious, and therefore must be set aside.

In section 202(a)(1), Congress instructed, as follows:

The Administrator shall by regulation prescribe

(and from time to time revise) in accordance with

the provisions of this section, standards applica-

ble to the emission of any air pollutant from any

class or classes of new motor vehicles or new mo-

tor vehicle engines, which in his judgment cause,

or contribute to, air pollution which may rea-

sonably be anticipated to endanger public health

or welfare.”

By including the words “in his judgment,” Congress did

not invest the EPA Administrator with unlimited discre-

tion to consider any factors he chooses in making a deter-

mination under section 202(a)(1). To the contrary,

Congress sharply limited the Administrator’s discretion by

requiring him to consider, specifically and exclusively,

whether the pollutant “may reasonably be anticipated to

endanger public health or welfare.” Jd.

Contrary to Congress’ mandate, the EPA Administrator

never determined whether carbon dioxide “may reasonably

® 42 U.S.C.A. § 7521(aX1) (emphasis added).

27

be anticipated to endanger public health or welfare.” Had

he followed the CAA’s clear direction, he would have

weighed the evidence in favor of and against the possibil-

ity that excess carbon dioxide may endanger public health

and welfare. Instead, however, he based his refusal to

regulate on clearly extraneous considerations such as

“foreign policy issues” that completely sidestepped the one

question that is germane to the issue at hand: whether

increasing amounts of carbon dioxide “may reasonably be

anticipated to endanger public health or welfare.” The

Administrator ignored this fundamental question despite

overwhelming scientific evidence demonstrating global

warming’s disastrous impacts.

The Administrator’s failure to address this pivotal

issue is an abuse of discretion. As has been stated by the

D.C. Circuit Court, the Clean Air Act is “precautionary in

nature and does not require proof of actual harm before

regulation is appropriate.” Ethyl Corp. v. EPA, 541 F.2d 1,

17 (D.C. Cir. 1976). Moreover, “requiring EPA to wait until

it can conclusively demonstrate that a particular effect is

adverse to health before it acts is inconsistent with both

the Act’s precautionary and preventive orientation and the

nature of the Administrator’s statutory responsibilities.”

Here, where the causal connection between carbon dioxide

and climate change is virtually certain, the EPA has no

excuse not to regulate.

* See Whitman v. American Trucking Ass'n, Inc., 531 U.S. 457, 486

(2001). Construing a similar section of the CAA directing the EPA

Administrator to set standards for pollutants which in his “judgment”

are “requisite to protect the public health,” the Court held that “[t}he

EPA may not consider implementation costs” in setting such standards,

as such costs were extraneous to the criterion selected by Congress.

“ Lead Industries Ass’n v. EPA, 647 F.2d 1130, 1155 (D.C. Cir.

1980), emphasis added.

28

The EPA Administrator contends that FDA v. Brown

& Williamson, 529 U.S. 120 (2000), forecloses regulation

“In areas raising unusually significant economic and

political issues when Congress has specifically addressed

those areas in other statutes.”” His conclusion that it

therefore cannot regulate greenhouse gases is unpersua-

sive. In Brown & Williamson, this Court declined to

extend the FDA’s regulatory authority because in that

case, if the FDA had followed the regulation at issue to the

letter, it would have had no choice but to ban tobacco

products outright, a step that would have had drastic

consequences on the national economy. Brown & William-

son, 529 U.S. at 160-161. Here, a plain reading of the

Clean Air Act hardly mandates the banning of motor

vehicles, fossil fuel use, or any other analogous drastic

measure. Rather, it simply requires that the EPA set

emissions criteria for carbon dioxide, a measure that has

been applied to other extremely common air pollutants

such as sulfur dioxide and nitrous oxides without catas-

trophic effects on the national economy.

The EPA Administrator’s responsibilities under the

CAA include protecting the public’s health and welfare.

His decision, based on impermissible and extraneous

factors, not to regulate carbon dioxide abrogates that duty

and must be set aside.

\

* Control of Emissions from New Highway Vehicles and Engines,

68 Fed. Reg. at 52,925.

29

CONCLUSION

The judgment of the Court of Appeals should be

vacated and the case remanded for further consideration.

Respectfully submitted,

STEPHAN C. VOLKER*

JOSHUA A.H. HARRIS

MARNIE E. RIDDLE

LAW OFFICES OF STEPHAN C. VOLKER

436 14th Street, Suite 1300

Oakland, California 94612

(510) 496-0600

*Counsel of Record

Attorneys for Amici Curiae

North Coast Rivers Alliance, et al.

Lie er

5 er