Amicus Curiae Brief — Massachusetts v. EPA

4h [Supreme Court Us.

43) OCT'2 4 2006

No. 05-1120 OSEIE OP THE CLERK

In the

Supreme Court of the United States

—

COMMONWEALTH OF MASSACHUSETTS, ET AL..,

Petitioners,

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

A

a

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

-.

vv

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE

ENVIRONMENTAL PROTECTION AGENCY

«A

4

M. REED HopPrer

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTIONS PRESENTED

Section 202(a)(1). of the Clean Air Act, 42 U.S.C.

§ 7521(a)(1), authorizes the Administrator of the

Environmental Protection Agency (EPA) to set emission

standards for any “air pollutant ” from new vehicles which in

the Administrator’s “judgment cause, or contribute to, air

pollution which may reasonably be anticipated to endanger

public health or welfare.”

1. Whether the EPA Administrator properly exercised his

discretion not to issue carbon dioxide emission standards for

new motor vehicles under section 202(a)(1).

2. Whether the EPA Administrator has authority to

regulate carbon dioxide and other air pollutants for climate

change purposes under section 202(a)(1).

ij

TABLE OF CONTENTS

Page

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IDENTITY AND INTEREST OF AMICUS CURIAE .... 1

INTRODUCTION AND SUMMARY OF THE

PE 4005 466.00 bans bab sesasseeaensees l

| FPP POPTT TTT CTT eer TOT ETT TCR POET eT 3

I. PETITIONERS LACK CONSTITUTIONAL

STANDING TO BRING THIS SUIT ............ 3

A. Petitioners Cannot Establish a

Causal Link Between EPA’s Failure

to Regulate CO2 from New Motor

Vehicles Under the Clean Air Act and

Rising Sea Levels in Massachusetts........... 4

B. Petitioners Cannot Establish a

Likelihood That the Requested

Relief Will Redress the Alleged Injury. ....... 8

Il. CONGRESS DID NOT INTEND TO

REGULATE CO2 FOR GLOBAL WARMING

PURPOSES UNDER THE CLEAN AIR ACT .... 10

| POPPE P ETT TeTTTTT ITE ETT 15

ili

TABLE OF AUTHORITIES

Page

Cases

Food and Drug Administration v. Brown and Williamson

Tobacco Corp., 529 U.S. 120 (2000) ........ 10-12, 15

Massachusetts v. Environmental Protection Agency,

415 F.3d 50 (D.C. Cir. 2005) ........--- 2s eee, 4,10

Rapanos v. United States, 126 S. Ct. 2208 (2006)........ l

Steel Company v. Citizens for a Better Environment,

So ey Pen ere ero ee 3

Whitmore v. Arkansas, 495 U.S. 149 (1990) ............ 3

Statutes

Te Ux F TREED 0b Os ws vesdecccecceceneceves i, 4

Federal Register

68 Fed. Reg. 52922 (Sep. 8, 2003)............. 5-9, 12-15

Rules !

OED vce c oak e800 6scee s0604s¥e~ewes ]

i ec es eee ]

Miscellaneous

Centre for Sun-Climate Research of the Danish National

Space Center, Influence of Cosmic Rays on the Earth's

Climate, http://spacecenter.dk/xpdf/influence

-of-cosmic-rays- on-the-earth.pdf

OE NE oid Oo ee ievsessentes 7

National Research Council, Climate Change Science:

An Analysis of Some Key Questions (2001) .......... 5

iv

TABLE OF AUTHORITIES—Continued

Page

News from spacecenter.dk, Getting Closer to the Cosmic

Connection to Climate (October 4, 2006) |

http://spacecenter.dk/cgi-bin/nyheder-m-m.cgi?

cgi function=formlid=1 15991779 1udsk=1

gs Ee errreere re 8

Royal Society, Experimental Evidence for the Role of Ions

in Particulate Nucleation Under Atmospheric

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

(di3 1 e04Stuhy54mkanrgjiiy)/app/homecontribution.

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

1,133;linkingpublicationresults, 1 :102023,1

(last visited Oct. 19,2006) ........cccceeeeeeceees 7

Senator James Inhofe, Chairman, Senate Environment

and Public Works Committee, Senate Floor Speech,

Delivered Monday September 25, 2006, Hot and Cold

Media Spin Cycle: A Challenge to Journalists Who

Cover Global Warming, http://epw.scnate.gov/

repwhitepapers/HOT%20AND%20COLD%20

MEDIA%20SPIN%20CY CLE. pdf

(last visited Oct. 19,2006) .........c0.eeceeeuees 8

|

‘IDENTITY AND INTEREST

OF AMICUS CURIAE

Under Supreme Court Rule 37,' Pacific Legal Foundation

(PLF) respectfully submits this brief amicus curiae in support

of Respondent United States Environmental Protection Agency.

Written consent was granted by counsel for all parties and

lodged with the clerk of this Court.

PLF was founded over 30 years ago and is widely

recognized as the largest and most experienced nonprofit legal

foundation of its kind. PLF litigates matters affecting the ©

public interest at all levels of state and federal courts and

represents the views of thousands of supporters nationwide.

PLF advocates limited government, individual rights, and free

enterprise. PLF has litigated numerous cases addressing a

balanced approach to environmental regulation including this

Court’s recent decision in Rapanos v. United States, 126 S. Ct.

2208 (2006).

PLF’s analysis of the standing issue and the intent of

Congress will provide a valuable and necessary viewpoint to

assist the Court in resolving this case.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

This case is not a referendum on global warming. This

Court need not pass judgment on whether the climate change

phenomenon is real or conjectural, natural or manmade, or

benign or cataclysmic. Instead, this Court must determine if the

Petitioners have standing to sue and then, if necessary, whether

Congress intended to regulate carbon dioxide, a naturally

' Pursuant to Supreme Court Rule 37.6, Amicus Curiae affirms that

no counsel for any party authored any part of this brief and no person

or entity made a monetary contribution for the preparation or

submission of this brief.

2

occurring substance necessary for life, as a toxic air

contaminant under the Clean Air Act.

The answer to both questions is no.

Although Petitioners assert they will suffer harm from the

effects of global warming—such as sea level increases causing

erosion on state beaches—if the Environmental Protection

Agency does not classify carbon dioxide as an air pollutant

under the Clean Air Act and limit new car emissions,

Petitioners are unable to establish a causal link between the

alleged harm and the agency’s inaction. Of equal importance,

carbon dioxide emissions from new cars are already regulated

by the Department of Transportation—not the Environmental

Protection Agency—to the maximum extent authorized by

Congress under the so-called CAFE standards which establish

mandatory fuel efficiency requirements for automakers.

Therefore, the Environmental Protection Agency has no power

to address the Petitioners’ concerns. Thus, without the ability

to show causation and redressability, Petitioners cannot satisfy

Article III standing requirements under the United States

Constitution.

Even if Petitioners had standing to bring this suit, Congress

never intended to address global warming through piecemeal

legislation like section 202(a)(1) of the Clean Air Act, which

even under the broadest reading would encompass only a

narrow component of global warming effects. Rather, Congress

has taken a more comprehensive approach to the matter—an

approach that recognizes the magnitude of global warming

concerns worldwide, the need for greater scientific certainty, the

potential social and economic upheaval a global warming

response will generate, the national and international political

implications of carbon dioxide regulation, the effect of a

unilateral American response on third world countries, and the

absolute necessity of a coordinated global warming strategy.

3

Concerns which could not be addressed by rote application of

the Clean Air Act.

The simple fact is that Congress has assiduously refused to

adopt a regulatory approach to control carbon dioxide emissions

in the United States. Surely, Congress could not have intended

to remedy global climate change—one of the most far-reaching

and controversial issues of our age—without an express

statutory statement to that effect.

ARGUMENT

I

PETITIONERS LACK CONSTITUTIONAL

STANDING TO BRING THIS SUIT

The right to maintain a suit in federal court is based on

establishing standing under Article II] of the United States

Constitution. As this Court has recognized, a lack of standing

deprives the court of jurisdiction to decide the case: “Standing

to sue is part of the common understanding of what it takes to

make a justiciable case.” Stee] Company v. Citizens for a Better

Environment, 523 U.S. 83, 102 (1998). The “constitutional

minimum of standing” is characterized by three requirements.

Id. at 102. First, Petitioners must ultimately prove, not merely

allege, “an injury in fact.” Jd. at 103. They must identify a

particularized harm that is “concrete” and “actual or imminent,

not ‘conjectural’ or ‘hypothetical.’” Jd. (citing Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990). Second, they must

establish causation whereby they show “a fairly traceable

connection between” the Petitioners’ alleged injury and the

conduct of the Defendant to which Petitioners complain. 533

U.S. at 103. And third, Petitioners must establish

redressability. That is, they must show “a likelihood that the

requested relief will redress the alleged injury.” /d.

In this case, the lower court was split on the standing issue.

Judge Randolph was willing to assume, for purposes of the

4

case, that Petitioners did have standing because he would rule

against the Petitioners on the merits anyway. See

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

50, 56 (D.C. Cir. 2005). However, Judge Sentelle found the

alleged injury was too general, amounting to nothing more than

a claim that global warming is “harmful to humanity at large”

and that “[p]Jetitioners are or represent segments of humanity.”

Id. at 60. On the other hand, Judge Tatel determined that at

least one of the Petitioners alleged more particularized injuries;

Based on rising sea levels, “Massachusetts claims an

injury—namely, loss of land within its sovereign

boundaries—that ‘affects [it] in a personal and individualized

way.” Id. at 65.

But even if one petitioner has satisfied the “injury in fact”

requirement of Article II] standing, Petitioners cannot satisfy

the other two requirements of causation and redressability. —

A. Petitioners Cannot Establish a Causal Link

Between EPA’s Failure to Regulate CO2 from

New Motor Vehicles Under the Clean Air Act

and Rising Sea Levels in Massachusetts

In this case, Petitioners challenge the Environmental

Protection Agency’s decision not to designate carbon dioxide

as an “air pollutant” under section 202 (a)(1) of the Clean Air

Act and adopt standards to regulate carbon dioxide for global

warming purposes. That section provides:

The Administrator [of the EPA] shall by regulation

prescribe . . . standards applicable to the emission of -

any air pollutant from ... new motor vehicle{s] . ..

which in his judgment cause, or contribute to, air

pollution which may reasonably be anticipated to

endanger public health or welfare.

42 U.S.C. § 7521(a\(1).

5

Petitioners rely on modeling studies and affidavits

contending with absolute certitude that human-caused

greenhouse gases, like carbon dioxide, “are accelerating global

climate change and that emissions of these compounds from

motor vehicles contribute to the problem.” 68 Fed. Reg. 52922,

52930 (Sept. 8, 2003). But the Environmental Protection

Agency determined that this information was available to the

National Research Council (an arm of the prestigious National

Academy of Sciences) when it came to a different conclusion.

Id. In its searching 2001 report, Climate Change Science: An

Analysis of Some Key Questions, the Council concluded that

the current state of knowledge was uncertain and that global

warming models are inherently unreliable:

[BJecause of the large and still uncertain level of

natural variability inherent in the climate record and

the . . . time histories of the various forcing agents

(and particular!y aerosols), a causal linkage between

the buildup of zreenhouse gases in the atmosphere

and the observed climate changes during the 20th

century cannot be unequivocally established.

68 Fed. Reg. 52930 (citing the NRC report at 17).

The National Research Council cautioned that “current

estimate{s] of the magnitude of future warming should be

regarded as tentative and subject to future adjustments” and that

“{rjeducing the wide range of uncertainty inherent in current

model predictions of global climate change will require major

advances in understanding and modeling.” Jd. (citing the

Council report at 1.)

As the National Research Council explained, the difficulty

in predicting climate change derives from a number of complex

economic and physical factors, including the predictability of

human-caused greenhouse gas emissions, what happens to

emissions in the atmosphere, the radiative properties of the

atmosphere, changes in cloud cover and ocean circulation,

6

changes in day and evening temperatures, shifts in rain and

storms, and impacts on human health. See id. (citing the

Council report at 20). If climate change models are to be

reliable, uncertainties must be reduced relative to:

. The future global use of fossil fuels and future

global emissions of methane,

. The fraction of fossil fuel carbon that will

remain in the atmosphere and contribute to

radiative forcing versus exchange with the

oceans or with the land biosphere,

° The impacts (either positive or negative) of

climate change on regional and local systems,

° The nature and causes of the natural variability

of climate and its interactions with human-

induced changes, and

, The direct and indirect effects of the changing

- distribution of aerosols.

68 Fed. Reg. at 52930.

Thus, the National Research Council concluded that

“substantial scientific uncertainties limit our ability to assess

each of these factors and to separate out those changes resulting

from natural variability from those that are directly the result of

increases in anthropogenic [human-caused] GHGs [greenhouse

gases].” Id.

In other words, the objective and independent conclusions

of the National Research Council make clear that Petitioners

cannot establish Article II] causation. The high level of

scientific uncertainty relative to global warming precludes

Petitioners from showing “a fairly traceable connection

between” the Petitioners’ alleged injury (sea level increases on

the Massachusetts coast) and the conduct of the Defendant (the

agency’s decision not to regulate carbon dioxide from new

7

vehicles under the Clean Air Act) to which Petitioners

complain.

Indeed, a recent study supports these conclusions.

On October 3, 2006, the Royal Society, the British

equivalent of our National Academy of Sciences, published a

study online entitled Experimental Evidence for the Role of Ions

in Particulate Nucleation Under Atmospheric Conditions.

http://www.journals.royalsoc.ac.uk/(di3 1e04S5tuhyS4mkqnrgj

iiy)/app/home/contribution.asp?referrer=parent&backto=issue,

12,46;journal,1,133;linkingpublicationresults, | :102023,1 (last

visited Oct. 19, 2006). The study was produced by the Centre

for Sun-Climate Research of the Danish National Space Center.

According to the backgrounder provided by the Space Center,

http://spacecenter.dk/xpdf/influence-of-cosmic-rays-on-the-

earth.pdf (last visited Oct. 19, 2006), the study proves a decade-

old theory that cosmic radiation greatly affects low-level cloud

cover on the Earth. This is significant because “low-level

clouds cover more than a quarter of the Earth and exert a strong

cooling effect at the surface.” Jd. According to the study, so

strong is this effect that

[t]he 2% changes in low cloud cover in just 5 years .

.. Should vary the heating at the Earth’s surface by an

average of about 1.2 watt per square metre. That

figure can be compared with about 1.4 watt per square

metre estimated by the [United Nations]

Intergovernmental Panel on Climate Change for the

greenhouse effect of all the increase in carbon

dioxide in the air since the Industrial Revolution.

In 1900 the cosmic rays were generally more intense

than now and most of the warming during the 20th

Century can be explained by a reduction in low cloud

cover.

Id. (emphasis added)

8

This startling conclusion suggests that human-caused

carbon dioxide emissions may have an insignificant effect on

global warming,’ The link between cosmic radiation and low-

level cloud formation constitutes “a missing link in climate

theory,” News from spacecenter.dk, Getting Closer to the

Cosmic Connection to Climate (Oct. 4, 2006) http://

spacecenter.dk/cgi-binnyheder-m-m.cgi?cgifunction=form|id=

1159917791udsk=1 (last visited Oct. 19, 2006), and

demonstrates how little is known about the factors influencing

global climate change. Even if this study is not determinative

on the subject, it puts in doubt the assumptions about the causes

of global warming on which the current climate models are

based and on which Petitioners rely to establish causation. On

the current state of the scientific record, it is impossible for

Petitioners to prove a causal connection between sea level rises

off the Massachusetts coast and the Environmental Protection

Agency’s decision not to regulate carbon dioxide emissions

from new vehicles under the Clean Air Act.

B. Petitioners Cannot Establish a

Likelihood That the Requested Relief

Will Redress the Alleged Injury

Petitioners ask this Court to direct the Environmental

Protection Agency to determine if carbon dioxide is an “air

pollutant” under the Clean Air Act. They assume that if carbon

dioxide is determined to be an “air pollutant” that it will result

in increased federal regulation of carbon dioxide which will

reduce global temperatures and, presumably, retard or eliminate

2? For a comprehensive analysis of the debate surrounding global

warming assumptions see http://epw.senate.gov/repwhitepapers/

HOT%20AND%20COLD%20MEDIA%20SPIN%20CYCLE pdf

(last visited Oct. 19, 2006): Hot and Cold Media Spin Cycle: A

Challenge to Journalists Who Cover Global Warming, Senator James

Inhofe, Chairman, Senate Environment and Public Works

Committee, Senate Floor Speech, Delivered Monday September 25,

2006.

9

sea level rises along the coast of Massachusetts. But Petitioners

are operating on a false assumption. Even if the Environmental

Protection Agency were to designate carbon dioxide as an “air

pollutant,” the agency cannot further regulate the substance

from new vehicles under the Clean Air Act.

According to the Environmental Protection Agency, there

is no known technology to reduce carbon dioxide from vehicle

emissions except by increasing fuel economy. See 68 Fed. Reg.

at 52929 (“No technology currently exists or is under

development that can capture and destroy or reduce emissions

of CO2, unlike other emissions from motor vehicle tailpipes.

At present, the only practical way to reduce tailpipe emissions

of CO2 is to improve fuel economy.”). And fuel economy is

regulated by the Department of Transportation under the Energy

Policy and Conservation Act, not by the Environmental

Protection Agency under the Clean Air Act.

In the Energy Policy and Conservation Act Congress itself

has “set mandatory standards governing the fuel economy of

cars and light duty trucks.” Jd. At the time the Environmental

Protection Agency decided not to designate carbon dioxide as

an “air pollutant,” the level of fuel economy statutorily

authorized by Congress was the 27.5 miles per gallon corporate

average fuel economy (CAFE) standard. Jd. That standard

applies to model years 1984 and beyond. Jd. The Department

of Transportation—not the Environmental Protection

Agency—is allowed to modify the standard for any given year,

but Congress retains a veto power over any changes, ostensibly

to ameliorate economic impacts on automakers and consumers.

Id. Under the Act, the Deapartment of Transportation may only

set standards that automakers “meet on a fleetwide basis.” Jd.

“Automakers thus have flexibility to design different vehicle

models having different fuel economy so long as the average of

the vehicles sold by the automaker in a given model year and

class meets the CAFE standard for that year.” Id.

10

In short, the Energy Policy and Conservation Act provides

“the only statutory vehicle for regulating the fuel economy of

cars and light trucks.” Jd. The Environmental Protection

Agency cannot impose controls on carbon dioxide emissions

under the Clean Air Act that require higher fuel economy

standards than those mandated by Congress under the Energy

Policy and Conservation Act. And, to set lower standards

would serve no purpose. Thus, this Court cannot provide any

redress to Petitioners in this case. Therefore, the Court has no

jurisdiction under Article III and the case must be dismissed.

li

CONGRESS DID NOT INTEND TO REGULATE

CO2 FOR GLOBAL WARMING PURPOSES

UNDER THE CLEAN AIR ACT

The strongest evidence that Congress did not intend to

address global warming through section 202(a)(1) of the Clean

Air Act is-that the Act includes no such expression of intent.

The Environmental Protection Agency has acknowledged the

undeniable importance of this issue: “We agree with the

President that ‘we must address the issue of global climate

change.” 68 Fed. Reg. 52929. The worldwide social, political,

and economic implications of our response to global warming

are immense. The Petitioners themselves have filed two

volumes of declarations some of which “predict catastrophic

consequences from global warming.” Massachusetts, 415 F.3d

at 54. It is highly unlikely, therefore, that Congress would have

intended to leave an issue of such magnitude to a general

provision of the Clean Air Act that was never designed to

address global concerns and without an express statement that

the provision should be so broadly applied.

This Court came to the same conclusion in a similar case:

Food and Drug Administration v. Brown and Williamson

Tobacco Corp., 529 U.S. 120 (2000). In that case, the Food and

Drug Administration (FDA) sought to apply the Food, Drug,

11

and Cosmetic Act to tobacco and tobacco products. Jd. at 120.

Although the Act did not expressly allow the regulation of

tobacco, the Act did authorized the FDA to regulate “drugs”

and “devices.” Jd. at 120. The FDA determined that nicotine

was a “drug” and cigarettes and smokeless tobacco were

“devices” that deliver nicotine to the body and thus were

subject to federal regulation under the Act. Jd. Moreover, the

FDA felt a need to provide strict controls on tobacco use:

“According to the FDA, ‘[mJore than 400,000 people die each

year from tobacco-related illnesses, such as cancer, respiratory

illnesses, and heart disease.”” Jd. at 134-35. “The agency also

determined that the only way to reduce the amount of tobacco-

related illness and mortality was to reduce the level of

addiction, a goal that could be accomplished only by preventing

children and adolescents from starting to use tobacco.” /d. at

127-128. The FDA’s regulations were therefore designed to

protect minors.

Nevertheless, this Court reversed the FDA’s determination.

Even though the statutory language had apparently been

satisfied, this Court found that the Act did not cover tobacco

use. This Court based its decision on the fact that Congress

directly regulated tobacco under other statutes and that the

agency was asserting jurisdiction for the first time to regulate an

industry constituting a significant portion of the American

economy. /d. at 159-160. This Court concluded: “[W]e are

confident that Congress could not have intended to delegate a

decision of such economic and political significance to an

agency in so cryptic a fashion.” Jd. at 160.

While acknowledging that tobacco use among children

“poses perhaps the single most significant threat to public

health in the United States,” this Court counseled:

[Njo matter how “important, conspicuous, and

controversial” the issue, and regardless of how likely

the public is to hold the Executive Branch politically

accountable, . . . an administrative agency’s power to

12

regulate in the public interest must always be

grounded in a valid grant of authority from Congress.

And “[i]n our anxiety to effectuate the congressional

purpose of protecting the public, we must take care

not to extend the scope of the statute beyond the point

where Congress indicated it would stop.”

Id. at 161 (citation omitted.).

So it is here. Even if carbon dioxide satisfies the statutory

definition of an “air pollutant” under the Clean Air Act, carbon

dioxide emissions are already being addressed to the maximum

extent practicable under the Department of Transportation’s

CAFE standards for fuel efficiency, as discussed in detail

above. And of course, it is precisely because © petitioner-like

claims that global warming “poses perhaps the single most

significant threat” to public health and welfare that a more

comprehensive approach—than the regulation of new vehicle

emissions under the Clean Air Act—is warranted. Indeed, the

Environmental Protection Agency has documented just such an

approach:

[T]he President has laid out a comprehensive

approach to climate change that calls for near-term

voluntary actions and incentives along with programs

aimed at reducing scientific uncertainties and

encouraging technological development so that the

government may effectively and efficiently address

the climate change issue over the long term.

68 Fed. Reg. at 52930.

In 2001, the President announced the Climate Change

Research Initiative “to study areas of uncertainty and identify

priority areas where investments can make a difference.” Jd.

The strategic plan for this initiative has been issued and is being

pursued. Jd. at 52930-31. Recently, the Department of

Transportation promulgated new rules increasing the CAFE

standards for light trucks, including sport utility vehicles. Jd. at

13

52931. These new standards will avoid 31 million metric tons

of carbon dioxide emissions over the life of the affected

vehicles. Jd. The President has established public-private -

partnerships with automakers to promote zero-emission

hydrogen powered vehicles and sought billions of dollars in tax

credits for consumers to buy fuel cell and hybrid vehicles. Jd.

The Department of Energy is working with 14 industry groups

to find alternative means of using and conserving fuel. Jd. In

2002, the President called for voluntary reductions in

greenhouse gas emissions, to which industry groups have

responded, with the goal of reducing such emissions equivalent

“to taking 70 million (or one out of three) cars off the road”

over a ten-year period. Jd. Also, in 2002 the Environmental

Protection Agency launched jts Climate Leaders program.

Under this program, “more than 40 companies from almost all

of the most energy-intensive industry sectors” have agreed to

work with the agency in setting aggressive emission reduction

goals and reporting their progress. Jd. As a testament to the

effectiveness of volunteer programs, the agency’s Energy Star

program is an example. Energy Star is a voluntary labeling

_ program informing consumers about energy efficient products.

Id. Under this program, more than 750 million Energy Star

products crossing more than 30 product categories have been

purchased from 1993 to 2003. Id. Reductions of greenhouse

gas emissions from these products were the equivalent of

removing 10 million cars from the street in one year. Jd.

In addition, the Environmental Protection Agency has

partnerships with natural gas companies, landfills, and coal

mining interests to reduce and recapture methane emissions. /d.

Other agency partnerships are resulting in drastic reductions of

the most potent greenhouse gases, including sulfur,

hexafluoride, per fluorocarbons, and hydrofluorocarbons. Id.

Beyond this, the Administration is setting up a national

greenhouse gas registry to aid in future voluntary or mandatory

emissions reductions and to facilitate emission credits and

trades. Jd. The Environmental Protection Agency and other

14

government agencies are also working with research groups to

develop cleaner fuels and more efficient cars and other modes

of transportation. Jd. at 52932-33.

This overall approach lends credence to the Environmental

Protection Agency’s claim that it would be counterproductive

to address carbon dioxide emissions piecemeal through the

Clean Air Act. According to the agency, unilateral regulation

of vehicle emissions, as Petitioners seek, would weaken, not

strengthen, “U.S. efforts to persuade key developing countries

to reduce the GHG [greenhouse gas] intensities of their

economies.” Jd. at 52931. Because of the large populations

and growing economies of some developing nations, these

countries often allow their emissions to increase precisely

because the United States is decreasing its emissions. Id. This

was the case when the United States sought to control

substances that deplete stratospheric ozone. “Over time, U.S.

emission reductions were more than offset by emission

increases in other countries.” Jd. at n.5.

It was concern for this phenomenon that has resulted in

consistent congressional rejection of strict regulatory

approaches to carbon dioxide emissions in the United States.

While the Kyoto Protocol was being negotiated, the Senate

voted 95 to 0 that the United States would not sign on to any

protocol that would limit United States greenhouse gas

emissions—particularly carbon dioxide—unless the protocol set

specific’ and scheduled emission limitations for developing

countries. Jd. at 52927. This action would have been strange

if Congress had expected drastic carbon dioxide reductions

from the regulation of “air pollutants” under the Clean Air Act,

which the Petitioners hope to achieve by this suit.

Since enactment of the Clean Air Act amendments in 1990,

“numerous bills to control GHG [greenhouse gas] emissions

from mobile and stationary sources have failed to win passage.”

Id. at 52928. However, one day after the adoption of the 1990

amendments, Congress passed the Global Change Research Act

15

that established the Committee on Earth and Environmental

Sciences to coordinate a ten-year research program on global

warming. Jd. at 52927. In that same year, Congress

promulgated Title XXIV of the Food and Agricultural Act to

investigate climate change implications for agriculture. Jd.

Taken together, these actions suggest a need for a broad

and coordinated approach to global warming issues and exhibit

congressional intent to address these issues through means other

than the Clean Air Act. Thus, if this Court reaches the merits

of the case, this Court should conclude that Congress did not

intend to regulate carbon dioxide as an “air pollutant” under

section 202(a)(1) of the Act. “Congress could not have

intended to delegate a decision of such economic and political

significance to an agency in so cryptic a fashion.” Food and

Drug Administration, 529 U.S. at 160.

—~r

CONCLUSION

For the foregoing reasons, this Court should either dismiss

the case for lack of standing, or uphold the EPA

Administrator’s discretionary determination not to regulate

carbon dioxide as an “air pollutant” under the Clean Air Acct.

DATED: October, 2006.

Respectfully submitted,

M. REED HOPPER

~ Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation