# Amicus Curiae Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A35

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 497

## Text

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
SE REED SUUEED oc ncn cecssccsevcveccces i
Se PEED ovesiccévrescccsccvéeces ill

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A35. Public record. Not legal advice.