Amicus Curiae Brief — Massachusetts v. EPA

Ali A

“Supreme Coud, US. }

%6 FILED

OCT 24 2006

_OFFICE OF THE CLERK |

No. 05-1120

In the

Supreme Court of the United States

THE COMMONWEALTH OF MASSACHUSETTS, ef al.,

Petitioners,

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Writ of Certiorari to

the United States Court of A peals

for theDistrict of Columbia Circuit

BRIEF OF AMICUS CURIAE

WILLIAM H. TAFT, IV

IN SUPPORT OF RESPONDENTS

ARNOLD W. REITZE, JR.

Counsel of Record

THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOO!

2000 H Street, N.W.

Washington, D.C. 20052

(202) 994-6908

Counsel for Amicus Curiae

October 24, 2006

SS

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

i

TABLE OF CONTENTS

Page

TABLE OF AU TOI TEES .occccccesccocccsccersocsscscvcsovecscscensoees ill

INTERESTS OF AMICUS CURIAE .....00.....eecceccesseeseeeeeees 1

SUMMARY OF ARGUMENT .............cccsssssscssseesssseessseseees 2

Fn 3

I. The United States Is Working Within An

International Framework To Develop A

Comprehensive, Multilateral Approach To

oa Ce CIR ccrcenscscncerssetecncnssentnnninectnmmnanenes 3

A. The Issue Of Global Climate Change Raises

Important Foreign Policy Concerns. ...........0s-000++: 4

B. The United States’ Foreign Policy Favors

Comprehensive, Multilateral Strategies For

- Addressing Global Climate Change. ............:::00++ 6

1. The President and Congress Have

Rejected Mandatory Emissions

Reductions That Would Unduly Harm

The United States’ Economy. ...............cssseeeseees 7

2. A Multilateral Approach To Climate

Change Is Consistent With The United

States’ Approach To Other Issues

Affecting The Global Environment............... 10

C. Congress Has Repeatedly Declined To

Impose Mandatory’ Restrictions On

Greenhouse Gas Emissions In The Absence

Of An Acceptable International Regime. ........... 15

li

II. EPA’s Administrator Appropriately Considered

Foreign Policy Issues When Denying The

Petition For Rulemaking..............ssssssscscssssssssessseeees 19

A. Congress Has Never Granted EPA Authority

To Regulate Greenhouse Gases For Purposes

Of Affecting The Global Climate.................s00000 19

B. Because Carbon Dioxide Emissions Disperse

Throughout The Earth’s Atmosphere, They

Are Materially Different From Most

Pollutants Regulated Under The Clean Air .

PRI, caccncsmsemnecociscnsineineneessenganentnnnintietimamatennniitieten 23

FEO IIIS: corriscnesncnesctnrensantabesattsinanipasnceimienetietiaaeiets 29

iii

TABLE OF AUTHORITIES

: Page

Cases

International Brotherhood of Teamsters v. Pena, -

SF FG BEF Cts BE sctcetnticercccniccsncensccniesesien 20

Youngstown Sheet & Tube Co. v. a cake

ee I icitieibscteiitinittinniiaiinbaniiianiieniinesienaniinnsinn 22

Treaties, Statutes, and Regulations

Agreement on Air Quality, Can.-U:S.,

Ee a csitvcicininercsceienvanciananion pinnenasaaivaend 11

Helsinki Declaration on the Protection of the Ozone

Layer, May 2, 1989, 28 I.L.M. 1335 (1989)........0:0:00+: 14

London Amendments to the Montreal Protocol on

Substances that Deplete the Ozone Layer,

es Ce ctatesnnitehensininsinteniddineniianatdinnemagia 14

S. Treaty Doc. No. 100-10 (1987), 1522 U.N.T.S. 3, 26

I.L.M. 1550 (1987) (entered into force Jan. 1, 1989) .13

United Nations Framework Convention on Climate

Change, 31 1.L.M. 849 (May 9, 1992) ........:ssssssesesseeeees 8

Vienna Convention for the Protection of the Ozone

Layer, Mar. 22, 1985, 26 I.L.M. 1529 (entered into

ETE, Ei, SII erccnsescinnencisinteicansenngiintememeensmessien 13

is BE PN icinitisttncniicasonsscecinntictininjesissiniematinnndsdnieseaehies 21

Se ae Os Fe CD cccectstnrtarcictnterensisncmniincnenesonntin 12

42 U.S.C. § 7453 (pre-1990) ..ccccccecsessssssesssssssesssstevsssesenseee 12

iv

42 USC. § 7456 (prre-1990) .....cocscccocrsesvcesssserevsvencesosssossese 12

42 USL. § FESS (0 TDI) on nccococccscssccsssssssesesvessssssctentesen 12

EU BE... G FIG GG cccsercicenscsnessseinciviaisseminiaiaiiaian 12

GB USA. 5 PEBT p00 BIO) ccsccccnnssccsntesnssccsnsscitomicaiangiina 12

CE A. BFA cntesssccsestnsseseenaiseevinnisciametiannicaaiaial 22

GA, GFE cccncccsssrcsnssensacinnsnscsiecseminseninsiadaiiiiiianliit, 22

EBA, BPG, CONE, ccsccviessinsocenstnisiniettiaiisiniieaniiadanamial 11

CUBA, BFGF cecnnsesssmepesiscensniinniciissiliiianibiadilaaa 14, 26

DBA... GID sveccnencscsssesnsestnesemnsieeneenaniesntionsininuinitiiga 20

Safe, Accountable, Flexible and _ Efficient

Transportation Act: A Legacy for Users, Pub. L.

No. 109-59, 119 Stat. 1144 (Aug. 10, 2005) ............... 18

Pub. L. No. 100-204, |

, SRST Cisse NTI 7

Pub. L. No. 101-549,

O06 Bnd, MOP ccicensitrnienssitdinnaiaitaniicunainsmbal 14

Pub. L. No. 105-276 (1998) ..sssscssssssssssscssseseeseee ReMiaber =. 9

Pub. L. No. 109-58, 119 Stat. 594 (2005) ....csccssssssseseeseeee 18

Pub. L. No. 90-148, 81 Stat. 485 (1967) ..ecssssscssssscsssssssseee 25

Pub. L. No. 91-604, 84 Stat. 1679 (1970) .....ssscvsssssssseesesen 25

43 Fed. Reg. 11,301, Certain Fluorocarbons

(Chlorofluorocarbons ) in Food, Food Additives,

Drug, Animal Food, Animal Drug, Cosmetic,

and Medical Device Products as Propellants in

Self-Pressurized Containers (Mar. 17, 1978)............ 13

Vv

52 Fed. Reg. 24,663, Revisions to the National

Ambient Air Quality Standards For Particulate

Matter (July 1, 1987) .............c.c:sccssesesesesessesssssenerenseesees 26

52 Fed. Reg. 47,489, Protection of Stratospheric

Clann Cac, BG, BGI) ccc tescncscsesscsasccccsncscscsncecencocacensnces 14

53 Fed. Reg. 30,566, Protection of Stratospheric

Caran Gane, TR, BIG p ececcsceccccsccaseccccecssccsczcsssessnseciccnese 14

62 Fed. Reg. 38,711, National Ambient Air Quality

Standards For Particulate Matter (July 18, 1997) ....26

Regulation of Fuel and Fuel Additives: Control of

Lead Additives in Gasoline, 38 Fed. Reg. 33,734,

| Ere 24

Regulation of Fuels and Fuel Additives,

38 Fed. Reg. 1254, (Jam. 10, 1973) ...........cseseseeseseesesees 24

Other Authorities

Barratt-Brown, Elizabeth P.,

Building a Monitoring and Compliance Regime

Under the Montreal Protocol, 16 YALE J. INT'L L.

Fe PED ccerceneseztssnensnseesennssesnenesssseensscsssnessnesosnsnecsessncetn 13

Congressional Budget Office, Uncertainty in

Analyzing Climate Changes:Policy Implications

Cook, Steve,

Bush Promotes Administration's Air Policies, Urges

Congress to Approve Clean Skies Bill, 34 Env’t 7

(BNA) 2062 (Sept. 19, 2003)...................cecerercssssessocenee 17

vi

Department of Energy, Energy Information

Administration, What Does the Kyoto Protocol

Mean to U.S. Energy Markets and the ULS.

IT GPO, Fe ccecserccrccrmeeereniesenemenpenel 4

Garner, Lynn,

Senate Committee Defeats Efforts to Close SU”

“Loophole,” Boosts Clean Coal Funding, 36 Env’t

Rep. (BNA) 1043 (May 20, 2005)..............::s:sessssesesees 18

Karl, Thomas R. & Trenberth, Kevin E.,

Modern Global Climate Change, 302 SCIENCE 1719

GIR Ge, SI crnreennncemennscinaimneenennennmemmnneneael 4

Legislation in the 108th Congress Related to Global

Climate Change, available at

http://www.pewclimate.org/what_s.being_

done/in_the_congress//1O8th.cfM.............0:seseseeeeeeeees 16

Miller, Geoffrey P., ;

The Unitary Executive In a 1 Unified Theory of

Constitutional Law: The Problem of Interpretation,

ite") Ff 1. 20

Najor, Pamela,

Bills Reintroduced in Senate, House to Cut ULS.

Emissions of Greenhouse Gases by 2010, 36 Env’t

Rep. (BNA) 321 (Feb. 18, 2005) ...........--..cceseseseeeseenees 17

Najor, Pamela,

Incentives to Push Technology Added to Bill by

McCain, Lieberman on Greenhouse Gases, 36 Env’t

Rep. (BNA) 1118 (Jun 3, 2005)............-secsesesseseeeeneneees 18

vii

Najor, Pamela,

United States Joins Five Other Nations In Effort To

Cut Greenhouse Gas Emissions, 36 Env’t Rep.

(BNA) 1549 (July 29, 2005).......-.--cscccesessseseseeseseseneseeees 10

Nordhaus, Robert R. & Danish, Kyle W.,

Pew Center on Global Climate Change,

Designing a Mandatory Greenhouse Gas Reduction

Program for the U.S. (2003) ......-.-sssssseresseenseeserererereneeees 5

Reitze, Jr., Arnold W.,

The Legislative History of U.S. Air Pollution

Control, 36 HOUSTON L. REV. 679 (1999)................00- 25

Remarks by President George W. Bush on Climate

Change and Clean Air Act at National Oceanic

and Atmospheric Administration, Feb. 14, 2002,

Daily Env’t Rep. (BNA), Feb. 15, 2002, at E-1.......... 17

Remarks of the President George W. Bush on Global

Climate Change,

2001 WL 637709 (June 11, 2001) .......cccsccccssceseeeesneeee 4,8

Remarks of the President William J. Clinton at the

National Geographic Society, 2 Pub. Papers 1408

SE, Se, HPP rccrereeremunprsastemncemnsaneemesnenmmsscsmenspnnemensins 9

US. Won’t Follow Climate Treaty Provisions,

Whitman Says, N.Y. Times (Mar. 28, 2001).............. 19

Senate GOP Signals Death of Clear Skies After

Committee Deadlock, XXII ENvtt POL’y ALERT

SE Tate TEE ntsenicnsestiniasertonesiessibenneniaamnteiiadiiniundaietasnastpii 17

Vili

Stratospheric Sink for Cholorofluoromethanes: Chlorine

Atom Catalyzed Destruction of Ozone,

BED Dita GD II cecscccsncscnsssevenscermemeeesserememnnavens 12

Text of a Letter from President George W. Bush,

Mar. 13, 2001, available at

http://www.whitehouse.gov

/news/releases/2001/03/20010314. html seesessansaseaguenet 21

U.N. Environment Program,

The Impact of Ozone-Layer Depletion (1992) ......... 12

U.N. Framework Convention on Climate Change:

Hearing Before S. Comm. on Foreign Relations,

100th Cong. 2d Sess. 93 (1992) .......-..cccsseseseseseseeeseeseses 8

US. Dept. of Energy, Energy Information

Administration, International Energy Outlook

INTERESTS OF AMICUS CURIAE!

Amicus William H. Taft, IV, served as legal adviser

to the Department of State from 2001 to 2005. From

1989 to 1992, Mr. Taft was the United States permanent

representative to the North Atlantic Treaty

Organization. From 1984 to 1989, Mr. Taft was the

Deputy Secretary of Defense. From 1981 to 1984, Mr.

Taft was the General Counsel of the Department of

Defense. From 1976 to 1977, Mr. Taft was General

Counsel of the Department of Health, Education and

Welfare. Mr. Taft has extensive experience and

expertise in foreign policy and international law as well

as United States administrative law. Mr. Taft has a

strong interest in the court’s resolution of the legal

issues in this case to the extent they bear on the conduct

of foreign policy and its consideration in the

interpretation of domestic regulatory statutes and the

execution of domestic regulatory programs.

Mr. Taft is currently Of Counsel at Fried, Frank,

Harris, Shriver & Jackson LLP, an international law

firm. He serves on the Executive Council of the

American Society of International Law and the Board of

1 All parties have consented to the filing of this brief. Pursuant to

the Rule 37.6, counsel for Amicus Curiae states that this brief was

not written in whole or in part by counsel for any party. A

monetary contribution to the preparation and submission of this

brief was made by non-party, the Automotive Trade Policy

Council.

2

the American Bar Association’s Center for Rule of Law

Initiatives.

The purpose of this brief is to advise the Court that

the Administrator of the Environmental Protection

Agency may properly consider the foreign policy

interests of the United States in exercising her

responsibilities under the Clean Air Act.

SUMMARY OF ARGUMENT

Petitioners conclude that carbon dioxide is an “air

pollutant” that, under section 2U2 of the Clean Air Act,

is subject to regulation by the Environmental Protection

Agency (EPA). Petitioners overlook the President's and

Congress’s repeated determinations that, as a matter of

U.S. foreign policy, the issue of global climate change

must be addressed through a comprehensive,

multilateral strategy, not through unilateral, domestic

regulation that could cause significant harm to the

Nation’s economy.

The petitioners and their amici have worked for

years to enact legislation and to shape foreign policy to

control carbon dioxide emissions, but they have

repeatedly failed to achieve their goals. Because

neither Congress nor the Administration has been.

willing to grant EPA authority to regulate greenhouse

gas emissions, the petitioners now seek to use this

Court to achieve their preferred policy objectives, even

though their views have been consistently rejected

through the democratic process.

3

In recognizing that, under the Clean Air Act, EPA

enjoys no authority to regulate greenhouse gas

emissions, the EPA Administrator appropriately

considered United States’ foreign poiicy and declined

petitioners’ request that she impose burdensome

domestic regulations on carbon dioxide emissions from

new motor vehicles. The decision was appropriate and

should be upheld.

ARGUMENT

I. The United States Is Working Within An

International Framework To Develop A

Comprehensive, Multilateral Approach To Global

Climate Change.

The President and Congress have insisted for more

than a decade that the phenomenon of global climate

change must be addressed through coordinated,

multilateral strategies that do not inflict undue harms

on the U.S. economy. EPA correctly determined that

“climate change raises important foreign policy issues,”

and it appropriately recognized that imposing

unilateral, mandatory restrictions on one sector of the

economy could “weaken U.S. efforts to persuade key

developing countries to reduce” their own greenhouse

gas emissions.?

2 Pet. App. at A-86.

4

A. The Issue Of Global Climate Change Raises

Important Foreign Policy Concerns.

Because carbon dioxide and other greenhouse gases

disperse throughout the atmosphere, their effect on

climate is a global issue that does not lend itself to

unilateral, piecemeal approaches.’ In the conduct of its

foreign policy, the United States has rejected go-it-alone

strategies and focused instead on promoting voluntary

and coordinated multilateral commitments. As

President Bush has emphasized, “[c]limate change,

with its potential to impact every corner of the world, is

an issue that must be addressed by the world.”

This country’s foreign policy leaders have likewise

recognized that mandatory restrictions on United

States’ greenhouse gas emissions would impose

potentially enormous burdens on the nation’s

economy, as well as its citizens and businesses.°

3 See Thomas R. Karl & Kevin E. Trenberth, Modern Global Climate

Change, 302 SCIENCE 1719 (Dec. 5, 2003) (greenhouse gases, once

emitted, are “typically halfway around the world a week later,

making climate change a truly global issue”).

4 Remarks of the President George W. Bush on Global Climate

Change, 2001 WL 637709, at 1 (June 11, 2001).

5 Id. at 3 (complying with Kyoto’s “mandates would have a

negative economic impact, with layoffs of workers and price

increases for consumers”); see also Department of Energy, Energy

Information Administration, What Does the Kyoto Protocol Mean to

U.S. Energy Markets and the U.S. Economy? (Oct. 1998) available at

http://eia.doe.gov/oiaf/kyoto/kyotobtext. html. (projecting actual

losses between $102 and $437 billion in 2010 in order to reduce

5

Because greenhouse gases mix in the atmosphere,

however, such restrictions might have no meaningful

effect on greenhouse gas concentrations in the

atmosphere absent efforts by developing countries to

undertake similar emissions reductions.®

In fact, any program seeking to control greenhouse

gases that does not involve China, India, and other key

developing nations is unlikely to succeed. Emissions

from developing nations will exceed those from

industrialized nations by the early 2020s. It is expected

that, from 2003 to 2030, almost seventy-five percent of

the increase in total carbon dioxide emissions will come

from developing countries,” with most of the growth

contributed by China and India. Two years ago, China

became the world’s second-largest petroleum

consumer, and is projected to have 150 million private

motor vehicles by 2015, a 150-fold increase over 2002

levels. China’s economy is growing at twice the rate of

the United States’ economy, and its population is

increasing by 10.4 million people a year. The increase

greenhouse gas emissions to levels proposed by the Kyoto

Protocol).

® Robert R. Nordhaus & Kyle W. Danish, Pew Center on Global

Climate Change, Designing a Mandatory Greenhouse Gas Reduction

Program for the U.S., at 2 (2003) (“a ton of greenhouse gases emitted

in the United States has the same impact as a ton emitted in

Malaysia”). |

7? Congressional Budget Office, Uncertainty in Analyzing Climate

Changes: Policy Implications 1 (Jan. 2005).

6

in emissions from China alone will exceed the increase

of emissions from all developed nations (OECD

nations) and Russia combined.®

Petitioners have suggested, optimistically, that if the

United States were to move aggressively to reduce

greenhouse gas emissions from new moior vehicles,

other countries might make similar emissions

reductions.? But there are no assurances that this

would occur. Although western European nations may

well continue to work for controls, China, India, and

other developing countries are unlikely to implement

emissions reductions absent binding multilateral

agreements. In any event, these issues require

judgments that the political branches of the federal

government and, particularly, the Executive Branch in

the conduct of foreign policy have the responsibility to

make.

B. The United States’ Foreign Policy Favors

Comprehensive, Multilateral Strategies For

Addressing Global Climate Change.

Given the potential costs of controlling greenhouse

gas emissions, the United States has sought to address

8 US. Dept. of Energy, Energy Information Administration,

International Energy Outlook 92 (June 2006).

9 See JA 239 (arguing that if “the U.S. takes steps to reduce motor

vehicle emissions, other countries are very likely to take similar

actions regarding their own motor vehicles using technology

developed in response to the U.S. program”).

7

the issue of climate change through comprehensive,

multilateral strategies, while rejecting mandatory,

unilateral controls that could cause undue harm to the

U.S. economy.

1. The President and Congress Have Rejected

Mandatory Emissions Reductions That

Would Unduly Harm The United States’

Economy.

Two decades ago, Congress enacted the Global

Climate Protection Act of 1987, mandating an

international approach to global climate change.'° The

Act designated the Department of State as the lead

executive agency responsible for United States’ foreign

policy regarding climate change. At the same time,

Congress tasked EPA with “developing and proposing

to Congress a coordinated national policy on global

climate change.”!! The responsibilities assigned to the

two agencies are clearly related, and Congress

understood that a “coordinated national policy on

global climate change” would have domestic and

international aspects.

Five years later, the United Nations Framework

Convention on Climate Change (UNFCCC) became the

first international agreement to address the issue of

global climate change. Seeking to encourage a

coordinated international response, the UNFCCC

10 Pub. L. No. 100-204, Part XI, § 1103, 101 Stat. 1331 (1987).

11 Jd.

8

makes clear that “the global nature of climate change

calls for the widest possible cooperation by all

countries and their participation in an effective and

appropriate international response.” | Under the

UNFCCC, participating nations agreed to work

together to negotiate future binding commitments

through which the international community might

reduce worldwide greenhouse gas emissions.!2

The Senate approved the UNFCCC in 1992,!3 and

since that time, the United States has remained actively

involved in the multilateral frainework established by

the UNFCCC.'* Negotiations under the UNFCCC

resulted in the Kyoto Protocol in late 1997. While the

Administration was negotiating the Kyoto Protocol,

however, the Senate unanimously adopted the

Byrd-Hagel resolution, making clear that the Senate

would not ratify any protocol that did not require

substantive participation by developing countries or

that would damage the United States economy. The

12 See United Nations Framework Convention on Climate Change,

art. 4.1, 4.1(b) & (f), 4.2, 31 1.L.M. 849, 855-56 (May 9, 1992).

13 U.N. Framework Convention on Climate Change: Hearing

Before S. Comm. on Foreign Relations, 102nd Cong. 2d Sess. 93

(1992).

14 Remarks by the President on Global Climate Change, 2001 WL

637709, at 1 (June 11, 2001) (committing the United States “to work

within the United Nations framework and elsewhere to develop

with our friends and allies and nations throughout the world an

effective and science-based response to the issue of global

warming” ).

9

later Knollenberg amendments to the FY 1999 and 2000

VA-HUD and Independent Agency Appropriations

Acts likewise bar EPA from implementing the Kyoto

Protocol.'5

Given Congress’s strong objections to the Kyoto

Protocol, President Clinton did not submit it to the

Senate for its advice and consent to ratification.

Instead, he reassured Congress that, although the

“industrial world must lead, ... developing countries

also must be engaged.”'® President Clinton made clear

that, as a matter of policy, the United States would “not

assume binding obligations unless key developing

nations agree to participate meaningfully in the

effort.”!7

The United States is now pursuing policies that

encourage voluntary, multilateral efforts to reduce

greenhouse gas emissions.!® Against this foreign policy

15 Pub. L. No. 105-276, 232 (1998).

16 Remarks of the President William J. Clinton at the National

Geographic Society, 2 Pub. Papers 1408, 1410 (Oct. 22, 1997).

17 Id.

18 See M. Albright Brief at 15 n.14. An example of the existing U.S.

approach is the Asia-Pacific Partnership on Clean Development

and Climate, which on July 28, 2005, announced it would seek “to

develop, deploy, and transfer cleaner, more efficient technologies

and to meet national! pollution reduction, energy security, and

climate change concerns, consistent with the U.N. Framework

Convention on Climate Change.” Pamela Najor, United States Joins

10

backdrop, EPA correctly noted that, in light of “the

large populations and growing economies of some

developing countries, ... [any potential benefit of EPA

regulation could be lost to the extent other nations ...

let their emissions significantly increase.” !9

2. A Multilateral Approach To Climate

Change Is Consistent With The United

States’ Approach To Other Issues cee

The Global Environment.

The United States’ multilateral approach to the issue

of global climate change is by no means unprecedented.

For nearly a century this Nation has handled global

energy and environmental problems as a matter of

international diplomacy.

When dealing with trans-boundary disputes with

our close neighbors to the North and South, for

example, the United States has traditionally relied on

treaties, compacts, and other bilateral arrangements.

Such arrangements include the International Joint

Commission (IJC) under the U.S.-Canada Boundary

Waters Treaty of 1909, and the International Boundary

and Water Commission (IBWC) operating under the

U.S.-Mexico Agreement on Cooperation for the

Protection and Improvement of the Environment in the

Border Area. In 1991, Canada and the United States

Five Other Nations In Effort To Cut Greenhouse Gas Emissions, 36

Env’t Rep. (BNA) 1549 (July 29, 2005).

19 Pet. App. at A-86.

11

entered into the Canada-United States Agreement on

Air Quality.?

To the extent that these trans-boundary issues need

to be addressed domestically, Congress has enacted

specific legislation giving EPA authority to regulate. In

1990, for example, Congress acted to reduce the

transport of sulfur and nitrogen oxides in subchapter

IV-A of the Clean Air Act, after finding “the problem of

acid desposition is of national and _ international

significance.”*!_ This program is primarily aimed at

improving domestic air quality, but it also reduces

emissions to Canada.

Glossing over the United States’ history of

addressing global energy and environmental issues as a

matter of foreign diplomacy, petitioners and their amici

contend that the regulatory program for stratospheric

ozone shows that international problems can be

effectively handled with programs based, at least

initially, on domestic law.” But petitioners

fundamentally misunderstand how the stratospheric

ozone program developed.

Stratospheric ozone depletion began to be

recognized by the scientific community in the 1970s,

after the Nobel Prize in Chemistry was awarded to

three scientists who helped identify the threat that

20 Agreement on Air Quality, Can.-U.S., 30 1.L.M. 676 (1991).

21 42 US.C. § 7651 et seq.

22 See, e.g., M. Albright Brief at 11.

12

human activities posed to the ozone layer. Three

years later, in 1977, Congress took specific legislative

action by creating a Part B-Ozone Protection program

as part of the Clean Air Act’s Subchapter 1.7% In

enacting this new statutory scheme, Congress

recognized the potential threat of ozone reductions in

the stratosphere and the need for “possible future

regulatory action.”*6 The law provided for studies,

research and monitoring, and reports to Congress.?” It

also gave the President authority to undertake

international agreements through the Secretary of

State,2* and delegated express authority for EPA to

promulgate regulations’ controlling substances

reasonably anticipated to affect ozone in the

stratosphere.”?

While EPA finalized regulations under the Toxics

Substances Control Act (TSCA) that banned the use of

chlorofluorocarbon (CFC) propellants in nonessential

aerosol sprays in 1978, it took no comprehensive steps

23 Stratospheric Sink for Cholorofluoromethanes: Chlorine Atom

Catalyzed Destruction of Ozone, 249 Nature 810 (1974).

24 U.N. Environment Program, The Impact of Ozone-Layer

Depletion 13 (1992).

2 42 U.S.C. § 7451 (pre-1990).

26 42 U.S.C. § 7451(a)(4) (pre-1990).

27 42 US.C. §§ 7453, 7454, & 7455 (pre-1990).

28 42 U.S.C. § 7456 (pre-1990).

29 42 US.C. § 7457 (pre-1990).

13

to address this global problem.” Around the same

time, the United Nations formed a Coordinating

Committee on the Ozone Layer.*! But no meaningful

actions occurred until 1984 when the United States

began pushing for coordinated, global action.

One year later, the international community

adopted the Vienna Convention For Protection of the

Ozone Layer, which established a multilateral

framework for addressing the issue of stratospheric

ozone depletion.*? Then, in September 1987, the United

States and twenty-three other nations signed the

Montreal Protocol on Substances that Deplete the

Ozone Layer, agreeing to impose controls on emissions

of ozone-depleting substances.** To comply with the

Montreal Protocol, EPA promulgated regulations on

December 14, 1987, and further regulations on August

30 Certain Fluorocarbons (Chlorofluorocarbons ) in Food, Food

Additives, Drug, Animal Food, Animal Drug, Cosmetic, and

Medical Device Products as Propellants in Self-Pressurized

Containers, 43 Fed. Reg. 11,301, Certain Fluorocarbons

(Chlorofluorocarbons ) in Food, Food Additives, Drug, Animal

Food, Animal Drug, Cosmetic,.and Medical Device Products as

Propeliants in Self-Pressurized Containers (Mar. 17, 1978).

3! Elizabeth P. Barratt-Brown, Building a Monitoring and Compliance

Regime Under the Montreal Protocol, 16 YALE J. INT’L L. 519 (1991).

32 Vienna Convention for the Protection of the Ozone Layer, Mar.

22, 1985, 26 I.L.M. 1529 (entered into force Sept. 22, 1988).

33 S. Treaty Doc. No. 100-10, 1522 U.N.T‘S. 3, 26 LL.M. 1550 (1987)

(entered into force Jan. 1, 1989).

14

12, 1988.54 On May 2, 1989, the First Meeting of the

Parties to the Montreal Protocol was held in Helsinki,*>

which led to an agreement to phase out ozone

depleting substances. By August 1990, sixty-three

countries representing over ninety percent of the

consumption of substances controlled by the Protocol

had ratified the agreement. Finally, on November 15,

1990, the United States added subchapter VI to the

Clean Air Act — Stratospheric Ozone Protection. This-

subchapter regulated specified ozone-depleting

substances in order to satisfy the United States’

obligations under the Montreal Protocol.%”

In short, contrary to the suggestions of petitioners

and their amici,® the successful effort to limit the

release of ozone-depleting substances started by

building an international program that was then

supplemented by granting EPA express authority in the

1990 Amendments to the Clean Air _ Act.

4 Protection of Stratospheric Ozone, 52 Fed. Reg. 47,489 (Dec. 14,

1987); Protection of Stratospheric Ozone, 53 Fed. Reg. 30,566 (Aug.

12, 1988).

35 Helsinki Declaration on the Protection of the Ozone Layer, May

2, 1989, 28 1.L.M. 1335 (1989); see also London Amendments to the

Montreal Protocol on Substances that Deplete the Ozone Layer, 30

I.L.M. 537 (1991) (multilateral agreement to accelerate the phase-

out of ozone depleting substances).

36 Pub. L. No. 101-549, Title V1, 104 Stat. 2399 (Nov. 15, 1990).

37 See, e.g., 42 U.S.C. § 7671n.

38 See, e.g., Pet. Br. at 27; M. Albright Br. at 11.

15

Notwithstanding broad scientific consensus on the

problems of ozone depletion, EPA did not assume that

it already had authority to address the issue under the

Clean Air Act. Congress ultimately granted the Agency

such authority, but only after the United States had

coordinated a global response to the problem of ozone

depletion. Moreover, the specific authority and

direction established in Title VI of the Clean Air Act

was based on and crafted to comply with the

obligations the United States had negotiated and

undertaken in the Montreal Accord.

C. Congress Has Repeatedly Declined To Impose

Mandatory Restrictions On Greenhouse Gas

Emissions In The Absence Of An Acceptable

International Regime.

Congress has never given EPA specific authority to

regulate greenhouse gases. Because the President and

Congress have sought to develop an international

framework for addressing the issue of global climate

change, Congress has consistently declined to adopt

proposals requiring or even authorizing mandatory

controls on greenhouse gas emissions. The large

number of bills that Congress has considered and

rejected, including bills that would have specifically

delegated authority to EPA to regulate greenhouse gas

emissions, provide strong evidence that EPA does not

already have authority under the Clean Air Act to

regulate greenhouse gas emissions for purposes of

addressing global climate change.

16

In the 105th Congress (1997-1998) seven bills

dealing with climate change were introduced; in the

106th Congress (1999-2000) twenty-five bills were

introduced. In the 107th Congress (2001-2002) the

number increased to eighty, and in the 108th Congress

(2003-2004), the number reached nearly one hundred.*?

In the 109th Congress (2005-2006), as of August 2005,

fifty-nine bills, resolutions, and amendments

addressing global climate change and greenhouse gas

emissions had been introduced.” Congress's failure to

act on these many legislative proposals shows that,

although Congress favors voluntary reductions in

greenhouse gases and further research, it is not willing

to adopt more comprehensive programs that impose

mandatory, enforceable requirements, absent a

coordinated international response.

For example, President George W. Bush announced

his Clear Skies Initiative on February 14, 2002, which

included a plan to reduce the greenhouse gases emitted

per dollar of gross domestic product eighteen percent

by 2012. The bill also proposed reductions in nitrogen

oxides, sulfur, and mercury from most fossil-fueled

electric power generators, but did not include

39 Legislation in the 108th Congress Related to Global Climate

Change, available at http://www.pewclimate.org/what_s.being_

done/in_the_congress//108th.cfm (last visited Oct. 18, 2006).

40 Id. at 109%.

17

mandatory controls on carbon dioxide emissions.*! The

proposed legislation was never approved. Similarly,

in 2003, Senators Joseph Lieberman and John McCain

introduced the well-publicized Climate Stewardship

Act, which sought to reduce carbon dioxide emissions

to 2000 levels by 2010 through a cap on emissions and

an emissions credit trading program.*? The bill was not

approved, and on May 26, 2005, a modified version of

the bill, known as the Climate Steward and Innovation

Act, was introduced. The bill proposed giving EPA

express authority to promulgate regulatory programs

that would control greenhouse gas emissions from the

41 Remarks by President George W. Bush on Climate Change and

Clean Air Act at National Oceanic and Atmospheric

Administration, Feb. 14, 2002, Daily Env’t Rep. (BNA), Feb. 15,

2002,, at E-1.

42 See Steve Cook, Bush Promotes Administration's Air Policies, Urges

Congress to Approve Clean Skies Bill, 34 Env’t Rep. (BNA) 2062 (Sept.

19, 2003); Senate GOP Signals Death of Clear Skies After Committee

Deadlock, XX11 ENVTL POL’Y ALERT (Inside EPA) 6:10

(Mar. 16, 2005).

43 A companion bill was introduced in the House by

Representatives Wayne Gilchrist (R-Md.) and John Oliver (D-

Mass.). See Pamela Najor, Bills Reintroduced in Senate, House to Cut

U.S. Emissions of Greenhouse Gases by 2010, 36 Env’t Rep. (BNA) 321

(Feb. 18, 2005).

18

transportation, industrial, and commercial sectors.“ It _

was voted down in a 60 to 38 vote.

Rather than requiring mandatory emissions

reductions, Congress has recognized the potential

burdens that such mandates might impose on the

United States’ economy. On May 18, 2005, for example,

the Senate Energy and Natural Resources Committee

voted against increasing fuel-economy standards

(which would have decreased carbon dioxide

emissions) for SUVs and light trucks in an energy bill.‘

The recent Energy Policy Act of 2005 likewise did not

include any provision directly regulating carbon

emissions.” To the contrary, although the Act provides

incentives to encourage the development of nuclear

and renewable energy, it provides substantially more

44 Pamela Najor, Incentives to Push Technology Added to Bill by

McCain, Lieberman on Greenhouse Gases, 36 Env’t Rep. (BNA) 1118

(Jun 3, 2005).

45 In the 108th Congress, bills providing for carbon dioxide

controls were introduced by Senator Jeffords (S. 366), Senator

Carper (S. 843), Congressman Waxman (H.R. 2042) and

Congressman Bass (H.R. 3093). Congress took no action on any of

these legislative proposals.

46 Lynn Garner, Senate Committee Defeats Efforts to Close SUV

“Loophole,” Boosts Clean Coal Funding, 36 Env’t Rep. (BNA) 1043

(May 20, 2005); see also Safe, Accountable, Flexible and Efficient

Transportation Act: A Legacy for Users, Pub. L. No. 109-59, 119

Stat. 1144 (2005).

47 Pub. L. No. 109-58, 119 Stat. 594 (Aug. 8, 2005).

19

money to expand the use of carbon-based fuels, which

are the major source of carbon dioxide emissions.

II. EPA’s Administrator Appropriately Considered

Foreign Policy Issues When Denying The Petition

For Rulemaking.

Petitioners and their amici contend that foreign

policy considerations should play no role in EPA’s

decision not to regulate greenhouse gases under the

Clean Air Act. But this narrow view of EPA’s

regulatory prerogatives cannot be squared with the

Clean Air Act or the history of regulation.

A. Congress Has Never Granted EPA Authority

To Regulate Greenhouse Gases For Purposes

Of Affecting The Global Climate.

Petitioners and their amici argue that EPA’s

Administrator should not have considered United

States’ foreign policy when denying the petition for

rulemaking. They complain that EPA lacks the

“expertise necessary to make foreign policy judgments”

and that EPA’s “judgment was not produced through

consultation with expert foreign policy agencies.” But

the Clean Air Act does not mandate that EPA regulate

48 M. Albright Brief at 3. There is no basis in the record for this

statement. The Administrator of the EPA played a major role with

the Department of State in developing our foreign policy on

climate change. See, eg., U.S. Won't Follow Climate Treaty

Provisions, Whitman Says, N.Y. TIMES, Al9 (Mar. 28, 2001). Cited

in M. Albright Br. at 14, fn. 12.

20

in a manner that requires it to be oblivious to world

events. Nor can this head-in-the-sand approach be

reconciled with settled administrative practice.‘

As part of the unitary Executive, federal agencies

are expected to take into account the President's foreign

policy objectives. As commentators have recognized,

the President's “wide-ranging powers to supervise and

guide” the activities of administrative agencies, are

intended to assure that those activities are coordinated

within the Executive Branch and support national

policies, including foreign policy.

Perhaps recognizing that there is nothing inherently

wrong with EPA’s consideration of the President's

foreign policy objectives, petitioners and their amici

assert that EPA may not use foreign policy to ignore the

mandates of the Clean Air Act.>! But that is not what

EPA has done. The EPA Administrator’s reference to

49 Cf. 5 U.S.C. § 553(a)(1) (requiring agencies to engage in notice

and comment rulemaking, “except to the extent that there is

involved a military or foreign affairs function of the United

States”); see also International Brotherhood of Teamsters v. Pena, 17

F.3d 1378 (D.C. Cir. 1994) (upholding U.S. Department of

Transportation rule exempting Mexican Truckers from complying

with US. motor vehicle laws under a Memorandum of

Understanding with the Mexican government).

50 Geoffrey P. Miller, The Unitary Executive In a Unified Theory of

Constitutional Law: The Problem of Interpretation, 15 Cardozo L. Rev.

201, 201 (1993)

51 See M. Albright Brief at 16-19 (arguing that EPA may not use “a

foreign policy trump to avoid domestic regulation”).

21

foreign policy concerns merely supports her

“judgment” that EPA lacks authority to regulate

domestic greenhouse gas emissions, and even if

Congress had vested EPA with such authority, exercise

of that authority would be inappropriate, and in the

absence of any effective international regime would not

address any dangers those emissions pose. The

Administrator did not claim that foreign policy

concerns allowed EPA to ignore the statutory directives

of the Clean Air Act; instead, she cited those concerns,

among others, in order to ascertain and fulfill those

directives.

In any event, the Clean Air Act contains no

indication that Congress granted EPA authority to

regulate greenhouse gas emissions, much less that

Congress intended to cabin the agency’s discretion by

severely restricting the factors that EPA may consider

in determining whether to regulate.®? Congress’s

failure to grant EPA express authority in this area is

telling because Congress has enacted _ specific

legislation to mandate control of long-distance

transport of sulfur and nitrogen compounds,°? to

52 See M. Albright Brief at 14 n.11 (quoting Text of a Letter froin

President George W. Bush, Mar. 13, 2001, available at

http://www.whitehouse.gov /news/releases/2001/03/20010314.html

(recognizing that “carbon dioxide ... is not a ‘pollutant’ under the

Clean Air Act”) (emphasis added).

3 Clean Air Act, subchapter IV, 42 U.S.C. §§ 7401-7416.

22

protect visibility,* and to phase-out ozone depleting

substances.°° Each of these ecosystem protection

programs has_ specific and _ detailed statutory

authorization. In contrast to these express statutory

. authorizations, there is no provision that specifically

grants EPA authority to regulate carbon dioxide for

purposes of affecting the global climate. To the

contrary, section 602(e) provides for the Administrator

to determine the global warming potential of ozone

depleting substances, but specifically states that the

provision is not to be the basis for any additional

regulation. Likewise, in section 103(g), Congress

authorized basic research to develop non-regulatory

strategies and technologies for a list of substances,

including carbon dioxide, but took care to make clear

that nothing in that subsection should be construed to

authorize air pollution control requirements.

It appears, in short, that Congress has consistently

supported the Executive Branch’s efforts to pursue an

international regime for the regulation of greenhouse

gas emissions as a predicate to domestic regulation.

54 Clean Air Act, 42 U.S.C. §§ 7491-7492.

55 Clean Air Act, 42 U.S.C. §§ 7601-7617.

5% Cf Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635

(1952) (“When the President acts pursuant to an express or implied

authorization of Congress, his authority is at its maximum, for it

includes all that he possesses in his own right plus all that

Congress can delegate”).

23 ‘

B. Because Carbon Dioxide Emissions Disperse

Throughout The Earth’s Atmosphere, They Are

Materially Different From Most Pollutants

Regulated Under The Clean Air Act.

Petitioners and their amici provide three examples

- of pollutants that over a thirty-year period have been

incorporated into EPA’s regulatory program under the

Clean Air Act: lead, benzene, and particulates.°”? But

the regulatory history of these compounds does not

support the view that carbon dioxide should be

regulated under section 202 of the Clean Air Act. All

three substances are well known pollutants that

directly injure health, have an extensive history of

governmental regulation, and can be _ practically

controlled at a local level, where most of the adverse

effects occur, without the need for a coordinated

international response. The success of efforts to

regulate lead, benzene, and particulates in the United

States does not depend on whether China, India, and

other key developing countries also are regulating

those substances.

Lead was known to be toxic since biblical times

although it was only in the later part of the twentieth

century that lead in the form of tetraethyl lead was

shown to be associated with health risks. The US.

government nonetheless did not regulate lead until

1973, when Congress determined that lead reduction in

57 See Former EPA Administrators’ Brief at 8-19, 23-26.

24

fuel was needed to protect new emission control

technologies that utilized catalytic converters. EPA’s

regulation was based on section 211(c)(1)(B) of the

Clean Air Act, which allows the Administrator to

regulate a fuel or fuel additive that “will impair to a

significant degree the performance of any emission

contro] device or system ....” Additional, health-based

regulations concerning head were not promulgated

until nearly a year later.°?

Petitioners’ amici likewise seek to compare carbon

dioxide emissions to benzene, characterizing EPA’s

decision to regulate benzene as an example of EPA

making an “endangerment-type finding based on the

best available science” and then issuing “implementing

regulations to control various benzene sources.”© But,

here again, benzene had been recognized as a

dangerous substance since at least 1900.°' Unlike

carbon dioxide, which is non-toxic in the concentrations

found in the atmosphere, benzene is a human

carcinogen and hazardous to human health.** Benzene

regulation thus does not have any relevance in trying to

58 Regulation of Fuels and Fuel Additives, 38 Fed. Reg. 1254 (Jan. 10,

1973).

59 Regulation of Fuel and Fuel Additives: Control of Lead Additives in

Gasoline, 38 Fed. Reg. 33,734 (Dec. 6, 1973).

60 See Former EPA Administrators’ Brief at 18.

61 Jd. at 16.

62 Jd. at 15-17.

25

determine whether EPA has authority to regulate

carbon dioxide under the Clean Air Act.

Finally, petitioners’ amici attempt to compare carbon

dioxide emissions to EPA’s regulation of particulate

matter,“ but their analysis is again flawed and

irrelevant. Particulate matter has been regulated as a

well-recognized “air pollutant” in many large cities in

the eastern United States since the 1880s. When the

federal government entered the air pollution control

field, the Air Quality Act of 1967 required States to set

ambient air quality standards based on federal

criteria,> and particulates were among the criteria

pollutants to be regulated. The regulation of

particulates by the federal government thus predates

the creation of EPA in 1970. In 1970, the Clean Air Act

as amended gave the Administrator authority to

promulgate air quality standards that had previously

been exercised by the States.*? Air quality standards

controlling particulate matter were first promulgated

by EPA in 1971, and further revisions to EPA's

63 Id. at 23.

* Amold W. Reitze, Jr., The Legislative History of U.S. Air Pollution

Control, 36 HOUSTON L. REV. 679, 684 (1999).

65 Id. at 700; see also Pub. L. No. 90-148, 81 Stat. 485 (1967).

& The author of this brief personally participated in the setting of

these standards.

67 Pub. L. No. 91-604 § 109, 84 Stat. 1679 (Dec. 31, 1970).

26

regulations were made in 1987 and in 1997. Unlike

carbon dioxide, particulate matter has thus been

‘regulated for as long as the federal government has

participated in the air pollution control effort.

Since the Clean Air Act amendments of 1970, there

has been one program that has successfully addressed a

threat to the global ecosystem. The release of ozone-

depleting substances threatened the integrity of the

earth’s protective ozone layer, but the approach used

by the legal system to address ozone-layer depletion

differs significantly from the treatment of carbon

dioxide advocated by petitioners.

The ozone depletion control program resulted in a

comprehensive legislative effort dealing with all

significant ozone depleting substances including

chlorofluorocarbons, halons, carbon tetrachloride,

methyl chloroform, and methyl bromide.®? The

program also regulates nearly all significant producers

of ozone depleting gases. In contrast, the petitioners

seek to regulate only motor vehicles sold in the United

States, focusing on carbon dioxide.

Another component of a successful program is the

availability of an appropriate technological solution.

68 Revisions to the National Ambient Air Quality Standards For

Particulate Matter, 52 Fed. Reg. 24,663 (July 1, 1987); National

Ambient Air Quality Standards For Particulate Matter, 62 Fed.

Reg. 38,711 (July 18, 1997).

69 Clean Air Act §§ 602 (b), 604(h), 42 U.S.C. §§ 7671a(b), 7671C{e)

27

The ozone-depletion program was enacted after a

technology was developed that could substantially

reduce the severity of the problem. In contrast, there is

no effective technology for preventing carbon dioxide

from being released from combustion. It is not possible

with existing technology, or any technology expected to

be developed, to achieve carbon dioxide reductions

from motor vehicles without increases in fuel economy

and/or controls on vehicle miles traveled. Neither of

these types of controls are suitable for development or

enforcement using the Clean Air Act.

Finally, the success of the ozone depletion program

was due to the international cooperative efforts to

phase out ozone depleting substances in contrast to the

unilateral approach advocated by petitioners for the

control of carbon dioxide. The threat to the global

ecosystem from greenhouse gases cannot be, and was

not intended by Congress to be, addressed with a

piecemeal solution implemented by EPA _ alone.

Instead, Congress and the Executive Branch have

chosen to address the employment, economic

competitiveness, foreign policy, and other important

factors involved and to develop a “coordinated

national policy.”

**+* £ *

For nearly twenty years, the United States has

engaged in extensive diplomatic efforts focused on

developing a comprehensive, multilateral strategy for

addressing the issue of global climate change. Those

efforts as a matter of foreign policy have consistently

28

rejected mandatory, unilateral, domestic controls that

would unduly burden the United States’ economy and

potentially interfere with attempts to achieve a

coordinated international solution to an issue of global

concern. Against this backdrop, EPA sensibly

determined that Congress had not granted it

never-before-recognized authority under the Clean Air

Act to regulate greenhouse gases. The Agency

appropriately recognized that such regulation could

well interfere with the United States’ broader foreign

policy objectives. Its decision should-not be disturbed.

29

CONCLUSION

The Court of Appeals’ decision should be affirmed.

Respectfully submitted,

Arnold W. Reitze, Jr.

COUNSEL OF RECORD

The George Washington

University Law SchooL

2000 H STREET, N.W.

WASHINGTON, D.C. 20052

(202) 994-6908

Counsel for Amicus Curiae

October 24, 2006

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