Amicus Curiae Brief — Massachusetts v. EPA

472, Sirens cae TE

(3D OCT 24 2006

No. 05-1120 OFFICE OF THE CLERIC |

IN THE

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, ef al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF OF UNION FOR JOBS AND THE

ENVIRONMENT AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Scott H. SEGAL* EUGENE M. TRISKO

JASON B. HUTT GENERAL COUNSEL

SHELBY J. KELLEY UNION FOR JOBS AND THE

CHRISTOPHER STASZAK ENVIRONMENT

BRACEWELL & GIULIANILLP P.O. Box 47

2000 K Street, P/.W. Glenwood, MD 21738

Suite 500 (301) 639-5238

Washington, D.C. 20006

(202) 828-5845

*Counsel of Rgcord October 24, 2006

q

er

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ........ccsccccsssesssessesereeseees |

SUMMARY OF THE ARGUMENT.............:cccsssesessssesnenseees 3

IL.

Il.

CARBON EMISSIONS POSE UNIQUE

INTERNATIONAL ENVIRONMENTAL

ISSUES THAT REQUIRE DOMESTIC

POLICY TO BE CONSISTENT WITH US

PRSRIIES DIETS eniecinsersrennicsivinenrscsescanmsorseqnesanees 5

A. CO2 is Evenly Concentrated in the

Atmosphere Around the World..................... 7

B. Participation by Developing Nations is

Essential to Meaningful Resolution............... 7

c. CO2 Reductions Will Require

Reduced Energy Use And

Productivity in the US.............:cccsseeseeeseees 10

THE US HAS A DEFINITIVE FOREIGN

POLICY REGARDING CARBON

EMISSIONS ESTABLISHED BY THE

PRESIDENT AND SUPPORTED BY THE

Fe OED vitrinctinendnenibindeninatasttecncaniinintenscecmseseri 12

A The President, as Leader of the

Executive Branch, Provided Clear

Direction Regarding US Foreign

Policy on Carbon Emissions ...................+++: 13

B. Congress’ Actions Reinforce the

President's Foreign Policy on Carbon

I crieiccsnenitnbinstntedinenensctnmneniideititinensiiotatnel 17

EPA PLAYS AN INTEGRAL ROLE IN US

FOREIGN POLICY REGARDING

CARIIOIN EMISSIONS. ...2.20000csccecsecsessosessossoreseseeses 20

ii

TABLE OF CONTENTS - Continued

A. EPA is Part of a Unitary Executive

Branch Implementing the President's

Policies and Congressional Directives...

B. In the Unitary Form of Government,

EPA Plays a Critical Role in the

Formation and Implementation of

Environmental Policy — Foreign and

IEEE cicsnisliiiscinaiebehilintniionsirccanteinnvann

C. EPA Has Played a Historic and

Substantive Role on Carbon

Emissions at the Global Level ...............

IV. EPA SHOULD NOT BE PRECLUDED

FROM CONSIDERING US FOREIGN

POLICY REGARDING CARBON

EMISSIONS WHEN ACTING ON THE

SECTION 202 PETITION .......0c..ccscccccsosesecoseerees

A. EPA's Consideration of US Foreign

Policy on Carbon Emissions is

Entitled to Chevron Deference.............-.

B. EPA's Consideration of US Foreign

Policy Regarding Carbon Emissions is

Consistent with the Unitary Executive

PUNE ccsnccncosecnstentctnassscentenndnsnsenindenante

III ectacinesccnncssesssstaiscmetninnisieisinmemamminteinaneean

ili

TABLE OF AUTHORITIES

Page

Cases

American Ins. Ass'n v. Garamendi,

Be Ry Ce Dccrientnchopiesenctnctccmianedeninitcinsectomnibeenta 27

Baker v. Carr,

es HI iia inanindicindiconsedsniniapsanapiitiinianastebeuinees 28

Barclays Bank PLC v. Franchise Tax Bd.,

Fee ae SD ccctntcrnansstinrssenincssanisnsernsctineiognciveinanion 26

Buttfield v. Stranahan,

Be a ID cetccccncneiicascesniteenineninceianiepetaiiions 29, 30

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc.,

SE Rs PE Ci cccesncspnstitansentidictnbensencatatascananiniineiiotnin 24

Connecticut v. Am. Electric Power Co., Inc.

40 F. Supp. 2d 265 (S.D.N.Y. 2005).......cccccscseccsersrerseens 28

Connecticut v. Am. Electric Power Co., Inc., 40 F. :

Supp. 2d 265, appeal docketed, No. 05-5104-cv

RS TORN Sis AIUD cicatictsctvsrnscinbtnssinadnbinasensesoennsevenes 28

Container Corp. of Am. v. Franchise Tax Bd.,

a es Se incitiinttsinipseninscsesutisidasmmnnitbsaiiniacidesieaai 26

Crosby v. Nat'l Foreign Trade Council,

| are 26, 27, 28, 29

FDA v. Brown and Williamson Tobacco Corp.,

ne I niccisicruitiinscespenebaibasinetetuntenesetionibie 4, 25

New England Legal Found. v. Costle,

ee TY IIE Dhinsncnstzsiniictniicnsactenscsinnsctnasdinasdieael 6

U.S. v. Clark,

es FU cscsnsecitsiennniniasicnscsanctiainiictnabisetiaiichiaminieceia 30

iV

TABLE OF AUTHORITIES -— Continued

Page

U.S. v. Rumley,

Fe i SF oi iicseecscininsinissttitnnctncnissisidissiaieaibiaiame 30

United States v. Curtiss-Wrignt Exp. Corp.,

es Se cccitericsncssiaetevtnitvnisiniatnanaaii 20, 26

Constitutional Provisions

U.S. Const. art. I, § 8, cls. 1, 3, 11-14... eeeseseeeeeeeeeeees 26

te GF 8 fe & penne ne 17, 26

Statutes, Legislation and Treaties

138 Cong. Rec. 17,150 (Oct. 7, 1992) .........ccesescerereeeeseesees 13

1990 Amendments to the Clean Air Act, Pub. L. No.

101-549, § 821(a), 104 Stat. 2399, 2699 (1990)............ 19

GB UKs & BF Ie vectcccccsenssnnsctssssesnapicneseccsatpasiauuiainibiin 19

Se Aes B SEIN cocnccctrssncosessntninnanetncinnvinienieisiantiiiniaaias 19

GE BL. © Ge cotecscstsscstsininiataritsiinsessipensintanientiaioimaiaal 6

Clean Air Act § 103, 42 U.S.C. § 7403 .......... pacctinapiipiiiaial 19

Clean Air Act § 202(a)(1),

G2 UBL. § TIS TIE Sp cccccssicectosssonesncestveien seseeedy 5, 24, 25

Department of Transportation Appropriations Act for

FY 2001, Pub. L. No. 106-346, §346, 114 Stat.

FIO GD cercanscoecnnstocscinsesimabenccsbiiesiedncninverinaeetinatbiine 18

District of Columbia Appropriations Act for FY

2000, Pub. L. No. 106-113, 113 Stat. 1501 (1999)........ 18

Energy Policy Act of 2005, Pub. L. No. 109-58 §

1601, 119 Stat. 594 (2005), codified at 42 U.S.C.

6 SEO .cccosconsicsectansonsniasinnitisistiatiientaisidihincaaneidinal 19

Vv

TABLE OF AUTHORITIES — Continued

Page

Foreign Operations, Export Financing, and Related

Programs Appropriations Act for FY 2001, Pub.

L. No. 106-429, § 577, 114 Stat. 1900 (2000)............... 18

Foreign Relations Authorization Act for FY 2003,

Pub. L. No. 107-228, §113, 116 Stat. 1350 (2002)........ 18

H.R. 6, 109th Cong. (2005).........-c.csecessesesereseeeenes 4, 18, 19, 20

H.R. 1646, 106th Cong. § 113 (2002)............cccceccereerseseenses 18

H.R. 3194, 106th Cong. (1999) ..0.......ccccccccesssereereeeseeresenens 18

H.R. 4475, 106th Cong. § 346 (2000)..........:ccccccsseeeerenererees 18

H.R. 4811, 106th Cong. § 577 (2000)............ccccccccseeeerenenees 18

H.R. 5966, 10 1st Cong, (1990) ...........cccscssseserssesseeseessnsenes 18

National Climate Program Act of 1978, 15 U.S.C.

EE I cciesnshtsinirenstintnctatnccnenscnseamneteneensnceateeteneserent 19

Be ID IIc cctndeetsnesninenetcsemnascsnecosnnesense 18

Be I, OI oo ccscnceccestasensensencomnesnancsonssanesee 18

S. Amdt. 826, 109th Cong. (2005) ...........ccccseccesceseeeeeenenenees 18

S. Res. 98, 105 Cong. Rec. $8113-8139, 8138 (daily

I TT nest nctnasepetnsnsennabeniintcind 4, 17, 18, 29

Es FAR, BD (IDI ED cceccccccccecesccscscccssocscsescssensscssscesee 15

Regulations

Se I, Be CUI, Dh, BUFO ccccceccesessccsctnesccccnnscocecscosensd 6

68 Fed. Reg. 52,922, 52,927 (Sept. 8, 2003).......cccsecssssvesssee 7

vi

TABLE OF AUTHORITIES ~— Continued

Page

Other Authorities

Asia-Pacific Partnership on Clean Development and

Climate, U.S. Dept. of State, Work Plan for the

Asia-Pacific Partnership on Clean Development

and Climate (Jan. 12, 2006) .........ccssesssssersreseeseserseecees 15

Energy Information Administration, U.S. Dept. of

Energy, /mpacts of the Kyoto Protocol on U.S.

Energy Markets and Economic Activity (October

SUT cictesniennsressemncossensnnsannnssentnsastasnininecsiniaaiematentinints 1,2

Energy Information Administration, U.S. Dept. of

Energy, Annual Energy Review 2004 (Aug. 2005)..10, 11

Energy Information Administration, U.S. Dept. of

Energy, [International Energy Outlook 2006 (June

FE ertectscesrentsimcersettanninsnmmnenmnneniacsinmniamataeinaaiatl 8

Energy Information Administration, U.S. Dept. of

Energy, What Does the Kyoto Protocol Mean to

U.S. Energy Markets and the U.S. Economy?

GER, CII ccccccesicnsncsesesscscscsscessecstnesassbonsiistentsncinteemtonss 12

EPA, Climate Leaders: Partners Web Page,

http://www.epa.gov/statepl y/partners/index.htm!

OEE 16

EPA, GHG Reduction Goal Achievers,

http://www.epa.gov/climateleaders/partners/goala

chievers.html (last visited Oct. 23, 2006) ...........cese0+ 16

EPA, Order 1110.2 at 4(d) (Dec. 4, 1970) ............cceesceeeceeeee 22

EPA, Reorganization Plan No. 3 of 1970 (July 9,

FEF cisnsinienssrastanincsetintacsestnsesosenenmmnemesinianemmmsninmtiiinia 21

Excerpts of Remarks Before the Senate Committee

on Foreign Relations (Feb. 11, 1998)...........:seseeseereees 10

vii

TABLE OF AUTHORITIES — Continued

Page

John R. Justus & Susan R. Fletcher, Congressional

Research Service, Resources, Science, and

Industry Division, Global Climate Change, CRS

OG OU 13

Judith E. Ayres, Assistant Administrator, OLA, EPA,

Statement before the Senate Committee on

Environment and Public Works (July 25, 2001)............ 22

Letter from Madeleine K. Albright, Secretary of

State, U.S. Dept. of State, Environmental

Diplomacy: The Environment and U.S. Foreign

Policy,

http://www.state. gov/www/global/oes/earth.html

GERD CERIN GR, ZO, FID cccscsnvesecsenserssseseresscemacencenvenssnes 5

Letter from President George W. Bush to U.S.

SURSIIRD GGwe. FF, BIE) nccceeccescsrcessessmeesenecsomessnecsevce 14

Madeleine K. Albright, Secretary of State, U.S. Dept.

of State, Opening Remarks at the Asian Post

Ministerial Conference 10+1 Meeting (July 2000).......... 7

Madeleine K. Albright, Secretary of State, U.S. Dept.

of State, Statement Before the International

Relations Committee (Feb. 12, 1998),

http://www. fas.org/asmp/resources/govern/fy99al

Seer eE nate thistncccniccsiseciednanicesnancnsicnndasiiieniibapientabiinalnisiittaabatipiees 5

Office of Management and Budget, Federal Climate

Change Expenditures Report to Congress, at 3

Organization for Economic Co-Operation and

Development, World Energy Outlook 2005

Middle East and North Africa Insights, 92 (2005)........... 8

viii

TABLE OF AUTHORITIES ~ Continued

Page

Pew Center on Global Climate Change, Climate

Change Activities in the United States (2004) ............... 11

President’s Remarks at the National Geographic

Society, 2 Pub. Papers 1408 (Oct. 22, 1997) ..........0:000 14

President's Statement on Signing the Instrument of

Ratification for the UNFCCC, 2 Pub. Papers 1818

GR Ta, BRI cccccecscenmneneytrantetiennincsnigigsnassenemmeateenecstooees 13

Press Release, EPA, Companies Set Aggressive

Greenhouse Gas Reduction Goals (Oct. 12,

2006), http://yosemite.epa.gov/opa/admpress.nsf/

a8f95239538 1d3968525701c00Se65b5/abaf76a3

1¢93d2e685257205006305cb!OpenDocument.............. 16

Press Release, Institute for Public Policy Research,

Two Thirds of the EU Countries Set to Miss

Kyoto Commitments (Dec. 27, 2005),

http://www ..ippr.org.uk/pressreleases/7id=1 863 ............ 12

Remarks to the American Bar Association

eg eee 10

Standard and Poors DRI, The Impact of Meeting the

Kyoto Protocol on Energy Markets and the

Bpnmnataag Baty WER cccceesscssccsscercesectntenesenserecessesosnsssenees 2

T. Wigley, et al., Economic and Environmental

Choices in the Stabilization of Atmospheric CO2

Concentrations, 379 Nature 240 (Jan. 18, 1996) .....5, 6, 8

Tenth Session of the COP to the UNFCCC, Buenos

Aires, Argentina, Dec. 16, 2004,

http://www.state.gov/g/oes/rls/rm/2004/39925.ht

m and

ix

TABLE OF AUTHORITIES -— Continued

Thomas R. Karl & Kevin E. Trenberth, Modern

Global Climate Change, 302 Science 1719

I ae | 5,7

U.S. Dept. of State, Fact Sheet (June 9, 1995).....cc..:esess000m 23

U.S. Dept. of State, U.S. Climate Change Policy

TRAE RR 5 TE eae 15

UNFCCC, COP, Provisional Agenda and

Annotations, 2 n.2, U.N. Doc FCCC/CP/2004/1

(Sept. 15, 2004), http://unfccc.int/resource 7

Ce ec cnicnsintnecniemtenenarmeienimmmnemneee! 9

UNFCCC, Issues in the Negotiation Process - Second

Review of Adequacy of Article 4.2(A) and (B) of

the FCCC (May 5, 2003),

http://unfecc.int/cop7/secreview. html ............ccseseeeeeeeees 8

UNFCCC, May 9, 1992, 1771 U.N.T.S. 107 ......cccccessseseeeeees 9

UNFCCC, Provisional Agenda and Annotations,

U.N. Doc. FCCC/CP/2004/1 (Sept. 15, 2004),

http://unfccc.int/resource/docs/cop10/01 .pdf..............+++ 29

UNFCCC, Report of the Conference of the Parties, 5,

U.N. Doc. FCCC/CP/1995/7/Add.1 (June 6,

1995), http://unfcec.int/cop4/07a01-1 .pdff..........ceccceeeee 9

USDA, The United Nations World Summit on

Sustainable Development,

http://www.usda.gov/sustainable/

background.htm (last visited Oct. 23, 2006)..............0+. 23

x

TABLE OF AUTHORITIES ~— Continued

Page

White House, Addressing Global Climate Change,

http://whitehouse. gov/ceq/global-change.htm]

(last visited Oct. 23, 2006) ..........sssescserceseeessereeneensenes 15

White House, OMB Mission,

http://www. whitehouse. gov/omb/organization/rol

e.html (last visited Oct. 23, 2006) .............cceeesseeesnreenees 21

INTEREST OF AMICUS CURIAE!

Unions for Jobs and the Environment ("UJAE")’ is an

association of ten national and international unions whose

3.2 million members seek to have a voice for union and

worker concerns regarding United States (“US”) global

climate change policy and other environmental issues.

UJAE member unions are engaged in various aspects of US

energy supply production, utilization and transportation.

Since its formation, UJAE has actively engaged in

the global climate change issue due to its implications for

jobs and job security relative to other nations’ workforces.

Imposition of emission reductions on US sources would

directly affect energy providers and consumers and their

workers. For instance, estimates of the costs of achieving

the Kyoto Protocol found that the US total production of

goods and services could be reduced between $60 and $94

billion (in 1996 dollars). Even more relevant to UJAE's

} ' Pursuant to Rule 37.6 of the Rules of this Court, counsel

hereby certifies that the brief submitted on behalf of amicus curiae UJAE

was not authored in whole or in part by counsel for a party, and no

person or entity other than the amicus and its staff have made a monetary

contribution to the preparation of this brief. All parties except the

Solicitor General have granted blanket consent for the filing of amicus

curiae briefs. The letter of consent for filing of this brief from the

Solicitor General will be provided.

? Formed in 2000, UJAE is a non-profit § 501(c)(4) organization

incorporated in Maryland formed of: the Brotherhood of Locomotive

Engineers; International Brotherhood of Boilermakers, Iron Ship

Builders, Blacksmiths, Forgers and Helpers; International Brotherhood of

Electrical Workers; International Brotherhood of Teamsters; Marine

Engineers Beneficial Association; Transportation Communications

International Union; United Food and Commercial Workers; United

Mine Workers of America; United Transportation Union; and, Utility

Workers Union of America. See http;//ujae.org.

> Energy Information Administration, U.S. Dept. of Energy,

Impacts of the Kyoto Protocol on U.S. Energy Markets and Economic

2

concerns was a 1998 estimate indicating that non-farm

related employment could be down by 1.1 million jobs by

2010.

Due to the far reaching implications of US decision-

making on carbon reductions, UJAE has invested significant

resources in participating in the international and domestic

arenas to help shape the US position. UJAE is accredited as

a non-governmental organization (“NGO”) with formal

observer status at the United Nations Framework Convention

on Climate Change ("UNFCCC" or "Convention"). As an

accredited observer to the UN process, UJAE has witnessed

firsthand the refusal of the developing nations to commit to

emission limitations or reductions, even as these nations

expand their energy production, industrial infrastructure and

energy use. Given the uneven commitments among sources

around the world in direct competition for market share,

UJAE supports a US position that ensures that production at

US facilities will not be jeopardized or sacrificed in favor of

production by foreign emitting facilities.

Having spent significant resources to help achieve the

current open and transparent US foreign policy on carbon

dioxide emissions, UJAE is adamantly opposed to the

Petitioners' backdoor attempt to precipitate unilateral carbon

reductions, such as those found in the Kyoto Protocol>

through the use of a rulemaking petition. Accordingly,

UJAE supports Respondents’ arguments, and therefore files

this amicus curiae brief. This brief argues that it is

appropriate for the US Environmental Protection Agency, as

an Executive agency with foreign policy resources,

experience, and expertise on international environmental

Activity, at 143 (Oct. 1998), available at

Standard and Poors DRI, The Jmpact of Meeting the Kyoto

Protocol on Energy Markets and the Economy (July 1998).

3

‘issues, to consider such foreign policy in declining to

regulate emissions.

SUMMARY OF THE ARGUMENT

As a formal observer in international climate

negotiations, amicus is well aware of the multiple

approaches suggested for the regulation of global greenhouse

gases ("GHGs"). However, as an association of

manufacturing labor unions, amicus is also aware that should

unilateral reductions be implemented without the

participation of developing countries, the US's economic

base will be severely affected without correlative

environmental benefit. Therefore, carbon policy should be

considered a matter of foreign policy beyond me scope of

Clean Air Act considerations.

EPA properly considered US foreign policy

regarding carbon emissions in denying the underiying

petition for regulation of certain GHGs emitted by motor

vehicles under the Clean Air Act ("CAA"), § 202(a)(1).

First, GHG emissions are an international issue. Carbon

released on one day essentially becomes evenly distributed

around the globe within the week. To stabilize atmospheric

GHG concentrations, participation by developing nations—

given likely growth patterns in energy-intensive activities— _

is essential. In the absence of participation by developing

nations, the US must take a comprehensive approach to

global climate change issues rooted in a domestic policy that

is consistent with foreign policy.

Second, because developing nations are reluctant to

adopt mandatory carbon reductions, the last three US

administrations have adopted a clear foreign policy that

preserves domestic options in order to maximize leverage

against recalcitrant negotiating partners.

Congress has consistently reinforced this foreign

policy. Most notably, the Senate has twice voted—in 1997

4

and in 2005—to advise that the US should not commit to

binding reductions under the Kyoto Protocol, or any similar

agreement containing binding reductions, that do not include

commitments by developing countries or that would result in

harm to the US economy. S. Res. 98, 105 Cong. Rec.

$8113-8139, 8138 (daily ed. July 25, 1997); Amdt. 817 to

H.R. 6, 109th Cong. (2005). Each successive treatment of

GHGs by Congress has steered clear of the type of

mandatory reductions sought by Petitioners, thus reinforcing

a consistent policy judgment.

Third, EPA is essential to the implementation of US

foreign policy on carbon emissions. Like every other

Executive Branch agency, and consistent with Constitutional

principles of a unitary executive, EPA is charged with

implementing the President's policies, including foreign

policy, and Congressional directives. EPA has led

international environmental delegations and played a

supporting role in other key summits and conferences—all

with US foreign policy firmly in mind.

Fourth, any argument to preclude EPA from

considering US foreign policy regarding carbon emissions

when acting on the petition belies the need for consistent

foreign and domestic policies on carbon emissions, and the

integral role of EPA in implementing the US foreign policy

on carbon emissions. Moreover, EPA's consideration of

foreign policy is entitled to Chevron deference in the absence

of clear Congressional intent, particularly where it seems

inconceivable that Congress intended to delegate a policy

decision of such economic and political magnitude to EPA

under its Section 202(a)(1) authority. See FDA v. Brown and

Williamson Tobacco Corp., 529 U.S. 120 (2000).

Accordingly, if Petitioners’ appeal here succeeds in

compelling EPA action that would be in direct contradiction

of well-established foreign policy, then not only will such

domestic policy fail to have the desired environmental effect,

5

but also the US will have lost valuable leverage necessary to

facilitate a truly international response. Therefore, amicus

respectfully submits that the Court should reject any finding

of a non-discretionary obligation on the EPA to regulate

GHGs under CAA § 202(a)(1) in light of powerful

Constitutional and administrative considerations rooted in

definitive US foreign policy.

ARGUMENT

I. CARBON EMISSIONS POSE UNIQUE

INTERNATIONAL ENVIRONMENTAL

ISSUES THAT REQUIRE DOMESTIC POLICY

TO BE CONSISTENT WITH US FOREIGN

POLICY.

In the words of former Secretary of State Madeleine

K. Albright, "[t]oday environmental issues are part of the

mainstream of American foreign policy."° No issue

demonstrates her point more than carbon dioxide ("CO2")

emissions. GHGs, once emitted, are “typically halfway

around the world a week later, making climate change a truly

global issue.” ThomasR. Karl & Kevin E. Trenberth,

Modern Global Climate Change, 302 Science 1719 (Dec. 5,

2003). Due to the global nature and long atmospheric

residence tines of GHG emissions, including CO2, states,

regions and nations cannot individually effect meaningful

change in atmospheric GHG concentrations. See T. Wigley,

* Letter from Madeleine K. Albright, Secretary of State, U.S.

Dept. of State, oes eee eo

Foreign Policy, http://wwy b

visited Oct. 23, 2006). Sesanes Seesutany Alistaba Ginn tae oath "[Wle

have incorporated environmental goals into the mainstream of our

foreign policy." Madeleine K. Albright, Secretary of State, U.S. Dept. of

noon Statement before the Lay tesncote reams Commitee y 12,

6

et al., Economic and Environmental Choices in the

Stabilization of Atmospheric COZ Concentrations, 379

Nature 240 (Jan. 18, 1996).

Carbon knows no boundaries. The conclusion ‘that

EPA is prohibited from considering whether its potential

domestic regulation of GHGs would impinge on, or conflict

with, US foreign policy is simply wrong. First, EPA is the

long-standing expert on emissions policy in the Executive

Branch. New England Legal Found. v. Costle, 666 F.2d 30,

33 (2d Cir. 1981) (noting that EPA is the agency in which

"Congress has vested administrative authority" over the

"technically complex area of environmental law").

Second, federal agencies have long been expected to

be cognizant of, and act consistently with, the foreign policy

of the US in regard to environmental issues. For example,

the National Environmental Policy Act ("NEPA") states:

The Congress authorizes and directs that, to

the fullest extent possible: .. . (2) all agencies

of the Federal Government shall . . . (F)

recognize the worldwide and long-range

character of environmental problems and,

where consistent with the foreign policy of

the United States, lend appropriate support to

initiatives, resolutions, and programs... ."

42 U.S.C. § 4332(2)(F); see also 44 Fed. Reg. 1,957 (Jan. 9,

1979) (Sec. 2-4(c) of Executive Order 12114 confirms that

federal agencies are not prevented from using additional

measures "to further the purpose of the [NEPA] and other

environmental laws . . . consistent with the foreign and

national security policies of the United States.").

Due to the transnational nature of CO2 emissions, the

US domestic and foreign policy regarding GHG emissions

must be consistent for either to be effective. As described

further below in Sec. I, current US policies are rooted in a

7

number of scientific, geographic and historical facts and

principles.

A. CO2 is Evenly Concentrated in the

Atmosphere Around the World.

Unlike most other emissions, which if traced to and

abated at the source can result in measurably reduced

concentrations in the ambient air over a defined geographic

area, GHG emissions from all sources in all nations

contribute to an undifferentiated worldwide concentration in

the upper atmosphere. See 68 Fed. Reg. 52,922, 52,927

(Sept. 8, 2003); see also ThomasR. Karl& KevinE.

Trenberth, Modern Global Climate Change, 302 Science

1719 (Dec. 5, 2003). Therefore, the potential benefit of

GHG emission reductions-made in the US can be thwarted

when emitters in other nations increase or refuse to reduce

their emissions.

B. Participation by Developing Nations is

Essential to Meaningful Resolution.

As former Secretary Albright recognized:

Industrialized countries must take the lead in

reducing greenhouse gas emissions. But the

problem cannot be brought under control

without the participation of all countries.°

The developing world is currently undertaking an

intensive expansion of energy infrastructure, and escalating

transportation, industrial and commercial expansion to meet

® Madeleine K. Albright, Secretary of State, U.S. Dept. of State,

Opening Remarks at the Asian Post Ministerial Conference 10+1

Meeting (July 2000), available at bttp://www.aseansec.org/3899.htm.

the demands of growing domestic and international markets.’

Building the infrastructure of the developing world and then

supplying its needs are energy-intensive activities that will

cause rapid growth in CO2 emissions.*

Developing regions are projected to contribute over

75% of worldwide CO2 emissions increases from 2003 to

2030.” By the early 2020s, the developing nations' combined

emissions will exceed the developed nations’ combined

emissions." Therefore, if the declared goal of the

international community to stabilize atmospheric GHG

concentrations is to be realized, developing nations must also

commit to reducing and controlling emissions.'' Without the

cooperation of developing nations, little or no environmental

benefit will accrue to the US as a whole, or to any US state

or region, due to domestic reductions from US emitters.

Nations have worked within a treaty framework

toward the goal of reducing global concentrations of GHGs

since 1992. The UNFCCC established a framework for

nations to determine how to accomplish the "aim" of

stabilizing worldwide atmospheric GHG concentrations.

UNFCCC, May 9, 1992, 1771 U.N.T.S. 107.

” Energy Information Administration, U.S. Dept. of Energy,

International Energy Outlook 2006, 1-5 (Sune 2006).

Id.

* Jd. at 93. According to Table A10, world carbon dioxide

emissions are projected to increase by 18,648 million metric tons from

2003 to 2030, with non-OECD regions increasing emissions by 14,302

million metric tons during that period. /d.

'© Organization for Economic Co-Operation and Development,

World Energy Outlook 2005 Middle East and North Africa Insights, 92

(2005).

"' See T. Wigley, et al., Economic and Environmental Choices

in the Stabilization of Atmospheric CO; Concentrations, 379 Nature 240

(Jan. 18, 1996).

9

Based on our experience as observers at the

UNFCCC Conferences of the Parties ("COPs"), we have

learned that developing nations are reluctant to adopt

mandatory carbon reductions. This fact necessitates a US

foreign policy with respect to carbon emissions that

preserves domestic options in order to maximize leverage

against recalcitrant negotiating partners.'? As explained by

the Secretariat of the Convention:

The fundamental issue that divided developed

and developing countries was whether the

implementation of the Article''*) should be

interpreted as opening up a discussion on

commitments for [developing] Parties.

UNFCCC, Issues in the Negotiation Process - Second

Review of Adequacy of Article 4.2(A) and (B) of the FCCC

(May 5, 2003), http://unfecc.int/cop7/secreview html.

With developing nations unwilling to commit to

control their emissions, then-Undersecretary of State for

Economic, Business and Agricultural Affairs Stuart Eizenstat

asserted the position that:

We will put on a full-court diplomatic press to

bring developing nations into a meaningful

role in helping solve the global climate

" UNFCCC, COP, Provisional Agenda and Annotations, 2 n.2,

U.N. Doc FCCC/CP/2004/1 (Sept. 15, 2004), http://unfecc.invresource

eS Oe ns ne ee ee

U.N. Doc. FCCC/CP/1995/7/Add.1 (June6, 1995),

suniteninaninthentittea lads The COP is the supreme body of the

Convention and includes all of the states that have ratified or acceded to

the Convention, which identifies developed nations as "Annex I" and

ing Countries as “Annex II.”

" The “Article” refers to Article 4.2(d) that provides for a

second review of the adequacy of Article 4.2(a) and (b), which include

the principle reduction commitments of Annex I Parties.

10

challenge. We will accept nothing less, nor

would we expect the US Senate to do so. As

the President has indicated, the United States

should not assume binding obligations under

the [Kyoto] [P]rotocol until key developing

countries meaningfully participate in meeting

the challenge of climate change.

Excerpts of Remarks Before the Senate Committee on

Foreign Relations (Feb. 11, 1998).

In 2000, then-Under Secretary of State for Global

Affairs Frank Loy, again made clear that:

Acting alone. . . developed countries cannot

concentrations. From a scientific standpoint,

meaningful participation by key developing

countries is a necessity. Several large

developing countries will soon become the

world’s leading emitters.

Remarks to the American Bar Association Conference

(July 20, 2000).

Cc, CO2 Reductions Will Require Reduced

Energy Use And Productivity in the US.

At present, there are no economically feasible or

commercially viable technologies to reduce CO2 emissions

from fossil fuel-burning stationary sources." According to

the US Department of Energy, the US presently depends on

fossil fuels for 85% of its energy supply. See Energy

Information Administration, U.S. Dept. of Energy, Annual

Parties may disagree on the economic feasibility of CO2

reductions, but what is incontestable is that the issue raises national

1]

Energy Review 2004 (Aug. 2005), at 37. The federal

government has been engaged for years in developing

technologies to increase energy efficiency and increasing the

supply of fuel sources with lower carbon content such as

natural gas, and has taken other actions to reduce the nation’s

dependence on fossil fuels and thereby decrease CO2

emissions. See generally, Pew Center on Global Climate

Change, Climate Change Activities in the United States

(2004) (summarizing federal policies on fuel efficiency and

renewable energy). In fiscal year 2005, Congress provided

$5.2 billion in budget authority and tax incentives related to

climate change, including programs to increase energy

efficiency, renewable energy and alternative energy sources.

Office of Management and Budget, Federal Climate Change

Expenditures Report to Congress, at 3 (March 2005). For

fiscal year 2006, the President’s budget proposed

expenditures of $5.5 billion for climate change activities. Id.

With decades of sizable federal and private-sector

investment in developing mechanisms—such as greater fuel

efficiency, lower-carbon fuels, and renewable energy—to

provide economically feasible alternatives to fossil fuel

combustion, only 6% of the nation’s energy is derived from

renewable or alternative sources. Energy Information

Administration, U.S. Dept. of Energy, Annual Energy

Review 2004 (Aug. 2005), at 7. Until these mechanisms are

developed into more reliable providers of greater amounts of

energy, they are not viable alternatives to most energy-

dependent sectors of the economy. Ultimately, reducing the

amount of fuel burned——and therefore energy produced—

is the only available option for most US sources to reduce

CO2 emissions.’

'> This explains why the actual losses to gross domestic product

were projected to be between $102 billion and $437 billion in 2010 for

reducing greenhouse gas emissions to levels proposed by the Kyoto

12

Worldwide emissions data also demonstrate that the

challenge to reduce emissions while allowing for economic

growth is shared worldwide. For example, despite

mandatory reductions required of all EU members, only two

of 15 member States (the United Kingdom and Sweden) are

on track to meet their Kyoto emission reductions. Press

Release, Institute for Public Policy Research, Two Thirds of

the EU Countries Set to Miss Kyoto Commitments (Dec. 27,

2005), http://www.ippr.org.uk/pressreleases/?id=1863 (citing

and reproducing data from the European Environment

Agency).

Il. THE US HAS A DEFINITIVE FOREIGN

POLICY REGARDING CARBON EMISSIONS

ESTABLISHED BY THE PRESIDENT AND

SUPPORTED BY THE US SENATE.

For over a decade and multiple administrations, the

President, Congress and the federal agencies have set forth—

and adhered to—a definitive, established US foreign policy

regarding GHG emissions. The US foreign policy has been

to participate among nations within the UNFCCC, while

raising two core concerns: preserving the health of the US

economy and insisting on developing nation commitments.

The US has calibrated its foreign policy to best

account for the complexities of the multinational climate

change issue. The Executive Branch has positioned the US

vis-a-vis other nations of the world to preserve US

negotiating power while continuing to seek effective,

balanced approaches to the environmental concerns of global

climate change.

Protocol (i.c., 7% below 1990 emissions during 2008-2012). Energy

Information Administration, U.S. Dept. of Energy, What Does the Kyoto

Protocol Mean to U.S. Energy Markets and the U.S. Economy? (Oct.

1998).

13

In 1992, the US signed the UNFCCC, joining 153

other nations in agreeing to work toward the goal of

stabilizing worldwide GHG concentrations. The Senate

ratified the UNFCCC, committing the US to contribute to

achieving that goal. 138 Cong. Rec. 17,150, 17,156 (Oct. 7,

1992). Many developing nations also signed the

Convention, yet from the outset, the extent of their obligation

to achieve the UNFCCC goals has been unsettled.

Developing nations understood that existing technology

would not permit them to expand their economies and reduce

their energy consumption and GHG emissions, and they have

not committed to emission reductions." See JohnR.

Justus & Susan R. Fletcher, Congressional Research Service,

Resources, Science, and Industry Division, Global Climate

Change, CRS IB89005, at 7 (Sept. 7, 2005).

A. The President, as Leader of the Executive

Branch, Provided Clear Direction

Regarding US Foreign Policy on Carbon

Emissions.

In 1992, when signing the UNFCCC Ratification

Instrument, President George H.W. Bush signaled his

concern with the economic issues raised by committing to

the Convention goals: “the United States will continue to

lead the world in taking economically sensible actions to

reduce the threat of climate change." President's Statement

'® Energy consumption and CO2 emissions are related in direct

proportion because CO2 is an inescapable natural byproduct of fossil fuel

combustion. Absent sequestration of the CO2 emissions, to reduce CO2

emissions, one must reduce fossil fuel consumption, either by decreasing

the amount of energy combusted or increasing the efficiency with which

energy is utilized. Simply put, to reduce CO2 emissions, one must

reduce outputs and productivity. Unlike other emissions, which

generally can be controlled by the addition of emission contro! devices,

CO2 emissions reflect the amount of fossil fuel utilized to produce

energy.

14

on Signing the Instrument of Ratification for the UNFCCC,

2 Pub. Papers 1818 (Oct. 13, 1992).

In 1997, President Clinton signed the Kyoto Protocol.

_ However, the President highlighted the US's concern with

the lack of developing nation commitments and made clear

the position that:

The United States will not assume binding

obligations unless key developing nations

meaningfully participate in this effort... . If

the entire industrialized world reduces

emissions over the next several decades but

emissions from the developing world continue

to grow at their current pace, concentrations

of greenhouse gases in the atmosphere will

continue to climb. -

President’s Remarks at the National Geographic Society, 2

Pub. Papers 1408, 1410 (Oct. 22, 1997). In the end,

President Clinton did not seek Senate ratification of the

binding emissions reductions of the Kyoto Protocol.

In 2001, President George W. Bush reaffirmed that

the US would continue that same foreign policy: -

I oppose the Kyoto Protocol because it

exempts 80 percent of the world, including

major population centers such as China and

India, from compliance, and would cause

serious harm to the U.S. economy.

Letter from President George W. Bush to U.S. Senators

(Mar. 13, 2001).

The US has used its bargaining power to positive

effect internationally. The US has concluded binational

agreements to work toward UNFCCC goals with nineteen

nations and the European Union, which account for 70% of

15

global GHG emissions. U.S. Dept. of State, U.S. Climate

Change Policy (Nov. 19, 2004); See White House,

Addressing Global oe Change,

Oct. 23, 2006). Son with the mtieal intransigence of

developing nations to commit to emission limits, three major

developing nations (China, India and South Korea) have

joined a US-led Asia-Pacific Partnership to develop emission

reduction strategies through appropriate transfer of

technology. See The Asia-Pacific Partnership on Clean

Development and Climate, U.S. Dept. of State, Work Plan

for the Asia-Pacific Partnership on Clean Development and

Climate (Jan. 12, 2006).

Consistent with its foreign policy positioning, the US

is making progress in reducing domestic source emissions

through federally-encouraged nonregulatory approaches.

The Executive Branch is working toward a goal to reduce the

rate of domestic emissions by 18% by 2012 and is seeking

voluntary commitments by US GHG emitters to reduce

emissions to meet the goal.’’ See White House, Addressing

Global Climate Change, // / -

change.html (last visited Oct. 23, 2006). The largest public

corporate greenhouse gas goal-setting program, the EPA's

Climate Leaders partnership, represents a broad range of

"” Under the UNFCCC, ratified by the Senate, developed nations

committed to limit GHG emissions while “taking into account. . . the

need to maintain strong and sustainable economic growth. . . .” UNFCCC

An. 4.2(a) (1992), at 7,

17,150, 17,156 (Oct. 7, 1992). Given these countervailing

considerations, the US has set domestic reduction goals that account for

economic growth based on emission rates, i.c., emissions per unit of

output. The Kyoto Protocol, not ratified by the Senate, calls for actual

emission reductions, which may not account for growing populations or

economies.

16

industry sectors from manufacturing to retail, small business

to multinationals, and more than $1 trillion in US revenues.

Press Release, EPA, Companies Set Aggressive Greenhouse

Gas Reduction Goals (Oct. 12, 2006),

http://yosemite.epa.gov/opa/admpress.nsf/

a8 9 / e68

257 ! t. mo in 2002,

Climate Leaders is a key strategy for encouraging

organizations to help meet President Bush's goal. Jd.

Currently, one hundred partners participate in the

Climate Leaders partnership program, 2nd 59 of the partners

have set emission reduction goals, which account for more

than eight percent of total US GHG emissions'® per year.

See EPA, Climate Leaders: Partners Web Page,

http://www.epa.gov/stateply/partners/index.html] (last visited

Oct. 23, 2006); Press Release, EPA, Companies Set

Aggressive Greenhouse Gas Reduction Goals (Oct. 12,

2006), http://yosemite.epa.gov/opa/ s f9

381d3968525701c005e65b5/abaf76a3 1 c93d2e68525720500

6305cb!OpenDocument. The other Climate Leaders partners

are in the process of setting reduction goals. In 2005, five

major companies reduced their actual GHG emissions by

10-23%.'? EPA estimates that GHG reductions by Climate

Leaders partners will prevent over 10 million metric tons of

carbon equivalents a year. EPA, Climate Leaders: Partners

Web Page, http://www.epa.gov/stateply/partners/index.html

(last visited Oct. 23, 2006).

'® GHG reductions are measured in “carbon equivalents,” CO2

having been adopted as a uniform standard of measurement for GHG

emissions gencrally.

EPA, GHG Reduction Goal Achievers,

bttp://www.epa.gov/climateleaders/partners/goalachievers. html (last

visited Oct. 23, 2006).

17

Simply put, the President's non-regulatory, market-

based approach to domestic GHG emissions reductions is

effectively pushing corporations and financial institutions to

focus on implementing climate-related strategies and

investing in green technology without jeopardizing the

President's foreign policy.

B. Congress' Actions Reinforce the

President's Foreign Policy on Carbon

Emissions.

While the Senate ratified the UNFCCC, every time it

has considered whether sources should be required to reduce

GHG emissions either through a treaty or domestic

legislation, it has voted against taking that step.

Under the treaty clause of the US Constitution,

Article II Section 2, the President is granted the power to

"make Treaties," "by and with the Advice and Consent of the

Senate... .” In 1997, the Senate strongly asserted its

"Advice" pursuant to Article II, Section 2 of the US

Constitution, when it unanimously adopted Senate

Resolution 98, S. Res. 98, 105 Cong. Rec. $8113-8139, 8138

(daily ed. July 25, 1997) ("Byrd-Hagel Resolution")

(sponsored by Sen. RobertC. Byrd). The Byrd-Hagel

Resolution resolved that the President should not commit the

US to the Kyoto Protocol binding emission reductions, and

stated that the Senate would not approve any agreement on

binding reductions in GHGs that did not include

commitments by developing countries as well as

industrialized countries, or that would result in harm to the

US economy.”

*° Interestingly, the Byrd-Hagel Resolution also required that

“any such protocol or other agreement which would require the advice

and consent of the Senate to ratification should be accompanied by a

detailed explanation of any legislation or regulatory actions that may be

18

Both Houses of Congress subsequently adopted

successive appropriations and authorization bills prohibiting

the expenditure of funds for implementation of the Kyoto

Protocol. See, e.g., H.R. 3194, 106th Cong. (1999) (enacted

as District of Columbia Appropriations Act for FY 2000,

Pub. L. No. 106-113, 113 Stat. 1501 (1999)); H.R. 4475,

106th Cong. § 346 (2000) (enacted as Department of

Transportation Appropriations Act for FY 2001, Pub. L. No.

106-346, § 346, 114 Stat. 1356 (2000)); H.R. 4811, 106th

Cong. § 577 (2000) (enacted as Foreign Operations, Export

Financing, and Related Programs Appropriations Act for FY

2001, Pub. L. No. 106-429, § 577, 114 Stat. 1900 (2000));

H.R. 1646, 106th Cong. § 113 (2002) (enacted as Foreign

Relations Authorization Act for FY 2003, Pub. L. No.-107-

228, §113, 116 Stat. 1350 (2002)).

Mindful of the current efforts to engage the GHG

issue on a multilateral level, Congress has consistently

rejected domestic legislation mandating GHG reductions.

See, e.g., S. 1224, 101" Cong. (1989); H.R. 5966, 101st

Cong. (1990). The Senate also voted 43 to 55 against a bill

that would have required reductions in 2003. Climate

Stewardship Act of 2003, S. 139, 108th Cong. (2003) (co-

sponsored by Sens. McCain and Lieberman). Two years

later, the Senate voted against required reductions by a wider

margin of 38 to 60. Climate Stewardship Act of 2005,

S. Amdt. 826, 109th Cong. (2005) (offered as an amendment

by Sens. McCain and Lieberman on June 21, 2005 to the

Energy Policy Act of 2005, H.R. 6, 109th Cong. (2005)).

In multiple statutory provisions adopted between

1978 and 1990 addressing climate change, Congress has

required to implement the protocol or other agreement and should also be

accompanied by an analysis of the detailed financial costs and other

impacts on the economy of the United States which would be incurred by

the implementation of the protocol or other agreement." S. Res. 98.

eS

19

done many things but has never mandated domestic

reductions. Congress has consistently funded research and

technology development, directed executive agencies to find

nonregulatory ways to reduce emissions, and required

monitoring of emissions. See, e.g., National Climate

Program Act of 1978, 15 U.S.C. § 2901 et seq. (establishing

national program to study global climate change); Energy

Policy Act H.R. 6, § 1605(b), 109th Cong. (2005); 42 U.S.C.

§ 13,385 (1992) (establishing a voluntary GHG emissions

reporting program); uncodified CAA §821, 1990

Amendments to the Clean Air Act, Pub. L. No. 101-549, §

821(a), 104 Stat. 2399, 2699 (1990) (requiring regulated

power producers to monitor CO2 emissions); CAA § 103(g),

42 U.S.C. § 7403 (2000) (directing EPA to conduct research

and develop nonregulatory approaches to reduce emissions).

Congress has continued supporting this type of legislation.

Under the Energy Policy Act of 2005, Congress addressed

GHG issues, in part, by establishing a committee to study

and integrate GHG intensity reducing technology strategies,

and requiring the State Department to report on further

integrating into US foreign policy the goal of reducing

greenhouse gas intensity in developing countries. Energy

Policy Act of 2005, Pub. L. No. 109-58 § 1601, 119 Stat.

594 (2005), codified at 42 U.S.C. § 15,801.

In a recent action, the Senate reaffirmed its

concurrence with the President's foreign policy. The Senate

voted to include a Sense of the Senate resolution—which

was not included in the final legislation—stating the

principle that:

Congress should enact a comprehensive and

effective national program of mandatory

market-based limits and incentives on

greenhouse gases that slow, stop and reverse

the growth of such emissions at a rate and in a

manner that — (1) will not significantly harm

20

the United States economy; and (2) will

encourage comparable action by other nations

that are major trading partners and key

contributors to global emissions.

S. Amdt. 817 to H.R. 6, 109th Cong. (2005) (agreed to by

Senate by a vote of 66 to 29 on June 21, 2006); H.R. 6, 109th

Cong., § 1612 (agreed to by the Senate on June 28, 2005)

(H.R. 6 enacted as Energy Policy Act of 2005, Pub. L. No.

109-58, 119 Stat. 1109). This was the first Sense of the

Senate resolution on climate change since the Byrd-Hagel

Resolution in 1997. As demonstrated by its actions,

Congress has deliberately avoided undermining the US

international position on carbon emissions.

Iii. EPA PLAYS AN INTEGRAL ROLE IN US

FOREIGN POLICY REGARDING CARBON

EMISSIONS.

A. EPA is Part of a Unitary Executive Branch

Implementing the President's Policies and

Congressional Directives.

This Court has long recognized that the President is

the sole organ of foreign policy. United States v. Curtiss-

Wright Exp. Corp., 299 U.S. 304, 320-21 (1936). EPA—an

Executive Branch agency—is “one in the same" as the

President, because it is charged with executing the

President's policy, including foreign policy, as well as the

directives issued by Congress. Furthermore, the notion that

one federal agency should make critical decisions without

taking notice of how those decisions affect the operations of

another federal agency is inconsistent with basic practices of

the Executive Branch.

The level of coordination within the Executive

Branch is illustrated by the role of the Office of Management

and Budget ("OMB"), which is charged with ensuring that

21

presidential policies are executed in a uniform manner across

all Executive Branch agencies. OMB describes its mission

in the following manner: _

OMB's predominant mission is to assist the

President in overseeing the preparation of the

federal budget and to supervise its

administration in Executive Branch agencies.

In addition, OMB oversees and

coordinates the Administration's procurement,

financial management, information, and

regulatory policies.

See White House, OMB Mission,

http://www.whitehouse.gov/omb/organization/role.html] (last

visited Oct. 23, 2006) (emphasis added). Thus, EPA cannot

disregard the President's goals and does not act within a

vacuum, but must act in accord with the President's policies

and mindful of the positions taken by other federal agencies.

B. In the Unitary Form of Government, EPA

Plays a Critical Role in the Formation and

Implementation of Environmental Policy —

Foreign and Domestic.

Since the inception of EPA, its role in international

environmental issues touching on foreign policy has been

self-evident. The principal roles and functions of EPA

would include the establishment and enforcement of

environmental protection standards consistent with national

environmental goals, without limiting EPA to domestic

policy only. EPA, Reorganization Plan No. 3 of 1970 (July

9, 1970). Furthermore, EPA Order 1110.2, which

established the initial organization of EPA, called for the

establishment of a Director for International Affairs. The role

of this director was to be the principal adviser to EPA's

Administrator in regard to international programs and

activities of the Agency, coordinate and provide services and

22

advice on international programs to all of the organizational

elements of the Agency, and serve as the Administrator's

principal representative with other agencies in regard to

international functions of the Agency. EPA, Order 1110.2 at

4(d) (Dec. 4, 1970).

Reinforcing the truth of former Secretary Albright's

proclamation that environmental issues are part of today's

foreign policy, EPA maintains an Office of International

Affairs ("OIA"), which leads EPA’s efforts to address global

environmental issues. Headed by a Presidentially-appointed

and Senate-confirmed Assistant Administrator, OIA's staff is

a diverse and highly educated group of professionals with

extensive international experience. OJA staff includes

individuals with past service in the State Department, United

Nations, and other international organizations.

The current Assistant Administrator heading OIA,

Judith Ayres, at her confirmation noted that:

As a nation, we have learned that solving

global environmental problems related to the

atmosphere, the oceans, and the earth's

biological wealth requires concentrated

international efforts. For the International

Office at EPA, environmental gain is sought

in the international arena outside our country's

boundaries through the Agency's

collaboration with the Congress, other federal

agencies, scientists, the financial and business

communities, NGOs, and philanthropic

leaders. -

Judith E. Ayres, Assistant Administrator, OIA, EPA,

Statement Before the Senate Committee on Environment and

Public Works (July 25, 2001).

23

Cc. EPA Has Played a Historic and

Substantive Role on Carbon Emissions at

the Global Level.

EPA has taken a substantive role in furthering US

foreign policy through participation in major international

environmenta! initiatives on global climate change. It was

the EPA Administrator who led the US Delegation to the

"Earth Summit" in 1992 that resulted in the UNFCCC. See

USDA, The United Nations World Summit on Sustainable

Development, // www v/ inabl

background.htm (last visited Oct. 23, 2006). As noted

above, OIA works with UNEP, which serves as the focal

point for environmental issues within the United Nations and

acts as the Secretariat for many multilateral environmental

agreements, including the Montreal Protocol on Substances

that Deplete the Ozone Layer and the Basel Convention on

the Trans-boundary Movement of Hazardous Waste. EPA's

OIA coordinates the agency's activities in connection with

UNEP and its Governing Council, the 30-nation body

providing oversight and guidance to the organization.

Judith Ayres not only attended as a member of the

US Delegation to the Tenth Session of the COP in Buenos

Aires, but she also addressed the Convention. Tenth Session

of the Conference of the Parties to the UN Framework

Convention on Climate Change, Buenos Aires, Argentina,

December 16, 2004,

‘// .Zov/ ri 9925. and

‘// . v/ s/ 004/39910.

The United States Initiative on Joint Implementation,

created by President Clinton, was co-chaired by EPA. U.S.

Dept. of State, Fact Sheet (June 9, 1995). The Initiative on

Joint Implementation was described by the State Department

as assisting "in the development of international criteria for

the partnership projects needed to reduce worldwide

greenhouse gas emissions.” /d. (emphasis added).

=

24

The Asia-Pacific Partnership on Clean Development

and the Climate (the "Asia-Pacific Partnership") is another

example where EPA represents the Executive Branch in an

international collaboration in effectuating the President's

foreign policy regarding global climate change issues. EPA

was also a member of the delegation to the Third Meeting of

the Bilateral Climate Change Working Group between the

US and Mexico held on August 24, 2006, and to the Fourth

Meeting under the US/New Zealand Bilateral Climate

Change Partnership held on August 29-30, 2006.

IV. EPA SHOULD NOT BE PRECLUDED FROM

CONSIDERING US FOREIGN POLICY

REGARDING CARBON EMISSIONS WHEN

ACTING ON THE SECTION 202 PETITION.

An argument has been advanced in this case that

EPA, an executive agency, should not consider foreign

policy when interpreting CAA § 202 of the CAA. See Brief

of Amicus Curiae Albright at 2. In the context of global

climate change, however, the issues potentially addressed

and the policies potentially advanced in deciding upon

Petitioners’ petition under CAA § 202(a)(1) are inextricably

intertwined with the foreign policy of the US. And, as

illustrated above, EPA has played a prominent role in the

global climate change debate for decades. EPA should not

be expected to turn a blind eye to foreign policy obligations

clearly articulated by the US federal government.

A. EPA's Consideration of US Foreign Policy

on Carbon Emissions is Entitled to

Chevron Deference.

Courts reviewing agency decisions based on the

agency’s interpretation of a statute entrusted to its care apply

a two-part test. Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984). The court first asks

whether Congress has spoken directly to the issue. If the

25

answer is “yes,” then the matter is ended and the court gives

effect to Congress’ intent. Jd. at 842. However, if

Congressional intent is unclear, or if there is no discernable

Congressional intent, the court asks whether the agency’s

interpretation of the statute is a permissible construction of

the statute. Jd. at 843.

Under CAA § 202(a)(1), EPA's "judgment" addresses

whether motor vehicles emitting greenhouse gases can

“cause or contribute to air pollution which may reasonably

be anticipated to endanger public health or welfare." No

policy considerations are expressly laid out in § 202 of the

CAA for EPA's deliberation, leaving no discernable

Congressional intent for EPA's interpretation. The statute

does not address the scope of EPA's deliberations—let alone

direct EPA to consider only domestic policy and ignore its

knowledge of foreign policy—in addressing petitions filed

under § 202, even though Congress and EPA well know the

"global" implications of climate change decisions.

Moreover, as noted above, Congress has repeatedly

decided to support additional research, collaboration and

voluntary reductions in the carbon emissions realm, and

rejected legislation that would impose mandatory GHG

reductions. EPA's decision on the underlying petition is

consistent with these legislative efforts and the caution raised

by this Court when regulating in an area that involves

unusually significant political issues. See FDA v. Brown and

Williamson Tobacco Corp., 529 U.S. 120 (2000) (cautioning

that the Court "must be guided . . . by common sense as to

the manner in which Congress is likely to delegate a policy

decision of such economic and political magnitude to an

administrative agency").

26

B. EPA's Consideration of US Foreign Policy

Regarding Carbon Emissions is Consistent

with the Unitary Executive Principle.

The power to execute the nation’s foreign affairs is

expressly vested in the Executive and Legislative Branches.

The President enjoys considerable inherent executive power

to "make Treaties." U.S. Const. art. II, § 2, cl. 2. As noted

above, Congress also has a share in foreign powers related to

advice and consent in ratifying treaties. U.S. Const. art. I

§ 8, cls. 1, 3, 11-14; U.S. Const. art. Il, § 2, cl. 2. This Court

has historically and recently “acknowledged that the

‘nuances’ of ‘the foreign policy of the United States . . . are

much more the province of the Executive Branch and

Congress than of this Court." Crosby v. Nat'l Foreign Trade

Council, 530 U.S. 363, 386 (2000) (quoting Container Corp.

of Am. v. Franchise Tax Bd., 463 U.S. 159, 194 (1983), and

Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 327

(1994)).

It is axiomatic that executive agencies like EPA carry

out the policies of the President and are obligated to act in a

manner that is consistent with the President's foreign policy

objectives. Indeed, if the EPA acted in any other manner, it

would undermine the President's efforts to craft a unified,

comprehensive foreign policy. See United States v. Curtiss-

Wright Exp. Corp., 299 U.S. 304, 320-21 (1936) (finding the

Executive is "the sole organ of the federal government in the

field of international relations").

If Petitioners were to succeed in using their

underlying petition to force unilateral reductions in the US,

without regard to foreign policy, the US would lose an

important source of foreign policy leverage; namely, the

ability to insist on commitments by other nations as a

precondition for its own GHG reductions. See Crosby, 530

U.S. at 376 (finding that forbearance from domestic action

constitutes foreign policy because without such forbearance

27

"the President has less to offer and less economic and

diplomatic leverage as a consequence"). Petitioners here

seek to use this forum to compel EPA action that directly

contradicts existing national policy.2’ Such interference

In confronting such divergent courses of action in a case

involving whether a California state law was preempted by US foreign

policy, the Supreme Court concluded:

The basic fact is that California seeks to use an iron fist

where the President has consistently chosen kid gloves.

We have heard powerful arguments that the iron fist

would work better, and it may be that . . . the iron fist

would be the preferable policy. But our thoughts on

the efficacy of the one approach versus the other are

beside the point, since our business is not to judge the

wisdom of the National Government's policy;

dissatisfaction should be addressed to the President or,

perhaps, Congress. The question relevant to

preemption in this case is conflict, and the evidence

here is "more than sufficient to demonstrate that the

[California insurance law] stands in the way of [the

President's] diplomatic objectives."

American Ins. Ass'n v. Garamendi 539 U.S. 396, 427 (2003) (citing

Crosby, 530 U.S. at 386). While reasonable minds may differ on the

appropniate direction of US climate change policy, until and unless the

Legislative Branch and the President change course, states and private

partics should not be permitted to utilize a rulemaking petition to

circumvent America's longstanding foreign policy by asserting that an

Executive Branch agency is precluded from considering foreign policy.

In another case concerning state law preemption due to a

conflict with foreign policy, Congress had passed a law directing the

President to proceed diplomatically in developing a “comprehensive,

multilateral strategy to bring democracy to and improve human rights

practices and the quality of life in Burma.” Crosby, 530 U.S. at 369.

Massachusetts, one of the Petitioners in the instant case, had adopted its

own law forbidding state agencies from contracting with companies tied

to Burma. This Court found that the Massachusetts statute obstructed the

national foreign policy on various levels. Relevant in Crosby was the

Court’s concern that the state law interfered with the President's ability

28

to effectuate foreign policy goals through two specific channels of

influence: the use of congressionally delegated authority to strategically

utilize economic sanctions, and the ability to develop a comprehensive,

multilateral strategy among nations. Crosby, 530-U.S. at 376.

Most recently and more on point, in another suit brought by

Petitioner Massachusetts, various states sought relief from five US

emitters of CO2 on the common law theory of nuisance. Judge Preska of

the Southern District of New York dismissed the suit on the grounds that

the private common law action “presented non-justiciable political

questions that are consigned to the political branches." Connecticut v.

Am. Electric Power Co., Inc., 40 F. Supp. 2d 265, 274 (S.D.N.Y. 2005).

Specifically, the Court held that: "The explicit statements of Congress

and the Executive on the issue of global climate change in general and

their specific refusal to impose the limits on carbon dioxide emissions

Plaintiffs now seek to impose by judicial fiat confirm that making the

“initial policy determination|s}" addressing global climate change is an

undertaking for the political branches. . . . . Indeed, the questions here

“uniquely demand single-voiced statement of the Government's views."

Id. (quoting Baker v. Carr, 369 U.S. 186, 212 (1962)). UJAE filed an

amicus cunae brief in Connecticut v. AEP, which supported the dismissal

of the complaint as impermissibly interfering with foreign policy, in that

action. The case is currently on appeal before Court of Appeals for the

Second Circuit; oral argument was held on June 7, 2006. See

Connecticut v. Am. Electric Power Co., Inc., 40 F. Supp. 2d 265, appeal

docketed, No, 05-5104-cv (2d Cir. Sept. 22, 2005). On appeal, UJAE

filed an amicus curiae brief supporting affirmance of the dismissal.

in the present case, Congress has spoken with no less force and

clarity then it did in the matter decided in Crosby. Here, Congress has

imposed two significant conditions on the adoption of mandatory CO2

reductions by the nation, which are participation of developing countries

and measures that will not materially harm the US economy. Those

conditions provide the President with a sizeable amount of “coercive

power” to implement foreign policy. Because the US is presently the

world’s largest emitter of GHGs, in the currency of Kyoto, the US has

the greatest ability to cajole developing nations into agreeing to emission

As discussed in Section I.B. above, developing nations have

thus far acted in a block to prevent resolution of that fundamental matter.

The US retains leverage on this issue only insofar as Kyoto-like emission

reductions are not unilaterally imposed on US sources. “(T]he

President's maximum power to persuade rests on his capacity to bargain

29

would come at a particularly sensitive time internationally.

UNFCCC parties have not yet resolved the pivotal issues of

whether, when and how developing nations will be bound to

emissions limitations. UNFCCC, Provisional Agenda and

Annotations, U.N. Doc. FCCC/CP/2004/1, p 2, n. 2, U.N.

FCCC, Sept. 15, 2004.

Interference with the prosecution of foreign policy

undermines the core principle of separation of powers. Such

interference should also be avoided as a matter of statutory

interpretation, as this Court has long held:

In examining the statute in order to determine

its constitutionality we must be guided by the

well-settled rule that every intendment is in

favor of its validity. It must be presumed to

be constitutional, unless its repugnancy to ) he

Constitution clearly appears.

for the benefits of access to the entire national economy without

exception for enclaves fenced off willy-nilly by inconsistent political

tactics.” Crosby, 530 U.S. at 379-80.

As in Crosby, Congress has specifically instructed the President

to calibrate our national approach to carbon emissions limitations based

upon the ability of the US government to exact corollary concessions

from developing nations. The Senate, by unani 10us vote, instructed that

the Executive "should not be a signatory to any protocol" that would

"mandate new commitments to limit or reduce greenhouse gas

emissions...unless the protocol or other agreement also mandates new

specific scheduled commitments to limit or reduce greenhouse gas

emissions for Developing County Parties within the same compliance

period." Byrd-Hagel Resolution, S. Res. 98, 105 Cong. Rec. $8113-8139

(daily ed. July 25, 1997). The relief sought by Petitioners contravenes

this explicit instruction by Congress to the President by forcing the very

sorts of unilateral emission reductions the Congress expected to be held

in abeyance until and unless negotiations produce like-kind reductions

from the developing world.

30

Buttfield v. Stranahan, 192 U.S. 470, 492 (1904); see also

U.S. v. Rumley, 345 U.S. 41 (1953). As a "corollary of the

presumption favoring .constitutionality, the fact that one

among alternative constructions would involve serious

constitutional difficulties is reason to reject that

interpretation in favor of another." Norman J. Singer,

Statutes and Statutory Construction, § 45:11 (6th ed. 2000)

(citing U.S. v. Clark, 445 U.S. 23 (1980)).

If the Petitioners succeed in their demands for the

CAA to be viewed as interposing a non-discretionary duty to

regulate GHGs, a constitutional issue (separation of powers)

would be presented because the President and Congress have

clearly stated that the US should not be forced to regulate

GHGs. By contrast, an interpretation that does not cause

conflict with US foreign policy—the position taken by

Respondent EPA—would be consistent with the Court's

holdings on appropriate statutory construction.

CONCLUSION

Amicus has been granted observer status in the

ongoing multilateral proceedings regarding the appropriate

approach to regulation of global GHGs. Amicus is also

keenly aware that should such regulations be adopted in a

unilateral fashion, the chances are great that American

working men and women will be severely and adversely

affected. These adverse impacts will be endured without

correlative environmental benefit because without effective

participation by developing countries, there is little chance

that any domestic policy will have the desired environmental

effect. Therefore, amicus respectfully submits that the Court

should reject any finding of a non-discretionary obligation

on the EPA to regulate GHGs in light of powerful

Constitutional and administrative considerations rooted in a

definitive US foreign policy.

Respectfully submitted,

Scott H. SEGAL*

JASON B, HUTT

SHELBY J. KELLEY

CHRISTOPHER STASZAK

BRACEWELL & GIULIANI LLP

2000 K Street, Suite 500

Washington, DC 20006-1872

Tel. (202) 828-5845

Fax (202) 857-2127

EUGENE M. TRISKO

GENERAL COUNSEL

UNION FOR JOBS AND THE

ENVIRONMENT

P.O. Box 47

Glenwood, MD 21738

Tel. (301) 639-5238

Fax. (304) 258-3927

*Counsel of Record