# Amicus Curiae Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A38

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A38. Public record. Not legal advice.