Amicus Curiae Brief — Massachusetts v. EPA

Lt 13 "tae

No. 05-1120

— ALC 31 9096

In The OFFICE OF THE CLERK

Supreme Court of the Gnited States

¢

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Petitioners,

v.

UNITED STATES 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 THE U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, AMERICAN PLANNING

ASSOCIATION, THE CITY OF SEATTLE, THE

CITY OF ALBUQUERQUE, THE CITY OF

BURLINGTON, AND THE CITY AND COUNTY

OF SAN FRANCISCO AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

+

TIMOTHY J. DOWLING*

DOUGLAS T. KENDALL

JENNIFER BRADLEY

MARGUERITE MCCONIHE

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Ave. NW

Suite 502

Washington, D.C. 20036

(202) 296-6889

*Counsel of Record

for the Amici Curiae

-—

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COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIBG..................sssscccssssseeeeeeees iii

INTEREST OF THE AMICI CURIAE ...............00000008 1

SUMMARY OF ARGUMENT ...................cccesesseeeeseeees 4

TE viciinddidtninttsipinntiticionniencessivmeseneniigteinnionntn 6

I. PRINCIPLES OF FEDERALISM AND RE-

SPECT FOR STATE AND LOCAL AUTHORITY

COMPEL ADHERENCE TO THE BROAD

PLAIN MEANING OF THE FEDERAL CLEAN

II. UNLESS OUR NATION TAKES ADEQUATE

STEPS TO CONTROL GREENHOUSE GASES

NOW, GLOBAL WARMING WILL CONTINUE

TO CAUSE DEVASTATING HARM TO LOCAL

COMMUNITIES ACROSS THE COUNTRY ....... 10

A. Local Officials Must Deal With Threats

To People And Infrastructure From

Flooding, Storm Surges, And Wildfires,

All Of Which Will Worsen Because Of

Ne NE i cicidicguitnssnasendiabincsipciebsignainn 13

B. Local Officials Must Deal With The Ef-

fects Of Deadly Heat Waves And Heat-

I tl 17

C. Local Officials Must Deal With Water

Scarcity And Water Pollution That Are

Exacerbated By Global Warming............. 20

III. DUE TO THE CONTINUING AND THREAT-

ENED INJURIES RESULTING FROM GLOBAL

WARMING, NEW YORK CITY AND BALTI-

MORE HAVE STANDING IN THIS CASE........... 23

TABLE OF CONTENTS - Continued

Page

A. Municipal Petitioners Have Shown In-

I Ricccnnpsttenicecshneannentauneessinienedatics 24

B. Municipal Petitioners Have Shown Cau-

sation and Redressability ........................ 25

Bec cccescnsscnecenedeteerentnanemusiccnteestorsoeesineonn 29

iii

TABLE OF AUTHORITIES

| Page

CASES:

Alaska Dep't of Envtl. Conservation v. EPA, 540

ey Bee ee cintisth cinitennciinaticcscniiisiniaieptanimncnindpebinndnniants 9

ASARCO Ince. v. Kadish, 490 U.S. 605 (1989).............:0008 27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .. 25, 27, 28

Rapanos v. United States, 126 S. Ct. 2208 (2006) ........ 6, 10

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26

i xivincinsincnideieneninnsiscbeincadecnniteeneieaiaseconainniinngeapeinaiiut 27

Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159 (2001).......... 6

STATUTES AND REGULATIONS:

Cal. Code Regs., tit. 13:

iy Sree csiechtnssnienatiptenpeuintnervsiciinasisitniiiacedtigstinaidantininnlepisnmiiitdiaplints 8

i TTT schnshsadicccinightecdiacnnsncidaindienaiestesiidiniiitipilaniarsiiniibebiadanibiighiibiiaiat 8

ie SEU Al citenasthvsineib dieepecandbnciahusnbiasdindunanadstneteannndiasdaatieiidaminiienddeniniadgipioniel 8

Clean Air Act, 42 U.S.C § 7401 et seq.:

ne. © Fane ieiiethaisihsiiedinadihinaninnvincicadictsientinuiniibabede 28

Ss Se Ces cshicduslncatininitnnrnindccinedenandvendndnnnimeiiieiadisinbidgn 8

Energy Policy and Conservation Act of 1975, 49

le SETI i siciciertetininsicchnnaetniisemiainineeciclicdaaiantinapis 7

MISCELLANEOUS:

71 Fed. Reg. 17566 (April 6, 2006)............scs+sessseecseesseeee 7,8

iv

TABLE OF AUTHORITIES — Continued

Page

A.J. MCMICHAEL ET AL., COMPARATIVE QUANTIFICA-

TION OF HEALTH RISKS: GLOBAL AND REGIONAL

BURDEN OF DISEASE DUE TO SELECTED MAJOR

RisK FACTORS (World Health Organization, Ge-

" CI CI i cictcsincisinstinstnpacitaleihelihisiianad tack ene 11

A.L. Westerling et al., Warming and Earlier Spring

Increases Western U.S. Forest Wildfire Activity,

SCIENCE EXPRESS RESEARCH ARTICLES, July 6,

SII sioitnteislecenstniedinidecinitadeiniaictlatiaiadia tac ctclia Neha ie on 16

Amanda Covarrubias, California Heat Wave Deaths

Prompt Health Study, L.A. TIMES, Aug. 3, 2006........... 18

Amanda Paulson, When heat hits, city hall comes to

the rescue, CHRISTIAN SCIENCE MONITOR, Aug. 3,

SDE scscninstasievnassinninsiiassaisshiniiehdiadaticinicinasdicinisliadiaialia ma aaal 18

Anthony Ramirez, Allstate to Pare Home Policies

Near Shore, N.Y. TIMES, Mar. 10, 2006..................:00000 15

CALIFORNIA CLIMATE CHANGE CENTER, OUR CHANG-

ING CLIMATE: ASSESSING THE RISKS TO CALIFORNIA

(2006) (visited Aug. 28, 2006) <http://www.energy.

ca.gov/2006publications/CEC-500-2006-077/CEC-

EE, SE em ere ae ae 15, 19, 22

A Citizen of New York (John Jay), Address to the

People of the State of New York (Apr. 15, 1787), in

17 DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION 101 (Merrill Jensen, John

P. Kaminski & Gaspare J. Saladino eds., 1976) ............. 9

ELIZABETH KOLBERT, FIELD NOTES FROM A CATAS-

TS GID vc ccnrccrncncccttccnissnscisinnscpaiitniiiuitidigmmdieemaaes 11

TABLE OF AUTHORITIES — Continued

Gregory Zimmerman et al., Climate Change:

Modeling a Warmer Rockies and Assessing the

Implications, in 2006 COLORADO COLLEGE STATE

OF THE ROCKIES REPORT CARD (Walter Hecox et

al., eds., 2006) (visited Aug. 28, 2006) <http://

www.coloradocollege.edu/stateoftherockies/O6Report

Card/Climate%20Change, %20updated%2005-01-

ee Neel a

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,

CLIMATE CHANGE 2001: IMPACTS, ADAPTATION, AND

VULNERABILITY, CONTRIBUTION OF WORKING GROUP

II TO THE THIRD ASSESSMENT REPORT (James J.

McCarthy et al., eds., 2001) (visited Aug. 28, 2006)

<http://www.ipcec.ch/pnub/wg2SPMfinal.pdf>...........

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,

CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS,

CONTRIBUTION OF WORKING GROUP | TO THE THIRD

ASSESSMENT REPORT (J.T. Houghton eft al., eds.,

2001) (visited Aug. 28, 2006) <http:/Awww.grida.no/

climate/ipec_tar/wg1/pdf/WG1_TAR-FRONTPDPF> ....

International Council for Local Environmental

Initiatives, Green Power Options, (visited Aug.

28, 2006) <http://www.greenpowergovs.org/>..........

International Council for Local Environmental Initia-

tives, U.S. Cities for Climate Protection Campaign,

Green Fleets, (visited Aug. 28, 2006) <http//www.

greenfleets.org/LocalGovernmentExamples.html> .....

J. Alan Pounds et al., Widespread Amphibian

Extinctions from Epidemic Disease Driven by

Global Warming, 439 NaTuRE 161 (Jan. 12, 2006)..

Page

—_ 11

TABLE OF AUTHORITIES — Continued

Page

JAMES E. McCarRTHY, CONGRESSIONAL RESEARCH

SERVICE, CLEAN AIR ACT: A SUMMARY OF THE ACT

AND ITS MAJOR REQUIREMENTS, CRS-5-CRS-7

EERE ES PTE ee OLE Ee SPER Oe 20

Janet Wilson, Intense Heat Begets Iné».se Smog,

eal, TaN: Tk, CIID cctencncnsntesetbiecesinihntpemniingsinaniene 19

Jennifer Steinhauer, Clinton Foundation to Work to

Reduce Greenhouse Gases, N.Y. TIMES, Aug. 2,

EAT eek SE nee oree evree Te Pe Tey nen eEOS 21

Jonathan Patz et al.,. Impact of Regional Climate

Change on Human Health, 438 NATURE 310 (Nov.

vis PaITTTTE ecisieitichieeiehineiichaaneesiniietelisiteeinilentiniehdanpaeateltapiniias 11

Juliet Eilperin, More Frequent Heat Waves Linked

to Global Warming, WASH. Post, Aug. 4, 2006............. 17

Kevin E. Trenberth and Dennis J. Shea, Atlantic

hurricanes and natural variability in 2005, 33

GEOPHYSICAL RESEARCH LETTERS L12704 (2006).......... 15

Kim McGuire, Memphis area’s air upgraded by EPA

Huckabee: County is ‘open for business’, ARK.

DEMOCRAT-GAZETTE, Sept. 14, 2004.00.00... cece 20

- Lisa Irvine, Update on the Costs and Reimbursement for

the October 2003 Cedar Fire (Mar. 26, 2004) (The City

of San Diego Manager’s Report -No. 04-067)

<http//clerkdoc.sannet.gov/RightSite/getcontent/local.

pdf ?DMW_OBJECTID= 9001451800ae4e0>................... 16

vii

TABLE OF AUTHORITIES — Continued

Michael Floyd et al., Potential Impacts of Climate

Change on California’s Water Resources, in PRO-

GRESS ON INCORPORATING CLIMATE CHANGE INTO

MANAGEMENT OF CALIFORNIA’S WATER RESOURCES

TECHNICAL MEMORANDUM REPoRT (California Dept.

of Water Resources 2006) (visited Aug. 28, 2006)

<http://baydeltaoffice.water.ca.gov/climatechange/

DWRClimateChangeJuly06.pdf> ..............0:cccccceeeees

Michael T. Uberuaga, Initial 30-Day Post-Fire Over-

view (Dec. 3, 2003) (The City of San Diego Man-

ager’s Report No. 03-242) (visited Aug. 28, 2006)

<http://clerkdoc.sannet.gov/RightSite/getcontent/

local.pdf 7 DMW_OBJECTID=09001451800ab1e5>..

NATIONAL ASSESSMENT SYNTHESIS TEAM, CLIMATE

CHANGE IMPACTS ON THE UNITED STATES: THE

POTENTIAL CONSEQUENCES OF CLIMATE VARIABIL-

ITY AND CHANGE, REPORT FOR THE US GLOBAL

CHANGE RESEARCH PROGRAM 5 (2001) (visited Aug.

28, 2006) <http://www.usgerp.gov/usgerp/Library/

nationalassessment/foundation.htm>............... 12,

P.W. Mote, Trends in snow water equivalent in the

Pacific Northwest and their climatic causes, 30

GEOPHYSICAL RESEARCH LETTERS 1601 (2003).........

P.W. Mote et al., Variability and Trends in Moun-

tain Snowpack in Western North America, Pro-

ceedings of the 15th Conference on Global

Climate Variations and Change 5.1 (2004) .............

Richard A. Kerr, News Focus: Three Degrees of

Consensus, 305 SCIENCE 932 (Aug. 13, 2004)...........

Page

14, 18

TABLE OF AUTHORITIES - Continued

SAN FRANCISCO PUBLIC UTILITIES COMM’N, 2005

SFPUC WATER QUALITY REPORT 4 (2006) (visited

Aug. 28, 2006) <http://www.sfwater.org/detail.cfm/

MC_ID/13/MSC_ID/166/MTO_ID/299/C_ID/3056> ......

Spencer S. Hsu, Insurers Retreat from Coasts,

a Se eG IIe SET trscnntcndenneninsstscanaendaneniiette

Tim Barnett et al., The Effects of Climate Change

on Water Resources in the West: Introduction and

Overview, 62 CLIMATIC CHANGE 1 (2004), (visited

Aug. 28, 2006) <http:/www.uwyo.edu/enr/enrschool/

Page

ENR4900_5900/Barnett%20et%20al.%202004.pdf> ... 20, 21

U.S. DEPARTMENT OF STATE, U.S. CLIMATE ACTION

REPORT 2002 (May 2002) (visited Aug. 28, 2006)

<http://www.epa.gov/globalwarming/publications/

SE ccitivctntennsntinnnepismttiotininiinienitl passim

U.S. EPA, Average Annual Excess Weather-Related

Mortality for 1993, 2020, and 2050 Climate, slide

(visited Aug. 28, 2006) <http://yosemite.epa.gov/

OAR/globalwarming.nsf/content/ResourceCenter

PresentationsImpacts.html>................0...c:ccccccseeeeees

U.S. EPA, Green Book, 8-Hour Ozone, 8-Hour Ozone

Nonattainment Area/State/County/Report (visited Aug.

28, 2006) <http://www.epa.gov/oar/oaqps/greenbk/

U.S. Mayors Climate Protection Agreement (visited

Aug. 28, 2006) <http://www.ci.seattle.wa.us/mayor/

EELS SEE ETE Re SENDS AERTS AGE ees ee ;

1

INTEREST OF THE AMICI CURIAE'

Local officials are acutely aware of the need to reduce

global warming pollutants now. Over the last 18 months,

mayors of 275 cities in.42 States, representing more than

48 million Americans, have signed the U.S. Mayors Cli-

mate Protection Agreement (available at http://www.ci.

seattle.wa.us/mayor/climate/). These mayors have agreed

to reduce greenhouse gas emissions in their own communi-

ties to seven percent below 1990 levels by 2012. Each of

the individual municipal amici on this brief is a signatory

to the Agreement.

Our municipal leaders recognize, however, that they

cannot do the job alone. To achieve the reductions needed

to prevent grave injury from global warming, the U.S.

Environmental Protection Agency must lead the way, and

not shirk its responsibilities as set forth in the federal

Clean Air Act. Through this brief, amici urge the Court to

direct EPA to adhere to the plain text of the Act, treat

greenhouse gases as air pollutants subject to regulation

under Section 202, and apply the legal standard set forth

in that provision. The particular interests of each amicus

are described below.

*ee *e *

The U.S. Conference of Mayors represents more than

1,100 cities with populations of 30,000 or more. The

Conference promotes the development of effective urban

The parties have consented to the filing of this brief, and letters

reflecting that consent have been filed with the Clerk. This brief was

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

entity other than amici, their members, and their counsel made a

monetary contribution to the preparation or submission of this brief.

2

policy, strengthens federal-city relationships, and creates a

forum in which mayors can share ideas and information.

In June 2005, the Conference endorsed the U.S. Mayors

Climate Protection Agreement, which urges federal, State,

and local officials to enact policies to reduce global warm-

ing pollution.

The National Association of Counties (NACo) was

created in 1935, and its membership totals more than

2,000 counties, representing over 80 percent of the nation’s

population. NACo acts as a liaison with other levels of

government, works te improve public understanding of

counties, serves as a national advocate for counties, and

helps counties find innovative solutions to the challenges

they face. NACo is involved in several special projects to

protect the environment and promote sustainable commu-

nities.

The International Municipal Lawyers Association

(IMLA) is a non-profit, professional organization that has

been an advocate and legal resource for local governments

since 1935. IMLA members include attorneys from more

than 1,400 municipalities across the country. It serves as

the legal voice for the nation’s local governments. In view

of the grave threat to municipalities posed by global

warming, IMLA has a vital interest in the legal issues

raised by this case.

The American Planning Association (APA) is a public

interest organization founded in 1978 to advance the art

and science of planning at the local, regional, State, and

national levels. It represents more than 38,000 planners,

officials, and citizens involved in formulating and imple-

menting planning policies and land use regulations. The

American Planning Association has adopted two policy

3

guides that highlight the role and responsibility of plan-

ners and the planning profession in addressing climate

change issues: its Energy Policy Guide adopted in 2004

(available at http://www.planning.org/policyguides/energy.

htm), and its Policy Guide on Planning for Sustainability

adopted in 2000 (available at http://www.planning.org/

policyguides/sustainability.htm). The APA encourages its

members to combat global warming in several ways,

including the design of transportation systems that

promote sustainability by reducing dependence on fossil

fuels.

The City of Seattle, the largest city in the Pacific

Northwest, launched the U.S. Mayors Climate Protection

Agreement and has been actively addressing global warm-

ing since the early 1990s. Seattle is particularly vulner-

able to climate change Lecause its municipal water supply

and hydroelectric system are both fed by annual snowpack

accumulations in the Cascade Mountains, which have

already declined by 50 percent since 1950. Actions to

reduce climate pollution emissions are one of the City’s

highest priorities. Indeed, the City’s municipally owned

utility, City Light, is the only electric utility in the country

that is essentially climate neutral, an achievement made

possible by the City’s clean hydroelectric supply, reliance

on energy conservation, and investments in carbon offsets.

The City of Albuquerque is especially concerned about

global warming because warmer climate patterns threaten

Albuquerque’s ability to rely on nearby rivers for munici-

pal, industrial, and residential use. Albuquerque also is

host to the world’s most photographed annual event — the

International Balloon Fiesta - a 10-day celebration in

October that attracts half a million visitors and depends

heavily on the cool, clear mornings of a traditional Rocky

4

Mountain fall. Albuquerque is greatly reducing its own

greenhouse gas emissions through the use of alternative

fuel vehicles, green building — and other innova-

tive programs.

The City of Burlington is particularly concerned about

global warming because the forested areas that surround

the City face serious threats from insects that can survive

in northern climates with slight temperature increases.

Damage to these forests will threaten Burlington’s maple

sugar industry, ski industry, and fall foliage tourism, all of

which are integral to the local economy. Burlington has

instituted many improvements to reduce greenhouse gas

emissions, including transportation initiatives and energy

conservation strategies.

San Francisco, which has a population of approxi-

mately 777,000, is concerned about global warming be-

cause of its harmful effects on San Francisco’s power and

water supplies, property, and infrastructure. San Fran-

cisco has instituted many measures to reduce greenhouse

gas emissions, including renewable energy programs and

aggressive initiatives to reduce municipal emissions. But

because these measures cannot, by themselves, solve the

problem of global warming, San Francisco encourages and

supports the efforts of other governmental entities to

reduce greenhouse gas emissions.

¢

SUMMARY OF ARGUMENT

Respect for State and local authority requires adher-

ence to the broad plain meaning of the federal Clean Air

Act. The cumulative position of various federal agencies is

that EPA has no legal authority to regulate greenhouse

5

gas emissions from motor vehicles under the Clean Air

Act, and that the federal Energy Policy and Conservation

Act of 1975 preempts States from controlling these emis-

sions under State law. These positions are exceedingly

unfair to States and municipalities, who will be the first

responders to the disasters caused by global warming.

EPA’s position also directly threatens the ability of States

to adopt greenhouse gas standards for motor vehicles

under section 209%b) of the Clean Air Act. Moreover,

without federal leadership, State and local efforts to

address global warming will be entirely inadequate to

protect critical State and local interests.

Global warming is not merely a future threat, but a

present deadly reality, claiming the lives of up to 150,000

people each year due to malnutrition, malaria, and other

maladies. In addition to these ongoing public health

consequences, global warming is likely to mean more

disasters such as intense hurricanes and storm surges

crashing into America’s eastern seaboard, one of the

fastest growing parts of the country. Municipalities also

must grapple with the less cataclysmic but still threaten-

ing challenges of climate change: more smog; sudden

rainstorms that overwhelm and pollute municipal water

supplies and flood transportation networks; and droughts

that disrupt hydropower transmission and deplete local

reservoirs.

The continuing and threatened impacts of global

warming highlight the remarkable nature of Respondents’

assertion that none of the States, cities, and national

organizations that filed this litigation has standing. But

Petitioners’ injury does not turn on whether global warm-

ing reaches some catastrophic level. Rather, Petitioners

already are injured and will suffer more injury with each

6

~

additional increment of human-induced global warming.

EPA has the power to redress these injuries by mandating

reductions in greenhouse gases under Section 202 of the

Clean Air Act. All of the necessary elements for standing

have plainly been met here.

¢

ARGUMENT

Amici agree with the textual exegesis and legal

analysis provided by Petitioners, and there is no need to

repeat those arguments here. Instead, we explain why this

case is of particular concern to local officials and planners,

who are the first responders to the serious harm that

global warming is causing and will continue to cause, and

why Respondents’ contentions threaten the interests of

municipalities and their residents.

I. PRINCIPLES OF FEDERALISM AND RE-

SPECT FOR STATE AND LOCAL AUTHORITY

COMPEL ADHERENCE TO THE BROAD

PLAIN MEANING OF THE FEDERAL CLEAN

AIR ACT.

In interpreting other federal environmental statutes,

the Court sometimes has invoked principles of federalism

to support a narrow reading of federal authority. E.g.,

Solid Waste Agency of N. Cook County v. United States

Army Corps of Eng’rs, 531 U.S. 159, 174 (2001). In many

situations, however, an adequate federal presence is

essential to promote federalism, preserve State sover-

eignty, and protect State and local interests. E.g., Rapanos

v. United States, 126 S. Ct. 2208, 2246-47 (2006) (Kennedy,

J., concurring) (observing that adequate federal protection

7

of intrastate tributaries and wetlands promotes State

interests due to the interstate harm caused by their

destruction). In this case, respect for State and local

authority requires adherence to the broad plain meaning

of the federal Clean Air Act, for several reasons.

First, the positions of various federal agencies regard-

ing greenhouse gas regulation have left State and local

officials in an untenable position. In an administrative

proceeding not at issue in this litigation, the National

Highway Traffic Safety Administration (NHTSA) recently

asserted that the federal Energy Policy and Conservation

Act of 1975 (EPCA) preempts State and local officials from

regulating greenhouse gas emissions from motor vehicles.

See 71 Fed. Reg. 17566, 17654-70 (April 6, 2006) (discuss-

ing preemption under 49 U.S.C. § 32919(a)). Thus, the

cumulative position of EPA and NHTSA is that EPA

cannot regulate greenhouse gas emissions from motor

vehicles under the Clean Air Act, and EPCA preempts

other levels of government from doing so under State law.

Worse still, in setting fuel efficiency standards,

NHTSA does not consider the harm threatened by global

warming. Specifically, NHTSA does not count the benefits

of reducing greenhouse gases in its cost-benefit analysis

for federal corporate average fuel economy (CAFE) stan-

dards. See id. at 17638 (rejecting proposals to consider the

value of greenhouse gas reductions in setting CAFE

standards).

Thus, unlike the typical case in which a federal

agency disavows legal authority, which normally would

leave the matter to our State and local officials, EPA’s

position here takes on far greater significance. We dis-

agree with NHTSA’s assertion regarding preemption, but

8

until a court rules differently, adequate federal control of

greenhouse gas emissions from motor vehicles is even

more urgent due to the prospect of States being unable to

regulate them. The cumulative impact of the EPA and

NHTSA positions is exceedingly unfair to State and local

officials, who will be the first responders to the disasters

caused by global warming (see Section II, infra).

Second, an unduly constrained reading of the federal

Clean Air Act would curtail the regulatory authority of

every State. Although Section 20%a) of the Act preempts

State standards relating to the control of motor vehicle

emissions, Section 209(b) allows California to adopt such

standards subject to EPA approval, and it authorizes every

other State to adopt standards identical to California’s.

See 42 U.S.C. §§ 7543(a) & (b). Under this authority,

California has promulgated greenhouse gas emission

standards for mobile sources, and several] other States

have adopted those standards.’ If greenhouse gases are

deemed “air pollutants” under the Clean Air Act, the

waiver authority under Section 209 would provide a safe

harbor and authorize these State standards notwithstand-

ing NHTSA’s reading of EPCA discussed above. But unless

the appeals court’s ruling below is reversed, all of these

standards will likely be rendered inoperative, and all

States will likely be prohibited from using Section 209 to

address greenhouse gas emissions from motor vehicles.

As Justice Kennedy has recognized, “the States

maintain permanent staffs within special agencies” to

implement the federal Clean Air Act, and these State

? See Cal. Code Regs., tit. 13, §§ 1900, 1961, 1961.1 (2006); 71 Fed.

Reg. 17566, 17655 (April 6, 2006) (discussing the California standards).

9

employees “no doubt take pride in their own resourceful-

ness, expertise, and commitment to the law.” Alaska Dep't

of Envtl. Conservation v. EPA, 540 U.S. 461, 516 (2004)

(Kennedy, J., dissenting). By ignoring the plain text of the

Act, EPA disrespects the States that have adopted Califor-

nia’s greenhouse gas standards under a straightforward

reading of the Act, essentially “relegating [them] to the

role of mere provinces or political corporations, instead of

coequal sovereigns entitled to the same dignity and re-

spect.” Id. at 518.

Finally, global warming is exactly the kind of national

and international issue that the Founders would have

recognized as requiring a national response. Federalism,

properly viewed, does not maximize State authority at the

expense of federal authority, but instead ensures that each

level of government has the appropriate authority neces-

sary to promote the welfare of our citizens. Given the

enormity of the problem posed by global warming, it does

no violence to principles of federalism to give full effect to

the broad authority set forth in the Clean Air Act.As John

Jay put it, the Founders at the Constitutional Convention

believed “that a national government competent to every

national object, was indispensably necessary.”

States and localities already are taking significant

steps to reduce greenhouse gas emissions. For example,

many U.S. municipalities have reduced greenhouse gas

emissions from municipal fleets by purchasing alternative-

fuel vehicles, downsizing their fleets, and optimizing

* A Citizen of New York (John Jay), Address to the People of the

State of New York (Apr. 15, 1787), in 17 DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 101, 111 (Merrill Jensen, John P.

Kaminski & Gaspare J. Saladino eds., 1976).

10

vehicle travel.* Cities and counties also have turned to

wind power, solar power, and other renewable sources of

electricity to reduce fossil fuel consumption.’ In the ab-

sence of federal leadership, however, these efforts will not

reduce climate pollution enough to avoid devastating

injury to local communities.

Moreover, “free-rider” inequities arise because the

States that do little to address global warming still benefit

from the sacrifices made by other States and municipali-

ties. In Rapanos, Justice Kennedy observed in concurrence

that federal protection of wetlands and non-navigable

waterways promotes the interests of all States because it

protects them from pollution and flooding caused by

environmental degradation in upstream States. See

Rapanos, 126 S. Ct. at 2246-47. In the same way, federal

regulation of greenhouse gas emissions will promote the

interests of all States by protecting them from the threat

of global warming and reducing the free-rider inequities

arising from the relative inattention of certain States.

II. UNLESS OUR NATION TAKES ADEQUATE

STEPS TO CONTROL GREENHOUSE GASES

NOW, GLOBAL WARMING WILL CONTINUE

TO CAUSE DEVASTATING HARM TO LOCAL

COMMUNITIES ACROSS THE COUNTRY.

Global warming is not merely a future threat, but a

present deadly reality. The World Health Organization

* See International Council for Local Environmental Initiatives

(ICLEI), U.S. Cities for Climate Protection Campaign, Green Fleets,

<http://www.greenfleets.org/LocalGovernmentExamples.html>.

* See ICLEI, Green Power Options, <http://www.greenpowergovs.

org/>. :

11 v

estimates that anthropogenic (human-produced) warming

already is killing up to 150,000 people each year due to

malnutrition, malaria, and other maladies.° In addition to

these ongoing public health consequences, global warming

also is causing immediate harm to the environment.’ And

the overwhelming scientific consensus is that global

warming will significantly worsen.

Conservative predictions indicate that average global

temperatures will climb between 4.5 and seven degrees

Fahrenheit by the end of the century.’ These numbers

might seem small, but small shifts in global temperature

can have enormous effects. Indeed, there is only about a

ten degree increase between today’s average global tem-

perature and that at the height of the last ice age.” The

* See Jonathan Patz et al., Impact of Regional Climate Change on

Human Health, 438 NATURE 310, 310 (Nov. 17, 2005) (World Health

Organization estimates that “warming and precipitation trends due to

anthropogenic climate change of the past 30 years already claim over

150,000 lives annually”); id. at 313 (citing A.J. MCMICHAEL &T AL.,

COMPARATIVE QUANTIFICATION OF HEALTH RISKS: GLOBAL AND REGIONAL

BURDEN OF DISEASE DUE TO SELECTED MAJOR RISK FACTORS 1543-1649

(World Health Organization, Geneva, 2004)).

* J. Alan Pounds et al., Widespread Amphibian Extinctions from

Epidemic Disease Driven by Global Warming, 439 NATURE 161, 165

(Jan. 12, 2006) (global warming already has helped cause the loss of

many species and poses “an immediate threat to biodiversity.”).

* U.S. DEPARTMENT OF STATE, U.S. CLimaTE ACTION REPORT 2002,

at 82 (May 2002) {hereinafter CLIMATE ACTION’ REPORTI,

<http://www.epa. gov/globalwarming/publications/car/index.htm]>; accord

Richard A. Kerr, News Focus: Three Degrees of Consensus, 305 SCIENCE

932, 932 (Aug. 13, 2004) (“almost all the evidence points to 3°C [or

5.4°F] as the most likely amount of warming for a doubling of CO, * * *

by century’s end.”).

* ELIZABETH KOLBERT, FIELD NOTES FROM A CATASTROPHE 107 (2006).

12

United States is likely” to warm between three and nine

degrees Fahrenheit during this century.”

The harm caused by global climate change will be

especially challenging for State and local officials, who will

serve as the first responders to the calamities global

warming will bring. As has been made tragically clear in

the United States in the wake of recent disasters, State

and local officials are responsible for orderly evacuations

from fires and floods, and they must plan and reconstruct

neighborhoods or entire cities afterwards. Global warming

is likely to mean more disasters like intense hurricanes

and high storm surges crashing into America’s eastern

seaboard, which is one of the most urbanized parts of the

country and one of the fastest growing.

Municipalities also must grapple with the less cata-

clysmic but still threatening challenges of climate change,

such as higher temperatures that lead to more smog and

federal sanctions for violating clean air standards; or

sudden ferocious rainstorms that overwhelm and pollute

municipal water supplies and flood transportation net-

works; or droughts that disrupt hydropower transmission

and deplete local reservoirs. As discussed in more detail

* In the scientific dialogue on climate change, the words “likely” and

“very likely” have particular meaning. For example, in the Climate Change

Impacts Reports prepared for the federally sponsored U.S. Global Change

Research Program, “likely” indicates a likelihood of around 60 to 80

percent, and “very likely” indicates a likelihood of around 80 to 100 percent.

See NATIONAL ASSESSMENT SYNTHESIS TEAM, CLIMATE CHANGE IMPACTS ON

THE UNITED STATES: THE POTENTIAL CONSEQUENCES OF CLIMATE VARIABIL-

ITY AND CHANGE, REPORT FOR THE U.S. GLOBAL CHANGE RESEARCH

PROGRAM 5 (2001) {hereinafter CLimaTE CHANGE Impacts], <http://

www.usgerp.gov/usgerp/Library/nationalassessment/foundation htm>.

" CLIMATE ACTION REPORT, supra note 8, at 84.

13

below, State and local officials across the United States

face one or more of these challenges.

A. Local Officials Must Deal With Threats To

People And Infrastructure From Flooding,

Storm Surges, And Wildfires, All Of Which

Will Worsen Because Of Global Warming.

Increasing sea levels are one of the most certain

aspects of climate change.” The Intergovernmental Panel

on Climate Change (IPCC) has high confidence (a 67-95%

degree of certainty) that higher sea levels around North

America will lead to “enhanced coastal erosion, coastal

flooding, loss of coastal wetlands, and increased risk from

storm surges, particularly in Florida and much of the US.

Atlantic coast.”” The IPCC projects a rise of sea levels

across the globe of three inches to almost three feet by

2100."

Rising sea levels affect coastal communities in several

ways. First, low-lying areas may be permanently under-

water as seas rise. In the New York City area, for example,

“[a] one-foot rise in sea level would bring about on average

120 feet of erosion and submergence absent costly measures

* Id. at 156.

* IPCC, CLimMaTe CHANGE 2001: Impacts, ADAPTATION, AND

VULNERABILITY, CONTRIBUTION OF WORKING GROUP JI TO THE THIRD

ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE

CHANGE 4 n.6, 16 (hereinafter WORKING GROUP II] (James J. McCarthy

et al., eds., 2001), <http://www.ipec.ch/pub/wg2SPMfinal.pdf>.

“ IPCC, CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS, CONTRIBU-

TION OF WORKING GrouP I TO THE THIRD ASSESSMENT REPORT OF THE

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 16 (J.T. Houghton

et al., eds., 2001), <http//www grida.no/climate/ipec_tar/wg l/pdf/WG1_TAR-

FRONT. PDF>.

14

to defend or restore the beaches. This kind of erosion

would result in the loss of a significant portion of the

beaches of New Jersey, New York City and Long Island.””

A five to eight-inch rise in sea level would cause the loss of

“thousands of acres” of beachfront land in Long Island and

New Jersey.”

Rising sea levels also mean higher storm surges (since

the surge starts from a higher waterline). By the turn of

the next century, New York City’s 100-year floods could

instead occur every 19 years, and overwhelm the city’s

airports, highways, subways, and tunnels. As a result of

sea level increases, weaker, more frequent storms in the

future probably will do more damage than powerful,

extraordinary storms do today. If a category three hurri-

cane hit New York City, “surge levels could rise 25 feet

above mean sea level at JFK airport and 21 feet at the

Lincoln tunnel.””

Baltimore, Maryland, also has infrastructure at

serious risk from rising sea levels and flooding. According

to one city official, “if the predictions of current, scientifi-

cally accepted global climate change models relating to

changes in annual precipitation and sea leve] changes

occur, those changes would have significant costly impacts

to Baltimore City. * * * Impacted infrastructure would

include storm drains, utility conduits, underground at

grade parking and sanitary sewage conveyance and

treatment facilities. This entire public and private infra-

structure is designed and built around the existing sea

* C.A. Standing App. 234-235 (Oppenheimer Decl.).

* Id. at 235.

" CLimate CHANGE IMPACTS, supra note 10, at 118, 122.

15

level.”” Both Santa Cruz, California, and Boston, Massa-

chusetts, would see formerly 100-year floods every ten

years if sea level rises just one foot.”

Natural and human-induced changes, including the

destruction of marshes, barrier islands, and wetlands over

the last several decades, make the U.S. Gulf Coast par-

ticularly susceptible to damage from rising sea levels. By

2010, 73 million people will live in the nation’s most

hurricane-prone counties, most of them in the Southeast

United States. They will be in the path of more destructive

storms because climate change probably will increase the

intensity, if not the frequency, of Atlantic hurricanes.”

Allstate Insurance Corporation no longer issues new

policies to homeowners in Florida, Louisiana, the New

York City area, and the Texas Gulf Coast because of the

high risk of hurricane destruction.” Like private homes,

public property — roads, sewers, schools, police stations —

is also at risk.

Wildfires are yet another natural threat to human life

and property that global warming will exacerbate. Scien-

tists have documented a sudden, sharp upsurge in wild-

fires in the western U.S., with more frequent large

* C.A. Standing App. 38-40 (Conrad Decl.).

* CALIFORNIA CLIMATE CHANGE CENTER, OUR CHANGING CLIMATE:

ASSESSING THE RISKS TO CALIFORNIA 12 (2006), <http:/Avww.energy.ca.

gov/2006publications/CEC-500-2006-077/CEC-500-2006-077.PDF>; C.A.

Standing App. 197-198 (Kirshen Decl.).

* CLIMATE ACTION REPORT, supra note 8, at 100-01; see also Kevin

E. Trenberth and Dennis J. Shea, Atlantic hurricanes and natural

variability in 2005, 33 GEOPHYSICAL RESEARCH LETTERS L12704 (2006).

” Spencer S. Hsu, Insurers Retreat from Coasts, WaSH. Post, Apr.

30, 2006, at Al; see also Anthony Ramirez, Allstate to Pare Home

Policies Near Shore, N.Y. TIMES, Mar. 10, 2006, at B4.

16

wildfires, longer-burning fires, and longer fire seasons,

starting in the mid-1980s. It is not clear whether the

current rise in wildfire frequency and ferocity is attribut-

able to global warming, but researchers note that “virtu-

ally all climate model projections indicate that warmer

springs and summers will occur over the region in coming

decades. These trends will reinforce the tendency toward

early spring snowmelt and longer fire seasons. This will

accentuate conditions favorable to the occurrence of large

wildfires * * *,””

Wildfires require a massive municipal response, going

well beyond fire and police departments. When the largest

wildfires in California history swept through the San

Diego region in late October 2003, the City of San Diego

set up three evacuation centers. City staff assessed 400

damaged structures in 72 hours after the fire stopped. The

City’s transportation department removed damaged trees,

distributed 14,000 sandbags, and placed screens-on storm

drains to keep out fire debris.” While much of the cost of

responding to the fire was covered by federal disaster aid,

the City lost about $2 million in waived fees associated

with reconstruction, and was not reimbursed for other lost

revenues, or the replacement of trees, shrubs, and ground-

cover destroyed by the fire.”

” AL. Westerling et al., Warming and Earlier Spring Increases

Western U.S. Forest Wildfire Activity, SCIENCE EXPRESS RESEARCH

ARTICLES, July 6,-2006, at 1, 4.

® Michael T. Uberuaga, Initial 30-Day Post-Fire Overview (Dec. 3, 2003)

(The City of San Diego Manager’s Report No. 03-242), <http//clerk-

doc.sannet.gov/RightSite/getcontent/local.pdf?7DMW_OBJECTID=09001

451800ab1e5>.

* Lisa Irvine, Update on the Costs and Reimbursement for the

October 2003 Cedar Fire (Mar. 26, 2004) (The City of San Diego

(Continued on following page)

17

Whether to fire or flood, the crucial first hours of

disaster response are a local responsibility. Global warm-

ing will increase the likelihood of natural disasters, and

therefore increase the demands on local and county

officials, employees, services, and budgets.

B. Local Officials Must Deal With The Effects

Of Deadly Heat Waves and Heat-Related

Air Pollution.

Not surprisingly, the Intergovernmental Panel on

Climate Change notes that very hot days and more heat

waves are “very likely” (a 90-99 percent chance) to occur as

a result of climate change.” Increased temperatures

present enormous challenges to county and local govern-

ments, and can have devastating effects on human health,

particularly in urban areas.

Heat waves are a major global warming challenge for

municipal governments — one that is present now, not

looming in the future. In early August 2006, the chief of

the climate-analysis branch of the National Center for

Atmospheric Research said that “[t}here are very good

reasons to believe that the current U.S. heat wave is at

least partly caused by global warming.”” Urban areas are

doubly at risk of heat waves because they trap heat,

meaning residents cannot recover from intense heat

Manager’s Report No. 04-067), <http://clerkdoc.sannet.gov/RightSite/

getcontent/local.pdf?7DMW_OBJECTID=09001451800ae4e0>.

* WoRKING GROUP II, supra note 13, at 7.

* Juliet Eilperin, More Frequent Heat Waves Linked to Global

Warming, WASH. Post, Aug. 4, 2006, at A3.

18

overnight, and because they tend to be home to poor and

vulnerable populations.”

Major cities are already devoting resources to combat-

ing heat waves, recognizing that these events demand the

same response as hurricanes, floods, or terrorist attacks.

During an excruciatingly hot period in late July and early

August this year, the city of New York opened more than

350 cooling centers, relied on back-up generators to avoid

power failures, and activated the citys Emergency Opera-

tions Center. All towns in Rhode Island had to open at

least one public cooling facility. Chicago officials tried to

avert the same consequences of a 1995 heat wave that

killed 700 people;* in 2006,- they evacuated more than

1000 residents after a power failure in high-rise apart-

ments and opened scores of cooling centers.”

The July 2006 heat wave in California was the likely

cause of more than 160 deaths, making it more deadly

than the Loma Prieta earthquake of 1989 and Northridge

earthquake of 1994. In the State’s hottest inland regions,

county morgues were over their capacity. Public officials

called the heat wave “an invisible natural disaster.”

The EPA estimates that, under one climate change

scenario, “excess weather related mortality” in a single

year would mean the death of 1250 people in New York

City, 600 people in St. Louis, and between 200 and 300

** CLIMATE ACTION REPORT, supra note 8, at 106.

** CLIMATE CHANGE IMPACTS, supra note 10, at 106.

* Amanda Paulson, When heat hits, city hall comes to the rescue,

CHRISTIAN SCIENCE MONITOR, Aug. 3, 2006, at 1.

* Amanda Covarrubias, California Heat Wave Deaths Prompt

Health Study, L.A. TIMES, Aug. 3, 2006, at B1.

19

people in Atlanta, Dallas, and Los Angeles.” Municipal

governments are responsible for averting as many of these

deaths as possible, and the costs they incur in doing so will

be, at least in part, costs of global warming.

Warmer weather also exacerbates pollution, particu-

larly ground-level ozone or smog, which is already a major

health concern in our nation’s cities and counties. Ozone

forms when volatile organic compounds (VOCs), emitted

by dry cleaners, cars, chemical plants, refineries, and

other industrial sources, react with nitrogen oxides,

emitted by vehicles and power plants, on hot and sunny

days. A warmer climate means more days on which ozone

is likely to form. For example, if temperatures rise three to

5.5 degrees, the number of days conducive to ozone forma-

tion in Los Angeles will rise by about 25 percent; if tem-

peratures rise 5.5 to eight degrees, the number of ozone-

conducive days increases by 75 percent.” Hot weather can

also create a vicious cycle of ozone pollution: energy usage

spikes on hot days (in part because more people use air

conditioning), leading to the emissions of more ozone-

forming pollutants from power plants.”

Currently, 462 counties, home to more than 158

million people, exceed federal standards for ozone levels.”

Global warming, by making ozone formation more likely,

* US. EPA, Average Annual Excess Weather-Related Mortality for 1993,

2020, and 2050 Climate, slide <http//yosemite.epa.gov/OAR/globalwarming.

nsf/content/ResourceCenterPresentations!I mpacts.html>.

* CALIFORNIA CLIMATE CHANGE CENTER, supra note 19, at 5.

* JA 233 n.18 (MacCracken Decl.); see also Janet Wilson, Intense

Heat Begets Intense Smog, L.A. TIMES, Aug. 3, 2006, at Al5. 7

* US. EPA, Green Book, 8-Hour Ozone, 8-Hour Ozone Nonattainment

Area/State/County/Report, <http//www.epa.gov/oar/oaqps/greenbk/gnca.html>.

20

will make compliance with federal standards even more

difficult, and non-compliance carries severe penalties for

state and local governments. States have to go through the

difficult process of revising their state air quality plans to

find more ways to reduce ozone levels.” Local governments

have to adopt vehicle inspection programs, impose alterna-

tive fuel requirements on vehicle fleets, require area gas

stations to sell less-polluting gasoline, and enact measures

to reduce car and truck travel.” Local governments also

suffer indirectly when the stringent pollution restrictions

imposed on high ozone areas discourage industries from

building or expanding facilities there; local governments

lose tax revenues and job opportunities for residents.” -

C. Local Officials Must Deal With Water

Scarcity And Water Pollution That Are

Exacerbated By Global Warming.

In 2000, researchers working under the auspices of

the U.S. Department of Energy came to the disturbing

conclusion that “even with a conservative climate model,

current demands on water resources in many parts of the

West will not be met under plausible future climate

cenditions, much less the demands of a larger population

and a larger economy.”” For instance, the Colorado River

* C.A. Standing App. 1-7 (Kwetz Decl.).

* JAMES E. MCCARTHY, CONGRESSIONAL RESEARCH SERVICE, CLEAN

Arr Act: A SUMMARY OF THE ACT AND ITS MAJOR REQUIREMENTS, CRS-5-

CRS-7 (2005).

* Kim McGuire, Memphis area’s air upgraded by EPA Huckabee:

County is ‘open for business,’ ARK. DEMOCRAT-GAZETTE, Sept. 14, 2004.

* Tim Barnett et al., The Effects of Climate Change on Water

Resources in the West: Introduction and Overview, 62 CLIMATIC CHANGE

(Continued on following page)

21

Reservoir system will fail to provide enough water to

Southern California and inland areas by 2050. Hydroelec-

tric power from the Colorado River will drop by as much as

40 percent.”

The linchpin of water resources in much of the West is

mountain snowpack. Snow acts as a natural frozen reser-

voir, holding winter precipitation, then releasing it in the

spring and summer as water runoff. In the Rockies,

snowpack supplies 85 percent of the water supply.”

Snowmelt is a major source of drinking water for San

Francisco" and other California municipalities,” and

likely constitutes about 35 percent of California’s overall

surface water supply.”

Pacific Northwest cities like Seattle also depend on

snowpack for drinking water. Between 1950 and 2000, the

region’s temperature rose, and snowpack accumulations at

1, 6 (2004), <http://www.uwyo.edu/enr/enrschoo/ENR4900_5900/Barnett

Jo2Wet%20al.%202004. pdf>.

* Id. at 6-7.

“ Gregory Zimmerman et al., Climate Change: Modeling a Warmer

Rockies and Assessing the Implications, in 2006 COLORADO COLLEGE

STATE OF THE ROCKIES REPORT CARD 89, 97 (Walter Hecox et al., eds.,

2006), <http://www.coloradocollege.edu/stateoftherockies/06ReportCard/

Climate%20Change,%20updated%2005-01-05.pdf>.

“ San FRANCISCO PuBLIC UTILITIES Comm’N, 2005 SFPUC WaTER

QUALITY REPORT 4 (2006), <http://www.sfwater.org/detail.cfm/MC_ID/13/

MSC_ID/166/MTO_ID/299/C_ID/3056>.

© Jennifer Steinhauer, Clinton Foundation to Work to Reduce

Greenhouse Gas-s, N.Y. TIMES, Aug. 2, 2006, at A3.

“ Michael Floyd et al., Potential Impacts of Climate Change on Califor-

nia’s Water Resources, in PROGRESS ON INCORPORATING CLIMATE CHANGE INTO

MANAGEMENT OF CALIFORNIA'S WATER RESOURCES TECHNICAL MEMORANDUM

REporT, 2-1: 2-22 (California Dept. of Water Resources 2006), <http// baydel-

taoffice.water.ca.gov/climatechange/DWRClimateChangeJ uly06.pdé.

22

many measuring sites in the Cascade Mountains de-

creased by more than 40 or 50 percent.” “Clearly, regional

warming has played a role in the decline in SWE [snow

water equivalent, a measure of snowpack] * * —

Global warming could cause the Sierra Nevada

snowpack in California to drop by 70 to 90 percent; even if

global warming emissions are cut sharply and the tem-

perature rises just a few degrees, snowpack losses will be

35 to 45 percent.” According to the Chief Hydrologist of

the California Department of Water Resources, “a decrease

in the snow pack would decrease the spring runoff * * *.

Less spring runoff would make it more difficult to refill

winter reservoir flood control space during the late spring

and early summer, thus potentially reducing the amount

of water available during the dry season. Lower early

summer reservoir levels would also adversely affect

hydroelectric power production and lake recreation.” The

Rockies and Cascades also face significant snowpack

reductions.

“ PW. Mote, Trends in snow water equivalent in the Pacific

Northwest and their climatic causes, 30 GEOPHYSICAL RESEARCH

LETTERS 1601, 3-1 to 3-4 (2003); P'W. Mote et al., Variability and Trends

in Mountain Snowpack in Western North America, Proceedings of the

15th Conference on Global Climate Variations and Change 5.1 (2004).

“ Mote, 30 GEOPHYSICAL RESEARCH LETTERS, at 3-4. The author

notes that “regional warming at the spatial scale of the Northwest cannot

be attributed statistically to increases in greenhouse gases. However, as

greenhouse gases continue to accumulate, regional warming is likely to

continue as well, and questions of cause will! recede.”

“ CALIFORNIA CLIMATE CHANGE CENTER, supra note 19, at 3, 6.

” C.A. Standing App. 242 (Roos Decl.).

23

While the West struggles with water scarcity, other

regions could face unusual floods and the resulting con-

tamination of the water supply. Heavier rainfall in certain

areas is a likely result of climate change.“ Heavy rainfall

means more storm water runoff, as the inundated ground

cannot absorb the rainwater racing across it. Heavy rains

also increase the possibility of human exposure to water-

borne diseases like cryptosporidium.

Ill. DUE TO THE CONTINUING AND THREATENED

INJURIES RESULTING FROM GLOBAL WARM-

ING, NEW YORK CITY AND BALTIMORE HAVE

STANDING IN THIS CASE.

The foregoing discussion of continuing and threatened

impacts of global warming highlights the remarkable

nature of Respondents’ assertion that none of the States,

cities, and national organizations that filed this litigation

has standing to challenge EPA’s refusal to use Section 202

to reduce greenhouse gas emissions. Only one of the

plaintiffs below needed standing for a decision on the

merits in this case, and we agree with D.C. Circuit Judge

David Tatel that the State of Massachusetts has plainly

demonstrated standing. Pet. App. A-23 to A-26.

_ The municipal amici on this brief are concerned about

the scope of Respondents’ standing argument and its

implications for municipal plaintiffs in future cases. We

therefore offer the following observations regarding the

standing of two municipal Petitioners — the City of New

York and the Mayor and City Council of Baltimore — and

“ CLIMATE ACTION REPORT, supra note 8, at 108.

24

show they have demonstrated all the elements necessary

for standing.

A. Municipal Petitioners Have Shown Injury-

in-Fact.

The standing affidavits submitted in this case docu-

ment ongoing and potential injuries from global warming

that are numerous and profound, particularized and

imminent. These affidavits show injury-in-fact many times

over.

Because of global warming, New York area govern-

ments will have to deal with more frequent and more

damaging storms, more flooding, more erosion, and a

correspondingly dramatic increase in the City’s spending ~

on storm-damaged infrastructure caused by rising sea

levels. C.A. Standing App. 267 (Joint Decl.of Solecki et al.).

Local authorities will also face “an increase in summer-

season heat stress morbidity and mortality, particularly

among the elderly poor,” and an increase in the incidence

of vector-borne diseases and photochemical air pollutants

such as smog. Id. at 268.

The City of Baltimore documents similar and equally

devastating injuries from higher temperatures, including

greater concentrations of ozone, a higher frequency of

floods, and higher storm surges. C.A. Standing App. 36-39

(Conrad Decl.). As a result of these injuries, Baltimore

would face greater costs in repairing and building new

infrastructure and adverse effects on its tourism industry

and economy. Id.

25

B. Municipal Petitioners Have Shown Cau-

sation and Redressability.

Recognizing that global warming is real and already

causing injury-in-fact to Petitioners, Respondents do not

contest this element. Instead, they argue that because

U.S. motor vehicles are one of many sources of greenhouse

' gases, and action here by EPA might lower global emis-

sions by only a relatively small amount, Petitioners have

failed to show either causation or redressability.

Specifically, Respondents assert that Petitioners have

not demonstrated standing because they “failed to estab-

lish that the injuries they allege from global warming are

traceable to greenhouse gas emissions from new vehicles

in the United States - rather than to greenhouse gas

emissions from other sources in the United States, green-

house gas emissions from vehicles or other sources else-

where in the world, or entirely different factors —- and that

a decision to require regulation of emissions of greenhouse

gases from new motor vehicles in the United States would

redress their injuries.” Fed. Respondent Cert. Opp. at 12.

This challenge to Petitioners’ standing mischaracter-

izes both the injury shown by Petitioners and the science

of global warming. Global warming is not like the dam in

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which

either would be built, causing injury, or not. With global

warming, injury is a matter of degree. The issue is not

whether the earth will be hotter; it already is. The ques-

tion is how hot the earth will get. It is not whether the

seas will rise, or the glaciers will recede, or the ice caps

will melt; it’s how much. Petitioners’ injury does not turn

on whether global warming will reach some catastrophic

level. They are already injured and will suffer more injury

26

with each additional increment of human-induced global

warming.

The determinant in the “how hot?” and “how much?”

equation is the concentration level of greenhouse gases.

Greenhouse gases “act in a manner roughly equivalent to

adding a blanket over the earth.” JA 229 (MacCracken

Decl.). The thicker the blanket, the warmer the earth. Jd.

(“[t}he higher the concentrations of greenhouse gases,

especially CO,, CH, and N,O, the greater will be the

trapping of heat and the increase in surface tempera-

ture.”); see also C.A. Standing App. 233 (Oppenheimer

Decl.) (discussing the different consequences if atmos-

pheric concentration of CO, is stabilized at 400 parts per

million versus 450 parts per million).

Certain greenhouse gases linger in the atmosphere for

a very long time. Carbon dioxide, for example, “has a

residence time of roughly 50-200 years.” Pet. App. A-73. As

a result, emissions — and emission reductions — of carbon

dioxide are cumulative. If EPA acts now to reduce these

emissions from U.S. mobile sources, the achievable reduc-

tions in emissions will grow over time. In the end, the

effect of EPA action would be like removing a very thick

blanket from the earth’s atmosphere.

Alone, EPA action under Section 202 will not stop

global warming altogether. But EPA could mandate

emission reductions that reduce the concentration of

greenhouse gases in the atmosphere and thereby delay and

moderate, to a significant extent, the impacts of global

warming. See JA 225-226 (MacCracken Decl.) (“[a]chievable

~ reductions in CO, and other greenhouse gases from U'S.

motor vehicles would significantly reduce the build-up

in atmospheric concentrations of those gases and delay

and moderate many of the adverse impacts of global

27

warming.”); C.A. Standing App. 232 (Oppenheimer Decl.)

(“actions by the United States to reduce its emissions can

materially affect ambient levels of CO, and other GHGs in

the atmosphere.”). This is all that is necessary for stand-

ing under Article III.

Respondents rely heavily on an analogy to cases such

as Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976),

and ASARCO Inc. v. Kadish, 490 U.S. 605 (1989), for the

proposition that standing is lacking where a defendant is

responsible for only a part of a larger injury. This reliance

is misplaced. In each of those cases, the problem was not

the quantum of redress, but rather whether a court order

would bring redress at all.

In Lujan, for example, the plaintiffs asserted that

their interests in the preservation of endangered species

would be injured if agencies such as the Agency for Inter-

national Development (AID) could fund overseas projects

without consulting with the Secretary of the Interior about

potential impacts on endangered species. See Lujan, 504

U.S. at 562. A plurality of the Court concluded that re-

dressability was too speculative because of questions about

whether (1) agencies such as AID would be bound by an

order by the Secretary demanding consultation, (2) consul-

tation would lead to a decision by AID not to fund any

particular project, and (3) a decision by AID not to fund a

project would result in any modification to the project,

given that AID funding was “less than 10% of the funding”

for the project at issue. Jd. at 571. The plurality concluded

that, “[als in Simon, 426 U.S., at 43-44, it is entirely

conjectural whether the non-agency activity that affects

respondents will be altered or affected by the agency

activity they seek to achiéve.” Jd. -

28

No conjecture is required here. EPA has the power to

mandate significant reductions in greenhouse gas emis-

sions through the Section 202 authorization of “standards

applicable to the emission of any air pollutant from any

class or classes of new motor vehicles or new motor vehicle

engines.” 42 U.S.C. § 7521(a)(1).“ Any such action by EPA

would lower the concentration of greenhouse gases in the

atmosphere, reduce the greenhouse effect, and help

redress Petitioners’ injuries. No action by third parties

could plausibly stand in the way. While not necessary to

find standing here, the reality is that third parties beyond

EPA’s control — namely foreign governments and vehicle

manufacturers selling overseas — almost certainly will

follow EPA’s lead, greatly increasing the redress to Peti-

tioners. JA 239 (MacCracken Decl.); JA 244-245 (Walsh

Decl.).

* There is, of course, some level of uncertainty introduced by the

limited nature of the relief sought by Petitioners. Petitioners are not

asking for an order requiring EPA to regulate greenhouse gases under

Section 202. Rather, they seek a remand to EPA for the determination

required by Section 202: whether mobile sources of greenhouse gases

“cause, or contribute to, air pollution which may be reasonably antici-

pated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1).

While the science of global warming points to only one answer to this

question, it is possible that EPA could, on remand, decide that the

statutory standard is not met. This uncertainty stems from the

procedural nature of the right asserted by Petitioners in this case —

they are asking simply that EPA follow the mandatory procedures

established in Section 202. As this Court recognized in Lujan, Petition-

ers have standing to demand compliance with such procedures even if

they “cannot establish with any certainty” that following them will

result in EPA taking meaningful action to reduce greenhouse gas

emissions. Lujan, 504 U.S. at 573 n.7.

29

The stakes in this case are as concrete and momen-

tous as any the Court will face this Term. New York City

and Baltimore have shown that EPA has refused to follow

the plain language of the Clean Air Act and, in doing so,

exposed the cities and their inhabitants to severe injury

and a grave risk of a diminished future. The truth about

redressability is that if the United States is going to

seriously confront the problem of global warming, there is

no better place to begin than the transportation sector,

which constitutes a large and growing percentage of U.S.

greenhouse gas emissions. For these reasons, there can be

little doubt that this dispute is a “case or controversy”

under Article III.

+

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

TIMOTHY J. DOWLING*

DouGLAS T. KENDALL

JENNIFER BRADLEY

MARGUERITE MCCONIHE

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Ave. NW

Suite 502

Washington, D.C. 20036

(202) 296-6889

*Counsel of Record for the

Amici Curiae

August 2006

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