# Amicus Curiae Brief — Massachusetts v. EPA > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A39 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 549 U.S. 497 ## Text 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 -— —s COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 ae a ee t ? Ae fam if * ee a ee po =) irs _ ee Aw ‘oe eae sary Say eae ee 4s ae fa ~— ee PMs ee; ae am he ving Se = - ite Fee ioe . ........... 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) .... International Council for Local Environmental Initiatives, Green Power Options, (visited Aug. 28, 2006) .......... International Council for Local Environmental Initia- tives, U.S. Cities for Climate Protection Campaign, Green Fleets, (visited Aug. 28, 2006) ..... 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) ................... 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) ..............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) .. 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) ............... 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) ...... 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) ... 20, 21 U.S. DEPARTMENT OF STATE, U.S. CLIMATE ACTION REPORT 2002 (May 2002) (visited Aug. 28, 2006) ................0...c:ccccccseeeeees U.S. EPA, Green Book, 8-Hour Ozone, 8-Hour Ozone Nonattainment Area/State/County/Report (visited Aug. 28, 2006) . * See ICLEI, Green Power Options, . : 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, ; 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], . " 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), . “ 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), . 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), ; 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), . * 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), . * 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 . * 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, . 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), . * 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), . “ San FRANCISCO PuBLIC UTILITIES Comm’N, 2005 SFPUC WaTER QUALITY REPORT 4 (2006), . © 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),