Amicus Curiae Brief — Massachusetts v. EPA

4718 (op |

No. 05-1120 OCT 24 2006

IN THE

Supreme Court of the Anited States

—_—_———— -— —

COMMONWEALTH OF MASSACHUSETTS, ef ai..

Petitioners.

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ef al.,

Respondents.

—_— -- —

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR AMICUS CURIAE

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

_— ——+ —_—_—— =_

PETER S. GLASER DANIEL J. POPEO

CHRISTINE J. SOMMER PAUL D. KAMENAR

LYNNE C. RHODE Counsel of Record

TROUTMAN SANDERS LLP WASHINGTON LEGAL FOUNDATION

401 9th Street, N.W. 2009 Massachusetts Ave., N.W.

Suite 1000 Washington, D.C. 20036

Washington, D.C. 20004 (202) 588-0302

202) 274-2998 ; “ar

(ane) Attorneys for Amicus Curiae

DOUGLAS A. HENDERSON

TROUTMAN SANDERS LLP

600 Peachtree Street, N.E.

Suite 5200 |

Atlanta, GA 30308

(404) 885-3479

October 24, 2006

I DLE OI OEE A TT TE, AE EE aS AA te

WitSON-EPES PRINTING CO., INC. = (202) 789-0096 -— WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

Amicus curiae Washington Legal Foundation will

address the first question presented as set forth in the Brief

for Petitioner Commonwealth of Massachusetts, ef al.,

specifically:

1. Whether the Administrator of the Environmental

Protection Agency has authority to regulate air pollutants

associated with climate change under section 202(a)(1) of

the Clean Air Act, 42 U.S.C. 7521(a)(1).

ill

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES .........scssscsssssssessseeesssees iv

INTERESTS OF AMICUS CURIAE ..scccssssssssessssvees 1

SUMMARY OF ARGUMENT. ......sssscsssssessssseesssees 2

EELS oe SE 3

I. POTENTIAL GLOBAL CLIMATE

CHANGE HAS BEEN THE MOST

PROMINENT ENERGY AND

ENVIRONMENTAL ISSUE OF RECENT

YEARS ......... leon. Spiianaiiiahidaeediedaiienipenipeanenescesien 3

A. THE PUBLIC DEBATE................. 3

B. WHERE THE ISSUE STANDS

II. CONTRARY TO PETITIONERS’ CLAIM,

THIS CASE IS ABOUT-CONSIDERABLY

MORE THAN JUST VEHICLE TAILPIPE

TED: | serctinncritibthnsiabindibdaiuieicenen 11

III. CONGRESS CANNOT BE UNDERSTOOD TO

HAVE AUTHORIZED EPA TO REGULATE

ON A SUBJECT OF SUCH OVERRIDING

SOCIETAL IMPORTANCE AS GLOBAL

CLIMATE CHANGE WITHOUT HAVING

CLEARLY AND SPECIFICALLY

EXPRESSED ITS INTENTION TO DO SO .... 14

IPI TY sinccitscnipntcsinbdblantanenisininiinceonseninainscia 20

iV

TABLE OF AUTHORITIES

PAGE(S)

CASES

Adams Fruit Co. v. Barrett, 494 U.S. 638

CIID .xccccstvsceicsiisuniqnaipteinceniimiiidnlanielaasta anaes 18

ACLU v. FCC, 823 F.2d 1554 (D.C. Cir. 1987),

cert. denied, 485 U.S. 959 (1988) .............cccceeeee 18

Arizona v. California, 373 U.S. 546 (1962).............. 18

Chisom v. Roemer, 501 U.S. 380 (1991)..............0008 17

Chrysler v. Brown, 441 U.S. 281 (1979).....0.......00. 19

Connecticut Nat'l Bank v. Germain,

Fae Cy ly OT CO OOD cicrivtntitittnticasibaadiins 16, 17, 18

Envtl. Def. v. Duke Energy Corp.,

BO &. CE, BROCE covtiniscientinitgiaestemne |

Massachusetts v. EPA, 415 F.3d 50 (2005) .............. 4

FDA v. Brown and Williamson

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

Harrison v. PPG Industries, Inc., 446 U.S. 578

CF GID nccssoncvicscisesscitoninesseibibaiiledaidsiaianiniaeanmanil 17

Huffman v. Western Nuclear, Inc.,

GEG UB. GED CUD erccintsoscsnsnsigiicitinsiiciiatisimasiiana 2,12

Indus. Union Dept., AFL-CIO v. Am.

Petroleum Inst., 448 U.5.607 (1980) .......00..... 18

MCI Telecomm. Corp. v. AT&T Co.,

DAF UB. ZIG CIPO cersccccnigsisaciceetusncincihaantineiita 17

New York v. EPA, No. 06-1131 (D.C. Cir.),

per curiam order of Court of Appeals

(Bat. 13, BEDE) sccccccscscecsconsascosossnacsvercsnasosasosiens 11

Rapanos v. United States,

126 B. Ce, ZIG GOD vvcccescvsstsonintisncinsninianinaian l

Train v. NRDC, 421 U.S. 60 (1974)............cccccccecceee 14

' United States v. Robel, 389 U.S. 258 (1967) ............ 18

Union Elec. v. EPA,

ei ninecnsentsnencen 14

Whitman v. Am. Trucking Ass'ns,

SS SE 1,13

STATUTES AND RESOLUTIONS

Clean Air Act (“CAA”) CAA § 103(g)(1),

SL SS ee 16

~ CAA § 108(a), 42 U.S.C. § 7408(a)..cccccccsceceeeee 11, 12

CAA § 110(a), 42 U.S.C. § 7410(a)........0..ccccccceeeees 14

Rg all D> ae 16

RE” ol >. RE eee Ee 13

CAA § 172(c)(6), 42 U.S.C. § 7502(c)(6) ..........0.00. 13

CAA § 173(a)(1), 42 U.S.C. § 7503{a)(1) ........... 13

| oh) ae 13

CAA § 202(a), 42 U.S.C. § 7521(a).............002. 1, 11, 16

CAA § 202(g)-(i), 42 U.S.C. § 7521(g)-(i) Zecseeooe.-. 16

CAA § 302(h), 42 U.S.C. § 7602(h) ........0...00000.. 15, 16

CAA § 412 (note), 42 U.S.C. § 7651k (note) ........... 16

CAA § 602(e), 42 U.S.C. § 7671(e).........cccccceceeeees 16

CAA Title I, Part D, 42 U.S.C. §§ 7501-7509(a) ..... 16

CAA Title VI, 2 U.S.C. §§ 7671-7671(q)............00. 17

Energy Policy Act of 1992, Title XVI,

| 9

Energy Security Act of 1980 § 711,

ES a 9

vi

Food and Agriculture Act of 1990, Title XXIV,

FS S| 8 eRe 7)

Global Change Research Act of 1990,

15 U.S.C. §§ 2931-2938... eeeeeees pucsasnesueoaee 9

Global Climate Protection Act of 1987,

re Oe I I cichpteniticsintcsinsincinciinbetnaenines )

National Climate Program Act of 1978,

a ena Se I iidchtinncictesaiieninnnsbiingitinianianen )

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Approriations Act, 1999, Pub. L. No. 105-276,

112 Stat. 2461, 2496 (1998)... ce ceeeseedereeeees 10

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Approriations Act, 2000, Pub. L. No. 106-74,

213 Seat. 1067, 1OBD CIDP)... cccrcccecssecossercrecceees 10

Departments of Veterans Affairs and Housing and

Urban Development, and Independent Agencies

Approriations Act; Energy and Water

Development Appropriations Act, 2001,

Pub. L. No. 106-377, 114 Stat. 1141, 1441A-41

United Nations Framework Convention on Climate

Change, May 9, 1992, S. TREATY Doc No. 102-38

t.. By ft ks Se 9

LEGISLATIVE HISTORY :

151 CONG. REC. $7029 (2005)..........cccsesccssseeseseseeees 9

S. EXEC. REP. NO. 102-55 (1992).......cccccceeceesseeeeeeeees 10

Vil

Hearings Before the Senate Comm. on Energy

and Natural Resources, 100th Cong., 2d Sess.

(1988) (Testimony of James Hansen,

I aii ccenreenipclahisnadianieniinineiiiinialinie 8

Hearings Before the Senate Comm. on Clean

Air and Nuclear Regulation of the Senate Comm.

on Environment and Public Works, 103d Cong.,

2d Sess. (1994) (Testimony of Robert

Sussman, EPA Deputy Administrator) ............... 3

Hearings Before the Senate Comm. on Energy

and Natural Resources, 106th Cong., Ist Sess. (1999)

(Testimony of Jay Hakes, ELA Administrator)... 6

A Legislative History of the Clean Air

Act Amendments of 1970, 93d Cong..,.

2d Sess. (Comm. Print 1974) .00.0........eccceeeeeeeee 15

REGULATIONS

Control of Emissions from New Highway

Vehicles and Engines, 68 Fed. Reg. 52,922

NI ic SN cicindintdeecintprecnnciices tncpthincenapneeniiiintin 4,12

OTHER MATERIALS

AN INCONVENIENT TRUTH (Paramount Classics

and Participant Productions 2006).................... 8

Box Office Report website,

http://www. boxofficereport.com.................:0:00+ 8

Stephen Brown, “Dispelling The Myth of a Cost-Free

Global Warming Treaty,” National Center

for Policy Analysis, Brief Analysis 298

SEE, NUE ichiidhchiiensccincitpasitigncinianianicsnieniieniaieiiia 6

Comments of the Working Group to Oppose

Expanded EPA Authority, November 29, 1999.. 6

Viil

Commission on Presidential Debates,

October 8, 2004 Debate Transcript .................... 8

Environmental Protection Agency, Policy Options

For Stabilizing Global Climate Change, Final

Report to Congress, Office of Policy, Planning,

and Evaluation, PM221 (1990)... 15

Felix Frankfurter, Some Reflections on

the Reading of Statutes, 47 COLUM. L. REV.

TT ITUTEEE siiipstehdchiechiitelbtsceitibpcbpcenigipaietitathie atanindinaenin 17

Ernest Gellhorn and Paul Verkuil, Controlling

Chevron-Based Delegations, 20 CARDOZO L.

a, Se ncsenantpnnscianiiitnptnitenitiiduintiaipeka 17

International Panel on Climate Change,

Climate Change: Mitigation (2001)............. 6, 7,19

Kyoto Protocol To The United Nations

Framework Convention on Climate Change,

8 ek een 10

John J. Manning, The Nondelegation Doctrine

as a Canon of Avoidance, 2000 Sup. CT. REV.

Ee E ccciertnsicscacntenttimnnrcinntcinimnanduniniiinintiiablnts 19

Peter S. Glaser, EPA 's Latest Maneuvers On

“Global Warming” Legally Suspect (WLF Legal

Backgrounder, Nov. 3, 2000) ...........cccceseseeeeees 2

Gerald H. Yamada, EPA Lacks Authority To Regulate

Carbon Dioxide Emissions (WLF Legal Opinion

IE, GE, Biles HED ddcnrevcdcicescetencesnuthiusen 2

National Research Council, Climate Change

Science: An Analysis of Some of

the Key Questions (2001) ..........ccccccccseeeeneeeeeees 5

National Resources Defense Council website,

http://www.ndrc.org/global Warming/default.asp 4

ix

THE DAY AFTER TOMORROW

CAI ae WINN CIID ccisdintrecceccccsencecusssesevsooses

Webster’s Seventh New Collegiate

Se Cire atnliesiedindnitnentenideincsitensssechiintestctnnssies

Wharton Economic Forecasting Associates, Inc.,

Global Warming: The High Cost of the

Kyoto Protocol, National and State Impacts

Saal skesiasninishesiahdiaeheiebtaaibimaplansaantnipieediiebibinatiesmrsiin

INTERESTS OF AMICUS CURIAE

The Washington Legal Foundation (““WLF”) is a

national, non-profit public interest law and policy center

based in Washington, D.C., with supporters nationwide.

WLF’s supporters include consumers, businesses, and

property owners who are adversely affected by excessive

regulation of their activities under various environmental

statutes such as the Clean Air Act (“CAA”) and Clean Water

Act.

Over the years, WLF has filed amicus briefs in this

Court and lower federal courts opposing the federal

government's assertion of regulatory and enforcement

authority over certain environmental and health matters. See,

e.g., Rapanos v. United States, 126 S. Ct. 2208 (2006);

Whitman v. Am. Trucking Assn’s, Inc., 531 U.S. 457 (2001);

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120

(2000); Envtl. Def v. Duke Energy Corp., cert. granted, 126

S. Ct. 2019 (2006).

More particularily, WLF appeared as amicus in the

court of appeals below in the instant case as am outgrowth of

WLF’s opposition to a 1999 citizen petition filed with the

EPA by a group of organizations led by the International

Center for Technology Assessment (“ICTA”) seeking

regulation of greenhouse gas (“GHG”) emissions from new

motor vehicles under CAA § 202(a), 42 U.S.C. § 7521. WLF

successfully argued in its 47-page filing that EPA should

deny ICTA’s petition for rulemaking both because the CAA

All parties have consented to the filing of this brief. Their

consents are on file with the Clerk of the Court. Pursuant to

Supreme Court Rule 37.6, WLF states that no counsel for a party

authored this brief in whole or in part and that no person or entity,

other than WLF and its counsel, contributed monetarily to the

preparation and submission of this brief.

was not intended to apply to emissions of GHGs and because

there was a lack of evidence showing a risk to human health

and welfare from anthropogenic GHG emissions. Moreover,

any such regulation would impose excessive and

unnecessary costs on our society and economy.

In addition, WLF’s Legal Studies Division has

produced numerous studies, reports, and monographs

concerning EPA's excessive and questionable regulations

and enforcement practices and policies. See, e.g., Yamada,

EPA Lacks Authority To Regulate Carbon Dioxide Emissions

(WLF Legal Opinion Letter, Oct. 30, 1998); Glaser, EPA ’s

Latest Maneuvers On “Global Warming” Legally Suspect

(WLF Legal Backgrounder, Nov. 3, 2000).

While WLF agrees with all the arguments presented

by the EPA in this case as to why the judgment of the court

of appeals should be affirmed, including Petitioners’ lack of

standing, WLF will focus its brief on the administrative law

and related public policy issues as it did in the court of

appeals.

SUMMARY OF ARGUMENT

In FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000), in determining whether Congress intended

to regulate tobacco products under the Food, Drug and

Cosmetic Act, the Court observed that “we must be guided

by a degree of 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.” /d. at 133. The Court’s reliance on common sense

interpretation applies with particular force to potential

regulation of carbon dioxide (“COQ 2”) and other- GHGs.

Tobacco regulation pales as a matter of social and economic

importance in comparison with regulation of GHGs because

carbon-based fuels are at the heart of our economy and the

way we live our lives. Indeed, potential global climate

change and GHG regulation have become the seminal energy

and environmental issue of recent years. It is extremely

unlikely that Congress authorized regulation in an area of

such importance without explicitly saying so and without

creating a legislative record reflecting so momentous a step.

ARGUMENT

I. POTENTIAL GLOBAL CLIMATE CHANGE

HAS BEEN THE MOST PROMINENT ENERGY

AND ENVIRONMENTAL ISSUE OF RECENT

YEARS.

A. The Public Debate.

The claim that human activity is changing the global

climate has unquestionably been the most prominent issue at

the intersection of American energy and environmental

policy in recent years. No other issue engenders such

extreme predictions of global environmental damage as are

made by those who advocate the necessity of GHG controls.

At the same time, because significant cuts in GHG emissions

would require substantial reductions in the use of fossil fuels

such as oil, coal and natural gas even as the economy

continues to grow, no other issue creates economic and

social challenges of such magnitude. For instance, EPA has

observed both that (1) climate change is “perhaps the biggest

environmental threat to the planet’”” and (2) “i]t is hard to

imagine any issue in the environmental area having greater

Hearings Before the Subcomm. on Clean Air and Nuclear

Regulation of the Senate Comm. on Environment and Public

Works, 103d Cong., 2d Sess. (April 14, 1994) (testimony of

Robert Sussman, EPA Deputy Administrator).

‘economic and political significance’ than regulation of

activities that might lead to global climate change.”

The briefing in this case illustrates the dramatic

nature of claimed global climate change damages. For

instance, relying on out-of-context statements from various

scientific reports, various amici here warn of unprecedented

temperature increases, polar ice cap melting, rising sea levels

inundating coastal communities, killer storms combined with

devastating drought, huge losses of species, epidemic

diseases, and the like. See Amici Curiae briefs of Climate

Scientists, North Coast Rivers Alliance, ef a/., and Wildlife

Conservation Interests. These assertions mirror similar

statements often made by various members of the Petitioners

_ group.’

The claim that there is a scientific “consensus” on the

likely dire consequences of continued GHG emissions is

vigorously contested by many in the scientific community.

The Court is referred to the November 29, 1999 comments

filed with EPA in this proceeding by the Working Group to

Oppose Expanded EPA Authority containing a detailed

summary of the state of the science. Additionally, EPA, in its

denial of the underlying Petition for Rulemaking, concluded

that the scientific consensus claimed by Petitioners does not

exist and that considerable uncertainty remains on key

scientific questions. The lead opinion below rejected

Petitioners’ contention that EPA’s conclusions in this regard

are arbitrary. Massachusetts v. EPA, 415 F.3d 50, 57-58

> Control of Emissions from New Highway Vehicles and Engines,

68 Fed. Reg. 52,922, 52,928 (Sept. 8, 2003).

* For instance, Petitioner NRDC’s website warns of “dangerous

consequences: drought, disease, floods, lost ecosystems . .

sweltering heat to rising seas . . . [t]he polar ice cap is shrinking

fast.” Nrdc.com, Global Warming, http://www.nrdc.org/global

warming/default.asp.

(D.C. Cir. 2005). Citing the National Research Council

(“NRC”) report Climate Change Science: An Analysis of

Some of the Key Questions (2001), EPA said:

As the NRC noted in its report, concentrations

of GHGs are increasing in the atmosphere as

a result of human activities (pp. 9-12). It also

noted that “[a] diverse array of evidence

points to a warming of global surface air

temperatures” (p. 16). The report goes on to

state, however, that “[bJecause of the large

and still uncertain level of natural variability

inherent in the climate record and the

uncertainties in the time histories of the

various forcing agents (and particularly

aerosols), a causal linkage between the

buildup of greenhouse gases in_ the

atmosphere and the observed climate changes

during the 20th century cannot be

unequivocally established.”

68 Fed. Reg. at 52,930.

Noting “{t]he science of climate change is

extraordinarily complex and still evolving,” EPA listed the

numerous areas of continuing uncertainty identified by the

NRC. According to EPA, “these uncertainties limit. our

ability to assess each of these factors and to separate out

those changes resulting from natural variability from those

that are directly the result of increases in anthropogenic

GHGs.” Id.

The economic side of the issue prompts equal

controversy, because significantly reducing GHG emissions

would be an extraordinary societal undertaking. CO, the

principal human-produced GHG, is the unavoidable by-

product of combusting fossil fuels, and fossil fuels are, by

far, the largest source (70 percent) of energy in America. Jd

at 52,928. As the Intergovernmental Panel on Climate

Change (“IPCC”), a source on which Petitioners rely in their

brief, has noted, “[e}missions of GHGs are associated with

an extraordinary array of human activities.” IPCC, Climate

Change 2001: Mitigation (“IPCC 2001”), at 608, available

at http://www.ipee.ch/. The United States Energy

Information Administration (“EIA”) reached the same

conclusion: “there are a vast number of entities that emit

carbon — homes, factories, vehicles, commercial facilities,

and other agricultural resources unlike [for instance] the

relatively few electricity generators covered by the SO,

reduction program in the first phase.” Hearings Before the

Senate Comm. on Energy and Natural Resources, 106th

Cong., Ist Sess. (March 25, 1999) (testimony of Jay Hakes,

EIA Administrator). According to EPA, “[v]irtually every

sector of the U.S. economy is either directly or indirectly a

source of GHG emissions.” 68 Fed. Reg. at 52,928. Because

significantly controlling carbon emissions would entail

fundamental changes to our economy and the way we live, a

variety of authorities have concluded that the cost of such

controls would be massive.”

* With respect to the cost of complying with the Kyoto Protocol,

see Wharton Economic Forecasting Associates, Inc., Global

Warming: The High Cost of the Kyoto Protocol, National and

State Impacts, 1998 (loss of 2.4 million jobs; annual loss of $300

billion in U.S. GDP). A study by Stephen Brown, senior

economist at the Federal Reserve Board, determined that in order

to meet the emissions cuts of Kyoto, U.S. domestic consumption

would be reduced by 25 percent, the equivalent of stopping all

highway, rail, air and sea traffic permanently. Both documents are

cited and discussed in WLF’s comments in the record of the EPA

proceedings below. See November 29, 1999 comments filed by

Working Group to Oppose Expanded EPA Authority in the record

of this case.

7

Global climate change also differs fundamentally

from other energy and environmental issues the U.S. faces.

According to the IPCC, “[t]he global nature of the problem

. . . Implies that the full breadth of human social structures is

encompassed.” IPCC 2001, at 607. The IPCC notes:

A combination of several features lends the

climate problem its uniqueness. They include

public good issues arising from _ the

concentration of GHGs in the atmosphere that

requires collective global ction, the

multiplicity of decision makers ranging from

global down to the micro level of firms and

individuals, and the heterogeneity of

emissions and their consequences around the

world. Moreover, the long-term. nature of

climate change originates from the fact that it

is the concentration of GHGs that matters

rather than their annual emission and _ this

feature raises the thorny issues of

intergenerational transfers of wealth and

environmental goods and bads. Next, human

activities associated with climate change are

widespread, which- makes narrowly defined

technological solutions impossible, and the

interactions of climate policy with broad

socioeconomic policies are strong. Finally

large uncertainties or in some areas even

ignorance characterize many aspects of the

problem and require a risk management

approach to be adopted in all [decision-

making frameworks] that deal with climate

change.

Id. at 66.

For these reasons, potential global climate change has

been a prominent feature of public discourse and policy

debate for many years. The matter assumed central

importance with widely reported Congressional testimony by

NASA scientist James Hansen in 1988 as to a potentially

runaway greenhouse effect, Hearings Before the Senate

Comm. on Energy and Natural Resources, 100th Cong, 2d

Sess. 39 (1988), and the formation that year of the IPCC. To

date, global climate change has probably been the subject of

more than two hundred hearings and briefings before various

congressional committees. Regulatory and non-regulatory

legislation on the subject has been introduced in Congress —

yearly since the late 1980s. It is a topic debated in the last

three presidential elections, and was raised in the debates

between President Bush and Senator Kerry. Commission on

Public Debates, October 8, 2004 Debate Transcript. Global

climate change is now a widely discussed topic in books,°

magazines, ’ the internet® and even the movies.

° The term “global warming” yields 19,283 hits in a search of

books on Amazon.com (Oct. 13, 2006).

’ Based on a search of the Nexis Mega news file, 880 articles

were published with the term “global warming” in their titles in

the last thirty days (Oct. 16, 2006).

* The term “global warming” yields about 50,200,000 hits on

Google (Oct. 13, 2006).

% See An Inconvenient Truth (Paramount Classics and Participant

Productions 2006), a highly publicized documentary still in

theaters. The film The Day After Tomorrow (20th Century Fox

2004) dramatizing sudden climate change was the fifth highest

box office film of 2004. boxofficereport.com, Http://www.box

officereport.com (last visited Oct. 18, 2006).

’ 9

B. Where the Issue Stands Today.

Given the prominence of the global warming issue to

date, there ought to be no dispute as to where the debate

stands today in terms of Congressional action. The record of

Congressional action on global climate change is detailed in

Respondents’ brief. As shown by Respondents, Congress has

consistently rejected proposals to require or even authorize

mandatory controls on GHG emissions, most recently in the

current Congress. See, e.g., 151 CONG. REC. $7029 (daily ed.

June 23, 2005) (Senate rejection of S.A. 826, the so-called

McCain-Lieberman bill). Instead, Congress has enacted

several statutes mandating scientific research and calling for

negotiations to develop an international framework for

addressing climate change globally.'°

_ These international negotiations have not resulted in

the United States agreeing to GHG emission reductions.

International negotiations first were mandated by Congress

almost two decades ago in the Global Climate Protection Act

of 1987. In 1992, President George H. W. Bush signed, and

the Senate approved, the United Nations Framework

Convention on Climate Change (“UNFCCC”), which

brought together a coalition of countries for a coordinated

approach to climate change. United Nations Framework

Convention on Climate Change, May 9, 1992, S. TREATY

Doc No. 102-38 (1992), 1771 U.N.T.S. 107.

'° See National Climate Program Act of 1978, 15 U.S.C. §§ 2901-

2908, ef seq.; section 711 of Energy Security Act of 1980, Pub. L.

No. 96-294; Global Climate Protection Act of 1987, 15 U.S.C. §

2901 note; Global Change Research Act of 1990, 15 U.S.C. §§

2931-2938; Title XXIV of the Food and Agriculture Act of 1990,

Pub. L. No. 101-624, § 2401; Title XVI of the Energy Policy Act

of 1992, Pub. L. No. 102-486.

10

The UNFCCC did not mandate emission reductions

by the United States or any other countries. Instead, the

“shared understanding” of the Executive Branch and the

Senate when the Senate gave its advice and consent to

ratification was that the UNFCCC did not impose “legally

binding targets and timetables for reducing emissions of

greenhouse gases.” S. EXEc. REP. No. 102-55, at 14 (1992).

Nevertheless, the United States has been actively

involved in international activities under the UNFCCC to

address global climate change. Negotiations led to the Kyoto

Protocol in December 1997, which called for mandatory

GHG emissions reductions by developed nations. Kyoto

Protocol to the United Nations Framework Convention on

Climate Change, Dec. 11, 1997, 37 I.L.M. 22. In a resolution

addressing the Protocol, the Senate formally expressed

misgivings over the prospect that the economic burdens of

GHG reductions would be shouldered exclusively by

developed nations, S. Res. 98, 105th Cong. (1997) (resolving

by vote of 95-0 to urge the President not to sign any

agreement that would result in serious harm to the economy

or that did not include commitments regarding GHG

emissions by developing nations). Although President

Clinton signed the- Protocol, he did not present it to the

Senate for advice and consent to ratification. Thereafter,

Congress enacted annual legislation affirmatively barring

EPA from implementing the Protocol. See Pub. L. No. 105-

276, 112 Stat. 2461, 2496 (1998); Pub. L. No. 106-74, 113

Stat. 1047, 1080 (1999); Pub. L. No. 106-377, 114 Stat.

1141, 1441A-41 (2000).

At present, the global climate change issue remains

highly controversial and a matter of intense public debate.

Nevertheless, the fact that the United States has not ratified

the Kyoto Protocol or enacted legislation mandating GHG

emission controls means that, to date, our country has

affirmatively elected not to require such controls.

11

IL. CONTRARY TO PETITIONERS’ CLAIMS,

THIS CASE IS ABOUT CONSIDERABLY

MORE THAN JUST VEHICLE TAILPIPE

EMISSIONS. ‘

Petitioners seek to minimize the importance of this

case by characterizing it as concerning only GHG emissions

from new motor vehicles. Pet’rs Brief at 28. In reality, the

determination they seek, that EPA must regulate GHG

emissions under that section, could trigger a massive GHG

regulatory program because it could require that EPA adopt

regulations affecting virtually any source that emits GHGs in

non-trivial amounts. This is because, as Petitioners

recognize, the triggering language they rely on in CAA §

202(a) (“emission of any air pollutant ... which in his [the

EPA Administrator’s] judgment cause, or contribute to, air

pollution which may reasonably be anticipated to endanger

public health or welfare”) is identical to triggering language

for a host of other CAA regulatory programs. Pet’rs Brief at

35 (“...the trigger for much of the regulatory action that

occurs under the Act is the endangerment of public health or

welfare”). Indeed, a lawsuit seeking to compel EPA to set

GHG New Source Performance Standards for new or

modified stationary sources already has been filed and was

stayed pending the outcome of the Court’s decision here. See

New York v. EPA, No. 06-1131 (D.C. Cir.), per curiam order

of Court of Appeals (Sept. 13, 2006).

The most far-reaching regulatory program that could

result if the Court were to accept Petitioners’ reading of the

CAA is promulgation of a National Ambient Air Quality

Standard (“NAAQS”) for CO). Petitioners claim that a CO,

NAAQS would not necessarily be required under their

reading of the CAA because the endangerment finding is

only one of three findings required to trigger promulgation of

a NAAQS under CAA § 108(a), 42 U.S.C. § 7408(a). Pet’rs

12

Brief at 28-29. But Petitioners do not contest that the second

finding (presence of the pollutant in the ambient air resulting

from “numerous or diverse mobile or stationary sources”)

would be purely ministerial for CO2. And while they seem to

suggest that the third finding (the Administrator “plans to

issue air quality criteria under this section”) might leave

discretion in the Administrator to decline to issue NAAQS

for CO, they do not actually take that position. Pet’rs Brief

at 29. Assuming the Administrator made the first two

findings, it is hard to understand how he could then decide

not to issue air quality criteria initiating the NAAQS-setting

process.

A NAAQS program for CO) would be completely

unworkable. Despite Petitioners’ attempt in a footnote to

argue that CO. NAAQS attainment issues would be no

different than attainment issues for other NAAQS that are

affected by international emissions, id at 29 n. 19, CO,

attainment issues in fact would be far different than those for

any other pollutant. Unlike other pollutants subject to

NAAQS, CO, circulates and is well-mixed in the global

atmosphere. Hence, a ton of CO, emitted in, for instance,

Bangladesh, has the same effect on concentrations over

Boston as a ton emitted in Boston. Since the United States

emits only about 25 percent of total global anthropogenic

CO, emissions, and since this percentage is projected to

decline in the future as the Third World continues to

develop, there is nothing any state or group of states can do

to affect CO» concentrations within their borders. As a result,

as EPA found, the entire NAAQS program — including the

establishment of NAAQS, the designation of attainment and

nonattainment areas, the submission of State Implementation

Plans, and the regulatory apparatus for maintaining

attainment areas and bringing nonattainment areas into

compliance — would be a gigantic exercise in futility for

CO. 68 Fed. Reg. at 52,926-27. Cf Huffman v. Western

Nuclear, Inc., 486 U.S. 663, 673 (1988) (Congress should

13

not be presumed to provide regulatory authority to an agency

_ “to impose restrictions that [are] somehow calculated to

serve [an] unattainable goal”’).

Despite its futility, a CO. NAAQS program would

significantly affect almost every aspect of the American

economy. As this Court stated, “[t]he NAAQS .. . are the

engine that drives nearly all of Title | of the CAA... .”

Whitman, 531 U.S. at 468. Suppose on the one hand that the

CO, NAAQS is set at a level below current ambient

concentrations, with the result that the entire United States

would be a non-attainment area. Every. state would then be

required to submit a nonattainment plan demonstrating the

control measures it intends to adopt to bring the state into

attainment by a date certain. CAA § 172, 42 U.S.C. § 7502,

and particularly CAA § 172(c)(6), 42 U.S.C. § 7502(c)(6).

Despite the fact that the states would be powerless to attain

the NAAQS, they would face the loss of federal highway

funding by failing to do so. CAA § 179, 42 U.S.C. § 7509.

Nonattainment across the United States would also preclude

the construction or modification anywhere in the country of

major stationary sources, such as manufacturing plants,

electric generating plants, and other industrial facilities.

Under CAA § 173(a)(1), 42 U.S.C. § 7503(a)(1), major

stationary sources cannot be built unless they obtain

sufficient offsets to ensure that that the nonattainment area

makes reasonable further progress towards attainment. This

of course would be a practical impossibility for a CO,

NAAQS because, with every nonattainment area in the

country required to make actual emission reductions, no

offsets would be available.

Suppose on the other hand that the CO; NAAQS is

set at a level below current ambient concentrations and

therefore no state is in nonattainment. Nevertheless, every

state would be required to submit state implementation plans

setting forth measures ensuring continued achievement of the

14

standard. CAA § 110(a), 42 U.S.C. § 7410(a). Presumably,

this would mean that the states would be required to offset

the global growth in emissions, again a_ practical

impossibility.

In sum, Petitioners are more than a little disingenuous

in contending that the relief they seek is limited to motor

vehicles and therefore would not trigger massive

consequences throughout the economy. In reality, if EPA has

authority and an obligation to regulate GHGs under Title II,

it has the same authority and obligation to do so under Title

I. Regulation under Title I would necessarily result in a huge

regulatory program, as EPA and the states struggled with the

impossible task of attaining or maintaining the NAAQS.

Train v. NRDC, 421 U.S. 60, 86 (1974) (“Congress intended

to impose national ambient air standards to be attained

within a specific period of time.”); Union Elec. v. EPA, 427

U.S. 246, 249-50 (1975) (CAA is designed to “guarantee

prompt attainment and maintenance of specific air quality

standards.”’).

Ill. CONGRESS CANNOT BE UNDERSTOOD TO

HAVE AUTHORIZED EPA TO REGULATE ON

A SUBJECT OF SUCH OVERRIDING

SOCIETAL IMPORTANCE AS GLOBAL

CLIMATE CHANGE WITHOUT HAVING

CLEARLY AND SPECIFICALLY EXPRESSED

ITS INTENTION TO DO SO.

Given the history of the global climate change debate

in the United States, Petitioners’ contention that there has

been latent authority in the CAA since 1970 to adopt a

massive GHG control program is not credible. It seems to be

Petitioners’ view that, despite wide public discourse of the

issue for many years, the regulatory authority GHG

advocates have loudly but unsuccessfully called for, in fact

existed all along lying dormant and unnoticed until recently

15

discovered. Indeed, it seems to be Petitioners’ view that this

long-sought regulatory authority was hiding in plain sight in

the CAA, a statute minutely dissected through the years by

legislators and lawyers, both in the comprehensive CAA

amendments of 1977 and 1990 and in seemingly endless

litigation in this and other courts. However, it is implausible

in the extreme that the GHG regulatory authority that

Petitioners now maintain is “straightforward” on the face of

the CAA, Pet’rs Brief at 2, was overlooked by so many for

so long. In fact, when asked by Congress for a complete list

of policy options for addressing global climate change, EPA

in 1990 produced a comprehensive report that nowhere

mentioned pre-existing CAA authority to regulate GHG

emissions for climate change purposes. EPA, Policy Options

for Stabilizing Global Climate Change, Final Report to

Congress, Office of Policy, Planning, and Evaluation,

PM221 (1990).

Equally implausible is the legislative mechanism

Petitioners claim as the source of this far-reaching but, until

recently, overlooked authority. Petitioners claim that

Congress in 1970 authorized EPA to restrict GHG emissions

simply by redesigning the CAA § 302(h), 42 U.S.C. §

7602(h), list of “welfare” effects to include effects on

“climate.” Pet’rs Brief at 15. See also CAA § 302(h),

reprinted in A Legislative History of the Clean Air Act

Amendments of 1970, 93d Cong., 2d Sess. (Comm. Print

1974). Congress, however, when it added this language, did

not evince any understanding that, by doing so, it was

authorizing the massive regulatory program Petitioners now

seek to mandate.'' There was no debate in Congress in 1970

'' Moreover, there is no textual basis to assume that Congress in

1970 necessarily understood the term “climate” to refer to a global

climatological phenomenon such as global climate change, as

opposed to local climate conditions affected by local pollutant

emissions. See Webster’s Seventh New Collegiate Dictionary

(1969) (“Climate” is “the average course or condition of the

16

surrounding the new wording; no GHG or climate program

enacted into the CAA at the time or thereafter to accompany

the new wording; and no explanation by Congress of its

intent in amending the CAA § 302(h) language. Surely, to

quote Justice Stevens in another context, “[i]f Congress had

intended such a significant change . . ., some indication of

this purpose would almost certainly have found its way into

the legislative history.” Connecticut Nat'l Bank v. Germain,

503 U.S. 249, 255 (1992) (Stevens, J., concurring).

Indeed, nowhere in the mammoth text of the CAA,

including CAA § 202(a), is there any explicit grant of

authority to regulate GHGs or CO) The term “carbon

dioxide” is mentioned exactly one time in the entire codified

version of the Act, in a non-regulatory provision mandating

research and study. CAA § 103(g)(l), 42 US.C. §

7403¢g)(1). See also, the reference to CO; in CAA § 821

requiring “monitoring” rather than regulation.'? The term

“global warming” is likewise mentioned but once in the Act,

in CAA § 602(e), 42 U.S.C. § 767la, directing the

Administrator to examine the global warming potential of

certain listed substances that contribute to stratospheric

ozone depletion. Such direction, however, is accompanied by

the admonition that it “shall not be construed to be the basis

of any additional regulation under the [CAA].” By contrast,

at this point in time, more than thirty years into

implementation of the modem CAA as enacted in 1970,

every air pollutant that EPA regulates for mobile sources

under CAA § 202(a) is subject to a specific program tailored

for the control of such pollutant under CAA §§ 202(g)-(i), 42

U.S.C. § 7521. The statute also lists literally hundreds of

other pollutants designated for control. See CAA Title 1, Part

weather af a place over a period of years as exhibited by

temperature, wind velocity, and precipitation.” (emphasis added)).

'2 Section 821 is uncodified and appears as a note to CAA § 412,

42 U.S.C. § 7651k.

17

D, 42 U.S.C. §§ 7501-7509a, for specific regulatory

requirements for six listed criteria pollutants; CAA § 112, 42

U.S.C. § 7412, establishing a detailed regulatory scheme for

190 listed hazardous air pollutants; and CAA Title VI, 42

U.S.C. §§ 7671-7671q, providing a regulatory scheme for 53

ozone-depleting substances.

As Justice Frankfurter observed, in interpreting a

statute, “[o]ne must . . . listen attentively to what it does not

say.” Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 COLUM. L. REV. 527, 536 (1947), quoted in

Connecticut Nat'l Bank, 503 U.S. at 255 (Stevens, J.,

concurring). What one hears when one listens to the CAA for

an expression of Congressional intent to regulate on a matter

of such significance as global climate change is nothing

more than the silence of the “watchdog [that] did not bark in

the night.” Harrison v. PPG Industries, Inc., 446 U.S. 578,

602 (1980) (Rehnquist, J., dissenting, guoted in Chisom v.

Roemer, 501 U.S. 380, 396 n.23 (1991).

Under basic principles of administrative law, the

1970 legislative language on which Petitioners rely is too

thin a reed to support a GHG regulatory program. Legislative

delegations of authority to administrative agencies into new

subject areas must be made clearly, and the more important

the issue, the clearer the delegation should be. MC/

Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 231-232

(1994); see also Emest Gellhorn and Paul Verkuil,

Controlling Chevron-Based Delegations, 20 CARDOZO L.

REV. 989, 1008 (1999) (“The more significant the question

and the greater the impact the expansion of the agency’s

jurisdiction is likely to have, the greater the likelihood that

Congress did not intend implicitly to delegate that

determination to an agency.”). As the Supreme Court said of

a legislative delegation in an area of considerably less

national and international import than global climate change, .

had Congress intended to legislate in an important public

18

policy area, “it would have done so in clear and unequivocal

terms,” as it had in other provisions of the legislation.

Arizona v. California, 373 U.S. 546, 581 (1962). See also

Adams Fruit Co. v. Barrett, 494 U.S. 638, 644 (1990)

(“[h]ad Congress intended to limit further the availability of

AWPA relief based on the adequacy of state workers’

compensation remedies, it would have made that purpose

clear. . . .”); Connecticut Nat'l] Bank, 503 U.S. at 255

(Stevens, J., concurring). Similarly, as this Court has said, in

cases involving assertions of agency power into new arenas,

“courts should perform a close and searching analysis of

congressional intent, remaining skeptical of the proposition

that Congress did not speak to such a fundamental issue.”

ACLU vy. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir. 1987),

cert. denied, 485 U.S. 959 (1988).

The reason courts demand clear legislative

authorizations forthe extension of agency authority into new

arenas derives from the proper role of administrative

agencies in our system of government. As Justice Rehnquist

remarked in a similar context, Congress, not an agency, is

“the governmental body best suited and most obligated to

make the choice confronting us in this litigation.” /ndus.

Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607,

672 (1980) (Rehnquist, J., concurring in the judgment).

Justice Brennan likewise concluded that “Congress has the

resources and the power to inform itself, and is the

appropriate forum where the conflicting pros and cons

should have been presented and considered.” United States v.

Robel, 389 U.S. 258, 276 (1967) (Brennan, J., concurring in

the result). According to Justice Brennan, “[flormulation of

policy is a legislature’s primary responsibility, entrusted to it

by the electorate . . . ‘without explicit action by lawmakers,

decisions of great constitutional import and effect would be

relegated by default to administrators who, under our system

of government are not endowed with authority to decide

them.’” /d. An agency that seeks to regulate in a new arena

19

of social or economic activity without a plain and explicit

statutory authorization to do so usurps the constitutional role

of Congress to promulgate policy in the first instance. John J.

Manning, The Nondelegation Doctrine as a Canon of

Avoidance, 2000 Sup. CT. REV. 223, 276-77 (2000) (“If

Congress has addressed a subject, but has done so in a

limited way, this fact itself may suggest that Congress has

gone as far as the enacting coalition wished to, on the subject

in question. If the Court permitted ... [the agency] to go

further under ... [the Act’s}] general authority, such action

might disturb the more precise policies adopted by Congress

through bicameralism and presentment.” footnotes omitted).

These principles have special application to the

potentially significant restrictions on how this country uses

energy that are involved with the global climate change

issue. If, as the IPPC says, measures addressing global

climate change must encompass the “full breadth of human

social structures,”'? it must be Congress, not EPA, that

decides the matter.

In this case, the actions by Congress, after long

debate, to address potential global climate change through

scientific research and international negotiations, and to

resist calls for mandatory regulation of GHG emissions,

reflect a political and policy decision not to regulate, which

carefully balances economic interests, scientific

uncertainties, and energy/environmental concerns. For better

or worse, depending on one’s view of the issue, where

Congress has so far chosen to stand marks the place where

“opposing social and political forces have come to rest.”

Chrysler v. Brown, 441 U.S. 281, 313 (1979). EPA acted

properly in this case in not asserting power it does not have

to upset Congress’ decision.

'? IPCC 2001, at 607.

20

CONCLUSION

For the foregoing reasons, the judgment of the court ~

of appeals should be affirmed.

Respectfully submitted,

Peter S. Glaser Daniel J. Popeo

Christine J. Sommer Paul D. Kamenar

Lynne C. Rhode Counsel of Record

TROUTMAN SANDERS LLP WASHINGTON LEGAL

401 9th Street, N.W. FOUNDATION

Suite 1000 2009 Massachusetts Ave., N.W.

Washington, D.C. 20004 Washington, D.C. 20036

(202) 274-2998 (202) 588-0302

Douglas A. Henderson Attorneys for Amicus Curiae

TROUTMAN SANDERS LLP

600 Peachtree Street, N.E.

Suite 5200

Atlanta, GA 30308

(404) 885-3479

Dated: October 24, 2006