Coalition for Responsible Regulation, Inc. v. EPA
Justia.com Opinion Summary: Following the Supreme Court's decision in Massachusetts v. EPA, the EPA promulgated a series of greenhouse gas-related rules: (1) an Endangerment Finding, in which the EPA determined that greenhouse gases may "reasonably be anticipated to endanger public health or welfare"; (2) the Tailpipe Rule, which set emission standards for cars and light trucks; and (3) the Timing and Tailoring Rules, in which the EPA determined that only the largest stationary sources would initially be subject to the requirements for major stationary sources of greenhouse gases to obtain construction and operating permits. Petitioners, various states and industry groups, challenged all these rules. The D.C. Circuit Court of Appeals dismissed for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules and denied the remainder of the petitions, holding (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing Clean Air Act provisions is unambiguously correct; and (3) no Petitioner has standing to challenge the Timing and Tailoring Rules.
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The court issued a Revised version of this opinion on December 20, 2012
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 28 and 29, 2012
Decided June 26, 2012
No. 09-1322
COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
STATE OF MICHIGAN, ET AL.,
INTERVENORS
Consolidated with 10-1024, 10-1025, 10-1026, 10-1030,
10-1035, 10-1036, 10-1037, 10-1038, 10-1039, 10-1040,
10-1041, 10-1042, 10-1044, 10-1045, 10-1046, 10-1234,
10-1235, 10-1239, 10-1245, 10-1281, 10-1310, 10-1318,
10-1319, 10-1320, 10-1321
On Petitions for Review of Final Actions
of the Environmental Protection Agency
Patrick R. Day, Harry W. MacDougald, and Jeffrey Bossert
Clark argued the causes for Non-State Petitioners and
Supporting Intervenors. With them on the briefs were John J.
Burns, Attorney General, Office of the Attorney General of the
State of Alaska, Steven E. Mulder, Chief Assistant Attorney
2
General, Peter Glaser, Mark E. Nagle, Matthew Dukes, Paul D.
Phillips, John A. Bryson, Ellen Steen, Eric Groten, John P.
Elwood, James A. Holtkamp, Chet M. Thompson, Robin S.
Conrad, Rachel L. Brand, Sheldon Gilbert, Quentin Riegel,
Jeffrey A. Rosen, Robert R. Gasaway, William H. Burgess, Sam
Kazman, Hans Bader, Matthew G. Paulson, Harry Moy Ng,
Michele Marie Schoeppe, Michael R. Barr, Alexandra M.
Walsh, Adam J. White, Jeffrey A. Lamken, Timothy K. Webster,
Roger R. Martella, Neal J. Cabral, Theodore Hadzi-Antich,
Ashley C. Parrish, Cynthia A. M. Stroman, Scott C. Oostdyk,
Gordon R. Alphonso, Shannon L. Goessling, Edward A.
Kazmarek, F. William Brownell, Norman W. Fichthorn, Henry
V. Nickel, and Allison D. Wood. Paul D. Clement, Mark W.
DeLaquil, Andrew M. Grossman, and David B. Rivin, Jr. entered
appearances.
E. Duncan Getchell, Jr., Solicitor General, Office of the
Attorney General for the Commonwealth of Virginia, argued the
cause for State Petitioners Texas and Virginia on Denial of
Reconsideration of the Endangerment Finding and State
Petitioners and Supporting Intervenors on Endangerment
Finding Delegation Issues. With him on the briefs were
Kenneth T. Cuccinelli, II, Attorney General, Stephen R.
McCullough, Senior Appellate Counsel, Charles E. James Jr.,
Chief Deputy Attorney General, and Wesley G. Russell, Jr.,
Deputy Attorney General.
Greg Abbott, Attorney General, Office of the Attorney
General for the State of Texas, Bill Cobb, Deputy Attorney
General for Civil Litigation, J. Reed Clay, Jr., Special Assistant
and Senior Counsel to the Attorney General, Jonathan F.
Mitchell, Solicitor General, Michael P. Murphy, Assistant
Solicitor General, Luther Strange III, Attorney General, Office
of the Attorney General for the State of Alabama, Pamela Jo
Bondi, Attorney General, Office of the Attorney General for the
3
State of Florida, Gregory F. Zoeller, Attorney General, Office
of the Attorney General for the State of Indiana, Jack Conway,
Attorney General, Office of the Attorney General for the
Commonwealth of Kentucky, James D. âBuddyâ Caldwell,
Attorney General, Office of the Attorney General for the State
of Louisiana, Bill Schuette, Attorney General, Office of the
Attorney General for the State of Michigan, John J. Bursch,
Solicitor General, Neil D. Gordon, Assistant Attorney General,
Gary C. Rikard, Jon Bruning, Attorney General, Office of the
Attorney General for the State of Nebraska, Katherine J. Spohn,
Special Counsel to the Attorney General, Wayne Stenehjem,
Attorney General, Office of the Attorney General for the State
of North Dakota, Margaret Olson, Assistant Attorney General,
Scott Pruitt, Attorney General, Office of the Attorney General
for the State of Oklahoma, Alan Wilson, Attorney General,
Office of the Attorney General for the State of South Carolina,
Marty Jackley, Attorney General, Office of the Attorney General
for the States of South Dakota, Roxanne Giedd, Chief, Civil
Litigation Division, Mark L. Shurtleff, Attorney General, Office
of the Attorney General for the State of Utah, and Kenneth T.
Cuccinelli, II, Attorney General, Office of the Attorney General
for the Commonwealth of Virginia were on the briefs for State
Petitioners and Supporting Intervenors. Robert D. Tambling,
Assistant Attorney General, Office of the Attorney General for
the State of Alabama, entered an appearance.
Christian J. Ward, Scott A. Keller, and April L. Farris were
on the brief for amici curiae Scientists in support of Petitioners.
Derek Schmidt, Attorney General, Office of the Attorney
General for the State of Kansas, and John Campbell, Chief
Deputy Attorney General, were on the brief for amicus curiae
State of Kansas in support of Petitioners.
Martin R. Levin, Michael J. OâNeill, Donald M. Falk, Mark
4
S. Kaufman, Steven J. Lechner, and Richard P. Hutchison were
on the brief for amici curiae Landmark Legal Foundation, et al.
in support of Petitioners.
Jon M. Lipshultz and Angeline Purdy, Attorneys, U.S.
Department of Justice, argued the causes for respondent. With
them on the brief were John Hannon, Carol Holmes, and Steven
Silverman, U.S. Environmental Protection Agency, Attorneys.
Thomas A. Lorenzen, Attorney, U.S. Department of Justice,
entered an appearance.
Carol Iancu, Assistant Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
argued the cause for State and Environmental Intervenors in
support of respondents. With her on the briefs were Martha
Coakley, Attorney General, William L. Pardee, Attorney
Assistant General, Sean H. Donahue, Howard I. Fox, David S.
Baron, Megan Ceronsky, Vickie L. Patton, Peter Zalzal, Kamala
D. Harris, Attorney General, Office of the Attorney General for
the State of California, Kathleen A. Kenealy, Senior Assistant
Attorney General, Marc N. Melnick and Nicholas Stern, Deputy
Attorneys General, Joseph R. Biden, III, Attorney General,
Office of the Attorney General for the State of Delaware,
Valerie M. Satterfield, Deputy Attorney General, George
Jepsen, Attorney General, Office of the Attorney General for the
State of Connecticut, Kimberly P. Massicotte, Matthew I.
Levine, Scott N. Koschwitz, Assistant Attorneys General, Lisa
Madigan, Attorney General, Office of the Attorney General for
the State of Illinois, Gerald T. Karr, Assistant Attorney General,
Thomas J. Miller, Attorney General, Office of the Attorney
General for the State of Iowa, David R. Sheridan, Assistant
Attorney General, Douglas F. Gansler, Attorney General, Office
of the Attorney General for the State of Maryland, Mary E.
Raivel, Assistant Attorney General, Michael A. Delaney,
Attorney General, Office of the Attorney General for the State
5
of New Hampshire, K. Allen Brooks, Senior Assistant Attorney
General, William J. Schneider, Attorney General, Office of the
Attorney General for the State of Maine, Gerald D. Reid,
Assistant Attorney General, Lori Swanson, Attorney General,
Office of the Attorney General for the State of Minnesota,
Jocelyn F. Olson, Assistant Attorney General, Gary K. King,
Attorney General, Office of the Attorney General for the State
of New Mexico, Stephen R. Farris, Assistant Attorney General,
Eric T. Schneiderman, Attorney General, Office of the Attorney
General for the State of New York, Michael J. Myers and
Yueh-Ru Chu, Assistant Attorneys General, John Kroger,
Attorney General, Office of the Attorney General for the State
of Oregon, Paul Logan, Assistant Attorney-in-Charge, Robert M.
McKenna, Attorney General, Office of the Attorney General for
the State of Washington, Leslie R. Seffern, Assistant Attorney
General, Peter F. Kilmartin, Attorney General, Office of the
Attorney General for the State of Rhode Island, Gregory S.
Schultz, Special Assistant Attorney General, William H. Sorrell,
Attorney General, Office of the Attorney General for the State
of Vermont, Thea J. Schwartz, Assistant Attorney General,
Christopher King, Assistant Corporation Counsel, Corporation
Counsel for the City Of New York, Ann B. Weeks, Helen D.
Silver, David Doniger, Meleah Geertsma, Morgan Butler, Frank
W. Rambo, Joseph Mendelson III, Craig Holt Segall, and Joanne
Spalding.
Deborah Sivas, Douglas A. Ruley, Edward Lloyd, and Susan
J. Kraham were on the brief for amici curiae America's Great
Waters Coalition, et al. in support of respondent. James K.
Thornton entered an appearance.
_____
6
No. 10-1073
COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN FROZEN FOOD INSTITUTE, ET AL.,
INTERVENORS
Consolidated with 10-1083, 10-1099, 10-1109, 10-1110,
10-1114, 10-1118, 10-1119, 10-1120, 10-1122, 10-1123,
10-1124, 10-1125, 10-1126, 10-1127, 10-1128, 10-1129,
10-1131, 10-1132, 10-1145, 10-1147, 10-1148, 10-1199,
10-1200, 10-1201, 10-1202, 10-1203, 10-1206, 10-1207,
10-1208, 10-1210, 10-1211, 10-1212, 10-1213, 10-1216,
10-1218, 10-1219, 10-1220, 10-1221, 10-1222
On Petitions for Review of Final Agency Action
of the Environmental Protection Agency
Jonathan F. Mitchell, Solicitor General, Office of the
Attorney General for the State of Texas, argued the cause for
State Petitioners and Supporting Intervenor. With him on the
briefs were Gregg Abbott, Attorney General, Bill Cobb, Deputy
Attorney General, J. Reed Clay, Jr., Special Assistant and
Senior Counsel to the Attorney General, Michael P. Murphy and
7
James P. Sullivan, Assistant Solicitors General, Luther Strange,
Attorney General, Office of the Attorney General for the State
of Alabama, Herman Robinson, Donald Trahan, Kathy M.
Wright, Gary C. Rikard, John Bruning, Attorney General, Office
of the Attorney General for the State of Nebraska, Katherine J.
Spohn, Special Counsel, Wayne Stenehjem, Attorney General,
Office of the Attorney General for the State of North Dakota,
Margaret Olson, Assistant Attorney General, Alan Wilson,
Attorney General, Office of the Attorney General for the State
of South Carolina, J. Emory Smith, Jr., Assistant Deputy
Attorney General, Marty Jackley, Attorney General, Office of
the Attorney General for the State of South Dakota, Roxanne
Giedd, Chief, and Kenneth T. Cuccinelli, II, Attorney General,
Office of the Attorney General for the Commonwealth of
Virginia. Mark W. DeLaquil, Earle D. Getchell, Jr., Assistant
Attorney General, Office of the Attorney General for the
Commonwealth of Virginia, Andrew M. Grossman, David B.
Rivkin, Jr., and Robert D. Tambling, Assistant Attorney General,
Office of the Attorney General for the State of Alabama, entered
appearances.
F. William Brownell and Peter Keisler argued the causes for
Non-State Petitioners and Supporting Intervenors. With them
on the briefs were Norman W. Fichthorn, Henry V. Nickel,
Allison D. Wood, Charles H. Knauss, Shannon S. Broome,
Timothy K. Webster, Roger R. Martella, Eric Groten, Patrick R.
Day, John A. Bryson, Matthew G. Paulson, John P. Elwood,
Paul D. Phillips, James A. Holtkamp, Shannon L. Goessling,
Harry W. MacDougald, William H. Lewis, Jr., Ronald J.
Tenpas, Gordon R. Alphonso, Edward A. Kazmarek, Chet M.
Thompson, Neal J. Cabral, Scott C. Oostdyk, Richard P.
Hutchison, John J. McMackin, Jr., Robin S. Conrad, Sheldon
Gilbert, Michael W. Steinberg, Levi McAllister, Jeffrey A.
Rosen, Robert R. Gasaway, Jeffrey Bossert Clark, William H.
Burgess, Ashley C. Parrish, Cynthia A.M. Stroman, Ellen Steen,
8
Leslie Sue Ritts, Peter Glaser, Mark E. Nagle, Terry J. Satterlee,
Thomas J. Grever, Margaret Claiborne Campbell, Bryon W.
Kirkpatrick, Quentin Riegel, Elizabeth Gaudio, Elizabeth Henry
Warner, Harry Moy Ng, Michele Marie Schoeppe, Thomas J.
Ward, and Peter H. Wyckoff. Mark A. Behrens, Paul D.
Clement, Matthew Dukes, Virginia L. Hudson, and David B.
Salmons entered appearances.
Jonathan S. Massey was on the brief for amicus curiae
Municipal Gas Commission of Missouri.
John G. Horne, II, Samuel B. Boxerman and Leslie A. Hulse
were on the brief for amici curiae the Commonwealth of
Kentucky and the American Chemistry Council in support of
petitioners. Angus Macbeth entered an appearance.
Amanda Shafer Berman and Perry M Rosen, Attorneys,
U.S. Department of Justice, argued the causes for respondents.
With them on the briefs were Howard Hoffman, Elliott Zenick,
Brian Doster, and David Orlin, Counsel, U.S. Environmental
Protection Agency. Thomas A. Lorenzen and Kim N. Smaczniak,
Attorneys, U.S. Department of Justice, and John D. Gunter, II
and Michele L. Walter, Counsel, U.S. Environmental Protection
Agency, entered appearances.
Sean H. Donahue and Michael J. Myers argued the causes
for State and Environmental Intervenors in support of
respondents. With them on the briefs were Vickie L. Patton,
Pamela A. Campos, Megan Ceronsky, Petere Zalzal, Eric T.
Schneiderman, Attorney General, Office of the Attorney General
for the State of New York, Barbara D. Underwood, Solicitor
General, Morgan A. Costello, Assistant Attorney General,
Monica Wagner, Howard I. Fox, David S. Baron, Lisa Madigan,
Attorney General, Office of the Attorney General for the State
of Illinois, Gerald T. Karr, Assistant Attorney General, Joanne
9
Spalding, Nathan Matthews, Craig Holt Segall, Kamala D.
Harris, Attorney General, Office of the Attorney General for the
State of California, Kathleen A. Kenealy, Senior Assistant
Attorney General, Susan Durbin, Raissa Lerner, Marc N.
Melnick, and Nicholas Stern, Deputy Attorneys General, Martha
Coakley, Attorney General, Office of the Attorney General for
the Commonwealth of Massachusetts, William L. Pardee and
Carol Iancu, Assistant Attorneys General, David Doniger,
Meleah Geertsma, William J. Schneider, Attorney General,
Office of the Attorney General for the State of Maine, Gerald D.
Ried, Assistant Attorney General, Ann B. Weeks, Helen D.
Silver, Thomas J. Miller, Attorney General, Office of the
Attorney General for the State of Iowa, David R. Sheridan,
Assistant Attorney General, Douglas F. Gansler, Attorney
General, Office of the Attorney General for the State of
Maryland, Mary Raivel, Deputy Attorney General, Michael A.
Delaney, Attorney General, Office of the Attorney General for
the State of New Hampshire, K. Allen Brooks, Senior Assistant
Attorney General, Barbara Baird, William B.Wong, Peter F.
Kilmartin, Attorney General, Office of the Attorney General for
the State of Rhode Island, Gregory S. Schultz, Special Assistant
Attorney General, Frank Rambo, Morgan Butler, Gary K. King,
Attorney General, Office of the Attorney General for the State
of New Mexico, Stephen Farris, Assistant Attorney General,
John Kroger, Attorney General, Office of the Attorney General
for the State of Oregon, Paul Logan, Assistant Attorney-inCharge, Roy Cooper, Attorney General, Office of the Attorney
General for the State of North Carolina, and J. Allen Jernigan
and Marc Bernstein, Special Deputy Attorneys General.
Kenneth P. Alex and Gavin G. McCabe, Deputy Assistant
Attorneys General, Office of the Attorney General for the State
of California, entered appearances.
10
No. 10-1092
COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
LANGBOARD, INC. - MDF, ET AL.,
INTERVENORS
Consolidated with 10-1094, 10-1134, 10-1143, 10-1144,
10-1152, 10-1156, 10-1158, 10-1159, 10-1160, 10-1161,
10-1162, 10-1163, 10-1164, 10-1166, 10-1182
On Petitions for Review of Final Actions
of the Environmental Protection Agency
Peter Glaser argued the cause for petitioners. With him on
the briefs were John P. Elwood, Eric Groten, Patrick R. Day,
John A. Bryson, Shannon L. Goessling, Harry W. MacDougald,
Paul D. Phillips, James A. Holtkamp, Edward A. Kazmarek,
Chet M. Thompson, Sam Kazman, Hans Bader, Gordon R.
Alphonso, Richard P. Hutchison, Neal J. Cabral, Scott C.
Oostdyk, Ronald J. Tenpas, Michael W. Steinberg, Levi
McAllister, John J. McMackin Jr., Robin S. Conrad, Rachel L.
Brand, Sheldon Gilbert, F. William Brownell, Norman W.
Fichthorn, Henry V. Nickel, Allison D. Wood, Ashley C. Parrish,
Cynthia A.M. Stroman, Mark E. Nagle, Michael Higgins, Ellen
11
Steen, Timothy K. Webster, Roger R. Martella, Matthew G.
Paulson, Charles H. Knauss, Shannon S. Broome, Quentin
Riegel, Elizabeth Gaudio, Thomas J. Ward, Harry Moy Ng, and
Michele Marie Schoeppe.
Greg Abbott, Attorney General, Office of the Attorney
General for the State of Texas, Bill Cobb, Deputy Attorney
General for Civil Litigation, Jonathan F. Mitchell, Solicitor
General, J. Reed Clay Jr., Special Assistant and Senior Counsel
to the Attorney General, Michael P. Murphy, Assistant Solicitor
General, Luther Strange, Attorney General, Office of the
Attorney General for the State of Alabama, Samuel S. Olens,
Attorney General, Office of the Attorney General for the State
of Georgia, John E. Hennelly, Senior Assistant Attorney
General, Gary C. Rikard, Jon C. Bruning, Attorney General,
Office of the Attorney General for the State of Nebraska,
Katherine J. Spohn, Special Counsel to the Attorney General,
Wayne K. Stenehjem, Attorney General, Office of the Attorney
General for the State of North Dakota, Margaret Olson,
Assistant Attorney General, Alan Wilson, Attorney General,
Office of the Attorney General for the State of South Carolina,
J. Emory Smith, Jr., Assistant Deputy Attorney General, Marty
Jackley, Attorney General, Office of the Attorney General for
the State of North Dakota, Roxanne Giedd, Chief, Civil
Litigation Division, and Kenneth T. Cuccinelli, II, Attorney
General, Office of the Attorney General for the Commonwealth
of Virginia, were on the briefs for State Petitioners and
Supporting Intervenor. Paul D. Clement, James W. Coleman,
Wayne J. D'Angelo, Mark W. DeLaquil, E. Duncan Getchell Jr.,
Solicitor General, Office of the Attorney General for the
Commonwealth of Virginia, Andrew M. Grossman, Virginia L.
Hudson, David B. Rivkin Jr., and Robert D. Tambling, Assistant
Attorney General, Office of the Attorney General for the State
of Alabama, entered appearances.
12
Samuel B. Boxerman and Leslie A. Hulse were on the brief
for amicus curiae American Chemistry Council in support of
petitioners. Angus Macbeth entered an appearance.
Eric G. Hostetler, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
John Hannon and Steven Silverman, Attorneys, U.S.
Environmental Protection Agency.
Raymond B. Ludwiszewski argued the cause for intervenors
Association of Global Automakers, et al. With him on the brief
were Kathleen M. Sullivan, Sanford I. Weisburst, and William B.
Adams.
Gavin G. McCabe, Deputy Attorney General, Office of the
Attorney General for the State of California, argued the cause
for intervenor State of California. On the brief were Kamala D.
Harris, Attorney General, Kathleen A. Kenealy, Senior Assistant
Attorney General, Marc N. Melnick and Nicholas Stern, Deputy
Attorneys General, Sean H. Donahue, Howard I. Fox, David S.
Baron, Pamela Campos, Megan Ceronsky, Vickie L. Patton,
Peter Zalzal, Joseph R. Biden, III, Attorney General, Office of
the Attorney General for the State of Delaware, Valerie M.
Satterfield, Deputy Attorney General, Thomas J. Miller,
Attorney General, Office of the Attorney General for the State
of Iowa, David R. Sheridan, Assistant Attorney General,
Douglas F. Gansler, Attorney General, Office of the Attorney
General for the State of Maryland, Roberta R. James, Assistant
Attorney General, Lisa Madigan, Attorney General, Office of
the Attorney General for the State of Illinois, Gerald T. Karr,
Assistant Attorney General, William T. Schneider, Attorney
General, Office of the Attorney General for the State of Maine,
Gerald D. Reid, Assistant Attorney General, Martha Coakley,
Attorney General, Office of the Attorney General for the
13
Commonwealth of Massachusetts, Carol Iancu, Tracy Triplett,
and William L. Pardee, Assistant Attorneys General, Gary K.
King, Attorney General, Office of the Attorney General for the
State of New Mexico, Stephen R. Farris, Assistant Attorney
General, John Kroger, Attorney General, Office of the Attorney
General for the State of Oregon, Paul Logan, Assistant
Attorney-in-Charge, William H. Sorrell, Attorney General,
Office of the Attorney General for the State of Vermont, Thea
J. Schwartz, Assistant Attorney General, Eric T. Schneiderman,
Attorney General, Office of the Attorney General for the State
of New York, Michael J. Myers and Yueh-Ru Chu, Assistant
Attorneys General, Peter F. Kilmartin, Attorney General, Office
of the Attorney General for the State of Rhode Island, Gregory
S. Schultz, Special Assistant Attorney General, Robert M.
McKenna, Attorney General, Office of the Attorney General for
the State of Washington, Leslie R. Seffern, Assistant Attorney
General, Christopher King, Assistant Corporation Counsel,
Corporation Counsel for the City of New York, Joanne
Spalding, Craig Holt Segall, David Doniger and Meleah
Geertsma. Judith A. Stahl Moore, Assistant Attorney General,
Office of the Attorney General for the State of New Mexico, and
John D. Walke entered appearances.
Richard E. Ayres, Jessica L. Olson, and Kristin L. Hines
were on the brief for amicus curiae Honeywell International,
Inc. in support of respondents.
Richard L. Revesz, Michael A. Livermore, and Jennifer S.
Rosenberg were on the brief for amicus curiae Institute for
Policy Integrity at New York University School of Law in
support of respondents.
14
No. 10-1167
AMERICAN CHEMISTRY COUNCIL,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENTS
CHAMBER OF COMMERCE OF THE UNITED STATES OF
AMERICA, ET AL.,
INTERVENORS
Consolidated with 10-1168, 10-1169, 10-1170, 10-1173,
10-1174, 10-1175, 10-1176, 10-1177, 10-1178, 10-1179,
10-1180
On Petitions for Review of a Final Action
of the Environmental Protection Agency
Timothy K. Webster, Roger R. Martella, Jr., James W.
Coleman, William H. Lewis, Jr., Ronald J. Tenpas, Charles H.
Knauss, Shannon S. Broome, Bryan M. Killian, and Matthew G.
Paulson were on the briefs for petitioners. Peter D. Keisler,
Leslie A. Hulse, and Quentin Riegel entered appearances.
15
Amanda Shafer Berman and Perry M. Rosen, Attorneys,
U.S. Department of Justice, and Elliott Zenick and Howard J.
Hoffman, Counsel, U.S. Environmental Protection Agency, were
on the brief for respondents. Jon M. Lipshultz, Senior Counsel,
U.S. Department of Justice, entered and appearance.
Ann Brewster Weeks, Sean H. Donahue, Vickie Patton,
Peter Zalzal, Joanne Spalding, Craig Segall, David Doniger,
and Meleah Geertsma were on the brief of intervenors in support
of respondents. David S. Baron, Pamela A. Campos, Colin C.
OâBrien, and John D. Walke entered appearances.
Vera P. Pardee, Brendan R. Cummings, and Kevin P. Bundy
were on the brief for amicus curiae Center for Biological
Diversity in support of respondents.
Before: SENTELLE, Chief Judge; ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Following the Supreme Courtâs decision in
Massachusetts v. EPA, 549 U.S. 497 (2007)âwhich clarified
that greenhouse gases are an âair pollutantâ subject to regulation
under the Clean Air Act (CAA)âthe Environmental Protection
Agency promulgated a series of greenhouse gas-related rules.
First, EPA issued an Endangerment Finding, in which it
determined that greenhouse gases may âreasonably be
anticipated to endanger public health or welfare.â See 42 U.S.C.
§ 7521(a)(1). Next, it issued the Tailpipe Rule, which set
emission standards for cars and light trucks. Finally, EPA
determined that the CAA requires major stationary sources of
greenhouse gases to obtain construction and operating permits.
But because immediate regulation of all such sources would
result in overwhelming permitting burdens on permitting
16
authorities and sources, EPA issued the Timing and Tailoring
Rules, in which it determined that only the largest stationary
sources would initially be subject to permitting requirements.
Petitioners, various states and industry groups, challenge all
these rules, arguing that they are based on improper
constructions of the CAA and are otherwise arbitrary and
capricious. But for the reasons set forth below, we conclude: 1)
the Endangerment Finding and Tailpipe Rule are neither
arbitrary nor capricious; 2) EPAâs interpretation of the
governing CAA provisions is unambiguously correct; and 3) no
petitioner has standing to challenge the Timing and Tailoring
Rules. We thus dismiss for lack of jurisdiction all petitions for
review of the Timing and Tailoring Rules, and deny the
remainder of the petitions.
I.
We begin with a brief primer on greenhouse gases. As their
name suggests, when released into the atmosphere, these gases
act âlike the ceiling of a greenhouse, trapping solar energy and
retarding the escape of reflected heat.â Massachusetts v. EPA,
549 U.S. at 505. A wide variety of modern human activities
result in greenhouse gas emissions; cars, power plants, and
industrial sites all release significant amounts of these heattrapping gases. In recent decades â[a] well-documented rise in
global temperatures has coincided with a significant increase in
the concentration of [greenhouse gases] in the atmosphere.â Id.
at 504-05. Many scientists believe that mankindâs greenhouse
gas emissions are driving this climate change. These scientists
predict that global climate change will cause a host of
deleterious consequences, including drought, increasingly severe
weather events, and rising sea levels.
The genesis of this litigation came in 2007, when the
17
Supreme Court held in Massachusetts v. EPA that greenhouse
gases âunambiguous[ly]â may be regulated as an âair pollutantâ
under the Clean Air Act (âCAAâ). Id. at 529. Squarely rejecting
the contentionâthen advanced by EPAâthat âgreenhouse gases
cannot be âair pollutantsâ within the meaning of the Act,â id. at
513, the Court held that the CAAâs definition of âair pollutantâ
âembraces all airborne compounds of whatever stripe.â Id. at
529 (emphasis added). Moreover, because the CAA requires
EPA to establish motor-vehicle emission standards for âany air
pollutant . . . which may reasonably be anticipated to endanger
public health or welfare,â 42 U.S.C. § 7521(a)(1) (emphasis
added), the Court held that EPA had a âstatutory obligationâ to
regulate harmful greenhouse gases. Id. at 534. âUnder the clear
terms of the Clean Air Act,â the Court concluded, âEPA can
avoid taking further action only if it determines that greenhouse
gases do not contribute to climate change or if it provides some
reasonable explanation as to why it cannot or will not exercise
its discretion to determine whether they do.â Id. at 533. The
Court thus directed EPA to determine âwhether sufficient
information exists to make an endangerment findingâ for
greenhouse gases. Id. at 534.
Massachusetts v. EPA spurred a cascading series of
greenhouse gas-related rules and regulations. First, in direct
response to the Supreme Courtâs directive, EPA issued an
Endangerment Finding for greenhouse gases. Endangerment and
Cause or Contribute Findings for Greenhouse Gases Under
Section 202(a) of the Clean Air Act (âEndangerment Findingâ),
74 Fed. Reg. 66,496 (Dec. 15, 2009). The Endangerment
Finding defined as a single âair pollutantâ an âaggregate group
of six long-lived and directly-emitted greenhouse gasesâ that are
âwell mixedâ together in the atmosphere and cause global
climate change: carbon dioxide, methane, nitrous oxide,
hydroflourocarbons, perflourocarbons, and sulfur hexafluoride.
Id. at 66,536-37. Following âcommon practice,â EPA measured
18
the impact of these gases on a âcarbon dioxide equivalent basis,â
(CO2e) which is based on the gasesâ âwarming effect relative to
carbon dioxide . . . over a specified timeframe.â Id. at 66,519.
(Using the carbon dioxide equivalent equation, for example, a
mixture of X amount of nitrous oxide and Y amount of sulfur
hexafluoride is expressed as Z amount of CO2e). After
compiling and considering a considerable body of scientific
evidence, EPA concluded that motor-vehicle emissions of these
six well-mixed gases âcontribute to the total greenhouse gas air
pollution, and thus to the climate change problem, which is
reasonably anticipated to endanger public health and welfare.â
Id. at 66,499.
Next, and pursuant to the CAAâs requirement that EPA
establish motor-vehicle emission standards for âany air pollutant
. . . which may reasonably be anticipated to endanger public
health or welfare,â 42 U.S.C. § 7521(a)(1), the agency
promulgated its Tailpipe Rule for greenhouse gases. Light-Duty
Vehicle Greenhouse Gas Emission Standards and Corporate
Average Fuel Economy Standards; Final Rule (âTailpipe
Ruleâ), 75 Fed. Reg. 25,324 (May 7, 2010). Effective January 2,
2011, the Tailpipe Rule set greenhouse gas emission standards
for cars and light trucks as part of a joint rulemaking with fuel
economy standards issued by the National Highway Traffic
Safety Administration (NHTSA). Id. at 25,326.
Under EPAâs longstanding interpretation of the CAA, the
Tailpipe Rule automatically triggered regulation of stationary
greenhouse gas emitters under two separate sections of the Act.
The first, the Prevention of Significant Deterioration of Air
Quality (PSD) program, requires state-issued construction
permits for certain types of stationary sourcesâfor example,
iron and steel mill plantsâif they have the potential to emit over
100 tons per year (tpy) of âany air pollutant.â See 42 U.S.C.
§ 7475; 7479(1). All other stationary sources are subject to PSD
19
permitting if they have the potential to emit over 250 tpy of âany
air pollutant.â Id. § 7479(1). The second provision, Title V,
requires state-issued operating permits for stationary sources
that have the potential to emit at least 100 tpy of âany air
pollutant.â Id. § 7602(j). EPA has long interpreted the phrase
âany air pollutantâ in both these provisions to mean any air
pollutant that is regulated under the CAA. See Requirements for
Preparation, Adoption, and Submittal of Implementation Plans;
Approval and Promulgation of Implementation Plans (â1980
Implementation Plan Requirementsâ), 45 Fed. Reg. 52,676,
52,711 (Aug. 7, 1980) (PSD program); Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule
(âTailoring Ruleâ), 75 Fed. Reg. 31,514, 31,553-54 (June 3,
2010) (discussing history of Title V regulation and
applicability). And once the Tailpipe Rule set motor-vehicle
emission standards for greenhouse gases, they became a
regulated pollutant under the Act, requiring PSD and Title V
greenhouse permitting.
Acting pursuant to this longstanding interpretation of the
PSD and Title V programs, EPA issued two rules phasing in
stationary source greenhouse gas regulation. First, in the Timing
Rule, EPA concluded that an air pollutant becomes âsubject to
regulationâ under the Clean Air Actâand thus subject to PSD
and Title V permittingâonly once a regulation requiring control
of that pollutant takes effect. Reconsideration of Interpretation
of Regulations That Determine Pollutants Covered by Clean Air
Act Permitting Programs (âTiming Ruleâ), 75 Fed. Reg. 17,004
(Apr. 2, 2010). Therefore, EPA concluded, major stationary
emitters of greenhouse gases would be subject to PSD and Title
V permitting regulations on January 2, 2011âthe date on which
the Tailpipe Rule became effective, and thus, the date when
greenhouse gases first became regulated under the CAA. Id. at
17,019.
20
Next, EPA promulgated the Tailoring Rule. In the Tailoring
Rule, EPA noted that greenhouse gases are emitted in far greater
volumes than other pollutants. Indeed, millions of industrial,
residential, and commercial sources exceed the 100/250 tpy
statutory emissions threshold for CO2e. Tailoring Rule, 75 Fed.
Reg. at 31,534-36. Immediately adding these sources to the PSD
and Title V programs would, EPA predicted, result in
tremendous costs to industry and state permitting authorities.
See id. As a result, EPA announced that it was ârelieving
overwhelming permitting burdens that would, in the absence of
this rule, fall on permitting authorities and sources.â Id. at
31,516. Departing from the CAAâs 100/250 tpy emissions
threshold, the Tailoring Rule provided that only the largest
sourcesâthose exceeding 75,000 or 100,000 tpy CO2e,
depending on the program and projectâwould initially be
subject to greenhouse gas permitting. Id. at 31,523. (The
Tailoring Rule further provided that regulated sources must also
emit greenhouse gases at levels that exceed the 100/250 tpy
emissions threshold on a mass basis. That is, they must emit
over 100/250 tpy of actual pollutants, in addition to exceeding
the 75,000/100,000 tpy carbon dioxide equivalent. Id. at
31,523.)
A number of groupsâincluding states and regulated
industriesâfiled petitions for review of EPAâs greenhouse gas
regulations, contending that the agency misconstrued the CAA
and otherwise acted arbitrarily and capriciously. This appeal
consolidates the petitions for review of the four aforementioned
rules: the Endangerment Finding, the Tailpipe Rule, the Timing
Rule, and the Tailoring Rule.
âThe Clean Air Act empowers us to reverse the
Administratorâs action in rulemaking if it is âarbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.ââ Med. Waste Inst. & Energy Recovery
21
Council v. EPA, 645 F.3d 420, 424 (D.C. Cir. 2011) (quoting 42
U.S.C. § 7607(d)(9)(A)). Questions of statutory interpretation
are governed by the familiar Chevron two-step: âFirst . . . if the
intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.â Chevron, U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984). But âif the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether
the agencyâs answer is based on a permissible construction of
the statute.â Id. at 843.
This opinion proceeds in several steps. Part II explains why
the Endangerment Finding was neither arbitrary nor capricious,
while Part III does the same for the Tailpipe Rule. Turning to
stationary source regulation, Part IV examines whether any
petitioners may timely challenge EPAâs longstanding
interpretation of the PSD statute. Because we conclude that they
may, Part V addresses the merits of their statutory arguments,
and explains why EPAâs interpretation of the CAA was
compelled by the statute. Next, Part VI explains why petitioners
lack standing to challenge the Timing and Tailoring Rules
themselves. Finally, Part VII disposes of several arguments that
have nothing to do with the rules under review, and thus are not
properly before us.
II.
We turn first to State and Industry Petitionersâ challenges
to the Endangerment Finding, the first of the series of rules EPA
issued after the Supreme Court remanded Massachusetts v. EPA.
In the decision ordering the remand, the Supreme Court held
that EPA had failed in its statutory obligations when it âoffered
no reasoned explanation for its refusal to decide whether
greenhouse gases cause or contribute to climate change.â
22
Massachusetts v. EPA, 549 U.S. at 534. On remand, EPA
compiled a substantial scientific record, which is before us in the
present review, and determined that âgreenhouse gases in the
atmosphere may reasonably be anticipated both to endanger
public health and to endanger public welfare.â Endangerment
Finding, 74 Fed. Reg. at 66,497. EPA went on to find that
motor-vehicle emissions of greenhouse gases âcontribute to the
total greenhouse gas air pollution, and thus to the climate change
problem, which is reasonably anticipated to endanger public
health and welfare.â Id. at 66,499.
State and Industry Petitioners challenge several aspects of
EPAâs decision, including (1) EPAâs interpretation of CAA
§ 202(a)(1), which sets out the endangerment-finding standard;
(2) the adequacy of the scientific record supporting the
Endangerment Finding; (3) EPAâs decision not to âquantifyâ the
risk of endangerment to public health or welfare created by
climate change; (4) EPAâs choice to define the âair pollutantâ at
issue as an aggregate of six greenhouse gases; (5) EPAâs failure
to consult its Science Advisory Board before issuing the
Endangerment Finding; and (6) EPAâs denial of all petitions for
reconsideration of the Endangerment Finding. We ultimately
conclude that the Endangerment Finding is consistent with
Massachusetts v. EPA and the text and structure of the CAA,
and is adequately supported by the administrative record.
A.
Industry Petitioners contend that EPA improperly
interpreted CAA § 202(a)(1) as restricting the Endangerment
Finding to a science-based judgment devoid of considerations of
policy concerns and regulatory consequences. They assert that
CAA § 202(a)(1) requires EPA to consider, e.g., the benefits of
activities that require greenhouse gas emissions, the
effectiveness of emissions regulation triggered by the
23
Endangerment Finding, and the potential for societal adaptation
to or mitigation of climate change. They maintain that
eschewing those considerations also made the Endangerment
Finding arbitrary and capricious.
These contentions are foreclosed by the language of the
statute and the Supreme Courtâs decision in Massachusetts v.
EPA. Section 202(a) of the CAA states in relevant part that
EPAâs Administrator
shall by regulation prescribe (and from time to time
revise) in accordance with the provisions of this
section, standards applicable to the emission of any air
pollutant from any class or classes of new motor
vehicles or new motor vehicle engines, which in his
judgment cause, or contribute to, air pollution which
may reasonably be anticipated to endanger public
health or welfare.
42 U.S.C. § 7521(a)(1). This language requires that the
endangerment evaluation ârelate to whether an air pollutant
âcause[s], or contribute[s] to, air pollution which may reasonably
be anticipated to endanger public health or welfare.ââ
Massachusetts v. EPA, 549 U.S. at 532â33. At bottom,
§ 202(a)(1) requires EPA to answer only two questions: whether
particular âair pollutionââhere, greenhouse gasesââmay
reasonably be anticipated to endanger public health or welfare,â
and whether motor-vehicle emissions âcause, or contribute toâ
that endangerment.
These questions require a âscientific judgmentâ about the
potential risks greenhouse gas emissions pose to public health or
welfareânot policy discussions. Massachusetts v. EPA, 549
U.S. at 534. In Massachusetts v. EPA, the Supreme Court
rebuffed an attempt by EPA itself to inject considerations of
24
policy into its decision. At the time, EPA had âoffered a laundry
list of reasons not to regulateâ greenhouse gases, including
that a number of voluntary Executive Branch programs
already provide an effective response to the threat of
global warming, that regulating greenhouse gases
might impair the Presidentâs ability to negotiate with
âkey developing nationsâ to reduce emissions, and that
curtailing motor-vehicle emissions would reflect âan
inefficient, piecemeal approach to address the climate
change issue.â
Id. at 533 (citations omitted). The Court noted that âthese policy
judgments . . . have nothing to do with whether greenhouse gas
emissions contribute to climate change. Still less do they amount
to a reasoned justification for declining to form a scientific
judgment.â Id. at 533â34. In the Courtâs view, EPAâs policybased explanations contained âno reasoned explanation for
[EPAâs] refusal to decideâ the key part of the endangerment
inquiry: âwhether greenhouse gases cause or contribute to
climate change.â Id. at 534.
As in Massachusetts v. EPA, a âlaundry list of reasons not
to regulateâ simply has ânothing to do with whether greenhouse
gas emissions contribute to climate change.â Id. at 533â34. The
additional exercises State and Industry Petitioners would have
EPA undertakeâe.g., performing a cost-benefit analysis for
greenhouse gases, gauging the effectiveness of whatever
emission standards EPA would enact to limit greenhouse gases,
and predicting societyâs adaptive response to the dangers or
harms caused by climate changeâdo not inform the âscientific
judgmentâ that § 202(a)(1) requires of EPA. Instead of focusing
on the question whether greenhouse gas emissions may
reasonably be anticipated to endanger public health or welfare,
the factors State and Industry Petitioners put forth only address
25
what might happen were EPA to answer that question in the
affirmative. As EPA stated in the Endangerment Finding, such
inquiries âmuddle the rather straightforward scientific judgment
about whether there may be endangerment by throwing the
potential impact of responding to the danger into the initial
question.â 74 Fed. Reg. at 66,515. To be sure, the subsection
following § 202(a)(1), § 202(a)(2), requires that EPA address
limited questions about the cost of compliance with new
emission standards and the availability of technology for
meeting those standards, see infra Part III, but these judgments
are not part of the § 202(a)(1) endangerment inquiry. The
Supreme Court made clear in Massachusetts v. EPA that it was
not addressing the question âwhether policy concerns can inform
EPAâs actions in the event that it makes such a finding,â 549
U.S. at 534â35, but that policy concerns were not part of the
calculus for the determination of the endangerment finding in
the first instance. The Supreme Court emphasized that it was
holding âthat EPA must ground its reasons for action or inaction
in the statute.â Id. at 535. The statute speaks in terms of
endangerment, not in terms of policy, and EPA has complied
with the statute.
State and Industry Petitioners insist that because statutes
should be interpreted to avoid absurd results, EPA should have
considered at least the âabsurdâ consequences that would follow
from an endangerment finding for greenhouse gases.
Specifically: having made an endangerment finding, EPA will
proceed to promulgate emission standards under § 202(a)(1).
Issuing those standards triggers regulationâunder EPAâs PSD
and Title V programsâof stationary sources that emit
greenhouse gases at levels above longstanding statutory
thresholds. Because greenhouse gases are emitted in much
higher volumes than other air pollutants, hundreds of thousands
of small stationary sources would exceed those thresholds. This
would subject those sources to PSD and Title V permitting
26
requirements despite what Petitioners claim was Congressâs
clear intent that the requirements apply only to large industrial
sources. Petitioners assert that even EPA believed such
overbroad regulation to be an absurd result, which it attempted
to rectify by adopting the Tailoring Rule to raise the statutory
thresholds, see infra Part VI.
However âabsurdâ Petitioners consider this consequence,
though, it is still irrelevant to the endangerment inquiry. That
EPA adjusted the statutory thresholds to accommodate
regulation of greenhouse gases emitted by stationary sources
may indicate that the CAA is a regulatory scheme less-thanperfectly tailored to dealing with greenhouse gases. But the
Supreme Court has already held that EPA indeed wields the
authority to regulate greenhouse gases under the CAA. See
Massachusetts v. EPA. The plain language of § 202(a)(1) of that
Act does not leave room for EPA to consider as part of the
endangerment inquiry the stationary-source regulation triggered
by an endangerment finding, even if the degree of regulation
triggered might at a later stage be characterized as âabsurd.â
B.
State and Industry Petitioners next challenge the adequacy
of the scientific record underlying the Endangerment Finding,
objecting to both the type of evidence upon which EPA relied
and EPAâs decision to make an Endangerment Finding in light
of what Industry Petitioners view as significant scientific
uncertainty. Neither objection has merit.
1.
As an initial matter, State and Industry Petitioners question
EPAâs reliance on âmajor assessmentsâ addressing greenhouse
gases and climate change issued by the Intergovernmental Panel
27
on Climate Change (IPCC), the U.S. Global Climate Research
Program (USGCRP), and the National Research Council (NRC).
Endangerment Finding, 74 Fed. Reg. at 66,510â11. These peerreviewed assessments synthesized thousands of individual
studies on various aspects of greenhouse gases and climate
change and drew âoverarching conclusionsâ about the state of
the science in this field. Id. at 66,511. The assessments provide
data and information on, inter alia, âthe amount of greenhouse
gases being emitted by human activitiesâ; their continued
accumulation in the atmosphere; the resulting observed changes
to Earthâs energy balance, temperature and climate at global and
regional levels, and other âclimate-sensitive sectors and systems
of the human and natural environmentâ; the extent to which
these changes âcan be attributed to human-induced buildup of
atmospheric greenhouse gasesâ; âfuture projected climate
changeâ; and âprojected risks and impacts to human health,
society and the environment.âId. at 66,510â11.
State and Industry Petitioners assert that EPA improperly
âdelegatedâ its judgment to the IPCC, USGCRP, and NRC by
relying on these assessments of climate-change science. See U.S.
Telecom Assân v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). This
argument is little more than a semantic trick. EPA did not
delegate, explicitly or otherwise, any decision-making to any of
those entities. EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it
sought out and reviewed existing scientific evidence to
determine whether a particular finding was warranted. It makes
no difference that much of the scientific evidence in large part
consisted of âsynthesesâ of individual studies and research.
Even individual studies and research papers often synthesize
past work in an area and then build upon it. This is how science
works. EPA is not required to re-prove the existence of the atom
every time it approaches a scientific question.
28
Moreover, it appears from the record that EPA used the
assessment reports not as substitutes for its own judgment but as
evidence upon which it relied to make that judgment. EPA
evaluated the processes used to develop the various assessment
reports, reviewed their contents, and considered the depth of the
scientific consensus the reports represented. Based on these
evaluations, EPA determined the assessments represented the
best source material to use in deciding whether greenhouse gas
emissions may be reasonably anticipated to endanger public
health or welfare. Endangerment Finding, 74 Fed. Reg. at
66,510â11. It then reviewed those reports along with comments
relevant to the scientific considerations involved to determine
whether the evidence warranted an endangerment finding for
greenhouse gases as it was required to do under the Supreme
Courtâs mandate in Massachusetts v. EPA.
2.
Industry Petitioners also assert that the scientific evidence
does not adequately support the Endangerment Finding. As we
have stated before in reviewing the science-based decisions of
agencies such as EPA, â[a]lthough we perform a searching and
careful inquiry into the facts underlying the agencyâs decisions,
we will presume the validity of agency action as long as a
rational basis for it is presented.â Am. Farm Bureau Fedân v.
EPA, 559 F.3d 512, 519 (D.C. Cir. 2009) (internal quotation
marks omitted). In so doing, âwe give an extreme degree of
deference to the agency when it is evaluating scientific data
within its technical expertise.â Id. (internal quotation marks
omitted).
The body of scientific evidence marshaled by EPA in
support of the Endangerment Finding is substantial. EPAâs
scientific evidence of record included support for the proposition
29
that greenhouse gases trap heat on earth that would otherwise
dissipate into space; that this âgreenhouse effectâ warms the
climate; that human activity is contributing to increased
atmospheric levels of greenhouse gases; and that the climate
system is warming.
Based on this scientific record, EPA made the linchpin
finding: in its judgment, the âroot causeâ of the recently
observed climate change is âvery likelyâ the observed increase
in anthropogenic greenhouse gas emissions. Endangerment
Finding, 74 Fed. Reg. at 66,518. EPA found support for this
finding in three lines of evidence. First, it drew upon our âbasic
physical understandingâ of the impacts of various natural and
manmade changes on the climate system. For instance, EPA
relied on evidence that the past half-century of warming has
occurred at a time when natural forces such as solar and
volcanic activity likely would have produced cooling.
Endangerment Finding, Response to Comments (RTC) Vol. 3,
at 20. Other evidence supports EPAâs conclusion that the
observed warming patternâwarming of the bottommost layer
of the atmosphere and cooling immediately above itâis
consistent with greenhouse-gas causation. Id.
EPA further relied upon evidence of historical estimates of
past climate change, supporting EPAâs conclusion that global
temperatures over the last half-century are unusual.
Endangerment Finding, 74 Fed. Reg. at 66,518. Scientific
studies upon which EPA relied place high confidence in the
assertion that global mean surface temperatures over the last few
decades are higher than at any time in the last four centuries.
Technical Support Document for the Endangerment Finding
(TSD), at 31. These studies also show, albeit with significant
uncertainty, that temperatures at many individual locations were
higher over the last twenty-five years than during any period of
comparable length since 900 A.D. Id.
30
For its third line of evidence that anthropogenic emissions
of greenhouse gases spurred the perceived warming trend, EPA
turned to computer-based climate-model simulations. Scientists
have used global climate models built on basic principles of
physics and scientific knowledge about the climate to try to
simulate the recent climate change. These models have only
been able to replicate the observed warming by including
anthropogenic emissions of greenhouse gases in the simulations.
Endangerment Finding, 74 Fed. Reg. at 66,523.
To recap, EPA had before it substantial record evidence that
anthropogenic emissions of greenhouse gases âvery likelyâ
caused warming of the climate over the last several decades.
EPA further had evidence of current and future effects of this
warming on public health and welfare. Relying again upon
substantial scientific evidence, EPA determined that
anthropogenically induced climate change threatens both public
health and public welfare. It found that extreme weather events,
changes in air quality, increases in food- and water-borne
pathogens, and increases in temperatures are likely to have
adverse health effects. Id. at 66,497â98. The record also
supports EPAâs conclusion that climate change endangers
human welfare by creating risk to food production and
agriculture, forestry, energy, infrastructure, ecosystems, and
wildlife. Substantial evidence further supported EPAâs
conclusion that the warming resulting from the greenhouse gas
emissions could be expected to create risks to water resources
and in general to coastal areas as a result of expected increase in
sea level. Id. at 66,498. Finally, EPA determined from
substantial evidence that motor-vehicle emissions of greenhouse
gases contribute to climate change and thus to the endangerment
of public health and welfare.
Industry Petitioners do not find fault with much of the
substantial record EPA amassed in support of the Endangerment
31
Finding. Rather, they contend that the record evidences too
much uncertainty to support that judgment. But the existence of
some uncertainty does not, without more, warrant invalidation
of an endangerment finding. If a statute is âprecautionary in
natureâ and âdesigned to protect the public health,â and the
relevant evidence is âdifficult to come by, uncertain, or
conflicting because it is on the frontiers of scientific
knowledge,â EPA need not provide ârigorous step-by-step proof
of cause and effectâ to support an endangerment finding. Ethyl
Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1976). As we have
stated before, âAwaiting certainty will often allow for only
reactive, not preventive, regulation.â Id. at 25.
Congress did not restrict EPA to remedial regulation when
it enacted CAA § 202(a). That section mandates that EPA
promulgate new emission standards if it determines that the air
pollution at issue âmay reasonably be anticipated to endanger
public health or welfare.â 42 U.S.C. § 7521(a)(1). This language
requires a precautionary, forward-looking scientific judgment
about the risks of a particular air pollutant, consistent with the
CAAâs âprecautionary and preventive orientation.â Lead Indus.
Assân, Inc. v. EPA, 647 F.2d 1130, 1155 (D.C. Cir. 1980).
Requiring that EPA find âcertainâ endangerment of public
health or welfare before regulating greenhouse gases would
effectively prevent EPA from doing the job Congress gave it in
§ 202(a)âutilizing emission standards to prevent reasonably
anticipated endangerment from maturing into concrete harm. Cf.
id. (â[R]equiring EPA to wait until it can conclusively
demonstrate that a particular effect is adverse to health before it
acts is inconsistent with both the [CAA]âs precautionary and
preventive orientation and the nature of the Administrator's
statutory responsibilities. Congress provided that the
Administrator is to use his judgment in setting air quality
standards precisely to permit him to act in the face of
uncertainty.â).
32
In Massachusetts v. EPA the Supreme Court confirmed that
EPA may make an endangerment finding despite lingering
scientific uncertainty. Indeed, the Court held that the existence
of âsome residual uncertaintyâ did not excuse EPAâs decision to
decline to regulate greenhouse gases. Massachusetts v. EPA, 549
U.S. at 534. To avoid regulating emissions of greenhouse gases,
EPA would need to show âscientific uncertainty . . . so profound
that it precludes EPA from making a reasoned judgment as to
whether greenhouse gases contribute to global warming.â Id.
Clearly, then, EPA may issue an endangerment finding even
while the scientific record still contains at least âsome residual
uncertainty.â Industry Petitioners have shown no more than that.
In the end, Petitioners are asking us to re-weigh the
scientific evidence before EPA and reach our own conclusion.
This is not our role. As with other reviews of administrative
proceedings, we do not determine the convincing force of
evidence, nor the conclusion it should support, but only whether
the conclusion reached by EPA is supported by substantial
evidence when considered on the record as a whole. See, e.g.,
New York v. EPA, 413 F.3d 3, 30 (D.C. Cir. 2005). When EPA
evaluates scientific evidence in its bailiwick, we ask only that it
take the scientific record into account âin a rational manner.â
Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1187 (D.C. Cir.
1981). Industry Petitioners have not shown that EPA failed to do
so here.
C.
State Petitioners, here led by Texas, contend that the
Endangerment Finding is arbitrary and capricious because EPA
did not âdefine,â âmeasure,â or âquantifyâ either the
atmospheric concentration at which greenhouse gases endanger
public health or welfare, the rate or type of climate change that
it anticipates will endanger public health or welfare, or the risks
33
or impacts of climate change. According to Texas, without
defining these thresholds and distinguishing âsafeâ climate
change from climate change that endangers, EPAâs
Endangerment Finding is just a âsubjective conviction.â
It is true that EPA did not provide a quantitative threshold
at which greenhouse gases or climate change will endanger or
cause certain impacts to public health or welfare. The text of
CAA § 202(a)(1) does not require that EPA set a precise
numerical value as part of an endangerment finding. Quite the
opposite; the § 202(a)(1) inquiry necessarily entails a case-bycase, sliding-scale approach to endangerment because â[d]anger
. . . is not set by a fixed probability of harm, but rather is
composed of reciprocal elements of risk and harm, or probability
and severity.â Ethyl, 541 F.2d at 18. EPA need not establish a
minimum threshold of risk or harm before determining whether
an air pollutant endangers. It may base an endangerment finding
on âa lesser risk of greater harm . . . or a greater risk of lesser
harmâ or any combination in between. Id.
Ethyl is instructive. There, EPA made an endangerment
finding for airborne lead. During its endangerment inquiry, EPA
initially tried to do what Texas asks of it here: find a specific
concentration of the air pollutant below which it would be
considered âsafeâ and above which it would endanger public
health. Id. at 56. However, EPA abandoned that approach
because it failed to account for âthe wide variability of dietary
lead intakeâ and lacked predictive value. EPA substituted a
âmore qualitativeâ approach, which relied on âpredictions based
on uncertain dataâ along with clinical studies. Id. at 56â57. This
court upheld the endangerment finding that used that qualitative
approach despite the lack of a specific endangerment
âthreshold.â
In its essence, Texasâs call for quantification of the
34
endangerment is no more than a specialized version of Industry
Petitionersâ claim that the scientific record contains too much
uncertainty to find endangerment. EPA relied on a substantial
record of empirical data and scientific evidence, making many
specific and often quantitative findings regarding the impacts of
greenhouse gases on climate change and the effects of climate
change on public health and welfare. Its failure to distill this
ocean of evidence into a specific number at which greenhouse
gases cause âdangerousâ climate change is a function of the
precautionary thrust of the CAA and the multivariate and
sometimes uncertain nature of climate science, not a sign of
arbitrary or capricious decision-making.
D.
EPA defined both the âair pollutionâ and the âair pollutantâ
that are the subject of the Endangerment Finding as an aggregate
of six greenhouse gases, which EPA called âwell mixed
greenhouse gasesâ: carbon dioxide (CO2), methane (CH4),
nitrous oxide (N 2 O), hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Industry
Petitioners argue that EPAâs decision to include PFCs and SF6
in this group of greenhouse gases was arbitrary and capricious
primarily because motor vehicles generally do not emit these
two gases.
No petitioner for review of the Endangerment Finding has
established standing to make this argument. Industry Petitioners
concede that EPAâs decision to regulate PFCs and SF6 along
with the other four greenhouse gases does not injure any motorvehicle-related petitioner. Nor has any non-motor-vehiclerelated petitioner shown an injury-in-fact resulting from EPAâs
inclusion of these two gases in the six-gas amalgam of âwellmixed greenhouse gases.â At oral argument, Industry Petitioners
asserted for the first time that certain utility
35
companiesâmembers of associations that petitioned for review
of the Endangerment Findingâown utility transformers that
emit SF6. However, they never demonstrated or even
definitively asserted that any of these companies would not be
subject to regulation or permitting requirements but for EPAâs
decision to include SF6 as part of the âwell-mixed greenhouse
gasesâ that are the subject of the Endangerment Finding. See
Sierra Club v. EPA, 292 F.3d 895, 898â900 (D.C. Cir. 2002)
(requiring that a petitioner seeking review of agency action
demonstrate standing by affidavit or other evidence if standing
is not âself-evidentâ from the administrative record). Absent a
petitioner with standing to challenge EPAâs inclusion of PFCs
and SF6 in the âair pollutionâ at issue, this court lacks
jurisdiction to address the merits of Industry Petitionersâ
contention.
E.
EPA did not submit the Endangerment Finding for review
by its Science Advisory Board (SAB). Industry Petitioners claim
that EPAâs failure to do so violates its mandate to âmake
availableâ to the SAB âany proposed criteria document,
standard, limitation, or regulation under the Clean Air Actâ at
the time it provides the same âto any other Federal agency for
formal review and comment.â 42 U.S.C. § 4365(c)(1); see Am.
Petroleum Inst., 665 F.2d at 1188.
To begin with, it is not clear that EPA provided the
Endangerment Finding âto any other Federal agency for formal
review and comment,â which triggers this duty to submit a
regulation to the SAB. EPA only submitted a draft of the
Endangerment Finding to the Office of Information and
Regulatory Affairs pursuant to Executive Order 12,866. EPA
contends that this was merely an informal review process, not
âformal review and commentââat least when compared with a
36
statutory review-and-comment requirement in which other
agencies are given the opportunity to provide written comments
about the impacts of a proposed regulation on the reviewing
agencyâs universe of responsibility. See, e.g., 49 U.S.C.
§ 32902(j). Industry Petitioners failed to respond to this
contention.
In any event,
