Team Brief #2

C.A. No. 20-000123

In The

UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

CLIMATE HEALTH AND WELFARE NOW, Plaintiff-Appellee-Cross Appellant

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant

and

COAL, OIL, AND GAS ASSOCIATION, Intervenor-Defendant-Appellant-Cross Appellee

On Appeal from the United States District Court for the District of New Union

Brief of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant

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TABLE OF CONTENTS

ISSUES PRESENTED .................................................................................................................. 1

STATEMENT OF JURISDICTION ........................................................................................... 1

STATEMENT OF THE CASE .................................................................................................... 1

I. Statement of the Facts ......................................................................................................... 1

II. Procedural History .............................................................................................................. 3 SUMMARY OF THE ARGUMENT .......................................................................................... 4

STANDARD OF REVIEW .......................................................................................................... 6

ARGUMENT ................................................................................................................................. 6

I. THE DISTRICT COURT DID NOT HAVE JURISDICTION TO HEAR THE PETITIONER’S UNREASONABLE DELAY CLAIM. ............................................... 6

A. The Plain Language of CAA § 307(b) is Unambiguous and Establishes Clearly That The Statute Is Intended to Be Jurisdictional. .................................................................. 7

B. The Form and Function of CAA § 307(b) Provides Contextual Evidence of Clearly Intended Jurisdictional Effect. ........................................................................................ 8

C. Courts Have Historically Treated § 307(b) as Conferring in the D.C. Circuit Exclusive Authority to Hear Unreasonable Delay Claims for National Regulations. ..................... 9

II. THE 2009 ENDANGERMENT FINDING SHOULD BE UPHELD AS IT RELATES TO PUBLIC WELFARE. ........................................................................... 11

A. The Supreme Court has Already Rejected the Absurd Regulatory Policy Argument within the Context of CAA § 202(a). ............................................................................ 12

B. The Scientific Record Clearly Supports the Endangerment Finding. ........................... 14 1. The EPA’s Listing Meets all Rational Basis Factors. ................................................... 14 2. Precedent and the Underlying Purpose of the CAA Supports the Use of Uncertain

Scientific Data. .............................................................................................................. 16

III. THE 2009 ENDANGERMENT FINDING IS INVALID AS IT RELATES TO PUBLIC HEALTH. ........................................................................................................ 18

A. The EPA is Entitled to Deference Under Skidmore. .................................................... 18 B. Agencies are Entitled to a Change in Position. ............................................................. 18 C. The Plain Language of the CAA Dictates That the Endangerment Finding can Only

Consider Direct Health Effects. .................................................................................... 19 D. A Change in Position During Litigation Does Not Outweigh Other Skidmore Factors. ....................................................................................................................................... 21

IV. THE LENGTH OF THE EPA’s DECISION PERIOD HAS NOT BEEN EGREGIOUSLY UNREASONABLE ACCORDING TO THE SIX-FACTOR TRAC TEST. .................................................................................................................. 23

A. The District Court Erred By Not Applying All Six TRAC Factors To the Particular Facts Of the Matter. ...................................................................................................... 23

B. When the Six TRAC Factors Are Applied in Light of the Complexity of the Regulation, the EPA’s Decision Making Period is not Egregiously Unreasonable. .... 24

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TABLE OF AUTHORITIES

Page(s) CASES Air Lines Pilot Ass’n v. C.A.B.,

750 F.2d 81 (D.C. Cir. 1984) ...................................................................................................... 23 Allied Chemical Corp v. Daiflon,

499 U.S. 33 (1980) ...................................................................................................................... 23 Alon Refining Krotz Springs v. EPA,

936 F.3d 628 (D.C. Cir. 2019) .................................................................................................... 10 Am. Farm Bureau Fed’n v. EPA,

559 F.3d 512 (D.C. Cir. 2009) .................................................................................. 12, 14, 15, 19 Am. Lung Ass’n v. Reilly,

962 F.2d 258 (2nd Cir. 1992) ................................................................................................. 9, 11 American Trucking Ass’n v. EPA.,

195 F.3d 4 (D.D.C. 1999) ........................................................................................................... 10 Bayshore Res. Co. v. U.S.,

2 Cl. Ct. 625 ................................................................................................................................ 27 Beyond Pesticides/Nat’l Coal. Against the Misuse of Pesticides v. Johnson,

407 F.Supp.2d 38 (D.C. Cir 2005) ............................................................................................. 24 Blankenship v. Sec’y of Health, Educ., & Welfare,

587 F.2d 329 (6th Cir. 1978) ....................................................................................................... 24 Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,

461 U.S. 273 (1993) ...................................................................................................................... 9 Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) .............................................................................................................. 21, 22 Chemical Foundation,

272 U.S. 1 (1926) ........................................................................................................................ 27 Chevron U.S.A., Inc. v. NRDC,

THE 2009 ENDANGERMENT FINDING DID NOT TRIGGER A NON-DISCRETIONARY DUTY TO DESIGNATE GREENHOUSE GASES AS A CRITERIA POLLUTANT UNDER CAA § 108. ......................................................... 27

A. The Term “Air Pollutant,” as it Appears in § 108, does not Encompass GHGs. ......... 28 1. The term “Air Pollutant” Does not Include Greenhouse Gases in all Sections of the

Clean Air Act. ............................................................................................................... 28 2. The Term “Air Pollutant” Does not Include Greenhouse Gases in every Section of the

Clean Air Act. ............................................................................................................... 29 3. Congress has not granted the EPA power to fundamentally alter the Economy of the

United States. ................................................................................................................ 31 B. If the Term “Air Pollutant,” as it Appears in §108, does Encompass Greenhouse

Gases, the EPA has Discretion to Determine that § 108 is not the Appropriate Tool with which to Regulate that Pollutant. .......................................................................... 33

CONCLUSION ........................................................................................................................... 35

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467 U.S. 837 (1984) .................................................................................................. 12, 18, 19, 22 City of Waukesha v. EPA,

320 F.3d 228 (D.C. Cir. 2003) .................................................................................................... 14 Cmtys. for a Better Env't v. EPA,

748 F.3d 333 (D.C. Cir. 2014) .................................................................................................... 21 Coalition for Responsible Regulation, Inc. v. EPA,

684 F.3d 102 (D.C. Cir. 2012) ............................................................................................ Passim Cutler v. Hayes,

818 F.2d 879 (D.C. Cir 1987) ............................................................................................... 24, 26 Davis v. Mich. Dep't of the Treasury,

489 U.S. 803 (1989) .................................................................................................................... 20 EDF v. Hardin,

428 F.2d 1093 (D.C. Cir. 1970) .................................................................................................. 26 Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) .......................................................................................................... 19, 21 Ethyl Corp. v. EPA,

541 F.2d 1 (D.C. Cir. 1976) ...................................................................................... 12, 14, 15, 17 FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................................................................................. 19, 21 FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .................................................................................................. 28, 31, 32, 33 FDIC v. Meyer,

510 U.S. 471 (1994) ...................................................................................................................... 8 Friends of the Earth v. EPA,

934 F.Supp.2d 40 (D.C. Cir. 2013) ............................................................................................... 8 Greater Bos. Television Corp. v. FCC,

444 F.2d 841 (1970) .................................................................................................................... 19 Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982) .................................................................................................................... 13 Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) .................................................................................................................. 6 Hartford Underwriters Ins. Co. v. Union Planters Bank,

530 U.S. 1 (2000) .................................................................................................................... 7, 10 Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) .................................................................................................................. 8, 9 In re A Cmty. Voice v. EPA,

878 F.3d 779 (9th Cir. 2017) ...................................................................................................... 24 In re Am. Rivers & Idaho Rivers United,

372 F.3d 413 (D.C. Cir. 2004) .................................................................................................... 24 In Re Barr Labs., Inc.,

930 F.2d 72 ........................................................................................................................... 26, 27 In re Core Commc’n,

531 F.3d 849 (D.C. Cir. 2008) ........................................................................................ 23, 24, 25 In Re NRDC,

956 F.3d 1134 (9th Cir. 2020) .................................................................................................... 23 In re Pesticide Action Network,

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532 Fed.Appx 649 (9th Cir. 2013). ........................................................................................ 24, 25 King v. Burwell,

576 U.S. 473 (2015) .................................................................................................................... 29 Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158 (2007) .................................................................................................................... 19 Maine v. Thomas,

874 F.2d 883 (1st Cir. 1989) ................................................................................................... 9, 11 Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ........................................................................................................ 20, 21, 22 Massachusetts v. EPA,

549 U.S. 497 (2007) ............................................................................................................ Passim McMaster v. United States,

731 F.3d 881 (9th Cir. 2013) ................................................................................................ 21, 22 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .......................................................................................................... 14, 19, 22 New York. v. EPA,

133 F.3d 987 (7th Cir. 1998) ...................................................................................................... 10 NRDC, Inc. v. Train,

545 F.2d 320 (2d Cir. 1976) ........................................................................................... 28, 33, 34 Oklahoma v. EPA,

723 F.3d 1201 (10th Cir. 2013) .................................................................................................. 11 Philip Morris USA, Inc. v. Vilsack,

736 F.3d 284 (4th Cir. 2013) ................................................................................................ 19, 22 Pullman-Stand. v. Swint,

456 U.S. 273 (1982) ...................................................................................................................... 6 Royster–Clark Agribusiness v. Johnson,

391 F.Supp.2d 21 (D.D.C. 2005) .................................................................................................. 8 S. Ill. Power Coop. v. EPA,

863 F.3d 666 (7th Cir. 2017) ........................................................................................ 6, 7, 10, 11 Sebilius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) .................................................................................................................. 7, 8 SEC v. McCarthy,

322 F.3d 650 (9th Cir. 2003) ................................................................................................ 20, 22 Sierra Club v. Costle,

657 F.2d 298 (D.C. Cir. 1981) .............................................................................................. 14, 16 Sierra Club v. E.P.A.,

955 F.3d 56 (D.C. Cir. 2020) .................................................................................................. 9, 10 Sierra Club v. Thomas,

828 F.2d 783 (D.C. 1987) ................................................................................... 10, 23, 24, 25, 26 Skidmore v. Swift & Co.,

323 U.S. 134 (1944) .................................................................................................. 18, 19, 21, 22 Stovic v. RRB,

826 F.3d 500 (D.C. Cir. 2016) .................................................................................................... 12 Telecommunications Research & Action Center v. Federal Communications Commission,

750 F.2d 70 (D.C. Cir. 1984) .............................................................................................. Passim Texas Municipal Power Agency v. EPA,

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89 F.3d 858 (D.C. Cir. 1996) ...................................................................................................... 10 Union Elec. Co. v. EPA,

427 U.S. 246 (1976) .............................................................................................................. 13, 14 United States v. Mead Corp.,

533 U.S. 218 (2001) .................................................................................................. 18, 19, 21, 22 Upper Blackstone Water Pollution Abatement Dist. v. EPA,

690 F.3d 9 (1st Cir. 2012) ............................................................................................... 14, 15, 16 Utah v. EPA,

765 F.3d 1257 (10th Cir. 2014) .......................................................................................... 8, 9, 11 Utility Air Regulatory Group (UARG) v. EPA,

573 U.S. 302 (2014) ............................................................................................................ Passim Whitman v. Am. Trucking Ass'ns,

531 U.S. 457 (2001) ............................................................................................................ Passim Zook v. EPA,

611 Fed. Appx. 725 (D.C. Cir. 2015) ......................................................................................... 33 Zook v. McCarthy,

52 F. Supp. 3d 69 (D.D.C. 2014) .......................................................................................... 33, 34

STATUTES 5 U.S.C. § 551(13) ......................................................................................................................... 10 21 U.S.C. § 301 ............................................................................................................................. 31 29 U.S.C. § 1291 ............................................................................................................................. 1 42 U.S.C. § 7401 ........................................................................................................................... 19 42 U.S.C. § 7408 ................................................................................................................... Passim 42 U.S.C. § 7409 ..................................................................................................................... 28, 30 42 U.S.C. § 7410 ........................................................................................................................... 30 42 U.S.C. § 7503 ........................................................................................................................... 30 42 U.S.C. § 7521 ..................................................................................................................... 13, 35 42 U.S.C. § 7602(h) ................................................................................................................. 19, 20 42 U.S.C. § 7604 ................................................................................................................. 6, 7, 8, 9 42 U.S.C. § 7607(b) ............................................................................................................... Passim 42 U.S.C. § 7502(a)(2)(A), (B) ............................................................................................... 20, 22 RULES FED. R. CIV. P. 24(a) ..................................................................................................................... 3 REGULATIONS 40 C.F.R. § 50 ................................................................................................................................ 30 74 FR 66,497 ......................................................................................................................... Passim

OTHER AUTHORITIES American Clean Energy Leadership Act of 2009, S. 1462, 111th Cong. (2009) .......................... 32

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Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 (2012)……………………………………………………………………………...………………8 Carbon Limits and Energy for America’s Renewal (Clear), S. 2877, 111th Cong. (2009) ........... 32 Cleaning Up Jurisdiction: Divining Cong. Intent of Clean Air Act 307(B),

42 Ecology L.Q. 37 (2015) ........................................................................................................... 7 Clean Energy Jobs and Am. Power Act, S. 1733 111th Cong. (2009) ........................................... 32 EPA, Center For Corporate Climate Leadership: GHG Reduction Programs & Strategies,

https://www.epa.gov/climateleadership/center-corporate-climate-leadership-ghg- reduction programs-strategies………………………………………………………………………………26 H.R. REP. NO. 95-294 .................................................................................................................. 17 NAAQS Table, EPA, https://www.epa.gov/criteria-air- pollutants/naaqs-table ............................ 21 Returning to Clean Air Act Fundamentals: A Renewed Call to Regulate Greenhouse Gases

Under the National Ambient Air Quality Standards (NAAQS) Program, 31 Geo. Envtl. L. Rev. 233 (2019) ........................................................................................ 30, 31

Prac. Energy and Climate Plan Act of 2010, S.3464, 111th Cong. (2010) .................................... 32 Reducing Regulation and Controlling Regulatory Costs,

Exec. Order 13771, 82 Fed. Reg. 9,339 (Feb. 3, 2017) ........................................................ 26, 27 S. REP. NO. 91-4358 (1970) ................................................................................................... 34, 35 S. REP. NO. 101-228 (1989) ................................................................................................... 13, 14 S.3464 ............................................................................................................................................ 32 Technical Support Document for Endangerment and Cause or Contribute Findings for

Greenhouse Gases under Section 202(a) of the Clean Air Act at ES-1 (2009) ........................ 15 The American Clean Energy and Security Act of 2009, (H.R. 2454),

1 Wash. & Lee J. Energy, Climate & Env't 203, H.R. 2454 (2010) ........................................... 33 Writing Ctr. at GULC, A Guide To Reading, Interpreting And Applying Statutes 4 (2017)…..….8

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ISSUES PRESENTED

(1) Whether the District Court had jurisdiction to hear an unreasonable delay claim, under Clean Air Act § 304(a) and § 307(b), despite the statute’s use of “may only” to confer jurisdiction over national regulations exclusively to the D.C. Circuit. (2) Whether the 2009 Endangerment Finding is valid with respect to an endangerment of public welfare given the extreme deference agencies are awarded when making scientific determinations. (3) Whether the initial position taken by the EPA with respect to public health in the 2009 Endangerment Finding is valid in light of the plain language of the Clean Air Act and the longstanding belief that agencies are entitled to a change in position. (4) Whether the EPA’s consideration of regulations for greenhouse gases under the NAAQS program constitute such a delay as to be egregious. (5) Whether the EPA’s 2009 determination that greenhouse gasses pose a threat to public health and welfare under Clean Air Act § 202 triggered a non-discretionary duty to regulate greenhouse gases under the NAAQS program, a largely separate regulatory scheme.

STATEMENT OF JURISDICTION

The EPA appeals from an opinion and order, entered August 15, 2020, from Judge

Romulus N. Remus of the United States District Court for the District of New Union, in No. 66-

CV-2019. R. at 2. Jurisdiction was improper in the District Court for Plaintiffs’ claims brought

pursuant to Clean Air Act § 304(a) for unreasonable delay. 42 U.S.C. § 7607(b). The United States

Court of Appeals for the District of New Union has authority to adjudicate this matter based on

29 U.S.C. § 1291 (2018).

STATEMENT OF THE CASE

I. Statement of the Facts

In 2003, the EPA denied a petition requesting a finding under § 202 of the Clean Air Act

(“CAA”) that emissions from automobiles endanger public health and the environment. R. 6. The

litigation that followed culminated in Massachusetts v. EPA, 549 U.S. 497 (2007), where the

Supreme Court held that greenhouse gases (“GHGs”) fit within the CAA’s definition of “air

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pollutants.” R. 6. The Court ordered that the EPA respond to the § 202 petition and issue a finding

as to whether GHGs endanger the public health or welfare. R. 6.

The EPA issued a formal § 202 finding of endangerment (the “Endangerment Finding”) on

December 15, 2009. R. 6. The Endangerment Finding grouped six compounds together as GHGs,

and determined, based upon an extensive administrative record, that these “[GHGs] in the

atmosphere may reasonably be anticipated both to endanger public health and public welfare.” R.

6-7, 8. They anticipated that GHGs would endanger public welfare through reduced agricultural

productivity, droughts, and weather related economic damage, and endanger public health through

an increase in ozone pollution, insect borne diseases, heat related deaths, and other climate related

sickness. R. 6-7.

Following the Endangerment Finding, the EPA began publishing regulations to limit GHGs

emissions, but the regulations faced a mixed reception in the courts. R. 7. The Court of Appeals

for the District of Columbia Circuit upheld GHG emissions limits for new passenger vehicles and

trucks, as well as the underlying Endangerment Finding, in Coalition for Responsible Regulation,

Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012). R. 7. The Supreme Court, however, both struck down

a Tailoring Rule, which facilitated regulations by limiting the scope of permitting and review

requirements that would apply to GHGs, and limited the scope of application of new source GHG

limits in Utility Air Regulatory Group (UARG) v. EPA, 573 U.S. 302 (2014). R. 7. In the years

following UARG, the EPA adjusted its approach to regulating GHGs under the CAA by, in

addition to other measures, lowering automobile and power plant emission standards. R. 7. It has

not, however, reversed its 2009 Endangerment Finding; neither has it decided whether or not to

designate GHGs as criteria pollutants under CAA § 108. R. at 7.

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II. Procedural History

Following the Endangerment Finding, Plaintiff Climate Health and Welfare Now

(CHAWN), filed a petition demanding that the EPA list GHGs as criteria pollutants under § 108.

R. 5. The organizations argued that the EPA had a non-discretionary duty to list GHGs as criteria

pollutants under § 108 because it had already determined that they pose a threat to health and

welfare under § 202. R. 5. On April 1, 2019, CHAWN served notice of its intention to sue the EPA

for “unreasonable delay” in listing GHGs under § 108 “as demanded in the December 15, 2019

petition for rulemaking.” R. 5. CHAWN commended this lawsuit in the District Court for the

District of New Union on October 15, 2019, under the citizen suit provision of § 304 of the CAA,

asking for an order directing the EPA to list GHGs as criteria pollutants under § 108. R. 5.

Coal Oil and Gas Association (COGA), a trade association representing fossil fuel

companies, moved to intervene under FED. R. CIV. P. 24(a). R. 5. It argued that the relief which

CHAWN requested would result in regulatory limits that would severely limit or completely

destroy the market for its members’ product. The District Court granted COGA’s motion on

November 20, 2019. R. 5. COGA also filed a cross-claim against the EPA, seeking a declaration

that the 2009 Endangerment Finding is unsupported by the record and contrary to law. R. 5.

The parties filed cross motions for summary judgment. R. 5. CHAWN reasserted its

position that the EPA had a non-discretionary duty to list GHGs as a criteria pollutant under § 108

and that its ten-year delay was per-se unreasonable. R. 5. COGA asserted that the Endangerment

Finding is insufficient to justify listing GHGs under § 108 and is, itself, unsupported by law and

the administrative record. R. 5. The EPA argued that it did not have a non-discretionary duty to

list GHGs under § 108, that the regulatory complexities of potential action justified its deliberate

response, and that the Endangerment Finding is justified with respect to public welfare. R. 5. The

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EPA did not, however, defend the Endangerment Finding with respect to public health, arguing

instead that it was not legally valid. R. 5.

On September 1, 2020, the District Court issued its decision and order. R. 3. It granted

Plaintiff CHAWN’s motion for summary judgment in part, holding that 1) the Endangerment

Finding was valid with respect to an endangerment to public welfare, 2) the EPA had unreasonably

delayed action both on responding to Plaintiff's petition and on on designating GHGs as a criteria

pollutant, and 3) the EPA has a non-discretionary duty to list GHGs as a criteria pollutant. R. 13.

It ordered the EPA to publish notice of a proposed rule to designate GHGs as a criteria pollutant

within 90 days and publish a final rule within 180 days following publication of the proposed

rulemaking. R. 13-14. The court also granted Intervenor COGA’s cross motion for summary

judgment in part, holding that the portion of the Endangerment Finding that determined GHGs

presented a danger to public health is contrary to law. R. 14. The court discussed the issue of

whether jurisdiction was proper in the District of New Union, but determined that, as no defendant

raised the issue, it could decide the case. R. 5.

SUMMARY OF THE ARGUMENT

The District Court erred in determining that the Clean Air Act (“CAA”) § 307(b) is not

jurisdictional. 42 U.S.C. § 7607(b). The CAA’s jurisdictional effect is exhibited by a plain reading

of its text, its context within § 307(b), and § 307(b)’s historical treatment by several circuits. Id.

Therefore, the District Court did not have jurisdiction to hear plaintiff’s claims for unreasonable

delay.

The Supreme Court has already rejected plaintiff's absurd regulatory policy argument as it

pertains to § 202(a) of the CAA. The EPA must focus solely on the limited scientific question of

if greenhouse gasses (“GHGs”) are a threat to public health or welfare. Further, when making

scientific determinations, the EPA is given extreme deference. As the EPA admitted scientific

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uncertainties, made the data it relied upon publicly available, considered public comments, and the

scientific record supports its decision, it was rational for EPA to find public welfare is endangered

by GHGs. It was also rational for the EPA to rely on uncertain scientific data. The existence of

uncertain data is insufficient for the EPA to avoid its duty to determine if public health or welfare

is endangered. Moreover, as the CAA is precautionary, the underlying purpose of the CAA is to

prevent harm to public health and welfare, even when uncertainty exists.

While the EPA’s public welfare finding was correct, its finding in relation to public health

was not. When considering the EPA’s change in position, the EPA is entitled to deference in

relation to its power to persuade. Courts have long recognized that agencies are entitled to a change

in position to allow for flexibility over time. Here, the plain language of the CAA supports a

determination that only direct health effects can be considered when determining if there is an

endangerment to public health. Based on the use of public health and welfare within the CAA,

Congress intended separate meanings to be given to each.

The EPA’s decision making period has not been so long as to be considered unreasonably

delayed. The court should only take the drastic action of compelling agency action when the delay

is egregious. To determine if the decision making period is egregiously unreasonable the court

should apply the facts of the case to the six-factor test outlined in Telecommunications Research

& Action Center v. Federal Communications Commission (“TRAC”), 750 F.2d 70, 79-80 (D.C.

Cir. 1984). Considering these factors together in light of the complexity of the issue, it is clear that

the EPA’s decision making period is not egregiously unreasonable.

The EPA’s 2009 Endangerment Finding under § 202 did not trigger a non-discretionary

duty to list GHGs as a criteria pollutant under § 108. The EPA may infer that certain provisions of

the CAA use “air pollutant” to refer only to those pollutants that sensibly fit within particular

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regulatory programs. When read within the context of the National Primary and Secondary Air

Quality Standards (“NAAQS”) regulatory scheme, “air pollutant” cannot encompass GHGs

because such a construction would clash with the structure of that scheme and unduly strein

congressional intent. Even if the term “air pollutant” does encompass GHGs within § 108, the EPA

may still determine that the NAAQS regulatory program is not the appropriate tool with which to

control emissions.

STANDARD OF REVIEW

A District Court’s conclusions of law are reviewed de novo, while conclusions of fact may

only be set aside when they are clearly erroneous. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,

1069 (2020); Pullman-Stand. v. Swint, 456 U.S. 273, 288 (1982). Here, the District Court

predominantly considered legal questions, but reviewed the factual support for EPA’s 2009

Endangerment Finding. Accordingly, this Court should only set aside the District Court's

determination that the 2009 Endangerment Finding was valid with respect to an endangerment of

public welfare if it finds clear error, while it should review the rest of the order de novo. See

Guerrero-Lasprilla, 140 S. Ct. at 1069; Swint, 456 U.S. at 288.

ARGUMENT I. THE DISTRICT COURT DID NOT HAVE JURISDICTION TO HEAR THE

PETITIONER’S UNREASONABLE DELAY CLAIM.

The District Court did not have jurisdiction to hear the petitioner's unreasonable delay

claim over this national regulation1 as Clean Air Act (“CAA”) § 304 is a jurisdictional statute. See

42 U.S.C. § 7604. See, e.g., S. Ill. Power Coop. v. EPA, 863 F.3d 666, 670 (7th Cir. 2017). A statute

is jurisdictional when its “text, context, and relevant historical treatment” indicate that Congress

1 For a regulation to be national the test relates to if the regulation itself is nationally applicable, and not whether the complained effects are national. Natural Res. Def. Council v. Thomas, 838 F.23d 1224, 1249 (D.C. Cir. 1988). The District Court correctly determined, nor do any parties contest, that the potential categorization of greenhouse gases as criteria pollutants is an example of a national regulation. Id.

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clearly intended the statute to have jurisdictional effect and not be merely claim processing. See

Sebilius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013). When a statute governs the “rights

and obligations” owed between parties—like a venue provision— it is claim processing and

waivable; when a statute implicates the very authority a court has to hear a case it is jurisdictional

and non waivable. Kevin O. Leske, Cleaning Up Jurisdiction: Divining Cong. Intent of Clean Air

Act 307(B), 42 Ecology L.Q. 37, 39 (2015).

CAA § 304 and § 307(b) are both clearly intended to have jurisdictional effect when

conveying that unreasonable delay claims regarding a proposed national regulation “may…only”

be filled in the D.C. Circuit. § 7604(a); 7607(b). See, e.g., S. Ill. Power Coop., 863 F.3d at 670.

Petitioner brings its claims under § 304(a)’s unreasonable delay provision. § 7604(a). CAA § 304

provides that an unreasonable delay claim “may only be filed in a United States District Court

within the circuit in which such action would be reviewable under [CAA § 307(b)] of this title.”

Id. CAA § 307(b) then stipulates that “nationally applicable regulations… may be filed only in the

United States Court of Appeals for the District of Columbia.” § 7607(b).

A. The Plain Language of CAA § 307(b) is Unambiguous and Establishes Clearly That The Statute Is Intended to Be Jurisdictional.

CAA § 307(b)’s requirement that “nationally applicable regulations… may be filed only

in the United States Court of Appeals for the District of Columbia” plainly reads as a jurisdictional

provision. § 7607(b). The text of a statute does not need to “incant magic words” to be

jurisdictional; instead, it must show clear Congressional intention to limit subject matter

jurisdiction. Sebelius, 568 U.S. at 824. Traditional canons of statutory interpretation dictate that

analysis should begin with the text of the statute. See, e.g., Hartford Underwriters Ins. Co. v. Union

Planters Bank, 530 U.S. 1, 6 (2000).

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Phrases that imply a mandatory duty have sizeable “jurisdictional import.” See Sebilius,

133 S.Ct. at 824-5 (2013). The term “may only” is a mandatory canon of statutory language,

imposing a clear non-discretionary duty. See generally Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 112 (2012). “May” generally is interpreted to

imply discretion; however, the modifier “only” has been seen to function as a limitation on that

discretion. Writing Ctr. at GULC, A Guide To Reading, Interpreting And Applying Statutes 4

(2017). In the context of § 307(b), the “only” limits the discretion of plaintiffs to exclusively file

in the D.C. Circuit when their claims concern a national regulation. Id. Accordingly, the statute

plainly reads as a limitation on subject matter jurisdiction. Sebelius, 133 S. Ct. at 824.

B. The Form and Function of CAA § 307(b) Provides Contextual Evidence of Clearly Intended Jurisdictional Effect.

Further, the context of § 307(b) in the CAA’s statutory scheme supports jurisdictional

effect. § 7604(a); § 7607(b). A statue should be examined in both the context of how it functions

within a statutory scheme, and in the context of where it is located and labelled. See Utah v. EPA,

765 F.3d 1257, 1258-59 (10th Cir. 2014); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,

439 (2011). The Court has held that statutes waiving “sovereign immunity [are] jurisdictional in

nature.” Id. (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). CAA § 304(a) is a waiver of

sovereign immunity. See 7607(b); Friends of the Earth v. EPA, 934 F.Supp.2d 40, 45-46 (D.C.

Cir. 2013).

Firstly, § 307(b)’s location and label is probative of jurisdictional effect. § 7604(a); §

7607(b). CAA § 307(b) is incorporated by § 304(a) as the governing statute for the filling of

unreasonable delay claims. § 7604(a); § 7607(b). As § 304(a) is inherently jurisdictional it would

be imprudent to then consider any filing requirements adopted by it as claim processing. § 7604(a);

See Utah, 765 F.3d at 1260 (citing to Royster–Clark Agribusiness v. Johnson, 391 F.Supp.2d 21,

9

25–26 (D.D.C. 2005)). Congress went so far as to label § 307(b) “Jurisdiction.” § 7607(b). Courts

have seen these labels as contextual clues to indicate whether Congress intended jurisdictional

effect. See Shinseki, 562 U.S. at 439.

Secondly, in the context of the CAA’s statutory scheme § 307(b)’s function as a condition

on sovereign immunity requires that it be jurisdictional. See Block v. North Dakota ex rel. Bd. of

Univ. & Sch. Lands, 461 U.S. 273, 287 (1993). Conditions on waivers of sovereign immunity are

clearly jurisdictional, because failure to abide by a condition results in matters being brought

beyond Congressional consent. See Block, 461 U.S. at 287. The Court has held that “when

Congress attaches conditions to legislation waiving…sovereign immunity… those conditions must

be strictly observed.” See Id. In CAA § 307(b) Congress set strict conditions on whom it may be

sued by, for what grounds they may sue, when they may be sued, and where that suit may be

brought. § 7604(a); § 7607(b)(1); Utah 765 F.3d at 1260. To read § 307(b) as merely a venue

provision would be a judicial expansion of the extent of Congressional waiver of sovereign

immunity in § 304(a). See Id; Block, 461 U.S. at 287.

C. Courts Have Historically Treated § 307(b) as Conferring in the D.C. Circuit Exclusive Authority to Hear Unreasonable Delay Claims for National Regulations.

Lastly, courts historically have treated § 307(b) as a jurisdictional statute. See, e.g., Am.

Lung Ass’n v. Reilly, 962 F.2d 258, 262 (2nd Cir. 1992). See also Sierra Club v. E.P.A., 955 F.3d

56, 65 (D.C. Cir. 2020) (Wilkins, R., concurring). The weight of precedent among the several

circuits supports clear Congressional intention that § 307(b) has jurisdictional effect. Sierra Club,

955 F.3d at 65; Utah, 765 F.3d 1260-61; American Lung, 962 F.2d at 262; Maine v. Thomas, 874

F.2d 883, 886 (1st Cir. 1989). The Supreme Court has also alluded to the jurisdictional effect of §

307(b) in dicta . See Util. Air Reg. Grp. (UARG) v. EPA., 573 U.S. 302, 313 (2014); Whitman v.

Am. Trucking Ass'ns, 531 U.S. 457, 463 (2001).

10

The Supreme Court through dicta has referenced the jurisdictional nature of § 307(b). See

Util. Regulatory, 573 U.S. at 313 (holding petitioners claims were permissive under § 307(b));

Whitman, 531 U.S. at 463. For instance, in Whitman v. American Trucking Ass’n, the court found

no trouble with the lower court’s explicit holding that the D.C. Circuit had exclusive jurisdiction

over national regulations. 531 U.S. at 463; American Trucking Ass’n v. E.P.A., 195 F.3d 4, 8-9

(D.D.C. 1999). Since jurisdiction can be raised sua sponte, the Supreme Court’s acquiesce to the

lower court’s determination that § 307(b) confers jurisdiction provides some insight to how the

Court interprets § 307(b). Whitman, 531 U.S. at 463; Leske, supra, at 1.

The District Court in finding that § 307(b) is a venue provision relied on overturned

precedent in Texas Municipal Power Agency v. EPA, 89 F.3d 858 (D.C. Cir. 1996). In two later

decisions, in Sierra Club v. EPA, 955 F.3d 56, 60-61 (D.C. Cir. 2020), and in Alon Refining Krotz

Springs v. EPA, 936 F.3d 628, 642 (D.C. Cir. 2019), the D.C. Circuit held that § 307(b) grants

them exclusive jurisdiction to hear all EPA final actions of nationwide regulations. Notably,

quoting the Supreme Court, in Whitman, the D.C. Circuit in Alon Refining adopted the APA’s

definition of final action which includes “failure to act.” 5 U.S.C. § 551(13); Alon, 936 F.3d at 642

(quoting Whitman, 531 U.S. at 478). As an unreasonable delay claim is inherently an alleged

“failure to act” it is clear that the D.C. Circuit now interprets § 307(b) as conferring in them

exclusive jurisdiction to hear challenges to national regulations. Sierra Club v. Thomas, 828 F.2d

728, 213 (D.C. Cir. 1987) (holding that the definition of final action permitted jurisdiction for

unreasonable delay).

Further, the District Court additionally erred in relying on New York v. EPA which has also

been overturned by the United States Court of Appeals for the Seventh Circuit. See S. Ill., 863 F.3d

666, 670; New York. v. EPA, 133 F.3d 987, 990 (7th Cir. 1998). In Southern Illinois Power

11

Cooperative v. EPA, 863 F.3d 666, 673 (7th Cir. 2017), the Seventh Circuit unambiguously held

that “if the challenged rule is ‘nationally applicable,’ the D.C. Circuit is the exclusive forum for

judicial review.” Id. The 7th Circuit rooted their reasoning in “the straightforward (if wordy)

statutory text” that vested in the D.C. Circuit exclusive jurisdiction to adjudicate all national

regulations. Id. at 670.

In addition, the Seventh, D.C. Circuits and other Circuits have treated § 307(b) as

jurisdictional. See Reilly, 962 F.2d at 262; Thomas, 874 F.2d at 885; Utah, 765 F.3d at 1260. In

American Lung Ass’n v. Reilly and in Thomas, the Second Circuit determined that § 307(b) held

that challenges to national regulations are “only reviewable” in the D.C. Circuit. Reilly, 962 F.2d

at 262; Thomas, 689 F.Supp. at 259. Further, in State Of Maine v. Thomas, the 1st Circuit held that

for national regulations “review petitions can only be brought in the United States Court of Appeals

for the District of Columbia.” 874 F.2d at 886. Additionally, the 10th Circuit in numerous opinions

has held that § 307(b) is jurisdictional. See, e.g., Utah, 765 F.3d at 1260 (determining the filing

deadline requirements were jurisdictional); Oklahoma v. EPA, 723 F.3d 1201 (10th Cir. 2013).

II. THE 2009 ENDANGERMENT FINDING SHOULD BE UPHELD AS IT RELATES TO PUBLIC WELFARE.

The EPA correctly found that greenhouse gasses (“GHGs”) “may reasonably be

anticipated” to endanger public welfare under § 202(a) of the Clean Air Act (“CAA”) for two

reasons. 74 FR 66,497. First, policy judgments, while possibly appropriate for downstream

regulatory consequences, are irrelevant for a determination of welfare. Coal. for Responsible

Regul., Inc. v. EPA, 684 F.3d 102, 118-19 (D.C. Cir. 2012). Second, in light of the deference the

EPA is awarded when making scientific determinations, it was rational for the EPA to find public

welfare was endangered as it relates to public welfare and rely on uncertain scientific data. See

12

Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009); Massachusetts v. EPA, 549

U.S. 497, 534 (2007); Ethyl Corp. v. EPA, 541 F.2d 1, 43 (D.C. Cir. 1976).

A. The Supreme Court has Already Rejected the Absurd Regulatory Policy Argument within the Context of CAA § 202(a).

The decision to issue the Endangerment Finding was within the EPA’s authority and is

entitled to deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 865 (1984). (“The

responsibilities for assessing the wisdom of such policy choices and resolving the struggle between

competing views of the public interest are not judicial ones.”). When strict adherence to a statute

would lead to an “absurd outcome,” courts should typically interpret the statute differently. See

Stovic v. RRB, 826 F.3d 500, 505 (D.C. Cir. 2016). Yet under the text of CAA § 202(a)(1), when

answering the limited question of if an endangerment exists, the EPA is only required to make

scientific judgments “about the potential risks greenhouse gas emissions pose to public health or

welfare—not policy discussions.” Coal. for Responsible Regul., Inc, 684 F.3d at 117-18; See

Massachusetts, 549 U.S. at 533-34. Policy judgments related to regulation of GHGs under a

separate section of the CAA may be relevant within the context of regulation, but have no bearing

on the limited statutory question at hand: if GHGs present in the atmosphere endanger public

welfare. Coal. for Responsible Regul., Inc., 684 F.3d at 118-19.

The Supreme Court and the D.C. Circuit, which has a special role in “resolving challenges

to regulations of national import,” have already rejected an absurd results argument. R. at 9 (citing

42 U.S.C. § 7607(b)); see Massachusetts, 549 U.S. at 532; Coal. for Responsible Regul., Inc., 684

F.3d at 119. The Supreme Court in Massachusetts v. EPA held that the EPA has the authority to

potentially regulate GHGs under the CAA. 549 U.S. at 532; Coal. for Responsible Regul., Inc.,

684 F.3d at 119. Section 202(a)(1) of the CAA requires that the EPA “shall by regulation prescribe.

. . standards applicable to the emission of any air pollutant from any class or classes of new motor

13

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). Looking at the text, Congress did not allow the EPA to consider effects of regulation

when issuing an endangerment finding. See id.; Coal. for Responsible Regul., Inc., 684 F.3d at

119. Even “if the degree of regulation triggered might at a later stage be characterized as ‘absurd,’”

that is a separate consideration from the prescribed task of finding for or against endangerment to

public health or welfare. See 42 U.S.C. § 7521(a)(1); Coal. for Responsible Regul., Inc., 684 F.3d

at 119.

While typically “interpretations of a statute which would produce absurd results are to be

avoided,” that is only the case “if alternative interpretations consistent with the legislative purpose

are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Not only are

alternative interpretations unavailable under the plain meaning of CAA § 202(a), holding

otherwise would conflict with the CAA’s purpose and legislative history. See Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 491-92 (2001) (Breyer, concurring); Union Elec. Co. v. EPA, 427

U.S. 246, 257 (1976); S. REP. NO. 101-228, at 5 (1989). The CAA 1970 amendments were

“expressly designed to force regulated sources to develop pollution control devices that might at

the time appear to be economically or technologically infeasible.” Am. Trucking, 531 U.S. at 491-

92 (Breyer, concurring); Union Elec, 427 U.S. at 257. A priority in protecting public health and

welfare was noted in the 1989 Senate Report, which explained that the 1990 amendments required

protection of public health and welfare “‘without regard to the economic or technical feasibility of

attainment.’" Am. Trucking, 531 U.S. at 492 (Breyer, concurring) (citing S. REP. NO. 101-228, at

5 (1989)). CAA’s legislative history clearly supports the notion that Congress intended to require

endangerment findings if public health or welfare was at risk, regardless of how feasible it was for

14

regulations to be carried out in effect. See Am. Trucking, 531 U.S. at 491-92 (Breyer, concurring);

Union Elec, 427 U.S. at 257; S. REP. NO. 101-228, at 5 (1989).

B. The Scientific Record Clearly Supports the Endangerment Finding.

This court should award the EPA extreme deference when reviewing the scientific data

underlying the Endangerment Finding. See Coal. for Responsible Regul., 684 F.3d at 120; Am.

Farm Bureau, 559 F.3d at 519 (D.C. Cir. 2009). Agencies are awarded “an ‘extreme degree of

deference’” when it comes to judicial review of “‘scientific data within [the agency’s] technical

expertise.’” Am. Farm Bureau, 559 F.3d at 519 (quoting City of Waukesha v. EPA, 320 F.3d 228,

248 (D.C. Cir. 2003)). Further, a court’s opinion on an agency determination is irrelevant, as “a

court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency factual determinations are lawful unless

the action is found to be arbitrary and capricious. See id. So long as there existed a rational basis

in the EPA’s conclusion, the court should uphold the scientific record at issue. See id.; Am. Farm

Bureau, 559 F.3d at 519; Ethyl Corp., 541 F.2d at 43.

1. The EPA’s Listing Meets all Rational Basis Factors. A number of factors go into determining if a rational basis existed for an agency’s decision

based on the scientific record. See Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690

F.3d 9, 27-28 (1st Cir. 2012). Relevant factors include (1) “‘[a]dmission of uncertainties where

they exist,’” (2) “‘public exposure of the assumptions and data incorporated into the analysis,’”

(3) “‘the acceptance and consideration of public comment,’ and, ultimately,” (4) if “a decision. .

.reflects the rule of reason.” Upper Blackstone Water, 690 F.3d at 27-28 (citing Sierra Club v.

Costle, 657 F.2d 298, 334, n.130 (D.C. Cir. 1981)).

In the Endangerment Finding, the EPA examined scientific data relating to GHGs, which

is firmly within the technical expertise of the EPA. See Coal. for Responsible Regul., 684 F.3d at

15

120; Am. Farm Bureau, 559 F.3d at 519; see generally 74 FR 66,496. The EPA published a

Technical Support Document (“TSD”), a compilation of the scientific data the EPA relied upon in

the Endangerment Finding. See 74 FR 66,499; U.S. EPA, Technical Support Document for

Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of

the Clean Air Act at ES-1 (2009) (hereinafter “TSD”). Throughout the TSD, the EPA noted

scientific uncertainties in the data the EPA relied upon. See generally TSD. The EPA explained at

the beginning of the TSD that “[u]ncertainties and confidence levels associated with the scientific

conclusions and findings in this document are reported, to the extent that such information was

provided in the original scientific reports.” Id. at 6. The TSD went on to explain why there is

uncertainty in scientific data and laid out a confidence scale so readers could understand the

uncertainty of specific data. Id. at 7. For example, when discussing the effect of GHGs on crops,

the TSD admitted uncertainty existed, and utilized the confidence scale in reference to specific

data cited. Id. at 21. The EPA again admitted uncertainties when summarizing scientific findings

in the Endangerment Finding. See generally 74 FR 66,507-43.

The EPA was also transparent regarding the data used and underlying assumptions made

in the Endangerment Finding. See id. at 66,497, 66,511-12. The EPA stated that it mainly relied

on “major assessments by the U.S. Global Climate Research Program (USGCRP), the

Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC).”

Id. at 66,497. Not only did the EPA alert the public to the primary data it relied on, it also explained

its basis for doing so. Id. at 66,511 (“[n]o other source. . .provides such a comprehensive and in-

depth analysis across such a large body of scientific studies, adheres to such a high and exacting

standard of peer review, and synthesizes the resulting consensus view of a large body of scientific

16

experts across the world.”). The EPA’s transparency and justification in the data used further

favors acceptance of the scientific record. See Costle, 657 F.2d at n.130.

The EPA responded directly to public comments in the Endangerment Finding. See 74 FR

66,512. The EPA explained that it considered public comments directed toward the sufficiency of

the scientific record and reviewed studies suggested by commenters. See id. The EPA reviewed

these studies “largely to see if they would lead EPA to change or place less weight on the

judgments reflected in the assessment report.” Id.

Finally, the “EPA had before it substantial record evidence that anthropogenic emissions

of greenhouse gases ‘very likely’ caused warming of the climate over the last several decades.”

Coal. for Responsible Regul., 684 F.3d at 121. This again evidences a rational basis finding, as it

goes toward the last factor, that the decision reached is reasonable. See Upper Blackstone Water,

690 F.3d at 27-8 (citing Costle, 657 F.2d at 334 & n.130); 74 FR 66,511, 66,534-35. The EPA

stated that it had “no reason to believe that the assessment reports do not represent the best source

material. . .on the issues central to making an endangerment decision with respect to greenhouse

gases.” 74 FR 66,535.

All factors support upholding the EPA’s Endangerment Finding as it pertains to public

welfare. See Upper Blackstone Water, 690 F.3d at 27-28 (citing Sierra Club, 657 F.2d at 334 &

n.130). The D.C. Circuit agrees. See Coal. for Responsible Regul., 684 F.3d at 121-22 (finding the

record supported a finding of endangerment in regards to public welfare).

2. Precedent and the Underlying Purpose of the CAA Supports the Use of Uncertain Scientific Data.

The Supreme Court specifically said in Massachusetts that the EPA cannot avoid its

mandate under CAA § 202(a)(1) by blaming scientific uncertainty. 549 U.S. at 534. Scientific

uncertainty could only serve as a scapegoat in rare cases where “scientific uncertainty is so

17

profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases

contribute to global warming.” Id. The relevant statutory question “is whether sufficient

information exists to make an endangerment finding,” not if scientific uncertainty exists. Id. In

fact, “[r]equiring that EPA find ‘certain’ endangerment of public health or welfare before

regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it

in § 202(a)—utilizing emission standards to prevent reasonably anticipated endangerment from

maturing into concrete harm.” Coal. for Responsible Regul., 684 F.3d at 122.

Moreover, “[a]waiting certainty will often allow for only reactive, not preventive,

regulation.” Ethyl Corp., 541 F.2d at 25. This is in direct contrast with the congressional intent of

the CAA. See Massachusetts, 549 U.S. at FN 7; H.R. REP. NO. 95-294, at 49 (1977), reprinted in

1977 U.S.C.C.A.N. 1077, 1127-28. In Ethyl v. EPA, the court held that the purpose of the CAA

was to regulate GHGs to prevent harm to public welfare and health, even if uncertainty is present.

541 F.2d at 25. Congress then amended CAA § 202(a)(1) in 1977 to incorporate Ethyl’s holding.

Massachusetts, 549 U.S. at FN 7; H.R. REP. NO. 95-294, at 49 (1977), reprinted in 1977

U.S.C.C.A.N. 1077, 1127-28. The corresponding House Report explains that the purpose of the

1977 amendments was to “emphasize the preventive or precautionary nature of the act, i.e., to

assure that regulatory action can effectively prevent harm before it occurs,” and to “authorize the

Administrator to weight risks and make reasonable projections of future trends.” H.R. REP. NO.

95-294, at 49 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1127. Therefore, to find for COGA

would not only go against Supreme Court and D.C. Circuit precedent, but also go against the

express purpose laid out in the legislative history of the CAA. See Massachusetts, 549 U.S. at FN

7; Coal. for Responsible Regul., 684 F.3d at 122; Ethyl Corp., 541 F.2d at 25.

18

III. THE 2009 ENDANGERMENT FINDING IS INVALID AS IT RELATES TO PUBLIC HEALTH.

In the Endangerment Finding, the EPA relied on indirect effects of air pollutants when

determining an endangerment to public health existed. See generally 74 FR 66,496; R. at 10. That

was an error, as the proper interpretation of public health within the Clean Air Act (“CAA”) as

intended by Congress is to solely consider direct health effects. R. at 10.

A. The EPA is Entitled to Deference Under Skidmore.

The EPA is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

See United States v. Mead Corp., 533 U.S. 218, 221, 226, 234 (2001). In United States v. Mead

Corp., the Supreme Court held that Chevron did not overrule its holding in Skidmore that “an

agency's interpretation may merit some deference whatever its form, given the ‘specialized

experience and broader investigations and information’ available to the agency.” 533 U.S. at 234

(quoting Skidmore, 323 U.S. at 139). The standard set out in Skidmore as articulated in Mead is

that while deference should “vary with circumstances,” factors to consider are “the degree of the

agency's care, its consistency, formality, and relative expertness, and. . .the persuasiveness of the

agency's position.” Id. at 228 (citing Skidmore, 323 U.S. at 139, 140). When agencies make

decisions that do not “carry the force of law,” deference should be awarded “proportional to its

‘power to persuade.’” Id. at 221, 235 (quoting Skidmore, 323 U.S. at 140).

B. Agencies are Entitled to a Change in Position.

The EPA recognizes that interpreting public health to encompass only direct health effects

constitutes a change in agency position from the Endangerment Finding. See 74 FR 66,528-29.

Nonetheless, agencies are allowed, and in fact encouraged, to change positions in certain

situations. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 863-64 (1984). The Supreme Court

reasoned that “[a]n initial agency interpretation is not instantly carved in stone” and agencies “must

19

consider varying interpretations and the wisdom of its policy on a continuing basis.” Id. Moreover,

there does not have to be a change in circumstances to warrant a change in position, as an

“‘agency’s view of what is in the public interest may change, either with or without a change in

circumstances.’” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57

(1983) (quoting Greater Bos. Television Corp. v. FCC, 444 F.2d at 852 (1970); Am. Farm Bureau

Fed’n v. EPA, 559 F.3d 512, 521-22 (D.C. Cir. 2009).

When an agency has a change in position, courts should not impose a harsher standard of

review. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Philip Morris USA,

Inc. v. Vilsack, 736 F.3d 284, 290 (4th Cir. 2013). In the case at hand, the EPA’s change in position

should be reviewed under the Skidmore standard as outlined above. See Mead, 533 U.S. at 234;

Skidmore, 323 U.S. at 139, 140. When rationalizing a change in position to a reviewing court, “it

suffices that the new policy is permissible under the statute, that there are good reasons for it, and

that the agency believes it to be better, which the conscious change of course adequately indicates.”

Fox Television, 556 U.S. at 515; Philip Morris, 736 F.3d at 290. This goes to the longstanding

principle that courts should refrain from imposing their own opinion at the expense of agency

expertise. See Chevron, 467 U.S. at 844; Philip Morris, 736 F.3d at 290.

C. The Plain Language of the CAA Dictates That the Endangerment Finding can Only Consider Direct Health Effects.

Agencies can justify policy changes by “explaining why [the new] policy ‘is more

consistent with statutory language’” than the old one. Encino Motorcars, LLC v. Navarro, 136 S.

Ct. 2117, 2127 (2016) (quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175

(2007)). The CAA fails to define public health but does define public welfare. See generally 42

U.S.C. § 7401; 42 U.S.C. § 7602(h); Massachusetts v. EPA, 549 U.S. 497, 506 (2007). Congress

specifically included impacts on climate within the definition of welfare. 42 U.S.C. § 7602(h) (“All

20

language referring to effects on welfare includes. . .effects on. . .climate.”). In comparison, in early

clean air legislation, the definition of public health was understood as “‘the health of the

community.’” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 465 (2001). Since then, the Supreme

Court has defined public health as “the health of the public.” Id. As this definition fails to clear up

uncertainty as to if public health relates to direct or indirect effects of GHGs, our inquiry does not

stop there. See generally id.

The context of public health and welfare with the CAA is central to determining intent. See

Davis v. Mich. Dep't of the Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of

statutory construction that the words of a statute must be read in their context and with a view to

their place in the overall statutory scheme.”). Public health and welfare were both used within the

same subsection of the CAA, which implies Congress intended each to have a unique meaning.

See SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (“It is a well-established canon of

statutory interpretation that the use of different words or terms within a statute demonstrates that

Congress intended to convey a different meaning for those words.”). To interpret public health as

CHAWN suggests would do the opposite, as it would require incorporating one of the stated factors

of public welfare, climate, into public health. See 42 U.S.C. § 7602(h). This interpretation would

give public health and welfare a combined meaning that would render distinction superfluous. See

id. at §§ 7602(h), 7521(a); Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon

against surplusage is strongest when an interpretation would render superfluous another part of the

same statutory scheme.”).

Further proof that Congress meant for public health and welfare to have different meanings

is evident in the regulatory scheme. See 42 U.S.C. §§ 7502(a)(2)(A), (B). While primary National

Primary and Secondary Air Quality Standards (“NAAQS”) are put in place to curtail endangerment

21

to public health, secondary NAAQS are put in place to curtail endangerment to public welfare. Id.;

NAAQS Table, EPA, https://www.epa. gov/criteria-air-pollutants/naaqs-table. Since the regulatory

consequences of an endangerment finding for public health differs from a finding of public

welfare, public health cannot be read in a way that goes against another portion of the same statute.

See Marx, 568 U.S. at 386.

D. A Change in Position During Litigation Does Not Outweigh Other Skidmore Factors.

While consistency supports persuasiveness under Skidmore, it is only one factor and not

dispositive. Mead, 533 U.S. at 228 (citing Skidmore, 323 U.S. at 139, 140); McMaster v. United

States, 731 F.3d 881, 892 (9th Cir. 2013). When changing positions, agencies must be “cognizant

that longstanding policies may have ‘engendered serious reliance interests that must be taken into

account.’” Navarro, 136 S. Ct. at 2126 (quoting Fox Television, 556 U.S. at 515). There is no

longstanding EPA policy of considering only indirect or direct public health effects. See 74 FR

66,527. If anything, courts and the EPA have shown a tendency to favor direct evidence of

pollutants' effect on public health. See Cmtys. for a Better Env't v. EPA, 748 F.3d 333, 336 (D.C.

Cir. 2014). For example, although the EPA found that carbon monoxide can negatively affect

health, it declined to rule that it affected public health. See id. at 334. Part of its reasoning was that

studies showed “only that carbon monoxide emissions at the levels of the primary standards

correlate with adverse health effects, not that emissions at those levels cause those health effects.”

Id. at 336. The D.C. Circuit upheld the EPA’s determination. See id. at 337. Further, the EPA has

not imposed any regulations since issuing the Endangerment Finding. See R. at 7. Compared to

instances where there was decades of reliance, since no regulations have been imposed, there are

no reliance concerns at issue. See id.; Navarro, 136 S. Ct. at 2126.

22

Similarly, the fact that the EPA articulated a new position in litigation is not dispositive.

See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988). Although awarding deference

to an agency’s litigation position has been viewed as inappropriate in some contexts, the case at

hand can be differentiated. See id. at 213. In one case, the court noted that deference should not be

awarded when the agency’s litigating position is “wholly unsupported by regulations, rulings, or

administrative practice.” Id. at 212. Yet that case predated Mead, which explained agency

decisions that failed to follow proper procedures can still be awarded deference if certain factors

are met. See generally id.; See Mead, 533 U.S. at 234 (quoting Skidmore, 323 U.S. at 139).

When interpreting a statute, courts must seek to give meaning to congressional intent. See

Chevron, 467 U.S. at 842-43. As outlined above, the EPA’s interpretation of public health is proper

when considering the CAA as a whole. See 42 U.S.C. §§ 7502(a)(2)(A), (B), 7602(h); Marx, 568

U.S. at 386; McMaster, 731 F.3d at 893; McCarthy, 322 F.3d at 656. Further, the EPA’s old

position should not be awarded Chevron deference. See Chevron, 467 U.S. at 844. As Chevron

dictates, agencies are entitled to changing positions based on both a need for flexibility and agency

expertise. See id. at 863-64. This court should not disregard the EPA’s expertise solely due to

improper procedure. See Mead, 533 U.S. at 231 (noting that “the want of. . .[notice-and-comment]

procedure. . .does not decide the case, for we have sometimes found reasons for Chevron deference

even when no such administrative formality was required and none was afforded.”). The

underlying rationale of affording agencies deference is that agencies are the experts. See Mead,

533 U.S. at 227-28; Chevron, 467 U.S. at 865; State Farm, 463 U.S. at 43; Philip Morris, 736 F.3d

at 295. So, if an agency determines that its own decision is no longer valid, the rationale for

deference is no longer present. See Mead, 533 U.S. at 228; State Farm, 463 U.S. at 43; Philip

Morris, 736 F.3d at 295.

23

IV. THE LENGTH OF THE EPA’s DECISION PERIOD HAS NOT BEEN EGREGIOUSLY UNREASONABLE ACCORDING TO THE SIX-FACTOR TRAC TEST.

Given the gravity and complexity of the proposed regulation to list greenhouse gasses

(“GHGs”) as criteria pollutants, under Clean Air Act (“CAA”) § 108(a), the EPA’s decision-

making period has not been unreasonable. 42 U.S.C. § 108(a); Telecommunications Research &

Action Center v. Federal Communications Commission (“TRAC”), 750 F.2d 70, 79-80 (D.C. Cir.

1984). A court can only compel agency action for unreasonable delay if the decision-making

period is egregious. See Allied Chemical Corp v. Daiflon, 499 U.S. 33, 34 (1980); In Re NRDC,

956 F.3d 1134, 1138 (9th Cir. 2020). To determine unreasonable delay a court should apply the six-

factor TRAC2 test to the particular facts of the case in light of the complexity of the issue. TRAC,

750 F.2d at 79-80. Given this heightened standard of review it is clear the EPA has not had such

an unreasonable decision period as to warrant the drastic action of judicial intervention. See

generally, e.g., Sierra Club v. Thomas, 828 F.2d 783, 797-98 (D.C. Cir. 1987); TRAC, 750 F.2d at

79-80.

A. The District Court Erred By Not Applying All Six TRAC Factors To the Particular Facts Of the Matter.

Even assuming that the EPA can regulate GHGs under § 108(a), and will elect to do so,

the process required to determine whether it should regulate them is complex, resource consuming

and the regulation itself unlike any other considered by the EPA. 74 FR 66496; See In re Core

2 “(1) the time agencies take to make decisions must be governed by a “rule of reason,” . . . ; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, . . . ; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; . . . ; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, . . . ; (5) the court should also take into account the nature and extent of the interests prejudiced by delay, . . . ; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.” R. at 12 (citing to Telecomm. Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984))

24

Commc’n, 531 F.3d 849 at 856 (only one pollutant considered). A determination of reasonableness

or unreasonableness should only be reached after the particular facts of the case viewed in light of

the complexity of the proposed regulation are applied to each TRAC factor. Air Lines Pilot Ass’n

v. C.A.B., 750 F.2d 81, 86 (D.C. Cir. 1984); In re Pesticide Action Network, 532 Fed.Appx. at 651.

Simply put, “[t]here is no per se rule as to how long is too long to wait for agency action.” In re

Core Commc'n, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008); (quoting In re Am. Rivers & Idaho Rivers

United, 372 F.3d 413, 419 (D.C. Cir. 2004)). Instead, courts should adopt a flexible standard of

reasonableness decided in relation to the complexity of the issue, and the “general and specific

problems” that the agency encounters in reaching their determination. See Blankenship, 587 F.2d

at 334.

Unlike previous unreasonableness determinations, the EPA is not considering one alleged

pollutant, but six. In re A Cmty. Voice v. EPA, 878 F.3d 779, 780 (9th Cir. 2017); In re Pesticide

Action Network, 532 Fed.Appx. at 651. The EPA acting as a prudent regulator would be remiss

not to explore the alleged six pollutants individually, collectively, and explore the severability of

each from the category of GHGs.

B. When the Six TRAC Factors Are Applied in Light of the Complexity of the Regulation, the EPA’s Decision Making Period is not Egregiously Unreasonable.

Accordingly, when the present facts are applied to the TRAC factors, it is clear that the

EPA has not acted egregiously unreasonably. TRAC, 750 F.2d at 79-80. No one factor is dispositive

as all must be given equal weight, and the analysis of each factor must be viewed in light of the

complexity of the issue. See TRAC, 750 F.2d at 80; Thomas, 828 F.2d at 797.

The first and second TRAC factors should be considered together for the “rule of reason”

governing the decision-making period “must take into consideration any congressional

25

expectations or mandates regarding the speed at which a proceeding should advance.” Beyond

Pesticides/Nat’l Coal. Against the Misuse of Pesticides v. Johnson, 407 F.Supp.2d 38, 40 (D.C.

Cir 2005); Cutler v. Hayes, 818 F.2d 979, 897 (D.C. Cir 1987). Absent a congressional mandate

for expeditious action “considerable deference” must be granted to the EPA on how to proceed

with agency actions. Thomas, 828 F.2d at 797. CAA § 108(a) lacks a mandatory deadline, or a

clear congressional mandate for quick action; therefore, the EPA should be given deference for

both TRAC factors. 42 U.S.C. § 7408; Thomas, 828 F.2d at 797.

Given the considerable deference the EPA is afforded, petitioner’s impatience with the

EPA in determining a complex and novel regulatory issue hardly raises to the egregious level that

would violate the “rule of reason.” TRAC, 750 F.2d at 80; In re Pesticide Action Network, 532 Fed.

Appx. at 651; Thomas, 828 F.2d at 797. The EPA’s consideration of GHGs as a criteria pollutant—

a category including six different pollutants—involves extraordinarily complex and far reaching

economic and environmental consequences. 74 FR 66,496. This present matter is radically

different from other unreasonable delay determinations where the rule of reason had been violated.

Compare R. at 9 (seven chemicals), with Pesticide Action Network N. Am., 798 F.3d at 811

(considering one pesticide) and In Re Core Commc’ns, Inc., 531 F.3d 849 (considering one

license). For example, in In Re Pesticide Action Network, the D.C. Circuit found a seven-year

delay on a petition to ban one pesticide outside the rule of reason as the EPA had continually

provided a “road map for further delay.” Pesticide Action Network N. Am., 798 F.3d at 811. Here,

not only is the EPA considering six times the number of chemical compounds, but has additionally

provided no timeline or roadmap that would further delay the matter. R. at 6. Instead, the EPA has

diligently analyzed GHGs as a prudent regulator—petitioners’ frustrations with the EPAs approach

26

are overcome with the considerable deference the EPA is afforded and the complexity of this

regulation. Thomas, 828 F.2d at 797.

The third TRAC factor, states that delays reasonable for economic regulation are less

tolerable when public welfare is at stake, is not implicated as the EPA has mitigated potential harm

to the public welfare. TRAC, 750 F.2d at 80. Due to the nature of the facts, the fifth TRAC factor’s

analysis, which considers other interests prejudiced by delay, overlaps with the third factor as the

other interest prejudiced is the public welfare. See In Re Barr, 930 F.2d at 75 (noting how the facts

of the case can blend the analysis of the two together); TRAC, 750 F.2d at 80. Contrary to the

District Court’s determination these factors are not dispositive as “virtually the entire [EPA

docket]…involves issues of this type.” Id. Instead, courts should weigh these factors

proportionately, and consider any “alternative means of eliminating or reducing the hazard” taken

by the EPA Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir 1987).

The EPA has taken broad and effective actions to mitigate potential harm caused by GHGs.

See EPA, Center For Corporate Climate Leadership: GHG Reduction Programs & Strategies,

https://www.epa.gov/climateleadership/center-corporate-climate-leadership-ghg-reduction-

programs-strategies. Mitigating actions taken include a mix of regulation, public grants, and local

partnerships, all with the express goal at reducing GHG emissions. Id. Some notable examples

include a 2020 regulatory rule reducing methane emissions from municipal landfills, a 2015

regulation reducing GHG emissions from power plants, and tens of millions of dollars in grant

money to facilitate the adoption of green technology. Id.

The fourth TRAC factor, considering other agency interests prejudiced by expedited action,

is favorable to the EPA as judicial intervention would prejudice other valid agency regulatory

priorities. TRAC, 750 F.2d at 80. See also EDF v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970).

27

Courts are “ill suited” to force agency action and should be “hesitant to upset an agency's priorities

by ordering it to expedite one specific action, and thus to give it precedence over others.” Thomas,

828 F.2d at 797. The EPA, in addition to its other environmental regulatory duties, has been

directed by executive order to prioritize economic prosperity. Reducing Regulation and

Controlling Regulatory Costs, Exec. Order 13771, 82 Fed. Reg. 9,339 (Feb. 3, 2017). A finding

of unreasonableness would simply be “putting [petitioner] at the head of the queue” drawing the

EPA’s finite resources away from its current main mandate, and prejudice all other EPA

environmental regulatory objectives of higher priority by depriving them of resources. In re Barr

Labs., 930 F.2d 72, 75 (D.C.Cir.1991).

The sixth TRAC factor, which considers whether an agency acted in bad faith, is not

implicated as the petitioner has failed to overcome “the well-established presumption that public

officials ... act in good faith.” TRAC, 750 F.2d at 80; Bayshore Res. Co. v. U.S., 2 Cl. Ct. 625, 632

n. 4 (1983) (citing to US v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). To succeed, the

petitioner must show some targeted “bad treatment or assert [the EPA had] utter indifference to a

congressional deadline.” In Re Bar, 930 F.2d at 76. In this particular matter, there is both a

complete absence of a congressional deadline or evidence that the EPA singled out the petitioner.

42 U.S.C. § 7408; R. at 6-8. With the presumption in the EPA’s favor, the EPA asserts that there

has been clearly no showing that the EPA has acted in bad faith. See TRAC, 750 F.2d at 80;

Bayshore, 2 Cl. Ct. at 632 n.4.

V. THE 2009 ENDANGERMENT FINDING DID NOT TRIGGER A NON-DISCRETIONARY DUTY TO DESIGNATE GREENHOUSE GASES AS A CRITERIA POLLUTANT UNDER CAA § 108.

The EPA’s 2009 determination that greenhouse gases (“GHGs”) pose a threat to health and

welfare under Clean Air Act (“CAA”) § 202 did not trigger a non-discretionary duty to list GHGs

under § 108. Section 108 requires the EPA Administrator to publish and periodically revise a list

28

of “air pollutants” that “may reasonably be anticipated to endanger public health or welfare,” “the

presence of which in the ambient air results from numerous or diverse mobile or stationary

sources,” and “for which air quality criteria had not been issued before December 31, 1970 but for

which he plans to issue air quality criteria under this section.” 42 U.S.C. § 7408(a)(1). Once listed,

these pollutants fall under a robust national regulatory program, the National Primary and

Secondary Air Quality Standards (“NAAQS”), that combines federal and state action to reduce

emissions. See 42 U.S.C. § 7409; NRDC, Inc. v. Train, 545 F.2d 320, 322-23 (2d Cir. 1976).

A. The Term “Air Pollutant,” as it Appears in § 108, does not Encompass GHGs.

The EPA’s 2009 endangerment finding under § 202 did not trigger a non-discretionary

duty to list GHGs as a criteria pollutant under § 108 because the term “air pollutant,” as it appears

in § 108, does not encompass GHGs. See Util. Air Reg. Grp. (UARG) v. EPA., 573 U.S. 302, 319,

320 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 159 (2000). The

meaning of the term “air pollutant” varies throughout the CAA and must be understood within the

context of each regulatory program in which it appears. See UARG, 573 U.S. at 319. When read

within the context of the NAAQS regulatory scheme, the term cannot encompass GHGs because

such a construction would clash with that program’s structure. See UARG, 573 U.S. at 320.

Furthermore, interpreting the term “air pollutant” as encompassing GHGs within § 108 would pull

extraordinary regulatory power from ambiguous language and ignore Congress’s refusals to extend

similar authority to the agency. See Brown & Williamson, 529 U.S. at 133, 159.

1. The term “Air Pollutant” Does not Include Greenhouse Gases in all Sections of the Clean Air Act.

The meaning of “air pollutant” varies throughout the CAA. UARG, 573 U.S. at 319. While

the Act-wide definition of “air pollutant” includes GHGs, that general definition does not foreclose

the EPA’s use of statutory context to infer that certain provisions use “air pollutant” to refer only

29

to those pollutants “that may sensibly be encompassed within [a] particular regulatory program.”

UARG, 573 U.S. at 319 (applying Massachusetts v. EPA, 549 U.S. 497, 528 (2007).

The definition of “air pollutant” varies according to the structure and design of each

regulatory program within the CAA. See UARG, 573 U.S. at 319, 321 (“Where the inclusion of

greenhouse gases would ‘radically transform those programs and render them unworkable as

written’ the term ‘air pollutant’ cannot encompass greenhouse gases.”). In Utility Air Regulatory

Group (UARG) v. EPA, the Court rejected the EPA’s interpretation of the term “air pollutant”

within the Act’s PSD and Title V programs as encompassing GHGs. Id. at 333. Under the agency’s

interpretation, annual required PSD permit applications and administrative costs would have

ballooned over 100 fold, causing decade-long permitting delays, while the Title V program would

have cost regulated industries $150 billion. Id. at 322. To avoid those catastrophic consequences,

the agency had issued a tailoring rule that dampened those programs’ statutory requirements. Id.

at 312-13. The Court, however, rejected the rule both as proof of faulty statutory construction and

an attempt to rewrite the CAA, holding that the term “air pollutant” does not include GHGs within

the PSD and Title V programs of the CAA. Id.

Taken together, Massachusetts v. EPA and UARG require that the EPA regulate GHGs in

some contexts but forbid regulation in others. See UARG, 573 U.S. at 319; Massachusetts, 549

U.S. at 528. The agency’s power and obligations depend on the structure of the various programs

within the CAA. See UARG, 573 U.S. at 319. Where regulating GHGs as air pollutants leads to

absurd results, the agency has no power to do so. Id. Accordingly, the EPA’s ability to list GHGs

as an air pollutant under § 108 depends on whether reading the term “air pollutant” as including

GHGs makes sense within the NAAQS program. Id.

2. The Term “Air Pollutant” Does not Include Greenhouse Gases in every Section of the Clean Air Act.

30

When read within the context of the entire NAAQS regulatory scheme, the term “air

pollutant,” as it appears in § 108, cannot encompass GHGs as such a construction would clash

with the structure of that scheme. See UARG, 573 U.S. at 320; King v. Burwell, 576 U.S. 473, 498

(2015) (“A fair reading of legislation demands a fair understanding of the legislative plan.”).

The NAAQS program is designed to improve air quality by requiring states to control the

ambient levels of certain pollutants within specific geographical areas. See Howard M. Crystal et.

al., Returning to Clean Air Act Fundamentals: A Renewed Call to Regulate Greenhouse Gases

Under the National Ambient Air Quality Standards (NAAQS) Program, 31 Geo. Envtl. L. Rev.

233, 259 (2019). It requires the EPA Administrator to publish a list of air pollutants that “(A) ...

may reasonably be anticipated to endanger public health or welfare; (B) … results from numerous

or diverse mobile or stationary sources; and (C) … for which air quality criteria had not been

issued before December 31, 1970 but for which he plans to issue air quality criteria under this

section.” 42 U.S.C. § 7408. Once an air pollutant is listed under § 108, the EPA must publish

proposed NAAQS, pursuant to § 109, within 12 months. 42 U.S.C. § 7408(a)(2); 42 U.S.C. §

7409(a)(2). Following the agency’s promulgation of NAAQS, § 110 requires that each state submit

to the EPA a plan to implement, maintain, and enforce both primary and secondary air quality

standards. 42 U.S.C. § 7410(a)(1). Among other requirements, these state plans must contain

provisions adequate to prevent emissions activity within the state from interfering with other

states’ NAAQS compliance. 42 U.S.C. § 7410(a)(2)(D). If a state fails to comply, emissions offsets

under § 173 must be at least two to one and the Administrator may impose a prohibition on the

provision of federal transportation monies.3 42 U.S.C. § 7503.

3 CAA § 173 requires owners or operators of new or modified major stationary sources to offset any increased emissions from stationary sources within a nonattainment area. 42 U.S.C. § 7503(c)

31

The EPA has only listed six air pollutants as criteria pollutants under § 109: ground-level

ozone, particulate matter, carbon monoxide, lead, sulfur dioxide, and nitrogen dioxide. 40 C.F.R.

§ 50. Unlike those pollutants, GHGs are not concentrated near their emission sources but are

instead widely dispersed throughout the atmosphere. Crystal, supra at 259. The distinction is

critical, as the NAAQS program relies on measuring local pollution conditions and requiring states

to address levels that threaten the public health or welfare. See id. at 256-57.

Interpreting the term “air pollutant,” as it appears in § 108, to include GHGs would require

states to regulate emissions over which they have no control and then penalize states for the global

community’s failure to address climate change. The EPA cannot tailor the NAAQS program’s

requirements, so such an interpretation would trigger a chain of mandatory regulation clearly

designed for pollutants that remain concentrated near their emission sources. See 573 U.S. at 321.

Just as the consequences of interpreting “air pollutant” to include GHGs within the CAA’s PSD

and Title V programs precluded that interpretation in UARG, the NAAQS program’s structure

precludes the EPA from interpreting the § 108 term “air pollutant” in a way that would provide it

license to regulate GHGs under the NAAQS program. See 573 U.S. at 320.

3. Congress has not granted the EPA power to fundamentally alter the Economy of the United States.

The term “air pollutant,” as it appears in § 108, cannot encompass GHGs because climate

change is a monumental challenge that Congress would not have committed to the EPA implicitly.

See Brown & Williamson, 529 U.S. at 133, 159; Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,

468 (2001) (“Congress... does not alter the fundamental details of a regulatory scheme in vague

terms or ancillary provisions—it does not...hide elephants in mouseholes.”).

When an agency considers whether to interpret a statute it administers in a way that grants

that agency authority to issue regulations with vast economic and political significance, it can only

32

do so with clear congressional authority. See Brown & Williamson, 529 U.S. at 159; Am. Trucking,

531 U.S. at 468. In FDA v. Brown & Williamson Tobacco Corp. the Court held that the Food and

Drug Administration (“FDA”) lacked authority under the Food, Drug, and Cosmetic Act

(“FDCA”), 21 U.S.C. § 301 et seq., to regulate tobacco products as customarily advertised. 529

U.S. at 161. While its authority to regulate both “drugs” and “devices” could be read to cover

tobacco as a “drug” and cigarettes as “drug delivery devices,” the Court determined that Congress

could not have intended to authorize the FDA to regulate tobacco products under FDCA because,

even as it repeatedly legislated on tobacco issues and acknowledged their dangers, it had refused

to ban those products. Id. at 133, 137, 143, 144-45. The Court interpreted any ambiguity around

the words “drugs” and “devices” in light of Congress’s repeated failure to act, reasoning that

“Congress could not have intended to delegate a decision of such economic and political

significance to an agency in so cryptic a fashion.” Id. at 160. Even as it distinguished Brown and

Williamson with regards to the definition of “air pollutant” under § 202, the Court reaffirmed its

logic for § 109. Massachusetts, 549 U.S. at 531. It reasoned in Massachusetts that the “EPA has

not identified any congressional action that conflicts in any way with the regulation of greenhouse

gases from new motor vehicles,” logic that cannot be applied to regulating GHGs under the

NAAQS program Id. at 531.

Listing GHGs under the NAAQS program would both vastly expand the EPA’s authority,

as previously discussed, and mandate regulatory action that Congress has repeatedly declined to

authorize. Since Massachusetts, Congress has considered numerous bills to address climate change

but has refused to adopt any of them. See American Clean Energy And Security Act of 2009, H.R.

2454, 111th Cong. (2009); American Clean Energy Leadership Act of 2009, S. 1462, 111th Cong.

(2009); Clean Energy Jobs and American Power Act, S. 1733, 111th Cong. (2009); Carbon Limits

33

and Energy for America's Renewal (“CLEAR”) Act, S. 2877, 111th Cong. (2009); Practical

Energy and Climate Plan Act of 2010, S.3464, 111th Cong. (2010). Of the bills it considered, the

only to pass either chamber was the American Clean Energy And Security Act of 2009. H.R. 2454,

111th Cong. (2009). Among its provisions, the bill established a cap-and-trade system for GHG

emissions and set goals for reducing such emissions from covered sources by, among other things,

amending the CAA. Andrew Dunmire et al., The American Clean Energy and Security Act of 2009

(H.R. 2454), 1 Wash. & Lee J. Energy, Climate & Env't 203, 206 (2010). Following passage in the

House, the bill failed in the Senate. Id. at 209.

Just as Congress’s refusal to ban tobacco products indicated that it had not delegated

authority to the FDA under the FDCA in Brown & Williamson, Congress’ refusal to pass climate

change legislation indicates that it has not delegated authority to the EPA to regulate GHGs. See

Brown & Williamson, 529 U.S. at 133.

B. If the Term “Air Pollutant,” as it Appears in §108, does Encompass Greenhouse Gases, the EPA has Discretion to Determine that § 108 is not the Appropriate Tool with which to Regulate that Pollutant.

If the term “air pollutant” as it appears in § 108, does encompass GHGs, the EPA may still

determine that the NAAQS regulatory program is not the appropriate tool with which to control

emissions, even after issuing an endangerment finding under § 202. See Massachusetts, 549 U.S.

at 531; UARG, 573 U.S. at 319. The agency has authority to exclude GHGs from the NAAQS

program so long as it “ground[s] its reasons... in the statute.” UARG, 573 U.S. at 319.

While no courts have directly addressed the question of whether the EPA has a non-

discretionary duty to regulate GHGs under the NAAQS program, the Supreme Court dismissed

the idea when it reasoned that the inclusion of GHGs in the § 202 definition of “air pollutants”

would lead to no absurd results. See Massassachusetts, 549 U.S. at 531. At most, it explained, the

interpretation would require the EPA to regulate new motor vehicle emissions. See id. at 531;

34

UARG, 573 U.S. at 318-20. The Court of Appeals for the Second Circuit and the District Court for

the District of Columbia have discussed §108’s duty to list as non discretionary, but neither

addressed GHGs. Train, 545 F.2d at 325; Zook v. McCarthy, 52 F. Supp. 3d 69, 74 (D.D.C. 2014),

aff'd sub nom. Zook v. EPA, 611 Fed. Appx. 725 (D.C. Cir. 2015) (unpublished). In NRDC v. Train,

the court held that the EPA had a non-discretionary duty to list lead as a criteria pollutant under §

108. 545 F.2d at 325. While it did read the plain language of the section as non-discretionary and

rejected emissions source control as a replacement for NAAQS regulations, it did so in light of

legislative history that showed Congress had specifically discussed its expectation that the EPA

would list lead. Id. at 324–25, 325–26, 327. The court in Zook v. McCarthy also discussed the

EPA’s listing duty under § 108 as non discretionary in its consideration of a petition to list animal

feed operations as criteria pollutants, however, it ultimately held that EPA had no duty to do so.

52 F. Supp. 3d at 74.

The legislative history of the CAA shows that § 108 treats those pollutants congress

anticipated would be listed soon after passage of the act differently from those listed later. See S.

REP. NO. 91-4358, at 409, 410 (1970); 42 U.S.C. § 7408. The Senate summary of the provisions

of the conference agreement on the 1970 amendments to the CAA discussed how, in addition to

the criteria for the five pollution agents already listed (at the time) and those, including lead, for

which a listing may have been imminent, the EPA would have discretion to list other pollutants

under § 109. See S. REP. NO. 91-4358, at 409, 410 (1970). The report explicitly stated that, “[i]f

the (Administrator) subsequently should find that there are other pollution agents for which the

ambient air quality standards procedure is appropriate, he could list those agents in the Federal

Register, and repeat the criteria process.” Id. The Senate report provides context and additional

meaning to the words “for which he plans to issue air quality criteria under this section,” implying

35

that, while the agency had a non-discretionary duty to list certain pollutants before December 31,

1970, that duty became discretionary afterward. Id.; see 42 U.S.C. § 7408.

Both the Court’s language in UARG and Massachusetts, as well as the Congressional intent

manifest in the Senate summary fit the CAA’s structure—§ 108 and § 202 belong to distinct

regulatory programs and different ramifications flow from an endangerment finding under each.

See 42 U.S.C. § 7408; 42 U.S.C. § 7521; UARG, 573 U.S. at 316-317. The CAA can reasonably

require the EPA to implement regulations designed to reduce auto emissions over an extended

period of time because doing so is technically possible. See Massassachusetts, 549 U.S. at 531.

Requiring the agency to list GHGs under the NAAQS program, however, would force it to mandate

impossible state action. The words “for which he plans to issue air quality criteria under this

section” draw a clear line between both sections—the EPA can determine that GHGs present a

threat to public welfare under § 202 without planning to list them as a criteria pollutant under §

108. See UARG, 573 U.S. at 319.

A reading of § 108 that requires the EPA to list GHGs as a criteria pollutant based on an

endangerment finding under § 202 would undermine Massachusetts, conflict with the Court’s

direct language in UARG, and ignore the legislative history of the CAA. See UARG, 573 U.S. at

319; Massachusetts, 49 U.S. at 531; S. REP. NO. 91-4358, at 409, 410 (1970).

CONCLUSION

Upon the reasons stated herein, the EPA respectfully requests that this Court uphold the

judgment of the court below with respect to questions two and three, but reverse with respect to

questions one, four, and five.