ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT COALITION FOR RESPONSIBLE REGULATION, ) et al., ) Petitioners, ) ) v. ) No. 09-1322 (and ) consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) Respondent. ) _____________________________________________ ) COALITION FOR RESPONSIBLE REGULATION, ) INC., et al., ) Petitioners, ) ) v. ) No. 10-1073 (and ) consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) Respondent. ) _____________________________________________ ) COALITION FOR RESPONSIBLE REGULATION, ) et al., ) Petitioners, ) ) v. ) No. 10-1092 (and ) consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) Respondent. ) _____________________________________________ )

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 1_____________________________________________

) SOUTHEASTERN LEGAL FOUNDATION, ) INC., et al., ) Petitioners, ) ) v. ) No. 10-1131 (and ) consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) Respondent. ) _____________________________________________ )

STATE AND ENVIRONMENTAL INTERVENORS’ JOINT RESPONSE TO MOTIONS TO STAY Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 2i TABLE OF CONTENTS

STATUTORY AND REGULATORY BACKGROUND................ ......................... 2 INTRODUCTION ......................................

................................................... ............ 2 THE STAY STANDARD .................................

................................................... ...... 5 I. MOVANTS HAVE NOT DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS ............................. ............................................. 7 A. Movants’ Attacks upon the Endangerment Finding A re Groundless ........... 7 1. The Scientific Basis of the Endangerment Findin g Is Sound .................... 7 2. EPA Applied the Correct Standard to Assess Enda ngerment. .................12 B. Movants’ Challenges to the Vehicle Rule Are Grou ndless ........................14 C. Movants’ Arguments Concerning the Timing Decisio n and Tailoring Rule Are Meritless .....................................

................................................... .......15 1. Plain Language, Court Precedent, and Long-Stand ing Agency Regulations Show That the Preconstruction Permitting Requiremen ts Apply to Major New or Modified Emitters of Each Pollutant Regulate d Under the Act. ....16 2. Administrative Necessity Justifies EPA’s Decisi on to Phase in Greenhouse Gas Regulation. ...................................

................................................... .....20 II. MOVANTS HAVE FAILED TO SHOW IRREPARABLE HARM .. ..........24 A. Movants Have Not Demonstrated States Will Suffer Irreparable Harm ....24 B. Movants’ Claims of Irreparable Economic Harm to Private Firms or the Economy at Large Are Speculative and Unsubstantiate d ...........................32 III. A STAY WOULD SUBSTANTIALLY INJURE THE STATES A ND THE PUBLIC AND IS CONTRARY TO THE INTERESTS OF BUSINESS ES PREPARING FOR IMPLEMENTATION ...................... ...............................38 A. A Stay Would Harm the States and the Public by A llowing Large and Prolonged Increases in Injurious Air Pollution .... .......................................39 B. A Stay Would Adversely Affect Businesses That Ar e Preparing for Implementation and That Depend on a Stable, Predict able Regulatory Roadmap ...........................................

................................................... .......46 CONCLUSION ........................................

................................................... .............49

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 3ii TABLE OF AUTHORITIES Cases *Ala. Power Co. v. Costle , 636 F.2d 323 (D.C. Cir. 1979) .... 1, 4, 15, 17, 18, 21, 22 Alaska Dep’t of Envtl. Conservation v. EPA , 540 U.S. 461 (2004) ........................35 Am. Chemistry Council v. Dep’t of Transp. , 468 F.3d 810 (D.C. Cir. 2006) ............ 3 Ambach v. Bell , 686 F.2d 974 (D.C. Cir. 1982).................... .................................6, 7 City of Portland v. EPA , 507 F.3d 706 (D.C. Cir. 2007) ................... ........................ 4 City of Waukesha v. EPA , 320 F.3d 228 (D.C. Cir. 2003) ................... ..................... 8 Cuomo v. U.S. Nuclear Reg. Comm’n , 772 F.2d 972 (D.C. Cir. 1985)...... 5, 6, 7, 28 Davis v. PBGC , 571 F.3d 1288 (D.C. Cir. 2009) .................. .................................... 7 *Ethyl Corp. v. EPA , 541 F.2d 1 (D.C. Cir. 1976) ..................... .............................12 Fed. Trade Comm’n v. Tarriff , 584 F.3d 1088 (D.C. Cir. 2009) .................. ...........19 Harrison v. PPG Indus., Inc ., 446 U.S. 578 (1980) ............................ ....................17 In re Navy Chaplaincy , 534 F.3d 756 (D.C. Cir. 2008) ................... ......................... 3 Indus. Union Dep’t v. Am. Petroleum Inst. , 448 U.S. 607 (1980) ...........................13 Logan v. United States , 552 U.S. 23 (2007) .............................. ..............................23 Majorica, S.A. v. R.H. Macy & Co. , 762 F.2d 7 (2d Cir. 1985) ....................... .......28 *Massachusetts v. EPA , 549 U.S. 497 (2007) ............................. . 1, 4, 12, 14, 16, 39 Mova Pharm. Corp. v. Shalala , 140 F.3d 1060 (D.C. Cir. 1998) .................. .........23 Nat’l Family Planning & Reprod. Health Ass’n v. Gonzales , 468 F.3d 826 (D.C. Cir. 2006) ................... ........................................27 Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ. , 366 F.3d 930 (D.C. Cir. 2004) ... 3 New York v. EPA , 413 F.3d 3 (D.C. Cir. 2005). .................... ..................................17 New York v. EPA , 443 F.3d 880 (D.C. Cir. 2006) ................... ................................16 *Nken v. Holder , 129 S. Ct. 1749 (2009) .......................... ....................................5, 7 NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975)...................... .................................22 Sierra Club v. EPA , 536 F.3d 673 (D.C. Cir. 2008) ................... .............................16 South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) ........24 Taylor v. Resolution Trust Corp. , 56 F.3d 1497 (D.C. Cir. 1995) ................... ......... 3 TVA v. Hill , 437 U.S. 153 (1973) ............................. ..............................................2, 4 United States v. Oakland Cannabis Buyers’ Coop ., 532 U.S. 483, (2001) ............... 2 Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921 (D.C. Cir. 1958) ..... 5, 7, 28, 39 *Whitman v. Am. Trucking Ass’ns , 531 U.S. 457 (2001) ............................. .......4, 23 Wilderness Soc’y v. Norton , 434 F.3d 584 (D.C. Cir. 2006) ................... .................. 3

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Winter v. NRDC, 129 S. Ct. 365 (2008) ............................. ....................................... 6 Wis. Gas Co. v. FERC , 758 F.2d 669 (D.C. Cir. 1985) ................... ............. 6, 28, 32 Federal Register 43 Fed. Reg. 26,388 (June 19, 1978) ...............

................................................... ....... 4 45 Fed. Reg. 52,676 (Aug. 7, 1980).................

................................................... .4, 18 74 Fed. Reg. 18,886 (Aug. 24, 2009)................

................................................... ....13 74 Fed. Reg. 66,496 (Dec. 15, 2009) (Endangerment Finding) ....................... ....................................... 1, 11, 13, 14, 40 75 Fed. Reg. 17,004 (Apr. 2, 2010) (PSD Reconsidera tion) ..................................... 1 75 Fed. Reg. 25,324 (May 7, 2010) (Vehicle Rule) .. ............................. 1, 14, 41, 45 75 Fed. Reg. 31,514 (June 3, 2010) (Tailoring Rule) ................. 1, 19, 22, 25, 28, 45 75 Fed. Reg. 49,556 (Aug. 13, 2010)................

................................................... ....11 75 Fed. Reg. 53,883 (Sept. 2, 2010) (proposed FIP R ule) ............................... 25, 29 75 Fed. Reg. 53,892 (Sept. 2, 2010) (proposed SIP C all) .......................................25 75 Fed. Reg. 62,739, 62,741 (Oct. 13, 2010) (Notice of Intent to Conduct Joint EPA and DOT Rulemaking) ...........................

................................................... ...45 Federal Statutes 15 U.S.C. § 2931(b) ...............................

................................................... ................. 8 15 U.S.C. § 2934 ..................................

................................................... ...............8, 9 42 U.S.C. § 7407 ..................................

................................................... .................17 42 U.S.C. § 7412(b)(6).............................

................................................... .............16 42 U.S.C. § 7470(1) ...............................

................................................... ...............19 *42 U.S.C. § 7475(a) ..............................

................................................... ..............16 *42 U.S.C. § 7475(a)(4) ...........................

................................................... .........2, 16 42 U.S.C. § 7479(1) ...............................

................................................... ...............16 *42 U.S.C. § 7479(3) ..............................

................................................... ... 2, 15, 20 42 U.S.C. § 7501(1) ...............................

................................................... ...............17 42 U.S.C. § 7503(a)(1)(A) .........................

................................................... ...........17 *42 U.S.C. § 7521(a) ..............................

................................................... ................ 3 *42 U.S.C. § 7521(a)(1) ...........................

................................................... .............14 42 U.S.C. § 7602(h) ...............................

................................................... ...............19 42 U.S.C. § 7607(b) ...............................

................................................... ................. 4 42 U.S.C. § 7607(d)(3).............................

................................................... ............... 8

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Legislative Materials H.R. Rep. No. 95-294 (1977) .......................

................................................... .........15 S. Exec. Rep. No. 102-55, 102d Cong., 2d Sess. (199 2) ........................................... 9 S. Rep. No. 95-127 (1977) .........................

................................................... ...........42

* Authorities chiefly relied upon are marked with an asterisk.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6v GLOSSARY

PARTIES

Movants : The Petitioners that filed the Motions to Stay, i ncluding the National

Association of Manufacturers and several other Peti tioners (“NAM Mot.”); the Coalition for Responsible Regulation, Inc. and its co-Petitioners along with Petitioners from four other Petitions (“CRR Mo t.”); and the State of Texas, which filed one motion to stay solely the Ta iloring Rule (“Tex. Tailoring Mot.”) and another to stay three other EP A actions (“Tex. Mot.”).

Intervenors : States and Environmental organizations have inter vened to support EPA as to one or more of the agency actions under r eview. Arizona, Connecticut, and Minnesota are intervenors in the E ndangerment cases. Delaware, Vermont, Washington, and New York City a re intervenors in the Endangerment and Vehicle Rule cases. New Hampshire is an intervenor in the Endangerment and Tailoring Rule cases. North C arolina has intervened in the Tailoring Rule case. California, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, the Pe nnsylvania Department of Environmental Protection, and Rhode I sland are intervenors in the Endangerment, Vehicle Rule, and Tailoring Ru le cases. Intervenors joining this response also include the nonprofit pu blic interest environmental organizations Center for Biological Diversity; the Conservation Law Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 7vi

Foundation; the Environmental Defense Fund; Georgia ForestWatch; the Indiana Wildlife Federation; the Michigan Environme ntal Council; the Ohio Environmental Council; the National Wildlife Federa tion; the Natural Resources Council of Maine; the Natural Resources D efense Council, the Sierra Club, Wetlands Watch and Wild Virginia. Respondent: Intervenors also refer herein to EPA’s Response to Motions to Stay (“EPA Resp.”).

THE CHALLENGED EPA RULES AND ACTIONS Endangerment Finding : “Endangerment and Cause or Contribute Findings fo r Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Rule,” 74 Fed. Reg. 66,496 (Dec. 15, 2009)

Vehicle Rule : “Light-Duty Vehicle Greenhouse Gas Emission Stand ards and Corporate Average Fuel Economy Standards; Final Rul e,” 75 Fed. Reg. 25,324 (May 7, 2010) Timing Decision : “Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permi tting Programs,” 75 Fed. Reg. 17,004 (Apr. 2, 2010) Tailoring Rule : “Prevention of Significant Deterioration and Titl e V Greenhouse Gas Tailoring Rule,” 75 Fed. Reg. 31,514 (June 3, 2 010) Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 8vii

RELATED PROPOSED RULES

FIP Rule : “Action to Ensure Authority to Issue Permits unde r the Prevention of Significant Deterioration Program to Sources of Gre enhouse Gas Emissions: Federal Implementation Plan,” 75 Fed. Reg. 53,883 ( Sept. 2, 2010)

SIP Call : “Action to Ensure Authority to Issue Permits unde r the Prevention of Significant Deterioration Program to Sources of Gre enhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call,” 75 Fed. Reg. 53,892 (Sept. 2, 2010)

TERMS

Act : Clean Air Act, 42 U.S.C. §§ 7401-7671q

BACT : Best Available Control Technology

CAA : Clean Air Act, 42 U.S.C. §§ 7401-7671q

CAFE : Corporate Average Fuel Economy

CO2e: Carbon dioxide equivalent

EPCA : Energy Policy and Conservation Act, 49 U.S.C. § 32902

FIP : Federal Implementation Plan

GHG : Greenhouse gas

GWP : Global Warming Potential

IAC : Climate Change Assessments: Review of the Proces ses and

Procedures of the IPCC (InterAcademy Council, 2010) Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 9viii

IPCC : United Nations Intergovernmental Panel on Climat e Change NAAQS : National Ambient Air Quality Standards

NEPA: National Environmental Policy Act, 42 U.S.C. § 4321

NHTSA : National Highway Traffic Safety Administration

Part C: 42 U.S.C. §§ 7470 – 7492

Part D: 42 U.S.C. §§ 7501 – 7515

PSD : Prevention of Significant Deterioration, 42 U.S .C. §§ 7470-7492

RTC : Response to Comments

RTP : Response to Petitions to Reconsider the Endanger ment and Cause or

Contribute Findings for Greenhouse Gases under Sect ion 202(a) of the Clean Air Act

SIP : State Implementation Plan SMAQMD: Sacramento Metropolitan Air Quality Management Dist rict SCAQMD: South Coast Air Quality Management District TCEQ: Texas Commission on Environmental Quality

TITLE V : 42 U.S.C. §§ 7661-7661f

TSD : Endangerment and Cause or Contribute Findings fo r Greenhouse

Gases Under Section 202(a) of the Clean Air Act: Te chnical Support Document (December 7, 2009)

TPY : Tons per year

USGCRP : United States Global Change Research Program

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STATE AND ENVIRONMENTAL INTERVENORS’ JOINT RESPONSE TO MOTIONS TO STAY State and Environmental Intervenors in support of R espondents respectfully submit this joint response in oppositi on to the stay motions filed by petitioners Coalition for Responsible Regulation, et al. , the State of Texas, and National Association of Manufacturers, et al . CRR and Texas ask this Court to stay four separate EPA decisions concerning the app lication of the Clean Air Act to greenhouse gases: (1) the Endangerment Finding, 74 Fed. Reg. 66,496 (Dec. 15, 2009); (2) the Vehicle Rule, 75 Fed. Reg. 25,32 4 (May 7, 2010); (3) the Timing Decision, 75 Fed. Reg. 17,004 (Apr. 2, 2010) , and (4) the Tailoring Rule, 75 Fed. Reg. 31,514 (June 3, 2010). NAM asks the C ourt to stay the latter three decisions as to stationary sources but does not see k a stay of the Vehicle Rule “as applied to cars” or the Endangerment Finding. NAM Mot. at 12. The stay motions should be denied in all respects. Despite hundreds of pages of briefing, thousands of pages of exhibits, scattershot assertions of illegality, and extravagant claims of harm, the sta y motions are, in the end,

insubstantial. Movants’ central claims on the meri ts are foreclosed by the Clean Air Act’s text and by judicial precedent, including Massachusetts v. EPA , 549 U.S. 497 (2007), and Alabama Power Co. v. Costle , 636 F.2d 323 (D.C. Cir. 1979); their allegations of irreparable harm are vague, of ten unconnected to the actual Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 112

decisions under review, and unsubstantiated; and Mo vants simply ignore significant harms that a stay would cause other par ties and the public interest.

STATUTORY AND REGULATORY BACKGROUND The background is set forth at pages 6-19 of EPA’s Response.

INTRODUCTION Movants are not regulated by, and do not suffer any direct injury from, the Endangerment Finding or the Vehicle Rule. The Timi ng Decision and the Tailoring Rule serve only to reduce burdens on regu lated entities and permitting authorities. Movants’ real quarrel is not with the four agency actions, but with the Clean Air Act itself, which obligates EPA to issue an endangerment determination based on science, and to issue motor vehicle standa rds once an endangerment determination is made, and which expressly extends preconstruction permitting requirements to sources of “each pollutant subject to regulation” under the Act, 42 U.S.C. §§ 7475(a)(4), 7479(3). Absent a showing of a probable constitutional violation (and irreparable harm), a court cannot en join a federal statute. Cf

. United States v. Oakland Cannabis Buyers’ Coop ., 532 U.S. 483, 497-98 (2001); TVA v.

Hill , 437 U.S. 153, 194-95 (1973). 1

1 Because the agency actions Movants seek to stay e ither do not affect them or actually benefit them, and because the harms they a llege to stationary sources flow from operation of statutory provisions that cannot be enjoined here, there is

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Movants ask for the extraordinary remedy of a stay based upon legal contentions that are flatly contrary to the Clean A ir Act’s text. First, overlooking

Massachusetts , Movants contend that Section 202(a), 42 U.S.C. § 7521(a), allowed EPA to decline to find endangerment, or to decline to set vehicle emission standards after having found endangerment, based on concerns about costs for stationary sources of permitting programs that appl y when a pollutant is subject to regulation under the Act. But the carefully wrough t criteria in Section 202(a) command the endangerment decision to be made on sci entific grounds alone and

restrict the consideration of costs to those relati ng to vehicle manufacturing. Motor & Equip. Mfrs. Ass’n v. EPA , 627 F.2d 1095, 1118 (D.C. Cir. 1979). Congress’s decisions concerning whether, how, when, and where in the administrative process to consider regulatory compliance costs must be res pected. See , e.g ., Whitman v.

genuine doubt whether Movants can demonstrate the i njury, causation, and redressability required for Article III standing – which is their burden as to “each claim” for relief, Wilderness Soc’y v. Norton , 434 F.3d 584, 591 (D.C. Cir. 2006). See , e.g. , Am. Chemistry Council v. Dep’t of Transp. , 468 F.3d 810, 815, 820 (D.C. Cir. 2006) (industry petitioners had failed to show injury from agency’s failure “to regulate their industry more pervasively”); Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ. , 366 F.3d 930, 939-40 (D.C. Cir. 2004) (redressabi lity lacking where “[e]ven if appellants prevailed on the merits in th eir challenge” to regulations, the underlying statute and previously promulgated regul ations “would still be in place”). While recognizing that standing is a sepa rate issue (and normally a prior one), cf. In re Navy Chaplaincy , 534 F.3d 756,762-63 (D.C. Cir. 2008); id. at 766 n.2 (Rogers, J., dissenting), this Response address es the stay factors – which overlap Article III to some extent, see , e.g ., Taylor v. Resolution Trust Corp. , 56 F.3d 1497, 1508 (D.C. Cir. 1995) – and shows that t he Movants have not demonstrated injury that can be redressed by a stay

.

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Am. Trucking Ass’ns , 531 U.S. 457, 465-66 (2001); Union Elec. Co. v. EPA , 427 U.S. 246, 258-69 (1976); TVA , 437 U.S. at 172-73; City of Portland v. EPA , 507 F.3d 706, 712 (D.C. Cir. 2007); see also Massachusetts, 549 U.S. at 533 (EPA may not introduce “policy judgments . . . [that] have n othing to do with whether greenhouse gas emissions contribute to climate chan ge”). Second, Movants assert that even after vehicle emis sions of greenhouse gases become regulated under Section 202(a), statio nary sources of those pollutants are exempt from the Title I, Part C perm itting program. But the Act expressly extends this permitting program to each n ew or modified major source located in any clean air area, and expressly requir es each such source to install modern pollution controls for “each air pollutant s ubject to regulation” under the Act. This has been EPA’s settled understanding of the statutory language for more than 30 years. 2 Legal arguments that are contrary to statutory la nguage are not likely to succeed. While this alone is reason enou gh for denying their motions, Movants also fail to show irreparable harm from EPA ’s actions (or how a stay

2 EPA first explained in 1980 that this interpretati on is compelled by the Act’s unambiguous language and by Alabama Power , 636 F.2d at 361 n.90, 405-07 . See 45 Fed. Reg. 52,676, 52,710-12 (Aug. 7, 1980); see also 43 Fed. Reg. 26,388, 26,397 (June 19, 1978). Movant NAM and others have recently attempted to seek judicial review of EPA regulations adopted in 1978, 1980, and 2002 – an effort EPA has moved to dismiss as time-barred by Section 307(b) of the Act, 42 U.S.C. § 7607(b). See , e.g ., Am. Chemistry Council v. EPA , No. 10-1167 (D.C. Cir. filed July 6, 2010).

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would remedy the harms they allege), and they disre gard the serious harms a stay would cause to intervenor states and the public int erest.

THE STAY STANDARD

A stay is an “extraordinary remedy,” Cuomo v. U.S. Nuclear Reg. Comm’n , 772 F.2d 972, 978 (D.C. Cir. 1985), amounting to “a n ‘intrusion into the ordinary processes of administration and judicial review.’” Nken v. Holder , 129 S. Ct. 1749, 1757 (2009) (quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)). Thus, a stay “is not a matt er of right, even if irreparable injury might otherwise result” to the proponent. Nken , 129 S. Ct. at 1757. In considering whether to grant a stay, a court wil l examine four factors: “(1) whether the stay applicant has made a strong s howing that he is likely to succeed on the merits; (2) whether the applicant wi ll be irreparably injured absent a stay; (3) whether issuance of the stay will substan tially injure the other parties interested in the proceeding; and (4) where the pub lic interest lies.” Nken , 129 S. Ct. at 1761 (citation and internal quotations omitt ed). The first factor requires Movants to make a “strong” showing of likely merits success. Id. A “mere ‘possibility’ of relief” is insufficient to justify a stay regardless of Movants’ showings with respect to the remaining factors. Id. (citation omitted). As to the second factor, Movants’ alleged irreparab le harm must be “both certain and great; it must be actual and not theore tical.” Wis. Gas Co. v. FERC ,

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758 F.2d 669, 674 (D.C. Cir. 1985). The claimed in jury must be “of such imminence that there is a clear and present need fo r equitable relief to prevent irreparable harm.” Id. (citation and internal quotations omitted). Movants claiming irreparable harm must demonstrate that “th e alleged harm will directly

result from the action which the movant seeks to en join” and must substantiate any claim that irreparable injury is likely to occur by “provid[ing] proof that the harm has occurred in the past and is likely to occur aga in, or proof indicating that the

harm is certain to occur in the near future.” Id. at 674; see also Winter v. NRDC, 129 S. Ct. 365, 375 (2008). “Bare allegations of w hat is likely to occur are of no

value since the court must decide whether the harm will in fact occur.” Wis. Gas

Co. , 758 F.2d at 674. Even where Movants meet the likelihood of success p rong and show some irreparable injury, a stay must nonetheless be deni ed where Movants have “failed to demonstrate that the balance of equities or the public interest strongly favors the granting of a stay.” Cuomo , 772 F.2d at 978. For example, irreparable harm d oes not warrant a stay where “its prevention will visit similar harm on other interested parties.” Ambach v. Bell , 686 F.2d 974, 979 (D.C. Cir. 1982). In litigatio n involving “the administration of regulatory statute s designed to promote the public interest, [the public interest factor] necessarily becomes crucial. The interests of private litigants must give way to the realization of public purposes.” Va.

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Petroleum Jobbers Ass’n , 259 F.2d at 925. Applying the public interest pr ong requires respecting the choices of “Congress, the e lected representatives of the entire nation,” as “decreed” by statute, Cuomo , 772 F.2d at 978, as well as “the decision of the [Administrator] as reflecting the b est interests of the public in h[er] expert judgment,” Ambach , 686 F.2d at 987. Movants must make strong, independent showings on all four of the factors – e specially with respect to the first two factors – to justify issuance of a stay. See Nken , 129 S. Ct. at 1761; see also

Davis v. PBGC , 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring).

I. MOVANTS HAVE NOT DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS

A. Movants’ Attacks upon the Endangerment Finding Are Groundless

1. The Scientific Basis of the Endangerment Finding Is Sound

Movants attack EPA’s scientific determinations on two fronts: that the work

of one of the scientific bodies on which EPA relied , the IPCC, is so suspect that it taints EPA’s conclusions, Tex. Mot. at 14-18, CRR M ot. at 26-29; and that EPA ignored other possible causes of global warming, CR R Mot. at 38-42. EPA considered and rejected both lines of attack. Neit her has merit, let alone overcomes the “extreme degree of deference” EPA rec eives on such technical

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judgments. See City of Waukesha v. EPA , 320 F.3d 228, 247 (D.C. Cir. 2003) (citations omitted). Notably, Movants do not challenge the credibility o f the U.S. Global Change Research Program (“USGCRP”) and National Research C ouncil (“NRC”), on which EPA also relies. Congress created the USGCRP to direct a “comprehensive and integrated United States research program which will assist the Nation and the world to understand, assess, predict, and respond t o human-induced and natural processes of global change.” 15 U.S.C. § 2931(b). The NRC, in turn, coordinates the work of the National Academy of Sciences, the N ational Academy of Engineering, and the Institute of Medicine. See RTP, Vol. 3 at 23; 15 U.S.C. § 2934 (NRC reports should help direct “policy deci sions relating to climate change”); 42 U.S.C. § 7607(d)(3) (EPA Clean Air Act rulemakings must discuss and respond to “any pertinent findings . . . by the National Academy of Sciences”).

The conclusions of either of these unchallenged , independent bodies would suffice to support EPA. See MacCracken Dec. (Ex. 32) ¶¶ 13-23 (all three bodie s produce “highly credible scientific assessment reports”). The IPCC’s international preeminence is widely acc epted. For example, the Senate acknowledges the IPCC’s work is “viewed thro ughout most of the international scientific and global diplomatic comm unity as the definitive statement on the state-of-the-art knowledge about g lobal climate change.” S. Exec.

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Rep. No. 102-55, 102d Cong., 2d Sess. at 3, 9 (1992 ). Congress recognizes the need to “coordinat[e] . . . [U.S.] global change re search activities . . . with such activities of other nations and international organ izations.” 15 U.S.C. § 2934. Even so, EPA carefully considered each of Movants’ allegations regarding the credibility of the IPCC’s work, and properly re jected them as being meritless. See, e.g. , RTP, Vol. 3 at 7 (Movants “routinely misunderstan d or mischaracterize the scientific issues they are raising, resorted to hyperbole [and] broadly impugned the ethics and scientific integrity of climate scie ntists in general . . . with no basis or support,” and “inordinate[ly] rel[ied] on blogs . . . and literature that is neither peer-reviewed nor accurately summarized”). In addi tion, EPA noted that all independent reviews have upheld the credibility of the IPCC’s work. See RTC, Vol. 1 at 9-15 (extensively describing the IPCC’s p eer review process); see also RTP, Vol. 2 at 6 (discussing reports upholding IPCC results); MacCracken Dec. (Ex. 32) ¶ 34 (same). Movants also seek to impugn the work of the IPCC b y misciting the extrarecord InterAcademy Council (“IAC”) Report, which, in fact, reconfirmed the value of the IPCC’s work while recommending specifi c structural reforms to further strengthen the organization. EPA Resp. Ex. 5 (“IAC Report”) 51 (“[T]he IPCC assessment process has been successful overall and has served society well”); MacCracken Dec. (Ex. 32) ¶ 18 (“[T]he IAC d id not call the IPCC’s core

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scientific conclusions, or their basis, into questi on.”). In relying on the IAC to

deride the IPCC as “unaccountable volunteer scientists,” Tex. Mot. at 15, Texas ignores the IAC’s statement that the group of volun teer scientists and government representatives working together on behalf of the I PCC “ are the major strength of the organization .” IAC Report 1 (emphasis added). In addition, Texas’s claim that the IAC found that the IPCC’s sea-level rise projections rested on a “weak evidentiary basis,” T ex. Mot. at 17, is misleading. That phrase is actually drawn from the IAC’s narrow critique of a specific IPCC estimate of the economic costs of rising seas. The IAC found that the IPCC should have noted that this narrow finding was based on on ly a few studies, IAC Report 33, but did not describe it as an error, much less question the broader link between climate change and sea level rise. See MacCracken Dec. (Ex. 32) ¶ 36. Indeed, if there is any problem with the IPCC’s sea-level rise projections, it is that they are too conservative. As EPA explained, “[w]ith regard to sea level rise projections, several very recent [USGCRP] assessment studies sug gest that, if anything, future sea level rise is likely to be near or above the hi gh end of the IPCC projections.” RTC, Vol. 4 at 61; see also MacCracken Dec. (Ex. 32) ¶ 38 (EPA’s sea level ris e conclusions are “quite cautious[]”). CRR advances a second line of attack, asserting th at EPA ignored that some “unknown” quality of the sun and clouds may ac tually be causing global

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warming. CRR Mot. at 38-42. In fact, EPA consider ed and rejected this allegation as being “inconsistent with the vast majority of th e scientific literature.” 74 Fed. Reg. at 66,518; see also id. at 66,517-19; 75 Fed. Reg. 49,556, 49,563-69 (Aug. 13, 2010); RTC, Vols. 3, 4; RTP, Vol. 1. EPA explained that the well-respected climate models, and data on which it relies, take t hese influences into account, and show that the massive increase in greenhouse gases is the primary driver of climate change. See, e.g. , RTC, Vol. 3 at 19-25; RTC, Vol. 4 at 10-30; MacCr acken Dec. (Ex. 32) ¶¶ 26-28 (concluding that EPA accurately i dentified the distinctive “fingerprint” of greenhouse gases). According to E PA, natural factors, like clouds – which actually reflect heat back into space – and the sun would on their own “likely have produced cooling, not warming.” RTC, Vol. 3 at 21; see also RTC, Vol. 4 at 10; MacCracken Dec. (Ex. 32) ¶¶ 26-28. 3 The well-documented increase in the concentration of carbon dioxide by 38 percen t from pre-industrial levels, which “exceeds by far [its] natural range over the last 800,000 years,” provides further support for EPA’s conclusion, and for rejec ting CRR’s red herring. See

TSD at 17.

3 EPA also noted that CRR’s suggestion that global w arming has stopped in the last decade, CRR Mot. at 39, is incorrect. See RTC, Vol. 3 at 3; MacCracken Dec. (Ex. 32) ¶ 29.

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2. EPA Applied the Correct Standard to Assess Endanger ment Not only do CRR and Texas misread the law, they al so misread the record.

See EPA Resp. at 20-29. Specifically, Movants’ content ion that EPA was required to “define” or quantify a threshold for endangermen t, CRR Mot. at 30; Tex. Mot. at 12, lacks any statutory or case law support. 4 See EPA Resp. at 23-27. Moreover, their demand for a quantitative threshold – i.e. , a level below which endangerment

would not

occur – overlooks the compelling agency record dem onstrating that adverse climate impacts have already occurred, and are continuing to occur

. 5 In any event, EPA did

define endangerment, referencing the extensive discussion of that concept by the Supreme Court in Massachusetts , by this Court in

4 See Cement Kiln Recycling Coal. v. EPA , 493 F.3d 207, 223 (D.C. Cir. 2007) (rejecting petitioner’s argument that “EPA should h ave defined what is protective of human health or the environment numerically, in terms of the threshold risk level that will trigger” specified requirements und er the Resource Conservation and Recovery Act; there was “nothing in the statuto ry language that compels such a numerical definition”).

5 See, e.g ., 75 Fed. Reg. 66,517-18 (“Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level”; “The scientific evidence is com pelling that elevated concentrations of heat-trapping greenhouse gases ar e the root cause of recently observed climate change”; “The attribution of obser ved climate change to anthropogenic activities is based on multiple lines of evidence”; “Observations show that climate change is currently affecting U.S . physical and biological systems in significant ways”).

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Ethyl Corp. v. EPA , 541 F.2d 1 (D.C. Cir. 1976), and by the drafters of the 1977 amendments that gave section 7521(a)(1)’s endangerm ent language its current wording. See Massachusetts , 549 U.S. at 506 n.7 (Congress amended 42 U.S.C. § 7521(a) “to give its approval to” Ethyl ). EPA drew at length from these sources and others, distilling decisional principles that o ffered ample guidance for the agency’s exercise of its judgment. 74 Fed. Reg. at 66,505-09; 74 Fed. Reg. 18,886 18,890-93 (Aug. 24, 2009). It applied these princi ples meticulously to the record, weighing actual and projected impacts of greenhouse gas emissions, and both the adverse and beneficial impacts of those emissions, to conclude that the endangerment threshold was met. 74 Fed. Reg. at 65 ,523-36, 65,537-45; see also MacCracken Dec. (Ex. 32) ¶ 30 (this conclusion is “ very soundly supported and consistent with the findings of the national and in ternational scientific communities”). EPA’s careful and detailed discussi on belies claims that it reached these conclusions “arbitrarily” or “without meaning ful discussion, proof or quantification.” CRR Mot. at 34. 6

6 CRR’s reliance (Mot. at 35) on Indus. Union Dep’t v. Am. Petroleum Inst. , 448 U.S. 607 (1980), discredit EPA’s work, is thus utte rly inapposite, as that case turned on inadequate record evidence, while the rec ord here is extraordinarily careful and complete. Compare id. at 626 (OSHA set its standard at 1 part per million ) with id. at 652 n.60 (OSHA “acknowledged that there was no empirical evidence to support the conclusion that there was a ny risk whatsoever of deaths due to exposures at 10 ppm ,” and relied instead on a “theory” that some death s were likely at lower levels) (emphases added).

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B. Movants’ Challenges to the Vehicle Rule Are Groundl ess EPA ably explains why Movants’ challenges to the V ehicle Rule are unlikely to succeed. See EPA Resp. at 40-47; see also id. at 26-28 (discussion of Ethyl Corp. ). The Vehicle Rule addresses greenhouse gas emiss ions from

American motor vehicles that exceed the entire nati onal emissions of almost every other country in the world (including Japan, German y, and Brazil), 74 Fed. Reg. at 66,539, and also does more to reduce those emission s than the concurrently announced fuel economy standards, see, e.g. , 75 Fed. Reg. at 25,345, 25,347; Walsh Dec. (Ex. 35) ¶¶ 4-8. Once EPA had determine d (properly) that motor vehicles “contribute” to the global warming endange rment EPA had also found to exist, the agency had a statutory obligation to pro mulgate a vehicle rule, without regard to stationary source costs that might be tri ggered under other parts of the

Clean Air Act. See 42 U.S.C. § 7521(a)(1) (“shall”); Massachusetts , 549 U.S. at 533; Motor & Equip. Mfrs. Ass’n , 627 F.2d at 1118 (noting that 42 U.S.C. § 7521(a)’s concern with “cost of compliance” is na rrow, encompassing only “the

economic costs of motor vehicle emission standards and accompanying enforcement procedures”). Indeed, requiring EPA to consider such stationary source impacts in the Vehicle Rule would be unworkable. In sharp contras t to § 7521(a) standards,

which are set in a national rulemaking by EPA, Prevention of Significant

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Deterioration (“PSD”) Best Available Control Techno logy (“BACT”) determinations are made “on a case-by-case basis,” mostly by numerous state permitting authorities. 42 U.S.C. § 7479(3). More over, such BACT

determinations evolve over time as new and modified sources of many different kinds apply for PSD permits. Indeed, the House Rep ort observes that “any attempt

to determine uniform national costs and benefits” o f the PSD program “obviously would be meaningless,” H.R. Rep. No. 95-294, at 177 (1977), and Congress sensibly declined to impose on EPA the quixotic tas k of estimating stationary source BACT costs in adopting regulations under 42 U.S.C. § 7521.

C. Movants’ Arguments Concerning the Timing Decision a nd Tailoring Rule Are Meritless Movants seek to stay the two EPA actions pertainin g to stationary sources of greenhouse gases – the Timing Decision and the Tail oring Rule – even though those actions actually benefit them. Movants canno t demonstrate any likelihood of success, because their contentions conflict with th e plain language of the Clean Air Act, with this Court’s decision in Alabama Power , 636 F.2d at 323, and with EPA’s long-standing interpretations embodied in reg ulations that are long past time for challenge.

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1. Plain Language, Court Precedent, and Long-Standing Agency Regulations Show That the Preconstruction Permittin g Requirements Apply to Major New or Modified Emitter s of Each Pollutant Regulated Under the Act EPA’s Response refutes Movants’ arguments that prec onstruction permitting applies only to sources of pollutants for which a N ational Ambient Air Quality Standard (“NAAQS”) has been promulgated. The plain text of the Act applies the Part C permitting program to sources emitting suffi cient amounts of “ any air pollutant,” 42 U.S.C. §§ 7475(a), 7479(1), EPA Resp . at 48-50, and requires implementation of control measures for “ each pollutant subject to regulation,” 42 U.S.C. § 7475(a)(4) (emphasis added). 7 The words “any” and “each” have expansive meanings. See Massachusetts , 549 U.S. at 528-29 (“repeated use of the word ‘any’ ” underscores “sweeping” definition of “air pollutant”); see also Sierra Club v. EPA , 536 F.3d 673, 677-78 (D.C. Cir. 2008) (“each” is an inclusive term encom passing every individual member of a group); New York v. EPA , 443 F.3d 880, 885 (D.C. Cir. 2006)

7 The only statutory exception to this scheme appear s in the 1990 amendments to Section 112, where Congress provided a specific per mitting provision for sources of hazardous air pollutants and exempted those poll utants from Section 165 permitting. See 42 U.S.C. § 7412(b)(6). These amendments confirm that Congress viewed the preconstruction permitting program as ap plicable to non-NAAQS pollutants. EPA Resp. at 55. EPA and states have further refined the provision “each pollutant subject to regulation” to require, with regard to major modifications, that there be a significant net emis sions increase of “each pollutant subject to regulation” for BACT to be triggered for such pollutant. See, e.g. , 40 CFR 52.21(j)(3).

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(Supreme Court “has read the word ‘any’ to signal e xpansive reach when construing the Clean Air Act”) (citing Harrison v. PPG Indus., Inc ., 446 U.S. 578, 588-89 (1980)). Requirements that apply to “any” and “each” polluta nt cannot be limited to only some pollutants. See New York v. EPA , 413 F.3d 3, 40-41 (D.C. Cir. 2005). Indeed, this Court confirmed more than 30 years ago that the Part C permitting program cannot be limited as Movants suggest. Ala. Power , 636 F.2d at 352 (describing “major emitting facility” definition as “jurisdictional” and noting, “the air pollutant [that] caused the source to be classi fied as a ‘major emitting facility’ may not be a pollutant for which NAAQS have been pr omulgated . . .”) (emphasis added). Accordingly, NAM’s contention that a sourc e cannot be a “major emitting facility” by virtue of emitting non-NAAQS pollutant s – including greenhouse gases – must fail. NAM’s arguments ignore the plain text and structur e of the Act. EPA Resp. at 51. Area designations under Section 107, 42 U.S .C. § 7407, are pollutantspecific. An area can be designated attainment or unclassifiable for some NAAQS pollutants and nonattainment for others, and a sour ce in such area can be subject to both Part C and Part D permitting. Part D requirem ents apply to the pollutant for

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which the area is designated nonattainment, 8 and Part C requirements apply to all of the source’s other regulated pollutants, includi ng non-NAAQS pollutants. Far from being unlawful, these criteria derive directly from the statute and have applied continuously since Alabama Power and EPA’s 1980 regulations. 9 Movant CRR argues that Section 166, 42 U.S.C. § 747 6, limits Part C’s applicability to criteria pollutants. CRR Mot. at 51. But Alabama Power rejected a substantially identical argument that “review und er Section 165 is qualified by

Section 166.” 636 F.2d at 405-06. The Court noted that “Section 165, in a litany of repetition, provides without qualification that each of its maj or substantive provisions shall be effective after 7 August 1977 w ith regard to each pollutant subject to regulation under the Act. . .

. ” Id. at 406 (emphasis added, footnotes omitted). Movants ask the Court to find that, beca use Section 166(a) requires EPA to issue PSD regulations when a new NAAQS is issued , EPA is prohibited from issuing such regulations for other pollutants. Thi s Court has rejected an analogous argument as “border[ing] on sophistry”:

8 See 42 U.S.C. § 7503(a)(1)(A) (requiring major new sour ces to obtain emission reductions assuring “reasonable further progress”); 42 U.S.C. § 7501(1) (defining “reasonable further progress” to include “reduction s in emissions of the relevant air pollutant

as are required by this part . . . for the purpose of ensuring attainment of the applicable national ambient air quality standar d ”) (emphasis added).

9 See 45 Fed. Reg. at 52,711. Even if there were any am biguity in the statutory language, Movants have failed to show that EPA’s re ading is an unreasonable interpretation. EPA Resp. at 48, 54-56.

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[W]e are unconvinced that the word “shall” expresse s not only a mandatory direction, but also a limiting principle . . . . W e know of no usage . . . that suggests that the use of “shall” mandating one act implies a corresponding “shall not” forbidding other acts not inconsistent with the mandated performance . . . .” Fed. Trade Comm’n v. Tarriff , 584 F.3d 1088, 1090-91 (D.C. Cir. 2009) (citation and internal quotation marks omitted). In the end, Movants fail to explain why, if Congres s intended to limit preconstruction review under Section 165 only to NA AQS pollutants or some other narrow set of pollutants, Congress did not say so. See 75 Fed. Reg. at 31,561 (“Congress certainly knew how to specifically descr ibe certain air pollutants”). Instead, Congress ensured that the program would ap ply broadly “to protect public health and welfare from any actual or potential adv erse effect,” 42 U.S.C. § 7470(1), including effects on “weather” and “clim ate,” Id. § 7602(h), by covering “any air pollutant.” Id. § 7479(1). For all these reasons, Movants have

not shown a likelihood of success on the claim that Part C preconstruction permitting cannot apply to major sources of greenho use gases once those pollutants become subject to regulation. Finally, Movants have no basis for their complaint that EPA failed to consider the overall costs and benefits of applying Part C’s permitting requirements to greenhouse gas sources in the Timin g Decision or the Tailoring Rule. No such analysis is required, because Part C is triggered by operation of the

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Clean Air Act. See EPA Resp. at 2-3. Instead, the Act expressly requ ires major emitting facilities to undergo a case-by-case BACT analysis that takes costs and other factors into account. Section 169(3) defines BACT to mean: an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, env ironmental, and economic impacts and other costs, determines is achievable for such facility. 42 U.S.C. § 7479(3) (emphasis added). Congress its elf made the decision that major sources must undergo this BACT review for “ea ch pollutant subject to regulation,” and provided for a case-by-case, sourc e-specific consideration of the

relevant costs and benefits. It is well settled th at agencies and courts must honor such congressional choices concerning how, when, an d where in the administrative process costs shall be considered. See supra p. 4 (citing cases). The statute simply leaves no room for the free-floating cost-benefit a nalysis that Movants desire. In any event, the agency could not refuse to apply the program on the basis of such an analysis given that preconstruction permitting is c ompelled by the Act’s plain text.

2. Administrative Necessity Justifies EPA’s Decision t o Phase in Greenhouse Gas Regulation Correctly understanding that Section 165 permitting applies to greenhouse gases once they are regulated pollutants, EPA ackno wledges that it must implement the statute. At no point does EPA deny t hat the plain language of Section 169(1) sets the thresholds for “major” stat us at 100 and 250 tons per year

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(depending on the source type). While EPA has “no general administrative power to create exemptions to statutory requirements,” th is Court has recognized “Exemptions Born of Administrative Necessity,” stat ing: “Certain limited grounds for the creation of exemptions are inherent in the administrative process, and their unavailability under a statutory scheme should not be presumed, save in the face of the most unambiguous demonstration of congressional intent to foreclose them.”

Ala. Power , 636 F.2d at 357. The Tailoring Rule addresses the fact that greenhou se gases are emitted from stationary sources in much higher volumes than poll utants previously subject to regulation. As a result, applying the 100 and 250 ton per year thresholds in Section 169(1) literally would sweep in many sources that h ave not previously been subject to permitting under Section 165, inundating permitt ing agencies with more applications than they can immediately process. In the preamble to the proposed Tailoring Rule, EPA acknowledged that agencies have a “high threshold to justify the use of the [administrative necessity] doctrine.” 74 Fed. Reg. 55,292, 55,316 (Oct. 27, 2 009). Permitting greenhouse gases emissions under the PSD program provides just such a rare case, where administrative necessity justifies provisionally de parting from the literal language of the statute to ensure that air permitting does n ot grind to a halt.

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Movants mischaracterize the Tailoring Rule as provi ding sources with permanent exemptions from the statutory requirement s instead of a deferral of regulation for a limited time. See NAM Mot. at 30 (arguing that the Tailoring Rule provides “broad exemption[s]” and “[c]ategorical ex emptions”). As this Court

observed in Alabama Power , the distinction is an important one because the agency’s burden of justification is “substantially less than that required when the agency seeks to exempt rather than defer regulation .” 636 F.2d at 360 n.86. The Tailoring Rule adopts an incremental approach to pr econstruction permitting that allows EPA and state agencies to move toward litera l application of the statute. Indeed, EPA commits in the Rule to complete additio nal rulemakings by July 1, 2012 and April 30, 2016, examining ways to process permits for additional sources more efficiently, and if possible, the agency will – as it must – require implementation at lower thresholds. 75 Fed. Reg. a t 31,524-25. The record in this case fully supports the agency’s conclusion that a phase-in approach is needed to fulfill Congress’s intent whi le not paralyzing air permitting programs. EPA relies to a large degree on evidence submitted by states – including state petitioners – to support its conclu sion that immediately applying the statutory thresholds to greenhouse gases would resu lt in permit paralysis. 75 Fed. Reg. at 31,535-36; see EPA Resp. at 16 n.7. EPA has demonstrated that wi thout provisional administrative relief, “practical consi derations make it impossible for

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the agency to carry out its mandate.” Ala. Power , 636 F.2d at 359; see also NRDC v. Train, 510 F.2d 692, 712-13 (D.C. Cir. 1975) (courts “cann ot responsibly mandate” enforcement of statutory deadline when the Administrator “demonstrates that additional time is necessary”).

As this Court admonished in Mova Pharm. Corp. v. Shalala , EPA has no “license to rewrite the statute. When the agency c oncludes that a literal reading of a statute would thwart the purposes of Congress, it may deviate no further from the statute than is needed to protect congressional int ent.” 140 F.3d 1060, 1068 (D.C. Cir. 1998). Movants try to bootstrap EPA’s acknowl edgment of administrative difficulties into an argument that it is “absurd” t o apply the preconstruction permitting program to greenhouse gases at all, yet EPA’s phased-in approach does far less violence to the intent of Congress than Mo vants’ interpretation would. The administrative necessity doctrine dictates that EPA must move expeditiously toward compliance with congressional intent. In contrast, Movants would have this Court read “any air pollutant” and “each air pollutant subject to regulation” out of the statute. This approach is s imilar to the one that the Court rejected in Mova , 140 F.3d at 1069 (“FDA has embarked upon an adventu rous transplant operation in response to blemishes in th e statute that could have been alleviated with more modest corrective surgery.”). See also Logan v. United

States , 552 U.S. 23, 33 (2007) (rejecting statutory inter pretation that “would

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correct one potential anomaly while creating others ”); Whitman , 531 U.S. at 486 (“The EPA may not construe the statute in a way tha t completely nullifies textually applicable provisions meant to limit its discretion .”). Cf. South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 896-98 (D.C. Cir. 2006) (upholding EP A’s regulatory translation of Congress’s classification ranges and deadlines in the Act’s nonattainment provisions to implement revised eight -hour ozone NAAQS). This Court should recognize EPA’s authority to phase in greenhouse gas regulation and reject Movants’ invitation to eviscerate key provis ions of the Act.

II. MOVANTS HAVE FAILED TO SHOW IRREPARABLE HARM

A. Movants Have Not Demonstrated States Will Suffer Ir reparable Harm Movants speculate that on January 2, 2011, many sta tes will be legally unprepared to implement the Section 165 permit prog ram for greenhouse gas emission sources, leading to a de facto “construction moratorium” in some states and a flood of permit applications from small sourc es in others. 10 NAM Mot. at 48-50; Tex. Tailoring Mot. at 15-16; CRR Mot. at 62 -63. None of this will happen. With the exception of T exas, all other states are taking action on their own and/or in cooperation wi th EPA to ensure that: (1)

10 On the question of irreparable harm, Movants’ focu s, and ours, is on preconstruction permits under Section 165. Title V does not require permits prior to construction.

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every source that needs a Section 165 preconstructi on permit under the Tailoring Rule will be able to get it from either state or fe deral authorities, and (2) every

source that does not need a preconstruction permit under the Tailoring R ule will be able to proceed without one. See EPA Resp. Ex. 13 (“McCarthy Dec.”) ¶¶ 4-5, 55, 98. According to a detailed October 28, 2010 analy sis by the National Association of Clean Air Agencies (“NACAA”) (the association of the nation’s state and local air pollution control agencies), “every state but o ne is poised to ensure that sources can obtain preconstruction permits [for greenhouse gases] under the Clean Air Act . . . by January 2, 2011 or very shortly thereafter .” McCarthy Dec. attach. 3 (“NACAA Report”); see also Declaration of David J. Shaw (“N.Y. Dec.”) (Ex. 15 ) ¶ 8 & Ex. B (Sept. 15, 2010 NACAA Report). Further, EPA has initiated a series of rulemaking a ctions that will assure that no source needing a Section 165 permit under the Ta iloring Rule will be unable to get it as a result of delay by a state in changing its rules, and that smaller sources will not be forced to seek permits. 75 Fed. Reg. 5 3,883 (Sept. 2, 2010) (proposed FIP Rule); 75 Fed. Reg. 53,892 (Sept. 2, 2010) (pro posed SIP Call); 75 Fed. Reg. at 31,525 (describing limitation of prior SIP appro vals to levels above the Tailoring Rule thresholds). Pursuant to these actions, Secti on 165 permitting will be implemented in time to avoid any potential permitti ng delays, in all states except

Texas , either: (1) by the state under its own regulatio ns; (2) by the state under

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federal regulations; or (3) by EPA under federal re gulations. See NACAA Report; McCarthy Dec. attach. 1. The attached declarations from state air pollution officials from across the country further show – co ntrary to Petitioners’ unfounded speculation – that states are ready, willing, and a ble to implement PSD permitting for greenhouse gas emissions come January 2, 2011, or shortly thereafter. Declaration of Kathrine Pittard (“SMAQMD Pittard De c.”) (Ex. 2) ¶¶ 7-9; Declaration of Mohsen Nazemi (“SCAQMD Dec.”) (Ex. 3 ) ¶ 3; Affidavit of Anne Gobin (“Conn. Aff.”) (Ex. 4) ¶¶ 4-10; Affidavit of Ali Mirzakhalili (“Del. Aff.”) (Ex. 5) ¶¶ 3, 5-8; Declaration of Douglas P. Scott (“Ill. Dec.”) (Ex. 7), ¶ 4; Affidavit of Catharine Fitzsimmons (“Iowa Aff.”) (E x. 6) ¶¶ 3-4; Declaration of James P. Brooks (“Me. Dec.”) (Ex. 10) ¶¶ 5-7; Decla ration of George S. Aburn (“Md. Dec.”) (Ex. 9) ¶¶ 3-4; Declaration of Nancy L . Seidman (“Mass. Dec.”) (Ex. 8) ¶¶ 3-5; Declaration of Robert R. Scott (“N.H. De c.”) (Ex. 12) ¶¶ 3-5; Declaration of William O’Sullivan (“N.J. Dec.”) (Ex . 13) ¶ 4; Affidavit of Jim Norton (“N.M. Aff.”) (Ex. 14) ¶¶ 1-3; N.Y. Dec. (Ex . 15) ¶ 7; Declaration of Dr. Donald R. Van Der Vaart (“N.C. Dec.”) (Ex. 11) ¶ 5; Declaration of Andrew Ginsburg (“Or. Dec.”) (Ex. 16) ¶¶ 7-9; Declaration of Douglas L. McVay (“R.I. Dec.”) (Ex. 17) ¶¶ 3-5; Declaration of Richard Vale ntinetti (“Vt. Dec.”) (Ex. 18) ¶¶ 3-4; Declaration of Stuart A. Clark (“Wash. Dec.”) (Ex. 19) ¶ 3. 11

11 Movants strain to create a false impression that n umerous states are at risk of a

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Texas is the sole state that is both refusing to ch ange its own regulations and resisting EPA’s backstop procedure to assure that s ources can get a federallyissued permit. See Tex. Tailoring Mot. attach. 2 (“Texas Letter to Li sa Jackson”) 1 (“On behalf of the State of Texas, we write to info rm you that Texas has neither the authority nor the intention of interpreting, ig noring, or amending its laws in order to compel the permitting of greenhouse gas em issions.”). But Texas is unwilling , not unable, to meet the Clean Air Act’s requireme nts for greenhouse gases. Texas has authority under current state law to make the necessary regulatory changes. See Tex. Health & Safety Code § 382.0205 (TCEQ may by rule “control air contaminants as necessary to prot ect against adverse effects related to . . . climatic changes, including global warming”). Texas also has the option of letting EPA issue Section 165 permits for greenhouse gas emission sources, but is refusing that option as well. A pa rty cannot claim injury from selfinflicted wounds, or from delays to which the party itself contributed. See Nat’l Family Planning & Reprod. Health Ass’n v. Gonzales , 468 F.3d 826, 831 (D.C.

“construction moratorium” for greenhouse gas source s – i.e. , will be unable to issue needed permits. For instance, NAM points to Illinois and New Jersey as examples of states allegedly unable to implement pe rmitting in conformity with the Tailoring Rule by January 2, 2011. NAM Mot. at 48 n.30. However, both states anticipate being fully ready by that date. See Ill. Dec. (Ex. 7) ¶ 4 & Ex. A (explaining that no state law changes are needed); N.J. Dec. (Ex. 13) ¶ 4 (noting that the state does “not need to undertake a regula tory or legislative process to implement the Tailoring Rule”) & Ex. A.

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Cir. 2006) (“[S]elf-inflicted harm doesn’t satisfy the basic requirements for standing. Such harm does not amount to an ‘injury’ cognizable under Article III . .

. As the association has chosen to remain in the lurch, it cannot demonstrate an injury sufficient to confer standing.”); see also Majorica, S.A. v. R.H. Macy & Co. , 762 F.2d 7, 8 (2d Cir. 1985) (“Lack of diligence, s tanding alone, may . . . preclude the granting of preliminary injunctive relief, beca use it goes primarily to the issue of irreparable harm.”); Cuomo , 772 F.2d at 977 (“Such self-imposed costs are not properly the subject of inquiry on a motion for sta y.”); Va. Petroleum Jobbers

Ass’n , 259 F.3d at 926-27 (“[h]ypothetical, self-inflict ed losses” do not justify a stay). Further, the harms that Texas alleges it will suffe r are highly speculative and unsubstantiated. Texas claims that the possibility of a “construction moratorium” that could affect as many as 167 sources in 2011 12 is causing “uncertainty and harm to the State’s business environment,” Tex. Tai loring Mot. at 16, even though EPA is preparing to carry on necessary permitting i f the state defaults. A party moving for a stay is required to demonstrate that t he injury claimed is “both certain

12 Texas’s estimates of both the number of projects that could be affected and the administrative burden associated with the permittin g of such projects fail to account for the fact that no new permits are requir ed at all under the EPA rules for the first half of 2011 on the basis of greenhouse g as emissions alone, resulting in gross inflation of the alleged harm estimated durin g the stay period. See 75 Fed. Reg. at 31,540.

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and great” and “actual . . . not theoretical.” Wis. Gas Co. , 758 F.2d at 674. According to Texas’s own director of air permitting , EPA’s actions will avoid any alleged moratorium, so long as EPA devotes the nece ssary staff to permitting. Tex. Tailoring Mot. attach. 6 (“Hagle Dec.”) 14. E PA has committed unequivocally to do so. See 75 Fed. Reg. at 53,890 (proposing a FIP to fulfill EPA’s statutory role as “back-up permitting authori ty” to “assure businesses, to the maximum extent possible and as promptly as possible , that a permitting authority is available to process PSD permit applications”). Texas claims it is being “robbed” of its right to m anage its own clean air program because EPA has not allowed Texas enough ti me to make SIP revisions and is forcing the state to surrender to a FIP. Te x. Tailoring Mot. at 30-32. Again, Texas’s alleged harm is of its own making. Other s tates expect to be able to amend their SIPs in a timely manner. See McCarthy Dec. ¶¶ 55, 98 & attachs. 1-3; N.Y. Dec. (Ex. 15) Ex. B; see also Del. Aff. (Ex. 5) ¶¶ 6-7; Iowa Aff. (Ex. 6) ¶ 4; M e. Dec. (Ex. 10) ¶ 7; Md. Dec. (Ex. 9) ¶ 4; N.H. Dec. (Ex. 12) ¶ 5; N.M. Aff. (Ex. 14) ¶ 2; N.C. Dec. (Ex. 11) ¶ 5; R.I. Dec. (Ex. 17) ¶ 5 ; Vt. Dec. (Ex. 18) ¶ 4; Wash. Dec. (Ex. 19) ¶ 3. Further, for the small number o f states like Texas that will not be ready in time, EPA has made clear that it will s tep in only for as long as it takes the states to develop their own program, and encour ages those states to retain as much discretion as possible over their air permitti ng programs by agreeing to

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implement the federal requirements as EPA’s delegat ees. See 75 Fed. Reg. at 53,890. States with currently-delegated permitting programs, such as Illinois, have been cooperating with EPA in this manner for years and maintain substantial discretion in processing permit applications and ot herwise managing their clean air

resources. See Ill. Dec. (Ex. 7) ¶¶ 5-6. Texas also complains about the administrative expen ses of carrying out a permit program. Tex. Tailoring Mot. at 18-19. How ever, as Texas has no intention of implementing the Tailoring Rule in the near term, it appears that EPA, not Texas, will bear any administrative expenses fo r administering a permit program under a FIP. See McCarthy Dec. ¶ 61 (stating that EPA “expects to h ave adequate resources” to implement permitting in stat es lacking delegation). Further, Texas concedes that the Clean Air Act requires the cost of permit programs to be covered by fees paid by regulated entities. Hagle Dec. 13. To the extent that Texas administers its own permit program in the fut ure, Texas has not shown that it will be unable to make any necessary regulatory amendments to begin to recover

these costs. No other state has submitted any evidence of irrepa rable harm from administrative expenses related to implementing gre enhouse gas permitting under the Tailoring Rule thresholds. To the contrary, ma ny states have determined that they will have adequate resources. See, e.g. , SCAQMD Dec. (Ex. 3) ¶¶ 3-7 (staff

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will be able to carry out the permit actions requir ed by the Tailoring Rule and has sufficient knowledge and expertise to specify green house gas BACT on a case-bycase basis, which is likely to focus largely on ene rgy efficiency); Declaration of Larry Greene (“SMAQMD Greene Dec.”) (Ex. 1) ¶¶ 5-8 (existing staff are adequate to, and have the ability to, implement the rule); Conn. Aff. (Ex. 4) ¶ 9 (state has adequate resources to process permits at Tailoring Rule thresholds under current and approved permitting staffing levels); D el. Aff. (Ex. 5) ¶ 8 (state has adequate resources to implement the Tailoring Rule) ; Me. Dec. (Ex. 10) ¶ 8 (state has adequate resources to process permits at Tailor ing Rule thresholds under current and approved permitting staffing levels); M d. Dec. (Ex. 9) ¶ 4 (state currently has adequate resources to implement permi tting under the Tailoring Rule); Mass. Dec. (Ex. 8) ¶ 5 (state will have suff icient resources to administer permitting programs upon approval of SIP); N.J. Dec . (Ex. 13) ¶¶ 5-6 (estimating, between Jan. 2 and July 2, 2011, no additional perm its and two pending applications that would require a GHG BACT evaluati on, “which is not expected to be a major workload,” and after July 2, 2011, se ven landfill facilities that will require Title V permits); N.M. Aff. (Ex. 14) ¶ 4 (s tate has adequate resources to implement the Tailoring Rule); N.C. Dec. (Ex. 11) ¶ 6 (state has the necessary resources to begin permitting of greenhouse gas sou rces under Tailoring Rule); Or. Dec. (Ex. 16) ¶ 10 (state has adequate resources to conduct rulemaking and

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implement permitting for greenhouse gases); Vt. Dec . (Ex. 18) ¶ 6 (state has adequate resources to process permits at Tailoring Rule thresholds); Wash. Dec. (Ex. 19) ¶ 4 (state has adequate resources to imple ment greenhouse gas permitting under the Tailoring Rule). 13

B. Movants’ Claims of Irreparable Economic Harm to Pri vate Firms or the Economy at Large Are Speculative and Unsubstant iated Movants claim various harms to private firms or the economy at large, but their submissions are “speculative, unsubstantiated and of a nature which clearly does not warrant the issuance of a stay.” Wis. Gas Co. , 758 F.2d at 672. Movants fail to “show that the alleged harm will directly result from the action which movant seeks to enjoin .” Id . at 674 (emphasis added). Although they bemoan th e alleged costs of “GHG regulation,” see, e.g ., CRR Mot. at 67 (citing Peelish Dec. ¶¶ 11-12), Movants and their Declarants utterly fai l to make the required showing

that the specific agency decisions at issue here will have any significant effect on their companies or industries – let alone an effect that is “certain and great” and “of

13 In fact, because the purpose of the Tailoring Rule is to relieve the potentially crippling administrative burdens that would result from immediate application of the statutory Clean Air Act thresholds, states have determined that the administrative burden would be much greater without the Tailoring Rule. See, e.g. , Del. Aff. (Ex. 5) ¶ 4; Ill. Dec. (Ex. 7) ¶ 8; Iowa Aff. (Ex. 6) ¶ 5; Me. Dec. (Ex. 10) ¶ 9; Md. Dec. (Ex. 9) ¶ 5; Mass. Dec. (Ex. 8) ¶ 7; N.M. Aff. (Ex. 14) ¶ 5; N.Y. Dec. (Ex. 15) ¶¶ 10-11; Or. Dec. (Ex. 16) ¶ 11; Vt. Dec. (Ex. 18) ¶ 7; Wash. Dec. (Ex. 19) ¶ 4.

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such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Wis. Gas Co. , 758 F.2d at 674 (citation omitted).

Broad claims about effects on entire industries are also insufficient to meet the “requirement that the movant substantiate that the claim of irreparable injury is ‘likely’ to occur.” Id. at 674 (citation omitted). Bare allegations that E PA’s actions will result in “project cancellations,” rai se energy prices, and harm “all sectors of the American economy,” NAM Mot. at 40, 4 3, are transparently speculative – as are the claims that private citize ns will “bring ruinous suits against any commercial, residential, or manufacturing GHG s ource they disfavor,” id. at 52. Likewise, CRR fails to show how collateral use s of the Endangerment Finding ( e.g. , references to it in NEPA litigation) will cause a ny of its members any harm during the period of a potential stay. See CRR Mot. at 13 n.12. Many of the Declarants fail to establish even that their projects will have to undergo preconstruction or Title V permitting for g reenhouse gases during the period of a potential stay. Indeed, many of the De clarants acknowledge that the firms they represent will not be seeking to construct facilities with emissions exceeding the Tailoring Rule’s thresholds during th e potential stay period, and so

will not be affected at all. See , e.g ., CRR Mot. at 67-68 (citing Ellis Dec. ¶ 15); Id

. at 67 (citing Peelish Dec. ¶ 9); Brick Dec. (Ex. 22 ) ¶¶ 14-20 (noting that harms claimed by Corn Refiners’ Association are without f oundation). Finally, some of Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 4334

the claims about harm are simply wrong. See Brick Dec. (Ex. 22) ¶¶ 15, 26 (noting that alleged harms to ethanol refiners are not supp orted by the facts about that industry). When Declarants do claim that a specific project wi ll suffer direct impact from EPA’s rules, those claims lack substantiation. For example, CRR Declarant Charles Kerr, CRR Mot. Ex. 21 (“Kerr Dec.”), states that Great Northern Project Development (“GNPD”) abandoned a potentially profit able conventional coal plant design in favor of a gasification design as a “direct result of the uncertainties surrounding regulation of greenhouse gases.” Kerr Dec. ¶ 6. Kerr fails to note that this design shift occurred long before any of the E PA greenhouse gas regulations he is challenging were even proposed. See Letter from Richard Southwick, Permitting & Envtl. Manager, South Heart Coal, to I llona Jeffcoat-Sacco, Exec. Sec’y, North Dakota Pub. Serv. Comm’n (Jan. 23, 200 8) (Ex. 36) (expressing intent to construct a coal gasification facility). Similarly, Kerr seeks to blame EPA’s actions for th e difficulties faced by a proposed power plant in North Dakota. But Kerr fai ls to mention other obstacles – from local zoning issues to concerns about the plan t’s impact on a nearby national park. 14 Kerr speculates that a future BACT emissions limi t might result in a

14 In addition to failing to mention when key event s occurred, Mr. Kerr also neglects to note that the project has faced serious other hurdles, including zoning issues and problems concerning adverse impacts of i ts conventional emissions on

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“potential” requirement to adopt carbon capture and sequestration. Kerr Dec. ¶ 16. Kerr’s speculation is premature and unsubstantiated given the fact that BACT would be assessed case-by-case taking into account costs and “local differences in raw materials or plant configurations, differences that might make a technology ‘unavailable’ in a particular area,” Alaska Dep’t of Envtl. Conservation v. EPA , 540 U.S. 461, 488 (2004). Contrary to his own spec ulation, GNPD recently asked that land in Stark County, North Dakota be rezoned, requesting a conditional use permit to construct an “electric power generating p lant.” Application for Industrial District Zoning and Conditional Use Permits South H eart Project (Ex. 39) 1. General allegations about decreasing demand for coa l or uncertainty in the

coal markets also miss the mark. See CRR Motion Ex s. 22, 24. For instance, CRR Declarant Michael Peelish “altogether ignores other compelling economic factors that have contributed to the trends he observes,” i ncluding (1) a sharp drop in natural gas prices, which leads firms to switch fro m coal to gas; (2) a reduction in electricity demand due in part to the recession tha t has reduced demand for coal;

Theodore Roosevelt National Park, which is only 15 miles away from the proposed project site. See Dakota Res. Council v. Stark County Bd. of County C omm’rs , Nos. 08C-282 (S.W. Jud. Dist. N.D. July 22, 2009) ( reversing zoning decision to rezone land from agricultural to industrial use, wh ich would have allowed operation of a coal mine) (Ex. 37); Dakota Res. Council v. Stark County Bd. of County Comm’rs , No. 10C-315 (S.W. Jud. Dist. N.D. filed May 6, 20 10) (Ex. 38). Mr. Kerr also fails to mention that the company has not yet submitted a preconstruction permit for the proposed coal gasifi cation facility.

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and (3) higher construction costs (which rose 76 pe rcent between 2005 and 2008) that have led to coal plant project cancellations. Keohane Dec. (Ex. 28) ¶ 36 (referring to CRR Ex. 22 ¶¶ 12, 36-37). These ongo ing trends cannot be ascribed to EPA’s regulations, which are not yet in effect. Movants claim that EPA’s actions will have sweeping macroeconomic effects, but provide no credible proof that the ove rall economy would suffer significant, let alone irreparable, economic harm d uring the stay they seek. Two of NAM’s declarants – Bezdek (NAM Mot. Ex. 13) and Tho rning (NAM Mot. Ex. 19) – based their harm projections on analyses of u nenacted economy-wide carbon cap-and-trade legislation

. According to Dr. Dallas Burtraw, an economist at Resources for the Future, analyses “regarding the e conomic impacts of a cap and trade program are irrelevant to assessing the impac ts of the more modest vehicle standards and preconstruction review requirements” at issue in this case. Burtraw Dec. (Ex. 23) ¶ 15. Burtraw notes that EPA’s vehicle standards will sav e car owners an average of $3,000 (over and above any hig her vehicle costs) over the life of the vehicles, through fuel savings. Id. ¶ 8. And, for stationary sources, “[b]ecause the emission limitation reflecting BACT will be determined in the future for each covered source on a case-by-case ba sis, taking costs into account, it is impossible to demonstrate now that the costs of those requirements will be

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excessive for the sources or burdensome – or even n oticeable – for the overall economy.” Id. ¶ 11. NAM’s assertions about purported effects on the cos t of capital and U.S. investment are dressed up as expert predictions, bu t in fact are groundless. See NAM Mot. at 43 (citing Thorning Dec. ¶ 22). Thorni ng’s analysis (the most heavily cited in NAM’s Motion) is rife with rudimen tary flaws. Keohane Dec. (Ex. 28) ¶¶ 23-29. For example, Thorning relies on ly on general sources about the relationship between capital and investment that ar e utterly unrelated to EPA’s

action. See id . ¶¶ 23-24 (noting that the report cited by Thornin g is on “general risk management and insurance, and makes no mention whatsoever of the EPA, GHG regulation, or even how regulatory uncertainty might affect capital investment”). Thorning’s claim that a “risk premiu m” of 30-40 percent would be “appropriate” is entirely unsupported, and thus her macroeconomic assertions derived from that claim are completely baseless. Id . ¶ 25 (referring to Thorning Dec. ¶ 22). While Movants repeatedly claim harm from “uncertain ty,” they fail to provide any concrete evidence. Nor can they assign responsibility for any such “uncertainty” to EPA’s rules. See id . ¶¶ 24, 39. First, corporate and governmental uncertainty over greenhouse gas regulation long pre dated the EPA actions at issue here. For example, coal companies have long recogn ized (in securities filings, and

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elsewhere) that future greenhouse gas regulation po ses economic risks for them, and markets have already incorporated those risks i nto coal prices and coal company valuations. 15 Second, EPA’s Timing Decision and Tailoring Rule actually reduce that uncertainty by providing structure, definite thresholds, and clear timelines for permitting obligations. See id . ¶ 39 (noting that a stay “would exacerbate such uncertainty”); see also Bradley Dec. (Ex. 21) ¶¶ 9-11; Miller Dec. (Ex. 33) ¶ 10; Arensmeyer Dec. (Ex. 20) ¶¶ 4-6; Kna pp Dec. (Ex. 29) ¶¶ 4-6. In any event, a stay, because only provisional, could not resolve any uncertainty of which Movants complain.

III. A STAY WOULD SUBSTANTIALLY INJURE THE STATES AND THE PUBLIC AND IS CONTRARY TO THE INTERESTS OF BUSINESSES PREPARING FOR IMPLEMENTATION

Staying any one of EPA’s separate actions at issue for even a short period

would create substantial harm for intervenor states and their citizens, for members of the intervenor environmental organizations, and for the public at large, by allowing many millions of tons of additional greenh ouse gases to be emitted that

15 See Corporate Library, et al ., Climate Risk Disclosure in SEC Filings 19-20 (Ceres and EDF 2009) (examining coal companies’ dis closures of regulatory and other risk associated with greenhouse gas regulatio n in 2008 filings and discussing risk factors); see also Securities and Exchange Commission Guidance Regard ing Disclosure Related to Climate Change, 75 Fed. Reg. 6,290, 6,290-91 (Feb. 8, 2010) (noting the variety of international, federal , regional, and state regulatory programs that may affect companies’ business).

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would persist in the atmosphere for decades and eve n hundreds of years after the time period of a potential stay. A stay is also ma nifestly contrary to the public

interests reflected in the Clean Air Act. When lit igation concerns “the administration of regulatory statutes designed to p romote the public interest,” the question of where the public interest lies is “cruc ial” and “[t]he interests of private litigants must give way to the realization of publi c purposes.” Va. Petroleum

Jobbers Ass’n , 259 F.2d at 925, 927. The injurious impacts on state sovereigns and to th e important public interest in the protective, carefully designed and stable im plementation of statutory requirements to reduce deleterious air pollution we igh heavily against a stay.

A. A Stay Would Harm the States and the Public by Allo wing Large and Prolonged Increases in Injurious Air Pollution As the Supreme Court recognized in Massachusetts v. EPA , a state has a “special position and interest” in “preserv[ing] it s sovereign territory” and “protecting its quasi-sovereign interests,” as well as its citizens, from the harms of greenhouse gas emissions. 549 U.S. at 518, 519-20. States are already being directly harmed by the inundation of coastal areas, due to sea level rise and more frequent storm surges. See id. at 521-23, 526 (“[T]he rise in sea levels associat ed with global warming has already harmed and will con tinue to harm Massachusetts.”); see also Md. Dec. (Ex. 9) ¶ 6 (“With more than 3,000 miles of

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coastline, Maryland is among those states that will be most impacted by the effects of climate change.”); Me. Dec. (Ex. 10) ¶ 3 (noting that Maine’s fifteen coastal state parks and associated infrastructure will be i mpacted by erosion and inundation); Mass. Dec. (Ex. 8) ¶ 8 (explaining tha t 75 percent of Massachusetts’ population is located in coastal areas); 74 Fed. Re g. at 66,533, 66,534-36 (“[S]ea level is rising along much of the U.S. coast, and t he rate of change will very likely increase in the future, exacerbating the impacts ofprogressive inundation, stormsurge flooding, and shoreline erosion.”). States w ill also have to grapple with severe heat and exacerbation of harmful ozone (smog ) levels, 16 more frequent severe weather events, reduced water supplies and s nowpack, decreased water quality, increased wildfires, and loss of biodivers ity. See Md. Dec. (Ex. 9) ¶¶ 6-7; Me. Dec. (Ex. 10) ¶ 3; Wash. Dec. (Ex. 19) ¶ 5; Or. Dec. (Ex. 16) ¶ 12; Conn. Aff. (Ex. 4) ¶ 11; R.I. Dec. (Ex. 17) ¶ 8; N.H. Dec. (Ex . 12) ¶ 6; Mass. Dec. (Ex. 8) ¶ 8; Croes Dec. (Ex. 26) ¶¶ 5-10; see also 74 Fed. Reg. at 66,524-25. A stay would cause lasting damage to these state in terests because it would allow the production of long-lived vehicles, and th e construction of long-lived

16 Some harms, in particular the health impacts of e levated temperatures and reduced air quality, disproportionately affect vuln erable populations, including those already in poor health, the elderly, infants, and young children. See 74 Fed. Reg. at 66,524-25, 66,526, 66,534; Croes Dec. (Ex. 26) ¶ 9. Thus, vulnerable populations would bear the brunt of many of the har ms that would be caused by such a stay.

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stationary sources, without greenhouse gas controls . These sources would then emit higher pollution levels throughout their lives – as much as 15 years or more for vehicles, and 60 years or more for stationary s ources such as power plants. Furthermore, the damage from these emissions would persist for well over a century, given the long atmospheric lifetime of gre enhouse gas pollutants, contributing to climate change for many years. Even a one-year stay would result in the release of many millions of tons of greenhouse gas emissions that would otherwise have been avoided under the rules. A stay of the Vehicle Rule (or the underlying Endan germent Finding) just for model year 2012 (which begins January 2, 2011) woul d allow vehicles built during that model year to emit an additional 35.8 million tons of carbon dioxide equivalent over their lifetimes, even with applicat ion of NHTSA’s fuel economy

standards. See 75 Fed. Reg. at 25,344, 25,347; Walsh Dec. (Ex. 35) ¶ 7. At the same time, Americans would lose $17.4 billion in mo netized benefits over those

vehicle lifetimes. See 75 Fed. Reg. at 25,345, 25,347; Walsh Dec. (Ex. 35 ) ¶ 7. Likewise, a one-year stay of the permit requirement s could result in the release of hundreds of millions of extra tons of gr eenhouse gas emissions by allowing the construction of dozens of new or modif ied major stationary sources that will operate for decades without any greenhous e gas controls. At least 21 major coal plants and oil refineries are positioned to receive draft or final Section

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165 permits during 2011 and together have the poten tial to emit greenhouse gases ranging from 30 million to 90 million tons of carbo n dioxide annually. See Krust Dec. (Ex. 30) ¶¶ 5-8. Achieving even a modest effi ciency improvement of five percent at a 1000 megawatt coal-fired plant could r educe its emissions by 460,000 tons of carbon dioxide per year, or a total of 27.6 million tons of carbon dioxide over the 60 year operational life of a plant. See Schoengold Dec. (Ex. 34) ¶ 10. These additional dangerous emissions would persist in the atmosphere for far longer than the stay itself – up to a hundred y ears or more. See Endangerment TSD at 16-19; Schoengold Dec. (Ex. 34) ¶ 4; Hansen Dec. (Ex. 27) ¶ 15; MacCracken Dec. (Ex. 32) ¶ 39. Each increment of e missions would have a cumulative effect on the composition of the atmosph ere and climate warming that would persist for generations. See Hansen Dec. (Ex. 27) ¶ 15; MacCracken Dec. (Ex. 32) ¶ 40; Schoengold Dec. (Ex. 34) ¶ 4. 17 Emissions allowed by a stay will

17 In addition to conflicting with the Clean Air Act’ s fundamental objective of protecting public health and welfare, a stay would also undercut the Act’s important objective of promoting advances in emissi on control technology. EPA’s greenhouse gas emissions standards for new motor ve hicles and case-by-case BACT determinations reflect the core technology-adv ancing policies of the Clean Air Act. See, e.g., S. Rep. No. 95-127, at 17-18 (1977) (Congress inte nded BACT, as “[p]ossibly the most important” of the 1977 Act’ s many technology-fostering measures, to spur “improvements in the technology o f pollution control.”). Such technological advances are crucial to addressing cl imate change in the long run, and to reducing the costs of doing so. Keohane Dec . (Ex. 28) ¶ 3. Regulatory requirements to limit air pollution have a central role in spurring advances in air pollution control technology. See Keohane Dec. (Ex. 28) ¶ 43. For example, the advent of requirements to limit sulfur dioxide emis sions was closely linked to the

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increase the risks of dangerous, abrupt climate cha nge. Growing scientific evidence shows that global warming is accelerating the rate of loss of the

Greenland and Antarctic ice sheets. See Endangerment TSD at 67-78; Hansen Dec. (Ex. 27) ¶¶ 21-22; MacCracken Dec. (Ex. 32) ¶ 45. This ice sheet instability indicates that the earth’s temperature is near a th reshold or tipping point that, once crossed, will trigger uncontrollable disintegration of the ice sheets, and

concomitant sea level rise of several meters starti ng during this century. See Hansen Dec. (Ex. 27) ¶¶ 18-23; MacCracken Dec. (Ex. 32) ¶ 45. Continuation of the current global emission trajectory will make cr ossing tipping points

unavoidable. See Hansen Dec. (Ex. 27) ¶¶ 23, 29, 33. Thus, each da y of delay in reducing greenhouse gases increases the risk of cro ssing a tipping point and the harms to the public. See Hansen Dec. (Ex. 27) ¶ 34; MacCracken Dec. (Ex. 32 ) ¶

44. Further, the discharge of such additional emissions during the stay will make

development of technologies to control such emissio ns. See Keohane Dec. (Ex. 28) ¶ 43 & Figure 3 (showing annual U.S. patent fil ings relevant to sulfur dioxide control systems before and after clean air legislat ion in the U.S. Congress); see also Walsh Dec. (Ex. 35) ¶¶ 9-10 (noting that motor vehi cle pollution control technologies developed and commercialized in the U. S. have been adopted worldwide); ICF, The Clean Air Act Amendments: Spurring Innovation and Growth While Cleaning the Air 2-3 (Oct. 27, 2005) (listing technological advance s for control of sulfur dioxide and nitrogen oxides f rom stationary sources and innovations in vehicle pollution control due to the 1990 Clean Air Act Amendments).

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mitigation of the above impacts more difficult and costly for states that are engaged in their own efforts to reduce climate chan ge impacts. Many of the state intervenors are mitigating climate impacts by takin g steps under their own control to reduce greenhouse gas emissions. For example, s tates are participating in regional greenhouse gas cap and trade programs, hav e adopted California’s passenger vehicle low emission and greenhouse gas s tandards, and have created state-specific programs and initiatives to reduce e missions. 18 Because EPA’s regulation of greenhouse gases signif icantly advances the goal of minimizing impacts, state intervenors stron gly support EPA’s efforts. See,

e.g., N.H. Dec. (Ex. 12) ¶ 6 (“Tailoring Rule is an impo rtant part of limiting [greenhouse gas] emissions in New Hampshire and the rest of the nation”); see also Md. Dec. (Ex. 9) ¶ 8; Wash. Dec. (Ex. 19) ¶ 8; Iow a Aff. (Ex. 6) ¶ 7; Conn. Aff. (Ex. 4) ¶ 12; R.I. Dec. (Ex. 17) ¶ 7; N.M. Aff . (Ex. 14) ¶ 6; Mass. Dec. (Ex. 8)

18 See Md. Dec. (Ex. 9) ¶ 8; Wash. Dec. (Ex. 19) ¶¶ 6-7; R.I. Dec. (Ex. 17) ¶ 8; N.M. Aff. (Ex. 14) ¶ 6; Mass. Dec. (Ex. 8) ¶ 9; N.Y . Dec. (Ex. 15) ¶ 12. Washington’s adoption of California “clean car” sta ndards, for instance, will reduce greenhouse gas emissions from motor vehicles in the state by 30% by 2016. Wash. Dec. (Ex. 19) ¶ 7. Similarly, Maryland has e nacted legislation to reduce statewide greenhouse gas emissions by 25% by the ye ar 2020 and to develop a plan to reduce such emissions by up to 95% by the y ear 2050. See Md. Dec. (Ex. 9) ¶ 8. See also Wash. Dec. (Ex. 19) ¶ 6 (noting that the Washingto n legislature has committed to reducing emissions to 1990 levels by 2020, and to 50% below 1990 levels by 2050). States like Massachusetts ha ve made implementation of these programs a priority, even though government r esources have been stretched by the current economic situation. See Mass. Dec. (Ex. 8) ¶ 9.

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¶ 10; Croes Dec. (Ex. 26) ¶ 18. A stay of the regu lations, in contrast, would allow emissions that would be prevented and would worsen the harms states face. As EPA explains, EPA Resp. at 45-46, a stay of the national Vehicle Rule would severely disrupt implementation and complianc e with one of the most important intergovernmental accords in the history of pollution control, coordinating automakers’ compliance with the state greenhouse gas vehicle

standards and the national Vehicle Rule. 75 Fed. R eg. at 25,327-28; see Cackette Dec. (Ex. 24) ¶¶ 8-11; see also Cal. Code Regs. tit. 13,§ 1961.1(a)(1)(A)(ii)2. Disrupting this coordinated compliance would place the continuing cooperative efforts of the federal government, California, and the auto manufacturers under great uncertainty. See 75 Fed. Reg. 62,739, 62,741 (Oct. 13, 2010) (notic e of intent to conduct joint EPA and DOT rulemaking on m odel year 2017- 2025 lightduty vehicle greenhouse gas emission and fuel econo my standards working closely with the California Air Resources Board); President ial Memorandum Regarding Fuel Efficiency Standards (May 21, 2010), www.white house.gov/the-pressoffice/presidential-memorandum-regarding-fuel-effic iency-standards (last visited Oct. 30, 2010). In addition, if the Tailoring Rule is stayed, state s will be saddled with the unmanageable administrative burdens the rule is des igned to avoid. See Md. Dec. (Ex. 9) ¶ 5; Me. Dec. (Ex. 10) ¶ 9; Wash. Dec. (Ex. 19) ¶ 4; Or. Dec. (Ex. 1f6) ¶

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11; Del. Aff. (Ex. 5) ¶ 4; N.M. Aff. (Ex. 14) ¶ 5; N.J. Dec. (Ex. 13) ¶¶ 5-6; Mass. Dec. (Ex. 8) ¶ 7; N.Y. Dec. (Ex. 15) ¶¶ 10-11; see also 75 Fed. Reg. at 31,540. In Iowa, for example, which has already adopted state regulations to implement the Tailoring Rule, about 10-20 facilities would need p ermits under the Tailoring Rule.

See Iowa Aff. (Ex. 6) ¶ 5. If the rule is stayed, how ever, the number of permits

climbs to 410. See id. The state intervenors generally have adequate resources to handle the permitting load expected under the Tailo ring Rule. See SCAQMD Dec. (Ex. 3) ¶¶ 4-6; SMAQMD Greene Dec. (Ex. 1) ¶ 7; Md. Dec. (Ex. 8) ¶ 4; Me. Dec. (Ex. 10) ¶ 8; Wash. Dec. (Ex. 19) ¶ 4; Or. Dec. (Ex . 16) ¶ 10; Conn. Aff. (Ex. 4) ¶ 9; Del. Aff. (Ex. 5) ¶ 8; N.C. Dec. (Ex. 11) ¶ 6; N .J. Dec. (Ex. 13) ¶¶ 5-6; N.M. Aff. (Ex. 14) ¶ 4; Vt. Dec. (Ex. 18) ¶ 6; Mass. Dec . (Ex. 8) ¶ 5. However, the “overwhelming administrative burden” that would ens ue without the rule “could . . . result in severe impairment or delay in the fun ctioning” of permitting programs in states like New York. N.Y. Dec. (Ex. 15) ¶ 10; see also Md. Dec. (Ex. 9) ¶ 5; Ill. Dec. (Ex. 7) ¶ 8.

B. A Stay Would Adversely Affect Businesses That Are P reparing for Implementation and That Depend on a Stable, Predict able Regulatory Roadmap A stay would be contrary to the interests of busine sses preparing to comply with EPA’s rules. By disrupting rules carefully de signed to provide a measured, workable implementation framework, a stay would cre ate uncertainty for

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companies with existing and proposed sources both a bove and below the Tailoring

Thresholds. See Bradley Dec. (Ex. 21) ¶¶ 1, 9-11 (Clean Energy Gro up) (“EPA has demonstrated a careful, measured approach, seek ing input from industry and other stakeholders, and limiting the initial scope of regulation through the Tailoring Rule.”); Miller Dec. (Ex. 33) ¶ 10 (Calpi ne Corporation); Knapp Dec. Ex. 29 ¶¶ 4, 6 (South Carolina Small Business Chamb er of Commerce); Collette Dec. (Ex. 25) ¶¶ 5, 8 (“A stay would create the sit uation where small businesses

would not know whether or not their sources would b e subject to PSD.”). A stay would create uncertainty for power companies – such as Calpine Corporation, Exelon Corporation, National Grid, New York Power Authority, NextEra Energy, PG&E Corporation, and Seattle City Light – that are preparing to meet BACT for greenhouse gases consistent with the EPA’s clear ground rules.

See Bradley Dec. (Ex. 21) ¶¶ 1, 9-11 (EPA’s rules “mak e clear which sources are required to comply with PSD for GHG emissions and w hich are not, and when the obligations of covered sources take effect.”). A s tay would, for example, intensify regulatory uncertainty for Calpine Corporation by d e-stabilizing the permit implementation framework and creating risks “that c ould negatively affect the financing of new generation projects that would red uce the overall GHG footprint of the electricity sector.” Miller Dec. (Ex. 33) ¶ 10. Calpine owns ninety-three power plants, some of which exceed the Tailoring Ru le thresholds. See Miller

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Dec. (Ex. 33) ¶¶ 4, 7, 8. At one such plant, Russe ll City Energy Center in Alameda County, California, Calpine has committed to carry out BACT for greenhouse

gases. See Miller Dec. (Ex. 33) ¶ 9. A stay would be contrar y to the interests of businesses that have been preparing for implementat ion of the rules, exacerbating rather than alleviating regulatory uncertainty. A stay would also adversely impact the interests of large and small businesses, investors, and entrepreneurs that benef it from the rules. See Lederer Dec. (Ex. 31) ¶ 5. The Small Business Majority opp oses a stay because it would “delay and disrupt efforts to achieve controls of g reenhouse gas emissions under the Clean Air Act” and could “delay investments in small businesses that would be important sources of innovation.” Arensmeyer Dec. (Ex. 20) ¶¶ 4-6; see also Collette Dec. (Ex. 25) ¶¶ 4-8 (Main Street Alliance ). A hiatus on implementation would also adversely affect small business interest s, such as the South Carolina Small Business Chamber of Commerce, that are pursui ng clean energy technologies as business growth opportunities. See Knapp Dec. (Ex. 29) ¶¶ 4-6. In sum, by disrupting a clearly delineated framewor k for implementation, a stay would “exacerbate rather than ameliorate uncer tainty,” creating a volatile regulatory environment that delays capital investme nt and prolongs “the period of ‘limbo’ before the regulations take effect.” Keoha ne Dec. (Ex. 28) ¶ 30.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 5849 CONCLUSION The motions for a stay should be denied in all resp ects.

Respectfully submitted, Dated: November 1, 2010 /s/ MORGAN A. COSTELLO M ORGAN A. C OSTELLO Assistant Attorney General Environmental Protection Bureau The Capitol Albany, NY 12224 (518) 402-2594

A NDREW M. C UOMO Attorney General of New York

M ICHAEL J. M YERS M ORGAN A. C OSTELLO Assistant Attorney General Environmental Protection Bureau The Capitol Albany, NY 12224 (518) 402-2594 Y UEH

- RU C HU I SAAC C HENG Assistant Attorneys General Environmental Protection Bureau 120 Broadway New York, NY 10271 (518) 416-8450 Attorneys for Intervenor State of New York E DMUND G. B ROWN J R

. Attorney General of California

K ATHLEEN A. K ENEALY Senior Assistant Attorney General S USAN D URBIN R AISSA L ERNER M ARC N. M ELNICK N ICHOLAS S TERN Deputy Attorneys General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 (510) 622-2270 Attorneys for Intervenor State of California Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 5950

M ARTHA C OAKLEY Attorney General of Massachusetts

W ILLIAM L. P ARDEE C AROL I ANCU T RACY T RIPLETT Assistant Attorneys General Environmental Protection Division One Ashburton Place, 18th Floor Boston, MA 02108 (617) 963-2428 Attorneys for Intervenor Commonwealth of Massachusetts

T ERRY G ODDARD Attorney General of Arizona

J OSEPH P. M IKITISH J AMES T. S KARDON Assistant Attorneys General 1275 W Washington Street Phoenix, AZ 85007 (602) 542-8535 Attorneys for Intervenor State of Arizona R ICHARD B LUMENTHAL Attorney General of Connecticut

K IMBERLY P. M ASSICOTTE M ATTHEW I. L EVINE S COTT N. K OSCHWITZ Assistant Attorneys General 55 Elm Street P.O. Box 120 Hartford, CT 06106 (860) 808-5250 Attorneys for Intervenor State of Connecticut

J OSEPH R. B IDEN , III Attorney General of Delaware

V ALERIE M. S ATTERFIELD Deputy Attorney General Delaware Department of Justice 102 West Water Street, 3rd Floor Dover, DE 19904 (302) 739-4636 Attorneys for Intervenor State of Delaware Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6051

L ISA M ADIGAN Attorney General of Illinois

M ATTHEW J. D UNN G ERALD T. K ARR Assistant Attorneys General 69 West Washington St., Suite 1800 Chicago, IL 60602 (312) 814-3369 Attorneys for Intervenor State of Illinois

T HOMAS J. M ILLER Attorney General of Iowa

D AVID R. S HERIDAN Assistant Attorney General Environmental Law Division Lucas State Office Building 321 E. 12th Street, Ground Flr. Des Moines, IA 50319 (515) 281-5351 Attorneys for Intervenor State of Iowa J ANET T. M ILLS Attorney General of Maine

G ERALD D. R EID Assistant Attorney General Chief, Natural Resources Division 6 State House Station Augusta, ME 04333-0006 (207) 626-8545 Attorneys for Intervenor State of Maine

D OUGLAS F. G ANSLER Attorney General of Maryland

R OBERTA R. J AMES Assistant Attorney General Maryland Department of the Environment 1800 Washington Blvd. Baltimore, MD 21230 (410) 537-3748 Attorneys for Intervenor State of Maryland Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6152

L ORI S WANSON Attorney General of Minnesota

S TEVEN M. G UNN Deputy Attorney General J OCELYN F. O LSON Assistant Attorney General 445 Minnesota Street, Suite 900 St. Paul, MN 55101 (651) 757-1244 Attorneys for Intervenor State of Minnesota

M ICHAEL A. D ELANEY Attorney General of New Hampshire

K. A LLEN B ROOKS Senior Assistant Attorney General 33 Capitol Street Concord, NH 03301 (603) 271-3679 Attorneys for Intervenor State of New Hampshire

G ARY K. K ING Attorney General of New Mexico

J UDITH A NN M OORE Assistant Attorney General 111 Lomas Blvd., NW Suite 300 Albuquerque, NM 87102 (505) 222-9024 Attorneys for Intervenor State of New Mexico R OY C OOPER Attorney General of North Carolina

J. A LLEN J ERNIGAN Special Deputy Attorney General M ARC B ERNSTEIN Special Deputy Attorney General North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602-0629 (919) 716-6600 Attorneys for Intervenor State of North Carolina

J OHN K ROGER Attorney General of Oregon

J EROME L IDZ Solicitor General D ENISE F JORDBECK Attorney-in-Charge, Civil / Administrative Appeals P AUL L OGAN Assistant Attorney General Appellate Division, Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 378-5648 Attorneys for Intervenor State of Oregon Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6253

P ATRICK C. L YNCH Attorney General of Rhode Island

G REGORY S. S CHULTZ Special Assistant Attorney General Rhode Island Department of Attorney General 150 South Main Street Providence, RI 02903 (401) 274-4400 Attorneys for Intervenor State of Rhode Island

W ILLIAM H. S ORRELL Attorney General of Vermont

T HEA J. S CHWARTZ State of Vermont Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-3186 Attorneys for Intervenor State of Vermont R OBERT M. M C K ENNA Attorney General of Washington

L ESLIE R. S EFFERN Assistant Attorney General Washington State Office of the Attorney General P.O. Box 40117 Olympia, WA 98504-0117 (360) 586-6770 Attorneys for Intervenor State of Washington

S USAN S HINKMAN Chief Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection

R OBERT A. R EILEY K RISTEN M. F URLAN Assistant Counsel PO Box 8464 Harrisburg, PA 17105 (717) 787-7060 Attorneys for Intervenor Commonwealth of Pennsylvania Department of Environmental Protection Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6354

M ICHAEL A. C ARDOZO Corporation Counsel of the City of New York

C HRISTOPHER K ING S USAN K ATH C ARRIE N OTEBOOM Assistant Corporation Counsel 100 Church Street New York, NY 10007 Attorneys for Intervenor City of New York

KEVIN PATRICK BUNDY VERA P. PARDEE Center for Biological Diversity 351 California Street Suite 600 San Francisco, CA 94104 (415) 436-9682 Attorneys for Intervenor Center for Biological Diversity ANN B. WEEKS JONATHAN F. LEWIS HELEN D. SILVER Clean Air Task Force 18 Tremont Street, Suite 530 Boston, MA 02108 (617) 624-0234 Attorneys for Conservation Law Foundation, Inc., Natural Resources Council of Maine, Indiana Wildlife Federation, Michigan Environmental Council, and The Ohio Environmental Council

VICKIE PATTON PAMELA CAMPOS Environmental Defense Fund 2334 N. Broadway Boulder, CO 80304 (303) 447-7216 SEAN H. DONAHUE 2000 L Street, NW Suite 808 Washington, DC 20036 (202) 277-7085 DAVID BARON Earthjustice 1625 Massachusetts Ave., NW, Suite 702 Washington, D.C. 20036 (202) 667-4500, Ext. 203 Attorneys for Intervenor Environmental Defense Fund Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6455

JOSEPH MENDELSON III National Wildlife Federation National Advocacy Center 901 E St. NW, Suite 400 Washington, DC 20004 202-797-6898 Attorney for National Wildlife Federation

COLIN C. O’BRIEN MELEAH GEERTSMA DAVID DONIGER Natural Resources Defense Council 1200 New York Avenue, NW S. 400 Washington, DC 20005 (202) 289-2403 Attorneys for Intervenor NRDC JOANNE SPALDING Sierra Club 85 Second Street, Second Floor San Francisco, CA 94105 (415) 977-5725 CRAIG SEGALL Sierra Club 408 C St., NE Washington, DC 20002 (202) 548-4598 Attorneys for Intervenor Sierra Club

MORGAN BUTLER FRANK W. RAMBO Southern Environmental Law Center 201 West Main Street, Suite 14 Charlottesville, Virginia 22902 (434) 977-4090 Attorneys for Georgia ForestWatch Wetlands Watch and Wild Virginia Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6556 CERTIFICATE OF SERVICE I hereby certify that the foregoing State and Envir onmental Intervenor Joint Response to Motions to Stay was electronically file d with the Clerk of the Court using the CM/ECF system, which will send notificati on of said filing to the attorneys of record in No. 09-1322 (and consolidate d cases), No. 10-1073 (and consolidated cases), No. 10-1092 (and consolidated cases), and No. 10-1131 (and consolidated cases), who are required to have regis tered with the Court’s CM/ECF system. I will also cause a copy of the foregoing document to be sent by first-class mail postage prepaid, to any non-CM/ECF users who h ave appeared in these cases.

Date: November 1, 2010 /s/ Violet Lehrer Violet Lehrer

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