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

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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 Are Groundless ........... 7 

1. The Scientific Basis of the Endangerment Finding Is Sound .................... 7 

2. EPA Applied the Correct Standard to Assess Endangerment. .................12 

B. Movants’ Challenges to the Vehicle Rule Are Groundless ........................14 

C. Movants’ Arguments Concerning the Timing Decision and Tailoring Rule 

Are Meritless ...............................................................................................15 

1. Plain Language, Court Precedent, and Long-Standing Agency Regulations 

Show That the Preconstruction Permitting Requirements Apply to Major 

New or Modified Emitters of Each Pollutant Regulated Under the Act. ....16 

2. Administrative Necessity Justifies EPA’s Decision 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 Unsubstantiated ...........................32 

III. A STAY WOULD SUBSTANTIALLY INJURE THE STATES AND THE 

PUBLIC AND IS CONTRARY TO THE INTERESTS OF BUSINESSES 

PREPARING FOR IMPLEMENTATION .....................................................38 

A. A Stay Would Harm the States and the Public by Allowing Large and 

Prolonged Increases in Injurious Air Pollution ...........................................39 

B. A Stay Would Adversely Affect Businesses That Are Preparing for 

Implementation and That Depend on a Stable, Predictable Regulatory 

Roadmap .....................................................................................................46 

CONCLUSION ........................................................................................................49 

 

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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 Reconsideration) ..................................... 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 Rule) ............................... 25, 29 

75 Fed. Reg. 53,892 (Sept. 2, 2010) (proposed SIP Call) .......................................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. (1992) ........................................... 9 

S. Rep. No. 95-127 (1977) .......................................................................................42 

* Authorities chiefly relied upon are marked with an asterisk. 

 

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GLOSSARY

PARTIES

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

Association of Manufacturers and several other Petitioners (“NAM Mot.”); 

the Coalition for Responsible Regulation, Inc. and its co-Petitioners along 

with Petitioners from four other Petitions (“CRR Mot.”); and the State of 

Texas, which filed one motion to stay solely the Tailoring Rule (“Tex. 

Tailoring Mot.”) and another to stay three other EPA actions (“Tex. Mot.”). 

Intervenors: States and Environmental organizations have intervened to support 

EPA as to one or more of the agency actions under review. Arizona, 

Connecticut, and Minnesota are intervenors in the Endangerment cases. 

 Delaware, Vermont, Washington, and New York City are intervenors in the 

Endangerment and Vehicle Rule cases. New Hampshire is an intervenor in 

the Endangerment and Tailoring Rule cases. North Carolina has intervened 

in the Tailoring Rule case. California, Illinois, Iowa, Maine, Maryland, 

Massachusetts, New Mexico, New York, Oregon, the Pennsylvania 

Department of Environmental Protection, and Rhode Island are intervenors 

in the Endangerment, Vehicle Rule, and Tailoring Rule cases. Intervenors 

joining this response also include the nonprofit public interest environmental 

organizations Center for Biological Diversity; the Conservation Law 

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Foundation; the Environmental Defense Fund; Georgia ForestWatch; the 

Indiana Wildlife Federation; the Michigan Environmental Council; the Ohio 

Environmental Council; the National Wildlife Federation; the Natural 

Resources Council of Maine; the Natural Resources Defense 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 for 

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 Standards and 

Corporate Average Fuel Economy Standards; Final Rule,” 75 Fed. Reg. 

25,324 (May 7, 2010) 

Timing Decision: “Reconsideration of Interpretation of Regulations that 

Determine Pollutants Covered by Clean Air Act Permitting Programs,” 75 

Fed. Reg. 17,004 (Apr. 2, 2010) 

Tailoring Rule: “Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule,” 75 Fed. Reg. 31,514 (June 3, 2010) 

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RELATED PROPOSED RULES

FIP Rule: “Action to Ensure Authority to Issue Permits under the Prevention of 

Significant Deterioration Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan,” 75 Fed. Reg. 53,883 (Sept. 2, 2010) 

SIP Call: “Action to Ensure Authority to Issue Permits under the Prevention of 

Significant Deterioration Program to Sources of Greenhouse 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 Processes and 

Procedures of the IPCC (InterAcademy Council, 2010)

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IPCC: United Nations Intergovernmental Panel on Climate 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 Endangerment and Cause or 

Contribute Findings for Greenhouse Gases under Section 202(a) of 

the Clean Air Act 

SIP: State Implementation Plan 

SMAQMD: Sacramento Metropolitan Air Quality Management District 

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 for Greenhouse 

Gases Under Section 202(a) of the Clean Air Act: Technical 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 Respondents

respectfully submit this joint response in opposition 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 application 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. 25,324 (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 Court to stay the latter three 

decisions as to stationary sources but does not seek 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 stay motions are, in the end, 

insubstantial. Movants’ central claims on the merits 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, often unconnected to the actual 

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decisions under review, and unsubstantiated; and Movants simply ignore 

significant harms that a stay would cause other parties 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 Timing Decision and the 

Tailoring Rule serve only to reduce burdens on regulated 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 standards 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 enjoin 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 either do not affect them or 

actually benefit them, and because the harms they allege 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 Air 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 apply when a pollutant is subject to 

regulation under the Act. But the carefully wrought criteria in Section 202(a) 

command the endangerment decision to be made on scientific grounds alone and 

restrict the consideration of costs to those relating 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 respected. See, e.g., Whitman v. 

 

genuine doubt whether Movants can demonstrate the injury, 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) (redressability lacking where 

“[e]ven if appellants prevailed on the merits in their challenge” to regulations, the 

underlying statute and previously promulgated regulations “would still be in 

place”). While recognizing that standing is a separate 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 addresses 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 the 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 nothing to do with whether 

greenhouse gas emissions contribute to climate change”). 

Second, Movants assert that even after vehicle emissions of greenhouse 

gases become regulated under Section 202(a), stationary sources of those 

pollutants are exempt from the Title I, Part C permitting program. But the Act 

expressly extends this permitting program to each new or modified major source 

located in any clean air area, and expressly requires each such source to install 

modern pollution controls for “each air pollutant subject 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 language are not 

likely to succeed. While this alone is reason enough 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 interpretation 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 disregard the serious harms a stay 

would cause to intervenor states and the public interest. 

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 “an ‘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 matter 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 will examine four factors: 

“(1) whether the stay applicant has made a strong showing that he is likely to 

succeed on the merits; (2) whether the applicant will be irreparably injured absent a 

stay; (3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.” Nken, 129 S. 

Ct. at 1761 (citation and internal quotations omitted). 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 irreparable harm must be “both 

certain and great; it must be actual and not theoretical.” Wis. Gas Co. v. FERC, 

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758 F.2d 669, 674 (D.C. Cir. 1985). The claimed injury must be “of such 

imminence that there is a clear and present need for equitable relief to prevent 

irreparable harm.” Id. (citation and internal quotations omitted). Movants 

claiming irreparable harm must demonstrate that “the alleged harm will directly 

result from the action which the movant seeks to enjoin” 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 again, 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 what 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 prong and show some 

irreparable injury, a stay must nonetheless be denied 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 does 

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 litigation 

involving “the administration of regulatory statutes 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 prong 

requires respecting the choices of “Congress, the elected 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 best 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 – especially 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 Mot. at 26-29; and that EPA 

ignored other possible causes of global warming, CRR Mot. at 38-42. EPA 

considered and rejected both lines of attack. Neither has merit, let alone 

overcomes the “extreme degree of deference” EPA receives 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 of the U.S. Global Change 

Research Program (“USGCRP”) and National Research Council (“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 to 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 National 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 decisions 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 bodies produce 

“highly credible scientific assessment reports”). 

 The IPCC’s international preeminence is widely accepted. For example, the 

Senate acknowledges the IPCC’s work is “viewed throughout most of the 

international scientific and global diplomatic community as the definitive 

statement on the state-of-the-art knowledge about global 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 research activities . . . with such 

activities of other nations and international organizations.” 15 U.S.C. § 2934.

Even so, EPA carefully considered each of Movants’ allegations regarding 

the credibility of the IPCC’s work, and properly rejected them as being meritless. 

See, e.g., RTP, Vol. 3 at 7 (Movants “routinely misunderstand or mischaracterize 

the scientific issues they are raising, resorted to hyperbole [and] broadly impugned 

the ethics and scientific integrity of climate scientists 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 addition, 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 peer 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 by misciting the extrarecord InterAcademy Council (“IAC”) Report, which, in fact, reconfirmed the 

value of the IPCC’s work while recommending specific 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 did not call the IPCC’s core 

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10

scientific conclusions, or their basis, into question.”). 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 volunteer scientists and government 

representatives working together on behalf of the IPCC “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,” Tex. 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 only 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 suggest that, if anything, future 

sea level rise is likely to be near or above the high end of the IPCC projections.” 

RTC, Vol. 4 at 61; see also MacCracken Dec. (Ex. 32) ¶ 38 (EPA’s sea level rise 

conclusions are “quite cautious[]”). 

 CRR advances a second line of attack, asserting that EPA ignored that 

some “unknown” quality of the sun and clouds may actually be causing global 

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11

warming. CRR Mot. at 38-42. In fact, EPA considered and rejected this allegation 

as being “inconsistent with the vast majority of the 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 these 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; MacCracken Dec. 

(Ex. 32) ¶¶ 26-28 (concluding that EPA accurately identified the distinctive 

“fingerprint” of greenhouse gases). According to EPA, 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 percent 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 rejecting CRR’s red herring. See

TSD at 17. 

 

3

 EPA also noted that CRR’s suggestion that global warming 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 Endangerment 

 Not only do CRR and Texas misread the law, they also misread the record. 

See EPA Resp. at 20-29. Specifically, Movants’ contention that EPA was required 

to “define” or quantify a threshold for endangerment, 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 demonstrating 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 have defined what is protective 

of human health or the environment numerically, in terms of the threshold risk 

level that will trigger” specified requirements under the Resource Conservation 

and Recovery Act; there was “nothing in the statutory 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 compelling that elevated 

concentrations of heat-trapping greenhouse gases are the root cause of recently 

observed climate change”; “The attribution of observed 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 endangerment 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 offered 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 principles 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 international scientific 

communities”). EPA’s careful and detailed discussion belies claims that it reached 

these conclusions “arbitrarily” or “without meaningful 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 utterly inapposite, as that case 

turned on inadequate record evidence, while the record 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 any risk whatsoever of deaths 

due to exposures at 10 ppm,” and relied instead on a “theory” that some deaths 

were likely at lower levels) (emphases added).

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B. Movants’ Challenges to the Vehicle Rule Are Groundless 

 EPA ably explains why Movants’ challenges to the Vehicle 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 emissions from 

American motor vehicles that exceed the entire national emissions of almost every 

other country in the world (including Japan, Germany, and Brazil), 74 Fed. Reg. at 

66,539, and also does more to reduce those emissions 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 determined (properly) that motor 

vehicles “contribute” to the global warming endangerment EPA had also found to 

exist, the agency had a statutory obligation to promulgate a vehicle rule, without 

regard to stationary source costs that might be triggered 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 narrow, 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 contrast 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 Technology (“BACT”) 

determinations are made “on a case-by-case basis,” mostly by numerous state

permitting authorities. 42 U.S.C. § 7479(3). Moreover, such BACT 

determinations evolve over time as new and modified sources of many different 

kinds apply for PSD permits. Indeed, the House Report observes that “any attempt 

to determine uniform national costs and benefits” of 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 task of estimating stationary 

source BACT costs in adopting regulations under 42 U.S.C. § 7521. 

C. Movants’ Arguments Concerning the Timing Decision and Tailoring 

Rule Are Meritless 

 Movants seek to stay the two EPA actions pertaining to stationary sources of 

greenhouse gases – the Timing Decision and the Tailoring Rule – even though 

those actions actually benefit them. Movants cannot demonstrate any likelihood of 

success, because their contentions conflict with the 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 regulations 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 Permitting 

Requirements Apply to Major New or Modified Emitters of Each 

Pollutant Regulated Under the Act 

EPA’s Response refutes Movants’ arguments that preconstruction permitting 

applies only to sources of pollutants for which a National Ambient Air Quality 

Standard (“NAAQS”) has been promulgated. The plain text of the Act applies the 

Part C permitting program to sources emitting sufficient 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 encompassing 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 appears in the 1990 amendments to 

Section 112, where Congress provided a specific permitting provision for sources 

of hazardous air pollutants and exempted those pollutants from Section 165 

permitting. See 42 U.S.C. § 7412(b)(6). These amendments confirm that Congress 

viewed the preconstruction permitting program as applicable 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 emissions 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 expansive 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” pollutant 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 classified as a ‘major emitting facility’ 

may not be a pollutant for which NAAQS have been promulgated . . .”) (emphasis 

added). Accordingly, NAM’s contention that a source cannot be a “major emitting 

facility” by virtue of emitting non-NAAQS pollutants – including greenhouse 

gases – must fail. 

 NAM’s arguments ignore the plain text and structure 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 source in such area can be subject to 

both Part C and Part D permitting. Part D requirements 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, including 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. § 7476, limits Part C’s 

applicability to criteria pollutants. CRR Mot. at 51. But Alabama Power rejected 

a substantially identical argument that “review under 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 major substantive 

provisions shall be effective after 7 August 1977 with regard to each pollutant 

subject to regulation under the Act. . . .” Id. at 406 (emphasis added, footnotes 

omitted). Movants ask the Court to find that, because 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. This Court has rejected an analogous 

argument as “border[ing] on sophistry”: 

 

8

See 42 U.S.C. § 7503(a)(1)(A) (requiring major new sources to obtain emission 

reductions assuring “reasonable further progress”); 42 U.S.C. § 7501(1) (defining 

“reasonable further progress” to include “reductions 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 standard”) (emphasis added). 

 

9

See 45 Fed. Reg. at 52,711. Even if there were any ambiguity in the statutory 

language, Movants have failed to show that EPA’s reading is an unreasonable 

interpretation. EPA Resp. at 48, 54-56. 

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[W]e are unconvinced that the word “shall” expresses not only a mandatory 

direction, but also a limiting principle . . . . We 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 Congress intended to limit 

preconstruction review under Section 165 only to NAAQS 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 describe certain air pollutants”). 

Instead, Congress ensured that the program would apply broadly “to protect public 

health and welfare from any actual or potential adverse effect,” 42 U.S.C. 

§ 7470(1), including effects on “weather” and “climate,” 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 greenhouse 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 Timing 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 requires 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, environmental, and 

economic impacts and other costs, determines is achievable for such facility. 

42 U.S.C. § 7479(3) (emphasis added). Congress itself made the decision that 

major sources must undergo this BACT review for “each pollutant subject to 

regulation,” and provided for a case-by-case, source-specific consideration of the 

relevant costs and benefits. It is well settled that agencies and courts must honor 

such congressional choices concerning how, when, and 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 analysis 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 compelled by the Act’s plain text. 

2. Administrative Necessity Justifies EPA’s Decision to Phase in 

Greenhouse Gas Regulation 

Correctly understanding that Section 165 permitting applies to greenhouse 

gases once they are regulated pollutants, EPA acknowledges that it must 

implement the statute. At no point does EPA deny that the plain language of 

Section 169(1) sets the thresholds for “major” status 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,” this Court has recognized 

“Exemptions Born of Administrative Necessity,” stating: “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 greenhouse gases are emitted from 

stationary sources in much higher volumes than pollutants 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 have not previously been subject 

to permitting under Section 165, inundating permitting 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, 2009). Permitting greenhouse 

gases emissions under the PSD program provides just such a rare case, where 

administrative necessity justifies provisionally departing from the literal language 

of the statute to ensure that air permitting does not grind to a halt. 

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Movants mischaracterize the Tailoring Rule as providing sources with 

permanent exemptions from the statutory requirements 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 exemptions”). 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 preconstruction permitting that 

allows EPA and state agencies to move toward literal application of the statute. 

Indeed, EPA commits in the Rule to complete additional 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. at 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 while not paralyzing air permitting 

programs. EPA relies to a large degree on evidence submitted by states – 

including state petitioners – to support its conclusion that immediately applying the 

statutory thresholds to greenhouse gases would result in permit paralysis. 75 Fed. 

Reg. at 31,535-36; see EPA Resp. at 16 n.7. EPA has demonstrated that without 

provisional administrative relief, “practical considerations 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 “cannot 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 concludes 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 intent.” 140 F.3d 1060, 1068 (D.C. 

Cir. 1998). Movants try to bootstrap EPA’s acknowledgment of administrative 

difficulties into an argument that it is “absurd” to 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 Movants’ 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 similar to the one that the Court 

rejected in Mova, 140 F.3d at 1069 (“FDA has embarked upon an adventurous 

transplant operation in response to blemishes in the 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 interpretation that “would 

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24

correct one potential anomaly while creating others”); Whitman, 531 U.S. at 486 

(“The EPA may not construe the statute in a way that 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 EPA’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 provisions of the Act. 

II. MOVANTS HAVE FAILED TO SHOW IRREPARABLE HARM 

A. Movants Have Not Demonstrated States Will Suffer Irreparable Harm 

Movants speculate that on January 2, 2011, many states will be legally 

unprepared to implement the Section 165 permit program for greenhouse gas 

emission sources, leading to a de facto “construction moratorium” in some states 

and a flood of permit applications from small sources 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 Texas, all other states are 

taking action on their own and/or in cooperation with EPA to ensure that: (1) 

 

10 On the question of irreparable harm, Movants’ focus, 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 preconstruction permit under the Tailoring 

Rule will be able to get it from either state or federal authorities, and (2) every 

source that does not need a preconstruction permit under the Tailoring Rule 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 analysis 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 one 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 actions that will assure that 

no source needing a Section 165 permit under the Tailoring 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. 53,883 (Sept. 2, 2010) (proposed 

FIP Rule); 75 Fed. Reg. 53,892 (Sept. 2, 2010) (proposed SIP Call); 75 Fed. Reg. 

at 31,525 (describing limitation of prior SIP approvals to levels above the Tailoring 

Rule thresholds). Pursuant to these actions, Section 165 permitting will be 

implemented in time to avoid any potential permitting delays, in all states except 

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

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26

federal regulations; or (3) by EPA under federal regulations. See NACAA Report; 

McCarthy Dec. attach. 1. The attached declarations from state air pollution

officials from across the country further show – contrary to Petitioners’ unfounded 

speculation – that states are ready, willing, and able to implement PSD permitting 

for greenhouse gas emissions come January 2, 2011, or shortly thereafter. 

Declaration of Kathrine Pittard (“SMAQMD Pittard Dec.”) (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.”) (Ex. 6) ¶¶ 3-4; Declaration of 

James P. Brooks (“Me. Dec.”) (Ex. 10) ¶¶ 5-7; Declaration 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. Dec.”) (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 Valentinetti (“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 numerous states are at risk of a 

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27

Texas is the sole state that is both refusing to change its own regulations and 

resisting EPA’s backstop procedure to assure that sources can get a federallyissued permit. See Tex. Tailoring Mot. attach. 2 (“Texas Letter to Lisa Jackson”) 1 

(“On behalf of the State of Texas, we write to inform you that Texas has neither 

the authority nor the intention of interpreting, ignoring, or amending its laws in 

order to compel the permitting of greenhouse gas emissions.”). But Texas is 

unwilling, not unable, to meet the Clean Air Act’s requirements 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 protect 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 party 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 sources – 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 permitting 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 regulatory 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, standing alone, may . . . preclude 

the granting of preliminary injunctive relief, because 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 stay.”); Va. Petroleum Jobbers 

Ass’n, 259 F.3d at 926-27 (“[h]ypothetical, self-inflicted losses” do not justify a 

stay). 

Further, the harms that Texas alleges it will suffer are highly speculative and 

unsubstantiated. Texas claims that the possibility of a “construction moratorium” 

that could affect as many as 167 sources in 201112 is causing “uncertainty and 

harm to the State’s business environment,” Tex. Tailoring Mot. at 16, even though 

EPA is preparing to carry on necessary permitting if the state defaults. A party 

moving for a stay is required to demonstrate that the 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 permitting of such projects fail to 

account for the fact that no new permits are required at all under the EPA rules for 

the first half of 2011 on the basis of greenhouse gas emissions alone, resulting in 

gross inflation of the alleged harm estimated during 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 necessary staff to permitting. 

Tex. Tailoring Mot. attach. 6 (“Hagle Dec.”) 14. EPA 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 authority” 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 manage its own clean air 

program because EPA has not allowed Texas enough time to make SIP revisions 

and is forcing the state to surrender to a FIP. Tex. Tailoring Mot. at 30-32. Again, 

Texas’s alleged harm is of its own making. Other states 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; Me. 

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 of states like Texas that will not 

be ready in time, EPA has made clear that it will step in only for as long as it takes 

the states to develop their own program, and encourages those states to retain as 

much discretion as possible over their air permitting programs by agreeing to 

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implement the federal requirements as EPA’s delegatees. 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 otherwise managing their clean air 

resources. See Ill. Dec. (Ex. 7) ¶¶ 5-6. 

Texas also complains about the administrative expenses of carrying out a 

permit program. Tex. Tailoring Mot. at 18-19. However, 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 for administering a permit 

program under a FIP. See McCarthy Dec. ¶ 61 (stating that EPA “expects to have 

adequate resources” to implement permitting in states 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 future, 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 irreparable harm from 

administrative expenses related to implementing greenhouse gas permitting under 

the Tailoring Rule thresholds. To the contrary, many 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 required by the Tailoring Rule and has 

sufficient knowledge and expertise to specify greenhouse gas BACT on a case-bycase basis, which is likely to focus largely on energy 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); Del. 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 Tailoring Rule thresholds under 

current and approved permitting staffing levels); Md. Dec. (Ex. 9) ¶ 4 (state 

currently has adequate resources to implement permitting under the Tailoring 

Rule); Mass. Dec. (Ex. 8) ¶ 5 (state will have sufficient 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 permits and two pending 

applications that would require a GHG BACT evaluation, “which is not expected 

to be a major workload,” and after July 2, 2011, seven landfill facilities that will 

require Title V permits); N.M. Aff. (Ex. 14) ¶ 4 (state 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 sources 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 implement greenhouse gas permitting 

under the Tailoring Rule).13

 

B. Movants’ Claims of Irreparable Economic Harm to Private Firms or 

the Economy at Large Are Speculative and Unsubstantiated 

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 the 

alleged costs of “GHG regulation,” see, e.g., CRR Mot. at 67 (citing Peelish Dec. 

¶¶ 11-12), Movants and their Declarants utterly fail 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 EPA’s 

actions will result in “project cancellations,” raise energy prices, and harm “all 

sectors of the American economy,” NAM Mot. at 40, 43, are transparently 

speculative – as are the claims that private citizens will “bring ruinous suits against 

any commercial, residential, or manufacturing GHG source they disfavor,” id. at 

52. Likewise, CRR fails to show how collateral uses of the Endangerment Finding 

(e.g., references to it in NEPA litigation) will cause any 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 greenhouse gases during the 

period of a potential stay. Indeed, many of the Declarants acknowledge that the 

firms they represent will not be seeking to construct facilities with emissions 

exceeding the Tailoring Rule’s thresholds during the 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 foundation). Finally, some of 

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the claims about harm are simply wrong. See Brick Dec. (Ex. 22) ¶¶ 15, 26 (noting 

that alleged harms to ethanol refiners are not supported by the facts about that 

industry). 

When Declarants do claim that a specific project will 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 profitable 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 EPA greenhouse gas regulations 

he is challenging were even proposed. See Letter from Richard Southwick, 

Permitting & Envtl. Manager, South Heart Coal, to Illona Jeffcoat-Sacco, Exec. 

Sec’y, North Dakota Pub. Serv. Comm’n (Jan. 23, 2008) (Ex. 36) (expressing 

intent to construct a coal gasification facility). 

Similarly, Kerr seeks to blame EPA’s actions for the difficulties faced by a 

proposed power plant in North Dakota. But Kerr fails to mention other obstacles – 

from local zoning issues to concerns about the plant’s impact on a nearby national 

park.14 Kerr speculates that a future BACT emissions limit might result in a 

 

14 In addition to failing to mention when key events occurred, Mr. Kerr also 

neglects to note that the project has faced serious other hurdles, including zoning 

issues and problems concerning adverse impacts of its 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 speculation, GNPD recently asked 

that land in Stark County, North Dakota be rezoned, requesting a conditional use 

permit to construct an “electric power generating plant.” Application for Industrial 

District Zoning and Conditional Use Permits South Heart Project (Ex. 39) 1. 

General allegations about decreasing demand for coal or uncertainty in the 

coal markets also miss the mark. See CRR Motion Exs. 22, 24. For instance, CRR 

Declarant Michael Peelish “altogether ignores other compelling economic factors 

that have contributed to the trends he observes,” including (1) a sharp drop in 

natural gas prices, which leads firms to switch from coal to gas; (2) a reduction in 

electricity demand due in part to the recession that 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 Comm’rs, 

Nos. 08C-282 (S.W. Jud. Dist. N.D. July 22, 2009) (reversing zoning decision to 

rezone land from agricultural to industrial use, which 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, 2010) (Ex. 38). 

Mr. Kerr also fails to mention that the company has not yet submitted a 

preconstruction permit for the proposed coal gasification facility. 

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and (3) higher construction costs (which rose 76 percent 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 ongoing 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 overall economy would suffer 

significant, let alone irreparable, economic harm during the stay they seek. Two of 

NAM’s declarants – Bezdek (NAM Mot. Ex. 13) and Thorning (NAM Mot. Ex. 

19) – based their harm projections on analyses of unenacted economy-wide carbon 

cap-and-trade legislation. According to Dr. Dallas Burtraw, an economist at 

Resources for the Future, analyses “regarding the economic impacts of a cap and 

trade program are irrelevant to assessing the impacts 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 save car 

owners an average of $3,000 (over and above any higher 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 basis, 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 noticeable – for the overall 

economy.” Id. ¶ 11. 

NAM’s assertions about purported effects on the cost of capital and U.S. 

investment are dressed up as expert predictions, but in fact are groundless. See

NAM Mot. at 43 (citing Thorning Dec. ¶ 22). Thorning’s analysis (the most 

heavily cited in NAM’s Motion) is rife with rudimentary flaws. Keohane Dec. 

(Ex. 28) ¶¶ 23-29. For example, Thorning relies only on general sources about the 

relationship between capital and investment that are utterly unrelated to EPA’s 

action. See id. ¶¶ 23-24 (noting that the report cited by Thorning 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 premium” 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 “uncertainty,” 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 predated the EPA actions at issue 

here. For example, coal companies have long recognized (in securities filings, and 

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elsewhere) that future greenhouse gas regulation poses economic risks for them, 

and markets have already incorporated those risks into 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; Knapp 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 greenhouse 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’ disclosures of regulatory and 

other risk associated with greenhouse gas regulation in 2008 filings and discussing 

risk factors); see also Securities and Exchange Commission Guidance Regarding 

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 even hundreds of years after the 

time period of a potential stay. A stay is also manifestly contrary to the public 

interests reflected in the Clean Air Act. When litigation concerns “the 

administration of regulatory statutes designed to promote the public interest,” the 

question of where the public interest lies is “crucial” and “[t]he interests of private 

litigants must give way to the realization of public purposes.” Va. Petroleum 

Jobbers Ass’n, 259 F.2d at 925, 927. 

The injurious impacts on state sovereigns and to the important public interest 

in the protective, carefully designed and stable implementation of statutory 

requirements to reduce deleterious air pollution weigh heavily against a stay. 

A. A Stay Would Harm the States and the Public by Allowing 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] its 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 associated 

with global warming has already harmed and will continue 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 impacted by erosion and 

inundation); Mass. Dec. (Ex. 8) ¶ 8 (explaining that 75 percent of Massachusetts’ 

population is located in coastal areas); 74 Fed. Reg. at 66,533, 66,534-36 (“[S]ea 

level is rising along much of the U.S. coast, and the rate of change will very likely 

increase in the future, exacerbating the impacts of progressive inundation, stormsurge flooding, and shoreline erosion.”). States will also have to grapple with 

severe heat and exacerbation of harmful ozone (smog) levels,16 more frequent 

severe weather events, reduced water supplies and snowpack, decreased water 

quality, increased wildfires, and loss of biodiversity. 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 interests because it would 

allow the production of long-lived vehicles, and the construction of long-lived 

 

16 Some harms, in particular the health impacts of elevated temperatures and 

reduced air quality, disproportionately affect vulnerable 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 harms 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 sources such as power plants. 

Furthermore, the damage from these emissions would persist for well over a 

century, given the long atmospheric lifetime of greenhouse 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 Endangerment Finding) just for 

model year 2012 (which begins January 2, 2011) would allow vehicles built during 

that model year to emit an additional 35.8 million tons of carbon dioxide 

equivalent over their lifetimes, even with application 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 monetized 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 requirements could result in the 

release of hundreds of millions of extra tons of greenhouse gas emissions by 

allowing the construction of dozens of new or modified major stationary sources 

that will operate for decades without any greenhouse 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 potential to emit greenhouse gases 

ranging from 30 million to 90 million tons of carbon dioxide annually. See Krust 

Dec. (Ex. 30) ¶¶ 5-8. Achieving even a modest efficiency improvement of five 

percent at a 1000 megawatt coal-fired plant could reduce 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 years 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 emissions would have a 

cumulative effect on the composition of the atmosphere 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 emission control technology. EPA’s 

greenhouse gas emissions standards for new motor vehicles and case-by-case 

BACT determinations reflect the core technology-advancing policies of the Clean 

Air Act. See, e.g., S. Rep. No. 95-127, at 17-18 (1977) (Congress intended BACT, 

as “[p]ossibly the most important” of the 1977 Act’s many technology-fostering 

measures, to spur “improvements in the technology of pollution control.”). Such 

technological advances are crucial to addressing climate 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 emissions was closely linked to the 

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increase the risks of dangerous, abrupt climate change. 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 threshold or tipping point that, once 

crossed, will trigger uncontrollable disintegration of the ice sheets, and 

concomitant sea level rise of several meters starting during this century. See

Hansen Dec. (Ex. 27) ¶¶ 18-23; MacCracken Dec. (Ex. 32) ¶ 45. Continuation of 

the current global emission trajectory will make crossing tipping points 

unavoidable. See Hansen Dec. (Ex. 27) ¶¶ 23, 29, 33. Thus, each day of delay in 

reducing greenhouse gases increases the risk of crossing 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 emissions. See Keohane Dec. (Ex. 

28) ¶ 43 & Figure 3 (showing annual U.S. patent filings relevant to sulfur dioxide 

control systems before and after clean air legislation in the U.S. Congress); see 

also Walsh Dec. (Ex. 35) ¶¶ 9-10 (noting that motor vehicle 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 advances 

for control of sulfur dioxide and nitrogen oxides from 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 change impacts. Many of the state 

intervenors are mitigating climate impacts by taking steps under their own control 

to reduce greenhouse gas emissions. For example, states are participating in 

regional greenhouse gas cap and trade programs, have adopted California’s 

passenger vehicle low emission and greenhouse gas standards, and have created 

state-specific programs and initiatives to reduce emissions.18 

Because EPA’s regulation of greenhouse gases significantly advances the 

goal of minimizing impacts, state intervenors strongly support EPA’s efforts. See, 

e.g., N.H. Dec. (Ex. 12) ¶ 6 (“Tailoring Rule is an important 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; Iowa 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” standards, 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 enacted legislation to reduce 

statewide greenhouse gas emissions by 25% by the year 2020 and to develop a 

plan to reduce such emissions by up to 95% by the year 2050. See Md. Dec. (Ex. 

9) ¶ 8. See also Wash. Dec. (Ex. 19) ¶ 6 (noting that the Washington legislature 

has committed to reducing emissions to 1990 levels by 2020, and to 50% below 

1990 levels by 2050). States like Massachusetts have made implementation of 

these programs a priority, even though government resources 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 regulations, 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 compliance 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. Reg. 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) (notice of 

intent to conduct joint EPA and DOT rulemaking on model year 2017- 2025 lightduty vehicle greenhouse gas emission and fuel economy standards working closely 

with the California Air Resources Board); Presidential Memorandum Regarding 

Fuel Efficiency Standards (May 21, 2010), www.whitehouse.gov/the-pressoffice/presidential-memorandum-regarding-fuel-efficiency-standards (last visited 

Oct. 30, 2010). 

In addition, if the Tailoring Rule is stayed, states will be saddled with the 

unmanageable administrative burdens the rule is designed to avoid. See Md. Dec. 

(Ex. 9) ¶ 5; Me. Dec. (Ex. 10) ¶ 9; Wash. Dec. (Ex. 19) ¶ 4; Or. Dec. (Ex. 1f6) ¶ 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 55
46

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 permits under the Tailoring Rule. 

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

climbs to 410. See id. The state intervenors generally have adequate resources to 

handle the permitting load expected under the Tailoring 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 ensue without the rule “could . 

. . result in severe impairment or delay in the functioning” 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 Preparing for 

Implementation and That Depend on a Stable, Predictable Regulatory 

Roadmap 

A stay would be contrary to the interests of businesses preparing to comply 

with EPA’s rules. By disrupting rules carefully designed to provide a measured, 

workable implementation framework, a stay would create uncertainty for 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 56
47

companies with existing and proposed sources both above and below the Tailoring 

Thresholds. See Bradley Dec. (Ex. 21) ¶¶ 1, 9-11 (Clean Energy Group) (“EPA 

has demonstrated a careful, measured approach, seeking input from industry and 

other stakeholders, and limiting the initial scope of regulation through the 

Tailoring Rule.”); Miller Dec. (Ex. 33) ¶ 10 (Calpine Corporation); Knapp Dec. 

Ex. 29 ¶¶ 4, 6 (South Carolina Small Business Chamber of Commerce); Collette 

Dec. (Ex. 25) ¶¶ 5, 8 (“A stay would create the situation where small businesses 

would not know whether or not their sources would be 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 “make clear which sources are 

required to comply with PSD for GHG emissions and which are not, and when the 

obligations of covered sources take effect.”). A stay would, for example, intensify 

regulatory uncertainty for Calpine Corporation by de-stabilizing the permit 

implementation framework and creating risks “that could negatively affect the 

financing of new generation projects that would reduce 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 Rule thresholds. See Miller 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 57
48

Dec. (Ex. 33) ¶¶ 4, 7, 8. At one such plant, Russell 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 contrary to the interests of 

businesses that have been preparing for implementation 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 benefit from the rules. See Lederer 

Dec. (Ex. 31) ¶ 5. The Small Business Majority opposes a stay because it would 

“delay and disrupt efforts to achieve controls of greenhouse 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 interests, such as the South Carolina 

Small Business Chamber of Commerce, that are pursuing clean energy 

technologies as business growth opportunities. See Knapp Dec. (Ex. 29) ¶¶ 4-6. 

In sum, by disrupting a clearly delineated framework for implementation, a 

stay would “exacerbate rather than ameliorate uncertainty,” creating a volatile 

regulatory environment that delays capital investment and prolongs “the period of 

‘limbo’ before the regulations take effect.” Keohane Dec. (Ex. 28) ¶ 30. 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 58
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CONCLUSION 

The motions for a stay should be denied in all respects. 

 

Respectfully submitted, 

Dated: November 1, 2010 /s/ MORGAN A. COSTELLO

 MORGAN A. COSTELLO

Assistant Attorney General 

Environmental Protection Bureau 

The Capitol 

Albany, NY 12224 

(518) 402-2594 

ANDREW M. CUOMO

Attorney General of New York 

MICHAEL J. MYERS

MORGAN A. COSTELLO

Assistant Attorney General 

Environmental Protection Bureau 

The Capitol 

Albany, NY 12224 

(518) 402-2594 

YUEH-RU CHU

ISAAC CHENG

Assistant Attorneys General 

Environmental Protection Bureau 

120 Broadway 

New York, NY 10271 

(518) 416-8450 

Attorneys for Intervenor State of New 

York

EDMUND G. BROWN JR. 

Attorney General of California 

KATHLEEN A. KENEALY

Senior Assistant Attorney General 

SUSAN DURBIN

RAISSA LERNER

MARC N. MELNICK

NICHOLAS STERN

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 

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50

MARTHA COAKLEY 

Attorney General of Massachusetts 

WILLIAM L. PARDEE

CAROL IANCU

TRACY TRIPLETT

Assistant Attorneys General 

Environmental Protection Division 

One Ashburton Place, 18th Floor 

Boston, MA 02108 

(617) 963-2428 

Attorneys for Intervenor 

Commonwealth of Massachusetts

TERRY GODDARD

Attorney General of Arizona 

JOSEPH P. MIKITISH

JAMES T. SKARDON

Assistant Attorneys General 

1275 W Washington Street 

Phoenix, AZ 85007 

(602) 542-8535 

Attorneys for Intervenor State of 

Arizona 

RICHARD BLUMENTHAL

Attorney General of Connecticut 

KIMBERLY P. MASSICOTTE

MATTHEW I. LEVINE

SCOTT N. KOSCHWITZ

Assistant Attorneys General 

55 Elm Street 

P.O. Box 120 

Hartford, CT 06106 

(860) 808-5250 

Attorneys for Intervenor State of 

Connecticut 

JOSEPH R. BIDEN, III 

Attorney General of Delaware 

VALERIE M. SATTERFIELD

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 

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51

LISA MADIGAN

Attorney General of Illinois 

MATTHEW J. DUNN

GERALD T. KARR

Assistant Attorneys General 

69 West Washington St., Suite 1800 

Chicago, IL 60602 

(312) 814-3369 

Attorneys for Intervenor State of 

Illinois 

THOMAS J. MILLER

Attorney General of Iowa 

DAVID R. SHERIDAN

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 

JANET T. MILLS

Attorney General of Maine 

GERALD D. REID

Assistant Attorney General 

Chief, Natural Resources Division 

6 State House Station 

Augusta, ME 04333-0006 

(207) 626-8545 

Attorneys for Intervenor State of 

Maine 

DOUGLAS F. GANSLER

Attorney General of Maryland 

ROBERTA R. JAMES

Assistant Attorney General 

Maryland Department of the 

Environment 

1800 Washington Blvd. 

Baltimore, MD 21230 

(410) 537-3748 

Attorneys for Intervenor State of 

Maryland 

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52

LORI SWANSON

Attorney General of Minnesota 

STEVEN M. GUNN

Deputy Attorney General 

JOCELYN F. OLSON

Assistant Attorney General 

445 Minnesota Street, Suite 900 

St. Paul, MN 55101 

(651) 757-1244 

Attorneys for Intervenor State of 

Minnesota 

MICHAEL A. DELANEY

Attorney General of New Hampshire 

K. ALLEN BROOKS

Senior Assistant Attorney General 

33 Capitol Street 

Concord, NH 03301 

(603) 271-3679 

Attorneys for Intervenor State of New 

Hampshire 

GARY K. KING

Attorney General of New Mexico 

JUDITH ANN MOORE

Assistant Attorney General 

111 Lomas Blvd., NW Suite 300 

Albuquerque, NM 87102 

(505) 222-9024 

Attorneys for Intervenor State of New 

Mexico 

ROY COOPER

Attorney General of North Carolina 

J. ALLEN JERNIGAN

Special Deputy Attorney General 

MARC BERNSTEIN

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 

JOHN KROGER

Attorney General of Oregon

JEROME LIDZ

Solicitor General 

DENISE FJORDBECK

Attorney-in-Charge, Civil / 

Administrative Appeals 

PAUL LOGAN

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 

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53

PATRICK C. LYNCH

Attorney General of Rhode Island 

GREGORY S. SCHULTZ

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 

WILLIAM H. SORRELL

Attorney General of Vermont 

THEA J. SCHWARTZ

State of Vermont 

Office of the Attorney General 

109 State Street 

Montpelier, VT 05609-1001 

(802) 828-3186 

Attorneys for Intervenor State of 

Vermont 

ROBERT M. MCKENNA

Attorney General of Washington 

LESLIE R. SEFFERN

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 

SUSAN SHINKMAN

Chief Counsel, Commonwealth of 

Pennsylvania, Department of 

Environmental Protection 

ROBERT A. REILEY

KRISTEN M. FURLAN

Assistant Counsel 

PO Box 8464 

Harrisburg, PA 17105 

(717) 787-7060 

Attorneys for Intervenor 

Commonwealth of Pennsylvania 

Department of Environmental 

Protection 

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54

MICHAEL A. CARDOZO

Corporation Counsel of the City of 

New York 

CHRISTOPHER KING

SUSAN KATH

CARRIE NOTEBOOM

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: 64
55

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 

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing State and Environmental Intervenor Joint 

Response to Motions to Stay was electronically filed with the Clerk of the Court 

using the CM/ECF system, which will send notification of said filing to the 

attorneys of record in No. 09-1322 (and consolidated 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 registered 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 have appeared in these cases. 

Date: November 1, 2010 /s/ Violet Lehrer

 Violet Lehrer 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 66