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: 1274376 Filed: 10/28/2010 Page: 1
_____________________________________________ 

 ) 

SOUTHEASTERN LEGAL FOUNDATION, ) 

INC., et al., ) 

 Petitioners, ) 

 ) 

 v. ) No. 10-1131 (and 

 ) consolidated cases) 

UNITED STATES ENVIRONMENTAL ) 

PROTECTION AGENCY, ) 

 Respondent. ) 

_____________________________________________ ) 

EPA’S RESPONSE TO MOTIONS TO STAY 

 IGNACIA S. MORENO 

 Assistant Attorney General 

 

OF COUNSEL THOMAS A. LORENZEN 

JOHN HANNON JON M. LIPSHULTZ 

ELLIOTT ZENICK ANGELINE PURDY 

DAVID ORLIN PERRY ROSEN 

STEVEN SILVERMAN DAVID GUNTER 

BRIAN DOSTER ERIC HOSTETLER 

CAROL HOLMES KIM SMACZNIAK 

HOWARD HOFFMAN U.S. Department of Justice 

Office of General Counsel Environment & Natural Resources Div. 

U.S. Environmental Protection Environmental Defense Section 

 Agency 1200 Pennsylvania Ave., NW 

Washington, D.C. 20460 P.O. Box 23986 

 Washington, D.C. 20026-3986 

October 28, 2010 (202) 305-0733 

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 2
i

TABLE OF CONTENTS

 BACKGROUND ........................................................................................................................ 6 

I. Statutory Background ........................................................................................................... 6 

 A. Statutory Provisions Related to Vehicles ............................................................... 6 

 B. Clean Air Act Provisions Related to Stationary Sources ..................................... 7 

 1. The PSD Program ............................................................................................... 7 

 2. Title V of the Clean Air Act ............................................................................... 9 

 3. Implementation of CAA Requirements for Stationary Sources ................... 9 

 II. EPA Rules and Actions Challenged and Implicated in This Action ........................... 10 

 A. The Endangerment Finding and the Denial of Reconsideration of the 

 Endangerment Finding – Challenged in Case No. 09-1322 ............................. 10 

 B. The Vehicle Rule – Challenged in Case No. 10-1092 ......................................... 12 

 

 C. The Timing Decision – Challenged in Case No. 10-1073 ................................. 14 

 D. The Tailoring Rule – Challenged in Case No. 10-1131 ...................................... 16 

 E. Proposed Implementation Process ....................................................................... 18 

ARGUMENT .............................................................................................................................. 19 

I. STANDARD FOR GRANTING A STAY ..................................................................... 19 

II. MOVANTS FAIL TO MAKE THE REQUIRED STRONG SHOWING 

THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS ........................... 20 

 A. Movants Are Not Likely to Establish that the Endangerment Finding 

 Should be Deemed Invalid ................................................................................. 20 

 

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 1. EPA Properly Construed and Applied the Legal Framework 

 for the Endangerment Finding ................................................................... 22 

 2. EPA Exercised Its Own Judgment and Appropriately Relied on 

 Assessments Prepared by the IPCC and Other Bodies as the 

 Primary Scientific Basis for the Endangerment Finding ...................... 30 

 3. “Climategate” does not undercut the reliability of the IPCC 

 Report........................................................................................................... 32 

 4. The Record Supports EPA’s Scientific Conclusions ............................. 35 

 

 5. EPA Reasonably Defined the Relevant “Air Pollution” and “Air 

Pollutant” to Be a Mix of Six Greenhouse Gases .................................. 39 

 B. Movants Are Not Likely to Establish that the Vehicle Rule Should Be 

 Deemed Invalid ...................................................................................................... 40 

 

 1. EPA Did Not Err by Promulgating Standards That It Had a 

 Nondiscretionary Duty to Promulgate ...................................................... 41 

 2. EPA Appropriately Considered All Required Impacts ........................... 44 

 C. The PSD and Title V Programs of the Clean Air Act Apply to 

 Greenhouse Gas Emissions from Stationary Sources .................................... 47 

 

 1. The Emission of “Any Pollutant” May Subject a Source to 

 PSD............................................................................................................... 48 

 

 2. The Act Imposes PSD Permit Requirements in All Areas 

 That Are “Attainment” or “Unclassifiable” For Any 

 Pollutant ...................................................................................................... 50 

 3. PSD Permits Must Address All Pollutants Regulated Under 

 the Act ........................................................................................................ 53 

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 4. The PSD “Trigger” For Greenhouse Gas Regulation Is Based 

 Solely Upon EPA Decisions That Are Now Beyond Challenge ...... 56 

 5. Congress Intended EPA to Apply the Act to New Pollutants ......... 57 

 

 6. Movants Do Not Seriously Challenge EPA’s Inclusion of 

 Greenhouse Gases in The Title V Permitting Program ...................... 59 

 

 D. The Tailoring Rule Is a Valid Exercise of EPA’s Authority ......................... 60 

 1. The Absurd Results Doctrine Was Properly Invoked ........................ 61 

 

 2. EPA Properly Invoked the Administrative Necessity and 

 Step-at-a-Time Doctrines ....................................................................... 64 

III. MOVANTS HAVE NOT ESTABLISHED THAT THEY WILL SUFFER 

 IRREPARABLE HARM PENDING FINAL RESOLUTION OF THEIR 

 CLAIMS ABSENT A STAY ....................................................................................... 66 

 A. The Alleged Harm to Regulated Industries and Other Non-State 

 Movants is Not Concrete, Imminent, or Irreparable ...................................... 67 

 B. Speculative Concerns Regarding Implementation of Permitting 

 Programs Do Not Establish Irreparable Harm .............................................. 73 

 1. The Initiation of Administrative Processes to Administer 

 Permitting for Greenhouse Gas Emissions Does Not Constitute 

 Irreparable Harm .......................................................................................... 73 

 

 2. There Need Be No De Facto “Construction Moratorium” in 

 Texas ............................................................................................................... 74 

 3. Movants’ Challenges to the Workability of EPA’s Implementation 

 Process Are Speculative and Demonstrably Untrue ............................... 77 

 4. Movants’ Arguments Regarding the Legality of EPA’s 

 Implementation Plans Are Meritless ......................................................... 82 

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 5. Texas Has No Sovereign Right That Will be Irreparably 

 Harmed........................................................................................................... 88 

 C. Movants’ Purported Harm Will Not Be Redressed by a Properly 

 Issued Stay .............................................................................................................. 91 

IV. THE PUBLIC INTEREST AND IMPACTS TO OTHER PARTIES 

DISFAVOR A STAY ....................................................................................................... 93 

CONCLUSION .......................................................................................................................... 100

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TABLE OF AUTHORITIES

CASES

A.O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 1976) ............................................. 72, 73 

Ala. Mun. Distributors Group v. FERC, 312 F.3d 470 (D.C. Cir. 2002) ....................... 69 

*Alabama Power v. Costle, 636 F.2d 323 (D.C. Cir. 1979) ....... 49, 51, 53, 54, 55, 62, 64 

Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61 (D.C. Cir. 2000) ..................... 47 

Am. Road & Transp. Builders Ass’n v. EPA, 588 F.3d 1109 (D.C. Cir. 2009), 

 cert. denied, No. 09-1485, 2010 WL 3834336 (Oct. 4, 2010) .................................. 56 

Am. Water Works Ass’n v. EPA, 40 F.3d 1266 (D.C. Cir. 1994) .................................... 61 

Am. Trucking Ass'ns v. EPA, 283 F.3d 355 (D.C. Cir. 2002) .......................................... 32 

Appalachian Power Co. v. EPR, 249 F.3d 1032 (D.C. Cir. 2001) ................................. 87 

Ass’n of Civilian Technicians v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) ......................... 41 

Astellas Pharma US, Inc. v. FDA, 642 F. Supp. 2d 10 (D.D.C. 2009) ........................... 68 

Bennett v. Spear, 520 U.S. 154 (1997) .................................................................................. 86 

Biovail Corp. v. FDA, 519 F. Supp. 2d 39 (D.D.C. 2007) ................................................ 68 

CSX Transport, Inc. v. Surface Transp. Bd., 584 F.3d 1076 (D.C. Cir. 2009) .............. 87 

 

Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., 

 836 F.2d 599 (D.C. Cir. 1988) ...................................................................................... 62 

Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855 (D.C. Cir. 2001) ............................ 47 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ........ 67 

________________________ 

*Authorities chiefly relied upon are marked with an asterisk. 

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 7
vi 

Chevron USA Inc. v. NRDC, 467 U.S. 837 (1984) .................................. 48,57, 58, 61, 63 

Citizens to Save Spencer County v. EPA, 600 F.2d 844 (D.C. Cir. 1979) ........ 89, 90, 97 

City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) .................................................. 87 

Coal. of Battery Recyclers Ass’n v. EPA, 604 F.3d 613 (D.C. Cir. 2010) ............... 32, 35 

Cobell v. Kempthorne, 455 F.3d 301 (D.C. Cir. 2006) ..................................................... 92 

Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742 

 (D.C. Cir. 1991) ............................................................................................................... 69 

Commissioner v. Brown, 380 U.S. 563 (1965) .................................................................... 61 

Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009), petition for cert. 

 filed, 79 U.S.L.W. 3092 (Aug. 2, 2010) (No. 10-174) ................................................ 68 

Ctr. for Biological Diversity v. DOI, 563 F.3d 466 (D.C. Cir. 2009) .............................. 75 

Cuomo v. U.S. Nuclear Reg. Comm’n, 772 F.2d 972 (D.C. Cir. 1985) .......................... 95 

Davis v. Pension Benefit Guaranty Corp., 571 F.3d 1288 (D.C. Cir. 2009) .................. 67 

Diamond Shamrock Corp. v. Costle, 580 F.2d 670 (D.C. Cir. 1978) ............................. 69 

Environmental Defense Fund v. EPA, 636 F.2d 1267 (D.C. Cir. 1980) ........................ 64 

*Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) ...................................................... 23-27 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ............................... 58 

Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455 (D.C. Cir. 1998) ......................... 65 

Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) ............. 89 

In re Knauf Fiber Glass, GMBH, 8 E.A.D. 121 (E.A.B. 1999) ....................................... 58 

In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631 (1978) ......................................... 61 

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 8
vii 

Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847 (D.C. Cir. 1987) ............... 93 

Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980) .............. 26 

Lead Indus. Ass’n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980) ............................................. 25 

Longshoremen v. Boyd, 347 U.S. 222 (1954) ..................................................................... 78 

Mass. v. Mellon, 262 U.S. 447 (1923) ................................................................................... 75 

Mass. v. EPA, 415 F.3d 50 (D.C. Cir. 2005) rev’d, 549 U.S. 497 (2007) ........................ 26 

*Mass. v. EPA, 549 U.S. 497 (2007) ................................................... 1-5, 10, 21, 23-26, 28, 

 42-44, 53, 57, 58, 63, 65, 95 

Mazurek v. Armstrong, 520 U.S. 968 (1997) ....................................................................... 19 

*Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) ......................... 45 

*Mova Pharm. Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998) ............................. 61, 63 

Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) .............................. 68, 69 

N.C. ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010) ...................... 69 

NRDC v. Browner, 57 F.3d 1122 (D.C. Cir. 1995) ........................................................... 89 

Nat’l Ass’n of Homebuilders v. Corps of Eng'rs, 417 F.3d 1272 

 (D.C. Cir. 2005) ............................................................................................................... 20 

Nat’l Lime Ass’n v. EPA, 233 F.3d 625 (D.C. Cir. 2000) ................................................. 69 

Nat’l Mining Ass’n v. DOI, 70 F.3d 1345 (D.C. Cir. 1995) ............................................. 56 

Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003) .......................... 69 

Negusie v. Holder, 129 S. Ct. 1159 (2009) .......................................................................... 62 

*Nken v. Holder, 129 S. Ct. 1749 (2009) ...................................................................... 20, 93 

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 9
viii 

P&V Enterprises v. Corps of Eng'rs, 516 F.3d 1021 (D.C. Cir. 2008) ........................... 86 

Sampson v. Murray, 415 U.S. 61 (1974) .............................................................................. 67 

Steinhorst Assocs. v. Preston, 572 F. Supp. 2d 112 (D.D.C. 2008) ................................ 93 

Texas v. United States, 523 U.S. 296 (1998)........................................................................ 78 

Tozzi v. EPA, 148 F. Supp. 2d 35 (D.D.C. 2001) .............................................................. 47 

U.S. Telecom Ass’n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) ............................................ 31 

United States v.Am. Trucking Ass’ns, 310 U.S. 534 (1940) ............................................ 61 

United States v. Bryan, 339 U.S. 323 (1950) ....................................................................... 61 

United States v. Cinergy Corp., No. 09-3344, 2010 WL 4009180 

 (7th Cir. Oct. 12, 2010) .................................................................................................. 84 

United States v. Haggar Apparel Co., 526 U.S. 380 (1999) .............................................. 59 

United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001) ....................... 94 

United States v. Students Challenging Regulatory Agency Procedures, 

 412 U.S. 669 (1973) ........................................................................................................ 94 

United Steelworkers of Am. v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980) .............. 31, 32 

Vantico Holdings S.A. v. Apollo Mgmt., 247 F. Supp. 2d 437 (S.D.N.Y. 2003) .......... 77 

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) ....................... 36 

Virginia v. Browner, 80 F.3d 869 (4th Cir. 1996) ............................................................... 89 

Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) ...................................................... 7 

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) ........................................ 65 

*Winter v. NRDC, 129 S. Ct. 365 (2008) ............................................................................ 67 

*Wis. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ......................... 67, 72, 73, 78, 91 

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 10
ix 

FEDERAL STATUTES 

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

42 U.S.C. § 7401(b)(1) ............................................................................................................. 94 

42 U.S.C. §§ 7408-7409 ............................................................................................................ 7 

42 U.S.C. § 7408 ........................................................................................................................ 8 

42 U.S.C. § 7408(a)(1) ............................................................................................................. 28 

42 U.S.C. § 7408(a)(2) ............................................................................................................. 28 

42 U.S.C. § 7409 ........................................................................................................... 8, 25, 28 

42 U.S.C. § 7410 ....................................................................................................................... 9 

42 U.S.C. § 7410(a) .................................................................................................................. 87 

42 U.S.C. § 7410(a)(2)(C) ....................................................................................................... 89 

42 U.S.C. § 7410(c) .................................................................................................................... 9 

42 U.S.C. § 7410(c)(1) ............................................................................................................. 79 

42 U.S.C. § 7410(i) ................................................................................................................... 88 

42 U.S.C. § 7410(k)(1) ............................................................................................................... 9 

42 U.S.C. § 7410(k)(1)(A) ......................................................................................................... 9 

42 U.S.C. § 7410(k)(5) ................................................................................... 10, 79, 86, 87, 88 

42 U.S.C. § 7410)(l) ................................................................................................................ 87 

42 U.S.C. § 7411(a)(4) ........................................................................................................ 8, 49 

42 U.S.C. § 7411(b)(6) ........................................................................................................... 55 

Case: 10-1131 Document: 1274376 Filed: 10/28/2010 Page: 11
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42 U.S.C. §§ 7470-7492 (PSD) ................................................................................................ 2

42 U.S.C. § 7470(1) ............................................................................................................. 7, 94 

42 U.S.C. § 7470(4) .................................................................................................................... 5 

42 U.S.C. § 7471 ................................................................................................ 7, 9, 50, 59, 62 

42 U.S.C. § 7475 ..................................................................................................... 4, 49, 52, 75 

42 U.S.C. § 7475(a) .............................................................................................. 50, 51, 52, 84 

42 U.S.C. § 7475(a)(1) ............................................................................................ 8, 51, 79, 84 

42 U.S.C. § 7475(a)(3)(C) ...................................................................................................... 55 

 

42 U.S.C. § 7475(a)(4) .................................................................................................. 8, 53, 55 

42 U.S.C. § 7476 ............................................................................................................... 52, 54 

42 U.S.C. § 7479(1) .................................................................................. 8, 48, 49, 51, 52, 60 

42 U.S.C. § 7479(1)(C) .......................................................................................................... 49 

42 U.S.C. § 7479(2)(C) ............................................................................................................ 8 

42 U.S.C. § 7479(3) ....................................................................................................... 8, 58, 72 

42 U.S.C. §§ 7501-7515 ..................................................................................................... 8, 84 

42 U.S.C. § 7507 ................................................................................................................. 7, 14 

42 U.S.C. §§ 7521-7590 (Title II) ............................................................................................ 6 

42 U.S.C. § 7521(a) ............................................................................................ 1, 6, 11, 39, 40 

42 U.S.C. § 7521(a)(1) ..................................................................................... 6, 12, 22, 23, 41 

42 U.S.C. § 7521(a)(2) ....................................................................................... 2, 6, 12, 29, 45

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xi 

42 U.S.C. § 7543(a) .................................................................................................................... 6 

42 U.S.C. § 7543(b) ................................................................................................................... 7 

42 U.S.C. § 7545 ............................................................................................................... 47, 49 

42 U.S.C. § 7545(a) .................................................................................................................. 50 

42 U.S.C. § 7576 ...................................................................................................................... 83 

42 U.S.C. § 7576(e) .................................................................................................................. 54 

42 U.S.C. § 7602(g) .................................................................................................................. 40 

42 U.S.C. § 7602(h) ................................................................................................................ 59 

42 U.S.C. § 7602(j) .............................................................................................................. 9, 60 

42 U.S.C. § 7607(b) ................................................................................................................. 56 

42 U.S.C. § 7607(d)(7) ...................................................................................................... 20, 87 

42 U.S.C. § 7617(e) .................................................................................................................. 47 

42 U.S.C. §§ 7661-7661f (Title V) ........................................................................................... 9

42 U.S.C. § 7661(2) ............................................................................................................. 9, 60 

42 U.S.C. § 7661a..................................................................................................................... 10 

42 U.S.C. § 7661a(a) ................................................................................................................ 60 

42 U.S.C. § 7661a(b), (d) ........................................................................................................ 89 

42 U.S.C. § 7661b ............................................................................................................. 82, 89 

42 U.S.C. § 7661b(6)-(9) ......................................................................................................... 63 

42 U.S.C. § 7661b(c) ............................................................................................................... 82 

42 U.S.C. § 7661c(a) .................................................................................................................. 9 

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Energy Policy and Conservation Act, 49 U.S.C. § 32902 ................................................... 3 

49 U.S.C. § 32902(a) .................................................................................................................. 7 

49 U.S.C. § 32902(b)(1) ............................................................................................................ 7 

49 U.S.C. § 32902(c) .................................................................................................................. 7 

FEDERAL REGULATIONS

40 C.F.R. Pt. 50 .......................................................................................................................... 8 

40 C.F.R. § 51.166 .............................................................................................................. 9, 85 

40 C.F.R. § 51.166(a)(6) .......................................................................................................... 83 

40 C.F.R. § 51.166(a)(6)(i) ...................................................................................................... 85 

40 C.F.R. § 51.166(b)(12) ....................................................................................................... 72 

40 C.F.R. § 51.166(b)(49)(iv) ................................................................................................... 8 

40 C.F.R. § 52.21(a)(1) .............................................................................................................. 9 

40 C.F.R. § 52.21(b)(1), (b)(2), (b)(50)(iv), (j)(2)-(3) ........................................................... 15 

40 C.F.R. § 52.21(b)(12) .................................................................................................... 8, 72 

40 C.F.R. § 52.21(b)(50)(iv) ...................................................................................................... 8 

40 C.F.R. § 52.21(i)(2) ............................................................................................................. 51 

40 C.F.R. § 70.5(a)(1) .............................................................................................................. 82 

40 C.F.R. Pts. 70, 71 ................................................................................................................ 10 

40 C.F.R. Pt. 70, App. A ......................................................................................................... 10 

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STATE REGULATIONS 

Cal. Code Regs. Tit. 13, § 1961.1 .......................................................................................... 14

FEDERAL REGISTER 

45 Fed. Reg. 52,676 (Aug. 7, 1980) ................................................................... 49, 50, 53, 55 

67 Fed. Reg. 80,186 (Dec. 31, 2002) ..................................................................................... 84 

74 Fed. Reg. 24,007 (May 22, 2009) ..................................................................................... 12 

74 Fed. Reg. 32,744 (July 8, 2009) ........................................................................................ 13 

74 Fed. Reg. 18,886 (Aug 24, 2009) ......................................................................... 29, 38, 39 

74 Fed. Reg. 66,496 (Dec. 15, 2009) (Endangerment Finding) ............... 10, 11, 20-31, 34 

 36, 39, 40, 95, 96 

75 Fed. Reg. 17,004 (Apr. 2, 2010) (PSD Reconsideration) ............. 15, 47, 48, 55, 59, 60 

75 Fed. Reg. 25,324 (May 7, 2010) (Vehicle Rule) .............................. 12-14, 29, 42-47, 99 

75 Fed. Reg. 31,514 (June 3, 2010) (Tailoring Rule) ............. 11, 15-18, 46, 47, 50, 51, 60 

 62, 64, 73, 81, 85, 96, 97 

75 Fed. Reg. 49,556 (Aug. 13, 2010) ........................... 12, 20, 21, 30, 33, 34, 35, 37, 38, 39 

75 Fed. Reg. 53,882 (Sept. 2, 2010) (FIP Rule) ...................................................... 19, 76, 78 

75 Fed. Reg. 53,892 (Sept. 2, 2010) (SIP Call) .......................................... 19, 78, 79, 80, 87 

EXECUTIVE ORDERS 

Exec. Order No. 12,898 ......................................................................................................... 47 

Exec. Order No. 13,211 ......................................................................................................... 47 

LEGISLATIVE MATERIALS 

136 Cong. Rec. S2107 (Mar. 5, 1990) ................................................................................... 63 

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H.R. Rep. No. 95-294 (1977), reprinted in 1977 U.S.C.C.A.N. 1121 ............................. 26 

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GLOSSARY

PARTIES

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

Association of Manufacturers and 7 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 (“Texas Tailoring 

Mot.”) and another to stay three other EPA actions (“Texas Mot.”). EPA also 

refers herein to stay briefs filed as “Responses” to the Stay Motions by: 

Peabody Energy (“Peabody Resp.”); American Farm Bureau Federation (“Farm 

Bureau Resp.”); and Utility Air Regulatory Group (“UARG 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 (December 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) 

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Timing Decision: “Reconsideration of Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting Programs,” 75 Fed. Reg. 

17,004 (April 2, 2010) 

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

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

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 

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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) 

IPCC: United Nations Intergovernmental Panel on Climate Change

NAAQS: National Ambient Air Quality Standards 

NHTSA: National Highway Traffic Safety Administration 

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 

TITLE V: 42 U.S.C. §§ 7661-7661 

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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1 

 Movants seek to stay a regulatory process, and its statutory consequences, that 

Congress ordered in the Clean Air Act and that the Supreme Court set inexorably in 

motion in Massachusetts v. EPA, 549 U.S. 497 (2007). There, the Court held that 

greenhouse gases are “air pollutants” under the plain language of the Clean Air Act. 

Id. at 529. Per the Court’s express instruction, EPA’s Administrator was therefore 

required to determine whether, in her judgment, greenhouse gas emissions from new 

motor vehicles cause or contribute to air pollution that may reasonably be anticipated 

to endanger public health or welfare. Id. at 533. The Act obligates EPA to regulate 

such emissions from new motor vehicles if an “endangerment finding” is made. Id. 

Once motor vehicle regulations take effect, the express provisions of the Act 

automatically subject stationary sources of greenhouse gases to corresponding 

regulation under separate provisions of the statute. Thus, once an endangerment 

finding is made, this chain of consequences is unavoidable under the clear regime 

Congress created in the Clean Air Act. 

 EPA has taken four distinct actions related to greenhouse gases. The first two 

– EPA’s Endangerment Finding and its Vehicle Rule – are governed by section 

7521(a)1

 of the Act, which covers emissions of pollutants from new motor vehicles 

and new motor vehicle engines; these two actions flow directly from the Supreme 

Court’s directive in Massachusetts that EPA determine if endangerment results from 

greenhouse gases and from the statutory requirement that EPA regulate such 

 

1

 Statutory references are to Title 42 of the United States Code, unless noted. 

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2 

emissions if endangerment is found. Based on an exhaustive review and analysis of 

the science, in late 2009 the Administrator exercised her judgment to conclude that 

emissions of greenhouse gases from new motor vehicles contribute to air pollution 

that is reasonably anticipated to endanger public health and welfare, due to the effects 

of greenhouse gases on climate. This Endangerment Finding led directly to 

promulgation of the Vehicle Rule, in which EPA set standards for the emission of 

greenhouse gases for new motor vehicles built for model years 2012-2016. By statute, 

those emissions standards are set after considering two factors: the time necessary to 

develop and apply the requisite technology to meet the standard, and the cost to the 

automobile industry of complying within the set time period. § 7521(a)(2). The 

indirect effects of such regulation – such as the “triggering effect” such regulations may 

have with respect to stationary source permitting requirements under the Act – do not 

alter EPA’s statutory obligation to decide endangerment and to issue the standards if 

endangerment is found. 

The other two EPA actions – EPA’s Timing Decision and its Tailoring Rule – 

are governed by sections 7470-7492 and by Title V of the Act, which establish the two 

principal CAA permitting programs for stationary sources: the prevention-ofsignificant-deterioration (“PSD”) preconstruction permit program, and the Title V 

operating permit program. Unlike the Endangerment Finding and the Vehicle Rule, 

these two actions do not flow directly from the Supreme Court’s instruction in 

Massachusetts. Rather, they reflect EPA’s efforts to define and cabin the timing and 

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3 

breadth of stationary source regulation that would otherwise automatically ensue, 

purely by operation of statute, once greenhouse gases become subject to regulation 

under the Act through any means. Both are palliative actions: they reduce the 

regulatory burdens on stationary sources and permitting authorities by delaying the date 

on which sources will be subject to the Act’s permitting requirements and by limiting, 

at least for a time, the number and size of the sources that must obtain permits. 

Movants vehemently oppose any regulation of greenhouse gas emissions from 

stationary sources under the Act, fearing the possibility that even some stationary 

sources will be required to address greenhouse gas emissions in construction and 

operating permits. Thus, they flail variously at EPA’s four actions in an attempt to 

halt that which is imposed by operation of statute. But their efforts are for naught: 

their objection, at bottom, is not really to EPA’s actions; rather, it is to the decisions 

Congress made and to the strict requirements Congress itself imposed on sources of 

air pollution. 

These limits are plain and significant. For instance, while the Supreme Court 

recognized in Massachusetts that the Administrator ultimately must exercise her 

judgment in determining whether endangerment exists, and that this entails discretion, 

her reasons for exercising her judgment “must conform to the authorizing statute.” 

549 U.S. at 533. Thus, in determining whether atmospheric concentrations of 

greenhouse gases may endanger public health or welfare, the Administrator must rest 

her decision on the science and facts. Id. at 533-34. “Policy judgments” – such as 

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4 

those Movants raise in their Stay Motions regarding the difficulty, inconvenience, or 

cost of stationary source permitting – “have nothing to do with whether greenhouse 

gas emissions contribute to climate change.” Id. Thus, they may not be considered. 

Similarly, while EPA may have some “latitude as to the manner, timing, content, and 

coordination” of its motor vehicle regulations if endangerment is found, id., the 

statute does not permit EPA to decline to issue standards under section 7521 on the 

grounds that such regulation would implicate stationary source permitting. 

EPA’s discretion with respect to stationary source permitting is similarly limited 

by Congress’ express direction. Under section 7475, once a pollutant is subject to 

regulation under the Act, that pollutant must be addressed in PSD permits. EPA’s 

discretion is limited to determining when a pollutant should be considered “subject to 

regulation” under the Act. Thus, in the Timing Decision, EPA had discretion to 

decide that greenhouse gases would be “subject to regulation” when the Vehicle Rule 

begins to apply to new vehicles (on January 2, 2011). But EPA had no discretion to 

decide that section 7475 does not apply at all to stationary sources’ greenhouse gas 

emissions. Similarly, while EPA in its Tailoring Rule raised the numerical thresholds 

that would trigger permitting requirements under section 7475 (and similar provisions 

under Title V) for greenhouse gases, it raised them only as much as necessary, and only as 

long as necessary, to avoid an absurd result – permit gridlock as a result of overwhelmed 

permitting authorities – and for reasons of administrative necessity. EPA lacked 

discretion to raise those thresholds any more than absolutely necessary to effectuate 

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congressional intent, and it certainly lacked discretion after promulgating the Vehicle 

Rule to decline to regulate greenhouse gases under the PSD program. 

Movants cast a wide net in their arguments. They ignore a well-settled principle 

of administrative law – that every agency action is to be measured against the statutory 

provisions applicable to it and reviewed on the basis of its own record – and attack 

EPA’s Endangerment Finding, Vehicle Rule, Timing Decision, and Tailoring Rule as 

if they were a single, monolithic agency action, rather than four unique actions 

addressing separate and distinct statutory requirements.2

 They attempt as well to 

relitigate the fundamental issue that the Supreme Court resolved in Massachusetts: 

whether greenhouse gases can be regulated at all under the Clean Air Act. In their 

zeal to challenge any possible underpinning of EPA’s actions, Movants even seek to 

stay the Tailoring Rule – a rule intended to alleviate, for literally millions of stationary 

sources, the very regulatory burdens Movants abhor. Regarding the relief they seek, 

one group of Movants takes an extraordinary tack: they concede that the 

Endangerment Finding and the Vehicle Rule should not be stayed, but ask that the 

Court stay the Vehicle Rule’s “triggering effect” for stationary source regulation. 

NAM Mot. 12. In short, they essentially seek to stay the Clean Air Act itself. 

The Court, however, cannot stay the Clean Air Act, and Movants cannot meet 

the high standards for issuance of a stay of any of EPA’s actions pending review. 

 

2 EPA maintains that the distinct EPA actions are best adjudicated by separate 

panels and opposes coordination of all four actions, as set forth in EPA’s crossmotion for partial consolidation. See Dkt. 1265175. 

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Movants cannot establish any – let alone all – of the elements required for issuance of 

a stay: that movants are likely to succeed on the merits; that they will be irreparably 

harmed absent a stay; that a stay would redress the harms of which they complain; and 

that these factors clearly outweigh the substantial harms to others and to the public 

interest that will occur if a stay is issued. The Motions for Stay should be denied. 

BACKGROUND

I. Statutory Background

 A. Statutory Provisions Related to Vehicles 

 Title II of the CAA, §§ 7521-7590, establishes a regulatory framework for 

controlling pollution from motor vehicles and other mobile sources. Under section 

7521(a)(1), EPA “shall” prescribe regulations establishing standards for “the emission 

of any air pollutant from any class or classes of new motor vehicles or new motor 

vehicle engines, which in [EPA’s] judgment cause, or contribute to, air pollution 

which may reasonably be anticipated to endanger public health or welfare.” Once 

EPA makes such an “endangerment finding,” the Act requires EPA to issue 

corresponding emission standards, taking into account specified technological and 

cost considerations. § 7521(a)(2). Standards promulgated under section 7521(a) take 

effect only “after such period as the Administrator finds necessary to permit the 

development and application of the requisite technology, giving appropriate 

consideration to the cost of compliance within such period.” Id. States are 

preempted from adopting their own new motor vehicle standards, § 7543(a), but EPA 

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may waive preemption for California standards that are, in the aggregate, at least as 

protective as federal standards and otherwise consistent with the CAA. § 7543(b) 

Other States may adopt California standards for which a waiver has been granted. § 

7507. 

 Separately, the Energy Policy and Conservation Act (“EPCA”) directs the 

Secretary of Transportation to prescribe corporate average fuel economy standards 

for specified categories of vehicles. 49 U.S.C. § 32902(b)(1). The Secretary has 

delegated that authority to NHTSA. CAFE standards “shall be the maximum feasible 

average fuel economy level that the Secretary decides the manufacturers can achieve 

in [a] model year.” 49 U.S.C. § 32902(a). 

 B. Clean Air Act Provisions Related to Stationary Sources

 1. The PSD Program

 The purpose of the prevention of significant deterioration program, adopted in 

1977, is “to protect public health and welfare from any actual or potential adverse 

effect which in the Administrator’s judgment may reasonably be anticipate[d] to occur 

from air pollution ... notwithstanding attainment and maintenance of all national 

ambient air quality standards.” § 7470(1).3

 Under PSD, a “major emitting facility” 

 

3

 One of EPA's responsibilities under the Act is to promulgate national ambient 

air quality standards, or “NAAQS,” for certain air pollutants that may endanger public 

health or welfare. §§ 7408-7409; Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 462 

(2001). EPA has established NAAQS for six pollutants: nitrogen dioxide, ozone, 

sulfur dioxide, coarse and fine particulate matter, carbon monoxide, and lead. §§ 

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may not initiate construction or major modifications of its facility without first 

obtaining a construction permit. §§ 7475(a)(1), 7479(1)&(2)(C). The Act defines a 

“major emitting facility” as a stationary source that emits or has the potential to emit 

100 or 250 tons per year (“tpy”) (depending on the type of source) of “any air 

pollutant.” § 7479(1).4

 A modification of an existing major emitting facility is defined 

as a physical change or change in the method of operation that results in an increase 

in the amount of “any air pollutant” emitted by that source. §§ 7479(2)(C), 7411(a)(4). 

 To receive a PSD permit, an applicant seeking to construct or make a 

modification to a major emitting facility must implement “best available control 

technology [‘BACT’] for each pollutant subject to regulation under [the Act].” § 

7475(a)(4). In pertinent part, the Act defines BACT as: 

[A]n emission limitation based on the maximum degree of reduction of 

each pollutant subject to regulation under this chapter [the CAA] 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 through application of production processes 

and available methods, systems, and techniques ... for control of each 

such pollutant. 

§ 7479(3) (emphasis added). See also 40 C.F.R. § 52.21(b)(12). 

 

7408, 7409; 40 C.F.R. Pt. 50. Areas that do not meet the NAAQS for a particular 

pollutant are designated “nonattainment areas.” 

4

 See also 40 C.F.R. § 52.21(b)(50)(iv) (explaining that the PSD permit 

requirement is triggered by emissions of a “Regulated NSR Pollutant,” including 

“[a]ny pollutant that otherwise is subject to regulation under the Act.”); 40 C.F.R. § 

51.166(b)(49)(iv) (applying PSD to “[a]ny pollutant that is otherwise subject to 

regulation under the Act.”). 

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 2. Title V of the Clean Air Act

 Title V of the Act, §§ 7661-7661f, establishes an operating permit program 

covering stationary sources of air pollutants. It applies to, among others, any “major 

source” within the meaning of section 7661(2), including stationary sources that emit 

or have the potential to emit 100 tpy or more of “any air pollutant.” § 7602(j). Unlike 

PSD, Title V does not impose substantive pollution control requirements. Instead, 

Title V operating permits assure compliance with emissions limits and other 

applicable requirements of the CAA. § 7661c(a). 

 3. Implementation of CAA Requirements for Stationary Sources 

While Congress and EPA establish the standards to be achieved in the PSD 

program, the States predominantly manage the program to achieve these standards 

through state implementation plans (“SIPs”). See §§ 7410, 7471; 40 C.F.R. § 51.166 

(criteria for EPA approval of a state PSD program). A SIP is a set of statepromulgated (and EPA-approved) regulations that provides for implementation and 

enforcement of emissions standards under the various CAA programs administered 

by EPA. The standards set by States may be no less stringent than the CAA and 

EPA’s implementing regulations. § 7410(k)(1)(A). In the event a State is unable or 

unwilling to design its program to obtain EPA approval of its SIP, EPA will issue 

federal regulations in the form of a Federal Implementation Plan (“FIP”) that will 

apply within that State until a SIP is approved. § 7410(c); 40 C.F.R. § 52.21(a)(1). 

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EPA can instruct a State to revise its SIP where it is inadequate to meet the 

requirements of the CAA (commonly referred to as a “SIP Call”). See § 7410(k)(5). 

 Similar to SIPs, each State has its own approved Title V program, listed at 40 

C.F.R. part 70, App. A. Title V sets out the minimum requirements for a Title V 

permit program and for permits, requires States to develop programs in accordance 

with those requirements, and authorizes EPA to promulgate, administer and enforce a 

federal Title V program in various circumstances, including where a State does not 

have an EPA-approved program. § 7661a; 40 C.F.R. parts 70, 71. 

II. EPA Rules and Actions Challenged and Implicated in This Action

 A. The Endangerment Finding and the Denial of Reconsideration of 

 the Endangerment Finding – Challenged in Case No. 09-1322

 

 In 1999, EPA received a request that it regulate new motor vehicles, pursuant 

to section 7521(a), because greenhouse gas emissions from motor vehicles 

contributed to air pollution which may reasonably be anticipated to endanger public 

health or welfare. EPA denied that request in 2003, resulting in the Supreme Court’s 

decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which that Court concluded 

that greenhouse gases are “air pollutants” within the meaning of the Act and directed 

EPA to make an endangerment determination or explain why it could not do so. 

Acting in accordance with the Supreme Court’s instructions, EPA published 

the Endangerment Finding on December 15, 2009. 74 Fed. Reg. 66,496. EPA began 

by defining the “air pollution” referenced in section § 7521(a) to be the atmospheric 

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mix of six long-lived and directly-emitted greenhouse gases: carbon dioxide (CO2), 

methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons 

(PFCs), and sulfur hexafluoride (SF6). Id. at 66,497, 66,516-22.5

 EPA then found that 

this air pollution may, in fact, be “reasonably be anticipated both to endanger public 

health and to endanger public welfare.” Id. at 66,497, 66,523-36. 

 The Administrator then made findings pertaining to the “cause or contribute” 

criterion in section 7521(a). EPA defined the relevant “air pollutant” as “the 

aggregate group of the same six long-lived and directly-emitted greenhouse 

gases ....” 74 Fed. Reg. at 66,536. See also id. at 66,499. EPA then found that 

emissions of this “air pollutant” from new motor vehicles and new motor vehicle 

engines “contribute” to the “air pollution” for which the endangerment finding was 

made. Id. at 66,499, 66,537-45. 

 Subsequently, EPA received ten petitions seeking administrative 

reconsideration of the Endangerment Finding. Generally speaking, these petitions 

challenged the scientific basis underlying the Endangerment Finding, largely based on 

the content of certain e-mail communications among various climate scientists, 

alleged errors on the part of the United Nations Intergovernmental Panel on Climate 

 

5 These gases have different heat-trapping capacities and atmospheric lifetimes 

and thus are measured under the pollutant denominated as “greenhouse gases” based 

on their global warming potential (“GWP”), which is measured in carbon dioxide 

equivalents (“CO2e”). 75 Fed. Reg. at 31,519. For example, one ton of carbon 

dioxide equals one ton of CO2e; one ton of methane equals 21 tons of CO2e; and one 

ton of sulfur hexafluoride equals 23,900 tons of CO2e.

 Id.

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Change, and certain additional technical studies that the petitioners believed to be 

pertinent. On July 29, 2010, EPA denied the petitions, fully explaining why the 

technical and science-related arguments presented by the petitioners did not warrant 

reconsideration. 75 Fed. Reg. 49,556, 49,557-58, 49,563-78, 49,584 (Aug. 13, 2010). 

 B. The Vehicle Rule – Challenged in Case No. 10-1092

 Because sections 7521(a)(1) & (2) require EPA to issue regulations for motor 

vehicles once it makes the specified endangerment and contribution findings, EPA 

issued greenhouse gas emission standards for cars and light trucks for model years 

2012-2016. 75 Fed. Reg. 25,324 (May 7, 2010). In accordance with a carefullydesigned federal policy,6

 the Vehicle Rule was promulgated as part of a joint 

rulemaking with NHTSA, which simultaneously promulgated CAFE standards for the 

same vehicles. EPA and NHTSA first developed a joint technical analysis of (among 

other things) available technologies and their costs and effectiveness. Id. at 25,348– 

96. Each agency then developed standards under its separate statutory authorities. 

 EPA’s Vehicle Rule requires each manufacturer to meet its own fleet-wide 

emission standard for cars, and separately, light trucks, based on the vehicles it 

chooses to produce each year. Id. at 25,405. Manufacturers may earn credits toward 

 

6

 In May 2009, the Administration announced a National Fuel Efficiency Policy 

(“the National Program”) with the goal of establishing consistent, harmonized, and 

streamlined federal and state requirements that would reduce greenhouse gas 

emissions and improve fuel economy for all light-duty vehicles sold in the United 

States, while allowing automakers to sell a single fleet of vehicles nationally. 75 Fed. 

Reg. 25,326/2; 74 Fed. Reg. 24,007 (May 22, 2009).

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meeting their fleet-wide standards by improving air conditioning systems to increase 

system efficiency and reduce hydrofluorocarbon refrigerant leakages. Id. at 25,424-31. 

The Rule also sets separate standards to cap tailpipe nitrous oxide and methane 

emissions. Id. at 25,421-24. 

EPA’s greenhouse gas emission standards are consistent with, but separate 

from, CAFE standards. EPA’s standards are projected to result in significantly greater

greenhouse gas emission reductions than the corresponding CAFE standard as a 

result of certain differences between the CAA and EPCA. For example, EPA’s 

standards encompass reductions in greenhouse gases that can be achieved by airconditioning system improvements, which NHTSA had no statutory authority to 

address. Id. at 25,342. Conversely, EPCA, unlike the CAA, allows a manufacturer to 

pay a fine in lieu of meeting CAFE standards. Id. at 25,342. The result is that 

projected CO2e emissions avoided under EPA’s standards, during the useful life of 

model year 2012-2016 vehicles, will be 962 metric million tons, whereas projected 

CO2 emissions avoided under the CAFE standards, during the same useful life, will be 

655 million metric tons. Thus, EPA standards are projected to result in 47 percent 

greater reductions. Id. at 25,636, Table IV.G.1-4, and 25,490, Table III.F.1-2. 

 In 2004, the State of California approved state greenhouse gas standards for 

new light-duty vehicles for model years 2009 through 2016. On June 30, 2009, EPA 

granted California’s request for a waiver of federal preemption for those standards 

under the CAA. 74 Fed. Reg. 32,744 (July 8, 2009). Thirteen States and the District 

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of Columbia, comprising approximately 40 percent of the U.S. light-duty vehicle 

market, have adopted California’s standards, as they are permitted to do by section 

7507. In accordance with the National Program, California revised its state program 

to make clear that compliance with the EPA Model Year 2012-2016 light-duty vehicle 

greenhouse gas standards is deemed to be compliance with California’s greenhouse 

gas standards. 75 Fed. Reg. at 25,327-28. Accordingly, so long as the Vehicle Rule 

remains effective, automakers will be able to meet California standards by complying 

with EPA’s standards. If EPA’s federal greenhouse gas program was no longer an 

alternative compliance option for meeting the California standards, automakers would 

instead have to comply with California standards (in both California and the other 

States that have adopted them), which are not aligned with the CAFE standards. 

Among the differences, California standards are absolute and uniform. They are not 

expressed as manufacturer-specific standards determined by a manufacturer’s choice 

of which vehicles to produce. Cal. Code Regs. Tit. 13, § 1961.1 (Ex. 1); 75 Fed. Reg. 

25,329. Thus, without an alternative compliance option, each auto manufacturer 

would be faced with the costly prospect of manufacturing at least two fleets of 

vehicles for domestic sale, one that meets both California standards and less stringent 

CAFE standards for sale in the States that have adopted California standards, and a 

separate fleet that just meets the CAFE standards for sale elsewhere. 75 Fed. Reg. at 

25,326. 

 C. The Timing Decision – Challenged in Case No. 10-1073

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 In 2008 EPA issued its “PSD Interpretive Memo,” also called the “Johnson 

Memo.” The PSD Interpretive Memo provided EPA’s interpretation of a pre-existing 

definition in its PSD regulations delineating the “pollutants” that are taken into 

account in determining whether a source must obtain a PSD permit and the 

pollutants each permit must control. EPA had previously defined the pollutants that 

must be taken into account for both of these purposes to include “[a]ny pollutant that 

otherwise is subject to regulation under the Act.” 40 C.F.R. § 52.21(b)(1), (b)(2), 

(b)(50)(iv), (j)(2)-(3). In the PSD Interpretive Memo, EPA explained that monitoring 

and reporting requirements under the Act were insufficient to make a pollutant 

“subject to regulation” and that a pollutant is not “regulated” unless it is covered by 

an EPA regulation that requires actual control of emissions. 

 In the 2010 Timing Decision, EPA reaffirmed this interpretation of the term 

“subject to regulation,” and refined its interpretation regarding exactly when 

“regulation” of a pollutant begins, for purposes of both PSD and Title V permits. 

EPA then concluded that the Vehicle Rule would require actual control of greenhouse 

gas emissions on January 2, 2011 – the first date on which model year 2012 cars 

subject to the greenhouse gas emission limitations in the Vehicle Rule may be 

introduced into commerce. Thus, greenhouse gas emissions would be “subject to 

regulation” for PSD and for Title V purposes on that date. 75 Fed. Reg. at 17,019/3, 

17,023. EPA subsequently codified this approach as part of the Tailoring Rule. 75 

Fed. Reg. at 31,606-07.

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 D. The Tailoring Rule – Challenged in Case No. 10-1131

 The purpose of the Tailoring Rule is to establish an effective administrative 

process by which PSD and Title V permit requirements for greenhouse gases can be 

phased in after January 2, 2011, once those requirements are triggered under the 

statute by the Vehicle Rule. EPA recognized that immediately implementing PSD and 

Title V permit requirements for all sources meeting the statutory thresholds of 

100/250 tpy for greenhouse gas emissions would “overwhelm [ ] the resources of 

permitting authorities and severely impair [ ] the functioning of the program [ ].” 75 

Fed. Reg. at 31,514.7

 Following consideration of extensive public comments, EPA 

adopted a series of steps by which PSD and Title V permit requirements could be 

phased in, starting with the largest sources of greenhouse gas emissions. 

 During Step I, which begins on January 2, 2011, no source will be subjected to 

PSD permitting solely by virtue of its greenhouse gas emissions. Instead, only a 

source that already requires a PSD permit by virtue of its potential to emit non-

 

7 For example, EPA estimated that without the Tailoring Rule, PSD permit 

applications would increase nationwide from 280 per year to over 81,000, a 300-fold 

increase, requiring state permitting authorities to add almost 10,000 full-time 

employees and incur additional costs of $1.5 billion per year. Id. at 31,535-40, 31,554. 

EPA’s analysis further showed that Title V permit applications would jump from 

14,700 per year to 6.1 million as a result of application of Title V to greenhouse gases, 

a 400-fold increase. When EPA assumed just a 40-fold increase in applications – onetenth of the actual increase – and no increase in employees to process them, the 

processing time for Title V permits would jump from 6-10 months to ten years. 

Hiring the nearly 230,000 full-time employees necessary to address the actual increase 

in permitting functions would result in an increase in Title V administration costs of 

$21 billion per year. Id. at 31,535-40, 31,577. 

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greenhouse gases covered by the PSD program must address its greenhouse gas 

emissions, and even then only if its new construction or modification project will have 

the potential to emit 75,000 tpy on a carbon-dioxide-equivalent (CO2e) basis of net 

greenhouse gases. 75 Fed. Reg. 31,523-24. Greenhouse gas emissions are not 

considered in determining whether a source needs to obtain a PSD permit until Step 

II, which begins on July 1, 2011. After this date, a source will be subject to PSD 

permitting requirements if: (a) it meets the standards established in Step I (a so-called 

“anyway” source); or (b) the source has the potential to emit the statutory thresholds 

of greenhouse gases (100/250 tpy) on a mass basis and also has the potential to emit 

100,000 tpy on a CO2e basis (or 75,000 net tpy CO2e for a modification project). Id. 

Similar thresholds apply under Title V. Id. The Tailoring Rule also lays out a specific 

process for considering further reductions in these thresholds (and consequent 

expansion of the permit program), as determined to be appropriate following 

additional study and consideration of the implementation of Steps I and II during the 

initial years of the program. See id. at 31,525, 31,586-88. 

 These phased measures will alleviate the administrative burden on state 

permitting authorities (and greatly reduce the costs to both permitting authorities and

sources), while having comparatively little impact on the volume of greenhouse gas 

emissions subjected to regulation under the programs. For example, even at Step II, 

only about 550 additional sources will require PSD or Title V permits due solely to 

their emissions of greenhouse gases. Id. at 31,540. At the same time, however, the 

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Step II requirements will still reach fully 86% of the greenhouse gas emissions that 

would be covered using the statutory 100/250 tpy thresholds. Id. at 31,571. Thus, 

the Tailoring Rule will assure that the lion’s share of the environmental benefits of full 

statutory implementation are secured, while preserving the integrity of the permit 

system and saving billions of dollars in administrative and compliance costs.8

 This tailoring of the statutory thresholds is effectuated through EPA’s revision 

of the definition “subject to regulation” in a way that limits the reach of the terms 

“major source,” “major emitting facility,” and “major modification” in EPA’s PSD 

and Title V regulations. Id. at 31,580-81. Because PSD is administered through SIPs 

or a FIP, implementation plans may need to be amended to apply the revised 

definitions established in the Tailoring Rule, as may state programs under Title V. 

 E. Proposed Implementation Process

 Recognizing that the provisions of certain States’ SIPs might not allow them to 

automatically apply these revised definitions without amending their SIP, EPA has 

issued two proposed rules which ensure that if a given State is not in a position to 

implement the permitting requirements for greenhouse gases by January 2, 2011, EPA

can perform that task for that State, until the State is able to revise its SIP. 

 

8

 EPA estimated that application of the Step II thresholds would result in 

combined increased permitting costs to all state authorities of about $105 million per 

year, as compared to combined permitting costs of $22.5 billion per year when 

applying the statutory threshold. 75 Fed. Reg. at 31,540. The Step II measures will 

also relieve permit applicants (the stationary sources themselves) of nearly $50 billion 

per year in Title V compliance permitting costs under the tailored thresholds and 

another $5.5 billion under the PSD program. Id. at 31,597-99.

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Specifically, on September 2, 2010, EPA issued a proposed “SIP Call” to 13 States to 

amend their SIPs to ensure that their PSD programs cover greenhouse gases and do 

so at the levels established in the Tailoring Rule. 75 Fed. Reg. 53,892. Also on 

September 2, 2010, EPA issued its Proposed FIP Rule. 75 Fed. Reg. 53,883 Under 

this Rule, if any State is unable to – or refuses to – amend its SIP, EPA will, as required

under section 7410(c), issue a FIP for that State under which “EPA will be 

responsible for acting on permit applications for only the GHG portion of the permit, and 

the State will retain responsibility for the rest of the permit.” Id. at 53,890 (emphasis 

added). EPA is taking similar steps to ensure that state Title V permitting programs 

are able to permit greenhouse gas sources consistent with the thresholds of the 

Tailoring Rule.9

 

ARGUMENT

I. STANDARD FOR GRANTING A STAY 

A stay is an “extraordinary and drastic remedy, one that should not be granted 

unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997). In order to grant such extraordinary relief, the 

Court must determine: 

(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 

 

9

 All of these proposed rules and contemplated procedures are intended to 

alleviate the concerns of permitting authorities. They are, however, not final and, 

therefore, not challenged in any petition for review. Despite this, Movants attack both 

their effectiveness and validity here. See Part II,B,2, infra.

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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 v. Holder, 129 S. Ct. 1749, 1761 (2009) (citation omitted). 

Here, Movants seek to stay four separate and independent agency actions. 

Though some Movants attempt to stay all EPA actions based on alleged flaws in 

some, the standard under which agency actions are reviewed remains individualized: 

each must be reviewed based on its own administrative record and based on the 

statutory factors applicable to that action. See CAA § 7607(d)(7); Nat’l Ass’n of 

Homebuilders v. Corps of Eng’rs, 417 F.3d 1272, 1282 (D.C. Cir. 2005) (“on APA 

review, [Corps’ permitting] action necessarily stands or falls on that administrative 

record and its statutory permitting authority under the CWA”). 

II. MOVANTS FAIL TO MAKE THE REQUIRED STRONG SHOWING 

THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS

 A. Movants Are Not Likely to Establish that the Endangerment Finding 

Should be Deemed Invalid

In the Endangerment Finding, the Administrator determined that greenhouse 

gases in the atmosphere may reasonably be anticipated to endanger public health and 

welfare. 74 Fed. Reg. at 66,497/2. A wealth of scientific information “compellingly 

supports” this finding. Id. That greenhouse gases slow the loss of Earth’s heat is a 

“basic scientific fact,” over which there is no dispute. See 75 Fed. Reg. at 49,564/1-2. 

Nor is there any real dispute that atmospheric greenhouse gas levels are increasing, 

that this increase is driven largely by human activity, and that increased greenhouse 

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21 

gases in the atmosphere have an effect known as “radiative forcing.” Id. at 49,564/2-

65/1; see also Massachusetts, 549 U.S. at 504 (noting that “well-documented” increase 

in global temperatures has coincided with a significant increase in the concentration of 

carbon dioxide in the atmosphere).10 Multiple lines of evidence indicate that average 

temperatures are increasing, climate change is occurring, and greenhouse gases are the 

primary driver of that change. 74 Fed. Reg. at 66,517/2-18/3; 75 Fed. Reg. at 

49,564/1-67/1. The Administrator evaluated this evidence and determined that both 

current and projected impacts of climate change may reasonably be anticipated to 

endanger public health and welfare. 74 Fed. Reg. at 66,524/3-26/2, 66,530/3-35/3. 

In making the Endangerment Finding, the Administrator “[gave] careful 

consideration to all of the scientific and technical information in the record.” 74 Fed. 

Reg. at 66,510/3. She relied primarily on thorough assessments of climate change 

science prepared by the Intergovernmental Panel on Climate Change, the United 

States Global Change Research Program, and the National Research Council, as the 

scientific and technical basis for the Endangerment Finding. Id. As EPA explained, 

these assessments: (1) comprehensively address the scientific issues the Administrator 

had to examine; (2) represent the current state of knowledge on those issues; and (3) 

underwent “rigorous and exacting...peer review by the expert community, as well as 

 

10 “Radiative forcing” refers to a change in the energy balance of the planet, and 

is not the same thing as climate change. 75 Fed. Reg. at 49,565/1. 

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rigorous levels of U.S. government review and acceptance.” Id. at 66,510/3-11/1.11 

This review process offered EPA “strong assurance” that the underlying research 

material “has been well vetted by both the climate change research community and by 

the U.S. government,” and that these assessments “essentially represent the U.S. 

government’s view of the state of knowledge on greenhouse gases and climate 

change.” Id. at 66,511/1; see also RTC 1-14 (Ex. 2) (discussing IPCC development 

process). 

 Movants nibble at the edges of the Endangerment Finding and the science on 

which it is based, flyspecking isolated purported deficiencies that, Movants contend, 

render that Finding unsupportable. These weak attacks cannot stand against the vast 

body of record evidence supporting the Administrator’s conclusions. Movants have 

thus failed to demonstrate that they are likely to succeed on the merits of their 

challenge to the Endangerment Finding. 

 1. EPA Properly Construed and Applied the Legal Framework for the 

 Endangerment Finding

Section 7521(a)(1) directs EPA to determine whether the “air pollution” in 

question – the concentration of six well-mixed greenhouse gases in the atmosphere – 

 

11 Movants argue that EPA was not entitled to rely on these assessments because 

they allegedly were not crafted using “the same rules of decision that govern valid 

rulemaking in this country.” CRR Mot. 27; see generally id. at 26-27; Texas Mot. 15. 

Neither the IPCC nor any other body on whose assessment the Administrator relied 

made any decisions concerning the Endangerment Finding. It is EPA’s job as the 

decisionmaker, not that of the IPCC or any other independent body, to follow 

applicable “rules of decision” – and EPA did so. 

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“may reasonably be anticipated to endanger public health or welfare.” If EPA 

answers this question in the affirmative, then the Administrator’s task is to determine 

whether or not emissions of an “air pollutant” – here, the aggregate group of these 

same six greenhouse gases – from new motor vehicles or engines “in [her] judgment 

cause, or contribute to” this “air pollution.” Id. The Act calls for the Administrator 

to make an endangerment finding when, in her judgment, she reasonably determines 

the statutory criteria are met, even if there are “varying degrees of uncertainty” in 

some of the underlying scientific and technical issues. See 74 Fed. Reg. at 66,505-06; 

see also Massachusetts, 549 U.S. at 533-34. 

 Movants’ legal argument focuses largely on the first part of this standard, i.e., 

whether greenhouse gases “may reasonably be anticipated to endanger public health 

or welfare.” Purporting to rely principally on this Court’s seminal decision in Ethyl 

Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (en banc), Movants argue that to address 

this issue, EPA first must quantitatively define specific risk factors Movants believe to 

be determinative of the endangerment question.12 They then argue that EPA may 

only find that an endangerment exists if the Agency analyzes the extent to which “car 

emissions contribute anything meaningful to the present level of GHGs in the 

atmosphere.” CRR Mot. 31; see also Texas Mot. 10-11. 

 

12 See CRR Mot. 30: “What levels of temperature, precipitation, or wind 

‘endanger,’ and why? What is a ‘safe’ global temperature? Based on what criteria, for 

what populations, in what locations? What is a ‘safe’ ambient concentration of 

GHGs? Why? Most fundamentally, what level of GHG yields acceptable climate 

conditions?” See also id. at 31. 

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 Movants’ argument not only conflicts with the action-forcing instruction from 

the Supreme Court in Massachusetts,

13 but also stands Ethyl completely on its head, 

as the very point of Ethyl was to reject a similar attempt to throw up a string of 

empirical hurdles for EPA to clear before making an endangerment finding. In 

essence, Movants argue that the statute requires a type of definitive factual finding – 

rather than an informed exercise of judgment – regarding endangerment, but this very 

argument has already been rejected by this Court. Ethyl, 541 F.2d at 20-29. As EPA 

recognized, Ethyl emphasized that endangerment determinations in CAA provisions 

like this are properly regarded as “precautionary” in nature. 74 Fed. Reg. at 66,506-07. 

As such, “[r]egulatory action may be taken before the threatened harm occurs; indeed, 

the very existence of such precautionary legislation would seem to demand that 

regulatory action precede, and, optimally, prevent, the perceived threat.” Ethyl, 541 

F.2d at 13. The Court thus stressed that in reviewing the Administrator’s 

endangerment determination “we will not demand rigorous step-by-step proof of 

cause and effect” (as petitioners in that case advocated). Id. at 28. Instead, the Court 

will uphold the determination as long as it is “rationally justified.” Id. 

 

13 In Massachusetts, the Supreme Court made clear that EPA cannot decline to 

make an endangerment finding merely because there is “some residual uncertainty;” 

only uncertainty that is “so profound that it precludes EPA from making a reasoned 

judgment as to whether greenhouse gases contribute to global warming” could justify 

such inaction. 549 U.S. at 534. Neither can the Administrator consider policy matters 

that “have nothing to do with” her exercise of judgment on the science of 

endangerment. Id. at 533-34. 

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 Movants’ argument that there can be no rational basis to find endangerment 

unless EPA first defines the circumstances that would constitute a lack of 

endangerment is inconsistent with Ethyl. The Court there was explicit: that 

endangerment is a fact-specific case-by-case determination, with no specific minimum 

threshold for either risk or severity of harm to show endangerment. Ethyl, 541 F.2d at 

18-20; see also 74 Fed. Reg. at 66,509. Instead, EPA is to judge both the likelihood of 

harm occurring and the severity of the harm if it were to occur, as varying 

combinations of risk and harm could all amount to endangerment. 541 F.2d at 18-20. 

Likewise here, EPA does not need to define the myriad possible combinations of risk 

of harm and severity of harm, covering the very wide range of climate and 

environmental circumstances involved, that would not constitute endangerment before 

it can make a fully rational judgment that the specific facts and circumstances here do

in fact amount to endangerment.14 

 As the Supreme Court noted in Massachusetts, Congress in the 1977 CAA 

amendments revised several “endangerment” provisions (including the provision at 

issue here) to replace the former “will endanger” language with the present “may 

reasonably be anticipated to endanger” language for the express purpose of embracing 

Ethyl’s precautionary, preventative approach and rejecting the type of empirical 

 

14 Cf. Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1161-62 (D.C. Cir. 1980) (In 

determining the ambient level of an air pollutant that is requisite to protect public 

health with an adequate margin of safety, under section 7409, EPA is not required to 

first define a protective ambient level and then determine a margin of safety from that 

point.). 

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burden of proof advocated by the petitioners in that case (and in this one). See

Massachusetts, 549 U.S. at 506 n.7 (“Congress amended [§ 7521(a)(1)] in 1977 to give 

its approval to the decision in [Ethyl, 541 F.2d at 25], which held that the Clean Air 

Act ‘and common sense . . . demand regulatory action to prevent harm, even if the 

regulator is less than certain that harm is otherwise inevitable.’”).15 In sum, EPA 

properly rejected the same arguments, advanced by Movants here, that the Agency is 

required to define what is not endangerment or is required to make specific, 

quantitative determinations of the risk of harm before making an endangerment 

finding, or, similarly, that the Agency must find that some defined minimum quantum 

of harm is likely to occur or actually occurring before it may find endangerment. 74 

Fed. Reg. at 66,508-09.16

 Similarly, there is no merit to Movants’ suggestion that EPA cannot make an 

endangerment finding under section 7521(a)(1) unless it can also show that the 

emission standards resulting from such a finding would “fruitfully attack[]” the risk of 

 

15 The House Committee Report accompanying the 1977 CAA Amendments, 

cited in Massachusetts, provides extensive discussion of Ethyl and Congress’ intent to 

endorse that decision by amending the Act’s various “endangerment” provisions. See

H.R. Rep. No. 95-294, at 43-51, reprinted in 1977 U.S.C.C.A.N. 1121-29. See also

Massachusetts v. EPA, 415 F.3d 50, 76-77 (D.C. Cir. 2005) (Tatel, J., dissenting) 

(discussing this same legislative history), rev’d, 549 U.S. 497 (2007). 

16 Movants cite Industrial Union Dept., AFL-CIO v. American Petroleum 

Institute, 448 U.S. 607 (1980), in support of their argument that EPA failed to provide 

an adequate record for review because it did not adequately explain its decision. See

CRR Mot. 35. But that case involved the rationality of the actual regulatory standard 

adopted by OSHA, not the type of threshold determination of risk and endangerment 

involved here. 

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harm that is the basis for the finding. See CRR Mot. 34 (citing Ethyl, 541 F.2d at 31 

n.62). This argument is based, almost entirely, on one misleading quote from one 

footnote in Ethyl. When this quote is read in proper context, and in conjunction with 

the governing statutory provisions here, it clearly refutes rather than supports Movants’ 

argument. See 74 Fed. Reg. at 66,507-08. In the portion of Ethyl cited by Movants, 

the Court was specifically addressing arguments that EPA’s endangerment finding 

should only have considered the incremental effects on public health of lead from fuel 

additives, not the cumulative effects of such lead combined with lead from other 

sources. The Court’s main point was that it believed the incremental approach 

advocated by petitioners there was inappropriate for gauging whether an 

endangerment was posed by lead-containing fuel additives.17 By contrast, the Court 

pointed out (in the text quoted by Movants) that the incremental effect of lead from 

fuel additives could be a relevant consideration in deciding what control requirements

might later be appropriate to address that endangerment under the provisions of 

section 7545 in place at that time.18 Thus, read in proper context, the snippet of text 

on which Movants rely simply states that while the efficacy of potential regulatory 

 

17 See Ethyl, 541 F.2d at 30-1 (stating that “Congress understood that the body 

lead burden is caused by multiple sources” and that “[i]t did not mean for ‘endanger’ 

to be measured only in incremental terms”). 

18 Ethyl, 541 F.2d at 3 n.62 (“While the incremental effect of lead emissions on 

the total body lead burden is of no practical value in determining whether health is 

endangered, it is of value, of course, in deciding whether the total lead exposure 

problem can fruitfully be attacked through control of additives.”); see also 74 Fed. 

Reg. at 66,508 (discussing this aspect of Ethyl).

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approaches may be relevant to the selection of control requirements under the CAA 

provision at issue in that case, it has no relevance to determining the threshold 

question of whether or not the air pollution endangers public health or welfare. 

 As EPA explained, under the provisions of the statute applicable here, 

Congress has separated the criteria governing the endangerment and contribution 

findings from the factors governing the establishment of corresponding emission 

standards. See 74 Fed. Reg. at 66,507. And as the Supreme Court made clear in 

Massachusetts, the endangerment and contribution criteria are limited to the 

determination of whether greenhouse gas concentrations in the atmosphere constitute 

“air pollution” that may reasonably be anticipated to endanger public health or 

welfare, and whether vehicle emissions cause or contribute to that air pollution. Id.

(citing Massachusetts, 549 U.S. at 532-34). Questions regarding the effectiveness of 

any particular set of control strategies that may be applied to new motor vehicles are 

simply “not relevant to deciding whether air pollution levels in the atmosphere 

endanger” or “whether emissions of greenhouse gases from new motor vehicles 

contribute to such air pollution.” 74 Fed. Reg. at 66,508.19

 

19 This separation between the endangerment determination and the setting of 

standards is reflected in other “endangerment” and standard-setting provisions in the 

Act, particularly those relevant to the establishment of NAAQS. The 

“endangerment” finding under section 7408(a)(1) can lead to the listing of an air 

pollutant, which leads to the development of “air quality criteria” under section 

7408(a)(2), and then to establishment of a NAAQS under section 7409 at the level 

that is “requisite” to protect public health and welfare (the former with an “adequate 

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 Moreover, even when EPA adopts corresponding emission standards, the 

statute does not require EPA to set such standards at a level that eliminates as much 

of the “endangerment” as possible, without consideration of other factors, and it does 

not spell out any minimum level of effectiveness for such standards in terms of 

alleviating the air pollution problem in question. Instead, the statute directs EPA to 

set emission standards at a level that is reasonable overall in light of applicable 

environmental, cost and technology considerations. § 7521(a)(2); see also 75 Fed. 

Reg. 25,324, 25,403-04 (May 7, 2010) (discussing application of these standards in 

establishing vehicle emissions standards for greenhouse gases). 

 Movants’ approach would not only conflict with the statutory design, but 

would also be unworkable in practice. In essence, it would require EPA, at the time 

of the endangerment finding, to project the result and effectiveness of “perhaps not 

one, but even several, future rulemakings stretching over perhaps a decade or 

decades.” 74 Fed. Reg. at 66,508. Contrary to Movants’ argument, there is nothing in 

the statute or applicable judicial precedent that supports, let alone compels, such an 

irrational and unwieldy approach.20

 

margin of safety”). EPA is not required to know the results of the subsequent 

NAAQS standard-setting to make the endangerment finding under section 7408(a)(1).

20 As noted, CRR faults EPA for not answering the question whether “car 

emissions contribute anything meaningful to the present level of GHGs in the 

atmosphere.” CRR Mot. at 31. EPA, however, made the only determination called 

for by Congress – whether such emissions from new motor vehicles cause or 

contribute to the air pollution that endangers. CRR does not contest EPA’s 

contribution determination.

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 2. EPA Exercised Its Own Judgment and Appropriately Relied on 

 Assessments Prepared by the IPCC and Other Bodies as the 

 Primary Scientific Basis for the Endangerment Finding

EPA did not in any way delegate its judgment by relying on the thorough 

assessments prepared by the IPCC, the USGCRP, and others as the primary scientific 

and technical basis for the Endangerment Finding. 74 Fed. Reg. at 66,510/2-12/1; 75 

Fed. Reg. at 49,581-82. In EPA’s view, these assessments were the best source 

materials for determining the state of science with regard to climate change. 74 Fed. 

Reg. at 66,511. The assessments synthesize a broad body of scientific studies, and 

ultimately demonstrate the broad scientific consensus on how greenhouse gases affect 

the climate, as well as the impact of present and projected future climate changes on 

human health, society, and the environment. 75 Fed. Reg. at 49,581/2. 

EPA did not simply rubber-stamp these assessments. RTP 3-2 (Ex. 3); 75 Fed. 

Reg. at 49,581/1-82/1. In fact, EPA evaluated the assessments and their conclusions 

in several ways: by reviewing the process employed to develop them, by reviewing 

their substantive content in light of in-house expertise, by taking into consideration 

the depth of scientific consensus the assessments represented, and by considering 

trends in the science. RTP 3-2 (Ex. 3). In addition, both EPA’s proposed 

conclusions on the state of the science and its rationale for relying primarily on these 

assessment reports underwent notice and comment. 74 Fed. Reg. at 18,886, 18,894 

(Aug. 24, 2009). A lengthy technical support document detailing the scientific basis 

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for the Endangerment Finding was twice subjected to public review, and was modified 

as warranted in response to comments. 74 Fed. Reg. 66,510/2-3. 

As this Court has stated frequently, an agency does not improperly delegate its 

authority or judgment merely by using work performed by outside parties as the 

factual basis for its decision making. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 

568 (D.C. Cir. 2004);21 United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1216-

17 (D.C. Cir. 1980). Consistent with these authorities, although the IPCC assessment 

and other scientific assessments compiled and reviewed by EPA provided the 

principal source materials for EPA’s action, EPA exercised its own judgment both 

regarding the state of the science and in finding endangerment based on this science.22 

In United Steelworkers, this Court rejected an argument that an agency had 

improperly relied on outside consultants where the petitioning party “[could not] 

buttress its general allegation of excessive reliance with any specific proof that the 

Assistant Secretary failed to confront personally the essential evidence and 

arguments” at issue. 647 F.2d at 1217. As the Court elaborated, “unsupported 

 

21 In U.S. Telecom Ass’n, the D.C. Circuit concluded that an agency had acted 

unlawfully by expressly sub-delegating its decision-making authority to state 

commissions. 359 F.3d at 565. Movants do not allege that EPA expressly delegated 

its Section 7521 (a) authority, nor did EPA do so. 

22 See, e.g., 74 Fed. Reg. at 66,497/2 (“The Administrator has determined” that 

the body of scientific evidence compellingly supports an endangerment finding; major 

assessments by USGCRP, IPCC, and others “serve as the primary scientific basis 

supporting the Administrator’s endangerment finding”); see generally id. at 66,497/2-

99/2; RTP 3-2 (Ex. 3) (describing numerous “actions taken that evidence EPA’s 

comprehensive and in-depth exercise of judgment”).

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allegation[s]” could not “overcome the presumption that agency officials and those 

who assist them have acted properly.” Id. Movants’ conclusory assertion that the 

Administrator did not exercise her own judgment, see, e.g. CRR Mot. 24-26, Texas 

Mot. 12-15, is not only “unsupported” by “specific proof,” but it is directly 

contradicted by the record. Neither do Movants cite any legal authorities to support 

their argument that an independent exercise of judgment required EPA to re-examine 

the thousands of studies reviewed, analyzed, and synthesized by the IPCC, the 

USGCRP, and others (see CRR Mot. 25; Texas Mot. 12) – in other words, to expend 

vast resources re-doing work already done by highly-qualified bodies, carefully 

reviewed by EPA, and subjected to public comment. 

Movants’ contention that EPA erred in relying on assessment reports without 

placing the underlying studies in the administrative record is equally meritless. See

Texas Mot. 17; CRR Mot. 29. This Court has flatly rejected this argument in prior 

cases under the Act. See Coalition of Battery Recyclers Ass’n v. EPA, 604 F.3d 613, 

622-23 (D.C. Cir. 2010); American Trucking Ass’ns v. EPA, 283 F.3d 355, 372 (D.C. 

Cir. 2002) (“requiring agencies to obtain and publicize the data underlying all studies 

on which they rely ‘would be impractical and unnecessary’”)(citation omitted). 

 3. “Climategate” does not undercut the reliability of the IPCC Report

Trying to shore up their allegation that EPA erroneously relied on the IPCC 

assessment reports, Movants point to alleged deficiencies in the IPCC’s assessment of 

climate change science and the so-called “Climategate” e-mails. CRR Mot. 27-29; 

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Texas Mot. 16-17. Movants have not, however, demonstrated that minor and isolated 

errors undermine the weight of scientific authority on which the Administrator relied 

in making the Endangerment Finding. See supra at 20-22; see generally 75 Fed. Reg. 

at 49,557/1-58/2 (reviewing “Climategate” allegations and concluding that the 

scientific findings underlying the Endangerment Finding remain “robust, credible, and 

appropriately characterized by EPA”). 

Movants point first to an acknowledged misstatement concerning the projected 

rate at which Himalayan glaciers are receding.23 CRR Mot. 27; Texas Mot. 16 n.2. As 

EPA explained when this issue was raised in the petitions for reconsideration, this 

particular statement was one error in one study out of a multi-volume assessment 

containing thousands of pages of findings and conclusions. RTP 2-2 (Ex. 4); see also

75 Fed. Reg. at 49,558/1, 49,576/2-77/1.24 More importantly, EPA did not rely on 

this projection in the Endangerment Finding. Id. An isolated error concerning the 

projected rate of recession in Himalayan glaciers does not undermine the overall 

climate change findings, nor does it have any meaningful implication for the 

Administrator’s determination that elevated atmospheric concentrations of 

 

23 CRR erroneously claims that flaws in the IPCC assessment process led India to 

withdraw from the IPCC. CRR Mot. 27. CRR cites a comment submitted with a 

petition for reconsideration, in response to which EPA demonstrated that petitioners 

had mischaracterized the quoted Indian official’s position. RTP 2-23 (Ex. 4); see 

generally 75 Fed. Reg. at 49,578/1-79/2. 

24 Even then, the error went only to the projected rate at which Himalayan glaciers 

are receding, not to the fact that they are receding. See RTP 2-2 (Ex. 4). 

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greenhouse gases may reasonably be anticipated to endanger public health and welfare 

in the United States. Id. at 49,558/1-2; 74 Fed. Reg. 66,514. 

 CRR also cites a single e-mail from Dr. Phil Jones, a co-author of some IPCC 

assessment reports, as purported evidence that “IPCC’s assessment of climate science 

was neither transparent nor objective.” CRR Mot. 28. The full e-mail demonstrates 

only that Dr. Jones personally disapproved of the quality of certain studies (which 

were, in any event, ultimately included in the IPCC assessment). RTP 2-27 (Ex. 4). 

EPA’s conclusion that this isolated incident does not undermine the validity of the 

IPCC’s assessment is similar to that reached separately by the Independent Climate 

Change E-Mails Review Investigation.25 Id. at 58. 

 Texas points to the August 30, 2010 InterAcademy Council’s independent 

report to the United Nations as supposedly identifying significant flaws in the IPCC 

review process. Texas Mot. 15-17. The Council’s Report postdates even EPA’s 

decision on the petitions for reconsideration, and thus it cannot be part of the 

administrative record or a basis for review in this matter. To the extent that the Court 

deems the report relevant, however, it is important to note that while the Council 

drew no conclusions about the scientific validity of the IPCC assessment reports, it 

recognized that “many scientists noted that neither the leaked e-mails nor the IPCC 

 

25 This Review was called for by the University of East Anglia following the 

publication of e-mails from that University’s Climatic Research Unit. Although 

funded by the University, the Review’s work and findings are wholly independent. 

See http://www.cce-review.org/About.php (last visited October 26, 2010).

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errors undermined the principal scientific findings regarding human contributions to 

climate change.” IAC 7-8 (Ex. 5).26 With regard to the IPCC assessment process, the 

Council concluded that while there was room for improvement, the existing process 

“has been successful overall and has served society well.” IAC 51 (Ex. 5). Movants 

have, in sum, failed to demonstrate that a bare handful of insignificant, isolated errors 

in the exhaustive IPCC assessment delegitimize the vast bulk of the scientific 

statements and findings contained in that and other assessments, or rendered EPA’s 

decision to rely on those assessments unreasonable, arbitrary or capricious. See 75 

Fed. Reg. at 49,558/1-2; Coalition of Battery Recyclers, 604 F.3d at 623-24. 

 4. The Record Supports EPA’s Scientific Conclusions

There is no real dispute over most of the scientific underpinnings of the 

Endangerment Finding. See supra at 20-21. CRR’s attack is directed primarily at a 

single point: EPA’s assessment of the extent to which climate change observed to 

date is caused by the undisputed human-induced increase in atmospheric greenhouse 

gases. CRR Mot. 38-42. CRR’s limited and scattered attack on the extensive evidence 

 

26 The Council does point to the “weak evidentiary basis” for one conclusion 

regarding the potential economic cost associated with sea level rise. See Texas Mot. 

17. The Council made this statement because the IPCC based this conclusion on a 

small number of unpublished studies. IAC 33 (Ex. 5). There are, however, many 

well-documented physical and ecological impacts from sea level rise discussed in the 

TSD for the Endangerment Finding. See TSD at 35-38 (Ex. 6). The Administrator 

relied on this evidence, not on the IPCC’s conclusions on potential economic costs, 

in making the Endangerment Finding. 

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supporting EPA’s conclusions regarding climate change is, however, rebutted by the 

vast administrative record. 

CRR contends that EPA created a “false dilemma” by allegedly evaluating only 

a single cause of climate change.27 CRR Mot. 38-39. The record demonstrates, 

however, that EPA considered multiple potential influences on climate. 74 Fed. Reg. at 

66,517/2-518/3. Neither was EPA’s determination based on the simplistic 

assumption that “[t]he entire climate system... is... controlled by a thermostat having 

only one knob.” CRR Mot. 42. EPA acknowledged that both natural and 

anthropogenic factors have contributed to observed global warming over the past 50 

years. 74 Fed. Reg. at 66,518/2. EPA’s ultimate conclusion that anthropogenic 

greenhouse gas emissions have caused most of the past half century of warming is 

based on multiple lines of evidence. The first line of evidence arises 

from our basic physical understanding of the effects of changing 

concentrations of [greenhouse gases], natural factors, and other human 

impacts on the climate system. The second line of evidence arises from 

indirect, historical estimates of past climate changes that suggest that the 

changes in global surface temperature over the last several decades are 

unusual.... The third line of evidence arises from the use of computerbased climate models to simulate the likely patterns of response to the 

climate system to different forcing mechanisms (both natural and 

anthropogenic). 

 

27 CRR appears to argue that EPA was required to evaluate not only known 

possible causes of climate change, but also unknown factors that might affect the global 

climate. See CRR Mot. 39-40. EPA was not, however, required to invent (and then 

eliminate) endless possible causes of climate change. Cf. Vermont Yankee Nuclear 

Power Corp. v. NRDC, 435 U.S. 519, 551 (1978) (“common sense” suggested that 

NEPA statement of alternatives was not wanting “simply because the agency failed to 

include every alternative device and thought conceivable by the mind of man”). 

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RTC 3-3 (CRR Mot. Ex. 11). The May 2010 assessment of the science of 

climate change by the National Research Council of the National Academies of 

Science is a clear affirmation of EPA’s scientific judgment. 75 Fed. Reg. at 

49,558/1-2. 

CRR also points to short-term stretches of ten years or less during which 

increases in greenhouse gas levels do not correlate to increases in temperature. CRR 

Mot. 38-39. As EPA explains in the same response to comments that CRR cites, 

however, the relationship between warming and greenhouse gas emissions “is 

complex and non-linear.” RTC 3-4 (CRR Mot. Ex. 11). Precisely because greenhouse 

gas emissions are not the only determinant of temperature change, examining trends 

over five to ten years provides only limited insight into the long-term trend in 

temperatures (and in fact may be misleading on that point). Id. 28 

CRR further argues that because there are uncertainties regarding some 

influences on climate, EPA cannot reasonably link recent warming to anthropogenic 

greenhouse gas emissions.29 CRR Mot. 40-42. This argument reflects a fundamental 

 

28 CRR mischaracterizes EPA’s position as “warming is evidence of global 

warming, and lack of warming is evidence of global warming.” CRR Mot. 39. EPA 

did not cite short-term temperature stability as evidence of warming. It stated only 

that the existence of short periods during which average temperatures remain stable, 

or even drop, does not demonstrate that there is no cause-and-effect relationship 

between greenhouse gas concentrations and long-term global temperature trends. 

RTC 3-4 (CRR Mot. Ex. 11). 

29 CRR errs in stating that the three “primary climate drivers,” CRR Mot. 41, 

identified by the IPCC are listed in order of importance. The IPCC makes no claim 

about the relative importance of these factors. CRR’s claim that “there is substantial 

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misunderstanding of the science of climate change. First, the fact that the percentage 

of carbon dioxide in the atmosphere appears to be low (and the proportion 

attributable to anthropogenic emissions even lower) does not mean anthropogenic 

greenhouse gas emissions have not caused recent warming. As EPA explained, a gas 

that composes only a small percentage of the atmosphere can nonetheless have a large 

radiative effect. RTC 2-19 (Ex. 7). In addition, the best estimates of natural external 

climate forcers over the last several decades (e.g., solar activity and volcanoes) are that 

they have had a cooling, not warming, effect. TSD at 50 (Ex. 6); RTC 3-23 (Ex. 8). 

The pattern of observed warming is consistent with warming from greenhouse gases, 

but inconsistent with warming from natural forcings. TSD at 49-50 (Ex. 6); RTC 3-23 

(Ex. 8); 75 Fed. Reg. at 49,566. It is therefore unlikely that there can be a purely 

natural explanation for the recent and significant warming. 75 Fed. Reg. at 49,566. 

Indeed, observed warming can only be reproduced with models that contain both

natural and anthropogenic forcings. Id.

Neither did EPA “summarily reject,” CRR Mot. 39, evidence conflicting with 

EPA’s conclusions. EPA’s proposed judgment on the science and on endangerment 

was subjected to public comment. 74 Fed. Reg. at 18,898. Before issuing the final 

Endangerment Finding, the Agency reviewed and considered all comments received, 

and it produced an eleven-volume response addressing all significant science, legal, 

 

uncertainty about the influence of the two most important” climate drivers, CRR Mot. 

41, is thus inaccurate. 

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and policy issues raised by commenters. Id. Where evidence or hypotheses contrary 

to EPA’s conclusions were rejected, it was because they were not consistent with the 

“deep body of science that has been built up over several decades and the direction it 

points in,” 75 Fed. Reg. at 49,558, not due to any lack of analysis on EPA’s part. 

 5. EPA Reasonably Defined the Relevant “Air Pollution” and “Air 

 Pollutant” to Be a Mix of Six Greenhouse Gases

Section 7521(a) authorizes EPA to prescribe regulations establishing standards 

for “the emission of any air pollutant from any class or classes of new motor vehicles 

or new motor vehicle engines, which in [EPA's] judgment cause, or contribute to, air 

pollution which may reasonably be expected to endanger public health or welfare.” 

(emphasis added.) Texas’ attack on EPA’s determination that both the “air pollution” 

and “air pollutant” at issue consist of a mix of six greenhouse gases even though 

motor vehicles emit only four of those gases, Texas Mot. 18-19, is wholly unfounded. 

In the Endangerment Finding, EPA defined the “air pollution” that may 

reasonably be anticipated to endanger public health and welfare as “the combined mix 

of six key directly-emitted, long-lived and well-mixed greenhouse gases.” 74 Fed. Reg. 

at 66,516/3. Together, these six greenhouse gases “constitute the root cause of 

human-induced climate change and the resulting impacts on public health and 

welfare.” Id. This is true regardless of whether new motor vehicles emit these gases. 

EPA further defined the “air pollutant” that contributes to endangerment to be an 

“aggregate group of the same six . . . greenhouse gases.” 74 Fed. Reg. at 66,536/3. 

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This was reasonable for several reasons, including that these gases are all directlyemitted, long-lived, and have well-understood radiative forcing effects. 74 Fed. Reg. 

at 66,537/1. Defining an air pollutant as a mix of compounds with related properties 

is also consistent with past EPA practice under the Act. Id. at 66,540/3-41/3.30 

The fact that motor vehicles do not emit all of the six greenhouse gases 

included in the definitions of “air pollution” and “air pollutant” does not undermine 

the reasonableness of those definitions.31 See 74 Fed. Reg. at 66,541/1 (fact that six 

substances share common relevant attributes “is true regardless of the source category 

being evaluated for contribution”). As EPA explained, moreover, the Administrator 

would have made the same contribution finding even if the Agency had defined the 

air pollutant as a group of the four compounds that Texas acknowledges are emitted 

by Section 7521(a) sources. 74 Fed. Reg. at 66,541/2; Texas Mot. 18-19. 

In sum, Movants have failed to demonstrate that they are likely to succeed on 

the merits of their challenge to the Endangerment Finding. 

 B. Movants Are Not Likely to Establish that the Vehicle 

 Rule Should Be Deemed Invalid

 

30 “Air pollutant” is statutorily defined as “any pollution agent or combination of such 

agents...which is emitted into or otherwise enters the ambient air.” § 7602(g)(emphasis 

added). 

31 Texas asserts that EPA “acknowledged in the Endangerment Finding that 

emissions of [nitrous oxide and methane] do not endanger the public health or 

welfare.” Texas Mot. 18-19. Texas cites the Vehicle Rule, not the Endangerment 

Finding – and in neither did EPA state that these two gases do not endanger public 

health and welfare. 

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 Movants do not challenge any substantive aspect of the Vehicle Rule. Their 

various Vehicle Rule merits arguments boil down to either the untenable position that 

EPA acted unlawfully by promulgating standards that Congress directed EPA to 

promulgate, or an improper effort to relitigate issues already decided by the Supreme 

Court in Massachusetts. Neither position holds any likelihood of success. 

 1. EPA Did Not Err by Promulgating Standards That It Had a 

 Nondiscretionary Duty to Promulgate 

 CRR and Texas argue that EPA – having made an Endangerment Finding – 

should have declined to promulgate greenhouse gas emission standards because, in 

Movants’ view, the standards do not do enough to prevent global climate change. See

CRR Mot. 43-45; Texas Mot. 22-24. But nothing in section 7521 allows EPA to 

refuse to promulgate standards – much less compels EPA to refuse to do so – on 

grounds that vehicle standards will not by themselves cure global climate change. To 

the contrary, section 7521 plainly requires EPA to promulgate standards for air 

pollutants that contribute to an endangerment, regardless of how much of the 

endangerment can be ameliorated through such standards. 

 Section 7521(a)(1) provides in relevant part that EPA “shall by regulation 

prescribe . . . standards” for any air pollutant from new motor vehicles that 

contributes to an endangerment. (emphasis added.) The word “shall” indicates a 

command that admits of no discretion on the part of the person instructed to carry 

out the directive. Ass’n of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. 

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Cir. 1994). Put simply,“[i]f EPA makes a finding of endangerment, the Clean Air Act 

requires the agency to regulate emissions of the deleterious pollutant from new motor 

vehicles.” Massachusetts, 549 U.S. at 533. 

 Moreover, contrary to Movants’ characterizations, the Vehicle Rule will

materially address the threat of climate change. As the Supreme Court acknowledged 

in Massachusetts, “the United States transportation sector emits an enormous quantity 

of carbon dioxide into the atmosphere,” and “[j]udged by any standard, U.S. motorvehicle emissions make a meaningful contribution to greenhouse gas 

concentrations... .” Id. at 524-25. The Vehicle Rule will produce huge reductions in 

greenhouse gas emissions. EPA projects that the Rule will generate CO2e reductions 

of 962 million metric tons over the lifetime of model year 2012-2016 vehicles. 75 

Fed. Reg. at 25,490, Table III.F.1-2. Assuming the standards continue through later 

model years, by 2050 the CO2e reductions will constitute a 22.8 percent reduction 

from the levels of CO2e estimated to be emitted from the U.S. transportation sector 

without the rule, a 6 percent reduction of CO2e emitted from all domestic activities 

over the same period without the rule, and a 0.8 percent reduction of CO2e emitted 

from the entire world’s activities over the same period without the Rule. 75 Fed. Reg. at 

25,489, Table III F.1-1. The Rule will result in measurable reductions in atmospheric 

CO2 concentrations, global mean surface temperature, sea level rise, and ocean 

acidifying effects. 75 Fed. Reg. at 25,496, Table III.F.3-1. 

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 The Vehicle Rule also will produce substantial non-climate-change related 

environmental and energy security benefits. It will significantly reduce emissions of 

non-greenhouse gas pollutants and will reduce petroleum imports, thus reducing 

financial and strategic risks caused by potential supply disruptions. 75 Fed. Reg. at 

25,497, 25,531-34, Tables III.G-1, III.H.8-1-2. EPA assessed the monetary benefits 

of the Rule and found its net present value (i.e., benefits minus costs) to be over $643 

billion and maybe as much as $2 trillion. 75 Fed. Reg. at 25,536-37, Table III.H.10-3. 

But regardless of the scope of the Rule’s benefits, EPA did not err by promulgating 

standards that it had a nondiscretionary duty to promulgate. 

 CRR and Texas’ related argument – that EPA should have declined to regulate 

greenhouse gas emissions from motor vehicles in view of NHTSA’s separate authority 

to set fuel efficiency standards – similarly fails. See CRR Mot. 45-46; Texas Mot. 23-

24. This argument was specifically considered and rejected in Massachusetts, where 

EPA contended (as CRR and Texas do now) that it had discretion to decline to 

regulate greenhouse gas emissions from motor vehicles given NHTSA’s authority to 

adopt fuel economy standards under EPCA. The Supreme Court disagreed, 

explaining: 

[T]hat [NHTSA] sets mileage standards in no way licenses EPA to shirk 

its environmental responsibilities. EPA has been charged with 

protecting the public’s “health” and “welfare,” 42 U.S.C. § 7521(a), a 

statutory obligation wholly independent of [NHTSA’s] mandate to 

promote energy efficiency. The two obligations may overlap, but there 

is no reason to think the two agencies cannot both administer their 

obligations and yet avoid inconsistency. 

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549 U.S. at 532. Movants cannot distinguish Massachusetts, and they do not even try. 

 Further, CRR and Texas mischaracterize the Vehicle Rule to the extent they 

suggest that EPA standards do not accomplish anything beyond what is accomplished 

by CAFE standards. There are, in fact, important differences arising from the 

agencies’ respective authorities under the CAA and EPCA. See supra at 6-7. For 

example, EPA’s standards encompass reductions in greenhouse gases that can be 

achieved by air-conditioning system improvements, which NHTSA had no statutory 

authority to address. In addition, manufacturers may opt to pay a fine in lieu of 

meeting CAFE standards, an option not available under EPA’s program. 75 Fed. 

Reg. at 25,342. The upshot is that EPA standards are projected to result in 47 percent 

greater reductions – many hundreds of millions of tons – than projected under the 

CAFE standards over the lives of model year 2012-2016 vehicles. 75 Fed. Reg. 

25,636, Table IV.G.1-4; 75 Fed. Reg. 25,490, Table III.F.1-2. 

 2. EPA Appropriately Considered All Required Impacts

NAM and Texas contend that EPA had an obligation, in establishing standards 

under section 7521, to assess compliance costs that might be incurred by stationary 

sources indirectly under other statutory programs (i.e., the PSD and Title V 

programs). NAM Mot. 33-40; Texas Mot. 20-22. They are mistaken. Nothing 

requires EPA, upon promulgating section 7521 standards, to assess costs to stationary 

sources arising indirectly under other statutory provisions. 

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As noted, section 7521(a)(2) provides: 

Any regulation prescribed under paragraph (1) of this subsection . . . 

shall take effect after such period as the Administrator finds necessary to 

permit the development and application of the requisite technology, 

giving appropriate consideration to the cost of compliance within such 

period. 

The “cost of compliance within such period” phrase refers to the costs to vehicle 

manufacturers subject to regulation under section 7521, and to the period of time 

vehicle manufacturers need to develop technology to meet vehicle standards.32

 Although EPA had no duty to consider indirect stationary source costs, EPA 

did, in fact, consider such costs in the context of deciding whether it should delay 

setting standards. See 75 Fed. Reg. at 25,402; Vehicle RTC 7-67 to 7-68 (Ex. 9). EPA 

identified compelling reasons in support of its decision to promulgate standards now. 

EPA explained first that although it had some discretion with respect to the timing of 

standards, its discretion was not unlimited, and that three years had already passed 

since the Supreme Court had directed EPA to take appropriate actions under section 

7521. 75 Fed. Reg. at 25,402. EPA explained further that any additional delay in 

setting standards would frustrate implementation of the National Program for 

regulation of motor vehicles, resulting in substantial prejudice to vehicle 

 

32 See Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1118 (D.C. Cir. 1979) 

(“Section [7521's] ‘cost of compliance’ concern, juxtaposed as it is with the 

requirement that the Administrator provide the requisite lead time to allow 

technological developments, refers to the economic costs of motor vehicle emission 

standards and accompanying enforcement procedures,” and does not encompass 

indirect costs incurred by the automotive parts and services industry.).

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manufacturers and consumers. Instead of being able to comply with one consistent 

set of federal greenhouse gas and fuel economy standards under the CAA and EPCA, 

vehicle manufacturers would be compelled to comply with three separate federal and 

state regulatory regimes: NHTSA’s CAFE standards, California’s greenhouse gas 

standards (in California and all States that have adopted them), and EPA’s greenhouse 

gas standards (when later promulgated). As a result, automakers would be unable to 

sell a single fleet nationally. 75 Fed. Reg. at 25,326. EPA further explained that 

consideration of indirect stationary source costs has no relevance to the issue of the 

appropriate level at which to set vehicle emission standards. Vehicle RTC 5-456 (Ex. 

9). 

EPA additionally explained that it intended to address concerns about burdens 

associated with stationary source permitting in other EPA actions focused specifically 

on implementation of the PSD program, and EPA subsequently did just that, in the 

Tailoring Rule. Indeed, in that rulemaking EPA extensively assessed impacts to both 

permitting authorities and stationary sources arising from the application of PSD and 

Title V programs, including specific projections of costs, permit application burdens 

and economic impacts. 75 Fed. Reg. at 31,533-41, 31,595-602. In short, EPA 

provided compelling reasons in support of its decision not to further delay vehicle 

standards that it had a nondiscretionary duty to promulgate. 

 NAM and Texas’ citation to the Regulatory Flexibility Act (“RFA”) is also 

unavailing. See NAM Mot. 35-36; Texas Mot. 21. This Court “has consistently 

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rejected the contention that the RFA applies to small businesses indirectly affected by 

the regulation of other entities.” Cement Kiln Recycling Coalition v. EPA, 255 F.3d 

855, 869 (D.C. Cir. 2001). To the extent that small entities must comply with PSD 

permitting program requirements after greenhouse gas regulations for motor vehicles 

go into effect, such compliance is imposed by section 7475 and not by the Vehicle 

Rule. See Vehicle RTC at 5-454-55 (Ex. 9).33 

 C. The PSD and Title V Programs of the Clean Air Act Apply 

 to Greenhouse Gas Emissions from Stationary Sources

In the Timing Decision, EPA concluded that the Vehicle Rule automatically 

“triggers” application of PSD and Title V for greenhouse gases in two ways: it 

requires sources to take greenhouse gases into account in determining whether they 

need to obtain PSD and Title V permits, and it requires that certain PSD permits 

contain limits on greenhouse gas emissions.34 EPA did not have discretion to avoid 

 

33 Similarly, NAM’s scattershot arguments (NAM Mot. 36-37) regarding the 

Unfunded Mandates Reform Act (“UMRA”), the Paperwork Reduction Act (“PRA”), 

CAA Section 317, and Executive Orders 12898 and 13211 lack any merit. See Allied 

Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 81, n.22 (D.C. Cir. 2000) (failure to 

prepare UMRA cost-benefit analysis may not be a basis for invalidating rule); Tozzi v. 

EPA, 148 F. Supp. 2d. 35, 47 (D.D.C. 2001) (failure to comply with PRA not subject 

to judicial review); § 7617(e) (prohibiting judicial review); Exec. Order Nos. 12898 and 

13211 (specifying they do not create any right of judicial review). Moreover, EPA 

fully documented its compliance with these provisions and executive orders in 

promulgating the Vehicle Rule. See, e.g., 75 Fed. Reg. at 25,531-34, 25,539-43; 

Vehicle RTC 5-456; Ch. 8 of Draft Regulatory Impact Analysis. 

34 Unless otherwise indicated, the phrase “Timing Decision” in this section refers 

both to EPA’s PSD Reconsideration action, see 75 Fed. Reg. 17,004, and the portions 

of the Tailoring Rule that codify that action, see 75 Fed. Reg. at 31,606-07. 

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or delay this conclusion based upon potential implementation problems: “Once EPA 

has determined to regulate a pollutant in some form under the Act and such 

regulation is operative on the regulated activity, the terms of the Act make clear that 

the PSD program is automatically applicable.” 75 Fed. Reg. at 17,020/2-3; see also id.

at 17,023/2-3 (similar conclusion for Title V). 

Movants can only prevail in their attack on the Timing Decision if they can 

persuade the Court to read limits into the Act’s provisions that are not present in its 

language, with respect to both applicability to covered sources and the pollutants that 

a permit must control. Movants’ arguments must fail under step one of Chevron

USA Inc., v NRDC for the reasons below. 467 U.S. 837, 843-44 (1984). Even if the 

Court reaches step two of a Chevron analysis, however, Movants’ obligation is not 

satisfied simply by showing that their reading of the statute has some “advantage” 

over EPA’s reading. See CRR Mot. 55. Rather, Movants must show that EPA’s 

reading is unreasonable. Here, it is Movants’ proposed alternative reading, not EPA’s, 

that is an unreasonable interpretation of the Act. 

1. The Emission of “Any Pollutant” May Subject a Source to PSD

The PSD program applies, by the express terms of the Act, to the construction 

or modification of each stationary source that “emit[s], or has the potential to emit, [a 

specified quantity] per year or more of any air pollutant.” §§ 7475, 7479(1) (emphasis 

added). Movants would give a narrow reading to this broad language, arguing that a 

source is subject to PSD only if it emits “a particular NAAQS pollutant [in] a 

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sufficient amount.” NAM Mot. 20. But this Court effectively rejected this very 

argument years ago, holding that a source may be a major emitting facility (and 

therefore potentially subject to PSD) by reason of its emission of “any air pollutant . . . 

even though the air pollutant . . . may not be a pollutant for which NAAQS have been 

promulgated.” Alabama Power v. Costle, 636 F.2d 323, 352 (D.C. Cir. 1979) 

(emphasis added). EPA subsequently promulgated a regulation effectuating this 

holding, which has been in place for more than 30 years. See 45 Fed. Reg. at 52,676, 

52, 710/3-11/1 (Aug. 7, 1980) (Ex. 10); see also id. at 52,711/2.35 EPA’s 

interpretation is “required by Alabama Power and sections [7475(a)] and [7479(1)] of 

the Act,” id. at 52,711/1; it is not an exercise of EPA’s discretion. 

 The “modification” provision of Section 7479 also shows how a source may be 

included in the PSD program by virtue of its emission of non-NAAQS pollutants. 

The type of “modification” that may require a PSD permit under § 7475(a) is defined 

in section 7479(1)(C) to include any “modification” described in section 7411(a). 

That section, in turn, defines a “modification” as a change “which increases the 

amount of any air pollutant.” § 7411(a)(4) (emphasis added). Thus, in determining the 

 

35 NAM argues that section 7479(1) “cannot be read literally,” NAM Mot. 20, 

because EPA announced in 1980 that it would apply PSD to a source only if the 

source emits a sufficient quantity of any pollutant “subject to regulation.” This 

longstanding refinement does not support NAM’s conclusion, however, because there 

is no reasonable interpretation of section 7479(1) that would exclude pollutants actually 

regulated under the Act from the definition of “any pollutant.” Even if EPA’s historical 

reading of section 7479(1) is a departure from the meaning of the text, NAM 

proposes an even greater departure. 

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applicability of the PSD program to sources, the Act itself requires EPA to look 

beyond the statutory provisions establishing PSD to provisions that are not limited to 

NAAQS pollutants.36 

 Movants essentially ignore these applicability provisions, deriding them as 

mere definitions of “no substantive consequence.” NAM Mot. 20, CRR Mot. 50. 

Setting aside the purely semantic question of whether a definition is “substantive,” 

EPA and the Court cannot ignore the clear statutory requirement that if a source is a 

major emitter of any regulated pollutant, it is subject to the PSD program. 

2. The Act Imposes PSD Permit Requirements in All Areas That Are 

“Attainment” or “Unclassifiable” For Any Pollutant 

 

A source described above – i.e., a major emitter of “any air pollutant” that will 

be constructed or modified – must obtain a PSD permit if it will be located in an 

“area to which this part applies.” § 7475(a). “This part” refers to Title I, part C of the 

Act, which establishes the PSD program and includes requirements for all areas that 

are designated as “attainment” or “unclassifiable” for any NAAQS pollutant. § 7471. 

EPA thus determined in 1980 that a source must obtain a PSD permit if it will be 

located in an area designated “attainment” or “unclassifiable” for any NAAQS 

pollutant, regardless whether it emits more than the threshold quantity of that same

 

36 Movants’ omission of any reference to this modification provision is 

particularly salient in the context of their stay motion, as the majority of new PSD 

permit requirements would result from modifications. See 75 Fed. Reg. at 31,538/1. 

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pollutant. 45 Fed. Reg. at 52,710/3-11/1 (Ex. 10).37 NAM and Texas argue that this 

longstanding interpretation of the Act cannot be correct because, regardless of 

whether a source meets the definition of “major emitting facility,” it is subject to PSD 

only if it will be located in an area designated as “attainment” or “unclassifiable” for a 

specific NAAQS pollutant that the source emits at levels above the statutory 

threshold. See NAM Mot. 17-19; Texas Mot. 25-27. 

The Act, however, contains no such limitations. Section 7475(a) takes the set 

of “major emitting facilities” identified in section 7479(1) and further defines which of 

those sources must obtain a PSD permit, but it is the “area,” not the pollutant, that 

determines whether “this part applies.” See § 7475(a). Under EPA’s interpretation, 

“this part applies” to all areas of the country (because every area is designated 

“attainment” or “unclassifiable” for at least one NAAQS pollutant), but this is a 

necessary consequence of a literal reading of the Act. See 45 Fed. Reg. at 52,711/1-2 

(Ex. 10). It is therefore irrelevant whether an area can be designated “attainment” or 

“unclassifiable” for greenhouse gases per se. See NAM Mot. 17, Texas Mot. 26-27.38 

 

37 NAM admits that EPA first took this position years ago and claims it was 

“unlawful.” NAM Mot. 19. However, EPA has consistently applied this position 

since that time, without giving rise to challenges. See 75 Fed. Reg. at 31,561/3-62/1. 

This not only makes the position presumptively reasonable, see id. at 31,562/1, but 

any challenge to it is also now time-barred. See infra pp. 56-57. 

38 NAM claims, see Mot. 18-19, that this approach ignores Alabama Power. In 

that case, this Court held that “this part” does not “apply” to sources located “outside 

of clean air areas.” 636 F.2d at 367; see id. at 364-65. EPA’s regulations comply with 

this holding, exempting sources that are located in a non-attainment area for a 

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Any remaining ambiguity on this point disappears when section 7475(a) is read 

in conjunction with section 7479(1), which provides that the PSD program applies to 

any source that is a major emitter of “any pollutant.” Although the broad definitions 

in section 7479(1) cannot expand the scope of the PSD permit requirement in section 

7475(a), neither should section 7475(a) be read to make the broad definition of 

“major emitting facility” in section 7479(1) superfluous. Under Movants’ strained 

reading, such a facility would be subject to section 7475(a) due to its emission of “any 

pollutant,” but this would have absolutely no effect unless that source also emitted a 

NAAQS pollutant at or above the statutory threshold and was located in an 

“attainment” or “unclassifiable” area for that same pollutant. If Congress intended to 

limit the PSD program as Movants suggest, it chose unusually obscure language by 

which to do so, when it could easily have defined “major emitting facility” as a source 

emitting NAAQS pollutants, instead of “any pollutant,” at sufficient levels. 

 NAM argues, and UARG agrees, that the PSD applicability provisions cannot 

apply to greenhouse gases because the PSD program is concerned primarily with local 

air quality. NAM Mot. 25; UARG Resp. 15-17. Citing section 7471, these parties 

would insert the word “local” into sections 7475 and 7476, where it does not appear. 

In contrast, Congress demonstrated its concern for interstate air quality in the PSD 

 

pollutant from PSD permit requirements for that pollutant. See 40 C.F.R. § 

52.21(i)(2). Even if this carve-out is necessary for an area’s nonattainment pollutants, 

however, the PSD program may still “apply” to that area for all other pollutants 

because it is designated “attainment” or “unclassifiable” for some pollutant. 

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program. See § 7470(4). Congress may not have explicitly addressed air pollutants of 

global effect, but the language Congress did use simply does not limit the program to 

pollutants of local effect. See infra pp. 57-59

3. PSD Permits Must Address All Pollutants Regulated Under the Act

 In addition to reading limits that do not exist into the source-specific and 

geography-specific provisions of the statute, Movants would limit the plain language 

of the Act that defines which pollutants are subject to control. PSD permits must 

require BACT for “each pollutant subject to regulation under this chapter.” § 

7475(a)(4) (emphasis added). “This chapter” refers to Title 42, chapter 85 of the U.S. 

Code – the entire Clean Air Act. Greenhouse gases are a “pollutant,” Massachusetts, 

549 U.S. at 532, and the Vehicle Rule imposes actual controls on greenhouse gases. 

Thus, under the express terms of the statute, PSD permits must contain BACT for 

greenhouse gases. 

 This Court has already held that the phrase “subject to regulation under this 

chapter” is a clear statement that “would not seem readily susceptible to 

misinterpretation.” Alabama Power, 636 F.2d at 404. Indeed, within section 7475, 

Congress itself distinguished pollutants subject to regulation under “this chapter” from 

areas that are affected by “this part,” § 7475(a), (a)(4) (emphasis added). See also § 

7576(e) (describing the even narrower set of air pollutants “for which a [NAAQS] has 

been established”). EPA’s regulations since Alabama Power have recognized that 

pollutants subject to control under any provision of the Act are covered under the 

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PSD program. See 45 Fed. Reg. at 52,722/2 (Ex. 10). Although EPA recognizes 

some ambiguity regarding the meaning of the statutory term “subject to regulation,” 

see generally 75 Fed. Reg. at 17,007-14, it is unambiguous that it must at least 

encompass “each pollutant” that is currently subject to actual control under the Act. 

 Despite the statutory language, the case law, and decades of regulation applying 

this interpretation, Movants posit an alternative, “whole-statute” reading that would 

require controls only for pollutants that are subject to a NAAQS. See CRR Mot. 49-

52; Texas Mot. 25-27. Under their various interpretations, the PSD provisions “can 

rightly be understood” to apply only to the six pollutants mentioned in sections 7473 

and 7476, CRR Mot. 49-51, or at least only to “conventional pollutants,” NAM Mot. 

24-26. They also claim that, under section 7476, the establishment of a NAAQS is 

the exclusive means by which a pollutant becomes regulated under the PSD program. 

Id. at 51. Thus, reading limitations into the Act where none are present, Movants 

would read section 7475(a)(4) to impose controls upon each pollutant “subject to 

regulation under section 7409 of the Act, for which a NAAQS has been established and a 

designation has been made.” 

 Section 7476 does not bear the weight that Movants place upon it. See CRR 

Mot. 51-52. This Court has already rejected the argument that the scope of the BACT 

requirement in section 7475 “is qualified by section [7476];” those sections simply 

have a “different focus.” Alabama Power, 636 F.2d at 405-06. Section 7476 directs 

EPA to promulgate regulations addressing other NAAQS pollutants, but that section 

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cannot defeat the separate, explicit requirement that a PSD permit must include 

BACT “for each pollutant subject to regulation under this chapter [i.e., the entire Act].” 

§ 7475(a)(4) (emphasis added). It also cannot defeat the requirement in section 

7475(a)(3)(C) that PSD permits ensure compliance with any other applicable 

“emission standard” and “standard of performance” under the Act as a whole. § 

7475(a)(3)(C).39 Both of these provisions show that the scope of PSD permitting 

requirements is broader than NAAQS pollutants only. 

 Additional clear evidence against Movant’s interpretation is found in the 1990 

amendments to section 7412 of the Act, which lists hazardous air pollutants and 

provides for emission controls for those pollutants. In section 7412(b)(6), Congress 

provided that “[t]he provisions of Part C of this subchapter [i.e., PSD] shall not apply 

to pollutants listed under this section.” The only possible explanation for this express 

exclusion is that Congress in 1990 believed that the PSD program otherwise would

include the non-NAAQS pollutants listed under section 7412. 

 The various provisions of the Act, including the PSD program, can therefore 

only be rationalized as this Court has already done: “The language of the Act does 

not limit the applicability of PSD only to one or several of the pollutants regulated 

under the Act....” Alabama Power, 636 F.2d at 404. EPA did not “ignore” this 

 

39 NAM attempts to interpret section 7475(a)(3)(C) to mean only that a PSD 

permit may not be issued to a source that is already violating a standard under the Act. 

NAM Mot. 17 n.11. This reading fails to recognize that Section 7475(a)(3)(C) also 

applies to construction permits for new sources that have not yet been built, and that 

therefore cannot already be violating a standard. 

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Court’s ruling in Alabama Power, see NAM Mot. 19; rather, EPA adopted the very 

approach “required by Alabama Power.” 45 Fed. Reg. at 52,711 (emphasis added) (Ex. 

10). It is Movants who ignore the fact that the Court in Alabama Power rejected the 

very BACT argument they now advance. 

4. The PSD “Trigger” For Greenhouse Gas Regulation Is Based Solely 

Upon EPA Decisions That Are Now Beyond Challenge

 As the foregoing sections show, the “triggering” aspect of the Timing Decision 

was the ineluctable result of the application of statutory text, EPA’s regulatory 

interpretations of that text, and a seminal opinion of this Court to a newly regulated 

pollutant. To the extent Movants challenge the application of those regulations to 

greenhouse gases, their arguments are barred. Review of regulations promulgated 

under the CAA is available only within 60 days of the relevant Agency action. § 

7607(b). Although NAM claims that the application of the existing statutory 

interpretation to greenhouse gases is “new grounds” to challenge those regulations, 

see NAM Mot. 19 & n.15, this Court has made clear that “new grounds” cannot be 

based on substantive arguments that could have been made as a challenge to the 

underlying agency action. See Nat’l Mining Ass’n v. DOI, 70 F.3d 1345, 1350 (D.C. 

Cir. 1995); Am. Road & Transp. Builders Ass’n v. EPA, 588 F.3d 1109, 1112-13 (D.C. 

Cir. 2009), cert. denied, No. 09-1485, 2010 WL 3834336 (Oct. 4, 2010). Movants 

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could have, and were required to, challenge EPA’s regulations at the time they were 

promulgated.40

5. Congress Intended EPA to Apply the Act to New Pollutants

 Despite the plain language of the Act, and assuming that their challenges are 

timely, Movants try to forge a Chevron step two argument. The foregoing discussion 

demonstrates that EPA’s interpretations, even if not compelled by the Act, are at least 

reasonable and indeed are superior to Movants’ alternative readings. However, 

Movants also argue that EPA cannot reasonably apply PSD requirements specifically 

to greenhouse gases because Congress could not have so intended. NAM Mot. 24-26. 

This argument is contrary to the Supreme Court’s decision in Massachusetts. 

There, the Supreme Court rejected EPA’s argument “that Congress did not intend it 

to regulate substances that contribute to climate change,” holding that “[t]he statutory 

text forecloses EPA’s reading.” 549 U.S. at 528. The Court considered it irrelevant 

that Congress had no specific intent with respect to greenhouse gases: 

While the Congress that drafted [§ 7521(a)(1)] might not have appreciated 

the possibility that burning fossil fuels could lead to global warming, they 

did understand that without regulatory flexibility, changing circumstances 

 

40 This issue is currently before the Court in Am. Chemistry Council v. EPA, No. 

10-1167, in which various petitioners have challenged regulations from 1978, 1980, 

and 2002 that, together, automatically require PSD permitting to take into account any 

pollutant regulated under the Act. EPA has moved to dismiss those challenges as 

time-barred. See Respondent’s Motion to Dismiss (Sept. 10, 2010). No petitioner 

moved to stay those regulations pending review. Even if the Court were to stay the 

Timing Decision itself, those longstanding regulations would continue to require that 

the Act be applied as EPA announced in the Timing Decision. As a result, a stay 

cannot remedy Movants’ alleged harm. 

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and scientific development would soon render the Clean Air Act obsolete. 

The broad language of [§ 7521(a)(1)] reflects an intentional effort to 

confer the flexibility necessary to forestall such obsolescence. 

Id. at 532. There is no meaningful difference between the language the Supreme 

Court considered and the language of the PSD provisions of the Act. Movants’ 

demand for “very explicit evidence” of Congress’ intent with respect to greenhouse 

gas regulation, CRR Mot. 55, is an attempt to bypass the deference due to EPA under 

the Chevron standard and the Court’s Massachusetts holding.41

 There is also no merit to Movants’ argument that adopting BACT for 

greenhouse gases is somehow different from adopting BACT for conventional 

pollutants. See NAM Mot. 26. While BACT for other pollutants often includes “addon” control technologies, the statute calls for a broader assessment of “production 

processes and available methods, systems, and techniques... for control of each such 

pollution.” § 7479(3). EPA has long recognized that this phrase encompasses both 

add-on controls and inherently lower-polluting processes. See, e.g., In re Knauf Fiber 

Glass, GMBH, 8 E.A.D. 121, 129 (E.A.B. 1999). Thus, even if Movants are correct 

that “mandated energy efficiency” is likely to be the only available BACT for the 

control of greenhouse gases, the use of a more efficient process or design to reduce 

pollution is consistent with both the statute and with EPA’s practice. 

 

41 NAM, Mot. 26, cites FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 133 (2000), to suggest that Congress would not delegate regulatory authority over 

greenhouse gases to EPA. But see Massachusetts, 549 U.S. at 530-32 (distinguishing 

Brown & Williamson and finding it without application in the greenhouse gas 

context). 

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 As the Supreme Court suggested in Massachusetts, the question is not which 

pollutants Congress may have had in mind when it enacted the PSD provisions of the 

Act. Rather, it is whether the Act’s provisions must apply, or can reasonably apply, to 

new pollutants (including greenhouse gases) consistently with the text and purpose of 

the statute. See § 7470(1) (purposes of the PSD program); see also § 7602(h) (noting 

that “effects on welfare” in statutory purpose provisions include, inter alia, effects on 

climate). This question is left to EPA, which must “use its discretion to determine 

how best to implement the policy in those cases not covered by the statute’s specific 

terms.” United States v. Haggar Apparel Co., 526 U.S. 380, 393 (1999). 

 6. Movants Do Not Seriously Challenge EPA’s Inclusion of 

 Greenhouse Gases in The Title V Permitting Program

EPA’s analysis of the triggering effect of the Vehicle Rule applied not only to 

the requirements for preconstruction permits under the PSD program, but also to the 

requirements for operating permits under Title V of the Act. The purpose of Title V 

is to collect all regulatory requirements applicable to, inter alia, a major source of air 

pollutants and to assure compliance with such requirements. 75 Fed. Reg. at 17,023. 

Since 1993, EPA has interpreted Title V as requiring a permit for a major source of 

any pollutant that is “subject to regulation under the Act.” Id. at 17,022-23. Movants’ 

arguments against greenhouse gas regulation based on the provisions of the PSD 

program simply have no application to Title V. Title V has no provisions comparable 

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to the PSD provisions on which Movants rely, NAM Mot. 7, and nothing in Title V 

attaches its requirements only to NAAQS pollutants. . 

 CRR argues that if this Court were to invalidate the regulation of greenhouse 

gas emissions under PSD, then Title V could not apply to greenhouse gases because 

there would be no applicable requirements to include in a Title V permit. CRR Mot. 

57. However, under the CAA, each source that is a “major source” for any air 

pollutant, including greenhouse gases, must obtain a Title V permit. See §§ 7661a(a) 

(permit requirement for major sources); 7661(2)(definition of major stationary 

source); 7602(j); 75 Fed. Reg. at 17,022-23 (noting that EPA applies this requirement 

to each source that is a major source of any air pollutant that is otherwise subject to 

regulation). Even if PSD did not impose any greenhouse gas requirements, a source’s 

greenhouse gas emissions could still make it a “major source,” required to obtain an 

operating permit that assures compliance with other applicable requirements under the 

Act. Nearly every source newly subject to Title V will be subject to some applicable 

requirements (and EPA intends to consider further how to address permits that 

would contain no applicable requirements). See 75 Fed. Reg. 31,566/2-3. 

 D. The Tailoring Rule Is a Valid Exercise of EPA’s Authority

Although EPA’s application of the absurd results, administrative necessity, and 

step-at-a time doctrines reduces Movants’ harm by orders of magnitude, Movants 

nonetheless move for a stay of the Tailoring Rule on the grounds that EPA has 

improperly applied each of these doctrines. Texas Tailoring Mot. 7-13; NAM Mot. 

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27-33. Other than complaining that these doctrines are not often utilized, Movants 

clearly fail to carry their burden of showing a likelihood of success on the merits. 

 1. The Absurd Results Doctrine Was Properly Invoked

 Movants assert that under Chevron Step I, the meaning of the statutory 

threshold in sections 7479(1) and 7602(j) of the CAA, which describe a “major 

emitting facility” or “major stationary source” as one that emits 100/250 tons per year 

of any pollutant, is clear, and therefore EPA cannot tailor that threshold to a different 

number, in this case 100,000 tpy. Yet, as this Court explained, “where a literal reading 

of a statutory term would lead to absurd results, the term simply ‘has no meaning ... 

and is the proper subject of construction by EPA and the courts.” Am. Water Works 

Ass’n v. EPA, 40 F.3d 1266, 1271 (D.C. Cir. 1994). This situation is not at all 

unusual, as the “case law is replete with examples of statutes the ordinary meaning of 

which is not necessarily what the Congress intended.” Id; see also United States v. 

American Trucking Ass’n, 310 U.S. 534, 543-44 (1940). 

 Although termed “absurd results,” the name is somewhat misleading because 

this doctrine allows an agency to depart from the literal meaning of a statute where 

“‘acceptance of that meaning would lead to absurd results ... or would thwart the 

obvious purpose of the statute.’” In re Trans Alaska Pipeline Rate Cases, 436 U.S. 

631, 633 (1978)(emphasis added), quoting Commissioner v. Brown, 380 U.S. 563, 571 

(1965). See also United States v. Bryan, 339 U.S. 323, 338 (1950). These cases are 

consistent with Chevron, which states that “the court, as well as the agency, must give 

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effect to the unambiguously expressed intent of Congress,” thus requiring fidelity to 

actual congressional intent, not necessarily the literal language of the statute. 467 U.S. 

at 842-43 (emphasis added). Indeed, under a Chevron Step One inquiry, the Court 

must look not “only at the plain language of a statute... [but also] to its object and 

policy.’” Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1067-68 (D.C. Cir. 1998). 

 The method by which an agency may best effectuate congressional intent in the 

face of conflicting literal language is through implementation of the statute in a manner 

that cleaves to that intent. As this Court explained: 

When Congress delegates a function to an agency, we believe that an 

important element of congressional purpose is that the function be 

carried out sensibly and efficiently. Congress recognizes that it can only 

legislate, not administer, so it necessarily relies on agency action to make 

“common sense” responses to problems that arise during 

implementation, so long as those responses are not inconsistent with 

congressional intent. 

Cablevision Syst. Dev. Co. v. Motion Picture Ass’n of Am., 836 F.2d 599, 612 (D.C. 

Cir. 1988); see also Negusie v. Holder, 129 S. Ct. 1159, 1171 (2009)(Stevens, J., 

concurring in part). 

 The Tailoring Rule effectuated a “common sense” administration of the CAA. 

The Rule captures sources that emit fully 86% of the greenhouse gas emissions that 

would be captured if the literal 100/250 tpy statutory threshold were applied, thus 

staying true to the central purposes of the PSD and Title V permitting programs. 

Moreover, the Tailoring Rule seeks to control emissions from pollutants that have the 

potential to harm public health and welfare, § 7470(1), while focusing initially on the 

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large emitters that are, as Congress intended, more “financially able to bear the 

substantial regulatory costs imposed by the PSD provisions.” Alabama Power, 636 

F.2d at 353-54; 75 Fed. Reg. at 31,552 (citing similar intent related to Title V). 

Finally, the Rule does so while implementing Congress’ express requirement that 

these permitting programs be administered expeditiously so as “to avoid a logjam of 

permit applications ... [to] ensure that permitting process will work with a minimum of 

disruption and delay.” 136 Cong. Rec. S2107 (Mar. 5, 1990) (emphasis added); see 

also §§ 7661a(b)(6)-(9). Thus, the Tailoring Rule is precisely the type of “deviat[ion] 

from the statute tha[t] is needed to protect congressional intent.” Mova Pharm., 140 

F.3d at 1068. 

 In an argument that exalts labels over substance, Movants assert that because 

EPA relied on the “absurd results” doctrine to tailor the threshold, EPA must 

concede that its own interpretation that the PSD provision even covers greenhouse 

gases is absurd and cannot be upheld. NAM Mot. 20-24, CRR Mot. 18, 48, Texas 

Mot. 27. 42 First, this argument assumes it is necessary to reach a Chevron Step Two 

analysis, which, as outlined in part II.C, supra, is not the case. Even applying Chevron

Step Two, it is Movants’ interpretation (no coverage of greenhouse gases under PSD) 

rather than EPA’s interpretation (tailored coverage) that is the greater deviation from 

 

42 Movants also assert that EPA could (and presumably must) avoid “absurdity” 

by interpreting the general term “pollutant” not to include greenhouse gases. Texas 

Tailoring Mot. 11; CRR Mot. 18; UARG Resp. 10-20. But the Supreme Court has 

foreclosed that possibility by holding that the term “air pollutant” plainly 

encompasses greenhouse gases. Massachusetts, 549 U.S. at 532.

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congressional intent. EPA may not interpret the subject statutory provisions so as to 

avoid absurd results in their implementation, if to do so eviscerates Congress’ intent 

(reflected in the flexible manner in which it structured the CAA, Massachusetts, 549 

U.S. at 532) to cover any pollutant that potentially endangers public health and 

welfare. EPA’s Tailoring Rule hews as closely as possible to congressional intent, but does 

so in a manner that avoids the absurd results in implementation that Congress clearly 

could not have intended. 

 2. EPA Properly Invoked the Administrative Necessity and Step-at-aTime Doctrines

 As EPA explained, although the doctrines upon which it relies to deviate from 

the literal statutory thresholds can be applied in an interrelated manner, each also 

stands on its own as a separate and independent basis to affirm the Tailoring Rule. 75 

Fed. Reg. at 31,516. Thus, even were the absurd results doctrine not itself a complete 

and valid basis for issuing the Tailoring Rule, the administrative necessity and step-ata-time doctrines would still authorize EPA’s multi-stepped treatment of the 100/250 

tpy threshold to achieve statutory compliance over time. 

 Under the administrative necessity doctrine, “an agency may depart from the 

requirements of a regulatory statute ... ‘to cope with the administrative impossibility 

of applying the commands of the substantive statute.’” Envtl. Def. Fund v. EPA, 636 

F.2d 1267, 1283 (D.C. Cir. 1980)(citation omitted). Even where the agency is not 

authorized to create a de minimis exemption, “administrative necessity may be a basis 

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for finding implied authority for an administrative approach not explicitly provided in 

the statute” where applying the commands of the substantive statute “would, as a 

practical matter, prevent the agency from carrying out the mission assigned to it by 

Congress.” Alabama Power, 636 F.2d at 358 (explaining application of this and 

related doctrines in interpreting PSD applicability). 

 EPA undoubtedly has a heavy burden to establish that carrying out the 

mandate of the literal terms of the statute is administratively impossible. Yet that 

burden is met in this case – a conclusion reinforced by Movants’ claims. Here, EPA 

performed a comprehensive study of the processes, costs, manpower, expertise, and 

resources available to state permitting authorities to provide full and timely 

compliance with the statutory requirements necessary to process the 82,000 PSD and 

6.1 million Title V permit applications that would result from application of the literal 

thresholds. EPA concluded that the application of “the specified [statutory] levels of 

emissions at the present time – in advance of the development of streamlining 

methods and greater permitting authority expertise and resources – would create 

undue costs for sources and impossible administrative burdens for permitting 

authorities.” 75 Fed. Reg. at 31,547. 

 The four-step process created in the Tailoring Rule is precisely the type of 

solution the courts look to in cases of impossible administrative burdens. As the 

Supreme Court stated in Massachusetts, “[a]gencies, like legislatures, do not generally 

resolve massive problems in one fell regulatory swoop” and thus can implement 

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regulation “‘one step at a time, addressing itself to the phase of the problem which 

seems most acute to the legislative mind.’” 549 U.S. at 524, quoting Williamson v. 

Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955); see also Grand Canyon Air Tour 

Coal. v. FAA, 154 F.3d 455, 478 (D.C. Cir. 1998). While Texas asserts that EPA may 

not utilize such a process unless it is designed to result in full compliance with the 

statutory requirements, Texas Tailoring Mot. 12, other Movants’ arguments belie 

Texas’ concern. See, e.g., NAM Mot. 10 (explaining that EPA will conduct 

rulemakings in Steps III and IV to expand coverage “potentially all the way down to 

the statutory thresholds of 100 or 250 tpy”). 

 It is unnecessary for EPA to present in response to the Stay Motions its 

detailed explanation of how EPA and the States will be administratively unable to 

meet the overwhelming burdens resulting from application of the literal 100/250 tpy 

threshold, because nowhere do Movants dispute EPA’s conclusions. Indeed, Movants 

contend that even utilizing the tailored threshold of 100,000 tpy, it is essentially 

impossible to implement PSD and Title V for greenhouse gases in an expeditious 

manner (an assertion with which EPA disagrees). NAM Mot. 47-50; CRR Mot. 62-

64.43 Movants thus fail to make the requisite strong showing that they will prevail on 

the merits. 

 

43 Movants’ assertion that the agency must first try literal application before it can 

utilize administrative necessity is inapposite here where, in contrast to the cases 

Movants rely upon, EPA has already studied the administrative burdens and Movants 

do not contest EPA’s conclusions that those burdens are overwhelming. 

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III. MOVANTS HAVE NOT ESTABLISHED THAT THEY WILL 

 SUFFER IRREPARABLE HARM PENDING FINAL RESOLUTION 

 OF THEIR CLAIMS ABSENT A STAY

 Movants’ allegations of harm, collectively, break down into two broad 

categories: (1) economic harm to businesses and industry from the direct and indirect 

costs associated with greenhouse gas regulation of stationary sources; and (2) harm to 

States, like Texas, primarily in the form of increased regulatory responsibilities and 

associated costs. These allegations, however, are wholly insufficient to meet the very 

rigorous showing of the type of concrete and irreparable injury necessary to warrant a 

stay. Winter v. NRDC, 129 S. Ct. 365, 374 (2008).44

 A. The Alleged Harm to Regulated Industries and Other Non- 

 State Movants Is Not Concrete, Imminent, or Irreparable45

Industry Movants claim they will suffer irreparable injury as a result of the costs 

of having to comply with PSD and Title V for greenhouse gases, including a so-called 

“uncertainty tax” that purportedly results from EPA’s regulation of greenhouse gases. 

CRR Mot. 61-7; NAM Mot. 40-51. For numerous reasons, none of the injuries they 

allege withstands scrutiny.

 First: Economic loss does not constitute irreparable harm. “Mere injuries, 

however substantial, in terms of money, time, and energy necessarily expended in the 

 

44 See also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 

(D.C. Cir. 2006); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. 

Cir. 2009) (Kavanaugh, J., concurring) .

45 For clarity, EPA has divided its arguments into harm alleged by the non-state 

movants, collectively referred to herein as “Industry Movants,” and harm alleged by 

Texas (and any other states), even though EPA recognizes there is some overlap. 

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absence of a stay are not enough.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. 

Cir. 1985); see also Sampson v. Murray, 415 U.S. 61, 90 (1974). Instead, 

“[r]ecoverable monetary loss may constitute irreparable harm only where the loss 

threatens the very existence of the movant’s business.” Wis. Gas, 758 F.2d at 674 

(emphasis added). This rule applies even where movants challenge government 

regulation and monetary damages are not available in the event they ultimately prevail. 

See, e.g., Astellas Pharma US, Inc. v. FDA, 642 F. Supp. 2d 10, 22 (D.D.C. 2009); 

Biovail Corp. v. FDA, 519 F. Supp. 2d 39, 48-49 (D.D.C. 2007); Mylan Pharms., Inc. 

v. Shalala, 81 F. Supp. 2d 30, 42 (D.D.C. 2000). Although varied in type, all of the 

harm alleged by Industry Movants is economic harm emanating from application of 

the challenged EPA actions, which cannot support a stay. 

Second: Industry Movants allege that the uncertainty caused by EPA’s actions 

triggers a long chain of economic harms to various industries and then to the public, 

NAM Mot. Ex. 19 (Thorning Dec.) ¶¶ 5,19; CRR Mot. Ex. 22 (Peelish Dec.) ¶ 11; and 

that the threat of these harms will lead industries to move their operations abroad 

where regulatory burdens are less. Plants may close, jobs may be lost, and the 

national economic recovery may be impacted, they say. NAM Mot. 42-45; CRR Mot. 

2. Even if these were accurate predictions (which they are not), they are allegations 

based on wholly hypothetical events.46 Creason Dec. (Ex 11) ¶ 8. Allegations of 

 

46 Movants’ speculative harm extends to contentions that interest groups will use 

the Endangerment Finding to support various types of administrative petitions and 

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harm based on speculation, no matter how potentially large, do not establish the type 

of irreparable harm necessary to justify a stay.47 

Third: Industry Movants’ entire irreparable harm argument is based on an 

incorrect premise: that a stay will provide their constituent members with greater 

certainty. In fact, the opposite is true: the existence of EPA’s regulations decreases the 

uncertainty surrounding the greenhouse gas-related requirements industry will face 

under the Act. As the Fourth Circuit recently stated: “Without a single system of 

permitting [promulgated by EPA], it would be virtually impossible to predict the 

 

judicial challenges. CRR Mot. 66. Many of the examples Movants cite (such as 

common law nuisance suits) were filed well before the Endangerment Finding was 

made, thus making it impossible to say that the Endangerment Finding triggered such 

suits. In fact, many industry parties are themselves relying on EPA's ability to regulate 

greenhouse gas emissions under the Clean Air Act in court filings arguing that federal 

common law of nuisance has been “displaced” in this context, including in cases predating the Endangerment Finding. See, e.g., Conn. v. Am. Elec. Power Co., 582 F.3d 

309, 371-88 (2d Cir. 2009), petition for certiorari filed, 79 U.S.L.W. 3092 (Aug. 2, 

2010)(No. 10-174). In any event, it is well-settled that the mere possibility of adverse 

precedent is not, by itself, enough to constitute “injury” sufficient to confer standing 

(see, e.g., Ala. Mun. Distributors Group v. FERC, 312 F.3d 470, 473 (D.C. Cir. 2002); 

Nat’l Lime Ass’n. v. EPA, 233 F.3d 625, 636 (D.C. Cir. 2000)), let alone irreparable 

harm. 

47 See, e.g., Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 

742, 745-746 (D.C. Cir. 1991) (“Injunctions ... will not issue to prevent injuries 

neither extant nor presently threatened, but only merely ‘feared’”); Mylan Pharms., 

Inc. v. Shalala, 81 F. Supp. 2d at 42-43 (listing cases) (“[c]ourts within the Circuit have 

generally been hesitant to award injunctive relief based on assertions about lost 

opportunities and market share,” finding such injury too speculative to establish 

irreparable harm.). See also Nat’l Park Hospitality Ass’n v. Dep’t. of Interior, 538 

U.S. 803, 811 (2003) (“Mere uncertainty as to the validity of a legal rule” not a 

hardship for purposes of the ripeness analysis); Diamond Shamrock Corp. v. Costle, 

580 F.2d 670, 673 n.1 (D.C. Cir. 1978) (uncertainty because of regulation’s pending 

effect is not harm for purposes of ripeness analysis).

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standard for lawful emissions ....” N.C. ex rel. Cooper v. Tenn. Valley Auth., 615 

F.3d 291, 306 (4th Cir. 2010) (internal quotations omitted). 

The Timing Decision resolves uncertainty over exactly when greenhouse gases 

(and other pollutants) become “subject to regulation” under the Clean Air Act, and 

the Tailoring Rule provides certainty by clarifying for numerous entities potentially 

covered for the first time by the PSD and Title V stationary source permit provisions 

when and under what circumstances they will face regulation, at least through 2016. 

Indeed, issuing a stay will strip away the certainty for thousands (for PSD) and 

potentially millions (for Title V) of entities that are not regulated under the Tailoring 

Rule, and that are rightfully relying on that Rule in their business planning. Any 

supposed uncertainty caused by the possibility that the Tailoring Rule may be 

invalidated (which is present in any challenge to any regulation) cannot be alleviated by 

a stay, because that uncertainty will remain until the Court issues its final decision. 

Fourth: Industry Movants’ alleged harms are both exaggerated and built on 

incorrect assumptions. NAM alone among the Movants attempts to quantify 

nationwide harm, asserting that the greenhouse gas PSD rules will lead to a chain of 

economic events ending in the same amount of losses as the recent recession. NAM Mot. 

43. NAM makes no attempt, however, to identify the period over which these alleged 

losses will occur. It never even attempts to identify, much less quantify, the amount 

of the alleged harm that will occur during the stay period – that is, during this litigation. 

Creason Dec. (Ex 11) ¶¶ 3-4. The most glaring defect in this argument, however, is 

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NAM’s premise: it assumes that EPA’s stationary source rules – which by their terms 

affect only a very small sector of the U.S. economy – will have the same overall cost 

as the recent cap-and-trade legislative efforts, which would have affected almost the 

entire economy. Creason Dec. ¶¶ 4-5. From this, NAM piles incorrect assumption 

upon incorrect assumption, leading to an outrageously inaccurate and unsupported 

conclusion. Creason Dec. ¶¶ 9-10; Evans Dec. (Ex. 12) ¶¶ 4, 8. 

Fifth: Industry Movants cannot show that any alleged rise in investment costs, 

loss in demand, or subsequent loss of market share or profits is directly caused by the 

challenged EPA regulations, as opposed to the many other present uncertainties in the 

markets. Creason Dec. ¶ 7. Movants’ own declarants acknowledge that: (i) various 

factors affect business decisions regarding expansion and operations, including 

changing technology, access to new energy resources, and market dynamics, NAM 

Mot. Ex. 23 (Isakower Dec.) ¶ 18; (ii) currently, industry faces massive uncertainty 

from, among other things, the expiration of tax cuts and changes in health care, NAM 

Mot. Ex. 20 (Huether Dec.) ¶ 12; and (iii) “uncertainty, from whatever the cause, 

increases the risk of an investment and raises the ‘hurdle rate’ that a project must 

earn.” NAM Mot. Ex. 19 (Thorton Dec.) ¶ 19 (emphasis added). It simply is 

impossible to determine, without pure speculation, that uncertainty about regulation 

of greenhouse gases is the specific motivation that has caused specific businesses to 

refrain from investing in a new facility or major modifications, rather than just 

prudence in light of the present economic environment or a host of other factors – or 

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that delaying a decision on the merits for a number of months will motivate such 

entities to go forward with investments in plant infrastructure. 

Sixth: Industry Movants’ claims that the PSD BACT requirement for 

greenhouse gases will cause irreparable harm are self-contradictory. NAM asserts that 

BACT will cause “dramatic” harm to its members, NAM Mot. 46, but simultaneously 

asserts that BACT costs are uncertain, contributing to their “uncertainty injury.” 

NAM Mot. 42. Not only are these assertions contradictory, each is also overstated. 

Movants have not demonstrated that BACT costs will rise to the level of irreparable 

harm because BACT is decided on a case-by-case basis and is dependent on many 

factors, including costs and energy, environmental, and economic impacts. § 7479(3); 

40 C.F.R. §§ 51.166(b)(12), 52.21(b)(12). Importantly, since BACT must be 

achievable considering costs and economic impacts, the statute precludes EPA from 

inflicting the degree of economic harm that Movants must show to obtain a stay of 

EPA’s action. In any event, many BACT decisions are expected to be based on 

energy efficiency, which many companies already implement to reduce operating 

costs. McCarthy Dec. (Ex. 13) ¶ 100.48 

 

48 Even Movants concede that BACT requirements will cause essentially no harm 

until at least Step 2 commences in July 2011 because until then, BACT only applies to 

sources already subject to PSD permitting. NAM Mtn. 23-24 (explaining that Step 1, 

which continues past July 2012, “adopts Movant's result”). This concession not only 

evidences a lack of imminent harm, it also admits that at least some application of 

BACT for greenhouse gases is appropriate, i.e., permissible under the statute. 

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Seventh: Industry Movants allege that the costs of obtaining PSD and Title V 

permits will irreparably harm regulated sources, NAM Mot. 45-46, CRR Mot. 62-63, 

but these allegations also fail on multiple grounds. This amounts to little more than 

concern about the potential burdens faced by any regulated entity at the nascency of a 

new regulation, which without more, simply does not constitute irreparable harm. 

Wis. Gas Co., 758 F.2d at 674. See also, e.g., A.O. Smith Corp. v. FTC, 530 F.2d 515, 

528 (3d Cir. 1976). 

 EPA estimates that the costs of obtaining a PSD permit average about $84,500 

and a Title V permit about $46,400. 75 Fed. Reg. at 31,534. Nothing before the 

Court indicates such a cost “threatens the very existence of” Movants’ members, Wis. 

Gas Co., 758 F.2d at 674, or imposes extreme hardship on Petitioners’ operations. 

See A.O. Smith Corp., 530 F.2d at 515 (“These are not ‘small’ corporations; there is 

no contention that compliance ... would render any appellee unable to meet its debts 

as they come due. Nor is there any contention that the cost of compliance would be 

so great vis-à-vis the corporate budget that significant changes in a company's 

operations would be necessitated.”) Industry Movants’ speculation that permitting 

authorities will face long delays in issuing PSD or Title V permits, CRR Mot. 62-64, is 

just that – speculation, and, as discussed immediately below, inconsistent with the 

actual facts. Evans Dec. ¶ 5. 

 B. Speculative Concerns Regarding Implementation of Permitting 

Programs Do Not Establish Irreparable Harm

 

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 1. The Initiation of Administrative Processes to Administer Permitting 

 for Greenhouse Gas Emissions Does Not Constitute Irreparable Harm

 Texas asserts that it will suffer irreparable harm from having to develop an 

expanded permitting process and then, if Texas is successful on the merits, having to 

undo that process. Texas Mot. 35-38. Texas, however, bluntly stated in submissions 

to EPA that it has absolutely no intention of administering PSD and Title V for 

greenhouse gases. Ex. 14 Thus, it cannot suffer the harm it alleges. 

 Even if Texas were to reverse course and decide to administer PSD and Title V 

for greenhouse gases, it still would suffer no irreparable harm. Texas claims it lacks 

funding to administer an expanded permitting program. Texas Mot. 38-39. But this 

is true of almost every public body that is required to implement a new program, 

which generally is funded only to meet present obligations. Like Movants’ argument 

about the “uncertainty” resulting from challenged regulations, this argument is the 

victim of its own excess: if the normal activities that accompany a new regulatory 

effort are irreparable harm, then every challenged federal regulation would per se be 

deemed to create irreparable harm. 

 In any event, the costs Texas alleges it will incur are greatly exaggerated: more 

than half of Texas’ averred costs would result only after full implementation of Title 

V. As explained below, implementation of Title V would not likely require major 

outlays during the pendency of this litigation. McCarthy Dec. ¶¶ 108,117,123. This is 

particularly telling because Texas does little to estimate its costs during the relatively 

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short period it will take the Court to resolve these cases on the merits and does not 

consider such factors as the actual permit schedule requirements. Finally, Texas’ 

assertions that it will be irreparably harmed simply by having to expand its existing 

PSD and Title V administrative procedures to cover greenhouse gases are not 

credible, as most other States are doing the same without significant problems. 

 2. There Need Be No De Facto “Construction Moratorium” in Texas 

 Texas next asserts that EPA’s actions “threaten to impose a permit 

moratorium,” and indeed goes so far as to insist (with no support whatsoever) that “a 

de facto construction ban is already in place.” Texas Tailoring Mot. 2, 4. As Movants 

correctly point out, section 7475 prohibits a source from constructing or modifying a 

facility without a PSD permit issued in accordance with CAA requirements. 

According to Texas, because it will not have in place by January 2, 2011 a revised SIP 

that covers greenhouse gases, a business in Texas will be unable to obtain a 

construction permit after that date – hence, a “de facto construction moratorium.” 

Texas Tailoring Mot. 14. 

 Texas’ assertions do not establish irreparable harm for several reasons. First, 

Texas has no standing to assert as a basis for a stay, harm that may accrue to 

businesses in the State resulting from a lapse in permitting authority.49 Second, the 

 

49 See, e.g., Mass. v. Mellon, 262 U.S. 447, 485-86 (1923), explaining that while the 

doctrine of parens patriae allows states to bring suit on behalf of their citizens in certain 

circumstances by asserting a “quasi-sovereign interest,” a State may not sue the federal 

government as parens patriae because it is the United States, and not the State, that 

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very rules Texas cites to support its argument that a permitting lapse will occur 

establish the exact opposite: no such lapse need occur and Texas can affirmatively take 

steps to avoid such a lapse. 

 As EPA explains in the proposed FIP Rule, “absent further action by EPA, those 

States’ affected sources confront the risk they may have to put on hold their plans to 

construct or modify ....” 75 Fed. Reg. at 53,890 (emphasis added). That is precisely

the reason that EPA will issue a FIP: to ensure that there is an effective permitting 

program in each State, so that no de facto “construction moratorium” need occur. Id.

at 53,885-86; see also 75 Fed. Reg. at 53,892 (proposed SIP Call). Indeed, Texas 

readily admits that EPA can, and is prepared to, act to prevent a lapse of permitting 

authority in any willing State, by handling the greenhouse gas portion of the 

permitting process pending the State’s development of an appropriate SIP. Texas 

Tailoring Mot. 5. 50

 At bottom, Texas’ complaint is with Texas. Texas asserts that its legislature will 

not act swiftly enough or that its administrative processes grind too slowly. Texas 

Tailoring Mot. 17-18. Even if Texas is for some reason unable to accelerate this 

 

represents the people as parens patriae in their relations to the federal government. See 

also Ctr. for Biological Diversity v. DOI, 563 F.3d 466, 476-78 (D.C. Cir. 2009).

50 Texas argues that because EPA allows a State to accept delegation of 

enforcement of the FIP, “this indicated that EPA lacks capacity to process permit 

applications.” Texas Mot. 40. On the contrary, EPA allows States to accept delegation 

of a FIP, so long as they agree and have the resources to properly administer it. Texas’ assertion 

that EPA lacks the resources to implement the FIP in Texas (or in other states) is not 

supported by evidence of any kind. In fact, EPA expects to have adequate resources 

to administer a FIP. McCarthy Dec. ¶ 61.

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process (which it has not established), it can alternatively take the easier path of 

simply accepting EPA’s offer to implement the greenhouse gas portion of the State’s 

permitting programs through a FIP, while it amends its SIP, as many other States 

have done or intend to do. And, if Texas accepts a FIP to avoid a lapse in permitting 

authority, it can nevertheless retain control by accepting a delegation, as some of the 

FIP States have, which will then allow it to issue the greenhouse gas permits and 

retain much discretion in how it does so. McCarthy Dec. ¶¶ 57-60. If Texas chooses 

not to take any of these paths, it cannot then claim irreparable harm from EPA’s

actions. To state the obvious, a movant “cannot rely on its own actions to create the 

risk of irreparable injury which it then seeks to avoid by the issuance of a preliminary 

injunction.” Vantico Holdings S.A. v. Apollo Mgmt., 247 F. Supp. 2d 437, 454 

(S.D.N.Y. 2003). 

 3. Movants’ Challenges to the Workability of EPA’s Implementation 

Process Are Speculative and Demonstrably Untrue

 In the absence of an actual moratorium, all Movants (and “Responding” 

Petitioners) conjure up an administrative quagmire, speculating that EPA’s proposed 

procedures will not succeed, so that by January 2, 2011, some states will not have a 

permitting authority, which will lead to a de facto “construction ban.” They assert that 

many of the rest of the States will be unable to incorporate the Tailoring Rule 

thresholds into their SIPs by January 2, 2011, and so will face a flood of permit 

applications from small sources, which will then clog the system and thereby lead to a 

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de facto “construction ban” in those States, too. NAM Mot. 48-49; CRR Mot. 62-64. 

All of this is based on utter speculation about how the implementation process 

anticipated by future rulemakings will proceed or, at best, on incomplete information 

about the status of state implementation of greenhouse gas permitting. See, e.g., 

Peabody Resp. 16-18. Therefore, it can hardly be considered the type of “concrete” 

and “imminent” harm that justifies a stay. Wis. Gas, 758 F.2d at 674.51 Moreover, 

Movants misapprehend (or mischaracterize) the regulatory process to be followed by 

EPA. 

 In fact, EPA is developing a comprehensive implementation process for 

greenhouse gas permitting and, based on a recent survey of each state and many local 

districts, in all States – with the possible exception of just Texas – the mechanisms are 

in place (or soon will be) for routine greenhouse gas permitting beginning January 2, 

2011. McCarthy Dec. ¶¶ 4-5, 98, Att. 1. EPA’s implementation process divides the 

States into three groups for PSD permitting purposes, depending on the SIP status of 

each State. The first group includes the seven States and various territories and 

localities whose PSD programs are already implemented through a FIP, which means 

 

51 Cf. Texas v. United States, 523 U.S. 296, 301 (1998) (“A claim is not ripe for 

adjudication if it rests upon contingent future events that may not occur as 

anticipated, or indeed may not occur at all.”) (quoting Longshoremen v. Boyd, 347 

U.S. 222, 224 (1954)(“[d]etermination of the scope ... of legislation in advance of its 

immediate adverse effect in the context of a concrete case involves too remote and 

abstract an inquiry for the proper exercise of the judicial function.”)). 

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that EPA regulations, including the tailored thresholds, already govern. 75 Fed. Reg. 

at 53,888 n.7; id. at 53,898 n.11; McCarthy Dec. ¶¶ 28-30. 

 The second group is represented by 12 States and four localities that operate 

under an EPA-approved SIP but whose PSD program does not currently apply to 

greenhouse gases. McCarthy Dec. ¶¶ 34, 55. Texas is part of this second group, 

needing to take action to have authority to cover greenhouse gases and to do so at the 

tailored thresholds. Absent EPA’s implementation plan, come January 2, 2011, 

sources in these states that need a permit for their greenhouse gas emissions under 

section 7475(a)(1) will not have a permitting authority available to issue one, and 

therefore could be unable to proceed with construction. 

 EPA’s implementation plan for these states is found in its September 2, 2010, 

proposed SIP Call, in which EPA proposed to find that these SIPs are “substantially 

inadequate” because they do not apply PSD to greenhouse gases, to require these 

States to submit a corrective SIP revision applying PSD to greenhouse gases, and to 

establish a deadline for their SIP revision. 75 Fed. Reg. at 53,892. This deadline 

must, by statute, be a reasonable period not to exceed 18 months. § 7410(k)(5). Here, 

EPA has established a 12-month deadline but has further allowed the states to agree 

to an earlier deadline, as early as December 22, 2010. 75 Fed. Reg. at 53,901. EPA 

expects to finalize the SIP Call by December 1, 2010. McCarthy Dec. ¶ 52. 

 If a State fails to submit its proposed SIP revision by its deadline, EPA must

then issue a FIP for that State, which, in this case, EPA intends to do immediately 

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upon a State’s failure to act by its deadline. 75 Fed. Reg. at 53,897, 53,904 (citing § 

7410(c)(1)). Thus, any State – including Texas – may avoid a lapse in permitting 

authority either by (i) submitting a SIP revision that EPA can approve prior to January 

2, 2011, or (ii) allowing EPA to set a December 22, 2010 deadline for its SIP revision 

so that EPA can promulgate a FIP in that State on December 23, 2010 (while the 

State simultaneously proceeds with the preparation of its SIP amendments). Id. at 

53,904/3-05/1. In other words, each of these States, including Texas, has the full 

power to ensure that a lapse in permitting authority does not occur, simply by asking 

for an early SIP revision deadline that will allow prompt implementation of a FIP. In 

fact, most of the States and other jurisdictions have adopted this FIP approach, and 

the rest are expected to have approved SIP revisions by or very close to January 2, 

2011.52 

 The third and final group is the 30 States and six localities that have an 

approved SIP that already covers greenhouse gases but at the statutory levels 

(100/250 tpy). These States need to amend their SIPs to incorporate the tailored 

thresholds to ensure that they will not be obligated to enforce PSD for greenhouse 

 

52 Of the jurisdictions subject to the SIP Call, EPA expects that by January 2, 

2011, seven States and one locality will be subject to a FIP, and two States and one 

locality will have approved SIPs. McCarthy Dec. ¶ 55. Of the rest, two States and 

one locality are expected to have an approved SIP revision or FIP in the first quarter 

of 2011, and one locality is expected to have an approved SIP in the first half of 2011. 

Id. The gaps in these states are not expected to present any meaningful difficulty 

because of the brief period of time involved or lack of sources needing permits during 

that short period of time. Id. 

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gases at the statutory levels. Recognizing that some of these States will not have 

approved SIP revisions by January 2, 2011, EPA and these States have been working 

cooperatively to ensure that sources below the Tailoring Rule thresholds nevertheless 

will not be covered by PSD under either federal or state law as of January 2, 2011, or 

very shortly thereafter. EPA will rescind its previous approval of each of these State’s 

SIPs to the extent they apply PSD to sources emitting greenhouse gases under the 

Tailoring Rule thresholds of 75,000/100,000 tpy. 75 Fed. Reg. at 31,579. EPA 

proposed this solution in the Tailoring Rule and expects to finalize it by the end of the 

year. Id. at 31,579; McCarthy Dec. ¶¶ 73-74, 90. This will eliminate the Federal law 

requirement that greenhouse gas sources below the Tailoring Rule thresholds obtain 

permits. 

 At the same time, the States are revising (or interpreting) their own statutes or 

regulations to eliminate the same requirement under state law even before these States 

have approved SIP revisions. Twenty-three of the thirty States in this category and 

three localities will revise (or can interpret) their state law so that it applies only to 

sources above the Tailoring Rule thresholds by January 2, 2011; five States and three 

localities anticipate that the state law changes will be in place by February 2, 2011; and 

one additional State anticipates that state law changes will be in place by mid-February 

2011. McCarthy Dec. ¶ 97. Thus, notwithstanding Petitioners’ dire forecasts of 

“debilitating uncertainty,” the oncoming “train wreck,” and the “glorious mess” 

associated with the States’ purported inability to apply EPA’s proposed processes, 

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Farm Bureau Resp. 2; Peabody Resp. 3, 20; CRR Mot. 56, for all practical purposes by 

January 2, 2011 or very soon thereafter, greenhouse gas permitting requirements for 

PSD sources, as limited by the Tailoring Rule to just the largest sources, will 

essentially be fully implemented throughout the country. There is, therefore, no 

reason to expect any lapse in permitting authority or long permitting delays. 

 As detailed supra, while Title V generally is not implemented through SIPs, it 

follows a basically parallel track to PSD in applying federal Title V requirements 

through state programs approved by EPA or, in lieu thereof, through a federal Title V 

program. EPA intends to take steps similar to those outlined for PSD to ensure that 

all state Title V programs cover greenhouse gases and do so at the tailored thresholds. 

McCarthy Dec. ¶¶ 112-115. Nevertheless, unlike PSD (which prohibits a source 

from constructing or modifying its facility without a permit issued in compliance with 

federal law, § 7475), in States where the approved Title V program does not apply to 

sources which are “major” only as a result of greenhouse gas emissions, such a source 

may continue to operate its facility without even applying for a permit generally until up to 

one year following the date the state Title V requirements are amended to apply to 

such sources or federal requirements are issued in lieu thereof. § 7661b. Because a 

source generally has up to a year after becoming subject to Title V to submit its 

permit application, § 7661b(c), 40 C.F.R. § 70.5(a)(1), EPA does not anticipate that 

any source will have to submit Title V applications solely as a result of being “major” 

for greenhouse gas emissions under Title V, or that States will have to act on such 

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applications, until sometime in 2012. See McCarthy Dec. ¶¶ 117, 123. By that time, 

these cases will have been decided, so there is no imminent, irreparable harm 

justifying issuance of a stay. 

 4. Movants’ Arguments Regarding the Legality of EPA’s 

 Implementation Plans Are Meritless

 In a series of arguments that are opaque at best, Movants assert that even if 

EPA’s implementation process runs smoothly, that process may not be utilized 

because it violates certain provisions of the CAA or EPA’s regulations that “require” 

States be given three (or five) years to amend their SIPs so as to cover greenhouse 

gases. CRR claims that section 7576 imposes a five-year period for SIP revisions that 

implement a PSD program to control a new pollutant, and until then, PSD does not 

apply. CRR Mot. 52. UARG and Texas claim that 40 C.F.R. § 51.166(a)(6) gives 

States three years to amend their SIPs to address greenhouse gases. Texas Tailoring 

Mot. 14, UARG Resp. 7. These timing arguments (which go only to PSD, not to Title 

V) are misplaced on several levels. 

 First, Movants’ arguments do not even apply to 38 states. As outlined above, 

for eight States (category 1 above), PSD already is applied to greenhouse gases 

through a FIP, so provisions regarding the time allowed to amend a SIP are irrelevant. 

As further outlined above, for thirty additional States (category 3 above), their SIPs 

already apply PSD to greenhouse gases because they broadly apply to any “pollutant 

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subject to regulation.” These States are amending their SIPs only to ensure that such 

application occurs at the tailored thresholds rather than the statutory thresholds. 

 Second, Movants’ argument that in the remaining twelve states, EPA’s 

regulations, including the Tailoring Rule, impose a construction ban unless the sates 

revise their SIPs, UARG Resp. 9-10, is flatly wrong. It is based on the wholly 

incorrect premise that absent a SIP amendment in those States, sources located there 

can obtain construction permits without having to address greenhouse gases until the 

State amends its SIP to affirmatively cover these pollutants. In fact, the opposite is 

true. As discussed above, since the beginning of the statutory PSD program, EPA has 

interpreted section 7475(a) as directly prohibiting construction or modification of a 

stationary source unless it obtains a PSD permit, which covers any regulated pollutant, 

including newly-regulated pollutants. This obligation on a source is independent of 

the obligation on states to have a PSD SIP that conforms with the statute, including 

covering newly regulated pollutants. See 67 Fed. Reg. at 80,186, 80,240 (Dec. 31, 

2002) (“The PSD program applies automatically to newly regulated NSR pollutants”). 

Accordingly, if a SIP fails to comply with this requirement to cover newly-regulated 

pollutants, and the state therefore lacks authority to issue permits covering a new 

pollutant, such as greenhouse gases, without a FIP the source will be unable to obtain 

a permit covering all pollutants “subject to regulation” and the source will be 

prohibited from construction, by operation of section 7475(a)(1). Thus, even if the 

twelve States could take up to three years to amend their SIP, it is unclear why they 

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would want to, since it would deprive sources in their States a permitting authority 

from which to obtain the permit still required by statute, not by a SIP. 53

Third, Movants mischaracterize the Tailoring Rule as amending 40 C.F.R. § 

51.166 to impose the requirement that PSD apply to greenhouse gases. CRR Mot. 14, 

59-60, Texas Tailoring Mot. 14, UARG Resp. 4-10. In arguing that EPA itself 

requires a three-year SIP review period, Movants cite 40 C.F.R. § 51.166(a)(6)(i), 

which provides that “[a]ny State required to revise its [SIP] by reason of an amendment to 

this section [51.166] ... shall adopt and submit such plan revision to [EPA] ... no later 

than three years after such amendment.” (Emphasis added). But it is not the 

Tailoring Rule that required States to revise their SIP PSD program to cover any 

newly regulated pollutants, including greenhouse gases. It is the statute, confirmed by 

EPA’s long-standing requirement and reiterated in the 2002 regulatory revisions to the 

PSD program, that leads to the necessity (not even a requirement) for twelve states to 

amend their SIPs. The Tailoring Rule is deregulatory: it ameliorates impacts that result 

 

53 In a recent decision the 7th Circuit, mistakenly citing to PSD provisions when 

the issue before the court involved the separate and different non-attainment 

provisions of §§ 7501-7515, concluded that sources could continue to abide by 

permitting requirements in an existing SIP until amended, even if that SIP does not 

comport with the law. United States v. Cinergy Corp., No. 09-3344, 2010 WL 

4009180 (7th Cir. Oct. 12, 2010). (See Ex. 15 at 14-15, Petitioners’ brief, explaining 

that the dispute was based on non-PSD provisions.) In stark contrast to the nonattainment provisions actually at issue in Cinergy – which are not self-executing and 

must therefore be enforced through a SIP – PSD is self-executing; it is the statute (§ 

7475), not just the SIP, that prohibits a source from constructing a project without a 

permit issued in accordance with the Act. Thus, until an applicable implementation 

plan reflects the statutory requirements of the CAA, a source subject to PSD cannot

construct its project. 

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from the operation of the statute, which is what requires PSD to be applied to 

greenhouse gases.54 Thus, 40 CFR § 51.166(a)(6)(i) has no applicability here. 

 In fact, the only EPA action even arguably “requiring” the twelve states to 

amend their SIPs is occurring through the proposed SIP Call. As outlined above, 

EPA is calling for amendments to the various SIPs pursuant to section 7410(k)(5). 

Under the express terms of that section, “[t]he Administrator shall notify the State of 

the inadequacies [done through the SIP Call], and may establish reasonable deadlines 

(not to exceed 18 months after the date of such notice) for the submission of such plan 

revisions.” Id. (Emphasis added.) Here, the Administrator issued the SIP Call with a 

reasonable deadline of 12 months. 

 Movants question the validity of the procedure outlined by EPA in the 

proposed SIP Call as well as the proposed FIP Rule, see, e.g., CRR Mot. 8, but neither 

of these, nor other related proposed or contemplated procedures Movants question, is 

 

54 Movants mischaracterize EPA’s statements in the Tailoring Rule as requiring

states to interpret their “subject to regulation” provisions to incorporate the Tailoring 

Rule thresholds and avoid a SIP revision. CRR Mot. 60-61, Texas Tailoring Mot. 13. 

The Tailoring Rule does not require this interpretation; it says that States may be able 

to do so, and in fact, eight are doing so. 75 Fed. Reg. at 31,581; McCarthy Dec. ¶ 95. 

UARG argues that it is unlawful for states to apply the Tailoring Rule thresholds 

through an interpretation of existing SIP language. See UARG Resp. 10. However, 

UARG ignores the fact that many states “intend their [PSD] rules to apply in the same 

manner as EPA's counterpart rules.” 75 Fed. Reg. at 31,581/3. Accordingly, these 

states can interpret “subject to regulation” to automatically include any newlyregulated pollutant in their PSD permitting program in a manner similar to EPA – 

and, in the case of greenhouse gases, by incorporating the applicability thresholds that 

EPA established in the Tailoring Rule, as a component of the “subject to regulation” 

provision -- without having to take additional regulatory action.

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yet final agency action. A petitioner cannot challenge a non-final action of an agency. 

Bennett v. Spear, 520 U.S. 154, 177-78 (1997); P&V Enters. v. Corps of Eng’rs, 516 

F.3d 1021, 1026 (D.C. Cir. 2008). Not surprisingly, no Petitioner has filed a petition 

for review of those proposed actions. If Movants believe EPA’s implementation 

procedures as detailed in the SIP Call and FIP Rule are illegal, they must first seek to 

address their concerns to EPA through the administrative process. 

 Movants’ reliance on other provisions to mandate some multi-year time period 

is similarly misplaced. Movants rely on section 7410(a), which is inapplicable here, 

where section 7410(k)(5) is being utilized, but in any event this provision specifically 

declares that SIP amendments may be required “within 3 years (or such shorter period as 

the Administrator may prescribe).” § 7410(a) (emphasis added). CRR separately claims 

that EPA’s regulatory process violates section 7410(l), which requires a State to 

subject any SIP revisions to prior notice and comment. CRR Mot. 58-59. But 

nothing EPA has done forecloses this process; in fact, EPA has afforded the States a 

full year to complete their SIP revision processes. 75 Fed. Reg. at 53,896/1.55 CRR 

 

55 CRR further asserts the processes EPA is following for implementation of the 

tailored thresholds were not fully explained in the proposed Tailoring Rule and, 

therefore cannot be incorporated in the final Tailoring Rule. CRR Mot. 59. While 

certain definitions changed in the final rule, those changes were a logical outgrowth of 

the original proposal. CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079-

80 (D.C. Cir. 2009); City of Portland v. EPA, 507 F.3d 706, 715 (D.C. Cir. 2007). 

Moreover, CRR was required to file an administrative petition for reconsideration if it 

wanted to challenge this issue, which it has not done. See § 7607(d)(7); Appalachian 

Power Co. v. EPA, 249 F.3d 1032, 1065 (D.C. Cir. 2001). The procedures that 

Movants actually assert to be improper are those in the proposed SIP Call and FIP 

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also asserts that under section 7476, EPA cannot require a State to regulate a new 

pollutant until 21 months after EPA issues a rule announcing the existence of this 

new pollutant. CRR Mot. 60. This provision, however, applies only to certain 

NAAQS pollutants, not other pollutants “subject to regulation,” like greenhouse 

gases. See supra 54-56 (discussing inapplicability to section 7476 to non-NAAQS 

pollutants and why, in any event, it does not impose a 21-month deadline for covering 

a new NAAQS pollutant). 

 Finally, UARG cites section 7410(i), which states that except for certain 

enumerated actions, which include both SIP revisions and FIPs, “no ... action 

modifying any requirement of an applicable implementation plan may be taken with 

respect to any stationary source by the State or by the Administrator.” This provision 

does not apply to the SIPs that automatically update to apply PSD to greenhouse 

gases because for them, “no ... action modifying any [SIP] requirement ... [is being] 

taken,” nor does it apply to SIP amendments required under a different subsection of 

7410, subsection (k)(5), which expressly provides that EPA may issue a SIP Call 

requiring a SIP revision and may call for the revision to be submitted at any time the 

Administrator deems reasonable. 

 5. Texas Has No Sovereign Right That Will be Irreparably Harmed

 

rule, which, as noted, are not final. EPA accepted comments on those until October 

4, 2010. 75 Fed. Reg. at 53,883, 53,892. 

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 Texas acknowledges that EPA’s proposed FIP would effectively relieve Texas 

of its administrative burdens and of any hypothetical lapse of permitting authority. 

Because this concession would otherwise defeat its stay motion, Texas asserts that a 

FIP would somehow deprive Texas of its sovereign right to manage and protect its 

own clean air resources. Texas Tailoring Mot. 16. See also CRR Mot. 60-61. 

However, no such sovereign right exists. Although the CAA directs States to prepare 

implementation plans subject to EPA’s approval and oversight, it is replete with 

provisions that permit EPA to direct the state to meet federal standards or withdraw 

that State’s authority to implement the Act in appropriate circumstances. 

 A State’s PSD and Title V permitting programs must comport with all EPA 

regulations and requirements and must be approved by EPA. §§ 7661a(b),(d); 

7410(a)(2)(C). If EPA determines that the state program fails to meet all 

requirements, EPA is specifically authorized to “eliminate[] the state’s ability to 

manage its own pollution control regime.” Virginia v. Browner, 80 F.3d 869, 874, 

882-84 (4th Cir. 1996) (State’s sovereign rights are not infringed when EPA exercises 

its right to enforce Title V). If a State does not comply with EPA regulations, that 

State is subject to multiple levels of sanctions by EPA and to imposition of a FIP. 

NRDC v. Browner, 57 F.3d 1122, 1123-24 (D.C. Cir. 1995). Ultimately, if a State 

decides that it does not wish to comply with the requirements that EPA establishes, it 

may refuse to submit a SIP. The full burden of enforcing federal regulations then 

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reverts to the federal government. See, e.g., Hodel v. Va. Surface Mining and 

Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981). 

 Moreover, the State’s authority to administer its SIP is even more restricted 

with regard to EPA’s PSD requirements. See Citizens to Save Spencer County v. 

EPA, 600 F.2d 844, 868 (D.C. Cir. 1979) (“Congress clearly prescribed a somewhat 

larger role for the federal government in the formulation of PSD requirements than in 

some other aspects of the Act ....”). Thus, while the state-federal partnership remains 

vibrant, “[t]he Act nevertheless does provide for an aggressive federal role in 

rescinding or modifying a state plan in the case of a breach by the state of federallymandated air pollution standards and implementation procedures.” Id. at 852 n.9. 

 Even if Texas is correct that EPA’s regulations somehow infringe its sovereign 

rights, Texas has not explained how that constitutes irreparable harm. As noted 

above, Texas may exercise its rights as a State by taking up to a year to amend its SIP: 

a FIP will merely be in place to ensure against any lapse in permitting authority while 

Texas exercises that “right.” During this time Texas would continue to be the 

permitting authority for non-greenhouse gas emissions; the FIP would cover only 

greenhouse gas emissions. 

 Even with a FIP, Texas may be assured that it has substantial control over the 

permitting process by accepting a delegation from EPA of the authority to administer 

the FIP. It is true that under these circumstances, Texas would need to act in 

accordance with requirements contained in EPA’s regulations – the most important 

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of which are the BACT requirements – but those requirements are similar to the 

requirements already in Texas’ SIP for other pollutants. Thus, Texas would 

experience little difference in issuing greenhouse gas permits acting as a delegatee 

under the FIP than it would were it to act under its own approved SIP. McCarthy 

Dec. ¶ 59. In particular, because the BACT provision is inherently discretionary, 

Texas would have substantial discretion in administering that requirement. Thus, 

Texas is not irreparably harmed.56 

C. Movants’ Purported Harm Will Not Be Redressed by a 

 Properly Issued Stay

 Even if one were to assume that Movants could establish that they are harmed 

by application of PSD and Title V to greenhouse gases, their Motions for a stay must 

still fail because the relief they seek, a stay of each of the challenged rules, will not 

afford them the desired relief, a fact that dooms their motion. Wis. Gas, 758 F.2d at 

674 (requiring that a stay movant “show that the alleged harm will directly result from 

the action which the movant seeks to enjoin”). Most of the Movants’ arguments 

unjustifiably lump all the challenged EPA actions into one basket, claiming they are 

 

56 Texas complains that it may have to revise state laws to address Title V permit 

fees and suggests that sources would be required to pay Title V permits fees as a result 

of their greenhouse gas emissions. Texas Mot. 32-35. Notably, its declarant does not 

state that Texas is authorized to collect fees based on emissions of greenhouse gases. 

Furthermore, as noted above, if the Title V program in Texas does not apply to 

sources solely as a result of greenhouse gases emissions then such sources will not be 

subject to Title V at all until such time as the program is amended or federal 

requirements are promulgated. In any event, a rise in fees charged to permit 

applicants is neither irreparable harm nor harm that can be asserted by Texas. 

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harmed by all.57 In fact, however, no Movant has alleged any direct harm from 

greenhouse gas regulation of mobile sources through the Endangerment Finding and 

Vehicle Rule. A stay of either of those two mobile source actions solely to address alleged 

harms resulting from stationary source regulation of greenhouse gases is completely 

unwarranted. The triggering effect that mobile source regulation of greenhouse gas 

emissions has with respect to stationary source regulation of such emissions is a product 

of the statute, not of EPA’s regulations, and there is no basis to stay an otherwise 

proper rule solely on the basis of its collateral, and unavoidable, statutory implications. 

 A stay of the two stationary source actions also will fail to provide Movants 

with the relief they seek. As Movants recognize, this Court’s stay of a regulation 

pending review preserves the status quo that existed prior to the promulgation of the 

regulation. NAM Mot. 1, 11 (citing Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. 

Cir. 2006)). As detailed supra, the Timing Decision affirms and refines EPA’s preexisting interpretation of the underlying statutes, clarifying the date on which PSD 

and Title V will apply to greenhouse gases. A stay of the Timing Decision would not 

eviscerate EPA’s 1980 and 2002 rulemakings or its 2008 interpretation (the Johnson 

Memo), or the separate 1993 memorandum for Title V, in which EPA established that 

the PSD program and Title V apply automatically to each pollutant (not merely 

NAAQS pollutants) subject to regulation under the Act. See supra pp. 57-59. 

 

57 Here, Movants seek to stay, in various combinations, each of the four EPA 

actions being challenged. See Texas Tailoring Mot. 2; CRR Mot. 2; NAM Mot. 2.

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 Similarly, all of the alleged harm Movants describe, i.e., the economic effects 

and administrative burdens related to the PSD and Title V process and the uncertainty 

that occurs with having to address a new regulatory regime, will be reduced by orders 

of magnitude by the Tailoring Rule. Indeed, Movants cite at length to the harm that 

will occur without the Tailoring Rule, in support of their assertion that EPA has not 

established the proper process for SIP approval of the tailored thresholds by the 

States. See, e.g., NAM Mot. 7 n.3, 9 n.7, 48-51. 

 When a court finds upon full review of the merits that an agency has 

improperly promulgated a rule, it may remand it to the Agency or, if necessary, vacate 

it. Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847, 854 (D.C. Cir. 1987); 

Steinhorst Assocs. v. Preston, 572 F. Supp. 2d 112, 125 (D.D.C. 2008). The Court 

should not exercise more expansive powers, i.e., order an agency to refrain from 

enforcing a statute or to refrain from applying interpretations in preexisting 

regulations not being challenged here, merely because Movants also seek a stay. 

IV. THE PUBLIC INTEREST AND IMPACTS TO OTHER PARTIES 

DISFAVOR A STAY58

Astonishingly, Movants assert that no one will be harmed by a stay of EPA’s 

actions. See, e.g., Texas Tailoring Mot. 6 (“There is no possibility that a stay would 

injure any party.”); CRR Mot. 11 (“A Stay sacrifices none of the alleged benefits – 

there are none ....”). First, any stay of a federal regulation necessarily impinges upon 

 

58 In a request for a stay, the analysis of harm to others and impact on the public 

interest merge. Nken, 129 S. Ct. at 1762. 

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an important public interest. As the Supreme Court explained in addressing a request 

to stay an agency order, “the parties and the public, while entitled to both careful 

review and a meaningful decision, are also generally entitled to the prompt execution 

of orders that the legislature has made final.” Nken, 129 S. Ct. at 1757. 

Environmental regulations in particular serve an important public interest, one that 

cannot be quantified in typical terms of costs or lost opportunities. See United States

v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 702 (1973). 

Thus, a stay in this case, by definition, impinges upon an important public interest. 

 That is particularly true here, given the statute and actions involved. As 

outlined supra, the very purpose of the CAA is to “to protect and enhance the quality 

of the Nation’s air resources so as to promote the public health and welfare and the 

productive capacity of its population.” § 7401(b)(1). This critical public interest is 

specifically repeated in the PSD provisions of the Act, which were enacted “to protect 

public health and welfare from any actual or potential adverse effect which in the 

Administrator’s judgment may reasonably be anticipated to occur from air pollution 

... notwithstanding attainment and maintenance of all [NAAQS].” § 7470(1). A stay 

of any of the rules at issue here – whether such stay is limited just to regulation of 

stationary sources (as sought by NAM), or extends to the regulation of mobile sources 

as well (as sought by Texas and CRR) – clashes with this vital and congressionallyidentified public interest. On this ground alone, the public interest easily bests 

Movants’ speculative claims of harm to themselves, as well as their claims that no one 

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will be harmed if a stay is issued. See, e.g., United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483, 497 (2001). 

 The Endangerment Finding, moreover, provides a veritable roadmap of the 

many ways in which a stay of EPA’s actions – or of the statutory permitting programs 

for stationary sources – would harm the public interest. The Administrator 

determined that greenhouse gas emissions threaten both public health and welfare, 

detailing impacts that include, inter alia, direct temperature effects, air quality effects, 

the potential for changes in vector-borne diseases, and the potential for changes in the 

severity and frequency of extreme weather events. 74 Fed. Reg. at 66,496, 66,523-30. 

These impacts in turn affect food production and agriculture, forestry, water 

resources, energy, infrastructure, settlements, ecosystems and wildlife, as well as 

national security. Id. at 66,496, 66,530-35. Because Congress delegated to EPA the 

authority and the obligation to assess the impacts of pollutants on public health and 

welfare, the Court should give substantial weight to the Administrator’s determinations 

in weighing the impacts of a stay on the public interest. See Cuomo v. U.S. Nuclear 

Reg. Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985) (affording special weight to NRC 

views on the public interest because “Congress, the elected representatives of the 

entire nation ... decreed [that NRC] should be responsible for the ‘national security, 

public health, and safety’ concerns associated with nuclear power”). Moreover, the 

Supreme Court has recognized the important public interests affected by greenhouse 

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gases, including harm unique to States as opposed to just the interests of their citizens. 

Massachusetts, 549 U.S. at 521-27. 

 Stationary sources are the primary source of U.S. anthropogenic greenhouse gas 

emissions.59 Thus, even Movants’ own expert concedes that the regulation of 

greenhouse gas emissions is “good public policy [and] I support regulation of 

greenhouse gas emissions from motor vehicles and stationary sources as a prudent 

approach to reducing the risks of global climate change ....” NAM Mot. Ex. 17 

(Graham Dec.) ¶ 3 (emphasis added). 

 Movants weakly attempt to minimize the harm to the public by asserting that a 

stay would affect only the short term, whereas climate change occurring as a result of 

greenhouse gas emissions is a process that occurs over decades. Movants’ own 

submissions demonstrate the flaw in this logic. For example, a single state, Texas, 

estimates that 161 large facilities will be subject to PSD permitting over the first year 

of the program. Texas Tailoring Mot., Hagle Aff. at 11. If enforcement of the PSD 

program is stayed even for just the next year while the parties address the merits, 

those facilities in Texas – and many more in the other States and territories – will 

escape the statutory requirement of a PSD permit that requires greenhouse gas 

controls in perpetuity (unless they undertake a subsequent modification that triggers 

 

59 While mobile sources contribute over 23% of total domestic greenhouse gas 

emissions, electricity generation alone contributes 34% and the industrial sector an 

additional 19% percent, making stationary sources by far the largest class of 

greenhouse gas emitters. 74 Fed. Reg. at 66,496, 66,537-40; 75 Fed. Reg. at 31,519.

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PSD). This is because PSD is a pre-construction permitting program: a source that is 

built without having to obtain a permit, with its attendant emission controls, may 

operate indefinitely without those controls. Because many of these facilities – 

especially the largest emitters among them, coal-fired power plants – will likely 

operate for many decades, and because greenhouse gases remain in the atmosphere 

with their heat-increasing properties for decades to centuries, 75 Fed. Reg. at 31,519, 

the effect of even one year’s worth of these entities escaping regulation will have 

essentially an effect that will be felt for hundreds of years. This long-term effect is 

not one that has been lost on this Court. See, e.g., Spencer County, 600 F.2d at 860 

(in addressing the precise date on which application of PSD should begin, Court 

explains that “the rate of deterioration of air quality in various regions will be 

determined by the resolution of this question”). 

Movants contend the benefits from regulating greenhouse gas emissions are 

speculative “because BACT is not yet known.” NAM Mot. 56. Of course, if the 

environmental benefits of BACT limitations are too speculative to weigh on the 

public interest side of the ledger, then surely so are the economic harms that Movants 

assert from having to comply with BACT. See supra at 72. In any case, when 

assessing the public benefits of a regulatory program, those benefits do not have to be 

quantified with exactitude. The fact that newly constructed sources will have to 

include BACT instead of no controls at all indicates that the application of the PSD 

program to greenhouse gases will control those sources’ potential emissions. 

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 Movants characterize their own increased costs as an important public interest 

because of loss of jobs or increased consumer costs for their products. Central 

among their arguments is the “phenomenon” of “carbon leakage”: they contend that 

because of EPA’s regulation of greenhouse gases, sources will “escape” U.S. 

regulation and move their facilities to countries like China, India and Brazil, where 

they can pollute unabated, and that this harms the public interest. NAM Mot. 56-57. 

First, this is an oft-repeated threat, first made when the CAA was enacted and again at 

every major amendment, and it has never come to pass. Indeed, many businesses 

recognize the benefits of structuring their business strategy around compliance with 

greenhouse gas regulation, not running away from it. Creason Dec. ¶ 7 n.2 (citing 

corporate study). Second, Movants’ arguments about the extent of “leakage” are 

based on estimates from the proposed economy-wide cap-and-trade legislation; 

movants have made no estimates about the impact, if any, that the much narrower 

PSD regulations would have. Id at ¶ 11. Third, Movants’ conclusion that emissions 

will actually increase if PSD applies to greenhouse gases (NAM Mot. 56-57), assumes 

that most businesses subject to regulation in the United States will flee the country. It 

does not account for the vast majority of businesses, which undoubtedly will choose 

not to flee the country and, therefore, will reduce their greenhouse gas emissions in 

compliance with the Act’s requirements, or for the fact that power plants – the largest 

domestic emitters of greenhouse gases – cannot relocate to “pollution-friendly” 

environs. Finally, Movants’ premise is wholly speculative because it assumes that the 

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countries they identify will not implement controls for greenhouse gases emissions 

from stationary sources. 

 Finally, Movants assert that a stay should be granted because regulation of 

greenhouse gases is an issue better handled by Congress. CRR Mot. 14, 22, 69. While 

that may or may not be true, the Supreme Court settled this matter in Massachusetts, 

and EPA has no authority to ignore the existing Congressional mandates of the CAA. 

Certainly, this Court may not grant a stay based on the possible chance that Congress 

may enact a law that may somehow impact compliance with the specific provisions of 

the CAA here at issue. 

Separately, staying the Vehicle Rule will result in substantial prejudice and harm 

to the auto industry and consumers of vehicles. To support the National Program, 

California has revised its standards such that compliance with the Vehicle Rule is 

deemed to be compliance with California’s standards. 75 Fed. Reg. at 25,328. If the 

Vehicle Rule were stayed, EPA’s federal greenhouse gas regulations would no longer 

be an alternative compliance option for meeting the California standards. Without 

such an alternative compliance option, automakers would instead have to comply with 

California standards (in both California and the other States that have adopted them), 

which are not aligned with NHTSA’s fuel economy standards (see supra at 14). This 

would present myriad problems for the auto industry in terms of product planning 

and vehicle distribution. Not surprisingly then, the auto industry has intervened in 

support of EPA’s Vehicle Rule and opposes a stay. California has likewise intervened 

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and opposes a stay, as have many other states. A stay of the Vehicle Rule would also 

lead to a loss of emissions reductions from Model Year 2012 vehicles that would be 

sold during the pendency of a stay, with the emission losses occurring over the full life 

time of the vehicles. 

Movants cannot establish that the speculative harm they claim they will face 

absent a stay outweighs the substantial harms to others and to the public interest that 

will occur – immediately and with consequences lasting centuries – if a stay is issued. 

CONCLUSION

 For the foregoing reasons, all motions to stay in these actions should be denied. 

 Respectfully submitted, 

DATED: October 28, 2010 IGNACIA S. MORENO 

 Assistant Attorney General 

 /s/ THOMAS A. LORENZEN

OF COUNSEL THOMAS A. LORENZEN 

JOHN HANNON JON M. LIPSHULTZ 

ELLIOTT ZENICK ANGELINE PURDY 

DAVID ORLIN PERRY ROSEN 

STEVEN SILVERMAN DAVID GUNTER 

BRIAN DOSTER ERIC HOSTETLER 

CAROL HOLMES KIM SMACZNIAK 

HOWARD HOFFMAN U.S. Department of Justice 

Office of General Counsel Environment & Natural Resources Div. 

U.S. Environmental Protection Environmental Defense Section 

 Agency 1200 Pennsylvania Ave., NW 

Washington, D.C. 20460 P.O. Box 23986 

 Washington, D.C. 20026-3986 

 (202) 305-0733 

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing EPA’S 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, who are required to 

have registered with the Court’s CM/ECF system. 

Date: October 28, 2010 /s/ Thomas A. Lorenzen 

 Thomas A. Lorenzen 

Counsel for Respondent EPA

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