In re: 

BEFORE THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

EPA Docket No. 

Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under 

Section 202(a) of the Clean Air Act 

) 

) 

) 

) 

) 

EPA-HQ-OAR-2009-0171 

PETITION FOR RECONSIDERATION AND WITHDRAWAL OF EPA'S 

ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(a) 

OF THE CLEAN AIR ACT 

Filed by 

THE OHIO COAL ASSOCIATION 

Scott C. Oostdyk 

McGuire Woods LLP 

One James Center 

90 1 East Cary Street 

Richmond, Virginia 23219 

804.775.1000 

Gordon R. Alphonso 

McGuire Woods LLP 

The Proscenium 

1170 Peachtree Street N.E., Suite 2100 

Atlanta, Georgia 30309 

404.443.5500 

Neal J. Cabral 

McGuire Woods LLP 

Washington Square 

1050 Connecticut Avenue N.W., Suite I200 

Washington, D.C. 20036 

202.857.1700 

Virginia L. H. Nesbitt 

McGuire Woods LLP 

One James Center . 

90 I East Cary Street 

Richmond, Virginia 23219 

804.775.1000 

Counsel to The Ohio Coal Association 
PETITION FOR RECONSIDERATION AND WITHDRAWAL OF EPA'S 

ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(a) 

OF THE CLEAN AIR ACT 

TABLE OF CONTENTS 

I. INTRODUCTION ......................................................................... ! 

II. LEGAL STANDARD ..................................................................... 2 

III. THE PRE-DETERMINED SCIENTIFIC "BASIS" FOR THE 

ENDANGERMENT FINDING ......................................................... 4 

IV. THE INFEASIBILITY OF IMPLEMENTING THE GHG REGULATIONS 

BASED ON THE ENDANGERMENT FINDING ................................... 6 

V. CONCLUSION ............................................................................ 9 

11 
I. INTRODUCTION 

Pursuant to Section 307(d) of the Clean Air Act, 42 U.S.C. § 7607(d), the Ohio 

Coal Association ("the Association") hereby petitions the U.S. Environmental Protection 

Agency ("EPA" or "the Agency") to convene a proceeding for reconsideration and 

withdrawal of the "Endangerment and Cause or Contribute Findings for Greenhouse 

Gases Under Section 202(a) of the Clean Air Act, Final Rule" published by the Agency 

on December 15,2009 (74 P.R. 66496, Dec. 15, 2009) ("the Endangerment Finding"). 

The Association's petition is based on the release of email and other information 

from the University of East Anglia ("UEA'') Climatic Research Unit ("CRU") in 

November of last year. The CRU information undermines a number of the central tenets 

on which the Endangerment Finding rests, particularly the work of the U.N. 

Intergovernmental Panel on Climate Change ("IPCC"). In the Federal Register 

publication of the Endangerment Finding, EPA specifically noted that it relied upon the 

"major assessments" of IPCC for the "scientific and technical basis" of the decision. 1 By 

casting IPCC as a prominent intellectual pillar of the Agency's work, EPA vouched for 

this organization and predicated the reliability of its own work on the integrity of IPCC. 

The CRU admissions, simultaneously damaging and shocking, debase EPA's uncritical 

faith in IPCC's output. Among the CRU documents disclosed is an email from Dr. Keith 

Briffa, CRU Deputy Director and an IPCC lead author: "I tried hard to balance the needs 

of the science and the IPCC. which were not always the same .... "

2 The Association 

respectfully requests the EPA to reconsider and withdraw the Endangerment Finding in 

74 F.R. 66510. 

2 Briffa, Keith. Email. April 24, 2007, available at 

http://www.eastangliaemails.com/emails.php?eid=794&filename=ll77890796.txt (emphasis added). 

I 
light of this new and extremely disconcerting information from CRU-given the EPA's 

admitted reliance on CRU and IPCC research. 

In addition, the Association's petition 1s based on comments by state 

environmental permitting agencies with respect to the "Greenhouse Gas Tailoring Rule" 

(74 F.R. 55292, Oct. 27, 2009) ("the Tailoring Rule") that were received after the 

finalization of the Endangerment Finding on December 15, 2009. These state agencies 

point out the onerous and prohibitive permitting requirements that would stem from the 

Endangerment Finding and associated regulation of Greenhouse Gases ("GHGs")-

onerous results that even EPA admits are so consequential as to justifY deviation from 

specific statutory permitting thresholds under the doctrines of administrative necessity 

and absurd results-will not be cured despite the supposed relief afforded by the 

Tailoring Rule. That the very permitting authorities who will be obligated to implement 

GHG permitting assert that EPA's proposed "fix" to avert wide-spread permitting and 

associated economic disaster will not work necessitates a more thorough reexamination 

of the plausibility of Endangerment Finding. Considering the implications of both the 

CRU communications and the states' Tailoring Rule comments, it is beyond any 

reasonable dispute that EPA must convene a proceeding to consider these issues. To 

refuse to do so would be irrational, arbitrary, and capricious. 

II. LEGAL STANDARD 

Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), states in 

relevant part: 

If the person raising an objection can demonstrate to the 

Administrator that it was impracticable to raise such an 

objection within such time or if the grounds for such 

objection arose after the period for public comment (but 

2 
within the time specified for judicial review) and if such 

objection is of central relevance to the outcome of the rule, 

the Administrator shall convene a proceeding for 

reconsideration of the rule and provide the same procedural 

rights as would have been afforded had the information 

been available at the time the rule was proposed. 

Thus, EPA is required to convene a proceeding for reconsideration upon a showing of 

two conditions precedent: (I) that the information arose after the period for public 

comment on the Endangerment Finding, and (2) that the objection is of "central relevance 

to the outcome of the rule." 

The first element is easily met with respect to both of the Association's grounds 

for this petition for reconsideration. The public comment period for the proposed 

Endangerment Finding closed on June 23, 2009. The scandal with respect to the emails 

and other communications from CRU first surfaced in late November 2009. 

Additionally, the comment period for the Tailoring Rule did not end until December 28, 

2009, at which time some of the country's most populated states such as California, New 

Jersey, and Texas were still raising additional concerns about the impossibility of 

implementing permitting regulations that would necessarily soon follow as a result of the 

Endangerment Finding. 

The second element is also clearly met with respect to the CRU documents and 

the states' comments on the Tailoring Rule. The CRU documents and their implications 

are of central relevance to the Endangerment Finding because they go to the core 

requirements of Section 202, including the public's opportunity to comment on those 

provisions under 307(d)(3), and the consistency of those provisions with the Act and with 

fundamental standards of reasoned agency decision-making. This challenged error is "so 

serious" that there is a substantial likelihood that the rule may not have been issued at all 

3 
or would have been significantly changed if such errors had not been made. See 42 

U.S.C. 7607 (d)(S), (d)(9)(D)(iii). The information revealed by the recently uncovered 

CRU materials directly impeaches the validity and reliability of the purported scientific 

consensus on which EPA relies, the factual data upon which the Endangerment Finding is 

based, and the validity and reliability of the methodology used in determining and 

analyzing said data. Likewise, the states' Tailoring Rule comments go to the heart of 

EPA's reason for issuing the Endangerment Finding at ail- that is, to protect the health 

of the American public. EPA should further explore the extent to which implementation 

of the Endangerment Finding is practically impossible under State Implementation Plans, 

since impossibility calls into question all justification for the Endangerment Finding. 

The central question for the Administrator's determination in response to this 

Petition is whether the CRU materials and that state's Tailoring Rule comments are of 

central relevance to the "outcome" of the Endangerment Rule. The Association submits 

that an affirmative conclusion is clear and unequivocal. 

III. THE PRE-DETERMINED SCIENTIFIC "BASIS" FOR THE 

ENDANGERMENT FINDING 

EPA must reconsider, stay in the interim, and ultimately withdraw its 

Endangerment Finding based on new material that was not available during the comment 

period and which is central to the outcome that EPA reached in promulgating its 

Endangerment Finding. EPA failed to properly exercise its judgment as required by the 

Clean Air Act and acted in an arbitrary and capricious fashion by relying almost 

exclusively on flawed reports of the IPCC in attributing climate change to GHG 

emissions. As evidenced by material that became available last fall from CRU, as well as 

additional information that has become available since the Endangerment Finding was 

4 
issued, the IPCC reports were not the product of a rigorous, transparent, and neutral 

scientific process. Dr. Tom Wigley's email, an IPCC contributing author, sums up an 

alarming situation: "In my (perhaps too harsh) view, there have been a number of 

dishonest presentations of model results by individual authors and by IPCC. "3 Because 

EPA elected to outsource its obligation to make a "judgment" as to whether GHGs may 

endanger public health and welfare to the IPCC, EPA should reconsider and withdraw its 

Endangerment Finding in light of the recently discovered defects in the IPCC's 

procedures, and convene full evidentiary hearings on the recent findings with respect to 

the relevant IPCC reports and analyses relied upon by EPA. 

Press, academic, and critical accounts of IPCC's actions are too pungent to 

ignore. The CRU information reveals that many of the principal scientists who authored 

key chapters of the IPCC scientific assessments were driven by a policy agenda that 

caused them to cross the line from neutral science to advocacy. 4 Indeed, they went far 

beyond even what is acceptable as advocacy, as they allegedly actively suppressed 

information that was contrary to the "nice, tidy story" that they purportedly planned to 

present. 5 What is more, they refused to disclose underlying data concerning the studies in 

which they were involved to third parties who might use the information as critique. 

Moreover, they engaged in a wide variety of allegedly improper and questionable tactics 

to manipulate the type of scientific information that appeared both in the IPCC reports 

and in the peer-reviewed scientific journals upon which the IPCC largely relied. Finally, 

Wigley, Tom. Email. Oct. 14, 2007, available at 

http://www.eastangliaemails.com/emails.php?eid~ I 057 &filenam~ 1255 553034. txt (emphasis added). 

4 See supra footnote 2. 

Briffa, Keith. Email. Sept. 22, 1999, available at http://eastangliaemails.com/emails.php?eid~l36. 

5 
they are accused of relying on inaccurate and unverified information from secondary 

source material that was produced by advocacy groups, information that the authors 

apparently knew was unverified but included anyway to advance the authors' advocacy 

agenda. 

The IPCC' s recent retraction of its "poorly substantiated estimates of the rate of 

recession and the date for the disappearance of Himalayan glaciers" as set forth in the 

AR4 Working Group II Report,6 and the numerous other recent IPCC errors that have 

come to light, is indicative of a process that was far from neutral and robust, but rather 

promoted policy goals admittedly pursued by a group that has been unmasked as partisan 

and calculating. The Agency no longer has a basis for unquestioned confidence that the 

IPCC reports present a fair, unbiased, and accurate assessment of climate science. Since 

these reports were relied on extensively in the Endangerment Finding, the Agency has no 

choice but to conclude that the Endangerment Finding itself is now tainted, and must be 

withdrawn. EPA must either develop its own scientific assessments or justifY why it 

continues to rely on IPCC's questioned reports. 

IV. THE INFEASIBILITY OF IMPLEMENTING THE GHG REGULATIONS 

BASED ON THE ENDANGERMENT FINDING 

State environmental permitting agencies have pointed out the impossibility of the 

permitting scheme that will necessarily follow from EPA's Endangerment Finding with 

respect to GHGs. Once an Endangerment Finding is issued, and GHGs become regulated 

"pollutants" under the Clean Air Act, a substantial and practically impossible 

administrative burden will occur as a consequence of EPA's regulation of GHG 

6 IPCC statement on the melting of Himalayan glaciers, Jan. 20, 20 I 0, available at 

http://www.ipcc.ch/pdf/presentationslbimalaya-statement-20january201 O.pdf. 

6 
emissions from mobile sources, which EPA plans to issue in March 2010. Furthermore, 

because EPA's Endangerment Finding classifies GHGs as "pollutants," between 40,000 

and six million GHG emissions sources would be required to obtain permits from state 

environmental permitting agencies under the Clean Air Act. The assessment comes from 

the very officials that will be compelled to implement EPA's action. 7 

EPA has offered a proposal to "tailor" Clean Air Act permitting requirements to 

address this issue. EPA specifically describes the impacts of GHGs as regulated 

pollutants under the Clean Air Act as "overwhelming" and "paralyzing" to state 

permitting agencies, producing "multi-year permitting backlogs."8 To alleviate this 

administrative burden, EPA is proposing to change the statutory permitting thresholds to 

exempt comparatively smaller sources of GHGs. Under the doctrine of "administrative 

necessity"9 and "absurd results," 10 EPA will temporarily increase the applicable 

emissions trigger for when a permit must be obtained with respect to GHGs. However, 

EPA's proposal provides an absurdly truncated time for state agencies that operate 

pursuant to a State Implementation Plan to increase their statutory and regulatory 

thresholds-which have the force of law within state borders-so as to be able to reduce 

the administrative burden on the state level. State permitting authorities are constrained 

by state law and legislative session schedules, as well as by required administrative 

7 Letter of Public Comment, Docket No. OAR-2009-0517, National Association of Clean Air 

Agencies, December 28, 2009. 

Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 F.R. 

55294-95 (Oct. 27, 2009). 

9 See Alabama Power Co. v. Castle, 636 F.2d 323 (D.C. Cir. 1980). 

10 See Buffalo Crushed Stone, Inc. v. Surface Transportation Board, 194 F.3d 125, 129-30 (D.C. Cir. 

1999). 

7 
procedures (including their own public notice and comment periods), and cannot raise 

emission thresholds for a "pollutant" in the limited time period that GHG emissions 

would be subject to regulation due to the Endangerment Finding. This contention was 

made by the state officials· themselves during the comment period for the Tailoring Rule 

who, as the actual GHG permitting authorities, argue that EPA's proposed rule will not in 

actuality achieve its objective of avoiding absurd results. 11 These states have proposed 

various alternative solutions to the Tailoring Rule, all of which amount to (at minimum) 

delaying the effective date that GHGs become regulated pollutants under the Clean Air 

Act. The most viable and sensible option would be instead for EPA to withdraw its 

Endangerment Finding so that the GHG permitting impacts that have been raised by the 

states can be assessed. 

Furthermore, even if states could conform their own laws to the Tailoring Rule, 

most states anticipate that the number of permit actions that would remain under EPA's 

proposed thresholds for GHGs will be far greater than estimated by EPA. Finally, states 

that are now feeling the heaviest impact of the latest economic recession are faced with 

the impossible task of drumming up sufficient administrative resources to handle the 

inevitable increase in workload. EPA has the responsibility of ensuring that state and 

local permitting authorities have adequate resources in place to address the additional 

permitting workload that flows from an Endangerment Finding before a determination is 

made based uncritically on the work of a results-oriented advocacy group like IPCC. 

The very permitting authorities who will be obligated to implement GHG 

permitting because of EPA's Endangerment fmding have emphasized in their comments 

II See Letter of Public Comment, Docket No. OAR-2009-0517, National Association of Clean Air 

Agencies, December 28, 2009. 

8 
to the Tailoring Rule that EPA's proposed "fix" will not work. These very real and 

practical concerns which have only come to light after the finalization of the 

Endangerment Rule necessitate a more thorough reexamination of the fundamental 

plausibility of the Endangerment Finding. 

V. CONCLUSION 

For all of the foregoing reasons, EPA should convene a proceeding to reconsider, 

stay, and/or withdraw the Endangerment Finding. 

Respectfully submitted this 12th day of February, 2010. 

\10674011.1 

Atto~et(~eO~ 

Sco'tt C. Oostdyk 

McGuire Woods LLP 

One James Center 

901 East Cary Street 

Richmond, Virginia 23219 

804.775.1000 

Gordon R. Alphonso 

McGuire Woods LLP 

The Proscenium 

1170 Peachtree StreetN.E., Suite 2100 

Atlanta, Georgia 30309 

404.443.5500 

Neal J. Cabral 

McGuire Woods LLP 

Washington Square 

1050 Connecticut Avenue N.W., Suite 1200 

Washington, D.C. 20036 

202.857.1700 

Virginia L. H. Nesbitt 

McGuire Woods LLP 

One James Center 

90 I East Cary Street 

Richmond, Virginia 23219 

804.775.1000 

Counsel to The Ohio Coal Association 

9 
BEFORE THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

In re: 

Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under 

Section 202(a) of the Clean Air Act 

) 

) 

) 

) 

) 

EPA Docket No. 

EPA-HQ-OAR-2009-0171 

______________________ ) 

SUPPLEMENTAL PETITION FOR RECONSIDERATION AND WITHDRAWAL OF 

EPA'S ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(a) 

OF THE CLEAN AIR ACT 

Filed by 

THE OHIO COAL ASSOCIATION 

Scott C. Oostdyk 

McGuire Woods LLP 

One James Center 

901 East Cary Street 

Richmond, Virginia 23219 

804.775.1000 

Gordon R. Alphonso 

McGuireWoods LLP 

The Proscenium 

1170 Peachtree Street N.E., Suite 2100 

Atlanta, Georgia 30309 

404.443.5500 

Neal J. Cabral 

McGuire Woods LLP 

Washington Square 

1050 Connecticut Avenue N.W., Suite 1200 

Washington, D.C. 20036 

202.857.1700 

Virginia L. H. Nesbitt 

McGuire Woods LLP 

One James Center 

901 East Cary Street 

Richmond, Virginia 23219 

804.775.1000 

Counsel to The Ohio Coal Association 
SUPPLEMENTAL PETITION FOR RECONSIDERATION AND WITHDRAWAL OF 

EPA'S ENDANGERMENT AND CAUSE OR CONTRIBUTE FINDINGS FOR 

GREENHOUSE GASES UNDER SECTION 202(a) 

OF THE CLEAN AIR ACT 

TABLE OF CONTENTS 

I. INTRODUCTION ......................................................................... 1 

II. EPA HAS FAILED TO NEGATE POINTED CRITICISMS OF 

IPCC'S REPORT THAT INVALIDATE THE ENDANGERMENT 

FINDING .................................................................................... 2 

A. EPA Has Relied on IPCC's Report Without Criticism ......................... 3 

B. EPA Cannot Continue to Rationally Rely on IPCC's Report ............... 11 

III. IMPLEMENTING THE GHG REGUATIONS IS INFEASIBLE 

BASED ON THE ENDANGERMENT FINDING .................................. .15 

A. EPA Identified Significant Negative Permitting Impacts in the 

Endangerment Finding but Erroneously Assumed It Could 

Remedy Them ...................................................................... 15 

B. The Tailoring Rule Fails to Prevent a Widespread Negative 

Economic Impact .................................................................... 18 

IV. CONCLUSION ............................................................................ 22 

ii 
I. INTRODUCTION 

Pursuant to Section 307(d) of the Clean Air Act, 42 U.S.C. § 7607(d), the Ohio 

Coal Association ("the Association") hereby supplements its original Petition for 

Reconsideration of the "Endangerment and Cause or Contribute Findings for Greenhouse 

Gases Under Section 202(a) of the Clean Air Act, Final Rule" published by the Agency 

on December 15,2009 (74 F.R. 66496, Dec. 15, 2009) ("the Endangerment Finding"). 1 

The Association's supplemental petition describes in further detail the deference 

by EPA to the U.N. Intergovernmental Panel on Climate Change ("IPCC") for 

fundamental research and scientific findings in support of EPA's core conclusions in its 

Endangerment Finding, the release of emails from the University of East Anglia ("UEA'') 

Climatic Research Unit ("CRU") in November of last year calling in to question the 

objectivity and methodology of IPCC members, and the correlation between the 

challenged IPCC methodology and the EPA's Endangerment Finding. The supplemental 

petition also details the world-wide criticisms of IPCC's conclusions regarding climate 

change, and the perception that the United States of America, through EPA's conclusions 

in the Endangerment Finding, has embraced as a government scientific conclusions 

predicated on questionable or invalid premises. Because EPA elected to outsource to 

IPCC the "scientific and technical basis" of the Endangerment Finding, 2 the Agency 

predicated the reliability of its own work on the integrity of IPCC. The CRU admissions, 

as well as the true nature and source of IPCC's data, damage the integrity of the IPCC 

The Ohio Coal Association's initial petition was filed with Administrator Jackson on February 12, 

2010. 

2 74 F.R. 66510. 
study and conclusions, and should alarm the Agency, inspiring the withdrawal and rereview of the Endangerment Finding. 

In addition, the Association's supplemental petition highlights comments by both 

state environmental permitting agencies and industry shareholders with respect to the 

"Greenhouse Gas Tailoring Rule" (74 F.R. 55292, Oct. 27, 2009) ("the Tailoring Rule"), 

which EPA interjected after the expiration of the comment period for the Endangerment 

Finding. The state agencies and private interests offered timely comment to EPA 

regarding the Tailoring Rule, pointing out the onerous and prohibitive permitting 

requirements that would be precipitated by the Endangerment Finding and associated 

regulation of Greenhouse Gases ("GHGs"), despite the supposed relief afforded by the 

Tailoring Rule. 

The Association respectfully submits that EPA must reexamine the plausibility of 

the Endangerment Finding. Considering the way the world is looking askance at the 

EPA's use of science right now and how the government officials ultimately to be 

charged with implementing the EPA's Tailoring Rule are doubting the basic legitimacy 

of that rule, to refuse to do so would be non-rational, arbitrary, and capricious. 

II. EPA HAS FAILED TO NEGATE POINTED CRITICISMS OF IPPC'S 

REPORT THAT INVALIDATE THE ENDANGERMENT FINDING. 

EPA must withdraw its Endangerment Finding based on new revelations and 

criticisms about the IPCC's AR4 Working Group II Report ("the Report"), upon which 

EPA relied so heavily in its Endangerment Finding. The flaws that have unleashed an 

international firestorm were not uncovered during the comment period, and thus EPA has 

not yet received comment on how IPCC's alleged missteps have impacted EPA's 

conclusions on climate change reached in its Endangerment Finding. 

2 
A. EPA Has Relied on IPCC's Report Without Criticism. 

The EPA issued the Endangerment Finding based in large measure upon climate 

information aggregated by IPCC and generated by CRU. By the time EPA's 

Administrator signed the Endangerment Finding on December 7, 2009, serious gaffes had 

already been unearthed in the methodology and conclusions of IPCC's Report. Rather 

than slow down its rush to climactic conclusion, though, EPA has instead plowed ahead 

with compromised data, undermining its core conclusions in the process. Following is a 

summary of EPA's flawed development of the Endangerment Finding. 

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court of the United 

States decided that the Clean Air Act required the EPA to determine whether or not it 

should issue an endangerment finding regarding the potential impact of climate change 

on human health. Prior to that high court decision, EPA had talcen the position that it had 

no institutional power to issue such a finding under the Clean Air Act because 

anthropomorphic global warming, if a reality, would of necessity be a worldwide, multijurisdictional phenomenon, and thus beyond the ability of the EPA to address within 

constrained Clean Air Act parameters. !d. at 512. 

The Supreme Court set no time table for the EPA to determine whether global 

warming trends impact human health, nor did the U.S. Court of Appeals for. the District 

of Columbia Circuit-the court from which Massachusetts v. EPA originated. On March 

27, 2008, the EPA Administrator wrote Congress to supply an update.3 The 

Administrator reported that EPA staff had been instructed to draft an Advance Notice of 

Proposed Rulemaking ("ANPR"), to be "issued later this spring." After the required 

3 Letter from Stephen L. Johnson to Congressman Edward Markey, March 27, 2008, available at 

http:// globa I warming.house.gov /too ls/assets/files/0451. pdf. 

3 
public comment period, the Administrator expected that"[t]he Agency will then consider 

how to best respond to the Supreme Court decision and its implications under the Clean 

Air Act."4 

On July 30, 2008, the EPA published the ANPR.5 It contains a summary of the 

scientific research conducted or supported by EPA to that date. Noting that the 

"implications of a decision to regulate GHG's under the [Clean Air] Act are so farreaching,"6 EPA included comments from other federal agencies in the body of the 

ANPR.7 It also solicited public comment on whether air pollution may reasonably be 

anticipated to endanger public health and welfare. 8 According to the EPA's disclosure in 

this July 30, 2008 notice, the Agency had not yet concluded that there existed a scientific 

correlation between human activity and impactful global warming. At this point, EPA 

and Executive Branch decision-makers had declined to act upon lower-level EPA 

recommendations. EPA also gave no indication at this juncture that it had commissioned, 

engaged, or relied to any significant degree on the work of IPCC, or any other climate 

organization, in formulating Agency opinion on this over-arching point. EPA was, at the 

time of the ANPR, uncertain about its climate conclusion. In fact, the Agency was using 

the ANPR to "seek comment on the best available science for purposes of the 

4 Letter from Stephen L. Johnson to Congressman Edward Markey, March 27, 2008, available at 

http://globalwarming.house.gov/tools/assets/files/0451.pdf (emphasis added). 

5 73 F.R. 44354. 

6 73 F.R. 44354. 

73 F.R. 44356-44389. 

73 F.R. 443555. 

4 
endangerment discussion, and in particular on the use of the more recent findings of the 

U. S. Climate Change Science Program."9 

The ANPR comment period closed on November 28, 2008. 10 The EPA began 

methodically parsing, digesting and sifting an outpouring of interest in this far-reaching 

1ssue. This period of planning, interconnection and dialogue did not last long. 

In a February 17, 2009 article, the Associated Press reported the new Obama 

Administration to be under pressure from the December 2009 Copenhagen climate 

summit fast-approaching. A burden befell the White House to exert on the world stage 

an American will to control greenhouse gases. That same press piece quoted the new 

EPA Administrator, Lisa Jackson, as follows: 

We are going to be making a fairly significant finding 

about what these gases mean for public health and the 

welfare of our country. . . . If EPA is going to talk and 

speak in this game, the first thing it should speak about is 

whether carbon dioxide and other greenhouse gases 

endanger human health and welfare. It is a very 

fundamental question. 11 

On April29, 2009, EPA did in fact release its proposed Endangerment FindingY 

This proposal was predicated not on the EPA staff science conclusions (upon which the 

previous EPA Administrator had also declined to act in 2008), or upon any independent 

work specially-commissioned by EPA. Rather, EPA predicated the Endangerment 

Finding on the published reports of IPCC. EPA chose to rely on the "major 

9 73 F.R. 44425. 

10 73 F.R. 44425. 

II AP Interview: EPA Near Ruling on Greenhouse Gasses, Dina Cappiello, Associated Press, 

available at http://abcnews.go.com/Politics/wireStory?id~6899971. 

12 74 F.R. 18886. 

5 
assessment[ s ]" of IPCC as proof of the science behind climate change, characterizing its 

work as a "robust and valuable reference" that essentially "serv[es] as a benchmark." 13 

Public comment of the EPAIIPCC effort ensued. Responses poured in, with 

upwards of 380,000 comments. 14 EPA timely terminated the process, rejecting on June 

17, 2009 requests to extend the period of inquiry15-likely so it could keep on pace for 

Copenhagen. With comment closed, EPA sifted responses, and set a course toward the 

release of its fmal rule. The process, like the IPCC peer-review research, was even and 

controlled, until problems arose in England. 

British law mandates strict disclosure of research data so scholars could have 

ample basis for peer review. In August of 2009, CRU tried fending off impatient 

researchers seeking its climate data by announcing that it no longer held the original raw 

support for its climate change datasets. CRU claimed that it only retained modified sets 

which CRU termed "value-added."16 Critics called this data dumping. CRU had 

received repeated requests to disclose data underlying its climate studies. 17 Protests to 

British authorities began. An expose by the Sunday Times (London) confmned the 

abuses at CRU. The paper documented the repeated requests for this divested data 

13 74 F.R. 18894. 

14 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under the Clean Air Act, 

http://www.epa.gov/climatechange/endangerment.h!ml. 

15 EPA Comment Period on 'Endangerment' Proposal Closes Tomorrow, Robin Bravender, E&E 

News (June 22, 2009). 

16 CRU Data Availability, Climate Research Unit, available at http://www.cru.uea.ac.uklcru/data/ 

availability. 

17 Climate Change Data Dumped, Jonathan Leake, Nov. 29, 2009, Times Online, available at 

http://www. timesonline.co. ukltoVnews/en vironmentlarticle693 6328.ece. 

6 
pursuant to the powerful British Freedom of Information Act. The British Information 

Commissioner's Office stepped in and ultimately found CRU in violation. 18 

Soon thereafter, other reports of falsification surfaced. In November 2009, an 

internationally recognized expert on Himalayan glaciers, V .K. Raina, produced a 

comprehensive study that totally contradicted IPCC reports on Himalaya glacier melts, 

showing those reports to be flimsily-documented exaggerations. Although Dr. Raina's 

report was initially dismissed by the IPCC chairman as "voodoo science," the author of 

the IPCC Report's chapter on Asia admitted in January 2010 that the Report had 

deliberately exaggerated the possible melt of the Himalayan glaciers. 19 

The misdeeds and bias harboring within the halls of East Anglia spilled out in a 

large way when whistleblowers began unmasking CRU practices, captured in CRU's own 

words. On November 19, 2009, CRU's internal email began leaking to the public, 

evidencing the clear pro-warming bias of IPCC members. Among those emails is a 

message from Dr. Keith Briffa, CRU Deputy Director and an IPCC lead author: "I tried 

hard to balance the needs of the science and the IPCC, which were not always the same .. 

,20 Other leaked discourse revealed cover-ups, plots, and plans coordinated in both 

Britain and the U.S. to suppress independent studies contrary to IPCC's conclusion of 

18 New Twist in UEA Climate Change Row, David Bale, Jan. 28, 2010, Norwich Evening 24, 

available at http://www.eveningnews24.co.uk/content/eveningnews24/norwich-news/story.aspx?brand~ 

ENOnline&category~News&tBrand~ENOnline&tCategory~xNews&itemid~NOED28%20Jan%202010% 

2010%3A05%3A43%3A370. 

19 Glacier Scientist: I knew data hadn't been verified, David Rose, Jan. 24, 2010, Daily Mail, 

available at http:/ /www.dailymail.co. uk/news/article-124563 6/Glacier-scientist-says-knew-dataverified.html; JPCC statement on the melting of Himalayan glaciers, Jan. 20, 2010, available at 

http:/ /www.ipcc.ch/pd£1presentations/himalaya-statement -20january20 I 0. pdf. 

20 Briffa, Keith. Email. April 24, 2007, available at http://www.eastangliaemails.com/emails.php? 

eid~794&filename~ 1177890796.txt (emphasis added). 

7 
human-caused global warming. One such email from Dr. Phil Jones, CRU Director, 

declares that a "troublesome editor" at a peer-reviewed journal should be gotten "rid of' 

because of an anti-climate change paper that editor approved to be published.Z1 These 

emails and others reveal that scientists authoring key chapters of the IPCC climate 

assessments crossed the line from a science rooted in neutrality to an advocacy promoting 

a results-basis. 

Phil Jones himself issued general denials of wrongdoing when the scrutiny first 

started, blaming criminal hackers, selective use of stolen internal emails, and a 

"concerted attempt to put a question mark over the science [undergirding] the 

Copenhagen talks."22 Despite the flap, Professor Jones retained his post at CRU, but only 

for a short while. On December 1, 2009, East Anglia announced Professor Jones would 

d di h ·23 step own pen ng t e rev1ew. Sir Muir Russell was appointed to head the 

investigation. The University disclosed it had asked for the results by "Spring 20 10," and 

promised public disclosure of the report and East Anglia' s rebuttal. 24 

Even though the East Anglia revelations and action proceeded her release of an 

Endangerment Finding by several weeks, the EPA Administrator nonetheless issued the 

Finding on December 7, 2009. The Administrator said the finding allowed the President 

21 Jones, Phil. Email. March 11, 2003, available at http://www.eastangliaemails.com/ 

em ails. php?eict~295&filename~ I 04 73 88489. txt. 

22 CRU update 2, Nov. 24, 2009, available at https://www.uea.ac.uklmac/comm/media/press/2009/ 

CRUupdate. 

23 CRU update 3, Dec. I, 2009, available at http://www.uea.ac.uklmac/comm./media/press/2009/dec/ 

CRUphiljones. 

24 Sir Muir Russell to head the Independent Review into the allegations against the Climate 

Research Unit (CRU), Dec. 3, 2009, available at http://www.uea.ac.uk/mac/comm./media/press/2009/dec/ 

CRUreview. 

8 
"to arrive at the climate talks in Copenhagen with a clear demonstration of [the United 

States'] commitment to face this global challenge."25 The Administrator did not mention 

the discredited IPCC report. 

Instead, in the preamble to the Endangerment Finding, EPA proudly announced 

that it relied upon the "major assessments" of IPCC for the "scientific and technical 

basis" of its Finding, and for support that the science of climate change is "sufficiently 

certain" to warrant broad-based regulatory action. 26 Throughout the document, EPA 

characterized IPCC's "scientific assessments" as one of "the best reference materials for 

determining the general state of knowledge on the scientific and technical issues before 

the agency in malcing an endangerment decision." The EPA lauded IPCC's methods, 

rigor, and integrity, calling the research "comprehensive," "in-depth," and-most 

damning--demonstrating "a high and exacting standard of peer review."27 

The Technical Support Document accompanying EPA's fmding quotes IPCC's 

Report for corroboration that "[w]arrning of the climate system is unequivocal."28 The 

TSD goes on to list in detail the warming trends in global temperatures identified by 

IPCC.29 EPA also cited computer models run by IPCC to assert that there is "no reason 

to expect that ... atmospheric levels of greenhouse gases will not continue to climb, and 

25 Copenhagen and the EPA's Unlikely Endangerment Finding Coincidence, Chris Morrison, Dec. 7, 

2009, available at http://industry.bnet.com/energyll 0002618/copeuhaven-and-the-epas-unlikely-endanger. 

74 F.R. 66500,66510. 

27 74 F.R. 66511. 

28 74 F.R. 66517. 

29 74 F.R. 66517. 

9 
thus lead to ever greater rates of climate change."3

° Finally, EPA relied upon IPCC's 

assessment reports to substantiate the existence of grave endangerment to the public 

welfare as a result of climate change, such as impacts to food production and 

agriculture, 31 the increase of forest fires, 32 alterations in the water cycle and sea levels, 33 

adverse effects on water quality/4 and consequences for biodiversity. 35 

Yet even since the Endangering Finding was issued, East Anglia widened the 

scope of its self-examining inquiry yet again, bowing to international outcry about the 

handling of peer review, and the criticism that has made the "findings of [its] researchers 

... the subject of significant debate in recent months." On February 11, 2010, the 

University announced a second independent inquiry, this one into the overall quality of 

the climate scholarship that has originated at East Anglia. This review will not inquire 

into "Climategate" per se, but rather into something far more serious: "an assessment 

considering the science itself."36 Guided by an as-yet-unannounced overseer, this inquiry 

will evaluate East Anglia's "key publications" for academic integrity, research discipline, 

30 74 F.R. 66518 (emphasis added). 

31 74 F.R. 66531-32. 

32 74 F.R. 66532. 

33 74 F.R. 66532-33. 

34 74 F.R. 66533-34. 

35 74 F.R. 66534. 

36 New scientific assessment of climate research publications announced, Feb. 11, 2010, available at 

https:l/www.uea.ac.uk/mac/comm/media!press/CRUstatements/New+scientific+assessment+of+climate+ 

research+publications+announced (emphasis added). 

10 
and efficacy of their scientific conclusions. This merits review "will be completed at the 

earliest date the assessors can manage." The findings will be made public.37 

Professor Jones, for his part, has become less predictive of the outcome of the 

investigations. Interviewed by the BBC on February 13, 2010, he responded as follows 

to key inquiries: 

Q: Where do you draw the line on the handling of data? 

What is at odds with acceptable scientific practice? Do you 

accept that you crossed the line? 

Prof. Jones: This is a matter for the independent review. 

Q: Now, on to the fallout from "Climategate," as it has 

become known. You had a leading role in a part of the 

IPCC, Working Group I. Do you accept that credibility in 

the IPCC has been damaged - partly as a result of your 

actions? Does the IPCC need reform to gain public trust? 

Prof. Jones: Some have said that the credibility in the 

IPCC has been damaged, partly due to the misleading and 

selective release of particular e-mails. I wish people would 

spend as much time reading my scientific papers as they do 

reading my e-mails. The IPCC does need to reassure 

people about the quality of its assessments. 38 

B. EPA Cannot Continue to Rationally Rely on IPCC's Report. 

Professor Jones' hopes notwithstanding, IPCC's work cannot be rehabilitated, nor 

can the EPA's Endangerment Finding. IPCC has been unmasked as an overt scientific 

organization with a covert political agenda of making the science conform to the desired 

result. Its report is anything but the "peer-reviewed" and "in-depth" scientific analysis 

37 New scientific assessment of climate research publications announced, Feb. 11, 2010, available at 

https://www.uea.ac.uk/mac/comm/medialpress/CRUstatements/New+scientific+assessment+of+climate+ 

research+publications+announced. 

38 Q&A: Professor Phil Jones, Feb. 13, 2010, available at http://news.bbc.co.uk/2/hi/science/ 

nature/8511670.stm (emphasis added). 

11 
that the Administrator deemed it to be. Case in point is the admission of Anton !meson, a 

former IPCC lead author. In public comments on February 8, 2010, !meson intoned that 

"government employees will use [the IPCC's report] to negotiate changes and [fashion] a 

redistribution of resources." !meson went on to say that the report was "not a scientific 

analysis of climate change." !meson suggested the IPCC admit this. He set out the 

following strategy for the organization: 

IPCC should change its name and become a part of 

something else. The IPCC should have never allowed 

itself to be branded as a scientific organization. It 

provides a review of published scientific papers but none 

of this is much controlled by independent scientists.39 

It is patently unreasonable for EPA to continue to insist that IPCC IS a scientific 

organization when its own members concede that it is not. 

IPCC has done nothing to amend its errant ways smce "Climategate." On 

December 15, 2009-the very day that EPA announced the Endangerment Finding-the 

Russian Institute of Economic Analysis ("lEA") reported that CRU probably tampered 

with Russian climate data and that the Russian meteorological station data do not support 

human-caused global warming. It was well established that CRU had dropped many 

Russian stations in the colder regions of the country presumably because these stations 

were no longer maintained. The lEA stated that, on the contrary, the stations still report 

temperatures but that CRU ignores the results. Only 25% of the temperature reporting 

stations in Russia are used in the Report, and they are in population centers that are 

influenced by the urban heat island effect. Rural areas were also ignored by CRU, giving 

the data a pro-warming bias. Given that Russia accounts for 12.5% of the world's land 

39 How to reform the IPCC, David Adam and Suzanne Goldenberg, Feb. 10, 2010, Guardian, 

available at http://www. guardian.co.uk/ envirorunent/20 I 0/feb/ I 0/ipcc-reform. 

12 
mass, the CRU dataset has been highly compromised, reporting global surface 

temperature trends that are unreliable and biased towards achieving a politically driven 

predetermined outcome. 40 

In late January 2010, additional information revealed that IPCC claims of 

warming's adverse effects in the Amazon rainforests and on coral reefs came from 

publications of environmental groups such as the World Wildlife Fund and Greenpeace. 

Further, claims of glacier melts in the Andes and the Alps came from anecdotal 

comments in a magazine article and a master thesis. Thus, any presumption that the 

findings in IPCC's report are based on peer-reviewed science became quickly 

m1sp . I d 41 ace . 

On February 7, 2010, the Sunday Times (London) reported on the extent to which 

false claims that warming will destroy rain-based agriculture in Africa permeate IPCC 

findings. The IPCC's Synthesis Report, which purports to "distill[ed] [IPCC's] most 

important science into a form accessible to politicians and policy malcers," claims that 

yields from rain-fed agriculture could be reduced by up to 50% in many African 

countries.42 IPCC's claim is not based on peer-reviewed science but instead a 2003 

40 What the Russian Papers Say, Dec. 16, 2009, Rianovosti, available at http://en.rian.ru/papers/ 

20091216/157260660.html. 

41 Amazongate: new evidence of the IPCC'sfailures, Christopher Booker, Jan. 30,2010, Telegraph, 

available at http./ /www. telegraph.co. uk/connnent/columnists/christopherbooker/7113 582/ Amazongatenew-evidence-of-the-IPCCs-failures.html; Greenpeace and the Nobel-Winning Climate Report, Donna 

Laframboise, Jan. 28, 2010, Nofrakkingconsensus, available at http://nofrakkingconsensus. 

blogspot.com/2010/0l/greenpeace-and-nobel-winning-climate_28.html; Editorial: Climate debate needs 

facts, not anecdotes, Feb. 3, 2010, NZ Herald, available at http://www.nzherald.eo.nz/worldlnews/ 

article.cfm?c _id~2&objectid~ I 0623715. 

42 Climate Change 2007: Synthesis Report - Summary for Policymakers, lPCC, available at 

http://www. ipcc. ch/pd£1 assessment-report/ar4/syr/ar4 _ syr _ spm.pdf. 

13 
policy paper from a Canadian think-tank. 43 Yet EPA cites this assertion in its Technical 

Support Document as support for its Endangerment Finding.44 

EPA cannot possibly continue to rely on a body of work that is under 

investigation by multiple entities around the world, has been discredited by standards 

organizations, and is admitted to be of questionable scientific import. EPA's own 

standards of conduct preclude this practice. In its manifesto on the "Role of Science at 

EPA," the Agency declares that "it is vital that the conduct of [Agency] research itself be 

independent and of the highest quality," with an emphasis on "open, transparent, and 

peer-reviewed research planning."45 The Association submits that the Agency cannot 

afford to rely on research and conclusions of another politically-motivated organization, 

when that organization's efforts would not meet the high standards established by the 

Agency for its own work product. 

Courts that extend deference to agency judgment draw the line at unreasonable 

agency action. See Am. Lung Assn. v. EPA, 134 F.3d 388, 392 (D.C. Cir. 1998). 

Agencies must act on "reasonable extrapolations" from "reliable evidence." Am. Mining 

Congress v. EPA, 907 F.2d 1179, 1187 (D.C. Cir. 1990). The Administrator was 

instructed by the Supreme Court to exercise "judgment" within the statutory parameters 

of§ 202(a) of the Clean Air Act, regardless of "policy" considerations. Massachusetts v. 

EPA, 549 U.S. 497, 533 (2007). Because EPA did not conduct an independent analysis 

43 

Times 

Africagate: top British Scientist says UN panel is losing credibility, Jonathan Leake, Feb. 7, 2010, 

Online, available at http://www.timesonline.co. uk/to l!news/environment/article70 17907 .ece. 

44 TSD Table 16.1, p. 162, available at http://www.epa.gov/climatechange/endangerment/downloads/ 

Endangerment_ TSD.pdf. 

45 "Role of Science at EPA," available at http://www.epa.gov/epahome/science.htm (emphasis 

added). 

14 
to substantiate its Endangerment Finding but rather put IPCC "policy" in that place, EPA 

must reconsider and withdraw its Endangerment Finding. 

III. IMPLEMENTING THE GHG REGULATIONS IS INFEASIBLE BASED 

ON THE ENDANGERMENT FINDING. 

A. EPA Identified Significant Negative Permitting Impacts in the 

Endangerment Finding but Erroneously Assumed It Could Remedy 

Them. 

EPA received numerous requests to consider the full range of possible 

ramifications-economic, public welfare, and efficiency-that would flow from the 

regulation of GHGs before issuing the final Endangerment Finding.46 In response, EPA 

described the "panoply of adverse consequences" that were predicted by commentators to 

occur as a result of such regulation.47 However, EPA ultimately declared in the fmal 

Endangerment Finding that the Administrator "must base her decision about 

endangerment on the science, and not on policy considerations about the repercussions or 

impact of such a finding." 48 While EPA professed to be limited by § 202 of the Clean 

Air Act and the Supreme Court's direction in Massachusetts v. EPA to considering only 

the "science" in making the Endangerment Finding, EPA did in fact honestly give 

credence and expression to one key negative impact-the implementation of GHG 

. . 49 permrttmg. 

In its forthright assessment of the permitting impact, EPA declared in the Finding 

that it "has the ability to fashion a reasonable and common-sense approach" to address 

46 74 P.R. 66515. 

47 74 P.R. 66516. 

48 74 P.R. 66515. 

49 74 P.R. 66516, n.17. 

15 
GHG issues.50 EPA explicitly cited, in particular, its proposed Tailoring Rule as an 

example of EPA's ability to limit GHG permit impacts by proposing new higher 

temporary permitting thresholds for GHG emissions that define when Prevention of 

Significant Deterioration ("PSD") and federal operating (Title V) permits are required for 

new or existing facilities. 5

1 

In the Tailoring Rule proposal referenced in the Endangerment Finding, EPA 

detailed the negative impacts that would inexorably flow from the Endangerment 

Finding-that is, the triggering of PSD and Title V permitting requirements at the low 

applicability levels provided under the Clean Air Act. EPA stated that because millions 

of new and modified sources of GHGs would require permits before construction could 

begin, unless the PSD and Title V permitting thresholds were changed, "[s]tate permitting 

authorities would be paralyzed by permit applications in numbers that are orders of 

magnitude greater than their current administrative resources could accommodate. "52 

EPA recognized the burden that would be placed on many sources of GHGs by 

the costs of individualized PSD control technology requirements and permit 

applications. 5

3 EPA knew the impossibility of administering the permitting programs and 

the overwhelming time and cost that would be associated with doing so. In fact, it 

declared that "the additional armual permitting burden for [state] permitting authorities, 

on a national basis, is estimated to be 3.3 million hours at a cost of $257 million to 

50 

51 

52 

53 

74 F.R. 665.16. 

74 F.R. 66516, n. 17. 

74 F.R. 55292, 55304. 

74 F.R. 55294. 

16 
include all GHG emitters above the 250-tpy [tons per year] threshold."54 In an amazing 

concession, EPA estimated that the average processing time for a GHG permit would 

swell to almost ten years. 55 Since PSD permits are pre-construction permits, this means 

each and every new project-industrial, utility, or otherwise-that could emit even 

nominal amounts of GHGs would not proceed for at least a decade, effectively ending 

economic growth. 

Under the existing Clean Air Act permitting thresholds for PSD and Title V, state 

permitting agencies would buckle under the load of permits necessitated by EPA's 

Endangerment Finding to regulate GHGs. The economy would grind to a halt. In 

commenting on the Tailoring Rule, the regulated community has predicted EPA's 

approach will result in unbearable uncertainty for applicants and permitting authorities 

alike. It will overwhelm the permitting system, and will effectively bring PSD and Title 

V . . d 56 penmttmg proce ures to a stop. 

To avoid the economic train wreck the Agency itself predicts, EPA issued the 

proposed Tailoring Rule on October 27, 2009, to "remedy" the situation. Relying on the 

statutory interpretation doctrines of "absurd results" and "administrative necessity" to 

alleviate the ridiculous administrative, financial, and time burdens that would otherwise 

arise from permitting requirements following GHG regulation based on the 

Endangerment Finding, EPA proposed to establish new emissions thresholds for the 

treatment of GHGs as a "pollutant." In the draft rule, EPA would set PSD and Title V 

74 F.R. 55295, 55301. 

55 74 F.R. 55303. 

56 Letter of Public Comment, Docket No. OAR-2009-0472, National Mining Association, November 

27,2009. 

17 
major source thresholds of 25,000 TPY of carbon dioxide equivalent ("C01e"), and a 

major modification threshold (and significance level) between 10,000 and 25,000 TPY of 

C01e. These thresholds will be used to determine whether a facility's GHG emissions 

trigger applicability of the PSD and Title V programs. Absent the Tailoring Rule, the 

Clean Air Act would require PSD standards to apply to all stationary sources emitting 

more than 250 tons per year of C01, and Title V would apply to all stationary sources 

emitting more than 100 tons per year of C02. 

EPA did in fact consider the widespread and economically crippling permitting 

impacts that would result from the Endangerment Finding, but naively assumed that this 

chaos could be averted by devising an administrative remedy. In comments filed after 

EPA issued its final Endangerment Finding, the state permitting agencies actually 

responsible for issuing PSD and Title V permits flatly declared EPA's proposed tailoring 

rule to be dead-on-arrival, and insufficient to address the negative economic impacts of 

the Endangerment Finding. These state authorities have astutely pointed out that the 

Tailoring Rule will not work because EPA does not have the ability to change state law, 

which is a necessary component to provide relief from the dire impacts set in motion by 

EPA. 

B. The Tailoring Rule Fails to Prevent a Widespread Negative Economic 

Impact. 

State environmental agencies, under their respective State Implementation Plans 

("SIPs"), are charged with processing and issuing Title V and PSD permits. However, 

EPA's "tailoring" proposal provides an absurdly truncated time for a state agency that 

operates pursuant to a SIP to increase its statutory and regulatory emissions thresholdswhich have the force of law within that state's borders. If states are not provided 

18 
adequate time to modify their regulations, then the lower thresholds of I 00 or 250 TPY 

would apply in those local programs, and the "administrative impossibility and absurd 

results" that EPA seeks to avoid would in fact occur regardless. This contention was 

made by the state officials themselves during the comment period for the Tailoring Rule. 

They uniformly argue that EPA's proposed rule will not in actuality achieve its objective 

of avoiding "absurd" results.57 

State environmental agencies, under their respective State Implementation Plans 

("SIPs"), will be charged with enforcing these regulatory requirements. EPA's 

"tailoring" proposal provides way too little time for state agencies that operate pursuant 

to SIPs to increase their statutory and regulatory emissions thresholds-which have the 

force of law within state borders-so as to be able to reduce the administrative burden on 

the state level. If states are provided inadequate time to modify their regulations, then the 

lower thresholds of I 00 or 250 TPY will apply in those programs, and the "administrative 

impossibility and absurd results" that EPA seeks to avoid in its rule are likely to occur in 

those states. This contention was made by the state officials themselves during the 

comment period for the Tailoring Rule who, as the actual GHG permitting authorities, 

argue that EPA's proposed rule will not in actuality achieve its objective. 5

8 

The National Association of Clean Air Agencies ("NACAA") specifically 

commented that in "each SIP-approved state, the thresholds will remain at I 00/25 0 tpy 

57 See, e.g., Letter of Public Comment, Docket No. OAR-2009-0517, State of Ohio Envirorunental 

Protection Agency, December 22, 2009; Letter of Public Comment, Docket No. OAR-2009-0517, 

Northeast States for Coordinated Air Use Management, December 22, 2009. 

58 See, e.g., Letter of Public Comment, Docket No. OAR-2009-0517, State of Ohio Envirorunental 

Protection Agency, December 22, 2009; Letter of Public Comment, Docket No. OAR-2009-0517, 

Northeast States for Coordinated Air Use Management, December 22, 2009. 

19 
until and unless state law and/or regulations are modified."59 NACAA further opined that 

few if any states would be able to modify their state laws or regulations to adjust the 

thresholds in the near-term, and suggested states would need about fifteen months or 

more to resolve the situation. NACAA concluded that "under EPA's proposal and based 

on EPA's estimates, tens of thousands of PSD permits will need to be issued, and 

millions of Title V permit applications will need to be submitted by June 2011, to allow 

business to function normally."60 

Others have echoed these concerns. One group of state permitting agencies 

declared that state rulemaking processes require at least twelve, and in some cases many 

more, months to complete.61 The State of Ohio Environmental Protection Agency was 

equally emphatic, declaring: 

59 

What U.S. EPA lacks is an appreciation of the issues that 

will arise on the state level if U.S. EPA goes forward with 

this approach without providing adequate time for the 

transition to permitting GHGs. There must be a recognition 

by the federal government that having a rule immediately 

effective will place states in the position of having either to 

advise entities to violate state rules or the state agencies 

will be inundated with paperwork that serves no useful 

purpose .... The day that U.S. EPA makes the rule 

effective means that sources will need to comply with the 

lower state threshold even if U.S. EPA has modified the 

federal rules. The federal government should not put states 

in that position. U.S. EPA must grant states adequate time 

to modify state requirements .... The same issues that U.S. 

EPA raise on a federal level about absurd results apply on 

Letter of Public Comment, Docket No. OAR-2009-0517, National Association of Clean Air 

Agencies, December 28, 2009, at 3. 

60 !d. 

61 Letter of Public Comment, Docket No. OAR-2009-0517, Northeast States for Coordinated Air 

Use Management, December 22, 2009. 

20 
the state level and U.S. EPA needs to grovide states with 

adequate time to change laws and rules. 2 

Even if EPA's Tailoring Rule could be implemented quickly on a state-by-state 

basis, the economic impacts of the Endangerment Finding would still be harsh, both for 

public and private concerns. Thousands of stationary sources will still be subject to new 

federal regulatory requirements, and even if states could conform their own laws to the 

Tailoring Rule, most anticipate that the number of permit actions that would remain 

under EPA's proposed thresholds for GHGs will be far greater than estimated by EPA. 

States, such as Ohio, which are now feeling the heaviest impact of the latest economic 

recession are faced with the impossible task of drumming up sufficient administrative 

resources to handle the inevitable increase in worldoad. EPA has the responsibility of 

ensuring that state and local permitting authorities have adequate resources in place to 

address the additional permitting worldoad that flows from an Endangerment Finding 

before making a sweeping determination in such a hurried and unwise fashion. 

Furthermore, the "tailored" thresholds proposed by EPA are still very low for 

most industrial sources,. especially for coal producers such as the Association's 

membership.63 As EPA !mows, the U.S economy is powered by hydrocarbon fuels such 

as coal.64 Coal is fundamental to how this nation produces electricity, with 

62 Letter of Public Comment, Docket No. OAR-2009-0517, State of Ohio Environmental Protection 

Agency, , December 22, 2009 at p. 2. 

63 Letter of Public Comment, Docket No. OAR-2009-0517, North American Coal Corporation, 

December 28, 2009. 

64 Letter of Public Comment, Docket No. OAR-2009-0517, Ohio Coal Association, December 28, 

2009. 

21 
approximately 50 percent of the country's electricity derived from combusting coal.65 In 

the state of Ohio, coal-based generation supplies more than 87% of Ohio's energy needs. 

The Association's membership sells coal to customers throughout the United States, 

providing some of the highest paying jobs in areas of severe unemployment. The trickledown effect of Ohio's and the country's coal-industry is beneficial to all Americans' 

broader economy and welfare. 

EPA has already predicted the impacts of GHGs as regulated pollutants under the 

Clean Air Act as "overwhelming" and "paralyzing" to state permitting agencies, 

producing "multi-year permitting bacldogs."66 The most viable and sensible option 

would be for EPA to withdraw its Endangerment Finding so that the GHG permitting 

impacts that have been raised by the states be closely, carefully, and responsibly assessed. 

IV. CONCLUSION 

For all of the foregoing reasons contained in this Supplemental Petition, EPA 

should convene a proceeding to reconsider, stay, and/or withdraw the Endangerment 

Finding. 

Respectfully submitted this 16th day ofF ebruary, 2010. 

65 "Materials Characterization Paper in Support of the Advanced Notice of Proposed RulemakingIdentification of Nonhazardous Materials that are Solid Waste Coal Combustion Products- Coal Fly Ash, 

Bottom Ash, and Boiler Slag," EPA, Dec. 17, 2008, available at http://www.epa.gov/waste/nonhaz/pdfs/ 

ccpash. pdf. 

66 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 F.R. 

55294-95 (Oct. 27, 2009). 

22 
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23