Inre: BEFORETHEUNITED STATES ENVIRONMENTALPROTECTIONAGENCY
EPADocketNo. Endangerment and Cause orContribute Findings for Greenhouse Gases Under Section 202(a) ofthe CleanAirAct ) ) ) ) ) EPA-HQ-OAR-2009-0171

PETITION FORRECONSIDERATIONAND WITHDRAWAL OF EPA'S

ENDANGERMENTAND CAUSE ORCONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEAN AIRACT Filedby THE OHIO COALASSOCIATION ScottC. Oostdyk McGuireWoods LLP One James Center 901East Cary Street Richmond, Virginia 23219 804.775.1000 Gordon R. Alphonso McGuireWoods LLP The Proscenium 1170 Peachtree StreetN.E., Suite 2100 Atlanta, Georgia 30309 404.443.5500 Neal J. Cabral McGuireWoods LLP Washington Square 1050 ConnecticutAvenue N.W., Suite I200 Washington, D.C. 20036 202.857.1700 Virginia L. H. Nesbitt McGuireWoods LLP One James Center
. 90I EastCary Street Richmond, Virginia 23219 804.775.1000 Counselto The Ohio CoalAssociationPETITION FORRECONSIDERATION AND WITHDRAWAL OF EPA'S ENDANGERMENTAND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEANAIRACT

TABLE OF CONTENTS I. INTRODUCTION
.........................................................................! II. LEGAL STANDARD
.....................................................................2 III. THE PRE-DETERMINED SCIENTIFIC "BASIS"FORTHE ENDANGERMENT FINDING
.........................................................4 IV. THE INFEASIBILITY OF IMPLEMENTINGTHE GHGREGULATIONS BASED ONTHEENDANGERMENTFINDING
...................................6 V. CONCLUSION
............................................................................9

11

### I. INTRODUCTION Pursuant to Section 307(d) ofthe 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) ofthe Clean Air Act, Final Rule" published by the Agency
on December 15,2009 (74 P.R. 66496, Dec. 15, 2009) ("the EndangermentFinding"). The Association's petition is based on the release ofemail and other information from the University of East Anglia ("UEA'') Climatic Research Unit ("CRU") in November oflast year. The CRU informationundermines a number ofthe 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 ofthe Endangerment Finding, EPA specifically noted that it relied upon the "majorassessments" ofIPCC for the "scientific and technical basis" ofthe decision. 1 

### By casting IPCC as a prominent intellectual pillar ofthe Agency's work, EPA vouched for this organization and predicated the reliability ofits own work on the integrity ofIPCC. 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: "Itried hard to balance the needs ofthe 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 ofthis new and extremely disconcerting information from CRU-given the EPA's admittedreliance on CRU and IPCCresearch. 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 ofthe 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 ofthe plausibility ofEndangerment Finding. Considering the implications ofboth 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) ofthe Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), states in relevantpart: Ifthe 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 ofcentral relevance to the outcome ofthe rule, the Administrator shall convene a proceeding for reconsideration ofthe rule and providethe same procedural rights as would have been afforded had the information been available atthe 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 commentonthe EndangermentFinding, and (2) thatthe objection is of"central relevance to the outcome ofthe rule." The first element is easily met with respect to both ofthe 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 ofthe 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 aresult ofthe EndangermentFinding. 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 consistencyofthose provisions with the Act and with fundamental standards ofreasoned agency decision-making. This challenged error is "so serious"thatthere 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 ofthe purported scientific
consensus on which EPA relies, the factual dataupon which the EndangermentFinding 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 ofthe American public. EPA should further explore the extent to which implementation ofthe Endangerment Finding is practically impossible under State Implementation Plans, since impossibility calls into question alljustificationforthe EndangermentFinding. 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" ofthe Endangerment Rule. The Association submits that an affirmative conclusionis 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 onnew 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 itsjudgment 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 thatbecame 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 ofmodel results by individual authors and by IPCC."3 

### Because EPA elected to outsource its obligation to make a "judgment" as to whether GHGs may endangerpublic health and welfare to the IPCC, EPA should reconsider and withdrawits 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 ofthe 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 plannedto present.5 

### What is more, they refused to disclose underlying data concerningthe studies in which they were involved to third parties who might use the information as critique. Moreover, they engaged in a wide variety ofallegedly improper and questionable tactics to manipulate the type of scientific information that appeared both in the IPCC reports and in the peer-reviewed scientificjournals upon which the IPCC largely relied. Finally,
Wigley, Tom. Email. Oct. 14, 2007, available at

**http://www.eastangliaemails.com/emails.php?eid~**I057

**&filenam~**1255553034.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 ofits "poorly substantiated estimates ofthe rate of recession and the date for the disappearance ofHimalayan 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 ofa process that was far from neutral and robust, but rather promotedpolicy goals admittedly pursued by a group thathas 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 ofclimate science. Since these reports were relied on extensively in the EndangermentFinding, the Agency has no choice but to conclude that the Endangerment Finding itselfis now tainted, and must be withdrawn. EPA must either develop its own scientific assessments or justifY why it continuesto rely on IPCC's questioned reports. IV. THE INFEASIBILITY OF IMPLEMENTING THE GHG REGULATIONS BASED ONTHE ENDANGERMENT FINDING 

### State environmental permitting agencies have pointed out the impossibility ofthe permitting scheme that will necessarily follow from EPA's Endangerment Finding with respect to GHGs. Once an EndangermentFinding is issued, and GHGs becomeregulated "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 IPCCstatementon the meltingof Himalayanglaciers, Jan. 20, 20I0, available at http://www.ipcc.ch/pdf/presentationslbimalaya-statement-20january201O.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 CleanAir Act. The assessment comes from the very officials that will be compelledto implementEPA'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 ofGHGs. 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 oflaw 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 ofPublic Comment, DocketNo. OAR-2009-0517, NationalAssociation ofClean Air Agencies, December28, 2009. Prevention ofSignificantDeterioration and Title V Greenhouse Gas Tailoring Rule, 74 F.R. 55294-95 (Oct. 27, 2009). 9 See AlabamaPower Co. v. Castle, 636 F.2d323 (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 thatEPA'sproposed rule will not in actuality achieve its objective ofavoiding absurd results. 11 

### These states have proposed various alternative solutions to the Tailoring Rule, all ofwhich 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 ifstates could conform their own laws to the Tailoring Rule, most states anticipate that the number ofpermit 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 ofthe 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 onthe work ofaresults-oriented advocacy group like IPCC. The very permitting authorities who will be obligated to implement GHG permitting because ofEPA's Endangerment fmding have emphasized in their comments

II SeeLetter ofPublic Comment, DocketNo. OAR-2009-0517, National Association ofCleanAir Agencies, December28, 2009. 8to 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 ofthe EndangermentFinding. 

### V. CONCLUSION For all ofthe foregoing reasons, EPA should convene a proceeding to reconsider, stay, and/or withdrawthe EndangermentFinding. Respectfully submittedthis 12thday ofFebruary, 2010.

\10674011.1

# Atto~et(~eO~ Sco'tt C. Oostdyk McGuireWoods LLP One James Center 901 East Cary Street Richmond, Virginia 23219 804.775.1000 Gordon R. Alphonso McGuireWoods LLP TheProscenium 1170 Peachtree StreetN.E., Suite 2100 Atlanta, Georgia 30309 404.443.5500 Neal J. Cabral McGuireWoods LLP Washington Square 1050 ConnecticutAvenueN.W., Suite 1200 Washington, D.C. 20036 202.857.1700 VirginiaL. H. Nesbitt McGuireWoods LLP One James Center 90I East Cary Street Richmond, Virginia 23219 804.775.1000 Counselto The Ohio CoalAssociation

9BEFORE THEUNITED STATES ENVIRONMENTAL PROTECTION AGENCY In re: Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) oftheCleanAir Act ) ) ) ) ) EPADocketNo. EPA-HQ-OAR-2009-0171



## ______________________ ) SUPPLEMENTAL PETITION FORRECONSIDERATION AND WITHDRAWAL OF EPA'SENDANGERMENTAND CAUSE OR CONTRIBUTE FINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEANAIRACT Filedby THE OHIO COALASSOCIATION ScottC. Oostdyk McGuireWoods LLP OneJames Center 901 EastCary Street Richmond, Virginia 23219 804.775.1000 GordonR. Alphonso McGuireWoods LLP TheProscenium 1170 Peachtree StreetN.E., Suite 2100 Atlanta, Georgia 30309 404.443.5500 Neal J. Cabral McGuireWoods LLP Washington Square 1050 ConnecticutAvenueN.W., Suite 1200 Washington, D.C. 20036 202.857.1700 VirginiaL. H. Nesbitt McGuireWoods LLP One James Center 901 EastCary Street Richmond, Virginia 23219 804.775.1000 Counselto The Ohio CoalAssociationSUPPLEMENTAL PETITION FORRECONSIDERATION AND WITHDRAWAL OF EPA'S ENDANGERMENTAND CAUSE ORCONTRIBUTEFINDINGS FOR GREENHOUSE GASES UNDER SECTION 202(a) OF THE CLEANAIRACT

TABLE OF CONTENTS I. INTRODUCTION.........................................................................1 II. EPAHAS FAILED TO NEGATEPOINTED CRITICISMS OF IPCC'S REPORTTHATINVALIDATETHE ENDANGERMENT FINDING....................................................................................2 A. EPAHasRelied on IPCC'sReportWithout Criticism.........................3 B. EPA CannotContinuetoRationally Rely on IPCC's Report...............11 III. IMPLEMENTINGTHE GHG REGUATIONS IS INFEASIBLE BASED ONTHEENDANGERMENTFINDING...................................15 A. EPA Identified SignificantNegative PermittingImpacts inthe EndangermentFinding butErroneouslyAssumed ItCould RemedyThem......................................................................15 B. The Tailoring Rule Fails to Prevent a WidespreadNegative Economic Impact....................................................................18 IV. CONCLUSION............................................................................22

iiI. INTRODUCTION Pursuant to Section 307(d) ofthe Clean Air Act, 42 U.S.C. § 7607(d), the Ohio Coal Association ("the Association") hereby supplements its original Petition for Reconsideration ofthe "Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) ofthe Clean Air Act, Final Rule" published by the Agency
onDecember 15,2009 (74 F.R. 66496, Dec. 15, 2009) ("the EndangermentFinding"). 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 ofEPA's core conclusions in its EndangermentFinding, therelease ofemailsfrom theUniversity ofEastAnglia ("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'sEndangerment Finding. The supplemental petition also details the world-wide criticisms ofIPCC's conclusions regarding climate change, and the perception thatthe United States ofAmerica, throughEPA'sconclusions 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 predicatedthe reliability ofits ownwork onthe integrity ofIPCC. The CRU admissions,
as well as the true nature and source ofIPCC's data, damage the integrity ofthe IPCC

The Ohio Coal Association's initialpetition 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 ofthe EndangermentFinding. 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 ofthe 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 TailoringRule. The Association respectfully submits that EPAmustreexamine the plausibility of the Endangerment Finding. Considering the way the world is looking askance at the EPA's use of science right nowand how the government officials ultimately to be charged with implementing the EPA's Tailoring Rule are doubting the basic legitimacy ofthatrule, to refuse to do so wouldbenon-rational, arbitrary, and capricious. 

### II. EPA HAS FAILED TO NEGATE POINTED CRITICISMS OF IPPC'S REPORT THAT INVALIDATE THEENDANGERMENT 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 commentperiod, and thus EPA has not yet received comment on how IPCC's alleged missteps have impacted EPA's conclusions onclimate change reached inits EndangermentFinding.

2A. EPAHas Relied on IPCC's ReportWithout 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 signedthe EndangermentFindingonDecember7, 2009, serious gaffes had already been unearthed in the methodology and conclusions ofIPCC's Report. Rather than slow down its rushto climactic conclusion, though, EPA has instead plowed ahead with compromised data, undermining its core conclusions in the process. Following is a summary ofEPA'sflawed development ofthe EndangermentFinding. InMassachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court ofthe 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 ofclimate change
on humanhealth. Priorto thathigh courtdecision, EPAhadtalcen the positionthat ithad
no institutional power to issue such a finding under the Clean Air Act because anthropomorphic global warming, ifa reality, would ofnecessity be a worldwide, multijurisdictional phenomenon, and thus beyond the ability ofthe EPA to address within constrained CleanAirActparameters. !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 ofAppeals for. the District ofColumbia Circuit-the courtfrom whichMassachusetts v. EPA originated. On March 27, 2008, the EPA Administrator wrote Congress to supply an update.3 The Administrator reported that EPA staffhad 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://globaI warming.house.gov/tools/assets/files/0451.pdf. 3public 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 AirAct."4 On July 30, 2008, the EPA published the ANPR.5 Itcontains a summary ofthe 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 endangerpublic health and welfare.8 Accordingto the EPA's disclosure in this July 30, 2008 notice, the Agencyhad not yet concluded thatthere 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 thisjuncturethat it had commissioned, engaged, or relied to any significant degree on the work ofIPCC, or any other climate organization, in formulating Agency opinion on this over-archingpoint. EPA was, at the time ofthe ANPR, uncertain aboutits 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.
4endangerment discussion, and in particular on the use ofthe more recent findings ofthe U. S. Climate Change ScienceProgram."9 The ANPR comment period closed on November 28, 2008. 10 The EPA began methodically parsing, digesting and sifting an outpouring ofinterest in this far-reaching 1ssue. Thisperiod ofplanning, interconnection and dialogue didnotlast 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 onthe world stage
an American will to control greenhouse gases. That same press piece quoted the new EPA Administrator, LisaJackson, 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. . . . IfEPA 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 staffscience 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.
5assessment[s]" ofIPCC as proofofthe science behind climate change, characterizing its work as a "robust and valuablereference"that essentially "serv[es] as abenchmark." 13 Public comment of the EPAIIPCC effort ensued. Responses poured in, with upwards of380,000 comments. 14 EPA timely terminated the process, rejecting on June 17, 2009 requests to extend the period ofinquiry 15-likely so it could keep on pace for Copenhagen. With comment closed, EPA sifted responses, and set a course toward the release ofits fmal rule. The process, like the IPCC peer-review research, was even and controlled, until problems arose inEngland. British law mandates strict disclosure of research data so scholars could have ample basis for peer review. In August of 2009, CRUtried 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 claimedthat 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 Underthe 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/environmentlarticle6936328.ece.
6pursuant to the powerful British Freedom ofInformation Act. The British Information Commissioner's Office steppedinand ultimately found CRUinviolation. 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 exaggeratedthe possible melt ofthe Himalayan glaciers. 19 The misdeeds and bias harboring within the halls ofEast Anglia spilled out in a large waywhen whistleblowers beganunmasking CRUpractices, 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: "Itried hard to balancetheneeds ofthe science and the IPCC, whichwere 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-1245636/Glacier-scientist-says-knew-dataverified.html; JPCC statement on the melting ofHimalayan glaciers, Jan. 20, 2010, available at http:/ /www.ipcc.ch/pd£1presentations/himalaya-statement-20january20I0.pdf.

20 Briffa, Keith. Email. April 24, 2007, available at http://www.eastangliaemails.com/emails.php?**eid~794&filename~**1177890796.txt (emphasis added).
7human-caused global warming. One such email from Dr. 

### Phil Jones, CRU Director, declares that a "troublesome editor" at a peer-reviewedjournal 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 crossedthe line from a science rooted in neutralityto an advocacy promoting
a results-basis. 

### Phil Jones himselfissued general denials ofwrongdoing 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 Copenhagentalks."22 Despite the flap, ProfessorJones retainedhis postat CRU, butonly 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. TheUniversitydisclosed it had asked for the resultsby "Spring 2010," and promisedpublic disclosure ofthe report and EastAnglia'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/ emails.

**php?eict~295&filename~**I047388489.txt. 22 CRU update 2, Nov. 24, 2009, available at https://www.uea.ac.uklmac/comm/media/press/2009/ CRUupdate.
23 CRUupdate 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" ofits Finding, and for support that the science ofclimate 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 ofknowledge 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 "ahigh and exacting standard ofpeerreview."27 The Technical Support Document accompanying EPA's fmding quotes IPCC's Report for corroboration that "[w]arrning ofthe 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 expectthat
... atmospheric levels ofgreenhouse gases will not continue to climb, and

25 Copenhagen andthe EPA's UnlikelyEndangermentFinding Coincidence, Chris Morrison, Dec. 7, 2009, available athttp://industry.bnet.com/energyll0002618/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.
9thus 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 offorest fires,32 alterations in the water cycle and sea levels,33 adverse effects onwater 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 ofpeerreview, and the criticismthat has made the "findings of [its] researchers

... the subject of significant debate in recent months." On February 11, 2010, the University announced a secondindependent 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 Guidedby an as-yet-unannounced overseer, this inquiry will evaluateEastAnglia's "keypublications" for academic integrity, research discipline,

30 74 F.R. 66518 (emphasis added). 31 74F.R. 66531-32.
32 74F.R. 66532. 33 74 F.R. 66532-33.
34 74 F.R. 66533-34. 35 74F.R. 66534.
36 New scientific assessment of climate researchpublications 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).
10and efficacy oftheir scientific conclusions. This merits review "willbe completed at the earliest date the assessors canmanage." The findings will be madepublic.37 Professor Jones, for his part, has become less predictive ofthe outcome ofthe investigations. Interviewed by the BBC on February 13, 2010, he responded as follows to keyinquiries: Q: Where do you draw the line on the handling ofdata? What is at odds with acceptable scientific practice? Do you acceptthatyou crossedthe line? Prof. Jones: This is a matter for the independentreview. 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? Doesthe IPCC need reform to gainpublictrust? Prof. Jones: Some have said that the credibility in the IPCC has been damaged, partly due to the misleading and selective release ofparticular 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. ProfessorJones' hopes notwithstanding, IPCC's work cannotberehabilitated, nor
can the EPA's Endangerment Finding. IPCC has been unmasked as an overt scientific organization with a covert political agenda ofmaking the science conform to the desired result. Its report is anything but the "peer-reviewed" and "in-depth" scientific analysis

37 New scientific assessmentof climate researchpublications 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).
11that the Administrator deemed it to be. Case inpoint is the admission ofAnton !meson, a former IPCC lead author. In public comments on February 8, 2010, !meson intoned that "government employees will use [the IPCC'sreport] to negotiate changes and [fashion] a redistribution ofresources." !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 ofpublished scientific papers but none ofthis is much controlledby independent scientists.39 It is patently unreasonable for EPA to continue to insist that IPCC IS a scientific organizationwhenits own members concedethat itis 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 ofEconomic 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 ofthe 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% ofthe temperature reporting stations in Russia are used in the Report, and they are in population centers that are influencedby the urbanheat island effect. Rural areas were also ignoredby CRU, giving the data a pro-warming bias. Given that Russia accounts for 12.5% ofthe world's land

39 How to reform the IPCC, David Adam and Suzanne Goldenberg, Feb. 10, 2010, Guardian, available athttp://www.guardian.co.uk/envirorunent/20I0/feb/I0/ipcc-reform.
12mass, 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 ofenvironmental 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

. I d 41 m1sp ace . On February 7, 2010, the Sunday Times (London) reported on the extentto 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/7113582/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~**I0623715.
42 Climate Change 2007: Synthesis Report

- Summary for Policymakers, lPCC, available at http://www.ipcc.ch/pd£1assessment-report/ar4/syr/ar4
_syr _spm.pdf.
13policy paper from a Canadianthink-tank.43 Yet EPA cites this assertion in its Technical SupportDocumentas supportfor its EndangermentFinding.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 ofconduct preclude this practice. In its manifesto on the "Role ofScience at EPA," the Agency declares that "itis vital that the conduct of [Agency] research itselfbe 

### independent and 

### ofthe 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 ofanother politically-motivated organization, when that organization's efforts would not meet the high standards established by the Agency for its own workproduct. 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) ofthe 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 Scientistsays UNpanel is losing credibility, Jonathan Leake, Feb. 7, 2010, Online, available at http://www.timesonline.co.uk/tol!news/environment/article7017907.ece. 44 TSD Table 16.1, p. 162, available athttp://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). 14to substantiate its EndangermentFinding but rather put IPCC "policy" in thatplace, EPA mustreconsider and withdrawits EndangermentFinding. III. IMPLEMENTING THE GHG REGULATIONS IS INFEASIBLE BASED ON THEENDANGERMENT 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 ofGHGs before issuing the final Endangerment Finding.46 In response, EPA described the "panoply ofadverse 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 onthe science, and notonpolicy considerations aboutthe repercussions or impact ofsuch a finding."48 While EPA professed to be limited by § 202 ofthe 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 ofthe permitting impact, EPA declared inthe Finding that it "has the ability to fashion a reasonable and common-sense approach" to address

46 74P.R. 66515. 47 74 P.R. 66516. 48 74P.R. 66515. 49 74P.R. 66516, n.17.
15GHG 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 SignificantDeterioration ("PSD") and federal operating (Title V) permits are required for
new or existingfacilities.51 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 ofPSD and Title V permitting requirements at the low applicability levels provided under the Clean Air Act. EPA stated that because millions ofnew and modified sources ofGHGs would require permits before construction could begin, unless the PSD andTitle V permittingthresholds were changed, "[s]tatepermitting authorities would be paralyzed by permit applications in numbers that are orders of magnitude greater thantheir current administrativeresources 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.53 EPAknew the impossibility ofadministering 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. 74F.R. 55292, 55304. 74F.R. 55294.
16include 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 CleanAir Actpermittingthresholds 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. Itwill overwhelm the permitting system, and will effectively bring PSD and Title V . . d 56 penmttmgproce 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 ofGHGs as a "pollutant." Inthe draft rule, EPA would set PSD and Title V

74 F.R. 55295, 55301. 55 74 F.R. 55303. 56 Letter ofPublic Comment, DocketNo. OAR-2009-0472, NationalMining Association, November 27,2009. 17major source thresholds of 25,000 TPY of carbon dioxide equivalent ("C01e"), and a majormodificationthreshold (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 ofthe 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 ofC02. 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 declaredEPA'sproposedtailoring 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 nothave the ability to change state law, which is a necessary component to provide relieffrom 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

18adequate time to modify their regulations, then the lower thresholds of I00 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 bythe state officials themselves during the commentperiod for the Tailoring Rule. They uniformly argue thatEPA'sproposedrule will not in actuality achieve its objective ofavoiding "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 oflawwithin state borders-so as to be able to reduce the administrative burden on the state level. Ifstates are provided inadequate timeto modify their regulations, thenthe lowerthresholds ofI00 or 250 TPYwill apply inthoseprograms, andthe "administrative impossibility and absurdresults" thatEPA 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, arguethatEPA'sproposedrule willnotinactuality achieve its objective.58 The National Association of Clean Air Agencies ("NACAA") specifically commented that in "each SIP-approved state, the thresholds will remain at I00/250 tpy

57 See, e.g., Letter ofPublic Comment, Docket No. OAR-2009-0517, State ofOhio Envirorunental Protection Agency, December 22, 2009; Letter of Public Comment, Docket No. OAR-2009-0517, Northeast States for CoordinatedAirUse Management, December22, 2009.
58 See, e.g., Letter ofPublic Comment, Docket No. OAR-2009-0517, State ofOhio Envirorunental Protection Agency, December 22, 2009; Letter of Public Comment, Docket No. OAR-2009-0517, Northeast States for CoordinatedAirUseManagement, December 22, 2009.
19until and unless state law and/or regulations are modified."59 NACAAfurther opinedthat 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 concludedthat "under EPA's proposal and based
on EPA's estimates, tens of thousands of PSD permits will need to be issued, and millions ofTitle V permit applications will need to be submitted by June 2011, to allow businessto 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 ofOhio Environmental Protection Agency was equally emphatic, declaring:

59 What U.S. EPA lacks is an appreciation ofthe issues that will arise on the state level ifU.S. EPA goes forward with this approach without providing adequate time for the transition to permitting GHGs. There mustbe arecognition by the federal government that having a rule immediately effective will place states in the position ofhaving 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 notput states in thatposition. U.S. EPA must grant states adequate time to modify state requirements
.... The same issues thatU.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, at3.
60 !d.
61 Letter of Public Comment, Docket No. OAR-2009-0517, Northeast States for Coordinated Air Use Management, December22, 2009.
20the state level and U.S. EPA needs togrovide states with adequatetimeto change laws and rules. 2 Even ifEPA's Tailoring Rule could be implemented quickly on a state-by-state basis, the economic impacts ofthe Endangerment Finding would still be harsh, both for public and private concerns. Thousands ofstationary 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 ofthe 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 sweepingdetermination in such ahurried 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 ofPublic Comment, DocketNo. OAR-2009-0517, State ofOhio Environmental Protection Agency, ,December22, 2009 atp. 2.
63 Letter of Public Comment, Docket No. OAR-2009-0517, North American Coal Corporation, December28, 2009.
64 Letter ofPublic Comment, Docket No. OAR-2009-0517, Ohio Coal Association, December 28, 2009.
21approximately 50 percent ofthe country's electricity derived from combusting coal.65 In the state ofOhio, coal-based generation supplies more than 87% ofOhio's energy needs. The Association's membership sells coal to customers throughout the United States, providing some ofthe highestpayingjobs in areas ofsevere unemployment. Thetrickledown effect of Ohio's and the country's coal-industry is beneficial to all Americans' broadereconomy and welfare. EPA has already predicted the impacts ofGHGs as regulatedpollutants 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 impactsthathave beenraisedby 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 submittedthis 16thday ofFebruary, 2010.

65 "Materials Characterization Paper in Support ofthe Advanced Notice ofProposed RulemakingIdentification ofNonhazardous 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\10691144.2 Sco
. Oostdyk McGuireWoods LLP One James Center 90I East Cary Street Richmond, Virginia 23219 804.775.1000 GordonR. Alphonso McGuireWoods LLP The Proscenium 1170 Peachtree StreetN.E., Suite 2100 Atlanta, Georgia 30309 404.443.5500 NealJ. Cabral McGuireWoods LLP Washington Square 1050 ConnecticutAvenueN.W., Suite 1200 Washington, D.C. 20036 202.857.1700 VirginiaL. H. Nesbitt McGuireWoods LLP One James Center 90I East Cary Street Richmond, Virginia 23219 804.775.1000 Counselto The Ohio CoalAssociation

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