IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

The Fertilizer Institute, 1 

1 

PETITIONER, ) 

) C.A. NO. 09-1329 

VS. 

U.S. Environmental Protection Agency ) Consolidated with Cases Nos. 

and Lisa P. Jackson, Administrator, ) 09-1325,09-1326,09-1328,09-1331, 

U.S. Environmental Protection Agency ) 09-1332,09-1333, and 09-1334. 

RESPONDENTS. 

PRELIMINARY NON-BINDING STATEMENT OF ISSUES 

Pursuant to the January 8,2010 Order of this Court, Petitioner The Fertilizer 

Institute ("TFI") hereby files its preliminary and non-binding statement of issues to 

be raised in The Fertilizer Institute v. EPA, No. 09-1329. TFI seeks review of the 

U.S. Environmental Protection Agency's ("EPA") final rule entitled "Mandatory 

Reporting of Greenhouse Gases" (hereinafter referred to as the "Reporting Rule"), 

which appears at 74 Fed. Reg. 56260 (October 30,2009). 

TFI currently intends to raise the following issues in this case: 

1. Whether EPA's decision only to require reporting of the nitrogen 

content of fertilizer produced in ammonia manufacturing and nitric acid 

Case: 09-1329 Document: 1229674 Filed: 02/08/2010 Page: 1
manufacturing facilities (hereinafter "Produced Fertilizers") in the Reporting Rule, 

but not require reporting of the nitrogen content of fertilizer produced outside of 

such facilities (such as using imported ammonia or nitric acid), was (i) arbitrary, 

capricious, an abuse of discretion or otherwise not in accordance with law, 

(ii) contrary to constitutional right, power, privilege, or immunity, or (iii) in excess 

of statutory jurisdiction, authority, or limitations, or short of statutory right. 

2. Whether EPA's decision to require reporting of the nitrogen content 

of Produced Fertilizers in the Reporting Rule, but not require reporting for 

fertilizer imports or allow the subtraction of fertilizer exports in the Reporting 

Rule, was (i) arbitrary, capricious, an abuse of discretion or otherwise not in 

accordance with law, (ii) contrary to constitutional right, power, privilege, or 

immunity, or (iii) in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right. 

3. To the extent EPA would interpret Produced Fertilizers to include 

fertilizers that are merely blended at ammonia or nitric acid manufacturing 

facilities, whether EPA's decision to require reporting for such blending in the 

Reporting Rule was (i) arbitrary, capricious, an abuse of discretion or otherwise 

not in accordance with law, (ii) contrary to constitutional right, power, privilege, or 

immunity, or (iii) in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right. 

Case: 09-1329 Document: 1229674 Filed: 02/08/2010 Page: 2
4. Whether EPA's decision to require reporting of the nitrogen content 

of Produced Fertilizers in the Reporting Rule, but not subtraction of nonagricultural uses (and thus transformation of Produced Fertilizers without release 

of greenhouse gases) in the Reporting Rule, was (i) arbitrary, capricious, an abuse 

of discretion or otherwise not in accordance with law, (ii) contrary to constitutional 

right, power, privilege, or immunity, or (iii) in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right. 

5. Whether EPA's decision in the Reporting Rule to require reporting of 

the waste recycle stream associated with purge gas at ammonia plants, resulting in 

costly and potentially dangerous facility shutdowns, was (i) arbitrary, capricious, 

an abuse of discretion or otherwise not in accordance with law, (ii) contrary to 

constitutional right, power, privilege, or immunity, or (iii) in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory right. 

6. Whether EPA's decision in the Reporting Rule to require the reporting 

of the waste recycle stream associated with purge gas at ammonia plants, resulting 

in double-counting of carbon dioxide emissions from ammonia plants, was 

(i) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with 

law, (ii) contrary to constitutional right, power, privilege, or immunity, or (iii) in 

excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 

Case: 09-1329 Document: 1229674 Filed: 02/08/2010 Page: 3
7. Whether EPA's decision to require reporting of the mass of carbon 

dioxide captured, extracted, imported, or exported, based on calculation of such 

mass prior to any subsequent purification, processing, or compressing, was 

(i) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with 

law, (ii) contrary to constitutional right, power, privilege, or immunity, or (iii) in 

excess of statutory jurisdiction, authority, or limitation, or short of statutory right. 

Respectfully submitted, 

/s/ Chris S. Leason 

Chris S. Leason 

GALLAGHER & KENNEDY, P.A. 

2575 E. Camelback Road 

Phoenix, Arizona 8501 6 

(602) 530-8059 

csl@gknet.com 

Attorneys for Petitioner, 

The Fertilizer Institute 

Dated: February 8,2010 

Case: 09-1329 Document: 1229674 Filed: 02/08/2010 Page: 4
CERTIFICATE OF SERVICE 

I hereby certify that on this 8th day of February 2010,l electronically 

transmitted a PDF version of TFI's Preliminary Non-Binding Statement of Issues 

to the Clerk of this Court using the CM/ECF system for filing and for transmittal of 

a Notice of Electronic Filing to all CIWECF registrants and non-parties. 

In addition, the following parties were served via United States Mail at the 

addresses below: 

Craig Holt Segall Christopher Gene King 

David G. Bookbinder New York City Law Department 

Sierra Club 6-143 

408 C Street, NE I00 Church Street 

Washington, DC 20002-0000 New York, NY 10007 

Joseph P. Mikitish Kristen Campfield Furlan 

Attorney General's Office Pennsylvania Department of 

of the State of Arizona Environmental Protection 

1275 West Washington Street 400 Market Street 

Phoenix, Arizona 85007-2926 Rachel Carson State Office Building 

9th Floor 

Susan Jane Hedman Harrisburg, PA 17 105-8464 

Office of the Illinois Attorney General 

I00 West Randolph Street 

Chicago, IL 60601 

Valerie Melissa Satterfield 

Attorney General's Office of 

State of Delaware 

102 West Water Street 

Third Floor 

Dover, DE 19904-0000 

/s/ Chris S. Leason 

Chris S. Leason 

Case: 09-1329 Document: 1229674 Filed: 02/08/2010 Page: 5