### 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 statementof 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" (hereinafterreferred 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: 1manufacturing facilities (hereinafter "Produced Fertilizers") in the Reporting Rule, but not require reporting ofthe 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) contraryto 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 decisionto require reporting ofthe nitrogen content ofProduced Fertilizers in the Reporting Rule, but not require reporting for fertilizer imports or allow the subtractionoffertilizer exports in the Reporting Rule, was (i) arbitrary, capricious, an abuse of discretion or otherwisenot in accordance with law, (ii) contrary to constitutional right,power, privilege, or immunity, or (iii) in excess of statutoryjurisdiction, authority, or limitations, or short of statutory right. 3. Tothe extent EPA would interpretProduced 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) contraryto constitutional right, power, privilege, or immunity, or (iii) in excess of statutoryjurisdiction, authority, or limitations,or short of statutory right. Case: 09-1329 Document: 1229674 Filed: 02/08/2010 Page: 24. Whether EPA's decision to require reporting ofthe nitrogen content ofProduced Fertilizers in the Reporting Rule, but not subtraction ofnonagricultural 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) contraryto constitutional right, power, privilege, or immunity, or (iii) in excess of statutoryjurisdiction, 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) contraryto 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 ofthe waste recycle stream associated with purge gas at ammonia plants, resulting in double-counting ofcarbon 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 statutoryjurisdiction, 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 ofthe 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 otherwisenot in accordancewith law, (ii) contrary to constitutional right, power, privilege, or immunity, or (iii) in excess of statutory jurisdiction, authority, or limitation, or short of statutoryright. Respectfully submitted,

/s/ Chris S. Leason Chris 

### S. Leason GALLAGHER & KENNEDY, P.A. 2575 

### E. Camelback Road Phoenix, Arizona 85016 (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 ofFebruary 2010,l electronically transmitted a PDF version ofTFI's Preliminary Non-Binding Statement ofIssues to the Clerk of this Court using the CM/ECF system for filing and for transmittal of

a Notice ofElectronic Filing to all CIWECFregistrants and non-parties. In addition, the followingparties 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 ofArizona Environmental Protection 1275West Washington Street 400 Market Street Phoenix, Arizona 85007-2926 Rachel Carson State Office Building 9th Floor Susan Jane Hedman Harrisburg, PA 17105-8464 Office of the Illinois Attorney General I00 West Randolph Street Chicago,IL 60601 Valerie Melissa Satterfield Attorney General's Office of State ofDelaware 102West 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