IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________

)

AMERICAN FOREST & PAPER )

ASSOCIATION, Inc., and )

AMERICAN WOOD COUNCIL, )

)

Petitioners, )

)

v. ) No. 12-1452

)

U.S. ENVIRONMENTAL PROTECTION )

AGENCY, )

)

Respondent. )

___________________________________ )

SETTLEMENT AGREEMENT

WHEREAS the American Forest & Paper Association, Inc., and the

American Wood Council (referred to as “Petitioners”) filed in the Court of Appeals

for the D.C. Circuit a petition for review captioned above that challenges the

regulation by the Environmental Protection Agency (“EPA”) titled “Mandatory

Reporting of Greenhouse Gases; Final Rule,” 74 Fed. Reg. 56,260 (Oct. 30, 2009)

(“GHG Reporting Rule”), pursuant to 42 U.S.C. § 7607(b)(1) of the Clean Air Act,

alleging new grounds have arisen on which to seek judicial review of that EPA

final action; 

WHEREAS Petitioners have submitted to EPA new substantive information,

and based upon its preliminary review EPA believes that information warranted
proposing for public comment certain modifications to the GHG Reporting Rule,

as set forth in this Settlement Agreement; 

WHEREAS the EPA and the Petitioners (collectively the “Parties”) wish to

implement this Settlement Agreement (“Agreement”) to avoid protracted and

costly litigation and to preserve judicial resources;

WHEREAS, EPA has published a notice of proposed rulemaking on the

issue of whether the GHG Reporting Rule should be amended by the inclusion of

proposed amendments of the same substance as set forth in Attachment A to this

Agreement. 

NOW, THEREFORE, the Parties, intending to be bound by this Agreement,

hereby stipulate and agree as follows:

1. If and when EPA promulgates in final form an amendment to the

GHG Reporting Rule that includes changes that are substantially the same 

substance as set forth in Attachment A, Table C-2 and Table AA-1, to this

Agreement, then Petitioners shall promptly file a stipulation of dismissal of No. 12-

1452, or in the event not all such changes of substantially the same substance are

made, a stipulation of dismissal of No. 12-1452 for the issues that correspond to

such changes that were made, with the creation of a new docket for those issues

that were not resolved. Such stipulation of dismissal shall be in accordance with

Rule 42 of the Federal Rules of Appellate Procedure, with each party to bear its
1/

 This reference includes the Letter from Paul Noe, American Forest & Paper Association, and

Robert Glowinski, American Wood Council, to Lisa Jackson, U.S. EPA. Petition for

Reconsideration of 40 C.F.R. Part 98 Subparts C and AA; Petition for Rulemaking To Revise 40

C.F.R. Part 98 Subparts C and AA, and the Request for Correction Under Information Quality

Act, dated November 16, 2012.

own costs and attorneys’ fees. In addition, Petitioners shall not challenge the

validity of the portion of the final rule adopting such amendments of substantially

the same substance as set forth in Attachment A, Table C-2 and Table AA-1, in any

court or administrative proceeding, and the right to raise such challenge is waived,

provided that Petitioners reserves any rights they may have to challenge in any

court or administrative proceeding any portion of such final rule that is not of

substantially the same substance as set forth in Attachment A ,Table C-2 and Table

AA-1, to this Agreement.

2. If and when EPA promulgates in final form an amendment to the

GHG Reporting Rule that includes changes that are substantially the same

substance as the proposed amendments attached as Attachment A to this

Agreement, all pending administrative petitions by Petitioners for reconsideration

and/or requests for correction of the GHG Reporting Rule1/

, or the issues raised in

such administrative petitions and/or requests that correspond to such changes of

substantially the same substance in the event not all such changes are made, shall

be deemed withdrawn.
3. If EPA does not take action in accordance with the terms of paragraph

1 of this Agreement then Petitioners’ sole remedy under this Agreement regarding

the rules under review in this case shall be the right to request that the Court lift the

stay of proceedings and establish a schedule for briefing and oral argument. If

EPA does not take action in accordance with the terms of paragraph 2 of this

Agreement then Petitioners’ sole remedy under this Agreement shall be to pursue

their pending administrative petitions for reconsideration and/or requests for

correction of the GHG Reporting Rule.

4. EPA and Petitioner agree and acknowledge that before this Agreement

is final, EPA must provide notice in the Federal Register and an opportunity for

comment pursuant to Clean Air Act section 113(g), 42 U.S.C. § 7413(g). EPA

shall submit said notice of this Agreement to the Federal Register for publication

as expeditiously as possible. After this Agreement has undergone an opportunity

for notice and comment, the Administrator and/or the Attorney General, as

appropriate, shall promptly consider any such written comments in determining

whether to withdraw or withhold her consent to the Agreement, in accordance with

section 113(g) of the Clean Air Act. This Agreement shall become final on the

date that EPA provides written notice of such finality to Petitioner.

5. The Parties acknowledge that if EPA elects to finalize this Agreement,

during the notice and comment rulemaking proceedings EPA will consider the
proposal, and that EPA’s final action on that proposal will be based upon its

consideration of the administrative record before the Agency, including public

comments. Nothing in the terms of this Agreement shall be construed to limit or

modify the discretion accorded EPA by the Clean Air Act or by general principles

of administrative law. Nothing in the terms of this Agreement shall be construed

to limit EPA’s authority to alter, amend, or revise any final rule, interpretation or

guidance EPA issues in accordance with this Agreement. Nothing in the terms of

this Agreement shall be construed to limit or modify the rights Petitioners may

have to request that EPA modify any final rule EPA promulgates in accordance

with this Agreement.

6. Any obligations of EPA to obligate or expend funds under this

Agreement are subject to the availability of appropriations in accordance with the

Anti-Deficiency Act, 31 U.S.C. § 1341. This Settlement Agreement shall not be

construed to require the United States to obligate or pay funds in contravention of

said Anti-Deficiency Act, 31 U.S.C. § 1341.

7. The undersigned representatives of each party certify that they are

fully authorized by the party that they represent to bind that respective party to the

terms of this Agreement.

ATTACHMENT A
Page 1 of 2 

Subpart C—[AMENDED] 

Table C–2 to Subpart C—Default CH4 and N2O Emission Factors for 

Various Types of Fuel

Fuel type 

Default CH4

emission factor 

(kg CH4/mmBtu) 

Default N2O

emission factor 

(kg N2O/mmBtu) 

* * * * * * * 

Biomass Fuels—Solid (All 

fuel types in Table C–1, 

except wood and wood 

residuals) 

3.2 × 10−02 4.2 × 10−03

Wood and wood residuals 7.2 x 10-3 3.6 x 10-3

* * * * * 

Subpart AA—[AMENDED] 

Table AA–1 to Subpart AA of Part 98—Kraft Pulping Liquor 

Emissions Factors for Biomass-Based CO2, CH4, and N2O 

Wood furnish 

Biomass-based emissions factors

(kg/mmBtu HHV) 

CO2

a

CH4 N2O 

North American Softwood 94.4 0.0019 0.00042

North American Hardwood 93.7 0.0019 0.00042

Bagasse 95.5 0.0019 0.00042

Bamboo 93.7 0.0019 0.00042

Straw 95.1 0.0019 0.00042

a

Includes emissions from both the recovery furnace and pulp mill lime kiln. 

Table AA–2 to Subpart AA of Part 98—Kraft Lime Kiln and Calciner 

Emissions Factors for CH4 and N2O 

Fuel 

Fossil fuel-based emissions factors (kg/mmBtu HHV)

Kraft lime kilns Kraft calciners

CH4 N2O CH4 N2O

Residual Oil 

(any type) 

0.0027 0 0.0027 0.0003
Page 2 of 2 

Distillate Oil 

(any type) 

0.0027 0 0.0027 0.0004

Natural Gas 0.0027 0 0.0027 0.0001

Biogas 0.0027 0 0.0027 0.0001

Petroleum coke 0.0027 0 NAa NAa

Other Fuels See Table 

C-2 

0 See Table 

 C-2 

See Table 

 C-2

a

Emission factors for kraft calciners are not available.