ATTORNEYS GENERAL OF THE STATES OF NEW YORK, CALIFORNIA, CONNECTICUT, DELAWARE, MAINE, NEW MEXICO, OREGON, RHODE ISLAND, VERMONT, AND WASHINGTON, THE COMMONWEALTH OFMASSACHUSETTS, AND THE CORPORATION COUNSEL FOR THE CITY OFNEW YORK 

# DAILY READING 

# FILE June 16,2008 

# F/J-'/

# -
Stephen 

### L. Johnson Administrator U.S. Environmental Protection Agency United StatesEnvironmental Protection Agency 1101A U.S. EPA Headquarters Ariel Rios Building 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: New York v. EPA @.C. Cir. 06-1322) -Remand

Dear Administrator Johnson: The undersigned government petitioners inNew York v. EPA @.C. Cir. 06-1322) (Government Petitioners) are writing today to protest the lack ofprogress by the Environmental ProtectionAgency (EPA) in responding to the D.C. Circuit's remand in the above-referenced
case. 

### In this action, the Government Petitioners challenged EPA's failure to promulgate New SourcePerformance Standards (NSPS) under the Clean Air Act (Act) for carbon dioxide emissionsfrom power plants, which are the largest single source of greenhousegas emissions 

### in the United States. Following the Supreme Court's landmarkruling in Massachusettsv. EPA in April 2007, the D.C. Circuitremanded this action to EPA, yet EPA has taken no action. For the
reasons set forth in this letter, the Government Petitioners respectfully submit that EPA must, at a minimum, expeditiouslymake an "endangerment determination" on the impact of global warming from power plants on public health and welfare, in order to complywith the remand order and section 111 of the Act.

Section 11 l(b)(l)(B) of the Act requires EPA to revise NSPS every eight years. By letter dated August 27,2002, environmental groups demanded that EPA revise the NSPS for power plants and, specifically, consider promulgating standards for carbon dioxide emissions. They noted that the last eight-year review of power plant NSPS had occurred in 1979. The groups filed a complaint to compel EPA to conduct the required review. 

### In February 2003, New York, Connecticut, Maine, Massachusetts,New Jersey, Rhode Island, and Washington also called on EPA to review the NSPS for power plants and, specifically, to add limitations for carbon dioxide. They notified EPA of their intent to sue unless the Agency revised the NSPS forpower plants and, in the course ofthose revisions, determinewhether they should include standards ofperformance for carbon dioxide emissions. RegardingNSPS for carbon dioxide emissions,the notice explained that recent information confirms that:

1. Carbon dioxide emissions frompower plants in the United States are significant contributors to global warming; 2. Global warming and other aspects of climate change will significantlyendanger public health and welfare; and 3. Demonstrated, effective technology exists to significantlyreduce carbon dioxide emissions from electric utility generating systems.

It included detailed scientific and legal support demonstrating that power plant carbon dioxide emissionsmeet all the conditions set forth in the Act for inclusion within an NSPS.

A consent decree in the action brought by environmental groups, entered on February9, 2004, required EPA to review theNSPS forpower plants. In the rulemaking that followed, several states, industry groups, and environmental groups reiterated that EPA should regulate carbon dioxide emissionsunder Section 111. See. e.p, Comment Submittedby New York Attorney General 

### &, EPA-HQ-OAR-2005-0031-0130; Comment Submittedby Environmental Defense 

### &&, EPA-HQ-OAR-2005-0031-0108.EPA refused to establish an NSPS for carbon dioxide,relying solelyon the assertion that "EPA



### . . .does not presently have the authorityto set NSPS to regulate C02or other greenhouse gases that contributeto global climate change." &g 71 Fed. Reg. 9,866,9,869 (Feb. 27,2006).

In April 2007, however, the Supreme Court conclusivelyrejected EPA's purported lack of authority to regulate greenhouse gases in Massachusettsv. EPA, in its review of EPA's parallel rulemaking under Section 202 of the Act. 127 S.Q. 1438,1459 (2007) (holding that the Act "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change"). Following the Supreme Court's ruling, the United States Court of Appeals remanded this case to EPA, for proceedings "in light of' the Massachusettsv. EPA decision. The action that EPA has acknowledgedit must now conductunder Section 202 parallels the action that it must take in the power plant rulemakingunder Section 111. As EPA has recognized, the Massachusetts v. EPA decision required EPA to advance the rulemakingunder Section 202 by making an endangerment determination, that is, a "determin[ation]



### . . .whether greenhouse gas emissions(GHG) from new motor vehicles cause or contributeto air pollution that endangers public health or welfare." 72 Fed. Reg. 69,735,69,934 (Dec. 10,2007). The directly parallel action in this cas-the action on remand that is consistent with Massachusettsv. EPA- is for EPA to determine whether power plants "cause[], or contribute[] significantlyto," greenhouse gas emissions, and whether such "pollution



### . . .may reasonably be anticipatedto endanger health and welfare." 

## See 42 U.S.C. $ 741l(b)(l)(A); see also 42 U.S.C. 

### 8 741l(b)(l)(B) (revision of NSPS follows procedures forpromulgation).EPA has had more than a year since the Supreme Court decided Massachusettsv. EPA to make its endangerment determination. It is inexcusable that it has failed to do so. The endangerment inquiry under Section 111 includes two parts, respecting the health and welfare impacts of carbon dioxide emissions and the contribution of power plants to those emissions-neither ofwhich raises obscurequestions. The first has been the subject of extensive scientific study. It is public knowledge that EPA already has reached conclusions aboutthese impacts, in connection with its examination ofpotential regulation under Section 202. Indeed, the Agency already has acknowledged that global warming from greenhouse gas emissions poses a danger to public health, including "likely increases in mortality and morbidity, especially among the elderly, young, and frail." 73 Fed. Reg. 12,156, 12,167 (March 6,2008); see also ClimateChange ScienceProgram, ScientificAssessment of the Effects of Global Change on the United States 8 (May 2008) (acknowledging that it is very likely that climate change is already affectingU.S. water resources, agriculture, land resources, biodiversity, and human health and will continue to have significant effects for decades). The second question, whether the contribution ofpower plant emissions to carbon dioxide pollution is "significant[]," cannot seriously be thought to be in question. Domestic power plant emissions account for approximately41 percent of U.S. emissions' and slightly less than 10percent of global 

### emission^.^ Whichever figure one looks at, domestic power plants' contribution clearly is "significant[]." It is unreasonable for EPA to have delayed more than a year since the Massachusetts v. EPA decision without making an endangerment determination. Through its announcement that it will includepower plants in an advanced notice of proposed rulemaking 

### (ANPRM) and by language used in its recent petroleum refineries rule, EPA has now suggested that it may not only further delaythe endangerment determination in the Section 111 context,but in fact may refuse to do so at all. Any decisionby EPA to terminate the power plant rulemaking in favor ofraising anew the question ofpower plant regulation in the proposed 

### ANPRM would not be an adequate response to the court's remand order in this case. An 

### ANPRM is merely a proposal to prepare a proposal, which may in the future lead to regulations. P & V Enternrises v. U.S. Army 516F.3d 1021, 1026 @.C. Cir. 2008) (ANPRM is "a preparatory step, antecedent to a potential future rulemaking," the primary goal ofwhich is to "seek[] information to assist in deciding on the possibility of a futureproposed rule"). It is not acceptable for EPA-more than fiveyears after States asked that the power plant NSPS be revised to include standards for carbon dioxide and more than a year after Massachusettsv. EPA- to terminate the


# ' U.S. EPA, Inventorv ofU.S. Greenhouse Gas Emissions and Sinks: 1990-2005, Executive SurnmaqES-9 (2007). The ten percent figure is based on data showingthe United States is responsible for approximatelytwenty-two percent of global emissions. Energy Information Administration, Emissions of Greenhouse Gases in theUnited States 2006 (Nov. 2007).power plant rulemaking and return the question ofpower plant regulation to a pre-rulemaking step. EPA's justification for the ANPRM approach, that all issues pertaining to regulation of greenhouse gas emissions are interconnectedand so need to be studied together, has alreadybeen rejected. EPA asserted that theo~y almost five years ago in defendingits decision not to regulate motor vehiclesunder Section 202. 

### See 68Fed. Reg. 52,922,52,931 (Sept. 8,2003) (arguing that "a sensibleregulatory schemewould require that all significant sources and sinks of GHG emissions be considered in deciding how best to achieve any needed emissions reductions"). The Supreme Court held that this rationale does not excuse EPA's obligation to make an endangerment determinationunder Section 202. 127 S. Ct. at 1463 (asserted need for comprehensive approach does not provide "a reasonedjustification for declining to form a scientificjudgment" on whether motor vehicles contribute to greenhouse gas emissions that endanger health and welfare). The remand order in this case, which explicitlymandated that EPA act in light of the Massachusetts v. EPA decision, requires EPA to make an endangerment finding with respect to power plants or to explain why it believes that it lacks the scientific information necessary to make such a determination. EPA cannot avoid that obligation by repeating the error corrected by the Supreme Court's decision, withholding its scientific findings until it 

### has completed study of all the regulatory implicationsof an eventual final decision to regulate power plants under Section 111. With respect to the rationale for inaction offered in the recent refineriesrule, EPA asserts an interpretation of Section 111 that acknowledges no limitations on EPA's discretion in deciding whether to regulate pollutants under Section 111.Indeed, the implication of the decision not to regulate refineries and the rationale offered for that decision is that, even where there is a consensus 

### in the scientific communitythat a pollutant endangers health and welfare, as is the case with carbon dioxide emissions,EPA may refuse to regulate without even addressing endangerment in its decisionmaking. 

### If applied in the power plant context, this interpretation would be inconsistent with the Supreme Court's decision in Massachusettsv. EPA, and correspondingly, contraryto the remand order in this case requiring the Agency to proceed with the NSPS rulemaking in light ofthat decision.

In conclusion, to meet its obligations under the remand order and Section 111, EPA must, at a minimum, make an endangerment determination forthwith or explain why it believes it lacks the information necessary to do so. We look forward to your prompt response so that we may evaluate our legal options regardingthe remand. Ifyou would like to discussthis matter, feel free to contact us through New York Assistant Attorney General Michael 

### J. Myers, Environmental Protection Bureau, New York Office ofAttorney General,The Capitol, Albany, NY 12224; (518) 402-2594 (ph); (518-473-2534 (fax); 

### michael.mvers~,oae.state.nv.us.Dated: June 16,2008 Sincerely,
FOR THE STATE OF NEW YORK

ANDREW M. CUOMO Attorney General

By: KATHERINE 

### &&Y Special Deputy Attorney General MICHAEL J. MYERS DANIEL J. CHEPAITIS MORGAN COSTELLO Assistant Attorneys General Environmental Protection Bureau The Capitol Albany, New York 12224 (5 18)402-2594

FOR THE STATE OF CALIFORNIA and CALIFORNIA AIR RESOURCES BOARD

EDMUND G. BROWN JR. Attorney General FOR THE STATE OF CONNECTICUT

RICHARD BLUMENTHAL Attomey General By:

MATTHEW LEVINE Assistant Attorneys General P.O. Box 120 55 Elm Street Hartford, Connecticut 06141-0120 (860) 808-5250

FOR THE STATE OF DELAWARE

JOSEPH R. BIDEN, 

### III Attorney General

By: 

### ~akan
SUSAN

### DURBIN Deputy Attorneys General CaliforniaDepartment of Justice 1515 Clay Street, 20th floor P.O. Box 70550 Oakland, CA 94612 (510) 622-2137 By:

Deputy Attorney General Attorney General's Office Third Floor, 102 

### W. Water Street Dover, Delaware 19904 (302) 739-4636FOR THE STATE OF MAINE

G. STEVENROWE Attorney General By:



# . Assistant Attorney General Department of the Attorney General State House Station#6 Augusta, Maine 04333-0006 (207) 626-8800

FOR THE COMMONWEALTH OF MASSACHUSETTS

MARTHA COAKLEY Attomey General By:

WILLIAM L. PARDEE Assistant Attorneys General Environmental Protection Division OneAshburton Place Boston, Massachusetts 02108 (617) 727-2200

FOR THE STATE OFNEW MEXICO

GARY KING Attorney General



### By:

Assistant Attomey General P.O. Drawer 1508 Santa Fe, New Mexico 87504-1508 (505) 827-6010 FOR THE STATE OF OREGON

HARDY MYERS Attorney General By: 

## paaJh. Special Counsel to the Attorney General PAUL S.LOGAN Assistant Attorney General

' 1162Court St.

### N.E. Salem, Oregon 97301

FOR THE STATE OF RHODE ISLAND

PATRICK C. LYNCH Attorney General By:

Special ~ssl'stant Attorney General Office ofthe Attorney General 150 SouthMain street Providence, Rhode Island 02903 401-274-4400 ext. 2400

FOR THE STATE OF VERMONT

WILLIAM H. SORRELL Attorney General



### BY: 

## *. KEVIN 0.LESKE Assistant Attomey General Office ofthe Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-3186FOR 

### THE STATE OF WASHINGTON

ROBERT 

### M. MCKENNA Attomey General

Assistant Attomey General Washington State Office of the Attomey General P.O.Box 40117 Olympia, WA 98504-0117 360-586-6770

FOR 

### THE CITY OF

### NEW YORK

MICHAEL A. CARDOZO Corporation Counsel ofthe City of New York By:

Assistant Corporation Counsel SCOTT PASTERNACK Senior Counsel 100Church Street New York, New York 10007 (212) 788-1 145