ATTORNEYS GENERAL OF THE STATES OF NEW YORK, CALIFORNIA, CONNECTICUT, 

DELAWARE, MAINE, NEW MEXICO, OREGON, RHODE ISLAND, VERMONT, AND 

WASHINGTON, THE COMMONWEALTH OF MASSACHUSETTS, AND THE CORPORATION 

COUNSEL FOR THE CITY OF NEW YORK 

DAILY READING FILE 

June 16,2008 

F/J-'/ - 

Stephen L. Johnson 

Administrator 

U.S. Environmental Protection Agency 

United States Environmental 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 in New York v. EPA @.C. Cir. 06-1322) 

(Government Petitioners) are writing today to protest the lack of progress by the Environmental 

Protection Agency (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 

Source Performance Standards (NSPS) under the Clean Air Act (Act) for carbon dioxide 

emissions from power plants, which are the largest single source of greenhouse gas emissions in 

the United States. Following the Supreme Court's landmark ruling in Massachusetts v. EPA in 

April 2007, the D.C. Circuit remanded 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, expeditiously make an "endangerment determination" on the impact of global 

warming from power plants on public health and welfare, in order to comply with the remand 

order and section 11 1 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 for power plants 

and, in the course of those revisions, determine whether they should include standards of 
performance for carbon dioxide emissions. Regarding NSPS for carbon dioxide emissions, the 

notice explained that recent information confirms that: 

1. Carbon dioxide emissions from power plants in the United States are 

significant contributors to global warming; 

2. Global warming and other aspects of climate change will significantly endanger 

public health and welfare; and 

3. Demonstrated, effective technology exists to significantly reduce carbon dioxide 

emissions from electric utility generating systems. 

It included detailed scientific and legal support demonstrating that power plant carbon dioxide 

emissions meet 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 February 9, 

2004, required EPA to review the NSPS for power plants. In the rulemaking that followed, 

several states, industry groups, and environmental groups reiterated that EPA should regulate 

carbon dioxide emissions under Section 11 1. See. e.p, Comment Submitted by New York 

Attorney General &, EPA-HQ-OAR-2005-0031-0130; Comment Submitted by Environmental 

Defense &&, EPA-HQ-OAR-2005-0031-0108. EPA refused to establish an NSPS for carbon 

dioxide, relying solely on the assertion that "EPA . . . does not presently have the authority to set 

NSPS to regulate C02 or other greenhouse gases that contribute to global climate change." &g 

71 Fed. Reg. 9,866,9,869 (Feb. 27,2006). 

In April 2007, however, the Supreme Court conclusively rejected EPA's purported lack 

of authority to regulate greenhouse gases in Massachusetts v. 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 Massachusetts v. EPA decision. The action that 

EPA has acknowledged it must now conduct under Section 202 parallels the action that it must 

take in the power plant rulemaking under Section 11 1. As EPA has recognized, the 

Massachusetts v. EPA decision required EPA to advance the rulemaking under Section 202 by 

making an endangerment determination, that is, a "determin[ation] . . . whether greenhouse gas 

emissions (GHG) from new motor vehicles cause or contribute to 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 Massachusetts v. EPA- is for 

EPA to determine whether power plants "cause[], or contribute[] significantly to," greenhouse 

gas emissions, and whether such "pollution . . . may reasonably be anticipated to endanger health 

and welfare." See 42 U.S.C. $ 741 l(b)(l)(A); see also 42 U.S.C. 8 741 l(b)(l)(B) (revision of 

NSPS follows procedures for promulgation). 
EPA has had more than a year since the Supreme Court decided Massachusetts v. EPA to 

make its endangerment determination. It is inexcusable that it has failed to do so. The 

endangerment inquiry under Section 11 1 includes two parts, respecting the health and welfare 

impacts of carbon dioxide emissions and the contribution of power plants to those 

emissions-neither of which raises obscure questions. The first has been the subject of extensive 

scientific study. It is public knowledge that EPA already has reached conclusions about these 

impacts, in connection with its examination of potential 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 

Climate Change Science Program, Scientific Assessment of the Effects of Global Change on the 

United States 8 (May 2008) (acknowledging that it is very likely that climate change is already 

affecting U.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 of power plant emissions to carbon dioxide pollution is "significant[]," cannot 

seriously be thought to be in question. Domestic power plant emissions account for 

approximately 41 percent of U.S. emissions' and slightly less than 10 percent 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 include power 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 delay the endangerment determination in the 

Section 11 1 context, but in fact may refuse to do so at all. 

Any decision by EPA to terminate the power plant rulemaking in favor of raising anew 

the question of power 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 

5 16 F.3d 1021, 1026 @.C. Cir. 2008) (ANPRM is "a preparatory step, 

antecedent to a potential future rulemaking," the primary goal of which is to "seek[] information 

to assist in deciding on the possibility of a future proposed rule"). It is not acceptable for 

EPA-more than five years after States asked that the power plant NSPS be revised to include 

standards for carbon dioxide and more than a year after Massachusetts v. EPA- to terminate the 

' U.S. EPA, Inventorv of U.S. Greenhouse Gas Emissions and Sinks: 1990-2005, 

Executive Surnmaq ES-9 (2007). 

The ten percent figure is based on data showing the United States is responsible for 

approximately twenty-two percent of global emissions. Energy Information Administration, 

Emissions of Greenhouse Gases in the United States 2006 (Nov. 2007). 
power plant rulemaking and return the question of power 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 interconnected and so need to be studied together, has already been 

rejected. EPA asserted that theo~y almost five years ago in defending its decision not to regulate 

motor vehicles under Section 202. See 68 Fed. Reg. 52,922,52,931 (Sept. 8,2003) (arguing 

that "a sensible regulatory scheme would 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 determination under Section 202. 127 S. Ct. at 1463 (asserted need for 

comprehensive approach does not provide "a reasoned justification for declining to form a 

scientific judgment" on whether motor vehicles contribute to greenhouse gas emissions that 

endanger health and welfare). The remand order in this case, which explicitly mandated 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 implications of an eventual final decision to 

regulate power plants under Section 11 1. 

With respect to the rationale for inaction offered in the recent refineries rule, EPA asserts 

an interpretation of Section 11 1 that acknowledges no limitations on EPA's discretion in 

deciding whether to regulate pollutants under Section 11 1. 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 community that 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 Massachusetts v. EPA, and 

correspondingly, contrary to the remand order in this case requiring the Agency to proceed with 

the NSPS rulemaking in light of that decision. 

In conclusion, to meet its obligations under the remand order and Section 1 11, 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 regarding the remand. If you would like to discuss this matter, feel 

free to contact us through New York Assistant Attorney General Michael J. Myers, 

Environmental Protection Bureau, New York Office of Attorney 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 061 41 -0120 

(860) 808-5250 

FOR THE STATE OF DELAWARE 

JOSEPH R. BIDEN, III 

Attorney General 

By: 

~akan 

SUSAN DURBIN 

Deputy Attorneys General 

California Department of Justice 

1515 Clay Street, 20th floor 

P.O. Box 70550 

Oakland, CA 94612 

(5 10) 622-2 137 

By: 

Deputy Attorney General 

Attorney General's Office 

Third Floor, 102 W. Water Street 

Dover, Delaware 19904 

(302) 739-4636 
FOR THE STATE OF MAINE 

G. STEVEN ROWE 

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 

One Ashburton Place 

Boston, Massachusetts 02108 

(617) 727-2200 

FOR THE STATE OF NEW 

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 

' 1162 Court St. N.E. 

Salem, Oregon 97301 

FOR THE STATE OF RHODE 

ISLAND 

PATRICK C. LYNCH 

Attorney General 

By: 

Special ~ssl'stant Attorney General 

Office of the Attorney General 

150 South Main 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 of the Attorney General 

109 State Street 

Montpelier, VT 05609-1001 

(802) 828-3 186 
FOR 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 98504-01 17 

360-586-6770 

FOR THE CITY OF NEW YORK 

MICHAEL A. CARDOZO 

Corporation Counsel of the City of 

New York 

By: 

Assistant Corporation Counsel 

SCOTT PASTERNACK 

Senior Counsel 

100 Church Street 

New York, New York 10007 

(212) 788-1 145