Brief in Coalition for Responsible Regulation et al v. Environmental Protection Agency

Full Document Available in PDF


The suite of rules challenged in these coordinated cases involves what is assuredly the most burdensome, costly, precedent-setting, and far-reaching set of regulations ever adopted by the U.S. Environmental Protection Agency. EPA’s Endangerment Rule, challenged here, is the cornerstone of EPA’s decision to regulate a new category of emissions under the Clean Air Act. As demonstrated below, the Rule is the product of serious legal, evidentiary, and procedural errors. These errors can fairly be said to reflect EPA’s rush to judgment and its decision to disregard statutory text, settled rules of construction, and the specific terms of the Supreme Court’s decision and remand in Massachusetts v. EPA, 549 U.S. 497 (2007). The errors are further reflected in the Agency’s remarkable and implausible contention that the Act must be read to compel a chain reaction of multiple rules leading to what it frankly concedes are “absurd” results, contrary to Congress’s intent.

Many errors infecting EPA’s final rule stem from a fundamental misreading and misapplication of CAA Section 202(a)(1). Section 202(a)(1) requires EPA, in addressing endangerment, to make a determination that informs and directly ties to the need for, and contours of, automobile emissions standards that address the risk identified. But after forty years of following that integrated approach, EPA now interprets the statute to require an abstract agency risk assessment divorced from the essential regulatory policy judgments its risk assessment entails. Premised on its new interpretation of Section 202(a)(1), EPA not only disavows any obligation, but USCA Case #09-1322 Document #1309215 Filed: 05/20/2011 Page 38 of 119 2 concludes it lacks any discretion, to consider the regulatory consequences of its Endangerment Rule. This flouts the plain meaning of Section 202(a)(1) and basic tenets of reasoned decisionmaking.

Although EPA ostensibly exercised statutory authority to address perceived dangers to health and welfare caused by new automobile emissions, in fact it made no showing that the Endangerment Rule or any of its other greenhouse gas (“GHG”) rules will effectively remove dangers to health or welfare that might otherwise occur. EPA disclaimed any obligation or authority to define its ultimate regulatory objectives, its chosen means of achieving them, or its conception of successful regulation. Although EPA’s regulatory actions are premised on assertions about “changes” to “climate” — including the claim that it is 90-99% certain that human-caused climate change threatens public health and welfare, 74 Fed. Reg. at 66,518 & n.22, nowhere does EPA say what constitutes a “safe climate,” acceptable global temperature ranges, “safe” levels of GHGs in the atmosphere, or even how its regulatory actions will have discernable effects that ameliorate actual dangers to the public. Without a showing of how its automobile regulations will ameliorate the abstract endangerment it posits, even after being in effect for many years, neither EPA, nor the public, nor this Court, can accurately judge whether EPA has achieved a congressionally defined goal.

Although Section 202(a)(1) unambiguously requires the Administrator to exercise independent judgment connecting her risk assessment to a reasoned regulatory response, she left the gathering and sifting of the evidence supporting the USCA Case #09-1322 Document #1309215 Filed: 05/20/2011 Page 39 of 119 3 Endangerment Rule to an international non-governmental organization chartered to study human-caused climate change. But the conclusions the Administrator borrowed from this organization fall far short of the evidence and analysis necessary to justify EPA’s asserted high confidence in its conclusions. Those conclusions rest primarily on modeling projections based on speculative assumptions and modeling results contradicted by real-world observations. Given the multiple, admitted uncertainties of the modeling EPA relied on, the Agency’s professed high confidence in its endangerment assessment is unsupported and legally unjustified.

For all these reasons and others, the Endangerment Rule should be vacated and remanded to EPA.