415 F.3d 50 (D.C. Cir. 2005), 03-1361, Massachusetts v. E.P.A.

Docket Nº:03-1361 to 03-1368.
Citation:415 F.3d 50
Party Name:Commonwealth of MASSACHUSETTS, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Alliance of Automobile Manufacturers, et al., Intervenors
Case Date:July 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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415 F.3d 50 (D.C. Cir. 2005)

Commonwealth of MASSACHUSETTS, et al., Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent

Alliance of Automobile Manufacturers, et al., Intervenors

Nos. 03-1361 to 03-1368.

United States Court of Appeals, District of Columbia Circuit.

July 15, 2005

        Argued April 8, 2005.

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        On Petitions for Review of an Order of the Environmental Protection Agency.

        James R. Milkey and Howard Fox argued the cause for petitioners. With them on the briefs were Thomas F. Reilly, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, William L. Pardee, Assistant Attorney General, Joseph Mendelson, III, David Bookbinder, Bill Lockyer, Attorney General, Attorney General's Office of the State of California, Nicholas Stern and Marc N. Melnick, Deputy Attorneys General, David Doniger, Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General, Peter C. Harvey, Attorney General, Attorney General's Office of the State of New Jersey, Stefanie A. Brand,

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Deputy Attorney General, Hardy Myers, Attorney General, Attorney General's Office of the State of Oregon, Philip Schradle, Special Counsel, Lisa Madigan, Attorney General, Attorney General's Office of the State of Illinois, Gary Feinerman, Solicitor General, Gerald T. Karr and Thomas E. Davis, Assistant Attorneys General, Patricia A. Madrid, Attorney General, Attorney General's Office of the State of New Mexico, Stuart M. Bluestone, Deputy Attorney General, Patrick C. Lynch, Attorney General, Attorney General's Office of the State of Rhode Island, Tricia K. Jedele, Special Assistant, G. Steven Rowe, Attorney General, Attorney General's Office of the State of Maine, Gerald D. Reid, Assistant Attorney General, Eliot Spitzer, Attorney General, Attorney General's Office of the State of New York, Peter Lehner and J. Jared Snyder, Assistant Attorneys General, William H. Sorrell, Attorney General, Attorney General's Office of the State of Vermont, Erick Titrud and Kevin O. Leske, Assistant Attorneys General, Rob McKenna, Attorney General, Attorney General's Office of the State of Washington, David K. Mears, Assistant Attorney General, John Hogrogian, Assistant Corporation Counsel, Corporation Counsel of the City of New York, Julie M. Anderson, Fiti A. Sunia, Attorney General, Attorney General's Office of the American Samoa, Ralph S. Tyler, III, Solicitor, City of Baltimore, William Phelan, Jr., Counsel, James B. Tripp, Robert J. Spagnoletti, Attorney General, Attorney General's Office of the District of Columbia, Edward E. Schwab, Deputy Attorney General, and Donna M. Murasky, Senior Litigation Counsel.

        Rebecca L. Bernard and Jeremy Kyle Kinner were on the brief of amici curiae Indigenous Environmental Network, REDOIL and Physicians for Social Responsibility.

        Jeffrey Bossert Clark, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Thomas L. Sansonetti, Assistant Attorney General, Jon M. Lipshultz, Attorney, Ann R. Klee, General Counsel, U.S. Environmental Protection Agency, and John T. Hannon and Nancy Ketcham-Colwill, Counsel.

        Neil D. Gordon, Assistant Attorney General, Attorney General's Office of the State of Michigan, argued the cause for intervenors States of Michigan, et al., and amicus curiae State of Indiana. With him on the briefs were Alan F. Hoffman, Assistant Attorney General, Jane E. Atwood, Assistant Attorney General, Attorney General's Office of the State of Texas, Douglas Conde, Deputy Attorney General, Attorney General's Office of the State of Idaho, Charles M. Carvell, Assistant Attorney General, Attorney General's Office of the State of North Dakota, Fred Nelson, Assistant Attorney General, Attorney General's Office of the State of Utah, Roxanne Giedd, Deputy Attorney General, Attorney General's Office of the State of South Dakota, Steven E. Mulder, Assistant Attorney General, Attorney General's Office of the State of Alaska, David W. Davies, Attorney, Attorney General's Office of the State of Kansas, David D. Cookson and Natalee J. Hart, Assistant Attorneys General, Attorney General's Office of the State of Nebraska, Dale T. Vitale, Senior Deputy Attorney General, Attorney General's Office of the State of Ohio, and Thomas M. Fisher, Special Counsel, Attorney General's Office of the State of Indiana.

        Norman W. Fichthorn, Allison D. Wood, William A. Anderson, II., Eric P. Gotting, Russell S. Frye, John L. Wittenborn, William L. Fang, Dell E. Perelman, Leslie A. Hulse, Richard Wasserstrom, Harry M. Ng, Ralph J. Colleli, Jr., Jan S. Amundson, Quentin Riegel, Robin S. Conrad, John T. Whatley,

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Julie C. Becker, Douglas I. Greenhaus, Jed R. Mandel, Timothy A. French, Robert G. Slaughter, Mark J. Washko, and Nick Goldstein were on the brief of industry intervenors in support of respondent.

        Daniel J. Popeo, Paul D. Kamenar, Peter Glaser, and Douglas A. Henderson were on the brief of amicus curiae Washington Legal Foundation in support of respondent.

        Edward W. Warren and Eric B. Wolff were on the brief of amicus curiae John D. Dingell (D-Michgan) in support of denial of petitions for review.

        Before: SENTELLE, RANDOLPH, and TATEL, Circuit Judges.

        OPINION

        RANDOLPH, Circuit Judge.

        Petitioners are twelve states, three cities, an American territory, and numerous environmental organizations. They are opposed by the Environmental Protection Agency as respondent, and ten states and several trade associations as intervenors. The controversy is about EPA's denial of a petition asking it to regulate carbon dioxide (CO sub2 ) and other greenhouse gas emissions from new motor vehicles under § 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1). EPA concluded that it did not have statutory authority to regulate greenhouse gas emissions from motor vehicles and that, even if it did, it would not exercise the authority at this time. 68 Fed.Reg. 52,922 (Sept. 8, 2003).

        I.

         We should say a few words about our jurisdiction under the Clean Air Act to review an EPA denial of a petition for rulemaking. Section 307(b)(1), 42 U.S.C. § 7607(b)(1), gives this court exclusive jurisdiction over "nationally applicable regulations promulgated, or final action taken, by the Administrator" under chapter 85 of the Act. The district courts, on the other hand, have jurisdiction over citizen suits to compel EPA to perform nondiscretionary acts or duties. 42 U.S.C. § 7604(a)(2); see Sierra Club v. Thomas, 828 F.2d 783, 787-92 (D.C.Cir.1987). Because EPA refused to promulgate "nationally applicable regulations" after being asked to do so, we have jurisdiction only if EPA thereby engaged in "final action." We can be sure that its denial of the rulemaking petition was "final." But did this constitute agency "action"? To answer that question we must consult the Administrative Procedure Act--specifically 5 U.S.C. § 551(13). The term "action" in § 307(b)(1) of the Clean Air Act, like the term "final," carries its traditional meaning in administrative law. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 478, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001); Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420, 428 (D.C.Cir.2004); Sierra Club v. Gorsuch, 715 F.2d 653, 656-57 (D.C.Cir.1983). Section 551(13) of the APA defines "agency action" as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act" (italics added). While § 307 of the Clean Air Act makes several APA provisions inapplicable--namely, 5 U.S.C. §§ 553-557 & 706--APA § 551 is not among them. EPA's denial of the rulemaking petition was therefore "final

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action," and since the petition sought regulations national in scope, § 307(b)(1) confers jurisdiction on this court to hear these consolidated cases.

        Another, related, point needs to be mentioned. Several of the petitions for judicial review treated a memorandum of EPA's General Counsel, Robert Fabricant, as "final action taken, by the Administrator" under § 307(b)(1). The memorandum, dated August 28, 2003, and addressed to the EPA Administrator, was entitled "EPA's Authority to Impose Mandatory Controls to Address Global Climate Change under the Clean Air Act." The General Counsel, after analyzing § 202(a)(1) of the Clean Air Act, and other legislative and executive actions, stated his belief that the Act "does not authorize regulation to address global climate change." He therefore withdrew a contrary memorandum issued in 1998 by one of his predecessors.

         The Fabricant memorandum, consisting of legal advice to the EPA Administrator, did not in itself constitute "final action" of the Administrator. To be sure, the Administrator adopted the "General Counsel's opinion" and relied on its analysis as one of the alternative grounds for rejecting the rulemaking petition. See 68 Fed.Reg. at 52,925. The Administrator's explanation incorporated many of the memorandum's passages verbatim, rephrased and reordered others, and expanded on the General Counsel's reasoning. Still, it is the Administrator's denial of the rulemaking petition, with the accompanying explanation, that represents the "final action" of the Administrator subject to judicial review under § 307(b)(1). The significance of the General Counsel's opinion, as set forth in his memorandum, is the Administrator's reliance on his reasoning in deciding the matter now before us.

         There is an additional jurisdictional issue presented, but not under the Clean Air Act. EPA claims that petitioners lack standing under Article III of the Constitution. Standing exists only...

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