Mass. v. E.P.A., No. 03-1361.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtRandolph
Citation415 F.3d 50
PartiesCommonwealth of MASSACHUSETTS, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Alliance of Automobile Manufacturers, et al., Intervenors
Decision Date15 July 2005
Docket NumberNo. 03-1365.,No. 03-1364.,No. 03-1363.,No. 03-1362.,No. 03-1368.,No. 03-1361.,No. 03-1366.,No. 03-1367.
415 F.3d 50
Commonwealth of MASSACHUSETTS, et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent
Alliance of Automobile Manufacturers, et al., Intervenors
No. 03-1361.
No. 03-1362.
No. 03-1363.
No. 03-1364.
No. 03-1365.
No. 03-1366.
No. 03-1367.
No. 03-1368.
United States Court of Appeals, District of Columbia Circuit.
Argued April 8, 2005.
Decided July 15, 2005.

Page 51

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 and Carol Iancu, Assistant Attorneys 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, Deputy Attorney General,

Page 52

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.

Page 53

Whatley, 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.

Judgment of the Court filed by Circuit Judge RANDOLPH.

Opinion filed by Circuit Judge RANDOLPH.

Opinion dissenting in part and concurring in the judgment filed by Circuit Judge SENTELLE.

Opinion dissenting in Nos. 03-1361, 03-1362, 03-1363, and 03-1364 filed by Circuit Judge TATEL.

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 (CO2) 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

Page 54

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...

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28 practice notes
  • Green Mountain Chrysler Plymouth Dodge v. Crombie, No. 2:05-CV-302.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 12, 2007
    ...Inc. v. Witherspoon, No. 1:04-cv-06663-REC-LJO (E.D. Cal. filed Dec. 7, 2004), and the Supreme Court's review of Massachusetts v. EPA, 415 F.3d 50 (D.C.Cir.2005), rev'd ___ U.S. ___, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). The requests were denied, on May 3, 2006, and February 15, Defendant......
  • Central Valle Chrysler-Jeep v. Witherspoon, No. CV F 04-6663 AWI LJO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 25, 2006
    ...The District of Columbia Circuit upheld the EPA's decision, and the case is currently before the Supreme Court. See Massachusetts v. EPA, 415 F.3d 50 (D.C.Cir.2005), cert. granted, ___ U.S. ___, 126 S.Ct. 2960, 165 L.Ed.2d 949 On December 21, 2005, CARB requested that the EPA grant the Cali......
  • Alon Ref. Krotz Springs, Inc. v. Envtl. Prot. Agency, No. 16-1052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 30, 2019
    ...after such sixtieth day" was not triggered. Our caselaw confirms this framing of the jurisdictional issue. In Massachusetts v. EPA , 415 F.3d 50 (D.C. Cir. 2005), this Court held that EPA's denial of a petition to regulate greenhouse gas emissions as air pollutants was itself "final action"......
  • Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler, No. 18-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 10, 2020
    ...F.3d at 899, EPA has not generated a factual dispute regarding injury-in-fact, causation, or redressability. See Massachusetts v. EPA , 415 F.3d 50, 66 (D.C. Cir. 2005) (Tatel, J., dissenting) ("[I]f EPA wants to challenge the facts petitioners have set forth in their affidavits, it has an ......
  • Request a trial to view additional results
23 cases
  • Green Mountain Chrysler Plymouth Dodge v. Crombie, No. 2:05-CV-302.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 12, 2007
    ...Inc. v. Witherspoon, No. 1:04-cv-06663-REC-LJO (E.D. Cal. filed Dec. 7, 2004), and the Supreme Court's review of Massachusetts v. EPA, 415 F.3d 50 (D.C.Cir.2005), rev'd ___ U.S. ___, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). The requests were denied, on May 3, 2006, and February 15, Defendant......
  • Central Valle Chrysler-Jeep v. Witherspoon, No. CV F 04-6663 AWI LJO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 25, 2006
    ...The District of Columbia Circuit upheld the EPA's decision, and the case is currently before the Supreme Court. See Massachusetts v. EPA, 415 F.3d 50 (D.C.Cir.2005), cert. granted, ___ U.S. ___, 126 S.Ct. 2960, 165 L.Ed.2d 949 On December 21, 2005, CARB requested that the EPA grant the Cali......
  • Alon Ref. Krotz Springs, Inc. v. Envtl. Prot. Agency, No. 16-1052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 30, 2019
    ...after such sixtieth day" was not triggered. Our caselaw confirms this framing of the jurisdictional issue. In Massachusetts v. EPA , 415 F.3d 50 (D.C. Cir. 2005), this Court held that EPA's denial of a petition to regulate greenhouse gas emissions as air pollutants was itself "final action"......
  • Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler, No. 18-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 10, 2020
    ...F.3d at 899, EPA has not generated a factual dispute regarding injury-in-fact, causation, or redressability. See Massachusetts v. EPA , 415 F.3d 50, 66 (D.C. Cir. 2005) (Tatel, J., dissenting) ("[I]f EPA wants to challenge the facts petitioners have set forth in their affidavits, it has an ......
  • Request a trial to view additional results
4 books & journal articles
  • Global Warming: The Ultimate Public Nuisance
    • United States
    • Environmental Law Reporter Nbr. 39-3, March 2009
    • March 1, 2009
    ...74. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52922, 52928 (Sept. 8, 2003). 75. Massachusetts v. EPA, 415 F.3d 50, 35 ELR 20148 (D.C. Cir. 2005). [Editors’ Note: In a landmark decision, the Court recently reversed the U.S. Court of Appeals for the District of ......
  • (If) Things Fall Apart: Searching for Optimal Regulatory Solutions to Combating Climate Change Under Title I of the Existing CAA if Congressional Action Fails
    • United States
    • Environmental Law Reporter Nbr. 40-9, September 2010
    • September 1, 2010
    ...62 and therefore was not a “separate and third criterion.” 63 herefore, due to Train , it is possible that 53. See Massachusetts v. EPA, 415 F.3d 50, 70, 35 ELR 20148 (D.C. Cir. 2005) (Tatel, J., dissenting) (explaining that the absurd results canon may justify an avoidance of the NAAQS pro......
  • Controlling Global Climate Change
    • United States
    • Air pollution control and climate change mitigation law
    • August 18, 2010
    ...1470, citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). 164. 415 F.3d 50 (D.C. Cir. 2005). concerning the meaning of CAA §202(a)(1): whether EPA has the statutory authority to regulate GHG emissions from new motor v......
  • NEPA's Insatiable Optimism
    • United States
    • Environmental Law Reporter Nbr. 39-7, July 2009
    • July 1, 2009
    ...of Climate Change: The Role of the Intergovernmental Panel on Climate Change ch. 9 (2007). 14. Commonwealth of Massachusetts v. EPA, 415 F.3d 50, 61, 62-64, 67-81, 35 ELR 20148 (D.C. Cir. 2005) (Opinion of Tatel, C.J., dissenting) (science accurately portrayed). 15. Id . at 50, 56-59 (D.C. ......

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