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Team Number 14

BRIEF

C.A. No. 20-000123

UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

CLIMATE HEALTH AND WELFARE NOW,

Plaintiff-Appellee-Cross-Appellant,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendant-Appellant,

-and-

COAL, OIL, AND GAS ASSOCIATION,

Intervenor-Defendant-Appellant-Cross Appellee.

On Appeal from the United States District Court for the District of New Union in No. 66-CV-2019, Judge Romulus N. Remus

BRIEF FOR DEFENDANT-APPELLANT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

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TABLE OF CONTENTS Statement of Jurisdiction ................................................................................................................. 6

Statement of the issues .................................................................................................................... 6

Statement of the case ...................................................................................................................... 7

I. FACTS ................................................................................................................................. 7

II. PROCEDURAL HISTORY ................................................................................................ 8

SUMMARY OF THE ARGUMENT ............................................................................................. 8

Standard of review ........................................................................................................................ 11

argument ....................................................................................................................................... 12

I. THE DISTRICT COURT LACKED JURISDICTION TO ADJUDICATE CHAWN’S

CAA § 304(a) CLAIM BECAUSE CAA § 307(b)(1) REQUIRES THIS CLAIM TO BE

HEARD IN THE D.C. CIRCUIT COURT. .............................................................................. 12

A. The District Court Did Not Possess the Requisite Jurisdiction ...................................... 12

B. CHAWN Fails to Meet All Three Requirements of CAA § 304(a) ............................... 12

C. Even If the EPA Has a Non-Discretionary Duty, This Court Does Not Have Jurisdiction

to Adjudicate This Matter. .................................................................................................... 14

II. THE 2009 ENDANGERMENT FINDING IS VALID WITH RESPECT TO PUBLIC

WELFARE BECAUSE EPA PERMISSIBLY UNDERSTOOD AND APPLIED THE

PHRASE, “REASONABLY ANTICIPATED TO ENDANGER” IN CAA § 202(a). ............ 14

A. It is Within the EPA’s Agency Discretion to Interpret and Apply the Term “reasonably

anticipated to endanger” in CAA § 202(a). .......................................................................... 15

B. EPA permissibly interpreted and applied the term “reasonably anticipated to endanger.”

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III. THE 2009 ENDANGERMENT FINDING IS NOT VALID IN TERMS OF PUBLIC

HEALTH. .................................................................................................................................. 19

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IV. THE EPA HAS A DISCRETIONARY DUTY TO LIST GHGs AS A CRITERIA

POLLUTANT UNDER CAA § 108(a)(1)(C). ......................................................................... 23

A. A Plain Language Reading of “plan” Under CAA § 108(a)(3) Permits the EPA Discretion

to List GHGs as a Criteria Pollutant. .................................................................................... 24

B. The District Court Improperly Followed the Train Decision as GHGs are Distinct from

Traditional CAA Criteria Pollutants. .................................................................................... 27

C. Even if the Plain Language of CAA § 108 is Ambiguous, the EPA’s Interpretation Should

be Afforded Chevron Deference. .......................................................................................... 28

D. The Lack of Statutory Deadline Under CAA § 108(a) Evidences a Discretionary Duty.

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V. THE EPA’S DECISION TO NOT LIST GHGs UNDER CAA § 108 IS NOT

UNREASONABLY DELAYED. ............................................................................................. 30

A. The EPA Has Discretion Whether to Act ....................................................................... 30

B. The District Court Improperly Applied the Standard of Review ................................... 32

CONCLUSION ............................................................................................................................. 37

TABLE OF AUTHORITIES

Cases   Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) ....................... 11   Massachusetts v. EPA, 549 U.S. 497, 527 (2007) ....................................................................... 27   Pub. Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993) ....................... 32  Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967) ........................................................ 30  Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) ................................................................... 30  Darby v. Cisneros, 509 U.S. 137, 148 (1993) .............................................................................. 30  Lawson v. FMR, LLC, 571 U.S. 429, 440 (2014) ........................................................................ 20  Massachusetts v. E.P.A., 549 U.S. 497, 535, (2007) ................................................................... 16  Michigan v. E.P.A., 576 U.S. 743, 755–56 (2015) ....................................................................... 14  Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

................................................................................................................................................... 32  Nat. Res. Def. Council, Inc. v. U.S.E.P.A., 824 F.2d 1146, 1150 (D.C. Cir. 1987) ..................... 14  Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004). ..................................... 30  See Nnebe v. Davis, 931 F.3d 66, 81 (2d. Cir. 2019) ................................................................... 22

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 See WildEarth Guardians v. Jackson, 885 F.Supp. 2d 1112, 1116 (D.N.M 2012) ...................... 25  Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987) ....................................................... 26  United States v. Mead Corp., 533 U.S. 218, 220 (2001) ............................................................. 12  Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. Accrediting Council for Independent Colleges and Schools v. Devos, 303 F.Supp.3d 77, 94 (D.C.

Cir. 2018) .................................................................................................................................. 31 Barnhart v. Walton, 535 U.S. 212, 226 (2002) ............................................................................. 16 Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1749 (2020) ................................................. 20 Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962) ............................................ 32 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–45 (1984) . 7 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–845 (1984)

................................................................................................................................................... 25 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) ................... 13, 16 citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978) .............................. 9 Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012). ........................... 23 Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 108 (D.C. Cir. 2012) ............ 14 Dept. of Commerce v. New York, 139 S.Ct. 2551, 2567 (2019) ............................................. 30, 31 Dept. of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891, 1905

(2020) ........................................................................................................................................ 29 Dept. of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891, 1905

(2020) .......................................................................................................................................... 8 Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1978). .................................................................. 15 F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) ............................................... 29 Franklin v. Massachusetts, 505 U.S. 788, 796 (1992) .................................................................. 29 Heckler v. Chaney, 470 U.S. 821, 838 (1985) .............................................................................. 27 Heckler v. Chaney, 4790 U.S. 821, 831 (1985) ............................................................................ 32 Kontric v. Ryan, 540 U.S. 443, 444 (2004) ..................................................................................... 9 Lincoln v. Vigil, 508 U.S. 182, 184 (1993) ................................................................................... 32 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44 (1983) ............ 8 Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463

U.S. 29, 43 (1983) ..................................................................................................................... 29 Nat. Res. Def. Council, Inc. v. U.S.E.P.A., 824 F.2d 1146 (D.C. Cir. 1987) ................................ 17 Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990) .................................. 32 quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) ... 32 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).   .................................................................. 18 Telecomm. Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984) ....... 27 Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 460 (2001) ...................................... 14 WildEarth Guardians at 1118 ....................................................................................................... 26 Statutes: 42 U.S.C. § 7408 .................................................................................................................... passim

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42 U.S.C. § 7408(a) .................................................................................................................. 4, 32 42 U.S.C. § 7412 ........................................................................................................................... 17 42 U.S.C. § 7521(a) .................................................................................................... 12, 13, 16, 17 42 U.S.C. § 7521(a)(1) ............................................................................................................ 12, 13 42 U.S.C. § 7604 .................................................................................................................... passim 42 U.S.C. § 7604(a) .......................................................................................................... 5, 6, 8, 10 42 U.S.C. § 7604(a)(2) .................................................................................................................. 10 42 U.S.C. § 7607(b) ............................................................................................................... passim 42 U.S.C. 7521(a)(1). .................................................................................................................... 12 5 U.S.C.  § 701(a)(2) ............................................................................................................... 30, 31 5 U.S.C. § 551 et seq................................................................................................................. 8, 29 5 U.S.C. § 701(a)(1) ...................................................................................................................... 30 5 U.S.C. § 706 ........................................................................................................................ passim 5 U.S.C. § 706(2)(A) ..................................................................................................... 8, 29, 30, 31 Federal Regulations: 40 C.F.R. § Pt. 51, App. W. (2017) .............................................................................................. 28 Federal Register: 2009 Endangerment Finding, 74 Fed. Reg. 66,496, 66,496–546 (Dec. 15, 2009) (to be codified at

40 C.F.R. Ch. I) .................................................................................................................. passim Final National Ambient Air Quality Standard for Ozone, (73 Fed. Reg. 16,436, 16,436 (Dec. 15,

2007) ......................................................................................................................................... 19 Other Sources of Authority: Howard M. Crystal, et.al., Returning to Clean Air Act Fundamentals: A Renewed Call to

Regulate Greenhouse Gases Under the National Ambient Air Quality Standards (NAAQS) Program, 31 GEO. ENVTL. L. REV. 233, 238 (2019) ................................................................ 23

 Bradley George Hubbard, Deference to Agency Statutory Interpretations First Advanced in Litigation? The Chevron Two-Step and the Skidmore Shuffle, 80 U. CHI. L. REV. 447, 481 (2013).  .............................................................................................................................. 17

FED. R. CIV. P. 24(A) ....................................................................................................................... 4 FED. R. CIV. P. 82 ............................................................................................................................ 9 ENVIRONMENTAL PROTECTION AGENCY, EPA ADMINISTRATOR LISA JACKSON

ANNOUNCES ENDANGERMENT FINDINGS, available at https://www.youtube.com/watch?v=0TI3HnvJjtM (last visited Nov. 20. 2020). ........................................................................................................................................ 14

42 Webster’s Third New International Dictionary (2002) ............................................................ 20 ENVIRONMENTAL PROTECTION AGENCY: INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND

SINKS: 1990-2018 ..................................................................................................................... 28 L. Jaffe, Judicial Control of Administrative Action 372 (1965) ................................................... 30

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K. Davis, Administrative Law § 257, p. 925 (1951). .................................................................... 30

STATEMENT OF JURISDICTION

The Environmental Protection Agency (EPA) has not listed Greenhouse Gases (GHGs) as

an air criteria pollutant in accordance with Section 108 of the Clean Air Act (CAA). 42 U.S.C. §

7408(a) (1998). This inaction constitutes an agency action. Heckler v. Chaney, 470 U.S. 821, 838

(1985). Plaintiff-Appellee is within its right to seek judicial review of EPA’s administrative action

in promulgating the 2009 Endangerment Finding (EF); however, Plaintiff-Appellee failed to

properly plead all of the requirements of the citizen suit provision of the CAA, authorizing

jurisdiction by which a citizen may commence a civil action. 42 U.S.C. § 7604(a). Furthermore,

Plaintiff-Appellee failed to file this action in the proper court, the United States Court of Appeals

for the District of Columbia, which has exclusive jurisdiction over review of administrative

agency’s actions pursuant to CAA § 307(b). 42 U.S.C. § 7607(b). Thus, this Court has jurisdiction

to determine the validity of both the District Court’s jurisdiction and the EF, but it does not have

jurisdiction over the determination whether EPA has duty to list GHGs as criteria pollutants and

whether the decision was unreasonably delayed.

STATEMENT OF THE ISSUES

I. Whether the District Court lacked jurisdiction over CHAWN’s claim that EPA unreasonably delayed promulgating national ambient air quality standards under CAA § 307(b), which requires petitions for review of agency action based on determinations of nationwide scope and effect to be heard exclusively by the D.C. Circuit.

II. Whether EPA permissibly determined that GHGs emissions endanger public welfare.

III. Whether EPA is entitled to deference on its finding, espoused during litigation, that the 2009 Endangerment Finding is not valid as to public health.

IV. Whether the EPA is subject to a nondiscretionary duty to list GHGs as a criteria pollutant under CAA § 108.

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V. Whether EPA’s decision not to list GHGs as criteria pollutants under CAA § 108 constitutes an unreasonable delay.

STATEMENT OF THE CASE

I. FACTS

In 1999, several environmental groups petitioned EPA to issue an endangerment finding

under CAA § 202(a), which would trigger regulation of GHG emissions from automobiles and

other mobile sources. R. at 6. On September 8, 2003, EPA denied the petition, citing GHGs as

incompatible with “air pollutants” of the CAA. Id. This finding spurred many lawsuits

including, Massachusetts v. EPA, in which the United States Supreme Court held that GHGs “fit

squarely in the definition of “air pollutants” subject to potential regulation under the Clean Air

Act.” 549 U.S. 497 (2007). This ruling forced the EPA to take second look at the section 202

petition, and ultimately EPA issued a formal finding of endangerment on December 15, 2009. R.

at 6. The EF named six greenhouse gases, carbon dioxide, nitrous oxide, hydrofluorocarbons,

perfluorocarbons, sulfur hexafluoride, and methane. Id. It categorized all six gases as a pollutant

called GHGs. Id. The EF also concluded that GHGs presented an endangerment to both public

health and welfare. R. at 7.

Immediately after the EF was issued, CHAWN joined other environmental groups in filing

a petition for EPA Rulemaking. R. at 15. EPA chose not to respond to that petition. R. at 13.

Instead, in the years after issuing the EF, EPA promulgated numerous regulatory measures to

address the effect of GHGs, including new passenger vehicle standards, new source performance

standards, and best available control technology guidance under Title I of the CAA. R. at 7. Further

in 2015, EPA issued the Clean Power Plan regulations directing state CAA implementation plans

to achieve GHG emissions consistent with EPA guidance on emission reductions under CAA §

111(d). Id.

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Many of these CAA rules and regulatory programs targeting GHGs faced judicial

challenges. Notably, the United States Supreme Court partially struck down the Tailoring Rule

and the scope of new source GHG limits. See Utility Air Regulatory Group, v. E.P.A., 573 U.S.

302 (2014). These GHG regulatory efforts faced further challenges through rollbacks by the new

administration in 2017 including the repeal of the Clean Power Plan and relaxing GHG standards

for new motor vehicles as well as new and existing power plants. R. at 7. Despite these significant

efforts to reverse course on previously established GHG regulation, the 2009 EF has been left

untouched. Id. To date, the EPA has not listed GHGs as a criteria pollutant under CAA § 108.

II. PROCEDURAL HISTORY

In October of 2019, Plaintiff-Appellee filed a complaint against EPA in the District Court

for the District of New Union. R. at 5. Coal Oil and Gas Association successfully moved the Court

to intervene pursuant to rule 24(a) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 24(a).

On August 15, 2020, the District Court issued an opinion and order on cross motions for summary

judgement. R. at 14. The Court granted summary judgment in part for Plaintiff-Appellee, declaring

that the EF was valid regarding public welfare, EPA was under a nondiscretionary duty to list

GHGs as a criteria pollutant, and EPA had unreasonably delayed designating such pollutants as a

criteria pollutant. R. at 13. The Court also granted intervenor COGA’s motion for summary

judgment declaring the public health portion of the EF as contrary to law. R. at 14. EPA has filed

a timely notice of appeal. R. at 2.

SUMMARY OF THE ARGUMENT

As a threshold matter, the District Court lacks jurisdiction to adjudicate Plaintiff-

Appellee's unreasonable delay claim under CAA § 307(b)(1). 42 U.S.C. § 7607(b)(1). To promote

continuity and efficiency, Congress prescribes that a “petition for review of action of the [agency]

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in promulgating any national primary or secondary ambient air quality standard . . . may be filed

only in the United States Court of Appeals for the District of Columbia.” Id. Additionally, a citizen

may only petition in the D.C. Circuit “if such action is based on a determination of nationwide

scope and effect.”  Id. Because the Plaintiff-Appellee's petition for judicial review of EPA’s action

relates to the agency’s promulgation of ambient air quality standards with nationwide effects, this

action should have been filed in the D.C. Circuit Court. Thus, the District Court did not have

jurisdiction to adjudicate this claim. 

This Court may raise sua sponte the issue of jurisdiction, but it may not authorize

jurisdiction under the CAA. The Plaintiff-Appellee must sufficiently plead one of three

requirements under CAA § 108(a) in order for a court to have jurisdiction over its citizen suit. 42

U.S.C. § 7604(a). Plaintiff-Appellee has failed to meet those pleading requirements. Id.

Additionally, because EPA has discretion to determine whether to list GHGs as a criteria pollutant,

judicial review of the EPA’s decision is precluded under Section 701 of the APA.  5 U.S.C. § 701.

Accordingly, the District Court did not have jurisdiction to adjudicate Plaintiff-Appellee's

unreasonable delay claim.

The 2009 EF is valid with respect to an endangerment of public welfare because EPA

permissibly understood and applied the phrase, “reasonably anticipated to endanger” in CAA §

202(a). 42 U.S.C. § 7521(a)(1). Chevron deference applies to EPA’s position because the statute

is silent about how to make the determination whether GHG emissions endanger public welfare,

and EPA’s finding that GHGs do endanger public welfare is based on a permissible construction

of the statute and sound evidence. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837, 863 (1984). Endangerment and Cause or Contribute Findings for Greenhouse Gases

Under Section 202(a) of the CAA, COGA’s worries about absurd results are not relevant to the

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purely scientific determination whether GHGs endanger public welfare. 42 U.S.C. § 7521. EPA’s

finding is entitled to deference because it is a final agency finding that satisfies the Chevron test.

EPA is entitled to deference on its new finding, espoused during litigation, that the 2009

Endangerment Finding is not valid with respect to an endangerment of public health. Agency

positions, even those presented for the first-time during litigation, are entitled

to Chevron deference. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863

(1984); Barnhart v. Walton, 535 U.S. 212, 226 (2002). If this Court does not

apply Chevron deference, EPA is at minimum entitled to Skidmore deference to its new finding.

EPA’s new position is that effects on “public health” need to be defined as effects on human

health caused by the presence of a pollutant in the ambient air. EPA has permissibly dismissed its

prior held interpretation of effects on public health that included tangential impacts of climate

change. EPA’s new position is an interpretation of CAA § 202(a) that is more consistent with the

statutory scheme of the CAA and that is an appropriate conclusion, given the limited information

EPA has on the record about the effects of inhaling GHGs on public health. 42 U.S.C. § 7521.

EPA under CAA § 108(a) does not have a nondiscretionary duty to list GHGs as criteria

pollutants. The statutory language of CAA § 108(a) requires three separate criteria to be met in

order to invoke the mandatory duty required by the section. Precedent used to justify the premise

that the section creates a nondiscretionary duty to act focuses only on the first two criterion and

completely ignores the third. This Court must consider sub-paragraph (c) of CAA § 108(a), which-

affords the Administrator discretion whether to regulate a pollutant under this provision. 42 U.S.C.

§ 7408(a). Even if the Court finds ambiguity in the statutory language, EPA’s interpretation should

be afforded Chevron deference, since is a permissible construction of the statute. Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–45 (1984). At

minimum, Skidmore deference should be afforded to EPA’s interpretation. See Skidmore v. Swift

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& Co., 323 U.S. 134, 140 (1944). Moreover, the interpretation that the Administrator has discretion

whether to list GHGs is further supported by the lack of a date-certain deadline within CAA

§ 108(a). 42 U.S.C. § 7408(a).

The time EPA has taken to understand the scope of the effects of GHGs on public health

is not an unreasonable delay. First, EPA has discretion to determine if and when to list GHGs as a

criteria pollutant under CAA § 108(a). Id. EPA’s decision to continue to research GHGs is

reasonable, given the potential negative economic implications that may arise from hasty

regulations premised on an incomplete record. Additionally, the District Court was incorrect that

EPA unreasonably delayed listing GHGs because the District Court applied the wrong standard of

review. The District Court should have applied the standard for judicial review of agency action

under the APA. 5 U.S.C. § 551 et seq. (1966). Because EPA’s decision is not arbitrary, capricious,

or in violation of any law, the District Court’s determination that EPA’s action is unreasonably

delayed was improper under the APA.

STANDARD OF REVIEW

This case is subject to the standard of review set forth in APA § 706, which requires Courts

to ask whether the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review “is a narrow one,” and

the court is not “to substitute its judgment for that of the agency.” F.C.C. v. Fox Television Stations,

Inc., 556 U.S. 502, 513 (2009) (internal quotation marks omitted). The pinnacle question is

“whether the [agency’s] decision was based on a consideration of relevant factors and whether

there has been a clear error of judgment.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43-44 (1983); Dept. of Homeland Security v. Regents of the University of

California, 140 S.Ct. 1891, 1905 (2020). 

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ARGUMENT

I. THE DISTRICT COURT LACKED JURISDICTION TO ADJUDICATE CHAWN’S CAA § 304(a) CLAIM BECAUSE CAA § 307(b)(1) REQUIRES THIS CLAIM TO BE HEARD IN THE D.C. CIRCUIT COURT.

A. The District Court Did Not Possess the Requisite Jurisdiction

As a matter of law, the District Court did not have jurisdiction over this matter under CAA

§ 304(a).  42 U.S.C. § 7604(a). Section 307(b) of the CAA outlines the proper procedure by which

a citizen may seek judicial review of an agency action. 42 U.S.C. § 7607(b). Specifically, CAA §

307(b)(1) provides that:

[a] petition for review of action of the [agency] in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title . . . or any other nationally applicable regulations promulgated, or final action taken, by the [agency] under this chapter may be filed only in the United States Court of Appeals for the District of Columbia.

42 U.S.C. § 7607(b)(1) (emphasis added). In this case, CHAWN filed this action in the District

Court for the District of New Union on October 15, 2019, seeking judicial review of the EPA’s

decision to not list GHGs as an air quality criteria pollutant and to continue to research GHGs

effects on public health. Climate Health and Welfare Now, slip op. at 5. However, pursuant to the

CAA’s statutory requirement under Section 307(b)(1), the District Court for the District of New

Union was the wrong forum to adjudicate this matter. 42 U.S.C. § 7607(b)(1).   

B. CHAWN Fails to Meet All Three Requirements of CAA § 304(a)

This Court raised the issue of jurisdiction sua sponte after the district court’s issuance of

its order on August 15, 2020. Id. at 2. Courts may not create the jurisdiction necessary to hear a

claim brought under the citizen suit provision; only the enabling statute may do so.  Kontric v.

Ryan, 540 U.S. 443, 444 (2004) (citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365,

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370 (1978) (holding that “[the] Federal Rules of Civil Procedure do not create or withdraw federal

jurisdiction,” only the applicable statute); see also FED. R. CIV. P. 82. 

CHAWN fails as a matter of law to properly satisfy any of the civil suit requirements

of CAA § 304. 42 U.S.C. § 7604. In specific, section 304(a) of the CAA enables a plaintiff to

commence a civil action:

(1) against any person . . . who is alleged to have violated or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or

(3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I or part D of subchapter I or who is alleged to have violated or to be in violation of any condition of such permit.

42 U.S.C. § 7604(a). In order for a plaintiff to bring a claim against an administrative agency or

person under this statute, the plaintiff must qualify under one of the three applicable clauses.  Id.

Here, CHAWN is precluded from bringing a claim under CAA § 304(a) because CHAWN does

not meet any of the requirements to bring a civil suit. See id.

CHAWN failed to meet the threshold pleading requirements of CAA § 304(a).

Assuming, arguendo, that CHAWN did plead under this statute, this Court still would not have §

304(a) jurisdiction over CHAWN’s claim. Id. CHAWN fails to meet CAA § 304(a)(1) because the

EPA is not in violation of emission standards. 42 U.S.C. § 7604(a)(1). Next, CAA § 304(a)(3) is

not applicable because the EPA is not operating a facility without the use of a permit and CHAWN

has not expressed any concern to the contrary. 42 U.S.C. § 7604(a)(3). Plaintiff fails to meet CAA

§ 304(a)(3) because EPA has discretion to list GHGs as air quality criteria pollutants. See 42

U.S.C. § 7604(a)(2); see also 42 U.S.C. § 7408(a); see discussion infra. Part IV (EPA’s

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Discretion). In sum, CHAWN did not properly plead jurisdiction under Section 304(a) of the

CAA. Even if CHAWN did properly allege jurisdiction under CAA § 304(a)(2), 42 U.S.C. §

7604(a)(2), the EPA has a discretionary duty to list GHGs as a criteria pollutant thus precluding

judicial review of the agency’s action under APA Section 701(a)(2), APA § 304(a)(2), which

precludes judicial review of an agency’s “action [that] is committed to agency discretion by law.”

C. Even If the EPA Has a Non-Discretionary Duty, This Court Does Not Have Jurisdiction to Adjudicate This Matter.

Even if this court finds that a non-discretionary duty existed under CAA § 304(b), this

court, in addition to the district court, does not have jurisdiction to adjudicate this matter. 42

U.S.C. § 7607(b). As such, this Court should dismiss petitioner’s present action.

The Plaintiff originally filed this action in the District Court for the District of New Union

which is now under review by this court, the Twelfth Circuit Court of Appeals. This Court is the

incorrect court to hear this matter pursuant to CAA § 307(b). Id. The statute states in relevant

part, that “any other nationally applicable regulations promulgated, or final action taken by the

Administrator under this chapter may be filed only in the United States Court of Appeals for the

District of Columbia.” 42 U.S.C. § 7607(b) (emphasis added). Therefore, this Court is the

incorrect court to adjudicate this matter on the merits. As such, this Court should dismiss this

matter for lack of jurisdiction pursuant to CAA § 307(b). 42 U.S.C. § 7607(b).

II. THE 2009 ENDANGERMENT FINDING IS VALID WITH RESPECT TO PUBLIC WELFARE BECAUSE EPA PERMISSIBLY UNDERSTOOD AND APPLIED THE PHRASE, “REASONABLY ANTICIPATED TO ENDANGER” IN CAA § 202(a).

Congress gave EPA the authority to determine the requirements for making a finding of

endangerment to public health or welfare in CAA § 202(a). 42 U.S.C. § 7521(a). EPA’s

interpretation and application of the statutory language was based on a permissible construction of

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the statute; therefore, this Court should defer to the agency’s finding that GHG emissions are

reasonably anticipated to endanger public welfare. 

A. It is Within the EPA’s Agency Discretion to Interpret and Apply the Term “reasonably anticipated to endanger” in CAA § 202(a).

The Supreme Court outlined a two-step process for judicial review of an agency’s

interpretation of a statute that the agency is charged with administering.  Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). The first step is to examine “whether

Congress has directly spoken to the precise question at issue.” Id. If Congress has not, and there is

statutory silence or ambiguity with respect to the specific issue, then step two of Chevron requires

the court to limit its consideration to “whether the agency’s answer is based on a permissible

construction of the statute,” even if the court would have otherwise reached a contrary

conclusion. Id. This is the appropriate reviewing standard for an EPA action because, (1) agencies

are more democratically accountable than courts, and (2) Congress has given the EPA the main

responsibility for implementing the statute. Id. After deciding Chevron, the Supreme Court

decided another case, United States v. Mead Corp., 533 U.S. 218, 220 (2001), and added a step

zero to the analysis whether to defer to an agency position. Step zero requires the reviewing court

to determine whether the agency had authority to issue binding legal rules when it made the

decision. Id. In this case, step zero is met easily because the endangerment finding is a binding

legal rule that was subject to the notice and comment process. See 2009 Endangerment Finding, 74

Fed. Reg. 66,496, 66,496–546 (Dec. 15, 2009) (to be codified at 40 C.F.R. Ch. I).

The specific issue before this Court is whether EPA’s finding that GHG emissions are

reasonably anticipated to endanger public welfare is valid.  Climate Health and Welfare Now, slip

op. at 2. When EPA made the EF, it was interpreting and applying the statutory language of CAA

§ 202(a)(1).  74 FR 66495, 66497. Section 202 guides the EPA Administrator to regulate any

16

pollutants, “which in his judgment cause, or contribute to, air pollution which may reasonably be

anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). The only other guidance

in the Clean Air Act about how to determine whether public welfare is endangered is Congress’s

definition of welfare:  

All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pollutants.

 42 U.S.C. 7602(h). However, Congress has not directly spoken to how to determine

whether welfare is reasonably anticipated to be endangered.  See 42 U.S.C. 7521(a)(1).

That decision is left to the discretion of the agency, therefore step one of

the Chevron test has been satisfied.

B. EPA permissibly interpreted and applied the term “reasonably anticipated to endanger.”

Since step one of Chevron is met, this Court can move on to step two and consider whether

EPA’s finding of endangerment to public welfare is “based on a permissible construction of the

statute.”  Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 (1984). To prevail

on its challenge to EPA’s interpretation and application of the statue, COGA needs to establish

that CAA § 202(a) unambiguously compels EPA to consider economic costs of regulating

GHGs when determining whether GHGs endanger public welfare. 42 U.S.C. § 7521(a). In the

alternative, it would need to show that EPA was unreasonable in considering the best available

and most widely recognized scientific evidence when it made the endangerment finding.   

i. The phrase “reasonably anticipated to endanger . . . public welfare” does not unambiguously require EPA to consider costs of regulation when deciding whether public welfare is endangered.

17

COGA takes issue with the finding of endangerment to public welfare and asserts that the

Endangerment Finding failed to consider the absurd regulatory policy impacts that it alleges would

follow from the EF. R. at 9. The result that COGA alleges would be absurd is that regulation

of GHG emissions would severely limit the market for its products. R. at 5. COGA argues that EPA

should have considered the costs of regulation to industry stakeholders in making its determination

whether GHG emissions endanger public welfare. R. at 5.   

What COGA fails to acknowledge is that CAA § 202(a)(1) only directs EPA to make a

determination whether GHG emissions endanger public welfare. 42 U.S.C. § 7521(a)(1). “Where

the Clean Air Act expressly directs EPA to regulate on the basis of a factor that on its face does

not include cost, the Act normally should not be read as implicitly allowing the Agency to consider

cost anyway.” Michigan v. E.P.A., 576 U.S. 743, 755–56 (2015) (citing Whitman v. American

Trucking Assns., Inc., 531 U.S. 457, 460 (2001)). The statute does not direct EPA to consider the

economic costs of regulation that might follow a finding of endangerment. Although the definition

of welfare in the Act includes a consideration of effects on economic values, the consideration is

whether the emission of the pollutant endangers economic values, not the regulation of the

pollutant. 42 U.S.C. §§ 7521(a)(1), 7602(h) (emphasis added).   

The District Court was correct when it stated that policy and absurdity arguments are not

relevant factors that EPA must consider in making the purely scientific determination whether a

pollutant in its judgment causes or contributes to air pollution that may reasonably be anticipated

to endanger public health or welfare. R. at 9. Other courts have similarly concluded that cost and

policy considerations are irrelevant to the threshold determination of the degree of impact of a

pollutant on public health and welfare. See Coalition for Responsible Regulation, Inc. v. EPA, 684

F.3d 102, 108 (D.C. Cir. 2012); Nat. Res. Def. Council, Inc. v. U.S.E.P.A., 824 F.2d 1146, 1150

(D.C. Cir. 1987).   

18

This is not to say that EPA should not consider cost at all when determining how to regulate

pollutants. Once EPA has determined that a pollutant needs to be regulated because it endangers

public health or welfare, then cost-benefit analysis can take place. See discussion supra Part I. In

issuing the EF, the EPA deviated from the normal method of promulgating endangerment findings.

Previously, with other air pollutants that it has regulated, EPA has issued endangerment findings

simultaneously with the rules regulating those pollutants. 42 Fed. Reg. 410, 410 (April 28,

1971); see also 36 Fed. Reg, 84, 86 (April 30, 1971) (establishing primary and secondary ambient

air quality standards on April 28, 1971, for sulfur dioxide, particulate matter, carbon monoxide,

photochemical oxidants, hydrocarbons, and nitrogen dioxide).

The EPA specifically did not do that with the EF regarding GHGs, and instead issued the

EF first, to allow time for what would be a complicated process of developing policies to

regulate GHGs that would allow for reduction of GHG emissions without gravely harming the

economy. See ENVIRONMENTAL PROTECTION AGENCY, EPA ADMINISTRATOR LISA JACKSON

ANNOUNCES ENDANGERMENTFINDINGS, available at https://www.youtube.com/watch?v=0TI3Hn

vJjtM (last visited Nov. 20, 2020).  By issuing the EF first, and then taking more time to develop

regulations based on that legal groundwork, EPA addressed the argument that COGA is making—

that regulating GHGs would have a profound economic impact on GHG emitters. EPA proceeded

thoughtfully, taking into account all comments that were submitted during the notice and comment

period, and gave appropriate time to policy makers to develop rules based on the EF.

ii. EPA reasonably relied on the best available scientific evidence when it made its finding of endangerment to public welfare.

EPA based its finding on the published findings of several international and national

scientific review bodies, and the vast majority of peer reviewed scientific literature about the

effects of GHG emissions. R. at 9. COGA asserts that the science relied on by EPA in making the

19

decision that GHG emissions endanger public welfare is too uncertain to support a finding

of endangerment because a tiny fraction of data indicates that climate change may not be as dire

as the rest of the world thinks it is. Id.  This is akin to saying because there is a small change that

a Category 5 hurricane might turn away at the last minute, it is imprudent for people to evacuate

the waterfront. If the majority of the available weather data says that a hurricane is coming, state

governments issue evacuation orders. The agency’s analysis regarding GHG emissions should

similarly rely on the majority of the available data.

When Congress wrote the Clean Air Act, it intended for EPA to regulate to prevent

potentially grave harms even in the face of uncertainty about the scope and causation of those

harms. See Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1978). EPA has a duty to look at the

record before it, and if EPA reasonably concludes based on that record that the pollutant will

endanger public health or welfare, EPA has a duty to make a finding of endangerment or ground

its reasoning for not doing so in a statute.  Massachusetts v. E.P.A., 549 U.S. 497, 535, (2007).  By

arguing that the science does not support an endangerment finding, COGA is asking the EPA to

neglect its duty to consider the totality of the evidence at hand, which overwhelmingly indicates

that GHGs endanger public welfare. See 2009 Endangerment Finding, 74 Fed. Reg. 66,496,

66,496–546 (Dec. 15, 2009) (to be codified at 40 C.F.R. Ch. I). 

III. THE 2009 ENDANGERMENT FINDING IS NOT VALID IN TERMS OF PUBLIC HEALTH.

A. This Court Should Give Deference to EPA’s Position that the Endangerment Finding is Not Valid as it Pertains to Public Health.

EPA’s argument that the EF is invalid as it pertains to public health is a change of agency

position, espoused during litigation. This agency position is entitled to Chevron deference, since

it is a decision about how to interpret and apply a statute made by the agency tasked with

20

interpreting and applying that statute. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837, 863 (1984). The Chevron doctrine contemplates an agency policy change that is still

consistent with a permissible interpretation of the statute. Id. at 863–64 (“An initial agency

interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed

rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing

basis.”); see also Barnhart v. Walton, 535 U.S. 212, 226 (2002) (Scalia, J., concurring in part and

concurring in the judgment) (noting that Chevron accepted “that [statutes have] a range of

permissible interpretations, and that the agency is free to move from one to another”). In this case,

EPA moved from one permissible interpretation of CAA § 202(a) to another. 42

U.S.C. § 7521(a). The first interpretation, in the 2009 EF, was that public health included all

potential health effects, including those that are outgrowths of impacts on welfare. See 2009

Endangerment Finding, 74 Fed. Reg. 66,496, 66,496–546 (Dec. 15, 2009) (to be codified at 40

C.F.R. Ch. I). The second interpretation, and the one the EPA stands by today, is that effects on

“public health” need to be defined as effects on human health caused by the presence of a pollutant

in the ambient air.  

EPA’s new position is a permissible interpretation of the statute because it is consistent

with the way health has been defined in other areas of the CAA. See Lead Industries v. EPA, 647

F.2d 1156, 1157 (D.C. Cir. 1980); see also Nat. Res. Def. Council, Inc. v. U.S.E.P.A., 824 F.2d

1146 (D.C. Cir. 1987) (referring to air pollutants that are hazardous to the health of persons as

those which “may reasonably be anticipated to result, in an increase in mortality or an increase in

serious irreversible, or incapacitating reversible, illness”) (citing Clean Air Amendments of 1970,

Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685). While the statute regulating hazardous pollutants

sets a different standard for evaluating whether pollutants should be regulated under CAA § 112,

it is still dealing with actual impacts of pollutant concentrations in the ambient air on human

21

health. 42 U.S.C. § 7412. Thus, it should inform EPA’s interpretation of “public health” in CAA §

202(a). 42 U.S.C. § 7521(a).

However, if this Court determines that EPA’s litigation position is not entitled

to Chevron deference, the agency’s decision is at least entitled to Skidmore deference.  A change

of an agency finding brought up for the first-time during litigation is entitled

to Skidmore deference. Bradley George Hubbard, Deference to Agency Statutory Interpretations

First Advanced in Litigation? The Chevron Two-Step and the Skidmore Shuffle, 80 U. Chi. L. Rev.

447, 481 (2013). 

This Court, in reviewing EPA’s new finding that GHGs do not endanger public health,

should defer to the EPA’s position because the agency is tasked with enforcing the Clean Air Act,

and EPA brought that expertise to bear when it decided that COGA was correct in its pleading that

the EF is invalid as it pertains to public health. The appropriate level of deference accorded to an

agency’s interpretation of a statute under the Skidmore standard depends on the interpretation’s

“power to persuade,” which in turn depends on, “the thoroughness evident in its consideration, the

validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944).  

This Court should defer to EPA’s determination that the EF is contrary to law as it relates

to public health for two reasons. First, the EF was made in response to the holding in Mass. v. EPA,

which required a finding of endangerment to be made. Mass. v. EPA was about mobile source

regulations, not primary National Ambient Air Quality Standards (NAAQS). 549 U.S. 497, 535,

(2007). When EPA made the original EF, it did not contemplate the development of NAAQS under

CAA § 108. EPA needs to conduct more information-gathering about the impacts of GHGs on

public health before it can list GHGs as criteria pollutants that qualify for primary NAAQS based

on their public health impacts alone.  

22

Second, the 2009 EF improperly categorizes tangential effects of climate change as public

health impacts of GHG emissions, therefore as it pertains to public health, it is contrary to law and

should be set aside under Section 706(2) of the APA. 5 U.S.C. § 706(2). For example, the court

in Am. Elec. Power Co. v. Connecticut discussed the main effects of GHG emissions are:

increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other ‘extreme weather events’ that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially ‘significant disruptions’ of food production.

564 U.S. 410, 417 (2011) (citing 2009 Endangerment Finding, 74 Fed. Reg. 66,496, 66,496–546

(Dec. 15, 2009) (to be codified at 40 C.F.R. Ch. I)). While these effects of GHG emissions impact

health tangentially, they are all results of climate change, not results of exposure to GHGs in the

ambient air. There is insufficient evidence in the administrative record to indicate that inhaling

GHGs causes physical harm to the human body. 2009 Endangerment Finding, 74 Fed. Reg.

66,496, 66,496–546 (Dec. 15, 2009) (to be codified at 40 C.F.R. Ch. I). Until EPA is able to

analyze evidence of that, EPA, in its expert opinion, has not brought the full force of its reviewing

ability behind determining whether GHGs endanger public health to the extent that primary

NAAQS are required. 

The District Court was correct when it held that the public health impacts related to climate

change are already contemplated under the definition of welfare. R. at 10. Congress defined

dangers to public “welfare” in part as “effects on . . . climate.” 42 U.S.C. § 7602(h) (emphasis

added). The concerns noted in the EF are all results of climate change, which is already covered

by the definition of welfare. To avoid an interpretation of “public health” in sections 108 and 202

that leads to surplusage, public health needs to be defined differently from public welfare.  42

U.S.C. §§ 7408, 7521.

23

EPA has made findings of endangerment to public health before to justify promulgating

NAAQS.  In making those findings, EPA considered morbidity, such as impairment of lung

function, aggravation of respiratory and cardiovascular disease, and other acute and chronic health

effects, as well as mortality. See, e.g., Final National Ambient Air Quality Standard for Ozone, (73

Fed. Reg. 16,436, 16,436 (Dec. 15, 2007). These considerations all tie a determination of

endangerment to public health to the impacts of inhaling a pollutant on the human body. There is

a reason CAA §§ 108 and 202 use the disjunctive, “or” in “public health or welfare”. 42 U.S.C. §§

7408, 7521. Public health and public welfare are different and should be considered separately.

There was enough evidence on the record at the time of the 2009 finding for EPA to make a

determination of the impact of GHG emissions on public welfare. But in the current EPA

Administrator’s judgment, there was not enough evidence to determine that GHGs, when present

in the ambient air, endangers public health. For that reason, this Court should find that the 2009

finding of endangerment to public health was invalid.

IV. THE EPA HAS A DISCRETIONARY DUTY TO LIST GHGs AS A CRITERIA POLLUTANT UNDER CAA § 108(a)(1)(C).

Section 108(a)(1) of the CAA states the Administrator is required to publish a list of air

pollutants that includes information regarding:    

a) emissions of which, in his judgement, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;

b) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and  

c) for which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality criteria under this section.

42 U.S.C. § 7408 (a)(1). The issue on appeal is whether the EPA has a nondiscretionary duty to

list GHGs under CAA § 108 based on the EF. Id. This Court should conclude that a plain reading

of Section 108 of the CAA affords EPA discretion to determine whether to list GHGs as a criteria

24

pollutant. Even if this Court concludes that the statute’s language is ambiguous, EPA’s

interpretation of the statute should be afforded Chevron deference.  

A. A Plain Language Reading of “plan” Under CAA § 108(a)(3) Permits the EPA Discretion to List GHGs as a Criteria Pollutant.

In disputes involving interpretation of federal statutes, the Court first and foremost must

look to the statute’s language, giving words their ordinary meaning. Lawson v. FMR, LLC, 571

U.S. 429, 440 (2014). If a statutory term is undefined, a court may give the word its ordinary

meaning by referring to legal and general dictionaries. United States v. Poulson, 871 F.3d 261, 269

(3d Cir. 2017). When a statute’s terms are plain, the court’s interpretive task ends and must not

extend to sources beyond the plain text. Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1749

(2020).  

Section 108(a)(1) of the CAA delineates three separate requirements necessary to trigger

the mandatory to duty to list an air pollutant as a criteria pollutant. 42 U.S.C.§ 7408(a)(1). EPA

acknowledges that both the first and second requirements of Section 108 (a)(1) are

satisfied. Id. These requirements are satisfied because the 2009 EF represents the EPA’s

judgement that GHGs are “reasonably anticipated to endanger public welfare” and their presence

results from “numerous or diverse mobile and stationary sources.” 42 U.S.C.§ 7408 (a)(1)(a)-(b).

However, the third requirement in subparagraph (c) of Section 108 requires the EPA to “plan[s] to

issue air quality criteria under this section.” 42 U.S.C.§ 7408 (a)(1)(c) (emphasis added). The

statute as written by Congress mandates that this Court consider the third criteria by including the

conjunction “and” proceeding the second requirement in Section 108(a)(1)(b). The term “plan”

used in the third subparagraph is undefined by the statute, therefore it is reasonable to consider the

dictionary definition when interpreting the section. The verb, “plan”, is defined as “to have in

mind, intend.” Webster’s Third New International Dictionary (2002). Therefore, the common

25

usage of the word “plan” inherently includes EPA’s “intention,” which at its root is discretionary

in nature.  

A plain reading of the statute requires all three elements of Section 108 to be met in order

for a mandatory duty to list air pollutants to exist. A proper mandatory duty analysis should not

end with affirmative findings of endangerment of public health or welfare in conjunction with

findings that GHGs result from mobile and stationary sources. Subparagraph (c) requires the Court

to give credence to the Administrator’s discretion as to the proper avenue for regulating

GHGs. See 42 U.S.C. 42 U.S.C.§ 7408(a)(1)(c). Based on the plain language of Section 108, if

and only if, EPA determines the air pollutant will be regulated through Section 108 in conjunction

with the two additional previous section requirements will the section’s mandatory duty to list

GHGs arise.  

NRDC v. Train is the leading case addressing the existence of a non-discretionary duty to

list under CAA § 108(a). 545 F. 2d 320, 324 (2d Cir. 1976); 42 U.S.C.§ 7408(a). If the Court were

to follow the reasoning found in Train, such reasoning would do considerable violence to the text.

In Train, the Second Circuit held that the EPA was under a nondiscretionary duty to list lead as a

criteria pollutant under CAA § 108(a)(1) due to lead meeting the first two requirements of the

statute: lead has an adverse effect on public health and welfare, and its presence in the ambient air

results from diverse stationary and mobile sources. Train, at 324. The rationale for this ruling

rested on two main arguments. First, the court in Train held subparagraph (c) is not a separate third

criteria needed to invoke the section’s mandatory duty because the inclusion of the third criteria

would render the mandatory language of CAA § 108(a) surplusage. Id. at 325 (emphasis added).

Instead, the Administrator must only determine whether the pollutant is anticipated to endanger

public health or welfare and whether such pollutants result from numerous or diverse mobile and

stationary sources. Id. Second, the court reasons due to a conflict of a specific statutory provision

26

with the expressed statutory purpose, it is appropriate to look to the legislative history to resolve

the conflict. Id. The court held legislative history of the CAA and subparagraph (c) in context of

the statute as whole resolved the ambiguity in favor of not including the third criterion as a separate

requirement for mandatory listing. Instead, the EPA’s discretion pertains only to the decisions as

to the health effect of such pollutant and the review of state implementation plans under CAA §

110. Id.; 42 U.S.C. § 7410.  

By ruling to exclude the expressed third criterion, the Train court failed to give power to

the clearest indicator of legislative intent: the statutory text. See Nnebe v. Davis, 931 F.3d 66, 81

(2d. Cir. 2019) (acknowledging the clearest indicator of legislative intent is the statutory text). 

Section 108(a) does not separate the third criteria with an “or.” 42 U.S.C. § 7408(a)(1)(c).  The use

of “and” indicates that Congress intended for courts to read the entire statute, not to cut their

analysis off halfway through, as CHAWN would have this Court do. Statutory interpretation

should appropriately end with the unambiguous statutory language and not proceed further to the

legislative history as considered by the Train court. Interpreting the statute as written by Congress,

this Court should reasonably conclude that three distinct criteria must be met to invoke the

mandatory duty to list under CAA § 108(a), and that in this case, all three criteria are not met. 42

U.S.C. § 7408.

With this statutorily supported conclusion, the EPA will not be under a duty to list GHGs

a criteria pollutant because EPA never planned to use this statutory section to combat the adverse

effects caused by GHGs. Instead, upon issuance of the EF, EPA did not use CAA § 108(a) to

address this air quality issue but instead used to use other regulatory provisions enumerated within

the CAA that most directly targeted GHG polluters. EPA initially targeted GHG

emissions with limits for emissions from passenger vehicles and light trucks and later adopted

New Source Performance Standards and Best Available Control Technology guidance under Title

27

I of the CAA. See Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012).

The Agency also used Prevention of Significant Deterioration and Title V of the CAA to regulate

GHGs. But see Prevention of Significant Deterioration and Title V. Greenhouse Gas Tailoring

Rule, 75 Fed. Reg. 31,514, 31,550 (June 3, 2010); Standards of Performance for Greenhouse Gas

Generating Units, 80 Fed. Reg. 64,510, 64,510 (Oct. 23, 2015). In 2015, the EPA implemented the

Clean Power Plan, which targeted GHGs emitted by large powerplants through regulation under

CAA § 111(d). See Clean Power Plan, 80 Fed. Reg. 64,661, 64,664 (Oct. 23, 2015) (to be codified

at 40 C.F.R. pt. 60). EPA’s use of other CAA programs to regulate GHGs demonstrates the

Agency’s intention to use provisions of the CAA that directly target emitters of GHGs as opposed

to using national ambient air quality standards that are inappropriate for regulating GHGs. Also, it

possibly could take up to a decade to issue proper national air quality standards as opposed to two

years to issue standards under CAA § 111. Howard M. Crystal, et.al., Returning to Clean Air Act

Fundamentals: A Renewed Call to Regulate Greenhouse Gases Under the National Ambient Air

Quality Standards (NAAQS) Program, 31 GEO. ENVTL.’ L. REV. 233, 238 (2019); 42 U.S.C. §

7411.

EPA’s historical regulatory behavior towards GHG emissions reflects its plan and intention

to target emitting sources instead of resorting to the expansive, untargeted nature of national air

quality standards. Therefore, a mandatory duty to list GHGs under CAA § 108 is not applicable

because the EPA never planned to use CAA § 108 as the mechanism for regulating GHGs. 42

U.S.C. § 7408.

B. The District Court Improperly Followed the Train Decision as GHGs are Distinct from Traditional CAA Criteria Pollutants.

The District Court improperly followed the decision in Train because regulating GHGs

requires different considerations than regulating lead and other criteria pollutants. First, a

28

significant difference between GHGs and other air pollutants regulated under the CAA is that

GHGs, once emitted, “remain in the atmosphere for decades to centuries while traditional air

pollutants remain airborne for days to weeks.” 73 Fed. Reg. 44353, 44,481 (Aug. 18, 1998).

Because of this difference, it is important for the Court to note that GHGs “become well mixed

throughout the global atmosphere . . . therefore long-term distribution of GHG concentrations is

not dependent on local emissions sources.” Id. at 44,401 (emphasis added). Further, because GHGs

build up in the atmosphere over time and contribute to total atmospheric concentrations, unlike

traditional pollutants that can be reduced relatively quickly, GHG concentrations cannot be

reduced rapidly. Id. at 44,368. These GHG characteristics would create a significant challenge to

regulating GHGs through national ambient air quality standards. For nonattainment areas, state

implementation plans would be unachievable within the ten years maximum

timeframe. Id. Because of the long atmospheric life of GHGs, reductions in emissions would not

be measurable in the atmosphere for a significant period. In other words, “the entire U.S. would

remain in nonattainment for an unknown number of years.” Id. These findings render

CAA § 108’s NAAQS the incorrect CAA program to regulate GHGs.

C. Even if the Plain Language of CAA § 108 is Ambiguous, the EPA’s Interpretation Should be Afforded Chevron Deference.

The EPA’s position that it has statutorily granted discretion whether to regulate GHGs

through Section 108 should be afforded Chevron deference because the intent of Congress is clear

from the statutory language. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842–845 (1984); see also discussion supra Part II(B). This Court should defer to

the Agency’s interpretation of the plain language because it is grounded in fundamental principles

of statutory interpretation, giving first priority to the words written by Congress. In order to invoke

the mandatory duty to list a pollutant under Section 108, one must prove all three criteria of the

29

statute. See discussion supra Part IV(A). Even if this Court finds CAA §108 to be ambiguous,

EPA’s interpretation of the statute is a permissible construction based on plain language of the

statute, and considerable weight should be given to EPA’s position. Chevron, 467 U.S. at 845.

Even if this Court finds that EPA’s interpretation is not entitled to Chevron deference, the

interpretation at minimum should be afforded Skidmore deference. See Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944). Skidmore deference requires this Court to respect the Agency’s

interpretation of the statute because it represents a body of experience and informed

judgement. Id. Given EPA’s sixty-plus year history of administering the CAA and its expertise in

implementing regulatory measures for various air pollutants, this Court should defer to EPA’s

interpretation of the statute.

D. The Lack of Statutory Deadline Under CAA § 108(a) Evidences a Discretionary Duty.

An essential element in determining if a nondiscretionary duty exists is the presence of a

‘readily ascertainable” deadline for agency action. See WildEarth Guardians v. Jackson,

885 F.Supp. 2d 1112, 1116 (D.N.M 2012). If a deadline to act can only be inferred from the overall

statutory framework, the duty to act is likely discretionary. Sierra Club v. Thomas, 828 F.2d 783,

791 (D.C. Cir. 1987). Lack of a date-certain deadline both explicitly and by inference evidences

that the EPA was not subject to a nondiscretionary duty to act and therefore prevents suit under

section 304(a)(2) of the CAA. WildEarth Guardians at 1118.   

Section 108(a) on its face does not expressly prescribe a date-certain deadline. The statute

expressly states, “the Administrator shall within 30 days after December 31, 1970, publish, and

shall from time to time thereafter revise.” 42 U.S.C. § 7408(a) (emphasis added). The language

“from time to time” does not explicitly state a deadline by which the agency must act, nor does it

allow a reasonable interpreter to infer a deadline by which such action must be completed. Id. The

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language instead allows for the inference that if all three criteria of the Section are met, the

mandatory duty to act must instead occur within the Administrator’s reasonable discretion.

Further, date-certain deadlines exist elsewhere in the CAA. See 42 U.S.C. §§ 7408(a)(2),

7545(h)(5)(B), 7661d(c). By CAA § 108(a) lacking such an explicit deadline, the statute affords

the EPA discretion. The lack of a specific date-certain deadline should allow this Court to

comfortably conclude that CAA § 108(a) does not convey a nondiscretionary duty to act. See 42

U.S.C. § 7408(a).

V. THE EPA’S DECISION TO NOT LIST GHGs UNDER CAA § 108 IS NOT UNREASONABLY DELAYED.

The District Court erred in its determination that the EPA’s decision not to list GHGs as a

criteria pollutant within ten years constituted unreasonable delay. The EPA’s decision not to list

GHGs was reasonable for two primary reasons. First, the CAA affords the EPA discretion over

when to list air pollutants after December 31, 1970. 42 U.S.C. §7408(a). Further, the district

court’s judicial review of the EPA’s action is not eligible for judicial review under Section 701 of

the APA. 5 U.S.C. § 701(a)(2). Second, the District Court did not adjudicate this matter under

the correct standard of review, rather the court’s analysis consisted of using factors

from Telecomm. Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984), as

opposed to reviewing the EPA’s action under the APA’s relevant sections. These reasons will be

addressed respectively.

A. The EPA Has Discretion Whether to Act

i. Because the EPA possesses discretion the decision, to not act is reasonable.

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The EPA’s decision to not formally list GHGs as a criteria pollutant is not unreasonable

because EPA has the discretion whether to act under CAA § 108(a).1 42 U.S.C. § 7408(a). A

court’s “scope of [ ] review of the merits of the statutory issues is narrow . . .  as [The Supreme

Court has] repeated time and time again, an agency has broad discretion to choose how best to

marshal its limited resources and personnel to carry out its delegated

responsibilities.”  Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (referencing Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–845 (1984)).  An agency’s

discretion “is at its height when the agency decides not to bring [ ] action.”  Massachusetts, 549

U.S. at 527; see also Heckler v. Chaney, 470 U.S. 821, 838 (1985) (holding that there is a general

presumption against review of an agency’s inaction)). 

As applied, the CAA affords EPA the discretion to act because of the statute’s plain

language, deference, and the lack of a date-certain deadline. Thus, the EPA’s deliberate decision

to not list GHGs as a criteria pollutant does not constitute an unreasonable delay under § 7408(a)

because the EPA has the absolute discretion to act “in [its] judgment.”  42 U.S.C. § 7408(a). 

ii. If the EPA lists GHGs as a criteria pollutant, the EPA would quickly become noncompliant with the CAA.

Even if the EPA decides to list GHG’s as an air pollutant, the EPA does not have sufficient

scientific knowledge to conclusively develop effective air quality criteria within twelve months of

GHG’s listing. If the EPA prematurely lists GHGs and develops air quality criteria without more

full and accurate knowledge regarding GHG’s effects on public health, such action would cause

the EPA to be in violation of the CAA. The statutory deadline provided in § 7408(a)(2) requires

that the “air quality criteria for a pollutant shall accurately reflect the latest scientific knowledge

1 See discussion infra. IV (arguing that EPA does not have a non-discretionary duty to act. As such, since

EPA possesses a discretionary duty to act, then EPA’s decision to not list GHGs as criteria pollutants after ten years because of continuing scientific and research efforts does not constitute an unreasonable delay under 42 U.S.C. § 7408(a)).

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useful in indicating the kind and extent of all identifiable effects on public health or welfare.” 42

U.S.C. § 7408(a)(2) (emphasis added). Congress’ deliberate use of the word “shall” conveys a

duty upon the EPA to be fully informed of all identifiable effects that result from GHGs in the

ambient air. Id. Presently, the EPA does not possess enough scientific knowledge of GHG’s

effects, positive or adverse, on public health or welfare; however, since 1990, the EPA has been

committed to the scientific research of GHGs and its effects on public health and

welfare. See ENVIRONMENTAL PROTECTION AGENCY: INVENTORY OF U.S. GREENHOUSE GAS

EMISSIONS AND SINKS: 1990-2018. Additionally, for over thirty years, the EPA has been working

to develop standardized air quality model evaluation methods that will aid in determination of

GHGs effects. 40 C.F.R. § Pt. 51, App. W. (2017). These models are to include “quality assurance

planning, documentation and scrutiny [that] should be consistent with the intended use” and

require: “scientific peer review; supportive analyses; diagnostic and performance evaluations with

data obtained in trial location; and statistical performance evaluations in the circumstances of the

intended applications.” Id. Accordingly, for the EPA to remain compliant with the CAA, more

and accurate scientific knowledge is required before addressing the complexity of regulating

GHGs and its effects. Thus, at this time, the EPA’s decision to continue researching GHGs and

its effects on public health and welfare is reasonable and compliant with the CAA.

B. The District Court Improperly Applied the Standard of Review

The District Court applied the incorrect standard of review when reviewing the EPA’s

action to not list GHGs as air criteria pollutants and continue to research GHGs effects on public

health. The correct standard of review which reviews an agency’s action is delineated by the

APA.

The APA is the governing source of law that details the process by which federal agencies

develop and issue regulations to their area of expertise. 5 U.S.C. § 551 et seq. (1966). The APA

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“sets forth the procedures by which federal agencies are accountable to the public and their actions

subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Further,

the APA requires agencies to engage in “reasoned decision making,” Michigan v. EPA, 576 U.S.

743, 750 (2015) (internal quotation marks omitted), and requires that an agency’s action be “set

aside” if the action is found to be “arbitrary” or “capricious,” 5 U.S.C. § 706(2)(A). This standard

of review for courts is a “narrow one” and that when a court reviews an agency’s action it must

“examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle

Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43

(1983). Under this “narrow standard of review, . . . a court is not to substitute its judgment for that

of the agency,” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (internal

quotation marks omitted), rather the court must only determine whether the decision was based on

the relevant factors and if a clear error of judgment was present, Dept. of Homeland Security v.

Regents of the University of California, 140 S.Ct. 1891, 1905 (2020).

Here, the District Court’s implementation of the TRAC factors in place of the APA’s

standard of judicial review is incorrect as a matter of law. The guiding standard for judicial review

of agency action is under § 706, with exceptions to judicial review at § 701 of the APA. 5 U.S.C.

§§ 701, 706.

i. Judicial Review of this matter is precluded under APA § 701(a)(2).

The District Court was unable to adjudicate this matter pursuant to APA § 701(a)(2) of the

APA. Section 701(a)(2), which creates an exception for judicial review for “agency action [that]

is committed to agency discretion by law.” The APA precludes judicial review in this matter

because the CAA affords the EPA absolute discretion to formulate the list of air quality criteria

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pollutants.  5 U.S.C. § 701(a)(2); 42 U.S.C. § 7408(a). For this reason, the District Court’s review

of this matter is precluded. 5 U.S.C.  § 701(a)(2). 

The APA serves as the “basic presumption of judicial review,” Abbott Laboratories v.

Gardner, 387 U.S. 136, 140 (1967), and requires courts to set aside agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A)

(1966); see Dept. of Commerce v. New York, 139 S.Ct. 2551, 2567 (2019).  Congress has explicitly

made judicial review of an agency’s action under the APA inapplicable in two circumstances. First,

judicial review is not available “to the extent that” a relevant statute precludes it, 5 U.S.C. §

701(a)(1), or if the agency’s action is “committed to agency discretion by law,” 5 U.S.C.  §

701(a)(2). The Supreme Court has held that “[t]he primary purpose of the APA limitations . . . is

to protect agencies from undue judicial interference with their lawful discretion, and to avoid

judicial entanglement in abstract policy disagreements which courts lack both expertise and

information to resolve.”  Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004).

When it has encountered statutes that lack date-certain deadlines, the Supreme Court

has relied on the persuasive reasoning within the Attorney General’s Manual on the APA.  See

e.g., Norton, 542 U.S. 55, 63 (2004); Darby v. Cisneros, 509 U.S. 137, 148 (1993); Chrysler Corp.

v. Brown, 441 U.S. 281, 302 (1979); Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 546 (1978); 5 U.S.C. § 706. The Attorney General’s Manual

on the APA empowers a reviewing court only to compel an agency “to perform a ministerial or

non-discretionary act,” or “to take action upon a matter, without directing how it shall

act.” Attorney General's Manual on the Administrative Procedure Act 108 (1947); see also L.

Jaffe, Judicial Control of Administrative Action 372 (1965); K. Davis, Administrative Law § 257,

p. 925 (1951). 

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EPA’s decision to not list GHGs as a criteria pollutant is within its discretion under CAA

§ 108. 42 U.S.C. § 7408. Section 701(a)(2) of the APA precludes judicial review of agency action

if the action is “committed to agency discretion by law,” therefore, the APA precludes judicial

review of this agency action. 5 U.S.C.  § 701(a)(2).

ii. Even if EPA has a nondiscretionary duty under the CAA, the EPA’s decision not to act is not “arbitrary, capricious, or otherwise not in accordance with law” under APA § 706.

EPA’s decision not to list GHGs as a criteria pollutant satisfies § 706 of the APA. Section

706 of the APA details the scope of review with which a court reviewing an agency action may

adjudicate questions of law and interpret constitutional and statutory provisions.  Id. The statute

provides in relevant part that the reviewing court shall: 

(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

5 U.S.C. §§ 706(1), (2)(A). Under Section 706 of the APA, a court may compel agency action only

when agency inaction is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A);  see also Dept. of Commerce v. New York, 139 S.Ct.

2551, 2567 (2019). As such, “a claim under § 706(1) can only proceed where a plaintiff asserts

than an agency failed to take a discrete agency action that it is required to take.” Norton, 542 U.S.

at 64; see also Accrediting Council for Independent Colleges and Schools v. Devos, 303 F.Supp.3d

77, 94 (D.C. Cir. 2018). “The agency must examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection between the facts found and the choice

made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983) (internal quotation marks omitted); see also Burlington Truck Lines v. United States, 371

U.S. 156, 168 (1962). “[C]ourts ‘will uphold a decision of less than ideal clarity if the agency’s

36

path may reasonably be discerned.’”  Pub. Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186, 197

(D.C. Cir. 1993) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,

286 (1974). 

EPA’s decision to not list GHGs as a criteria pollutant under CAA § 108(a) is rationally

related to the construction of CAA § 108 and EPA’s need to develop a sufficient record on the

impact of GHG emissions on public health before regulating GHG emissions with potentially

draconian limits.  42 U.S.C. § 7408(a). The EPA has stated and continues to state that the primary

reason for the time taken on this matter is for scientific research into the effects of GHGs on public

health.  See Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990) (holding that

agencies can “offer a fuller explanation of the agency’s reasoning at the time of the agency

action.”); see also Lincoln v. Vigil, 508 U.S. 182, 184 (1993) (citing Heckler v. Chaney, 4790 U.S.

821, 831 (1985) (reasoning that an agency’s “decision not to [act] often involves a complicated

balancing of a number of factors which are peculiarly within its expertise”)). EPA’s decision to

not list GHGs as an air pollutant and issue air quality criteria is based on a need for more substantial

evidence.

Furthermore, EPA’s decision to not list GHGs satisfies § 706 of the APA.  5 U.S.C. § 706. 

This is due to the fact that the EPA’s discretionary decision to obtain accurate scientific knowledge

is rationally related to its purpose of formulating air quality criteria under CAA § 108.  42 U.S.C.

§ 7608. Moreover, the EPA is not acting in an arbitrary and capricious manner in taking the

requisite time to make an appropriate determination of the impacts of GHGs on public health.

Rather, the time currently being taken is to ensure that the EPA is fully informed on the effects of

GHGs and the potential impacts of regulation under Section 108. Additionally, the EPA’s decision

is not an abuse of discretion that is attempting to inhibit, discriminate, or harm any person, persons,

or group of individuals based on any characteristic. In fact, given the magnitude of the implications

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of listing GHGs as an air pollutant, not having full or inaccurate information upon the issuance of

such resulting regulations could severely harm persons, industries, and more. Thus, the EPA’s

decision to not list GHGs as an air pollutant is based on the pragmatic need for full and accurate

scientific knowledge that accurately and definitively reflects the lasting effects of GHGs on public

health. 

CONCLUSION This Court should hold that the District Court did not have jurisdiction over CHAWN’s

unreasonable delay claim because that claim should have been heard in the D.C. Circuit.

Additionally, the 2009 EF is valid with respect to endangerment of public welfare but not public

health based on EPA’s permissible interpretation and construction of CAA § 202(a). EPA does not

have a nondiscretionary duty to designate GHGs as a criteria pollutant under CAA § 108 because

sub-paragraph (c) gives EPA ample discretion whether to list GHGs under the statute. Due to this

discretion, EPA’s decision to not list GHGs as criteria pollutants under is not unreasonably delayed

under the APA or the CAA. Therefore, this Court should uphold the District Court’s decision to

grant partial summary judgment in favor of COGA and overturn the grant of partial summary

judgment to CHAWN.