United States Court of Appeals
      FOR THE DISTRICT OF COLUMBIA CIRCUIT



              Filed: December 20, 2012

                    No. 09-1322

COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
                  PETITIONERS

                         v.

       ENVIRONMENTAL PROTECTION AGENCY,
                 RESPONDENT

             STATE OF MICHIGAN, ET AL.,
                   INTERVENORS


Consolidated with 10-1024, 10-1025, 10-1026, 10-1030,
10-1035, 10-1036, 10-1037, 10-1038, 10-1039, 10-1040,
10-1041, 10-1042, 10-1044, 10-1045, 10-1046, 10-1234,
10-1235, 10-1239, 10-1245, 10-1281, 10-1310, 10-1318,
             10-1319, 10-1320, 10-1321


                    No. 10-1073

COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
                  PETITIONERS

                         v.

       ENVIRONMENTAL PROTECTION AGENCY,
                 RESPONDENT
                         2

     AMERICAN FROZEN FOOD INSTITUTE, ET AL.,
                 INTERVENORS



Consolidated with 10-1083, 10-1099, 10-1109, 10-1110,
10-1114, 10-1118, 10-1119, 10-1120, 10-1122, 10-1123,
10-1124, 10-1125, 10-1126, 10-1127, 10-1128, 10-1129,
10-1131, 10-1132, 10-1145, 10-1147, 10-1148, 10-1199,
10-1200, 10-1201, 10-1202, 10-1203, 10-1206, 10-1207,
10-1208, 10-1210, 10-1211, 10-1212, 10-1213, 10-1216,
    10-1218, 10-1219, 10-1220, 10-1221, 10-1222




                    No. 10-1092

COALITION FOR RESPONSIBLE REGULATION, INC., ET AL.,
                  PETITIONERS

                         v.

       ENVIRONMENTAL PROTECTION AGENCY,
                 RESPONDENT

          LANGBOARD, INC. - MDF, ET AL.,
                 INTERVENORS


Consolidated with 10-1094, 10-1134, 10-1143, 10-1144,
10-1152, 10-1156, 10-1158, 10-1159, 10-1160, 10-1161,
    10-1162, 10-1163, 10-1164, 10-1166, 10-1182
                           3

                      No. 10-1167

            AMERICAN CHEMISTRY COUNCIL,
                    PETITIONER

                           v.

  ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
    JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL
               PROTECTION AGENCY,
                   RESPONDENTS

   CHAMBER OF COMMERCE OF THE UNITED STATES OF
                AMERICA, ET AL.,
                 INTERVENORS



  Consolidated with 10-1168, 10-1169, 10-1170, 10-1173,
  10-1174, 10-1175, 10-1176, 10-1177, 10-1178, 10-1179,
                         10-1180



           On Petitions for Rehearing En Banc

                         ______




 Before: SENTELLE*, Chief Judge, and HENDERSON,
ROGERS*, TATEL*, GARLAND, BROWN*, GRIFFITH, and
KAVANAUGH*, Circuit Judges.
                                 4

                           ORDER

       The petition of the Chamber of Commerce of the United
States of America, joined by the State of Alaska, Peabody
Energy Company, Southeastern Legal Foundation, et al., State
Petitioners and Intervenors for Petitioners, for rehearing en
banc; and the petition of the National Association of
Manufacturers, et al. for rehearing en banc in No. 10-1073, et al.
and No. 10-1167, et al., and the responses to the petitions were
circulated to the full court, and a vote was requested.
Thereafter, a majority of the judges eligible to participate did not
vote in favor of the petitions. Upon consideration of the
foregoing, it is

    ORDERED that the petitions be denied.

                                        FOR THE COURT:
                                        Mark J. Langer, Clerk

                                  BY:      /s/
                                        Jennifer M. Clark
                                        Deputy Clerk

*Circuit Judges Brown and Kavanaugh would grant the petitions
for rehearing en banc.

 * A statement by Chief Judge Sentelle and Circuit Judges
Rogers and Tatel, concurring in the denials of rehearing en banc,
is attached.

* A statement by Circuit Judge Brown, dissenting from the
denials of rehearing en banc, is attached.

*A statement by Circuit Judge Kavanaugh, dissenting from the
denials of rehearing en banc, is attached.
     SENTELLE, Chief Judge, ROGERS, Circuit Judge, and
TATEL, Circuit Judge, concurring in the denials of rehearing
en banc: In dissenting from the denials of rehearing en banc,
Judge Brown primarily takes issue with EPA’s Endangerment
Finding. But as she candidly acknowledges, see Dissenting
Op. at 2 (Brown, J.), her quarrel is with the Supreme Court. In
Massachusetts v. EPA, 549 U.S. 497 (2007), the Court
expressly held that the Clean Air Act’s “sweeping definition
of ‘air pollutant’ ” unambiguously includes greenhouse gases.
See id. at 528–29. Moreover, in so holding, the Court
expressly rejected many of the arguments her dissent now
presses. In particular, it rebuffed EPA’s attempt to use
“postenactment congressional actions and deliberations” to
obscure “the meaning of an otherwise-unambiguous statute,”
id. at 529, and found EPA’s reliance on FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000), “similarly
misplaced,” Massachusetts v. EPA, 549 U.S. at 530. Seeking
to revive the Brown & Williamson argument, Judge Brown
suggests that the Court never considered the “far-reaching
effects” of extending greenhouse gas regulation to stationary
sources. See Dissenting Op. at 18 (Brown, J.). But this is
inaccurate—the briefs before the Court explicitly raised the
argument that interpreting “air pollutant” to include
greenhouse gases could have tremendous consequences for
stationary-source regulation. See, e.g., Brief of Respondent
CO2 Litigation Group, Massachusetts v. EPA, 549 U.S. 497
(2007) (No. 05-1120), 2006 WL 3043971 at *19–*31.

     To the extent Judge Brown attempts to bypass
Massachusetts v. EPA by focusing on the statutory condition
that air pollution “reasonably be anticipated to endanger
public health or welfare,” 42 U.S.C. § 7521(a)(1) (emphasis
added), her quarrel is not just with the Supreme Court, but
also with EPA’s assessment of the science. Of course, we
agree that the statute requires EPA to find a particular causal
nexus between the pollutant and the harm in order to regulate.
See Dissenting Op. at 9 (Brown, J.). But that is exactly what
                              2
EPA did: it found that “greenhouse gases in the atmosphere
may reasonably be anticipated both to endanger public health
and to endanger public welfare.” Endangerment and Cause or
Contribute Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,497
(Dec. 15, 2009). And, as the panel opinion explains, EPA’s
scientific judgment about the causal relationship between
greenhouse gases and climate change is a scientific
determination entitled to “an extreme degree of deference.”
Coalition for Responsible Regulation v. EPA, 684 F.3d 102,
120 (D.C. Cir. 2012) (quoting American Farm Bureau
Federation v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009)). The
dissent's suggestion that EPA was somehow statutorily
precluded from finding the requisite nexus between
greenhouse gases and harm to public health and welfare, see
Dissenting Op. at 10–11 (Brown, J.), is belied by the Supreme
Court's decision to remand precisely this question. See
Massachusetts v. EPA, 549 U.S. at 532–35.

     Judge Kavanaugh’s dissent relates to the scope of the
Prevention of Significant Deterioration (“PSD”) program, an
aspect of the panel opinion Judge Brown also rejects.
Specifically, Judge Kavanaugh disagrees with EPA’s
longstanding interpretation of the term “any air pollutant,” 42
U.S.C. § 7479(1), arguing that, in the context of the PSD
program, “any air pollutant” refers not to all pollutants
regulated under the Clean Air Act, but only to the six NAAQS
pollutants. Because taking the statute at its word and
interpreting “any air pollutant” to include greenhouse gases
would lead to what he considers absurd results, Judge
Kavanaugh insists that EPA and this Court are obligated to
read “any air pollutant” more narrowly. See Dissenting Op. at
3–10 (Kavanaugh, J.). This argument, however, hinges on the
proposition that both readings are plausible interpretations of
an ambiguous statutory provision. See Dissenting Op. at 2–3,
                               3
10 (Kavanaugh, J.). But as the panel opinion explains at
length, the statute is clear. See Coalition for Responsible
Regulation, 684 F.3d at 132–44. Congress did not say “certain
‘air pollutants.’ ” Dissenting Op. at 2 (Kavanaugh, J.). It said
“any air pollutant,” and it meant it. See Coalition for
Responsible Regulation, 684 F.3d at 136. Thus, unlike the
unreasonable interpretation rejected in Kloeckner v. Solis, No.
11-184, slip op. at 7–13 (U.S. 2012), the panel’s interpretation
of the statute is the only plausible one.

     Moreover—and again, as the panel opinion explains at
length, see Coalition for Responsible Regulation, 684 F.3d at
135–36—considering “any air pollutant” in context buttresses
rather than undermines the panel’s interpretation. The statute
frames the purpose of the PSD program in broad—not
NAAQS-specific—terms, emphasizing that the program’s
goal is “to protect public health and welfare from any actual
or potential adverse effect which . . . may reasonably be
anticipate[d] to occur from air pollution.” 42 U.S.C.
§ 7470(1). And although certain aspects of the program are
specifically directed at NAAQS pollutants, see, e.g., id.
§ 7473(b)(4), the program as a whole plainly has a more
expansive scope. For instance, covered sources are required to
(1) install the best available control technology for “each
pollutant subject to regulation under [the Act],” id.
§ 7475(a)(4) (emphasis added), and (2) demonstrate that they
will not cause or contribute to “any . . . applicable emission
standard” under the Act, id. § 7475(a)(3) (emphasis added).

     In the end, we agree that “the question here is: Who
Decides?” Dissenting Op. at 18 (Kavanaugh, J.). We also
agree that “Congress (with the President) sets the policy
through statutes, agencies implement that policy within
statutory limits, and courts in justiciable cases ensure that
agencies stay within the statutory limits set by Congress.”
                                4
Dissenting Op. at 18 (Kavanaugh, J.). Here, Congress spoke
clearly, EPA fulfilled its statutory responsibilities, and the
panel, playing its limited role, gave effect to the statute’s plain
meaning. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837,
842–43 (1984) (“If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress.”).

     To be sure, the stakes here are high. The underlying
policy questions and the outcome of this case are undoubtedly
matters of exceptional importance. The legal issues presented,
however, are straightforward, requiring no more than the
application of clear statutes and binding Supreme Court
precedent. There is no cause for en banc review.
     BROWN, Circuit Judge, dissenting from the denial of
rehearing en banc: In the summer of 1974, while waiting to
start classes at UCLA, I was lucky enough to obtain a summer
job house sitting in the pleasant, upscale neighborhood of
Pasadena. Known mostly for its Rose Parade and Rose Bowl,
Pasadena is one of the more scenic exurbs of Los Angeles. I
inhabited a sparsely furnished, modest-but-pricey bungalow
set among the lush landscape typical of southern California.
This is a place where Birds of Paradise grow ten feet tall and
the magenta blossoms of Bougainvillea fall like lavish
draperies from redwood garden trellises. After staying in the
house more than a month and spending a restless night
listening to the agitated thrashings of the jacaranda trees in a
fitful wind, I stumbled bleary-eyed into the kitchen, looked
out the window, and stopped — utterly dumbfounded. There
— looking like it was but a few feet beyond the back fence —
stood a mountain. Not a foothill. Not an unobtrusive mesa.
A mountain! Closer inspection revealed not a lone majestic
peak, but a whole mountain range I later identified as the San
Gabriels. In those days, the air in the Los Angeles basin was
so thick with smog that a mountain, or even a nearby
mountain range, could simply disappear.

    Although the Los Angeles basin was among the most
notorious examples of the phenomenon, it was by no means
unique and certainly not the worst. It was this crisis of
ambient air quality that precipitated the enactment of the
Clean Air Act (CAA). But as the CAA’s history, language,
and structure make clear, Congress never intended the Act to
serve as an environmental cure-all. It was targeted legislation
designed to remedy a particular wrong: the harmful direct
effects of poisoned air on human beings and their local
environs. This is what Congress understood as “air pollution
which may reasonably be anticipated to endanger public
health” in the tailpipe emissions provision, 42 U.S.C. §
7521(a)(1). The Supreme Court in Massachusetts v. EPA,
549 U.S. 497 (2007), however, concluded otherwise. In dicta
                              2
too suggestive to ignore, the Court implicitly assumed that
climate change could provide the basis for an endangerment
finding in the tailpipe context. See id. at 532–33.

    Bound as I am by Massachusetts, I reluctantly concur with
the Panel’s determination that EPA may regulate GHGs in
tailpipe emissions. But I do not choose to go quietly.
Because the most significant regulations of recent memory
rest on the shakiest of foundations, Part I of this statement
engages Massachusetts’s interpretive shortcomings in the
hope that either Court or Congress will restore order to the
CAA.       Part II, by contrast, reflects my belief that
Massachusetts does not compel the same result for Title V
and the Prevention of Significant Deterioration of Air Quality
(PSD) program. Although I agree with Judge Kavanaugh’s
dissent, Coal. for Responsible Regulation v. EPA, Nos. 09-
1322, et al. (Kavanaugh, J., dissenting from denial of
rehearing en banc), I approach the inflection point from a
slightly different perspective. Part III concludes with a brief
note on standing.

    Because I would vote for the full court to consider the
propriety of extending Massachusetts to Title V and the PSD
program, I respectfully dissent from this denial of rehearing
en banc.

                              I.

                              A.

    The origins of the Clean Air Act are closely tied to fatal
fogs and deadly air inversions that, for much of early post-
industrial history, seemed to be the inevitable consequence of
economic progress. See Arnold W. Reitze, Jr., A Century of
Air Pollution Control Law: What’s Worked; What’s Failed;
                                3
What Might Work, 21 ENVTL. L. 1549, 1575 (1991).1 Initially
regulated at the local and state level, air pollution became the
focus of the federal government only after World War II. See
id. at 1585–86. In October 1948, a severe temperature
inversion in the industrial city of Donora, Pennsylvania
increased air pollution to such an extent that traffic “ ‘was
virtually stopped because of lack of visibility.’ ” The
inversion killed 20 people, id., and prompted the federal
government to begin researching air pollution. Id. at 1586.
By 1961, President Kennedy included a plea for “an effective
air pollution program” in his Special Message on the Natural
Resources. Id. Public pressures for legislation only increased
when a “Killer Smog” engulfed London in December 1962,
killing at least 340, and a similar inversion in New York City
allegedly claimed the lives of 200. Id. Eventually, legislation
recommended by President Kennedy in February 1963 led to
the enactment of the CAA, which President Johnson signed
into law on December 17, 1963. Id. at 1586–87. Seven years
later, President Nixon signed The Clean Air Amendments of
1970. The 1970 Amendments authorized the EPA to prescribe
national ambient air quality standards (NAAQS) and created
the statutory framework that still exists today.

                               B.

     It was no happy accident that congressional draftsmen
titled the legislation the “Clean Air Act.” Ambient air quality
was the point, purpose, and focus of the CAA. Congress had
set its sights on the “dirty, visible ‘smokestack’ emissions,”
136 CONG. REC. H2771-03 (1990) (statement of Rep. Roe),

    1
       Inversions, sometimes known as “Londoners,” occur “when a
layer of hot air warmed by . . . water exists above cooler ground-
level air and traps smoke and particulate matter under the warmer
air.” Id.
                              4
and smog caused by vehicle emissions. The CAA was the
means by which Congress would grapple with urban air
pollution and its attendant health effects, including impaired
breathing, heart disease, lung damage and lung disease, and
even death. If pollution was the problem, these ills were the
specific harms Congress sought to combat. Even a cursory
glance at the legislative history, with its numerous charts,
graphics, and statistics detailing cancer and death rates, will
bear this point out. See, e.g., Hearings on Air Pollution —
1968 Before the Subcomm. on Air and Water Pollution of the
Sen. Comm. on Pub. Works, 90th Cong. 2nd Sess., pt. 2, 608–
20 (1968) (statement of Dr. Samuel S. Epstein, Children’s
Cancer Research Foundation.) (“Air Pollution — 1968”).

    With the enactment of the 1990 Amendments, Congress
expanded the Act beyond its singular emphasis on urban air
quality to address hazardous — i.e., toxic — air pollutants,
acid rain, and stratospheric ozone. In regulating hazardous
pollutants, Congress reemphasized the need for a close and
tangible nexus between pollutant and harm. The legislative
record, for example, continued to conceive of dangers in
terms of their direct effects on human health and well-being.
See, e.g., S. Rep. No. 101-228, at 3388 (1989), reprinted in
1990 U.S.C.C.A.N. 3385 (“Air pollution can silently damage
our lungs and heart or act swiftly in the case of exposure to
toxic air pollutants.      Rigorous regulation of toxic air
pollutants is needed to avoid risk of serious, irreversible
damage to human health.”). To the extent the regulation of
stratospheric ozone and acid rain suggest a broader nexus
between pollutant and harm to human health, the very
particular way in which Congress handled these exceptions
goes a long way toward proving the rule: Congress only
expands the CAA through considered legislative acts.
                              5
    In addressing these transnational phenomena, the
legislature did not spin regulations out of whole cloth. With
ozone concerns, for example, Congress developed solutions
through international negotiations, the implementation of
which led to the creation of a separate title of the CAA. See
NRDC v. EPA, 464 F.3d 1, 3 (D.C. Cir. 2006). Likewise,
years of contentious discussions with Canada helped bring
about the acid rain provisions in the 1990 Amendments. See
generally Dennis A. Leaf, Intergovernmental Cooperation:
Air Pollution from an U.S. Perspective, 18 CAN.-U.S. L.J. 245
(1992). Simply put, when Congress became aware of new
dangers, it acted judiciously in crafting workable remedies
that, when they obtained the necessary political support, were
worked into their own discrete provisions under the Act.
Neither Congress nor the EPA attempted to force these
distinct problems into existing, ill-suited regulatory schemes.

      Congressman Waxman, one of the strongest proponents
of stringent air pollution controls and a key force behind the
1990 Amendments, has stated that “in recent experience, no
legislation has received more scrutiny during its
consideration.” The Honorable Henry A. Waxman, An
Overview of the Clean Air Act Amendments of 1990, 21
ENVTL. L. 1721, 1724 (1991). Hyperbole or not, the
admission is telling. The history of the CAA is one of hard-
fought incremental gains through which Congress remedied
particular environmental wrongs with tailored remedies.
Said the Congressman:

    Discrete and extensive new programs are included to
    grapple with high ambient pollution levels (urban and
    regional smog), hazardous air pollution, acid rain, and
    depletion of the stratospheric ozone layer. Each of these
    programs [was] tailored to the problem it [sought] to
    address, and each [was] quite different in its approach.”
                             6

Id. at 1811. Political necessity has forced Congress to
calibrate its amendments to the CAA with great specificity
and care. Where our Representatives have acted with such
caution, any suggestion that Congress has — through a single
word — conferred upon EPA the authority to steamroll
through Congressional gridlock, upend the Senate’s rejection
of the Kyoto Protocol, and regulate GHGs for the whole of
American industry must necessarily fail. The legislature,
recall, does not “hide elephants in mouseholes.” Whitman v.
Am. Trucking Assocs., 531 U.S. 457, 468 (2001).

    But we needn’t rely on interpretative canons alone to
make this point. In drafting the 1990 Amendments, Congress
considered — and expressly rejected — proposals authorizing
EPA to regulate GHGs under the CAA. See S. Rep. No. 101-
228, at 377 (1989), as reprinted in 1990 U.S.C.C.A.N. 3385,
3760. Even the Executive objected that an attempt to control
Carbon Dioxide (CO2) emissions — emissions not harmful to
health — in order to prevent global warming was premature.
See Administration’s Amendments — Hearings Before the
Subcomm. On Health and the Env’t of the Comm. on Energy
and Commerce, 101st Cong., 1st Sess. (1989) (includes Bush
Administration Report on S. 1630). The Executive’s critique
noted that “unilateral action aimed at addressing a global
problem” through a standard limiting tailpipe emissions
would not be an effective means of safeguarding the global
environment and would “necessarily punish national
interests.” Id. at 792, 813.

   That Congress has never deviated from its decision to not
regulate GHGs under the CAA was not for lack of
opportunity. Congress has considered and rejected countless
other bills in the years since the 1990 Amendments that would
have authorized GHG regulation.            By one estimate,
                               7
Congressmen have proposed over 400 bills concerning GHGs
between 1990 and 2009.          See Abigail R. Moncrieff,
Reincarnating the “Major Questions” Exception to Chevron
Deference As A Doctrine of Noninterference (or Why
Massachusetts v. EPA Got It Wrong), 60 ADMIN. L. REV. 593,
636–37 (2008) (tracking proposals). Congress’s inability to
break this nearly quarter-century long deadlock is incredibly
suggestive: this is not an area of policymaking where the
legislature has acted rashly or unthinkingly in delegating
authority to agencies.

      At bottom, Congress understood the dangers of “any air
pollutant” in § 7521(a)(1) in terms of the ill-effects caused
those who inhale the pollutants, not the broad, attenuated
consequences of climate change. The CAA was drafted not to
combat the threat of flooding or the menace of heat waves,
see Endangerment and Cause of Contribute Findings for
Greenhouse Gases, 74 Fed. Reg. 66,496, 66,526 (Dec. 15,
2009) (“EPA Endangerment Finding”), but the choking,
stifling, and degenerative effect of airborne pollutants on
human beings and their affected localities. Congress has long
quantified this harm in terms of mortality rates, see, e.g., Air
Pollution — 1968, 564 (statement of Dr. Roger S. Mitchell,
Director, Webb-Waring Institute for Medical Research), not
acreage of “costal land” lost. Massachusetts, 549 U.S. at 522.
To put matters pointedly: the injury sufficient to establish
standing need not suffice to establish endangerment as well.

    Congress was of course free to circumvent this close
cause-health effect nexus by devising a separate provision for
GHG regulation, much as it did for stratospheric ozone, but it
did no such thing. And nothing in the legislative history
suggests that Congress has deviated from this status quo.
                               8
    The plain language of the CAA only underscores the
Act’s non-applicability to GHGs insofar as it requires the
harm be of the sort “reasonably [] anticipated to endanger.”
42 U.S.C. §7251(a)(1) — a term we know to have a discrete
meaning.

                               C.

     In the present case, this Court had “little trouble”
disposing of the argument that the “PSD program is
specifically focused solely on localized air pollution” because
it is “quite clear . . . the PSD program was intended to protect
against precisely the types of harms caused by greenhouse
gases.”        CRR Slp. Op. 62–63 (emphasis added).
Massachusetts notwithstanding, this statement is a curious
thing in light of the uncontradicted legislative history just
discussed.2 So too is the court’s reliance on the statutory text,
particularly its finding that “the CAA expressly provides that
effects on ‘welfare’ means ‘effects on . . . weather . . . and
climate.’ ” Slp. Op. 62-63 (citing 42 U.S.C. § 7602(h)).

    As a textual matter, there is nothing “quite clear” about it.
The Supreme Court has declared that GHGs like CO2 are
pollutants within the meaning of the Act. Under the CAA,
however, EPA can regulate a pollutant only if the
administrator finds that the GHG causes or contributes to “air
pollution which may reasonably be anticipated to endanger
public health or welfare.” 42 U.S.C. §7251(a)(1) (emphasis
added). But in locating the CAA’s conception of “harm” in §
7602(h), the definition of “welfare,” and not §7251(a)(1)

    2
        As noted, the weather and climate issues targeted by the
CAA involve direct, deleterious, localized effects caused by
polluted air people breathe or suspended pollutants that may be
deposited on land and crops by precipitation.
                               9
generally, this court effectively skirted the operative statutory
language — “may reasonably be anticipated” — and rendered
it nugatory. This was in error. Section 7602(h) defines only
the potential objects of harm; the “reasonably be anticipated”
language of §7251(a)(1) supplies the requisite nexus between
the pollutant and the objects of its harm. The two provisions
must be read together if the statute is to be interpreted
faithfully. To put matters another way, the “may reasonably
be anticipated” language must do some analytical work in the
endangerment determination lest it be deemed surplusage.
See, e.g., Conference of State Bank Supervisors v. Conover,
715 F.2d 604, 627 (D.C. Cir. 1983) (“[I]n construing a statute,
we ‘are obliged to give effect, if possible, to every word
Congress used.’ ” (quoting Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979))). And in view of the CAA’s legislative
history, the nature of that work is clear.

    In order to reasonably anticipate that a pollutant will
contribute to air pollution that endangers public health or
welfare, the Agency would have to conclude that pollution
created by CO2 or another GHG is a reasonably direct cause
of the damage to public health and welfare. To find that CO2
may ultimately endanger public health and welfare because
sea levels will rise tells us nothing about whether CO2
concentrations in the ambient air directly harm public health
and welfare. The ingredients of a Killer Smog are few and
specific; the process through which an air inversion traps
particulate matter close to the ground is well understood.
With both there is a direct correlation between reducing the
concentration of the pollutant and reducing the negative
health effects. Questions of public health impacts from air
pollution have consistently been based on the direct — that is,
inhalational — effects of exposure to the pollutant. See, e.g.,
Joint Opening Brief of Non-State Petitioners and Supporting
Intervenors at 58, Coal. for Responsible Regulation v. EPA,
                                10
No. 09-1322 (May 20, 2011); NRDC, Inc. v. EPA, 902 F.2d
962, 973 (D.C. Cir. 1990) (concluding that EPA may not
consider the health effects of increased unemployment when
setting new health-based NAAQS)

    In contrast, any harm to human health and welfare flowing
from climate change comes at the end of a long speculative
chain. The dissent in Massachusetts pointed out that EPA had
described in great detail the scientific uncertainty that
precluded even forming a judgment as to whether greenhouse
gases endanger public welfare. See 549 U.S. at 553–55
(Scalia, J., dissenting). In that earlier defense of its refusal to
form a judgment, EPA explained how predicting climate
change involved a “complex web of economic and physical
factors,” including:

    [o]ur ability to predict future global anthropogenic
    emissions of GHGs and aerosols; the fate of these
    emissions once they enter the atmosphere (e.g., what
    percentage are absorbed by vegetation or are taken up by
    the oceans); the impact of those emissions that remain in
    the atmosphere on the radiative properties of the
    atmosphere; changes in critically important climate
    feedbacks (e.g., changes in cloud cover and ocean
    circulation); change in temperature characteristics (e.g.,
    average temperatures, shifts in daytime and evening
    temperatures); changes in other climatic parameters (e.g.,
    shifts in precipitation, storms); and ultimately the impact
    of such changes on human health and welfare (e.g.,
    increases or decreases in agricultural productivity, human
    health impacts).

Id. If there can be this much logical daylight between the
pollutant and the anticipated harm, there is nothing EPA is not
authorized to do. If this finding is valid, in a world where six
                               11
degrees of separation is the compass of all humankind, the
right endangerment finding would allow EPA to rule the
world. But as this Court has noted before, EPA’s authority to
regulate is constrained, not enlarged, by the relationship of the
term “will endanger” to other sections of the CAA. See Ethyl
v. EPA, 541 F.2d 1, 29 (D.C. Cir. 1976) (en banc).

    Of course, nothing here should be taken to imply that a
particular GHG does not contribute to climate change. I mean
only to suggest that a pollutant might contribute to the
nebulous mélange of potential drivers of climate change
without having any direct, deleterious impact within the
meaning of the CAA. I emphasize too that this is not a
problem with science. This is a problem of statutory
interpretation. Climate change, with its geologic timeframe
and its many uncertainties and imponderables, is and will
probably remain a subject of some controversy. EPA finds
the science sufficiently convincing for its purposes and it is
entitled to a certain amount of deference on questions related
to its technical expertise. But it is not necessary to quibble
with the science of climate change to conclude that the
endangerment finding fails on textual and logical terms.
There is simply a point at which a difference in degree
becomes a difference in kind and we have passed this point
many times over in the course of this tortured litigation. The
Supreme Court, however, has refused to recognize as much
for tailpipe emissions.

                               II.

                               A.

     But we need not follow Massachusetts off the proverbial
cliff and apply its reasoning to the unique Title V and PSD
provisions not considered in that case. The cascading layers
                               12
of absurdity that flow from that interpretive exercise make
clear that the plain language of the CAA compels no such
result. As EPA’s own rulemaking documents have so
unabashedly explained:

    To apply the statutory PSD and title V applicability
    thresholds literally to sources of GHG emissions would
    bring tens of thousands of small sources and
    modifications into the PSD program each year, and
    millions of small sources into the title V program. These
    extraordinary increases in scope of the permitting
    programs would mean that the programs would become
    several hundred-fold larger than what Congress appeared
    to contemplate.

PSD and Title V Greenhouse Gas Tailoring Rule; Final Rule,
75 Fed. Reg. 31,514, 31,533 (Jun. 3, 2010) (“Final Tailoring
Rule”). Completely oblivious to the irony, EPA added:

    For our authority to take this action, we rely in part on the
    “absurd results” doctrine, because applying the PSD and
    title V requirements literally (as previously interpreted
    narrowly by EPA) would not only be inconsistent with
    congressional intent concerning the applicability of the
    PSD and title V programs, but in fact would severely
    undermine congressional purpose for those programs.

Id. at 31,541–42. And again:

    [I]n this case because a literal reading of the PSD and
    title V applicability provisions results in insurmountable
    administrative burdens.           Those insurmountable
    administrative burdens — along with the undue costs to
    sources — must be considered “absurd results” that
                               13
    would undermine congressional purpose for the PSD and
    title V programs.

Id. at 31,547.

     In precincts outside Washington, D.C., this litany might
cause a regulator to pause and consider whether results so at
odds with Congressional presuppositions could ever be
justified as falling within the literal meaning of an enactment.
EPA, however, proposes that the absurd result can be easily
eliminated by ramping up and gradually phasing in the
requirements. Faced with the choice of reconsidering the
legitimacy of an endangerment finding that sets in motion
such a cluster of chaos or rewriting the statute, the agency has
blithely done the latter. This is an abuse of the absurdity and
administrative necessity doctrines as neither can be invoked to
preempt legislative prerogatives. Permitting a statute “to be
read to avoid absurd results allows an agency to establish that
seemingly clear statutory language does not express the
‘unambiguously expressed intent of Congress,’ ” but it does
not grant the agency “a license to rewrite the statute.” Mova
Pharmaceuticals v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir.
1998).

    But that is not the worst of it. The real absurdity —
apparently as invisible to the EPA as the San Gabriels once
were to me — cannot be cured by phase in, no matter how
subtly Byzantine.       The real absurdity is that this
unprecedented expansion of regulatory control, this epic
overreach, may very well do more damage to the wellbeing of
Americans than GHGs could ever do.3

    3
       See, e.g., Joint Reply Br. of Non-State Petitioners and
Supporting Intervenors at *1, No. 09-1322 (Nov. 14 2011) (“Nor
does [EPA] dispute that the new rules will impose massive burdens
on a struggling economy, or that its program of vehicle standards
                              14

                              B.

    A second, more elementary consideration counsels against
the mechanical application of Massachusetts’s tailpipe
emissions determination to these distinct CAA provisions:
deference to Congress.

     As articulated in Food & Drug Administration v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000), the
Supreme Court’s “major questions” canon gives form to the
judicial intuition so strongly implicated here: Congress should
not be presumed to have deferred to agencies on questions of
great significance more properly resolved by the legislature.
If there was ever a regulation in recent memory more befitting
such a presumption than the present, I confess I do not know
of it.

     On familiar facts, the Supreme Court in Brown &
Williamson rebuffed the FDA’s expansionist effort to bring
tobacco products within its regulatory ambit. The agency’s
regulation rested on a strained interpretation of the Food,
Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., in which it
defined nicotine as a “drug” and cigarettes and smokeless
tobacco as “combination products” used to deliver nicotine to
the body. See Brown & Williamson, 529 U.S. at 125–27.
Applying Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984), the Court first considered the
statutory structure. “[I]f tobacco products were within the
FDA’s jurisdiction,” the majority concluded, the normal
operation of the “Act would require the FDA to remove them
from the market entirely,” and this would “contradict

will affect global mean temperatures by no more than 0.01 degree
Celsius by 2100”).
                                15
Congress’ clear intent as expressed in its more recent,
tobacco-specific legislation.” Brown & Williamson, 359 U.S.
at 143. As the present case confirms, such absurdity is all but
inevitable where an agency attempts to regulate that which
“simply do[es] not fit” within its regulatory scheme. Id. The
Court next considered Congress’s 35 year history of tobacco-
specific legislation, finding it “clear” that this “legislation has
effectively ratified the FDA’s previous position that it lacks
jurisdiction to regulate tobacco.” Id. at 156.

     The Court then closed its lengthy Chevron discussion
with an appeal to first principles. The “inquiry into whether
Congress has directly spoken to the precise question at issue,”
the Court explained, “is shaped, at least in some measure, by
the     nature    of     the   question    presented.”    Id. at
159. Chevron deference operates on the assumption “that a
statute’s ambiguity constitutes an implicit delegation,” but
this tenuous fiction need not hold true in every
situation. Id. “In extraordinary cases,” the Court went on,
“there may be reason to hesitate before concluding that
Congress        has      intended     such      an     implicit
delegation.” Id. (referencing Stephen Breyer, Judicial Review
of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370
(1986) (“A court may also ask whether the legal question is
an important one. Congress is more likely to have focused
upon, and answered, major questions, while leaving
interstitial matters to answer themselves in the course of the
statute’s daily administration”)).4

    4
       MCI Telecommunications Corporation v. AT&T Co., 512
U.S. 218 (1994), a case the Brown & Williamson Court found
“instructive,” Brown & Williamson, 529 U.S. at 160, had advanced
a similar logic. In concluding Congress had spoken to the meaning
of the term “modify” as it appears in § 203(b) of the
Communications Act of 1934, the Court rejected FCC’s far more
expansive interpretation. The Court assumed in dicta that it was
                                16

    Declaring Brown & Williamson “hardly [the] ordinary
case,” the Court reasoned:

        Contrary to its representations to Congress since 1914,
        the FDA has now asserted jurisdiction to regulate an
        industry constituting a significant portion of the
        American economy. In fact, the FDA contends that,
        were it to determine that tobacco products provide no
        “reasonable assurance of safety,” it would have the
        authority to ban cigarettes and smokeless tobacco
        entirely. Owing to its unique place in American
        history and society, tobacco has its own unique
        political history. Congress, for better or for worse, has
        created a distinct regulatory scheme for tobacco
        products, squarely rejected proposals to give the FDA
        jurisdiction over tobacco, and repeatedly acted to
        preclude any agency from exercising significant
        policymaking authority in the area. Given this history
        and the breadth of the authority that the FDA has
        asserted, we are obliged to defer not to the agency's
        expansive construction of the statute, but to Congress’
        consistent judgment to deny the FDA this power.

Brown & Williamson, 529 U.S. at 159-60.

    In view of the language, structure, and history of the
CAA, I am simply unable to distinguish this logic from the
present case in any meaningful way. To the contrary, with

“highly unlikely that Congress would leave the determination of
whether an industry will be entirely, or even substantially, rate-
regulated to agency discretion — and even more unlikely that it
would achieve that through such a subtle device as permission to
‘modify’ rate-filing requirements.” MCI, 512 U.S. at 231. Certainly
the same might be said here as well.
                                  17
only the slightest of modifications one could rework the
above text to apply to GHG emissions.5

    Although the Massachusetts Court distinguished Brown
& Williamson, it did so only in the context of tailpipe
emissions. Its reasoning does not extend to Title V and the
PSD program.

     In the Court’s view, Brown & Williamson had “found
critical at least two considerations that have no counterpart in
[Massachusetts].” 549 U.S. at 531. First, whereas the
regulation of tobacco under the FDCA would have necessarily
led to a ban on tobacco products — an outcome that clashed
with the “common sense” intuition that Congress never meant
to remove those products from circulation — the expansion of
EPA’s “jurisdiction would lead to no such extreme measures

    5
        Perhaps:
         Contrary to its representations in Massachusetts v. EPA, the
         EPA has now asserted jurisdiction to regulate industries
         constituting a significant portion of the American economy.
         In fact, the EPA contends that, because greenhouse gases
         can be regulated as tailpipe emissions, it is obligated to
         regulate all stationary sources at admittedly “absurd”
         levels. Owing to its ubiquitous place in the planet’s life
         cycle, greenhouse gases have their own unique political
         history. Congress, for better or for worse, has declined to
         create a distinct regulatory scheme for greenhouse gases,
         squarely rejected proposals to give the EPA jurisdiction
         over greenhouse gases, and repeatedly acted to preclude
         any agency from exercising significant policymaking
         authority in the area. Given this history and the breadth of
         the authority that the EPA has asserted, we are obliged to
         defer not to the agency's expansive construction of the
         statute, but to Congress’ consistent judgment to deny the
         EPA this power.
                               18
[because] EPA would only regulate emissions” and “there is
nothing counterintuitive to the notion that EPA can curtail the
emission of substances that are putting the global climate out
of kilter.” Id. But the Court spoke too soon. In the present
litigation, EPA argued — and a Panel of this Court readily
agreed — that in regulating tailpipe emissions under 42
U.S.C. § 7521, it is obligated to regulate stationary sources
under Title V and the PSD program as well. As a threshold
matter, the Massachusetts Court never considered these far-
reaching effects. It limited its brief discussion on the merits
to the tailpipe emissions question squarely before it. In this
way, the Court never considered the differing ways in which
the CAA regulates tailpipes and stationary sources.

     With tailpipe emissions, the inclusion of greenhouse
gasses within the term “air pollutant” does not directly expand
or contract the universe of vehicles and engines subject to the
new standards. Consequently, the regulation’s impact will
fall primarily on those manufacturers already complying with
existing emission requirements. And even then, the Court
explained, EPA “would have to delay any action ‘to permit
the development and application of the requisite technology,
giving appropriate consideration to the cost of
compliance.’ ” Massachusetts, 549 U.S. at 531 (quoting
§ 7521(a)(2)). Not so with the regulation of stationary
sources. Insofar as 42 U.S.C. § 7479(1) defines “major
emitting facility” to include those facilities with the “potential
to emit” either 100 or 250 “tons per year or more of any air
pollutant,” the statutory term is necessarily tied to CAA’s
jurisdictional scope. Inescapably, then, the regulation of
greenhouse gasses as “air pollutants” will radically expand the
universe of covered entities far beyond Congress’s
intentions. EPA’s decidedly extra-textual Tailoring Rule only
confirms the ludicrousness of this result. Nor can it be said
that the statutory safeguards operate in the same way as §
                                19
7521(a)(2). Permitting authorities may well be able to
determine on a case-by-case basis what constitutes the “best
available control technology” for a particular emitting facility,
42 U.S.C. § 7479(3), but this is of little consolation for the
small business owner who previously fell outside the CAA.
At bottom, this outcome clashes with the “common sense”
understanding that Congress would not have intended such a
broad, unchecked expansion of the CAA to potentially
millions of businesses from all walks of industry. The
Supreme Court in Massachusetts simply did not have
occasion to consider this absurd and “counterintuitive”
outcome, but we do — and we must.

     Second, the Court determined that the “unbroken series
of congressional enactments” referenced in Brown &
Williamson “made sense only if adopted ‘against the backdrop
of the FDA’s consistent and repeated statements that it lacked
authority under the FDCA to regulate tobacco.’ ”
Massachusetts, 549 U.S. at 531.6 By contrast, EPA had “not
identified any congressional action that conflicts in any way
with the regulation of greenhouse gases from new motor
vehicles.” Id. And even if it had, “Congress could not have
acted against a regulatory ‘backdrop’ of disclaimers of
regulatory authority” because “EPA had never disavowed the
authority to regulate greenhouse gases, and in 1998 it in fact
affirmed that it had such authority.” Id. When read in
context, however, it is clear that the Court’s reasoning was
building toward a wholly unspectacular point: because EPA’s
legislative history failed to establish congressional intent with
    6
      The suggestion here seems to be that Congress’s decision to
regulate tobacco products would not, by itself, evince its intent to
proscribe agencies from doing the same. Doing so in light of
FDA’s statements, however, had the effect of implicitly codifying
the agency’s long-held view.
                                20
the same weight and precision as Brown & Williamson, it did
not justify “read[ing] ambiguity into a clear statute.” Id.
That logic is inapplicable here. In the absence of lexical
clarity — which the Court had found in in CAA’s “sweeping
definition of ‘air pollutant,’ ” id. at 528 — we need legislative
history and other indicia of congressional intent to inform our
understanding of how GHGs are to be regulated under other
CAA provisions.7

     The Massachusetts Court’s effort to distinguish Brown &
Williamson is thus unavailing where we deal not with the
definitional scope of “any pollutant” and tailpipe emissions,
but the particular dangers Congress sought to combat in
enacting Title V and the PSD program. When read in
conjunction with the CAA’s history, structure, and language,
the intuitive logic of the “major questions” doctrine makes
clear that the Panel erred in extending Massachusetts.

    7
       Consider the role of NAAQS in this regulatory system. EPA
in Massachusetts had observed that NAAQS were established to
“address air pollution problems that occur primarily at ground
level” as well as “concentrations of substances in the ambient air
and the related public health and welfare problems.”
Massachusetts, 549 U.S. at 558–59 (Scalia, J., dissenting). EPA
thus reasoned that the regulation of the buildup of CO2 in the upper
reaches of the atmosphere — the process alleged to cause global
climate change — was not akin to regulating the concentration of a
substance that is polluting the air and was “beyond the scope of
CAA’s authorization to regulate.” Id. In other words, EPA
maintained that had Congress intended the CAA to regulate
greenhouse cases and global climate change, it would have
provided some better tool than NAAQS. That defense — offered in
response to a demand to regulate tailpipe emissions — applies with
even greater potency to Title V and the PSD program. In fact,
although EPA now claims it is authorized to regulate greenhouse
gases and global climate change, the agency acknowledges that the
regulatory framework is as ill-suited to the task as ever.
                                21
Congress simply did not intend for EPA to convert the “Clean
Air Act” to the “Warm Air Act” writ large. But that is exactly
what the federal courts have done.

      As the Chief Justice observed in his Massachusetts
dissent, impatience is not a juridical principle that can be
sustained under our constitutional framework. See
Massachusetts, 549 U.S. at 535–36 (Roberts, C.J., dissenting).
It certainly fares no better as a default measure of institutional
choice under Chevron. As Massachusetts recognized, an
agency can only exercise the authority Congress has delegated
to it. See 549 U.S. at 534–35 (noting that EPA must “ground
its reasons for action or inaction in the statute” and “exercise
its discretion within defined statutory limits.”). Absurdity can
never figure as an adequate substitute for authority in this
threshold assessment. Nor can absurdity cure the agency’s
failure to establish that the statute unambiguously compels its
interpretation or that its interpretation, though discretionary, is
actually consistent with statutory text, structure, and purposes.
The agency seeks to avoid these pesky constraints here by
invoking Massachusetts, but Article III judges cannot be a
legitimate source of legislative authority. By deferring to the
distorted claim of delegation advanced here, this Court has
transformed Chevron from a useful, albeit accidental,
touchstone into an idol to which we surrender our
constitutional faith.

                               III.

     In rejecting State Petitioners’ challenge to the Tailoring
Rule for want of standing, the Panel invoked that famed
preceptor of American civics, Schoolhouse Rock, to great
effect. Slp. Op. at 79. (“As a generation of schoolchildren
knows, ‘by that time, it’s very unlikely that [a bill will]
become a law. It’s not easy to become a law.’ ”). I certainly
                              22
do not quarrel with such dispositive authority. Lawmaking is
neither easy nor certain. In an ordinary case, the mere
possibility of “corrective legislation” will not establish that
redress is “likely, as opposed to merely speculative.” Lujan,
504 U.S. at 561. But it bears repeating that this is not an
ordinary case. Where the choice is between non-action or a
confessedly “absurd” regulation poised to impress countless
billions of dollars in costs on American industry, we have
transcended the realm of the speculative. For once, the
comparison with Massachusetts is apt. The Supreme Court
found standing on the basis of an estimated rise in sea level of
20 to 70 centimeters by the year 2100, see Massachusetts, 549
U.S. at 542 (Roberts, C.J, dissenting) — a prediction based
almost entirely on conjecture. Is it any more speculative to
say that specific projections of billions of dollars in actual
regulatory costs would not suffice to compel Congress to act?

     The Panel’s alternative contention fares better: because
Congress could remedy the issue in countless ways, not all of
which inure to State Petitioners’ benefit, the inquiry is
“inherently speculative.” See Op. at 79. This argument
benefits from the genuine uncertainty in Congress over what,
if any, role EPA should play in GHG regulation. But therein
lies a frighteningly obtuse logic. If EPA actions are ultra
vires precisely because disagreement on the Hill prevented
Congress from altering the status quo and authorizing such
regulation, how then can the very same deadlock be used to
defeat Petitioners’ standing to challenge the Rule through
which EPA effectuates its absurdist scheme? The Court
cannot have it both ways.

     At bottom, bad decisions make bad law. In denying
rehearing en banc, this Court has read Massachusetts to its
illogical ends and it is American industry that will have to
pay. That this Court did so is unsurprising, but certainly not
                               23
fated. Massachusetts does not compel this outcome for the
PSD and Title V provisions. Had this Court interrogated its
own assumptions and yielded not to Massachusetts’s telos but
sound constitutional principles, it would have found that the
matter properly belongs before Congress, not courts or
agencies. As Schoolhouse Rock long ago explained:

                      Ring one, Executive,
             Two is Legislative, that’s Congress.
                     Ring three, Judiciary.
            See it’s kind of like my circus, circus.8

And what a circus it is.

     For these reasons, I respectfully dissent from the denial
of rehearing en banc.




    8
       “Three Ring Government,” Schoolhouse Rocks, available at
http://www.schoolhouserock.tv/ThreeRing.html.
     KAVANAUGH, Circuit Judge, dissenting from the denial
of rehearing en banc:

     This case is plainly one of exceptional importance. A
decision in either direction will have massive real-world
consequences. The U.S. Chamber of Commerce describes the
EPA regulations at issue here as “the most burdensome,
costly, far-reaching program ever adopted by a United States
regulatory agency.” Petition for Rehearing En Banc at 1. On
the other hand, EPA issued these regulations to help address
global warming, a policy issue of major long-term
significance to the United States. Put simply, the economic
and environmental policy stakes are very high.

     Of course, our role is not to make the policy choices or to
strike the balance between economic and environmental
interests. That job is for Congress and the President when
considering and enacting legislation, and then as appropriate
for the Executive Branch – here, EPA, under the ultimate
supervision of the President – when exercising its authority
within statutory constraints. Our job as a court is more
limited: to ensure that EPA has acted within the authority
granted to it by Congress. In this case, I conclude that EPA
has exceeded its statutory authority. I respectfully disagree
with the panel opinion’s contrary conclusion, and given the
overall importance of the case, I respectfully dissent from the
denial of rehearing en banc.

                               I

                               A

    This case concerns EPA’s implementation of the
Prevention of Significant Deterioration provisions of the
Clean Air Act. The Prevention of Significant Deterioration
program – which is codified in Sections 7470 to 7479 of Title
42 – is designed to maintain state and local compliance with
                                2

the National Ambient Air Quality Standards, known as the
NAAQS. The NAAQS are currently established for six air
pollutants: carbon monoxide, lead, nitrogen dioxide, ozone,
particle pollution, and sulfur dioxide. As relevant here, the
Prevention of Significant Deterioration statute requires
stationary facilities that emit certain “air pollutants” to obtain
permits before beginning new construction. See 42 U.S.C.
§§ 7475(a)(1), 7479(1). To obtain a permit, the facility must
undergo a lengthy, costly process to analyze the new
construction’s impact on air quality and to try to demonstrate
its compliance with the relevant emissions limits.

     A central question in this case is how to construe the term
“air pollutant” for purposes of this statutory permitting
requirement. In particular, the question is whether the term
“air pollutant” here covers not just the NAAQS pollutants,
which can cause breathing problems or other health issues,
but also greenhouse gases such as carbon dioxide, which
contribute to global warming.             Under the broader
interpretation of “air pollutant” that encompasses greenhouse
gases, a far greater number of facilities would fall within the
Prevention of Significant Deterioration program and have to
obtain pre-construction permits. That in turn would impose
significantly higher costs on businesses and individuals that
are building new commercial or residential property.

    In considering a different Clean Air Act program targeted
at motor vehicle emissions, the Supreme Court said that the
term “air pollutant” meant “all airborne compounds of
whatever stripe,” which included greenhouse gases such as
carbon dioxide. Massachusetts v. EPA, 549 U.S. 497, 529
(2007). But all parties here, including EPA, agree that the
Massachusetts v. EPA interpretation of the term “air
pollutant” cannot control in this case, for purposes of this very
                               3

different Clean Air Act program for stationary facilities.
Rather, as the parties agree, we must look to the text and
context of the Prevention of Significant Deterioration statute
to determine what “air pollutant” covers here.

     Looking at the relevant statutory text and context, there
would initially appear to be two plausible interpretations of
the term “air pollutant” for purposes of the Prevention of
Significant Deterioration statute: (i) more broadly, an airborne
compound that is deemed harmful and is regulated by EPA in
any Clean Air Act program, which would include greenhouse
gases such as carbon dioxide; or (ii) more narrowly, the six air
pollutants that are regulated by EPA in setting and enforcing
the NAAQS, which would cover carbon monoxide, lead,
nitrogen dioxide, ozone, particle pollution, and sulfur dioxide,
but would not include greenhouse gases such as carbon
dioxide.

     EPA chose the broader interpretation of “air pollutant,”
thereby greatly expanding the reach of the Prevention of
Significant Deterioration statute.          But that broader
interpretation has a glaring problem, as EPA itself recognized.
In the context of the Prevention of Significant Deterioration
statute, EPA’s broader interpretation would not mesh with
other provisions of the statute and would lead to absurd
results.    That’s because the Prevention of Significant
Deterioration statute requires pre-construction permits for
facilities with the potential to emit more than 250 tons per
year (or, for some facilities, 100 tons per year) of any covered
pollutant. See 42 U.S.C. §§ 7475(a)(1), 7479(1). That would
be a very low trigger for emissions of greenhouse gases
because greenhouse gases are emitted in far greater quantities
than the NAAQS pollutants. As a result, the low trigger
would mean a dramatically higher number of facilities would
                               4

fall within the program and have to obtain pre-construction
permits.

     In an unusual twist, EPA openly acknowledged the
unreasonableness – indeed, the absurdity – caused by its
interpretation of the statute. If the Prevention of Significant
Deterioration program were interpreted to require pre-
construction permits based on emissions of greenhouse gases,
EPA candidly stated that the result would be “so contrary to
what Congress had in mind – and that in fact so undermines
what Congress attempted to accomplish with the PSD
requirements – that it should be avoided under the ‘absurd
results’ doctrine.” 74 Fed. Reg. 55,292, 55,310 (Oct. 27,
2009).

     But faced with those absurd consequences from the
broader interpretation of the statute, EPA surprisingly did not
choose the seemingly obvious option of adopting the narrower
and more sensible interpretation of the term “air pollutant” for
the Prevention of Significant Deterioration statute – the
interpretation limited to NAAQS air pollutants. Instead, EPA
plowed ahead with the broader interpretation. And then, to
try to deal with the absurd repercussions of that interpretation
for the Prevention of Significant Deterioration statute, EPA
re-wrote the very specific 250-ton trigger in the permitting
requirement of the statute, unilaterally raising that trigger for
greenhouse gas emissions from 250 tons to 100,000 tons – a
400-fold increase. See 75 Fed. Reg. 31,514 (June 3, 2010).
EPA believed that re-writing the statute’s permitting-triggers
provision in this way would reduce the number of facilities
that would require pre-construction permits and thereby
“tailor” the absurdity – that is, alleviate some of the absurdity
                                5

caused by interpreting “air pollutant” to cover greenhouse
gases. 1

     This is a very strange way to interpret a statute. When an
agency is faced with two initially plausible readings of a
statutory term, but it turns out that one reading would cause
absurd results, I am aware of no precedent that suggests the
agency can still choose the absurd reading and then start re-
writing other perfectly clear portions of the statute to try to
make it all work out. And just recently, the Supreme Court
reminded the Executive Branch and the lower courts that this
is not the proper way to interpret a statute: Instead of
“reading new words into the statute” to avoid absurd results,
as the Government had urged in that case, the Court said that
the statute should be interpreted so that “no absurdity arises in
the first place.” Kloeckner v. Solis, No. 11-184, slip op. at 13
(U.S. 2012).

     Even limited to this case alone, the practical implications
of accepting EPA’s approach are obviously major. And if this
case stands as a precedent that influences other agency
decisionmaking, the future consequences likewise could be
significant: Agencies presumably could adopt absurd or
otherwise unreasonable interpretations of statutory provisions
and then edit other statutory provisions to mitigate the

    1
        At the same time, EPA reserved the right to ratchet the
trigger all the way back down to 250 tons, thereby bringing more
and more facilities under the program at EPA’s unilateral
discretion. EPA’s assertion of such extraordinary discretionary
power both exacerbates the separation of powers concerns in this
case and underscores the implausibility of EPA’s statutory
interpretation. Put simply, the statute cannot be read to grant
discretion to EPA to raise or lower the permitting triggers as EPA
sees fit.
                              6

unreasonableness. Allowing agencies to exercise that kind of
statutory re-writing authority could significantly enhance the
Executive Branch’s power at the expense of Congress’s and
thereby alter the relative balance of powers in the
administrative process. I would not go down that road.

                              B

     In my view, the statutory issue here is reasonably
straightforward. The Prevention of Significant Deterioration
statute’s definition of “major emitting facility” subjects a
facility to the permitting requirement based on the facility’s
emissions of “air pollutants.” See 42 U.S.C. §§ 7475(a)(1),
7479(1). In the context of the Prevention of Significant
Deterioration program as a whole, it seems evident that the
term “air pollutant” refers to the NAAQS air pollutants.

     To begin with, as explained above, interpreting “air
pollutant” in this context to refer to the NAAQS air pollutants
would avoid the absurd consequences that EPA’s broader
interpretation creates – namely, the exponential increase in
the number of facilities that would be required to obtain pre-
construction permits. That single point alone provides
dispositive support for the narrower, NAAQS-specific
interpretation. See, e.g., Taniguchi v. Kan Pacific Saipan,
Ltd., 132 S. Ct. 1997, 2004-05 (2012) (statutory context
supports narrower rather than broader reading of statutory
term).

     Moreover, other provisions in the Prevention of
Significant Deterioration statute likewise plainly use the term
“air pollutant” to refer to the NAAQS air pollutants. The
Prevention of Significant Deterioration program is codified in
Sections 7470 to 7479 of Title 42. Of relevance here, Section
7473 sets guidelines for areas designated as in attainment of
                               7

the NAAQS and requires that the “concentration of any air
pollutant” in those areas not exceed certain concentrations
permitted by the NAAQS. 42 U.S.C. § 7473(b)(4). The term
“air pollutant” in Section 7473(b)(4) necessarily refers to the
NAAQS air pollutants. In addition, several other provisions
in the Prevention of Significant Deterioration statute similarly
refer to Section 7473(b)(4)’s maximum concentrations for
NAAQS pollutants. Each of those references thus also
necessarily employs a NAAQS-specific use of the term “air
pollutant.”    See, e.g., 42 U.S.C. § 7473(c)(1) (listing
exclusions from “the maximum allowable increases in
ambient concentrations of an air pollutant”); § 7474(a)(B)
(redesignations cannot cause “concentrations of any air
pollutant” to exceed the maximum); see also § 7475(a)(3)(A)
(facility may not cause air pollution in excess of “maximum
allowable concentration for any pollutant”).

     So it’s clear that a variety of provisions in the Prevention
of Significant Deterioration statute use “air pollutant” to refer
to a NAAQS air pollutant. And we presume that, unless
otherwise indicated, the term “air pollutant” is used the same
way throughout the Prevention of Significant Deterioration
statute – and here, we have no reason to conclude otherwise.
See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (“identical
words used in different parts of the same statute are generally
presumed to have the same meaning”).

     By contrast, when Congress wanted, in the Prevention of
Significant Deterioration statute, to refer to a broader set of
pollutants than the NAAQS pollutants, it did so expressly.
Thus, a facility that requires a pre-construction permit
because of its emissions of NAAQS pollutants must employ
the best available control technology for emissions not just of
“air pollutants” but of “each pollutant subject to regulation
                                 8

under this chapter,” which – now that EPA has regulated
greenhouse gases in other parts of the Clean Air Act – does
include greenhouse gases. 42 U.S.C. § 7475(a)(4). By its
terms, Section 7475(a)(4) thus applies to greenhouse gases,
not just the NAAQS. Importantly, however, Congress did not
employ the language “each pollutant subject to regulation
under this chapter” in the statutory provision setting forth
which facilities must obtain a pre-construction permit, the
provision at issue in this case. And the policy distinction
drawn in Section 7475(a)(4) is rather intuitive: Congress
designed the statute’s permitting requirement based on
facilities’ NAAQS emissions, but, once those facilities are
subject to the permitting requirement, they must also meet a
range of other minimum environmental standards. 2

     The overall objectives of the Prevention of Significant
Deterioration statute also suggest that “air pollutant” refers to
the NAAQS air pollutants for purposes of the permitting
requirement. Importantly, the Prevention of Significant
Deterioration statute applies only in areas that have met the
NAAQS – that is, areas that do not have excessive emissions
of the NAAQS air pollutants. If the purpose of this statute
were in part to address global warming by requiring pre-
construction permits for facilities that emit greenhouse gases,
as EPA’s reading suggests, why would the statute target the
construction of facilities only in areas that are in compliance
with the NAAQS – and not elsewhere in the United States?


    2
       Section 7479(1) – the definition of “major emitting facility”
– speaks of “any” air pollutant. But the word “any” just begs the
question of what the term “air pollutant” covers in the Prevention of
Significant Deterioration program. It’s either any air pollutant
regulated under the Clean Air Act or any of the NAAQS air
pollutants.
                              9

That would make little sense, which in turn further suggests
that EPA has misread the statute.

     Moreover, as its name indicates, the Prevention of
Significant Deterioration statute is designed primarily to
prevent “deterioration” of an attainment area’s air quality.
The relevant air quality standards that define whether an area
is in attainment are the NAAQS. In a statute expressly linked
to the NAAQS and designed to ensure that air quality does
not “deteriorate” with respect to the NAAQS, it is somewhat
illogical to read the statute as requiring pre-construction
permits simply because a facility may emit substances that
will not affect attainment of the NAAQS. Under EPA’s
approach, a facility could be covered by the permitting
requirement even if it emits no NAAQS air pollutants at all.
That, too, makes little sense and suggests that EPA has
misread the statute.

     A separate canon of interpretation further demonstrates
that EPA’s broad reading of the term “air pollutant” is at odds
with Congress’s design. By requiring a vastly increased
number of facilities to obtain pre-construction permits, EPA’s
interpretation will impose enormous costs on tens of
thousands of American businesses, with corresponding effects
on American jobs and workers; on many American
homeowners who move into new homes or plan other home
construction projects; and on the U.S. economy more
generally. Yet there is literally no indication in the text or
legislative record that Members of Congress ever
contemplated – much less intended – such a dramatic
expansion of the permitting requirement of the Prevention of
Significant Deterioration statute. Courts do not lightly
conclude that Congress intended such major consequences
absent some indication that Congress meant to do so. See
                               10

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
159-61 (2000). Here, as elsewhere, we should not presume
that Congress hid an elephant in a mousehole.

     For all of those reasons – the statutory text, the absurdity
principle, the statutory context as demonstrated by related
statutory provisions, the overarching objectives of the statute,
the major unintended consequences of a broader interpretation
– the Prevention of Significant Deterioration statute as a
whole overwhelmingly indicates that the permitting
requirement is based on emissions of the NAAQS air
pollutants.

     And just to reiterate, the simple and absolutely
dispositive point in this case is the following: The broader
interpretation of “air pollutant” adopted by EPA produces
what even EPA itself admits are absurd consequences. When
an agency is faced with two plausible readings of a statutory
term, but one reading would cause absurd results, the agency
cannot choose the absurd reading. Here, therefore, EPA was
required to adopt the narrower and more sensible
interpretation of “air pollutant,” the interpretation limited to
the NAAQS pollutants. As the Supreme Court has said,
“interpretations of a statute which would produce absurd
results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.” Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Such
an “alternative interpretation[] consistent with the legislative
purpose” is readily available here.

                               II

    If that were the end of the analysis, I would not hesitate
to conclude that EPA had adopted an impermissibly broad
reading of the term “air pollutant” for purposes of the
                                11

permitting provision of the Prevention of Significant
Deterioration statute. But before reaching that conclusion
definitively, we need to consider whether EPA’s approach
was mandated by the Supreme Court’s decision in
Massachusetts v. EPA, 549 U.S. 497 (2007). In that case, the
Supreme Court considered the general statutory term “air
pollutant” as applied to a different aspect of the Clean Air Act
– the motor vehicle emissions program. The Court there
interpreted “air pollutant” very broadly to mean “all airborne
compounds of whatever stripe,” including greenhouse gases.
Id. at 529.

     Does Massachusetts v. EPA dictate EPA’s broader
interpretation of “air pollutant” in the different context of the
Prevention of Significant Deterioration statute? The panel
opinion seemed to think so; its conclusion appears to have
been heavily if not dispositively influenced by Massachusetts
v. EPA. See, e.g., Coalition for Responsible Regulation, Inc.
v. EPA, 684 F.3d 102, 134, 136 (D.C. Cir. 2012). In my view,
however, the holding in Massachusetts v. EPA does not
control the result in this case. Indeed, as explained more fully
below, even EPA has concluded that Massachusetts v. EPA
does not control here. The decision in Massachusetts v. EPA
concerned the motor vehicle emissions program, a point the
Supreme Court expressly noted many times in its opinion.
The case did not purport to say that every other use of the
term “air pollutant” throughout the sprawling and multi-
faceted Clean Air Act necessarily includes greenhouse gases.
Each individual Clean Air Act program must be considered in
context. 3

    3
       As an analogy, take the familiar example of “no vehicles in
the park.” Assume that a court has decided that the term “vehicles”
generally includes bicycles, and that no bicycles are allowed in the
                                 12

     Importantly, in Massachusetts v. EPA, the Supreme Court
explicitly relied on the fact that the Clean Air Act’s
“capacious definition of ‘air pollutant,’” did not appear
“counterintuitive” or produce “extreme” consequences in the
context of motor vehicle emissions. 549 U.S. at 531-32. But,
as explained above, EPA’s capacious definition of “air
pollutant” is counterintuitive and does produce extreme
consequences in the context of the Prevention of Significant
Deterioration statute, as EPA itself acknowledges. Moreover,
in this case, an alternative and sensible interpretation of the
term “air pollutant” is readily discernible from the text,
context, and structure of the Prevention of Significant
Deterioration statute as a whole – namely, the NAAQS-
specific interpretation.

     To be sure, as noted earlier, the same words used in
different parts of an Act are often construed to have the same
meaning. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005). If
that were an inflexible command, the Massachusetts v. EPA
interpretation of “air pollutant” would certainly control here


park. Next assume that another park regulation states that “all park
service vehicles must have reinforced gas tanks.” In that latter
regulation, context tells us that the term “vehicles” obviously does
not include bicycles. Bicycles are still vehicles in the abstract, but
the gas-tank regulation logically applies only to a specific subset of
vehicles (namely, motor vehicles).
     So it is with “air pollutant” as used in different parts of the
Clean Air Act. Massachusetts v. EPA held that the term “air
pollutant” generally includes greenhouse gases. But that does not
mean that the term “air pollutant” can never be used in a narrower
sense. Greenhouse gases may qualify as “air pollutants” in the
abstract, but context tells us that the Prevention of Significant
Deterioration program uses the term “air pollutant” to refer only to
a subset of all air pollutants (namely, the NAAQS pollutants).
                              13

and throughout the entire Clean Air Act. But as the Supreme
Court recently reminded us – in the context of interpreting the
Clean Air Act – “the natural presumption that identical words
used in different parts of the same act are intended to have the
same meaning is not rigid and readily yields whenever there is
such variation in the connection in which the words are used
as reasonably to warrant the conclusion that they were
employed in different parts of the act with different intent.”
Environmental Defense v. Duke Energy Corp., 549 U.S. 561,
574 (2007) (internal quotation marks and ellipsis omitted).
As instructed by the Supreme Court, we must interpret
statutory terms based on their context and in light of the
statute as a whole, even if that approach on some occasions
means that the same term applies differently in different parts
of a statute. See, e.g., General Dynamics Land Systems, Inc.
v. Cline, 540 U.S. 581, 596-97 (2004) (term “age” has
different meanings within Age Discrimination in Employment
Act); United States v. Cleveland Indians Baseball Co., 532
U.S. 200, 212-13 (2001) (term “wages paid” has different
meanings within Social Security Act Amendments of 1939);
Robinson v. Shell Oil Co., 519 U.S. 337, 343-44 (1997) (term
“employee” has different meanings within Title VII).

     The Supreme Court’s application of that interpretive
principle in Environmental Defense v. Duke Energy – a
decision issued on the same day as Massachusetts v. EPA – is
illuminating. There, the Supreme Court confronted the Clean
Air Act’s definition of a stationary source “modification.”
See 549 U.S. at 567-68. That term was relevant to both the
New Source Performance Standards program and the
Prevention of Significant Deterioration program. The Court
ruled that EPA could interpret the term “modification”
differently for each of those two Clean Air Act programs,
even though “the terms share a common statutory definition.”
                               14

Id. at 574. In so holding, the Court analyzed the two
programs’ different regulatory goals, noting that a “given
term in the same statute may take on distinct characters from
association with distinct statutory objects calling for different
implementation strategies.” Id.

     The Supreme Court’s interpretive approach in
Environmental Defense v. Duke Energy – which recognizes
that the meaning of a statutory term in the Clean Air Act may
vary based on the particular program at issue – shows that the
Massachusetts v. EPA interpretation of “air pollutant” in the
context of the motor vehicle emissions program does not
necessarily require the same interpretation of “air pollutant”
in the context of the Prevention of Significant Deterioration
program. In Massachusetts v. EPA, the Supreme Court
emphasized that the regulation of greenhouse gases in the
motor vehicle emissions program would not be
“counterintuitive” and would not lead to any “extreme
measures.” 549 U.S. at 531. Greenhouse gas standards
would simply be added to the other regulations already
applicable to manufacturers of new motor vehicles, and any
such standards would take into account both cost and
technological feasibility. See 42 U.S.C. § 7521(a). By
contrast, the regulation of greenhouse gases in the Prevention
of Significant Deterioration program would be both
counterintuitive and extreme.        Tens of thousands of
businesses and homeowners would be swept into the Clean
Air Act’s purview for the first time and hit with permitting
costs averaging $60,000, not to mention the additional costs
of trying to construct and maintain the facility in compliance
with the relevant emissions limits and technological
standards. See 75 Fed. Reg. 31,514, 31,556 (June 3, 2010).
In addition, the costs associated with a vastly expanded
permitting requirement would deter numerous projects from
                              15

even starting in the first place. The major differences
between the motor vehicle emissions program and the
Prevention of Significant Deterioration program thus neatly
fit the Environmental Defense v. Duke Energy paradigm of
“distinct statutory objects calling for different implementation
strategies.”

     In reaching that conclusion, it bears mention that the
Clean Air Act is a very complicated statute encompassing
several distinct environmental programs. It is no surprise,
then, that the motor vehicle emissions program and the
Prevention of Significant Deterioration program are not the
only parts of the Act to employ a term like “air pollutant” in a
context-dependent way. For example, the visibility program
applies to facilities based on their emissions of “any
pollutant.” 42 U.S.C. § 7491(g)(7). In the context of that
program, EPA has interpreted the term “any pollutant” to
mean “any visibility-impairing pollutant,” which obviously
does not include greenhouse gases. 40 C.F.R. pt. 51, App. Y,
§ II.A. Similarly, the nonattainment program applies to areas
that have been designated as nonattainment “for any air
pollutant.” 42 U.S.C. § 7501(2). In the context of that
program, the term “air pollutant” is logically limited to the
NAAQS air pollutants, which are the only pollutants for
which an area can be designated as nonattainment. Id.
§ 7407(d)(1)(A). All of that simply underscores that a court
should exercise caution before reflexively importing the
interpretations applicable to one Clean Air Act program into a
distinct Clean Air Act program.

     Any lingering doubt that Massachusetts v. EPA does not
control here is dispelled when we recall that EPA itself has
rejected Massachusetts v. EPA’s interpretation of “air
pollutant” for the Prevention of Significant Deterioration
                               16

statute. The Court in Massachusetts v. EPA said that “air
pollutant” meant “all airborne compounds of whatever stripe.”
549 U.S. at 529. EPA has acknowledged, however, that such
a broad definition cannot possibly extend to the use of the
term “air pollutant” in the Prevention of Significant
Deterioration statute. EPA understood that it would be absurd
to require pre-construction permits because of emissions of
any airborne compound, including emissions of airborne
compounds that have not been deemed harmful and regulated
under the Clean Air Act. To avoid rendering the Prevention
of Significant Deterioration statute an absurdity, EPA
construed “air pollutant” to mean certain air pollutants – in
particular, “any regulated air pollutant.”

     The critical point for present purposes – and it really is a
critical point in thinking about the significance of
Massachusetts v. EPA to the present case – is that EPA itself
recognized that the Massachusetts v. EPA definition of “air
pollutant” cannot and does not control how to interpret “air
pollutant” in the Prevention of Significant Deterioration
context. As it tries to justify its broad interpretation of the
Prevention of Significant Deterioration statute, EPA cannot
simultaneously latch on to Massachusetts v. EPA and reject
Massachusetts v. EPA.

     If Massachusetts v. EPA does not control here – and even
EPA admits that it does not – then we are back where we
started.    EPA was faced with two initially plausible
interpretations of “air pollutant” for purposes of the
permitting requirement of the Prevention of Significant
Deterioration statute. One interpretation created patent
absurdities and made little sense given the other statutory
provisions. The other interpretation fit comfortably and
sensibly within the statutory text and context.          EPA
                               17

nonetheless chose the first option. In my view, EPA’s reading
of the statute was impermissible. An agency cannot adopt an
admittedly absurd interpretation and discard an eminently
sensible one.

      Given all of this, the case seems reasonably
straightforward. So how did the panel opinion reach the
opposite conclusion? I respectfully have three main points of
disagreement. First, as I read it, the panel opinion was
decisively influenced by Massachusetts v. EPA’s
interpretation of “air pollutant” in the context of the motor
vehicle emissions program. But in light of the material
differences between the motor vehicle emissions program and
the Prevention of Significant Deterioration program, the
Massachusetts v. EPA interpretation cannot control here, as
even EPA acknowledges.             Second, the panel opinion
attempted to buttress its choice of a broad interpretation of the
term “air pollutant” by pointing to Section 7475(a)(4), the
provision in the Prevention of Significant Deterioration
program requiring covered facilities to use the best available
control technology.       But as explained above, Section
7475(a)(4) actually cuts the other way because it specifically
refers to “each pollutant subject to regulation under this
chapter,” which now does include greenhouse gases –
whereas, by contrast, other statutory provisions in the
Prevention of Significant Deterioration program clearly
employ a NAAQS-specific interpretation of the unadorned
term “air pollutant.” Third, the panel gave insufficient weight
to the most critical point in this case, the absurd consequences
of EPA’s broad interpretation. This was a mistake because
the ultimate clincher in this case is one simple point: EPA
chose an admittedly absurd reading over a perfectly natural
reading of the relevant statutory text. An agency cannot do
that.
                              18

                              III

     In finding EPA’s statutory interpretation legally
impermissible, I do not in any way want to diminish EPA’s
vital policy objectives. EPA’s regulations for the Prevention
of Significant Deterioration statute may well be a good idea as
a matter of policy. The task of dealing with global warming
is urgent and important. But as in so many cases, the question
here is: Who Decides? The short answer is that Congress
(with the President) sets the policy through statutes, agencies
implement that policy within statutory limits, and courts in
justiciable cases ensure that agencies stay within the statutory
limits set by Congress. A court’s assessment of an agency’s
compliance with statutory limits does not depend on whether
the agency’s policy is good or whether the agency’s intentions
are laudatory. Even when that is true, we must enforce the
statutory limits. See Hamdan v. United States, 696 F.3d 1238
(D.C. Cir. 2012) (ruling that Executive Branch exceeded
statutory authority in wartime prosecution of al Qaeda
member).

     In cases like this one, the bedrock underpinnings of our
system of separation of powers are at stake. To be sure,
courts must be wary of undue interference with an agency’s
action implementing its statutory responsibilities.        See
American Radio Relay League, Inc. v. FCC, 524 F.3d 227
(D.C. Cir. 2008) (separate opinion of Kavanaugh, J.); see also
Desert Citizens Against Pollution v. EPA, 699 F.3d 524 (D.C.
Cir.    2012);     National     Environmental    Development
Association’s Clean Air Project v. EPA, 686 F.3d 803 (D.C.
Cir. 2012); American Petroleum Institute v. EPA, 684 F.3d
1342 (D.C. Cir. 2012); ATK Launch Systems, Inc. v. EPA, 669
F.3d 330 (D.C. Cir. 2012); Natural Resources Defense
Council v. EPA, 661 F.3d 662 (D.C. Cir. 2011); Medical
                                19

Waste Institute & Energy Recovery Council v. EPA, 645 F.3d
420 (D.C. Cir. 2011). To take one salient and important
example, the statutory scheme gives EPA significant
discretion in setting the NAAQS for the NAAQS air
pollutants – a discretion the courts must respect.

     But at the same time, undue deference or abdication to an
agency carries its own systemic costs. If a court mistakenly
allows an agency’s transgression of statutory limits, then we
green-light a significant shift of power from the Legislative
Branch to the Executive Branch. The Framers of the
Constitution did not grant the Executive Branch the authority
to set economic and social policy as it sees fit. Rather, the
Framers gave Congress, along with the President, that
legislative role (subject to constitutional limits), and they
assigned the Executive Branch the executive power to issue
rules and enforce the law within the limits set by Congress. 4

     It is true that the legislative process can be cumbersome
and frustrating, and the Executive Branch often is well-
intentioned in wanting to address pressing policy concerns
quickly, before the sometimes glacial congressional
machinery can be stirred to action. 5 The legislative process

    4
       In protecting national security, the Executive has some
Article II authority to act in certain circumstances in the Nation’s
defense even without specific congressional authorization. This is
known as Youngstown category two. See Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring). There is no general Youngstown category two
authority in the domestic social and economic realms, where the
Executive must have statutory authority in order to act.
     5
       In 2009, the House of Representatives passed a global
warming bill that was supported by the President. But the Senate
did not pass it. In the early 2000s, Senators McCain and Lieberman
                               20

can be slow because the Constitution makes it far harder to
enact legislation than to block it: Under the Constitution,
three different entities must agree in order to enact legislation
– the House, the Senate, and the President (or two-thirds of
both the House and the Senate to override a President’s veto).
But the Framers knew the legislative process would be
laborious. They designed it that way. The time and difficulty
of enacting new legislation has never justified an agency’s
contravention of statutory limits. The Framers specifically
contemplated, moreover, that there would be situations where
the Executive Branch confronts a pressing need that it does
not have current authority to address. In those circumstances,
the Constitution’s Recommendations Clause provides that the
President may “recommend” to Congress “such Measures as
he shall judge necessary and expedient.” U.S. CONST. art. II,
§ 3.

     Importantly, the separation of powers and checks and
balances of our system are designed not just to ensure that the
Branches operate within the proper spheres of their authority,
but also to protect individual liberty. As the Supreme Court
has explained many times, “while a government of opposite
and rival interests may sometimes inhibit the smooth
functioning of administration, the Framers recognized that, in
the long term, structural protections against abuse of power
were critical to preserving liberty. . . . The failures of . . .
regulation may be a pressing national problem, but a judiciary
that licensed extraconstitutional government with each issue
of comparable gravity would, in the long run, be far worse.”
Free Enterprise Fund v. Public Company Accounting


sought to pass global warming legislation, but no law was
ultimately enacted. Numerous other bills have been introduced
over the years, and various legislative efforts are ongoing.
                              21

Oversight Board, 130 S. Ct. 3138, 3157 (2010) (internal
quotation marks, alterations, and citations omitted).

     As a court, it is not our job to make the policy choices
and set the statutory boundaries, but it is emphatically our job
to carefully but firmly enforce the statutory boundaries. That
bedrock separation of powers principle accounts for my
concern about this case. Here, as I see it, EPA went well
beyond what Congress authorized for the Prevention of
Significant Deterioration statute. I respectfully disagree with
the panel’s resolution of this issue, and given the overall
importance of the case, I respectfully dissent from the denial
of rehearing en banc.
