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1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BIOGENIC CO 2 COALTION, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, and GINA MCCARTHY, Administrator, U.S. Environmental Protection Agency, Respondents. No MOTION FOR LEAVE TO INTERVENE BY THE CENTER FOR BIOLOGICAL DIVERSITY, FRIENDS OF THE EARTH, AND SIERRA CLUB Pursuant to 28 U.S.C. 2348, Federal Rules of Appellate Procedure 15(d and 27, and D.C. Circuit Rules 15(b and 27, the Center for Biological Diversity, Friends of the Earth, and Sierra Club (collectively, the environmental groups move for leave to intervene in Biogenic CO 2 Coalition s petition for review of the United States Environmental Protection Agency s Final Rule titled Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare. 81 Fed. Reg. 54,422 (Aug. 15, 2016 ( aircraft endangerment finding. 1

2 Respondent EPA does not oppose the environmental groups motion to intervene. Counsel for Petitioner has indicated that Biogenic CO 2 Coalition takes no position on the motion. INTRODUCTION On December 5, 2007, Friends of the Earth, the Center for Biological Diversity (the Center, and others petitioned EPA to take action under section 231(a(2(A of the Clean Air Act to determine whether greenhouse gas emissions from aircraft engines cause and contribute to air pollution that may reasonably be anticipated to endanger public health and welfare, and if so, to issue regulations to control such pollution. 1 In 2010, after EPA failed to respond to the petition, the Center and Friends of the Earth filed suit to compel it to respond to the petition and to issue an endangerment finding and emissions standards for aircraft greenhouse gases. Ctr. for Biological Diversity v. EPA, 794 F. Supp. 2d 151 (D.D.C On July 29, 2015, EPA issued a proposed endangerment finding. When the agency had not finalized the finding by April 2016, the Center and Friends of the Earth once again filed suit to compel it to do so and to issue emissions standards. Ctr. for Biological Diversity v. EPA, No. 1:16 CV On August 15, 2016, EPA issued its final finding that greenhouse gases from aircraft endanger public 1 Petition for Rulemaking Under the Clean Air Act to Reduce the Emissions of Air Pollutants from Aircraft that Contribute to Global Climate Change, December 5, 2

3 health and welfare. 81 Fed. Reg. 54,422. EPA is obligated to follow this endangerment finding with regulations setting greenhouse gas emissions standards for aircraft, 42 U.S.C. 231(a(2(A, a rulemaking in direct response to the petition the environmental groups submitted nearly a decade ago. Biogenic CO 2 Coalition now petitions this Court to review EPA s endangerment finding. The environmental groups seek to intervene in this action to defend EPA s endangerment finding and to ensure that standards to control greenhouse gas emissions from aircraft are promulgated without delay. Their motion is timely, see Fed. R. App. P. 15(d (allowing thirty days after the filing of a petition to move for intervention, and their participation will not delay these proceedings or prejudice any party. STATEMENT OF INTEREST AND GROUNDS FOR INTERVENTION Any entity whose interests are affected by [an] order of [a federal] agency, may intervene in any proceeding to review the order. 28 U.S.C Federal Rule of Appellate Procedure 15(d requires that a motion for leave to intervene in a proceeding seeking review of an agency order must contain a concise statement of the interest of the moving party and the grounds for intervention. This Court has held that this rule simply requires the intervenor to file a motion setting forth its 2007 ( Aircraft Petition (Docket EPA HQ OAR available at 3

4 interest and the grounds on which intervention is sought. Synovus Fin. Corp. v. Bd. of Governors of the Fed. Reserve Sys., 952 F.2d 426, 433 (D.C. Cir The environmental groups are committed to protecting their members and others from the impacts of dangerous air pollution from aircraft, including climate change and other harms to public health and welfare. See Siegel Decl., Ex (describing the work of the Center for Biological Diversity; Fashho Decl., Ex (describing the work of Sierra Club; Keever Decl., Ex (describing work of Friends of the Earth. Their interests in reducing harmful pollution from aircraft and ensuring accurate accounting and regulation of all carbon emissions from aircraft, including those from the combustion of biomass fuels, would be harmed if there were an adverse decision in this matter. The Court has repeatedly allowed environmental groups to intervene in challenges to EPA Clean Air Act regulations that address greenhouse gas pollution and climate change. See, e.g., Biogenic CO 2 Coal. vs. EPA, D.C. Cir. No ; West Virginia v. EPA, D.C. Cir. No ; Plant Oil Powered Diesel Fuel Sys., Inc. v. EPA, D.C. Cir. No ; Perry v. EPA, D.C. Cir. No (consolidated with Texas v. EPA, D.C. Cir. No ; Las Brisas Energy Ctr., LLC v. EPA, et al., D.C. Cir. No ; Southeastern Legal Found. v. EPA, D.C. Cir. No ; and Coal. for Responsible Regulation, Inc. v. EPA, D.C. Cir. No The Court s practice of granting intervention in such cases demonstrates that the 4

5 environmental groups have a right to defend government actions that protect their concrete procedural and substantive interests, and that such groups can offer a distinct perspective on those actions. I. The Environmental Groups Interests Will Be Impaired If Biogenic CO 2 Coalition Prevails in this Litigation. To avoid the worst impacts of climate change, the environmental groups work on behalf of their members to secure national and global rules to reduce greenhouse gases. Limiting emissions from aircraft is a critical piece of this work. Aircraft are the third largest source of greenhouse gas emissions in the U.S. transportation sector, behind only light-duty vehicles and medium- and heavy-duty trucks, 81 Fed. Reg. 54,465, and represent nearly three percent of total U.S. greenhouse gas emissions. 2 Id. at 54,466. Moreover, aircraft are one of the fastest-growing emission sources. Fuel consumption from U.S. aviation is expected to grow by 43 percent from 2010 to Id. at 54,468. Globally, fuel consumption from international aviation will increase by about 210% from 2010 to Id. Thus, without regulatory action from EPA, greenhouse gas emissions from aircraft will increase dramatically in the near future. The environmental groups have worked for over a decade to compel EPA to regulate this significant source of climate pollution. In 2007, the Center, Friends 2 EPA has not yet investigated the warming effect of other aircraft emissions such as water vapor. 81 Fed. Reg. 54,447. 5

6 of the Earth, and others petitioned EPA to conduct an endangerment finding to determine whether greenhouse gases from aircraft endanger public health and welfare, and later brought suit to force EPA to act on it. See Ctr. for Biological Diversity v. EPA, 794 F. Supp. 2d 151 (D.D.C. 2011; Ctr. for Biological Diversity v. EPA, No. 1:16-CV (D.D.C. Apr. 12, In 2008, they submitted comments on EPA s Advance Notice of Proposed Rulemaking Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354 (July 30, 2008, expressing concern, among other things, that EPA had taken no steps to regulate aircraft emissions. They also submitted comments on EPA s Draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: , 74 Fed. Reg. 10,249 (March 10, 2009, to notify EPA of shortcomings in the inventory s treatment of aviation emissions. And, as stated above, they have sued EPA twice to compel the agency to answer their petition and to promulgate and finalize an endangerment finding and emissions standards. In 2015, Sierra Club joined the Center and Friends of the Earth in submitting comments on EPA s Proposed Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare and Advance Notice of Proposed Rulemaking, 80 Fed. Reg. 37,758 (Jul. 1, In these comments, the environmental groups strongly supported EPA s proposed finding that aircraft 6

7 emissions endanger public health and welfare and urged it to finalize the rule and issue standards as required by section 231 of the Clean Air Act as soon as possible. Representatives from Sierra Club and the Center also presented live testimony supporting the aircraft endangerment finding and calling for expeditious standards for aircraft under section 231 at EPA s hearing on commercial aircraft emissions in August Although EPA still has not proposed section 231 emissions standards as required by its endangerment finding, the environmental groups are committed to continued advocacy on behalf of their members for a standard that achieves meaningful reductions of greenhouse gas emissions from aircraft, contributes to the attainment of the United States international climate commitments, and catalyzes the deployment of technology that improves aircraft efficiency and reduces fuel consumption, thereby limiting greenhouse gas emissions from this source category. Such a standard will curb the growth of atmospheric CO 2 concentrations and reduce the threats that air pollution and climate change pose to the environmental groups members and their families. Biogenic s challenge to the aircraft endangerment finding threatens the environmental groups long-standing interest in securing such regulations. Aircraft that burn biofuel combust essentially the same amount of fuel and emit essentially the same amount of CO 2, volatile organic compounds, and carbon monoxide as 7

8 aircraft that burn petroleum fuel, as well as significant amounts of nitrogen oxides and soot particles. Siegel Decl. 12, If EPA were to exclude crop-derived biofuels from the endangerment finding, as Biogenic requests, aircraft operators could rely on biofuel use rather than efficiency improvements to comply with CO 2 emissions standards. However, the use of biofuels would produce almost no reductions in the amount of CO 2, volatile organic compounds, or carbon monoxide emitted from these aircraft. Nor would it produce the same level of emission reductions of nitrogen oxides or dangerous soot particles that will be achieved through aircraft efficiency improvements, which reduce the total amount of fuel needed and thus eliminate all pollutants created by fuel combustion, regardless of that fuel s origin. The relief that the environmental groups and their members would otherwise derive from the establishment of standards to reduce aircraft emissions would thus be diminished. Invalidating the endangerment finding or requiring EPA to carve out an exemption for crop-derived fuels would also cause further procedural harm to the environmental groups, who have waited for nearly a decade to obtain the relief requested in their 2007 petition. Exclusion of crop-derived fuels would also undermine the scientific basis of the aircraft endangerment finding, as well as existing and future endangerment findings for other sources of greenhouse gases. The aircraft endangerment finding and the 2009 endangerment finding for greenhouse gases emitted by vehicles 8

9 promulgated under section 202 of the Clean Air Act, for example, are premised on the radiative forcing effect, chemical reactivity, and atmospheric lifetime of all CO 2 molecules, regardless of what material is combusted to produce them. A CO 2 molecule derived from biogenic fuel combustion has the identical warming effect as one derived from fossil fuel combustion. 81 Fed. Reg. 54,447; Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 406 (D.C. Cir Any exclusion of the former from the aircraft endangerment finding would be irreconcilable with its premise and with science, and would jeopardize such findings for many other sources of CO 2 emissions and thwart EPA s ability to regulate and limit their greenhouse gas emissions. Even if confined only to the aircraft endangerment finding, any such exclusion would leave a potentially vast amount of aircraft carbon emissions entirely outside of section 231 s reach, and would severely limit the stringency and effectiveness of any aircraft emissions standard addressing only those carbon emissions caused by fossil fuel combustion. Moreover, the environmental impacts and life-cycle carbon emissions of different crop-derived biofuels vary based on the source and methods of production, 3 so Biogenic s request for a categorical exemption of all crop-based biofuels would not only undermine the environmental groups interest in effective 3 See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Final Rule, 80 Fed. Reg. 64,661, 64,884 (Oct. 23, 2015 (Docket EPA-HQ-OAR

10 regulation of aviation GHG emissions, but would also undercut their efforts to ensure that carbon emissions from all sources are properly and accurately accounted for. Accounting for the net greenhouse gas emissions associated with biofuels, including crop-based biofuels, is complex. The environmental groups have a strong interest in accurate, science-based biofuel carbon accounting, and have participated actively in numerous rulemaking proceedings and legal challenges addressing biomass and biofuel CO 2 emissions. For example, the Center submitted extensive comments on EPA s Call for Information on greenhouse gas emissions associated with bioenergy and other biogenic sources. 75 Fed. Reg. 41,173 (July 15, The Center also successfully challenged EPA s decision to exempt, for a three-year period, biogenic CO 2 from regulation under Clean Air Act stationary source permitting programs, Ctr. for Biological Diversity v. EPA, 722 F.3d 401, and has participated actively in EPA s ongoing scientific review of a proposed carbon accounting framework. The environmental groups also continue to participate in both administrative and legal proceedings concerning biomass CO 2 accounting in the context of performance standards for new and existing power plants. See, e.g., 80 Fed. Reg. 64,510 (Oct. 23, 2015 (new source performance standards; 80 Fed. Reg. 64,662 (Oct. 23, 2015 (carbon pollution emission guidelines for existing stationary sources; 80 Fed. Reg. 64,966 (Oct. 23,

11 (proposed federal implementation plan for existing source standards; Nat l All. of Forest Owners v. EPA (D.C. Cir. No and consolidated cases (movantintervenors; Biogenic CO 2 Coal. v. EPA (D.C. Cir. No (movantintervenors. If, as a result of Biogenic s petition, EPA were to exempt crop-derived CO 2 from the aircraft endangerment finding, the environmental groups interests in ensuring accurate carbon accounting for biomass fuels would be severely undermined. As this Court has found, both fossil and biogenic CO 2 have exactly the same warming effect on the atmosphere. Ctr. for Biological Diversity v. EPA, 722 F.3d at 406 ( In layman s terms, the atmosphere makes no distinction between carbon dioxide emitted by biogenic and fossil-fuel sources.. A categorical exclusion of crop-derived biomass CO 2 from the endangerment finding would provide a powerful incentive for the use of biofuels as a method of compliance with any forthcoming aircraft emissions standard. The CO 2 resulting from biofuel combustion, however, would have the same exact warming effect on the atmosphere and thus endanger public health and welfare but simply would not be counted in calculating, setting, or enforcing a forthcoming aircraft emissions standard. 11

12 II. The Environmental Groups Have Standing to Intervene as Respondents. The environmental groups have standing to intervene in defense of EPA s aircraft endangerment finding. When a single movant satisfies the standing requirements, the Court may grant intervention to all movants. See, e.g., Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir (granting intervention to all co-applicants based on a finding for one named intervenor-applicant. This Court has held repeatedly that environmental organizations have standing to sue to protect their members from pollution that threatens and concerns those members. See, e.g., Nat. Res. Def. Council v. EPA, 755 F.3d 1010, (D.C. Cir. 2014; Ass n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, (D.C. Cir The environmental groups members have legally protected health, property, professional, recreational, and aesthetic interests that are harmed by aircraft pollution. See Anderson Decl., Ex. 4; Ross Decl., Ex. 5; Blackwelder Decl., Ex. 6. Some members who live near airports suffer from emphysema and other illnesses related to aircraft exhaust. Anderson Decl. 2, 4-7. Some members use, own, and enjoy property and natural resources and pursue professions that are harmed and threatened by climate change. Ross Decl. 8-12, 34; Blackwelder Decl Exemption of crop-derived biofuels from regulation will diminish the emissions reductions that would otherwise be achieved, extending and exacerbating the environmental groups members injuries. 12

13 Because the environmental groups and their members injur[ies] suffice[] for standing purposes, causation and redressability rationally follow[]. Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d at 316 (movant had standing to intervene and defend challenge to an agency decision favorable to its interests, because invalidation of that decision would expose it to harm. The aircraft endangerment finding is the regulatory predicate to the promulgation of standards to reduce pollution from aircraft engines. 41 U.S.C. 231(a(2(A. If Biogenic s challenge were to succeed and the endangerment finding were vacated and/or remanded, EPA s efforts to reduce this pollution would be stopped, frustrated or delayed, and the injuries suffered by the environmental groups members would be prolonged and exacerbated. A decision rejecting Biogenic s petition will redress these injuries. The pollution and climate-related injuries suffered by the environmental groups members are germane to the purposes of the environmental groups, whose core missions involve advocacy and expenditure of resources to reduce air pollution and avert the most harmful impacts of climate change. See Siegel Decl. 2-9; Fashho Decl. 3-10; Keever Decl Because Biogenic s challenge to the endangerment finding involves technical questions of climate science and carbon accounting, and the relief requested is administrative in nature, there is no 13

14 need for individual members to participate in this suit. Thus the environmental groups have standing to intervene on behalf of their members. III. This Motion Is Timely. Federal Rule of Appellate Procedure 15(d requires a motion to intervene to be filed within 30 days after the petition for review is filed. In this case, the petition was filed on October 14, This motion is being filed within 30 days of that date and is therefore timely. CONCLUSION For these reasons the Center for Biological Diversity, Friends of the Earth, and Sierra Club respectfully request that they be granted leave to intervene in support of Respondent EPA. Dated: November 14, 2016 Respectfully submitted, /s/ J. Martin Wagner Sarah H. Burt Martin Wagner Earthjustice 50 California Street, Suite 500 San Francisco, CA ( sburt@earthjustice.org mwagner@earthjustice.org Counsel for Sierra Club and Friends of the Earth 14

15 /s/ Vera Pardee Vera Pardee Kevin Bundy Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA ( Counsel for Center for Biological Diversity 15

16 RULE 26.1 DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure and D.C. Circuit Rule 26.1, movant-intervenors the Center for Biological Diversity, Friends of the Earth, and Sierra Club state that they are not-for-profit nongovernmental organizations whose missions include protection of public health and the environment and conservation of natural resources. None of the organizations has any outstanding shares or debt securities in the hands of the public, or any parent, subsidiary, or affiliate that has issued shares or debt securities to the public. Dated: November 14, 2016 /s/ J. Martin Wagner Sarah H. Burt Martin Wagner Earthjustice 50 California Street, Suite 500 San Francisco, CA ( Counsel for Sierra Club and Friends of the Earth /s/ Vera Pardee Vera Pardee Kevin Bundy Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA (

17 Counsel for Center for Biological Diversity 17

18 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rules 27(a(4 and 28(a(1, movant-intervenors the Center for Biological Diversity, Friends of the Earth, and Sierra Club submit this certificate of parties, rulings, and related cases: A. Parties and Proposed Intervenors. The parties to this petition for review are as follows: Petitioners: Biogenic CO 2 Coalition Respondents: United States Environmental Protection Agency and Gina McCarthy, Administrator, United States Environmental Protection Agency Proposed Intervenors: Center for Biological Diversity, Friends of the Earth, and Sierra Club. B. Rulings Under Review Petitioners seek review of the Final Rule of respondent United States Environmental Protection Agency published in the Federal Register at 81 Fed. Reg. 54,422 (August 15, 2016 titled Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare. C. Related Cases This case has not previously been before this Court. Counsel are not aware of any other related cases within the meaning of Circuit Rule 28(a(1(C. 18

19 Dated: November 14, 2016 /s/ J. Martin Wagner Sarah H. Burt Martin Wagner Earthjustice 50 California Street, Suite 500 San Francisco, CA ( Counsel for Sierra Club and Friends of the Earth /s/ Vera Pardee Vera Pardee Kevin Bundy Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA ( Counsel for Center for Biological Diversity 19

20 CERTIFICATE OF SERVICE I certify that on November 14, 2016, the foregoing MOTION FOR LEAVE TO INTERVENE BY THE CENTER FOR BIOLOGICAL DIVERSITY, FRIENDS OF THE EARTH AND SIERRA CLUB, RULE 26.1 DISCLOSURE STATEMENT, and CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES were served upon all registered counsel via the Court s ECF system. Dated: November 14, 2016 /s/ J. Martin Wagner Sarah H. Burt Martin Wagner Earthjustice 50 California Street, Suite 500 San Francisco, CA ( sburt@earthjustice.org mwagner@earthjustice.org Counsel for Sierra Club and Friends of the Earth 20