Full opinion text
Judgment of the Court filed by Circuit Judge RANDOLPH. Opinion filed by Circuit Judge RANDOLPH. Opinion dissenting in part and concurring in the judgment filed by Circuit Judge SENTELLE. Opinion dissenting in Nos. 03-1361, OS-1362, 03-1363, and 03-1364 filed by Circuit Judge TATEL. RANDOLPH, Circuit Judge. Petitioners are twelve states, three cities, an American territory, and numerous environmental organizations. They are opposed by the Environmental Protection Agency as respondent, and ten states and several trade associations as intervenors. The controversy is about EPA’s denial of a petition asking it to regulate carbon dioxide (C02) and other greenhouse gas emissions from new motor vehicles under § 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1). EPA concluded that it did not have statutory authority to regulate greenhouse gas emissions from motor ve-hides and that, even if it did, it would not exercise the authority at this time. 68 Fed.Reg. 52,922 (Sept. 8, 2003). I. We should say a few words about our jurisdiction under the Clean Air Act to review an EPA denial of a petition for rulemaking. Section 307(b)(1), 42 U.S.C. § 7607(b)(1), gives this court exclusive jurisdiction over “nationally applicable regulations promulgated, or final action taken, by the Administrator” under chapter 85 of the Act. The district courts, on the other hand, have jurisdiction over citizen suits to compel EPA to perform nondiscretionary acts or duties. 42 U.S.C. § 7604(a)(2); see Sierra Club v. Thomas, 828 F.2d 783, 787-92 (D.C.Cir.1987). Because EPA refused to promulgate “nationally applicable regulations” after being asked to do so, we have jurisdiction only if EPA thereby engaged in “final action.” We can be sure that its denial of the rulemaking petition was “final.” But did this constitute agency “action”? To answer that question we must consult the Administrative Procedure Act — specifically 5 U.S.C. § 551(13). The term “action” in § 307(b)(1) of the Clean Air Act, like the term “final,” carries its traditional meaning in administrative law. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001); Indep. Equip. Dealers Ass’n v. EPA 372 F.3d 420, 428 (D.C.Cir.2004); Sierra Club v. Gorsuch, 715 F.2d 653, 656-57 (D.C.Cir.1983). Section 551(13) of the APA defines “agency action” as “the whole or a part of an agency rule, order, licen'se, sanction, relief, or the equivalent or denial thereof, or failure to act” (italics added). While § 307 of the Clean Air Act makes several APA provisions inapplicable— namely, 5 U.S.C. §§ 553-557 & 706 — APA § 551 is not among them. EPA’s denial of the rulemaking petition was therefore “final action,” and since the petition sought regulations national in scope, § 307(b)(1) confers jurisdiction on this court to hear these consolidated cases. Another, related, point needs to be mentioned. Several of the petitions for judicial review treated a memorandum of EPA’s General Counsel, Robert Fabricant, as “final action taken, by the Administrator” under § 307(b)(1). The memorandum, dated August 28, 2003, and addressed to the EPA Administrator, was entitled “EPA’s Authority to Impose Mandatory Controls to Address Global Climate Change under the Clean Air Act.” The General Counsel, after analyzing § 202(a)(1) of the Clean Air Act, and other legislative and executive actions, stated his belief that the Act “does not authorize regulation to address global climate change.” He therefore withdrew a contrary memorandum issued in 1998 by one of his predecessors. The Fabricant memorandum, consisting of legal advice to the EPA Administrator, did not in itself constitute “final action” of the Administrator. To be sure, the Administrator adopted the “General Counsel’s opinion” and relied on its analysis as one of the alternative grounds for rejecting the rulemaking petition. See 68 Fed.Reg. at 52,925. The Administrator’s explanation incorporated many of the memorandum’s passages verbatim, rephrased and reordered others, and expanded on the General Counsel’s reasoning. Still, it is the Administrator’s denial of the rulemaking petition, with the accompanying explanation, that represents the “final action” of the Administrator subject to judicial review under § 307(b)(1). The significance of the General Counsel’s opinion, as set forth in his memorandum, is the Administrator’s reliance on his reasoning in deciding the matter now before us. There is an additional jurisdictional issue presented, but not under the Clean Air Act." EPA claims that petitioners lack standing under Article III of the Constitution. Standing exists only if the complainant has suffered an injury in fact, fairly traceable to the challenged action, and likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). EPA’s argument is that petitioners have not “adequately demonstrated” two elements of standing: that their alleged injuries were “caused by EPA’s decision not to regulate emissions of greenhouse gases from mobile sources”; and that their injuries “can be redressed by a decision in them favor” by this court. Brief for Respondent at 16. In anticipation of this argument, petitioners filed two volumes of declarations with the court, some containing lengthy exhibits. The declarations, from scientists, engineers, state officials, homeowners, users of the nation’s recreational resources, and other individuals, predict catastrophic consequences from global warming caused by greenhouse gases, including loss of or damage to state and private property, frequent intense storm surge floods, and increased health care costs. Brief for Petitioners at 2-4. For the causation and redressability aspects of standing, petitioners cite two of their declarations. One, from a climatologist, states that reductions in C02 and other greenhouse gases from vehicles in the United States would alone have a meaningful impact and would “delay and moderate many of the adverse impacts of global warming.” He adds that if EPA took action to reduce such emissions, other countries would likely follow suit. The climatologist bases his predictions about future climate change on climate models and on “quantitative scenarios generated by the IPCC” — the Intergovernmental Panel on Climate Change, established in 1988 by the United Nations and the World Meteorological Organization. The other declaration is from a mechanical engineer. He states that, on the basis of his experience with controlling other pollutants, there is “no doubt that establishing emissions standards for pollutants that contribute to global warming would lead to investment in developing improved technologies to reduce those emissions from motor vehicles, and that successful technologies would gradually be mandated by other countries around the world.” We have held that, to establish standing, a petitioner challenging agency action has the same burden of production as “a plaintiff moving for summary judgment in the district court: it must support each element of its claim to standing ‘by affidavit or other evidence.’ ” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C.Cir.2002) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). Petitioners’ declarations do “support each element” of standing. But supporting an allegation is one thing; proving an allegation is quite another. Lujan holds that when a plaintiffs standing is challenged in a motion for summary judgment, the plaintiff “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed. Rule Civ. Proc. 56(e), which for purposes of the . summary judgment motion will be taken as true.” 504 U.S. at 561, 112 S.Ct. 2130. If we were to analogize the situation here to one in which EPA filed such a summary judgment motion, we would conclude that petitioners had submitted enough evidence raising genuine issues of material fact to defeat the motion. See Fed. R. Civ. P. 56(c). But Lujan goes on to hold that at “the final stage” the evidence plaintiff presented at summary judgment “(if controverted) must be ‘supported adequately by the evidence adduced at trial.’ ” 504 U.S. at 561, 112 S.Ct. 2130 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n. 31, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)). One might say that in this case we are at the “final stage.” But the analogy is not entirely apt. As an appellate court we do not conduct evidentiary hearings in order to make findings of fact. This is why, when Sierra Club spoke of “other evidence” relating to standing, the court had in mind evidence presented to the "agency. 292 F.3d at 899. Here, the administrative record contains a wealth of such “other evidence,” and some of it contradicts petitioners’ claim that greenhouse gas emissions from new motor vehicles have caused or will cause a significant change in the global climate. That is partly why EPA decided not to regulate at this time. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), instructs federal courts to resolve Article III standing questions before proceeding to the merits of a case. The combination of Lujan, Steel Co., and the factual overlap of the standing issues with EPA’s justifications for not regulating greenhouse gases present us with three options. The first is to refer the standing issues to a special master for a factual determination. This would be, as one commentator has suggested, “folly.” 13A Chaeles A. Weight et al., Federal PRACTICE AND PROCEDURE 2d § 3531.15, at 101 (1984). Such a proceeding would largely duplicate the proceedings on the rulemaking petition and to no good end. Another option would be to remand to EPA for a factual determination of causation and redressability. That too would make no' sense. For one thing, judgments about standing are the responsibility of the federal courts. For another, EPA has already reached a decision about the state of the evidence regarding global warming from greenhouse gases. The third option is to proceed to the merits with respect to EPA’s alternative decision not to regulate on the grounds, among others, that the effect of greenhouse gases on climate is unclear and that models used to predict climate change might not be accurate. We have decided to follow the third course. Steel Co. endorses this approach with respect to questions of statutory standing. The Court explained that, “the merits inquiry and the statutory standing inquiry often overlap” and “are sometimes identical, so that it would be exceedingly artificial to draw a distinction between the two.” 523 U.S. at 97 n. 2, 118 S.Ct. 1003. The Court’s distinction of Article III standing cases rested on the premise that there would be no such overlap and that the issue of Article III standing would be entirely separate from the merits. Id. The Court did not say what the proper order of decision should be when, as in this case, that premise does not hold. In this highly unusual circumstance — encountered for the first time in this courb — we will follow the statutory standing cases. We will therefore assume arguendo that EPA has statutory authority to regulate greenhouse gases from new motor vehicles. The question we address is whether EPA properly declined to exercise that authority. II. Greenhouse gases trap energy, much like the glass panels of a greenhouse. The earth’s surface is warmed by absorbing solar energy (visible light). The earth, in turn, radiates infrared energy (heat) back into space. A portion of the infrared radiation is trapped by greenhouse gas molecules, resulting in additional warming of the lower atmosphere and the earth’s surface. This “greenhouse effect” is a natural phenomenon, without which the planet would be significantly colder and life as we know it would not be possible. EPA, Global Warming — Climate, at http://yo-semite.epa.gov/oar/globalwarming.nsf/eon-tent/climate.html. Petitioners sought to have EPA regulate, under § 202(a)(1) of the Clean Air Act, carbon dioxide (C02), and three other greenhouse gases: methane (CH4), nitrous oxide (N20), and hydrofluorocarbons (HFCs). In response to EPA’s request for public comments on the 1999 petition for rulemaking, the agency received nearly 50,000 submissions. 68 Fed.Reg. at 52,-924. Most were short expressions of support for the petition; many were nearly identical. Id. The comment period closed in May 2001. In the same month, the White House requested the National Academy of Sciences to assist the Administration in its review of climate change policy. The Academy “is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research ....” National ReseaRch Council, Climate Change Soience: An Analysis of Some of the Key Questions, preface (2001). Under its congressional charter, issued in 1863, the Academy has a mandate to advise the federal government on scientific and technical matters when requested. The Academy’s principal operating agency for providing such advice is its National Research Council. Id. In denying the rulemaking petition, EPA found that the scientific comments petitioners and others submitted' rested on information already in the public domain and did not add significantly to the body of knowledge available to the National Research Council when it prepared the report cited above. Since none of the comments caused EPA to question the Council’s report, EPA decided to rely on the Council’s “objective and independent assessment of the relevant science.” 68 Fed.Reg. at 52,930. The National Research Council concluded that “a causal linkage” between greenhouse gas emissions and global warming “cannot be unequivocally established.” National Researoh Counoil, Climate Change Scienoe, at 17. The earth regularly experiences climate cycles of global cooling, such as an ice age, followed by periods of global warming. Id. at 7. Global temperatures have risen since the industrial revolution, as have atmospheric levels of carbon dioxide. But an increase in carbon dioxide levels-is not always accompanied by a corresponding rise in global temperatures. For example, although carbon dioxide levels increased steadily during the twentieth century, global temperatures decreased between 1946 and 1975. Id. at 16. Considering this and other data, the National Research Council concluded that “there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of greenhouse gases.” Id. at 1. This uncertainty is compounded by the possibility for error inherent in the assumptions necessary ' to predict future climate change. And, as the National Research Council noted, past assumptions about effects of future greenhouse gas emissions have proven to be erroneously high. Id. at 19. Relying on Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.1976) (en banc), petitioners challenge EPA’s decision to forego rule-making “[ujntil more is understood about the causes, extent and significance of climate change and the potential options for addressing it.” 68 Fed.Reg. at 52,931. In our view Ethyl supports EPA, not petitioners. Section 202(a)(1) directs the Administrator to regulate emissions that “in his judgment” “may reasonably be anticipated to endanger public health or welfare.” Section 202(a)(1) was not at issue in Ethyl; the court mentioned an earlier version of that provision, in a footnote, only by way of analogy. 541 F.2d at 20 n. 37. But what the court had to say about § 202(a)(1) is instructive. In requiring the EPA Administrator to make a threshold “judgment” about whether to regulate, § 202(a)(1) gives the Administrator considerable discretion. Id. Congress does not require the Administrator to exercise his discretion solely on the basis of his assessment of scientific evidence. Id. at 20. What the Ethyl court called “policy judgments” also may be taken into account. By this the court meant the sort of policy judgments Congress makes when it decides whether to enact legislation regulating a particular area. Id. at 26. The EPA Administrator’s analysis, although it did not mention Ethyl, is entirely consistent with the case. In addition to the scientific uncertainty about the causal effects of greenhouse gases on the future climate of the earth, the Administrator relied upon many “policy” considerations that, in his judgment, warranted regulatory forbearance at this time. 68 Fed.Reg. at 52,929. New motor vehicles are but one of many sources of greenhouse gas emissions; promulgating regulations under § 202 would “result in an inefficient, piecemeal approach to the climate change issue.” 68 Fed.Reg. at 52,931. The Administrator expressed concern that unilateral regulation of U.S. motor vehicle emissions could weaken efforts to persuade developing countries to reduce the intensity of greenhouse gases thrown off by their economies. Id. Ongoing research into scientific uncertainties and the Administration’s programs to address climate change — including voluntary emission reduction programs and initiatives with private entities to develop new technology — also played a role in the Administrator’s decision not to regulate. 68 Fed.Reg. at 52,931-33. The Administrator pointed to efforts to promote “fuel cell and hybrid vehicles” and ongoing efforts to develop “hydrogen as a primary fuel for cars and trucks.” 68 Fed.Reg. at 52,931. The Administrator also addressed the matter of remedies. Petitioners offered two ways to reduce C02 from new motor vehicles: reduce gasoline consumption and improve tire performance. As to the first, the Department of Transportation — the agency in charge of fuel efficiency standards — recently issued new standards requiring greater fuel economy, as a result of which millions of metric tons of C02 will never reach the stratosphere. Id. As to tire efficiency, EPA doubted its authority to regulate this subject as an “emission” of an air pollutant. Id. “With respect to the other [greenhouse gases]— CH4, N20, and HFCs — petitioners make no suggestion as to how those emissions might be reduced from motor vehicles.” Id. It is therefore not accurate to say, as petitioners do, that the EPA Administrator’s refusal to regulate rested entirely on scientific uncertainty, or that EPA’s decision represented an “open-ended invocation of scientific uncertainty to justify refusing to regulate,” Brief for Petitioners at 51. A “determination of endangerment to public health,” the court said in Ethyl, “is necessarily a question of policy that is to be based on an assessment of risks and that should not be bound by either the procedural or the substantive rigor proper for questions of fact.” Ethyl, 541 F.2d at 24. And as we have held, a reviewing court “will uphold agency conclusions based on policy judgments” “when an agency must resolve issues ‘on the frontiers of scientific knowledge.’ ” Envtl. Def. Fund v. EPA, 598 F.2d 62, 82 (D.C.Cir.1978). We thus hold that the EPA Administrator properly exercised his discretion under § 202(a)(1) in denying the petition for rule-making. The petitions for review in Nos. 03-1365, 03-1366, 03-1367, and 03-1368 are dismissed, and the petitions for review in Nos. 03-1361, 03-1362, 03-1363, and OS-1364 are denied. So ordered. . Relying on FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), EPA concluded that in light of the enormous economic and political consequences of regulating greenhouse gas emissions, Congress would have been far more specific if it had intended to authorize EPA to regulate the subject under § 202(a)(1) of the Clean Air Act. 58 Fed.Reg. at 52,928. We express no view on the validity of EPA's analysis. . The rulemaking request and the papers submitted to this court focus on the effects of C02. . “As the NRC explained, predicting future . climate change necessarily involves a complex web of economic and physical factors including: Our 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); changes 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). The NRC noted, in particular, that '[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood’ (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs.” 68 Fed.Reg. at 52,930.
SENTELLE, Circuit Judge, dissenting in part and concurring in the judgment. As the majority’s opinion observes, courts of the United States must resolve jurisdictional questions, including “Article III standing questions, before proceeding to the merits of a case.” Opinion of Judge Randolph at 53 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). As the majority further observes, “[sjtanding exists only if the complainant has suffered an injury in fact, fairly traceable to the challenged action, and likely to be redressed by a favorable decision.” Id. at 54 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). EPA argues “that petitioners have not ‘adequately demonstrated’ two elements of standing: that their alleged injuries were ‘caused by EPA’s decision not to regulate emissions of greenhouse gases from mobile sources’; and that their injuries ‘can be redressed by a decision in their favor’ by this court.” Id. at 54 (quoting Brief for Respondent at 16). While I respect the majority’s thorough and accurate history of the • precedents on the standing question, after consulting the same authorities I have come to a different conclusion. I conclude that EPA is correct in its assertion that the petitioners have not demonstrated the element of injury necessary to establish standing under Article III. I. Injury As the Supreme Court has stated quite directly and succinctly: It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. Ex Parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937) (citing Tyler v. Judges, 179 U.S. 405, 406, 21 S.Ct. 206, 45 L.Ed. 252 (1900); Southern Ry. Co. v. King, 217 U.S. 524, 534, 30 S.Ct. 594, 54 L.Ed. 868 (1910); Neuman v. Frizzell, 238 U.S. 537, 549, 550, 35 S.Ct. 881, 59 L.Ed. 1446 (1915); Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 66 L.Ed. 499 (1922); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). Thus, the courts “have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does' the public at large — -does not state an Article III case or controversy.” Lujan, 504 U.S. at 573, 112 S.Ct. 2130. Or, as the Supreme Court has also put it, to establish Article III standing a “plaintiff must have suffered an ‘injury in fact’ an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (emphasis added; citations and internal quotation marks omitted). Most tellingly, the Supreme Court has specifically declared that “[b]y particularized, we mean that the injury must affect the plaintiff in a personal and individual way.” Id. at n. 1, 112 S.Ct. 2130. In the case before us, that is what the petitioners have not established. After plowing through their reams of affidavits and arguments, I am left with the unshaken conviction that they have alleged and shown no harm particularized to themselves. As we have observed in the context of determining standing even in a procedural case, in which the standards are perhaps more relaxed than in other cases, “in order to show that the interest asserted is more than a mere ‘general interest ... common to all members of the public,’ the plaintiffs must show that the government act ... will cause a distinct risk to a particularized interest of the plaintiff.” Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996). Petitioners’ allegations and affidavits, and petitioners’ argument and briefs, are all well made and sincere. Nonetheless, even in the light most favorable to the petitioners, in the end they come down to this: Emission of certain gases that the EPA is not regulating may cause an increase in the temperature of the earth — a phenomenon known as “global warming.” This is harmful to humanity at large. Petitioners are or represent segments of humanity at large. This would appear to me to be neither more nor less than the sort of general harm eschewed as insufficient to make out an Article III controversy by the Supreme Court and lower courts. The courts under Article III stand ready to adjudicate and redress the particularized injuries of plaintiffs, when all other elements of jurisdiction are present. But “when the plaintiff is not himself the object of the government action or inaction he challenges, [although] standing is not precluded, ... it is ordinarily ‘substantially more difficult’ to establish.” Lujan, 504 U.S. at 562, 112 S.Ct. 2130 (citations omitted). This time, in my view, it is not only difficult, it is impossible. The generalized public good that petitioners seek is the thing of legislatures and presidents, not of courts. As we stated in another environmental case, to ascertain standing courts must ask the question, did the “underlying governmental act [or inaction] demonstrably increase[] some specific risk of environmental harm to the interest of the plaintiff”? Florida Audubon Soc’y, 94 F.3d at 667 (emphasis in original). Here, as in Florida Audubon, the alleged harm is not particularized, not specific, and in my view, not justiciable. Therefore, I would reject and dismiss all the petitions before us. This is not to say that petitioners’ complaints are wrong. This is not to say they are without redress. This is to say only that the question is not justiciable in its present form with its present champions in the present forum. A case such as this, in which plaintiffs lack particularized injury is particularly recommended to the Executive Branch and the Congress. Because plaintiffs’ claimed injury is common to all members of the public, the decision whether or not to regulate is a policy call requiring a weighing of costs against the likelihood of success, best made by the democratic branches taking into account the interests of the public at large. There are two other branches of government. It is to those other branches that the petitioners should repair. II. Concurrence in the Judgment My conclusion leaves a slight problem. No problem exists as to the petitions for review of nonfinal action which Judge Randolph’s opinion orders dismissed. I would dismiss those as well, on either his ground or mine. The problem vexes only as to petitions for review in Nos. 03-1361, OS-1362, 03-1363, and 03-1364, which Judge Randolph would deny and Judge Tatel would grant. I would dismiss those as well, as I would hold that we have no jurisdiction to either deny or grant them. How then are we to reach a judgment? The Supreme Court has suggested a way, or at least Justices of the Supreme Court have. Most recently, in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004), Justice Souter, joined by Justice Ginsburg, differed from the plurality in a fragmented opinion adjudicating the due process rights of alleged enemy combatants held at Guantanamo Bay by the United States military. Justices Souter and Ginsburg would have vacated the judgment of the Court of Appeals and remanded for proceedings consistent with their view that the government had failed to justify holding the petitioner. However, because that view did not command a majority of the court, and because of “the need to give practical effect to the conclusion of [a majority] of the court rejecting the government’s position,” Justice Souter (joined by Justice Ginsburg) joined with the plurality “in ordering a remand on terms closest to those I would impose.” 124 S.Ct. at 2660 (Souter, J., concurring). I will take a similar course here. The majority today holds that we have . jurisdiction to render judgment on four of the petitions before us. Although I disagree, I will accept the decision of the majority as dictating the law of this case. Having so accepted the law of the case, I will then join Judge Randolph in the issuance of a judgment closest to that which I myself would issue. With that explanation, I join in the decision to order denying the four petitions from final action of the Environmental Protection Agency.
TATEL, Circuit Judge, dissenting in Nos. 03-1361, 03-1362, 03-1363, and 03-1364. Petitioners claim that motor vehicle emissions of greenhouse gases contribute to global warming and that global warming in turn is causing a host of serious problems, likely including increased flash flood potential in the Appalachians, degraded water quality and reduced water supply in the Great Lakes, sea-ice melting and permafrost thawing in Alaska, reduced summer snow-pack runoff in the Rockies, extreme water resource fluctuations in Hawaii, and rising sea levels combined with higher storm surges along the coasts of Puerto Rico, the Virgin Islands, and some eastern states. See Pet’rs Br. at 8-10- (summarizing U.S. Dep’t of State, U.S. Climate Action Report 2002, at 110). Concerned about such problems, petitioners asked EPA to regulate these emissions under Clean Air Act section 202(a)(1), which provides: “The Administrator shall by regulation prescribe ... standards applicable to the emission of any air pollutant from ... new motor vehicles ... which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger püblic health or welfare.” 42 U.S.C. § 7521(a)(1). EPA denied the petition on two grounds — that it lacked statutory authority to regulate such emissions and that even given such authority it would not exercise it — and petitioners sought review in this court. My colleagues agree that the petitions for review should not be granted, but they do so for quite different reasons. Judge Sentelle thinks that petitioners lack standing and would dismiss the petitions for that reason. Judge Randolph does not resolve whether petitioners have standing and would deny the petitions based on one of EPA’s two given reasons. I have yet a different view. Unlike Judge Sentelle, I think at least one petitioner has standing, as I explain in Part II. Unlike Judge Randolph, I think EPA’s order cannot be sustained on the merits. EPA’s first given reason — that it lacks statutory authority to regulate emissions based on their contribution to welfare-endangering climate change, 68 Fed.Reg. 52,-922, 52,925-29 (Sept. 8, 2003) — fails, as I explain in Part III, because the statute clearly gives EPA authority to regulate “any air pollutant” that may endanger welfare, 42 U.S.C. § 7521(a)(1), with “air pollutant” defined elsewhere in the statute as “including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air,” id. § 7602(g). EPA’s second given reason — the one accepted by Judge Randolph' — is that even if it has statutory authority, it nonetheless “believes” that “it is inappropriate to regulate [greenhouse gas] emissions from motor vehicles” due to various policy reasons. As I explain in Part IV, however, none of these policy reasons relates to the statutory standard — “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” id: § 7521(a)(1) — and the Clean Air Act gives the Administrator no discretion to withhold regulation for such reasons. In short, EPA has failed to offer a lawful explanation for its decision. I would accordingly grant the petitions for review and send the matter back to EPA either to make an endangerment finding or to come up with a reasoned basis for refusing to do so in light of the statutory standard. I. “Greenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise.” So begins page one of the National Research Council’s 2001 report, Climate Change Science: An Analysis of Some of the Key Questions (“NRC Report”), the scientific document EPA “reified]” on in denying the petition for rulemaking, see 68 Fed.Reg. at 52,930. As the NRC Report explains, greenhouse gases (GHGs) trap heat radiated from earth, and their atmospheric concentrations are increasing “as a result of human activities.” NRC Rep. at 1, 9. For example, “[h]uman activities ... responsible for the increase” in atmospheric concentrations of carbon dioxide (C02) — the chief GHG — include “[t]he primary source, fossil fuel burning,” as well as “[t]ropical deforestation.” Id. at 2; see also id. at 10, 12. The resulting increases are striking. In the 400,000 years prior to the Industrial Revolution, atmospheric C02 concentrations “typically ranged between 190” parts per million by volume (ppmv) “during the ice ages to near 280 ppmv during the warmer ‘interglacial’ periods.” Id. at 11. By 1958, atmospheric concentrations were 315 ppmv (12.5% above the pre-Industrial-Revolution high of 280 ppmv), and by 2000 they had risen to 370 ppmv (17% above the 1958 level). Id. at 10. Similarly, prior to the Industrial Revolution, atmospheric concentrations of methane (CH4), another GHG, ranged from .3 ppmv to .7 ppmv; now, “current values are around 1.77 ppmv.” Id. at 11. Atmospheric concentrations of other GHGs like nitrous oxide (N20) have also risen. Id. at 2. Notably, GHGs not only disperse throughout the lower atmosphere, but also linger there at length: “Reductions in the atmospheric concentrations of these gases following possible lowered emissions rates in the future will stretch out over decades for methane, and centuries and longer for carbon dioxide and nitrous oxide.” Id. at 10. Increased GHG atmospheric concentrations are causing “climate forcings” — “imposed perturbation^] of Earth’s energy balance” measured in terms of units of watts per square meter (W/m2). Id. at 6. Drawing from another report — an Intergovernmental Panel on Climate Change (IPCC) report with which the NRC “generally agrees,” id. at 1 — the NRC Report quantifies these climate forcings. C02, “probably the most important climate forcing agent today,” has “caus[ed] an increased forcing of about 1.4 W/m2” between 1750 and 2000. Id. at 12, 13. More lies ahead: C02 climate forcing is likely to become more dominant in the future as fossil fuel use continues. If fossil fuels continue to be used at the current rate, the added C02 forcing in 50 years will be about 1 W/m2. If fossil fuel use increases by 1-1.5% per year for 50 years, the added C02 forcing instead will be about 2 W/m2. Id. at 12-13. Thus, by 2050, the total C02 forcing since 1750 could be from 2.4-3.4 W/m2. The other GHGs “together cause a climate forcing approximately equal to that of C02,” or more if one includes certain indirect effects of increased CH4 emissions. Id. at 13. While atmospheric GHG increases are not the only causes of climate forcings — for example, changes in solar irradiance and in concentrations of tropospheric ozone also appear to have caused climate forcings, and atmospheric concentration changes in aerosols like sulphates appear to have caused negative (cooling) climate forcings — all other forc-ings are less certain and appear less substantial than those caused by GHGs. See id. The extent to which these forcings affect average- global temperatures depends on the climate’s sensitivity, a condition that is not precisely known. Id. at 7. “Well-documented climate changes ... imply that the climate sensitivity is near ... 3°C” (5.4°F) for a 4 W/m2 forcing — a number a bit above the total C02 forcing predicted by 2050 — “but with a range from 1.5°C to 4.5°C (2.7 to 8.1°F).” Id. Turning to the practical effects of GHG climate forcings, the NRC Report observes that a “diverse array of evidence points to a warming of global surface temperatures.” Id. at 16. Though the “rate of warming has not been uniform,” measurements “indicate that global mean surface air temperature warmed by about .4-.8°C (.7-1.5°F) during the 20th century.” Id. The report notes that “[t]he Northern Hemisphere as a whole experienced a slight cooling from 1946-75,” — a statement Judge Randolph erroneously reads for the proposition that “global temperatures decreased between 1946 and 1975,” op. of Randolph, J., at 57 (emphasis added)— possibly due to the widespread burning of high sulfur coal and resultant sulfate emissions or to changes in ocean circulation in the Atlantic. NRC Rep. at 16. The report also observes that, as the IPCC report points out, the “warming of the Northern Hemisphere during the 20th century is likely to have been the largest of any century in the past thousand years.” Id. In evaluating the relationship between GHG atmospheric increases and twentieth-century temperature increases, the NRC Report states that due to the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of various forcing agents (and particularly aerosols), a causal linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. Id. at 17. Although Judge Randolph seizes on this uncertainty — and portrays it as applying to global warming generally rather than to twentieth-century warming, see op. of Randolph, J., at 56 — read in context, it appears little more than an application of the principle that, as the NRC Report later puts it, “[c]onfidence limits and probabilistic information, with their basis, should always be considered as an integral part of the information that climate scientists provide to policy and decision makers,” NRC Rep. at 22. Indeed, the NRC Report goes on to state that the “fact that the magnitude of the observed warming is large compared to natural variability as simulated in climate models is suggestive of such a linkage” between GHG atmospheric concentration increases and twentieth-century temperature increases, though not “proof’ of it. Id. at 17. The NRC Report further suggests that uncertainties about future warming relate chiefly to its scope. Climate change simulations for the period of 1990 to 2100 based on IPCC emissions scenarios yield a globally-averaged surface temperature increase by the end of the century of 1.4 to 5.8°C (2.5 to 10.4°F) relative to 1990. The wide range of uncertainty in these estimates reflects both the different assumptions about future concentrations of greenhouse gases and aerosols in the various scenarios considered by the IPCC and the differing climate sensitivities of the various climate models used in the simulations. The range of climate sensitivities implied by these predictions is generally consistent with previously reported values. Id. at 3. These numbers, of course, are averages: the “predicted warming is higher over higher latitudes than low latitudes, especially during winter and spring, and larger over land than over sea.” Id. With this warming will come secondary effects. Predicted impacts in the United States include increased likelihood of drought, greater heat stress in urban areas, rising sea levels, and disruption to many U.S. ecosystems. Id. at 19-20. The likelihood and scope of these impacts vary depending on the magnitude of future temperature increases. See id.; see also id. at 4. Because the “predicted temperature increase is sensitive to assumptions concerning future concentrations of greenhouse gases and aerosols,” which in turn depend on future emissions, “national policy decisions made now and in the longer-term future will influence the extent of any damage suffered by vulnerable human populations and ecosystems later in this century.” Id. at 1. II. EPA claims petitioners lack standing to bring this case. To reach the merits, however, we need determine only that one petitioner has standing. See, e.g., Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C.Cir.2004). In my view, declarations submitted by petitioners clearly establish that the Commonwealth of Massachusetts has satisfied each element of Article III standing' — injury, causation, and redressability, see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Among other things, Massachusetts claims injury — the “substantial probability that local conditions will be adversely affected,” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002) (internal quotation marks omitted) — resulting from rising sea levels. The declaration of Paul Kirshen, a professor at Tufts University’s Civil and Environmental Engineering Department, details how projected rises in sea levels in the metropolitan Boston area would lead both to permanent loss of coastal land and to “more frequent and severe storm surge flooding events along the coast.” Kirshen Decl. ¶¶ 7-8; see also Jacqz Decl. ¶¶ 8-11. “[I]f sea level rises .3 meters (11.8 inches) — which is near the lower end of the likely range — that would mean the future 10-year flood surge elevation would be at the level of the current 100-year flood elevation and the future 100-year flood surge elevation would be at that of the current 500-year flood elevation.” Kir-shen Decl. ¶ 10. As other declarations make clear, such changes would lead to serious loss of and damage to Massachusetts’s coastal property. See Hoogeboom Decl. ¶¶ 6-7; Jaeqz Decl. ¶ 11. Given these declarations, I disagree that no petitioner suffers “harm particularized to” itself. See op. of Sentelle, J., at 60. The Commonwealth of Massachusetts claims an injury — namely, loss of land within -its sovereign boundaries — that “affects [it] in a personal and individual way,” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. This loss (along with increased flood damage to the Massachusetts coast) undeniably harms the Commonwealth in a way that it harms no other state. Other states may face their own particular problems stemming from the same global warming — Maine may suffer from loss of Maine coastal land and New Mexico may suffer from reduced' water supply — but these problems are different from the injuries Massachusetts faces. Massachusetts’s harm is thus a far cry from the kind of generalized harm that the Supreme Court has found inadequate- to support Article III standing, i.e., “harm to [its] and every citizen’s interest in proper application of the Constitution and laws,” or put another way “relief that no more directly and tangibly benefits [it] than it does the public at large,” id. at 573-74, 112 S.Ct. 2130. As to causation, the declaration of Michael MacCracken, the senior scientist on global change at the Office of the U.S. Global Change Research Program from 1993-2002, states that global warming is causing sea level increases like those in Massachusetts. “[T]he warming of the oceans and the increased melting of many mountain glaciers around the world ... were the major contributions to the rise in global sea level by 10-20 cm (4 to 8 inches) observed over the past century”' and the “environmental impacts of projected global warming will include ... an increase in sea level at an average rate of about .5 to 3.5 inches per decade, reaching 4-35 inches by the end of the century (with the most likely value being, in my expert opinion, near or above the middle of this range).” MacCracken Decl. ¶ 5(c)-(d); see also id. ¶ 23. MacCracken further states that global warming is chiefly triggered by human-caused GHG emissions, see id. ¶¶ 5(a)-(b), 12-19, with “the U.S. transportation sector (mainly automobiles) ... responsible for about 7% of global fossil fuel emissions,” id. ¶ 31. Finally, as to redressability, MacCracken emphasizes that “[ajchievable reductions in emissions of C02 and other [GHGs] from U.S. motor vehicles would ... delay and moderate many of the adverse impacts of global warming.” Id. ¶ 5(e). Elaborating, he states that “[g]iv-en the large emissions of C02 and . other [GHGs] from motor vehicles in the United States and the lead time needed to economically introduce changes into the motor vehicle fleet, emission reductions must be initiated in the near future in order to significantly reduce and delay the impacts of global warming.” Id. ¶31. Because the extent of damage to the Massachusetts coastline depends on the magnitude of the rise in sea level, a reduction in this projected" adverse consequence of global warming would partially redress Massachusetts's injury. See Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 310 (D.C.Cir.2001) (holding' that a petitioner need only demonstrate it would receive “at least some” relief to' establish re-dressability). Nowhere disputing this proposition, EPA instead claims that Mac-Cracken’s conclusion depends upon the assumption that other countries will follow the U.S. lead and regulate motor vehicle GHG emissions. Even were this reading of the declaration correct — a dubious premise given MacCracken’s unqualified language focusing on U.S. emissions reduction — the uncontested declaration of Michael Walsh, a consultant on-motor vehicle pollution technology and at one point director of EPA’s motor vehicle pollution control efforts, provides a basis for concluding that other countries would come to mandate technology developed in response to U.S. regulation. Describing how in the past other countries have come to require such technology, Walsh concludes that “[o]n the basis of my experience with the control of other pollutants ... I have no doubt that establishing emissions standards for pollutants that contribute to global warming would lead to investment in developing improved technologies to reduce those emissions from motor vehicles, and that successful technologies would gradually be mandated by other countries around the world.” Walsh Decl. ¶¶7-8,.10. Judge Randolph, accepting that the declarations “do ‘support each element’ of standing,” nonetheless questions whether this is enough. See op. of Randolph, J., at 55 (quoting Sierra Club, 292 F.3d at 899). Specifically, he believes we confront a question left open in our Sierra Club decision. In that case, we held that “[t]he petitioner’s burden of production in the court of appeals is ... the same as that of a plaintiff moving for summary judgment in the district court: it must support each element of its claim to standing ‘by affidavit or other evidence.’ ” 292 F.3d at 899 (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). But we never explicitly addressed what happens if the agency submits evidence that contradicts that of petitioners. Do we resolve factual disputes in petitioners’ favor, return the case to the agency for fact-finding, send the matter to a special master, or pursue some other course of action? The issue is fascinating, but we need not confront it. Given that the burdens of production here are comparable to those at summary judgment, see 292 F.3d at 899, if EPA wants to challenge the facts petitioners have set forth in their affidavits, it has an obligation to respond to the petitioners by “citing any record evidence relevant to ... standing and, if necessary, appending to its filing additional affidavits or other evidence,” see id. at 900-01. EPA makes no such challenge. Indeed, if anything, the order under review appears to support petitioners’ standing. While, drawing on the NRC Report, EPA observes that “there continue to be important uncertainties in our understanding of the factors that may affect future climate change,” 68 Fed.Reg. at 52,930, EPA never denies the “substantial probability,” see Sierra Club, 292 F.3d at 898, that injurious global warming is occurring. Quite to the contrary, EPA “agree[s] with the President that ‘we must address the issue of global climate change.’ ” 68 Fed.Reg. at 52,929 (quoting presidential statement of Feb. 14, 2002). As to causation and redressability, the petition denial emphasizes that “EPA is also working to encourage voluntary GHG emission reductions from the transportation sector” and that “the Administration’s global climate change policy includes promoting the development of fuel-efficient motor vehicles and trucks, researching options for producing cleaner fuels, and implementing programs to improve energy efficiency.” Id. at 52,932; see also NRC Rep. at 1 (noting that “national policy decisions made now ... will influence the extent of any damage” caused by global warming). EPA would presumably not bother with such efforts if it thought emissions reductions would have no discernable impact on future global warming. Because EPA nowhere challenges petitioners’ declarations, I see no reason to consider what we would do if it had done so. Thus, unlike Judge Randolph, I think it unnecessary to address whether we can carve out exceptions to the Supreme Court’s seemingly unqualified holding that “a merits question cannot be given priority over an Article III question,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The Commonwealth of Massachusetts hás adequately demonstrated its standing, and our jurisdiction is plain. III. As to the merits, the threshold question is this: does the Clean Air Act authorize EPA to regulate emissions based on their effects on global climate? Taking a constricted view, EPA insists it has no authority to regulate GHG emissions even if they contribute to substantial and harmful global warming. By contrast, petitioners claim that Congress has plainly given EPA the authority it says it lacks. “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The. inquiry “begin[s], as always, with the plain language of the statute in question.” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 297 (D.C.Cir.2003) (quoting Citizens Coal Council v. Norton, 330 F.3d 478, 482 (D.C.Cir.2003)). CAA section 202(a)(1), added by Congress in 1965 and amended in 1970 and 1977, provides, The Administrator shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. § 7521(a)(1). This language plainly authorizes regulation of (1) any air pollutants emitted from motor vehicles that (2) in the Administrator’s judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. EPA’s claimed lack of authority relates to the first of these two elements. According to EPA, GHGs like C02, CH4, N20, and hydrofluo-rocarbons (HFCs) “are not air pollutants.” 68 Fed.Reg. at 52,928. Congress, however, left EPA little discretion in determining what are “air pollutants.” Added in 1970 and amended in 1977, CAA section 302(g) defines the term as follows: The term ‘air pollutant’ means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air. 42 U.S.C. § 7602(g). This exceedingly broad language plainly covers GHGs emitted from motor vehicles: they are “physical [and] chemical ... substance[s] or matter ... emitted into ... the ambient air.” Indeed, in one CAA provision, added in 1990, Congress explicitly included C02 in a partial list of “air pollutants.” Section 103(g) instructs the Administrator to research “nonregulatory strategies and technologies for preventing or reducing multiple air pollutants, including sulfur oxides, nitrogen oxides, heavy metals, PM-10 (particulate matter), carbon monoxide, and carbon dioxide.” Id. § 7403(g) (emphasis added). Faced with such language, a court — as well as an agency — would normally end the analysis here and conclude that GHGs are “air pollutants,” since “[w]e ‘must presume that a legislature says in a statute what it means and means in a statute what it says .... When the words of a statute are unambiguous ... this first canon is also the last: judicial inquiry is, complete.’ ” Teva Pharm. Indus. Ltd. v. Crawford, 410 F.3d 51, 53 (D.C.Cir.2005) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)) (omissions in original). Unswayed by what it calls “narrow semantic analyses,” Resp’t Br. at 55 — but what courts typically call Chevron step one — EPA claims that a “more holistic analysis ... [of] the text, structure, and history of the CAA as a whole, as well as the context provided by other legislation that is specific to climate change,” justifies its conclusion that it cannot regulate GHGs like C02 for their effects on climate change, id. at 25-26. To disregard the Act’s plain text in this way, EPA needs an “extraordinarily convincing justification.” Appalachian Power Co. v. EPA, 249 F.3d 1032, 1041 (D.C.Cir.2001). “For the EPA to avoid a literal interpretation at Chevron step one, it must show either that, as a matter of historical fact, Congress did not mean what it appears to have said, or that, as a matter of logic and statutory structure, it almost surely could not have meant it.” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C.Cir.1996). EPA offers four reasons for abandoning the Act’s text. First, it suggests that since the 1965, 1970, and 1977 Congresses were not specifically concerned with global warming, the Act cannot apply to GHGs. Second, it claims that for both practical and policy reasons, global pollution should be tackled through specific statutory provisions rather than general ones. Third, relying on FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), it argues that Congress’s passage of legislation calling for study of climate change, along with Congress’s failure to pass any provisions tailored solely to regulating GHGs, demonstrates that the CAA cannot apply to GHGs. Finally, EPA. suggests that Congress couldn’t have intended the definition of “air pollutant” to cover C02, since EPA regulation of C02 emissions from automobiles would overlap with Department of Transportation (DOT) authority over fuel economy standards under a different act. None of these reasons provides a convincing justification — let alone an “extraordinarily convincing” one — for EPA’s counter-textual position. EPA first suggests that because the 1965, 1970, and 1977 Congresses showed little concern about the specific problem of global warming, reading the , CAA’s language to cover such problems would be like finding “an elephant in a mousehole.” Tr. of Oral Arg. at 32; see also Resp’t Br. at 23 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)). EPA is correct that those Congresses spilled little ink on the issue of global warming: while the legislative history contains a few stray references to human-forced- climate’ change, see, e.g., 111 Cong. Rec. 25,061 (Sept. 24, 1965) (statement of Rep. Helstoski); 116 Cong. Rec. 32,914 (Sept. 21, 1970) (report introduced in the record by Sen. Boggs), in those years the scientific understanding of the issue was nascent at best, see, e.g., Environmental Quality: The First Annual Report of the Council on Environmental Quality 93 (1970) (noting that “[m]an may be changing his weather” but expressing uncertainty as to whether global warming or cooling was occurring). But EPA errs in suggesting that because Congress may not have precisely foreseen global warming, the Act provides no authorization for GHG regulation. Hardly a mouse-hole, the definition of “air pollutants”— “including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air” — enables the Act to apply to new air pollution problems as well as existing ones. “[T]he fact that a statute can.be applied in situations not expressly anticipated by Congress,” the Supreme Court has explained, “does not demonstrate ambiguity. It demonstrates breadth.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 689, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (quoting Pa. Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998)). Indeed, Congress expressly instructed EPA to be on the lookout for climate-related problems in evaluating risks to “welfare.” Section 302(h), added in 1970, explains that “[a]ll language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops; vegetation, man-made materials, animals, wildlife, weather, visibility, and climate.” 42 U.S.C. § 7602(h) (emphasis added). EPA’s second reason for- its- interpretation — that for practical and policy reasons global warming should be dealt with through specifically tailored statutes — likewise fails to trump Congress’s plain language. It may well be that a statute aimed solely at global warming would deal with the problem more effectively than one aimed generally at air pollution. But an agency may not “avoid the Congressional intent clearly expressed in the [statutory] text simply by asserting that its preferred approach would be better policy.” Engine Mfrs. Ass’n, 88 F.3d at 1089. Perhaps recognizing this point, EPA attempts to link its policy arguments to the statute by claiming that because the 1977 and 1990 Congresses enacted provisions specific to another global pollution problem — depletion of stratospheric ozone — we must infer that the Act’s general provisions do not cover such global problems. Once again, EPA makes much of very little. While the 1977 Congress did add provisions aimed specifically at ozone depletion, it also made clear that “[njothing in this [ozone-specific] part shall be construed to alter or affect the authority of the Administrator under ... any other provision of this Act.” Pub.L. No. 95-95, § 158, 91 Stat. 685, 730 (1977); see also H.R.Rep. No. 95-294, at 102 (1977) (expressing the House Committee’s view that EPA could already regulate emissions to protect stratospheric ozone under an existing general provision of the CAA). Similarly, I see nothing in the 1