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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, )
)
Plaintiff, )
)
v. ) Case No. 4:05-cv-00329-GKF-PJC
)
TYSON FOODS, INC., et al., )
)
Defendants. )

STATE OF OKLAHOMA'S NOTICE OF RELEVANT AUTHORITY

The State of Oklahoma respectfully notifies the Court of the United States Supreme

Courts June 20, 2011 decision in American Electric Power Co., Inc. v. Connecticut, No. 10-174

(AEP) (attached as Exhibit A). This decision addresses the circumstances under which there is

displacement of the federal common law.

The issue of whether the Clean Water Act displaces the States federal common law of

nuisance claim has been extensively briefed and argued in this case. The States and

Defendants respective positions on this issue are reflected in State of Oklahomas Proposed

Findings of Fact and Conclusions of Law, DKT #2873 at pp. 287-298, and Defendants

Proposed Findings of Fact and Conclusions of Law, DKT #2876, Ex. A at pp. 111-120.

Furthermore, this Courts analysis of the issue is reflected in its bench ruling in which it denied

Defendants Fed. R. Civ. P. 52(c) motion concerning Clean Water Act displacement of the

States federal common law of nuisance claim. See Dec. 22, 2009 Daily Trans., 9304:3-9311:15

(attached as Exhibit B).

The AEP decision is relevant to the issues in this case in at least two significant respects.

First, the AEP decision confirms that [t]he test for whether congressional legislation

excludes the declaration of federal common law is simply whether the statute speak[s] directly

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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 2 of 8

to [the] question at issue. AEP at 10 (citations omitted). Noting that Massachusetts [v. EPA,

549 U.S. 497 (2007)] made plain that emissions of carbon dioxide qualify as air pollution subject

to regulation under the [Clean Air] Act, the Supreme Court concluded that the Clean Air Act

spoke directly to question at issue and that accordingly there was displacement of the federal

common law. AEP at 10-11; see also AEP at 12 (The critical point is that Congress delegated

to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants;

the delegation is what displaces federal common law.).

Second, the AEP decision confirms that this Court applied the correct test in analyzing

and denying Defendants Fed. R. Civ. P. 52(c) motion concerning Clean Water Act displacement

of the States federal common law of nuisance claim. See Dec. 22, 2009 Daily Trans., 9304:3-

9311:15. Specifically, this Court noted the Tenth Circuit decisions in Defenders of Wildlife v.

EPA, 415 F.3d 1121 (10th Cir. 2005), and American Wildlands v. Browner, 260 F.3d 1192 (10th

Cir. 2001), which indicate that the CWA does not directly or comprehensively regulate nonpoint

source pollution, and concluded in a lengthy and detailed oral order that the defendants have not

shown that the 1987 amendments to the Clean Water Act legislate a remedy or actually regulate

the nonpoint source alleged nuisance at issue. See Dec. 22, 2009 Daily Trans., 9311:2-5. This

Courts analysis was therefore consistent with the test set forth in AEP.

Respectfully Submitted,

/s/Robert A. Nance
M. David Riggs OBA #7583
Joseph P. Lennart OBA #5371
Richard T. Garren OBA #3253
Sharon K. Weaver OBA #19010
Robert A. Nance OBA #6581
D. Sharon Gentry OBA #15641
David P. Page OBA #6852
RIGGS, ABNEY, NEAL, TURPEN,
ORBISON & LEWIS

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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 3 of 8

502 West Sixth Street


Tulsa, OK 74119
(918) 587-3161

Louis W. Bullock OBA #1305


Robert M. Blakemore OBA 18656
BULLOCK, BULLOCK & BLAKEMORE
110 West Seventh Street Suite 707
Tulsa OK 74119
(918) 584-2001

Frederick C. Baker
(admitted pro hac vice)
MOTLEY RICE, LLC
28 Bridgeside Boulevard
Mount Pleasant, SC 29465
(843) 216-9280

William H. Narwold
(admitted pro hac vice)
Ingrid L. Moll
(admitted pro hac vice)
MOTLEY RICE, LLC
20 Church Street, 17th Floor
Hartford, CT 06103
(860) 882-1676

Jonathan D. Orent
(admitted pro hac vice)
Michael G. Rousseau
(admitted pro hac vice)
Fidelma L. Fitzpatrick
(admitted pro hac vice)
MOTLEY RICE, LLC
321 South Main Street
Providence, RI 02940
(401) 457-7700

Attorneys for the State of Oklahoma

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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 4 of 8

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of July, 2011, I electronically transmitted the above
and foregoing pleading to the Clerk of the Court using the ECF System for filing and a
transmittal of a Notice of Electronic Filing to the following ECF registrants:

Clayton Eubanks, Assistant Attorney General fc_docket@oag.state.ok.us


clayton.eubanks@oag.ok.gov

M. David Riggs driggs@riggsabney.com


Joseph P. Lennart jlennart@riggsabney.com
Richard T. Garren rgarren@riggsabney.com
Sharon K. Weaver sweaver@riggsabney.com
Robert A. Nance rnance@riggsabney.com
D. Sharon Gentry sgentry@riggsabney.com
David P. Page dpage@riggsabney.com
RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS

Louis Werner Bullock lbullock@bullock-blakemore.com


Robert M. Blakemore bblakemore@bullock-blakemore.com
BULLOCK, BULLOCK & BLAKEMORE

Frederick C. Baker fbaker@motleyrice.com


Lee M. Heath lheath@motleyrice.com
Elizabeth C. Ward lward@motleyrice.com
Elizabeth Claire Xidis cxidis@motleyrice.com
William H. Narwold bnarwold@motleyrice.com
Ingrid L. Moll imoll@motleyrice.com
Jonathan D. Orent jorent@motleyrice.com
Michael G. Rousseau mrousseau@motleyrice.com
Fidelma L. Fitzpatrick ffitzpatrick@motleyrice.com
MOTLEY RICE, LLC
Counsel for State of Oklahoma

Robert P. Redemann rredemann@pmrlaw.net


PERRINE, MCGIVERN, REDEMANN, REID, BARRY & TAYLOR, P.L.L.C.

David C. Senger david@cgmlawok.com

Robert E Sanders rsanders@youngwilliams.com


Edwin Stephen Williams steve.williams@youngwilliams.com
YOUNG WILLIAMS P.A.
Counsel for Cal-Maine Farms, Inc and Cal-Maine Foods, Inc.

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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 5 of 8

John H. Tucker jtucker@rhodesokla.com


Theresa Noble Hill thill@rhodesokla.com
Colin Hampton Tucker ctucker@rhodesokla.com
Kerry R. Lewis klewis@rhodesokla.com
RHODES, HIERONYMUS, JONES, TUCKER & GABLE

Terry Wayen West terry@thewestlawfirm.com


THE WEST LAW FIRM

Delmar R. Ehrich dehrich@faegre.com


Bruce Jones bjones@faegre.com
Krisann C. Kleibacker Lee kklee@faegre.com
Todd P. Walker twalker@faegre.com
Christopher H. Dolan cdolan@faegre.com
Melissa C. Collins mcollins@faegre.com
Colin C. Deihl cdeihl@faegre.com
Randall E. Kahnke rkahnke@faegre.com
FAEGRE & BENSON, LLP

Dara D. Mann dmann@mckennalong.com


MCKENNA, LONG & ALDRIDGE LLP
Counsel for Cargill, Inc. & Cargill Turkey Production, LLC

James Martin Graves jgraves@bassettlawfirm.com


Gary V Weeks gweeks@bassettlawfirm.com
Woody Bassett wbassett@bassettlawfirm.com
K. C. Dupps Tucker kctucker@bassettlawfirm.com
Earl Lee Buddy Chadick bchadick@bassettlawfirm.com
Vincent O. Chadick vchadick@bassettlawfirm.com
BASSETT LAW FIRM

George W. Owens gwo@owenslawfirmpc.com


Randall E. Rose rer@owenslawfirmpc.com
OWENS LAW FIRM, P.C.
Counsel for Georges Inc. & Georges Farms, Inc.

A. Scott McDaniel smcdaniel@mhla-law.com


Nicole Longwell nlongwell@mhla-law.com
Philip Hixon phixon@mhla-law.com
Craig A. Merkes cmerkes@mhla-law.com
MCDANIEL, HIXON, LONGWELL & ACORD, PLLC

Sherry P. Bartley sbartley@mwsgw.com


MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD, PLLC

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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 6 of 8

Counsel for Peterson Farms, Inc.

John Elrod jelrod@cwlaw.com


Vicki Bronson vbronson@cwlaw.com
P. Joshua Wisley jwisley@cwlaw.com
Bruce W. Freeman bfreeman@cwlaw.com
D. Richard Funk rfunk@cwlaw.com
CONNER & WINTERS, LLP
Counsel for Simmons Foods, Inc.

Stephen L. Jantzen sjantzen@ryanwhaley.com


Paula M. Buchwald pbuchwald@ryanwhaley.com
Patrick M. Ryan pryan@ryanwhaley.com
RYAN, WHALEY, COLDIRON & SHANDY, P.C.

Mark D. Hopson mhopson@sidley.com


Jay Thomas Jorgensen jjorgensen@sidley.com
Timothy K. Webster twebster@sidley.com
Thomas C. Green tcgreen@sidley.com
Gordon D. Todd gtodd@sidley.com
SIDLEY, AUSTIN, BROWN & WOOD LLP

Robert W. George robert.george@tyson.com


L. Bryan Burns bryan.burns@tyson.com
Timothy T. Jones tim.jones@tyson.com
TYSON FOODS, INC

Michael R. Bond michael.bond@kutakrock.com


Erin W. Thompson erin.thompson@kutakrock.com
Dustin R. Darst dustin.darst@kutakrock.com
KUTAK ROCK, LLP
Counsel for Tyson Foods, Inc., Tyson Poultry, Inc., Tyson Chicken, Inc., & Cobb-Vantress, Inc.

R. Thomas Lay rtl@kiralaw.com


KERR, IRVINE, RHODES & ABLES
Frank M. Evans, III fevans@lathropgage.com
Jennifer Stockton Griffin jgriffin@lathropgage.com
David Gregory Brown
LATHROP & GAGE LC
Counsel for Willow Brook Foods, Inc.

Robin S Conrad rconrad@uschamber.com

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Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 7 of 8

NATIONAL CHAMBER LITIGATION CENTER

Gary S Chilton gchilton@hcdattorneys.com


HOLLADAY, CHILTON AND DEGIUSTI, PLLC
Counsel for US Chamber of Commerce and American Tort Reform Association

D. Kenyon Williams, Jr. kwilliams@hallestill.com


Michael D. Graves mgraves@hallestill.com
HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON
Counsel for Poultry Growers/Interested Parties/ Poultry Partners, Inc.

Richard Ford richard.ford@crowedunlevy.com


LeAnne Burnett leanne.burnett@crowedunlevy.com
CROWE & DUNLEVY
Counsel for Oklahoma Farm Bureau, Inc.

Kendra Akin Jones, Assistant Attorney General Kendra.Jones@arkansasag.gov


Charles L. Moulton, Sr Assistant Attorney General Charles.Moulton@arkansasag.gov
Counsel for State of Arkansas and Arkansas National Resources Commission

Mark Richard Mullins richard.mullins@mcafeetaft.com


MCAFEE & TAFT
Counsel for Texas Farm Bureau; Texas Cattle Feeders Association; Texas Pork Producers
Association and Texas Association of Dairymen

Mia Vahlberg mvahlberg@gablelaw.com


GABLE GOTWALS

James T. Banks jtbanks@hhlaw.com


Adam J. Siegel ajsiegel@hhlaw.com
HOGAN & HARTSON, LLP
Counsel for National Chicken Council; U.S. Poultry and Egg Association & National Turkey
Federation

John D. Russell jrussell@fellerssnider.com


FELLERS, SNIDER, BLANKENSHIP, BAILEY
& TIPPENS, PC

William A. Waddell, Jr. waddell@fec.net


David E. Choate dchoate@fec.net

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FRIDAY, ELDREDGE & CLARK, LLP


Counsel for Arkansas Farm Bureau Federation

Barry Greg Reynolds reynolds@titushillis.com


Jessica E. Rainey jrainey@titushillis.com
TITUS, HILLIS, REYNOLDS, LOVE,
DICKMAN & MCCALMON

Nikaa Baugh Jordan njordan@lightfootlaw.com


William S. Cox, III wcox@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE, LLC
Counsel for American Farm Bureau and National Cattlemens Beef Association

Duane L. Berlin dberlin@levberlin.com


LEV & BERLIN PC
Counsel for Council of American Survey Research Organizations & American Association for
Public Opinion Research

/s/Robert A. Nance

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EXHIBIT A
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 2 of 9

Page 1

2 of 225 DOCUMENTS

AMERICAN ELECTRIC POWER COMPANY, INC., ET AL., PETITIONERS v.


CONNECTICUT ET AL.

No. 10-174

SUPREME COURT OF THE UNITED STATES

2011 U.S. LEXIS 4565

April 19, 2011, Argued


June 20, 2011, Decided

NOTICE: York City; the second joined three nonprofit land trusts.
According to the complaint, the defendants are the larg-
The LEXIS pagination of this document is subject to
est emitters [*2] of carbon dioxide in the Nation. By
change pending release of the final published version.
contributing to global warming, the plaintiffs asserted,
the defendants' emissions substantially and unreasonably
PRIOR HISTORY: [*1]
interfered with public rights, in violation of the federal
ON WRIT OF CERTIORARI TO THE UNITED
common law of interstate nuisance, or, in the alternative,
STATES COURT OF APPEALS FOR THE SECOND
of state tort law. All plaintiffs ask for a decree setting
CIRCUIT.
carbon-dioxide emissions for each defendant at an initial
Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 2009
cap, to be further reduced annually.
U.S. App. LEXIS 20873 (2d Cir. N.Y., 2009)
The District Court dismissed both suits as presenting
DISPOSITION: Reversed and remanded. nonjusticiable political questions, but the Second Circuit
reversed. On the threshold questions, the Circuit held
that the suits were not barred by the political question
SYLLABUS doctrine and that the plaintiffs had adequately alleged
Article III standing. On the merits, the court held that the
In Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct.
plaintiffs had stated a claim under the "federal common
1438, 167 L. Ed. 2d 248, this Court held that the Clean
law of nuisance," relying on this Court's decisions hold-
Air Act authorizes federal regulation of emissions of
ing that States may maintain suits to abate air and water
carbon dioxide and other greenhouse gases, and that the
pollution produced by other States or by out-of-state in-
Environmental Protection Agency (EPA) had misread
dustry, see, e.g., Illinois v. Milwaukee, 406 U.S. 91, 93,
that Act when it denied a rulemaking petition seeking
92 S. Ct. 1385, 31 L. Ed. 2d 712 (Milwaukee I). The
controls on greenhouse gas emissions from new motor
court further determined that the Clean Air Act did not
vehicles. In response, EPA commenced a rulemaking
"displace" federal common law.
under 111 of the Act, 42 U.S.C. 7411, to set limits on
greenhouse gas emissions from new, modified, and exist- Held:
ing fossil-fuel fired power plants. Pursuant to a settle-
1. The Second Circuit's exercise of jurisdiction [*3]
ment finalized in March 2011, EPA has committed to
is affirmed by an equally divided Court. P. 6.
issuing a final rule by May 2012.
2. The Clean Air Act and the EPA action the Act au-
The lawsuits considered here began well before EPA
thorizes displace any federal common-law right to seek
initiated efforts to regulate greenhouse gases. Two
abatement of carbon-dioxide emissions from fossil-fuel
groups of plaintiffs, respondents here, filed separate
fired power plants. Pp. 6-16.
complaints in a Federal District Court against the same
five major electric power companies, petitioners here. (a) Since Erie R. Co. v. Tompkins, 304 U.S. 64, 78,
One group of plaintiffs included eight States and New 58 S. Ct. 817, 82 L. Ed. 1188, recognized that there "is
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Page 2
2011 U.S. LEXIS 4565, *

no federal general common law," a new federal common reviewable in federal court. See 7607(b)(1). The Act
law has emerged for subjects of national concern. When itself thus provides a means to seek limits on emissions
dealing "with air and water in their ambient or interstate of carbon dioxide from domestic power plants -- the
aspects, there is a federal common law." Milwaukee I, same relief the plaintiffs seek by invoking federal com-
406 U.S., at 103, 92 S. Ct. 1385, 31 L. Ed. 2d 712. Deci- mon law. There is no room for a parallel track. Pp. 9-11.
sions of this Court predating Erie, but compatible with
(c) The Court rejects the plaintiffs' argument, and
the emerging distinction between general common law
the Second Circuit's holding, that federal common law is
and the new federal common law, have approved federal
not displaced until EPA actually exercises its regulatory
common-law suits brought by one State to abate pollu-
authority by setting emissions standards for the defen-
tion emanating from another State. See, e.g., Missouri v.
dants' [*6] plants. The relevant question for displace-
Illinois, 180 U.S. 208, 241-243, 21 S. Ct. 331, 45 L. Ed.
ment purposes is "whether the field has been occupied,
497. The plaintiffs contend that their right to maintain
not whether it has been occupied in a particular manner."
this suit follows from such cases. But recognition that a
Milwaukee II, 451 U.S., at 324, 101 S. Ct. 1784, 68 L.
subject is meet for federal law governance does not nec-
Ed. 2d 114. The Clean Air Act is no less an exercise of
essarily mean that federal courts should create the con-
the Legislature's "considered judgment" concerning air
trolling law. The Court need not address the question
pollution regulation because it permits emissions until
whether, absent the Clean Air Act and the EPA actions it
EPA acts. The critical point is that Congress delegated to
authorizes, [*4] the plaintiffs could state a federal com-
EPA the decision whether and how to regulate carbon-
mon-law claim for curtailment of greenhouse gas emis-
dioxide emissions from power plants; the delegation dis-
sions because of their contribution to global warming.
places federal common law. If the plaintiffs in this case
Any such claim would be displaced by the federal legis-
are dissatisfied with the outcome of EPA's forthcoming
lation authorizing EPA to regulate carbon-dioxide emis-
rulemaking, their recourse is to seek Court of Appeals
sions. Pp. 6-9.
review, and, ultimately, to petition for certiorari.
(b) "[W]hen Congress addresses a question previ-
The Act's prescribed order of decisionmaking -- first
ously governed by a decision rested on federal common
by the expert agency, and then by federal judges -- is yet
law the need for such an unusual exercise of law-making
another reason to resist setting emissions standards by
by federal courts disappears." Milwaukee v. Illinois, 451
judicial decree under federal tort law. The appropriate
U.S. 304, 314, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (Mil-
amount of regulation in a particular greenhouse gas-
waukee II). Legislative displacement of federal common
producing sector requires informed assessment of com-
law does not require the "same sort of evidence of a clear
peting interests. The Clean Air Act entrusts such com-
and manifest [congressional] purpose" demanded for
plex balancing to EPA in the first instance, in combina-
preemption of state law. Id., at 317, 101 S. Ct. 1784, 68
tion with state regulators. The expert [*7] agency is
L. Ed. 2d 114. Rather, the test is simply whether the stat-
surely better equipped to do the job than federal judges,
ute "speak[s] directly to [the] question" at issue. Mobil
who lack the scientific, economic, and technological
Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S. Ct.
resources an agency can utilize in coping with issues of
2010, 56 L. Ed. 2d 581. Here, Massachusetts made plain
this order. The plaintiffs' proposal to have federal judges
that emissions of carbon dioxide qualify as air pollution
determine, in the first instance, what amount of carbon-
subject to regulation under the Clean Air Act. 549 U.S.,
dioxide emissions is "unreasonable" and what level of
at 528-529, 127 S. Ct. 1438, 167 L. Ed. 2d 248. And it is
reduction is necessary cannot be reconciled with Con-
equally plain that the Act "speaks directly" to emissions
gress' scheme. Pp. 12-15.
of carbon dioxide from the defendants' plants. The Act
directs EPA to establish emissions standards for catego- (d) The plaintiffs also sought relief under state nui-
ries of stationary [*5] sources that, "in [the Administra- sance law. The Second Circuit did not reach those claims
tor's] judgment," "caus[e], or contribut[e] significantly because it held that federal common law governed. In
to, air pollution which may reasonably be anticipated to light of the holding here that the Clean Air Act displaces
endanger public health or welfare." 7411(b)(1)(A). federal common law, the availability vel non of a state
Once EPA lists a category, it must establish performance lawsuit depends, inter alia, on the preemptive effect of
standards for emission of pollutants from new or modi- the federal Act. Because none of the parties have briefed
fied sources within that category, 7411(b)(1)(B), and, preemption or otherwise addressed the availability of a
most relevant here, must regulate existing sources within claim under state nuisance law, the matter is left for con-
the same category, 7411(d). The Act also provides sideration on remand. Pp. 15-16.
multiple avenues for enforcement. If EPA does not set
emissions limits for a particular pollutant or source of 582 F.3d 309, reversed and remanded.
pollution, States and private parties may petition for a
rulemaking on the matter, and EPA's response will be
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Page 3
2011 U.S. LEXIS 4565, *

COUNSEL: Peter D. Keisler argued the cause for peti- greenhouse gas emission standards and had offered no
tioners. "reasoned explanation" for failing to do so, we concluded
that the agency had not acted "in accordance with law"
Neal Kumar Katyal argued the cause for respondent. when it denied the requested rulemaking. Id., at 534-535,
127 S. Ct. 1438, 167 L. Ed. 2d 248 (quoting
Barbara D. Underwood argued the cause for respon- 7607(d)(9)(A)).
dents.
1 In addition to carbon dioxide, the primary
JUDGES: GINSBURG, J., delivered the opinion of the greenhouse gases emitted by human activities in-
Court, in which ROBERTS, C. J., and SCALIA, KEN- clude methane, nitrous oxide, hydrofluorocar-
NEDY, BREYER, and KAGAN, JJ., joined. ALITO, J., bons, perfluorocarbons, and sulfur hexafluoride.
filed an opinion concurring in part and concurring in the 74 Fed. Reg. 66499.
judgment, [*8] in which THOMAS, J., joined. SO-
Responding to our decision in Massachusetts, EPA
TOMAYOR, J., took no part in the consideration or de-
undertook greenhouse gas regulation. In December 2009,
cision of the case.
the agency concluded that greenhouse gas emissions
from motor vehicles "cause, or contribute to, air pollu-
OPINION BY: GINSBURG
tion which [*10] may reasonably be anticipated to en-
danger public health or welfare," the Act's regulatory
OPINION
trigger. 7521(a)(1); 74 Fed. Reg. 66496. The agency
JUSTICE GINSBURG delivered the opinion of the observed that "atmospheric greenhouse gas concentra-
Court. tions are now at elevated and essentially unprecedented
levels," almost entirely "due to anthropogenic emis-
We address in this opinion the question whether the
sions," id., at 66517; mean global temperatures, the
plaintiffs (several States, the city of New York, and three
agency continued, demonstrate an "unambiguous warm-
private land trusts) can maintain federal common law
ing trend over the last 100 years," and particularly "over
public nuisance claims against carbon-dioxide emitters
the past 30 years," ibid. Acknowledging that not all sci-
(four private power companies and the federal Tennessee
entists agreed on the causes and consequences of the rise
Valley Authority). As relief, the plaintiffs ask for a de-
in global temperatures, id., at 66506, 66518, 66523-
cree setting carbon-dioxide emissions for each defendant
66524, EPA concluded that "compelling" evidence sup-
at an initial cap, to be further reduced annually. The
ported the "attribution of observed climate change to
Clean Air Act and the Environmental Protection Agency
anthropogenic" emissions of greenhouse gases, id., at
action the Act authorizes, we hold, displace the claims
66518. Consequent dangers of greenhouse gas emissions,
the plaintiffs seek to pursue.
EPA determined, included increases in heat-related
I deaths; coastal inundation and erosion caused by melting
icecaps and rising sea levels; more frequent and intense
In Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct.
hurricanes, floods, and other "extreme weather events"
1438, 167 L. Ed. 2d 248 (2007), this Court held that the that cause death and destroy infrastructure; drought due
Clean Air Act, 42 U.S.C. 7401 et seq., authorizes fed- to reductions in mountain snowpack and shifting precipi-
eral regulation of emissions of carbon dioxide and other
tation patterns; destruction [*11] of ecosystems support-
greenhouse gases. "[N]aturally present in the atmosphere ing animals and plants; and potentially "significant dis-
and . . . also emitted by human activities," greenhouse ruptions" of food production. Id., at 66524-66535. 2
gases are so named because they "trap . . . heat that
would otherwise escape from the [Earth's] atmosphere, 2 For views opposing EPA's, see, e.g.,
and thus form the greenhouse effect that helps keep [*9] Dawidoff, The Civil Heretic, N. Y. Times Maga-
the Earth warm enough for life." 74 Fed. Reg. 66499
zine 32 (March 29, 2009). The Court, we caution,
(2009). 1 Massachusetts held that the Environmental Pro- endorses no particular view of the complicated is-
tection Agency (EPA) had misread the Clean Air Act sues related to carbon-dioxide emissions and cli-
when it denied a rulemaking petition seeking controls on
mate change.
greenhouse gas emissions from new motor vehicles. 549
U.S., at 510-511, 127 S. Ct. 1438, 167 L. Ed. 2d 248. EPA and the Department of Transportation subse-
Greenhouse gases, we determined, qualify as "air pollut- quently issued a joint final rule regulating emissions
ant[s]" within the meaning of the governing Clean Air from light-duty vehicles, see 75 Fed. Reg. 25324 (2010),
Act provision, id., at 528-529, 127 S. Ct. 1438, 167 L. and initiated a joint rulemaking covering medium- and
Ed. 2d 248 (quoting 7602(g)); they are therefore within heavy-duty vehicles, see id., at 74152. EPA also began
EPA's regulatory ken. Because EPA had authority to set phasing in requirements that new or modified "[m]ajor
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Page 4
2011 U.S. LEXIS 4565, *

[greenhouse gas] emitting facilities" use the "best avail- its carbon dioxide emissions and then reduce them by a
able control technology." 7475(a)(4); 75 Fed. Reg. specified percentage each year for at least a decade."
31520-31521. Finally, EPA commenced a rulemaking App. 110, 153.
under 111 of the Act, 42 U.S.C. 7411, to set limits on
The District Court dismissed both suits as presenting
greenhouse gas emissions from new, modified, and exist-
non-justiciable political questions, citing Baker v. Carr,
ing fossil-fuel fired power plants. Pursuant to a settle-
369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), but
ment finalized in March 2011, EPA has committed to
[*14] the Second Circuit reversed, 582 F.3d 309 (2009).
issuing a proposed rule by July 2011, and a final rule by
On the threshold questions, the Court of Appeals held
May 2012. See 75 Fed. Reg. 82392; Reply Brief for
that the suits were not barred by the political question
Tennessee Valley Authority [*12] 18.
doctrine, id., at 332, and that the plaintiffs had ade-
II quately alleged Article III standing, id., at 349.
The lawsuits we consider here began well before Turning to the merits, the Second Circuit held that
EPA initiated the efforts to regulate greenhouse gases all plaintiffs had stated a claim under the "federal com-
just described. In July 2004, two groups of plaintiffs filed mon law of nuisance." Id., at 358, 371. For this determi-
separate complaints in the Southern District of New nation, the court relied dominantly on a series of this
York against the same five major electric power compa- Court's decisions holding that States may maintain suits
nies. The first group of plaintiffs included eight States 3 to abate air and water pollution produced by other States
and New York City, the second joined three nonprofit or by out-of-state industry. Id., at 350-351; see, e.g., Illi-
land trusts 4; both groups are respondents here. The de- nois v. Milwaukee, 406 U.S. 91, 93, 92 S. Ct. 1385, 31 L.
fendants, now petitioners, are four private companies 5 Ed. 2d 712 (1972) (Milwaukee I) (recognizing right of
and the Tennessee Valley Authority, a federally owned Illinois to sue in federal district court to abate discharge
corporation that operates fossil-fuel fired power plants in of sewage into Lake Michigan).
several States. According to the complaints, the defen-
The Court of Appeals further determined that the
dants "are the five largest emitters of carbon dioxide in
Clean Air Act did not "displace" federal common law. In
the United States." App. 57, 118. Their collective annual
Milwaukee v. Illinois, 451 U.S. 304, 316-319, 101 S. Ct.
emissions of 650 million tons constitute 25 percent of
1784, 68 L. Ed. 2d 114 (1981) (Milwaukee II), this Court
emissions from the domestic electric power sector, 10
held that Congress had displaced the federal common
percent of emissions from all domestic human activities,
law right of action recognized in Milwaukee I by adopt-
ibid., and 2.5 percent of all anthropogenic emissions
ing amendments to the Clean Water Act, 33 U.S.C.
worldwide, App. to Pet. for Cert. 72a.
1251 et seq. That legislation [*15] installed an all-
encompassing regulatory program, supervised by an ex-
3 California, Connecticut, Iowa, New Jersey,
pert administrative agency, to deal comprehensively with
New York, Rhode Island, Vermont, and Wiscon-
interstate water pollution. The legislation itself prohib-
sin, although New Jersey and Wisconsin are no
ited the discharge of pollutants into the waters of the
longer participating. Brief [*13] for Respondents
United States without a permit from a proper permitting
Connecticut et al. 3, n. 1.
authority. Milwaukee II, 451 U.S., at 310-311, 101 S. Ct.
4 Open Space Institute, Inc., Open Space Con-
1784, 68 L. Ed. 2d 114 (citing 1311). At the time of the
servancy, Inc., and Audubon Society of New
Second Circuit's decision, by contrast, EPA had not yet
Hampshire.
promulgated any rule regulating greenhouse gases, a fact
5 American Electric Power Company, Inc. (and
the court thought dispositive. 582 F.3d at 379-381. "Un-
a wholly owned subsidiary), Southern Company,
til EPA completes the rulemaking process," the court
Xcel Energy Inc., and Cinergy Corporation.
reasoned, "we cannot speculate as to whether the hypo-
By contributing to global warming, the plaintiffs as- thetical regulation of greenhouse gases under the Clean
serted, the defendants' carbon-dioxide emissions created Air Act would in fact 'spea[k] directly' to the 'particular
a "substantial and unreasonable interference with public issue' raised here by Plaintiffs." Id., at 380.
rights," in violation of the federal common law of inter-
We granted certiorari. 562 U.S. ___, 131 S. Ct. 813,
state nuisance, or, in the alternative, of state tort law.
178 L. Ed. 2d 530 (2010).
App. 103-105, 145-147. The States and New York City
alleged that public lands, infrastructure, and health were III
at risk from climate change. App. 88-93. The trusts urged
The petitioners contend that the federal courts lack
that climate change would destroy habitats for animals
and rare species of trees and plants on land the trusts authority to adjudicate this case. Four members of the
owned and conserved. App. 139-145. All plaintiffs Court would hold that at least some plaintiffs have Arti-
sought injunctive relief requiring each defendant "to cap cle III standing under Massachusetts, which permitted a
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2011 U.S. LEXIS 4565, *

State to challenge EPA's refusal to regulate greenhouse L. Ed. 497 (1901) (permitting suit by Missouri to enjoin
gas emissions, 549 U.S., at 520-526, 127 S. Ct. 1438, Chicago from discharging untreated sewage into inter-
167 L. Ed. 248; and, further, that no other [*16] thresh- state [*18] waters); New Jersey v. City of New York, 283
old obstacle bars review. 6 Four members of the Court, U.S. 473, 477, 481-483, 51 S. Ct. 519, 75 L. Ed. 1176
adhering to a dissenting opinion in Massachusetts, 549 (1931) (ordering New York City to stop dumping gar-
U.S., at 535, 127 S. Ct. 1438, 167 L. Ed. 248, or regard- bage off New Jersey coast); Georgia v. Tennessee Cop-
ing that decision as distinguishable, would hold that none per Co., 240 U.S. 650, 36 S. Ct. 465, 60 L. Ed. 846
of the plaintiffs have Article III standing. We therefore (1916) (ordering private copper companies to curtail
affirm, by an equally divided Court, the Second Circuit's sulfur-dioxide discharges in Tennessee that caused harm
exercise of jurisdiction and proceed to the merits. See in Georgia). See also Milwaukee I, 406 U.S., at 107, 92
Nye v. United States, 313 U.S. 33, 44, 61 S. Ct. 810, 85 S. Ct. 1385, 31 L. Ed. 2d 712 (post-Erie decision uphold-
L. Ed. 1172 (1941). ing suit by Illinois to abate sewage discharges into Lake
Michigan). The plaintiffs contend that their right to
6 In addition to renewing the political question maintain this suit follows inexorably from that line of
argument made below, the petitioners now assert decisions.
an additional threshold obstacle: They seek dis-
Recognition that a subject is meet for federal law
missal because of a "prudential" bar to the adju-
governance, however, does not necessarily mean that
dication of generalized grievances, purportedly
federal courts should create the controlling law. Absent a
distinct from Article III's bar. See Brief for Ten-
demonstrated need for a federal rule of decision, the
nessee Valley Authority 14-24; Brief for Peti-
Court has taken "the prudent course" of "adopt[ing] the
tioners 30-31.
readymade body of state law as the federal rule of deci-
IV sion until Congress strikes a different accommodation."
United States v. Kimbell Foods, Inc., 440 U.S. 715, 740,
A
99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979); see Bank of
"There is no federal general common law," Erie R. America Nat'l Trust & Sav. Ass'n v. Parnell, 352 U.S. 29,
Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. 32-34, 77 S. Ct. 119, 1 L. Ed. 2d 93 (1956). And where,
Ed. 1188 (1938), famously recognized. In the wake of as here, borrowing the law of a particular State would be
Erie, however, a keener understanding developed. See inappropriate, the Court remains mindful that [*19] it
generally Friendly, In Praise of Erie -- And of the New does not have creative power akin to that vested in Con-
Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). gress. See Missouri v. Illinois, 200 U.S. 496, 519, 26 S.
Erie "le[ft] to the states what ought be left to them," id., Ct. 268, 50 L. Ed. 572 (1906) ("fact that this court must
at 405, and thus required "federal courts [to] follow state decide does not mean, of course, that it takes the place of
decisions on matters of substantive [*17] law appropri- a legislature"); cf. United States v. Standard Oil Co. of
ately cognizable by the states," id., at 422. Erie also Cal., 332 U.S. 301, 308, 314, 67 S. Ct. 1604, 91 L. Ed.
sparked "the emergence of a federal decisional law in 2067 (1947) (holding that federal law determines
areas of national concern." Id., at 405. The "new" federal whether Government could secure indemnity from a
common law addresses "subjects within national legisla- company whose truck injured a United States soldier, but
tive power where Congress has so directed" or where the declining to impose such an indemnity absent action by
basic scheme of the Constitution so demands. Id., at 408, Congress, "the primary and most often the exclusive ar-
n. 119, 421-422. Environmental protection is undoubt- biter of federal fiscal affairs").
edly an area "within national legislative power," one in
In the cases on which the plaintiffs heavily rely,
which federal courts may fill in "statutory interstices,"
States were permitted to sue to challenge activity harm-
and, if necessary, even "fashion federal law." Id., at 421-
ful to their citizens' health and welfare. We have not yet
422. As the Court stated in Milwaukee I: "When we deal
decided whether private citizens (here, the land trusts) or
with air and water in their ambient or interstate aspects,
political subdivisions (New York City) of a State may
there is a federal common law." 406 U.S., at 103, 92 S.
invoke the federal common law of nuisance to abate out-
Ct. 1385, 31 L. Ed. 2d 712.
of-state pollution. Nor have we ever held that a State
Decisions of this Court predating Erie, but compati- may sue to abate any and all manner of pollution origi-
ble with the distinction emerging from that decision be- nating outside its borders.
tween "general common law" and "specialized federal
The defendants argue that considerations of scale
common law," Friendly, supra, at 405, have approved
and complexity distinguish global warming from the
federal common law suits brought by one State to abate
more bounded pollution giving rise to past federal [*20]
pollution emanating from another State. See, e.g., Mis-
nuisance suits. Greenhouse gases once emitted "become
souri v. Illinois, 180 U.S. 208, 241-243, 21 S. Ct. 331, 45
well mixed in the atmosphere," 74 Fed. Reg. 66514;
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Page 6
2011 U.S. LEXIS 4565, *

emissions in New Jersey may contribute no more to of N. Y., 470 U.S. 226, 236-237, 105 S. Ct. 1245, 84 L.
flooding in New York than emissions in China. Cf. Brief Ed. 2d 169 (1985).
for Petitioners 18-19. The plaintiffs, on the other hand,
We hold that the Clean Air Act and the EPA actions
contend that an equitable remedy against the largest
it authorizes displace any federal common law right to
emitters of carbon dioxide in the United States is in order
seek abatement of carbon-dioxide emissions from fossil-
and not beyond judicial competence. See Brief for Re-
fuel fired power plants. Massachusetts made plain that
spondents Open Space Institute et al. 32-35. And we
emissions of carbon dioxide qualify as air pollution sub-
have recognized that public nuisance law, like common
ject to regulation under the Act. 549 U.S., at 528-529,
law generally, adapts to changing scientific and factual
127 S. Ct. 1438, 167 L. Ed. 2d 248. And we think it
circumstances. Missouri, 200 U.S., at 522, 26 S. Ct. 268,
equally plain that the Act "speaks directly" to emissions
50 L. Ed. 572 (adjudicating claim though it did not con-
of carbon dioxide from the defendants' plants.
cern "nuisance of the simple kind that was known to the
older common law"); see also D'Oench, Duhme & Co. v. Section 111 of the Act directs the EPA Administra-
FDIC, 315 U.S. 447, 472, 62 S. Ct. 676, 86 L. Ed. 956 tor to list "categories of stationary sources" that "in [her]
(1942) (Jackson, J., concurring) ("federal courts are free judgment . . . caus[e], or contribut[e] significantly to, air
to apply the traditional common-law technique of deci- pollution which may reasonably be anticipated to endan-
sion" when fashioning federal common law). ger public health or welfare." 7411(b)(1)(A). Once
EPA lists a category, the agency must establish standards
We need not address the parties' dispute in this re-
of performance for emission of pollutants from new or
gard. For it is an academic question whether, in the ab-
modified sources within that category. 7411(b)(1)(B);
sence of the Clean Air Act and the EPA actions the Act
see also 7411(a)(2). And, most [*23] relevant here,
authorizes, the plaintiffs could state a federal common
7411(d) then requires regulation of existing sources
law claim for curtailment [*21] of greenhouse gas emis-
within the same category. 7 For existing sources, EPA
sions because of their contribution to global warming.
issues emissions guidelines, see 40 C. F. R. 60.22, .23
Any such claim would be displaced by the federal legis-
(2009); in compliance with those guidelines and subject
lation authorizing EPA to regulate carbon-dioxide emis-
to federal oversight, the States then issue performance
sions.
standards for stationary sources within their jurisdiction,
B 7411(d)(1).
"[W]hen Congress addresses a question previously
7 There is an exception: EPA may not employ
governed by a decision rested on federal common law,"
7411(d) if existing stationary sources of the pol-
the Court has explained, "the need for such an unusual
lutant in question are regulated under the national
exercise of law-making by federal courts disappears."
ambient air quality standard program, 7408-
Milwaukee II, 451 U.S., at 314, 101 S. Ct. 1784, 68 L.
7410, or the "hazardous air pollutants" program,
Ed. 2d 114 (holding that amendments to the Clean Water
7412. See 7411(d)(1).
Act displaced the nuisance claim recognized in Milwau-
kee I). Legislative displacement of federal common law The Act provides multiple avenues for enforcement.
does not require the "same sort of evidence of a clear and See County of Oneida, 470 U.S., at 237-239, 105 S. Ct.
manifest [congressional] purpose" demanded for preemp- 1245, 84 L. Ed. 2d 169 (reach of remedial provisions is
tion of state law. Id., at 317, 101 S. Ct. 1784, 68 L. Ed. important to determination whether statute displaces fed-
2d 114. "'[D]ue regard for the presuppositions of our eral common law). EPA may delegate implementation
embracing federal system . . . as a promoter of democ- and enforcement authority to the States, 7411(c)(1),
racy,'" id., at 316, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (d)(1), but the agency retains the power to inspect and
(quoting San Diego Building Trades Council v. Garmon, monitor regulated sources, to impose administrative pen-
359 U.S. 236, 243, 79 S. Ct. 773, 3 L. Ed. 2d 775 alties for noncompliance, and to commence civil actions
(1959)), does not enter the calculus, for it is primarily the against polluters in federal court. 7411(c)(2), (d)(2),
office of Congress, not the federal courts, to prescribe 7413, 7414. In specified circumstances, the Act imposes
national policy in areas of special federal interest. TVA v. [*24] criminal penalties on any person who knowingly
Hill, 437 U.S. 153, 194, 98 S. Ct. 2279, 57 L. Ed. 2d 117 violates emissions standards issued under 7411. See
(1978). The test for whether congressional legislation 7413(c). And the Act provides for private enforcement.
excludes the declaration [*22] of federal common law is If States (or EPA) fail to enforce emissions limits against
simply whether the statute "speak[s] directly to [the] regulated sources, the Act permits "any person" to bring
question" at issue. Mobil Oil Corp. v. Higginbotham, 436 a civil enforcement action in federal court. 7604(a).
U.S. 618, 625, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978);
If EPA does not set emissions limits for a particular
see Milwaukee II, 451 U.S., at 315, 101 S. Ct. 1784, 68
pollutant or source of pollution, States and private parties
L. Ed. 2d 114; County of Oneida v. Oneida Indian Nation
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Page 7
2011 U.S. LEXIS 4565, *

may petition for a rulemaking on the matter, and EPA's EPA's judgment, we hasten to add, would not escape
response will be reviewable in federal court. See judicial review. Federal courts, we earlier observed, see
7607(b)(1); Massachusetts, 549 U.S., at 516-517, 529, supra, at 11, can review agency action (or a final rule
127 S. Ct. 1438, 167 L. Ed. 2d 248. As earlier noted, see declining to take action) to ensure compliance with the
supra, at 3, EPA is currently engaged in a 7411 rule- statute Congress enacted. As we have noted, see supra,
making to set standards for greenhouse gas emissions at 10, the Clean Air Act directs EPA to establish emis-
from fossil-fuel fired power plants. To settle litigation sions standards for categories of stationary sources that,
brought under 7607(b) by a group that included the "in [the Administrator's] judgment," "caus[e], or con-
majority of the plaintiffs in this very case, the agency tribut[e] significantly to, air pollution which may rea-
agreed to complete that rulemaking by May 2012. 75 sonably be anticipated to endanger public health or wel-
Fed. Reg. 82392. The Act itself thus provides a means to fare." 7411(b)(1)(A). "[T]he use of the word 'judg-
seek limits on emissions of carbon dioxide from domes- ment,'" we explained in Massachusetts, "is [*27] not a
tic power plants -- the same relief the plaintiffs seek by roving license to ignore the statutory text." 549 U.S., at
invoking federal common law. We see no room for a 533, 127 S. Ct. 1438, 167 L. Ed. 248. "It is but a direc-
parallel track. tion to exercise discretion within defined statutory lim-
its." Ibid. EPA may not decline to regulate carbon-
C
dioxide emissions from power plants if refusal to act
The plaintiffs [*25] argue, as the Second Circuit would be "arbitrary, capricious, an abuse of discretion, or
held, that federal common law is not displaced until EPA otherwise not in accordance with law." 7607(d)(9)(A).
actually exercises its regulatory authority, i.e., until it If the plaintiffs in this case are dissatisfied with the out-
sets standards governing emissions from the defendants' come of EPA's forthcoming rulemaking, their recourse
plants. We disagree. under federal law is to seek Court of Appeals review,
and, ultimately, to petition for certiorari in this Court.
The sewage discharges at issue in Milwaukee II, we
do not overlook, were subject to effluent limits set by Indeed, this prescribed order of decisionmaking --
EPA; under the displacing statute, "[e]very point source the first decider under the Act is the expert administra-
discharge" of water pollution was "prohibited unless tive agency, the second, federal judges -- is yet another
covered by a permit." 451 U.S., at 318-320, 101 S. Ct. reason to resist setting emissions standards by judicial
1784, 68 L. Ed. 2d 114 (emphasis deleted). As Milwau- decree under federal tort law. The appropriate amount of
kee II made clear, however, the relevant question for regulation in any particular greenhouse gas-producing
purposes of displacement is "whether the field has been sector cannot be prescribed in a vacuum: as with other
occupied, not whether it has been occupied in a particu- questions of national or international policy, informed
lar manner." Id., at 324, 101 S. Ct. 1784, 68 L. Ed. 2d assessment of competing interests is required. Along
114. Of necessity, Congress selects different regulatory with the environmental benefit potentially achievable,
regimes to address different problems. Congress could our Nation's energy needs and the possibility of eco-
hardly preemptively prohibit every discharge of carbon nomic [*28] disruption must weigh in the balance.
dioxide unless covered by a permit. After all, we each
The Clean Air Act entrusts such complex balancing
emit carbon dioxide merely by breathing.
to EPA in the first instance, in combination with state
The Clean Air Act is no less an exercise of the legis- regulators. Each "standard of performance" EPA sets
lature's "considered judgment" concerning the regulation must "tak[e] into account the cost of achieving [emis-
of air pollution because it permits emissions until EPA sions] reduction and any nonair quality health and envi-
acts. See Middlesex County Sewerage Auth. v. National ronmental impact and energy requirements."
Sea Clammers Ass'n, 453 U.S. 1, 22, n. 32, 101 S. Ct. 7411(a)(1), (b)(1)(B), (d)(1); see also 40 C. F. R.
2615, 69 L. Ed. 2d 435 (1981) [*26] (finding displace- 60.24(f) (EPA may permit state plans to deviate from
ment although Congress "allowed some continued dump- generally applicable emissions standards upon demon-
ing of sludge" prior to a certain date). The critical point stration that costs are "[u]nreasonable"). EPA may "dis-
is that Congress delegated to EPA the decision whether tinguish among classes, types, and sizes" of stationary
and how to regulate carbon-dioxide emissions from sources in apportioning responsibility for emissions re-
power plants; the delegation is what displaces federal ductions. 7411(b)(2), (d); see also 40 C. F. R.
common law. Indeed, were EPA to decline to regulate 60.22(b)(5). And the agency may waive compliance with
carbon-dioxide emissions altogether at the conclusion of emission limits to permit a facility to test drive an "inno-
its ongoing 7411 rulemaking, the federal courts would vative technological system" that has "not [yet] been
have no warrant to employ the federal common law of adequately demonstrated." 7411(j)(1)(A). The Act en-
nuisance to upset the agency's expert determination. visions extensive cooperation between federal and state
authorities, see 7401(a), (b), generally permitting each
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Page 8
2011 U.S. LEXIS 4565, *

State to take the first cut at determining how best to V


achieve EPA emissions standards within its domain, see
The plaintiffs also sought relief under state law, in
7411(c)(1), (d)(1)-(2).
particular, the law of each State where the defendants
It is [*29] altogether fitting that Congress desig- operate power plants. See App. 105, 147. The Second
nated an expert agency, here, EPA, as best suited to serve Circuit did not reach the state law claims because it held
as primary regulator of greenhouse gas emissions. The that federal common law [*31] governed. 582 F.3d at
expert agency is surely better equipped to do the job than 392; see International Paper Co. v. Ouellette, 479 U.S.
individual district judges issuing ad hoc, case-by-case 481, 488, 107 S. Ct. 805, 93 L. Ed. 2d 883 (1987) (if a
injunctions. Federal judges lack the scientific, economic, case "should be resolved by reference to federal common
and technological resources an agency can utilize in cop- law[,] . . . state common law [is] preempted"). In light of
ing with issues of this order. See generally Chevron U.S. our holding that the Clean Air Act displaces federal
A. Inc. v. NRDC, 467 U.S. 837, 865-866, 104 S. Ct. 2778, common law, the availability vel non of a state lawsuit
81 L. Ed. 2d 694 (1984). Judges may not commission depends, inter alia, on the preemptive effect of the fed-
scientific studies or convene groups of experts for ad- eral Act. Id., at 489, 491, 497, 107 S. Ct. 805, 93 L. Ed.
vice, or issue rules under notice-and-comment proce- 883 (holding that the Clean Water Act does not preclude
dures inviting input by any interested person, or seek the aggrieved individuals from bringing a "nuisance claim
counsel of regulators in the States where the defendants pursuant to the law of the source State"). None of the
are located. Rather, judges are confined by a record parties have briefed preemption or otherwise addressed
comprising the evidence the parties present. Moreover, the availability of a claim under state nuisance law. We
federal district judges, sitting as sole adjudicators, lack therefore leave the matter open for consideration on re-
authority to render precedential decisions binding other mand.
judges, even members of the same court.
***
Notwithstanding these disabilities, the plaintiffs pro-
For the reasons stated, we reverse the judgment of
pose that individual federal judges determine, in the first
the Second Circuit and remand the case for further pro-
instance, what amount of carbon-dioxide emissions is
ceedings consistent with this opinion.
"unreasonable," [*30] App. 103, 145, and then decide
what level of reduction is "practical, feasible and eco- It is so ordered.
nomically viable," App. 58, 119. These determinations
would be made for the defendants named in the two law- JUSTICE SOTOMAYOR took no part in the con-
suits launched by the plaintiffs. Similar suits could be sideration or decision of this case.
mounted, counsel for the States and New York City es-
timated, against "thousands or hundreds or tens" of other CONCUR BY: ALITO
defendants fitting the description "large contributors" to
carbon-dioxide emissions. Tr. of Oral Arg. 57. CONCUR

The judgments the plaintiffs would commit to fed- JUSTICE ALITO, with whom JUSTICE THOMAS
joins, concurring in part and concurring in the judgment.
eral judges, in suits that could be filed in any federal dis-
trict, cannot be reconciled with the decisionmaking I concur in the judgment, and I agree with the
scheme Congress enacted. The Second Circuit erred, we Court's displacement analysis on the assumption (which I
hold, in ruling that federal judges may set limits on make for [*32] the sake of argument because no party
greenhouse gas emissions in face of a law empowering contends otherwise) that the interpretation of the Clean
EPA to set the same limits, subject to judicial review Air Act, 42 U.S.C. 7401 et seq., adopted by the major-
only to ensure against action "arbitrary, capricious, . . . or ity in Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct.
otherwise not in accordance with law." 7607(d)(9). 1438, 167 L. Ed. 2d 248 (2007), is correct.
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17

EXHIBIT B
Case 4:05-cv-00329-GKF-PJC Document 2912-2 Filed in USDC ND/OK on 07/06/11 Page 2 of
17

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE NORTHERN DISTRICT OF OKLAHOMA

4 STATE OF OKLAHOMA, ex rel. )


W.A. DREW EDMONDSON, in his )
5 capacity as ATTORNEY GENERAL)
OF THE STATE OF OKLAHOMA, )
6 et al. )
)
7 Plaintiffs, )
vs. )CASE NO. 05-329-GKF-PJC
8 )
TYSON FOODS, INC., et al., )
9 )
)
10 Defendants. )

11

12

13
TRANSCRIPT OF NONJURY TRIAL PROCEEDINGS
14 DECEMBER 22, 2009
BEFORE GREGORY K. FRIZZELL, U.S. DISTRICT JUDGE
15 VOLUME 80, A.M. SESSION

16

17 APPEARANCES:

18

19 For the Plaintiffs: MR. W.A. DREW EDMONDSON


Attorney General
20 MS. KELLY FOSTER
Assistant Attorney General
21 State of Oklahoma
313 N.E. 21st St.
22 Oklahoma City, OK 73105

23

24

25

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
Case 4:05-cv-00329-GKF-PJC Document 2912-2 Filed in USDC ND/OK on 07/06/11 Page 3 of
17

9301

1 (APPEARANCES CONTINUED) MR. M. DAVID RIGGS


MR. DAVID P. PAGE
2 MR. RICHARD T. GARREN
Riggs Abney Neal Turpen
3 Orbison & Lewis
502 W. 6th Street
4 Tulsa, OK 74119

6 MR. ROBERT A. NANCE


MS. SHARON GENTRY
7 Riggs Abney Neal Turpen
Orbison & Lewis
8 5801 Broadway
Extension 101
9 Oklahoma City, OK 73118

10 MR. LOUIS W. BULLOCK


MR. ROBERT BLAKEMORE
11 Bullock Bullock &
Blakemore
12 110 W. 7th, Ste 770
Tulsa, OK 74119
13
MR. FREDERICK C. BAKER
14 MS. ELIZABETH CLAIRE XIDIS
MS. INGRID MOLL
15 Motley Rice LLC
28 Bridgeside
16 P.O. Box 1792
Mount Pleasant, SC 29465
17

18
For Tyson Foods: MR. ROBERT W. GEORGE
19 Tyson Foods, Inc.
2210 West Oaklawn Drive
20 Springdale, AR 72701

21 MR. JAY THOMAS JORGENSEN


MR. THOMAS GREEN
22 MR. MARK HOPSON
MR. GORDON D. TODD
23 Sidley Austin LLP
1501 K St. NW
24 Washington, DC 20005

25

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 (APPEARANCES CONTINUED)

2 For Cargill: MR. JOHN H. TUCKER


MS. THERESA HILL
3 Rhodes Hieronymus Jones
Tucker & Gable
4 100 W. 5th St., Ste 400
Tulsa, OK 74103
5
MR. DELMAR R. EHRICH
6 MS. KRISANN KLEIBACKER LEE
MR. BRUCE JONES
7 Faerge & Benson
90 S. 7th St., Ste 2200
8 Minnaepolis, MN 54402

9 For Simmons Foods: MR. JOHN R. ELROD


MS. VICKI BRONSON
10 Conner & Winters
211 E. Dickson St.
11 Fayetteville, AR 72701

12 For Peterson Farms: MR. A. SCOTT MCDANIEL


MR. PHILIP HIXON
13 MS. NICOLE LONGWELL
MR. CRAIG MIRKES
14 McDaniel Hixon Longwell &
Acord PLLC
15 320 S. Boston, Ste 700
Tulsa, OK 74103
16
For George's: MR. WOODY BASSETT
17 MR. VINCENT O. CHADICK
MR. JAMES GRAVES
18 MS. K.C. TUCKER
MR. GARY WEEKS
19 Bassett Law Firm
P.O. Box 3618
20 Fayetteville, AR 72702

21 For Cal-Maine: MR. ROBERT SANDERS


Young Williams P.A.
22 P.O. Box 23059
Jackson, MS 39225
23
MR. ROBERT P. REDEMANN
24 Perrine McGivern Redemann
Reid Berry & Taylor PLLC
25 P.O. Box 1710
Tulsa, OK 74101
Terri Beeler, RMR,FCRR
United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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9303

1 INDEX

2 WITNESSES ON BEHALF OF THE DEFENDANTS PAGE

4 DR. JOHN CONNOLLY

5 Cont'd Cross-Examination by Mr. Page 9304

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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9304

1 PROCEEDINGS

2 DECEMBER 22, 2009:

3 THE COURT: We are going to rule on two of

4 the 52(c) motions here before we begin this

5 morning. With regard to the federal common law

6 matter, I've refreshed my memory and learned a

7 little bit more about this issue. And it is a live

8 round, using the same reference I've made before,

9 insofar as it appears to be a legitimate issue.

10 Although, once again, the court does not believe

11 that the defendants have demonstrated in a

12 satisfactory way that Congress has occupied the

13 field of nonpoint source pollution through the

14 establishment of a comprehensive regulatory program

15 supervised by an expert administrative agency. The

16 parties here simply haven't fleshed that out

17 thoroughly, and that alone is a rather large issue.

18 It's clear that relative to point source,

19 as the lawyers have stated, that Milwaukee II, found

20 at 451 U.S. 302, 1981, held that the 1972 amendments

21 to the Federal Water Pollution Control Act

22 prohibited every point source discharge unless

23 covered by a permit; it established a comprehensive

24 long-range policy for eliminating pollution.

25 Congress enacted broad legislation that

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 both established permitting procedures and

2 regulations and provided remedies to the states.

3 The states are capable of protecting their interest

4 through the regulatory scheme and, therefore, no

5 federal common law remedy was available to the

6 states.

7 In National Sea Clammers, 453 U.S. 1, also

8 1981, the Supreme Court held that the federal common

9 law of nuisance had been fully preempted in the area

10 of water pollution. But there, the court was

11 dealing with ocean water dumping, and the Marine

12 Protection Research and Sanctuaries Act of 1972 was

13 comprehensive as the statute prohibited that

14 activity.

15 The Seventh Circuit in the case of Illinois

16 v. Outboard Marine Corp., 680 F.2d 473, a 1982 case,

17 stated that the heart of the Supreme Court's

18 decision was the comprehensiveness of the 1972

19 amendments as a solution to the entire problem of

20 water pollution. Once again, the focus was on point

21 source.

22 In International Paper Co. v. Oullette,

23 O-U-L-L-E-T-T-E, 479 U.S. 481, 1987, the Supreme

24 Court recognized that the question of whether state

25 common law was available remained open. The court,

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 again, recognized that the scope of the 1972 Clean

2 Water Act amendments were broad. That the act

3 applied to all point sources in virtually all bodies

4 of waters, that it provided remedies for permit

5 violations, and permitted citizen suits.

6 The court again noted that Congress

7 intended to dominate the field of pollution

8 regulation, and it concluded that the Federal Water

9 Pollution Control Act preempted Vermont nuisance law

10 to the extent that it sought to impose liability on

11 the New York point source.

12 The case that gives the court some pause is

13 the Ninth Circuit case which Mr. Jorgensen has

14 referenced that dealt with the diversion of water

15 from Mono Lake thereby reducing the lake's natural

16 volume and consequently increasing the lake's

17 salinity and ion concentration.

18 The plaintiff, National Audubon Society,

19 brought a claim of water pollution under the federal

20 common law of nuisance. The Ninth Circuit noted

21 that the Supreme Court's statement that federal

22 common law nuisance claims for water pollution are

23 preempted by the Federal Water Pollution Control Act

24 was unequivocal, and it affirmed the district

25 court's ruling that the claim was preempted by the

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 FWPCA.

2 The dissent, Judge Reinhardt noted that

3 under Supreme Court precedent, the water pollution

4 claim was preempted. He noted the language in

5 Milwaukee II that the court had found by virtue of

6 the amendments to the Federal Water Pollution

7 Control Act, that Congress had "occupied the field

8 in the area of water pollution." It was an

9 "all-encompassing" program.

10 Although the statements "arguably amounted

11 to only dicta," Judge Reinhardt recognized the

12 language was unequivocal, and concluded that the

13 court -- the Ninth Circuit was compelled to follow

14 the pronouncements given the strength of the

15 language and the deliberate repetition of the

16 language shortly after the initial holding.

17 The plaintiff points to a couple of Tenth

18 Circuit cases, the first being American Wildlands v.

19 Browner, 260 F.3d 1192, a Tenth Circuit case from

20 2001. The plaintiffs therein challenged the EPA's

21 approval of Montana's water quality standards, which

22 exempted existing activities that were nonpoint

23 source of pollution.

24 The court recognized that nonpoint source

25 discharges are not defined by the Clean Water Act,

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 and that, rather than vest the EPA with authority to

2 control nonpoint sources, Congress required states

3 to develop Water Quality Standards while requiring

4 the Environmental Protection Agency to approve new

5 and revised water quality standards.

6 The court agreed that "nothing in the Clean

7 Water Act demands that a state adopt a regulatory

8 system for nonpoint sources."

9 The court noted that, although the

10 standards set forth in the Clean Water Act apply

11 generally to waters polluted by point and nonpoint

12 sources, that did not mean that states are required

13 to regulate nonpoint sources at the antidegradation

14 stage. Rather, the effect of nonpoint sources on

15 water bodies will be diminished by state adoption of

16 TMDLs for water bodies not meeting state water

17 quality standards.

18 The case did not directly address the

19 question of whether a federal nuisance claim exists

20 in the area of nonpoint source pollution, but it did

21 address the extent of the regulation of nonpoint

22 source pollution.

23 Although the issue is not regulated in

24 great detail, it cannot be said that the area is not

25 regulated at all and, thus, the issue is still, as

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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9309

1 the court says, a live one here.

2 The implementation of water quality

3 standards and TMDLs may be the means by which the

4 Supreme Court could ultimately determine that

5 Congress has chosen to address nonpoint source

6 pollution. So I recognize that the court's ruling

7 today may ultimately not be one adopted by the

8 United States Supreme Court.

9 In Defenders of Wildlife v. EPA, 415 F.3d

10 1121, Tenth Circuit case, 2005, the EPA concluded

11 that New Mexico was not required to limit nonpoint

12 source pollutants so long as it continued to set

13 water quality standards and list waters that failed

14 to meet those standards.

15 In reaching its decision, the Tenth Circuit

16 recognized that the Clean Water Act does not define

17 nonpoint source pollution, and stated that the EPA

18 lacks the authority to control nonpoint source

19 pollution through a permitting process; instead,

20 Congress requires states to develop water quality

21 standards for intrastate waters.

22 It indicated that the EPA's function is to

23 approve or disapprove those standards, and to enact

24 replacement standards if states fail to make

25 required changes. "Congress clearly intended the

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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9310

1 EPA to have a limited non-rulemaking role in the

2 establishment of water quality standards by

3 states."

4 The court further recognized that the

5 "Clean Water Act does not require states to take

6 regulatory action to limit the amount of nonpoint

7 water pollution introduced into its waterways."

8 Again, the Tenth Circuit was not presented

9 with a question of whether the common law of

10 nuisance had been displaced in the area of nonpoint

11 source pollution, but the case does indicate the

12 paucity of any direct or comprehensive regulation of

13 nonpoint source pollution.

14 And in the Second Circuit case that

15 Mr. Jorgensen referenced, Connecticut v. American

16 Electric Power Co., although it does not address the

17 Clean Water Act, it addresses the Clean Air Act, and

18 it does have a useful discussion of displacement.

19 The linchpin -- and there are at least

20 eight factors here, but to cut to the chase here,

21 the linchpin in that Second Circuit case is whether

22 the legislation actually regulates the nuisance at

23 issue, and whether there is a legislated remedy.

24 It is not clear here, and the defendants

25 have not shown the court -- obviously this remains

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 an issue for ultimate determination by the court in

2 findings and conclusions, but the defendants have

3 not shown that the 1987 amendments to the Clean

4 Water Act legislate a remedy or actually regulate

5 the nonpoint source alleged nuisance at issue.

6 With that, the Rule 52(c) motion as to

7 federal common law is denied. Furthermore, the

8 causation motion, Rule 52(c) motion is denied, there

9 being issues of fact sufficient to deny the motion.

10 That, I believe, leaves us with the

11 nuisance claim based on state public law, the

12 statutory claims and the integrator-specific

13 motions. The integrator-specific motions

14 essentially went to causation. I think I can rule

15 on those here this morning as well. Correct?

16 MR. GEORGE: Your Honor, you are correct,

17 they did go to causation.

18 THE COURT: With respect to the

19 integrator-specific motions, those Rule 52(c)

20 motions will also be denied. And we're taking a

21 little closer look at -- what was it, Title 50,

22 Section 4. Interestingly, it was not one of the

23 issues addressed by Judge Eagan in the

24 Eucha-Spavinaw case.

25 Mr. Green, you may proceed.

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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9312

1 MR. GREEN: Sir, I just have a minor little

2 request. It's not that minor, actually, but you

3 were gracious enough to allow us to adjourn at four

4 for the Thanksgiving recess to make these 6 o'clock

5 planes, and we'd love to be able to make the 6

6 o'clock planes tonight as well because it's the last

7 plane out.

8 THE COURT: Any objection?

9 MR. BULLOCK: I think my co-counsel didn't

10 get a 6 o'clock reservation, but we're still not

11 going to object.

12 THE COURT: Very well. Let's proceed.

13 Let's also try to get this -- can this witness be

14 completed here today?

15 MR. PAGE: I'm going to do my best,

16 Your Honor.

17 THE COURT: Well, there's redirect and

18 recross, so let's pick up the pace a little bit.

19 MR. PAGE: Thank you, Your Honor.

20 DR. JOHN CONNOLLY,

21 having been previously duly sworn, was called as a

22 witness and testified as follows:

23 CONTINUED CROSS-EXAMINATION

24 BY MR. PAGE:

25 Q. Good morning, Dr. Connolly.

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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9313

1 A. Good morning, Mr. Page.

2 Q. Would you look at your opinion in your report

3 on page 1-2, sir. Do you have that?

4 A. Yes.

5 Q. Let me read to you your second opinion under

6 Section 1.2. "Phosphorus has minimal impact on the

7 water quality of the Illinois River in Oklahoma."

8 Did I read that correctly?

9 A. Yes.

10 Q. Now, Dr. Connolly, are you saying that the

11 water quality in the Illinois River has not changed

12 over the last 40 to 50 years?

13 A. No.

14 Q. Okay. So do you believe that it has changed

15 over the last 40 to 50 years?

16 A. I've not seen data that allow me to make a

17 determination of the changes that might have

18 occurred over the last 40 to 50 years.

19 Q. So you don't have an opinion as to whether or

20 not the water quality has changed in the IRW over

21 the last 40 to 50 years?

22 A. No.

23 Q. So wouldn't a basis by which you would judge

24 whether or not phosphorus has an impact would be to

25 evaluate water quality changes over time in order to

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 determine whether phosphorus is impacting, in fact,

2 the Illinois River?

3 A. No.

4 Q. Well, how did you reach that conclusion that

5 phosphorus has had a minimal impact on the water

6 quality of the Illinois River?

7 A. Because the impacts attributable to phosphorus

8 largely relate to the growth of suspended algae and

9 the growth of attached algae. The data in the

10 Illinois River show that chlorophyll levels are not

11 particularly high and that there are very few

12 locations in the Illinois River that have attached

13 algae at levels that would be considered nuisance.

14 Q. Okay, sir. So your opinion that I read is

15 limited solely to the Illinois River and does not

16 include locations such as the Caney Creek, Barren

17 Fork or any tributaries to the Illinois River?

18 A. The focus of my analysis was on the Illinois

19 River. I did look at data in Barren Fork and Caney

20 Creek, but my focus really was on the Illinois River

21 and Lake Tenkiller.

22 Q. Do you have an opinion as to whether or not

23 phosphorus has had an impact on the water quality of

24 the other streams and rivers of the Illinois River

25 Watershed other than the Illinois River?

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877
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1 A. The data that I've looked at indicate that on

2 some of the minor tributaries, there are impacts.

3 But other than what I saw in that data, which

4 includes the measurements of chlorophyll, the

5 measurements of phosphorus, the measurements of

6 benthic algae, I did not study specifically any of

7 the tributaries other than the Illinois River.

8 Q. So I guess the answer is no, you don't have an

9 opinion on the others?

10 A. Well, I do to the extent that I've looked at

11 that data and have expressed, for example, in

12 discussing the attached algae that most of the

13 stations even in the small tributaries don't have

14 chlorophyll levels that would be considered a

15 nuisance.

16 Q. Do you agree, sir, or do you believe that the

17 cover of the algae in the small tributaries

18 indicates that phosphorus has had a minimal impact

19 on those waters?

20 A. I think it's variable. There are certainly

21 locations that were sampled that do have algae at

22 nuisance levels, and there are others that do not.

23 Q. Do you think it's a rare occurrence in the IRW

24 that there's a substantial coverage of benthic algae

25 in these streams?

Terri Beeler, RMR,FCRR


United States Court Reporter
333 W. 4th St.
Tulsa, OK 74103 * 918-699-4877