Petition for Writ of Certiorari — Oklahoma, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefMar 28, 2024
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No.
In the Supreme Court of the United States
STATE OF OKLAHOMA, OKLAHOMA DEP’T OF ENVIRONMENTAL QUALITY, AND STATE OF UTAH, PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
RESPONDENTS
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Sean D. Reyes
Attorney General
Stanford E. Purser
Solicitor General
OFFICE OF THE UTAH
ATTORNEY GENERAL
Utah State Capitol
Complex
350 N. State St., Ste. 230
Salt Lake City, UT 84114
Gentner Drummond
Attorney General
Garry M. Gaskins, II
Solicitor General
Jennifer L. Lewis
Deputy Attorney General
OKLAHOMA ATTORNEY
GENERAL’S OFFICE
313 N.E. 21st Street
Okla. City, OK 73105
William L. Wehrum
WEHRUM ENVIRONMENTAL LAW LLC
1629 K St., N.W., Ste. 300
Washington, D.C. 20006
Mithun Mansinghani
Counsel of Record
LEHOTSKY KELLER COHN
LLP
Additional Counsel Listed on Inside Cover
Emily C. Schilling
HOLLAND & HART LLP
222 S. Main St., Ste. 2200
Salt Lake City, UT 84101
629 W. Main St.
Oklahoma City, OK 73102
(512) 693-8350
mithun@lkcfirm.com
Kristina R. Van Bockern
Aaron B. Tucker
HOLLAND & HART LLP
555 Seventeenth St.,
Ste. 3200
Denver, CO 80202
Michael B. Schon
Drew F. Waldbeser
LEHOTSKY KELLER COHN
LLP
200 Mass. Ave. N.W.
Washington, DC 20001
Counsel for Petitioner
State of Utah
Counsel for Petitioners
State of Oklahoma and
Oklahoma Department of
Environmental Quality
QUESTION PRESENTED
Under the Clean Air Act, each state must adopt an implementation plan to meet national standards, which EPA
then reviews for compliance with the Act. See
42 U.S.C. § 7410. In 2023, EPA published disapprovals of
21 states’ plans implementing national ozone standards. It
did so in a single Federal Register notice. The Act specifies that “[a] petition for review of the [EPA’s] action in
approving or promulgating any implementation plan … or
any other final action of the [EPA] under this Act … which
is locally or regionally applicable may be filed only in” the
appropriate regional circuit, while “nationally applicable
regulations … may be filed only in” the D.C. Circuit. 42
U.S.C. § 7607(b)(1). Parties from a dozen states sought judicial review of their respective state plan disapprovals in
their appropriate regional circuits.
The Fourth, Fifth, Sixth, and Eighth Circuits held
that the implementation plan disapprovals of states within
those circuits are appropriately challenged in their respective regional courts of appeals. In the decision below,
the Tenth Circuit held that challenges to the disapprovals
of Oklahoma’s and Utah’s plans can only be brought in the
D.C. Circuit, explicitly disagreeing with the decisions of
its sister circuits.
The question presented is:
Whether a final action by EPA taken pursuant to its
Clean Air Act authority with respect to a single state or
region may be challenged only in the D.C. Circuit because
EPA published the action in the same Federal Register
notice as actions affecting other states or regions and
claimed to use a consistent analysis for all states.
(i)
PARTIES TO THE PROCEEDING
Petitioners filed separate petitions for review of separate agency action in the court of appeals. Petitioners the
State of Oklahoma, by and through its Attorney General,
and the Oklahoma Department of Environmental Quality
challenged EPA’s disapproval of Oklahoma’s state implementation plan. Petitioner the State of Utah, by and
through its Governor, Spencer J. Cox, and its Attorney
General, Sean D. Reyes, challenged EPA’s disapproval of
Utah’s state implementation plan.
The Tenth Circuit procedurally consolidated Oklahoma’s challenge with petitions challenging the same
agency action filed by Oklahoma Gas & Electric Company, Tulsa Cement LLC, d/b/a/ Central Plains Cement
Company LLC, Republic Paperboard Company, and
Western Farmers Electric Cooperative.
The Tenth Circuit also procedurally consolidated
Utah’s challenge with petitions challenging the same
agency action filed by PacifiCorp and Utah Associated
Municipal Power Systems.
Respondent the Environmental Protection Agency
was the respondent in each challenge in the Tenth Circuit.
(ii)
RELATED PROCEEDINGS
1. This Petition arises out of separate petitions for review of agency action that Oklahoma and Utah filed in the
court of appeals seeking review of EPA’s disapproval of
their respective state implementation plans. See Oklahoma v. EPA, No. 23-9514 (10th Cir.); Utah v. EPA, No.
23-9509 (10th Cir.).
2. On May 30, 2023, the Tenth Circuit procedurally
consolidated Oklahoma’s and Utah’s petitions with related challenges to the same agency action. Oklahoma’s
petition was consolidated with petitions filed by Okla. Gas
& Elec. Company, Tulsa Cement LLC, d/b/a/ Central
Plains Cement Company LLC, Republic Paperboard
Company, and Western Farmers Electric Cooperative.
See Okla. Gas & Elec. v. EPA, No. 23-9521 (10th Cir.);
Tulsa Cement LLC v. EPA, No. 23-9533 (10th Cir.); W.
Famers Elec. Coop. v. EPA, No. 23-9534 (10th Cir.).
Utah’s petition was consolidated with petitions filed by
PacifiCorp and Utah Associated Municipal Power Systems. See PacifiCorp v. EPA, No. 23-9512 (10th Cir.);
Utah Assoc. Mun. Power Sys., No. 23-9520 (10th Cir.).
3. Because EPA sought to dismiss or transfer the
above-referenced petitions filed in the Tenth Circuit, the
Tenth Circuit petitioners also filed protective petitions in
the D.C. Circuit. Utah v. EPA, No. 23-1102 (D.C.
Cir.); Oklahoma v. EPA, No. 23-1103 (D.C. Cir.); Okla.
Gas & Elec. Co. v. EPA, No. 23-1105 (D.C. Cir.); Tulsa
Cement LLC v. EPA, No. 23-1106 (D.C. Cir.); W. Farmers
Elec. Coop. v. EPA, No. 23-1107 (D.C. Cir.); PacifiCorp v.
EPA, No. 23-1112 (D.C. Cir.).
4. On February 27, 2024, the Tenth Circuit transferred
the challenges to the D.C. Circuit.
(iii)
TABLE OF CONTENTS
Question Presented ............................................................. i
Parties to the Proceeding .................................................. ii
Related Proceedings ......................................................... iii
Table of Appendices ........................................................... v
Table of Authorities .......................................................... vi
Introduction ........................................................................ 1
Opinion Below ..................................................................... 3
Jurisdiction ......................................................................... 3
Statutory Provisions Involved .......................................... 4
Statement of the Case ........................................................ 4
A. Statutory Background ...................................... 4
B. Procedural History ........................................... 6
C. Decision Below ................................................ 13
Reasons for Granting the Petition ................................. 14
I. The Tenth Circuit’s decision below explicitly
conflicts with the decisions of several other
courts of appeal. .................................................... 15
II. The question of the appropriate venue for
challenges under the Clean Air Act is ripe for
review, important, and frequently recurring. ... 19
III. The Tenth Circuit’s decision is wrong. ............... 30
Conclusion ......................................................................... 35
(iv)
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT, FILED FEBRUARY 27,
2024 ...................................................................................1a
APPENDIX B — STATUTORY EXCERPTS ............20a
(v)
TABLE OF AUTHORITIES
Cases:
Page(s)
Am. Rd. & Transp. Builders Ass’n v. EPA,
705 F.3d 453 (D.C. Cir. 2013) ................. 1, 24, 29, 30-31
AT&T Corp. v. FCC,
970 F.3d 344 (D.C. Cir. 2020) ...................................... 34
ATK Launch Sys., Inc. v. EPA,
651 F.3d 1194 (10th Cir. 2011)..................................... 31
Barnhart v. Thomas,
540 U.S. 20 (2003) ......................................................... 31
Calumet Shreveport Ref., L.L.C. v. EPA,
86 F.4th 1121 (5th Cir. 2023) ....................................... 26
Chevron U.S.A. Inc. v. EPA,
45 F.4th 380 (D.C. Cir. 2022) ................................. 26, 31
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800 (1988) ....................................................... 21
Comm. for a Better Arvin v. EPA,
786 F.3d 1169 (9th Cir. 2015) ...................................... 32
Dalton Trucking, Inc. v. EPA,
808 F.3d 875 (D.C. Cir. 2015) ................................ 26, 29
Encino Motorcars, LLC v. Navarro,
579 U.S. 211 (2016) ....................................................... 33
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) ................................................... 4, 25
Harrison v. PPG Indus., Inc.,
446 U.S. 578 (1980) ......................................... 5, 6, 19, 30
Hertz Corp. v. Friend,
559 U.S. 77 (2010) ............................................... 2, 28, 30
(vi)
Hunt Ref. Co. v. EPA,
90 F.4th 1107 (11th Cir. 2024) ..................................... 26
Kentucky v. EPA,
No. 23-3216 (6th Cir. July 25, 2023) ......... 12, 16, 17, 18
Mercantile Nat’l Bank v. Langdeau,
371 U.S. 555 (1963) ....................................................... 21
Nat. Res. Def. Council v. EPA,
559 F.3d 561 (D.C. Cir. 2009) ...................................... 34
Nat. Res. Def. Council v. EPA,
706 F.3d 428 (D.C. Cir. 2013) ...................................... 33
Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
583 U.S. 109 (2018) ............................................. 3, 20, 28
Nat’l Parks Conservation Ass’n v. McCarthy,
816 F.3d 989 (8th Cir. 2016) ........................................ 31
Navarro Sav. Ass’n v. Lee,
446 U.S. 458 (1980) ................................................... 2, 27
New York v. EPA,
133 F.3d 987 (7th Cir. 1998) ........................................ 24
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ................................................... 21
Oklahoma v. EPA,
93 F.4th 1262 (10th Cir. 2024) ....................................... 3
S. Ill. Power Coop. v. EPA,
863 F.3d 666 (7th Cir. 2017) ........................................ 25
Sierra Club v. EPA,
926 F.3d 844 (D.C. Cir. 2019) ................................ 26, 29
Texas Mun. Power Agency v. EPA,
89 F.3d 858 (D.C. Cir. 1996) ........................................ 26
(vii)
Texas v. EPA,
706 F. App’x 159 (5th Cir. 2017)............................ 25, 29
Texas v. EPA,
829 F.3d 405 (5th Cir. 2016) ...................... 24, 29, 30, 35
Texas v. EPA,
983 F.3d 826 (5th Cir. 2020) ............................ 25, 27, 29
Texas v. EPA,
No. 23-60069, 2023 WL 7204840
(5th Cir. May 1, 2023)............... 10, 11, 16, 17, 18, 22, 23
Train v. Nat. Res. Def. Council, Inc.,
421 U.S. 60 (1975) ....................................................... 4, 5
Travis v. United States,
364 U.S. 631 (1961) ....................................................... 35
Union Elec. Co. v. EPA,
427 U.S. 246 (1976) ......................................................... 5
W. Oil & Gas Ass’n v. EPA,
633 F.2d 803 (9th Cir. 1980) ........................................ 25
W. Virginia Chamber of Com. v. Browner,
166 F.3d 336 (4th Cir. 1998) ........................................ 24
West Virginia v. EPA,
90 F.4th 323 (4th Cir. 2024) ......... 2, 9, 16, 17, 18, 22, 23
Statutes
28 U.S.C. § 1254(1) ............................................................. 4
28 U.S.C. § 2101(e) ............................................................. 4
42 U.S.C. § 7407(a) ............................................................. 5
42 U.S.C. § 7407(b)(1) ........................................................ 6
42 U.S.C. § 7409(a)-(b) ....................................................... 4
(viii)
42 U.S.C. § 7409(d)(1) .................................................. 3, 24
42 U.S.C. § 7410 ............................................... 4, 5-6, 30, 33
42 U.S.C. § 7410(a) ....................................................... 4, 17
42 U.S.C. § 7410(a)(1) ..................................... 3, 5, 6, 10, 24
42 U.S.C. § 7410(a)(2)(D) ......................................... 1, 7, 24
42 U.S.C. § 7410(c)(1) ......................................................... 5
42 U.S.C. § 7410(k)(1) ...................................................... 10
42 U.S.C. § 7410(k)(2) ...................................................... 10
42 U.S.C. § 7410(k)(3) .................................................. 5, 17
42 U.S.C. § 7410(k)(5) ...................................................... 24
42 U.S.C. § 7607(b)(1) ........................... 1, 4, 5, 6, 9, 16, 17,
23, 27, 28, 30, 31, 33
44 U.S.C. § 1510(a)-(b) ..................................................... 34
Rulemaking Notices and Regulations
1 C.F.R. § 8.1 .................................................................... 34
40 C.F.R. § 52.1922(c) ...................................................... 34
40 C.F.R. § 52.2354 ........................................................... 34
63 Fed. Reg. 57,356 (Oct. 27, 1998) ................................. 25
80 Fed. Reg. 65,292 (Oct. 26, 2015) ................................... 6
80 Fed. Reg. 75,706 (Dec. 3, 2015) .................................. 25
85 Fed. Reg. 20,165 (Oct. 11, 2020) ................................. 32
86 Fed. Reg. 68,413 (Dec. 2, 2021) .................................. 32
86 Fed. Reg. 73,129 (Dec. 27, 2021) ................................ 32
87 Fed. Reg. 9,798 (Feb. 22, 2022) .................................... 7
(ix)
87 Fed. Reg. 31,470 (May 24, 2022) .................................. 7
88 Fed. Reg. 9,336 (Feb. 13, 2023) ........................ 8, 25, 34
89 Fed. Reg. 12,666 (Feb. 16, 2024) .................................. 8
Rules
Sup. Ct. R. 11 ................................................................ 3, 19
(x)
INTRODUCTION
Five courts of appeals are in direct and acknowledged
conflict over an important and recurring federal question
about how to interpret the Clean Air Act’s venue provision, 42 U.S.C. § 7607(b)(1). States and industry from
twelve states filed separate challenges to EPA’s disapproval of their respective state’s ozone plan for implementing the Clean Air Act’s “Good Neighbor Provision.”
42 U.S.C. § 7410(a)(2)(D)(i)(I). The Fourth, Fifth, Sixth,
and Eighth Circuits held that venue for those challenges
is appropriate in the regional federal courts of appeal.
But, below, the Tenth Circuit explicitly departed from its
sister circuits and held that exclusive venue for this type
of challenge lies in the D.C. Circuit. Pet. App. 8a-19a. This
Court’s review is needed to resolve the split.
The conflict centers on how to characterize the agency
action being challenged. The Clean Air Act provides that
challenges to “nationally applicable regulations” may “be
filed only” in the D.C. Circuit. 42 U.S.C. § 7607(b)(1). But
challenges to “locally or regionally applicable” actions
“may be filed only in the United States Court of Appeals
for the appropriate circuit.” Id. Under the statute, “EPA’s
‘action in approving or promulgating any implementation
plan’ is the prototypical ‘locally or regionally applicable’
action that may be challenged only in the appropriate regional court of appeals.” Am. Rd. & Transp. Builders
Ass’n v. EPA, 705 F.3d 453, 455 (D.C. Cir. 2013) (Kavanaugh, J.) (quoting 42 U.S.C. § 7607(b)(1)).
The Tenth Circuit held that challenges to EPA’s disapprovals of Oklahoma’s and Utah’s Good Neighbor plans
1
are challenges to a “nationally applicable action” because
EPA combined those disapprovals with the disapprovals
of 19 other states into a single Federal Register notice.
Pet. App. 13a. The Fourth, Fifth, Sixth, and Eighth Circuits reached the opposite conclusion in addressing other
states’ plans—from Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Texas, and West Virginia—
that were disapproved by EPA in the same 21-state Federal Register notice. As the Fourth Circuit explained, the
Clean Air Act does not elevate form over substance: “the
fact that the EPA consolidated its disapprovals in a single
final rule does not, by that fact alone, make its 21 separate
decisions … a single nationally applicable action.” West
Virginia v. EPA, 90 F.4th 323, 330 (4th Cir. 2024).
The confusion over the proper venue for challenges
brought under the Clean Air Act imposes significant burdens on courts and litigants. This Court has repeatedly
recognized the importance of clear jurisdictional and
venue rules. E.g., Navarro Sav. Ass’n v. Lee, 446 U.S. 458,
464 n.13 (1980). Confusion over where to file produces unnecessary “appeals and reversals” and “encourage[s]
gamesmanship.” Hertz Corp. v. Friend, 559 U.S. 77, 94
(2010).
This case demonstrates those concerns. Petitioners
are being forced to litigate in the D.C. Circuit, while challengers from ten other states continue to litigate in the
regional circuits. If this Court waits until final judgment
to resolve this question, party and judicial resources will
necessarily be wasted: either Petitioners will be required
to re-litigate (and courts will have to re-adjudicate) in the
Tenth Circuit, or parties in ten other states will be
2
compelled to do the same in the D.C. Circuit. Review now,
before judgment, is therefore justified, as this Court has
previously recognized. See Nat’l Ass’n of Mfrs. v. Dep’t of
Def., 583 U.S. 109, 119 (2018) (granting certiorari before
judgment to resolve dispute about which court should review challenges under the Clean Water Act).
Moreover, absent this Court’s guidance, venue disputes under the Clean Air Act will continue to recur frequently. States must submit new implementation plans
every time EPA establishes new national standards for
any given air pollutant—standards EPA reviews every
five years. 42 U.S.C. § 7409(d)(1), 7410(a)(1). Challenges
of the kind brought here are therefore common. Meanwhile, venue questions arise in other Clean Air Act contexts, too, which has led to other circuit splits. And given
the immense role of this cooperative federalism statute,
these Clean Air Act cases often involve issues of tremendous importance to states, the economy, critical national
industries, and the public. Repeated and protracted disputes about venue only delay their resolution.
This Court should grant review to end the division
among courts of appeals and the uncertainty over how to
interpret the Clean Air Act’s venue provision.
OPINION BELOW
The decision of the court of appeals (Pet. App.1a-19a)
is was selected for publication and is available at Oklahoma v. EPA, 93 F.4th 1262 (10th Cir. 2024).
JURISDICTION
This petition is filed under Rule 11 of this Court. The
order transferring venue sought to be reviewed was
3
entered by the Tenth Circuit on February 27, 2024. This
Court has jurisdiction to review on a writ of certiorari the
order below under 28 U.S.C. §§ 1254(1) and 2101(e).
STATUTORY PROVISIONS INVOLVED
The text of 42 U.S.C. §§ 7410 and 7607(b)(1) is reproduced in the appendix to this petition.
STATEMENT OF THE CASE
A. Statutory Background
1. The Clean Air Act centers around the “‘core principle’ of cooperative federalism.” EPA v. EME Homer City
Generation, L.P., 572 U.S. 489, 511 n.14 (2014). It does so
by delegating some regulatory responsibilities to EPA
and others to individual states.
The Act delegates to EPA authority to establish
standards that apply nationwide, such as the National
Ambient Air Quality Standards (“NAAQS”). 42 U.S.C.
§ 7409(a)-(b). Meanwhile, the Act gives each state the authority to “implement[], maint[ain], and enforce[]” these
standards through state implementation plans based on
state-specific considerations. Id. § 7410(a); see also Train
v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 79 (1975)
(“[S]o long as the ultimate effect of a State’s choice of
emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its
particular situation.”). States thereby assume “primary
responsibility for assuring air quality within … such State
by submitting an implementation plan for such State
4
which will specify the manner in which [the NAAQS] will
be achieved and maintained.” 42 U.S.C. § 7407(a).
The state implementation plan process involves a
back-and-forth between EPA and the individual State.
“Each State shall … adopt and submit” to EPA a state
implementation
plan
for
“such
State.”
Id.
§ 7410(a)(1). EPA then “shall approve” the plan “if it
meets all of the applicable requirements of” the Act. Id.
§ 7410(k)(3). “The mandatory ‘shall’ makes it quite clear
that the Administrator is not to be concerned with factors
other than those specified.” Union Elec. Co. v. EPA, 427
U.S. 246, 257 (1976). This means that EPA has “no authority to question the wisdom of a State’s choices” in developing a state plan. Train, 421 U.S. at 79; see also Union
Elec. Co., 427 U.S. at 269 (Congress delegated to states,
not EPA, the power to make “legislative choices in regulating air pollution.”). But if EPA validly “finds that a
State has failed to … satisfy the minimum criteria” of the
Act, it may promulgate a federal implementation plan for
that state. 42 U.S.C. § 7410(c)(1).
2. The Clean Air Act provides for judicial review of
EPA’s actions under the Act, vesting original jurisdiction
in the court of appeals. See id. § 7607(b)(1). It then divides
venue, depending on the EPA action challenged, between
the regional courts of appeals and the U.S. Court of Appeals for the District of Columbia Circuit. Id.
The Act provides for review in the regional circuits of
actions under “several specifically enumerated provisions
of the Act,” Harrison v. PPG Indus., Inc., 446 U.S. 578,
584 (1980), including any EPA action “in approving or
promulgating any implementation plan under section
5
7410 of this title,” 42 U.S.C. § 7607(b)(1). In 1977, Congress added to that list a catch-all: also reviewable in the
regional federal appellate courts are “any other final action of the Administrator under [the] Act which is locally
or regionally applicable.” Harrison, 446 U.S. at 584-85
(quoting 42 U.S.C. § 7607(b)(1)).
Meanwhile, the Act states that challenges to certain
other EPA actions “may be filed only in the United States
Court of Appeals for the District of Columbia.” 42 U.S.C.
§ 7407(b)(1). This list includes EPA actions such as
“promulgating any national primary or secondary ambient air quality standard,” “any emission standard,” “any
standard of performance,” or “any other nationally applicable regulations.” Id. Finally, even for actions that must
otherwise be filed in a regional circuit, challenges to those
actions “may be filed only in the [D.C. Circuit] if such action is based on a determination of nationwide scope or
effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.” Id.
B. Procedural History
1. In 2015, EPA revised the NAAQS for ozone, lowering the national air quality standard from 75 to 70 parts
per billion. 80 Fed. Reg. 65,292, 65,293-94 (Oct. 26, 2015).
This triggered the responsibility for each state to develop
an implementation plan for the revised NAAQS. See 42
U.S.C. § 7410(a)(1). One aspect of a state plan is demonstrating compliance with the Act’s “Good Neighbor Provision,” which delegates to each state the task of ensuring
no “emissions activity within the State” will emit “in
6
amounts which will … contribute significantly to nonattainment,” or “interfere with maintenance,” of the
NAAQS by “any other State.” Id. § 7410(a)(2)(D)(i)(I).
States accordingly developed and submitted to EPA their
respective implementation plans to demonstrate compliance with the revised ozone NAAQS, including the Good
Neighbor Provision. In developing these plans, states
worked in close coordination with EPA’s Regional Offices.
See, e.g., No. 23-9514, J.A.424-26 (correspondence between EPA’s Region 6 Office and Oklahoma regarding
Oklahoma’s draft Good Neighbor plan); No. 23-9509,
J.A.0069-73 (correspondence between EPA’s Region 8 Office and Utah regarding Utah’s plan).1
Throughout 2022, EPA proposed to disapprove the
state Good Neighbor plans for 23 states. EPA published
the proposed disapprovals in separate Federal Register
notices, each covering a state or group of states within a
single EPA Region. See, e.g., 87 Fed. Reg. 9,798 (Feb. 22,
2022) (proposed state plan disapproval for Arkansas, Louisiana, Oklahoma, Texas); 87 Fed. Reg. 31,470 (May 24,
2022) (proposed state plan disapproval for Utah). In the
proposed rulemakings, EPA purported to detail why each
state’s plan should be disapproved, individually examining
each state’s specific submission, emissions sources and
trends, and downwind air quality contributions. See
These citations are to the joint appendices filed in the court of appeals. The joint appendix (Dkt. No. 11041131) on the Oklahoma
docket (No. 23-9514) was filed on November 1, 2023. The joint appendix (Dkt. No. 11037455) on the Utah docket (No. 23-9509) was
filed on October 17, 2023.
1
7
generally id. In response, each state, and often regulated
industries within each state, submitted comments to the
proposed disapprovals demonstrating why the state’s particular circumstances showed the state’s plan was factually, analytically, and legally justified. See, e.g., No. 239514, J.A.389-404 (Oklahoma comment letter on EPA’s
proposed Oklahoma state plan disapproval); No. 23-9509,
J.A.0145-48 (Utah comment letter on EPA’s proposed
Utah state plan disapproval); and J.A.0149-357 (Utah industry comment letters).
EPA nonetheless finalized the disapproval of 21 state
Good Neighbor plans, but it did so in a single Federal Register notice. 88 Fed. Reg. 9,336 (Feb. 13, 2023). EPA’s
state-by-state justification for disapproving each of these
plans relied almost entirely on its assessment of the individual state plans in its proposed disapprovals. See, e.g.,
id. at 9,354-61.2
2. A mix of states and industry parties in 12 states
challenged their respective state-plan disapprovals in
their regional circuits.3 In each of those regional courts of
EPA has recently proposed to disapprove the state plans of five
additional states. 89 Fed. Reg. 12,666 (Feb. 16, 2024) (proposed disapproval of state plans of Arizona, Iowa, Kansas, New Mexico, and
Tennessee).
2
See West Virginia v. EPA, No. 23-1418 (4th Cir.); Texas v. EPA,
No. 23-60069 (5th Cir.) (Texas, Louisiana, and Mississippi); Kentucky v. EPA, No. 23-3216 (6th Cir.); Arkansas v. EPA, No. 23-1320
(8th Cir.); Missouri v. EPA, No. 23-1719 (8th Cir.); Allete, Inc. v.
EPA, No. 23-1776 (8th Cir.) (Minnesota); Nevada Cement Co. v.
EPA, No. 23-682 (9th Cir.) (Nevada); Oklahoma v. EPA, No. 233
8
appeals, EPA filed motions to dismiss or transfer venue,
arguing that its state plan disapprovals were either “nationally applicable regulations” or “based on a determination of nationwide scope or effect,” such that review is only
appropriate in the D.C. Circuit under the Act’s judicial review provision (42 U.S.C. § 7607(b)(1)). E.g. Mot. to
Transfer, No. 23-9514, Dkt. No. 10983947 (10th Cir. Mar.
16, 2023); Mot. to Transfer, No. 23-9509, Dkt. No.
10983793 (10th Cir. Mar. 16, 2023). Until the decision below was issued, each of the regional circuits declined to
grant EPA’s motion to transfer venue.
The Fourth Circuit, in a published decision, denied
EPA’s motion to transfer, holding that review of West
Virginia’s challenge to its state plan disapproval was appropriate in that regional court of appeals instead of the
D.C. Circuit. West Virginia, 90 F.4th 323. In an opinion
by Judge Niemeyer, the court ruled that EPA’s disapproval of West Virginia’s plan was not “nationally applicable,” noting that the “focus [is] on the geographical reach
of the EPA’s action”—which, in that case, was EPA’s disapproval of a plan for West Virginia. Id. at 328. It rejected
EPA’s argument that “because [EPA] disapproved of the
[state plans] of 21 States in a consolidated, single agency
action, its determination that the West Virginia [plan] was
inadequate somehow became national,” reasoning that
EPA’s consolidated notice merely “throws a blanket labeled ‘national’ over 21 individual decisions rejecting 21
9514 (10th Cir.); Utah v. EPA, No. 23-9509 (10th Cir.); Alabama v.
EPA, No. 23-11173 (11th Cir.).
9
separate States’ [plans] in an effort to convert each unique
state decision into a national one.” Id. at 330.
“The Clean Air Act,” the Fourth Circuit explained,
“instructs that ‘[e]ach State’ shall submit a [state plan] implementing the air quality standards” and “following each
State’s submission, the EPA approves or disapproves of
each State’s ‘plan’—using the word ‘plan’ in the singular
to indicate that the agency acts on each plan.” Id. (quoting
42 U.S.C. § 7410(a)(1), (k)(1)-(3)). “Thus, the relevant
agency action for our review here is the EPA’s disapproval of West Virginia’s [state plan].” Id. EPA’s action
on West Virginia’s plan was also not “based on a determination of nationwide scope or effect” because in “rejecting
West Virginia’s [plan], it is clear that the EPA focused on
factual data localized to West Virginia and two downwind
States ‘linked’ to West Virginia” and “rejected West Virginia’s analysis of those factual circumstances.” Id. at 328.
That EPA applied a “nationally consistent approach” to
all state plans does not transform its action into a national
regulation, otherwise “there never could be a local or regional action … because every action of the EPA purportedly applies a national standard created by the national
statute and its national regulations.” Id. at 329-30. Judge
Quattlebaum joined Judge Niemeyer’s opinion, but Judge
Thacker dissented, stating that, in her view, “the Final
Rule is clearly nationally applicable.” Id. at 332.
The Fifth Circuit, like the Fourth, held that it was the
proper venue for the challenges filed by Texas, Louisiana,
and Mississippi to their respective plan disapprovals.
Texas v. EPA, No. 23-60069, 2023 WL 7204840, at *3-6
(5th Cir. May 1, 2023). Here again, the court of appeals
10
focused on the text of the Clean Air Act: the Act “makes
clear that the EPA’s relevant actions for purposes of the
present litigation are its various [state plan] denials.” Id.
at *4. So while “the EPA packaged these disapprovals together with the disapprovals of eighteen other States … ,
the EPA’s chosen method of publishing an action isn’t controlling.” Id. “What controls is the [Act]” and the Act “is
very clear: The relevant unit of administrative action here
is the EPA’s individual SIP denials” and, in fact, “the EPA
separately considered and disapproved Texas’s [plan],
Louisiana’s [plan], and Mississippi’s [plan].” Id.
Having determined the relevant EPA action at issue,
the Fifth Circuit had no trouble concluding venue was appropriate in that regional circuit, not the D.C. Circuit.
“[T]he ‘legal impact’ of the three [state plan] disapprovals
is plainly local or regional” given that they “involve only
the regulation of Texas, Louisiana, and Mississippi emission sources and have legal consequences only for Texas,
Louisiana, and Mississippi facilities.” Id. at *5. They are
therefore not nationally applicable actions where review
is only appropriate in the D.C. Circuit. Id. Nor are the actions challenged in that case, the Fifth Circuit held,
“based on a determination of nationwide scope or effect”
because EPA’s decisions “were plainly based on a number
of intensely factual determinations unique to each State.”
Id. (citation and internal marks omitted). Judge Douglas
dissented from the per curiam opinion because she believed EPA’s action was “nationally applicable on its face”
and “was based on a determination of ‘nationwide scope
or effect.’” Id. at *11.
11
The Sixth Circuit ruled in accord with the Fourth and
Fifth, holding that transfer of Kentucky’s challenge to its
state plan disapproval to the D.C. Circuit was not warranted. Kentucky v. EPA, No. 23-3216, slip op. at 2-6 (6th
Cir. July 25, 2023). Relying on the Fifth Circuit’s analysis
of the text of the Act, the Sixth Circuit started by concluding that the relevant “final action” is “EPA’s denial of
Kentucky’s” plan. Id. at 4. The Sixth Circuit next explained that “State Implementation Plans, by their very
nature, concern each State’s plan” and “[b]ecause the denial and legal impact of Kentucky’s [plan] affects only
Kentucky—that is, it does not concern the nation, let
alone any other state—the final action is ‘locally or regionally applicable.’” Id. at 5. And the court rejected EPA’s
claim that its determination was one based on nationwide
scope or effect because “EPA’s disapproval here was
based on a number of intensely factual determinations
unique to Kentucky.” Id. at 5-6 (citation and internal
marks omitted). Judge Cole dissented from the decision
of Judges McKeague and Nalbandian because he believed
EPA’s act was “based on a determination of nationwide
scope or effect,” without opining on whether it was also
“nationally applicable.” Id. at 10-21.
The Eighth Circuit, in separate orders unaccompanied
by an opinion and without dissent, also denied EPA’s motion to transfer challenges to Arkansas’s, Missouri’s, and
Minnesota’s state plan disapprovals. Order, Arkansas v.
EPA, No. 23-1320, Dkt. No. 5269098 (8th Cir. April 25,
2023); Order, Missouri v. EPA, No. 23-1719, Dkt. No.
5281126 (8th Cir. May 26, 2023); Order, Allete, Inc. v.
EPA, No. 23-1776, Dkt. No. 5281229 (8th Cir. May 26,
12
2023). Meanwhile, motions panels in the Ninth, Tenth, and
Eleventh Circuits deferred decision on EPA’s motions to
transfer to a later merits panel in challenges to the state
plan disapprovals of Nevada, Oklahoma, Utah, and Alabama. Order, Nevada Cement Co. v. EPA, No. 23-682,
Dkt. No. 27 (9th Cir. July 3, 2023); Order, Utah v. EPA,
No. 23-9509, Dkt. No. 10994985 (10th Cir. April 27, 2023);
Order, Alabama v. EPA, No. 23-11173, Dkt. No. 24 (11th
Cir. July 12, 2023).
C. Decision Below
Splitting with its sister circuits, the Tenth Circuit merits panel published an opinion ruling that EPA’s disapprovals of the Utah and Oklahoma state plans were “nationally applicable” and ordered the cases transferred to
the D.C. Circuit. Pet. App. 12a-19a. The court below justified this conclusion by stating “Petitioners seek review
of a final rule disapproving [state plans] from 21 states
across the country—spanning eight EPA regions and ten
federal judicial circuits—because those states all failed to
comply with the good-neighbor provision.” Pet. App. 12a.
“And,” the Tenth Circuit continued, “in promulgating that
rule, the EPA applied a uniform statutory interpretation
and common analytical methods, which required the
agency to examine the overlapping and interwoven linkages between upwind and downwind states in a consistent
manner.” Pet. App. 12a-13a.
In so ruling, the Tenth Circuit “recognize[d] that the
Fourth, Fifth, and Sixth Circuits recently reached the
contrary conclusion: each denied the EPA’s motions to
transfer petitions challenging the same final rule at issue
13
here”— also acknowledging in a footnote that the Eighth
Circuit also reached the contrary conclusion. Pet. App.
17a. The court below believed that “all three courts
strayed” from the statute’s text and, “because the Fourth,
Fifth, and Sixth Circuit decisions denying the EPA’s
transfer motions all depart from [the Act’s] plain text and
our binding precedent, we decline to follow them.” Pet.
App. 19a.
REASONS FOR GRANTING THE PETITION
This Court should grant review of the decision below
because it directly conflicts with the rulings of the Fourth,
Fifth, Sixth, and Eighth Circuits on an important and recurring federal question about the appropriate venue for
challenges to EPA actions under the Clean Air Act. The
disagreement among the courts of appeals presented by
this case is exceptionally clear; it was explicitly acknowledged by the court below. Moreover, the issue of venue
for Clean Air Act challenges is of immense importance to
states, the federal government, industry, and the public,
and will continue to arise frequently in cases that extend
well beyond the Good Neighbor Provision. The Court
should decide this question now, before seven courts of
appeals are required to reach merits decisions in this and
related cases concerning the plans of a dozen (or more)
states without knowing the Court’s judgment on the appropriate venue for these cases.
14
I. The Tenth Circuit’s decision below explicitly
conflicts with the decisions of several other courts
of appeal.
Certiorari is warranted because, in the ruling below,
the Tenth Circuit entered a decision in conflict with four
other federal courts of appeals on an important issue. The
Tenth Circuit’s ruling squarely splits with both the result
and reasoning of decisions by the Fourth, Fifth, Sixth, and
Eighth Circuits.
Start with the result of the Tenth Circuit’s decision.
The court below ruled that EPA’s disapprovals of Oklahoma’s and Utah’s plans, which were published in the
same Federal Register notice as 19 other states’ disapprovals, could be reviewed only in the D.C. Circuit. Pet.
App. 19a. Meanwhile, the Fourth, Fifth, Sixth, and Eighth
Circuits—which are reviewing the disapprovals of other
states’ plans contained in the same Federal Register notice—have denied EPA’s motion to transfer those cases to
the D.C. Circuit. Neither the court below nor EPA have
suggested that, for purposes of venue, anything distinguishes the disapprovals of Oklahoma’s and Utah’s plans
from the disapprovals of the other states’ ozone Good
Neighbor plans being reviewed in the regional circuits.
The conflict among courts of appeals is as clean as can be.
The reasoning of the court below also openly splits
with reasoning embraced by the other circuits. The courts
of appeals are divided in their rationales in at least two
respects.
First, the Tenth Circuit believed “the nature of the
agency’s final action” being challenged was “a final rule
15
disapproving [state plans] from 21 states across the country—spanning eight EPA regions and ten federal judicial
circuits.” Pet. App. 12a-13a. In contrast, the Fourth Circuit held “the relevant agency action for our review here
is the EPA’s disapproval of West Virginia’s [implementation plan].” West Virginia, 90 F.4th at 330. The Fourth
Circuit rejected EPA’s attempt, adopted by the Tenth
Circuit, to “throw[] a blanket labeled ‘national’ over 21 individual decisions rejecting 21 separate States’ [plans] in
an effort to convert each unique state decision into a national one.” Id. So, “the fact that the EPA consolidated its
disapprovals in a single final rule does not, by that fact
alone, make its 21 separate decisions included within its
final rule … a single nationally applicable action.” Id.
The Fifth Circuit similarly considered the issue of
what “the relevant ‘action’ is for purposes of § 7607(b)(1)”
and ruled “the [Clean Air Act] makes clear that the EPA’s
relevant actions for purposes of the present litigation are
its various [state plan] denials.” Texas, 2023 WL 7204840,
at *3. The Fifth Circuit acknowledged that, “[y]es, the
EPA packaged these disapprovals together with the disapprovals of eighteen other States,” but the court held
that “the EPA’s chosen method of publishing an action
isn’t controlling.” Id. at *4. “What controls is the [Act]”
and “the [Act] is very clear: The relevant unit of administrative action here is the EPA’s individual [state plan] denials.” Id. The Sixth Circuit adopted the reasoning of the
Fifth Circuit in reaching the same conclusion. Kentucky,
supra, slip op. at 3-4.
This dispute arises because the Tenth Circuit interprets the text of the Clean Air Act differently than the
16
other courts of appeals. The Tenth Circuit believed that
the Federal Register notice containing the disapprovals of
21 state plans was the relevant unit of analysis because
the Act’s judicial review provision speaks of a “final action.” Pet. App. 13a (quoting 42 U.S.C. § 7607(b)(1)). The
court then chided the Fourth, Fifth, and Sixth’s Circuits
from having “strayed” and “depart[ed] from § 7607(b)(1)’s
plain text.” Pet. App. 17a, 19a.
But for those other courts, the Tenth Circuit’s invocation of the words “final action” merely begs the question;
“[t]he relevant unit of administrative action” still must be
determined. Texas, 2023 WL 7204840, at *4. That determination is governed by statute, namely, the provisions
providing “the legal source of the agency’s (here the
EPA’s) authority to take the challenged actions (here the
[state plan] denials).” Id.; contra Pet. App. 16a n.6
(“Whether an EPA action is nationally applicable does not
turn on the ‘type’ of statutory authority delegated to the
agency.”). With respect to state implementation plans, the
Fifth Circuit wrote, the statute speaks in terms of state
and EPA action for “each State” and “the State.” Texas,
2023 WL 7204840, at *4 (quoting 42 U.S.C. § 7410(a),
(k)(3)). And because EPA’s action on a single state’s plan
is indisputably local or regional, not national, venue is appropriate in the regional circuit. Id. The Fourth and Sixth
Circuits concurred in a similar textual analysis as the
Fifth. West Virginia, 90 F.4th at 330 (“[T]he relevant
agency action for our review here is the EPA’s disapproval of West Virginia’s [state plan].”); Kentucky, supra,
slip op. at 3-4 (explaining that the important question is
“determining what ‘final action’ we are dealing with” and
17
concluding that the answer is “EPA’s disapproval of each
state’s [implementation plan]”).
Second, the Tenth Circuit held that EPA’s disapprovals were “nationally applicable” because “EPA applied a
uniform statutory interpretation and common analytical
methods, which required the agency to examine the overlapping and interwoven linkages between upwind and
downwind states in a consistent manner.” Pet. App. 12a13a. The Fourth Circuit rejected precisely that reasoning:
“While national standards — imposed by the statute, regulations, and practices — were indeed applied to reject
West Virginia’s [state plan], the venue provision of the
Clean Air Act does not focus on whether national standards were applied.” West Virginia, 90 F.4th at 329. “If application of a national standard to disapprove a plan were
the controlling factor,” the Fourth Circuit explained,
“there never could be a local or regional action as recognized by the Clean Air Act because every action of the
EPA purportedly applies a national standard created by
the national statute and its national regulations.” Id. at
329-30; see also id. at 328 (explaining that “the venue issue
[does not] turn[] on whether a national rule or standard
was applied to make the determination” because that
would mean “there could be no local or regional action”).
Instead, the Fourth Circuit pointed to EPA’s state-specific disapproval, where “EPA focused on factual data localized to West Virginia” and EPA’s rejection of “West
Virginia’s analysis of those factual circumstances.” Id. at
328. The Fifth and Sixth Circuits are in accord with the
Fourth’s approach here, too. Texas, 2023 WL 7204840, at
*5 & n.5; Kentucky, supra, slip op. at 5-6.
18
In short, the Tenth Circuit has squarely split with the
Fourth, Fifth, Sixth, and Eighth Circuits on both what the
appropriate venue is for these state plan disapproval challenges and how that analysis should be conducted. The decision below openly acknowledges the conflict, “recogniz[ing] that the Fourth, Fifth, and Sixth Circuits recently
reached the contrary conclusion.” This irreconcilable conflict among the courts of appeals requires this Court’s resolution.4
II. The question of the appropriate venue for
challenges under the Clean Air Act is ripe for
review, important, and frequently recurring.
A. Certiorari before judgment is warranted to resolve
the split on venue “because of the importance of determining the locus of judicial review of the actions of EPA [under the Clean Air Act].” Harrison, 446 U.S. at 586 (granting certiorari review before final judgment); see also Sup.
Ct. R. 11. Waiting until the D.C. Circuit decides the merits
of this case will not impact the venue question, while delay
will only result in needless expenditure of state, federal,
industry, and court resources to litigate one or more cases
in the incorrect venue.
This Court has previously granted certiorari before
judgment when “[u]ncertainty surrounding the scope of
While the Tenth Circuit mentioned the Eighth Circuit’s decision
only in passing, Pet. App. 17a n.7, the Eighth Circuit, by denying
EPA’s motion to change venue, also necessarily disagreed with the
Tenth Circuit’s decision that venue is appropriate only in the D.C.
Circuit because the challenged agency action is “nationally applicable.”
4
19
[an] Act’s judicial-review provision” has divided courts
and led to duplicative litigation. Nat’l Ass’n of Mfrs., 583
U.S. at 119. In that case, the Sixth Circuit held it had jurisdiction to review suits brought under the Clean Water
Act, but a single district court with a suit before it challenging the same rulemaking disagreed. Id. This Court
resolved the confusion without waiting for the parallel litigation that had been proceeding across the country to
reach final judgments.
Here, the split is not only more pronounced, but the
need for immediate review is even greater given the posture of this case and the numerous courts of appeals with
state Good Neighbor plan challenges before them. Petitioners here have already fully briefed the merits of their
claims before the Tenth Circuit. If this Court declines review, the parties may engage in further briefing in the
D.C. Circuit, expending the public funds of both state and
federal governments. Oral argument and the decisionmaking process will also consume valuable litigant
and court resources. If this Court were to ultimately determine that the Tenth Circuit should have retained
venue, the delay and duplicated effort from merits adjudication in the D.C. Circuit would be unnecessary.
And, of course, if this Court determines that exclusive
venue lies in the D.C. Circuit, then the ten challenges currently being litigated in the Fourth, Fifth, Sixth, Eighth,
Ninth, and Eleventh Circuits would likewise be for
naught. Review now would serve public policy and conserve judicial and party resources, instead of subjecting
the states and EPA “to long and complex litigation which
may all be for naught if consideration of the preliminary
20
question of venue is postponed until the conclusion of the
proceedings.” Mercantile Nat’l Bank v. Langdeau, 371
U.S. 555, 558 (1963).
Nor would further delay “help[] to explain and formulate the underlying principles this Court … must consider.” Obergefell v. Hodges, 135 S.Ct. 2584, 2597 (2015).
“[Venue] is a separate and independent matter, anterior
to the merits and not enmeshed in the factual and legal
issues comprising the [states’ petitions for review].” Mercantile Nat’l Bank, 371 U.S. at 558. It is unlikely that the
D.C. Circuit would reconsider the venue question after
transfer. See Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988) (“[T]he policies supporting
the [law of the case] doctrine apply with even greater
force to transfer decisions than to decisions of substantive
law; transferee courts that feel entirely free to revisit
transfer decisions of a coordinate court threaten to send
litigants into a vicious circle of litigation.”). And five circuits have already considered the question presented.
This petition therefore presents a clean, well-developed,
and fulsome split, ready for review.
In short, additional delay would produce no benefits,
but it would result in unnecessary delays and tremendous
wasted effort. This Court should grant review now rather
than subject litigants, courts, and the public to those costs.
B. The Court should also grant review because venue
questions arise frequently in the context of important
Clean Air Act disputes. Such disputes include the current voluminous litigation over state Good Neighbor
plans, other disputes about state plan approvals and
21
disapprovals, and still other disputes under the Clean Air
Act.
First, a determination from this Court on the appropriate venue will provide definitive resolution to venue
questions being litigated in multiple circuits. Answering
the question presented will not merely resolve the dispute over the proper venue for separate challenges
brought by Oklahoma and Utah to EPA’s plan disapproval for each state, it will also resolve disputed questions of venue still ongoing in the related Ninth and Eleventh Circuit cases. Nevada Cement Co. v. EPA, No. 23682, Dkt. No. 27 (9th Cir. July 3, 2023) (referring venue
dispute to merits panel); Order, Alabama v. EPA, No.
23-11173, Dkt. No. 24 (11th Cir. July 12, 2023) (same).
And it will confirm (or reject) the decisions to retain
venue in the Fourth, Fifth, Sixth, and Eighth Circuits.
Absent this Court’s intervention, an irreconcilable legal incongruity will persist: Oklahoma and Utah will be
forced to litigate issues relating to their state-specific
emissions and ozone contributions in the D.C. Circuit,
while other states are litigating their local ozone issues
in their regional circuits. Given the massive effect of
EPA cross-state ozone regulation on local economies,
these disputes are too important to be litigated amidst
such a legal haze. See Texas, 2023 WL 7204840, at *10
(explaining the “billions of dollars in compliance costs”
and harms to electric grid reliability imposed by EPA’s
proposed ozone Good Neighbor rulemakings); West Virginia, 90 F.4th at 331 (explaining burden on state regulators and consumers of EPA’s Good Neighbor rulemakings).
22
Granting certiorari would also resolve ongoing disputes about the venue provision’s savings clause, which
directs to the D.C. Circuit review of EPA actions, including those locally and regionally applicable, that are
“based on a determination of nationwide scope or effect.”
42 U.S.C. § 7607(b)(1). The Tenth Circuit did not “address EPA’s alternative argument that the petitions belong in the D.C. Circuit even if the final action is ‘locally
or regionally applicable’ because it ‘is based on a determination of nationwide scope or effect’ made and published by the EPA.” Pet. App. 19a n.8 (quoting
§ 7607(b)(1)). But the Fourth, Fifth, and Sixth Circuits
all directly rejected that argument. See Texas, 2023 WL
7204840, at *5 (holding that because the state plan disapprovals were based on “intensely factual determinations,” they were not based on a determination of nationwide scope or effect); accord West Virginia, 90 F.4th at
330; Kentucky, No. 23-3216, slip op. at 5-6. Meanwhile,
dissenting judges in the Fifth and Sixth Circuits disagreed and would have transferred the cases to the D.C.
Circuit, arguing that EPA’s actions were based on a determination of nationwide scope and effect. Texas, 2023
WL 7204840, at *12-13 (Douglas, J., dissenting); Kentucky, No. 23-3216, slip op. at 12-19 (Cole, J., dissenting).
Review of the question presented will address this ongoing division, too.
Second, a decision from this Court will provide clarity
in innumerable future challenges to state plan approvals
or disapprovals under the Clean Air Act, which occur
whenever EPA revises ambient air quality standards
and issues other regulations requiring state plan
23
revisions. The Clean Air Act requires EPA to promulgate new national ambient air quality standards every
five years for a host of different pollutants. 42 U.S.C.
§ 7409(d)(1). Then, every time a new national standard
for any given pollutant rolls out, States have no more
than three years to revise their state implementation
plans. 42 U.S.C. §§ 7410(a)(1), (a)(2)(D). And each state
has plans for different provisions of the Clean Air Act—
the Good Neighbor Provision is just one of them—each
of which may generate their own litigation and concomitant venue disputes. E.g., Texas v. EPA, 829 F.3d 405,
417-24 (5th Cir. 2016) (retaining venue in regional circuit
in challenge to disapprovals of states’ plans to meet Act’s
“regional haze” requirements); Am. Rd. & Transp.
Builders Ass’n, 705 F.3d at 455-56 (adjudicating venue
in challenge to approval of state plan for nonroad engines
and vehicles); New York v. EPA, 133 F.3d 987, 989-90
(7th Cir. 1998) (retaining venue in regional circuit over
dispute concerning exemption from cross-state ozone
standards spanning states in three different circuits).
Litigation over approvals and disapprovals of portions of
state plans is therefore almost constant. And they further multiply every time EPA jumpstarts the process,
even absent setting a new national standard, by issuing
calls for state plan revisions. See 42 U.S.C. § 7410(k)(5);
e.g., W. Virginia Chamber of Com. v. Browner, 166 F.3d
336 (4th Cir. 1998) (adjudicating venue dispute over call
for cross-state ozone plan revisions).
Litigation over state plans addressing the Good
Neighbor Provision is a prime example of how implementation plan disputes are only increasing in scope and
24
frequency. EPA’s first Good Neighbor rule—the 1998
NOx SIP Call—was limited to Eastern states. 63 Fed.
Reg. 57,356, 57,386 (Oct. 27, 1998); see also 80 Fed. Reg.
75,706, 75,715 (Dec. 3, 2015). EPA extended the program
to additional states in the 2011 Transport Rule. See EME
Homer, 572 U.S. at 499-500. Currently under the 2015
ozone NAAQS, the Good Neighbor Provision now has potential implications as far west as Utah, Nevada, and California. 88 Fed. Reg. at 9,355, 9,358, 9,360. As EPA’s regulatory approach has become more aggressive, vigorous
litigation of EPA’s individual state plan actions has increased. Without clear rules from this Court, venue disputes in challenges to EPA actions related to the Good
Neighbor Provision will continue to recur, creating ongoing uncertainty for litigants.
Third, a decision by this Court will help resolve recurring venue disputes under a variety of other Clean Air
Act provisions. For example, in cases involving attainment designations under Section 107 of the Act, courts
often disregard the substance of the EPA action at issue
and simply rely on the number of states receiving designations, with those attainment designations involving
more states being sent to the D.C. Circuit and those with
fewer states remaining in the local circuits. See, e.g., S.
Ill. Power Coop. v. EPA, 863 F.3d 666, 668 (7th Cir. 2017)
(24 states transferred to D.C.); W. Oil & Gas Ass’n v.
EPA, 633 F.2d 803, 806-07 (9th Cir. 1980) (one state retained in the local circuit); Texas v. EPA, 983 F.3d 826,
832-35 (5th Cir. 2020) (same); Texas v. EPA, 706 F. App’x
159 (5th Cir. 2017) (same).
25
Courts have also addressed venue issues over such
disparate topics as special provisions granting California
a Clean Air Act preemption waiver that may be adopted
by states nationwide, to permitting decisions under Title
V of the Act that advanced a novel interpretation of the
Act, to allocation of pollution entitlements in the Act’s
acid rain program. See, e.g., Dalton Trucking, Inc. v.
EPA, 808 F.3d 875, 877-78 (D.C. Cir. 2015); Sierra Club
v. EPA, 926 F.3d 844, 846 (D.C. Cir. 2019); Chevron
U.S.A. Inc. v. EPA, 45 F.4th 380, 381-82 (D.C. Cir. 2022);
Texas Mun. Power Agency v. EPA, 89 F.3d 858, 865-67
(D.C. Cir. 1996). Similarly, in recent decisions related to
refinery-specific waiver determinations under the Renewable Fuel Standards program, a split has developed
as to whether such decisions should be heard in the local
circuits or in the D.C. Circuit. See Calumet Shreveport
Ref., L.L.C. v. EPA, 86 F.4th 1121, 1130-31 (5th Cir.
2023) (holding that the Fifth Circuit was the appropriate
venue because each waiver decision was based on the
unique facts and circumstances presented by each individual small refinery); Hunt Ref. Co. v. EPA, 90 F.4th
1107, 1110-12 (11th Cir. 2024) (holding the D.C. Circuit
was the appropriate venue because EPA issued a single
notice for all affected small refineries and applied a common decision-making method).
Finally, ensuring that the appropriate disputes remain in the regional circuits, consistent with the will of
Congress expressed in the statutory text, is particularly
important to the states. While the Act requires “[n]ationally applicable actions go to the D.C. Circuit” to “promote[] national uniformity,” it also mandated “locally or
26
regionally applicable actions … go to the regional circuits, which promotes responsiveness and attention to local and regional diversity.” Texas, 983 F.3d at 835. Oklahoma and Utah should, consistent with the Act, be afforded the opportunity to litigate the specific issues relating to their emissions, and the downwind effects on
their bordering neighbors, in courts intimately familiar
with their regional issues, economies, and geographies.
The regional circuit, moreover, will likely be able to resolve issues regarding a few states more expeditiously
than the D.C. Circuit would if all states were lumped into
a consolidation of numerous cases before that distant forum. Such consolidation also often prejudices the ability
of states to bring their unique issues to the fore. Those
unfortunate results will only metastasize across many
aspects of Clean Air Act litigation if EPA is able to repeat its procedural ploy, now endorsed by the Tenth Circuit, of packaging together many disparate local actions
into a single Federal Register notice. Particularly given
the frequency of Clean Air Act disputes in a variety of
contexts, this Court’s definitive interpretation of the
Act’s venue provision will advance important jurisprudential interests.
C. This Court’s review is also warranted because the
confusion over the proper application of 42 U.S.C.
§ 7607(b)(1) unnecessarily wastes judicial and party resources in the present cases and in future ones among the
panoply of Clean Air Act disputes.
“[L]itigation over whether the case is in the right
court is essentially a waste of time and resources.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464 n.13 (1980)
27
(internal quotation marks and citation omitted). Uncertainty on that question produces “appeals and reversals,
encourage[s] gamesmanship, and, again, diminish[es] the
likelihood that results and settlements will reflect a
claim’s legal and factual merits.” Hertz Corp., 559 U.S. at
94.
The persistent conflict over the circuit in which a
Clean Air Act challenge belongs produces all those harms.
Courts of appeals often defer disputed venue questions to
the merits panel, as the Tenth Circuit did here and the
Ninth and Eleventh Circuits did in challenges brought by
other states over their Good Neighbor plans. Supra 12.
Litigants therefore sometimes invest significant time and
resources into briefing a case, only for the court to transfer the case to another circuit. Indeed, here, the transfer
decision came after the parties completely briefed the
merits and a month before oral argument. A decision by
this Court will promote judicial efficiency and streamline
litigation over EPA final actions.
The uncertainty surrounding § 7607(b)(1)’s proper application has also incentivized petitioners to file protective
petitions for review in multiple circuits. See Nat’l Ass’n of
Mfrs., 583 U.S. at 119 (“Uncertainty surrounding the
scope of the Act’s judicial-review provision … prompted
many parties … to file ‘protective’ petitions for review in
various Courts of Appeals to preserve their challenges”).
Petitioners challenging EPA actions related to state plans
regularly file duplicative judicial review petitions in both
the regional circuit and the D.C. Circuit to preserve appeal rights in case they chose venue incorrectly and their
28
“primary” petition gets dismissed rather than transferred.5
In some cases, “primary” petitions for review of the
same EPA action are filed by different parties in multiple
circuits. See Texas, 983 F.3d at 823 (Texas filed petition in
Fifth Circuit while the Sierra Club filed a petition in the
D.C. Circuit). These repetitive petitions require party resources to prepare and impose unnecessary administrative burdens on courts.
Indeed, in this case, EPA has made this duplication of
efforts even worse. Oklahoma and Utah filed protective
petitions in the D.C. Circuit after EPA moved to transfer
or dismiss their Tenth Circuit petitions. EPA then attempted to exploit the uncertainty by asking the D.C. Circuit to adjudicate the venue issue already before the
Tenth Circuit so as to preempt the regional circuit’s adjudication. Utah v. EPA, Nos. 23-1102 et al., EPA Mot. to
Confirm Venue and to Expedite, Dkt. No. 1999261 (D.C.
Cir. May 15, 2023). Thankfully, the D.C. Circuit rejected
that gambit, but not after yet more expenditure of party
and court resources briefing the issue. Id., Petitioners’
Reply in Support of Abeyance, Dkt. No. 2001718 (D.C.
See, e.g., Sierra Club, 926 F.3d at 846 (dismissing case for improper
venue rather than transferring to already open Tenth Circuit
docket); see also id. at 847 (protective petition filed in the Tenth Circuit); Dalton Trucking, Inc., 808 F.3d at 877 (protective petition
filed in D.C. Circuit); Am. Rd. & Transp. Builders, 705 F.3d at 455
(protective petition filed in the Ninth Circuit); Texas, 829 F.3d at
416 n.12 (protective petitions filed in both the Tenth and D.C. Circuits); Texas, 706 Fed. App’x at 159 (protective petition filed in D.C.
Circuit).
5
29
Cir. June 1, 2023); id., Order, Dkt. No. 2005201 (D.C. Cir.
June 27, 2023).
“[A]dministrative simplicity is a major virtue” in applying a venue statute. Hertz Corp., 559 U.S. at 94. This
Court should grant review to provide it.
III. The Tenth Circuit’s decision is wrong.
Review should also be granted to correct the errant
decision below. At bottom, the Tenth Circuit’s decision
grants EPA the power to “transform” the “proper forum
for judicial review” by packaging multiple “regionally applicable” actions into a single Federal Register notice, and
therefore making it a “nationally applicable action.” Pet.
App. 13a. That holding badly misinterprets the Clean Air
Act, and it adopts a view of venue that improperly elevates
the form of an EPA action over its substance.
A. To start, the Clean Air Act’s venue provision “specifically enumerate[s]” a list of EPA actions that are per
se reviewable in the appropriate regional circuit. Harrison, 446 U.S. at 584. In that list are challenges to EPA
“action in approving or promulgating any implementation
plan under section 7410,” such as plans implementing the
Good Neighbor Provision of the Clean Air Act. 42 U.S.C.
§ 7607(b)(1). Thus, “the statutory text places review of
[state implementation plan] approvals or disapprovals in
the regional circuits.” Texas v. EPA, 829 F.3d 405, 419
n.16 (5th Cir. 2016). Not surprisingly, lower courts have
repeatedly described action on whether to approve a state
implementation plan as the “prototypical ‘locally or regionally applicable’ action that may be challenged only in
the appropriate regional court of appeals.” Am. Rd. &
30
Transp. Builders Ass’n, 705 F.3d at 455; Nat’l Parks Conservation Ass’n v. McCarthy, 816 F.3d 989, 993 (8th Cir.
2016) (same); see also Chevron U.S.A. Inc. v. EPA, 45
F.4th 380, 386 (D.C. Cir. 2022) (describing state implementation plan rulemaking as at the far “end of the spectrum” of locally or regionally applicable actions); ATK
Launch Sys., Inc. v. EPA, 651 F.3d 1194, 1199 (10th Cir.
2011) (characterizing a state implementation plan as a
“purely local action” and “an undisputably regional action”).
The Tenth Circuit dismissed this text by emphasizing
the catch-all at the end of the list of actions reviewable in
the regional circuit: “[T]he statute merely provides,” the
Tenth Circuit said, “that ‘[a] petition for review of the
[EPA]’s action in approving or promulgating any implementation plan … or any other final action … (including
any denial or disapproval … ) which is locally or regionally applicable may be filed only in the … appropriate [regional] circuit.’” Pet. App. 11a n.5 (quoting 42 U.S.C.
§ 7607(b)(1)) (emphasis in original). According to the
court below, this “does not … say that any such approval,
promulgation, denial, or disapproval is locally or regionally applicable.” Id. But the Tenth Circuit ignores “the
grammatical ‘rule of the last antecedent,’ according to
which a limiting clause or phrase … should ordinarily be
read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003).
Thus, the inclusion of state implementation plan approvals in the enumerated actions means they are categorically reviewable in the regional circuit regardless of
whether they are locally or regionally applicable. At the
31
very least, this is a strong textual indication that the challenges here are presumptively appropriate in the regional
circuit.
Indeed, EPA concedes that challenges to its state implementation plan approvals belong in the regional circuits. When EPA approved the interstate transport plans
for the 2015 ozone standard for several other states, it did
so in a series of Federal Register notices covering individual states or small groups of states and instructed that
“petitions for judicial review … must be filed in the United
States Court of Appeals for the appropriate circuit.”6
EPA nonetheless argues, and the Tenth Circuit
agreed, that exclusive venue for challenges to the state
Good Neighbor plan disapprovals lies in the D.C. Circuit
because of EPA’s calculated decision to announce 21 state
plan disapprovals in a single Federal Register notice,
claiming the consolidated notice is therefore a “nationally
applicable” action. The only distinction between EPA’s
approval of state plans and disapproval of state plans was
the form of the notice—specifically, the number of states
that EPA included in a single Federal Register notice—
and to EPA, that makes all the difference.
But the statute does not hinge the entire question of
venue on such manipulable formalities. A Federal Register notice does not, by itself, constitute a “final action.” It
See e.g. 86 Fed. Reg. 73,129 (Dec. 27, 2021) (Hawaii); 85 Fed. Reg.
20,165 (Oct. 11, 2020) (Colorado and North Dakota); 86 Fed. Reg.
68,413 (Dec. 2, 2021) (Florida, Georgia, North Carolina, and South
Carolina); see also, e.g., Comm. for a Better Arvin v. EPA, 786 F.3d
1169, 1174 (9th Cir. 2015) (reviewing challenge to approval of California’s implementation plan).
6
32
is no more than a vehicle to communicate agency action.
See Nat. Res. Def. Council v. EPA, 706 F.3d 428, 432 (D.C.
Cir. 2013). Rather, as the Fourth, Fifth, and Sixth Circuits
explained, how EPA packaged its state plan decisions
does not determine the relevant “action”—disapproval of
a single state’s plan or 21 states’ plans—being challenged.
Supra 15-16. That determination instead stems from the
source of EPA’s authority to take the action, which here
is EPA’s authority to approve or disapprove the plan of a
single state under 42 U.S.C. § 7410. Supra 16-17. Such single-state actions are categorically not “nationally applicable.”
B. The Fourth, Fifth, and Sixth Circuits also demonstrated the Tenth Circuit’s error in concluding that Oklahoma and Utah’s plan disapprovals were nationally applicable because EPA applied the same analytic framework
in evaluating all state plans. That cannot be correct, the
Fourth Circuit explained, because it would make virtually
every EPA action national since EPA is always purporting to apply some consistent standard to administer its
portion of a national statute. Supra 17-18. After all, if EPA
applied different standards to different states, that
“[u]nexplained inconsistency’” would be “arbitrary and
capricious.” Encino Motorcars, LLC v. Navarro, 579 U.S.
211, 222 (2016) (citation and internal quotation marks
omitted). Indeed, here, EPA applied the same legal principles and methodology to both the state plan approvals
and the disapprovals. It contended challenges to the former belong in the regional circuits. Supra 32 n.6. But that
cannot be squared with its present argument that
33
application of a national framework for the latter mandates review only in the D.C. Circuit.
Other aspects of EPA’s state plan disapprovals only
corroborate that each disapproval is a separate final action for purposes of the Act’s venue provision. In its Federal Register notice, EPA offered only “a brief, high level
overview of the [state plan] submissions and the EPA’s
evaluation and key bases for disapproval,” while stating
that the “full basis for the EPA’s disapprovals” was to be
found in the sundry proposed rulemakings that were
grouped and signed by EPA’s regional offices. 88 Fed.
Reg. at 9,354; see supra 6-8. Thus, even EPA believed at
one point the true nature of its state plan disapprovals is
local or regional.
And even in its final Federal Register notice, EPA codified Oklahoma’s, Utah’s, and every other state’s plan disapproval in separate sections of the Code of Federal Regulations. 88 Fed. Reg. at 9,381-84. Normally, “[a]gency
statements ‘having general applicability and legal effect’
are to be published in the Code of Federal Regulations,”
while “preamble statements” are not by default considered the final agency action that is subject to judicial review. Nat. Res. Def. Council v. EPA, 559 F.3d 561, 565
(D.C. Cir. 2009) (citing 44 U.S.C. § 1510(a)-(b);
1 C.F.R. § 8.1); see also AT&T Corp. v. FCC, 970 F.3d 344,
350 (D.C. Cir. 2020). Oklahoma challenges the regulation
disapproving its state plan that EPA seeks to codify at
40 C.F.R. § 52.1922(c),
while
Utah
challenges
40 C.F.R. § 52.2354, and neither are challenging regulations applying to any other state. Those state-specific regulations are, on their face, not “nationally applicable,”
34
confirming that the Tenth Circuit erred in concluding that
venue lies exclusively in the D.C. Circuit.
** *
The Tenth Circuit wrongly indulged EPA’s decision to
consciously elevate form over substance. Congress directed that state plan approvals and disapprovals—each
of which reflect “intensely factual determinations” unique
to each state—belong in regional circuits. Texas, 829 F.3d
at 421. Allowing EPA to gerrymander venue by packaging
together a multitude of state plan disapprovals would undermine Congress’s careful allocation. Whatever EPA’s
reasons are to attempt so nakedly to manipulate the forum for these cases, “venue provisions in Acts of Congress
should not be so freely construed as to give the Government the choice of ‘a tribunal favorable’ to it.” Travis v.
United States, 364 U.S. 631, 634 (1961) (citation omitted).
CONCLUSION
This Court should grant the petition.
March 2024
Respectfully submitted,
35
Sean D. Reyes
Attorney General
Stanford E. Purser
Solicitor General
OFFICE OF THE UTAH
ATTORNEY GENERAL
Utah State Capitol
Complex
350 N. State St., Ste. 230
Salt Lake City, UT 84114
Gentner Drummond
Attorney General
Garry M. Gaskins, II
Solicitor General
Jennifer L. Lewis
Deputy Attorney General
OKLAHOMA ATTORNEY
GENERAL’S OFFICE
313 N.E. 21st Street
Okla. City, OK 73105
William L. Wehrum
WEHRUM ENVIRONMENTAL LAW LLC
1629 K St., N.W., Ste. 300
Washington, D.C. 20006
Mithun Mansinghani
Counsel of Record
LEHOTSKY KELLER COHN
LLP
629 W. Main St.
Oklahoma City, OK 73102
(512) 693-8350
mithun@lkcfirm.com
Emily C. Schilling
HOLLAND & HART LLP
222 S. Main St., Ste. 2200
Salt Lake City, UT 84101
Kristina R. Van Bockern
Aaron B. Tucker
HOLLAND & HART LLP
555 Seventeenth St.,
Ste. 3200
Denver, CO 80202
Counsel for Petitioner
State of Utah
Michael B. Schon
Drew F. Waldbeser
LEHOTSKY KELLER COHN
LLP
200 Mass. Ave. N.W.
Washington, DC 20001
Counsel for Petitioners
State of Oklahoma and
Oklahoma Department of
Environmental Quality
36
APPENDIX
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT, FILED FEBRUARY 27,
2024 ...................................................................................1a
APPENDIX B — STATUTORY EXCERPTS ............20a
i
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT, FILED FEBRUARY 27, 2024
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
February 27, 2024, Filed
No. 23-9514
STATE OF OKLAHOMA, BY AND THROUGH
ITS ATTORNEY GENERAL; GENTNER F
DRUMMOND; OKLAHOMA DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY;
MICHAEL S. REGAN, ADMINISTRATOR, UNITED
STATES ENVIRONMENTAL PROTECTION
AGENCY,
Respondents.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
2a
Appendix A
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
No. 23-9521
OKLAHOMA GAS & ELECTRIC COMPANY,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL S.
REGAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
3a
Appendix A
No. 23-9533
TULSA CEMENT LLC, D/B/A CENTRAL
PLAINS CEMENT COMPANY LLC; REPUBLIC
PAPERBOARD COMPANY LLC,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL S.
REGAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
4a
Appendix A
No. 23-9534
WESTERN FARMERS ELECTRIC COOPERATIVE,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL S.
REGAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
No. 23-9509
STATE OF UTAH, BY AND THROUGH ITS
GOVERNOR, SPENCER J. COX, AND ITS
ATTORNEY GENERAL, SEAN D. REYES,
5a
Appendix A
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL S.
REGAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
No. 23-9512
PACIFICORP; DESERET GENERATION &
TRANSMISSION CO-OPERATIVE; UTAH
MUNICIPAL POWER AGENCY,
Petitioners,
6a
Appendix A
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL S.
REGAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
No. 23-9520
UTAH ASSOCIATED MUNICIPAL POWER
SYSTEMS,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL S.
7a
Appendix A
REGAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
SIERRA CLUB; HEALTHY ENVIRONMENT
ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL
DIVERSITY; DOWNWINDERS AT RISK; UTAH
PHYSICIANS FOR A HEALTHY ENVIRONMENT;
SOUTHERN UTAH WILDERNESS ALLIANCE;
CLEAN AIR TASK FORCE,
Amici Curiae.
Petitions for Review of Orders From the
Environmental Protection Agency. (EPA Nos. EPAR08-OAR-2022-315 & EPA-R06-OAR-2021-0801 &
EPA-HQ-OAR-2021-0663).
Submitted without oral argument:*
Before MORITZ, EBEL, and ROSSMAN, Circuit Judges.
MORITZ, Circuit Judge.
* A fter examining the motions, responses, replies, and
supplemental authority, this panel has determined unanimously that
oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
8a
Appendix A
In a February 2023 final rule, the U.S. Environmental
Protection Agency (EPA) disapproved state implementation
plans (SIPs) from 21 states across the country because
those states all failed to adequately address their
contributions to air-quality problems in downwind states.
These seven petitions seek review of that final rule:
Oklahoma and various industry groups challenge the
EPA’s decision to disapprove Oklahoma’s SIP; Utah and
other industry groups challenge the disapproval of Utah’s
SIP. But the EPA has moved to dismiss or transfer the
petitions to the D.C. Circuit under the Clean Air Act’s
judicial-review provision, 42 U.S.C. § 7607(b)(1), which
assigns to the D.C. Circuit any petition seeking review of
a “nationally applicable” agency action. And because we
agree with the EPA that the challenged rule is nationally
applicable, we grant the EPA’s motions in part, to transfer
the petitions to the D.C. Circuit, and thus do not reach
the merits.
Background
The Clean A ir Act establishes “a cooperativefederalism approach to regulate air quality.” U.S.
Magnesium, LLC v. EPA, 690 F.3d 1157, 1159 (10th Cir.
2012). The Act directs the EPA to establish and periodically
revise National Ambient Air Quality Standards (NAAQS),
which represent “the maximum airborne concentration[s]
of [certain air] pollutant[s] that the public health can
tolerate.” West Virginia v. EPA, 597 U.S. 697, 707, 142 S.
Ct. 2587, 213 L. Ed. 2d 896 (2022) (quoting Whitman v.
Am. Trucking Ass’ns, 531 U.S. 457, 465, 121 S. Ct. 903, 149
L. Ed. 2d 1 (2001)). After the EPA revises or sets a new air-
9a
Appendix A
quality standard, the agency must designate geographic
regions around the country as areas of “attainment” or
“nonattainment” (or label them “unclassifiable”). 42 U.S.C.
§ 7407(d)(1); see also EPA v. EME Homer City Generation,
L.P., 572 U.S. 489, 498, 134 S. Ct. 1584, 188 L. Ed. 2d
775 (2014). The burden then shifts to the states to each
adopt and submit for the EPA’s approval a SIP that will
implement, maintain, and enforce the NAAQS within its
boundaries. See 42 U.S.C. § 7410(a)(1); EME Homer City,
572 U.S. at 498. But because air pollutants travel with the
wind, “heedless of state boundaries,” emissions in upwind
states can threaten a downwind state’s ability to attain and
maintain the NAAQS. EME Homer City, 572 U.S. at 496.
To tackle this complex interstate pollution problem, the
Act includes a good-neighbor provision requiring each SIP
to prohibit emissions that will “contribute significantly to
nonattainment” or “interfere with maintenance” in any
other state. § 7410(a)(2)(D)(i).
In 2015, the EPA tightened the NAAQS for ozone. See
National Ambient Air Quality Standards for Ozone, 80
Fed. Reg. 65292 (Oct. 26, 2015). This revision triggered
each state’s duty to submit a SIP to implement the 2015
ozone NAAQS. See § 7410(a)(1). In February 2023, the
EPA issued a final rule disapproving SIPs submitted
by 21 states because those states all failed to meet their
good-neighbor obligations. See Air Plan Disapprovals;
Interstate Transport of Air Pollution for the 2015
8-Hour Ozone National Ambient Air Quality Standards,
88 Fed. Reg. 9336 (Feb. 13, 2023) [hereinafter Air Plan
10a
Appendix A
Disapprovals]. 2 In evaluating these SIPs, the EPA applied
a four-step framework it developed to implement the goodneighbor provision. See id. at 9338. Under this framework,
the EPA (1) identifies downwind areas expected to have
problems attaining or maintaining the relevant NAAQS;
(2) determines which upwind states contribute to these
identified problems in amounts sufficient to link them
to the downwind air-quality problems; (3) identifies the
emissions reductions necessary to eliminate each linked
upwind state’s significant contribution to downwind
nonattainment through a multifactor analysis; and
(4) adopts enforceable control measures to achieve those
reductions. Id. In applying the framework, the EPA also
considered any alternative approach states proposed in
their SIPs “with an eye to ensuring national consistency.”
Id. at 9338, 9381.
Here, two such states—Oklahoma and Utah, joined
by various industry groups—have petitioned for review
of the final rule, challenging the EPA’s decision to
disapprove their SIPs. The EPA responded by moving to
dismiss or transfer the petitions to the D.C. Circuit under
§ 7607(b)(1). 3 We stayed the Oklahoma and Utah SIP
2. We note that as to two of these 21 states, Minnesota and
Wisconsin, the EPA partially approved and partially disapproved the
proposed SIPs. See Air Plan Disapprovals, 88 Fed. Reg. at 9336, 9354.
3. Utah and its industry groups suggest in a footnote that the
EPA’s motion to dismiss their petitions is untimely. In support,
they note that under Tenth Circuit Rule 27.3(A)(3)(a), a motion to
dismiss “should be filed within 14 days after the notice of appeal is
filed, unless good cause is shown.” But we agree with the EPA that
it has shown good cause for filing its March 16, 2023 motion slightly
11a
Appendix A
disapprovals pending our review and referred the EPA’s
motions to the panel assigned to hear these cases on their
merits.
Analysis
The EPA argues that we must dismiss or transfer
the petitions to the D.C. Circuit under the Clean Air
Act’s judicial-review provision, which divides reviewable
EPA actions into three categories and designates the
proper forum for each.4 See § 7607(b)(1). It provides that
a petition for review of a “nationally applicable” final
action “may be filed only in [the D.C. Circuit].” Id. By
contrast, a petition for review of a “locally or regionally
applicable” final action “may be filed only in the . . .
appropriate [regional] circuit.”5 Id. But if that “locally or
more than 14 days after Utah and its industry groups petitioned for
review on February 13 and 23, 2023: various petitioners have sought
review of the same final rule in regional circuit courts across the
country, and the “EPA has acted as expeditiously as practicable in
moving to [dismiss or] transfer these cases [to the D.C. Circuit] in a
coordinated fashion.” EPA Utah Mot. 2 n.1.
4. We need not decide whether § 7607(b)(1) is a jurisdictional
or venue provision. See ATK Launch Sys., Inc. v. EPA, 651 F.3d
1194, 1196 n.1 (10th Cir. 2011). For our purposes, it is enough that
the provision is mandatory and that the EPA invokes it here. See
Eberhart v. United States, 546 U.S. 12, 19, 126 S. Ct. 403, 163 L.
Ed. 2d 14 (2005) (explaining that nonjurisdictional claim-processing
rules “assure relief to a party properly raising them”).
5. We reject petitioners’ cursory suggestion that § 7607(b)(1),
by its text, assigns all petitions challenging a SIP disapproval to
the regional circuits. The statute merely provides that “[a] petition
12a
Appendix A
regionally applicable” action “is based on a determination
of nationwide scope or effect” and if the EPA, in taking
that action, “finds and publishes that such action is based
on such a determination,” then the petition “may be filed
only in the [D.C. Circuit].” Id.
Under the statute’s plain text, then, whether a petition
for review belongs in the D.C. Circuit turns exclusively
on the nature of the challenged agency action. See ATK
Launch Sys., 651 F.3d at 1197. We must therefore ask
whether the action itself is “nationally applicable” or
“locally or regionally applicable.” Id. (quoting § 7607(b)
(1)). And in answering that question, we look only to the
face of the action, not its practical effects or the scope of
the petitioner’s challenge. Id.
On its face, the final EPA action being challenged here
is nationally applicable. Petitioners seek review of a final
rule disapproving SIPs from 21 states across the country—
spanning eight EPA regions and ten federal judicial
circuits—because those states all failed to comply with
the good-neighbor provision. See Air Plan Disapprovals, 88
Fed. Reg. at 9380. And in promulgating that rule, the EPA
applied a uniform statutory interpretation and common
analytical methods, which required the agency to examine
for review of the [EPA]’s action in approving or promulgating any
implementation plan . . . or any other final action . . . (including any
denial or disapproval . . .) which is locally or regionally applicable
may be filed only in the . . . appropriate [regional] circuit.” § 7607(b)
(1) (emphasis added). It does not, as petitioners assert, say that any
such approval, promulgation, denial, or disapproval is locally or
regionally applicable.
13a
Appendix A
the overlapping and interwoven linkages between upwind
and downwind states in a consistent manner. Id. Because
a final action with these features is “nationally applicable”
under § 7607(b)(1), judicial review is proper only in the
D.C. Circuit. See ATK Launch Sys., 651 F.3d at 1197.
Seeking to avoid this conclusion, petitioners urge
us to view the 21 SIP disapprovals in the final rule
as separate, locally or regionally applicable agency
actions. They maintain that each of their seven petitions
challenges just one such action: either the Oklahoma SIP
disapproval or Utah SIP disapproval. Those final SIP
disapprovals, petitioners say, turned on state-specific
facts and grew out of several proposed rules signed by
regional administrators. And in petitioners’ view, the EPA
cannot transform a locally or regionally applicable SIP
disapproval into a nationally applicable action by deciding
to “packag[e] it together with 20 other SIP disapprovals”
in a single final rule. Utah Resp. 13.
But petitioners’ arguments collide with § 7607(b)(1)’s
plain text, which directs courts to consider only the face
of the “final action,” establishing an action-focused method
for determining the proper forum for judicial review. It is
simply not material to the analysis that the EPA issued
several proposed rules or that it could have chosen to
issue standalone final SIP disapprovals. What matters is
the nature of the agency’s final action. See ATK Launch
Sys., 651 F.3d at 1197. And here, that action is a nationally
applicable final rule, signed by the EPA administrator,
disapproving SIPs from 21 states across the country—not
just one—because those states failed to meet their goodneighbor obligations.
14a
Appendix A
Nor is it material that petitioners each purport to
challenge only one such SIP disapproval. By its terms,
§ 7607(b)(1) “assigns to the D.C. Circuit all challenges
to ‘nationally applicable [final actions],’ not, for instance,
all national challenges or all challenges that will have a
national effect.” Id. (quoting § 7607(b)(1)). Thus, we have
made clear that “the manner in which a petitioner frames
[their] challenge” does not “alter the court in which the
[petition] belongs”; “[t]he nature of the [agency action],
not the challenge, controls.” Id. And we are not alone in
making this unremarkable observation. See, e.g., Hunt
Refin. Co. v. EPA, 90 F.4th 1107, 1110 (11th Cir. 2024)
(“When deciding whether a final action is ‘nationally
applicable,’ we begin by ‘analyzing the nature of the EPA’s
action, not the specifics of the petitioner’s grievance.”
(quoting RMS of Ga., LLC v. EPA, 64 F.4th 1368, 1372
(11th Cir. 2023))); S. Ill. Power Coop. v. EPA, 863 F.3d 666,
670 (7th Cir. 2017) (“Under the straightforward (if wordy)
statutory text [of § 7607(b)(1)], venue depends entirely
on—and is fixed by—the nature of the agency’s action;
the scope of the petitioner’s challenge has no role to play
in determining venue.”); Sierra Club v. EPA, 926 F.3d
844, 849, 441 U.S. App. D.C. 376 (D.C. Cir. 2019) (“The
court need look only to the face of the agency action, not
its practical effects, to determine whether an action is
nationally applicable.”).
We applied this action-focused approach in ATK
Launch Systems. There, the petitioners sought review
of a final EPA rule listing attainment and nonattainment
designations for the NAAQS for fine particulate matter.
651 F.3d at 1195. Although the petitions challenged the
15a
Appendix A
nonattainment designations of only two counties in Utah,
the rule “enumerate[d] designations for areas across
the country.” Id. at 1195-96. The EPA moved to dismiss
or transfer the petitions under § 7607(b)(1), arguing
that they belonged in the D.C. Circuit because the rule
was nationally applicable. Id. at 1196-97. We agreed,
explaining the statute “makes clear that this court must
analyze whether the [final action] itself is nationally
applicable, not whether the effects complained of or
the petitioner’s challenge to that [action] is nationally
applicable.” Id. at 1197. Because the rule there applied
“a uniform process and standard across the country”
and “reache[d] geographic areas from coast to coast,”
we held that it was nationally applicable and therefore
transferred the petitions to the D.C. Circuit. Id. at 119798, 1200; see also Hunt, 90 F.4th at 1110-11 (holding
that two EPA final actions were “nationally applicable”
because they denied 105 small-refinery exemptions to
refineries across the nation and because EPA applied
“new statutory interpretation and analytical framework
that is applicable to all small refineries no matter their
location or market”); S. Ill. Power Coop., 863 F.3d at 671
(holding that similar air-quality designation rule was
“nationally applicable” because it was “a final rule of
broad geographic scope” and “promulgated pursuant to
a common, nationwide analytical method,” even though
petitioners challenged only EPA’s designation of one
Illinois county as nonattainment area). Here, too, the
final rule is nationally applicable: it applies a consistent
statutory interpretation and uniform analytical methods
16a
Appendix A
to disapprove SIPs from 21 states around the country.6
See Air Plan Disapprovals, 88 Fed. Reg. at 9380. So any
challenge to that rule belongs in the D.C. Circuit. See
§ 7607(b)(1).
6. Petitioners attempt to distinguish ATK Launch Systems and
Southern Illinois Power Cooperative by focusing on the nature of
the statutory authority under which the EPA took the challenged
actions. They highlight that the Clean Air Act assigns to the EPA
the responsibility to make air-quality designations, and the states
merely offer recommendations on how to designate areas within their
boundaries. See § 7407(d)(1)(A)-(B). By contrast, petitioners note, the
statute delegates to the states the responsibility to craft SIPs, and
the EPA must approve such a plan if the agency determines that it is
complete and meets all applicable requirements. See § 7410(a), (k). So
according to petitioners, the EPA’s authority “differ[s] significantly”
when the agency makes air-quality designations than when it
approves or disapproves SIPs, with the EPA taking a more back-seat
role when reviewing SIPs. Utah Resp. 19. But we discern no material
distinction here. Whether an EPA action is nationally applicable does
not turn on the “type” of statutory authority delegated to the agency,
id. at 22; again, it depends entirely on the nature of the agency’s
action, ATK Launch Sys., 651 F.3d at 1197. Thus, as the EPA points
out, it is appropriate to challenge in a regional circuit court even a
final action that sets air-quality designations if that action applies
only locally or regionally. See, e.g., Texas v. EPA, 983 F.3d 826, 832
(5th Cir. 2020) (holding that final rule establishing attainment and
nonattainment designations for counties in Texas was “‘locally or
regionally applicable’ because it [wa]s directed only at . . . contiguous
Texas counties” (quoting § 7607(b)(1))). But when a final action
concerns states around the country and applies a common analytical
method—as in ATK Launch Systems, Southern Illinois Power
Cooperative, and this case—then the action is nationally applicable.
17a
Appendix A
We recognize that the Fourth, Fifth, and Sixth Circuits
recently reached the contrary conclusion: each denied
the EPA’s motions to transfer petitions challenging the
same final rule at issue here.7 See Texas v. United States
EPA, No. 23-60069, 2023 U.S. App. LEXIS 13898, 2023
WL 7204840, at *1 (5th Cir. May 1, 2023) (unpublished);
Kentucky v. United States EPA, No. 23-3216, 2023 U.S.
App. LEXIS 18981 (6th Cir. July 25, 2023); West Virginia
v. EPA, 90 F.4th 323, 331 (4th Cir. 2024). But in our view,
all three courts strayed from § 7607(b)(1)’s text and
instead applied a petition-focused approach that we and
other circuits have rejected. Indeed, the Fifth Circuit
conceded that its own precedent recognizes Ҥ 7607(b)
(1)’s use of ‘action’ means ‘the rule or other final action
taken by the agency that the petitioner seeks to prevent
or overturn.’” Texas, 2023 U.S. App. LEXIS 13898,
2023 WL 7204840, at *3-4 (quoting Texas v. EPA, 829
F.3d 405, 419 (5th Cir. 2016)). Nevertheless, rather than
focusing its analysis on the face of the rule as is required,
the Fifth Circuit focused on the nature of the petitions
before it—which each challenged a single SIP disapproval
contained in the final rule—to conclude that “the relevant
unit of administrative action” was each individual SIP
disapproval and that such disapprovals were “locally or
regionally applicable.” 2023 U.S. App. LEXIS 13898,
[WL] at *4. The Fourth and Sixth Circuits followed suit.
See Kentucky, 2023 U.S. App. LEXIS 18981 (following
Texas and wrongly characterizing “EPA’s [disapproval] of
Kentucky’s SIP,” not the final rule itself, as the relevant
7. The Eighth Circuit also denied the EPA’s transfer motions,
but it simply issued summary orders containing no analysis. See, e.g.,
Arkansas v. EPA, No. 23-1320 (8th Cir. Apr. 25, 2023).
18a
Appendix A
“final action”); West Virginia, 90 F.4th at 330-31 (joining
Texas and West Virginia and improperly framing “the
relevant agency action” as “EPA’s disapproval of West
Virginia’s SIP”).
A ll three decisions generated strong dissents
highlighting critical flaws in the majority opinions. In West
Virginia, for example, the dissent sharply criticized the
majority opinion for “jettison[ing the well-established]
analysis altogether and instead look[ing] to the nature of
West Virginia’s challenge to hold that the [f]inal [r]ule is
locally applicable.” 90 F.4th at 334 (Thacker, J., dissenting).
The dissent further pointed out that the decisions from
the Fifth and Sixth Circuits likewise “depart[ed] from
all relevant precedent,” including our decision in ATK
Launch Systems, “without adequate justification or
explanation.” Id. at 333-35 ; see also Kentucky, 2023 U.S.
App. LEXIS 18981 (Cole, J., dissenting) (relying on ATK
Launch Systems and other cases to explain that majority’s
“limiting [of] the ‘action’ to Kentucky’s state-specific
challenge is inappropriate” when “the ‘scope of the [final
rule]’ is much broader” (quoting Nat. Res. Def. Council v.
Thomas, 838 F.2d 1224, 1249, 267 U.S. App. D.C. 274 (D.C.
Cir. 1988))); Texas, 2023 U.S. App. LEXIS 13898, 2023
WL 7204840, at *11-12 (Douglas, J., dissenting) (same).
Moreover, this misdirected approach may well result in
ten regional circuit courts ruling on issues arising from
the same nationwide EPA rule, thereby defeating the
statute’s purpose to centralize judicial review of nationally
applicable actions in the D.C. Circuit. See Texas, 2023 U.S.
App. LEXIS 13898, 2023 WL 7204840, at *13 (Douglas,
J., dissenting); Kentucky, 2023 U.S. App. LEXIS 18981
(Cole, J., dissenting).
19a
Appendix A
In short, because the Fourth, Fifth, and Sixth Circuit
decisions denying the EPA’s transfer motions all depart
from § 7607(b)(1)’s plain text and our binding precedent,
we decline to follow them. See Hunt, 90 F.4th at 111113 (distinguishing Texas and Kentucky and further
disagreeing with Calumet Shreveport Refining, LLC
v. EPA, 86 F.4th 1121 (5th Cir. 2023), in which the Fifth
Circuit held that two EPA final actions denying 105 smallrefinery exemptions were locally or regionally applicable).
And applying § 7607(b)(1) as written, we readily conclude
that these petitions belong in the D.C. Circuit because they
seek review of a nationally applicable final rule. 8
Conclusion
Because petitioners seek review of a nationally
applicable final rule, we grant the EPA’s motions to dismiss
or transfer in part and transfer the petitions to the D.C.
Circuit.
8. Given this conclusion, we need not address the EPA’s
alternative argument that the petitions belong in the D.C. Circuit
even if the final action is “locally or regionally applicable” because
it “is based on a determination of nationwide scope or effect” made
and published by the EPA. § 7607(b)(1).
20a
B
APPENDIX B —Appendix
STATUTORY
EXCERPTS
42 U.S.C. § 7607(B)(1)
Administrative proceedings and judicial review
(b) Judicial Review
(1) A petition for review of action of the Administrator
in promulgating any national primary or secondary
ambient air quality standard, any emission standard
or requirement under section 7412 of this title, any
standard of performance or requirement under
section 7411 of this title,, any standard under section
7521 of this title (other than a standard required to be
prescribed under section 7521(b)(1) of this title), any
determination under section 7521(b)(5)1 of this title,
any control or prohibition under section 7545 of this
title, any standard under section 7571 of this title, any
rule issued under section 7413, 7419, or under section
7420 of this title, or any other nationally applicable
regulations promulgated, or final action taken, by
the Administrator under this chapter may be filed
only in the United States Court of Appeals for the
District of Columbia. A petition for review of the
Administrator’s action in approving or promulgating
any implementation plan under section 7410 of this title
or section 7411(d) of this title, any order under section
7411(j) of this title, under section 7412 of this title,
under section 7419 of this title, or under section 7420
of this title, or his action under section 1857c-10(c)(2)
(A), (B), or (C) of this title (as in effect before August
7, 1977) or under regulations thereunder, or revising
regulations for enhanced monitoring and compliance
21a
Appendix B
certification programs under section 7414(a)(3) of this
title, or any other final action of the Administrator
under this chapter (including any denial or disapproval
by the Administrator under subchapter I) which is
locally or regionally applicable may be filed only in the
United States Court of Appeals for the appropriate
circuit. Notwithstanding the preceding sentence a
petition for review of any action referred to in such
sentence may be filed only in the United States Court
of Appeals for the District of Columbia if such action
is based on a determination of nationwide scope or
effect and if in taking such action the Administrator
finds and publishes that such action is based on
such a determination. Any petition for review under
this subsection shall be filed within sixty days from
the date notice of such promulgation, approval, or
action appears in the Federal Register, except that
if such petition is based solely on grounds arising
after such sixtieth day, then any petition for review
under this subsection shall be filed within sixty days
after such grounds arise. The filing of a petition for
reconsideration by the Administrator of any otherwise
final rule or action shall not affect the finality of such
rule or action for purposes of judicial review nor extend
the time within which a petition for judicial review of
such rule or action under this section may be filed,
and shall not postpone the effectiveness of such rule
or action.
22a
Appendix B
42 U.S.C. § 7410
State implementation plans for national primary
and secondary ambient air quality standards
(a) Adoption of plan by State; submission to
Ad ministrator; content of plan; revision;
new sources; indirect source review program;
supplemental or intermittent control systems
(1) Each State shall, after reasonable notice and public
hearings, adopt and submit to the Administrator,
w ithin 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation
of a national primary ambient air quality standard
(or any revision thereof) under section 7409 of this
title for any air pollutant, a plan which provides for
implementation, maintenance, and enforcement of
such primary standard in each air quality control
region (or portion thereof) within such State. In
addition, such State shall adopt and submit to the
Administrator (either as a part of a plan submitted
under the preceding sentence or separately) within 3
years (or such shorter period as the Administrator
may prescribe) after the promulgation of a national
ambient air quality secondary standard (or revision
thereof), a plan which provides for implementation,
maintenance, and enforcement of such secondary
standard in each air quality control region (or portion
thereof) within such State. Unless a separate public
hearing is provided, each State shall consider its plan
implementing such secondary standard at the hearing
required by the first sentence of this paragraph.
23a
Appendix B
(2) Each implementation plan submitted by a State under
this chapter shall be adopted by the State after
reasonable notice and public hearing. Each such plan
shall—
(A) include enforceable emission limitations and other
control measures, means, or techniques (including
economic incentives such as fees, marketable permits,
and auctions of emissions rights), as well as schedules
and timetables for compliance, as may be necessary
or appropriate to meet the applicable requirements of
this chapter;
(B) provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary
to—
(i) monitor, compile, and analyze data on ambient air
quality, and
(ii) upon request, make such data available to the
Administrator;
(C) include a program to provide for the enforcement
of the measures described in subparagraph (A), and
regulation of the modification and construction of any
stationary source within the areas covered by the plan
as necessary to assure that national ambient air quality
standards are achieved, including a permit program
as required in parts C and D;
(D) contain adequate provisions—
24a
Appendix B
(i) prohibiting, consistent with the provisions of this
subchapter, any source or other type of emissions
activity within the State from emitting any air
pollutant in amounts which will—
(I) contribute significantly to nonattainment in, or
interfere with maintenance by, any other State with
respect to any such national primary or secondary
ambient air quality standard, or
(II) interfere with measures required to be included in the
applicable implementation plan for any other State
under part C to prevent significant deterioration of
air quality or to protect visibility,
(ii) insuring compliance with the applicable requirements
of sections 7426 and 7415 of this title (relating to
interstate and international pollution abatement);
(E) provide (i) necessary assurances that the State (or,
except where the Administrator deems inappropriate,
the general purpose local government or governments,
or a regional agency designated by the State or general
purpose local governments for such purpose) will
have adequate personnel, funding, and authority
under State (and, as appropriate, local) law to carry
out such implementation plan (and is not prohibited by
any provision of Federal or State law from carrying
out such implementation plan or portion thereof),
(ii) requirements that the State comply with the
requirements respecting State boards under section
7428 of this title, and (iii) necessary assurances that,
25a
Appendix B
where the State has relied on a local or regional
government, agency, or instrumentality for the
implementation of any plan provision, the State has
responsibility for ensuring adequate implementation
of such plan provision;
(F) require, as may be prescribed by the Administrator—
(i) the installation, maintenance, and replacement of
equipment, and the implementation of other necessary
steps, by owners or operators of stationary sources to
monitor emissions from such sources,
(ii) periodic reports on the nature and amounts of
emissions and emissions-related data from such
sources, and
(iii) correlation of such reports by the State agency with
any emission limitations or standards established
pursuant to this chapter, which reports shall be
available at reasonable times for public inspection;
(G) provide for authority comparable to that in section
7603 of this title and adequate contingency plans to
implement such authority;
(H) provide for revision of such plan—
(i) from time to time as may be necessary to take account
of revisions of such national primary or secondary
ambient air quality standard or the availability of
improved or more expeditious methods of attaining
such standard, and
26a
Appendix B
(ii) except as provided in paragraph (3)(C), whenever
the Administrator finds on the basis of information
available to the Administrator that the plan is
substantially inadequate to attain the national
ambient air quality standard which it implements or
to otherwise comply with any additional requirements
established under this chapter;
(I) in the case of a plan or plan revision for an area
designated as a nonattainment area, meet the
applicable requirements of part D (relating to
nonattainment areas);
(J) meet the applicable requirements of section 7421 of this
title (relating to consultation), section 7427 of this title
(relating to public notification), and part C (relating to
prevention of significant deterioration of air quality
and visibility protection);
(K) provide for—
(i) the performance of such air quality modeling as
the Administrator may prescribe for the purpose
of predicting the effect on ambient air quality of
any emissions of any air pollutant for which the
Administrator has established a national ambient air
quality standard, and
(ii) the submission, upon request, of data related to such
air quality modeling to the Administrator;
(L) require the owner or operator of each major stationary
source to pay to the permitting authority, as a
27a
Appendix B
condition of any permit required under this chapter,
a fee sufficient to cover—
(i) the reasonable costs of reviewing and acting upon any
application for such a permit, and
(ii) if the owner or operator receives a permit for such
source, the reasonable costs of implementing and
enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated
with any enforcement action),
until such fee requirement is superseded with respect
to such sources by the Administrator’s approval of a
fee program under subchapter V; and
(M) provide for consultation and participation by local
political subdivisions affected by the plan.
(3)
(A) Repealed. Pub. L. 101–549, title I, § 101(d)(1), Nov. 15,
1990, 104 Stat. 2409.
(B) As soon as practicable, the Administrator shall,
consistent with the purposes of this chapter and
the Energy Supply and Environmental Coordination
Act of 1974 [15 U.S.C. 791 et seq.], review each
State’s applicable implementation plans and report
to the State on whether such plans can be revised
in relation to fuel burning stationary sources (or
persons supplying fuel to such sources) without
interfering with the attainment and maintenance of
28a
Appendix B
any national ambient air quality standard within the
period permitted in this section. If the Administrator
determines that any such plan can be revised, he shall
notify the State that a plan revision may be submitted
by the State. Any plan revision which is submitted
by the State shall, after public notice and opportunity
for public hearing, be approved by the Administrator
if the revision relates only to fuel burning stationary
sources (or persons supplying fuel to such sources),
and the plan as revised complies with paragraph (2) of
this subsection. The Administrator shall approve or
disapprove any revision no later than three months
after its submission.
(C) Neither the State, in the case of a plan (or portion
thereof) approved under this subsection, nor the
Administrator, in the case of a plan (or portion thereof)
promulgated under subsection (c), shall be required to
revise an applicable implementation plan because one
or more exemptions under section 7418 of this title
(relating to Federal facilities), enforcement orders
under section 7413(d) [1] of this title, suspensions under
subsection (f) or (g) (relating to temporary energy
or economic authority), orders under section 7419 of
this title (relating to primary nonferrous smelters),
or extensions of compliance in decrees entered under
section 7413(e) [1] of this title (relating to iron- and
steel-producing operations) have been granted, if such
plan would have met the requirements of this section
if no such exemptions, orders, or extensions had been
granted.
29a
Appendix B
(4) Repealed. Pub. L. 101–549, title I, § 101(d)(2), Nov. 15,
1990, 104 Stat. 2409.
(5)
(A)
(i) Any State may include in a State implementation plan,
but the Administrator may not require as a condition
of approval of such plan under this section, any
indirect source review program. The Administrator
may approve and enforce, as part of an applicable
implementation plan, an indirect source review
program which the State chooses to adopt and submit
as part of its plan.
(ii) Except as provided in subparagraph (B), no plan
promulgated by the Administrator shall include any
indirect source review program for any air quality
control region, or portion thereof.
(iii) Any State may revise an applicable implementation
plan approved under this subsection to suspend
or revoke any such program included in such plan,
provided that such plan meets the requirements of this
section.
(B) The Administrator shall have the authority to
promulgate, implement and enforce regulations
under subsection (c) respecting indirect source review
programs which apply only to federally assisted
30a
Appendix B
highways, airports, and other major federally assisted
indirect sources and federally owned or operated
indirect sources.
(C) For purposes of this paragraph, the term “indirect
source” means a facility, building, structure,
installation, real property, road, or highway which
attracts, or may attract, mobile sources of pollution.
Such term includes parking lots, parking garages,
and other facilities subject to any measure for
management of parking supply (within the meaning of
subsection (c)(2)(D)(ii)), including regulation of existing
off-street parking but such term does not include new
or existing on-street parking. Direct emissions sources
or facilities at, within, or associated with, any
indirect source shall not be deemed indirect sources
for the purpose of this paragraph.
(D) For purposes of this paragraph the term “indirect
source review program” means the facility-by-facility
review of indirect sources of air pollution, including
such measures as are necessary to assure, or assist
in assuring, that a new or modified indirect source
will not attract mobile sources of air pollution, the
emissions from which would cause or contribute to
air pollution concentrations—
(i) exceeding any national primary ambient air quality
standard for a mobile source-related air pollutant
after the primary standard attainment date, or
(ii) preventing maintenance of any such standard after
such date.
31a
Appendix B
(E) For purposes of this paragraph and paragraph (2)
(B), the term “transportation control measure” does
not include any measure which is an “indirect source
review program”.
(6) No State plan shall be treated as meeting the
requirements of this section unless such plan
provides that in the case of any source which uses
a supplemental, or intermittent control system for
purposes of meeting the requirements of an order
under section 7413(d) 1 of this title or section 7419
of this title (relating to primary nonferrous smelter
orders), the owner or operator of such source may not
temporarily reduce the pay of any employee by reason
of the use of such supplemental or intermittent or other
dispersion dependent control system.
(b) Extension of period for submission of plans
The Administrator may, wherever he determines
necessary, extend the period for submission of any
plan or portion thereof which implements a national
secondary ambient air quality standard for a period not
to exceed 18 months from the date otherwise required
for submission of such plan.
(c) Preparation and publication by Administrator of
proposed regulations setting forth implementation
plan; transportation regulations study and report;
parking surcharge; suspension authority; plan
implementation
32a
Appendix B
(1) The Administrator shall promulgate a Federal
implementation plan at any time within 2 years after
the Administrator—
(A) finds that a State has failed to make a required
submission or finds that the plan or plan revision
submitted by the State does not satisfy the minimum
criteria established under subsection (k)(1)(A), or
(B) disapproves a State implementation plan submission
in whole or in part, unless the State corrects the
deficiency, and the Administrator approves the plan or
plan revision, before the Administrator promulgates
such Federal implementation plan.
(2)
(A) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(A), Nov.
15, 1990, 104 Stat. 2409.
(B) No parking surcharge regulation may be required
by the Administrator under paragraph (1) of this
subsection as a part of an applicable implementation
plan. All parking surcharge regulations previously
required by the Administrator shall be void upon June
22, 1974. This subparagraph shall not prevent the
Administrator from approving parking surcharges if
they are adopted and submitted by a State as part of
an applicable implementation plan. The Administrator
may not condition approval of any implementation
plan submitted by a State on such plan’s including a
parking surcharge regulation.
33a
Appendix B
(C) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(B), Nov.
15, 1990, 104 Stat. 2409.
(D) For purposes of this paragraph—
(i) The term “parking surcharge regulation” means a
regulation imposing or requiring the imposition of any
tax, surcharge, fee, or other charge on parking spaces,
or any other area used for the temporary storage of
motor vehicles.
(ii) The term “management of parking supply” shall
include any requirement providing that any new
facility containing a given number of parking spaces
shall receive a permit or other prior approval,
issuance of which is to be conditioned on air quality
considerations.
(iii) The term “preferential bus/carpool lane” shall
include any requirement for the setting aside of one
or more lanes of a street or highway on a permanent
or temporary basis for the exclusive use of buses or
carpools, or both.
(E) No standard, plan, or requirement, relating to
management of parking supply or preferential bus/
carpool lanes shall be promulgated after June 22, 1974,
by the Administrator pursuant to this section, unless
such promulgation has been subjected to at least one
public hearing which has been held in the area affected
and for which reasonable notice has been given in such
area. If substantial changes are made following public
34a
Appendix B
hearings, one or more additional hearings shall be held
in such area after such notice.
(3) Upon application of the chief executive officer of
any general purpose unit of local government, if the
Administrator determines that such unit has adequate
authority under State or local law, the Administrator
may delegate to such unit the authority to implement
and enforce within the jurisdiction of such unit any part
of a plan promulgated under this subsection. Nothing
in this paragraph shall prevent the Administrator
from implementing or enforcing any applicable
provision of a plan promulgated under this subsection.
(4) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(C), Nov.
15, 1990, 104 Stat. 2409.
(5)
(A) Any measure in an applicable implementation plan
which requires a toll or other charge for the use
of a bridge located entirely within one city shall be
eliminated from such plan by the Administrator
upon application by the Governor of the State,
which application shall include a certification by the
Governor that he will revise such plan in accordance
with subparagraph (B).
(B) In the case of any applicable implementation plan
with respect to which a measure has been eliminated
under subparagraph (A), such plan shall, not later
than one year after August 7, 1977, be revised to
include comprehensive measures to:
35a
Appendix B
(i) establish, expand, or improve public transportation
measures to meet basic transportation needs, as
expeditiously as is practicable; and
(ii) implement transportation control measures necessary
to attain and maintain national ambient air quality
standards, and such revised plan shall, for the
purpose of implementing such comprehensive public
transportation measures, include requirements to use
(insofar as is necessary) Federal grants, State or local
funds, or any combination of such grants and funds
as may be consistent with the terms of the legislation
providing such grants and funds. Such measures shall,
as a substitute for the tolls or charges eliminated under
subparagraph (A), provide for emissions reductions
equivalent to the reductions which may reasonably be
expected to be achieved through the use of the tolls or
charges eliminated.
(C) Any revision of an implementation plan for purposes
of meeting the requirements of subparagraph (B)
shall be submitted in coordination with any plan
revision required under part D.
(d), (e) Repealed. Pub. L. 101–549, title I, § 101(d)(4), (5),
Nov. 15, 1990, 104 Stat. 2409
(f) Nat iona l or r e g iona l ene r g y e me r genc i e s;
determination by President
(1) Upon application by the owner or operator of a
fuel burning stationary source, and after notice and
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opportunity for public hearing, the Governor of the
State in which such source is located may petition
the President to determine that a national or regional
energy emergency exists of such severity that—
(A) a temporary suspension of any part of the applicable
implementation plan or of any requirement under
section 7651j of this title (concerning excess emissions
penalties or offsets) may be necessary, and
(B) other means of responding to the energy emergency
may be inadequate.
Such determination shall not be delegable by the
President to any other person. If the President
determines that a national or regional energy
emergency of such severity exists, a temporary
emergency suspension of any part of an applicable
implementation plan or of any requirement under
section 7651j of this title (concerning excess
emissions penalties or offsets) adopted by the State
may be issued by the Governor of any State covered
by the President’s determination under the condition
specified in paragraph (2) and may take effect
immediately.
(2) A temporary emergency suspension under this
subsection shall be issued to a source only if the
Governor of such State finds that—
(A) there exists in the vicinity of such source a
temporary energy emergency involving high levels of
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unemployment or loss of necessary energy supplies for
residential dwellings; and
(B) such unemployment or loss can be totally or partially
alleviated by such emergency suspension.
Not more than one such suspension may be issued for
any source on the basis of the same set of circumstances
or on the basis of the same emergency.
(3) A temporary emergency suspension issued by a
Governor under this subsection shall remain in
effect for a maximum of four months or such lesser
period as may be specified in a disapproval order of
the Administrator, if any. The Administrator may
disapprove such suspension if he determines that it does
not meet the requirements of paragraph (2).
(4) This subsection shall not apply in the case of a
plan provision or requirement promulgated by the
Administrator under subsection (c) of this section, but
in any such case the President may grant a temporary
emergency suspension for a four month period of
any such provision or requirement if he makes the
determinations and findings specified in paragraphs
(1) and (2).
(5) The Governor may include in any temporary
emergency suspension issued under this subsection a
provision delaying for a period identical to the period of
such suspension any compliance schedule (or increment
of progress) to which such source is subject under
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section 1857c–10 1 of this title, as in effect before
August 7, 1977, or section 7413(d) 1 of this title, upon a
finding that such source is unable to comply with such
schedule (or increment) solely because of the conditions
on the basis of which a suspension was issued under
this subsection.
(g) Governor’s authority to issue temporary emergency
suspensions
(1) In the case of any State which has adopted and
submitted to the Administrator a proposed plan
revision which the State determines—
(A) meets the requirements of this section, and
(B) is necessary (i) to prevent the closing for one
year or more of any source of air pollution, and (ii)
to prevent substantial increases in unemployment
which would result from such closing, and which the
Administrator has not approved or disapproved under
this section within 12 months of submission of the
proposed plan revision, the Governor may issue a
temporary emergency suspension of the part of the
applicable implementation plan for such State which is
proposed to be revised with respect to such source.
The determination under subparagraph (B) may not be
made with respect to a source which would close without
regard to whether or not the proposed plan revision is
approved.
(2) A temporary emergency suspension issued by a
Governor under this subsection shall remain in effect
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for a maximum of four months or such lesser period
as may be specified in a disapproval order of the
Administrator. The Administrator may disapprove
such suspension if he determines that it does not meet
the requirements of this subsection.
(3) The Governor may include in any temporary
emergency suspension issued under this subsection
a provision delaying for a period identical to the
period of such suspension any compliance schedule (or
increment of progress) to which such source is subject
under section 1857c–10 1 of this title as in effect before
August 7, 1977, or under section 7413(d) 1 of this title
upon a finding that such source is unable to comply
with such schedule (or increment) solely because of
the conditions on the basis of which a suspension was
issued under this subsection.
(h) Publication of comprehensive document for each
State setting forth requirements of applicable
implementation plan
(1) Not later than 5 years after November 15, 1990, and
every 3 years thereafter, the Administrator shall
assemble and publish a comprehensive document
for each State setting forth all requirements of the
applicable implementation plan for such State and shall
publish notice in the Federal Register of the availability
of such documents.
(2) The Administrator may promulgate such regulations
as may be reasonably necessary to carry out the
purpose of this subsection.
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(i) Modification of requirements prohibited
Except for a primary nonferrous smelter order under
section 7419 of this title, a suspension under subsection
(f) or (g) (relating to emergency suspensions), an
exemption under section 7418 of this title (relating
to certain Federal facilities), an order under section
7413(d) 1 of this title (relating to compliance orders), a
plan promulgation under subsection (c), or a plan revision
under subsection (a)(3); no order, suspension, plan
revision, or other action modifying any requirement
of an applicable implementation plan may be taken with
respect to any stationary source by the State or by the
Administrator.
(j) Technological systems of continuous emission
reduction on new or modified stationary sources;
compliance with performance standards
As a condition for issuance of any permit required
under this subchapter, the owner or operator of each
new or modified stationary source which is required
to obtain such a permit must show to the satisfaction
of the permitting authority that the technological
system of continuous emission reduction which is to be
used at such source will enable it to comply with the
standards of performance which are to apply to such
source and that the construction or modification and
operation of such source will be in compliance with
all other requirements of this chapter.
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(k) Environmental Protection Agency action on plan
submissions
(1) Completeness of plan submissions
(A) Completeness criteria
Within 9 months after November 15, 1990, the
Administrator shall promulgate minimum criteria
that any plan submission must meet before the
Administrator is required to act on such submission
under this subsection. The criteria shall be limited to
the information necessary to enable the Administrator
to determine whether the plan submission complies
with the provisions of this chapter.
(B) Completeness finding
Within 60 days of the Administrator’s receipt of a plan
or plan revision, but no later than 6 months after the
date, if any, by which a State is required to submit the
plan or revision, the Administrator shall determine
whether the minimum criteria established pursuant
to subparagraph (A) have been met. Any plan or plan
revision that a State submits to the Administrator, and
that has not been determined by the Administrator
(by the date 6 months after receipt of the submission)
to have failed to meet the minimum criteria established
pursuant to subparagraph (A), shall on that date be
deemed by operation of law to meet such minimum
criteria.
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Appendix B
(C) Effect of finding of incompleteness
Where the Administrator determines that a plan
submission (or part thereof) does not meet the minimum
criteria established pursuant to subparagraph (A),
the State shall be treated as not having made the
submission (or, in the Administrator’s discretion, part
thereof).
(2) Deadline for action
Within 12 months of a determination by the
Administrator (or a determination deemed by
operation of law) under paragraph (1) that a State
has submitted a plan or plan revision (or, in the
Administrator’s discretion, part thereof ) that
meets the minimum criteria established pursuant to
paragraph (1), if applicable (or, if those criteria are
not applicable, within 12 months of submission of the
plan or revision), the Administrator shall act on the
submission in accordance with paragraph (3).
(3) Full and partial approval and disapproval
In the case of any submittal on which the
Administrator is required to act under paragraph
(2), the Administrator shall approve such submittal as
a whole if it meets all of the applicable requirements
of this chapter. If a portion of the plan revision meets
all the applicable requirements of this chapter, the
Administrator may approve the plan revision in
part and disapprove the plan revision in part. The
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plan revision shall not be treated as meeting the
requirements of this chapter until the Administrator
approves the entire plan revision as complying with the
applicable requirements of this chapter.
(4) Conditional approval
The Administrator may approve a plan revision
based on a commitment of the State to adopt specific
enforceable measures by a date certain, but not later
than 1 year after the date of approval of the plan
revision. Any such conditional approval shall be
treated as a disapproval if the State fails to comply
with such commitment.
(5) Calls for plan revisions
Whenever the Administrator finds that the applicable
implementation plan for any area is substantially
inadequate to attain or maintain the relevant national
ambient air quality standard, to mitigate adequately
the interstate pollutant transport described in
section 7506a of this title or section 7511c of this
title, or to otherwise comply with any requirement
of this chapter, the Administrator shall require the
State to revise the plan as necessary to correct
such inadequacies. The Administrator shall notify
the State of the inadequacies, and may establish
reasonable deadlines (not to exceed 18 months after
the date of such notice) for the submission of such plan
revisions. Such findings and notice shall be public. Any
finding under this paragraph shall, to the extent the
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Administrator deems appropriate, subject the State
to the requirements of this chapter to which
the State was subject when it developed and
submitted the plan for which such finding was made,
except that the Administrator may adjust any dates
applicable under such requirements as appropriate
(except that the Administrator may not adjust any
attainment date prescribed under part D, unless such
date has elapsed).
(6) Corrections
Whenever the Administrator determines that the
Administrator’s action approving, disapproving,
or promulgating any plan or plan revision (or part
thereof), area designation, redesignation, classification,
or reclassification was in error, the Administrator may
in the same manner as the approval, disapproval, or
promulgation revise such action as appropriate without
requiring any further submission from the State. Such
determination and the basis thereof shall be provided
to the State and public.
(l) Plan revisions
Each revision to an implementation plan submitted by
a State under this chapter shall be adopted by such
State after reasonable notice and public hearing. The
Administrator shall not approve a revision of a plan
if the revision would interfere with any applicable
requirement concerning attainment and reasonable
further progress (as defined in section 7501 of this
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title), or any other applicable requirement of this
chapter.
(m)
Sanctions
The Administrator may apply any of the sanctions
listed in section 7509(b) of this title at any time (or
at any time after) the Administrator makes a finding,
disapproval, or determination under paragraphs
(1) through (4), respectively, of section 7509(a) of
this title in relation to any plan or plan item (as
that term is defined by the Administrator) required
under this chapter, with respect to any portion of the
State the Administrator determines reasonable and
appropriate, for the purpose of ensuring that the
requirements of this chapter relating to such plan or
plan item are met. The Administrator shall, by rule,
establish criteria for exercising his authority under
the previous sentence with respect to any deficiency
referred to in section 7509(a) of this title to ensure
that, during the 24-month period following the finding,
disapproval, or determination referred to in section
7509(a) of this title, such sanctions are not applied
on a statewide basis where one or more political
subdivisions covered by the applicable implementation
plan are principally responsible for such deficiency.
(n) Savings clauses
(1) Existing plan provisions
Any provision of any applicable implementation
plan that was approved or promulgated by the
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Administrator pursuant to this section as in effect
before November 15, 1990, shall remain in effect as
part of such applicable implementation plan, except to
the extent that a revision to such provision is approved
or promulgated by the Administrator pursuant to this
chapter.
(2) Attainment dates
For any area not designated nonattainment, any plan
or plan revision submitted or required to be submitted
by a State—
(A) in response to the promulgation or revision of a
national primary ambient air quality standard in effect
on November 15, 1990, or
(B) in response to a finding of substantial inadequacy
under subsection (a)(2) (as in effect immediately before
November 15, 1990), shall provide for attainment of
the national primary ambient air quality standards
within 3 years of November 15, 1990, or within 5 years
of issuance of such finding of substantial inadequacy,
whichever is later.
(3) Retention of construction moratorium in certain
areas
In the case of an area to which, immediately before
November 15, 1990, the prohibition on construction or
modification of major stationary sources prescribed
in subsection (a)(2)(I) (as in effect immediately before
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November 15, 1990) applied by virtue of a finding of
the Administrator that the State containing such area
had not submitted an implementation plan meeting the
requirements of section 7502(b)(6) of this title (relating
to establishment of a permit program) (as in effect
immediately before November 15, 1990) or 7502(a)(1)
of this title (to the extent such requirements relate
to provision for attainment of the primary national
ambient air quality standard for sulfur oxides by
December 31, 1982) as in effect immediately before
November 15, 1990, no major stationary source of the
relevant air pollutant or pollutants shall be constructed
or modified in such area until the Administrator
finds that the plan for such area meets the applicable
requirements of section 7502(c)(5) of this title
(relating to permit programs) or subpart 5 of part
D (relating to attainment of the primary national
ambient air quality standard for sulfur dioxide),
respectively.
(o) Indian tribes
If an Indian tribe submits an implementation plan to
the Administrator pursuant to section 7601(d) of this
title, the plan shall be reviewed in accordance with the
provisions for review set forth in this section for State
plans, except as otherwise provided by regulation
promulgated pursuant to section 7601(d)(2) of this
title. When such plan becomes effective in accordance
with the regulations promulgated under section
7601(d) of this title, the plan shall become applicable
to all areas (except as expressly provided otherwise
in the plan) located within the exterior boundaries of
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the reservation, notwithstanding the issuance of any
patent and including rights-of-way running through
the reservation.
(p) Reports
Any State shall submit, according to such schedule
as the Administrator may prescribe, such reports
as the Administrator may require relating to
emission reductions, vehicle miles traveled, congestion
levels, and any other information the Administrator
may deem necessary to assess the development [2]
effectiveness, need for revision, or implementation of
any plan or plan revision required under this chapter.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.