Amicus Curiae Brief — Oklahoma, et al., Petitioners v. Environmental Protection Agency, et al.

No. 23-1067

IN THE

Supreme Court of the United States

_________

STATE OF OKLAHOMA, OKLAHOMA DEP’T OF

ENVIRONMENTAL QUALITY, 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

_________

BRIEF OF U.S. SENATORS MIKE LEE,

CYNTHIA LUMMIS, ROGER MARSHALL, AND

TED BUDD AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

_________

JENNIFER L. MASCOTT

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

GRAY CENTER FOR THE STUDY OF THE

ADMINISTRATIVE STATE

ANTONIN SCALIA LAW SCHOOL

3301 FAIRFAX DR., SUITE 430

ARLINGTON, VA 22201

(202) 706-5488

rmccotte@gmu.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF THE AMICI CURIAE ...................... 2

SUMMARY OF THE ARGUMENT .......................... 3

I.

Section 7607(b)(1) Guarantees Regional

Review of Regional Decisions ............................. 3

II. SIP Decisions Are Quintessential Regional

Decisions ............................................................ 5

III. The Executive Cannot Evade Regional Review

Through Wordplay and Labels ........................... 7

CONCLUSION ....................................................... 11

ii



TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................................. 3

Am. Rd. & Transp. Builders Ass’n v.

EPA, 705 F.3d 453 (D.C. Cir. 2013) ..................... 6

Gen. Motors Corp. v. United States,

496 U.S. 530 (1990) ............................................. 3

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ................................ 4

Texas v. EPA,

983 F.3d 826 (5th Cir. 2020) ................................ 4

Texas v. EPA,

No. 23-60069, 2023 WL 7204840 (5th

Cir. 2023) ............................................................. 6

Train v. Nat. Res. Def. Council,

421 U.S. 60 (1975) ............................................... 4

Statutes

8 U.S.C. § 1226a ....................................................... 5

28 U.S.C. § 44 ........................................................... 5

28 U.S.C. § 1391 ....................................................... 7

33 U.S.C. § 1369 ....................................................... 5

42 U.S.C. § 7607 ....................................................3, 7

1

INTEREST OF AMICI CURIAE

Amici curiae are United States Senators Mike Lee

(UT), Cynthia Lummis (WY), Roger Marshall (KS),

and Ted Budd (NC). As Senators, they have a strong

interest in the federal courts correctly interpreting

and preserving the federalism-focused judicial review

scheme that Congress fashioned in the Clean Air Act.

This case is especially important to Senators Lee,

Lummis, and Marshall because they represent States

within the Tenth Circuit, which now stands alone in

holding that the Clean Air Act does not necessarily

require that EPA’s rejection of a state implementation

plan be heard in the regional circuit court. Unless this

Court intervenes, States within the Tenth Circuit will

play by one set of venue rules—and be required to

challenge EPA rejections in the D.C. Circuit—while

all other States will play by another, remaining free

to sue in their home circuits.1

1

No counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from amici curiae’s counsel,

made any monetary contribution intended to fund the

preparation or submission of this brief. All parties have received

timely notification of the filing of this brief.

2

SUMMARY OF THE ARGUMENT

There are a lot of hard Clean Air Act (CAA) cases.

This is not one of them. The CAA’s venue provision

states, in essence, that a nationwide action should go

to the D.C. Circuit, but a regional action should go to

the region’s court of appeals. And all agree that the

paradigmatic example of a regional action is the

EPA’s approval or denial of a state implementation

plan (SIP). Unsurprisingly, every court of appeals had

uniformly held that judicial review over SIP decisions

must go to the applicable regional circuit court—not

the D.C. Circuit.

That is until the decision below. Here, the Tenth

Circuit held that the SIP decisions at issue must go to

the D.C. Circuit because the EPA chose to bundle its

announcement of the proposed region-by-region

actions within a single Federal Register notice—thus

making them superficially “national.” That is so even

though the legal review—a fact-heavy inquiry

requiring individual, region-by-region analysis of each

SIP decision—remains the same as if the EPA had

announced its decisions one-by-one.

The Tenth Circuit’s decision is egregiously wrong.

Text, purpose, and precedent all confirm what

common sense also would compel: The CAA’s venue

provision turns on substance, not form; and it does not

allow the EPA to pick its chosen forum based on how

the agency chooses to package its Federal Register

notices.

This Court’s review is warranted. The Tenth

Circuit’s decision has created a circuit split that

promises serious and immediate repercussions, both

3

in practice and for federalism. Until this Court

intervenes, the States within the Tenth Circuit will

now need to schlep to D.C. to litigate SIP decisions in

the EPA’s backyard, whereas almost all other States

will be able to litigate within regional circuits

composed of judges with more localized expertise. This

Court should put an end to that disordered system

and restore the venue provision that Congress wrote.

ARGUMENT

I.

Section 7607(b)(1) Guarantees Regional

Review of Regional Decisions.

The Clean Air Act divides judicial review of EPA

actions into one of two general categories: Actions that

are either nationally applicable or of nationwide effect

go to the D.C. Circuit; but “local or regional” actions—

lacking true nationwide effect—go to the circuit for

that particular region. 42 U.S.C. § 7607(b)(1).

This venue rule reflects the federalism principles

core to the CAA’s longstanding judicial review scheme

and cooperative federalist regulatory function. The

Act is a “comprehensive national program that made

the States and the Federal Government partners in

the struggle against air pollution.” Gen. Motors Corp.

v. United States, 496 U.S. 530, 532 (1990). And as part

of that arrangement, the “Act envisions extensive cooperation between federal and state authorities.” Am.

Elec. Power Co. v. Connecticut, 564 U.S. 410, 428

(2011). The CAA thus assigns certain decisions—

those bearing on the whole country—to the Federal

Government, while reserving those that turn more on

local expertise to the States in the first instance. For

4

instance, and as especially relevant here, the Act “relegate[s]” the Federal Government to a “secondary

role” over specific decisions about the “prevention and

control of air pollution at its source,” because that type

of decision has traditionally been the “primary responsibility of States and local governments.” Train v. Nat.

Res. Def. Council, 421 U.S. 60, 64, 79 (1975).

The Act’s venue provision tracks this division of

responsibility. “All nationally applicable actions go to

the D.C. Circuit, which promotes national

uniformity.” Texas v. EPA, 983 F.3d 826, 835 (5th Cir.

2020). In other words, nationwide rules go to a single

court to apply a single understanding of the law to a

single federal action. By contrast, “[a]ll locally or

regionally applicable actions that are based on local

and regional determinations go to the regional

circuits, which promotes responsiveness and attention

to local and regional diversity.” Id. That is, where an

action lacks a nationwide effect, courts from the

communities that will actually bear the consequences

of the EPA’s decision are assigned by Congress to

assess its lawfulness.

This just “makes sense.” Id. While the CAA has

only one meaning, of course, how its standards cash

out on the ground are often fact-intensive inquiries.

See, e.g., Texas v. EPA, 829 F.3d 405, 423 (5th Cir.

2016). Those sorts of inquiries should be evaluated by

judges who actually know the lands, businesses, and

people being regulated—as opposed to judges reading

about the Mountain West or Rust Belt from hundreds

or even thousands of miles away. More, as touched on

5

above, these types of actions often involve federal

regulation of traditional state prerogatives, such as

administering and overseeing air quality. Congress

believed that it was important for political buy-in and

accountability that the States have a hand in the

judges supervising those delicate decisions. Cf. 28

U.S.C. § 44(c) (providing “there shall be at least one

circuit judge in regular active service appointed from

the residents of each state in that circuit”).

All in all, the CAA’s venue provision was a

conscious policy decision to guarantee regional review

of regional decisions. After all, Congress knows how to

send cases exclusively to the D.C. Circuit when it

wants to do so. See, e.g., 8 U.S.C. § 1226a(b)(3)

(detention review provision). And it knows how to do

the opposite—including in analogous statutory

schemes. See, e.g., 33 U.S.C. § 1369(b)(1). With the

CAA, Congress struck a balance, centralizing review

for truly federal actions, and decentralizing review

over regional decisions.

II.

SIP

Decisions

Are

Regional Decisions.

Quintessential

The CAA is often complicated. And the line

between what is national and what is regional is not

necessarily always crystal clear in every case. But

none of those uncertainties is present here: This case

involves the EPA’s review (and disapproval) of a set of

state

implementation

plans

(SIPs)—the

quintessential regional decision.

Just take then-Judge Kavanaugh’s word for it:

“EPA’s action in approving or promulgating any

6

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) (internal citations omitted). Or as

the Tenth Circuit put it, in a decision joined by thenJudge Gorsuch: The EPA’s decision to approve or

reject a SIP is an “undisputably regional action,”

because it is “purely local.” Texas v. EPA, No. 2360069, 2023 WL 7204840, at *4 (5th Cir. 2023)

(quoting ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194,

1199 (10th Cir. 2011)).

Judges Kavanaugh and Gorsuch were right. “[T]he

vast majority of actions involving SIPs are necessarily

about individual States ... .” Texas, 2023 WL 7204840,

at *4. Or in slightly blunter terms: “[T]he State

Implementation Plans, of course, primarily involve

individual States.” Id. at *5; see also id. (“SIP

disapprovals are usually highly fact-bound and

particular to the individual State”) (internal markings

omitted).

SIP approvals or rejections like the ones at issue

are thus the precise sorts of actions that are supposed

to go to the regional circuits. Indeed, the Act expressly

says as much, providing that a “petition for review of

the Administrator’s action in approving or

promulgating any implementation plan under section

... 7410” of this title —the relevant provision here—

“may be filed only in the United States Court of

7

Appeals for the appropriate circuit.” 42 U.S.C.

§ 7607(b)(1).2

In short, every single tool of interpretation—text,

purpose, precedent, logic, etc.—points the same way

here: SIP decisions are reviewed by regional circuits.

III.

The Executive Cannot Evade Regional

Review Through Wordplay and Labels.

Congress thus made a deliberate choice for SIP

decisions to go to the regional circuits. This case asks

whether that rule goes out the window when the EPA

decides to bundle those decisions within a single

Federal Register notice. The answer is obviously no.

The whole point of a venue provision like the one

here—one that assigns specific actions to specific

courts, versus one that lays out a range of options (e.g.,

28 U.S.C. § 1391)—is to cabin the discretion of the

litigants. Truly, the only function of a provision like

§ 7601(b)(1) is to remove decisions about venue from

the hands of individual parties and codify what

Congress has decided is the proper forum for a given

matter.

2 As Petitioners explain (Pet.31-32), the Tenth Circuit simply

blew past this language, reasoning that it only applied to SIP

decisions that were “locally or regionally applicable.” Not so. The

court focused on the provision’s catch-all—“any other final action

of the Administrator under this chapter … which is locally or

regionally applicable”—and plucked a portion of it to limit the

preceding terms, in square violation of the rule of the last

antecedent. Rather, the catch-all picks up items in addition to

those expressly provided before—and Congress made express

that petitions reviewing SIP decisions like those here must go

exclusively to the regional circuits.

8

The Tenth Circuit’s decision guts this function. On

its logic, the Federal Government can now forum shop

to its heart’s content: If it likes the judges on a

regional court, it will issue a standalone SIP decision;

if it feels it has better odds in its own backyard, it will

bundle a few—and presto, it is a “nationally

applicable” action.

No rational Congress would craft a venue

provision in this directionless fashion—and no

Congress did. As touched on above, the reason

Congress wanted to direct SIP decisions to regional

circuits is that such decisions are typically factintensive, and review of those decisions will benefit

from “local and regional” expertise. Texas, 983 F.3d at

835. But on the Tenth Circuit’s view, Congress wanted

those fact-intensive decisions to be made by regional

circuits only when the EPA issues standalone SIP

decisions; otherwise, it wanted the D.C. Circuit to

review when the EPA opted for an omnibus action.

That is nonsensical. Whether bundled within a single

Federal Register notice or issued seriatim, the judicial

review of those individual SIP decisions looks exactly

the same—it is the same fact-intensive, regionally

dependent inquiry no matter what. There is zero

cogent reason why Congress wanted the regional

circuits to review those decisions only when the EPA

issued one on its own.

Instead, Congress cared here about substance over

form. That is the default rule in the law. See, e.g.,

Columbia Broad. Sys. v. United States, 316 U.S. 407,

416 (1942). For instance, it is blackletter law that

under the APA, what matters is the substance of the

agency’s action, not how the agency chooses to brand

9

it. See, e.g., Clarian Health W., LLC v. Burwell, 206 F.

Supp. 3d 393, 407 (D.D.C. 2016) (Jackson, J.), rev’d on

other grounds, 878 F.3d 346. So much so here. As the

Fourth Circuit explained: “An action is local or

regional if it assesses and analyzes local or regional

circumstances that are

distinct from the

circumstances in other localities or regions and it

rules on those circumstances,” while a “determination

would be national in scope and effect if it addressed

and analyzed circumstances common to all regions in

the Nation.” West Virginia. v. EPA, 90 F.4th 323, 328

(4th Cir. 2024). In so many words, whether an action

is regional or national does not turn on the label or the

packaging. Rather, it turns on the substance of the

action—and it is the substance of the action that

determines what part of § 7601(b)(1) applies. See, e.g.,

Texas, 2023 WL 7204840, at *4 (“Yes, the EPA

packaged these disapprovals together” but “the EPA’s

chosen method of publishing an action isn’t

controlling. What controls is the CAA. And the CAA is

very clear.”).

More fundamentally, the Tenth Circuit’s decision

undermines the separation of powers. One of the most

important authorities vested in Congress is its

plenary authority over the jurisdiction of the lower

federal courts. Sheldon v. Sill, 49 U.S. 441, 449 (1850);

see also, e.g., Mark v. Republic of the Sudan, 77 F.4th

892, 896 (D.C. Cir. 2023). Through § 7607(b)(1),

Congress exercised that constitutional structural

prerogative. But the effect of the Tenth Circuit’s

decision is to hollow § 7607(b)(1), and transfer

determinations of venue from Congress to the

Executive. As explained, under the Tenth Circuit’s

10

decision, the EPA can decide for itself where it wants

to litigate—the precise sort of discretion that

Congress wanted to eliminate here, in guaranteeing

regional judicial review over regional EPA decisions.

In short, the Tenth Circuit significantly erred—

and engendered a split with weighty repercussions

both in practice and for federalism. This Court’s

review is thus deeply needed to restore a single venue

rule across the country, and one that is consistent

with the one Congress clearly provided in § 7607(b)(1).

11

CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition and reverse the decision below.

Respectfully submitted,

JENNIFER L. MASCOTT

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

GRAY CENTER FOR THE STUDY OF THE

ADMINISTRATIVE STATE

ANTONIN SCALIA LAW SCHOOL

GEORGE MASON UNIVERSITY

3301 FAIRFAX DR., SUITE 430

ARLINGTON, VA 22201

(202) 706-5488

rmccotte@gmu.edu

May 1, 2024