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

No. 23-1068

In the Supreme Court of the United States

PACIFICORP, et al.,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR PETITIONERS

MEGAN BERGE

SARAH DOUGLAS

BAKER BOTTS L.L.P.

700 K Street N.W.

Washington, D.C. 20001

AARON M. STREETT

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

Attorneys for the

Oklahoma Industry

Petitioners

MISHA TSEYTLIN

Counsel of Record

JEFF P. JOHNSON

KEVIN M. LEROY

KAITLIN L. O’DONNELL

EMILY A. O’BRIEN

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

Attorneys for PacifiCorp

(Additional counsel listed on inside cover.)

STEVEN J. CHRISTIANSEN

DAVID C. REYMANN

PARR BROWN GEE

& LOVELESS

101 South 200 East

Suite 700

Salt Lake City, UT 84111

Attorneys for Deseret

Generation &

Transmission CoOperative

MARIE BRADSHAW DURRANT

Vice President and

General Counsel

CHRISTIAN C. STEPHENS

Senior Attorney

PACIFICORP

1407 North Temple

Suite 320

Salt Lake City, UT 84116

CARROLL WADE MCGUFFEY III

MELISSA HORNE

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

Attorneys for PacifiCorp

(Additional counsel listed at end of brief.)

QUESTION PRESENTED

Whether the Environmental Protection Agency’s

(“EPA”) disapproval of a State Implementation Plan

(“SIP”) may be challenged only in the D.C. Circuit

under 42 U.S.C. § 7607(b)(1) when EPA packages that

disapproval with its disapprovals of other SIPs and

purports to use a consistent method in evaluating the

state-specific determinations in those SIPs.

ii

PARTIES TO THE PROCEEDINGS

The Utah Industry Petitioners are PacifiCorp;

Deseret Generation & Transmission Co-Operative;

Utah Municipal Power Agency; and Utah Associated

Municipal Power Systems.

PacifiCorp, Deseret

Generation & Transmission Co-Operative, and Utah

Municipal Power Agency were the Petitioners in the

Tenth Circuit below in No.23-9512 and are

Petitioners here. Utah Associated Municipal Power

Systems was the Petitioner in the Tenth Circuit below

in No.23-9520 and is a Petitioner here.

The Oklahoma Industry Petitioners are

Oklahoma Gas & Electric Company; Tulsa Cement

LLC, d/b/a Central Plains Cement Company LLC;

Republic Paperboard Company LLC; and Western

Farmers Electric Cooperative. Oklahoma Gas &

Electric Company was the Petitioner in the Tenth

Circuit below in No.23-9521 and is a Petitioner here.

Tulsa Cement LLC, d/b/a Central Plains Cement

Company LLC, and Republic Paperboard Company

LLC were the Petitioners in the Tenth Circuit below

in No.23-9533 and are Petitioners here. Western

Farmers Electric Cooperative was the Petitioner in

the Tenth Circuit below in No.23-9534 and is a

Petitioner here.

The U.S. EPA and Michael Regan, in his official

capacity as the Administrator of the U.S. EPA, were

iii

the Respondents in each of the Tenth Circuit cases

below and are the Respondents here.

iv

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

INTRODUCTION .......................................................1

DECISION BELOW ....................................................5

JURISDICTION ..........................................................5

STATUTORY AND REGULATORY

PROVISIONS INVOLVED .....................................5

STATEMENT OF THE CASE ....................................5

A. Legal Background .......................................5

B. Factual And Procedural Background .......13

SUMMARY OF THE ARGUMENT ..........................23

ARGUMENT .............................................................28

I. EPA’s Actions Disapproving Utah’s SIP

And Oklahoma’s SIP Are “Locally Or

Regionally Applicable” Actions Under

Section

7607(b)(1)’s

Default

Venue

Provision .........................................................28

II. Neither EPA’s Disapproval Of Utah’s SIP

Nor Its Disapproval of Oklahoma’s SIP Was

An “Action . . . Based On A Determination

Of Nationwide Scope Or Effect” .....................46

CONCLUSION ..........................................................57

v

TABLE OF AUTHORITIES

Cases

Am. Rd. & Transp. Builders Ass’n v. EPA,

705 F.3d 453 (D.C. Cir. 2013) .................... 1, 2, 10,

24, 26, 32, 33, 34, 35,

37, 45, 48, 55, 56

ATK Launch Sys., Inc. v. EPA,

651 F.3d 1194 (10th Cir. 2011)............... 24, 33, 35

Corley v. United States,

556 U.S. 303 (2009)................................. 45, 46, 55

Cuomo v. Clearing House Ass’n, LLC,

557 U.S. 519 (2009)............................................. 47

Dayton Power & Light Co. v. EPA,

520 F.2d 703 (6th Cir. 1975)............................... 11

Dep’t of Homeland Sec. v. Regents

of the Univ. of Cal.,

591 U.S. 1 (2020)........................................... 56, 57

Diaz v. United States,

602 U.S. 526 (2024)............................................. 55

Fischer v. United States,

603 U.S. 480 (2024)............................................. 31

Garland v. Aleman Gonzalez,

596 U.S. 543 (2022)............................................. 47

vi

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980)................................4, 8, 12, 34

Kentucky v. EPA,

No.23-3216, 2024 WL 5001991

(6th Cir. Dec. 6, 2024) .......................23, 28, 29, 30,

36, 47, 48, 55, 57

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983)............................................... 45

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs.,

545 U.S. 967 (2005)............................................. 45

NFIB v. Dep’t of Lab., Occupational Safety &

Health Admin.,

595 U.S. 109 (2022) (per curiam) ....................... 31

NRDC v. EPA,

465 F.2d 492 (1st Cir. 1972) ............................... 11

Ohio v. EPA,

603 U.S. 279 (2024)....................................... 6, 7, 8

Oklahoma v. EPA,

93 F.4th 1262 (10th Cir. 2024) ............................. 5

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016)............................... 36

vii

Texas v. EPA,

No.23-60069, 2023 WL 7204840

(5th Cir. May 1, 2023)............................. 22, 36, 57

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975)............................................. 7, 8

Union Elec. Co. v. EPA,

427 U.S. 246 (1976)..................................... 7, 8, 33

West Virginia v. EPA,

597 U.S. 697 (2022)..................................... 6, 7, 31

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) ..............22, 27, 55, 57

Whitman v. Am. Trucking Ass’n, Inc.,

531 U.S. 457 (2001)............................................... 6

Yellen v. Confederated Tribes of Chehalis Rsrv.,

594 U.S. 338 (2021)............................................. 30

Statutes And Rules

5 U.S.C. § 551 ........................................................... 47

28 U.S.C. § 1254 ......................................................... 5

42 U.S.C. § 7401 ................................................... 6, 30

42 U.S.C. § 7408 ......................................................... 6

42 U.S.C. § 7409 ......................................................... 6

viii

42 U.S.C. § 7410 .....................................5, 7, 8, 13, 16,

32, 33, 34, 35, 36,

37, 41, 50, 56

42 U.S.C. § 7607 ...................................1, 3, 5, 8, 9, 10,

23, 24, 25, 26, 28, 29,

30, 31, 32, 33, 34, 35,

36, 42, 44, 45, 46, 47,

48, 49, 50, 51, 53, 56

Clean Air Act Amendments of 1970, Pub. L.

No.91-604, 84 Stat. 1676 (1970) ......................... 10

Clean Air Act Amendments of 1977, Pub. L.

No.95-95, 91 Stat. 685 (1977) ....................... 11, 12

Fed. R. App. P. 15..................................................... 42

Safe Drinking Water Act Amendments of 1977,

Pub. L. No.95-190, 91 Stat. 1393 (1977) ............ 12

Other Authorities

80 Fed. Reg. 65,292 (Oct. 26, 2015) ......................... 13

82 Fed. Reg. 1,733 (Jan. 6, 2017)............................. 15

84 Fed. Reg. 66,612 (Dec. 5, 2019)........................... 15

87 Fed. Reg. 9,798 (Feb. 22, 2022).................... 16, 17,

18, 38, 39, 40, 42, 52

87 Fed. Reg. 31,470 (May 24, 2022) ................. 16, 17,

38, 39, 42

ix

88 Fed. Reg. 9,336 (Feb. 13, 2023)...................... 5, 18,

19, 20, 32, 38, 39, 40,

42, 43, 46, 49, 50,

53, 54, 55, 56

Black’s Law Dictionary (5th ed. 1979) .................... 28

H.R. Rep. No.95–294 (1977)..................................... 12

Merriam-Webster Dictionary (1974) ....................... 48

Oxford English Dictionary (2d ed. 1989) ................. 28

Recommendations of the Administrative

Conference of the United States,

41 Fed. Reg. 56,767

(Dec. 30, 1976)....................................10, 11, 12, 37

Webster’s Third New Int’l Dictionary (1976) .......... 28

INTRODUCTION

Under Section 307(b)(1) of the Clean Air Act

(“CAA”), challenges to “nationally applicable” EPA

actions—as well as challenges to actions that EPA

validly determines have a “nationwide scope or

effect”—must be filed in the D.C. Circuit, while

challenges to EPA actions that are “locally or

regionally applicable” must go to the regional

Circuits.

42 U.S.C. § 7607(b)(1).

This regime

embodies Congress’ judgment that while the D.C.

Circuit is best positioned to resolve challenges to EPA

actions that operate nationwide or otherwise impact

the entire Nation, the regional Circuits are better

suited for adjudicating the legality of all other EPA

actions under the CAA.

Determining the appropriate venue for challenges

to EPA’s approval or disapproval of a State

Implementation Plan (“SIP”) under Section 307(b)(1)

is easy. “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, 455–56 (D.C. Cir. 2013) (Kavanaugh, J.)

(citations omitted). And the CAA’s venue provision’s

plain text treats EPA’s disapproval of a SIP in the

same way as an approval, with both types of actions

challengeable in the appropriate regional Circuit by

default. After all, a SIP regulates emission sources

2

only within one State. Such an action is by its nature

and statutory definition only locally applicable.

Application of these Section 307(b)(1) principles

to the case here is thus straightforward. After EPA

disapproved Utah’s SIP and Oklahoma’s SIP for

nitrogen oxides (NOx) emissions, several parties

(including Petitioners here) challenged those

disapprovals in the Tenth Circuit. That is the proper

venue for those two separate challenges to two

separate EPA actions.

Neither of these SIP

disapprovals is “nationally applicable,” as EPA only

acted on each State’s submission based on that

submission, thus each disapproval comprised EPA’s

action as to only one State.

While Section 307(b)(1) allows EPA to “determine

that [ ] otherwise locally or regionally applicable

regulations have a nationwide scope or effect,” Am.

Rd. & Transp. Builders Ass’n, 705 F.3d at 455—and

thereby establish the D.C. Circuit as the appropriate

venue—EPA did not validly make that determination

here with regard to the two relevant actions: EPA’s

disapproval of both Utah’s SIP submission and

Oklahoma’s SIP submission, respectively. Rather,

EPA asserted that its disapprovals of 21 States’

submissions together had a “nationwide scope or

effect.” But the statutory focus of Section 307(b)(1) is

the relevant EPA action, which here is EPA’s

individually disapproving Utah’s SIP and Oklahoma’s

SIP. It would, of course, be impossible for EPA to

have issued its disapproval for either of those two

3

individual SIPs “based on a determination” of

“nationwide scope or effect.” 42 U.S.C. § 7607(b)(1).

After all, each SIP governs NOx emissions only within

one State. Although EPA (erroneously) claims that

Utah’s and Oklahoma’s emissions unlawfully affect

areas outside the borders of each State, even that

effect is regional, not national, because the alleged

impacts are limited to one portion of one downwind

State (for Utah) and portions of two downwind States

(for Oklahoma).

The Tenth Circuit nevertheless transferred these

cases challenging EPA’s disapprovals of Utah’s SIP

and Oklahoma’s SIP to the D.C. Circuit, after

concluding that EPA’s actions were “nationally

applicable” under Section 307(b)(1). The Tenth

Circuit rested its holding on two features of EPA’s

disapprovals. First, the Tenth Circuit pointed to

EPA’s administrative decision to package its

disapprovals of Utah’s SIP and Oklahoma’s SIP into

a single Federal Register notice along with notices

disapproving 19 other individual SIPs. Second, the

Tenth Circuit pointed to EPA’s claim to apply

common analytical methods to all 21 of its SIP

disapprovals in that notice.

The

Tenth

Circuit’s

approach

violates

Section 307(b)(1). The statutory text and structure do

not empower EPA to transform a “locally or regionally

applicable” action on a single SIP submission into a

“nationally applicable” one by aggregating that SIP

disapproval with other States’ disapprovals in a

4

single Federal Register notice, whether out of EPA’s

desire for administrative convenience, to wrest

control of interstate emissions from individual States,

or to forum-shop to the D.C. Circuit. Section 307(b)(1)

sets “the locus of judicial review of the actions of

EPA,” Harrison v. PPG Indus., Inc., 446 U.S. 578, 586

(1980), based upon Congress’ judgment about which

Circuits are best equipped to consider the actions at

issue, not based upon EPA’s preference of where to

defend those actions.

Similarly, EPA’s claimed reliance on the use of

common analytical methods for all 21 of its SIP

disapprovals does not make disapproving Utah’s SIP

or

Oklahoma’s

SIP

nationally

applicable.

Section 307(b)(1) does not focus on whether EPA

applied a consistent methodology when taking the

disputed action. Rather, it looks to whether that

action itself is nationally applicable. Any other

conclusion would gut Section 307(b)(1)’s preference

that the regional Circuits evaluate locally and

regionally applicable actions.

After all, the

Administrative Procedure Act (“APA”) and the CAA

require EPA to act in a consistent manner.

This Court should reverse the judgment of the

Tenth Circuit and remand with instructions to

proceed to the merits of the petitions.

5

DECISION BELOW

The Tenth Circuit’s February 27, 2024, decision

granting in part EPA’s motions to dismiss or transfer

and directing transfer is reported at 93 F.4th 1262

and reproduced at Pet.App.1a–17a.

JURISDICTION

The Tenth Circuit entered its order granting in

part EPA’s motions to dismiss or transfer and

directing transfer on February 27, 2024. Pet.App.1a–

17a. This Court has jurisdiction to review that order

under 28 U.S.C. § 1254(1). This Court granted the

Petition For A Writ Of Certiorari on October 21, 2024.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant portions of Sections 110 and 307 of

the CAA, 42 U.S.C. §§ 7410, 7607, are set forth at

Pet.App.26a–35a.

EPA published its final

disapprovals of Utah’s SIP and Oklahoma’s SIP in the

Federal Register at 88 Fed. Reg. 9,336 (Feb. 13, 2023).

STATEMENT OF THE CASE

A. Legal Background

1. By adopting the Clean Air Act, Congress

enacted an air-pollution-control regime that

“envisions States and the federal government

6

working together to improve air quality.” Ohio v.

EPA, 603 U.S. 279, 283 (2024); see 42 U.S.C. § 7401.

In this cooperative-federalism framework, Congress

created “three main regulatory programs to control

air pollution from stationary sources such as power

plants,” including the National Ambient Air Quality

Standards (“NAAQS”) program—the program at

issue here. West Virginia v. EPA, 597 U.S. 697, 707

(2022) (identifying the other two programs as the

“New Source Performance Standards program” and

the “Hazardous Air Pollutants (HAP) program”).

The NAAQS program is the centerpiece of the

CAA’s federal-state collaboration. This program

regulates air pollutants like ozone, which “‘may

reasonably be anticipated to endanger public health

or welfare,’ and ‘the presence of which in the ambient

air results from numerous or diverse mobile or

stationary sources.’”

Id. (quoting 42 U.S.C.

§ 7408(a)(1)). Congress assigned distinct roles to EPA

and the States under the NAAQS program. Congress

tasked EPA with “identifying” the pollutants

regulated and then periodically “establish[ing] a

NAAQS for each.” Id.; Ohio, 603 U.S. at 283; see 42

U.S.C. §§ 7408–09. The NAAQS for a given pollutant

“represents ‘the maximum airborne concentration of

the pollutant that the public health can tolerate.’”

West Virginia, 597 U.S. at 707 (quoting Whitman v.

Am. Trucking Ass’n, Inc., 531 U.S. 457, 465 (2001)

(brackets omitted)). Congress did not authorize EPA

to “choose which sources [within any State] must

reduce their pollution and by how much to meet the

7

ambient pollution target.” Id. Instead, Section 110

gives each State the primary responsibility to

regulate air pollution from sources within its borders

to meet the NAAQS. Ohio, 603 U.S. at 283.

A State meets its air-pollution-regulation

obligations under the CAA’s NAAQS program by

designing

a

SIP

that

provides

for

the

“implementation, maintenance, and enforcement” of a

given NAAQS in its jurisdiction.

42 U.S.C.

§ 7410(a)(1).

States have “wide discretion in

formulating” their respective SIPs. Union Elec. Co. v.

EPA, 427 U.S. 246, 250 (1976). A “State is at liberty

to adopt [in its SIP] whatever mix of emission

limitations it deems best suited to its particular

situation,” “so long as the ultimate effect of [the]

State’s choice of emission limitations is compliance

with the national standards for ambient air.” Train

v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 79 (1975).

Relevant here, a State’s SIP must comply with

certain interstate-transport obligations. 42 U.S.C.

§ 7410(a)(2)(D)(i)(I); Ohio, 603 U.S. at 283–84. The

CAA recognizes that “air currents can carry pollution

across state borders,” meaning that “emissions in

upwind States sometimes affect air quality in

downwind States.” Ohio, 603 U.S. at 283–84. So, to

resolve that “externality problem,” id., Section 110

requires a State to develop a SIP to address

interstate-transport of pollutants from within that

State, requiring the SIP to “contain adequate

provisions . . . prohibiting . . . any source or other type

8

of emissions activity within the State from emitting

any air pollutant in amounts which will . . . contribute

significantly to nonattainment in, or interfere with

maintenance by, any other State with respect to any

[NAAQS],” 42 U.S.C. § 7410(a)(2)(D).

Congress requires EPA to review every State’s

plan to ensure that each individual SIP complies with

the CAA. Id. § 7410(k)(1)–(3); Union Elec., 427 U.S.

at 250. EPA “has no authority to question the wisdom

of a State’s choices of emission limitations” in a SIP

when EPA conducts its compliance review. Ohio, 603

U.S. at 284 (quoting Train, 421 U.S. at 79). “So long

as a SIP satisfies the ‘applicable requirements’ of the

Act . . . , EPA ‘shall approve’ it within 18 months of its

submission.” Id. (quoting 42 U.S.C. § 7410(k)(3), and

citing 42 U.S.C. § 7410(k)(1)(B), (k)(2)). Only if EPA

first finds that a State has failed to submit a CAAcompliant SIP does EPA gain the authority to

promulgate a “Federal Implementation Plan” (“FIP”)

“for the noncompliant State.” Id. (quoting 42 U.S.C.

§ 7410(c)(1)).

2. Section 307(b)(1) establishes the appropriate

venue for challenges to EPA action under the CAA,

including challenges to EPA approving or

disapproving a SIP under Section 110. 42 U.S.C.

§ 7607(b)(1); see Harrison, 446 U.S. at 584–85.

Section 307(b)(1) sets out a default rule for venue and

an exception to that rule in its first three sentences.

9

In Section 307(b)(1)’s first two sentences,

Congress provides the default rule to determine the

appropriate venue for challenges to EPA’s actions.

The first sentence describes what challenges must be

heard in the D.C. Circuit by listing actions authorized

by the CAA where EPA sets national policy, such as

any “national primary or secondary ambient air

quality standard” and “any emission standard or

requirement” in Section 112, among others, and then

by including a catchall provision for challenges to

“any other nationally applicable” EPA actions “under

this chapter.” 42 U.S.C. § 7607(b)(1). The second

sentence has the same structure, describing what

challenges must be heard in the appropriate regional

Circuit by listing actions authorized by the CAA

where EPA implements the CAA on a case-by-case

basis, such as by “approving or promulgating any

implementation plan” under Section 110. Id. This

sentence then provides a catchall for “any other final

action . . . under this chapter (including any denial or

disapproval

by

the

Administrator

under

subchapter I)”—which includes Section 110 of the

CAA—that “is locally or regionally applicable.” Id.

Thus, the text clearly enumerates that, when EPA

disapproves a SIP, that final action is “a[ ] denial or

disapproval by the Administrator under subchapter I”

and thus a “locally or regionally applicable” action.

Id.

Section 307(b)(1)’s third sentence creates a

limited exception to the default rule in the first two

sentences. A petition for review of a “locally or

10

regionally applicable” action may be filed in the D.C.

Circuit “if such action is based on a determination of

nationwide scope or effect” and EPA “finds and

publishes that such action is based on such a

determination.” Id. Put another way, this exception

provides that challenges to certain actions that

ordinarily must be heard in the regional Circuits will

be heard in the D.C. Circuit when those “otherwise

locally or regionally applicable regulations have a

nationwide scope or effect.” Am. Rd. & Transp.

Builders Ass’n, 705 F.3d at 455.

Congress’ changes to Section 307 show concern

with the venue for challenges to SIP-related actions.

As originally enacted, Section 307 provided that SIP

approvals could be challenged “only” in the

“appropriate circuit.” Clean Air Act Amendments of

1970, Pub. L. No.91-604, § 12(a), 84 Stat. 1676, 1708

(1970). This prompted concern that the failure to

specify the “appropriate circuit” would create

“threshold litigation over the question of which is the

appropriate circuit,” with the Administrative

Conference of the United States recommending that

Congress “clarify[ ] that the appropriate circuit is the

one containing the state whose plan is challenged.”

Recommendations of the Administrative Conference

of the United States, 41 Fed. Reg. 56,767, 56,767

(Dec. 30, 1976).

EPA’s then-General Counsel, G. William Frick,

advocated for a narrow exception to the

Administrative Conference’s recommendation that all

11

“SIP issues” be reviewed “in the local circuit.” Id.

at 56,768–69. Frick noted that while “approval and

promulgation of [SIPs] under the Clean Air Act

usually involve issues peculiar to the affected States,”

EPA sometimes takes actions such as granting “twoyear extensions of the date for attainment of national

ambient air quality standards in a number of

metropolitan areas and its promulgation of generic

regulations (applicable to all States) that require

prevention of significant deterioration of air quality.”

Id.; see Dayton Power & Light Co. v. EPA, 520 F.2d

703 (6th Cir. 1975) (addressing regulations that

“amend[ed] every state’s [SIP] in precisely the same

way”); NRDC v. EPA, 465 F.2d 492 (1st Cir. 1972)

(addressing two-year extension and similar issues).

For this subset of SIP-related actions—which do not

involve EPA granting or denying a particular State’s

SIP—EPA’s conduct is “virtually identical to

promulgation of ‘national standards.’” 41 Fed. Reg.

at 56,769. Frick explained that “the validity” of such

a “nationally applicable regulation will not turn on

the particulars of its impacts within a given Circuit,”

including because “such actions typically involve

establishment or application of uniform principles for

all States, are taken on a single administrative

record, and do not involve factual questions unique to

particular geographical areas.” Id. at 56,769 & n.2.

Soon after, in 1977, Congress amended

Section 307 to its current form. See Clean Air Act

Amendments of 1977, Pub. L. No.95-95, § 305(c), 91

Stat. 685, 776 (1977); Safe Drinking Water Act

12

Amendments of 1977, Pub. L. No.95-190, § 14(a)(80),

91 Stat. 1393, 1404 (1977) (technical amendment).

Congress first amended the first two sentences to

include the catchall provisions. Pub. L. No.95-95,

§ 305(c)(1)–(2), 91 Stat. at 776. This expanded the

jurisdiction of the courts of appeals from just the

enumerated actions in each sentence to “any other

nationally applicable regulations promulgated, or

final action taken” or “any other action.” Harrison,

446 U.S. at 590. Congress then passed technical

amendments noting “any denial or disapproval by the

Administrator under title I” was locally or regionally

applicable within that catchall, Pub. L. No.95-190,

§ 14(a)(80), 91 Stat. at 1404, to “clarify some

questions relating to venue for review of rules or

orders,” Harrison, 446 U.S. at 590 (citing H.R. Rep.

No.95–294, at 323–24 (1977)). The House Report

accompanying the 1977 Clean Air Act Amendments

explained that the amendments “provide[ ] for

essentially locally, stateside, or regionally applicable

rules or orders,” such as actions on SIPs, “to be

reviewed in the U.S. court of appeals for the circuit in

which such locality, State, or region is located.” H.R.

Rep. No.95-294, at 323. It noted that “the committee’s

view . . . concurs . . . with the comments, concerns,

and recommendation contained” in Frick’s separate

statement regarding the CAA’s venue provisions. Id.

at 324 (citing 41 Fed. Reg. at 56,768).

13

B. Factual And Procedural Background

1. In 2015, EPA lowered the NAAQS for groundlevel ozone to 70 parts per billion (“ppb”). 80 Fed. Reg.

65,292 (Oct. 26, 2015). Once EPA lowered the

NAAQS for ground-level ozone, States had the duty to

submit new SIPs within three years, or by 2018. See

42 U.S.C. § 7410(a)(1). Utah and Oklahoma created

their state-specific implementation plans, which are

the subject of the petitions here.

Utah promptly began designing its SIP for

submission to EPA following the issuance of the 2015

ozone NAAQS. See JA33a, 60a. Utah “engaged early

and often” with EPA to ensure that it crafted an

interstate-transport SIP that satisfied its CAA

obligations. JA60a. EPA provided comments on

drafts of Utah’s SIP, JA60a–61a, encouraging Utah to

apply EPA guidance regarding the setting of a 1-partper-billion emissions-contribution threshold for

determining whether NOx emissions contributions (as

measured by localized air quality receptors) to

downwind States were significant, JA61a; see 42

U.S.C. § 7410(a)(2)(D)(i)(I). EPA also recommended

that Utah elaborate in its SIP on the contributions of

NOx to downwind States from biogenic and

international emissions. See JA49a, 60a–61a.

After incorporating EPA’s feedback, Utah

concluded in its SIP that its contributions to the air

quality in downwind States were not significant and,

therefore, additional emissions reductions by Utah

14

sources were not necessary under Section 110. See

JA57a. Utah rested that conclusion upon state- and

region-specific facts and analyses relating to Utah’s

unique

topographical,

geographical,

and

meteorological characteristics, as well as EPA

guidance.

JA57a, 65a–66a.

Utah began by

identifying five receptors in Colorado’s Denver

Metro/North Front Range Nonattainment Area where

Utah’s emissions contributed to those receptors

exceeding 1 percent of the 2015 ozone NAAQS—three

nonattainment receptors and two maintenance

receptors. JA43a–44a. Following EPA’s earlier

guidance, Utah screened those receptor sites using

the 1-part-per-billion threshold to determine that

Utah’s emissions were “linked” only to four of these

receptors. JA43a–45a, 50a. Utah applied a “weightof-the-evidence” approach, consistent with past EPA

practice, to determine whether its contributions

contributed “significantly” to the nonattainment, or

“interfere[d] with” the maintenance of the 2015 ozone

NAAQS in Colorado. JA42a–43a, 57a. In particular,

Utah considered that Colorado’s own in-state

contributions were much greater, a phenomenon far

more often observed in western States than eastern

States. JA47a–49a. Utah further considered that

international emissions, emissions from wildfires,

and biogenic emissions also contributed much more

significantly than Utah’s own contributions. JA49a–

51a. And Utah noted that it had seen substantial

emissions reductions in its State from 2011 to 2017,

and that it expected this downward trend to continue.

15

JA51a–57a. Utah submitted its revised, proposed SIP

to EPA on January 24, 2020. See JA33a–34a.1

Oklahoma similarly began the arduous process of

constructing its interstate-ozone SIP shortly after the

2015 NAAQS issued. It began by identifying the

appropriate air quality model, which turned out to be

Texas’s regional model based on year 2012. JA13a–

18a. Oklahoma found that the Texas model

appropriately accounted for regional effects and its

updated data did not use meteorological conditions in

2011 (a meteorological extreme year for the region) in

contrast to EPA’s model. JA13a–18a. Oklahoma also

relied on EPA’s 2018 guidance documents which

advised that States had flexibility in choosing

between a 1 part-per-billion NOx threshold and a one

percent threshold that produced insignificant

differences. JA16a–18a. And Oklahoma relied on

EPA’s guidance that approved a “weight of the

evidence” analysis. See 82 Fed. Reg. 1,733, 1,740

(Jan. 6, 2017); JA23a–26a.

Relying on EPA’s contemporaneous guidance,

Oklahoma timely filed its SIP, which ultimately

concluded that its contributions to the air quality in

downwind States were not significant and that it did

not need any more stringent emissions reductions

1 EPA initially made an incompleteness determination on

Utah’s SIP relating to adequate public notice, 84 Fed. Reg.

66,612, 66,614 (Dec. 5, 2019), which Utah corrected, JA33a–34a.

16

(than already in place) under its Section 110approved SIP for other emissions. JA1a–3a, 26a.

Oklahoma’s SIP analyzed whether areas in downwind

States, initially Michigan2 and Texas, would fail to

attain or maintain the 2015 ozone NAAQS under the

1 part-per-billion threshold. JA21a–25a. In its

complex analysis of localities in those States,

Oklahoma determined that the localities would reach

attainment under Texas’s 2012 regional model and

confirmed this analysis by further reviewing local

trends for the identified sites. JA20a–25a. Oklahoma

then reviewed its own emissions trends and found

that its projected contribution to the Michigan locale

comprised only three percent of all upwind

contributions there. JA25a–26a. The State further

considered that its current emissions controls would

continue to reduce its emissions to half its 2011 levels.

JA25a–26a; see JA16a–17a.

2. After EPA unlawfully delayed its actions on

Utah’s SIP and Oklahoma’s SIP for years beyond its

statutory review period, 42 U.S.C. § 7410(k)(2), EPA

separately proposed to disapprove Utah’s SIP, see 87

Fed. Reg. 31,470 (May 24, 2022); and Oklahoma’s SIP,

see 87 Fed. Reg. 9,798 (Feb. 22, 2022).

2 EPA ultimately agreed that Oklahoma’s emissions would

not impact Allegan County, Michigan. 87 Fed. Reg. 9,798, 9,820

(Feb. 22, 2022).

17

In its proposed disapproval of Utah’s SIP, EPA

disagreed with Utah’s determination that sources

within Utah did not significantly contribute to

nonattainment of the 2015 NAAQS for ozone for

certain areas in Colorado. 87 Fed. Reg. at 31,483.

EPA began by rejecting Utah’s conclusion “that a 1

ppb threshold is appropriate for the Denver area

receptors to which it is linked” because Utah “did not

adequately explain how a 1 ppb threshold would be

justified with respect to all the [Colorado] receptors to

which Utah is linked.” Id. at 31,478; see also id.

at 31,478–82. EPA then rejected Utah’s analysis that

the evidence, which included “the relatively large

impact”

of

“international

emissions,”

“nonanthropogenic emissions,” and “home state emissions

at the Colorado receptors,” as well as “emissions

reductions already achieved as a result of other

regulatory programs,” weighed against finding a

significant cross-state impact. Id. at 31,482; see also

id. at 31,482–83.

As for Oklahoma’s SIP, EPA proposed to

disapprove it, along with submissions from Texas,

Arkansas, and Louisiana, in February 2022. 87 Fed.

Reg. 9,798. EPA’s decision to disapprove Oklahoma’s

SIP relied heavily on rejecting the Texas 2012

modeling based on alleged technical flaws related to

identification of maintenance-only receptors. Id.

at 9,820–21. Instead, EPA applied new modeling

(unavailable to Oklahoma when it formulated its SIP)

that identified linkages between Oklahoma’s

emissions and Denton County, Texas and Cook

18

County, Illinois. Id. at 9,822.3 It then found that

Oklahoma had failed to analyze what emissions

should be prohibited to prevent emissions from

interfering with the maintenance of the 2015 ozone

NAAQS in those two areas. Id. EPA rejected

Oklahoma’s choice of screening threshold and

analysis of existing emissions reductions to electric

generating units that had caused a downward trend

in emissions. Id. at 9,823. EPA similarly denied

Oklahoma’s weight of the evidence analysis that took

into account local emissions data and collective

contributions to support its finding that Oklahoma’s

emissions did not significantly contribute to

downwind air quality issues. Id.

After separately proposing to disapprove Utah’s

SIP and Oklahoma’s SIP, EPA packaged its final

disapprovals of these submissions in one Federal

Register notice, along with the disapprovals for 19

other SIPs and deferrals on two other SIPs. 88 Fed.

Reg. 9,336, 9,337–38 (Feb. 13, 2023).

In that

combined Federal Register notice, EPA explained

that it had acted on each State’s SIP “in light of the

facts and circumstances of each particular state’s

submission,” id. at 9,340, meaning that “the contents

of each individual state’s submission were evaluated

3 EPA further revised its modeling prior to issuing its final

disapproval. See 88 Fed. Reg. 9,336, 9,339 (Feb. 13, 2023). That

new modeling added a new linkage to Galveston County, Texas.

See JA255a.

19

on their own merits,” id. at 9,354. The combined

Federal Register notice contained only “a brief, high

level overview of the SIP submissions and the EPA’s

evaluation and key bases for disapproval,” while

explaining that “[t]he full basis for the EPA’s

disapprovals is available in the relevant Federal

Register notification of proposed disapproval for each

state,” as well as in certain technical supporting

documents and in EPA’s responses to comments. Id.

So, when EPA disapproved Utah’s SIP and

Oklahoma’s SIP, EPA provided only one-paragraph,

“high level overview[s]” of the bases for its actions, id.

that largely reiterated and incorporated EPA’s prior

reasoning from its separately proposed disapprovals

of Utah’s SIP and Oklahoma’s SIP, id. at 9,360

(Utah); id. at 9,359 (Oklahoma).

Finally, EPA addressed in the combined Federal

Register notice what it claimed was the proper venue

for any challenges to its actions on the 21 SIPs in the

combined Federal Register notice. Id. at 9,380–81.

EPA claimed that “[t]his rulemaking is ‘nationally

applicable,’” meaning that challengers must file their

petitions in the D.C. Circuit. Id. at 9,380. According

to EPA, it took a single “final action” “applying a

uniform legal interpretation and common, nationwide

analytical methods” “to disapprove SIP submissions

that fail to satisfy the[ ] requirements for the 2015

ozone NAAQS.” Id. EPA claimed the “action” was

nationally applicable because it “addresses

implementation of the good neighbor provision” in 21

20

States across the country and due to “the

interdependent nature of interstate pollution

transport and the common core of knowledge and

analysis involved in evaluating the submitted

SIPs.” Id.

“In the alternative,” EPA claimed that for the

same “final action,” it “exercis[ed] the complete

discretion afforded to [the agency] under the CAA to

make and publish a finding that this action is based

on a determination of ‘nationwide scope or effect.’” Id.

EPA asserted that the “final action” had a nationwide

scope or effect because it applied a uniform statutory

interpretation to a “common core of nationwide policy

judgments and technical analysis concerning the

interstate transport of pollutants throughout the

continental U.S.” Id. But EPA also explained that it

“evaluated each state’s arguments for the use of

alternative approaches or alternative sets of data” to

avoid inequitable results between the States. Id.

at 9,381. Notably, EPA only refers to taking one

action in the combined Federal Register notice. See

id. at 9,380–81.

3. Petitioners—who are industry members with

significant interests in Utah and Oklahoma—each

challenged EPA’s disapproval of Utah’s SIP or its

disapproval of Oklahoma’s SIP in the Tenth Circuit.

See generally Pet.App.9a. The States of Utah and

Oklahoma also filed their own separate petitions for

review challenging EPA’s disapproval of their own

SIPs in the Tenth Circuit.

See Pet.App.9a.

21

Petitioners, Utah, and Oklahoma all specified in their

petitions for review that they were challenging only

EPA’s action disapproving Utah’s SIP or Oklahoma’s

SIP, as appropriate. See generally Pet.App.12a.

Thus, Petitioners, Utah, and Oklahoma asserted that

venue for their respective challenges was appropriate

in the Tenth Circuit, under Section 307(b)(1).

The parties engaged in extensive venue and stay

proceedings. After EPA moved the Tenth Circuit to

transfer venue for the petitions to the D.C. Circuit,

Pet.App.9a, a Tenth Circuit panel—Judges

Tymkovich, Bacharach, and Rossman—entered an

order referring EPA’s motions to transfer venue to the

merits panel. Order, Utah v. EPA, Nos.23-9509, et al.,

Doc.10994985 (10th Cir. Apr. 27, 2023). Then, on July

27, 2023, the Tenth Circuit—Judges Tymkovich and

Carson—granted motions to stay the disapprovals of

Utah’s SIP and Oklahoma’s SIP, finding that

“petitioners have satisfied their burden as to each” of

the stay factors. Order at 4, Utah, Nos.23-9509, et al.,

Doc.11016742 (10th Cir. July 27, 2023). The parties

then completed full merits briefing, see Order at 3–4,

Utah, Nos.23-9509, et al., Doc.11002290 (10th Cir.

May 30, 2023); Minute Order, Utah, Nos.23-9509, et

al., Doc.11038946 (10th Cir. Oct. 25, 2023), and the

Tenth Circuit set the case for oral argument on March

21, 2024, Notice, Utah, Nos.23-9509, et al.,

Doc.11058134 (10th Cir. Jan. 10, 2024).

Shortly before oral argument, the Tenth Circuit

changed course and granted EPA’s motion to transfer

22

to the D.C. Circuit. Pet.App.18a–25a; Pet.App.1a–

17a. The Tenth Circuit—Judges Moritz, Ebel, and

Rossman—held that the D.C. Circuit was the

appropriate venue based on Section 307(b)(1)’s first

sentence, Pet.App.6a–7a, concluding that the “final

rule” is “nationally applicable” for two reasons,

Pet.App.11a. First, the court found that EPA’s

actions here are “nationally applicable” because EPA

“disapprov[ed] SIPs from 21 states across the

country—spanning eight EPA regions and ten federal

judicial circuits.” Pet.App.11a. Second, the Tenth

Circuit concluded that these actions are “nationally

applicable” because EPA applied “consistent

statutory interpretation and uniform analytical

methods.” Pet.App.14a. The Tenth Circuit did not

“address the EPA’s alternative argument that the

petitions belong in the D.C. Circuit” “because [the

final rule] ‘is based on a determination of nationwide

scope or effect’ made and published by the EPA.”

Pet.App.17a n.8.

Other States and industry groups challenged EPA

disapproving their respective States’ SIPs in that

Federal Register notice in the appropriate regional

Circuits, with the Tenth Circuit being the only court

to have transferred the challenges to the D.C. Circuit.

The Fourth, Fifth, and Eighth Circuits all rejected

EPA’s attempt to transfer those challenges to the D.C.

Circuit, with the Fourth and Fifth Circuits providing

detailed opinions. West Virginia v. EPA, 90 F.4th 323

(4th Cir. 2024); Texas v. EPA, No.23-60069, 2023 WL

7204840 (5th Cir. May 1, 2023); Order, Arkansas v.

23

EPA, No.23-1320, Doc. 5280996 (8th Cir. May 25,

2023). The Sixth, Ninth, and Eleventh Circuits

deferred venue determinations to merits panels. E.g.,

Order, Alabama v. EPA, No.23-11173, Dkt.24 (11th

Cir. July 12, 2023). Thereafter, and most recently,

the Sixth Circuit denied EPA’s motion to transfer

venue, in a detailed opinion that also vacated EPA’s

disapproval of Kentucky’s SIP. Kentucky v. EPA,

No.23-3216, 2024 WL 5001991 (6th Cir. Dec. 6, 2024).

This Court granted the Petition For A Writ Of

Certiorari and consolidated this case for briefing and

oral argument with No.23-1067.

SUMMARY OF THE ARGUMENT

I. The CAA’s default venue provision places

challenges to EPA decisions on SIPs—like EPA’s

disapproval of Utah’s SIP and Oklahoma’s SIP—in

the appropriate regional Circuit, which here is the

Tenth Circuit.

A. Congress decided that the nature of EPA’s

statutory action should determine which Circuit

hears the case. Section 307(b)(1)’s text enumerates

EPA actions that are “nationally applicable” or

“locally or regionally applicable.” In its first sentence,

Section 307(b)(1) explains that the D.C. Circuit must

hear challenges to EPA “promulgating any national

primary or secondary ambient air quality standard.”

42 U.S.C. § 7607(b)(1). And in Section 307(b)(1)’s

second sentence, the regional Circuit hears disputes

24

over EPA “approving or promulgating any

implementation plan under Section 110,” including

any “denial or disapproval” of an implementation

plan. Id. The CAA includes catchall provisions for

any other non-enumerated final action “under this

chapter,” that either sets national policy and is

“nationally applicable” or involves implementing

national policy on a case-by case basis and is therefore

“locally or regionally applicable.” Id. The latter

catchall also expressly “includ[es] any denial or

disapproval

by

the

Administrator

under

subchapter I.” Id.

B. Challenges to EPA disapproving Utah’s SIP

and Oklahoma’s SIP belong in the Tenth Circuit

under the default venue provision. Section 307(b)(1)

mandates that these state-specific SIP disapprovals

are not nationally applicable. And due to the “purely

local” nature of a SIP, ATK Launch Sys., Inc. v. EPA,

651 F.3d 1194, 1199 (10th Cir. 2011) (Murphy, J.,

joined by Gorsuch & Hartz, JJ.), EPA action on a

State’s SIP submittal is “the prototypical locally or

regionally applicable action” that belongs in the

regional Circuit. Am. Rd. & Transp. Builders Ass’n,

705 F.3d at 455–56. This “includ[es] any denial or

disapproval” of a SIP, as Section 307(b)(1)’s text

expressly notes. 42 U.S.C. § 7607(b)(1). And EPA’s

notices disapproving Utah’s SIP and Oklahoma’s SIP

confirm this conclusion, as EPA evaluated each

State’s respective submission and rejected the statespecific findings about each State’s domestic

emissions sources and trends and the emissions’

25

impacts on attaining or maintaining 2015 ozone

NAAQS in different localities (one in Colorado for

Utah, and two in Texas for Oklahoma).

C. The Tenth Circuit erroneously held that EPA

disapproving Utah’s SIP and Oklahoma’s SIP were

part of a single “nationally applicable” action. The

court determined that consolidating multiple

disapprovals of 21 different SIPs by States into a

single Federal Register notice transformed the

prototypically local action into a nationally applicable

action. But the relevant statutory “action” under the

CAA’s default venue provision is the disapproval of

each individual SIP, no matter how EPA packages

that disapproval. The Tenth Circuit also believed

that merely applying a uniform statutory

interpretation and common analytical methods, as

required by the APA, creates a “nationally applicable”

action, but this has no basis in the statutory text. And

this approach would lead to absurd results because,

under the APA and the CAA, EPA must always apply

uniform methodologies in its actions.

II.A. Under Section 307(b)(1)’s exception to the

default venue rule, a petition for review of a “locally

or regionally applicable” action may only be filed in

the D.C. Circuit “if such action is based on a

determination of nationwide scope or effect” and EPA

“finds and publishes that such action is based on such

a determination.” 42 U.S.C. § 7607(b)(1). To avail

itself of this exception, EPA must correctly identify

the statutory “action” and validly determine that it

26

took the challenged action “based on a determination”

of the “nationwide scope or effect” of the action. Id.

When “otherwise locally or regionally applicable

regulations have a nationwide scope or effect,” and

EPA publishes the required finding, the D.C. Circuit

hears the challenge. Am. Rd. & Transp. Builders

Ass’n, 705 F.3d at 455.

B.1. Here, EPA based its “determination of

nationwide scope or effect” on the issuance of a single

notice covering actions that apply to many States, but

that is not a statutorily relevant action for venue

purposes. Rather, the relevant actions are those that

EPA took with regard to Utah’s and Oklahoma’s SIP

submission. EPA’s “finding” thus has no legal effect

because EPA improperly defined the “action” at issue.

2. Analyzing the correct action (EPA individually

disapproving Utah’s and Oklahoma’s SIPs), EPA’s

decisions have no nationwide scope or effect. These

SIPs regulate only sources within each State and

analyze in-state sources of ozone-causing emissions

on a state-specific basis.

For example, Utah

determined that modeling for the eastern United

States insufficiently described ozone transport in the

western United States, and Utah’s local analysis

showed fewer receptors in Denver linked to Utah’s

emissions. Oklahoma, by contrast, relied in part on

Texas’s 2012 air modeling because that model more

accurately described conditions in the southern

United States than EPA’s model, including in Texas

where Oklahoma’s emissions could potentially impact

27

attainment. EPA’s disapprovals of these two different

decisions could not have nationwide scope because the

decisions did not even apply to both Oklahoma and

Utah as each State had made modeling and

attainment findings unique to its geographic

circumstances.

Nor could EPA have based its

disapproval on a determination of nationwide “effect”

because—even under EPA’s reasoning—emissions

from Utah impacted a handful of receptors in

neighboring Colorado and emissions from Oklahoma

affected a limited number of receptors in Texas.

3. EPA’s assertions that its Utah SIP and

Oklahoma SIP disapprovals are based on a

determination of nationwide scope or effect lack

merit. Under EPA’s reading, every EPA action

applying a national standard has nationwide scope or

effect, which would render Section 307(b)(1)’s second

sentence pure surplusage. Similarly, EPA’s claim

that its technical analysis had nationwide scope or

effect fails because EPA admitted that it made

individual determinations as to what was equitable

for each individual State. And Congress did not grant

EPA unfettered discretion to determine the venue for

any challenge. Congress set up a careful statutory

scheme so that courts would examine the

“geographical aspects of the factual and analytical

circumstances of the agency’s determination” to

determine whether a final action has nationwide

scope. West Virginia, 90 F.4th at 328. That

independent judicial inquiry reveals EPA’s actions to

be quintessentially local, requiring reversal.

28

ARGUMENT

I.

EPA’s Actions Disapproving Utah’s SIP And

Oklahoma’s SIP Are “Locally Or Regionally

Applicable” Actions Under Section 7607(b)(1)’s

Default Venue Provision

A. Section 307(b)(1)’s first two sentences create a

default rule for determining the appropriate venue for

challenges to EPA’s actions under the CAA, while

Section 307(b)(1)’s third sentence creates a limited

exception to that default rule. See infra Part II

(addressing Section 307(b)(1)’s third sentence).

Section 307(b)(1)’s first sentence sets the D.C.

Circuit as the default venue for challenges to EPA

actions that are “nationally applicable.” 42 U.S.C.

§ 7607(b)(1).

As a textual matter, “nationally

applicable” applies to the terms “regulations

promulgated, or final action taken” by EPA. Id.

“[T]he regulations or action must ‘have reference to’

(‘applicable’) the ‘nation as a whole’ (‘nationally’).”

Kentucky, 2024 WL 5001991, at *7 (citing definitions

from 1 Oxford English Dictionary 575 (2d ed. 1989);

10 Oxford English Dictionary, supra, at 235;

Webster’s Third New Int’l Dictionary 105, 1505

(1976)). The word “‘[n]ational’ contemplates an

activity with a nationwide scope.” Id. (citing Black’s

Law Dictionary 923 (5th ed. 1979)).

The structure of the first sentence confirms this

reading. It begins by enumerating EPA actions under

29

the CAA that are always “nationally applicable”—

actions challengeable in the D.C. Circuit by default.

Id. at *6. This list includes, for example, “[an] action

of the Administrator in promulgating any national

primary or secondary ambient air quality standard,

any emission standard or requirement under section

[112],” as well as “any standard of performance or

requirement under section [202].”

Id. (citation

omitted). These actions all share the common feature

of EPA setting national policy or standards for

subsequent implementation across the Nation. See

id. at *7. Section 307(b)(1)’s first sentence then ends

with a catchall provision, which identifies the D.C.

Circuit as the venue for challenges to “any other

nationally applicable” EPA actions “under this

chapter.” 42 U.S.C. § 7607(b)(1); Kentucky, 2024 WL

5001991, at *7.

Section 307(b)(1)’s second sentence follows the

same structure but sets the appropriate regional

Circuits as the default venue for challenges to EPA

actions that are “locally or regionally applicable.” 42

U.S.C. § 7607(b)(1). The second sentence begins by

listing certain EPA actions that are categorically

“locally or regionally applicable,” challengeable in the

appropriate regional Circuit by default. Id. For

example, and most relevant here, this list includes

“the Administrator’s action in approving or

promulgating any implementation plan under section

[110]”—the section governing SIPs—as well as “any

order under section [111(j)],” “under section [112],”

among other provisions. Id.; Kentucky, 2024 WL

30

5001991, at *6 (citation omitted). The enumerated

EPA actions in Section 307(b)(1)’s second sentence all

share the quality of EPA implementing national

policy on a case-by-case basis, such as by acting on

States’ individual implementation or enforcement

plans under the CAA. The second sentence then

concludes with its own catchall, setting the regional

Circuits as the default venue for challenges to “any

other final action of the Administrator under this

chapter (including any denial or disapproval by the

Administrator under subchapter I [42 U.S.C. §§ 7401

et seq.]) which is locally or regionally applicable.” 42

U.S.C. § 7607(b)(1). The phrase “including any denial

or disapproval by the Administrator under

subchapter I [42 U.S.C. §§ 7401 et seq.],” id., “makes

clear” that this catchall provision also covers EPA

disapproving a SIP under Section 110, see Yellen v.

Confederated Tribes of Chehalis Rsrv., 594 U.S. 338,

347–48, 350, (2021), as Section 110 falls within

subchapter I of the CAA.

Determining whether an EPA “action” falls

within the catchall provisions of Section 307(b)(1)’s

first or second sentences is a straightforward inquiry

that compares the challenged “action” at issue to the

enumerated list of actions in these two sentences. 42

U.S.C. § 7607(b)(1).

To begin, this inquiry requires identifying what

the

challenged

EPA

“action”

is

within

Section 307(b)(1), according to the CAA provisions

authorizing EPA to take that “action.”

Id.

31

“Administrative agencies are creatures of statute,”

NFIB v. Dep’t of Lab., Occupational Safety & Health

Admin., 595 U.S. 109, 117 (2022) (per curiam), as

“[a]gencies have only those powers given to them by

Congress,” West Virginia, 597 U.S. at 723. Thus,

Section 307(b)(1)’s references to EPA taking some

“action” refers to those actions that Congress has

authorized EPA to take. 42 U.S.C. § 7607(b)(1). The

first and second sentences of Section 307(b)(1)

reaffirm this point.

Their enumerated lists of

“action[s]” specifically cite the CAA provisions

authorizing each of the specified “action[s]”—such as

“section [110],” “section [111],” “section [112],” and the

like.

Id.

And the catchall provisions of

Section 307(b)(1)’s first and second sentences both

expressly state that they apply to other “action[s]”

taken by EPA “under this chapter,” further showing

that “action” under Section 307(b)(1) refers to actions

specifically authorized by the CAA. Id. (emphasis

added).

With the “action” at issue properly identified, the

inquiry under Section 307(b)(1)’s catchall provisions

turns to whether that “action” shares the common

characteristics of the specifically enumerated CAA

actions in Section 307(b)(1)’s first or second sentences,

so as to make it either “nationally applicable” or

“locally or regionally applicable,” respectively. Id.; see

generally Fischer v. United States, 603 U.S. 480, 487

(2024) (citations omitted) (ejusdem generis canon).

This analysis looks to the “face” of the challenged

action, rather than the action’s “practical effects.”

32

Am. Rd. & Trans. Builders Ass’n, 705 F.3d at 456.

Thus, an action will be “nationally applicable” if it is

enumerated or, under the first sentence’s catchall

provision if, like the first sentence’s enumerated

actions, the face or nature of the action sets national

policy or standards under the CAA for subsequent

implementation across the Nation. See 42 U.S.C.

§ 7607(b)(1). An action will be “locally or regionally

applicable” if it is enumerated or, under the second

sentence’s catchall provision if, like the second

sentence’s enumerated actions, it involves EPA

implementing national policy on a case-by-case basis,

such as by acting on States’ individual

implementation or enforcement plans under the CAA.

See id.; Am. Rd. & Transp. Builders Ass’n, 705 F.3d

at 455–56.

B. Here, EPA’s actions disapproving Utah’s SIP

and Oklahoma’s SIP are “locally or regionally

applicable” actions under the catchall provision of

Section 307(b)(1)’s second sentence, meaning that the

challenges to those disapprovals belong in the Tenth

Circuit by default.

First, the “action[s]” at issue here, 42 U.S.C.

§ 7607(b)(1), are EPA’s individual disapprovals of

Utah’s SIP and Oklahoma’s SIP under Section 110(k)

of the CAA, respectively, see 88 Fed. Reg. at 9,337; see

also id. at 9,360 (Utah); id. at 9,359 (Oklahoma).

Section 110(k), entitled “Environmental Protection

Agency action on plan submissions,” 42 U.S.C.

§ 7410(k) (emphasis added), authorizes EPA “to act”

33

on a State’s submission by approving it in full,

approving it in part and disapproving it in part, or

disapproving it in full, id. § 7410(k)(3); accord id.

§ 7410(k)(6). Section 110(k) also requires EPA’s

actions on a State’s SIP submission, including

disapprovals, to proceed on a state-by-state basis. Id.

§ 7410(k)(3); Union Elec., 427 U.S. at 250. Thus,

among other things, Section 110(k)(2) speaks of each

State “submitt[ing] a plan” to EPA, in the singular,

while also obligating EPA to “act on the submission,”

again in the singular.

42 U.S.C. § 7410(k)(2)

(emphases added); see also, e.g., id. § 7410(k)(3) (“such

submittal”).

Second, for purposes of the catchall provision in

Section 307(b)(1)’s second sentence, EPA’s actions in

disapproving Utah’s SIP and Oklahoma’s SIP under

the CAA are materially indistinguishable from EPA’s

“action in approving or promulgating any

implementation plan under section [110].”

Id.

§ 7607(b)(1). That is, looking to the face or nature of

EPA disapproving Utah’s SIP and Oklahoma’s SIP

alone, Am. Rd. & Trans. Builders Ass’n, 705 F.3d

at 456; ATK Launch Sys., 651 F.3d at 1199, confirms

that these actions are “locally or regionally

applicable” under Section 307(b)(1)’s second sentence

for the same reasons that EPA’s approval of a SIP is

“locally or regionally applicable” under that sentence,

42 U.S.C. § 7607(b)(1): they involve EPA

implementing the CAA by acting upon a particular

State’s SIP submission. And to the extent that any

doubt exists that a disapproval constitutes a “locally

34

or regionally applicable” action, Congress’ technical

amendments to Section 307(b)(1) to “clarify some

questions relating to venue for review of rules or

orders,” Harrison, 446 U.S. at 590 (citation omitted),

resolve it by including “any denial or disapproval by

[EPA] under subchapter I” (which includes

Section 110 implementation plans) in Section

307(b)(1)’s second sentence, making the conclusion

unmistakable, 42 U.S.C. § 7607(b)(1).

Under the CAA, a State’s SIP regulates only

emission sources “within such State,” meaning that a

SIP is—by definition—only locally (or, at most,

regionally) applicable. See id. § 7410(a)(1); accord

Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 455–

56 (SIP applies “only to certain development projects

within the geographic jurisdiction covered” (citation

omitted)). Whether EPA approves or disapproves of a

State’s SIP, the reach of that action is the same,

applying only to sources within the State at issue. See

42 U.S.C. § 7410(a)(1); Am. Rd. & Transp. Builders

Ass’n, 705 F.3d at 455–56. Thus, if EPA approves a

State’s SIP, then that SIP will “provide[ ] for

implementation, maintenance, and enforcement of [a

NAAQS] . . . within such State.” 42 U.S.C. § 7410(a)(1)

(emphasis added). If, however, EPA disapproves a

State’s SIP, then that SIP will not “provide[ ] for

implementation, maintenance, and enforcement of [a

NAAQS] . . . within such [same] State.” Id. (emphasis

added). This state-specific applicability of both an

approval or a disapproval of a SIP is also why, as

explained above, the CAA requires EPA to act on each

35

SIP individually.

§ 7410(k)).

See supra p.8 (citing 42 U.S.C.

The CAA-defined, state-specific focus of a SIP

explains why courts have long held that “a SIP” is “a

purely local action” or an “undisputably regional

action,” ATK Launch Sys., 651 F.3d at 1199, such that

challenges to SIP approvals and disapprovals alike

belong in the appropriate regional Circuit. These

actions are “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, 705 F.3d at 455 (citations

omitted), which is why Section 307(b)(1)’s second

sentence lists EPA’s “action in approving or

promulgating any implementation plan under

section 110” as categorically “locally or regionally

applicable,” while also explicitly stating that “any

denial or disapproval by the Administrator under

subchapter I” would likewise be “locally or regionally

applicable,” 42 U.S.C. § 7607(b)(1).

Treating EPA’s approval of a SIP under

Section 110 as “locally or regionally applicable” under

Section 307(b)(1), but a disapproval of a SIP as

“nationally applicable,” would make no sense. See id.

The statutory source of EPA’s authority to take such

actions is the same: Section 110(k)(3) of the CAA. Id.

§ 7410(k)(3).

Further, EPA’s “approval and

promulgation of [SIPs] under the Clean Air Act

usually involve issues peculiar to the affected States,”

41 Fed. Reg. at 56,768, and SIP disapprovals too are

36

“usually highly fact-bound and particular to the

individual State,” Texas, 2023 WL 7204840, at *5

(citation omitted); see Kentucky, 2024 WL 5001991,

at *9. To take just a few examples, EPA’s disapproval

of a State’s SIP can cause plant closures in that State,

can reduce electric-generation capacity in that State,

and can make residents in that State “face power

shortages and grid failures.” Texas v. EPA, 829 F.3d

405, 416–17 (5th Cir. 2016). And while a SIP

disapproval may open the door to EPA promulgating

a FIP for the affected State, see 42 U.S.C.

§ 7410(c)(1)(B), that could not possibly make a SIP

disapproval “nationally applicable.”

After all,

Section 307(b)(1)’s second sentence lists EPA

promulgating a FIP as an action that is “locally or

regionally applicable.”

Compare id. § 7607(b)(1)

(“approving or promulgating any implementation

plan under section [110]”), with id. § 7410(c)(1) (“The

Administrator

shall

promulgate

a

Federal

implementation plan . . . after the Administrator . . .

disapproves a State implementation plan submission

in whole or in part[.]”). There is no rational reason for

Congress to have concluded in Section 307(b)(1) that

the promulgation of a FIP for a State was “locally or

regionally applicable,” while the disapproval of that

State’s SIP that led to that FIP promulgation was

itself somehow “nationally applicable.”

This is not to say that all EPA actions related in

any way to SIPs are “locally or regionally applicable”

actions. As the statutory history of Section 307(b)(1)

illustrates, some EPA actions impacting SIPs could

37

potentially be “nationally applicable,” such as

“granting [ ] two-year extensions of the date for

attainment of [a NAAQS] in a number of metropolitan

areas” or promulgating “generic regulations

(applicable to all States) that require prevention of

significant deterioration of air quality.” 41 Fed. Reg.

at 56,768–69. Unlike a SIP approval or disapproval

for a particular State, those kind of actions involve the

“establishment or application of uniform principles

for all States, are taken on a single administrative

record, and do not involve factual questions unique to

any particular geographical areas.” Id. at 56,769

& n.2.

Finally, to the extent that it is relevant to the

Section 307(b)(1) default venue analysis, nothing in

EPA’s notices disapproving Utah’s SIP or Oklahoma’s

SIP “distinguishes th[ese] action[s] from most other

[actions on] SIPs . . . which, again, unequivocally fall

in the ‘locally or regionally applicable’ category.” Am.

Rd. & Transp. Builders Ass’n, 705 F.3d at 456.

Utah and Oklahoma developed their own SIPs

independently and to govern emissions only from

their respective State, JA33a, 37a (Utah); JA1a, 26a

(Oklahoma), consistent with the CAA’s requirements

for SIPs, 42 U.S.C. § 7410(a)(1); accord Am. Rd. &

Transp. Builders Ass’n, 705 F.3d at 455–56. Further,

Utah’s SIP and Oklahoma’s SIP concluded that each

State’s emissions were linked only to a limited

number of receptors in a limited number of different,

downwind regional States. Utah’s SIP recognized

38

that its emissions were linked to “nonattainment and

maintenance receptors for the 2015 ozone NAAQS”

only “in the Denver area.” 87 Fed. Reg. at 31,478.

And Oklahoma’s SIP determined that in-state

emissions were potentially linked to three downwind

receptors, one in Denton County, Texas, one in

Tarrant County, Texas, and one in Allegan County,

Michigan. 87 Fed. Reg. at 9,820.

EPA disapproved Utah’s SIP and Oklahoma’s SIP

by focusing on Utah’s and Oklahoma’s (alleged)

noncompliance with the CAA. See 88 Fed. Reg.

at 9,354. Thus, EPA explained that it evaluated

contents of “each individual state’s submission” “on

their own merits” and after “consider[ing] the facts

and information, including information from the

Agency, available to the state at the time of its

submission.” Id.; see also id. at 9,340 (explaining that

EPA judged each SIP “in light of the facts and

circumstances of each particular state’s submission”).

And EPA specifically incorporated by reference in the

final disapprovals of Utah’s SIP and Oklahoma’s SIP

its separately issued, state-specific proposed

disapprovals of those States’ submissions—which

proposed disapprovals were signed by the regional

EPA offices. Id. at 9,354, 9,359–60.

EPA disapproving Utah’s SIP and Oklahoma’s

SIP illustrates the typically local or regional

applicability of EPA’s actions on SIPs more generally.

39

EPA concluded that Utah’s submission failed to

meet its CAA obligations for several local- or regionspecific reasons, not for nationally applicable reasons.

EPA disapproved Utah’s SIP based on an analysis of

Utah’s emissions and how those emissions impact

ozone concentrations nearby, rejecting Utah’s

analysis that interstate transport of ozone “is

fundamentally different in the western U.S. than in

the eastern U.S.,” id. at 9,360, although EPA had

previously agreed that ozone transport in the West

differs from transport in the East, JA83a; see JA86a–

105a. EPA also rejected Utah’s findings “related to

relative contribution, international and nonanthropogenic emissions, and the relationship of

upwind versus downwind-state responsibilities.” 88

Fed. Reg. at 9,360. This included examining Utah’s

submission of emissions contributions from wildfires

that EPA decided lacked relevance in comparison to

what it deemed was Utah’s “own significant

contribution to nonattainment or interference with

maintenance at downwind areas.” 87 Fed. Reg.

at 31,477, 31,482 (incorporated at 88 Fed. Reg.

at 9,360). And EPA claimed that Utah failed to

engage in an adequate analysis of sufficient emissions

controls. 88 Fed. Reg. at 9,360.

Likewise, EPA’s reasons for rejecting Oklahoma’s

SIP were Oklahoma-specific and not nationally

applicable. EPA disapproved Oklahoma’s SIP based,

in part, on Oklahoma’s use of the Texas 2012

modeling to analyze potential downwind attainment

problem areas.

87 Fed. Reg. at 9,820–21

40

(incorporated at 88 Fed. Reg. at 9,359). EPA also

rejected Oklahoma’s analysis of its in-state emission

trends (due in part to other regulatory actions

reducing emissions at certain electric generating

units), id. at 9,823, and Oklahoma’s finding (based on

analysis of emissions trends and other contributions

relevant to each identified locality) that the State’s

emissions did not significantly contribute to Michigan

and Texas receptors’ maintenance goals, id. EPA also

disapproved Oklahoma’s SIP, in part, due to the

conclusion that the State failed to provide the

necessary analysis of its downwind impacts in Illinois

and Galveston, Texas. Id. at 9,822–23; JA255a.4

C. The Tenth Circuit concluded that the EPA’s

disapproving Utah’s SIP and Oklahoma’s SIP—along

with disapproving SIPs from 19 other States—

comprised a single “nationally applicable” action

under Section 307(b)(1)’s first sentence, transferring

the petitions here to the D.C. Circuit. Pet.App.11a.

The Tenth Circuit concluded that two “features”

support its holding. Pet.App.11a. First, according to

Indeed, EPA used revised air modeling that it did not

provide to Oklahoma before EPA proposed to disapprove

Oklahoma’s SIP because the air modeling identified receptors in

Illinois rather than Michigan as problematic. See 88 Fed. Reg.

at 9,360. And in its final disapproval, EPA further revised its

air modeling, which changed the alleged linkages even further.

Id. It is unclear how Oklahoma could provide the “required”

analysis for data it did not have. Regardless, the key here is that

the analysis is locally focused.

4

41

the Tenth Circuit, EPA consolidating into a single

Federal Register notice the SIP disapprovals of

21 States made that notice a “nationally applicable”

action under Section 307(b)(1)’s first sentence.

Pet.App.11a. Second, the Tenth Circuit reasoned that

EPA’s claim to have “applied a uniform statutory

interpretation and common analytical methods” made

the Federal Register notice “nationally applicable”

under Section 307(b)(1)’s first sentence. Pet.App.11a.

No other Circuit has followed this reasoning for the

SIP disapprovals in the Federal Register notice.

The Tenth Circuit’s conclusion is incorrect on

both counts.

EPA’s administrative packaging of 21 SIP

disapprovals into a single Federal Register notice

does not make EPA’s “action” “nationally applicable.”

Pet.App.11a.

The Tenth

Circuit’s

rationale

misunderstands what the relevant “action” is under

Section 307(b)(1). As explained above, “action” in

Section 307(b)(1) refers to the action that Congress

has statutorily authorized EPA to take in the CAA

itself. Supra pp.30–32. Here, the “action” is EPA’s

individually disapproving Utah’s SIP or Oklahoma’s

SIP, respectively, under Section 110(k) of the CAA.

Supra pp.32–33. And reinforcing the individualized

nature of these actions, Section 110(k) directs EPA to

act on each State’s SIP separately, 42 U.S.C.

§ 7410(k)(2)–(3), while Section 307(b)(1)’s second

sentence provides that “any . . . disapproval . . . under

subchapter I [of the CAA]” qualifies as an “action” for

42

Section 307(b)(1)’s venue analysis, id. § 7607(b)(1)

(emphasis added). How EPA chooses to publish those

actions in the Federal Register—whether separately

or packaged with other disapprovals or other EPA

actions—has no bearing on the Section 307(b)(1)

inquiry. See Fed. R. App. P. 15(a)(2)(C) (providing

that parties may challenge only “part” of an agency’s

“order”). Publishing is not the relevant “action”;

Section 307(b)(1) designates that the individual

disapprovals are the “action.”

Moreover, EPA’s own course of conduct illustrates

that it always understood relevant “action” here is

each individual SIP disapproval.

When EPA

proposed to disapprove Utah’s SIP, it did so via an

individually issued, state-specific proposal published

in the Federal Register; for Oklahoma, EPA issued a

combined notice that also included Arkansas,

Louisiana, and Texas. See 87 Fed. Reg. 31,470 (Utah);

87 Fed. Reg. 9,798 (Oklahoma). Each notice detailed

EPA’s individual bases for each proposed disapproval.

See generally 87 Fed. Reg. 31,470; 87 Fed. Reg. 9,798.

When EPA then issued its final disapprovals for

Utah’s SIP and Oklahoma’s SIP—packaged with 19

other SIP disapprovals in the single Federal Register

notice—EPA continued to address individually Utah’s

SIP and Oklahoma’s SIP in separate sections of the

published notice. 88 Fed. Reg. at 9,359–60. Thus,

EPA explained in the final rule that it “evaluat[ed]

each state’s SIP submission” “on their own merits,” id.

at 9,354, and expressly incorporated the

individualized proposed disapprovals into the final

43

rule as the “full basis for the EPA’s disapprovals,” id.

at 9,354, 9,359–60. And, to further prove that EPA’s

packaging of actions in the Federal Register was a

mere administrative choice, EPA took different kinds

of actions with respect to different States’ SIP

submissions: it disapproved some submissions, like

Utah’s SIP and Oklahoma’s SIP; partially approved

and partially disapproved Minnesota’s SIP and

Wisconsin’s SIP; and deferred action on Tennessee’s

SIP and Wyoming’s SIP. Id. at 9,336, 9,354, 9,359–

60, 9,367. The single Federal Register notice could

not have been a single “action” when EPA reached

different conclusions for different States.

The Tenth Circuit’s packaging rationale subverts

Congress’ design. It transforms Section 307(b)(1)

from a neutral provision that funnels challenges to

the Circuits best equipped to adjudicate them into an

arbitrary device that permits EPA to choose the forum

in which it will defend its actions. EPA does not

dispute “that it could have chosen to issue standalone

final SIP disapprovals” and thereby set the Tenth

Circuit as the default forum to challenge the Utah and

Oklahoma disapprovals under Section 307(b)(1).

Pet.App.12a.

Thus, under the Tenth Circuit’s

packaging rationale, whether the challenges to EPA’s

actions disapproving Utah’s SIP or Oklahoma’s SIP

belong in the Tenth Circuit or the D.C. Circuit

depends only on the structure of EPA’s Federal

Register notice. See Pet.App.12a. If Congress had

intended EPA to determine the proper venue for

litigating its actions, Section 307(b) would say so.

44

Yet, the Tenth Circuit’s decision enables EPA to

determine venue by how it elects to publish and

format its notice in the Federal Register—a power

found nowhere in Section 307(b)(1).

The Tenth Circuit’s consistent-method rationale

fares no better. EPA disapproving Utah’s SIP and

Oklahoma’s SIP was not “nationally applicable” due

to EPA’s claim to have used a “consistent statutory

interpretation and uniform analytical methods” when

denying these two SIPs, along with the SIPs of 19

other States. Pet.App.14a; see also Pet.App.11a. EPA

did not defend this reasoning in its brief in opposition,

see Br. For Fed. Resp’ts at 16–17, Oklahoma v. EPA,

Nos.23-1067, -1068 (U.S. May 21, 2024), and rightly

so.

Venue under Section 307(b)(1) does not turn on

whether EPA “applied a uniform statutory

interpretation and common analytical methods” when

taking an action. Contra Pet.App.11a. Instead, venue

turns on the geographic scope of the action.

Enumerated actions must go to either D.C. or the

regional Circuits, and the catchall provisions of

Section 307(b)(1)’s first and second sentences ask

whether the “action” itself is “nationally applicable” or

“locally or regionally applicable.”

42 U.S.C.

§ 7607(b)(1) (emphasis added); supra pp.8–10. So, for

example, while EPA may, in approving a particular

SIP, “appl[y] a broad regulation to a specific context”

or “set a precedent for future SIP proceedings,” that

does not “distinguish[ ]” that SIP “from most other

45

approvals of SIPs or SIP revisions,” which are

“unequivocally . . . ‘locally or regionally’ applicable.”

Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 456.

In other words, an action to disapprove one State’s

SIP has “applica[tion]” only in that “local[ity].” 42

U.S.C. § 7607(b)(1). A disapproval of Oklahoma’s SIP

does not disapprove the SIP of any other State. It is

therefore

locally—not

nationally—applicable,

regardless of whether the rationale for the

disapproval is rooted in a national or uniform policy.

The Tenth Circuit’s reliance on EPA’s supposed

“consistent statutory interpretation and uniform

analytical methods,” Pet.App.14a, renders the

catchall clause in Section 307(b)(1)’s second sentence

functionally meaningless, including that clause’s

parenthetical references to SIP disapprovals. 42

U.S.C. § 7607(b)(1); see Corley v. United States, 556

U.S. 303, 314 (2009) (citation omitted) (canon against

surplusage). Both the APA and the CAA require EPA

to apply a uniform statutory interpretation and

analytical method whenever it takes actions involving

similarly situated States, as “[u]nexplained

inconsistency” makes agency action unlawfully

arbitrary. Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967, 981 (2005) (citing

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 46–57 (1983)). If

EPA’s use of a consistent interpretation or method

alone rendered its actions “nationally applicable”

under Section 307(b)(1)’s first sentence, EPA could

never take “locally or regionally applicable” action

46

under the second sentence’s catch-all provision.

Contra Corley, 556 U.S. at 314.

II. Neither EPA’s Disapproval Of Utah’s SIP

Nor Its Disapproval of Oklahoma’s SIP Was

An “Action . . . Based On A Determination Of

Nationwide Scope Or Effect”

The Tenth Circuit remains the appropriate venue

for Petitioners’ challenges to EPA disapproving

Utah’s SIP or Oklahoma’s SIP notwithstanding EPA’s

alleged “finding” that its “action is based on a

determination of ‘nationwide scope or effect’” under

Section 307(b)(1)’s third sentence. 88 Fed. Reg.

at 9,380. Section 307(b)(1)’s third sentence applies

only where EPA takes the action “based on a

determination” of the “nationwide scope or effect” of

the action. 42 U.S.C. § 7607(b)(1). Here, EPA’s

“finding” has no legal effect because EPA improperly

defined the “action” at issue as “disapproving SIP

submittals for the 2015 ozone NAAQS for 21 states,”

88 Fed. Reg. at 9,380, when the relevant actions are

those that EPA took with regard to Utah’s and

Oklahoma’s SIP submissions. As to those properly

defined actions—EPA’s disapproving Utah’s SIP and

Oklahoma’s SIP—EPA could not have lawfully taken

those actions “based a determination” of either a

“nationwide scope” or a “nationwide . . . effect.” 42

U.S.C. § 7607(b)(1).

A. Section 307(b)(1)’s third sentence operates as a

narrow exception to the default rule that the

47

appropriate regional Circuit is the venue for

challenges to EPA’s approval or disapproval of a SIP

or some other “locally or regionally applicable” action.

Id.; supra Part I. Section 307(b)(1)’s third sentence

provides that, “[n]otwithstanding” the default rule, “a

petition for review” challenging a locally or regionally

applicable action “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.” 42 U.S.C.

§ 7607(b)(1).

Based on the text, context, and structure of

Section 307(b)(1)’s third sentence—and reading this

exception “narrowly” so as “to preserve the primary

operation of” Section 307(b)(1)’s default rule, Garland

v. Aleman Gonzalez, 596 U.S. 543, 555 n.6 (2022)

(citation omitted); Cuomo v. Clearing House Ass’n,

LLC, 557 U.S. 519, 530 (2009)—this third sentence

applies where EPA takes the challenged action “based

on a determination” of the “nationwide scope or effect”

of the action. 42 U.S.C. § 7607(b)(1).

In the context of administrative actions, a

determination in an agency order refers to an agency’s

“final disposition,” see 5 U.S.C. § 551(6), thus

“determination” in Section 307(b)(1)’s third sentence

refers to EPA’s “‘authoritative decision’ of the ‘matter

at issue,’” Kentucky, 2024 WL 5001991, at *11

(citations omitted). If EPA decides to issue a locally

or regionally applicable “action” “based on” that

48

action’s “nationwide scope or effect” (and then

publishes that finding), the D.C. Circuit is the proper

venue for challenges to that action. 42 U.S.C.

§ 7607(b)(1). Or, as then-Judge Kavanaugh put it, the

third sentence applies if “otherwise locally or

regionally applicable regulations have a nationwide

scope or effect.” Am. Rd. & Transp. Builders Ass’n,

705 F.3d at 455. That is, if “the ultimate decision

underlying the EPA’s ‘final action’ has a ‘nationwide

scope or effect,’” the third sentence applies to

challenges to that action.

Kentucky, 2024 WL

5001991, at *11 (citations omitted).

This reading follows from the terms in Section

307(b)(1)’s third sentence. The phrase “nationwide

scope or effect” refers to actions “that apply to the

entire country” either “as a legal matter”—i.e.,

“nationwide scope”—or “as a practical one”—i.e.,

“nationwide . . . effect.” Id. at *12. “Nationwide”

means “extending throughout an entire nation.”

Nationwide, Merriam-Webster Dictionary 466 (1974).

“Scope,” in turn, is the “extent covered” or “range” of

action, inquiry, etc.

Scope, Merriam-Webster

Dictionary 621 (1974). And “effect” means a “result”

or “consequence”; “the quality or state of being

operative.” Effect, The Merriam-Webster Dictionary

232 (1974).

Under this statutory text, the analysis proceeds

as follows. EPA must first identify the statutory

“action” to invoke the exception.

42 U.S.C.

§ 7607(b)(1). Then, EPA must determine whether it

49

is taking the action “based on a determination” of the

“nationwide scope or effect” of that action. That is,

correctly identifying the relevant “action” is a

prerequisite to EPA properly finding that the “action”

is “based on a determination of nationwide scope or

effect.” Id. Next, EPA must “find[ ] and publish[ ]

that such action is based on such a determination.”

Id. Finally, the courts must evaluate whether EPA

took the “action” “based on a determination of [the]

nationwide scope or effect” of the action and whether

EPA found and published that “determination.” Id.

B. Here, EPA did not take its actions denying

Utah’s SIP and Oklahoma’s SIP, respectively, based

on a valid “determination” that either action has a

“nationwide scope or effect.” Id. To begin, EPA’s

purported finding that the action at issue was based

on a “determination of nationwide scope or effect”

stemmed from its identification of the wrong “action.”

But even if EPA had identified the correct “action”—

here, its actions disapproving Utah’s SIP and

Oklahoma’s SIP, respectively—EPA could not have

lawfully concluded that it issued those actions based

upon a determination of nationwide scope or effect.

1. In the “Judicial Review” section of the Federal

Register notice, EPA (mis)identified the action as a

single “rulemaking” rather than acknowledging 21

separate SIP actions that the notice lumps together.

88 Fed. Reg. at 9,380. EPA asserted that this single

“rulemaking” is a nationally applicable “final action”

“disapproving SIP submittals for the 2015 ozone

50

NAAQS for 21 states located across a wide geographic

area.” Id. EPA relied on the same “final action” in

the next paragraph when it published its finding that

“[i]n the alternative,” EPA’s action “is based on a

determination of ‘nationwide scope or effect’ within

the meaning of CAA section 307(b)(1).” Id. EPA’s

focus on its “final action” in the singular confirms that

EPA’s determination under the third sentence did not

rest on the separate disapprovals for Utah’s and

Oklahoma’s submissions, but rather upon the

agency’s mistaken belief that the Federal Register

notice combining 21 States’ SIP disapprovals together

was the relevant “action” at issue.

EPA’s “finding” that the Federal Register notice

has nationwide scope or effect because it combined

notices applied to States spread “throughout the

continental U.S.,” id., holds no relevance to the venue

inquiry because the notice is not the relevant action

under the CAA. Section 307(b)(1) requires that the

relevant action be one “under this chapter,” and

identifies

EPA

approving,

promulgating,

disapproving, or denying any implementation plan

under Section 110 as a relevant action. 42 U.S.C.

§ 7607(b)(1). The Act delineates what qualifies as an

action by EPA on State plan submissions, id.

§ 7410(k), and as noted above, the CAA requires that

EPA act on each plan submission either in whole or in

part, id. § 7410(k)(3). Supra pp.8, 32–33. EPA’s

“find[ing]” does not involve any statutorily authorized

action, and thus is not an “action” “under this

51

chapter” relevant to the venue inquiry. 42 U.S.C.

§ 7607(b)(1).

In all, because EPA’s claimed finding under

Section 307(b)(1)’s third sentence did not focus on the

relevant “action,” that finding is invalid for that

reason alone.

2. Had EPA focused its analysis on the relevant

actions—here, its actions disapproving Utah’s SIP

and Oklahoma’s SIP, respectively—it could not have

lawfully concluded that it took those two actions based

upon a determination of nationwide scope or effect, as

Section 307(b)(1)’s third sentence would require.

EPA could not have issued its separate

disapprovals for Utah’s SIP and Oklahoma’s SIP

“based on” a “determination” of the “nationwide scope”

of those two distinct actions.

Utah’s SIP and

Oklahoma’s SIP each only governs NOx (and other

ozone causing) emissions from their respective State.

JA37a (Utah’s SIP governs “emissions from the State

of Utah”); see JA26a (Oklahoma’s SIP governs

emissions from “the State of Oklahoma”). Each State

developed fact-intensive determinations forecasting

their own emissions and whether those emissions

linked to specific areas of nonattainment. Utah

considered only whether “emissions from Utah”

potentially caused “air quality problems” in any

applicable downwind States—here, solely Colorado—

that necessitated Utah reducing any in-state

emissions to avoid “contributing to nonattainment or

52

interfering with maintenance in” downwind Colorado.

JA39a–42a.

Then, applying its “weight-of-theevidence” approach, Utah concluded that its

contributions to Colorado were not significant, after

considering state- or region-specific factors like

Colorado’s own in-state contributions (a unique factor

for western States, like Utah and Colorado);

international emissions, emissions from wildfires,

and biogenic emissions in Colorado; and Utah’s own

downward trend in NOx emissions. Supra pp.13–15.

Oklahoma’s analysis of whether in-state emissions

would “contribut[e] significantly to nonattainment

in . . . any other state” was similarly state-specific,

JA26a, examining effects in Michigan5 and Texas,

JA21a–23a, 25a. Oklahoma’s “weight of the evidence”

analysis reviewed local trends for the identified

problem sites (including by relying on Texas’s

regional modeling for Denton and Tarrant counties)

to determine that each site would reach attainment.

JA21a–25a.

Oklahoma then reviewed its own

emissions trends and found that existing emission

reduction measures would continue to decrease

emissions to half their 2011 levels, which further

supported Oklahoma’s finding that its emissions

would not significantly affect another area’s

nonattainment. JA25a–26a.

5 EPA ultimately agreed that Oklahoma’s emissions would

not impact Allegan County, Michigan. 87 Fed. Reg. at 9,820.

53

EPA’s actions disapproving the States’ individual

submissions involved findings specific to each State

and thus do not have a nationwide scope. In

disapproving Utah’s SIP, EPA rejected each of Utah’s

state- or region-specific findings and analyses,

including Utah’s findings that its current reductions

in emissions to meet other regulatory requirements

meant that Utah’s emissions would not significantly

contribute to any nonattainment outside of Utah.

Supra p.15. EPA’s disapproval also rejected Utah’s

explanation that ozone transport operates differently

in the western States than the eastern States due to

topographical and other geographic realities. Supra

p.15. In disapproving Oklahoma’s SIP, EPA faulted

Oklahoma for relying on Texas’s own regional air

modeling for counties in Texas. 88 Fed. Reg. at 9,359.

And EPA rejected Oklahoma’s weight of the evidence

analysis including Oklahoma’s review of domestic

emissions trends and projected contribution (or noncontribution) of site-specific programs. Id.

Similarly, EPA did not issue its disapprovals of

Utah’s SIP and Oklahoma’s SIP based upon a

determination that those disapprovals had

“nationwide . . . effect[s].” 42 U.S.C. § 7607(b)(1)

(emphasis added). Even under EPA’s erroneous

analysis of its two disapprovals here, emissions from

Utah and Oklahoma only sufficiently linked those

States to a handful of receptors in one part of

Colorado for Utah and two receptors in parts of Texas

for Oklahoma. EPA identified only five potential

receptors where Utah’s contributions exceeded more

54

than 1 percent of the 2015 ozone NAAQS, and all of

these receptors were located in Colorado’s Denver

Metro/North Front Range Nonattainment Area.

Supra pp.13–14, 17 (also explaining that Utah

concluded that it was linked only to four receptors,

after further review). EPA only identified two

potential receptors where Oklahoma’s linked

contributions exceeded more than 1 percent of the

2015 ozone NAAQS, one in Denton County, Texas and

one in Galveston County, Texas.6 Supra pp.17–18.

EPA disapproved the two SIPs because EPA

(erroneously) concluded Utah’s SIP failed to address

impacts to receptors in Colorado, and Oklahoma’s SIP

failed to address impacts to receptors in Texas, which

is plainly not a nationwide effect.

3. None of EPA’s justifications in its Federal

Register notice would support placing venue for these

challenges in the D.C. Circuit under Section

307(b)(1)’s third sentence.

EPA asserted in that notice that “applying a

nationally uniform approach to the identification of

nonattainment and maintenance receptors” showed

its final action had “nationwide scope or effect.” 88

Fed. Reg. at 9,380–81. But that justification points to

Each iteration of EPA’s modeling (two of which were

released after Oklahoma submitted its plan) identified different

receptors linked to Oklahoma’s emissions. In every model,

EPA’s analysis focused on linkages to specific sites in, at most,

two downwind states.

6

55

the wrong final action, i.e., the Federal Register

notice, and not individually disapproving Utah’s SIP

or Oklahoma’s SIP. The reasoning also fails to show

that EPA’s “otherwise locally or regionally applicable”

actions “have a nationwide scope or effect,” Am. Rd.

& Transp. Builders Ass’n, 705 F.3d at 455. As Judge

Niemeyer explained, “if application of a national

standard to disapprove a plan were the controlling

factor, 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.” West Virginia, 90 F.4th at 329–30; see also

supra pp.43–46. And if EPA could determine that a

locally or regionally applicable action had a

nationwide scope or effect simply because the action

“applie[d] a broad regulation to a specific context” or

“set a precedent for future [agency] proceedings,” Am.

Rd. & Transp. Builders Ass’n, 705 F.3d at 455, the

exception would render the default venue rule

surplusage, at EPA’s option, see Diaz v. United States,

602 U.S. 526, 536–37 (2024); accord Corley, 556 U.S.

at 314 (citation omitted) (canon against surplusage).

EPA alleged that the Federal Register notice had

nationwide scope or effect because the agency applied

a “common core of nationwide policy judgments and

technical analysis” to assess obligations under the

2015 ozone NAAQS. 88 Fed. Reg. at 9,380. But EPA’s

“analy[sis]” is merely a “preliminary choice[ ]” and not

EPA’s final disposition, so it cannot serve as the

“determination.”

Kentucky, 2024 WL 5001991,

at *11–12. Even if considered, EPA conceded that it

56

evaluated each State’s “use of alternative approaches

or alternative sets of data” to “avoid[ ] inconsistent or

inequitable results among” upwind and downwind

States. 88 Fed. Reg. at 9,381. This analysis cannot

be done nationwide—EPA must look at each upwind

State and the specific, affected downwind States.

Whether the result is “inequitable” is an individual

determination for that State, as the CAA envisions.

See 42 U.S.C. § 7410(k). And to the extent that EPA

suggests applying a common method of analysis is

sufficient for venue purposes, that fails for the same

reasons that a SIP disapproval is not nationally

applicable. Supra pp.33–37.

Finally, EPA claimed in its notice that the CAA

afforded it “the complete discretion” to determine

whether its action has nationwide scope or effect and

direct any challenges to that action to the D.C.

Circuit.

88 Fed. Reg. at 9,380.

Although

Section 307(b)(1) provides EPA with discretion

whether to publish a determination of nationwide

scope or effect, see Am. Rd. & Transp. Builders Ass’n,

705 F.3d at 456, publishing the determination

satisfies only the second of the necessary conditions

for the D.C. Circuit to adjudicate a “locally or

regionally applicable” action, 42 U.S.C. § 7607(b)(1).

Section 307(b)(1), entitled “Judicial Review,” also

requires that “such action is based on a determination

of nationwide scope or effect.” Id. In upholding the

“basic presumption of judicial review” of agency

action, Dep’t of Homeland Sec. v. Regents of the Univ.

of Cal., 591 U.S. 1, 16–17 (2020) (citation omitted),

57

courts confine any exception to that presumption to

“those rare ‘administrative decision[s] traditionally

left to agency discretion,’” such as an agency decision

not to act, id. at 17 (citation omitted). This rare

exception does not apply to the question of whether

EPA took an action “based on” the “nationwide scope

or effect” of the action because Congress directed

courts to examine the “geographical aspects of the

factual and analytical circumstances of the agency’s

determination.” West Virginia, 90 F.4th at 328; see

Texas, 2023 WL 7204840, at *5 (applying “nationwide

scope or effect” standard (citation omitted));

Kentucky, 2024 WL 5001991, at *7 (same). Congress

did not set up a carefully balanced venue scheme for

“nationally applicable” and “locally or regionally

applicable” actions only to permit EPA to select the

D.C. Circuit for any action by merely publishing a

finding insulated from judicial review.

CONCLUSION

This Court should reverse the judgment of the

Tenth Circuit and remand with instructions to

proceed to the merits of these petitions for review.

58

Respectfully submitted,

MEGAN BERGE

SARAH DOUGLAS

BAKER BOTTS L.L.P.

700 K Street N.W.

Washington, D.C. 20001

AARON M. STREETT

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

Attorneys for the

Oklahoma Industry

Petitioners

STEVEN J. CHRISTIANSEN

DAVID C. REYMANN

PARR BROWN GEE

& LOVELESS

101 South 200 East

Suite 700

Salt Lake City, UT 84111

Attorneys for Deseret

Generation &

Transmission CoOperative

MISHA TSEYTLIN

Counsel of Record

JEFF P. JOHNSON

KEVIN M. LEROY

KAITLIN L. O’DONNELL

EMILY A. O’BRIEN

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

MARIE BRADSHAW DURRANT

Vice President and

General Counsel

CHRISTIAN C. STEPHENS

Senior Attorney

PACIFICORP

1407 North Temple

Suite 320

Salt Lake City, UT 84116

Attorneys for PacifiCorp

59

H. MICHAEL KELLER

ARTEMIS D. VAMIANAKIS

FABIAN VANCOTT

95 South State Street

Suite 2300

Salt Lake City, UT 84111

Attorneys for Utah

Associated Municipal

Power Systems

CARROLL WADE

MCGUFFEY III

MELISSA HORNE

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

Attorneys for PacifiCorp

EMILY L. WEGENER

General Counsel

UTAH ASSOCIATED

MUNICIPAL POWER

SYSTEMS

155 North 400 West

Suite 480

Salt Lake City, UT 84103

Attorneys for Utah

Associated Municipal

Power Systems

ALAN I. ROBBINS

DEBRA D. ROBY

WASHINGTON ENERGY

LAW LLP

900 17th St. NW

Suite 500-A

Washington, D.C. 20006

Attorneys for Utah

Municipal Power Agency

December 2024