Petitioners Brief — Oklahoma, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefDec 13, 2024
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No. 23-1067
In the
Supreme Court of the United States
STATE OF OKLAHOMA, et al.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of A ppeals for the Tenth Circuit
BRIEF FOR PETITIONERS
Sean D. Reyes
Attorney General
Stanford E. Purser
Solicitor General
Office of the Utah
Attorney General
Utah State Capitol Complex
350 N. State Street,
Suite 230
Salt Lake City, UT 84114
Gentner Drummond
Attorney General
Garry M. Gaskins, II
Solicitor General
Jennifer L. Lewis
Deputy Attorney General
Oklahoma Attorney
General’s Office
313 N.E. 21st Street
Oklahoma City, OK 73105
William L. Wehrum
Wehrum Environmental
Law LLC
1629 K Street, N.W.,
Suite 300
Washington, D.C. 20006
Mithun Mansinghani
Counsel of Record
Lehotsky Keller Cohn LLP
629 W. Main Street
Oklahoma City, OK 73102
(512) 693-8350
mithun@lkcfirm.com
Counsel for Petitioner
State of Utah
333862
Counsel for Petitioners
State of Oklahoma and
Oklahoma Department of
Environmental Quality
Emily C. Schilling
Holland & Hart LLP
222 S. Main Street,
Suite 2200
Salt Lake City, UT 84101
Kristina R. Van Bockern
A aron B. Tucker
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, CO 80202
Counsel for Petitioner
State of Utah
Michael B. Schon
Drew F. Waldbeser
Lehotsky Keller Cohn LLP
200 Massachusetts Avenue
N.W.
Washington, DC 20001
Counsel for Petitioners
State of Oklahoma and
Oklahoma Department of
Environmental Quality
QUESTION PRESENTED
The Clean Air Act requires each State to adopt an
implementation plan for national air quality
standards, which EPA reviews for compliance with the
Act. See 42 U.S.C. § 7410. In 2023, EPA published
disapprovals of 21 States’ plans implementing
national ozone standards. It did so in a single Federal
Register notice. The Act specifies that “[a] petition for
review of the [EPA’s] action in approving or
promulgating any implementation plan … or any
other final action of the [EPA] under this Act … which
is locally or regionally applicable may be filed only in”
the appropriate regional circuit, while challenges to
“nationally applicable regulations … may be filed only
in” the D.C. Circuit. 42 U.S.C. § 7607(b)(1). Parties
from a dozen states sought judicial review of their
respective state plan disapprovals in their regional
circuits.
The Fourth, Fifth, Sixth, and Eighth Circuits held
that the plan disapprovals of States within those
circuits are appropriately challenged in their
respective regional courts of appeals. In the decision
below, the Tenth Circuit held that challenges to the
disapprovals of Oklahoma’s and Utah’s plans can be
brought only in the D.C. Circuit, explicitly disagreeing
with the decisions of its sister circuits.
The question presented is:
Whether a final action by EPA taken pursuant to
its Clean Air Act authority with respect to a single
State or region may be challenged only in the D.C.
Circuit because EPA published the action in the same
Federal Register notice as actions affecting other
states or regions and claimed to use a consistent
analysis for all States.
ii
PARTIES TO THE PROCEEDING
Petitioners, the State of Oklahoma, by and
through its Attorney General, and the Oklahoma
Department of Environmental Quality, challenged
EPA’s
disapproval
of
Oklahoma’s
state
implementation plan in the Tenth Circuit. The State
of Utah, by and through its Governor, Spencer J. Cox,
and its Attorney General, Sean D. Reyes, separately
challenged EPA’s disapproval of Utah’s state
implementation plan, also in the Tenth Circuit.
The Tenth Circuit procedurally consolidated
Oklahoma’s challenge with petitions challenging the
same agency action filed by Petitioners Oklahoma Gas
& Electric Company, Tulsa Cement LLC, d/b/a/
Central Plains Cement Company LLC, Republic
Paperboard Company, and Western Farmers Electric
Cooperative.
The Tenth Circuit also procedurally consolidated
Utah’s challenge with petitions challenging the same
agency action filed by Petitioners PacifiCorp and Utah
Associated Municipal Power Systems.
The Environmental Protection Agency and
Administrator Michael S. Regan were respondents in
each challenge.
iii
TABLE OF CONTENTS
Parties to the Proceeding ........................................... ii
Table of Authorities .................................................... v
Introduction ................................................................ 1
Opinions Below ........................................................... 3
Jurisdiction ................................................................. 3
Statutory Provisions Involved.................................... 4
Statement ................................................................... 4
A. Statutory Background .................................. 4
B. Oklahoma’s
and
Utah’s
State
Implementation Plans .................................. 7
C. Procedural History ..................................... 12
Summary of Argument ............................................. 15
Argument .................................................................. 21
I.
The proper venue for a challenge to the
disapproval of a state implementation plan is
the regional circuit. ........................................... 21
A. Under the Act’s plain text, EPA action on
state plans is reviewable in the regional
circuits. ....................................................... 22
B. The Tenth Circuit misinterpreted
Section 7607(b)(1). ...................................... 29
II. EPA’s disapprovals of Oklahoma’s and Utah’s
plans were not based on a determination of
nationwide scope or effect. ................................ 39
iv
A. Section 7607(b)(1)’s exception applies
only when the core or ultimate
justification for EPA’s action is
nationwide in scope or effect. ..................... 40
B. EPA’s actions disapproving Oklahoma’s
and Utah’s plans were not based on
determinations of nationwide scope or
effect. ........................................................... 44
1. EPA’s determinations were based on
state-specific facts and circumstances. ...... 45
2. EPA’s actions were not based on its
preference for a uniform policy-based
framework. .................................................. 51
3. EPA’s desire to consolidate judicial
review does not constitute a determination
of nationwide scope or effect. ...................... 54
Conclusion................................................................. 55
v
TABLE OF AUTHORITIES
Cases
Alabama Env’t Council v. EPA,
711 F.3d 1277 (11th Cir. 2013) .............................. 28
Alaska Dep’t of Env’t Conservation,
540 U.S. 461 (2004) ................................................ 24
Am. Rd. & Transp. Builders Ass’n v. EPA,
705 F.3d 453 (D.C. Cir. 2013) ..... 1, 16, 24, 33, 35, 43
Ass’n of Irritated Residents v. EPA,
686 F.3d 668 (9th Cir. 2012) .................................. 28
ATK Launch Sys., Inc. v. EPA,
651 F.3d 1194 (10th Cir. 2011) .............................. 24
Barnhart v. Thomas,
540 U.S. 20 (2003) .................................................. 38
BCCA Appeal Grp. v. EPA,
355 F.3d 817 (5th Cir. 2003) .................................. 28
Bissonnette v. LePage Bakeries Park St., LLC,
601 U.S. 246 (2024) ................................................ 25
Brown Express, Inc. v. United States,
607 F.2d 695 (5th Cir. 1979) .................................. 30
Calumet Shreveport Refin., LLC v EPA,
86 F.4th 1121 (5th Cir. 2023) ................................ 35
Chevron U.S.A. Inc. v. EPA,
45 F.4th 380 (D.C. Cir. 2022) .......................... 23, 32
Comm. for a Better Arvin v. EPA,
786 F.3d 1169 (9th Cir. 2015) ................................ 28
Cuomo v. Clearing House Ass’n, LLC,
557 U.S. 519 (2009) ................................................ 41
vi
E.I. du Pont de Nemours & Co. v. Train,
430 U.S. 112 (1977) ................................................ 55
Encino Motorcars, LLC v. Navarro,
579 U.S. 211 (2016) .......................................... 32-33
EPA v. EME Homer City Generation, L.P.,
572 U.S. 489 (2014) .................................................. 4
Garland v. Gonzalez,
596 U.S. 543 (2022) ................................................ 41
Harrison v. PPG Indus., Inc.,
446 U.S. 578 (1980) ................................ 5, 22, 27, 38
Hertz Corp. v. Friend,
559 U.S. 77 (2010) ............................................ 30-31
Humane Soc’y of the U.S. v.
U.S. Dep’t of Agric.,
41 F.4th 564 (D.C. Cir. 2022) ................................ 30
Husky Int’l Elecs., Inc. v. Ritz,
578 U.S. 355 (2016) ................................................ 27
Kentucky v. EPA,
__ F.4th __, Nos. 23-3216/3225,
2024 WL 5001991 (6th Cir. Dec. 6, 2024) ...... 14, 22,
.......................... 23, 25, 31, 33, 41, 43, 45, 51, 52, 55
Kentucky v. EPA,
2023 WL 11871967 (6th Cir. July 25, 2023) ... 14, 24
Lewis-Mota v. Sec’y of Lab.,
469 F.2d 478 (2d Cir. 1972) ................................... 30
Lockhart v. United States,
577 U.S. 347 (2016) ................................................ 38
Milner v. Dep’t of Navy,
562 U.S. 562 (2011) ................................................ 26
vii
Nat. Res. Def. Council, Inc. v. Thomas,
838 F.2d 1224 (D.C. Cir. 1988) ........................ 35, 36
Nat’l Envtl. Dev. Ass’n’s Clean Air Project v.
EPA,
891 F.3d 1041 (D.C. Cir. 2018) .............................. 55
Nat’l Parks Conservation Ass’n v. McCarthy,
816 F.3d 989 (8th Cir. 2016) .................................. 24
OBB Personenverkehr AG v. Sachs,
577 U.S. 27 (2015) .................................................. 42
Ohio v. EPA,
603 U.S. 279 (2024) .................................................. 7
Reeder v. FCC,
865 F.2d 1298 (D.C. Cir. 1989) .............................. 30
RMS of Ga., LLC v. EPA,
64 F.4th 1368 (11th Cir. 2023) .............................. 36
S. Ill. Power Coop. v. EPA,
863 F.3d 666 (7th Cir. 2017) .................................. 29
Sierra Club v. EPA,
47 F.4th 738 (D.C. Cir. 2022) ................................ 24
Sierra Club v. EPA,
926 F.3d 844 (D.C. Cir. 2019) ................................ 23
Sw. Airlines Co. v. Saxon,
596 U.S. 450 (2022) ................................................ 27
Texas Mun. Power Agency v. EPA,
89 F.3d 858 (D.C. Cir. 1996) .................................. 25
Texas v. EPA,
829 F.3d 405 (5th Cir. 2016) ................. 4, 41, 42, 45,
.............................................................. 46, 51, 52, 55
viii
Texas v. EPA, No. 23-60069,
2023 WL 7204840 (5th Cir. May 1, 2023) ....... 12, 13
Train v. Nat. Res. Def. Council, Inc.,
421 U.S. 60 (1975) .............................................. 5, 45
Travis v. United States,
364 U.S. 631 (1961) ................................................ 30
Union Elec. Co. v. EPA,
427 U.S. 246 (1976) ...................................... 4, 24, 45
W. Virginia Chamber of Com. v. Browner,
166 F.3d 336,
1998 WL 827315 (4th Cir. 1998) ........................... 26
West Virginia v. EPA,
90 F.4th 323 (4th Cir. 2024) ..................... 13, 23, 32,
.................................................................... 41, 43, 51
Statutes and Other Authorities
28 U.S.C. § 1254(1) ...................................................... 3
28 U.S.C. § 2101(e) ...................................................... 3
42 U.S.C. § 7407(a) ................................................ 4, 24
42 U.S.C. § 7409(a) ...................................................... 4
42 U.S.C. § 7409(b) ...................................................... 4
42 U.S.C. § 7410 ... 2, 5, 6, 14, 16, 21, 23, 25-28, 31, 39
42 U.S.C. § 7410(a)(1) ........................................ 4, 7, 23
42 U.S.C. § 7410(a)(2) ................................................ 23
42 U.S.C. § 7410(a)(2)(A) ............................................. 4
42 U.S.C. § 7410(a)(2)(D)(i)(I) ............................... 7, 53
42 U.S.C. § 7410(c) .................................................... 23
ix
42 U.S.C. § 7410(c)(1) .................................................. 5
42 U.S.C. § 7410(k) .................................................... 23
42 U.S.C. § 7410(k)(1)................................................ 23
42 U.S.C. § 7410(k)(2)................................................ 23
42 U.S.C. § 7410(k)(3)................................................ 23
42 U.S.C. § 7410(k)(1)(B)........................................... 23
42 U.S.C. § 7410(k)(2)................................................ 23
42 U.S.C. § 7410(k)(3)............................................ 5, 23
42 U.S.C. § 7411 .................................................... 6, 25
42 U.S.C. § 7411(d) ...................................................... 5
42 U.S.C. § 7411(j) ................................................. 6, 25
42 U.S.C. § 7412 .............................................. 6, 22, 25
42 U.S.C. § 7419 .............................................. 6, 25, 31
42 U.S.C. § 7420 ........................................................ 25
42 U.S.C. § 7521 .................................................... 6, 25
42 U.S.C. § 7607 ............................................ 26, 36, 38
42 U.S.C. § 7607(a)(1) ................................................ 15
42 U.S.C. § 7607(b)(1) .......... 1-3, 5-7, 14, 16-18, 20-22,
............................ 25-29, 31, 32, 35-40, 42-45, 54, 55
41 Fed. Reg. 56,767 (Dec. 30, 1976) .................... 43, 46
78 Fed. Reg. 5,666 (Jan. 25, 2013) ............................ 30
80 Fed. Reg. 65,292 (Oct. 26, 2015) ............................ 7
85 Fed. Reg. 20,165 (Apr. 10, 2020) .......................... 28
85 Fed. Reg. 65,722 (Oct. 16, 2020) .......................... 50
x
86 Fed. Reg. 68,413 (Dec. 2, 2021) ............................ 28
87 Fed. Reg. 9,798 (Feb. 22, 2022) .... 10, 33, 34, 47, 53
87 Fed. Reg. 22,463 (Apr. 15, 2022) ...................... 9, 31
87 Fed. Reg. 31,470 (May 24, 2022) ............................ 9
88 Fed. Reg. 9,336 (Feb. 13, 2023) ..... 1, 10, 11, 35, 39,
................................................... 40, 44, 47, 49, 50-54
89 Fed. Reg. 12,666 (Feb. 16, 2024) ...................... 9, 31
89 Fed. Reg. 95,117 (Dec. 2, 2024) ............................ 32
H.R. Rep. 95-294 (1977) ............................................ 43
Mot. to Transfer, Oklahoma v. EPA, No. 239514, Dkt. No. 10983947 (10th Cir. Mar. 16,
2023) ....................................................................... 12
Mot. to Transfer, Utah v. EPA, No. 23-9509,
Dkt. No. 10983793 (10th Cir. Mar. 16, 2023) ....... 12
Order, Alabama v. EPA, No. 23-11173, Dkt. No.
24 (11th Cir. July 12, 2023) ................................... 15
Order, Arkansas v. EPA, No. 23-1320, Dkt. No.
5269098 (8th Cir. April 25, 2023) .......................... 14
Order, Nevada Cement Co. v. EPA, No. 23-682,
Dkt. No. 27 (9th Cir. July 3, 2023) .................. 14-15
Order, Utah v. EPA, No. 23-9509, Dkt. No.
10994985 (10th Cir. April 27, 2023) ...................... 15
Pub. L. 91-604 (Dec. 31, 1970) .................................. 37
Pub. L. 95-95 (Aug. 7, 1977) .................................. 6, 27
Pub. L. 95-190 (Nov. 16, 1977) .............................. 6, 27
The Merriam-Webster Dictionary (1974) ........... 41, 42
INTRODUCTION
The Clean Air Act makes the regional courts of
appeals the venue for challenges to EPA actions taken
under enumerated statutory provisions, as well as
challenges to any other “locally or regionally
applicable” action. 42 U.S.C. § 7607(b)(1). Under the
statute, EPA actions on state implementation plans,
which govern how each State individually implements
national air quality standards, are reviewable in the
regional circuits. As then-Judge Kavanaugh put it,
“EPA’s ‘action in approving or promulgating any
implementation plan’ is the prototypical ‘locally or
regionally applicable’ action that may be challenged
only in the appropriate regional court of appeals.” Am.
Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453,
455 (D.C. Cir. 2013) (quoting § 7607(b)(1)).
In
2023,
EPA
disapproved
21
state
implementation plans that States had separately
prepared and submitted. Each state plan covered a
single State and analyzed only that State’s obligations
under the Act, using state-specific reasoning. EPA
separately evaluated “the contents of each individual
State’s submission … on [its] own merits.” 88 Fed.
Reg. 9,336, 9,354 (Feb. 13, 2023). Because under the
text of the statute EPA action on an implementation
plan is reviewable in the appropriate regional court of
appeals, Petitioners and other parties from 12 States
challenged EPA’s disapproval of their respective state
plans in the applicable regional circuit.
The Tenth Circuit rejected that straightforward
venue determination. According to the Tenth Circuit,
EPA’s publication of 21 state plan disapprovals in a
single Federal Register notice and application of
2
common statutory interpretations and analytical
methods made the state plan disapprovals “nationally
applicable” and therefore reviewable only in the D.C.
Circuit. Pet.App.12a-13a.
This Court should reject that misinterpretation of
the Act’s venue provision. Under Section 7607(b)(1),
venue depends on the EPA “action” under review. The
statute defines the relevant EPA action by reference
to the statutory authority EPA is exercising. Here,
EPA exercised its Section 7410 authority, which
requires separate review of each individual State’s
plan. Each state plan, after all, applies only to a single
State. Even more clearly, state plan decisions are not
“nationally applicable,” like the setting of national air
quality standards. The text of the Clean Air Act thus
compels the conclusion that disapprovals of state
plans are locally applicable actions reviewable in the
regional courts of appeals.
EPA’s choice to lump 21 state plan disapprovals
into a single Federal Register notice does not change
the state-specific statutory authority EPA was
exercising or the substance of the action it took. If it
did, EPA could manipulate venue by combining two
locally applicable but entirely unrelated actions into a
single notice. Nor does it matter that EPA used
uniform statutory interpretations or some of the same
analytical methods across otherwise locally applicable
actions. Every EPA action incorporates the agency’s
interpretation of the Act. If EPA applied inconsistent
statutory interpretations or differing analytical
frameworks to similar actions under the Act, that
unexplained inconsistency would be arbitrary and
3
capricious. And a venue test that turned on the extent
to which EPA relied on uniform analytical methods or
statutory interpretations would produce complex linedrawing problems that are not contemplated by the
simple venue statute Congress enacted.
EPA also raised an alternative argument. Based
on a narrow exception in the venue statute, EPA
argued that the petitions belong in the D.C. Circuit
because EPA designated the disapprovals as “based on
a determination of nationwide scope or effect.”
§ 7607(b)(1). The Tenth Circuit did not reach this
question, but this Court should. EPA’s alternative
argument fails. EPA’s disapprovals were “based on” its
rejection of each State’s analysis contained in their
individual plans about the specific emissions
stemming from in-state sources. That is not “a
determination of nationwide scope or effect.”
For these reasons, Petitioners’ challenges to
EPA’s disapprovals of the Oklahoma and Utah state
implementation plans belong in the Tenth Circuit.
The opinion below must be reversed.
OPINIONS BELOW
The decision of the court of appeals (Pet.App.1a19a) is reported at 93 F.4th 1262.
JURISDICTION
The Tenth Circuit’s order transferring venue was
entered on February 27, 2024. Petitioners timely
petitioned for certiorari on March 28, 2024. This Court
has jurisdiction to review that order on a writ of
certiorari under 28 U.S.C. §§ 1254(1) and 2101(e).
4
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reproduced at
Pet.App.20a-48a.
STATEMENT
A. Statutory Background
1. The Clean Air Act centers on the “‘core
principle’ of cooperative federalism.” EPA v. EME
Homer City Generation, L.P., 572 U.S. 489, 511 n.14
(2014). It does so by dividing responsibility and
authority for assuring air quality between EPA and
the States.
EPA, for example, establishes National Ambient
Air Quality Standards (NAAQS) for certain
pollutants, like ozone. See 42 U.S.C. § 7409(a)-(b).
Each State then assumes “primary responsibility for
assuring air quality.” 42 U.S.C. § 7407(a). States do so
by establishing state implementation plans, which
“implement[], maint[ain], and enforce[]” the national
standards based on state-specific considerations. Id.
§ 7410(a)(1).
When
it
comes
to
developing
these
implementation plans, “states, not EPA, drive the
regulatory process.” Texas v. EPA, 829 F.3d 405, 411
(5th Cir. 2016) (“Texas 2016”). “Each State is given
wide discretion in formulating its plan.” Union Elec.
Co. v. EPA, 427 U.S. 246, 250 (1976). For example, a
plan must “include enforceable emissions limitations,”
§ 7410(a)(2)(A), but “so long as the ultimate effect of a
State’s choice of emission limitations is compliance
with” the “general requirements” of the Act, the State
may implement “whatever mix of emissions
5
limitations [is] best suited to its particular situation.”
Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 79
(1975). States thus enjoy “considerable latitude in
determining specifically how the [NAAQS will] be
met.” Id. at 87.
By contrast, EPA “is relegated by the Act to a
secondary role.” Id. at 79. Once a State develops and
submits its plan, EPA “shall approve” the plan “if it
meets all of the applicable requirements of” the Act.
§ 7410(k)(3). EPA “has no authority to question the
wisdom of a State’s choices” in developing a state plan.
Train, 421 U.S. at 79. EPA may disapprove a state
plan and promulgate a federal plan for the State only
if the submitted state plan does not satisfy the statute.
§ 7410(c)(1).
2. The Clean Air Act’s venue provision reinforces
this balance between national standards and local
implementation. Section 7607(b)(1) grants the courts
of appeals original jurisdiction over challenges to
EPA’s actions under the Act. And it divides venue
between the regional courts of appeals and the D.C.
Circuit. § 7607(b)(1).
Congress provided a list of actions that EPA takes
under “specifically enumerated provisions of the Act”
that are reviewable in the regional circuits. Harrison
v. PPG Indus., Inc., 446 U.S. 578, 584 (1980). Most
relevant here, that list begins with any EPA action
“approving or promulgating any implementation plan
under section 7410 … or section 7411(d) of this title.”
§ 7607(b)(1). It also includes other actions that are,
6
like implementation plans, by their nature local, such
as “any order” issued under Sections 7411(j)1 or 7419.2
By contrast, Section 7607(b)(1) directs to the D.C.
Circuit a separate list of actions, each of which is
national in nature. When EPA promulgates “any
national primary or secondary ambient air quality
standard,” national emissions standards for
hazardous pollutants under Section 7412, standards
of performance for new sources under Section 7411, or
emissions standards for motor vehicles under Section
7521, challenges to those actions must be brought in
the D.C. Circuit. § 7607(b)(1).
In 1977, Congress made two changes to this venue
provision. First, Congress added catchalls: “any other
final action of the Administrator under [the] Act which
is locally or regionally applicable” is reviewable in the
regional circuit, while “any other nationally applicable
regulations promulgated, or final action taken,” by
EPA is reviewable in the D.C. Circuit. See Pub. L. 9595 (Aug. 7, 1977). Second, after realizing that the
original provision only mentioned EPA’s approval of
state plans promulgated under Sections 7410 or 7411,
Congress added a parenthetical to the provision
directing locally or regionally applicable actions to the
regional courts of appeals: “(including any denial or
disapproval by the Administrator under title I).” Pub.
L. 95-190 (Nov. 16, 1977).
1 Section 7411(j) grants EPA authority to give specific sources
“waivers from the” pollution standards “to encourage the use of
an innovative technological system.”
2 Sections 7419 authorizes EPA to issue “orders” that relate to
a specific “nonferrous smelter.”
7
Finally, Section 7607(b)(1) establishes an
exception to the general rules for venue. Suits that
would otherwise be filed in a regional circuit must “be
filed only in the [D.C. Circuit] if [the] action is
[1] based on a determination of nationwide scope or
effect and [2] if in taking such action the
Administrator finds and publishes that such action is
based on such a determination.” § 7607(b)(1).
B. Oklahoma’s
and
Implementation Plans
Utah’s
State
1. In 2015, EPA revised the NAAQS for ozone,
reducing the national standard from 75 to 70 parts per
billion. 80 Fed. Reg. 65,292, 65,293-94 (Oct. 26, 2015).
Each State therefore developed an implementation
plan for the revised NAAQS. See § 7410(a)(1).
These state plans addressed several statutory
requirements, including the Act’s “Good Neighbor”
provision. See § 7410(a)(2)(D)(i)(I). That provision
delegates to States the task of ensuring no “source or
other type of emissions activity within the State” will
emit “any air pollutant in amounts which will …
contribute significantly to nonattainment” or
“interfere with maintenance” of the NAAQS by “any
other State.” Id.; see also Ohio v. EPA, 603 U.S. 279,
284 (2024).
In addressing their Good Neighbor obligations,
each state plan relied on state-specific reasoning and
data to determine whether that State was significantly
contributing to nonattainment or interfering with
maintenance in downwind States. States worked in
close coordination with EPA’s Regional Offices. See,
e.g., J.A.27a-32a (correspondence between EPA’s
8
Region 6 Office and Oklahoma regarding Oklahoma’s
draft Good Neighbor plan); No. 23-9509 (10th Cir.),
J.A.0069-73 (correspondence between EPA’s Region 8
Office and Utah regarding Utah’s plan). Analyzing the
potential impacts of emissions from one State to
another State’s air quality requires complex computer
models or other analytical methods. Some States, like
Utah, developed their individual analyses by reference
to data, modeling, and analytical frameworks
provided by EPA. But many state plans declined to
rely on the materials EPA had developed, which EPA
had assured States they could do in pre-submission
guidance. No. 23-9514 (10th Cir.), J.A.66-75, 98-110.
For instance, Oklahoma relied on region-specific
modeling prepared by Texas, rather than EPA’s
national modeling, to evaluate its projected
contributions to other States. J.A.13a-14a. Oklahoma
also performed a supplemental “weight-of-theevidence” analysis of three specific sites to which
EPA’s modeling suggested Oklahoma might
significantly contribute ozone, which differed from
EPA’s default framework for analyzing whether
projected ozone contributions were “significant.”
J.A.23a-26a.
That
analysis
explained
why,
notwithstanding EPA’s modeling, Oklahoma would
not significantly contribute to violations of the
national ozone standard at those sites, based on
emissions trends at those places and Oklahoma’s own
emissions trends. J.A.26a.
Similarly, while Utah’s plan analyzed its future
contributions to downwind States by reference to
EPA’s modeling and data, J.A.37a-39a, Utah applied
9
a weight-of-evidence approach to assess whether
under the conditions specific to Utah and Colorado,
Utah “contributed significantly” to nonattainment or
“interfered with” maintenance in Colorado or other
downwind States. J.A.42a-57a. Utah also discussed
the sizable contribution of international emissions,
wildfires, and biogenic (natural source) emissions “to
illustrate the magnitude of these emissions compared
to those modeled as coming from Utah.” J.A.42a-51a
Based
on
this
weight-of-evidence
approach
considering all the evidence taken together, Utah
concluded that its contributions to downwind state air
quality are not significant and additional emission
reductions were unnecessary. J.A.57a.
2. After States submitted their individual state
plans, EPA reviewed them. It approved 24 state plans.
And, in each approval, EPA asserted that the approval
was a locally or regionally applicable action
reviewable only in an “appropriate circuit,” not the
D.C. Circuit. See, e.g., 87 Fed. Reg. 22,463 (Apr. 15,
2022) (Iowa).
But EPA proposed to disapprove 23 state plans,
which it published in 13 separate Federal Register
notices.3 Many of the proposed disapproval notices
covered a single State, like Utah. See, e.g., 87 Fed. Reg.
31,470 (May 24, 2022). Other notices grouped together
several States from one of EPA’s regions, like the
disapproval notice that included Oklahoma. See, e.g.,
3 EPA recently proposed to disapprove the state plans of five
additional States. 89 Fed. Reg. 12,666 (Feb. 16, 2024) (Arizona,
Iowa, Kansas, New Mexico, and Tennessee). EPA had previously
approved the state plans for Iowa and Kansas.
10
87 Fed. Reg. 9,798 (February 22, 2022) (Arkansas,
Louisiana, Oklahoma, Texas). And each of EPA’s
proposed disapprovals—whether issued individually
or for a regional group of States—was signed by a
regional EPA administrator. See, e.g., 87 Fed. Reg.
9,798, 9,835 (Feb. 22, 2022).
EPA’s proposed disapprovals examined each
State’s plan individually, considering each State’s
specific submission, emissions sources and trends, and
downwind air quality contributions. For example,
EPA proposed to disapprove Oklahoma’s plan
“[b]ecause” it concluded Oklahoma failed to correctly
“analyze emissions from the sources and other
emissions activity from within the State to
determine whether its contributions [to downwind
States] were significant.” Id. at 9,823-24. EPA reached
that conclusion by, among other reasons, rejecting the
Texas air quality modeling used by Oklahoma and
Oklahoma’s region-specific “weight of evidence”
analysis. Id. at 9,822.
EPA’s analysis of Utah’s plan was similarly
tailored to Utah’s submission. EPA found Utah’s
arguments based on meteorological and air transport
issues unique to the West unconvincing. 88 Fed. Reg.
at 9,360. EPA also concluded that there were
“technical and legal flaws in [Utah’s] arguments
related to relative contribution, international and
non-anthropogenic emissions, and the relationship of
upwind versus downwind-state responsibilities.” Id.
States and regulated companies submitted
comments on the proposed disapprovals, explaining
why each State’s particular circumstances showed the
11
State’s plan was factually, analytically, and legally
justified. See, e.g., No. 23-9514 (10th Cir.), J.A.03890404 (Oklahoma comment letter on EPA’s proposed
Oklahoma state plan disapproval); J.A.58a-67a (Utah
comment letter on EPA’s proposed Utah state plan
disapproval); J.A.68a-105a (Utah industry comment
letters).
3. EPA nevertheless finalized the disapproval of
21 Good Neighbor plans. But unlike its proposed
disapprovals, EPA combined the final disapprovals
into a single Federal Register notice. 88 Fed. Reg. at
9,336. Even so, EPA conceded that its final
disapprovals were based on evaluations of “the
contents of each individual state’s submission … on
[its] own merits.” Id. at 9,354. EPA included
individual discussions of each state plan. See id. at
9,354-9,361. And EPA codified each state plan
disapproval in separate subparts of the Code of
Federal Regulations. See id. at 9,381-84.
Yet EPA argued that its state plan disapprovals
were “nationally applicable,” asserting that any
challenges “must be filed in the D.C. Circuit.” Id. at
9,380. EPA offered two reasons. First, its notice
covered state plans from “a large number of states
located across the country.” Second, the disapprovals
were connected by “the interdependent nature of
interstate pollution transport and the common core of
knowledge and analysis involved in evaluating the
submitted” state plans. Id.
EPA also took the alternative position that the
rulemaking was “based on a determination of
‘nationwide scope or effect.’” Id. EPA argued that it
12
was relying “on a common core of nationwide policy
judgments and technical analysis,” including a
“nationally consistent 4-step interstate transport
framework for assessing obligations.” Id. EPA
likewise pointed to its reliance on “the results from
nationwide photochemical grid modeling.” Id. And it
explained that it “evaluated each state’s arguments
for the use of alternative approaches or alternative
sets of data with an eye to ensuring national
consistency and avoiding inconsistent or inequitable
results” between States. Id. at 9,381.
C. Procedural History
States and industry parties in 12 States
challenged their respective state implementation plan
disapprovals in their regional circuits. In each case,
EPA moved to dismiss or transfer venue to the D.C.
Circuit, arguing that its state plan disapprovals were
either “nationally applicable regulations” or “based on
a determination of nationwide scope or effect.” E.g.,
Mot. to Transfer, Oklahoma v. EPA, No. 23-9514, Dkt.
No. 10983947 (10th Cir. Mar. 16, 2023); Mot. to
Transfer, Utah v. EPA, No. 23-9509, Dkt. No.
10983793 (10th Cir. Mar. 16, 2023). This tactic was
largely unsuccessful.
The Fifth Circuit explained that the text of the
Clean Air Act “makes clear that the EPA’s relevant
actions for purposes of the present litigation are its
various [state plan] denials.” Texas v. EPA, No. 2360069, 2023 WL 7204840, at *4 (5th Cir. May 1, 2023).
So while “the EPA packaged these disapprovals
together with the disapprovals of eighteen other
States … , the EPA’s chosen method of publishing an
13
action isn’t controlling.” Id. “What controls is the
[Act]” and the Act “is very clear: The relevant unit of
administrative action here is the EPA’s individual
[state plan] denials.” Meanwhile, “the ‘legal impact’ of
the three [state plan] disapprovals is plainly local or
regional” given that they “involve only the regulation
of Texas, Louisiana, and Mississippi emission sources
and have legal consequences only for Texas,
Louisiana, and Mississippi facilities.” Id. at *5. Nor
are the actions challenged in that case “based on a
determination of nationwide scope or effect” because
EPA’s decisions “were plainly based on a number of
intensely factual determinations unique to each
State.” Id. (citation and internal marks omitted).
The Fourth Circuit also denied EPA’s motion to
transfer. West Virginia v. EPA, 90 F.4th 323, 325 (4th
Cir. 2024). It held that EPA’s disapproval was “based
entirely on West Virginia’s particular circumstances
and its analysis of those circumstances,” so it was
“locally or regionally applicable” and “was not based
on a determination of nationwide scope or effect.” Id.
at 329. It also rejected EPA’s argument that the action
was national because it applied “a national standard
to disapprove a plan,” reasoning if that “were the
controlling factor, there never could be a local or
regional action … because every action of the EPA
purportedly applies a national standard created by the
national statute and its national regulations.” Id. at
329-30.
Most recently, the Sixth Circuit reached the same
conclusion in a published opinion rejecting EPA’s
arguments as part of its opinion on the merits,
14
Kentucky v. EPA, __ F. 4th __, Nos. 23-3216/3225, 2024
WL 5001991, at *5-14 (6th Cir. Dec. 6, 2024), which
followed an unpublished opinion rejecting EPA’s
motion to transfer, Kentucky v. EPA, 2023 WL
11871967 (6th Cir. July 25, 2023). The Sixth Circuit
concluded that EPA’s disapprovals were not
“nationally applicable” actions. Kentucky, 2024 WL
5001991, at *7. Contrary to EPA’s argument,
Ҥ 7607(b)(1) focuses on the statute (not the
rulemaking) to distinguish the EPA actions” and here,
the relevant statute “requires the EPA to ‘act’ on each
State’s ‘submission’ on a plan-by-plan basis.” Id. at *89 (citing, inter alia, § 7410). Finally, it rejected EPA’s
argument that the agency’s “preliminary choices (such
as its use of the four-step framework for the Good
Neighbor Provision)” mean the action was “based on a
determination of nationwide scope or effect” because
“those choices did not ‘end[]’ the ‘controversy’: whether
the EPA should approve Kentucky’s plan.” Id. at *12.
“Instead, the ‘determination’ underlying the EPA’s
disapproval was its ultimate decision that Kentucky
did not satisfy the Good Neighbor Provision.” Id.
Meanwhile, the Eighth Circuit denied EPA’s
motions to transfer challenges to the disapprovals of
Arkansas’s, Missouri’s, and Minnesota’s plans in a
series of summary orders. E.g., Order, Arkansas v.
EPA, No. 23-1320, Dkt. No. 5269098 (8th Cir. April 25,
2023). Motions panels in the Ninth and Eleventh
Circuits have deferred decision on EPA’s motions to
transfer to a later merits panel in challenges to the
state plan disapprovals of Nevada and Alabama.
Order, Nevada Cement Co. v. EPA, No. 23-682, Dkt.
15
No. 27 (9th Cir. July 3, 2023); Order, Alabama v. EPA,
No. 23-11173, Dkt. No. 24 (11th Cir. July 12, 2023). So
too did the Tenth Circuit motions panel. Order, Utah
v. EPA, No. 23-9509, Dkt. No. 10994985 (10th Cir.
April 27, 2023).
But the merits panel of the Tenth Circuit held
that EPA’s disapprovals of the Utah and Oklahoma
state plans were “nationally applicable” and ordered
the cases transferred to the D.C. Circuit. Pet.App.12a19a. The Tenth Circuit justified this conclusion by
stating: “Petitioners seek review of a final rule
disapproving [state plans] from 21 states across the
country—spanning eight EPA regions and ten federal
judicial circuits—because those states all failed to
comply
with
the
good-neighbor
provision.”
Pet.App.12a. “And,” the Tenth Circuit continued, “in
promulgating that rule, the EPA applied a uniform
statutory interpretation and common analytical
methods, which required the agency to examine the
overlapping and interwoven linkages between upwind
and downwind states in a consistent manner.” Pet.
App. 12a-13a. In a footnote, the Tenth Circuit declined
to “address EPA’s alternative argument that the
petitions belong in the D.C. Circuit” because they
challenge actions “based on a determination of
nationwide scope or effect.” Pet.App.19a n.8.
SUMMARY OF ARGUMENT
I. The proper venue for Oklahoma’s and Utah’s
challenges to EPA’s disapproval of their state plans is
the Tenth Circuit.
A.1. Section 7607(a)(1) designates venue based on
the statutory authority EPA exercised in taking the
16
action being challenged. Oklahoma and Utah
separately challenged EPA’s disapproval of their
individual state plans under Section 7410 of the Act.
The question is thus whether those actions were
nationally applicable, reviewable in the D.C. Circuit,
or locally or regionally applicable actions, reviewable
in the Tenth Circuit.
2. The text of Section 7410 establishes that EPA’s
disapproval of state implementation plans is a locally
or regionally applicable action. That provision
exclusively refers to State and EPA action on a state
implementation plan in the singular. Section 7410
requires “each State” to develop a “plan” to govern
emissions. EPA must then act “on each plan.” EPA’s
action on a state plan is thus a “prototypical ‘locally or
regionally applicable’ action” under Section
7607(b)(1). Am. Rd. & Transp. Builders Ass’n, 705
F.3d at 455.
3. The text of Section 7607(b)(1) dispels any
remaining doubt about the actions at issue. Congress
identified “any denial or disapproval” under
subchapter I—which includes Section 7410—as an
example of locally or regionally applicable actions.
This is further supported by Congress’s decision
in Section 7607(b)(1) to list state plan approvals as
reviewable in the regional circuit. EPA exercises the
same statutory authority—and conducts the same
analysis—whether it approves or disapproves a state
plan. Because state plan disapprovals require EPA to
apply the same state-specific review as required by the
statute, disapprovals are locally or regionally
applicable too. Indeed, EPA has admitted its state
17
plan approvals are locally or regionally applicable. Its
insistence that disapprovals are different is
incoherent.
B. The Tenth Circuit’s contrary holding does not
withstand scrutiny.
1. The Tenth Circuit relied primarily on the belief
that the “action” being challenged was the notice
simultaneously announcing the disapproval of 21
state plans. But EPA’s chosen format for publishing
its disapprovals is different than the substantive
actions EPA actually took. Section 7607(b)(1) itself
distinguishes between the action being challenged—
approval or disapproval of individual state plans—and
EPA’s notice of that action. The Tenth Circuit’s rule
would give EPA power to manipulate venue by
transforming entirely unrelated (and locally
applicable actions) into a single, nationally applicable
action by issuing a combined Federal Register notice.
2. EPA’s application of uniform statutory
interpretation and common analytical methods does
not matter either. EPA must apply consistent
interpretations and methods, lest its decisionmaking
be arbitrary and capricious. EPA thus correctly
admitted at the certiorari stage that use of a national
standard is not sufficient to render an action
nationally applicable. After all, EPA applied the exact
same principles and methodologies to its state plan
approvals, which it admits were locally applicable.
And EPA’s state plan disapprovals considered and
rejected state-specific reasoning within each State’s
plan.
18
Regardless, the Section 7607(b)(1) “applicability”
analysis should not require a detailed inquiry into
EPA’s reasoning. Courts have repeatedly rejected an
interpretation of Section 7607(b)(1)’s applicability
inquiry that considers an action’s “practical effects” or
anything other than the substantive statutory
authority EPA was exercising.
3. The Tenth Circuit further held that no action is
categorically reviewable in the regional circuits, even
actions Congress specifically listed as so reviewable.
Rather, the court held that petitioners must always
prove the action was locally or regionally applicable.
That interpretation renders the list of specifically
enumerated examples in Section 7607(b)(1) entirely
superfluous. It also ignores that the statute originally
did not include a catchall. The prior version of the Act
simply listed actions and identified the correct venue
for each. When Congress added the catchall, it
necessarily expanded the number of actions subject to
challenge in the regional circuits. Finally, under the
last-antecedent canon, the phrase “which is locally or
regionally applicable” modifies “any other action,” not
the enumerated entries in the list.
II. EPA’s reliance on Section 7607(b)(1)’s narrow
exception—claiming that the challenges must be filed
in the D.C. Circuit because the challenged actions are
“based on a determination of nationwide scope or
effect”—fails, too.
A. That exception requires EPA to first publish a
finding that the action was “based on a determination
of nationwide scope or effect” and then for courts to
independently review the “determination” on which
19
EPA “based” its action—that is, the core or ultimate
reason why EPA took the action it did. Once the court
has assessed the “determination” the action was
“based on,” it must decide whether that determination
has nationwide scope or effect. A determination has
nationwide scope if it covers the entire country and
nationwide effect if it produces consequences across
the whole country. But if EPA’s action was “based on”
a determination specific to a State, the exception does
not apply.
B.1 EPA’s disapprovals were based on
determinations specific to each State. State plans rely
on intensely factual, state-specific analysis.
Oklahoma’s plan, for instance, analyzed state-specific
projections of future ozone emissions using regionspecific modeling. Utah’s plan likewise analyzed
emissions projections for specific sources within and
near Utah based on state- and region-specific factors.
EPA rejected Oklahoma’s use of region-specific
modeling and concluded that Oklahoma had not
correctly analyzed its projected contributions to
downwind States. EPA likewise concluded that Utah
had inadequately analyzed its projected contributions
to nearby States because its analysis had “technical
and legal flaws.” These are plainly local
determinations. And EPA’s analysis of other state
plans, whether it approved or disapproved them, was
similarly state-specific.
2. EPA’s contrary arguments fail. EPA principally
argues that it used a nationally consistent, 4-step
framework for analyzing state plans. But although
that framework organized EPA’s analysis, it did not
20
constitute the ultimate justification for its judgment
on the merits of the underlying state plans. Indeed,
EPA also used this 4-step framework when approving
state plans. EPA’s ultimate reasons for approving or
disapproving a particular plan were thus “based on”
state-specific circumstances, not this 4-step analytical
framework.
Same with EPA’s reliance on nationwide
emissions modeling. EPA’s core reasons for approving
or disapproving a state plan turned on whether that
State would significantly contribute ozone to
downwind States, not what modeling it used. Indeed,
EPA was adamant that neither its 4-step framework
nor its nationwide modeling bound either the States
or EPA.
EPA also sought to avoid inconsistent results
when reviewing state plans. But that is a basic
requirement of agency rulemaking. EPA’s general
preference for treating similarly situated States alike
does not constitute the core reasons why EPA
approved or disapproved a given state plan.
3. Finally, EPA argued that challenges to its state
plan disapprovals should be filed in the D.C. Circuit to
eliminate potentially inconsistent judicial opinions.
But this desire for uniformity is not a “determination”
on which EPA’s underlying action was based. And, in
any case, Section 7607(b)(1) is designed to allow
different circuits to analyze distinct state plan actions.
21
ARGUMENT
I.
The proper venue for a challenge to the
disapproval of a state implementation plan
is the regional circuit.
The venue analysis is straightforward. Under
Section 7607(b)(1), venue depends on the type of EPA
action being challenged, defined by reference to the
statutory authority EPA exercises. Petitioners are
challenging EPA’s disapprovals of Oklahoma’s and
Utah’s implementation plans under Section 7410.
That provision grants States the authority to prepare
and EPA the authority to approve or disapprove
individual state plans. Indeed, Congress expressly
identified state implementation plan approvals and
disapprovals in the regional circuit review provision.
§ 7607(b)(1). There can thus be little doubt that state
plan disapprovals are locally applicable actions.
In ruling otherwise, the Tenth Circuit
misinterpreted the statute. Venue under Section
7607(b)(1) does not turn on whether EPA chose to
publish several separate actions in a single notice—
that confuses the substance of the statutory authority
EPA exercised with the form of publication. Nor does
it depend on whether EPA relied on uniform statutory
interpretation and common analytical methods—that
is true of nearly every lawful agency action. And the
Tenth Circuit’s further suggestion that no action, even
those specifically listed in Section 7607(b)(1), is
categorically reviewable in the regional circuits is
inconsistent with the text.
22
A. Under the Act’s plain text, EPA action on
state plans is reviewable in the regional
circuits.
1. Venue under Section 7607(b)(1) turns on the
EPA “action” being challenged. Section 7607(b)(1)
“specifically enumerate[s]” EPA actions subject to
judicial review, itemizing actions that are reviewable
in the D.C. Circuit and ones that are reviewable in the
regional circuits. Harrison, 446 U.S. at 579, 584.
Those lists make clear the relevant “action” is defined
by the statutory authority under which EPA acts. See
§ 7607(b)(1). For example, an action promulgating
“any emission standard or requirement under section
7412 of this title” is reviewable in the D.C. Circuit,
while an “action in approving or promulgating any
implementation plan under section 7410 of this title”
is reviewable in the regional circuit. Id.; see also
Kentucky, 2024 WL 5001991, at *8 (agreeing that “the
phrase ‘final action’ adopts a ‘statutory approach’”
because “[t]he provision ties the proper tribunal to the
activity taken ‘under this chapter’”).
Section 7607(b)(1) then provides “catchall”
provisions for challenges to EPA actions not
specifically enumerated. See Harrison, 446 U.S. at
579, 584, 587. “[A]ny other nationally applicable”
action is reviewed in the D.C. Circuit and “any other
final action of the Administrator under this chapter
(including any denial or disapproval by the
Administrator under subchapter I) which is locally or
regionally applicable” is reviewed in the regional
circuit. § 7607(b)(1).
23
Here, Petitioners are challenging EPA’s
disapprovals
of
Oklahoma’s
and
Utah’s
implementation plans, actions EPA took under
Section 7410 of Title 42, which is codified in
subchapter I. The question is thus whether
disapprovals under Section 7410 are reviewable in the
regional circuit.
2.
Section
7410
makes
clear
EPA’s
implementation plan decisions—the actions at issue—
are locally or regionally applicable. Section 7410(a)(1)
requires “[e]ach State” to develop “a plan” to govern
emissions “within such State.” Section 7410(a)(2) then
requires “[e]ach implementation plan” to be
“submitted by a State.” Section 7410(k) next mandates
EPA to “act[] on each plan,” always referring to “‘plan’
in the singular.” West Virginia, 90 F.4th at 330 (citing
§ 7410(k)(1)-(3)). That requires EPA to determine
whether “the plan” is complete, § 7410(k)(1)(B), and to
“approve” “a plan” if it meets the statutory
requirements, § 7410(k)(2)-(3). And under Section
7410(c), if EPA “disapproves a State implementation
plan,” it may promulgate “a Federal implementation
plan,” unless “the State corrects the deficiency” in its
state plan first. Section 7410 accordingly “requires the
EPA to ‘act’ on each State’s ‘submission’ on a plan-byplan basis.” Kentucky, 2024 WL 5001991, at *9.
EPA’s approval or disapproval of a state plan
under Section 7410 thus applies only to a “single
state.” Chevron U.S.A. Inc. v. EPA, 45 F.4th 380, 386
(D.C. Cir. 2022) (quoting Sierra Club v. EPA, 926 F.3d
844, 849 (D.C. Cir. 2019)). Because a state plan applies
only to a single State, the “denial and legal impact” of
24
the disapproval of a state plan “affects only [that
State]—that is, it does not concern the nation, let
alone any other state.” Kentucky, 2023 WL 11871967,
at *2.
EPA is also required to review each state plan
separately and on its own terms. States have the
“primary responsibility for assuring air quality.”
§ 7407(a). EPA’s individualized review is necessary
because the statute gives each State “wide discretion
in formulating its plan.” Union Elec. Co., 427 U.S. at
250. That regulatory discretion—and the “intensely
factual determinations” about the “particularities of
the emissions sources” in the State and other local
conditions on which state plans are based—means
that state plans differ markedly from one another.
Texas, 829 F.3d at 421. That is the point of state plans.
Congress delegated this regulatory authority to
States, rather than authorizing EPA to establish a
uniform, nationally applicable plan, because States
are “best positioned to adjust for local differences.”
Alaska Dep’t of Env’t Conservation, 540 U.S. at 488.
The inherently state-specific nature of the state
plan preparation and review process is why EPA’s
approval of state plans is a “prototypical ‘locally or
regionally applicable’ action” for venue purposes. Am.
Rd. & Transp. Builders Ass’n, 705 F.3d at 455; see also
Sierra Club v. EPA, 47 F.4th 738, 744 (D.C. Cir. 2022)
(a state plan “by nature concerns a particular state”);
Nat’l Parks Conservation Ass’n v. McCarthy, 816 F.3d
989, 993 (8th Cir. 2016) (same); ATK Launch Sys., Inc.
v. EPA, 651 F.3d 1194, 1199 (10th Cir. 2011)
(describing action on state plans as both “purely local
25
action” and “undisputably regional”); Texas Mun.
Power Agency v. EPA, 89 F.3d 858, 866 (D.C. Cir. 1996)
(same).
Context provides confirmation. The actions listed
by Section 7607(b)(1) as reviewable only in the D.C.
Circuit look nothing like a state plan disapproval
under Section 7410. Each of those actions points to
statutory provisions that grant EPA power to
promulgate generally applicable “standards” or
“requirements” applying uniformly to the whole
country. See supra 6. When EPA promulgates “any
national primary or secondary ambient air quality
standard,” national emissions standards for
hazardous pollutants under Section 7412, standards
of performance for all new sources under Section 7411,
or new emissions standards for all motor vehicles
under Section 7521, those must be challenged in the
D.C. Circuit. See § 7607(b)(1). Under the “‘ejusdem
generis’ canon,” which “instructs courts to interpret
the catchall as falling within the same class as the
specific items that precede it,” the nationally
applicable catchall cannot apply to the disapprovals of
state implementation plans, which unlike the setting
of national standards are not national. Kentucky, 2024
WL 5001991, at *7 (citing Bissonnette v. LePage
Bakeries Park St., LLC, 601 U.S. 246, 252 (2024)).
By
contrast,
the
implementation
plan
disapprovals challenged here are closely akin to
actions the statute designates for review in regional
circuit. The regional circuit provision references, for
example, Sections 7411(j), 7419 and 7420, each of
which authorize EPA to take action directed towards
26
a specific source. See § 7607(b)(1); see also W. Virginia
Chamber of Com. v. Browner, 166 F.3d 336, 1998 WL
827315, at *6 (4th Cir. 1998) (unpublished) (“[C]ertain
types of actions are clearly regionally applicable, for
instance, when the EPA brings an enforcement action
against or makes a determination with respect to a
particular facility.”). Most tellingly, Section 7607
specifically enumerates “petition[s] for review of the
Administrator’s action in approving or promulgating
any implementation plan under section 7410 of this
title”—plans like the ones Oklahoma and Utah
submitted here—as reviewable in the regional circuit.
§ 7607(b)(1). This context thus reinforces what is
already clear from the text: any implementation plan
disapproval under Section 7410 is a locally or
regionally applicable action.
3. If any doubt remained, disapprovals of state
plans are reviewable in the regional circuit because
Congress identified them as locally or regionally
applicable actions. Congress inserted within the
locally or regionally applicable catchall the
parenthetical phrase “(including any denial or
disapproval by the Administrator under subchapter
I).” That is what we have here: EPA disapproved
Oklahoma’s and Utah’s implementation plans using
its authority under Section 7410, which is codified in
subchapter I of the Act.
An interpretation that state plan denials or
disapprovals are nationally applicable actions would
render superfluous Congress’s decision to specifically
mention denials or disapprovals in the parenthetical.
Milner v. Dep’t of Navy, 562 U.S. 562, 575 (2011)
27
(“[S]tatutes should be read to avoid making any
provision ‘superfluous, void, or insignificant’” (citation
omitted)). Recall: when Congress first added the
catchall, it read “or any other final action of the
Administrator under this chapter which is locally or
regionally applicable.” See Pub. L. 95-95 (Aug. 7,
1977). If Congress thought denials or disapprovals are
sometimes nationally applicable, that language would
have been sufficient. But Congress amended the
catchall to clarify that it “includ[es] any denial or
disapproval” under subchapter I. Pub. L. 95-190 (Nov.
16, 1977). “When ‘Congress acts to amend a statute,
we presume it intends its amendment to have real and
substantial effect.’” Husky Int’l Elecs., Inc. v. Ritz, 578
U.S. 355, 359 (2016). Here, the real and substantial
effect of adding the parenthetical was to expand the
actions expressly subject to the regional review
provision. See Harrison, 446 U.S. at 585.
Moreover, Congress enumerated “approv[als]” of
“any implementation plan under section 7410” as
categorically reviewable in the regional circuits, so it
would make little sense to think that disapprovals of
the same implementation plans should be litigated in
a different venue. § 7607(b)(1). After all, the scope of
that catchall is “controlled and defined by reference”
to the specific examples “that precede it.” Sw. Airlines
Co. v. Saxon, 596 U.S. 450, 458 (2022) (citation
omitted). So where EPA’s “denial or disapproval” is
made under the same statutory authority as the
enumerated actions categorically reviewable in the
regional courts of appeals, the action is necessarily
locally or regionally applicable. Section 7410 governs
28
both approvals and disapprovals of implementation
plans and there is no legal distinction between state
plan disapproval and state plan approval actions.
Because state plan approvals under Section 7410 are
always reviewable in the regional circuit, state plan
disapprovals under that Section must be, too.
EPA conceded that its state plan approvals
implementing the same 2015 NAAQS were reviewable
locally. It instructed that “petitions for judicial review
… must be filed in the United States Court of Appeals
for the appropriate circuit.” See, e.g., 85 Fed. Reg.
20,165, 20,177 (Apr. 10, 2020) (Colorado and North
Dakota); 86 Fed. Reg. 68,413, 68,420 (Dec. 2, 2021)
(Florida, Georgia, North Carolina, and South
Carolina). That view mirrors how EPA (and courts)
have treated state plan decisions historically. See, e.g.,
Comm. for a Better Arvin v. EPA, 786 F.3d 1169, 1174
(9th Cir. 2015) (reviewing challenge to approval of
California’s implementation plan); Alabama Env’t
Council v. EPA, 711 F.3d 1277, 1279 (11th Cir. 2013)
(reviewing challenges to approval and subsequent
disapproval of revisions to Alabama’s implementation
plan); Ass’n of Irritated Residents v. EPA, 686 F.3d
668, 671 (9th Cir. 2012) (reviewing challenge to partial
approval of revisions to California’s implementation
plan); BCCA Appeal Grp. v. EPA, 355 F.3d 817, 821
(5th Cir. 2003) (reviewing challenge to approval of
Texas’s implementation plan). EPA’s opposite position
for state plan disapprovals makes no sense.
In sum, the text and context of Section 7607(b)(1)
confirms that EPA’s actions disapproving Oklahoma’s
and Utah’s state implementation plans were locally or
29
regionally applicable actions reviewable in the
regional circuit court. Venue for these cases
accordingly lies in the Tenth Circuit.
B. The Tenth Circuit
Section 7607(b)(1).
misinterpreted
Despite the Act’s plain text, the Tenth Circuit
ruled that because EPA published its disapprovals of
twenty-one state plans in a single Federal Register
notice and applied a uniform statutory interpretation
and common analytical methods, Oklahoma’s and
Utah’s challenges may be filed only in the D.C. Circuit.
That reasoning does not withstand scrutiny.
1. The Tenth Circuit rested primarily on the
mistaken assumption that “the final EPA action being
challenged” was “a final rule disapproving [state
plans] from 21 states across the country.”
Pet.App.12a. But that reasoning conflates EPA’s
decision about how to publish rulemakings with the
underlying substantive action EPA took. Under
Section 7607(b)(1), “venue depends entirely on—and is
fixed by—the nature of the agency’s action.” S. Ill.
Power Coop. v. EPA, 863 F.3d 666, 670 (7th Cir. 2017).
The relevant “action” here is thus EPA’s disapproval
of individual state plans under Section 7410. See
supra 22-23.
The Tenth Circuit literally elevated form over
substance. Its focus on the form of publication
contradicts Section 7607(b)(1), which specifically
distinguishes between the “action” being challenged
and EPA’s “notice of such … action … in the Federal
Register.” (emphasis added). But “the label that the
particular agency puts upon its given exercise of
30
administrative power” should not matter. Lewis-Mota
v. Sec’y of Lab., 469 F.2d 478, 481 (2d Cir. 1972)
(citation omitted)). “[R]ather it is what the agency does
in fact” that should control. Id. at 482; see also Brown
Express, Inc. v. United States, 607 F.2d 695, 700 (5th
Cir. 1979) (holding “frivolous” the argument that the
agency’s decision to label its action a “Notice of
Elimination” meant it was not a substantive rule
subject to notice and comment requirements). This
distinction “between the publication of a document
and its issuance, prescription, or promulgation” is
well-established. Humane Soc’y of the U.S. v. U.S.
Dep’t of Agric., 41 F.4th 564, 569 (D.C. Cir. 2022).
Moreover, if venue turned on whether EPA chose
to package multiple disapprovals in a single Federal
Register notice, EPA would have unfettered power to
ensure “the choice of ‘a tribunal favorable’ to it.”
Travis v. United States, 364 U.S. 631, 634 (1961)
(citation omitted). After all, agencies have discretion
to issue “omnibus” notices that combine many
different rules into a single Federal Register
document. See Reeder v. FCC, 865 F.2d 1298, 1300
(D.C. Cir. 1989) (“Normally, new FM channels are
allotted in individual rulemaking proceedings;
however, in this case the Commission decided to
allocate all of the new channels pursuant to a single
nationwide omnibus rulemaking.”); 78 Fed. Reg. 5,666
(Jan. 25, 2013) (combining four final rules arising
under different statutory authority into an “omnibus
final rule”).
The Tenth Circuit’s rule would thus enable
“gamesmanship” by EPA. Hertz Corp. v. Friend, 559
31
U.S. 77, 94 (2010). The agency could, for example,
manipulate venue by combining two locally applicable
but
entirely
unrelated
actions
under
Section 7607(b)(1)—like the approval of Oklahoma’s
state plan under Section 7410 and an “order” related
to a specific “nonferrous smelter” in Ohio under
Section 7419. Section 7607(b)(1) expressly lists both
actions as categorically reviewable in the regional
circuit. If published separately, each would be
challengeable in the appropriate regional circuit. But,
under the Tenth Circuit’s reasoning, if EPA published
them in the same Federal Register notice, they would
be nationally applicable and reviewable only in the
D.C. Circuit. See also Kentucky, 2024 WL 5001991, at
*8 (“Nothing in § 7607(b)(1)’s text would allow the
EPA to obtain D.C. Circuit review of the smelter order
simply by combining it with the air-quality
standard.”).
Take, as another particularly egregious example,
EPA’s contradictory venue determinations for the
state plans submitted by Iowa and Kansas. EPA
initially approved both state plans. When doing so,
EPA admitted the approvals were locally applicable.
See 87 Fed. Reg. at 22,463; 87 Fed. Reg. at 19,391. Two
years later, EPA proposed to disapprove the same
state plans for Iowa and Kansas but this time did so
in a single Federal Register notice along with three
other States. See 89 Fed. Reg. at 12,668, 12,695. EPA
then asserted that the disapprovals (and
simultaneous
promulgation
of
a
federal
implementation plan) were “nationally applicable.” Id.
at 12,725. There is simply no principled basis to treat
32
these state plan approvals as locally applicable but
treat disapprovals of the same states differently. And
when EPA partially disapproves and partially
approves a state plan, it likewise recognizes that is a
locally applicable action. See 89 Fed. Reg. 95,117,
95,120 (Dec. 2, 2024). This further confirms that EPA’s
purported distinction between approvals and
disapprovals is arbitrary.
2. The Tenth Circuit also pointed to EPA’s
application of “a uniform statutory interpretation and
common analytical methods.” Pet.App.12a-13a. But
Section 7607(b)(1) says nothing about EPA’s
reasoning or analysis. Again, the venue provision is
focused on the statutory authority under which EPA
took the challenged action.
Nor could venue under Section 7607(b)(1) turn on
whether EPA used a uniform statutory interpretation
or common analytical methods across otherwise
locally applicable actions. Every EPA action
“purportedly applies a national standard created by
the national statute and its national regulations.”
West Virginia, 90 F.4th at 329-30; see also Chevron
U.S.A. Inc., 45 F.4th at 387 (explaining that all
“locally or regionally applicable actions may require
interpretation of the Clean Air Act’s statutory terms”).
“Were that the appropriate consideration, there could
be no local or regional action.” West Virginia, 90 F.4th
at 328.
Indeed, if EPA applied different standards or
interpretations to similarly situated States, that may
create “inconsistency” that would be “arbitrary and
capricious.” Encino Motorcars, LLC v. Navarro, 579
33
U.S. 211, 222 (2016) (citation and internal quotation
marks omitted). A locally applicable action therefore
does not become national simply because it “applies a
broad regulation to a specific context and … may set a
precedent for future [state implementation plan]
proceedings.” Am. Rd. & Transp. Builders Ass’n, 705
F.3d at 456. And because Congress provided an
exception whereby locally applicable actions are
reviewed in the D.C. Circuit if “based on a
determination of nationwide scope and effect,” EPA’s
invocation of nationwide standards in the applicability
inquiry “would unravel this layered scheme” by
requiring courts to “look[] to an action’s justification at
the start to decide whether the action is national or
local.” Kentucky, 2024 WL 5001991, at *10.
EPA’s actions on the state plans below confirms
its application of common standards does not render
those actions nationally applicable. EPA applied the
same legal principles and methodology to both the
state plan approvals and the disapprovals. Compare
87 Fed. Reg. at 9,480 (explaining in its proposed
approval of Iowa’s state plan that “EPA proposes to
apply a consistent set of policy judgments across all
states for purposes of evaluating … the approvability
of” state plans), with 87 Fed. Reg. at 9,801 (same
language in the proposed disapprovals for Arkansas,
Louisiana, Oklahoma, and Texas state plans). But
EPA conceded that each state plan approval was a
locally or regionally applicable action. See supra 9.
Applying the same statutory interpretation and
methodology in the state plan disapprovals therefore
cannot justify treating those disapprovals as
34
nationally applicable. And, in fact, EPA admitted at
the certiorari stage that “EPA’s use of a national
standard” is not sufficient to render an action
nationally applicable. Cert. Resp. 16-17.
The contents of the state plans that EPA
disapproved here also confirm their local applicability.
Each State submitted a separate plan. Supra 7-9. The
plans differed in significant ways. Most importantly,
each focused on the emissions sources within the State
and how, if at all, they contributed to a handful of
other States. Those state-specific evaluations also
differed in mode of analysis. For instance, Texas
conducted its own air-quality modeling, rather than
relying on EPA’s nationwide modeling. Oklahoma
relied on Texas’s region-specific modeling. J.A.13a14a. Oklahoma likewise conducted a source- and
Oklahoma-specific weight-of-the-evidence analysis of
its future emissions. J.A.21a-26a. And while Utah
used EPA’s modeling, Utah applied a weight-ofevidence approach to assess contributions to Colorado
or other downwind States. J.A.42a-57a.
EPA’s review of the state plans was also locally
and regionally focused. The proposed disapprovals
were reviewed by EPA’s regional offices and signed by
regional EPA administrators. See, e.g., 87 Fed. Reg. at
9,835. Many proposed disapprovals covered only a
single State. Supra 9. When EPA combined several
proposed disapprovals in a single proposed action, it
grouped the state plans by EPA region. Supra 9-10. In
the proposed and final rulemakings, EPA evaluated
“the
contents
of
each
individual
state’s
submission … on their own merits” and in separate
35
subsections. 88 Fed. Reg. at 9,354-61; see also 87 Fed.
Reg. at 9,816-24 (discussing Oklahoma’s plan
separately from Louisiana’s, Arkansas’s, or Texas’s
plans). EPA considered and rejected the state-specific
reasoning within each State’s plan. For instance, EPA
rejected Oklahoma’s alternative approach to
calculating whether a downwind “receptor” was likely
to struggle to “maintain[]” attainment with the
NAAQS. 88 Fed. Reg. at 9,359. EPA likewise rejected
Utah’s arguments about why “certain receptors in
Colorado should not be counted as receptors” as
“insufficient” and found “technical and legal flaws in
the State’s arguments related to relative contribution,
international and non-anthropogenic emissions, and
the relationship of upwind versus downwind-state
responsibilities.” Id. at 9,360. Finally, EPA codified
each state plan disapproval in separate subparts of the
Code of Federal Regulations. Id. at 9,381-84.
Regardless, determining where an action
“applies” ought not require this kind of detailed
inquiry. Courts have repeatedly rejected an
interpretation of Section 7607(b)(1) that turns on the
action’s “practical effects,” Am. Rd. & Transp.
Builders Ass’n, 705 F.3d at 456, rather than its “legal
effect,” Calumet Shreveport Refin., LLC v. EPA, 86
F.4th 1121, 1131 (5th Cir. 2023). That is in part
because a focus on the “de facto scope of the
regulation” raises “complex factual and line-drawing
problems.” Nat. Res. Def. Council, Inc. v. Thomas, 838
F.2d 1224, 1249 (D.C. Cir. 1988). Section 7607(b)(1)
requires courts to “analyz[e] the nature of EPA’s
action,” instead of the practical effects of the
36
rulemaking or the “specifics of the petitioner’s
grievance.” RMS of Ga., LLC v. EPA, 64 F.4th 1368,
1372 (11th Cir. 2023). Under the text of Section 7607,
the nature of EPA’s action is governed by the statutory
provision under which EPA is exercising authority,
not by the contents of the preamble EPA published in
taking that action.
The Tenth Circuit’s rule requiring courts to
scrutinize the particularities of EPA’s analysis, rather
than merely identify the statutory authority being
exercised, produces the same “complex factual and
line-drawing problems” as other rejected methods of
applying Section 7607. Thomas, 838 F.2d at 1249.
EPA rulemakings can be immensely technical. A
requirement for courts to analyze at the threshold of
every case whether EPA’s reasoning across several
actions was “uniform” or applied “in a consistent
manner”
will
squander
judicial
resources.
Pet.App.12a-13a. Nor does the Tenth Circuit’s rule
clarify the extent to which EPA’s reasoning must be
based on uniform statutory interpretation and
common analytical methods. EPA has never argued
that its state plan disapprovals were entirely based on
common reasoning. See supra 10-11 (noting EPA’s
analysis
of
state-specific
reasoning
in
its
disapprovals). If any reliance on uniform statutory
interpretation is enough, no EPA action would be
locally applicable. But neither the Tenth Circuit nor
EPA identified where to draw that line. And because
venue for most challenges will be determined by the
challenged action’s applicability, the Tenth Circuit’s
37
interpretation would greatly complicate most venue
determinations under Section 7607(b)(1).
3. The Tenth Circuit also implicitly held that no
EPA action is categorically reviewable in the regional
circuits even if specifically enumerated in Section
7607(b)(1)’s list of actions reviewable in the regional
circuits. Rather, focusing on the catchall phrase “any
other final action … which is locally or regionally
applicable,” the Tenth Circuit reasoned in a footnote
that petitioners challenging enumerated examples of
actions reviewable in the regional circuit must prove
the “approval, promulgation, denial, or disapproval is
locally or regionally applicable.” Pet.App.11a-12a n.5
(emphasis added). It thus rendered meaningless the
statute’s specific reference to implementation plan
approvals and disapprovals, which is a strong, if not
definitive, indication that the actions challenged here
are locally or regionally applicable. See supra 26-28.
The Tenth Circuit’s reading violates bedrock
principles of statutory interpretation. For one, the
Tenth Circuit’s view renders the enumerated
examples in Section 7607(b)(1) superfluous.
The Tenth Circuit’s interpretation also conflicts
with how Congress amended the statute. The 1970
version of the statute did not include the phrase
“which is locally or regionally applicable.” Rather,
Congress simply designated the venue for certain
challenges—including EPA’s “action in approving or
promulgating any implementation plan under section
110”—in the “appropriate circuit” rather than the D.C.
Circuit. See Pub. L. 91-604 (Dec. 31, 1970). The venue
analysis under the 1970 version of the statute thus
38
turned solely on whether the action under review was
listed in Section 7607(b)(1). The addition of a catchall
in the August 1977 amendment did not narrow the
scope of the existing categorical provisions. Congress
instead expanded the ambit of Section 7607(b)(1) by
“add[ing] to the list of locally or regionally applicable
actions” the catchall. Harrison, 446 U.S. at 584.
The last-antecedent canon confirms this
interpretation. Under that canon, “a limiting clause or
phrase” should “ordinarily be read as modifying only
the noun or phrase that it immediately follows,”
absent “other indicia of meaning” overriding that
presumption. Barnhart v. Thomas, 540 U.S. 20, 26
(2003). Here, the phrase “which is locally or regionally
applicable” modifies “or any other final action of” EPA.
That interpretation “reflects the basic intuition that
when a modifier appears at the end of a list,” it applies
“only to the item directly before it.” Lockhart v. United
States, 577 U.S. 347, 351 (2016). That is doubly true
where applying the modifier to the rest of the list
would run “headlong into the rule against
superfluity.” Id. at 356.
*
*
*
Ultimately, the Section 7607(b)(1) venue analysis
should not, and does not, turn on the Tenth Circuit’s
arbitrary and atextual distinctions. Neither EPA’s
amalgamation of multiple locally applicable actions
into a single Federal Register notice nor its reliance on
common statutory interpretation and reasoning
changes the statutory authority underlying EPA’s
action. The interpretation advanced by EPA and
accepted by the Tenth Circuit ignores: (1) the text of
39
Section 7607 categorically listing venue for actions
based on the statutory authority exercised; (2) the text
of Section 7410 delineating EPA’s state-by-state
authority to review each State’s plan; (3) the listing of
state
implementation
plan
approvals
and
disapprovals in the regional circuit review provision;
(4) the statutory history; and (5) the state-specific
nature of implementation plans under the statute,
including the ones by Oklahoma and Utah here.
Because state implementation plans are locally
applicable, venue for Petitioners’ challenges lies in the
Tenth Circuit.
II. EPA’s disapprovals of Oklahoma’s and
Utah’s plans were not based on a
determination of nationwide scope or effect.
Section 7607(b)(1)’s general rule—that regional
circuits review challenges to locally or regionally
applicable actions—has a narrow exception. Petitions
for review of those actions must be filed in the D.C.
Circuit: “[1] if such action is based on a determination
of nationwide scope or effect and [2] if in taking such
action the Administrator finds and publishes that
such action is based on such a determination.”
§ 7607(b)(1).
The Tenth Circuit declined to address EPA’s
argument that this exception applies to Petitioners’
challenges. Pet.App.19 n.8. This Court should address
EPA’s argument and reject it.
EPA asserted that it based the disapprovals on
determinations of “nationwide scope or effect” for two
reasons. 88 Fed. Reg. at 9,380. First, EPA claimed that
it was “interpreting and applying” the Act’s Good
40
Neighbor Provision “based on a common core of
nationwide policy judgments and technical analysis
concerning the interstate transport of pollutants
throughout the continental U.S.” Id. Second, EPA
found that “national uniformity in judicial resolution
of any petitions for review is desirable” in order “to
eliminate the risk of inconsistent results for different
states” from different circuits. Id. at 9,381.
Neither of those rationales shows EPA’s
disapproval
“action[s]”
were
“based
on
a
determination of nationwide scope or effect.” Using a
common analytical framework to evaluate each State’s
plan, rather than arbitrarily evaluating each plan
differently, merely fulfills EPA’s baseline requirement
of reasoned agency decision making. That framework
was not the “determination” on which EPA “based” its
disapprovals. After all, EPA’s state plan approvals
also used EPA’s common analytical framework.
And EPA’s desire to avoid potentially inconsistent
results in other circuits speaks only to EPA’s
disagreement with the choices Congress made in
dividing judicial review of Clean Air Act actions
among different courts of appeals. EPA’s view that
D.C. Circuit review is “desirable” does not somehow
turn the disapprovals into actions “based on a
determination of nationwide scope or effect.”
A. Section 7607(b)(1)’s exception applies
only when the core or ultimate
justification for EPA’s action is
nationwide in scope or effect.
Under Section 7607(b)(1), EPA’s ultimate reasons
for disapproving each Good Neighbor plan must be of
41
“nationwide” “scope or effect” for EPA to lawfully
invoke the venue provision’s exception. § 7607(b)(1).
Because the Court is interpreting a “savings clause
[that] is an exception[,]” it “must be read ‘narrowly in
order to preserve the primary operation of the
provision.’” Garland v. Gonzalez, 596 U.S. 543, 555 n.6
(2022); Cuomo v. Clearing House Ass’n, LLC, 557 U.S.
519, 530 (2009) (exceptions should not be interpreted
to “swallow the rule”).
With that interpretive principle in mind, the
ordinary meaning of the text establishes that an
action is “based on” a “nationwide” “determination” if
the “relevant determinations … lie at the core of
the agency action” and have scope or effect
“throughout [the] whole nation.” Texas 2016, 829 F.3d
at 419 & n.22.
Start with the word “determination.” As the Fifth
Circuit explained, the relevant “determination[s]”
under the exception “are the justifications the agency
gives for the action and they can be found in the
agency’s explanation of its action.” Id. at 419; see also
West Virginia, 90 F.4th at 329 (“[V]enue turns on the
EPA’s
reasons
for
determining
that
[an
implementation plan] was insufficient.”). In this
context, the word “determination” requires courts to
“ask whether the ultimate decision underlying the
EPA’s ‘final action’ has a ‘nationwide scope or effect,’”
rather than “each preliminary step on the road to that
decision.” Kentucky, 2024 WL 5001991, at *11;
Determination, The Merriam-Webster Dictionary 202
(1974) (“the decision or conclusion reached”).
42
Next, “[b]ecause the statute speaks of the
determinations the action ‘is based on,’ the relevant
determinations are those that lie at the core of the
agency action.” Texas 2016, 829 F.3d at 419. That is,
the Court must examine EPA’s central justifications
for taking the action under review. Because the action
must be “based on” those determinations, “peripheral
or extraneous” determinations are not enough. Id.
Rather, the phrase “based on” requires that the
determination form gravamen of the action. OBB
Personenverkehr AG v. Sachs, 577 U.S. 27, 33-34
(2015) (explaining that the term “based upon” requires
looking at the “basis,” “foundation,” or “gravamen” of
the action (citation omitted)); see also Based, The
Merriam-Webster Dictionary 71 (1974) (“to form or
serve as a base for”). Courts thus often identify “EPA’s
factual conclusions or expertise” underlying the
challenged action. Texas 2016, 829 F.3d at 422.
Once a court has identified the ultimate
justification on which the action is founded, the
question becomes whether that determination has
“nationwide scope or effect.” § 7607(b)(1). A
determination’s “scope” relates to “[t]he area covered.”
Texas 2016, 829 F.3d. at 420 n.20; Scope, The
Merriam-Webster Dictionary 621 (1974) (“extent
covered”). A determination’s “effect” is the “result”
“brought about by” the determination. Texas 2016, 829
F.3d. at 420 n.21; Effect, The Merriam-Webster
Dictionary 232 (1974) (defining “effect” as “result” and
“the quality or state of being operative”). And, of
course, “nationwide” means “[t]hroughout a whole
nation.” Texas 2016, 829 F.3d. at 420 n.22;
43
Nationwide, The Merriam-Webster Dictionary 466
(1974) (defining “nationwide” as “extending
throughout a nation”). In short, the phrase
“nationwide scope or effect” “reaches EPA decisions
that apply to the entire country as a legal matter (de
jure) or as a practical one (de facto).” Kentucky, 2024
WL 5001991, at *12.
Section 7607(b)(1)’s exception thus requires that
the ultimate justifications on which EPA’s locally or
regionally applicable action is based must cover the
entire country or necessarily result in consequences
throughout the whole nation. Anything less and the
action would not be “based on” a “determination” of
“nationwide scope or effect.” See West Virginia, 90
F.4th at 328 (“A determination would be national in
scope and effect if it addressed and analyzed
circumstances common to all regions in the Nation.”);
Kentucky, WL 5001991, at *12 (“[A] determination
might have a nationwide ‘scope’ if its formal ‘area’ of
operation covers the country[,] … [a]nd it might have
a nationwide ‘effect’ if its ‘operative influence’ is felt
everywhere.” (citations to dictionaries omitted)); see
also Am. Rd. & Transp. Builders Ass’n, 705 F.3d at
456 (“Nothing in the California [state implementation
plan] approval contemplated nationwide scope or
effect, … [where its reasoning] could be lawfully
applied ‘only to certain development projects within
the geographic jurisdiction covered.’” (citation
omitted)); H.R. Rep. 95-294 at 324 n.20 (1977)
(referencing 41 Fed. Reg. 56,767, 56,768-69 (Dec. 30,
1976) (explaining the text of the venue provision
“should be amended to provide that where ‘national
44
issues’ are involved they should be reviewed in the
D.C. Circuit.”)). An action is not based on
determinations of nationwide scope or effect if the
action turns on unique facts about a State or
particular geographic region.
B. EPA’s actions disapproving Oklahoma’s
and Utah’s plans were not based on
determinations of nationwide scope or
effect.
Here, EPA’s actions to disapprove Oklahoma’s
and Utah’s state plans were based on determinations
of facts specific to each State. Those determinations
had consequences specific and unique to each State
and the regulated sources within each State’s borders,
not to the nation as a whole. So, EPA’s effort to invoke
Section 7607(b)(1)’s exception to funnel these state
implementation plan disapprovals to the D.C. Circuit
must fail.
Yet, when invoking Section 7607(b)(1)’s exception,
EPA ignored its own state-by-state inquiries and
instead argued its use of a 4-step analytical
framework, reference to national emissions modeling,
and desire to avoid inconsistencies satisfy the
“nationwide scope or effect” requirement. 88 Fed. Reg.
at 9,380-81. But these aspects of EPA’s
decisionmaking process do not constitute the
determinations on which EPA’s decision to approve or
disapprove specific state plans was based. EPA
considered these factors in its state plan approvals
and disapprovals alike. The core findings that made
the difference as to whether any given plan was
approved or disapproved rested on findings unique to
45
each State’s submission. Because the determinations
EPA’s actions were ultimately “based on” are statespecific, they are not nationwide in scope or effect.
1.
EPA’s determinations were based on
state-specific facts and circumstances.
The determinations on which EPA based its
approval or disapproval of each State’s plan were
specific to each particular state plan and the facts
specific to the emissions within the respective States
or regions. The disapprovals therefore were not “based
on a determination of nationwide scope or effect.”
§ 7607(b)(1).
When EPA approves or disapproves state plans,
those actions will almost always be “based on”
determinations of local scope and effect. As explained,
the statute requires EPA’s review of state plans to be
state-specific. See supra 23-24. States enjoy “wide
discretion” and “considerable latitude” in crafting
their implementation plans. Union Elec. Co., 427 U.S.
at 250; Train, 421 U.S. at 87. Congress delegated to
States, not EPA, the power to make “legislative
choices in regulating air pollution.” Union Elec. Co.,
427 U.S. at 269. Although EPA may voice a “preferred
approach” for state plans, it may not erase State
discretion by insisting on its preference. Train, 421
U.S. at 69. A State’s development and EPA’s review of
a state plan also involves “a number of intensely
factual determinations” about the “particularities of
the emissions sources” in the State and other local
conditions. Texas 2016, 829 F.3d at 421; Kentucky,
2024 WL 5001991, at *12 (EPA, in the same Federal
46
Register notice as the actions in this case, rejected
Kentucky’s
Good
Neighbor
plan
“due
to
‘circumstances … unique’ to that plan” (citation
omitted)). So when EPA chooses to disapprove a
State’s plan, it almost always must be for reasons
specific to that State’s facts or choices rather than a
one-size-fits-all imposition infringing on statutorily
protected state discretion. See 41 Fed. Reg. at 56,76869 (Administrative Conference of the United States
recommendation) (actions on state plans “usually
involve issues peculiar to the affected States”).
To be sure, occasionally an EPA action with
respect to States may involve “generic determinations
of nationwide scope or effect.” Id. at 56,767-68. For
example, when EPA is “promulgat[ing] … generic
regulations (applicable to all States) that require
prevention of significant deterioration of air quality,”
the action is based on determinations of nationwide
scope or effect. Id. at 56,769 (citation omitted). “As
with national standards, 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 geographic regions.” Id. at 56,769 n.2. An
agency decision to publish multiple, discrete final
actions in a single notice does not, however, change
the scope of the relevant determinations. The scope of
the notice itself does not matter because it “improperly
focuses on the nature of the rule as a whole and not on
the determinations on which [each action] is based.”
Texas 2016, 829 F.3d at 422.
47
True to form, EPA’s disapprovals here each
involved state-specific analysis and reasoning.
Consider Oklahoma’s state plan. Air quality models
projected emissions sources in Oklahoma would
contribute to ozone downwind, and those
contributions to downwind States are different from
any other State. Oklahoma analyzed those statespecific projections using region-specific modeling
prepared by Texas, not EPA’s national modeling.
Oklahoma concluded it would not “significantly”
contribute to any downwind State, based in part on
Oklahoma’s recent history of significantly reducing
emissions, thus satisfying its Good Neighbor
obligations. J.A.23a-24a, 26a.
EPA disapproved Oklahoma’s plan “[b]ecause” it
concluded Oklahoma failed to correctly “analyze
emissions from the sources and other emissions
activity from within the State to determine whether
its contributions [to downwind States] were
significant.” 87 Fed. Reg. at 9,823-24. EPA pointed
specifically
to
Oklahoma’s
projected
ozone
“contribution [of] 1.01 ppb to Denton County, Texas.”
88 Fed. Reg. at 9,359. It likewise rejected Oklahoma’s
reliance on alternative air quality modeling and
Oklahoma’s approach to calculating whether a
downwind “receptor” was likely to struggle to
“maintain[]” attainment with the NAAQS. Id.; 87 Fed.
Reg. at 9,823-24. EPA’s ultimate reason for
disapproving Oklahoma’s plan thus constituted a
state-specific, factual determinations.
Utah’s Good Neighbor plan was no less statespecific. Utah’s state plan identified areas around
48
Denver to which Utah contributes more than 1% of the
2015 Ozone NAAQS of 70 ppb. J.A.40a. Utah
identified five locations in Colorado where individual
contributions from Utah ranged between 0.83 ppb and
1.23 ppb. J.A.40a. Utah then applied a weight-ofevidence approach to assess whether under the
conditions specific to Utah and Colorado, Utah
contributed “significantly” to nonattainment or
“interfere[ed] with” maintenance in downwind States.
J.A.42a-57a.
Utah concluded that those contributions to
downwind States were not significant. Utah based
that conclusion in part on the differences between
projected contributions by Utah compared to other
states. Utah explained that in Eastern States, total
contributions from the cumulative impact of upwind
States are very high; Utah cited Connecticut as an
example, noting that it received a collective upwind
contribution of 44.24 ppb, which is 12 times greater
than the sources of air pollution from within
Connecticut. J.A.47a. By contrast, the dynamic in the
West is flipped, and in-state contributions are much
more significant than the total contribution from
upwind States. J.A.49a. In Colorado, the highest
collective upwind contribution at relevant areas was
7.06 ppb, while in-state contributions for that same
area were 25.52 ppb. J.A.49a. Utah also pointed to the
ozone contributions from international emissions,
wildfires, and biogenic emissions, which contributed
much more ozone “compared to those modeled as
coming from Utah.” J.A.49a-51a. Indeed, biogenic
emissions (natural sources of emissions) alone
49
contribute between 4.19 ppb and 5.71 ppb to Colorado
receptors, while Utah contributes one-quarter of this
amount. J.A.49a.
Based on this weight-of-evidence approach,
considering all factors taken together, Utah concluded
that contributions to downwind air quality are not
significant and additional emission reductions are not
necessary. J.A.57a. The State also analyzed the
substantial emission reductions between 2011 and
2017 that resulted from enforceable permit and
regulatory requirements, as well as additional
controls included in the plan for the Salt Lake City
area and updated rules for oil and gas sources.
J.A.51a-57a. These data showed that emissions from
Utah were decreasing and would continue to decrease.
EPA’s reasons for disapproving Utah’s proposed
plan were that (1) “Utah is projected to be linked above
1 percent of the NAAQS to three nonattainment
receptors
and
one
maintenance-only
receptor … [located in] Colorado”; (2) “the State
included an insufficient evaluation of additional
emissions control opportunities”; (3) there were
“technical and legal flaws in the State’s arguments
related to relative contribution, international and
non-anthropogenic emissions, and the relationship of
upwind versus downwind-state responsibilities”;
(4) “several anticipated controls identified by Utah
were included in the [later modeling performed by
EPA], and yet Utah was still linked in that modeling”;
and (5) Utah’s Western-specific arguments supporting
its submission were unconvincing. 88 Fed. Reg. at
9,360. These could not be more local determinations.
50
Oklahoma and Utah are not outliers. Every
State’s Good Neighbor plan was unique and therefore
the determinations at the core of EPA’s decisions on
the States’ plans varied. For instance, California’s
plan included an analysis focused on state-specific
impacts related to the geography, meteorology, and
wildfires as well as local, international, and nonanthropogenic emissions. Id. at 9,355. It also “argued
that it had already implemented all cost-effective
controls” and “that interstate transport is
fundamentally different in the western U.S. than in
the eastern U.S.” Id.
EPA ultimately rejected California’s plan because
it presented “an insufficient evaluation of additional
control opportunities” as well as “technical and legal
flaws in California’s geographic, meteorological,
wildfire, and trajectories analysis, and the State’s
arguments related to local, international, and nonanthropogenic emissions.” Id. In contrast, EPA
approved Idaho’s plan because “the impacts from
emissions from sources in Idaho will not exceed a
contribution threshold of 1 percent of the 2015 ozone
NAAQS to any downwind nonattainment and
maintenance sites,” in part because “annual total
[ozone precursor] emissions have declined” as a result
of “reductions in emissions from onroad and nonroad
vehicles” in Idaho. 85 Fed. Reg. 65,722, 65,724-25 (Oct.
16, 2020).
Because EPA’s disapprovals or approvals of each
State’s Good Neighbor plan were based on a review of
the specific facts and merits of that plan, EPA’s core
51
justifications for its actions did not have nationwide
scope or effect.
2.
EPA’s actions were not based on its
preference for a uniform policybased framework.
EPA asserted that it made and relied on several
nationwide determinations. But none of those
purported determinations constitute “the reason the
agency [took] the action” that it did. Texas 2016, 829
F.3d at 419; West Virginia, 90 F.4th at 329 (“venue
turns on the EPA’s reasons for determining that West
Virginia’s [Good Neighbor plan] was insufficient”).
They are not the “ultimate decision” upon which the
actions to disapprove Oklahoma’s and Utah’s plans
were based. Kentucky, 2024 WL 5001991, at *12.
First, EPA relies principally on its use of a
“nationally consistent 4-step interstate transport
framework for assessing obligations for the 2015 ozone
NAAQS.” 88 Fed. Reg. at 9,380. But that framework
simply “provide[s] a reasonable organization to the
analysis of the complex air quality challenge of
interstate ozone transport.” Id. at 9,338. The
framework is not mandated by the Clean Air Act,
codified in any regulation, or otherwise required by
EPA. See id. at 9,375 (“EPA does not direct states to
use a particular framework”). EPA in fact told States
that they were free to “develop alternative frameworks
to evaluate interstate transport obligations in their
state plans.” No. 23-9514 (10th Cir.), J.A.107; see also
88 Fed. Reg. at 9,338 (explaining that “states have
some flexibility in developing analytical methods
within this framework (and may also attempt to
52
justify an alternative framework altogether)”). EPA
thus confirmed it would judge the appropriateness of
the State’s chosen framework “in light of the facts and
circumstances of each particular state’s submission,”
88 Fed. Reg. at 9,340, as the statute requires, supra
23-24.
EPA’s 4-step framework organized EPA’s
analysis, but it did not in itself constitute the core
justification for the denial of Oklahoma’s or Utah’s
proposed plans. Indeed, EPA’s reference to a common
analytical framework is not a “determination” at all.
Kentucky, 2024 WL 5001991, at *11-12. EPA applied
the same 4-step framework to analyze each state plan
it reviewed. But, once again, EPA approved some
plans and disapproved others using the same
framework. EPA’s “reason[s]” for approving or
disapproving a given state plan thus necessarily
depended on state-specific facts and considerations.
Texas 2016, 829 F.3d at 419; Kentucky, 2024 WL
5001991, at *11-12.
In short, EPA’s 4-step framework did not dictate
the outcome of any disapproval decision because EPA
rightly admitted it was non-binding. Nor could the
framework have been the determination on which its
decision to disapprove was based because both
approval and disapproval actions used the 4-step
framework—proving
that
state-specific
determinations were the ultimate bases for EPA’s
actions.
Second, EPA contended that it made a nationwide
determination when it relied on “the results from
nationwide photochemical grid modeling.” 88 Fed.
53
Reg. at 9,381; see also id. at 9,338-39 (describing this
modeling). But EPA also made clear that States could
rely on alternate methodologies for modeling
emissions, including relying on modeling conducted by
other States, which might better incorporate statespecific information and data. No. 23-9514 (10th Cir.),
J.A.68, 73-74. Some States, like Utah, analyzed their
future contributions to downwind States by reference
to EPA’s modeling and data. J.A.37a-39a. But others,
like Texas and Oklahoma, relied on non-EPA
modeling designed to more accurately project future
emissions and air quality levels in surrounding States.
J.A.13a-14a. In rejecting state plans that relied on
region-specific modeling, EPA necessarily made
intensely factual state-specific determinations.
Regardless, EPA’s choice to conduct nationwide
modeling was not the core justification on which its
decision to approve or disapprove any state plan was
based. As with the 4-step framework, EPA considered
its ozone modeling for every state plan it reviewed.
See, e.g., 87 Fed. Reg. at 9,478-80, 9,482-43; 87 Fed.
Reg. at 9,800, 9,822. But that modeling merely
identified specific local downwind sites to which an
upwind State might contribute ozone. See 88 Fed. Reg.
at 9,341-42. States (and EPA) then had to evaluate
whether those individual local projections amounted
to “significant[]” contributions from upwind States
based on the facts and circumstances of each State.
§ 7410(a)(2)(D)(i)(I). That was the core determination
that governed whether EPA approved or disapproved
a state plan.
54
Third, EPA claimed that it “evaluated each state’s
arguments for the use of alternative approaches or
alternative sets of data with an eye to ensuring
national consistency and avoiding inconsistent or
inequitable results” between upwind and downwind
States. 88 Fed. Reg. at 9,381. But that is no surprise.
As already explained, if EPA treats similarly situated
States inconsistently, it acts unlawfully. Supra 32-33.
The mere fact that it sought to avoid arbitrary
decision-making cannot be enough to make an action
nationwide in scope or effect.
3.
EPA’s desire to consolidate judicial
review does not constitute a
determination of nationwide scope
or effect.
Finally, EPA argued that any challenges to its
state plan disapprovals should be made in the D.C.
Circuit because “national uniformity in judicial
resolution of any petitions for review is desirable … to
eliminate the risk of inconsistent results for different
states.” 88 Fed. Reg. at 9,381. But EPA did not contend
that this desire for uniformity was a “determination”
on which EPA’s state plan disapprovals were based.
Section 7607(b)(1) therefore does not allow EPA to rely
on its desire for consolidated judicial review to
designate an action for review only in the D.C. Circuit.
Nor do EPA’s concerns about judicial review have
any validity. Each State is unique and each submitted
Good Neighbor plan was “evaluated on [its] own
merits.” 88 Fed. Reg. at 9,354. That is precisely why
Congress sent challenges to state plan approvals or
disapprovals to the regional circuits, the courts most
55
familiar with the facts and circumstances of the States
in their region.
Plan-by-plan judicial review may produce “[s]ome
variation,” but that is the “expected” operation of
Section 7607(b)(1). Texas 2016, 829 F.3d at 423.
“[I]ntercircuit conflicts in the application of EPA
policies caused by inconsistent judicial decisions are
inevitable because of the Act’s judicial review
provision in § 7607(b)(1).” Nat’l Envtl. Dev. Ass’n’s
Clean Air Project v. EPA, 891 F.3d 1041, 1050 (D.C.
Cir. 2018) (holding EPA reasonably and permissibly
interpreted
the
Act
to
allow
intercircuit
nonacquiescence). And there is “‘wisdom’ in ‘allowing
difficult issues to mature through full consideration’
by different courts.” Kentucky, 2024 WL 5001991, at
*10 (quoting E.I. du Pont de Nemours & Co. v. Train,
430 U.S. 112, 135 n.26 (1977)). Congress weighed the
possibility of conflicting judicial decisions and
determined that when the action is locally applicable
and not based on determinations of nationwide scope
or effect, the regional circuits should be the exclusive
venue regardless.
*
*
*
Because EPA’s action on each state plan rested on
justifications unique to each plan’s “own merits,”
regardless of any uniform approach that EPA sought
to use, EPA’s actions were not based on
determinations of nationwide scope or effect. EPA’s
reliance on Section 7607(b)(1)’s exception to regional
circuit review of EPA’s state implementation plan
decisions therefore fails.
56
CONCLUSION
The judgment of the court of appeals should be
reversed.
December 2024
Respectfully submitted,
SEAN D. REYES
GENTNER DRUMMOND
Attorney General
Attorney General
STANFORD E. PURSER
GARRY M. GASKINS, II
Solicitor General
Solicitor General
OFFICE OF THE UTAH
JENNIFER L. LEWIS
ATTORNEY GENERAL
Deputy Attorney General
Utah State Capitol Complex OKLAHOMA ATTORNEY
350 N. State Street,
GENERAL’S OFFICE
Suite 230
313 N.E. 21st Street
Salt Lake City, UT 84114 Oklahoma City, OK 73105
WILLIAM L. WEHRUM
MITHUN MANSINGHANI
WEHRUM ENVIRONMENTAL
Counsel of Record
LAW LLC
LEHOTSKY KELLER COHN LLP
1629 K Street, N.W.,
629 W. Main Street
Suite 300
Oklahoma City, OK 73102
Washington, D.C. 20006 (512) 693-8350
mithun@lkcfirm.com
Counsel for Petitioner
State of Utah
Counsel for Petitioners
State of Oklahoma and
Oklahoma Department
of Environmental Quality
57
EMILY C. SCHILLING
HOLLAND & HART LLP
222 S. Main Street,
Suite 2200
Salt Lake City, UT 84101
KRISTINA R. VAN BOCKERN
AARON B. TUCKER
HOLLAND & HART LLP
555 17th Street,
Suite 3200
Denver, CO 80202
Counsel for Petitioner
State of Utah
MICHAEL B. SCHON
DREW F. WALDBESER
LEHOTSKY KELLER COHN LLP
200 Massachusetts Avenue
N.W.
Washington, DC 20001
Counsel for Petitioners
State of Oklahoma and
Oklahoma Department
of Environmental Quality
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