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

No. 23-1067

IN THE

Supreme Court of the United States

_________

STATE OF OKLAHOMA, ET AL.,

Petitioners,

V.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

_________

On Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

_________

BRIEF OF U.S. SENATORS MIKE LEE, TED

BUDD, BILL CASSIDY, M.D., CYNTHIA

LUMMIS, AND ROGER MARSHALL AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

_________

JENNIFER L. MASCOTT*

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

COLUMBUS SCHOOL OF LAW

THE CATHOLIC UNIVERSITY OF AMERICA

3600 John McCormack Rd.

Washington, DC 20064

(202) 706-5488

mccotter@cua.edu

* Admitted in Virginia and Maryland;

supervised by D.C. bar member

i

TABLE OF CONTENTS

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

INTEREST OF THE AMICI CURIAE ........................ 1

SUMMARY OF THE ARGUMENT ............................. 2

ARGUMENT ................................................................ 3

I.

Section 7607(b)(1) Guarantees Regional

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

II.

SIP Decisions Are Quintessential Regional

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

III.

The Executive Cannot Evade Regional

Review through Wordplay and Labels.............. 7

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

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

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

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

ATK Launch Sys., Inc. v. EPA,

651 F.3d 1194 (10th Cir. 2011) ................................ 6

Clarian Health W., LLC v. Burwell,

206 F. Supp. 3d 393 (D.D.C. 2016) .......................... 8

Columbia Broad. Sys. v. United States,

316 U.S. 407 (1942) .................................................. 8

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ................................................ 10

Gen. Motors Corp. v. United States,

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

Mark v. Republic of the Sudan,

77 F.4th 892 (D.C. Cir. 2023) .................................. 9

Sheldon v. Sill,

49 U.S. 441 (1850) .................................................... 9

Sierra Club v. EPA,

47 F.4th 738 (D.C. Cir. 2022) .................................. 6

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ................................ 4, 8

Texas v. EPA,

983 F.3d 826 (5th Cir. 2020) ................................ 4, 8

iii

Texas v. EPA,

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

Cir. 2023) .............................................................. 6, 9

Train v. Nat. Res. Def. Council,

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

Travis v. United States,

364 U.S. 631 (1961) ................................................ 10

West Virginia. v. EPA,

90 F.4th 323 (4th Cir. 2024) .................................... 9

Statutes

8 U.S.C. § 1226a(b)(3) ................................................... 5

28 U.S.C. § 44(c) ............................................................ 5

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

33 U.S.C. § 1369(b)(1) ................................................... 5

42 U.S.C. § 7607(b)(1) ......................................3, 6, 9, 10

1

INTEREST OF THE AMICI CURIAE1

Amici curiae are United States Senators Mike Lee

(UT), Ted Budd (NC), Bill Cassidy, M.D. (LA),

Cynthia Lummis (WY), and Roger Marshall (KS). As

Senators, they have a strong interest in the federal

courts correctly interpreting and preserving the

federalism-focused judicial review scheme that

Congress fashioned in the Clean Air Act to ensure that

disputes over EPA’s regional actions will be heard by

the regional circuit courts, not funneled to the faraway and insular D.C. Circuit.

Indeed, the Tenth Circuit’s decision blessing the

Executive’s wordplay gerrymandering to escape the

plain language of the Clean Air Act’s venue provision

works to undermine the separation of powers and

Congress’s role in determining where actions may be

filed. This Court should reject the outlier decision

below.

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

part, and no entity or person, aside from the amici curiae and

their counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

There are a lot of hard Clean Air Act cases. This is

not one. The CAA’s venue provision states, in essence,

that a nationwide action should go to the D.C. Circuit,

but a regional action should go to the region’s court of

appeals. And all agree that the paradigmatic example

of a regional action is the EPA’s approval or denial of

a state implementation plan. Unsurprisingly, every

court of appeals had uniformly held that judicial

review over SIP decisions must go to the applicable

regional circuit court—not the D.C. Circuit.

That is until the decision below. Here, the Tenth

Circuit held that the SIP decisions at issue must go to

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

announcement of the proposed region-by-region

actions within a single Federal Register notice—thus

making them superficially “national.” That is so even

though the legal review—a fact-heavy inquiry

requiring individual, region-by-region analysis of each

SIP decision—remains the same as if the EPA had

announced its decisions one-by-one.

The Tenth Circuit’s decision is egregiously wrong.

Text, purpose, and precedent all confirm what

common sense would compel: The CAA’s venue

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

allow the EPA to pick its chosen forum based on how

the agency chooses to package its Federal Register

notices.

This Court should reverse. The Tenth Circuit’s

decision broke from a circuit consensus, and its outlier

position

promises

serious

and

immediate

repercussions, both in practice and for federalism.

3

At bottom, the Act is designed so that States will

be able to have their SIP decisions reviewed within

their regional circuits, composed of judges who know

that area, and who have more localized expertise. But

as the Tenth Circuit would have it, States would need

to schlep to D.C. to litigate these cases in the EPA’s

backyard whenever that agency chooses to bundle

multiple such decisions together. That makes no

sense—and it is not the scheme that Congress wrote.

ARGUMENT

I.

Section 7607(b)(1) Guarantees Regional

Review of Regional Decisions.

The Clean Air Act divides judicial review of EPA

actions into one of two general categories: Actions that

are either nationally applicable or of nationwide effect

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

lacking true nationwide effect—go to the circuit for

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

This venue rule reflects the federalism principles

core to the CAA’s longstanding judicial review scheme

and its cooperative federalist regulatory function. The

Act is a “comprehensive national program that made

the States and the Federal Government partners in

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

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

of that arrangement, the “Act envisions extensive

cooperation between federal and state authorities.”

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

(2011). The CAA thus assigns certain decisions—

those bearing on the whole country—to the federal

government, while reserving those that turn more on

local expertise to the States, in the first instance. For

4

example, and as especially relevant here, the Act

“relegate[s]” the federal government to a “secondary

role” over specific decisions about the “prevention and

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

of decision has traditionally been the “primary

responsibility of States and local governments.” Train

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

The Act’s venue provision tracks this division of

responsibility. “All nationally applicable actions go to

the D.C. Circuit, which promotes national

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

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

court to apply a single understanding of the law to a

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

regionally applicable actions that are based on local

and regional determinations go to the regional

circuits, which promotes responsiveness and attention

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

action lacks a nationwide effect, courts from the

communities that will actually bear the consequences

of the EPA’s decision are assigned by Congress to

assess its lawfulness.

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

only one meaning, of course, how its standards cash

out on the ground are often fact-intensive inquiries.

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

2016). Those sorts of inquiries should be evaluated by

voisinage judges who are familiar with the lands,

businesses, and people being regulated—as opposed to

judges reading about (or discovering) the Mountain

West, the Deep South, or Rust Belt from hundreds or

thousands of miles away. More, as touched on above,

these types of actions often involve federal regulation

5

of traditional State prerogatives, such as

administering and overseeing air quality. Congress

believed that it was important for political buy-in and

accountability that the States have a hand in the

judges supervising those delicate decisions. Cf. 28

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

circuit judge in regular active service appointed from

the residents of each state in that circuit”).

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

conscious policy decision to guarantee regional review

of regional decisions. After all, Congress knows how to

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

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

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

the opposite—including in analogous statutory

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

CAA, Congress struck a balance, centralizing review

for truly federal actions, and decentralizing review

over regional decisions.

II.

SIP

Decisions

Are

Regional Decisions.

Quintessential

The CAA is often complicated. And the line

between what is national and what is regional is not

necessarily always crystal clear in every case. But

none of those uncertainties are present here: This case

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

state implementation plans—the quintessential

regional decision.

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

“EPA’s action in approving or promulgating any

implementation plan is the prototypical locally or

regionally applicable action that may be challenged

6

only in the appropriate regional court of appeals.” Am.

Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453,

455 (D.C. Cir. 2013) (internal citations omitted);

accord Sierra Club v. EPA, 47 F.4th 738, 743 (D.C.

Cir. 2022) (Srinivasan, C.J.). Or as the Tenth Circuit

put it, in a decision joined by then-Judge Gorsuch: The

EPA’s decision to approve or reject a SIP is an

“undisputably regional action,” because it is “purely

local.” ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194,

1199 (10th Cir. 2011).

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

vast majority of actions involving SIPs are necessarily

about individual States.” Texas v. EPA, No. 23-60069,

2023 WL 7204840, at *4 (5th Cir. 2023). Or in slightly

blunter terms: “[T]he State Implementation Plans, of

course, primarily involve individual States.” Id. at *5;

see also id. (“SIP disapprovals are usually highly factbound and particular to the individual State.”

(internal markings omitted)).

SIP approvals or rejections like the ones at issue

are thus the precise sorts of actions that are supposed

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

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

the Administrator’s action in approving or

promulgating any implementation plan under section

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

“may be filed only in the United States Court of

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

§ 7607(b)(1).2

2 As Petitioners explained in their cert petition (at 31-32), the

Tenth Circuit simply blew past this language, reasoning that it

applied only to SIP decisions that were “locally or regionally

7

In short, every single tool of interpretation—text,

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

here: SIP decisions are reviewed by regional circuits.

III.

The Executive Cannot Evade Regional

Review through Wordplay and Labels.

Congress thus made a deliberate choice for SIP

decisions to go to the regional circuits. This case asks

whether that rule goes out the window when the EPA

decides to bundle those decisions within a single

Federal Register notice. The answer is obviously no.

The whole point of a venue provision like the one

here—one that assigns specific actions to specific

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

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

litigants. Truly, the only function of a provision like

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

the hands of individual parties and codify what

Congress has decided is the proper forum for a given

matter.

The Tenth Circuit’s position destroys this function.

On its logic, the federal government can now forum

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

regional court, it will issue a standalone SIP decision;

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

applicable.” Not so. The court focused on the provision’s catchall—“any other final action of the Administrator under this

chapter … which is locally or regionally applicable”—and

plucked a portion of it to limit the preceding terms, in square

violation of the rule of the last antecedent. Rather, the catch-all

picks up items in addition to those expressly provided before—

and Congress made express that petitions reviewing SIP

decisions like those here must go only to the regional circuits.

8

bundle a few SIP decisions—and presto, it is a

“nationally applicable” action.

No rational Congress would craft a venue

provision in this directionless fashion—and no

Congress did. As touched on above, the reason

Congress wanted to direct SIP decisions to regional

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

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

835; see also Texas, 829 F.3d at 421 (discussing how

state plan approvals and disapprovals involve

“intensely factual determinations” specific to each

state). But in the Tenth Circuit’s view, Congress

wanted those fact-intensive decisions to be made by

regional circuits only when the EPA issues standalone

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

review when the EPA opted for an omnibus action.

That is nonsensical. Whether bundled within a single

Federal Register notice or issued seriatim, the judicial

review of those individual SIP decisions looks exactly

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

dependent inquiry no matter what. There is zero

cogent reason why Congress wanted the regional

circuits to review those decisions only when the EPA

issued one on its own.

Instead, Congress cared here about substance over

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

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

416 (1942). It is blackletter law under the APA, for

instance, that what matters is the substance of the

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

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

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

9

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

Fourth Circuit explained: “An action is local or

regional if it assesses and analyzes local or regional

circumstances

that

are

distinct

from

the

circumstances in other localities or regions and it

rules on those circumstances,” while a “determination

would be national in scope and effect if it addressed

and analyzed circumstances common to all regions in

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

(4th Cir. 2024). Whether an action is regional or

national does not turn on the label or the packaging.

Rather, it turns on the substance of the action—and it

is the substance of the action that determines what

part of § 7601(b)(1) applies. See, e.g., Texas, 2023 WL

7204840, at *4 (“Yes, the EPA packaged these

disapprovals together” but “the EPA’s chosen method

of publishing an action isn’t controlling. What controls

is the CAA. And the CAA is very clear.”).

More fundamentally, permitting the EPA to

gerrymander venue in this way would undermine the

separation of powers. One of the most important

authorities vested in Congress is its plenary authority

over the jurisdiction of the lower federal courts.

Sheldon v. Sill, 49 U.S. 441, 449 (1850); see also, e.g.,

Mark v. Republic of the Sudan, 77 F.4th 892, 896 (D.C.

Cir. 2023). Through § 7607(b)(1), Congress exercised

that constitutional structural prerogative. But the

effect of the Tenth Circuit’s decision is to hollow out

§ 7607(b)(1), and transfer determinations of venue

from Congress to the Executive. As explained, under

the Tenth Circuit’s decision, the EPA can now decide

for itself where it wants to litigate—the precise sort of

discretion that Congress wanted to eliminate here, in

10

guaranteeing regional judicial review over regional

EPA decisions. See, e.g., Travis v. United States, 364

U.S. 631, 634 (1961) (“[V]enue provisions in Acts of

Congress should not be so freely construed as to give

the Government the choice of ‘a tribunal favorite’ to

it.” (citation omitted)).

Finally, the Tenth Circuit’s decision cannot be

justified on the ground that the EPA’s decisions are

nationally applicable, because it applied a uniform

“analytical framework” or “generally consistent

approach” when it evaluated each State’s plan. That

logic would make every EPA action national, because

the EPA is already expected (indeed, commanded) to

apply federal standards in a consistent and uniform

way. See, e.g., Encino Motorcars, LLC v. Navarro, 579

U.S. 211, 222 (2016).

In short, the Tenth Circuit significantly erred with

weighty repercussions, both in practical terms and for

federalism. This Court ought to restore a single venue

rule across the country—and pick the one that

Congress clearly provided in § 7607(b)(1).

.

11

CONCLUSION

For the foregoing reasons, amici urge the Court to

reverse the decision below.

Respectfully submitted,

JENNIFER L. MASCOTT*

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

COLUMBUS SCHOOL OF LAW

THE CATHOLIC UNIVERSITY OF

AMERICA

3600 John McCormack Rd.

Washington, DC 20064

(202) 706-5488

mccotter@cua.edu

* Admitted in Virginia and

Maryland; supervised by D.C. bar

member

December 20, 2024