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

Nos. 23-1067 and 23-1068

In the Supreme Court of the United States

STATE OF OKLAHOMA, ET AL., PETITIONERS,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., RESPONDENTS.

PACIFICORP, ET AL., PETITIONERS,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., RESPONDENTS.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF NEITHER

PARTY

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

(Additional counsel listed inside cover)

ERIC GROTEN

VINSON & ELKINS LLP

200 West 6th St.,

Suite 2500

Austin, TX 78701

GARRETT T. MEISMAN

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities .................................................... II

Interest of Amicus Curiae ........................................... 1

Introduction and Summary of Argument ................... 3

Argument ..................................................................... 7

I.

Members

of

the

Nation’s

Business

Community, Like All Litigants, Benefit from

Clear and Predictable Rules Regarding Venue.

............................................................................... 7

II. This Court Should Interpret Section 307(b)(1)

of the Clean Air Act in a Manner that Provides

Clear,

Predictable,

and

Administrable

Principles for Determining Venue. ..................... 12

III. As Applied in These Cases, These Principles

Support Adopting an Interpretation that

Gives Real and Substantial Effect to Each Part

of Section 307(b)(1).............................................. 19

Conclusion .................................................................. 23

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Alabama v. EPA,

No. 23-11196 (11th Cir. Oct. 24, 2024).................. 11

Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246 (2024) ................................................ 14

Chevron U.S.A. Inc. v. EPA,

45 F.4th 380 (D.C. Cir. 2022) .................... 10, 20, 22

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) ................................................ 7, 21

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ................................................ 11

Hertz Corp. v. Friend,

559 U.S. 77 (2010) .................................... 7, 8, 15, 21

Kentucky v. EPA,

No. 23-3216, 2023 WL 11871967 (6th Cir. July

25, 2023) ................................................................. 19

Kentucky v. EPA,

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

6, 2024) ............................................................... 9, 16

Liu v. SEC,

591 U.S. 71 (2020) .................................................. 17

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ................................................ 10

Navarro Sav. Ass’n v. Lee,

446 U.S. 458 (1980) .................................................. 8

Nev. Cement Co. v. EPA,

No. 23-682 (9th Cir. July 3, 2023) ........................... 9

III

Cases—Continued:

Page(s)

Nielsen v. Preap,

586 U.S. 392 (2019) ................................................ 17

Oklahoma v. EPA,

93 F.4th 1262 (10th Cir. 2024) ................................ 9

Sierra Club v. EPA,

926 F.3d 844 (D.C. Cir. 2019) ................................ 10

Texas v. EPA,

706 F. App’x 159 (5th Cir. 2017) ........................... 18

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) .................................. 18

Texas v. EPA,

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

May 1, 2023) ........................................................... 11

Travis v. United States,

364 U.S. 631 (1961) ................................................ 21

Utah v. EPA,

No. 23-9509 (10th Cir. Apr. 27, 2023) ..................... 9

Virginia v. United States,

74 F.3d 517 (4th Cir. 1996) .................................... 11

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) .................................. 22

West Virginia v. EPA,

No. 23-1418 (4th Cir. Oct. 21, 2024)...................... 11

Statutes:

15 U.S.C. § 717r(d)(1) ................................................ 19

42 U.S.C. § 6976(a)(1) ................................................ 19

42 U.S.C. § 7607(b)(1) ................... 2, 4, 5, 12-13, 14, 19

IV

Statutes—Continued:

Page(s)

42 U.S.C. § 9613(a) .................................................... 19

Regulations:

88 Fed. Reg. 9336 (Feb. 13, 2023) ........... 19, 20, 21, 22

Other Authorities:

Dodson, Scott The Complexity of Jurisdictional

Clarity, 97 Va. L. Rev. 1 (2011) ........................... 7, 8

Friedman, Barry, Under the Law of Federal

Jurisdiction: Allocating Cases Between

Federal and State Courts,

104 Colum. L. Rev. 1211 (2004) ........................... 7-8

Lambert, William Grayson, The Necessary

Narrowing of General Personal Jurisdiction,

100 Marq. L. Rev. 375 (2016) ............................ 8, 15

Litwiller, Lisa, Why Amendments to Rule 23 Are

Not Enough: A Case for the Federalization of

Class Actions, 7 Chap. L. Rev. 201 (2004) .............. 9

Nash, Jonathan Remy, On the Efficient

Deployment of Rules and Standards to Define

Federal Jurisdiction,

65 Vand. L. Rev. 509 (2012) .............................. 8, 15

Scalia, Antonin & Garner, Bryan A., Reading

Law: The Interpretation of Legal Texts (2012) ...... 11

INTEREST OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than 3 million companies and professional organizations of every

size, in every industry sector, and from every region of

the country. An important function of the Chamber is

to represent the interests of its members in matters

before Congress, the Executive Branch, and the courts.

To that end, the Chamber regularly files amicus curiae

briefs in cases, like this one, that raise issues of concern to the nation’s business community.

The Chamber has an interest in maintaining efficient and predictable mechanisms for judicial review

of federal agency action. An important, frequently recurring, and oft-litigated threshold question in such

cases is which court or courts are the proper venue for

challenges. All stakeholders—even those whose underlying interests in the merits of a dispute may be

diametrically opposed—have a shared interest in having clear and readily administrable rules governing

the selection of venue. Unpredictable and unclear

venue rules can lead to wasteful and time-consuming

threshold litigation about whether venue is proper, increasing the overall cost and uncertainty, and delaying the ultimate resolution, of challenges to agency action.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

(1)

2

The venue provisions in Section 307(b)(1) of the

Clean Air Act, 42 U.S.C. § 7607(b)(1), are significant

in their own right, as they specify venue for judicial

review of a broad range of actions taken by the Environmental Protection Agency under the Clean Air

Act—actions that, individually and in aggregate, can

have significant practical and economic consequences

for members of the nation’s business community. Uncertainty and confusion about the meaning of these

important provisions can have significant negative effects—as vividly illustrated by the circumstances and

lengthy procedural history of the cases under review

and other related litigation.

The Chamber files this brief as amicus curiae in

support of neither party, taking no position on the

Court’s ultimate judgment in these cases. Instead, the

Chamber urges the Court to adopt an interpretation

that provides clarity and predictability to all stakeholders, and minimizes or avoids unnecessary and

wasteful threshold litigation over the appropriate

venue for challenges brought under the Clean Air Act.

In the Chamber’s view, those interests would be best

served by an interpretation of Section 307(b)(1) that is

faithful to the ordinary meaning of the statutory text,

discerned using the traditional tools of statutory construction.

By contrast, interests in clarity and predictability

would be disserved by a reading that allows the government to unilaterally select (or even manipulate)

the proper venue through its choice of formalities,

such as whether to “bundle” together several individual actions into a single omnibus notice for purposes

of publication in the Federal Register. Similarly,

3

interests in clarity and predictability would be disserved by an interpretation that fails to give meaning

and independent significance to each of the separate

provisions in Section 307(b)(1), which provide guidance to litigants by drawing a line between cases that

can be brought only in the D.C. Circuit and cases for

which venue lies exclusively in the appropriate regional circuit. The Court should not endorse a reading

that would deprive any portion of Section 307(b)(1), including the second sentence addressing cases to be

bought in the regional circuits, of meaningful independent effect. Such a reading would not comport

with the statutory text and would have adverse consequences for members of the nation’s business community and for other litigants.

INTRODUCTION AND

SUMMARY OF ARGUMENT

I. The nation’s businesses, no less than other litigants, benefit from clarity and predictability in rules

regarding where and when lawsuits can be brought,

including rules regarding the selection of venue in

challenges to federal agency action. Litigants avoid

spending time and money litigating threshold issues

when it is clear up front which court should adjudicate

a particular dispute. Clarity in the articulation of

venue principles, in turn, promotes predictability in

their application, enabling private parties to make informed business and investment decisions and otherwise order their affairs. In short, certainty, transparency, and predictability regarding where certain types

of claims will be litigated yield real-world benefits to

litigants and other stakeholders.

4

By contrast, complexity and uncertainty in the

rules governing where a case may be brought consume

valuable resources as parties litigate the choice of the

appropriate forum. In the context of litigation challenging federal agency actions, uncertainty regarding

venue rules can generate still further inefficiencies,

such as the filing and consideration of protective petitions in multiple courts, when the law is unclear as to

which court is appropriate, and the preparation and

consideration of merits briefs in cases that are ultimately dismissed for improper venue. Meanwhile,

resolution of merits issues is delayed, undermining

Congress’s decision to expedite challenges to certain

federal agency actions by (as here) authorizing direct

appellate review. Delay in resolving challenges to

EPA’s actions in administering the Clean Air Act can

harm all stakeholders, increasing transition and compliance costs for regulated parties, and extending periods of uncertainty while EPA’s actions remain under

review.

II. Section 307(b)(1) specifies that EPA’s nationally applicable actions will be reviewed in the D.C. Circuit, while regionally or locally applicable actions will

be reviewed in the appropriate regional circuit, unless

such an action is based on a determination of nationwide scope or effect. Although the Chamber takes no

position on the Court’s ultimate judgment in these

cases, and does not attempt to provide a universal taxonomy of the cases that belong in the D.C. Circuit versus regional circuits, this brief offers several interpretative points that would advance interests of clarity

and predictability.

5

First, a key textual distinction in Section 307(b)(1)

is whether a given EPA action is “nationally” versus

“locally or regionally” applicable.

42 U.S.C.

§ 7607(b)(1). While hard cases for drawing that line

may exist, the inquiry should remain focused on the

substance of the actions being taken by EPA, with

close attention to the statutory authority pursuant to

which EPA has acted. That approach follows from the

statutory text, which defines venue for different categories of cases by cross-referencing substantive provisions of the Clean Air Act. Where the substance of an

EPA action is specific to a particular region or locality,

that action should be reviewed in the appropriate regional circuit. Conversely, when the substance of

EPA’s action is nationally applicable, the case belongs

in the D.C. Circuit.

Second, and relatedly, venue determinations

should not turn on formalistic or procedural distinctions that are disconnected from the substance of

EPA’s action. Such an interpretation would open the

door to manipulation, undermining interests in predictability and certainty. It would be improper, therefore, to treat the analysis of venue under Section

307(b)(1) as affected or even determined by whether

EPA decides to bundle multiple individual actions into

a single notice for publication in the Federal Register,

if in fact each individual action pertains to a specific

location. Allowing such bundling to affect the venue

analysis would increase uncertainty and inefficiency

for actions that, in substance, are fundamentally local

or regional in nature. And it would disserve interests

in predictability, because regulated parties would

have no way of knowing in advance whether EPA

6

would combine multiple individual actions (each regional or local in character) into a single publication

package.

Third, meaningful effect should be given to each

separate part of the venue provisions in Section

307(b)(1). Congress took care to identify and distinguish between classes of cases that are always subject

to review in the D.C. Circuit (first sentence), and classes of cases that are presumptively subject to review

in the regional circuits (second sentence). And Congress provided a narrow exception to the second sentence for regional actions that are “based on a determination of nationwide scope or effect” (third sentence). The third sentence should be interpreted in

light of that structure and not as a means for overriding the division in the previous two sentences.

III. Applying these principles to the issues before

the Court in these cases, a natural starting point is to

recognize that the EPA disapprovals of state implementation plans challenged in these cases lie in the

heartland of Section 307(b)(1)’s list of orders reviewable in the regional circuit courts. EPA has argued that

it can effectively channel any case to the D.C. Circuit

by packaging together multiple individual actions;

that argument, however, runs afoul of each of the principles discussed above, that interpretation of the

venue provisions should focus on the statutory text

and the substance of EPA’s actions and should give

meaningful effect to each sentence of Section 307(b)(1).

EPA has also argued that an action is reviewable in

the D.C. Circuit under the third sentence of Section

307(b)(1), so long as EPA identifies some underlying

“legal and technical determinations” that apply across

7

states and that constitute even one among many of the

but-for causes of its action. That argument would,

however, deprive the second sentence of Section

307(b)(1) of much, if not all, meaningful effect, because

it should almost always be the case that, in taking a

particular action, the agency acknowledges and applies a consistent framework or understanding of its

Clean Air Act authority that contributes to its decisionmaking in a material respect. More is required to

trigger the third sentence of Section 307(b)(1). The

government’s reading, if adopted here, would deprive

litigants of clarity and predictability.

However the Court resolves the specific issues

presented here, it should strive to adopt a clear interpretation of the venue provisions of Section 307(b)(1)

that gives effect to each of their components.

ARGUMENT

I.

Members

of

the

Nation’s

Business

Community, Like All Litigants, Benefit from

Clear and Predictable Rules Regarding

Venue.

This Court favors, and litigants benefit from,

“clear boundaries” and “administrative simplicity”

when it comes to the interpretation of statutes dictating where a case should be heard. Direct Mktg. Ass’n

v. Brohl, 575 U.S. 1, 11 (2015); Hertz Corp. v. Friend,

559 U.S. 77, 94 (2010). As courts and commentators

have long recognized, such “clarity generally reduces

litigant costs,” Scott Dodson, The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1, 8 (2011), by reducing the need for “adjudication that has little to do with

the merits,” Barry Friedman, Under the Law of

8

Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211, 1225

(2004).

Simple rules “promote greater predictability,”

which also “is valuable to corporations making business and investment decisions,” Hertz, 559 U.S. at 94,

and “facilitate[s] efficient private bargaining in the

shadow of the law,” Jonathan Remy Nash, On the Efficient Deployment of Rules and Standards to Define

Federal Jurisdiction, 65 Vand. L. Rev. 509, 522 (2012);

see also William Grayson Lambert, The Necessary

Narrowing of General Personal Jurisdiction, 100

Marq. L. Rev. 375, 415 (2016) (clear and predictable

rules “allow[] individuals and businesses to order their

affairs and have rational expectations about where potential disputes could be resolved”).

On the other hand, complex tests governing jurisdiction, venue, and other threshold questions “complicate a case, eating up time and money as the parties

litigate, not the merits of their claims, but which court

is the right court to decide those claims.” Hertz, 559

U.S. at 94; see also Navarro Sav. Ass’n v. Lee, 446 U.S.

458, 464 n.13 (1980) (in discussing related question of

jurisdiction, emphasizing that “[i]t is of first importance to have a definition * * * [that] will not invite

extensive threshold litigation * * * over whether the

case is in the right court,” which “is essentially a waste

of time and resources”). Complex and unclear rules

“produce appeals and reversals, [and] encourage

gamesmanship.” Hertz, 559 U.S. at 94; see also Dodson, supra, at 8 (“[W]hen the court does resolve a jurisdictional issue under clear doctrine, that decision is

likely to be accurate, causing fewer appeals and fewer

9

reversals.”). The resources spent litigating such questions “could otherwise be used to expand business, create jobs, and develop new products”; in many contexts,

those costs may instead be “passed on to consumers in

the form of higher prices.” Lisa Litwiller, Why Amendments to Rule 23 Are Not Enough: A Case for the Federalization of Class Actions, 7 Chap. L. Rev. 201, 202

(2004).

In cases such as this one involving challenges to

federal agency action, uncertainty over proper venue

can spawn unnecessary (and often fruitless) litigation

in multiple respects. For instance, although parties

may raise objections to venue in preliminary motions,

appellate courts regularly carry venue questions with

the case, deferring their resolution to the merits panel.

See, e.g., Order, Nev. Cement Co. v. EPA, No. 23-682,

Doc. No. 27 (9th Cir. July 3, 2023); Order, Utah v.

EPA, No. 23-9509, Doc. No. 93 (10th Cir. Apr. 27,

2023). As a result, parties must devote considerable

time and resources to fully briefing the merits of a case

that may ultimately be transferred or dismissed for

improper venue, leading to duplication of effort and rebriefing in the new forum. E.g., Oklahoma v. EPA, 93

F.4th 1262, 1269 (10th Cir. 2024). And even where

venue is retained, the assigned court is forced to dedicate substantial energy to addressing venue issues.

See Kentucky v. EPA, No. 23-3216, 2024 WL 5001991

(6th Cir. Dec. 6, 2024) (devoting roughly 15 pages of

41-page opinion to Section 307(b)(1) venue issue).

Additionally, to hedge against the risk that a petition for review in one court might be dismissed on

venue grounds, parties often “protectively” file cases in

multiple venues, leading to additional expenditures of

10

resources by the courts and parties. See, e.g., Chevron

U.S.A. Inc. v. EPA, 45 F.4th 380, 384, 388 (D.C. Cir.

2022) (noting that the petitioner had filed protective

petition for review in Ninth Circuit, in case governed

by Section 307(b)(1) of the Clean Air Act; holding that

venue was proper in Ninth Circuit); Sierra Club v.

EPA, 926 F.3d 844, 847 (D.C. Cir. 2019) (similar). This

Court encountered such a practice in National Association of Manufacturers v. Department of Defense,

which addressed and resolved confusion over whether

a particular EPA decision fell within a statutorily enumerated list of actions that must be reviewed in federal courts of appeals, rather than district courts. 583

U.S. 109, 114 (2018). Due to uncertainty regarding

this question, numerous parties had “file[d] ‘protective’ petitions for review in various Courts of Appeals

to preserve their challenges in the event that their District Court lawsuits were dismissed for lack of jurisdiction.” Id. at 119. Divergent jurisdictional decisions

ensued: one court of appeals exercised jurisdiction to

stay EPA’s rule, while a district court held that it had

jurisdiction to review the rule, and other district

courts dismissed for lack of jurisdiction. Ibid.

While parties and courts work to resolve confusion

as to venue questions, the ultimate resolution of the

underlying merits is further delayed, with negative

practical consequences for regulators, regulated entities, and other stakeholders. For example, in the

Fourth Circuit and Eleventh Circuit litigation involving EPA’s disapprovals of West Virginia’s and Alabama’s plans to address “good neighbor” obligations

arising out of the most recent ozone air quality standards, the courts have postponed deciding the cases on

11

the merits pending this Court’s resolution of the venue

question. Order, Alabama v. EPA, No. 23-11196, Doc.

No. 56 (11th Cir. Oct. 24, 2024); Order, West Virginia

v. EPA, No. 23-1418, Doc. No. 126 (4th Cir. Oct. 21,

2024). In parallel cases in the Fifth and Eighth Circuits, the courts likewise have not yet disposed of petitions for review on the merits, despite having acted

on stay motions for those disapprovals more than 18

months ago. See Order, Arkansas v. EPA, No. 231320, Doc. No. 5280996 (8th Cir. May 25, 2023); Texas

v. EPA, No. 23-60069, 2023 WL 7204840 (5th Cir. May

1, 2023).

All of these inefficiencies add up to very real costs

for litigants and the courts. The resultant delays are

hard to square with Congress’s intention to expedite

resolution of the challenges by allowing direct review

in the courts of appeals. See Virginia v. United States,

74 F.3d 517, 525 (4th Cir. 1996) (direct appellate review creates a streamlined process for “prompt and

conclusive” judicial review of agency actions); accord

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985) (direct appellate review of agency decisions

avoids “duplication of the identical task in the district

court and in the court of appeals”). And regulated parties will incur higher transition and compliance costs,

and all stakeholders will experience extended periods

of uncertainty while EPA’s actions remain under review.

These negative consequences can be mitigated,

and clarity and predictability improved, by adopting

an interpretation of the Clean Air Act’s venue rules

that adheres faithfully to the statutory text. See Antonin Scalia & Bryan A. Garner, Reading Law: The

12

Interpretation of Legal Texts, at xxix (2012) (interpretive approach grounded in the text will typically “provide greater certainty in the law, and hence greater

predictability”). That precept is especially true with

respect to the interpretation of Section 307(b)(1),

where Congress crafted a reticulated and balanced

statutory scheme that channels certain kinds of cases

to the D.C. Circuit and others to the appropriate regional circuits.

II.

This Court Should Interpret Section

307(b)(1) of the Clean Air Act in a Manner

that Provides Clear, Predictable, and

Administrable Principles for Determining

Venue.

Section 307(b)(1) provides a three-part structure

for determining which court of appeals must hear a petition for review of a final action by EPA:

•

The first sentence of Section 307(b)(1) states

that a petition for review of any of an enumerated list of EPA actions, “or any other nationally applicable regulations promulgated, or final action taken, by [EPA] under this chapter[,]

may be filed only in” the U.S. Court of Appeals

for the D.C. Circuit.

•

The second sentence provides that a petition for

review of any of another enumerated list of EPA

actions “or any other final action * * * which is

locally or regionally applicable may be filed

only in” the U.S. Court of Appeals “for the appropriate circuit.”

•

The third sentence creates a limited exception

to the second, stating that an action referenced

13

in the second sentence is reviewable only in the

D.C. Circuit “if such action is based on a determination of nationwide scope or effect

and if in taking such action the Administrator

finds and publishes that such action is based on

such a determination.”

42 U.S.C. § 7607(b)(1) (emphases added).

Three principles from this text provide a helpful

guide for understanding its application in cases like

these.

1. First, decisions about whether a particular

EPA action is “nationally applicable,” “locally or regionally applicable,” or “based on a determination of

nationwide scope or effect” should be grounded in the

substance of the relevant actions EPA is taking. This

interpretation aligns with, and follows from, the detailed statutory enumerations of actions reviewable in

particular circuits that Congress included here.

The references to specific categories of agency actions in Section 307(b)(1) focus on the substantive nature of, and legal authority underlying, those actions,

as indicated by the extensive statutory cross-references to other substantive provisions of the Clean Air

Act authorizing EPA to act. For example, the actions

that are to be reviewed exclusively by the D.C. Circuit

include those that promulgate “any national * * * ambient air quality standard [NAAQS],” “any emission

standard” for hazardous air pollutants under 42

U.S.C. § 7412, and “any standard of performance” for

stationary sources of pollutants under 42 U.S.C.

§ 7411. See 42 U.S.C. § 7607(b)(1). Actions presumptively reviewable in the appropriate regional circuit,

14

by contrast, include “approving or promulgating any

[state] implementation plan” under 42 U.S.C. § 7410,

any order granting a waiver of performance requirements for a specific emissions source (“with the consent of the Governor of the State in which the source

is to be located”) under 42 U.S.C. § 7411(j), and any

order imposing a noncompliance penalty for a specific

emissions source under 42 U.S.C. § 7420. 42 U.S.C.

§ 7607(b)(1).

The Court can thus infer that, where the statute

subsequently refers to “any other nationally applicable

* * * final action,” “any other final action * * * which is

locally or regionally applicable,” and “a determination

of nationwide scope or effect,” Congress was likewise

concerned with whether the substance of the agency’s

action has national, local, or regional applicability, or

whether the substance of the underlying determination has nationwide scope or effect. See Bissonnette v.

LePage Bakeries Park St., LLC, 601 U.S. 246, 252

(2024) (Under the ejusdem generis canon, “courts interpret a general or collective term at the end of a list

of specific items in light of any common attribute[s]

shared by the specific items.”) (quotation marks omitted). Under this textual and interpretative approach,

the appropriate regional circuit should review an EPA

action that makes determinations specific to a particular locality or region.

2. Second, and relatedly, venue selection should

not turn on purely formalistic distinctions or factors

that are otherwise disconnected from the substance of

the agency action in question, such as EPA’s decision

(or not) to “bundle” individual actions together for purposes of publication in the Federal Register. The

15

enumeration of EPA actions in Section 307(b)(1), as

discussed above, looks to the underlying substantive

authority being exercised, not the form in which the

agency chooses to publish one or more of its actions.

Indeed, if Congress had wanted to peg reviewability to

the form in which EPA published its actions, it could

easily have done so. Instead, Congress gave EPA carefully limited discretion, via the third sentence of Section 307(b)(1), to choose whether to publish a finding

that its local or regional action is based on a determination of nationwide scope or effect. This Court should

not adopt an interpretation of Section 307(b)(1) that

would vest EPA with the much broader discretion to

channel virtually any case to the D.C. Circuit by redefining the nature of the action via an atextual “bundling” theory.

By tying review to the substance of EPA’s action,

Congress also avoided opening the venue question to

the sort of manipulation that this Court has sought to

discourage. Hertz, 559 U.S. at 94. And it promoted

predictability and certainty for regulated parties, who

commonly undertake a great deal of decisionmaking

and preparatory work in advance of an EPA order—

whether in seeking authorizations, investing in future

compliance, or in making other strategic business

judgments—some of which may be affected by the expected venue in which a petition for review of the

agency’s action may be heard. See Hertz, 559 U.S. at

94; Nash, supra, at 522; Lambert, supra, at 415. If the

form in which EPA chooses to publish an agency action

prevails over the substance of the action in determining venue, the resulting uncertainty would hamper

16

regulated parties’ ability to engage in informed decisionmaking.

Indeed, if discretionary, formalistic characteristics like the “bundling” of actions for publication were

dispositive under Section 307(b)(1), confusion as to the

proper venue could linger even after EPA issues a notice combining various regionally applicable actions.

Assuming for the sake of argument that an EPA action

becomes “national” in character merely because it has

been published together with numerous other actions

that, collectively, cover different areas of the country,

“[w]ould this logic reach an action that covered only

California, Maine, and Alabama because they fall in

different parts of the country? If not, how many more

States are needed?” Kentucky, 2024 WL 5001991, at

*8.

Channeling cases to the D.C. Circuit for reasons

of form rather than substance would pose particular

problems whenever the agency concurrently issues a

large number of actions that are each locally focused

and fact-intensive. The administrative record for any

individual agency action can consist of many hundreds

or thousands of pages. But where EPA’s decision in

reality consists of a series of distinct actions, each resting on individualized, fact-bound analysis focused on a

particular state or region, the aggregation of all those

actions into a single review proceeding before a single

court could easily result in an excessively large record

and a need for briefs covering a panoply of complex issues specific to each of EPA’s actions. Forcing such

cases to the D.C. Circuit could place significant strain

on judicial resources, as well as deprive the parties of

a full opportunity to argue the complex, locality-

17

specific issues that would be more fully vetted in a proceeding in a regional circuit devoted to those issues

alone—as Congress intended.

3. Third, meaningful effect must be given to each

of the separate provisions in Section 307(b)(1)—including the first, second, and third sentences. After

all, it is a “cardinal principle of interpretation that

courts must give effect, if possible, to every clause and

word of a statute.” Liu v. SEC, 591 U.S. 71, 89 (2020).

In applying ordinary principles of statutory construction, this Court has long avoided interpretations that

would treat any aspect of Congress’s scheme as “meaningless” or having “no consequence.” Ibid.; Nielsen v.

Preap, 586 U.S. 392, 414 (2019).

Here, Congress divided responsibility for review of

EPA’s decisions under this scheme between the D.C.

Circuit and the regional circuits. This Court should

adopt a reading that respects the balance that Congress struck, and does not deprive one provision of the

statute of meaningful effect (e.g., the part enumerating cases to be heard “only” in the regional circuits)

through an overbroad interpretation of another provision (e.g., the part ensuring that certain actions based

on a determination of nationwide scope or effect are

reviewed “only” in the D.C. Circuit). The balance

struck by Congress accounts for a variety of considerations. For example, Congress presumably knew that

regional circuit courts are most likely to be familiar

with and well-informed regarding legal and factual issues that affect local and regional interests. These can

include principles of state law that often arise in cooperative federalism regimes such as the Clean Air Act,

and the mix of legal, economic, social, and other

18

practical considerations affecting major regulatory actions. See State Br. 54-55; cf. Texas v. EPA, 829 F.3d

405, 424 (5th Cir. 2016) (asserting venue over challenges to EPA’s disapproval of Texas’s and Oklahoma’s

plans for implementing air visibility standards); Texas

v. EPA, 706 F. App’x 159 (5th Cir. 2017) (same, for

EPA’s designation of three areas in Texas as not attaining revised air quality standards for sulfur dioxide). And channeling regionally focused EPA actions

to the regional circuits avoids disconnecting litigation

from the areas where the effects of the agency’s action

are most acutely and directly felt. So too does siting

cases in the regional circuits avoid burdening litigants

with the higher travel and logistical costs associated

with litigating challenges in D.C. And it avoids potential optical concerns that an agency may enjoy a

“hometown advantage” in defending its decisions in

Washington, D.C.

By contrast, siting review of truly nationally applicable regulations, and certain determinations of nationwide scope or effect, in the D.C. Circuit avoids the

prospect of conflicting decisions from multiple circuits

over the same agency actions. Multiple petitions filed

in the D.C. Circuit can simply be consolidated, allowing for more efficient review for all—the government,

private litigants, and the courts.

In sum, Congress contemplated that both the D.C.

Circuit and regional circuits would have a meaningful

role. This is not a statute, like some, that centralizes

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all review in the D.C. Circuit,2 or that vests regional

circuits with exclusive and irrebuttable jurisdiction

over an entire category of cases. 3 None of the sentences in Section 307(b)(1)’s venue provisions should

be interpreted to undermine Congress’s choices in assigning venue for judicial review of different kinds of

EPA actions.

III. As Applied in These Cases, These Principles

Support Adopting an Interpretation that

Gives Real and Substantial Effect to Each

Part of Section 307(b)(1).

Although the Chamber takes no position on the

Court’s ultimate judgment in these cases, the principles articulated above should provide helpful guidance

in resolving the specific venue questions presented

here. These cases concern EPA’s disapproval of Utah’s

and Oklahoma’s state plans for implementing EPA’s

ozone standards under the Clean Air Act’s “Good

Neighbor Provision.” State Pet. 1; see 88 Fed. Reg.

9336 (Feb. 13, 2023). The cases thus involve EPA actions that lie in the heartland of the list of actions enumerated in the second sentence of Section 307(b)(1),

which include those actions that “approv[e] or promulgat[e] any implementation plan” for EPA’s air quality

standards, as well as any locally or regionally applicable “denial or disapproval” of such a plan. 42 U.S.C.

§ 7607(b)(1); accord Kentucky v. EPA, No. 23-3216,

2023 WL 11871967, at *2 (6th Cir. July 25, 2023)

2 Cf., e.g., 42 U.S.C. § 6976(a)(1) (Resource Conservation and

Recovery Act); 42 U.S.C. § 9613(a) (Comprehensive Environmental Response, Compensation, and Liability Act).

3 Cf. 15 U.S.C. § 717r(d)(1) (Natural Gas Act).

20

(“Just as most * * * approvals of SIPs * * * unequivocally fall in the ‘locally or regionally applicable’ category, so too does the disapproval of SIPs.”) (quotation

marks and citation omitted); see also Chevron, 45

F.4th at 386 (“Approving or promulgating a State Implementation Plan is the prototypical ‘locally or regionally applicable’ action that may be challenged only

in the appropriate regional court of appeals.”) (cleaned

up). The statute thus appears to create a presumption

that actions of the kind at issue here should be reviewed in the appropriate regional circuit, rather than

the D.C. Circuit.

In resisting that conclusion, the government has

argued that its disapprovals were “nationally applicable,” implicating the first sentence of Section 307(b)(1),

because EPA published one document combining the

disapprovals of various state implementation plans,

and because each disapproval was based on a common

“process and standard.” Gov’t Cert. Resp. Br. 10; see

88 Fed. Reg. at 9380 (arguing that combined SIP disapprovals amounted to a “nationally applicable” action

under Section 307(b)(1) because “EPA is applying a

uniform legal interpretation and common, nationwide

analytical methods * * * in a large number of states located across the country”; also citing “the interdependent nature of interstate pollution transport and the

common core of knowledge and analysis involved in

evaluating the submitted SIPs”). Alternatively, EPA

argues that its disapprovals were based on a determination of nationwide scope and effect, implicating the

exception in the third sentence, because EPA relied on

“legal and technical determinations that applied

across the various States.” Gov’t Cert. Resp. Br. 10;

21

see 88 Fed. Reg. at 9380-9381. But as discussed above,

EPA’s bundling argument is difficult to reconcile with

an interpretative approach that focuses on the substance and underlying statutory authority of each of

EPA’s actions, rather than distinctions based on administrative convenience or form.

EPA’s interpretation risks depriving the second

sentence of any real and meaningful effect, thereby

undermining interests of clarity and predictability.

See Brohl, 575 U.S. at 11; Hertz, 559 U.S. at 94. There

is no apparent constraint on EPA’s ability to bundle

multiple locally focused decisions into a single rule or

order for purposes of publication, as it did here. See

State Br. 30. So if the “bundling” of individual local or

or regional actions transformed those discrete actions

into a single, national action, the agency would effectively “have the choice” of which tribunal would hear

a case, and it could ensure that virtually none of its

actions were reviewed outside the D.C. Circuit. See

Travis v. United States, 364 U.S. 631, 634 (1961).

Similar concerns are implicated by an interpretation that would justify venue in the D.C. Circuit any

time the agency has taken action to deny a state implementation plan while utilizing “a uniform process

and standard” or common “legal and technical determinations.” Gov’t Cert. Resp. 10. It is difficult to discern a meaningful limiting principle in that position,

a problem exacerbated by the government’s expansively worded assertions of discretion in this area. See

88 Fed. Reg. at 9380-9381 (asserting that “[f]or locally

or regionally applicable final actions, the [Clean Air

Act] reserves to the EPA complete discretion whether

to invoke” third sentence of the venue provisions)

22

(emphasis added); id. at 9380-81 (twice stating that

“the Administrator is exercising [his] complete discretion”) (emphasis added); id. at 9380 n.337 (“In deciding

whether to invoke the exception * * *, the Administrator takes into account a number of policy considerations, including his judgment balancing the benefit of

obtaining the D.C. Circuit’s authoritative centralized

review versus allowing development of the issue in

other contexts and the best use of agency resources.”).

In virtually every action under the Clean Air Act,

the agency will, to some non-trivial extent, rely on and

apply a consistent, generally applicable understanding of the statutes and rules governing its administration of the Clean Air Act. See West Virginia v. EPA,

90 F.4th 323, 329-330 (4th Cir. 2024) (“[I]f application

of a national standard * * * were the controlling factor, there never could be a local or regional action as

recognized by the Clean Air Act because every action

of the EPA purportedly applies a national standard.”);

Chevron, 45 F.4th at 387 (“[M]any locally or regionally

applicable actions may require interpretation of the

Clean Air Act’s statutory terms, and that kind of interpretive exercise alone does not transform a locally

applicable action into a nationally applicable one. * * *

[T]hat a challenged action ‘applies a broad regulation

to a specific context’ and ‘may set a precedent for future * * * proceedings’ does not make it nationally applicable.”). The Court should not adopt an interpretation of Section 307(b)(1) that would, as a practical matter, give EPA sweeping discretion to decide venue and

render the second sentence’s regional-review provision

a dead letter in most, if not all, cases, subverting

23

Congress’s intent as reflected in the text of the statute

that Congress enacted.

CONCLUSION

Whatever this Court’s ultimate judgment in these

cases, it should adopt a clear interpretation of Section

307(b)(1), grounded firmly in the statutory text, that

promotes predictability and certainty in the selection

of venue.

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Respectfully submitted.

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

ERIC GROTEN

VINSON & ELKINS LLP

200 West 6th St.,

Suite 2500

Austin, TX 78701

GARRETT MEISMAN

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

Counsel for Amicus Curiae

DECEMBER 2024