Motion to hold the briefing schedule in abeyance — Oklahoma, et al., Petitioners v. Environmental Protection Agency, et al.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-1067

STATE OF OKLAHOMA, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

_______________

No. 23-1068

PACIFICORP, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

_______________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

MOTION OF THE RESPONDENTS

TO HOLD THE BRIEFING SCHEDULE IN ABEYANCE

_______________

Pursuant to Rule 21.1 of the Rules of this Court, the Acting

Solicitor General, on behalf of respondents United States Environmental Protection Agency (EPA) and James Payne in his official

capacity as the Acting Administrator of EPA, respectfully moves to

hold the briefing schedule in abeyance, without prejudice to any

2

party requesting to have the briefing schedule reinstated should

the matter not be resolved. *

Petitioners’ reply briefs are cur-

rently due on February 18, 2025, and the cases have not yet been

scheduled for argument.

Petitioners oppose respondents’ request

to hold the briefing schedule in abeyance and intend to file a

response.

1.

When a petitioner seeks review of a “final action” taken

by the EPA under the Clean Air Act (CAA), 42 U.S.C. 7401 et seq.,

Section 7607(b)(1) of Title 42 authorizes direct court of appeals

review of the petitioner’s challenge.

That provision makes the

D.C. Circuit the exclusive venue for a petition for review of

certain specified actions or “any other nationally applicable regulations promulgated, or final action taken, by” EPA.

7607(b)(1).

42 U.S.C.

By contrast, a petition for review of an action that

is “locally or regionally applicable may” generally “be filed only

in the United States Court of Appeals for the appropriate circuit.”

Ibid.

But a petition for review of a locally or regionally ap-

plicable EPA action must be filed in the D.C. Circuit if the agency

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.”

Ibid.

Acting Administrator Payne is substituted as a party for

his predecessor in office. See Sup. Ct. R. 35.3.

*

3

At issue in this case is a final action disapproving 21

States’ implementation plans for reducing ozone pollution transported across state lines.

88 Fed. Reg. 9336 (Feb. 13, 2023).

Petitioners Oklahoma and Utah (State petitioners), as well as eight

industry petitioners (Industry petitioners) filed petitions for

review of the disapproval action in both the Tenth and D.C. Circuits.

In the Tenth Circuit, EPA moved to transfer venue to the

D.C. Circuit or to dismiss for improper venue.

Pet. App. 8a.

A

motions panel stayed the disapproval action as to the state plans

submitted by Oklahoma and Utah, and it referred the motion to

dismiss or transfer venue to the merits panel.

Id. at 10a-11a.

The merits panel then granted EPA’s motion and transferred the

petitions to the D.C. Circuit.

Id. at 1a-19a.

The court concluded

that “[o]n its face,” the disapproval action is nationally applicable because it disapproves state plans “from 21 States across

the country.”

Id. at 12a.

On March 28, 2024, State and Industry petitioners filed separate petitions for writs of certiorari, which present the question

whether venue for challenges to the disapproval action lies in the

D.C. Circuit or the Tenth Circuit.

On October 21, 2024, this Court

granted both petitions and consolidated the cases.

2.

After the change in Administration, EPA’s Acting Admin-

istrator has determined that the agency should reassess the basis

for and soundness of the underlying disapproval action.

Such a

reassessment could obviate the need for this Court to determine

4

the proper venue for challenges to that action.

Accordingly,

respondents respectfully request that this Court hold the briefing

schedule in abeyance.

Petitioners’ reply briefs are currently due

on February 18, 2025, and the case has not yet been scheduled for

argument.

Given the Acting Administrator’s determination, it

would be appropriate for the Court to hold further proceedings in

this case in abeyance to allow for EPA to reassess the basis for

and soundness of the disapproval action.

The Court has previously

held the briefing schedule in abeyance in light of developments

arising after the grant of certiorari in other cases.

See, e.g.,

Biden v. Sierra Club, No. 20-138 (Feb. 3, 2021); Mayorkas v. Innovation Law Lab, No. 19-1212 (Feb. 3, 2021).

Respondents there-

fore request an order holding the briefing schedule in abeyance,

without prejudice to any party requesting to have the briefing

schedule reinstated should the matter not be resolved.

3.

We have consulted with counsel for petitioners, who have

informed us that they oppose the relief requested and intend to

file a response.

If this motion is granted, we will advise the

Court of material developments that would support further action

by the Court.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

JANUARY 2025