Motion for divided argument — Oklahoma, et al., Petitioners v. Environmental Protection Agency, et al.

Nos. 23-1067, 23-1068

In the Supreme Court of the United States

STATE OF OKLAHOMA, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

PACIFICORP, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITIONERS’ JOINT MOTION FOR DIVIDED ARGUMENT

MITHUN MANSINGHANI

Counsel of Record

LEHOTSKY KELLER COHN LLP

629 W. Main St.

Oklahoma City, OK 73102

(512) 693-8350

mithun@lkcfirm.com

Counsel for Petitioners

State of Oklahoma and

Oklahoma Department

of Environmental Quality

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER

LOCKE LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@trouman.com

Attorneys for Petitioner PacifiCorp

Additional counsel listed in signature block

Pursuant to Rules 21 and 28.4 of this Court, Petitioners in Case

Nos. 23-1067 (State Petitioners) and 23-1068 (Industry Petitioners)

jointly move for divided argument. Petitioners request to divide their 30

minutes of argument time, with the State Petitioners receiving 20

minutes and the Industry Petitioners receiving 10 minutes.

State

Petitioners each filed separate petitions for review of the denial of their

State Implementation Plans (“SIP”) in the United States Court of

Appeals for the Tenth Circuit, see generally Pet.App.9a, and although

they have several counsel representing them, they have agreed to have a

single counsel present oral argument on their behalf before this Court.

Similarly, Industry Petitioners filed separate petitions for review in the

Tenth Circuit and have several counsel representing them, see generally

id., and they have agreed to a single counsel to represent all Industry

Petitioners at oral argument before this Court. Granting this motion

would not require the Court to enlarge the overall time for argument.

1. This Court has often allowed private litigants and government

entities to divide argument. Ohio v. EPA, 144 S. Ct. 691, (2024) (Mem.);

Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 142 S. Ct. 746 (2021) (Mem.);

United States v. Texas, 142 S. Ct. 416 (2021) (Mem.); Dep’t of Homeland

Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 398 (2019) (Mem.); Trump

v. NAACP, 140 S. Ct. 398 (2019) (Mem.); Am. Legion v. Am. Humanist

Ass’n, 139 S. Ct. 951 (2019) (Mem.); Tenn. Wine & Spirits Retailers Ass’n

v. Blair, 139 S. Ct. 783 (2019) (Mem.); Masterpiece Cakeshop, Ltd. v. Colo.

Civ. Rights Comm’n, 138 S. Ct. 466–67 (2017) (Mem.).

2. While all Petitioners share the goal of having the regional Courts

of

Appeals

deciding

local

and

regional

issues,

including

the

Environmental Protection Agency’s (“EPA”) actions on SIPs, 42 U.S.C.

§ 7607(b)(1), State Petitioners and Industry Petitioners bring different

interests and perspectives to the case. State Petitioners have sovereign

and governing interests in regulating emission sources within their

respective States (including state enforcement of the SIPs and their

regulations) and preserving the cooperative-federalism scheme that the

Clean Air Act requires. Industry Petitioners provide power generation,

transmission, and delivery in the affected States and employ thousands

of workers. As the parties regulated by SIPs, they ultimately bear much

of the economic cost imposed by Clean Air Act regulations.

3. Reflecting those distinct interests, the two groups of Petitioners

have been consistently aligned on the need for SIP decisions to be heard

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in regional courts. While the State Petitioners and Industry Petitioners

make complementary arguments, there are important differences such

that neither group can represent fully the interests of the other. See

Stephen M. Shapiro, et al., Supreme Court Practice 777 (10th ed. 2013)

(“Having more than one lawyer argue on a side is justifiable . . . when

they represent different parties with different interests or positions.”).

Allowing State Petitioners and Industry Petitioners to argue in this case

would enable the Court to hear from two groups with unique insights on

a matter of exceptional importance to States, businesses, and the public.

4. State Petitioners and Industry Petitioners present different

approaches to EPA’s (mis)application of Section 307(b)(1)’s third

sentence. This sentence provides a narrow exception to the default venue

rule created by Section 307(b)(1)’s first two sentences. That exception

requires challenges to a “locally or regionally applicable” EPA action to

be filed in the D.C. Circuit “if such action is based on a determination of

nationwide scope or effect” and EPA “finds and publishes that such action

is based on such a determination.”

42 U.S.C. § 7607(b)(1).

State

Petitioners and Industry Petitioners present different understandings of

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this sentence, although they all agree that venue is proper in the Tenth

Circuit under either approach.

Beginning with State Petitioners, they argue that a “locally or

regionally applicable action” is “based on” a “determination of nationwide

scope or effect” within Section 307(b)(1)’s third sentence, 42 U.S.C.

§ 7607(b)(1), if “the ultimate justifications on which EPA’s locally or

regionally applicable action is based [ ] cover the entire country or

necessarily result in consequences throughout the whole nation,” States

Br.43 (emphasis added). According to State Petitioners, the actions here

are not within the venue provision’s exception because “[t]he core

findings that made the difference as to whether any given plan was

approved or disapproved” were “unique to each State’s submission,” not

nationwide. States Br.44-45.

While supportive of the States’ position, Industry Petitioners, for

their part, believe that a “locally or regionally applicable action” falls

within Section 307(b)(1)’s third sentence “if EPA decides to issue a locally

or regionally applicable action’ ‘based on’ that action’s ‘nationwide scope

or effect’ (and then publishes that finding).” Industry Br.47–48 (quoting

42 U.S.C. § 7607(b)(1)). As then-Judge Kavanaugh explained, Section

4

307(b)(1)’s third sentence only applies if “‘otherwise locally or regionally

applicable regulations have a nationwide scope or effect.’” Industry Br.48

(quoting Am. Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453, 455

(D.C. Cir. 2013)).

State Petitioners’ and Industry Petitioners’ interpretations of

Section 307(b)(1)’s third sentence are different, although, as noted, they

each support venue in the regional courts if the Court applies either of

their interpretations. State Petitioners’ approach to Section 307(b)(1)’s

third sentence considers EPA’s “ultimate reasons” or “ultimate

justifications” for taking the “locally or regionally applicable action” at

issue,

asking

whether

those

“ultimate

reasons”

or

“ultimate

justifications” are of a “nationwide” “scope or effect.” States Br.40–41,

43, 45 (quoting 42 U.S.C. § 7607(b)(1) (emphases added)).

Industry

Petitioners’ approach to Section 307(b)(1)’s third sentence looks to the

“locally or regionally applicable” action itself, asking whether EPA issued

that action based upon its determination that the action itself has “a

nationwide scope or effect.”

Industry Br.47–48 (quoting Am. Rd. &

Transp. Builders Ass’n, 705 F.3d at 455).

5

Petitioners respectfully submit that this Court would benefit from

exploring both of these approaches to Section 307(b)(1)’s third sentence

at oral argument, which can most effectively occur by having the

proponents of these different approaches present argument.

5. For all the reasons discussed above, the State and Industry

Petitioners believe that allowing both groups of Petitioners to participate

in oral argument would materially aid in the resolution of this case.

Accordingly, Petitioners move for divided argument, with the State

Petitioners receiving 20 minutes and the Industry Petitioners receiving

10 minutes.

6

Respectfully submitted,

/s/Mithun Mansinghani

/s/Misha Tseytlin

GENTNER DRUMMOND

Attorney General

GARRY M. GASKINS

Solicitor General

JENNIFER L. LEWIS

Deputy Attorney General

OKLAHOMA ATTORNEY

GENERAL’S OFFICE

313 N.E. 21st Street

Oklahoma City, OK 73105

MISHA TSEYTLIN

Counsel of Record

JEFF P. JOHNSON

KEVIN M. LEROY

KAITLIN L. O’DONNELL

EMILY O’ BRIEN

TROUTMAN PEPPER

LOCKE LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@trouman.com

MITHUN MANSINGHANI

Counsel of Record

LEHOTSKY KELLER COHN LLP

629 W. Main St.

Oklahoma City, OK 73102

(512) 693-8350

mithun@lkcfirm.com

CARROL WADE MCGUFFEY

TROUTMAN PEPPER

LOCKE LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

MICHAEL B. SCHON

DREW F. WALDBESER

LEHOTSKY KELLER COHN LLP

200 Mass. Ave. N.W.

Washington, D.C. 20001

MARIE BRADSHAW DURRANT

Vice President and General

Counsel

CHRISTIAN C. STEPHENS

Senior Attorney

PACIFICORP

1407 North Temple

Suite 320

Salt Lake City, UT 84116

Attorneys for Petitioner PacifiCorp

Attorneys for Petitioners State

of Oklahoma and Oklahoma

Department of Environmental

Quality

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DEREK BROWN

Attorney General

STANFORD E. PURSER

Solicitor General

OFFICE OF THE UTAH

ATTORNEY GENERAL

Utah State Capitol Complex

350 N. State St., Ste. 230

Salt Lake City, UT 84114

MEGAN BERGE

SARAH DOUGLAS

BAKER BOTTS L.L.P.

700 K Street N.W.

Washington, D.C. 20001

AARON M. STREETT

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

WILLIAM L. WEHRUM

WEHRUM ENVIRONMENTAL

LAW LLC

1629 K St., N.W., Ste. 300

Washington, D.C. 20006

Attorneys for the Oklahoma

Industry Petitioners

EMILY C. SCHILLING

HOLLAND & HART LLP

222 S. Main St., Ste. 2200

Salt Lake City, UT 84101

H. MICHAEL KELLER

ARTEMIS D. VAMIANAKIS

FABIAN VANCOTT

95 South State Street

Suite 2300

Salt Lake City, UT 84111

KRISTINA R. VAN BOCKERN

AARON B. TUCKER

HOLLAND & HART LLP

555 Seventeenth St.,

Ste. 3200

Denver, CO 80202

EMILY L. WEGENER

General Counsel

UTAH ASSOCIATED MUNICIPAL

POWER SYSTEMS

155 North 400 West

Suite 480

Salt Lake City, UT 84103

Counsel for Petitioner

State of Utah

Attorneys for Utah Associated

Municipal Power Systems

8

ALAN I. ROBBINS

DEBRA D. ROBY

WASHINGTON ENERGY

LAW LLP

900 17th St. NW

Suite 500-A

Washington, D.C. 20006

Attorneys for Utah Municipal

Power Agency

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