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

Supreme Court briefJan 24, 2025

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Nos. 23-1067, 23-1068

IN THE

Supreme Court of the United States

State of OKLAHOMA, et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

PACIFICORP, et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR STATES OF NEW YORK, ARIZONA, CONNECTICUT,

DELAWARE, HAWAI‘I, ILLINOIS, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, NEW JERSEY, NEW MEXICO,

OREGON, RHODE ISLAND, VERMONT, WASHINGTON,

AND WISCONSIN; THE DISTRICT OF COLUMBIA;

HARRIS COUNTY, TEXAS; AND THE CITY OF NEW YORK

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ELIZABETH A. BRODY

Assistant Solicitor General

MORGAN A. COSTELLO

CLAIBORNE E. WALTHALL

Assistant Attorneys General

28 Liberty Street

New York, New York 10005

(212) 416-8016

barbara.underwood@ag.ny.gov

*Counsel of Record

(Counsel listing continues on signature pages.)

TABLE OF CONTENTS

Page

Table of Authorities ...................................................... iii

Interests of Amici Curiae ............................................... 1

Statement ........................................................................ 3

A. Statutory Background..................................... 3

B. Factual and Procedural Background ............. 3

1. Interstate ozone pollution and the

“good neighbor” provision ......................... 3

2. The SIP Disapproval Rule ........................ 6

3. This litigation ............................................ 9

Summary of Argument ................................................. 12

Argument ....................................................................... 13

The SIP Disapproval Rule Is Nationally

Applicable. ............................................................ 13

A. The Rule Spans Twenty-One States and

Ten Judicial Circuits. .................................... 13

B. The Rule Is the Relevant “Action.” .............. 18

II. In the Alternative, the SIP Disapproval Rule

Is Based on Multiple Determinations of

Nationwide Scope or Effect. ................................ 23

A. The Rule Contains Multiple

Determinations of Nationwide Scope or

Effect............................................................... 23

1. One-percent contribution threshold ...... 24

2. International emissions .......................... 26

3. Preexisting control measures ................. 27

Page

B. Congress Amended the Venue Provision

to Avoid Precisely the Type of Chaotic

Litigation That Occurred Here. ................... 29

Conclusion ..................................................................... 34

iii

TABLE OF AUTHORITIES

Cases

Page(s)

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

705 F.3d 453 (D.C. Cir. 2013) ..................................17

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

(10th Cir. 2011) .................................................. 14, 19

Bristol Lab’ys v. Richardson, 456 F.2d 563 (1st

Cir. 1971) ............................................................ 20, 21

Dandridge v. Williams, 397 U.S. 471 (1970) ................23

Dayton Power & Light Co. v. EPA, 520 F.2d 703

(6th Cir. 1975) ...........................................................31

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014) ...................................... 1, 4-6, 21

Gallardo ex rel. Vassallo v. Marstiller, 596 U.S.

420 (2022) ..................................................................33

Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) ......15

Kennecott Corp. v. EPA, 684 F.2d 1007 (D.C. Cir.

1982) ..........................................................................23

Kentucky v. EPA, No. 23-3216, 2023 WL

11871967 (6th Cir. July 25, 2023) ...........................10

National Parks Conservation Ass’n v. EPA, 803

F.3d 151 (3d Cir. 2015) .............................................17

Natural Res. Def. Council, Inc. v. EPA, 465 F.2d

492 (1st Cir. 1972) ....................................................31

Natural Res. Def. Council, Inc. v. EPA, 475 F.2d

968 (D.C. Cir. 1973) ........................................... 16, 31

Natural Res. Def. Council, Inc. v. EPA, 673 F.2d

392 (D.C. Cir. 1980) ........................................... 20-23

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47

(2007) .................................................................. 25, 27

Cases

Page(s)

Saturn Airways, Inc. v. Civil Aeronautics Bd.,

476 F.2d 907 (D.C. Cir. 1973) ..................................20

Sierra Club v. EPA, 47 F.4th 738 (D.C. Cir. 2022) ......17

Southern Ill. Power Coop. v. EPA, 863 F.3d

666 (7th Cir. 2017) ...................................... 13, 14, 18

Texas v. EPA, No. 10-60961, 2011 WL 710598

(5th Cir. Feb. 24, 2011) ...................................... 14-16

Texas v. EPA, No. 23-60069, 2023 WL 7204840

(5th Cir. May 1, 2023) ................................. 10, 15, 16

Train v. Natural Res. Def. Council, Inc., 421 U.S.

60 (1975) ......................................................................7

Utility Air Regul. Grp. v. EPA, 471 F.3d 1333

(D.C. Cir. 2006) .........................................................17

Washington v. Confederated Bands & Tribes of

Yakima Indian Nation, 439 U.S. 463 (1979) ..........23

West Virginia Chamber of Com. v. Browner,

166 F.3d 336, 1998 WL 827315 (4th Cir.

1998) ............................................................. 14, 18, 22

West Virginia v. EPA, 90 F.4th 323 (4th Cir.

2024) ................................................................... 10, 17

Westar Energy, Inc. v. EPA, 608 F. App’x 1 (D.C.

Cir. 2015) ...................................................................17

Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019).. 26, 27

Laws

Clean Air Act Amendments of 1970, Pub. L. No.

91-604, 84 Stat. 1676 ................................................30

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685 ............................................. 30, 32

Laws

Page(s)

5 U.S.C. § 594(1) .............................................................32

28 U.S.C. § 2112(a) .........................................................19

42 U.S.C.

§ 7410(a) ..................................................................5, 6

§ 7410(c)...................................................................5, 6

§ 7411(j) .....................................................................14

§ 7607(b) .......................... 1, 3, 9, 10, 13-15, 19, 23, 25

Federal Register (by date)

Recommendations of the Administrative

Conference of the United States, 41 Fed. Reg.

56767 (Dec. 30, 1976) ........................................ 32, 33

Waiver from New Source Performance Standard

for Homer City Unit No. 3 Steam Electric

Generating Station, 46 Fed. Reg. 55975 (Nov.

13, 1981) ....................................................................14

Innovative Technology Waivers for Four

Automobile and Light-Duty Truck Surface

Coating Operations, 50 Fed. Reg. 36830

(Sept. 9, 1985) ...........................................................14

Action to Ensure Authority to Issue Permits

Under the Prevention of Significant

Deterioration Program to Sources of

Greenhouse Gas Emissions, 75 Fed. Reg.

77698 (Dec. 13, 2010) ...............................................15

Federal Implementation Plans: Interstate

Transport of Fine Particulate Matter and

Ozone and Correction of SIP Approvals,

76 Fed. Reg. 48208 (Aug. 8, 2011) ...........................21

National Ambient Air Quality Standards for

Ozone, 80 Fed. Reg. 65292 (Oct. 26, 2015)............3, 6

Federal Register

Page(s)

Notice of Availability of the Environmental

Protection Agency’s Preliminary Interstate

Ozone Transport Modeling Data, 82 Fed.

Reg. 1733 (Jan. 6, 2017) .............................................6

Air Plan Approval; [Idaho], 85 Fed. Reg. 65722

(Oct. 16, 2020) .............................................................7

Air Plan Disapproval; New York and New

Jersey, 87 Fed. Reg. 9484 (Feb. 22, 2022) .................8

Air Plan Disapproval; Kentucky, 87 Fed. Reg.

9498 (Feb. 22, 2022)....................................................8

Air Plan Disapproval; West Virginia, 87 Fed.

Reg. 9516 (Feb. 22, 2022) ............................ 24, 27, 28

Air Plan Disapproval; [Alabama, Mississippi,

Tennessee], 87 Fed. Reg. 9545 (Feb. 22, 2022) .........8

Air Plan Disapproval; Arkansas, Louisiana,

Oklahoma, and Texas, 87 Fed. Reg. 9798

(Feb. 22, 2022)................................................... 6-8, 24

Air Plan Disapproval; Illinois, Indiana,

Michigan, Minnesota, Ohio, Wisconsin,

87 Fed. Reg. 9838 (Feb. 22, 2022) ..........................7, 8

Air Plan Disapproval; Utah, 87 Fed. Reg. 31470

(May 24, 2022) ................................................. 7-9, 24

Air Plan Disapproval; [Alabama], 87 Fed. Reg.

64412 (Oct. 25, 2022) ..............................................7, 8

Air Plan Disapprovals; Interstate Transport

of Air Pollution for the 2015 8-Hour

Ozone National Ambient Air Quality

Standards, 88 Fed. Reg. 9336

(Feb. 13, 2023)................................... 1, 7-9, 24, 26, 27

vii

Federal Register

Page(s)

Federal ‘‘Good Neighbor Plan’’ for the 2015

Ozone National Ambient Air Quality Standards, 88 Fed. Reg. 36,654 (June 5, 2023) ................4

Miscellaneous Authorities*

Administrative Conference of the United States,

Recommendation 76-4: Judicial Review

Under the Clean Air Act and Federal Water

Pollution Control Act (1976), in Clean Air Act

Amendments of 1977: Hr’g on S. 251, S. 252

& S. 253 Before the S. Subcomm. on Env’t

Pollution of the Comm. on Env’t & Pub.

Works, 95th Cong., 1st Sess. pt. 3 (1977) ......... 31, 32

Air Plan Disapproval; Interstate Transport of

Air Pollution for the 2015 8-hour Ozone

National Ambient Air Quality Standards,

Docket ID No. EPA-HQ-OAR-2021-0663,

https://www.regulations.gov/docket/EPA-HQOAR-2021-0663.........................................................22

American Lung Ass’n, State of the Air 2024:

Texas (2024), https://www.lung.org/research/

sota/city-rankings/states/texas ..................................5

David P. Currie, Judicial Review Under Federal

Pollution Laws, 62 Iowa L. Rev. 1221 (1977) .. 30, 31

Environmental Protection Agency, 2016v3 DVs

State Contributions (n.d.),

https://www.regulations.gov/document/EPAHQ-OAR-2021-0663-0070 ........................................26

*All websites last visited January 24, 2025.

viii

Miscellaneous Authorities

Page(s)

Environmental Protection Agency, Air Quality

Modeling Technical Support Document: 2015

Ozone NAAQS SIP Disapproval Final Action

(2023), https://www.epa.gov/system/files/

documents/2023-02/AQ Modeling TSD_Final

Action %281%29.pdf ...............................................4, 5

H.R. Rep. No. 95-294 (1977) ..........................................33

Memorandum from Janet McCabe, Acting

Assistant Administrator, EPA, to Regional

Administrators, Regions 1-10; Attachment: How

Air Agencies and the EPA Will Move Forward to

Implement the 2015 Ozone Standards (Oct. 1,

2015), https://www.epa.gov/sites/default/files/

2015-10/documents/implementation_memo.pdf.......6

Nicholas Nassikas et al., Ozone-Related Asthma

Emergency Department Visits in the US in a

Warming Climate, 183 Env’t Rsch. no. 109206

(Apr. 2020), https://www.sciencedirect.com/

science/article/abs/pii/S0013935120300980?via

%3Dihub ......................................................................4

Oklahoma Div. of Env’t Quality, Ozone Alert and

Particulate Matter (PM) Alert (n.d.),

https://www.deq.ok.gov/air-quality-division/

ambient-monitoring/ozone-alert-pm-alert/ ...............4

S. Rep. No. 101-228 (1989)...............................................4

U.S. Jud. Panel on Multidistrict Litig.,

Multicircuit Petitions (as of Jan. 15, 2025),

https://www.jpml.uscourts.gov/multicircuitpetitions .....................................................................20

Wright & Miller, Federal Practice & Procedure:

Judicial Review vol. 33, § 8392 (2d ed. June

2024 update) (Westlaw)............................................19

INTERESTS OF AMICI CURIAE

This case concerns whether one circuit court or

seven circuit courts should review a single rulemaking

of the U.S. Environmental Protection Agency (EPA)

under the Clean Air Act. See Air Plan Disapprovals;

Interstate Transport of Air Pollution for the 2015 8Hour Ozone National Ambient Air Quality Standards,

88 Fed. Reg. 9336 (Feb. 13, 2023) (“SIP Disapproval

Rule”). The Rule addresses the thorny problem of interstate pollution by applying a uniform framework to

assess when each State’s sources export pollution in

quantities large enough to trigger statutory obligations

to other States that must cope with the influx of interstate pollution. See EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 514 (2014). The Rule concludes

that twenty-one States possess those statutory obligations and that each failed to propose corresponding

pollution-reduction measures.

The Act’s venue provision vests the D.C. Circuit

with exclusive jurisdiction to review EPA actions that

are “nationally applicable” or that contain a published

finding that the action is “based on a determination of

nationwide scope or effect.” 42 U.S.C. § 7607(b)(1). In

the published Rule, EPA explained that the Rule was

“nationally applicable” because it applied to twenty-one

States in ten judicial circuits. EPA further explained

that the Rule was “based on a determination of nationwide scope or effect” because it was based on a uniform

legal framework and nationwide air pollution modeling.

Notwithstanding these express findings, many

States and industry groups filed dozens of petitions for

review in seven different regional circuits. Pursuant to

the venue provision, EPA moved to transfer these petitions to the D.C. Circuit for centralized review. The

Tenth Circuit concluded that the Rule was nationally

applicable and that petitions challenging it therefore

must be transferred to the D.C. Circuit.

Amici curiae are the States of New York, Arizona,

Connecticut, Delaware, Hawai‘i, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New

Mexico, Oregon, Rhode Island, Vermont, Washington,

and Wisconsin; the District of Columbia; Harris County,

Texas; and the City of New York. Amici file this brief in

support of EPA and affirmance of the Tenth Circuit’s

decision. Amici have substantial interests in this

litigation because most Amici suffer from persistent

ozone pollution driven in significant part by pollution

that migrates from emitters in other States. Despite

these Amici’s successful efforts to reduce pollution from

their own in-state sources, the ongoing influx of out-ofstate pollution continues to impose severe health effects

on Amici’s residents, and regulatory and economic costs

on Amici’s industries—which must shoulder heavier

burdens to offset pollution from other States.

Amici also have significant interests in the proper

application of the Act’s venue provision. Amici have

decades of experience with EPA actions addressing

interstate pollution and with legal challenges to those

actions, including the challenges here. Based on this

experience, Amici write to explain that the Act’s venue

provision requires centralized review of the Rule in the

D.C. Circuit. Since February 2023, seven circuits have

simultaneously reviewed the Rule, which has caused

chaos and delay. This wasteful litigation has severely

harmed Amici by prolonging the health and economic

harms that flow from interstate pollution—contrary to

Congress’s intent under the Act’s venue and good-neighbor provisions.

STATEMENT

A. Statutory Background

The Clean Air Act’s judicial review provision assigns

venue based on the geographical scope of an EPA action.

An action that is “nationally applicable” may be reviewed

“only in the United States Court of Appeals for the District of Columbia.” 42 U.S.C. § 7607(b)(1). By contrast,

an action that is “locally or regionally applicable” may

be filed “only in the United States Court of Appeals for

the appropriate circuit.” Id.

However, a locally or regionally applicable action

may be reviewed only in the D.C. Circuit if such action

includes a published finding that it “is based on a determination of nationwide scope or effect.” Id.

Here, the Tenth Circuit correctly found that the

action at issue was nationally applicable. The ruling can

in the alternative be affirmed on the ground that, even

if locally or regionally applicable, the action was “based

on a determination of nationwide scope or effect.”

B. Factual and Procedural Background

1. Interstate ozone pollution and

the “good neighbor” provision

Ground-level ozone is a harmful pollutant. When

inhaled, ozone reacts with and inflames tissue in the

airways, which can lead to asthma attacks, reduced

lung function, and cardiac effects. See National Ambient

Air Quality Standards for Ozone, 80 Fed. Reg. 65292,

65302-10 (Oct. 26, 2015). When ozone levels are high,

health authorities warn the public that spending time

outdoors can be hazardous, especially for children and

the elderly. 1 Hospitals report more emergency room

visits on high-ozone days, including from children experiencing asthma attacks. 2

Although Amici tightly regulate ozone-forming

pollutants (called “precursors”) within their jurisdictions, sources of air pollution in dozens of “upwind”

States emit precursors that travel with the wind—sometimes thousands of miles—into Amici’s “downwind”

jurisdictions. See Federal ‘‘Good Neighbor Plan’’ for the

2015 Ozone National Ambient Air Quality Standards,

88 Fed. Reg. 36,654, 36,670 (June 5, 2023). The interstate movement of ozone precursors involves a complex

web of pollution streams, sometimes numbering in the

thousands. See EME Homer City, 572 U.S. at 496-97.

Because many downwind States receive streams of

precursor pollution from more than one upwind State,

id. at 496, interstate ozone pollution “is a major determinant of local air quality,” S. Rep. No. 101-228, at 264

(1989). 3

Ozone precursors transported from upwind States,

such as Oklahoma and Utah, contribute substantially

to elevated ozone levels in downwind States, including

1 See, e.g., Okla. Div. of Env’t Quality, Ozone Alert and

Particulate Matter (PM) Alert (n.d.).

2 Nicholas Nassikas et al., Ozone-Related Asthma Emergency

Department Visits in the US in a Warming Climate, 183 Env’t Rsch.

no. 109206 (Apr. 2020).

3 For example, ozone transported from upwind States is

responsible for as much as 57 percent of the total ozone in Fairfield

County, Connecticut; 28 percent of the total ozone in Cook County,

Illinois; and 52 percent of the total ozone in Kenosha, Racine, and

Sheboygan Counties, Wisconsin—which struggle to meet federal

ozone standards. See EPA, Air Quality Modeling Technical Support

Document: 2015 Ozone NAAQS SIP Disapproval Final Action app.

D at D-2 (2023).

many of Amici’s jurisdictions. For example, Oklahoma’s

sources contribute up to 0.79 parts per billion (ppb) of

ozone to the Greater Houston metropolitan area. 4

Galveston County, which has an “F” rating for ozone

pollution from the American Lung Association, is home

to over 69,000 children and adults who suffer from

respiratory and cardiac diseases that make them

especially vulnerable to ozone pollution. 5

To offset this upwind pollution, downwind States

must further tighten their already stringent emissionscontrol regulations. As this Court has recognized,

squeezing further reductions from sources in downwind

States is typically costlier and less effective than requiring upwind sources to take common pollution-reduction

measures. See EME Homer City, 572 U.S. at 519-20.

Congress enacted the Act’s “good neighbor”

provision, 42 U.S.C. § 7410(a)(2)(D)(i)(I), to limit

interstate pollution and to address these disparities. See

EME Homer City, 572 U.S. at 497-99. When EPA

revises a national ambient air quality standard, each

State must submit a SIP consisting of permanent,

enforceable mea sures to ensure the State achieves and

maintains compliance with the federal standard. 42

U.S.C. § 7410(a)(1). The good-neighbor provision, id.

§ 7410(a)(2)(D)(i)(I), requires that each plan also prohibit emissions that will impede any other State’s compliance, see EME Homer City, 572 U.S. at 509. If EPA

determines that a SIP will not adequately control interstate pollution, in violation of the good-neighbor provision, EPA must disapprove it. 42 U.S.C. § 7410(c)(1).

Within two years of such disapproval, EPA must issue

4 EPA, Air Quality Modeling, supra, at app. C at C-2.

5 Am. Lung Ass’n, State of the Air 2024: Texas (2024) (click on

“Populations at Risk”).

a federal implementation plan (FIP) to replace the

inadequate SIP. Id.

2. The SIP Disapproval Rule

This case involves a single EPA rule that

disapproved twenty-one SIPs for failing to address goodneighbor obligations that arose after EPA revised the

federal ozone standards. In 2015, EPA set the maximum

acceptable concentration of ozone at 70 ppb. 80 Fed. Reg.

at 65292. This revision triggered a requirement that

States update their SIPs. See 42 U.S.C. § 7410(a)(1).

EPA explained that all States would be able to

identify and address their good-neighbor obligations

using the same four-step framework developed by EPA

and upheld by this Court in EME Homer City, 572 U.S.

at 500-03, 519-20. 6 EPA also offered to prepare the

nationwide modeling necessary for the first two steps of

that framework. The modeling would first identify the

downwind areas that were projected not to attain or

maintain the new ozone standards, and then identify

the upwind States that were “linked” to those downwind

areas by greater-than-de-minimis amounts of pollution.7

EPA issued the first version of this modeling in

2017. See Notice of Availability of the Environmental

Protection Agency’s Preliminary Interstate Ozone

Transport Modeling Data, 82 Fed. Reg. 1733 (Jan. 6,

2017). Oklahoma, Utah, and nearly every other State

used this modeling to prepare their SIPs. See Air Plan

Disapproval; Arkansas, Louisiana, Oklahoma, and

6 Mem. from Janet McCabe, Acting Assistant Adm’r, EPA, to

Regional Administrators, Regions 1-10; Attachment: How Air Agencies and the EPA Will Move Forward to Implement the 2015 Ozone

Standards 6-7 (Oct. 1, 2015).

7 Id.

Texas, 87 Fed. Reg. 9798, 9816 (Feb. 22, 2022); Air Plan

Disapproval; Utah, 87 Fed. Reg. 31470, 31475 (May 24,

2022).

The modeling revealed that about half of the States

had no new good-neighbor obligations. See 88 Fed. Reg.

at 9362. These States were not projected to contribute

greater-than-de-minimis amounts of ozone—defined as

one percent of the air-quality standard, or 0.70 ppb—to

the identified downwind areas. See, e.g., Air Plan

Approval; [Idaho], 85 Fed. Reg. 65722, 65724 (Oct. 16,

2020). EPA began approving these SIPs in 2018. See 88

Fed. Reg. at 9362.

The modeling showed that the remaining States

were projected to contribute more than 0.70 ppb of ozone

pollution to downwind areas. These States were required

to evaluate whether using common pollution-control

technologies could reduce their contributions in a costeffective manner. If so, their SIPs would need to require

the use of those technologies (or other technologies that

would reduce pollution by an equivalent amount). Under

the Act’s cooperative federalism structure, States were

free to adopt the “mix” of technologies that made sense

for their individual State. See Train v. Natural Res. Def.

Council, Inc., 421 U.S. 60, 79 (1975).

Instead, many States submitted SIPs asking EPA

to disregard the contributions that the modeling had

already confirmed. For example, many States argued

that the 0.70 ppb threshold was too low, and instead

argued that a more forgiving threshold of 1.0 ppb should

apply. 8 Other States argued that EPA should disregard

8 See, e.g., 87 Fed. Reg. at 9819-20 (Oklahoma); 87 Fed. Reg. at

31476 (Utah); Air Plan Disapproval; [Alabama], 87 Fed. Reg. 64412,

64423-24 (Oct. 25, 2022); 87 Fed. Reg. at 9804 (Arkansas); Air Plan

(continues on next page)

their contributions if emissions from Canada or Mexico

also affected the same downwind area.9 Still other States

contended they did not have to evaluate common

pollution-reduction technologies because EPA should

deem an existing federal program—which addressed an

earlier, weaker ozone standard—to satisfy the new

standard. 10

EPA proposed to disapprove these SIPs, applying “a

consistent set of policy judgments across all states.”

E.g., 87 Fed. Reg. at 31472 (Utah). For instance, EPA

determined to continue applying the 0.70 ppb threshold

to all States. E.g., id. at 31474. EPA determined that

pollution from Canada and Mexico did not excuse goodneighbor obligations under the Act. E.g., id. at 31482.

And EPA determined that the prior federal program did

not demonstrate compliance with the new standard.

See, e.g., 87 Fed. Reg. at 9822-23 (Oklahoma). To support

this determination, EPA cited updated nationwide

modeling, which factored into the prior federal program.

Id. at 9823.

Disapproval; Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, 87 Fed. Reg. 9838, 9845-46, 9847, 9870-71 (Feb. 22, 2022) (Illinois, Indiana, Michigan, Ohio); Air Plan Disapproval; Kentucky, 87

Fed. Reg. 9498, 9509 (Feb. 22, 2022); 87 Fed. Reg. at 9811 (Louisiana); Air Plan Disapproval; [Alabama, Mississippi, Tennessee], 87

Fed. Reg. 9545, 9557 (Feb. 22, 2022) (Mississippi).

9 See, e.g., 87 Fed. Reg. at 31477 (Utah); see also 88 Fed. Reg.

at 9378 (observing that Arkansas, California, Illinois, Indiana,

Kentucky, Michigan, Missouri, Ohio, Utah, Wyoming, and West

Virginia raised this argument).

10 See, e.g., 87 Fed. Reg. at 9822-23 (Oklahoma); 87 Fed. Reg.

at 64425-26 (Alabama); 87 Fed. Reg. at 9857 (Indiana); 87 Fed. Reg.

at 9512 (Kentucky); Air Plan Disapproval; New York and New

Jersey, 87 Fed. Reg. 9484, 9494 (Feb. 22, 2022) (New York).

EPA also proposed to find that the D.C. Circuit

would be the appropriate venue for judicial review if the

disapprovals were finalized—for two independent reasons. First, EPA might publish the SIP disapprovals

together in a single final action, rendering that action

“nationally applicable,” 42 U.S.C. § 7607(b). E.g., 87 Fed.

Reg. at 31484 n.65 (Utah). Second, and in any event,

EPA proposed to publish a finding that the final disapprovals were “based on a determination of nationwide

scope or effect,” 42 U.S.C. § 7607(b). E.g., 87 Fed. Reg.

at 31484.

One year later, EPA published the SIP Disapproval

Rule, a single final action finalizing the disapprovals for

twenty-one States. See 88 Fed. Reg. 9336. The Rule

contained published findings that it was both “nationally

applicable” and “based on a determination of nationwide

scope or effect.” Id. at 9380. The Rule was “nationally

applicable” because it applied “common, nationwide

analytical methods” to disapprove SIPs for “21 states

located across a wide geographic area in eight of the ten

EPA Regions and ten Federal judicial circuits.” Id. The

Rule was “based on a determination of nationwide scope

or effect” because it was based on “a common core of

nationwide policy judgments and technical analysis

concerning the interstate transport of pollutants.” Id.

3. This litigation

Several States and industries filed petitions for

review of the SIP Disapproval Rule in seven different

regional circuits. Each petition purported to seek only

partial review. For example, Utah’s petition stated that

it sought review of “only the portion of the final rule

disapproving Utah’s State Implementation Plan.” Pet.

2, Utah v. EPA, No. 23-9509 (10th Cir. Feb. 13, 2023).

Several challengers—including petitioners here—also

filed protective petitions for review in the D.C. Circuit. 11

EPA moved to transfer the petitions to the D.C.

Circuit, arguing that the Rule was both “nationally

applicable” and, in the alternative, “based on a determination of nationwide scope or effect.” See 42 U.S.C.

§ 7607(b)(1). Three circuits deferred the motions to

merits panels. See Order, Nevada Cement Co. v. EPA,

No. 23-682 (9th Cir. July 3, 2023), ECF No. 27; Order,

Utah v. EPA, No. 23-9509 (10th Cir. Apr. 27, 2023), ECF

No. 93; Order, Alabama v. EPA, No. 23-11173 (11th Cir.

July 12, 2023), ECF No. 24. One circuit denied the

motion without explanation. Order, Arkansas v. EPA,

No. 23-1320 (8th Cir. Apr. 25, 2023), Doc. #5269098.

And three circuits issued opinions denying the motion,

over strong dissents. West Virginia v. EPA, 90 F.4th 323

(4th Cir. 2024); Texas v. EPA, No. 23-60069, 2023 WL

7204840 (5th Cir. May 1, 2023) (per curiam) (“Texas

2023”); Kentucky v. EPA, No. 23-3216, 2023 WL

11871967 (6th Cir. July 25, 2023).

After merits briefing, a unanimous panel of the

Tenth Circuit determined that the Act’s venue provision

required transfer of the petitions before it to the D.C.

Circuit. The court concluded that the Rule was nationally applicable on its face because it disapproved SIPs

“from 21 states across the country—spanning eight

EPA regions and ten federal judicial circuits”—which

had “all failed to comply with the good-neighbor provision.” Pet. App. 12a. The Tenth Circuit emphasized the

deeply interrelated nature of the SIP disapprovals—

11 See, e.g., Pet., Utah v. EPA, No. 23-1102 (D.C. Cir. Apr. 13,

2023), Doc. #1994857; Pet., Oklahoma v. EPA, No. 23-1103 (D.C.

Cir. Apr. 14, 2023), Doc. #1994883; Pet., PacifiCorp v. EPA, No. 231112 (D.C. Cir. Apr. 14, 2023), Doc. #1995594.

explaining that the Rule applied “a uniform statutory

interpretation and common analytical methods” to

“overlapping and interwoven linkages between upwind

and downwind states in a consistent manner.” Pet. App.

12a-13a. The court rejected petitioners’ attempt to challenge only a portion of the Rule because “the manner in

which a petitioner frames their challenge does not alter

the court in which the petition belongs.” Pet. App. 14a

(quotation and alteration marks omitted).

The Tenth Circuit acknowledged that the Fourth,

Fifth, and Sixth Circuits had retained venue, but

explained that those courts had erred by straying from

the statute’s text and applying “a petition-focused

approach that we and other circuits have rejected.” Pet.

App. 17a. The Tenth Circuit noted that this “misdirected approach,” if accepted, would result in multiple

circuit courts “ruling on issues arising from the same

nationwide EPA rule, thereby defeating the statute’s

purpose to centralize judicial review of nationally applicable actions in the D.C. Circuit.” Pet. App. 18a.

Given its finding that the Rule was “nationally

applicable,” the court did not reach the independent,

alternative ground that the Rule is based on a determination of nationwide scope or effect. Pet. App. 19a.

This Court granted certiorari. 12

12 In the same order, this Court also granted certiorari in

another case interpreting the same statutory venue provision. See

EPA v. Calumet Shreveport Refining LLC, No. 23-1229.

SUMMARY OF ARGUMENT

I. The Tenth Circuit correctly held that the SIP

Disapproval Rule, which applies to twenty-one States

spanning ten judicial circuits, is nationally applicable.

Typically, EPA approves or disapproves individual SIPs

in State-specific actions. But when, as here, EPA

addresses a nationwide problem, such as the long-range

movement of pollution across state lines, it may disapprove multiple SIPs, or promulgate multiple FIPs, in a

single action. Courts have consistently held that such a

final action is “nationally applicable,” contrary to the

contentions of petitioners and their amici.

Contrary to petitioners’ arguments, the SIP

Disapproval Rule—not the individual disapproval determinations therein—is the “action” to which the venue

provision must be applied. The statute does not permit a

petitioner to select a local or regional venue by purporting to challenge only a portion of a nationally applicable

action. Moreover, when courts have confronted the

question whether judicial review should be unitary or

piecemeal, courts have generally applied a test that

examines, among other things, whether the agency decision arises from interrelated administrative proceedings and whether the administrative record would be

required to be filed in more than one court. Applying

that sensible test in this context demonstrates that the

entire SIP Disapproval Rule is the proper object of

review because each disapproval arises from interrelated agency proceedings about the same interstate

ozone transport problem, and is based on common materials, such as nationwide modeling data, that would

need to be filed in each court of review.

II. In the alternative, the Tenth Circuit’s judgment

should be affirmed on the ground that the Rule is based

on multiple determinations of nationwide scope or effect.

These determinations include (but are not limited to)

the application of a uniform numerical threshold to

establish linkages between upwind States and downwind areas; the rejection of legal arguments about Canadian and Mexican emissions; and the conclusion,

supported by nationwide modeling data, that preexisting measures taken under an earlier, weaker ozone standard do not satisfy any State’s good-neighbor obligations

under the new ozone standards.

The SIP Disapproval Rule litigations, in which

nearly every petitioner has sought review of these common determinations, confirms that they are “of nationwide scope or effect.” Review of identical nationwide

issues across multiple circuits was the precise problem

that Congress sought to avoid when it amended the

venue provision in 1977. This Court must give effect to

Congress’s clear and pragmatic choice.

ARGUMENT

THE SIP DISAPPROVAL RULE IS

NATIONALLY APPLICABLE.

A. The Rule Spans Twenty-One States

and Ten Judicial Circuits.

The Tenth Circuit correctly determined that the

SIP Disapproval Rule, which spans twenty-one States

in ten judicial circuits, is “nationally applicable,” 42

U.S.C. § 7607(b)(1). See Pet. App. 12a. Courts have long

agreed that when the entities regulated by an EPA

action are located in more than one judicial circuit, the

action is “nationally applicable” on its face, and review

lies only in the D.C. Circuit. See Southern Ill. Power

Coop. v. EPA, 863 F.3d 666, 671 (7th Cir. 2017) (action

involving areas in twenty-four States); Texas v. EPA,

No. 10-60961, 2011 WL 710598, at *3 (5th Cir. Feb. 24,

2011) (“Texas 2011”) (action involving SIPs of thirteen

States); ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194,

1197 (10th Cir. 2011) (action involving thirty-one areas

reaching “from coast to coast”); West Virginia Chamber

of Com. v. Browner, 166 F.3d 336, 1998 WL 827315, at

*5-6 (4th Cir. 1998) (table case) (action involving SIPs

of twenty-two States and District of Columbia). This

straightforward construction effectuates Congress’s

“obvious aim” to centralize judicial review of national

issues in the D.C. Circuit. See Southern Ill. Power Coop.,

863 F.3d at 673.

Without discussing these precedents, petitioners

point to language in the statute about action “in approving or promulgating any implementation plan under

section 7410 of this title,” and argue that this language

requires review of all SIP-related actions in regional

circuits. Okla. Br. 22-27; PacifiCorp Br. 29-30. But petitioners ignore the rest of the sentence containing that

language, and the sentence’s relationship to the statute

as a whole. The sentence lists several types of actions

that are primarily (but not exclusively) issued on a

facility- or state-specific basis.13 The sentence then

For instance, the statute lists “any order under section

7411(j)” of the Act as reviewable in a regional circuit. 42 U.S.C.

§ 7607(b)(1). Section 7411(j) allows EPA to waive application of the

federal new source performance standards to allow a facility to use

an innovative pollution-control technology. See, e.g., Waiver from

New Source Performance Standard for Homer City Unit No. 3 Steam

Electric Generating Station, 46 Fed. Reg. 55975 (Nov. 13, 1981)

(waiver for single Pennsylvania coal plant). On occasion, however,

such waivers are granted to similar sources across multiple States.

See, e.g., Innovative Technology Waivers for Four Automobile and

Light-Duty Truck Surface Coating Operations, 50 Fed. Reg. 36830

(continues on next page)

states that petitions for review of these actions, as well

as “any other final action of the Administrator . . . which

is locally or regionally applicable” may be filed only in

“the appropriate circuit.” 42 U.S.C. § 7607(b)(1)

(emphasis added). Plainly, then, Congress intended this

sentence to include only “local or regional actions under

specifically enumerated provisions.” See Harrison v.

PPG Indus., Inc., 446 U.S. 578, 590 (1980) (emphasis

added); see also Texas 2023, 2023 WL 7204840, at *4

(observing that not all SIP-related actions are local or

regional). But where national actions issued under the

specifically enumerated provisions are at issue, review

belongs in the D.C. Circuit.

A case from the Fifth Circuit is instructive. In 2010,

EPA issued an action finding thirteen SIPs inadequate

and calling on those States to submit corrected SIPs.

See Action to Ensure Authority to Issue Permits Under

the Prevention of Significant Deterioration Program to

Sources of Greenhouse Gas Emissions, 75 Fed. Reg.

77698 (Dec. 13, 2010). Texas-based challengers filed

petitions for review in the Fifth Circuit, purporting to

challenge only that portion of the action related to

Texas’s SIP. See Texas 2011, 2011 WL 710598, at *3. The

challengers contended that venue was proper because

the Act’s venue provision states that action “approving

or promulgating any implementation plan under section

7410 of this title” must be reviewed in a regional circuit—the same argument that petitioners make here.

See id. at *1, 4 & n.10.

The Fifth Circuit correctly rejected that argument.

Among other things, the court explained that the statutory language on which the challengers relied encom(Sept. 9, 1985) (granting waivers to automotive plants in Georgia,

Michigan, Minnesota, and Missouri).

passed only SIP-related actions “‘which run only to one

air quality control region.’” Id. at *4 (quoting S. Rep. No.

91-1196, at 41 (1970)). The Fifth Circuit further ruled,

as many of its sister circuits had, that “EPA action

involving the SIPs of numerous far-flung states are

‘nationally applicable’ and reviewable only in the D.C.

Circuit.” Id. at *5 (citing West Virginia Chamber of Com.,

166 F.3d 336; Puerto Rican Cement Co. v. EPA, 889 F.2d

292, 300 (1st Cir. 1989)). That interpretation, the court

reasoned, honored “a clear congressional intent to

centralize review of national SIP issues in the D.C. Circuit.” Id. at *4 (quotation marks omitted). That faithful

interpretation of the statute should control here. 14

Some of petitioners’ amici misleadingly suggest that,

since 1977, an unbroken chain of jurisprudence has

interpreted the same statutory language to mean that

SIP approvals and disapprovals are exclusively “locally

or regionally applicable” actions. 15 See Br. for Amici

14 In its decision about the SIP Disapproval Rule here, the Fifth

Circuit not only endorsed the holding in Texas 2011 but also reiterated—contrary to petitioners’ arguments—that “some final actions

related to SIPs may be ‘nationally applicable’” where they “uniformly

apply to a broad swath of States.” Texas 2023, 2023 WL 7204840,

at *4.

However, the Fifth Circuit then circularly and erroneously

focused only on the “three SIP disapprovals at issue” in the petitions at the Fifth Circuit, and held that these three disapprovals

local or regional because they “involve only the regulation of Texas,

Louisiana, and Mississippi.” Id. at *5. As the Tenth Circuit’s decision here correctly concluded, this petition-focused approach finds

no support in the statute. Pet. App. 17a.

15 Prior to 1977, the D.C. Circuit had held that “Congress did

not intend that all suits involving approval of state implementation

plans be brought in the judicial circuit where the state is located.”

Natural Res. Def. Council, Inc. v. EPA, 475 F.2d 968, 969 (D.C. Cir.

1973) (per curiam).

Arkansas et al. 1, 5-6. But the cases on which petitioners’ amici rely involved actions covering only one

State. See Sierra Club v. EPA, 47 F.4th 738, 743-45

(D.C. Cir. 2022); American Rd. & Transp. Builders

Ass’n v. EPA, 705 F.3d 453, 455-56 (D.C. Cir. 2013).

Those cases do not control here, where the action covers

multiple States located in different regional circuits.

In any event, amici are incorrect. The Third Circuit

has held that a rule disapproving the SIPs of fifteen

States under the good-neighbor provision was reviewable only in the D.C. Circuit. National Parks Conservation Ass’n v. EPA, 803 F.3d 151, 157, 159-60 (3d Cir.

2015). And the Fifth Circuit has transferred to the D.C.

Circuit petitions for review of a rule disapproving fourteen SIPs for failure to comply with the Act’s regional

haze program. 16 Order, Luminant Generation Co. v.

EPA, No. 12-60617 (5th Cir. May 3, 2013), ECF No. 841. Moreover, at least one of these amici have challenged

disapprovals of their SIPs in the D.C. Circuit. See, e.g.,

Westar Energy, Inc. v. EPA, 608 F. App’x 1 (D.C. Cir.

2015) (Kansas); see also Pet’r’s Unopp. Mot. to Transfer,

Georgia v. EPA, No. 11-14273 (11th Cir. Oct. 14, 2011),

ECF No. 4 (requesting transfer of Georgia’s SIP disapproval to the D.C. Circuit). Indeed, it is the decisions

retaining venue in this litigation that “depart from all

relevant precedent without adequate justification or

explanation.” West Virginia, 90 F.4th at 335 (Thacker,

J., dissenting from Fourth Circuit’s decision retaining

review of SIP Disapproval Rule).

16 The regional haze program seeks to improve visibility in

shared areas to which multiple States contribute pollution, such as

national parks. See Utility Air Regul. Grp. v. EPA, 471 F.3d 1333,

1334 (D.C. Cir. 2006).

Petitioners’ amici’s argument is further contravened

by the fact that the statute also speaks to actions

“promulgating any implementation plan”—i.e., actions

in which EPA issues a substitute FIP to replace a deficient or inadequate SIP. See supra at 5-6 (discussing

this process). When EPA has issued an action “promulgating” multiple FIPs, courts have concluded that such

actions are “nationally applicable” because of their broad

geographical reach. See, e.g., Order, Kentucky Energy &

Env’t Cabinet v. EPA, No. 23-3605 (6th Cir. Nov. 9, 2023),

ECF No. 19 (rule promulgating twenty-three FIPs was

“nationally applicable”); see also Order, Energy Transfer

LP v. EPA, No. 23-2510 (7th Cir. Nov. 6, 2023), ECF No.

25 (transferring review of same rule to D.C. Circuit);

Judgment, Cedar Falls Utils. v. EPA, No. 16-4504 (8th

Cir. Feb. 22, 2017), ECF No. 4503949 (transferring petition for review of rule promulgating twenty-two FIPs).

These decisions, like the Tenth Circuit’s decision here,

correctly give effect to the entire statute.

B. The Rule Is the Relevant “Action.”

Petitioners err in claiming that each SIP

disapproval decision within the SIP Disapproval Rule

is a separate “action” requiring its own venue assessment. See Okla. Br. 22-23; PacifiCorp Br. 30-32. The

Tenth Circuit correctly rejected this approach as

contrary to the statute’s text, which establishes venue

based on EPA’s “action” rather than the purported scope

of a petitioner’s challenge. Pet. App. 18a; see also EPA

Br. 22-27. Other courts interpreting the venue provision

have reached the same conclusion. See Southern Ill.

Power Coop., 863 F.3d at 671 (rejecting argument that

rule was “amalgamation of many different locally or

regionally applicable agency actions”); West Virginia

Chamber of Commerce, 1998 WL 827315, at *6 (reject-

ing argument that SIP call was “nothing more than

numerous separate EPA actions on state-specific implementation plans”); see also ATK Launch Sys., 651 F.3d

at 1200 (rejecting argument that rule containing

multiple area designations was “mere amalgamation of

numerous local actions”). Petitioners’ view would

improperly allow challengers to select venue through

artful pleading in their petition—contrary to Congress’s

intent to focus solely on the agency’s action.

Petitioners incorrectly argue that the relevant

“action” is defined by the venue provision itself as the

approval or disapproval of an individual SIP. See Okla.

Br. 22-23; PacifiCorp Br. 30-32. To the contrary, the

statute contains no definitional provision for the word

“action.” And the statute contemplates that a state plan

approval may be a component of an action, rather than

necessarily coextensive with it. See 42 U.S.C.

§ 7607(b)(1) (discussing “action in approving or promulgating any implementation plan” (emphasis added)).

Indeed, petitioners here originally identified the “final

action” as the entire SIP Disapproval Rule: their petitions stated that they were challenging “only the portion

of the final action” disapproving a particular implementation plan. See, e.g., Pet. 2, PacifiCorp v. EPA, No. 239512 (10th Cir. Feb. 23, 2023), Doc. No. 1-1.

Despite the lack of a statutory definition for “action,”

the proper object of judicial review in a notice-and-comment rulemaking is often “perfectly clear.” 33 Wright &

Miller, Federal Practice & Procedure: Judicial Review

§ 8392 (2d ed. June 2024 update) (Westlaw). But in the

context of the multicircuit petition statute—which

provides venue rules when multiple petitions for review

of “the same order” of an agency have been filed in different circuits, 28 U.S.C. § 2112(a)—courts have sometimes

faced the issue of whether the proper object of judicial

review is a unitary item (here, the SIP Disapproval Rule)

or instead individual decisions contained within that

item (here, each individual disapproval decision). 17 To

address that issue, courts apply a multifactor test keyed

to the nature of judicial review and the underlying

agency administrative process that culminated in the

order being challenged. Specifically, to determine

whether two petitions seek review of “the same order,”

courts look to (i) the “unitary form of the order,” (ii) the

agency’s “own characterization of its action,” (iii) “the

origin of the actions in the same or interrelated

proceedings before the agency,” and (iv) “the necessity

of the agency’s filing a single record in more than one

court.” See Natural Res. Def. Council, Inc. v. EPA, 673

F.2d 392, 399 (D.C. Cir. 1980) (per curiam). This test

seeks to avoid an outcome where scarce judicial

resources are unnecessarily consumed by parallel review

of what is fundamentally the same agency decision. At

the same time, the test does not require a court to defer

blindly to the agency’s chosen form of publication.

An example illustrates this sensible approach. In

Bristol Laboratories v. Richardson, a drug manufacturer argued that an FDA order decertifying fifteen

drugs in the same class was “not really a unitary order

based on a unitary record” but rather “a series of orders,

involving different manufacturers, drugs, and evaluations.” 456 F.2d 563, 564 (1st Cir. 1971) (Coffin, J.). The

court rejected that argument, reasoning that the same,

consolidated order had decertified several “substantially

17 Although § 2112 uses the term “order,” regulations and

rulemakings are treated in the same manner under the statute. See,

e.g., Saturn Airways, Inc. v. Civil Aeronautics Bd., 476 F.2d 907,

908 (D.C. Cir. 1973) (per curiam); see also U.S. Jud. Panel on Multidistrict Litig., Multicircuit Petitions (as of Jan. 15, 2025).

similar” drugs and had done so for the purpose of achieving “rational and comprehensive” regulation of a specific

drug class—namely, drugs that combined antibiotics

and over-the-counter medications. Id.

Here, these same commonsense factors confirm

that the SIP Disapproval Rule should be treated as a

single unitary action. First, the SIP Disapproval Rule

was issued and published in a “unitary form.” See

Natural Res. Def. Council, 673 F.2d at 399. There is

nothing surprising or concerning about this choice. By

its nature, the interstate ozone problem can involve

thousands of “overlapping and interwoven linkages

between upwind and downwind States.” See EME

Homer City, 572 U.S. at 496-97; see also id. at 514 (noting “thorny causation problem” presented by interstate

pollution). Because of the inherently national scope of

long-range pollution, EPA has often published goodneighbor SIP disapprovals together in the same rule.

See, e.g., Federal Implementation Plans: Interstate

Transport of Fine Particulate Matter and Ozone and

Correction of SIP Approvals, 76 Fed. Reg. 48208, 4822021 (Aug. 8, 2011).

Second, EPA here correctly described the Rule as

resting on a common legal framework, a common set of

modeling data performed on a nationwide basis, and a

common suite of nationwide legal and factual determinations that addressed identical legal arguments from a

wide cross-section of upwind States. See supra at 9.

Third, the SIP disapprovals at issue here originate

“in the same or interrelated proceedings before the

agency,” which all aim to address good-neighbor responsibilities for ozone arising from the 2015 ozone standards. See Natural Res. Def. Council, 673 F.2d at 399.

Indeed, in evaluating whether a prior good-neighbor SIP

call was one “nationally applicable” action or several

“locally or regionally applicable” actions, the Fourth Circuit gave the interrelatedness of the agency’s decisions

substantial weight, explaining that the “nationwide

scope and interdependent nature of the problem, the

large number of states, spanning most of the country,

being regulated, [and] the common core of knowledge

and analysis involved in formulating the rule . . . all

combine to make this a nationally applicable rule.” West

Virginia Chamber of Com., 1998 WL 827315, at *7.

Fourth, the same administrative record documents

—such as the nationwide modeling data, technical support documents, and EPA’s response to comments document—are critical to reviewing all of EPA’s disapprovals here. Treating each disapproval as the relevant

“action” requires filing these same documents in seven

different circuits for scrutiny by at least twenty-one different jurists. 18 See Natural Res. Def. Council, 673 F.2d

at 399. Each of these four factors confirms that the

proper object of judicial review is the SIP Disapproval

Rule as a whole.

Petitioners resist this straightforward conclusion,

arguing that treating the SIP Disapproval Rule as a

single action would allow EPA to “manipulate venue” by

publishing two completely unrelated actions—such as a

SIP approval for Oklahoma and a “nonferrous smelter

order” for Ohio—together in the same Federal Register

18 These documents have been posted to a single, unified docket.

See Air Plan Disapproval; Interstate Transport of Air Pollution for

the 2015 8-hour Ozone National Ambient Air Quality Standards,

Docket ID No. EPA-HQ-OAR-2021-0663.

notice. 19 See Okla. Br. 31. But there is no indication that

EPA has published or would publish two unrelated decisions in the same Federal Register notice for venue

purposes. If EPA did so, the factors that courts have long

applied would lead to the conclusion that those decisions

were separate. For instance, a nonferrous smelter order

for Ohio and a SIP approval for Oklahoma would neither

originate “in the same or interrelated proceedings before

the agency” nor share “a single record.” See Natural Res.

Def. Council, 673 F.2d at 399.

II. IN THE ALTERNATIVE, THE SIP DISAPPROVAL

RULE IS BASED ON MULTIPLE DETERMINATIONS

OF NATIONWIDE SCOPE OR EFFECT.

A. The Rule Contains Multiple Determinations

of Nationwide Scope or Effect.

In the alternative, even if the Court were to conclude

that the SIP Disapproval Rule is locally or regionally

applicable, the Tenth Circuit’s judgment should be

affirmed on the ground that the Rule is based on multiple determinations of nationwide scope or effect. See 42

U.S.C. § 7607(b)(1). This Court may consider this alternative ground for affirmance because it was raised by

EPA below. See, e.g., Washington v. Confederated Bands

& Tribes of Yakima Indian Nation, 439 U.S. 463, 476

n.20 (1979); Dandridge v. Williams, 397 U.S. 471, 475

n.6 (1970). Amici herein discuss three nationwide determinations upon which the Rule was based. These examples are not exhaustive.

19 A “nonferrous smelter order” is a now-defunct type of order

that permitted an older smelter to delay compliance with the 1977

Clean Air Act amendments until no later than 1988. See Kennecott

Corp. v. EPA, 684 F.2d 1007, 1010 (D.C. Cir. 1982).

1. One-percent contribution threshold

EPA’s decision to disapprove each SIP was based on

a nationwide determination that States were “linked”—

and thus presumptively had good-neighbor obligations—

if their contributions to downwind ozone problems

exceeded a threshold of one percent of the federal ozone

standards, or 0.70 ppb. 88 Fed. Reg. at 9342, 9370-75.

EPA’s determination gave this threshold nationwide

effect: where States’ own submissions had applied this

one-percent threshold, EPA agreed that its use was

appropriate. See, e.g., Air Plan Disapproval; West Virginia, 87 Fed. Reg. 9516, 9525 (Feb. 22, 2022). And

where States had attempted to rely on a higher

contribution threshold (including through state-specific

demonstrations), EPA rejected those arguments, and

applied the one-percent contribution threshold instead.

See, e.g., 87 Fed. Reg. at 31478 (Utah); 87 Fed. Reg. at

9819 (Oklahoma).

This determination was quintessentially nationwide

in scope. As EPA explained, much of the interstate ozone

transport problem in the United States was “still the

result of the collective impacts of contributions from

many upwind states.” 88 Fed. Reg. at 9371. The “great

number of geographically dispersed emissions sources”

required EPA to use a single threshold to capture all

“greater-than-de minimis contributors” without unfairly

singling out “the largest single or few upwind contributors.” Id.

Moreover, the one-percent contribution threshold

was clearly a “basis and rationale for every SIP submission covered by this final SIP disapproval action.” Id. at

9374. If a State’s contributions did not exceed the onepercent threshold, EPA approved its SIP. By contrast,

if a State’s contributions did exceed the one-percent

threshold, EPA proceeded to the next step of the

analysis. Application of the threshold was thus a “butfor” cause, or a “necessary condition,” of the action. See

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63 (2007).

Indeed, petitioners in nearly every SIP Disapproval

Rule case have challenged EPA’s determination to

apply a one-percent threshold—further underscoring

that this was a “determination of nationwide scope or

effect” under section 7607(b)(1). 20 Allowing multiple

circuits to review the same numerical threshold that

EPA applied nationwide is plainly not what Congress

intended when it enacted the “nationwide scope or effect”

prong, which promotes uniformity by channeling review

20 See, e.g., Opening Br. for Tex. State Pet’rs 25-28, Texas v.

EPA, No. 23-60069 (5th Cir. May 30, 2023), ECF No. 328; Br. of

Appellant La. Dep’t of Env’t Quality & State of La. 35-36, Texas,

No. 23-60069 (May 30, 2023), ECF No. 332; Br. of La. Indus. Pet’rs

29-30, Texas, No. 23-60069 (May 30, 2023), ECF No. 333; Miss.

Pet’rs’ Joint Opening Br. 25-36, Texas, No. 23-60069 (May 30,

2023), ECF No. 335; Merits Br. of the Commonwealth of Ky. 30-35,

Kentucky v. EPA, No. 23-3216 (6th Cir. Oct. 10, 2023), ECF No. 48;

Br. of Pet’r Ky. Energy & Env’t Cabinet 25-27, Kentucky Energy &

Env’t Cabinet v. EPA, No 23-3225 (6th Cir. Oct. 10, 2023), ECF No.

31-1; Pet’rs’ Opening Br. 29-32, Arkansas v. EPA, No. 23-1320 (8th

Cir. Aug. 10, 2023), Doc. No. 5305108; Pet’r’s Br. 30-33, Union Elec.

Co. v. EPA, No. 23-1751 (8th Cir. Aug. 14, 2023), Doc. No. 5305650;

Pet’rs’ Br. 46-49, ALLETE, Inc. v. EPA, No. 23-1776 (8th Cir. Aug.

11, 2023), Doc. No. 5305346; Pet’r Hybar LLC’s Opening Br. 31-36,

44-46, Hybar, LLC v. EPA, No. 23-1777 (8th Cir. Aug. 14, 2023),

Doc. No. 5305723; Pet’r’s Am. Br. 31-33, Arkansas League of Good

Neighbors v. EPA, No. 23-1778 (8th Cir. Aug. 14, 2023), Doc. No.

5305660; Prelim. Opening Br. of the State of Utah 30-32, Utah v.

EPA, No. 23-9509 (10th Cir. July 14, 2023), ECF No. 146; Prelim.

Pet’r Br. of Utah Indus. Pet’rs 23, 28-31, PacifiCorp v. EPA, No. 239512 (10th Cir. July 14, 2023), ECF No. 117; Prelim. Pet’rs’ Br. 3945, 50-53, Oklahoma v. EPA, No. 23-9514 (10th Cir. July 14, 2023),

ECF No. 90; Br. of Ala. & Indus. Pet’rs 25-36, Alabama v. EPA, No.

23-11173 (11th Cir. Sept. 20, 2023), ECF No. 35.

of all nationwide determinations to the D.C. Circuit. See

infra at 30-33.

Moreover, applying a 1.0 ppb contribution threshold

to some States and not to others could have anomalous

and unfair results. For instance, if the Eighth Circuit

were to hold that applying a 1.0 ppb nationwide threshold is appropriate, but the Tenth Circuit were to uphold

EPA’s application of the 0.70 ppb nationwide threshold,

Arkansas would have no responsibilities associated with

its contribution of 0.94 ppb of ozone to Galveston County,

Texas, whereas Oklahoma would have good-neighbor

obligations associated with its smaller contribution of

0.79 ppb of ozone to the same county. 21

2. International emissions

The Rule was also based on EPA’s nationwide

determination that international emissions (such as

those from Canada or Mexico) do not excuse a State

from complying with its statutorily mandated goodneighbor obligations. EPA did not consider emissions

from Canada or Mexico in analyzing linkages between

upwind States and downwind areas. 88 Fed. Reg. at

9353. Many different States proposed to rely on such

international emissions to excuse their own obligations,

and EPA uniformly rejected those arguments. See id. at

9378 (explaining that EPA responded to such arguments

from Arkansas, California, Illinois, Indiana, Kentucky,

Michigan, Missouri, Ohio, Utah, Wyoming, and West

Virginia). This determination was consistent with the

D.C. Circuit’s holding in Wisconsin v. EPA, 938 F.3d 303

(D.C. Cir. 2019), which had held that the word “contribute” in the good-neighbor provision does not require an

21 See EPA, 2016v3 DVs State Contributions (n.d.) (tab “2023gf

Ozone Contributions”; line 637, cells H & AN).

upwind State’s emissions to be the “but-for cause” of a

downwind area’s nonattainment, id. at 324-25 (rejecting

arguments about international emissions). See 88 Fed.

Reg. at 9378. That interpretation of the statute plainly

had nationwide effect, as did EPA’s reliance on the same

statutory interpretation in determining in this Rule

that international emissions do not excuse any State’s

good-neighbor obligations.

This determination was a “necessary condition” of

each disapproval. See Safeco Ins. Co., 551 U.S. at 63. The

States that relied on international emissions urged EPA

to rely on such emissions to disregard their linkages

altogether, or to find an absence of “significant contribution” under the statute. EPA’s rejection of that argument

was thus a necessary prerequisite to the agency’s conclusion in the Rule that these States possessed goodneighbor obligations that their SIPs failed to satisfy.

3. Preexisting control measures

EPA’s disapproval of each SIP was likewise based

on a nationwide determination that States could not

rely on their preexisting “on the books” control measures to comply with the new, more stringent ozone

standard. Instead, EPA determined that, once a morethan-de-minimis contribution had been established,

each State was required to assess whether common pollution-control measures available to that State’s sources

could reduce those contributions.

This determination was nationwide in scope. No

State with a disapproved SIP had proposed to take any

additional measures to fulfill its good-neighbor obligations, and many States simply listed their “on-the-books”

measures instead. See, e.g., 87 Fed. Reg. at 9528 (West

Virginia). EPA’s updated modeling data had already

expressly accounted for all “on-the-books” measures of

which EPA was aware, and to which individual States

had called EPA’s attention in their SIP submissions. Id.

at 9530. EPA’s updated modeling showed that, even

factoring in these measures, the disapproved States were

still expected to significantly contribute ozone to the

downwind States.

Moreover, nearly every petitioner in the SIP

Disapproval Rule litigation has challenged EPA’s reliance on this updated modeling data. 22 The fact that so

many different petitioners located in so many different

States raised such similar challenges, none of which

hinges on state-specific considerations, further confirms

that this determination was of nationwide scope or

effect.

22 See, e.g., Pet’r’s Opening Br. 43-53, West Virginia v. EPA,

No. 23-1418 (4th Cir. Feb. 27, 2024), ECF No. 63; Opening Br. for

Tex. State Pet’rs 34-39, Texas, supra; Br. of Appellant La. Dep’t of

Env’t Quality & State of La. 42-48, Texas, supra; Br. of La. Indus.

Pet’rs 38-42, Texas, supra; Miss. Pet’rs’ Joint Opening Br. 43-54,

Texas, supra; Merits Br. of the Commonwealth of Ky. 22-30, Kentucky, supra; Br. of Pet’r Ky. Energy & Env’t Cabinet 20-24, Kentucky, supra; Pet’r’s Br. 39-45, Union Elec. Co., supra; Pet’rs’ Br. 4546, ALLETE, Inc., supra; Pet’r Hybar LLC’s Opening Br. 27-31,

Hybar, LLC, supra; Pet’r’s Am. Br. 40-44, Arkansas League of Good

Neighbors, supra; see also Nev. Cement Co.’s Opposed Mot. to Stay

the Final Rule 7-12, Nevada Cement Co. v. EPA, No. 23-682 (9th

Cir. May 10, 2023), ECF No. 9.1.

B. Congress Amended the Venue Provision

to Avoid Precisely the Type of Chaotic

Litigation That Occurred Here.

Congress amended the Clean Air Act in 1977 to

prevent the precise problem that happened here: the

delay, chaos, and inefficiency caused by different

regional circuits each separately adjudicating challenges

to the same nationwide aspects of a single action.

From its beginning, the course of the SIP

Disapproval Rule litigation has violated Congress’s

obvious intent. Here, various States and industry

groups first lodged dozens of petitions for review in

seven regional circuit courts across the country—plus

multiple protective petitions for review in the D.C. Circuit. Each circuit received motions to transfer the petitions to the D.C. Circuit, as well as motions to stay the

Rule as applied only to particular States.

After this initial motion practice, which took as long

as one year, even the threshold issue of venue remained

largely unresolved. In three circuits, motions panels

issued unpublished orders that did not bind the merits

panels. In three other circuits, motions panels referred

the transfer motions to merits panels without deciding

whether venue was proper. And although EPA successfully pursued a settlement agreement in one circuit,

merits briefing and oral argument proceeded in the

remaining six circuits—largely on identical legal issues.

See supra at 25 n.20, 28 n.22.

As described in more detail in Amici’s brief in EPA

v. Calumet Shreveport Refining LLC, a second wave of

petitions hit the regional circuits after EPA issued a single final action promulgating FIPs to replace the SIPs

that had been found deficient in the SIP Disapproval

Rule. See Br. for Amici States and Local Governments

22-24, EPA v. Calumet Shreveport Refining LLC, No.

23-1229 (U.S. Dec. 20, 2024). That litigation produced

further absurdities, including one petitioner filing nine

petitions in five circuits to challenge different pieces of

the same EPA action, and another petitioner filing active

(not merely protective) petitions for review in both the

Sixth Circuit and the D.C. Circuit. See id.

The history of the venue provision makes

abundantly clear that the 1977 amendments were

enacted specifically to prevent such chaos and delay. As

originally enacted in 1970, the venue provision of the

Act provided, in relevant part, that an EPA action

“approving or promulgating any implementation plan”

could be filed only in the United States Court of Appeals

for the appropriate circuit.” Clean Air Act Amendments

of 1970, Pub. L. No. 91-604, sec. 12(a), § 307(b), 84 Stat.

1676, 1707-08. At that time, the provision contained no

mention of actions “based on a determination of nationwide scope or effect.” See Clean Air Act Amendments of

1977, Pub. L. No. 95-95, § 305(c)(2), (4), 91 Stat. 685,

776 (adding this language).

As this first iteration of the venue provision was

implemented, however, it became clear that “not every

question respecting [a state] implementation plan [was]

of purely local significance.” David P. Currie, Judicial

Review Under Federal Pollution Laws, 62 Iowa L. Rev.

1221, 1263 (1977). That uncertainty caused EPA to face

sprawling litigation across multiple circuits in response

to at least two rules involving SIPs. First, in 1972, EPA

promulgated a single rule approving state implementation plans in all fifty States, the District of Columbia,

and four U.S. territories. Petitions for review were filed

in ten judicial circuits challenging uniform determinations that EPA had applied to each plan. Venue was

settled only after the First Circuit and D.C. Circuit each

concluded that the petitions challenged nationwide

determinations, making the D.C. Circuit the appropriate circuit under the venue statute. See Currie, supra,

at 1263; Natural Res. Def. Council, Inc. v. EPA, 465 F.2d

492, 493 (1st Cir. 1972); Natural Res. Def. Council, 475

F.2d at 969.

Similarly, in 1974, EPA promulgated a rule containing SIP provisions for each State that classified certain

areas for the purpose of preventing them from “backsliding” out of compliance with the air quality standards. See Dayton Power & Light Co. v. EPA, 520 F.2d

703, 705 (6th Cir. 1975). Petitions for review were filed

in six circuits. Venue was settled only after the Sixth

Circuit, where the first petition had been filed,

concluded that the rule applied “uniformly throughout

the country,” making the D.C. Circuit the appropriate

venue under the statute. Currie, supra, at 1266 & n.300;

Dayton Power, 520 F.2d at 705.

When Congress held hearings about amending the

Clean Air Act, it heard testimony about these cases,

including testimony explaining that the then-existing

venue provision was vague and resulted in “useless

threshold litigation.” See Administrative Conference of

the United States, Recommendation 76-4: Judicial

Review Under the Clean Air Act and Federal Water

Pollution Control Act (1976), in Clean Air Act Amendments of 1977: Hr’g on S. 251, S. 252 & S. 253 Before the

S. Subcomm. on Env’t Pollution of the Comm. on Env’t

& Pub. Works, 95th Cong., 1st Sess. pt. 3, at 327, 331

(1977); see also id. at 248-355.

Congress ultimately amended the Act’s venue

provision in 1977 to address the voluminous and duplicative threshold litigation and resulting delay generated

by the question of where challengers should seek review

when, as had occurred in Natural Resources Defense

Council (1972) and Dayton Power, a seemingly local or

regional EPA action is based on nationwide determinations. To prevent this problem from recurring, Congress

amended the Act to give the D.C. Circuit exclusive jurisdiction over challenges to a locally or regionally applicable EPA action “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.” Pub. L. No.

95-95, § 305(c)(4), 91 Stat. at 776.

In enacting this amendment, Congress considered

and rejected an approach that, like petitioners’ approach

here, would have resulted in regional circuits reviewing

EPA actions that approve or promulgate state implementation plans even when those actions involve broadly

applicable determinations of nationwide scope or effect.

Congress received a recommendation from the Administrative Conference of the United States (ACUS) 23 to

amend the Act by making “explicit that the Administrator’s action in approving or promulgating state implementation plans is reviewable in the circuit containing

the state whose plan is challenged.” Administrative

Conference, supra, at 249.

Congress rejected that approach, and instead

adopted the view of G. William Frick, a member of ACUS

and general counsel of EPA, who recommended that,

“where ‘national issues’ are involved” in state implementation plans, those plans “should be reviewed in the

D.C. Circuit.” Recommendations of the Administrative

Conference of the United States, 41 Fed. Reg. 56767,

23 ACUS is an independent agency that studies and recommends

improvements in federal administrative procedure, among other

things. See 5 U.S.C. § 594(1).

56768 (Dec. 30, 1976); see id. at 56768-69; H.R. Rep. No.

95-294, at 324 (1977). As Frick explained, although SIP

actions “usually involve issues peculiar to the affected

States, such actions sometimes involve generic determinations of nationwide scope or effect,” such as “the establishment or application of uniform principles for all

States.” 41 Fed. Reg. at 56769. And where state implementation plans involve such national issues, Frick

explained, review should be centralized in the D.C.

Circuit. See id. at 56769. Congress ultimately followed

Frick’s approach.

This drafting history and context plainly establish

that Congress added the “nationwide scope or effect”

prong to the venue statute to avoid precisely the situation that arose here and that petitioners seek to perpetuate—i.e., piecemeal review of a unified action in each

regional circuit, regardless of whether such action

involved uniform determinations of nationwide scope or

effect. Congress instead enacted a law that centralized

review of such actions in the D.C. Circuit to promote

uniformity and prevent chaos and delay. The Court

“must give effect to, not nullify, Congress’ choice.” See

Gallardo ex rel. Vassallo v. Marstiller, 596 U.S. 420, 431

(2022).

CONCLUSION

The Tenth Circuit’s judgment should be affirmed.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ELIZABETH A. BRODY

Assistant Solicitor General

MORGAN A. COSTELLO

CLAIBORNE E. WALTHALL

Assistant Attorneys General

barbara.underwood@ag.ny.gov

January 2025

* Counsel of Record

(Counsel listing continues on next page.)

KRIS MAYES

Attorney General

State of Arizona

2005 N. Central Ave

Phoenix, AZ 85004

ANTHONY G. BROWN

Attorney General

State of Maryland

200 Saint Paul Pl.

Baltimore, MD 21202

WILLIAM TONG

Attorney General

State of Connecticut

165 Capitol Ave.

Hartford, CT 06106

ANDREA JOY CAMPBELL

Attorney General

Commonwealth of

Massachusetts

One Ashburton Pl.

Boston, MA 02108

KATHLEEN JENNINGS

Attorney General

State of Delaware

820 N. French St.

Wilmington, DE 19801

DANA NESSEL

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

ANNE E. LOPEZ

Attorney General

State of Hawai‘i

425 Queen St.

Honolulu, HI 96813

MATTHEW J. PLATKIN

Attorney General

State of New Jersey

25 Market St.

Trenton, NJ 08625

KWAME RAOUL

Attorney General

State of Illinois

115 S. LaSalle St.

Chicago, IL 60603

RAÚL TORREZ

Attorney General

State of New Mexico

408 Galisteo St.

Santa Fe, NM 87501

AARON M. FREY

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333

DAN RAYFIELD

Attorney General

State of Oregon

1162 Court St. NE

Salem, OR 97301

(Counsel listing continues on next page.)

PETER F. NERONHA

Attorney General

State of Rhode Island

150 S. Main St.

Providence, RI 02903

BRIAN L. SCHWALB

Attorney General

District of Columbia

400 6th St. NW

Washington, D.C. 20001

CHARITY R. CLARK

Attorney General

State of Vermont

109 State St.

Montpelier, VT 05609

CHRISTIAN D. MENEFEE

County Attorney

Harris County, Texas

1019 Congress, 15th Fl.

Houston, TX 77002

NICHOLAS W. BROWN

Attorney General

State of Washington

P.O. Box 40100

Olympia, WA 98504

MURIEL GOODE-TRUFANT

Corporation Counsel

City of New York

100 Church Street

New York, NY 10007

JOSHUA L. KAUL

Attorney General

State of Wisconsin

P.O. Box 7857

Madison, WI 53707

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.