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

No. 23-1067

In the

Supreme Court of the United States

STATE OF OKLAHOMA, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Tenth Circuit

REPLY BRIEF FOR PETITIONERS

Derek Brown

Attorney General

Stanford E. Purser

Solicitor General

Office of the Utah

Attorney General

Utah State Capitol Complex

350 N. State Street,

Suite 230

Salt Lake City, UT 84114

Gentner Drummond

Attorney General

Garry M. Gaskins, II

Solicitor General

Jennifer L. Lewis

Deputy Attorney General

Oklahoma Attorney

General’s Office

313 N.E. 21st Street

Oklahoma City, OK 73105

William L. Wehrum

Wehrum Environmental

Law LLC

1629 K Street, N.W.,

Suite 300

Washington, D.C. 20006

Mithun Mansinghani

Counsel of Record

Lehotsky Keller Cohn LLP

629 W. Main Street

Oklahoma City, OK 73102

(512) 693-8350

mithun@lkcfirm.com

Counsel for Petitioner

State of Utah

Counsel for Petitioners

State of Oklahoma and

Oklahoma Department of

Environmental Quality

Emily C. Schilling

Holland & Hart LLP

222 S. Main Street,

Suite 2200

Salt Lake City, UT 84101

Kristina R. Van Bockern

A aron B. Tucker

Holland & Hart LLP

555 17th Street, Suite 3200

Denver, CO 80202

Counsel for Petitioner

State of Utah

Michael B. Schon

Drew F. Waldbeser

Lehotsky Keller Cohn LLP

200 Massachusetts Avenue

N.W.

Washington, DC 20001

Counsel for Petitioners

State of Oklahoma and

Oklahoma Department of

Environmental Quality

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Introduction ................................................................ 1

Argument .................................................................... 2

I.

Section 7607(b)(1)’s plain text places review

of EPA’s approval or disapproval of state

plans in the regional circuits. ............................. 2

II. EPA’s disapprovals of Oklahoma’s and Utah’s

plans were not based on determinations of

nationwide scope or effect. ................................ 11

A. Section 7607(b)(1)’s exception applies

only when the dispositive reasons for

EPA’s actions are nationwide in scope or

effect. ........................................................... 12

B. EPA’s disapprovals of Oklahoma’s and

Utah’s plans were not based on

determinations of nationwide scope or

effect. ........................................................... 18

C. EPA’s

policy

arguments

are

unpersuasive............................................... 24

Conclusion................................................................. 25

ii

TABLE OF AUTHORITIES

CASES

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

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

Babb v. Wilkie,

589 U.S. 399 (2020) .................................................. 7

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

45 F.4th 380 (D.C. Cir. 2022) ................................ 13

Dayton Power & Light Co. v. EPA,

520 F.2d 703 (6th Cir. 1975).................................. 15

FDA v. R.J. Reynolds,

No. 23-1187 (Jan. 21, 2025) ................................... 25

Fry v. Napoleon Cmty. Schs.,

580 U.S. 154 (2017) ................................................ 13

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980) .................................................. 8

Hertz Corp. v. Friend,

559 U.S. 77 (2010) .............................................. 5, 16

Kentucky v. EPA,

123 F.4th 447 (6th Cir. 2024) ............ 4, 9, 15, 17, 18

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ............................................ 5, 17

Maryland v. EPA,

958 F.3d 1185 (D.C. Cir. 2020) .............................. 10

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) .................................................. 8

Nat. Res. Def. Council, Inc. v. EPA,

465 F.2d 492 (1st Cir. 1972) .................................. 15

Nat. Res. Def. Council, Inc. v. EPA,

475 F.2d 968 (D.C. Cir. 1973) ................................ 15

iii

Navarro Sav. Ass’n v. Lee,

446 U.S. 458 (1980) .................................................. 6

Rumsfeld v. Padilla,

542 U.S. 426 (2004) .................................................. 2

SEC v. Chenery Corp.,

332 U.S. 194 (1947) ................................................ 22

Sierra Club v. EPA,

311 F.3d 853 (7th Cir. 2002).................................. 10

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016)............................ 13, 17

Texas v. EPA,

983 F.3d 826 (5th Cir. 2020).................................. 17

Travis v. United States,

364 U.S. 631 (1961) .................................................. 5

STATUTES, REGULATIONS AND

OTHER AUTHORITIES

42 U.S.C. § 7410 ................................................. 2, 6, 7

42 U.S.C. § 7607(b)(1) .................. 2, 3, 4, 6, 7, 8, 9, 11,

12, 13, 14, 16, 18, 20, 22

40 C.F.R. § 81.18....................................................... 10

40 C.F.R. § 81.44....................................................... 10

41 Fed. Reg. 56,767 (Dec. 30, 1976) ............. 14, 15, 16

66 Fed. Reg. 15,578 (Mar. 19, 2001) ........................ 10

86 Fed. Reg. 68,413 (Dec. 2, 2021) ............................. 9

87 Fed. Reg. 31,470 (May 24, 2022) ............. 19, 20, 24

88 Fed. Reg. 9,336 (Feb. 13, 2023) .......... 9, 12, 19, 20,

21, 23, 24

89 Fed. Reg. 92,816 (Nov. 25, 2024)......................... 10

iv

American Heritage Dictionary 59 (1969)................... 7

Black’s Law Dictionary (5th ed. 1979) ....................... 9

Webster’s Third New International Dictionary

(1966) ...................................................................... 11

INTRODUCTION

The parties agree venue for challenges to EPA

actions under the Clean Air Act turns in the first

instance on the “nature” of the EPA “action” being

challenged. Br. 29; Resp. 19. In Petitioners’ view, the

nature of the action is fixed by the statutory authority

EPA exercised in taking the action because that is how

the text of the Act divides venue among the circuits.

In EPA’s view, the nature of otherwise local actions

changes to a single national action if EPA chooses to

process and publish them together.

Nothing in the statute says venue turns on such

administrivia. The relevant action does not transform

based on the agency’s publication choices. Unable to

rely on text, EPA says that courts “should ordinarily

accept EPA’s framing of its own action” when

determining the quintessentially judicial question of

venue, Resp. 27—a bid for deference that today cannot

be countenanced.

EPA resorts to a fallback: it argues its state plan

disapprovals are based on determinations of

nationwide scope or effect under the venue clause’s

exception for local actions that nonetheless must be

challenged in the D.C. Circuit. But the purported

determinations EPA now points to are largely not the

ones it identified in the Federal Register when

invoking the venue exception.

That last-minute shift in position not only violates

foundational administrative law principles—it is

telling. None of the “nationwide” determinations EPA

asserts now, or when it published its actions, are the

dispositive reason for EPA’s actions. More

importantly, were EPA’s statutory interpretation

2

accepted, the venue clause’s exception would license

EPA to always choose the D.C. Circuit as its forum.

That nullifies Congress’s choice to have the statute,

not the most powerful litigant, choose venue. EPA’s

seizure of such authority must be rejected.

ARGUMENT

I.

Section 7607(b)(1)’s plain text places review

of EPA’s approval or disapproval of state

plans in the regional circuits.

According to EPA, its “decision to group the

various state plan” denials into a single Federal

Register notice transformed those otherwise local

actions into a single “nationally applicable” action.

Resp. 24. But under Section 7607, the relevant

“action” is defined by the statutory authority under

which EPA acts, not EPA’s formatting choices.

Because EPA’s ministerial publication decisions do

not alter the underlying actions, they cannot govern

the forum for judicial review. The proper venue for

Petitioners’ challenges to EPA’s quintessentially local

actions—disapprovals of their respective state plans—

is their local circuit.

1. Start with the text: Section 7607(b)(1) allocates

venue for a challenge to an EPA “action” depending on

the statutory authority EPA exercises. Br. 22. Here,

EPA acted under 42 U.S.C. § 7410, which requires

“[e]ach state” to submit a plan of its own, and

repeatedly refers to EPA acting on “the plan”

submitted by “each State,” always in the singular. Br.

23-26; Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004)

(explaining “[t]he consistent use of the definite article”

in the phrase “the person” means there is “only one”

3

person being referred to). The statute thus requires

EPA to act on each plan individually, and EPA did. Br.

24-25. Because each plan applies to only one State,

EPA’s approvals or disapprovals of them are the

“prototypical ‘locally or regionally applicable’ action

that may be challenged only in the appropriate

regional court of appeals.” Am. Rd. & Transp. Builders

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

(Kavanaugh, J.). Indeed, EPA actions on state plans

are explicitly listed in Section 7607’s sentence setting

venue in the regional circuit, not the sentence

directing review of nationally applicable actions to the

D.C. Circuit. Br. 25-28.

EPA contests little of this. It admits the “statute’s

use of singular articles makes sense because each

State submits a single plan, and EPA must assess

each State’s submission.” Resp. 23. EPA further

concedes that “an action addressing a single State’s

implementation plan ‘is the prototypical “locally or

regionally applicable” action.’” Resp. 25 (emphasis

added) (citation omitted); see Resp. 40. And EPA does

not defend the Tenth Circuit’s mistaken assertion that

EPA’s application of “a uniform statutory

interpretation and common analytical methods”

across otherwise locally applicable actions could make

them nationally applicable. Br. 32-37. All parties

therefore agree that if the “action” at issue is EPA’s

disapproval of individual state plans, the Tenth

Circuit erred in transferring to the D.C. Circuit.

2. EPA contends that bundling separate actions

into a single Federal Register notice transforms the

“nature of the pertinent EPA action.” Resp. 19. It

4

cannot defend that flawed position with the statutory

text. So EPA argues instead that courts “should

ordinarily accept EPA’s framing of its own action,”

based on EPA’s discretionary decision whether to

“aggregate” otherwise locally applicable actions into a

single notice. Resp. 27. But Petitioners have never

challenged EPA’s power to simultaneously consider

separate actions for administrative convenience. See

Br. 30. The question is whether doing so changes the

nature of the action that EPA has taken.

The agency cites nothing in the statute that gives

EPA unilateral power to “reframe” the relevant action

to alter venue. Resp. 26. It contends only that nothing

in the statute “restricts EPA’s ability to consider state

plan submissions together and resolve common issues

in a single final action.” Resp. 23. Section 7607(b)(1),

however, is not silent on whether that affects venue: it

distinguishes between the “action” and “notice of such

… action … in the Federal Register.” Br. 29-30. Section

7607(b)(1) then categorizes venue by listing statutory

provisions that grant EPA substantive authority to act,

not by how those actions were published. Br. 22.

Section 7607(b)(1) thus ties venue “to the activity taken

‘under this chapter,’” not how EPA published its notice

of that activity. Kentucky v. EPA, 123 F.4th 447, 461

(6th Cir. 2024). Here, the statutory provision that

authorizes EPA to act requires EPA to approve or

disapprove individual state plans.

EPA suggests that, in applying Section 7607’s

venue provision, courts should not “substitute a

judicial determination of the relevant unit of analysis”

for EPA’s. Resp. 26-27. But the “relevant unit of

5

analysis” is a question of statutory interpretation and

“courts decide legal questions by applying their own

judgment.” Loper Bright Enters. v. Raimondo, 603

U.S. 369, 392 (2024). Interpreting and applying a

venue statute is part of “the ordinary diet of the law”

that courts independently decide without deference.

Id. at 402 (citation omitted).

EPA’s approach to defining the relevant “action”

is unworkable, too. Venue statutes exist to prevent

litigants from having unrestricted choice of venue.

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

statutes should be governed by clear rules, lest

confusion over where to file produces unnecessary

“appeals

and

reversals”

and

“encourage[s]

gamesmanship.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010). EPA agrees the venue provision should require

a simple, objective analysis for “courts and litigants”

to “quickly and efficiently determine where venue

lies.” Resp. 26. EPA’s approach fails that test.

Petitioners’ view produces the necessary bright lines:

Litigants and the reviewing court need only identify

the statutory provision under which EPA is acting to

determine the relevant “action” for venue purposes.

EPA’s atextual approach, by contrast, allows it to

manipulate the “action” at will. Br. 30-31. EPA does

not deny this. It contends only that it has not “engaged

in any such arbitrary aggregation here” and that

courts could “reject[] a particular grouping” if EPA did

attempt to “manipulate venue.” Resp. 27. Judicial

authority to police EPA’s aggregation decisions is no

reason to give EPA the power to manipulate in the

first place. Moreover, EPA’s approach will inevitably

6

produce case-specific arguments about whether

aggregating locally applicable actions was justified

and sufficient to transform local actions into a

national one. EPA does not explain what standard

courts would apply in making that determination or

how that standardless approach emerges from the

statute. This contorted interpretation of Section

7607(b)(1) will only invite the “wasteful expenditure of

resources in resolving threshold issues” that EPA

decries, Resp. 26—and that has already occurred here.

See Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464 n.13

(1980) (“[L]itigation over whether the case is in the

right court is essentially a waste of time and

resources.” (citation omitted)). It would also harm

regulated parties, which will experience extended

uncertainty and compliance costs while venue is

litigated. U.S. Chamber Br. 11.

3. Congress also identified disapprovals of state

plans as locally or regionally applicable actions

reviewable in the regional circuit, so EPA’s decision to

jointly publish multiple state plan disapprovals

cannot shift venue to the D.C. Circuit. Br. 26-28.

Moreover, Section 7607(b)(1) identifies “approv[als]”

of “any implementation plan under section 7410” as

categorically reviewable in the regional circuit. That

confirms state plan disapprovals should be reviewed

in the regional circuit, too. Br. 27-28; U.S. Senators’

Br. 6.

EPA disputes this straightforward conclusion. It

denies that state plan approvals are always

reviewable in the regional circuit—but not for the

reasons offered by the Tenth Circuit, which it does not

7

defend. Compare Br. 37-38 with Resp. 28-29. Rather,

EPA hypothesizes that because Section 7607(b)(1)

references “any implementation plan,” that phrase

“could reasonably be read as limited to the agency’s

approval of a single plan.” Resp. 29 (emphasis added).

Under that view, “an EPA action approving multiple

state plans” might fall outside the “enumerated

categories” of locally or regionally applicable actions.

Resp. 29. EPA stops short of actually adopting this

interpretation—for good reason. The argument is

inconsistent with EPA’s past practice. See Br. 28

(collecting examples of EPA admitting that state plan

approvals were locally applicable, even if published

together). More importantly, this Court has

“repeatedly explained that ‘the word “any” has an

expansive meaning.’” Babb v. Wilkie, 589 U.S. 399,

405 n.2 (2020). “The standard dictionary definition of

‘any’ is ‘[s]ome, regardless of quantity or number.’” Id.

(quoting American Heritage Dictionary 59 (def. 2)

(1969)). Section 7607(b)(1)’s reference to any state

plan approval thus means all state plan approvals, no

matter how EPA packages them, are reviewable in the

regional circuit.

That leaves state plan disapprovals, which EPA

argues are governed by the catchall. Resp. 29. That

misses the point. If a state plan approval under

Section 7410 is categorically reviewable in the

regional circuit, that is strong confirmation that a

state plan disapproval under the same provision must

be locally or regionally applicable. Br. 27-28; Arkansas

Br. 7-8. Nonetheless, EPA asserts that while approval

of a state plan would be locally or regionally

8

applicable, disapproval of the same plan might be

nationally applicable. See Br. 31 (citing example of

EPA taking this position). EPA does not try to make

sense of that contradiction.

Worse, EPA’s reading makes Congress’s

November 1977 amendment—which inserted the “any

denial or disapproval” language—superfluous. Br. 27.

EPA contends that “language indicates that EPA

denials and disapprovals are subject to the same

venue analysis that applies to ‘other final action[s]’

generally.” Resp. 28. But that was just as true before

the November 1977 amendment. See Harrison v. PPG

Indus., Inc., 446 U.S. 578, 589 (1980). EPA’s reading

means that amendment changed nothing. That can’t

be right.

4. In all events, the action here was not

“nationally applicable” because the state plan

disapprovals covered only discrete parts of the

country.

EPA argues that “any action that spans more than

one judicial circuit is properly viewed as ‘nationally

applicable.’” Resp. 21. EPA derives this rule from

legislative history and the thinnest of textual reeds:

Section 7607(b)(1)’s reference to “the appropriate

circuit,” which EPA takes to mean that “for any given

locally or regionally applicable action, there is only one

appropriate regional court of appeals.” Resp. 20-22.

EPA’s reading, however, cannot be squared with

the ordinary meaning of “nationally applicable.” See

Mohamad v. Palestinian Auth., 566 U.S. 449, 458

(2012) (“[R]eliance on legislative history is

unnecessary” when the statute is “unambiguous.”).

9

The “word ‘[n]ational’ contemplates an activity with a

nationwide scope.’” Kentucky, 123 F.4th at 459-60

(quoting Black’s Law Dictionary 923 (5th ed. 1979));

see also Br. 25 (explaining under the ejusdem generis

canon, the nationally applicable catchall should be

interpreted consistent with the national standards in

the preceding list). EPA itself acknowledges that

“nationally” means it applies “throughout the nation.”

Resp. 19 (citation and internal marks omitted). A

nationally applicable regulation must therefore in

“legal effect” apply to the whole country, even if it

“practically appl[ies] only to some States.” Kentucky,

123 F.4th at 462 (emphasis omitted). Here, even

assuming EPA’s disapproval of 21 state plans was a

single “action,” it was not “nationally applicable”

because its “legal effect” covered barely “40% of the

country.” Id. at 459, 462.

Indeed, EPA repeatedly acknowledged the

propriety of regional circuit review when the agency

simultaneously approved multiple state plans from

multiple circuits in combined Federal Register notices.

Br. 28. EPA now disputes this, arguing that it merely

recognized challenges to those actions should be filed

in the “appropriate circuit,” not that it found these

were locally or regionally applicable actions. Resp. 25

n.5 (citing 86 Fed. Reg., 68,413, 68,420 (Dec. 2, 2021)).

That is misleading at best. Section 7607(b)(1) directs

challenges to “locally or regionally applicable” actions

to “the appropriate circuit,” and when EPA believes an

action is nationally applicable, it says so. See, e.g., 88

Fed. Reg. 9,336, 9,380-81 (Feb. 13, 2023) (“This

rulemaking is ‘nationally applicable’” and so “petitions

10

for judicial review … must be filed in the … District of

Columbia Circuit.”).

EPA also argues that Congress considered “EPA

actions approving or promulgating ‘implementation

plans which run only to one air quality control region’”

to be locally or regionally applicable. Resp. 21. But

EPA’s control regions for metropolitan areas

frequently span multiple circuits. See Maryland v.

EPA, 958 F.3d 1185, 1199 (D.C. Cir. 2020) (“‘[A]ir

quality control regions’ include multistate areas”). The

Metropolitan Memphis air quality control region, for

instance, covers parts of Arkansas, Mississippi, and

Tennessee. 40 C.F.R. § 81.44. The Metropolitan St.

Louis air quality control region covers parts of Illinois

and Missouri. Id. § 81.18.

EPA has consistently admitted that actions

related to those interstate air quality control regions

are locally or regionally applicable. See, e.g., 89 Fed.

Reg. 92,816, 92,820 (Nov. 25, 2024) (explaining that

any challenge to EPA’s conclusion that the “St. Louis,

MO-IL bi-State nonattainment area failed to attain

the 2015 ozone National Ambient Air Quality

Standards” must be filed “in the appropriate circuit”);

66 Fed. Reg. 15,578, 15,589 (Mar. 19, 2001) (same for

a final rule finding the St. Louis air quality control

region to be in nonattainment of the national ambient

air quality standards for ozone); Sierra Club v. EPA,

311 F.3d 853, 855 (7th Cir. 2002) (reviewing challenge

to EPA action related to St. Louis air quality control

region).

Under EPA’s current interpretation, those singlecity actions would be “nationally applicable” because

11

they affect parts of multiple federal circuits. If such

actions are “national,” the word means something

different than almost anyone would understand. See

National, Webster’s Third New International

Dictionary 1505 (1966) (“affecting or involving a

nation as a whole esp. as distinguished from

subordinate areas”).

* * *

The text and context of Section 7607(b)(1)—to say

nothing of common sense—thus establish that the

relevant actions challenged in these cases are EPA’s

decisions to disapprove individual state plans, which

are locally or regionally applicable actions reviewable

in the Tenth Circuit. EPA’s decision to publish

separate actions related to individual States in a

single Federal Register notice is irrelevant to the

venue analysis.

II. EPA’s disapprovals of Oklahoma’s and Utah’s

plans were not based on determinations of

nationwide scope or effect.

Section 7607(b)(1)’s exception applies only when

the dispositive reasons justifying EPA’s action have

nationwide scope or effect. Br. 40-44. EPA’s core

reasons for its denials of Oklahoma’s and Utah’s plans

were state-specific. Br. 44-51.

In resisting that conclusion, EPA asks for

deference to its “finding” that the determinations on

which its actions were based had nationwide scope

and effect. But the statute delegates to the agency the

choice whether to publish such a finding to invoke the

venue exception, not the legal conclusion whether the

determinations on which EPA based its action have

12

“nationwide scope or effect.” That venue question is

one for the courts.

Neither of the determinations EPA relied on in

the Federal Register qualifies for this exception. Br.

51-54. In a tacit admission of that fact, EPA now relies

on three new “determinations” it did not previously

identify as the reason the venue exception applies.

Compare Resp. 34-36 with 88 Fed. Reg. at 9,380-81.

The Court should reject EPA’s effort to rely on these

impermissible post-hoc rationalizations. Regardless,

they lack merit.

A. Section 7607(b)(1)’s exception applies

only when the dispositive reasons for

EPA’s actions are nationwide in scope or

effect.

1. EPA disapproved individual state plans “based

on” its determinations that the state-specific analyses

and reasoning in those States’ plans did not satisfy

their Good Neighbor obligations. See Br. 44-51. EPA

admits it “need[ed] to consider State-specific

circumstances.” Resp. 44-45.

Despite these state-specific determinations, EPA

contends the venue exception applies because it based

the disapprovals in sufficient measure on purported

decisions of nationwide scope or effect. Resp. 45. In

EPA’s view, any time it addresses “controversies over

specific methodological issues” that could be applied in

more than one State, the exception applies. Resp. 47.

EPA’s approach would impermissibly convert a

narrow exception into unbounded authority for EPA to

send cases to the D.C. Circuit. As EPA concedes, EPA

will nearly always base its actions on nationwide legal

13

interpretations and frameworks. Resp. 47. Every

action involves, for instance, “interpretation of the

Clean Air Act’s statutory terms,” but “that kind of

interpretive exercise alone does not transform a

locally applicable action into a nationally applicable

one.” Chevron U.S.A. Inc. v. EPA, 45 F.4th 380, 387

(D.C. Cir. 2022).

That is why Section 7607(b)(1)’s exception looks at

the dispositive reasons for the action—the ones of

central relevance. Br. 41-42. EPA admits that the

nationwide justifications under the venue exception

must “lie at the core of the agency action” and cannot

be “[m]erely peripheral or extraneous.” Id. (quoting

Texas v. EPA, 829 F.3d 405, 419 (5th Cir. 2016) (“Texas

2016”). Or, as EPA’s industry allies frame it, the

relevant reason must be “absolutely indispensable or

essential” to the action. Growth Energy Br. 23, No. 231229 (citing Fry v. Napoleon Cmty. Schs., 580 U.S.

154, 167 (2017) (the phrase “based on a determination”

identifies something that is a “sine qua non” of the

action)).*

2. EPA points to cases interpreting meaningfully

different laws and statutory terms to justify a

sweeping “but-for” test for the venue exception. Resp.

31-32 (citing cases interpreting the terms “based in

whole or in part on” and “because of”). Not only are the

* EPA wrongly suggests that State Petitioners argue the “final

action” must have “nationwide scope or effect” for the exception

to apply. Resp. 41-42. That may be Industry Petitioners’ position,

but State Petitioners agree with EPA that, for the exception,

what matters is the scope or effect of EPA’s core “justifications,”

not the action itself. See Br. 43.

14

words in the Clean Air Act different, statutory context

matters, too. Perhaps in other statutes or cases any

intermediate “but-for” reason will do. Not so where, as

here, it would allow the exception to swallow the rule

and permit EPA to manipulate venue. Br. 30-31, 41.

Indeed, EPA agrees that not any but-for reason is

enough under Section 7607(b)(1)’s exception. Resp. 32.

Only the justifications that “lie at the core of the

agency action” suffice. Resp. 32 (citation omitted).

Section 7607(b)(1)’s textual context confirms this.

Its third sentence must be interpreted in light of its

first. Namely, an action is “based on a determination

of nationwide scope or effect” if it is based on the same

kind of uniform determinations that actions of

nationwide applicability are. For example, EPA sets

national ambient air quality standards by making

determinations about the appropriate standard for the

nation, without allowing for deviations based on local

factors. Similarly, EPA’s cited legislative history

confirms the “generic determinations of nationwide

scope or effect” covered by the exception are those that

make the action “virtually identical to promulgation of

‘national standards’” covered by the first sentence of

Section 7607. 41 Fed. Reg. 56,767, 56,768-69 (Dec. 30,

1976). Here, EPA must assess unique, state-specific

plans, which is the antithesis of those types of national

actions.

EPA’s view thus finds little refuge in the

legislative history it cites. Resp. 40-41. EPA relies on

what the Sixth Circuit found was a “meaningless

statement [that] says nothing about the key question:

Which state-plan issues are ‘national’?” Kentucky, 123

15

F.4th at 467. At most, it “cut[s] the other way” because

the actions Congress desired to be in the D.C. Circuit

involved “uniform regulations,” not fact-specific state

plan decisions. Id.

As the Sixth Circuit correctly recognized, id., the

three cases identified in the legislative history

involved uniform regulations or generic actions not

dependent on the uniqueness of state plans. See 41

Fed. Reg. at 56,769 n.3 (citing Dayton Power & Light

Co. v. EPA, 520 F.2d 703 (6th Cir. 1975); Nat. Res. Def.

Council, Inc. v. EPA, 475 F.2d 968 (D.C. Cir. 1973);

Nat. Res. Def. Council, Inc. v. EPA, 465 F.2d 492 (1st

Cir. 1972)). Dayton involved EPA “regulations …

developed through a unitary rule-making procedure,

… amending every state’s air quality implementation

plan in precisely the same way.” 520 F.2d at 705. Both

Natural Resources Defense Council cases dealt with

uniform deadline extensions for States to submit

transportation portions of plans to attain national

ambient air quality standards. 475 F.2d at 970; 465

F.2d at 493. These general determinations thus

involved regulations that “affected all states.” 465

F.2d at 494.

By contrast, the legislative history emphasizes

that, because EPA’s substantive actions on state

implementation plans “usually involve issues peculiar

to the affected States,” they presumptively belong in

the regional circuits. See 41 Fed. Reg. at 56,768. The

exception created for EPA “determinations of

nationwide scope or effect” that should be reviewed in

the D.C. Circuit was intended to apply to “actions ...

virtually identical to promulgation of ‘national

16

standards’” ... which “do not involve factual questions

unique to particular geographical areas” including

actions like “[EPA’s] promulgation of generic

regulations (applicable to all States) that require

prevention of signification deterioration of air

quality.” Id. at 56,678-79 & n.2.

Ultimately, EPA admits that a “determination”

involves the “settling and ending of a controversy.”

Resp. 31 (citations omitted). The relevant

determination must be the dispositive reason—the

“core justification” or “central rationale”—for EPA’s

action. Resp. 31-32.

3. EPA elsewhere suggests that “a textually

reasonable” interpretation of the Section 7607(b)(1)

exception is that it considers whether a given

determination is “likely to be called into question in

any judicial challenge.” Resp. 47. That suggestion has

no basis in text, logic, or precedent. The speculation

that some “nationwide rule, policy, or interpretation”

may be litigated does not satisfy Section 7607(b)(1)’s

requirement that the action be “based on” that

determination.

EPA’s proposed standard would also be a

nightmare for courts and litigants to navigate. Courts

(and EPA) would have to guess what determinations

are likely to be contested when considering whether

venue is proper. The text does not even hint at this

tortured analysis, and this Court should not adopt a

venue rule that turns on subjective speculation about

likely arguments. See Hertz Corp., 559 U.S. at 94.

4. EPA’s final refuge, as always, is deference: it

argues its “finding that the statutory standard is

17

satisfied … ordinarily will be governed by the

arbitrary-and-capricious standard.” Resp. 33. But

determining venue is a quintessentially legal exercise.

See Kentucky, 123 F.4th at 467. EPA’s legal conclusion

that the action falls within the venue exception

deserves no deference. Texas v. EPA, 983 F.3d 826, 833

(5th Cir. 2020) (“The court—not EPA—determines

both the scope of an action’s applicability and whether

it was based on a determination of nationwide scope

or effect.”); Texas 2016, 829 F.3d at 421 (applying de

novo review).

To be sure, when EPA invokes the exception, it

must identify the determinations that warrant

transferring the case to the D.C. Circuit. But the

question of whether the rationales EPA cited

constitute determinations of national scope or effect

that the action is based on is a legal question that

courts can and should consider de novo. See Loper

Bright, 603 U.S. at 402.

Identifying the action’s dispositive justifications

neither requires resolution of any “factual dispute” nor

involves a question germane to EPA’s “knowledge and

expertise.” Contra Resp. 33. EPA must include in the

administrative record its explanation for its action

and why a purported “determination” constitutes the

basis of the action and is of national scope or effect.

EPA’s rationale will always be evident on the record

and easily susceptible to review by the Court. That

leaves the “legal question[]” of “whether an agency

action rests on ‘a determination of nationwide scope or

effect.’” Kentucky, 123 F.4th at 467.

18

In the end, EPA conflates answering whether

determinations of national scope and effect were the

basis of its actions with the act of publishing a finding

that a case should be moved to the D.C. Circuit. See

Resp. 34. EPA’s decision whether to publish that

finding is at most reviewable for arbitrariness. Resp.

33-34. But if EPA does publish that finding, courts

have an independent obligation under Section

7607(b)(1) to determine whether the identified

rationales underlying that finding legally constitute

determinations of nationwide scope or effect on which

the actions are based.

B. EPA’s disapprovals of Oklahoma’s and

Utah’s plans were not based on

determinations of nationwide scope or

effect.

EPA’s disapprovals of the States’ individual plans

were based on state-specific determinations unique to

each state plan—not “nationwide” determinations.

Br. 47-51. Venue is therefore proper in the

appropriate regional circuits.

1. EPA contends that “the State-specific analyses

petitioners highlight largely reflect the application of

nationwide

determinations

to

each

State’s

circumstances.” Resp. 44. It is more than that: The

dispositive issues on which EPA’s actions turned

focused on these “discrete local facts.” Resp. 47; Br. 4451.

After all, the Clean Air Act assigns States primary

responsibility for managing air quality and affords

States significant flexibility in how they satisfy that

obligation. Br. 4-5, 45-46. To that end, each of the 21

19

state plans addressed in the final actions relied on

state-specific reasoning and data to determine

whether that State was significantly contributing to

nonattainment or interfering with maintenance in

downwind States.

For example, Utah’s plan used a “weight-ofevidence” approach, pointing out that EPA had

applied such an approach in approving Arizona’s Good

Neighbor plan for the 2008 ozone national ambient air

quality standard and that Utah’s situation was

sufficiently analogous to Arizona’s to warrant the

application of that alternative approach. J.A.42a-43a.

EPA rejected those arguments, not simply because

Utah’s approach is different than EPA’s 4-step

framework, but because EPA concluded that Utah’s

specific weight-of-evidence approach purportedly

failed to accurately assess significant contribution

given circumstances in Utah. 88 Fed. Reg. at 9,360.

EPA necessarily considered Utah’s “specific

methodological issue,” Resp. 47, producing a decision

uniquely grounded in the particular details of Utah’s

plan.

The same is true for Oklahoma. For example,

Oklahoma relied on air quality modeling prepared by

Texas rather than EPA’s 2016 national modeling.

J.A.20a-22a. Oklahoma concluded that Texas’

modeling better represented regional air quality

conditions than EPA’s generic national modeling. Id.

EPA rejected Oklahoma’s reliance on the Texas

modeling. 87 Fed. Reg. 9,798, 9,823-24 (Feb. 22, 2022).

But the flaw was not based on an EPA determination

that Oklahoma must use EPA’s preferred 2016

20

national modeling. Instead, EPA delved into specific

aspects of the Texas modeling and concluded that the

modeling purportedly does not accurately depict

regional ambient air conditions. See id.

2. Section 7607(b)(1)’s exception requires EPA to

affirmatively identify determinations with nationwide

scope or effect it believes were the basis for its action.

Neither of the determinations EPA identified in the

Federal Register qualify. Br. 51-53.

EPA asserted the action was based on

determinations of purported nationwide scope or effect

because the agency applied “a common core of

nationwide policy judgments” and tried to avoid

“inconsistent or inequitable results among upwind

States.” 88 Fed. Reg. at 9,380-81. “In particular,” EPA

pointed to the “nationally consistent 4-step interstate

transport framework … that it has applied in other

nationally applicable rulemakings” and “the results

from nationwide photochemical grid modeling … .” Id.

at 9,380. Neither satisfies Section 7607(b)(1)’s

exception.

EPA has correctly abandoned the argument that

use of its 4-step framework was a determination on

which its actions were based. That analytical

framework was not a “determination”—in EPA’s

words, the “settling and ending of a controversy,”

Resp. 31—because it was optional for States to follow,

Br. 51-52. The agency did “not direct states to use a

particular framework.” 88 Fed. Reg. at 9,375. And

EPA’s 4-step framework is a long-standing policybased analytical framework first developed over a

decade ago. Id. at 9,338; Resp. 5. So even under EPA’s

21

reasoning, the disapprovals were not based on a

determination in this action that the 4-step framework

was required (or appropriate) for Good Neighbor

compliance. See Resp. 47 (suggesting that older

determinations of “settled” validity cannot trigger the

venue exception).

That leaves EPA’s reliance on national ozone

modeling. Resp. 34-35. The agency argues only that

the modeling “affected” the “manner in which

responsibility … was allocated between upwind and

downwind States” and was the “basis for its

‘assessment,’” not its action. Resp. 34-35. But the Act

does not require EPA to promulgate modeling and

EPA cannot (and did not) require States to use it.

Br. 53. It was thus not a “determination” on which the

disapprovals were “based.” And EPA’s rejection of

some States’ region-specific modeling necessarily did

not have nationwide scope or effect. Br. 53. Nor did

EPA automatically reject a state plan because it did

not rely on EPA’s preferred model.

In any case, the modeling produced different

results for each State, factoring differently into each

State’s plan. Br. 53-54. EPA’s decision to approve or

disapprove depended on how the modeling interacted

with a state plan’s evaluation of the facts and

circumstances of that State. Br. 53.

3. EPA’s brief takes a different course than its

Federal Register notice. EPA identifies three new

“determinations,” in addition to modeling, on which it

purportedly based its actions: (1) application of “a 1%

contribution threshold,” (2) treatment of “the relative

contributions of other States,” and (3) reliance on

22

“emission-reduction measures that are not actually

incorporated into its state plan.” Resp. 34-35. But it

did not “find[] and publish[] that” its disapprovals

were “based on” these determinations. 42 U.S.C.

§ 7607(b)(1). Because EPA failed to identify these

three new determinations in its finding, the Court

should not consider EPA’s post-hoc rationalizations

here.

As EPA repeatedly argues, “when EPA declines to

publish such a finding,” that “effectively precludes

D.C. Circuit venue under Section 7607(b)(1),” even if

that determination arguably had nationwide scope or

effect. Resp. 33-34, 48. EPA’s reliance on these new

purported determinations would also violate “a simple

but fundamental rule of administrative law” that “a

reviewing court … must judge the propriety of such

action solely by the grounds invoked by the agency.”

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

Even if EPA could rely on these post-hoc

rationalizations, EPA’s actions were not based on

these new “determinations.” At most, the rationales

EPA points to clarified which emissions contributions

and reductions measures EPA believed relevant. But

none constituted the dispositive reasons for

disapproving Oklahoma’s or Utah’s plans. Rather,

EPA’s actions ultimately depended on state-specific

determinations. Supra 18-20.

First, EPA did not base its state plan disapprovals

on the decision to adopt a 1% threshold for evaluating

whether an upwind State may be significantly

contributing downwind. To start, this issue was not

“nationwide”: EPA stated in the Federal Register that

23

“this issue is only relevant to a small number of” the

state plans it was disapproving, specifically “Alabama,

Kentucky, and Minnesota.” 88 Fed. Reg. at 9,373. Nor

was it dispositive for EPA’s disapprovals. The 1%

threshold is only “a screening threshold to identify

states which may be ‘contributing.’” Id. at 9,371

(emphasis added). When States contributed above 1%,

EPA “expect[ed] states to further evaluate their

emissions to determine whether” they constitute

“significant contribution[s].” Id. (emphasis added).

And it was not even a “determination”: EPA stated it

“has not imposed a requirement that states must use

a 1 percent” threshold, only that a particular list of

States each failed to make “a sufficient showing that

the use of an alternative contribution threshold is

justified for those States.” Id. at 9,373 (emphases

added). Indeed, EPA itself had proposed a statespecific justification for using an alternative threshold

for Iowa. Id.

Second, EPA’s assertion “that the relative

contributions of other States or countries could not

excuse a State from analyzing whether its own

emissions ‘significantly’ contribute to downwind

nonattainment” is simply wrong, and thus cannot

stand as a “determination” affecting venue. Resp. 35.

EPA adopted its 1% screening threshold to distinguish

between “the combined impact of relatively small

contributions, typically from multiple upwind states,”

and “substantially larger contributions.” 88 Fed. Reg.

at 9,342. So, in fact, the “relative contributions of other

states” necessarily were considered under EPA’s 1%

threshold. To the extent a State sought to account for

24

relative contributions differently for state-specific

reasons, EPA rejected them because it (wrongly) found

the state plan’s justifications inadequate. See 87 Fed.

Reg. 31,470, 31,479-82 (May 24, 2022).

Third, EPA points to its decision that States

“cannot rely on emission-reduction measures that are

not actually incorporated into [a] state plan,” which,

as with EPA’s decisions regarding relative

contributions, implausibly claims its disapprovals

were “based on” a determination of what is not

relevant. Resp. 35. EPA cites the portion of the Federal

Register where it rejected the argument—made by

only “[o]ne comment”—that States should be able to

rely on “emissions control measures” independently

required by the federal government even if those

measures are not “incorporated into and enforceable

under state law.” 88 Fed. Reg. at 9,376-77. EPA does

not identify any state plans that made this argument,

much less where this issue was the difference between

approval or disapproval. Id. at 9,376. Once again, this

is simply not a determination on which EPA’s

disapprovals were based.

In sum, none of EPA’s purported determinations

were the reason EPA disapproved Oklahoma’s and

Utah’s plans.

C. EPA’s

policy

unpersuasive.

arguments

are

EPA lastly resorts to policy. For instance, it

contends Petitioners’ interpretation would “limit D.C.

Circuit review of locally or regionally applicable EPA

actions to a vanishingly small category.” Resp. 48. But

Petitioners identify several instances where this

25

exception would apply. Supra 15-16. And Congress

has already determined that D.C. Circuit review of

local actions based on determinations of “nationwide

scope and effect” should be the exception, not the rule.

As a general matter, challenges to locally or regionally

applicable EPA actions should be reviewed in the

regional circuits. Br. 40-41. That is especially true of

state plan approvals or disapprovals, which are not

only explicitly provided for in the regional circuit

review provision but also inherently require EPA

deference to State judgments on state-specific issues.

Br. 4-5, 45-46.

The

agency

similarly

suggests

that

“[c]onsideration of the same basic legal challenges by

multiple circuits wastes judicial resources and creates

a substantial risk of inconsistent merits rulings.”

Resp. 49. But review of the same legal issues by

different circuits is the ordinary course. As the United

States elsewhere argues, this “ensur[es] that cases can

percolate among multiple circuits before they get to

this Court.” FDA v. R.J. Reynolds, No. 23-1187, Tr. 30

(Jan. 21, 2025); see Br. 55. That is neither surprising

nor a “waste[].” Contra Resp. 49.

CONCLUSION

The judgment of the court of appeals should be

reversed.

February 2025

Derek Brown

Attorney General

Respectfully submitted,

Gentner Drummond

Attorney General

26

Stanford E. Purser

Garry M. Gaskins, II

Solicitor General

Solicitor General

OFFICE OF THE UTAH

Jennifer L. Lewis

ATTORNEY GENERAL

Deputy Attorney General

Utah State Capitol Complex OKLAHOMA ATTORNEY

350 N. State St.,

GENERAL’S OFFICE

Ste. 230

313 N.E. 21st St.

Salt Lake City, UT 84114 Okla. City, OK 73105

William L. Wehrum

Mithun Mansinghani

WEHRUM ENVIRONMENTAL

Counsel of Record

LAW LLC

LEHOTSKY KELLER COHN

1629 K St., N.W.,

LLP

Ste. 300

629 W. Main St.

Washington, D.C. 20006 Oklahoma City, OK 73102

(512) 693-8350

Emily C. Schilling

mithun@lkcfirm.com

HOLLAND & HART LLP

222 S. Main St.,

Michael B. Schon

Ste. 2200

Drew F. Waldbeser

Salt Lake City, UT 84101 LEHOTSKY KELLER COHN

LLP

Kristina R. Van Bockern

200 Mass. Ave. N.W.

Aaron B. Tucker

Washington, DC 20001

HOLLAND & HART LLP

555 Seventeenth St.,

Ste. 3200

Denver, CO 80202

Counsel for Petitioner

State of Utah

Counsel for Petitioners

State of Oklahoma and

Oklahoma Department of

Environmental Quality