Petition for Writ of Certiorari — PacifiCorp, et al., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefMar 28, 2024

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No. ______

In the Supreme Court of the United States

PACIFICORP; DESERET GENERATION & TRANSMISSION

CO-OPERATIVE; UTAH MUNICIPAL POWER AGENCY;

UTAH ASSOCIATED MUNICIPAL POWER SYSTEMS;

OKLAHOMA GAS & ELECTRIC COMPANY; TULSA

CEMENT LLC, d/b/a CENTRAL PLAINS CEMENT

COMPANY LLC; REPUBLIC PAPERBOARD COMPANY

LLC; and WESTERN FARMERS ELECTRIC

COOPERATIVE, PETITIONERS,

U.S. ENVIRONMENTAL PROTECTION AGENCY and

MICHAEL REGAN, ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MEGAN BERGE

SARAH DOUGLAS

BAKER BOTTS L.L.P.

700 K Street N.W.

Washington, D.C. 20001

(415) 291-6233

megan.berge@bakerbotts.com

Attorneys for the

Oklahoma Industry

Petitioners

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

Attorneys for PacifiCorp

(Additional counsel listed on inside cover.)

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1489

Attorneys for the

Oklahoma Industry

Petitioners

EMILY A. O’BRIEN

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

MARIE BRADSHAW

DURRANT

STEVEN J. CHRISTIANSEN Assistant General

DAVID C. REYMANN

Counsel

PARR BROWN GEE

CHRISTIAN C. STEPHENS

& LOVELESS

Senior Attorney

101 South 200 East

PACIFICORP

Suite 700

1407 North Temple

Salt Lake City, UT 84111 Suite 320

(801) 532-7840

Salt Lake City, UT 84116

schristiansen@parrbrown.com

dreymann@parrbrown.com

CARROLL WADE

Attorneys for Deseret

MCGUFFEY III

Generation &

MELISSA HORNE

Transmission CoTROUTMAN PEPPER

Operative

HAMILTON SANDERS LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

Attorneys for PacifiCorp

(Additional counsel listed on following page.)

ALAN I. ROBBINS

DEBRA D. ROBY

THOMAS B. STEIGER III

WASHINGTON ENERGY

LAW LLP

900 17th St. NW

Suite 500-A

Washington, D.C. 20006

(703) 785-9270

arobbins@washington

energylaw.com

droby@washington

energylaw.com

tsteiger@washington

energylaw.com

Attorneys for Utah

Municipal Power Agency

H. MICHAEL KELLER

ARTEMIS D. VAMIANAKIS

FABIAN VANCOTT

95 South State Street

Suite 2300

Salt Lake City, UT 84111

(801) 531-8900

mkeller@fabianvancott.com

avamianakis@fabian

vancott.com

EMILY L. WEGENER

General Counsel

UTAH ASSOCIATED

MUNICIPAL POWER

SYSTEMS

155 North 400 West

Suite 480

Salt Lake City, UT 84103

(801) 566-3938

emily@uamps.com

Attorneys for Utah

Associated Municipal

Power Systems

QUESTION PRESENTED

Whether the Environmental Protection Agency’s

disapproval of a State Implementation Plan may only

be challenged in the D.C. Circuit under 42 U.S.C.

§ 7607(b)(1) if EPA packages that disapproval with

disapprovals of other States’ SIPs and purports to use

a consistent method in evaluating the state-specific

determinations in those SIPs.

PARTIES TO THE PROCEEDINGS

The Utah Industry Petitioners are PacifiCorp,

Deseret Generation & Transmission Co-Operative,

Utah Municipal Power Agency, and Utah Associated

Municipal Power Systems.

PacifiCorp, Deseret

Generation & Transmission Co-Operative, and Utah

Municipal Power Agency were the Petitioners in the

Tenth Circuit below in case number 23-9512 and are

Petitioners here. Utah Associated Municipal Power

Systems was the Petitioner in the Tenth Circuit below

in case number 23-9520 and is a Petitioner here.

The Oklahoma Industry Petitioners are

Oklahoma Gas & Electric Company; Tulsa Cement

LLC, d/b/a Central Plains Cement Company LLC;

Republic Paperboard Company LLC; and Western

Farmers Electric Cooperative. Oklahoma Gas &

Electric Company was the Petitioner in the Tenth

Circuit below in case number 23-9521 and is a

Petitioner here. Tulsa Cement LLC, d/b/a Central

Plains Cement Company LLC, and Republic

Paperboard Company LLC were the Petitioners in the

Tenth Circuit below in case number 23-9533 and are

Petitioners here.

Western Farmers Electric

Cooperative was the Petitioner in the Tenth Circuit

below in case number 23-9534 and is a

Petitioner here.

iii

The U.S. Environmental Protection Agency and

Michael Regan, in his official capacity as the

Administrator of the U.S. Environmental Protection

Agency, are the Respondents here and were the

Respondents in each of the Tenth Circuit cases below.

CORPORATE DISCLOSURE STATEMENTS

Petitioner PacifiCorp’s common stock is 100%

owned by PPW Holdings, LLC, a Delaware limited

liability company, which is, in turn, wholly owned by

Berkshire Hathaway Energy Company. Berkshire

Hathaway Energy Company is a majority-owned

subsidiary of Berkshire Hathaway Inc., a publicly

held corporation. No publicly held company directly

owns 10% or more of PacifiCorp’s common stock.

Petitioner Deseret Generation & Transmission

Co-Operative is a Utah non-profit corporation

operating as a wholesale generation and transmission

electric cooperative that is wholly owned by its

member electric cooperatives, none of which are

publicly traded. Deseret Generation & Transmission

Co-Operative does not have a parent corporation and

no publicly held company owns 10% or more of

its stock.

Petitioner Utah Municipal Power Agency is a

municipal power agency created pursuant to the

Interlocal Cooperation Act. Utah Code Ann. §§ 11-13101 et seq. Utah Municipal Power Agency is a not-forprofit body politic and corporate and political

subdivision of the State of Utah, and it does not have

a parent corporation or shareholders. As such, Utah

Municipal Power Agency has no information to

disclose pursuant to Rule 29.6.

Petitioner Utah Associated Municipal Power

Systems is a political subdivision of the State of Utah.

As such, Utah Associated Municipal Power Systems

has no information to disclose pursuant to Rule 29.6.

Petitioner Oklahoma Gas & Electric Company is

a corporation organized and existing under the laws

of the state of Oklahoma, and has its principal office

in Oklahoma City, Oklahoma. Oklahoma Gas &

Electric Company is a wholly-owned subsidiary of

OGE Energy Corp., a holding company that is exempt

from registration under the Public Utility Holding

Company Act of 2005. The common stock of OGE

Energy Corp. is publicly traded and listed on the New

York Stock Exchange. OGE Energy Corp. has no

parent company, and no publicly held company has a

10% or greater ownership interest in OGE

Energy Corp.

Petitioner Tulsa Cement LLC, doing business as

Central Plains Cement Company LLC, is a limited

liability company organized and existing under the

laws of the State of Delaware, and has its principal

office in Tulsa, Oklahoma. Central Plains Cement

Company LLC is a wholly-owned subsidiary of Eagle

Materials Inc., a corporation organized and existing

under the laws of the State of Delaware. The common

stock of Eagle Materials Inc. is publicly traded and

listed on the New York Stock Exchange. Eagle

Materials Inc. has no parent company, and no

publicly held company has a 10% or greater

ownership interest in Eagle Materials Inc.

Petitioner Republic Paperboard Company LLC is

a limited liability company organized and existing

under the laws of the State of Delaware, and has its

principal office in Lawton, Oklahoma. Republic

Paperboard Company LLC is a wholly-owned

subsidiary of Eagle Materials Inc., a corporation

organized and existing under the laws of the State of

Delaware. The common stock of Eagle Materials Inc.

is publicly traded and listed on the New York Stock

Exchange. Eagle Materials Inc. has no parent

company, and no publicly held company has a 10% or

greater ownership interest in Eagle Materials Inc.

Petitioner Western Farmers Electric Cooperative

has no parent corporations, and no shareholders own

10% or more of its stock.

vii

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of Rule 14.1(b)(iii):



Utah v. EPA, No.23-9509 (10th Cir.);



PacifiCorp v. EPA, No.23-9512 (10th Cir.);



Utah Associated Mun. Power Sys. v. EPA,

No.23-9520 (10th Cir.);



Oklahoma v. EPA, No.23-9514 (10th Cir.);



Okla. Gas & Elec. Co. v. EPA, No.23-9521

(10th Cir.);



Tulsa Cement LLC

(10th Cir.);



W. Farmers Elec. Coop. v. EPA, No.23-9534

(10th Cir.);



Utah v. EPA, No.23-1102 (D.C. Cir.) (protective

petition);



Oklahoma v. EPA, No.23-1103 (D.C. Cir.)

(protective petition);

EPA,

No.23-9533

viii



Okla. Gas & Elec. Co. v. EPA, No.23-1105

(D.C. Cir.) (protective petition);



Tulsa Cement LLC v. EPA,

(D.C. Cir.) (protective petition);



W. Farmers Elec. Coop. v. EPA, No.23-1107

(D.C. Cir.) (protective petition);



PacifiCorp v. EPA, No.23-1112 (D.C. Cir.)

(protective petition).

No.23-1106

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

CORPORATE DISCLOSURE STATEMENTS ........ iv

STATEMENT OF RELATED PROCEEDINGS ..... vii

PETITION FOR WRIT OF CERTIORARI .................1

DECISION BELOW ....................................................4

JURISDICTION ..........................................................5

STATUTORY AND REGULATORY

PROVISIONS INVOLVED .....................................5

STATEMENT OF THE CASE ....................................5

A. Legal Background .......................................5

B. Factual And Procedural Background .........8

REASONS FOR GRANTING THE PETITION .......22

I. As The Tenth Circuit Acknowledged, Its

Transfer Decision Created A Circuit Split

Over The Question Presented ........................22

II. It Is Imperative That This Court Decide The

Question Presented Now, Just As It Did In

Analogous Circumstances In National

Association Of Manufacturers........................27

III. The Tenth Circuit Wrongly Decided The

Question Presented ........................................35

CONCLUSION ..........................................................41

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR

THE

TENTH

CIRCUIT,

FILED

FEBRUARY 27, 2024 ............................................... 1a

APPENDIX B — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR

THE

TENTH

CIRCUIT,

FILED

FEBRUARY 16, 2024 ............................................. 18a

APPENDIX C — RELEVANT STATUTORY

PROVISIONS ......................................................... 26a

TABLE OF AUTHORITIES

Cases

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

705 F.3d 453 (D.C. Cir. 2013) ....................... 36, 37

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

572 U.S. 489 (2014)........................................... 6, 7

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980)..........................3, 7, 27, 28, 33

Hertz Corp. v. Friend,

559 U.S. 77 (2010)............................................... 30

Kentucky v. EPA,

No.23-3216, Dkt.39-2

(6th Cir. July 25, 2023) .....................18, 22, 24, 26,

35, 36, 37, 38, 39, 40

Mercantile Nat’l Bank at Dallas v. Langdeau,

371 U.S. 555 (1963)....................................... 30, 31

Michigan v. EPA,

268 F.3d 1075 (D.C. Cir. 2001) ............................. 5

Motor Vehicle Mfrs. Assn. of United States, Inc. v.

State Farm Mut. Automobile Ins. Co.,

463 U.S. 29 (1983)............................................... 40

xii

Nat’l Cable & Telecomm. Ass’n v. Brand X

Internet Servs.,

545 U.S. 967 (2005)............................................. 40

National Association of Manufacturers v.

Department of Defense,

583 U.S. 109 (2018)..............................3, 27, 33, 34

Navarro Sav. Ass’n v. Lee,

446 U.S. 458 (1980)............................................. 30

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016)............................... 25

Texas v. EPA,

No.23-60069, 2023 WL 7204840

(5th Cir. May 1, 2023) (per curiam) ...... 17, 22, 24,

25, 32, 35, 36,

37, 38, 39, 40

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

421 U.S. 60 (1975)............................................. 5, 6

Union Elec. Co. v. EPA,

427 U.S. 246 (1976)..................................... 6, 7, 18

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) .......16, 22, 24, 25, 26,

35, 37, 38, 39, 40, 41

Statutes And Rules

28 U.S.C. § 1254 ......................................................... 5

xiii

28 U.S.C. § 2112 ....................................................... 34

42 U.S.C. § 7401 ............................................... 5, 6, 32

42 U.S.C. § 7408 ......................................................... 5

42 U.S.C. § 7409 ................................................... 5, 28

42 U.S.C. § 7410 ..................... 5, 6, 7, 8, 11, 28, 29, 35,

36, 38, 40, 41

42 U.S.C. § 7491 ....................................................... 29

42 U.S.C. § 7607 ..............i, 1, 2, 5, 7, 8, 13, 22, 32, 34,

35, 37, 38, 39

Fed. R. App. 15 ......................................................... 40

Fed. R. Civ. P. 12 ...................................................... 29

Sup. Ct. R. 10 ............................................... 23, 28, 35

Other Authorities

80 Fed. Reg. 65,292 (Oct. 26, 2015) ........................... 8

87 Fed. Reg. 9,798 (Feb. 22, 2022)..................... 11, 12

87 Fed. Reg. 20,036 (Apr. 6, 2022)........................... 13

87 Fed. Reg. 31,470 (May 24, 2022) .................. 11, 36

88 Fed. Reg. 9,336 (Feb. 13, 2023).............. 12, 13, 36,

37, 38, 39

xiv

88 Fed. Reg. 36,654 (June 5, 2023).......................... 13

88 Fed. Reg. 49,295 (July 31, 2023)......................... 16

88 Fed. Reg. 67,102 (Sept. 29, 2023) ....................... 16

EPA, NAAQS Table (last updated Feb. 7, 2024) .... 29

EPA, Regional Haze Program (last updated Apr.

20, 2023) .............................................................. 29

PETITION FOR WRIT OF CERTIORARI

Section 307(b)(1) of the Clean Air Act (“CAA”)

establishes the venue for challenging certain

Environmental Protection Agency (“EPA”) actions,

including EPA decisions on state implementation

plans (“SIPs”) submitted by individual States. A

“locally or regionally applicable” action must be

venued in “the appropriate [regional] circuit,”

whereas a “nationally applicable” action (or an action

where EPA makes a valid determination of

“nationwide scope or effect”) is venued in the

D.C. Circuit. 42 U.S.C. § 7607(b)(1).

Here, the States of Utah and Oklahoma

challenged EPA’s disapprovals of their SIPs for the

interstate transport of ozone. Because the States,

along with affected Industry Petitioners, challenged

only the SIP disapprovals for Utah and Oklahoma,

they naturally filed their challenges in the Tenth

Circuit, the regional circuit where those States are

located. Other States and their local industries

followed the same approach, similarly challenging

EPA’s disapprovals of other individual States’ ozonetransport SIPs in the Fourth, Fifth, Sixth, Eighth,

Ninth, and Eleventh Circuits, respectively.

EPA, however, believes that all of these

challenges should have been brought only in the D.C.

Circuit and so requested transfer all of the challenges

to that venue. To support its transfer requests, EPA

argued that its decision to pack multiple disapprovals

of individual state plans into a single Federal Register

notice, along with references to its preferred and

allegedly consistently applied methodology, rendered

all of the SIP disapprovals, together, a single

“nationally applicable” action reviewable only in the

D.C. Circuit. 42 U.S.C. § 7607(b)(1).

The Courts of Appeals’ dispositions of EPA’s

motions to transfer have resulted in a clear circuit

split as to whether the States or EPA are correct on

the Question Presented: whether EPA’s packaging of

SIP disapprovals together and purported use of a

consistent methodology renders all such SIPs a single

national action that must be challenged only in the

D.C. Circuit. On one side of the split, the Fourth,

Fifth, Sixth, and Eighth Circuits agree with

Petitioners’ approach, holding that the local circuits

are the proper venue for challenging EPA’s SIP

disapprovals. These courts correctly answered the

Question Presented, explaining that SIPs are

quintessentially “locally or regionally applicable”

actions because they are state-specific in nature, id.—

regardless of how EPA packages or how allegedly

consistent EPA acts in evaluating those SIPs. The

Tenth Circuit, however, agreed with EPA, concluding

that the D.C. Circuit is the only proper venue for the

challenges to the Utah SIP and Oklahoma SIP

disapprovals. The Tenth Circuit explicitly rejected

the reasoning of its sister circuits, while relying upon

the dissenting opinions in those cases. Finally, the

Ninth and Eleventh Circuits both have the Question

Presented pending before them.

This Court should grant review to resolve this

important circuit split, while bringing order to the

chaos that the split created.

As this Court has previously recognized in the

context of Section 307(b)(1)—the provision at issue

here—“determining the locus of judicial review of the

actions of EPA” is “importan[t]” enough to justify a

grant of certiorari. Harrison v. PPG Indus., Inc., 446

U.S. 578, 586 (1980).

Clarity over preliminary

matters such as venue is essential for the orderly

litigation of important federal issues, and questions of

the appropriate venue to challenge EPA action on

SIPs regularly arise, given the frequency with which

States submit SIPs to EPA and the balance of federal

and state authority in the CAA.

This circuit split, arising in the context of ongoing

litigation

over

twelve

ozone-transport

SIP

disapprovals, calls out for immediate review and is

analogous to the petition that this Court granted in

National Association of Manufacturers v. Department

of Defense (“NAM”), 583 U.S. 109 (2018). In NAM, the

Sixth Circuit and district courts took different

positions as to the proper federal forum for

adjudicating ongoing challenges to a rule issued by

EPA under the Clean Water Act. Here, like in NAM,

there is a split over the proper federal forum—but this

time for challenges to disapprovals of ozone-transport

SIPs that EPA only lumped together in a single

Federal Register notice at the final rule stage—with

the split here being more pronounced.

Absent

immediate review from this Court, challenges to the

ozone-transport SIP disapprovals of ten sovereign

States will be adjudicated in regional circuits,

whereas the SIP disapprovals of Utah’s and

Oklahoma’s ozone-transport SIPs will be decided by

the D.C. Circuit. In other words, absent this Court’s

review, important rights of either two or ten sovereign

States will be adjudicated in the wrong venue.

This Court should bring order to this chaos by

granting this Petition.

DECISION BELOW

The Tenth Circuit’s February 27, 2024, decision

granting in part EPA’s motions to dismiss or transfer

and directing transfer is unreported but is available

at 2024 WL 799356 and is reproduced at

Pet.App.1a–17a.

JURISDICTION

The Tenth Circuit entered its order granting in

part EPA’s motions to dismiss or transfer and

directing transfer on February 27, 2024. Pet.App.1a–

17a. This Court has jurisdiction to review that order

under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant portions of 42 U.S.C. § 7607 and 42

U.S.C. § 7410 are set forth at Pet.App.26a–32a.

STATEMENT OF THE CASE

A. Legal Background

The CAA creates a cooperative federalism regime

to regulate air pollution. See 42 U.S.C. § 7401;

Michigan v. EPA, 268 F.3d 1075, 1083 (D.C. Cir.

2001); accord Train v. Nat. Res. Def. Council, Inc., 421

U.S. 60, 79 (1975) (“[S]o long as the ultimate effect of

a State’s choice of emission limitations is compliance

with the [CAA], the State is at liberty to adopt

whatever mix of emission limitations it deems best

suited to its particular situation.”). Congress directed

EPA to establish national ambient air quality

standards (“NAAQS”) for pollutants, such as ozone,

see 42 U.S.C. §§ 7408–09, and then gave States the

lead responsibility to develop programs to regulate air

quality to meet the NAAQS, id. § 7410(a)(1); accord

id. § 7401(a)(3) (“air pollution prevention . . . and air

pollution control at its source is the primary

responsibility of States and local governments”).

A State meets its CAA responsibilities by creating

a SIP, which must include provisions that satisfy the

State’s interstate-transport obligations under

Section 110 of the CAA. See Union Elec. Co. v. EPA,

427 U.S. 246, 249–50 (1976); see generally 42 U.S.C.

§ 7410(a).

A State has “wide discretion in

formulating” a SIP, Union Elec., 427 U.S. at 250, and

“is at liberty to adopt whatever mix of emission

limitations it deems best suited to its particular

situation,” “so long as the ultimate effect of [the]

State’s choice of emission limitations is compliance

with the national standards for ambient air,” Train,

421 U.S. at 79. As relevant here, Section 110 provides

that “upwind States” must “reduce emissions to

account for pollution exported beyond their borders”

that “contribute[s] significantly” to downwind States’

compliance. 42 U.S.C. § 7410(a)(2)(D); see also EPA

v. EME Homer City Generation, L.P., 572 U.S. 489,

499 (2014).

Specifically, a SIP must “contain

adequate provisions . . . prohibiting . . . any source or

other type of emissions activity within the State from

emitting any air pollutant in amounts which will . . .

contribute significantly to nonattainment in, or

interfere with maintenance by, any other State with

respect to any

§ 7410(a)(2)(D).

...

[NAAQS].”

U.S.C.

To ensure that the SIP complies with the CAA,

EPA must review each State’s proposed SIP on an

individual basis. Id. § 7410(k)(3); Union Elec., 427

U.S. at 250. EPA “shall approve” a SIP if it “meets all

the applicable requirements” of the Act. 42 U.S.C.

§ 7410(k)(3); see Union Elec., 427 U.S. at 250. If EPA

determines that a State has failed to submit an

adequate SIP, EPA must promulgate a “Federal

implementation plan” (“FIP”) for the State within two

years of that determination, “unless the State corrects

the deficiency” before EPA issues a FIP. 42 U.S.C.

§ 7410(c)(1); see EME Homer, 572 U.S. at 498.

Section 307(b)(1) establishes the appropriate

venue for a petition for review challenging EPA action

under the CAA, including petitions challenging EPA’s

approval or disapproval of SIPs.

42 U.S.C.

§ 7607(b)(1); see Harrison, 446 U.S. at 584–85.

Section 307(b)(1) provides three venue pathways.

Section 307(b)(1)’s first sentence provides that a

petition for review challenging “nationally applicable

. . . final action taken[ ] by the Administrator . . . may

be filed only in the United States Court of Appeals for

the District of Columbia.” 42 U.S.C. § 7607(b)(1).

Section 307(b)(1)’s second sentence provides that “a

petition for review of the Administrator’s action in

approving or promulgating any implementation plan”

or other final agency action that is “locally or

regionally applicable may be filed only in the United

States Court of Appeals for the appropriate circuit.”

Id. Finally, Section 307(b)(1)’s third sentence creates

an alternative venue pathway for challenges to a local

or regional action that nevertheless has a nationwide

scope or effect, notwithstanding the action’s local or

regional nature. Id. Under this third sentence, the

D.C. Circuit is the proper venue for a petition

challenging EPA’s local/regional action if that 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.” Id. This

third venue pathway requires a court to determine

both that EPA made a determination of nationwide

scope or effect and that the local or regional action is

actually based upon a determination of nationwide

scope and effect. Id.

B. Factual And Procedural Background

1. In 2015, EPA lowered the NAAQS for groundlevel ozone, for which NOx is a precursor, to 70 parts

per billion. 80 Fed. Reg. 65,292 (Oct. 26, 2015). That

triggered the States’ duty to develop and submit SIPs

to meet this new NAAQs within three years, by 2018.

See 42 U.S.C. § 7410(a)(1).

Following EPA’s publication of the 2015 ozone

NAAQS, the State of Utah developed its ozonetransport SIP to comply with this NAAQS. Joint

Deferred App., Vol. I at 0074–112, Nos.23-9509, et al.,

Doc.11037455 (10th Cir. Oct. 17, 2023) (hereinafter

“JDA”). Utah closely collaborated with EPA for over

a year to develop this SIP, with EPA commenting on

drafts of Utah’s SIP. See JDA, Vol. I at 0069–73. EPA

encouraged Utah to follow approaches discussed in

certain EPA guidance and recommended that Utah

elaborate on certain components in its SIP. See JDA,

Vol. I at 0072, 0146. After incorporating this feedback

from EPA, Utah concluded in its SIP that its

contributions to downwind-state air quality were not

significant and, therefore, that additional emission

reductions in Utah were not necessary. See JDA,

Vol. I at 0092–100 (Utah’s SIP). This conclusion

relied upon state- and region-specific facts and

analyses relating to Utah’s unique topographical,

geographical, and meteorological characteristics.

JDA, Vol. I at 0097–100, 0147 & nn.7–8, 10; JDA,

Vol. II at 0183 & n.1, 0195–96. For example, Utah

considered the significant and outsized impact of

uncontrollable sources of ozone like wildfires and

international emissions on Colorado, the downwind

State most likely to be affected by emissions from

Utah. JDA, Vol. I at 0097–98. Utah submitted its

proposed SIP to EPA on October 24, 2019. JDA, Vol. I

at 0089.

Two months later, EPA made an

incompleteness determination on the SIP, alleging

that Utah had not provided adequate public notice.

84 Fed. Reg. 66,612 (Dec. 5, 2019). Utah then

submitted a revised SIP the next month after

providing additional opportunities for public

participation. JDA, Vol. I at 0074–75.

Oklahoma submitted its SIP on October 25, 2018.

Joint Deferred App., Vol. I at 0133, Nos.23-9521, et

al., Doc.11041131 (10th Cir. Nov. 1, 2023)

(hereinafter “J. App’x”).

In its SIP, Oklahoma

concluded that in-state sources would not contribute

significantly to downwind nonattainment or

maintenance issues in any other State, based on the

State’s holistic review of multiple local and regional

factors impacting the “significance” of the State’s

contributions.

J. App’x, Vol. I at 0170–73.

Oklahoma’s analysis centered on the State’s unique

meteorological

features

and

the

special

characteristics of its electricity generation market,

relying in part on regional modeling developed to

address some of the regional meteorological

conditions affecting ozone formation and accounting

for recent trends in regional ozone emissions.

J. App’x, Vol. I at 0168–73. Oklahoma likewise made

state-specific

judgments

regarding

modeling

performance, contribution thresholds, and trends at

specific downwind receptors in analyzing its

interstate transport obligations.

J. App’x, Vol. I

at 0175–77.

2. After an unexplained (and unlawful, 42 U.S.C.

§ 7410(k)(2)) delay of more than two years, EPA

proposed to disapprove Utah’s SIP. 87 Fed. Reg.

31,470 (May 24, 2022); JDA, Vol. I at 0130. In

proposing to disapprove Utah’s SIP, EPA disagreed

with Utah’s determination that sources within Utah

did not significantly contribute to nonattainment of

the 2015 NAAQS for ozone for certain areas in

Colorado. 87 Fed. Reg. at 31,483. To reach that

conclusion, EPA disagreed with each of the state- and

region-specific findings that Utah had made in its SIP

submission, see id. at 31,477, 31,482, as well as with

Utah’s state-specific analysis justifying the threshold

Utah had chosen for determining significant

contribution, id. at 31,478. So, for example, EPA

dismissed Utah’s conclusion that “contributions from

other sources, including international or nonanthropogenic

emissions,”

were

important

considerations for the overall impact to Colorado as

an “excuse” by Utah to avoid addressing its own

emissions. Id. at 31,482.

EPA similarly delayed acting on Oklahoma’s SIP

submission, proposing disapproval in a separate,

regionally limited Federal Register notice over three

years after the State’s submittal. 87 Fed. Reg. 9,798

(Feb. 22, 2022). The substance of EPA’s analysis

focused on the local and regional matters at the core

of Oklahoma’s SIP submission, finding that

Oklahoma’s assessment of a higher contribution

threshold was not adequately justified, rejecting

Oklahoma’s analysis of collective contribution, and

finding technical flaws in Oklahoma’s analysis of

specific downwind receptors using a state-developed

regional pollution model. See id. at 9,818–24.

After evaluating Utah’s and Oklahoma’s SIPs

separately in proposed disapprovals, on February 13,

2023, EPA combined its final disapprovals of Utah’s

SIP and Oklahoma’s SIP within a single Federal

other SIPs and a deferral on two other States’ SIPs.

88 Fed. Reg. 9,336, 9,337–38, 9,354 (Feb. 13, 2023).

EPA made clear that it judged each SIP “in light of

the facts and circumstances of each particular state’s

submission.” Id. at 9,340; see also id. at 9,354 (“[T]he

contents of each individual state’s submission were

evaluated on their own merits[.]”).

For EPA’s

disapprovals of Utah’s SIP and Oklahoma’s SIP, in

particular, EPA provided only “a brief, high level

overview” in the form of one-paragraph analyses that

largely reiterated and incorporated EPA’s points in its

proposed disapprovals of Utah’s SIP and Oklahoma’s

SIP. Id. at 9,354, 9,359–60.

EPA then asserted that any challenges to any of

its SIP disapprovals included in this Federal Register

notice must be filed in the D.C. Circuit under the first

sentence of Section 307(b)(1) because EPA’s actions

were “nationally applicable” or, in the alternative,

under the third sentence of Section 307(b)(1) because

EPA had made a finding of “nationwide scope or

effect.”

Id. at 9,380–81 (quoting 42 U.S.C.

§ 7607(b)(1)).

3. On April 6, 2022—before EPA had disapproved

Utah’s SIP and Oklahoma’s SIP—EPA proposed to

issue FIPs for Utah and Oklahoma, in addition to

issuing FIPs for 21 other States. 87 Fed. Reg. 20,036,

20,038 (Apr. 6, 2022). On June 5, 2023, EPA

published a final rule imposing those FIPs on Utah

and Oklahoma, as well as on the 21 other States. 88

Fed. Reg. 36,654, 36,656 (June 5, 2023). EPA set the

effective date of these FIPs for August 4, 2023. Id.

at 36,654. This Court recently heard oral argument

on emergency applications to stay these FIPs filed by

the States of Ohio, Indiana, and West Virginia,

nationwide industry organizations, and other parties.

Ohio v. EPA, No.23A349 (U.S. Feb. 21, 2024).

4. Petitioners are the Utah Industry Petitioners,

who are industry members with significant interests

in Utah, and the Oklahoma Industry Petitioners, who

are industry members with significant interests in

Oklahoma. See generally Pet.App.9a. The Utah

Industry Petitioners filed their petitions for review in

the Tenth Circuit challenging EPA’s disapproval of

Utah’s SIP and, separately, the Oklahoma Industry

Petitioners filed their petitions for review in the

Tenth Circuit challenging EPA’s disapproval of

Oklahoma’s SIP. Pet.App.9a.1 The States of Utah

and Oklahoma also filed their own separate petitions

for review in the Tenth Circuit, likewise challenging

EPA’s disapproval of their own SIPs. See Pet.App.9a.

In these petitions for review, Petitioners, Utah, and

Oklahoma specified that they were challenging only

EPA’s disapprovals of Utah’s SIP and Oklahoma’s

SIP, respectively.2 Thus, Petitioners, Utah, and

Oklahoma asserted that venue for their respective

challenges was appropriate in the Tenth Circuit,

under Section 307(b)(1).

See Pet., PacifiCorp v. EPA, No.23-9512, Doc.10979118

(10th Cir. Feb. 23, 2023); Pet., Utah Associated Mun. Power Sys.

v. EPA, No.23-9520, Doc.10983701 (10th Cir. Mar. 15, 2023);

Pet., Okla. Gas & Elec. Co. v. EPA, No.23-9521, Doc.10983983

(10th Cir. Mar. 16, 2023); Pet., Tulsa Cement LLC v. EPA, No.239533, Doc.10991428 (10th Cir. Apr. 13, 2023); Pet., W. Farmers

Elec. Coop. v. EPA, No.23-9534, Doc.10991510 (10th Cir.

Apr. 13, 2023).

See Pet. at 2, Utah v. EPA, No.23-9509, Doc.10976607

(10th Cir. Feb. 13, 2023); Pet. at 2, PacifiCorp, No.23-9512,

Doc.10979118; Pet. at 2, Utah Associated Mun. Power Sys.,

No.23-9520, Doc.10983701; Pet. at 2, Oklahoma v. EPA, No.239514, Doc.10980562 (10th Cir. Mar. 2, 2023); Pet. at 2, Okla. Gas

& Elec. Co., No.23-9521, Doc.10983983; Pet. at 2, Tulsa Cement

LLC, No.23-9533, Doc.10991428; Pet. at 2, W. Farmers Elec.

Coop., No.23-9534, Doc.10991510.

In addition to filing petitions for review in the

Tenth Circuit, Petitioners, Utah, and Oklahoma filed

protective petitions in the D.C. Circuit. See Pet. at 2,

Utah v. EPA, No.23-1102, Doc.1994857 (D.C. Cir. Apr.

13, 2023); see also Pet. at 3–4, Oklahoma v. EPA,

No.23-1103, Doc.1994881 (D.C. Cir. Apr. 13, 2023);

Pet. at 2, Okla. Gas & Elec. Co. v. EPA, No.23-1105,

Doc.1994865 (D.C. Cir. Apr. 14, 2023); Pet. at 2, Tulsa

Cement LLC v. EPA, No.23-1106, Doc.1994912 (D.C.

Cir. Apr. 14, 2023); Pet. at 2, W. Farmers Elec. Coop.

v. EPA, No.23-1107, Doc.1994920 (D.C. Cir. Apr. 14,

2023); Pet. at 2, PacifiCorp v. EPA, No.23-1112,

Doc.1995594 (D.C. Cir. Apr. 14, 2023). After motions

practice where EPA attempted to force Petitioners to

litigate their protective petitions on the merits in the

D.C. Circuit, the D.C. Circuit ordered that these

protective petitions be held in abeyance. Order, Utah,

Nos.23-1102, et al., Doc.2005201 (D.C. Cir. June 27,

2023) (per curiam).

Thereafter, the parties and the Tenth Circuit

engaged in extensive venue and stay proceedings.

After EPA moved the Tenth Circuit to transfer venue

for the petitions to the D.C. Circuit, Pet.App.9a,3 the

Tenth Circuit—Judges Tymkovich, Bacharach, and

3 In each of EPA’s venue-transfer motions discussed in this

Petition, EPA also moved, in the alternative, for dismissal for

improper venue.

Rossman—entered an order referring EPA’s motions

to transfer venue to the merits panel. Order, Utah,

Nos.23-9509, et al., Doc.10994985 (10th Cir. Apr. 27,

2023). Then, on July 27, 2023, the Tenth Circuit—

Judges Tymkovich and Carson—granted motions to

stay the disapprovals of Utah’s SIP and Oklahoma’s

SIP, finding that “petitioners have satisfied their

burden as to each” of the stay factors. Order at 4,

Utah, Nos.23-9509, et al., Doc.11016742 (10th Cir.

July 27, 2023). The Tenth Circuit ordered, and the

parties subsequently completed, full briefing on the

merits, see Order at 3–4, Utah, Nos.23-9509, et al.,

Doc.11002290 (10th Cir. Apr. 30, 2023); Minute

Order, Utah, Nos.23-9509, et al., Doc.11038946 (10th

Cir. Oct. 25, 2023), with the Court setting the case for

oral argument on March 21, 2024, Notice, Utah,

Nos.23-9509, et al., Doc.11058134 (10th Cir.

Jan. 10, 2024).

5. Meanwhile, ten other States and/or their local

industries challenged EPA’s disapprovals of their

ozone-transport SIPs in their regional circuits. See 88

Fed. Reg. 49,295, 49,296–97 (July 31, 2023); 88 Fed.

Reg. 67,102, 67,103–04 (Sept. 29, 2023).

In the Fourth Circuit, the State of West Virginia

challenged EPA’s disapproval of West Virginia’s SIP.

West Virginia v. EPA, 90 F.4th 323, 325 (4th Cir.

2024).

West Virginia moved to stay EPA’s

disapproval as to West Virginia’s SIP, and EPA

moved to transfer the petition to the D.C. Circuit. Id.

After oral argument on these issues, the Fourth

Circuit rejected EPA’s transfer motion, holding that it

was the appropriate venue under Section 307(b)(1)’s

second sentence, id. at 327–31, and stayed EPA’s

disapproval as to West Virginia’s SIP, id. at 331–32.

The parties have not yet concluded merits briefing.

In the Fifth Circuit, the States of Texas,

Mississippi, and Louisiana, along with local industry,

challenged EPA’s disapproval of Texas’s SIP,

Mississippi’s SIP, and Louisiana’s SIP. Texas v. EPA,

No.23-60069, 2023 WL 7204840, at *3 (5th Cir. May

1, 2023) (per curiam). The challengers moved to stay

EPA’s disapprovals, and EPA moved to transfer to the

D.C. Circuit. Id. (addressing stay motions as to

Texas’s SIP and Louisiana’s SIP, as well as EPA’s

transfer motion as to all petitions); Order, Texas,

No.23-60069, Dkt.359 (5th Cir. June 8, 2023)

(addressing stay motion as to Mississippi’s SIP). The

Fifth Circuit rejected EPA’s transfer motion, holding

in a detailed opinion that the regional circuit court

was the appropriate venue, Texas, 2023 WL 7204840,

at *3–6, and then it stayed EPA’s disapprovals as to

Texas’s SIP, Louisiana’s SIP, and Mississippi’s SIP,

id. at *6–11; Order, Texas, No.23-60069, Dkt.359.

The parties have concluded merits briefing on the

petitions, and the Fifth Circuit heard oral argument

on December 4, 2023. See Notice, Texas, No.23-60069,

Dkt.511 (5th Cir. Dec. 4, 2023).

In the Sixth Circuit, the Commonwealth of

Kentucky

challenged

EPA’s

disapproval

Kentucky’s SIP. Order at 1, Kentucky v. EPA, No.233216, Dkt.39-2 (6th Cir. July 25, 2023). Kentucky

moved to stay EPA’s disapproval, and EPA moved to

transfer the petition to the D.C. Circuit. Id. at 1–2.

The Sixth Circuit held that it was the appropriate

venue and so denied EPA’s motion, id. at 2–6, and

then it stayed EPA’s disapproval, id. at 6–9. The

parties have concluded merits briefing, and the Sixth

Circuit has set oral argument for May 8, 2024.

Notice, Kentucky, No.23-3216, Dkt.80 (6th Cir.

Mar. 11, 2024).

In the Eighth Circuit, the States of Arkansas and

Missouri, as well as industry members and other

entities in Minnesota, separately challenged EPA’s

disapprovals of Arkansas’s SIP, Missouri’s SIP, and

Minnesota’s SIP. See Pet., Arkansas v. EPA, No.231320, Doc.5246849 (8th Cir. Feb. 16, 2023); Pet.,

Missouri v. EPA, No.23-1719, Doc.5265074 (8th Cir.

Apr. 13, 2023); Pet., Allete, Inc. v. EPA, No.23-1776,

Doc.5265614 (8th Cir. Apr. 14, 2023) (Minnesota).4

See also Pet., Union Elec. Co. v. EPA, No.23-1751,

Doc.5265392 (8th Cir. Apr. 13, 2023); Pet., Sw. Elec. Power Co.

v. EPA, No.23-1765, Doc.5265470 (8th Cir. Apr. 14, 2023); Pet.,

City Utils. of Springfield v. EPA, No.23-1774, Doc.5265562 (8th

Cir. Apr. 14, 2023); Pet., Hybar, LLC v. EPA, No.23-1777,

These challengers moved to stay EPA’s disapprovals,

and EPA moved to transfer. See, e.g., Mot. to Transfer

or Dismiss, Arkansas, No.23-1320, Doc.5256958 (8th

Cir. Mar. 20, 2023). The Eighth Circuit denied EPA’s

transfer motions, see, e.g., Order, Arkansas, No.231320, Doc.5269098 (8th Cir. Apr. 25, 2023); Order,

Missouri, No.23-1719, Doc.5281126 (8th Cir. May 26,

2023); Order, Allete, No.23-1776, Doc.5281229 (8th

Cir. May 26, 2023), and then stayed EPA’s

disapprovals as to Arkansas’s SIP, Missouri’s SIP,

and Minnesota’s SIP, see, e.g., Order, Arkansas,

No.23-1320, Doc.5280996 (8th Cir. May 25, 2023);

Order, Missouri, No.23-1719, Doc.5281126 (8th Cir.

May 26, 2023); Order, Allete, No.23-1776,

Doc.5292580 (8th Cir. July 5, 2023). The parties have

concluded merits briefing, and the Eighth Circuit has

not yet set an oral argument date.

In the Ninth Circuit, an industry member in

Nevada challenged EPA’s disapproval of Nevada’s

SIP. Pet., Nevada Cement Co. v. EPA, No.23-682,

Dkt.1 (9th Cir. Apr. 14, 2023). That industry member

moved to stay EPA’s disapproval, and EPA moved to

transfer to the D.C. Circuit. Order, Nevada Cement

Co., No.23-682, Dkt.27.1 (9th Cir. July 3, 2023). The

Doc.5265597 (8th Cir. Apr. 14, 2023); Pet., Ark. League of Good

Neighbors v. EPA, No.23-1778, Doc.5265611 (8th Cir.

Apr. 14, 2023).

Ninth Circuit referred EPA’s transfer motion to the

merits panel and then stayed EPA’s disapproval as to

Nevada’s SIP. Id. at 1–2. The State of Nevada was

also then granted permission to intervene in support

of the industry member. Id. at 1. The Ninth Circuit

has temporarily closed the docket for administrative

purposes until May 6, 2024, to allow the parties to

engage in mediation. Order, Nevada Cement Co.,

No.23-682, Dkt.40.1 (9th Cir. Dec. 6, 2023); Notice,

Nevada Cement Co., No.23-682, Dkt.43 (9th Cir. Feb.

28, 2024).5

Finally, in the Eleventh Circuit, the State of

Alabama, along with two industry members,

challenged EPA’s disapproval of Alabama’s SIP. Pet.,

Alabama v. EPA, No.23-11173, Dkt.1 (11th Cir. Apr.

13, 2023); Pet., Ala. Power Co. v. EPA, No.23-11196,

Dkt.1 (11th Cir. Apr. 14, 2023). These challengers

moved to stay EPA’s disapproval, see Order, Alabama,

Nos.23-11173, -11196, Dkt.33-2 (11th Cir. Aug. 17,

2023), and the Eleventh Circuit requested sua sponte

that the parties address the question of whether the

challenges were properly before that court,

Jurisdictional Question, Alabama, Nos.23-11173,

-11196, Dkts.9-1, 9-2 (11th Cir. Apr. 28, 2023). In

5 The State of Nevada also filed a petition for review in the

D.C. Circuit. Pet., Nevada v. EPA, No.23-1113, Doc. 1995624

(D.C. Cir. Apr. 14, 2023).

response, the challengers argued that the Eleventh

Circuit was the proper court to hear their challenges,

Joint Resp., Alabama, Nos.23-11173, -11196, Dkt.13

at 1 (11th Cir. May 5, 2023), while EPA requested

that the Eleventh Circuit transfer the challenges to

the D.C. Circuit, EPA Resp., Alabama, Nos.23-11173,

-11196, Dkt.14 at 1 (11th Cir. May 12, 2023). The

Eleventh Circuit referred the question to the merits

panel, Order, Alabama, Nos.23-11173, -11196, Dkt.24

(11th Cir. July 12, 2023), and then stayed EPA’s

disapproval as to Alabama’s SIP, Order, Alabama,

Nos.23-11173, -11196, Dkt.33-2. The parties have

concluded merits briefing, and the Eleventh Circuit

has not yet set oral argument.

6. About a month before the oral argument date

that the Tenth Circuit had set for the Utah and

Oklahoma cases, the merits panel of the Tenth

Circuit—Judges Moritz, Ebel, and Rossman—granted

EPA’s motion to transfer to the D.C. Circuit.

Pet.App.18a–25a (granting motion to transfer, while

indicating that a decision directing transfer would

issue in due course); Pet.App.1a–17a (directing

transfer, while providing the merits panel’s

reasoning). The Tenth Circuit held that the D.C.

Circuit was the appropriate venue under

Section 307(b)(1)’s first sentence, while declining to

opine on the application of Section 307(b)(1)’s third

sentence. Pet.App.9a–11a, 17a n.8. The Tenth

Circuit held that EPA’s actions here are “nationally

applicable” because EPA “disapprov[ed] SIPs from 21

states across the country,” while “appl[ying] a

uniform statutory interpretation and common

analytical methods.” Pet.App.11a. The Tenth Circuit

“recognize[d] that the Fourth, Fifth, and Sixth

Circuits recently reached the contrary conclusion:

each denied the EPA’s motions to transfer petitions

challenging the same final rule at issue here.”

Pet.App.15a (citing West Virginia, 90 F.4th at 331;

Texas, 2023 WL 7204840, at *1; and Order at 6,

Kentucky, No.23-3216, Dkt.39-2). “But in [the Tenth

Circuit’s] view, all three courts strayed from

§ 7607(b)(1)’s text and instead applied a petitionfocused approach that [the Tenth Circuit] and other

circuits have rejected.” Pet.App.15a. The Tenth

Circuit also noted that “[t]he Eighth Circuit also

denied the EPA’s transfer motions, but [the Eighth

Circuit] simply issued summary orders containing no

analysis.” Pet.App.15a n.6 (citing Order, Arkansas,

No.23-1320, Doc.5269098).

REASONS FOR GRANTING THE PETITION

As The Tenth Circuit Acknowledged, Its

Transfer Decision Created A Circuit Split

Over The Question Presented

There is an acknowledged circuit split over the

Question Presented, with the Tenth Circuit on the one

side, and multiple other circuits squarely on the

other. This division of authority satisfies this Court’s

standard for granting certiorari. Sup. Ct. R. 10(a).

The Tenth Circuit below held that EPA could

transform a locally or regionally applicable final

action on a SIP into a nationally applicable action—

thereby making the D.C. Circuit the only venue to

hear petitions challenging that action, under Section

307(b)(1)—by packaging that action with other

actions on other SIPs and using a consistent

methodology in analyzing the SIP submittals.

Pet.App.10a–12a. As the Tenth Circuit explained,

EPA’s packaged actions here are “nationally

applicable” in its view because EPA “disapprov[ed]

SIPs from 21 states across the country,” while

“appl[ying] a uniform statutory interpretation and

common analytical methods, which required the

agency to examine the overlapping and interwoven

linkages between upwind and downwind states in a

consistent manner.” Pet.App.11a. The Tenth Circuit

concluded that EPA’s disapprovals of Utah’s SIP and

Oklahoma’s SIP were nationally applicable actions

despite the fact that EPA issued separate “proposed

rules” and “could have chosen to issue standalone

final SIP disapprovals” for each of these States.

Pet.App.12a (emphasis omitted).

In the Tenth

Circuit’s view, the action here is “a nationally

applicable final rule . . . disapproving SIPs from 21

states across the country—not just one—because

those states failed to meet their good-neighbor

obligations.” Pet.App.12a.

The Fourth, Fifth, Sixth, and Eighth Circuits

squarely split with the Tenth Circuit over the

Question Presented, as the Tenth Circuit recognized.

Pet.App.15a & n.7 (citing West Virginia, 90 F.4th

at 331; Texas, 2023 WL 7204840, at *1; Order,

Kentucky, No.23-3216, Dkt.39-2; Arkansas, No. 231320 (8th Cir. Apr. 25, 2023)).

The Fifth Circuit decided the issue first, holding

that EPA’s disapprovals are locally or regionally

applicable

actions

under

Section

307(b)(1),

notwithstanding the fact that EPA “packaged the[ ]

disapprovals together with the disapprovals of [ ]

other States” in a single Federal Register notice.

Texas, 2023 WL 7204840, at *3–6. “[T]he CAA makes

clear that the EPA’s relevant actions for purposes of”

determining the appropriate venue under Section

307(b)(1) “are its various SIP denials.” Id. at *4. The

Fifth Circuit also rejected EPA’s alternative

argument that venue is proper in the D.C. Circuit

under Section 307(b)(1)’s third sentence, concluding

that the “SIP disapprovals at issue here were plainly

based on a number of intensely factual

determinations unique to each State,” not on “a

determination of nationwide scope or effect.” Id. at *5

(citations omitted). This holding follows from the

Fifth Circuit’s previous decision in Texas v. EPA, 829

F.3d 405 (5th Cir. 2016), where it similarly held that

EPA’s disapprovals of Oklahoma’s and Texas’s

regional-haze SIPs were not “based on any

determinations that have nationwide scope or

effect”—and thus were properly challenged in the

regional circuit, not the D.C. Circuit—because EPA

based those disapprovals on “a number of intensely

factual determinations.”

Id. at 419–24.

Judge

Douglas dissented from the Fifth Circuit’s venue

holding, taking the same approach that the Tenth

Circuit later adopted in this case. Texas, 2023 WL

7204840, at *11–13 (Douglas, J., dissenting).

The Fourth Circuit has taken the same approach

to the Fifth Circuit on the Question Presented,

issuing a published opinion after holding oral

argument. West Virginia, 90 F.4th 323. The Fourth

Circuit held that EPA’s disapprovals of each State’s

SIP “was based entirely on [each State’s] particular

circumstances

and

its

analysis

those

circumstances,” meaning those disapprovals were

“locally or regionally applicable.”

Id. at 329

(Niemeyer, J., joined by Quattlebaum, J.) (referencing

West Virginia’s SIP, in particular). Thus, “the

relevant agency action” for Section 307(b)(1) purposes

is “EPA’s disapproval of [each State’s] SIP[,] [a]nd the

fact that the EPA consolidated its disapprovals in a

single final rule does not, by that fact alone, make its

21 separate decisions included within its final rule

either a single nationally applicable action or one

based on a determination of nationwide scope or

effect.” Id. at 330. Finally, Section 307(b)(1) “does not

focus on whether national standards were applied,”

but rather on “whether the final action is nationally

applicable”; otherwise “there never could be a local or

regional action . . . because every action of the EPA

purportedly applies a national standard created by

the national statute and its national regulations.” Id.

at 329–30.

Judge Thacker dissented, generally

taking the same view as the Tenth Circuit on the

Question Presented.

Id. at 332–35 (Thacker,

J., dissenting).

The Sixth Circuit has taken the same approach as

the Fourth and Fifth Circuits. Order, Kentucky,

No.23-3216, Dkt.39-2. It too concluded that the

“relevant unit of administrative action here is EPA’s

individual SIP denials” and that EPA’s “packag[ing]”

of each State’s disapproval with other States “doesn’t

matter.” Id. at 4 (McKeague & Nalbandian, JJ.)

(referencing Kentucky’s SIP, in particular). Further,

it concluded that each SIP disapproval was locally or

regionally applicable “[b]ecause the denial and legal

impact of [each State’s] SIP affects only [that State].”

Id. at 5. Finally, the Sixth Circuit rejected EPA’s

claim that the SIP disapprovals were “based on a

determination of nationwide scope or effect.” Id. at 5–

6. Judge Cole dissented, and he too took similar views

as the Tenth Circuit on the Question Presented. Id.

at 10–19 (Cole, J., dissenting).

Finally, the Eighth Circuit also rejected EPA’s

Section 307(b)(1) venue arguments in cases

challenging

individual

ozone-transport

SIP

disapprovals, unlike the Tenth Circuit. The Eighth

Circuit issued multiple separate orders for each State,

without providing substantive analysis. See, e.g.,

Arkansas,

No.23-1320

(8th

Cir.

Apr.

25,

2023); Missouri, 23-1719 (8th Cir. May 26,

2023); Allete, No. 23-1776 (8th Cir. May 26, 2023)

(Minnesota); supra pp.18–19.

II. It Is Imperative That This Court Decide The

Question Presented Now, Just As It Did In

Analogous Circumstances In National

Association Of Manufacturers

The Question Presented is unquestionably of

national “importance,” as “determining the locus of

judicial review of the actions of EPA” under Section

307(b)(1), Harrison, 446 U.S. at 586, is essential to

the orderly and timely resolution of challenges to EPA

decisions on SIPs. Further, the Court should resolve

this important venue issue now, before the D.C.

Circuit adjudicates Petitioners’ challenges to the

disapprovals of Utah’s SIP and Oklahoma’s SIP, just

as this Court resolved a similar jurisdictional dispute

in a similar posture in NAM in 2018.

A. Whether EPA’s disapproval of a SIP is a locally

or regionally applicable action challengeable in the

appropriate regional circuit or may be transformed

into a nationally applicable action challengeable only

in the D.C. Circuit through EPA’s packaging the

disapproval with other SIP denials in a single Federal

methodology, is an important question that this Court

should answer. Sup. Ct. R. 10(a).

This Court has already recognized in the context

of Section 307(b)(1), the same provision at issue here,

that questions over “the locus of judicial review of the

actions of EPA” are sufficiently “important[t]” to

justify this Court’s review. Harrison, 446 U.S. at 586.

Congress has the power to decide the method for

challenging EPA action in the lower federal courts,

including by determining which circuit is the proper

venue to hear such challenges. See id. at 592–93. So,

when disputes over the proper interpretation of

statutes like Section 307(b)(1) arise, this Court “must

determine what Congress intended,” out of the

respect

owed

congressional

authority.

See id. at 593.

States and others challenging SIP disapprovals

(or approvals) need to know where they may challenge

these EPA actions. States must submit SIPs to EPA

every time EPA promulgates a new NAAQS, and EPA

must review each of its six NAAQS every five years to

determine whether a new, more-stringent standard is

necessary. See 42 U.S.C. §§ 7409, 7410(a)(1); EPA,

NAAQS Table (last updated Feb. 7, 2024).6 States

must also submit SIPs to EPA to comply with the

CAA’s “Regional Haze Program,” which has spawned

dozens of individual SIP cases across the country.

42 U.S.C. §§ 7410(a)(2)(D)(II), 7491; EPA, Regional

Haze Program (last updated Apr. 20, 2023).7 And

States must seek EPA approval for any SIP revisions

needed to implement newly adopted regulations. 42

U.S.C. § 7410(k)(5). Thus, the question of venue for

challenging SIP disapprovals or approvals is of great

practical importance for many future EPA actions.

Parties knowing at the outset in which federal

court to bring their lawsuits, including challenges to

EPA actions on SIPs, is essential to the orderly and

timely resolution of federal-court litigation. That is

why, for example, the Federal Rules of Civil

Procedure provide that a responding party must raise

objections to venue at the earliest stages of a case, or

else waive such venue challenges. See Fed. R. Civ.

P. 12(h)(1) (referencing Fed. R. Civ. P. 12(b)(3),

among other subsections). A lack of clarity over

procedural matters like “the preliminary question of

venue,” Mercantile Nat’l Bank at Dallas v. Langdeau,

Available at https://www.epa.gov/criteria-air-pollutants

/naaqs-table (all websites last visited Mar. 27, 2024).

7 Available at https://www.epa.gov/visibility/regional-haze-

program.

371 U.S. 555, 558 (1963), “eat[s] up time and money

as the parties litigate, not the merits of their claims,

but which court is the right court to decide those

claims,” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)

(citation omitted); see also Navarro Sav. Ass’n v. Lee,

446 U.S. 458, 464 n.13 (1980). Without such clarity,

courts may be overburdened with venue-transfer

motions, while also risking reversal on non-merits

grounds on appeal after the conclusion of proceedings

in the original federal court. See Hertz Corp., 559 U.S.

at 94; Mercantile Nat’l Bank, 371 U.S. at 558.

The ongoing litigation occurring in circuits across

the country over EPA’s disapprovals of twelve ozonetransport SIPs powerfully demonstrates the

importance of the Question Presented. In each of

these cases, States and/or their industries challenged

EPA’s individual SIP disapprovals in seven different

regional circuits, under Section 307(b)(1)’s second

sentence. Supra pp.16–21. Then, EPA requested that

each of these seven regional circuits transfer the

petitions

the

D.C. Circuit,

prompting

corresponding oppositions from each of the twelve

States and their industry challengers. Supra pp.16–

21. Several of these circuit courts have had to spend

considerable resources adjudicating a hotly contested

dispute over “the preliminary question of venue.”

Mercantile Nat’l Bank, 371 U.S. at 558; accord Hertz

Corp., 559 U.S. at 94; Navarro Sav. Ass’n, 446 U.S.

at 464 n.13. And if any of these regional circuits

incorrectly decide this venue question under Section

307(b)(1), the parties risk subsequent reversal on

these non-merits grounds after the conclusions of the

merits proceedings on the petitions. Mercantile Nat’l

Bank, 371 U.S. at 558.

The extensive proceedings in the present case are

particularly illustrative of the harms that parties and

courts suffer from the lack of clarity as to proper

venue. Petitioners, Utah, Oklahoma, and EPA fully

briefed the venue question during motions practice

before the Tenth Circuit, and then the Tenth Circuit

deferred ruling on that issue and issued stays without

mentioning the question of venue. Supra pp.13–16.

Meanwhile, Petitioners, Utah, and Oklahoma

litigated with EPA over their protective petitions for

review filed in the D.C. Circuit, with EPA attempting

to force litigation on the merits in the D.C. Circuit

even though these parties only filed there

protectively. Supra pp.13–16. The parties in the

Tenth Circuit then fully briefed the complex merits of

Petitioners’ challenges, as well as re-briefing the

venue question, only to have the Tenth Circuit order

transfer of venue to the D.C. Circuit one month before

the Tenth Circuit was set to hear oral argument.

Supra pp.13–16, 21–22.

Finally, this Court’s review of the Question

Presented is also important to uphold the choice of

Congress in Section 307(b)(1) to empower the States

and others to challenge EPA’s SIP denials

individually in their local, regional circuit, rather

than funneling all such challenges en masse to the

D.C. Circuit for treatment as a national issue. See 42

U.S.C. § 7607(b)(1). With Section 307(b)(1), Congress

empowered challengers of EPA’s SIP denials to bring

their challenges to the appropriate regional circuit,

not the D.C. Circuit, thus allowing fulsome circuitcourt review of individual SIPs and leveraging the

regional circuits’ comparative expertise vis-à-vis the

D.C. Circuit over the local/regional issues inherent in

such SIP denials. Accord Texas, 2023 WL 7204840,

at *4; 42 U.S.C. § 7401(a)(3) (“[A]ir pollution . . . at its

source is the primary responsibility of States and local

governments[.]”). This is an important procedural

right under the CAA, given the frequency with which

the Act requires States to submit SIPs to EPA for

approval and EPA’s obligation to approve all SIPs

that meet CAA requirements, as discussed above.

Supra pp.6–7, 28–29.

B. It is imperative that this Court resolve the

Question Presented now, rather than after a merits

ruling on Petitioners’ petitions in the D.C. Circuit,

given the delay and waste of litigation resources

caused by the circuit split here, as well as the

unfairness of forcing litigation over the disapprovals

of only Utah’s and Oklahoma’s ozone-transport SIPs

into the D.C. Circuit, while other States and their

supporting industries get to litigate in their regional

circuits, as is their statutory right. See Harrison, 446

U.S. at 586 (granting certiorari review before final

judgment to review dispute over Section 307(b)(1)).

The context of this circuit split, arising out of

ongoing litigation over EPA’s disapprovals of twelve

States’ ozone-transport SIPs, calls out for this Court’s

immediate review.

Unless this Court grants

immediate review of the Tenth Circuit’s venue

decision, only the disapprovals of Utah’s SIP and

Oklahoma’s SIP will, in all likelihood, be reviewed by

the D.C. Circuit, while the ozone-transport SIP

disapprovals for ten other States will be reviewed by

the appropriate regional circuits. See supra pp.13–22.

So, unless this Court resolves the circuit split now,

either the important CAA rights of two States or of

ten States will be adjudicated in the wrong federal

forum under Section 307(b)(1).

In this respect, the Question Presented is

analogous to the situation that this Court faced in

NAM. There, this Court resolved a dispute over

“which federal court” had jurisdiction over challenges

to an EPA rule under the Clean Water Act: the circuit

courts, or the district courts. NAM, 583 U.S. at 113–

14. As the Court explained, under the Administrative

Procedure Act, parties may generally file challenges

to final EPA actions in the federal district courts. Id.

at 114. But the Clean Water Act contains its own

judicial-review provision that “enumerates seven

categories of EPA actions for which review lies

directly and exclusively in the federal courts of

appeals.”

Id. (citation omitted). After EPA

promulgated the rule at issue, various parties

challenged it both in the federal district courts and—

due to “[u]ncertainty” over the Clean Water Act’s

judicial-review provision—in various Courts of

Appeals. Id. at 119. The Sixth Circuit (in which the

circuit-court challenges had been consolidated, 28

U.S.C. § 2112(a)(3)) held that the circuit courts had

original jurisdiction over such challenges by denying

motions to dismiss for lack of jurisdiction, while one

district court had concluded that the district courts

had original jurisdiction. Id. at 119–20 (also noting

that other district courts had taken the Sixth Circuit’s

view). This Court granted certiorari to review the

Sixth Circuit’s interlocutory order denying the

motions to dismiss for improper venue, and thereafter

settled the division between the Sixth Circuit and a

district court over the correct federal court to hear

challenges to EPA’s rule. Id. at 113–20. Further, the

Court determined to resolve this split even after EPA

proposed to rescind the rule at issue. Id. at 120 n.5.

Like in NAM, the Question Presented here asks

“which federal court” may hear challenges to certain

actions by the EPA, id. at 113–14, either the

appropriate regional circuit or the D.C. Circuit,

42 U.S.C. § 7607(b)(1). And, like in NAM, there is a

division of authority over this question—although the

division of authority in this case is even clearer than

in NAM, as here multiple circuits have divided over

the Question Presented. See Sup. Ct. R. 10(a).

III. The Tenth Circuit Wrongly Decided The

Question Presented

A. Petitioners’ challenges to EPA’s disapprovals of

Utah’s SIP and Oklahoma’s SIP belong in the Tenth

Circuit—“the appropriate circuit”—because those

EPA actions are only “locally or regionally applicable”

under Section 307(b)(1)’s second sentence, while

Section 307(b)(1)’s third sentence does not alter the

applicable-venue analysis. 42 U.S.C. § 7607(b)(1).

The “relevant actions” for purposes of Section

307(b)(1)’s venue analysis are EPA’s “various SIP

denials.” Texas, 2023 WL 7204840, at *4; see also

West Virginia, 90 F.4th at 330; Order at 3–4,

Kentucky, No.23-3216, Dkt.39-2. That is because the

CAA provides that EPA must approve or disapprove

“each State’s SIP.” Texas, 2023 WL 7204840, at *4

(citing 42 U.S.C. § 7410(k)(3)); see also West Virginia,

90 F.4th at 330 (Section 7410(k)(3)’s use of “‘plan’ in

the singular” indicates that EPA “acts on each plan”);

Order at 3–4, Kentucky, No.23-3216, Dkt.39-2. That

is what EPA did here: it “separately considered and

disapproved” each SIP. Texas, 2023 WL 7204840,

at *4 (emphasis omitted); see also West Virginia, 90

F.4th at 330.

For example, for Utah’s SIP

disapproval, EPA considered and rejected Utah’s

reliance on “contributions from other sources,

including

international

non-anthropogenic

emissions,” to Colorado, concluding that these did not

“excuse Utah from addressing its own significant

contribution to nonattainment or interference with

maintenance at downwind areas.” 87 Fed. Reg.

at 31,482; 88 Fed. Reg. at 9,359–60 (incorporating

these conclusions).

And for Oklahoma’s SIP

disapproval, EPA determined that the regional

modeling cited by Oklahoma was “technically flawed”

and rejected Oklahoma’s analysis of site-specific

factors impacting attainment at downwind receptors.

88 Fed. Reg. at 9,359–60.

EPA’s decisions on submitted SIPs—including a

disapproval of a SIP—“are the prototypical locally or

regionally applicable action that may be challenged

only in the appropriate regional court of appeals,” as

courts have long held. Texas, 2023 WL 7204840, at *4

(citations omitted); see also, e.g., Am. Rd. & Transp.

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

2013) (Kavanaugh, J.); Order at 5, Kentucky, No.233216, Dkt.39-2. Section 307(b)(1)’s second sentence

itself recognizes this, as it provides that a “petition for

review of the Administrator’s action in approving or

promulgating any implementation plan under section

7410 of this title”—the Section governing SIPs—“or

any other final action of the Administrator . . . which

is locally or regionally applicable may be filed only in

the United States Court of Appeals for the

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

added); see Am. Rd. & Transp. Builders Ass’n, 705

F.3d at 455 (Kavanaugh, J.).

EPA’s disapprovals of the States’ SIPs in the

Federal Register notice here, including Utah’s SIP

and Oklahoma’s SIP, belong to the prototypical

category of SIP denials and so are locally or regionally

applicable actions. Texas, 2023 WL 7204840, at *4;

West Virginia, 90 F.4th at 328–31; Order at 4–5,

Kentucky, No.23-3216, Dkt.39-2. EPA’s disapprovals

of Utah’s SIP and Oklahoma’s SIP involve only the

regulation of Utah and Oklahoma emissions sources.

Texas, 2023 WL 7204840, at *5; Order at 5, Kentucky,

No.23-3216, Dkt.39-2. EPA disapproved the SIPs by

assessing “the local and regional circumstances of

each of the 21 States” and based the disapprovals on

those circumstances, while “giving a unique mixture

of reasons for each rejection, even though some of the

individual reasons overlapped.” West Virginia, 90

F.4th at 330 (emphasis omitted); see also id. at 328–

29 (“[EPA] focused on the data particular to [each

State] and the analyses that [each State] conducted

with respect to those state-specific data”); 88 Fed.

Reg. at 9,340, 9,354 (“[EPA assessed each SIP] in light

of the facts and circumstances of each particular

state’s submission”; “the contents of each individual

state’s submission were evaluated on their own

merits”). That is why, in denying Utah’s SIP and

Oklahoma’s SIP, EPA directed parties to “consult”

EPA’s previous individually issued, state-specific

proposed disapprovals for the basis for each SIP

disapproval. 88 Fed. Reg. at 9,359–60.

Finally, EPA’s alternative determination under

Section 307(b)(1)’s third sentence that the

disapprovals of Utah’s SIP and Oklahoma’s SIP were

“based on a determination of nationwide scope or

effect,” 42 U.S.C. § 7607(b)(1); 88 Fed. Reg. at 9,380–

81, is invalid. Thus, Section 307(b)(1)’s third sentence

does not change the appropriate venue here. Texas,

2023 WL 7204840, at *5; West Virginia, 90 F.4th

at 328–31; Order at 5–6, Kentucky, No.23-3216,

Dkt.39-2. Again, SIP disapprovals are “usually highly

fact-bound and particular to the individual State,”

rather than based on a determination of nationwide

scope or effect, given the Clean Air Act’s requirement

that EPA separately approve or disapprove each SIP.

Texas, 2023 WL 7204840, at *5 (citations omitted); see

Order at 5–6, Kentucky, No.23-3216, Dkt.39-2; 42

U.S.C. § 7410(k)(3).

And here, EPA’s SIP

disapprovals were “based on a number of intensely

factual determinations unique to each State,” not on

a determination of nationwide scope or effect. Texas,

2023 WL 7204840, at *5 (citations omitted); see West

Virginia, 90 F.4th at 328–31; Order at 5–6, Kentucky,

No.23-3216, Dkt.39-2. EPA explained here that it

considered each SIP “in light of the facts and

circumstances of each particular state’s submission,”

Texas, 2023 WL 7204840, at *5 (emphasis omitted)

(quoting 88 Fed. Reg. at 9,340); see West Virginia, 90

F.4th at 329; Order at 6, Kentucky, No.23-3216,

Dkt.39-2. There was no new nationwide rule or

“determination” being applied in the final Federal

and state-specific proposed disapprovals into that

single publication. West Virginia, 90 F.4th at 330–31;

Order

Kentucky,

No.23-3216,

Dkt.39-2.

B. The Tenth Circuit held that EPA’s

disapprovals of Utah’s SIP and Oklahoma’s SIP were

nationally applicable under Section 307(b)(1) because

the single Federal Register notice contained two

“features”: EPA disapproved “SIPs from 21 states

across the country,” and EPA “applied a uniform

statutory interpretation and common analytical

methods.” Pet.App.11a. But neither of these features

make EPA’s disapprovals nationally applicable under

Section 307(b)(1).

EPA’s chosen method of publishing or labeling the

action—whether out of administrative convenience,

its desire to choose the litigation forum, or for some

other reason—does “not define the relevant ‘action’ for

§ 7607(b)(1)’s purposes” and “isn’t controlling” on the

question of whether EPA’s action is nationally

applicable or locally/regionally applicable. Texas,

2023 WL 7204840, at *3 n.3, *4 (citations omitted); see

Fed. R. App. 15 (a)(2)(C) (providing that parties may

challenge only “part” of an agency’s “order”). Instead,

the “relevant agency action” here for purposes of

Section 307(b)(1) is EPA’s disapproval of each SIP,

West Virginia, 90 F.4th at 330, given the source of

EPA’s authority under the CAA, Texas, 2023 WL

7204840, at *4; 42 U.S.C. § 7410(k)(3); Order at 3–4,

Kentucky, No.23-3216, Dkt.39-2. The Tenth Circuit,

with all respect, did not adequately consider the

import of EPA’s statutory source of authority here,

even as it addressed the Fourth, Fifth, and Sixth

Circuits’ decisions on different points.

See

Pet.App.11a–17a.

Second, the Section 307(b)(1) analysis does not

turn on whether EPA “applied a uniform and

nationally consistent approach to the SIPs that it

disapproved.”

West Virginia, 90 F.4th at 329

(citations omitted). EPA must generally apply a

consistent approach or methodology in acting on

SIPs—after all, an “[u]nexplained inconsistency”

would render those actions unlawfully arbitrary.

Nat’l Cable & Telecomm. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 981 (2005) (quoting Motor

Vehicle Mfrs. Assn. of United States, Inc. v. State

Farm Mut. Automobile Ins. Co., 463 U.S. 29, 46–57

(1983)). Thus, the claimed consistency of EPA’s

approach to reviewing SIPs is routine and does not

affect the appropriate venue for actions that turn on

local facts and circumstances and involve the

application of individual state discretion and

judgment. Section 307(b)(1) “does not focus on

whether national standards were applied,” but rather

on “whether the final action is nationally applicable,

as opposed to locally or regionally applicable.” West

Virginia, 90 F.4th at 329. Indeed, “if application of a

national standard to disapprove a plan were the

controlling factor, there never could be a local or

regional action . . . because every action of the EPA

purportedly applies a national standard.”

Id.

Regardless, EPA’s review of an individual SIP, in

particular, will necessarily be locally or regionally

applicable, even if EPA applies a claimed uniform

standard, given the state-specific nature both of SIPs

and of the CAA’s grant of authority to the States. See

42 U.S.C. § 7410(k)(3). EPA’s analyses of Utah’s SIP

and Oklahoma’s SIP here are cases in point, as EPA

relied upon intensely local or regional considerations

to disapprove these SIPs. Supra pp.37–38.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

MEGAN BERGE

SARAH DOUGLAS

BAKER BOTTS L.L.P.

700 K Street N.W.

Washington, D.C. 20001

(415) 291-6233

megan.berge@bakerbotts.com

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1489

Attorneys for the

Oklahoma Industry

Petitioners

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

EMILY A. O’BRIEN

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

MARIE BRADSHAW

DURRANT

Assistant General

Counsel

CHRISTIAN C. STEPHENS

Senior Attorney

PACIFICORP

1407 North Temple

Suite 320

Salt Lake City, UT 84116

Attorneys for PacifiCorp

STEVEN J. CHRISTIANSEN

DAVID C. REYMANN

PARR BROWN GEE

& LOVELESS

101 South 200 East

Suite 700

Salt Lake City, UT 84111

(801) 532-7840

schristiansen@parrbrown.com

dreymann@parrbrown.com

Attorneys for Deseret

Generation &

Transmission CoOperative

CARROLL WADE

MCGUFFEY III

MELISSA HORNE

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

Attorneys for PacifiCorp

H. MICHAEL KELLER

ARTEMIS D. VAMIANAKIS

FABIAN VANCOTT

95 South State Street

Suite 2300

Salt Lake City, UT 84111

(801) 531-8900

mkeller@fabianvancott.com

avamianakis@fabian

vancott.com

Attorneys for Utah

Associated Municipal

Power Systems

ALAN I. ROBBINS

DEBRA D. ROBY

THOMAS B. STEIGER III

WASHINGTON ENERGY

LAW LLP

900 17th St. NW

Suite 500-A

Washington, D.C. 20006

(703) 785-9270

arobbins@washington

energylaw.com

droby@washington

energylaw.com

tsteiger@washington

energylaw.com

Attorneys for Utah

Municipal Power Agency

EMILY L. WEGENER

General Counsel

UTAH ASSOCIATED

MUNICIPAL POWER

SYSTEMS

155 North 400 West

Suite 480

Salt Lake City, UT 84103

(801) 566-3938

emily@uamps.com

Attorneys for Utah

Associated Municipal

Power Systems

March 2024

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED FEBRUARY 27,

2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED FEBRUARY 16,

2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a

APPENDIX C — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

APPENDIX Appendix

A — OPINION

OF THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED FEBRUARY 27, 2024

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 23-9514

STATE OF OKLAHOMA, BY AND THROUGH

ITS ATTORNEY GENERAL; GENTNER F

DRUMMOND; OKLAHOMA DEPARTMENT OF

ENVIRONMENTAL QUALITY,

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

Appendix A

No. 23-9521

OKLAHOMA GAS & ELECTRIC COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

No. 23-9533

TULSA CEMENT LLC, D/B/A CENTRAL

PLAINS CEMENT COMPANY LLC; REPUBLIC

PAPERBOARD COMPANY LLC,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Appendix A

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

No. 23-9534

WESTERN FARMERS ELECTRIC COOPERATIVE,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

No. 23-9509

STATE OF UTAH, BY AND THROUGH ITS

GOVERNOR, SPENCER J. COX, AND ITS

ATTORNEY GENERAL, SEAN D. REYES,

Petitioner,

Appendix A

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

No. 23-9512

PACIFICORP; DESERET GENERATION &

TRANSMISSION CO-OPERATIVE; UTAH

MUNICIPAL POWER AGENCY,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

Appendix A

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

No. 23-9520

UTAH ASSOCIATED MUNICIPAL

POWER SYSTEMS,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

Appendix A

Petitions for Review of Orders From the

Environmental Protection Agency

(EPA Nos. EPA-R08-OAR-2022-315 &

EPA-R06-OAR-2021-0801 &

EPA-HQ-OAR-2021-0663)

Submitted without oral argument:*

Before MORITZ, EBEL, and ROSSMAN, Circuit Judges.

MORITZ, Circuit Judge.

In a February 2023 final rule, the U.S. Environmental

Protection Agency (EPA) disapproved state implementation

plans (SIPs) from 21 states across the country because

those states all failed to adequately address their

contributions to air-quality problems in downwind states.

These seven petitions seek review of that final rule:

Oklahoma and various industry groups challenge the

EPA’s decision to disapprove Oklahoma’s SIP; Utah and

other industry groups challenge the disapproval of Utah’s

SIP. But the EPA has moved to dismiss or transfer the

petitions to the D.C. Circuit under the Clean Air Act’s

judicial-review provision, 42 U.S.C. § 7607(b)(1), which

assigns to the D.C. Circuit any petition seeking review of

a “nationally applicable” agency action. And because we

agree with the EPA that the challenged rule is nationally

applicable, we grant the EPA’s motions in part, to transfer

* After examining the motions, responses, replies, and

supplemental authority, this panel has determined unani-mously

that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Appendix A

the petitions to the D.C. Circuit, and thus do not reach

the merits.

BACKGROUND

The Clean Air Act establishes “a cooperativefederalism approach to regulate air quality.” U.S.

Magnesium, LLC v. EPA, 690 F.3d 1157, 1159 (10th Cir.

2012). The Act directs the EPA to establish and periodically

revise National Ambient Air Quality Standards (NAAQS),

which represent “the maximum airborne concentration[s]

of [certain air] pollutant[s] that the public health can

tolerate.” West Virginia v. EPA, 597 U.S. 697, 707, 142 S.

Ct. 2587, 213 L. Ed. 2d 896 (2022) (quoting Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 465, 121 S. Ct. 903, 149

L. Ed. 2d 1 (2001)). After the EPA revises or sets a new airquality standard, the agency must designate geographic

regions around the country as areas of “attainment” or

“nonattainment” (or label them “unclassifiable”). 42 U.S.C.

§ 7407(d)(1); see also EPA v. EME Homer City Generation,

L.P., 572 U.S. 489, 498, 134 S. Ct. 1584, 188 L. Ed. 2d

775 (2014). The burden then shifts to the states to each

adopt and submit for the EPA’s approval a SIP that will

implement, maintain, and enforce the NAAQS within its

boundaries. See 42 U.S.C. § 7410(a)(1); EME Homer City,

572 U.S. at 498. But because air pollutants travel with the

wind, “heedless of state boundaries,” emissions in upwind

states can threaten a downwind state’s ability to attain and

maintain the NAAQS. EME Homer City, 572 U.S. at 496.

To tackle this complex interstate pollution problem, the

Act includes a good-neighbor provision requiring each SIP

to prohibit emissions that will “contribute significantly to

Appendix A

nonattainment” or “interfere with maintenance” in any

other state. § 7410(a)(2)(D)(i).

In 2015, the EPA tightened the NAAQS for ozone. See

National Ambient Air Quality Standards for Ozone, 80

Fed. Reg. 65292 (Oct. 26, 2015). This revision triggered

each state’s duty to submit a SIP to implement the 2015

ozone NAAQS. See § 7410(a)(1). In February 2023, the

EPA issued a final rule disapproving SIPs submitted

by 21 states because those states all failed to meet their

good-neighbor obligations. See 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) [hereinafter Air Plan

Disapprovals]. 2 In evaluating these SIPs, the EPA applied

a four-step framework it developed to implement the goodneighbor provision. See id. at 9338. Under this framework,

the EPA (1) identifies downwind areas expected to have

problems attaining or maintaining the relevant NAAQS;

(2) determines which upwind states contribute to these

identified problems in amounts sufficient to link them

to the downwind air-quality problems; (3) identifies the

emissions reductions necessary to eliminate each linked

upwind state’s significant contribution to downwind

nonattainment through a multifactor analysis; and (4)

adopts enforceable control measures to achieve those

reductions. Id. In applying the framework, the EPA also

considered any alternative approach states proposed in

their SIPs “with an eye to ensuring national consistency.”

Id. at 9338, 9381.

2. We note that as to two of these 21 states, Minnesota and

Wisconsin, the EPA partially approved and partially disapproved the

proposed SIPs. See Air Plan Disapprovals, 88 Fed. Reg. at 9336, 9354.

Appendix A

Here, two such states—Oklahoma and Utah, joined by

various industry groups—have petitioned for review of the

final rule, challenging the EPA’s decision to disapprove their

SIPs. The EPA responded by moving to dismiss or transfer

the petitions to the D.C. Circuit under § 7607(b)(1). 3 We

stayed the Oklahoma and Utah SIP disapprovals pending

our review and referred the EPA’s motions to the panel

assigned to hear these cases on their merits.

ANALYSIS

The EPA argues that we must dismiss or transfer the

petitions to the D.C. Circuit under the Clean Air Act’s

judicial-review provision, which divides reviewable EPA

actions into three categories and designates the proper

forum for each.4 See § 7607(b)(1). It provides that a petition

3. Utah and its industry groups suggest in a footnote that the

EPA’s motion to dismiss their petitions is untimely. In support,

they note that under Tenth Circuit Rule 27.3(A)(3)(a), a motion to

dismiss “should be filed within 14 days after the notice of appeal is

filed, unless good cause is shown.” But we agree with the EPA that

it has shown good cause for filing its March 16, 2023 motion slightly

more than 14 days after Utah and its industry groups petitioned for

review on February 13 and 23, 2023: various petitioners have sought

review of the same final rule in regional circuit courts across the

country, and the “EPA has acted as expeditiously as practicable in

moving to [dismiss or] transfer these cases [to the D.C. Circuit] in a

coordinated fashion.” EPA Utah Mot. 2 n.1.

4. We need not decide whether § 7607(b)(1) is a jurisdictional

or venue provision. See ATK Launch Sys., Inc. v. EPA, 651 F.3d

1194, 1196 n.1 (10th Cir. 2011). For our purposes, it is enough that

the provision is mandatory and that the EPA invokes it here. See

Eberhart v. United States, 546 U.S. 12, 19, 126 S. Ct. 403, 163 L.

10a

Appendix A

for review of a “nationally applicable” final action “may be

filed only in [the D.C. Circuit].” Id. By contrast, a petition

for review of a “locally or regionally applicable” final action

“may be filed only in the . . . appropriate [regional] circuit.”5

Id. But if that “locally or regionally applicable” action “is

based on a determination of nationwide scope or effect”

and if the EPA, in taking that action, “finds and publishes

that such action is based on such a determination,” then

the petition “may be filed only in the [D.C. Circuit].” Id.

Under the statute’s plain text, then, whether a petition

for review belongs in the D.C. Circuit turns exclusively

on the nature of the challenged agency action. See ATK

Launch Sys., 651 F.3d at 1197. We must therefore ask

whether the action itself is “nationally applicable” or

“locally or regionally applicable.” Id. (quoting § 7607(b)(1)).

And in answering that question, we look only to the face

of the action, not its practical effects or the scope of the

petitioner’s challenge. Id.

Ed. 2d 14 (2005) (explaining that nonjurisdictional claim-processing

rules “assure relief to a party properly raising them”).

5. We reject petitioners’ cursory suggestion that § 7607(b)(1),

by its text, assigns all petitions challenging a SIP disapproval to

the regional circuits. The statute merely provides that “[a] petition

for review of the [EPA]’s action in approving or promulgating any

implementation plan . . . or any other final action . . . (including any

denial or disapproval . . .) which is locally or regionally applicable

may be filed only in the . . . appropriate [regional] circuit.” § 7607(b)(1)

(emphasis added). It does not, as petitioners assert, say that any

such approval, promulgation, denial, or disapproval is locally or

regionally applicable.

11a

Appendix A

On its face, the final EPA action being challenged here

is nationally applicable. Petitioners seek review of a final

rule disapproving SIPs from 21 states across the country—

spanning eight EPA regions and ten federal judicial

circuits—because those states all failed to comply with

the good-neighbor provision. See Air Plan Disapprovals, 88

Fed. Reg. at 9380. And in promulgating that rule, the EPA

applied a uniform statutory interpretation and common

analytical methods, which required the agency to examine

the overlapping and interwoven linkages between upwind

and downwind states in a consistent manner. Id. Because

a final action with these features is “nationally applicable”

under § 7607(b)(1), judicial review is proper only in the

D.C. Circuit. See ATK Launch Sys., 651 F.3d at 1197.

Seeking to avoid this conclusion, petitioners urge

us to view the 21 SIP disapprovals in the final rule

as separate, locally or regionally applicable agency

actions. They maintain that each of their seven petitions

challenges just one such action: either the Oklahoma SIP

disapproval or Utah SIP disapproval. Those final SIP

disapprovals, petitioners say, turned on state-specific

facts and grew out of several proposed rules signed by

regional administrators. And in petitioners’ view, the EPA

cannot transform a locally or regionally applicable SIP

disapproval into a nationally applicable action by deciding

to “packag[e] it together with 20 other SIP disapprovals”

in a single final rule. Utah Resp. 13.

But petitioners’ arguments collide with § 7607(b)(1)’s

plain text, which directs courts to consider only the face

of the “final action,” establishing an action-focused method

12a

Appendix A

for determining the proper forum for judicial review. It is

simply not material to the analysis that the EPA issued

several proposed rules or that it could have chosen to

issue standalone final SIP disapprovals. What matters is

the nature of the agency’s final action. See ATK Launch

Sys., 651 F.3d at 1197. And here, that action is a nationally

applicable final rule, signed by the EPA administrator,

disapproving SIPs from 21 states across the country—not

just one—because those states failed to meet their goodneighbor obligations.

Nor is it material that petitioners each purport to

challenge only one such SIP disapproval. By its terms,

§ 7607(b)(1) “assigns to the D.C. Circuit all challenges

to ‘nationally applicable [final actions],’ not, for instance,

all national challenges or all challenges that will have a

national effect.” Id. (quoting § 7607(b)(1)). Thus, we have

made clear that “the manner in which a petitioner frames

[their] challenge” does not “alter the court in which the

[petition] belongs”; “[t]he nature of the [agency action],

not the challenge, controls.” Id. And we are not alone in

making this unremarkable observation. See, e.g., Hunt

Refin. Co. v. EPA, 90 F.4th 1107, 1110 (11th Cir. 2024)

(“When deciding whether a final action is ‘nationally

applicable,’ we begin by ‘analyzing the nature of the EPA’s

action, not the specifics of the petitioner’s grievance.”

(quoting RMS of Ga., LLC v. EPA, 64 F.4th 1368, 1372

(11th Cir. 2023))); S. Ill. Power Coop. v. EPA, 863 F.3d 666,

670 (7th Cir. 2017) (“Under the straightforward (if wordy)

statutory text [of § 7607(b)(1)], venue depends entirely

on—and is fixed by—the nature of the agency’s action;

the scope of the petitioner’s challenge has no role to play

13a

Appendix A

in determining venue.”); Sierra Club v. EPA, 926 F.3d

844, 849, 441 U.S. App. D.C. 376 (D.C. Cir. 2019) (“The

court need look only to the face of the agency action, not

its practical effects, to determine whether an action is

nationally applicable.”).

We applied this action-focused approach in ATK

Launch Systems. There, the petitioners sought review

of a final EPA rule listing attainment and nonattainment

designations for the NAAQS for fine particulate matter.

651 F.3d at 1195. Although the petitions challenged the

nonattainment designations of only two counties in Utah,

the rule “enumerate[d] designations for areas across

the country.” Id. at 1195-96. The EPA moved to dismiss

or transfer the petitions under § 7607(b)(1), arguing

that they belonged in the D.C. Circuit because the rule

was nationally applicable. Id. at 1196-97. We agreed,

explaining the statute “makes clear that this court must

analyze whether the [final action] itself is nationally

applicable, not whether the effects complained of or

the petitioner’s challenge to that [action] is nationally

applicable.” Id. at 1197. Because the rule there applied

“a uniform process and standard across the country”

and “reache[d] geographic areas from coast to coast,”

we held that it was nationally applicable and therefore

transferred the petitions to the D.C. Circuit. Id. at 119798, 1200; see also Hunt, 90 F.4th at 1110-11 (holding

that two EPA final actions were “nationally applicable”

because they denied 105 small-refinery exemptions to

refineries across the nation and because EPA applied

“new statutory interpretation and analytical framework

that is applicable to all small refineries no matter their

14a

Appendix A

location or market”); S. Ill. Power Coop., 863 F.3d at 671

(holding that similar air-quality designation rule was

“nationally applicable” because it was “a final rule of

broad geographic scope” and “promulgated pursuant to

a common, nationwide analytical method,” even though

petitioners challenged only EPA’s designation of one

Illinois county as nonattainment area). Here, too, the

final rule is nationally applicable: it applies a consistent

statutory interpretation and uniform analytical methods

to disapprove SIPs from 21 states around the country.6

6. Petitioners attempt to distinguish ATK Launch Systems and

Southern Illinois Power Cooperative by focusing on the nature of

the statutory authority under which the EPA took the challenged

actions. They highlight that the Clean Air Act assigns to the EPA

the responsibility to make air-quality designations, and the states

merely offer recommendations on how to designate areas within their

boundaries. See § 7407(d)(1)(A)-(B). By contrast, petitioners note, the

statute delegates to the states the responsibility to craft SIPs, and

the EPA must approve such a plan if the agency determines that it is

complete and meets all applicable requirements. See § 7410(a), (k). So

according to petitioners, the EPA’s authority “differ[s] significantly”

when the agency makes air-quality designations than when it

approves or disapproves SIPs, with the EPA taking a more back-seat

role when reviewing SIPs. Utah Resp. 19. But we discern no material

distinction here. Whether an EPA action is nationally applicable does

not turn on the “type” of statutory authority delegated to the agency,

id. at 22; again, it depends entirely on the nature of the agency’s

action, ATK Launch Sys., 651 F.3d at 1197. Thus, as the EPA points

out, it is appropriate to challenge in a regional circuit court even a

final action that sets air-quality designations if that action applies

only locally or regionally. See, e.g., Texas v. EPA, 983 F.3d 826, 832

(5th Cir. 2020) (holding that final rule establishing attainment and

nonattainment designations for counties in Texas was “‘locally or

regionally applicable’ because it [wa]s directed only at . . . contiguous

Texas counties” (quoting § 7607(b)(1))). But when a final action

15a

Appendix A

See Air Plan Disapprovals, 88 Fed. Reg. at 9380. So any

challenge to that rule belongs in the D.C. Circuit. See

§ 7607(b)(1).

We recognize that the Fourth, Fifth, and Sixth

Circuits recently reached the contrary conclusion: each

denied the EPA’s motions to transfer petitions challenging

the same final rule at issue here.7 See Texas v. United

States EPA, No. 23-60069, 2023 U.S. App. LEXIS

13898, 2023 WL 7204840, at *1 (5th Cir. May 1, 2023)

(unpublished); Kentucky v. United States EPA, No. 233216, 2023 U.S. App. LEXIS 18981 (6th Cir. July 25, 2023);

West Virginia v. EPA, 90 F.4th 323, 331 (4th Cir. 2024). But

in our view, all three courts strayed from § 7607(b)(1)’s text

and instead applied a petition-focused approach that we

and other circuits have rejected. Indeed, the Fifth Circuit

conceded that its own precedent recognizes “§ 7607(b)

(1)’s use of ‘action’ means ‘the rule or other final action

taken by the agency that the petitioner seeks to prevent

or overturn.’” Texas, 2023 U.S. App. LEXIS 13898,

2023 WL 7204840, at *3-4 (quoting Texas v. EPA, 829

F.3d 405, 419 (5th Cir. 2016)). Nevertheless, rather than

focusing its analysis on the face of the rule as is required,

the Fifth Circuit focused on the nature of the petitions

before it—which each challenged a single SIP disapproval

concerns states around the country and applies a common analytical

method—as in ATK Launch Systems, Southern Illinois Power

Cooperative, and this case—then the action is nationally applicable.

7. The Eighth Circuit also denied the EPA’s transfer motions,

but it simply issued summary orders containing no analysis. See, e.g.,

Arkansas v. EPA, No. 23-1320 (8th Cir. Apr. 25, 2023).

16a

Appendix A

contained in the final rule—to conclude that “the relevant

unit of administrative action” was each individual SIP

disapproval and that such disapprovals were “locally or

regionally applicable.” 2023 U.S. App. LEXIS 13898,

[WL] at *4. The Fourth and Sixth Circuits followed suit.

See Kentucky, 2023 U.S. App. LEXIS 18981 (following

Texas and wrongly characterizing “EPA’s [disapproval] of

Kentucky’s SIP,” not the final rule itself, as the relevant

“final action”); West Virginia, 90 F.4th at 330-31 (joining

Texas and West Virginia and improperly framing “the

relevant agency action” as “EPA’s disapproval of West

Virginia’s SIP”).

A ll three decisions generated strong dissents

highlighting critical flaws in the majority opinions. In West

Virginia, for example, the dissent sharply criticized the

majority opinion for “jettison[ing the well-established]

analysis altogether and instead look[ing] to the nature of

West Virginia’s challenge to hold that the [f]inal [r]ule is

locally applicable.” 90 F.4th at 334 (Thacker, J., dissenting).

The dissent further pointed out that the decisions from

the Fifth and Sixth Circuits likewise “depart[ed] from

all relevant precedent,” including our decision in ATK

Launch Systems, “without adequate justification or

explanation.” Id. at 333-35 ; see also Kentucky, 2023 U.S.

App. LEXIS 18981 (Cole, J., dissenting) (relying on ATK

Launch Systems and other cases to explain that majority’s

“limiting [of] the ‘action’ to Kentucky’s state-specific

challenge is inappropriate” when “the ‘scope of the [final

rule]’ is much broader” (quoting Nat. Res. Def. Council v.

Thomas, 838 F.2d 1224, 1249, 267 U.S. App. D.C. 274 (D.C.

Cir. 1988))); Texas, 2023 U.S. App. LEXIS 13898, 2023

17a

Appendix A

WL 7204840, at *11-12 (Douglas, J., dissenting) (same).

Moreover, this misdirected approach may well result in

ten regional 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. See Texas, 2023 U.S.

App. LEXIS 13898, 2023 WL 7204840, at *13 (Douglas,

J., dissenting); Kentucky, 2023 U.S. App. LEXIS 18981

(Cole, J., dissenting).

In short, because the Fourth, Fifth, and Sixth Circuit

decisions denying the EPA’s transfer motions all depart

from § 7607(b)(1)’s plain text and our binding precedent,

we decline to follow them. See Hunt, 90 F.4th at 111113 (distinguishing Texas and Kentucky and further

disagreeing with Calumet Shreveport Refining, LLC

v. EPA, 86 F.4th 1121 (5th Cir. 2023), in which the Fifth

Circuit held that two EPA final actions denying 105 smallrefinery exemptions were locally or regionally applicable).

And applying § 7607(b)(1) as written, we readily conclude

that these petitions belong in the D.C. Circuit because they

seek review of a nationally applicable final rule. 8

CONCLUSION

Because petitioners seek review of a nationally

applicable final rule, we grant the EPA’s motions to dismiss

or transfer in part and transfer the petitions to the D.C.

8. Given this conclusion, we need not address the EPA’s

alternative argument that the petitions belong in the D.C. Circuit

even if the final action is “locally or regionally applicable” because

it “is based on a determination of nationwide scope or effect” made

and published by the EPA. § 7607(b)(1).

18a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT, FILED FEBRUARY 16, 2024

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 23-9514

(EPA No. EPA-RO6-OAR-2021-0801)

(Environmental Protection Agency)

STATE OF OKLAHOMA, BY AND THROUGH

ITS ATTORNEY GENERAL; GENTNER F

DRUMMOND; OKLAHOMA DEPARTMENT OF

ENVIRONMENTAL QUALITY,

Petitioners,

U.S. ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN,

ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

19a

Appendix B

No. 23-9521

(EPA No. EPA-HQ-OAR-2021-0663)

(Environmental Protection Agency)

OKLAHOMA GAS & ELECTRIC COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

20a

Appendix B

No. 23-9533

(EPA No. EPA-HQ-OAR-2021-0663)

(Environmental Protection Agency)

TULSA CEMENT LLC, D/B/A CENTRAL

PLAINS CEMENT COMPANY LLC; REPUBLIC

PAPERBOARD COMPANY LLC,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

21a

Appendix B

No. 23-9534

(EPA No. EPA-HQ-OAR-2021-0663)

(Environmental Protection Agency)

WESTERN FARMERS ELECTRIC COOPERATIVE,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

22a

Appendix B

No. 23-9509

(EPA No. EPA-R08-OAR-2022-315)

(Environmental Protection Agency)

STATE OF UTAH, BY AND THROUGH ITS

GOVERNOR, SPENCER J. COX, AND ITS

ATTORNEY GENERAL, SEAN D. REYES,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

23a

Appendix B

No. 23-9512

(EPA No. EPA-R08-OAR-2022-315)

(Environmental Protection Agency)

PACIFICORP; DESERET GENERATION &

TRANSMISSION CO-OPERATIVE; UTAH

MUNICIPAL POWER AGENCY,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

24a

Appendix B

No. 23-9520

(EPA No. EPA-R08-OAR-2022-315)

(Environmental Protection Agency)

UTAH ASSOCIATED

MUNICIPAL POWER SYSTEMS,

Petitioner,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL S.

REGAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS.

SIERRA CLUB; HEALTHY ENVIRONMENT

ALLIANCE OF UTAH; CENTER FOR BIOLOGICAL

DIVERSITY; DOWNWINDERS AT RISK; UTAH

PHYSICIANS FOR A HEALTHY ENVIRONMENT;

SOUTHERN UTAH WILDERNESS ALLIANCE;

CLEAN AIR TASK FORCE,

Amici Curiae.

ORDER

These matters are before the court on Respondents’

Opposed Motion to Transfer the Petition for Review to

25a

Appendix B

the D.C. Circuit or Dismiss Based on Improper Venue.1

We also have responses from Petitioners, replies from

Respondents, and supplemental authority from the

parties. On April 27, 2023, the motions, responses, replies,

and supplemental authority were referred to the panel of

judges who would later be assigned to decide the merits

of these petitions for review. As a result, merits briefing

proceeded and these matters are set for oral argument

on March 21, 2024.

Upon careful consideration of the aforementioned

filings, and at the specific direction of the merits panel,

the Transfer Motions are GRANTED IN PART and these

matters will be transferred to the United States Court of

Appeals for the District of Columbia. A decision directing

the transfer of these matters will issue in due course, and

the transfers will be effectuated at that time.

In light of the foregoing, the March 21, 2024 oral

arguments in these matters are VACATED, and all

counsel are excused from attendance. The pending

motions to enlarge time for oral argument and for amici

to participate in oral argument are DENIED AS MOOT.

Entered for the Court,

/s/ Christopher M. Wolpert, Clerk

CHRISTOPHER M. WOLPERT, Clerk

1. Respondents filed substantially similar motions to transfer or

dismiss each of the above-captioned petitions for review. Collectively,

those motions are referred to herein as the “Transfer Motions.”

26a

Appendix

APPENDIX

C — RELEVANT

STATUTORY PROVISIONS

42 U.S. Code § 7607 Administrative proceedings and

judicial review

(b) Judicial review.

(1) A petition for review of action of the Administrator

in promulgating any national primary or secondary

ambient air quality standard, any emission standard

or requirement under section 112 [42 USCS § 7412],

any standard of performance or requirement under

section 111 [42 USCS § 7411][,], any standard under

section 202 [42 USCS § 7521] (other than a standard

required to be prescribed under section 202(b)(1)

[42 USCS § 7521(b)(1)]), any determination under

section 202(b)(5) [42 USCS § 7521(b)(5)], any control

or prohibition under section 211 [42 USCS § 7545], any

standard under section 231 [42 USCS § 7571] any rule

issued under section 113, 119, or under section 120 [42

USCS § 7413, 7419, or 7420], or any other nationally

applicable regulations promulgated, or final action

taken, by the Administrator under this Act may be

filed only in the United States Court of Appeals for

the District of Columbia. A petition for review of the

Administrator’s action in approving or promulgating

any implementation plan under section 110 or section

111(d) [42 USCS § 7410 or 7411(d)], any order under

section 111(j) [42 USCS § 7411(j)], under section 112 [42

USCS § 7412],[,] under section 119 [42 USCS § 7419], or

under section 120 [42 USCS § 7420], or his action under

section 119(c)(2)(A), (B), or (C) (as in effect before the

date of enactment of the Clean Air Act Amendments

of 1977) or under regulations thereunder, or revising

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regulations for enhanced monitoring and compliance

certification programs under section 114(a)(3) of this

Act, or any other final action of the Administrator

under this Act (including any denial or disapproval

by the Administrator under title I [42 USCS §§ 7401

et seq.]) which is locally or regionally applicable may

be filed only in the United States Court of Appeals

for the appropriate circuit. Notwithstanding the

preceding sentence a petition for review of any action

referred to in such sentence may be filed only in the

United States Court of Appeals for the District of

Columbia 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. Any petition

for review under this subsection shall be filed within

sixty days from the date notice of such promulgation,

approval, or action appears in the Federal Register,

except that if such petition is based solely on grounds

arising after such sixtieth day, then any petition for

review under this subsection shall be filed within

sixty days after such grounds arise. The filing of a

petition for reconsideration by the Administrator of

any otherwise final rule or action shall not affect the

finality of such rule or action for purposes of judicial

review nor extend the time within which a petition for

judicial review of such rule or action under this section

may be filed, and shall not postpone the effectiveness

of such rule or action.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph

(1) shall not be subject to judicial review in civil or

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Appendix C

criminal proceedings for enforcement. Where a final

decision by the Administrator defers performance of

any nondiscretionary statutory action to a later time,

any person may challenge the deferral pursuant to

paragraph (1).

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Appendix C

42 U.S. Code § 7410 State implementation plans for

national primary and secondary ambient air

quality standards

(a) Adoption of plan by State; submission to

Administrator; content of plan; revision; new sources;

indirect source review program; supplemental or

intermittent control systems.

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator,

w ithin 3 years (or such shorter period as the

Administrator may prescribe) after the promulgation

of a national primary ambient air quality standard

(or any revision thereof) under section 109 [42 USCS

§ 7409] for any air pollutant, a plan which provides

for implementation, maintenance, and enforcement

of such primary standard in each air quality control

region (or portion thereof) within such State. In

addition, such State shall adopt and submit to the

Administrator (either as a part of a plan submitted

under the preceding sentence or separately) within

3 years (or such shorter period as the Administrator

may prescribe) after the promulgation of a national

ambient air quality secondary standard (or revision

thereof), a plan which provides for implementation,

maintenance, and enforcement of such secondary

standard in each air quality control region (or portion

thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan

implementing such secondary standard at the hearing

required by the first sentence of this paragraph.

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Appendix C

(2) Each implementation plan submitted by a State

under this Act shall be adopted by the State after

reasonable notice and public hearing. Each such plan

shall—

(A) include enforceable emission limitations and

other control measures, means, or techniques

(including economic incentives such as fees,

marketable permits, and auctions of emissions

rights), as well as schedules and timetables for

compliance, as may be necessary or appropriate

to meet the applicable requirements of this Act;

(B) provide for establishment and operation

of appropriate devices, methods, systems, and

procedures necessary to—

(i) monitor, compile, and analyze data on

ambient air quality, and

(ii) upon request, make such data available to

the Administrator;

of the measures described in subparagraph (A), and

regulation of the modification and construction of

any stationary source within the areas covered

by the plan as necessary to assure that national

ambient air quality standards are achieved,

including a permit program as required in parts

C and D [42 USCS §§ 7470 et seq., 7501 et seq.];

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Appendix C

(D) contain adequate provisions—

(i) prohibiting, consistent with the provisions of

this title, any source or other type of emissions

activity within the State from emitting any air

pollutant in amounts which will—

(I) contribute significantly to nonattainment

in, or interfere with maintenance by, any

other State with respect to any such national

primary or secondary ambient air quality

standard, or

(II) interfere with measures required to be

included in the applicable implementation

plan for any other State under part C [42

USCS §§ 7470 et seq.] to prevent significant

deterioration of air quality or to protect

visibility,

(ii) insuring compliance with the applicable

requirements of sections 126 and 115 [42

USCS §§ 7426, 7415] (relating to interstate and

international pollution abatement);

***

(k) Environmental Protection Agency action on plan

submissions.

(1) Completeness of plan submissions.

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Appendix C

(A) Completeness criteria. Within 9 months after

the date of the enactment of the Clean Air Act

Amendments of 1990 [enacted Nov. 15, 1990],

the Administrator shall promulgate minimum

criteria that any plan submission must meet

before the Administrator is required to act on such

submission under this subsection. The criteria shall

be limited to the information necessary to enable

the Administrator to determine whether the plan

submission complies with the provisions of this Act.

(B) Completeness finding. Within 60 days of the

Administrator’s receipt of a plan or plan revision,

but no later than 6 months after the date, if any,

by which a State is required to submit the plan

or revision, the Administrator shall determine

whether the minimum cr iter ia established

pursuant to subparagraph (A) have been met. Any

plan or plan revision that a State submits to the

Administrator, and that has not been determined

by the Administrator (by the date 6 months after

receipt of the submission) to have failed to meet

the minimum criteria established pursuant to

subparagraph (A), shall on that date be deemed by

operation of law to meet such minimum criteria.

Administrator determines that a plan submission

(or part thereof) does not meet the minimum

criteria established pursuant to subparagraph (A),

the State shall be treated as not having made the

submission (or, in the Administrator’s discretion,

part thereof).

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Appendix C

(2) Deadline for action. Within 12 months of a

determination by the Administrator (or a determination

deemed by operation of law) under paragraph (1) that

a State has submitted a plan or plan revision (or, in

the Administrator’s discretion, part thereof) that

meets the minimum criteria established pursuant to

paragraph (1), if applicable (or, if those criteria are

not applicable, within 12 months of submission of the

plan or revision), the Administrator shall act on the

submission in accordance with paragraph (3).

(3) Full and partial approval and disapproval. In the

case of any submittal on which the Administrator is

required to act under paragraph (2), the Administrator

shall approve such submittal as a whole if it meets all of

the applicable requirements of this Act. If a portion of

the plan revision meets all the applicable requirements

of this Act, the Administrator may approve the plan

revision in part and disapprove the plan revision in

part. The plan revision shall not be treated as meeting

the requirements of this Act until the Administrator

approves the entire plan revision as complying with

the applicable requirements of this Act.

(4) Conditional approval. The Administrator may

approve a plan revision based on a commitment of

the State to adopt specific enforceable measures by a

date certain, but not later than 1 year after the date

of approval of the plan revision. Any such conditional

approval shall be treated as a disapproval if the State

fails to comply with such commitment.

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Appendix C

(5) Calls for plan revisions. Whenever the Administrator

finds that the applicable implementation plan for any

area is substantially inadequate to attain or maintain

the relevant national ambient air quality standard, to

mitigate adequately the interstate pollutant transport

described in section 176A or section 184 [42 USCS §

7506a or § 7511c], or to otherwise comply with any

requirement of this Act, the Administrator shall

require the State to revise the plan as necessary to

correct such inadequacies. The Administrator shall

notify the State of the inadequacies, and may establish

reasonable deadlines (not to exceed 18 months after

the date of such notice) for the submission of such plan

revisions. Such findings and notice shall be public.

Any finding under this paragraph shall, to the extent

the Administrator deems appropriate, subject the

State to the requirements of this Act to which the

State was subject when it developed and submitted

the plan for which such finding was made, except that

the Administrator may adjust any dates applicable

under such requirements as appropriate (except that

the Administrator may not adjust any attainment date

prescribed under part D [42 USCS §§ 7501 et seq.],

unless such date has elapsed).

(6) Cor rections. W henever the Administrator

determines that the Administrator’s action approving,

disapproving, or promulgating any plan or plan revision

(or part thereof), area designation, redesignation,

classification, or reclassification was in error, the

Administrator may in the same manner as the

approval, disapproval, or promulgation revise such

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Appendix C

action as appropriate without requiring any further

submission from the State. Such determination and the

basis thereof shall be provided to the State and public.

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.