Reply Brief — PacifiCorp, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefFeb 18, 2025
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No. 23-1068
In the Supreme Court of the United States
PACIFICORP, et al.,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
REPLY BRIEF FOR PETITIONERS
AARON M. STREETT
J. MARK LITTLE
BAKER BOTTS L.L.P.
910 Louisiana Street
Houston, TX 77002
SARAH DOUGLAS
BAKER BOTTS L.L.P.
700 K Street N.W.
Washington, D.C. 20001
Attorneys for the
Oklahoma Industry
Petitioners
MISHA TSEYTLIN
Counsel of Record
JEFF P. JOHNSON
KEVIN M. LEROY
KAITLIN L. O’DONNELL
TROUTMAN PEPPER
LOCKE LLP
111 South Wacker Drive
Suite 4100
Chicago, IL 60606
(608) 999-1240
misha.tseytlin@troutman.com
Attorneys for PacifiCorp
(Additional counsel listed on inside cover.)
STEVEN J. CHRISTIANSEN
DAVID C. REYMANN
PARR BROWN GEE
& LOVELESS
101 South 200 East
Suite 700
Salt Lake City, UT 84111
Attorneys for Deseret
Generation &
Transmission CoOperative
MARIE BRADSHAW DURRANT
Vice President and
General Counsel
CHRISTIAN C. STEPHENS
Senior Attorney
PACIFICORP
1407 West North Temple
Suite 320
Salt Lake City, UT 84116
CARROLL WADE MCGUFFEY III
MELISSA HORNE
TROUTMAN PEPPER
LOCKE LLP
600 Peachtree St. N.E.
Suite 3000
Atlanta, GA 30308
Attorneys for PacifiCorp
(Additional counsel listed at end of brief.)
TABLE OF CONTENTS
INTRODUCTION .......................................................1
ARGUMENT ...............................................................4
I. EPA Cannot Transform Its Action
Disapproving Utah’s SIP And Its Action
Disapproving Oklahoma’s SIP Into A
Combined “Nationally Applicable” Action
By Packaging Those Actions With Its
Disapprovals Of 19 Other States’ SIPs ...........4
II. Section 307(b)(1)’s Narrow Exception Does
Not Apply Because EPA Made No Valid
“Determination Of Nationwide Scope Or
Effect” As To Either Its Action On Utah’s
SIP Or Its Action On Oklahoma’s SIP...........13
CONCLUSION ..........................................................26
ii
TABLE OF AUTHORITIES
Cases
Allied-Signal, Inc. v. U.S. Nuclear Regul.
Comm’n,
988 F.2d 146 (D.C. Cir. 1993) ............................. 20
Am. Rd. & Transp. Builders Ass’n v. EPA,
705 F.3d 453 (D.C. Cir. 2013) ..............1, 14, 15, 21
Box v. Planned Parenthood of Ind. & Ky., Inc.,
587 U.S. 490 (2019)............................................. 26
Carlson v. Postal Regul. Comm’n,
938 F.3d 337 (D.C. Cir. 2019) ............................. 20
Dep’t of Comm. v. New York,
588 U.S. 752 (2019)............................................. 11
FCC v. Pottsville Broad. Co.,
309 U.S. 134 (1940)....................................... 10, 11
Hertz Corp. v. Friend,
559 U.S. 77 (2010)........................................... 3, 17
K Mart Corp. v. Cartier, Inc.,
486 U.S. 281 (1988)............................................. 20
Kentucky v. EPA,
123 F.4th 447 (6th Cir. 2024) ................... 8, 10, 20
Mercantile Nat’l Bank at Dallas v. Langdeau,
371 U.S. 555 (1963)..............................3, 11, 17, 19
iii
Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs.,
545 U.S. 967 (2005)............................................. 18
Navarro Sav. Ass’n v. Lee,
446 U.S. 458 (1980)................................... 3, 17, 19
Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47 (2007)............................................... 17
SEC v. Chenery Corp.,
332 U.S. 194 (1947)............................................. 19
Texas v. EPA,
829 F.3d 405 (5th Cir. 2016)............................... 23
United States v. Stanchich,
550 F.2d 1294 (2d Cir. 1977) .............................. 11
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council,
435 U.S. 519 (1978)............................................. 10
West Virginia v. EPA,
90 F.4th 323 (4th Cir. 2024) ......................... 18, 22
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001)............................................... 6
Yellen v. Confederated Tribes of Chehalis Rsrv.,
594 U.S. 338 (2021)............................................... 7
Statutes And Rules
1 U.S.C. § 1 ................................................................. 9
5 U.S.C. § 551 ........................................................... 20
iv
42 U.S.C. § 7410 ............................................. 4, 5, 6, 9
42 U.S.C. § 7607 ................................... 4, 6, 7, 8, 9, 10,
12, 13, 14, 15, 17, 21
Clean Air Act Amendments of 1977, Pub. L.
No.95-95, 91 Stat. 685 (1977) ............................. 13
Other Authorities
88 Fed. Reg. 87,720 (Dec. 19, 2023)......................... 10
88 Fed. Reg. 9,336 (Feb. 13, 2023)..................... 10, 14
H.R. Rep. No.95-294 (1977) ..................................... 25
U.S. Court Of Appeals For The District Of
Columbia Circuit, Handbook Of Practice And
Internal Procedures (as amd. through Dec. 12,
2024) .................................................................... 25
INTRODUCTION
In their Opening Brief, Industry Petitioners
offered a straightforward, text-based approach to the
venue provision here, Section 307(b)(1).
As to
Section 307(b)(1)’s first and second sentences—
comprising the default venue rule—the statutory
nature of the EPA “action” at issue determines
whether the case belongs in the D.C. Circuit or a
regional Circuit.
A challenge to a statutorily
authorized EPA “action” that is “nationally
applicable” belongs in the D.C. Circuit. A challenge
to an action that is “locally or regionally applicable,”
on the other hand, belongs in the appropriate regional
Circuit. The narrow exception in Section 307(b)(1)’s
third sentence only applies when a statutorily
authorized “action” that is “otherwise locally or
regionally applicable” “ha[s] a nationwide scope or
effect” and EPA publishes a “determination” of that
“scope or effect.” Am. Rd. & Transp. Builders Ass’n v.
EPA, 705 F.3d 453, 455 (D.C. Cir. 2013)
(Kavanaugh, J.). In that event, a challenge to the
action should be reviewed in the D.C. Circuit. Id.
EPA
now
puts
forward
a
convoluted
interpretation of Section 307(b)(1), inventing multiple
elements found nowhere in the statutory text that,
perhaps unsurprisingly, would allow EPA to choose
the D.C. Circuit to hear challenges to its actions,
whenever that happens to be EPA’s preference.
2
Under EPA’s interpretation of the first two
sentences’ default-venue rule, an “action” is
“nationally applicable” if it is packaged in a Federal
Register notice with other actions covering States in
another Circuit. It would, of course, be trivially easy
for EPA to manipulate that framework by packaging
multiple actions from different Circuits into a single
Federal Register notice, such as by combining its
actions on individual state plans in order to funnel
challenges to those plans to the D.C. Circuit. In
response to this obvious risk of gamesmanship, EPA
offers only an atextual, unadministrable “sham”
exception, where courts would disregard EPA’s
packaging of actions if they found that EPA was being
somehow too manipulative. EPA also repeatedly
points to its claimed discretion to publish Federal
Register notices in the way that it wants, but whether
EPA has authority to take certain publication actions
out of administrative convenience has no relevance to
the venue inquiry under Section 307(b)(1)’s text.
EPA’s approach to the third sentence’s narrow
exception is similarly atextual and self-serving. In
EPA’s view, the agency may force a challenge to a
“locally or regionally applicable” action into the D.C.
Circuit whenever EPA can identify any one “core
justification” or “central rationale”—whatever that
means—embodied in a Federal Register notice. Here
too, EPA can make the D.C. Circuit the venue for
challenges to any “locally or regionally applicable”
action because EPA will always be able to identify
some rationale that is consistent across multiple
3
actions. After all, EPA must act consistently when
making similarly situated decisions, under basic
administrative law principles. EPA tries to address
this problem by suggesting yet more tests found
nowhere in the statutory text, such as claiming that
its “core justification” or “central rationale” approach
would only apply to actions resolving “unsettled
issues.” But those additional tests are not found in
the text and would be unadministrable in practice.
There is no reason for this Court to adopt EPA’s
vague and self-serving approach to a provision that
Congress designed to create a neutral rule for
determining venue under the Clean Air Act (“CAA”).
The rules for “the preliminary question of venue”
should be clear. Mercantile Nat’l Bank at Dallas v.
Langdeau, 371 U.S. 555, 558 (1963). Industry
Petitioners’ approach follows the statutory text and is
easy to apply, ensuring that parties do not “eat[ ] up
time and money . . . litigat[ing], 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).
4
ARGUMENT
I.
EPA Cannot Transform Its Action Disapproving
Utah’s SIP And Its Action Disapproving
Oklahoma’s SIP Into A Combined “Nationally
Applicable” Action By Packaging Those Actions
With Its Disapprovals Of 19 Other States’ SIPs
A. Under Section 307(b)(1), the statutory basis for
EPA taking an “action” determines the venue for
challenging that same action. Br. For Industry Pet’rs
at 30–31, PacifiCorp v. EPA, No.23-1068 (U.S. Dec.
13, 2024) (“Industry Br.”).
A challenge to a
“nationally applicable” EPA action—such as
“promulgating any national primary or secondary
ambient air quality standard”—belongs in the D.C.
Circuit under Section 307(b)(1)’s first sentence.
Industry Br.28–29 (quoting 42 U.S.C. § 7607(b)(1)). A
challenge to a “locally or regionally applicable” EPA
action—such as “approving” or “disapprov[ing]” a
SIP—belongs “only” in the appropriate regional
Circuit, under Section 307(b)(1)’s second sentence.
Industry Br.29–30 (quoting 42 U.S.C. § 7607(b)(1)).
Here, the challenges to EPA’s disapprovals of Utah’s
SIP and Oklahoma’s SIP each belong in the Tenth
Circuit. Industry Br.32–40. That is explicit from
Section 307(b)(1)’s text, as well as the CAA provisions
authorizing EPA to act on a State’s SIP. Industry
Br.34–35 (citing 42 U.S.C. § 7410(a)(1), (k)). After all,
the CAA’s SIP provisions authorize state-specific
action, contemplating each State “submitt[ing] a
plan” to EPA and obligating EPA to “act on the
5
submission.”
§ 7410(k)).
Industry Br.33 (quoting 42 U.S.C.
Below, the Tenth Circuit offered two rationales
for holding that EPA’s disapprovals of Utah’s SIP and
Oklahoma’s SIP were just part of a single, “nationally
applicable” action, but both rationales are wrong.
Industry Br.40–46. First, the Tenth Circuit reasoned
that EPA’s decision to package 21 state-specific SIP
disapprovals into a single Federal Register notice
transformed these local actions into a nationally
applicable action. Pet.App.11a. But no matter how
EPA administratively chooses to publish a SIP
disapproval,
the
relevant
“action”
under
Section 307(b)(1) is EPA’s disapproval of the
individual SIP under the agency’s state-specific CAA
authority. Industry Br.41–44. Second, the Tenth
Circuit claimed that venue is also proper in the D.C.
Circuit because EPA applied a “consistent statutory
interpretation and uniform analytical methods” in
disapproving all 21 SIPs, making these disapprovals
a “nationally applicable” action. Pet.App.14a. That
has no grounding in Section 307(b)(1)’s text and would
make the D.C. Circuit the venue for virtually every
CAA action. Industry Br.43–44.
B. EPA does not defend the Tenth Circuit’s
rationale that EPA’s decision to apply an allegedly
uniform methodology across the 21 SIP disapprovals
transformed these actions into a single nationally
applicable action. Instead, EPA defends only the
Tenth Circuit’s “packaging” rationale, while offering
6
a rewrite of Section 307(b)(1) to operationalize that
approach.
See Br. For Fed. Resp’ts at 19–22,
Oklahoma v. EPA, Nos.23-1067, 23-1068 (U.S.
Jan. 17, 2025) (“Resp.Br.”).
In EPA’s view, any
Federal Register notice that packages decisions
impacting States in more than one Circuit can only be
challenged in the D.C. Circuit, Resp.Br.19–22, unless
a newly designed “sham” exception applies, see
Resp.Br.27. This interpretation has no grounding in
the statutory text and would render Section 307(b)(1)
unadministrable by courts, confusing to petitioners,
and easily manipulable by EPA.
EPA’s interpretation of Section 307(b)(1)’s first
two sentences is contrary to the statutory text. As
EPA would have it, to determine whether an action is
either “nationally applicable” or “locally or regionally
applicable,” 42 U.S.C. § 7607(b)(1), courts must assess
whether a Federal Register notice “applies
to . . . entities ‘throughout [the] nation,’” Resp.Br.19
(alteration in original; citation omitted). But the
relevant statutory term—“action”—applies to the
“manner[s] in which an agency may exercise its
power,” which means the action that Congress has
authorized. See Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 478 (2001) (emphasis added). Here, the
action that Congress authorized EPA to take is
approving or disapproving a particular State’s SIP
submission, pursuant to Section 110(k) of the CAA.
See 42 U.S.C. § 7410(k). Under Section 307(b)(1)’s
second sentence, a SIP approval or disapproval action
is “locally or regionally applicable” and so must be
7
challenged in “the appropriate circuit,” 42 U.S.C.
§ 7607(b)(1)—which here is the Tenth Circuit,
Industry Br.32–40. Section 307(b)(1)’s use of the
definite article “the appropriate circuit” only confirms
this conclusion.
Contra Resp.Br.20–21.
EPA’s
approval or disapproval of a SIP under Section 110(k)
is the action that the CAA authorizes EPA to take,
and that remains true without regard to EPA’s
decision to package it (or not) with other statutorily
authorized actions in one Federal Register notice.
Nor can EPA reconcile its argument with
Section 307(b)(1)’s references to SIP approvals and
disapprovals as “locally or regionally applicable”
actions. See Resp.Br.28–29. According to EPA,
because Congress references SIP disapprovals within
the catchall provision of Section 307(b)(1)’s second
sentence, “whether a particular disapproval is locally
or regionally applicable is for the reviewing court to
decide.” Resp.Br.28. But the catchall provision
makes clear that a “final action . . . which is locally or
regionally applicable” “includ[es] any denial or
disapproval” of a SIP.
42 U.S.C. § 7607(b)(1)
(emphasis added).
When Congress uses an
“including” clause, it is typically to “make[ ] clear”
that the referenced terms are in fact “includ[ed]”
within a statutory provision’s scope—not that such
terms may or may not be “includ[ed],” as EPA would
have it. See Yellen v. Confederated Tribes of Chehalis
Rsrv., 594 U.S. 338, 347 (2021). EPA’s contrary
argument also cannot account for Congress’ decision
to classify SIP approvals as “locally or regionally
8
applicable” actions. See 42 U.S.C. § 7607(b)(1);
Industry Br.33–37. EPA’s only response is that its
approval of multiple SIPs in a single Federal Register
entry would render those approvals “nationally
applicable” under Section 307(b)(1)’s first sentence,
Resp.Br.29–30, but that again misreads the
statutorily relevant “action” for venue purposes.
EPA’s argument that “any action that spans more
than one judicial Circuit is properly viewed as
‘nationally applicable’ and subject to review only in
the D.C. Circuit” under Section 307(b)(1), Resp.Br.21,
is both irrelevant here and incorrect. It is irrelevant
because the EPA actions at issue are state-specific:
EPA’s disapproval of Utah’s SIP “spans” only one
State within one Circuit; the same is true of EPA’s
disapproval of Oklahoma’s SIP. And EPA’s position
here is incorrect in any event because even if a
different action did “span” more than one Circuit, that
would not take that action outside Section 307(b)(1)’s
second sentence, which expressly applies to both
“locally or regionally applicable” actions. 42 U.S.C.
§ 7607(b)(1) (emphasis added).
EPA cites no
definition of the term “regionally” that could, for
example, justify concluding that Texas and Oklahoma
are not in the same region, despite being in different
Circuits. Nor can EPA’s position be reconciled with
the plain meaning of “nationally applicable,” which
“contemplates an activity with a nationwide scope,”
Kentucky v. EPA, 123 F.4th 447, 459–60 (6th Cir.
2024)—not one that simply spans more than one
Circuit. While EPA claims that Section 307(b)(1)’s
9
reference to “the appropriate circuit” means that only
one Circuit exists in which to challenge a “locally or
regionally applicable” action, Resp.Br.20–21 (quoting
42 U.S.C. § 7607(b)(1)), as EPA itself explains, the
Dictionary Act instructs that “words importing the
singular include and apply to several persons, parties,
and things,” Resp.Br.23 (quoting 1 U.S.C. § 1).
EPA’s reading of Section 307(b)(1)’s first two
sentences would also lead to arbitrary results.
Consider a situation where EPA packaged together a
group of SIP disapprovals in a single Federal Register
notice, while deferring action on other SIPs because
EPA lacked sufficient information. Under EPA’s
view, its disapprovals of the packaged-together SIPs
would
be
“nationally
applicable”
under
Section 307(b)(1)’s
first
sentence
and
thus
challengeable in the D.C. Circuit. See Resp.Br.22.
But if EPA published an action disapproving just one
of the deferred SIPs after gathering more information
a couple of months later, that disapproval would be
“locally
or
regionally
applicable”
under
Section 307(b)(1)’s second sentence and thus
challengeable in a regional Circuit. See Resp.Br.28.
Yet, for all of those actions, EPA is performing the
same statutorily authorized “action” under the CAA—
disapproving a particular SIP submission. See 42
U.S.C. § 7410(k)(3). And something very close to this
hypothetical occurred here, with EPA packaging its
disapprovals of 21 States’ SIPs in one Federal
Register notice, while deferring its action on other
States’ SIPs, like Wyoming’s SIP, see 88 Fed.
10
Reg. 9,336, 9,354–61 (Feb. 13, 2023), and then
subsequently issuing a notice approving just
Wyoming’s SIP less than a year later, 88 Fed.
Reg. 87,720 (Dec. 19, 2023).
EPA also has no response to Industry Petitioners’
point that the Tenth Circuit’s “packaging” rationale
would allow EPA to handpick the D.C. Circuit as its
option. EPA argues that it has administrative
discretion to package multiple SIP disapprovals in a
Federal Register notice. Resp.Br.23–24 (citing FCC
v. Pottsville Broad. Co., 309 U.S. 134 (1940); Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, 435 U.S. 519 (1978)). But whether EPA may
choose to publish multiple CAA-authorized actions in
a single notice, for its own administrative
convenience,
has
no
relevance
under
Section 307(b)(1)’s statutory text, which focuses upon
the statutorily authorized “action” that EPA has
taken. 42 U.S.C. § 7607(b)(1); see Kentucky, 123
F.4th at 462 (noting that EPA’s “argument conflates
the rule issued in the Federal Register (the EPA’s
words) with the ‘final action’ that the EPA takes (the
statute’s words)”). None of the cases that EPA cites
suggest that agencies may pick their own venue to
defend their actions through Federal Register
publication decisions, especially in the face of a
statute designed to govern venue using neutral, predefined principles.
And while EPA argues that it has not previously
“manipulat[ed] venue by combining unrelated agency
11
actions,” Resp.Br.27, no court before the Tenth
Circuit endorsed EPA’s packaging rationale. It would
“exhibit a naiveté” unsuitable to the judicial branch,
Dep’t of Comm. v. New York, 588 U.S. 752, 785 (2019)
(quoting United States v. Stanchich, 550 F.2d 1294,
1300 (2d Cir. 1977) (Friendly, J.)), to endorse an
approach that empowers EPA to pick its preferred
forum for defending high-stakes actions simply by
deciding “whether applications should be heard
contemporaneously or successively,” Resp.Br.24
(quoting Pottsville, 309 U.S. at 138).
Courts
understand that such power would likely become a
significant factor in how EPA decides to publish its
actions in the Federal Register going forward.
Recognizing this risk of venue manipulation
inherent in its position, EPA asks this Court to adopt
an atextual test for rooting out “sham” packaging.
Resp.Br.25–27. That test would apparently require
courts to ask whether EPA’s “aggregation” was
“arbitrary,” whether its actions were too “unrelated,”
or whether “a particular grouping” was made to
“manipulate venue.” Resp.Br.27. EPA’s “sham” test
finds no grounding in the text of Section 307(b)(1),
and would pose serious administrability concerns—
contrary to the principle that clear rules should
govern “the preliminary question of venue.”
Mercantile Nat’l Bank, 371 U.S. at 558. A court
applying EPA’s “sham” test will encounter difficult
line-drawing problems concerning, for instance,
whether bundled EPA actions are sufficiently
“related” so as not to reveal an impermissible intent
12
to manipulate venue. And different courts are likely
to answer these questions in different ways, leading
to uncertainty for litigants in deciding where to file a
petition for review under Section 307(b)(1).
Industry
Petitioners’
approach
to
Section 307(b)(1), in contrast, is easy to apply. A
petitioner need only identify the statutory nature of
the action it wishes to challenge and compare that to
the
specifically
referenced
actions
in
Section 307(b)(1)’s first and second sentences, as well
as (if necessary) the catchalls. Industry Br.30–32.
This will usually be straightforward, given that
Section 307(b)(1) itself lists numerous “nationally
applicable” and “regionally or locally applicable”
actions. The regionally or locally applicable actions
include the very SIP approvals and SIP disapprovals
at issue here. See 42 U.S.C. § 7607(b)(1). EPA does
not identify any instance in which applying Industry
Petitioners’ interpretation to Section 307(b)(1)’s first
and second sentences would be difficult. And none of
the regional Circuits applying this test had any
trouble concluding that the challenges here belong in
those regional Circuits. Industry Br.22–23. Only the
Tenth Circuit reached a different conclusion, but that
is only because it used the wrong test.
Finally, EPA’s legislative-history arguments,
Resp.Br.21–22, do not help its position. The 1977
amendments to Section 307 expanded Court of
Appeals review over EPA’s actions under the CAA,
while permitting review of a locally or regionally
13
applicable action in the D.C. Circuit where a locally
or regionally applicable action has a “nationwide
scope or effect,” and EPA publishes a “determination”
to that effect. See Clean Air Act Amendments of 1977,
Pub. L. No.95-95, § 305(c), 91 Stat. 685, 776 (1977).
EPA cannot explain why Congress would have
carefully distinguished between EPA actions that are
“nationally applicable” and actions that are “locally or
regionally applicable” in Section 307(b)(1), only to
allow EPA to circumvent that statutory design by
packaging locally or regionally applicable actions
together in a single Federal Register notice, subject
only to an ill-defined and atextual “sham” inquiry.
II. Section 307(b)(1)’s Narrow Exception Does Not
Apply
Because
EPA
Made
No
Valid
“Determination Of Nationwide Scope Or Effect”
As To Either Its Action On Utah’s SIP Or Its
Action On Oklahoma’s SIP
A. Section 307(b)(1)’s third sentence provides a
narrow exception to the default rule found in the first
two sentences, specifying that the D.C. Circuit is the
proper venue for challenging a “locally or regionally
applicable” action that is “based on a determination of
nationwide scope or effect,” where EPA validly “finds
and publishes that such action is based on such a
determination.” 42 U.S.C. § 7607(b)(1); Industry
Br.46–57.
This admittedly awkwardly worded
provision is best understood as applying to “otherwise
locally or regionally applicable regulations [that] have
a nationwide scope or effect.” Am. Rd. & Transp.
14
Builders Ass’n, 705 F.3d at 455; Industry Br.48. To
take advantage of this narrow exception, EPA must
correctly identify the statutory “action” at issue, then
validly determine that it took that action “based on a
determination” of the “nationwide scope or effect” of
that action, and then publish this finding. 42 U.S.C.
§ 7607(b)(1); Industry Br.48–49.
Here, this exception does not apply because EPA
failed to identify the statutorily relevant action—
EPA’s disapproval of Utah’s SIP and Oklahoma’s SIP,
respectively. Further, EPA could not rationally have
determined that it took either of those narrow, statespecific actions based upon those SIPs’ nationwide
“scope” or “effect.” Industry Br.49–54. EPA explained
in its Federal Register notice that it published its
notice denying the SIPs of 21 different States “based
on a determination of ‘nationwide scope or effect,’”
88 Fed. Reg. at 9,380, but those 21 different SIPs are
not the proper statutory focus. Under the statute,
EPA must focus on each action, not EPA’s handselected group of actions. Industry Br.49–51. EPA
could not have disapproved Utah’s SIP or Oklahoma’s
SIP “based on” a “determination” of either of those
individual SIP’s “nationwide scope.” The scope of
those SIPs is to regulate sources only within each
respective State. Industry Br.51–53. And EPA could
not have disapproved Utah’s SIP or Oklahoma’s SIP
“based on” a “determination” of either SIP’s
“nationwide effect,” as EPA only (erroneously) found
at most a regional effect from Utah and Oklahoma
emissions on receptors in one part of Colorado for
15
Utah and two receptors in parts of Texas for
Oklahoma. Industry Br.51–54.
B. EPA fails to address Industry Petitioners’
approach to Section 307(b)(1)’s third sentence,
appearing to focus its attack primarily on State
Petitioners’
different
approach.1
EPA
misunderstands Industry Petitioners to be arguing
that its disapprovals of Utah’s SIP and Oklahoma’s
SIP “fall[ ] outside Section 7607(b)(1)’s third prong
because the States’ plan submissions and EPA’s
analysis had State-specific aspects.” Resp.Br.44. But
under the third prong, EPA’s “finding” of either a
“nationwide scope” or a nationwide “effect” under
Section 307(b)(1)’s third sentence is invalid because
(1) EPA first failed to identify the statutorily relevant
actions—namely, its actions on Utah’s SIP and
1 Industry Petitioners’ approach to Section 307(b)(1)’s third
sentence is different than the approach that State Petitioners
urge, although all Petitioners agree that the Tenth Circuit is the
proper venue here under either approach. State Petitioners’
approach considers EPA’s “ultimate reasons” or “ultimate
justifications” for EPA taking the “locally or regionally
applicable action” at issue, looking to whether those “ultimate
reasons” or “ultimate justifications” are of a “nationwide” “scope
or effect.” Br. For State Pet’rs at 40–41, Oklahoma, Nos.23-1067,
23-1068 (U.S. Dec. 13, 2024) (quoting 42 U.S.C. § 7607(b)(1)).
Industry Petitioners’ approach, by comparison, looks to the
“locally or regionally applicable” action itself, asking whether
EPA took that action based on its determination that the action
has “a nationwide scope or effect.” Industry Br.47–48 (quoting
Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 455).
16
Oklahoma’s SIP, respectively—and (2) once the
proper action is identified, no valid scope or effect
finding by EPA would be possible on the specific facts
here. Industry Br.46–54; supra p.14. Because EPA
never contends with these arguments, see generally
Resp.Br.31–41, if this Court agrees with Industry
Petitioners that Section 307(b)(1)’s third sentence
focuses on the relevant statutory “action,” the Tenth
Circuit is the appropriate venue.
EPA’s interpretation of Section 307(b)(1)’s third
sentence is hard to cobble together from its Brief, but
Industry Petitioners’ best attempt at understanding
EPA’s view is as follows: Section 307(b)(1)’s third
sentence applies “when EPA’s final action sets out as
a core justification a principle or conclusion that is
intended to govern the agency’s decisionmaking in
actions throughout the country, or when a central
rationale for EPA’s final action has legal
consequences for entities beyond a single judicial
circuit,” Resp.Br.32 (emphases added), but this
rationale only applies if it resolves “an unsettled
issue,” not if it “merely applies a previously
established agency rule, policy, or interpretation to
new locally or regionally applicable circumstances,”
Resp.Br.46 (citations omitted).
EPA’s interpretation attempts to add multiple
elements to Section 307(b)(1) that have no basis in the
statutory text. Nothing in the text instructs litigants
deciding where to file their petitions to figure out
EPA’s multiple “core justification[s],” Resp.Br.32, for
17
taking the action at issue. Similarly, the statutory
text does not support a court inquiring into EPA’s
various “central rationale[s],” Resp.Br.32, for its
action. While EPA attempts to rest these elements on
the phrase “based on” in Section 307(b)(1), EPA
claims only that this term means a “but-for causal
relationship” or a “necessary logical condition.”
Resp.Br.31 (quoting Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 63 (2007)). Identifying something as a
“but-for” cause does not mean that it is a “core” or
“central” cause. Resp.Br.32. Nor are there any
textual grounds for EPA’s position that only actions
resolving an “unsettled issue,” Resp.Br.46, fall within
the scope of Section 307(b)(1)’s third sentence, see
generally 42 U.S.C. § 7607(b)(1). EPA attempts to
justify the “unsettled issue” element by pointing to
the term “determination,” which EPA defines as “the
settling and ending of a controversy, esp. by judicial
decision,” Resp.Br.46 (citation omitted). But that
definition covers both disputes over unsettled
principles and the application of settled rules to new
factual circumstances. And, as explained above, an
action can be regional even if it involves two States in
neighboring Circuits. See supra pp.8–9.
EPA’s approach here is also unadministrable,
violating EPA’s own observation that venue rules
should “allow[ ] courts and litigants to quickly and
efficiently determine where venue lies,” contra
Resp.Br.26, which is a goal of venue provisions, see
Mercantile Nat’l Bank, 371 U.S. at 558; Hertz Corp.,
559 U.S. at 94 (citation omitted). Under EPA’s
18
approach, a “locally or regionally applicable” action
falls within Section 307(b)(1)’s third sentence as long
as “a core justification” or “a central rationale” for that
action covers more than one Circuit in its scope or
effect.
Resp.Br.32 (emphases added).
That
justification or rationale need only be “one but-for
cause,” but at the same time somehow “central” or
“core.” Resp.Br.31–32 (citations omitted). EPA offers
no guidance for how a prospective petitioner or court
is to determine whether any given justification or
rationale satisfies its convoluted test, but instead just
reiterates that the justification or rationale must “lie
at the core of the agency action and cannot be merely
peripheral or extraneous.”
Resp.Br.32 (citation
omitted). In any event, it appears that such a
standard could well be satisfied in every case, as the
Administrative Procedure Act requires EPA to apply
uniform and consistent methodologies in actions
involving similarly situated entities. See Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 981 (2005); West Virginia v. EPA, 90 F.4th
323, 329–30 (4th Cir. 2024).
EPA’s own Brief inadvertently illustrates the
problems with its proposed approach. EPA claims
that it has satisfied its test for Section 307(b)(1)’s
third sentence because its rulemaking was “based on
at least four determinations of nationwide scope or
effect”: EPA’s reliance on “updated, 2016-based
modeling”; its application of “a 1% contribution
threshold across all States”; its rejection of a State’s
reliance on “relative [emissions] contributions of other
19
States or countries”; and its rejection of a linked
State’s reliance “on emission-reduction measures that
are not actually incorporated into its state plan.”
Resp.Br.34–36 (emphasis added; citations omitted).
Of course, EPA failed to identify several of these
“determinations” in its Federal Register notice, and so
cannot now rely on them to justify its approach. SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947). But, in
any event, it is not clear how a litigant or court would
decide whether these four determinations are
sufficiently “core,” rather than “peripheral or
extraneous,” to EPA’s reasoning, Resp.Br.32 (citation
omitted)—especially given that venue is a
“preliminary question” that should be decided before
merits briefing has commenced, Mercantile Nat’l
Bank, 371 U.S. at 558. Are only two of the four
determinations sufficient? See Resp.Br.38 n.7 (“[T]he
four specified nationwide determinations taken
together . . . were a but-for cause of EPA’s decision[.]”
(emphasis added)). And should it not be relevant that
the four considerations do not all apply to all 21 SIP
disapprovals?
See Resp.Br.35 (discussing third
consideration and citing 88 Fed. Reg. at 9,378, where
EPA addressed SIP submissions from only 11 States);
Resp.Br.35 (discussing fourth consideration, which is
relevant only to “many States”). And so on.
EPA’s reference to the Sixth Circuit’s vacatur of
EPA’s disapproval of Kentucky’s SIP highlights these
same problems—and more. Resp.Br.37–38. EPA
argues that the Sixth Circuit’s vacatur of EPA’s
disapproval of Kentucky’s SIP in Kentucky, 123 F.4th
20
447, “logically implies that the challenged
disapproval action is ‘based on’ the nationwide
determinations” for purposes of Section 307(b)(1)’s
third sentence because “judicial invalidation of the
relevant determinations provided a sufficient basis
for finding the final action itself [unlawful].”
Resp.Br.37–38. So, under EPA’s test, a “rationale” or
“justification” for the action at issue may be “central”
or “core” if a court would vacate the action after
concluding that the rationale or justification was
defective. See Resp.Br.38. That further muddles the
venue analysis. Perhaps EPA believes that the court
considering the venue question would need to conduct
a hypothetical severability analysis, asking whether
the “determination,” if it was ultimately held invalid,
would be severable from the rest of the action and
whether “the regulation would not have been passed
but for its inclusion.” K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 294 (1988); see also Carlson v. Postal
Regul. Comm’n, 938 F.3d 337, 351–52 (D.C. Cir.
2019); 5 U.S.C. § 551(13). Or perhaps EPA means
that the court would need to conduct a hypothetical
analysis under the D.C. Circuit’s two-factor test in
Allied-Signal, Inc. v. U.S. Nuclear Regulatory
Commission, 988 F.2d 146 (D.C. Cir. 1993), asking
how “serious[ ]” the agency’s error would be if the
determination was invalidated, and how “the
disruptive consequences” of any vacatur would be
based on that hypothetical error, id. at 150–51. EPA
does not provide any answer to these questions. See
Resp.Br.37–38.
21
Industry Petitioners’ test, in contrast, is easy to
apply. A prospective petitioner or court must only
consider whether EPA took the “otherwise locally or
regionally applicable action” at issue because the
agency validly determined that the action itself has a
“nationwide scope or effect.” Am. Rd. & Transp.
Builders Ass’n, 705 F.3d at 455. Determining
whether the “action” at issue has a nationwide scope
or effect will also usually be straightforward.
Industry Br.48. An action has “nationwide scope,”
42 U.S.C. § 7607(b)(1), if it extends across the Nation,
not just a single State or region. And an action has a
“nationwide . . . effect,” id., if the action has
consequences for States across the country, not just
locally or within a region, Industry Br.48. None of the
four alleged determinations that EPA identifies as
“core” to its reasoning here has any relevance to the
analysis under Section 307(b)(1)’s third sentence, as
all of them relate to the process that EPA used to
reach its decisions, not to the scope or effect of either
of the two SIP disapprovals themselves. Compare
Resp.34–36, with Industry Br.46–49.
EPA’s claim that Petitioners’ positions render
Section 307(b)(1)’s third sentence “meaningless,”
Resp.Br.41–42, is also wrong. In the SIP disapproval
context, for example, EPA’s disapproval of one State’s
SIP will always be a “locally or regionally applicable”
action under Section 307(b)(1)’s second sentence. See
supra Part I.
Because the statute specifically
identifies EPA’s actions on a SIP as locally or
regionally applicable, even if no SIP qualified for the
22
exception, that sentence would still have meaning for
other types of actions. But, in rare exceptions, such
as if EPA makes a “determination” that it is issuing a
SIP disapproval because a particular State’s SIP
significantly impacts States throughout the entire
Nation, that determination may well be valid under
Section 307(b)(1)’s third sentence. This could occur,
for example, if a State’s downwind pollution problems
were so widespread that they significantly impacted
receptors across the Nation. Similar examples would
arise in other areas of EPA’s authority under the
CAA, refuting EPA’s surplusage concerns.
It is EPA’s approach to Section 307(b)(1)’s third
sentence that creates surplusage by rendering
Section 307(b)(1)’s second sentence a nullity
whenever EPA wants it to be. Industry Br.55. After
all, EPA could fit virtually every “locally or regionally
applicable” action into its view of Section 307(b)(1)’s
third sentence because EPA applies policies that are
consistent nationwide for every action. Industry
Br.55 (citing West Virginia, 90 F.4th at 329–30).
Indeed, failure to act consistently across States would
suggest an arbitrariness to EPA’s actions that would
itself be unlawful. See supra p.18.
None of the three purported “limitations” that
EPA points to refute this surplusage concern.
Resp.Br.46–49.
First, EPA claims that its
“determinations” would be subject to “arbitrary-andcapricious review,” Resp.Br.46, but it is unclear how
a court would decide if EPA arbitrarily applied its test
23
given the indeterminacy of deciding whether, for
example, a “rationale” or “justification” for EPA’s
action is sufficiently “central” or “core,” for purposes
of Section 307(b)(1)’s third sentence, see supra pp.18–
20.2 Second, EPA’s “suggest[ion]” that only actions
that resolve “an unsettled issue” fall within Section
307(b)(1)’s third sentence does not provide a
meaningful limit either, as EPA offers no guidance for
deciding what is a “settl[ed]” issue or when it is clear
that an issue is “settl[ed],” such that courts and
parties know at the outset the proper venue for a
given challenge to an EPA action.
Resp.Br.46
(citation omitted). To take just one example, when
EPA approved Wyoming’s SIP by using several of the
same rationales found in the Federal Register notice
disapproving 21 States’ SIPs several months earlier,
was EPA applying a “settl[ed]” interpretation from
earlier that year? See supra pp.9–10. Finally, EPA’s
promise that it would not use its proposed test to
shoehorn every “locally or regionally applicable”
action into Section 307(b)(1)’s third sentence,
Resp.Br.48, is no limitation at all, but rather is a tacit
admission that EPA has offered no administrable
test, see supra pp.18–20.
The Industry Petitioners believe that de novo review,
rather than arbitrary-and-capricious review, applies to EPA’s
“determinations” under Section 307(b)(1)’s third sentence. See
Texas v. EPA, 829 F.3d 405, 421 (5th Cir. 2016). Regardless,
even de novo review would not offer a meaningful constraint on
EPA’s approach, given how vague EPA’s proposed test is.
2
24
The statutory and legislative history surrounding
Section 307(b)(1) cast no doubt on Industry
Petitioners’ approach. Contra Resp.Br.38–41, 42–43.
As Industry Petitioners explained, Industry
Br.36–37, a challenge to an action related to SIPs that
comprises “uniform determinations of nationwide
effect” without “involv[ing] facts or laws peculiar to
any one jurisdiction”—such as a uniform extension of
the States’ “attainment deadlines” by EPA,
Resp.Br.39–40 (citation omitted)—may well belong in
the D.C. Circuit, including because such an action
could well be “nationally applicable” under
Section 307(b)(1)’s first sentence, Industry Br.36–37
(referencing the same statutory history as EPA).
Relatedly, EPA claims that this case is
“illustrative” of Industry Petitioners’ interpretation
“lead[ing] to the very problems Congress sought to
avoid in amending the CAA’s venue provision to
include the nationwide-scope-or-effect language,”
Resp.Br.48, but the opposite is true. The merits
briefing in the multiple regional Circuits has involved
substantial discussion of state- and region-specific
reasons at issue in EPA’s discrete, state-specific SIP
disapprovals, of just the type that Industry
Petitioners highlighted in their Opening Brief.
Industry Br.51–54.3 That reflects Congress’ sensible
3 See, e.g., State Br. at 42–53, West Virginia v. EPA, No.23-
1418, Dkt.80 (4th Cir. June 3, 2024); State Br. at 21–27, Ky.
Energy & Env’t Cabinet v. EPA, No.23-3225, Dkt.51-1 (6th Cir.
25
preference, expressed in Section 307(b)(1), for the
regional Circuits to review “essentially locally,
statewide, or regionally applicable rules or orders,”
such as actions on SIPs. H.R. Rep. No.95-294, at 323
(1977); Industry Br.10–12. That state-specific focus
is usually not possible in a consolidated action before
the D.C. Circuit, where parties must often brief with
other parties and/or with limited word counts, see
U.S. Court Of Appeals For The District Of Columbia
Circuit, Handbook Of Practice And Internal
Procedures IX.A.2, 7 (as amd. through Dec. 12, 2024),
making thoroughly briefing state-specific issues
impossible.
Consolidated proceedings would be
especially harmful for petitioners in cases like this,
where EPA has grouped its actions on 21 different
States’ SIPs together in one Federal Register notice.
Finally, EPA argues that its approach to
Section 307(b)(1)’s first sentence would avoid the
inefficiencies and risks of Circuit splits arising from
“litigating substantially similar challenges to [this
rulemaking] in eight courts of appeals,” rather than
in the D.C. Circuit only.
Resp.Br.48–49.
Section 307(b)(1)’s second sentence protects regional
Circuit review of States’ SIPs, making some
differences or contradictions between Circuit
decisions inevitable because the Circuits are
Jan. 29, 2024); EPA Br. at 143–194, Arkansas v. EPA, Nos.231320, 23-1719, 23-1776, Dkt.5335228 (8th Cir. Nov. 13, 2023);
EPA Br. at 60–82, Utah v. EPA, Nos.23-9509, 23-9512, 23-9520,
Dkt.010110940565 (10th Cir. Oct. 24, 2023).
26
considering state-specific facts, processes, and
actions. And even if Circuit splits were to arise, that
may well be beneficial for the development of the law.
As the Federal Government recently explained at
Oral Argument in separate proceedings, an agency
litigating similar cases in Circuits across the
country—even “eight different circuits”—“ensur[es]
that cases can percolate among multiple courts before
they get to this Court.” Tr. of Oral Arg. at 30, FDA v.
R.J. Reynolds Vapor Co., No.23-1187 (U.S. Jan. 21,
2025); see Box v. Planned Parenthood of Ind. & Ky.,
Inc., 587 U.S. 490, 496 (2019) (Thomas, J., concurring)
(noting that “percolation” among the Circuits can
“assist” this Court’s “review of [ ] issue[s] of first
impression”).
CONCLUSION
This Court should reverse the judgment of the
Tenth Circuit and remand with instructions to
proceed to the merits of these petitions for review.
27
Respectfully submitted,
AARON M. STREETT
J. MARK LITTLE
BAKER BOTTS L.L.P.
910 Louisiana Street
Houston, TX 77002
SARAH DOUGLAS
BAKER BOTTS L.L.P.
700 K Street N.W.
Washington, D.C. 20001
Attorneys for the
Oklahoma Industry
Petitioners
MISHA TSEYTLIN
Counsel of Record
JEFF P. JOHNSON
KEVIN M. LEROY
KAITLIN L. O’DONNELL
TROUTMAN PEPPER
LOCKE LLP
111 South Wacker Drive
Suite 4100
Chicago, IL 60606
(608) 999-1240
misha.tseytlin@troutman.com
STEVEN J. CHRISTIANSEN
DAVID C. REYMANN
PARR BROWN GEE
& LOVELESS
101 South 200 East
Suite 700
Salt Lake City, UT 84111
Attorneys for Deseret
Generation &
Transmission CoOperative
MARIE BRADSHAW DURRANT
Vice President and
General Counsel
CHRISTIAN C. STEPHENS
Senior Attorney
PACIFICORP
1407 West North Temple
Suite 320
Salt Lake City, UT 84116
Attorneys for PacifiCorp
28
H. MICHAEL KELLER
ARTEMIS D. VAMIANAKIS
FABIAN VANCOTT
95 South State Street
Suite 2300
Salt Lake City, UT 84111
Attorneys for Utah
Associated Municipal
Power Systems
CARROLL WADE
MCGUFFEY III
MELISSA HORNE
TROUTMAN PEPPER
LOCKE LLP
600 Peachtree St. N.E.
Suite 3000
Atlanta, GA 30308
Attorneys for PacifiCorp
EMILY L. WEGENER
General Counsel
UTAH ASSOCIATED
MUNICIPAL POWER
SYSTEMS
155 North 400 West
Suite 480
Salt Lake City, UT 84103
Attorneys for Utah
Associated Municipal
Power Systems
ALAN I. ROBBINS
DEBRA D. ROBY
WASHINGTON ENERGY
LAW LLP
900 17th St. NW
Suite 500-A
Washington, D.C. 20006
Attorneys for Utah
Municipal Power Agency
February 2025
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