Amicus Curiae Brief — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.

No. 23-1229

In the Supreme Court of the United States

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, PETITIONER,

v.

CALUMET SHREVEPORT REFINING, L.L.C., ET AL.,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF NEITHER

PARTY

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

Counsel for Amicus Curiae

(Additional counsel listed inside cover)

ERIC GROTEN

VINSON & ELKINS LLP

200 West 6th St.,

Suite 2500

Austin, TX 78701

GARRETT T. MEISMAN

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities .................................................... II

Interest of Amicus Curiae ........................................... 1

Introduction and Summary of Argument ................... 3

Argument ..................................................................... 7

I.

Members

of

the

Nation’s

Business

Community, Like All Litigants, Benefit from

Clear and Predictable Rules Regarding Venue.

............................................................................... 7

II. This Court Should Interpret Section 307(b)(1)

of the Clean Air Act in a Manner that Provides

Clear,

Predictable,

and

Administrable

Principles for Determining Venue. ..................... 12

III. As Applied in This Case, These Principles

Support Adopting an Interpretation that

Gives Real and Substantial Effect to the

Entire Text of Section 307(b)(1)’s Venue

Provisions. ........................................................... 19

Conclusion .................................................................. 23

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Alabama v. EPA,

No. 23-11196 (11th Cir. Oct. 24, 2024).................. 11

Arkansas v. EPA,

No. 23-1320 (8th Cir. May 25, 2023) ..................... 11

Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246 (2024) ................................................ 14

Calumet Shreveport Refin., L.L.C. v. EPA,

No. 22-60266 (5th Cir. Oct. 21, 2022)...................... 9

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

45 F.4th 380 (D.C. Cir. 2022) .......................... 10, 21

Consol. Edison Co. of N.Y. v. FERC,

823 F.2d 630 (D.C. Cir. 1987) ................................ 21

Dalton Trucking, Inc. v. EPA,

808 F.3d 875 (D.C. Cir. 2015) ................................ 10

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) ................................................ 7, 20

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ................................................ 11

Hertz Corp. v. Friend,

559 U.S. 77 (2010) .................................... 7, 8, 15, 20

Hunt Ref. Co. v. EPA,

90 F.4th 1107 (11th Cir. 2024) .......................... 9, 10

Hunt Ref. Co. v. EPA,

No. 22-11617 (11th Cir. Aug. 31, 2022) ................... 9

Kentucky v. EPA,

No. 23-3216, 2024 WL 5001991 (6th Cir. Dec.

6, 2024) ............................................................... 9, 16

III

Cases—Continued:

Page(s)

Liu v. SEC,

591 U.S. 71 (2020) .................................................. 17

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ................................................ 10

Navarro Sav. Ass’n v. Lee,

446 U.S. 458 (1980) .................................................. 8

Nielsen v. Preap,

586 U.S. 392 (2019) ................................................ 17

Sierra Club v. EPA,

926 F.3d 844 (D.C. Cir. 2019) ................................ 10

Texas v. EPA,

706 F. App’x 159 (5th Cir. 2017) ........................... 18

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ............................ 10, 17

Texas v. EPA,

No. 23-60069, 2023 WL 7204840 (5th Cir.

May 1, 2023) ........................................................... 11

Travis v. United States,

364 U.S. 631 (1961) ................................................ 20

Virginia v. United States,

74 F.3d 517 (4th Cir. 1996) .................................... 11

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) .................................. 21

West Virginia v. EPA,

No. 23-1418 (4th Cir. Oct. 21, 2024)...................... 11

IV

Statutes:

15 U.S.C. § 717r(d)(1) ................................................ 18

42 U.S.C. § 6976(a)(1) ................................................ 18

42 U.S.C. § 7607(b)(1) ............................. 2, 4, 12-13, 14

42 U.S.C. § 9613(a) .................................................... 18

Other Authorities:

Dodson, Scott, The Complexity of Jurisdictional

Clarity, 97 Va. L. Rev. 1 (2011) ........................... 7, 8

Friedman, Barry, Under the Law of Federal

Jurisdiction: Allocating Cases Between

Federal and State Courts,

104 Colum. L. Rev. 1211 (2004) ........................... 7-8

Lambert, William Grayson, The Necessary

Narrowing of General Personal Jurisdiction,

100 Marq. L. Rev. 375 (2016) ............................ 8, 15

Litwiller, Lisa, Why Amendments to Rule 23

Are Not Enough: A Case for the Federalization

of Class Actions,

7 Chap. L. Rev. 201 (2004) ...................................... 9

Nash, Jonathan Remy, On the Efficient

Deployment of Rules and Standards to Define

Federal Jurisdiction,

65 Vand. L. Rev. 509 (2012) .............................. 8, 15

Scalia, Antonin & Garner, Bryan A., Reading

Law: The Interpretation of Legal Texts (2012) ...... 12

INTEREST OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than 3 million companies and professional organizations of every

size, in every industry sector, and from every region of

the country. An important function of the Chamber is

to represent the interests of its members in matters

before Congress, the Executive Branch, and the courts.

To that end, the Chamber regularly files amicus curiae

briefs in cases, like this one, that raise issues of concern to the nation’s business community.

The Chamber has an interest in maintaining efficient and predictable mechanisms for judicial review

of federal agency action. An important, frequently recurring, and oft-litigated threshold question in such

cases is which court or courts are the proper venue for

challenges. All stakeholders—even those whose underlying interests in the merits of a dispute may be

diametrically opposed—have a shared interest in having clear and readily administrable rules governing

the selection of venue. Unclear and unpredictable

venue rules can lead to wasteful and time-consuming

threshold litigation about whether venue is proper, increasing the overall cost and uncertainty, and delaying the ultimate resolution, of challenges to agency action.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

(1)

2

The venue provisions in Section 307(b)(1) of the

Clean Air Act, 42 U.S.C. § 7607(b)(1), are significant

in their own right, as they specify venue for judicial

review of a broad range of actions taken by the Environmental Protection Agency under the Clean Air

Act—actions that, individually and in aggregate, can

have significant practical and economic consequences

for members of the nation’s business community. Uncertainty and confusion about the meaning of these

important provisions can have materially negative effects—as vividly illustrated by the circumstances and

lengthy procedural history of the cases under review

and other related litigation.

The Chamber files this brief as amicus curiae in

support of neither party, taking no position on the

Court’s ultimate judgment in this case. Instead, the

Chamber urges the Court to adopt an interpretation

that provides clarity and predictability to all stakeholders, and minimizes or avoids unnecessary and

wasteful threshold litigation over the appropriate

venue for challenges brought under the Clean Air Act.

In the Chamber’s view, those interests would be best

served by an interpretation of Section 307(b)(1) that is

faithful to the ordinary meaning of the statutory text,

discerned using the traditional tools of statutory construction.

By contrast, interests in clarity and predictability

would be disserved by a reading that allows the government to unilaterally select (or even manipulate)

the proper venue through its choice of formalities,

such as whether to “bundle” together several individual actions into a single omnibus notice for purposes

of publication in the Federal Register. Similarly,

3

interests in clarity and predictability would be disserved by an interpretation that fails to give meaning

and independent significance to each of the separate

provisions in Section 307(b)(1), which provide guidance to litigants by drawing a line between cases that

can be brought only in the D.C. Circuit and cases for

which venue lies exclusively in the appropriate regional circuit. The Court should not endorse a reading

that would deprive any portion of Section 307(b)(1) of

meaningful independent effect. Such a reading would

not comport with the statutory text and would have

adverse consequences for members of the nation’s

business community and for other litigants.

INTRODUCTION AND

SUMMARY OF ARGUMENT

I. The nation’s businesses, no less than other litigants, benefit from clarity and predictability in rules

regarding where and when lawsuits can be brought,

including rules regarding the selection of venue in

challenges to federal agency action. Litigants avoid

spending time and money litigating threshold issues,

when it is clear up front which court should adjudicate

a particular dispute. Clarity in the articulation of

venue principles, in turn, promotes predictability in

their application, enabling private parties to make informed business and investment decisions and otherwise order their affairs. In short, certainty, transparency, and predictability regarding where certain types

of claims will be litigated yield real-world benefits to

litigants and other stakeholders.

By contrast, complexity and uncertainty in the

rules governing where a case may be brought consume

valuable resources as parties litigate the choice of the

4

appropriate forum. In the context of litigation challenging federal agency actions, uncertainty regarding

venue rules can generate still further inefficiencies,

such as the filing and consideration of protective petitions in multiple courts, when the law is unclear as to

which court is appropriate, and the preparation and

consideration of merits briefs in cases that are ultimately dismissed for improper venue. Meanwhile,

resolution of merits issues is delayed, undermining

Congress’s decision to expedite challenges to certain

federal agency actions by (as here) authorizing direct

appellate review. Delay in resolving challenges to

EPA’s actions in administering the Clean Air Act can

harm all stakeholders, increasing transition and compliance costs for regulated parties, and extending periods of uncertainty while EPA’s actions remain under

review.

II. Section 307(b)(1) specifies that EPA’s nationally applicable actions will be reviewed in the D.C. Circuit, while regionally or locally applicable actions will

be reviewed in the appropriate regional circuit, unless

such an action is based on a determination of nationwide scope or effect. Although the Chamber takes no

position on the Court’s ultimate judgment in this case,

and does not attempt to provide a universal taxonomy

of the cases that belong in the D.C. Circuit versus regional circuits, this brief offers several interpretative

points that would advance interests of clarity and predictability.

First, a key textual distinction in Section 307(b)(1)

is whether a given EPA action is “nationally” versus

“locally or regionally” applicable.

42 U.S.C.

§ 7607(b)(1). While hard cases for drawing that line

5

may exist, the inquiry should remain focused on the

substance of the actions being taken by EPA, with

close attention to the statutory authority pursuant to

which EPA has acted. That approach follows from the

statutory text, which defines venue for different categories of cases by cross-referencing substantive provisions of the Clean Air Act. Where the substance of an

EPA action is specific to a particular region or locality,

that action should be reviewed in the appropriate regional circuit. Conversely, when the substance of

EPA’s action is nationally applicable, the case belongs

in the D.C. Circuit.

Second, and relatedly, venue determinations

should not turn on formalistic or procedural distinctions that are disconnected from the substance of

EPA’s action. Such an interpretation would open the

door to manipulation, undermining interests in predictability and certainty. It would be improper, therefore, to treat the analysis of venue under Section

307(b)(1) as affected or even determined by whether

EPA decides to bundle multiple individual actions into

a single notice for publication in the Federal Register,

if in fact each individual action pertains to a specific

location. Allowing such bundling to affect the venue

analysis would increase uncertainty and inefficiency

for actions that, in substance, are fundamentally local

or regional in nature. And it would disserve interests

in predictability, because regulated parties would

have no way of knowing in advance whether EPA

would combine multiple individual actions (each regional or local in character) into a single publication

package.

6

Third, meaningful effect should be given to each

separate part of the venue provisions in Section

307(b)(1). Congress took care to identify and distinguish between classes of cases that are always subject

to review in the D.C. Circuit (first sentence), and classes of cases that are presumptively subject to review

in the regional circuits (second sentence). And Congress provided a narrow exception to the second sentence, for regional actions that are “based on a determination of nationwide scope or effect” (third sentence). The third sentence should be interpreted in

light of that structure and not as a means for overriding the division in the previous two sentences.

III. Applying these principles to the issues before

the Court, a few limiting principles become clear.

First, EPA has argued under the first sentence of Section 307(b)(1) that it can effectively channel any case

to the D.C. Circuit by packaging together multiple individual actions. That argument, however, runs afoul

of each of the principles discussed above, that interpretation of the venue provisions should focus on the

statutory text and the substance of EPA’s actions, and

that the Court should avoid an interpretation that

would fail to give meaningful import to each sentence

in the provisions.

Second, an interpretation that makes an action reviewable in the D.C. Circuit under the third sentence

of Section 307(b)(1), so long as EPA identifies and applies some underlying “statutory interpretation” or

“economic analysis” that applies throughout the country and that functions as even one among potentially

many “but-for” causes of the agency’s action, would improperly deprive the second sentence of Section

7

307(b)(1) of much, if not all, meaningful effect. After

all, it should almost always be the case that, in adjudicating individual applications, the agency will

acknowledge and apply some interpretation of the

Clean Air Act or other analytical framework that plays

a meaningful causal role in its decisionmaking. More

is required to trigger the third sentence of Section

307(b)(1).

Third, consistent with ordinary principles of statutory construction, meaningful effect must be given to

each of the separate provisions in Section 307(b)(1)—

including the first, second, and third sentences.

However the Court resolves the specific issues

presented here, it should strive to adopt a clear interpretation of the venue provisions of Section 307(b)(1)

that gives effect to each of their components.

ARGUMENT

I.

Members

of

the

Nation’s

Business

Community, Like All Litigants, Benefit from

Clear and Predictable Rules Regarding

Venue.

This Court favors, and litigants benefit from,

“clear boundaries” and “administrative simplicity”

when it comes to the interpretation of statutes dictating where a case should be heard. Direct Mktg. Ass’n

v. Brohl, 575 U.S. 1, 11 (2015); Hertz Corp. v. Friend,

559 U.S. 77, 94 (2010). As courts and commentators

have long recognized, such “clarity generally reduces

litigant costs,” Scott Dodson, The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1, 8 (2011), by reducing the need for “adjudication that has little to do with

the merits,” Barry Friedman, Under the Law of

8

Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211, 1225

(2004).

Simple rules “promote greater predictability,”

which also “is valuable to corporations making business and investment decisions,” Hertz, 559 U.S. at 94,

and “facilitate[s] efficient private bargaining in the

shadow of the law,” Jonathan Remy Nash, On the Efficient Deployment of Rules and Standards to Define

Federal Jurisdiction, 65 Vand. L. Rev. 509, 522 (2012);

see also William Grayson Lambert, The Necessary

Narrowing of General Personal Jurisdiction, 100

Marq. L. Rev. 375, 415 (2016) (clear and predictable

rules “allow[] individuals and businesses to order their

affairs and have rational expectations about where potential disputes could be resolved”).

On the other hand, complex tests governing jurisdiction, venue, and other threshold questions “complicate a case, eating 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, 559

U.S. at 94; see also Navarro Sav. Ass’n v. Lee, 446 U.S.

458, 464 n.13 (1980) (in discussing related question of

jurisdiction, emphasizing that “[i]t is of first importance to have a definition * * * [that] will not invite

extensive threshold litigation * * * over whether the

case is in the right court,” which “is essentially a waste

of time and resources”). Complex and unclear rules

“produce appeals and reversals, [and] encourage

gamesmanship.” Hertz, 559 U.S. at 94; see also Dodson, supra, at 8 (“[W]hen the court does resolve a jurisdictional issue under clear doctrine, that decision is

likely to be accurate, causing fewer appeals and fewer

9

reversals.”). The resources spent litigating such questions “could otherwise be used to expand business, create jobs, and develop new products”; in many contexts,

those costs may instead be “passed on to consumers in

the form of higher prices.” Lisa Litwiller, Why Amendments to Rule 23 Are Not Enough: A Case for the Federalization of Class Actions, 7 Chap. L. Rev. 201, 202

(2004).

In cases such as this one involving challenges to

federal agency action, uncertainty over proper venue

can spawn unnecessary (and often fruitless) litigation

in multiple respects. For instance, although parties

may raise objections to venue in preliminary motions,

appellate courts regularly carry venue questions with

the case, deferring their resolution to the merits panel.

See, e.g., Order, Calumet Shreveport Refin., L.L.C. v.

EPA, No. 22-60266, Doc. No. 120 (5th Cir. Oct. 21,

2022); Order, Hunt Ref. Co. v. EPA, No. 22-11617, Doc.

No. 25 (11th Cir. Aug. 31, 2022). As a result, parties

must devote considerable time and resources to fully

briefing the merits of a case that may ultimately be

transferred or dismissed for improper venue, leading

to duplication of effort and re-briefing in the new forum. E.g., Hunt Ref. Co. v. EPA, 90 F.4th 1107, 1113

(11th Cir. 2024). And even where venue is retained,

the assigned court is forced to dedicate substantial energy to addressing venue issues. See Kentucky v. EPA,

No. 23-3216, 2024 WL 5001991 (6th Cir. Dec. 6, 2024)

(devoting roughly 15 pages of 41-page opinion to Section 307(b)(1) venue issue).

Additionally, to hedge against the risk that a petition for review in one court might be dismissed on

venue grounds, parties often “protectively” file cases in

10

multiple venues, leading to additional expenditures of

resources by the courts and parties. See, e.g., Hunt, 90

F.4th at 1113 (in case where the petitioner had filed

petitions for review in both the Eleventh and D.C. Circuits of EPA denial of small refinery exemption, dismissing on basis that venue was proper in the D.C.

Circuit); Texas v. EPA, 829 F.3d 405, 416 n.12 (5th Cir.

2016) (similar, for EPA disapproval of state implementation plan); Dalton Trucking, Inc. v. EPA, 808 F.3d

875, 878 (D.C. Cir. 2015) (similar); Chevron U.S.A. Inc.

v. EPA, 45 F.4th 380, 384, 388 (D.C. Cir. 2022) (similar); Sierra Club v. EPA, 926 F.3d 844, 847 (D.C. Cir.

2019) (similar). This Court encountered such a practice in National Association of Manufacturers v. Department of Defense, which addressed and resolved

confusion over whether a particular EPA decision fell

within a statutorily enumerated list of actions that

must be reviewed in federal courts of appeals, rather

than district courts. 583 U.S. 109, 114 (2018). Due to

uncertainty regarding this question, numerous parties

had “file[d] ‘protective’ petitions for review in various

Courts of Appeals to preserve their challenges in the

event that their District Court lawsuits were dismissed for lack of jurisdiction.” Id. at 119. Divergent

jurisdictional decisions ensued: one court of appeals

exercised jurisdiction to stay EPA’s rule, while a district court held that it had jurisdiction to review the

rule, and other district courts dismissed for lack of jurisdiction. Ibid.

While parties and courts work to resolve confusion

as to venue questions, the ultimate resolution of the

underlying merits is further delayed, with negative

practical consequences for regulators, regulated

11

entities, and other stakeholders. For example, in the

Fourth Circuit and Eleventh Circuit litigation involving EPA’s disapprovals of West Virginia’s and Alabama’s plans to address “good neighbor” obligations

arising out of the most recent ozone air quality standards, the courts have postponed deciding the cases on

the merits pending this Court’s resolution of the venue

question in cases 23-1067 and 23-1068. Order, Alabama v. EPA, No. 23-11196, Doc. No. 56 (11th Cir. Oct.

24, 2024); Order, West Virginia v. EPA, No. 23-1418,

Doc. No. 126 (4th Cir. Oct. 21, 2024). In parallel cases

in the Fifth and Eighth Circuits, the courts likewise

have not yet disposed of petitions for review on the

merits, despite having acted on stay motions for those

disapprovals more than 18 months ago. See Order, Arkansas v. EPA, No. 23-1320, Doc. No. 5280996

(8th Cir. May 25, 2023); Texas v. EPA, No. 23-60069,

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

All of these inefficiencies add up to very real costs

for litigants and the courts. The resultant delays are

hard to square with Congress’s intention to expedite

resolution of the challenges by allowing direct review

in the courts of appeals. See Virginia v. United States,

74 F.3d 517, 525 (4th Cir. 1996) (direct appellate review creates a streamlined process for “prompt and

conclusive” judicial review of agency actions); accord

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985) (direct appellate review of agency decisions

avoids “duplication of the identical task in the district

court and in the court of appeals”). And regulated parties will incur higher transition and compliance costs,

and all stakeholders will experience extended periods

12

of uncertainty while EPA’s actions remain under review.

These negative consequences can be mitigated,

and clarity and predictability improved, by adopting

an interpretation of the Clean Air Act’s venue rules

that adheres faithfully to the statutory text. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at xxix (2012) (interpretive

approach grounded in the text will typically “provide

greater certainty in the law, and hence greater predictability”). That precept is especially true with respect to the interpretation of Section 307(b)(1), where

Congress crafted a reticulated and balanced statutory

scheme that channels certain kinds of cases to the D.C.

Circuit and others to the appropriate regional circuits.

II.

This Court Should Interpret Section

307(b)(1) of the Clean Air Act in a Manner

that Provides Clear, Predictable, and

Administrable Principles for Determining

Venue.

Section 307(b)(1) provides a three-part structure

for determining which court of appeals must hear a petition for review of a final action by EPA:

•

The first sentence of Section 307(b)(1) states

that a petition for review of any of an enumerated list of EPA actions, “or any other nationally applicable regulations promulgated, or final action taken, by [EPA] under this chapter[,]

may be filed only in” the U.S. Court of Appeals

for the D.C. Circuit.

•

The second sentence provides that a petition for

review of any of another enumerated list of EPA

13

actions “or any other final action * * * which is

locally or regionally applicable may be filed

only in” the U.S. Court of Appeals “for the appropriate circuit.”

•

The third sentence creates a limited exception

to the second, stating that an action referenced

in the second sentence is reviewable only in the

D.C. Circuit “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.”

42 U.S.C. § 7607(b)(1) (emphases added).

Three principles from this text provide a helpful

guide for understanding its application in cases like

this one.

1. First, decisions about whether a particular

EPA action is “nationally applicable,” “locally or regionally applicable,” or “based on a determination of

nationwide scope or effect” should be grounded in the

substance of the relevant actions EPA is taking. This

interpretation aligns with, and follows from, the detailed statutory enumerations of actions reviewable in

particular circuits that Congress included here.

The references to specific categories of agency actions in Section 307(b)(1) focus on the substantive nature of, and legal authority underlying, those actions,

as indicated by the extensive statutory cross-references to other substantive provisions of the Clean Air

Act authorizing EPA to act. For example, the actions

that are to be reviewed exclusively by the D.C. Circuit

include those that promulgate “any national * * *

14

ambient air quality standard [NAAQS],” “any emission standard” for hazardous air pollutants under 42

U.S.C. § 7412, and “any standard of performance” for

stationary sources of pollutants under 42 U.S.C.

§ 7411. See 42 U.S.C. § 7607(b)(1). Actions presumptively reviewable in the appropriate regional circuit,

by contrast, include “approving or promulgating any

[state] implementation plan” under 42 U.S.C. § 7410,

any order granting a waiver of performance requirements for a specific emissions source (“with the consent of the Governor of the State in which the source

is to be located”) under 42 U.S.C. § 7411(j), and any

order imposing a noncompliance penalty for a specific

emissions source under 42 U.S.C. § 7420. 42 U.S.C.

§ 7607(b)(1).

The Court can thus infer that, where the statute

subsequently refers to “any other nationally applicable

* * * final action,” “any other final action * * * which is

locally or regionally applicable,” and “a determination

of nationwide scope or effect,” Congress was likewise

concerned with whether the substance of the agency’s

action has national, local, or regional applicability, or

whether the substance of the underlying determination has nationwide scope or effect. See Bissonnette v.

LePage Bakeries Park St., LLC, 601 U.S. 246, 252

(2024) (Under the ejusdem generis canon, “courts interpret a general or collective term at the end of a list

of specific items in light of any common attribute[s]

shared by the specific items.”) (quotation marks omitted). Under this textual and interpretative approach,

the appropriate regional circuit should review an EPA

action that makes determinations specific to a particular locality or region.

15

2. Second, and relatedly, venue selection should

not turn on purely formalistic distinctions or factors

that are otherwise disconnected from the substance of

the agency action in question, such as EPA’s decision

(or not) to “bundle” individual actions together for purposes of publication in the Federal Register. The enumeration of EPA actions in Section 307(b)(1), as discussed above, looks to the underlying substantive authority being exercised, not the form in which the

agency chooses to publish one or more of its actions.

Indeed, if Congress had wanted to peg reviewability to

the form in which EPA published its actions, it could

easily have done so.

By tying review to the substance of EPA’s action,

Congress also avoided opening the venue question to

the sort of manipulation that this Court has sought to

discourage. Hertz, 559 U.S. at 94. And it promoted

predictability and certainty for regulated parties, who

commonly undertake a great deal of decisionmaking

and preparatory work in advance of an EPA order—

whether in seeking authorizations, investing in future

compliance, or in making other strategic business

judgments—some of which may be affected by the expected venue in which a petition for review of the

agency’s action may be heard. See Hertz, 559 U.S. at

94; Nash, supra, at 522; Lambert, supra, at 415. If the

form in which EPA chooses to publish an agency action

prevails over the substance of the action in determining venue, the resulting uncertainty would hamper

regulated parties’ ability to engage in informed decisionmaking.

Indeed, if formalistic characteristics like the “bundling” of actions for publication were dispositive under

16

Section 307(b)(1), confusion as to the proper venue

could linger even after EPA issues a notice combining

various regionally applicable actions. Assuming for

the sake of argument that an EPA action becomes “national” in character merely because it has been published together with numerous other actions that collectively cover different areas of the country, “[w]ould

this logic reach an action that covered only California,

Maine, and Alabama because they fall in different

parts of the country? If not, how many more States

are needed?” Kentucky, 2024 WL 5001991, at *8.

Channeling cases to the D.C. Circuit for reasons

of form rather than substance would pose particular

problems whenever the agency concurrently issues a

large number of actions that are each locally focused

and fact-intensive. The administrative record for any

individual agency action can consist of many hundreds

or thousands of pages. But where EPA’s decision in

reality consists of a series of distinct actions, each resting on individualized, fact-bound analysis focused on a

particular state or region, the aggregation of all those

actions into a single review proceeding before a single

court could easily result in an excessively large record

and a need for briefs covering a panoply of complex issues specific to each of EPA’s actions. Forcing such

cases to the D.C. Circuit could place significant strain

on judicial resources, as well as deprive the parties of

a full opportunity to argue the complex, locality-specific issues that would be more fully vetted in a proceeding in a regional circuit devoted to those issues

alone—as Congress intended.

3. Third, meaningful effect must be given to each

of the separate provisions in Section 307(b)(1)—

17

including the first, second, and third sentences. After

all, it is a “cardinal principle of interpretation that

courts must give effect, if possible, to every clause and

word of a statute.” Liu v. SEC, 591 U.S. 71, 89 (2020).

In applying ordinary principles of statutory construction, this Court has long avoided interpretations that

would treat any aspect of Congress’s scheme as “meaningless” or having “no consequence.” Ibid.; Nielsen v.

Preap, 586 U.S. 392, 414 (2019).

Here, Congress divided responsibility for review of

EPA’s decisions under this scheme between the D.C.

Circuit and the regional circuits. This Court should

adopt a reading that respects the balance that Congress struck, and does not deprive one provision of the

statute of meaningful effect (e.g., the part enumerating cases to be heard “only” in the regional circuits)

through an overbroad interpretation of another provision (e.g., the part ensuring that certain actions based

on a determination of nationwide scope or effect are

reviewed “only” in the D.C. Circuit). The balance

struck by Congress accounts for a variety of considerations. For example, Congress presumably knew that

regional circuit courts are most likely to be familiar

with and well-informed regarding legal and factual issues that affect local and regional interests. These can

include principles of state law that often arise in cooperative federalism regimes such as the Clean Air Act,

and the mix of legal, economic, social, and other practical considerations affecting major regulatory actions.

Cf. Texas v. EPA, 829 F.3d at 424 (asserting venue

over challenges to EPA’s disapproval of Texas’s and

Oklahoma’s plans for implementing air visibility

standards); Texas v. EPA, 706 F. App’x 159 (5th Cir.

18

2017) (same, for EPA’s designation of three areas in

Texas as not attaining revised air quality standards

for sulfur dioxide). And channeling regionally focused

EPA actions to the regional circuits avoids disconnecting litigation from the areas where the effects of the

agency’s action are most acutely and directly felt. So

too does siting cases in the regional circuits avoid burdening litigants with the higher travel and logistical

costs associated with litigating challenges in D.C. And

it avoids potential optical concerns that an agency may

enjoy a “hometown advantage” in defending its decisions in Washington, D.C.

By contrast, siting review of truly nationally applicable regulations, and certain determinations of nationwide scope or effect, in the D.C. Circuit avoids the

prospect of conflicting decisions from multiple circuits

over the same agency actions. Multiple petitions filed

in the D.C. Circuit can simply be consolidated, allowing for more efficient review for all—the government,

private litigants, and the courts.

In sum, Congress contemplated that both the D.C.

Circuit and regional circuits would have a meaningful

role. This is not a statute, like some, that centralizes

all review in the D.C. Circuit,2 or that vests regional

circuits with exclusive and irrebuttable jurisdiction

over an entire category of cases. 3 None of the sentences in Section 307(b)(1)’s venue provisions should

be interpreted to undermine Congress’s choices in

2 Cf., e.g., 42 U.S.C. § 6976(a)(1) (Resource Conservation and

Recovery Act); 42 U.S.C. § 9613(a) (Comprehensive Environmental Response, Compensation, and Liability Act).

3 Cf. 15 U.S.C. § 717r(d)(1) (Natural Gas Act).

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assigning venue for judicial review of different kinds

of EPA actions.

III. As Applied in This Case, These Principles

Support Adopting an Interpretation that

Gives Real and Substantial Effect to the

Entire Text of Section 307(b)(1)’s Venue

Provisions.

Although the Chamber takes no position on the

Court’s ultimate judgment in this case, the principles

articulated above provide some important guideposts

in resolving the specific venue questions presented

here. This case concerns EPA’s denial of petitions

from a number of small oil refineries seeking exemptions from the requirements of the agency’s Renewable

Fuel Standards program. Pet. I; Pet. App. 48a, 193a.

Among the various arguments advanced in this

case, some are difficult to square with the interpretative principles outlined above. In particular, the government argues that its actions were nationally applicable, implicating the first sentence of 307(b)(1), because EPA published two notices that, in aggregate,

collectively disapproved 105 exemption petitions from

refineries located in multiple judicial circuits across

the country. Gov’t Br. 19-24 (challenged denial notices

“resolved the exemption petitions of more than 30

small refineries located in multiple judicial circuits

across the country”); accord Pet. App. 48a, 193a. EPA

also argues that its denials were based on determinations of nationwide scope and effect, implicating the

exception in the third sentence, because EPA relied on

“statutory interpretation and economic analysis” that

apply “uniformly to small refineries across the country” and those principles can be understood as one of

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the but-for causes of its action. Gov’t Br. 30-31, 34-35.

But as discussed above, EPA’s bundling argument is

difficult to reconcile with an interpretative approach

that focuses on the substance and underlying statutory

authority of EPA’s actions, rather than distinctions

based on administrative convenience or form. See supra § II.2.

EPA’s interpretation also risks depriving the second sentence of any real and meaningful effect,

thereby undermining interests of clarity and predictability. See Brohl, 575 U.S. at 11; Hertz, 559 U.S. at 94.

As the government has articulated its position, there

is no apparent constraint on EPA’s ability to bundle

multiple locally focused decisions into a single rule or

order for purposes of publication, as it did here. See

Gov’t Br. 26-27 (arguing that no provision of the Clean

Air Act “restricts EPA’s ability to consider petitions together and resolve common issues in a single action”).

In fact, EPA appears to believe that it could channel

even the types of actions expressly enumerated in the

second sentence of Section 307(b)(1) to the D.C. Circuit

by issuing multiple such actions together. So if the

“bundling” of individual actions transformed local actions into a single, national action, the agency would

effectively “have the choice” of which tribunal would

hear a case, and it could ensure that virtually none of

its actions were reviewed outside the D.C. Circuit. See

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

Similar concerns are implicated by an interpretation under which the third sentence of Section

307(b)(1) would be satisfied whenever the agency articulates or applies a justification or rationale with nationwide importance and that can be understood as

21

one among the (potentially many) but-for causes of an

agency action. To be sure, the sentence does not ask

whether the action “is exclusively based on” a determination of nationwide scope or effect; it says “is based

on.” But “is based on” does not mean “comprises” or

“involves,” either.

Requiring only but-for causation would risk neutering the second sentence of the venue provisions. In

most circumstances, the agency will rely, in some material respects, on a consistent, generally applicable

understanding of the statutes and rules governing its

administration of the Clean Air Act. See West Virginia

v. EPA, 90 F.4th 323, 329-330 (4th Cir. 2024) (“[I]f application of a national standard * * * were the controlling factor, there never could be a local or regional action as recognized by the Clean Air Act because every

action of the EPA purportedly applies a national

standard.”); Chevron, 45 F.4th at 387 (“[M]any locally

or regionally applicable actions may require interpretation of the Clean Air Act’s statutory terms, and that

kind of interpretive exercise alone does not transform

a locally applicable action into a nationally applicable

one. * * * [T]hat a challenged action ‘applies a broad

regulation to a specific context’ and ‘may set a precedent for future * * * proceedings’ does not make it nationally applicable.”). And if the requisite causal relationship is present whenever “judicial invalidation of

the relevant determination would provide a sufficient

basis for finding the final action [arbitrary],” Gov’t Br.

35, the theory of but-for causation would be troublingly broad. Cf. Consol. Edison Co. of N.Y. v. FERC,

823 F.2d 630, 641-642 (D.C. Cir. 1987) (remanding

where “agency ha[d] given multiple reasons for a new

22

policy, some of which are acceptable, some of which are

not”). Perhaps for this reason, the government’s brief

uses language suggesting that certain determinations

on which EPA relies for D.C. Circuit venue have a

tighter causal relationship to the specific actions under review than would be required by a but-for causation standard. See, e.g., Gov’t. Br. 16 (EPA’s determinations “were the core rationales” for EPA’s actions);

id. at 31 (quoting Texas v. EPA, 829 F.3d at 419, for

the propositions that the relevant determinations

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

be “[m]erely peripheral or extraneous”); id. at 35

(EPA’s “core determinations played a decisive role in

EPA’s denial actions” and “were essential to the validity of the challenged denial actions”).

The government also suggests that the word “determination” in the third sentence of Section 307(b)(1)

“suggests a resolution of an unsettled issue.” Gov’t Br.

41. So, the government reasons, the Court “may” discern whether EPA’s action was “based on” a determination of nationwide scope or effect by “consider[ing]

whether EPA announced the rule or policy at roughly

the same time as the challenged agency action itself”

and whether “circumstances suggest” that rule or policy is likely to be challenged in court. Id. at 41-42.

This principle could, in theory, provide a useful constraint on EPA’s unilateral ability to channel cases to

the D.C. Circuit under the third sentence of Section

307(b)(1). However, a standard that asks whether an

agency announced a particular rule or policy at

“roughly the same time” as the challenged EPA action

(Gov’t Br. 41) follows at best indirectly from the statutory text. Moreover, EPA’s limiting principle may

23

prove difficult to apply in practice, raising line-drawing problems about whether a given agency action relies on a sufficiently “new” determination of policy or

law, given the reality that agencies often build on, extend, or reaffirm prior understandings in applying

them to new contexts. Similarly, it will often be difficult for courts to determine at the outset of a case,

when venue is typically challenged, whether a particular rule or policy is “likely” to be litigated.

Regardless of which textual theory it ultimately

adopts, the Court should not embrace an interpretation of Section 307(b)(1) that would, as a practical matter, perpetuate confusion among regulated parties, effectively give the government unilateral discretion to

select venue, or neuter either the regional-review provision or the D.C. Circuit review provisions of the statute.

CONCLUSION

Whatever this Court’s ultimate judgment in this

case, it should adopt a clear interpretation of Section

307(b)(1), grounded firmly in the statutory text, that

promotes predictability and certainty in the selection

of venue.

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Respectfully submitted.

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

ERIC GROTEN

VINSON & ELKINS LLP

200 West 6th St.,

Suite 2500

Austin, TX 78701

GARRETT MEISMAN

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

Counsel for Amicus Curiae

DECEMBER 2024