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

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 FOR STATES OF NEW YORK, ARIZONA, COLORADO,

CONNECTICUT, DELAWARE, ILLINOIS, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA, NEW JERSEY,

OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT,

WASHINGTON, AND WISCONSIN; THE DISTRICT OF

COLUMBIA; HARRIS COUNTY, TEXAS; AND THE CITY OF

NEW YORK AS AMICI CURIAE IN SUPPORT OF PETITIONER

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ELIZABETH A. BRODY

Assistant Solicitor General

MORGAN A. COSTELLO

CLAIBORNE E. WALTHALL

Assistant Attorneys General

28 Liberty Street

New York, New York 10005

(212) 416-8016

barbara.underwood@ag.ny.gov

*Counsel of Record

(Counsel listing continues on signature pages.)

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TABLE OF CONTENTS

Page

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

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

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

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

1. The 1970 Clean Air Act ............................ 3

2. The 1977 amendments ............................. 5

B. Procedural Background .................................. 7

Summary of Argument ................................................. 10

Argument ....................................................................... 12

I.

Congress Chose to Centralize Review of

National Issues Under the Clean Air Act in

the D.C. Circuit. ................................................... 12

A. Congress Assigned Review of Actions

Spanning More Than One Circuit to the

D.C. Circuit. ................................................... 13

B. Congress Assigned Review of Actions

Supported by at Least One Nationwide

Determination to the D.C. Circuit. .............. 17

II. Amici’s Experience Demonstrates That

Disregarding Congress’s Enacted Policy of

Centralized Review Sows Chaos and Causes

Delay. .................................................................... 20

A. Amici’s Recent Experience Illustrates

How Improperly Applying the Venue

Provision Causes Chaos, Wastes

Resources, and Delays Relief........................ 20

ii

Page

B. Other Examples Show How Such Chaos

and Delay Could Spread If the Fifth

Circuit’s Approach Is Not Rejected. ............. 25

Conclusion ..................................................................... 30

iii

TABLE OF AUTHORITIES

Cases

Page(s)

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

705 F.3d 453 (D.C. Cir. 2013) ............................ 13-14

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

(10th Cir. 2011).................................................. 14, 25

Catawba Cnty. v. EPA, 571 F.3d 20 (D.C. Cir.

2009) ..........................................................................18

Corner Post, Inc. v. Board of Governors of Fed.

Rsrv. Sys., 603 U.S. 799 (2024) ...............................15

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

(6th Cir. 1975) ...........................................................13

Greene v. Doruff, 660 F.3d 975 (7th Cir. 2011) ............18

Hughes v. United States, 584 U.S. 675 (2018) .............18

In re Sealed Case, 722 F.3d 361 (D.C. Cir. 2013) ........18

Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich, LPA, 559 U.S. 573 (2010) ............................15

KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d

1351 (Fed. Cir. 2000) ................................................18

Kennecott Copper Corp. v. EPA, 462 F.2d 846

(D.C. Cir. 1972) ...........................................................3

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

492 (1st Cir. 1972) ......................................................4

Natural Res. Def. Council, Inc. v. EPA, 512 F.2d

1351 (D.C. Cir. 1975)................................................12

New York v. EPA, 133 F.3d 987 (7th Cir. 1998) ..........13

Niz-Chavez v. Garland, 593 U.S. 155 (2021) ...............18

iv

Cases

Page(s)

Renewable Fuels Ass’n v. EPA, 948 F.3d 1206

(10th Cir. 2020)...........................................................8

Rumsfeld v. Padilla, 542 U.S. 426 (2004) ....................15

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) ......18

Sierra Club v. EPA, 47 F.4th 738 (D.C. Cir. 2022) .....13

Sierra Club v. EPA, 955 F.3d 56 (D.C. Cir. 2020) .......12

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

666 (7th Cir. 2017) ............................. 14,16,22,25,27

Texas v. EPA, 706 F. App’x 159 (5th Cir. 2017)...........20

Texas v. EPA, 983 F.3d 826 (5th Cir. 2020) .................12

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

(5th Cir. Feb. 24, 2011) .................................... 13, 14

West Virginia Chamber of Com. v. Browner, 166

F.3d 336, 1998 WL 827315 (4th Cir. 1998) ............14

Laws

Session Laws (by year)

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

91-604, 84 Stat. 1676 .................................................3

Federal Energy Administration Act of 1974,

Pub. L. No. 93-275, 88 Stat. 96 ...............................16

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

95-95, 91 Stat. 685................................................. 5, 7

Safe Drinking Water Amendments of 1977, Pub.

L. No. 95-190, 91 Stat. 1393 ......................................7

Pub. L. No. 101-549, 104 Stat. 2399 (1990) ...................7

v

Laws

Page(s)

United States Code

5 U.S.C. § 594(1)...............................................................6

15 U.S.C. § 766(c) ...........................................................16

42 U.S.C.

§ 7545(o) ......................................................................8

§ 7607(b) ..................................................... 1, 8, 15, 17

Administrative Sources

Federal Register (by year)

National Primary and Secondary Ambient Air

Quality Standards, 36 Fed. Reg. 8186 (Apr.

30, 1971) ......................................................................4

Approval and Promulgation of Implementation

Plans, 37 Fed. Reg. 10842 (May 31, 1972) ...............4

Recommendations of the Administrative

Conference of the United States, 41 Fed. Reg.

56767 (Dec. 30, 1976) .................................................6

Air Quality Designations for the 2010 Sulfur

Dioxide National Ambient Air Quality

Standard, 81 Fed. Reg. 45039 (July 12, 2016) .......27

April 2022 Denial of Petitions for Small Refinery

Exemptions Under the Renewable Fuel

Standard Program, 87 Fed. Reg. 24300 (Apr.

25, 2022) .................................................................. 7-8

Notice of June 2022 Denial of Petitions for Small

Refinery Exemptions Under the Renewable

Fuel Standard Program, 87 Fed. Reg. 34873

(June 8, 2022) .............................................................7

vi

Administrative Sources

Page(s)

Federal Register (by year)

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) ................................21

Federal “Good Neighbor Plan” for the 2015 Ozone

National Ambient Air Quality Standards, 88

Fed. Reg. 36654 (June 5, 2023) ...............................22

Phasedown of Hydrofluorocarbons: Notice of 2025

Allowance Allocations for Production and Consumption of Regulated Substances Under the

American Innovation and Manufacturing Act

of 2020, 89 Fed. Reg. 84583 (Oct. 23, 2024) ..... 28-29

Environmental Protection Agency

Green Book National Area and County-Level

Multi-Pollutant Information – Nonattainment/Maintenance Status for Each County

by Year for All Criteria Pollutants (Data

current as of Nov. 30, 2024)

Connecticut, https://www3.epa.gov/airquality/

greenbook/anayo_ct.html .........................................26

Illinois, https://www3.epa.gov/airquality/

greenbook/anayo_il.html ..........................................26

Maryland, https://www3.epa.gov/airquality/

greenbook/anayo_md.html .......................................26

Missouri, https://www3.epa.gov/airquality/

greenbook/anayo_mo.html .......................................26

New Jersey, https://www3.epa.gov/airquality/

greenbook/anayo_nj.html .........................................26

vii

Administrative Sources

Page(s)

Environmental Protection Agency

Green Book National Area and County-Level MultiPollutant Information (cont’d)

New York, https://www3.epa.gov/airquality/

greenbook/anayo_ny.html ........................................26

Ohio, https://www3.epa.gov/airquality/

greenbook/anayo_oh.html ........................................28

Virginia, https://www3.epa.gov/airquality/

greenbook/anayo_va.html ........................................26

Miscellaneous Authorities

Admininstrative Conf. of the United States,

Recommendation 76-4: Judicial Review Under

the Clean Air Act and Federal Water Pollution

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

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

the Comm. on Env’t & Pub. Works, 95th Cong.,

1st Sess. pt. 3 (1977)...................................................6

David P. Currie, Judicial Review Under Federal

Pollution Laws, 62 Iowa L. Rev. 1221 (1977)....... 3-4

H.R. Rep. No. 95-294 (1977) ........................................ 6-7

Maeve P. Carey, Cong. Rsch. Serv., The Federal

Rulemaking Process: An Overview (2013) ...............6

S. Rep. No. 91-1196 (1970) ....................................... 3, 14

INTERESTS OF AMICI CURIAE

This case concerns the proper interpretation of the

Clean Air Act’s venue provision, which states that the

D.C. Circuit has exclusive jurisdiction to review challenges to “nationally applicable” actions that the U.S.

Environmental Protection Agency (EPA) undertakes

pursuant to the Act. 42 U.S.C. § 7607(b)(1). The venue

provision further provides that the D.C. Circuit also has

exclusive jurisdiction to review challenges to “locally or

regionally applicable” EPA actions under the Act when

they are “based on a determination of nationwide scope

or effect,” and when EPA “finds and publishes that such

action is based on such a determination.” Id.

Here, the Fifth Circuit declined to transfer to the

D.C. Circuit petitions for review that challenged two

final EPA actions denying requests by thirty-six small

fuel refineries for exemptions under the Act’s Renewable

Fuel Standards program. Every other regional circuit

that received petitions challenging the same EPA denial

actions transferred the petitions to the D.C. Circuit after

determining that the actions were either nationally

applicable or based on a determination of nationwide

scope or effect. In rejecting that view, the Fifth Circuit

reasoned that the venue provision permitted each small

refinery to challenge its own individual denial in its

home circuit. Pet. App. 15a.

Amici curiae are the States of New York, Arizona,

Colorado, Connecticut, Delaware, Illinois, Maryland,

Massachusetts, Michigan, Minnesota, New Jersey,

Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin; the District of Columbia; Harris

County, Texas; and the City of New York. As States and

local governments, Amici work within the Act’s cooperative federalism structure to carry out the Act’s nation-

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wide public health and environmental protection goals.

Among the many provisions of the Act that are especially

important to Amici are those that address interstate pollution, which causes substantial harms to Amici’s residents, industry, and environment. Amici also frequently

participate in litigation about EPA actions under the

Act, whether as petitioners challenging such actions,

intervenors defending such actions, or as amici curiae.

Amici thus have strong interests in ensuring that

the Act’s venue provision is properly applied to further

Congress’s clear intent to centralize judicial review of

EPA actions concerning national issues in the D.C.

Circuit. The Act’s direction that adjudication of national

issues occur solely in the D.C. Circuit facilitates swift

resolution of disputes and promotes the uniform application of the Act. By contrast, as Amici’s experience

shows, allowing many different regional circuit courts

to each address the same national issue under the Act

through separate and often duplicative litigation can

cause chaos and extensive delay in implementing the

Act’s requirements, many of which have mandatory,

expeditious deadlines for compliance. Congress rejected

that approach twice, when it enacted and later amended

the venue provision.

The Fifth Circuit’s erroneous decision below

contravenes Congress’s clear intent, evident in the venue

provision’s text, structure, and history. And the Fifth

Circuit’s approach needlessly complicates the issue of

venue, which should be easily resolvable at the outset of

litigation. Otherwise, as Amici’s experience demonstrates, the parties and courts will waste time and

resources on protracted litigation about the proper

venue, or on the merits of a case that turns out to be

filed in an improper venue. The Fifth Circuit’s decision

should be reversed.

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STATEMENT

A. Statutory Background

1. The 1970 Clean Air Act

Congress enacted the first version of the Clean Air

Act’s venue provision in 1970. Congress recognized that

many of EPA’s actions under the Act—including actions

establishing national ambient air quality standards,

national emissions standards for hazardous air pollutants, and several other types of standards—would be

“national in scope and require even and consistent

national application,” S. Rep. No. 91-1196, at 41 (1970).

Accordingly, Congress specified in the venue provision

that challenges to such actions “may be filed only in the

United States Court of Appeals for the District of Columbia.” Clean Air Act Amendments of 1970, Pub. L. No.

91-604, sec. 12(a), § 307(b), 84 Stat. 1676, 1707-08.

Funneling review of national actions directly to a single

court of appeals reflected Congress’s “significant[]

concern[] with expedition” in achieving clean air by the

Act’s deadlines. See Kennecott Copper Corp. v. EPA, 462

F.2d 846, 849 (D.C. Cir. 1972).

At the same time, because the plans that States

would craft to meet the national standards (“state implementation plans” or “SIPs”) would “run only to one air

quality control region,” S. Rep. No. 91-1196, supra, at

41, Congress directed SIP approvals to be reviewed “in

the United States Court of Appeals for the appropriate

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

at 1707-08.

As the venue provision was implemented, however,

it became clear that “not every question respecting [a

state] implementation plan [was] of purely local significance.” David P. Currie, Judicial Review Under Federal

4

Pollution Laws, 62 Iowa L. Rev. 1221, 1263 (1977). In

1971, for example, EPA issued primary national air

quality standards for several types of transportationrelated pollutants. See National Primary and Secondary Ambient Air Quality Standards, 36 Fed. Reg. 8186,

8187 (Apr. 30, 1971). All fifty States, the District of

Columbia, Puerto Rico, the Virgin Islands, Guam, and

American Samoa each submitted implementation

plans. See Approval and Promulgation of Implementation Plans, 37 Fed. Reg. 10842, 10842 (May 31, 1972).

EPA approved each plan and, at the same time, granted

uniform, two-year extensions of the deadline for each

State and territory to achieve the standards, among

other things. Id. at 10842, 10845; see Natural Res. Def.

Council, Inc. (NRDC) v. EPA, 465 F.2d 492, 493 (1st Cir.

1972).

Challengers sought to obtain judicial review of the

uniform, two-year extension and other policy positions

that applied nationally and uniformly to the plans. See

NRDC, 465 F.2d at 493. Because the venue provision at

that time required state plan approvals to be challenged

in the appropriate regional circuit, challengers filed petitions in all eleven circuits. They then moved to consolidate the scattered challenges in the D.C. Circuit. Five

courts of appeals transferred the petitions to the D.C.

Circuit, and five stayed proceedings pending the outcome

of the D.C. Circuit proceedings. See Currie, supra, at

1263. In transferring challenges to the D.C. Circuit, the

First Circuit explained that “litigation in several circuits, with possible inconsistent and delayed results on

the merits, can only serve to frustrate the strong

Congressional interest in improving the environment.”

NRDC, 465 F.2d at 495.

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2. The 1977 amendments

In 1977, Congress amended the Act’s venue

provision. Congress amended the first sentence of the

provision to specify that, in addition to the seven types

of national actions enumerated in the statute, “other

nationally applicable regulations promulgated, or final

action taken, by the Administrator under this Act” are

reviewable solely in the D.C. Circuit. Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, § 305(c)(1), 91

Stat. 685, 776. Congress amended the second sentence

to specify that, in addition to state plan approvals, “any

other final action of the Administrator under this Act

which is locally or regionally applicable” is reviewable

in the “appropriate regional circuit.” Id., § 305(c)(2), 91

Stat. at 776.

Congress further amended the venue provision to

address where challengers must seek review when, as

had occurred in NRDC, a presumptively local or regional

EPA action is based on determinations with nationwide

implications. Specifically, Congress added language to

the Act that gave the D.C. Circuit exclusive jurisdiction

over challenges to a locally or regionally applicable EPA

action “if such action is based on a determination of

nationwide scope or effect and if in taking such action

the Administrator finds and publishes that such action

is based on such a determination.” Id., § 305(c)(4), 91

Stat. at 776.

As part of the congressional hearings leading up to

the 1977 amendments’ enactment, the Administrative

Conference of the United States (ACUS) 1 submitted a

1 ACUS is an independent agency that studies and recommends

improvements in federal administrative procedure, among other

(continues on next page)

6

report and recommendation regarding the Act’s venue

and other judicial-review provisions. See ACUS, Recommendation 76-4: Judicial Review Under the Clean Air

Act and Federal Water Pollution Control Act (1976), in

Clean Air Act Amendments of 1977: Hr’g on S. 251,

S. 252 & S. 253 Before the S. Subcomm. on Env’t Pollution of the Comm. on Env’t & Pub. Works, 95th Cong.,

1st Sess. pt. 3, at 248-355 (1977). ACUS urged a policy

of decentralized review across multiple circuits, recommending that Congress amend the Act to specify that

EPA’s approvals of state implementation plans are

reviewable in regional circuits even when they are based

on national determinations. Id.

G. William Frick, a member of ACUS and general

counsel of EPA, disagreed and appended a separate

statement to the report. See Recommendations of the

Administrative Conference of the United States, 41 Fed.

Reg. 56767, 56768-69 (Dec. 30, 1976). Frick contended

that “where ‘national issues’ are involved” in state implementation plans, “they should be reviewed in the D.C.

Circuit.” Id. at 56768. Frick listed several benefits of

centralizing review in the D.C. Circuit, including:

promoting national uniformity on important issues;

leveraging the D.C. Circuit’s “obvious expertise” in

administrative law; and capitalizing on the D.C. Circuit’s

familiarity with the notoriously complex provisions of

the Clean Air Act. Id. at 56769.

The House committee that conducted the hearings

ultimately agreed with Frick’s view that national questions should be reviewed in the D.C. Circuit. See H.R.

Rep. No. 95-294, at 324 (1977) (noting committee’s

concurrence with “the comments, concerns, and recomthings. See 5 U.S.C. § 594(1); Maeve P. Carey, Cong. Rsch. Serv.,

The Federal Rulemaking Process: An Overview 7 n.26 (2013).

7

mendation” regarding venue in “the separate statement

of G. William Frick, which accompanied the Administrative Conference’s views”). Thus, the 1977 bill

contained the “based on a determination of nationwide

scope or effect” language. Id. The committee report

explained that this language means that when a local

or regional action is found by the EPA Administrator “to

be based on a determination of nationwide scope or

effect (including a determination which has scope or

effect beyond a single judicial circuit), then exclusive

venue for review [would be] in the U.S. Court of Appeals

for the District of Columbia.” Id. (emphasis added).

Congress passed the 1977 bill containing that language,

and President Richard M. Nixon signed it into law. See

Pub. L. No. 95-95, § 305(c)(4), 91 Stat. at 776. The venue

provision has not been structurally amended since. 2

B. Procedural Background

In 2022, EPA published two decisions denying the

requests of thirty-six small fuel refineries for exemptions under the Clean Air Act’s Renewable Fuel Standard (RFS) program. See April 2022 Denial of Petitions

for Small Refinery Exemptions Under the Renewable

Fuel Standard Program, 87 Fed. Reg. 24300 (Apr. 25,

2022) (“Apr. Denial”); Notice of June 2022 Denial of Petitions for Small Refinery Exemptions Under the Renewable Fuel Standard Program, 87 Fed. Reg. 34873 (June

8, 2022) (“June Denial”). Asserting “disproportionate

2 In a separate law passed in 1977, Congress added several

types of actions to the enumerated lists of “nationally applicable”

and “locally or regionally applicable” actions. See Safe Drinking

Water Amendments of 1977, Pub. L. No. 95-190, § 14(a)(79)-(80),

91 Stat. 1393, 1404. In 1990, Congress made a conforming amendment to a statutory cross-reference. See Pub. L. No. 101-549,

§ 302(g), 104 Stat. 2399, 2574 (1990).

8

economic hardship,” the refineries sought an exemption

from the Act’s requirement to blend certain quantities

of ethanol or other renewable fuels into their products.

See, e.g., Apr. Denial, 87 Fed. Reg. at 24300; see also 42

U.S.C. § 7545(o)(9)(B).

In the published final actions, EPA explained that

the April and June Denials were each “nationally applicable” and “based on a determination of nationwide scope

or effect.” E.g., Apr. Denial, 87 Fed. Reg. at 24301. The

actions were “nationally applicable” because they denied

exemptions “for over 30 small refineries across the

country and applie[d] to small refineries located within

18 states in 7 of the 10 EPA regions and in 8 different

Federal judicial circuits.” Id. In addition, the actions

were “based on a determination of nationwide scope or

effect” because they were based on two uniform principles. First, the actions were “based on EPA’s revised

interpretation of the relevant [statutory] provisions,”

prompted by a recent circuit court decision holding that

the plain language of the statute barred EPA from granting economic-hardship exemptions based on circumstances unrelated to compliance with the RFS program.

Id.; see Renewable Fuels Ass’n v. EPA, 948 F.3d 1206

(10th Cir. 2020), rev’d on other grounds sub nom. HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels

Ass’n, 594 U.S. 382 (2021). Second, the actions were

based on the principle that all small refineries pass the

cost of program compliance to consumers—a determination that was “applicable to all small refineries no matter

the location or market in which they operate.” E.g., Apr.

Denial, 87 Fed. Reg. at 24301.

Various small refineries located in different States

petitioned for review in the Third, Fifth, Seventh, Ninth,

Tenth, and Eleventh Circuits. Applying the Act’s venue

provision, 42 U.S.C. § 7607(b)(1), each circuit except the

9

Fifth Circuit dismissed or transferred the petitions to the

D.C. Circuit. See Pet. for Writ of Cert. 9-10 & nn.3-4,

EPA v. Calumet Shreveport Refin. Co., No. 23-1229 (May

20, 2024) (listing orders).

The Fifth Circuit declined to transfer the petitions

filed in that court to the D.C. Circuit, reasoning that the

Act’s venue provision allows each individual small refinery to challenge its own denial in its home circuit. Pet.

App. 15a. The Fifth Circuit concluded that the denial

actions were not nationally applicable because, in its

view, the phrase “nationally applicable” meant having

“legal effect” in every State nationwide. Pet. App. 11a

(emphasis omitted). The Fifth Circuit also concluded

that the actions were not “based on a determination of

nationwide scope or effect” (Pet. App. 13a) because, in

its view, the agency’s revised legal interpretation and

cost passthrough principles were not on their own “a

sufficient basis to adjudicate” the exemption petitions

(Pet. App. 15a).

Judge Higginbotham dissented, explaining that the

denial actions were plainly nationally applicable because

they applied across eighteen States in eight judicial

circuits. Pet. App. 38a; see Pet. App. 35a-43a. The dissent

also would have concluded that, even if the actions were

locally or regionally applicable, they were based on a

determination of nationwide scope and effect and thus

reviewable solely in the D.C. Circuit. This Court granted

EPA’s petition for certiorari. 3

3 In the same order, this Court also granted certiorari petitions

from another case interpreting the same statutory venue provision.

See Oklahoma v. EPA, No. 23-1067; PacifiCorp v. EPA, No. 231068.

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SUMMARY OF ARGUMENT

I. Congress chose to centralize review of national

issues under the Clean Air Act in a single court—the

D.C. Circuit. Congress’s considered policy judgment

ensures uniform interpretations and applications of the

Act; avoids conflicting rulings; and furthers the legislative goal of expeditiously achieving clean air across the

nation.

A. The venue provision requires the D.C. Circuit to

review actions that are “nationally applicable,” i.e.,

spanning more than one judicial circuit. For decades,

courts have construed “nationally applicable” in this

straightforward, geographical manner—with predictable, consistent results across circuits. Actions involving one State or multiple States within a particular

judicial circuit go to the appropriate numbered circuit,

whereas actions involving States in more than one circuit go to the D.C. Circuit. The Fifth Circuit’s contrary

conclusion that a rule is “nationally applicable” only if

it has or is likely to have prospective legal effect in all

States, drastically departs from this judicial consensus

and is untethered to the venue provision’s text, structure, and history. Moreover, the Fifth Circuit’s rule

would require difficult predictive judgments to resolve

venue, an issue that should be easily resolvable at the

outset of litigation to avoid wasting judicial resources

and delaying relief.

B. The venue provision separately provides that the

D.C. Circuit has exclusive jurisdiction to review actions

that are “based on a determination of nationwide scope

or effect,” and that the EPA expressly finds are based

on such a determination. The plain text of this provision,

as well as statutory context, make clear that it requires

only a single, but-for determination of nationwide scope

11

or effect to trigger exclusive venue in the D.C. Circuit.

The Fifth Circuit erroneously interpreted this provision

to mean that an action is “based on” a determination of

nationwide scope or effect only if the nationwide determination is “sufficient,” on its own, to support EPA’s

final decision. But that interpretation contravenes the

text and structure of the Act, and presents practical

problems because complex administrative actions often

have many but-for causes. The Fifth Circuit’s approach

would force courts to weigh the relative importance of

various but-for causes behind complex administrative

actions at the outset of litigation, before merits briefing.

II. The recent experience of some Amici vividly

demonstrates that departing from Congress’s judgment

to centralize review of national issues under the Act in

the D.C. Circuit, as the Fifth Circuit’s rule would do,

would sow chaos and delay. Specifically, two recent EPA

actions involving interstate pollution each produced

parallel litigation in seven regional circuits, about the

same core suite of nationwide legal issues. Each circuit

litigation involved time-consuming motion practice

about venue, only to have many of the courts defer

consideration of the venue issue to merits panels or issue

unpublished orders on venue that remained reviewable

by merits panels. And failure to consolidate these challenges in the D.C. Circuit prompted further confusion

upon promulgation of a related rule, with a single entity

filing as many as nine separate petitions in five circuits

purporting to challenge different pieces of the same rule.

Congress plainly did not intend such chaos. Indeed,

the history of the Act shows that Congress amended the

venue provision precisely to avoid simultaneous, duplicative review of the same action. And allowing the Fifth

Circuit’s ruling to stand would likely spawn wasteful

litigation, confusion, and undue delay in many other

12

challenges to EPA actions under the Act. For example,

the Fifth Circuit’s rule would significantly complicate

judicial review of EPA actions that designate geographical areas as in “attainment” or “nonattainment” with

national air quality standards because many of these

areas span multiple States and multiple judicial circuits. And applying the Fifth Circuit’s rule to EPA

actions that apportion credits of certain chemicals to

Amici States’ industries would likely trigger divergent

judicial decisions and potentially require serial recalculation and reapportionment of pools of allowances.

ARGUMENT

I.

CONGRESS CHOSE TO CENTRALIZE REVIEW OF

NATIONAL ISSUES UNDER THE CLEAN AIR ACT IN

THE D.C. CIRCUIT.

The Clean Air Act’s text, history, and context all

confirm that Congress chose to centralize review of

national issues under the Act in a single court—the D.C.

Circuit. Congress accomplished this goal by expressly

providing that the exclusive venue for review of actions

spanning more than one circuit is the D.C. Circuit.

Congress later reinforced this goal when it amended the

Act to expand the D.C. Circuit’s exclusive review to

include all EPA actions under the Act that are “based on

a determination of nationwide scope or effect.”

Congress’s centralization approach promotes

national uniformity in the interpretation and application

of the Act and avoids “a patchwork of regional interpretations of nationally applicable rules.” Sierra Club v.

EPA, 955 F.3d 56, 65 (D.C. Cir. 2020) (Wilkins, J.,

concurring); see also Texas v. EPA, 983 F.3d 826, 835 (5th

Cir. 2020); Natural Res. Def. Council, Inc. v. EPA, 512

F.2d 1351, 1356-57 (D.C. Cir. 1975). And centralization

13

speeds “effectuation of important national policies

underlying the Clean Air Act,” by ensuring that judicial

review can take place swiftly and authoritatively (of

course subject to certiorari review in this Court). Dayton

Power & Light Co. v. EPA, 520 F.2d 703, 708 (6th Cir.

1975).

The Fifth Circuit’s ruling below is untethered to the

venue provision’s text, structure, and history, each of

which reinforces Congress’s clear purpose to centralize

review of national issues in the D.C. Circuit. The Fifth

Circuit’s interpretation also poses difficult practical

problems that will likely result in wasted judicial

resources and prolonged litigation.

A. Congress Assigned Review of Actions

Spanning More Than One Circuit to

the D.C. Circuit.

Consistent with Congress’s intent to avoid

duplication and centralize review under the Act, many

courts (including the Fifth Circuit prior to the decision

below) have for decades interpreted the phrases “locally

or regionally applicable” and “nationally applicable”

using a straightforward, geographical approach. E.g.,

Texas v. EPA, No. 10-60961, 2011 WL 710598, at *5 (5th

Cir. Feb. 24, 2011). Under this longstanding approach,

when the regulated parties or entities are located in a

single State, or in multiple States within the same

judicial circuit, the action is “locally or regionally” applicable. See, e.g., Sierra Club v. EPA, 47 F.4th 738, 740

(D.C. Cir. 2022) (petition seeking review of action involving two areas in Texas was “locally” applicable); American Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453,

456 (D.C. Cir. 2013) (petition seeking review of California’s state plan approval was “locally” applicable); New

York v. EPA, 133 F.3d 987, 990 (7th Cir. 1998) (petition

14

seeking review of States abutting Lake Michigan was

“regional in a literal sense”).

By contrast, when the parties or entities regulated

by an EPA action under the Act are located in more than

one judicial circuit, the action is instead “nationally

applicable,” and challenges belong exclusively in the

D.C. Circuit. See, e.g., Southern Ill. Power Coop. v. EPA,

863 F.3d 666, 671 (7th Cir. 2017) (action involving

twenty-four States); ATK Launch Sys., Inc. v. EPA, 651

F.3d 1194, 1196 (10th Cir. 2011) (action involving thirtyone areas reaching “from coast to coast”); Texas, 2011

WL 710598, at *3 (action involving thirteen States); see

West Virginia Chamber of Com. v. Browner, 166 F.3d

336, 1998 WL 827315, at *5-6 (4th Cir. 1998) (table

case) (action involving twenty-two States and District of

Columbia); see also S. Rep. No. 91-1196, supra, at 41

(contrasting actions that require “national application”

with actions that “run only to one air quality control

region”).

This straightforward geographical approach is easy

to administer in practice and avoids “needless uncertainty into the determination of venue, where the need

for clear rules is especially acute.” See Southern Ill.

Power Coop., 863 F.3d at 673. Under the geographical

approach, a court assessing the threshold question of

venue “need look only to the face of the rulemaking” to

discern whether it applies in States located in more

than one judicial circuit. See American Rd. & Transp.

Builders Ass’n, 705 F.3d at 456. And the court need not

undertake a time-consuming analysis about whether

EPA has in fact announced a policy position in an adjudication, or whether such a policy is likely to have prospective, binding effect on entities not covered by the action.

15

In reaching a different result here, the Fifth Circuit

interpreted the venue provision in a way that undermines these important congressional goals and unnecessarily complicates what should be a straightforward

venue determination at the outset of a case. Specifically,

rather than decide that an action applying to entities

located in eighteen States in eight different circuits was

“nationally applicable,” the Fifth Circuit held that an

action is “nationally applicable” only if it has or is likely

to have binding “legal effect[s]” in “all States.” See Pet.

App. 11a.

As EPA and intervenor-respondents explain,

“applicable” does not mean “having legal effect,” and

“national” can sometimes mean “throughout the country.” See Br. for Pet’r at 21; Br. for Resp’ts Supporting

Pet’r. at 24. Moreover, words must be construed “in their

particular statutory context,” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 559 U.S. 573, 585

(2010). Here, context confirms that Congress chose to

send actions to a single court for review when they did

not fit neatly within judicial circuit boundaries. Under

the venue provision, all actions are either (i) “nationally

applicable” or (ii) “locally or regionally applicable.”

Locally or regionally applicable actions are reviewable

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

(emphasis added). The “use of the definite article,” in

turn, indicates that “there is generally only one proper”

circuit to which review of local or regional actions could

be directed. See Rumsfeld v. Padilla, 542 U.S. 426, 434

(2004); see also Corner Post, Inc. v. Board of Governors

of Fed. Rsrv. Sys., 603 U.S. 799, 817 (2024) (“the statute’s

use of the definite article ‘the’ takes precedence”). But

an action covering entities in more than one circuit cannot logically have only “one proper” (i.e., “the appropriate”) circuit, geographically, for review. See Padilla, 542

16

U.S. at 434. Accordingly, because all actions must be

either “nationally applicable” or “locally or regionally

applicable,” actions spanning more than one circuit

logically must belong to the first group, i.e., the “nationally applicable” group. See, e.g., Southern Ill. Power

Coop., 863 F.3d at 671 (action involving twenty-four

States “clearly falls in the first basket”).

Had Congress intended to condition review in the

D.C. Circuit on an action’s application to all fifty States,

it would have said so. And it would have provided the

textual commands required to identify the “one proper”

regional circuit in the many other cases where an EPA

action involves States across different circuits but not

all States. But, as described above, Congress did neither

of these things.

A similar statute provides a useful example. In the

Federal Energy Administration Act of 1974, Congress

created a similar, split scheme of centralized and

regional review of agency actions. Pub. L. No. 93-275,

§ 7(i)(2)(A), 88 Stat. 96, 102. That statute provides that

actions “of general and national applicability” must be

reviewed in the D.C. Circuit, but specifies that actions

“of general, but less than national, applicability” can be

reviewed only in the appropriate regional court of

appeals. 15 U.S.C. § 766(c) (emphasis added). The

statute then defines the “appropriate circuit” as the “the

circuit which contains the area or the greater part of the

area within which the rule, regulation, or order is to

have effect.” Id. (emphasis added). There is no such

language in the Clean Air Act; instead, the statute

unambiguously directs such actions to the D.C. Circuit.

17

B. Congress Assigned Review of Actions

Supported by at Least One Nationwide

Determination to the D.C. Circuit.

Congress later reaffirmed through a successive

amendment its chosen policy of centralized review. In

1977, Congress expanding the types of actions exclusively reviewable in the D.C. Circuit to include locally or

regionally applicable actions “based on a determination

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

supra at 5-7 (discussing history). The Fifth Circuit’s

erroneous interpretation of this prong of the venue provision improperly overrides Congress’s clear legislative

choice and establishes an overly complicated venue

inquiry that will be difficult to administer.

As the Fifth Circuit acknowledged (Pet. App. 12a14a), EPA expressly found that the actions were based

on the agency’s nationwide determinations that (i) the

RFS statute’s economic-hardship exemption does not

apply to circumstances unrelated to compliance with

the RFS program; and (ii) all small refineries pass the

cost of program compliance to consumers. But the Fifth

Circuit then concluded that the challenged actions were

not “based on” a determination of nationwide scope or

effect within the meaning of the venue provision because

neither determination, standing alone, provided the

agency “with a sufficient basis” to completely resolve

each refinery’s exemption application. Pet. App. 15a

(emphasis added). In other words, the Fifth Circuit

reasoned that the two uniform determinations were not

important enough to satisfy the venue provision’s “based

on” prong because “there is still a non-zero chance [EPA]

will grant small refinery petitions” based on other

considerations, such as “data and evidence” about particular refineries’ circumstances. See Pet. App. 14a-15a.

18

That interpretation—which assumes that an issue is

of nationwide scope or effect only if it is the most pivotal

determination in the action—is contrary to the venue

provision’s plain text. Congress did not use the phrase

“based solely on” or “based primarily on.” Instead,

Congress used the phrase “based on,” which means “a

relevant part of the analytic framework.” See Hughes v.

United States, 584 U.S. 675, 687 (2018) (quotation marks

omitted); id. at 686 (collecting dictionary definitions of

“base” and “basis”); In re Sealed Case, 722 F.3d 361

(D.C. Cir. 2013). “Based on” indicates a “but-for causal

relationship” that requires the determination to be (at

most) one “necessary condition” of the action. See Safeco

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

v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011) (Posner, J.)

(distinguishing between “necessary” and “sufficient”

conditions in formal logic). Put another way, the words

“based on” neither “compel the agency to rest its decisions solely on the specified factor nor indicate the extent

to which the agency may rely on additional factors.”

Catawba Cnty. v. EPA, 571 F.3d 20, 37 (D.C. Cir. 2009).

Congress’s understanding that agency actions are

frequently supported by more than one determination

is further confirmed by Congress’s use of the indefinite

article “a” (“a determination of nationwide scope or

effect”). When used in this manner, the indefinite article

“a” means “at least one.” See KCJ Corp. v. Kinetic

Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000); see

also Niz-Chavez v. Garland, 593 U.S. 155, 162 (2021)

(“Normally, indefinite articles (like ‘a’ or ‘an’) precede

countable nouns.”). The statute thus expressly contemplates that an EPA action may be based on one or more

“but-for” causal factors, see Safeco Ins. Co., 551 U.S. at

63, and that centralized review is available even if only

one such factor is of nationwide scope or effect.

19

The Fifth Circuit’s interpretation is also flatly

contrary to the history of the venue provision. Many

EPA actions under the Act are based on multiple determinations, some of nationwide scope or effect and some

of localized or regional scope or effect. Under the Fifth

Circuit’s reasoning, essentially all such actions could be

challenged in regional circuits so long as the circuit

concludes that the determination with nationwide scope

or effect is not the most important factor in EPA’s

decisionmaking. But that result is plainly the opposite

of what Congress intended when it amended the venue

provision in 1977. Difficulties that arose when ostensibly

local or regional actions were also based on a determination with national implications drove Congress to amend

the venue provision in 1977. At that time, EPA was

presented with two approaches for handling challenges

to such actions: one approach proposed to centralize

review in the D.C. Circuit, and the other proposed to

leave review in the regional circuits. See supra at 5-7.

Congress specifically chose the former and rejected the

latter. The Fifth Circuit’s decision here would improperly override Congress’s legislative policy choice, directing nearly all actions with a localized or regional impact

for review in regional circuits even when those actions

are plainly based on a determination of a nationwide

scope or effect.

The Fifth Circuit’s interpretation also needlessly

injects complexity into what should be a straightforward venue inquiry that is easily resolvable at the outset

of the litigation. Courts are well versed in identifying

whether a particular consideration is a “but-for” cause

of the agency’s action, and can easily conduct this

analysis based on the face of the action. By contrast, the

Fifth Circuit’s approach seemingly requires courts to

(i) identify all of the EPA determinations that are but-

20

for causes of the challenged action; (ii) compare the

relative importance of these varied determinations; and

(iii) discern whether a determination of nationwide scope

or effect is the most important relative to the others.

Such an analysis would be particularly difficult at the

outset of litigation—when venue issues should be

resolved. Indeed, the Fifth Circuit has encountered this

problem before in assessing whether a determination of

nationwide scope or effect is “core” to the action, and has

deferred venue issues to the merits stage where briefing

would “provide greater clarity.” See, e.g., Texas v. EPA,

706 F. App’x 159, 165 (5th Cir. 2017). But a venue rule

that requires the court and parties to wait until the

merits are adjudicated is essentially no venue rule at all.

II. AMICI’S EXPERIENCE DEMONSTRATES THAT

DISREGARDING CONGRESS’S ENACTED POLICY

OF CENTRALIZED REVIEW SOWS CHAOS AND

CAUSES DELAY.

Amici’s experience demonstrates that drastically

departing from Congress’s clear choice to centralize

review of national issues under the Act in the D.C.

Circuit, as the Fifth Circuit’s rule would do, sows chaos

and produces extensive delay in implementing the Act’s

critically important and time-sensitive protections.

That is plainly not what Congress intended.

A. Amici’s Recent Experience Illustrates How

Improperly Applying the Venue Provision

Causes Chaos, Wastes Resources, and Delays

Relief.

A recent example from EPA’s efforts to control

interstate ozone illustrates the chaos and delay that

result from improperly applying the Act’s venue provision.

21

In 2023, EPA published a single action disapproving twenty-one States’ implementation plans for

addressing interstate ozone pollution under the revised

2015 ozone standard. See Air Plan Disapprovals; Interstate Transport of Air Pollution for the 2015 8-Hour

Ozone National Ambient Air Quality Standards, 88 Fed.

Reg. 9336, 9380 (Feb. 13, 2023). In both the proposed

and final actions, EPA explained that the actions were

based on several determinations of nationwide scope or

effect. For example, EPA determined that a State’s

contribution to interstate ozone problems is significant

if it exceeds one percent of the national standard. EPA

also determined that participation in an existing emissions-reduction program associated with a prior ozone

standard would not satisfy a State’s pollution-mitigation

obligations under the new standard.

Various industry groups and States lodged dozens

of petitions for review challenging the 2023 disapproval

action in seven different regional circuit courts. Each

purported to challenge the same EPA action as applied

only to their respective States, yet each raised essentially the same legal issues. Each circuit received

motions to transfer the petitions to the D.C. Circuit—

much like what transpired in the NRDC litigation that

led Congress to amend the Act to give the D.C. Circuit

exclusive jurisdiction over local or regional rules that are

based on a determination of nationwide scope or effect

(see supra at 4-5). Each circuit also received motions to

stay the (identical) disapproval action as applied only to

the States in that circuit.

This initial motion practice took months: indeed,

merits briefing in one circuit did not begin until a year

after EPA’s action was published, in part because that

court held a separate oral argument on the venue question. And most orders disposing of the transfer motions

22

did not definitively resolve the issue. Three circuits

issued unpublished orders denying transfer, which did

not bind the merits panels and simply required the

parties to rebrief the issue in their merits papers and to

raise the same points at oral argument. And three circuits issued orders expressly referring the motions to

merits panels, which required the parties to brief the

merits before knowing whether that circuit considered

itself to be the proper venue to decide the merits.

Litigation about the same disapproval rule across

seven circuits also imposed a substantial burden on

many of the Amici States here, which receive disproportionate amounts of harmful ozone pollution from other

States. To protect their interests, these Amici States

needed to file multiple amicus briefs, in opposition to

stay motions and on the merits. Had all challenges to

the same disapproval rule been lodged in the D.C.

Circuit, Amici could have filed a single amicus brief at

each stage of the litigation, responding to the common

suite of legal issues that nearly every petitioner challenging the disapproval rule raised in each circuit. At

present, duplicative challenges to the same 2023 disapproval rule continue in six circuits, “utterly defeating the

statute’s obvious aim of centralizing judicial review of

national rules” in the D.C. Circuit. See Southern Ill.

Power Coop., 863 F.3d at 673.

The delay and chaos that resulted from the

challenges to the 2023 disapproval rule did not end

there. Many of the same petitioner States and industry

groups followed a similar approach after EPA finalized

a related action promulgating replacement federal plans

for twenty-three States. See Federal “Good Neighbor

Plan” for the 2015 Ozone National Ambient Air Quality

Standards, 88 Fed. Reg. 36654 (June 5, 2023). Again,

dozens of petitioners filed separate petitions across

23

seven regional circuits, this time all challenging the

same federal-plan rule.

This time, however, the proliferation of challenges to

the same action grew worse, as the following examples

illustrate. A single petitioner filed nine different petitions—which purported to challenge the same rule as

applied to nine different States—across five different circuits. See Pets., Energy Transfer LP v. EPA, No. 2360300 (5th Cir. Aug. 7, 2023), ECF Nos. 140, 142, 145;

Pet., Energy Transfer LP v. EPA, No. 23-3641 (6th Cir.

Aug. 3, 2023), ECF No. 1; Pet., Energy Transfer LP v.

EPA, No. 23-2510 (7th Cir. Aug. 3, 2023), ECF No. 1-1;

Pet., Energy Transfer LP v. EPA, No. 23-2511 (7th Cir.

Aug. 3, 2023), ECF No. 1-1; Pet., Energy Transfer LP v.

EPA, No. 23-2773 (8th Cir. Aug. 3, 2023), Doc.

#5302800; Pet., Energy Transfer LP v. EPA, No. 232774 (8th Cir. Aug. 3, 2023), Doc. #5302805; Pet.,

Energy Transfer LP v. EPA, No. 23-9569 (10th Cir. July

27, 2023), ECF No. 101. An industry petitioner from

Nevada filed its petition for review in the Ninth Circuit,

see Pet., Nevada Cement Co. v. EPA, No. 23-1098 (9th

Cir. June 5, 2023), ECF No. 1.1, while the State of

Nevada filed its petition for review in the D.C. Circuit,

see Pet., Nevada v. EPA, No. 23-1209 (D.C. Cir. Aug. 4,

2023), Doc. #2011161. These dueling petitions potentially set up an intercircuit conflict over the same rule’s

application to a single State.

Moreover, a different petitioner filed petitions for

review of the same rule in both the Sixth Circuit and the

D.C. Circuit. See Pet., Buckeye Power, Inc., et al. v. EPA,

No. 23-3647 (6th Cir. Aug. 4, 2023) (petition including

Ohio Valley Electric Corp.); Pet., Associated Elec. Coop.

et al. v. EPA, No. 23-1195 (D.C. Cir. July 27, 2023), Doc.

#2010052 (petition of Ohio Valley Electric Corp. and

others). This petitioner moved for a stay in the Sixth

24

Circuit, see Mot. of Buckeye Power, Inc. and Ohio Valley

Electric Corp. for a Stay Pending Review, Buckeye

Power, No. 23-3647 (6th Cir. Aug. 7, 2023), ECF No. 3,

and separately advocated for the Sixth Circuit to retain

venue over its petition challenging the rule as to Ohio,

see Pet’rs’ Resp. in Opp’n to EPA’s Mot. to Dismiss or

Transfer for Improper Venue, Buckeye Power, No. 233647 (6th Cir. Sept. 18, 2023), ECF No. 25. But the same

petitioner also urged the D.C. Circuit—and eventually

this Court—to stay the same rule as applied to all States,

including Ohio. See Pet’rs’ J. Opposed Mot. to Stay Final

Rule, Utah v. EPA, No. 23-1157 (D.C. Cir. Aug. 2, 2023),

Doc. #2010655 (motion of Ohio Valley Electric Corp. and

others).

History and context make abundantly clear that

Congress did not intend for the Act’s venue provision to

produce such chaos. Indeed, the very purpose of enacting the 1977 amendments was to prevent multiple

proceedings challenging the same features of state

implementation plans (see supra at 4-5), and Congress

specifically rejected a proposal that endorsed regional

circuit review of national issues in statewide plans (see

supra at 5-7). Affirming the Fifth Circuit’s decision here,

however, would endorse such an approach and improperly undo these 1977 amendments.

25

B. Other Examples Show How Such Chaos and

Delay Could Spread If the Fifth Circuit’s

Approach Is Not Rejected.

Two additional examples demonstrate how the

Fifth Circuit’s rulings, if allowed to stand, could further

undermine Congress’s judgment and spawn wasteful

litigation, confusion, and delay.

First, the Fifth Circuit’s rule would be excessively

wasteful and complicated to administer in the context

of so-called “attainment designation actions.” When EPA

revises the national ambient air quality standards, as it

does periodically, EPA must publish one or more final

actions that divide the entire country into geographic

units (“areas”) for the purpose of assessing compliance

with the revised national ambient air quality standards.

In these same actions, EPA must also formally

designate each area as in “attainment” or “nonattainment” of the standards. Such attainment designation

actions are a foundational step for a State in determining how it will plan to achieve (or maintain) compliance

with the standards going forward. Notably, EPA often

issues these actions in batches, such that no single

attainment designation action covers every area across

the country. E.g., Southern Ill. Power Coop., 863 F.3d at

671 (sixty-one areas); ATK Launch Sys., 651 F.3d at

1196 (thirty-one areas).

Like the RFS exemption denials at issue in the Fifth

Circuit’s decision here, each attainment designation

action has binding “legal effect” (Pet. App. 11a) only on

the areas that are the subject of the published action.

Nonetheless, the areas that the action designates are

numerous, often reach throughout the country, and

frequently span more than one State and judicial circuit.

Indeed, these actions almost always designate one or

26

more “multistate attainment areas,” which are roughly

coextensive with large metropolitan areas experiencing

stubborn and severe air pollution. For example, both

Montgomery County, Maryland, and Fairfax County,

Virginia, are part of the “Washington, DC-MD-VA”

nonattainment area for the 2008 and 2015 ozone

standards.4 As the name suggests, this area spans two

States and the District of Columbia, and crosses two

judicial circuits. Similarly, several counties in Missouri

and Illinois are part of the “St. Louis-St. CharlesFarmington, MO-IL” nonattainment area for the 2008

ozone standards and the “St. Louis, MO-IL” nonattainment area for the 2015 ozone standards, both of which

span two judicial circuits. 5 And areas of Connecticut,

New Jersey, and New York are together part of the

“New York-N. New Jersey-Long Island, NY-NJ-CT”

nonattainment area for the 2006 particulate matter

standards—which spans three States and two circuits. 6

4 See EPA, Maryland Nonattainment/Maintenance Status for

Each County by Year for All Criteria Pollutants (last updated Nov.

30, 2024); EPA, Virginia Nonattainment/Maintenance Status for

Each County by Year for All Criteria Pollutants (last updated Nov.

30, 2024).

5 See EPA, Illinois Nonattainment/Maintenance Status for

Each County by Year for All Criteria Pollutants (last updated Nov.

30, 2024); EPA, Missouri Nonattainment/Maintenance Status for

Each County by Year for All Criteria Pollutants (last updated Nov.

30, 2024).

6 See EPA, Connecticut Nonattainment/Maintenance Status

for Each County by Year for All Criteria Pollutants (last updated

Nov. 30, 2024); EPA, New Jersey Nonattainment/Maintenance

Status for Each County by Year for All Criteria Pollutants (last

updated Nov. 30, 2024); EPA, New York Nonattainment/Maintenance Status for Each County by Year for All Criteria Pollutants

(last updated Nov. 30, 2024).

27

Both the geographic boundaries of these areas and

EPA’s formal designation of these areas as in “attainment” or “nonattainment” are often decided “pursuant

to a common, nationwide analytical method.” See, e.g.,

Southern Ill. Power Coop., 863 F.3d at 671. For example,

EPA considers common definitions of statutory terms

such as “contributes to” and “nearby” to inform the jurisdictional boundaries of a nonattainment area. See, e.g.,

Air Quality Designations for the 2010 Sulfur Dioxide

National Ambient Air Quality Standard, 81 Fed. Reg.

45039, 45042 (July 12, 2016). As another example, EPA

may use a particular type of modeling, or a particular

iteration of a modeling platform, to inform its determination of whether an area is “in attainment,” especially

when nearby monitoring sites do not exist. See, e.g., id.

at 45043-44 (discussing EPA’s selection of “dispersion

modeling” as appropriate tool).

It would be simply unworkable if, as the Fifth

Circuit’s erroneous reasoning here would suggest, the

geographical and attainment designation of each individual area addressed in a unitary EPA action could be

challenged only in its regional circuit. For multistate

attainment areas like the ones discussed above, the same

area could potentially be subject to judicial review in

different regional circuits. The same area would then be

subject to different litigation timetables and the possibility of inconsistent decisions about the propriety of EPA’s

determination. 7

7 In addition, a single State might be subject to rulings from

three different circuits, as some States are home to more than one

multistate attainment area. For example, Ohio is home to part of

both the “Cincinnati, OH-KY-IN” attainment area for the 2008 ozone

standards, which spans the Sixth and Seventh Circuits, as well as

the “Steubenville, OH-WV” attainment area for the 2010 sulfur

(continues on next page)

28

Such fracturing of litigation about the same EPA

action, and even the same attainment area, would likely

delay coordination between States seeking to remedy

pollution in their shared areas, or delay the mandatory

submission of plans to EPA. Inconsistent decisions could

subject one State that is part of a multistate attainment

area to the statutory consequences associated with

nonattainment—such as submitting detailed demonstration plans for timely future attainment, and executing those plans through increased regulation—while

leaving the remaining States that are part of the same

attainment area free to continue emitting under the

status quo. That result would be fundamentally ineffective at furthering the objectives of the Clean Air Act.

Because air pollution does not stay where it is emitted,

reducing emissions in only one portion of a nonattainment area would be unlikely, by itself, to fully remedy

the underlying air pollution problems, particularly if the

adjacent counties continue under a business-as-usual

scenario.

Second, the Fifth Circuit’s rule would severely

complicate compliance planning for private regulated

entities in Amici States, such as in the context of socalled “allowance allocation actions.” To carry out legislation to phase down the use of certain chemicals, EPA

publishes allocations of credits (or “allowances”) for

those chemicals for each year under nationwide trading

programs. See, e.g., Phasedown of Hydrofluorocarbons:

Notice of 2025 Allowance Allocations for Production and

Consumption of Regulated Substances Under the

American Innovation and Manufacturing Act of 2020,

dioxide standards, which spans the Sixth and Fourth Circuits. See

EPA, Ohio Nonattainment/Maintenance Status for Each County by

Year for All Criteria Pollutants (updated Nov. 30, 2024).

29

89 Fed. Reg. 84583 (Oct. 23, 2024). The formula and

inputs for calculating the total number of allowances,

and the percentages by which they must be phased down

each year, is fixed by legislation, although EPA establishes the baseline and apportions them. See id.

Like the RFS Actions here, allocations to multiple

individual entities are published in a single rule, and

the action thus has “legal effect” (Pet. App. 11a) on only

the individual entities to which the allowances are allocated. If each affected entity were entitled to challenge

its individual allocation in the regional circuit where it

is located, EPA might be required to recalculate and

reapportion the statutorily mandated allowances across

all affected entities each time that a new circuit decision

issued. As a result, the same action still under review in

other circuits would be changing, and industry would

have no certainty regarding the amount of the chemical

that they could consume. Such a result is fundamentally inconsistent with Congress’s policy judgment in the

Clean Air Act, and with commonsense principles of finality and judicial economy.

30

CONCLUSION

The Fifth Circuit’s judgment should be reversed.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ELIZABETH A. BRODY

Assistant Solicitor General

MORGAN A. COSTELLO

CLAIBORNE E. WALTHALL

Assistant Attorneys General

barbara.underwood@ag.ny.gov

December 2024

* Counsel of Record

(Counsel listing continues on next page.)

31

KRIS MAYES

Attorney General

State of Arizona

2005 N. Central Ave

Phoenix, AZ 85004

ANDREA JOY CAMPBELL

Attorney General

Commonwealth of

Massachusetts

One Ashburton Pl.

Boston, MA 02108

PHILIP J. WEISER

Attorney General

State of Colorado

1300 Broadway, 10th Fl.

Denver, CO 80203

DANA NESSEL

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

WILLIAM TONG

Attorney General

State of Connecticut

165 Capitol Ave.

Hartford, CT 06106

KEITH ELLISON

Attorney General

State of Minnesota

102 State Capitol

75 Rev. Dr. Martin Luther

King Jr. Blvd.

St. Paul, MN 55155

KATHLEEN JENNINGS

Attorney General

State of Delaware

820 N. French St.

Wilmington, DE 19801

MATTHEW J. PLATKIN

Attorney General

State of New Jersey

25 Market St.

Trenton, NJ 08625

KWAME RAOUL

Attorney General

State of Illinois

115 S. LaSalle St.

Chicago, IL 60603

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

1162 Court St. NE

Salem, OR 97301

ANTHONY G. BROWN

Attorney General

State of Maryland

200 Saint Paul Pl.

Baltimore, MD 21202

MICHELLE A. HENRY

Attorney General

Commonwealth of

Pennsylvania

16th Fl., Strawberry Sq.

Harrisburg, PA 17120

(Counsel listing continues on next page.)

32

PETER F. NERONHA

Attorney General

State of Rhode Island

150 S. Main St.

Providence, RI 02903

BRIAN L. SCHWALB

Attorney General

District of Columbia

400 6th St. NW

Washington, D.C. 20001

CHARITY R. CLARK

Attorney General

State of Vermont

109 State St.

Montpelier, VT 05609

CHRISTIAN MENEFEE

County Attorney

Harris County, Texas

1019 Congress, 15th Fl.

Houston, TX 77002

ROBERT W. FERGUSON

Attorney General

State of Washington

P.O. Box 40100

Olympia, WA 98504

MURIEL GOODE-TRUFANT

Corporation Counsel

City of New York

100 Church Street

New York, NY 10007

JOSHUA L. KAUL

Attorney General

State of Wisconsin

17 W. Main St.

Madison, WI 53703