Motion to hold the briefing schedule in abeyance — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-1229

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

v.

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

_______________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

MOTION OF THE PETITIONER

TO HOLD THE BRIEFING SCHEDULE IN ABEYANCE

_______________

Pursuant to Rule 21.1 of the Rules of this Court, the Acting

Solicitor General, on behalf of petitioner United States Environmental Protection Agency (EPA), respectfully moves to hold the

briefing schedule in abeyance, without prejudice to any party requesting to have the briefing schedule reinstated should the matter

not be resolved.

The reply briefs for petitioner and for the

respondents supporting petitioner (Growth Energy and the Renewable

Fuels Association) are currently due on February 20, 2025, and the

case has not yet been scheduled for argument.

Respondents (in-

cluding the respondents supporting petitioner) oppose petitioner’s

2

request to hold the briefing schedule in abeyance and intend to

file a response.

1.

When a petitioner seeks review of a “final action” taken

by the EPA under the Clean Air Act (CAA), 42 U.S.C. 7401 et seq.,

Section 7607(b)(1) of Title 42 authorizes direct court of appeals

review of the petitioner’s challenge.

That provision makes the

D.C. Circuit the exclusive venue for a petition for review of

certain specified actions or “any other nationally applicable regulations promulgated, or final action taken, by” EPA.

7607(b)(1).

42 U.S.C.

By contrast, a petition for review of an action that

is “locally or regionally applicable may” generally “be filed only

in the United States Court of Appeals for the appropriate circuit.”

Ibid.

But a petition for review of a locally or regionally ap-

plicable EPA action must be filed in the D.C. Circuit if the agency

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.”

Ibid.

At issue in this case are two EPA actions denying 105 petitions filed by small refineries across the country seeking exemptions from their obligations under the CAA’s Renewable Fuel Standard program.

87 Fed. Reg. 24,300 (Apr. 25, 2022); 87 Fed. Reg.

34,873 (June 8, 2022).

Six small refineries filed petitions for

review in the Fifth Circuit, collectively challenging both denial

actions.

Pet. App. 2a, 6a.

Growth Energy and the Renewable Fuels

3

Association were granted leave to intervene as respondents.

See

22-60266 Doc. 303-1 (Mar. 16, 2023).

The court of appeals granted the petitions for review, vacated

the denial actions as to the six petitioners, and remanded to EPA

for further proceedings.

Pet. App. 1a-34a.

As relevant here, the

court denied EPA’s motion to transfer the petitions to the D.C.

Circuit.

Id. at 9a-15a.

The court concluded that the denial

actions are “locally or regionally applicable” rather than “nationally applicable,” and that neither denial action is “based on

a

determination

of

nationwide

scope

or

effect.”

42

U.S.C.

7607(b)(1); see Pet. App. 11a-14a.

On May 20, 2024, EPA filed a petition for a writ of certiorari, which presents the question whether venue for the refineries’

challenges

lies

exclusively

in

the

D.C.

Circuit

because

the

agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.”

42 U.S.C. 7607(b)(1).

On October 21, 2024, this Court

granted EPA’s petition.

2.

After the change in Administration, EPA’s Acting Admin-

istrator has determined that the agency should reassess the basis

for and soundness of the underlying denial actions.

Such a reas-

sessment could obviate the need for this Court to determine the

proper venue for challenges to those actions.

Accordingly, peti-

tioner respectfully requests that this Court hold the briefing

4

schedule in abeyance.

The reply briefs for petitioner and re-

spondents supporting petitioner are currently due on February 20,

2025, and the case has not yet been scheduled for argument.

Given

the Acting Administrator’s determination, it would be appropriate

for the Court to hold further proceedings in this case in abeyance

to allow for EPA to reassess the basis for and soundness of the

denial actions.

The Court has previously held the briefing sched-

ule in abeyance in light of developments arising after the grant

of certiorari in other cases.

See, e.g., Biden v. Sierra Club,

No. 20-138 (Feb. 3, 2021); Mayorkas v. Innovation Law Lab, No. 191212 (Feb. 3, 2021).

Petitioner therefore requests an order hold-

ing the briefing schedule in abeyance, without prejudice to any

party requesting to have the briefing schedule reinstated should

the matter not be resolved.

3.

We have consulted with counsel for respondents (includ-

ing the respondents supporting petitioner), who have informed us

that they oppose the relief requested and intend to file a response.

If this motion is granted, we will advise the Court of

material developments that would support further action by the

Court.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

JANUARY 2025