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

No. 23-1229

IN THE

S upreme Court of the United States

_________

ENVIRONMENTAL PROTECTION A GENCY,

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 U.S. SENATORS MIKE LEE,

BILL CASSIDY, M.D., AND TED BUDD

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

_________

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

COLUMBUS SCHOOL OF LAW

THE C ATHOLIC UNIVERSITY OF A MERICA

3600 John McCormack Rd.

Washington, DC 20064

(202) 706-5488

mccotter@cua.edu

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES.............................................. ii

INTEREST OF THE AMICI CURIAE ............................1

SUMMARY OF THE ARGUMENT .................................2

ARGUMENT .........................................................................3

I.

Section 7607(b)(1) Guarantees Local Review

of Local Decisions .....................................................3

II.

Hardship Adjudications Regarding a Single

Refinery

Are

Quintessential

Local

Decisions.....................................................................5

III.

The Executive Cannot Evade Regional

Review through Wordplay and Labels ................7

CONCLUSION................................................................... 11

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ......................................................... 3

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

705 F.3d 453 (D.C. Cir. 2013) ....................................... 7

Clarian Health W., LLC v. Burwell,

206 F. Supp. 3d 393 (D.D.C. 2016) .............................. 8

Columbia Broad. Sys. v. United States,

316 U.S. 407 (1942) ......................................................... 8

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) .......................................................10

Gen. Motors Corp. v. United States,

496 U.S. 530 (1990) ......................................................... 3

Mark v. Republic of the Sudan,

77 F.4th 892 (D.C. Cir. 2023)........................................ 9

RMS of Georgia v. EPA,

64 F.4th 1368 (11th Cir. 2023) ..................................... 6

Sheldon v. Sill,

49 U.S. 441 (1850) ........................................................... 9

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ......................................... 4

Texas v. EPA,

983 F.3d 826 (5th Cir. 2020) .................................... 4, 8

Train v. Nat. Res. Def. Council,

421 U.S. 60 (1975) ........................................................... 4

iii

Travis v. United States,

364 U.S. 631 (1961) .......................................................10

West Virginia. v. EPA,

90 F.4th 323 (4th Cir. 2024).......................................... 9

Statutes

8 U.S.C. § 1226a .................................................................... 5

28 U.S.C. § 44(c) .................................................................... 5

28 U.S.C. § 1391 .................................................................... 7

33 U.S.C. § 1369 .................................................................... 5

42 U.S.C. § 7545 ............................................................. 6, 10

42 U.S.C. § 7607 ................................................ 3, 5, 7, 9, 10

1

INTEREST OF THE AMICI CURIAE1

Amici curiae are United States Senators Mike Lee

(UT), Bill Cassidy, M.D. (LA), and Ted Budd (NC). As

Senators, they have a strong interest in the federal

courts correctly interpreting and preserving the

federalism-focused judicial review scheme that

Congress fashioned in the Clean Air Act to ensure that

disputes over EPA’s local decisions should be heard by

the local circuit courts, not funneled to the far-away

and insular D.C. Circuit.

Indeed, the EPA’s attempt to escape the plain

language of the Clean Air Act’s venue provision

undermines the separation of powers and Congress’s

role in determining where actions may be filed. This

Court should reject that argument and affirm the

decision below.

1 No counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from the amici curiae and

their counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

There are a lot of hard Clean Air Act cases. This is

not one, and accordingly this Court should affirm. The

CAA’s venue provision states, in essence, that a

nationwide action should go to the D.C. Circuit, but

“local” actions should go to the local courts of appeals.

EPA has long agreed that an individualized

administrative “hardship” decision applying only to a

single regulated entity is a paradigmatic example of a

local decision, and thus one that would go to a local

circuit court.

The EPA recently changed positions, however, and

now insists, in defiance of common sense, that it can

convert individualized, local decisions into nationally

applicable action simply by bundling many of them

together, even when doing so means violating

applicable adjudicatory deadlines imposed by

Congress, as occurred here. The strategy is obvious:

the EPA wants the cases funneled to its preferred

forum, the D.C. Circuit. But that is not the venue

scheme Congress provided in the CAA, and the Fifth

Circuit was correct to reject the EPA’s position below.

Text, purpose, and precedent all confirm what

common sense would compel: the CAA’s venue

provision turns on substance, not form; and it does not

allow the EPA to pick its chosen forum based on how

the agency chooses to package its notices.

At bottom, the CAA is designed so that regulated

entities can have their decisions reviewed within their

regional circuits, composed of judges who know that

area, and who have more localized expertise. But as

the EPA would have it, refineries like Calumet and

3

other regulated entities would need to schlep to D.C.

to litigate these cases in the EPA’s backyard whenever

that agency chooses to bundle multiple such decisions

together. That is fundamentally unfair, is

nonsensical, and is not the scheme that Congress

designed.

This Court should therefore affirm the Fifth

Circuit’s decision.

ARGUMENT

I.

Section 7607(b)(1) Guarantees

Review of Local Decisions.

Local

The Clean Air Act divides judicial review of EPA

actions into one of two general categories: actions that

are either nationally applicable or of nationwide effect

go to the D.C. Circuit; but “local or regional” actions—

lacking true nationwide effect—go to the circuit for

that particular region. 42 U.S.C. § 7607(b)(1).

This venue rule reflects the federalism principles

core to the CAA’s longstanding judicial review scheme

and its cooperative-federalism regulatory function.

The Act is a “comprehensive national program that

made the States and the Federal Government

partners in the struggle against air pollution.” Gen.

Motors Corp. v. United States, 496 U.S. 530, 532

(1990). And as part of that arrangement, the “Act

envisions extensive cooperation between federal and

state authorities.” Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 428 (2011). The Act thus assigns certain

decisions—those bearing on the whole country—to the

federal government, while reserving those that turn

more on local expertise to the States, in the first

instance. For example, the Act “relegate[s]” the

4

federal government to a “secondary role” over specific

decisions about the “prevention and control of air

pollution at its source,” because that type of decision

has traditionally been the “primary responsibility of

States and local governments.” Train v. Nat. Res. Def.

Council, 421 U.S. 60, 64, 79 (1975).

The Act’s venue provision tracks this division of

responsibility. “All nationally applicable actions go to

the D.C. Circuit, which promotes national

uniformity.” Texas v. EPA, 983 F.3d 826, 835 (5th Cir.

2020). In other words, nationwide rules go to a single

court to apply a single understanding of the law to a

single federal action. By contrast, “[a]ll locally or

regionally applicable actions that are based on local

and regional determinations go to the regional

circuits, which promotes responsiveness and attention

to local and regional diversity.” Id. That is, where an

action lacks a nationwide effect, courts from the

communities that will actually bear the consequences

of the EPA’s decision are assigned by Congress to

assess its lawfulness.

This just “makes sense.” Id. While the CAA has

only one meaning, of course, how its standards and

adjudications cash out on the ground are often factintensive inquiries. See, e.g., Texas v. EPA, 829 F.3d

405, 423 (5th Cir. 2016). Those sorts of inquiries

should be evaluated by voisinage judges who are

familiar with the businesses, relevant markets, and

locales being regulated or affected—as opposed to

judges reading about (or discovering) Louisiana

refineries from hundreds or thousands of miles away.

Congress believed that it was important for political

buy-in and accountability that the States have a hand

5

in the judges supervising those decisions. Cf. 28

U.S.C. § 44(c) (providing “there shall be at least one

circuit judge in regular active service appointed from

the residents of each state in that circuit”).

All in all, the CAA’s venue provision was a

conscious policy decision to guarantee local review of

local decisions. After all, Congress knows how to send

cases exclusively to the D.C. Circuit when it wants to

do so. See, e.g., 8 U.S.C. § 1226a(b)(3) (detention

review provision). And it knows how to do the

opposite—including in analogous statutory schemes.

See, e.g., 33 U.S.C. § 1369(b)(1). With the CAA,

Congress struck a balance, centralizing review for

truly federal actions, and decentralizing review over

local decisions.

II.

Hardship Adjudications Regarding a

Single Refinery Are Quintessential Local

Decisions.

The CAA is often complicated. And the line

between what is national and what is local is not

necessarily always crystal clear in every case. But

none of those uncertainties are present here: this case

involves a series of individualized administrative

decisions, made by the EPA, and each applying to only

a single regulated refinery in a single location.

The EPA itself had long argued that its decisions

on

small-refinery

hardship

petitions

are

“quintessentially local action[s]” for purposes of venue

under Section 7607(b)(1), because they “adjudicate[]

legal rights as to a single refinery in a single location.”

See, e.g., EPA Motion to Dismiss 10, 18, Advanced

Biofuels Ass’n v. EPA, No. 18-1115 (D.C. Cir. July 13,

6

2018); EPA Br. 15, Producers of Renewables United for

Integrity Truth and Transparency v. EPA, No. 18-1202

(D.C. Cir. Mar. 4, 2019); EPA Br. 2-3, Lion Oil Co. v.

EPA, No. 14-3405 (8th Cir. Dec. 17, 2014).

But the EPA recently switched positions, in a

transparent strategy to funnel such decisions to the

D.C. Circuit. The EPA was right back then, and wrong

now.

The venue analysis starts by examining “the

nature of the EPA’s action” challenged in court. RMS

of Georgia v. EPA, 64 F.4th 1368, 1372–73 (11th Cir.

2023). And the relevant action here is the EPA’s

adjudication of the individual hardship exemptions

that refineries sought and were denied.

Calumet and the other small refinery Respondents

in this case each requested a hardship exemption for

their single refinery. And the EPA denied relief to

each of them based on whether they individually faced

economic hardship. Under the CAA, that analysis

must be based on an individualized determination of

the particular refinery’s economic hardship if

compelled to comply with the CAA’s Renewable Fuel

Standard

requirements.

See

42

U.S.C.

§ 7545(o)(9)(A)(ii)(II), (B)(i). Common sense confirms

that adjudicating legal rights with respect to a single

small refinery in a single location, based on its

economic hardship, is a classic local action and lacks

the sort of nationwide effect needed to trigger review

in the D.C. Circuit.

For comparison: the “EPA’s action in approving or

promulgating any [State] implementation plan is the

prototypical locally or regionally applicable action

7

that may be challenged only in the appropriate

regional court of appeals,” Am. Rd. & Transp.

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

2013) (Kavanaugh, J.), despite the obvious fact that a

SIP affects an entire State. That makes it all the more

clear that the hardship determinations at issue here

must be sent to regional circuit courts, as the decisions

affect only a single refinery in a single location, not

even a single State.

In short, every single tool of interpretation—text,

purpose, precedent, logic, the EPA’s own prior and

long-held position, etc.—points the same way here:

the EPA cannot rebut the presumption of regionalcircuit review.

III.

The Executive Cannot Evade Regional

Review through Wordplay and Labels.

Congress thus made a deliberate choice for this

kind of individualized administrative decision—

which applies to only a single regulated refinery in a

single location—to go to the regional circuits. This

case asks whether that rule goes out the window when

the EPA decides to bundle those decisions within a

single notice. The answer is obviously no.

The whole point of a venue provision like the one

here—one that assigns specific actions to specific

courts, versus one that lays out a range of options (e.g.,

28 U.S.C. § 1391)—is to cabin the discretion of the

litigants. Truly, the only function of a provision like

§ 7607(b)(1) is to remove decisions about venue from

the hands of individual parties and codify what

Congress has decided is the proper forum for a given

matter.

8

The EPA’s position in this case destroys this

function. On its logic, the federal government can now

forum shop to its heart’s content: if it likes the judges

on a regional court, it will issue a standalone hardship

decision; if it feels it has better odds in its own

backyard, it will bundle its decisions—and presto, it is

a “nationally applicable” action.

No rational Congress would craft a venue

provision in this directionless fashion—and no

Congress did. Directing decisions like these to

regional circuits is wise because such decisions are

typically fact-intensive, and their review will benefit

from “local and regional” expertise. Texas, 983 F.3d at

835. But under the EPA’s logic, Congress wanted

those fact-intensive decisions to be made by regional

circuits only when the EPA issues standalone

decisions; otherwise, it wanted the D.C. Circuit to

review when the EPA opted for an omnibus

announcement. That is nonsensical. Whether issued

together or bundled, the judicial review of these

decisions looks exactly the same—it is the same factintensive, refinery- and locally-dependent inquiry no

matter what. There is zero cogent reason why

Congress wanted the regional circuits to review those

decisions only when issued one at a time.

Instead, Congress cared here about substance over

form. That is the default rule in the law. See, e.g.,

Columbia Broad. Sys. v. United States, 316 U.S. 407,

416 (1942). It is blackletter law under the APA, for

instance, that what matters is the substance of the

agency’s action, not how the agency chooses to brand

it. See, e.g., Clarian Health W., LLC v. Burwell, 206 F.

Supp. 3d 393, 407 (D.D.C. 2016) (Jackson, J.), rev’d on

9

other grounds, 878 F.3d 346 (D.C. Cir. 2017). So too

here. As the Fourth Circuit explained: “[a]n action is

local or regional if it assesses and analyzes local or

regional circumstances that are distinct from the

circumstances in other localities or regions and it

rules on those circumstances,” while a “determination

would be national in scope and effect if it addressed

and analyzed circumstances common to all regions in

the Nation.” West Virginia. v. EPA, 90 F.4th 323, 328

(4th Cir. 2024). Whether an action is regional or

national does not turn on the label or the packaging.

Rather, it turns on the substance of the action—and it

is the substance of the action that determines what

part of § 7601(b)(1) applies. See, e.g., Texas v. EPA,

No. 23-60069, 2023 WL 7204840, at *4 (5th Cir. May

1, 2023) (“Yes, the EPA packaged these disapprovals

together” but “the EPA’s chosen method of publishing

an action isn’t controlling. What controls is the CAA.

And the CAA is very clear.”).

More fundamentally, permitting the EPA to

gerrymander venue in this way would undermine the

separation of powers. One of the most important

authorities vested in Congress is its plenary authority

over the jurisdiction of the lower federal courts.

Sheldon v. Sill, 49 U.S. 441, 449 (1850); see also, e.g.,

Mark v. Republic of the Sudan, 77 F.4th 892, 896 (D.C.

Cir. 2023). Through § 7607(b)(1), Congress exercised

that constitutional structural prerogative. But the

effect of the EPA’s view would be to hollow out

§ 7607(b)(1), and transfer determinations of venue

from Congress to the Executive. That would mean the

EPA could now decide for itself where it wants to

litigate—the precise sort of discretion that Congress

10

wanted to eliminate here, in guaranteeing local

judicial review over local EPA decisions. See, e.g.,

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

(“[V]enue provisions in Acts of Congress should not be

so freely construed as to give the Government the

choice of ‘a tribunal favorite’ to it.”).

The EPA’s venue gamesmanship is even more

transparent given that the agency could bundle these

particular decisions only by violating Congress’s

statutory deadlines for adjudication. See 42 U.S.C.

§ 7545(o)(9)(B)(iii). If allowed, the EPA could not only

improperly bundle decisions to force review in the

D.C. Circuit but could do so retroactively or by

delaying adjudications until there are more petitions

to deny and bundle together. Again, the entire point

of a venue provision is to prevent such games.

Finally, the EPA’s position here cannot be justified

on the ground that its decisions are nationally

applicable, because it applied a uniform “analytical

framework” or “generally consistent approach” when

it evaluated these refineries. That logic would make

every EPA action national, because the EPA is already

expected (indeed, commanded) to apply the CAA and

other federal standards in a consistent and uniform

way. See, e.g., Encino Motorcars, LLC v. Navarro, 579

U.S. 211, 222 (2016).

***

The Fifth Circuit correctly interpreted and applied

the venue framework Congress provided in

§ 7607(b)(1). This Court should reject the EPA’s

newfound, contrary approach.

11

CONCLUSION

For the foregoing reasons, amici urge the Court to

affirm the decision below.

Respectfully submitted,

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

C OLUMBUS SCHOOL OF LAW

THE CATHOLIC UNIVERSITY OF

AMERICA

3600 John McCormack Rd.

Washington, DC 20064

(202) 706-5488

mccotter@cua.edu

January 28, 2025