Reply 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.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

A. The denial actions are nationally applicable ................... 4

1. Respondents do not accurately define the

EPA “actions” they seek to challenge ...................... 4

2. Respondents misinterpret Section 7607(b)(1)’s

references to “nationally applicable” and

“locally or regionally applicable” EPA actions ........ 9

B. Regardless, the denial actions must be reviewed in

the D.C. Circuit under Section 7607(b)(1)’s third

prong ................................................................................. 13

1. This Court should reject respondents’ term-ofart interpretation of the word “determination”

in Section 7607(b)(1)’s third prong .......................... 14

2. Respondents’ remaining arguments are

unsound ...................................................................... 17

TABLE OF AUTHORITIES

Cases:

ATK Launch Systems, Inc. v. EPA,

651 F.3d 1194 (10th Cir. 2011) ........................................... 10

Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) .................. 15

Califano v. Yamasaki, 442 U.S. 682 (1979)........................... 7

Caraco Pharmaceutical Laboratories, Ltd.

v. Novo Nordisk A/S, 566 U.S. 399 (2012) .......................... 5

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014).............................................................. 11

FCC v. Pottsville Broadcasting Co.,

309 U.S. 134 (1940)................................................................ 6

HollyFrontier Cheyenne Ref., LLC v. Renewable

Fuels Ass’n, 594 U.S. 382 (2021) ................................... 7, 22

Kentucky v. EPA, 123 F.4th 447 (6th Cir. 2024) ................ 14

(I)

II

Cases—Continued:

Page

Mohamad v. Palestinian Authority,

566 U.S. 449 (2012).............................................................. 15

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ............... 8

National Environmental Development Ass’ns Clean

Air Project v. EPA, 891 F.3d 1041

(D.C. Cir. 2018) ................................................................... 21

SEC v. Chenery Corp., 332 U.S. 194 (1947)........................... 8

Samsung Electronics Co., In re, 2 F.4th 1371

(Fed. Cir. 2021), cert. denied, 142 S. Ct. 1445 (2022) ........ 9

Sinclair Wyoming Ref. Co. v. EPA, 114 F.4th 693

(D.C. Cir. 2024) ......................................................... 7, 18, 23

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

(5th Cir. Feb. 24, 2011) ....................................................... 10

West Virginia Chamber of Commerce v. Browner,

166 F.3d 336, 1998 WL 827315 (4th Cir. 1998) ................. 10

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001)................................................................ 4

Yellen v. Confederated Tribes of the Chehalis

Reservation, 594 U.S. 338 (2021) ...................................... 15

Statues and regulations:

Clean Air Act, 42 U.S.C. 7401 et seq.:

42 U.S.C. 7545 .................................................................. 10

42 U.S.C. 7545(h)(1) ........................................................ 10

42 U.S.C. 7545(h)(6) ........................................................ 10

42 U.S.C. 7545(k)(1)(A) ................................................... 10

42 U.S.C. 7545(k)(10)(D) ................................................. 10

42 U.S.C. 7545(o) ........................................................... 5, 6

42 U.S.C. 7545(o)(2)(A)(i)................................................ 10

42 U.S.C. 7545(o)(9) ......................................................... 18

42 U.S.C. 7545(o)(9)(A) ..................................................... 6

42 U.S.C. 7545(o)(9)(B) ........................................... 6, 7, 13

III

Statutes and regulations—Continued:

Page

42 U.S.C. 7545(o)(9)(B)(iii) ............................................... 6

42 U.S.C. 7604(a)(2) ........................................................... 7

42 U.S.C. 7607(b)(1) ...................................1-5, 8-15, 18-22

42 U.S.C. 1857c-5(e) (1970) ................................................... 16

42 U.S.C. 1857c-5(e)(1) (1970) .............................................. 16

42 U.S.C. 1857c-5(e)(1)(A) (1970) ......................................... 17

42 U.S.C. 1857c-5(e)(1)(B) (1970) ......................................... 17

42 U.S.C. 1857h-5(b)(1) (1970) .............................................. 11

40 C.F.R. 81.12-81.276 ........................................................... 12

Miscellaneous:

37 Fed. Reg. 10,842 (May 31, 1972) ................................. 2, 17

41 Fed. Reg. 56,767 (Dec. 30, 1976) ..................................... 16

H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977) ................. 12

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ............... 11, 12

U.S. Environmental Protection Agency:

Office of Transport & Air Quality, Denial of

AFPM Petition for Partial Waiver of 2023

Cellulosic Biofuel Standard (Mar. 2024),

https://www.epa.gov/system/files/documents/

2024-03/afpm-part-waiver-denial-cellulosicbiofuel-stndrd-2024-03.pdf.......................................... 5

RFS Small Refinery Exemptions

(updated Jan. 16, 2025), https://www.epa.gov/

fuels-registration-reporting-and-compliancehelp/rfs-small-refinery-exemptions ......................... 12

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

REPLY BRIEF FOR THE PETITIONER

At this juncture, the Environmental Protection Agency (EPA) is reassessing the basis for and soundness of

the denial actions at issue here. Nonetheless, the petitions challenging those actions remain pending, and the

D.C. Circuit is where they should be reviewed. Section

7607(b)(1) of Title 42 supports D.C. Circuit review here

for two independent reasons. First, Section 7607(b)(1)

mandates D.C. Circuit review of “nationally applicable”

EPA actions. 42 U.S.C. 7607(b)(1). Here, EPA’s denial

actions are nationally applicable because they resolve

the exemption petitions of small refineries located in

multiple judicial circuits.

Second, Section 7607(b)(1) requires D.C. Circuit review of “locally or regionally applicable” actions that are

“based on a determination of nationwide scope or effect” if EPA “finds and publishes that such action is

based on such a determination.” 42 U.S.C. 7607(b)(1).

The at-issue denial actions are based on determinations

(1)

2

of nationwide scope or effect because they are grounded

in EPA’s statutory interpretation and economic analysis of marketplace conditions, which together establish

EPA’s general framework for adjudicating all small refinery exemption requests under the Renewable Fuel

Standard (RFS) program. Petitions challenging the denial actions should therefore be subject to D.C. Circuit

review.

Contrary to respondents’ 1 assertions (Br. 3-4, 14),

this is not the first time EPA has aggregated common

issues for resolution in a single action and asserted that

review is proper in the D.C. Circuit, either in the RFS

context or otherwise. In 2019 EPA aggregated small

refinery exemption petitions for resolution in a single

action, and argued that venue was proper in the D.C.

Circuit. See Gov’t Br. 6. And in other contexts, EPA

has engaged for decades in similar aggregation of common issues. See id. at 27, 36; see also 37 Fed. Reg.

10,842 (May 31, 1972).

Nothing about EPA’s interpretation of Section

7607(b)(1) gives the agency carte blanche to strategically opt into the D.C. Circuit. EPA may not aggregate

unrelated issues into a single action to manipulate

venue. And locally or regionally applicable actions are

subject to review in the D.C. Circuit only if there is a

but-for causal link between the challenged action and

the determination of nationwide scope or effect; the determination resolves an unsettled issue; and EPA then

exercises its discretion to publish a finding that the action is based on the relevant determination. Those are

meaningful guardrails.

This brief refers to the small refinery respondents as “respondents” throughout.

1

3

Respondents’ contrary interpretations are unpersuasive and risk creating constant piecemeal litigation instead of the consolidation that Congress deemed appropriate for issues of national import. With respect to Section 7607(b)(1)’s first prong, respondents’ approach of

treating EPA’s April and June 2022 denial actions as

105 refinery-specific actions would allow a reviewing

court to disregard EPA’s decision to aggregate common

issues for resolution in a single adjudication. And respondents’ view that an EPA action must govern all 50

States to be “nationally applicable” ignores contrary indications in the statutory text and history and would

generate unpredictability for actions involving dozens

of States, but not all 50.

Respondents read the word “determination” in Section 7607(b)(1)’s third prong as a term of art that refers

only to statutorily required nationwide determinations.

No court has adopted that interpretation, which is inconsistent with Section 7607(b)(1)’s history and with

this Court’s recognition that everyday terms should be

given their everyday meaning. Respondents further

contend that the denial actions were not based on determinations of nationwide scope or effect because EPA

also considered refinery-specific circumstances in making exemption decisions. That contention would effectively negate Section 7607(b)(1)’s third prong.

Respondents suggest (Br. 4, 17, 26, 40, 42) that EPA

attempted to manipulate venue by delaying agency action, aggregating petitions for consideration, and publishing nationwide determinations rather than adjudicating individual exemption requests seriatim. But

EPA has long aggregated common issues for decision.

These actions are no different. This Court should va-

4

cate the judgment below and remand the case with instructions to transfer the petitions to the D.C. Circuit.

A. The Denial Actions Are Nationally Applicable

On their face, the denial actions are nationally applicable because they collectively apply to 39 small refineries located in eight different judicial circuits across

the country. The court below held that an EPA action

can be considered “nationally applicable” only if it binds

EPA prospectively. Pet. App. 12a. Respondents do not

defend that atextual analysis, but their own arguments

suffer from similar flaws.

1. Respondents do not accurately define the EPA “actions” they seek to challenge

Respondents contend (Br. 24-27, 36-38) that, rather

than looking to the face of the two denial actions, the

Court should treat the petitions for review as challenging 105 separate denials of 105 exemption petitions.

Nothing in the text, structure, or context of the relevant

statutes suggests that a court in determining venue under Section 7607(b)(1) should disregard EPA’s decision

to aggregate common issues in a single, nationally applicable action.

a. Section 7607(b)(1) directs a reviewing court to

look to the “final action taken[] by the Administrator

under [the Clean Air Act (CAA)].” 42 U.S.C. 7607(b)(1).

This Court previously construed the word “action” in

Section 7607(b)(1) to “cover comprehensively every manner in which an agency may exercise its power.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 478

(2001). Here, EPA “exercise[d] its power,” ibid., by aggregating the various exemption petitions into two

groups in light of the common issues they presented,

and by deciding those petitions based on common rea-

5

soning. EPA’s decision to consolidate the petitions should

be treated as controlling when a court identifies the “final action” that is subject to the court’s review. 42 U.S.C.

7607(b)(1). Section 7607(b)(1) refers to the action actually “taken[] by the Administrator”—not to a hypothetical action (such as the isolated denial of a single refinery’s exemption petition) that EPA could have taken.

Ibid.2

Respondents assert (Br. 24-25) that Section

7607(b)(1)’s reference to an action “under” the CAA,

combined with the singular nouns in the provisions of 42

U.S.C. 7545(o) that address small refinery exemptions,

requires that each relevant “final action” must involve a

single small refinery petition. The statutory text does

not support that result.

Section 7607(b)(1)’s reference to an action “under”

the CAA indicates that the statute regulates venue only

for actions EPA takes “ ‘by reason of the authority of ’ ”

that Act. Caraco Pharmaceutical Laboratories, Ltd. v.

Novo Nordisk A/S, 566 U.S. 399, 418 (2012) (citation

omitted). Section 7607(b)(1) does not govern venue for

challenges to EPA actions exercising other statutory

authorities. But no one disputes that EPA exercised its

authority “under” the CAA when it issued the denial actions.

Regulated parties have at times effectively aggregated their

own petitions by seeking waivers of other RFS program requirements via a trade association representing obligated parties nationwide. See, e.g., Office of Transport & Air Quality, EPA, Denial of

AFPM Petition for Partial Waiver of 2023 Cellulosic Biofuel Standard (Mar. 2024), https://www.epa.gov/system/files/documents/202403/afpm-part-waiver-denial-cellulosic-biofuel-stndrd-2024-03.pdf. A final action resolving such a petition is likewise nationally applicable.

Id. at 10.

2

6

The singular nouns in Section 7545(o) likewise will

not bear the weight that respondents place on them. Of

course “[a] small refinery” will file an individual “petition” for an exemption, and of course EPA must “evaluat[e] a petition” and “act on any petition” it receives.

42 U.S.C. 7545(o)(9)(B). But that statutory language

does not limit the discretion that agencies have traditionally possessed to structure their actions, including

by aggregating common issues for joint resolution. See

FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143

(1940); see also Gov’t Br. 26-27.

b. The statutory structure and context that respondents invoke (Br. 24-27) do not suggest otherwise. Respondents point out (Br. 26) that Congress initially

granted small refineries a blanket exemption from RFS

compliance before transitioning to an individualized approach to exemptions. See 42 U.S.C. 7545(o)(9)(A) and

(B). But the fact that a small refinery now must petition

for an exemption does not affect either EPA’s power to

act on the petitions collectively or the legal consequences of its decision to do so.

The same is true of the CAA provision that requires

EPA to act on an exemption petition within 90 days of receipt. See 42 U.S.C. 7545(o)(9)(B)(iii); Resp. Br. 25-26.

That deadline does not affect EPA’s authority to issue

a single decision if it receives numerous petitions at approximately the same time. Even where, as here, the

deadline has passed due to litigation surrounding earlier exemption petitions, that lapse does not alter EPA’s

authority.3 Congress provided a remedy for breaches of

Contrary to respondents’ suggestion (Br. 17), EPA’s delay in resolving the petitions at issue here simply reflected delays arising

from the then-pending litigation that led to this Court’s decision in

3

7

the statutory deadline by allowing refineries to file suits

“where there is alleged a failure of the Administrator to

perform any act or duty under this chapter which is not

discretionary.” 42 U.S.C. 7604(a)(2). It would be particularly anomalous to treat a statutory deadline as precluding aggregation, since grouping common issues for

joint resolution may increase an agency’s efficiency and

thus reduce the likelihood of untimely agency actions.

Respondents point out (Br. 26-27) that as a remedy,

courts of appeals have invalidated the denial decisions

only as to individual refineries that have successfully

challenged the denial actions. That remedial choice

merely reflects the longstanding equitable principle

that relief should extend only as far as is necessary to

redress the plaintiffs’ own harms. See, e.g., Califano v.

Yamasaki, 442 U.S. 682, 702 (1979). Indeed, even in

consolidated D.C. Circuit litigation, the court may grant

relief to only some petitioners if it identifies salient differences among them. See, e.g., Sinclair Wyoming Ref.

Co. v. EPA, 114 F.4th 693, 700-701, 714-721, 726-727

(D.C. Cir. 2024) (per curiam). The court in Sinclair held

that, because two of the petitioning refineries “were ineligible for exemptions on other grounds unaffected by

vacatur of the Denial Actions,” id. at 700, those refineries’ petitions for review would be denied, id. at 726.

c. Respondents acknowledge (Br. 37) that “EPA

could have conducted a rulemaking to establish a new

interpretation of Section 7545(o)(9)(B) and new adjudiHollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n,

594 U.S. 382 (2021). See Gov’t Cert. Reply Br. 3 n.1; Gov’t C.A. Br.

11-17. In resolving the exemption petitions for other years, EPA

sought to consider the implications of the decision in HollyFrontier,

and respondents accordingly did not press EPA to act on their petitions during the 90-day window.

8

catory framework, and such a rule would likely have

been nationally applicable.” Respondents suggest (Br.

38), however, that if EPA elects to use adjudication instead, “the CAA’s text calls for local rather than national action.” The logical implication of respondents’

reasoning—like that of the court of appeals’ decision—

is that adjudications cannot be nationally applicable. See

Gov’t Br. 25-26. That view disregards Section 7607(b)(1)’s

expansive reference to “any * * * nationally applicable

* * * final action taken[] by the Administrator under

[the CAA].” 42 U.S.C. 7607(b)(1).

Respondents recognize that, if EPA had proceeded in

two steps—first promulgating a rule to establish the general framework that would govern small refineries’ exemption requests nationwide, and then applying that framework in adjudicating particular exemption petitions—the

rule would have been reviewable only in the D.C. Circuit. Respondents contend, however, that because EPA

chose to announce the general framework in the same

adjudicative decisions that applied the framework to individual refineries, the nationwide framework itself was

reviewable in multiple regional circuits. The Court has

long held, however, that agencies are “not precluded

from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the [agency’s]

discretion.” NLRB v. Bell Aerospace Co., 416 U.S. 267,

294 (1974); see SEC v. Chenery Corp., 332 U.S. 194, 202203 (1947). Respondents’ approach would skew that

choice by making centralized review available in one

scenario but not the other.

Respondents also contend (Br. 42) that, under EPA’s

interpretation of Section 7607(b)(1), the agency could

“manufacture venue in the D.C. Circuit” by combining

9

unrelated agency actions that affect entities in multiple

circuits. Respondents do not and could not plausibly

claim that EPA engaged in any such arbitrary aggregation here. Nor do they identify any instance in which

EPA has attempted to manipulate venue by grouping

otherwise unrelated local actions for decision and then

arguing for D.C. Circuit review. If the agency ever did

so, the principle we advocate here—i.e., that reviewing

courts in determining venue should ordinarily accept

EPA’s framing of its own actions—would allow a court

to reject a particular grouping. Cf. In re Samsung Electronics Co., 2 F.4th 1371, 1377 (Fed. Cir. 2021) (noting

that courts “have repeatedly assessed the propriety of

venue by disregarding manipulative activities of the

parties”), cert. denied, 142 S. Ct. 1445 (2022).

2. Respondents misinterpret Section 7607(b)(1)’s references to “nationally applicable” and “locally or regionally applicable” EPA actions

In respondents’ view, an EPA action is “nationally

applicable” within the meaning of Section 7607(b)(1)

only if it applies to all 50 States. That reading logically

implies that any EPA action with less than 50-State geographic coverage is “locally or regionally applicable.”

See Gov’t Br. 21 (explaining that Section 7607(b)(1) does

not contemplate any intermediate category between

“nationally” and “locally or regionally” applicable actions). Respondents’ view of those statutory terms does

not withstand scrutiny.

a. Respondents contend (Br. 28-29, 40) that, to be

“nationally applicable” under Section 7607(b)(1)’s first

prong, an action must apply within every State. That

understanding is inconsistent with respondents’ identification (Br. 29-30) of a rule regarding annual renewable

fuel volume obligations for the industry as an example

10

of a nationally applicable rule. Although “EPA’s volumes rule affects every RFS-obligated party in the nation,” Resp. Br. 30, the RFS program does not apply in

Alaska. 42 U.S.C. 7545(o)(2)(A)(i).

Respondents’ reliance on the ejusdem generis canon

is flawed for similar reasons. Some of the enumerated

actions referenced in Section 7607(b)(1)’s first prong

can and regularly do apply to fewer than 50 States. For

example, Section 7607(b)(1)’s first prong refers to “any

control or prohibition” of fuels under Section 7545, even

though certain controls or prohibitions apply only in

nonattainment areas, which are not present in every

State. 42 U.S.C. 7607(b)(1); see 42 U.S.C. 7545(h)(1),

(h)(6), and (k)(1)(A); see also 42 U.S.C. 7545(k)(10)(D).

Courts accordingly have determined that various EPA

actions governing fewer than all 50 States, including

nonattainment designations and calls for state implementation plans, were reviewable only in the D.C. Circuit. See, e.g., ATK Launch Systems, Inc. v. EPA, 651

F.3d 1194, 1197 (10th Cir. 2011) (transferring challenge

to single EPA action evaluating States’ recommended

nonattainment designations and promulgating final

designations for 31 areas in 18 States across the country); West Virginia Chamber of Commerce v. Browner,

166 F.3d 336, 1998 WL 827315, at *2 (4th Cir. 1998)

(Tbl.) (per curiam) (transferring challenge to single

EPA action evaluating 22 state plans and declaring

them inadequate, requiring revisions); Texas v. EPA,

No. 10-60961, 2011 WL 710598, at *2 (5th Cir. Feb. 24,

2011) (same as to 13 States). There is no sound basis for

reading the catchall language in Section 7607(b)(1)’s

first prong—which refers to “any other nationally applicable regulations promulgated, or final action taken,

by the Administrator under this chapter,” 42 U.S.C.

11

7607(b)(1)—to require greater geographic coverage than

the enumerated actions reflect.

b. Respondents also contend (Br. 40-42) that an

EPA action may be “locally or regionally applicable”

even if it extends beyond a single judicial circuit. But

respondents never explain how a court would identify

“the appropriate circuit” to review an action that spans

more than one circuit. 42 U.S.C. 7607(b)(1). While respondents suggest (Br. 42) that in most cases the “appropriate circuit” “will be readily apparent,” that is

hardly self-evident, particularly under respondents’

view that an action covering 49 States is “locally or regionally applicable.” For example, when EPA issued a

cross-state air pollution transport rule that curbed

emissions in 27 upwind States, the D.C. Circuit heard

challenges to that rule. See EPA v. EME Homer City

Generation, L.P., 572 U.S. 489, 500-504 (2014). Yet it is

unclear where venue would lie under respondents’ view.

Respondents invoke (Br. 41) the Senate Report that

accompanied the predecessor to Section 7607(b)(1). See

S. Rep. No. 1196, 91st Cong. 2d Sess. (1970) (1970 Senate Report). That predecessor venue provision, enacted

in 1970, specified that any action “approving or promulgating any implementation plan” could be reviewed only

in “the appropriate circuit,” but lacked any catchall for

locally or regionally applicable actions. 42 U.S.C. 1857h5(b)(1) (1970). The Senate Report described EPA actions approving or promulgating “implementation plans

which run only to one air quality control region” as reviewable “in the U.S. Court of Appeals for the Circuit in

which the affected air quality control region, or portion

thereof, is located.” 1970 Senate Report 41. Respondents view that report as cutting against EPA’s interpretation of current Section 7607(b)(1) because a single

12

EPA air quality control region may span multiple circuits, suggesting that there may be more than one “appropriate circuit” for review. That Report does not support respondents’ position here.

First, insofar as the 1970 Senate Report is relevant to

the proper interpretation of current Section 7607(b)(1),

that Report does not support regional-circuit venue in

this case. The Report suggested that regional-circuit

review would be appropriate for “implementation plans

which run only to one air quality control region.” 1970

Senate Report 41. But in addition to spanning multiple

federal judicial circuits, each of the two denial actions

at issue here spanned multiple States and air quality

control regions.4 And nothing in the 1970 Senate Report

suggested that D.C. Circuit venue should be limited to

EPA actions that applied in every State.

Second, in 1977 Congress replaced the CAA’s predecessor venue provision with Section 7607(b)(1) because

the prior law had produced confusion as to the appropriate circuit for reviewing various types of EPA action.

Inter alia, Congress added the catchall language covering unenumerated “nationally” and “locally or regionally” applicable actions. The House Report accompanying that legislation described the nationally relevant actions that should be reviewed in the D.C. Circuit as

those that extend “beyond a single judicial circuit.”

H.R. Rep. No. 294, 95th Cong., 1st Sess. 324 (1977).

c. Respondents assert (Br. 29) that their interpretation of the terms “nationally applicable” and “locally or

See EPA, RFS Small Refinery Exemptions Tbl. 3, https://www.

epa.gov/fuels-registration-reporting-and-compliance-help/rfs-smallrefinery-exemptions (updated Jan. 16, 2025) (listing locations of petitioning small refineries); 40 C.F.R. 81.12-81.276 (listing 265 air

quality control regions).

4

13

regionally applicable” is preferable because it can be

applied more easily and predictably to particular cases.

But as explained above (see pp. 9-10, supra), there are

strong reasons to reject respondents’ view that an action must apply to all 50 States in order to be nationally

applicable. Other than their extreme 50-State requirement, respondents offer no administrable test for determining how large a geographic area an EPA action must

cover to trigger Section 7607(b)(1)’s first prong. Moreover, respondents’ contention that courts must look behind EPA’s characterization of its own actions (here, by

treating EPA’s April and June 2022 denial actions as

105 separate denials) would create its own indeterminacy, as judges would be tasked with determining the

correct unit of analysis. See Gov’t Br. 28-29. The clearest rule—and the one consistent with the text, context,

and history of the statute—is that an action that applies

in multiple judicial circuits is nationally applicable.

B. Regardless, The Denial Actions Must Be Reviewed In

The D.C. Circuit Under Section 7607(b)(1)’s Third Prong

Even if the Court concludes that EPA’s denial actions are “locally or regionally applicable,” those actions

still are reviewable exclusively in the D.C. Circuit. The

denial actions were “based on” EPA’s interpretation of

Section 7545(o)(9)(B) as requiring that any qualifying

economic hardship “must be caused by compliance with

the RFS program,” Pet. App. 242a (capitalization and

emphasis altered), and on EPA’s economic assessment

that refineries presumptively recover the cost of the [fuel

credits] when they sell a gallon of fuel, id. at 249a. Both

conclusions were “determination[s] of nationwide scope

or effect” under Section 7607(b)(1)’s third prong, and

EPA found and published that the denial actions were

based on those determinations. 42 U.S.C. 7607(b)(1).

14

Respondents offer no persuasive defense of the court of

appeals’ contrary holding.

1. This Court should reject respondents’ term-of-art interpretation of the word “determination” in Section

7607(b)(1)’s third prong

In arguing that the denial actions fall outside Section

7607(b)(1)’s third prong, respondents primarily contend

(Br. 32) that the word “determination” in that prong is

a term of art that applies only when a substantive CAA

provision “textually direct[s] EPA to make a ‘determination’ for the entire nation.” No court has adopted

that reading of the statutory language, which lacks support in text, precedent, and history.5

a. Section 7607(b)(1)’s third prong refers to an action that is “based on a determination of nationwide

scope or effect.” 42 U.S.C. 7607(b)(1). Unlike the first

and second prongs, each of which contains a list of enumerated actions followed by a catchall, the third prong

does not cross-reference other statutory provisions as

exemplars of the kind of actions that may be based on

such determinations. If (as respondents contend, Br. 89, 32) Congress had in mind only those determinations

that specific CAA provisions require EPA to make on a

Respondents cite (Br. 32-33) the Sixth Circuit’s decision in Kentucky v. EPA, 123 F.4th 447 (2024), which addressed the appropriate

venue for challenges to an EPA action disapproving various state implementation plans. The court in Kentucky did not adopt respondents’ proposed interpretation of “determination” in Section

7607(b)(1)’s third prong. Rather, the court held that the word “determination” in this provision “refers to the agency’s ultimate decision—

not to each preliminary step on the road to that decision.” Id. at

464. Respondents do not embrace that reasoning, which conflates

the final “action” to which Section 7607(b)(1) refers and the “determination” on which that action is based. 42 U.S.C. 7607(b)(1); see

Gov’t Br. at 41-44, Oklahoma v. EPA, No. 23-1067 (Jan. 17, 2025).

5

15

nationwide basis, Congress could have cross-referenced

such statutes, as it did for the first and second prongs.

Respondents contend (Br. 32) that Congress’s “repeated use of the term ‘determination’ or its derivatives

throughout the [CAA] indicates that it is a term of art

with the same meaning in Section 7607(b)(1).” In support, respondents cite Mohamad v. Palestinian Authority, 566 U.S. 449, 456 (2012). That decision makes

the uncontroversial point that when a given term appears in multiple places within the same statute, the

term generally retains the same meaning throughout.

Ibid. Rather than suggesting that repeated use of a

common word transforms that word into a term of art,

the Court in Mohamad held that the term “individual”

should have the same meaning it has “in everyday parlance.” Id. at 454.

The statutory term (“determination”) at issue here is

likewise used in everyday parlance and should be given its

ordinary meaning. It is “too common” a word to “bear

so loaded a meaning” as respondents would ascribe to

it. Yellen v. Confederated Tribes of the Chehalis Reservation, 594 U.S. 338, 353 (2021) (referring to statutory

term “[r]ecognized”); cf. Bruesewitz v. Wyeth LLC, 562

U.S. 223, 235 (2011) (refusing to read “[u]navoidable” as

a term of art in part because “ ‘[u]navoidable’ is hardly

a rarely used word”). Moreover, if the third prong of

Section 7607(b)(1) referred only to actions that are statutorily required to be based on nationwide “determination[s],” it would make little sense to require EPA to

“find[] and publish[]” that a particular action is based

on such a determination. That fact would be apparent

from the statute under which EPA acted.

b. The history of Section 7607(b)(1) does not support

respondents’ term-of-art reading. In 1976, commenting

16

on the Administrative Conference of the United States’

recommendations for amending the CAA venue provision,

EPA General Counsel G. William Frick discussed a thenrecent EPA action that had granted numerous States

two-year extensions of the attainment deadlines for certain national ambient air quality standards (NAAQS).

See Gov’t Br. 37-38. EPA had taken that action pursuant to a since-repealed CAA provision that authorized

such extensions if “the Administrator determine[d] that”

specified conditions were satisfied. 42 U.S.C. 1857c-5(e)

(1970); see Resp. Br. 9; pp. 16-17, infra. Frick identified

that EPA decision as an “[e]xample[]” of an action that

had involved “generic determinations of nationwide

scope or effect.” 41 Fed. Reg. 56,767, 56,768-56,769

(Dec. 30, 1976). But Frick never suggested that D.C.

Circuit review would be appropriate only for actions

taken pursuant to provisions that specifically call for nationwide “determinations.” Instead, he referred broadly to allowing for D.C. Circuit review of “matters on

which national uniformity is desirable.” Id. at 56,769.

Moreover, contrary to respondents’ suggestion (Br.

9), the CAA provision that governed the extensions in

Frick’s example did not require EPA to make any nationwide determination. Under that provision, the “Governor of a State” could apply for an extension of the

NAAQS compliance deadline. 42 U.S.C. 1857c-5(e)(1)

(1970). EPA could grant such an extension “if the Administrator determine[d] that” (A) at least one emission

source was “unable to comply” with the state-plan requirements “because the necessary technology or other

alternatives [we]re not available” and (B) “[t]he State

ha[d] considered and applied as part of its plan reasonably available alternative means” of attaining the NAAQS

“and ha[d] justifiably concluded that attainment of [the

17

NAAQS] within the [deadline] cannot be achieved.” 42

U.S.C. 1857c-5(e)(1)(A) and (B) (1970).

The statute thus required EPA to make specified determinations about circumstances in a particular State.

EPA concluded, however, that substantially the same

circumstances (in particular, the unavailability of necessary control technology) existed in numerous States,

and that the compliance deadlines for those States

therefore should be extended. See 37 Fed. Reg. at

10,845; Gov’t Br. 36. That nationwide determination (in

the ordinary-meaning sense) was an appropriate exercise of agency discretion, but it was not mandated by

any CAA provision.

In this case, respondents argue (Br. 23) that EPA’s

new statutory interpretation and economic analysis

“were merely steps along the way of EPA’s individualrefinery decisionmaking process.” But in the example

that Frick cited, EPA’s nationwide determination regarding the availability of particular control technology

likewise was a “step[] along the way” to the agency’s

grant of extensions to individual States. Respondents

acknowledge (Br. 46) that EPA could have adopted its

approach to small refinery exemption applications

through a nationally applicable rule. But while the

choice between rulemaking and adjudication may have

other legal consequences (see ibid.), it does not alter the

nationwide character of the agency’s interpretive and

economic determinations.

2. Respondents’ remaining arguments are unsound

Respondents’ remaining contentions largely repeat

the errors of the court of appeals.

a. Respondents emphasize (Br. 47) that EPA was required to consider local circumstances in determining

whether particular small refineries were entitled to ex-

18

emptions. But treating EPA’s consideration of local circumstances as precluding D.C. Circuit review would effectively limit Section 7607(b)(1)’s third prong to agency

actions that are based solely on determinations of nationwide scope or effect. The statute does not impose

that limitation, which would restrict the third prong to

a vanishingly small set of EPA actions. See Gov’t Br.

39-40.

Contrary to respondents’ suggestion (Br. 46), Section 7607(b)(1)’s third prong does not require that the

nationwide determinations be “sufficient” to produce

the agency action at issue. An EPA action is “based on”

a nationwide determination under Section 7607(b)(1)

only if the determination is a “but-for” cause of the action. See Gov’t Br. 31. A but-for cause must be necessary to the final action, but it need not be sufficient to

produce the end result. Respondents therefore are

wrong in contending (Br. 33-35) that the third prong is

inapplicable here because Section 7545(o)(9) requires

EPA to consider each refinery’s individual circumstances

and EPA in fact did so.

When EPA considered the various exemption requests, the agency’s interpretive and economic determinations established a rebuttable presumption that no

small refinery would face disproportionate economic

hardship. Because none of the petitioning small refineries provided sufficient evidence to rebut the presumption, the presumption itself was a but-for cause of the

denials. The decisions of the Fifth and D.C. Circuits

demonstrate as much: Because those courts disagreed

with EPA’s nationwide determinations, they concluded

that the denials could not stand. See Pet. App. 23a-29a;

Sinclair, 114 F.4th at 706-714, 726-727; Gov’t Br. 35.

19

b. Respondents assert (Br. 47) that the denial actions were not “based on” EPA’s economic analysis because (1) even under that analysis, EPA might have

granted particular exemption requests if it had reached

different conclusions about the circumstances of individual refineries; and (2) without making any nationwide

cost-passthrough determination, EPA might have denied the various exemption petitions through refineryby-refinery determinations that each petitioning refinery could recoup its own RFS compliance costs. Those

arguments are unsound.

“[L]ocally or regionally applicable” EPA actions

characteristically involve the application of some nationwide agency rule, policy, or interpretation to a discrete factual setting. Gov’t Br. 42. When EPA takes

such actions, the nationwide rule, etc., typically will be

capable of producing different results in different cases

depending on the local circumstances. If that were not

so, consideration of the local circumstances would be superfluous. Respondents’ contention that this possibility

precludes D.C. Circuit review reprises the mistaken argument that Section 7607(b)(1)’s third prong is limited

to EPA actions that are based solely on nationwide determinations. See p. 18, supra.

It likewise is true that, whenever EPA makes a nationwide determination and then applies it to diverse local settings, the agency might have reached the same

outcomes by repeatedly considering the matter afresh

and ultimately adopting the same determination in

making each local decision. In making the extension decisions that General Counsel Frick remarked upon (see

pp. 16-17, supra), for example, EPA might have separately determined for each State that the requisite technology was not available. By making and announcing a

20

nationwide determination to that effect, however, EPA

expedited both its own disposition of the various States’

extension requests and the process of judicial review. If

a nationwide determination is central to EPA’s actual

rationale for taking a particular “locally or regionally

applicable” action, the action is naturally described as

being “based on” the nationwide determination, even if

the agency could have reached the same conclusion

through a different analytic route.

c. Respondents contend (Br. 44-46) that EPA’s understanding of Section 7607(b)(1)’s third prong would

permit D.C. Circuit review of every locally or regionally

applicable action. But D.C. Circuit venue under the

third prong is subject to meaningful limits, including

that the nationwide determination is the but-for cause

of the underlying action, that the determination resolves an unsettled issue, and that EPA exercises its

discretion to publish its finding that the action was

based on the requisite determination. See Gov’t Br. 4043.

Respondents contend (Br. 45) that EPA’s June 2022

denial action exceeds those limits because that denial

action “merely applied the statutory interpretation that

EPA had announced months earlier in April” and therefore did not itself resolve an unsettled issue. But both

denial actions stemmed from the same proposal, in which

EPA had proposed a new—and contested—statutory interpretation and economic analysis. See Gov’t Br. 42-43

n.6. The weeks-long delay between the two denial actions was due to a deadline imposed by a court order

remanding an action addressing certain petitions. Pet.

App. 48a, 193a. And the validity of EPA’s new statutory

interpretation and economic analysis was scarcely settled when EPA issued the June 2022 denial action.

21

D.C. Circuit review of the denial actions at issue here

would further Section 7607(b)(1)’s purposes of conserving judicial resources and achieving uniform resolution

of issues of national relevance. Respondents argue that

the question whether a particular refinery will receive

an exemption is not a “regulatory issue[] of national importance.” Br. 5 (quoting National Environmental Development Ass’ns Clean Air Project v. EPA, 891 F.3d

1041, 1054 (D.C. Cir. 2018) (Silberman, J., concurring))

(brackets in original). But the denial actions do not

simply resolve particular exemption claims; they set

forth EPA’s nationally relevant determinations regarding the general framework that governs all small refineries’ requests for exemptions from the RFS program.

Even where EPA’s determinations are “applied first to

a single set of facilities,” they may “constitute[] an interpretation of ‘nationwide scope and effect’ ” to which

Section 7607(b)(1)’s third prong applies. National Environmental Development Ass’ns, 891 F.3d at 1053 (Silberman, J., concurring).

Respondents misconstrue (Br. 46) the government’s

observation (Gov’t Br. 42) that, when challenges to

novel resolutions of nationally relevant questions are

brought, D.C. Circuit review promotes efficiency and

uniformity. Respondents are correct that, in deciding

which prong of Section 7607(b)(1) covers a particular

EPA action, a court “look[s] only ‘to the face’ of the action,” rather than “to the challenger’s arguments in the

petition for review.” Resp. Br. 7 (citation omitted); see

Gov’t Br. 20. But when a “locally or regionally applicable” EPA action is “based on a determination of nationwide scope or effect,” and therefore falls within Section

7607(b)(1)’s third prong, EPA may properly consider

what challenges are likely to be brought in court when

22

the agency decides whether to “find[] and publish[] that

such action is based on such a determination.” 42 U.S.C.

7607(b)(1); see Gov’t Br. 33, 43. In particular, when

comments on a proposed “locally or regionally applicable” action indicate that EPA’s predicate nationwide determinations are likely to be the focus of judicial challenges, that fact may lead EPA to publish the specified

finding. Gov’t Br. 43; see Resp. Br. 15 (explaining that

small refineries’ comments on the proposed denial actions challenged EPA’s new statutory interpretation

and economic analysis).

Under respondents’ reading of the relevant statutory language, Section 7607(b)(1)’s third prong would

authorize D.C. Circuit review of only a practically insignificant set of EPA actions. Apart from the extension

for NAAQS compliance in the EPA actions highlighted

by General Counsel Frick, respondents do not identify

a single action that they view as falling within the third

prong. And as explained (see pp. 16-17, supra), the

CAA provision that formerly governed such extensions

did not actually require EPA to make any nationwide

determinations.

Respondents suggest (Br. 49) that giving Section

7607(b)(1)’s third prong a narrow scope is unproblematic because that prong establishes an exception to the

general rule that “locally or regionally applicable” EPA

actions are reviewed in the regional circuits. But “this

Court has made clear that statutory exceptions are to

be read fairly, not narrowly, for they ‘are no less part of

Congress’s work than its rules and standards—and all

are worthy of a court’s respect.’ ” HollyFrontier Cheyenne Ref., LLC v. Renewable Fuels Ass’n, 594 U.S. 382,

396 (2021) (citation omitted). Here, Section 7607(b)(1)’s

text and history indicate that Congress viewed the pro-

23

vision’s third prong as playing an important role in allocating review between the D.C. Circuit and regional circuits.

Respondents complain (Br. 49-50) that D.C. Circuit

review in consolidated cases leads to delay and makes it

difficult to draw attention to individualized issues. But

if delay is a concern, parties may move for expedited

briefing. See, e.g., 22-11617 C.A. Doc. 37-1 (11th Cir.

Dec. 6, 2022) (granting motion to expedite briefing and

oral argument). And the D.C. Circuit’s briefing format

may be adapted to allow individual entities to highlight

their particular issues. For example, the small refineries in Sinclair reserved their rights to “present common issues in a single brief and issues specific to individual refineries or groups o[f] refineries in a limited

number of briefs.” 22-1073 C.A. Doc. 1971464, at 4 (D.C.

Cir. Oct. 31, 2022). In any event, in the recent litigation

involving the denial actions here, the challenges have

overwhelmingly focused on EPA determinations that

were common to all petitioning refineries. See Pet. App.

16a-34a; Sinclair, 114 F.4th at 706-714. The denial actions are thus precisely the types of EPA actions that

are appropriate for centralized D.C. Circuit review.

* * * * *

This Court should vacate the judgment of the court

of appeals and remand with instructions to transfer the

case to the D.C. Circuit.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

FEBRUARY 2025