Reply Brief — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.
Supreme Court briefFeb 20, 2025
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No. 23-1229
IN THE
Supreme Court of the United States
ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
v.
CALUMET SHREVEPORT REFINING, LLC, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
REPLY BRIEF FOR RESPONDENTS
SUPPORTING PETITIONER
DAVID M. LEHN
CESAR AZRAK
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue NW
Washington, DC 20005
(202) 237-2727
dlehn@bsfllp.com
EVAN M. EZRAY
BOIES SCHILLER FLEXNER LLP
401 East Las Olas Boulevard
Suite 1200
Fort Lauderdale, FL 33301
(954) 377-4237
Counsel for Growth Energy
SETH P. WAXMAN
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Avenue NW
Washington, DC 20037
(202) 663-6800
seth.waxman@wilmerhale.com
Counsel for Respondents
MATTHEW W. MORRISON
SHELBY L. DYL
PILLSBURY WINTHROP SHAW
PITTMAN LLP
1200 Seventeenth Street NW
Washington, DC 20036
(202) 663-8036
matthew.morrison
@pillsburylaw.com
Counsel for the Renewable
Fuels Association
CORPORATE DISCLOSURE STATEMENT
Growth Energy has no parent company and no publicly held company has a 10% or greater ownership interest in Growth Energy.
The Renewable Fuels Association has no parent
company and no publicly held company has a 10% or
greater ownership interest in the Renewable Fuels Association.
(i)
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .............. i
TABLE OF AUTHORITIES ..........................................iv
INTRODUCTION .............................................................. 1
ARGUMENT ....................................................................... 2
I.
THE REFINERIES’ DEFINITION OF THE
“ACTION” IS IRRELEVANT AND INCORRECT ............ 2
II. THE REFINERIES HAVE NO ANSWER FOR
THE WAYS IN WHICH THE 2022 EXEMPTION
ACTIONS ARE “NATIONALLY APPLICABLE” ............ 6
III. THE REFINERIES’ CLAIM THAT THE 2022
EXEMPTION ACTIONS WERE NOT “BASED
ON A DETERMINATION OF NATIONWIDE
SCOPE OR EFFECT” CONTRADICTS THE
ACT’S
PLAIN
TEXT,
UNDERMINES
CONGRESS’S PURPOSE, AND YIELDS
ABSURD RESULTS....................................................... 14
CONCLUSION ................................................................. 23
(iii)
iv
TABLE OF AUTHORITIES
CASES
Page(s)
Advanced Biofuels Ass’n v. EPA, 792 F. App’x
1 (D.C. Cir. 2019) .......................................................... 6
Alcoa, Inc. v. EPA, No. 04-1189, 2004 WL
2713116 (D.C. Cir. Nov. 24, 2004) ............................. 15
American
Fuel
&
Petrochemical
Manufacturers v. EPA, 3 F.4th 373 (D.C.
Cir. 2021) ...................................................................... 14
Bennett v. Spear, 520 U.S. 154 (1997) ............................... 4
City of Chicago v. United States, 396 U.S. 162
(1969) .............................................................................. 4
Dalton Trucking, Inc. v. EPA, 808 F.3d 875
(D.C. Cir. 2015) ........................................................... 15
FEC v. Akins, 524 U.S. 11 (1998).................................... 20
Harrison v. PPG Industries, Inc., 446 U.S. 578
(1980) ........................................................................ 8, 17
HollyFrontier Cheyenne Refining, LLC v.
Renewable Fuels Ass’n, 594 U.S. 382 (2021) ............ 5
Kentucky v. EPA, 123 F.4th 447 (6th Cir. 2024) .......... 21
Lindke v. Freed, 601 U.S. 187 (2024) .............................. 12
Massachusetts v. EPA, 549 U.S. 497 (2007) .................. 17
National Ass’n of Home Builders v. Defenders
of Wildlife, 551 U.S. 644 (2007)................................. 20
National Environmental Development Ass’n’s
Clean Air Project v. EPA, 891 F.3d 1041
(D.C. Cir. 2018) ........................................................... 15
v
TABLE OF AUTHORITIES—Continued
Page(s)
NLRB v. Bell Aerospace Co., 416 U.S. 267
(1974) .............................................................................. 8
Renewable Fuels Ass’n v. EPA, No. 19-1220,
ECF #1885774 (Feb. 17, 2021), and EPA .................. 5
Sierra Club v. Leavitt, 368 F.3d 1300 (11th Cir
2004) ............................................................................. 15
Tarrant Regional Water District v. Herrmann,
569 U.S. 614 (2013) ..................................................... 12
United Refining Co. v. EPA, 64 F.4th 448 (3d
Cir. 2023) ...................................................................... 19
West Virginia v. EPA, 597 U.S. 697 (2022) ............. 11, 17
STATUTORY AND OTHER
LEGISLATIVE MATERIALS
5 U.S.C. §551 .................................................................... 3, 8
42 U.S.C.
§7406 ........................................................................ 12
§7407 ........................................................................ 12
§7410 .................................................................. 12, 19
§7411 ........................................................................ 17
§7504 ........................................................................ 12
§7521 ........................................................................ 17
§7545 ............................................ 8, 14, 21, 18, 19, 21
§7602 ........................................................................ 12
§7607 ........................................................ 3, 11, 17, 19
§7628 ........................................................................ 12
H.R. Rep. No. 95-294 (1977) ....................................... 13, 16
S. Rep. No. 91-1196 (1970) .......................................... 10, 13
vi
TABLE OF AUTHORITIES—Continued
Page(s)
REGULATIONS AND OTHER
ADMINISTRATIVE MATERIALS
Miscellaneous Amendments, 41 Fed. Reg.
56,767 (Dec. 30, 1976) ....................................... 8, 13, 20
EPA, AQCRs (Air Quality Control Regions)
(Feb. 19, 2025), https://aqs.epa.gov/aqsweb/
documents/codetables/aqcrs.html ............................ 12
IN THE
Supreme Court of the United States
No. 23-1229
ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
v.
CALUMET SHREVEPORT REFINING, LLC, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
REPLY FOR RESPONDENTS
SUPPORTING PETITIONER
INTRODUCTION
Under §307(b)(1) of the Clean Air Act, the D.C. Circuit was the exclusive venue to review the 2022 exemption actions, for three separate reasons: (1) they are “nationally applicable” because, by operation of law, they
automatically affected the RFP requirements for all
non-exempt regulated entities around the country; (2)
they are “nationally applicable” because they prescribed
a general standard for adjudicating all pending and future small-refinery exemption petitions, irrespective of
the refinery’s location; and (3) they are “based on … determination[s] of nationwide scope or effect,” namely,
EPA’s determinations that the Act requires petitioning
refineries to show that their alleged hardship would be
2
caused by their RFP compliance and that small refineries presumptively can recoup their compliance costs.
Largely ignoring biofuels respondents’ arguments,
the refineries principally rely on two contentions. First,
they contend the relevant EPA “action” is each individual exemption adjudication, not the collective actions
through which EPA adjudicated all the pending exemption petitions. That is irrelevant because all three
grounds for triggering D.C. Circuit venue hold even under the refineries’ definition of the “action.” Second,
they contend the statutory provision under which EPA
acted does not expressly direct EPA to make a nationwide “determination.” That magic-words test contradicts §307(b)(1)’s ordinary meaning, nullifies other statutory text, undermines §307(b)(1)’s purpose, and creates
absurdities.
ARGUMENT
I.
THE REFINERIES’ DEFINITION OF THE “ACTION” IS IRRELEVANT AND INCORRECT
The refineries contend (Br.24) the relevant EPA
“action” is the individual “denial[] of each small-refinery’s hardship petition.” As previously explained, that
contention is both irrelevant and incorrect.
A. The definition of the action is irrelevant because
even the individual exemption denials are “nationally applicable” and “based on a determination of nationwide
scope or effect,” for three independent reasons.
First, every individual adjudication of a small-refinery exemption petition is nationally applicable because
each one determines the level of the national RFP requirements that bind all non-exempt obligated parties
around the country and sets the total national volume of
3
renewable fuel that must be purchased. See Biofuels
Br.36-37; infra pt.II.A.
Second, every individual 2022 exemption denial is
nationally applicable because each one announced a new
general standard for adjudicating all exemption petitions, regardless of the refinery’s location. See Biofuels
Br.38-39; infra pt.II.B.
And third, every individual 2022 exemption denial is
based on two determinations of nationwide scope or effect: (1) the Act requires petitioning refineries to show
that their RFP compliance would cause the requisite
hardship; and (2) small refineries presumptively can recover their RFP compliance costs, and therefore presumptively do not satisfy the causation requirement.
See Biofuels Br.43-44; infra pt.III.B-C.
B. The refineries’ definition of the action is also incorrect. Their argument has two steps. First: “Section
7607(b)(1)’s phrase ‘final action … under this chapter’
points the reader to the substantive CAA provision that
provides the legal source of the agency’s … authority to
take the challenged actions.” Br.24 (some quotation
marks omitted). Second: the relevant substantive provision calls for “an individualized inquiry focused on [the
petitioning] refinery’s own economic circumstances” because it is written “in the singular.” Br.25-26.
That argument assumes its conclusion. See Biofuels
Br.35-36. The integrated 2022 exemption actions are undeniably (1) “final actions” (2) taken “under” the Act, i.e.,
pursuant to the substantive provisions governing smallrefinery exemptions. Ordinarily, “‘agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial
thereof.” 5 U.S.C. §551(13). “The technical form of the
order is irrelevant” to whether it is an “action”; it is an
4
“action” if it “decid[es] the merits.” City of Chicago v.
United States, 396 U.S. 162, 166 (1969). And it is “final
action” if it “mark[s] the consummation of the agency’s
decisionmaking process” and has “legal consequences.”
Bennett v. Spear, 520 U.S. 154, 178 (1997) (quotation
cleaned). The 2022 exemption actions fit the bill, and
nothing in §307(b)(1) purports to give “final action” a different meaning or bars EPA from adjudicating exemption petitions en masse on (or partially on) common
grounds.
C. Finally, the refineries repeatedly accuse EPA of
having improper motives for adjudicating the exemption
petitions through a collective action. Although irrelevant to the question presented, the accusations should
not go unremarked.
The refineries claim “EPA was able to produce bundled hardship decisions only by deliberately ignoring the
CAA’s decision deadline.” Br.26. According to the refineries, EPA did this because it was “[f]rustrated by its
repeated defeats in the regional circuits” and wanted to
“avoid[] judicial review anywhere other than the D.C.
Circuit.” Br.14; see also Br.17, 38, 40.
The refineries’ story is incorrect. EPA did not invent the practice of resolving multiple RFP exemption
petitions through an integrated action in 2022. In 2019,
EPA used an integrated action to grant 31 RFP exemption petitions for 2018. See C.A.J.A.2928-2929. Nor did
the fact that the 2022 exemption actions were issued after the statutory deadlines enable EPA to act through
an integrated action; EPA could have issued late but
separate decisions, and in the future, EPA could issue a
timely but consolidated exemption action covering any
pending petitions whose deadline has not yet arrived.
5
Most importantly, EPA’s timing and integrated process for disposition of the exemption petitions were
driven by EPA’s conscientious desire to conduct an orderly, deliberate, transparent process through which to
overhaul its standard in light of intervening judicial decisions on the subject. See EPA Br.28. Recall that in
2020, the Tenth Circuit rejected the approach under
which EPA had initially granted some of the 2016-2017
exemption petitions later covered by the 2022 exemption
actions, and that the 2018 exemption petitions covered
by the 2022 exemption actions were initially granted and
challenged in the D.C. Circuit while the Tenth Circuit
case was pending. See Biofuels Br.9. This Court granted
certiorari to review a portion of the Tenth Circuit’s decision, HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n, 594 U.S. 382 (2021), rightly
prompting the D.C. Circuit to hold its case in abeyance,
Renewable Fuels Ass’n v. EPA, No. 19-1220, ECF
#1885774 (Feb. 17, 2021), and EPA to refrain from adjudicating other pending exemption petitions until the judicial dust settled. This Court decided HollyFrontier on
June 25, 2021. Three months later, EPA asked the D.C.
Circuit to remand the 2018 exemptions so that EPA
could “reconsider” them “in light of” the Tenth Circuit’s
and this Court’s intervening decisions. Pet.App.78a.
On December 7, 2021, EPA publicly proposed to
deny all pending exemption petitions, including those remanded by the Tenth Circuit, under a new standard that
corrected the remaining errors identified by the Tenth
Circuit, invited all petitioning refineries to update their
submissions in response to the proposed standard, and
invited public comment on its proposal. Pet.App.78a.
The next day, the D.C. Circuit remanded the 2018 exemptions, giving EPA until April 7, 2022, to render its
new decisions on those petitions. Ibid. In January 2022,
6
EPA announced that it was “expanding” its proposed
denial “to include” the exemption petitions remanded by
the D.C. Circuit. Pet.App.48a n.1. After digesting the
voluminous materials submitted by petitioning refineries and others, EPA adopted the proposed standard and
denied the pending exemption petitions under that
standard in April and June 2022. See Biofuels Br.10-12.
This methodical rulemaking-like process differed
from EPA’s prior process, under which EPA did not
publicly propose, seek public comment on, or publicly release exemption decisions. As the D.C. Circuit observed, EPA’s prior process “paint[ed] a troubling picture of intentionally shrouded and hidden agency law
that could have left those [who did not petition for an exemption but were] aggrieved by the agency’s actions
without a viable avenue for judicial review.” Advanced
Biofuels Ass’n v. EPA, 792 F. App’x 1, 5 (D.C. Cir. 2019).
II. THE REFINERIES HAVE NO ANSWER FOR THE WAYS IN
WHICH THE 2022 EXEMPTION ACTIONS ARE “NATIONALLY APPLICABLE”
The refineries contend that an EPA action is “nationally applicable” only if “the persons or enterprises
that the action regulates” are “locat[ed]” in “the entire
country.” Br.28 (quotation cleaned); see also Br.29. To
assess an action’s applicability, they say, courts must
“look only to the face of the action as that action is authorized by the CAA.” Br.7 (quotation cleaned); see also
Br.28, 37, 39. In the refineries’ view, the 2022 exemption
actions fail this test because, taken individually, they
“involve only the regulated individual facilities’ requests
for relief and have legal consequences only for those facilities.” Br.30 (quotation cleaned).
The refineries’ interpretation of the phrase “nationally applicable” is too narrow, but even their unduly
7
narrow test is satisfied by the 2022 exemption actions, in
two different ways.
A. As previously explained, every adjudication of a
small-refinery exemption petition—whether viewed individually or collectively—is “nationally applicable” because every such adjudication determines the level of
the national RFP requirements binding all non-exempt
obligated parties around the country and the total volume of renewable fuel that must be purchased. See Biofuels Br.36-37.
The refineries say this argument impermissibly relies on the actions’ “practical effects”: “[W]hether EPA
chooses to adjust volume obligations for other parties
based on outcomes of small refineries’ hardship petitions” is a “downstream issue,” not on “the face of the
challenged action[s].” Br.39 & n.9 (quotation cleaned);
see also Br.48 n.12. That mischaracterizes how the RFP
works. EPA may choose whether an RFP exemption
raises the RFP obligations for all non-exempt obligated
parties throughout the nation or reduces the nationally
required volume of renewable fuel that must be purchased, but one or the other will necessarily happen as a
matter of law. Further, the actors necessarily affected
under either path are regulated entities: the formally
designated non-exempt obligated parties and renewable-fuel producers, who are also “directly regulated” by
the RFP requirements. Biofuels Br.37 n.12. And those
regulated entities are affected irrespective of their location around the country. Therefore, regardless of EPA’s
“choice,” the facial legal effect of an RFP-exemption adjudication is national. See Biofuels Br.7-8.
B. As also previously explained, there is a separate
reason why the 2022 exemption actions are “nationally
8
applicable” (again, individually or collectively): they
“adopt[ed]” a new standard that “will” “appl[y] to all
small refineries no matter the location or market in
which they operate,” both then-pending and “going forward.” See, e.g., Pet.App.55a, 85a, 101a, 104a, 106a, 187188, 329a; Biofuels Br.37-38. In other words, the actions
adopted a rule—a “statement of general … applicability
and future effect,” 5 U.S.C. §551(4)—and therefore are,
as Mr. Frick put it, “virtually identical to promulgation
of” a regulation. Miscellaneous Amendments, 41 Fed.
Reg. 56,767, 56,769:1 (Dec. 30, 1976); see Biofuels Br.3739.
The refineries counter that the 2022 exemption actions cannot be “nationally applicable” because they are
adjudications and only “rulemakings or similar actions
… go to the D.C. Circuit.” Br.3, 30. Although the distinction between regulation and adjudication might be a
useful rule of thumb for determining whether an EPA
action is “nationally applicable,” it cannot be dispositive;
as previously explained, categorically excluding adjudications from the scope of “action” for purposes of assessing “national applicability” contradicts the Act’s
plain text and this Court’s precedent. Biofuels Br.40;
Harrison v. PPG Industries, Inc., 446 U.S. 578, 592-593
(1980). The refineries have no answer.
Moreover, even if “EPA could have conducted a
rulemaking to establish a new interpretation of Section
7545(o)(9)(B) and new adjudicatory framework, and such
a rule would likely have been nationally applicable,” Refineries Br.37-38, 46, EPA was “not precluded from announcing new principles in an adjudicative proceeding
and … the choice between rulemaking and adjudication
[lay] in the first instance within the [EPA’s] discretion,”
NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974).
Indeed, the difference between adjudication and
9
rulemaking is especially thin here given that the 2022 exemption actions were the product of a notice-and-comment rulemaking-like process. Pet.App.55a; see Biofuels
Br.XX.1
Moreover, categorically excluding adjudications
from the scope of the “actions” that can be “nationally
applicable would disserve §307(b)(1)’s fundamental purpose of avoiding inconsistent substantive rules for the
agency and regulated actors. See Biofuels Br.20-31. The
2022 exemption actions are case-in-point. From the moment EPA issued the actions, it was clear that each disappointed small refinery could challenge the same new
general standard and therefore clear that fragmented
review in home circuits could lead to different conclusions about the standard—an intolerable outcome for a
national program regulating the nation’s entire transportation-fuel supply. The refineries mistakenly dismiss
this point as looking to “the challenger’s arguments in
the petition for review” rather than “the face” of the action. Br.7, 28 n.7; see also Br.46. That the 2022 exemption actions raise general issues is self-evident from
their facial announcement of the new standard.
C. Regardless, the refineries’ test is flawed in multiple ways.
1. The refineries’ view that “applicable” considers
only the location of entities regulated by the action on its
1
The refineries are wrong that “a new rule … would have
needed to be prospective only.” Br.38. Applying the new standard
to the remanded and pending exemption petitions resolved through
the 2022 exemption actions did not disrupt legitimate settled expectations or impose new obligations or penalties for past conduct. See
C.A.ECF #314, at 9-25; C.A.ECF #429, at 13-16; Br. of Intervenors
21-37, Sinclair Wyoming Refining Co. v. EPA, No. 22-1073, ECF
#2024930 (D.C. Cir. Nov. 1, 2023).
10
face, not its practical effects, disregards §307(b)(1)’s text
and purpose. As biofuels respondents showed (Br.2122), “applicable” ordinarily means capable of or suitable
for being put into operation or effect or having relevance. That plainly encompasses practical effects. The
refineries offer no response.
2. The refineries’ view that “nationally” means
“the entire country” fails to account for all of §307(b)(1)
and for §307(b)(1)’s authoritative legislative history,
both of which make clear that “nationally” means “in
more than one judicial circuit.”
As shown, Congress wrote §307(b)(1) to ensure that
judicial review could be centralized whenever needed to
avoid inconsistent substantive rules from duplicative litigation. Biofuels Br.26-31. Initially, Congress selected
specific actions for centralization because it believed
those actions would be the ones “requir[ing] even and
consistent national application.” S. Rep. No. 91-1196, at
41 (1970). Congress subsequently added the “nationally
applicable” catchall because experience had shown that
other types of actions also carried a risk of problematic
inconsistency if review was left to local circuits. See Biofuels Br.27-31.
This congressional intent is evident in the Act’s directive that actions that are not “nationally applicable”
are (presumptively) reviewed in “the” appropriate circuit. §307(b)(1). If an action applies in multiple circuits,
no circuit can be “the” appropriate circuit because no circuit would have a unique interest in or ability to review
the action. See Biofuels Br.24. Section 307(a) shows, in
contrast, that when Congress intended to allow multiple
courts to have venue, it said so: “the district court … for
any district in which such person is found or resides or
11
transacts business … shall have jurisdiction” to issue
certain orders. 42 U.S.C. §7607(a); see Biofuels Br.24-25.
The refineries insist, “Nothing in Section 7607(b)(1)
indicates that the phrase ‘the appropriate circuit’ informs the meaning of ‘nationally applicable.’” Br.40. Of
course it does. The “words [of §307(b)(1)] must be read
in their context and with a view to their place in the
overall statutory scheme.” West Virginia v. EPA, 597
U.S. 697, 721 (2022) (quotation cleaned). And the phrase
“the appropriate circuit” obviously bears on the meaning
of “nationally applicable” because it is the other half of
the dichotomy Congress created: “the appropriate circuit” specifies the venue for reviewing any action that is
not “nationally applicable.” §307(b)(1).
The refineries say “put[ting] so much weight on a
single definite article produces textually absurd results.” Br.41. Noting that “some” “air quality control
regions … cover large metropolitan areas that happen to
cross … circuit[] lines,” they ask rhetorically, “Can there
be any doubt that an EPA disapproval of a regional implementation plan for” such an “air quality control region” is “a ‘regionally applicable’ action for purposes of
Section 7607(b)(1), even though that action touches
both” circuits? Br. 41. Yes, there is good reason for
doubt: the fact that fragmented review of such an action
in home circuits could lead to inconsistent substantive
rules for a single metropolitan area. Far from absurd,
centralizing review of such an action is eminently sensible.
Underlying the refineries’ argument is a mistaken
assumption about the meaning of “locally” and “regionally” in §307(b)(1). The refineries incorrectly equate
those terms with “one State” and “a cluster of States,”
respectively. Ordinarily, “local” refers to “subdivisions
12
of the State,” e.g., a municipality, Lindke v. Freed, 601
U.S. 187, 195 n.1 (2024), and that is how the Act uses the
term, see, e.g., 42 U.S.C. §7628 (“local governments (such
as municipalities and counties”). Although “regional”
can sometimes refer to a cluster of States, e.g., “the
Southeast Region,” “regional” commonly refers to an
area surrounding a “local” area, see, e.g., Tarrant Regional Water District v. Herrmann, 569 U.S. 614, 618
(2013) (“Tarrant Regional Water District (Tarrant), a
Texas agency”). The Clean Air Act reflects the latter
meaning, using “regional” to refer to an area around a
local area, irrespective of state lines; the Act uses “interstate” to refer to an action or program that spans multiple States. See, e.g., 42 U.S.C. §7407(c) (“designate as an
air quality control region any interstate area or major
intrastate area”); 42 U.S.C. §7410(a)(1) (“in each air quality control region (or portion thereof) within such
State”); 42 U.S.C. §7406 (“any interstate air quality control region”); 42 U.S.C. §7602(c) (“‘interstate air pollution control agency’ means … agency established by two
or more States”); 42 U.S.C. §7504(a) (“local governments, regional agencies, or the State”). Accordingly,
the vast majority of air quality control regions are limited to a single State, but some span multiple States and
a small percentage of them span States in different judicial circuits. See EPA, AQCRs (Air Quality Control Regions) (Feb. 19, 2025).2
Because “regions” under the Act are usually cabined
within a single State or, if they are interstate, span
States within a single circuit, there usually is a single appropriate circuit to review actions related to a region,
and therefore “regional” actions are typically “regionally
applicable.” But when a region happens to span multiple
2
https://aqs.epa.gov/aqsweb/documents/codetables/aqcrs.html.
13
circuits, the associated action is “nationally applicable.”
Only this more pragmatic interpretation applies Congress’s express desire that centralized review be available whenever necessary to avoid duplicative litigation
and potentially inconsistent results, and accords with
Congress’s use of the definite article in the phrase “the
appropriate circuit.” In contrast, the refineries offer no
reason why Congress would have wanted review to be
centralized only if the action affected every State in the
Union.
The refineries quote legislative history stating that
§307(b)(1) “places jurisdiction in … the Circuit in which
the affected air quality control region, or portion thereof,
is located.” S. Rep. No. 91-1196, at 41, quoted in Br.41.
Emphasizing the phrase “or portion thereof,” the refineries claim this shows Congress intended all interstate
actions to be (presumptively) reviewed in “the appropriate circuit.” Br.41. But the quoted remark accompanied
the 1970 legislation, which only identified specific actions
for review in either the D.C. Circuit or “the appropriate
circuit.” It was not until 1977 that Congress added the
catchall phrase “nationally applicable” specifically to
more broadly centralize review in the D.C. Circuit of actions raising “generic” issues reaching “beyond a single
judicial circuit.” 41 Fed. Reg. at 56,768:3-56,769:1; H.R.
Rep. No. 95-294, at 324 (1977); see Biofuels Br.29-31.
Thus, the quoted 1970 language does not support the refineries’ interpretation.
Finally, interpreting “nationally” to mean “in more
than one circuit” provides the “clear boundaries” the refineries acknowledge are needed “to avoid wasteful litigation over the proper forum.” Br.29 (quotation
cleaned); see Biofuels Br.19-20. It is the refineries’ position that introduces vagueness and absurdity. What “region” is implicated by the 2022 exemption actions, which
14
denied petitions filed by refineries in 8 judicial circuits
around the country? See Biofuels Br.12. Or consider the
many actions that allow individual States to opt out or
that apply only to the continental United States. See,
e.g., 42 U.S.C. §7545(h)(5)(A). The refineries’ position
implies that such actions are “regionally applicable,” but
their trade association sensibly recognized that such actions are “nationally applicable” when it petitioned the
D.C. Circuit to review an EPA action applicable to “the
48 contiguous States and the District of Columbia,”
§7545(h)(6). See American Fuel & Petrochemical Manufacturers v. EPA, 3 F.4th 373 (D.C. Cir. 2021). The refineries’ simplistic notion of “nationally,” Br.28, creates
incoherence and invites metaphysical litigation over how
much of the nation must be included to be the “whole nation.”
III. THE REFINERIES’ CLAIM THAT THE 2022 EXEMPTION
ACTIONS WERE NOT “BASED ON A DETERMINATION
OF NATIONWIDE SCOPE OR EFFECT” CONTRADICTS
THE ACT’S PLAIN TEXT, UNDERMINES CONGRESS’S
PURPOSE, AND YIELDS ABSURD RESULTS
As previously shown, the 2022 exemption actions
must be reviewed in the D.C. Circuit for yet a third independent reason: the actions (again, individually or collectively) are based on determinations of nationwide
scope or effect: EPA’s 2022 interpretation of the Act to
require direct causation and the presumption that small
refineries can recoup their RFP compliance costs. Biofuels Br.40-48. Each step in the refineries’ response is
meritless.
A. The refineries begin with the proposition that
“the scope and effect of EPA’s determinations are reviewed de novo and without deference to the agency.”
Br.31 (quotation cleaned). They read the Act to
15
establish two distinct requirements: “the action must actually be based on a determination of nationwide scope
or effect and EPA must publish that finding.” Br.31-32.
Biofuels respondents already refuted that reading, Biofuels Br.40-43, and the refineries have no response other
than the mistaken assertion that the “courts of appeals
broadly agree” with their position. Br.31.
Only the Fifth Circuit has agreed with the refineries. See Pet.App.13a; see Biofuels Br.41. Contrary to the
refineries’ assertion, the D.C. Circuit rejected their position. In Alcoa, Inc. v. EPA, the D.C. Circuit deemed
EPA’s finding conclusive: that court had venue under
§307(b)(1) simply because EPA had “unambiguously determined that the final action … has nationwide scope
and effect.” No. 04-1189, 2004 WL 2713116, at *1 (D.C.
Cir. Nov. 24, 2004). Then in Dalton Trucking, Inc. v.
EPA, the D.C. Circuit quoted Alcoa’s holding approvingly and merely rejected EPA’s attempt to use its “invalid ‘national applicability’ finding [a]s, per se, a finding
of ‘nationwide scope or effect.’” 808 F.3d 875, 881-882
(D.C. Cir. 2015). Subsequently, Judge Silberman forcefully argued for deference without suggesting that Dalton stood in the way, even though he discussed Dalton.
National Environmental Development Ass’n’s Clean
Air Project v. EPA, 891 F.3d 1041, 1053 (D.C. Cir. 2018)
(Silberman, J., concurring); see Biofuels Br.42-43. The
Eleventh Circuit has also rejected the refineries’ position. Sierra Club v. Leavitt, 368 F.3d 1300, 1306, 1308
n.12 (11th Cir 2004) (“EPA, not this Court, … judge[s]
whether EPA has made a determination of nationwide
scope.”).
Regardless, deference is unnecessary here because
the 2022 exemption actions plainly are based on determinations of nationwide scope or effect.
16
B. The refineries’ principal claim is that the 2022
exemption actions were not “based on a determination
of nationwide scope or effect” because that phrase requires that the Act “[1] textually direct EPA to make a
‘determination’ [2] for the entire nation—i.e., the kind of
determination that does not depend on individual circumstances.” Br.32; see also, e.g., Br.10, 46, 48. Here,
the refineries say, “[n]either” EPA’s causation interpretation nor its presumption of cost recoupment “describes
any issue that the CAA’s text directed EPA to ‘determine’ before acting on a small refinery’s RFS hardship
petition.” Br.43; see also Br.33. Both elements of the
refineries’ interpretation are wrong.
1. As with the refineries’ “entire country” interpretation of “nationally,” their “entire nation” interpretation of “nationwide” contravenes §307(b)(1)’s text,
purpose, and history. See supra pt.II.C.2. Indeed, the
legislative history shows unequivocally that Congress
used “nationwide” to mean “beyond a single judicial circuit.” H.R. Rep. No. 95-294, at 324. This meaning reflects Congress’s fundamental goal of avoiding duplicative litigation and inconsistent rules by centralizing review of actions raising general issues that could be challenged in multiple circuits. See Biofuels Br.29-31.
Regardless, as explained, two determinations on
which the 2022 exemption actions (individually or collectively) were expressly based—the causation requirement and the presumption of cost recovery—satisfy the
refineries’ notion of “nationwide” because they
“appl[ied] to all small refineries no matter the location or
market in which they operate.” Pet.App.187a-188a,
329a; see Biofuels Br.43-44; supra pp.7-8.
2. The refineries’ magic-words interpretation—
that the “based on a determination” test is satisfied only
17
if the Act expressly told EPA to make a nationwide “determination”— contradicts §307(b)(1)’s ordinary meaning, nullifies other statutory text, undermines
§307(b)(1)’s purpose, and creates other absurdities. Tellingly, no litigant or judge espoused this interpretation
below or, apparently, in any other case involving
§307(b)(1)’s “based on a determination” test.
a. Section 307(b)(1) certainly does not say that the
substantive provision underlying the action must call for
a nationwide “determination.” Rather, the refineries’
premise is that “Congress’s repeated use of the term ‘determination’ or its derivatives throughout the Act indicates it is a term of art with the same meaning in Section
7607(b)(1).” Br.32. By that logic, “the,” “and,” “or” and
myriad other words are also “terms of art” in the Act.
Like those words, “determine” is an ordinary word with
a straightforward meaning—to resolve an issue or to
measure, Biofuels Br.32—that is useful in the administrative context because agencies routinely resolve issues or measure things.
Accordingly, courts, including this one, routinely use
“determine” to describe EPA’s resolution of an issue under the Act, even if the statute did not describe the resolution as a “determination.” See, e.g., West Virginia v.
EPA, 597 U.S. 697, 709 (2022) (describing statutory directive to “include a category of sources in such list if in
[Administrator’s] judgment it causes, or contributes significantly to, air pollution” as requiring EPA to “list ‘categories of stationary sources’ that it determines ‘cause[],
or contribute[] significantly to, air pollution which may
reasonably be anticipated to endanger public health or
welfare’” (citing 42 U.S.C. §7411(b)(1)(A))); Harrison,
446 U.S. at 581 (same); Massachusetts v. EPA, 549 U.S.
497, 533 (2007) (saying, “Under the clear terms of” 42
U.S.C. §7521, “EPA can avoid taking further action only
18
if it determines that greenhouse gases do not contribute
to climate change …,” where statute directs EPA to
“prescribe … standards applicable to the emission of any
air pollutant from any class … of new motor vehicles …
which in [its] judgment cause … air pollution”).
Thus, a statutory directive to “determine” something merely expresses Congress’s intent that EPA resolve a particular issue or measure something; it does
not imply that no other agency resolutions or measurements are “determinations.” Indeed, the RFP-exemption provision itself uses “determin[ation]” and “finding”
interchangeably. See §7545(o)(9)(A)(ii)(I) & (B)(ii). Accordingly, §307(b)(1)’s use of “determination” encompasses any resolution or measurement on which the action is “based,” not just the ones that are statutorily prescribed using the magic word “determine.”
b. The refineries’ position would nullify the portion
of §307(b)(1) conditioning exclusive D.C. Circuit venue
on EPA’s “find[ing] … that such action is based on … a
determination” “of nationwide scope or effect.” Under
the refineries’ position, the necessary statutory directive to make a nationwide “determination” as a condition of the action would fully and conclusively resolve
the action’s basis, leaving no room for EPA to judge the
basis. At most, EPA’s “finding” could operate as an election of D.C. Circuit venue, but as explained previously,
if that was all Congress intended, Congress would have
told EPA to say so directly instead of requiring EPA to
go to the trouble of making a substantive finding about
the action’s basis that is already statutorily specified.
Biofuels Br.42.
c. The refineries’ magic-words test would yield
other absurdities. For example, the Act directs the Department of Energy to conduct “a study to determine
19
whether compliance with the [RFP] would impose a disproportionate economic hardship on small refineries,”
§7545(o)(9)(A)(ii)(I) (emphasis added), and then directs
EPA to “consider the findings of th[at] study” when
“evaluating a petition” for a small-refinery exemption,
§7545(o)(9)(B)(ii). So, under the refineries’ test, if EPA
relies on DOE’s findings, the “based on a determination”
test would be satisfied. But EPA is not required to rely
on DOE’s findings, e.g., United Refining Co. v. EPA, 64
F.4th 448, 460 (3d Cir. 2023), and if it declined to do so,
then the “based on a determination” test would not be
satisfied. Thus, the refineries’ test implies that whether
an exemption decision is reviewable in the DC Circuit
depends on whether EPA followed DOE’s recommendation.
Additionally, the Act allows a party to supplement
the administrative record “[i]n any judicial proceeding in
which review is sought of a determination under this
chapter required to be made on the record after notice
and opportunity for hearing.” §7607(c) (emphasis
added). Under the refineries’ view, a party could not
supplement the administrative record in an identically
postured case if the challenged EPA action was not described by the Act as a “determination.”
Likewise, under the refineries’ test, EPA’s approval
or disapproval of a state implementation plan (“SIP”)
could not be “based on a determination” for purposes of
§307(b)(1) because the relevant statutory provision does
not expressly call for a “determination,” §7410(k)(3), but
EPA’s “correction[]” of such a decision could be, because
the relevant statutory provision does expressly call for
a “determination,” §7410(k)(6).
d. There is no rational reason why Congress would
have wanted the refineries’ magic-words test or these
20
absurd consequences. On the contrary, that test would
undermine Congress’s stated purpose of avoiding inconsistent substantive rules through centralized review of
actions raising general issues. Aggrieved actors may ordinarily challenge any necessary ingredient of an agency
action, whether that ingredient be labeled a determination, basis, finding, ground, or otherwise. See FEC v.
Akins, 524 U.S. 11, 25 (1998) (“those adversely affected
by a discretionary agency decision generally have standing to complain that the agency based its decision upon
an improper legal ground”); cf. National Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 659
(2007) (upholding agency action because objectionable
“stray statement” by agency in published notice of action “could have had no effect on the underlying agency
action being challenged”). Naturally, some of those necessary ingredients will be general, i.e., common to similar actions involving other actors or not limited to the
specific actor covered by the action, but many of those
general ingredients will not be expressly called a “determination” by the Act. Therefore, under the refineries’
reading, inconsistent adjudication of such general ingredients would be rampant—as illustrated by the litigation
over the 2022 exemption actions. See Biofuels Br.44-45.
The refineries claim support from Mr. Frick’s statement that supplied the basis for Congress’s adoption of
the “based on a determination” test. Br.8-9, 32, 48. But
the fact that he discussed cases involving issues relating
to statutorily express “determinations” was entirely incidental to his advocacy. Indeed, the refineries’ test
would have subverted his main objective, just as it
would subvert Congress’s: to make the Act clear that
EPA actions “involv[ing] generic issues that apply to
EPA’s actions nationwide” should be “reviewed in the
D.C. Circuit.” 41 Fed. Reg. at 56,768:3-56,769:1.
21
C. The refineries also advance several meritless arguments that even without their magic-words interpretation, the 2022 exemption actions do not satisfy the
“based on a determination” test.
1. The refineries argue that if the provision for
small-refinery exemptions—§7545(o)(9)(B)—“contemplates any statutory determination at all, it calls for a determination that has a local scope and effect,” namely, an
“individualized hardship determination[].” Br.33-34; see
also, e.g., Br.45-46, 48.
The refineries’ argument equates the “determination” with the “action” itself, contrary to the statutory
text.
Indeed, the refineries’ argument that
§7545(o)(9)(B) calls for an individualized determination
is identical to its argument that §7545(o)(9)(B) calls for
an individualized action. See Br.25-26; see supra pt.I.B.
In a passage quoted by the refineries (Br.32-33), the
Sixth Circuit adopted the same view, declaring that “‘determination’ has a more precise legal meaning that refers to the agency’s ultimate decision—not each preliminary step on the road to that decision.” Kentucky v.
EPA, 123 F.4th 447, 464 (6th Cir. 2024). That is wrong.
Although the Act sometimes uses “determination” to refer to the ultimate decision, the Act also uses “determination” to refer to a premise of the ultimate decision, see,
e.g., §7545(c)(4)(C)(ii) (EPA may “waive a control … if
[it] determines that …”). Section 307(b)(1) clearly uses
“determination” in the latter sense, expressly differentiating between the “action” and the “determination[s]”
on which the “action” is “based.” An action cannot be
based on the “ultimate decision”; the action is the ultimate decision. In effect, the refineries and the Sixth Circuit erase “based on” from §307(b)(1).
22
2. The refineries argue that “appl[ying] a statutory interpretation uniformly” cannot be a “nationwide
determination” because then “every EPA action must go
to the D.C. Circuit.” Br.44. As biofuels respondents previously explained (Br.32-34, 43), that is not necessarily
true and specifically untrue here: the 2022 exemption actions did not apply a settled interpretation but rather resolved and applied the interpretation; and even then review would go to the D.C. Circuit only because EPA
made and published the requisite finding. The refineries
have no response.
3. The refineries contend that EPA’s presumption
of cost recoupment is merely a “hypothesis” made in
EPA’s “proposed denials,” not a “determination” in the
final action. Br.35. That contention does not touch the
other determination on which the actions were based:
the causation requirement. That contention is also
wrong. The presumption, which was thoroughly supported by both economic theory and extensive empirical
evidence collected over many years, was an essential
component of EPA’s final decisions: EPA concluded that
the refineries had not satisfied the statutory standard
for exemption because they had not rebutted the presumption. See Biofuels Br.11-12 (collecting citations). If
the presumption were nothing more than a proposed
prediction, surely the refineries would not have attacked
it so vigorously in their lawsuits. See Biofuels Br.44-45
(collecting citations).3
3
The refineries also assert that the “based on a determination”
test is not satisfied by “processes for an EPA action.” Br.32. The
“process” label perhaps applies to the “four-step framework” EPA
followed in rendering the actions at issue in Oklahoma v. EPA, see
Br. for the Federal Respondents at 5, No. 23-1067, but it does not
apply here: the causation interpretation establishes the legal
23
4. The refineries argue that to satisfy the “based
on a determination” test, the determination “must lie at
the core of the agency action.” Br.32 (quotation cleaned).
That contravenes the plain meaning of “based on,” which
merely requires that the determination be a necessary
ingredient, i.e., a but-for component. See Biofuels Br.23,
47-48. By excluding some essential general ingredients
of agency actions, the refineries’ “core” interpretation
again generates a risk of inconsistent outcomes through
fragmented litigation because litigants can challenge
any but-for component of an agency action. See supra
p.20. Further, if “core” means anything more than “essential,” it is a vague concept where clarity is vital. Supra p.13.
Regardless, both the causation requirement and the
presumption of cost recoupment are “core” under any
fair understanding of the term: they were the centerpiece of EPA’s reconsideration of its approach to RFP
exemptions, see, e.g., Pet.App.80a-84a, 100a-101a, 106a107a; Pet.App.224a-228a, 242a-243a, 248a-249a; they
were the first points in EPA’s “summary” of its actions,
see, e.g., Pet.App.55a-57a; Pet.App.199a-201a; and they
comprised the bulk of EPA’s explanation of its exemption actions, see, e.g., Pet.App.79a-85a, 100a-184a;
Pet.App.223a-228a, 242a-326a.
CONCLUSION
The Court should reverse the decision below.
requirement that must be met and the presumption of cost recoupment is a substantive finding that establishes that the causation requirement is not met unless the presumption is rebutted factually.
24
Respectfully submitted.
DAVID M. LEHN
JAY SCHUFFENHAUER
CESAR AZRAK
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue NW
Washington, DC 20005
(202) 237-2727
dlehn@bsfllp.com
SETH P. WAXMAN
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Avenue NW
Washington, DC 20037
(202) 663-6800
seth.waxman@wilmerhale.com
EVAN M. EZRAY
BOIES SCHILLER FLEXNER LLP
401 East Las Olas Boulevard
Suite 1200
Fort Lauderdale, FL 33301
(954) 377-4237
Counsel for Respondents
Counsel for Growth Energy
MATTHEW W. MORRISON
SHELBY L. DYL
PILLSBURY WINTHROP SHAW
PITTMAN LLP
1200 Seventeenth Street
NW Washington, DC 20036
(202) 663-8036
matthew.morrison
@pillsburylaw.com
Counsel for the Renewable
Fuels Association
FEBRUARY 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.