Amicus Curiae Brief — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.

No. 23-975

In the

Supreme Court of the United States

SEVEN COUNTY INFRASTRUCTURE COALITION, ET AL.,

Petitioners,

v.

EAGLE COUNTY, COLORADO, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE STATE OF LOUISIANA

AND 23 OTHER STATES AS AMICI CURIAE

SUPPORTING PETITIONERS

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

KELSEY L. SMITH

Deputy Solicitor General

CAITLIN A. HUETTEMANN

Assistant Solicitor General

Counsel for Amicus Curiae State of Louisiana

(additional counsel listed after signature page)

September 4, 2024

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 2

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

A. The Decision Below Undercuts Extensive

State and Federal Environmental

Regulations. ....................................................... 4

B. The Decision Below Threatens Our

Cooperative Federalism. .................................. 12

C. The Decision Below Is An Attack On

States’ Policies and Economies. ...................... 16

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Cases

Atlantic Richfield Co. v. Christian,

590 U.S. 1 (2020) .................................................... 15

Berger v. N.C. State Conf. of the NAACP,

597 U.S. 179 (2022) ................................................ 13

California v. United States,

438 U.S. 645 (1978) ................................................ 14

City of Rancho Palos Verdes v. Abrams,

544 U.S. 113 (2005) ................................................ 13

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

572 U.S. 489 (2014) ................................................ 15

Health & Hosp. Corp. of Marion Cnty. v. Talevski,

599 U.S. 166 (2023) ................................................ 14

Hodel v. Va. Surface Min. & Reclamation Ass’n, Inc.,

452 U.S. 264 (1981) ................................................ 14

New York v. United States,

505 U.S. 144 (1992) ................................................ 13

Ohio v. EPA,

144 S. Ct. 2040 (2024) ............................................ 14

Schaffer ex rel. Schaffer v. Weast,

546 U.S. 49 (2005) .................................................. 13

Texas v. New Mexico,

144 S. Ct. 1756 (2024) ............................................ 15

United States v. CITGO Petro. Corp.,

801 F.3d 477 (5th Cir. 2015) .................................. 11

United States v. Coal. for Buzzards Bay,

644 F.3d 26 (1st Cir. 2011)....................................... 7

Va. Uranium, Inc. v. Warren,

587 U.S. 761 (2019) ................................................ 13

iii

Wis. Dep’t of Health & Family Servs. v. Blumer,

534 U.S. 473 (2002) .......................................... 13, 15

Other Authorities

About STB, SURFACE TRANSPORTATION BOARD,

https://tinyurl.com/76wekyah ................................. 5

Current Louisiana SIP-Approved Regulations, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

https://tinyurl.com/mrxvcswt .................................. 9

Delegation Documents for State of Louisiana, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

https://tinyurl.com/42h68ejv ................................. 10

Delegation of EPA’s Authority, LOUISIANA

DEPARTMENT OF ENVIRONMENTAL QUALITY,

https://tinyurl.com/32ksuwcv ................................. 10

Environmental Impact Statement Timelines (20102018), COUNCIL ON ENVIRONMENTAL QUALITY (June

12, 2020), https://tinyurl.com/yrrtuaz3 ................. 18

Federal Railroad Administration and Pipeline and

Hazardous Materials Safety Administration

Hazmat/Crude Oil FAQ, FEDERAL RAILROAD

ADMINISTRATION, https://tinyurl.com/bdeb3tfu ....... 6

Hazardous Materials Division, UNITED STATES COAST

GUARD, https://tinyurl.com/29fye88d ....................... 7

Impacts of the Oil and Natural Gas Industry on the

US Economy in 2021 at 10, PWC (April 2023),

https://tinyurl.com/3ytbc5du .................................. 17

Louisiana Pollutant Discharge Elimination System,

LOUISIANA DEPARTMENT OF ENVIRONMENTAL

QUALITY, https://tinyurl.com/bdcupywm .............. 10

iv

Louisiana State Energy Profile, U.S. ENERGY

INFORMATION ADMINISTRATION,

https://tinyurl.com/4rsurbx6 .................................. 16

NAAQS Table, U.S. ENVIRONMENTAL PROTECTION

AGENCY, https://tinyurl.com/bdzysaak ................... 8

NPDES State Program Authority, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

https://tinyurl.com/2df8uzre ................................. 10

Oil, FEDERAL ENERGY REGULATORY COMMISSION,

https://tinyurl.com/htmfnr6e ................................... 6

Our Focus, U.S. FISH AND WILDLIFE SERVICE,

https://tinyurl.com/mrxsjj9v..................................... 7

Our Mission and What We Do, U.S. ENVIRONMENTAL

PROTECTION AGENCY,

https://tinyurl.com/4rya5tpa .................................... 8

Our Mission, NOAA FISHERIES,

https://tinyurl.com/ms2jpdbb ................................. 11

PHMSA Enforcement, PIPELINE AND HAZARDOUS

MATERIALS SAFETY ADMINISTRATION,

https://tinyurl.com/3sncmf3a .................................. 6

Process of Working with Areas to Attain and

Maintain NAAQS (Implementation Process), U.S.

ENVIRONMENTAL PROTECTION AGENCY,

https://tinyurl.com/bdhf3u2m .................................. 8

Railroad Safety, FEDERAL RAILROAD ADMINISTRATION,

https://tinyurl.com/2s3tby3y ................................... 5

Schoolhouse Rock!, I’m Just a Bill (Mar. 27, 1976),

available at https://tinyurl.com/3zs75266 ............... 4

Spill Prevention, Control, and Countermeasure

(SPCC) for the Upstream (Oil Exploration and

Production) Sector, U.S. ENVIRONMENTAL

v

PROTECTION AGENCY,

https://tinyurl.com/e5vuz2uu ................................. 10

Stationary Sources of Air Pollution, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

https://tinyurl.com/2yvkpsh6 ................................... 9

STB Proceeding Filings, FEDERAL RAILROAD

ADMINISTRATION, https://tinyurl.com/4d7pdjd7....... 5

Regulations

40 C.F.R. Part 60, Subpart J ....................................... 9

40 C.F.R. Part 60, Subpart HH ................................... 9

40 C.F.R. Part 60, Subpart OOOOa–OOOOc ............. 9

40 C.F.R. Part 63, Subpart CC ................................... 9

1

INTEREST OF AMICI CURIAE

Amici curiae are the States of Louisiana, Alabama,

Alaska, Arkansas, Florida, Georgia, Idaho, Indiana,

Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, West

Virginia, and Wyoming. Amici have a profound interest in high-stakes environmental litigation such as

this, which implicates basic principles of cooperative

federalism. Under those principles, the States and the

federal government work together in harmony for the

good of the people and our environment.

The decision below, however, undermines our cooperative federalism. It faults a federal agency that has

no regulatory authority or expertise over oil refining

for failing to consider the effects of such refining on

communities over a thousand miles away from the

project actually under the agency’s review. To be precise, the decision specifically names communities in

Louisiana and Texas that purportedly may be harmed

by a short rail line in Utah, which only underscores

the bizarre nature of that decision and the personal

attack on States that regulate oil refining—and power

our Nation—every day.

This case is as much about federalism and State

sovereignty as it is about environmental law. States

are not children, and the federal government is not our

mother. The Court should reverse the decision below

and restore the States’ rightful place in our cooperative federalism.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

The facts in this case are simple—and the decision

below is simply wrong. Petitioners seek to build and

operate a relatively short rail line in the Uinta Basin.

The Basin sits in northeast Utah, near the intersection of the Wyoming, Colorado, and Utah borders. The

proposed rail line would connect the Basin to a nearby

interstate freight rail network. As a result, the proposed rail line would permit goods produced in the Basin—most predominantly, crude oil—to be transferred

by train to the interstate network and then throughout the United States, including along the Gulf Coast.

On Petitioners’ application, the Surface Transportation Board authorized the construction and operation

of the proposed rail line. In the decision below, however, the D.C. Circuit vacated the authorization order.

As relevant here, the court faulted the Board for failing to consider potential downstream “environmental

effects” of the new line—including “the effects of increased crude oil refining on Gulf Coast communities

in Louisiana and Texas.” Pet. App. 12a.

The oil in the Uinta Basin is some 1,536 miles away

from oil refineries in Baton Rouge, Louisiana. That’s a

24-hour car ride (with no stops). So, if it seems wrong

to fault a federal agency that has no regulatory authority over crude oil for (a) approving a rail line on

one side of America while (b) failing to consider the

environmental effects of crude oil refining on the other

side of America, that’s because something is wrong.

For the reasons explained in Petitioners’ opening

3

brief, the decision below is wrong as a matter of law

and common sense, and this Court should reverse.

Rather than reprise those merits arguments, amici

States submit this brief to highlight a few simple, yet

significant, practical consequences of the D.C. Circuit’s decision that are particularly troubling from the

States’ perspective. Specifically, that decision fails to

account for, and threatens to undermine, myriad federal and State agencies that already govern a barrel of

Utah oil that may travel to Louisiana. As a result, the

decision below threatens the foundation of cooperative

federalism on which our environmental law is built.

And even more fundamentally, the red tape demanded

by the D.C. Circuit will only harm States whose economies depend on the energy industry and every American who depends on the products refined by such

States. For these reasons, if there were any doubt that

reversal is in order, these stark and avoidable consequences should resolve that doubt in favor of reversal.

ARGUMENT

The decision below holds that—in approving a

Utah rail line—the Surface Transportation Board

failed to comply with the National Environmental Policy Act (NEPA), specifically by failing to consider distant potential environmental effects like “the effects of

increased crude oil refining on Gulf Coast communities in Louisiana and Texas.” Pet. App. 12a. That decision is wrong in capital letters as Petitioners explain

and as the U.S. Solicitor General, after much handwringing, agrees.

4

That the decision below is wrong is underscored by

at least three practical considerations important to

amici States. First, the D.C. Circuit’s wildly expansive

view of NEPA overlooks—and indeed, undercuts—the

extensive federal and State regulations that already

account for that court’s concerns. Second, by aggrandizing the federal government’s bureaucratic reach,

the D.C. Circuit’s decision undermines the cooperative

federalism on which our environmental law is based.

And third, by requiring even more delays in alreadyprotracted NEPA analyses, the D.C. Circuit’s decision

threatens States whose economies depend on the energy industry and every American who benefits from

that industry’s products. The Court should reverse.

A. The Decision Below Undercuts Extensive

State and Federal Environmental Regulations.

Start with the practical implications for environmental regulation throughout the Nation—and look at

them from the perspective of a barrel of crude oil that,

at some unspecified point in the future, may be extracted from the Uinta Basin. Compare Schoolhouse

Rock!, I’m Just a Bill (Mar. 27, 1976), available at

https://tinyurl.com/3zs75266 (following a bill through

Congress to illustrate how a bill becomes law). That

barrel of unrefined Utah oil does not magically become

a refined Louisiana product such as diesel or jet fuel.

The magic is a process. And from extraction to postrefining, that barrel of oil will be one of the most heavily regulated items in America, by both federal and

5

State laws designed to target every aspect of that barrel’s life. And that only underscores the nonsensical

consequences of the D.C. Circuit’s decision to transform NEPA into a super environmental law that

would bizarrely preempt all of these unique regulatory

schemes.

1. Take first a sampling of transportation-minded

regulatory agencies. Our barrel of oil cannot move out

of Utah, and ultimately cannot leave any refinery,

without running into a host of federal agencies. As this

case illustrates, transportation by rail line would implicate the Surface Transportation Board, “an independent federal agency that is charged with the economic regulation of various modes of surface transportation, primarily freight rail,” which would oversee

construction and operation of the rail line. About STB,

SURFACE

TRANSPORTATION

BOARD,

https://tinyurl.com/76wekyah (last visited Sept. 3, 2024).

Transportation by rail also would implicate the Federal Railroad Administration, which “promotes and

regulates safety throughout the Nation’s railroad industry.” Railroad Safety, FEDERAL RAILROAD ADMINISTRATION, https://tinyurl.com/2s3tby3y (last updated

Aug. 5, 2024); see also STB Proceeding Filings, FEDERAL

RAILROAD

ADMINISTRATION,

https://tinyurl.com/4d7pdjd7 (last updated Jan. 19, 2024)

(“Since 2020 the STB has been active in a variety of

proceedings which have been of utmost importance

and interest to the Federal Railroad Administration

(FRA) and the wider Department of Transportation

6

(DOT).”); Federal Railroad Administration and Pipeline and Hazardous Materials Safety Administration

Hazmat/Crude Oil FAQ, FEDERAL RAILROAD ADMINISTRATION, https://tinyurl.com/bdeb3tfu (last visited

Sept. 3, 2024) (“We are taking several steps to address

increases in crude oil rail traffic throughout the

United States.”) (Hazmat/Crude Oil FAQ).

But train transportation is not our barrel’s only option. It also may travel through the vast network of

pipelines around the Nation. If that happens, then it

will run across the Pipeline and Hazardous Materials

Safety Administration, whose “primary mission under

the Federal laws governing the transportation of hazardous materials is to protect people and the environment from the risks inherent in the transportation of

hazardous materials by pipelines and other modes.”

See PHMSA Enforcement, PIPELINE AND HAZARDOUS

MATERIALS SAFETY ADMINISTRATION, https://tinyurl.com/3sncmf3a (last updated June 15, 2024); see

also Hazmat/Crude Oil FAQ, Federal Railroad Administration, https://tinyurl.com/bdeb3tfu (“PHMSA’s

Office of Pipeline Safety is responsible for regulating

the safety of design, construction, testing, operation,

maintenance, and emergency response of U.S. oil and

natural gas pipeline facilities.”). So, too, would it implicate the Federal Energy Regulatory Commission,

which “[r]egulates [the] rates and practices of oil pipeline companies engaged in interstate transportation.”

Oil, FEDERAL ENERGY REGULATORY COMMISSION,

https://tinyurl.com/htmfnr6e (last updated June 6,

2024).

7

Or, if our barrel of oil is loaded on a ship for transportation, then it enters the domain of the United

States Coast Guard. See Hazardous Materials Division, UNITED STATES COAST GUARD, https://tinyurl.com/29fye88d (last visited Sept. 3, 2024) (“The

Hazardous Materials Division is responsible for developing and maintaining regulations, standards, and industry guidance to promote the safety of life and protection of property and the environment during the

marine transportation of hazardous materials ….”);

see also United States v. Coal. for Buzzards Bay, 644

F.3d 26 (1st Cir. 2011) (vacating Coast Guard rule intended to regulate the transportation of oil because

the Coast Guard failed to comply with NEPA).

And this is just a sample of transportation-related

agencies. That says nothing about, for example, Respondent Center of Biological Diversity’s assertion in

proceedings below that the mortality rate for grizzly

bears and black bears in Louisiana due to train collisions is relevant to the construction of a short rail line

in Utah. C.A. JA192. If that is so, then our barrel of oil

would encounter regulations by the U.S. Fish and

Wildlife Service, which praises itself as “the only federal government agency whose primary responsibility

is to manage fish and wildlife resources in the public

trust for today and future generations.” Our Focus,

U.S. FISH AND WILDLIFE SERVICE, https://tinyurl.com/mrxsjj9v (last visited Sept. 3, 2024).

In short, the mere transportation of a barrel of oil

runs into a panoply of federal agencies, each designed

to regulate activity surrounding that barrel.

8

2. When that barrel ultimately enters, say, a Louisiana refinery, the regulatory pressure on the barrel

only intensifies. That is principally so because of the

Clean Air Act and the Environmental Protection

Agency (EPA), which is charged with “protect[ing] human health and the environment.” Our Mission and

What We Do, U.S. ENVIRONMENTAL PROTECTION

AGENCY, https://tinyurl.com/4rya5tpa (last updated

May 11, 2024). Before our barrel may be refined, the

Clean Air Act imposes a mind-numbing array of standards and obligations on refineries. For example, under

the Act, EPA sets National Ambient Air Quality

Standards (NAAQS) “for six principal pollutants”—

carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution, and sulfur dioxide—“which can be harmful to public health and the environment.” NAAQS Table, U.S. ENVIRONMENTAL PROTECTION AGENCY,

https://tinyurl.com/bdzysaak (last updated Feb. 7,

2024). The Act, in turn, requires States to submit

State Implementation Plans (SIPs) that reflect “a general plan to attain and maintain the [NAAQS] in all

areas of the country and a specific plan to attain the

standards for each area designated nonattainment”—

or else EPA will develop its own plan. Process of Working with Areas to Attain and Maintain NAAQS (Implementation Process), U.S. ENVIRONMENTAL PROTECTION

AGENCY, https://tinyurl.com/bdhf3u2m (last updated

Nov. 30, 2023). Like many States, Louisiana adopted

its own SIP, which EPA approved. See Current Louisiana SIP-Approved Regulations, U.S. ENVIRONMENTAL

PROTECTION AGENCY, https://tinyurl.com/mrxvcswt

9

(last updated Apr. 1, 2024). And thus, Louisiana directly regulates the emissions of these core pollutants,

including from refineries.

The same is true of the New Source Performance

Standards (NSPS) and National Emission Standards

for Hazardous Air Pollutants (NESHAP) promulgated

by EPA under the Act. Both types of Standards target

“[s]tationary sources of air pollution, including … refineries.” Stationary Sources of Air Pollution, U.S. ENVIRONMENTAL

PROTECTION

AGENCY,

https://tinyurl.com/2yvkpsh6 (last updated Aug. 12, 2024). Specifically, entire sections of the Code of Federal Regulation are dedicated to NSPS for refineries. See 40 C.F.R.

Part 60, Subpart J (Standards of Performance for Petroleum Refineries); id. Subpart JA (Standards of Performance for Petroleum Refineries for Which Construction, Reconstruction, or Modification Commenced After May 14, 2007); see also id. Subparts

OOOOa–OOOOc (standards of performance for crude

oil and natural gas facilities). Similarly, entire sections of the Code are dedicated to NESHAP for refineries and oil facilities. See 40 C.F.R. Part 63, Subpart

CC (National Emission Standards for Hazardous Air

Pollutants from Petroleum Refineries); id. Subpart

HH (National Emission Standards for Hazardous Air

Pollutants from Oil and Natural Gas Production Facilities). EPA, moreover, has delegated to Louisiana

the authority and responsibility to enforce the NSPS

and NESHAP. See Delegation Documents for State of

Louisiana,

U.S. ENVIRONMENTAL

PROTECTION

AGENCY, https://tinyurl.com/42h68ejv (last updated on

10

June 21, 2024); Delegation of EPA’s Authority, LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY,

https://tinyurl.com/32ksuwcv (last visited Sept. 3,

2024).

This barely scratches the surface of the extensive

air-focused regulations that govern the refining of our

barrel of oil—and that does not speak to water. Under

the Clean Water Act, several aspects of the refining

process trigger corresponding regulatory requirements. For example, if a refinery wishes to discharge

a pollutant into waters of the United States, it is subject to the National Pollutant Discharge Elimination

System—which Louisiana administers on behalf of

EPA. See NPDES State Program Authority, U.S. ENVIRONMENTAL

PROTECTION

AGENCY,

https://tinyurl.com/2df8uzre (last updated Apr. 22, 2024); Louisiana Pollutant Discharge Elimination System, LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY,

https://tinyurl.com/bdcupywm (last visited Sept. 3,

2024). Similarly, refineries are subject to EPA’s direct

enforcement of the Spill Prevention, Control, and

Countermeasure rule, which “requires facilities to develop, maintain, and implement an oil spill prevention

plan.” Spill Prevention, Control, and Countermeasure

(SPCC) for the Upstream (Oil Exploration and Production) Sector, U.S. ENVIRONMENTAL PROTECTION

AGENCY, https://tinyurl.com/e5vuz2uu (last updated

Feb. 15, 2024).

Here, too, even more ancillary regulatory schemes

may come into play. For instance, insofar as marine

life is implicated by refining our barrel of oil, that is

11

where the National Marine Fisheries Service (also

known as NOAA Fisheries) arrives, wielding its “responsib[ility] for the stewardship of the nation’s ocean

resources and their habitat.” Our Mission, NOAA

FISHERIES, https://tinyurl.com/ms2jpdbb (last visited

Sept. 3, 2024). And the government and environmental groups have long sought to leverage other wildlife

laws like the Migratory Bird Treaty Act to change and

regulate refineries’ behavior. See, e.g., United States v.

CITGO Petro. Corp., 801 F.3d 477 (5th Cir. 2015) (reversing criminal convictions based on refinery’s alleged noncompliance with the Clean Air Act by using

uncovered oil tanks that purportedly resulted in bird

deaths, which, in the government’s incorrect view, violated the Migratory Bird Treaty Act).

At bottom, our hypothetical barrel of oil is the subject of innumerable regulations, especially at the heart

of the refining process.

3. All this reinforces the deeply impractical and

nonsensical problem with the D.C. Circuit’s view. Under that view, NEPA required the Surface Transportation Board to analyze a proposed Utah rail line with

an eye toward refining activities that might occur

years later, over a thousand miles away, and subject

to myriad regulations and regulatory oversight specifically tailored to those activities. Making even less

sense, many of the necessary prerequisites for refining

activity—such as constructing a refinery—themselves

will have been subject to a NEPA analysis. That is because NEPA’s requirements generally apply when an

12

agency is tasked with “undertaking major federal actions that will affect the environment.” U.S. Br. 2.

That makes a joke of a bureaucracy already often

(and rightly) maligned for its frustrating inefficiencies. (Said one person in a play on Dr. Franklin’s

words: “The only thing certain in life is death, taxes,

and endless bureaucratic red tape.”) Whether as a

matter of NEPA’s original understanding or common

sense, there is zero reason to believe that Congress intended NEPA to be a super environmental law that

tasks each federal agency with divining the propriety

and effects of every hypothetical activity that could

flow from its discrete regulatory action—no matter

that the activity may be years and thousands of miles

away; or that the agency has no regulatory authority

over the activity; or that other actually knowledgeable

federal and State agencies will regulate that activity

if and when it occurs.

Existing federal and State regulations exist for a

reason—and there is no basis to believe that Congress

intended NEPA to make all those regulations superfluous for a barrel of oil that someday may be extracted from the Uinta Basin.

B. The Decision Below Threatens Our Cooperative Federalism.

In addition—and as a byproduct—the D.C. Circuit’s decision does considerable violence to the concept of cooperative federalism which has existed in

American law for decades. Cf. Berger v. N.C. State

13

Conf. of the NAACP, 597 U.S. 179, 197 (2022) (rejecting position that “would make little sense and do much

violence to our system of cooperative federalism”); Va.

Uranium, Inc. v. Warren, 587 U.S. 761, 775 (2019)

(plurality op.) (“[c]onsider[ing] just some of the costs to

cooperative federalism”).

1. For years, Congress has embedded cooperative

federalism in statutes across the United States Code.

See, e.g., Schaffer ex rel. Schaffer v. Weast, 546 U.S.

49, 52 (2005) (the Individuals with Disabilities Education Act “is ‘frequently described as a model of cooperative federalism’” (internal quotation marks omitted));

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,

128 (2005) (Breyer, J., concurring) (in the Telecommunications Act of 1996, Congress adopted “a system

based on cooperative federalism,” where “[s]tate and

local authorities would remain free to make siting decisions … subject to minimum federal standards—

both substantive and procedural—as well as federal

judicial review”); Wis. Dep’t of Health & Family Servs.

v. Blumer, 534 U.S. 473, 495 (2002) (“The Medicaid

statute … is designed to advance cooperative federalism.”); New York v. United States, 505 U.S. 144, 167–

68 (1992) (collecting examples of federal statutory

schemes based on cooperative federalism, including

the Clean Water Act, the Occupational Safety and

Health Act of 1970, the Resource Conservation and

Recovery Act of 1976, and the Alaska National Interest Lands Conservation Act); Hodel v. Va. Surface

Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 289

14

(1981) (“[T]he Surface Mining Act establishes a program of cooperative federalism that allows the States,

within limits established by federal minimum standards, to enact and administer their own regulatory

programs, structured to meet their own particular

needs.”); California v. United States, 438 U.S. 645, 650

(1978) (“If the term ‘cooperative federalism’ had been

in vogue in 1902, the Reclamation Act of that year

would surely have qualified as a leading example of

it.”). And the concept itself is exceedingly simple: “Cooperative federalism” is “federal and state actors

working together.” Health & Hosp. Corp. of Marion

Cnty. v. Talevski, 599 U.S. 166, 182 (2023).

The concept is uniquely apt in environmental

law—and in particular, in the Clean Air Act. As the

Court recently emphasized, “[t]he Clean Air Act envisions States and the federal government working together to improve air quality.” Ohio v. EPA, 144 S. Ct.

2040, 2048 (2024). And that is best demonstrated by

several Louisiana schemes detailed above. Through its

SIP, Louisiana enforces the NAAQS. And it enforces

the NSPS, NESHAP, and NPDES. By doing so, Louisiana and other similarly situated States have shouldered their sovereign responsibilities to regulate

within their borders, and they have harnessed their

unique knowledge of their citizens’ needs to advance

what, in their view, is the best policy for their State.

That is by design. As the Court has explained, “[w]hen

interpreting [statutes embodying cooperative federalism], we have not been reluctant to leave a range of

permissible choices to the States, at least where the

15

superintending federal agency has concluded that

such latitude is consistent with the statute’s aims.”

Blumer, 534 U.S. at 495. That is uniquely true in environmental regulation.

3. The D.C. Circuit’s decision, however, threatens

to transform our cooperative federalism into an empty

promise. Just ask Louisiana, which—if our hypothetical barrel of Utah oil arrives in Baton Rouge for refining—stands ready to oversee the refining of that oil

subject to searching regulations. The “authority” Louisiana holds under federal law to perform that oversight function is meaningless if, at the same time,

Congress intended other random federal agencies to

short-circuit Louisiana’s authority by deciding for

themselves whether the refining activity is intolerable

by their lights.

“Cooperative federalism that is not.” Texas v. New

Mexico, 144 S. Ct. 1756, 1785 (2024) (Gorsuch, J., dissenting) (cleaned up). It is instead “paternalistic central planning,” Atlantic Richfield Co. v. Christian, 590

U.S. 1, 43 (2020) (Gorsuch, J., concurring in part and

dissenting in part), which “turn[s] [cooperative federalism] upside down, [by] recasting the [] presumption

in favor of cooperative federalism into a presumption

of federal absolutism.” Id. at 44; cf. EPA v. EME

Homer City Generation, L.P., 572 U.S. 489, 537 (2014)

(Scalia, J., dissenting) (“This remarkably expansive

reasoning makes a hash of the Clean Air Act, transforming it from a program based on cooperative federalism to one of centralized federal control.”).

16

This is not how environmental regulation is supposed to work—and there is no good reason to allow

this lasting damage to our cooperative federalism.

C. The Decision Below Is An Attack On

States’ Policies and Economies.

Finally, and perhaps most important to the States,

the D.C. Circuit’s decision, if upheld, would directly

and negatively impact the States by hindering economic development and energy production.

1. The energy industry—and in particular, the oil

refining segment of that industry—is critical to the

livelihood of Americans everywhere. Louisiana’s story

is a prime example. It is home to 15 crude oil refineries

that “account for about one-sixth of the nation’s refining capacity and can process almost 3 million barrels

of crude oil per calendar day.” Louisiana State Energy

Profile, U.S. ENERGY INFORMATION ADMINISTRATION,

https://tinyurl.com/4rsurbx6 (last visited Sept. 3,

2024). But Louisiana does not keep all of those refined

products for itself. Instead, it “sends most of its refined

petroleum products out of state.” Id. The 3,100-mile

PPL Pipeline, for example, “distributes about 720,000

barrels per day of motor gasoline, jet fuel, diesel fuel,

and biodiesel throughout much of the South,” before

ending “in the suburbs of Washington, D.C.” Id. And

the 5,500-mile Colonial Pipeline carries about 2.5 million barrels each day “to 11 other states before it ends

in Linden, New Jersey.” Id. In other words, much of

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America would not survive without the refined products that Louisiana and other States deposit in these

critical arteries destined for the northeast.

Within States like Louisiana, moreover, the vitality of the industry bears directly on the vitality of the

States’ citizens. One recent report, for instance, describes Louisiana as one of a few States in which the

oil and gas industry has “exceptionally large direct impacts” on the State itself, since “more than 90,000

[Louisiana] jobs [are] directly attributable to the oil

and natural gas industry.” Impacts of the Oil and Natural Gas Industry on the US Economy in 2021 at 10,

PWC (April 2023), https://tinyurl.com/3ytbc5du. And

that, in turn, generates quite literally billions of dollars for Louisianans themselves and the State’s economy. Id. at B-1 (describing $10.7 billion in direct labor

income and $29.2 billion in direct value added).

2. It is little wonder, then, that the D.C. Circuit’s

opinion made a point to name Louisiana in questioning “the effects of increased crude oil refining on Gulf

Coast communities in Louisiana and Texas,” Pet. App.

12a—these communities are the backbone of America’s fuel. Nor is it any wonder that Respondent Center

for Biological Diversity named Louisiana in complaining to the D.C. Circuit that “half the oil production increase—up to 175,000 barrels/day—would be delivered to Houston and/or Port Arthur, Texas, and another 35 percent to the Louisiana Gulf Coast,” Pet.

App. 30a—Respondent’s mission is to shut the whole

thing down, damaging Louisiana’s economy and injuring America’s livelihood in the process.

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This is not right. By forcing the Surface Transportation Board to consider wildly distant effects of crude

oil refining in Baton Rouge—1,536 miles from the

Uinta Basin—the D.C. Circuit’s decision compels untold delays while the agency attempts to figure out

how to regulate Louisiana activities based on a Utah

project. See Environmental Impact Statement Timelines (2010-2018), COUNCIL ON ENVIRONMENTAL QUALITY (June 12, 2020), https://tinyurl.com/yrrtuaz3 (finding that the average NEPA environmental impact

statement completion time across all federal agencies

was four-and-a-half years). And that’s exactly Respondent’s gambit: Fight a war of attrition, where the

attrition is delay upon delay that chokes economic development and livelihood in States across the country.

That is an affront to States like Louisiana that serve

as America’s energy backbone, and to our citizens

whose livelihood depends on working energy jobs and

reaping their benefits. The Court should swiftly and

resoundingly reverse.

CONCLUSION

The Court should reverse the judgment below.

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Respectfully submitted,

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

KELSEY L. SMITH

Deputy Solicitor General

CAITLIN A. HUETTEMANN

Assistant Solicitor General

Counsel for Amicus Curiae State of Louisiana

(additional counsel listed below)

September 4, 2024

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ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

MICHAEL T. HILGERS

Attorney General

State of Nebraska

TREG TAYLOR

Attorney General

State of Alaska

DREW H. WRIGLEY

Attorney General

State of North Dakota

TIM GRIFFIN

Attorney General

State of Arkansas

DAVE YOST

Attorney General

State of Ohio

ASHLEY MOODY

Attorney General

State of Florida

GENTNER DRUMMOND

Attorney General

State of Oklahoma

CHRISTOPHER M. CARR

Attorney General

State of Georgia

ALAN WILSON

Attorney General

State of South Carolina

RAÚL R. LABRADOR

Attorney General

State of Idaho

MARTY JACKLEY

Attorney General

State of South Dakota

THEODORE E. ROKITA

Attorney General

State of Indiana

JONATHAN SKRMETTI

Attorney General

State of Tennessee

BRENNA BIRD

Attorney General

State of Iowa

KEN PAXTON

Attorney General

State of Texas

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RUSSELL COLEMAN

Attorney General

State of Kentucky

JASON MIYARES

Attorney General

State of Virginia

LYNN FITCH

Attorney General

State of Mississippi

PATRICK MORRISEY

Attorney General

State of West Virginia

ANDREW BAILEY

Attorney General

State of Missouri

BRIDGET HILL

Attorney General

State of Wyoming

AUSTIN KNUDSEN

Attorney General

State of Montana