Motion for divided argument — United States Steel Corporation, Applicant v. Environmental Protection Agency, et al.

Nos. 23A349, 23A350, 23A351, 23A384

In the Supreme Court of the United States

___________________________________

OHIO, ET AL., Applicants

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents

_______________________________________________________

KINDER MORGAN, INC., ET AL., Applicants

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents

_______________________________________________________

AMERICAN FOREST & PAPER ASSOCIATION, ET AL., Applicants

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents

_______________________________________________________

UNITED STATES STEEL CORPORATION, Applicant

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents

_______________________________________________________

ON APPLICATION FOR STAY OF ADMINISTRATIVE ACTION TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________________________________________________________________________________________

JOINT MOTION FOR DIVIDED ARGUMENT

______________________________________________________________________________________________________________

DAVE YOST

Attorney General of Ohio

MATHURA J. SRIDHARAN*

* Counsel of Record

ZACHERY P. KELLER

Deputy Solicitors General

30 E. Broad St., 17th Floor

Columbus, OH 43215

(614) 466-8980

Mathura.Sridharan@OhioAGO.gov

Counsel for the State of Ohio

(Additional counsel listed on signature block)

Pursuant to Rules 21 and 28.4, the applicants in case 23A349 (“the State Applicants”) and the applicants in cases 23A350, 23A351, and 23A384 (“the Industry

Applicants”) jointly move for divided argument. The applicants request to evenly

divide their 30 minutes of argument time, with each applicant group receiving 15

minutes. Although the Industry Applicants filed three separate applications and are

represented by numerous counsel, they have agreed to a single counsel to represent

all Industry Applicants at oral argument before this Court. The State Applicants,

who filed a single application, will also be represented by single counsel at oral argument before this Court.

1. The two groups of applicants have been represented by different counsel

throughout this litigation. They each filed separately in the courts of appeals and

they each separately sought relief from this Court.

2. Although generally aligned, the State Applicants and the Industry Applicants have distinct interests in this case. Both groups seek a stay to prevent irreparable injury from spending immense and un-recoupable amounts of money, time, and

other resources complying with an unlawful federal mandate. The States, in addition, seek a stay to protect their industries, their citizens, and their own operations

from potential electricity shortages because the challenged regulation threatens to

undermine the States’ electricity-generation capacity. And, because the challenged

rule upended the system of cooperative-federalism that Congress enshrined in the

Clean Air Act, the State Applicants seek a stay to prevent any further injury to the

States’ sovereign authority to regulate air quality within their borders.

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The Industry Applicants include businesses in industries critical to the nation’s power generation, manufacturing, and defense. They are collectively responsible for more than a trillion dollars annually of economic activity in the country and

separately seek a stay to prevent irreparable injury to their businesses.

3. The State Applicants and Industry Applicants also advance different arguments germane to their specific interests in obtaining a stay. The State Applicants

argued in their stay application that the rule in its current form places States subject

to it at a competitive disadvantage. State Appl.20–21. For this and other reasons,

including that the EPA imposed top-down control over the nation’s air quality, the

States argued that the challenged regulation injures their sovereign authority for

every day it remains in effect. State Appl.26.

The Industry Applicants did not raise these arguments in their stay application. They, however, argue in their stay applications that their industries were unlawfully selected for regulation for the first time in decades or being regulated in a

manner that unjustifiably departs from EPA’s prior regulations. See Kinder Morgan

Appl.13–23; AFPA Appl.20–24; U.S. Steel Corp. Appl.20–23. The State Applicants

did not raise those arguments in their stay application filed with this Court.

4. In sum, the two groups of applicants have been consistently represented by

different attorneys, have distinct interests, and have made different arguments, such

that neither group can represent fully the interests of the other.

5. This Court often allows private and government entities to divide argument.

See, e.g., Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 142 S. Ct. 661 (2021); United States

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v. Texas, 142 S. Ct. 416 (2021); Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 140 S. Ct. 2367 (2020); Dep’t of Homeland Security v. Regents of the

Univ. of Cal., 140 S. Ct. 1891 (2020); Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights

Comm’n, 138 S. Ct. 1719 (2018). Allowing the State and Industry Applicants to argue

in this case would enable the Court to hear from two groups with distinct insights on

a matter of exceptional importance to States, business, public welfare, and our federalist structure.

6. For all the reasons discussed above, the State and Industry Applicants believe that allowing both groups of applicants to participate in oral argument would

materially aid in the resolution of this case. Therefore, they jointly move to divide

evenly their 30 minutes of argument time.

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Respectfully submitted,

THEODORE E. ROKITA

Attorney General of Indiana

DAVE YOST

Ohio Attorney General

JAMES A. BARTA

Solicitor General

Office of the Indiana Attorney General

IGC-South, Fifth Floor

302 West Washington Street

Indianapolis, IN 46204

(317) 232-0709

James.Barta@atg.in.gov

MATHURA J. SRIDHARAN*

*Counsel of Record

ZACHERY P. KELLER

Deputy Solicitors General

30 E. Broad St., 17th Fl.

Columbus, Ohio 43215

614-466-8980

Mathura.Sridharan@OhioAGO.gov

Counsel for State of Indiana

Counsel for State of Ohio

PATRICK MORRISEY

Attorney General of West Virginia

CATHERINE E. STETSON

Hogan Lovells US LLP

555 Thirteenth Street, N.W.

Washington, DC 20004

(202) 637-5600

cate.stetson@hoganlovells.com

LINDSAY S. SEE

Solicitor General

MICHAEL WILLIAMS

Principal Deputy Solicitor General

Office of the West Virginia

Attorney General

State Capitol, Bldg 1, Room E-26

Charleston, WV 25305

(682) 313-4550

Lindsay.S.See@wvago.gov

ANA MARIA GUTIÉRREZ

MICHAEL D. MILLER

Womble Bond Dickinson (US) LLP

2001 K St NW

Washington, DC 20006

Counsel for State of West Virginia

Counsel for Kinder Morgan, Inc.

ERIC D. MCARTHUR

Sidley Austin LLP

1501 K St NW

Washington, DC 20005

BRITTANY M. PEMBERTON

Bracewell LLP

2001 M Street, N.W.

Suite 900

Washington, DC 20036

Counsel for the Interstate Natural Gas

Association of America and American

Petroleum Institute

Counsel for TransCanada PipeLine

USA Ltd.

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DAVID M. FLANNERY

KATHY G. BECKETT

KEELEIGH S. HUFFMAN

Steptoe & Johnson, PLLC

707 Virginia Street, East

Post Office Box 1588

Charleston, WV 25326

(304) 353-8000

Dave.Flannery@steptoe-johnson.com

Kathy.beckett@steptoe-johnson.com

LAURA K. MCAFEE

Beveridge & Diamond, PC

201 North Charles Street, Suite 2200

Baltimore, MD 21201

Counsel for Enbridge (U.S.) Inc.

MICHAEL B. SCHON

LEHOTSKY KELLER COHN LLP

200 Massachusetts Ave NW

Washington, DC 20001

(512) 693-8350

mike@lkcfirm.com

EDWARD L. KROPP

Steptoe & Johnson PLLC

PO Box 36425

Indianapolis, Indiana 46236

317-946-9882

Skipp.kropp@steptoe-johnson.com

MITHUN MANSINGHANI

Lehotsky Keller Cohn LLP

629 W. Main St.

Oklahoma City, OK 73102

(512) 693-8350

mithun@lkcfirm.com

Counsel for American Forest & Paper

Association and Midwest Ozone Group

Counsel for National Mining Association

JONATHAN Y. ELLIS

ALLISON D. WOOD

MAKRAM B. JABER

McGuireWoods LLP

888 16th Street N.W., Suite 500

Black Lives Matter Plaza

Washington, DC 20006

jellis@mcguirewoods.com

awood@mcguirewoods.com

mjaber@mcguirewoods.com

aflynn@mcguirewoods.com

JOHN D. LAZZARETTI

Squire Patton Boggs (US) LLP

1000 Key Tower

127 Public Square

Cleveland, OH 44114

216.479.8350

john.lazzaretti@squirepb.com

Counsel for United States Steel Corporation

Counsel for America’s Power, Associated

Electric Cooperative, Inc., Deseret Power

Electric Cooperative, the National Rural

Electric Cooperative Association, Ohio

Valley Electric Corporation, the Portland

Cement Association, Wabash Valley Power

Alliance

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