Petition for Writ of Certiorari — Ohio, et al., Petitioners v. Environmental Protection Agency, et al.

No. 24-____

In the Supreme Court of the United States

______________________________

STATE OF OHIO, ET AL.

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

Ohio Solicitor General

*Counsel of Record

MATHURA J. SRIDHARAN

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

thomas.gaiser@ohioago.gov

Counsel for Petitioner

State of Ohio

(additional counsel listed at the end)

QUESTION PRESENTED

It is a “basic” principle of administrative law that

“[a]n agency must defend its actions based on the reasons it gave when it acted.” Dep’t of Homeland Sec. v.

Regents of the Univ. of Cal., 591 U.S. 1, 24 (2020). This

well-established rule, first articulated in SEC v.

Chenery Corp., 318 U.S. 80, 87 (1943), prevents courts

from considering an agency’s belated justifications for

its decisions.

The Clean Air Act doubly protects against the risk

of post-hoc justifications proscribed under Chenery by

closing the administrative record to information and

explanations added after rule promulgation. It limits

the administrative record “exclusively” to specified

materials compiled from rule proposal to finalization

that support the EPA’s bases for its action. 42 U.S.C.

§7607(d)(7)(A). And it forbids courts from considering

anything that “has not been placed in the docket as of

the date of [the rule’s] promulgation.” 42 U.S.C.

§7607(d)(6)(C). The Act thus forces the EPA to defend

its actions on the materials included in the administrative record at promulgation.

However, before conducting merits review on the

administrative record at promulgation, the D.C. Circuit remanded the record back to the EPA, allowing

the Agency to supplement the record with new materials in an effort to cure a rulemaking defect identified

by this Court on emergency review. See Ohio v. EPA,

144 S. Ct. 2040 (2024).

The Question Presented is: whether the Clean Air

Act permits remand to the EPA to supplement the administrative record with new information and justifications after a rule is promulgated.

ii

LIST OF PARTIES

The petitioners are the States of Ohio, Indiana,

Kentucky, and West Virginia.

The respondents are the U.S. Environmental Protection Agency and Michael S. Regan, Administrator

of the U.S. Environmental Protection Agency.

Intervenors below are City Utilities of Springfield,

Missouri; City of New York; Commonwealth of Massachusetts; Commonwealth of Pennsylvania; District

of Columbia; Harris County, Texas; State of Connecticut; State of Delaware; State of Illinois; State of Maryland; State of New Jersey; State of New York; State

of Wisconsin; Air Alliance Houston; Appalachian

Mountain Club; Center for Biological Diversity; Chesapeake Bay Foundation; Citizens for Pennsylvania’s

Future; Clean Air Council; Clean Wisconsin; Downwinders at Risk; Environmental Defense Fund; Louisiana Environmental Action Network; Sierra Club;

Southern Utah Wilderness Alliance; Utah Physicians

for a Healthy Environment; and Midwest Ozone

Group.

iii

LIST OF DIRECTLY RELATED PROCEEDINGS

This case began as petitions for review in the D.C. Circuit. That case is Utah, et al. v. EPA, et al., Nos. 231157, 23-1181, 23-1183, 23-1190, 23-1191, 23-1193,

23-1195, 23-1199, 23-1200, 23-1201, 23-1202, 23-1203,

23-1205, 23-1206, 23-1207, 23-1208, 23-1209, 23-1211,

23-1306, 23-1307, 23-1314, 23-1315, 23-1316, 23-1317.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PARTIES .....................................................ii

LIST OF DIRECTLY RELATED

PROCEEDINGS .................................................. iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 5

JURISDICTIONAL STATEMENT ............................ 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................... 5

STATEMENT .............................................................. 6

REASONS FOR GRANTING THE WRIT ............... 17

I.

The D.C. Circuit violated both Congress’s

and this Court’s directives by allowing the

EPA to add new information and

justifications to the record after rule

promulgation. .............................................. 17

A.

Congress in the Clean Air Act doubly

protected against potential Chenery

violations by directing courts to review

agency

action

on

a

closed

administrative record that may not be

changed after rule promulgation. .......... 19

B.

Mid-litigation remand to supplement

the record erases reversal as a remedy

available under the statute. .................. 21

v

II.

This case presents the best opportunity to

answer the important but often

overlooked Question Presented. ................. 22

A.

This case raises an issue of great

importance. ............................................. 23

B.

Because questions about remand

under the Act are often overlooked, the

posture in which this case arises

presents a rare opportunity to address

a critically important question. ............. 24

III. Other reasons counsel this Court to

review the Question Presented now. .......... 25

A.

This Court should review this issue

now rather wait until the D.C. Circuit

renders a decision on the merits. .......... 25

B.

A circuit split on the Question

Presented is unlikely to manifest

because challenges under the Clean

Air Act often go to the D.C. Circuit. ...... 27

CONCLUSION.......................................................... 29

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................. 28

Am. Textile Mfrs. Inst. v. Donovan,

452 U.S. 490 (1981) ............................................... 8

Andrus v. Texas,

142 S. Ct. 1866 (2022) ......................................... 21

Bartenwerfer v. Buckley,

598 U.S. 69 (2023) ............................................... 19

Bond v. United States,

572 U.S. 844 (2014) ............................................... 1

Bowen v. Georgetown Univ. Hospital

(Nov. 28, 1988) ..................................................... 18

Camp v. Pitts,

411 U.S. 138 (1973) ............................................... 8

Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) ............................................. 28

Citizens to Preserve Overton Park, Inc.

v. Volpe,

401 U.S. 402 (1971) ............................................... 8

Corner Post, Inc. v. Bd. of Governors of

the Fed. Rsrv. Sys.,

144 S. Ct. 2440 (2024) ........................................... 8

vii

Dep’t of Homeland Sec. v. Regents of the

Univ. of Cal.,

591 U.S. 1 (2020) ....................2, 8, 9, 10, 20, 21, 27

EME Homer City Generation, LP v.

EPA,

795 F.3d 118 (D.C. Cir. 2015) ....................... 24, 27

Encino Motorcars, LLC v. Navarro,

584 U.S. 79 (2018) ................................................. 1

EPA v. Calumet Shreveport Refining,

LLC,

No. 23-1229 .......................................................... 23

EPA v. EME Homer City Generation,

L.P.,

572 U.S. 489 (2014) ............................................. 23

Franchise Tax Bd. v. Hyatt,

587 U.S. 230 (2019) ............................................... 1

Garland v. Ming Dai,

593 U.S. 357 (2021) ........................................... 7, 8

Horne v. Dep’t of Agric.,

576 U.S. 351 (2015) ............................................... 1

Massachusetts v. EPA,

549 U.S. 497 (2007) ............................................. 28

Michigan v. EPA,

576 U.S. 743 (2015) ......................................... 8, 23

National Rural Electric Cooperative

Association

v. EPA, 24A203 .................................................... 23

viii

North Carolina v. EPA,

550 F.3d 1176 (D.C. Cir. 2008)............................ 24

Ohio v. EPA,

144 S. Ct. 2040 (2024)

........................................ 1, 2, 4, 5, 6, 11, 12, 13, 14,

15, 16, 18, 19, 21, 23, 25, 26

Oklahoma v. EPA,

No. 23-1067 .......................................................... 23

Oklahoma, et al., v. EPA,

No. 24A213........................................................... 23

Rehaif v. United States,

588 U.S. 225 (2019) ............................................. 28

Rock Island, A. & L. R. Co. v. United

States,

254 U.S. 141 (1920) ............................................... 2

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ........ 2, 3, 7, 9, 10, 18, 19, 20, 27

SEC v. Chenery Corp.,

332 U.S. 194 (1947) ............................................. 20

Sibbald v. United States,

37 U.S. 488 (1838) ............................................... 21

Sierra Club v. Johnson,

541 F.3d 1257 (11th Cir. 2008) ........................... 23

St. Regis Paper Co. v. United States,

368 U.S. 208 (1961) ............................................... 2

ix

T-Mobile S., LLC v. City of Roswell,

574 U.S. 293 (2015) ............................................... 8

Train v. Natural Resources Defense

Council, Inc.,

421 U.S. 60 (1975) ................................................. 6

Utah v. EPA,

2024 U.S. App. LEXIS 23314 (D.C.

Cir. Sept. 12, 2024) ................................................ 5

Utah v. EPA,

No. 23-1157 .......................................................... 16

Util. Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ............................................. 23

West Virginia, et al. v. EPA,

No. 24-1120 (D.C. Cir.) ........................................ 24

West Virginia, et al., v. EPA,

No. 24A95............................................................. 23

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................. 23

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................. 23

Statutes and Rules

80 Fed. Reg. 65,292 (Oct. 26, 2015) .......................... 11

87 Fed. Reg. 20,036 (Apr. 6, 2022) ........................... 12

88 Fed. Reg. 9,336 (Feb. 13, 2023) ........................... 13

88 Fed. Reg. 36,654 (June 5, 2023) ...................... 5, 13

x

89 Fed. Reg. 23,526 (2024) ....................................... 15

28 U.S.C. §1254 ........................................................... 5

28 U.S.C. §2101 ........................................................... 5

42 U.S.C. §7401 ......................................................... 23

42 U.S.C. §7409 ........................................................... 6

42 U.S.C. §7410 ............................................... 6, 11, 13

42 U.S.C. §7607 ................... 1, 3, 4, 5, 7, 10, 11, 15, 18,

19, 20, 21, 28

Other Authorities

Administrative Law-Environmental

Law-Remedies—D.C. Circuit

Upholds Vacatur and Remand of

Dakota Access Pipeline Easement,

Reverses District Court Order to

Cease Pipeline Operations.—

Standing Rock Sioux Tribe v. U.S.

Army, 135 Harv. L. Rev. 1688 (2022) ................. 17

Christopher J. Walker, Against

Remedial Restraint in

Administrative Law, 117 Colum. L.

Rev. Online 106 (2017) ........................................ 17

Clean Air Act Amendments of 1977,

Pub. L 95–95, 91 Stat 685 (1977) ........................ 10

Clean Air Amendment of 1970, Pub. L.

91-604, 84 Stat. 1676 (1970) ................................. 8

xi

H.R. Rep. No. 95-294 (1977) ..................................... 10

John Harrison, Remand Without

Vacatur and the Ab Initio Invalidity

of Unlawful Regulations in

Administrative Law, 48 B.Y.U. L.

Rev. 2077 (2023) .................................................. 17

Mot. in Utah v. EPA, No. 23-1157, etc.

(D.C. Cir. Aug. 5, 2024) ....................................... 27

Ronald M. Levin, “Vacation” at Sea:

Judicial Remedies and Equitable

Discretion in Administrative Law, 53

Duke L.J. 291 (2003) ..................................... 17, 18

Webster’s New World Dictionary (2d

College Ed. 1976) ................................................. 19

William F. Pedersen, Jr., Formal

Records and Informal Rulemaking,

85 Yale L.J. 38 (1975) ...................................... 9, 10

INTRODUCTION

Some cases return to this Court on unfinished

business. See, e.g., Franchise Tax Bd. v. Hyatt, 587

U.S. 230 (2019); Encino Motorcars, LLC v. Navarro,

584 U.S. 79 (2018); Horne v. Dep’t of Agric., 576 U.S.

351 (2015); Bond v. United States, 572 U.S. 844 (2014).

This case returns on business that should have been

finished by now. The facts are no doubt familiar: the

EPA promulgated a regulation—a federal-implementation plan—governing twenty-three States’ air-quality obligations without considering an important aspect of the problem: “What happens—as in fact did

happen—when many of the upwind States fall out” of

the federal plan. Ohio v. EPA, 144 S. Ct. 2040, 2053

(2024). This Court stayed the plan a few months ago

pending review on the merits in the D.C. Circuit. Id.

at 2053–54. Should the States prevail on the merits

“on the existing record,” this Court held, they would

be “entitled” to “revers[al].” Id. at 2055 n.11, 2054

(quoting §7607(d)(9)) (alteration in original).

With the federal plan stayed, the only remaining

business for the D.C. Circuit was to look at the existing administrative record on the merits and either

confirm the Supreme Court’s prediction that the

States would prevail, reversing the plan, or deny the

prediction, sustaining the plan. But the EPA was determined to protect its defective plan from reversal.

In the first of two attempts to avoid review of the existing record and reversal, the Agency tried to create

a super administrative record—complete with posthoc justifications for why the twenty-three-state federal plan still worked for the then-remaining eleven

States—by consolidating a record created after the

rule was promulgated with the existing one. But this

Court had been presented with that option at the stay-

2

stage and determined that the option was foreclosed

because “the Clean Air Act prevents” courts “from consulting” such “explanations and information offered

after the rule’s promulgation.” Id. at 2055 n.11. So

constrained, the court below had no option but to reject the EPA’s attempt to end-run the statute and this

Court’s directive.

Undeterred, the EPA tried once more. This time,

the Agency asked the D.C. Circuit to remand the case

back to the Agency to supplement the administrative

record with new justifications for the federal plan. At

that point, recall that no court had addressed the merits of this case on the record promulgated with the final rule. Nevertheless, the D.C. Circuit acquiesced,

permitting the EPA to supplement the administrative

record without affording so much as an opportunity

for affected parties to comment on the additions to the

record.

The EPA’s choice to “cut[] corners,” with the D.C.

Circuit’s blessing, is fatal to its case. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 24

(2020). Indeed, this Court has long held that the People must “‘turn square corners when they deal with

the Government,’” and the Government must reciprocate in kind by “‘turn[ing] square corners in dealing

with the people.’” Id. (first quoting Rock Island, A. &

L. R. Co. v. United States, 254 U.S. 141, 143 (1920)

(Holmes, J.), then quoting St. Regis Paper Co. v.

United States, 368 U.S. 208, 229 (1961) (Black, J., dissenting)). To that end, it is a “basic” rule of administrative law that “[a]n agency must defend its actions

based on the reasons it gave when it acted.” Id.; SEC

v. Chenery Corp., 318 U.S. 80, 84 (1943). Agencies

may not offer belated justifications for their decisions.

Chenery, 318 U.S. at 87–88.

3

The Clean Air Act doubly protects against the risk

of these post-hoc justifications proscribed under

Chenery. It limits the administrative record for judicial review “exclusively” to the materials supporting

the agency’s bases for the rule from proposal through

promulgation. 42 U.S.C. §7607(d)(7)(A). And it restricts judicial review to the materials placed in the

record “as of the date of such promulgation.”

§7607(d)(6)(C). These statutory guardrails close the

administrative record to later-added information and

explanations, thus protecting against the risk that the

agency will insert belated justifications into the record

while judicial review is underway. These textual

guardrails answer the Question Presented: the Clean

Air Act does not permit remand back to the EPA to

supplement the administrative record with remedial

justifications for its action.

If there is a silver lining to the D.C. Circuit’s remand, it is this: the EPA’s maneuver presents the

best vehicle to answer this important, but often overlooked, question. The timing of the lower court’s remand—before any court has rendered a decision on

the merits of the existing record—strips the Question

Presented of any of its common camouflage. Usually,

courts remand to the EPA to supplement the administrative record after they decide that the EPA acted

unlawfully in promulgating a rule under the Act. In

other words, such remands function as a remedy. On

appeal, questions related to remedy are often overlooked because they are buried under the more-prominent questions about the lawfulness of the agency’s

decision. So, few petitions shine as clear a spotlight

as this case does on the Question Presented. This

Court should take this rare opportunity to address

this often overlooked but critically important issue.

4

And the Court’s answer will affect more than this sort

of pre-merits-review remand. It will also decide

whether courts may grant such remands at all, as they

often do, as a remedy for a rulemaking defect under

the Clean Air Act.

There are additional benefits to review now rather

than after the D.C. Circuit completes merits review on

a supplemented record. If the States are right on this

issue and the Court invalidates the remand on appeal

from a decision on the mixed record, the parties will

have wasted time supplementing and litigating over a

record later held partially invalid. The D.C. Circuit

would have to redo its analysis over a record available

now. Thus, unravelling the error later will waste

more time and resources than answering this question

now. And a petition after a decision on the merits will

also include questions involving the technical and

fact-intensive issues plaguing the challenges on the

merits. Review now avoids those technical issues and

allows the Court to focus on the pure legal question

presented in this petition.

Finally, the remand here could be seen by some to

defy this Court’s clear directive—to consider the merits of the agency’s action on the existing record—at the

emergency-review stage in this very case. But even if

the remand was in keeping with this Court’s decision

and did not violate the record-building provisions of

the Act, such a remand has one additional defect. It

erases the stated remedy under the Act (and the one

already identified by this Court for this case) for defective rulemaking: reversal of the agency’s action.

§7607(d)(9); see Ohio, 144 S. Ct. at 2054, 2055 n.11.

Put it this way: the court gave the EPA a chance to

rewrite its D- paper before grading had even begun.

The law allows no such second tries.

5

OPINIONS BELOW

This case originated in the D.C. Circuit. Ohio and

five other States, along with several industry groups,

petitioned this Court for review of a final rule promulgated by the Environmental Protection Agency entitled Federal “Good Neighbor Plan” for the 2015 Ozone

National Ambient Air Quality Standards. 88 Fed.

Red. 36,654 (June 5, 2024). After the D.C. Circuit denied the request of several petitioners to stay the federal plan, several petitioners sought and obtained a

stay from this Court. Ohio v. EPA, 144 S. Ct. 2040,

2058 (2024).

After this Court issued its stay and merits briefing

had been completed in the D.C. Circuit, the EPA

sought a partial remand of the case back to the

Agency. The D.C. Circuit granted the EPA’s request

and remanded the administrative record to the

Agency for supplementation. The decision of the court

of appeals is unpublished, but is available at Utah v.

EPA, 2024 U.S. App. LEXIS 23314 (D.C. Cir. Sept. 12,

2024); Pet. App. 2a.

JURISDICTIONAL STATEMENT

The D.C. Circuit granted the EPA’s request to remand the record back to the Agency. Pet. App. 2a.

This Petition timely invokes this Court’s jurisdiction

under 28 U.S.C. §1254 and 28 U.S.C. §2101.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following provisions are relevant to this case

and included in the appendix filed with this petition:

42 U.S.C. §7607(d).

6

STATEMENT

1. The Clean Air Act tasks the States and the federal Environmental Protection Agency with working

together to achieve the nation’s air-quality goals.

Among the various programs established by the Act,

the national ambient air quality standards program

tasks the EPA with identifying harmful pollutants

and establishing national air-quality standards.

§§7409(a)(1), (b)(1). The baton then passes to the

States, which have three years to design state-implementation plans to provide for the “implementation,

maintenance, and enforcement” of that standard in

their jurisdictions. §7410(a)(1). Among other legal requirements imposed by the Act, in their state-implementation plans, States must account for pollution

that travels beyond their borders into downwind

States. §7410(a)(2)(D)(i). Their plans must be designed to reduce in-state emissions that “contribute

significantly to nonattainment in, or interfere with

maintenance by, any other State” of the relevant airquality standard. §7410(a)(2)(D)(i)(I).

After the States submit their plans, the baton returns to the EPA. The EPA has “‘no authority to question the wisdom of a State’s choices of emission limitations.’” Ohio, 144 S. Ct. at 2048 (quoting Train v.

Natural Resources Defense Council, Inc., 421 U.S. 60,

79 (1975)). As long as a state plan meets the applicable requirements of the Act, the EPA must approve it

within 18 months of the State’s submissions.

§7410(k)(3); see §§7410(k)(1)(B), (k)(2). And only

when a state plan “falls short” can the EPA impose a

federal-implementation plan of its devise. §7410(c)(1).

2. The Clean Air Act also dictates the process by

which challenges to the EPA’s rulemaking must

7

proceed. 42 U.S.C. §7607. These judicial-review provisions allow litigants to bring challenges arising from

the just-discussed process of setting and implementing air-quality standards in federal courts of appeals,

often in the D.C. Circuit. §7607(b). For example, a

petition for review challenging the standards set under the three major Clean Air Act programs—the National Ambient Air-Quality Standard program, Hazardous Air Pollutants program, and New Source

Emissions Standards program—must be filed in the

D.C. Circuit Court of Appeals. §7607(b). “[N]ationally

applicable regulations” and actions “based on” the Administrator’s “determination of nationwide scope or

effect” must also be filed in the D.C. Circuit Court of

Appeals. Id.

The Act also provides explicit procedures for judicial review. Some background into this Court’s seminal decision in SEC v. Chenery Corp., 318 U.S. 80, 84

(1943) (Chenery I) is helpful to understand these procedures as they stand today. The dispute giving rise

to Chenery I is a familiar one. Briefly, the Securities

and Exchange Commission urged this Court to uphold

its final order on belated justifications on which it had

not based its original decision. This Court would not

sustain the order on the Commission’s post-hoc justifications, explaining that the Commission’s action

“must be measured by what the Commission did, not

by what it might have done.” Id. at 93–94. Put another way, the lawfulness of an agency’s actions must

be assessed “in light of the explanations [they] offered”

for their actions “rather than any ex post rationales a

court can devise.” Garland v. Ming Dai, 593 U.S. 357,

369 (2021). The holding in Chenery I—that “[a]n

agency must defend its actions based on the reasons it

gave when it acted”—has since become a “basic”

8

principle of administrative law. Regents, 591 U.S. at

24; see, e.g., Ming Dai, 593 U.S. at 369; Michigan v.

EPA, 576 U.S. 743, 758 (2015); T-Mobile S., LLC v.

City of Roswell, 574 U.S. 293, 301 (2015); Am. Textile

Mfrs. Inst. v. Donovan, 452 U.S. 490, 539 (1981);

Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419

(1971); Corner Post, Inc. v. Bd. of Governors of the Fed.

Rsrv. Sys., 144 S. Ct. 2440, 2479 (2024) (Jackson, J.,

dissenting) (explaining that the Court’s administrative-law jurisprudence disallows courts from considering what happened after rulemaking completed).

The first iteration of the Act’s judicial-review procedures largely ignored the problems warned of in

Chenery I. Clean Air Amendment of 1970, Pub. L. 91–

604, §12(a), 84 Stat. 1676, 1707–08 (1970) (§307). As

enacted in 1970, the judicial-review provision allowed

“any party,” including the EPA, to seek leave to amend

the administrative record with new evidence while judicial review is underway. Id. at §307(c). That provision also allowed the Administrator of the EPA to then

“modify” his findings, “make new findings” and to “file

such modified or new findings, and his recommendation, if any, for the modification or setting aside of his

original determination” based on the new evidence

added to the record. Id. In other words, the first iteration of the judicial-review provisions did not require

that judicial review be conducted over a closed administrative record. The record could be supplemented at

any time during the judicial-review process.

Operating in this manner proved unworkable.

Five years after the provision was enacted, a veteran

attorney for the EPA criticized the “chaos” that the

provision’s open approach to record-building created.

He, in turn, proposed a process for building

9

administrative records that would be closed by the

time the records are certified to reviewing courts. William F. Pedersen, Jr., Formal Records and Informal

Rulemaking, 85 Yale L.J. 38, 70 (1975). Among his

criticisms for the state of affairs at that time, Pedersen explained that “the open ended and disorganized

way in which rulemaking records [were] compiled,” id.

at 71, encouraged courts to violate the principle established in Chenery I—that is, that an agency may not

defend its decisions in court on post-hoc justifications

either of its own or of its counsel during litigation. See

Chenery I, 318 U.S. at 94; Regents, 591 U.S. at 23.

Pedersen observed that the Act’s open approach of

iterative record building while judicial review was underway encouraged everyone to circumvent Chenery.

The EPA could supplement administrative records after rulemaking had closed, doing violence to the “historical” principle that courts review records explaining “what the agency actually weighed and evaluated

in some manner at the time of the rulemaking.” Id. at

65. Agency counsel too could inject their litigation rationales into the ever-changing administrative record

even if their litigation rationales had not formed the

basis for the Agency’s actions. Id. at 65 n.105. The

Chenery problems did not end with the Agency. The

original Act encouraged courts to search for their own

bases to uphold favored rulemaking, even if the

Agency had not relied on them. Id. at 70–73. And

both parties—litigants and the agency alike—encouraged the court’s “tendency” to circumvent Chenery by

finding ways to cite and discuss records found nowhere in the record at the time the rule was promulgated. Id. at 72. To resolve this problem, Pedersen

proposed a closed record-building process beginning

with materials supporting the Agency’s basis for

10

proposing a rule, adding the comments, critiques, and

data offered by affected parties in the comment period,

and ending with materials supporting the final rule at

promulgation. Id. at 87. Under his proposed process,

“when judicial review began, the record would be

closed.” Id.

Pedersen’s views proved highly influential. In

1977, Congress amended the Act’s judicial-review

statute. Clean Air Act Amendments of 1977, Pub. L

95–95, 91 Stat 685, 772–77 (1977) (§305). The House

Report on the 1977 Amendments to the Clean Air Act

acknowledged that these amendments were “[b]y and

large,” “a legislative adoption of the suggestions for a

rulemaking record set forth” by Pedersen. H.R. Rep.

No. 95-294, at 319 (1977) (citing Pedersen, Formal

Records and Informal Rulemaking, 85 Yale L.J. 38).

The amendments to the judicial-review provisions

added the double protections present in the Act today

against the Chenery concerns raised by Pedersen.

One provision prevents the “promulgated rule” from

being based (in part or in whole) on any information

or data which has not been placed in the docket “as of

the date of such promulgation.” §7607(d)(6)(C); see 91

Stat 775. This forecloses courts from reviewing anything added to the record after rule promulgation. Another provision states that “[t]he record for judicial review shall consist exclusively of” several different

components relevant to the proposal, comment period,

and finalization stages of rulemaking. §7607(d)(7)(A);

see 91 Stat 775. The record must include materials

associated with the proposed rule, including the proposed rule’s statement of basis and purpose summarizing the data, methods, and the major legal interpretations and policy considerations. §7607(d)(3)(A)–(C).

Those materials must include all supporting data,

11

information, and documents “included in the docket

on the date of publication of the proposed rule.”

§7607(d)(3). The record also must include evidence

collected during the comment period, including the

comments received and transcripts of any public hearings held on the proposed rule. §7607(d)(4)(B)(i).

Last, the record must include everything associated

with the final rule, such as the statement of basis and

purpose for the final rule, an explanation of the reasons for any major changes from the proposed rule,

and responses to major comments, criticisms, and new

data submitted during the comment period.

§7607(d)(6)(A)–(B). After promulgation, the recordbuilding period closes. By the time judicial review is

underway, the administrative record on review is thus

doubly closed to new information or explanations collected or created after promulgation.

On review of the record at promulgation, courts

may “reverse” actions that they find are “arbitrary, capricious, an abuse of discretion,” unconstitutional, in

“excess” of the EPA’s statutory authority, or otherwise

unlawful. §7607(d)(9).

3. This case arises from the EPA’s most recent effort to tackle interstate air pollution. In October 2015,

the EPA reduced the national ambient air-quality

standard for ozone from 75 to 70 parts per billion. 80

Fed. Reg. 65,292, 65,301 (Oct. 26, 2015). That change

triggered the States’ obligation to update their stateimplementation plans. §7410(a)(1). The EPA told the

States that they would have “flexibility” in addressing

their good-neighbor obligations. Ohio, 144 S. Ct. at

2049 (citations omitted). Armed with that assurance,

many States submitted state-implementations plans

with only modest updates, concluding they would not

need to adopt additional emissions-control measures

12

to satisfy their good-neighbor obligations. The States

offered many reasons for their conclusions, including

that they were not contributing to downwind air-quality problems and that they could not identify additional cost-effective methods of controlling the emissions beyond those they were currently employing. Id.

Other States did not submit state-implementation

plans.

After sitting on the States’ submissions well past

its statutory obligation to act on them, the EPA suddenly announced, on a single day, its intent to disapprove nineteen States’ plans, including those of Ohio,

Indiana, West Virginia, and Kentucky. Id. (citations

omitted). Several months later it proposed to disapprove four more States’ plans. Less than two months

later, and while public comment on the proposed

state-plan disapprovals was still open, the EPA proposed a single federal-implementation plan that

would impose substitute obligations on States without

valid state-implementation plans—including Ohio,

Indiana, West Virginia, and Kentucky—either because the EPA had rejected it or the State had failed

to submit one. 87 Fed. Reg. 20,036, 20,038 (Apr. 6,

2022). This federal plan took a coordinated approach

to apportioning the responsibility of reducing emissions “collectively” among “contributing upwind

states” in an “efficient and equitable” manner. Id. at

20,076 (quotation omitted); see Ohio, 144 S. Ct. at

2049–51.

To do so, the EPA selected “measures” for each

emissions-source category that “would maximize costeffectiveness in achieving downwind ozone air quality

improvements,” by “focus[ing]” on the “knee in the

curve, or the point at which more expenditures in the

upwind States were likely to produce very little in the

13

way of additional emissions reductions and air quality

improvement downwind.” Ohio, 144 S. Ct. at 2050

(quotations and internal quotation marks omitted and

alterations accepted).

Commenters warned the EPA against taking this

coordinated approach. Many commenters believed

and noted that the EPA’s disapprovals of the state

plans were legally flawed. Id. (collecting comments).

And, because an operative state-plan disapproval is

the legal predicate for the EPA’s authority to impose

a federal-implementation plan in a particular State,

see §7410(c)(1), that meant the EPA would lack authority to impose its federal plan on States where litigation had paused the EPA’s state-plan disapproval in

that State. So, “if the [federal plan] did not wind up

applying to all 23 States as EPA envisioned, commenters argued, the agency would need ‘to conduct a new

assessment and modeling of contribution and subject

those findings to public comment.’” Ohio, 144 S. Ct. at

2050 (citing as examples Comments of Air Stewardship Coalition 13–14 (June 21, 2022) and Comments

of Portland Cement Association 7 (June 21, 2022)).

Nevertheless, the EPA pressed on. It first disapproved, en masse, twenty-one States’ plans (two, in

part) in February of 2023. 88 Fed. Reg. 9,336 (Feb. 13,

2023). Many States took to the courts over that action.

Quickly, the commenters’ warnings were “vindicate[d].” Ohio, 144 S. Ct. at 2051. Within months, in

May, two circuits stayed the state-plan disapprovals

of four of the States covered by the proposed federal

plan, precluding the EPA from enforcing the federal

plan on them. Id. (citations omitted). But the EPA

continued, finalizing the federal plan for all twentythree States despite knowing that the plan would not

cover all of them as originally contemplated. 88 Fed.

14

Reg. 36,654 (June 5, 2023). After that, the EPA

continued to receive bad news. Courts around the

country continued to stay the EPA’s state-plan

disapprovals. Because each new stay precluded the

EPA from enforcing the federal-implementation plan

on that State, the twenty-three state group over which

the federal plan was supposed to apply dwindled down

to eleven. See Ohio, 144 S. Ct. at 2051–52.

Several States and industry groups challenged the

federal plan in the D.C. Circuit arguing, among many

things, that the Rule should be reversed as arbitrary

and capricious for failing to consider whether and how

the coordinated, twenty-three state plan will apply to

any different mix of States. As part of the challenge,

they sought a stay of the federal plan. The D.C. Circuit denied the stay.

4. If this all sounds familiar to this Court, it

should. After the lower court denied a stay, several

state and industry petitioners sought a stay before

this Court. In a decision the Court acknowledged

hinged “ultimately” on the fact that the applicants are

“likely to prevail at the end of this litigation,” the

Court stayed the federal-implementation plan. Ohio,

144 S. Ct. at 2053.

The problem? The EPA adopted a plan premised

on full participation of all twenty-three upwind States

without considering the question, “[w]hat happens—

as in fact did happen—when many of the upwind

States fall out of the planned [federal plan] and it may

now cover only a fraction of the States and emissions

EPA anticipated?” Ohio, 144 S. Ct. at 2053–54. More

specifically, the EPA failed to consider whether “the

point at which emissions-control measures maximize

cost-effective downwind air-quality improvements”—

15

that is, the knee in the curve—“shift[s]” when “the mix

of states changes, … and their particular technologies

and industries drop out with them.” Ohio, 144 S. Ct.

at 2054 (quotation omitted). Based on the EPA’s failure to consider “an important aspect of the problem”

and to supply “a satisfactory explanation for its action,” the Court concluded that the applicants are

“likely to be entitled to” reversal. Ohio, 144 S. Ct. at

2054 (internal quotation marks omitted).

While proceedings on the stay applications before

this Court were ongoing, the EPA issued a document

in response to several petitions for reconsideration in

which it purported to provide further explanations

justifying the application of the twenty-three state

plan to the eleven then-remaining States. Ohio, 144

S. Ct. at 2055 n.11 (citing 89 Fed. Reg. 23,526 (2024)).

It notified this Court of that document. But the Court

explained that the Clean Air Act, specifically

§7607(d)(6)(C) and §7607(d)(7)(A), “prevents [the Supreme Court] (and courts that may in the future assess the [federal plan]’s merits) from consulting explanations and information offered after the rule’s promulgation.” Id. Rather, courts can only look to “the

grounds that the agency invoked when it promulgated

the” federal-implementation plan. Id. (internal quotation marks omitted). The Court reiterated that the

applicants are “entitle[d]” to “revers[al]” should they

show the Rule is arbitrary and capricious on the existing record. Id. (quoting §7607(d)(9)(A)).

5. Since then, the EPA has maneuvered to expand

the existing record. First, while merits briefing was

underway in the D.C. Circuit, the EPA tried to add to

the existing record a document it created after the federal plan was promulgated by consolidating several

appeals (and their respective administrative records)

16

from denials of petitions for reconsideration with this

challenge. Mot. in Utah v. EPA, No. 23-1157, etc.

(D.C. Cir. July 5, 2024) (ECF 2063227). The new document was the same one that the EPA offered to this

Court at the stay-stage, which purported to explain

that the twenty-three state plan works for the remaining eleven States and which this Court held was foreclosed from judicial review. See Ohio, 144 S. Ct. at

2055 n.11. The petitioners vigorously opposed the

EPA’s consolidation maneuver, arguing that it was an

improper end run around this Court’s directive that

the Act prevents courts from considering such explanations proffered after rule promulgation. Foreclosed

by that direct holding, the D.C. Circuit denied the

EPA’s request. Or. in Utah v. EPA, No. 23-1157, etc.

(D.C. Cir. July 30, 2024) (ECF 2067416).

Undeterred, the EPA tried again to get a second

bite at the apple. This time it was successful. Just

one day after merits briefing had completed in the

D.C. Circuit, the EPA notified petitioners that it

would be asking the court to partially remand the

Rule so it could “take a supplemental final action addressing the record deficiency preliminarily identified

by the Supreme Court.” Resp. in Utah v. EPA, No. 231157, etc., at 6 & n.5 (D.C. Cir. August 15, 2024) (ECF

2070323) (quoting Mot. in Utah v. EPA, No. 23-1157,

etc., at 1 (D.C. Cir. Aug. 5, 2024) (ECF 2068299)); Pet.

App. 26a (quoting Pet. App. 12a). Again, the petitioners opposed, arguing that the EPA must make its case

on the existing record and without supplemental explanations produced during litigation. Moreover, the

petitioners explained, should the court remand the

case back to the Agency, it must also vacate the Rule

because the remedy to which the States are “entitled”

under the Act is “reversal.” Ohio, 144 S. Ct. at 2054,

17

2055 n.11 (alteration accepted and quotation marks

omitted).

The D.C. Circuit disagreed with the petitioners.

Pet. App. 2a. In an unreasoned decision, the court remanded the record back to the Agency for curative

supplementation. Pet. App. 2a. The Court denied the

petitioners’ request to vacate the Rule should it be remanded back to the Agency. Pet. App. 2a. Now, the

consolidated cases are being held in abeyance indefinitely until the EPA finishes adding new information

and justifications to the record. Id.

REASONS FOR GRANTING THE WRIT

I.

The D.C. Circuit violated both Congress’s

and this Court’s directives by allowing the

EPA to add new information and

justifications to the record after rule

promulgation.

Whether courts may grant remands back to the

Agency to fix a defective rule while leaving it in place

is a hot topic. It has drawn the attention of academics

and jurists alike. See, e.g., John Harrison, Remand

Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, 48 B.Y.U.

L. Rev. 2077 (2023); Ronald M. Levin, “Vacation” at

Sea: Judicial Remedies and Equitable Discretion in

Administrative Law, 53 Duke L.J. 291 (2003); Administrative Law–Environmental Law-Remedies–D.C.

Circuit Upholds Vacatur and Remand of Dakota Access Pipeline Easement, Reverses District Court Order

to Cease Pipeline Operations.—Standing Rock Sioux

Tribe v. U.S. Army, 135 Harv. L. Rev. 1688, 1688

(2022); Christopher J. Walker, Against Remedial Restraint in Administrative Law, 117 Colum. L. Rev.

Online 106 (2017). Justice Scalia once even declared

18

in private correspondence that it would “buy[] grief to

suggest that a court may exercise its equitable discretion” to “leav[e] a regulation ‘not in accordance with

law’ in effect.” Levin, “Vacation,” at 352 (quoting letter from Justice Antonin Scalia to Justice Anthony

Kennedy regarding draft opinion in Bowen v.

Georgetown Univ. Hospital (Nov. 28, 1988)).

In the context of the Clean Air Act, however, that

debate has been settled. Such curative remands without vacatur are altogether unavailable to the EPA under the Clean Air Act, which disallows record supplementation after rule promulgation. Congress strictly

foreclosed the EPA from curing its rulemaking defects

by supplementing the administrative record with new

information or explanations after promulgation. The

Act mandates that the record on judicial review consist exclusively of materials collected and developed

through rule promulgation, and the Act restricts judicial review to that record alone. See 42 U.S.C.

§§7607(d)(6)(C), 7607(d)(7)(A). This closed-record process unique to the Act is more protective than

Chenery: it protects litigants from the risk that the

agency will insert belated justifications into the record

by way of record supplementation. See Chenery I, 318

U.S. at 87–88. This Court has already said as much,

albeit at a different stage of this case: that belated

record supplementations may not be considered as

part of the administrative record under the Act. Ohio,

144 S. Ct. at 2055 n.11.

Remanding for record supplementation before any

court has rendered a decision on the merits, as the

D.C. Circuit did here, violates the Clean Air Act in one

other way. It erases the remedy available under the

Act—reversal—by avoiding that outcome through iterative record building. §7607(d)(9). Again, this

19

Court spoke to that already at a prior stage of this

case. Ohio, 144 S. Ct. at 2054 & 2055 n.11. The remand at issue here thus violates both Congress’s statutory order and directly conflicts with this Court’s order in this very case.

A. Congress in the Clean Air Act doubly

protected against potential Chenery violations

by directing courts to review agency action on a

closed administrative record that may not be

changed after rule promulgation.

Under the Clean Air Act, courts must review

agency action on the administrative record fixed at the

time the rule was promulgated. §7607(d)(6)(C);

§7607(d)(7)(A). The reason why “start[s]” and ends

“with the text of the statute.” Bartenwerfer v. Buckley,

598 U.S. 69, 74 (2023) (internal quotation marks omitted).

Two provisions, §7607(d)(6)(C) and §7607(d)(7)(A),

define the record-building process for judicial review

under the Act. One specifies that the materials compiled during the rulemaking process through promulgation—that is, data, methods, legal and policy justifications, comments, and the Agency’s responses to

significant comments and criticisms—“exclusively”

make up the record for judicial review of any rulemaking under the Act. §7607(d)(7)(A) (emphasis added).

“Exclusively” carries the same ordinary meaning now

as it did when these provisions were enacted: “excluding or tending to exclude all others” and “being the

only one of its kind.” “Exclusive,” Webster’s New

World Dictionary 489 (2d College Ed. 1976). Simply

put, nothing collected or created after promulgation

counts. The other provision reinforces this conclusion

by confirming that the “promulgated rule may not be

20

based (in part or whole) on any information or data

which has not been placed in the docket as of the date

of such promulgation.” §7607(d)(6)(C) (emphases

added). Any regulation promulgated under the Act,

including the federal plan at issue here, must therefore stand or fall on the record at the time it was promulgated; data, analysis, explanations, and justifications considered or created after the rule is promulgated cannot be used to justify prior decisionmaking.

By limiting judicial review to a closed record fixed

at the time the Rule was promulgated, the Act twice

inoculates against the risk of a Chenery violation. Because the record on review consists exclusively of the

materials in the record at promulgation, courts may

not consider new explanations, justifications, or other

information belatedly supporting the agency’s action.

§§7607(d)(6)(C), 7607(d)(7)(A). After all, such iterative record building presents an opportunity for an

agency to “cut[] corners” by inserting belated justifications into the record. Regents, 591 U.S. at 24. That

means when the Agency commits a critical error during the rulemaking process under the Act, it must

“‘deal with the problem afresh’ by taking new agency

action.” Regents, 591 U.S. at 21 (quoting SEC v.

Chenery Corp., 332 U.S. 194, 201 (1947) (Chenery II)).

Only then can the agency develop new reasons and explanations, in compliance with the Act’s procedural

requirements. The legislative history of these provisions confirms that Congress intended to protect litigants from potential Chenery violations by forcing

courts to conduct review over fixed administrative records that are closed at the time of promulgation.

Above 8–11.

In this way, the Act is more protective than

Chenery and thus unique among statutes governing

21

judicial review of agency actions. Under the Administrative Procedure Act, for example, agencies may elaborate on their reasons for acting but they may not offer

new reasons. Regents, 591 U.S. at 21. The Clean Air

Act forecloses the agency from offering either by closing the record to all new additions. The Clean Air Act

is thus unique among administrative-review statutes.

B. Mid-litigation remand to supplement the

record erases reversal as a remedy available

under the statute.

The lower court’s mid-litigation remand for record

supplementation—that is, before a court even reviews

the agency’s decision on the existing record—reveals

yet another problem. Such remands facilitate iterative record building by allowing the EPA to continue

tinkering with its justifications for a rule until the

courts are satisfied. That practice, however, writes

out the remedy available under the Act—reversal.

§7607(d)(9). Indeed, if courts could continue to remand after every identified flaw so that the agency

can take corrective action, rulemaking would be iteratively improved until it passes muster in courts. Reversal would never be available.

What is more, permitting the EPA to engage in iterative record building, as the court below did, violates this Court’s directive. Recall that this Court held

the States are “entitle[d]” to “revers[al]” should they

ultimately prevail on the existing record. Ohio, 144 S.

Ct. at 2055 n.11 (quoting §7607(d)(9)). This directive

is not only precedent, but it also binds the court below

via “vertical stare decisis” and as the law of this case.

Andrus v. Texas, 142 S. Ct. 1866, 1867 (2022) (Sotomayor, J., dissenting from denial of certiorari); see

Sibbald v. United States, 37 U.S. 488, 492 (1838). A

22

grant of certiorari in this case would allow this Court

to protect its prior mandate and to give meaning to

reversal as a remedy under the statute.

II.

This case presents the best opportunity to

answer

the

important

but

often

overlooked Question Presented.

This case asks whether the Clean Air Act allows a

remand to the EPA to supplement the administrative

record with materials created after rule promulgation.

The answer to this question affects every challenge

arising under the Act, including many currently pending before the Court. Although the issue is an important aspect of every Clean Air Act challenge, it is

the focus of few appeals to this Court. That is because

such remands are usually granted as a remedy at the

end of a case, allowing the Agency to remediate defects

in rulemaking identified by a court after full merits

review. On appeal to this Court, questions about this

remedy are usually buried beneath more-prominent

merits questions.

Here, however, the timing of the lower court’s remand for record supplementation is unique. It was

granted before the court (or any court) had conducted

review on the merits of the federal plan on the existing

administrative record. Thus, this petition spotlights

this very important question and presents a rare opportunity for this Court to address it squarely. Answering it now, when it is cleanly presented, will give

clear guidance in this and other Clean Air Act challenges about the Act’s judicial-review processes.

23

A. This case

importance.

raises

an

issue

of

great

The correct interpretation of the Clean Air Act’s judicial-review provisions is one of immense importance.

For one thing, challenges under the Clean Air Act

are in and of themselves of national importance. The

Act “is a comprehensive regulatory scheme” for regulating national air pollution. Sierra Club v. Johnson,

541 F.3d 1257, 1260 (11th Cir. 2008) (citing 42 U.S.C.

§7401). Regulations under this Act not only set nationwide standards for air quality, but they also affect

the nation’s energy, manufacturing, transportation,

and other critical markets. Given the national impact

that regulations under the Act can have, disputes over

them are often vented before this Court. See, e.g.,

Ohio v. EPA, 144 S. Ct. 2040 (2024); West Virginia v.

EPA, 597 U.S. 697 (2022); Michigan, 576 U.S. 743;

Util. Air Regulatory Group v. EPA, 573 U.S. 302

(2014); EPA v. EME Homer City Generation, L.P., 572

U.S. 489 (2014); Whitman v. Am. Trucking Ass’ns, 531

U.S. 457 (2001). Reinforcing the practical and jurisprudential importance of questions arising under the

Act, several petitions for certiorari and applications

for a stay on challenges under Act that are, or were

recently, pending before this Court raise questions under the Act. See, e.g., Oklahoma v. EPA, No. 23-1067

(challenge arising from the Act’s venue requirements);

EPA v. Calumet Shreveport Refining, LLC, No. 231229 (same); Oklahoma, et al., v. EPA, No. 24A213

(challenging EPA’s methane-emissions Rule); National Rural Electric Cooperative Association v. EPA,

24A203 (challenging EPA’s mercury-and-air-toxics

Rule); West Virginia, et al., v. EPA, No. 24A95 (challenging EPA’s greenhouse-gas-emissions Rule).

24

The Question Presented is of heightened importance because the correct interpretation of the

Act’s judicial-review provisions has a direct effect on

every Clean Air Act challenge. Indeed, remands for

record supplementation of the sort in dispute here are

commonly granted as a remedy to rulemaking violations under the Act. See, e.g., North Carolina v. EPA,

550 F.3d 1176, 1178 (D.C. Cir. 2008); EME Homer City

Generation, LP v. EPA, 795 F.3d 118, 132 (D.C. Cir.

2015) (Kavanaugh, J.). Whether such remands should

be available under the Act thus affects most disputes

under the Act, including those that recently have

been, or will be, addressed by this Court and those

pending in the D.C. Circuit. See, e.g., West Virginia,

et al. v. EPA, No. 24-1120 (D.C. Cir.). An answer to

the Question Presented now will clarify in every Clean

Air Act challenge going forward whether courts may

allow curative remands at any stage of litigation and,

as often is the case, as a remedy under the Act for defective rulemaking.

B. Because questions about remand under

the Act are often overlooked, the posture in

which this case arises presents a rare

opportunity to address a critically important

question.

This case is the best vehicle to address the Question Presented because of the unique posture of this

appeal. Because remands for curative supplementation are usually granted as a remedy for rulemaking

violations after full merits review, the usual appeal to

this Court from the typical case focuses on merits

questions at the expense of the lurking remedy question on the legality of such remands. This Court is

thus presented with few opportunities to address this

25

overlooked issue in the mill-run Clean Air Act case

that comes before this Court.

The unique posture of this appeal provides that

rare opportunity. Here, the D.C. Circuit remanded

the record for supplementation before any court had

rendered a full decision on the merits of the existing

record. Thus, this case shines a spotlight on the oftoverlooked question of whether such remands violate

the Act sans the complications of the technical merits

issues underlying the challenge. This Court should

seize this rare opportunity to provide clarity on this

generally overlooked, but very important, question.

III.

Other reasons counsel this Court to

review the Question Presented now.

Several other features of this petition make it an

ideal vehicle to resolve the Question Presented.

A. This Court should review this issue now

rather wait until the D.C. Circuit renders a

decision on the merits.

Other reasons—particularly the timing and manner of the lower court’s remand—warrant review now

rather than after the D.C. Circuit renders a decision

on the merits.

Start with the timing. On the merits, this case is

“fact-intensive and highly technical” and requires reviewing courts to engage with a “voluminous, technical” record. Ohio, 144 S. Ct. at 2058, 2070 (Barrett,

J., dissenting). Should the Court wait to hear this

case until after the decision on the merits, the petition

will combine the discrete Question Presented here

with other “thorny” technical and legal questions underlying the challenges on the merits. Id. at 2070. Review now avoids those technical issues and cleanly

26

presents a narrow, purely legal question presented by

the D.C. Circuit’s mid-litigation remand order. See id.

Answering the Question Presented now also saves

significant resources. This mid-litigation remand

gives the EPA an opportunity to fix a problem—to rewrite its D- paper—that this Court first flagged in an

emergency posture before the lower court, or any

court, has had an opportunity to review the merits on

the existing administrative record. If the Court waits

to reverse the remand decision until after the lower

court issues a merits decision on the mixed record because the new portions of the record are invalid, much

time and money would have been wasted by all the

parties and the lower court litigating on a supplemented record. If the States prevail now, that waste

can be prevented, and the case will proceed to review

on the record that already exists. Thus, review now

would spare resources spent compiling and litigating

a supplemental record that may later be held invalid.

Review now also saves this Court the potentially

difficult task of disentangling the later merits decision

from the tainted, supplemental record. Because the

deficiency identified by this Court was “important”

enough to warrant “reversal,” any supplemental analysis the EPA provides in a bid to cure this error will

touch on every aspect of the Rule. Ohio, 144 S. Ct. at

2054 (quotation omitted and alteration accepted). Indeed, as this Court noted, the emissions budgets in the

federal plan rest on calculations unique to each particular mix of States. See Ohio, 144 S. Ct. at 2054,

2056 n.12. If the Court agrees that the remand for

supplementation was inappropriate, then reviewing

the D.C. Circuit’s decision on a later, mixed record will

require the Court to engage in the potentially difficult

process of splitting the lower court’s reasoning on the

27

permissible, existing record from the impermissible,

supplemental record. Review now would avoid this

problem.

Turn from the timing of remand to the manner of

remand. The court granted a remedy no one—not

even the EPA—asked for: remand of the record, but

not the case, back to the agency. The EPA also indicated it could finish adding to the record by November

30, 2024. Mot. in Utah v. EPA, No. 23-1157, etc., at

4–5 (D.C. Cir. Aug. 5, 2024) (ECF 2068299); Pet. App.

15a. Nevertheless, the court placed no time limit on

the remand, merely asking for a status update on December 30, 2024 if the EPA’s review has not been completed by then. Pet. App. 2a. This “creates a risk that”

the EPA will “drag its feet” in allowing a decision to

be reached on the merits. EME Homer City, 795 F.3d

at 132 (Kavanaugh, J.). And the remand order forecloses public inspection and comment on the supplemental record, see Pet. App. 2a, 18a–19a, 29a–30a, increasing the risk that the Agency will commit a

Chenery violation on remand. See Regents, 591 U.S.

at 22–23.

Put together, the timing and manner of the lower

court’s remand warrant review now. The unique posture of this appeal spotlights the important statutory

question in a way that mill-run Clean Air Act cases

cannot. And review now rather than later over a more

complex record mixed with technical questions will

save time and money wasted litigating a likely invalid, mixed record.

B. A circuit split on the Question Presented

is unlikely to manifest because challenges

under the Clean Air Act often go to the D.C.

Circuit.

28

It is of no moment that there is no current circuit

split on whether the Act permits courts to remand a

defective rule to supplement the record with new information and justifications. Congress has designated

the D.C. Circuit as the forum for most (but not all)

challenges under the Clean Air Act. See §7607(b)(1).

This limits the likelihood that other Circuits will have

an opportunity to address the Question Presented and

that a split will form. Perhaps that is why no other

circuit has answered squarely, as far as the States

aware, whether such remands are permitted under

the Act.

This Court sometimes adopts positions that “[n]o

Court of Appeals has ever” embraced. Alexander v.

Sandoval, 532 U.S. 275, 295 n.1 (2001) (Stevens, J.,

dissenting); see also, e.g., Rehaif v. United States, 588

U.S. 225, 239 (2019) (Alito, J., dissenting); Massachusetts v. EPA, 549 U.S. 497, 505–06 (2007); Cent. Bank

of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 191 (1994) & id. at 192 (Stevens,

J., dissenting). It may have to do so here. And given

the D.C. Circuit’s dominance in administrative matters generally, that Circuit sets the tone for remedies

available in administrative challenges for all circuits,

including the practice of remand without vacatur.

The Court should grant review in this matter even absent a circuit split.

29

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

Ohio Solicitor General

*Counsel of Record

MATHURA J. SRIDHARAN

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

thomas.gaiser@ohioago.gov

Counsel for Petitioner

State of Ohio

OCTOBER 2024

30

Additional Counsel

THEODORE E. ROKITA

Attorney General of Indiana

JAMES A. BARTA

Solicitor General

Office of the Indiana Attorney General

IGC-South, Fifth Floor

302 West Washington Street

Indianapolis, IN 46204-2770

317-232-0607

James.Barta@atg.in.gov

Counsel for State of Indiana

RUSSELL COLEMAN

Attorney General of Kentucky

MATTHEW F. KUHN

Solicitor General

Office of Kentucky Attorney General

700 Capital Avenue, Suite 118

Frankfort, Kentucky 40601

502-696-5400

Matt.Kuhn@ky.gov

Counsel for State of Kentucky

31

PATRICK MORRISEY

Attorney General of West Virginia

MICHAEL R. WILLIAMS

Solicitor General

Office of the West Virginia Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

304-558-2021

mwilliams@wvago.gov

Counsel for State of West Virginia