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

Supreme Court briefOct 18, 2024

Ask Donna

What actually matters in this document.

Text

No. 24-____

In the Supreme Court of the United States

______________________________

STATE OF OHIO, ET AL.

Petitioners,

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

______________________________

APPENDIX

______________________________

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)

TABLE OF CONTENTS

Page

Appendix A: Order, United States Court of

Appeals for the District of Columbia Circuit,

September 12, 2024 .................................................. 1a

Appendix B: Select Statute...................................... 3a

Appendix C: Motion for Partial Voluntary

Remand, United States Court of Appeals for

the District of Columbia Circuit, August 5,

2024 ......................................................................... 12a

Appendix D: Joint Response to Respondents’

Motion for Partial Voluntary Remand, United

States Court of Appeals for the District of

Columbia Circuit, August 15, 2024 ........................ 21a

Appendix E: Reply in Support of Motion for

Partial Voluntary Remand, United States

Court of Appeals for the District of Columbia

Circuit, August 29, 2024 ......................................... 48a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Case No.

23-1157

September Term, 2024

EPA-88FR36654

Filed On: September 12, 2024

State of Utah, by and through its Governor, Spencer

J. Cox, and its Attorney General, Sean D. Reyes,

Petitioner

Environmental Protection Agency and Michael S.

Regan, Administrator, U.S. EPA,

Respondents

_________________

City Utilities of Springfield, Missouri, et al.,

Intervenors

_________________

Consolidated with 23-1181, 23-1183, 23-1190, 231191, 23-1193, 23-1195, 23-1199, 23-1200, 23-1201,

23-1202, 23-1203, 23-1205, 23-1206, 23-1207, 231208, 23-1209, 23-1211, 23-1306, 23-1307, 23-1314,

23-1315, 23-1316, 23-1317

Before: Millett, Pillard, and Pan, Circuit Judges.

ORDER

Upon consideration of the motion for partial

voluntary remand without vacatur, the opposition

thereto, and the reply, it is

ORDERED that the record be remanded to permit

the Environmental Protection Agency to further

respond to comments in the record related to the

severability of the Federal “Good Neighbor Plan” for

the 2015 Ozone National Ambient Air Quality

Standards (June 5, 2023). See D.C. Cir. Rule 41(b).

Only the record, and not the case, is remanded, and

the rule is not vacated. It is

FURTHER ORDERED that these consolidated

cases be held in abeyance pending further order of the

court. The parties are directed to file motions to

govern future proceedings in these cases within 30

days after completion of the proceedings on remand or

December 30, 2024, whichever is earlier.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Selena R. Gancasz

Deputy Clerk

APPENDIX B

42 U.S. Code §7607 provides in relevant part:

(d)Rulemaking

(1) This subsection applies to—

(A) the promulgation or revision of any national

ambient air quality standard under section

7409 of this title,

(B) the promulgation or revision of an

implementation

plan

the Administrator under section 7410(c) of this

title,

any standard of performance under section

7411 of this title, or emission standard or

limitation under section 7412(d) of this title,

any standard under section 7412(f) of this title,

or any regulation under section 7412(g)(1)(D)

and (F) of this title, or any regulation

under section 7412(m) or (n) of this title,

(D) the promulgation of any requirement for

solid waste combustion under section 7429 of

this title,

(E) the promulgation or revision of any

regulation pertaining to any fuel or fuel

additive under section 7545 of this title,

(F) the promulgation or revision of any

aircraft emission standard under section 7571

of this title,

(G) the promulgation or revision of any

regulation under subchapter IV–A (relating

to control of acid deposition),

(H)

promulgation

revision

regulations pertaining to primary nonferrous

smelter orders under section 7419 of this

title (but not including the granting or denying

of any such order),

(I) promulgation or revision of regulations

under subchapter VI (relating to stratosphere

and ozone protection),

(J) promulgation or revision of regulations

under part C of subchapter I (relating

to prevention of significant deterioration of air

quality and protection of visibility),

(K) promulgation or revision of regulations

under section 7521 of this title and test

procedures for new motor vehicles or engines

under section 7525 of this title, and the revision

of a standard under section 7521(a)(3) of this

title,

(L) promulgation or revision of regulations for

noncompliance penalties under section 7420 of

this title,

(M) promulgation or revision of any regulations

promulgated under section 7541 of this

title (relating to warranties and compliance by

vehicles in actual use),

(N) action of the Administrator under section

7426 of this title (relating to interstate

pollution abatement),

(O) the promulgation or revision of any

regulation pertaining

to consumer

and

commercial products under section 7511b(e) of

this title,

(P) the promulgation or revision of any

regulation pertaining

to field

citations

under section 7413(d)(3) of this title,

(Q) the promulgation or revision of any

regulation pertaining to urban buses or the

clean-fuel vehicle, clean-fuel fleet, and clean

fuel programs under part C of subchapter II,

(R) the promulgation or revision of any

regulation pertaining to nonroad engines or

nonroad vehicles under section 7547 of this

title,

(S) the promulgation or revision of any

regulation relating to motor vehicle compliance

program fees under section 7552 of this title,

(T) the promulgation or revision of any

regulation under subchapter IV–A (relating

to acid deposition),

(U) the promulgation or revision of any

regulation under section 7511b(f) of this

title pertaining to marine vessels, and

(V)

such

other

actions

the Administrator may determine.

The provisions of section 553 through 557

and section 706 of title 5 shall not, except as

expressly provided in this subsection, apply to

actions to which this subsection applies. This

subsection shall not apply in the case of any

rule or circumstance referred to in

subparagraphs (A) or (B) of subsection 553(b) of

title 5.

(2) Not later than the date of proposal of any action

which

this

subsection

applies,

the Administrator shall establish a rulemaking

docket for such action (hereinafter in this

subsection referred to as a “rule”). Whenever a rule

applies only within a particular State, a second

(identical) docket shall be simultaneously

established in the appropriate regional office of

the Environmental Protection Agency.

(3) In the case of any rule to which this subsection

applies, notice of proposed rulemaking shall be

published in the Federal Register, as provided

under section 553(b) of title 5, shall be

accompanied by a statement of its basis and

purpose and shall specify the period available for

public comment (hereinafter referred to as the

“comment period”). The notice of proposed

rulemaking shall also state the docket number, the

location or locations of the docket, and the times it

will be open to public inspection. The statement of

basis and purpose shall include a summary of—

(A) the factual data on which the proposed rule

is based;

(B) the methodology used in obtaining the data

and in analyzing the data; and

considerations underlying the proposed rule.

The statement shall also set forth or summarize

and provide a reference to any pertinent

findings, recommendations, and comments by

the Scientific Review Committee established

under section 7409(d) of this title and the

National Academy of Sciences, and, if the

proposal differs in any important respect from

any of these recommendations, an explanation

of the reasons for such differences. All data,

information, and documents referred to in this

paragraph on which the proposed rule relies

shall be included in the docket on the date of

publication of the proposed rule.

(4)

(A) The rulemaking docket required under

paragraph (2) shall be open for inspection by

the public at reasonable times specified in the

notice of proposed rulemaking. Any person may

copy documents contained in the docket.

The Administrator shall

provide

copying

facilities which may be used at the expense of

the person seeking

copies,

but

the Administrator may waive or reduce such

expenses in such instances as the public

interest requires. Any person may request

copies by mail if the person pays the expenses,

including personnel costs to do the copying.

(B)

(i) Promptly upon receipt by the agency, all

written comments and documentary

information on the proposed rule received

from any person for inclusion in the docket

during the comment period shall be placed

in the docket. The transcript of public

hearings, if any, on the proposed rule shall

also be included in the docket promptly upon

receipt from the person who transcribed

such hearings. All documents which become

available after the proposed rule has been

published

and

which

the Administrator determines are of central

relevance to the rulemaking shall be placed

in the docket as soon as possible after their

availability.

(ii) The drafts of proposed rules submitted

by the Administrator to the Office of

Management

and

Budget for

any

interagency review process prior to proposal

of any such rule, all documents

accompanying such drafts, and all written

comments thereon by other agencies and all

written responses to such written comments

by the Administrator shall be placed in the

docket no later than the date of proposal of

the rule. The drafts of the final rule

submitted for such review process prior to

promulgation and all such written

comments

thereon,

all

documents

accompanying such drafts, and written

responses thereto shall be placed in the

docket no later than the date of

promulgation.

(5) In promulgating a rule to which this subsection

applies

(i)

the Administrator shall

allow

any person to submit written comments, data, or

documentary

information;

(ii)

the Administrator shall give interested persons an

opportunity for the oral presentation of data,

views, or arguments, in addition to an opportunity

to make written submissions; (iii) a transcript

shall be kept of any oral presentation; and (iv)

the Administrator shall keep the record of such

proceeding open for thirty days after completion of

the proceeding to provide an opportunity for

submission of rebuttal and supplementary

information.

(6)

(A) The promulgated rule shall be accompanied

by (i) a statement of basis and purpose like that

referred to in paragraph (3) with respect to a

proposed rule and (ii) an explanation of the

reasons for any major changes in the

promulgated rule from the proposed rule.

(B) The promulgated rule shall also be

accompanied by a response to each of the

significant comments, criticisms, and new data

submitted in written or oral presentations

during the comment period.

part or whole) on any information or data which

has not been placed in the docket as of the date

of such promulgation.

(7)

(A) The record for judicial review shall consist

exclusively of the material referred to in

paragraph (3), clause (i) of paragraph (4)(B),

and subparagraphs (A) and (B) of paragraph

(6).

(B) Only an objection to a rule or procedure

which was raised with reasonable specificity

during the period for public comment (including

any public hearing) may be raised during

judicial review. If the person raising an

objection

can

demonstrate

the Administrator that it was impracticable to

raise such objection within such time or if the

grounds for such objection arose after the

period for public comment (but within the time

specified for judicial review) and if such

10a

objection is of central relevance to the outcome

of the rule, the Administrator shall convene a

proceeding for reconsideration of the rule and

provide the same procedural rights as would

have been afforded had the information been

available at the time the rule was proposed. If

the Administrator refuses to convene such a

proceeding, such person may seek review of

such refusal in the United States court of

appeals for the appropriate circuit (as provided

in subsection (b)). Such reconsideration shall

not postpone the effectiveness of the rule. The

effectiveness of the rule may be stayed during

such

reconsideration,

however,

the Administrator or the court for a period not

to exceed three months.

(8) The sole forum for challenging procedural

determinations made by the Administrator under

this subsection shall be in the United States court

of appeals for the appropriate circuit (as provided

in subsection (b)) at the time of the substantive

review of the rule. No interlocutory appeals shall

be permitted with respect to such procedural

determinations. In reviewing alleged procedural

errors, the court may invalidate the rule only if the

errors were so serious and related to matters of

such central relevance to the rule that there is a

substantial likelihood that the rule would have

been significantly changed if such errors had not

been made.

(9) In the case of review of any action of

the Administrator to which this subsection

applies, the court may reverse any such action

found to be—

11a

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

authority, or limitations, or short of statutory

right; or

(D) without observance of procedure required

by law, if (i) such failure to observe such

procedure is arbitrary or capricious, (ii) the

requirement of paragraph (7)(B) has been met,

and (iii) the condition of the last sentence of

paragraph (8) is met.

(10) Each statutory deadline for promulgation of

rules to which this subsection applies which

requires promulgation less than six months after

date of proposal may be extended to not more than

six months after date of proposal by

the Administrator upon a determination that such

extension is necessary to afford the public, and the

agency, adequate opportunity to carry out the

purposes of this subsection.

(11) The requirements of this subsection shall take

effect with respect to any rule the proposal of which

occurs after ninety days after August 7, 1977.

12a

APPENDIX C

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-1157, and consolidated cases

STATE OF UTAH, et al.,

Petitioners

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents

_________________

MOTION FOR PARTIAL

VOLUNTARY REMAND

Respondents, the United States Environmental

Protection Agency and its Administrator, Michael S.

Regan (collectively “EPA”), hereby respectfully

request that the Court partially remand the “Federal

‘Good Neighbor Plan’ for the 2015 Ozone National

Ambient Air Quality Standards,” 88 Fed. Reg. 36654

(June 5, 2023) (“Good Neighbor Plan”), to enable the

Agency to take a supplemental final action addressing

the record deficiency preliminarily identified by the

Supreme Court in Ohio v. Environmental Protection

Agency, No. 23A349, slip op. (June 27, 2024).

The parties to this case state: State and Local

Government Respondent- Intervenors, Public Interest

Respondent-Intervenors, and Sierra Club (as

Petitioner-Intervenor) consent to the requested

13a

partial voluntary remand. State Petitioners Nevada,

Utah, Ohio, Indiana, West Virginia, and Kentucky;

Industry Petitioners; the Kentucky Energy and

Environment Cabinet; and the State of Wisconsin,

solely as Petitioner in 23-1201, oppose the requested

partial voluntary remand.

INTRODUCTION AND BACKGROUND

On March 15, 2023, EPA signed a final rule under

the Clean Air Act entitled, “Federal ‘Good Neighbor

Plan’ for the 2015 Ozone National Ambient Air

Quality Standards,” 88 Fed. Reg. 36654 (June 5,

2023). The final rule implements the Clean Air Act’s

Good

Neighbor

provision,

U.S.C.

7410(a)(2)(D)(i)(I), which ensures that sources in

upwind States whose pollution is affecting air quality

in downwind States do their fair share to reduce that

pollution. In accordance with that provision, the Good

Neighbor Plan envisions an emissions control

program for large industrial polluters in 28 States

(though covering only 23 States at the time), based on

a methodology that EPA has used for decades and that

has been repeatedly upheld by this Court and the

Supreme Court. See EPA v. EME Homer City

Generation, L.P., 572 U.S. 489, 524 (2014); EME

Homer City Generation, L.P. v. EPA, 795 F.3d 118

(D.C. Cir. 2015); Wisconsin v. EPA, 938 F.3d 303 (D.C.

Cir. 2019); Michigan v. EPA, 213 F.3d 663 (D.C. Cir.

2000).

The Good Neighbor Plan was challenged in this

Court in several petitions for review consolidated

under Case No. 23-1157. Briefing in those

consolidated cases is completed.

After the rule’s promulgation, EPA received

several administrative petitions to reconsider the

14a

Good Neighbor Plan. Portions of these petitions

alleged that the Good Neighbor Plan was not

severable as to individual states or groups of states,

and so could not reasonably be applied in fewer than

23 States, i.e., the number of states for which its

regulatory requirements were originally promulgated.

At the time these administrative petitions were filed,

the Good Neighbor Plan was active in some, but not

all, of the 23 States originally covered by the rule

because of judicial orders staying, pending judicial

review, a separate EPA action that is a necessary

predicate to the Good Neighbor Plan’s application in

particular States. According to the administrative

petitions, this post-decisional change in coverage

served to invalidate the Good Neighbor Plan as to all

covered States.

EPA partially denied these administrative

petitions, rejecting the petitioners’ assertions that the

Good Neighbor Plan is invalid because it is not

severable as to particular States. See 89 Fed. Reg.

23526 (April 4, 2024) (announcing denial of

reconsideration). 1

EPA’s

action

denying

reconsideration was challenged by two petitioners,

U.S. Steel and Hybar, LLC, in petitions consolidated

under Case No. 24-1172. Additional parties have since

moved to join as Respondent-Intervenors, and those

motions have been granted. See ECF 2062984;

2063062; 2066844. Two petitions challenging EPA’s

action denying reconsideration were also filed in the

Eighth Circuit, by the State of Arkansas and

1 Denial of reconsideration decision (“Denial”) available directly

at: https://www.epa.gov/system/files/documents/2024-03/basisfor-partial-denial-ofpetitions-for-reconsideration-of-goodneighbo.pdf

15a

Arkansas Department of Energy and Environment,

Division of Environmental Quality (Case No. 24-2144)

and Hybar, LLC (Case No. 24-2145). Those petitions

were consolidated with the petitions in the Eighth

Circuit challenging the Good Neighbor Plan, all of

which are in abeyance. See Case No. 24-2144, ECF

5400548 at 8; Case No. 24-2145, ECF 5400580 at 7.

Although this Court denied motions to stay the

Good Neighbor Plan pending judicial review on

September 25, 2023, and October 11, 2023, ECF

2018645 & 2021268, the Supreme Court granted

several stay applications on June 27, 2024, see Ohio v.

EPA, No. 23A349, slip op. (June 27, 2024); ECF

2062415. The Court concluded that EPA had likely

failed to adequately respond in the Good Neighbor

Plan to comments concerning severability. See ECF

2062415 at 12-13.

In light of the Supreme Court’s decision in Ohio,

EPA has decided to seek a partial remand of the Good

Neighbor Plan to fully consider and respond to the

relevant comments. If this Court grants partial

voluntary remand, EPA anticipates completing its

review by November 30, 2024. EPA would not oppose

abeyance of this case while it addresses this narrow

issue. 2 In compliance with this Court’s July 30, 2024,

Order, ECF 2067416, briefing in U.S. Steel v. EPA, 241172 et al., would continue concurrently with the

2 In light of the narrow scope of remand and EPA’s belief that the

rule’s remaining substantive requirements are sound, as well as

the Supreme Court’s decision granting stays of the Good

Neighbor Plan pending judicial review, vacatur would be

inappropriate and is not needed to address any prejudice given

the Supreme Court’s stay.

16a

partial remand. Once the partial remand is complete,

petitioners could opt to challenge that final action.

See, e.g., Nat’l Parks Conservation Ass’n v. EPA, 803

F.3d 151, 157 (3d Cir. 2015) (voluntary remand

granted to allow EPA to more adequately consider and

respond to comments already in the record, resulting

in new action that petitioners challenged). Those

challenges could then be consolidated with the rest of

the merits challenges to the Good Neighbor Plan.

Consistent with this Court’s order of July 30, 2024,

oral argument regarding the challenges to the Good

Neighbor Plan and EPA’s denial of the petitions for

reconsideration, as well as any challenges to EPA’s

action on remand, could occur on the same day before

the same panel. See Order, ECF 2067416.

ARGUMENT

In its June 27, 2024, opinion granting applications

to stay enforcement of the Good Neighbor Plan as to

certain petitioners, the Supreme Court concluded that

EPA likely did not adequately respond to commenters

who pointed out that some States could cease to be

covered by the Plan and questioned whether EPA’s

methodology would reach the same result for a

smaller subset of States. See Ohio, slip op. at 13.

Specifically, the Court stated that EPA likely failed to

explain “whether or why the same emissions-control

measures it mandated would continue to further the

[Good Neighbor Plan’s] stated purpose of maximizing

cost-effective air-quality improvement if fewer States

remained in the plan.” Id. at 8. The Court further

concluded that commenters raised this issue with

“reasonable specificity.” Id. at 15.

In light of the Supreme Court’s conclusion that this

issue was properly raised in comments but likely not

17a

adequately responded to, EPA seeks a partial

voluntary remand in order to appropriately consider,

and respond to, those comments. EPA would thus be

addressing the likely deficiency the Supreme Court

identified. 3 It is well established that agency decisions

are judged by the adequacy of their explanations, and

permitting an agency to proactively provide further

explanation is preferable to reviewing a record with a

likely deficiency. Cf. Ethyl Corp. v. Browner, 989 F.2d

522, 523-24 (D.C. Cir. 1993) (“We commonly grant

such motions [for remand], preferring to allow

agencies to cure their own mistakes rather than waste

the courts’ and parties’ resources reviewing a record

that both sides acknowledge to be incorrect or

incomplete.”). Therefore, this Court and others

routinely grant requests for voluntary remand to

allow an agency to address potential deficiencies in an

administrative record. 4

EPA believes the rule was reasonable and lawful

as promulgated, for the reasons identified in its brief.

But the Supreme Court’s stay opinion identified the

likelihood upon its preliminary review that EPA’s rule

might be procedurally defective. Accordingly, EPA

3 EPA’s intended action, while addressing overlapping questions,

is distinct from the reconsideration denial challenged in U.S.

Steel v. EPA (24-1172 et al.), because that action addressed postpromulgation events, while the remand will address comments

in the original record.

4 See, e.g., Sierra Club v. EPA, No. 20-1121 (D.C. Cir.), remand

granted Jan. 11, 2022, ECF 1930070; Am. Chem. Council v. EPA,

No. 11-1141 (D.C. Cir.), remand granted May 15, 2014, ECF

1493182; Nebraska v. EPA, No. 12-3084 (8th Cir.), remand

granted March 19, 2015, ECF 4256313; Ctr. for Biological

Diversity v. EPA, No. 20-9560 (10th Cir.), remand granted

January 5, 2021, ECF 010110460392.

18a

believes it would be most efficient to address that

possible error now, rather than proceeding through

litigation on whether EPA’s explanation is

“insufficient to permit a court to discern its rationale.”

Tourus Records, Inc. v. Drug Enf’t Admin., 259 F.3d

731, 737 (D.C. Cir. 2001); see also Lilliputian Sys. v.

Pipeline & Hazardous Materials Safety Admin., 741

F.3d 1309, 1314 (D.C. Cir. 2014). Remand here would

allow EPA to address any possible error.

After EPA completes its action on remand, and

should the petitioners challenge that new action, the

Court can then consider the Agency’s more thorough

explanation and reach the ultimate question whether

the Good Neighbor Plan is severable, instead of

considering whether EPA provided adequate

explanation. This process will allow judicial review of

EPA’s decision to proceed efficiently. EPA does not

intend to make any other changes to the Good

Neighbor Plan as a result of the partial voluntary

remand; nor does it anticipate introducing new facts

or data into the record. Rather, it intends to respond

to the pertinent comments, which the Supreme Court

found were likely raised with reasonable specificity.

EPA anticipates that it can complete this partial

remand expeditiously, and thus this request will not

prejudice the interests of any party in timely

resolution of these petitions for review. For example,

because EPA expects to consider and respond to these

comments that are already in the record without

introducing new facts or data, a wholly new noticeand-comment rulemaking procedure is not required.

See Chamber of Commerce of the United States v. SEC,

443 F.3d 890, 900 (D.C. Cir. 2006); cf. West Virginia v.

EPA, 362 F.3d 861, 869 (D.C. Cir. 2004). Nor will the

19a

resources of the parties already invested in briefing

the many other issues in this case be lost, since those

issues can proceed to be adjudicated, either on a

severed basis now or after an abeyance for EPA to

complete its action on remand.

Partial remand without vacatur is the most

efficient procedural mechanism to allow EPA to

address the potential deficiency in its record identified

by the Supreme Court and appropriately manage the

process of judicial review.

CONCLUSION

For the reasons noted above, the United States

respectfully requests that the Court grant EPA’s

motion for partial voluntary remand.

DATE: August 5, 2024

Respectfully submitted,

TODD KIM

Assistant Attorney General

/s/ Elisabeth H. Carter

CHLOE H. KOLMAN

ELISABETH H. CARTER

ZOE PALENIK

U.S. Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

(202) 598-3141

elisabeth.carter@usdoj.gov

20a

OF COUNSEL:

DANIEL P. SCHRAMM

KYLE DURCH

ROSEMARY H. KABAN

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Counsel for Respondents

21a

APPENDIX D

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-1157, and consolidated cases

STATE OF UTAH, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

_________________

JOINT RESPONSE OF PETITIONER STATES

INDIANA, KENTUCKY, NEVADA, OHIO, UTAH,

AND WEST VIRGINIA, AND INDUSTRY

PETITIONERS TO RESPONDENTS’ MOTION

FOR PARTIAL VOLUNTARY REMAND

Petitioner States Indiana, Kentucky, Nevada,

Ohio, Utah, and West Virginia, and Industry

Petitioners (collectively, “Opposing Petitioners”)

jointly file this response in opposition to the motion of

Respondents the United States Environmental

Protection Agency and Administrator Michael S.

Regan (collectively, “EPA”) to partially remand the

Final Rule in response to the Supreme Court’s stay in

Ohio v. EPA, Nos. 23A349, 23A350, 23A351, 23A384

(U.S. June 27, 2024) (“Supreme Court Stay”). The

Supreme Court could not have been clearer: “[T]he

Clean Air Act prevents us (and courts that may in the

22a

future assess the [Federal Implementation Plan]’s

merits) from consulting explanations and information

offered after the rule’s promulgation.” Supreme Court

Stay at 14 n.11 (citing 42 U.S.C. § 7607(d)(6)(C),

(d)(7)(A)). Thus, “reversal,” not remand, is the only

appropriate remedy. Id. (alterations omitted). Having

failed to subvert that command by trying (but failing)

to consolidate this case with certain reconsideration

actions, EPA tries again here. The Court should deny

this motion too.

BACKGROUND

I. In June 2023, EPA issued the final rule at issue

here. See 88 Fed. Reg.

36,654 (June 5, 2023) (“Rule”). 1 The Rule, entitled

the “Good Neighbor Plan,” is a federal implementation

plan (or “FIP”) under the Clean Air Act through which

EPA intended to regulate air emissions from certain

sources in 23 States. But both before and after EPA

promulgated its Rule, several federal appellate courts

stayed EPA’s state plan disapprovals—the necessary

legal predicates for EPA to issue a federal plan—in 12

of the 23 States. See Supreme Court Stay at 7-8 & n.6;

42 U.S.C. § 7410(c)(1).

Opposing Petitioners timely sought judicial review

in this Court challenging the Rule; those petitions for

1 EPA has contended that the Rule was promulgated when signed

in March 2023, see, e.g., EPA Mot. at 2; EPA Resp. Br. 30-31, ECF

2060371, while Opposing Petitioners have argued it was

promulgated when published in the Federal Register in June

2023, see, e.g., Industry Br. 7, ECF 2047829. The Supreme Court

agrees with Opposing Petitioners. See Supreme Court Stay at 8

(noting certain judicial stays of state plan disapprovals occurred

before EPA “proceeded to issue its final [Rule]”).

23a

review were consolidated under Utah v. EPA, No. 231157 (D.C. Cir.). In addition to seeking judicial review

of the Rule, two Industry Petitioners also filed

administrative petitions requesting that the agency

reconsider the Rule, while others asked the agency to

administratively stay the Rule pending judicial

review. The administrative petitions contended, in

part, that the stays of the state plan disapprovals

undermined the controls mandated by the Rule and

the rationale for requiring them. Opposing Petitioners

then moved in this Court for a stay of the Rule. This

Court denied those motions and briefing on the merits

commenced.

After this Court denied the stay motions, certain

State and Industry Petitioners sought a stay of the

Rule in the Supreme Court. Ohio v. EPA, Nos. 23A349,

23A350, 23A351, 23A384. Those Petitioners argued,

among other things, that EPA failed to consider and

explain the impact that eliminating one or more states

from its uniform 23-State Rule would have on its

regulation of sources in other states still subject to the

Rule. The Supreme Court set the emergency stay

applications for oral argument, and many of the

Court’s questions focused on the Rule’s lack of

adequate explanation regarding this critical issue.

E.g., Tr. of Oral Arg. 33-34, No. 23A349 (U.S. Feb. 21,

2024).

Given this focus, EPA tried to short-circuit the

Supreme Court’s review and salvage the Rule by

providing further explanation it developed in the

course of its March 2024 denial of petitions for

24a

reconsideration of the Rule. 2 EPA then quickly filed a

letter with the Supreme Court directing the Court to

that additional explanation. See Letter from E.

Prelogar, Solicitor General, to S. Harris, Clerk of

Court 1, No. 23A349 (U.S. Mar. 28, 2024) (referencing

denials later published at 89 Fed. Reg. 23,526 (Apr. 4,

2024)).

On June 27, 2024, the Supreme Court stayed the

Rule. The Court explained that EPA “failed to supply

a satisfactory explanation” for how the Rule would

operate once other States were no longer covered by

the uniform, 23-State Rule, meaning EPA “ignored an

important aspect of the problem before it.” Supreme

Court Stay at 13 (citations and quotation marks

omitted). The Court thus held the FIP was likely

“arbitrary or capricious.” Id. at 19 (citations and

quotation marks omitted).

The Supreme Court even acknowledged that,

“after [it] heard argument, EPA issued a document in

which it sought to provide further explanations for the

course it pursued.” Id. at 14 n.11 (citing 89 Fed. Reg.

at 23,526). But, the Supreme Court concluded, “the

Clean Air Act prevents us (and courts that may in the

future assess the FIP’s merits) from consulting

explanations and information offered after the rule’s

promulgation.” Id. (citing 42 U.S.C. § 7607(d)(6)(C),

(d)(7)(A)). Instead, the Supreme Court could “look to

only ‘the grounds that the agency invoked when it’

promulgated the FIP.” Id. at 14-15 n.11 (quoting

Michigan v. EPA, 576 U.S. 743, 758 (2015)). As for the

2 Hybar LLC and U. S. Steel timely petitioned for judicial review

of EPA’s reconsideration denial, and those challenges have been

consolidated under U.S. Steel v. EPA, No. 24-1172 (D.C. Cir.).

25a

appropriate remedy, the Supreme Court concluded

that “[s]hould the applicants show the FIP was

arbitrary and capricious on the existing record, as we

have concluded is likely, the Clean Air Act entitles

[Petitioners] to ‘revers[al]’ of that rule’s mandates on

them.” Id. (second alteration in original) (emphasis

added) (quoting 42 U.S.C. § 7607(d)(9)(A)).

II. EPA apparently did not get the message. Back

in this Court, EPA immediately sought to subvert the

Supreme Court’s clear pronouncement that the Rule’s

legality turns on EPA’s explanation and information

when it originally promulgated the Rule. EPA first

moved to consolidate this case with the

reconsideration actions in U.S. Steel. See EPA Mot. to

Consolidate Cases (July 5, 2024) (ECF 2063227). 3

Petitioners explained that EPA’s consolidation motion

improperly sought to end-run the Supreme Court’s

holding that courts could not consider in this case a

newly developed rationale that EPA conjured in its

denial of the reconsideration petitions. Joint Resp. 910 (July 15, 2024) (ECF 2064792). This Court rightly

3 Notably, this came after EPA opposed consolidation of this case

with challenges to the related Interim Final Rules, arguing that

consolidation “would unreasonably delay litigation of [Utah].”

Respondent EPA’s Statement at 6, No. 23-1275 (Nov. 13, 2023)

(ECF 2026750). EPA also argued that the challenges to the

Interim Final Rules could be “mooted,” depending on what

happened in Utah, id. at 8, and that consolidation would “thus

frustrate rather than serve judicial efficiency,” id. at 5. This

Court did not consolidate the two sets of cases. Order, Nos. 231157, et al. & 23-1275, et al. (Dec. 4, 2023) (ECF 2029865).

26a

rejected EPA’s consolidation gambit by denying that

motion on July 30, 2024. ECF 2067416. 4

EPA has now taken it to a new level. Over a month

after the Supreme Court stayed the Rule, weeks after

moving to consolidate this case with the

reconsideration case, and a week after Petitioners filed

their reply briefs in this case, 5 EPA now asks this

Court to partially remand the Rule so it can “take a

supplemental final action addressing the record

deficiency preliminarily identified by the Supreme

Court.” EPA Mot. at 1. But the Supreme Court already

closed that door: “[T]he Clean Air Act prevents us (and

courts that may in the future assess the FIP’s merits)

from consulting explanations and information offered

after the rule’s promulgation.” Supreme Court Stay at

14 n.11 (citing 42 U.S.C. § 7607(d)(6)(C), (d)(7)(A)).

Plus, the remedy for EPA’s lack of explanation “on the

existing record” is “revers[al],” id. at 14-15 n.11

(alteration in original)—meaning remand with

vacatur—not mere remand (without vacatur). Yet

EPA’s motion contains nary a mention of this

dispositive language from the Supreme Court’s

opinion.

EPA’s motion should be denied. If any affirmative

action is warranted at this stage, this Court should

remand and vacate the Rule and require EPA to start

from scratch. That is the remedy that the Clean Air

4 This Court also ordered that oral argument for U.S. Steel and

this case (23-1157, et al.) be set for oral argument on the same

day by the same panel. Id.

5 EPA conferred with other parties in Utah regarding the motion

on July 30, 2024, just one day after Petitioners filed their reply

briefs.

27a

Act requires for arbitrary and capricious actions, such

as EPA’s failure to justify its rulemaking—an error

that the Supreme Court identified.

ARGUMENT

This Court should deny EPA’s motion for partial

voluntary remand without vacatur. EPA is engaging

in “a sort of administrative law shell game” that this

Court should not countenance. See Am. Tel. & Tel. Co.

v. FCC, 978 F.2d 727, 731-32 (D.C. Cir. 1992);

Lutheran Church-Missouri Synod v. FCC, 141 F.3d

344, 349 (D.C. Cir. 1998) (“[T]he Commission has on

occasion employed some rather unusual legal tactics

when it wished to avoid judicial review, but this ploy

may well take the prize.”). The Supreme Court

squarely held that this Court cannot consider any

explanation or information beyond what EPA

originally said when it promulgated the Rule. And it

held that “reversal” was the appropriate remedy for

the Rule’s errors. EPA’s brazen attempt to circumvent

the Supreme Court’s mandates should be rejected.

This Court has “broad discretion to grant or deny

an agency’s motion to remand.” Util. Solid Waste

Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir.

2018). “In deciding a motion to remand, [the Court]

consider[s] whether remand would unduly prejudice

the non-moving party. Additionally, if the agency’s

request appears to be frivolous or made in bad faith,

it is appropriate to deny remand.” Id. (emphasis

added) (citations omitted); see also id. (denying

request to remand aspects of challenge that would

“prejudice the vindication of [certain parties’]

claim[s]”); id. at 438 (“[T]he provisions we now remand

stand unchallenged on their merits; accordingly, no

party will suffer prejudice from remand without

28a

vacatur.”) (emphasis added)). Moreover, EPA must

identify “substantial and legitimate” concerns in

support of remand and show that voluntary remand

would “conserve judicial resources.” SKF USA Inc. v.

United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001).

EPA cannot make the required showings.

For starters, the Supreme Court already closed

this door for EPA by confirming that reversal is the

Act’s sole remedy and that this Court cannot consider

EPA’s post hoc explanations. Beyond that, voluntary

remand would prejudice the Opposing Petitioners; it

would be futile (and thus not substantial and

legitimate); and it would be a model of judicial

inefficiency. This Court should thus deny EPA’s

motion.

Voluntary Remand Without Vacatur Is

Not Permissible Under The Act And

Would Otherwise Be Prejudicial, Futile,

And A Waste Of The Court’s And The

Parties’ Time And Resources.

A. At the outset, EPA requests relief that is

unavailable under the Clean Air Act. The Act

prescribes one remedy for EPA’s arbitrary and

capricious action on the Rule’s “existing record”:

“revers[al].” Supreme Court Stay at 14-15 n.11

(alteration in original) (quoting 42 U.S.C. §

7607(d)(9)(A)). Reversal, at the very least, means

remand with vacatur. That is the remedy Opposing

Petitioners seek for EPA’s errors. State Reply Br. 1314; Industry Reply Br. 46-47. This is not a simple

remand-without-vacatur scenario, where this Court

would consider the seriousness of the agency’s errors

and the disruptiveness of vacatur. See Allied–Signal,

Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146,

29a

1551 (D.C. Cir. 1993). As the Supreme Court

definitively declared, the Act’s sole remedial avenue is

reversal. That is why the Supreme Court issued a stay

of the Rule, provisionally providing the petitioners the

same remedy they would achieve if ultimately

successful on the merits. Any remedy short of that

would violate the statutory mandate.

EPA’s request for voluntary remand (without

vacatur) is tantamount to a request for a judgment

from this Court. EPA cannot unilaterally determine

that the proper remedy for its defective rulemaking is

something different from what the Supreme Court

and the statute allow. Accordingly, the Court should

deny EPA’s request out of hand.

B. EPA otherwise fails to establish the factors

necessary for voluntary remand without vacatur.

Start with prejudice. EPA envisions that there is

no need for notice or comment because EPA simply

intends to take its post-Rule briefing and reasoning on

reconsideration, graft it into the Rule and the

underlying record after the fact, and then proceed to

argue this case as though it was always there. EPA

Mot. at 7-8. That approach is futile because it

contradicts the Supreme Court’s limitation on the

permissible record. See infra at 11-13.

But even if post-Rule explanations were allowed

under the Clean Air Act and the Supreme Court Stay,

a new explanation alone would not be enough to fix

the problem. The unaddressed comments called on

EPA to “‘conduct a new assessment and modeling of

contribution’ to determine what emissions-control

measures maximized cost effectiveness in securing

downwind ozone air-quality improvements.” Supreme

Court Stay at 15 (quoting Comments of Air

30a

Stewardship Coalition at 13-14); see also id. at 6-7

(detailing many other similar comments). Indeed, the

Air Stewardship Coalition comments themselves

expressly requested that EPA’s updated modeling

findings would be “subject . . . to public comment.” Id.

at 7 (quoting Comments of Air Stewardship Coalition

at 13-14). These comments reflect that a reduced

number of states in the Rule requires consideration of

new data and a new analysis, which would require

interested parties to be afforded the notice- andcomment process.

EPA’s failure is not a mere procedural error to be

corrected with explanation. It is substantive, and it

goes to the heart of the Rule. EPA failed to do the

analysis and explain why the same emissions

thresholds would apply “if fewer States remained in

the plan.” Supreme Court Stay at 8. If EPA is allowed

to take back the Rule on this issue, EPA would be

setting emissions standards for less than 23 states in

a way it did not do before.

Without restarting the process from square one,

Opposing Petitioners will not have any opportunity to

address EPA’s continued misimpression of the Rule’s

fatal flaws.

C. The remand without vacatur envisioned by

EPA would also be legally futile. That is because the

Act strictly limits the materials EPA can rely on when

promulgating a rule: “The promulgated rule may not

be 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.” 42 U.S.C. § 7607(d)(6)(C). And

it restricts “[t]he record for judicial review” to only

that information or data. Id. § 7607(d)(7)(A).

Attempting to circumvent the law, EPA says it would

31a

not introduce “new facts or data” to the record. EPA

Mot. at 8. This is untrue. EPA admits it will offer

information not already on the record before this

Court. Id. Any later explanations or information

cannot be considered when reviewing the legality of

the Rule in this case. As the Supreme Court’s stay

order explains: “[T]he Clean Air Act prevents us (and

courts that may in the future assess the FIP’s

merits)”—i.e.,

this

Court—“from

consulting

explanations and information offered after the rule’s

promulgation.” Supreme Court Stay at 14 n.11

(citation omitted). In other words, the Rule must stand

or fall “on the existing record.” Id. at 14-15 n.11.

Remand for further explanation would thus be

pointless because this Court cannot consider anything

EPA would say. The agency is attempting to

unlawfully backfill a deficient record in response to

the Supreme Court’s holding.

EPA’s request flunks other requirements for

voluntary remand. EPA has made clear the result of

its remand exercise is pre-ordained. It has no

intention to reconsider whether the Plan is properly

severable, but instead plans to paper the record with

further explanation for its predetermined conclusion

of severability. EPA Mot. at 7-8. But “[t]he leading

voluntary remand cases confirm that agency

reconsideration of the action under review is part and

parcel of a voluntary remand.” Limnia, Inc. v. DOE,

857 F.3d 379, 386-87 (D.C. Cir. 2017) (collecting

cases). Though the agency need not always “confess

error or impropriety,” it “at least need[s] to profess

intention to reconsider, re-review, or modify the

original agency decision that is the subject of the legal

challenge.” Id. at 387. Here, EPA’s mind is already

made up—it merely wishes to launder its new, after-

32a

the-fact explanations into the record for “a second bite

at the apple.” Am. Waterways Operators v. Wheeler,

427 F. Supp. 3d 95, 98 (D.D.C. 2019). If that were

reason enough to voluntarily remand, it would seem

EPA has found the enduring solution to the age- old

Chenery problem. See SEC v. Chenery Corp., 318 U.S.

80, 87-88 (1943) (agency’s decision cannot rest on any

post hoc justifications offered by counsel). 6 Counsel for

agencies would need only publish their court briefs in

the Federal Register before oral argument or final

judgment to cure the administrative record. Such a

result would upend the rulemaking process.

But even if that were possible under the APA

(doubtful at best), it is patently unavailable under the

Act—EPA’s decision can be based only on what was

“placed in the docket as of the date of such

promulgation.” 42 U.S.C. § 7607(d)(6)(C). On that

“existing record,” “revers[al]”—not mere remand—is

required. Supreme Court Stay at 14-15 & n.11

(alteration in original).

D. EPA’s administrative gamesmanship is also

terribly inefficient and borderline frivolous, which

alone is enough to deny its motion. See Util. Solid

Waste Activities Grp., 901 F.3d at 436.

6 The Supreme Court’s holding that post hoc rationalization is

impermissible is not a novel concept; rather, it is longstanding

precedent under both the Clean Air Act and the Administrative

Procedure Act (“APA”). See Michigan, 576 U.S. at 758 (noting

“foundational principle of administrative law that a court may

uphold agency action only on the grounds that the agency

invoked when it took the action” (citing Chenery, 318 U.S. at 87));

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 50 (1983) (“[T]he courts may not accept appellate

counsel’s post hoc rationalizations for agency action.”).

33a

One need only recount the history of this case to

see why. Commenters alerted EPA to several

significant problems in the Rule, but EPA merely paid

lip service to them. Once it became apparent after

argument before the Supreme Court that the Rule

lacked the hallmarks of reasoned decisionmaking,

EPA tried to supplement its explanation via its

reconsideration denials. When that effort fell flat in

the Supreme Court, EPA tried again in this Court,

seeking consolidation to shoehorn those post- Rule

rationalizations into this case (after having opposed

similar consolidation with the Interim Final Rules,

supra note 3). And when that did not work, EPA

waited until just after merits briefing was completed

and asked this Court to remand so it can supply the

same tardy explanations through another agency

action (apparently prompting another petition for

review, which would presumably be accompanied by a

full suite of briefing before this Court on an issue and

record that is fully briefed). EPA Mot. at 5; cf. Friends

of Blackwater v. Salazar, 691 F.3d 428, 434 n.4 (D.C.

Cir. 2012) (noting that remand to lower court, “‘which

inevitably would result in a future appeal to this

court, would be a waste of judicial resources,’ where,

as here, the merits of the question are clear” (citation

omitted)). EPA predicts that it can thereby

fundamentally alter the Rule without notice or

comment, complete its reverse-engineering in time for

oral argument in this case, then merge that case with

this one and call it a day.

This approach to rulemaking is not lawful under

the Act. The Rule was final upon promulgation (in

2023), and it must rise or fall based on what EPA said

in the Rule. 42 U.S.C. § 7607(d)(6)(C). If it is arbitrary

or capricious, it must be “reverse[d].” Id. §

34a

7607(d)(9)(A); Supreme Court Stay at 14-15 n.11. The

Rule cannot be continuously reconsidered and

remanded and reviewed until reasonable. It is

important to put this in context. The Supreme Court

found substantive error as to one particular issue. But

the Court acknowledged that petitioners raised

“various other reasons” the Rule is arbitrary and

capricious. Supreme Court Stay at 13 n.10. The

Supreme Court simply had “no occasion to address

those other arguments.” Id. That being the case, under

EPA’s approach, EPA could (potentially after oral

argument before this Court) move for voluntary

remand without vacatur on other failure-to-consider

issues that Petitioners have raised that were not

addressed in the Supreme Court Stay, propose to beefup the record yet again, and proceed with protracted

litigation. EPA’s ping-pong approach to rulemaking is

inconsistent with well-established law and should be

rejected by denying its motion for remand without

vacatur.

II.

If Remand Is Necessary, Petitioners Do

Not Oppose Remand With Vacatur.

If a form of remand is desirable by this Court in

light of the Supreme Court’s stay opinion, the only

appropriate option is remand with vacatur. The case

is briefed; the Supreme Court has already said the

Rule is likely arbitrary and capricious; and EPA’s

motion likewise reflects that it cannot prevail “on the

existing record” that delimits this case. Id. at 14-15

n.11. Thus, if this Court does anything at this stage,

it should vacate the Rule and require EPA to start

35a

over. 7 The Supreme Court has identified a

fundamental flaw in the Rule, and EPA cannot go

back in time to fix it in this posture. The appropriate

remedy, therefore, is “revers[al],” 42 U.S.C. §

7607(d)(7)(A), so that EPA can initiate a new

rulemaking with a new record.

7 Farmworker Ass’n of Fla. v. EPA, No. 21-1079, 2021 U.S. App.

LEXIS 16882, at *2 (D.C. Cir. June 7, 2021) (ordering summary

vacatur of EPA’s action “in light of the seriousness of the

admitted error and the error’s direct impact on the merits of the

EPA’s” action); Clean Air Council v. Pruitt, 862 F.3d 1, 8 (D.C.

Cir. 2017) (granting environmental petitioners’ motion for

“summary disposition and vacatur” of an EPA administrative

stay because the stay was unauthorized by relevant code and

thus unreasonable); Clean Air Implementation Project v. EPA,

No. 96-1224, 1996 WL 393118, at *1 (D.C. Cir. June 28, 1996)

(granting motion for summary vacatur of the “potential to emit”

definition in regulations promulgated by EPA under Title V of

the 1990 Clean Air Act Amendments).

36a

CONCLUSION

For the foregoing reasons, EPA’s Motion should be

denied. Alternatively, the Court should remand with

vacatur.

Dated: August 15, 2024

Respectfully submitted,

/s/ Ana Maria Gutiérrez

Ana Maria Gutiérrez Michael Dean Miller

Womble Bond Dickinson (US) LLP 1899

Wynkoop Street, Suite 750

Denver, CO 80202

(720) 983-1350

ana.gutierrez@wbd-us.com

michael.miller@wbd-us.com

Counsel for Kinder Morgan, Inc.

Catherine E. Stetson

Hogan Lovells US LLP

555 Thirteenth Street, NW

Washington, DC 20004

(202) 637-5600

Cate.Stetson@hoganlovells.com

37a

/s/ Eric D. McArthur

Samuel B. Boxerman

Eric D. McArthur

Kathleen Mueller

Jeremy Rozansky

SIDLEY AUSTIN LLP

1501 K Street N.W.

Washington, DC 20005

Counsel for Interstate Natural Gas Association

of America and American Petroleum Institute

/s/ Michael B. Schon

Michael B. Schon

Lehotsky Keller Cohn LLP

200 Massachusetts Ave. N.W.

Washington, DC 20001

(512) 693-8350

Mithun Mansinghani

LEHOTSKY KELLER COHN LLP

629 W. Main St. Oklahoma City, OK 73102

(512) 693-8350

Counsel for National Mining Association

38a

THEODORE E. ROKITA

Attorney General of Indiana

/s/ James A. Barta

JAMES A. BARTA

Indiana Solicitor General

Office of the Indiana Attorney General IGCSouth, Fifth Floor

302 West Washington Street

Indianapolis, IN 46204

Phone: 317-232-0709

James.Barta@atg.in.gov

Counsel for State of Indiana

RUSSELL COLEMAN

Attorney General of Kentucky

/s/ Matthew F. Kuhn

MATTHEW F. KUHN

Kentucky Solicitor General

Office of Kentucky Attorney General 700

Capital Avenue, Suite 118

Frankfort, Kentucky 40601

Phone: 502-696-5300

Matt.Kuhn@ky.gov

Counsel for the Commonwealth of Kentucky

39a

DAVE YOST

Ohio Attorney General

/s/ Mathura J. Sridharan

T. ELLIOT GAISER

Ohio Solicitor General

MATHURA J. SRIDHARAN*

*Counsel of record

ZACHERY P. KELLER

Deputy Solicitors General

GREGG BACHMANN

Section Counsel – Environmental

30 East Broad Street, 17th Floor

Phone: 6l4-466-8980

Fax: 614-466-5087

mathura.sridharan@ohioago.gov

Counsel for the State of Ohio

PATRICK MORRISEY

Attorney General of West Virginia

/s/ Michael Williams

MICHAEL WILLIAMS

West Virginia Solicitor General

Office of the West Virginia Attorney General

State Capitol, Bldg 1, Room E-26

Charleston, WV 25305

Phone: 682-313-4550

Michael.R.Williams@wvago.gov

Counsel for State of West Virginia

40a

AARON D. FORD

Attorney General of Nevada

/s/ Heidi Parry Stern

HEIDI PARRY STERN

Solicitor General

Office of the Nevada Attorney General

555 E. Washington Ave., Ste. 3900

Las Vegas, NV 89101

(702) 486-3594

HStern@ag.nv.gov

Counsel for State of Nevada

/s/ David M. Flannery

David M. Flannery

Kathy G. Beckett

Keeleigh S. Huffman

STEPTOE & JOHNSON, PLLC

707 Virginia St. East

Post Office Box 1588

Charleston, WV 25326

(304) 353-8000

Edward L. Kropp

STEPTOE & JOHNSON, PLLC

Post Office Box 36425

Indianapolis, Indiana 46236

(317) 946-9882

Counsel for Petitioners American Forest &

Paper Association, American Iron and Steel

Institute, and Midwest Ozone Group

41a

/s/ Jarrod L. Bentley

JARROD L. BENTLEY

Kentucky Energy and Environment Cabinet

Office of Legal Services

300 Sower Boulevard, Third Floor

Frankfort, Kentucky 40601

(502) 782-0568

jarrod.bentley@ky.gov

Counsel for Kentucky Energy and Environment

Cabinet

/s/ Allison D. Wood

Allison D. Wood

Makram B. Jaber

Aaron M. Flynn

MCGUIRE WOODS LLP

888 16th Street N.W., Suite 500

Black Lives Matter Plaza

Washington, DC 20006

Counsel for Associated Electric Cooperative,

Inc., Deseret Generation & Transmission CoOperative d/b/a Deseret Power Electric

Cooperative, Ohio Valley Electric corporation,

Wabash Valley Power Association, Inc. d/b/a

Wabash Valley Power Alliance, America’s

Power, National Rural Electric Cooperative

Association and Portland Cement Association

42a

/s/ Brittany M. Pemberton

Brittany M. Pemberton

BRACEWELL LLP

2001 M Street N.W., Suite 900

Washington, D.C. 20036

(202) 828-1708

Counsel for TransCanada PipeLine USA Ltd.

/s/ Elliot Zenick

Elliott Zenick

AMERICAN CHEMISTRY COUNCIL

700 2nd St. N.E.

Washington, DC 20002

(202) 249-6744

Counsel for Petitioner American Chemistry

Council

/s/ Michael E. Born

Michael E. Born (49961) Cheri A.

Budzynski (51761)

SHUMAKER, LOOP & KENDRICK, LLP

Huntington Center

41 South High Street, Suite 2400

Columbus, OH 43215

(614) 463-9441

Counsel for Petitioners Buckeye Power, Inc. and

the Ohio Valley Electric Corporation

43a

/s/ Aaron M. Streett

Aaron M. Streett

Matthew L. Kuryla

Beau Carter

BAKER BOTTS L.L.P.

910 Louisiana St.

Houston, Texas 77002

(713) 229-1855

Counsel for Energy Transfer LP

/s/ John D. Lazzaretti

John D. Lazzaretti

SQUIRE PATTON BOGGS (US) LLP

1000 Key Tower

127 Public Square

Cleveland, OH 44114

(216) 479-8500

Counsel for Petitioner United States Steel

Corporation

/s/ Kelly M. McQueen

Kelly M. McQueen

THE MCQUEEN FIRM, PLLC

12 Woodsong Drive

Roland, AR 72135

(501) 580-3291

Counsel for Petitioner

Arkansas League of Good Neighbors

44a

/s/ Laura K. McAfee

Laura K. McAfee

(D.C. Cir. Bar No. 62386)

BEVERIDGE & DIAMOND, PC

201 North Charles Street, Suite 2200

Baltimore, MD 21201

Counsel for Enbridge (U.S.) Inc.

/s/ Mark W. DeLaquil

Mark W. DeLaquil

BAKER & HOSTETLER LLP

Washington Square, Suite 1100 1050

Connecticut Avenue N.W.

Washington, D.C. 20036

(202) 861-1500

Martin T. Booher

Joshua T. Wilson

BAKER & HOSTETLER LLP

2000 Key Tower

127 Public Square

Cleveland, Ohio 44114

Counsel for Hybar LLC

45a

/s/ Richard S. Moskowitz

Richard S. Moskowitz

Tyler Kubik

American Fuel & Petrochemical Manufacturers

1800 M Street, NW

Suite 900 North

Washington, DC 20036

(202) 844-5474

Counsel for Petitioner American

Petrochemical Manufacturers

Fuel

/s/ Elbert Lin

Elbert Lin

Kevin S. Elliker

David N. Goldman

HUNTON ANDREWS KURTH LLP

951 East Byrd Street, East Tower

Richmond, VA 23219

(804) 788-8200

F. William Brownell

E. Carter Chandler Clements

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Avenue N.W.

Washington, DC 20037

(202) 955-1500

Counsel for Petitioners

Union Electric Company, d/b/a Ameren

Missouri, and Arkansas League of Good

Neighbors

46a

SEAN D. REYES

Attorney General of Utah

/s/ Stanford E. Purser

STANFORD E. PURSER

Utah Solicitor General

Counsel of Record

Office of the Attorney General

Utah State Capitol Complex

350 North State Street Suite 230

Salt Lake City, UT 84114-2320

Phone: 801-538-9600

spurser@agutah.gov

WILLIAM L. WEHRUM

Wehrum Environmental Law LLC

1629 K Street, NW, Suite 300

Washington, D.C. 20006

Ph. 302-300-0388

William_Wehrum@comcast.net

EMILY C. SCHILLING

Holland & Hart LLP

222 South Main Street, Suite 2200

Salt Lake City, UT 84101

Phone: 801-799-5753

Fax: 202-747-6574

ecschilling@hollandhart.com

KRISTINA R. VAN BOCKERN

AARON B. TUCKER

Holland & Hart LLP

555 Seventeenth Street

Suite 3200

Denver, CO 80202

47a

Phone: 303-295-8107

Fax: 720-545-9952

trvanbockern@hollandhart.com

abtucker@hollandhart.com

Counsel for State of Utah

48a

APPENDIX E

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-1157, and consolidated cases

STATE OF UTAH, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents

_________________

REPLY IN SUPPORT OF MOTION FOR

PARTIAL VOLUNTARY REMAND

On August 5th, Respondent EPA moved this Court

for partial voluntary remand of the final rule known

as the Good Neighbor Plan, 88 Fed. Reg. 36654 (June

5, 2023) (“Rule”). ECF 2068299. EPA explained that

while the Agency believes that the Rule was

reasonable when promulgated, the Supreme Court

subsequently noted a “likely” procedural flaw: that

EPA had likely inadequately responded to comments

in the record related to the Rule’s severability. Partial

voluntary remand would allow EPA to address the

identified comments. Mot., ECF 2068299.

Petitioners oppose this relief on the grounds that

“reversal” is “the only appropriate remedy” for this

possible error, Resp., ECF 2070323 at 2, and that

EPA’s request is “borderline frivolous” and

49a

prejudicial, id. at 10-15. But this Court’s equitable

powers extend to granting requests for voluntary

remand, including without vacatur. Neither the

Supreme Court’s stay decision nor the Clean Air Act’s

judicial review provisions restrain those powers; nor

do Petitioners grapple with the fact that remand

would generate a new agency action. As remand would

nip in the bud a potential procedural issue in this case,

EPA’s motion will prevent needless and duplicative

judicial process that could only serve to delay

reductions in harmful pollution affecting downwind

states. And with the Rule’s enforcement stayed

pending judicial review, Petitioners will not be

prejudiced.

Granting the motion for partial

voluntary remand is within this Court’s

powers.

This Court has long reserved to itself “broad

discretion” to grant agencies’ motions for remand, and

“generally grant[s]” those motions where agencies

intend on remand to “cure their own mistakes.” Util.

Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 436

(D.C. Cir. 2018) (“USWAG”) (citing Limnia, Inc. v.

Department of Energy, 857 F.3d 379, 381, 386 (D.C.

Cir. 2017), and Ethyl Corp. v. Browner, 989 F.2d 522,

524 (D.C. Cir. 1993)). That authority plainly

encompasses EPA’s requested partial remand here.

Petitioners charge in response that the Supreme

Court “closed th[e] door” on that authority, Resp. 6,

relying on a footnote in the Supreme Court stay order

stating that the Clean Air Act’s judicial review

provisions

prevent

courts

“from

consulting

explanations and information offered after [a] rule’s

promulgation.” Resp. 12. But the Act’s review

50a

provisions do not bear on EPA’s motion. EPA is not

proposing that this Court reach merits determinations

based on information beyond the designated

administrative record. EPA is requesting a partial

remand so that it may address the likely procedural

error identified by the Supreme Court and issue a

revised rationale concerning the Rule’s severability

that responds to timely filed comments – resulting in

a new final agency action on that issue, with a

corresponding administrative record, that can be

reviewed by this Court consistent with the Clean Air

Act. See 42 U.S.C. § 7607(d)(6)(C) and (d)(7)(A).

Whether the Court proceeds with the remainder of

Petitioners’ challenges to the Rule now or holds those

challenges in abeyance until the remand is complete,

the nature of the Court’s review will be the same: the

Court will be able to review Petitioners’ challenges –

save those presented in Section I of both briefs – on

the original, complete administrative record

applicable to those challenges. And it will be able to

review any remaining, substantive concerns with the

Rule’s severability discussion on the basis of EPA’s

revised rationale issued on remand. See Mot. 7 n.4

(identifying similar challenges where partial

voluntary remand was granted). As such, granting

EPA’s motion would not conflict with the Act’s judicial

review provisions.

Nor would granting a request for voluntary

remand violate the Act’s language on remedies. See

Resp. 9. First, although Petitioners assert that EPA’s

request for a partial voluntary remand is “tantamount

to a request for judgment,” Resp. 9, the postures are

distinct: agencies may seek voluntary remand without

confessing error. Clean Wisconsin v. EPA, 964 F.3d

51a

1145, 1175 (D.C. Cir. 2020). Petitioners do not

establish in the first instance that the potential scope

of remedies after judgment bears on this Court’s

consideration of voluntary remand before judgment.

In any case, Petitioners are incorrect that “[a]ny

remedy short of [vacatur]” would violate the Clean Air

Act. Resp. 9. The Act simply does not say that. It

states that courts “may reverse any [EPA] action

found to be” unlawful (the language partially quoted

by the Supreme Court). 42 U.S.C. § 7607(d)(9)

(emphasis added). The Act also explicitly precludes

vacatur for certain types of errors, for example stating

that courts “may invalidate [a] rule” on the basis of

procedural errors “only if” certain conditions are met.

Id. § 7607(d)(8); see also Ne. Md. Waste Disposal Auth.

v. EPA, 358 F.3d 936, 947, 950 (D.C. Cir. 2004); Sierra

Club v. EPA, 769 F.2d 796, 806 (D.C. Cir. 1985)

(explaining that remand so that the agency may

“provide us with its rationale” is a “purely procedural

victory”).

Nor is there any evidence the Supreme Court

intended – in a footnote in a stay opinion, no less – to

announce significant new constraints on the power of

administrative agencies to correct their own mistakes

or the power of the judiciary to consider a broader

array of remedies for agency errors. Justice

Kavanaugh (who joined the stay opinion here) just a

week later highlighted courts’ practice of remanding

without vacatur “when a court rules that an agency

must provide additional explanation” for its action.

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

Sys., 144 S. Ct. 2440, 2466 n.6 (2024) (Kavanaugh, J.,

concurring). Although noting “some debate” over this

widespread practice, id., he did not suggest that the

52a

stay order in this case had declared it unlawful, or

even called the practice into doubt. 1 See also Michigan

v. EPA, 579 U.S. 903 (2016) (denying a petition for

certiorari arguing that remand without vacatur was

beyond this Court’s authority under the Clean Air

Act).

As the Supreme Court has explained, “we will not

construe a statute to displace courts’ traditional

equitable authority absent the clearest command.”

McQuiggin v. Perkins, 569 U.S. 383, 397 (2013); see

also Ctr. for Biological Diversity v. EPA, 56 F.4th 55,

71–72 (D.C. Cir. 2022). Clean Air Act text stating that

courts “may reverse” unlawful actions clearly does not

divest courts of their traditional equitable powers,

including the power to consider remedies other than

vacatur. Cf. Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 32 (2008) (“An injunction is a matter of

equitable discretion; it does not follow from success on

the merits as a matter of course.”); Weinberger v.

Romero-Barcelo, 456 U.S. 305, 313 (1982). This Court

has, of course, long exercised that authority under

Allied- Signal, Inc. v. U.S. Nuclear Regulatory

Commission, 988 F.2d 146 (D.C. Cir. 1993).

Petitioners claim that Allied-Signal would not

apply to this case, but present no argument except

that the Supreme Court’s use of the word “reversal”

transforms the Act’s “may” into a mandate and

precludes remand without vacatur. As discussed,

1 Notably, that “debate” concerns the Administrative Procedure

Act’s use of the phrase “shall … set aside agency action.” See

Checkosky v. SEC, 23 F.3d 452, 491 (1994) (opinion of Randolph,

J.). There is no room for debate here, where the Clean Air Act’s

use of “may” expressly preserves courts’ equitable discretion.

53a

Petitioners are wrong that the Act defines vacatur as

the “sole remedial avenue”; “may reverse” means what

it says. And the consequence of Petitioners’ argument

here – requiring an entirely new notice-and-comment

rulemaking for every rulemaking error, including

failure to respond to a single comment – would be an

extraordinary departure from both this Court’s

precedents and its foundational equitable powers.

There is thus no basis for this Court to deviate here

from its longstanding “prefer[ence]” that “agencies …

cure their own mistakes” through voluntary remand

“rather than wasting the courts’ and the parties’

resources reviewing a record that both sides

acknowledge to be incorrect or incomplete.” Ethyl

Corp., 989 F.2d at 524. 2

Granting EPA’s request for partial

voluntary remand is in the interest of

the Court and the parties.

Granting partial voluntary remand in this

instance is appropriate. Under this Court’s

precedents, EPA’s stated intention to modify a portion

of the existing rationale for the Rule by responding to

unaddressed comments is “generally” sufficient to

secure partial remand. See USWAG, 901 F.3d at 436

(citing Limnia). While “intervening events” like “a

new legal decision” are not required to seek a

voluntary remand, Clean Wisconsin, 964 F.3d at 1175,

2 Nor can Petitioners reasonably claim that the grant of a stay is

itself a guarantee of subsequent vacatur. See Resp. 9. Indeed,

both EPA’s 1998 NOX SIP Call and 2011 Cross-State Air

Pollution Rule were ultimately implemented despite initial stay

orders, and notwithstanding that some elements of each rule

were remanded without vacatur.

54a

EPA’s request comes after an exceedingly rare

preliminary order from the Supreme Court

specifically identifying a likely procedural flaw in the

Rule’s rationale – and one that EPA has the ability to

quickly cure without disturbing the remainder of this

case. These circumstances amplify EPA’s basis for

seeking voluntary remand. To be sure, the United

States believes that the Supreme Court’s conclusion

(upon limited review) was incorrect for the reasons

provided in EPA’s brief and in Justice Barrett’s

dissent. But as this Court might ultimately agree with

the Supreme Court’s preliminary view, remand to

address the potentially overlooked comments now will

save the parties and the Court from a far more

prolonged process, whereby the same potential flaw

must be corrected months or years from now – after

argument, decision, and perhaps appeal, with all the

harms to public health from delay – rather than at this

relatively early juncture.

As against its general preference for voluntary

remand, the Court weighs three additional factors:

prejudice, frivolousness, and bad faith. USWAG, 901

F.3d at 436. But Petitioners fail to establish they are

present here.

As to prejudice, enforcement of the Rule is

presently stayed, 3 so this limited remand will not

affect Petitioners’ compliance burdens. Indeed,

Petitioners’ only argument (aside from claiming

voluntary remand is unavailable) amounts to a

See

EPA

Memorandum,

available

at:

https://www.epa.gov/system/files/documents/2024-08/gnp-staypolicy-memo-08-05-2024-signed.pdf (announcing plan for

administrative stay).

55a

projection that EPA’s explanation on remand will be

substantively flawed. Resp. 10-11. That speculation,

and Petitioners’ claim that they “will not have any

opportunity

address

EPA’s

continued

misimpression of the Rule’s fatal flaws,” id., is

unfounded. If Petitioners object to how EPA addresses

comments on remand, judicial review is the remedy.

As to frivolousness, Petitioners’ argument that

EPA’s request is “futile” collapses into their distorted

view of agencies’ authority to correct their own errors.

See Resp. 11-13. As noted above, Petitioners are

simply incorrect that this Court must keep the Rule

frozen in amber until the Court can adjudicate the

merits and, per Petitioners, order its vacatur.

Petitioners also claim that EPA has no

“substantial and legitimate” interest in voluntary

remand, Resp. 8-9, and is instead engaged in

“gamesmanship.” Resp. 14-15. But where the

Supreme Court has not only granted emergency

applications for stay but also issued an opinion that

identifies a specific “likely” procedural flaw in the

Rule, EPA’s interest – and those of the Rule’s

supporters – in correcting that flaw is self-evidently

legitimate and substantial. 4 The fact that EPA

separately addressed reconsideration petitions on

overlapping questions (but concerning after- arising

judicial stays in other Circuits) and suggested

consolidation of what all parties agree are related

cases in this Court does not render EPA’s interest in

voluntary remand illegitimate. To the contrary,

4 An agency’s own, reviewable pronouncements are also far afield

from Chenery’s concern with post hoc justifications of counsel. See

Resp. 12.

56a

voluntary remand demands substantial Agency

resources; it is not undertaken lightly. 5

Petitioners’ reliance on Limnia, Resp. 12-13, takes

them no further, as that case stands for the

proposition that voluntary remands must be for the

genuine purpose of addressing some aspect of the

original action, not serve as cover for agencies that

“d[o] not intend to revisit” the original action such that

remand would amount to dismissal. 857 F.3d at 38688. EPA’s express purpose here is to address the

identified comments and revise that portion of its

rulemaking rationale accordingly.

As such, the requested partial remand is consistent

with this Court’s preference for administrative, rather

than judicial, corrections of possible rulemaking

errors.

Vacatur is not appropriate here.

Petitioners lastly represent that if this Court

grants the request for partial remand, they do not

oppose a remand with vacatur. But no party has

moved for vacatur here. In any case, vacatur is

unwarranted and would be highly prejudicial.

First, EPA’s request for partial remand concerns a

narrow, potential failure to respond to comments the

Supreme Court preliminarily assessed to be fairly

raised during rulemaking. There is no serious

question that EPA can cure that procedural failure

upon remand. Under Allied-Signal, the Court weighs

5 The timing of EPA’s request also was not frivolous. See Resp. 6,

14. The Supreme Court’s decision took eight months, and EPA

moved for partial remand after a reasonable period reviewing its

reasoning.

57a

“the seriousness of the [rule’s] deficiencies” and “the

disruptive consequences of an interim change that

may itself be changed.” 988 F.2d at 150-51. “The

‘seriousness’ of agency error turns in large part on

‘how likely it is the agency will be able to justify its

decision on remand.’” Long Island Power Auth. v.

FERC, 27 F.4th 705, 717 (D.C. Cir. 2022) (cleaned up).

Accordingly, where, as here, “an agency may be able

readily to cure a defect in its explanation of a

decision,” Heartland Reg'l Med. Ctr. v. Sebelius, 566

F.3d 193, 198 (D.C. Cir. 2009), the first Allied-Signal

factor favors remand without vacatur.

Second, vacatur is not necessary to avoid prejudice

to Petitioners. Enforcement of the Rule is currently

stayed, so partially remanding without vacatur would

have no effect on the status quo. Remand with

vacatur, however, would be highly disruptive. AlliedSignal, 988 F.2d at 150-51. Vacatur would delay final

resolution of Petitioners’ Good Neighbor obligations

under the 2015 ozone air quality standards well

beyond the Act’s deadlines for upwind action, see

Wisconsin v. EPA, 938 F.3d 303, 312-13 (D.C. Cir.

2019), by forcing EPA to restart rulemaking – which

began here more than two years ago – on the basis of

a “likely” inadequate explanation on a single issue.

There is no reason to presume, at this juncture, that

the Rule is otherwise unreasonable, let alone so

beyond justification that vacatur would be an

appropriate remedy. See Allied-Signal, 988 F.2d at

150-51 (tying vacatur to “the extent of doubt whether

the agency chose correctly” in designing a rule). And

there is no reason to start back at the beginning of this

litigation where the parties have already briefed a

wide variety of disputes that will remain unaffected

by the partial remand. That result would be both

58a

inefficient and would deal a significant blow to the

people of downwind states, who are awaiting the

reductions in Petitioners’ pollution promised by the

Clean Air Act.

Accordingly, where the Court has found flaws in

Good Neighbor rulemakings, it has regularly

remanded those rulemakings without vacatur in

recognition of the strong equities of downwind states

and the unequivocal statutory command that EPA

expeditiously eliminate offending pollution where

upwind states have not done so. See Wisconsin, 938

F.3d at 336; EME Homer City Generation, L.P. v. EPA,

795 F.3d 118, 138 (D.C. Cir. 2015); North Carolina v.

EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). Those

concerns weigh equally against vacatur here, and

indeed more so, as Petitioners have yet to actually

prevail on any issue on the merits.

CONCLUSION

For these reasons and those in EPA’s motion, the

United States respectfully requests that this Court

grant EPA’s motion for partial voluntary remand

without vacatur.

DATE: August 29, 2024

Respectfully submitted,

TODD KIM

Assistant Attorney General

/s/ Chloe H. Kolman

CHLOE H. KOLMAN

ELISABETH H. CARTER

ZOE PALENIK

59a

U.S. Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

(202) 598-3141

elisabeth.carter@usdoj.gov

OF COUNSEL:

DANIEL P. SCHRAMM

KYLE DURCH

ROSEMARY H. KABAN

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Counsel for Respondents

60a

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

61a

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.