Opposition Brief — Ohio, et al., Petitioners v. Environmental Protection Agency, et al.

No. 24-450

In the Supreme Court of the United States

STATE OF OHIO, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

CHLOE H. KOLMAN

ELISABETH CARTER

ZOE PALENIK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals had authority under

the Clean Air Act, 42 U.S.C. 7607(d), to remand to the

agency the record of the Environmental Protection

Agency (EPA) rule that this Court addressed in Ohio v.

EPA, 603 U.S. 279, so that EPA could expeditiously

clarify an explanation that the Court had found was

likely inadequate.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Abbott v. Veasey, 580 U.S. 1104 (2017) .................................. 9

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

Comm’n, 988 F.2d 146 (D.C. Cir. 1993) ............................ 16

Alpharma, Inc. v. Leavitt, 460 F.3d 1

(D.C. Cir. 2006) ............................................................. 11, 13

American Constr. Co. v. Jacksonville, Tampa

& Key West Ry. Co., 148 U.S. 372 (1893) ........................... 9

Black Warrior Riverkeeper, Inc. v. U.S. Army

Corps of Eng’rs, 781 F.3d 1271 (11th Cir. 2015) .............. 16

Calcutt v. FDIC, 598 U.S. 623 (2023) ................................... 11

California Cmtys. Against Toxics v. United

States EPA, 688 F.3d 989 (9th Cir. 2012) ......................... 16

Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402 (1971) .............................................. 11

DHS v. Regents of the Univ. of Cal.,

591 U.S. 1 (2020) ........................................................... 11, 12

Diné Citizens Against Ruining Our Env’t

v. Haaland, 59 F.4th 1016 (10th Cir. 2023) ...................... 16

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

795 F.3d 118 (D.C. Cir. 2015) ............................................. 15

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

572 U.S. 489 (2014)............................................................ 3, 4

(III)

IV

Cases—Continued:

Page

Ethyl Corp. v. Browner,

989 F.2d 522 (D.C. Cir. 1993) ............................................. 10

Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985).............................................................. 11

General Motors Corp. v. United States,

496 U.S. 530 (1990)................................................................ 2

Harrel v. Raoul, 144 S. Ct. 2491 (2024) ................................. 8

Idaho Farm Bureau Fed’n v. Babbitt,

58 F.3d 1392 (9th Cir. 1995) ............................................... 17

Local 814 v. NLRB,

546 F.2d 989 (D.C. Cir. 1976), cert. denied,

434 U.S. 818 (1977).............................................................. 11

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005).............................................................. 15

Michigan v. EPA:

576 U.S. 743 (2015) .......................................................... 18

579 U.S. 903 (2016) .......................................................... 18

Michigan v. U.S. EPA, 213 F.3d 663 (D.C. Cir. 2000),

cert. denied, 532 U.S. 903, and 532 U.S. 904 (2001) ........... 3

Mississippi v. EPA, 744 F.3d 1334 (D.C. Cir. 2013),

cert. denied, 574 U.S. 814 (2014) ....................................... 16

National Ass’n of Clean Water Agencies v. EPA,

734 F.3d 1115 (D.C. Cir. 2013) ........................................... 16

National Football League v. Ninth Inning, Inc.,

141 S. Ct. 56 (2020) ............................................................... 8

National Parks Conservation Ass’n v. United

States EPA, 803 F.3d 151 (3d Cir. 2015) .......................... 16

Natural Res. Def. Council v. EPA:

489 F.3d 1250 (D.C. Cir. 2007) ....................................... 15

571 F.3d 1245 (D.C. Cir. 2009) ....................................... 17

North Carolina v. EPA,

550 F.3d 1176 (D.C. Cir. 2008) ........................................... 15

V

Cases—Continued:

Page

SEC v. Chenery Corp., 318 U.S. 80 (1943)........................... 12

Sierra Club v. United States EPA,

167 F.3d 658 (D.C. Cir. 1999) ............................................. 17

Sierra Club v. United States EPA,

60 F.4th 1008 (6th Cir. 2023) ............................................. 16

Train v. Natural Res. Def. Council, Inc.,

421 U.S. 60 (1975) ................................................................. 2

Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019) .............. 15

Statutes:

Administrative Procedure Act, 5 U.S.C. 706(2) ................. 15

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 1

Tit. I, 42 U.S.C. 7401 et seq............................................... 2

42 U.S.C. 7401(b)(1) ..................................................... 2

42 U.S.C. 7408 .............................................................. 2

42 U.S.C. 7409 .............................................................. 2

42 U.S.C. 7410(a) ......................................................... 2

42 U.S.C. 7410(a)(2)(D)(i)(I) ................................... 3, 5

42 U.S.C. 7410(c)(1) ..................................................... 2

Tit. III, 42 U.S.C. 7601 et seq.:

42 U.S.C. 7607 ............................................................ 15

42 U.S.C. 7607(d) ................................................. 11, 15

42 U.S.C. 7607(d)(1) ................................................... 15

42 U.S.C. 7607(d)(6)(B) ............................................. 13

42 U.S.C. 7607(d)(6)(C) ............................................. 13

42 U.S.C. 7607(d)(7)(A) ............................................. 13

42 U.S.C. 7607(d)(9) ....................................... 14, 15, 17

42 U.S.C. 7607(d)(9)(A) ............................................... 5

VI

Miscellaneous:

Page

EPA, Federal “Good Neighbor Plan” for

the 2015 Ozone National Ambient Air

Quality Standards; Notice on Remand

of the Record of the Good Neighbor Plan to

Respond to Certain Comments (Dec. 3, 2024),

https://perma.cc/UA8H-E262 .................................... 7, 8, 14

63 Fed. Reg. 57,356 (Oct. 27, 1998) ........................................ 3

88 Fed. Reg. 9336 (Feb. 13, 2023) .......................................... 4

88 Fed. Reg. 36,654 (June 5, 2023) ................................... 4, 12

88 Fed. Reg. 49,295 (July 31, 2023) ........................................ 4

88 Fed. Reg. 67,102 (Sept. 29, 2023) ...................................... 5

H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977) ................. 14

Ronald M. Levin, “Vacation” at Sea: Judicial

Remedies and Equitable Discretion in

Administrative Law, 53 Duke L.J. 291 (2003) ................ 13

In the Supreme Court of the United States

No. 24-450

STATE OF OHIO, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a-2a) is

unreported. A prior order of the court of appeals is

available at 2023 WL 6285159.

JURISDICTION

The order of the court of appeals was entered on September 12, 2024. The petition for a writ of certiorari

was filed on October 18, 2024. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254.

STATEMENT

Last Term, this Court held that the Environmental

Protection Agency (EPA) had likely acted improperly

by “offer[ing] no reasoned response” to certain comments on a final rule (the Rule) implementing the Clean

Air Act’s (CAA or Act), 42 U.S.C. 7401 et seq., “ ‘Good

(1)

2

Neighbor Provision.’ ” Ohio v. EPA, 603 U.S. 279, 284,

293. The Court therefore stayed “[e]nforcement of

EPA’s rule” against petitioners and other applicants

pending D.C. Circuit litigation over the Rule “and any

petition for writ of certiorari.” Id. at 300. The D.C. Circuit subsequently remanded the rulemaking record to

EPA so that the agency could attempt to offer the reasoned response to comments that this Court had found

was likely lacking. Pet. App. 2a. Petitioners now challenge the D.C. Circuit’s remand order.

1. The CAA is intended “to protect and enhance the

quality of the Nation’s air resources so as to promote

the public health and welfare,” 42 U.S.C. 7401(b)(1), and

to control air pollution through a system of shared federal and state responsibility, see General Motors Corp.

v. United States, 496 U.S. 530, 532 (1990). Title I of the

Act requires EPA to establish national ambient air

quality standards (air quality standards) for particular

pollutants at levels that will protect the public health

and welfare. 42 U.S.C. 7408, 7409. The Act also directs

States to submit to EPA state implementation plans to

meet those standards. 42 U.SC. 7410(a). If EPA determines that a particular state plan is inadequate, or if a

State fails to submit a plan, EPA must issue a federal

implementation plan for that State at any time within

two years after making that determination. 42 U.S.C.

7410(c)(1). Those provisions reflect Congress’s effort to

“sharply increase[] federal authority and responsibility

in the continuing effort to combat air pollution.” Train

v. Natural Res. Def. Council, Inc., 421 U.S. 60, 64

(1975).

The Act’s requirements for state plans recognize

that “[a]ir pollution is transient, heedless of state

boundaries,” and may be “transported by air currents”

3

from upwind to downwind States. EPA v. EME Homer

City Generation, L. P., 572 U.S. 489, 496 (2014). When

air pollution travels beyond the originating State’s borders, that State is “relieved of the associated costs,”

which are “borne instead by the downwind States,

whose ability to achieve and maintain satisfactory air

quality is hampered by the steady stream of infiltrating

pollution.” Ibid. To account for that “complex challenge,” ibid., state plans must include “adequate provisions * * * prohibiting * * * any source or other type

of emissions activity within the State from emitting any

air pollutant in amounts which will * * * contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [air quality standard],” 42 U.S.C. 7410(a)(2)(D)(i)(I). This statutory requirement, known as the Good Neighbor Provision, is Congress’s chosen method of balancing the interests of upwind and downwind States. EME Homer,

572 U.S. at 498-499.

EPA has engaged in numerous rulemakings pursuant to the Good Neighbor Provision. In 1998, EPA limited the emissions of nitrogen oxides—a precursor to

ozone—for both power plants and other sources in 23

upwind States upon finding those States’ existing plans

inadequate. See 63 Fed. Reg. 57,356, 57,358 (Oct. 27,

1998). The D.C. Circuit largely upheld that regulation.

See generally Michigan v. U.S. EPA, 213 F.3d 663

(2000) (per curiam), cert. denied, 532 U.S. 903, and 532

U.S. 904 (2001). More recently, this Court upheld a rule

that curtailed emissions of 27 upwind States to assist

downwind attainment of three different air quality

standards. See EME Homer, 572 U.S. at 524.

2. In 2015, EPA revised the applicable air quality

standard for ozone, triggering the States’ obligations to

4

submit implementation plans to comply with that standard. Upon reviewing those submissions, EPA disapproved 21 state plans for failing to satisfy the Good

Neighbor Provision. 88 Fed. Reg. 9336, 9337-9338 (Feb.

13, 2023). Each of those States had proposed to take no

action to assist downwind neighbors. Ibid. On March

15, 2023, EPA then promulgated federal implementation plans covering those 21 States, as well as two other

States that had failed to submit plans altogether. 88

Fed. Reg. 36,654 (June 5, 2023). EPA’s rule applied the

same regulatory framework as the rule that the Court

had upheld in EME Homer. See 572 U.S. at 524. The

Rule also contained a severability provision stating

that, “[s]hould any jurisdiction-specific aspect of the final rule be found invalid,” the Rule can “continue to be

implemented as to any remaining jurisdictions.” 88

Fed. Reg. at 36,693.

In separate litigation, various States and industry

groups challenged EPA’s state-plan disapproval action

with respect to 12 state plans by filing petitions for review in various federal courts of appeals. In the months

after EPA had promulgated the Rule implementing the

federal plans, those courts stayed the challenged stateplan disapprovals pending further review. See 603 U.S.

at 288-289. Because EPA’s authority to promulgate a

federal plan in those States depended on the agency’s

antecedent determinations that the covered States had

not submitted adequate state plans, EPA recognized

that those stays precluded application (for the time being) of the Rule to the 12 States for which stays of their

state-plan disapproval had been entered. EPA issued

interim final rules to partially stay the Rule and ensure

adherence to preexisting requirements in those States

while the stays remain in effect. See 88 Fed. Reg.

5

49,295 (July 31, 2023); 88 Fed. Reg. 67,102 (Sept. 29,

2023).

3. Petitioners, along with members of industries

subject to the Rule, petitioned for review of the Rule in

the D.C. Circuit. Shortly thereafter, they moved for a

stay of the Rule pending the disposition of their petitions for review. The D.C. Circuit denied their applications. See 23-1157 C.A. Orders (Sept. 25, 2023 and Oct.

11, 2023).

This Court then stayed the enforcement of the Rule

against the applicants. See 603 U.S. at 300. The Court

found that the Rule was likely arbitrary or capricious,

see 42 U.S.C. 7607(d)(9)(A), because EPA had likely

failed to explain whether “the way [it] chose to determine which emissions ‘contribute[d] significantly’ to

downwind States’ difficulty meeting national ozone

standards” would remain appropriate if not all 23 upwind States were subject to the Rule. 603 U.S. at 293

(quoting 42 U.S.C. 7410(a)(2)(D)(i)(I)). The Court

stated “that EPA’s plan rested on an assumption that

all 23 upwind States would adopt emissions-reduction

tools up to a ‘uniform’ level of ‘costs’ to the point of diminishing returns.” Ibid. (citation omitted). In the

Court’s view, that method raised a question about

“[w]hat happens—as in fact did happen—when many of

the upwind States fall out of the planned [federal implementation plan] and it may now cover only a fraction of

the States and emissions EPA anticipated.” Ibid.

The Court concluded that “commenters posed this

concern to EPA during the notice and comment period,”

and that EPA had likely “offered no reasoned response”

to those comments. 603 U.S. at 293. The Court acknowledged that there could be “some explanation why

the number and identity of participating States does not

6

affect what measures maximize cost-effective downwind

air-quality improvements.” Ibid. But the Court found

it likely that no adequate explanation of that point “appear[s] in the final rule.” Id. at 294.

The Court recognized that EPA had included “a ‘severability’ provision [in] its final rule in which the agency

announced that the [federal implementation plan]

would ‘continue to be implemented’ without regard to

the number of States remaining.” 603 U.S. at 294 (citation omitted). But in the Court’s view, neither the severability provision, “nor anything else EPA said in support of its severability provision, addresses whether

and how measures” would function properly “when

many fewer States, responsible for a much smaller

amount of the originally targeted emissions, might be

subject to the agency’s plan.” Id. at 295.

In a footnote, this Court observed that after oral argument, EPA had issued a decision denying requests

for reconsideration based on the stays granted in the 12

States, “in which [EPA] sought to provide further explanations for the course it pursued.” 603 U.S. at 295

n.11. But the Court declined to “consult this analysis in

assessing the validity of the final rule,” instead “look[ing]

to only ‘the grounds that the agency invoked when it’

promulgated the [Rule].” Ibid. (citation omitted). The

Court further determined that “on the existing record,”

the Rule was likely “arbitrary or capricious” due to

what it viewed as EPA’s inadequate explanation. Ibid.

Accordingly, the Court concluded that “[e]nforcement

of EPA’s rule against the applicants shall be stayed

pending the disposition of the applicants’ petitions for

review” in the D.C. Circuit and “any petition for writ of

certiorari.” Id. at 300.

7

4. After this Court issued its decision granting the

stay, EPA moved in the D.C. Circuit for a partial voluntary remand to enable the agency “to fully consider and

respond to the relevant comments” about severability

referenced in this Court’s decision—a process that EPA

anticipated it would complete “by November 30, 2024.”

Pet. App. 15a. EPA explained that it did “not intend to

make any other changes to the” Rule or to “introduc[e]

new facts or data into the record” “as a result of the

partial voluntary remand.” Id. at 18a. EPA emphasized

that vacatur of the Rule during the remand was “not

needed to address any prejudice given [this] Court’s

stay.” Id. at 15a n.2.

The D.C. Circuit ordered “that the record be remanded to permit [EPA] to further respond to comments in the record related to the severability” of the

Rule. Pet. App. 2a. The court made clear that “the rule

is not vacated” during the pendency of the remand.

Ibid. And the court held the consolidated cases challenging the Rule in abeyance, while directing the parties to file motions “within 30 days after completion of

the proceedings on remand or December 30, 2024,

whichever is earlier.” Ibid.

On December 3, 2024, EPA completed its action on

remand responding to comments. See EPA, Federal

“Good Neighbor Plan” for the 2015 Ozone National

Ambient Air Quality Standards; Notice on Remand of

the Record of the Good Neighbor Plan to Respond to

Certain Comments (Notice on Remand), https://perma.

cc/UA8H-E262. In its remand notice, EPA further explained that “states’ obligations” under the Rule would

not “have been different, had the rule been promulgated

for, or if it covered, a smaller or different group of states

than the 23 states that were included in * * * the rule.”

8

Id. at 2. EPA “elaborated upon” the “reasons” that

were already “provided in the record” supporting its

conclusions. Ibid. And EPA “provide[d] a fuller response” to relevant comments by “relying solely on the

information and data available in the record at the time

the [Rule] was signed by the EPA Administrator and

promulgated on March 15, 2023.” Id. at 3-4; see ibid.

(explaining that the remand notice “consolidat[es] material and discussions from the existing administrative

record at the time the EPA issued the action”).

ARGUMENT

Petitioners seek review of the D.C. Circuit’s order

remanding the rulemaking record to EPA so that the

agency could address the likely deficient explanation

identified by this Court in Ohio v. EPA, 603 U.S. 279.

This Court should follow its usual practice of declining

to review interlocutory orders. That practice is particularly apt here because enforcement of the Rule is currently stayed, petitioners identify no harm that they

have suffered as a result of the remand order, and

EPA’s action on remand is now complete. The D.C. Circuit’s remand order is also fully consistent with the

CAA and with basic administrative-law principles. And

petitioners allege no circuit conflict or any other reason

why this Court’s review of the question presented is

warranted at this juncture. The petition should be denied.

1. The current interlocutory posture of this case

provides a sufficient reason for this Court to deny review. “This Court is rightly wary of taking cases in”

such a posture. Harrel v. Raoul, 144 S. Ct. 2491, 2492

(2024) (statement of Thomas, J.); see, e.g., National

Football League v. Ninth Inning, Inc., 141 S. Ct. 56, 57

(2020) (statement of Kavanaugh, J., respecting the denial of certiorari) (noting that “the interlocutory posture

9

is a factor counseling against this Court’s review”).

That approach makes sense, because “many orders

made in the progress of a suit become quite unimportant by reason of the final result, or of intervening

matters.” American Constr. Co. v. Jacksonville, Tampa

& Key West Ry. Co., 148 U.S. 372, 384 (1893).

Here, for instance, there will be no need to address

the legality of the D.C. Circuit’s remand order if that

court ultimately finds that EPA’s responses to comments on remand were inadequate, since in that event

the remand will have no practical impact on the disposition of the petitions for review. And if the remand issue

turns out to have continuing practical significance later

in the case, petitioners may raise that issue “again after

entry of final judgment,” at which point the question

“will be better suited for certiorari review.” Abbott v.

Veasey, 580 U.S. 1104, 1105 (2017) (statement of Roberts, C.J., respecting the denial of certiorari).

There is no sound basis for departing from the Court’s

usual practice here. This Court has already stayed enforcement of the Rule against petitioners. That stay has

remained in effect throughout the remand to the

agency, and it will remain in effect through any D.C.

Circuit decision and subsequent petition for certiorari.

See 603 U.S. at 300. Petitioners have not explained how

they have suffered any harm as a result of the D.C. Circuit’s remand order. And EPA’s action on remand is

now complete, meaning that the D.C. Circuit litigation

over the Rule can resume shortly.

For similar reasons, this case is a particularly poor

vehicle for considering “[w]hether courts may grant remands back to the Agency to fix a defective rule while

leaving it in place.” Pet. 17. Here, the Rule has not been

conclusively found to be defective. Instead, this Court,

10

in the context of a “[s]tay application,” found only that

EPA had “likely” provided an inadequate explanation

for the agency’s severability analysis. 603 U.S. at 290291, 293. Indeed, although petitioners claim (Pet. 4)

that the remand order eliminates “reversal of the

agency’s action” as the “remedy under the Act,” this

case currently raises no remedial question at all because it has not yet been finally adjudicated on the merits. And because of the stay, the Rule imposes no present obligations on petitioners and thus is not currently

“in place,” Pet. 17.

In any event, the remand to EPA has not caused substantial delay. The D.C. Circuit issued its remand order

on September 12, 2024, and EPA completed its responses to comments on remand on December 3, 2024.

EPA now plans to promptly seek supplemental briefing.

And merits briefing on all other issues in the consolidated cases is already complete. Petitioners offer no

reason why the brief pause occasioned by the remand

order has prejudiced them, particularly since this

Court’s stay order means that any delay in the D.C. Circuit proceedings is more likely to benefit petitioners

than to harm them. And it is far more efficient for the

courts and litigants to be able to consider EPA’s further

responses to comments contemporaneously with all the

other issues in the case. See Ethyl Corp. v. Browner,

989 F.2d 522, 524 (D.C. Cir. 1993) (explaining that the

D.C. Circuit “commonly grant[s]” remand motions,

“preferring to allow agencies to cure their own mistakes

rather than wasting the courts’ and the parties’ resources reviewing a record that both sides acknowledge

to be incorrect or incomplete”).

11

2. The D.C. Circuit’s remand order is fully consistent with the CAA, 42 U.S.C. 7607(d). Petitioners’

contrary arguments lack merit.

a. “It is a well-established maxim of administrative

law that ‘[i]f the record before the agency does not support the agency action, [or] if the agency has not considered all relevant factors, . . . the proper course, except

in rare circumstances, is to remand to the agency for

additional investigation or explanation.’ ” Calcutt v.

FDIC, 598 U.S. 623, 628-629 (2023) (per curiam) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729,

744 (1985)); see, e.g., Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 420 (1971) (approving a remand so that the agency could provide an explanation

for an inadequately articulated decision). As the D.C.

Circuit has long held, “[i]f a reviewing court finds the

record inadequate to support a finding of reasoned analysis by an agency,” the agency may “submit[] an amplified articulation” to support its action. Local 814 v.

NLRB, 546 F.2d 989, 992 (1976) (per curiam), cert. denied, 434 U.S. 818 (1977); see Alpharma, Inc. v. Leavitt,

460 F.3d 1, 6 (D.C. Cir. 2006) (Garland, J.).

This Court’s decision in DHS v. Regents of the University of California, 591 U.S. 1 (2020), confirms the

propriety of that longstanding practice. There, the

Court explained that, if an agency’s grounds for decision “are inadequate, a court may remand for the

agency” to “offer ‘a fuller explanation of the agency’s

reasoning at the time of the agency action.’ ” Id. at 20

(citation omitted). On remand, the agency therefore

may “elaborat[e] on its prior reasoning.” Id. at 21; see

id. at 67 (Kavanaugh, J., concurring in the judgment in

part and dissenting in part) (“[T]he ordinary judicial

remedy for an agency’s insufficient explanation is to

12

remand for further explanation by the relevant agency

personnel.”).

The D.C. Circuit’s remand order here fully complies

with these principles. The order states that the record

should “be remanded to permit the [EPA] to further

respond to comments in the record related to the severability” of the Rule. Pet. App. 2a. Thus, the remand

order allows EPA only to provide “a fuller explanation”

of its earlier determination that the Rule is geographically severable—and workable for each covered

State—so that judicial orders precluding the Rule’s application to certain States that it originally covered

should not prevent its continued application to the remaining States. Regents, 591 U.S. at 20 (citation omitted); see 88 Fed. Reg. at 36,693. The remand order does

not suggest that EPA may “provide new” reasons to

justify its severability decision. Regents, 591 U.S. at 21.

Nor has EPA done so. Rather, in further responding to

the relevant comments, EPA has provided “a fuller explanation of its reasoning at the time of its action” and

has “rel[ied] solely on the information and data available in the record at the time” the Rule was promulgated,

without “supplement[ing] the record of the [Rule] with

new findings, information, [or] data.” Notice on Remand

1, 4.

Contrary to petitioners’ submission (Pet. 20), the

D.C. Circuit’s remand order does not risk “a Chenery

violation.” To the contrary, this Court in Regents specifically explained that remanding for a fuller explanation of a prior agency action is consistent with the principles set forth in SEC v. Chenery Corp., 318 U.S. 80

(1943). See Regents, 591 U.S. at 20-21. Thus, the

Chenery “rule is not a time barrier which freezes an

13

agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation

of its reasoning.” Alpharma, 460 F.3d at 6 (citation

omitted).

Indeed, petitioners’ own cited sources

(Pet. 17-18) agree that remanding for the agency to provide further explanation “is consistent with Chenery because it does not require the court to make the same

administrative determinations that the agency would

have to make.” Ronald M. Levin, “Vacation” at Sea:

Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 371-372 (2003)

(emphasis omitted).

Petitioners are also wrong (Pet. 19-21) in suggesting

that the D.C. Circuit’s remand order violates Section

7607(d)(6)(C), which states that “[t]he 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).

The remand order here satisfies the text of Section

7607(d)(6)(C) because the order does not contemplate

the addition of any new “information or data” to the

rulemaking record, ibid. Instead, the order simply contemplates a fuller response to the relevant comments,

based on the existing information and data that were in

the record when the rule was promulgated, see Pet.

App. 2a. And as noted, the action that EPA recently

took on remand does just that. See p. 12, supra.

Likewise, the remand order satisfies the text of Section 7607(d)(7)(A) because, following the remand, the

“record for judicial review” will still “consist exclusively” of the appropriate record materials. 42 U.S.C.

7607(d)(7)(A). Contra Pet. 19. Specifically, the remand

order authorizes EPA only to provide a fuller “response

to each of the significant comments.” 42 U.S.C.

14

7607(d)(6)(B). And again, that is what EPA has done.

See Notice on Remand 3 (explaining that the remand

notice “provides a fuller response” to prior “comments”

about the Rule’s “application and severability on a

state-by-state basis”); id. at 4 (explaining that the remand notice “provide[s] an ‘amplified articulation’ of

the methodology underlying the design of the Good

Neighbor Plan”).1

b. The D.C. Circuit also acted appropriately in remanding to the agency without vacating the Rule. See

Pet. App. 2a. Section 7607(d)(9) states that, when a reviewing court determines that an EPA action subject to

that provision is unlawful, the court “may reverse” that

action. 42 U.S.C. 7607(d)(9). But the Rule has not been

found unlawful. Rather, this Court, in ruling on the stay

applications, held only that the Rule likely lacked an adequate explanation as to one particular issue. See 603

U.S. at 300. The petitions for review of the Rule remain

pending before the court of appeals, and that court’s remand order did not reflect a determination that any aspect of the Rule is actually invalid. There was consequently no reason for the court of appeals to award petitioners any relief beyond the stay that this Court has

already granted.

Petitioners’ reliance (Pet. 20-21) on Section 7607(d)’s legislative

history is misplaced. That history suggests that Congress sought to

change the preexisting CAA regime, which did “not require the establishment of a clearly defined” rulemaking record at all. H.R.

Rep. No. 294, 95th Cong., 1st Sess. 318 (1977). But it says nothing

about whether Congress intended to bar courts from remanding to

EPA so that the agency could further explain its existing reasoning

after a court had found the prior explanation likely insufficient. Nor

does that history suggest that the CAA “is more protective than

Chenery,” Pet. 20; if anything, it simply suggests an intent to codify

Chenery’s basic rule against post hoc justifications.

1

15

In any event, even in cases where EPA actions are

definitively found to be deficient, Section 7607(d)’s

“may reverse” language, 42 U.S.C. 7607(d)(9), indicates

that courts have discretion to fashion an appropriate

remedy in response to a successful challenge to agency

action under the CAA. See, e.g., Martin v. Franklin

Capital Corp., 546 U.S. 132, 136 (2005) (“[T]he word ‘may’

clearly connotes discretion.”) (citation omitted). The

D.C. Circuit has repeatedly recognized that Section

7607(d)(9) permits a reviewing court in appropriate circumstances to remand an unlawful rule to EPA without

vacating the rule, including in cases involving the Good

Neighbor Provision. See, e.g., Wisconsin v. EPA, 938

F.3d 303, 336 (2019) (per curiam); EME Homer City

Generation, L.P. v. EPA, 795 F.3d 118, 138 (2015) (Kavanaugh, J.); North Carolina v. EPA, 550 F.3d 1176,

1178 (2008) (per curiam). Judge Randolph, who has criticized the remand-without-vacatur remedy in cases governed by the Administrative Procedure Act (APA) judicial-review provision, 5 U.S.C. 706(2), agrees that Section 7607(d)(9) grants courts “remedial discretion” in

CAA cases. Natural Res. Def. Council v. EPA, 489 F.3d

1250, 1263 (D.C. Cir. 2007) (Randolph, J., concurring).

Petitioners ignore Section 7607(d)(9)’s discretionary

language when suggesting that reversal is “the remedy

available under the Act.” Pet. 21 (emphasis added).

The discretion conferred by Section 7607(d)(9) (and

by the APA’s judicial-review provision, 5 U.S.C. 706(2))

is not unlimited. 2 The D.C. Circuit has explained that

This case is governed by Section 7607 alone. See 42 U.S.C.

7607(d)(1) (stating that the APA “shall not * * * apply to” specified

actions under the CAA). But in appropriate circumstances, remand

without vacatur is also permissible under the APA, 5 U.S.C. 706(2).

2

16

“[t]he decision whether to vacate depends” on both (1)

“ ‘the seriousness of the order’s deficiencies (and thus

the extent of doubt whether the agency chose correctly),’ ” and (2) “ ‘the disruptive consequences of an interim change that may itself be changed [by the agency

on remand].’ ” Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-151 (1993) (citation

omitted). Applying that commonsense approach, the

D.C. Circuit and other courts of appeals have frequently

ordered remand without vacatur under both the CAA

and the APA.3

See, e.g., Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of

Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015) (citing cases).

3

See, e.g., Sierra Club v. United States EPA, 60 F.4th 1008, 1023

(6th Cir. 2023) (finding that “vacatur [was] not justified” where

“EPA intend[ed] to complete its reevaluation * * * within twelve

months of remand”); Diné Citizens Against Ruining Our Env’t v.

Haaland, 59 F.4th 1016, 1049 (10th Cir. 2023) (adopting “the test set

out by the D.C. Circuit in Allied-Signal for determining whether

vacatur is necessary”); National Parks Conservation Ass’n v.

United States EPA, 803 F.3d 151, 157 (3d Cir. 2015) (noting that the

court had granted EPA’s “motion for voluntary remand without vacatur in order to consider and respond in greater detail to the Conservation Groups’ concerns”); Black Warrior Riverkeeper, 781 F.3d

at 1290 (explaining that “the remedy of remand without vacatur is

surely appropriate” where “it is not at all clear that the agency’s

error incurably tainted the agency’s decisionmaking process”); Mississippi v. EPA, 744 F.3d 1334, 1362 (D.C. Cir. 2013) (per curiam)

(remanding final rule to EPA because the rule’s flaw was a “curable

defect,” and explaining that “vacating a standard because it may be

insufficiently protective would sacrifice such protection as it now

provides”) (citation omitted), cert. denied, 574 U.S. 814 (2014); National Ass’n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1161

(D.C. Cir. 2013) (remanding without vacatur EPA environmental

standards for further explanation); California Cmtys. Against Toxics v. United States EPA, 688 F.3d 989, 994 (9th Cir. 2012) (per curiam) (declaring EPA’s action invalid after EPA conceded flaws in

17

Petitioners also assert (Pet. 21) that the D.C. Circuit’s remand-without-vacatur order here is inconsistent with this Court’s decision in Ohio. But as already explained, the Court in Ohio did not definitively

resolve the merits, but simply granted a stay pending

further review in the D.C. Circuit and this Court, based

in part on the Court’s determination that the applicants

were likely to prevail on a particular challenge. See 603

U.S. at 300. Because of that preliminary posture, the

Court did not decide any remedial question—let alone

whether vacatur is required under the CAA. Although

the Court noted in passing that the stay applicants would

be “entitle[d]” to “ ‘revers[al]’ ” of the Rule’s “mandates

on them” if they ultimately showed that the Rule “was

arbitrary or capricious on the existing record,” id. at

295 n.11 (citation omitted; second set of brackets in

original), the Court did not purport to hold that reversal

or vacatur is required under the CAA. Indeed, the

Court did not quote the word “may” in Section

7607(d)(9) at all. 42 U.S.C. 7607(d)(9) (“the court may

reverse any such action found to be [unlawful]”) (emphasis added).

its reasoning, but remanding without vacatur because vacatur would

be “economically disastrous” for the affected industry party); Natural Res. Def. Council v. EPA, 571 F.3d 1245, 1276 (D.C. Cir. 2009)

(per curiam) (considering whether EPA could “cure” the legal flaws

in a rule when deciding to vacate some, but not all, of the rule’s provisions); Sierra Club v. United States EPA, 167 F.3d 658, 664 (D.C.

Cir. 1999) (declining to vacate rule because “EPA may be able to

explain” the agency’s reasoning on remand); Idaho Farm Bureau

Fed’n v. Babbitt, 58 F.3d 1392, 1405-1406 (9th Cir. 1995) (finding a

“significant procedural error” that would normally render the action “invalid,” but remanding without vacatur in order to preserve a

species listed as endangered).

18

3. The petition does not otherwise warrant this

Court’s review. As the decisions cited above make clear,

there is broad agreement among the circuits that remanding to an agency for further explanation without

vacatur can be a valid approach in appropriate circumstances. See pp. 16-17 n.3, supra. Petitioners do not

cite a single decision holding that remand without vacatur is categorically impermissible in cases where agency

action is held to be unlawful—much less where (as here)

an agency action was merely preliminarily stayed on the

basis of a likely inadequate explanation. To the contrary, petitioners concede (Pet. 24) that such remands

“are commonly granted as a remedy to rulemaking violations under the Act.”

Accordingly, this Court previously denied a petition

raising a similar question after the D.C. Circuit remanded to EPA in the aftermath of this Court’s decision

in Michigan v. EPA, 576 U.S. 743 (2015). See Michigan

v. EPA, 579 U.S. 903 (2016) (denying petition for certiorari). The same course is warranted here.

Finally, the stay previously entered by this Court

makes this case an unsuitable vehicle for deciding any

question concerning the general propriety of remand

without vacatur. The usual consequence of remand

without vacatur is that a challenged agency rule remains in effect even though the rule (or some aspect of

it) has been found deficient. In this case, however, the

Court’s stay order independently renders the Rule inoperative as to petitioners during the pendency of

judicial-review proceedings, including the disposition of

any certiorari petition. In arguing that the court of appeals was required to vacate the Rule when the court

remanded the matter to the agency, petitioners make

19

no effort to explain why this Court’s stay order is insufficient to protect their interests.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

CHLOE H. KOLMAN

ELISABETH CARTER

ZOE PALENIK

Attorneys

DECEMBER 2024