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.,

v.

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION FOR STATE RESPONDENTS

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ELIZABETH A. BRODY

Assistant Solicitor General

MORGAN A. COSTELLO

CLAIBORNE E. WALTHALL

Assistant Attorneys General

28 Liberty Street

New York, New York 10005

(212) 416-8016

barbara.underwood@ag.ny.gov

*Counsel of Record

i

QUESTION PRESENTED

Whether the Clean Air Act permits a court to

remand a rulemaking record to EPA to allow the agency

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

at the time the rule was promulgated. See Department

of Homeland Sec. v. Regents of the Univ. of Cal., 591

U.S. 1, 20 (2020) (quotation marks omitted).

ii

TABLE OF CONTENTS

Page

Table of Authorities ....................................................... ii

Introduction ..................................................................... 1

Background...................................................................... 2

Reasons for Denying the Petition .................................. 3

Conclusion ..................................................................... 11

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Veasey, 580 U.S. 1104 (2017) ......................... 4

Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir.

2006) .......................................................................... 9

American Petroleum Inst. v. Costle, 609 F.2d 20

(D.C. Cir. 1979) ....................................................... 10

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................... 5

BNSF Ry. v. Federal R.R. Admin., 105 F.4th

691 (5th Cir. 2024) .................................................... 8

Camp v. Pitts, 411 U.S. 138 (1973) ............................... 8

Citizens to Pres. Overton Park, Inc. v. Volpe, 401

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

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)..... 7

Conway v. California Adult Auth., 396 U.S. 107

(1969) ......................................................................... 4

Department of Homeland Sec. v. Regents of the

Univ. of Cal., 591 U.S. 1 (2020) ............................... 8

Does 1-3 v. Mills, 142 S. Ct. 17 (2021) .......................... 7

iii

Cases

Page(s)

Ford Motor Co. v. NLRB, 305 U.S. 364 (1939) ............. 8

Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) ...... 8

Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130

(D.C. Cir. 1980) ....................................................... 10

Maslenjak v. United States, 582 U.S. 335 (2017) ......... 7

McQuiggin v. Perkins, 569 U.S. 383 (2013) .................. 8

National Football League v. Ninth Inning, Inc.,

141 S. Ct. 56 (2020)................................................... 5

Ohio v. EPA, 603 U.S. 279 (2024) ......................... 1, 2, 5

Seila Law LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020)................................................... 6

Summers v. Earth Island Inst., 555 U.S. 488

(2009) ......................................................................... 6

United States v. Fruehauf, 365 U.S. 146 (1961) ........... 5

Virginia Mil. Inst. v. United States, 508 U.S.

946 (1993) .................................................................. 4

Whole Woman’s Health v. Jackson, 595 U.S. 30

(2021) ......................................................................... 6

Will v. Hallock, 546 U.S. 345 (2006) ............................. 5

Laws

Clean Air Act Amendments of 1970, Pub. L. No.

91-604, 84 Stat. 1676 .............................................. 10

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685 .................................................. 10

42 U.S.C.

§ 7607(c)................................................................... 10

§ 7607(d) .................................................................... 9

iv

Administrative Sources

Page(s)

Federal “Good Neighbor Plan” for the 2015

Ozone National Ambient Air Quality

Standards, 88 Fed. Reg. 36654 (June 5, 2023) ...... 1

U.S. Environmental Prot. Agency, Notice on

Remand of the Record of the Good Neighbor

Plan to Respond to Certain Comments (Dec.

3, 2024), https://www.epa.gov/system/files/

documents/2024-12/gnp-remandnotice_signed.pdf ...................................................... 9

Miscellaneous Authorities

16 Charles Alan Wright et al., Federal Practice

and Procedure § 3937.1 (3d ed. June 2024

update)....................................................................... 8

Congressional Rsrch. Serv., A Brief Overview of

Rulemaking and Judicial Review (rev. Mar.

27, 2017) .................................................................. 10

H.R. Rep. 95-294 (1977) ............................................... 11

Stephen M. Shapiro et al., Supreme Court

Practice (11th ed. 2019) ............................................ 6

William F. Pedersen, Jr., Formal Records and

Informal Rulemaking, 85 Yale L. J. 38 (1975) ..... 11

INTRODUCTION

The U.S. Environmental Protection Agency (EPA)

promulgated the rule challenged here to curb interstate

ozone pollution. Federal “Good Neighbor Plan” for the

2015 Ozone National Ambient Air Quality Standards,

88 Fed. Reg. 36654 (June 5, 2023) (“Rule”). This Court

granted emergency applications to stay the Rule’s

enforcement pending judicial review. Ohio v. EPA, 603

U.S. 279 (2024). EPA subsequently sought a partial

voluntary remand of the Rule to address only the procedural deficiency preliminarily identified by the Court’s

decision, i.e., a potentially insufficient agency response

to certain comments in the administrative record about

the Rule’s severability. The D.C. Circuit granted a

remand of the record and retained jurisdiction. Certain

parties that challenged the Rule below (but not all such

parties) filed this petition for certiorari seeking review

of the D.C. Circuit’s interlocutory order.

The petition for certiorari should be denied for the

reasons explained in EPA’s response to the petition.

State Respondents 1 write separately to underscore that

for at least three independent reasons the petition is an

exceedingly poor vehicle for reviewing the question

presented, and that petitioners are wrong on the merits

in any event. First, review in this interlocutory posture

is premature because subsequent proceedings in the

D.C. Circuit may render the question presented irrelevant and, if not, the question presented will be reviewable after final judgment. Second, there are serious

questions whether petitioners are aggrieved by a proce1 State Respondents are the States of New York, Connecticut,

Delaware, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania, and Wisconsin; the District of Columbia; the City of New

York; and Harris County, Texas.

2

dural order that directs another party to produce additional information, and therefore whether they have

appellate standing to seek review. Third, this Court will

benefit from allowing the question presented—which

was the subject of only abbreviated motion practice,

without oral argument—to percolate further in the D.C.

Circuit. The D.C. Circuit should receive briefing and

oral argument on the question presented, and be given

an opportunity to provide its reasoning if it ultimately

decides to rely on the EPA’s further response to

comments in issuing final judgment.

BACKGROUND

The relevant statutory framework and procedural

history of this case can be found in this Court’s decision

in Ohio v. EPA, 603 U.S. 279 (2024). In Ohio, this Court

stayed enforcement of the Rule pending the D.C. Circuit’s disposition of these cases and any petition for writ

of certiorari to review that disposition, if such writ is

timely sought. The Court reasoned that EPA had likely

failed to offer a sufficient explanation of the Rule’s severability in response to public comments submitted during

the notice-and-comment period. See id. at 293-94. These

comments suggested that the Rule would be invalid if it

ultimately applied to fewer States than at proposal. See

id.

In response to the Ohio decision, EPA asked the

D.C. Circuit for a partial voluntary remand of the Rule

to allow the agency to address only the “record deficiency

preliminarily identified by the Supreme Court in Ohio.”

Pet. App. 12a; see id. at 15a. EPA explained that it

would be “most efficient to address that possible error

now” rather than many months later; that a remand

would facilitate judicial review; and that the agency

3

anticipated completing the remand in a matter of

months. Pet. App. 18a; see id. at 15a. Petitioners

opposed, arguing that the Clean Air Act forecloses all

remedies except vacatur. Pet. App. 21a-22a (citing Ohio,

603 U.S. at 295 n.11); id. at 27a-28a.

In a short per curiam order, the D.C. Circuit ordered

“that the record be remanded to permit [EPA] to further

respond to comments in the record.” Pet. App. 2a. The

D.C. Circuit placed the case into abeyance and retained

jurisdiction. Pet. App. 2a. Four of the thirty-one parties

that challenged the Rule below filed this petition for

certiorari seeking review of the interlocutory order. 2

REASONS FOR DENYING THE PETITION

The petition for certiorari should be denied for the

reasons explained in EPA’s opposition to the petition.

State Respondents write to underscore that there are at

least three independent factors that render this petition

an extraordinarily poor vehicle for considering the question presented. Each factor is alone sufficient to warrant

denying certiorari. Moreover, petitioners are wrong on

the merits in any event.

I. This petition is an exceedingly poor vehicle for

considering the question presented, i.e., whether the

Clean Air Act permits a court to remand a rulemaking

2 The four parties that filed this petition for certiorari (hereafter,

“petitioners”) are the States of Ohio, Indiana, Kentucky, and West

Virginia. The remaining twenty-seven parties that challenged the

Rule below but did not file a petition for certiorari are the States of

Nevada, Utah, and Wisconsin; the Kentucky Energy and Environment Cabinet; and twenty-four industrial entities and trade associations.

4

record to allow the agency to provide further explanation

of its reasoning when the rule was promulgated.

First, review of the D.C. Circuit’s interlocutory order

would be premature because subsequent proceedings

may render the question presented irrelevant and, if not,

petitioners can ask this Court to review the question

presented after a final judgment issues.

The interlocutory posture of a case usually warrants

denying certiorari because, among other reasons, the

issues presented by an interlocutory order may not ultimately be dispositive and may instead become academic.

See, e.g., Abbott v. Veasey, 580 U.S. 1104, 1104 (2017)

(Roberts, C.J., statement respecting denial of certiorari); Virginia Mil. Inst. v. United States, 508 U.S. 946,

946 (1993) (Scalia, J., statement respecting denial of

certiorari). It is well settled that this Court does not

issue advisory opinions or opine on issues that are academic. See, e.g., Conway v. California Adult Auth., 396

U.S. 107, 110 (1969) (per curiam) (dismissing writ as

improvidently granted where decision would amount to

advisory opinion).

Here, subsequent proceedings in the D.C. Circuit

may render the question presented irrelevant to the litigation’s outcome. Although the D.C. Circuit’s interlocutory order allows EPA to provide a further explanatory

response to the comments that this Court identified in

the administrative record, the D.C. Circuit could decide

not to rely on that further response when it adjudicates

petitioners’ challenges to the Rule. Indeed, the case was

already fully briefed in the D.C. Circuit before the

interlocutory order issued (see Pet. 1), and the interlocutory order contemplates that the parties may request

supplemental briefing to address the further response

to comments that EPA provides. See Pet. App. 2a (asking

5

parties to submit motions to govern). Petitioners, as

part of that briefing, could raise to the D.C. Circuit their

arguments about whether EPA’s further response

should be considered by that court at all. And the D.C.

Circuit might ultimately issue a final judgment that

upholds the Rule without relying on the further

response. See Ohio, 603 U.S. at 318-20, 322 (Barrett, J.,

dissenting) (applying harmless-error analysis). Alternatively, the D.C. Circuit might issue a final judgment in

petitioners’ favor, notwithstanding the further response,

as petitioners have raised claims unrelated to the severability issue that could be the basis for a ruling in this

case. In either scenario, the question presented by the

certiorari petition will become irrelevant. The Court

should not intervene in the middle of this litigation to

decide a question that may not be outcome-determinative and may instead become purely academic. See

United States v. Fruehauf, 365 U.S. 146, 157 (1961).

This Court has departed from its usual practice of

declining to review interlocutory orders only in very rare

circumstances, such as, for example, granting review

when an important question would be “effectively

unreviewable” after final judgment, e.g., Will v. Hallock,

546 U.S. 345, 349 (2006) (citation omitted), or when an

immunity from suit, rather than a mere defense to

liability, is implicated, e.g., Ashcroft v. Iqbal, 556 U.S.

662, 671-72 (2009). No such circumstances exist here. If

the D.C. Circuit ultimately enters a final judgment that

does rely on EPA’s further response to comments, petitioners can seek review of the propriety of the record

remand at that point.

Second, the fact that petitioners seek review of a

procedural order that is interlocutory in nature raises

serious doubts about appellate standing. Cf. National

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

6

(2020) (Kavanaugh, J., statement respecting denial of

certiorari) (observing that petitioners may lack antitrust

standing). It is well settled that “‘standing must be met

by persons seeking appellate review, just as it must be

met by persons appearing in courts of first instance.’”

Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S.

197, 211 (2020) (quoting Hollingsworth v. Perry, 570

U.S. 693, 705 (2013)). Appellate standing requires “a

concrete injury” that is “traceable to the decision below.”

Id.; see Whole Woman’s Health v. Jackson, 595 U.S. 30,

38 (2021) (in interlocutory appeal, “review is limited to

the particular orders under review” and not any “ultimate merits question”). But here, the interlocutory order

does not injure petitioners. The order does not require

petitioners to take affirmative steps, cf. Seila Law, 591

U.S. at 211 (interlocutory order required production of

documents), and does not subject petitioners to any

compliance obligations. Indeed, the order has no immediate consequences for petitioners because the Rule is

stayed through at least the disposition of proceedings in

the D.C. Circuit. See Stephen M. Shapiro et al., Supreme

Court Practice 4-55 (11th ed. 2019).

To the extent petitioners argue that the order

infringes their alleged procedural right to judicial review

on the pre-Ohio record, it is well settled that the deprivation of a procedural right, “without some concrete

interest that is affected,” does not establish standing.

See Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009). In any event, such a purported procedural injury

is merely speculative. As explained above, petitioners

may ultimately obtain review based solely on the preOhio record because the D.C. Circuit could decline to

rely on EPA’s further response to comments in issuing

its final judgment. Petitioners’ speculation about a hypothetical procedural injury is insufficient to establish

7

appellate standing. See Clapper v. Amnesty Int’l USA,

568 U.S. 398, 401 (2013).

Third, the petition is a poor vehicle to resolve the

question presented because this Court does not have the

benefit of a lower court’s full consideration of that question. EPA’s request for a partial remand of the Rule was

the subject of only abbreviated motion practice, without

oral argument. And the court (necessarily) issued the

interlocutory order granting a partial remand of the

record without having evaluated the materials that

EPA ultimately produced upon remand. Cf. Does 1-3 v.

Mills, 142 S. Ct. 17, 18 (2021) (mem.) (Barrett, J.,

concurring in denial of application for injunctive relief)

(noting difficulties of evaluating issues “without benefit

of full briefing and oral argument”). The issue presented

is likely to percolate further in the D.C. Circuit because,

as noted, the interlocutory order contemplates the

potential for supplemental briefing after EPA issues its

further response to comments. See Pet. App. 2a. The

D.C. Circuit should have the opportunity to consider

any supplemental briefs, and the parties’ oral arguments, in determining whether to rely on EPA’s further

response to comments. And if the D.C. Circuit does ultimately rely on EPA’s further response, this Court would

benefit from having the lower court’s reasoning for that

decision. See Maslenjak v. United States, 582 U.S. 335,

354 (2017) (Gorsuch, J., concurring in part and concurring in the judgment) (explaining that court of appeals,

with aid of parties’ briefs, would yield insights that this

Court “cannot muster guided only by our own lights”).

II. The petition does not warrant the Court’s review

for the additional and independent reason that the D.C.

Circuit’s interlocutory order is consistent with longstanding administrative review principles and does not

violate the Clean Air Act. Petitioners’ contrary argu-

8

ments misconstrue the Act’s statutory provisions and

history.

Appellate courts may order limited remands while

retaining jurisdiction for a variety of reasons, including

that an agency’s statement of reasons is not comprehensive enough to permit judicial review. 16 Charles Alan

Wright et al., Federal Practice and Procedure § 3937.1

(3d ed. June 2024 update) (Westlaw). As this Court

recently explained, if an agency’s stated grounds for

action 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.” Department

of Homeland Sec. v. Regents of the Univ. of Cal., 591

U.S. 1, 20 (2020) (quotation marks and emphasis omitted). Circuit courts around the country commonly order

such explanatory remands. See, e.g., BNSF Ry. v.

Federal R.R. Admin., 105 F.4th 691, 696 (5th Cir. 2024).

And this Court has ordered or recommended such

remands. See, e.g., Camp v. Pitts, 411 U.S. 138, 143

(1973); Citizens to Pres. Overton Park, Inc. v. Volpe, 401

U.S. 402, 420 (1971), abrogated in part on other grounds

by Califano v. Sanders, 430 U.S. 99 (1977); see also

Harrison v. PPG Indus., Inc., 446 U.S. 578, 594 (1980)

(observing that remand is proper recourse for court faced

with inadequate administrative record); Ford Motor Co.

v. NLRB, 305 U.S. 364, 375 (1939) (commending agency

for seeking voluntary remand).

Contrary to petitioners’ arguments (Pet. 19-21),

nothing in the text or history of the 1977 Clean Air Act

amendments suggests that Congress displaced reviewing courts’ longstanding equitable authority to order an

explanatory remand. See McQuiggin v. Perkins, 569 U.S.

383, 397 (2013) (courts should “not construe a statute to

displace courts’ traditional equitable authority absent

the clearest command” (quotation marks omitted)). Peti-

9

tioners point to two provisions of the Act, but neither

provision prohibits explanatory remands.

Specifically, petitioners point (Pet. 19-20) to the Act’s

requirement that a 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). That provision defines

the universe of factual material upon which EPA may

base the final, binding policy determinations that constitute a final rule and has no application here. Here, EPA

made clear that it would not introduce any new facts or

data and instead provided an “amplified articulation” of

its prior response to comments that this Court

concluded are already in the administrative record. See

EPA, Notice on Remand of the Record of the Good

Neighbor Plan to Respond to Certain Comments (Dec.

3, 2024). And, contrary to petitioners’ atextual reading,

nothing in that provision bars “explanations” or “justifications” (Pet. 20) of an agency’s prior reasoning that a

court orders during judicial review. See Alpharma, Inc.

v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (quotation

marks omitted).

Petitioners also err in relying on the Act’s

requirement that the “record for judicial review shall

consist exclusively” of the categories of materials listed

in the statute. 42 U.S.C. § 7607(d)(7)(A). That provision

generally bars parties or agencies from supplementing

the record with materials that do not fall into one of the

statutorily listed categories. Id. But here, the D.C. Circuit’s interlocutory order allows EPA to introduce

material that, under this Court’s decision in Ohio, does

fall into one of the statutorily listed categories, namely,

“a response to each of the significant comments . . .

submitted . . . during the comment period.” 42 U.S.C.

§ 7607(d)(6)(B); see Pet. App. 2a. Because this Court

10

concluded in Ohio that EPA had likely misjudged the

significance of certain comments that are already part

of the administrative record, the D.C. Circuit acted

reasonably in allowing EPA to provide the explanatory

response that this Court determined was likely “required

by the statute and wrongfully omitted by EPA.” American Petroleum Inst. v. Costle, 609 F.2d 20, 22 (D.C. Cir.

1979) (per curiam); see Lead Indus. Ass’n, Inc. v. EPA,

647 F.2d 1130, 1183 (D.C. Cir. 1980).

In urging otherwise, petitioners mischaracterize

the history of the 1977 amendments that added these

two statutory provisions to the Clean Air Act. See Pet.

8-11, 20-21. Petitioners incorrectly contend that Congress amended the Act because, prior to 1977, the Act

allowed EPA to supplement the record “at any time

during the judicial-review process.” Pet. 8 (citing section

307(c) as problematic “first iteration” of Act). But the

1977 amendments left intact the allegedly problematic

provision that petitioners identify, which remains in the

Act today. See 42 U.S.C. § 7607(c). Compare Clean Air

Act Amendments of 1970, Pub. L. No. 91-604, § 12(a),

84 Stat. 1676, 1707-08 (§ 307(c)), with Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, § 305, 91 Stat.

685, 772-76. As before the 1977 amendments, section

307(c) (§ 7607(c)) continues to apply solely to formal

rulemakings conducted through a hearing “on the

record” using “trial-like procedures”—a process that is

irrelevant here. See Congressional Rsrch. Serv., A Brief

Overview of Rulemaking and Judicial Review 3 (rev.

Mar. 27, 2017).

There is also no evidence that Congress passed the

1977 amendments for the purpose of “forcing courts” to

conduct review without any explanatory remands

(contra Pet. 20-21). Instead, the amendments addressed

an issue unrelated to explanatory remands: at that time,

11

the Clean Air Act (like most organic statutes) did not

address informal notice-and-comment rulemaking and

thus did not provide any procedural mechanism to define

the “record” in such rulemaking. H.R. Rep. 95-294, at

318-19 (1977); see William F. Pedersen, Jr., Formal

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

(1975). To address that gap, the 1977 amendments

added the provisions (discussed above) that list categories of materials that constitute the administrative

record in informal rulemakings and state that a rule may

not be based on facts or information not placed on the

docket at promulgation. See H.R. Rep. 95-294, supra, at

319-21.

CONCLUSION

The Court should deny the petition for certiorari.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ELIZABETH A. BRODY

Assistant Solicitor General

MORGAN A. COSTELLO

CLAIBORNE E. WALTHALL

Assistant Attorneys General

barbara.underwood@ag.ny.gov

December 2024

* Counsel of Record