Reply 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,

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

______________________________

REPLY IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

______________________________

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

Ohio Solicitor General

*Counsel of Record

MATHURA J. SRIDHARAN

ZACHERY P. KELLER

Deputy Solicitors General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

thomas.gaiser@ohioago.gov

Counsel for Petitioner

State of Ohio

(additional counsel listed at the end)

QUESTION PRESENTED

Whether the Clean Air Act permits remand to the

EPA to supplement the administrative record with

new information and justifications after a rule is

promulgated.

ii

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES ..................................... iii

REPLY ......................................................................... 1

I.

II.

This case presents a unique chance to

answer an important question about the

Clean Air Act. ................................................ 2

A.

The question presented is important

for litigation under the Clean Air Act. .... 2

B.

This case’s interlocutory posture is a

strength, not a weakness. ........................ 4

The D.C. Circuit erred by granting a midlitigation remand. .......................................... 7

A.

The remand violated both the Clean

Air Act’s text and this Court’s earlier

guidance.................................................... 8

B.

The EPA’s contrary arguments are

unpersuasive. ........................................... 9

CONCLUSION.......................................................... 12

iii

TABLE OF AUTHORITIES

Cases

Page(s)

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

Regul. Comm’n,

988 F.2d 146 (D.C. Cir. 1993) ............................. 11

Alpharma, Inc. v. Leavitt,

460 F.3d 1 (D.C. Cir. 2006) ................................... 8

Biden v. Nebraska,

600 U.S. 477 (2023) ............................................... 4

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................... 4

Calcutt v. FDIC,

598 U.S. 623 (2023) ............................................... 9

Dep’t of Homeland Sec. v. New York,

140 S. Ct. 599 (2020) ............................................. 7

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

Univ. of Cal.,

591 U.S. 1 (2020) ................................................... 8

EME Homer City Generation, L.P. v.

EPA,

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

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ............................................... 4

Harrel v. Raoul,

144 S. Ct. 2491 (2024) ........................................... 4

iv

Hollingsworth v. Perry,

570 U.S. 693 (2013) ............................................... 7

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

591 U.S. 657 (2020) ............................................... 4

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ......................................... 11

Michigan v. EPA,

579 U.S. 903 (2016) ............................................... 6

Michigan v. EPA,

No. 15-1152, 2016 WL 1043192 ............................ 6

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ............................................... 4

Nielsen v. Preap,

586 U.S. 392 (2019) ............................................... 4

North Carolina v. EPA,

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

Ohio v. EPA,

603 U.S. 279 (2024) ............2, 3, 5, 6, 7, 8, 9, 10, 11

Ohio v. EPA,

969 F.3d 306 (6th Cir. 2020) ................................. 7

Oklahoma v. EPA,

No. 23-1067 ............................................................ 4

United States ex rel. Schutte v.

SuperValu Inc.,

598 U.S. 739 (2023) ............................................. 10

v

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ................................................. 8

Trump v. Hawaii,

585 U.S. 667 (2018) ............................................... 4

U.S. v. Skrmetti,

No. 23-477 .............................................................. 4

Wisconsin v. EPA,

938 F.3d 303 (D.C. Cir. 2019) ......................... 3, 11

Statutes and Rules

89 Fed. Reg. 99105 (Dec. 10, 2024) ........................ 3, 9

42 U.S.C. §7607 ..............................1, 2, 3, 5, 6, 8, 9, 10

Other Authorities

Webster’s New Collegiate Dictionary

(1975) ................................................................... 10

REPLY

This case asks whether the Clean Air Act allows a

federal court to remand a matter to the EPA—after a

rule’s promulgation—to supplement the administrative record. The answer is no. The Clean Air Act prohibits the EPA from supporting a rule with “any information or data” that was not “placed in the docket as

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

§7607(d)(6)(C). Courts should not circumvent this

prohibition by sending matters back to the EPA long

after promulgation. But whatever the answer, the

question presented is undoubtedly significant. The

circuits (especially the D.C. Circuit) need to know

whether, and to what extent, the Clean Air Act permits remands to the agency for record supplementation in the many Clean-Air-Act cases that they review.

The EPA does not seriously dispute the importance

of the question presented. It instead encourages the

Court to delay review until a later stage of the case.

But the issue’s nature renders the case’s interlocutory

posture a feature, not a bug. Right now, this case asks

a discrete, purely legal question about federal courts’

remand authority under the Clean Air Act. But if the

Court awaits further proceedings, the question presented is likely to be buried in myriad other issues—

including highly technical arguments about the rule

itself. The current posture keeps the case laser-focused on the rulemaking process.

The EPA also misstates the scope of judicial power

in this area by reframing the question presented as

one about remand without vacatur. It spends little

time on the Clean Air Act’s text, instead preferring to

reframe the case as one about remand without vacatur in ordinary administrative-law cases. Again,

2

whatever the status of that broader debate, the question presented here offers a more specific answer,

grounded in statutory text. Pet.17–18.

I.

This case presents a unique chance to

answer an important question about the

Clean Air Act.

This case asks whether the Clean Air Act allows

remand for record development. That question is important, and this case is an ideal vehicle for resolving

it. The EPA’s contrary arguments miss the mark.

A.

The question presented is important

for litigation under the Clean Air Act.

Recall this case’s history. The EPA promulgated a

regulation under the Clean Air Act (a federal-implementation plan) that set air-quality standards for

twenty-three upwind States. Ohio v. EPA, 603 U.S.

279, 284–89 (2024). But the EPA failed to consider

“[w]hat happens” if “many of the upwind States fall

out” of the federal plan. Id. at 293. Because the EPA

failed to consider that important aspect of the problem, this Court stayed the plan. Id. at 293–94, 300.

As part of its stay analysis, the Court recognized that

“the Clean Air Act prevents” judges “from consulting

explanations and information offered after the rule’s

promulgation.” Id. at 295 n.11 (citing §7607(d)(6)(C),

emphasis added). The Court further recognized that,

if the challengers were to show the EPA’s action was

“arbitrary or capricious on the existing record,” the

challengers would “be entitled to ‘reversal’” of the federal plan. Id. at 294 & 295 n.11 (quoting §7607(d)(9),

emphasis added, alterations accepted).

The D.C. Circuit, however, did not reverse the federal plan. Nor did it analyze the lawfulness of the

3

federal plan on the existing record. It instead granted

a remand without a merits decision. The court specifically explained that it was remanding “the record” so

that the EPA could “further respond to comments”

concerning its plan. Pet.App.2a. The EPA took up

that invitation. EPA BIO 7. It authored a “supplemental response” to “provide an ‘amplified articulation’ of the [EPA’s] methodology.” 89 Fed. Reg. 99105,

99105–06 (Dec. 10, 2024). This “amplified” response

purports to answer questions that had not been answered at promulgation, accord Ohio, 603 U.S. at 293–

94.

This Court should accept review to clarify whether

the Clean Air Act permits such a do-over. That clarification matters a great deal for future cases. As all

agree, federal rulemaking under the Clean Air Act is

an oft-litigated area. See Pet.23 (collecting cases);

EPA BIO 15 (same). The D.C. Circuit—the sole forum

available to challenge “nationally applicable regulations,” §7607(b)(1)—claims authority to remand matters to the EPA for record supplementation in CleanAir-Act cases. See, e.g., Wisconsin v. EPA, 938 F.3d

303, 336 (D.C. Cir. 2019) (per curiam); EME Homer

City Generation, L.P. v. EPA, 795 F.3d 118, 132 (D.C.

Cir. 2015); North Carolina v. EPA, 550 F.3d 1176,

1178 (D.C. Cir. 2008) (per curiam). But that claim of

judicial power in the Clean-Air-Act context runs afoul

of the Act’s text, see §7607(d), and this Court’s reading

of that text, see Ohio, 603 U.S. at 294 & 295 n.11. It

follows that this matter warrants the Court’s sustained attention.

4

B.

This case’s interlocutory posture is a

strength, not a weakness.

The EPA incants the typical vehicle issues, but inspections reveal each criticism is superficial.

The agency’s main push is for this Court to follow

its “usual practice” of not reviewing interlocutory orders. EPA BIO 8. That position starts on decent footing: this Court is often “wary of taking cases in an

interlocutory posture.” Harrel v. Raoul, 144 S. Ct.

2491, 2492 (2024) (Thomas, J., statement regarding

the denial of certiorari). But that apprehension sometimes gives way to other considerations that tilt this

Court toward review of interlocutory decisions that

present important legal questions. See, e.g., Oklahoma v. EPA, No. 23-1067; U.S. v. Skrmetti, No. 23477; Moody v. NetChoice, LLC, 603 U.S. 707, 721–22

(2024); Biden v. Nebraska, 600 U.S. 477, 488–89

(2023); Fulton v. City of Philadelphia, 593 U.S. 522,

531–32 (2021); Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania, 591 U.S. 657, 663 (2020);

Nielsen v. Preap, 586 U.S. 392, 400 (2019); Trump v.

Hawaii, 585 U.S. 667, 681–82 (2018); Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 704 (2014).

The Court should grant such review here. This is

the rare case where an interlocutory posture is an advantage. The judicial practice of remanding a matter

to an agency while leaving the challenged rule in place

usually occurs after the court reaches the merits of a

rule’s lawfulness. Appeals from such decisions thus

typically focus on a rule’s merits—leaving remand

questions as an afterthought. That is presumably

why, despite general interest in the subject, see

Pet.17–18, the practice of remanding rules to agencies

has received little attention from this Court. Here,

5

however, the D.C. Circuit remanded the federal plan

to the EPA without reaching the plan’s lawfulness.

That posture isolates the remand question. That, in

turn, makes this case a rare chance to focus on a recurring—but overlooked—question about post-promulgation record supplementation under the Clean Air

Act.

The question presented can be cleanly resolved in

this posture. Because this case involves a discrete legal issue, further development will not assist the

Court in answering the question presented. Quite the

opposite is true. As the Court no doubt remembers

from stay proceedings, the regulated industries have

identified several problems with the federal plan,

many of which are highly technical. See Ohio, 603

U.S. at 294 n.10; id. at 321 (Barrett, J., dissenting). If

the proceedings below continue, those arguments will

eventually sideline—and perhaps completely overwhelm—the legal question presented here. While the

EPA suggests that awaiting review has no downside,

see EPA BIO 9–10, it is actually nudging the Court to

avoid the question altogether.

The EPA’s other avoidance arguments fare no better. For example, the EPA briefly mentions the lack

of a circuit split. EPA BIO 8. But the agency rightly

does not dwell on that point. The D.C. Circuit is the

forum for most (but not all) cases involving rulemaking under the Clean Air Act. See §7607(b)(1). That

shrinks the chance of a circuit split, reducing the point

of waiting for further percolation. To be sure, there is

a widely held belief among the circuits that judges

have the power to remand unlawful regulations—

while still leaving them in place—to allow agencies to

“cure” problems. See EPA BIO 15–16 n.3. But that

reflexive belief provides more reason for this Court’s

6

review. Regardless of whether courts possess the

broad remand power in typical administrative-law

cases, Congress took sides in that debate in the Clean

Air Act when it expressly prohibited the EPA from belatedly curing problems with its record. See §7607(d);

Ohio, 603 U.S. at 295 n.11. The Court should therefore step in to prevent entrenched views about judicial

power, taken from ordinary administrative-law cases,

from overriding this Act’s textual mandate.

Three further points about this case as a vehicle

bear mention. First, this case differs from those to

which the EPA compares it. Take, for example, this

Court’s denial of certiorari in Michigan v. EPA, 579

U.S. 903 (2016). The question there was whether a

reviewing court can leave an unlawful rule in place for

further proceedings after determining that the rule

was promulgated without statutory authority. Michigan v. EPA, No. 15-1152, 2016 WL 1043192, at *i (U.S.

Mar. 14, 2016). Because that question differs fundamentally from the one here, the analysis differed in

critical respects. The Michigan petition centered on

the “basic question” in any administrative-law case “of

whether a court may leave an unauthorized agency action in place.” Id. at *11. And, in a post-merits-decision posture, much of that discussion focused on

thorny questions of remedy in administrative-law

challenges. Id. at *11–20. Consequently, the petition

did not focus on the question of post-promulgation,

and pre-merits-review, record development under the

Clean Air Act. It did not address §7607(d)(6)(C)—the

keystone of the argument here—at all. The comparison is thus inapposite.

Second, contrary to the state respondents’ suggestions, the States have appellate standing. See NY BIO

5–7. Notably, the EPA does not press this standing

7

argument—for good reason. The States have standing

to challenge the federal plan because, among other

things, the plan injures them by “impair[ing] their

sovereign interests in regulating their own industries

and citizens.” See Ohio, 603 U.S. at 291. While the

States obtained a stay of the plan, they have not yet

“won” this case and permanently prevented such injuries. See Hollingsworth v. Perry, 570 U.S. 693, 705

(2013). With the case unfinished, the States have

every right to appeal an adverse ruling that benefits

the opposing party—the EPA—by allowing it to unlawfully expand the record.

Third, as all seem to agree, this appeal presents no

mootness concern. That is no small matter. Today’s

age of cyclical agency rulemaking, challenges thereto,

and nationwide injunctions, often leaves the regulatory landscape in flux. Cf. Dep’t of Homeland Sec. v.

New York, 140 S. Ct. 599, 601 (2020) (Gorsuch, J., concurring in grant of stay). Consequently, agencies commonly claim that legal challenges to their actions have

become moot. E.g., Ohio v. EPA, 969 F.3d 306, 308

(6th Cir. 2020). But here, neither the EPA nor the

state respondents claim that, if this Court takes up

this case now, it is likely to become moot before this

Court decides it. By contrast, if the Court awaits the

prospect of review after more proceedings below, the

odds are strong that regulatory developments will

shift the focus of litigation. If such a shift occurs, the

important problem this case presents will go unsolved.

II.

The D.C. Circuit erred by granting a midlitigation remand.

The EPA spends a large portion of its response discussing the merits of the question presented. See EPA

BIO 11–17. Its arguments are wrong, both as a

8

matter of statutory text and under this Court’s reasoning in Ohio v. EPA, 603 U.S. 279.

A.

The remand violated both the Clean Air

Act’s text and this Court’s earlier

guidance.

One “basic” rule of administrative law is that an

“agency must defend its actions based on the reasons

it gave when it acted.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 24 (2020); accord

SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). It is

perhaps true, as the EPA posits, that this general rule

does not “freeze[] an agency’s exercise of its judgment

after an initial decision has been made.” See EPA BIO

12–13 (quoting Alpharma, Inc. v. Leavitt, 460 F.3d 1,

6 (D.C. Cir. 2006)). But whatever the guiding principle for most administrative-law cases, the Clean Air

Act takes things further by limiting the EPA’s rulemaking to “information or data” included “in the

docket” by the “date of … promulgation.”

§7607(d)(6)(C). Surrounding text reinforces the limit.

A nearby provision restricts the “record for judicial review … exclusively” to the “material” supporting the

rule’s promulgation. §7607(d)(7)(A). Another nearby

provision addresses the remedies permissible under

the Clean Air Act. It says that courts “may reverse”

an unlawful agency action, §7607(d)(9). A “remand to

supplement the record” is not on the judicial menu.

The Court already confronted this provision in its

stay decision. Before that decision, the EPA had tried

to provide “further explanations” for its federal plan

after promulgation. Ohio, 603 U.S. at 295 n.11. But,

the Court explained, the Clean Air Act’s text “prevent[ed]” it “from consulting explanations and information offered after the rule’s promulgation.” Id.

9

That limit, the Court presciently warned, also applied

to other “courts that may in the future assess the [federal plan’s] merits.” Id. In other words, this Court

explained that the ultimate decision regarding the

federal plan’s legality would be made “on the existing

record.” Id.

Nonetheless, the D.C. Circuit remanded “the record” to the agency. Pet.App.2a. The purpose of this

remand, the circuit explained, was for the EPA to offer

“further” explanation in the light of “comments in the

record.” Id. Unsurprisingly, the EPA ran with that

latitude. It recently unveiled an “amplified articulation” of its “methodology.” See 89 Fed. Reg. at 99106,

99123. The EPA did just what the Court forewarned,

“offer[ing]” “explanations and information … after the

rule’s promulgation.” Ohio, 603 U.S. at 295 n.11. The

D.C. Circuit should have never allowed a maneuver

that the Act forbids.

B.

The EPA’s contrary arguments are

unpersuasive.

For starters, most of the authority the EPA cites

does not involve the Clean Air Act. E.g., EPA BIO 11

(citing Calcutt v. FDIC, 598 U.S. 623, 628–29 (2023)

(per curiam)). That matters because, regardless of

whether federal courts possess broad remand powers

in typical administrative-law cases—also an important question, to be sure—the Clean Air Act prohibits post-promulgation expansion of the administrative record. §7607(d)(6)(C); see Pet.18. It follows that

the EPA cannot import general rules from other contexts, such as cases involving the Administrative Procedure Act.

The EPA’s discussion of the statutory text is halfhearted. The agency suggests that the remand here

10

did not violate the Clean Air Act because the agency

did not add any new facts or data to the record. See

EPA BIO 7, 13. But the statutory limit is broader

than the EPA suggests. Recall that the text prohibits

the EPA from adding “any information”—not just raw

“data”—that “has not been placed in the docket as of

the date of … promulgation.” §7607(d)(6)(C). And the

ordinary meaning of “‘information’ is broad.” United

States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739,

751 n.4 (2023). “Information” includes not only

“purely factual information,” but also refers “to all

‘knowledge obtained from investigation, study, or instruction.’” Id. (quoting Webster’s New Collegiate

Dictionary 592 (1975)). Here, the “knowledge obtained from” the EPA’s expanded articulation of its

methods, found nowhere in the original rule, falls

within that ordinary meaning. Unsurprisingly, this

Court confirmed that reviewing courts cannot consult

new “explanations” under §7607(d)(6)(C). Ohio, 603

U.S. at 295 n.11.

The EPA is also too quick to dismiss this Court’s

stay analysis. See EPA BIO 17. That analysis, the

agency stresses, was in a “preliminary posture” and

focused on the challengers’ likelihood of success. Id.

That is true, but it oversimplifies what happened during the stay proceedings. The issues presented at that

stage were predominantly legal, and this Court decided them after voluminous briefing and a lengthy

argument. Ohio, 603 U.S. at 290. Most important for

present purposes, the Court explained why the ultimate merits analysis in this case would turn on

whether the federal plan “was arbitrary and capricious on the existing record.” Id. at 295 n.11. Again,

the Court directly warned “[lower] courts that may in

the future assess the [federal plan’s] merits” that they

11

could not consult “explanations and information offered after the rule’s promulgation.” Id. Apparently,

in the EPA’s view, that warning was just wasted

words.

At bottom, the EPA encourages this Court to replace congressional authority with judicial authority.

The agency asks this Court to rubberstamp the D.C.

Circuit’s “commonsense approach” for deciding when

remands are appropriate in Clean-Air-Act cases. EPA

BIO 15–16. Under that approach, which was derived

originally from general, ordinary administrative-law

cases not subject to the Clean Air Act’s specific requirements, federal judges have broad discretion to (1)

decide how serious a regulation’s unlawfulness really

is and (2) how disruptive it will be for the agency to

change course from its unlawful action. See AlliedSignal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d

146, 150–51 (D.C. Cir. 1993). The EPA promises that

this approach has real limits. EPA BIO 15. But it is

hard to spot them. Tellingly, in recent years, the D.C.

Circuit has used this framework to make policy calls

about whether a limited remand is needed to avoid

“significant harm to the public health or the environment.” See Wisconsin, 938 F.3d at 336. Thus, at day’s

end, the EPA’s preferred approach coincides with

judges’ policy beliefs displacing the Clean Air Act’s

text. But because “policy preferences” have no place

in “judging,” Loper Bright Enters. v. Raimondo, 144 S.

Ct. 2244, 2268 (2024), that is a sure sign that this

Court’s review is warranted.

12

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

Ohio Solicitor General

*Counsel of Record

MATHURA J. SRIDHARAN

ZACHERY P. KELLER

Deputy Solicitors General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

thomas.gaiser@ohioago.gov

Counsel for Petitioner

State of Ohio

DECEMBER 2024

13

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

14

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