Amicus Curiae Brief — ExxonMobil Corporation, et al., Petitioners v. Environment Texas Citizen Lobby, Incorporated, et al.

Supreme Court briefApr 11, 2025

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No. 24-982

In the Supreme Court of the United States

_______________

EXXONMOBIL CORPORATION, et al.,

Petitioners,

ENVIRONMENTAL TEXAS CITIZEN LOBBY, INC., et al.

Respondent.

_________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ _

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF IOWA, WEST VIRGINIA, AND 25

OTHER STATES AS AMICI CURIAE

SUPPORTING GRANTING THE PETITION

BRENNA BIRD

Attorney General of

Iowa

ERIC WESSAN

Solicitor General

Counsel of Record

BREANNE A. STOLTZE

1305 E Walnut Street

Des Moines, IA 50319

eric.wessan@ag.iowa.gov

(515) 823-9117

Counsel for Amici Curiae

(additional counsel listed in addendum)

JOHN B. MCCUSKEY

Attorney General

of West Virginia

MICHAEL R. WILLIAMS

Solicitor General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

QUESTIONS PRESENTED

1. Whether a plaintiff in a Clean Air Act (“CAA”)

citizen suit may satisfy Article III’s traceability requirement merely by showing that she suffered the

“kinds of injuries” that defendants’ conduct “could

have caused.”

2. Whether this Court should overrule its holding,

in Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 582 U.S. 167 (2000), that the

availability of civil penalties paid to the government

can satisfy Article III’s redressability requirement for

private, citizen-suit plaintiffs.

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................... i

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

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

INTEREST OF AMICUS CURIAE ....................... 1

SUMMARY OF ARGUMENT ................................ 2

ARGUMENT .......................................................... 5

I. COOPERATIVE

FEDERALISM

PRINCIPLES

MUST

DRIVE

ANY

INTERPRETATION OF THE CLEAN AIR

ACT .............................................................. 5

States possess a vital historical role in

addressing air pollution. ....................................... 6

The Clean Air Act recognizes the States’

air protection role, creating a cooperative

federalism regime. ................................................ 9

II. FEDERALISM PRINCIPLES UNDERLIE

ANY

CLEAN

AIR

ACT

INTERPRETATION. ................................. 14

III.THE

FIFTH

CIRCUIT’S

RULING

DISRUPTS

THE

COOPERATIVE

FEDERALISM BALANCE OF THE CLEAN

AIR ACT. .................................................... 17

The Fifth Circuit’s interpretation

undermines federalist principles........................ 17

The Fifth Circuit’s interpretation stifles

State environmental protection efforts. ............. 20

CONCLUSION ..................................................... 23

ADDITIONAL COUNSEL ................................... 24

iii

TABLE OF AUTHORITIES

Cases

Arkansas v. Wildlife Fed’n v. ICI Americas, Inc.,

29 F.3d 376 (8th Cir. 1994) .................................... 20

Bond v. United States,

564 U.S. 211 (2011) ................................................ 14

Budget Prepay, Inc. v. AT&T Corp.,

605 F.3d 273 (5th Cir. 2010) ............................ 15, 17

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ................................................ 15

Gregory v. Ashcroft,

501 U.S. 452 (1991) .................................... 15, 16, 18

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc.,

484 U.S. 49 (1987) ...................................... 17, 20, 22

McDonnell v. United States,

579 U.S. 550 (2016) ................................................ 15

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................ 20

New York v. United States,

505 U.S. 144 (1992) .................................... 14, 15, 18

Nw. Env’t Advocs. v. City of Portland,

74 F.3d 945 (9th Cir. 1996) .................................... 23

Sackett v. Env’t Prot. Agency,

598 U.S. 651 (2023) ................................................ 16

Sierra Club v. U.S. Army Corp. of Eng’rs,

909 F.3d 635 (4th Cir. 2018) .................................. 18

United States Forest Serv. v. Cowpasture River Pres.

Ass’n,

590 U.S. 604 (2020) ................................................ 16

United States v. Bass,

404 U.S. 336 (1971) ................................................ 16

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) .................................................. 16

Wisconsin Dep’t of Health & Fam. Servs. v. Blumer,

534 U.S. 473 (2002) ................................................ 16

Statutes

33 U.S.C. § 1251 ...................................... 2, 4, 9, 10, 15

33 U.S.C. § 1313(c) .................................................... 10

33 U.S.C. § 1342 .................................................... 3, 10

33 U.S.C. § 1344(t)....................................................... 4

33 U.S.C. § 1365 .............................................. 3, 11, 18

42 U.S.C. § 6972(a)(2)................................................ 18

Ala. Const. art. IV, §§ 93.14-16 ................................... 7

Ark. Code § 15-22-906 ................................................. 8

Cal. Const. art. XIII, § 8 .............................................. 7

Fla. Const. art. VII, § 14.............................................. 8

Iowa Code § 455B.173 ................................................. 8

Iowa Const. Art. VII, § 10 ........................................... 7

La. Const. art. IX, § 1 .................................................. 7

Mich. Const. art. IV, § 52 ............................................ 7

Mo. Const. art. III, § 37(b)-(c), (e) ............................... 8

N.C. Const. art. XIV, § 5.............................................. 7

N.M. CONST. art. XX, § 21 ......................................... 7

Neb. Rev. Stat. § 81-1506(2)(f) .................................... 8

Pa. Const. art. I, § 27 ................................................... 7

W. Va. Code § 22-11-2(a) ............................................. 8

Wyo. Stat. § 35-11-301................................................. 8

INTEREST OF AMICUS CURIAE 1

Amici curiae States of Iowa, West Virginia, and

25 other States (“amici States”) submit this brief in

support of Petitioners, ExxonMobil Corporation, et al.,

urging this Court to reverse the Fifth Circuit’s decision. That decision broadened standing for Clean Air

Act (“CAA”) citizen suits, allowing plaintiffs to establish standing simply by showing that their injuries are

the “kinds of injuries” that defendants’ conduct “could

have” caused. App.308a. The Fifth Circuit also relied

on Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000), to

summarily conclude that plaintiffs satisfied Article

III’s redressability requirement based on the notion

that civil penalties and injunctive relief alike can deter future violations. App.501a–02a.

Amici States have a strong interest here. The

Fifth Circuit’s decision allows private citizens to sue

in federal court without making the traditional Article

III showing that the defendant “likely caused” their

injuries. It also applied Laidlaw’s “curious conclusion”

that citizens have standing to seek civil penalties

“even though any civil penalties won by the plaintiffs

aren’t actually paid to the plaintiffs” but to the U.S.

Treasury. App.77a (Statement of Ho, J.).

The Fifth Circuit’s decision upends the cooperative federalism enacted by Congress by drastically

expanding Article III standing for environmental

suits. That expanded standing disregards the States’

longstanding historical role in environmental regulation. Congress has long recognized that historical role

Pursuant to Rule 37.2, amici provided timely notice of their intent to file this brief to all parties.

and woven it directly into the cooperative federalist

framework of the Clean Air Act.

The Fifth Circuit’s interpretation interferes

with State authority over air quality and severely constrains congressionally approved State discretion over

Clean Air Act enforcement. Beyond the constitutional

indignity, the decision undermines State environmental innovation with little environmental benefit.

SUMMARY OF ARGUMENT

The Clean Air Act makes “the States and the Federal Government partners in the struggle against air

pollution.” Gen. Motors Corp. v. United States, 496

U.S. 530, 532 (1990). The original Act—enacted in

1963—“was rooted in a strong presumption of unchallenged state primacy on regulating air pollution.”

Brigham Daniels, Andrew P. Follett, & Joshua Davis,

The Making of the Clean Air Act, 71 Hastings L.J. 901,

908 (2020) (citing Pub. L. No. 88-206, 77 Stat. 392, 396

(1963)) (“[M]unicipal, State, and interstate action to

abate air pollution shall be encouraged and shall not

be displaced by Federal enforcement action except as

otherwise provided.”)).

Today, the Act still recognizes “that air pollution

prevention . . . and air pollution control at its source is

the primary responsibility of States and local governments.” 42 U.S.C. § 7401(a)(3). And “[t]he basic framework for controlling air pollution since the enactment

of the modern CAA in 1970 is one of cooperative federalism.” Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097, 1106 (2009).

Under the cooperative federalism model, “states

are partners, if not leaders, when it comes to environmental statutes.” Sen. Kevin Cramer, Restoring

States’ Rights and Adhering to Cooperative Federalism

in Environmental Policy, 45 Harv. J.L. & Pub. Pol’y

481, 500 (2022). Citizen-suit provisions under these

laws are merely meant “to spur and supplement government enforcement.” Courtney M. Price, Private Enforcement of the Clean Water Act, Nat. Resources &

Env’t, Winter 1986, at 31, 32. Citizen suits thus operate within the existing constitutional framework and

are not meant to authorize suits beyond the bounds of

Article III.

By ruling for the plaintiffs here, the Fifth Circuit drastically expanded Clean Air Act citizen suits—

and did so based on a flawed interpretation of Article

III principles. “The Clean Air Act’s citizen-suit provision already “push[es] against the limits of Article III.”

Env’t Texas Citizen Lobby, Inc. v. ExxonMobil

Corp.¸123 F.4th 309, 396 (Mem.) (2024) (Oldham, J.,

dissenting) (citing Richard H. Fallon, Jr. et al., Hart

and Wechsler’s The Federal Courts and the Federal

System 805 (7th ed. 2015)). And the Fifth Circuit’s decision “exacerbate[s] the constitutional tension” in

these suits. Id.

“[T]he federal government cannot implement

its air pollution program without the substantial resources, expertise, information, and political support

of state and local officials.” John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 Md. L.

Rev. 1183, 1224 (1995). But the Fifth Circuit’s approach here would upset the Clean Air Act’s “basic

framework” of cooperative federalism that “has remained unchanged since the initial passage of the

Act.” Holly Doremus & W. Michael Hanemann, Of Babies and Bathwater: Why the Clean Air Act’s Cooperative Federalism Framework is Useful for Addressing

Global Warming, 50 Ariz. L. Rev. 799, 817 (2008). The

Act explicitly recognizes that “Congress finds that air

pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility

of States and local governments.” 42 U.S.C.

§ 7401(a)(3).

Indeed, the Act expressly retains State authority, declaring that unless expressly provided, “nothing . . . shall preclude or deny” the rights of States to

“adopt of enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.”

42 U.S.C. § 7416(d); see also id. § 7412 (retaining State

authority to regulate radionuclide emissions).

“The Clean Air Act thus provides a cooperativefederalism approach to air quality regulation.” Alabama Env’t Council v. Adm’r, U.S. EPA, 711 F.3d

1277, 1280 (11th Cir. 2013) (citation omitted). “This

division of responsibility between the states and the

federal government ‘reflects the balance of state and

federal rights and responsibilities characteristic of our

federal system of government.’” Luminant Generation

Co. v. EPA, 675 F..3d 917, 921 (5th Cir. 2012) (quoting

Fla. Power & Light Co. v. Costle, 650 F.2d 579, 581

(5th Cir. 1981)). But an expansive reading of the citizen-suit provisions instead puts private actors in the

driver’s seat, directing compliance efforts toward mitigating litigation risk rather than toward the areas

that state and local experts conclude are most in need

of attention. See Gabriella Mahan, Uncooperative Federalism: Citizen Suits, Savings Clauses, and Their

Challenges to Negotiated Settlements, ABA Air Quality Committee Newsl., June 2018, at 3, 4.

The Fifth Circuit’s decision thus threatens the

Act’s balance, but this Court can restore it. Here, the

Court can ensure that the Clean Air Act citizen-suit

standing is read through the proper cooperative federalist lens as provided in the Act’s text.

ARGUMENT

COOPERATIVE FEDERALISM PRINCIPLES MUST DRIVE ANY INTERPRETATION OF THE CLEAN AIR ACT

Congress created a system of cooperative federalism for the States and federal government to complement each other’s actions in protecting the environment. “The Clean Air Act was the first modern federal

environmental statute to employ a ‘cooperative federalism framework,’ assigning responsibilities for air

pollution control to both federal and state authorities.”

Doremus, et al., supra at 817. The Act “created the

basic structure for air pollution control in the United

States.” Arnold W. Reitze, Jr., Federalism and the Inspection and Maintenance Program Under the Clean

Air Act, 27 Pac. L.J. 1461, 1477 (1996). And with it,

“Congress launched modern environmental ‘cooperative federalism.’” Adam Babich, Back to the Basics of

Antipollution Law, 32 Tul. Envtl. L.J.1, 41 (2018)

The cooperative federalism approach allows

States to tailor federal regulatory programs to local

conditions, promote competition within the federal

regulatory framework, and allow experimentation

with different approaches that might help find an optimal regulatory strategy. Phillip J. Weiser, Federal

Common Law, Cooperative Federalism, and Enforcement of the Telecom Act, 76 N.Y.U. L. Rev. 1692, 1695–

98 (2001). Indeed, the cooperative federalism approach is baked into the text of the Clean Air Act, and

any interpretation which ignores cooperative federalism principles ignores critical historical and contextual context.

1. States possess a vital historical role in

addressing air pollution.

Congress has long recognized “the states’ role

on the front lines” of air quality regulation. Babich, supra at 43. “Air pollution prevention falls under the

broad police powers of the states, which include the

power to protect the health of citizens in the state.”

Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1255 (9th

Cir. 2000). And “[t]he problem of air pollution exists at

the State and local level. That is where the public understands the problem.” S. Rep. No. 95-127 at 10 (May

10, 1977) (accompanying S. 252), reprinted in Comm.

on Public Works, 3 A Legislative History of the Clean

Air Act Amendments of 1977, at 1371, 1384 (1978).

Indeed, “[d]espite the growth of federal environmental law”—particularly as to interstate air pollution—Congress has gone to great lengths to preserve

an important role for the states in environmental policy-making.” Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models,

54 Md. L. Rev. 1141, 1172 (1995). And “State law retains considerable importance in the environmental

protection arena.” Id.

The States have long held this vital role because

different localities face different environmental challenges and different populations value different

environmental goals. For example, when Congress enacted the Clean Air Act, the “heavily industrial Rust

Belt area, where the effects of pollution from the burning of coal were most pronounced” focused on “the

harm to local public health caused by air pollution.”

Jason Scott Johnston, A Positive Political Economic

Theory of Environmental Federalization, 64 Case W.

Res. L. Rev. 1549, 1598 (2014). Meanwhile, the Southwestern States “were concerned about the effects on

tourist demand for pristine air” and “in preventing the

pollution of clean airsheds in undeveloped parts of the

country.” Id. And, today, States home to densely populated urban or industrialized areas face “[t]he most

difficult air planning challenges.” Reitze, supra at

1479; see also EPA, Map, 8-Hour Ozone Nonattainment Areas (2015 Standard), Green Book, (Feb. 28,

2025), available at https://perma.cc/2BK7-DYQT

(showing areas subject to more stringent pollutioncontrol regulations).

This “strong tradition of decentralized management” allows for “significant customization of standards” and allows States to tailor their standards based

on the individual needs in their communities. Robert

L. Fischman, Cooperative Federalism and Natural Resources Law, 14 N.Y.U. Envtl. L.J. 179, 192–93 (2005).

Thanks to this flexibility, States can experiment with

different pollution-regulation methods and can

quickly and efficiently respond to changes while

quickly reversing or amending ineffective policies. See

Henry N. Butler & Nathaniel J. Harris, Sue Settle,

and Shut Out the States: Destroying the Environmental Benefits of Cooperative Federalism, 37 Harv. J.L. &

Pub. Pol’y 579, 610 (2014).

States have embraced their environmental

stewardship role with many State constitutions enshrining natural resource protections. See, e.g., Iowa

Const. art. VII, § 10 (creating a natural resources trust

fund); Alaska Const. art VIII, § 2 (requiring that the

legislature “provide for the . . . conservation of all natural resources”); Cal. Const. art. XIII, § 8 (protecting

the “use or conservation of natural resources”); Mont.

Const. art. II, § 3 (declaring the “right to a clean and

healthful environment” for “all persons”).

In fact, one fifth State constitutions enshrine

clean air protections. See, e.g., Fla. Const. art. II, § 7;

La. Const. Art. IX, § 1; Mass. Const. art XCVII; Mich.

Const. art. IV, § 52; Minn. Const. art. XI, § 14; N.M.

Const. Art. XX, § 21; N.Y. Const. art. I, § 19; N.C.

Const. art. XIV, § 5; Pa. Const. art. I, § 27; Va. Const.

art. XI, § 1.

Many of those States declare conservation of air

quality and air pollution abatement to be public policy

concerns, requiring legislative action. See, e.g., Fla.

Const. art. II, § 7 (“Adequate provision shall be made

by law for the abatement of air and water pollution.”);

Mich. Const. art. IV, § 52 (“The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment

and destruction.”); N.M. Const. Art. XX, § 21 (legislature “shall provide for control of pollution and control

of despoilment of the air”); N.C. Const. art. XIV, § 5

(declaring policy of State “to control and limit the pollution of our air”); Va. Const. art. XI, § 1 (policy to ensure “that the people have clean air”).

Massachusetts, New York, and Pennsylvania go

even further, recognizing a right to “clean” and “pure”

air. Mass. Const. art. XCVII; N.Y. Const. art. I, § 19;

Pa. Const. art. I, § 27.

And several States’ constitutions put those commitments into action by establishing commissions or

setting up funds to keep air and other natural resources clean. See, e.g., Ark. Const. amend. 75 (creating Environmental Enhancement Funds); Minn.

Const. art. XI, § 14 (creating permanent environment

and natural resources trust fund for the “protection,

conservation, preservation, and enhancement of the

state’s air . . . and other natural resources”).

Both before and after the Clean Air Act’s enactment, State laws and regulations thus have been “essential component[s] in the evolution of environmental policy.” Dwyer, supra at 1185. And with decades “of

environmental federalism under their belts, many

states are sophisticated environmental players with

as much or . . . more expertise than the EPA.” Doremus, et al., supra at 825. As such, “[s]ome of the most

innovative environmental protection legislation has

been the product of state initiatives.” Percival, supra

at 1172–73 (citing California Initiative Measure of

Nov. 4, 1986) (Proposition 65) (codified at Cal. Health

& Safety Code § 25249.1 to .12 (West 1994)); Act of

Sept. 2, 1983, ch. 330, 1983 N.J. Laws (codified at N.J.

Stat. Ann. § 13:1K-6 to -35 (West 1992)); Mich. Comp.

Laws Ann. § 324.1701 (1994)).

2. The Clean Air Act recognizes the States’

air protection role, creating a cooperative federalism regime.

“The Clean Air Act largely preserves the traditional role of the states in preventing air pollution.”

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.,

498 F.3d 1031, 1042 (9th Cir. 2007) (citation omitted).

Before 1955, air pollution regulation was the sole public health responsibility of the States, and States enacted various regulations pursuant to their historical

police powers. See Arthur C. Stern, History of Air Pollution Legislation in the United States, 32 J. Air Pollution Control Ass’n 44, 44, 47 (1982); (discussing 1947

Cal. Stat. 1640; 1911 Iowa Acts 27; 1887 Minn. Special

Laws 623).

The States’ historical responsibility complements the Clean Air Act’s philosophy “to encourage

state, regional and local programs to control and abate

pollution, while spelling out the authority of the national government to step into interstate situations

with effective enforcement authority.” Edmund S.

Muskie, The Role of the Federal Government in Air

Pollution Control, 10 Ariz. L. Rev. 17, 18 (1968). To be

sure, outside the framework of the Clean Air Act, applying “the law of a particular State” to the issue of

interstate air pollution “would be inappropriate.” Am.

Elec. Power Co. v. Connecticut, 564 U.S. 410, 422

(2011). But the Act leaves States plenty of breathing

room.

Under the Clean Air Act, “[t]he primary federal

roles are setting national air quality standards,” while

“[t]he primary state role is deciding how to achieve the

federal air quality standards.” Doremus, et al., supra

at 817. States also retain the authority to set additional emission limits for certain pollution sources. Id.

This “basic division of responsibility” in the Act “reflects the cooperative federalism principles that have

long informed this nation’s air pollution control laws.”

In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., &

Prods. Liab. Litig., 959 F.3d 1201, 1214 (9th Cir.

2020). Thus, the Act “provides a focused example of a

modern program that operates at all levels of government, resulting from entwined governmental responsibilities.” Reitze, supra at 1466. The Act thus is a

“joint venture” between the States and federal government. In re Volkswagen, 959 F.3d at 1215 (citing Gen

Motors Corp., 496 U.S. at 532).

Under this State-federal partnership, the Clean

Air Act authorizes the EPA to identify air pollutants

and establish National Ambient Air Quality Standards. 42 U.S.C. §§ 7408–7409. States then bear “the

primary responsibility” for implementing those standards” Id. § 7407(a) (“Each State shall have the primary responsibility for assuring air quality within

[its] entire geographic area.”; id. § 7401(a)(3) (“[A]ir

pollution prevention . . . is the primary responsibility

of States and local governments.”).

To implement national air quality standards,

States must adopt and administer State Implementation Plans that meet certain statutory criteria. Id.

§ 7410. But States have “wide discretion in formulating [their] plan[s].” Union Elec. Co. v. EPA, 427 U.S.

246, 250 (1976). States are “at liberty to adopt whatever mix of emission limitations [they] deem[] best

suited to [their] particular situation,” “so long as the

ultimate effect of a State’s choice of emission limitations is compliance with the national standards for

ambient air.” Train v. Natural Res. Def. Council, Inc.,

421 U.S. 60, 79 (1975).

Accordingly, States play the primary role in administering the Clean Air Act. 42 U.S.C. § 7401(a)(3).

The Act limits the EPA’s implementation role to the

ministerial review of State plans for compliance with

Act requirements. See id. § 7410(k)(3) (“[T]he [EPA]

Administrator shall approve [a State Implementation

Plan or Plan revision] as a whole if it meets all the

applicable requirements of this chapter.”); see also

Michigan v. EPA, 268 F.3d 1075, 1083 (D.C. Cir. 2001)

(the EPA’s “overarching role is in setting standards,

not in implementation”). This division of responsibility between the states and the federal government “reflects the balance of state and federal rights and responsibilities characteristic of our federal system of

government.” Luminant Generation Co., 675 F.3d at

921–22 (citation omitted). Altogether, the Clean Air

Act expects that the federal government can set targets, but the States can often determine the means of

implementation—how the rubber meets the road.

Congress also intended that the States would

take a key role in Clean Air Act enforcement. State

Implementation Plans must provide for monitoring

systems, set up permitting schemes, and “include a

program to provide for the enforcement of the” emission-control measures. 42 U.S.C. § 7410(a)(2)(C); see

also id. (a)(2)(B); (a)(2)(L). But, in limited circumstances, the Clean Air Act also permits citizen suits.

See 42 U.S.C. § 7604.

Federalism concerns shape the citizen-suit section’s scope. The Clean Air Act was the first environmental statute to incorporate a citizen suit provision,

and “[a]lthough the citizen suit provision received bipartisan support . . . the provisions were not without

their critics.” Stephen Fotis, Private Enforcement of

the Clean Air Act and the Clean Water Act, 32 Am.

Univ. L. Rev. 127, 136, 146 & n.96 (1985) (citation

omitted). “The legislative history of the CAA’s groundbreaking citizen suit provision reveals that its opponents, both in the Congress and in the industry, feared

that the new avenue of litigation would engender

abuse.” Id. at 146–47.

For example, some members of Congress feared

that the provisions would cause an explosion of questionably meritorious lawsuits—no matter how well

the EPA performed its enforcement duties. See 116

Cong. Rec. 33, 102 (1970) (statement of Sen. Griffin);

116 Cong. Rec. 32,925–26 (1970) (statement of Sen.

Hruska). Those members worried that the extra suits

“would clog an already congested court system.” Fotis,

supra at 147. Industry representatives “predicted that

a multiplicity of suits would interfere with the EPA’s

prosecutorial discretion, thus leading to unfairness,

inequality, and inconsistency in enforcement.” Id. (citation omitted). “[B]oth those in Congress and in the

industry feared that citizens would bring frivolous and

harassing suits.” Id. (citing 116 Cong. Rec. 32,925-26

(1970) (statement of Sen. Hruska); Air Pollution 1970, Part 5: Hearings before the Subcomm. on Air

and Water Pollution of the Comm. on Public Works,

United States Senate on S. 3229, S. 3466, S. 3546, 91st

Cong., 2d Sess. 1583–90 (1970)).

The Clean Air Act thus contains several limitations on citizen suits. First, the Clean Air Act requires

a would-be litigant to send notice of his intent to sue

to the EPA Administrator, the State in which the violation allegedly occurred, and the alleged violator. 42

U.S.C. § 7604(b)(1)(A). The law then precludes the citizen from suing for sixty days, during which, EPA or

State may decide to file suit on its own. Id. Second, the

Act bars citizen suits when government enforcement

is underway. Id. § 7604(b)(1)(B).

“In summary, Congress carefully drafted a citizen suit provision to encourage public enforcement of

the CAA . . . statutory requirements without the risk

of abuse by venal citizens.” Fotis, supra at 155. But

Congress “did not empower citizens to act as private

attorneys general without limit,” id., and overly expansive interpretation of the Clean Air Act standing

would risk doing just that.

II.

FEDERALISM PRINCIPLES UNDERLIE

ANY CLEAN AIR ACT INTERPRETATION.

Even if Congress had not written cooperative

federalism into the Clean Air Act, the principles of

statutory construction also favor reading the Act

through a State-protective lens. Under the nation’s

federalist system, “States are not mere political subdivisions of the United States,” and “State governments

are neither regional offices, nor administrative agencies of the federal government.” New York v. United

States¸ 505 U.S. 144, 188 (1992).

The Constitution instead “leaves to the several

States a residuary and inviolable sovereignty.” The

Federalist No. 39, at 245 (C. Rossiter ed. 1961). “The

Framers concluded that allocation of powers between

the National Government and the States enhances

Freedom, first by protecting the integrity of the governments themselves, and second by protecting the

people, from whom all governmental powers are derived.” Bond v. United States, 564 U.S. 211, 221

(2011). This allocation of powers “preserves the integrity, dignity, and residual sovereignty of the States.”

Id. Federalism also secures to citizens the liberties

that derive from the diffusion of federal power.” New

York, 505 U.S. at 181 (citation and internal quotation

marks omitted).

The cooperative federalism framework in particular “necessarily implies that states may reach differing conclusions on specific issues relating to the implementation of the Act. Budget Prepay, Inc. v. AT&T

Corp., 605 F.3d 273, 281 (5th Cir. 2010) (citing Global

Naps, Inc. v. Mass. Dep’t of Telecomms. & Energy¸427

F.3d 34, 46 (1st Cir. 2005)). “Far from being a bug, a

patchwork of state-by-state implementation rules is a

feature of this system of cooperative federalism.” Id.

This Court has consistently understood that

“[t]he States unquestionably do retai[n] a significant

measure of sovereign authority . . . to the extent that

the Constitution has not divested them of their original powers and transferred them to the Federal Government.” New York, 505 U.S. at 156 (quoting Garcia

v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549

(1985)). Courts thus “begin with the axiom that, under

our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject

only to limitations imposed by the Supremacy Clause.

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

For example, in McDonnell v. United States,

this Court declined to construe a criminal statute “in

a manner that leaves its outer boundaries ambiguous

and involves the Federal Government in setting

standards of good government for local and state officials.” 579 U.S. 550, 576–77 (2016) (citation and internal quotation marks omitted). This Court instead

chose a “more limited interpretation” that was both

textually supported and free of “federalism concerns.”

Id.

And when interpreting statutes designed to advance cooperative federalism in particular, this Court

“ha[s] not been reluctant to leave a range of

permissible choices to the States, at least where the

superintending federal agency has concluded that

such latitude is consistent with the statute’s aims.”

Wisconsin Dep’t of Health & Fam. Servs. v. Blumer,

534 U.S. 473, 495 (2002).

If Congress “wishes to significantly alter the

balance between federal and state power,” the Court

“require[s] Congress to enact exceedingly clear language.” Sackett, 598 U.S. at 679 (quoting United

States Forest Serv. v. Cowpasture River Pres. Ass’n,

590 U.S. 604, 621–22 (2020)) (internal quotation

marks omitted). This clear-statement rule recognizes

that Congress’s ability to “legislate in areas traditionally regulated by the States” is an “extraordinary

power in the federalist system,” so courts “must assume Congress does not exercise [that power] lightly.”

Gregory, 501 U.S. at 460. As such, Congress must use

“unmistakably” clear language that places its intent

beyond dispute. Will v. Mich. Dep’t of State Police, 491

U.S. 58, 65 (1989). Without such language, statutes

“will not be deemed to have significantly changed” the

federal-state balance.” United States v. Bass, 404 U.S.

336, 349 n.16 (1971). The requirement holds additional force under the Clean Air Act given the Act’s

express policy that each State holds the “primary responsibility for assuring air quality within [its] entire

geographic area.” 42 U.S.C. § 7401(a)(3).

Layering these federalism principles over the

text of the Clean Air Act and the States’ historical role

in air quality regulation establish why courts should

avoid the constitutional and federalism questions that

overly broad citizen suit standing would create.

III.

THE FIFTH CIRCUIT’S RULING DISRUPTS THE COOPERATIVE FEDERALISM BALANCE OF THE CLEAN AIR ACT.

The Fifth Circuit stripped federalism principles

and historical context from its interpretation. Its expanded view of the Clean Air Act citizen-suit standing

frustrates core federalism principles by replacing

State primacy in Clean Air Act enforcement with unelected and unchecked citizen plaintiffs.

Too-broad citizen-suit regimes, like those here,

undermine federalism and frustrate the States’ and

Congress’s priorities. Cooperative federalism gives

States discretion and creative latitude. Budget Prepay, 605 F.3d at 281. But the fear of overzealous citizen suits prevents States from experimenting with

regulatory approaches. Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., 484 U.S. 49, 60 (1987). Indeed, “citizen enforcement may not be an effective

means of ensuring the most efficient implementation

of environmental laws,” and “[i]n some cases, environmental suits may even frustrate the objective of environmental protection.” Frank B. Cross, Rethinking

Environmental Citizen Suits, 8 Temp. Envt’l L. &

Tech. 55, 64 (1989).

1. The Fifth Circuit’s interpretation undermines federalist principles.

Federalism is not just an end in itself: Rather,

the federalist structure “assures a decentralized government that will be more sensitive to the diverse

needs of a heterogeneous society[,] increases opportunity for citizen involvement in the democratic processes[,] allows for more innovation and experimentation in government[, and] makes government more

responsive by putting States in competition for a mobile citizenry.” Gregory, 501 U.S. at 458 (citations

omitted).

Under the cooperative federalism system, “[i]f

state residents would prefer their government devote

its attention and resources to problems other than

those deemed important by Congress, they may choose

to have the Federal Government rather than the State

bear the expense of a federally mandated regulatory

program.” New York, 505 U.S. at 168. States also have

the option to supplement the federal program to the

extent State law is not preempted. Id.

Either way, “[w]here Congress encourages state

regulation rather than compelling it, state governments remain responsive to the local electorate’s preferences[, and] state officials remain accountable to the

people.” Id. For example, one State in a heavily industrialized area might prioritize “cleaning up fouled

airsheds” while another might be concerned “not with

dirty air, but with clean air” and keeping local

airsheds pristine. See Johnston, supra at 1598. In

other words, “the state may prefer protecting the environment one way to protecting it another way.” Sierra Club v. U.S. Army Corp. of Eng’rs, 909 F.3d 635,

648 (4th Cir. 2018). Cooperative federalism allows

States to take different approaches provided they still

satisfy the baseline federal standards.

But expanded citizen suits interfere with those

State decisions. These suits thus take the federalism

concerns already present in administrative law, Scott

A. Keller, How Courts Can Protect State Autonomy

from Federal Administrative Encroachment, 82 S. Cal.

L. Rev. 45, 94 (2008), and multiply them hundredfold.

Where, as here, a court grants citizen plaintiffs broad

enforcement authority, it creates an army of “private

attorneys general,” who lack the institutional concerns and built in checks that could temper even a federal agency. See Charles S. Abell, Ignoring the Trees

for the Forests: How the Citizen Suit Provision of the

Clean Water Act Violates the Constitution’s Separation

of Powers Principle, 81 Va. L. Rev. 1957, 1964 (1995).

Unlike government enforcers, “[c]itizen-suit plaintiffs . . . face no significant political repercussions for

setting unwise enforcement priorities,” allowing them

to pursue even “technical” violations of state-law conditions that go beyond the EPA. Jonathan H. Adler,

Stand or Deliver: Citizen Suits, Standing, and Environmental Protection, 12 Duke Env’t L. & Pol’y F. 39,

43, 49–50, 56–57, 62 (2001). Making matters worse,

the diligent-prosecution bar—under which citizens

cannot proceed when a state government is “diligently

prosecuting” the same violator—places federal courts

in the “uncomfortable, if not institutionally incompetent” position of “delving in [the state’s] eventual aims

and effort” in pursuing polluters. Peter A. Appel, The

Diligent Prosecution Bar to Citizen Suits: The Search

for Adequate Representation, 10 Widener L. Rev. 91,

103 (2003).

These concerns help explain why Congress’s approach to this “private [environmental] law enforcement” shows “a vague sense of suspicion and discomfort” with the citizen suit mechanism. Michael S.

Greve, The Private Enforcement of Environmental

Law, 65 Tul. L. Rev. 339, 342 (1990). Statutory limitations to citizen suits, such as the sixty-day notice requirement and government enforcement bar to suit

are the result of this suspicion. Fotis, supra at 154–

155. “Citizen suits were intended by Congress to be an

adjunct to governmental enforcement priorities, not to

supplant them.” Envt. Texas Citizen Lobby, Inc., 123

F.4th at 358 (Jones, J., dissenting) (citing Gwaltney,

484 U.S. at 60); see also Abell, supra, at 1961–62 (“limitations on citizen involvement” are “designed to ensure that citizen suits play a supplementary, and not

a superseding, role in the enforcement” of the Act). In

addition, all civil fines that a citizen suit obtains are

payable to the United States Treasury. 42 U.S.C.

§ 7604(a). This prohibition on profitable citizen enforcement “would be inexplicable if Congress considered private enforcement wholly unproblematic.”

Greve, supra, at 342.

Congressional limits thus ensure that citizen

suits “are only proper when the federal state, or local

agencies fail to exercise their enforcement responsibility, and that such suits should not considerably curtail

the governing agency’s discretion to act in the public

interest.” Arkansas v. Wildlife Fed’n v. ICI Americas,

Inc., 29 F.3d 376, 380 (8th Cir. 1994). Indeed, the

Clean Air Act’s overarching cooperative-federalism regime means little without clear citizen suit limitations. Yet the Fifth Circuit undermines these principles by removing a key jurisdictional limitation, upending this delicate balance.

2. The Fifth Circuit’s interpretation stifles State environmental protection efforts.

Overly broad Article III standing further frustrates core federalism tenets by hampering regulatory

innovation. “It is one of the happy incidents of the federal system that a single courageous State may, if its

citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest

of the country.” New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932) (Brandeis, J., dissenting). Federalism recognizes “the political reality that a smaller

unit of government is more likely to have a population

with preferences that depart from the majority’s. So it

is more likely to try an approach that could not command a national majority.” Michael W. McConnell,

Federalism: Evaluating the Founders’ Design for Federalism, 54 U. Chi. L. Rev. 1484, 1498 (1987). Put

simply: “Lower levels of government are more likely to

depart from established consensus simply because

they are smaller and more numerous.” Id. This means

that “[i]f innovation is desirable, it follows that decentralization is desirable.” Id. As such, “local laws can be

adapted to local conditions and local tastes, while a

national government must take a uniform–and hence

less desirable approach.” Id. at 1493. This flexibility

also gives local governments “greater opportunity and

incentive to pioneer useful changes.” Id. That is one

reason why “[t]he EPA’s regulations are drafted to be

applied with discretion.” Cross, supra, at 66.

But expanded citizen suits “run the risk of inconsistent and unfair enforcement, as citizens may

pursue even small and unavoidable violations” of environmental statutes. Cross, supra, at 66.

Some environmentalists might not see the

harm in overenforcement and might even find it beneficial, but “we should ask whether more litigation

over technical violations and aesthetic harms serves

the broader goals of cleaner air, purer water, and the

safeguarding of the natural world.” Adler, supra at 82

Citizen suits also come at considerable taxpayer

expense as litigation expenses can divert funds from

essential government services. See Susan A. Macmanus, The Impact of Litigation on Municipalities:

Total Cost, Driving Factors, and Cost Containment

Mechanisms, 44 Syracuse L. Rev. 833, 840–41 (1993).

Indeed, citizen suits have sometimes been pursued

against the States themselves, even though such efforts are “profoundly contrary to the Act’s remedial design.” Sierra Club v. Korleski, 681 F.3d 342, 352 (6th

Cir. 2012) (Sutton, J.).

Perhaps the policy could be justified if citizen

suits somehow enhanced air quality or reduced air pollution, but increased citizen suits do not have that effect. “While some citizen suits are no doubt motivated

by pure intentions, and some certainly produce tangible environmental gains, it is not clear how much environmental benefit citizen-suit provisions actually

provide.” Adler, supra, at 51.

It might seem natural to assume that more citizen suits mean more environmental protection,

“[u]nfortunately, citizen enforcement may not be an

effective means of ensuring the most efficient implementation of environmental laws[, and] . . . may even

frustrate the objective of environmental protection.”

Cross, supra, 64. That is because citizen plaintiffs do

not face the same political and economic constraints

that might limit government enforcement. Adler, supra, at 51. Instead, “citizen-suit provisions encourage

the filing of suits against vulnerable plaintiffs irrespective of the environmental benefit.” Id. at 51. And

“[e]nvironmental citizen suits facilitate and encourage

litigation over paperwork violations and permit exceedences, which may or may not impact environmental quality.” Id. at 58.

Indeed, “[t]here is a growing consensus in environmental law that environmental regulations can

better achieve their goals if they are more flexible.”

Adler, supra, at 66 (citing Karl Hausker, Reinventing

Environmental Regulation: The Only Path to a Sustainable Future, 29 Envtl. L. Rep. 10, 148 (March

1999)). The Fifth Circuit’s result removes that flexibility and instead “effectively usurps federal, state, and

local environmental enforcement decisions.” Envt.

Texas Citizen Lobby, Inc., 123 F.4th at 358 (Jones, J.,

dissenting). The cooperative federalism woven into the

Clean Air Act is meant to avoid just such a result.

CONCLUSION

This Court should grant certiorari to reverse

the Fifth Circuit Court’s judgment.

Respectfully submitted,

BRENNA BIRD

Attorney General

State of Iowa

ERIC WESSAN*

Solicitor General

BREANNE A. STOLTZE

Assistant Solicitor General

BREANNE STOLTZE

1305 E Walnut Street

Des Moines, IA 50319

eric.wessan@ag.iowa.gov

breanne.stoltze@ag.iowa.

gov

(515) 823- 9177

April 11, 2024

JOHN B. MCCUSKEY

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

mwilliams@wvago.gov

(304) 558-2021

*Counsel of Record

ADDITIONAL COUNSEL

Steve Marshall

Attorney General of

Alabama

Kris Kobach

Attorney General of

Kansas

Treg Taylor

Attorney General of

Alaska

Liz Murrill

Attorney General of

Louisiana

Tim Griffin

Attorney General of

Arkansas

Lynn Fitch

Attorney General of

Mississippi

James Uthmeier

Attorney General of

Florida

Andrew T. Bailey

Attorney General of

Missouri

Chris Carr

Attorney General of

Georgia

Austin Knudsen

Attorney General of

Montana

Raúl R. Labrador

Attorney General of

Idaho

Michael T. Hilgers

Attorney General of

Nebraska

Theodore E. Rokita

Attorney General of

Indiana

John Formella

Attorney General of

New Hampshire

Drew Wrigley

Attorney General of

North Dakota

Dave Yost

Attorney General of

Ohio

Ken Paxton

Attorney General of

Texas

Gentner Drummond

Attorney General of

Oklahoma

Derek E. Brown

Attorney General of

Utah

Dave Sunday

Attorney General of

Pennsylvania

Jason S. Miyares

Attorney General of

Virginia

Alan Wilson

Attorney General of

South Carolina

Bridget Hill

Attorney General of

Wyoming

Marty Jackley

Attorney General of

South Dakota

Jonathan Skrmetti

Attorney General of

Tennessee

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.