Reply Brief — Oklahoma, et al., Applicants v. Environmental Protection Agency, et al.
Supreme Court briefSep 24, 2024
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No.24A213
In the Supreme Court of the United States
OKLAHOMA, ET AL.,
APPLICANTS,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
REPLY IN SUPPORT OF APPLICATION FOR STAY OF FINAL
AGENCY ACTION DURING PENDENCY OF PETITION FOR REVIEW
On Application For Stay To The
United States Court Of Appeals For The District Of Columbia
To the Honorable John G. Roberts, Jr.,
Chief Justice of the United States and Circuit Justice for the United States
Court of Appeals for the District of Columbia Circuit
GENTNER DRUMMOND
Attorney General
GARRY M. GASKINS, II
Solicitor General
JENNIFER L. LEWIS
Deputy Attorney General
OFFICE OF THE ATTORNEY
GENERAL OF OKLAHOMA
313 NE Twenty-First St.
Oklahoma City, OK 73105
CARROLL WADE MCGUFFEY III
TROUTMAN PEPPER
HAMILTON SANDERS LLP
600 Peachtree St. N.E., Suite 3000
Atlanta, GA 30308
MISHA TSEYTLIN
Counsel of Record
KEVIN M. LEROY
KAITLIN L. O’DONNELL
EMILY A. O’BRIEN
DYLAN DEWITT
TROUTMAN PEPPER
HAMILTON SANDERS LLP
227 W. Monroe, Suite 3900
Chicago, Illinois 60606
(608) 999-1240
misha.tseytlin@troutman.com
JEFF P. JOHNSON
CARLY ROTHMAN SIDITSKY
TROUTMAN PEPPER
HAMILTON SANDERS LLP
1001 Haxall Point, Suite 1500
Richmond, VA 23219
Counsel for the State of Oklahoma
(Additional counsel listed on following pages)
STEVE MARSHALL
Attorney General
TIM GRIFFIN
Attorney General
EDMUND G. LACOUR JR.
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, Alabama 36130-0152
NICHOLAS J. BRONNI
Solicitor General
Counsel for the State of Alabama
DYLAN JACOBS
Deputy Solicitor General
OFFICE OF THE ARKANSAS ATTORNEY
GENERAL
323 Center Street, Suite 200
Little Rock, AR 72201
Counsel for the State of Arkansas
TREG TAYLOR
Attorney General
ASHLEY MOODY
Attorney General
GARRISON TODD
Assistant Attorney General
ALASKA DEPARTMENT OF LAW
1031 W. 4th Ave., Ste. 200
Anchorage, AK 99501
HENRY C. WHITAKER
Solicitor General
Counsel for State of Alaska
JAMES H. PERCIVAL
Chief of Staff
OFFICE OF THE ATTORNEY GENERAL OF
FLORIDA
The Capitol, Pl-01
Tallahassee, Florida 32399-1050
Counsel for the State of Florida
CHRISTOPHER M. CARR
Attorney General
BRENNA BIRD
Attorney General
STEPHEN J. PETRANY
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
GEORGIA
40 Capitol Square, SW
Atlanta, GA 30334
ERIC H. WESSAN
Solicitor General
OFFICE OF THE ATTORNEY GENERAL
OF IOWA
1305 E. Walnut Street
Des Moines, IA 50319
Counsel for the State of Georgia
Counsel for the State of Iowa
RAÚL R. LABRADOR
Attorney General
THEODORE E. ROKITA
Attorney General
JOSHUA N. TURNER
Chief of Constitutional Litigation and
Policy
JAMES A. BARTA
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
INDIANA
302 W. WASHINGTON ST.
Indianapolis, IN 46204
ALAN M. HURST
Solicitor General
OFFICE OF THE IDAHO ATTORNEY
GENERAL
P.O. Box 83720
Boise, Idaho 83720
Counsel for State of Indiana
Counsel for the State of Idaho
RUSSELL COLEMAN
Attorney General
KRIS KOBACH
Attorney General
MATTHEW F. KUHN
Solicitor General
OFFICE OF THE KENTUCKY ATTORNEY
GENERAL
700 Capital Avenue, Suite 118
Frankfort, KY 40601
ANTHONY J. POWELL
Solicitor General
KANSAS ATTORNEY GENERAL’S OFFICE
120 SW 10th Avenue, 2nd Floor
Topeka, Kansas 66612-1597
Counsel for the Commonwealth of
Kentucky
Counsel for the State of Kansas
LIZ MURRILL
Attorney General
ANDREW BAILEY
Attorney General
J. BENJAMIN AGUIÑAGA
Solicitor General
LOUISIANA DEPARTMENT OF JUSTICE
1885 N. Third Street
Baton Rouge, LA 70804
JOSHUA M. DIVINE
Solicitor General
Counsel for the State of Louisiana
SAMUEL C. FREEDLUND
Deputy Solicitor General
MISSOURI ATTORNEY GENERAL’S OFFICE
207 West High St.
Jefferson City, MO 65101
Counsel for State of Missouri
LYNN FITCH
Attorney General
AUSTIN KNUDSEN
Attorney General
JUSTIN L. MATHENY
Deputy Solicitor General
OFFICE OF THE MISSISSIPPI ATTORNEY
GENERAL
P.O. Box 220
Jackson, MS 39205-0220
CHRISTIAN B. CORRIGAN
Solicitor General
MONTANA DEPARTMENT OF JUSTICE
215 North Sanders P.O. Box 201401
Helena, MT 59620-1401
Counsel for State of Mississippi
Counsel for the State of Montana
DREW H. WRIGLEY
Attorney General
MICHAEL T. HILGERS
Attorney General
PHILIP AXT
Solicitor General
OFFICE OF ATTORNEY GENERAL OF
NORTH DAKOTA
600 E. Boulevard Ave., Dept. 125
Bismarck, ND 58505
ERIC J. HAMILTON
Solicitor General
NEBRASKA DEPARTMENT OF JUSTICE
2115 State Capitol
Lincoln, Nebraska 68509
Counsel for State of North Dakota
Counsel for the State of Nebraska
DAVID YOST
Attorney General
ALAN WILSON
Attorney General
T. ELLIOT GAISER
Solicitor General
ROBERT D. COOK
Solicitor General
MATHURA J. SRIDHARAN
Deputy Solicitor General
OHIO ATTORNEY GENERAL’S OFFICE
30 E. Broad Street
Columbus, OH 43215
J. EMORY SMITH, JR.
Deputy Solicitor General
Counsel for the State of Ohio
JOSEPH D. SPATE
Assistant Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA
1000 Assembly Street
Columbia, SC 29201
Counsel for the State of South Carolina
JASON MIYARES
Attorney General
SEAN D. REYES
Attorney General
KEVIN M. GALLAGHER
Principal Deputy Solicitor General
VIRGINIA ATTORNEY GENERAL’S OFFICE
202 North 9th Street
Richmond, VA 23219
STANFORD E. PURSER
Solicitor General
UTAH ATTORNEY GENERAL’S OFFICE
160 East 300 South, 5th Floor
Salt Lake City, UT 84114
Counsel for the Commonwealth of
Virginia
Counsel for the State of Utah
BRIDGET HILL
Attorney General
PATRICK MORRISEY
Attorney General
D. DAVID DEWALD
Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL OF
WYOMING
109 State Capitol
Cheyenne, WY 82002
MICHAEL R. WILLIAMS
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
WEST VIRGINIA
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25301
Counsel for the State of Wyoming
Counsel for the State of West Virginia
WARREN PETERSEN
President Of The Arizona
State Senate
BEN TOMA
Speaker Of The Arizona
House Of Representatives
By Counsel:
BRUNN (BEAU) W. ROYSDEN III
FUSION LAW, PLLC
7600 N. 15th St., Suite 150
Phoenix, Arizona 85020
By Counsel:
BRUNN (BEAU) W. ROYSDEN III
FUSION LAW, PLLC
7600 N. 15th St., Suite 150
Phoenix, Arizona 85020
Counsel for President of the
Arizona State Senate Warren
Petersen
Counsel for Speaker of the Arizona
House of Representatives Ben Toma
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1
ARGUMENT .................................................................................................................. 3
I.
State-Applicants Have Shown That This Court Would Likely Review And
Reverse Any Decision Of The D.C. Circuit Upholding The Section 111(d)
Component Of The Rule ........................................................................................ 3
A.
The Rule’s Imposition Of “Presumptive Standards” That States Must
Rebut Before Exercising Their Authority To Establish Their Own
Standards Of Performance Violates Section 111(d) ..................................... 3
B.
The Two-Year Deadline For States To Submit Their Section 111(d)
Plans Violates The APA ................................................................................ 8
II. State-Applicants Will Suffer Irreparable Harm If This Court Does Not
Grant A Stay ....................................................................................................... 12
III. Leaving The Rule In Place Is Contrary To The Public Interest........................ 16
CONCLUSION............................................................................................................. 20
TABLE OF AUTHORITIES
Cases
Am. Lung Ass’n v. EPA,
985 F.3d 914 (D.C. Cir. 2021) ........................................................................... 11
Califano v. Yamasaki,
442 U.S. 682 (1979) ........................................................................................... 19
Louisiana v. Am. Rivers,
142 S. Ct. 1347 (2022) ....................................................................................... 19
Ohio v. EPA,
144 S. Ct. 2040 (2024) ................................................................................... 9, 10
Sierra Club v. Morton,
405 U.S. 727 (1972) ........................................................................................... 16
St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993) ............................................................................................. 5
West Virginia v. EPA,
597 U.S. 697 (2022) ....................................................................................... 3, 11
Statutes And Rules
42 U.S.C. § 7411 ....................................................................................... 3, 4, 5, 6, 9, 13
42 U.S.C. § 7436 ........................................................................................................... 17
Sup. Ct. R. 10 ................................................................................................................. 3
Regulations
40 C.F.R. § 60.24a .......................................................................................................... 6
40 C.F.R. § 60.27a ........................................................................................................ 12
74 Fed. Reg. 66,496 (Dec. 15, 2009) ............................................................................ 17
81 Fed. Reg. 35,824 (June 3, 2016) ............................................................................. 10
86 Fed. Reg. 63,110 (Nov. 15, 2021) .............................................................................. 7
88 Fed. Reg. 80,480 (Nov. 17, 2023) ............................................................................ 12
Other Authorities
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading
Judges (2008) ...................................................................................................... 8
Exec. Off. of the President, The President’s Climate Action Plan (June 2013) ......... 17
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INTRODUCTION
As State-Applicants explained in their Stay Application, EPA designed the
Rule at issue here to force States to adopt EPA’s “presumptive standards” for
regulating methane emissions from existing oil and gas facilities, thus depriving
States of their statutory right to craft their own standards of performance for these
facilities.
EPA accomplished this by first illegally promulgating “presumptive
standards of performance,” thus forcing States to rebut EPA’s standards before being
able to adopt their own standards, and then by giving States what the agency knew
would be an entirely insufficient amount of time to develop their own standards for
these facilities. Absent a stay, EPA’s gambit to force the States to submit to EPA’s
“presumptive standards” will impose irreparable harm upon the States. As StateApplicants showed through detailed declarations, absent a stay EPA’s Rule will
require States to surrender their sovereign right to adopt their own standards of
performance, while spending unrecoverable sovereign resources to design Rulecompliant state plans that States will scrap once the courts vacate the Rule at the
end of this litigation.
EPA responds largely with attempted misdirection. EPA repeats over and
again that the Rule’s “presumptive standards” do not completely “prevent” States
from taking a different approach, EPA Resp.18, are not “binding,” EPA Resp.22, and
do not “predetermine” the outcome of a state plan submission, EPA Resp.23. While
it would, of course, be illegal for EPA to have adopted “binding” standards for existing
facilities under Section 111(d)—as the agency can do for new facilities under Section
111(b)—it is also illegal for the agency to do what it did here: give presumptive weight
to its own standards, while leaving open the theoretical possibility that some State
could rebut that presumption. EPA also argues that States can submit standards
within EPA’s truncated two-year schedule because the Rule does not require States
to “devise bespoke methane regulations for each covered facility in a State” or force
States to inventory all regulated facilities. EPA Resp.25–26. But EPA disputes
neither that Section 111(d) gives States the right to adopt bespoke standards, which
requires an inventory, nor that two years is not enough time for many States to
complete that type of work—especially States like Oklahoma, which will be
regulating hundreds of thousands of existing facilities for the first time.
EPA’s responses to State-Applicants’ showing that a stay is necessary to
prevent irreparable harm and advance the public interest fare no better. EPA urges
that States can simply decline to submit a state plan and subject themselves to a
federal plan. But the federal plan would consist of the very same “presumptive
standards” that State-Applicants want to avoid. As to the consideration of the public
interest, EPA does not dispute that its “presumptive standards” would raise energy
rates on ordinary Americans, but it claims that urgency in combatting climate change
outweighs these harms.
Yet, EPA showed no such urgency when delaying the
issuance of any methane rule for existing oil and gas facilities for more than a decade.
EPA cannot now be heard to argue that States must surrender their sovereign,
statutory rights because the agency has decided it wants to now act with haste.
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ARGUMENT
I.
State-Applicants Have Shown That This Court Would Likely Review
And Reverse Any Decision Of The D.C. Circuit Upholding The Section
111(d) Component Of The Rule
A.
The Rule’s Imposition Of “Presumptive Standards” That States
Must Rebut Before Exercising Their Authority To Establish
Their Own Standards Of Performance Violates Section 111(d)
1. As State-Applicants explained, the Rule violates Section 111(d) of the Clean
Air Act by imposing “presumptive standards of performance” that States must rebut
to avoid EPA imposing a federal plan on the oil and gas facilities in their States, and
this Court would likely grant review of a decision from the D.C. Circuit resolving that
“important question of federal law” against State-Applicants. States Appl.15–20
(quoting Sup. Ct. R. 10(c)). Section 111(d) authorizes EPA only to determine the best
system of emission reduction and the degree of emission limitation achievable for
certain pollutants. 42 U.S.C. § 7411(a), (d); States Appl.15–16. Section 111(d) then
grants States the power to “set the actual rules governing existing” sources to meet
the emissions guidelines set by EPA for the pollutant at issue, West Virginia v. EPA,
597 U.S. 697, 710 (2022), including by achieving less reduction when “tak[ing] into
consideration, among other factors, the remaining useful life of the existing source to
which such standard applies,” 42 U.S.C. § 7411(d)(1); States Appl.15–16.
The Rule here subverts this carefully crafted statutory structure and so is
unlawful. The Rule arrogates to EPA a key portion of the States’ Section 111(d)
authority by purporting to impose “presumptive standards of performance” upon the
States’ state plan submission, such that States must rebut those “presumptive
standards” before they may establish their own standards. States Appl.16–17 (citing
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App.10a–11a; App.14a–16a; App.70a; App.176a).
That is how a “presumption”
operates under blackletter law: establishing some predicate fact that produces a
conclusion in the absence of a contrary showing by the party against whom the
presumption operates.
States Appl.16–17.
And that is how the “presumptive
standards” operate here, with EPA explaining in the Rule that “components of a state
plan that differ from any presumptively approvable aspects of the [emissions
guidelines] . . . will be thoroughly reviewed by the EPA,” App.187a (emphasis added);
States Appl.19, while making clear that States must satisfy certain heightened
requirements before they may exercise their statutory right to require smaller
emission reductions based upon each facility’s “remaining useful life,” 42 U.S.C.
§ 7411(d)(1); see States Appl.17–19.
2. EPA’s Response argues that the Rule’s “‘presumptive standards . . . do not
prevent States from adopting a different approach,” EPA Resp.18 (emphasis added),
because those standards are not “binding,” EPA Resp.22 (emphasis added), such that
EPA did “not predetermine the outcome” of its action on any particular state plan,
EPA Resp.23 (emphasis added). This is unresponsive to State-Applicants’ argument
that the “presumptive standards” operate just as their label indicates: When a State
wants a state plan that is different than EPA’s presumptively approvable standards,
States must make a special showing beyond the one that would be required if EPA
had stayed in its statutorily authorized lane by identifying “the best system of
emission reduction” and the “degree of emission limitation achievable through
application of” that system, 42 U.S.C. § 7411(a)(1), and then approving any state plan
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that achieves either that level of emission reductions or a lesser amount if the State
concludes that such lesser amount is justified after considering a facility’s “remaining
useful life,” id. § 7411(d)(1).
Nowhere in its Response does EPA engage with State-Applicants’ argument
that, by adopting “presumptive standards,” the Rule places upon the States “the
burden of producing an explanation to rebut” these standards, or else EPA will reach
the “required conclusion in the absence of [such] an explanation” that the State’s
Section 111(d) plan must include these standards.
Compare States Appl.17–18
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)), with EPA Resp.18–
24. Rather, EPA just asserts generally that “its understanding and intent [is] that
its review of state methane-emission plans would be conducted under the generally
applicable statutory and regulatory provisions that govern the state-plan-submission
process.” EPA Resp.2. But the Rule explains how EPA would apply these “generally
applicable statutory and regulatory provisions,” EPA Resp.2, to review States’ Section
111(d) plan submissions, see States Appl.11–12, 16–17. And the Rule is clear on that
point: A State must either adopt EPA’s “presumptive standards” or rebut those
“presumptive standards” to justify adopting its own standards.
See States
Appl.17–18.
EPA’s Response has no serious answer to State-Applicants’ argument that the
Rule’s “presumptive standards” undermine the States’ statutory authority to adopt
standards of performance that “take into consideration, among other factors, the
remaining useful life of the existing source to which such standard applies.” 42 U.S.C.
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§ 7411(d)(1). EPA claims that the Rule does not limit the States’ statutory discretion
to consider a “facility’s remaining useful life” or “other factors” when crafting their
Section 111(d) plans, but its own words give the game away. See EPA Resp.22–23.
Under the Rule, States may only exercise their statutory rights to consider the
remaining useful life of a facility and choose to apply a less burdensome emissions
limitation on that facility—thereby departing from the Rule’s “presumptive
standards”—after satisfying specific, heightened requirements that the Rule lays out.
See App.183a–86a (incorporating 40 C.F.R. § 60.24a (subpart Ba)). This is contrary
to the plain text of Section 111(d), which expressly empowers the States to “take into
consideration”—throughout the entire development of their Section 111(d) plan, with
no limitation—“the remaining useful life of the existing source to which such
standard applies” and “other factors.” 42 U.S.C. § 7411(d)(1).
EPA’s efforts to whitewash its multiple statements that the agency will give
heightened review to state efforts to reject the agency’s “presumptive standards” are,
with respect, unserious.
EPA asserts that the preamble’s statement that
“components of a state plan that differ from any presumptively approvable aspects of
the [emissions guidelines] . . . will be thoroughly reviewed by the EPA,” App.187a
(emphasis added), “simply refers to EPA’s use of notice-and-comment rulemaking to
review state-plan submittals,” EPA Resp.22. No one believes that is what EPA means
here. The entire state plan must proceed through notice-and-comment rulemaking,
not just “components” that depart from EPA’s “presumptively approvable” standards.
See App.10a. What EPA is clearly saying with the phrase “thoroughly review” is just
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what it said elsewhere in the Federal Register: “[I]t would likely be difficult for States
to demonstrate that the “presumptive standards” are not reasonable for the vast
majority of designated facilities,” 86 Fed. Reg. 63,110, 63,251 (Nov. 15, 2021), so
States need to think twice before departing from the “presumptive standards” given
EPA’s threatened “thorough[ ] review[ ],” App.187a. The Rule also states that it
would be “extremely unlikely” that States could depart from certain “presumptive
standards” based on cost considerations, further showing that the Rule requires
States to justify any departure from the “presumptive standards” before adopting
their own standards. States Appl.19 (quoting App.185a (emphasis added)).
The Environmental and Health Respondents—but not EPA itself—attempt to
address State-Applicants’ point that the force of the “presumptive standards” is also
demonstrated by the Rule’s refusal to offer a “total program evaluation” for those
States that already regulate methane in satisfaction of the Rule’s requirements. See
States Appl.11–12; Env’l & Health Resp.7.
The Environmental and Health
Respondents’ only response is that a “total program evaluation” option would be
“extremely complicated,” given that States may have “programs containing a mix of
performance standards . . . and equipment and work practice standards.” Env’l &
Health Resp.7–8. However, these parties’ subjective view of the complexity of this
approach cannot justify limiting the States’ authority to set their own standards.
Finally, EPA claims that State-Applicants’ merits arguments are “speculative
and unripe” because they depend upon EPA “appl[ying] an unduly stringent standard
in determining whether [their] state plans should be approved” under the Rule. EPA
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Resp.23–24. But the Rule infringes States’ statutory and sovereign authority now by
imposing “presumptive standards,” thus changing the way that the States will design
their state plans. States Appl.16–20. Because the Rule requires States to rebut those
“presumptive standards” to set their own standards, see States Appl.16–20, these
“presumptive standards” will inevitably dictate how the States develop their Section
111(d) plans for EPA’s review, see, e.g., App.10a. To take an analogy, the standards
of review that an appellate court will apply to a given appellate issue dictate the
content and form of the parties’ submissions on appeal. See Antonin Scalia & Bryan
A. Garner, Making Your Case: The Art of Persuading Judges 11–13 (2008) (“Pay
careful attention to the applicable standard of decision.”). So too here: because the
Rule requires the States to rebut the “presumptive standards” if they wish to adopt
their own standards of performance, States will have to shape their Section 111(d)
plan-making efforts now around EPA’s illegal “presumptive standards.”
B.
The Two-Year Deadline For States To Submit Their Section
111(d) Plans Violates The APA
1. Many States commented during the rulemaking process that they needed at
least three years to prepare a Section 111(d) plan under the Rule, given the number
of previously unregulated sources involved. States Appl.21–22, 23–24. EPA did not
meaningfully respond to this critical concern in the Rule, instead addressing only a
different timing issue, related to completing state administrative processes and the
like. States Appl.22–23. EPA’s “fail[ure] to supply a satisfactory explanation” of how
it reasonably dealt with this problem is the same APA violation that EPA made with
the rule at issue in this Court’s recent decision in Ohio v. EPA, 144 S. Ct. 2040, 2053–
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54 (2024) (citation omitted).
States Appl.24–25.
And the error is particularly
significant here because the agency’s truncated timeframe, combined with the fact
that the Rule requires States to regulate hundreds of thousands of new facilities for
the first time, ensures that States will need to adopt EPA’s “presumptive standards.”
States Appl.23–24.
2. EPA again attempts misdirection, focusing on the fact that the Rule does not
require States to conduct an “inventory” of the hundreds of thousands of oil and gas
facilities that the Rule will cover and underscoring that “a state plan need not and
would not reasonably devise bespoke methane regulations for each covered facility in
a state.” EPA Resp.25–26 (emphasis added). But States have the statutory right
under Section 111(d) to set “bespoke” standards of performance, including to modify
appropriately the emissions-reduction amount set by EPA as “to any particular
source,” after “tak[ing] into consideration, among other factors, the remaining useful
life of the existing source,” 42 U.S.C. § 7411(d) (emphasis added). EPA does not
dispute that the two-year deadline that the Rule provides is not enough time for many
States to gather such an “inventory”—let alone to design a state plan tailored to the
States’ diverse oil and gas facilities—an omission that functions as a concession that
the Rule does not give States enough time to exercise the full scope of their Section
111(d) statutory authority. See generally EPA Resp.24–29.1 So, while the Rule does
EPA asserts that the Rule’s emission guidelines for existing sources cover only
methane, and not also volatile organic compounds (“VOC”)—a fact that, EPA claims, has
“obvious bearing on the achievability of the two-year deadline.” EPA Resp.24. But because
1
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not require every State to conduct an inventory of the numerous newly regulated oil
and gas facilities, States failing to carry out this task cannot fully and freely exercise
their statutory obligations under Section 111(d), including by considering how any
standards impact each existing facility’s remaining useful life. States Appl.21–22.
EPA prefers that the States just acquiesce to its one-size fits all approach, but Section
111(d) affords the States the right to make a contrary choice.2
EPA next argues that the Rule’s preamble discussed “in detail a range of
additional factors” that may make the development of state plans under Section
111(d) time-consuming. EPA Resp.28 (citing App.191a.). The preamble does not
“grapple with [State-Applicants’] concern.” Ohio, 144 S. Ct. at 2056 (citation omitted).
Rather, it only generally references the time-consuming nature of “the requisite
analysis,” App.191a, without addressing the specific problem that State-Applicants
present here: The Rule requires many States to regulate under Section 111(d), for the
first time, hundreds of thousands of diverse oil and gas facilities, and two years is an
covered facilities emit methane and VOCs in the same way, these facilities would adopt the
same measures to “simultaneously reduce both methane and VOC emissions.” See 81 Fed.
Reg. 35,824, 35,841 (June 3, 2016). Thus, that this aspect of the Rule covers only methane
has no “bearing on the achievability of the two-year deadline.” Contra EPA Resp.24.
While the State Respondent-Intervenors assert that “some of the state officials
charged with submitting applicants’ own plans agreed during the comment period that a twoyear deadline would be adequate,” see State Resp.19 & n.9, they do not (and cannot) point to
anything that actually supports that assertion. The only comment submitted to EPA during
the rulemaking that State Respondent-Intervenors cite stated that 24 months might be
adequate for States to adopt Section 111(d) plans that followed federal standards—such as
the Rule’s “presumptive standards” here—but expressly emphasized that this would not be
sufficient for States to develop their own standards of performance under Section 111(d). See
State Resp.19 & n9; contra 24 EPA-HQ-OAR-2021-0317-2330, Comment by Kentucky
Division for Air Quality, at 2, EPA-HQ-OAR-2021-0317-2330 (Feb. 13, 2023). That is the
same point that State-Applicants make here.
2
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insufficient amount of time for States to exercise their independent Section 111(d)
authority. States Appl.22–23. Indeed, the Rule’s preamble cuts against EPA. While
the preamble admits that States need more time to exercise fully their Section 111(d)
rights, it then sacrifices that state-sovereignty concern to regulatory expediency.
App.191a. The preamble “recognizes that states need time to follow their statespecific processes and laws”—consistent with the States’ authority under Section
111(d)—but then concludes that “[e]xtending the state plan submittal deadline
beyond 24 months to account for any and all unique state procedures would
inappropriately delay reductions in emissions.” App.191a. This strongly supports
State-Applicants’ argument that EPA did not give States sufficient time to perform
their statutory functions as it sought to advance its own policy objectives, States
Appl.1–2, 8, 22–25, after having delayed in issuing the Rule for a decade,
State Appl.12–13.
EPA’s invocation of American Lung Association v. EPA, 985 F.3d 914 (D.C. Cir.
2021)—the decision that this Court reversed in West Virginia, 597 U.S. 697—to argue
that “D.C. Circuit precedent” confirms that EPA has a “duty to ensure expeditious
implementation and safeguard the public,” gets the agency nowhere. EPA Resp.28.
To the extent that the cited portion of American Lung remains good law, it establishes
only that expeditious implementation is “an important aspect of the problem” that
EPA must consider and address. See 985 F.3d at 994–95. This policy aim cannot
override the States’ statutory rights, as expressed in Section 111(d).
Virginia, 597 U.S. at 723; id. at 736 (Gorsuch, J., concurring).
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See West
Finally, EPA claims that if a State “miss[es] the state-plan submission
deadline,” the Rule “neither produces any immediate regulatory effect nor forecloses
the State from adopting its own standards” because the State could simply submit a
plan later. EPA Resp.28–29 (citing 40 C.F.R. § 60.27a(c)(1)); see also EPA Resp.6
(citing 88 Fed. Reg. 80,480, 80,495 (Nov. 17, 2023)). But EPA’s own regulations
confirm that failing to submit a plan “within the time prescribed” requires EPA to
promulgate a federal plan, 40 C.F.R. § 60.27a(c)(1), and nothing in those regulations
requires EPA to act on a later-submitted state plan. Instead, “the act of a state
submitting a plan alone does not abrogate the EPA’s authority or obligatory timeline
to promulgate a Federal plan,” and “EPA is not obligated to act on a late state plan
prior to promulgating a Federal plan.” 88 Fed. Reg. at 80,495. Further, once EPA
has imposed a federal plan upon a State’s existing facilities, the sources within that
State would then need to make irrevocable changes to their equipment and operations
to comply with the federal plan, meaning that the damage of EPA infringing upon
the States’ sovereign rights under Section 111(d) would be essentially irreversible,
even if a State were to later submit a tardy plan that EPA eventually approved.
II.
State-Applicants Will Suffer Irreparable Harm If This Court Does Not
Grant A Stay
A. State-Applicants have also shown that they will suffer irreparable harm
absent a stay. States Appl.25–30. The Rule’s “presumptive standards” and two-year
deadline for Section 111(d) plans impose significant, irreparable harm to StateApplicants’ sovereign interests, forcing them to expend unrecoverable resources to
submit Section 111(d) plans that they otherwise would not have developed. States
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Appl.26–27. Faced with an unrealistic two-year deadline, State-Applicants must
either adopt EPA’s “presumptive standards” wholesale or quickly spend significant,
unrecoverable resources to develop modified versions of those “presumptive
standards.” States Appl.27–28; see States Appl.28–30. This undermines the States’
statutory right to adopt their own standards, based upon their knowledge of the
existing sources within their borders. States Appl.27–29. Further, States’ significant
expenditure of resources will be wasted once State-Applicants prevail in this
litigation, as EPA will have to allow States to adopt new Section 111(d) plans on a
realistic schedule, while allowing States to exercise their rights to adopt their own
standards of performance for the sources under the Rule’s purview. States Appl.27.
B. EPA’s various responses miss the mark.
First, EPA argues that States conducting the “state planning process” under
Section 111(d) to comply with the Rule cannot itself serve as a “harm to be avoided.”
EPA Resp.49. State-Applicants do not claim that any state-planning process harms
them, but rather that the Rule’s mandate to use the “presumptive standards” within
an unrealistic, two-year deadline harms the States by preventing them from
exercising their statutory right to develop their own “standards of performance for
any existing source for any air pollutant.” 42 U.S.C. § 7411(d)(1); States Appl.26.
While EPA disputes that the Rule requires States to adopt the “presumptive
standards” and deters the States from developing their own Section 111(d) plans,
EPA Resp.49–50, that is just a repeat of the agency’s erroneous arguments on the
merits, see supra Part I.
- 13 -
Second, EPA claims that a State “may simply refrain” from drafting a Section
111(d) plan to comply with the Rule or submit an untimely plan, so as to avoid
suffering any harm now. EPA Resp.49–50. This would not avoid State-Applicants’
harm, but asks States to surrender to federal regulation and the very “presumptive
standards” that they seek to avoid, as explained above. See supra p.12.
Third, EPA claims that State-Applicants “misunderstand[ ]” “what is actually
required to develop a state plan,” EPA Resp.50, asserting that State-Applicants’
alleged harms arise largely from implementing a plan after EPA has approved it,
rather than developing a plan to submit for EPA’s review. This too is wrong. As
State-Applicants explained above—and as EPA itself concedes, EPA Resp.25—the
Rule requires States to regulate hundreds of thousands of oil and gas facilities for the
first time, and to do so in the face of EPA’s “presumptive standards” and within a
truncated two-year deadline, supra pp.9–10.
State-Applicants have shown that
developing such plans will require substantial state resources to complete. States
Appl.28–30.
For example, developing a state plan requires going through state
rulemaking processes. States Appl.28–29 (citing App.441a–42a; App.451a–52a;
App.458a; App.463a; App.474a; App.482a; App.534a; App.544a–45a; App.563a–64a;
App.575a–76a; App.587a–88a).
Devising a state plan will also often involve an
inventory of all designated facilities (and, indeed, must include such an inventory to
develop and justify an alternative to the “presumptive standards”); of all attendant
performance standards; and of all compliance schedules (which must be made public
for a reasonable period of time) to ensure proper stakeholder engagement and public
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comment.
See App.563a–64a; see also App.423a–25a; App.458a.
And State-
Applicants showed that they would need to hire and train hundreds of in-demand
workers to assist with developing a plan and then implementing it. States Appl.29–
30 (citing App. 472a; App.532a–33a; App.572a). Moreover, EPA cannot fault StateApplicants for having difficulty implementing Section 111(d) programs in line with
the Rule because EPA has failed to respond to States’ requests for implementation
guidance. App.618a (noting EPA’s failure to respond to Virginia’s inquiries).
Finally, EPA claims that State-Applicants will not suffer irreparable harm
because, even if they expend significant resources developing Section 111(d) plans
within the Rule’s two-year deadline and subsequently prevail in their challenge to
that deadline, “none” of State-Applicants’ “plan-development efforts will be wasted”
because they may apply these “efforts to submit compliant plans by whatever
alternative deadline is ultimately imposed.”
EPA Resp.50–51.
But the State-
Applicants’ declarations—which declarations neither EPA nor any of its supporting
parties has contested—explain that State-Applicants will not use those Section 111(d)
plans if they prevail here. Such plans, hurriedly developed under the two-year
timeline and within the context of EPA’s “presumptive standards,” would not be
sufficiently “tailored to the unique needs” of each State, App.614a, or “wellcalibrated” to “state rules that take [remaining useful life] into consideration,”
App.607a; see also App.591a; App.598a–99a; App.604a–07a; App.611a–13a;
App.618a–19a. So, State-Applicants have shown that their plan-development efforts
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will be wasted and that they will re-do this resource-intensive work differently after
they prevail on the merits.
III.
Leaving The Rule In Place Is Contrary To The Public Interest
A. Considerations of the public interest also strongly favor a stay.
States Appl.30–33. To begin, the unlawful Section 111(d) component of the Rule
harms the public’s interest in the Clean Air Act’s cooperative-federalism regime—
including as embodied in Section 111(d)—by allowing States only enough time to
accept EPA’s “presumptive standards” or some modified version of such standards,
thereby limiting the States’ authority to adopt their own standards of performance
under Section 111(d) that account for their own unique state concerns.
States
Appl.31. Further, the Rule’s burdensome “presumptive standards” also harm the
public by imposing costs on the oil and gas industries that, as EPA concedes, will
ultimately be borne by consumers. States Appl.31–32. EPA, for its part, will not
suffer cognizable harm from a stay during the pendency of this case. EPA shares the
public’s interest in requiring it to “comply with its statutory mandate,” Sierra Club
v. Morton, 405 U.S. 727, 737 (1972), and EPA has delayed in regulating methane for
a decade, demonstrating that timing is not critical to achieving its ends,
States Appl.33.
B. EPA asserts that “[a]ny [ ] postponement” of the emission guidelines “would
cause significant harm to the government and the public,” because “[c]limate change
is the Nation’s most pressing environmental challenge” and “human-caused
emissions of methane . . . are responsible for ‘one-third of the [global] warming’ that
is attributable to greenhouse gases.” EPA Resp.51 (citation omitted; brackets in
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original). EPA’s sudden urgency comes after years of delay. EPA determined that
methane and five other gases contribute to climate change in 2009, 74 Fed. Reg.
66,496, 66,497 (Dec. 15, 2009), and by 2013, the Obama Administration called on EPA
to “[c]urb[ ] emissions of methane” by “work[ing] collaboratively with state
governments,” Exec. Off. of the President, The President’s Climate Action Plan 10–11
(June 2013).3
Now, in 2024, EPA claims that the Rule must go into effect
immediately, lest a parade of horribles occur. See EPA Resp.51 (“sea level rise,”
“increased ‘storm surge and flooding,’” more frequent “‘drought’ and ‘extreme rainfall
events,’” “more intense and larger wildfires”). And, in any event, nowhere does EPA
show how the Rule itself will prevent these concerns during the pendency of StateApplicants’ challenges to the Rule here. EPA Resp.51–52.
EPA’s assertion that “[a] stay could also harm oil-and-gas-industry
participants” by “delay[ing] the availability of exemptions from methane charges
under 42 U.S.C. 7436,” EPA Resp.52, fails to weigh these charges against the
substantial costs that the Rule would impose on the oil-and-gas industry. Those
“charge[s]”—fines imposed on facilities with “methane emissions that exceed a[ ] . . .
[statutorily-defined] threshold,” 42 U.S.C. § 7436(c)—can only be waived after EPA
determines
that
the
offending
facility
achieves
the
emissions
reductions
contemplated by 42 U.S.C. § 7436(f)—so any fee waiver is speculative. Further, as
Industry-Applicants point out, they “have invested, planned, and developed their
3 Available at https://obamawhitehouse.archives.gov/sites/default/files/image/
president27sclimateactionplan.pdf (all websites last visited Sept. 24, 2024).
- 17 -
operations based on the longstanding application of State regulations” “[f]or decades.”
Appl. For Stay at 33–34, Cont’l Res., Inc. v. EPA, No.24A215 (Aug. 26, 2024). But the
Rule’s “erasing [of] States from the picture” caused them to “begin the time
consuming and costly process of adjusting their existing operations to comply with
the Final Rule’s presumptive standards,” which “substantially impairs Industry
Applicants’ funding and . . . is already affecting [their] day-to-day operations.” Id. at
33. These costs will lead to higher prices for consumers (as EPA admits) and, when
coupled with the anticipated baseline price increase stemming from the Rule, will
significantly impair access to essential utilities for Americans grappling with
financial hardship. Contra Env’t & Health Resp’ts Resp.37. And EPA’s concern over
assessing fees against oil and gas facilities should be weighed against the Rule’s
immense costs to oil and gas production, which is why no oil or gas facility is
supporting EPA here. See EPA, Response to Public Comments on the November 2021
Proposed Rule and the December 2022 Supplemental Proposed Rule, at I-20-63,
No.EPA-HQ-OAR-2021-0317-4009 (Nov. 2023); App.604a–06a (discussing “economic
and social damage” caused by the Rule); App.591a; App.597a–99a.
EPA and its supporting parties briefly make a series of other equitable
arguments about the timing of State-Applicants’ application, all of which fail. Each
wrongly claims that State-Applicants have sought “emergency relief.”
See EPA
Resp.3, 18, 29, 47–49; State Resp’t-Intervenor’s Resp.10; Env’t & Health Resp’ts
Resp.10, 31. But State-Applicants are not seeking stay relief on an emergency basis,
but rather standard stay relief against a Rule that imposes irreparable harms upon
- 18 -
them. See States Appl.14. In any event, the timing here is unremarkable. Compare
Order, In re: Clean Water Act Rulemaking, Nos.21-16958, 21-16960, 21-16961 (9th
Cir. Feb. 24, 2022) (denying applicants’ Motion For Stay Pending Appeal), with Appl.
For Stay, Louisiana v. Am. Rivers, No.21A539 (filing stay application on March 21,
2022); see Louisiana v. Am. Rivers, 142 S. Ct. 1347 (2022) (granting the stay). Some
of EPA’s supporters also bizarrely point to the allegedly “protracted briefing schedule”
in the D.C. Circuit below, Env’t & Health Resp’ts Resp.31, without revealing to this
Court that the parties in the D.C. Circuit agreed to that schedule after mutual
negotiation, including to accommodate the schedules that States, private parties, and
the Department of Justice were juggling (including as to multiple other stay
applications before this Court).
Finally, EPA argues that “this Court should limit any stay relief to the specific
portions of the Rule that applicants have contested.”
EPA Resp.52–53.
State-
Applicants have already tailored their requested stay to the Section 111(d) component
of the Rule, see, e.g., States Appl.1, which is the specific portion of the Rule harming
State-Applicants here. Thus, State-Applicants’ requested relief would “be no more
burdensome to the defendant than necessary to provide complete relief to the
plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
- 19 -
CONCLUSION
This Court should stay the Section 111(d) component of the Rule pending
resolution of State-Applicants’ petition for review.
Respectfully submitted,
GENTNER DRUMMOND
Attorney General
GARRY M. GASKINS, II
Solicitor General
JENNIFER L. LEWIS
Deputy Attorney General
OFFICE OF THE ATTORNEY
GENERAL OF OKLAHOMA
313 NE Twenty-First St.
Oklahoma City, OK 73105
CARROLL WADE MCGUFFEY III
TROUTMAN PEPPER
HAMILTON SANDERS LLP
600 Peachtree St. N.E., Suite 3000
Atlanta, GA 30308
September 2024
/s/ Misha Tseytlin
MISHA TSEYTLIN
Counsel of Record
KEVIN M. LEROY
KAITLIN L. O’DONNELL
EMILY A. O’BRIEN
DYLAN DEWITT
TROUTMAN PEPPER
HAMILTON SANDERS LLP
227 W. Monroe, Suite 3900
Chicago, Illinois 60606
(608) 999-1240
misha.tseytlin@troutman.com
JEFF P. JOHNSON
CARLY ROTHMAN SIDITSKY
TROUTMAN PEPPER
HAMILTON SANDERS LLP
1001 Haxall Point, Suite 1500
Richmond, VA 23219
Counsel for the State of Oklahoma
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STEVE MARSHALL
Attorney General
TIM GRIFFIN
Attorney General
EDMUND G. LACOUR JR.
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, Alabama 36130-0152
NICHOLAS J. BRONNI
Solicitor General
Counsel for the State of Alabama
DYLAN JACOBS
Deputy Solicitor General
OFFICE OF THE ARKANSAS ATTORNEY
GENERAL
323 Center Street, Suite 200
Little Rock, AR 72201
Counsel for the State of Arkansas
TREG TAYLOR
Attorney General
ASHLEY MOODY
Attorney General
GARRISON TODD
Assistant Attorney General
ALASKA DEPARTMENT OF LAW
1031 W. 4th Ave., Ste. 200
Anchorage, AK 99501
HENRY C. WHITAKER
Solicitor General
Counsel for State of Alaska
JAMES H. PERCIVAL
Chief of Staff
OFFICE OF THE ATTORNEY GENERAL OF
FLORIDA
The Capitol, Pl-01
Tallahassee, Florida 32399-1050
Counsel for the State of Florida
CHRISTOPHER M. CARR
Attorney General
BRENNA BIRD
Attorney General
STEPHEN J. PETRANY
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
GEORGIA
40 Capitol Square, SW
Atlanta, GA 30334
ERIC H. WESSAN
Solicitor General
OFFICE OF THE ATTORNEY GENERAL
OF IOWA
1305 E. Walnut Street
Des Moines, IA 50319
Counsel for the State of Georgia
Counsel for the State of Iowa
- 21 -
RAÚL R. LABRADOR
Attorney General
THEODORE E. ROKITA
Attorney General
JOSHUA N. TURNER
Chief of Constitutional Litigation and
Policy
JAMES A. BARTA
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
INDIANA
302 W. WASHINGTON ST.
Indianapolis, IN 46204
ALAN M. HURST
Solicitor General
OFFICE OF THE IDAHO ATTORNEY
GENERAL
P.O. Box 83720
Boise, Idaho 83720
Counsel for State of Indiana
Counsel for the State of Idaho
RUSSELL COLEMAN
Attorney General
KRIS KOBACH
Attorney General
MATTHEW F. KUHN
Solicitor General
OFFICE OF THE KENTUCKY ATTORNEY
GENERAL
700 Capital Avenue, Suite 118
Frankfort, KY 40601
ANTHONY J. POWELL
Solicitor General
KANSAS ATTORNEY GENERAL’S OFFICE
120 SW 10th Avenue, 2nd Floor
Topeka, Kansas 66612-1597
Counsel for the Commonwealth of
Kentucky
Counsel for the State of Kansas
LIZ MURRILL
Attorney General
ANDREW BAILEY
Attorney General
J. BENJAMIN AGUIÑAGA
Solicitor General
LOUISIANA DEPARTMENT OF JUSTICE
1885 N. Third Street
Baton Rouge, LA 70804
JOSHUA M. DIVINE
Solicitor General
Counsel for the State of Louisiana
SAMUEL C. FREEDLUND
Deputy Solicitor General
MISSOURI ATTORNEY GENERAL’S OFFICE
207 West High St.
Jefferson City, MO 65101
Counsel for State of Missouri
- 22 -
LYNN FITCH
Attorney General
AUSTIN KNUDSEN
Attorney General
JUSTIN L. MATHENY
Deputy Solicitor General
OFFICE OF THE MISSISSIPPI ATTORNEY
GENERAL
P.O. Box 220
Jackson, MS 39205-0220
CHRISTIAN B. CORRIGAN
Solicitor General
MONTANA DEPARTMENT OF JUSTICE
215 North Sanders P.O. Box 201401
Helena, MT 59620-1401
Counsel for State of Mississippi
Counsel for the State of Montana
DREW H. WRIGLEY
Attorney General
MICHAEL T. HILGERS
Attorney General
PHILIP AXT
Solicitor General
OFFICE OF ATTORNEY GENERAL OF
NORTH DAKOTA
600 E. Boulevard Ave., Dept. 125
Bismarck, ND 58505
ERIC J. HAMILTON
Solicitor General
NEBRASKA DEPARTMENT OF JUSTICE
2115 State Capitol
Lincoln, Nebraska 68509
Counsel for State of North Dakota
Counsel for the State of Nebraska
DAVID YOST
Attorney General
ALAN WILSON
Attorney General
T. ELLIOT GAISER
Solicitor General
ROBERT D. COOK
Solicitor General
MATHURA J. SRIDHARAN
Deputy Solicitor General
OHIO ATTORNEY GENERAL’S OFFICE
30 E. Broad Street
Columbus, OH 43215
J. EMORY SMITH, JR.
Deputy Solicitor General
Counsel for the State of Ohio
JOSEPH D. SPATE
Assistant Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA
1000 Assembly Street
Columbia, SC 29201
Counsel for the State of South Carolina
- 23 -
JASON MIYARES
Attorney General
SEAN D. REYES
Attorney General
KEVIN M. GALLAGHER
Principal Deputy Solicitor General
VIRGINIA ATTORNEY GENERAL’S OFFICE
202 North 9th Street
Richmond, VA 23219
STANFORD E. PURSER
Solicitor General
UTAH ATTORNEY GENERAL’S OFFICE
160 East 300 South, 5th Floor
Salt Lake City, UT 84114
Counsel for the Commonwealth of
Virginia
Counsel for the State of Utah
BRIDGET HILL
Attorney General
PATRICK MORRISEY
Attorney General
D. DAVID DEWALD
Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL OF
WYOMING
109 State Capitol
Cheyenne, WY 82002
MICHAEL R. WILLIAMS
Solicitor General
OFFICE OF THE ATTORNEY GENERAL OF
WEST VIRGINIA
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25301
Counsel for the State of Wyoming
Counsel for the State of West Virginia
WARREN PETERSEN
President Of The Arizona
State Senate
BEN TOMA
Speaker Of The Arizona
House Of Representatives
By Counsel:
BRUNN (BEAU) W. ROYSDEN III
FUSION LAW, PLLC
7600 N. 15th St., Suite 150
Phoenix, Arizona 85020
By Counsel:
BRUNN (BEAU) W. ROYSDEN III
FUSION LAW, PLLC
7600 N. 15th St., Suite 150
Phoenix, Arizona 85020
Counsel for President of the
Arizona State Senate Warren
Petersen
Counsel for Speaker of the Arizona
House of Representatives Ben Toma
- 24 -
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.