On Tuesday, the Supreme Court heard oral arguments in Oklahoma versus the Environmental Protection Agency, a case on the judicial review of air pollution.
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NewsTranscript
00:00We'll hear argument next in Case 23-1067, Oklahoma versus the Environmental Protection Agency.
00:06Mr. Mansinghani.
00:08Thank you, Mr. Chief Justice, and may it please the Court.
00:12EPA actions to approve or disapprove state implementation plans are the prototypical action
00:18reviewed in the regional circuit. As I believe Mr. Stewart confirmed in the previous argument,
00:23all parties agree at this point that if EPA had disapproved Oklahoma's and Utah's plans in
00:29separate Federal Register notices, those would be locally applicable actions. So when it comes
00:34to applicability, the only disputed question is whether the disapprovals of these state plans are
00:39transformed into a single national action because EPA chose to process and publish them together
00:46with the disapprovals of 19 other states. But the text of the Act's venue provision directs the
00:51courts to look at the statutory authority under which EPA took its action, not the form of
00:56publication. Here, Section 7410 authorizes EPA to take local action, approval or disapproval of
01:04state implementation plans. EPA's position that the form of publication dictates the action's
01:09applicability for venue purposes has no basis in the text of the statute and indeed is at war with
01:14it. That leaves EPA's backup that the Oklahoma and Utah disapproval actions must be reviewed
01:20in the D.C. Circuit because they are based on a determination of nationwide scope or effect.
01:25That exception, however, only applies to actions where EPA arrives at a generic conclusion that
01:31applies uniformly to all states and that forms a dispositive reason for the agency's action
01:37irrespective of local factors. As Justice Gorsuch's and Kavanaugh's questions earlier today
01:44indicate, EPA's reading applying that exception anytime EPA articulates a rubric or a standard
01:50and then applies it to a local circumstance would mean essentially every local EPA action is one
01:55that is based on a nationwide determination. The Court should reverse the decision below and send
02:00this case back to the Tenth Circuit. I welcome the Court's questions. You heard the last argument.
02:07Factually, how does your case differ from the Refinery case? So one major difference is that
02:16state plan approvals and disapprovals are explicitly listed in the locally and regionally
02:22applicable part of the statute in the second sentence of the statute. That's not true of
02:29renewable fuel standard exemptions. So that makes this like a really easy case
02:34for us to say this is locally or regionally applicable.
02:38Is the nature of the presumption here different? Meaning there were two, arguably, in the first
02:47case, nationwide rules, one having to do with focusing just on compliance with legal requirement
02:58and the second, the presumption that you couldn't have hardship. Here, it's a different case.
03:07It's been strange in my mind because you don't actually have to follow the EPA's formula,
03:14correct? That's correct. We don't have to follow their modeling. We don't have to follow their
03:18framework and EPA was very clear about that. So whatever their framework is, since you don't have
03:25to follow it, it's hard to see how it has a nationwide effect, isn't it? That's correct.
03:31It's not even meets their definition of a determination, which is the conclusive
03:35ending of a controversy. If we didn't have to follow their framework, it's hard to see how it's
03:39even... The only argument that I see that might be different is that 1% rule that they have,
03:46and there's at least a bunch of amici who say that in absolutely every challenge to a SIP,
03:55that the 1% rule is being fought about. So could one say that that's determinative
04:03in a way that's nationwide? So EPA was also clear that with respect to the 1% rule, it has
04:10not imposed a requirement that states use a 1% threshold. That's at page 9373 of the
04:16final federal register notice. The other problem is that EPA didn't identify that as one of the
04:21nationwide determinations when they were invoking the venue exception. So you have a Chenery problem
04:27there and you also have a problem that the statute requires EPA to make a publication.
04:31And of course, this is also a long standing thing they've used. In page 47 of their brief,
04:37they acknowledge they've used the 1% rule in prior transport orders and in EME Homer,
04:42so it also doesn't meet their test for that reason because I guess EPA would consider it settled.
04:48When Utah tried to use an alternative as a one parts per billion threshold instead of a 1%
04:55threshold, it gave very Utah specific reasons for why dot at a one part per billion threshold
05:02was more appropriate. And EPA gave very Utah specific reasons for why it was rejecting
05:09Utah's Utah specific reasons. Council, if I might just push back a little bit, I would have thought
05:14that if anything, the intuitive appeal of the idea that your case involves nationwide
05:19determinations would be the stronger one in some ways for EPA, given that we're talking
05:26here about clean air obligations of states and the downwind impact of any state on others,
05:34it's good neighbor obligations as the statute calls it. I mean, gosh, if anything is nationwide
05:42impact, it's got to be air pollution because it travels. Well, the whole statute's about
05:47air pollution, but with respect to the good neighbor provision, EPA made clear that interstate
05:52ozone transport is a quote regional scale pollution problem. You can see that at page 9801
05:58of Oklahoma's proposed disapproval. Yeah, but it crosses the country in ways that don't respect our
06:04jurisdictional boundaries between circuits. Sure. And I think at most that makes it something that
06:09has regional effects. It's not a regional applicability when EPA disapproves this
06:14individual state's plan. So, for example, Oklahoma's plan was disapproved because it
06:19was polluting, allegedly significantly contributing to Texas non-attainment.
06:23You got two circuits right there. And for the reasons that Mr. Houston gave in the prior case,
06:28I don't think their two circuit rule really is something that... Why not? We're going to have
06:35different interpretations of the statute with different circuits and all these terrible splits,
06:41and gosh, we won't have the immediate resolution in the D.C. circuit that we could have. Well,
06:45respectfully, I don't think splits are all that terrible. Oh, oh, oh. This court's... Really,
06:52we deal with them? This court's landmark Clean Air Act cases, state implementation plan cases,
06:57train and Union Electric, both arose from circuit splits where different circuits were adjudicating
07:03different state plans, but it touched on cross-cutting issues, such as whether variances
07:08could be allowed in a state plan or whether EPA had to consider cost or feasibility,
07:13technical feasibility, in approving or disapproving a state plan. And there's no indication that those
07:18circuit splits that led to this court's landmark decisions in train and Union Electric were the
07:23things that Congress was trying to do away with. And, counsel, I mean, I thought your original
07:28point was that the statute itself, when in section, sentence two, talks about what counts as locally
07:35or regionally applicable and that should go in the appropriate circuit, includes approval of SIPs.
07:44That's correct. I mean, specifically. Specifically. So regardless of us thinking that
07:49air pollution seems national, Congress was putting it in the local or regional bucket.
07:54That's absolutely correct. So are you making the argument, then,
07:57that the third provision has no application to SIPs and never be applied to SIPs?
08:03No, Justice Gorsuch, I'm not making that argument.
08:06So you're making the argument that the first doesn't because we're in the second, locally or
08:11regional, and then we go to the exception and we have to decide whether or not it's in the DC
08:16circuit, but on the basis of the third prong, not the first one.
08:19That's correct, Justice Jackson. So the examples historically that arose prior to the enactment
08:24of the exception are both things that relate to SIPs. They weren't SIP approvals or disapprovals,
08:29necessarily, but the NRDC cases from the first and DC circuits that Mr. Stewart mentioned.
08:36The First Circuit said it involved an automatic application of standard nationwide guidelines to
08:41all plans that simultaneously preordained wholesale extensions of the attainment deadline.
08:48The Dayton Power case from the Sixth Circuit was the other case that led to, at least according
08:54to the legislative history, the enactment of this exception. And there, the Sixth Circuit said,
08:59what was at issue was a uniform rule that had the effect of amending every state's implementation
09:04plan in precisely the same way. Were these rules?
09:08Say that again? Were these rules?
09:13It's hard to say that the amendment of a state plan is a rulemaking, but it was published in
09:18the Federal Register as a rulemaking, in perhaps what I would say is a single order.
09:25And it's those types of things where you have a conclusion that applies uniformly to all states
09:32and that forms the dispositive reason for the agency's action that are covered by the exception.
09:37It's not the types of things that led to this court's cases in Trane and Union Electric where
09:42you have an intense mix of very local issues and perhaps some cross-cutting issues that may
09:49be true across different states. Not every state was a 1% threshold and issue. Not every state
09:56was the modeling that made the difference between approval or disapproval.
10:00And here, of course, EPA had issued approvals of state plans individually or sometimes in groups.
10:10And there's no indication that I've seen from EPA that there was a reason why its approvals
10:15were issued individually. It would go to the regional circuit and its disapprovals would go
10:20to the DC. Can I ask you about the remedy? So if we agree with you that the court of appeals here
10:28was wrong to hold that this was nationally applicable under prong one, would you say
10:37that we should remand it to the 10th circuit to apply steps two and potentially three?
10:43That would certainly be an option but not our first preference. So I think this court has fully
10:48in front of it the issue and it's fairly encompassed within the question presented
10:52as to whether the exception applies. And I think in elucidating how the exception applies in our
10:58case and the Calumet case, it'll provide greater guidance to lower courts by showing how it applies
11:04in two very different factual scenarios. Should we give the EPA's determination? I mean, that's a
11:14thing, right? I mean, EPA broke the determination. Is that owed deference? It is not owed deference
11:24on the question of whether the action is in fact based on a nationwide determination of scope and
11:29effect. And remember, this is a venue provision that we're interpreting and it's very unusual
11:34for this court to defer to one party or another's choice of venue. Instead, this court applies the
11:41law de novo. And so here the statute, as my friend Mr. Houston said, has two elements. One, that it
11:48is based on a determination of nationwide scope and effect. That's reviewed de novo. And second,
11:53that EPA publish a finding along those lines. And I think that could be reviewed for arbitrary
11:59and capriciousness if EPA chose or didn't choose to publish a finding in any given circumstance.
12:03But the first thing is reviewed de novo. Suppose that, you know, of these four determinations,
12:10let's just focus. Suppose that with just this one, which dealt with the contribution threshold.
12:16And suppose that the contribution threshold that EPA picked was super low. Like so instead of 1%,
12:23it was 0.01% or something like that. So low that you knew that every SIP was going to get
12:30rejected, every state plan. What would the answer be then?
12:37I think that would present a closer case. And I think that would get closest to what would be a
12:42determination of nationwide effect. So it wouldn't have nationwide scope because, you know, in theory
12:48a state could possibly be under that super low threshold. But it might still nonetheless be
12:54something that's of nationwide effect. I mean, it's of nationwide, you know,
12:57presumably they know what effect this is going to have in every state in my hypothetical. So it
13:06seems actually unusual not to say it would be of nationwide scope. And I'm not suggesting that
13:12my hypothetical is at all the same as your case. I mean, actually it seems to me that these four
13:19nationwide determinations, the nature of them is the agency still has to do a lot of work
13:29before deciding whether to issue, whether to approve any state SIP. But in my hypothetical,
13:36that's not right. Basically the nationwide determination is doing all the work.
13:40So I'll push back on one thing, Justice Kagan, which is to say that if the screening threshold
13:45operates in the same way in your hypothetical as it does in our rule, then yes, there still has to
13:51be a lot of work done because the screening threshold is just that. It screens out what
13:54are de minimis contributions and what are contributions that have to be further evaluated
13:59to determine whether they are significant. So even a really low screening threshold would still
14:03require a lot of further analysis to determine whether any given state's contributions to another
14:10state are significant. I take that point. So I guess I was hypothesizing a more simple-minded inquiry
14:16where basically this threshold was going to make the difference between approval and not.
14:21And it was set at so low a level that it was clear that no state could meet it. And then to me,
14:28that says, okay, that should be in the DC circuit. Like you don't want 11 circuits deciding whether
14:34that's a preposterously low level or not. Yeah. So if it was an automatic generic conclusion
14:39that applied to all states uniformly, you didn't have to really consider what are the state's
14:43circumstances. I think that would get very close to meeting the exception. Now, to be very
14:48clear, we would think that's very illegal and the EPA doesn't have the ability to set a
14:53screening threshold that low and to cabin in state discretion that much. But yes, a very illegal thing
14:59could be adjudicated by the DC circuit as very illegal. Do you agree or do you disagree with
15:05anything Mr. Houston said in the prior argument in terms of the scope of the third sentence or
15:14how much effect the third sentence might have in practice? So I think the only gap in our position
15:20is that Mr. Houston's position is that statute alone dictates what the relevant determination
15:25is. And I think my test is a little bit more flexible. That said, if Mr. Houston's position
15:32is correct, I think we still also prevail because in order to disapprove our state plans,
15:38EPA would have to conclude that Oklahoma was significantly contributing to another state.
15:43That is the relevant determination. Right. It has to look at the state specific. That's precisely
15:50correct. I perceived Mr. Houston's argument to be substantially different than yours. So maybe
15:55I'm not understanding. I thought you were willing to accept the idea that the third prong
16:05allows for a generic conclusion by the EPA that applies uniformly irrespective of factual
16:13differences and that that could be enough. And I took Mr. Houston to be saying something different
16:19than that. So I take Mr. Houston to be saying that that generic conclusion has to be mandated by
16:25statute. I don't quite go that far. But I think otherwise our tests are very similar. Thank you.
16:35Thank you, counsel. Anything further? Further? Thank you. Thank you, your honor.
16:51Mr. Seidlin. Mr. Chief Justice, and may it please the court. The Clean Air Act's venue provision
16:58channels challenges to national EPA actions to the D.C. Circuit while channeling challenges to
17:04local or regional EPA actions such as SIP, approvals, and disapprovals to the regional circuits.
17:10As you heard this morning, EPA attempts to change this neutral venue rule which respects cooperative
17:17federalism and the expertise of regional circuits into something very different. There are three
17:22fundamental problems with EPA's approach. First, it is a war with the statutory text, including
17:28because it requires for it to not devolve into everything being the D.C. Circuit, the creation
17:36of multiple non-statutory tests, like whether the bundling of multiple actions is a sham,
17:42like whether a determination made somewhere in a federal register preamble is novel. Second,
17:50it leads to unadministrable, wasteful litigation about where actions should be brought. We saw this
17:57with some of my friends' answers today about how you have to look at all the comments that
18:02were submitted, and I was thinking, for these 21 states, how tall the comment letters would be.
18:09Piling up next to me, I'd have to read all of them to determine which court that I would need to sue
18:14in. And finally, and we haven't heard that much about it today, it leads to an opportunity of
18:19significant venue manipulation by EPA that Congress certainly did not envision. I welcome
18:25the Court's questions. Just as a matter of curiosity, what is the difference between
18:30an action that is nationally applicable and one that is nationwide in effect or scope?
18:37Right. So whether an action is nationally applicable is based on the statutory authority
18:44under which Congress is acting. So with SIP approvals or disapprovals, under 110k, that has
18:50to be done state by state. However, hypothetically, there could be a SIP disapproval or SIP approval
18:57that hypothetically could have nationwide effect. The example that we talked about is a complete
19:04hypothetical example that we talked about in our prior brief. If a state's pollution problem is so
19:10significant that it pollutes across the entire nation, let's say it has that much NOx emissions
19:14and it goes all across the nation, theoretically, that locally applicable action would have a
19:20nationwide effect. And so that would be an example where the exception would have a real meaning.
19:28Now, I want to cover this issue of venue manipulation that hasn't gotten, even though
19:33we've been here for like two hours, that hasn't gotten a lot of airing. And I think it's a very
19:36problematic aspect of both EPA's arguments on the first two sentences and on its exception.
19:43EPA essentially says that if it packages separate actions in a single federal register notice
19:52subject to an ill-defined sham exception, it can always get into the D.C. circuit. Further,
19:58EPA says that under the exception, if that's not good enough to get them to the D.C. circuit every
20:01time, they can say, well, we can point to any general reasoning, which as Justice Gorsuch
20:06pointed out is just non-arbitrary capricious rulemaking under the APA, and say that that
20:12sends us to the D.C. circuit under the third prong. It is that amount of power for EPA to
20:22essentially take locally and generally applicable actions and send them to D.C., send them here,
20:28is a war with the Clean Air Act's cooperative federalism regime. And with regard to SIPs,
20:32which are a big part of that, in particular, the whole notion of SIPs, including with transport
20:38SIPs, is that those are state-specific. Those are decisions made by the states how to control
20:45pollution coming from sources in the state. The venue provision here is just part and parcel of
20:50that, that when you have those state-specific decisions, you don't have to go to D.C.
20:56to litigate the legality of that. You get to stay in your own backyard. And the cases here,
21:01the ones that are pending in the lower courts, are a stark example of what would happen if you
21:08allow EPA to essentially subvert this regime. Can I ask you about your view of remand? Would
21:16you object if we reversed the decision on the nationally applicable prong and sent it back to
21:23the Tenth Circuit for a determination of whether or not the exception applies here?
21:29Certainly, I never want to turn down a win, but I would say that one of the arguments made by EPA
21:36in opposition to our cert petition was that the Tenth Circuit hadn't decided that question,
21:42and our answer in our reply brief wasn't like, give us a round trip. It was that the issue had
21:48been fully briefed, it had been decided in other circuits, and this court would be fully able to
21:52answer it. We've now been here for, we've got a lot of pages of briefing, a lot of oral arguments.
21:57I think that this court is now in a good position to decide the meaning of that third sentence
22:04and to apply it both in the Calumet case and in our case here.
22:10And so just to finish my thought, when thinking about what would be the consequence of allowing
22:17EPA to jam all these cases into the D.C. Circuit, we took a look at how many pages
22:22in the Sixth Circuit, in the Sixth Circuits that are currently taking briefing in these cases,
22:30focus on specific issues, and we counted up to 300 pages of just merits briefing that were
22:36focusing on just the specific issues, not to say on the background section. To say that all of this
22:42could be jammed into the D.C. Circuit and that these local, intensely local issues, quintessentially
22:47local issues, would be able to practically get a fair airing is, I think, don't think, not realistic
22:53and not what Congress envisioned. Now, I will say that we do have a different wrinkle in the
23:00way we approach the third sentence, which I... I thought your point on the venue was just convenience,
23:04not, or is there more to it than that? Sorry. In other words, you want to be able to litigate in
23:09your home. You know, it's more convenient to litigate in the circuit, in the home.
23:16It's more convenient, it's also... Is there anything else to it that you're, is behind,
23:20any other premise behind your comment there? Yeah, well, it's, it's, I guess, depends how you
23:26define the word convenient. I mean, that you get to litigate your issues without being jammed in
23:33with folks that want to submit 270 pages of briefing on issues in different parts of the
23:38country. SIPs are quintessentially, decisional SIPs, quintessentially local. You know, we had,
23:44you know, there was, there was, you know, again, the comment... The premise there, I'm not going
23:48to dispute it too much, but, you know, they, they get fair attention in both courts. It is true that
23:54the, you know, the judges of the D.C. Circuit are excellent judges and work very hard, but... And
24:01they're not afraid to rule against EPA pretty routinely either, when justified. When, when
24:07justified, but, but I would also say that as a practical matter, when you get, when you get
24:15consolidated in the D.C. Circuit, the fight for word count and page count to raise the total...
24:21That is, I mean, I don't... Those of you who have... It is fierce to get a couple of pages
24:26on these local specific issues. You know, these 300 pages, you know, that there are, you know,
24:30when I thought our case was being transferred to D.C., thinking about how things that I had 15
24:36pages to say, I would now have two pages to say, three pages to say. That was a daunting thought,
24:40and certainly not what Congress envisioned. When it's specifically listed in the second sentence,
24:45the SIP approvals and disapprovals go to the regional circuits. Mr. Saitlan, explain to me
24:52how, notwithstanding the four determinations, how a SIP approval would vary among states. Like,
25:01what, what, what would the variations be, notwithstanding that the EPA has made these
25:06four nationwide determinations? Well, if you're talking about the third sentence,
25:14our approach to the... I'm talking about the third sentence. Our approach to the third sentence
25:18is somewhat different. While it does ultimately lead to the same result as, as my friends in the
25:23states... But mostly I'm not talking about any sentence. I'm, I'm actually just talking about,
25:27like, your sense of the practicalities of the situation. You come in with a SIP, EPA has to
25:34approve it, has to disapprove it. They've said these four things, which apply uniformly to all
25:39their approval, disapproval decisions. But I'm taking it that you're saying, notwithstanding
25:44that they've said those four things, the supposed common denominator actually pales in significance
25:51relative to the state-specific circumstances and situations and arguments and so on.
25:57And I think I want a little bit more meat on the bones as to what that would, what that means.
26:03Yeah. So, I mean, I will say that those kinds of observations are not really relevant to either
26:09one of our aspects of our tests. You know, our first test for applicability is just...
26:15I just want, like, your sense of, like, what happens?
26:18Well, what happens is, for example, on the, the one, the one, the 1% threshold, you know,
26:23Utah's and, you know, Pacific Corp was my client there. Our submission was that, you know,
26:29with regard to states in the West, the, the 1% doesn't make sense. And we use an example...
26:37Not what I'm saying. Suppose we take these four nationwide determinations,
26:42and we just assume that the EPA is going to apply them uniformly. Is there still work to be done
26:48as to any SIP approval, disapproval decision?
26:51Yes, of course.
26:52So what is the, what is the non-common denominator work that remains to be done?
26:57The space-specific arguments. For example, in Utah, we made the argument that we are like Arizona.
27:02And Arizona, a couple years before, EPA had declined to apply the, the 1% threshold,
27:08essentially because the downstate pollution there was to California,
27:13and the mountains were essentially trapping most of the, most of the pollution there.
27:16And so the one, there was so much, so little import to the contribution that Arizona was making
27:22to California that it wouldn't make any sense to apply the 1% threshold.
27:27We said, we in Utah, we're, we're told that we're triggering monitors in the Denver area.
27:31We said, look, there's mountains around Denver. It's trapping it over there.
27:35And so treat us like Arizona. Now, that is a very specific, regional specific thing that,
27:41you know, I wouldn't get to our, you know, it would get lost in the, in the DC circuit.
27:46And also it is not one of the four determinations. It's something very particular.
27:51Thank you, counsel. Justice Thomas, anything further?
27:56It doesn't get lost. I'll just say that.
27:59I'm sorry, Justice Gorsuch, anything?
28:01Yeah, but there are four things, right? I mean, the EPA says they're uncommon to all,
28:06and wouldn't it be efficient to have those determined in one venue
28:10with excellent judges who pay close attention to them?
28:14And then any other regional matters to resolve regionally?
28:16Yeah, well, as-
28:17That would be a good system too, right?
28:20Certainly, that would be a system that Congress could enact further, further the way that,
28:25you know, that, you know.
28:29Justice Kavanaugh?
28:29Just to make sure on deference, are you saying no deference to EPA's determination
28:36that it's nationwide scope and effect?
28:39Yeah, my position is the same as Mr. Houston, but I will have one addition, sorry.
28:43Yeah, go ahead.
28:43My additional wrinkle is that regardless of whether the court
28:48believes that deference is warranted to when EPA apprised the proper framework,
28:53here, there's no deference to the fact that the finding that they made was on the wrong thing.
28:59So if you take a look at the Federal Register notice,
29:02the only thing that they're finding as a nationwide determination of scope and effect
29:05is based on the fundamental flaw that applies to the first and second sentence,
29:09which is that they think that the action is all 21.
29:12So the fact that they identified the wrong,
29:15the wrong action wouldn't be entitled to deference no matter what.
29:18I understand that point.
29:19Okay, thank you.
29:21Justice Barrett?
29:22Justice Jackson?
29:22You said a couple of times that your approach to the third sentence differed,
29:26but you never quite got out.
29:28How so?
29:29Yeah, so the sentence, the key sentence is,
29:32if such an action is based on a determination of scope, of nationwide scope and effect.
29:36We think that the word of is ambiguous.
29:39We take the states and maybe EPA to read of as,
29:44if such an action is based on a determination that has a nationwide scope and effect.
29:48We read that of, to be in,
29:50if such an action is based on a determination of that action's nationwide scope and effect.
29:55And I think if, you know, as this opinion writes,
29:58I think if you take a look at that,
30:01that is the most administrable rule that can be made for the third sentence.
30:06And it gives it real import, even though it's in a limited number of cases.
30:12Thank you, counsel.
30:16Mr. Stewart, welcome back.
30:18Thank you, Mr. Chief Justice, and may it please the court.
30:20Let me just make two or three quick observations and then take questions.
30:26The first is that there's been colloquy in both of these cases
30:32about the propriety of EPA getting deference
30:35on a question about what forum the case will be heard in.
30:39Under the statute, EPAs has some influence on the question
30:43whether the case, all challenges to a particular action,
30:46will be heard in a centralized forum
30:49or whether instead they can be brought all throughout the country.
30:53And if EPA chooses the former course,
30:57the fact that the cases go to the D.C. Circuit,
30:59the fact that the D.C. Circuit is the centralized forum,
31:02that's the choice of Congress.
31:03That's not the choice of EPA.
31:05And so it's not the case that EPA can direct challenges
31:09to whatever court it wishes.
31:11The second thing I would say, and this goes back
31:13to the NRDC cases that I mentioned earlier,
31:16that when Congress was studying the venue provision
31:20in preparation for the 1977 amendments,
31:24it had in mind the approval actions that had taken place
31:28and been challenged in the NRDC cases.
31:32And when it chose the path
31:34that EPA's general counsel recommended rather
31:37than the path that ACUS recommended,
31:40it wanted to ensure that there was some mechanism available
31:44for review of national issues even when they pertained
31:48to the approval or disapproval of SIPs.
31:51And finally, Justice Kagan, you said something to the effect
31:55and that under EPA's framework here as opposed
31:59to the framework in the case before,
32:02even once you got past the 1% threshold, the one questions
32:07about the propriety of the 1% de minimis threshold,
32:10there was still a lot of work to be done.
32:12And I think the analysis is complicated.
32:15But at the end of the day, EPA disapproved 21 plans
32:19and approved I think 23.
32:21I believe that all 23 plans
32:23that were approved were approved on the ground
32:26that the state fell under the 1% de minimis threshold.
32:29So as a practical matter, the determination
32:32of whether a particular state exceeded the 1% threshold had
32:37great predictive effect in terms
32:39of whether the plan would be approved or disapproved.
32:42I welcome the court's questions.
32:44But once you got past the 1% threshold which they have
32:49in common, the rest of it seems quite particularized
32:53and how would you deal with that as opposed
32:55to the refineries where we were only talking
32:58about a couple of factors?
32:59Well, I would say that they do require analysis
33:03of particular state circumstances
33:05but they are still national in scope
33:08and they still were contested.
33:10That is EPA received comments indicating that challenges
33:14to even the subsequent steps
33:17of the analysis were not simply going to be,
33:20we accept these factors but we think we satisfy them.
33:23There were going to be challenges
33:24to the factors themselves.
33:26And there's been talk about the benefit of having a simple
33:31and straightforward standard and I think that's true.
33:34I also think the point Mr. Saitlin makes is a significant
33:39one too that if you're, whatever you wanna put it,
33:43more at home in your local circuit and less likely
33:47to get lost in the shuffle here in Washington.
33:51And I wondered if you had a response
33:53to his concern in that respect.
33:54I mean I think that just, I mean part of the awkwardness
33:57of the case is the extent of the statute is the extent
34:01to which that is so depends on the extent
34:03to which your challenges are to the national criteria
34:07that EPA has promulgated or whether they are to the way
34:11in which those criteria are applied
34:14to your own state specific circumstances.
34:16And the more that the latter is the case,
34:19the more it makes sense to be in the regional circuit.
34:21The reason I say it's an awkwardness
34:23of the statute is the statute requires
34:25that the venue determination be made as of at the time
34:29that the action is taken and it doesn't take
34:31into account what set of challenges do particular
34:35petitions for review choose to make.
34:39And so the best we can do is have a test that tries
34:42to use proxies for actions that are
34:46as to which the national determinations are likely
34:48to be the focus of judicial review.
34:50So the statute does look at the action at the time it's taken
34:54and sentence two very clearly puts these kinds of actions,
35:00the SIPs, in the local or regional bucket.
35:03So I guess I'm confused as to why the government is even taking
35:06the position that the first bucket is applicable here.
35:10I mean, we see the specification of SIP decisions
35:14in prong two as referring
35:16to decisions regarding an individual SIP.
35:20And to the extent that we publish approvals or disapprovals
35:24of particular state SIPs on a one-on-to-one basis,
35:29we would agree that those are regionally or...
35:32So you think the statute was really meant to distinguish
35:36between one and two on the basis
35:38of the EPA's publishing determinations?
35:40Well, I would say that the statute was meant
35:42to distinguish between one and two on the basis
35:45of the action that EPA took.
35:47And if you regard what EPA did here
35:50as simply a publishing decision,
35:52then we would say no, you should probably disregard it.
35:55We think of it as more than that.
35:57In the same way...
35:57Are they materially different?
35:59If what the EPA did here was separate out, I mean,
36:04I understand I see one publication
36:07that lists each state separately and has the analysis
36:11for each state separately.
36:12If EPA put a page break between each one of the states
36:16and published them differently,
36:17would you say that's a sentence two scenario?
36:19I don't think a page break would be enough,
36:21but if EPA issued different, you know,
36:2321 different federal register notices
36:26on 21 consecutive days all applying the...
36:29With the same content, exactly the same content.
36:32With the same kind of content as to the nationwide part of it
36:35and then each one with a different analysis,
36:39how does this content, the nationwide content apply
36:42to the particular state involved?
36:44Then we would say that's a series
36:45of discrete state-specific actions.
36:48And in a way, the most straightforward way for us
36:52to prevail in this case ultimately is on prong three
36:55because the analysis under prong three doesn't depend on what
36:59if any weight the court gives to EPA's decision to issue these,
37:03all of these in one federal register notice.
37:07So on the prong three determination,
37:11what is your view as to why this is still driven?
37:17I understand that you have four factors
37:19and you're applying the four factors and we would hope
37:22that that would be the case,
37:23that you would be assessing each state consistently using a set
37:27of criteria, but I take your point that that's enough
37:32to make it a determination of national scope or application?
37:38Well, I mean, it is partly
37:40that they were the four criteria we were going to use.
37:43It was partly that they at least
37:45to a degree were new and contested.
37:48We anticipated from comments we received
37:51on the proposed disapprovals
37:53that the states would contest the methodology,
37:55not just its application.
37:57The other thing I would say is all
37:59of the states whose plans were disapproved had proposed
38:02to take no further ameliorative action with respect
38:06to ozone transport beyond what they were already doing.
38:09So it would have been a much more complicated analysis
38:12if various states had been planning to improve their plans
38:16in different ways and EPA was required to make state
38:20by state determinations as to is this good enough.
38:24Instead, we approved a lot of plans that for states
38:29that fell below the 1% threshold, disapproved a lot
38:32of plans for states that in our view fell above it
38:35and that didn't propose to do anything additional.
38:37So you knew the challenges were going to be to the four factors
38:41because the plans in all the states was to do nothing
38:45and so it had to challenge the factors that you were using.
38:50We anticipated that and we had confirmation of that
38:54from the fact that we had proposed,
38:56had published proposed disapprovals for each
39:00of the states and had received comments on.
39:02Saying this much.
39:03Yes, exactly.
39:03And so again, as I take it, you're consistent
39:07between the two cases in this respect.
39:09You're saying there are new criteria, that's what's going
39:12to get challenged, that should go to the D.C. Circuit
39:14and maybe 10 years later when the criteria are settled
39:17and it really does turn on local factors,
39:20then the regional circuits can take over again.
39:22Yes, exactly.
39:24But isn't it here how those factors are actually working
39:29and the differences in the modeling in each state
39:34that is driving the determination?
39:36I mean, I think this goes back to Justice Kagan's points earlier
39:40that yes, the factors are new, they're going to be contested
39:45and if those factors had necessarily come
39:48out the same way because we didn't really care
39:51about the facts of each case in the application,
39:54then perhaps it would make sense
39:56to have the D.C. Circuit doing it.
39:59But if you're applying new factors and it matters
40:04that you are Denver versus, you know, Arizona or whatever
40:08in terms of how the modeling works,
40:11I guess I don't see how this is necessarily the same
40:14as the refining, the refinery determination.
40:17I mean, there's an obvious difference in outcomes
40:20in the sense that with the refineries,
40:22we ultimately denied all 105 of the exemption applications
40:27whereas with the various state plans that EPA got,
40:30we disapproved 21 of them and approved 23 or plus
40:36or minus 1 or 2 of that.
40:38So we were approving a little over half the plan submissions.
40:43In that case, it looks as though there's more
40:46and there is more state specific variation in outcome.
40:49The two things I would say are a determination can be,
40:54a nationwide determination can be central to the analysis
40:59and be the focus of judicial scrutiny and be the sort
41:02of thing that for which centralized review is important
41:06even if it doesn't kind of preordain the outcome
41:10of a particular matter.
41:11And then the second thing I would say is with respect
41:14to the state by state variations here,
41:17the big predictor was did you fall above
41:21or below the 1 percent?
41:22I know, but we're in the exception.
41:24I mean, the thing that troubles me about your first point
41:27at least is that we've already determined in the structure
41:31of the statute that these are local
41:33because we're in prong three.
41:35And the exception, I would think,
41:38would just be identifying the particular circumstances
41:42in which even though we know we have state specific variation
41:46that matters, that's why we're local, we're still going
41:49to say no, this is really being driven in a significant way
41:54by the national determination.
41:57And so I guess I just don't, it's hard for me to square
42:01that understanding of the structure of the statute
42:03and the fact that we're in an exception with an argument
42:06that says yes, but there's a national standard doing
42:09some work here.
42:10Well, I mean, obviously the only people who are going
42:14to seek judicial review are people who didn't get the result
42:18that they want from the agency.
42:20And so in the case of SIP disapprovals,
42:23the disappointed parties would predominantly be states
42:26to some extent, industry.
42:28And so you would have to ask, if you were trying to route
42:33to the D.C. Circuit the recurring national issues while leaving
42:36local issues to the regional circuits,
42:39you'd want to be anticipating as best you can, are the people
42:43who are disappointed by this decision likely in the main
42:47to challenge it on the ground
42:49that the national framework was no good
42:51or in the main will they argue
42:53that even accepting the national framework,
42:55the outcome should have been different in my case.
42:58Again, based on both kind of the nature of the inquiry
43:02and the comments we had received on the proposed disapprovals,
43:06EPA anticipated that in the main the challenges would be
43:10to the nationwide aspects.
43:11And although it's not directly relevant
43:13to the venue question, that's been borne out in practice.
43:16The people who have challenged these, the SIP disapprovals
43:19in the regional circuits have primarily focused
43:22on the nationwide framework rather
43:25than on the site-specific application.
43:29In your rebuttal in the earlier case where you said some cases
43:34ended up in the D.C. Circuit without being challenged,
43:37the venue being challenged.
43:39And I think that's right.
43:41Were you referring though to the prong one cases
43:44or prong three cases?
43:45I mean I think in most of these cases, it would,
43:49EPA would identify both in the rulemaking as bases
43:53for D.C. Circuit venue.
43:54And so as happened in this federal,
43:57these federal register notices.
43:58They're both prong one and.
43:59Both prong one and three.
44:01And because the people sued in the D.C. Circuit
44:04and nobody contested venue, it wasn't.
44:07But the point, I think the point would be is different
44:10if it were exclusively prong three situation.
44:13I think that's right.
44:15Although.
44:15Then it would.
44:16I guess my own.
44:18You get my point.
44:18Yeah. And my response to Mr. Houston was just to the effect
44:22that the fact that we can't point to published court
44:25of appeals opinions that have upheld prong three findings
44:29by EPA is more a function
44:33of those findings not being challenged in prior litigation
44:37than it is of we make findings, prong three findings
44:40and sometimes they're struck down and.
44:43But they're never upheld.
44:44That, that hasn't been the case.
44:45We're not aware of any case
44:46in which EPA has made a prong three finding
44:49and a court has disapproved it.
44:55I, I guess the, the last thing I wanted
44:57to say is I'm being, I've always been used in these papers
45:01by references to the DC Circuit as a hometown court for EPA
45:05because if location in DC meant that the DC Circuit is a hometown
45:11court, then this court would be a hometown court for EPA
45:14and I've never had that perception.
45:17Thank you, Mr. Chief Justice.
45:21Or did.
45:22Yeah. Anything further?
45:24Thank you, counsel.
45:29Mr. Mansinghani.
45:32Thank you, Mr. Chief Justice.
45:34Two quick points.
45:36To Justice Kagan's question
45:39about whether the four determinations were sort
45:41of the be all end all here and it seems like Mr. Stewart seemed
45:45to think so with the 1% threshold.
45:47If you look at Oklahoma's plan, Oklahoma said, look,
45:51even, even though we're above the screening threshold,
45:54here's why our contributions are not significantly going
45:58to contribute to non-attainment downwind.
46:01Look at the trends in Oklahoma's emissions due
46:03to the specific structure of the southern power pool
46:07and to how Oklahoma operates its electric generating fleet and look
46:11at the dropping ozone levels in downwind states like Texas
46:15because of mobile source changes.
46:17EPA rejected those rationales,
46:19but nonetheless those were state specific things that ended
46:22up controlling the decision.
46:25Similarly with Utah.
46:27Utah said, based on a weight of the evidence analysis,
46:30we don't think we're significantly contributing
46:32because in the west, as EPA had prior determined with states
46:37like Arizona and California,
46:39the relative contributions are relatively low, around 6
46:45to 7% are coming from other states, very different
46:48from what's happening in the east.
46:49So these were all very state specific things
46:52that EPA had to adjudicate even after it got past all
46:56of those four determinations.
46:58The second thing I wanted to talk about was where we are
47:02with the text of the exception.
47:05You know, Mr. Stewart's test has a lot
47:07of atextual things to it.
47:09Well, it has to be a determination,
47:10but a new one, not an old one.
47:13We have to try to figure out where, what,
47:16what part of the action litigants are likely to challenge,
47:19are they likely to challenge the local aspects
47:22or the national aspects?
47:23That seems like a very hard to adjudicate venue test
47:28and it's also something that doesn't come
47:29from anywhere in the statute.
47:31I think our test comes from the words based on,
47:34which in this court's Foreign Sovereign Immunities Act
47:37decision in Sachs, I think takes a similar approach as we do.
47:41It has to be the gravamen or foundation of the action
47:45and not just an element.
47:47And in that case, this court declined
47:49to apply the commercial activities exception
47:52in a unanimous decision even though plaintiffs had alleged
47:56commercial activities because the court said that alleging all
47:59of those things alone still entitled plaintiffs to nothing.
48:02But then you also couple that with the fact
48:05that I think the third sentence has to be read
48:07in conjunction with the first two.
48:08It has to be things like are in the first sentence,
48:11like the setting of a national uniform air quality standard
48:15or a national uniform standard of performance for sources.
48:19Couple that with the types of cases that we talked about
48:22like the NRDC cases and Dayton Power cases
48:25and the fact that this is a venue clause
48:27so it shouldn't be manipulable
48:29and the fact that it's an exception
48:31so it shouldn't be read to swallow the rule.
48:33I think all of that leads to our test.
48:36Thank you, counsel.
48:37The case is submitted.
48:40The honorable court is now adjourned
48:42until tomorrow at 10 o'clock.