throbber
USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 1 of 12
`
`ORAL ARGUMENT NOT YET SCHEDULED
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`)
`STATE OF NEW YORK; STATE
`)
`OF CALIFORNIA; STATE OF
`)
`CONNECTICUT; DISTRICT OF
`)
`COLUMBIA; STATE OF ILLINOIS;
`)
`STATE OF MARYLAND;
`)
`COMMONWEALTH OF
`)
`MASSACHUSETTS; STATE OF
`)
`MINNESOTA; STATE OF NEW
`)
`JERSEY; STATE OF OREGON;
`)
`COMMONWEALTH OF
`)
`PENNSYLVANIA; STATE OF
`)
`RHODE ISLAND; STATE OF
`)
`VERMONT; COMMONWEALTH
`)
`OF VIRGINIA; STATE OF
`)
`WASHINGTON; STATE OF
`WISCONSIN; CITY OF NEW YORK, )
` Petitioners
`)
`
`)
`v.
`)
`
`)
`
`)
`ENVIRONMENTAL PROTECTION
`)
`AGENCY; JANE NISHIDA, IN HER
`)
`OFFICIAL CAPACITY AS ACTING
`)
`ADMINISTRATOR OF THE UNITED )
`STATES ENVIRONMENTAL
`)
`PROTECTION AGENCY,
`)
` Respondents
`)
`
`
`
`
`
`
`
`
`
`
`No. 21-1028 (consolidated with
`No. 21-1060 and No. 21-1073)
`
`MOTION BY THE STATES OF TEXAS, ARKANSAS, LOUISIANA,
`MISSISSIPPI, MISSOURI, AND MONTANA
`TO GOVERN FURTHER PROCEEDINGS
`
`
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 2 of 12
`
`INTRODUCTION AND BACKGROUND
`
`In response to this Court’s latest order dated September 27, 2021, extending
`
`
`
`
`the deadline for filing motions to govern further proceedings to October 29, 2021,
`
`the States of Texas, Arkansas, Louisiana, Mississippi, Missouri, and Montana, (the
`
`“State Intervenors”) respectfully submit this motion to govern further proceedings
`
`in these consolidated cases, which concern petitions to challenge the United States
`
`Environmental Protection Agency’s (“the EPA’s”) most recent review of the Ozone
`
`National Ambient Air Quality Standards, 85 Fed. Reg. 87,256 (Dec. 31, 2020) (the
`
`“Ozone NAAQS Decision”).
`
`
`
`The Clean Air Act (the “Act”) obligates the EPA to set NAAQS for criteria
`
`pollutants, including ozone. As part of this responsibility, the EPA conducts five-
`
`year reviews of relevant scientific and technical information to determine whether
`
`existing NAAQS appropriately protect public health and welfare. 42 U.S.C.
`
`§ 7409(d)(1). In its 2015 review of the Ozone NAAQS, the EPA established new
`
`primary and secondary baselines for ozone pollution at 70 parts per billion. In 2020,
`
`the EPA duly reassessed the Ozone NAAQS and, after careful review of the most
`
`recent available scientific and technical information, consultation with its
`
`independent advisors, and consideration of over 50,000 comments, determined that
`
`the 2015 standards appropriately protected public health and welfare. Accordingly,
`
`
`
`2
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 3 of 12
`
`in its Ozone NAAQS Decision the EPA retained the 2015 Ozone NAAQS without
`
`revision. 85 Fed. Reg. at 87,256.
`
`Approximately three weeks later, on January 19, 2021, the State of New York
`
`along with sixteen other States and one municipality sought review of the Ozone
`
`NAAQS Decision. Thereafter, this Court issued an order setting certain case-
`
`management deadlines, Order, Doc. No. 1881731, and later consolidated this case
`
`with a similar case brought by the American Academy of Pediatrics and several other
`
`organizations, Doc. No. 1887219. On February 17, 2021, the EPA filed an
`
`unopposed motion to hold these consolidated cases in abeyance for 90 days. Doc.
`
`No. 1885865.
`
`
`
`As justification for that abeyance motion, the EPA cited an executive order by
`
`then newly-elected President Biden directing review of certain federal agency
`
`actions related to the environment taken during the Trump administration. Exec.
`
`Order No. 13990; 86 Fed. Reg. 7037 (Jan. 20, 2021). That executive order identified
`
`a non-exclusive list of federal agency actions for agency heads to review, including
`
`the EPA’s Ozone NAAQS Decision.
`
`
`
`The State Intervenors filed a timely motion to intervene in these proceedings,
`
`arguing that they have a direct and substantial interest in this action warranting
`
`intervention under Fed. R. App. Proc. 15(d), that the liberal intervention policies
`
`underlying Fed. R. Civ. P. 24 support granting intervention as of right, and that they
`
`
`
`3
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 4 of 12
`
`would be entitled to permissive intervention under relevant case law. Doc. No.
`
`1886099. The United States Chamber of Commerce, the American Forest & Paper
`
`Association, the American Petroleum Institute, the American Wood Council, and
`
`the American Chemistry Council also moved for leave to intervene (the “Industry
`
`Intervenors”). Doc. No. 1886030.
`
`On February 22, 2021, before any party responded to the intervention
`
`motions, the Court issued an order granting the EPA’s motion to hold these
`
`consolidated cases in abeyance and directing the parties to file motions to govern
`
`further proceedings no later than May 21, 2021. Doc. No. 1885866. In response to
`
`two additional EPA motions to extend the deadline for filing motions to govern
`
`further proceedings, this Court extended the filing deadline two additional times. By
`
`order dated September 21, 2021, this Court granted the intervention motions of the
`
`Sate Intervenors and the Industry Intervenors. The Court’s most recent order, dated
`
`September 27, 2021, requires parties to file motions to govern further proceedings
`
`by October 29, 2021.
`
`
`
`Counsel for the State Intervenors have conferred with known counsel for the
`
`parties. As of the date of this filing: (1) State Petitioners in 21-1028 have advised
`
`that they oppose the relief requested by State Intervenors in this motion to govern
`
`further proceedings, which asks this Court to place this case back on track for
`
`briefing on the merits; (2) Petitioner Center for Biological Diversity has advised that
`
`
`
`4
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 5 of 12
`
`it supports setting a briefing schedule for resolving the issue of EPA’s compliance
`
`with Section 7 of the Endangered Species Act, but takes no position at this time as
`
`to setting a briefing schedule for any other issues; (3) Respondents EPA, et al. have
`
`advised that they oppose the relief requested in this motion to govern; (4) Industry
`
`Intervenors have advised that they take no position with regard to this motion to
`
`govern; and (5) Environmental Petitioners have advised that they oppose the relief
`
`requested in this motion to govern.
`
`ARGUMENT
`
`For five reasons, the State Intervenors ask this Court to place this case back
`
`on track for briefing on the merits without further delay.
`
`First, all parties and potential parties are now in place, and the issue of
`
`whether the EPA’s Ozone NAAQS Decision is legally sustainable is fully ripe for
`
`review. See N.Y. State Ophthalmological Soc’y v. Bowen, 854 F.2d 1379, 1386
`
`(D.C. Cir. 1988) (“A controversy is ripe if further administrative process will not aid
`
`in the development of facts needed by the court to decide the question it is asked to
`
`consider.”). Although the possible filing of additional petitions to review the Ozone
`
`NAAQS Decision was cited by the EPA in support of its original unopposed motion
`
`for abeyance, the time for filing such petitions has elapsed. Accordingly, any
`
`additional petitions would be untimely. Furthermore, the deadline for filing
`
`intervention motions has also passed. Moreover, no new facts are required to aid the
`
`
`
`5
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 6 of 12
`
`court in deciding the sole issue in this case: whether the Ozone NAAQS Decision
`
`was lawfully made by the EPA. And the issue of whether the EPA can lawfully
`
`rescind or revise the Ozone NAAQS Decision is not before this Court.
`
`
`
`Second, the parties will not be injured if the current litigation continues while
`
`the EPA reconsiders the Ozone NAAQS Decision. This Court has already afforded
`
`the EPA the courtesy of holding this case in abeyance for well over 180 days in order
`
`to allow the new administration to reconsider the Ozone NAAQS Decision. If the
`
`EPA believes that it has the authority to review the Ozone NAAQS Decision, it may
`
`seek to initiate that review, if it so chooses, independent of this Court’s resolution of
`
`the instant case. If this Court upholds the Decision, the EPA can still pursue
`
`whatever administrative review processes are available under law to revise it. And
`
`the EPA’s use of those processes would be substantially aided by guidance from this
`
`Court as to the scope of the EPA’s obligations under the Clean Air Act.
`
`Third, the State Intervenors face serious potential injuries if the stay continues.
`
`See Nken v. Holder, 556 U.S. 418, 434 (2009) (noting that a court ruling on a motion
`
`to stay should consider whether the stay “will substantially injure the other parties
`
`interested in the proceeding; and . . . where the public interest lies”) (citation
`
`omitted).
`
`Under the Clean Air Act, each of the State Intervenors has the “primary
`
`responsibility for assuring air quality within” its borders “by submitting an
`
`
`
`6
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 7 of 12
`
`implementation plan” that “specif[ies] the manner in which primary and secondary
`
`ambient air quality standards will be achieved and maintained within” its borders.
`
`42 U.S.C. § 7407(a); see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 470 (2001).
`
`And if the States do not submit acceptable plans to the EPA within three years, they
`
`risk the imposition of federal implementation plans—which would deprive the State
`
`Intervenors of control over how Ozone NAAQs are implemented in their sovereign
`
`territory. See 42 U.S.C. § 7410(a), (c). But as long as the Ozone NAAQS Decision
`
`remains subject to challenge, the State Intervenors will not have clear guidance about
`
`what specific actions, if any, are appropriate with to ensure that their state
`
`implementation plans achieve and maintain the Ozone NAAQS. Knowing which
`
`specific federal mandates are required is essential to the sound operation of state
`
`government to ensure the type of “cooperative federalism” envisioned by Congress
`
`in the Clean Air Act. Del. Dep’t. of Nat. Res. & Envtl. Control v. EPA, 895 F.3d 90,
`
`102 (D.C. Cir. 2018) (citation omitted). The uncertainty caused by this litigation
`
`thus poses serious injuries to the States, who must continually ensure that they
`
`provide for the health, safety, and economic well-being of their residents. These
`
`potential injuries by the State Intervenors thus weigh in favor of this Court rejecting
`
`efforts to keep this case in abeyance. See Nken, 556 U.S. at 434.
`
`Fourth, the EPA cannot keep this case in abeyance forever while it reviews
`
`the Ozone NAAQS Decision. Cf. Am. Petroleum Inst. v. EPA, 683 F.3d 382, 388
`
`
`
`7
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 8 of 12
`
`(D.C. Cir. 2012) (noting that an agency cannot “stave off judicial review of a
`
`challenged rule simply by initiating a new proposed rulemaking” because that would
`
`mean “a savvy agency could perpetually dodge review”). The EPA could
`
`periodically continue to ask for delays (as it has several times already) which could
`
`last for years while it determines the extent to which it wishes to revise the Ozone
`
`NAAQS standard, thereby indefinitely leaving open the question of whether the
`
`Ozone NAAQS Decision is a valid exercise of agency authority.
`
`Fifth, “where a movant seeks relief that would delay court proceedings by
`
`other litigants he must make a strong showing of necessity because the relief would
`
`severely affect the rights of others.” Commodity Futures Trading Comm’n v.
`
`Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983). Here, there
`
`are no facts establishing a “strong necessity” for further delay.
`
`CONCLUSION
`
`For the foregoing reasons, the State Intervenors ask this Court:
`
`1.)
`
`not to extend beyond October 29, 2021, the Order granting the motion to
`
`hold in abeyance; and;
`
`2.)
`
`to issue a briefing and scheduling order moving this case forward.
`
`
`
`
`
`
`
`8
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 9 of 12
`
`DATED: October 29, 2021
`
`
`
`
`
`LESLIE RUTLEDGE
`
`Attorney General of Arkansas
`
`
`
`
`
`
`
`/s/Nicholas J. Bronni
`
`
`NICHOLAS J. BRONNI
`
`Arkansas Solicitor General
`
`VINCENT M. WAGNER
`
`Deputy Solicitor General
`
`DYLAN L. JACOBS
`
`
`Assistant Solicitor General
`Office of the Attorney General
`323 Center St., Suite 200
`
`Little Rock, AR 72201
`
`
`Tel.: (501) 682-2007
`
`
`nicholas.bronni@arkansas.gov
`
`
`
`
`
`
`JEFF LANDRY
`
`
`
`Attorney General of Louisiana
`
`
`
`
`
`
`
`/s/Elizabeth B. Murrill
`
`
`ELIZABETH B. MURRILL
`
`Solicitor General
`
`Office of the Attorney General
`Louisiana Department of Justice
`1885 N. Third St.
`
`
`Baton Rouge, LA 70804
`
`Tel.: (225) 326-6085
`
`
`murrille@ag.louisiana.gov
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`LYNN FITCH
`Attorney General of Mississippi
`
`
`
`
`
`
`/s/Justin L. Matheny
`
`
`JUSTIN L. MATHENY
`
`Deputy Solicitor General
`
`State of Mississippi
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`9
`
`Respectfully submitted,
`
`KEN PAXTON
`Attorney General of Texas
`
`BRENT WEBSTER
`First Assistant Attorney General
`
`/s/Judd E. Stone II
`JUDD E. STONE II
`Solicitor General
`
`
`
`
`
`LANORA PETTIT
`Deputy Solicitor General
`Office of the Attorney General
`P.O. Box 12548 (MC 059)
`Austin, TX 78711-2548
`Tel.: (512) 936-1896
`Fax: (512) 370-9191
`
`
`
`/s/Theodore Hadzi-Antich
`ROBERT HENNEKE
`Special Outside Counsel
`rhenneke@texaspolicy.com
`THEODORE HADZI-ANTICH
`Special Outside Counsel
`tha@texaspolicy.com
`TEXAS PUBLIC POLICY FOUNDATION
`901 Congress Ave.
`Austin, TX 78701
`Tel.: (512) 472-2700
`Counsel for the State of Texas
`
`AUSTIN KUNDSEN
`Attorney General of Montana
`
`
`/s/David M.S. Dewhirst
`DAVID M.S. DEWHIRST
`Solicitor General
`Office of the Attorney General
`
`
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 10 of 12
`
`
`
`
`
`
`215 North Sanders
`P.O. Box 201401
`Helena, MT 59620-4145
`david.dewhirst@mt.gov
`
`
`
`Office of the Attorney General
`P.O. Box 220
`
`
`
`Jackson, MS 39205
`
`
`Tel.: (601) 359-3680
`
`
`justin.matheny@ago.ms.gov
`
`ERIC S. SCHMITT
`Attorney General of Missouri
`
`/s/D. John Sauer
`D. JOHN SAUER
`Solicitor General
`Missouri Attorney General’s Office
`Supreme Court Building
`207 West High Street
`P.O. Box 899
`Jefferson City, MO 65102
`Tel.: (573) 751-8870
`john.sauer@ago.mo.gov
`
`
`
`
`
`
`
`
`
`
`10
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 11 of 12
`
`CERTIFICATE OF COMPLIANCE
`
`
`Pursuant to Federal Rule of Appellate Procedure 27(d)(2)(A) and 32(f) and
`
`
`
`
`(g), I hereby certify that the foregoing complies with the type-volume limitation
`
`because it contains 1,624 words, excluding exempted portions, according to the
`
`count of Microsoft Word.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/Theodore Hadzi-Antich
`THEODORE HADZI-ANTICH
`
`11
`
`

`

`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 12 of 12
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that the foregoing document was electronically filed on
`
`October 29, 2021, with the Clerk of the Court using the CM/ECF system, which will
`
`send a notification to all registered users.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/Theodore Hadzi-Antich
`THEODORE HADZI-ANTICH
`
`12
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket