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`ORAL ARGUMENT NOT YET SCHEDULED
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
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`STATE OF NEW YORK; STATE
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`OF CALIFORNIA; STATE OF
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`CONNECTICUT; DISTRICT OF
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`COLUMBIA; STATE OF ILLINOIS;
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`STATE OF MARYLAND;
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`COMMONWEALTH OF
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`MASSACHUSETTS; STATE OF
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`MINNESOTA; STATE OF NEW
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`JERSEY; STATE OF OREGON;
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`COMMONWEALTH OF
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`PENNSYLVANIA; STATE OF
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`RHODE ISLAND; STATE OF
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`VERMONT; COMMONWEALTH
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`OF VIRGINIA; STATE OF
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`WASHINGTON; STATE OF
`WISCONSIN; CITY OF NEW YORK, )
` Petitioners
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`v.
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`ENVIRONMENTAL PROTECTION
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`AGENCY; JANE NISHIDA, IN HER
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`OFFICIAL CAPACITY AS ACTING
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`ADMINISTRATOR OF THE UNITED )
`STATES ENVIRONMENTAL
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`PROTECTION AGENCY,
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` Respondents
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`No. 21-1028 (consolidated with
`No. 21-1060 and No. 21-1073)
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`MOTION BY THE STATES OF TEXAS, ARKANSAS, LOUISIANA,
`MISSISSIPPI, MISSOURI, AND MONTANA
`TO GOVERN FURTHER PROCEEDINGS
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 2 of 12
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`INTRODUCTION AND BACKGROUND
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`In response to this Court’s latest order dated September 27, 2021, extending
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`the deadline for filing motions to govern further proceedings to October 29, 2021,
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`the States of Texas, Arkansas, Louisiana, Mississippi, Missouri, and Montana, (the
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`“State Intervenors”) respectfully submit this motion to govern further proceedings
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`in these consolidated cases, which concern petitions to challenge the United States
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`Environmental Protection Agency’s (“the EPA’s”) most recent review of the Ozone
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`National Ambient Air Quality Standards, 85 Fed. Reg. 87,256 (Dec. 31, 2020) (the
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`“Ozone NAAQS Decision”).
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`The Clean Air Act (the “Act”) obligates the EPA to set NAAQS for criteria
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`pollutants, including ozone. As part of this responsibility, the EPA conducts five-
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`year reviews of relevant scientific and technical information to determine whether
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`existing NAAQS appropriately protect public health and welfare. 42 U.S.C.
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`§ 7409(d)(1). In its 2015 review of the Ozone NAAQS, the EPA established new
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`primary and secondary baselines for ozone pollution at 70 parts per billion. In 2020,
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`the EPA duly reassessed the Ozone NAAQS and, after careful review of the most
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`recent available scientific and technical information, consultation with its
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`independent advisors, and consideration of over 50,000 comments, determined that
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`the 2015 standards appropriately protected public health and welfare. Accordingly,
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`2
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 3 of 12
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`in its Ozone NAAQS Decision the EPA retained the 2015 Ozone NAAQS without
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`revision. 85 Fed. Reg. at 87,256.
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`Approximately three weeks later, on January 19, 2021, the State of New York
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`along with sixteen other States and one municipality sought review of the Ozone
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`NAAQS Decision. Thereafter, this Court issued an order setting certain case-
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`management deadlines, Order, Doc. No. 1881731, and later consolidated this case
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`with a similar case brought by the American Academy of Pediatrics and several other
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`organizations, Doc. No. 1887219. On February 17, 2021, the EPA filed an
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`unopposed motion to hold these consolidated cases in abeyance for 90 days. Doc.
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`No. 1885865.
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`As justification for that abeyance motion, the EPA cited an executive order by
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`then newly-elected President Biden directing review of certain federal agency
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`actions related to the environment taken during the Trump administration. Exec.
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`Order No. 13990; 86 Fed. Reg. 7037 (Jan. 20, 2021). That executive order identified
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`a non-exclusive list of federal agency actions for agency heads to review, including
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`the EPA’s Ozone NAAQS Decision.
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`The State Intervenors filed a timely motion to intervene in these proceedings,
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`arguing that they have a direct and substantial interest in this action warranting
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`intervention under Fed. R. App. Proc. 15(d), that the liberal intervention policies
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`underlying Fed. R. Civ. P. 24 support granting intervention as of right, and that they
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`3
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 4 of 12
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`would be entitled to permissive intervention under relevant case law. Doc. No.
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`1886099. The United States Chamber of Commerce, the American Forest & Paper
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`Association, the American Petroleum Institute, the American Wood Council, and
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`the American Chemistry Council also moved for leave to intervene (the “Industry
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`Intervenors”). Doc. No. 1886030.
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`On February 22, 2021, before any party responded to the intervention
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`motions, the Court issued an order granting the EPA’s motion to hold these
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`consolidated cases in abeyance and directing the parties to file motions to govern
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`further proceedings no later than May 21, 2021. Doc. No. 1885866. In response to
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`two additional EPA motions to extend the deadline for filing motions to govern
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`further proceedings, this Court extended the filing deadline two additional times. By
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`order dated September 21, 2021, this Court granted the intervention motions of the
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`Sate Intervenors and the Industry Intervenors. The Court’s most recent order, dated
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`September 27, 2021, requires parties to file motions to govern further proceedings
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`by October 29, 2021.
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`Counsel for the State Intervenors have conferred with known counsel for the
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`parties. As of the date of this filing: (1) State Petitioners in 21-1028 have advised
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`that they oppose the relief requested by State Intervenors in this motion to govern
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`further proceedings, which asks this Court to place this case back on track for
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`briefing on the merits; (2) Petitioner Center for Biological Diversity has advised that
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`4
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 5 of 12
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`it supports setting a briefing schedule for resolving the issue of EPA’s compliance
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`with Section 7 of the Endangered Species Act, but takes no position at this time as
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`to setting a briefing schedule for any other issues; (3) Respondents EPA, et al. have
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`advised that they oppose the relief requested in this motion to govern; (4) Industry
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`Intervenors have advised that they take no position with regard to this motion to
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`govern; and (5) Environmental Petitioners have advised that they oppose the relief
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`requested in this motion to govern.
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`ARGUMENT
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`For five reasons, the State Intervenors ask this Court to place this case back
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`on track for briefing on the merits without further delay.
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`First, all parties and potential parties are now in place, and the issue of
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`whether the EPA’s Ozone NAAQS Decision is legally sustainable is fully ripe for
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`review. See N.Y. State Ophthalmological Soc’y v. Bowen, 854 F.2d 1379, 1386
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`(D.C. Cir. 1988) (“A controversy is ripe if further administrative process will not aid
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`in the development of facts needed by the court to decide the question it is asked to
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`consider.”). Although the possible filing of additional petitions to review the Ozone
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`NAAQS Decision was cited by the EPA in support of its original unopposed motion
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`for abeyance, the time for filing such petitions has elapsed. Accordingly, any
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`additional petitions would be untimely. Furthermore, the deadline for filing
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`intervention motions has also passed. Moreover, no new facts are required to aid the
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`5
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 6 of 12
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`court in deciding the sole issue in this case: whether the Ozone NAAQS Decision
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`was lawfully made by the EPA. And the issue of whether the EPA can lawfully
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`rescind or revise the Ozone NAAQS Decision is not before this Court.
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`Second, the parties will not be injured if the current litigation continues while
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`the EPA reconsiders the Ozone NAAQS Decision. This Court has already afforded
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`the EPA the courtesy of holding this case in abeyance for well over 180 days in order
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`to allow the new administration to reconsider the Ozone NAAQS Decision. If the
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`EPA believes that it has the authority to review the Ozone NAAQS Decision, it may
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`seek to initiate that review, if it so chooses, independent of this Court’s resolution of
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`the instant case. If this Court upholds the Decision, the EPA can still pursue
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`whatever administrative review processes are available under law to revise it. And
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`the EPA’s use of those processes would be substantially aided by guidance from this
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`Court as to the scope of the EPA’s obligations under the Clean Air Act.
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`Third, the State Intervenors face serious potential injuries if the stay continues.
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`See Nken v. Holder, 556 U.S. 418, 434 (2009) (noting that a court ruling on a motion
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`to stay should consider whether the stay “will substantially injure the other parties
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`interested in the proceeding; and . . . where the public interest lies”) (citation
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`omitted).
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`Under the Clean Air Act, each of the State Intervenors has the “primary
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`responsibility for assuring air quality within” its borders “by submitting an
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`6
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 7 of 12
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`implementation plan” that “specif[ies] the manner in which primary and secondary
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`ambient air quality standards will be achieved and maintained within” its borders.
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`42 U.S.C. § 7407(a); see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 470 (2001).
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`And if the States do not submit acceptable plans to the EPA within three years, they
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`risk the imposition of federal implementation plans—which would deprive the State
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`Intervenors of control over how Ozone NAAQs are implemented in their sovereign
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`territory. See 42 U.S.C. § 7410(a), (c). But as long as the Ozone NAAQS Decision
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`remains subject to challenge, the State Intervenors will not have clear guidance about
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`what specific actions, if any, are appropriate with to ensure that their state
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`implementation plans achieve and maintain the Ozone NAAQS. Knowing which
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`specific federal mandates are required is essential to the sound operation of state
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`government to ensure the type of “cooperative federalism” envisioned by Congress
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`in the Clean Air Act. Del. Dep’t. of Nat. Res. & Envtl. Control v. EPA, 895 F.3d 90,
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`102 (D.C. Cir. 2018) (citation omitted). The uncertainty caused by this litigation
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`thus poses serious injuries to the States, who must continually ensure that they
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`provide for the health, safety, and economic well-being of their residents. These
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`potential injuries by the State Intervenors thus weigh in favor of this Court rejecting
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`efforts to keep this case in abeyance. See Nken, 556 U.S. at 434.
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`Fourth, the EPA cannot keep this case in abeyance forever while it reviews
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`the Ozone NAAQS Decision. Cf. Am. Petroleum Inst. v. EPA, 683 F.3d 382, 388
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`7
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 8 of 12
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`(D.C. Cir. 2012) (noting that an agency cannot “stave off judicial review of a
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`challenged rule simply by initiating a new proposed rulemaking” because that would
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`mean “a savvy agency could perpetually dodge review”). The EPA could
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`periodically continue to ask for delays (as it has several times already) which could
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`last for years while it determines the extent to which it wishes to revise the Ozone
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`NAAQS standard, thereby indefinitely leaving open the question of whether the
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`Ozone NAAQS Decision is a valid exercise of agency authority.
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`Fifth, “where a movant seeks relief that would delay court proceedings by
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`other litigants he must make a strong showing of necessity because the relief would
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`severely affect the rights of others.” Commodity Futures Trading Comm’n v.
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`Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983). Here, there
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`are no facts establishing a “strong necessity” for further delay.
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`CONCLUSION
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`For the foregoing reasons, the State Intervenors ask this Court:
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`1.)
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`not to extend beyond October 29, 2021, the Order granting the motion to
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`hold in abeyance; and;
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`2.)
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`to issue a briefing and scheduling order moving this case forward.
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`8
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 9 of 12
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`DATED: October 29, 2021
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`LESLIE RUTLEDGE
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`Attorney General of Arkansas
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`/s/Nicholas J. Bronni
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`NICHOLAS J. BRONNI
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`Arkansas Solicitor General
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`VINCENT M. WAGNER
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`Deputy Solicitor General
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`DYLAN L. JACOBS
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`Assistant Solicitor General
`Office of the Attorney General
`323 Center St., Suite 200
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`Little Rock, AR 72201
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`Tel.: (501) 682-2007
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`nicholas.bronni@arkansas.gov
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`JEFF LANDRY
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`Attorney General of Louisiana
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`/s/Elizabeth B. Murrill
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`ELIZABETH B. MURRILL
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`Solicitor General
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`Office of the Attorney General
`Louisiana Department of Justice
`1885 N. Third St.
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`Baton Rouge, LA 70804
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`Tel.: (225) 326-6085
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`murrille@ag.louisiana.gov
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`LYNN FITCH
`Attorney General of Mississippi
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`/s/Justin L. Matheny
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`JUSTIN L. MATHENY
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`Deputy Solicitor General
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`State of Mississippi
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`9
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`Respectfully submitted,
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`KEN PAXTON
`Attorney General of Texas
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`BRENT WEBSTER
`First Assistant Attorney General
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`/s/Judd E. Stone II
`JUDD E. STONE II
`Solicitor General
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`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
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`/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
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`AUSTIN KUNDSEN
`Attorney General of Montana
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`/s/David M.S. Dewhirst
`DAVID M.S. DEWHIRST
`Solicitor General
`Office of the Attorney General
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 10 of 12
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`215 North Sanders
`P.O. Box 201401
`Helena, MT 59620-4145
`david.dewhirst@mt.gov
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`Office of the Attorney General
`P.O. Box 220
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`Jackson, MS 39205
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`Tel.: (601) 359-3680
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`justin.matheny@ago.ms.gov
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`ERIC S. SCHMITT
`Attorney General of Missouri
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`/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
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`10
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 11 of 12
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to Federal Rule of Appellate Procedure 27(d)(2)(A) and 32(f) and
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`(g), I hereby certify that the foregoing complies with the type-volume limitation
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`because it contains 1,624 words, excluding exempted portions, according to the
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`count of Microsoft Word.
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`/s/Theodore Hadzi-Antich
`THEODORE HADZI-ANTICH
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`11
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`USCA Case #21-1028 Document #1920191 Filed: 10/29/2021 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`I hereby certify that the foregoing document was electronically filed on
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`October 29, 2021, with the Clerk of the Court using the CM/ECF system, which will
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`send a notification to all registered users.
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`/s/Theodore Hadzi-Antich
`THEODORE HADZI-ANTICH
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`12
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