State of Oklahoma, et al. v. Environmental Protection Agency, et al., Brief of U.S. Senators Mike Lee, Cynthia Lummis, Roger Marshall, and Ted Budd as Amici Curiae in Support of Petitioners

Abstract

There are a lot of hard Clean Air Act (CAA) cases. This is not one of them. The CAA’s venue provision states, in essence, that a nationwide action should go to the D.C. Circuit, but a regional action should go to the region’s court of appeals. And all agree that the paradigmatic example of a regional action is the EPA’s approval or denial of a state implementation plan (SIP). Unsurprisingly, every court of appeals had uniformly held that judicial review over SIP decisions must go to the applicable regional circuit court—not the D.C. Circuit.

That is until the decision below. Here, the Tenth Circuit held that the SIP decisions at issue must go to the D.C. Circuit because the EPA chose to bundle its announcement of the proposed region-by-region actions within a single Federal Register notice—thus making them superficially “national.” That is so even though the legal review—a fact-heavy inquiry requiring individual, region-by-region analysis of each SIP decision—remains the same as if the EPA had announced its decisions one-by-one.

The Tenth Circuit’s decision is egregiously wrong. Text, purpose, and precedent all confirm what
common sense also would compel: The CAA’s venue provision turns on substance, not form; and it does not allow the EPA to pick its chosen forum based on how the agency chooses to package its Federal Register notices.

This Court’s review is warranted. The Tenth Circuit’s decision has created a circuit split that promises serious and immediate repercussions, both in practice and for federalism. Until this Court intervenes, the States within the Tenth Circuit will now need to schlep to D.C. to litigate SIP decisions in the EPA’s backyard, whereas almost all other States will be able to litigate within regional circuits composed of judges with more localized expertise. This Court should put an end to that disordered system and restore the venue provision that Congress wrote.

Keywords: Separation of Powers, Federalism, Environmental Law, Administrative Law, Judicial Review

JEL Classification: H1, H11, H77, K2, K32, K41