123 F.4th 447
6th Cir.2024Background
- The case arises after the Environmental Protection Agency (EPA) revised the air-quality standard for ozone, requiring states to update their implementation plans under the Clean Air Act's "Good Neighbor Provision."
- EPA issued 2018 memoranda giving states guidance on how to model pollution and set thresholds for emissions that cross state lines, which Kentucky followed in its plan.
- EPA failed to timely act on Kentucky's plan, missing its 12-month deadline by over two years, then based its disapproval on different modeling and lower pollution thresholds than the guidance it previously provided.
- EPA bundled Kentucky’s plan disapproval with 20 other state plans and moved to transfer all challenges to the D.C. Circuit, arguing its action was “nationally applicable."
- Kentucky challenged the EPA’s actions in the Sixth Circuit, arguing the disapproval was arbitrary, capricious, and inconsistent with prior guidance, and that review belonged in the regional circuit, not the D.C. Circuit.
Issues
| Issue | Plaintiff's Argument (Kentucky) | Defendant's Argument (EPA) | Held |
|---|---|---|---|
| Proper Venue: Where must this challenge be filed? | Action was locally applicable, specific to Kentucky, and belongs in the Sixth Circuit. | Action was nationally applicable (one rule for 21 states), so D.C. Circuit review is proper. | Sixth Circuit: EPA’s denial was locally applicable to Kentucky—challenge properly before this court. |
| Was EPA’s disapproval arbitrary and capricious under the APA? | EPA changed guidance post hoc, creating surprise and failing to account for Kentucky’s reliance on earlier guidance. | EPA could update its methods and thresholds, and Kentucky didn’t provide sufficient justification for approach. | Disapproval was arbitrary; EPA failed to explain deviation from its own guidance and ignored Kentucky’s reliance interests. |
| Should the EPA’s disapproval be vacated or just remanded to the agency? | Disapproval should be vacated due to fundamental error. | Remand without vacatur is appropriate to avoid disruption. | Vacatur is required; EPA’s error was fundamental and disruptive effects are minimal. |
| Does untimely EPA action (using post-deadline data) violate the APA? | EPA’s untimely action and reliance on post-deadline data prejudiced Kentucky and violated procedural rights. | Statutory deadline is only procedural; delay does not invalidate action if outcome is lawful. | (Concurrence: EPA’s delay and use of new data likely violated the APA, but resolved case on arbitrariness grounds.) |
Key Cases Cited
- Ohio v. EPA, 603 U.S. 279 (states’ implementation plans must be judged only by statutory criteria, respecting state discretion)
- EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (upholds EPA’s two-step approach to the Good Neighbor Provision under Chevron)
- FCC v. Prometheus Radio Project, 592 U.S. 414 (sets standard for arbitrary and capricious APA review)
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency changes in policy must be adequately explained under the APA)
- Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (agencies must explain abrupt departures from prior guidance or practice)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (agency must acknowledge and justify policy changes)