93 F.4th 1262
10th Cir.2024Background
- The EPA revised the National Ambient Air Quality Standards (NAAQS) for ozone in 2015, requiring states to submit updated state implementation plans (SIPs) to address their contributions to interstate air pollution (the "good-neighbor" provision).
- In February 2023, the EPA issued a final rule disapproving SIPs submitted by 21 states, finding they failed to meet good-neighbor obligations for ozone pollution.
- Several states, including Oklahoma and Utah (joined by industry groups), challenged the EPA’s SIP disapprovals in the Tenth Circuit.
- The EPA moved to transfer or dismiss the petitions, arguing that under 42 U.S.C. § 7607(b)(1), the D.C. Circuit is the exclusive venue for judicial review of "nationally applicable" EPA actions.
- The Tenth Circuit stayed the SIP disapprovals and considered the venue issue without reaching the merits of the underlying EPA rule.
- Other regional circuits have split on this issue, with some keeping cases and others favoring transfer to the D.C. Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA’s disapproval of SIPs is a "nationally applicable" action requiring D.C. Circuit review | Each SIP disapproval is a separate, locally/regionally applicable action and should be reviewed regionally | The final rule is nationally applicable as it disapproves 21 SIPs via uniform standards; thus, only D.C. Circuit review is proper | The action is nationally applicable; transfer to D.C. Circuit required |
| Whether the face of the agency action or the effect on petitioners determines venue | Venue determination should consider the specific SIP challenged (localized effect) | Venue is determined solely by the nature of the final agency action, not the petitioner’s framing or effect | Venue depends on the face of the final rule, not the particularized grievance |
| Whether EPA’s process or statutory authority in SIP disapprovals changes the venue analysis | EPA’s statutory review of SIPs is more state-focused, differing from other actions deemed nationally applicable | The type of EPA authority is irrelevant; venue turns on the breadth of the final agency action | No material distinction in statutory process changes outcome; focus is on national scope of the action |
| Impact of conflicting appellate circuit decisions about proper venue | Regional circuit precedent allows for regional review of discrete SIP disapprovals | Previous Tenth Circuit and other circuit precedent support action-focused, not petition-focused, approach | Tenth Circuit declines to follow contrary circuits; follows its own precedent for action-focused analysis |
Key Cases Cited
- EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (interpreted "good neighbor" provision for interstate pollution control)
- West Virginia v. EPA, 597 U.S. 697 (discussed EPA’s authority under the Clean Air Act)
- Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (described NAAQS and SIP framework)
- ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194 (Tenth Circuit precedent holding that the nature of the agency action controls venue for Clean Air Act cases)
- S. Ill. Power Coop. v. EPA, 863 F.3d 666 (Seventh Circuit emphasizing nationwide applicability analysis focuses on the face of the agency action)
- Sierra Club v. EPA, 926 F.3d 844 (D.C. Circuit rejecting petition-focused venue analysis for Clean Air Act review)