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State v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

April 23, 2019

State of New York, et al., Petitioners
v.
Environmental Protection Agency and Andrew Wheeler, in his Official Capacity as Acting Administrator of the U.S. Environmental Protection Agency, Respondents Commonwealth of Kentucky Energy and Environment Cabinet, et al., Intervenors

          Argued November 28, 2018

          On Petition for Review of Final Action of the United States Environmental Protection Agency

          David S. Frankel, Assistant Solicitor General, Office of the Attorney General for the State of New York, argued the cause for petitioners. With him on the briefs were Barbara D. Underwood, Attorney General, Steven C. Wu, Deputy Solicitor General, Morgan A. Costello and Claiborne E. Walthall, Assistant Attorneys General, Matthew P. Denn, Attorney General, Office of the Attorney General for the State of Delaware, Valerie S. Edge, Deputy Attorney General, Maura

          Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Carol A. Iancu, Assistant Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Jill Lacedonia, Assistant Attorneys General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Michael F. Strande, Deputy Attorney General, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Joshua Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Michael J. Fischer, Chief Deputy Attorney General, Kristen M. Furlan, Assistant Director, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, and Nicholas F. Persampieri, Assistant Attorney General. Steven Santarsiero, Chief Deputy Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, entered an appearance.

          Ariel Solaski, Jon A. Mueller, and Joshua A. Berman were on the brief for amicus curiae Chesapeake Bay Foundation, Inc. and Sierra Club in support of petitioners' request for vacature.

          Sonya Shea, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, Jonathan D. Brightbill, Deputy Assistant Attorney General, and Stephanie L. Hogan, Attorney, U.S. Environmental Protection Agency.

          Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, Eric E. Murphy, State Solicitor, Samuel C. Peterson, Deputy Solicitor, Aaron S. Farmer, Assistant Attorney General, Bill Schuette, Attorney General, Office of the Attorney General for the State of Michigan, Aaron D. Lindstrom, Solicitor General, Jacquelyn A. Quarles, Deputy General Counsel, Kentucky Energy and Environment Cabinet, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General for the State of Indiana, Thomas M. Fisher, Solicitor General, Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, Lindsay S. See, Solicitor General, and Paul A. Martin, Chief Deputy Attorney General, were on the brief for intervenors States of Ohio, et al. in support of respondent.

          Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Marc Bernstein, Special Deputy Attorney General, and Asher P. Spiller, Assistant Attorney General, were on the brief for respondent-intervenor the State of North Carolina.

          Herbery H. Slatery, III, Attorney General, Office of the Attorney General and Reporter for the State of Tennessee, and J. Peter Murrey, Assistant Attorney General, were on the brief for amicus curiae the State of Tennessee in support of respondents.

          Norman W. Fichthorn, E. Carter Chandler Clements, and Andrew D. Knudsen were on the brief for respondent-intervenor Utility Air Regulatory Group.

          Before: Wilkins and Katsas, Circuit Judges, and Randolph, Senior Circuit Judge.

          OPINION

          RANDOLPH, SENIOR CIRCUIT JUDGE

         In the Clean Air Act Amendments of 1990, Congress established the "Northeast Ozone Transport Region." The Region consists of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the District of Columbia, and a portion of Virginia. 42 U.S.C. § 7511c(a).

         Years later several States in the Region requested the Environmental Protection Agency to expand the Region to include the upwind States of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remaining ...


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