MURRAY ENERGY CORPORATION v. EPA

No. 15-1385. Consolidated with Nos. 15-1392, 15-1490, 15-1491, 15-1494.

936 F.3d 597 (2019)

MURRAY ENERGY CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Lung Association, et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided August 23, 2019.


Attorney(s) appearing for the Case

Seth L. Johnson , Washington, DC, argued the cause for Public Health and Environmental Petitioners. With him on the briefs were Joshua Stebbins , Joshua Berman , David S. Baron , Washington, DC, and Paul Cort.

Dominic E. Draye , Deputy Solicitor General, Office of the Attorney General for the State of Arizona, argued the cause for State Petitioners. With him on the briefs were Mark Brnovich , Attorney General, John R. Lopez, IV , Solicitor General, Keith Miller , Associate Solicitor, Joshua L. Kaul , Attorney General, Office of the Attorney General for the State of Wisconsin, Misha Tseytlin , Solicitor General, Daniel P. Lennington , Assistant Attorney General, Leslie C. Rutledge , Attorney General, Office of the Attorney General for the State of Arkansas, Lee Rudofsky , Solicitor General, Jamie L. Ewing , Assistant Attorney General, Jeff Landry , Attorney General, Office of the Attorney General for the State of Louisiana, Steven B. ABeaux@ Jones , Assistant Attorney General, Wayne Stenehjem , Attorney General, Office of the Attorney General for the State of North Dakota, Margaret I. Olson , Assistant Attorney General, Peter S. Glaser , Carroll W. AMack@ McGuffey , Andy Beshear , Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Joseph A. Newberg, II , Assistant Attorney General, Lara Katz , Assistant Attorney General, Office of the Attorney General for the State of New Mexico, Ken Paxton , Attorney General, Office of the Attorney General for the State of Texas, Priscilla M. Hubenak , Chief, Craig J. Pritzlaff , Assistant Attorney General, E. Scott Pruitt , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Oklahoma, P. Clayton Eubanks , Deputy Solicitor General, and Sean Reyes , Attorney General, Office of the State of Utah. Mithun Mansinghani , Attorney, Office of the Attorney General for the State of Oklahoma, Lisa M. Mitchell , Assistant Attorney General, Office of the Attorney General for the State of Texas, Oramel H. Skinner, III , Solicitor, Office of the Attorney General for the State of Arizona, Sarah Adkins and Samuel R. Flynn , Assistant Attorneys General, and Gregory T. Dutton , Counsel, Office of the Attorney General for the Commonwealth of Kentucky, Steven C. Kilpatrick , Assistant Attorney General, Office of the Attorney General for the State of Wisconsin, Elizabeth B. Murrill and Harry J. Vorhoff , Assistant Attorneys General, Office of the Attorney General for the State of Louisiana, entered appearances.

James R. Bieke , Washington, DC, argued the cause for Industry Petitioners. With him on the briefs were Roger R. Martella , Joel F. Visser , Scott C. Oostdyk , E. Duncan Getchell, Jr. , Michael H. Brady , Thomas A. Lorenzen , Robert J. Meyers , Linda E. Kelly , Quentin Riegel , Leland P. Frost , Michael B. Schon , Elizabeth L. Horner , Lucinda Minton Langworthy , Aaron M. Flynn , Steven P. Lehotsky , Sheldon B. Gilbert , Stacy Linden , and Richard S. Moskowitz , Peter C. Tolsdorf entered an appearance.

Hope M. Babcock , Washington, DC, and Sarah J. Fox were on the brief for amici curiae American Thoracic Society, et al. in support of petitioners Sierra Club, et al.

Thomas J. Ward , Washington, DC, was on the brief for amicus curiae The National Association of Home Builders in support of Industry and State Petitioners.

Justin Heminger , Washington, DC, and Simi Bhat , Trial Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were John C. Cruden , Assistant Attorney General at the time the brief was filed, and David Orlin , Steven Silverman , and Brian Doster , Attorneys, U.S. Environmental Protection Agency. Jon M. Lipshultz , Attorney, U.S. Department of Justice, entered an appearance.

James R. Bieke , Washington, DC, argued the cause for Industry Respondent-Intervenors. With him on the brief were Roger R. Martella , Joel F. Visser , Lucinda Minton Langworthy , Aaron M. Flynn , Thomas A. Lorenzen , Robert J. Meyers , Stacy Linden , Richard S. Moskowitz , Steven P. Lehotsky , Sheldon B. Gilbert , Linda E. Kelly , Quentin Riegel , Leland P. Frost , Michael B. Schon , Elizabeth Horner , and Leslie A. Hulse , Peter C. Tolsdorf entered an appearance.

Seth L. Johnson , Washington, DC, argued the cause for Health and Environmental Respondent-Intervenors. With him on the brief was David S. Baron . Joshua A. Berman and Joshua R. Stebbins entered appearances.

Jonathan Weiner , Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for State Amici in support of respondent. With him on the brief were Kamala D. Harris , Attorney General at the time the brief was filed, Robert W. Byrne , Senior Assistant Attorney General, and Gavin G. McCabe , Supervising Deputy Attorney General. Melinda Pilling , Attorney, entered an appearance.

Richard L. Revesz , Denise A. Grab , Jack Lienke , Michael A. Livermore , and Jason A. Schwartz were on the brief for amicus curiae The Institute for Policy Integrity at New York University School of Law in support of respondent.

Before: Griffith, Pillard and Wilkins, Circuit Judges.


In this opinion, we consider various challenges to the Environmental Protection Agency's 2015 revisions to the primary and secondary national ambient air quality standards for ozone. For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration, and grandfathering...

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