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STATE v. E.P.A.

No. 19-1231.

964 F.3d 1214 (2020)

STATE of New York, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, in His Official Capacity as Administrator of the U.S. Environmental Protection Agency, Respondents. Adirondack Council, et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided July 14, 2020.

Attorney(s) appearing for the Case

Steven C. Wu , Deputy Solicitor General, Office of the Attorney General for the State of New York, argued the cause for petitioners. With him on the briefs were Letitia James , Attorney General for the State of New York, Barbara D. Underwood , Solicitor General, Morgan A. Costello and Claiborne E. Walthall , Assistant Attorneys General, Gurbir S. Grewal , Attorney General for the State of New Jersey, Lisa Morelli , Deputy Attorney General, and Christopher G. King , Senior Counsel, New York City Law Department.

Joshua A. Berman argued the cause for petitioners-intervenors Sierra Club, et al. With him on the briefs were Sean H. Donahue , Washington, DC, Graham G. McCahan , Vickie L. Patton , Washington, DC, and Liana James .

Samara M. Spence , Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Jonathan Brightbill , Principal Deputy Assistant Attorney General, and Abirami Vijayan and Stephanie L. Hogan , Counsel, U.S. Environmental Protection Agency. Sarah A. Buckley , Attorney, U.S. Department of Justice, entered an appearance.

David M. Flannery , Kathy G. Beckett , Edward L. Kropp , Charleston, WV, Samuel B. Boxerman , Samina M. Bharmal , David M. Friedland , Washington, DC, Laura K. McAfee , Baltimore, MD, E. Carter Chandler Clements , Norman W. Fichthorn , Steven P. Lehotsky , Washington, DC, and Michael B. Schon were on the brief for respondents-intervenors Midwest Ozone Group, et al. Laura M. Goldfarb , Amy M. Smith and Peter Tolsdorf entered appearances.

Joseph A. Newberg II and Mary Ann Lee were on the brief for amicus curiae Commonwealth of Kentucky, Energy and Environment Cabinet in support of respondents.

Concurring opinion filed by Circuit Judge Griffith.

Air pollutants do not stay still. Nor do they respect state borders. That has created a "complex problem"—namely that "air pollution emitted in one State[ ] [can] caus[e] harm in other States." EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 495, 134 S.Ct. 1584, 188 L...

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