State of California v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2022 Decided June 30, 2023
No. 21-1018
S TATE OF C ALIFORNIA, ET AL.,
P ETITIONERS
v.
ENVIRONMENTAL P ROTECTION A GENCY,
R ESPONDENT
AEROSPACE INDUSTRIES ASSOCIATION OF AMERICA, INC . AND
THE B OEING C OMPANY ,
INTERVENORS
Consolidated with 21-1021
On Petitions for Review of an Order
of the Environmental Protection Agency
Theodore A.B. McCombs, Deputy Attorney General,
Office of the Attorney General for the State of California,
argued the cause for petitioners. With him on the briefs for
State Petitioners were Rob Bonta, Attorney General, Robert W.
Byrne, Senior Assistant Attorney General, David A. Zonana
and Timothy Sullivan, Supervising Deputy Attorneys General,

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William Tong, Attorney General, Office of the Attorney
General for the State of Connecticut, William E. Dornbos,
Assistant Attorney General, Kwame Raoul, Attorney General,
Office of the Attorney General for the State of Illinois, Gerald
T. Karr, Assistant Attorney General, at the time the brief was
filed, Brian E. Frosh, Attorney General, Office of the Attorney
General for the State of Maryland, Joshua M. Segal, Special
Assistant Attorney General, Keith Ellison, Attorney General,
Office of the Attorney General for the State of Minnesota,
Peter N. Surdo, Special Assistant Attorney General, Letitia
James, Attorney General, Office of the Attorney General for
the State of New York, Matthew Eisenson and Gavin G.
McCabe, Assistant Attorneys General, Judith N. Vale,
Assistant Deputy Solicitor General, Maura Healey, Attorney
General, Office of the Attorney General for the
Commonwealth of Massachusetts, Christophe Courchesne and
Carol Iancu, Assistant Attorneys General, Matthew Platkin,
Acting Attorney General, Office of the Attorney General for
the State of New Jersey, Ellen F. Rosenblum, Attorney
General, Office of the Attorney General for the State of
Oregon, Paul Garrahan, Attorney-in-Charge, Steve Novick,
Special Assistant Attorney General, Joshua D. Shapiro,
Attorney General, Office of the Attorney General for the
Commonwealth of Pennsylvania, Ann R. Johnston, Senior
Deputy Attorney General, Robert W. Ferguson, Attorney
General, Office of the Attorney General for the State of
Washington, Christopher H. Reitz, Assistant Attorney General,
Joshua R. Diamond, Acting Attorney General, Office of the
Attorney General for the State of Vermont, at the time the brief
was filed, Nicholas F. Persampieri, Assistant Attorney
General, Karl A. Racine, Attorney General, Office of the
Attorney General for the District of Columbia, and Caroline S.
Van Zile, Solicitor General. Elizabeth Dubats, Assistant
Attorney General, Office of the Attorney General for the State
of Illinois, and Julia Jonas-Day and Turner Helen Smith,

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Assistant Attorneys General, Office of the Attorney General
for the Commonwealth of Massachusetts, entered appearances.
Sarah H. Burt, J. Martin Wagner, Elizabeth A. Jones, Scott
Hochberg, and Vera Pardee were on the briefs for
Environmental Petitioners.
Andrew L. Strom and Bertolain Elysee were on the brief
for amicus curiae Service Employees International Union,
Local 32BJ in support of petitioners.
Steven J. Castleman was on the brief for amicus curiae
Thomas C. Jorling in support of petitioners.
Deborah A. Sivas was on the brief for amicus curiae
International Council On Clean Transportation in support of
petitioners.
Chloe H. Kolman, Senior Attorney, U.S. Department of
Justice, argued the cause for respondent. With her on the brief
were Todd Kim, Assistant Attorney General, and Mike Thrift,
Attorney, U.S. Environmental Protection Agency.
Amanda Shafer Berman argued the cause for intervenor-
respondents. With her on the brief were Ronald J. Tenpas,
Corinne Snow, and Thomas A. Lorenzen. Robert J. Meyers
entered an appearance.
Thomas Richichi, David Friedland, and Jennifer J. Leech
were on the brief for amicus curiae Airlines for America in
support of respondent.
Before: R AO and C HILDS , Circuit Judges, and R OGERS ,
Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge R AO .
R AO , Circuit Judge: After finding that certain greenhouse
gases endanger public health, the Environmental Protection
Agency (“EPA”) regulated the emission of these pollutants
from aircraft engines. The Aircraft Rule aligns domestic
aircraft emissions standards with those recently promulgated
by the International Civil Aviation Organization (“ICAO”).
Petitioners challenge the Aircraft Rule, arguing the EPA
should have promulgated more stringent standards than those
set by ICAO. They contend the agency acted unlawfully as well
as arbitrarily and capriciously by aligning domestic standards
with ICAO’s technology-following standards rather than
establishing technology-forcing standards. We hold that the
Aircraft Rule is within the EPA’s authority under section 231
of the Clean Air Act and that the agency reasonably explained
its decision to harmonize domestic regulation with the ICAO
standards. Accordingly, we deny the petitions for review.
I.
A.
Section 231 of the Clean Air Act tasks the EPA with
regulating the emission of air pollutants from aircraft engines
and provides:
The Administrator shall, from time to time,
issue proposed emission standards applicable to
the emission of any air pollutant from any class
or classes of aircraft engines which in his
judgment causes, or contributes to, air pollution
which may reasonably be anticipated to
endanger public health or welfare.

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See Clean Air Act Amendments of 1970, Pub. L. No. 91-604,
§ 11(a)(1), 84 Stat. 1676, 1703–04, as amended by Clean Air
Act Amendments of 1977, Pub. L. No. 95-95, tit. IV, § 401(f),
91 Stat. 685, 791 (codified at 42 U.S.C. § 7571(a)(2)(A)).
The EPA implements this statutory mandate in a two-step
process. First it makes an endangerment finding, which is a
determination that a specific air pollutant emitted by aircraft
engines “causes, or contributes to, air pollution which may
reasonably be anticipated to endanger public health or
welfare.” 42 U.S.C. § 7571(a)(2)(A). Having made such a
finding, the EPA promulgates emissions standards to regulate
the pollutant. Id. The Federal Aviation Administration
(“FAA”) then applies the EPA’s standards to certificates of
airworthiness, which authorize aircraft for flight. See id.
§ 7572.
While the EPA exercises domestic regulatory authority
over air pollution from aircraft engines, certificates of
airworthiness must also comply with standards set by ICAO, a
specialized agency of the United Nations. Pursuant to the
Chicago Convention on International Civil Aviation, of which
the United States is a party, ICAO is tasked with setting
international standards governing air travel. See Convention on
International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15
U.N.T.S. 295, 320–22. These standards set a floor, but not a
ceiling, on how strictly air pollution may be regulated. All
parties to the Chicago Convention must recognize any
certificate of airworthiness issued by another party, provided
the requirements governing such certification are “equal to or
above the minimum standards” set by ICAO. 15 U.N.T.S. at
318. Member states may also set more rigorous standards,
provided they give immediate notice to ICAO. Id. at 322.
Because of the interrelationship of the statutory and treaty
obligations, as a practical matter, the EPA and FAA must

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coordinate regulation of aircraft pollutants to meet both the
requirements of the Clean Air Act and the international
standards set by ICAO.
ICAO began regulating aircraft emissions in 1982, and
since that time the EPA has consistently used its section 231
authority to align American regulations with ICAO standards.1
B.
In 2016, the EPA issued an endangerment finding for the
emissions of six greenhouse gases from aircraft over a certain
size. See Finding That Greenhouse Gas Emissions From
Aircraft Cause or Contribute to Air Pollution That May
Reasonably Be Anticipated To Endanger Public Health and
Welfare (“Endangerment Finding”), 81 Fed. Reg. 54,422,
54,423–24 (Aug. 15, 2016). The agency concluded elevated
concentrations of these substances were reasonably anticipated
to endanger the public health and welfare by contributing to
climate change. See id. at 54,451. Carbon dioxide accounts for
the vast majority of greenhouse gas emissions from aircraft. Id.
at 54,460. This endangerment finding triggered the EPA’s
obligation to promulgate standards under section 231.
Soon after the EPA issued its endangerment finding,
ICAO adopted an initial set of international standards to govern
carbon dioxide emissions from aircraft. See Control of Air
Pollution From Airplanes and Airplane Engines: GHG
Emission Standards and Test Procedures (“Aircraft Rule”), 86
Fed. Reg. 2,136, 2,142 (Jan. 11, 2021) (discussing the ICAO
1 See Control of Air Pollution From Aircraft and Aircraft Engines;
Emission Standards and Test Procedures, 47 Fed. Reg. 58,462,
58,467 (Dec. 30, 1982); 62 Fed. Reg. 25,356, 25,356 (May 8, 1997);
70 Fed. Reg. 69,664, 69,664 (Nov. 17, 2005); 77 Fed. Reg. 36,342,
36,342 (June 18, 2012); 87 Fed. Reg. 6,324, 6,324 (Feb. 3, 2022).

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standards). As with all previous ICAO emission standards, the
carbon dioxide standards are designed to be “technology
following,” meaning they “reflect[] the performance and
technology achieved by existing airplanes,” rather than the
performance that could be achieved by new or developing
technology. See id. at 2,137. Specifically, the standards require
newly manufactured aircraft to be relatively fuel efficient by
the standards of the current operational fleet, but not
necessarily more efficient than the existing fleet.
The EPA eventually promulgated the Aircraft Rule, which
regulated the emission of greenhouse gases from aircraft
engines under section 231 by aligning domestic standards with
ICAO standards. “In order to promote international
harmonization of aviation standards and to avoid placing U.S.
manufacturers at a competitive disadvantage,” the agency
determined it would “match the scope, stringency, and timing”
of ICAO’s carbon dioxide standards. Id. at 2,144.
Twelve states and the District of Columbia (“State
Petitioners”) and three nonprofit organizations
(“Environmental Petitioners”) petitioned for review. 42 U.S.C.
§ 7607(b)(1). We consolidated the petitions, which ask this
court to hold the Aircraft Rule unlawful and to direct the EPA
to issue new standards.
II.
Before turning to the merits, we must verify that we have
jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 88–89 (1998). A party lacks standing to file suit unless it
has suffered an “injury in fact” that is “fairly traceable to the
challenged action of the defendant” and may be “redressed by
a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992) (cleaned up). The Commonwealth of
Massachusetts meets this test under Supreme Court precedent.

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In Massachusetts v. EPA, the Court held Massachusetts
had standing to challenge the EPA’s denial of a petition
requesting the agency regulate greenhouse gas emissions from
motor vehicles. See 549 U.S. 497, 510–11 (2007). Applying
the three standing elements, the Court concluded that
Massachusetts had demonstrated a “particularized injury in its
capacity as a landowner” because it could lose property if
climate change caused the sea level to rise. Id. at 522. The
EPA’s “refusal to regulate” greenhouse gas emissions from
motor vehicles contributed to these injuries by at least
incrementally contributing to climate change, and the possible
injury to the Commonwealth from rising sea levels would be
“reduced to some extent if petitioners received the relief they
seek.” Id. at 523–26.
The facts here are nearly identical. Massachusetts asserts
it faces “the permanent or temporary loss of the
Commonwealth’s coastal property” due to sea level rise caused
by climate change—the exact injury the Court found sufficient
in Massachusetts v. EPA. Traceability and redressability are
also established on the same grounds, because Massachusetts
asserts that the failure of the EPA to impose more stringent
regulations on aircraft emissions contributes to climate change.
If Massachusetts had standing in Massachusetts v. EPA, then it
necessarily has standing here.
We need not inquire whether the other State Petitioners
have sufficiently adduced standing because under the one-
plaintiff rule, “[o]nly one of the petitioners needs to have
standing to permit us to consider the petition for review.” Id. at
518. The State and Environmental Petitioners press identical
arguments before this court and seek the same relief, so we
need not determine whether any of the environmental groups
would separately have standing to challenge the Aircraft Rule.
See State Petitioners’ Opening Br. 9 (incorporating

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Environmental Petitioners’ arguments by reference).
Massachusetts has standing, and we proceed to the merits.
III.
Petitioners first argue the Aircraft Rule was contrary to
law because the EPA failed to apply factors required by section
231 for the reduction of emissions. We find the Rule well
within the EPA’s legal authority because section 231 does not
mandate the consideration of any particular factors, let alone
the specific factors advanced by petitioners.
The operative language of section 231 is relatively simple.
Section 231(a)(2)(A) states that, after making an endangerment
finding for a given pollutant, the EPA “shall, from time to time,
issue proposed emission standards” for that pollutant. 42
U.S.C. § 7571(a)(2)(A). Section 231 does not specify the
substantive content of the standards, nor does it specify any
factors the agency must consider. As we have previously
observed, the “delegation of authority” in section 231 “is both
explicit and extraordinarily broad.”2 Nat’l Ass’n of Clean Air
Agencies v. EPA (“NACAA”), 489 F.3d 1221, 1229 (D.C. Cir.
2007).
In the Aircraft Rule, the EPA complied with these limited
requirements. First, the agency concluded that greenhouse
gases “cause[], or contribute[] to, air pollution which may
reasonably be anticipated to endanger public health or
welfare.” 42 U.S.C. § 7571(a)(2)(A); Endangerment Finding,
2 As petitioners do not argue section 231 violates the nondelegation
doctrine, the issue is not before us. Cf. Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 472 (2001) (explaining that Article I “permits
no delegation” of the legislative power vested in Congress and that
Congress must provide an “intelligible principle” when it “confers
decisionmaking authority upon agencies”).

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81 Fed. Reg. at 54,423–24. Having made this endangerment
finding, the EPA had to “issue proposed emission standards,”
a requirement it satisfied by promulgating the Aircraft Rule.3
42 U.S.C. § 7571(a)(2)(A).
Petitioners dispute this straightforward application of
section 231(a)(2)(A). They suggest that, read in context, the
EPA is required to consider the emission reductions that may
be achieved with feasible technology, even if such technology
is not currently in use. Specifically, petitioners rely on section
231(a)(1), which required the EPA to “commence a study” of
aircraft emissions within 90 days of December 31, 1970, and
determine “the technological feasibility of controlling such
emissions.” Id. § 7571(a)(1). Petitioners maintain the EPA
must consider “technological feasibility” as a discrete factor
when promulgating rules under section 231, an interpretation
they argue is confirmed by section 231(b)’s requirement that
the agency provide adequate lead time for the “development
and application” of any new technology. Id. § 7571(b). They
contend the EPA acted contrary to law by adopting standards
that reflect widely available technology rather than feasible
technology that would result in greater emissions reductions.
Petitioners’ interpretation does not comport with the plain
meaning of the Clean Air Act. Section 231(a)(1) required the
EPA to conduct a one-time study and investigation in 1971;
3 The EPA’s authority is cabined by only two other provisions. The
Administrator “shall not change the aircraft engine emission
standards if such change would significantly increase noise and
adversely affect safety.” 42 U.S.C. § 7571(a)(2)(B)(ii); see also id.
§ 7571(c) (permitting the President to disapprove a regulation if it
“would create a hazard to aircraft safety”). In addition, there are
restrictions on regulations that impose new technology. Id.
§ 7571(b). Petitioners do not argue the Aircraft Rule implicates these
limitations.

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nothing in the statute suggests the agency must adopt the same
approach on an ongoing basis.4 And section 231(b)
presupposes the EPA has discretion to issue regulations
requiring the “development and application” of new
technology, but it does not suggest the agency is required to do
so. In other provisions of the Clean Air Act, Congress has
explicitly required the EPA to consider enumerated factors or
to adopt a technology-forcing approach. See, e.g., 42 U.S.C.
§ 7412(d)(2) (mandating the EPA “require the maximum
degree of reduction” that is “achievable” in regulating
hazardous air pollutants); id. § 7521(a)(3)(A)(i) (requiring
EPA standards for motor vehicle emissions “reflect the greatest
degree of emission reduction achievable” through available
technology). In the context of aircraft emissions standards,
section 231(a)(2)(A) requires only that the EPA “shall issue”
standards, without specifying the way in which the agency
must do so.
For these reasons, we have previously held section 231
does not mandate any sort of technology-forcing approach. In
NACAA, we explained that it was consistent with the Clean Air
Act for the EPA to require the use of existing technology and
to align domestic regulations with the ICAO standards for
nitrous oxide emissions. See 489 F.3d at 1225; id. at 1230
(determining section 231 “conferred broad discretion to the
Administrator to weigh various factors in arriving at
4 In their opening brief, the Environmental Petitioners selectively
quoted section 231(a)(1) by omitting the requirement that the EPA
“commence” the study “[w]ithin 90 days after December 31, 1970.”
42 U.S.C. § 7571(a)(1). This misleading elision distorted the
statutory text in support of petitioners’ argument that the EPA has an
ongoing requirement to consider technological feasibility. We
remind litigants that they must faithfully represent governing law to
this court.

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appropriate standards”). The Aircraft Rule permissibly
implemented section 231 by aligning domestic regulations
with ICAO standards.
IV.
Petitioners also argue the Aircraft Rule was arbitrary and
capricious. See 5 U.S.C. § 706(2)(A). They advance three
reasons: (1) by aligning the domestic standards with the ICAO
standards, the EPA failed to account for the harms of climate
change; (2) the EPA failed to consider alternatives that would
reduce greenhouse gas emissions; and (3) the EPA failed to
sufficiently consider the effects of the Aircraft Rule on
minority and low-income populations and on federalism
interests, as required by executive order.
While petitioners may disagree with the EPA’s decision to
align domestic regulations with ICAO standards, they have not
established that the Aircraft Rule was arbitrary and capricious.
And given the agency’s conclusion about the importance of
harmonization with ICAO standards, there was no reason to
consider petitioners’ alternatives, which would have required
departure from those standards. Finally, we cannot review the
agency’s compliance with executive orders that are
unreviewable.
A.
Petitioners contend the EPA neglected to consider the
harms of climate change and thereby “entirely failed to
consider an important aspect of the problem.” Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). They suggest the Aircraft Rule unreasonably failed to
engage with the harms of climate change or the need to reduce
emissions, despite the EPA’s endangerment finding.
Petitioners maintain it was arbitrary and capricious for the

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agency to prioritize harmonization with international standards
over imposing more stringent domestic emissions standards.
We disagree because the EPA’s decision to align domestic
regulation with the ICAO standards rested on the reasonable
judgment that the best way to reduce greenhouse gas emissions
globally would be to align with international standards, rather
than to exceed them. In the Aircraft Rule, the EPA explained
that “aligning domestic standards with the ICAO standards,
rather than adopting more stringent standards, will have
substantial benefits for future international cooperation on
airplane emission standards, and such cooperation is the key
for achieving worldwide emission reductions.” 86 Fed. Reg. at
2,144–45. As the agency emphasized, it had “invested
significant effort and resources … to gain international
consensus within ICAO to adopt the first-ever international
[carbon dioxide] standards for airplanes.” Id. at 2,158.
The EPA determined that given the international nature of
both aircraft emissions and climate change, it was critically
important that domestic regulations not undermine the ICAO
standards. Effective reduction of greenhouse gas emissions
from aircraft engines requires international coordination
because almost three-quarters of such emissions are generated
by aircraft beyond the reach of American regulators. See id. at
2,143 n.51. In order for the ICAO standards to compel
adherence, “[r]eciprocity and consistency are essential,
specifically the worldwide mutual recognition of the
sufficiency of ICAO’s standards and the avoidance of any
unnecessary difference from those standards in each Member
State’s law.” Id. at 2,157.
The EPA also explained that a unified set of domestic and
international standards would be beneficial for the aircraft
industry by “decreas[ing] administrative complexity for

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airplane manufacturers and air carriers.” Id. Such uniformity
would be “key” for “manufacturers as they become familiar
with adhering to [ICAO’s] standards.” Id. at 2,158. The EPA
has noted in other section 231 rules the importance of
international regulatory uniformity for manufacturers and
consumers. See Control of Air Pollution From Aircraft
Engines: Emission Standards and Test Procedures, 87 Fed.
Reg. 72,312, 72,314 (Nov. 23, 2022) (finding that uniformity
“helps reduce barriers in the global aviation market, benefiting
both U.S. aircraft engine manufacturers and consumers”).
Nor are we persuaded by petitioners’ suggestion that by
consistently aligning domestic standards with the ICAO
standards, the EPA has impermissibly delegated its regulatory
authority to an international body. The EPA cannot abdicate its
section 231 responsibilities and transfer them to ICAO. See
U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004)
(“A general delegation of decision-making authority to a
federal administrative agency does not, in the ordinary course
of things, include the power to subdelegate that authority
beyond federal subordinates.”). But there was no such
delegation here: the EPA never conferred on ICAO any
authority to make rules under section 231. The EPA simply
chose, within its rulemaking process, and in compliance with
the notice and comment procedures of the APA and United
States treaty obligations, to align domestic emissions standards
with the ICAO standards.
The EPA’s explanations of its regulatory choice were
reasonable. Having concluded it was of paramount importance
that the global community align on the ICAO standards, the
EPA determined it would be preferable for regulatory
developments to be channeled through that process, rather than
through uncoordinated domestic regulation across member
states. Indeed, the EPA has consistently harmonized aircraft

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emission standards under section 231 with the ICAO standards.
See supra note 1; NACAA, 489 F.3d at 1225. Implementing
more stringent domestic regulations, even if beneficial in the
short term, could undermine confidence in the ICAO process
or make it more difficult to coordinate more stringent
international standards in the future. As the EPA noted, such
considerations were particularly critical to ICAO’s inaugural
regulation of greenhouse gas emissions.
In the Aircraft Rule, the EPA reasonably recognized the
problems of climate change and explained why it chose to
harmonize domestic aircraft emission standards with the ICAO
standards.
B.
Petitioners next argue the EPA failed to consider three
alternatives that would reduce greenhouse gas emissions. First,
they argue the EPA could have required all newly produced
aircraft be as fuel efficient as the most efficient aircraft
currently in the global fleet. Second, the EPA could have
adopted technology-forcing standards designed to achieve
emissions reductions over the current fleet. Third, the EPA
could have considered other measures to reduce emissions
beyond fuel efficiency, such as requiring operational changes
or the use of alternative fuels.
It may be arbitrary or capricious for an agency to ignore
an obvious alternative, such as when the failure to consider an
alternative reflects a failure to “consider an important aspect of
the problem.” State Farm, 463 U.S. at 43. But section 231 does
not explicitly require the EPA to study alternative regulatory
approaches, and under the APA the question is whether the
agency acted reasonably in considering the options before it.

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In the Aircraft Rule, the EPA reasonably prioritized
harmonization with ICAO standards and that policy choice
foreclosed petitioners’ alternatives. The EPA addressed the
alternatives raised by the petitioners, recognizing that
commenters had proposed standards that were more stringent
and technology-forcing. The EPA concluded, however, that
implementing such standards would delay bringing U.S.
regulations into line with the ICAO standards that had already
gone into effect. Any further delay would result in hardship to
American manufacturers, which must navigate lengthy
timelines for the certification and sale of new aircraft.
The EPA’s explanation of its choice was sufficient,
particularly because none of the alternatives proposed by
petitioners would have achieved one of the central goals of the
Aircraft Rule—harmonizing domestic regulations with the
ICAO standards. Each of the alternatives instead proposed
more stringent domestic regulations, whether through stricter
fuel efficiency standards or through operational changes not
mandated by ICAO. Given the agency’s reasonable conclusion
that the best way to reduce global greenhouse gas emissions
was to coordinate around the ICAO standards, there was no
need for the agency to exhaustively examine alternatives that
departed from these standards.
C.
Finally, petitioners suggest the EPA acted arbitrarily and
capriciously by issuing only brief statements at the end of the
Aircraft Rule regarding compliance with two executive orders.
Executive Order 12,898 requires federal agencies to consider
the environmental effects of their actions on minority and low-
income populations. See Exec. Order 12,898, 59 Fed. Reg.
7,629 (Feb. 11, 1994). Executive Order 13,132 requires
agencies to consider the effects of their actions on the balance

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between the federal government and the states. See Exec. Order
13,132, 64 Fed. Reg. 43,255 (Aug. 4, 1999). In the Aircraft
Rule, the EPA simply concluded that the Rule complied with
these executive orders, as well as others. 86 Fed. Reg. at 2,170–
71.
Petitioners’ claims are explicitly foreclosed by the
executive orders. Both orders state they are “intended only to
improve the internal management of the executive branch” and
provide no right to judicial review. See Exec. Order 12,898, 59
Fed. Reg. at 7,632–33 (“This order shall not be construed to
create any right to judicial review.”); Exec. Order 13,132, 64
Fed. Reg. at 43,259 (“This order … is not intended to create
any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, its
officers, or any person.”).
As we have previously explained, an executive order
“devoted solely to the internal management of the executive
branch—and one which does not create any private rights—is
not … subject to judicial review.” Meyer v. Bush, 981 F.2d
1288, 1296 n.8 (D.C. Cir. 1993). Such orders simply serve as
presidential directives to agency officials to consider certain
policies when making regulatory decisions. They do not create
free-standing private rights to enforce such policies because an
executive order is not “law” within the meaning of the
Constitution or the APA. See U.S. C ONST. art. I, § 1; 5 U.S.C.
§ 706.
Petitioners argue the Aircraft Rule is arbitrary and
capricious because it fails to comply with these executive
orders, but “such an argument is nothing more than an
indirect—and impermissible—attempt to enforce private rights
under the order.” Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1,
9 (D.C. Cir. 1999). The cases petitioners cite in favor of our

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review are easily distinguishable. For instance, we have
allowed review of regulations under the National
Environmental Policy Act (“NEPA”) and the APA when the
agency’s analysis reflected policies implicated by Executive
Order 12,898. See Cmtys. Against Runway Expansion, Inc. v.
FAA, 355 F.3d 678, 689 (D.C. Cir. 2004). We carefully
explained, however, that the claim was reviewable only
because it did not arise under the Executive Order, but rather
under NEPA, which imposes statutory obligations that
agencies must execute consistent with the requirements of the
APA. See id.; see also Vecinos para el Bienestar de la
Comunidad Costera v. FERC, 6 F.4th 1321, 1330 (D.C. Cir.
2021) (reiterating that Executive Order 12,898 on
environmental justice “does not create a private right to judicial
review” but “a petitioner may challenge an agency’s
environmental justice analysis as arbitrary and capricious
under NEPA and the APA”).
By contrast, petitioners’ claims implicate no independent
statutory requirements and instead rely exclusively on the two
executive orders. The Aircraft Rule simply includes short
boilerplate conclusions about compliance with the orders.
Because these statements provide no substantive analysis
under NEPA or any other statute, review of petitioners’ claims
would simply be to assess whether the EPA correctly
concluded there are no environmental justice or federalism
consequences within the meaning of the executive orders. Such
review, however, would be tantamount to recognizing a private
right to enforce the executive orders, which is foreclosed by the
orders as well as by our precedents. See Air Transp. Ass’n, 169
F.3d at 9. Petitioners cannot bootstrap private enforcement of
executive orders into arbitrary and capricious review.
* * *

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The EPA possesses substantial discretion to regulate
aircraft emissions under section 231 of the Clean Air Act. In
aligning domestic regulation with standards promulgated by
ICAO, the EPA acted lawfully, and petitioners have not shown
the agency’s decision was arbitrary and capricious. The
petitions for review are denied.
So ordered.

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