State of Arizona v. Environmental Protection Agency and Michael S. Reagan, Administrator

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 4, 2022 Decided August 11, 2023
No. 21-1159
STATE OF ARIZONA, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S.
REAGAN, ADMINISTRATOR,
RESPONDENTS
On Petition for Review of a Final Rule
of the Environmental Protection Agency
Drew C. Ensign, Deputy Solicitor General, Office of the
Attorney General for the State of Arizona, argued the cause
for petitioners. With him on the briefs were Mark Brnovich,
Attorney General, Jeff Landry, Attorney General, Office of
the Attorney General for the State of Louisiana, Elizabeth
Baker Murrill, Solicitor General, John M. O
=Connor,
Attorney General, Office of the Attorney General for the State
of Oklahoma, Mithun Mansinghani, Solicitor General, Bryan
Cleveland, Deputy Solicitor General, Dave Yost, Attorney
General, Office of the Attorney General for the State of Ohio,
Benjamin M. Flowers, Solicitor General, Ken Paxton,

-- 1 of 12 --

2
Attorney General, Office of the Attorney General for the State
of Texas, and Judd E. Stone, II, Solicitor General.
Sue Chen, Attorney, U.S. Department of Justice, argued
the cause for respondents. With her on the brief was Todd
Kim, Assistant Attorney General.
Before: KATSAS, Circuit Judge, and RANDOLPH and
ROGERS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: Suppose this Court were to
extend a briefing deadline. The affected litigant would gain
the option of taking more time to file its brief, but still could
file on the original schedule. This litigant surely would raise
an eyebrow in claiming that the extension caused it an injury.
The petitioners here face a similar difficulty.
The Environmental Protection Agency extended the
deadline for compliance with a revised national drinking
water regulation, which in turn extended the deadline for
states to enforce conforming revisions to their own
regulations. Five states seek to challenge the federal
extension, which they say will cause them various harms.
Because nothing prevents these states from enforcing the
revised standard on the original schedule, we hold that they
lack Article III standing.
I
A
The Safe Drinking Water Act requires EPA to
promulgate national regulations to reduce the level of
contaminants in public drinking water. 42 U.S.C. § 300g-

-- 2 of 12 --

3
1(b)(1)(A). At least every six years, EPA must “review and
revise, as appropriate,” each such regulation. Id. § 300g-
1(b)(9). Revised regulations may increase but not decrease
health protections. Id. A regulation must require compliance
within three years of its promulgation. Id. § 300g-1(b)(10).
EPA refers to the date when a regulation is codified in the
Code of Federal Regulations as the “effective date” and the
date when compliance is required as the “compliance date.”1
The Act permits states to assume “primary enforcement
responsibility” for public drinking water. 42 U.S.C. § 300g-
2(a). To do so, a state must adopt regulations “no less
stringent” than the national ones and must develop adequate
enforcement procedures. Id. § 300g-2(a)(1) & (2). These
requirements apply to revised regulations as well as new ones.
40 C.F.R. § 142.12. Accordingly, states assuming primary
enforcement responsibility must update their regulations to
remain at least as stringent as the federal ones. But states
always may exceed the federal floor; regardless of any change
in the national regulations, states may increase the stringency
of their own regulations at any time.
EPA refers to states that have assumed primary
enforcement responsibility under this scheme as “primacy
states.” Forty-nine states have achieved primacy, including
the five states who are the petitioners here.
B
At the end of the Trump Administration, EPA
promulgated significant revisions to a national regulation for
reducing lead contamination in drinking water. National
1 The Act refers to the date when compliance is required as
the “effective date.” 42 U.S.C. § 300g-1(b)(10). To minimize
confusion, we will follow EPA’s usage in this opinion.

-- 3 of 12 --

4
Primary Drinking Water Regulations: Lead and Copper Rule
Revisions, 86 Fed. Reg. 4,198 (Jan. 15, 2021) (Revision
Rule). This rule set an effective date of March 16, 2021, and
a compliance date of January 16, 2024 (one day after the
federal holiday on January 15, 2024).
Upon taking office, President Biden issued Executive
Order 13,990, which directed federal agencies to consider
whether Trump-era rules fit the new administration’s agenda.
86 Fed. Reg. 7,037 (Jan. 25, 2021). Heeding that charge,
EPA briefly delayed the effective date of the Revision Rule to
June 17, 2021. National Primary Drinking Water
Regulations: Lead and Copper Rule Revisions; Delay of
Effective Date, 86 Fed. Reg. 14,003 (Mar. 12, 2021).
A few months later, EPA pushed things back once again.
To accommodate its ongoing review of the Revision Rule,
EPA further delayed the rule’s effective date until December
16, 2021. National Primary Drinking Water Regulations:
Lead and Copper Rule Revisions; Delay of Effective and
Compliance Dates, 86 Fed. Reg. 31,939, 31,942–43 (June 16,
2021) (Delay Rule). And to prevent states and regulated
public water systems from having to work towards
compliance while the review remained ongoing, EPA pushed
back the compliance date to October 16, 2024. Id. at 31,941.
This nine-month delay matched the total nine-month delay of
the Revision Rule’s effective date. Five states—Arizona,
Louisiana, Ohio, Oklahoma, and Texas—have petitioned for
review of the Delay Rule. EPA has imposed no further
delays, so the Revision Rule became effective on December
16, 2021, and its compliance date remains October 16, 2024.
On December 17, 2021, EPA announced the results of its
review under the Executive Order. Review of the National
Primary Drinking Water Regulation: Lead and Copper Rule

-- 4 of 12 --

5
Revisions (LCRR), 86 Fed. Reg. 71,574 (Dec. 17, 2021)
(Final Review). EPA confirmed its earlier view that the
Revision Rule “improves public health protection” compared
to the rule it replaced. Id. at 71,577. At the same time, EPA
promised further improvement in a future rulemaking. See id.
at 71,578. No party has challenged the Final Review.
II
As primacy states, the petitioners must maintain and
enforce regulations at least as stringent as the national
drinking water regulation for lead. Under the Revision Rule
as originally promulgated on January 15, 2021, this meant
that petitioners had to promulgate conforming regulations
requiring compliance by January 16, 2024. Between mid-
March and mid-December 2021, EPA considered whether to
rescind the Revision Rule and ultimately decided against
doing so. And while these deliberations were ongoing, the
Delay Rule pushed back the national compliance date, and
thus the state compliance dates, to October 16, 2024. In a
nutshell, EPA considered for nine months whether to rescind
the Revision Rule, and it simultaneously pushed back the
relevant compliance deadlines by the nine months.
Nothing prevents primacy states from meeting their
obligations ahead of the federal deadline. The petitioners here
thus complain about having a choice, but not a duty, to take
more time to begin enforcing regulations conforming to the
Revision Rule. Like the hypothetical litigant given an
extended briefing deadline, the states cannot show that this
extension causes them an injury. And absent an injury
traceable to the Delay Rule and redressable by an order
setting it aside, the states lack standing to challenge that rule.
The Constitution limits the “judicial Power of the United
States” to “Cases” or “Controversies.” U.S. Const. art. III,

-- 5 of 12 --

6
§§ 1–2. Standing doctrine is “rooted in the traditional
understanding” of this limitation. Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016). To establish Article III standing, a
complaining party “must show (i) that he suffered an injury in
fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and
(iii) that the injury would likely be redressed by judicial
relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021). These requirements ensure that federal courts “decide
only the rights of individuals” instead of exercising “general
legal oversight of the Legislative and Executive Branches.”
Id. (cleaned up).
The states assert several theories of how the extended
compliance deadline harms them, but none is persuasive.
A
The states contend that the Delay Rule will cause them to
lose money. They argue that delayed enforcement of tougher
regulations will cause more of their residents to suffer health
problems from lead-contaminated water, which will cause the
states to increase their spending on programs like Medicaid.
EPA responds that these alleged injuries are self-inflicted
because primacy states retain the option of adhering to the
original deadline for enforcing regulations at least as stringent
as the Revision Rule. EPA invokes a line of cases holding
that an alleged injury is “self-inflicted”—and thus cannot
satisfy the traceability requirement of standing—if it is “so
completely due to the complainant’s own fault as to break the
causal chain” from its injury back to the challenged agency
action. Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433,
438 (D.C. Cir. 1989) (quoting 13 C. Wright & A. Miller,
Federal Practice and Procedure § 3531.5 (2d ed. 1984)).

-- 6 of 12 --

7
We have applied that principle in several cases like this
one. In Grocery Manufacturers Ass’n v. EPA, 693 F.3d 169
(D.C. Cir. 2012), we held that petroleum companies lacked
standing to challenge an EPA waiver giving them “the
option,” but not the duty, to sell an otherwise prohibited blend
of fuel. Id. at 177. In Public Citizen, Inc. v. NHTSA, 489
F.3d 1279 (D.C. Cir. 2007), we held that tire manufacturers
lacked standing to challenge a minimum performance
standard that they believed was too lax, despite the possibility
of tort and contract liability if they chose not to exceed it. Id.
at 1290. And in Petro-Chem Processing, we held that
treatment facilities lacked standing to challenge a rule
permitting, but not requiring, the disposal of hazardous waste
in allegedly unsafe salt domes, despite the prospect of tort
liability for choosing to do so. 866 F.2d at 438. In each case,
we held that the regulated party’s failure to pursue a safer
available option made the alleged injury “self-inflicted” and
thus destroyed traceability. As these cases make clear, a
complainant cannot fairly trace its injuries to a regulation that
merely allows, but does not require, the riskier choice that
allegedly causes its injury.
That principle controls this case. As explained above, the
Delay Rule extended by nine months the federal and state
compliance dates for the Revision Rule and its state analogs.
But the Delay Rule in no way prevented primacy states from
proceeding on the original schedule. Their choice to delay
makes self-inflicted any injuries flowing from that choice.
Resisting this conclusion, the states invoke Air Alliance
Houston v. EPA, 906 F.3d 1049 (D.C. Cir. 2018) (per
curiam). There, EPA delayed the effectiveness of its
Chemical Disaster Rule, which assertedly caused objecting
states to incur costs “responding to accidental releases” and
“investigating a refinery explosion.” Id. at 1059. We upheld

-- 7 of 12 --

8
the states’ standing to challenge the delay based on their
increased spending to remediate these harms. See id.
Air Alliance is inapposite here. For one thing, we did not
address any question about what kind of injuries count as
“self-inflicted.” And had we done so, we likely would have
held that the states there were practically if not legally
compelled to engage in conventional exercises of their police
power, which would make their injuries not “self-inflicted.”
See New Jersey v. EPA, 989 F.3d 1038, 1044–47 (D.C. Cir.
2021). That is nothing like the relevant choice for the states
here—whether to meet an extant duty to pass and enforce
certain regulations on original or extended deadlines.
The states highlight a contention implicitly rejected in Air
Alliance. EPA argued that the injuries there were self-
inflicted because the states failed to avail themselves of a
different option—obtaining a delegation of regulatory
authority from EPA and then using it to speed up
enforcement. But none of the petitioning states had this
authority. See Respondent Br., Ex. B., at 5, Air Alliance, 906
F.3d 1049. And obtaining it would have required them to
commit resources to assume primary enforcement
responsibility for a federal regulatory scheme. In contrast, the
petitioning states here already have assumed that
responsibility, and none of them has claimed any desire to
give it up. Regardless of the Delay Rule, these primacy states
have a legal obligation to promulgate and enforce new
regulations at least as strong as the Revision Rule. And as
noted above, setting compliance dates consistent with the
original rather than the extended deadline imposes no further
burden on the states. The states’ choice of the later deadline
makes self-inflicted any injuries flowing from the delay.

-- 8 of 12 --

9
Switching gears, the states contend that acting sooner
rather than later has its own costs. For one thing, they assert
that diverging from a federal standard is more costly than
following it. But the states do not develop this point even in
general terms, much less explain what costs would flow if the
only divergence involved selecting the original federal
deadline as opposed to the extended one. Nor can the states
base their standing on costs associated with enforcement that
is sooner than they would like. Were we to set aside the
Delay Rule, we would only exacerbate that alleged injury, by
forcing primacy states to begin enforcement nine months
earlier than they otherwise would have to. In short, the costs
to the states of enforcing drinking water regulations flow from
their decisions to assume primacy, and setting aside the Delay
Rule would do nothing to reduce them.
In their reply brief, the states try to link their monetary
injuries to the conduct of other states rather than to their own
timing choices. They claim that the Delay Rule will cause
other states to tarry in enforcing the Revision Rule, which will
harm those states’ citizens, who will then move to the
petitioner states, which will then have to increase their
Medicaid and other spending. Because this attenuated theory
of standing is hardly self-evident, the states had to raise it—
and support it with evidence—in their opening brief. See,
e.g., Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 612–16
(D.C. Cir. 2019); Sierra Club v. EPA, 292 F.3d 895, 900
(D.C. Cir. 2002); D.C. Cir. R. 28(a)(7). Yet their opening
brief nowhere hints at a standing theory keyed to independent
acts of other states and to interstate migration. The states
failed to preserve a standing argument based on this distinct
causal chain.

-- 9 of 12 --

10
B
The states claim that because the Delay Rule directly
regulates them, their standing to challenge it is self-evident.
This argument traces back to a statement in Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992), that there is
“ordinarily little question” of standing if the complainant “is
himself an object” of the rule in question. Id. at 561–62. We
too have said that standing is “usually” self-evident if a rule
directly regulates the plaintiff. Corbett v. TSA, 19 F.4th 478,
483–84 (D.C. Cir. 2021); Bonacci v. TSA, 909 F.3d 1155,
1159–60 (D.C. Cir. 2018). Yet these cases involved rules that
constrained what regulated parties may lawfully do—a
traveler forced to wear masks in Corbett, and a pilot forced to
go through airport security in Bonacci.
As explained above, a different analysis governs rules
that expand the regulated parties’ lawful range of choice. In
those cases, the fact that the rule applies to a party hardly
makes self-evident that party’s standing to challenge the rule.
As noted above, a petroleum company cannot challenge a rule
allowing, but not requiring, it to sell additional kinds of fuels.
Grocery Mfrs. Ass’n, 693 F.3d at 177. And a treatment
facility cannot challenge a rule allowing, but not requiring, it
to use an allegedly dangerous method for disposing of
hazardous waste. Petro-Chem Processing, 866 F.2d at 438.
Because the Delay Rule gives the states more options,
their standing to challenge it cannot be characterized as self-
evident. And as explained above, the states have not shown
any injury fairly traceable to having this choice.

-- 10 of 12 --

11
C
The states assert that the Delay Rule increased regulatory
uncertainty, leading to larger compliance costs. This claim
fails for lack of traceability or redressability.
EPA did create regulatory uncertainty. As a result of the
Executive Order, it considered for nine months whether to
rescind the Revision Rule. Then, EPA promised a further
rulemaking to improve upon it. At every step along the way,
EPA acknowledged that these actions created uncertainty.
Final Review, 86 Fed. Reg. at 71,580; Delay Rule, 86 Fed.
Reg. at 31,941, 31,945.
But this uncertainty is traceable only to the decisions to
reconsider the Revision Rule and then to expand it, neither of
which is reviewable agency action. See Portland Cement
Ass’n v. EPA, 665 F.3d 177, 193–94 (D.C. Cir. 2011). Far
from causing the uncertainty that follows whenever an agency
considers whether to amend existing regulations, the Delay
Rule mitigated the uncertainty, by pushing back deadlines
while the reconsideration ran its course.
The states’ uncertainty also is not redressable in this
litigation. Their harm is not knowing what future obligations
they will face, making it difficult to plan. But the Delay Rule
gives the states more time to hedge their bets. Setting it aside
would worsen any problem of regulatory uncertainty, taking
as a given EPA’s unreviewable decision to consider changes
to the Revision Rule.

-- 11 of 12 --

12
III
For these reasons, we dismiss the petition for review for
lack of Article III standing.
So ordered.

-- 12 of 12 --