United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2022 Decided June 30, 2023

No. 21-1018

STATE OF CALIFORNIA, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AEROSPACE INDUSTRIES ASSOCIATION OF AMERICA, INC. AND 

THE BOEING COMPANY,

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, 
2

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, 
3

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 intervenorrespondents. 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: RAO and CHILDS, Circuit Judges, and ROGERS, 

Senior Circuit Judge.
4

Opinion for the Court filed by Circuit Judge RAO.

RAO, 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.
5

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 
6

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).
7

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.
8

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 oneplaintiff 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 
9

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”).
10

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.
11

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.
12

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 
13

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 
14

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 
15

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.
16

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 lowincome 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
17

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. CONST. 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 
18

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.

* * *
19

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.