Red states bet on 5th Circuit to take down Biden agenda

By Pamela King, Niina H. Farah, Lesley Clark | 02/15/2023 01:40 PM EST

Nearly half of all multistate lawsuits against the Biden administration have been filed in courts that feed cases to the 5th Circuit, where judges have been more receptive to burgeoning legal theories and opposed to environmental regulations.

Photo collage with Biden, 5th U.S. Circuit Court of Appeals, and court documents

Three-quarters of the active judges on the 5th U.S. Circuit Court of Appeals were tapped by Republican presidents. POLITICO illustration/Photos by AP, Getty Images, court documents

When Republican-led states seek to block President Joe Biden’s environmental policies, there is one court they turn to more often than any other.

Nearly half of all multistate lawsuits against the Biden administration have been filed in federal district courts that feed cases to the 5th U.S. Circuit Court of Appeals — a bench where three-quarters of the active judges were tapped by Republican presidents, and half of those GOP nominees arrived at the court under former President Donald Trump.

“Republican attorneys general, when they can, have tried to get into the 5th Circuit for two reasons,” said Paul Nolette, associate professor and chair in the political science department at Marquette University, who tracks multistate challenges. “There’s a lot of Republican judges, and the judges are much more — for a lack of a better term — activist.”


According to data compiled by Nolette, 43 percent of multistate lawsuits from Republican attorneys general against the Biden administration have originated in federal district courts under the purview of the 5th Circuit, which covers just three states: Texas, Louisiana and Mississippi. During the Obama years, most multistate challenges came up through the U.S. Court of Appeals for the District of Columbia Circuit, which by law has the first bite at Clean Air Act disputes.

Under Biden, red states have advanced only four — or about 7 percent — of their multistate cases in the D.C. Circuit. Nearly all of those are Clean Air Act cases.

Forum shopping — or selecting a court that is more likely to favor a litigant’s claims — is nothing new. During the Trump years, multistate challenges, most of which came from Democratic attorneys general, were evenly distributed across courts largely seen as more favorable to their side: the D.C. Circuit, the 9th U.S. Circuit Court of Appeals on the West Coast and the 2nd U.S. Circuit Court of Appeals in New York.

But the fact that an outsized number of GOP lawsuits against Biden are landing in the 5th Circuit is notable because some judges on the court have been receptive to burgeoning legal theories — such as the “major questions” doctrine — that are helping conservatives wage war against federal regulations, Nolette said.

“It’s not all about the law here,” he said. “Part of it is legitimizing arguments that might have once been considered an off-the-wall argument.”

Multistate litigation emerged in the Trump administration and the later years of the Obama administration as an important tool for like-minded attorneys general to launch coordinated challenges against federal rules promulgated by their opposing political parties.

Among their favorite targets? Environmental rules.

The 5th Circuit has also been a favored venue for challenges to the Biden administration’s Covid-19 mandates, some of which helped build legal precedent later used to dismantle environmental rules.

If red states or industry groups are able to secure an injunction against a Biden regulation in district court that is then upheld by the 5th Circuit, the rule freeze could only be tossed out by the Supreme Court — which declines to hear most cases and is currently dominated by six Republican-appointed justices.

At times, even some of the 5th Circuit’s own members have been critical of their colleagues’ willingness to push the boundaries of the law in service of political interests.

Judge Gregg Costa, an Obama appointee, stepped down from his 5th Circuit position in 2022, citing frustrations about ideological divisions within the judicial branch.

“I do fear that courts are becoming increasingly politicized, and there’s a sense — at least outside the courts — that judges are on teams or that people root for certain sides,” Costa told Bloomberg Law in an April 2022 interview. His seat is currently vacant and is expected to be filled by Biden.

And one Reagan-appointed judge lamented the 5th Circuit’s fate in an unsigned February 2022 ruling that struck down United Airlines’ employee vaccine mandate — and shielded the decision from reconsideration by the full slate of the court’s active judges.

“By today’s ruling, the Good Ship Fifth Circuit is afire,” wrote Judge Jerry Smith in his dissent. “We need all hands on deck.”

‘Luck of the draw’

Biden took office with ambitions to tackle climate change in new and creative ways.

Republican attorneys general have been placing their bets that the 5th Circuit — and the courts below it — will stop Biden regulators in their tracks.

Biden’s federal agencies are “doing things that are not just playing it safe, from their point of view, pushing the envelope, and so they're going to be subject to some challenges,” said Keith Hall, director of the Mineral Law Institute at Louisiana State University.

He added, “This circuit is the most likely place for them to hit some roadblocks.”

Red states — led by Louisiana Attorney General Jeff Landry (R) — notched some early victories against the Biden administration’s climate agenda, scoring injunctions from the U.S. District Court for the Western District of Louisiana against the Interior Department’s oil and gas leasing pause and the White House’s increased estimate of the social cost of emitting greenhouse gases.

Both wins were later reversed by three-judge panels of the 5th Circuit. Each panel, which is randomly selected, contained two judges appointed during Democratic administrations.

Odds are that future environmental cases that come before the 5th Circuit would face a very different slate of judges. Of the court’s 16 active jurists, 12 were appointed by Republican presidents, and six of those were tapped by Trump. Just four of the 5th Circuit’s active judges were nominated during Democratic administrations.

The court also has 10 members who have taken senior status, a form of semi-retirement that allows a judge to take on a reduced caseload. Only three of the 5th Circuit’s 10 senior judges were appointed by Democratic presidents.

“A big part of what dictates outcome does have to do with the luck of the draw,” said Karen Sokol, a Loyola University law professor.

‘Major questions’

In their next round of challenges to the Biden administration’s environmental rules, Republican-led states are testing the theory that the major questions doctrine can be wielded against any regulation they oppose.

The 5th Circuit in particular has been receptive to major questions challenges that have “taken off” in the months since the Supreme Court applied the doctrine in 2022 to scrap a Covid-19 vaccine-or-test mandate and — most notably — toss out the Obama-era Clean Power Plan, said Sokol.

“What I see in the 5th Circuit is this combination of a willingness to rein in the power of the other branches of government with little to no recognition of the power that the judicial branch is exercising,” Sokol said. “That makes for a very dangerous combination.”

In its June 2022 ruling in West Virginia v. EPA, the Supreme Court applied the major questions doctrine — which says Congress must clearly authorize federal agencies to regulate politically and economically significant matters — in a novel way to strike down the Clean Power Plan.

Since that decision, environmental advocates have feared and conservative interests have hoped that the doctrine could emerge as a key weapon against federal rules. Although the Supreme Court said the doctrine’s application would be limited to extraordinary cases, the justices provided few details about what issues would meet that threshold.

Three months before West Virginia was decided, the 5th Circuit reversed the Western District of Louisiana’s decision to strike down the Biden administration’s social cost metric on major questions grounds.

Republican-led states now want the 5th Circuit and its lower courts to take the lead on shaping the theory in the wake of the Supreme Court ruling.

“The lower courts have to figure out what the heck [the major questions doctrine] means,” said Nolette. “And Republican AGs have certainly latched on to that.”

Texas Attorney General Ken Paxton (R) has cited the doctrine in recent challenges to the new EPA and Army Corps of Engineers definition of “waters of the U.S.” and the Labor Department rule on environmental, social and governance investments.

The lawsuits were filed in federal district court in southern and northern Texas, respectively. Both challenges are under consideration by Trump-appointed judges who may be willing to stop the rules from taking effect for years while litigation progresses.

Appeals in both cases would land in the 5th Circuit, where the odds are high that Paxton’s lawsuits would be randomly assigned a three-judge panel sympathetic to the claims.