In the last few years, the Supreme Court has struck down significant EPA air and water protections and eliminated one of the agency’s most powerful tools of legal defense.
On Monday, the justices took up another set of cases that could undercut the nation’s top environmental regulator by opening the door to industry groups and Republican-led states seeking to challenge certain EPA rules in more favorable courts.
“I suspect so many cases are granted involving the EPA because that agency in particular likes to push the boundaries,” said Trent McCotter, a partner at the law firm Boyden Gray representing GOP lawmakers who urged the high court to move some EPA lawsuits out of Washington and into the nation’s regional federal appeals courts.
EPA has also called on the justices to provide clarity on the matter.
At issue in the cases the Supreme Court granted Monday is the nationwide applicability of certain EPA rules. Under the Clean Air Act, lawsuits over agency rules that are national in scope must be filed in the U.S. Court of Appeals for the District of Columbia Circuit.
EPA challengers have argued that some matters — namely, state implementation plans for the federal “good neighbor” smog pollution rule and small refinery exemptions under the renewable fuel standard — are best handled by federal appellate judges who are closer to the geographic areas where those issues are playing out.
Those regional courts may also be more sympathetic to challengers’ claims.
In the good neighbor litigation, for example, EPA’s opponents filed in the 10th U.S. Circuit Court of Appeals, which covers six Western states and has more conservative judges than Democratic appointees. And in the biofuels lawsuit, challenges were filed in the conservative-dominated 5th U.S. Circuit Court of Appeals, whose jurisdiction spans Texas, Louisiana and Mississippi.
The D.C. Circuit, by contrast, has more liberal judges than Republican appointees and can be farther removed from the on-the-ground impact of EPA decisions.
Since 2022, the Supreme Court has reached out to invalidate EPA carbon rules for power plants, the agency’s protections for U.S. wetlands and longstanding deference to EPA and other agencies defending rules facing legal attack under the Chevron doctrine.
McCotter said the cases the Supreme Court granted Monday further illustrate justices’ interest in curbing the agency’s overreach.
“EPA bundled together a bunch of regional determinations to make it seem ‘national’ in effect,” he said. “That was very unusual, but it was almost certainly done in the hopes that it would mean challenges would have to go to the D.C. Circuit rather than to the regional circuits.”
EPA did not respond to a request for comment on this story, but in briefs to the Supreme Court, the agency has said that handing litigation to the D.C. Circuit is valid and has been backed by some of the nation’s federal appeals courts — including the 10th Circuit in the good neighbor cases, Oklahoma v. EPA and PacifiCorp v. EPA.
The agency pointed the justices to the biofuels case — EPA v. Calumet Shreveport — as a more appropriate vehicle than the good neighbor litigation for the high court to settle the venue dispute. In the 5th Circuit, EPA lost its bid to transfer the biofuels litigation to the D.C. Circuit.
That decision, EPA wrote in its Supreme Court petition in the case, runs afoul of the Clean Air Act’s goal of creating national uniformity.
“That outcome creates precisely the risk of duplicative litigation and inconsistent rulings that Congress sought to avoid,” wrote Solicitor General Elizabeth Prelogar, “and it interposes substantial obstacles to the orderly operation of EPA programs.”
In the biofuels case, the court was asked to decide whether a dispute about biofuel-blending exemptions was national in scope and not confined to the 5th Circuit, which had sided with petroleum refiners whose exemptions were turned away by EPA.
Cases with a handful of other small refinery exemptions had been heard in other circuits, which ruled differently from the 5th Circuit, setting up a conflict that biofuel groups and EPA asked the Supreme Court to settle.
The biofuel industry groups Growth Energy and the Renewable Fuels Association welcomed news that the high court would hear their argument for moving the case to the D.C. Circuit.
“Because the 5th Circuit opinion set up a clear split with several other circuit courts on the question of venue, this is precisely the sort of issue that the Supreme Court is meant to resolve,” the groups said in a statement. “The court has agreed, and we look forward to participating in the case and having this issue settled once and for all.”
The biofuel groups said that exemptions for refineries, wherever they are, affect the renewable fuels program nationally, since EPA sets national blending-volume requirements.
Refineries say that without the opportunity for exemptions, the biofuel mandates pose a serious economic harm to them and could put the refineries out of business.
In the biofuel industry groups’ view, allowing refineries to sidestep the requirements in large numbers is an abuse of the system.
“The economic and environmental impact of this abuse does not recognize state lines. The decision in this case should strengthen the RFS by giving biofuel producers and their farm partners the certainty they deserve,” the groups said.
Oklahoma Attorney General Gentner Drummond, a Republican, applauded the Supreme Court for taking up the good neighbor litigation.
“Instead of working with Oklahoma to make whatever modifications the EPA claimed were necessary, the Biden administration chose to burden the state with an unwieldy and costly one-size-fits-all plan,” Drummond said. “The EPA ignored the expertise of Oklahoma’s Department of Environmental Quality, all at the expense of state sovereignty.”
Justice Samuel Alito did not participate in consideration of the good neighbor petitions.
The court is expected to decide the cases by next summer. If Donald Trump wins a second term as president this fall, it is possible that his administration could reverse some of the EPA decisions that are in dispute in the cases.
