The High Court is set to evaluate the possibility of polluting corporations engaging in judicial forum shopping.
The upcoming judgments by the Supreme Court could significantly impact the capacity of states and other entities to contest Environmental Protection Agency regulations. The court's conservative majority has frequently opposed the agency in recent terms, even blocking a significant initiative to decrease smog and air pollution this year.
This practice of filing suits in courts believed to be favorable, known as "forum shopping," is commonly employed by states and plaintiffs, especially in Texas, where conservative parties often challenge Biden administration policies, potentially appealing to the conservative 5th Circuit.
This year, the Supreme Court overturned a decision from the Louisiana-based 5th Circuit that could have restricted access to the abortion drug mifepristone. An 8-1 majority also reversed a 5th Circuit ruling on firearms, invalidating a law preventing certain domestic abusers from owning firearms.
Federal law typically specifies the court for Clean Air Act challenges, but these environmental cases the Supreme Court is considering may stir debates regarding the political balance of the country's appellate courts.
Under the Clean Air Act, challenges to "nationally applicable" EPA decisions should be filed in the US Court of Appeals for the District of Columbia Circuit, a powerful court that often upholds environmental regulations. The mandate is intended to ensure national consistency in evaluating agency environmental rules by federal courts.
However, the DC appeals court's location and juridiction often attract high-profile government cases too. Four of the current nine justices previously served on the DC Circuit: Chief Justice John Roberts and Justices Clarence Thomas, Brett Kavanaugh, and Ketanji Brown Jackson. AG Merrick Garland also served on the appeals court before his appointment to the high court in 2016.
The Supreme Court is expected to hear arguments in early 2023.
Environmental groups warn that rulings in favor of industry groups could ultimately weaken the agency's regulations. According to Ian Fein, a senior attorney at the Natural Resources Defense Council, "polluters prefer to challenge Clean Air Act cases with nationwide significance in their chosen court, rather than the DC Circuit where national consistency is ensured for air and lung health regulations."
In 2022, the EPA refused waivers to over 100 small oil refineries seeking exemptions from the Clean Air Act's ethanol blending requirement. The refineries argued that these decisions affected them individually, and so they challenged the regulations in the 5th Circuit. The Biden administration appealed this ruling to the Supreme Court in May.
The agency argued that allowing different courts to handle challenges could result in "duplicative litigation and inconsistent rulings," creating "substantial obstacles" to enforcing environmental regulations.
Two other cases the Supreme Court agreed to hear deal with Biden administration ozone regulations intended to combat pollution crossing state lines. Oklahoma and Utah, along with several electric companies, challenged these rules in a federal appeals court in Denver. The EPA argued that these regulations were "nationally applicable" and ought to be handled by the federal appeals court in Washington. The 10th Circuit, where Democratic presidents have appointed more active judges than Republican ones, agreed with the government and forwarded the case to the DC Circuit.
The ongoing debates surrounding the Supreme Court's consideration of environmental cases have brought politics into the spotlight, with some arguing that the choice of appellate courts could influence the country's environmental regulations.
Given the conservative majority in the Supreme Court and the conservative 5th Circuit's history of opposing environmental regulations, states and industry groups may strategically challenge EPA regulations in these courts.
