Supreme Court to consider if polluting industries can go court-shopping

By John Fritze, CNN

(CNN) — The Supreme Court agreed to hear three cases Monday from industry groups seeking to choose how to fight federal environmental regulations, highlighting a long-running battle over efforts to pick conservative or liberal courts parties believe will be more friendly to their cause.

The Supreme Court’s decisions next year could have enormous consequences for the ability of states and others to challenge Environmental Protection Agency rules. The court’s conservative majority has repeatedly ruled against the agency in recent terms, including blocking implementation of a major effort to reduce smog and air pollution earlier this year.

States and other plaintiffs frequently file cases in courts that they believe are more likely to rule in their favor, a practice known as “forum shopping.” That has become particularly pronounced in recent years in Texas, where conservatives often file suits challenging Biden administration policies because that opens the possibility of appealing to the conservative 5th Circuit.

Earlier this year, the Supreme Court reversed a decision from the Louisiana-based 5th Circuit that would have severely limited access to the abortion drug mifepristone.
An 8-1 majority also reversed a 5th Circuit guns decision, which had invalidated a federal law barring certain domestic abusers from having access to a firearm.

Federal law generally dictates where challenges can be filed under the Clean Air Act, but the environmental cases the Supreme Court granted Monday may nevertheless call attention to questions about the political balance of the nation’s appeals courts.

The Clean Air Act requires challenges of “nationally applicable” EPA decisions to be filed in the US Court of Appeals for the District of Columbia Circuit, arguably the second-most powerful court in the nation and which often upholds those environmental regulations. Congress included that mandate to ensure national consistency in how the agency’s environmental rules are reviewed by federal courts.

The DC appeals court, because of its location and jurisdiction, also often hears some of the most high-profile cases involving the federal government. 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. Attorney General Merrick Garland also served on the appeals court when he was nominated to the high court in 2016.

The Supreme Court is likely to hear arguments sometime early next year.

Environmental groups warned that the decisions, if they come down on the side of the industry groups, could ultimately debilitate the agency’s regulations.

“Congress established a clear preference for sending Clean Air Act cases with nationwide significance to the DC Circuit, but polluters would prefer to challenge them in the court of their choosing,” said Ian Fein, a senior attorney at with Natural Resources Defense Council. “There they go again trying to weaken the protections we all rely upon for clean air and healthy lungs.”

In 2022, the EPA denied waivers to more than 100 small oil refineries seeking exemptions from the Clean Air Act’s requirement to blend ethanol with gasoline. The refineries argued that those decisions applied to them individually and did not implicate a “national” issue and so they challenged the regulations in the Louisiana-based 5th Circuit, which sided with them.

The Biden administration appealed that ruling to the Supreme Court in May.

The agency argued that allowing different states and industry groups to sue in different courts across the country would lead to “duplicative litigation and inconsistent rulings” that would impose “substantial obstacles” to enforcing environmental regulations.

Two other cases the Supreme Court agreed to hear on Monday deal with Biden administration ozone regulations that are intended to stop pollution from wafting across state lines. Oklahoma and Utah, along with several electric companies, tried to challenge those Biden rules in a federal appeals court in Denver.

The EPA argued that regulations were also “nationally applicable” and should 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 sent the case to DC Circuit for consideration.

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