The Supreme Court is considering whether polluting industries can go to court

CNN
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The Supreme Court agreed to hear three cases Monday from industry groups seeking to decide how to challenge federal environmental regulations, citing a long-running battle over choosing conservative or liberal courts that the parties believe will support their cause be more friendly towards each other.

The Supreme Court’s decisions next year could have huge consequences for the ability of states and others to challenge Environmental Protection Agency rules. The court has a conservative majority has repeatedly ruled against the agency in recent terms of office and, among other things, blocked the implementation of a comprehensive measure to reduce smog and air pollution at the beginning of the year.

States and other plaintiffs often file lawsuits courts that they believe are more likely to rule in their favor, a practice known as “forum shopping.” This has been particularly evident in recent years in Texas, where conservatives often file lawsuits against Biden administration policies because it opens up the possibility of an appeal to the conservative 5th Circuit.

Earlier this year, the Supreme Court overturned a decision by the Louisiana-based 5th Circuit Court that had severely restricted access to the abortion drug mifepristone.
An 8-1 majority also overturned a 5th Circuit gun decision that invalidated a federal law that barred certain domestic abusers from access to a firearm.

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

The Clean Air Act requires that challenges to “nationally applicable” EPA decisions be filed with the U.S. Court of Appeals for the District of Columbia Circuit, arguably the second most powerful court in the country, which often upholds these environmental regulations. Congress included this mandate to ensure national uniformity in federal court review of the agency’s environmental regulations.

Because of its location and jurisdiction, the D.C. Court of Appeals also often hears some of the most high-profile cases involving the federal government. Four of the current nine justices previously served on the D.C. 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 Supreme Court in 2016.

The Supreme Court is expected to hear the arguments early next year.

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

“Congress has established a clear preference for referring Clean Air Act cases of national significance to the D.C. Circuit, but polluters would prefer to challenge them in a court of their choice,” said Ian Fein, a senior attorney at the Natural Resources Defense Council . “There they are again trying to weaken the protective measures that we all rely on for clean air and healthy lungs.”

In 2022, the EPA denied more than 100 small oil refineries exemptions from the Clean Air Act’s requirement to blend ethanol with gasoline. The refiners argued that these decisions applied to them individually and did not implicate a “national” issue, and so challenged the rules of 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 “duplicated litigation and inconsistent decisions,” creating “significant obstacles” to enforcing environmental regulations.

Two other cases agreed to by the Supreme Court on Monday address the Biden administration’s ozone regulations designed to prevent pollution from spreading across state lines. Oklahoma and Utah, along with several electric companies, sought to challenge those Biden rules in a federal appeals court in Denver.

The EPA argued that the rules are also “nationally applicable” and should be addressed 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 the D.C. District for review.