With Good Neighbor Plan in jeopardy, states, EPA ask: where should the agency’s opponents go to court?

Petitions of the week

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In June, the Supreme Court temporarily blocked the Environmental Protection Agency from enforcing its Good Neighbor Plan while litigation over the plan continues in the lower courts. This week, we highlight petitions that ask the court to consider, among other things, whether ongoing disputes over the EPA’s air-pollution rules can only be heard in the nation’s capital.

The question comes to the justices under a procedural provision tucked into the Clean Air Act. Congress has divided the country into 13 federal judicial circuits. Generally, parties seeking to challenge an EPA regulation under the act should go to their regional circuit. However, when an air-pollution regulation is national in scope, the act instructs challengers to proceed instead to the U.S. Court of Appeals for the District of Columbia Circuit.

A series of petitions ask the justices for guidance on this rule, known as a venue provision.

One set of petitions arises from the ongoing dispute over the act’s Good Neighbor rule. In addition to issuing its own nationwide Good Neighbor Plan, the EPA rejected the proposals of 21 states to comply with the rule’s limits on the spread of pollution from “upwind” to “downwind” states. The justices’ 5-4 decision pausing the EPA’s plan this past June came in response to a request from Ohio, Indiana, and West Virginia — as well as a host of power companies — to delay the plan’s enforcement on an emergency basis.

Under the venue provision, those challenges were filed in the D.C. Circuit. But other states with Republican attorneys general had also gone to court to contest the EPA’s rejection of their own Good Neighbor plans. Two of those states, Oklahoma and Utah, went to their regional circuit, the U.S. Court of Appeals for the 10th Circuit.

The 10th Circuit granted the EPA’s motion to transfer the case to the D.C. Circuit. The court of appeals rejected Oklahoma and Utah’s argument that their challenges should remain in the 10th Circuit because each centers on the EPA’s denial of approval for their individual proposed plans, which in turn rested on facts specific to their states. Instead, the the 10th Circuit agreed with the government that the agency action at the center of the dispute was a “nationally applicable final rule” – challenges to which are assigned by law to the D.C. Circuit.

A second dispute arising from the venue provision involves the Renewable Fuel Standard, a longtime program under the Clean Air Act that requires oil refineries to blend a certain threshold of ethanol and other biofuels into their gasoline or purchase “credits” to offset excess fossil-fuel emissions. When the EPA denied, in one stroke, a slate of requests for exemptions from the standard filed by dozens of refineries nationwide, six of them sought review in the U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana, and Mississippi.

In contrast with the 10th Circuit, the 5th Circuit ruled that it was the appropriate venue for the refineries’ challenge. The court of appeals agreed with the refineries that the EPA’s denial of exemptions from the biofuel standard was a “local or regionally applicable” action, rather than a nationally applicable one. Rejecting the government’s position that the challenged agency rule constrained refineries across the country, the 5th Circuit refused to transfer the dispute to the D.C. Circuit.

In Oklahoma v. Environmental Protection Agency and Environmental Protection Agency v. Calumet Shreveport Refining, the states and federal government ask the justices to weigh in on the operation of the Clean Air Act’s venue provision. Oklahoma and Utah argue that the 10th Circuit diverged from the majority of its sister circuits, which had agreed to keep possession of various challenges regarding the states’ Good Neighbor plans.

The EPA suggests that the justices should not weigh in on the Good Neighbor dispute at all, but instead to hold those petitions while they consider the venue question in the Renewable Fuel Standards litigation.

Adding to these requests, several oil, biofuel, and electric companies have filed their own petitions, in both disputes, asking the justices to resolve the venue debate once and for all.

A list of this week’s featured petitions is below:

Oklahoma v. Environmental Protection Agency
23-1067
Issue: Whether a final action by the Environmental Protection Agency taken pursuant to its Clean Air Act authority with respect to a single state or region may be challenged only in the U.S. Court of Appeals for the District of Columbia Circuit because the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.

Bahlul v. United States
23-1072
Issues: (1) Whether 28 U.S.C. § 455(b)(3) requires recusal when a federal judge is assigned to a case involving the same parties, same facts, and same issues as a case in which they previously appeared as counsel for the government; and (2) whether Section 455(b)(3) provides the exclusive basis for federal judges’ disqualification based upon their previous government service, or whether recusal is still independently warranted under Section 455(a), where a judge’s previous government service gives rise to reasonable questions about their impartiality.

Hile v. Michigan
23-1084
Issues: (1) Whether Michigan’s constitutional amendment barring direct and indirect public financial support for parochial and other nonpublic schools violates the 14th Amendment’s equal protection clause; and (2) whether the failure of a ballot proposal that would have authorized school vouchers and partially repealed the constitutional amendment purges the amendment of its religious animus for purpose of the equal protection clause.

AT&T Services, Inc. v. Bugielski
23-1094
Issue: Whether a fiduciary to an employee benefit plan causes the plan to engage in a prohibited transaction under Section 406(a)(1)(C) of the Employee Retirement Income Security Act of 1974 by entering a routine, arm’s-length agreement for plan services.

Environmental Protection Agency v. Calumet Shreveport Refining, LLC
23-1229
Issue: Whether venue for challenges by small oil refineries seeking exemptions from the requirements of the Clean Air Act’s Renewable Fuel Standard program lies exclusively in the U.S. Court of Appeals for the District of Columbia Circuit because the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.”

Correction (July 18 at 11:34 a.m.): This article has been updated to clarify the relationship among ongoing challenges under the Clean Air Act’s Good Neighbor rule.