The Clean Air Act (CAA) requires that challenges to an Environmental Protection Agency (EPA) regulation that is “nationally applicable” or otherwise has “nationwide scope or effect” to be filed in the U.S. Court of Appeals for the District of Columbia Circuit. Where the nationwide scope or effect is harder to find, challengers to EPA rules wish to litigate in courts that are closer to home rather than those that are more attenuated to the impact of the regulation at issue.
That said, on October 21, 2024, the Supreme Court granted three petitions for writs of certiorari that raise questions about whether the D.C. Circuit is the proper venue for cases challenging rules by EPA. With the influx of environmental cases heard across all levels of the U.S. judiciary over the last year, it is no surprise that the Supreme Court granted these petitions.
Two cases, Oklahoma v. EPA and PacifiCorp v. EPA, seek clarification of whether the D.C. Circuit is the proper venue for challenges related to EPA’s denial of state implementation plans to implement national air quality standards for ozone. The State and Industry Petitioners argue that the Fourth, Fifth, Sixth, and Eighth Circuits all found that venue was proper in the regional circuits. On the other hand, EPA argues the D.C. Circuit is the proper venue. These two cases arise out of the Tenth Circuit. Interestingly, Justice Alito did not participate in these petitions.
A third case, Environmental Protection Agency v. Calumet Shreveport Refining, LLC, raises the issue of whether cases challenging denial of exemptions under the CAA’s Renewable Fuel Standard program are required to be litigated before the D.C. Circuit. The EPA argues that the D.C. Circuit is the proper venue for this challenge and cites that the Third, Seventh, Ninth, Tenth, and Eleventh Circuits agree. This case comes from the Fifth Circuit. There is no indication that Justice Alito did not participate in the consideration of this petition.
This is an opportunity for the Supreme Court to solve a circuit split on both issues. The regional circuits are divided on whether the venue is more appropriate in the D.C. Circuit or the regional circuits. Advisement on venue on these specific provisions of the CAA will have a ripple effect on litigation across other CAA provisions. Given the recent increase in environmental law actions across the U.S. Courts of Appeals and the U.S. Supreme Court, environmental lawyers should stay tuned on the developments of these three petitions as we progress through this term.
