Polluters Found a New Way to Weaken the EPA at the Supreme Court

The states strenuously disagreed with that conclusion. “At bottom, the Tenth Circuit’s decision grants EPA the power to ‘transform’ the ‘proper forum for judicial review’ by packaging multiple ‘regionally applicable’ actions into a single Federal Register notice, and therefore making it a ‘nationally applicable action,’” they told the justices in their petition for review. “That holding badly misinterprets the Clean Air Act, and it adopts a view of venue that improperly elevates the form of an EPA action over its substance.”

While the states were unsuccessful before the Tenth Circuit, industry challengers in other jurisdictions have been more successful. The third case, Environmental Protection Agency v. Calumet Shreveport Refining, centered on the agency’s Renewable Fuel Standard program. Six small refineries in Louisiana, Mississippi, and Texas—the three states that fall within the Fifth Circuit Court of Appeals—sought hardship exemptions from the standard, which the EPA denied in 2022. They then mounted a legal challenge to the agency’s actions in the Fifth Circuit.

The EPA argued that those denials “are subject to review exclusively in the D.C. Circuit because they are ‘nationally applicable’ or, in the alternative, because they are ‘based on a determination of nationwide scope or effect,’” quoting from the Clean Air Act. The Fifth Circuit panel disagreed and declined to transfer the case, ultimately ruling against the EPA on the merits as well. In a 38-page ruling, it concluded that the denials instead counted as “locally or regionally applicable” under the law’s venue requirements. The agency asked the justices to review that conclusion as well.