US Supreme Court to weigh which courts can hear EPA clean air policy challenges

Reuters

US Supreme Court to weigh which courts can hear EPA clean air policy challenges

Oct 21, 2024 at 8:37 pm GMT

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Adds comment from Oklahoma attorney general, PacifiCorp in 4-6 paragraphs

By Nate Raymond

Oct 21 (Reuters) -The U.S. Supreme Court on Monday agreed to consider whether the U.S. Environmental Protection Agency could steer certain lawsuits challenging agency actions designed to reduce air pollution and greenhouse gas emissions away from regional appeals courts favored by opponents of its actions and to a court in Washington that regularly hears regulatory disputes.

The justices agreed to hear appeals by the Republican-led states of Oklahoma and Utah and several energy companies including PacifiCorp PPWLO.PK of a lower-court ruling that transferred their challenges to the EPA's "Good Neighbor" smog control plan to the U.S. Court of Appeals for the District of Columbia Circuit.

The justices also agreed to consider whether a New Orleans-based federal appeals court should have likewise sent to Washington a lawsuit by small refiners challenging the EPA's denial of waivers that would exempt them from national biofuel mandates before deeming the agency's action unlawful.

Oklahoma Attorney General Gentner Drummond, a Republican, welcomed the Supreme Court's action, saying the Biden administration's "Good Neighbor" policy burdened his state "with an unwieldy and costly one-size-fits-all plan."

PacifiCorp said it hoped the court would use the case to "clarify the cooperative authority states and the EPA exercise to implement provisions of the Clean Air Act."

The casesturn on a provision of the Clean Air Act that designates the D.C. Circuit as the exclusive venue for cases over "nationally applicable" EPA actions and rules but leaves cases concerning only local agency actions to regional appeals courts.

The lawsuit by Oklahoma and Utah was one of a slew of cases brought by Republican state attorneys general and industry groups challenging the EPA's "Good Neighbor" plan restricting ozone pollution from upwind states.

The EPA issued the rule in March 2023 intending to target gases that form ozone, a key component of smog, from power plants and other industrial sources in 23 upwind states whose own plans did not satisfy the "Good Neighbor" provision of the Clean Air Act anti-pollution law, requiring steps to reduce pollution that drifts into states downwind.

At the request of Ohio, Indiana, West Virginia, and several industry groups and companies, the conservative-majority Supreme Court in June on a 5-4 vote blocked the rule from being enforced while litigation over it played out in the lower courts.

Those states had originally unsuccessfully sought relief in the D.C. Circuit. But other Republican-led states, including Oklahoma and Utah, pursued challenges in regional appeals courts.

Oklahoma and Utah argued they could pursue their case in the Denver-based 10th U.S. Circuit Court of Appeals because the rejection by the EPA of their and 19 other states' air quality plans constituted a local agency action, not a national one.

The 10th Circuit disagreed in February and transferred the case. Four other regional appeals courts have come to the opposite conclusion and allowed cases to be litigated before them, Oklahoma and Utah said in their petition to the U.S. Supreme Court for review.

In a separate appeal to the Supreme Court, the EPA asked the justices to overturn a ruling by the 5th U.S. Circuit Court of Appeals holding that the EPA in 2022 unlawfully denied six oil refineries waivers from a renewable fuels requirement that they blend ethanol and other biofuels into their fuel.

The 5th Circuit ruled for the refineries on a 2-1 vote after concluding that the agency's actions were local or regional in nature, not national.

The EPA on appeal argued that the case had no business being in the 5th Circuit, because the waiver denials were part of a larger denial of exemptions sought from 36 small refineries in 18 states, making it a national issue.

The cases before the U.S. Supreme Court are Oklahoma v. EPA, No. 23-1067, and EPA v. Calumet Shreveport Refining, No. 23-1229.

For Oklahoma and Utah: Mithun Mansinghani of Lehotsky Keller Cohn

For the refineries: Shelby Dyl of Pillsbury Winthrop Shaw Pittman

For the EPA: Solicitor General Elizabeth Prelogar

Reporting by Nate Raymond in Boston

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