As recent public discussions demonstrate, debates over venue can be as contested as the challenges themselves.[1]This term, the Environmental Protection Agency (EPA) faces such a venue dispute at the Supreme Court in Oklahoma v. EPA, a case concerning the proper venue to resolve challenges to the agency’s denial of state implementation plans (SIPs) under the Clean Air Act’s (CAA) “Good Neighbor” provision.[2] In a period of flux for administrative and environmental law, where Congress intended these CAA challenges to be adjudicated poses an equally vital question for EPA’s role in protecting public health and regulating interstate air pollution.

Harmful ground-level ozone is created by pollutants emitted from a variety of sources, including industrial activity, electricity generation, and vehicle exhaust, that chemically react in the presence of sunlight, even after traveling long distances.[3] In an effort to address the harms posed by these traveling pollutants, the Good Neighbor Provision creates a cooperative federalism scheme to govern interstate air pollution. The provision concerns EPA review of SIPs to regulate specific pollutants, like ozone, to ensure states do not “contribute significantly to nonattainment” or “interfere with maintenance” of the National Ambient Air Quality Standards (NAAQS) in any other state.[4] Recognizing that “[a]ir pollution is transient, heedless of state boundaries,” the Court previously found that “regulators must account for the vagaries of the wind.”[5] The Good Neighbor provision represents “Congress’ chosen method of balancing the interests of upwind and downwind states” to meet that regulatory requirement.[6]

Venue for judicial review of the approval or disapproval of state SIPs under the CAA is determined based on the nature of the agency’s action: (1) “nationally applicable” actions are heard exclusively in the D.C. Circuit, (2) “locally or regionally applicable” actions are generally heard in the respective regional circuit court, and (3) “locally or regionally applicable” actions “based on a determination of nationwide scope or effect” are heard in the D.C. Circuit.[7]

In 2015, the EPA revised and strengthened the ozone NAAQS, triggering a process in which states prepared and submitted SIPs to ensure compliance with the revised standards.[8] With EPA’s denial of 21 states’ SIPs submitted to accommodate the 2015 ozone NAAQS, Oklahoma seeks to resolve a circuit split on whether the nature of the denial action dictates proper review for state challenges in the local circuit or the D.C. Circuit.[9] The Tenth Circuit, in earlier proceedings, transferred petitions to the D.C. Circuit finding that the final rule, which covers eight EPA regions and ten federal judicial circuits, was nationally applicable on its face, and that “EPA applied a uniform statutory interpretation and common analytical methods” for reviewing SIPs.[10]

In appealing the Tenth Circuit’s ruling, Petitioners in Oklahoma seek “the opportunity to litigate the specific issues relating to their emissions, and the downwind effects on their bordering neighbors, in courts intimately familiar with their regional issues, economies, and geographies.”[11] The Fourth, Fifth, and Sixth Circuits each found that proper venue for these cases lies in the local circuit court because the “disapprovals [are] plainly local or regional,” based on “intensely factual determinations” specific to each state.[12]

In contrast, EPA argues that the Court should affirm the Tenth Circuit’s venue transfer to the D.C. Circuit for one of two reasons. Either the disapproval was (1) nationally applicable as “it applies a uniform process and standard to 21 States across the country” or (2) was based on determinations of nationwide scope or effect, as EPA based the disapprovals on “numerous legal and technical determinations that applied across the various states” with “effects well beyond any particular State or judicial circuit.”[13] The Agency particularly highlights the “effects” at issue in its review of SIPs, namely that “downwind effects” can venture “out-of-circuit” and interfere with other states’ attainment of the NAAQS.[14]

The Court’s ruling in Oklahoma will likely shape its role in overseeing federal air pollution policy. At issue is whether EPA’s action to tackle an inherently interstate and national challenge like ozone pollution should be afforded centralized judicial review for a consistent and uniform cooperative federalism regulatory scheme. A favorable venue ruling for Petitioners may increasingly task the Supreme Court with centralized judicial review resolving circuit splits surrounding EPA SIP actions for years to come.

The author wrote and published this blog solely in his personal capacity as a student.

 

[1] Colin Kalmbacher, ‘It’s very unsavory’: 5th Circuit judge brutally criticizes law professor for judge-shopping research — says his comments are ‘attacks on the rule of law’, Law & Crime (Nov. 15, 2024), https://perma.cc/V7M7-4PTV.

[2] Oklahoma v. Env’t. Prot. Agency, No. 23-1067, — S. Ct. —- (2024).

[3] Ground-level Ozone Basics, U.S. Env’t Prot. Agency (May 14, 2024), https://perma.cc/3ZR4-J7VA.

[4] 42 U.S.C. 7410(a)(2)(D)(i)(I).

[5] Env’t. Prot. Agency v. EME Homer City Generation, L.P., 572 U.S. 489, 496-97 (2014).

[6] Brief for the Federal Respondents at 2-3, Oklahoma v. Env’t. Prot. Agency, — S. Ct. —- (2024) (No. 23-1067) (citing EME Homer, 572 U.S. at 498-499).

[7] 42 U.S.C. 7607(b)(1).

[8] 80 Fed. Reg. 65292 (Oct. 26, 2015).

[9] See 88 Fed. Reg. 9336 (Feb. 13, 2023); Brief for the Federal Respondents at 4-9, Oklahoma v. Env’t. Prot. Agency, — S.Ct. —- (2024) (No. 23-1067).

[10] See Oklahoma by and through Drummond v. U.S. Env’t. Prot. Agency 93 F.4th 1262, 1266 (10th Cir. 2024), cert. granted sub nom. PacifiCorp v. EPA, — S. Ct. —- (U.S., Oct. 21, 2024) (No. 23-1068), and cert. granted sub nom. Oklahoma v. EPA, — S. Ct. —- (U.S., Oct. 21, 2024) (No. 23-1067).

[11] Petition for Writ of Certiorari at 27, Oklahoma v. Env’t. Prot. Agency, — S.Ct. —- (2024) (No. 23-1067).

[12] See Texas v. U.S. Env’t. Prot. Agency, No. 23-60069, 2023 WL 7204840 at *5 (5th Cir. May 1, 2023); West Virginia v. U.S. Env’t. Prot. Agency, 90 F.4th 323 (4th Cir. 2024); Kentucky v. U.S. Env’t. Prot. Agency, No. 23-3216 (6th Cir. July 25, 2023). The 11th and 8th Circuits both heard oral arguments in their respective petitions cases but await a decision from the Supreme Court in Oklahoma. Alabama v. U.S. Env’t. Prot. Agency, No. 23-11173 (11th Cir. filed Apr. 13, 2023); Arkansas v. U.S. Env’t. Prot. Agency, No. 23-1320 (8th Cir. filed Feb. 16, 2023); Missouri v. U.S. Env’t. Prot. Agency, No. 23-1719 (8th Cir. filed Apr. 13, 2023); ALLETE, Inc. v. U.S. Env’t. Prot. Agency, No. 23-1776 (8th Cir. filed Apr. 14, 2023). Petitioners in these cases include both the states themselves and industry petitioners. Beyond the venue issue, petitioners often argue EPA was arbitrary and capricious in its reasoning and methodology for denying the SIPs. 5 U.S.C. 706.

[13] Brief for the Federal Respondents at 10, Oklahoma v. Env’t. Prot. Agency, — S.Ct. —- (2024) (No. 23-1067).

[14] Id. at 13-14.