Does the EPA Have a Hometown Advantage in the DC Circuit?: Oral Arguments in EPA v. Calumet Shreveport Refining and Oklahoma v. EPA

That is a simplified, or perhaps subtextual, version of the questions presented in three closely related cases argued last week in the Supreme Court of the United States, EPA v. Calumet Shreveport Refining, LLC and Oklahoma v. EPA/PacifiCorp v. EPA. The actual questions presented in each case have to do with venue for actions challenging EPA determinations under the Clean Air Act—specifically under 42 U.S.C. § 7607(b)(1). Generally, EPA actions under the Clean Air Act with nationwide effect may only be challenged by a petition for review directly in the DC Circuit Court of Appeals (i.e., challengers do not file their initial legal challenge in federal district court as usual—they must go straight to the Court of Appeals). Other EPA actions with local or regional effect may only be filed in the appropriate Circuit Court of Appeals for that locality or region.

In these cases, EPA had “batched” collections of otherwise local decisions (denials of Renewable Fuel Standard exemptions to over a hundred separately applying small refiners in the Calumet case, and disapprovals of 21 different State Implementation Plans in the Oklahoma/PacifiCorp cases).If considered separately instead of in a batch, these challenges would have been subject to venue in the local Circuit Court. But EPA argued they were subject to challenge only in the DC Circuit because—batched together—they were national in effect. In the decisions below, the Fifth Circuit rejected EPA’s argument and denied a motion to transfer venue to the DC Circuit, while the Tenth Circuit agreed with EPA and held that venue in the DC Circuit was required.

The cases turn on how to read the rather dense text of Section 7607(b)(1). But they must be decided against the backdrop of the EPA apparently trying to game the decision making structure set forth in the statute by batching what were otherwise discrete decisions. EPA argued that 105 RFS exemption denials and the 21 SIP disapprovals—each of which was local on its own—were together effectively “nationally applicable” and/or “based on a determination of nationwide scope or effect.” Interested readers can review the briefs and transcripts, but Justice Kagan may have summed up EPA’s position better than I can: “I don’t know Mr. Stewart. You’re making this much more complicated than I came in here thinking it was.” Justice Kavanaugh posited that the provision establishing venue in the DC Circuit where venue would have been local but for being “based on a determination of nationwide scope or effect” may actually be a null set: clearly defined but never actually occurring in EPA practice.

One might wonder what is really at stake in these cases. The venue question is not jurisdictional; it is merely whether one of the regional Circuit Courts of Appeals should grant motions to change venue to the DC Circuit, where the case would then simply proceed. Is that a problem for anyone? Misha Tseytlin, arguing for the Petitioners in the PacifiCorp case, pointed out that the local rules for the DC Circuit reduce the number of pages that advocates can dedicate to their arguments by an order of magnitude.

From this author’s experience, this is not an insignificant problem. I recall a colleague being required under the local rules to file a joint brief in the DC Circuit in a Clean Air Act matter with another litigant who was challenging the same EPA action but for the opposite reasons. The party with whom we were trying to prepare a joint brief was opposed to our position on the matter, and getting the brief prepared was no small feat. If I recall correctly, the other party (a pro per litigant) tried to object to arguments or points we were including in our portion of the brief because he disagreed with them. In some settings, process becomes substance. If you can’t get as fair a hearing in one venue, it is more than reasonable to avoid the venue if possible.

Justice Kavanaugh took exception to the suggestion that the DC Circuit is institutionally favorable to EPA, which is a fair enough observation. But EPA wanted to be in the DC Circuit for these cases, and they win often enough there. Does the DC Circuit offer EPA a hometown advantage?

It may depend on whom you ask. Per Deputy Solicitor General Malcom Stewart, no, because the DC Circuit is located in Washington, DC, and so is the Supreme Court, and so if that were the case, the Supreme Court should also provide EPA with a hometown advantage, but “I’ve never had that perception (laughter).”