On March 25, the Supreme Court heard oral arguments in two related Clean Air Act cases: Oklahoma v. EPA and EPA v. Calumet Shreveport Refining LLC. The question before the Court in both cases relates to the administrative-law hot topic of venue shopping: Specifically, whether the EPA final action under review may be challenged in only the U.S. Court of Appeals for the District of Columbia Circuit, or whether litigants can bring challenges piecemeal in their local circuits.

The parties ask the Court to delve into knotty definitions of which EPA final actions are “nationally applicable” or are “based on a determination of nationwide scope or effect”; actions that fall under these definitions, per the Clean Air Act’s venue provision, 42 U.S.C. § 7607(b)(1), may be challenged only in the D.C. Circuit.  The Supreme Court’s resolution of the questions presented could critically influence how our nation’s principal air pollution control statute is administered.  Simple intuition points to the best answer: For rules that impact multiple states or regulated businesses across different circuits, challenges should be centralized in the interest of efficiency and administrability. Otherwise, 1) multiple courts will end up committing time and energy to hearing essentially the same challenge, and affected parties will be forced to engage in multiple actions (the efficiency concern), and 2) the agency could be left with a messy patchwork of judicial decisions, leading to inconsistent applications of important regulatory programs and uncertain legal standards for future actions (the administrability concern). On the other hand, for agency actions that are more locally specific, leaving challenges to the local circuit protects the affected state’s or regulated party’s interest in local adjudication. 

Congress has long understood the importance of balancing these principles in deciding which actions require centralized or local review under the Clean Air Act. When Congress drafted a venue provision for the Clean Air Act in 1970, it differentiated between challenges to actions that were “national in scope,” requiring D.C. Circuit review, and challenges to actions that “ran only to one air quality control region,” requiring local circuit review. S. Rep. No. 1196, 91st Cong., 2d Sess. (1970). In 1977, Congress further clarified: Actions with “scope or effect beyond a single judicial circuit” would be included in the former category requiring D.C. Circuit review. H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977). The clarification evinced Congress’s particular concerns over the inefficiency and inconsistency of hearing similar challenges in multiple circuits.

The courts of appeals have also considered these principles in evaluating which actions require centralized review. In 1972, just two years after Congress passed the Clean Air Act, the First Circuit weighed in on whether a challenge to an EPA final rule had to be heard in the D.C. Circuit. The rule at issue approved numerous states’ proposed plans to carry out the Act’s air quality mandates, known as “state implementation plans (SIPs)” under the Act. In the early days of the Clean Air Act, this presented an understandably tricky case. For each state, the approval felt local. And the Clean Air Act’s venue provision specified that individual state implementation plan decisions normally should be challenged in the local circuit. However, the First Circuit found that, where the EPA consolidated multiple SIP decisions together under a unified final rule, centralized review was necessary to avoid inconsistent results and excessive litigation.

Now, as then, the final rule in front of the Court in Oklahoma pertains to multiple SIP submissions, and it is hard to imagine that the balance of principles has changed to demand a different result. In fact, the efficiency and the administrability concerns of decentralized review were actualized in this case when state and industry petitioners filed challenges in eight different courts of appeals across the country—resulting in eight different decisions on whether to stay EPA’s action, and multiple panels of appeals court judges simultaneously considering the merits of EPA’s framework for approving SIPs.

The petitioning states in Oklahoma argue that EPA’s interpretation of the Clean Air Act’s venue provision swallows the whole and would leave no challenges to the local circuits. Such apprehension can be understandable—a defective reading of the venue provision that would direct challenges of any EPA action to the D.C. Circuit on the grounds that practically all federal agency actions are, in some sense, “nationally applicable” would indeed erode certain safeguards of federalism that protect local institutions (and which Congress sought to preserve in the Act). However, the facts show that EPA’s interpretation is clearly not defective in this manner.

For each of its final actions, EPA specifies whether a challenge must be directed to the D.C. Circuit, meaning we can track how the EPA’s interpretation of the venue provision maps onto other SIP-related rules. Its findings over the past 50 years have neither deprived regional circuit courts of their appropriate judicial-review roles nor resulted in an overload of Clean Air Act cases in the D.C. Circuit. In fact, EPA makes findings that its rules require centralized review in fewer than two percent of its Clean Air Act final rules regarding implementation plans. These statistical conclusions comport with the experiences of several former EPA General Counsels who implemented the venue provision under presidential administrations of both parties across several decades. These General Counsels, Jonathan Cannon, E. Donald Elliott, and Avi Garbow, filed an amicus brief in Oklahoma affirming that EPA’s practice in determining venue is “highly judicious and based on the statutory text.” Thus, any assertion that EPA’s position here represents a broader effort to venue-shop and strip power from local courts is baseless.

A final topic of debate worth clarifying here: Petitioners have also raised concern with EPA’s practice in certain instances of consolidating disapprovals into a single final rule. Yet, issuing one final rule on multiple SIP submissions that the agency evaluates under a uniform framework is a well-established EPA practice. The aforementioned 1972 case, NRDC v. EPA, also regarded a single final rule that made determinations on several SIP submissions, and where appropriate, EPA has regularly grouped SIP decisions in a similar fashion since that time. Historically, despite their awareness of the practice, neither Congress nor the courts criticized EPA’s practice. In fact, the practice addresses the same efficiency and administrability concerns that Congress found availing when drafting the Clean Air Act’s venue provision; the consolidation promotes judicial economy, facilitates EPA’s maintenance of national standards, and provides legal predictability for regulated parties and states.

In sum, a Supreme Court decision supporting EPA’s interpretation of the venue provision would be a victory for efficiency and administrability. EPA must be able to implement national programs that affect entities in multiple states and judicial circuits without facing a multitude of duplicative local circuit challenges. And regulated industries and states affected by EPA’s programs should not be subject to the legal uncertainty that would result from conflicting circuit opinions.

Ralph Skinner is a 2L in the Environmental Law Clinic at Stanford Law School, which filed an amicus brief in Oklahoma v. EPA on behalf of Former EPA General Counsels.