The Trump Administration has ushered in a new regulatory landscape in the Fifth Circuit.  It is relatively peaceful, as most new litigants have brought their claims in forums perceived to be more liberal than that court (which has long been dominated by Republican-appointed judges).  As Damonta Morgan and I continue to bring you the latest and most consequential administrative and regulatory decisions from the Fifth Circuit, expect the pacing to reflect the recent changes in that court’s docket. 

In the last week or so, the Fifth Circuit has released two decisions regarding challenges that had initially been brought during previous administrations:  Texas v. EPA and Louisiana v. Burgum.  The latter will be the focus of today’s piece—but the former deserves, at least, an overview! 

First, in Texas v. EPA, the Fifth Circuit resolved one of more than twenty lawsuits—spread across eight circuits—challenging the EPA’s disapproval of twenty-one Good Neighbor Provision state implementation plans.  The decision—authored by Judge Richman—deepened a circuit conflict regarding whether venue for the agency challenge was proper only in the D.C. Circuit. 

After concluding that the Fifth Circuit could hear the case, the panel addressed the merits.  “[A]t the very least,” the panel reasoned, the EPA was statutorily required “to assess independently whether a [state implementation plan] satisfies a state’s chosen reasonable interpretation of the Good Neighbor Provision.”  The EPA fulfilled that obligation when it disapproved of Louisiana’s and Texas’s state implementation plans—but it failed to do so when it disapproved of Mississippi’s.  The panel accordingly vacated EPA’s disapproval of Mississippi’s state implementation plan.

Second up:  Louisiana v. Burgum.  There, the Fifth Circuit held that the American Petroleum Institute could not intervene in Louisiana’s suit against the Bureau of Ocean Energy Management (and related federal officials).  Louisiana, among other plaintiffs, had sought to vacate a BOEM rule that governs when “current lessees of offshore drilling facilities in the Gulf of America” must obtain “upfront ‘financial assurance’ bonds to cover the cost of potential future liability for decommissioning offshore oil and gas infrastructure.” 

API, which is the nation’s largest United States trade association for the oil and natural gas industry, wanted to defend the rule.  So, API moved to intervene and, while that motion was still pending, filed a proposed answer to Louisiana’s complaint.  That proposed answer “was materially identical to BOEM’s.”  The district court ultimately held that API had failed to show that it was entitled to intervene, “either as of right or permissively.”

President Trump took office while API’s appeal was pending.  Secretary Burgum quickly ordered the Department of the Interior to unwind the rule, and BOEM has since sought the plaintiffs’ position “on a stay of further proceedings in the district court.”

Despite the intervening events, the Fifth Circuit panel—in an opinion written by Judge Stewart—affirmed the district court.  The ballgame came down to whether API had “demonstrated that BOEM would inadequately represent its interests.”  In the panel’s view, API and the BOEM shared the same ultimate objective:  upholding the rule.  So, the panel applied a presumption of adequate representation—which API did not rebut.  API had shown only “the mere possibility” that BOEM may develop interests that are adverse to its own, not that those adverse interests had materialized.  Time will tell whether that “mere possibility” comes to fruition—but for now, API will be limited to defending the rule as an amicus curiae.