Supreme Court weighs which courts can hear Clean Air Act disputes

The Supreme Court appears poised to keep at least some Clean Air Act disputes in federal courts outside of D.C. — preventing what at least one justice described as “home court advantage” for the Environmental Protection Agency (EPA).

The justices heard a pair of cases on Tuesday about whether certain Clean Air Act disputes should be heard in federal court in D.C. or in federal court in various regions around the nation.

Certain regional courts may have a more conservative or liberal ideological bent, depending on which president appointed its justices. 

The Clean Air Act states that “nationally applicable” determinations made under it should be heard at the D.C. Circuit while “locally or regionally applicable” decisions should be reviewed in the circuit court that has jurisdiction over that region.

The law also contains an exception for locally applicable decisions where the EPA administrator finds they were based on "a determination of nationwide scope or effect."

The first case heard by the court on Tuesday was about the proper venue for EPA’s determinations on biofuel blending requirements for oil refineries. 

The EPA recently denied exemptions for a slate of oil refineries. 

The federal government argued that challenges to such decisions should be weighed in D.C. to prevent “wasting judicial resources and creating a heightened risk of inconsistent outcomes,” according to Malcolm Stewart, Department of Justice deputy solicitor general. 

However, a lawyer representing oil refineries argued that the EPA’s denials of their request for biofuel blending exemptions were local decisions impacting individual refineries. 

During this questioning, the court’s conservative majority seemed inclined to have such disputes heard in the regional circuit courts. 

“You're asking us to change historical practice pretty radically,” Justice Neil Gorsuch told the government lawyer at one point. 

Meanwhile, Justice Samuel Alito pushed back on arguments that the EPA should get some deference under the law. 

“Isn't it very odd to say that the court, in deciding whether there's venue in one place or the other, should defer to the view … [of] one of these parties who are contesting the right to get home court advantage?”

The second case taken up by the court reviewed a similar issue — whether rejections of state air quality plans under the Clean Air Act should be taken up in the region of the state or at the D.C. Circuit. 

While the two cases deal with similar issues, it’s not clear whether the justices will see them the same way.

“Gosh, if anything is nationwide in impact, it's got to be air pollution because it travels,” Gorsuch said. 

Meanwhile, during the first slate of arguments, liberal Justice Elena Kagan signaled that she felt like the cases should be decided differently.

“I have a pretty strong intuition — I won't tell you what it is — about both of these cases. And one goes one way and one goes the other way,” she said, adding that in one case “everything is being decided by the nationwide determination” while in the other “pretty much nothing is being decided by the nationwide determination.”