by Breccan F. Thies
The Federalist

The U.S. Supreme Court took a major step in helping dismantle the federal government’s stranglehold on public policy on Wednesday. In an 8-0 decision, the court ruled that the Environmental Protection Agency (EPA) could not defend itself against a lawsuit from Oklahoma and Utah in its rubber-stamp home court, the D.C. Circuit.

The case arose from the EPA’s 2023 decision to deny the state implementation plans (SIP) submitted by 21 states in order to comply with the 2015 “good neighbor” revision to the Clean Air Act, which “mandates states to prevent their emissions from substantially affecting the air quality of neighboring states.” However, the facts of this case are essentially a secondary point, because the thrust of the Supreme Court appeal has to do with the venue at which the case can be heard…

“It’s forum shopping. The EPA and Democrats want all these environmental and regulatory issues litigated in the D.C. Circuit because they can be more certain of the outcome. The outcome is generally going to favor the government, because that’s just how the D.C. Circuit works,” Steve Milloy, senior fellow at the Energy and Environment Legal Institute, told The Federalist. “The argument is that the judges in the D.C. Circuit handle more of these cases, are more familiar with the statutes, regulations, agencies, administrative law, and so they’re going to come to better decisions because they know more about it. And, you know, the argument against it is that these people just root for the home team, which [to them] is the government.”

On top of being generally sympathetic to federal agencies and regulation, the D.C. Circuit has for decades stacked challenges to federal regulation and other decisions against states in a systematic way, particularly from EPA, Milloy explained.

In general the D.C. Circuit has decided that it should defer to the government agency involved instead of completing a science-based review of challenges like those brought by Oklahoma and Utah. Milloy says this dysfunctional approach may have been weakened by the Supreme Court overturning the Chevron doctrine, which required courts to defer to agencies to interpret ambiguous laws, but that it is still the method of the D.C. Circuit, which has the reputation of being the de facto arbiter of federal regulation.

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