Supreme Court to Tackle Who Can Sue Agencies Where and for What

With today's cert grants, the Court now has four cases that address the issue of where suits can be filed against federal agencies and who can file them.

This morning the Supreme Court denied certiorari in a case asking the justices to revisit Humphrey's Executor. Do not think for a moment that this means we are not in for a significant administrative law term. There are some potentially big cases in the pipeline, and the Court has quite a few cases this term that deal with important, if not headline-grabbing, administrative law questions.

In today's order list the Court accepted certiorari in multiple cases concerning the interpretation and application of the Clean Air Act's venue provisions. This means the Court now has four administrative law cases this term concerning where certain types of claims against federal agencies can be filed, and who can file them. Here's a quick rundown.

First, in Nuclear Regualtory Commission v. Texas the Court will consider whether parties who did not participate in the relevant administrative proceeding may challenge an agency order for exceeding the agency's statutory authority under the Hobbs Act. The U.S. Court of Appeals for the Fifth Circuit said yes (and subsequently held that the NRC lacks the delegated authority to permit temporary off-site storage of nuclear waste).

Next, in FDA v. R.J. Reynolds Vapor Co. the Court will consider the question "Whether a manufacturer may file a petition for review in a circuit (other than the D.C. Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer's products that is located within that circuit." Here again the Fifth Circuit answered the question in the affirmative. The FDA's position, as you might expect, is that the manufacturer plaintiff was engaged in an impermissible form of forum shopping by adding a local retailer to the case.

Today, the Court added more cases in this vein, all concerning the interpretation and application of the Clean Air Act's venue provisions. These provisions seek to channel petitions challenging EPA regulations of nationwide scope and application to the U.S. Court of Appeals for the D.C. Circuit while allowing challenges to more localized agency decisions to be filed regionally. Drawing that line is easier in some cases than in others.

In EPA v. Calumet Shreveport Refining, L.L.C the Court will consider whether challenges to the EPA's denial of petitions for exemptions from renewable fuel regulations must be filed in the D.C. Circuit. Here, again, the Fifth Circuit did not think so and denied the government's motion to transfer challenges filed by six refineries.

In Oklahoma v. EPA and PacifiCorp v. EPA (consolidated) the Court will consider a similar question, but where it is the EPA that is arguably engaged in venue shopping. Normally, challenges to state implementation plans (SIPs) under the Clean Air Act are filed in the regional circuit in which the state is located. Here, however, the EPA issued a single Federal Register notice finalizing actions with regard to multiple SIPs across multiple states, and the U.S. Court of Appeals for the Tenth Circuit concluded that challenges to portions of that EPA action had to be filed in the D.C. Circuit. Thus the question presented, as one of the petitioners put it, is "Whether the Environmental Protection Agency's disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. § 7607(b)(1) if EPA packages that disapproval with disapprovals of other States' SIPs and purports to use a consistent method in evaluating the state-specific determinations in those SIPs."

In combination, these cases have significance beyond their rather narrow particulars. In decided these cases it is likely the justices will speak to some of the broader concerns about forum shopping in challenges to federal agency actions and give lower courts more guidance about how they should consider innovative efforts to bring such challenges in favorable jurisdictions. (Thus it may be no coincidence that several of these cases came out of the Fifth Circuit.) Put another way, each of these cases may concern narrow, technical questions of administrative law, but when taken together they could be quite significant.

Comments

[Longtobefree]

It would be helpful if all 'regulations' (enforced like laws) were reviewed and approved by congress, making them actual laws.

And who knows. there might be less of them if congress-critters had to put up their hand and say "yes, I agree this is a good thing".

[ReaderY]

I’ve suggested in the past that Congress set up a system requiring Congress to ratify regulations before they go into effect. Maybe once a quarter, Congress would pass a routine fast-track no-debate bill approving all regulations published in the federal register in the past quarter. There could be a simple procedure for a minority to remove specific regulations from the fast-track bill and slow-track them and send through committee etc., by signing a petition that would automatically do this without requiring floor time if the necessary number of signatures were attached. There could be a provision for emergency regulations that could have immediate effect, limited to genuine emergencies where immediate efdect is necessary. But the vast majority of regulations would get ratified in the routine approval bill and then go into effect.

If properly done, this approach could moot discussion of the limits of Congress’ delegation power without taking up large amounts of Congress’ time. It could potentially be implemented so smoothly that hardly anyone would notice. The slow-track provision would make it easier to torpedo a regulation than the current approach where uou need an act of congress overcoming a Senate filibuster to undo a regulation. But this would be consistent with Congress’ oversight responsibility. And requiring an affirmative act of Congress to ratify that can be slow-tracked in paeticular cases by a minority would avoid the constitutional problems the Supreme Court found in Chadha.

[hobie]

You honestly believe this or any congress going forward can pass things of this nature? Your Freedom Caucus will reflexively object to every agency request and you know it

[ReaderY]

And? If Congress doesn’t want any regulations, it doesn’t have to have any.

It could make the number of signatures needed large enough to prevent a small faction from upending things. But if a large enough faction wants to upend things, then at some point Congress wants to upend things. And Congress CAN upend things if it wants. There don’t have to be any regulatory agencies.

I’ll ignore your comment about “my” freedom caucus. But if the Freedom Caucus becomes large enough to reflect Congress’ will, then it becomes OUR freedom caucus, like it or not.

[mulched]

Just run the damn spell-check already!

[Jonathan H. Adler]

It's usually on, but apparently switched off when browser was updated. Sorry about that. They should be all fixed now.

[hobie]

The long game Southern Strategy of slowly dismantling the federal government continues unabated

[Stupid Government Tricks]

You really like bureaucracy, don't you?

[Drewski]

I mean, bureaucracy is probably the single most important and effective tools of governance ever devised. Without it, you can't run a nation. I think the last state to avoid bureaucracy collapsed before the Bronze Age ended.

[Stupid Government Tricks]

How clever. Next time try to understand the context.

[Drewski]

I would but it's too early in the day to start drinking.

[Bob from Ohio]

"denied certiorari in a case asking the justices to revisit Humphre3y's Executor"

That's a pity. The GOP majority is still too establishment, unable to throw out bad, bad precedent.

[John F. Carr]

Alito recused himself from the EPA venue shopping cases Oklahoma and Pacificorp.

[Commenter_XY]

Do they ever say why?

[David Nieporent]

The Democratic-appointed justices do.