Accountable.US Sounds Alarm on Supreme Court Cases That Threaten to Greenlight Judge Shopping, Weaken Environmental Protections

Today, the Supreme Court will hear oral arguments in Oklahoma v. EPA (consolidated with PacifiCorp v. EPA) and EPA v. Calumet Shreveport Refining, LLC. These cases pose a major threat to the integrity of the judicial system, and would enable special interest-backed groups to sue the EPA before ideologically-aligned judges and potentially manipulate the outcome of those cases.

Both cases involve a key provision of the Clean Air Act, which has long required companies challenging actions by the Environmental Protection Agency (EPA) to do so in the D.C. Circuit, if those actions have a “nationwide scope.” When the Clean Air Act was codified into law over half a century ago, Congress was intentional and clear in designating the D.C. Circuit as a neutral venue for litigating EPA actions that could impact multiple states. Now, Republican-led states and the oil and gas industry are trying to roll back this decades-old provision of the Clean Air Act so they can more easily shop their challenges to EPA actions in industry-aligned courts, like the Fifth Circuit Court of Appeals.

“We all know that corporate special interests have been hand-picking judges to hear their cases to guarantee more favorable outcomes. The cases before the Supreme Court today would turbocharge this judge shopping at everyday Americans’ expense,” said Accountable.US President Caroline Ciccone. “These cases are yet another assault on foundational laws protecting the environment and public health, being brought forward to line the pockets of Big Oil & Gas. At a time when confidence in the Supreme Court is at an all-time low because of Justices’ ethical lapses, siding with special interests to weaken the integrity of the judicial system would only fracture Americans’ trust further.”

The cases being heard today are part of a larger strategy to greenlight judge shopping in the Fifth Circuit and other circuits dominated by conservative judges. For example, an Accountable.US analysis released last year revealed that the industry-aligned U.S. Chamber of Commerce was taking judge shopping to new extremes, and that since 2017 roughly 63% of the Chamber’s lawsuits challenging federal regulations were filed in district courts under the Fifth Circuit’s jurisdiction. While the Federal Judicial Conference has adopted a new policy addressing the problem of judge-shopping and its effect in undermining public confidence in the courts, certain federal courts within the Fifth Circuit, like the Northern District of Texas, pointedly refused to implement the policy.