Bloomberg Law
May 5, 2023, 9:31 AM

Circuit Panel’s Halt of EPA Ozone Rule Threatens National Limits

Jennifer Hijazi
Jennifer Hijazi

A divided Fifth Circuit panel ruling to halt an EPA decision to disapprove key ozone plans in Texas and Louisiana foreshadows similar decisions across regional circuit courts that threaten to upend established precedent.

Texas and Louisiana will likely succeed in their claims that the Environmental Protection Agency acted capriciously by scrapping their air plans, according to the per curiam order issued by the US Court of Appeals for the Fifth Circuit on May 1.

Depending on how similar lawsuits pan out, Clean Air Act watchers say the precedent will affect EPA’s plans to implement major federal pollution limits.

States winning bids for stays across circuits is essentially “undermining a national rule,” according to Northeast States for Coordinated Air Use Management executive director Paul Miller. “It’s a workaround to having to challenge these actions in the D.C. Circuit,” he said.

The contested EPA rule denies air plans from 21 states, to pave the way for a federal implantation plan rooted in stringent new standards for cross-state ozone pollution. The latter rule is still unpublished, but was signed in March.

The Fifth Circuit panel ruled that EPA’s disapproval raises “plainly local or regional” issues, stalling its execution and denying the agency’s request for a venue switch to the US Court of Appeals for the D.C. Circuit.

The concern is that “other circuits are becoming the forums for these kinds of challenges on a state-by-state basis,” Miller said, instead of EPA’s preferred venue of the D.C. Circuit, whose jurisdiction includes federal government agenices. “That will have national implications.”

‘Surprising’ Challenges

Clean air advocates say the decision is troubling because the arguments ostensibly target a national “good neighbor” federal implementation plan.

With other traveling ozone rules, there wasn’t “anywhere near this level of, around the country, regional circuit challenges to EPA’s disapproval of the state plans,” Sierra Club senior attorney Zachary Fabish said. “This level of challenges is quite surprising.”

State Implementation Plans (SIPs) that are submitted to EPA to outline air rule compliance are usually challenged in regional circuits. Alternative plans that the government provides if state plans are rejected are fought in the D.C. Circuit.

But Texas, Louisiana, Utah, Oklahoma, and other states are waging a regional legal war against EPA’s 21-state disapproval, avoiding the D.C. Circuit, a court generally seen as being more amenable to arguments that EPA is acting within its correct authority.

The agency has tried to move the cases out of regional venues, claiming that the overarching federal implementation plan that still needs to be published makes these cases nationally relevant. Those pleas were denied by the Fifth Circuit, with decisions in the Tenth and Eighth Circuits still to come.

These decisions will be significant in how the EPA sets its federal ozone plan, according to Holland & Hart LLP partner Emily Schilling.

“You’re likely to get potentially different decisions across circuits, on issues that will be relevant to the federal implementation plan that is yet to be published,” Schilling told Bloomberg Law.

If all the SIPs are stayed by courts, that would raise questions about EPA’s authority to impose its incoming federal plan, Schilling said.

Precedent at Risk

The circuits could all issue different rulings, creating uncertainty and circuit splits that further chip away at timelines to issue air rules.

Miller said that taking Clean Air Act challenges like these to the D.C. Circuit was essential to avoiding dueling circuit opinions that foster uncertainty and make their way to the Supreme Court.

Predictable and long-held precedent supporting EPA’s methods of crafting multistate ozone transport requirements is also at risk, Miller added.

“Through this side door that the states are running to within their own circuits, they can undercut all that,” Miller said.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is State of Texas v. EPA, 5th Cir. App., No. 23-60069, Order 5/1/23.

To contact the reporter on this story: Jennifer Hijazi in Washington at

To contact the editor responsible for this story: Zachary Sherwood at

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