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This week, the Supreme Court took up three cases—Oklahoma v. EPA (consolidated with PacificCorp v. EPA) and EPA v. Calumet Shreveport Refining, LLC—that if successful would roll back a key provision of the Clean Air Act which requires challenges to certain EPA actions to be heard exclusively in the D.C. Circuit, where the EPA is headquartered. With both of these cases seeking to circumvent the D.C. circuit court, a ruling against the EPA in either case could greenlight the practice of judge shopping by allowing regulated parties to challenge the agency in courts dominated by right-wing judges, like the Fifth Circuit.

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This blatant attempt by right-wing politicians and energy companies to continue manipulating our judiciary cannot stand. In one fell swoop, these two cases could allow big polluters to pick their judge whenever they want to challenge a safeguard meant to keep our air clean. Instead of much needed systemic reform, the Supreme Court may rubber stamp this anti-democratic practice while public trust in the Court continues to plummet.”

Accountable.US executive director Caroline Ciccone

EPA v. Calumet Shreveport Refining, LLC, originated in the Fifth Circuit, which has accounted for nearly a quarter of all cases the Supreme Court has agreed to hear thus far this term. The Fifth Circuit is known for being the most conservative federal appeals court, where 12 of the 17 judges were Republican-appointed—half of them by President Trump. This composition has turned the Fifth Circuit into a haven for right-wing groups and corporate special interests looking to “shop” their lawsuits in front of their ideological bedfellows. For example, another case taken up by the Supreme Court this term deals with whether a vaping manufacturer can forum shop their case in Fifth Circuit.

Previous Accountable.US research identified key examples of judge shopping in the Fort Worth division of the Northern District of Texas, of which many were brought by plaintiffs with little to no connection to the area. The anti-democratic practice has ramped up in recent years, with the vast majority of the identified cases filed just within the past year.

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