The Nickel Report

On June 18, 2025, the Supreme Court decided Oklahoma v. EPA and EPA v. Calumet, a pair of cases that focus on the Clean Air Act’s (CAA or Act) venue selection provisions.

The judicial review provisions of the Act send review of “nationally applicable” EPA actions to the DC Circuit and review of “locally or regionally applicable” EPA actions to the regional circuits. See 42 U.S.C. § 7607(b)(1). However, in an exception to that rule, venue may lie in the DC Circuit for regionally applicable actions that are “based on a determination of nationwide scope or effect.” In the Court’s two recent decisions, it explained that the CAA venue analysis called for a two-step inquiry. First, courts must decide whether the EPA action is nationally applicable or only locally or regionally applicable; if nationally applicable, the case belongs in the DC Circuit. Second, if locally or regionally applicable, courts must decide whether the case falls within the exception for “nationwide scope or effect” to override the default rule of regional circuit review.

On May 29, 2025, in a decision long-awaited by project developers, the Supreme Court issued Seven County Infrastructure Coalition v. Eagle County, Colorado, which clarified the proper scope of review and deference to be afforded to agency decisionmaking under the National Environmental Policy Act (NEPA). This decision reinforces longstanding Supreme Court holdings and may help improve the NEPA process by providing support for agencies to focus their NEPA reviews on impacts associated with their authorizations.

In response to judicial remand of its Cross-State Air Pollution Rule (CSAPR) Update, EPA published a revised CSAPR Update – the latest of EPA’s interstate transport rules using its CSAPR methodology – at the end of April 2021, slashing ozone-season budgets for emissions of nitrogen oxides (NOx) for a dozen states.[1]  By the end of the 60-day period for filing petitions for judicial review on June 29, a single petition for judicial review had been filed in the US Court of Appeals for the DC Circuit.

As I have reported previously, the US Court of Appeals for the DC Circuit issued a significant decision in September 2019 on EPA’s implementation of the so-called “Good Neighbor Provision” of the federal Clean Air Act (CAA). That is the CAA’s principal provision addressing what is often termed “interstate transport,” the physical process in which emissions from cars, trucks, factories, power plants, and myriad other sources—and the resulting air pollution—are carried by prevailing winds across state borders. The main purpose of the Good Neighbor Provision (section 110(a)(2)(D)(i)(I) of the CAA) is to prevent “significant contribution” by “upwind” states’ emissions to violations of national ambient air quality standards (NAAQS) in “downwind” states. Although states have the principal responsibility to implement this provision, EPA periodically has invoked its CAA authority to impose requirements to curb interstate transport when it determines upwind states have not adopted adequate controls.

On July 9, President Trump announced Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit as his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh has developed an extensive history of jurisprudence during his twelve-year tenure on the DC Circuit. And, given the DC Circuit’s heavy administrative law caseload, Kavanaugh has authored numerous opinions involving environmental law. The upcoming confirmation process is sure to include a focus on Kavanaugh’s robust environmental and administrative law record and what it might portend for the future.

One of the first lessons that most Superfund practitioners learn is that it is no easy task to prevent EPA from placing a site on the National Priorities List. The NPL is the “list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States.”[1] It “contains the most serious uncontrolled or abandoned hazardous waste sites.”[2] There are nearly 1,350 sites on the NPL today. Since the first list was issued in 1980, only 399 – or, on average, ten per year – have been deleted. That is only two per state in a decade (on average). The pace of EPA’s decision-making on proposed deletions is protracted, if not glacial. And looking to the courts for relief from the stigma of having a site on the NPL rarely bears fruit.

It therefore surprised and may even have delighted some practitioners when the DC Circuit decided, in Genuine Parts Company v. EPA, No. 16-1416 (D.C. Cir. May 18, 2018), to overturn EPA’s decision to list the West Vermont Drinking Water Contamination Site on the NPL.