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The justices on Monday added four new cases, involving the venue for challenges to the Environmental Protection Agency’s actions under the Clean Air Act and federal sentencing law, to its docket for the 2024-25 term. The justices also declined to take up a challenge to the structure of the Consumer Product Safety Commission and a challenge to the decision by a Long Island town to take private property to build a public park.
But Monday’s order list was just as notable for the justices’ failure to act on a variety of cases, including a death penalty case from Alabama that the justices have now considered at 24 consecutive conferences.
The justices granted three cases involving where challenges to EPA’s actions under the Clean Air Act should be filed. That law requires challenges to “nationally applicable regulations,” as well as actions that have “nationwide scope or effect,” to be filed only in the U.S. Court of Appeals for the District of Columbia Circuit. On the other hand, challenges to the EPA’s approval or issuance of any implementation plan, as well as any other final action by the EPA that is “locally or regionally applicable,” can only be filed in the local or regional court of appeals.
In Oklahoma v. EPA and PacifiCorp v. EPA, the justices agreed to decide whether the EPA’s denial of states’ plans to implement national air quality standards under the Clean Air Act’s “good neighbor” provision can only be brought in the D.C. Circuit. The two cases will be argued together sometime early next year. Justice Samuel Alito did not participate in the decision to grant review, presumably because he owns stock on one of the companies challenging the EPA.
And in a third case, EPA v. Calumet Shreveport, the justices will consider whether the EPA’s denial of over 100 petitions filed by small oil refineries seeking exemptions from the requirements imposed by the Clean Air Act’s Renewable Fuel Standards program must be litigated in the D.C. Circuit.
The justices also granted review in Esteras v. United States, in which they will consider whether, in considering whether to revoke an individual’s supervised release and impose a prison sentence, a court may consider factors from the law governing sentencing that the supervised release law does not mention.
The justices turned down, without comment, a challenge to the structure of the Consumer Product Safety Commission. Created in 1972, the CPSC has five commissioners, nominated by the president and confirmed by the Senate, who can only be removed “for cause.” The commissioners serve staggered seven-year terms, and the commission cannot have more than three members from the same political party.
The case began as a challenge by Consumers’ Research, a consumer advocacy group, and By Two, an educational consulting group, to a rule issued by the CPSC making changes to its regulations governing requests under the federal Freedom of Information Act – for example, increasing the fee for paper copies by five cents per page.
After the CPSC denied several of their requests for information and fee waivers, the groups filed their challenge in a federal district court in Texas. That court agreed with the challengers that the “for cause” removal restriction violates Article II of the Constitution, which directs the president to ensure that the laws “be faithfully executed.”
The U.S. Court of Appeals for the 5th Circuit reversed. It pointed to Humphrey’s Executor v. United States, a 1935 case in which the Supreme Court held that although a president can generally fire subordinates for any reason, Congress can create independent, multi-member regulatory agencies whose commissioners can only be removed “for cause.”
The challengers contended that the court’s 2020 decision in Seila Law v. Consumer Financial Protection Bureau, in which the court held that “for cause” restrictions on the removal of the director of the CFPB are unconstitutional, also meant that the same restrictions are unconstitutional for the Consumer Product Safety Commission. But the 5th Circuit rejected that contention, explaining that it did “not read Seila Law so broadly.” And if the challengers were correct, it added, invalidating the CPSC’s structure would mean that “the FCC, the NSF, the SBA, and dozens of other agencies would all be unconstitutionally structured.”
The court of appeals, Judge Don Willett wrote, is bound to follow the Supreme Court’s decisions, “even if that precedent strikes us as out of step with prevailing Supreme Court sentiment. The logic of Humphrey’s may have been overtaken, but the decision has not been overruled — at least not yet.”
By a vote of 9-8, the court of appeals declined to reconsider the case.
Represented by (among others) Don McGahn, who served as White House counsel to former President Donald Trump, the challengers came to the Supreme Court this summer, asking the justices to take up the case. But after considering the case at three consecutive conferences, they declined to do so.
The takings clause of the Constitution’s Fifth Amendment bars the government from taking private property for public use unless it fairly compensates the property owner. In Brinkmann v. Town of Southold, N.Y., the justices turned down a request to decide whether a Long Island town violated that rule when it took land owned by two brothers, Ben and Hans Brinkmann, to create a public park.
A federal appeals court ruled that it had not, rejecting the brothers’ contention that the town had actually taken the land to stop the Brinkmanns from building a big-box hardware store and parking lot there. If the government takes the land for a public purpose, Judge Dennis Jacobs wrote, courts should not “inquire into alleged pretexts and motives.”
Judge Steven Menashi dissented, writing that “the Constitution contains no Fake Park Exception to the public use requirement of the” takings clause.
The Brinkmanns came to the Supreme Court in June, asking the justices to take up their case. After considering the case at three consecutive conferences, the justices rejected that request. Three justices – Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh – indicated that they would have granted the brothers’ petition, leaving them one short of the four votes required to secure review. (The court did not act on another pair of petitions challenging government action – New York’s rent-regulation laws – under the takings clause.)
Indeed, Monday’s order list omitted actions on several high-profile cases that the court considered last week, including a pair of appeals arising from a challenge to the congressional map that Louisiana adopted in 2024 and a challenge to the constitutionality of the admissions program at three of Boston’s elite public schools.
The justices also once again did not act on Alabama’s request to reverse a decision by a federal appeals court that lifted the death sentence of Joseph Smith, who was found guilty of the murder of Durk Van Dam. Alabama filed its petition for review in August 2023, and the justices first considered Smith’s case at their conference on Jan. 5, 2024. They have considered it at every conference since then – making it, according to John Elwood, the “most-relisted [Supreme Court] case of all time.”
The cases granted on Monday will likely be argued in late February or March. The justices’ next private conference to consider petitions for review is Friday, Nov. 1.
This article was originally published at Howe on the Court.
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