SCOTUS, CTA5, and who can sue, where.

While the long-running friction between the Fifth Circuit and U.S. Supreme Court about standing did not produce cert grants on the topic this term (after last year’s 9-0 reversal on standing in theg mifepristone litigation), three recent Supreme Court reviews of Fifth Circuit opinions involve similar topics, with mixed results:

1. The Supreme Court held that the Fifth Circuit erred by hearing a challenge to a Nuclear Regulatory Commission decision about a waste facility, when the challenger – the State of Texas – had not been a party to the agency proceeding. NRC v. Texas, No. 23-1300 (U.S. June 18, 2025).
2. In EPA v. Calumet, the Supreme Court held that the Fifth Circuit erred because challenges to the EPA’s denials of small-refinery exemption petitions under the Clean Air Act belong only in the D.C. Circuit. While each such denial is “only locally or regionally applicable” because it applies to a specific refinery, they fall within the statute’s “nationwide scope or effect” exception when they are “based on a determination of nationwide scope or effect.” No. 23-1229 (U.S. June 18, 2025); cf. Oklahoma v. EPA, No. 23-1067 (U.S. June 18, 2025) (holding that challenges to state-specific emission plans  belonged in a regional circuit, not the D.C. Circuit, because they were “locally or regionally applicable action”).
3. And in FDA v. R.J. Reynolds, the Supreme Court affirmed the Fifth Circuit’s venue decision about a retailer’s challenge to the FDA’s denial of a permit about a “vaping” product. he FDA argued that only the manufacturer (the applicant) was “adversely affected” and thus eligible to seek judicial review, and that the case should be dismissed or transferred to a different circuit. The Fifth Circuit denied the FDA’s motion and the Supreme Court agreed, olding that retailers who would sell a new tobacco product but for the FDA’s denial are “adversely affected” and may seek judicial review under the TCA. No. 23-1187 (June 20, 2025).