We need reform. Options include returning cases to the D.C. Circuit (which used to hear the majority of challenges to major rules), or randomly selecting a venue for such cases. The status quo undermines faith in the judiciary. \end

In comparison, the first Trump Administration won 28% of cases filed in Second and Ninth Circuit courts, and 54% of cases outside those circuits. While both administrations saw the effects of forum-shopping, the effects appear more pronounced for Biden than for Trump. \4

This forum shopping made a difference. The Biden Administration lost nearly 80% of cases against major rules filed in Fifth Circuit courts, while winning 68% of all other such cases. \3

During the Biden Administration, 40% of cases against major rules were filed in Fifth Circuit courts (compared to <10% over the prior four administrations), and 16% of major rules ended up in front of just two Texas judges. \2

3/ Brief available here: policyintegrity.org/projects/upd...

Cliff notes version here: medium.com/policy-integ...

2/ In short, in non-environmental contexts, courts routinely require agencies to consider less-than-certain and indirect effects. It cannot be that NEPA - which mandates agencies to develop methodologies to weigh environmental effects alongside economic factors - is less exacting.

I'm gonna need a bigger binder.