934 F.3d 627
D.C. Cir.2019Background
- EPA issued a 2018 "Wehrum Memo" (signed by Assistant Administrator William Wehrum) announcing that under Clean Air Act §112 a source classified as a "major" source can reclassify as an "area" source whenever it takes an enforceable limit reducing its potential to emit below the major threshold; the memo withdrew the prior 1995 "Seitz Memo" that adopted a "once in, always in" approach.
- Petitioners (California and environmental groups) sought pre-enforcement judicial review, arguing the Wehrum Memo is final and procedurally defective (a legislative rule issued without APA notice-and-comment) or, at minimum, an incorrect interpretive rule.
- EPA and industry intervenors argued the memo is nonfinal guidance, not ripe for review, and that any enforcement or permit consequences arise only through the Title V permitting process (42 U.S.C. §7661d), which provides its own administrative and judicial review routes.
- The D.C. Circuit majority held the Wehrum Memo is not final agency action under Bennett v. Spear because, although it consummates EPA decisionmaking, it does not produce direct and appreciable legal consequences in the statutory/regulatory context (no independent legal effect; permitting and challenge routes remain governed by Title V provisions).
- The court dismissed for lack of subject-matter jurisdiction and expressly declined to decide ripeness, whether the memo is legislative vs. interpretive, or the correctness of EPA’s §112 interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of Wehrum Memo under APA/Bennett | Memo is final because it consummates EPA decisionmaking and binds EPA regional/state permitting practice | Memo is nonfinal guidance with no independent legal effect; Title V governs any legal consequences | Memo is not final: it consummates decisionmaking but lacks direct and appreciable legal consequences in the Title V context |
| Availability of pre-enforcement review under CAA §7607(b)(1) | Petitioners may seek pre-enforcement review of nationally applicable final agency action | Any review must await Title V permit actions and the §7661d administrative process | Dismissed for lack of jurisdiction; court declined to decide ripeness but emphasized Title V review pathways limit pre-enforcement review here |
| Whether memo is a legislative rule requiring notice-and-comment | Petitioners: memo is a binding legislative rule that changed the legal regime so APA notice-and-comment is required | EPA: memo is an interpretive/guidance document not carrying force of law | Court did not decide; declined to reach whether memo is legislative or interpretive |
| Merit of EPA's statutory interpretation of §112 | Petitioners: Wehrum Memo misinterprets §112 and should be vacated if final/interpretive | EPA: memo reflects a correct reading allowing reclassification when enforceable limits reduce potential to emit | Court did not decide the merits; reserved judgment for potential future review in appropriate procedural posture |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (finality test for agency action)
- United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (finality: direct and appreciable legal consequences prong)
- Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (distinguishing legislative and interpretive rules; notice-and-comment not required for interpretive rules)
- Sackett v. EPA, 566 U.S. 120 (agency action causing legal consequences supports review)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (CAA special pre-enforcement review framework)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (guidance binding EPA officials in Title V context can be final)
- National Environmental Development Ass'n v. EPA, 752 F.3d 999 (guidance that binds enforcement officials is final)
- Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243 (analysis of interpretive vs. legislative rules and finality)
- Valero Energy Corp. v. EPA, 927 F.3d 532 (guidance lacking independent legal force is nonfinal)