National Environmental Development Association's Clean Air Project v. Environmental Protection Agency
410 U.S. App. D.C. 50
| D.C. Cir. | 2014Background
- Under the Clean Air Act (CAA) Title V, a “major source” must obtain operating permits; EPA aggregates emissions from multiple facilities if they are (1) under common control, (2) same industrial grouping, and (3) located on contiguous or adjacent properties.
- EPA long interpreted “adjacent” to allow functional interrelatedness (not solely physical proximity) when aggregating facilities for permitting.
- In Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012), the Sixth Circuit held that EPA’s use of functional interrelatedness to establish “adjacency” was unreasonable and invalidated EPA’s aggregation in that case.
- EPA issued the “Summit Directive” instructing regional offices that, inside the Sixth Circuit, EPA would not consider interrelatedness when determining adjacency, but that outside the Sixth Circuit EPA would continue its longstanding case-by-case, functionally interrelated approach.
- National Environmental Development Association’s Clean Air Project (NEDACAP) challenged the Summit Directive, arguing it creates nonuniform, regionally disparate permitting standards that injure members outside the Sixth Circuit by placing them at competitive disadvantage.
- The D.C. Circuit granted review, found the Directive final and ripe, held NEDACAP had standing, and vacated the Summit Directive because it conflicted with EPA’s own Regional Consistency regulations (40 C.F.R. Part 56).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Members outside Sixth Circuit suffer competitive injury because they face additional permitting uncertainty/costs relative to competitors in Sixth Circuit. | Injury is speculative and not caused by Directive; status quo remains for members outside Sixth Circuit. | Plaintiff has associational standing; concrete competitive injury and redressable by vacating Directive. |
| Final agency action | Directive is binding policy that changes enforcement and thus is reviewable. | Directive is non-final, informational, and part of ongoing deliberations. | Directive is final: it consummates decisionmaking and has legal consequences; reviewable. |
| Ripeness | Purely legal challenge; no factual development needed to assess legality of nonuniform regime. | Effects are speculative until applied to particular permits; wait for concrete application. | Claim is ripe: presents a legal question fit for review and will not benefit from further factual development. |
| Merits (uniformity) | Summit Directive violates EPA’s Regional Consistency regulations requiring fair, uniform application and correction of regional inconsistencies. | Agency may choose intercircuit nonacquiescence; CAA contemplates circuit divergence; policy statements do not mandate perfect uniformity. | Vacated Directive: it conflicts with EPA’s own regulations requiring national uniformity of regional implementation; agency cannot ignore its regulations. |
Key Cases Cited
- Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012) (held EPA’s functional-interrelatedness adjacency test unreasonable in that case)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements for Article III)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action test)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) (agency policy statements can be final if they have binding legal consequences)
- Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420 (D.C. Cir. 2004) (distinguishing purely informational letters lacking binding effect)
- Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 663 F.3d 470 (D.C. Cir. 2011) (standing/redressability context)