Natural Resources Defense Council v. Environmental Protection Agency
395 U.S. App. D.C. 397
| D.C. Cir. | 2011Background
- NRDC challenged EPA's January 5, 2010 Guidance on section 185 fees and alternative programs for 1-hour nonattainment areas transitioning to the 8-hour standard.
- Guidance proposed two alternatives—program and attainment—that could render section 185 fees not required if found not less stringent.
- NRDC filed a petition for review under Clean Air Act § 307(b)(1) alleging APA notice-and-comment violation and statutory issues.
- EPA argued NRDC lacked standing, that the Guidance was not final agency action, and that challenges were unripe.
- The court held the Guidance changed the law, was a final legislative rule requiring notice and comment, and vacated the Guidance as to the attainment and program alternatives.
- The decision granted NRDC's petition for review and vacated the Guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NRDC has standing to challenge the Guidance. | NRDC members in 1-hour nonattainment areas suffer injury. | Any injury is speculative; no concrete effect yet. | NRDC has organizational standing to challenge the Guidance. |
| Whether the Guidance is final agency action." | Guidance binds regional directors and changes applicable law. | Guidance was non-final policy/interpretive action. | Guidance constitutes final agency action. |
| Whether the Guidance is subject to notice-and-comment under the APA. | The Guidance is a legislative rule; requires notice and comment. | Policy statement or interpretive rule exempt from notice and comment. | Guidance is a legislative rule requiring notice and comment. |
| Whether the attainment alternative violates the plain language of §172(e). | Attainment alternative is not as stringent as the required controls. | Alternatives align with anti-backsliding goals. | Attainment alternative violates §172(e) plain language and is unlawful. |
| Whether the program alternative is permissible gap-filling under the Act. | Any alternative undermines the statutory requirements for 185. | Potentially permissible if not less stringent; requires analysis. | Program alternative cannot be upheld as implemented; the judgment vacates the Guidance. |
Key Cases Cited
- Whitman v. Am. Trucking Ass'ns., 531 U.S. 457 (2001) (statutory framework for interpreting EPA authority under Subpart 2)
- South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) (anti-backsliding and Subpart 2 interpretation; retention of controls)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action concepts and finality principles)
- Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (finality and ripeness considerations for agency action)
- Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207 (D.C. Cir. 2007) (finality and rulemaking analysis in environmental regulation)
- Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007) (gap-filling and statutory interpretation limits on EPA discretion)