873 F.3d 946
D.C. Cir.2017Background
- EPA issued 2010 quantitative "hot-spot" guidance for PM2.5 and PM10 hot-spot analyses, triggering a regulatory requirement to use quantitative methods after a two‑year grace period.
- In November 2015 EPA issued revised (2015) guidance changing certain methodological details for PM2.5 and PM10 without notice-and-comment.
- Petitioners (environmental groups) challenged the 2015 Guidance under the Administrative Procedure Act and Clean Air Act, arguing it relaxed conformity analyses and would increase members’ pollution exposure.
- For conformity, federal projects must not cause or worsen violations of NAAQS; hot‑spot analyses are required in nonattainment or maintenance areas per 40 C.F.R. § 93.116/93.123.
- The court assumed the 2015 Guidance makes nonconformity findings less likely, but limited its review to justiciability: standing for PM2.5 and statutory jurisdiction (final agency action) for PM10.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge 2015 PM2.5 Guidance | 2015 Guidance will be used on projects (I-70 East, South Mountain, I-710) and increase member exposure | No concrete use of 2015 method on those projects; two projects not in PM2.5 nonattainment; I-710 analysis either predated or has no showing that 2015 method will be used | No standing for PM2.5 — plaintiffs failed to show a concrete, imminent injury |
| Whether 2015 PM10 Guidance is "final action" under 42 U.S.C. § 7607(b)(1) | 2015 Guidance changes binding methodology and is effectively a legislative rule amending prior rule | Guidance is nonbinding: invites alternatives, applied flexibly in practice, and EPA retains discretion | Not final agency action — Court lacks statutory jurisdiction to review PM10 challenge |
| Whether 2010 Guidance was a legislative rule (relevant to PM10 challenge) | 2010 Guidance was promulgated with notice-and-comment and therefore was a legislative rule; 2015 amends a legislative rule | Even if 2010 had notice-and-comment, guidance status depends on legal effect; EPA’s practice showed flexibility so 2010 was not a binding rule | 2010 Guidance was not a binding legislative rule; 2015 is nonbinding guidance |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete and particularized injury)
- Summers v. Earth Island Inst., 555 U.S. 488 (no standing absent concrete application threatening imminent harm)
- Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (courts may choose among jurisdictional grounds)
- Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999 (standing in EPA conformity contexts)
- Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710 (distinguishing nonbinding guidance from binding legislative rules)
- Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243 (factors for assessing whether guidance is binding)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (example of guidance that read as binding "ukase")
- Am. Petroleum Inst. v. EPA, 684 F.3d 1342 (guidance that does not constitute final agency action for Clean Air Act review)
Result: Petition dismissed (for lack of standing as to PM2.5 and lack of statutory jurisdiction as to PM10).