955 F.3d 56
D.C. Cir.2020Background
- EPA issued the SILs Guidance (Apr. 17, 2018) recommending non‑binding Significant Impact Levels (SILs) for PM2.5, ozone, and PM2.5 increments to streamline Prevention of Significant Deterioration (PSD) permitting; states may adopt, adapt, or ignore the values but must justify any use in the permit record.
- The PSD statute (42 U.S.C. § 7475(a)(3)) requires applicants to show new emissions will not cause or contribute to exceedances of NAAQS or increments; EPA had attempted to codify SILs in 2010, but the (k)(2) provisions were vacated by this Court in Sierra Club v. EPA (2013).
- Sierra Club petitioned for review, arguing the SILs Guidance is a final agency action subject to immediate judicial review under CAA § 307(b)(1); EPA argued the Guidance is non‑binding, non‑final, and prudentially unripe.
- The D.C. Circuit applied the Bennett two‑prong finality test (consummation + legal consequences) and held the SILs Guidance is not final agency action under the CAA because it does not produce direct and appreciable legal consequences.
- Key factual/administrative features driving the holding: the Guidance expressly disclaims binding effect, leaves permitting discretion to states, requires a permit‑specific record to rely on SILs, does not impose penalties or compliance obligations, and is advertised as phase one of a possible future rulemaking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the SILs Guidance a final agency action reviewable under CAA §307(b)(1)? | Sierra Club: Guidance definitively interprets §7475(a)(3), was issued after notice and comment, and is therefore final and reviewable. | EPA: Guidance is expressly non‑binding, preserves permitting discretion, and is only an initial, informational step—not final. | The Court: Not final; petition dismissed for lack of CAA subject‑matter jurisdiction. |
| Does the Guidance satisfy Bennett prong two (direct and appreciable legal consequences)? | Sierra Club: Guidance allows permits even where cumulative violations may occur if a source’s individual impact is below a SIL, creating immediate legal effects and increased exposure for members. | EPA: Guidance creates no new obligations, penalties, or binding requirements; states may ignore or adopt different values; it does not change statutory duties. | The Court: Fails prong two—no binding legal effects, no enforcement risk, and permitting authorities retain discretion. |
| Does the Guidance satisfy Bennett prong one (consummation of decisionmaking)? | Sierra Club: EPA took comments, revised the document, and issued a definitive statutory interpretation—consummation is satisfied. | EPA: Guidance explicitly states it is non‑binding and phase one of a two‑step process toward possible rulemaking; process not consummated. | The Court: Did not need to decide prong one because prong two failure is dispositive. |
| If EPA later applies or the EAB adjudicates on the Guidance in a nationally applicable final action, where must review occur? | Sierra Club: (implicit) Review of nationally applicable final action should be in D.C. Circuit under §307(b)(1). | EPA: (implicit) Depends on context of the later action. | Concurring (Wilkins): If a later EAB ruling or other final action resolves the Guidance nationally, review lies in the D.C. Circuit under §307(b)(1). |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (Bennett two‑prong finality test)
- United States Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (affirming pragmatic Bennett analysis re: legal consequences)
- Valero Energy Corp. v. EPA, 927 F.3d 532 (D.C. Cir. 2019) (guidance nonfinal where no obligations, penalties, or independent authority)
- Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 627 (D.C. Cir. 2019) (guidance nonfinal where no independent authority and no penalties for ignoring it)
- Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013) (vacatur of EPA’s 2010 (k)(2) SILs provisions)
- Harrison v. PPG Indus., Inc., 446 U.S. 578 (jurisdictional purpose of CAA §307(b)(1))
- Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009) (agency memo nonfinal where it merely clarified duties and left discretion)