940 F.3d 1342
D.C. Cir.2019Background
- The 2012 EPA/NHTSA/CARB "National Program" set coordinated greenhouse-gas (GHG) emission and CAFE standards for light‑duty vehicles through model years (MY) 2025 and committed to a mid‑term evaluation for MY2022–2025 under 40 C.F.R. § 86.1818–12(h).
- Section 12(h) required EPA to decide by April 1, 2018, based on a specified record (draft Technical Assessment Report, comments, etc.), whether the MY2022–2025 standards remained appropriate under Clean Air Act §202(a).
- EPA issued an Original Determination in Jan. 2017 concluding the standards remained appropriate and treated that as final agency action; the underlying technical record remained intact.
- In Apr. 2018 EPA published a Revised Determination withdrawing the Original Determination, concluding the standards were "not appropriate," and announced it would initiate a joint rulemaking with NHTSA to consider revising the standards; EPA stated the 2012 standards remained in effect and that the Revised Determination was not a final action.
- States, environmental groups, and industry petitioned for review of the Revised Determination; EPA moved to dismiss for lack of jurisdiction, arguing the Revised Determination was not "final action" subject to judicial review. The D.C. Circuit dismissed the petitions for lack of jurisdiction, holding the Revised Determination is not final agency action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA's Apr. 2018 Revised Determination is "final agency action" under Bennett v. Spear | The Revised Determination is final and judicially reviewable because it withdrew a prior final determination and initiated a rulemaking that creates legal consequences | The Revised Determination is not final: it does not change standards, leaves all options open, and only begins a notice‑and‑comment rulemaking | Not final: fails Bennett's second prong — it does not itself determine rights/obligations or produce legal consequences |
| Whether EPA incurred a legal obligation to change standards by initiating rulemaking | Withdrawal + announced rulemaking imposed a binding obligation and legal consequences on EPA and affected parties | Initiating rulemaking is like granting reconsideration; it creates possibility, not certainty, and imposes no enforceable duty to change the standards | No binding legal obligation created; rulemaking possibility is non‑final (analogous to petition for reconsideration) |
| Whether Section 177 states suffered legal consequences requiring immediate action | States had to prepare to adopt California standards within a two‑year lead time, so the Revised Determination forced state rulemaking burdens | Any state action was precautionary; the federal standards remained unchanged and the Revised Determination did not compel states to act | No direct legal effect on states; voluntary or precautionary state actions do not render the agency action final |
| Whether withdrawing a prior final determination makes the new withdrawal itself judicially reviewable final action | Because the Original Determination was final, its withdrawal is likewise final and reviewable | Withdrawal restarts agency process; the withdrawal does not itself alter the statutory baseline or create new legal consequences | Withdrawal is not automatically final; divergence in paths (stay course vs. reopen) can produce non‑final action when it only restarts rulemaking |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (establishes two‑pronged test for final agency action: consummation and legal consequences)
- Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (agency grant of reconsideration that merely begins a process that could result in no change is not final)
- Center for Auto Safety v. NHTSA, 452 F.3d 798 (D.C. Cir. 2006) (policy letters without binding application in future enforcement are not final)
- Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014) (agency directive that provides firm, enforceable guidance can be final where relied upon in permitting)
- U.S. Army Corps of Eng'rs v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016) (adopts pragmatic inquiry into whether legal consequences flow from agency action)
- Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014) (focus on actual legal effect on regulated entities when assessing finality)
- Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8 (D.C. Cir. 2005) (practical effect must impose a certain change in legal obligations to be final)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency changing course must offer a reasoned explanation for departing from prior findings)