927 F.3d 532
D.C. Cir.2019Background
- Congress’s Renewable Fuel Standard (RFS) requires EPA to set minimum renewable-fuel volumes and to conduct “periodic reviews” under 42 U.S.C. § 7545(o)(11); that provision mistakenly refers to a nonexistent “subsection (a)(2).”
- In November 2017 EPA published a "Periodic Reviews for the Renewable Fuel Standard Program" document interpreting the erroneous cross-reference and explaining why prior agency analyses satisfy the periodic-review obligation.
- The document states it does not bind parties or the agency, disclaims legal effect, and frames the prior analyses as the agency’s periodic reviews.
- Valero had earlier sued in Texas seeking an order compelling EPA to perform periodic reviews; after the district court dismissed Valero’s claim, Valero petitioned this court to review EPA’s November 2017 document.
- The D.C. Circuit considered whether the EPA document is “final agency action” under Bennett v. Spear and 42 U.S.C. § 7607(b)(1) and concluded it is not final because it imposes no legal consequences on regulated parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA’s 2017 Periodic Review Document is "final agency action" subject to judicial review | Valero: the document interprets statute and declares EPA has fulfilled duties, thus altering legal regime and foreclosing claims | EPA: the document is nonbinding, imposes no obligations, and merely states the agency’s view | Held: Not final — fails Bennett prong 2; no legal consequences flow from the document |
| Whether an agency statement that announces compliance can bar judicial review | Valero: announcement that EPA complied prevents courts from compelling reviews | EPA: document does not and cannot close off judicial claims; it disclaims legal effect | Held: Announcement alone insufficient; unlike Sierra Club, this document carries no binding legal effect |
| Whether practical effects (not formal legal force) can make an action final | Valero: practical consequences of the declaration make it reviewable | EPA: document imposes no immediate or significant practical burdens | Held: Even under pragmatic approach, document lacks immediate/significant practical burden and is nonfinal |
| Whether prior EPA analyses identified in the document could have been challenged | Valero: some prior analyses are arbitrary and subject to challenge | EPA: if so, parties could have timely sought review of those individual actions | Held: Court notes parties could have petitioned under § 7607 for review of prior analyses but Valero did not do so after the document identified them |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (Finality requires consummation and legal consequences)
- Soundboard Ass’n v. FTC, 888 F.3d 1261 (Bennett two-prong test applied)
- Sierra Club v. EPA, 699 F.3d 530 (agency notice declaring compliance was final where it had legal effect)
- Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243 (focus on legal consequences in finality analysis)
- AT&T Co. v. EEOC, 270 F.3d 973 (agency expressions of law without binding effect are not final)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (guidance that reads like a ukase can be final despite disclaimers)
- Sackett v. EPA, 566 U.S. 120 (enforcement exposure relevant to finality)