SIERRA CLUB, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY AND ANDREW WHEELER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS AIR PERMITTING FORUM, ET AL., INTERVENORS
No. 18-1167
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 7, 2020
Argued October 7, 2019
On Petition for Review of an Administration Action by the United States Environmental Protection Agency
Gordon Sommers argued the cause for petitioner. With him on the briefs was Seth L. Johnson. David S. Baron entered an appearance.
Brian H. Lynk, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Jonathan D. Brightbill, Deputy Assistant Attorney General, Brian L. Doster, Assistant General Counsel, U.S. Environmental Protection Agency, and Mark M. Kataoka, Attorney.
Makram B. Jaber, Lucinda Minton Langworthy, Andrew D. Knudsen, Shannon S. Broome, Charles H. Knauss, Steven P. Lehotsky, Michael B. Schon, Leslie A. Hulsе, and Richard S. Moskowitz were on the brief for intervenors-respondents.
Megan H. Berge, Scott A. Keller, and Jared R. Wigginton were on the brief for amicus curiae American Petroleum Institute in support of respondents U.S. Environmental Protection Agency, et al., and denial of petition for review.
Before: GARLAND and WILKINS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
Concurring opinion by Circuit Judge WILKINS.
Concurring opinion by Senior Circuit Judge RANDOLPH.
Petitioner Sierra Club contends that we can and should review the SILs Guidance because it is final agency action and prudentially ripe. Respondent EPA counters that this Court lacks jurisdiction over the SILs Guidance because it is not final agency action, and alternatively, that we should not review it because it is not prudentially ripe. Although both parties advance arguments on the merits of EPA‘s interpretation of
I.
We turn first to the CAA provisions and EPA regulations that govern the SILs Guidance.
Congress enacted the Clean Air Amendments of the CAA in 1970 as “a comprehensive national program that made the States and the Federal Government partners in the struggle against air pollution.” Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). The аmendments require EPA to promulgate national ambient air quality standards (“NAAQS“) that limit the concentration of certain pollutants allowable in the ambient air people
In 1977, Congress amended the CAA to create the Prevention of Significant Deterioration (“PSD“) program. See
Although the permitting process is primarily implemented at the state level, with states issuing preconstruction permits in accordance with their SIPs and federal minimum standards, see
Pursuant to this power, in 1987 EPA promulgated a regulation outlining a set of values for states to use in determining what level of emissions does “cause or contribute to” a violation under
In 2010, EPA attempted to codify these uses of SILs for certain harmful air pollutants, including fine particulate matter (“PM2.5“), by amending paragraph (k)(2) of its regulations at
Following the remand, EPA began developing a new rule to address the flaws identified in the 2010 rulemaking, and on August 1, 2016, posted online and sought informal public comment on a new draft of
Essentially, rather than requiring every PSD applicant to conduct a full cumulative impact analysis, if a preliminary analysis shows “a proposed source‘s maximum impact will be below the corresponding SIL value,” EPA is open to a finding by the state permitting authority that such an impact “will not cause or contribute to a violation of the applicable NAAQS or PSD increment.” Id. at 17. Furthermore, in what EPA refers to as a “culpability analysis,” if a cumulative impact analysis is done anyway and “predicts a NAAQS violation,” a source whose contribution to the violation is less than the SIL for a given pollutant may be considered “not culpable for” the violation under the Guidance. Id. at 18. Permitting authorities retain the ability to require additional information, and have discretion to find that even if a proposed source‘s impact is below the relevant SIL value, there has not been a sufficient demonstration that the “proposed source will not cause or contribute to a violation.” Id. The SILs Guidance also requires that “[t]he case-by-case use of SIL values should be justified in the record for еach permit,” and that the record for any permitting decision using a SIL recommended in the Guidance should fully incorporate the information contained in the Guidance, including the technical and legal documents used in the permitting process. Id. at 19.
In the SILs Guidance, EPA described the document as the first of a two-step approach, explaining it hoped to “first obtain experience with the application of these values in the permitting program before establishing a generally applicable rule.” Id. at 2. EPA explained that after seeing how “permitting authorities use their discretion to apply and justify the application of the SIL values identified” in the Guidance, the agency would “assess, refine and, as appropriate, codify SIL values and specific applications of those values in a future, potentially binding rulemaking.” Id. at 3.
II.
A petition for review of action of the Administrator in promulgating [certain enumerated nationally applicable actions], or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this
chapter may be filed only in the United States Court of Appeals for the District of Columbia.
As the Supreme Court made clear in Harrison v. PPG Industries, Inc.,
Before explaining why the SILs Guidance is not final agency action, we pause to reiterate the proper test for finality.
In United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), the Supreme Court affirmed that the familiar two-prong test laid out in Bennett v. Spear, 520 U.S. 154 (1997), “remains finality‘s touchstone.” See also Cal. Cmtys. Against Toxics, 934 F.3d at 635 (citations omitted). Under this test, first, the action must “mark the consummation of the agency‘s decisionmaking process . . . . And second, the action must be one by which rights or obligations have been determined, or from which legal consequеnces will flow.” Bennett, 520 U.S. at 177-78 (citations and internal quotation marks omitted). Each prong of Bennett “must be satisfied independently for agency action to be final[.]” Soundboard Ass‘n, v. FTC, 888 F.3d 1261, 1267 (D.C. Cir 2018). Additionally, “when assessing the nature of an agency action, courts should resist the temptation to define the action by comparing it to superficially similar actions in the caselaw. Rather, courts should take as their NorthStar the unique constellation of statutes and regulations that govern the action at issue.” Cal. Cmtys. Against Toxics, 934 F.3d at 631.
Addressing prong one, Petitioner argues the agency‘s “intention to consider subsequently amending in the Federal Register the decisions it already definitively made in the SILs Guidance does not render those dеcisions non-final[.]” Reply Br. at 5 (citing Nat‘l Envtl. Dev. Ass‘n‘s Clean Air Project v. EPA, 752 F.3d 999, 1006 (D.C. Cir. 2014)). They point out the agency “took comments, made revisions, and produced a definitive interpretation of the statute,” arguing those actions marked the consummation of EPA‘s decisionmaking. Id. (citing Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 478-79 (2001)).
Respondent argues the SILs Guidance is not the consummation of the agency‘s process, pointing to the document‘s disclaimer that it is “neither a final determination nor a binding regulation.” SILs Guidance at 19. EPA argues the Guidance explicitly states that its issuance is only phase one of a two-step process the agency
The parties also disagree whether the SILs Guidance has “direct and appreciable legal consequences” as required under prong two of Bennett. See 520 U.S. at 178. Petitioner argues the Guidance has “immediate consequences” as it allows sources to receive permits “even where it is demonstrated they will cause, or contribute to, a violation of the NAAQS or increments — sо long as their impact is below a SIL.” Pet‘r‘s Br. at 2, 4. They also argue the SILs Guidance resolves the “purely legal” question of whether permitting authorities are authorized to exempt small air quality impacts under
EPA counters that the SILs Guidance is not final agency action as it “does not create a new and binding legal regime.” EPA Br. at 29. They argue the SILs Guidance does not represent a departure from a prior legal approach as “SILs have been used for decades, consistent with EPA regulations.” Id. at 23. And that even if the SILs Guidance does break new ground, the finality of a legal interpretation does not turn solely on whether it is “new” but whether permitting authorities are “required to adopt or implement the interpretation.” Id. at 28. Second, they argue “the Guidance is not binding in any particular permit application review, has no legal effect, and does not substitute for or reduce” individual permitting authorities’ discretion. Id. at 24. They argue the document merely provides technical and legal advice and that authorities retain “discretion to use other values that may be justified separately,” including values lower than those EPA recommends; or they may elect not to use SILs at all. Id. at 30 (quoting SILs Guidance at 19-20). In response to the Petitioner‘s specific examples in the Hitt Declaration, EPA responds that “Petitioner does not show that the Guidance is written or has been applied in a binding manner,” id. at 27, and the fact that some permitting authorities may have chosen to use the Guidance does not establish that it is legally binding overall, id. at 32. Finally, they argue the SILs Guidance does not authorize a determination that any specific proposed source will not cause or contribute to a violation because the legal requirements of the CAA and other EPA regulations, including the “demonstration” requirement of
Whether an agency action has “direct and appreciable legal consequences” under the second prong of Bennett is a “‘pragmatic‘” inquiry. Hawkes, 136 S. Ct. at 1815 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). And as we recently emphasized, courts should “make prong-two
In Hawkes, the Court held, in part, that the agency determination at issue had direct and appreciable legal consequences (or actual legal effect) beсause if petitioners failed to heed the determination they did so at the risk of significant criminal and civil penalties under the statutory regime. 136 S. Ct. at 1815. Hawkes relied on a long line of cases illustrating a pragmatic approach to finality by focusing on how agency pronouncements actually affect regulated entities. Id. (citing Sackett v. EPA, 566 U.S. 120, 126 (2012) (holding that the agency action at issue satisfied Bennett prong two because it exposed petitioners to double penalties in a future enforcement proceeding and limited their ability to obtain a certain type of permit); Abbott Labs., 387 U.S. at 152 (holding that the action at issue had a “sufficiently direct and immediate” impact on petitioners, such that judicial review was approрriate, because noncompliance risked “serious criminal and civil penalties“); Frozen Food Express v. United States, 351 U.S. 40, 44 (1956) (same)).
We have continued to affirm this approach, most recently in Valero Energy Corporation v. EPA, 927 F.3d 532 (D.C. Cir. 2019) and California Communities, 934 F.3d at 637. In Valero, we held, in part, that after analyzing the letter in question under the relevant statutory regime (1) the guidance imposed no obligations, prohibitions, or restrictions; (2) it put no party to the choice between costly compliance and the risk of a penalty of any sort; (3) EPA acknowledged at oral argument that the guidance had no independent legal authority; and (4) the relevant statute provided regulated parties a mechanism by which to challenge any EPA action that was premised on the statutory interpretation that the guidance advanced. 927 F.3d at 536-39.
In California Communities, we found, in part, that the memo at issue was not final where (1) neither EPA nor regulated sources could rely on it as independently authoritative in any proceeding; (2) state permitting authorities faced no penalty or liability of any sort in ignoring it; and (3) state permitting authorities and regulatory beneficiaries had clear avenues by which to challenge a permitting decision adopting the reasoning of the memo. 934 F.3d at 638.
Assessing the SILs Guidance under Hawkes and in accordance with Valero and California Communities, we find it is not final agency action. Given the specific nature of the statutory regime, the SILs Guidance imposes no obligations, prohibitions or restrictions on regulated entities, does not subject them to new penalties or enforcеment risks, preserves the discretion of permitting authorities, requires any permitting decision relying on the Guidance be supported with a robust record, and does not prevent challenges to individual permitting decisions. The SILs Guidance is not sufficient to support a permitting decision — simply quoting the SILs Guidance is not enough to justify a permitting decision without more evidence in the record, including
Paramount in this decision is the amount of discretion permitting authorities retain after publication of the SILs Guidance. In Catawba County, this Court found an agency memo nonfinal where it did not “impose binding duties on states or the agency. [but] merely clarifie[d] the states’ duties under the [CAA] and explain[ed] the process EPA suggests,” noting those views were open to revision. 571 F.3d 20, 33-34 (D.C. Cir. 2009). Similarly, the SILs Guidance imposes no obligations, prohibitions, or restrictions, and “compels action by neither the recipient nor the agency.” Holistic Candlers & Consumers Ass‘n v. FDA, 664 F.3d 940, 944 (D.C. Cir. 2012); see also Valero, 927 F.3d at 536. During this initial information-gathering phase, permitting authorities can choose to reference the values outlinеd in the SILs Guidance, to develop and justify their own SILs, or even to ignore the Guidance entirely. See SILs Guidance at 19-21. The SILs Guidance explicitly preserves state discretion regarding what degree of modeling or analysis may be necessary for each petition and does not require states to review their programs or take any proactive action in response. See SILs Guidance at 3. The states have not been given “marching orders” and are not expected to “fall in line,” see Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (finding guidance final where it required state permitting authorities to search for deficiencies in existing programs and to take action if any werе found, id. at 1022), but retain discretion to utilize the SILs Guidance or maintain the status quo in their individual permitting programs.
Petitioner also points to a line of cases which incorporate the analysis of Ciba-Geigy, 801 F.2d 430 (D.C. Cir. 1986), a ripeness case which this Court has described as “complementary” to Bennett. Reckitt Benckiser, Inc. v. EPA, 613 F.3d 1131, 1137 (D.C. Cir. 2010). These cases focus on whether the agency action at issue (usually a preenforcement letter threatening action if the regulated entity does not change a certain behavior) has a practical effect on regulated parties, even if the action itself has no formal legal force. See, e.g., CSI Aviation Servs., Inc., 637 F.3d at 412 (concluding the agency action was final because it “imposed an immediate and significant practical burden” by forcing the company to choose between conforming to the agency‘s demand or facing civil and criminal penalties); Nat‘l Ass‘n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005) (“Finality resulting from the practical effect of an ostensibly non-binding agency proclamation is a concept we have recognized in the past.“); Clean Air Council v. Pruitt, 862 F.3d 1, 4, 7 (D.C. Cir. 2017) (finding a stay of portions of a rule final agency action because it relieved regulated parties of any obligation to comply with monitoring requirements, eliminating the threat of civil penalties, citizens’ suits, fines, and imprisonment for noncompliance). However, the SILs Guidance is nonfinal even if we look to this line of cases and considerations as it does not subject regulated entities to the same level of practical consequences present in Ciba-Geigy or CSI Aviation. See also Valero, 927 F.3d at 537 (“We need not explore the potential tension between those lines of decisions because the EPA document is nonfinal even if we take into account its practical consequences.“).
Since a finding that the second prong of Bennett is lacking is enough to render an agency action non-final, we need not reach Petitioner‘s arguments under the first prong. See Soundboard, 888 F.3d at 1267; see also Sw. Airlines Co. v. U.S. Dep‘t of Transp., 832 F.3d 270, 275 (D.C. Cir. 2016).
The petition is hereby dismissed.
WILKINS, Circuit Judge, concurring: In order to prevent a patchwork of regional interpretations of nationally applicable agency actions,
There is no question here that the SILs Guidance is “nationally applicable,”
The Sierra Club contends that the SILs Guidance violates the CAA because it “allow[s] construction of a proposed source if the source shows its individual air pollution impact is less than a SIL, without looking at whether a NAAQS or increment violation will actually occur or worsen.” Pet‘r‘s Opening Br. at 20. We cannot reach that argument today, because the SILs Guidance presents a curious form of agency action — nationally applicable guidance that is not final agency action at thе time of publication but that may be relied upon later to justify a permitting decision, which is final agency action. But when that future permitting decision is made, the question naturally will arise — which court has jurisdiction to review it? The answer of course depends upon the precise circumstances of the permit and the challenge, but I write separately to point out that if such review involves resolving a substantive challenge to the validity of the SILs Guidance similar to the one Sierra Club presses here, then review must occur in this Court.
The EPA is certainly free to make nationally applicable policy, such as the SILs Guidance, via adjudication of individual permits rather than in one fell swoop via a rulemaking proceeding. While agencies usually promulgate policies through binding guidance or regulations, it is long settled that an agency may also choose to enact interpretations of law or make administrative policy through adjudication. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 201-03 (1947); see also Hoopa Valley Tribe v. FERC, 629 F.3d 209, 212 (D.C. Cir. 2010) (upholding agency policy adopted in an adjudication); NetworkIP, LLC v. FCC, 548 F.3d 116, 123 (D.C. Cir. 2008) (stating an agency may make “policy choices through adjudication” and give the decision retroactive effect). “Most norms that emerge from a rulemaking are equally capable of emerging (legitimately) from an adjudication, and accordingly agencies have very broad discretion whether to proceed by way of adjudication or rulemaking.” Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir. 2007) (internal quotation marks and citations omitted).
Although administrative law in the adjudicative context softens the formalism of strict stare decisis, an agency‘s adjudicative body engaged in policymaking must still adhere to its precedent in deciding cases. See Hatch v. FERC, 654 F.2d 825, 834-35 (D.C. Cir. 1981). Presumptively bound by precedent, an agency may, within the realm of its statutory authority, change the established law and apply newly created rules “in the course of an adjudication, so long as the agency acts pursuant to delegated authority, adopts a permissible construction of the statute, and adopts a rule that is not arbitrary and capricious.” Consolidated Edison Co. of New York, Inc. v. FERC, 315 F.3d 316, 323 (2003); see Hatch, 654 F.2d at 835-37; see also NAACP v. FCC, 682 F.2d 993, 998 (D.C. Cir. 1982). While eschewing a doctrine of binding precedent, administrative law retains a balanced requirement of consistency dictating that, in general, like circumstances should be treated alike. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 770-71 (1969) (Black, J., concurring) (“If the agency decision reached under the adjudicatory power becomes a precedent, it guides future conduct in much the same way as
The Environmentаl Appeals Board (“EAB“) is the agency body that could establish EPA policy with respect to the SILs Guidance. Established by regulation in 1992, the EAB creates a body of precedent upon which it, hearing officers, EPA, and the regulated community rely. See
Should an EAB decision pass on such a substantive challenge to the SILs Guidance, review must be held in this Court, since the SILs Guidance is by its nature nationally applicable, EAB decisions are precedent fоr future parties and regulated entities, and the EAB decision would be, at a minimum, persuasive authority for every future permit issuance in the nation. See Appalachian Power, 208 F.3d at 1021 n.10 (“Our jurisdiction extends to ‘any . . . nationally applicable... final action taken by the EPA.‘” (quoting
And adjudication by the EAB is not the only forum in which EPA might take nationally applicable final action with respect to the SILs Guidance. For instance, EPA‘s Administrator “may determine that [an] otherwise locally or regionally applicable action has nationwide scope or effect and publish his finding,” requiring review in this Court. Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019) (citing
RANDOLPH, Senior Circuit Judge, concurring: I concur in the majority opinion. As to Judge Wilkins’ separate concurring opinion, I see no reason to decide what we would decide if only the case before us were a different case.