*3 by removing hydrogen duction wells sul- OPINION fide so that the can be used. Summit SUHRHEINRICH, Circuit Judge. production owns all of the wells and the This case arises from a final action of pipelines subsurface that connect each of Agency sweetening plant. Environmental Protection the wells (Title V), §§ 7661- U.S.C. over an area the CAA are located themselves
wells 7661f, operating permit establishing forty-three square miles approximately regulate sources program from the varying distances —from imposing than new pollution. air Rather away eight miles feet to —and five.hundred require- air quality control substantive property be- not own the does ments, supplements the CAA prop- or the well sites tween individual pollution of air requiring regulated sources the plant. the wells erty between include operating permits obtain a common well sites share None *4 limitations, standards, monitoring emission other, any nor do of boundary each schedules, and requirements, compliance boundary a share common the well sites necessary to com- other conditions assure Flares production plant. with Summit’s 42 U.S.C. pliance with the CAA. See by operations part plant work as 7661c(a); 7661a(a), §§ Interest Ohio Pub. to gas natural waste relieve burning off Whitman, Grp., 386 F.3d Research Inc. gas equipment. collection pressure (6th Cir.2004). “[sjtates Although 794 approximately flare is located The closest re- governments ‘primary and bear local from while the plant, half-mile one ” reg- sponsibility’ administering Title V remaining over one 'mile flares each ulations, Whitman, (citing F.3d 386 at 794 away. 7401(a)(3)), § 42 certain circum- U.S.C. sweetening plant majority and the The the EPA itself to permit require stances or production and gas wells of Summit’s promulgate regula- and Title establish territory within the flares located state in lieu of the EPA-approved tions Indian Michigan’s Saginaw Chippewa plans. EPA-ap- In the of an absence The Tribe’s Isabella Reservation. sweet- territory Indian lo- proved plan regulating wells, ening plant, gas production and state, given example, a cated within and ox- flares emit sulfur dioxides nitrous federal implement EPA is to a authorized ides, subject regulation air to pollutants juris- plan air control within that quality (CAA). plant Air Act The under Clean 7601(d)(4). case, § In diction. emits, emit, has potential alone or to jurisdiction regulate to EPA has asserted just pollu- under hundred tons of these one territory the State of Michi- Indian within per tants Each flare and each well year. including Saginaw Indi- gan, Chippewa emit, emits, potential or has the to site See, e.g., Isabella Reservation. Tribe’s How- pollutants. much lower amounts Quality Promulgation of Air Approval ever, if the emissions of sulfur dioxide Plans; Michigan; PSD Implementation any well production from one plant (PSD 73 Fed. Regulations Regulations), combined, they to would exceed were be 2008) (to 53,366 (Sept. be codified Reg. per year. tons of pollutants one hundred 52) pt. (“Michigan at is not 40’ C.F.R. carry Federally ap- to out its authorized Permitting B. Title V Country,’ proved program in ‘Indian as air Program 1151.”). dеfined 18 U.S.C. CAA, 42 Congress passed
In requires every “major source” of Title V 7401-7671q, §§ en- protect operating “to air a pollution U.S.C. obtain Title V 7661a(a). § Nation’s air re- The EPA’s quality permit. hance the 42 U.S.C. promote public plan health a sources so as Title V defines source of productive capacity “any facility and the or welfare include 7401(b)(1) emits, directly or § air which has population....” pollutants its U.S.C. (2006). emit, per one hundred tons Congress potential enacted year pollutant,” including major source, nitrous to constitute it a but “if (the pollutants sulfur oxides and dioxides potential emissions from sour gas pro- operations). emitted Summit’s See duction wells are gas included with the § 7602©; see also 40 C.F.R. U.S.C. emissions, sweetening plant the aggregat- “stationary § 71.2. The defines a ed may sources combined be considered structure, “any building, source” facili- single major pollutants, source for criteria ty, may or installation which emits emit namely nitrogen oxides and sulfur diox- pollutant.” regulated C.F.R. [air] ides.” request suggested 52.21(b)(5). Multiple pollutant-emitting of its aggregation facilities would im- be activities, sweetening such as Summit’s First, proper for two principal reasons. wells, and sour can production great Summit’s wells were “located dis- aggregated together and considered a from production facility tances on en- structure, “building, facility, installa- tirely tracts, different leases and surface i.e., tion,” source, single stationary under sites,” making them contiguous neither nor (1) *5 only they: Title if V are under common Second, to one another. the EPA (2) control; “are located one or on more not distinguished had between the defini- or contiguous adjacent properties”; and a tion of “facility” found in its hazardous (3) belong to same major industrial (HAP) pollutant air regulations from the § If pollu- 40 C.F.R. 71.2.1 the grouping. “facility” definition of a for pollu- criteria tant-emitting satisfy any activities fail to (Title V) tant purposes. The HAP criteria, they one these of three are consid- regulations specifically aggre- considered stationary separate ered sources and their gation multiple facilities the oil and aggregated emissions cannot be to meet gas industry and concluded that aggrega- major source for which a threshold improper: tion was “Emissions from required. Title permit V gas well, oil or exploration production or Major C. Source Determination with equipment, Cor- its associated and emis-
respondence Between any pipeline sions from compressor or and the EPA station pump shall not be aggregated with units, emissions other similar January 2005, Summit, together from or contig- not these are in a units Michigan Department of Environmen- uous area under common control....” See Quality (MDEQ), tal a request submitted II, Control, Article Part Air Pollution to the EPA to determine whether Sum- Michigan Natural and Resources mit’s facilities met the definition of a Title Act, Environmental pollution.2 Protection 1994 PA V source of air Summit’s (Act 451), request correctly as amended noted that emissions and 1980AACS (Rule 211) added). plant from R sweetening its were insufficient 336.1211 (emphasis group stationary belong 1. A applicability to the sources determination of Part grouping they same industrial if share a two- particular facility. to a theAt time of the (SIC) digit Standard Industrial Classification parties' request, determination Summit was code, type code a used determine the operating plant under its a Permit to Install activity engaged. in which the facilities are MDEQ (No. 632-821) by issued under Michi- § 71.2. The SIC C.F.R. manual available Act, gan's Air Pollution Control Part 55 of http://www.osha.gov/pls/imis/sic_manual. and Natural Resources Environmental Pro- html. Act, (Part § seq. tection M.C.L. 324.5501 ef 55), Michigan’s Implementa- and CAA State provides 71.3 an owner C.F.R. that Plan, R. tion 1980 AACS 336.1201. operator may of an a emission source submit request a written to the EPA for administrator on the infor- The EPA found based to Summit’s source responded EPA The by request, provided mation Summit’s April on request determination plant undisput- asserting jurisdic- wells were production confirming that it was owned, edly commonly of the same part facilities within regulate tion to on stating but that it located grouping, industrial the Isabella Reservation Accordingly, if the sites. contiguous conclude wells surface was “unable to Title single source for it “must evaluate agency constituted a concluded (i.e., distinguished its or close- EPA nearness adjacency, purposes.” V ness) maintaining gas the sweeten- regulations, and HAP of the sour wells to facilities could be ing plant” to determine whether Summit’s pollutant-emitting single stationary a station- a single to constitute faсilities constituted aggregated if operated subject regulation. Although ary source under Title source control, .were located wells production common noted that “because under sweetening and be- adjacent properties, supply gas gas to the contiguous It grouping. industrial meet the longed plant, to the same we believe the sites procedure proper notion of the EPA plant,” then identified the common sense determining source found that Wehrum Memorandum gas industry, outlined in an proximity the oil and clear that is the most “makes memorandum issued deter- guidance making formative factor involving Administrator William oil activities.” Acting Assistant mination *6 Finally, requested the EPA additional Wehrum: map of facilities formation —a Summit’s sites, 1) Identify the surface processes and a schematic its 2) each individual Evaluate whether the connection between Summit’s showed separate a site sta- qualifies surface “exploration production and activities”—to tionary source, if the emissions activi- or reaching assist a it decision. together to form grouped ties should be (i.e., if stationary their a source emission informa- provided requested Summit control, be- activities are under common 24, In tion dated April in a letter major group- to the industrial long same letter, agreed that under the Summit adjacent), and are and ing, contiguous Memorandum, proximity Wehrum was 3) stationary more Aggregate two or deter- making most factor source crucial they if are under сommon con- sources industry. gas for the oil and minations in proximity trol and are located of each Summit reminded EPA of the Wehrum other.3 re- Memorandum’s additional comments Wehrum, factor, proximity e.g., L. garding Memorandum from William Adm’r, that it Acting Reg’l position I- EPA’s was unreasonable Assistant Adm’rs (Jan. 2007) 12, production and field activi- http://www. aggregate X available wells dis- eenews.net/public/25/12769/features/ large geographic ties that “occur over processing documents/2009/10/13/document_pm_02. tances with downstream (last 2012) (Wehrum 16, plant single stationary a source.” See pdf May into visited Memorandum). concepts Summit submitted that the id. and, infra, notwithstanding sug- appears, express that prac- 3. Before Court tice, gestions conducting styles regards guidance Title the EPA and its for therein, non-binding, analyses actual de- advisory doc- source contained memorandums as case-by-case, are to be made on the Wehrum Memorandum terminations uments. Both Memorandum, situational, particularized and bases. McCarthy and the discussed permit and should as- information on contiguousness gather conditions other making land with the for sources before sess “whether the associated final determination. to, source pollutant-emitting activity is connected nearby, land associated with another 1. The EPA determines Summit’s pollutant-emitting activity.” support, In facilities to be again to the Wehrum pointed under Title V. Memorandum, which that “[a] advised re- 8, 2009, September On EPA issued its viewing authority can consider two surface sweetening determination that Summit’s if proximity they sites to in close plant and sour wells constituted a sin- physically adjacent, separat- or if source, gle stationary and were therefore a than by (e.g., ed no more a short distance major source, Title EPA under V. The did by highway, separated city across a Sum-, explain decision, the basis for its save distance).” block or some similar citing prior April 26, for production mit noted its wells April 2009 letters to Summit. Shortly larger separated were much dis- decision, after the EPA issued its it for- contemplated by tances than those a September warded Summit Wehrum Memorandum and reiterated its guidance prepared by memorandum request that EPA not consider them a Air Office of and Radiation Assis- single stationary source under Title V. McCarthy tant Gina Administrator entitled July the EPA responded that “Withdrawal for Source Determinations supplemental even materi- with Summit’s Oil (McCarthy Gas Industries” als, it again conclusively was unable to Memorandum). See Memorandum from determine whether Summit’s facilities com McCarthy, Adm’r, Gina Assistant to Reg’l single stationary stituted a source. Admr’s I-X Regions 2009), (Sept. emphasis addressed available at http://www.eenews.net/public/ Wehrum Memorandum and stressed that *7 25/12769/features/doeuments/2009/10/13/ physical only proximity was not the factor (last 16, doeument_pm_01.pdf May visited determinations, in adjacency stating that 2012). In pertinent part, McCarthy the “generally, EPA the determines whether Memorandum simplified reasoned that the ‘adjacent’ two facilities are on a based apprоach Memorandum, Wehrum the ‘common notion of a sense’ source and the emphasis physical on proximity in facilities, functional interrelationship of the the of what determination constituted a rather than on simply physical the distance source, stationary longer appropri- was no between the facilities.” The EPA conclud- McCarthy ate. The Memorandum called by requesting ed that Summit it contact as permitting “rely authorities to instead possible soon as to further “discuss the foremost on three regulatory the criteria requirements the ... permit for aggregating multiple emissions from applications for sources located tribal sources, (1) ... whether the activities are lands.” (or under the of the person control same parties engaged The in a conference call (2) control); person under common wheth- Summit, July According 2009. er activities are located on or more one EPA that it might longer (3) indicated no be contiguous properties; using guid- the Wehrum Memorandum whether the belong activities same ance in Summit’s source determination. industrial grouping.” (citing 40 C.F.R. 52.21(b)(6)). The EPA investigate said would guidance § The memoran- status of the Memorandum Wehrum and dum nevertheless conceded that evidence to demonstrate that be made on should
source determinations
cases,
“truly
sources
not
interde-
“in
emissions
were
case-by-ease
and that
some
basis
The EPA thus
overwhelming pendent.”
concluded
may
as the
‘proximity’
serve
given
interrelationship,
authority’s
this
functional
permitting
factor in a
not
consid-
Summit’s facilities “should
decision.” Id.
determination
separate emission sources.”
ered
8,
September
to the EPA’s
response
Re-
filed a
Petition for
determination,
Summit
second
filed its initial
Summit
18, 2010.
in this Court on October
on view
for Review with
Court
Petition
denied,
2012,
opposed,
The EPA
and this Court
4,
January 5,
2009.
November
On
to intervene filed
American
EPA
motion
request-
a letter to the
Summit sent
(API).
Petroleum Institute
This Court
stay
an
of the
ing
administrative
deadline
granted
unopposed
motions of API and
imposed
had
on Summit to obtain
the EPA
Exploration and Production
American
permit
a Title
so
operating
(AXPC)
Amici)
(collectively
to sub-
Council
additional information for the
could submit
mit
briefs in the case.
amicus
granted
consideration.
request
parties
submit-
Analysis
II.
abeyance
joint
ted a
motion for
to this
4,
grant-
This Court
Review
Court on March
A. Standard of
2010,
holding
on March
ed
motion
307(b)
CAA,
Section
abeyance
vacating
case
7607(b),
§
specify
does not
a stan
U.S.C.
parties
to allow the
time
briefing schedule
judicial
of an EPA final
dard for
review
their
is-
pending
to resolve
administrative
this Court
Accordingly,
action.
reviews
sues.
EPA’s source determination under
18, 2010,
judicial
provisions of
On
the EPA sent
review
the Adminis
October
(APA).
confirming
final
trative
Act
Summit a
letter
that even
Procedure
U.S.C.
706(2)(A).
information,
Dep’t
supplemental
See Alaska
Envtl.
with Summit’s
E.P.A.,
the EPA
facilities a
496-
considered Summit’s
Conservation
(2004).
source,
single stationary
and thus a
volved a “rational connection between the “adjacent” unambigu- the term is facts found and the choice made.” Motor ous. U.S., Vehicle Ass’n Inc. v. Mfrs. Co.,
State Mut. Farm Auto. Ins. Summit argues that the term “ad 29, 43, 2856, 77 L.Ed.2d 443 jacent,” both generally and as it appears (1983). in the regulatory requirement that aggregated activities be “located con relatively
The issue the instant case is tiguous properties,” unam is Summit, EPA, straightforward. biguous. The EPA disagrees, submitting, agree Amici EPA has properly alia, “adjacent” inter that the term is un jurisdiction regulate exercised to the tribal questionably ambiguous because the EPA lands on which Summit’s facilities lo- has never specific physical defined a dis They agree produc- cated. that Summit’s by it tance which is defined with which plant tion and sour gas wells are common- is simultaneous. Resp’t See Br. at 30 ly major owned share industrial (connecting premise parts grouping, satisfying two of the three- ambiguous because it lacks a definite dis part test for source under the tance with the ap conclusion that “[a]s permitting program. EPA’s Title Y All plant operations to plied that vary enor parties agree further Summit’s if mously across the different industries aggregated and wells are into a sin- regulated [CAA], “adja term [the gle stationary source, the total emissions ambiguous cent”] at minimum as to from this source exceed would the thresh- whether emissions that are part units required old for a stationary source integrated operation industrial and lo source, considered and 500 feet roughly eight cated miles required would be obtain a apart may be to be considered located on permit regulate its emissions of criteria ”). ‘adjacent’ properties.... pollutants. Finally, parties agree production plant and sour dictionary We conclude that both i.e., “contiguous,” wells are not located on etymological history definition and *9 bordering, properties. Undisputedly, “adjacent,” term as applicable well as case sole disputed issue us before is whether law, support Summit’s position. “adjacent” to Summit’s facilities are one
another, converting a dictionary thus them into sta- 1. The definition source, source, tionary “adjacent” and a implies under physical proximity. Title V. Amici, Court,
Together argues well, This and as have others the EPA’s conclusion that Summit’s often consulted dictionaries to ascertain See, “adjacent” they activities are meaning e.g., because are of words. Terrell (6th (search: (last 442, “adjacent” “jet”) States, visited F.3d Cir. United 2012). 16, Thus, 2009) Corp. literally, v. AT May quite Telecomms. two (citing MCI 2223, Co., 218, 225, adjacent they are if have been things T & (1994)). “throw[n], Our research L.Ed.2d 182 cast ... ... in relation down to ” agree dictionaries that two gener- satisfiеs us ... in space.... [one another] See adjacent are they when entities are Etymology Dictionary, supra. ally Online to, to; ... ad lying [n]ext near “[c]lose they argues though The are Heritage Dictionary of joining.” American incorrect, provide not dictionaries an in- English Language, available at www. “adjacent,” definition of and that complete (search (last “adjacent”) ahdictionary.com the functional two interrelationship of fa- 2012). 16, The EPA does not May visited physi- be cilities must considered because locate, any cite, authority nor we could meaningless cal is con- distance without “adjacent” in suggesting that the term (“It Resp’t only at 27 text. See Br. is an of the functional rela vokes assessment examining the relative context that a rea- See, e.g., tionship between two activities. can as sonable determination be made to Dictionary, at available Merriam-Webster objects ‘proxi- two are whether ‘close’ (search adja www.merriam-webster.com another.”). to one notion that mate’ The (last cent”) 2012) (“not May visited adjacency expands and contracts with con- nearby city adjacent <the distant: text, is, it true as must be overextend- >; a having endpoint or suburbs common instance, certainly ed. first it is ...; <adjacent immediately lots> border adjacent that two be correct states could following); preceding or Oxford Dictionar country, another in one the context of ies, available www.oxforddictionaries. just be (search adjacent as twо houses could (last “adjacent”) May com visited noted, 2012) of a It (“next neighborhood. context is something to or adjoining however, rooms; the contextual element of else; adjacent adjacent area ”). space the overall within which one asks station fire two things does not etymology Even the of the term belies fundamentally change the physical and position the EPA’s that the term’s defini- geographical question. nature of the partially tion is based on contex- even an impermissible illogical EPA makes relationship, opposed geo- tual to the stretch when states that one must ask Here, location, graphic of two activities. purpose which two activities exist study our reveals that the word adja- order to consider whether originated early century in the fifteenth Resp’t cent to one another. Br. at 26-27 syllables from the combination of “ad” (“A prop- distance of one mile two between “jet.” Etymology Dictionary, Online may sufficiently be small erties considered (search www.etymonline.com available at close to each other if (last 2012). driving one “adjacent”) May visited them; trying if between not so one is “prefix expressing “Ad” is a direction to- other.”). one to, throw softball from to the to, ward or in addition ... with regard ” Whether the two facili- ... distance between in relation to .... space [or] time (search “ad-”) (last given relationship ties enables to exist May visited 2012) added). concept them immaterial between to the (emphаsis As incorporated “adjacent,” merely ques- “jet” implies answers verb —it *10 activity in a tion of whether a certain can or resulting physical action certain rest- throw, ing place object: an “to ... cannot occur between two locations that for cast ” (oneself) were, regardless with notion of ‘to cast down.’ Id. and will continue to be of
743
host the activity, physically
persuasive
most
authority comes
physically adjacent.
distant or
from
Supreme
Court’s
in
decision Ra
States,
v.
panos
715,
United
547 U.S.
126
supports
law
understanding.
Case
this
2208,
(2006).
165
S.Ct.
L.Ed.2d 159
Simi
case,
lar to
Rayanos
reg
concerned a
supports
2. Case
the idea
law
ulation enacted
agen
administrative
adjacency
only
relates
cy,
Army
Corps of Engineers (Corps),
physical proximity.
interpreting Congress’ legislation in the
specifically
Several cases
address wheth
(CWA).
Clean Water
723-24,
Act
at
“adjacent”
er
the term
is ambiguous.
navigable
conclusion,
hold that
EPA
added).
of this
we
the
(some
Finally, the
emphasis
2208
interpreted
regulatory
has
its own
term
ambiguous
“[h]owever
that
Court noted
unreasonably
a manner
inconsistent with
abstract, ‘adjacent’
the
may
be
term
plain meaning
its
and vacate
EPA’s
ambiguous
‘physically
...
between
not
is
”
hereby
source determination
di-
748,
‘nearby.’
merely
at
abutting’ and
recting
aggrega-
the EPA to reassess
126
S.Ct.
tion of Summit’s facilities under the ordi-
ordinary
and dictio-
with
Together
nary
requirement
of its
understanding
“adjacent,” the
nary
of the term
definitions
that Summit’s
and wells be located
law,
decision,
Rapanos
and similar case
i.e.,
adjacent,
physically proximate,
on
the conclusion that
points clearly toward
properties.
aggregat-
requirement
the regulatory
contiguous
ed
be “located
activities
interpreta-
1. The
unreasonable
EPA’s
adjacent
unambiguous
is
in the
properties”
heightened
is
tion
not entitled
defer-
here
it
is
considered.
context
in which
mеrely
longstanding.
ence
because it is
reasons,
adopt
we
this
foregoing
For the
conclusion,
The EPA
claim
opposes
position.
it
ing
because
has
established his
tory of
supplementing
traditional defi
interpretation
C. The EPA’s
nition of
the concept
with
of
“adjacent,” to which no def-
term
relatedness,
activities’ functional
we must
contrary
owed, runs
erence is
heightened
its
interpretation
review
meaning.
plain
Resp’t
(citing
deference.
Br. at 31-32
Having determined that
the word
Conservation,
Dep’t
Alaska
Envtl.
no
unambiguous,
apply
is
we
487,
U.S. at
(stating
S.Ct.
in
in our review the EPA’s
deference
particular
“normally
courts
accord
defer
Christensen,
terpretation of it.
529 U.S.
interpretation
‘long
ence to an
agency
Instead,
588,
must
nsrmemos/amersoda.pdf
May
visited
2012)
error,
(“distance
tive
the dissent contends that ‘the
does not pre
alone”
appropriateness
Corps’ 30-year
thirty-five
forty
clude mine and
implementation of the Clean
Act
apart
by pipeline
but
be
Water
miles
connected
given
Congress
should be addressed
or the
ing
considered
“inte
facilities”);
Corps rather
to the
gral
Judiciary.’
connectedness of
than
the[]
(EPA
Gil,
(2001)
guidance
Surely
principle
et al.
Forest
is novel
admin-
*13
Ass’n,
42-43,
at
adverse
463 U.S.
103 S.Ct.
30-year
of
law—a sort
istrative
Here,
if
the
of
even we
to find that
disregard
were
insulates
possession
It
“adjacent”
ambiguous,
was
we would
judicial
from
review.
word
statutory text
ju-
the
interpretation
in our
find that
of
deservedly
precedent
has no
still
EPA’s
requirement
Title
regulatory
its
V
risprudence.
stationary
on
single
sources are located
126 S.Ct.
547 U.S. at
Rapanos,
adjacent
was
“contiguous
properties”
omitted).
(internal
Rapa
Like
сitations
(1)
entirely
regula-
inconsistent
the
with:
nos,
may not
agency
that an
we conclude
tory history
permitting plan;
of its Title V
merely be
itself from correction
insulate
(2)
guidance
its own
memorandums
not
corrected soon
it has
been
cause
application
the
its Title V
regarding
is
an
longstanding
for a
error
still
enough,
industry.
the
regulations
to
oil and
argu
thus
the EPA’s
reject
error. We
inter-
would thus
that EPA’s
We
conclude
have little hesi
contrary
to the
ment
Auer,
under
pretation was unreasonable
first
taking
in
opportunity
tation
this
—the
in
be the
and our decision
this case would
in the EPA’s
given
has been
our Court
same.
history
executive er
own
of “entrenched
the
unreasonable
agency’s
ror”—to vacate
interpretation
1. The EPA’s
is incon-
interpretation
permitting
of its Title V
regulatory
histo-
sistent with
plan. Id.
ry
plan.
of its Title V
Assuming arguendo
term “ad-
D.
regulatory
On the issue
the EPA’s
jacent”
ambiguous,
is
the EPA’s
V,
history interpreting
we first note
Title
interpretation
is
inconsistent
the EPA’s refusal
incongruity
between
regulatory history
with
relationship
include a functional
test
to
plan
Title
EPA-
and the
Y
stationary
its
single
analysis and
its
guidance
issued
memorandums.
cannot be
position
analysis
current
its
Although
unambiguous-
we
consider
it.
without
completed
regulatory
term
ness
In order for
activities to be
multiple
clear, we
that our hold-
quite
be
conclude
“building,”
considered a
together
if we were to
ing would be
same even
“structure,”
“facility,” or “installation”
regula-
the EPA’s
that its
accept
argument
meaning
Title
of the EPA’s
within
ambiguous.
tion is
(1)
the activities must:
be under
plan,
(2)
control;
contigu-
its
located on
agency interprets
Where
common
(3)
belong
ambiguous regulation,
properties;
we credit
ous or
own
Auer,
grouping.
the same
interpretation
great
deference.
industrial
Indeed,
§
at
71.2. The EPA first established
519 U.S.
ness” be
relat-
use
assessment
functional
its deci-
is immaterial because
source test
(even in
own
edness is reasonаble
a stand-alone factor
not to use this as
sion
view). Ultimately, the EPA has failed to
its use of
con-
is not inconsistent
why
us
the criterion it consid-
convince
supplement
to its
anal-
as a
cept
ered,
strongly rejected,
then
is now
ways,
neither Title
ysis.
least two
ability
adequate
dispensable to its
to make
nor
sense
history
common
regulatory
Vs
determinations.
position.
the EPA’s
supports
conclusion,
foregone
given
the absence
First,
considered
the fact that
procedures amending
notice and comment
ownership
prox-
adding to
tests of
plan
to include an as-
functional relatedness
imity with
test of
*15
activities’
related-
sessment of
functional
fac-
its
contention that the
belies
current
ness,
EPA’s
test is
is that the
current
functional
proximity
and
related-
tors
practice completely inconsistent with
one
EPA ad-
ness are
in the same.
wording
regulation.
of its own
it
Alabama Power’s
mits
retained
test,
proximity
and
suggested ownership
interpretation
2. The EPA’s
only
seeking
a third test
reduce the
inconsistent with its own
is
stationary
single
number of
sources
guidance memorandums.
of a
representative
plant.
those
common
just
EPA’s
We next note
as the
requirement—
adopted proximity
If the
present
adjacency
is
the requirement
articulated
the EPA as
regulatory history
consistent with
on contiguous
that activities
“located
or
plan,
its
too is it
permitting
Title V
so
adjacent properties”
suggested a meas-
—
very
with the
EPA-issued
inconsistent
relatedness,
functional
ure of the activities’
guidance
EPA
memorandums on which the
would
no need to consider
there
have been
relies
instant
in the
case. As discussed
adopting
already-included
test as
supra,
first
the EPA’s
two letters to Sum-
single
prong
third
in the
source mit cited the Wehrum Memorandum as
analysis. Clearly, at least
the time the
authority
decision-making
in its
primary
adopted
stationary
regula-
source
process. The
had
Wehrum Memorandum
tion,
the EPA understood
in particular
relevance to the EPA’s
geographical,
operational,
rather
than
source
was
determination
Summit—it
terms.
guide permitting
spe-
issued to
authorities
Second, the EPA’s decision not to em-
to the
cifically on the
of Title V
application
ploy
aggregation
functional relatedness test was cate-
activities
pollutant-emitting
and
Far
gorical
unqualified.
gas industry.
from advo-
in the oil and
The Wehrum
cating
rejected
geo-
functional
the notion that
use of a
relatedness Memorandum
graphically
gas
not all
oil
natural
ac-
part
assessment as
but
of the sta-
distant
tivities
tionary
analysis,
“contiguous”
could be considered
source
EPA ex-
“adjacent:”
any
conclusion
pressed
sweeping
operational relationship
reference to the
industry,
[F]or this
we do not believe
subjec-
highly
between activities “would be
determining whether two activities
tive,” would “make administration of the
operationally dependent
the de-
drives
difficult,”
substantially
definition
more
proper-
termination as to whether two
numerous,
Agency
would burden
contiguous
adjacent,
“the
ties
because
52,-
fine-grained analyses.”
Reg.
Agency
precisely
45 Fed.
it
would embroil
analysis
fine-grained
695. This
condemnation
heavi-
we intended
broad
cuts
avoid,
potentially
and it would
lead to the
belong
activities
to the same industrial
results which do not adhere to the com- grouping.”
(citing
40 C.F.R.
sense,
52.21(b)(6)).
plant....
mon
notion of a
Given
supra,
As discussed
gas
nature of the oil and
McCarthy
the diverse
Memorandum concedes that at
activities,
that proximity
we believe
is
case-by-case
end
analysis, prox-
in making imity
the most informative factor
may well be
overwhelming
source determinations for these indus- determinative factor.
If
McCarthy
tries.
says
Memorandum
anything about includ-
ing supplemental
unexpected
factors
Memorandum, supra.
Wehrum
We need
in the
analysis,
not strain to
conclude
the EPA’s
against
cautions
it.
Summit, in
source determination for
which
admittedly
the EPA
that aggrega-
found
dispute
There
some
par-
between the
tion of
sweetening plant
Summit’s
and ties as to which of the EPA’s letters de-
appropriate despite
sour
wells was
claring
and wells a single
their physical separation,
patently
incon-
stationary source was the EPA’s “final
guidance.
sistent with this
agency determination.”
argues
While the EPA
withdrew
Wehrum that
the EPA’s
*16
correspon-
October 2010
Memorandum and issued
McCarthy
the
dence was a mere reiteration of its final
shortly
Memorandum
before
final
the
iter-
September 2009;
thus,
determination in
single
ation of its
contends,
source determination for Summit
the Wehrum Memoran-
Summit, McCarthy
the
Memorandum
applied
does dum
to the EPA’s decision and its
support
analysis,
the EPA’s
emphasis
either.
physical
on
proximity in the ad-
sure,
To be
the McCarthy
jacency
Memorandum
analysis should have caused Sum-
criticized the Wehrum Memorandum’s em- mit’s facilities to
separate
be considered
phasis
physical proximity, noting
that
emissions
Ultimately,
sources.
whether
endpoint
such was not “a sufficient
in the
the Wehrum Memorandum had been su-
decision-making
process.” McCarthy
perceded by
McCarthy
the
Memorandum
Memorandum, supra. Apart from revok-
at the time of the EPA’s final determina-
however,
ing
prior guidance,
this
the
tion
impact
would not
our decision. Al-
McCarthy
promotes
Memorandum
a neu-
though the Wehrum Memorandum made
plain meaning application
tral and
of the
clear the near-singular importance of the
plan,
EPA’s Title
directing permitting
physical
proximity of two
in
facilities
“rely
authorities to
foremost on the three EPA’s stationary
analysis,
source
regulatory
aggregating
criteria” for
McCarthy
emis-
supports
Memorandum
Sum-
“(1)
sources,
i.e.,
sions from multiple
position
mit’s
with its focus on applying
whether the activities are
regulatory
under the con-
text in Title V decisions.
(or
trol of
person
person
case, then,
the same
under
either
guid-
the EPA-issued
(2)
control);
common
whether the activi-
ance
support
memorandums
the error in
ties are located on one or
contiguous
more
interpretation
regula-
EPA’s
of its own
(3)
adjacent properties;
tory
term.4
HH,
additionally argues,
4. Summit
Subpart
Significant
as it has since
Section V of the
EPA,
correspondence
initial
its
with
Changes
Proposed
Comments and
to
"facility”
regula-
definition of a
Regulations,
HAP
EPA's
Standards of HAP
within which
against aggregation
adja-
tions cuts
of even
EPA states that "EPA
it would
believes
not be
gas industry.
cent
aggregate
facilities
the oil and
reasonable to
emissions from sur-
lease,
specifically
cites the Preamble to
face sites that are
on the
located
same
sense,
related),
sup-
thus,
functionally
in a
API
by Amicus API
Arguments
E.
of
with-
port
argues,
aggregation
conclusion.
activities
our
physical
their
regard
proximity
out
many
of
support
finds
Our decision
Indeed,
inherently unreasonable.
in the brief of Ami-
raised
arguments
a “common sense notion of
concept
of
First,
of the oil and
a member
cus API.5
facilitating
ag-
construed as
plant”
itself,
urges
API
us
consid-
industry
but
operationally
related
gregation
the EPA’s
er the fact
activities,
of function-
little
include a measure
distant
there is
physically
subjective
unpredict-
relationship is
aggregation
al
limit to the
foreseeable
able, undermining the Alabama Power
spread
literally
out
across
points
emission
give
the EPA’s test
mandate
Court’s
Moreover, API cautions that
country.
(and on what
as to whether
“explicit notice
on activ-
dependent
determinations
source
authority) the
construes
statutory
quickly
functional relatedness will be
ities’
” See Ala-
[stationary] source....
the term
gas producers
oil аnd
add and
outdated as
Power,
Relatedly,
F.2d at 397.
bama
produc-
from their
points
remove emission
supporting
EPA for
API criticizes
requiring nearly
systems, potentially
tion
concept
with the
source determination
re-
constant renewed source determination
a plant,”
reason-
“common sense notion
quests and decisions.
clearly
principle is
ing
general
struck
API’s fi-
particularly
constrain,
We
enlarge,
rather
than
meant
nal observation —that
of a
the EPA’s definition
in this case is an ironic
source.
determination
very
fears that caused the
showcase
argues that the EPA’s inter-
API also
*17
a functional related-
agency
adopt
not to
case,
in this
and will
pretation has led
in the
ness test for source determinations
lead, to absurd source deter-
continue to
MDEQ’s
From
and
first instance.
Summit
industry.
In a con-
minations within the
in
joint
request
source determination
Jan-
often
gas producers
and
text where oil
final
of the
uary 2005 to the
iteration
points
emission
say
have little
over where
decision, nearly
years passed.
five
every facility
nearly
and
is
are located
(and
engaged
twenty-five
in at least
by pipeline
parties
another
connected to one
(cautioning that the definition
great
apart.” Summit notes
8490-91
would
but are
distances
of dis-
only
that the Preamble "makes no mention
“apply
in the context of this section and
pol-
tinguishing HAP emissions from criteria
meanings
not be confused with other
should
V],” arguing
Title
[under
lutant emissions
(preven-
'major
parts C
of the term
source’ in
non-aggregation
should
the same
standard
(non-
deterioration)
significant
tion of
or D
regulated
apply
pollutant-emitting
sources
attainment)
Act.”).
Because Michi-
at
The Wehrum
under Title V. Pet’r Br.
regulations
gan's Title V
are also not at issue
support Sum-
Memorandum would seem to
case,
appeal
Summit's similar
to the
in this
procedure
position
three-step
for
mit's
as its
plan
incongruity
EPA's Title V
and
between
determining stationary
source cites to EPA's
(which precludes aggregation
Michigan's plan
Still,
regulations.
HAP
this is not
gas
despite contiguousness
facilities
of oil
strongest argument. As even Summit con-
adjacency)
fails.
also
cedes, "HAPs are not at issue in this case.”
Furthermore,
Pet'r
at 36.
the Senate
Br.
raising
5. While we credit Amicus AXPCwith
discussing the new definition of a
committee
well,
arguments,
they
persuasive
as
several
regulations spe-
"source” within EPA's HAP
positions
overlap
have
substantial
cifically
would
cautioned that
definition
already
and have thus
been
taken
only
S.Rep.
101-228 at
refer
to HAPs. See
No.
addressed.
3385,
(1989),
150-51
1990 U.S.C.C.A.N.
History
reprinted
Legislative
at
3535-36
in 5
exchanged
conference calls and
“a small
I. REVIEW OF AGENCY ACTION
paper”
period.
within
mountain
this
majority acknowledges,
As the
we defer
Certainly,
produce
the cost
Summit to
agency’s interpretation
to an
of its own
requested by
the data and schematics
ambiguous regulation
“controlling”
un
“
EPA,
for the EPA
and the cost
to distill
less that interpretation
‘plainly
errone
”
same,
high
and understand the
were
ous or
regulation.’
inconsistent with the
monetary
caрital
terms of both
re-
Robbins,
452, 461,
Auer v.
519 U.S.
out,
points
API
process
sources. As
905,
(1997)
S.Ct.
promote public health and welfare and productive capacity population.” The EPA aggregate will the emissions of 7401(b)(1). § 42 U.S.C. Because the ma- multiple stationary sources to determine if jority hamstrings the Environmental Pro- together major the sources a constitute (“EPA”) Agency’s ability tection to pursue (1) source if those sources “are under com- by refusing this mission (2) to defer to the person,” mon control of the same “are agency’s interpretation reasonable of its contiguous adja- located on one or more or (3) regulation, I respectfully own dissent. properties,” “belong[] cent determining relevant in whether two 40 be grouping.” industrial major are objects given apart that are a distance case, the EPA deter- In this 71.2. C.F.R. adjacent considered flares, enough close wells, sour-gas mined that Summit’s context. The EPA does not contend this are con- plant, which gas-sweetening adja- stationary sources are multiple underground pipe- by a nected dedicated functionally simply cent because are of a exclusively part line and are used interrelated, majority and the either mis- together operation, single, interconnected agen- or understands mischaracterizes part As of its source. constituted it. cy’s position describing in so variоus sta- that Summit’s determination located on tionary sources were sense, “adjacent” is In this more limited the fact the EPA considered properties, “adjacent” fact that re- ambiguous. The functionally in- those sources were objects two fers to the distance between terrelated. into a explain go does not what factors objects that determination of whether two majority its conclusion
The bases given apart are “next to” distance regula- of its own interpretation the EPA’s other, “close,” “immediately pre- each or factors: impermissible on three tion was The cited definitions ceding following.” or “adjacent,” plain meaning word the consid- unambiguously do not foreclose history major- regulatory of CAA of factors other than absolute eration determinations, and aggregation object One in a se- physical distance.1 view, my none of policy considerations. “immediately preced[es] or fol- quence deferring us from prevent these factors sequence, the next item in the for low[s]” upholding EPA and its decision this objects physically that are example. Two case. along connected fall “next to” each other “Adjacent” Meaning stationary A. The or more that connection. Two functionally sources that are interrelated majority peruses The several dictionar- “next to” similarly can be described as ies and concludes refers other; one follows the other in a each geogrаphical relationship or physical process. common objects. objects between two or more The distant,” to,” Moreover, to,” functional interrelatedness must be “not “next “close “immediately preceding following.” can inform the determination of whether objects given apart of its Title two that are a distance adjacent. properties If two are close regulations to allow consideration enough to each other to house functional interrelatedness sources that contribute to the same determinations does contradict *19 only plain meaning “adjacent.” operation, oper- of the word terrelated and to ation, properties likely those are more question The ultimate remains whether reasonably consid- properties physically enough enough two are close be close to be Likewise, adjacent. the EPA adjacent purposes to be considered for the ered could reasonably conclude that two or more aggregation under Title V. The EPA’s only simply part that other factors in sources that exist as same position is sequence likely will physical larger process to absolute distance can addition "adjacent” contradictorily majority acknowledges that but then concludes 1. The any factor than specific refer to EPA cannot consider other does not distance objects deciding stationary two as to two distance in whether that context matters adjacent, adjacent properties. given apart a are sources are located on that are distance See enough plant. to each other to be consid- the emission units and the close recognizes, App. the EPA Pet’r at 31. adjacent. ered As may in which the dis- circumstances exist Moreover, case, in Summit’s functional stationary is tance between two sources dimension; a physical interrelatedness has for those sources to be consid- great too each source is connected via a if adjacent, functionally even are ered pipeline. operation dedicated The is thus This fact does not mean that interrelated. only functionally phys- not interrelated but factor, can never be a but interrelatedness ically interconnected. Each (gas source support finding adja- it not a that will well, flare, sweetening plant) stop is a cency that instance. along physically pro- a connected consistency approach The of the EPA’s cess; each well is “next to” and “immedi- regulation apparent from the with well, ately precedes]” following for in this case. The EPA record did example. Nothing process outside of this adjacen- ignore physical dimension of physically functionally interrupts either cy; aggregate the EPA’s decision Sum- of gas underground the traverse from an wells, flares, not, plant mit’s was as through past field wells and majority allеges, “irrespective made sweetening plant. flares to the prop- The separates the distance that them.” Dis- erties on which each well or flare are a concluding tance was factor located likewise connected to each oth- located various sources were er, property and to on which the April In its 2007 letter to properties. is located.2 Summit, example, requested for the EPA a The position comports thus location of map showing the each emission plain meaning “adjacent” of the word unit, potential as well as the to emit of description geographical as a rela- each unit located within one mile of the tionship objects. between two The EPA gas-sweetening plant. App. Pet’r only uses interrelatedness determine The EPA discussed the distance between properties whether two enough close wells, gas-sweetening plant, gas Summit’s adjacent. to each other to be considered in its October 2010 letter flares Functional operates interrelatedness thus explaining aggregate its decision each only in that realm of operations major source in ambiguous; replace proximity, does not source, noting, example, ap- that “it determining but serves as a means of
pears that there are a dozen or more sour proximity. Accordingly, deference is war- gas wells within one mile-radius of the ranted. sweetening plant.” Resp. at 90-91 & App. If truly only majority’s n.21. had considered cited caselaw does not interrelatedness, Indeed, contrary functional it would have dictate a ma- result. operation jority’s persuasive authority” declared Summit’s to be “most on the April meaning reg- its initial 2007 letter after within the CAA noting that a Supreme each source was interrelated ulations is Court decision that sought and would not have additional involved a different statute and did not *20 regarding purport provide general formation the distance between to definition of fact, Although rely the EPA does not on this located. The different locations within the underground gas gas the fields from which the is field from which each well draws are thus beyond parcels only physically proximate, are drawn extend the individual not but actual- ly contiguous. land each or flare is on which well 754 ” 747-48, ting’ merely ‘nearby.’ In Id. at “adjacent.”3 Rapanos
the word
715, 740-42,
States,
specific,
United
2208. Given the
limited
126 S.Ct.
(2006),
L.Ed.2d 159
which
S.Ct.
discussion,
really
nature of this
has no
(“CWA”),
Act
the Clean Water
dealt with
any inquiry
to
into the mean-
applicability
that, for
of the
concluded
plurality
Court
“adjacent”
generally
more
or in
ing
meaning
the
a wetland to fall within
otherwise,
In determining
other context.
and thus be
“waters of the United States”
air,
majority
the sea for the
the
mistakes
CWA,
under the
the
subject
regulation
to
leaving the fish and the fowl confused.
actually
navigable
must
abut
wetland
anything, Rapanos actually
in
If
under-
waterway.
opinion
In its earlier
United
Inc.,
Homes,
Bayview
v. Riverside
States
position
demonstrating
mines Summit’s
121, 106
S.Ct.
whether
consideration
functional
interrelated-
subject
regulations
to CAA
is a decision
Although
rejects
ness.
the Preamble
expert agency
best left to the
tasked with terrelatedness as “another abstract factor”
aggrega-
that
The EPA’s
enforcing
law.
analyzed
in
aggregation
be
all
determi-
its
tion decisions reflect
institutional ex- nations,
52,695,
45 Fed.
Reg.
nothing in
pertise regarding how various industrial
the Preamble
possibility
forecloses the
operations
quality.
affect air
In all its talk
that interrelatedness could
relevant in
adjacency,
majority forgets
pur-
specific aggregation determination or oth-
adjacency
pose of the
determination. To
rejects
erwise
interrelatedness as a criteri-
majori-
metaphors,
mix environmental
on that could be considered within the
ty’s analysis
regula-
of the EPA’s clean-air
adjacency analysis.
below,
As discussed
tions misses the forest for the trees.
functional
gas-drill-
interrelatedness
ing industry is both particularly pertinent
Regulatory History
B.
likely
and less
to involve the kind of “sub-
concluding
would not defer
jective” assessments or “fine-grained anal-
interpretation
to the EPA’s
yses” that the EPA cited as reasons not to
ambigu-
even if it found that term to be
adopt
interrelatedness as
across-the-
ous,
majority
heavily
relies
on the
requirement,
Moreover,
board
see id.
regulations
Preamble to the EPA’s 1980
historical record
majority’s
belies the
char-
defining “stationary source”
under
acterizаtion of
categori-
the Preamble as a
Significant
CAA’s Prevention of
Deterio-
rejection
cal
of interrelatedness.
The
program,
ration
in which the EPA ex-
EPA considered
ag-
interrelatedness
plained
adopt
its decision not to
function-
gregation
determinations within
ten
al
independent
interrelatedness
as an
months of the 1980 Preamble —evidence
applied
factor that
to all aggregation de-
that the consideration of interrelatedness
terminations
all
across
industries. See
is not a recent phenomenon that somehow
52,676, 52,693-95
Reg.
(Aug.
45 Fed.
agency’s
deviates from the
original regula-
1980).
majority
The
first
reasons
tory intent. See Letter
from Edward
EPA
would not have considered add-
Reich,
Rothblatt,
EPA to Steve
EPA Re-
ing
separate
require-
intexrelatedness
(June
1981)
gion
(concluding
if adjacency
ment
and interrelatedness
“two facilities
approximately
one
[that]
argument
logical,
are the same. This
apart,
mile
have a dedicated railroad line
but
position.
misconstrues
between them and
programmed
to-
equate adjacency
The
does not
gether
produce
one line of automobiles
interrelatedness;
the latter
is a factor
adjacent”).
... can be considered
can help
some cases
determine
requirement
ag-
of the former
Preamble also makes clear that
gregation
is met. Because
does not de-
aas
source is warranted if
U.S.A.,
cases,
noting
It is worth
that Chevron
Inc.
ence
involved the EPA's
Counсil, Inc.,
Natural
Resources
"stationary
source” in a different section of
Defense
837, 840,
81 L.Ed.2d
the CAA.
(1984),
grandparent
agency-defer-
*22
majority
the val-
the “common sense
Summit
stress
operation
an
reflects
in
predictability
regulatory regime
the three
ue of
a
plant,”
notion of [a]
emphasize
recog-
that the EPA itself
aggregation
requirements
—common
danger
having
indus- nized the
to conduct “nu-
ownership, adjacency, and
shared
merous, fine-grained analyses”
aggrega-
in
intended to answer
grouping
trial
—are
52,694-
at
Reg.
Reg.
45 Fed.
at
tion determinations. See 45 Fed.
question.
See
52,695.
majority
Summit and the
Different
industries are structured
What
95.
however,
industry,
recognize,
fail to
is that such
differently.
gas
In the oil and
not
in
case.
might
implicated
that in other contexts
concerns are
activities
clearly
are
interrelat-
single building may
operations
within a
Summit’s
housed
par-
supplies
gas only
out
ed. Each well
sour
spread
stead be
across different
Viewing
gas-sweetening plant.
Summit’s
The
cels of land.
distance be-
in
not receive sour
from
other
drilling operation
two facilities
does
tween
Each unit
light
physically
in
of their functional interrelatedness
source.
connected
purpose
identifying op- by
pipeline.
thus serves the
dedicated
Summit does not
“highly subjective”
that reflect the “common
contend otherwise. No
erations
sense
plant.”
“fine-grained analys[i]s”
required.5
was
notion of [a]
Moreover,
Finally,
aggre-
long
the fact that the EPA’s
the EPA has
considered
gation
major-
determinatiоn in this case is some-
interrelatedness
as a factor
determinations,
prefer-
with the policy
aggregation
what inconsistent
includ
expressed
ing
gas industry,
ences
the withdrawn
in the oil and
so
Wehrum
Summit
not
claim
credibly
surprise
Memo does
render
determination
cannot
impermissible.
agency
The Wehrum Memo relies
did so in this case. The concern
policy
focusing
reasons for
on distance
that deference to an agency’s interpreta
interrelatedness,
regulations
rather than
an
tion of
own
argu-
“require
would
regulated
meaning
“adjacent.”
parties
agency’s
ment based on the
to divine the
interpretations in advance or else be held
Similarly, the Wehrum Memo would not
identify physical
agency
liable when the
announces its inter
proximity
need
as “the
pretations for the
in an
most informative factor” in an
first time
enforce
proceeding
ment
only possible
determination if it was the
and demands deference”
implicated.
is not
Christopher
factor.
Pet’r
v. Smith-
App.
See
, —
—,
Corp.
Kline Beecham
U.S
. —
(2012).
S.Ct.
757 219-20, 122 152 III. S.Ct. CONCLUSION 535 U.S. (2002). L.Ed.2d 330 Because I believe that the EPA’s consid- Further, majority recognizes, as the eration of functional interrelatedness as a “adjacent” meaning does not have a set along physical factor distance in its any bright- distance. Absent specific both determination was reason- far is too far line rule as how (and deference) worthy of able thus and adja- to be considered numerous sources correct, I affirm its ag- would decision to cent, any aggregation that determination gregate the various sources in alone could involve the considers distance drilling operation major Summit’s as a “subjective” “fine- very assessments majority source. that Recognizing analyses” that Summit fears. grained otherwise, that, I in closing concludes note ability to consider the in- Stripped essentially holding aside from that func- terrelatedness of Summit’s wells tional an impermissible interrelatedness EPA would have had to consider plant, the consider, majority factor to not does well, each the distance between individual aspect find that other of the EPA’s between each well along with the distance aggregation determination was un- flawed each plant, and the and decide whether der the Act Administrative Procedure adja- was too far to be considered distance for agency decisionmaking standards case, process this could cent. Summit’s Farm, State articulated in at 42- U.S. adja- require separate over one hundred remand, then, 2856. On S.Ct. drilling op- cency determinations. Other EPA is free to reach the same conclusion similarly erations that are structured but operations aggre- Summit’s should be distances or traverse dif- cover different gated major permit- as a source for Title V rely landscapes might ferent not be able ting purposes, long so as it bases that case in on the determination conclusion on the considerations that they subject predicting whether would See majority today appropriate. deems to aggregation. Chenery Corp., Sec. & Exch. Comm’n v. po- majority’s adoption of Summit’s 194, 196, 200-01, Pri- policy
sition raises its own concerns. (1947). L.Ed. 1995 marily, today’s ruling frees the oil and
industry gerrymander way out of regulation. long
Title So as sufficient (so exists between each well
distance majority
they are not as the term), or someone other than
defines parcels owns of land drilling company (so each well are not between drilling operation cannot
“contiguous”), through as a
be classified provisions aggregation. Unlike CAA LLC, ENHANCER, PETROLEUM governing pollutant hazardous air emis- Plaintiff/Counterclaim see sions, 7412(n)(4), U.S.C. Defendant-Appellee, grant gas industry the oil does court immunity aggregation; from effectively provi- should not create such WOODWARD, Defendant, R. Congress has not done so. Lester
sion when