Sierra Club v. EPA

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 7, 2019 Decided April 7, 2020 No. 18-1167 SIERRA CLUB, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY AND ANDREW WHEELER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS AIR PERMITTING FORUM, ET AL., INTERVENORS 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 2 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. Hulse, 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. WILKINS, Circuit Judge: This case again presents the seemingly labyrinthine question of whether an agency action is final for the purposes of judicial review. The agency action before us is a document titled “Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program” (the “SILs Guidance”) published on April 17, 2018 by the U.S. Environmental Protection Agency (“EPA”), authored by Peter Tsirigotis, Director of EPA’s Office of Air Quality Planning and Standards. 3 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 42 U.S.C. § 7475(a)(3) in the SILs Guidance, for the reasons detailed herein, we do not reach those issues. We hold that the SILs Guidance is not final agency action subject to review by this Court under the Clean Air Act (“CAA”) as it does not determine rights or obligations and does not effectuate direct or appreciable legal consequences as understood by the finality inquiry. See 42 U.S.C. § 7607(b)(1). As such, we dismiss the petition for lack of subject-matter jurisdiction under the CAA. We express no opinion as to ripeness or the merits. 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 …Original document