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 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 amendments require EPA to 

promulgate national ambient air quality standards 

(“NAAQS”) that limit the concentration of certain pollutants

allowable in the ambient air people breathe. See 42 U.S.C. § 

7409(a)(1). For each pollutant, primary and secondary 

standards must be set at levels “requisite to protect the public 

health” and “the public welfare,” respectively. Id. § 7409(b).

Each state develops its own state implementation plan (“SIP”) 
4

containing emission limits and other control measures to 

enforce the NAAQS within the state. Id. §§ 7407(a), 

7410(a)(1)-(2). 

In 1977, Congress amended the CAA to create the 

Prevention of Significant Deterioration (“PSD”) program.

See 42 U.S.C. § 7470-79. The PSD program requires major 

emitting facilities1to obtain a permit “setting forth emission 

limitations” for a facility prior to construction. 42 U.S.C. 

§ 7475(a)(1); see Ala. Power Co. v. Costle, 636 F.2d 323, 378 

(D.C. Cir. 1979). The program requires any applicant for a 

PSD permit to demonstrate that new emissions from the 

proposed project “will not cause, or contribute to, air 

pollution in excess of any (A) maximum allowable increase or 

maximum allowable concentration for any pollutant in any 

area to which this part applies more than one time per year, 

[or] (B) national ambient air quality standard in any air 

quality control region[.]” 42 U.S.C. § 7475(a)(3). The 

“maximum allowable increase” of an air pollutant is a 

marginal level of increase above the defined baseline 

concentration and is known as the “increment.” 75 Fed. Reg. 

64,864, 64,868 (Oct. 20, 2010).

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 42 U.S.C. § 7410(a)(1)-(2), 

(l), section 7475(e)(3) authorizes EPA to promulgate 

regulations regarding the ambient air quality analysis required 

under the permit application review. Id. § 7475(e)(3)(D).

1 A “major emitting facility” is defined as any stationary source that 

emits or has the potential to emit 100 or 250 tons per year 

(depending on the type of source) of any air pollutant. 42 U.S.C. 

§ 7479(l); see also id. § 7479(2)(C) (governing modifications).
5

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 section 7475(a)(3). See 40 C.F.R. § 51.165(b)(2); 52 

Fed. Reg. 24,672, 24,713 (July 1, 1987). The air quality 

concentration values specified in the regulation have become 

known as “significant impact levels,” or SILs, when used as 

part of an air quality demonstration in a permit application. 

See SILs Guidance at 9. 

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 

40 C.F.R. §§ 51.166 and 52.21 and by incorporating PM2.5 

values into its preexisting table of significance values at 40 

C.F.R. § 51.165(b)(2). See 75 Fed. Reg. at 64,864, 64,886, 

64,902. However, after a petition for review was filed, EPA 

asked this Court to vacate and remand the (k)(2) paragraphs 

of both regulations so EPA could address flaws it had 

recognized during the course of litigation. See Sierra Club v. 

EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). In 2013 the 

Court vacated the (k)(2) paragraphs, stating that, on remand, 

“the EPA [might] promulgate regulations that do not include 

SILs or do include SILs that do not allow the construction or 

modification of a source to evade the requirement of the Act 

as do the SILs in the current rule.” Id. at 464. 

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 guidance on the use of SILs. On 

April 17, 2018, EPA issued the SILs Guidance at issue in this 

case with revisions made in response to the public comments. 

The SILs Guidance expressed EPA’s view that permitting 

authorities have the discretion to find sources applying for 
6

permits and that have individually small impacts exempt from 

the demonstration required by section 7475(a)(3). SILs 

Guidance at 17. Based on statistical analyses and technical 

approaches, the Guidance outlined what the agency believes

are individually small impacts by identifying recommended, 

non-binding SIL values for the PM2.5 and ozone NAAQS, 

and for the PM2.5 increments. Id. at 15-17. The SILs 

Guidance then explained that if a proposed source’s projected

maximum impact is below the corresponding SIL value, that 

“generally may be considered to be a sufficient demonstration 

that the proposed source will not cause or contribute to a 

violation of the NAAQS.” Id. at 17. Permitting authorities 

may use the nationally applicable SILs established in the SILs 

Guidance, but also “have discretion to develop their own SIL 

values” using EPA’s methodology as a model and provided 

the values are properly supported in the record for each 

permitting action or decision in which they are used. Id. at 3.

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 
7

also requires that “[t]he case-by-case use of SIL values should 

be justified in the record for each 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.

Section 307(b)(1) of the Clean Air Act, titled 

“Administrative proceedings and judicial review,” provides, 

in relevant part:

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. 

42 U.S.C. § 7607(b)(1).
8

As the Supreme Court made clear in Harrison v. PPG 

Industries, Inc., section 307(b)(1) is a “conferral of 

jurisdiction upon the courts of appeals[.]” 446 U.S. 578, 593 

(1980). It is also a venue provision that evinces Congress’ 

clear intent that “‘any nationally applicable regulations 

promulgated by the Administrator under the [CAA can] be 

reviewed only in the U.S. Court of Appeals for the District of 

Columbia.’” Id. at 590 (quoting H.R. Rep. No. 95–294, pp. 

323-324 (1977), which explains that the Committee agreed 

with certain venue proposals of the Administrative 

Conference of the United States also to this effect.); see also

41 Fed. Reg. 56,767, 57,768 (Dec. 30, 1976) (stating the 

Administrative Conference’s view that “all such national 

standards” under the CAA shall be reviewed “in the Court of 

Appeals for the District of Columbia Circuit”). However, this

Court emphasized in Dalton Trucking v. EPA that “under 

section 307(b)(1), subject matter jurisdiction and venue are 

not coterminous.” 808 F.3d 875, 879 (D.C. Cir. 2015). That 

is, just because an agency action may have national 

applicability does not mean it is final such that it can be 

reviewed immediately by this Court – and vice versa.

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 consequences will flow.”
9

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 decisions 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 will be undertaking in 

response to the Court’s partial vacatur and remand of the 2010 

rule. Id. at 2. Finally, EPA points to its Fall 2018 regulatory 

agenda, which states that the Guidance was published as a 

first step and that “[b]ased on the information gathered from 

the implementation of [the SILs Guidance] by the permitting 
10

authorities, EPA will complete a rulemaking action, as 

appropriate.” J.A. 874.

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 – so 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 42 

U.S.C. § 7475(a)(3) and expresses EPA’s definitive position 

on this question of statutory interpretation. Id. at 3 (internal 

citations and quotations omitted)). They assert the SILs 

Guidance has an “immediate and significant” effect on how 

permitting authorities interpret the PSD permitting 

requirements and will “burden Sierra Club members with 

additional pollution exposure.” Id. (citing CSI Aviation 

Servs., Inc. v. U.S. Dep’t of Transp., 637 F.3d 408, 412 (D.C. 

Cir. 2011)). Finally, Petitioners point to statements by one of 

their standing declarants asserting that permitting authorities 

have begun relying on the proposed and final SILs Guidance. 

Id. (citing Declaration of Mary Anne Hitt at ¶ 22). 

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 
11

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 42 U.S.C. § 7475(a)(3), 

remain wholly unchanged. Id. at 27. 

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 

determinations based on the concrete consequences an agency 

action has or does not have as a result of the specific statutes 

and regulations that govern it.” Cal. Cmtys. Against Toxics, 

934 F.3d at 637. When deciding whether guidance statements 

meet prong two, this Court has considered factors including: 

(1) “the actual legal effect (or lack thereof) of the agency 

action in question on regulated entities”; (2) “the agency’s 

characterization of the guidance”; and (3) “whether the 
12

agency has applied the guidance as if it were binding on 

regulated parties.” National Mining Ass’n v. McCarthy, 758 

F.3d 243, 253 (D.C. Cir. 2014).

In Hawkes, the Court held, in part, that the agency 

determination at issue had direct and appreciable legal 

consequences (or actual legal effect) because 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 appropriate, 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 
13

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 enforcement 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 

technical and legal documents. See SILs Guidance at 19. It is 

also not necessary for a permitting decision – permitting 

authorities are free to completely ignore it. See id. at 19-20. 

As such, we find the SILs Guidance does not result in “direct 

and appreciable legal consequences” as required under prong 

two of Bennett. See 520 U.S. at 178. 

Paramount in this decision is the amount of discretion 

permitting authorities retain after publication of the SILs 
14

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 outlined 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., 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 were 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. 

E.P.A., 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 
15

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.”).

As in Valero, EPA is not using the SILs Guidance to 

“flex[] its regulatory muscle” or to present regulated entities

with the “painful choice between costly compliance and the 

risk of prosecution at an uncertain point in the future[.]” CSI 

Aviation Servs., 637 F.3d at 412-13. Nor does the SILs 

Guidance “impose obligations by chicanery – disclaiming 

legal force and effect but nonetheless ‘read[ing] like a 

ukase.’” Valero, 927 F.3d at 537 (quoting Appalachian 

Power, 208 F.3d at 1023). The SILs Guidance by itself does 

not expose any regulated entity to the possibility of an 

enforcement action or to enhanced fines or penalties. See 

Sackett, 566 U.S. at 126; see also National Mining Ass’n, 758 
16

F.3d at 252 (holding that a guidance statement was not final 

action, in part, because “[a]s a matter of law, state permitting 

authorities . . . may ignore EPA’s . . . Guidance without facing 

any legal consequences[]”). The document merely provides 

guidance that permitting authorities may use on a “case-bycase” basis. SILs Guidance at 19. As such, we find it does 

not beget the same practical consequences as the targeted preenforcement letters in CSI Aviation and Ciba-Geigy and is not 

final agency action under prong two of Bennett. 

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, section 307(b)(1) of the CAA 

Amendments of 1977 vested exclusive jurisdiction in the 

Court of Appeals for the District of Columbia Circuit to 

review all final EPA actions of nationwide consequence, 

whether such action is pursuant to specifically enumerated 

provisions of the CAA, or pursuant to “any other nationally 

applicable regulations promulgated, or final action taken, by 

the Administrator under [the Act].” Harrison v. PPG Indus., 

Inc., 446 U.S. 578, 590 (1980) (quoting 42 U.S.C. 

§ 7607(b)(1) and citing H.R. 6161, 95th Cong., 1st Sess. 

(1977)) (alteration in original). As we stated long ago, “[o]ur 

jurisdiction extends to ‘any . . . nationally applicable . . . final 

action taken by’ the EPA ‘Administrator.’” Appalachian 

Power Co., 208 F.3d 1015, 1020 n.10 (D.C. Cir. 2000)

(quoting 42 U.S.C. § 7607(b)(1)) (emphasis added) 

(alterations in original); see also Cal. Cmtys. Against Toxics v. 

EPA, 934 F.3d 627, 634 (D.C. Cir. 2019) (stating section 

307(b)(1) “confers jurisdiction . . . in this court for, inter alia, 

final action of the Administrator that is ‘nationally 

applicable.’” (quoting 42 U.S.C. § 7607(b)(1))); Alon Ref. 

Krotz Springs, Inc. v. EPA, 936 F.3d 628, 642 (D.C. Cir. 

2019). In contrast, the CAA Amendments confined the 

jurisdiction of the regional courts of appeals to review of local 

or regional actions, whether such action is pursuant to 

specifically enumerated provisions of the CAA, or pursuant to 

“any other final action of the Administrator under [the CAA] 

which is locally or regionally applicable.” 42 U.S.C. 

§ 7607(b)(1)); see also H.R. Rep. No. 95–294, at 323-24 

(1977).

There is no question here that the SILs Guidance is

“nationally applicable,” id. § 7607(b)(1), as the Guidance was
2

distributed for use nationwide, and it states “EPA believes

that the application of these SILs in the manner described

below would be sufficient in most situations for a permitting

authority to conclude that a proposed source will not cause or

contribute to a violation of . . . PSD increments,” SILs

Guidance at 3 (emphasis added). Furthermore, even though

its use is optional, the SILs Guidance was expressly

developed “to promote national consistency.” Id. at 13; see

also id. at 15 (“Having a national SIL value promotes

consistency in implementation and prevents possible

confusion or arbitrary choices that may arise with highly

localized SIL values . . . .”). 

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 the 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
3

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
4

should be treated alike. See NLRB v. Wyman-Gordon Co.,

394 U.S. 759, 770-71 (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

though it were a new rule promulgated under the rule-making

power.”). Thus, an agency may not “depart from a prior

policy sub silentio or simply disregard rules that are still on

the books,” but it may change policy if such change is

permitted by statute and the agency articulates “good reasons”

for doing so. FCC. v. Fox Television Stations, Inc., 556 U.S.

502, 515 (2009).

The Environmental 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 78 Fed.

Reg. 5281, 5284 (Jan. 25, 2013) (“Practitioners before the

[EAB] in permit appeals currently are guided by Board

precedent, standing orders of the Board, and the Board’s

Practice Manual.”); see also Stanley Abramson, et. al., 1 L. OF

ENVTL. PROT. § 9:106 (2019). Pursuant to that mission, the

EAB is tasked with, inter alia, discretionary review of

individual PSD permitting decisions. See 40 C.F.R.

§ 124.19(a). In the over 40 states that implement the PSD

program in accordance with their approved SIPs, applicable

EPA regulations require notice, a comment period, and a

public hearing on applications for new sources of air

pollution. Id. §§ 124.10-.12. Upon final approval of an

application by a state permitting authority, participants in the

comment process may petition the EPA Administrator for

administrative review through the EAB. Id. § 124.19(a). 

EAB decisions are final agency actions published in the

Federal Register, id. § 124.19(l); therefore review of EAB

decisions on “locally or regionally applicable” permit appeals
5

are heard by the appropriate regional court of appeals, 42

U.S.C. § 7607(b)(1), while review of “nationally applicable”

permit appeals must be heard in this Court, id. Because the

regulations allow a petitioner to challenge “any condition of

any [specified] permit decision,” 40 CFR § 124.19(a), which

the EAB has construed “to include . . . the permit decision in

its entirety, whether based on alleged substantive or

procedural defects,” 78 Fed. Reg. at 5284, the EAB could

potentially rule upon a substantive challenge to the SILs

Guidance similar to the one asserted here by the Sierra Club.

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 for 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 42

U.S.C. § 7607(b)(1)) (alterations in original). As the Supreme

Court made clear in Harrison, Congress intended for

nationally applicable final agency action under the CAA to be

heard here, 446 U.S. at 590, and it would not make sense to

have various state courts or regional courts of appeals issue

potentially inconsistent rulings on substantive challenges to

the national SILs Guidance or review of permitting decisions

based upon the Guidance.

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. 
6

Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019)

(citing 42 U.S.C. § 7607(b)(1)). Additionally, although the

majority of PSD permitting decisions are made by the

relevant state authorities, in localities without PSD programs

in their state implementation plans, EPA itself manages the

PSD program and issues preconstruction permits. See

generally 40 C.F.R. § 52.21; Puerto Rican Cement Co. v.

EPA, 889 F.2d 292, 294 (1st Cir. 1989) (reviewing a PSD

preconstruction permit issued by EPA directly). Whatever the

administrative context, the pathway appears the same –

should EPA, in the course of issuing an individual permitting

decision, an appeal to the EAB, or through another method,

take final agency action approving of, passing on, or

otherwise ruling on the substance of the SILs Guidance in a

nationally applicable manner, review should be had in this

Court under section 307(b)(1), just as Congress commanded.
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.