# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2019 Decided April 7, 2020

No. 18

- 1167

S IERRA C LUB

, P ETITIONER

v.

E NVIRONMENTAL P ROTECTION A GENCY AND A NDREW

W HEELER

, A DMINISTRATOR

, U.S. E NVIRONMENTAL

P ROTECTION A GENCY

, R ESPONDENTS

A IR P ERMITTING F ORUM

, ET AL

., I NTERVENORS

On Petition for Review

of an Administration Action by the

United States Environmental Protection Agency

Gordon Sommers argued the cause fo r 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, Jonathan2

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 curi ae American Petroleum

Institute in support of respondents U.S. Environmental

Protection Agency, et al., and denial of petition for review.

Before: G ARLAND and W ILKINS

, Circuit Judge s , and

R ANDOLPH

, Senior Circuit Judge

.

Opinion for the Court filed by Circui t Judge W ILKINS

.

Concurring opinion by Circuit Judge W ILKINS

.

Concurring opinion by Senior Circuit Judge R ANDOLPH

.

W ILKINS

, 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 1 7, 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 contend s 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 a lternatively, that we s hould 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

, f or 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 C ourt 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 fina lity 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 strug gle

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 pollutant s

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 sta te 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),

7 410(a)(1)

- (2).

In 1977, Congress amended the CAA to create the

Prevention of Significant Deterioration (“PSD”) program.

See 42 U.S.C. § 747 0

- 79. The PSD program requires major

emitting facilities 1 to 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. C o stle , 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)

, s ection 7475(e)(3) authorizes EPA to promulgate

regulations regarding the ambient air quality analysis required

under the permit application revie w. 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); s ee 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 pollu tants, 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 Fe d. Reg. at 64,86 4

, 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 curren t 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 g uidance 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 for6

permit s and that have individually small impacts exempt from

the demonstration required by s ection 7475(a)(3). SILs

Guidance at 17

. Based on statistical analyses and technical

approaches

, the G uidance outlined what the agency believe s

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

G uidance 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 1 7

. P ermitting authorities

may use the nationally applicable SILs estab lished 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, i f 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 o r

PSD increment.” I

d. 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 G uidance

. Id. at 1 8

. Permitting

authorities retain the ability to require additional information

, and have discretion to find that even if a proposed source’s

impact is below th e 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 G uidance7

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

G uidance should fully incorporate the information contained

in the Guidan ce, including the technical and legal documents

used in the permitting process

. Id. at 1 9

.

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 G uidance,

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 p roceedings 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 acti on 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

Indus tries , 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 (q uoting 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 , 57,7 6 8 ( Dec

. 30, 1976 ) (statin g 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, t his

C ourt 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 immedia tely by this C ourt

– and vice versa

.

Before explaining why the SILs Guidance is not final

agency action, we pause to reiterate the proper test for

finality.

I n 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 Bennet t 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, f

irst, the action must “ mark the consummation

of the agency’s decisionmaking process

. . . . A nd 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, “ w hen 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 statute s and regulations that govern the action

at issue.” Cal

. C

mtys. 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

c onsummation of the agency’s process, point ing to the

document’s disclaimer that it is “neither a final determination

nor a binding regulation .” SILs Guidance at 19. EPA argue s

the Guidance explicitly states that it s issuance is only phase

one of a two

- st ep 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 permitting10

authorities, EPA will complete a rulemaking action, as

appropriate.” J.A. 874.

The parties also disagree whether the SILs Guidance has

“direct and appreciab le 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 r eceive 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

. T hey 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 express es EPA’s definitive position

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

citations and quotations omitted)). They asser t 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 Declara tion of Mary Anne Hitt at ¶ 22 ).

EPA counters that the SIL s G uidance is not final agency

action as it “ does not create a new and binding legal regime. ”

EPA Br. at 29. T hey 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 the11

interpretation.” Id

. at 28. Second, they argue “ t he 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,

t hey 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 r equirements of

the CAA and o ther EPA regulations, including the

“demonstration” requirement of 42 U.S.C. § 7475(a)(3),

remain wholly unchanged. Id

. at 27.

W h ether an agency action has “direct and appreciable

legal consequences” under the second prong of Bennett is a

“‘ pragmatic ’ ” inquiry

. Hawkes

, 136 S. Ct. at 18 15 ( quoting

Abbott Labs. v. Gardner , 387 U.S. 136, 149 (1967)). And as

we recently emphasized

, co urts 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 guidanc e”; and (3) “whether the12

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 dir ect 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 focus ing

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 a ction 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) (s ame)).

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 a cknowledged at oral

argument th at the guidance had no independent legal

authority; and (4) the relevant statute provided regulated

parties a mechanism by which to challenge any EPA action13

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 face d no penalty or liability of any sort in ignoring

it; and ( 3 ) state permitting authorities and regulatory

beneficiaries had clear avenues by which to challen ge 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

sta tutory 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 r elying 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

. S ee 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 SILs14

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 recipie nt 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 t he

SILs Guidance , to develop and justify their own SIL s , or even

to ignore the Guidance entirely. See SILs Guidance at 19

- 21.

T he SILs Guidance explicitly preserves s tate discretion

regarding what degree of modeling or analysis may be

necessary for each petition and does not require s tates to

review their programs or take any proactive action in

response

. See SILs Guidance at 3

. The s tates have not been

given “marchi ng 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 s tate

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

.

Petition er 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 on15

regulated parties, e ven 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 t o 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 portio ns 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

Guid ance 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

– discl aiming

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 , 75816

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

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

- by

case” basis

. SILs Guidance at 19. As such, we find it does

not beget the same practical consequences as the targeted pre

enforcement 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.

S ee 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.W ILKINS

, 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, o r 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)

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

(alterations in original); s ee 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 t he 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 was2

distributed for use nationwide, and it states “ EPA believes

that the applicati on 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 o r 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 wi ll 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 b ut 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 revie w must occur in this

Court.

The EPA is certainly free to make nationally

applicable policy, such as the SILs Guidance, via adjudication3

of individual permits rather than in one fell swoop via a

rulemaking proceeding. While agencies usually promulgate

p olicies 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 t he 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 author ity, 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 circumstances4

should be treated alike. See NLRB v. Wyman

- Gordon Co.

, 3 94 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

E NVTL

. P ROT

. § 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 o ver 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 r eview of EAB

decisions on “ locally or regionally applicable” permit appeals5

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

regul ated 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)). Add itionally, 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

gen erally 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 i ssuing 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 commande d.R ANDOLPH

, 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.