United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 1, 2019 Decided August 20, 2019

No. 18-1085

CALIFORNIA COMMUNITIES AGAINST TOXICS, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND ANDREW

WHEELER, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY,

RESPONDENTS

AIR PERMITTING FORUM, ET AL.,

INTERVENORS

Consolidated with 18-1095, 18-1096

On Petitions for Review of Action of the 

United States Environmental Protection Agency 

Sanjay Narayan argued the cause for Environmental 

Petitioners. With him on the briefs were James S. Pew, Tomás 

E. Carbonell, Vickie Patton, Surbhi Sarang, John Walke, Emily

Davis, Thomas Zimpleman, and Keri N. Powell.

Kavita P. Lesser, Deputy Attorney General, Office of the 

Attorney General for the State of California, argued the cause 
2

for petitioner State of California. With her on the briefs were 

Xavier Becerra, Attorney General, David A. Zonana, Deputy 

Attorney General, and Jonathan Wiener, Deputy Attorney 

General.

Eric Grant, Attorney, U.S. Department of Justice, argued 

the cause for respondents. On the brief were Jeffrey Bossert 

Clark, Assistant Attorney General, Jonathan D. Brightbill, 

Deputy Assistant Attorney General, and Scott Jordan, 

Attorney, U.S. Environmental Protection Agency.

Shannon S. Broome argued the cause for intervenorsrespondents Air Permitting Forum, et al. With her on the briefs 

were Charles H. Knauss, Leslie Sue Ritts, Makram B. Jaber, 

and Andrew D. Knudsen.

David M. Friedland, Leslie A. Hulse, Felicia H. Barnes, 

Steven P. Lehotsky, Michael B. Schon, and amici curiae 

American Chemistry Council, et al. in support of respondents. 

Before: ROGERS and WILKINS, Circuit Judges, and 

SILBERMAN, Senior Judge.

Opinion for the Court filed by Circuit Judge WILKINS. 

Dissenting Opinion filed by Circuit Judge ROGERS.

This case asks us to determine the nature of an agency 

action, an inquiry that – paradoxically – is quotidian but 

abstruse. When we are confronted with agency action, the 

litany of questions is by now very well-rehearsed: Is it final? Is 

it ripe? Is it a policy statement? Is it an interpretive rule? Is it a 

legislative rule? Despite the clarity of these questions,

however, predictable answers have eluded courts and 

commentators. See, e.g., Perez v. Mortg. Bankers Ass’n., 135 
3

S. Ct. 1199, 1204 (2015) (describing the question of how to 

distinguish between legislative and interpretive rules as “the 

source of much scholarly and judicial debate”); Ticor Title Ins. 

Co. v. FTC, 814 F.2d 731, 745 (D.C. Cir. 1987) (opinion of 

Williams, J.) (characterizing the law governing finality and 

ripeness as “chaotic”); Ronald M. Levin, Rulemaking and the 

Guidance Exemption, 70 ADMIN L. REV. 264, 348 (2018) (“The

standard view among commentators is that [distinguishing 

between legislative and nonlegislative rules] is exceptionally 

perplexing and incoherent.”). Indeed, the nature of agency 

action, it seems, is too often in the eye of the beholder. We 

resolve the instant matter, therefore, with our eye toward the 

“continuing project” of clarifying this “byzantine” area of the 

law. Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 246 (D.C. 

Cir. 2014). 

The agency action before us is a 2018 memorandum

(“Wehrum Memo”) that William L. Wehrum, Assistant 

Administrator for the Environmental Protection Agency’s

(“EPA”) Office of Air and Radiation, issued to all Regional Air 

Division Directors. The Wehrum Memo declares that the plain 

language of § 112 of the Clean Air Act (“Act” or “CAA”), 42 

U.S.C. § 7412, compels the conclusion that a source of toxic 

emissions classified as “major” can reclassify to an “area 

source,” and thereby ease its regulatory burden, at any time

after it limits its potential to emit to below the major source 

threshold. J.A. 1. The Wehrum Memo states that it supersedes 

a prior 1995 EPA memorandum (“Seitz Memo”) issued by 

John Seitz, then Director of EPA’s Office of Air Quality 

Planning and Standards, which interpreted § 112 to mean that

once EPA classifies a source as major, that source can never 

reclassify to area source status, even if it limits its potential to 

emit to below the major source threshold. Id.
4

Petitioners are the State of California and a group of 

environmental organizations whose citizens and members, 

respectively, breathe the air in the vicinity of regulated sources. 

EPA is the Respondent, and a group of industry organizations

have joined as Intervenor. Petitioners contend that we can and 

should review the Wehrum Memo because it is final agency 

action and prudentially ripe. Moreover, Petitioners argue, the 

Wehrum Memo is a legislative rule, and it is therefore

procedurally defective under the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 551 et seq., because EPA failed to provide 

notice and comment before issuing it, see id. § 553. But even 

if we hold that the Wehrum Memo is an interpretive rule (for 

which notice and comment is not required, see id.), Petitioners 

contend that we still must vacate it because EPA’s

interpretation of § 112 is incorrect. Respondent and Intervenor 

retort that this Court lacks jurisdiction over the Wehrum Memo 

because it is not final agency action. Alternatively, they argue, 

we should not review it because it is not prudentially ripe. If,

however, we find the Wehrum Memo final and ripe,

Respondent and Intervenor assert, we must deny the petitions 

because it is an interpretive rule and is thus procedurally sound, 

and its interpretation of § 112 is correct. 

For the reasons explained herein, we hold that the Wehrum 

Memo is not final agency action, and we dismiss the petitions 

for lack of subject matter jurisdiction under the Act. We

express no opinion as to whether the Wehrum Memo is 

prudentially ripe, an interpretive rule or a legislative rule, or on

the merits of its interpretation of § 112. In holding that the 

Wehrum Memo is not final, we emphasize two points. First, 

when assessing the nature of an agency action (including 

whether it is final), 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 
5

action at issue. Second, although all legislative rules are final, 

not all final rules are legislative, and the finality analysis is 

therefore distinct from the test for whether an agency action is 

a legislative rule.

I.

Because they share a progenitor, a reliable approach to 

understanding a James Baldwin novel is to compare it, 

according to a set of criteria, to another work in his oeuvre.

Indeed, a thematic reading of Giovanni’s Room is sure to

inform such a reading of The Fire Next Time, and vice versa.

Not so, however, with respect to the broad set of phenomena 

we categorize as agency action. Because few, if any, of them

are governed by the exact same combination of statutes and 

regulations, it is a mistake to assume – even if they appear

facially similar – that they can lend each other definition 

through comparison, or that they are decipherable under a 

common rubric. Rather, to ascertain the nature of an agency 

action, courts should ground the analysis in the idiosyncratic 

regime of statutes and regulations that govern it. We have great 

sympathy for the desire to develop a one-size-fits-all heuristic. 

See, e.g., Nat’l Min., 758 F.3d at 251 (“. . . all relevant parties 

should instantly be able to tell whether an agency action is a 

legislative rule, an interpretive rule, or a general statement of 

policy . . . .”). But this desire is perhaps misplaced, since, as we 

once said of interpretation itself, agency action is “a chameleon 

that takes its color from its context.” American Min. Congress 

v. EPA, 995 F.2d 1106, 1111 (D.C. Cir. 1993).

Accordingly, we turn first to the CAA provisions and EPA 

regulations that govern the Wehrum Memo.

Congress enacted the CAA, 42 U.S.C. § 7401 et seq., to 

“protect and enhance the quality of the Nation’s air 
6

resources . . . . ” Id. § 7401(b)(1). Toward this end, § 112

requires EPA to regulate “Hazardous Air Pollutants,” i.e. toxic 

emissions such as chloroform. Id. § 7412. Congress 

established an initial list of hazardous air pollutants, id.

§ 7412(b)(1), but the Act requires EPA to curate it, deleting or 

adding hazardous air pollutants over time according to certain 

criteria, id. § 7412(b)(2)-(3). Based on this list, the Act

mandates EPA to create a second list of categories of sources

of hazardous air pollutants, id. § 7412(c), like asphalt 

processing plants and industrial dry-cleaning facilities, see 

Revision of Source Category List under Section 112 of the 

Clean Air Act, 70 Fed. Reg. 37819-01 (June 30, 2005).

Importantly, the Act distinguishes between “major” and “area” 

sources. Id. § 7412(a)(1)-(2). According to the Act’s 

definitional provisions, a major source means any source

within a listed category that “emits or has the potential to emit 

considering controls, in the aggregate, 10 tons per year or more 

of any [listed hazardous air pollutant] or 25 tons per year or 

more of any combination of [listed hazardous air pollutants].” 

Id. § 7412(a)(1). Area source means “any stationary source of 

[hazardous air pollutants] that is not a major source.” Id.

§ 7412(a)(2). 

Whether EPA classifies a source as major or area has

major consequences for both sources of hazardous air

pollutants, which must comply with emissions standards, and 

regulatory beneficiaries, who live, work, recreate – and thus 

regularly breathe the air – near sources of hazardous air 

pollutants. For major sources, the Act requires EPA to establish

stringent emissions caps that result in “the maximum degree of 

reduction in emissions . . . (including a prohibition on such 

emissions, where achievable).” Id. § 7412(d). EPA refers to 

these emissions limitations as “Maximum Achievable Control 

Technology” (“MACT”) standards. J.A. 1. The Act mandates 

that MACT standards be “no less stringent than the emission 
7

control that is achieved in practice by the best controlled 

similar source.” Id. § 7412(d)(3). By contrast, for area sources, 

EPA need not set emissions caps at all, save under limited

circumstances. See id. § 7412(c)(3). Moreover, where the 

agency chooses to cap emissions for an area source, it may set 

emissions limits based on “Generally Available Control 

Technology” (“GACT”) standards, which are far more lenient 

than their MACT counterparts.

1

Of course, emissions caps are of little use if sources do not 

comply with them. Presumably in recognition of this, Congress 

enacted Title V of the CAA, 42 U.S.C. § 7661 et seq., which 

makes it unlawful for a source subject to regulations under the 

Act – including GACT or MACT standards under § 112 – to 

operate without a permit, see id. § 7661a(a). Specifically, 

within a year of becoming subject to an obligation under the 

Act, Title V requires a source to submit a permit application 

and compliance plan to a state permitting authority. Id. 

§ 7661b(b)-(c). In addition, a source must certify its 

compliance annually and submit to inspection, monitoring, and 

reporting requirements. Id. § 7661c(a)-(c). A source may apply 

to modify its permit, 40 C.F.R. § 70.7(e), and state permitting 

authorities must provide for public comment and a hearing on 

all permit applications that they receive, 42 U.S.C. § 

7661a(b)(6).

But what if a state permitting authority issues or denies a 

permit application on a ground that a regulated source, or a 

1 As we have observed, the Act does not provide any parameters for 

setting GACT standards, but its legislative history describes GACT 

as “‘methods . . . [that] are commercially available and appropriate 

for application . . . considering economic impacts and the technical 

capabilities of firms to operate and maintain the emissions control 

systems.’” U.S. Sugar Corp. v. EPA, 830 F.3d 579, 595 (D.C. Cir. 

2016) (quoting S. REP. NO. 101-228, at 171 (1989)).
8

regulatory beneficiary believes contravenes the Act? Congress

apparently foresaw this circumstance, too. Indeed, Title V

provides a detailed administrative process that dictates exactly

when and how regulated sources and regulatory beneficiaries 

may seek EPA review of a state permitting authority’s action,

and, ultimately, judicial review of EPA action. See id. § 7611d. 

The process works as follows. First, state permitting authorities 

must submit to EPA all proposed operating permits. Id. 

§ 7611d(a)(1). If any permit contains a provision that the 

Administrator determines is not in compliance with the Act, the 

Administrator must object in writing, and provide a statement 

of reasons for the objection, within forty-five days after 

receiving a copy of the proposed permit. Id. § 7661d(b)(1). If, 

within ninety days of an EPA objection, a permitting authority 

fails to submit a revised permit that satisfies the objection, the 

Administrator must issue or deny the permit in accordance with 

the Act. Id. § 7661d(c). Notably, refusing to revise a permit to 

conform with an EPA objection does not expose a permitting 

authority to any sort of penalty or liability whatsoever. If the 

Administrator does not object in writing within forty-five days 

of receiving a proposed permit, any person – including a 

regulated source or a regulatory beneficiary – may, within 

sixty days after EPA’s forty-five-day objection period expires,

petition the Administrator to object. Id. § 7661d(b)(2). The 

Administrator must grant or deny such a petition within sixty

days after it is filed. Id.

Importantly, for reasons that will become clear, § 7661d 

specifies: (1) that “[n]o objection shall be subject to judicial 

review until the Administrator takes final action to issue or 

deny a permit under this subsection,” id. § 7661d(c); and (2)

that the Administrator’s denial of a petition to object “shall be 

subject to judicial review under section 7607,” id. 

§ 7661d(b)(2). In turn, § 7607 contains the Act’s umbrella 

judicial review provision, which confers jurisdiction in the 
9

appropriate circuit for regionally applicable final action of the 

Administrator and in this Court for, inter alia, final action of 

the Administrator that is “nationally applicable.” Id. 

§ 7607(b)(1).

With an understanding of the major statutory provisions

and some of the regulations that govern the Wehrum Memo,

we now provide fuller descriptions of the Wehrum Memo’s 

predecessor, the Seitz Memo, and the Wehrum Memo itself.

Where appropriate, we take care to note additional applicable

CAA provisions and EPA regulations.

In 1995, without providing notice and comment, John 

Seitz – then Director of EPA’s Office of Air Quality Planning 

and Standards – issued a memorandum to “clarify when a 

major source of [hazardous air pollutants] can become an area 

source” under § 112. J.A. 232 (underline in original). A major 

source may reclassify to an area source by limiting its potential 

to emit to below the major source threshold, the Seitz Memo 

concluded, only until the first date on which it must comply 

with a MACT standard or any other substantive regulatory 

requirement under the Act. Id. at 236. The Seitz Memo referred 

to this policy as “once in, always in.” Id. In other words, under 

the Seitz Memo, once EPA classifies a source as major under 

§ 112 and its first compliance date passes, the source is

ineligible to reclassify as an area source, even if it takes an 

enforceable limit on its potential to emit to below the major 

source threshold. Despite EPA’s stated intention to do so, see 

J.A. 234, the agency never formalized the Seitz Memo through 

notice and comment rulemaking. Nevertheless, the Seitz Memo

has remained in effect for nearly twenty-five years.

On January 25, 2018, however, EPA announced it was

reversing course. That day, William L. Wehrum, Assistant 

Administrator for EPA’s Office of Air and Radiation, and 
10

“principal adviser to the Administrator in matters pertaining to 

air and radiation programs,” 40 C.F.R. § 1.41, issued a fourpage memo to the agency’s Regional Air Division Directors; it

announced that EPA would no longer interpret § 112 in 

accordance with the Seitz Memo. Indeed, the Wehrum Memo 

explains, the agency cannot interpret § 112 in accordance with

the Seitz Memo because the statute’s plain-language “compels 

the conclusion” that a major source becomes an area source at 

such time when it takes an enforceable limit on its potential to 

emit to below the major source threshold. J.A. 1. Congress, the 

Wehrum Memo argues, placed no “temporal limitations” on 

when a major source is eligible to reclassify as an area source. 

Id. at 3. Accordingly, the Wehrum Memo declares that when

a source previously classified as major limits its potential to 

emit to below the major source threshold, it “will no longer be 

subject either to the major source MACT or other major source 

requirements that were applicable to it as a major source under 

CAA section 112.” Id. at 1. In addition, the Wehrum Memo

states that it “supersedes” the Seitz Memo, id., and it instructs

that “[t]he Regional offices should send this memorandum to 

states within their jurisdiction,” id. at 4. 

II.

Before explaining why the Wehrum Memo is not final 

agency action, we take a moment to clarify the proper test for 

finality. In this Court, its contours have become blurred amidst 

the “considerable smog,” Ass’n. of Flight Attendants v. Huerta,

785 F.3d 710, 717 (D.C. Cir. 2015), enshrouding the related 

but separate analysis of whether an agency action is a 

legislative rule. In Flight Attendants, for example, we framed 

the finality inquiry as asking whether an action is “nonbinding” or a “binding legislative rule,” Flight Attendants, 785

F.3d at 716, and we held that the guidance document at issue 

was nonfinal because it was “not a legislative rule carrying the 
11

‘force and effect of law,’” id. (quoting Perez, 135 S. Ct. at

1204). Likewise, in National Mining, we opined that in order 

to analyze whether an action is final, we must first “take a step 

back” and analyze whether the rule is a legislative rule, 

interpretive rule, or general statement of policy. Nat’l Min.

Ass’n, 758 F.3d at 251-52. The most important factor in this 

analysis, we continued, is whether an action has “actual legal 

effect,” id. at 252, and we held that the action at issue did not 

and was therefore unreviewable, id. at 252-53.

Subsuming the finality analysis within the test for whether 

a rule is legislative is not always inappropriate; if a rule is 

legislative it has the force and effect of law, and a legislative 

rule is thus necessarily final. As the Supreme Court has twice

reminded us within the last five years, however, if a rule is final 

it is not necessarily legislative, and therefore the finality 

analysis is distinct from the test for whether an agency action 

is a legislative rule.

In United States Army Corps of Engineers v. Hawkes Co., 

136 S. Ct. 1807 (2016), the Court affirmed that the two-prong 

test in Bennett v. Spear, 520 U.S. 154 (1997), remains finality’s

touchstone, see Hawkes, 136 S. Ct. at 1813 (quoting Bennett, 

520 U.S. at 177-78) (“First, the agency 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.”). In Hawkes, the question of whether 

the agency action at issue was the consummation of the 

agency’s decisionmaking process was not in dispute. 

Accordingly, the Court’s analysis focused on whether the 

action satisfied the second prong of Bennett. Notably, in 

undertaking this inquiry, the Court neither asked whether the 

action at issue had the force and effect of law nor made a single 

mention of legislative rules. Rather, the Court’s inquiry 
12

focused on whether the action at issue gave “rise to ‘direct and 

appreciable legal consequences.’” Hawkes, 136 S. Ct. at 1814 

(quoting Bennett, 520 U.S. at 178). 

Perez, too, makes clear that the finality analysis is distinct 

from the test for whether a rule is legislative. There, the Court 

affirmed the “longstanding recognition that interpretive rules 

do not have the force and effect of law.” Perez, 135 S. Ct. at 

1208 (internal citations omitted). Accordingly, overruling 

Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 

(D.C. Cir. 1997), the Court held that the APA does not require 

an agency to provide notice and comment in amending an 

interpretive rule, even if the new rule deviates significantly 

from its predecessor. Id. at 1206. In so holding, the Court

reassured regulated entities and regulatory beneficiaries that

they are not without recourse should an agency – perhaps to

evade notice and comment – repudiate a longstanding

interpretive rule by way of a second interpretive rule. Id. at 

1209. In such a circumstance, the Court explained, an affected 

party can seek judicial review pursuant to the APA. Id. Because 

only final agency action is reviewable under the APA, see 5 

U.S.C. § 704, Perez thus affirms that interpretive rules can be 

final, and, by implication, that the test for finality is

independent of the analysis for whether an agency action is a 

legislative rule rather than an interpretive rule.

As commentators explain, maintaining an independent

finality analysis is not merely a theoretical nicety; it has several 

salutary effects in practice. For example – as Perez alludes to, 

see 135 S. Ct. at 1209 – maintaining a finality analysis that is 

distinct from the test for whether a rule is legislative permits 

courts to review nonlegislative rules and thus safeguards 

against agencies evading both judicial review and notice and 

comment by acting via nonlegislative rules. See William Funk, 

Final Agency Action After Hawkes, 11 N.Y.U.J. L. & LIBERTY
13

285, 304 (2017). This is especially important when viewed 

from the perspective of regulatory beneficiaries, who are 

generally not parties to enforcement actions, and, therefore, 

may only be able to challenge nonlegislative rules via judicial 

review. See Nina A. Mendelson, Regulatory Beneficiaries and 

Informal Agency Policymaking, 92 CORNELL L. REV. 397, 420-

24 (2007). 

Having clarified the proper test for finality, we now apply 

it to the Wehrum Memo. Consistent with the interpretive 

method we endorse herein, we hew closely to the CAA 

provisions and EPA regulations appertaining thereto.

Our first question is whether the Wehrum Memo “mark[s] 

the consummation of [EPA’s] decisionmaking process.” 

Hawkes, 136 S. Ct. at 1813 (quoting Bennett, 520 U.S. at 177-

78). It does. Notably, neither Respondent nor Intervenor offer 

substantive argument to the contrary. They were smart to save 

their ink. The Wehrum Memo unequivocally states that the 

plain language of § 112 “compels” the legal conclusion that 

qualifying major sources can reclassify at such time that they 

take an enforceable limit on their potential to emit to below the 

major source threshold. J.A. 1. In other words, the Wehrum 

Memo does not advance what EPA believes is a reasonable 

interpretation of § 112; it advances what EPA believes is the 

only permissible interpretation of the statute. Moreover, no 

mere subordinate issued the Wehrum Memo. Far from it. The

Assistant Administrator for the Office of Air and Radiation

issued it. As discussed, under EPA regulations, he is the 

“principal advisor to the Administrator in matters pertaining to 

air and radiation,” see 40 C.F.R. § 1.41, and, as we have held 

previously with respect to the Assistant Administrator for the 

Office of Air and Radiation, nothing within EPA’s regulations 

provides us “reason to question his authority to speak for the 

EPA.” Her Majesty the Queen in Right of Ontario v. EPA, 912 
14

F.2d 1525, 1532 (D.C. Cir. 1990) (internal citations omitted). 

Cf. Soundboard Ass’n. v. FTC, 888 F.3d 1261, 1267-69 (D.C. 

Cir. 2018), cert denied 139 S. Ct. 1544, 2019 WL 1590248 

(Apr. 15, 2019) (Federal Trade Commission (“FTC”) staff 

opinion letter not consummation of agency’s decisionmaking 

process because FTC regulations expressly delineated between 

Commission advice and staff advice and provided petitioners

opportunity to seek opinion from Commission itself).

Moreover, EPA published notice of the Wehrum Memo, and 

reiterated its principal conclusion, in the Federal Register. See

83 Fed. Reg. 5543-01 (Feb. 8, 2018). Accordingly, the 

Wehrum Memo can only reasonably be described as EPA’s last 

word on when a major source can reclassify to an area source 

under § 112. 

Because the Wehrum Memo satisfies Bennett’s first prong,

we ask next whether it has “direct and appreciable legal 

consequences.” Hawkes, 136 S. Ct. at 1814 (quoting Bennett, 

520 U.S. at 178). Petitioners argue that it does because it 

creates a new right – i.e. it allows major sources unable to 

reclassify to area sources under the Seitz Memo to so 

reclassify. Cal. Pet’rs’ Br. 17-20. Respondent counters that the 

Wehrum Memo does not change the rights of regulated 

sources. EPA Br. 26-28. Whether or not a regulated source has 

the right to reclassify, Respondent contends, is only determined

within the Title V permitting process. Id. (citing 42 U.S.C. § 

7661d).

For reasons now explained, we hold that the Wehrum 

Memo does not have a single direct and appreciable legal 

consequence.

Hawkes instructs that whether an agency action has direct 

and appreciable legal consequences is a “‘pragmatic’” inquiry. 

Id. at 1815 (quoting Abbot Labs. v. Gardner, 387 U.S. 136, 149 
15

(1967)). In characterizing the inquiry as pragmatic, we do not

take the Court to be encouraging some sort of common-sense

approach. Quite the opposite. We take it as counseling lower 

courts to make Bennett 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. Thus, in Hawkes, the Court held, in part, that the agency

determination at issue had direct and appreciable legal 

consequences because, under the applicable statutes and 

regulations, if petitioners failed to heed the determination they 

did so at the risk of significant criminal and civil penalties. Id. 

And the cases Hawkes relies on as past examples of the

“pragmatic approach [the Court] has long taken to finality”

hold similarly. Id. (citing and quoting Sackett v. EPA, 566 U.S. 

120, 126 (2012) (holding that agency action at issue satisfied 

Bennett prong-two because, under the relevant statutes and 

regulations, it appeared to expose petitioners to double 

penalties in a future enforcement proceeding and to limit their 

ability to obtain a certain type of permit); Abbot Labs., 387 U.S.

at 152 (holding that action at issue had a “sufficiently direct 

and immediate” impact on petitioners, such that judicial review 

was appropriate, because, under the governing statutes and 

regulations, noncompliance risked “serious criminal and civil 

penalties”); Frozen Food Express v. United States, 351 U.S. 

40, 44 (1956) (same)).

Quite recently, in Valero Energy Corporation v. EPA, No. 

18-1028, 2019 WL 2587837 (D.C. Cir. June 25, 2019), we 

affirmed this approach. At issue there, like here, was whether 

an EPA guidance document that declared the agency’s 

interpretation of a statute was final under the Act. We held that 

it was not. Assessing it within the context of the Act, we 

emphasized that: (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; 
16

(3) EPA acknowledged at oral argument that the guidance had 

no independent legal authority; and (4) that the Act provided 

regulated parties a statutory mechanism by which to challenge 

any EPA action that was premised on the statutory 

interpretation that the guidance advanced. Valero, 2019 WL at 

*3-5.

Assessing the Wehrum Memo under Hawkes and in 

accordance with Valero, we find that it is not final. True, it

unequivocally declares that major sources, at such time that

they limit their potential to emit to below the major source 

threshold, “will no longer be” subject to MACT standards. 

J.A. 1. Viewed within the context of the Act, however, the 

Wehrum Memo is all bark and no bite. As Respondent averred 

twice at oral argument, neither EPA nor any regulated source 

can rely on the Wehrum Memo within the Title V permitting 

process or in any other proceeding. Oral Arg. 50:15-50:27, 

1:01:13-1:01:50. In other words, as Respondent concedes, 

although the Wehrum Memo forecasts EPA’s position as to

§ 112, it has no independent legal authority. In addition, under 

the Act and EPA regulations, a state permitting authority that 

refuses to comply with the Wehrum Memo faces no penalty or

liability of any sort. Further still, the instant matter does not 

present a circumstance where the action at issue may be legally 

consequential because its binds agency staff and affected 

parties have no means (outside of judicial review) by which to 

challenge it. To the contrary, the Act contains clear provisions 

pursuant to which: (1) a state permitting authority can refuse to 

apply the Wehrum Memo and seek judicial review if EPA 

issues a permit over its refusal, id. § 7661d(c); and (2) a 

regulatory beneficiary can petition EPA to object to a state 

permitting authority’s application of the Wehrum Memo and

seek judicial review if EPA denies the petition, id. § 

7661d(b)(2). 
17

Accordingly, although the Wehrum Memo, in no uncertain 

terms, forecasts EPA’s definitive interpretation of § 112, it has 

no direct and appreciable legal consequences: neither EPA nor 

regulated sources can rely on it as independently authoritative

in any proceeding; state permitting authorities face no penalty 

or liability of any sort in ignoring it; and state permitting 

authorities and regulatory beneficiaries have clear statutory 

avenues by which to challenge a permitting decision adopting 

the reasoning of the Wehrum Memo and seek judicial review 

if EPA fails to sustain their challenges. Under § 7661d(c), if a 

state permitting authority refuses to issue a permit allowing a 

major source to reclassify as an area source, and EPA 

subsequently issues such a permit following the reasoning of 

the Wehrum Memo, judicial review is appropriate. Under 

§ 7661d(b)(2), if EPA, following the reasoning of the Wehrum 

Memo, denies a petition from any person asking the agency to 

object to a state permitting authority’s issuance of a permit that 

allows a major source to reclassify as an area source, judicial 

review is appropriate. Indeed, because Congress specified that 

“[n]o objection shall be subject to review until the 

Administrator takes final action to issue or deny a permit under 

this subsection,” § 7661d(c), we would contravene 

Congressional intent if we were to hold that a memo that 

merely forecasts a future objection is final agency action and 

subject to judicial review at this time.

The dissent insists that the Wehrum Memo satisfies 

Bennett’s second prong because it “altered the legal regime.” 

Dis. Op. 12. Indeed, the dissent forewarns, the Wehrum Memo

“commands, orders, and dictates [to]” EPA employees, id. at 4,

and “state permitting authorities are subject to” the statutory 

interpretation it advances, id. Said differently, according to the 

dissent, because of the Wehrum Memo, sources subject to 

MACT standards that limit their potential to emit to below the 

major source threshold are now “assured that they will be 
18

subject to decreased regulation with EPA’s support.” Id. at 12

(emphasis added).

While the question is not free from doubt, we respectfully 

disagree. As noted above, we must remain laser focused on 

whether the Wehrum Memo gives “rise to ‘direct and 

appreciable legal consequences.’” Hawkes, 136 S. Ct. at 1814 

(quoting Bennett, 520 U.S. at 178), and when viewed in its 

specific regulatory context, it does not. “[M]ajor sources must 

comply with technology-based emission standards requiring 

the maximum degree of reduction in emissions EPA deems 

achievable, . . . [and] [i]n order to obtain an operating permit 

under title V of the [CAA], major sources must comply with 

extensive monitoring, reporting and record-keeping 

requirements. Nat'l Min. Ass'n v. U.S. E.P.A., 59 F.3d 1351, 

1353 (D.C. Cir. 1995). Major sources must obtain a permit in 

order to operate, and unless and until that permit is amended or 

set aside, the stringent requirements set forth therein must be 

complied with while that equipment is operational. The 

Wehrum Memo itself does not revoke or amend a single 

permit. As acknowledged by the Ohio environmental 

authorities in materials cited by petitioners, “[i]f you want to 

take advantage of the new guidance [in the Wehrum Memo], 

you will need to submit an application to modify your current 

permit.” Environmental Pet’rs’ Br., Standing Addendum 0198. 

Assuredly, although the Wehrum Memo advises EPA 

employees of the agency’s position as to § 112, it does not bind

state permitting authorities or assure regulated entities of the 

ability to reclassify. As EPA concedes, EPA Br. 21, 25, in 

receiving such an application to modify a permit, a state 

permitting authority may – with total impunity – ignore the 

Wehrum Memo and deny the application. It is true that the 

Administrator must issue a revised permit over the state 

permitting authority’s protest if he or she believes that the 

statute so requires, § 7661d(c), but in such a case, the statute
19

explicitly provides the state permitting authority a mechanism 

by which to seek judicial review of the Administrator’s action. 

Id. Regardless of whether Congress generally intended to 

allow pre-enforcement review of guidance documents under 

some circumstances in the CAA, here, as described above, 

Congress specifically directed that judicial review shall not be

available until the Title V permit amendment process reaches a 

conclusion, see §§7661d(b)(2), 7661d(c). Congress’ explicit 

understanding of finality in this specific statutory context 

controls our consideration of the instant guidance document, 

which pertains to that same permit amendment process.

***

Before concluding, we note that we have twice had 

occasion to ask whether an EPA guidance document that 

implicated the Act’s Title V permitting process was final 

agency action: first in Appalachian Power Co. v. EPA, 208 

F.3d 1015, 1021 (D.C. Cir. 2000), then in National 

Environmental Development Ass’n v. EPA, 752 F.3d 999 (D.C. 

Cir. 2014). In each, we found that the guidance at issue was 

final. A brief analysis of our reasoning in those cases 

demonstrates why the Wehrum Memo is not. 

In Appalachian Power, at issue was a nineteen-page

guidance document relating to certain monitoring requirements 

for Title V sources. Appalachian Power, 208 F.3d at 1019-20. 

In assessing our jurisdiction over the guidance, we did not 

consider § 7611d. Instead, we framed our jurisdiction solely in 

terms of § 7607(b)(1). See id. at 1021 n. 10 (“Our jurisdiction 

extends to ‘any . . . nationally applicable . . . final action taken 

by,’ the EPA ‘Administrator.’”) (quoting 42 U.S.C. 

§ 7607(b)(1))). We predicated our holding that the guidance 

was final on the following findings. First, we found that it

required state permitting authorities to: (1) “review their 
20

emission standards and the emission standards EPA has 

promulgated to determine if the standards provide enough 

monitoring;” and (2) “insert additional monitoring 

requirements as terms or conditions of a permit . . . if they 

believe existing requirements are inadequate, as measured by 

EPA’s multi-factor, case-by-case analysis set forth in the 

Guidance.” Id. at 1022. Second, we found that EPA did not 

dispute petitioners’ assertion that state permitting authorities 

were relying on EPA’s guidance in insisting that regulated 

sources utilize a monitoring method that was more burdensome 

than the monitoring method set out under existing EPA 

regulations. Id. at 1023 & n.17. Finally, we found that a 

challenge to an individual permit applying the guidance would 

not be heard in this Court, presumably because we felt any such 

challenge would have only regional implications. Id. at 1023 n.

18.

In National Environmental, the guidance document before 

us explained that, due to a decision of the Sixth Circuit, EPA

was altering a certain interpretation of its regulations only for

Title V sources located within the Sixth Circuit’s jurisdiction. 

Nat’l Envtl., 752 F.3d at 1003. As in Appalachian Power, in 

assessing our jurisdiction over the guidance, we asked only 

whether it was final under § 7607(b)(1) and made no mention 

of § 7661d. Id. at 1006. In holding that it was final, we found 

that the “finality and legal consequences” of the guidance 

“were made plain” when EPA “relied on [it]” in approving a 

Federal Implementation Plan (“FIP”) “involving a company 

located outside the jurisdiction of the Sixth Circuit.” Id. at 1007 

(citing 78 Fed. Reg. 17836, 17842 & n. 10 (March 22, 2013)).

Indeed, within the FIP approval – which is a final, legislative 

rule carrying the force and effect of law – EPA cited the 

guidance as the sole authority for the legal conclusion that 

certain regulations applied to certain sources located outside of 
21

the Sixth Circuit’s jurisdiction. See 78 Fed. Reg. 17836, 17842 

& n.10 (March 22, 2013)

Appalachian Power and National Environmental are thus, 

contrary to what the dissent suggests, see Dis. Op. 2-3, distinct 

from the instant matter in a crucial respect. In those cases, we

held that the guidance documents at issue were final under § 

7607(b)(1), without reference to § 7661d, because EPA and

state permitting authorities wielded them to effectuate legal 

consequences. In Appalachian Power, we found that the 

guidance at issue required state permitting authorities to take at 

least two specific actions and that EPA did not deny that state 

permitting authorities used it to coerce regulated sources to 

adopt a stricter monitoring method. In National Environmental, 

we found that EPA cited the guidance, within a binding FIP 

approval, as the sole authority in support of a legal conclusion.

By contrast, the Wehrum Memo does not require any entity or 

person to do anything, and EPA concedes that it has not, will 

not, and cannot rely on it in any proceeding. Accordingly, 

unlike in Appalachian Power and National Environmental, we 

have no basis to conclude, without reference to § 7661d, that

we have jurisdiction over the guidance before us under 

§ 7607(b)(1). We note, in addition, that in Appalachian Power, 

we found that we would lack jurisdiction over challenges to 

permitting decisions applying the guidance at issue. Here, 

however, any party entitled to review under § 7661d that 

wishes to challenge an application of the Wehrum Memo in this 

Court will be so heard, since the Wehrum Memo’s principal 

conclusion is nationally applicable. See § 7607(b)(1).

In sum, we find that the Wehrum Memo – assessed within 

the context of the Act and EPA regulations – is not final agency 

action, and we dismiss the petitions for lack of subject matter

jurisdiction under the Act. The Wehrum Memo marks the 

consummation of EPA’s decisionmaking process as to when a 
22

major source may reclassify to an area source under § 112. But 

the Wehrum Memo does not have direct and appreciable legal 

consequences: it does not require anyone to do anything;

neither EPA nor regulated sources can rely on it in any 

proceeding; state permitting authorities face no penalty or 

liability in ignoring it; state permitting authorities and 

regulatory beneficiaries have clear statutory avenues by which 

to challenge it and seek judicial review if EPA refuses to heed 

their challenges; and any such challenges, if so desired, will be 

heard in this Court.

III.

To conclude, we note that we are under no illusion that this 

opinion will be the Rosetta Stone of understanding the nature 

of agency action. Developing this area of the law is indeed an

“important continuing project.” Nat’l Min. Ass’n, 758 F.3d at 

251. Nonetheless, today we humbly submit our contribution 

toward clarifying this somewhat gnarled field of jurisprudence. 

In ascertaining the nature of an agency action, we emphasize, 

courts should look first to the matrix of statutes and regulations 

governing that specific action. In addition, we offer a gentle 

reminder that the finality analysis is sui generis, separate and 

distinct from the test for whether an agency action is a 

legislative rule.

So ordered.
 ROGERS, Circuit Judge, dissenting: On February 8, 2018, 

EPA formally announced in the Federal Register that “the plain 

language of the definitions of ‘major source’. . . and of ‘area

source’ in Section 112 of the [Clean Air Act] compels the 

conclusion that a major source becomes an area source at such 

time that the source takes an enforceable limit on its potential 

to emit [] hazardous air pollutants [] below the major source 

thresholds . . . .” 83 Fed. Reg. 5543 (Feb. 8, 2018) (emphasis

added). “In such circumstances, a source that was previously 

classified as major . . . will no longer be subject either to the 

major source [maximum achievable control technology] or 

other major source requirements that were applicable to it as a

major source under CAA section 112.” Id. Further, EPA stated 

this guidance memorandum “supersedes” the prior guidance in 

the May 1995 Seitz memorandum barring such 

reclassifications. Id. The guidance memorandum referred to 

in the Federal Register Notice was issued under the signature 

of William L. Wehrum, EPA Assistant Administrator for the 

Office of Air and Radiation. Petitioners now seek preenforcement review of the Wehrum Memorandum pursuant to 

42 U.S.C. § 7607(b)(1), contending that the guidance 

memorandum is a legislative rule issued without notice and 

comment. 

I. 

Section 7607(b)(1) provides that this court shall have 

jurisdiction to review nationally applicable “final action taken” 

by the Administrator of EPA. 42 U.S.C. § 7607(b)(1). The 

term “final action” in Section 7607(b)(1) is synonymous with 

“final agency action” in the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 704. Whitman v. Am. Trucking Ass’ns, 

Inc., 531 U.S. 457, 478 (2001). The finality inquiry itself is 

governed by the test articulated in Bennett v. Spear, 520 U.S. 

154 (1997). Sackett v. EPA, 566 U.S. 120, 126–27 (2012). An 

agency action is final if: (1) the action marks the 

“consummation of the agency’s decisionmaking process,” and 
2 

(2) the action is one “by which rights or obligations have been

determined, or from which legal consequences will flow.” 

Bennett, 520 U.S. at 177–78 (internal quotation marks and 

citation omitted) (emphases added). 

The Supreme Court has “characterized the special judicial 

review provision of the CAA, 42 U.S.C. § 7607(b), as one of 

those statutes that specifically provides for ‘preenforcement’ 

review.” Whitman, 531 U.S. at 479 (citing Ohio Forestry 

Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998)). In addressing 

ripeness, the Court has pointed out that the CAA “permit[s] 

‘judicial review directly, even before the concrete effects 

normally required for APA review are felt.’” Id. at 479–80 

(quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 

891 (1990)). This court, in turn, recognized that “Congress has 

emphatically declared a preference for immediate review with 

respect to Clean Air Act rulemaking,” NRDC v. EPA, 643 F.3d 

311, 320 (D.C. Cir. 2011) (internal quotations and citations 

omitted), which is what petitioners contend the Wehrum 

Memorandum is. So understood, the statutory scheme not only 

allows but encourages pre-enforcement review of final actions 

such as the Wehrum Memorandum. 

A. 

The court has repeatedly held that judicial review is 

available pursuant to Section 7607(b)(1) for guidance 

documents that bind EPA officials on how to make Title V 

permitting decisions. 

In Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 

(D.C. Cir. 2000), the court considered a guidance document 

instructing that a source’s Title V permit must include periodic 

monitoring requirements to ensure compliance with certain 

federal or state standards. The guidance document thus 

reflected “a position [EPA] plans to follow in reviewing State-
3 

issued permits” and “a position EPA officials in the field are 

bound to apply.” Id. at 1022. The court explained that the 

guidance document had legal consequences for both 

enforcement officials and regulated entities because it “reads 

like a ukase. It commands, it requires, it orders, it dictates.” 

Id. at 1023. The court held that the guidance document was a 

final action over which the court had jurisdiction pursuant to 

Section 7607(b). Id. at 1022–23 & n.10. 

Also, in National Environmental Development Ass’n’s 

Clean Air Project v. EPA, 752 F.3d 999, 1007 (D.C. Cir. 2014), 

this court held that a guidance document on how EPA would 

determine whether groups of activities qualified as a “single 

stationary source” or multiple sources in Title V permits was a

final action. The guidance document had legal consequences, 

the court explained, because it “provides firm guidance to 

enforcement officials about how to handle permitting 

decisions” and “compels agency officials” to apply certain 

permitting standards. Id. (emphasis in original). The court 

held that the guidance was “final agency action that is subject

to judicial review” pursuant to Section 7607(b)(1). Id. at 1006–

07. 

Similarly, in the context of review of state implementation 

plans required by the CAA, the court held in Natural Resources 

Defense Council, 643 F.3d at 320, that a guidance document 

that “definitively interpreted” a provision of the CAA “altered

the legal regime” because it required EPA officials to consider

alternatives to a specific program when reviewing state 

implementation plans. The court explained that the guidance 

“binds EPA regional directors and thus qualifies as final.” Id. 

In sum, the court has repeatedly held that guidance 

documents, which on their face bind enforcement officials to 

apply a certain standard or interpretation under the CAA, 
4 

including in the Title V context, are final actions subject to 

review pursuant to Section 7607(b)(1). 

The Wehrum Memorandum states the law that EPA 

officials must apply in Title V permitting. Addressed to EPA 

Regional Air Division Directors, the Wehrum Memorandum 

“provides firm guidance to enforcement officials about how to 

handle permitting decisions.” Nat. Envmtl. Dev., 752 F.3d at 

1007. By its express terms, the Wehrum Memorandum 

unequivocally provides the interpretation of Section 112 that is 

to be applied by EPA employees. See NRDC, 643 F.3d at 320. 

The Wehrum Memorandum explains that the plain text of 

Section 112 “compels the conclusion that a major source 

becomes an area source at such time that the source takes an 

enforceable limit on its potential to emit . . . below major 

source thresholds.” Wehrum Memorandum at 1 (emphasis 

added). Referencing its legal consequences, the Wehrum 

Memorandum instructs that upon taking such a limit on its 

potential to emit below the major source thresholds, a source 

“will not be subject thereafter to those requirements applicable 

to the source as a major source under CAA section 112.” Id. at 

4 (emphasis added). Like the guidance document in 

Appalachian Power, 208 F.3d at 1023, the Wehrum 

Memorandum “reads like a ukase.” It commands, orders, and 

dictates without caveats or disclaimers about the binding nature 

of its statutory interpretation. Compare id., with Nat. Mining 

Ass’n v. McCarthy, 758 F.3d 243, 252–53 (D.C. Cir. 2014). It 

expressly “supersedes” EPA’s prior interpretation, stating that

the Seitz Memorandum is withdrawn, “effective immediately.” 

Wehrum Memorandum at 1. 

Under the statutory scheme, state permitting authorities 

are subject to the statutory interpretation announced in the 

Wehrum Memorandum stating EPA’s unequivocal position. 

The Wehrum Memorandum directs EPA enforcement officials 
5 

to send the memorandum to the States and thereby, in light of 

the Federal Register Notice, puts States doubly on notice that 

EPA’s interpretation of Section 112 has changed, effective 

immediately. Given the text, structure, and purpose of the 

CAA, state permitting authorities are not free to ignore EPA’s 

new interpretation of Section 112. The statutory scheme is 

based on a partnership between federal and state governments, 

whereby EPA sets federal standards and States develop 

implementation plans to set emissions limitations and 

standards to conform to these federal standards. Appalachian 

Power, 208 F.3d at 1019. “Typically, EPA delegates to the 

States its authority to require companies to comply with federal 

standards.” Id. The terms and conditions in permits issued 

under Title V incorporate the applicable federal standards for 

individual sources. Id. Reinforcing that States must act in 

conformity with the Wehrum Memorandum, the CAA 

prohibits the Administrator of EPA from approving a state 

implementation plan under Title V except “to the extent that 

the program meets the requirements of [the CAA].” 42 U.S.C. 

§ 7661a(d)(1). If a State proposes to issue an individual permit 

that does not comply with the CAA requirements, then the 

Administrator “shall” object. Id. § 7661d(b)(1). The 

Administrator is authorized to modify an individual permit. Id. 

§ 7661d(e). The CAA even contemplates that a state permitting 

authority can be sanctioned for not adequately administering 

and enforcing a program. Id. § 7661a(i). 

In sum, by announcing an unequivocal interpretation of 

which federal standards apply to which sources under the CAA, 

“EPA expects States to fall in line.” Appalachian Power, 208 

F.3d at 1023. Through the Wehrum Memorandum, EPA has 

instructed its employees that the plain text of the CAA includes 

no temporal limitation on the reclassification of “major 

sources.” By publicly announcing an unequivocal statement 

that the plain text of the CAA “compels” its conclusion, EPA 
6 

has given States their “marching orders” to allow 

reclassification of major sources. Id. And States have heeded 

EPA’s direction. See, e.g., Kuiken Decl. ¶¶ 6, 11 & Att.; 

McCloud Decl. ¶¶ 6, 10 & Att.; Gharrity Decl. Att. (Ohio EPA 

publication providing guidance to regulated entities treating the 

Wehrum Memorandum as binding); see also Standing Add. 43, 

45, 48, 52–53, 57, 275. 

Therefore, under this court’s precedent issuance of the 

Wehrum Memorandum is final action subject to judicial review 

pursuant to Section 7607(b)(1) because it provides EPA’s 

unequivocal interpretation on the reclassification of “major 

sources,” thereby binding EPA enforcement officials. 

B. 

Contrary to the court’s conclusion, the Wehrum 

Memorandum is final action under the two-prong Bennett v. 

Spear test. 520 U.S. at 177–78. First, the Wehrum 

Memorandum marks the consummation of EPA’s 

decisionmaking process with respect to its interpretation of 

whether Section 112 of the CAA allows major sources to 

reclassify as area sources at any time. The Wehrum 

Memorandum is unequivocal — if a major source “takes an 

enforceable limit on its potential to emit . . . below the major 

source thresholds,” the CAA “compels” that the source can 

reclassify as an area source at that time. Wehrum 

Memorandum at 1. It states the official position of the EPA 

Administrator; in signing the guidance memorandum, the 

Assistant Administrator for the Office of Air and Radiation was

acting on behalf of the Administrator. See 40 C.F.R. § 1.41; 

Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 

1525, 1532 (D.C. Cir. 1990). Addressed to the Regional Air 

Division Directors, it instructs the Regional offices on what 

Section 112 of the CAA “compels,” and to “send this 

memorandum to states within their jurisdiction.” Id. at 4. By 
7 

Federal Register Notice, EPA announced to the public it had 

abandoned its prior interpretation and now concluded the plain 

text of Section 112 imposed no temporal limit on 

reclassifications by “major sources.” 83 Fed. Reg. at 5543. 

Regardless of whether EPA may change its position in the 

future, see, e.g., Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 

(D.C. Cir. 2002); Appalachian Power, 208 F.3d at 1022, the 

Wehrum Memorandum marks EPA’s unequivocal statutory 

interpretation of whether “major sources” may, at any time, 

reclassify under the CAA upon limiting their potential to emit 

hazardous pollutants. 

Second, the Wehrum Memorandum is an action “from 

which legal consequences will flow” because it announces a 

binding change in the legal regime. Bennett, 520 U.S. at 178 

(emphasis added); see also U.S. Army Corps of Engineers v. 

Hawkes Co., 136 S. Ct. 1807, 1814–15 (2016); NRDC, 643 

F.3d at 319–20; Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 

420, 427 (D.C. Cir. 2004); Appalachian Power, 208 F.3d at 

1020–21. The Wehrum Memorandum alters the legal regime 

by changing the regulatory requirements for any “major 

source” that “takes an enforceable limit on its potential to emit 

. . . below major source thresholds.” Wehrum Memorandum at 

1. Those sources now have the opportunity to reclassify as area 

sources at any time by limiting their potential to emit below 

major source thresholds and thereafter will not be subject to the 

more onerous major source requirements, such as the 

Maximum Achievable Control Technology standards. 

The court’s recent decision in Valero Energy Corp. v. 

EPA, 927 F.3d 532 (D.C. Cir. 2019) reaffirms that legal 

consequences will flow from the Wehrum Memorandum. 

There, the court held legal consequences did not flow from a 

guidance document that interpreted EPA’s duty to conduct 

“periodic reviews” of renewable fuel standards under 42 
8 

U.S.C. § 7545(o)(11) and explained how EPA’s prior actions 

fulfilled any statutory duty to conduct periodic reviews. Id. at 

535. The document did not purport bind EPA to its 

interpretation and had no identifiable effect on the regulated 

community. Id. at 536–37. Here, in contrast, the Wehrum 

Memorandum announces a binding interpretation that has an 

identifiable effect on major sources that take enforceable limits 

on their potential to emit below major source thresholds. 

EPA’s contrary position, that the Wehrum Memorandum 

is not final because it has no immediate impact or direct legal

consequences for specific sources, misstates the finality test. 

“The test for finality . . . is not so narrow — it is met if ‘the 

action [is] one by which rights or obligations have been 

determined, or from which legal consequences will flow.’” 

Harris v. FAA, 353 F.3d 1006, 1011 (D.C. Cir. 2004) (quoting 

Bennett, 520 U.S. at 178) (emphasis added). The court’s 

suggestion that the Wehrum Memorandum is “all bark and no 

bite,” Op. 16, ignores its plain text as well as the second clause 

of the second prong of the Bennett v. Spear test. With EPA’s 

blessing, legal consequences will flow from the Wehrum 

Memorandum no later than when “major sources” take 

enforceable limits on their potential to emit below “major 

source” thresholds and obtain new or modified Title V permits. 

Indeed, such legal consequences have already occurred; EPA 

acknowledged that at least two “major sources” in Indiana have 

reclassified as area sources as of filing of the briefs in the 

instant appeal, and the Sierra Club has identified numerous 

other “major sources” that are eligible to reclassify. Resp’t’s 

Br. 29; Kuiken Decl. ¶ 6 & Att.; McCloud Decl. ¶ 5 & Att. 

Additionally, the opportunity for judicial review at a later 

time has no direct bearing on the availability of preenforcement review of the Wehrum Memorandum. Section 

7661d provides for judicial review under Section 7607 of an 
9 

Administrator’s objection or denial of a petition to object to a 

specific Title V permit for a specific source. 42 U.S.C. 

§ 7661d(b). Petitioners are not challenging a source-specific 

objection. Instead, they seek review of a generally applicable

guidance document pursuant to Section 7607(b), which 

provides for judicial review of such a general guidance 

document that is a “final action.” Id. § 7607(b)(1). The two 

provisions for judicial review serve different purposes. 

Judicial review of national standards at the start of the 

regulatory process can ensure that Congress’s intent is being 

carried out before States and the regulated community must 

take costly implementing actions, while later enforcement 

review can ensure compliance with terms and conditions in 

individual permits. Nothing in the text, structure, purpose, or 

legislative history of the CAA indicates the availability of 

review of a decision in a source-specific Title V proceeding 

under Section 7661d would preclude pre-enforcement review 

of a general guidance document under Section 7607(b). That 

both exist in the CAA is a rational approach for complex 

legislation where Congress intended to bring about significant 

changes to the status quo impacting the environment, the 

public, and entities emitting hazardous air pollutants. See 

Appalachian Power, 208 F.3d at 1017; see generally Hon. 

Henry A. Waxman, An Overview of the Clean Air Act 

Amendments of 1990, 21 ENVTL. L. 1721, 1723, 1742 (1991). 

Put otherwise, the provision of judicial review of Title V permit 

decisions “in one section of a long and complicated statute” is

hardly sufficient to overcome Congress’s decision to provide 

pre-enforcement review. See Sackett, 132 S. Ct. at 1373. Not 

only does nothing in the text of Section 7661d override the 

provision for pre-enforcement review under Section 7607(b), 

the Supreme Court has acknowledged the CAA encourages 

pre-enforcement judicial review. See Whitman, 531 U.S. at 

479 (quoting Ohio Forestry, 523 U.S. at 737); see also NRDC, 

643 F.3d at 320. 
10 

Furthermore, Congress’s express purpose in enacting the 

CAA was “to promote the public health and welfare and the 

productive capacity of [the Nation’s] population.” 42 U.S.C. 

§ 7401(b)(1). Delaying the opportunity for judicial review 

until individual source permit enforcement proceedings could 

effectively squelch the opportunity for regulatory beneficiaries 

to obtain judicial review of an agency’s position. See Nina A. 

Mendelson, Regulatory Beneficiaries and Informal Agency 

Policymaking, 92 CORNELL L. REV. 397, 420–24 (2007) 

(“Mendelson”). Title V does provide regulatory beneficiaries 

the opportunity to file a petition to object and to seek judicial 

review of denial of a petition to object in individual permitting 

proceedings. 42 U.S.C. § 7661d(b)(2). Yet requiring 

regulatory beneficiaries to monitor and to file petitions in 

individual permit proceedings throughout the United States 

requires resources that may constrain beneficiaries’ ability to

seek judicial review. See Mendelson at 451–52. Preenforcement judicial review of a nationally applicable 

guidance document, in contrast, is more accessible for 

regulatory beneficiaries. Precluding pre-enforcement review 

would impose a burden Congress has not required. 

Notably, irrelevant to the finality inquiry is the fact that the 

Wehrum Memorandum is deregulatory rather than regulatory. 

This is the fallacy underlying the court’s efforts to distinguish 

our precedent on the basis that the Wehrum Memorandum does 

not require anyone to do anything. See Op. 21. Although the 

Supreme Court and this court have regularly been confronted 

with challenges to regulatory actions as too strong or too weak 

and held that agency actions that require parties to take certain 

actions or expose parties to penalties are final, see, e.g.,

Hawkes, 136 S. Ct. at 1814–15; Sackett, 566 U.S. at 126; Nat. 

Mining Ass’n, 758 F.3d at 252; CSI Aviation Servs., Inc. v. 

DOT, 637 F.3d 408, 412–13 (D.C. Cir. 2011), the focus of the 
11 

inquiry has been on whether the legal regime has changed. The 

Wehrum Memorandum changed the legal regime by enabling 

certain regulated entities to become subject to decreased 

regulation — an opportunity not clearly available under the 

CAA, much less under EPA’s prior interpretation. Prior to 

EPA’s issuance of guidance, enforcement officials had 

discretion to interpret the CAA as either allowing or 

prohibiting “major source” reclassification after the first 

compliance date. See NRDC, 643 F.3d at 319–20. Now that 

discretion has been withdrawn as regulated “major sources” are 

eligible to be reclassified at any time upon taking emissions 

limitations. 

Further, the Supreme Court has held that legal 

consequences can flow from the “denial of a safe harbor.” 

Hawkes, 136 S. Ct. at 1814. In Scenic America, Inc. v. DOT, 

836 F.3d 42, 56 (D.C. Cir. 2016), this court recognized that 

legal consequences would flow from a guidance document that 

created a safe harbor whereby digital billboard permits would 

not be denied on the basis of violating certain standards. And

in determining whether a document was a “rule” under the 

Toxic Substance Control Act in General Electric, 290 F.3d at 

384–85, this court held that a guidance document that “appears 

to bind [EPA] to accept applications using a total toxicity factor 

of 4.0 (mg/kg/day)-1” imposed binding obligations, explaining 

that “if the language of the document is such that private parties 

can rely on it as a norm or safe harbor by which to shape their

actions, it can be binding as a practical matter.” Id. at 383 

(quoting Robert A. Anthony, Interpretive Rules, Policy 

Statements, Guidances, Manuals, and the Like—Should 

Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 

1311, 1328–29 (1992)). The Wehrum Memorandum creates a 

safe harbor for “major sources” by removing a prior barrier to 

reclassification — those sources that take an enforceable limit

on their potential to emit below the “major source” threshold 
12 

are assured that they will be subject to decreased regulation 

with EPA’s support. This safe harbor has a “clear legal effect

on regulated entities.” See Scenic America, 836 F.3d at 56.

For these reasons, the Wehrum Memorandum is final 

action, reviewable pursuant to Section 7607(b)(1). It is an 

agency action with the telltale signs of finality — it presents a 

unequivocal interpretation of requirements under the CAA; it 

is binding on its face; and it altered the legal regime by 

providing an opportunity for “major sources” that take 

enforceable limits on their potential to emit below the “major 

source” thresholds to reclassify as “area sources” at any time. 

“Once the agency publicly articulates an unequivocal position 

. . . and expects regulated entities to alter their primary conduct 

to conform to that position, the agency has voluntarily 

relinquished the benefit of postponed judicial review.” CibaGeigy Corp. v. EPA, 801 F.3d 430, 436 (D.C. Cir. 1986). 

II. 

The question remains whether the Wehrum Memorandum 

is an agency action ripe for review. To decide whether an 

agency’s action is ripe for review, courts generally consider the 

“fitness of the issues for judicial decision” and the “hardship to 

the parties of withholding court consideration.” Ohio Forestry, 

523 U.S. at 733 (quoting Abbott Labs. v. Gardner, 387 U.S. 

136, 149 (1967)). In Appalachian Power, 208 F.3d at 1023 

n.18, the court held that a guidance document that reflected 

EPA’s settled position regarding periodic monitoring 

requirements in Title V permits was ripe for review because the

propriety of EPA’s statutory interpretation would “not turn on 

the specifics of any particular permit.” Id. EPA’s guidance 

document was “national in scope and Congress clearly 

intended this court to determine the validity of such EPA 

actions,” see 42 U.S.C. § 7607, yet “[a] challenge to an 
13 

individual permit would not be heard in this court,” 

Appalachian Power, 208 F.3d at 1023 n.18. 

The same is true here. Whether EPA was required, as 

petitioners contend, to promulgate the Wehrum Memorandum 

through notice-and-comment rulemaking and whether EPA’s 

statutory interpretation in the Wehrum Memorandum is proper 

will not turn on the specifics of any particular permit. EPA has 

announced that “a major source that takes an enforceable limit 

on its [potential to emit] . . . no matter when the source may 

choose to take measures to limit its [potential to emit] . . . will 

not be subject thereafter to those requirements applicable to the 

source as a major source under CAA section 112.” Wehrum 

Memorandum at 4 (emphasis added). Its guidance is national 

in scope, as the court looks only to the face of an agency action 

to determine whether the action is nationally applicable. 

Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 881 (D.C. Cir. 

2015); Am. Road & Trans. Builders Ass’n v. EPA, 705 F.3d 

453, 456 (D.C. Cir. 2013). Any objection or denial of a petition 

to object to a Title V permit would apply solely to the specific 

source applying for the Title V permit; inclusion of a general 

statutory interpretation that may apply as precedent in future 

Title V permit proceedings would not render the action 

nationally applicable under 42 U.S.C. § 7607(b)(1). See Sierra 

Club v. EPA, 926 F.3d 844, 849–50 (D.C. Cir. 2019). 

Concluding that petitioners’ challenges are not ripe until the 

Wehrum Memorandum is applied in an individual Title V 

permit proceeding would frustrate Congress’s intent that 

“nationally applicable” actions such as the Wehrum 

Memorandum be reviewable in this court pursuant to 42 U.S.C. 

§ 7607(b)(1). Under the court’s approach, challenges would 

instead be directed to appropriate regional courts. See Op. 16–

17; see e.g., Sierra Club, 926 F.3d at 847–50. 
14 

 In any event, petitioners’ challenges are fit for judicial 

review because they present purely legal issues. See Nat. Envtl. 

Dev., 752 F.3d at 1008; Gen. Elec., 290 F.3d at 380. Whether 

Section 112 of the CAA allows “major sources” to reclassify 

as “area sources” at any time upon taking enforceable limits on

their potential to emit is a question of statutory interpretation 

that will not benefit from further factual development. See 

Ohio Forestry, 523 U.S. at 733. Given EPA’s conclusion that 

the plain text “compels” the interpretation in the Wehrum 

Memorandum, this is not a circumstance in which judicial 

review would hinder EPA’s effort to refine its position. See id. 

at 735. Nor will petitioners’ claims under the APA be affected

by further factual development. See Gen. Elec., 290 F.3d at 

380. In view of Congress’s stated preference for immediate 

review under the CAA, NRDC, 643 F.3d at 320, the court need 

not consider hardship to the parties of delaying review, see 

Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 215 (D.C. 

Cir. 2007); Gen. Elec., 290 F.3d at 381. As noted, the CAA is 

a statute that “permit[s] judicial review directly, even before

the concrete effects normally required for APA review are 

felt.” Whitman, 531 U.S. at 479 (quoting Lujan v. Nat’l 

Wildlife Fed’n, 497 U.S, 871, 891 (1990)). 

III. 

The APA requires that a legislative rule, which carries the 

“force and effect of law,” Ass’n of Flight Attendants-CWA, 

ARL-CIO v. Huerta, 785 F.3d 710, 716 (D.C. Cir. 2015) 

(quoting Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 

1204 (2015)), must be promulgated pursuant to notice-andcomment rulemaking. Id. To determine whether agency action 

carries the force and effect of law, the court generally looks to 

the actual legal effect (or lack thereof) of the agency action,

paying particular attention to the express words used in the 

document. Flight Attendants, 785 F.3d at 717; Nat. Mining, 
15 

758 F.3d at 252. “[A] document that reads like an edict is likely 

to be binding, while one riddled with caveats is not.” Flight 

Attendants, 785 F.3d at 717. The court also considers whether 

the action was published in the Federal Register or the Code of

Federal Regulations, and whether the action has binding effects

on the agency or private parties. Ctr. for Auto Safety v. Nat. 

Highway Traffic Safety Admin., 452 F.3d 798, 806–07 (D.C. 

Cir. 2006) (citing Molycorp, Inc. v. EPA, 197 F.3d 543, 545 

(D.C. Cir. 1999)); see also Flight Attendants, 785 F.3d at 717; 

Nat. Mining, 758 F.3d at 252. An agency’s adoption of a 

binding norm that could not be properly promulgated absent 

the notice-and-comment rulemaking required by the APA 

“obviously would reflect final agency action.” Ctr. for Auto 

Safety, 452 F.3d at 804; see also Flight Attendants, 785 F.3d at 

716. When an agency action is final because it creates a 

binding norm that alters the legal regime, the question of 

whether the action is a legislative rule is “easy.” NRDC, 643 

F.3d at 320. 

That is the situation here. The Wehrum Memorandum 

makes its legal effect clear; it “reads like an edict,” Flight 

Attendants, 785 F.3d at 717, instructing regional offices that 

the “unambiguous language” of Section 112 of the CAA 

“compels” “major source” reclassifications. Wehrum 

Memorandum at 1, 3. The document itself contains no 

disclaimers or caveats. Upon taking an enforceable limit on 

their potential to emit “below major source thresholds,” major 

sources “will not be subject thereafter” to “major source” 

regulations. Id. at 4 (emphasis added). EPA’s Federal Register 

Notice announced the new interpretation and binds EPA to the 

changed legal regime. As such, the Wehrum Memorandum is 

a legislative rule that failed to conform to the APA’s noticeand-comment requirement. Cf. Gen. Elec., 290 F.3d at 385. 
16 

Accordingly, I would grant the petitions for review and 

vacate the Wehrum Memorandum, and I respectfully dissent.