# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 1, 2019 Decided August 20, 2019

No. 18

- 1085

C ALIFORNIA C OMMUNITIES A GAINST T OXICS

, ET AL

.,

P ETITIONERS

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

Consolidated with 18

- 1095, 18

- 1096

On Petition s 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 cause2

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

G eneral.

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 intervenors

respondents 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: R OGERS and W ILKINS

, Circuit Judges , and

S ILBERMAN

, Senior Judge

.

Opinion for the Court filed by Circuit Judge W ILKINS

.

Dissenting Opinion filed by Circuit Judge R OGERS

.

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: I s it final? I s 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 ans wers have eluded courts and

commentators

. See , e.g., Perez v. Mortg

. Bankers Ass’n. , 1353

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 deba te” ); 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 A DMIN L. R EV

. 264, 348 (2018) (“ The

standard view among commentators is that [distinguishing between legislative and nonlegislative rules] is exceptionally perplexing and incoherent.”). Indeed, t he nature of agency action , it seems, is too often in the eye of the beholder. We

resolve t he 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 (“EP A ”) 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 limit s its potential to em it to below the major source

threshold

. J.A. 1. Th e 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

Petitioner s are the State of California and a group of environmental org anizations whose citizens and members, respectively, breathe the air in the vicinity of regulated sources

. EPA is the Respondent, and a group of industry organization s 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, P etitioners argue
, the

Wehrum Memo is a legislative rule, and it is therefore procedurally defective under the A dministrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.

, because EPA failed to provide

notice and comment before issuing it

, s ee 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 , t hey 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 assessin g 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 No rthStar the unique constellati on of statutes and regulations that govern the5

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 a n agency action is

a legislat ive 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, i t is a mistake to assume

– even if they a ppear facially similar

– that they can lend each other definition through comparison

, or that they are decipherable under a

common rubri c

. Rather, to ascertain the nature of an agency action, courts should ground the analysis in the idiosyncratic regime of statut es and regulat ions that govern it

. We have great sympathy for the desire to develop a one

- size

- fits

- all heuristic

. S ee, e.g., Nat’l Min ., 75 8 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 in terpretation 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 air6

resources

. . . . ” Id. § 7401(b)(1). To ward this end, § 112 requires EPA to regulate “Hazardous Air Pollutants

, ” i.e. toxic

e missions such as chloroform

. Id. § 7412. Congress

established an initial list of hazardous air pollutant s, 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 th is list

, the Act

mandates EPA to create a second list of categories of source s of hazardous air pollutants

, i d. § 7412(c)

, like asphalt processing plants and industrial dry

- cleaning facilities

, s ee Revision of Source Category List under Section 112 of the

Clean Air Act , 70 Fed. Reg. 37819

- 01 (June 30, 2005). Importantly, t he Act distinguishes between “major” and “area”

source s

. 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 po llutants ].”

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

– nea r sources of hazardous air pollutants

. F or 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 emission s limitations as “Maximum Achievable Co ntrol Technology ” (“MACT”) standards

. J.A. 1 . The A ct mandates

that MACT standards be “ no less stringent than the emission7

control that is achieved in practice by the best controlled

similar source

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

EPA nee d not set emissions caps at all, save under limited

circumstance s

. See id. § 7412(c)(3). Moreover, where the agency chooses to cap emissions f or 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, e missions caps are of little use if sources do not comply with them. Presumably in recognition of this, Congress

enacte d 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 beco ming subject to a n 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 hea ring 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. R EP

. N O

. 101

- 228, at 171 (1989)).8

regulatory beneficiary believes contravenes the Act? Con gress apparently foresaw this circumstance, too. Indeed, Title V provides a detailed administrative process that dictat es 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 i d. § 7611d.

Th e 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

, wit hin ninety days of a n 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

c onform 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 so urce 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 with in sixty days after it is file d. Id.

Importantly

, for reasons that will become clear

, § 76 6 1d 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 provi s ion

, whic h confers jurisdiction in the9

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)

.

W ith an understanding of the major statut ory provisions and some of the regulations that govern the Wehrum Memo

, we now provide fuller description s of the Wehrum Memo’s predecessor, the Seitz Memo, and the Wehrum Memo itself

. W here 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 pollutant s ] 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 Me mo 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 re mained in effect for nearly twenty

- five years

.

On January 25, 2018, however, EPA announced it w as

revers ing course. That day, William L. Wehrum, Assistant Administrator for EPA’s Office of Air and Radiation, and10

“principal adviser to the Administrator in matters pertaining to air and radiation programs,” 40 C.F.R. § 1.41, issued a four

page memo to the agency’s Regional Air Division Directors ; it

announced that EPA would no longer interpret § 112 in

accordanc e with the Seitz Memo. Indeed, the Wehrum Memo explains, the agency cannot interpret § 112 in accordance with

the Seitz M emo 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 W ehrum 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, t he 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

, ” i d. 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

. I n Flight Attendants

, for example, we framed the finality inquiry as asking whether an action is “non

binding” or a “binding legislative rule,” Flight Attendant s
, 785 F.3d at 716, and we held that the guidance document at issue was nonfinal because it was “not a legislative rule carrying th e11

‘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, interpr etive rule, or general statement of policy

. Nat’l Min.

Ass ’ n , 758 F.3d at 251

- 52. T he 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 un reviewable, 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. A s 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 Benne t t 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 righ ts 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 an alysis focused on whether the

action satisfied the second prong of Benne t t

. Notably, i n 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 inquiry12

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, t he Court

re assured 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, a n affected

party can seek judicial review pursuant to the APA. Id. B ecause only final agency action is reviewable under the APA

, s ee 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.

A s commentators explain, maintaining a n independent finality analysis is not merely a theoretical nicety; it has several salutary effects in practice

. F or example

– as Perez alludes to,

see 135 S. Ct. at 1209

– maintaining a finality analysis that is

distin ct 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. & L IBERTY13

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 challen ge nonlegislative rules via judicial

review

. See Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking

, 92 C ORNELL L. R EV

. 397 , 420

- 24 (2007).

Having clarified the proper test for finality, we now apply

it to the Wehrum Memo

. Cons istent with the interpretive

method we endorse herein , we hew closely to the CAA provision s and EPA regulations appertaining thereto

.

Our first question is whether the Wehrum Memo “mark[s] the consummation of [EPA’s] decisionm a k ing 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

. T hey 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 ca n 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

Mem o 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. T he

Assistant Administrato r for the Office of Air and Radiation

issued it. A s discussed, under EPA regulations, he is the “principal advisor to the Administrator in matters pertaining to

air and radiation

, ” s ee 40 C.F.R. § 1.41 , and, as we have held previously with respect to the A ssistant 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 , 91214

F.2d 1525, 1532 (D.C. Cir. 1990) (internal citation s omitted). Cf. Soundboard Ass ’n. v. FTC , 888 F.3d 1261, 1 2 67

- 69 (D.C. Cir. 2018)

, cert denied 139 S. Ct. 1544 , 2019 WL 1590248 (Apr. 15, 2019) (F ederal Trade Commission (“FTC”) staff opinion letter not consummation of agency’s decisionmaking process because FTC regulations expressly delineate d 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 Benne t t’s first prong

, we ask next whether it has “direct and appreciable legal consequences.” Hawkes

, 136 S. Ct. at 181 4 (quoting Bennett

, 520 U.S. at 178 )

. Petitioners argue that it does because it

creates a new right

– i.e. it allows major source s unable to reclassify to area sources under the Seitz Memo to so reclassify . Cal

. Pet ’r s ’ Br

. 17

- 2 0 . Respondent counters that the Wehrum Memo does not change the rights of regulated

sources

. EPA Br

. 26

- 2 8

. Whether or n ot 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 Lab s. v. Gardner , 387 U.S. 136, 14915

(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. W e take it as counseling lower

courts to make Benne t t prong

- two determinations based on the

concrete consequences an agency action has o r does not have

as a result of the specific statutes and regulations that govern

it. Thus, i n Hawkes

, the Court held , in part, that the agency

determination at issue had direct and appreciable legal consequences because

, under the applicable statutes and

r egulations, i f petitioners failed to heed the determination they

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

. And t he cases Hawkes relies on as past examples of th e

“ pragmatic approach [the Court] has long taken to finality” hold similarly. Id. (citing and quoting Sacke tt v. EPA , 566 U.S.

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

Benne t t prong

- two because, under the relevant statute s and regulations, it appeared to e xpose petitioners to double penalties in a future enforcement proceeding and to limit their ability to obtain a certain type of permit ); Abbot Lab s

. , 387 U.S.

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

and immediate ” impact on p etitioners, such that judicial review was appropriate, because, under the governing statutes and regulations, noncompliance risk ed “serious criminal and civil penalties”); Frozen Food Express v. United States , 351 U.S. 40, 44 (1956) ( same ) )

.

Quite recen tly, in Valero Energy Corporation v. EPA , No.

18

- 1028, 2019 WL 2587837 (D.C. Cir. June 25, 2019), we affirmed this approach. At issue t here, like here, was whether an EPA guidance document that decla red 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 choi ce 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 maj or 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. V iewed 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,

al though 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 an y 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 provision s pursuant to which: (1) a state permitting authority can refuse to apply the Wehrum Memo and seek judicial review if EPA issues a permit o ver its refusal

, id. § 7661d(c); and (2) a regulatory beneficiary can peti tion 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 independent ly authorit ative 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

avenue s by which to challenge a permitting decision adopting the reasoning of the Wehrum Memo and seek judicial review

if EPA fails to sustain thei r 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 appr opriate. 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

Co ngressional 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

Benne t t ’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

, i d. 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 be18

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

or der 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 acknowle dged 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., Stan ding 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 t rue that the

Administrator must issue a revised permit over the state permitting authorit y’s protest if he or she believes that the statute so requires, § 7661d(c) , b ut in such a case, the statute19

explicitly provides the state permitting authority a mechanism by which to seek judicial review of the Administrator’s action.

Id. Regardless of w hether 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 amen dment process reache s 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 proc ess.

***

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 We hrum 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 their20

emission standards and the emission standards EPA ha s 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, cas e

- 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 t hat was more burdensome than the monitoring method set out under existing EPA regulation s

. 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

whet her 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 a pproving a Federal Implement ation 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 ) ).

In deed

, 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 regulation s applied to certain sources located outside of21

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 require d state permitting authorities to take at least two specific actio ns and that EPA did not deny that state permitting authorities used it to coerce regulated sources to adopt a stricter monitoring method. I n 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 woul d 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. T he Wehrum Memo marks the consummation of EPA’s decisionmaking process as to when a22

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

the Wehrum Memo does not have direct and appreciable legal

consequ ences: 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 challenge s , if so desired, will be

heard in this Court.

I II

.

To conclude , w e 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 a n

“ important continuing project

. ” Nat’l Min

. Ass’n , 758 F.3d at

251. Nonetheless, today we humbly su bmit 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 additi on, 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.R OGERS

, Circuit Judge , dissenting: On February 8, 2018, EPA formally announced in the Fede ral 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 potentia l 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 t he 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 theOffice 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 ru le issued without notice and

comment.

I.

Section 7607(b)(1) provides t hat this court shall have jurisdiction to review nationally applicable “final action take n” 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,” and2

(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 ha s 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) (intern al quotations and citations omitted), which is what petitioners contend the Wehrum Memorandum is. So understood, th e statutory scheme not only allows but encourages pre-enforce ment review of final actions

such as the Wehrum Memorandum.

A. The court has repeatedly held that judicial review is available pursuant to Sec tion 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 c onsidered a guidance document instructing that a source’s Titl e V permit must include periodi c 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 cour t 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” pursu ant to Section 7607(b)(1). Id. at 1006–

07.

Similarly, in the context of re view 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 qualifie s 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 i nterpretation 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 enf orcement 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 inte rpretation of S ection 112 that i s 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 t hose requirement s 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 disc laimers about the binding natur e 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 prio r 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 direct s EPA enforcement officials5

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 s tate 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 federa l

standards.” Id . The terms and conditions in permits issued under Title V incorporate the appl icable federal standards for

individual sources. Id. Reinforcing that States must act in conformity with the Wehrum Memorandum, the CAA prohibits the Administrator o f EPA from approving a state implementation plan under Title V except “to the extent that the program meets the requireme nts of [the CAA].” 42 U.S.C. § 7661a(d)(1). If a State proposes to issue an individual perm it 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 include s 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, EPA6

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.; Gh arrity Decl. Att. (Ohio EPA publication providing guidance to r egulated entities treating t he 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 actio n subject to judicial review pursuant to Section 7607(b)(1 ) because it provides EPA’s unequivocal interpretation on th e 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 res pect 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 majo r 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 instruct s the Regional offices on what Section 112 of the CAA “compels,” and to “send this memorandum to states within their jurisdiction.” Id. at 4. By7

Federal Register Notice, EPA announced to the public it had abandoned its prior interpretati on and now concluded the plain text of Section 112 imposed no temporal limit on reclassifications by “major s ources.” 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 em it . . . below major source thresholds.” Wehrum Memorandum at 1. Those sources now have the opportunity to reclassify as are a sources at any time by limiting their potential to emit below major source thresholds and thereafter will not be subject to t he 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 428

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 identif iable 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 limi ts 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 ‘t he 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 cla use 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 “ma jor 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 latertime has no direct bearing on the availability of preenforcement review of the Wehrum Memorandum. Section 7661d provides for judicial review under Section 7607 of an9

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 revie w serve different purposes.

Judicial review of national st andards at the start of the regulatory process can ensure th at 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, o r legislative history of the CAA indicates the availability of review of a decision in a source-specific Title V proceeding under Section 7661d would precl ude 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 inte nded 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 E NVTL . L. 1721, 1723, 1742 (1991). Put otherwise, the provision of judicial review of Title V perm it 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 Na tion’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 opportuni ty for regulatory beneficiarie s to obtain judicial review of an agency’s position. See Nina A. Mendelson, Regulatory Beneficiarie s and Informal Agency Policymaking , 92 C ORNELL L. R EV

. 397, 420–24 (2007) (“Mendelson”). Title V does provi de regulatory beneficiaries the opportunity to file a petition to object and to seek judici al review of denial of a petition to object in individual permitti ng proceedings. 42 U.S.C. § 7661d(b)(2). Yet requiring regulatory beneficiar ies 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. Precl uding pre-enforcement review would impose a burden Congress has not required.

Notably, irrelevant to the finality inquiry is the fact that th e Wehrum Memorandum is deregulatory rather than regulatory. This is the fallacy underlying th e court’s efforts to distingui sh 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 ha ve regularly been confronted with challenges to regulatory ac tions as too str ong or too weak and held that agency actions tha t require parties to take certa in 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 the11

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 f rom 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 fac tor of 4.0 (mg/kg/day) -1 ” imposed binding oblig ations, explaining that “if the language of the document is such that private part ies 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 D UKE 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” threshold12

are assured that they will be subject to decreased regulation with EPA’s support. This safe har bor 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 r equirements 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 artic ulates an unequivocal position . . . and expects regulated entities to alter their primary con duct 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 whethe r the Wehrum Memorandum is an agency action ripe for review. To decide whether an agency’s action is ripe for review, courts generally consider t he “fitness of the issues for judici al 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 guida nce document that reflected EPA’s settled position rega rding periodic monitoring requirements in Title V permits was ripe for review because the propriety of EPA’s statutory in terpretation 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 an13

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 h as 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). I ts guidance is national in scope, as the court looks only to the face of an agency acti on 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 petiti on to object to a Title V permit would apply solely to the specifi c 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 frustr ate 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 interpretati on 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 effo rt 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 not ed, the CAA is a statute that “permit[s] judicial review directly, even before the concrete effects normally r equired 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 legisla tive 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 promulgatedpursuant 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 lik ely 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 whethe r 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 m ajor 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 interp retation and binds EPA to the changed legal regime. As such, the Wehrum Memorandum isa 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.