United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2012 Decided November 9, 2012 

No. 11-1184 

SIERRA CLUB, 

PETITIONER

v. 

ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ 

JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL 

PROTECTION AGENCY, 

RESPONDENTS

AMERICAN CHEMISTRY COUNCIL, ET AL., 

INTERVENORS

On Petition for Review of Final Action of the United States 

Environmental Protection Agency 

James S. Pew filed the briefs and argued the cause for 

petitioner. 

Madeline Fleischer, Attorney, U.S. Department of 

Justice, argued the cause for respondents. With her on the 

brief were Norman L. Rave Jr., Attorney, and Michael Thrift, 

Attorney, U.S. Environmental Protection Agency. 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 1 of 17
2

Lisa M. Jaeger, Jeffrey A. Knight, David M. Friedland, 

and Leslie A. Hulse were on the brief for intervenors 

American Chemistry Council, et al., in support of 

respondents. 

Before: HENDERSON and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

Opinion concurring in the judgment filed by Circuit 

Judge HENDERSON. 

WILLIAMS, Senior Circuit Judge: Sierra Club here 

challenges a “Determination” of the Environmental Protection 

Agency. In the Determination, EPA announced that it had 

met the regulatory obligations imposed on it by § 112(c)(6) of 

the Clean Air Act (“CAA”), 42 U.S.C. § 7412(c)(6). We 

conclude that the Determination is a legislative rulemaking 

subject to the notice-and-comment provisions of the 

Administrative Procedure Act, 5 U.S.C. § 553. Because EPA 

issued the Determination without providing notice and 

opportunity for comment, we vacate and remand for the 

agency to follow those procedures. 

* * * 

In 1990 Congress amended the CAA to assign EPA the 

following duty: 

With respect to [seven specified hazardous air 

pollutants (“HAPs”)], the Administrator shall, not 

later than five years after November 15, 1990, list 

categories and subcategories of sources assuring 

that sources accounting for not less than 90 per 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 2 of 17
3

centum of the aggregate emissions of each such 

pollutant are subject to standards under subsection 

(d)(2) or (d)(4) of this section. Such standards 

shall be promulgated not later than 10 years after 

November 15, 1990. 

42 U.S.C. § 7412(c)(6). The obligation thus comprises both 

listing sources (due by November 15, 1995) and promulgating 

standards (due by November 15, 2000). 

In 1998 EPA published its conclusion that it had satisfied 

its duty to list sources, a conclusion Sierra Club immediately 

challenged. But the CAA specifically precluded review of the 

agency’s source-listing under § 112(c)(6) until the agency had 

issued emissions standards thereunder, 42 U.S.C. 

§ 7412(e)(4), so we dismissed the challenge, without 

prejudice to the Sierra Club’s seeking review once EPA issued 

standards. Sierra Club v. EPA, No. 98-1270, 1998 WL 

849408 (D.C. Cir. Nov. 24, 1998). 

EPA’s listing of sources and promulgation of standards 

continued after its 1998 rulemaking, and well after the 

statutory deadline. As to sources, it made successive 

adjustments in the 1998 list by adding new sources and 

delisting old ones. See, e.g., 76 Fed. Reg. 9450/1 (Feb. 17, 

2011) (adding gold mine source category); 73 Fed. Reg. 

1916/1 (Jan. 10, 2008) (finalizing decision not to regulate 

gasoline distribution area sources); 72 Fed. Reg. 53,814/1 

(Sept. 20, 2007) (listing electric arc furnace steelmaking 

facilities as an area source); 67 Fed. Reg. 68,124/1 (Nov. 8, 

2002) (delisting asphalt hot-mix production, fabricated metal 

products, paint and allied products, paper coated and 

laminated, packaging and transportation equipment 

manufacturing, and open burning of scrap tires as area source 

categories). 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 3 of 17
4

As to emissions standards, it continued to set such 

standards for a variety of sources, sometimes in an express 

effort to satisfy its § 112(c)(6) obligations, see, e.g., 76 Fed. 

Reg. 15,554/1, 15,556 (Mar. 21, 2011) (setting emissions 

standards for 112(c)(6) chemicals emitted by industrial, 

commercial, and institutional boilers), sometimes with no 

reference to § 112(c)(6), see, e.g., 62 Fed. Reg. 52384/1 (Oct. 

7, 1997) (setting emissions standards for Primary Aluminum 

Reduction Plants, with specific reference to chemicals listed 

in § 112(b), but not § 112(c)(6)). 

Despite its activities in this area, EPA failed to meet the 

statutory deadline of November 15, 2000. In 2001 Sierra 

Club filed suit in district court to compel timely compliance. 

Sierra Club v. Whitman, No. 01-1558, (D.D.C. filed July 18, 

2001). EPA responded with an argument that such a suit was 

an inappropriate remedy for any omissions in its fulfillment of 

its § 112(c)(6) duties. Rather, it pointed to the declaration it 

had filed with the court saying that it intended, once it 

completed emissions standards for remaining source 

categories, to “issue a notice that explains how it has satisfied 

the requirements of [§] 112(c)(6) in terms of issuing standards 

for source categories that account for the statutory thresholds 

identified in [§] 112(c)(6).” It assured the court that that 

action, like any other final agency action, would be subject to 

review in this court. 

The district court accepted EPA’s view, and set a 

remedial deadline for EPA to complete its obligations under 

§ 112(c)(6), but refused to identify the legal standards 

required by that section, finding instead that the D.C. Circuit 

was “the exclusive forum for substantive review of EPA 

regulations promulgated under [§] 112 of the Clean Air Act.” 

Sierra Club v. Johnson, 444 F. Supp. 2d 46, 60 (D.D.C. 

2006). On EPA’s motion, the district court extended the 

deadlines announced in Johnson “a number” of times, and 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 4 of 17
5

ultimately ordered EPA to comply with its statutory deadline 

by February 21, 2011. Sierra Club v. Jackson, No. 01-1537, 

2011 WL 181097 at *1, *14 (D.D.C. January 20, 2011). 

EPA honored that court deadline in March 2011 by 

issuing the Determination challenged here. The 

Determination declared that the agency “has completed 

sufficient standards to meet the 90 percent requirement” under 

§ 112(c)(6). 76 Fed. Reg. 15308/1 (Mar. 21, 2011). The 

Determination also referred to an accompanying 

memorandum that “document[s] the actions the Agency has 

taken to meet these requirements.” 

Sierra Club petitions for review of EPA’s Determination. 

It claims that EPA’s announcement that it has satisfied its 

obligations under the statute is unreasonable, arbitrary, 

capricious, and otherwise unlawful. Sierra Club also argues 

that the Determination is a legislative rulemaking subject to 

the notice-and-comment requirements set forth in § 553 of the 

APA, and invalid for failure to comply with those 

requirements. 

EPA naturally resists Sierra Club’s arguments on the 

merits, but also argues that we lack jurisdiction to resolve this 

matter for two alternative reasons. First, it claims a want of 

standing. Second, it argues that Sierra Club’s challenges are 

untimely under § 307 of the CAA, 42 U.S.C. § 7607, since the 

suit lags some of the regulations referenced in the 

Determination by more than the 60 days allowed by § 307—

lags those regulations, in fact, by many years. There is, 

besides, another threshold issue—the question whether the 

Determination was a “final” agency action. 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 5 of 17
6

* * * 

Standing. EPA attacks Sierra Club’s standing with the 

argument that “[a]lthough Sierra Club asserts that its members 

are harmed by emissions of [§] 112(c)(6) HAPs from certain 

source categories, . . . it provides no evidence that the 

emission standards it discusses in its brief fail to effectively 

control the [§] 112(c)(6) HAPs.” Respondent’s Br. at 23. 

Accordingly, it says, Sierra Club cannot show, as it must, that 

it is “likely, as opposed to merely speculative, that the injury 

will be redressed by a favorable decision.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal 

quotation marks omitted). EPA seems to suggest that Sierra 

Club’s complaint relates solely to whether the standard-setting 

rules at issue explicitly mention § 112(c)(6), saying that 

petitioner has offered no “basis to believe that, if EPA were 

forced to revisit those emission standards and set numeric 

limitations specifically naming the [§] 112(c)(6) HAPs, the 

resulting level of control would be any more stringent . . . .” 

Respondent’s Br. at 23-24. 

This argument misconceives the nature of Sierra Club’s 

complaint. Sierra Club argues that despite EPA’s statutory 

obligations, it has yet to set emission standards for two types 

of § 112(c)(6) HAPs, and has set standards for another type of 

HAPs “for sources that account for far less than ninety percent 

of aggregate emissions” of that type. Petitioner’s Br. at 27. 

The Club seeks a vacatur of the Determination so that, before 

any such determination becomes final, it can make its case 

directly to EPA as to why the agency’s conclusion that it has 

met the court-ordered deadline for all three types of HAPs is 

erroneous and, relatedly, why the statute compelled EPA to 

regulate the HAPs to which Club members are exposed more 

stringently than the agency has already purported to do. If 

correct on the merits, as we must assume for standing 

purposes, such a challenge presents a clearly redressable 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 6 of 17
7

injury: some Sierra Club members unquestionably live within 

zones they claim are exposed to § 112(c)(6) HAPs, and our 

vacatur will require EPA, consistent with the district court’s 

deadline order, to entertain and respond to the Club’s claims 

about the necessary scope and stringency of the standards. 

Having shown its members’ redressable concrete interest, 

Sierra Club can assert violation of the APA’s notice-andcomment requirements, as those procedures are plainly 

designed to protect the sort of interest alleged. As to such 

requirements, Sierra Club enjoys some slack in showing a 

causal relation between its members’ injury and the legal 

violation claimed. Its position is similar to that of a party 

“living adjacent to the site for proposed construction of a 

federally licensed dam . . . [who] challenge[s] the licensing 

agency’s failure to prepare an environmental impact 

statement, even though he cannot establish with any certainty 

that the statement will cause the license to be withheld or 

altered.” Lujan, 504 U.S. at 572 n.7. Moreover, as to sources 

for which EPA set standards for § 112(c)(6) HAPs without 

purporting to do so, Sierra Club’s claim that the standards did 

not necessarily comply with § 112(c)(6)—the merits of which, 

again, we must assume—is potentially redressable by 

compelling EPA to align the standards set with § 112(c)(6)’s 

mandate. 

Timeliness. EPA does not deny that Sierra Club filed its 

present petition within 60 days of the issuance of the 

Determination. Rather, it says that Sierra Club is using the 

present suit as a back door for attacking long past 

rulemakings. But Sierra Club’s contention here is that EPA’s 

previous rulemakings do not satisfy the agency’s obligations 

under § 112(c)(6) in part because some of these previous 

regulations did not, on their face, purport to carry out that 

paragraph’s demands. Sierra Club claims that, with the 

Determination, EPA is unlawfully shoehorning previous 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 7 of 17
8

rulemakings into the service of its argument that it had 

completed its obligations under § 112(c)(6). If Sierra Club is 

correct—a question on which we express no opinion—the 

agency action Sierra Club challenges is only the 

Determination, which (in its view) repurposed previous 

rulemakings to satisfy EPA’s § 112(c)(6) obligations. Sierra 

Club’s challenge is not only timely but could not be brought at 

all until after EPA identified the rules that it believed satisfied 

its responsibilities under § 112(c)(6). 

Finality. Neither party disputes that the Determination in 

question is a final decision for purposes of the APA. We have 

held, however, that § 307’s provision for review of “final 

action” by the agency imposes a jurisdictional requirement. 

Nat’l Env’l Dev. Ass’n’s Clean Air Proj. v. EPA, 686 F.3d 

803, 808 (D.C. Cir. 2012). Cf. Kontrick v. Ryan, 540 U.S. 

443, 455 (2004) (distinguishing between “claims processing 

rules” and jurisdictional barriers). In any event, the 

Determination easily satisfies the familiar two-part inquiry 

into an agency decision’s finality: 

First, the action under review “must mark the 

consummation of the agency’s decisionmaking 

process—it must not be of a merely tentative or 

interlocutory nature.” Bennett v. Spear, 520 U.S. 

154, 177-78 (1997). Second, the action must “be 

one by which rights or obligations have been 

determined, or from which legal consequences 

will flow.” Id. at 178. 

Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. 

Cir. 2005) (some internal citations and quotation marks 

omitted). 

The first requirement is satisfied with unusual clarity, as 

the whole purpose of the Determination is to ring down the 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 8 of 17
9

curtain on EPA’s § 112(c)(6) activities. See 76 Fed. Reg. 

15,308/1. Nor can there be a question that “legal 

consequences will flow” from the Determination. EPA has 

declared, for the first time, that it has fully accomplished the 

listing of sources and promulgation of standards required by 

§ 112(c)(6). Most obviously as to sources, but also quite 

clearly as to standards never before pegged to § 112(c)(6), 

EPA purports to close off any legal claim that it has fallen 

short of compliance with § 112(c)(6). 

Indeed, in the deadline suit before the district court, EPA 

based its successful response on the premise that this very 

Determination would both issue and be a final agency action 

reviewable in this Court. See supra 4-5. 

* * * 

 Finding that we have jurisdiction, we turn to the question 

whether the Determination constitutes a legislative 

rulemaking that cannot be issued without first being subject to 

notice and comment under § 553 of the APA. We agree with 

Sierra Club that it does. Because this conclusion forces a 

remand under which the parties can develop a record that will 

render EPA’s legal and technical decisions more transparent 

and thereby facilitate substantive review (and perhaps moot 

some or all of the parties’ dispute), we do not reach Sierra 

Club’s arguments on the substance of the Determination or 

express the slightest opinion as to their merit. 

 We have generally termed the category of rules subject 

to notice-and-comment requirements as “legislative rules.” 

U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 34 (D.C. Cir. 2005). 

As will often be the case where an agency action is clearly 

final, the question whether the Determination “is a legislative 

rule that required notice and comment[] is easy.” Natural 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 9 of 17
10

Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011). 

The Determination having declared the end not only of its 

multi-decade effort of listing and delisting sources subject to 

regulation under § 112(c)(6), but also of any further duty to 

issue § 112(c)(6) standards, it clearly purports to bar further 

demands for additional source-listing or standard-setting. 

(This closure effect is subject, perhaps, to petitions for 

modification based, for example, on claims of changed 

circumstances. See, e.g., RSR Corp. v. EPA, 102 F.3d 1266, 

1267 (D.C. Cir. 1997) (discussing the rule first announced in 

Geller v. FCC, 610 F.2d 973 (D.C. Cir. 1979), which provided 

an exception to the timeliness rule in cases of “changed 

circumstances giving rise to a new cause of action beyond the 

statutory period for review”) (internal citation omitted).) 

EPA cites Independent Equipment Dealers Association v. 

EPA, 372 F.3d 420 (D.C. Cir. 2004), to support its argument 

that the Determination is not a legislative rule. Far from it. In 

deciding that the agency communication at issue was not a 

legislative rule, we emphasized that it “tread no new ground 

[and] left the world just as it found it.” Id. at 428 (then-Judge 

Roberts). The Determination here does precisely what the 

agency action in Independent Equipment Dealers did not. It 

tread new ground by taking previous rulemakings—which 

EPA had promulgated without any evident goal of satisfying 

its § 112(c)(6) obligations—and repurposing them to satisfy 

§ 112(c)(6). Because the Determination manifests a new yet 

final agency position on its compliance with § 112(c)(6), it is 

a legislative rulemaking subject to § 553’s notice-andcomment requirements. 

We repeat, of course, that nothing we say should be taken 

as ruling on Sierra Club’s substantive claims. 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 10 of 17
11

* * * 

We vacate the Determination and remand to EPA to 

fulfill the notice-and-comment requirements of § 553 of the 

APA. 

So ordered. 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 11 of 17
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in 

the judgment:

Although I join in the judgment vacating EPA’s 

“Determination,” 76 Fed. Reg. 15,308 (Mar. 21, 2011), I write 

separately because I believe that Article III standing is far 

from certain. 

“Article III of the Constitution limits the judicial power 

of the United States to the resolution of ‘Cases’ and 

‘Controversies.’ ” Hein v. Freedom from Religion Found., 

Inc., 551 U.S. 587, 597 (2007). By limiting the jurisdiction of

federal courts to the consideration of cases and controversies, 

the standing doctrine ensures that the judiciary does not spill

the banks of its Article III authority. Allen v. Wright, 468 U.S. 

737, 750–51 (1984); Pub. Citizen, Inc. v. Nat’l Highway 

Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007). 

Because the doctrine implicates this fundamental caution

about the judiciary’s constitutional role, we address standing 

with considerable care. See Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 94 (1998). 

A party seeking to invoke the power of an Article III

court must establish the “irreducible constitutional minim[a] 

of standing,” to wit, injury in fact, causation and 

redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560 (1992). I agree with my colleagues that Sierra Club

establishes an injury in fact which, assuming its success on 

the merits, is caused by EPA’s failure to engage in the noticeand-comment procedures required by the Administrative 

Procedure Act (APA), 5 U.S.C. § 553. I suspect, however, 

that today’s decision will most likely provide no relief for that 

injury. 

 

Section 112(c)(6) of the Clean Air Act (Act) requires 

EPA to assure that “not less than 90 per centum of the 

aggregate emissions of each such pollutant are subject to 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 12 of 17
2

standards under subsection (d)(2) or (d)(4).” 42 U.S.C. §

7412(c)(6). That is all it requires. EPA is under no 

obligation, statutory or otherwise, to inform anyone that it has 

satisfied the requirements of section 112(c)(6). The issuance 

of the Determination was purely voluntary, amounting to little 

more than a public service message.1 

 

Given that EPA was not required to issue the 

Determination, I am doubtful our decision will redress Sierra 

Club’s injury. My colleagues correctly note that a party 

alleging a procedural injury is not required to show that the 

agency’s decision would have been different had it adhered to

the APA. Cnty. of Delaware, Pa. v. Dep’t of Transp., 554 

F.3d 143, 147 (D.C. Cir. 2009) (“[A] litigant ‘who alleges a 

deprivation of a procedural protection to which he is entitled 

never has to prove that if he had received the procedure the 

substantive result would have been altered. All that is 

necessary to show is that the procedural step was connected to 

the substantive result.’ ” (quoting Sugar Cane Growers Coop. 

of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002)).

Even so, I cannot escape the conclusion that redress is most 

likely “merely speculative” as opposed to “likely.” Lujan, 504

 1 This conclusion also implicates another jurisdictional 

concern, viz., whether the Determination was “final action” within 

the meaning of section 307 of the Act. See Nat’l Envtl. Dev. 

Ass’n’s Clean Air Project v. EPA, 686 F.3d 803, 808 (D.C. Cir. 

2012). Because it is uncertain that the Determination accomplishes 

anything, it is also unclear that it is “one by which rights or 

obligations have been determined or from which legal 

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 

(1997) (quotation marks omitted). Nevertheless, I accept what I 

believe to be my colleagues’ conclusion that the Determination has 

altered the legal landscape by “taking previous rulemakings . . . 

and repurposing them to satisfy § 112(c)(6).” Maj. Op. 10. 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 13 of 17
3

U.S. at 561 (quotation marks omitted). Because EPA’s 

compliance with section 112(c)(6) does not rest on the 

issuance of the Determination, it is likely that, on remand,

EPA will simply abandon the Determination rather than 

undertake the expensive and cumbersome notice-andcomment procedures imposed by section 553 of the APA. 

The upshot would be that EPA will continue to decline to 

issue regulations and Sierra Club’s alleged injury will remain 

unredressed.

2

 2 In its abbreviated standing discussion, my colleagues 

appear to conflate the two distinct standing prongs of injury in fact 

and redressability by stating without explaining that Sierra Club 

suffers a “clearly redressable injury[] given that some Sierra Club 

members live within zones they claim are exposed to § 112(c)(6) 

HAPs.” Maj. Op. 6. Exposure to section 112(c)(6) HAPs plainly 

constitutes an injury in fact. See, e.g., Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). And

such injury is obviously redressable by an order to promulgate 

regulations. But that is not what our vacatur order accomplishes. 

Our instruction to EPA is merely that, before it promulgates a 

notice of this kind, it must do so pursuant to the APA’s notice-andcomment procedures. EPA may simply choose to withdraw the 

notice altogether and rest on its internal conclusion that it has 

satisfied section 112(c)(6), forcing Sierra Club to seek some other 

form of redress.

Similarly, the dicta hypothetical discussed in the Lujan

footnote on which my colleagues rely is distinguishable. See Maj. 

Op. 5–6 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 

n.7 (1992)). They compare Sierra Club’s alleged procedural 

deprivation to a hypothetical agency’s failure to prepare an 

environmental impact statement before construction of a federally 

licensed dam. An adjacent landowner could challenge the agency’s 

failure without showing that his input into the statement’s 

preparation would result in the denial of the license. Lujan, 504 

U.S. at 572 n.7. But as Justice Scalia noted, the environmental 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 14 of 17
4

My colleagues believe that the “deadline suit” in the 

district court, apparently still pending, obviates my concern. 

In a footnote included in its district court brief in that case,

EPA stated its intention to issue a notice explaining that it had

satisfied its section 112(c)(6) obligations. Maj. Op. 4 (quoting 

Def.’s Mem. in Supp. of Cross-Mot. for Summ. J. on Remedy 

19 n.16, Sierra Club v. Johnson, No. 01-1537 (D.D.C. Jun. 

13, 2005)). The district court ordered EPA to comply with 

the requirements of section 112(c)(6) but declined either to

instruct EPA on how to comply or to review the substance of 

any regulations relied upon by EPA to satisfy section 

112(c)(6), concluding that both actions were beyond its 

jurisdiction. Sierra Club v. Johnson, 444 F. Supp. 2d 46, 59–

60 (D.D.C. 2006).3

 The district court did not instruct EPA to 

 

impact statement is a procedural requirement. Id. at 572. Thus, in 

order to proceed with licensure and construction, the agency must

allow the landowner to make known his concerns. But here, 

because the Determination is not required by statute, EPA may give 

up the Determination entirely and at the same time cease 

promulgating section 112(c)(6) regulations. The distinction is thus 

that the hypothetical agency in Lujan may not accomplish its 

goal—licensure or construction—without at least knowing the 

injured party’s concerns. By abandoning the Determination, EPA 

may accomplish its goal—no promulgation of additional 

regulations pursuant to section 112(c)(6)—without regard to Sierra 

Club’s concerns. 

3 My colleagues make much of the fact that EPA assured 

Sierra Club and the district court that it intended to issue the 

Determination, which would be reviewable in this Court. Maj. Op. 

4. This seems of little consequence to me. First, the district court 

did not rely on EPA’s assurance to reach its ultimate conclusion 

that it could not review the standards on which EPA relied to satisfy 

section 112(c)(6) because it lacked jurisdiction. Johnson, 444 F. 

Supp. 2d at 59–60. Second, EPA cannot stipulate to the finality of 

the Determination because finality implicates our jurisdiction, 

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 15 of 17
5

issue the Determination but merely to “assure that sources 

accounting for ninety percent of the aggregate emissions of 

certain persistent and bioaccumulative hazardous air 

pollutants are subject to emission standards with respect to 

such pollutants.” Order at 2, Sierra Club v. Johnson, No. 01-

1537 (D.D.C. Mar. 31, 2006). 

My colleagues conclude that “our vacatur order will 

require EPA, consistent with the District Court’s deadline 

order, to entertain and respond to the Club’s claims about the 

necessary scope and stringency of the standards.” Maj. Op. 6–

7. I am unconvinced. If EPA declines to issue the 

Determination, Sierra Club will presumably return to district 

court to enforce the deadline order, as it has done before. See 

Mot. to Enforce Order of Jan. 20, 2011, Sierra Club v. 

Jackson, No. 01-1537 (D.D.C. Aug. 3, 2011). EPA will 

presumably defend against enforcement with the Technical 

Memorandum (prepared in order to support the 

Determination) showing how it has satisfied the district 

court’s order. See Maj. Op. 5. If the district court is correct 

about its jurisdiction under the Act, it cannot review the 

standards on which EPA relies. See Johnson, 444 F. Supp. at 

59–60. Nor can we, because judicial review of the standards 

that Sierra Club previously failed to challenge would violate 

the sixty-day deadline imposed by section 307(b)(1) of the 

Act. 42 U.S.C. § 7607(b)(1). The proper recourse for Sierra 

Club will then be to petition for reconsideration of those 

standards or for a new rulemaking. See Oljato Chapter of 

Navajo Tribe v. Train, 515 F.2d 654, 666 (D.C. Cir. 1975); 

 

which my colleagues acknowledge we must resolve ourselves. See 

Maj. Op. 8; see also Bender v. Williamsport Area Sch. Dist., 475 

U.S. 534, 541 (1986) (“[E]very federal appellate court has a special 

obligation to ‘satisfy itself . . . of its own jurisdiction . . .’ even 

though the parties are prepared to concede it.” (quoting Mitchell v. 

Maurer, 293 U.S. 237, 244 (1934)).

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 16 of 17
6

see also RSR Corp. v. EPA, 102 F.3d 1266, 1270 (D.C. Cir. 

1997). If, after consideration of Sierra Club’s comments,

EPA denies the petition, we may review the denial and—if 

persuaded—grant Sierra Club the relief it seeks. Although the 

administrative petition process—like my colleagues’ hopedfor result arising from remand—will enable Sierra Club to 

make known its concerns to EPA, I doubt that EPA will

permit Sierra Club to short circuit that process by reissuing 

the Determination after notice and comment. Remand is thus 

unlikely to provide Sierra Club redress.

The possibility that an agency will abandon a rulemaking 

after we vacate and remand a procedurally deficient rule

exists, of course, whenever we impose this remedy. See, e.g., 

Chamber of Commerce of U.S. v. U.S. Dep’t of Labor, 174 

F.3d 206 (D.C. Cir. 1999) (vacating OSHA rule for lack of 

notice-and-comment, which rule OSHA subsequently 

abandoned); Orly Lobel, Interlocking Regulatory and 

Industrial Relations: The Governance of Workplace Safety, 57 

ADMIN. L. REV. 1071, 1124 (2005) (describing OSHA’s 

abandonment of rule after vacatur); see also Natural Res. Def. 

Council v. EPA, 489 F.3d 1250, 1265 (D.C. Cir. 2007) (noting 

that agency may “abandon its initial rule” after vacatur);

Kristina Daugirdas, Note, Evaluating Remand Without 

Vacatur: A New Judicial Remedy for Defective Agency 

Rulemakings, 80 N.Y.U. L. REV. 278, 279 (2005). Because 

vacating the Determination leaves unstated but intact EPA’s 

underlying conclusion that it has satisfied section 112(c)(6), I

expect that abandonment will occur here. We have never, 

however, required a petitioner challenging agency action to 

show that the agency will not abandon the rulemaking after 

vacatur and remand—nor could we—and I would not seek to 

impose that requirement here. Accordingly, I concur in the 

judgment of the Court.

USCA Case #11-1184 Document #1404139 Filed: 11/09/2012 Page 17 of 17