United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2018 Decided April 26, 2019

No. 17-1201

ENVIRONMENTAL DEFENSE FUND,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND ANDREW 

WHEELER, ADMINISTRATOR, UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

AMERICAN CHEMISTRY COUNCIL, ET AL.,

INTERVENORS

On Petition for Review of Final Action of the

United States Environmental Protection Agency

Robert P. Stockman argued the cause and filed the briefs 

for petitioner.

Phillip R. Dupré, Attorney, United States Department of 

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

brief was Jeffrey H. Wood, then-Acting Assistant Attorney 

General.

Donald P. Gallo, James W. Conrad, Jr., Richard S. 

Moskowitz, Peter D. Keisler, Samuel B. Boxerman, Timothy K. 
2

Webster, C. Frederick Beckner, III, Judah Prero, Samina M. 

Bharmal, David B. Weinberg, Martha E. Marrapese, Roger H. 

Miksad, Linda E. Kelly, Steven P. Lehotsky, and Michael B. 

Schon were on the brief for intervenors in support of 

respondent United States Environmental Protection Agency. 

Michael D. Boucher and Warren U. Lehrenbaum entered 

appearances.

Before: GARLAND, Chief Judge, MILLETT, Circuit Judge, 

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT. 

MILLETT, Circuit Judge: The Toxic Substances Control 

Act, 15 U.S.C. § 2601 et seq., requires the Environmental 

Protection Agency to publish an inventory of chemicals 

manufactured or processed in the United States. 

15 U.S.C. § 2607(b)(1). The 2016 Amendments to the Act 

directed the EPA to issue a rule establishing a process for 

updating the Inventory. The EPA promulgated that rule the 

following year. See TSCA Inventory Notification (ActiveInactive) Requirements, 82 Fed. Reg. 37,520 (Aug. 11, 2017). 

As part of that rulemaking process, the EPA abandoned

questions that had required each company seeking to keep the 

chemical identity of a substance confidential to substantiate 

that the chemical identity “is not readily discoverable through 

reverse engineering.” 15 U.S.C. § 2613(c)(1)(B)(iv).

The Environmental Defense Fund challenges that 2017 

rule on the ground that it unlawfully shields information from 

public disclosure. Environmental Defense is correct that the 

EPA’s elimination of questions pertaining to reverse

engineering was arbitrary and capricious, and so we grant the 

petition in that respect. We otherwise deny the petition for 

review.
3

I

A

Congress passed the Toxic Substances Control Act 

(“Control Act”) in 1976 to “assure that * * * innovation and 

commerce in * * * chemical substances and mixtures do not 

present an unreasonable risk of injury to health or the 

environment.” 15 U.S.C. § 2601(b)(3). Congress charged 

the EPA with administering the Control Act, which included 

the tasks of “compil[ing], keep[ing] current, and publish[ing] a 

list of each chemical substance which is manufactured or 

processed in the United States.” Id. § 2607(b)(1). That list, 

commonly referred to as the “Inventory,” contains a 

confidential portion and a non-confidential portion. Id. 

§ 2607(b)(4)(B)(i). Both portions are publicly accessible on 

the EPA’s website. But the confidential portion identifies 

substances by “a structurally descriptive generic name” rather 

than a “specific chemical identity.” 15 U.S.C. 

§ 2613(c)(1)(C).

1

 The Inventory currently lists approximately 

86,000 chemicals, roughly 18,000 of which are classified as 

confidential. 

“[C]oncern[ed] about the pace of EPA’s work” keeping 

the Inventory up to date, H.R. REP. NO. 176, 114th Cong., 1st 

Sess. 12 (2015), Congress amended the Control Act in 2016. 

See Frank R. Lautenberg Chemical Safety for the 21st Century 

Act, Pub. L. No. 114–182, 130 Stat. 448 (2016) (codified at 15 

U.S.C. § 2601 et seq.). As relevant here, the 2016 

 1 See How to Access the TSCA Inventory, EPA,

https://www.epa.gov/tsca-inventory/how-access-tsca-inventory

#download (last visited April 17, 2019).
4

amendments directed the EPA to promulgate a rule—known as 

the Inventory Rule—that would impose new reporting 

requirements for chemical manufacturers and processors

(“chemical companies”). See 15 U.S.C. § 2607(b)(4)–(5). 

Specifically, the Inventory Rule requires chemical companies 

to notify the EPA of each chemical on the Inventory that they 

had “manufactured or processed for a nonexempt commercial 

purpose” during the ten-year period prior to June 22, 2016. Id. 

§ 2607(b)(4)(A)(i). Each chemical for which the EPA 

receives such a notification would be labeled “active,” while 

all the rest would be labeled “inactive.” Id. 

§ 2607(b)(4)(A)(ii)–(iii), (b)(5)(B)(i)–(iii). Chemical 

companies also have to submit a notification form identifying 

in advance any inactive chemical substance for which they 

intend to resume manufacturing or processing going forward. 

Id. § 2607(b)(5)(B)(i).

Congress directed the EPA to update the confidential 

portion of the Inventory as well. In particular, the 2016 

amendments to the Control Act instruct the EPA to (i) “require 

any manufacturer or processor of a chemical substance on the 

confidential portion of the [Inventory] that seeks to maintain an 

existing claim for protection against disclosure of the specific 

chemical identity of the chemical substance as confidential” to 

notify the EPA of that request; (ii) demand that chemical 

companies provide “substantiation” for those claims of 

confidentiality; and (iii) “move any active chemical substance 

for which no [confidentiality] request [i]s received” to the nonconfidential portion of the list. 15 U.S.C. § 2607(b)(4)(B).

When an application to maintain confidential treatment is 

received, the EPA must independently determine whether 

confidentiality is warranted. To that end, Congress directed 

the EPA to “promulgate a rule that establishes a plan to review 
5

all claims to protect the specific chemical identities” asserted 

as confidential. 15 U.S.C. § 2607(b)(4)(C). 

Once the EPA compiles the initial list of active chemical 

substances, the Control Act affords the agency up to seven 

years to complete its review of which of those active chemical 

substances should receive confidential treatment. 15 U.S.C. 

§ 2607(b)(4)(E). For those chemicals that remain on the 

confidential portion of the Inventory, the EPA must “develop a 

system to assign a unique identifier to each specific chemical 

identity” and must “apply that identifier consistently to all 

information relevant to the applicable chemical substance[.]” 

Id. § 2613(g)(4)(A). 

The EPA promulgated the final Inventory Rule in August 

2017. 82 Fed. Reg. 37,520 (codified at 40 C.F.R. §§ 710.23–

710.39). The Inventory Rule implements the retrospective 

and prospective reporting requirements that Congress required. 

Companies that manufactured and processed chemicals during 

the ten years prior to June 22, 2016 must submit a “Notice of 

Activity Form A.” See id. at 37,523, 37,525. After the EPA 

designates substances as active or inactive, those that intend to 

revive the manufacture or processing of an inactive chemical 

must submit a “Notice of Activity Form B.” See id. These 

Forms also allow a manufacturer or processor of a chemical 

that was originally on the confidential portion of the Inventory 

to seek to continue that confidential status going forward. 

And it may do so regardless of whether that manufacturer or 

processor was the one that had initially requested that the 

chemical identity be shielded from public disclosure. Id. at 

37,527. 

To assert a claim of confidentiality, the Control Act 

requires the requesting company to certify that: 
6

(i) My company has taken reasonable measures 

to protect the confidentiality of the 

information;

(ii) I have determined that the information is not 

required to be disclosed or otherwise made 

available to the public under any other 

Federal law;

(iii) I have a reasonable basis to conclude that 

disclosure of the information is likely to 

cause substantial harm to the competitive 

position of my company; and

(iv) I have a reasonable basis to believe that the 

information is not readily discoverable 

through reverse engineering.

82 Fed. Reg. at 37,544 (codified at 40 C.F.R. § 710.37(e)); see 

also 15 U.S.C. § 2613(c)(1)(B) (establishing these criteria).

But the Control Act does not stop there. The Act further 

mandates that, once a claim of confidentiality is asserted, its 

proponent must “substantiate” the need for secrecy. 

15 U.S.C. § 2613(c)(3); see also id. § 2607(b)(4)(B)(iii)

(instructing the EPA to “require the substantiation of 

[confidentiality] claims”). To implement that substantiation 

requirement, the Inventory Rule requires applicants to answer 

the following questions:

• Do you believe that the information is exempt 

from [the Act’s] substantiation [requirement]?
7

• Will disclosure of the information likely result 

in substantial harm to your business’s 

competitive position?

• To the extent your business has disclosed the 

information to others (both internally and 

externally), what precautions has your business 

taken?

• Does the information appear in any public 

documents, including (but not limited to) safety 

data sheets, advertising or promotional material, 

professional or trade publication, or any other 

media or publications available to the general 

public?

• Is the claim of confidentiality intended to last 

less than 10 years[?]

• Has EPA, another federal agency, or court made 

any confidentiality determination regarding 

information associated with this chemical 

substance?

• Is the confidential chemical substance publicly 

known to have ever been offered for 

commercial distribution in the United States?

See 82 Fed. Reg. at 37,544 (codified at 40 C.F.R. § 710.37(c)). 

The Inventory Rule does not expressly incorporate all of 

the Act’s many procedural requirements. Nor does it address 

the Control Act’s requirement, 15 U.S.C. § 2613(g)(4), that the 

EPA assign “unique identifiers” to chemicals that it eventually 
8

decides should be listed on the confidential portion of the 

Inventory. 

B

The Environmental Defense Fund is an organization that 

promotes public awareness of the environmental and health 

risks that chemicals pose. See Environmental Defense 

Standing Addendum 3. Environmental Defense timely 

petitioned this court for review of the Inventory Rule. See 15 

U.S.C. § 2618(a). A group of chemical-industry associations

(“Industry”) intervened in support of the EPA. 

II

We start, as we must, by verifying that Environmental 

Defense has Article III standing to challenge the Inventory 

Rule. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 

(2006) (“We have ‘an obligation to assure ourselves’ of 

litigants’ standing under Article III.”) (quoting Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 

180 (2000)). To that end, Environmental Defense must 

demonstrate that it has suffered a concrete and particularized 

injury in fact that is both fairly traceable to the EPA’s action

and likely to be redressed by a favorable judicial decision. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). 

Environmental Defense has succeeded in that task by 

asserting a quintessential claim of informational standing. 

The law is settled that “a denial of access to information” 

qualifies as an injury in fact “where a statute (on the claimants’ 

reading) requires that the information ‘be publicly disclosed’

and there ‘is no reason to doubt their claim that the information 

would help them.’” Friends of Animals v. Jewell, 824 F.3d 

1033, 1040–1041 (D.C. Cir. 2016) (quoting Ethyl Corp. v. 
9

EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002)); see also FEC v. 

Akins, 524 U.S. 11, 21 (1998). Here, Environmental Defense

claims that the Control Act requires disclosure to it (and the 

public at large) of chemical identities that the Inventory Rule 

will keep secret. And “there is no reason to doubt” that access 

to additional information about chemicals manufactured or 

processed in the United States will promote Environmental 

Defense’s environmental interests, research, and educational 

activities. Jewell, 824 F.3d at 1041 (quoting Ethyl Corp., 306 

F.3d at 1148); see generally Environmental Defense Standing 

Addendum. Finally, a decision by this court to vacate or 

require reconsideration of the rule would remedy that asserted 

harm by requiring the disclosure of additional information. 

See Wertheimer v. FEC, 268 F.3d 1070, 1074–1075 (D.C. Cir. 

2001). 

A

Environmental Defense challenges five distinct features of 

the Inventory Rule: (i) the EPA’s exclusion of substantiation 

questions regarding reverse engineering; (ii) the Rule’s criteria 

for “maintaining” a confidentiality claim; (iii) the EPA’s 

choice not to incorporate certain regulatory requirements into

the Inventory Rule; (iv) the EPA’s failure to implement the 

Act’s “unique identifier” requirements in this rulemaking; and 

(v) the Rule’s exemption of exported chemicals from its 

notification requirements. We must uphold the EPA’s Rule 

unless it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); 

see also 15 U.S.C. § 2618(c)(1)(B). Under that standard of 

review, only Environmental Defense’s first claim succeeds. 
10

1

Environmental Defense challenges the EPA’s failure to 

require companies to “substantiate” that a chemical identity 

they wish to keep confidential is not “readily discoverable 

through reverse engineering.” See 15 U.S.C. 

§ 2613(c)(1)(B)(iv), (c)(3). We agree that the reverseengineering aspect of the Inventory Rule comes up short. 

a

At the outset, the EPA and Industry argue that 

Environmental Defense lacks standing to challenge the 

agency’s choice of substantiation questions. In their view, it 

is “merely speculative” that the inclusion of any particular 

question “would lead EPA to disapprove—or would cause a 

potential claimant not to submit—a request to maintain a 

specific chemical identity on the confidential portion of the 

* * * Inventory.” EPA Br. 35 (formatting altered). 

That makes little sense. Substantiation questions are the 

EPA’s tool for gathering the information it uses to evaluate 

confidentiality claims. They are, in other words, an 

indispensable procedural step in the agency’s confidentiality 

determination. Because Environmental Defense asserts an 

informational injury that arises directly from confidentiality 

determinations, “[a]ll that is necessary” for standing is for 

Environmental Defense “to show that the procedural step was 

connected to the substantive result.” Sugar Cane Growers 

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

see also Center for Biological Diversity v. EPA, 861 F.3d 174, 

184 (D.C. Cir. 2017) (petitioner “need not show that but for the 

alleged procedural deficiency the agency would have reached 

a different substantive result”). Informing the confidentiality 

decision is the raison d’être of the substantiation questions. 
11

And that is the end of the matter as far as standing is concerned. 

See Veneman, 289 F.3d at 94–95. 

b

When a company makes a confidentiality claim under the 

Act, it must both “assert” and then “substantiate” the need for 

such protection. 15 U.S.C. § 2613(c)(1), (3). An “assertion” 

of a confidentiality claim must “include a statement” that, 

among other things, the claimant has a “reasonable basis to 

believe that the information is not readily discoverable through 

reverse engineering.” Id. § 2613(c)(1)(B)(iv). The 

Inventory Rule properly effectuates that requirement. 82 Fed. 

Reg. at 37,544 (codified at 40 C.F.R. § 710.37(e)(4)). The 

problem for the EPA is that the Control Act does not accept a 

company’s assertions at face value. Quite the opposite, the 

statute specifically requires the company to “substantiate” its 

confidentiality claim. 15 U.S.C. § 2613(c)(3). 

In the Notice of Proposed Rulemaking for the Inventory 

Rule, the EPA listed more than twenty substantiation questions, 

including questions related to each of the four statutorily 

required assertions. 82 Fed. Reg. 4255, 4268–4269 (Jan. 13, 

2017); see 15 U.S.C. § 2613(c)(1)(B). To address reverse 

engineering, the proposed questions were:

Does this particular chemical substance leave 

the site of manufacture in any form, e.g., as 

product, effluent, emission? If so, what 

measures have been taken to guard against the 

discovery of its identity? * * * If the chemical 

substance leaves the site in a product that is 

available to the public or your competitors, can 

the chemical substance be identified by analysis 

of the product?
12

Id. at 4268. 

By the agency’s own admission, the final rule sets forth an 

“extensively re-written” list of questions. 82 Fed. Reg. at 

37,527, 37,537. The EPA scrapped, among other things, all

substantiation questions related to the requirement that a 

substance’s chemical identity not be susceptible to reverse 

engineering. See id. at 37,544. 

An agency acts arbitrarily and capriciously when it offers

inaccurate or unreasoned justifications for a decision. See

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983); Clean Air Council v. 

Pruitt, 862 F.3d 1, 10 (D.C. Cir. 2017) (concluding that the 

EPA’s explanation for a decision was “inaccurate and thus 

unreasonable”). 

That is precisely what the EPA did here. Its omission of 

any inquiry into a chemical identity’s susceptibility to reverse 

engineering effectively excised a statutorily required criterion 

from the substantiation process. See 15 U.S.C. 

§ 2613(c)(1)(B)(iv), (c)(3). Lest there be any doubt, the 

agency conceded at oral argument that the Inventory Rule 

eliminated the only questions thatsubstantiate the assertion that 

“the information is not readily discoverable through reverse 

engineering.” Id. § 2613(c)(1)(B)(iv); see Oral Argument Tr. 

at 35:42–35:46 (“These questions do not specifically 

encompass reverse engineering.”).

The agency’s explanation for excising that criterion was, 

nonsensically, a denial that it had done so. Specifically, the 

EPA explained that the omission is “intended to more 

succinctly secure answers for the basis of the [confidentiality] 

assertions[.]” 82 Fed. Reg. at 37,537 (emphasis added). But 
13

succinctness means no unnecessary words; it does not mean no 

words at all. What the Inventory Rule actually does is decline

altogether to “secure answers” substantiating a company’s 

“assertion” that its chemical product cannot be reverse

engineered. Id. But it makes no sense to treat as confidential 

the chemical identity of a substance that can readily be 

discovered through reverse engineering—as the EPA itself 

agrees. Oral Argument Tr. 24:48–24:59 (“[D]oes the EPA 

agree that if something is readily reversibly engineered [then] 

it doesn’t qualify for confidential treatment?” [Agency 

counsel]: “Yes.”). 

Yet the EPA’s Rule offers no sensible explanation at all 

for that gap in substantiation, nor does it even acknowledge the 

consequence of its omission. That error is fatal. The 

Inventory Rule is arbitrary and capricious to the extent that it 

omits any substantiation requirement pertaining to reverse 

engineering. See State Farm, 463 U.S. at 43; Clean Air 

Council, 862 F.3d at 10. 

2

Next, Environmental Defense contends that the Inventory 

Rule enables a broader array of companies to “maintain” an 

existing confidentiality claim than the Control Act allows. 15 

U.S.C. § 2607(b)(4)(B)(ii). That is incorrect. 

Under the Control Act, if a manufacturer or processor 

wants the confidential status of an already listed chemical to 

continue on the updated Inventory, it must submit a request to 

the EPA. 15 U.S.C. § 2607(b)(4)(B)(ii). The EPA reads that 

statutory directive to allow “any manufacturer or processor [to]

seek to maintain an existing claim for specific chemical 

identity,” even if the company was not the source of the 

“original claim that caused the specific chemical identity to be 
14

listed on the confidential portion of the Inventory.” 82 Fed. 

Reg. at 37,527. That is, the Inventory Rule allows any 

company that manufactures or processes substances already on 

the confidential Inventory to seek perpetuation of that status, 

regardless of whether it was the company that claimed 

confidentiality in the first place.

Environmental Defense reads the statutory language 

differently. In its view, the Control Act permits only the 

original claimant or its successor-in-interest to preserve 

confidential treatment. 

The EPA wins this debate.

For starters, the text of the Control Act does not require 

Environmental Defense’s rule. The relevant statutory 

language is silent as to whether a company may maintain an 

existing claim of confidentiality if it was not the original 

claimant. See 15 U.S.C. § 2607. Congress thus left that 

question of implementation to the expertise of the EPA. See 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 844 (1984). So we must sustain the EPA’s position 

if it “is based on a permissible construction of the statute.” Id. 

at 843. 

The EPA’s position easily clears that hurdle. Allowing 

any chemical manufacturer or processor to seek continued 

protection against public disclosure for its chemical substance

fits comfortably within the statutory text. Section 2607’s sole

limitation on the class of manufacturers and processors that 

may wish to maintain an existing confidentiality claim is that 

they manufacture or process “a chemical substance on the 

confidential portion of the [Inventory].” 15 U.S.C. 

§ 2607(b)(4)(B)(ii). “[A]ny” of those manufacturers or 

processors may apply. Id. (emphasis added).
15

Nothing in the word “maintain” contracts that broad 

language. To “maintain” commonly means “to keep in an 

existing state.” MERRIAM-WEBSTER DICTIONARY 431 (def. 

1) (7th ed. 2016). The word imposes no limit on who may do 

that maintaining. A recent homebuyer, for example, might 

maintain the existing landscaping. New team players 

certainly hope to maintain the winning streak of last year’s 

team. So too here, the statutory language naturally permits a 

manufacturer or processor to maintain a confidentiality status 

first obtained by another. 

Environmental Defense agrees that an original claimant’s 

successor-in-interest can “maintain an existing claim.” But 

nothing in the statutory text requires drawing an impermeable 

line there. The EPA reasonably concluded that the claimant’s

corporate genealogy is beside the point. 

Environmental Defense reasons that all claimants who 

were not original claimants or their successors-in-interest

should be required to file a new claim of confidentiality under 

15 U.S.C. § 2613. That route would afford the EPA just 

ninety days for review, 15 U.S.C. § 2613(g)(1)(A), as opposed 

to the seven years allowed to decide whether existing claims of 

confidentiality should continue, id. § 2607(b)(4)(E). 

Environmental Defense’s approach is no real alternative at 

all. The Control Act provides that for active substances, if “no 

request [i]s received to maintain an existing claim for 

protection against disclosure,” the EPA “shall” move that 

chemical substance “from the confidential portion of the list 

* * * to the nonconfidential portion of that list.” 15 U.S.C. 

§ 2607(b)(4)(B)(iv) (emphasis added). And the statute 

requires that those requests to maintain confidentiality had to 

be filed “not later than 180 days after the date on which the 
16

final rule is published in the Federal Register,” id. 

§ 2607(b)(4)(A)(i)—that is, by February 7, 2018. That 

approach leaves insufficient time for new applications for 

confidentiality to be filed and acted upon before the previously

confidential chemical identity is publicly disclosed. And once 

that disclosure occurs, the cat is out of the bag. There will be 

no confidentiality for a new claimant to obtain. See id.

§ 2607(b)(8) (“No person may assert a new claim * * * for 

protection from disclosure of a specific chemical identity of 

any active or inactive substance * * * that is not on the 

confidential portion of the [Inventory].”); see also S. REP. NO. 

67, 114th Cong., 1st Sess. 24 (2015) (explaining that 

“information that is * * * already publicly available cannot be 

newly protected as [confidential] under [the Act]”). 

Environmental Defense finds that consequence 

untroubling, reasoning that any company that had not already 

claimed confidentiality for a chemical that it manufactures or 

processes should be deemed to have forfeited the claim. 

Environmental Defense Br. 40–41. But that ignores the 

myriad circumstances in which it would have made no sense 

for a company to submit its own confidentiality claim. For 

instance, there would be no need for more than one 

manufacturer in a co-manufacturing arrangement to submit a 

confidentiality claim for the same chemical substance. 

Likewise, an importer notified by a supplier that a chemical 

already was on the confidential portion of the list would have 

had no reason to submit a redundant claim. The EPA sensibly 

determined that companies like those “legitimately benefit 

from the confidential status of a specific chemical identity,” 

and therefore should have the opportunity to seek 

confidentiality going forward. 82 Fed. Reg. at 37,527.

For all of those reasons, the EPA acted well within its 

discretion in concluding that, as part of the Inventory update, 
17

any manufacturer or processor of a chemical substance can file 

a claim to maintain the chemical substance’s confidentiality.

3

The Inventory Rule provides that information claimed to 

be confidential “will be treated and disclosed in accordance 

with 40 C.F.R. part 2, subpart B,” which regulates the EPA’s 

treatment of confidential business information. 82 Fed. Reg. 

at 37,543 (codified at 40 C.F.R. § 710.37(a)).

2

 Environmental 

Defense takes exception to that provision because the subpart 

B regulations do not mirror all of the Control Act’s procedural 

requirements. 

At the outset, the EPA and Industry again contest

Environmental Defense’s standing to make this claim. And 

once again, they try to dress a merits argument in jurisdictional 

garb. Environmental Defense is challenging provisions of the 

Inventory Rule that it views as withholding information from 

public disclosure. That is the same type of individualized and 

direct informational injury that parties have standing to 

challenge. See Friends of Animals, 824 F.3d at 1040–1041.

Turning to the merits, Environmental Defense argues that 

the Inventory Rule’s disclosure procedures unlawfully fail to 

incorporate the Control Act’s requirements that the EPA (i)

review claims within ninety days, 15 U.S.C. § 2613(g)(1)(A); 

(ii) inform the claimant of the EPA’s denial of a confidentiality 

claim and allow only thirty days for appeal, id. § 2613(g)(2); 

and (iii) publicly disclose any non-confidential aspects of its 

confidentiality decisions, id. § 2625(j)(1).

 2 40 C.F.R. part 2, subpart B is codified at 40 C.F.R. §§ 2.201–

2.311.
18

That claim fails. Environmental Defense cites nothing in 

the regulation that contradicts those statutory obligations. The 

EPA acknowledges, as it must, that the Act “applies of its own 

force,” EPA Br. 44, and nothing in the Inventory Rule 

countermands or frustrates those statutory obligations. The 

Inventory Rule’s provisions simply complement and elaborate 

upon some of the statutory requirements without displacing the 

others. 

Environmental Defense seems to want the statutory 

requirements duplicated in the rule for duplication’s sake. 

That is not necessary. “[A] regulation can never ‘trump the 

plain meaning of a statute.’” Texas v. EPA, 726 F.3d 180, 195 

(D.C. Cir. 2013) (quoting Atlantic City Elec. Co. v. FERC, 295 

F.3d 1, 11 (D.C. Cir. 2002)). Should the EPA’s future 

implementation of these provisions of the Inventory Rule fall 

short of statutory mandates, a challenge can be raised then. 

But there is nothing facially troubling about the failure to copy 

every relevant statutory obligation into the regulation. 

4

Environmental Defense’s fourth objection to the Inventory 

Rule is that it fails to implement the statutory scheme for 

assigning a unique public identifier for each chemical identity

it decides to keep confidential. Environmental Defense points 

to the Control Act’s requirement that the EPA “develop a 

system to assign a unique identifier to each specific chemical 

identity for which the Administrator approves a request for 

protection from disclosure,” and then “apply that identifier 

consistently to all information relevant to the applicable 

chemical substance[.]” 15 U.S.C. § 2613(g)(4)(A)(i)–(ii). 

The Control Act also directs the EPA to “annually publish and 

update a list of chemical substances, referred to by their unique 
19

identifiers, for which claims to protect the specific chemical 

identity from disclosure have been approved, including the 

expiration date for each such claim[.]” Id. § 2613(g)(4)(B). 

There is no question that the Inventory Rule does not 

implement those requirements. But the APA is patient. Or at 

least more patient than Environmental Defense. Agencies 

need not address all regulatory obligations “in one fell swoop.” 

United States Telecom Ass’n v. FCC, 359 F.3d 554, 588 (D.C. 

Cir. 2004). And nothing in the Control Act requires the EPA 

to develop and implement the unique-identifier system 

alongside its Inventory review process. Unlike the statutory 

command to promulgate the Inventory Rule within a year, see

15 U.S.C. § 2607(b)(4)(A)(i), the Act establishes no deadline

for the EPA’s development and implementation of unique 

identifiers, see id. § 2613(g)(4). And it is not unreasonable for 

the EPA to defer that process while it first starts the process of 

determining how many and which chemical substances will be 

accorded confidential treatment. It is not for us to “secondguess EPA’s decision to prioritize” those regulatory tasks. 

WildEarth Guardians v. EPA, 751 F.3d 649, 656 (D.C. Cir. 

2014).3

 

Environmental Defense separately complains that the EPA 

failed to address its comment about implementing the unique 

identifier system. To be sure, an agency’s “fail[ure] to 

respond to major substantive comments” can render a decision 

 3 This is not a case in which the agency is sitting on its hands. 

The EPA solicited comments “on approaches for assigning and 

applying unique identifiers” before the final Inventory Rule was 

promulgated, 82 Fed. Reg. 21,386 (May 8, 2017), solicited further 

comments on “an additional approach” a few months later, 83 Fed. 

Reg. 5623 (Feb. 8, 2018), and published its final policy 

determination before briefing in this case concluded, 83 Fed. Reg. 

30,168 (June 27, 2018).
20

arbitrary and capricious. Sierra Club v. EPA, 863 F.3d 834, 

838 (D.C. Cir. 2017). At the same time, an agency need not 

“discuss every item of fact or opinion included” in comments. 

Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) 

(quoting Automotive Parts & Accessories Ass’n v. Boyd, 407 

F.2d 330, 338 (D.C. Cir. 1968)). Environmental Defense did 

not submit “major substantive comments” requesting that the 

EPA implement the unique identifier system during this 

rulemaking. Sierra Club, 863 F.3d at 838. It merely 

referenced unique identifiers as part of an “example” of 

statutory requirements that are “broader than just Inventory 

listings.” J.A. 22. Nothing in the APA saddles agencies with 

the crushing task of responding to every single example cited 

in every single comment, especially where, as here, the 

reference is to a matter that the agency permissibly was not yet 

regulating. 

5

Lastly, Environmental Defense objects to the exclusion of 

export-only chemicals from the Inventory Rule’s requirement

that chemical companies notify the EPA of chemical 

substances being manufactured or processed. We hold that 

the EPA’s decision reflected a reasonable interpretation of the 

Control Act. 

Under the Control Act, the EPA “shall require 

manufacturers” and “may require processors” to “notify the 

Administrator * * * of each chemical substance on the 

[Inventory] that the manufacturer or processor * * * has 

manufactured or processed for a nonexempt commercial 

purpose during the 10-year period ending on the day before 

June 22, 2016.” 15 U.S.C. § 2607(b)(4)(A)(i) (emphasis 

added). Without any statutory guidance as to what counts as 

a “nonexempt commercial purpose,” the agency concluded it 
21

was consistent with the Control Act to exclude, among other 

things, “[t]he manufacturing or processing of a chemical 

substance solely for export from the United States * * *.” 82 

Fed. Reg. 37,541 (codified at 40 C.F.R. § 710.27(a)(4)). 

Environmental Defense insists that the statute itself 

declares exports to be a “nonexempt commercial purpose”

because Section 2611, which applies specifically to exports, 

says that “this chapter (other than section 2607 of this title)

shall not apply to any chemical substance, mixture, or to an 

article containing a chemical substance or mixture” that is 

manufactured or processed for export. 15 U.S.C. § 2611(a)(1)

(emphasis added). As Environmental Defense sees it, 

Congress’s decision to carve regulation under Section 2607 out 

of the statute’s otherwise-broad exemption for exported 

chemicals means that Congress intended for Section 2607 to 

apply to exports. 

We agree with Environmental Defense that the upshot of 

Section 2611 is that Section 2607 “shall * * * apply” to 

chemicals for export. But what does it mean to “apply” 15 

U.S.C. § 2607—a nearly four thousand-word chunk of the

statute—to exported chemicals? Congress did not say.

In light of this congressional silence, the Rule’s narrow 

excision of exports from one reporting requirement passes 

muster. See Chevron, 467 U.S. at 843. The EPA explained 

that Section 2611 insulates export chemicals from numerous 

other statutory requirements, including prospective reporting 

requirements under 15 U.S.C. § 2604. 82 Fed. Reg. at 37,528; 

see 15 U.S.C. § 2611(a)(1) (providing that “this chapter,” 

including § 2604, “shall not apply to” export-only chemicals); 

id. § 2604(a) (imposing prospective notification requirements); 

id. § 2607(b)(1) (“[The Inventory] shall at least include each 

chemical substance which any person reports, under section 
22

2604 of this title or subsection (a) of this section, is 

manufactured or processed in the United States.”). So all the 

EPA did here is exempt those same export chemicals from the 

Act’s retrospective reporting requirements in Section 2607. 

See 15 U.S.C. § 2607(b)(4)(A)(i). To decide otherwise would 

have made compliance more onerous for previous 

manufacturers of exported chemicals than for future

manufacturers of exported chemicals. Whatever Congress 

meant by the cross-reference to Section 2607 in Section 2611, 

the EPA reasonably concluded it was not to impose that 

illogical regulatory construct.

Nor did the EPA fail to provide sufficient notice in the 

Notice of Proposed Rulemaking that export-only chemicals 

would be excluded from the statute’s definition of “nonexempt

commercial purpose.” See Environmental Defense Br. 57. 

The Notice advised that the EPA intended to define 

“nonexempt commercial purpose” consistently with the 

“commonly-accepted usage” of that phrase at the time the 

Control Act was amended. 82 Fed. Reg. at 4259. Two of the 

three legal sources the agency cited for that common usage—

15 U.S.C. § 2604 and 40 C.F.R. § 720.30—exempt export-only 

chemicals from reporting requirements. Id. Unsurprisingly, 

then, the agency received several comments requesting that it 

add the export-only exemption that was missing from the 

proposed rule. See, e.g., J.A. 47 (Fertilizer Institute 

comments); J.A. 68 (Biobased and Renewable Products 

Advocacy Group comments); J.A. 89 (Vinyl Institute 

comments); J.A. 118 (Pine Chemicals Association

International comments). Environmental Defense, like those 

other commenters, “should have anticipated that the change 

was possible, and thus reasonably should have filed their 

comments on the subject during the notice-and-comment 

period.” CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d

1076, 1079–1080 (D.C. Cir. 2009) (formatting altered).
23

* * * * *

For all of those reasons, we order a limited remand, 

without vacatur, for the EPA to address its arbitrary elimination 

of substantiation questions regarding reverse engineering. We 

otherwise deny the petition for review.

So ordered.