United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2011 Decided July 1, 2011

No. 10-1056

NATURAL RESOURCES DEFENSE COUNCIL,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AMERICAN CHEMISTRY COUNCIL, ET AL.,

INTERVENORS

On Petition for Review of a Final Action

of the Environmental Protection Agency

Paul Cort argued the cause for petitioner. With him on 

the briefs was Deborah Reames.

Stephanie J. Talbert, Attorney, U.S. Department of 

Justice, argued the cause for respondent. With her on the brief 

were John C. Cruden, Deputy Assistant Attorney General and 

Sara Schneeberg, Attorney, U.S. Environmental Protection 

Agency. Thomas A. Lorenzen, Attorney, U.S. Department of 

Justice, entered an appearance.
2

Barbara Baird argued the cause for intervenor South 

Coast Air Quality Management District. With her on the brief 

was Kurt R. Wiese.

Leslie Sue Ritts, Claudia M. O'Brien, Charles H. Knauss, 

Sandra P. Franco, Thomas G. Echikson, Rachel D. Gray, and 

Adam J. White were on the brief for intervenors for 

respondent American Chemistry Council, et al. Richard P. 

Sobiecki and Stacey L. VanBelleghem entered an appearance.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Yet again we face a challenge to 

the Environmental Protection Agency’s regulation of ozone 

under the Clean Air Act. At issue this time is an EPA 

“guidance document” addressing obligations of regions still in 

nonattainment of a now-revoked ozone air quality standard. 

Petitioner argues that the Guidance amounts to a legislative 

rule issued in violation of the Administrative Procedure Act’s 

notice and comment requirement and that its substantive 

content is contrary to law. Firing nearly all the arrows in its 

jurisdictional quiver, EPA argues that petitioner lacks 

standing, that the Guidance does not qualify as final agency 

action, and that petitioner’s claims are unripe for judicial 

review. As we explain in this opinion, all three arrows miss 

their target. On the merits, we conclude that the Guidance 

qualifies as a legislative rule that EPA was required to issue 

through notice and comment rulemaking and that one of its 

features—the so-called attainment alternative—violates the 

Clean Air Act’s plain language. We therefore grant the 

petition for review and vacate the Guidance. 
3

I.

The Clean Air Act requires EPA to establish national 

ambient air quality standards (NAAQS) for certain criteria 

pollutants, including ozone. 42 U.S.C. § 7409(a). Regions in 

nonattainment of those standards are subject to “additional 

restrictions over and above the [Act’s] implementation 

requirements.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 

457, 476 (2001). These additional restrictions appear in Title

I, Part D of the Act. “Subpart 1 contains general 

nonattainment regulations that pertain to every pollutant for 

which a NAAQS exists. . . . Subpart 2, added by the Clean Air 

Act Amendments of 1990, addresses ozone.” Id. (internal 

citations omitted). That latter subpart classifies nonattainment 

areas as either “marginal,” “moderate,” “serious,” “severe,” or 

“extreme,” 42 U.S.C. § 7511(a)(1), giving areas with worse 

air quality extra time to come into compliance in exchange for 

imposing more stringent standards. Id. (listing classifications 

and attainment dates). Subpart 2 also contains provisions 

designed to encourage these regions to meet their deadlines. 

Central to this case, one of those provisions, section 185, 

directs states to impose fees on all major stationary sources in 

severe and extreme nonattainment areas that miss their 

deadlines. Id. § 7511d(a). Under section 185, such states must 

submit implementation plans, and if a state fails to do so, EPA 

must collect the fees itself. Id. § 7511d(a), (d). In addition, 

states failing to submit adequate implementation plans may 

incur penalties, including loss of federal highway funding. Id. 

§ 7509(b)(1).

Until 1997, EPA had in place a 1-hour ozone NAAQS 

prohibiting average hourly concentrations from exceeding .12 

parts per million. The 1990 amendments, including the table 

specifying nonattainment classifications and attainment 

deadlines, incorporate that 1-hour standard. Id. § 7511(a)(1). 

In 1997, however, EPA found the 1-hour standard insufficient 
4

to “protect the public health,” id. § 7409(b), and so 

promulgated an 8-hour standard of .08 parts per million. 

National Ambient Air Quality Standards for Ozone: Final 

Rule, 62 Fed. Reg. 38,856, 38,863 (July 18, 1997) (codified at 

40 C.F.R. pt. 50) (“1997 Ozone Rule”). Because the .12 parts 

per million 1-hour standard roughly corresponds to a .09 parts 

per million 8-hour standard, the revision changed not only 

“the measuring stick [but also] the target.” S. Coast Air 

Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 892 (D.C. Cir. 

2006). Overall, the 8-hour standard is more protective of 

public health and “generally even more effective in limiting 

1-hour exposures . . . than is the . . . 1-hour standard.” 1997 

Ozone Rule, 62 Fed. Reg. at 38,863. That said, EPA 

acknowledged that “it is possible that an 8-hour standard 

alone could allow for high 1-hour exposures of concern.” Id. 

Accordingly, to ease the transition to the new standard, EPA 

determined that the requirements of Subpart 2, including 

section 185, would apply only to nonattainment under the 1-

hour standard, which would remain in place until all areas 

achieved attainment. Id. at 38,873. The 8-hour standard would 

be implemented only under Subpart 1, a part of the statute that 

leaves EPA substantial regulatory flexibility. 

Reviewing the 1997 rule in Whitman v. American 

Trucking Ass’ns, the Supreme Court observed that even 

though Subpart 2 expressly relies on the 1-hour standard, EPA 

remained free to revise the NAAQS. 531 U.S. at 484. Given 

this, the Court recognized that the statute left several gaps for 

EPA to fill as it implemented revised NAAQS. Id. at 483–84 

(identifying three specific gaps related to classification and 

attainment deadlines). The Court nonetheless held that EPA’s 

exemption of the 8-hour standard from the Subpart 2 

requirements violated the statute. Id. at 484–86. According to 

the Court, Congress intended Subpart 2 to “eliminate[] [the] 

regulatory discretion” that Subpart 1 allowed and that EPA’s 
5

reading was impermissible because it “render[ed] Subpart 2’s 

carefully designed restrictions on EPA discretion utterly 

nugatory.” Id. at 484. “A plan reaching so far into the future,” 

the Court explained, “was not enacted to be abandoned the 

next time the EPA reviewed the ozone standard.” Id. at 485.

Following American Trucking, EPA tried again to 

reconcile Subpart 2 with the new 8-hour standard. See Final 

Rule to Implement the 8-Hour Ozone National Ambient Air 

Quality Standard—Phase 1, 69 Fed. Reg. 23,951 (Apr. 30, 

2004) (codified at 40 C.F.R. pts. 50, 51, 81). In a 2004 

rulemaking, the agency determined that Subpart 2 would 

apply only to areas in nonattainment of both the 1-hour and 

the 8-hour standards, but that the 1-hour standard would be 

withdrawn in full one year after the 8-hour standard’s 

effective date. Pursuant to this new scheme, 76 of the 122 

then-non-attaining areas would be subject only to Subpart 1. 

S. Coast, 472 F.3d at 892. Addressing one of the gaps the 

Supreme Court identified in American Trucking—relating to 

regional classification under the 8-hour standard—EPA noted 

that because net air quality had improved since 1990, some 

areas would have a lower classification under the 8-hour 

standard than they had had under the 1-hour standard. Id. at 

890. For instance, although Baton Rouge had been a severe 

nonattainment area under the 1-hour standard, it was in only 

marginal nonattainment of the 8-hour standard. See id. at 899. 

Rather than allow such regions to loosen existing 

implementation standards, EPA interpreted section 172(e)—a 

Subpart 1 “anti-backsliding” provision that applies “[i]f the 

administrator relaxes a [NAAQS],” 42 U.S.C. § 7502(e) 

(emphasis added)—to apply as well where NAAQS were 

made more stringent. See Final Rule to Implement the 8-Hour 

Ozone National Ambient Air Quality Standard—Phase 1, 69 

Fed. Reg. at 23,972 (concluding that Congress intended “that 

such controls not be weakened where the NAAQS is made 
6

more stringent”). Section 172(e) provides that where EPA 

relaxes a NAAQS, it “shall . . . promulgate requirements 

applicable to all areas which have not attained that standard as 

of the date of such relaxation. Such requirements shall 

provide for controls which are not less stringent than the 

controls applicable to areas designated nonattainment before 

such relaxation.” 42 U.S.C. § 7502(e). Accordingly, the 2004 

Rule announced that Subpart 2 “applicable controls” had to 

remain in place for areas that had been in nonattainment under 

the 1-hour standard and were in attainment or a lower 

classification of nonattainment under the 8-hour standard. S. 

Coast, 472 F.3d at 890. For Baton Rouge, for instance, 

controls applicable to severe nonattainment regions would 

continue to apply despite the fact that the city qualified as a 

marginal nonattainment area under the new standard. Sorting 

through the various Subpart 2 provisions, EPA determined 

that some were applicable controls and others, including 

section 185 fees, were not. Id.

In South Coast Air Quality Management District v. EPA, 

we rejected a challenge to EPA’s withdrawal of the 1-hour 

standard but vacated the portions of the rule exempting areas 

in nonattainment of only the 8-hour standard from Subpart 2 

strictures. Id. at 892–95. At the least, we held, Subpart 2 must 

apply for areas with 8-hour concentrations exceeding .09 parts 

per million, the 8-hour equivalent of the 1-hour standard on 

which Congress relied in enacting Subpart 2. Id. at 892–94. 

For areas with 8-hour concentrations between .08 parts per 

million (the new standard) and .09 parts per million, we found 

that EPA’s sole reason for excluding these areas from Subpart 

2—to create regulatory flexibility and thus “maximize its own 

discretion”—contradicted the “clear intent of Congress.” Id.

at 894–95. We also concluded that although EPA’s 

interpretation of section 172(e) was reasonable, the same 

could not be said for its exclusion of section 185 fees from 
7

“applicable controls.” Id. at 900, 902–03. We explained: “[a]s 

Congress set the penalty deadline well into the future, giving 

states and industry ample notice and sufficient incentives to 

avoid the penalties, they were ‘applicable’ before they were 

actually imposed . . . , [and] [b]ecause these penalties were 

designed to constrain ozone pollution, they are controls that 

section 172(e) requires to be retained.” Id. at 903. Responding 

to EPA’s argument that enforcement would be impractical 

because the penalty calculation relied on the no-longermeasured 1-hour standard, we warned that “section 172(e) 

does not condition its strict distaste for backsliding on EPA’s 

determinations of expediency; EPA must determine its 

procedures after it has identified what findings must be made 

under the Act.” Id. In sum, we ruled that pursuant to section 

172(e)’s anti-backsliding principles, an area subject to section 

185 penalties due to its classification under the now-defunct 

1-hour standard must apply those penalties as an “applicable 

control” if the area missed its attainment deadline under the 

1-hour standard.

Now before us is EPA’s latest attempt to reconcile the 8-

hour standard with Subpart 2. This time its effort relates only 

to the application of section 185 fees to the eight regions in 

severe or extreme nonattainment of the 1-hour standard: 

Baltimore, Baton Rouge, Houston, New York City, 

Sacramento, the San Joaquin Valley, the South Coast Air 

Basin (CA), and the Southeast Desert (CA). Because 

attainment deadlines for the eight regions have now expired, 

all are in the process of developing section 185 

implementation plans. Faced with the prospect of hefty fees, 

industry groups complained to EPA that because they already 

had in place the best available emission control technology, 

they could reduce emissions and thus avoid fees only by 

cutting production. Report of the US EPA Clean Air Act 

Advisory Committee Task Force on Section 185 of the Clean 
8

Air Act 3 (May 12, 2009) (included at J.A. 56). Moreover, 

they asserted, because section 185 set such a low emissions 

threshold for major stationary sources, the fees would apply to 

many small businesses, as well as to hospitals and schools. Id. 

at 4. Lastly, they alleged that stationary sources contribute far 

less to overall air pollution today than they did in 1990 and 

face far higher marginal costs for further reduction than do 

mobile sources. Id. at 3.

To address these concerns, the Clean Air Act Advisory 

Committee, a body created by the 1990 Amendments to 

advise EPA on scientific and industry developments relevant 

to rule making, established a task force that generated a list of 

section 185 alternatives including shifting costs to mobile 

sources and implementing market-based programs. 

Environmental organizations participating in the task force 

submitted an “Alternative Opinion” criticizing the policy 

rationales of the industry groups and asserting that the statute 

allowed no alternatives. The Committee submitted the task 

force report to EPA along with the following question: “Is it 

legally permissible under either section 185 or 172(e) for a 

State to exercise the discretion identified in [the options listed 

in this letter]?” Letter from Eddie Terrill & Robert Wyman, 

Co-chairs of the Section 185 Task Force, to Elizabeth Craig, 

Acting Assistant Administrator, Office of Air & Radiation 

(May 16, 2009) (“Task Force Letter”) (included at J.A. 51). 

In response, EPA issued a “Guidance” document aimed 

at Regional Air Division Directors—the agency officials 

directly responsible for implementation plan approval. That 

January 5, 2010, document explains to Directors that 

[i]n the implementation rule for the 1997 

ozone NAAQS, EPA determined that although 

section 172(e) does not directly apply where 
9

EPA has strengthened the NAAQS, as it did in 

1997, it was reasonable to apply the same 

principle for the transition from the 1-hour 

NAAQS to the 1997 8-hour NAAQS. As part 

of applying the principle in section 172(e) for 

purposes of the transition from the 1-hour 

standard to the 1997 8-hour standard, EPA can 

either require states to retain programs that 

applied for purposes of the 1-hour standard, or 

alternatively can allow states flexibility to 

adopt alternative programs, but only if such 

alternatives are ‘not less stringent’ than the 

mandated program. 

Memorandum from Stephen D. Page, Director, Office of Air 

Quality Planning & Standards to Regional Air Division 

Directors 3 (Jan. 5, 2010) (“Fee Program Guidance”) 

(included at J.A. 66). In other words, EPA believes 1-hour 

nonattainment areas have flexibility to choose between the 

statutorily mandated program and an equivalent—i.e., the 

program alternative. 

In addition to that alternative, the Guidance explains, 

regions attaining either the 1-hour or the 8-hour standard can 

avoid section 185 fees through an “attainment alternative.” 

Specifically, in such regions the existing 8-hour 

implementation controls would qualify as a “not less 

stringent” alternative to section 185 fees. Id. at 3–4. In other 

words, a region satisfying the 8-hour standard would have no 

obligation to pay section 185 fees even though it remained in 

nonattainment of the 1-hour standard. The Guidance sets forth 

two justifications for the attainment alternative. First, “it 

would unfairly penalize sources in these areas to require that 

fees be paid after an area has attained the 8-hour standard due 

to permanent and enforceable emission reductions because the 
10

fees were imposed due to a failure to meet the applicable 

attainment deadline for the 1-hour standard, not any failure to 

achieve the now applicable 8-hour standard by its attainment 

date.” Id. at 4. Second, because EPA no longer redesignates 

areas under the 1-hour standard, “relief from the 1-hour fee 

program requirements under the terms of the statute is an 

impossibility, since the conditions the statute envisioned for 

relieving an area of its fee program obligation”—

reclassification as in attainment of the 1-hour standard—“no 

longer can exist.” Id. 

As to both the program and attainment alternatives, the 

Guidance explains that approval of individual alternatives 

would occur on a case-by-case basis. Specifically, if after 

preliminarily assessing a proposal, EPA were to find the 

alternative satisfactory, it would proceed with notice and 

comment to finalize that finding. Id. at 3. 

On March 5, 2010, the Natural Resources Defense 

Council (NRDC) filed a petition for review of the Guidance 

pursuant to Clean Air Act section 307(b)(1), which gives this 

court exclusive jurisdiction over challenges to final EPA 

actions. 42 U.S.C. § 7607(b)(1). NRDC argues that EPA 

violated the Administrative Procedure Act by issuing the 

Guidance without notice and comment and that both the 

program and attainment alternatives violate the Clean Air Act. 

In response, EPA argues that NRDC lacks standing, that the 

Guidance fails to qualify as final agency action, and that 

NRDC’s challenges are unripe for review. On the merits, EPA 

contends that the Guidance is either a policy statement or an 

interpretive rule and, in either case, is exempt from the notice 

and comment requirement. It also defends both alternatives as 

permissible exercises of statutory gapfilling. Numerous 

industry groups and the South Coast Air Quality Management 

District have intervened in support of EPA.
11

II.

NRDC argues that it has “organizational standing” due to 

alleged injuries suffered by two of its members. Sierra Club v. 

EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (listing three 

requirements of organizational standing, only one of which—

that at least one member would have standing to sue in her 

own right—is at issue in this case); see also Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (to 

demonstrate that a member would have standing to sue in her 

own right, the organization must establish that she has 

suffered injury, caused by the defendant’s action, and 

redressable through this claim). Both members live in 1-hour 

nonattainment areas (one in the Houston area, which has an 

attainment deadline of November 15, 2007, and the other in 

the San Joaquin Valley, which has a deadline of November 

15, 2010), and both assert that local ambient ozone levels 

have adversely affected their health and forced them to reduce 

time they spend outside. See Marilyn McGill Aff. ¶¶ 2, 6; 

Gaylee Amend Aff. ¶¶ 2, 6–8; see also 42 U.S.C. § 

7511(a)(1); Approval and Promulgation of Implementation 

Plans; Texas; Houston/Galveston Nonattainment Area; 

Ozone, 66 Fed. Reg. 57,160 (Nov. 14, 2001) (codified at 40 

C.F.R. pt. 52) (approving plan for Houston, a severe 

nonattainment area, to achieve attainment by 2007); Clean Air 

Act Reclassification; San Joaquin Valley Nonattainment Area, 

69 Fed. Reg. 20,550 (Apr. 16, 2004) (codified at 40 C.F.R. pt. 

81) (reclassifying the San Joaquin Valley as an extreme 

nonattainment area and therefore pushing the attainment 

deadline to 2010 from 2005). According to NRDC, the 

Guidance exacerbates these injuries by delaying or 

suspending future air quality improvements. Any such effect, 

EPA counters, is purely hypothetical because it may never 

approve an alternative. 
12

In our view, the Guidance injures NRDC’s members in 

three independent ways. First, the Guidance caused several 

nonattainment areas, including Houston and the San Joaquin 

Valley, to abandon plans to submit section-185-compliant 

implementation plans, thus delaying, at the very least, 

implementation of section 185, which in turn delays the 

reduction of ambient ozone and harms NRDC members. See 

Elena Craft Aff. ¶¶ 7–9; Sarah Jackson Aff. ¶¶ 6–12. Second, 

even in the San Joaquin Valley, where the attainment deadline 

had not yet passed at the time NRDC filed this petition, the 

Guidance had a present, concrete effect because it eliminated 

section 185’s powerful incentive for major stationary sources 

to reduce emissions before the deadline. See S. Coast, 472 

F.3d at 903 (explaining that even where a nonattainment 

deadline has yet to pass, section 185 is currently applicable 

because it incentivizes emission reductions before fees are 

implemented). Third, because the Guidance replaces a 

brightline section 185 requirement with a flexible standard, it 

is likely to result in lengthier rulemaking processes. And

because an order vacating the Guidance would require 

Houston and the San Joaquin Valley to submit section-185-

compliant state implementation plans (or, if they failed to do 

so, because EPA itself would be obligated to implement 

section 185, see 42 U.S.C. § 7511d(d)), these injuries are all 

redressable. See Recording of Oral Arg. at 31:05–09 (counsel 

for EPA clarifying that were we to vacate the Guidance, 

nonattainment regions would remain obligated to submit SIPs 

under existing deadlines and would not receive extensions 

related to future rulemakings); Lujan, 504 U.S. at 562 

(explaining that where “a plaintiff’s asserted injury arises 

from the government’s allegedly unlawful regulation [of a 

third party]” the critical question is how the third party would 

respond to an order declaring the government’s action illegal).
13

EPA nonetheless insists that the Guidance causes no 

injury because any approved alternative program will, by 

definition, be “not less stringent” than section 185 fees. Of 

course, this argument carries absolutely no weight with 

respect to the attainment alternative for which the Guidance 

requires no equivalency analysis. The argument is also

unpersuasive with respect to the program alternative. To 

begin with, it is possible that a plan EPA might legitimately 

find equivalent to a section 185 penalty (and which we would 

thus uphold on the merits) could nonetheless be so 

meaningfully different as to cause cognizable Article III 

injury. In any event, even assuming that a resulting program 

were perfectly equivalent, the delay in improving air quality 

would still injure NRDC members. EPA’s argument also 

proves far too much. Were EPA to prevail, although NRDC 

might well have standing to bring an as-applied challenge to 

any particular “not less stringent” determination, no one 

would have standing to challenge EPA’s authority to allow 

alternatives in the first place. Especially given that Congress 

enacted Subpart 2 for the very purpose of curtailing EPA 

discretion, see Am. Trucking, 531 U.S. at 484–86, it would be 

ironic indeed if the application of standing doctrine allowed 

EPA to effectively maintain that very discretion. Neither 

precedent nor logic requires us to adopt such a 

counterintuitive approach to standing.

The next two jurisdictional issues—finality and 

ripeness—turn on the same question: whether the Guidance 

announces a binding change in the law. Bennett v. Spear, 520 

U.S. 154, 177–78 (1997) (explaining that to be final, the 

action must (1) “mark the consummation of the agency’s 

decisionmaking process,” and (2) “be one by which rights or 

obligations have been determined, or from which legal 

consequences will flow” (internal quotation marks omitted)); 

Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967) 
14

(identifying finality as a necessary feature of fitness for 

review). It did. Prior to issuing the Guidance, neither the 

statute nor EPA regulations nor case law authorized EPA 

regional directors to approve implementation plans containing 

alternatives to section 185 fees. Conceding as much with 

respect to regulations and case law, EPA argues that section 

172(e) expressly authorizes alternatives in this specific 

context. We disagree. Although section 172(e) does allow 

EPA to sanction alternatives where it relaxed the NAAQS, 

nothing in the statute expressly addresses situations where, as 

here, EPA strengthened the NAAQS. Accordingly, while 

section 172(e) expressly contemplates alternatives, its 

application in this context requires interpretation—a point 

EPA acknowledges elsewhere when it asserts that “there is a 

gap in the statute that the EPA must fill.” Resp’t’s Br. 34. 

This is all the more so with respect to the attainment 

alternative: because section 172(e) protects against 

backsliding from an old standard, nothing in it hints that a 

state could escape from its strictures by satisfying a new 

standard.

EPA insists that the Guidance changed nothing because 

prior to its issuance, a regional director could have considered 

an alternative. Perhaps so, but that director also retained 

discretion, now withdrawn by the Guidance, to reject the 

alternative solely for failing to comply with section 185. 

Indeed, this is essentially what happened when the San 

Joaquin Valley Unified Air Pollution Control District 

submitted a section 185 plan that exempted certain major 

stationary sources. After notice and comment, EPA rejected 

the plan for failure to comply with section 185, explaining 

that because San Joaquin never characterized the plan as an 

alternative, EPA had no need to “take a final position 

regarding whether it could approve a substitute program for 

the program specified under [Clean Air Act] section 185.” 
15

Revisions to the California State Implementation Plan, San 

Joaquin Valley United Air Pollution Control District, 75 Fed. 

Reg. 1716, 1717–18 (Jan. 13, 2010). In other words, had San 

Joaquin asked EPA to treat its proposal as an alternative, the 

regional director might have performed an equivalency 

analysis or determined that alternatives were categorically 

unacceptable. Post-Guidance, however, the director may no 

longer reject a plan on the latter ground. The permissibility of 

alternatives is now a closed question, and the Guidance leaves 

to future rulemakings only the issue of whether a specific 

proposed alternative satisfies the program or attainment 

option. 

The Guidance’s language supports the conclusion that 

EPA has definitively interpreted section 172(e) as permitting

alternatives. The Guidance explains that “EPA is electing to 

consider alternative programs to satisfy the section 185 fee 

program [implementation plan] revision requirement,” and the 

document announces that “[i]f [EPA’s] preliminary 

assessment indicates that the alternative program is not less 

stringent, we would issue a notice in the Federal Register 

proposing to make such a determination.” Fee Program 

Guidance at 3. By contrast, with regard to approvability of 

individual plans, the document expressly reserves discretion 

for future administrative action: “The remainder of this 

memorandum describes the circumstances under which we 

believe we can approve an alternative program that is ‘no less 

stringent.’ These interpretations will only be finalized through 

. . . notice-and-comment rulemaking to address the fee 

program obligations associated with each applicable 

nonattainment area.” Id.

In sum, then, the Guidance altered the legal regime by 

resolving the question posed by the Clean Air Act Advisory 

Committee: “Is it legally permissible under either section 185 
16

or 172(e) for a State to exercise the discretion identified in 

[the options listed in this letter]?” Task Force Letter. 

Answering that question affirmatively, the Guidance binds 

EPA regional directors and thus qualifies as final agency 

action. Bennett, 520 U.S. at 177–78; see also Appalachian 

Power Co. v. EPA, 208 F.3d 1015, 1020–23 (D.C. Cir. 2000) 

(explaining that for the purposes of finality, it is irrelevant 

how the interpretation will apply to any individual state’s SIPapproval process). Moreover, because the Guidance is final, 

and because the issue raised by NRDC is purely legal, the 

question before us is fit for judicial review. See Cement Kiln 

Recycling Coal. v. EPA, 493 F.3d 207, 215 (D.C. Cir. 2007) 

(“[A] purely legal claim in the context of a facial challenge is 

presumptively reviewable.” (internal quotations marks and 

ellipses omitted)); see also Abbott Labs., 387 U.S. at 149 

(describing the fitness requirement). And because “Congress 

has emphatically declared a preference for immediate review” 

with respect to Clean Air Act rulemaking, we have no need to

consider the ripeness test’s second element, namely, the 

hardship to the parties of withholding review. Cement Kiln 

Recycling Coal., 493 F.3d at 215; see also Natural Res. Def. 

Council v. EPA, 22 F.3d 1125, 1133 (D.C. Cir. 1994) (finding 

such congressional intent in the sixty day time limit in the 

Clean Air Act judicial review provision—the same provision 

governing review in this case—and concluding, therefore, that 

the court need not consider hardship).

III. 

Given that the Guidance document changed the law, the 

first merits question—whether the Guidance is a legislative 

rule that required notice and comment—is easy. See 5 U.S.C. 

§ 553 (requiring that legislative rules, but not policy 

statements or interpretive rules, be issued only after notice 

and comment). To begin with, because the Guidance binds 

EPA regional directors, it cannot, as EPA claims, be 
17

considered a mere statement of policy; it is a rule. Syncor Int’l 

Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (“[P]olicy 

statements are binding on neither the public nor the agency.” 

(internal citation omitted)); see also Cement Kiln Recycling 

Coal., 493 F.3d at 226 & n.14 (finding that the inquiries into 

whether the agency action was final and whether the agency 

action was a rule were essentially the same). Moreover, 

contrary to EPA’s alternative argument, this rule is not 

interpretive; it is legislative. As we explained above, nothing 

in the statute, prior regulations, or case law authorizes EPA to 

accept alternatives to section 185. Likewise, nothing prior to 

the Guidance entitled a state to have EPA evaluate a proposed 

alternative for equivalency rather than reject it outright. 

Accordingly, the Guidance qualifies as a legislative rule that 

EPA had no authority to issue without notice and comment. 

See Am. Mining Cong. v. Mine Safety & Health Admin., 995 

F.2d 1106, 1112 (D.C. Cir. 1993) (stating that where “in the 

absence of the rule there would not be an adequate legislative 

basis for enforcement action or other agency action to confer 

benefits or ensure the performance of duties,” the rule is 

legislative). 

Having concluded that EPA issued the Guidance in 

violation of the Administrative Procedure Act’s notice and 

comment requirement, we could simply vacate and end this 

opinion. NRDC, however, urges us to resolve its substantive 

claims, arguing that “a ruling on these questions is in the 

interest of judicial and administrative economies.” Pet’r’s Br. 

26. Our case law provides little direction on whether, having 

determined to vacate on procedural grounds, we should 

nonetheless address substantive claims. Compare Sprint Corp. 

v. FCC, 315 F.3d 369, 377 (D.C. Cir. 2003) (remanding 

without reaching substantive claims), and Syncor Int’l Corp., 

127 F.3d at 96 (same), with Air Transp. Ass’n of Am. v. FAA, 

169 F.3d 1, 4–6, 8 (D.C. Cir. 1999) (reaching statutory claims 
18

but declining to evaluate arbitrary and capricious challenges), 

Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier 

Safety Admin., 494 F.3d 188, 206 (D.C. Cir. 2007) (vacating a 

portion of a rule both because agency failed to provide an 

opportunity for comment and because agency failed to 

provide adequate explanation), and Ala. Power Co. v. FERC, 

160 F.3d 7, 11 (D.C. Cir. 1998) (finding it appropriate to 

proceed to petitioner’s argument that agency lacked authority 

to take challenged action after having found that agency failed 

to follow required procedure in taking that action).

In deciding how to proceed here, we keep in mind two 

competing interests. On the one hand, we must avoid 

prejudging the notice and comment process, the very purpose 

of which is to give interested parties the opportunity to 

participate in rulemaking and to ensure that the agency has 

before it all relevant information. MCI Telecomms. Corp. v. 

FCC, 57 F.3d 1136, 1140–41 (D.C. Cir. 1995). On the other 

hand, were we to vacate the Guidance without passing on the 

validity of the two alternatives, we could exacerbate the very 

delay that is injuring NRDC’s members.

Evaluating the program alternative in light of these 

considerations, we believe that the interest in preserving the 

integrity of the notice and comment process strongly 

outweighs any concern about delay. Because neither the 

statute nor our case law obviously precludes that alternative, 

we believe that by weighing in now we would unfairly 

prejudge any future notice and comment process. 

The attainment alternative presents a very different 

situation. Because it violates the statute’s plain language and 

our precedent, nothing would be gained by postponing a 

decision on the merits. Indeed, doing so would exacerbate the 

delay that is harming NRDC.
19

We begin with the statute. Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) 

(“First, always, is the question whether Congress has directly 

spoken to the precise question at issue.”). Section 172(e)’s 

plain language requires that any alternative be “not less 

stringent than applicable controls.” Recall that under the 

attainment alternative, an area need achieve only one or the 

other of the two NAAQS, meaning that an area in attainment 

of the 8-hour standard may treat its 8-hour implementation 

plan as an alternative to section 185 fees for 1-hour 

nonattainment. Although it is theoretically possible that 

controls in place to meet the 8-hour standard in a particular 

region could be equivalent to the section 185 penalties under 

the 1-hour standard, EPA does not purport to draw such a 

conclusion. Instead, EPA equates the purpose of retaining 

section 185 as an anti-backsliding measure (to achieve 

attainment) with the purpose of 8-hour attainment controls (to 

achieve attainment). But it ignores the fact that to satisfy 

section 172(e), the alternative must be “not less stringent” 

than the applicable control required to attain the superseded 

standard. In other words, those two attainments are of 

different standards.

The attainment alternative also exceeds several of the 

limits to EPA’s gapfilling discretion that we identified in 

South Coast. See Sierra Club v. EPA, 479 F.3d 875, 878, 880 

(D.C. Cir. 2007) (per curiam) (explaining that where EPA 

violates “the Clean Air Act’s plain language as interpreted by 

[our precedent]” that is “ ‘the end of the matter’ ” (quoting 

Chevron, 467 U.S. at 842)). First, we held that applicable 

controls “must be enforced under the one-hour NAAQS.” S. 

Coast, 472 F.3d at 903. Expressly contradicting that directive, 

the attainment alternative requires enforcement of section 185 

in only a subset of the 1-hour nonattainment regions—those 
20

also in nonattainment of the 8-hour standard. Second, we 

explained that the purpose of maintaining “applicable 

controls” under the 1-hour standard was not to achieve 

attainment of the new standard, but rather to prevent 

backsliding from the old standard. Id. at 900 (“Considered as 

a whole, the Act reflects Congress’s intent that air quality 

should be improved until safe and never allowed to retreat 

thereafter. Even if EPA set requirements that proved too 

stringent and unnecessary to protect public health, EPA was 

forbidden from releasing states from these burdens.”). In other 

words, the Act creates a one-way ratchet, “plac[ing] states 

onto a one-way street whose only outlet is attainment” of the 

NAAQS—even NAAQS EPA has subsequently replaced. Id.

Because the attainment alternative allows violations of the 1-

hour standard to continue, it makes the ratchet two-way—a 

clear violation of the statute. Finally, we rejected EPA’s 

argument that because it would no longer be making 

attainment findings under the 1-hour standard, it could refrain 

from enforcing section 185 on regions in severe and extreme 

nonattainment of that standard. Repeating this argument here, 

EPA tells us that because it “no longer promulgates 

redesignations for the 1-hour standard because that standard 

has been revoked . . . relief from the 1-hour fee program 

requirements under the terms of the statute is an impossibility, 

since the conditions the statute envisioned for relieving an 

area of its fee program obligation no longer can exist.” Fee 

Program Guidance at 4. In South Coast, however, we 

explained that “section 172(e) does not condition its strict 

distaste for backsliding on EPA’s determinations of 

expediency; EPA must determine its procedures after it has 

identified what findings must be made under the Act.” 472 

F.3d at 903. The same is true here. 

In concluding that EPA has once again “failed to heed the 

restrictions on its discretion set forth in the [Clean Air] Act,” 
21

S. Coast, 472 F.3d at 886, we recognize that EPA believes “it 

would unfairly penalize sources in these areas to require that 

fees be paid after an area has attained the 8-hour standard due 

to permanent and enforceable emission reductions because the 

fees were imposed due to a failure to meet the applicable 

attainment deadline for the 1-hour standard, not any failure to 

achieve the now applicable 8-hour standard by its attainment 

date.” Fee Program Guidance at 4. But as we have said 

before, “[i]f the Environmental Protection Agency disagrees 

with the Clean Air Acts’ requirements . . . , it should take its 

concerns to Congress. . . . In the meantime, it must obey the 

Clean Air Act as written by Congress and interpreted by this 

court.” Sierra Club, 479 F.3d at 884. 

IV.

For the foregoing reasons, we grant the petition for 

review and vacate the Guidance. 

So ordered.