NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHEVRON U.S.A. INC., 

Petitioner, 

 v. 

U.S. ENVIRONMENTAL PROTECTION 

AGENCY, 

Respondent.

No. 21-71132 

MEMORANDUM*

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted August 17, 2023

Anchorage, Alaska

Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.

Chevron U.S.A. Inc. petitions for review of an April 2021 letter from the 

Environmental Protection Agency (“EPA”) to Chevron regarding section 328 of 

the Clean Air Act, 42 U.S.C. § 7627, and its implementing regulations, 40 C.F.R. 

pt. 55. In the April letter, which superseded a January 2021 letter, EPA stated that 

Chevron may be subject to the Clean Air Act when decommissioning oil and gas 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-71132 

drilling platforms located on the Outer Continental Shelf (“OCS”), even after 

Chevron plugs the wells and removes all emission-generating equipment from the

platforms (“Abandonment”), depending on any additional activity that Chevron 

conducts at the platform sites. Because the April letter was not final agency action, 

however, we lack jurisdiction to review any conclusions that EPA expressed in it. 

See 42 U.S.C. § 7607(b); S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 

571 (9th Cir. 2019). We therefore dismiss the petition.

Agency action is generally final when it (1) “mark[s] the consummation of 

the agency’s decisionmaking process” and (2) is action “by which rights or 

obligations have been determined, or from which legal consequences will flow.” 

U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597 (2016) (quoting 

Bennett v. Spear, 520 U.S. 154, 178 (1997)).

1. Chevron contends that the April letter was final agency action “because 

it repealed the January Letter, which was itself final action.” We assume for the 

sake of argument that the January letter was final agency action because in that 

letter EPA determined that it and the Ventura County Air Pollution Control District

(“APCD”) would lack jurisdiction under the Clean Air Act to regulate Chevron’s 

post-Abandonment decommissioning activity. See Navajo Nation v. U.S. Dep’t of 

the Interior, 819 F.3d 1084, 1091 (9th Cir. 2016). But it does not follow that the 

April letter was also final action just because it superseded the January letter.
3 21-71132 

While the January letter might have given Chevron an estoppel defense if 

EPA had brought an enforcement proceeding while the letter was in effect, see

Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 596 n.12 

(9th Cir. 2008), it contained no legally enforceable promise that EPA would not 

change its position. Cf. Hawkes, 578 U.S. at 598 (explaining that by regulation and 

agreement, an Army Corps of Engineers determination that a property does not 

contain waters of the United States prohibits the government from initiating 

enforcement proceedings under the Clean Water Act against the property owner for 

five years). Indeed, it is “common” for agencies to revise their conclusions. Id. 

Therefore, by superseding the January letter, EPA did not determine any rights or 

obligations or impose any legal consequences; it merely returned Chevron to a 

state of regulatory uncertainty.

2. Chevron also contends that “the April Letter standing alone satisfies 

both Bennett requirements.” As to the first requirement, we assume for the sake of 

argument that the April letter marked the consummation of EPA’s decisionmaking 

process regarding EPA’s two conclusions at issue here: that “additional activity 

conducted at the site or equipment used to dismantle the Platforms . . . may be 

classified as an ‘OCS source’ under certain conditions” (the “jurisdictional 

conclusion”); and that the Ventura County APCD “is the appropriate authority” to 

determine whether a permit is needed after considering “detailed information . . . 
4 21-71132 

about Chevron’s proposed decommissioning activities” and “consult[ing] with 

[EPA]” (the “delegation conclusion”).

As to the second Bennett requirement, EPA’s jurisdictional conclusion did 

not determine any rights or obligations or impose any legal consequences because 

it remains unsettled whether Chevron’s later-stage decommissioning activity will 

be subject to section 328 and require a permit. Although EPA “encourage[d]” 

Chevron to provide information to the Ventura County APCD, Chevron has no 

obligation to do so or even to seek further agency guidance regarding when it will 

no longer need permits. And it remains uncertain whether Chevron’s site-specific 

plans will require permits for the equipment and activity. EPA’s jurisdictional 

conclusion is thus analogous to a preliminary jurisdictional determination under 

the Clean Water Act, which “merely advise[s] a property owner ‘that there may be 

waters of the United States on a parcel’” and does not constitute final agency 

action. Hawkes, 578 U.S. at 595 (quoting 33 C.F.R. § 331.2).

EPA’s delegation conclusion did not “fix some legal relationship as a 

consummation of the administrative process.” Or. Nat. Desert Ass’n v. U.S. Forest 

Serv., 465 F.3d 977, 987 (9th Cir. 2006) (quoting Ukiah Valley Med. Ctr. v. FTC, 

911 F.2d 261, 264 (9th Cir. 1990)). Although an agency’s change in delegation 

policy can be a final, appealable decision, see Assiniboine & Sioux Tribes of Fort 

Peck Indian Rsrv. v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 789–90 (9th 
5 21-71132 

Cir. 1986), EPA’s restatement of its delegation policy lacks finality. The April 

letter did not alter the existing 1994 delegation agreement between EPA and the 

Ventura County APCD. EPA merely explained that under that agreement, the 

Ventura County APCD makes permitting decisions after consulting with EPA 

about how to interpret section 328 and its regulations. See S.F. Herring Ass’n, 946 

F.3d at 581 (acknowledging that “opinions restating the law” do not satisfy the 

second Bennett requirement).

DISMISSED.