United States Court of Appeals, District of Columbia Circuit
National Environmental Development Association's Clean Air Project, Petitioner
Environmental Protection Agency, Respondent
April 2, 2018
Petitions for Review of Amendments to Regulations Promulgated
by the United States Environmental Protection Agency
Allison D. Wood and Shannon S. Broome argued the cause for
petitioners. With them on the briefs were Felicia H. Barnes,
Leslie Sue Ritts, and Charles H. Knauss. Stacy R. Linden
entered an appearance.
J. Doyle, Attorney, U.S. Department of Justice, argued the
cause for respondent. With him on the brief were Jeffrey H.
Wood, Acting Assistant Attorney General, and Carol S. Holmes,
Attorney Advisor, U.S. Environmental Protection Agency.
Before: Garland, Chief Judge, and Edwards and Silberman,
Senior Circuit Judges.
EDWARDS, SENIOR CIRCUIT JUDGE.
case involves a challenge by Petitioners National
Environmental Development Association's Clean Air
Project, American Petroleum Institute, and Air Permitting
Forum ("Petitioners") to Amendments to Regional
Consistency Regulations ("Amended Regulations"), 40
C.F.R. §§ 56.3-56.5 (2017), adopted by the
Environmental Protection Agency ("EPA") pursuant to
§ 7601 of the Clean Air Act ("Act"), 42 U.S.C.
§ 7601. The Amended Regulations were issued in response
to this court's decision in National Environmental
Development Association's Clean Air Project v. EPA
(NEDACAP I), 752 F.3d 999 (D.C. Cir. 2014).
I arose after the Sixth Circuit issued Summit
Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012). In
Summit, EPA had in force regulations adopted
pursuant to the Act concerning "major sources" of
pollution. The Act requires an operator of a "major
source" of pollution to obtain a permit for a fixed
term. 42 U.S.C. § 7661a(a). Under EPA regulations,
multiple pollutant-emitting activities are treated as a
single stationary source if they are, inter alia,
"adjacent." 40 C.F.R. § 71.2; id.
§ 52.21(b)(5)-(6). EPA had determined whether facilities
were "adjacent" on the basis of the functional
interrelationships between the facilities, and not simply the
physical distance separating them. In Summit,
however, the Sixth Circuit vacated an EPA determination that
a natural gas plant and associated wells were one
"source" for the purpose of permitting under the
took exception to the Summit decision because it
effectively overturned a nationally applicable EPA policy. In
December 2012, EPA issued a Directive to the Regional Air
Directors of each of the ten EPA regions stating that,
[o]utside the [Sixth] Circuit, at this time, the EPA does not
intend to change its longstanding practice of considering
interrelatedness in the EPA permitting actions in other
jurisdictions. In permitting actions occurring outside of the
[Sixth] Circuit, the EPA will continue to make source
determinations on a case-by-case basis using the
[agency's] three factor test.
NEDACAP I, 752 F.3d at 1003. One of the Petitioners
here filed suit in this court challenging EPA's
Summit Directive. The petitioner argued that by
establishing inconsistent permit criteria applicable to
different parts of the country, the Summit Directive
violated the Clean Air Act and EPA regulations. We granted
the petition for review, holding that the Summit
Directive could not be squared with EPA's regulations.
Id. We did not decide whether the Summit
Directive also contravened the requirements of the Clean Air
immediately after the decision in NEDACAP I was
issued, EPA instituted rule making to amend the old Regional
Consistency Regulations. In August 2016, EPA issued the
Amended Regulations that are at issue in this case. To
address the Summit issue, the Amended Regulations
make it clear that
only the decisions of the U.S. Supreme Court and decisions of
the U.S. Court of Appeals for the D.C. Circuit Court that
arise from challenges to "nationally applicable
regulations . . . or final action, " as discussed in
Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply
40 C.F.R. § 56.3(d).
Petitioners challenge the Amended Regulations principally on
the ground that, under 42 U.S.C. § 7601(a), EPA is
required to implement the Act uniformly nationwide and
establish mechanisms for resolving judicially created
inconsistencies. Petitioners' position is difficult to
comprehend, however. For example, if the Sixth Circuit issues
a decision that is contrary to EPA national policy, as
happened in Summit, Petitioners contend that the
agency cannot follow the approach announced in the
Summit Directive. Does that mean that EPA must apply
the Sixth Circuit decision in all regions? The statute does
not require this. And if the Seventh Circuit subsequently
issues a judgment that is at odds with the Sixth Circuit
decision, would EPA be required to change its position again?
Petitioners offer no viable answers.
the Act, the D.C. Circuit has jurisdiction to hear petitions
for review of "any . . . nationally applicable
regulations promulgated, or final action taken" under
the Act, as well as any other final agency action that is,
inter alia, "based on a determination of
nationwide scope or effect." 42 U.S.C. §
7607(b)(1). The Act assigns all other petitions for review -
including most challenges to "any . . . final action . .
. which is locally or regionally applicable" - to
"the United States Court of Appeals for the appropriate
circuit." Id. Under this statutory scheme, it
is hardly surprising that judicial review of EPA actions
sometimes results in circuit court rulings that are
inconsistent with other circuit court rulings applicable to
different EPA regions. As we explain below, the Amended
Regulations reflect permissible and sensible solutions to
issues emanating from intercircuit conflicts and agency
nonacquiescence. We therefore defer to EPA's reasonable
construction of the statute and deny the petitions for
run by an Administrator, whose office is located in
Washington, D.C. The agency also has ten regional offices,
each of which is responsible for administering agency
programs within the states in a designated region. "The
Administrator is authorized to prescribe such regulations as
are necessary to carry out his functions under [the Act] . .
. [and] may delegate to any officer or employee of the
Environmental Protection Agency such of his powers and duties
under [the Act], except the making of regulations subject to
section 7607(d) of this title, as he may deem necessary or
expedient." 42 U.S.C. § 7601(a)(1). In addition,
the Act requires the Administrator to "promulgate
regulations establishing general applicable procedures and
policies for regional officers and employees (including the
Regional Administrator) to follow in carrying out a
delegation." Id. § 7601(a)(2).
also provides that regulations with respect to delegations
under § 7601(a)(1) must be designed
(A) to assure fairness and uniformity in the criteria,
procedures, and policies applied by the various regions in
implementing and enforcing the chapter;
. . . and
(C) to provide a mechanism for identifying and standardizing
inconsistent or varying criteria, procedures, and policies
being employed by such officers and employees in implementing
and enforcing the chapter.
Id. § 7601(a)(2). Over the years, EPA
Administrators have made many such delegations to facilitate
noted above, judicial review of EPA actions is bifurcated
between petitions for review that must be filed in the United
States Court of Appeals for the D.C. Circuit and petitions
that may be filed in the regional circuit courts. The Act
A petition for review of action of the Administrator in
promulgating any . . . nationally applicable regulations
promulgated, or final action taken, by the Administrator . .
. may be filed only in the United States Court of Appeals for
the District of Columbia. A petition for review of the
Administrator's action . . . which is locally or
regionally applicable may be filed only in the United States
Court of Appeals for the appropriate circuit. Notwithstanding
the preceding sentence a petition for review of any action
referred to in such sentence may be filed only in the United
States Court of Appeals for the District of Columbia if such
action is based on a determination of nationwide scope or
effect and if in taking such action the Administrator finds
and publishes that such action is based on such a
Id. § 7607(b)(1); see also Dalton Trucking,
Inc. v. EPA, 808 F.3d 875, 878-80 (D.C. Cir. 2015)
(discussing the jurisdiction and venue provisions under the
Clean Air Act). The Petitioners acknowledge that this
statutory scheme "creates the possibility of
geographically inconsistent judicial decisions on [Act]
issues, " because different circuits may reach different
results on the same question. Pet'rs' Br. 22.
outlined in the introduction to this opinion, the dispute in
this case stems from the Sixth Circuit's decision in
Summit. That case resolved a challenge to EPA's
interpretation of the word "adjacent, " an
interpretation the Sixth Circuit rejected. 690 F.3d at 735.
EPA then issued the aforementioned Summit Directive
in which the agency made it clear that it would not follow
Summit in EPA regions outside of the Sixth Circuit.
One of the Petitioners here challenged the Summit
Directive in this court in NEDACAP I, arguing that
the directive violated EPA's consistency obligations
under both § 7601(a)(2) and the agency's
then-effective regulations. 752 F.3d at 1003.
consistency regulations that were at issue in NEDACAP
I read, ...