ELR Citation: 49 ELR 20137
No(s). 18-1085 (D.C. Cir. Aug 20, 2019)

The D.C. Circuit dismissed a challenge to a 2018 EPA memo that interpreted §112 of the CAA to mean that major sources of toxic emissions could reclassify to area sources and thereby ease their regulatory obligations. California and environmental groups argued that EPA failed to provide notice and comment before issuing the memo, and that the agency's interpretation of CAA §112 was incorrect. EPA asserted the memo was not a final agency action and thus moved to dismiss. The court found that the memo was not a final agency action because it didn't advance what the Agency believed was a reasonable interpretation of §112, but rather advanced what it believed was the only permissible interpretation of the statute. Further, the memo did not have a single direct and appreciable legal consequence—it forecast EPA's definitive interpretation of §112, but neither EPA nor regulated sources could rely on it as independently authoritative in any proceedings, state permitting authorities faced no penalty or liability in ignoring it, and these authorities had clear statutory avenues by which to challenge a permitting decision that adopted the memo's reasoning and to seek judicial review if EPA failed to sustain their challenges. The court therefore dismissed the suit for lack of subject matter jurisdiction.