California Communities Against Toxics v. EPA, No. 18-1085 (D.C. Cir. 2019)Annotate this Case
Petitioners challenged the Wehrum Memo, which declares that the plain language of section 112 of the Clean Air Act compels the conclusion that a source of toxic emissions classified as "major" can reclassify to an "area source," and thereby ease its regulatory burden, at any time after it limits its potential to emit to below the major source threshold.
The DC Circuit held that the Wehrum Memo was not final agency action and therefore dismissed the petitions for lack of subject matter jurisdiction under the Act. The court emphasized that, when assessing the nature of an agency action (including whether it is final), courts should resist the temptation to define the action by comparing it to superficially similar actions in the caselaw. The court held, instead, that courts should take as their NorthStar the unique constellation of statutes and regulations that govern the action at issue. The court also emphasized that, although all legislative rules are final, not all final rules are legislative, and the finality analysis is therefore distinct from the test for whether an agency action is a legislative rule.