 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 7, 2019                 Decided April 7, 2020

                         No. 18-1167

                       SIERRA CLUB,
                        PETITIONER

                             v.

    ENVIRONMENTAL PROTECTION AGENCY AND ANDREW
     WHEELER, ADMINISTRATOR, U.S. ENVIRONMENTAL
                PROTECTION AGENCY,
                    RESPONDENTS

              AIR PERMITTING FORUM, ET AL.,
                      INTERVENORS


                  On Petition for Review
            of an Administration Action by the
      United States Environmental Protection Agency


    Gordon Sommers argued the cause for petitioner. With
him on the briefs was Seth L. Johnson. David S. Baron
entered an appearance.

      Brian H. Lynk, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Jeffrey Bossert Clark, Assistant Attorney General, Jonathan
                              2
D. Brightbill, Deputy Assistant Attorney General, Brian L.
Doster, Assistant General Counsel, U.S. Environmental
Protection Agency, and Mark M. Kataoka, Attorney.

    Makram B. Jaber, Lucinda Minton Langworthy, Andrew
D. Knudsen, Shannon S. Broome, Charles H. Knauss, Steven
P. Lehotsky, Michael B. Schon, Leslie A. Hulse, and Richard
S. Moskowitz were on the brief for intervenors-respondents.

     Megan H. Berge, Scott A. Keller, and Jared R. Wigginton
were on the brief for amicus curiae American Petroleum
Institute in support of respondents U.S. Environmental
Protection Agency, et al., and denial of petition for review.

   Before: GARLAND and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge WILKINS.

    Concurring opinion by Circuit Judge WILKINS.

    Concurring opinion by Senior Circuit Judge RANDOLPH.

      WILKINS, Circuit Judge: This case again presents the
seemingly labyrinthine question of whether an agency action
is final for the purposes of judicial review. The agency action
before us is a document titled “Guidance on Significant
Impact Levels for Ozone and Fine Particles in the Prevention
of Significant Deterioration Permitting Program” (the “SILs
Guidance”) published on April 17, 2018 by the U.S.
Environmental Protection Agency (“EPA”), authored by Peter
Tsirigotis, Director of EPA’s Office of Air Quality Planning
and Standards.
                               3
     Petitioner Sierra Club contends that we can and should
review the SILs Guidance because it is final agency action
and prudentially ripe. Respondent EPA counters that this
Court lacks jurisdiction over the SILs Guidance because it is
not final agency action, and alternatively, that we should not
review it because it is not prudentially ripe. Although both
parties advance arguments on the merits of EPA’s
interpretation of 42 U.S.C. § 7475(a)(3) in the SILs Guidance,
for the reasons detailed herein, we do not reach those issues.
We hold that the SILs Guidance is not final agency action
subject to review by this Court under the Clean Air Act
(“CAA”) as it does not determine rights or obligations and
does not effectuate direct or appreciable legal consequences
as understood by the finality inquiry. See 42 U.S.C. §
7607(b)(1). As such, we dismiss the petition for lack of
subject-matter jurisdiction under the CAA. We express no
opinion as to ripeness or the merits.

                              I.

     We turn first to the CAA provisions and EPA regulations
that govern the SILs Guidance.

     Congress enacted the Clean Air Amendments of the CAA
in 1970 as “a comprehensive national program that made the
States and the Federal Government partners in the struggle
against air pollution.” Gen. Motors Corp. v. United States,
496 U.S. 530, 532 (1990). The amendments require EPA to
promulgate national ambient air quality standards
(“NAAQS”) that limit the concentration of certain pollutants
allowable in the ambient air people breathe. See 42 U.S.C. §
7409(a)(1). For each pollutant, primary and secondary
standards must be set at levels “requisite to protect the public
health” and “the public welfare,” respectively. Id. § 7409(b).
Each state develops its own state implementation plan (“SIP”)
                                  4
containing emission limits and other control measures to
enforce the NAAQS within the state. Id. §§ 7407(a),
7410(a)(1)-(2).

     In 1977, Congress amended the CAA to create the
Prevention of Significant Deterioration (“PSD”) program.
See 42 U.S.C. § 7470-79. The PSD program requires major
emitting facilities 1 to obtain a permit “setting forth emission
limitations” for a facility prior to construction. 42 U.S.C.
§ 7475(a)(1); see Ala. Power Co. v. Costle, 636 F.2d 323, 378
(D.C. Cir. 1979). The program requires any applicant for a
PSD permit to demonstrate that new emissions from the
proposed project “will not cause, or contribute to, air
pollution in excess of any (A) maximum allowable increase or
maximum allowable concentration for any pollutant in any
area to which this part applies more than one time per year,
[or] (B) national ambient air quality standard in any air
quality control region[.]” 42 U.S.C. § 7475(a)(3). The
“maximum allowable increase” of an air pollutant is a
marginal level of increase above the defined baseline
concentration and is known as the “increment.” 75 Fed. Reg.
64,864, 64,868 (Oct. 20, 2010).

     Although the permitting process is primarily
implemented at the state level, with states issuing
preconstruction permits in accordance with their SIPs and
federal minimum standards, see 42 U.S.C. § 7410(a)(1)-(2),
(l), section 7475(e)(3) authorizes EPA to promulgate
regulations regarding the ambient air quality analysis required
under the permit application review. Id. § 7475(e)(3)(D).

1
  A “major emitting facility” is defined as any stationary source that
emits or has the potential to emit 100 or 250 tons per year
(depending on the type of source) of any air pollutant. 42 U.S.C.
§ 7479(l); see also id. § 7479(2)(C) (governing modifications).
                               5
Pursuant to this power, in 1987 EPA promulgated a regulation
outlining a set of values for states to use in determining what
level of emissions does “cause or contribute to” a violation
under section 7475(a)(3). See 40 C.F.R. § 51.165(b)(2); 52
Fed. Reg. 24,672, 24,713 (July 1, 1987). The air quality
concentration values specified in the regulation have become
known as “significant impact levels,” or SILs, when used as
part of an air quality demonstration in a permit application.
See SILs Guidance at 9.

     In 2010, EPA attempted to codify these uses of SILs for
certain harmful air pollutants, including fine particulate matter
(“PM2.5”), by amending paragraph (k)(2) of its regulations at
40 C.F.R. §§ 51.166 and 52.21 and by incorporating PM2.5
values into its preexisting table of significance values at 40
C.F.R. § 51.165(b)(2). See 75 Fed. Reg. at 64,864, 64,886,
64,902. However, after a petition for review was filed, EPA
asked this Court to vacate and remand the (k)(2) paragraphs
of both regulations so EPA could address flaws it had
recognized during the course of litigation. See Sierra Club v.
EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). In 2013 the
Court vacated the (k)(2) paragraphs, stating that, on remand,
“the EPA [might] promulgate regulations that do not include
SILs or do include SILs that do not allow the construction or
modification of a source to evade the requirement of the Act
as do the SILs in the current rule.” Id. at 464.

     Following the remand, EPA began developing a new rule
to address the flaws identified in the 2010 rulemaking, and on
August 1, 2016, posted online and sought informal public
comment on a new draft of guidance on the use of SILs. On
April 17, 2018, EPA issued the SILs Guidance at issue in this
case with revisions made in response to the public comments.
The SILs Guidance expressed EPA’s view that permitting
authorities have the discretion to find sources applying for
                               6
permits and that have individually small impacts exempt from
the demonstration required by section 7475(a)(3). SILs
Guidance at 17. Based on statistical analyses and technical
approaches, the Guidance outlined what the agency believes
are individually small impacts by identifying recommended,
non-binding SIL values for the PM2.5 and ozone NAAQS,
and for the PM2.5 increments. Id. at 15-17. The SILs
Guidance then explained that if a proposed source’s projected
maximum impact is below the corresponding SIL value, that
“generally may be considered to be a sufficient demonstration
that the proposed source will not cause or contribute to a
violation of the NAAQS.” Id. at 17. Permitting authorities
may use the nationally applicable SILs established in the SILs
Guidance, but also “have discretion to develop their own SIL
values” using EPA’s methodology as a model and provided
the values are properly supported in the record for each
permitting action or decision in which they are used. Id. at 3.

     Essentially, rather than requiring every PSD applicant to
conduct a full cumulative impact analysis, if a preliminary
analysis shows “a proposed source’s maximum impact will be
below the corresponding SIL value,” EPA is open to a finding
by the state permitting authority that such an impact “will not
cause or contribute to a violation of the applicable NAAQS or
PSD increment.” Id. at 17. Furthermore, in what EPA refers
to as a “culpability analysis,” if a cumulative impact analysis
is done anyway and “predicts a NAAQS violation,” a source
whose contribution to the violation is less than the SIL for a
given pollutant may be considered “not culpable for” the
violation under the Guidance. Id. at 18. Permitting
authorities retain the ability to require additional information,
and have discretion to find that even if a proposed source’s
impact is below the relevant SIL value, there has not been a
sufficient demonstration that the “proposed source will not
cause or contribute to a violation.” Id. The SILs Guidance
                               7
also requires that “[t]he case-by-case use of SIL values should
be justified in the record for each permit,” and that the record
for any permitting decision using a SIL recommended in the
Guidance should fully incorporate the information contained
in the Guidance, including the technical and legal documents
used in the permitting process. Id. at 19.

     In the SILs Guidance, EPA described the document as
the first of a two-step approach, explaining it hoped to “first
obtain experience with the application of these values in the
permitting program before establishing a generally applicable
rule.” Id. at 2. EPA explained that after seeing how
“permitting authorities use their discretion to apply and justify
the application of the SIL values identified” in the Guidance,
the agency would “assess, refine and, as appropriate, codify
SIL values and specific applications of those values in a
future, potentially binding rulemaking.” Id. at 3.

                              II.

     Section 307(b)(1) of the Clean Air Act, titled
“Administrative proceedings and judicial review,” provides,
in relevant part:

       A petition for review of action of the
       Administrator in promulgating [certain
       enumerated nationally applicable actions], or
       any other nationally applicable regulations
       promulgated, or final action taken, by the
       Administrator under this chapter may be filed
       only in the United States Court of Appeals for
       the District of Columbia.

42 U.S.C. § 7607(b)(1).
                              8
      As the Supreme Court made clear in Harrison v. PPG
Industries, Inc., section 307(b)(1) is a “conferral of
jurisdiction upon the courts of appeals[.]” 446 U.S. 578, 593
(1980). It is also a venue provision that evinces Congress’
clear intent that “‘any nationally applicable regulations
promulgated by the Administrator under the [CAA can] be
reviewed only in the U.S. Court of Appeals for the District of
Columbia.’” Id. at 590 (quoting H.R. Rep. No. 95–294, pp.
323-324 (1977), which explains that the Committee agreed
with certain venue proposals of the Administrative
Conference of the United States also to this effect.); see also
41 Fed. Reg. 56,767, 57,768 (Dec. 30, 1976) (stating the
Administrative Conference’s view that “all such national
standards” under the CAA shall be reviewed “in the Court of
Appeals for the District of Columbia Circuit”). However, this
Court emphasized in Dalton Trucking v. EPA that “under
section 307(b)(1), subject matter jurisdiction and venue are
not coterminous.” 808 F.3d 875, 879 (D.C. Cir. 2015). That
is, just because an agency action may have national
applicability does not mean it is final such that it can be
reviewed immediately by this Court – and vice versa.

     Before explaining why the SILs Guidance is not final
agency action, we pause to reiterate the proper test for
finality.

     In United States Army Corps of Engineers v. Hawkes Co.,
136 S. Ct. 1807 (2016), the Supreme Court affirmed that the
familiar two-prong test laid out in Bennett v. Spear, 520 U.S.
154 (1997), “remains finality’s touchstone.” See also Cal.
Cmtys. Against Toxics, 934 F.3d at 635 (citations omitted).
Under this test, first, the action must “mark the consummation
of the agency’s decisionmaking process . . . . And second, the
action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.”
                               9
Bennett, 520 U.S. at 177-78 (citations and internal quotation
marks omitted). Each prong of Bennett “must be satisfied
independently for agency action to be final[.]” Soundboard
Ass’n, v. FTC, 888 F.3d 1261, 1267 (D.C. Cir 2018).
Additionally, “when assessing the nature of an agency action,
. . . courts should resist the temptation to define the action by
comparing it to superficially similar actions in the caselaw.
Rather, courts should take as their NorthStar the unique
constellation of statutes and regulations that govern the action
at issue.” Cal. Cmtys. Against Toxics, 934 F.3d at 631.

     Addressing prong one, Petitioner argues the agency’s
“intention to consider subsequently amending in the Federal
Register the decisions it already definitively made in the SILs
Guidance does not render those decisions non-final[.]” Reply
Br. at 5 (citing Nat’l Envtl. Dev. Ass’n’s Clean Air Project v.
EPA, 752 F.3d 999, 1006 (D.C. Cir. 2014)). They point out
the agency “took comments, made revisions, and produced a
definitive interpretation of the statute,” arguing those actions
marked the consummation of EPA’s decisionmaking. Id.
(citing Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478-
79 (2001)).

      Respondent argues the SILs Guidance is not the
consummation of the agency’s process, pointing to the
document’s disclaimer that it is “neither a final determination
nor a binding regulation.” SILs Guidance at 19. EPA argues
the Guidance explicitly states that its issuance is only phase
one of a two-step process the agency will be undertaking in
response to the Court’s partial vacatur and remand of the 2010
rule. Id. at 2. Finally, EPA points to its Fall 2018 regulatory
agenda, which states that the Guidance was published as a
first step and that “[b]ased on the information gathered from
the implementation of [the SILs Guidance] by the permitting
                              10
authorities, EPA will complete a rulemaking action, as
appropriate.” J.A. 874.

     The parties also disagree whether the SILs Guidance has
“direct and appreciable legal consequences” as required under
prong two of Bennett. See 520 U.S. at 178. Petitioner argues
the Guidance has “immediate consequences” as it allows
sources to receive permits “even where it is demonstrated
they will cause, or contribute to, a violation of the NAAQS or
increments – so long as their impact is below a SIL.” Pet’r’s
Br. at 2, 4. They also argue the SILs Guidance resolves the
“purely legal” question of whether permitting authorities are
authorized to exempt small air quality impacts under 42
U.S.C. § 7475(a)(3) and expresses EPA’s definitive position
on this question of statutory interpretation. Id. at 3 (internal
citations and quotations omitted)). They assert the SILs
Guidance has an “immediate and significant” effect on how
permitting authorities interpret the PSD permitting
requirements and will “burden Sierra Club members with
additional pollution exposure.” Id. (citing CSI Aviation
Servs., Inc. v. U.S. Dep’t of Transp., 637 F.3d 408, 412 (D.C.
Cir. 2011)). Finally, Petitioners point to statements by one of
their standing declarants asserting that permitting authorities
have begun relying on the proposed and final SILs Guidance.
Id. (citing Declaration of Mary Anne Hitt at ¶ 22).

    EPA counters that the SILs Guidance is not final agency
action as it “does not create a new and binding legal regime.”
EPA Br. at 29. They argue the SILs Guidance does not
represent a departure from a prior legal approach as “SILs
have been used for decades, consistent with EPA regulations.”
Id. at 23. And that even if the SILs Guidance does break new
ground, the finality of a legal interpretation does not turn
solely on whether it is “new” but whether permitting
authorities are “required to adopt or implement the
                               11
interpretation.” Id. at 28. Second, they argue “the Guidance
is not binding in any particular permit application review, has
no legal effect, and does not substitute for or reduce”
individual permitting authorities’ discretion. Id. at 24. They
argue the document merely provides technical and legal
advice and that authorities retain “discretion to use other
values that may be justified separately,” including values
lower than those EPA recommends; or they may elect not to
use SILs at all. Id. at 30 (quoting SILs Guidance at 19-20).
In response to the Petitioner’s specific examples in the Hitt
Declaration, EPA responds that “Petitioner does not show that
the Guidance is written or has been applied in a binding
manner,” id. at 27, and the fact that some permitting
authorities may have chosen to use the Guidance does not
establish that it is legally binding overall, id. at 32. Finally,
they argue the SILs Guidance does not authorize a
determination that any specific proposed source will not cause
or contribute to a violation because the legal requirements of
the CAA and other EPA regulations, including the
“demonstration” requirement of 42 U.S.C. § 7475(a)(3),
remain wholly unchanged. Id. at 27.

     Whether an agency action has “direct and appreciable
legal consequences” under the second prong of Bennett is a
“‘pragmatic’” inquiry. Hawkes, 136 S. Ct. at 1815 (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). And as
we recently emphasized, courts should “make prong-two
determinations based on the concrete consequences an agency
action has or does not have as a result of the specific statutes
and regulations that govern it.” Cal. Cmtys. Against Toxics,
934 F.3d at 637. When deciding whether guidance statements
meet prong two, this Court has considered factors including:
(1) “the actual legal effect (or lack thereof) of the agency
action in question on regulated entities”; (2) “the agency’s
characterization of the guidance”; and (3) “whether the
                               12
agency has applied the guidance as if it were binding on
regulated parties.” National Mining Ass’n v. McCarthy, 758
F.3d 243, 253 (D.C. Cir. 2014).

     In Hawkes, the Court held, in part, that the agency
determination at issue had direct and appreciable legal
consequences (or actual legal effect) because if petitioners
failed to heed the determination they did so at the risk of
significant criminal and civil penalties under the statutory
regime. 136 S. Ct. at 1815. Hawkes relied on a long line of
cases illustrating a pragmatic approach to finality by focusing
on how agency pronouncements actually affect regulated
entities. Id. (citing Sackett v. EPA, 566 U.S. 120, 126 (2012)
(holding that the agency action at issue satisfied Bennett
prong two because it exposed petitioners to double penalties
in a future enforcement proceeding and limited their ability to
obtain a certain type of permit); Abbott Labs., 387 U.S. at 152
(holding that the action at issue had a “sufficiently direct and
immediate” impact on petitioners, such that judicial review
was appropriate, because noncompliance risked “serious
criminal and civil penalties”); Frozen Food Express v. United
States, 351 U.S. 40, 44 (1956) (same)).

     We have continued to affirm this approach, most recently
in Valero Energy Corporation v. EPA, 927 F.3d 532 (D.C.
Cir. 2019) and California Communities, 934 F.3d at 637. In
Valero, we held, in part, that after analyzing the letter in
question under the relevant statutory regime (1) the guidance
imposed no obligations, prohibitions, or restrictions; (2) it put
no party to the choice between costly compliance and the risk
of a penalty of any sort; (3) EPA acknowledged at oral
argument that the guidance had no independent legal
authority; and (4) the relevant statute provided regulated
parties a mechanism by which to challenge any EPA action
                               13
that was premised on the statutory interpretation that the
guidance advanced. 927 F.3d at 536-39.

    In California Communities, we found, in part, that the
memo at issue was not final where (1) neither EPA nor
regulated sources could rely on it as independently
authoritative in any proceeding; (2) state permitting
authorities faced no penalty or liability of any sort in ignoring
it; and (3) state permitting authorities and regulatory
beneficiaries had clear avenues by which to challenge a
permitting decision adopting the reasoning of the memo. 934
F.3d at 638.

      Assessing the SILs Guidance under Hawkes and in
accordance with Valero and California Communities, we find
it is not final agency action. Given the specific nature of the
statutory regime, the SILs Guidance imposes no obligations,
prohibitions or restrictions on regulated entities, does not
subject them to new penalties or enforcement risks, preserves
the discretion of permitting authorities, requires any
permitting decision relying on the Guidance be supported
with a robust record, and does not prevent challenges to
individual permitting decisions. The SILs Guidance is not
sufficient to support a permitting decision – simply quoting
the SILs Guidance is not enough to justify a permitting
decision without more evidence in the record, including
technical and legal documents. See SILs Guidance at 19. It is
also not necessary for a permitting decision – permitting
authorities are free to completely ignore it. See id. at 19-20.
As such, we find the SILs Guidance does not result in “direct
and appreciable legal consequences” as required under prong
two of Bennett. See 520 U.S. at 178.

    Paramount in this decision is the amount of discretion
permitting authorities retain after publication of the SILs
                              14
Guidance. In Catawba County, this Court found an agency
memo nonfinal where it did not “impose binding duties on
states or the agency. . . . [but] merely clarifie[d] the states’
duties under the [CAA] and explain[ed] the process EPA
suggests,” noting those views were open to revision. 571
F.3d 20, 33-34 (D.C. Cir. 2009). Similarly, the SILs
Guidance imposes no obligations, prohibitions, or restrictions,
and “compels action by neither the recipient nor the agency.”
Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940,
944 (D.C. Cir. 2012); see also Valero, 927 F.3d at 536.
During this initial information-gathering phase, permitting
authorities can choose to reference the values outlined in the
SILs Guidance, to develop and justify their own SILs, or even
to ignore the Guidance entirely. See SILs Guidance at 19-21.
The SILs Guidance explicitly preserves state discretion
regarding what degree of modeling or analysis may be
necessary for each petition and does not require states to
review their programs or take any proactive action in
response. See SILs Guidance at 3. The states have not been
given “marching orders” and are not expected to “fall in line,”
see Appalachian Power Co., 208 F.3d 1015, 1023 (D.C. Cir.
2000) (finding guidance final where it required state
permitting authorities to search for deficiencies in existing
programs and to take action if any were found, id. at 1022),
but retain discretion to utilize the SILs Guidance or maintain
the status quo in their individual permitting programs.

     Petitioner also points to a line of cases which incorporate
the analysis of Ciba-Geigy, 801 F.2d 430 (D.C. Cir. 1986), a
ripeness case which this Court has described as
“complementary” to Bennett. Reckitt Benckiser, Inc. v.
E.P.A., 613 F.3d 1131, 1137 (D.C. Cir. 2010). These cases
focus on whether the agency action at issue (usually a
preenforcement letter threatening action if the regulated entity
does not change a certain behavior) has a practical effect on
                               15
regulated parties, even if the action itself has no formal legal
force. See, e.g., CSI Aviation Servs., Inc., 637 F.3d at 412
(concluding the agency action was final because it “imposed
an immediate and significant practical burden” by forcing the
company to choose between conforming to the agency’s
demand or facing civil and criminal penalties); Nat’l Ass’n of
Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005)
(“Finality resulting from the practical effect of an ostensibly
non-binding agency proclamation is a concept we have
recognized in the past.”); Clean Air Council v. Pruitt, 862
F.3d 1, 4, 7 (D.C. Cir. 2017) (finding a stay of portions of a
rule final agency action because it relieved regulated parties
of any obligation to comply with monitoring requirements,
eliminating the threat of civil penalties, citizens’ suits, fines,
and imprisonment for noncompliance). However, the SILs
Guidance is nonfinal even if we look to this line of cases and
considerations as it does not subject regulated entities to the
same level of practical consequences present in Ciba-Geigy or
CSI Aviation. See also Valero, 927 F.3d at 537 (“We need
not explore the potential tension between those lines of
decisions because the EPA document is nonfinal even if we
take into account its practical consequences.”).

      As in Valero, EPA is not using the SILs Guidance to
“flex[] its regulatory muscle” or to present regulated entities
with the “painful choice between costly compliance and the
risk of prosecution at an uncertain point in the future[.]” CSI
Aviation Servs., 637 F.3d at 412-13. Nor does the SILs
Guidance “impose obligations by chicanery – disclaiming
legal force and effect but nonetheless ‘read[ing] like a
ukase.’” Valero, 927 F.3d at 537 (quoting Appalachian
Power, 208 F.3d at 1023). The SILs Guidance by itself does
not expose any regulated entity to the possibility of an
enforcement action or to enhanced fines or penalties. See
Sackett, 566 U.S. at 126; see also National Mining Ass’n, 758
                              16
F.3d at 252 (holding that a guidance statement was not final
action, in part, because “[a]s a matter of law, state permitting
authorities . . . may ignore EPA’s . . . Guidance without facing
any legal consequences[]”). The document merely provides
guidance that permitting authorities may use on a “case-by-
case” basis. SILs Guidance at 19. As such, we find it does
not beget the same practical consequences as the targeted pre-
enforcement letters in CSI Aviation and Ciba-Geigy and is not
final agency action under prong two of Bennett.

    Since a finding that the second prong of Bennett is
lacking is enough to render an agency action non-final, we
need not reach Petitioner’s arguments under the first prong.
See Soundboard, 888 F.3d at 1267; see also Sw. Airlines Co.
v. U.S. Dep’t of Transp., 832 F.3d 270, 275 (D.C. Cir. 2016).
The         petition       is       hereby        dismissed.
     WILKINS, Circuit Judge, concurring: In order to prevent
a patchwork of regional interpretations of nationally
applicable agency actions, section 307(b)(1) of the CAA
Amendments of 1977 vested exclusive jurisdiction in the
Court of Appeals for the District of Columbia Circuit to
review all final EPA actions of nationwide consequence,
whether such action is pursuant to specifically enumerated
provisions of the CAA, or pursuant to “any other nationally
applicable regulations promulgated, or final action taken, by
the Administrator under [the Act].” Harrison v. PPG Indus.,
Inc., 446 U.S. 578, 590 (1980) (quoting 42 U.S.C.
§ 7607(b)(1) and citing H.R. 6161, 95th Cong., 1st Sess.
(1977)) (alteration in original). As we stated long ago, “[o]ur
jurisdiction extends to ‘any . . . nationally applicable . . . final
action taken by’ the EPA ‘Administrator.’” Appalachian
Power Co., 208 F.3d 1015, 1020 n.10 (D.C. Cir. 2000)
(quoting 42 U.S.C. § 7607(b)(1)) (emphasis added)
(alterations in original); see also Cal. Cmtys. Against Toxics v.
EPA, 934 F.3d 627, 634 (D.C. Cir. 2019) (stating section
307(b)(1) “confers jurisdiction . . . in this court for, inter alia,
final action of the Administrator that is ‘nationally
applicable.’” (quoting 42 U.S.C. § 7607(b)(1))); Alon Ref.
Krotz Springs, Inc. v. EPA, 936 F.3d 628, 642 (D.C. Cir.
2019). In contrast, the CAA Amendments confined the
jurisdiction of the regional courts of appeals to review of local
or regional actions, whether such action is pursuant to
specifically enumerated provisions of the CAA, or pursuant to
“any other final action of the Administrator under [the CAA]
which is locally or regionally applicable.” 42 U.S.C.
§ 7607(b)(1)); see also H.R. Rep. No. 95–294, at 323-24
(1977).
       There is no question here that the SILs Guidance is
“nationally applicable,” id. § 7607(b)(1), as the Guidance was
                              2
distributed for use nationwide, and it states “EPA believes
that the application of these SILs in the manner described
below would be sufficient in most situations for a permitting
authority to conclude that a proposed source will not cause or
contribute to a violation of . . . PSD increments,” SILs
Guidance at 3 (emphasis added). Furthermore, even though
its use is optional, the SILs Guidance was expressly
developed “to promote national consistency.” Id. at 13; see
also id. at 15 (“Having a national SIL value promotes
consistency in implementation and prevents possible
confusion or arbitrary choices that may arise with highly
localized SIL values . . . .”).

        The Sierra Club contends that the SILs Guidance
violates the CAA because it “allow[s] construction of a
proposed source if the source shows its individual air
pollution impact is less than a SIL, without looking at whether
a NAAQS or increment violation will actually occur or
worsen.” Pet’r’s Opening Br. at 20. We cannot reach that
argument today, because the SILs Guidance presents a
curious form of agency action – nationally applicable
guidance that is not final agency action at the time of
publication but that may be relied upon later to justify a
permitting decision, which is final agency action. But when
that future permitting decision is made, the question naturally
will arise – which court has jurisdiction to review it? The
answer of course depends upon the precise circumstances of
the permit and the challenge, but I write separately to point
out that if such review involves resolving a substantive
challenge to the validity of the SILs Guidance similar to the
one Sierra Club presses here, then review must occur in this
Court.

       The EPA is certainly free to make nationally
applicable policy, such as the SILs Guidance, via adjudication
                              3
of individual permits rather than in one fell swoop via a
rulemaking proceeding. While agencies usually promulgate
policies through binding guidance or regulations, it is long
settled that an agency may also choose to enact interpretations
of law or make administrative policy through adjudication.
See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 201-03
(1947); see also Hoopa Valley Tribe v. FERC, 629 F.3d 209,
212 (D.C. Cir. 2010) (upholding agency policy adopted in an
adjudication); NetworkIP, LLC v. FCC, 548 F.3d 116, 123
(D.C. Cir. 2008) (stating an agency may make “policy choices
through adjudication” and give the decision retroactive
effect). “Most norms that emerge from a rulemaking are
equally capable of emerging (legitimately) from an
adjudication, and accordingly agencies have very broad
discretion whether to proceed by way of adjudication or
rulemaking.” Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536
(D.C. Cir. 2007) (internal quotation marks and citations
omitted).

       Although administrative law in the adjudicative context
softens the formalism of strict stare decisis, an agency’s
adjudicative body engaged in policymaking must still adhere
to its precedent in deciding cases. See Hatch v. FERC, 654
F.2d 825, 834-35 (D.C. Cir. 1981). Presumptively bound by
precedent, an agency may, within the realm of its statutory
authority, change the established law and apply newly created
rules “in the course of an adjudication, so long as the agency
acts pursuant to delegated authority, adopts a permissible
construction of the statute, and adopts a rule that is not
arbitrary and capricious.” Consolidated Edison Co. of New
York, Inc. v. FERC, 315 F.3d 316, 323 (2003); see Hatch, 654
F.2d at 835-37; see also NAACP v. FCC, 682 F.2d 993, 998
(D.C. Cir. 1982). While eschewing a doctrine of binding
precedent, administrative law retains a balanced requirement
of consistency dictating that, in general, like circumstances
                               4
should be treated alike. See NLRB v. Wyman-Gordon Co.,
394 U.S. 759, 770-71 (Black, J., concurring) (“If the agency
decision reached under the adjudicatory power becomes a
precedent, it guides future conduct in much the same way as
though it were a new rule promulgated under the rule-making
power.”). Thus, an agency may not “depart from a prior
policy sub silentio or simply disregard rules that are still on
the books,” but it may change policy if such change is
permitted by statute and the agency articulates “good reasons”
for doing so. FCC. v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009).

        The Environmental Appeals Board (“EAB”) is the
agency body that could establish EPA policy with respect to
the SILs Guidance. Established by regulation in 1992, the
EAB creates a body of precedent upon which it, hearing
officers, EPA, and the regulated community rely. See 78 Fed.
Reg. 5281, 5284 (Jan. 25, 2013) (“Practitioners before the
[EAB] in permit appeals currently are guided by Board
precedent, standing orders of the Board, and the Board’s
Practice Manual.”); see also Stanley Abramson, et. al., 1 L. OF
ENVTL. PROT. § 9:106 (2019). Pursuant to that mission, the
EAB is tasked with, inter alia, discretionary review of
individual PSD permitting decisions.          See 40 C.F.R.
§ 124.19(a). In the over 40 states that implement the PSD
program in accordance with their approved SIPs, applicable
EPA regulations require notice, a comment period, and a
public hearing on applications for new sources of air
pollution. Id. §§ 124.10-.12. Upon final approval of an
application by a state permitting authority, participants in the
comment process may petition the EPA Administrator for
administrative review through the EAB. Id. § 124.19(a).
EAB decisions are final agency actions published in the
Federal Register, id. § 124.19(l); therefore review of EAB
decisions on “locally or regionally applicable” permit appeals
                              5
are heard by the appropriate regional court of appeals, 42
U.S.C. § 7607(b)(1), while review of “nationally applicable”
permit appeals must be heard in this Court, id. Because the
regulations allow a petitioner to challenge “any condition of
any [specified] permit decision,” 40 CFR § 124.19(a), which
the EAB has construed “to include . . . the permit decision in
its entirety, whether based on alleged substantive or
procedural defects,” 78 Fed. Reg. at 5284, the EAB could
potentially rule upon a substantive challenge to the SILs
Guidance similar to the one asserted here by the Sierra Club.

      Should an EAB decision pass on such a substantive
challenge to the SILs Guidance, review must be held in this
Court, since the SILs Guidance is by its nature nationally
applicable, EAB decisions are precedent for future parties and
regulated entities, and the EAB decision would be, at a
minimum, persuasive authority for every future permit
issuance in the nation. See Appalachian Power, 208 F.3d at
1021 n.10 (“Our jurisdiction extends to ‘any . . . nationally
applicable . . . final action taken by’ the EPA.” (quoting 42
U.S.C. § 7607(b)(1)) (alterations in original). As the Supreme
Court made clear in Harrison, Congress intended for
nationally applicable final agency action under the CAA to be
heard here, 446 U.S. at 590, and it would not make sense to
have various state courts or regional courts of appeals issue
potentially inconsistent rulings on substantive challenges to
the national SILs Guidance or review of permitting decisions
based upon the Guidance.

    And adjudication by the EAB is not the only forum in
which EPA might take nationally applicable final action with
respect to the SILs Guidance.         For instance, EPA’s
Administrator “may determine that [an] otherwise locally or
regionally applicable action has nationwide scope or effect
and publish his finding,” requiring review in this Court.
                              6
Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019)
(citing 42 U.S.C. § 7607(b)(1)). Additionally, although the
majority of PSD permitting decisions are made by the
relevant state authorities, in localities without PSD programs
in their state implementation plans, EPA itself manages the
PSD program and issues preconstruction permits. See
generally 40 C.F.R. § 52.21; Puerto Rican Cement Co. v.
EPA, 889 F.2d 292, 294 (1st Cir. 1989) (reviewing a PSD
preconstruction permit issued by EPA directly). Whatever the
administrative context, the pathway appears the same –
should EPA, in the course of issuing an individual permitting
decision, an appeal to the EAB, or through another method,
take final agency action approving of, passing on, or
otherwise ruling on the substance of the SILs Guidance in a
nationally applicable manner, review should be had in this
Court under section 307(b)(1), just as Congress commanded.
RANDOLPH, Senior Circuit Judge, concurring: I concur in the
majority opinion. As to Judge Wilkins’ separate concurring
opinion, I see no reason to decide what we would decide if
only the case before us were a different case.
