 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 1, 2019                    Decided June 14, 2019

                        No. 18-1038

                       SIERRA CLUB,
                        PETITIONER

                             v.

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

             PACIFICORP AND STATE OF UTAH,
                     INTERVENORS


       On Petition for Review of Final Action of the
      United States Environmental Protection Agency


     Keri N. Powell argued the cause for petitioner. With her
on the briefs were Patton Dycus and Joshua Smith.

     David J. Kaplan, Senior Attorney, U.S. Department of
Justice, argued the cause for respondent Environmental
Protection Agency. With him on the brief were Jeffrey Bossert
Clark, Assistant Attorney General, Jonathan D. Brightbill,
Deputy Assistant Attorney General, and Simi Bhat, Attorney.
                              2
     E. Blaine Rawson argued the cause for respondent-
intervenor PacifiCorp. With him on the brief were Megan
McKay Withroder and Marie Bradshaw Durrant.

      Sean D. Reyes, Attorney General, Office of the Attorney
General for the State of Utah, Tyler R. Green, Solicitor
General, Utah Attorney General, Christian C. Stephens, and
Marina V. Thomas, Assistant Attorneys General, were on the
brief for intervenor State of Utah.

     Shannon S. Broome and Charles H. Knauss were on the
brief for amicus curiae Air Permitting Forum in support of
respondent United States Environmental Protection Agency.

    Before: ROGERS, TATEL and PILLARD, Circuit Judges.

    Opinion for the Court by Circuit Judge ROGERS.

     ROGERS, Circuit Judge: The threshold question the court
must decide that is ultimately dispositive is whether venue is
proper in this court pursuant to Section 307(b)(1) of the Clean
Air Act, 42 U.S.C. § 7607(b)(1). Sierra Club filed a petition
for the Administrator of the Environmental Protection Agency
to object to a renewal of an operating permit under Title V of
the Clean Air Act issued by the State of Utah for the Hunter
Power Plant in Emery County, Utah. The renewal permit
incorporated requirements in a preconstruction permit under
Title I that the Hunter Power Plant obtained in 1997. Based on
a new interpretation of his obligations under Title V, the
Administrator denied the petition for objection without
examining the merits of Sierra Club’s claim. Sierra Club seeks
vacatur and remand. Because the Order denying the petition
for objection is neither a nationally applicable regulation nor
determined by the Administrator to have nationwide scope or
                               3
effect, venue is not proper in this court. Accordingly, we must
dismiss the petition for review.

                               I.

     Title V of the Clean Air Act requires certain stationary
sources of air pollution to obtain operating permits. 42 U.S.C.
§ 7661b. The permit must include enforceable emissions
standards and other conditions as necessary to assure
compliance with the Clean Air Act’s “applicable requirements”
for air pollution prevention and control. Id. § 7661c(a). EPA
regulations implementing Title V define “applicable
requirements” to include the terms and conditions of Title I
preconstruction permits, which must be obtained prior to the
construction or modification of certain air pollution sources.
40 C.F.R. § 70.2; see also 42 U.S.C. §§ 7475, 7502(c)(5),
7503.

     States administer Title V through state implementation
plans, which must be approved by EPA. Id. § 7661a(d). When
implementing these plans, state permitting authorities must
submit Title V permit applications and proposed permits to
EPA for review. Id. § 7661d(a). If the Administrator of EPA
determines that a proposed permit does not comply with the
applicable requirements, then the Administrator “shall . . .
object to its issuance.” Id. § 7661d(b)(1). If the Administrator
does not object within 45 days of receiving a proposed permit,
then “any person” may petition the Administrator to object. Id.
§ 7661d(b)(2). The Administrator of EPA must grant or deny
the petition within 60 days, and he must object to the issuance
of the proposed permit if the petition demonstrates that a permit
is not in compliance with applicable requirements. Id. Title V
permits must be renewed every five years.                     Id.
§ 7661a(b)(5)(B).
                               4
     PacifiCorp operates the Hunter Power Plant in Emery
County, Utah. Pursuant to the Utah state implementation plan,
PacifiCorp is required to apply for a Title V operating permit
for the Hunter Power Plant. Id. §§ 7661a(a), 7661c(a).
PacifiCorp also was required to obtain a Title I preconstruction
permit prior to making various modifications to the Hunter
Power Plant in the late 1990s. Id. § 7410(a)(2)(c). On
December 18, 1997, PacifiCorp obtained a preconstruction
permit for the Hunter Power Plant under Utah’s EPA-approved
Title I preconstruction permit program. The Utah Department
of Environmental Quality, Division of Air Quality (“Utah
Department”) found that the upcoming modifications would
not raise the Hunter Power Plant’s emissions levels because the
Plant was placing enforceable limits on its potential to emit.
Therefore, the planned construction projects were not classified
as major modifications to a major source. See 40 C.F.R.
§§ 51.165, 60.2, 60.5. On January 7, 1998, the Utah
Department issued a Title V permit for the Hunter Power Plant,
which incorporated the requirements from the 1997
preconstruction permit.

     In September 2015, Utah published a proposed renewal
Title V permit for the Hunter Power Plant. The Administrator
of EPA did not object, and the Utah Department issued a
renewal permit on March 3, 2016. Sierra Club then petitioned
the Administrator of EPA to object to the renewal permit. 42
U.S.C. § 7661d(b)(2). In the petition for objection, Sierra Club
argued, among other things, that the modifications to the
Hunter Power Plant in the late 1990s did increase emissions
and therefore the 1997 preconstruction permit did not assure
the Plant’s compliance with applicable requirements for major
modifications to major sources, including the requirement to
use best available control technology, 42 U.S.C. § 7475(a)(4).
                               5
     The Administrator of EPA denied Sierra Club’s petition
for objection.     He determined that, “in light of the
circumstances presented,” he would not review the
preconstruction permitting decisions notwithstanding Sierra
Club’s argument that the 1997 preconstruction permit did not
include all applicable requirements for major modifications
constructed at the Hunter Power Plant in the late 1990s. Order
Denying a Petition for Objection to Permit, In re PacifiCorp
Energy, Hunter Power Plant, Emery, Utah, Permit No.
1500101002, Petition No. VIII-2016-4, at 8 (Oct. 16, 2017)
(emphasis added) (“Order”). The Administrator stated that
when the Utah Department issued the preconstruction permit
for the Hunter Power Plant in 1997, EPA had determined the
source-specific     “applicable    requirements”     for    the
modifications for purposes of Title V and found no error in the
decision to incorporate the terms from the Title I
preconstruction permit into the Title V operating permit
without further review. Id. at 11.

     The Administrator acknowledged that his decision not to
review the substantive merits of Sierra Club’s petition for
objection was based on a different interpretation of “applicable
requirements,” as defined in 40 C.F.R. § 70.2, than had been
previously applied when Administrators had substantively
reviewed Title I preconstruction permit decisions in later Title
V proceedings. See id. at 8–9. Under this Administrator’s
analysis of the Clean Air Act’s purpose and scheme, the
purpose of Title V is to consolidate all requirements into a
single operating permit, not to review the merits of previous
Title I preconstruction permitting decisions.

    Sierra Club timely petitions for review of the Order
denying the petition for objection to renewal of the Title V
operating permit of the Hunter Power Plant; it also filed a
protective appeal in the U.S. Court of Appeals for the Tenth
                               6
Circuit, which is being held in abeyance pending the outcome
here. Sierra Club v. EPA, Case No. 18-9507 (10th Cir.). Sierra
Club seeks vacatur of the Order and remand for the
Administrator to respond to the merits of the argument in the
petition for objection that the Hunter Power Plant’s 1997 Title
I preconstruction permit was based on an erroneous
classification of modifications in the late 1990s.

                              II.

     Section 307(b)(1) of the Clean Air Act provides, in
relevant part:

       A petition for review of action of the Administrator in
       promulgating any national primary or secondary
       ambient air standard . . . 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. A petition for review of the
       Administrator’s action in approving or promulgating
       any implementation plan . . . or any other final action of
       the Administrator under this chapter . . . 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
       determination.

42 U.S.C. § 7607(b)(1) (emphases added).
                                7

     This court has held that that the venue provision of 42
U.S.C. § 7607(b)(1) is not jurisdictional. Dalton Trucking, Inc.
v. EPA, 808 F.3d 875, 879–80 (D.C. Cir. 2015); Tex. Mun.
Power Agency v. EPA, 89 F.3d 858, 867 (D.C. Cir. 1996).
Therefore, we begin by addressing Intervenor PacifiCorp’s
contention that Sierra Club lacks standing under Article III of
the Constitution to obtain review of the Administrator’s Order.
Concluding there is standing, we then turn to the question of
venue.

                                A.

     PacifiCorp maintains Sierra Club has not sufficiently
shown that emissions from the Hunter Power Plant cause injury
to its members or that their injuries would be redressable by a
change in the Hunter Plant’s 2016 Title V permit. It claims the
Hunter Power Plant’s emissions have already been on a
downward trend over the past couple of decades. Intervenor
PacifiCorp Br. 18–21.

      To satisfy “the irreducible constitutional minimum of
standing,” a party must establish (1) that it has “suffered an
injury in fact” that is both “concrete and particularized” and
“actual or imminent,” (2) that the injury is “fairly trace[able] to
the challenged action of the defendant,” and (3) that the injury
is “likely . . . [to] be redressed by a favorable decision.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (first
alteration in original). For an organization to bring suit on
behalf of its members, it must demonstrate “its members would
otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181
                               8
(2000). When “a party assert[s] a procedural injury,” it “enjoys
a somewhat relaxed test as to whether compliance with the
procedural requirement would lead to ‘redress’ of the party’s
substantive injury.” Ass’n of Am. Physicians & Surgeons v.
Sebelius, 746 F.3d 468, 472 (D.C. Cir. 2014).

     Sierra Club’s standing declarations establish that it has
standing. The Hunter Power Plant’s emissions contribute to
haze in Arches National Park, Capitol Reef National Park, and
Canyonlands National Park. See Approval, Disapproval and
Promulgation of Air Quality Implementation Plans; Partial
Approval and Partial Disapproval of Air Quality
Implementation Plans and Federal Implementation Plan; Utah;
Revisions to Regional Haze State Implementation Plan;
Federal Implementation Plan for Regional Haze, 81 Fed. Reg.
2004, 2004, 2016 (Jan. 14, 2016). Some of Sierra Club’s
members who regularly visit those parks have filed
declarations that the haze presents health concerns and reduces
their enjoyment of the parks. See Wayne Y. Hoskisson Decl.
1–5; Darrell Mensel Decl. 1–5. They state that if Sierra Club
succeeds on the merits, the Hunter Power Plant would have to
“reduce its air pollution,” thereby reducing the Hunter Power
Plant’s injury to them. Hoskisson Decl. 3–4; Mensel Decl. 3–
4.

     This case is therefore like Sierra Club v. EPA, 699 F.3d
530, 533 (D.C. Cir. 2012), where this court held that Sierra
Club had standing because its members “unquestionably
live[d] within zones they claim are exposed to” regulated air
pollutants and “our vacatur [would] require EPA . . . to
entertain and respond to the Club’s claims about the necessary
scope and stringency of the standards” for regulating those
pollutants. Sierra Club has “shown its members’ . . . concrete
interest” of a type that its asserted procedural interest is
                               9
“plainly designed to protect” and that its injury “is potentially
redressable” by further agency action on remand. Id.

     This suffices to establish that Sierra Club has standing to
petition for review of the Order. NRDC v. EPA, 749 F.3d 1055,
1062 (D.C. Cir. 2014); see also Friends of Earth v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–85 (2000). For
purposes of standing, the court assumes the validity of the
petitioner’s claims. Sierra Club, 699 F.3d at 533. Even if the
Hunter Plant has made progress in reducing its emissions,
neither it nor EPA disputes that its emissions could be reduced
further to alleviate harm Sierra Club’s members continue to
suffer.

                               B.

     Under Section 307(b) of the Clean Air Act, 42 U.S.C.
§ 7607(b)(1), there are two routes for venue to be proper in this
court. First, EPA’s regulation or other final action may itself
be nationally applicable. Second, EPA’s Administrator may
determine that the otherwise locally or regionally applicable
action has nationwide scope or effect and publish his finding.
In distinguishing between nationally and regionally applicable
agency action, Section 307(b) does not track the familiar
distinction under the Administrative Procedure Act between
rules and adjudications. See Safari Club Int’l v. Zinke, 878
F.3d 316, 332–33 (D.C. Cir. 2017). Nor does it categorically
direct review of orders resolving adjudications to the regional
circuits and review of legislative rules to this court. Instead,
the court must decide whether the challenged action is properly
before this court under either route, and we conclude that Sierra
Club’s petition for review of the Administrator’s denial of its
petition for objection to a state-issued permit is not properly
before this court under either route.
                               10
      First, the Order is not nationally applicable. The court
need look only to the face of the agency action, not its practical
effects, to determine whether an action is nationally applicable.
Dalton Trucking, 808 F.3d at 881; Am. Road & Transp.
Builders Ass’n v. EPA, 705 F.3d 453, 456 (D.C. Cir. 2013). On
its face, the Order denies Sierra Club’s petition for objection to
a single permit for a single plant located in a single state. The
Order has immediate effect only for the Hunter Power Plant. If
EPA relies on the statutory interpretation set forth in the Order
in future adjudications or other final agency action, it will be
subject to judicial review upon challenge.

     The Order’s application beyond the instant case is limited
by its own terms. The Administrator expressly confined his
novel interpretation of Title V to the specific circumstances of
the Hunter Power Plant, denying the protest order “in light of
the circumstances presented here” and did not speak more
broadly. Order at 8, 20. Indeed, the Administrator noted he
was “not considering at this time whether other circumstances
may warrant a different approach.” Id. at 11 n.21. He confined
his restrictive interpretation of Title V “to the facts of this
Claim, where a permitting authority issued a source-specific
Title I preconstruction permit subject to public notice and
comment and for which judicial review was available” at that
time at the state level. Id. The Administrator further noted that
if such checks were lacking, then it might “be appropriate for
EPA to review the applicability [of the Title I preconstruction
requirements] to a particular source in [T]itle V permitting.”
Id. at 18 n.34. This avowedly case-specific Title V analysis
supports the conclusion that the Order is “locally or regionally”
applicable under Section 307(b).

     Second, the Administrator of EPA has not published a
finding that the Order is based on a determination that has
nationwide scope or effect. EPA published the Order on its
                               11
website and published a notice of the Order’s availability in the
Federal Register, 82 Fed. Reg. 58,196 (Dec. 11, 2017). But
mere publication of the Order is not sufficient for purposes of
a finding under Section 307(b)(1). See Dalton, 808 F.3d at
881–82. The publication must reflect or otherwise indicate that
the Administrator of EPA has determined his action or other
agency action is based on a determination of nationwide scope
or effect. The Administrator made no such determination here.
Although the court has yet to decide whether EPA’s failure to
make such a finding is subject to judicial review, even
assuming review is available, the Administrator’s refusal to
make such a determination would not be arbitrary and
capricious in the factual circumstances on which Sierra Club’s
petition was based, namely whether the recent state issuance of
a renewal Title V permit for a particular plant should be
approved. For example, in American Road, 705 F.3d at 456,
this court held that venue for review of EPA’s approval of
revisions to California’s state implementation plan lay in the
Ninth Circuit. The Administrator of EPA had not published a
finding that the approval was based upon a determination of
nationwide scope or effect. The court explained that even if it
could review the Administrator’s failure to publish a finding,
such failure would not be unreasonable because the approval
only applied to projects within the covered geographic
jurisdiction. Id.

     That the interpretative reasoning offered by the
Administrator in denying Sierra Club’s petition for objection
has precedential effect in future EPA proceedings is typical of
adjudicative orders, including regionally and locally applicable
ones. See Am. Road, 705 F.3d at 456. Here, the Order purports
to address the Administrator’s Title V-permit role only “[i]n
circumstances such as those present here where a
preconstruction permit has been duly obtained” many years
ago. Order at 10. The failure to make a “determination of
                            12
nationwide scope or effect” in these circumstances would not
be unreasonable, much less arbitrary and capricious.

    Accordingly, venue is lacking in this court and Sierra
Club’s petition for review is dismissed without reaching the
merits.
