 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 6, 2014                    Decided June 13, 2014

                        No. 13-1014

                    SIERRA CLUB, ET AL.,
                        PETITIONERS

                             v.

     ENVIRONMENTAL PROTECTION AGENCY AND GINA
      MCCARTHY, ADMINISTRATOR, UNITED STATES
         ENVIRONMENTAL PROTECTION AGENCY,
                   RESPONDENTS

        BIG BROWN LIGNITE COMPANY, LLC, ET AL.,
                     INTERVENORS


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


     Thomas Cmar argued the cause for petitioners. With him
on the briefs were Abigail Dillen and Jocelyn D’Ambrosio.

    Norman L. Rave Jr., Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief was
Robert G. Dreher, Acting Assistant Attorney General.

    Norman W. Fichthorn argued the cause for intervenors.
With him on the brief were E. Carter Chandler Clements, Aaron
M. Flynn, and Leslie S. Ritts.
                               2

    Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

   Opinion for the court filed by Circuit Judge ROGERS, with
whom Judge Henderson and Judge Tatel join.

     ROGERS, Circuit Judge: On November 19, 2012, the
Assistant Administrator of the Environmental Protection Agency
issued a memorandum to regional directors on the “Next Steps
for Pending Redesignation Requests and State Implementation
Plan Actions Affected by the Recent Court Decision Vacating
the 2011 Cross-State Air Pollution Rule.” The Memorandum
stated that certain pending state submissions could proceed
based on emissions reductions under a rule this court had
invalidated but temporarily left in effect pending its
replacement. Petitioners challenge the Memorandum on
procedural and substantive grounds. The court lacks jurisdiction
to consider their challenge because petitioners fail to show they
suffer injury that is imminent or certain as a result of the
Memorandum, and therefore they lack standing to sue.
Accordingly, we dismiss the petition for review.

                               I.

     The Clean Air Act (“CAA”), 42 U.S.C. § 7410(a)(1),
requires each State to submit for approval by the EPA an
implementation plan (“SIP”) specifying how national primary
and secondary ambient air quality standards (“NAAQS”) will be
implemented and maintained within the State. To redesignate
an area from non-attainment to attainment of the applicable
NAAQS, EPA must determine that “the improvement in air
quality is due to permanent and enforceable reductions in
emissions resulting from implementation of the applicable
implementation plan and applicable Federal air pollutant control
regulations and other permanent and enforceable reductions.”
Id. § 7407(d)(3)(E)(iii) (emphasis added). In States containing
                                 3

“mandatory class I Federal areas,” such as national parks and
wilderness areas, the SIP must include such “measures as may
be necessary to make reasonable progress toward meeting the
national goal” of remedying impairment of visibility caused by
manmade pollution, including requiring that certain emitting
sources use the “best available retrofit technology” (“BART”)
to control emissions, and a 10–15 year strategy for making
reasonable progress. Id. § 7491(a), (b)(2). EPA regulations
allow an “emissions trading program or other alternative” to
BART so long as the alternative “achieve[s] greater reasonable
progress” than BART. 40 C.F.R. § 51.308(e)(2).

     Under the CAA’s good-neighbor provision, 42 U.S.C.
§ 7410(a)(2)(D)(I), a SIP must also include “adequate
provisions” prohibiting emissions activity within the State from
“contribut[ing] significantly to nonattainment in, or interfer[ing]
with maintenance by, any other State with respect to any such
[NAAQS].” The Clean Air Interstate Rule (“CAIR”), 70 Fed.
Reg. 25,162 (May 12, 2005), was designed to carry out the
good-neighbor provision. It was initially vacated by this court
in North Carolina v. EPA, 531 F.3d 896, 929–30 (D.C. Cir.
2008), but, upon reconsideration, was “allow[ed] . . . to remain
in effect until it is replaced by a rule consistent with our opinion
[because this] would at least temporarily preserve the
environmental values covered by CAIR,” North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008); see also id. at
1178–79 (Rogers, J., concurring in granting rehearing in part).
The subsequent Cross-State Air Pollution Rule (the “Transport
Rule”), 76 Fed. Reg. 48,208 (Aug. 8, 2011), was to replace
CAIR, but it was also vacated by this court, see EME Homer
City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012),
cert. granted, 133 S. Ct. 2857 (2013); see also id. at 38–61
(Rogers, J., dissenting). The court instructed “EPA [to] continue
administering CAIR pending the promulgation of a valid
replacement,” id. at 38 (majority opinion).
                                4

       The Memorandum of November 19, 2012,
“communicate[d] . . . [EPA’s] intent with regard to a range of
actions potentially affected by” this court’s decision in EME
Homer City. Mem. at 1. It stated that “[c]ertain state submittals
awaiting approval . . . may be partly dependent on the assurance
of ongoing regional NOx and SO2 emission reductions” based on
“the expectation that [the Transport Rule] . . . would be fully
implemented.” Id. With regard to pending “attainment SIPs,
redesignation requests, and associated maintenance SIPs,” the
Memorandum stated that “based on th[e] direction from the
Court [in EME Homer City to ‘continue administering CAIR’],
. . . it will be appropriate to rely on CAIR emission reductions
as permanent and enforceable for certain actions in certain
circumstances.” Id. at 1–2 (emphasis added).

         Specifically, . . . it will be appropriate to rely on those
         reductions either until th[e] petition [for rehearing filed
         by EPA] and any further proceedings in the . . . case
         are resolved or, if the decision vacating [the Transport
         Rule] is not changed, until a valid replacement rule is
         developed and implementation plans complying with
         any new rule are submitted by the states and acted
         upon by the EPA. Thus, action on those pending
         requests and SIPs may go forward.

Id. at 2. With regard to regional haze, the Memorandum stated
that it “will be appropriate to approve” a specific proposed state
regional haze plan “that relies on CAIR emission reductions.”
Id. The Memorandum also stated that “at this time the EPA
does not intend to make findings that states failed to submit SIPs
to comply with [the good neighbor provision],” id.; this court
had instructed in EME Homer City, 696 F.3d at 37, that “[w]hen
EPA quantifies States’ good neighbor obligations, it must give
the States a reasonable first opportunity to implement those
obligations.”
                               5

                               II.

     Petitioners contend that the Memorandum is a legislative
rule that required a notice-and-comment rulemaking process,
and, further the Memorandum is arbitrary and capricious and
contrary to law in allowing regions to rely on temporary
emissions reductions from CAIR rather than demonstrating
“permanent and enforceable” reductions. EPA maintains that
Petitioners lack standing and that the Memorandum is neither
final agency action, nor a rule, nor inconsistent with either the
CAA or this court’s precedent. Our consideration of the
Memorandum begins and ends with an examination of our
jurisdiction to consider Petitioners’ contentions.

                                A.
     This case is not moot as a result of the Supreme Court’s
recent decision in EPA v. EME Homer City Generation, L.P.,
134 S. Ct. 1584 (2014), reversing the vacatur of the Transport
Rule. “A case becomes moot — and therefore no longer a
‘Case’ or ‘Controversy’ for purposes of Article III — ‘when the
issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome.’” Already, LLC v. Nike, Inc.,
133 S. Ct. 721, 726 (2013) (internal quotation marks omitted)
(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).

     Petitioners acknowledge that their petition would be moot
if EPA ceased relying on CAIR. EPA, in turn, acknowledges
that the Supreme Court’s decision means the specific factual
circumstance addressed by the Memorandum no longer exists.
EPA counsel advised during oral argument, however, that EPA
has not yet determined whether it will continue to rely on CAIR
emissions reductions. Counsel explained this is because there
are pending SIP submissions as to which EPA faces certain
deadlines as well as outstanding challenges to the Transport
                                 6

Rule that this court must still address. See Oral Arg. Rec.
18:43–19:45; see also, e.g., 42 U.S.C. § 7410(c).

    Because EPA has not yet determined that the
Memorandum’s instructions regarding reliance on CAIR
emissions reductions will no longer apply to pending SIP
submissions, it is not “absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.” Already,
LLC, 133 S. Ct. at 727 (internal quotation marks omitted).
Therefore, the petition is not moot.

                                 B.
     Petitioners do not claim to have standing under Article III
of the U.S. Constitution based on injury to themselves. Instead,
they claim that they have associational standing because (1) at
least one of their members would have standing to sue; (2) the
interests they seek to protect are germane to the organizations’
purposes; and (3) neither the claim asserted nor the relief
requested requires the participation of individual members. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)); Am. Chemistry
Council v. Dep’t of Transp., 468 F.3d 810, 815 (D.C. Cir. 2006).
Because Petitioners are not the objects of the Memorandum,
standing “is ordinarily ‘substantially more difficult’ to
establish.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562
(1992) (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)); see
Sierra Club v. EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002).
Here, it is only necessary to address the first requirement, which
entails Petitioners showing that at least one of their members has
(1) suffered an “injury in fact” that is “concrete and
particularized,” and “actual or imminent, not conjectural or
hypothetical,” (2) the injury is “fairly traceable to the challenged
action,” and (3) “it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable [judicial]
                                7

decision.” Laidlaw Envtl. Servs., 528 U.S. at 180–81 (citing
Defenders of Wildlife, 504 U.S. at 560–61); cf. Summers v. Earth
Island Inst., 555 U.S. 488, 498 (2009).

     Petitioners have submitted two sets of declarations from
their members that are relevant to standing. The first set is from
three members who are concerned that by authorizing approval
of redesignation requests relying on CAIR, the Memorandum
has denied them the protection of “permanent and enforceable”
emission reductions “guarantee[d]” by the CAA. See Decl. of
Beth Remmes ¶¶ 6–7 (Sept. 17, 2013); Decl. of William Lide
¶¶ 8–9 (Sept. 9, 2013); Decl. of Kelly Pierce ¶¶ 11–12 (Sept. 22,
2013). These members identify two areas in which they live —
Chicago and Atlanta — that EPA proposed to redesignate from
non-attainment to attainment based on CAIR emissions
reductions. Although they live in areas that currently meet the
applicable NAAQS, these members fear those areas may fail to
do so if, in the future, emission sources increase their emissions
when CAIR is replaced by another program to control interstate
transport of pollutants and those increased emissions cause the
Chicago or Atlanta areas to violate the NAAQS. See, e.g.,
Remmes Decl. ¶ 7. They are aware CAIR “was struck down by
a court years ago,” and they consequently view CAIR emissions
reductions to be “temporary.” See, e.g., id. ¶ 6. As Petitioners
note, this court instructed EPA to replace CAIR “expeditiously.”
EME Homer City, 696 F.3d at 38 n.35; see also North Carolina,
550 F.3d at 1178.

    The second set of declarations is from Petitioners’ members
who visit Shenandoah National Park in Virginia, or Mingo
National Wildlife Refuge in Missouri, or Mammoth Cave
National Park in Kentucky. They understand the Memorandum
to be EPA’s general authorization to approve regional haze
plans that rely on CAIR emission reductions as an alternative to
requiring sources to use BART. See Decl. of Drew S. Toher
                                8

¶¶ 5–7 (Sept. 20, 2013) (National Parks Conservation
Association); Decl. of John Hickey ¶¶ 5–7 (Aug. 29, 2013)
(Sierra Club); Decl. of Jim Duffer ¶¶ 4–7 (Sept. 10, 2013)
(Sierra Club); Decl. of Joseph Roberts ¶¶ 4–7 (Sept. 6, 2013)
(NRDC). Although the “permanent and enforceable” provision
of the CAA applies only to redesignation requests and the
regional haze regulation cited by Petitioners refers only to
“enforceable emissions limitations,” 40 C.F.R. § 51.308(d)(3),
EPA requires “as a policy matter” that control measures in a
regional haze plan “be permanent for the length of the relevant
plan,” Resp’t’s Br. 28. These members are concerned that
reliance on CAIR will allow greater pollution in the class I areas
they visit. See, e.g., Toher Decl. ¶ 7.

     Based on these declarations Petitioners maintain that they
have shown Article III injury-in-fact because the Memorandum
“strips away the Clean Air Act’s guarantee of enduring air
quality protections, threatening imminent injury to members
who live and breathe in areas where temporary emissions
reductions from CAIR can now substitute for the durable
emissions controls that they are guaranteed under the Act.”
Pet’rs’ Br. 16. Their members are directly injured, Petitioners
maintain, because they rely on the guarantee that the places they
live and visit will not be found to have met required air quality
standards unless the State can demonstrate that air quality
improvement was caused by “permanent and enforceable”
emissions reductions. Between August 8, 2011,when the
Transport Rule was promulgated, and December 31, 2011, when
this court stayed the rule, EPA had determined that CAIR
emissions reductions “could not be considered to be permanent.”
See, e.g., Proposed Rule, Redesignation of the Birmingham 2006
24-Hour Fine Particulate Matter Nonattainment Area to
                                9

Attainment, 76 Fed. Reg. 70,091, 70,093 (Nov. 10, 2011).1
Since the Memorandum was issued, EPA has approved
submissions relying on CAIR emissions reductions as
“sufficiently permanent and enforceable for purposes such as
redesignation.” Redesignation of the Birmingham 2006 24-
Hour Fine Particulate Matter Nonattainment Area to Attainment,
78 Fed. Reg. 5306, 5308 (Jan. 25, 2013).2 EPA has also
proposed to approve a regional haze plan relying on CAIR as an
alternative to BART. See Proposed Rule, Connecticut; Regional
Haze, 78 Fed. Reg. 5,158, 5,160–61 (Jan. 24, 2013).

     Petitioners fail to show they are suffering an injury-in-fact
that is fairly traceable to the Memorandum. First, their members
who are concerned about the effects of redesignations based on
CAIR emissions reductions live in the Chicago or Atlanta areas,
see Remmes Decl. ¶ 3; Lide Decl. ¶ 2; Pierce Decl. ¶ 2, which
are currently achieving the NAAQS. See Redesignation of the
Atlanta 1997 8-Hour Ozone Moderate Nonattainment Area to
Attainment, 78 Fed. Reg. 72,040, 72,041 (Dec. 2, 2013);
Redesignation of the Chicago Area to Attainment of the 1997
Annual Fine Particulate Matter Standard, 78 Fed. Reg. 60,704,


       1
         See also Proposed Rule, Redesignation of the Kentucky
Portion of the Cincinnati-Hamilton 1997 Annual Fine Particulate
Matter Nonattainment Area to Attainment, 76 Fed. Reg. 65,458,
65,460 (Oct. 21, 2011); Proposed Rule, Redesignation of the
Greensboro-Winston-Salem-High Point 1997 Annual Fine Particulate
Matter Nonattainment Area to Attainment, 76 Fed. Reg. 59,345,
59,347 (Sept. 26, 2011).
       2
          See also Redesignation of the Birmingham 1997 Annual
Fine Particulate Matter Nonattainnment Area to Attainment, 78 Fed.
Reg. 4341, 4343 (Jan. 22, 2013); Redesignation of the Ohio Portion
of the Huntington-Ashland 1997 Annual Fine Particulate Matter
Nonattainment Area to Attainment, 77 Fed. Reg. 76,883, 76,885–87
(Dec. 31, 2012).
                               10

60,705 (Oct. 2, 2013). Petitioners do not challenge the NAAQS
and offer no evidence to show one of those members is suffering
an injury-in-fact from denial of the public health and public
welfare protections of the CAA. Instead, Petitioners speculate
that the Memorandum will permit excessive emissions after
CAIR is replaced by another interstate pollution program,
degrading air quality in the Chicago or Atlanta areas in violation
of the “permanent and enforceable” guarantee in the CAA.

     Second, the members concerned about haze have read the
Memorandum to provide a general authorization to approve
haze plans based on CAIR emissions reductions. See Toher
Decl. ¶ 7; Hickey Decl. ¶ 7; Duffer Decl. ¶ 7; Roberts Decl. ¶ 7.
But the discussion of regional haze in the Memorandum can be
construed to authorize action only with regard to a single
pending haze plan. See Mem. at 2. None of Petitioners’
members claimed to have visited or stated an intent to visit class
I areas in Connecticut, which submitted the pending haze plan
affected by the Memorandum’s instruction to proceed. See
Resp’t’s Br. 17, 22; Intervenors’ Br. 13. As regards “two other
categories of regional haze actions taken prior to” vacatur of the
Transport Rule, the Memorandum stated EPA would await a
decision on its then-pending petition for rehearing in EME
Homer City. In those actions EPA partially disapproved
regional haze plans (including those of the States visited by
Petitioners’ members) relying on CAIR and issued federal
implementation plans relying on the Transport Rule, having
found that “the trading programs in the Transport Rule . . .
achieve greater reasonable progress towards the national goal of
achieving natural visibility conditions in Class I areas than
source-specific [BART].” Regional Haze: Revisions to
Provisions Governing Alternatives to Source-Specific Best
Available Retrofit Technology (BART) Determinations, Limited
SIP Disapprovals, and Federal Implementation Plans, 77 Fed.
Reg. 33,642, 33,642 (June 7, 2012); see id. at 33,645,
                                 11

33,653–54. Again, Petitioners offer no evidence one of their
members is suffering an injury-in-fact and instead speculate that
the Memorandum will allow for greater pollution in class I areas
after CAIR is replaced, lagging behind the visibility progress
achievable through use of BART.

     Both of Petitioners’ claims of injury fail to qualify as actual
or imminent. Because “[e]nvironmental and health injuries
often are purely probabilistic,” the court has “generally
require[d] that petitioners” claiming “increased health risks” to
establish standing “demonstrate a ‘substantial probability’ that
they will be injured,” in order to avoid rendering the injury-in-
fact requirement moot. Natural Res. Def. Council v. EPA, 464
F.3d 1, 6 (D.C. Cir. 2006). The increased risk “must be ‘non-
trivial,’ . . . and ‘sufficient to take a suit out of the category of
the hypothetical.’” Id. (quoting Mountain States Legal Found.
v. Glickman, 92 F.3d 1228, 1234–35 (D.C. Cir. 1996)).
Petitioners rely on vague generalities and make no attempt to tie
EPA’s alleged failure to implement the CAA’s guarantees to a
substantial probability that they will suffer diminished air
quality. As EPA points out, Petitioners have offered no
evidence to suggest that CAIR-based emissions reductions will
be fleeting or that a replacement program will result in
increased emissions. See Resp’t’s Br. 16. To that extent
Petitioners’ allegations regarding a risk of concrete harm “rel[y]
on a highly attenuated chain of possibilities.” Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013).

     Petitioners’ reliance on guarantees of “permanent”
emissions reductions is thus tantamount to “an abstract, and
uncognizable, interest in seeing the law enforced.” Animal
Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 432 (D.C.
Cir. 1998) (citing Allen v. Wright, 468 U.S. 737. 754 (1984)).
The cases on which Petitioners rely illustrate that their alleged
loss of statutory and regulatory “guarantees” fails to establish
                                12

injury-in-fact. Unlike the petitioner in Natural Resources
Defense Council v. EPA, 643 F.3d 311, 318 (D.C. Cir. 2011),
Petitioners do not claim that the Memorandum delayed
attainment or eliminated incentives to reduce emissions.
Neither do Petitioners show a concrete aesthetic injury as in
Animal Legal Defense Fund, 154 F.3d at 431, where a plaintiff
witnessed “particular animals enduring inhumane treatment”;
Petitioners’ members refer to haze marring the visual beauty of
class I areas, see, e.g., Toher Decl. ¶ 6, that is no different from
the “guarantees” claim. Neither have Petitioners shown that the
alleged “stripping away” of guarantees, Reply Br. 7, caused
“uncertainty as to whether the EPA’s actions expose[d] [their
members] to excess air pollution,” as in New York Public
Interest Research Group v. Whitman, 321 F.3d 316, 325 (2d Cir.
2003). Petitioners’ members live in attainment areas and visit
class I areas as to which the Memorandum authorized no
change.

     Further, because Petitioners have failed to establish that
they will likely suffer a substantive injury, their claimed
procedural injury — being denied the right to comment on the
Memorandum — necessarily fails. “[D]eprivation of a
procedural right without some concrete interest that is affected
by the deprivation — a procedural right in vacuo — is
insufficient to create Article III standing.” Summers, 555 U.S.
at 496; see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d
6, 15–16 (D.C. Cir. 2011).

     Accordingly, we dismiss the petition for lack of
jurisdiction.
