                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 17-1644
                                  ________________

              STATE OF DELAWARE DEPARTMENT OF NATURAL
               RESOURCES AND ENVIRONMENTAL CONTROL,
                                             Petitioner
                                 v.

          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
                                            Respondent
                           ________________

                  Appeal from the Environmental Protection Agency
                       (EPA-1: EPA-HQ-OAR- -2016-0764)
                                ________________

                                Argued March 6, 2018

              Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges

                           (Opinion filed: August 21, 2018)

William J. Kassab           [Argued]
Delaware Department of Justice
820 N. French Street, 6th Floor
Carvel Office Building
Wilmington, DE 19801
      Counsel for Petitioner

Jeffrey H. Wood
   Acting Assistant Attorney General
Heather E. Gange           [Argued]
United States Department of Justice
Environment & Natural Resources Division
Ben Franklin Station
P.O. Box 7611
Washington, DC 20044
Abirami Vijayan
Stephanie L. Hogan
United States Environmental Protection Agency
Office of General Counsel
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
       Counsel for Respondent
                                 ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       The Clean Air Act allows the Environmental Protection Agency (“EPA”) to

promulgate national ambient air quality standards. See 42 U.S.C. § 7409(b). Each state

is responsible for meeting these standards, id. § 7410(a), and may petition the EPA if

emissions sources from neighboring states are interfering with compliance, id. § 7426(b).

The EPA resolves the petition through notice-and-comment rulemaking, issuing a

proposed rule, accepting comments from the public, holding a public hearing, and

publishing a final rule. See id. § 7607(d)(2)-(7). If the EPA agrees with the petition, it

may order the emissions source to cease operating within three months. Id. § 7426(c)(2).

Alternatively, it may allow the source to continue operating in line with emissions

limitations and compliance schedules. See id.

       With this backdrop, on December 5, 2016, the State of Delaware submitted a

petition to the EPA. It asked the latter to find that emissions from the Conemaugh

Generating Station in Pennsylvania impeded its ability to meet ambient air quality


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
standards in 2008 and 2015.1 Per the statutory scheme, the EPA was required to issue a

final rule on the petition within 60 days—i.e., by February 3, 2017. Id. § 7426(b). On

January 23, 2017, however, it granted itself a six-month extension that postponed the

deadline to August 3, 2017. See 82 Fed. Reg. 7,695 (Jan. 23, 2017); see also 42 U.S.C.

§ 7607(d)(10) (authorizing a six-month extension of certain deadlines).

       Delaware asks us to review the EPA’s extension. It contends the EPA had no

authority to lengthen the deadline for acting on its petition. The EPA counters that we

have no jurisdiction over Delaware’s claim, as it became moot when the extension

expired. It also argues the extension is not final agency action fit for judicial review by

our Court.

       While Delaware’s claim was pending, the EPA issued a proposed rule denying the

petition. Because it has yet to publish a final rule, we address its jurisdictional

arguments. For the reasons stated below, we do not agree that the claim is moot.

However, we conclude that the EPA’s extension is not final agency action. Accordingly,

we dismiss for lack of jurisdiction.

I.     Mootness

       The EPA argues Delaware’s claim is moot because the extension expired on

August 4, 2017. In the EPA’s view, an order vacating the extension would provide no

relief, as no live case or controversy remains. Delaware responds that the EPA


       1
         Delaware’s petition addresses ambient air quality standards for ozone in 2008
and 2015. In November 2017, the EPA “issued a determination” that Delaware “timely
attained the 2008 ozone [standards].” EPA Br. at 10 n.4. Because the EPA has yet to
make the same finding as to the 2015 standards, its decision has no effect on the petition.
                                              3
misconstrues the type of relief it seeks. Instead of asking us to vacate the order,

Delaware tells us it seeks a ruling that the EPA lacked statutory authority to grant itself a

six-month extension.

       “The doctrine of mootness requires that ‘an actual controversy must be extant at

all stages of review, not merely at the time the complaint is filed.’” N.J. Tpk. Auth. v.

Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985) (quoting Steffel v. Thompson,

415 U.S. 452, 459 n.10 (1974)). “The party asserting mootness bears a heavy burden to

show the case is moot.” Seneca Res. Corp. v. Twp. of Highland, 863 F.3d 245, 254 (3d

Cir. 2017). If that is met, “the burden [then] shifts to the party opposing mootness to

explain why the case is not moot.” Id.

       “Our impotence ‘to review moot cases . . . derives from the requirement of Article

III of the Constitution under which the exercise of our judicial power depends upon the

existence of a case or controversy.’” Jersey Cent. Power & Light, 772 F.2d at 31

(internal quotation marks omitted) (quoting North Carolina v. Rice, 404 U.S. 244, 246

(1971) (per curiam)). Thus “[a] case may become moot if (1) the alleged violation has

ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or

events have completely and irrevocably eradicated the effects of the alleged violation.”

Finberg v. Sullivan, 658 F.2d 93, 97-98 (3d Cir. 1980) (en banc) (footnote omitted)

(internal quotation marks omitted).

       In line with these principles, “a matter is not necessarily moot simply because the

order attacked has expired.” Jersey Cent. Power & Light, 772 F.2d at 31 (emphasis

added). “[I]f the underlying dispute between the parties is one ‘capable [of] repetition,

                                              4
yet evading review’ [as an exception to mootness], it remains a justiciable controversy

within the meaning of Article III.” Id. This exception “applies only . . . where (1) ‘the

challenged action [is] in its duration too short to be fully litigated prior to cessation or

expiration,’ and (2) ‘there [is] a reasonable expectation that the same complaining party

[will] be subject to the same action again.’” Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969, 1976 (2016) (second, third, and fourth alterations in original) (internal

quotation marks omitted) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).

       Here Delaware has satisfied both prongs of the exception. First, the extension—

lasting only six months in duration—is too short to be fully litigated before its expiry and

thus evades review. See Del Monte Fresh Produce Co. v. United States, 570 F.3d 316,

322 (D.C. Cir. 2009) (“This court has held that agency actions of less than two years’

duration cannot be ‘fully litigated’ prior to cessation or expiration. . . .”). Second, there is

a reasonable expectation that Delaware will have to contend with another six-month

extension. The record demonstrates that Delaware has filed several petitions in the past

and that the EPA has granted itself a six-month extension on at least three prior petitions.

Moreover, given its ongoing need to meet national ambient air quality standards,

Delaware will likely file more petitions with the EPA. Cf. id. at 325-26 (“[S]uch delays

[are] likely to recur in the future. [Appellant] has encountered a series of substantially

similar injuries from delays of substantially similar license applications in the past, and

given its business plan it anticipates suffering similar injuries in the future.”). Hence the

underlying dispute falls within the “capable of repetition, yet evading review” exception

to mootness. See Jersey Cent. Power & Light, 772 F.2d at 31.

                                               5
       The EPA counters that Delaware’s claim does not evade review because Delaware

could have resolved its claim before the extension expired by seeking expedited briefing

and argument in our Court. This contention, however, misapprehends controlling

precedent. “By [‘evading review,’] the Supreme Court has meant evading Supreme

Court review.” Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of

Columbia, 972 F.2d 365, 369 (D.C. Cir. 1992) (emphasis added). As such, Delaware’s

failure to request expedited review in our Court carries no weight in our analysis.

       Accordingly, we decline to dismiss Delaware’s claim on mootness grounds.

II.    Finality

       The EPA also contends its extension is not final agency action because it is

interlocutory and procedural. Delaware responds that the extension is final because it

defers the EPA’s performance of a non-discretionary duty—issuing a final rule on its

petition within a sixty-day time frame.

       We review de novo whether the extension is final agency action. See Minard Run

Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 247 (3d Cir. 2011). “As a general matter, two

conditions must be satisfied for agency action to be ‘final’: First, [it] . . . must mark the

‘consummation’ of the agency’s decisionmaking process . . . —it must not be of a merely

tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997)

(internal citation omitted) (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333

U.S. 103, 113 (1948)). “And second, [it] . . . must be one by which ‘rights or obligations

have been determined,’ or from which ‘legal consequences will flow. . . .’” Id. at 178

(quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatl., 400 U.S.

                                               6
62, 71 (1970)). These conditions are analogous—but not identical—to additional factors

our court considers in deciding whether an agency’s decision is final:

       1) whether the decision represents the agency’s definitive position on the
       question; 2) whether the decision has the status of law with the expectation
       of immediate compliance; 3) whether the decision has immediate impact on
       the day-to-day operations of the party seeking review; 4) whether the
       decision involves a pure question of law that does not require further
       factual development; and 5) whether immediate judicial review would
       speed enforcement of the relevant act.

Univ. of Med. & Dentistry of N.J. v. Corrigan, 347 F.3d 57, 69 n.7 (3d Cir. 2003)

(internal quotation marks omitted) (quoting CEC Energy Co. v. Pub. Serv. Comm’n, 891

F.2d 1107, 1110 (3d Cir. 1989)). Here, regardless whether we follow Bennett or

Corrigan, the result is the same. The extension is not final agency action, and thus we

lack jurisdiction to review it.

       We start our analysis with Bennett. The extension does not meet its test for

finality because it does not “mark the ‘consummation’ of the [EPA’s] decisionmaking

process,” Bennett, 520 U.S. at 178, or “alter[] the status quo,” Impro Prods., Inc. v. Block,

722 F.2d 845, 851 (D.C. Cir. 1983). Instead, it “merely begins a process” that concludes

with a final rule addressing Delaware’s petition. Clean Air Council v. Pruitt, 862 F.3d 1,

6 (D.C. Cir. 2017) (per curiam). Moreover, if we were to intervene now, we would

subject the EPA to “judicial interference [before] an administrative decision has been

formalized and its effects felt in a concrete way.” Abbott Labs. v. Gardner, 387 U.S. 136,

148 (1967). As such, both prongs of Bennett indicate that we lack jurisdiction to review

the extension at this point in the rulemaking process.



                                             7
       Moving on to Corrigan, the extension also fails to qualify as final agency action

because it does not represent the EPA’s definitive position on the petition and it does not

announce any new regulations that require immediate compliance. While the EPA’s

delay affects Delaware’s ability to address certain sources of pollution in a timely

manner, it remains free to challenge the extension by filing suit in district court. See 42

U.S.C. § 7604(a)(3) (“The district courts of the United States shall have jurisdiction to

compel . . . agency action unreasonably delayed.”); cf. Toilet Goods Ass’n v. Gardner,

387 U.S. 158, 165 (1967) (“[A] refusal to admit an inspector . . . would at most lead only

to a suspension of certification services . . . , a determination that can then be promptly

challenged. . . .”). We recognize that Delaware’s claim involves a pure question of law.

However, we are unable to expedite the EPA’s rulemaking process, as district courts have

exclusive jurisdiction over actions contesting agency delay. See Sierra Club v. EPA, No.

01-1008, 2001 WL 476186, at *1 (D.C. Cir. Apr. 20, 2001) (per curiam) (“To the extent

petitioner is concerned about unreasonable delay, or failure to meet a nondiscretionary

deadline, any relief that may be available to it is by way of an action in district court.

See 42 U.S.C. § 7604(a).”). Accordingly, a majority of the Corrigan factors suggest that

the extension is not a final agency decision.

        Though both Bennett and Corrigan tell us we lack jurisdiction, Delaware

contends the statute requires us to review the extension. Specifically, it points to

§ 7607(b)(2), which allows the courts of appeals to review “a[ny] final decision by the

[EPA] Administrator [that] defers performance of any nondiscretionary statutory action

to a later time.” 42 U.S.C. § 7607(b)(2). By its plain terms, however, this provision

                                                8
applies to a “final decision.” Id. (emphasis added). Because the EPA’s extension is not

final under either our precedent or Supreme Court precedent, § 7607(b)(2) does not

obligate us to reach the merits of Delaware’s claim.2

       Delaware also argues we must vacate the EPA’s extension before it can ask the

District Court to compel agency action under § 7604(a). We disagree. The Clean Air

Act does not require our Court to act before a district court issues a ruling under

§ 7604(a). See Connecticut v. Pruitt, 3:17cv796 (WWE), 2018 WL 745953, at *1 (D.

Conn. Feb. 7, 2018) (ruling on a suit under § 7604(a) without requiring the plaintiff to

obtain vacatur of the extension). Hence the District Court is free to compel the EPA to

act on Delaware’s petition even when the extension is still in place, and we need not

review the EPA’s non-final decision for Delaware to obtain the relief it seeks.

                               *      *       *      *      *

       In sum, we hold that Delaware’s claim is not moot, as it is capable of repetition yet

evades review. However, its claim does not challenge final agency action because the




       2
         Additionally, the statute characterizes extensions under § 7607(d)(10) as
“procedural determinations.” 42 U.S.C. § 7607(d)(8). It states that we may review them
only “at the time of the substantive review of the rule.” Id. Thus, if we look at the statute
as a whole, it seems unlikely that § 7607(b)(2) would penalize extensions taken under
§ 7607(d)(10). See LaVallee Northside Civic Ass’n v. V.I. Coastal Zone Mgmt. Comm’n,
866 F.2d 616, 621 (3d Cir. 1989) (“[A] recognized tenet of statutory interpretation directs
that a specific provision in an enactment prevails over a seemingly irreconcilable general
one.”); see also Portland Cement Ass’n v. EPA, 665 F.3d 177, 193 (D.C. Cir. 2011) (per
curiam) (“This court has never considered an agency decision to continue the rulemaking
process to be a ‘final agency action,’ nor has any court held that we have jurisdiction to
review such a decision under [§] 7607(b)(2).”).
                                              9
extension is an interlocutory step in the EPA’s rulemaking process.3 Thus we dismiss for

lack of jurisdiction.




       3
         Even though we decline to reach the merits of Delaware’s claim at this stage of
the rulemaking process, today’s decision does not bar Delaware from renewing its
challenge when the EPA issues a final rule. As noted, we are unable to reinstate a
deadline or compel agency action when Delaware renews its challenge. However, we
may address whether the EPA acted in excess of its statutory authority by issuing itself a
six-month extension. Our review will depend on whether our Court is the proper venue
for any subsequent challenges. See 42 U.S.C. § 7607(b)(1) (looking to the reach of the
final rule to determine the proper venue).
                                            10
