     Case: 13-31214   Document: 00513003240    Page: 1   Date Filed: 04/13/2015




                      REVISED APRIL 13, 2015

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    April 7, 2015
                                No. 13-31214
                                                                    Lyle W. Cayce
                                                                         Clerk
GULF RESTORATION NETWORK; MISSOURI COALITION FOR THE
ENVIRONMENT; IOWA ENVIRONMENTAL COUNCIL; TENNESSEE
CLEAN WATER NETWORK; MINNESOTA CENTER FOR
ENVIRONMENTAL ADVOCACY; SIERRA CLUB; PRAIRIE RIVERS
NETWORK; KENTUCKY WATERWAYS ALLIANCE; ENVIRONMENTAL
LAW & POLICY CENTER; NATURAL RESOURCES DEFENSE COUNCIL,
INCORPORATED; WATERKEEPER ALLIANCE, INCORPORATED,

                                          Plaintiffs - Appellees
v.

GINA McCARTHY, Administrator of the United States Environmental
Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY,

                                          Defendants - Appellants




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The Clean Water Act establishes a statutory scheme to protect and
improve the quality of the country’s waters. The administration of the Act
depends on complicated interactions of three actors: the states, with lead
responsibility for protecting waters within their borders; the EPA, which steps
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                                       No. 13-31214
in when the state-led efforts are inadequate; and the federal courts, which
enforce Congressional mandates against state and federal regulators.
        Not every state or EPA action taken under the Act is judicially
cognizable; some are committed to agency discretion and are unreviewable.
Under the statute, the EPA Administrator is obligated to issue new water
quality standards in any case where she “determines that a revised or new
standard is necessary to meet the requirements of” the Act.                        Here, the
Administrator denied a petition for rulemaking, declining to make a so-called
“necessity determination.” The petitioners challenged this decision in federal
court. The EPA countered that the denial was an unreviewable discretionary
act.
        This case poses two questions.             First, do we have subject matter
jurisdiction to review the EPA’s decision not to make a necessity
determination. We hold that we do. Second, was the EPA required to make
such a determination. We hold that it was not.
                                                   I.
                                                   A.
        Congress passed the Clean Water Act 1 “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 2 The Act
bans “the discharge of any pollutant by any person,” unless affirmatively
allowed by law. 3 In regulating discharge, the Act “anticipates a partnership


        1 The “Act” or “CWA.”
        2 33 U.S.C. § 1251(a).
        3 Id. § 1311(a). A “pollutant” includes, with certain enumerated exceptions, “dredged

spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into
water.” Id. § 1362(6). “Discharge of a pollutant” is defined broadly as “any addition of any
pollutant to navigable waters from any point source,” id. § 1362(12), and “navigable waters,”
in turn, “means the waters of the United States, including the territorial seas,” id. § 1362(7).
The outer limit of the phrase “waters of the United States” remains fuzzy. See, e.g., Rapanos
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                                       No. 13-31214
between the States and the Federal Government,” 4 with both sovereigns
sharing regulatory responsibilities for water protection. 5
       One area where both states and the federal government play a role is in
the setting and administration of water quality standards. These regulations
“define[] the water quality goals of a water body . . . by designating the use or
uses to be made of the water and by setting criteria necessary to protect the
uses.” 6 The states are the primary player in this process; they are “responsible
for reviewing, establishing, and revising water quality standards.” 7                      The
federal government plays a secondary role, with important backstop
responsibilities. State standards must be submitted to the EPA, the agency
tasked with reviewing and approving these standards, to ensure that they are
sufficient to “protect the public health or welfare, enhance the quality of water
and serve the purposes of this [Act].” 8 If the state’s standards do not pass
muster, the EPA specifies changes required for approval. 9




v. United States, 547 U.S. 715, 733-34 (2006); id. at 766-67 (Kennedy, J., concurring in the
judgment).
        4 Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992).
        5 In New York v. United States, 505 U.S. 144 (1992), the Court termed this regulatory

arrangement one of “cooperative federalism,” where Congress “offer[s] States the choice of
regulating that activity according to federal standards or having state law pre-empted by
federal regulation.” Id. at 167 (internal citation omitted).
        6 40 C.F.R. § 131.2. These standards must “protect public health or welfare, enhance

the quality of water and serve the purposes of the [Act].” Id. “‘Serve the purposes of the Act’
(as defined in . . . the Act) means that water quality standards should, wherever attainable,
provide water quality for the protection and propagation of fish, shellfish and wildlife and for
recreation in and on the water and take into consideration their use and value of public water
supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and
agricultural, industrial, and other purposes including navigation.” Id.
        7 Id. § 131.4(a).
        8 33 U.S.C. § 1313(c)(2)(A).
        9 Id. § 1313(c)(3). The EPA must notify the states of any changes within 90 days after

the proposed water quality standards are submitted to it. Id.
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      The EPA may also directly set water quality standards through its own
regulations under the two circumstances set out in 33 U.S.C. § 1313(c)(4)(A)
and (B) (“section 1313(c)(4)”).
      (A) if a revised or new water quality standard submitted by such
      State . . . for such waters is determined by the Administrator not
      to be consistent with the applicable requirements of this chapter,
      or

      (B) in any case where the Administrator determines that a revised
      or new standard is necessary to meet the requirements of this
      chapter. 10
In other words, in order to regulate pursuant to its section 1313(c)(4)(B)
powers, the EPA must make what is called a “necessity determination.” If the
agency sets water quality standards, it acts through a rulemaking process, and
“is subject to the same policies, procedures, analyses, and public participation
requirements established for States in these regulations.” 11
                                           B.
      This case began when a group of environmental organizations petitioned
the EPA 12 to “use its powers [pursuant to section 1313(c)(4)(B)] to control
nitrogen and phosphorous pollution” within the Mississippi River Basin and
the Northern Gulf of Mexico.
      The EPA declined to do so. While the agency agreed that nitrogen and
phosphorous pollution “is a significant water quality problem,” it did “not
believe that the comprehensive use of federal rulemaking authority is the most



      10  Id. § 1313(c)(4)(A)-(B) (emphasis added).
      11  40 C.F.R. § 131.22(c).
       12 The organizations included: Gulf Restoration Network, Louisiana Environmental

Action Network, Tennessee Clean Water Network, Public Employees for Environmental
Responsibility, Kentucky Waterways Alliance, Missouri Coalition for the Environment, Iowa
Environmental Council, Prairie Rivers Network, Environmental Law & Policy Center,
Midwest Environmental Advocates, Minnesota Center for Environmental Advocacy, Natural
Resources Defense Council, and the Sierra Club.
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effective or practical means of addressing these concerns at this time.” Instead,
the EPA said that, because its “long-standing policy, consistent with the CWA,
has been that states should develop and adopt standards in the first instance,”
and in light of the fact that the states had been “quite active” in addressing
water pollution issues, it was appropriate to let the states take the primary
role in issuing new standards. In denying the petition, the EPA was explicit
that it was “not determining that [new standards] are not necessary to meet
CWA requirements,” but rather was “exercising its discretion to allocate its
resources in a manner that supports targeted regional and state activities to
accomplish our mutual goals of reducing [nitrogen and phosphorous] pollution
and accelerating the development and adoption of state approaches to
controlling [nitrogen and phosphorous].”
      The petitioners filed suit, positing that the EPA had violated the
Administrative Procedure Act 13 and the CWA by declining to make a necessity
determination.      The EPA moved to dismiss the case on subject matter
jurisdiction grounds, arguing that the decision whether to make a necessity
determination was a discretionary act that the court lacked authority to
review. The parties also cross-moved for summary judgment on the merits.
      The district court ruled that it had jurisdiction to review the EPA’s
decision not to make a necessity determination. 14              It then went one step
further. Pursuant to the Supreme Court’s decision in Massachusetts v. EPA, 15
it held that the “EPA could not simply decline to make a necessity
determination in response to . . . [the] petition for rulemaking.” 16 It remanded




      13  5 U.S.C. § 551 et seq. (the “APA”).
      14  Gulf Restoration Network v. Jackson, No. 12-677, 2013 WL 5328547, at *4 (E.D. La.
Sept. 20, 2013).
       15 549 U.S. 497 (2007).
       16 Gulf Restoration Network, 2013 WL 5328547, at *6.

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                                        No. 13-31214
the case to the agency with orders to conduct a necessity determination. 17 In
doing so, the district court declined to issue specific guidance on “the types of
factors that EPA can or cannot consider when actually making the necessity
determination.” 18
       This timely appeal followed.
                                               II.
       We review de novo the district court’s legal conclusions about its subject
matter jurisdiction. 19
                                               A.
       We begin with the elementary principle that “the United States, as
sovereign, is immune from suit save as it consents to be sued.” 20                          The
petitioners have the burden of proving that Congress has consented to suit by
affirmatively waiving sovereign immunity in the specific context at issue. 21 In
the Administrative Procedure Act, the statute governing federal agency
operations generally, Congress provided a general waiver of sovereign
immunity for “[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a
relevant statute.” 22 In light of this language, federal courts must apply a
general presumption that they have jurisdiction to review final agency
actions. 23 But this waiver is not absolute, and Congress has provided that the


       17 Id. at *7.
       18 Id.
       19 Filer v. Donley, 690 F.3d 643, 646 (5th Cir. 2012).
       20 La. Dep’t. of Envtl. Quality v. U.S. E.P.A., 730 F.3d 446, 448 (5th Cir. 2013) (bracket

omitted) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
       21 See id. at 448-49.
       22 5 U.S.C. § 702. The APA waives sovereign immunity for all claims “other than

money damages.” Id. Only final agency actions are reviewable under the APA. Id. § 704.
       23 See, e.g., Sackett v. E.P.A., 132 S. Ct. 1367, 1373 (2012) (“The APA, we have said,

creates a ‘presumption favoring judicial review of administrative action,’ but as with most
presumptions, this one ‘may be overcome by inferences of intent drawn from the statutory
scheme as a whole.’”) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)); Save
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APA – and its concomitant grant of judicial review – does not apply in two
circumstances: first, if the “statute[] preclude[s] judicial review,” an exception
not at issue in this case; and second, if “agency action is committed to agency
discretion by law.” 24
       In a quartet of cases, the Supreme Court provided two principles that
guide our discretion analysis. The first is that the agency discretion clause “is
a very narrow exception” to the principle of judicial review of administrative
action. 25 It applies only “in those rare instances where statutes are drawn in
such broad terms that in a given case there is no law to apply.” 26 These are
situations where “the statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise of discretion.
In such a case, the statute (‘law’) can be taken to have ‘committed’ the
decisionmaking to the agency’s judgment absolutely.” 27
       In determining whether Congress has provided a “meaningful standard,”
the court conducts a “careful examination of the statute on which the claim of
agency illegality is based.” 28         We look first to the statutory text, paying
particular attention to the words Congress has chosen.                       For example, in
Webster v. Doe, reviewing a statute that allowed the Central Intelligence



the Bay, Inc. v. Adm’r. of E.P.A., 556 F.2d 1282, 1293 (5th Cir. 1977) (“A long-standing and
strong presumption exists that action taken by a federal agency is reviewable in federal
court.”).
        24 5 U.S.C. § 701(a)(1), (2); see also Webster v. Doe, 486 U.S. 592, 597 (1988) (“The scope

of judicial review under [section] 702 . . . is predicated on satisfying the requirements of
[section] 701.”).
        25 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated

on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
        26 Id. (internal quotation marks and citation omitted).
        27 Heckler v. Chaney, 470 U.S. 821, 830 (1985). The Court recognized that adopting

“[t]his construction avoids conflict with the ‘abuse of discretion’ standard of review in [section]
706 [of the APA] – if no judicially manageable standards are available for judging how and
when an agency should exercise its discretion, then it is impossible to evaluate agency action
for ‘abuse of discretion.’” Id.
        28 Webster, 486 U.S. at 600.

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Agency Director to terminate an employee, the Supreme Court highlighted the
fact that the statute was drawn so that the Director could fire the employee
whenever he “‘shall deem such termination necessary or advisable in the
interests of the United States,’ not simply when the dismissal is necessary or
advisable to those interests.” 29 This word choice, the Court concluded, “fairly
exudes deference to the Director, and appears to us to foreclose the application
of any meaningful judicial standard of review.” 30 The reviewing court must
also look at the structure and purpose of the statute. 31 Turning again to
Webster, there, the Court found dispositive the fact that the CIA’s “efficacy,
and the Nation’s security, depend in large measure on the reliability and
trustworthiness of the Agency’s employees.” 32                   Judicial review of the
termination decision, the Court implicitly concluded, would hinder the
agency’s effectiveness.
       The second agency discretion principle is that different substantive types
of agency decisions are subject to different presumptions of reviewability. In
general, agency decisions to affirmatively do something are presumptively
reviewable. 33     The reviewability of agency decisions not to do something
depends on the type of activity at issue. For “[r]efusals to take enforcement
steps . . . the presumption is that judicial review is not available.” 34 While



       29 Id.
       30 Id.
       31 See id. at 600-01.
       32 Id. at 601.
       33 See Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967), abrogated on other grounds

by Califano v. Sanders, 430 U.S. 99 (1977).
       34 Heckler v. Chaney, 470 U.S. 821, 831 (1985).     A refusal to institute investigative
actions is also presumptively unreviewable. Id. at 838. The Court justified this presumption
on several grounds, including (1) the agency’s need to determine how best to allocate its
enforcement resources, id. at 831, (2) the fact that “when an agency refuses to act it generally
does not exercise its coercive power over an individual’s liberty or property rights, and thus
does not infringe upon areas that courts often are called upon to protect,” id. at 832 (emphasis
omitted), and (3) the similarity between “an agency’s refusal to institute proceedings” and a
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Congress can trump this presumption, it must be explicit in doing so. 35 In
contrast, an agency’s denial of a petition for rulemaking is “susceptible to
judicial review” though, as a substantive matter, “such review is ‘extremely
limited’ and ‘highly deferential.’” 36
       We pause to resolve one doctrinal uncertainty: whether a denial of a
rulemaking petition is categorically reviewable, or whether it is merely
presumptively reviewable?           The petitioners urge us to adopt the former
construction.       We cannot.         While the Supreme Court’s language in
Massachusetts v. EPA could support such a holding, 37 we conclude that the
better reading is that these denials are presumptively reviewable, subject to
Congressional language clearly to the contrary, a reading faithful to Webster’s
exhortation that we determine reviewability only after a “careful examination
of the statute.” 38 It would accord with readings of Massachusetts v. EPA by




prosecutor’s decision “not to indict – a decision which has long been regarded as the special
province of the Executive Branch,” id.
       35 See id. at 838.
       36 Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007) (quoting Nat’l Customs Brokers

& Forwarders Ass’n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989)) (internal
quotation marks omitted). In distinguishing between refusals to initiate enforcement actions
and denials of petitions for rulemaking, the Court concluded that “agency refusals to initiate
rulemaking ‘are less frequent, more apt to involve legal as opposed to factual analysis, and
subject to special formalities, including a public explanation.’” Id. at 527 (quoting Am. Horse
Protection Ass’n, Inc. v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987)). The Court also recognized that
these agency decisions “arise out of denials of petitions for rulemaking which (at least in the
circumstances here) the affected party had an undoubted procedural right to file in the first
instance.” Id.
       37 See id. at 527 (stating, without relevant terms of limitation, that “[r]efusals to

promulgate rules are thus susceptible to judicial review”). The Second Circuit has
interpreted this language consistent with a categorical right to review. See, e.g., New York
v. U.S. Nuclear Regulatory Comm’n, 589 F.3d 551, 554 (2d Cir. 2009) (holding that “[a]n
agency decision to deny a rulemaking petition is subject to judicial review,” but cautioning
that the standard of review is sufficiently deferential that it “has been said to be so high as
to be akin to non-reviewability”) (internal citation and quotation marks omitted).
       38 Webster, 486 U.S. at 600.

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some of our sister circuits, 39 and our own court’s long-standing conclusion that
there is a “strong presumption,” subject to Congressional language, that
“action taken by a federal agency is reviewable in federal court.” 40 By “strong”
we mean that this presumption is not easily overcome. Nonetheless, textual
limits on agency action remain a prerequisite to our jurisdiction.
                                             B.
       Our inquiry proceeds in two steps: First, we determine whether the
agency action is akin to a denial of a rulemaking petition or whether it is
properly termed a refusal to engage in enforcement actions. If it is the former,
we employ the presumption of reviewability, if it is the latter, the presumption
is nonreviewability.      Second, we look to the statutory provision at issue to see
whether Congress has spoken sufficiently clearly as to override the appropriate
presumption.
                                             1.
       We begin by determining whether the EPA’s denial of the plaintiffs’
request for the adoption of water quality standards is properly classified as a
denial of a rulemaking petition or is better termed a refusal to engage in



       39  For example, in Conservancy of Sw. Fla. v. U.S. Fish & Wildlife Service, 677 F.3d
1073 (11th Cir. 2012), the Eleventh Circuit, citing Massachusetts, rejected the proposition
“that the denial of a petition for rulemaking is always unreviewable, or even presumptively
unreviewable.” Id. at 1085. Even still, it concluded that “in context – against the backdrop
of a statutory and regulatory regime that provides absolutely no standards that constrain the
Service’s discretion – the statute’s permissive language makes it all the more apparent that
the decision at issue is committed to agency discretion.” Id. at 1084. Similarly, in Preminger
v. Sec’y of Veterans Affairs, 632 F.3d 1345, 1351-52 (Fed. Cir. 2011), the Federal Circuit
concluded that it had authority to review the denial of a rulemaking petition after using
standard statutory interpretation techniques, such as reasoning-by-structure and legislative
history, implicitly suggesting its view that there was no categorical right to review divorced
from the statutory context.
        40 See, e.g., RSR Corp. v. Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984) (quoting

Deering Milliken, Inc., Unity Plant v. Occupational Safety & Health Review Comm’n, 630
F.2d 1094, 1099 (5th Cir. 1980)). The denial of a rulemaking petition is a form of agency
action. See, e.g., Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 918-19 (D.C. Cir. 2008).
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                                       No. 13-31214
enforcement activities. While we recognize that the line between enforcement
and rulemaking is not always clear, 41 we conclude that the EPA’s action was
akin to a denial of a rulemaking petition and is presumptively reviewable.
        In classifying a petition, we look not to the title of the plaintiffs’ filing
but to the substance of their request. 42 In their petition, the plaintiffs proposed
that:
        EPA should adopt numeric water quality standards for the
        portion of the ocean protected by the Clean Water Act but outside
        the jurisdiction of any state and for all water bodies in all states
        for which numeric water quality standards concerning nitrogen
        and phosphorous pollution have not yet been established. In the
        alternative, EPA should do this for the Northern Gulf of Mexico
        and for all waters of the United States within the Mississippi
        River Basin. At a minimum, EPA should establish water quality
        standards to control nitrogen and phosphorous pollution in the
        mainstem of the Mississippi River and the Northern Gulf of
        Mexico.
On their face, the wide scope of these requests, which would require the
adoption of water quality standards across many different states, resembles
the type of “broadly applicable . . . policy” that is generally considered a
hallmark of rulemaking. 43 The standards, if adopted, would also “grant rights,
impose obligations, or produce other significant effects on private interests,”
and would “effect a change in existing law or policy,” both of which are
considered essential features of substantive rules. 44 Moreover, the mechanism
by which the EPA would implement the new water quality standards would be



        41  Cf., e.g., Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 202 (1947)
(recognizing that agencies can set broadly applicable standards of policy “either by general
rule or by individual order”).
        42 See, e.g., Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 2:12-cv-4028, 2013 WL

1191736, at *3 (C.D. Cal. Mar. 22, 2013).
        43 Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).
        44 Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987) (internal citations

omitted).
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by “prepar[ing] and publish[ing] proposed regulations” 45 pursuant to “the same
policies, procedures, analyses, and public participation requirements” that
bind the states when they issue their own standards. 46 This implementation
process sounds in rulemaking, not enforcement.
       In arguing that the denial of the water quality standards petition is an
unreviewable nonenforcement decision, the EPA relies heavily on our decision
in Public Citizen, Inc. v. United States Environmental Protection Agency. 47
There, the petitioner challenged the EPA’s decisions not to issue a Notice of
Deficiency 48 to the state of Texas for failing to comply with certain regulatory
requirements set out in Title V of the Clean Air Act. 49 We concluded that the
decision not to issue a NOD was essentially a “decision not to invoke an
enforcement mechanism,” and was presumptively unreviewable. 50                              The
language of the statute, which stated that the EPA must “issue an NOD when
it determines a program is being inadequately administered,” was not
sufficiently specific to constrain EPA’s discretion and overcome the
presumption against judicial review. 51



       45  33 U.S.C. § 1313(c)(4).
       46  40 C.F.R. § 131.22(c).
        47 343 F.3d 449 (5th Cir. 2003).
        48 A “NOD.”
        49 See id. at 453-55. Title V of the Clean Air Act, the “CAA,” “requires major stationary

sources of air pollution, such as factories, to receive operating permits incorporating CAA
requirements and establishes a procedure for federal authorization of state-run Title V
permit programs. Title V permits do not impose additional requirements on sources but, to
facilitate compliance, consolidate all applicable requirements in a single document.” Id. at
453 (internal citation omitted). As is relevant here, “[a]fter the EPA approved a State's Title
V permit program, the EPA was to maintain an oversight role. The CAA provides that,
whenever the EPA makes a determination that a State is not adequately administering and
enforcing its permit program in accordance with Title V, it shall provide a notice of deficiency
(NOD) to the State. If the State does not correct the deficiency within 18 months, it faces
sanctions and, eventually, EPA takeover of its program.” Id. at 454 (internal citations
omitted).
        50 Id. at 464.
        51 Id. at 465; see also id. at 464-65.

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       The EPA argues that Public Citizen controls. We disagree. Given the
factual differences between the NOD process under the CAA and the necessity
determination mechanism under the CWA, our earlier decision is inapposite.
First, a NOD determination is explicitly premised on the determination by the
EPA that the state in question is not “adequately administering and enforcing”
its Title V permitting program. 52 Agency action, then, depends on a conclusion
that the state is failing to meet its statutory requirements, a finding that fits
comfortably within the ambit of an enforcement action. 53 By contrast, section
1313(c)(4)(B) of the CWA requires the EPA to issue new water quality
standards “in any case where the Administrator determines that a revised or
new standard is necessary to meet the requirements of this chapter.” 54 Under
a plain reading of this provision, the state need not do anything wrong for the
EPA to take action.           Further buttressing that conclusion is that the
immediately preceding clause, section 1313(c)(4)(A), requires the EPA to issue
a new standard “if a . . . water quality standard submitted by such State . . .
for such waters is determined by the Administrator not to be consistent with
the applicable requirements of this chapter.” 55 Here, the EPA must determine
that the state’s standards do not meet the federal requirements. An action to
correct that inadequacy could be termed an enforcement mechanism. But the
two sections are set off by the disjunctive “or,” which suggests that section
1313(c)(4)(B) does not require a finding of inadequacy, a feature more in line
with rulemaking.


       52 42 U.S.C. § 7661a(i)(2).
       53  Moreover, the CAA subsection setting out the NOD process is titled
“[a]dministration and enforcement.” 42 U.S.C. § 7661a(i). While the title of a statutory
section is not part of the law itself, and so does not control, it may be used as a guide to
determine the meaning of a provision. See, e.g., Griffin v. Steeltek, Inc., 160 F.3d 591, 594
n.4 (10th Cir. 1998). Here, the title suggests that the NOD provision is an enforcement tool.
       54 33 U.S.C. § 1313(c)(4)(B).
       55 Id. § 1313(c)(4)(A) (emphasis added).

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       Second, the consequences of noncompliance with the EPA’s actions differ
between these regulatory processes.                After issuing a NOD, the EPA “is
authorized to sanction the state if the deficiencies are not corrected within
eighteen months . . . . Possible sanctions include the loss of federal highway
funds and the application of strict emissions offset requirements for new
sources in certain areas within the state.” 56 These sanctions are essentially
punitive in nature, a marking of enforcement.                     By contrast, the CWA
authorizes no financial consequences for noncompliance.
       Finally, the procedures by which the agency actions occur are different.
With the CAA, after making a NOD determination, the agency must “provide
notice to the State” before imposing sanctions, 57 akin to a due process
requirement prior to punishment. With a CWA water quality standard, by
contrast, the EPA must “promptly prepare and publish proposed regulations,”
without any explicit requirement that it inform the affected states. 58 This
general notification process is a feature characteristically found in
rulemaking. 59 We conclude that the EPA has denied a rulemaking petition, an
action presumptively subject to judicial review.
                                              2.
       With this presumption in place, we turn to whether section 1313(c)(4)(B)
provides “no meaningful” or “no substantive” standards to apply. 60 We hold



       56  Ohio Pub. Interest Research Grp., Inc. v. Whitman, 386 F.3d 792, 794 (6th Cir. 2004)
(internal citation omitted) (citing 42 U.S.C. §§ 7661a(i)(1)-(2), 7509(b)(1)-(2)).
        57 42 U.S.C. § 7661a(i)(1). While the statutory language could have been more explicit,

it appears that notice to the state must occur before sanctions can be imposed. See Legal
Envtl. Assistance Found. v. U.S. E.P.A., 400 F.3d 1278, 1280 (11th Cir. 2005) (“The first step
in the enforcement process is the issuance of a notice of deficiency (‘NOD’) to a state.”).
        58 33 U.S.C. § 1313(c)(4).
        59 See, e.g., 5 U.S.C. § 553(b) (“General notice of proposed rule making shall be

published in the Federal Register.”).
        60 Webster v. Doe, 486 U.S. 592, 600 (1988) (quoting, first, Heckler v. Chaney, 470 U.S.

821, 830 (1985)).
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                                     No. 13-31214
that Congress has given sufficient guidance for judicial review of the agency’s
actions under the statute, and we have subject matter jurisdiction.
                                            a.
       An important qualification: our task is not to determine whether there
are adequate statutory standards to judge the EPA’s decision that new water
quality standards are or are not necessary. Rather, we must decide whether
Congress has placed sufficient guideposts around the EPA’s prerequisite
decision not to make a necessity determination. 61 These two inquiries are
related, however, and Massachusetts v. EPA provides insight as to how.
       There, the Court clarified the type of permissible response the EPA could
give after receiving a petition asking it to make a “judgment” that greenhouse
gases “cause, or contribute to, air pollution which may reasonably be
anticipated to endanger public health or welfare.” 62 The Court held that the
EPA was not obligated to make a judgment that such gases do or do not
contribute to climate change if “it provides some reasonable explanation as to
why it cannot or will not exercise its discretion to determine whether they
do.” 63 That explanation, in turn, must be “ground[ed] . . . in the statute.” 64 The
Court was not precise in specifying how tight the connection must be between
the underlying statute and the agency decision to decline to exercise its
discretion to make a prerequisite determination that it would or would not take
action under that statute.         It did, however, reject as inadequate several
explanations posited by the EPA, which provide us some useful guidance.




       61 Said differently, we are looking at the EPA’s decision not to make a decision.
       62 Massachusetts v. EPA, 549 U.S. 497, 532-33 (2007) (citing 42 U.S.C. § 7521(a)(1))
(brackets omitted).
       63 Id. at 533.
       64 Id. at 535; see also id. at 533 (“But once EPA has responded to a petition for

rulemaking, its reasons for action or inaction must conform to the authorizing statute.”).
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                                       No. 13-31214
       First, the Court rejected the EPA’s arguments that it could decline to
make a determination based on certain “policy judgments,” which included (1)
the presence of “voluntary Executive Branch programs [that] already provide
an effective response to the threat of global warming,” (2) the potential impact
of a determination on the President’s negotiations with foreign powers, and (3)
the fact that regulating automobiles would be “an inefficient, piecemeal
approach” to climate change. 65 Whatever the merits of these arguments, the
Court concluded, “they ha[d] nothing to do with whether greenhouse gas
emissions contribute to climate change.” 66 Second, the Court recognized that
scientific uncertainty could be an acceptable explanation for refusing to make
a threshold judgment. 67 If the agency wanted to rely on this explanation,
however, it had to be explicit about why it lacked “sufficient information . . . to
make an endangerment finding” – it could not merely “not[e] the uncertainty
surrounding various features of climate change.” 68 These examples suggest
that the court was looking for a close and specific linkage between the decision
not to make a threshold determination and the statutory provision setting out
the underlying choice. The agency cannot rely on alternative policy grounds,
even if reasonable, if those explanations do not find clear textual support. Nor
can it resort to general claims of scientific uncertainty – if it justifies its refusal
to make a threshold determination on that basis, it must be explicit about what
uncertainty is present.
       Justice Scalia’s dissent comports with this understanding. He criticized
the majority for its narrow definition of an acceptable “reasonable



       65Id. at 533 (internal citations omitted).
       66Id.
      67 See id. at 534.
      68 Id.; see also id. (“If the scientific uncertainty is so profound that it precludes EPA

from making a reasoned judgment as to whether greenhouse gases contribute to global
warming, EPA must say so.”).
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                                        No. 13-31214
explanation.” He focused on the distinction between the reasons the agency
can rely on when it makes such a judgment about air pollutants, and those it
can depend on when refusing to make a judgment – and concluded that the
latter category was much broader:
       When the Administrator makes a judgment whether to regulate
       greenhouse gases, that judgment must relate to whether they are
       air pollutants that “cause, or contribute to, air pollution which may
       reasonably be anticipated to endanger public health or welfare.”
       But the statute says nothing at all about the reasons for which the
       Administrator may defer making a judgment—the permissible
       reasons for deciding not to grapple with the issue at the present
       time. Thus, the various “policy” rationales that the Court criticizes
       are not “divorced from the statutory text,” except in the sense that
       the statutory text is silent, as texts are often silent about
       permissible reasons for the exercise of agency discretion. The
       reasons EPA gave are surely considerations executive agencies
       regularly take into account (and ought to take into account) when
       deciding whether to consider entering a new field: the impact such
       entry would have on other Executive Branch programs and on
       foreign policy. There is no basis in law for the Court's imposed
       limitation. 69
Justice Scalia, then, would have allowed the agency to put forward reasonable
explanations for not making threshold determinations that are not
inconsistent with the statute, rather than insisting upon an explicit textual
connection. That the majority rejected this reading suggests a tighter linkage
is required. 70


       69  Id. at 552 (Scalia, J., dissenting) (quoting 42 U.S.C. § 7521(a)(1)) (emphasis omitted)
(internal citations omitted).
        70 In WildEarth Guardians v. United States Environmental Protection Agency, 751

F.3d 649 (D.C. Cir. 2014), the D.C. Circuit upheld the EPA’s denial of a rulemaking petition
which declined to make a determination as to whether emissions from coal mines contribute
to air pollution. Id. at 652, 656. It justified this decision on the basis of resource constraints
that required it to make priorities about what regulatory priorities it focused on. Id. at 652-
53. The court affirmed these reasons under Massachusetts v. EPA, concluding that they were
“consistent with the statutory objective.” Id. at 655. This decision could be read to require a
less searching linkage than the Massachusetts v. EPA majority applied. However, even here,
the WildEarth court was able to point to specific statutory language, see id., which sets the
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                                      No. 13-31214
       Informed by this precedent, we conclude that the EPA’s reasons for
declining to make a necessity determination must be rooted in the words of
section 1313(c)(4)(B). And because the agency can only justify its decision not
to make a necessity determination based on factors identified in the language
of the statute, we look to those words to decide whether the statute is
sufficiently specific to allow judicial review.
                                            b.
       We turn back to the Clean Water Act and hold that the EPA has not
overcome the statutory presumption that we have subject matter jurisdiction
to review its denial of the plaintiffs’ rulemaking petition.
       We begin with the text. The EPA is required to publish new water
quality standards “in any case where the Administrator determines that a
revised or new standard is necessary to meet the requirements of [chapter 26
of title 33 of the United States Code.]” 71 Those statutory requirements are
further defined in the statute; for example, section 1313(c)(2)(A) defines the
necessary features of a water quality standard:
       Such standards shall be such as to protect the public health or
       welfare, enhance the quality of water and serve the purposes of
       this chapter. Such standards shall be established taking into
       consideration their use and value for public water supplies,
       propagation of fish and wildlife, recreational purposes, and
       agricultural, industrial, and other purposes, and also taking into
       consideration their use and value for navigation. 72




decision apart from Justice Scalia’s dissent, which relied primarily on statutory silence,
which could then be filled by the agency under Chevron v. National Resources Defense
Council, 467 U.S. 837 (1984). Massachusetts, 549 U.S. at 552-53 (Scalia, J., dissenting).
       71 33 U.S.C. § 1313(c)(4)(B). Title 33, Chapter 26 of the United States Code codifies

the Clean Water Act. See id. § 1251 et seq.
       72 Id. § 1313(c)(2)(A).

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                                       No. 13-31214
The EPA expanded upon these requirements in regulations issued pursuant to
the CWA. 73 While broadly drawn, these requirements provide guidance for the
types of considerations the EPA must take into account in deciding the
necessity of regulation. And, by Massachusetts v. EPA, these are the same
factors that must be considered when the EPA declines to make a necessity
determination.       As general factors are still reviewable factors, we cannot
conclude that there are no standards to judge the EPA’s decision to elect not to
make a necessity determination. 74
       The structure of section 1313(c)(4)(B), which employs mandatory
language, also suggests reviewability. There, Congress required regulation if
the EPA Administrator makes a “determin[ation]” that new standards are
necessary. In section 7521(a)(1), found reviewable by Massachusetts v. EPA,
the EPA Administrator had to regulate if she made a “judgment” that the
emission of greenhouse gases by motor vehicles causes or contributes to air
pollution. 75 Both statutes are structured the same way: the agency has a
mandatory obligation to take regulatory action if it makes a judgment (or
determination) that regulation is required. This is in contrast to provisions




       73 See 40 C.F.R. § 131.2 (“A water quality standard defines the water quality goals of
a water body, or portion thereof, by designating the use or uses to be made of the water and
by setting criteria necessary to protect the uses. States adopt water quality standards to
protect public health or welfare, enhance the quality of water and serve the purposes of the
Clean Water Act (the Act). ‘Serve the purposes of the Act’ (as defined in sections 101(a)(2)
and 303(c) of the Act) means that water quality standards should, wherever attainable,
provide water quality for the protection and propagation of fish, shellfish and wildlife and for
recreation in and on the water and take into consideration their use and value of public water
supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and
agricultural, industrial, and other purposes including navigation.”).
       74 Cf. Conservancy of Sw. Fla. v. U.S. Fish & Wildlife Serv., 677 F.3d 1073, 1082 (11th

Cir. 2012) (“We have held before that the absence of any applicable legal standard that limits
the agency’s discretion precludes APA review.”) (emphasis added).
       75 549 U.S. 497, 532-33 (2007) (citing 42 U.S.C. § 7521(a)(1)).

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                                       No. 13-31214
that other courts have found unreviewable that use exclusively discretionary
language, stating only that the agency “may” regulate, but need not do so. 76
       Nor does the overall structure of the Clean Water Act call this conclusion
into question. Both parties emphasize the fact that the CWA is a cooperative
federalism regime. The EPA argues that the CWA is a “carefully crafted
scheme of cooperative federalism” that would be “placed at risk” if the courts
were “to second-guess every EPA decision not to interfere with duly
promulgated State water quality standards.” The petitioners, in turn, focus on
the backstop role the federal government plays in setting standards when state
action is not enough, and argue that the Congressional intent of maintaining
federal involvement would be frustrated if there was no judicial review. While
both positions have merit, by the light of the required presumption of
reviewability, we conclude that petitioners’ argument carries more weight.
This statutory scheme is defined by federal action: as Justice White noted in a
different context, even though the CWA is a state-federal partnership, “the
Federal Government maintains an extraordinary level of involvement” in
administering the act. 77
       Finally, the subject matter of the CWA is also consistent with judicial
review.     Federal courts regularly hear cases addressing environmental
regulations, including those implicating federalism issues. 78 This case does


       76 See, e.g., Conservancy of Sw. Fla., 677 F.3d at 1083 (holding that the language in a
statutory provision that stated that “[c]ritical habitat may be established for those species
now listed as threatened or endangered” was unreviewable) (quoting 16 U.S.C. § 1532(5)(B)).
       77 U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 634 (1992) (White, J., concurring in part

and dissenting in part); see also id. (“EPA reviews state water quality standards. It retains
authority to object to the issuance of particular permits, to monitor the state program for
continuing compliance with federal directives, and even to enforce the terms of state permits
when the State has not instituted enforcement proceedings.”) (internal citations omitted).
       78 See generally, e.g., E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584

(2014) (federal regulation of interstate pollution); Massachusetts, 549 U.S. 497 (federal
regulation of greenhouse gases); Rapanos v. United States, 547 U.S. 715 (2006) (federal
regulation of navigable waters and wetlands).
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                                       No. 13-31214
not bring the sensitive national security issues of the genus that the Supreme
Court has held supports a determination that the actions taken are not
judicially cognizable. 79       Indeed, federal courts have reviewed or held
reviewable EPA decisions not to propose new or revised water quality
standards under section 1313(c)(4)(B). 80            While these reviews have been
deferential, by reviewing at all, those courts implicitly concluded that they had
subject matter jurisdiction. 81
       Given the text, structure, and subject matter of section 1313(c)(4), we
hold that the agency has not overcome the presumption in favor of
reviewability of agency action, and that we have jurisdiction to review the
EPA’s decision not to make a necessity determination.
                                             III.
       We now turn to whether the EPA had discretion to decide not to make a
necessity determination. The district court concluded that the agency lacked
such authority. 82 We do not agree.
       In Massachusetts v. EPA, the Court is explicit that the EPA could avoid
making a threshold determination (in that case, that greenhouse gases do not
contribute to climate change) “if it provides some reasonable explanation as to


       79  See, e.g., Webster v. Doe, 486 U.S. 592, 600-01 (1988).
       80  See, e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 293-94 (D.C. Cir. 1981)
(rejecting challenge which argued that EPA had unreasonably “fail[ed] to propose revised or
new water quality standard,”); Nat’l Wildlife Fed’n v. Browner, Civ. A. No. 95-1811, 1996 WL
601451, at *6 (D.D.C. Oct. 11, 1996) (“[S]uch a discretionary decision is not committed to the
agency as a matter of law, and EPA’s failure to exercise its discretion under 33 U.S.C. §
1313(c)(4)(B) could be subject to a proper challenge under the APA.”), aff’d 127 F.3d 1126
(D.C. Cir. 1997).
        81 But see Mo. Coalition for the Env’t Found. v. Jackson, 853 F. Supp. 2d 903, 910-12

(W.D. Mo. 2012) (holding that the decision not to exercise discretionary authority under
section 1313(c)(4)(B) is committed to agency discretion by law).
        82 See Gulf Restoration Network v. Jackson, No. 12-677, 2013 WL 5328547, at *6 (E.D.

La. Sept. 20, 2013) (reading Massachusetts v. EPA to hold that “EPA lacks the discretion to
simply decline to make the threshold determination in response to a rulemaking petition
even where the statutory text does not explicitly require it to do so.”).
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                                       No. 13-31214
why it cannot or will not exercise its discretion to determine whether they
do.” 83 In dissent, Justice Scalia explicitly recognized that the majority held
that the EPA could decline to make a prerequisite determination:
       [T]he Court invents a multiple-choice question that the EPA
       Administrator must answer when a petition for rulemaking is
       filed. The Administrator must exercise his judgment in one of three
       ways: (a) by concluding that the pollutant does cause, or contribute
       to, air pollution that endangers public welfare (in which case EPA
       is required to regulate); (b) by concluding that the pollutant does
       not cause, or contribute to, air pollution that endangers public
       welfare (in which case EPA is not required to regulate); or (c) by
       “provid[ing] some reasonable explanation as to why it cannot or
       will not exercise its discretion to determine whether” greenhouse
       gases endanger public welfare, (in which case EPA is not required
       to regulate). 84
       We recognize that the language of the CWA and that of the CAA is not
identical. However, the CAA section at issue in Massachusetts and the CWA
provision at issue here have the same structure: (1) a mandatory clause
requiring the EPA Administrator to issue regulations on a certain topic, (2) if
she makes a specific threshold determination, using her bounded discretion,
(3) that a substantive standard has been satisfied. 85                  We hold that the
Massachusetts v. EPA “reasonable explanation” rule applies to section



       83  Massachusetts, 549 U.S. at 533. That explanation must be grounded in the statute.
See id. at 535 (“We hold only that EPA must ground its reasons for action or inaction in the
statute.”).
        84 Id. at 550 (Scalia, J., dissenting) (emphasis omitted) (quoting id. at 533 (majority

op.)).
        85 Compare 42 U.S.C. § 7521(a)(1) (“The Administrator shall by regulation prescribe

(and from time to time revise) in accordance with the provisions of this section, standards
applicable to the emission of any air pollutant from any class or classes of new motor vehicles
or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution
which may reasonably be anticipated to endanger public health or welfare.”) (CAA), with 33
U.S.C. § 1313(c)(4)(B) (“The Administrator shall promptly prepare and publish proposed
regulations setting forth a revised or new water quality standard for the navigable waters
involved . . . in any case where the Administrator determines that a revised or new standard
is necessary to meet the requirements of this chapter.”) (CWA).
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                                       No. 13-31214
1313(c)(4)(B), and that the EPA may decline to make a necessity determination
if it provides an adequate explanation, grounded in the statute, for why it has
elected not to do so. 86
       The district court ordered the “EPA to conduct a necessity determination
in response to Plaintiffs’ rulemaking petition.” 87 Because the agency had the
option of declining to make a necessity determination, this order was error.
We remand this case to the district court to decide in the first instance whether
the EPA’s explanation for why it declined to make a necessity determination
was legally sufficient.
       In doing so, the district court must bear in mind several principles. First,
the court applies the arbitrary and capricious standard of review set out in the
APA. 88 “As applied to refusals to initiate rulemakings, this standard is ‘at the




       86  In so holding, we join other courts who have applied Massachusetts to similarly
structured statutes and concluded that the agency is not required to make a predicate
threshold finding. See, e.g., WildEarth Guardians v. U.S. E.P.A., 751 F.3d 649, 655 (D.C. Cir.
2014) (holding that agency had discretion to decide when to add categories of stationary
sources “to the list of regulated air pollutants”); Natural Res. Def. Council v. U.S. Food &
Drug Admin., 760 F.3d 151, 191 (2d Cir. 2014) (Katzmann, C.J., dissenting) (“The statute
construed in Massachusetts v. EPA was just like the statute at issue here – part discretionary
(as to the agency’s ‘judgment’), and part mandatory (as to the ensuing regulation). Indeed,
the Court recognized in its opinion that the EPA was not necessarily required to take any
action beyond adequately responding to the citizen petition.”). But see Ctr. for Biological
Diversity v. U.S. E.P.A., 794 F. Supp. 2d. 151, 162 (D.D.C. 2011) (holding that the structure
of a provision of the CAA “strongly suggest that Congress intended the predicate
endangerment finding to be a compulsory step”).
        87 Gulf Restoration Network, 2013 WL 5328547, at *7.
        88 See 5 U.S.C. § 706(2)(A) (requiring a reviewing court to “hold unlawful and set aside

agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law”); see also New York v. U.S. Nuclear
Regulatory Comm’n, 589 F.3d 551, 554 (2d Cir. 2009) (applying arbitrary and capricious
standard to denial of rulemaking petition); EMR Network v. F.C.C., 391 F.3d 269, 272-73
(D.C. Cir. 2004) (same). In Massachusetts v. EPA, the Court applied the arbitrary and
capricious standard found in the CAA’s judicial review provision to the agency’s refusal to
make a threshold determination. 549 U.S. at 534 (citing 42 U.S.C. § 7607). This provision is
subject to the same standard of review as the APA. Catawba Cnty, N.C. v. E.P.A., 571 F.3d
20, 41 (D.C. Cir. 2009).
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                                       No. 13-31214
high end of the range’ of deference,” 89 and “such review is ‘extremely limited’
and ‘highly deferential.’” 90 Second, in deciding whether the EPA appropriately
declined to make a necessity decision, the district court’s review is limited to
determining whether the EPA has “provide[d] some reasonable explanation as
to why it cannot or will not exercise its discretion” to make a necessity
determination. 91 That explanation must be grounded in the statute. 92
       In light of this highly deferential standard of review, the agency’s burden
is slight. That is particularly true when the statute is as broadly written as
section 1313(c)(4)(B).         Moreover, when a statute sets out competing
considerations, agencies are generally given discretion to choose how to best
give effect to those mandates. 93 Nonetheless, we leave it to the capable hands
of the district court to determine in the first instance the propriety of the EPA’s
actions.
                                             IV.
       We VACATE the order of the district court requiring the EPA to make a
necessity determination and REMAND this case for proceedings consistent
with this opinion.



       89  EMR Network, 391 F.3d at 273 (quoting Am. Horse Protection Ass’n, Inc. v. Lyng,
812 F.2d 1, 4-5 (D.C. Cir. 1987)); see also Preminger v. Sec’y of Veterans Affairs, 632 F.3d
1345, 1353 (Fed. Cir. 2011) (same); Int’l Union v. Chao, 361 F.3d 249, 254-55 (3d Cir. 2004)
(same).
        90 Massachusetts, 549 U.S. at 527-28 (quoting Nat’l Customs Brokers & Forwarders

Ass’n. of Am. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989)). National Customs Brokers,
favorably cited by Massachusetts v. EPA, and written by then-Judge Ginsburg, held that the
court “will overturn an agency’s decision not to initiate a rulemaking only for compelling
cause, such as plain error of law or a fundamental change in the factual premises previously
considered by the agency.” Nat’l Customs Brokers, 883 F.2d at 96-97.
        91 Massachusetts, 549 U.S. at 533.
        92 Id. at 535.
        93 See WildEarth Guardians v. U.S. E.P.A., 751 F.3d 649, 654-55 (D.C. Cir. 2014)

(interpreting CAA provision to “afford[] agency officials discretion to prioritize sources that
are the most significant threats to public health to ensure effective administration of the
agency’s regulatory agenda”).
                                             24
