 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 12, 2011                      Decided July 1, 2011

                         No. 10-1056

          NATURAL RESOURCES DEFENSE COUNCIL,
                      PETITIONER

                              v.

           ENVIRONMENTAL PROTECTION AGENCY,
                     RESPONDENT

          AMERICAN CHEMISTRY COUNCIL, ET AL.,
                    INTERVENORS


          On Petition for Review of a Final Action
          of the Environmental Protection Agency



     Paul Cort argued the cause for petitioner. With him on
the briefs was Deborah Reames.

     Stephanie J. Talbert, Attorney, U.S. Department of
Justice, argued the cause for respondent. With her on the brief
were John C. Cruden, Deputy Assistant Attorney General and
Sara Schneeberg, Attorney, U.S. Environmental Protection
Agency. Thomas A. Lorenzen, Attorney, U.S. Department of
Justice, entered an appearance.
                              2
    Barbara Baird argued the cause for intervenor South
Coast Air Quality Management District. With her on the brief
was Kurt R. Wiese.

    Leslie Sue Ritts, Claudia M. O'Brien, Charles H. Knauss,
Sandra P. Franco, Thomas G. Echikson, Rachel D. Gray, and
Adam J. White were on the brief for intervenors for
respondent American Chemistry Council, et al. Richard P.
Sobiecki and Stacey L. VanBelleghem entered an appearance.

    Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge TATEL.

     TATEL, Circuit Judge: Yet again we face a challenge to
the Environmental Protection Agency’s regulation of ozone
under the Clean Air Act. At issue this time is an EPA
“guidance document” addressing obligations of regions still in
nonattainment of a now-revoked ozone air quality standard.
Petitioner argues that the Guidance amounts to a legislative
rule issued in violation of the Administrative Procedure Act’s
notice and comment requirement and that its substantive
content is contrary to law. Firing nearly all the arrows in its
jurisdictional quiver, EPA argues that petitioner lacks
standing, that the Guidance does not qualify as final agency
action, and that petitioner’s claims are unripe for judicial
review. As we explain in this opinion, all three arrows miss
their target. On the merits, we conclude that the Guidance
qualifies as a legislative rule that EPA was required to issue
through notice and comment rulemaking and that one of its
features—the so-called attainment alternative—violates the
Clean Air Act’s plain language. We therefore grant the
petition for review and vacate the Guidance.
                               3
                               I.
     The Clean Air Act requires EPA to establish national
ambient air quality standards (NAAQS) for certain criteria
pollutants, including ozone. 42 U.S.C. § 7409(a). Regions in
nonattainment of those standards are subject to “additional
restrictions over and above the [Act’s] implementation
requirements.” Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 476 (2001). These additional restrictions appear in Title
I, Part D of the Act. “Subpart 1 contains general
nonattainment regulations that pertain to every pollutant for
which a NAAQS exists. . . . Subpart 2, added by the Clean Air
Act Amendments of 1990, addresses ozone.” Id. (internal
citations omitted). That latter subpart classifies nonattainment
areas as either “marginal,” “moderate,” “serious,” “severe,” or
“extreme,” 42 U.S.C. § 7511(a)(1), giving areas with worse
air quality extra time to come into compliance in exchange for
imposing more stringent standards. Id. (listing classifications
and attainment dates). Subpart 2 also contains provisions
designed to encourage these regions to meet their deadlines.
Central to this case, one of those provisions, section 185,
directs states to impose fees on all major stationary sources in
severe and extreme nonattainment areas that miss their
deadlines. Id. § 7511d(a). Under section 185, such states must
submit implementation plans, and if a state fails to do so, EPA
must collect the fees itself. Id. § 7511d(a), (d). In addition,
states failing to submit adequate implementation plans may
incur penalties, including loss of federal highway funding. Id.
§ 7509(b)(1).

     Until 1997, EPA had in place a 1-hour ozone NAAQS
prohibiting average hourly concentrations from exceeding .12
parts per million. The 1990 amendments, including the table
specifying nonattainment classifications and attainment
deadlines, incorporate that 1-hour standard. Id. § 7511(a)(1).
In 1997, however, EPA found the 1-hour standard insufficient
                               4
to “protect the public health,” id. § 7409(b), and so
promulgated an 8-hour standard of .08 parts per million.
National Ambient Air Quality Standards for Ozone: Final
Rule, 62 Fed. Reg. 38,856, 38,863 (July 18, 1997) (codified at
40 C.F.R. pt. 50) (“1997 Ozone Rule”). Because the .12 parts
per million 1-hour standard roughly corresponds to a .09 parts
per million 8-hour standard, the revision changed not only
“the measuring stick [but also] the target.” S. Coast Air
Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 892 (D.C. Cir.
2006). Overall, the 8-hour standard is more protective of
public health and “generally even more effective in limiting
1-hour exposures . . . than is the . . . 1-hour standard.” 1997
Ozone Rule, 62 Fed. Reg. at 38,863. That said, EPA
acknowledged that “it is possible that an 8-hour standard
alone could allow for high 1-hour exposures of concern.” Id.
Accordingly, to ease the transition to the new standard, EPA
determined that the requirements of Subpart 2, including
section 185, would apply only to nonattainment under the 1-
hour standard, which would remain in place until all areas
achieved attainment. Id. at 38,873. The 8-hour standard would
be implemented only under Subpart 1, a part of the statute that
leaves EPA substantial regulatory flexibility.

     Reviewing the 1997 rule in Whitman v. American
Trucking Ass’ns, the Supreme Court observed that even
though Subpart 2 expressly relies on the 1-hour standard, EPA
remained free to revise the NAAQS. 531 U.S. at 484. Given
this, the Court recognized that the statute left several gaps for
EPA to fill as it implemented revised NAAQS. Id. at 483–84
(identifying three specific gaps related to classification and
attainment deadlines). The Court nonetheless held that EPA’s
exemption of the 8-hour standard from the Subpart 2
requirements violated the statute. Id. at 484–86. According to
the Court, Congress intended Subpart 2 to “eliminate[] [the]
regulatory discretion” that Subpart 1 allowed and that EPA’s
                               5
reading was impermissible because it “render[ed] Subpart 2’s
carefully designed restrictions on EPA discretion utterly
nugatory.” Id. at 484. “A plan reaching so far into the future,”
the Court explained, “was not enacted to be abandoned the
next time the EPA reviewed the ozone standard.” Id. at 485.

     Following American Trucking, EPA tried again to
reconcile Subpart 2 with the new 8-hour standard. See Final
Rule to Implement the 8-Hour Ozone National Ambient Air
Quality Standard—Phase 1, 69 Fed. Reg. 23,951 (Apr. 30,
2004) (codified at 40 C.F.R. pts. 50, 51, 81). In a 2004
rulemaking, the agency determined that Subpart 2 would
apply only to areas in nonattainment of both the 1-hour and
the 8-hour standards, but that the 1-hour standard would be
withdrawn in full one year after the 8-hour standard’s
effective date. Pursuant to this new scheme, 76 of the 122
then-non-attaining areas would be subject only to Subpart 1.
S. Coast, 472 F.3d at 892. Addressing one of the gaps the
Supreme Court identified in American Trucking—relating to
regional classification under the 8-hour standard—EPA noted
that because net air quality had improved since 1990, some
areas would have a lower classification under the 8-hour
standard than they had had under the 1-hour standard. Id. at
890. For instance, although Baton Rouge had been a severe
nonattainment area under the 1-hour standard, it was in only
marginal nonattainment of the 8-hour standard. See id. at 899.
Rather than allow such regions to loosen existing
implementation standards, EPA interpreted section 172(e)—a
Subpart 1 “anti-backsliding” provision that applies “[i]f the
administrator relaxes a [NAAQS],” 42 U.S.C. § 7502(e)
(emphasis added)—to apply as well where NAAQS were
made more stringent. See Final Rule to Implement the 8-Hour
Ozone National Ambient Air Quality Standard—Phase 1, 69
Fed. Reg. at 23,972 (concluding that Congress intended “that
such controls not be weakened where the NAAQS is made
                               6
more stringent”). Section 172(e) provides that where EPA
relaxes a NAAQS, it “shall . . . promulgate requirements
applicable to all areas which have not attained that standard as
of the date of such relaxation. Such requirements shall
provide for controls which are not less stringent than the
controls applicable to areas designated nonattainment before
such relaxation.” 42 U.S.C. § 7502(e). Accordingly, the 2004
Rule announced that Subpart 2 “applicable controls” had to
remain in place for areas that had been in nonattainment under
the 1-hour standard and were in attainment or a lower
classification of nonattainment under the 8-hour standard. S.
Coast, 472 F.3d at 890. For Baton Rouge, for instance,
controls applicable to severe nonattainment regions would
continue to apply despite the fact that the city qualified as a
marginal nonattainment area under the new standard. Sorting
through the various Subpart 2 provisions, EPA determined
that some were applicable controls and others, including
section 185 fees, were not. Id.

     In South Coast Air Quality Management District v. EPA,
we rejected a challenge to EPA’s withdrawal of the 1-hour
standard but vacated the portions of the rule exempting areas
in nonattainment of only the 8-hour standard from Subpart 2
strictures. Id. at 892–95. At the least, we held, Subpart 2 must
apply for areas with 8-hour concentrations exceeding .09 parts
per million, the 8-hour equivalent of the 1-hour standard on
which Congress relied in enacting Subpart 2. Id. at 892–94.
For areas with 8-hour concentrations between .08 parts per
million (the new standard) and .09 parts per million, we found
that EPA’s sole reason for excluding these areas from Subpart
2—to create regulatory flexibility and thus “maximize its own
discretion”—contradicted the “clear intent of Congress.” Id.
at 894–95. We also concluded that although EPA’s
interpretation of section 172(e) was reasonable, the same
could not be said for its exclusion of section 185 fees from
                               7
“applicable controls.” Id. at 900, 902–03. We explained: “[a]s
Congress set the penalty deadline well into the future, giving
states and industry ample notice and sufficient incentives to
avoid the penalties, they were ‘applicable’ before they were
actually imposed . . . , [and] [b]ecause these penalties were
designed to constrain ozone pollution, they are controls that
section 172(e) requires to be retained.” Id. at 903. Responding
to EPA’s argument that enforcement would be impractical
because the penalty calculation relied on the no-longer-
measured 1-hour standard, we warned that “section 172(e)
does not condition its strict distaste for backsliding on EPA’s
determinations of expediency; EPA must determine its
procedures after it has identified what findings must be made
under the Act.” Id. In sum, we ruled that pursuant to section
172(e)’s anti-backsliding principles, an area subject to section
185 penalties due to its classification under the now-defunct
1-hour standard must apply those penalties as an “applicable
control” if the area missed its attainment deadline under the
1-hour standard.

     Now before us is EPA’s latest attempt to reconcile the 8-
hour standard with Subpart 2. This time its effort relates only
to the application of section 185 fees to the eight regions in
severe or extreme nonattainment of the 1-hour standard:
Baltimore, Baton Rouge, Houston, New York City,
Sacramento, the San Joaquin Valley, the South Coast Air
Basin (CA), and the Southeast Desert (CA). Because
attainment deadlines for the eight regions have now expired,
all are in the process of developing section 185
implementation plans. Faced with the prospect of hefty fees,
industry groups complained to EPA that because they already
had in place the best available emission control technology,
they could reduce emissions and thus avoid fees only by
cutting production. Report of the US EPA Clean Air Act
Advisory Committee Task Force on Section 185 of the Clean
                                8
Air Act 3 (May 12, 2009) (included at J.A. 56). Moreover,
they asserted, because section 185 set such a low emissions
threshold for major stationary sources, the fees would apply to
many small businesses, as well as to hospitals and schools. Id.
at 4. Lastly, they alleged that stationary sources contribute far
less to overall air pollution today than they did in 1990 and
face far higher marginal costs for further reduction than do
mobile sources. Id. at 3.

     To address these concerns, the Clean Air Act Advisory
Committee, a body created by the 1990 Amendments to
advise EPA on scientific and industry developments relevant
to rule making, established a task force that generated a list of
section 185 alternatives including shifting costs to mobile
sources and implementing market-based programs.
Environmental organizations participating in the task force
submitted an “Alternative Opinion” criticizing the policy
rationales of the industry groups and asserting that the statute
allowed no alternatives. The Committee submitted the task
force report to EPA along with the following question: “Is it
legally permissible under either section 185 or 172(e) for a
State to exercise the discretion identified in [the options listed
in this letter]?” Letter from Eddie Terrill & Robert Wyman,
Co-chairs of the Section 185 Task Force, to Elizabeth Craig,
Acting Assistant Administrator, Office of Air & Radiation
(May 16, 2009) (“Task Force Letter”) (included at J.A. 51).

     In response, EPA issued a “Guidance” document aimed
at Regional Air Division Directors—the agency officials
directly responsible for implementation plan approval. That
January 5, 2010, document explains to Directors that

       [i]n the implementation rule for the 1997
       ozone NAAQS, EPA determined that although
       section 172(e) does not directly apply where
                               9
       EPA has strengthened the NAAQS, as it did in
       1997, it was reasonable to apply the same
       principle for the transition from the 1-hour
       NAAQS to the 1997 8-hour NAAQS. As part
       of applying the principle in section 172(e) for
       purposes of the transition from the 1-hour
       standard to the 1997 8-hour standard, EPA can
       either require states to retain programs that
       applied for purposes of the 1-hour standard, or
       alternatively can allow states flexibility to
       adopt alternative programs, but only if such
       alternatives are ‘not less stringent’ than the
       mandated program.

Memorandum from Stephen D. Page, Director, Office of Air
Quality Planning & Standards to Regional Air Division
Directors 3 (Jan. 5, 2010) (“Fee Program Guidance”)
(included at J.A. 66). In other words, EPA believes 1-hour
nonattainment areas have flexibility to choose between the
statutorily mandated program and an equivalent—i.e., the
program alternative.

     In addition to that alternative, the Guidance explains,
regions attaining either the 1-hour or the 8-hour standard can
avoid section 185 fees through an “attainment alternative.”
Specifically, in such regions the existing 8-hour
implementation controls would qualify as a “not less
stringent” alternative to section 185 fees. Id. at 3–4. In other
words, a region satisfying the 8-hour standard would have no
obligation to pay section 185 fees even though it remained in
nonattainment of the 1-hour standard. The Guidance sets forth
two justifications for the attainment alternative. First, “it
would unfairly penalize sources in these areas to require that
fees be paid after an area has attained the 8-hour standard due
to permanent and enforceable emission reductions because the
                              10
fees were imposed due to a failure to meet the applicable
attainment deadline for the 1-hour standard, not any failure to
achieve the now applicable 8-hour standard by its attainment
date.” Id. at 4. Second, because EPA no longer redesignates
areas under the 1-hour standard, “relief from the 1-hour fee
program requirements under the terms of the statute is an
impossibility, since the conditions the statute envisioned for
relieving an area of its fee program obligation”—
reclassification as in attainment of the 1-hour standard—“no
longer can exist.” Id.

     As to both the program and attainment alternatives, the
Guidance explains that approval of individual alternatives
would occur on a case-by-case basis. Specifically, if after
preliminarily assessing a proposal, EPA were to find the
alternative satisfactory, it would proceed with notice and
comment to finalize that finding. Id. at 3.

     On March 5, 2010, the Natural Resources Defense
Council (NRDC) filed a petition for review of the Guidance
pursuant to Clean Air Act section 307(b)(1), which gives this
court exclusive jurisdiction over challenges to final EPA
actions. 42 U.S.C. § 7607(b)(1). NRDC argues that EPA
violated the Administrative Procedure Act by issuing the
Guidance without notice and comment and that both the
program and attainment alternatives violate the Clean Air Act.
In response, EPA argues that NRDC lacks standing, that the
Guidance fails to qualify as final agency action, and that
NRDC’s challenges are unripe for review. On the merits, EPA
contends that the Guidance is either a policy statement or an
interpretive rule and, in either case, is exempt from the notice
and comment requirement. It also defends both alternatives as
permissible exercises of statutory gapfilling. Numerous
industry groups and the South Coast Air Quality Management
District have intervened in support of EPA.
                              11
                              II.
     NRDC argues that it has “organizational standing” due to
alleged injuries suffered by two of its members. Sierra Club v.
EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (listing three
requirements of organizational standing, only one of which—
that at least one member would have standing to sue in her
own right—is at issue in this case); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (to
demonstrate that a member would have standing to sue in her
own right, the organization must establish that she has
suffered injury, caused by the defendant’s action, and
redressable through this claim). Both members live in 1-hour
nonattainment areas (one in the Houston area, which has an
attainment deadline of November 15, 2007, and the other in
the San Joaquin Valley, which has a deadline of November
15, 2010), and both assert that local ambient ozone levels
have adversely affected their health and forced them to reduce
time they spend outside. See Marilyn McGill Aff. ¶¶ 2, 6;
Gaylee Amend Aff. ¶¶ 2, 6–8; see also 42 U.S.C. §
7511(a)(1); Approval and Promulgation of Implementation
Plans; Texas; Houston/Galveston Nonattainment Area;
Ozone, 66 Fed. Reg. 57,160 (Nov. 14, 2001) (codified at 40
C.F.R. pt. 52) (approving plan for Houston, a severe
nonattainment area, to achieve attainment by 2007); Clean Air
Act Reclassification; San Joaquin Valley Nonattainment Area,
69 Fed. Reg. 20,550 (Apr. 16, 2004) (codified at 40 C.F.R. pt.
81) (reclassifying the San Joaquin Valley as an extreme
nonattainment area and therefore pushing the attainment
deadline to 2010 from 2005). According to NRDC, the
Guidance exacerbates these injuries by delaying or
suspending future air quality improvements. Any such effect,
EPA counters, is purely hypothetical because it may never
approve an alternative.
                              12
     In our view, the Guidance injures NRDC’s members in
three independent ways. First, the Guidance caused several
nonattainment areas, including Houston and the San Joaquin
Valley, to abandon plans to submit section-185-compliant
implementation plans, thus delaying, at the very least,
implementation of section 185, which in turn delays the
reduction of ambient ozone and harms NRDC members. See
Elena Craft Aff. ¶¶ 7–9; Sarah Jackson Aff. ¶¶ 6–12. Second,
even in the San Joaquin Valley, where the attainment deadline
had not yet passed at the time NRDC filed this petition, the
Guidance had a present, concrete effect because it eliminated
section 185’s powerful incentive for major stationary sources
to reduce emissions before the deadline. See S. Coast, 472
F.3d at 903 (explaining that even where a nonattainment
deadline has yet to pass, section 185 is currently applicable
because it incentivizes emission reductions before fees are
implemented). Third, because the Guidance replaces a
brightline section 185 requirement with a flexible standard, it
is likely to result in lengthier rulemaking processes. And
because an order vacating the Guidance would require
Houston and the San Joaquin Valley to submit section-185-
compliant state implementation plans (or, if they failed to do
so, because EPA itself would be obligated to implement
section 185, see 42 U.S.C. § 7511d(d)), these injuries are all
redressable. See Recording of Oral Arg. at 31:05–09 (counsel
for EPA clarifying that were we to vacate the Guidance,
nonattainment regions would remain obligated to submit SIPs
under existing deadlines and would not receive extensions
related to future rulemakings); Lujan, 504 U.S. at 562
(explaining that where “a plaintiff’s asserted injury arises
from the government’s allegedly unlawful regulation [of a
third party]” the critical question is how the third party would
respond to an order declaring the government’s action illegal).
                              13
     EPA nonetheless insists that the Guidance causes no
injury because any approved alternative program will, by
definition, be “not less stringent” than section 185 fees. Of
course, this argument carries absolutely no weight with
respect to the attainment alternative for which the Guidance
requires no equivalency analysis. The argument is also
unpersuasive with respect to the program alternative. To
begin with, it is possible that a plan EPA might legitimately
find equivalent to a section 185 penalty (and which we would
thus uphold on the merits) could nonetheless be so
meaningfully different as to cause cognizable Article III
injury. In any event, even assuming that a resulting program
were perfectly equivalent, the delay in improving air quality
would still injure NRDC members. EPA’s argument also
proves far too much. Were EPA to prevail, although NRDC
might well have standing to bring an as-applied challenge to
any particular “not less stringent” determination, no one
would have standing to challenge EPA’s authority to allow
alternatives in the first place. Especially given that Congress
enacted Subpart 2 for the very purpose of curtailing EPA
discretion, see Am. Trucking, 531 U.S. at 484–86, it would be
ironic indeed if the application of standing doctrine allowed
EPA to effectively maintain that very discretion. Neither
precedent nor logic requires us to adopt such a
counterintuitive approach to standing.

     The next two jurisdictional issues—finality and
ripeness—turn on the same question: whether the Guidance
announces a binding change in the law. Bennett v. Spear, 520
U.S. 154, 177–78 (1997) (explaining that to be final, the
action must (1) “mark the consummation of the agency’s
decisionmaking process,” and (2) “be one by which rights or
obligations have been determined, or from which legal
consequences will flow” (internal quotation marks omitted));
Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)
                              14
(identifying finality as a necessary feature of fitness for
review). It did. Prior to issuing the Guidance, neither the
statute nor EPA regulations nor case law authorized EPA
regional directors to approve implementation plans containing
alternatives to section 185 fees. Conceding as much with
respect to regulations and case law, EPA argues that section
172(e) expressly authorizes alternatives in this specific
context. We disagree. Although section 172(e) does allow
EPA to sanction alternatives where it relaxed the NAAQS,
nothing in the statute expressly addresses situations where, as
here, EPA strengthened the NAAQS. Accordingly, while
section 172(e) expressly contemplates alternatives, its
application in this context requires interpretation—a point
EPA acknowledges elsewhere when it asserts that “there is a
gap in the statute that the EPA must fill.” Resp’t’s Br. 34.
This is all the more so with respect to the attainment
alternative: because section 172(e) protects against
backsliding from an old standard, nothing in it hints that a
state could escape from its strictures by satisfying a new
standard.

     EPA insists that the Guidance changed nothing because
prior to its issuance, a regional director could have considered
an alternative. Perhaps so, but that director also retained
discretion, now withdrawn by the Guidance, to reject the
alternative solely for failing to comply with section 185.
Indeed, this is essentially what happened when the San
Joaquin Valley Unified Air Pollution Control District
submitted a section 185 plan that exempted certain major
stationary sources. After notice and comment, EPA rejected
the plan for failure to comply with section 185, explaining
that because San Joaquin never characterized the plan as an
alternative, EPA had no need to “take a final position
regarding whether it could approve a substitute program for
the program specified under [Clean Air Act] section 185.”
                              15
Revisions to the California State Implementation Plan, San
Joaquin Valley United Air Pollution Control District, 75 Fed.
Reg. 1716, 1717–18 (Jan. 13, 2010). In other words, had San
Joaquin asked EPA to treat its proposal as an alternative, the
regional director might have performed an equivalency
analysis or determined that alternatives were categorically
unacceptable. Post-Guidance, however, the director may no
longer reject a plan on the latter ground. The permissibility of
alternatives is now a closed question, and the Guidance leaves
to future rulemakings only the issue of whether a specific
proposed alternative satisfies the program or attainment
option.

     The Guidance’s language supports the conclusion that
EPA has definitively interpreted section 172(e) as permitting
alternatives. The Guidance explains that “EPA is electing to
consider alternative programs to satisfy the section 185 fee
program [implementation plan] revision requirement,” and the
document announces that “[i]f [EPA’s] preliminary
assessment indicates that the alternative program is not less
stringent, we would issue a notice in the Federal Register
proposing to make such a determination.” Fee Program
Guidance at 3. By contrast, with regard to approvability of
individual plans, the document expressly reserves discretion
for future administrative action: “The remainder of this
memorandum describes the circumstances under which we
believe we can approve an alternative program that is ‘no less
stringent.’ These interpretations will only be finalized through
. . . notice-and-comment rulemaking to address the fee
program obligations associated with each applicable
nonattainment area.” Id.

     In sum, then, the Guidance altered the legal regime by
resolving the question posed by the Clean Air Act Advisory
Committee: “Is it legally permissible under either section 185
                              16
or 172(e) for a State to exercise the discretion identified in
[the options listed in this letter]?” Task Force Letter.
Answering that question affirmatively, the Guidance binds
EPA regional directors and thus qualifies as final agency
action. Bennett, 520 U.S. at 177–78; see also Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1020–23 (D.C. Cir. 2000)
(explaining that for the purposes of finality, it is irrelevant
how the interpretation will apply to any individual state’s SIP-
approval process). Moreover, because the Guidance is final,
and because the issue raised by NRDC is purely legal, the
question before us is fit for judicial review. See Cement Kiln
Recycling Coal. v. EPA, 493 F.3d 207, 215 (D.C. Cir. 2007)
(“[A] purely legal claim in the context of a facial challenge is
presumptively reviewable.” (internal quotations marks and
ellipses omitted)); see also Abbott Labs., 387 U.S. at 149
(describing the fitness requirement). And because “Congress
has emphatically declared a preference for immediate review”
with respect to Clean Air Act rulemaking, we have no need to
consider the ripeness test’s second element, namely, the
hardship to the parties of withholding review. Cement Kiln
Recycling Coal., 493 F.3d at 215; see also Natural Res. Def.
Council v. EPA, 22 F.3d 1125, 1133 (D.C. Cir. 1994) (finding
such congressional intent in the sixty day time limit in the
Clean Air Act judicial review provision—the same provision
governing review in this case—and concluding, therefore, that
the court need not consider hardship).

                              III.
     Given that the Guidance document changed the law, the
first merits question—whether the Guidance is a legislative
rule that required notice and comment—is easy. See 5 U.S.C.
§ 553 (requiring that legislative rules, but not policy
statements or interpretive rules, be issued only after notice
and comment). To begin with, because the Guidance binds
EPA regional directors, it cannot, as EPA claims, be
                               17
considered a mere statement of policy; it is a rule. Syncor Int’l
Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (“[P]olicy
statements are binding on neither the public nor the agency.”
(internal citation omitted)); see also Cement Kiln Recycling
Coal., 493 F.3d at 226 & n.14 (finding that the inquiries into
whether the agency action was final and whether the agency
action was a rule were essentially the same). Moreover,
contrary to EPA’s alternative argument, this rule is not
interpretive; it is legislative. As we explained above, nothing
in the statute, prior regulations, or case law authorizes EPA to
accept alternatives to section 185. Likewise, nothing prior to
the Guidance entitled a state to have EPA evaluate a proposed
alternative for equivalency rather than reject it outright.
Accordingly, the Guidance qualifies as a legislative rule that
EPA had no authority to issue without notice and comment.
See Am. Mining Cong. v. Mine Safety & Health Admin., 995
F.2d 1106, 1112 (D.C. Cir. 1993) (stating that where “in the
absence of the rule there would not be an adequate legislative
basis for enforcement action or other agency action to confer
benefits or ensure the performance of duties,” the rule is
legislative).

     Having concluded that EPA issued the Guidance in
violation of the Administrative Procedure Act’s notice and
comment requirement, we could simply vacate and end this
opinion. NRDC, however, urges us to resolve its substantive
claims, arguing that “a ruling on these questions is in the
interest of judicial and administrative economies.” Pet’r’s Br.
26. Our case law provides little direction on whether, having
determined to vacate on procedural grounds, we should
nonetheless address substantive claims. Compare Sprint Corp.
v. FCC, 315 F.3d 369, 377 (D.C. Cir. 2003) (remanding
without reaching substantive claims), and Syncor Int’l Corp.,
127 F.3d at 96 (same), with Air Transp. Ass’n of Am. v. FAA,
169 F.3d 1, 4–6, 8 (D.C. Cir. 1999) (reaching statutory claims
                              18
but declining to evaluate arbitrary and capricious challenges),
Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier
Safety Admin., 494 F.3d 188, 206 (D.C. Cir. 2007) (vacating a
portion of a rule both because agency failed to provide an
opportunity for comment and because agency failed to
provide adequate explanation), and Ala. Power Co. v. FERC,
160 F.3d 7, 11 (D.C. Cir. 1998) (finding it appropriate to
proceed to petitioner’s argument that agency lacked authority
to take challenged action after having found that agency failed
to follow required procedure in taking that action).

     In deciding how to proceed here, we keep in mind two
competing interests. On the one hand, we must avoid
prejudging the notice and comment process, the very purpose
of which is to give interested parties the opportunity to
participate in rulemaking and to ensure that the agency has
before it all relevant information. MCI Telecomms. Corp. v.
FCC, 57 F.3d 1136, 1140–41 (D.C. Cir. 1995). On the other
hand, were we to vacate the Guidance without passing on the
validity of the two alternatives, we could exacerbate the very
delay that is injuring NRDC’s members.

     Evaluating the program alternative in light of these
considerations, we believe that the interest in preserving the
integrity of the notice and comment process strongly
outweighs any concern about delay. Because neither the
statute nor our case law obviously precludes that alternative,
we believe that by weighing in now we would unfairly
prejudge any future notice and comment process.

     The attainment alternative presents a very different
situation. Because it violates the statute’s plain language and
our precedent, nothing would be gained by postponing a
decision on the merits. Indeed, doing so would exacerbate the
delay that is harming NRDC.
                              19

     We begin with the statute. Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)
(“First, always, is the question whether Congress has directly
spoken to the precise question at issue.”). Section 172(e)’s
plain language requires that any alternative be “not less
stringent than applicable controls.” Recall that under the
attainment alternative, an area need achieve only one or the
other of the two NAAQS, meaning that an area in attainment
of the 8-hour standard may treat its 8-hour implementation
plan as an alternative to section 185 fees for 1-hour
nonattainment. Although it is theoretically possible that
controls in place to meet the 8-hour standard in a particular
region could be equivalent to the section 185 penalties under
the 1-hour standard, EPA does not purport to draw such a
conclusion. Instead, EPA equates the purpose of retaining
section 185 as an anti-backsliding measure (to achieve
attainment) with the purpose of 8-hour attainment controls (to
achieve attainment). But it ignores the fact that to satisfy
section 172(e), the alternative must be “not less stringent”
than the applicable control required to attain the superseded
standard. In other words, those two attainments are of
different standards.

     The attainment alternative also exceeds several of the
limits to EPA’s gapfilling discretion that we identified in
South Coast. See Sierra Club v. EPA, 479 F.3d 875, 878, 880
(D.C. Cir. 2007) (per curiam) (explaining that where EPA
violates “the Clean Air Act’s plain language as interpreted by
[our precedent]” that is “ ‘the end of the matter’ ” (quoting
Chevron, 467 U.S. at 842)). First, we held that applicable
controls “must be enforced under the one-hour NAAQS.” S.
Coast, 472 F.3d at 903. Expressly contradicting that directive,
the attainment alternative requires enforcement of section 185
in only a subset of the 1-hour nonattainment regions—those
                               20
also in nonattainment of the 8-hour standard. Second, we
explained that the purpose of maintaining “applicable
controls” under the 1-hour standard was not to achieve
attainment of the new standard, but rather to prevent
backsliding from the old standard. Id. at 900 (“Considered as
a whole, the Act reflects Congress’s intent that air quality
should be improved until safe and never allowed to retreat
thereafter. Even if EPA set requirements that proved too
stringent and unnecessary to protect public health, EPA was
forbidden from releasing states from these burdens.”). In other
words, the Act creates a one-way ratchet, “plac[ing] states
onto a one-way street whose only outlet is attainment” of the
NAAQS—even NAAQS EPA has subsequently replaced. Id.
Because the attainment alternative allows violations of the 1-
hour standard to continue, it makes the ratchet two-way—a
clear violation of the statute. Finally, we rejected EPA’s
argument that because it would no longer be making
attainment findings under the 1-hour standard, it could refrain
from enforcing section 185 on regions in severe and extreme
nonattainment of that standard. Repeating this argument here,
EPA tells us that because it “no longer promulgates
redesignations for the 1-hour standard because that standard
has been revoked . . . relief from the 1-hour fee program
requirements under the terms of the statute is an impossibility,
since the conditions the statute envisioned for relieving an
area of its fee program obligation no longer can exist.” Fee
Program Guidance at 4. In South Coast, however, we
explained that “section 172(e) does not condition its strict
distaste for backsliding on EPA’s determinations of
expediency; EPA must determine its procedures after it has
identified what findings must be made under the Act.” 472
F.3d at 903. The same is true here.

     In concluding that EPA has once again “failed to heed the
restrictions on its discretion set forth in the [Clean Air] Act,”
                              21
S. Coast, 472 F.3d at 886, we recognize that EPA believes “it
would unfairly penalize sources in these areas to require that
fees be paid after an area has attained the 8-hour standard due
to permanent and enforceable emission reductions because the
fees were imposed due to a failure to meet the applicable
attainment deadline for the 1-hour standard, not any failure to
achieve the now applicable 8-hour standard by its attainment
date.” Fee Program Guidance at 4. But as we have said
before, “[i]f the Environmental Protection Agency disagrees
with the Clean Air Acts’ requirements . . . , it should take its
concerns to Congress. . . . In the meantime, it must obey the
Clean Air Act as written by Congress and interpreted by this
court.” Sierra Club, 479 F.3d at 884.

                              IV.
     For the foregoing reasons, we grant the petition for
review and vacate the Guidance.

                                                    So ordered.
