   United States Court of Appeals
            FOR THE DISTRICT OF COLUMBIA CIRCUIT



                      Filed: January 22, 2020

                            No. 18-1085

       CALIFORNIA COMMUNITIES AGAINST TOXICS, ET AL.,
                      PETITIONERS

                                 v.

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

                 AIR PERMITTING FORUM, ET AL.,
                         INTERVENORS


               Consolidated with 18-1095, 18-1096


                On Petition for Rehearing En Banc


       Before: GARLAND, Chief Judge, HENDERSON, ROGERS**,
TATEL, GRIFFITH, SRINIVASAN, MILLETT, PILLARD, WILKINS,
KATSAS, and RAO*, Circuit Judges, and SILBERMAN, Senior Circuit
Judge.
                          ORDER

        Upon consideration of petitioners’ petition for rehearing en
banc, the responses thereto, and the absence of a request by any
member of the court for a vote, it is
        ORDERED that the petition be denied.

                            Per Curiam

                                              FOR THE COURT:
                                              Mark J. Langer, Clerk

                                       BY:    /s/
                                              Daniel J. Reidy
                                              Deputy Clerk

* Circuit Judge Rao did not participate in this matter.

** A statement by Circuit Judge Rogers, dissenting from the denial
of rehearing en banc, is attached.
    ROGERS, Circuit Judge, dissenting from the denial of
rehearing en banc: I vote for en banc review because the court
has effectively rewritten the judicial review provision of the
Clean Air Act, 42 U.S.C. § 7607(b), thereby abdicating this
court’s responsibility to review an agency decision of national
importance. In so doing, the court misapplied precedent of the
Supreme Court and this court.

     At issue is a 2018 memorandum (the “Wehrum
Memorandum”) issued by the Environmental Protection
Agency (“EPA”) withdrawing and superseding a nearly
quarter-century-old EPA policy.          The Clean Air Act
distinguishes between “major” and “area” (i.e., non-major)
sources of hazardous air pollutants. 42 U.S.C. §§ 7412(a)(1),
(2). Only major sources are subjected to rules requiring the
maximum degree of reduction in emissions achievable, id.
§ 7412(d)(2), and must obtain Title V operating permits from
their respective state permitting authorities, id. § 7661a(a).
Since 1995, EPA has interpreted the Clean Air Act to allow a
facility to reclassify from a major source to an area source only
before the facility’s first compliance date — this is what EPA
refers to as the “once in, always in” policy. See Seitz
Memorandum at 9. But in 2018, the Wehrum Memorandum
overturned this long-standing policy: it declared that the “plain
language” of the Clean Air Act “compels the conclusion” that
a major source becomes an area source when it limits its
potential to emit hazardous pollutants below the major source
threshold. Wehrum Memorandum at 1 (citing 42 U.S.C. §§
7412(a)(1), (2)).

    This court, purporting to apply the two-prong test for final
agency action in Bennett v. Spear, 520 U.S. 154, 177–78
(1997), held that although the Wehrum Memorandum marked
the consummation of EPA’s decisionmaking process, it was
not an action from which rights or obligations had been
determined or from which legal consequences would flow, and
thus was unreviewable pursuant to the pre-enforcement
                               2
provision in 42 U.S.C. § 7607 prior to completion of the Title
V permitting process. See Slip Op. at 13–14. That holding flies
in the face of precedent. In Appalachian Power Co. v. EPA,
208 F.3d 1015 (D.C. Cir. 2000), the court held that an EPA
guidance document was final action because EPA had
articulated a “position it plans to follow in reviewing State-
issued [Title V] permits” and “a position EPA officials in the
field are bound to apply.” Id. at 1022. In National
Environmental Development Ass’n’s Clean Air Project v. EPA
(“NEDACAP”), 752 F.3d 999 (D.C. Cir. 2014), the court held
that an EPA guidance document was a reviewable final action
because it “provides firm guidance to enforcement officials
about how to handle [Title V] permitting decisions” and
“compels agency officials” to apply certain permitting
standards. Id. at 1007.

     Contrary to the court’s conclusion here, for purposes of
final agency action, the Wehrum Memorandum has the same
effect as the documents at issue in Appalachian Power Co. and
NEDACAP. It articulates EPA’s new position on reviewing
Title V permits. It dictates how agency officials will act. It
alters the legal regime by advancing a new interpretation of the
Clean Air Act. And it creates a new legal right by allowing
major sources of hazardous air pollutants to reclassify as area
sources, thereby easing regulatory restrictions on the emissions
of hazardous air pollutants. Although the court states that the
“Wehrum Memo itself does not revoke or amend a single
permit,” Slip Op. at 18, neither did the EPA guidance
documents in Appalachian Power Co. or NEDACAP. The key
to those cases was that EPA had articulated a nationwide policy
it intended to apply in future Title V permitting proceedings,
and consequently, pre-enforcement review was available.
                                3
    But why does this error necessitate en banc review?
Because it eviscerates Congress’s determination that this court
hears pre-enforcement cases arising under the Clean Air Act.

     The Supreme Court has told us that the judicial review
provision of the Clean Air Act, 42 U.S.C. § 7607(b), is
“special” because that statute “specifically provides for
preenforcement review.” Whitman v. Am. Trucking Ass’ns,
Inc., 531 U.S. 457, 479 (2001). And Congress vested
jurisdiction for that pre-enforcement review of nationally
applicable EPA actions in this court, and only this court. See
42 U.S.C. § 7607(b)(1). But the court has now abdicated this
special responsibility by rewriting the statute. The result is that
any challenge to EPA’s change in longstanding policy must be
brought in a regional court in a challenge to an individual Title
V permit. Such a result cannot be squared with Congress’s
desire for pre-enforcement review. Instead, review of this
policy change, and others like it in the future, will occur only
after permitting procedures have been completed in accord
with the new policy announced in the Wehrum Memorandum.

     Notably, this case arises in the context of deregulatory
action, as opposed to regulatory action imposing, as in our
precedents, an additional burden or requirement on regulated
parties. If anything, the deregulatory posture underscores the
significance of Congress’s understanding of the need for pre-
enforcement review. The new precedent created by the court’s
decision imposes an excessive burden on regulatory
beneficiaries, in direct contravention of the statute. Those
beneficiaries — people who breathe the air near major polluters
— can no longer ask this court to review a nationally applicable
EPA determination to decide whether it is lawful in one case
that will set the policy for the entire country. Now, potential
petitioners must monitor individual permit proceedings and file
petitions in courts across the country after EPA decides to grant
                                4
a permit allowing deregulation of an emitting source’s
regulatory obligations. That is not what Congress directed, and
it contravenes the statute’s goals of uniformity and
predictability, which benefit regulated parties and regulatory
beneficiaries alike.     Moreover (as petitioners’ counsel
explained at oral argument, see Oral Arg. Rec. 22:08–24:20
(Apr. 1, 2019)), it is difficult to understand how potential
petitioners are supposed to monitor the multitude of major
sources operating under Title V permits, much less corral the
resources to challenge each individual reclassification in the
appropriate court.

     The court waved away the consequences of its holding by
relying on a representation by EPA’s counsel during oral
argument that the Wehrum Memorandum does not have legal
force in the Title V permitting process. Slip Op. at 16–17. This
overly formalistic assumption belies how the Wehrum
Memorandum — and other guidance documents like it —
apply in practice. Take the Ponderosa Compressor Station, for
example. Relying on the Wehrum Memorandum, with no other
legal justification, EPA authorized the reclassification of that
major source as an area source in a letter barely over a page
long. See Pet. for Reh’g Add. 123–24. This court cannot
review that reclassification, despite the fact that it was
predicated solely on an EPA guidance document of national
scope. No court will be able to review it, in actuality, unless a
petitioner having Article III standing learns about the
reclassification and timely challenges it in the appropriate
regional court. See 42 U.S.C. § 7661d(b). Such individual
challenges would need to be repeated for each individual
reclassification. That result is inefficient for litigants and the
judiciary, displaces Congress’s goal of uniformity, and creates
continued uncertainty for all parties.
                               5
     Because the court has eliminated the pre-enforcement
review that Congress created, EPA decisions of national scope
are shielded from such review. EPA’s new “interpretation” of
the Clean Air Act will have continued reverberations that cut
against Congress’s design in a significant manner, the more
deserving of en banc consideration. EPA’s opposition to en
banc review offers no persuasive reason not to do so.
Therefore, I respectfully dissent from the denial of the petition
for rehearing en banc.
