In August 2016, pursuant to § 7601 of the Clean Air Act, EPA issued its proposed Amendments to Regional Consistency Regulations (“Amended Regulations”), 40 C.F.R. §§ 56.3-56.5 (2017). The Amended Regulations state that, for purposes of implementing the Clean Air Act nationwide, EPA would only apply decisions of the U.S. Supreme Court and U.S. Court of Appeals for the D.C. Circuit uniformly:

Only decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to ‘nationally applicable regulations . . . or final action,’ as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly.

In National Environmental Development Association’s Clean Air Project v. EPA, No. 16-1344 (D.C. Cir. June 8, 2016), industry groups (“Petitioners”) challenged the Amended Regulations in the D.C. Circuit on the basis that EPA is charged with implementing the Clean Air Act uniformly nationwide and must establish mechanisms for resolving judicially-created inconsistencies, as opposed to ignoring them. In the decision rendered earlier this month, the D.C. Circuit denied the petitions for review and upheld the Amended Regulations.

The decision wrestled with the fact that the Clean Air Act establishes the D.C. Circuit as the exclusive forum for judicial review of EPA actions that are “nationally applicable,” but leaves all other challenges under the Act to regional circuit circuits. Specifically, the D.C. Circuit has jurisdiction to hear petitions for review of “any . . . nationally applicable regulations promulgated, or final action taken” under the Act, as well as any other final agency action that is “based on a determination of nationwide scope or effect.” 42 U.S.C. § 7607(b)(1). All other petitions for review, such as challenges to final action that are “locally or regionally applicable,” are assigned to “the United States Court of Appeals for the appropriate circuit.” Naturally, under this bifurcated statutory scheme, a decision in one circuit court might be inconsistent with a decision issued by another.

EPA promulgated the Amended Regulations to revise EPA’s uniformity regulations to account for these regional variances. The Agency intended to address how it would treat federal court decisions affecting locally or regionally applicable actions that might affect national programs or policy. It did so by declaring that only decisions of the U.S. Supreme Court and decisions of the D.C. Circuit that arise from challenges to “nationally regulations” or “final action” “shall apply uniformly.”

The Petitioners’ challenged the Amended Regulations on several bases, all of which were rejected by the D.C. Circuit. First, Petitioners claimed that the Amended Regulations were inconsistent with the Clean Air Act because, in § 7601(a)(1), the Act requires EPA to “assure fairness and uniformity” in implementing and enforcing the Act and to “provide a mechanism” for “standardizing inconsistent or varying criteria” in enforcing the Act. But the court found this argument without merit because § 7601(a)(1) does not address judicially-created inconsistencies, the subject of the Amended Regulations. In the court’s view, § 7601(a)(1)’s uniformity and fairness provisions speak only to the EPA administrator’s delegation of his enforcement powers. The EPA administrator, the court explained, has no power to ignore a binding federal court decision, thereby rendering § 7601(a)(1) inapplicable to the issue at hand.

Second, Petitioners argued that intercircuit conflicts undermined the implementation of a national, pollution-control statute such as the Clean Air Act, and therefore, the Amended Regulations ran counter to Congress’s intent under the Act. But the court rejected this argument because, as noted above, the Clean Air Act contemplates two distinct avenues for judicial review, which in the court’s view, made inconsistent judicial decisions across the regional circuit courts “inevitable.” Therefore, the court concluded that the Act “clearly contemplates some splits in the regional circuits.”

In short, the court held that EPA’s Amended Regulations reasonably addressed the question of how the Agency should address inconsistent decisions in federal courts. To hold otherwise, the court explained, would permit “the first court of appeals to address an issue” to “determine EPA’s policy nationwide,” which would run counter to the Act because only the D.C. Circuit has jurisdiction to hear and decide cases involving national questions. Thus, notwithstanding potential hardship and unpredictability, industry will continue to be subjected to differing interpretations and standards depending on the location of the regulated facility or activity. 

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