National Environmental Development Association's Clean Air Project v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2018 Decided June 8, 2018

No. 16-1344

NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION’S
CLEAN AIR PROJECT,
PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

Consolidated with 16-1345, 16-1346

On Petitions for Review of Amendments to Regulations
Promulgated by the United States Environmental Protection
Agency

Allison D. Wood and Shannon S. Broome argued the cause
for petitioners. With them on the briefs were Felicia H. Barnes,
Leslie Sue Ritts, and Charles H. Knauss. Stacy R. Linden
entered an appearance.

Andrew J. Doyle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Jeffrey H. Wood, Acting Assistant Attorney General, and Carol
S. Holmes, Attorney Advisor, U.S. Environmental Protection
Agency.
 2
Before: GARLAND, Chief Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

Concurring opinion filed by Senior Circuit Judge
SILBERMAN.

EDWARDS, Senior Circuit Judge: This case involves a
challenge by Petitioners National Environmental Development
Association’s Clean Air Project, American Petroleum Institute,
and Air Permitting Forum (“Petitioners”) to Amendments to
Regional Consistency Regulations (“Amended Regulations”),
40 C.F.R. §§ 56.3–56.5 (2017), adopted by the Environmental
Protection Agency (“EPA”) pursuant to § 7601 of the Clean Air
Act (“Act”), 42 U.S.C. § 7601. The Amended Regulations were
issued in response to this court’s decision in National
Environmental Development Association’s Clean Air Project v.
EPA (NEDACAP I), 752 F.3d 999 (D.C. Cir. 2014).

NEDACAP I arose after the Sixth Circuit issued Summit
Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012). In
Summit, EPA had in force regulations adopted pursuant to the
Act concerning “major sources” of pollution. The Act requires
an operator of a “major source” of pollution to obtain a permit
for a fixed term. 42 U.S.C. § 7661a(a). Under EPA regulations,
multiple pollutant-emitting activities are treated as a single
stationary source if they are, inter alia, “adjacent.” 40 C.F.R. §
71.2; id. § 52.21(b)(5)–(6). EPA had determined whether
facilities were “adjacent” on the basis of the functional
interrelationships between the facilities, and not simply the
physical distance separating them. In Summit, however, the
Sixth Circuit vacated an EPA determination that a natural gas
 3
plant and associated wells were one “source” for the purpose of
permitting under the Act.

EPA took exception to the Summit decision because it
effectively overturned a nationally applicable EPA policy. In
December 2012, EPA issued a Directive to the Regional Air
Directors of each of the ten EPA regions stating that,

[o]utside the [Sixth] Circuit, at this time, the EPA
does not intend to change its longstanding practice of
considering interrelatedness in the EPA permitting
actions in other jurisdictions. In permitting actions
occurring outside of the [Sixth] Circuit, the EPA will
continue to make source determinations on a case-by-
case basis using the [agency’s] three factor test.

NEDACAP I, 752 F.3d at 1003. One of the Petitioners here filed
suit in this court challenging EPA’s Summit Directive. The
petitioner argued that by establishing inconsistent permit
criteria applicable to different parts of the country, the Summit
Directive violated the Clean Air Act and EPA regulations. We
granted the petition for review, holding that the Summit
Directive could not be squared with EPA’s regulations. Id. We
did not decide whether the Summit Directive also contravened
the requirements of the Clean Air Act.

Almost immediately after the decision in NEDACAP I was
issued, EPA instituted rule making to amend the old Regional
Consistency Regulations. In August 2016, EPA issued the
Amended Regulations that are at issue in this case. To address
the Summit issue, the Amended Regulations make it clear that

only the 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
 4
applicable regulations . . . or final action,” as
discussed in Clean Air Act section 307(b) (42 U.S.C.
7607(b)), shall apply uniformly.

40 C.F.R. § 56.3(d).

The Petitioners challenge the Amended Regulations
principally on the ground that, under 42 U.S.C. § 7601(a), EPA
is required to implement the Act uniformly nationwide and
establish mechanisms for resolving judicially created
inconsistencies. Petitioners’ position is difficult to comprehend,
however. For example, if the Sixth Circuit issues a decision that
is contrary to EPA national policy, as happened in Summit,
Petitioners contend that the agency cannot follow the approach
announced in the Summit Directive. Does that mean that EPA
must apply the Sixth Circuit decision in all regions? The statute
does not require this. And if the Seventh Circuit subsequently
issues a judgment that is at odds with the Sixth Circuit decision,
would EPA be required to change its position again? Petitioners
offer no viable answers.

Under the Act, 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, inter alia,
“based on a determination of nationwide scope or effect.” 42
U.S.C. § 7607(b)(1). The Act assigns all other petitions for
review – including most challenges to “any . . . final action . . .
which is locally or regionally applicable” – to “the United
States Court of Appeals for the appropriate circuit.” Id. Under
this statutory scheme, it is hardly surprising that judicial review
of EPA actions sometimes results in circuit court rulings that
are inconsistent with other circuit court rulings applicable to
different EPA regions. As we explain below, the Amended
Regulations reflect permissible and sensible solutions to issues
 5
emanating from intercircuit conflicts and agency
nonacquiescence. We therefore defer to EPA’s reasonable
construction of the statute and deny the petitions for review.

I. BACKGROUND

EPA is run by an Administrator, whose office is located in
Washington, D.C. The agency also has ten regional offices,
each of which is responsible for administering agency
programs within the states in a designated region. “The
Administrator is authorized to prescribe such regulations as are
necessary to carry out his functions under [the Act] . . . [and]
may delegate to any officer or employee of the Environmental
Protection Agency such of his powers and duties under [the
Act], except the making of regulations subject to section
7607(d) of this title, as he may deem necessary or expedient.”
42 U.S.C. § 7601(a)(1). In addition, the Act requires the
Administrator to “promulgate regulations establishing general
applicable procedures and policies for regional officers and
employees (including the Regional Administrator) to follow in
carrying out a delegation.” Id. § 7601(a)(2).

The Act also provides that regulations with respect to
delegations under § 7601(a)(1) must be designed

(A) to assure fairness and uniformity in the criteria,
procedures, and policies applied by the various
regions in implementing and enforcing the chapter;

. . . and

(C) to provide a mechanism for identifying and
standardizing inconsistent or varying criteria,
procedures, and policies being employed by such
officers and employees in implementing and
enforcing the chapter.
 6
Id. § 7601(a)(2). Over the years, EPA Administrators have
made many such delegations to facilitate agency operations.

As noted above, judicial review of EPA actions is
bifurcated between petitions for review that must be filed in the
United States Court of Appeals for the D.C. Circuit and
petitions that may be filed in the regional circuit courts. The
Act provides:

A petition for review of action of the Administrator
in promulgating any . . . nationally applicable
regulations promulgated, or final action taken, by the
Administrator . . . may be filed only in the United
States Court of Appeals for the District of Columbia.
A petition for review of the Administrator’s action . . .
which is locally or regionally applicable may be filed
only in the United States Court of Appeals for the
appropriate circuit. Notwithstanding the preceding
sentence a petition for review of any action referred to
in such sentence may be filed only in the United States
Court of Appeals for the District of Columbia if such
action is based on a determination of nationwide
scope or effect and if in taking such action the
Administrator finds and publishes that such action is
based on such a determination.

Id. § 7607(b)(1); see also Dalton Trucking, Inc. v. EPA, 808
F.3d 875, 878–80 (D.C. Cir. 2015) (discussing the jurisdiction
and venue provisions under the Clean Air Act). The Petitioners
acknowledge that this statutory scheme “creates the possibility
of geographically inconsistent judicial decisions on [Act]
issues,” because different circuits may reach different results
on the same question. Pet’rs’ Br. 22.
 7
As outlined in the introduction to this opinion, the dispute
in this case stems from the Sixth Circuit’s decision in Summit.
That case resolved a challenge to EPA’s interpretation of the
word “adjacent,” an interpretation the Sixth Circuit rejected.
690 F.3d at 735. EPA then issued the aforementioned Summit
Directive in which the agency made it clear that it would not
follow Summit in EPA regions outside of the Sixth Circuit. One
of the Petitioners here challenged the Summit Directive in this
court in NEDACAP I, arguing that the directive violated EPA’s
consistency obligations under both § 7601(a)(2) and the
agency’s then-effective regulations. 752 F.3d at 1003.

The consistency regulations that were at issue in
NEDACAP I read, in relevant part, as follows:

It is EPA’s policy to:

(a) Assure fair and uniform application by all
Regional Offices of the criteria, procedures, and
policies employed in implementing and enforcing the
act; [and]

(b) Provide mechanisms for identifying and correcting
inconsistencies by standardizing criteria, procedures,
and policies being employed by Regional Office
employees in implementing and enforcing the act . . . .

NEDACAP I, 752 F.3d at 1004 (quoting 40 C.F.R. § 56.3
(2012)). We upheld the challenge to the Summit Directive
because we saw the consistency regulations as implying “that
EPA was obligated to respond to the Summit Petroleum
decision in a manner that eliminated regional inconsistency.”
Id. at 1011. We concluded that EPA’s then-current “regulations
preclude[d] EPA’s inter-circuit nonacquiescence . . . and [that]
the Summit Directive [was] therefore contrary to law.” Id. We
 8
declined to determine whether the Summit Directive also
violated the Act. Id.

The decision in NEDACAP I made it clear that EPA had
options other than following the command of Summit
nationwide, including an option to “revise its uniformity
regulations to account for regional variances created by a
judicial decision or circuit splits.” Id. at 1010. EPA heeded
these words and promptly issued a notice of proposed rule
making.

In August 2015, EPA published and solicited public
comment on a proposal to amend the old consistency
regulations to address “how to treat Federal court decisions
regarding locally or regionally applicable actions that may
affect consistent application of national programs, policy, and
guidance.” Amendments to Regional Consistency Regulations,
80 Fed. Reg. 50,250, 50,252 (Aug. 19, 2015) (to be codified at
40 C.F.R. pt. 56). In August 2016, EPA issued the Amended
Regulations that are now before us.

The Amended Regulations read in relevant part as follows:

It is EPA’s policy to:

(a) Assure fair and uniform application by all
Regional Offices of the criteria, procedures, and
policies employed in implementing and enforcing
the act;

(b) Provide mechanisms for identifying and
correcting inconsistencies by standardizing
criteria, procedures, and policies being employed
by Regional Office employees in implementing
and enforcing the act; and
 9
....

(d) Recognize that only the 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, and to provide
for exceptions to the general policy stated in
paragraphs (a) and (b) of this section with regard
to decisions of the federal courts that arise from
challenges to “locally or regionally applicable”
actions, as provided in Clean Air Act section
307(b) (42 U.S.C. 7607(b)).

40 C.F.R. § 56.3(a), (b), (d). In § 56.4, EPA added a provision
stating that

[t]he Administrator shall not be required to issue new
mechanisms or revise existing mechanisms developed
under paragraphs (a) of this section to address the
inconsistent application of any rule, regulation, or
policy that may arise in response to the limited
jurisdiction of either a federal circuit court decision
arising from challenges to “locally or regionally
applicable” actions, as provided in Clean Air Act
section 307(b) (42 U.S.C. 7607(b)), or a federal
district court decision.

Id. § 56.4(c). Finally, EPA revised § 56.5 so that a regional
office need not seek headquarters’ concurrence in order to
depart from EPA policy if that departure is required in order to
act in accordance with a federal court decision. Id. § 56.5(b).
 10
Petitioners timely filed petitions for review of the
Amended Regulations.

II. ANALYSIS

A. Standard of Review

Petitioners’ challenge to EPA’s interpretation of the Act is
governed by Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984). Under Chevron step one, we
must first decide “whether Congress has directly spoken to the
precise question at issue.” Id. at 842; see also Kingdomware
Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016)
(“[W]e begin with the language of the statute[;] . . . [i]f the . . .
language is unambiguous and the statutory scheme is coherent
and consistent . . . the inquiry ceases.”). If the statutory
provision in question is “silent or ambiguous with respect to
the specific issue,” we then assess the matter pursuant to
Chevron step two to determine whether EPA’s interpretation is
“based on a permissible construction of the statute.” 467 U.S.
at 843. See generally EDWARDS & ELLIOTT, FEDERAL
STANDARDS OF REVIEW: REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 211–22 (3d ed. 2018).

The court may also set aside EPA action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” or “in excess of statutory . . . authority.”
42 U.S.C. § 7607(d)(9). “To determine whether EPA’s rules
are ‘arbitrary and capricious,’ we apply the same standard of
review under the Clean Air Act as we do under the
Administrative Procedure Act.” Allied Local & Reg’l Mfrs.
Caucus v. EPA, 215 F.3d 61, 68 (D.C. Cir. 2000). That standard
requires us to “affirm the EPA’s rules if the agency has
considered the relevant factors and articulated a ‘rational
connection between the facts found and the choice made.’” Id.
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
 11
Ins. Co., 463 U.S. 29, 43 (1983)). See generally EDWARDS &
ELLIOTT, FEDERAL STANDARDS OF REVIEW, supra, at 259–67.

B. Petitioners’ Challenges
Petitioners challenge the Amended Regulations on four
grounds. First, they argue that § 7601(a)(2) precludes the use
of intercircuit nonacquiescence. Petitioners contend that this
statutory provision requires EPA to implement the Act
uniformly nationwide and establish a mechanism for resolving
inconsistencies created by court decisions. Second, Petitioners
claim that even if § 7601(a)(2) is ambiguous, the Amended
Regulations rely on an unreasonable interpretation of the Act.
Third, Petitioners contend that the Amended Regulations are
arbitrary and capricious in allowing exceptions to EPA policy
for court-created inconsistencies. Finally, Petitioners insist that
because NEDACAP I held that intercircuit nonacquiescence
violated regulations whose language resembles the statutory
provision we now construe, the two cases cannot be
distinguished and judgment in this case must follow its
predecessor. For the reasons indicated below, we reject these
arguments.

1. Section 7601(a)(2) Does Not Apply to Judicially
Created Inconsistencies

Petitioners argue that because the Amended Regulations
tolerate court-created inconsistencies in the application of
agency policies, the regulations clearly violate § 7601(a)(2)
and, therefore, cannot survive review under Chevron step one.
In other words, Petitioners suggest that because the Act admits
of plain meaning, EPA’s construction of § 7601(a)(2) fails
under Chevron step one. Petitioners’ view is misguided.

“In addressing a question of statutory interpretation, we
begin with the text.” City of Clarksville v. FERC, 888 F.3d 477,
 12
482 (D.C. Cir. 2018). In order to resolve the dispute at Chevron
step one, we must determine whether “the intent of Congress is
clear,” meaning that the statutory provision at issue is
“unambiguous[]” with respect to the question presented.
Chevron, 467 U.S. at 842–43. This requires that the governing
statute, read “as a whole,” reveal a clear congressional intent
regarding the relevant question, see, e.g., Dole v. United
Steelworkers of Am., 494 U.S. 26, 41 (1990), or that “the text
[of the statute] and reasonable inferences from it give a clear
answer,” Brown v. Gardner, 513 U.S. 115, 120 (1994). We
certainly can make no such findings in this case.

What is most noteworthy here is that nothing in the
language of § 7601(a) addresses judicially created
inconsistencies in the application of EPA policies. Indeed, the
fairness and uniformity requirements of § 7601(a)(2) apply
only to EPA regulations promulgated for “regional officers and
employees (including the Regional Administrator) to follow in
carrying out a delegation under paragraph (1), if any.” 42
U.S.C. § 7601(a)(2) (emphasis added). As relevant here,
paragraph (1) limits the Administrator to delegating his or her
“powers and duties under this chapter.” Id. § 7601(a)(1). The
Amended Regulations, however, excuse departure from EPA
policy only to the extent “required in order to act in accordance
with a federal court decision.” 40 C.F.R. § 56.5; see also id.
§§ 56.3–56.4.

Petitioners acknowledge, as they must, that the
Administrator cannot defy a controlling federal court decision
in any EPA region that falls within that court’s jurisdiction. The
Administrator has no such “power” or “duty” under the Act. In
other words, the agency is required to obey such a judicial
decision without regard to any delegation of powers or duties
from the Administrator. Section 7601(a)(2) does not require
regulations authorizing such obedience. Nor does the Act
 13
purport to allow the Administrator to delegate authority to
subordinate officials to ignore binding judicial decisions. In
short, because the Administrator does not have any “powers”
to disobey court decisions issued within EPA regions,
§ 7601(a) does not even allow for the issuance of such
regulations. And § 7601(a)(2) does not come into play in the
absence of an Administrator’s lawful delegation. Therefore,
the plain language of the Act surely does not support
Petitioners’ position.

Furthermore, the disputed provisions in the Amended
Regulations do not purport to delegate any of the
Administrator’s powers. Rather, they provide that EPA
regional offices are not required to seek headquarters approval
“for actions that may result in inconsistent application if such
inconsistent application is required in order to act in accordance
with a federal court decision.” 40 C.F.R. § 56.5(b). Again,
where an action is required by a court, no delegation of the
Administrator’s “powers” has taken place.

“The plainness or ambiguity of statutory language” must
be measured with reference to, among other things, “the
specific context in which that language is used, and the broader
context of the statute as a whole.” Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997). Petitioners concede that the
Act, by its terms, allows for inconsistent judicial decisions. As
already noted, petitions for review of purely local or regional
EPA actions must be filed in the appropriate circuit court. 42
U.S.C. § 7607(b)(1). Petitions regarding nationally applicable
issues must be filed in this court. Id. Congress obviously meant
to curb inconsistencies with respect to “nationally applicable
regulations promulgated, or final action taken, by the
Administrator” by channeling all such challenges to the D.C.
Circuit. Id. However, no such provision was enacted for agency
actions that are purely “locally or regionally applicable.” Id.
 14
The potential for intercircuit inconsistency is therefore an
inevitable consequence of the Act’s judicial review provision.

Petitioners argue that § 7601(a) was intended to resolve
the problem of inconsistent judicial decisions generated by
§ 7607. They contend that the Amended Regulations thus
violate § 7601(a)(2) because they do not promote uniformity,
but rather permit regional offices to take actions that may result
in inconsistent application of the Act “if such [action] is
required in order to act in accordance with a federal court
decision.” 40 C.F.R. § 56.5(b). However, as already noted,
reducing inconsistencies generated by different judicial
decisions in different regions is not the aim of § 7601(a).

Petitioners’ arguments seem to imply that EPA’s
construction of § 7601(a) cannot be credited because
intercircuit conflicts are inherently bad and, therefore, we
should not assume that Congress meant to enact such a
statutory scheme. On this point, it is sufficient to say that
Petitioners’ views on the values of intercircuit conflicts are
shortsighted. See Samuel Estreicher & Richard L. Revesz,
Nonacquiescence by Federal Administrative Agencies, 98
YALE L.J. 679, 735–36 (1989) (contending that “[g]iven the
lack of intercircuit stare decisis, and the reasons underlying our
system of intercircuit dialogue, an agency’s ability to engage
in intercircuit nonacquiescence should not be constrained”).

In any event, the main point here is that § 7601(a)(2)
addresses only delegation-created inconsistencies, whereas
§ 7607(b)(1) obviously allows for judicially created
inconsistencies. Contrary to what Petitioners suggest, these two
provisions do not intersect. Indeed, in their brief to this court,
Petitioners concede that § 7601(a)(2) was meant to address
delegation-created inconsistencies, not judicially created
inconsistencies. Pet’rs’ Br. 2–3.
 15
In sum, Petitioners cannot prevail under the first step of
Chevron because the plain meaning of the Act does not support
their claims. Section 7601’s uniformity obligations do not
address court-created inconsistencies. They instead apply
solely to regulations governing delegations of the
Administrator’s powers. Obedience to a controlling court
decision involves no such delegation. Because the Amended
Regulations merely acknowledge what the law requires, i.e.,
obedience to controlling court decisions, § 7601’s uniformity
obligations do not apply.

2. EPA Permissibly and Reasonably Interpreted the Act
to Allow Intercircuit Nonacquiescence

Petitioners’ arguments also fail under Chevron step two.
“Chevron recognized that [t]he power of an administrative
agency to administer a congressionally created . . . program
necessarily requires the formulation of policy and the making
of rules to fill any gap left, implicitly or explicitly, by
Congress.” Mayo Found. for Med. Educ. & Research v. United
States, 562 U.S. 44, 55–56 (2011). A court has no authority to
“substitute its own construction of a statutory provision for a
reasonable interpretation made by the administrator of an
agency” when the agency is acting pursuant to congressionally
delegated authority. Chevron, 467 U.S. at 844. “Chevron’s
premise is that it is for agencies, not courts, to fill statutory
gaps.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982 (2005).

As explained above, intercircuit conflicts in the
application of EPA policies caused by inconsistent judicial
decisions are inevitable because of the Act’s judicial review
provision in § 7607(b)(1). The Act does not instruct EPA how
to address such intercircuit conflicts or how to implement the
“fairness” and “uniformity” provisions of § 7601(a)(2).
 16
However, EPA has the delegated authority to enforce these
statutory provisions and to fill any perceived gaps in the statute.
In our view, the Amended Regulations reasonably fill the
statutory gaps, and, therefore, EPA’s construction of the Act is
entitled to deference.

In its brief to this court, EPA usefully and accurately
summarized the Amended Regulations:

First, EPA promulgated an exception to the
agency’s policy of uniformity, acknowledging
existing agency practice that a federal court decision
adverse to EPA that arises from a challenge to a
locally or regionally applicable agency action will not
“automatically” apply uniformly nationwide. EPA
also codified its longstanding position that, consistent
with the structure and purpose of the Act’s judicial
review provision, 42 U.S.C. § 7607(b)(1), only
decisions of the Supreme Court and decisions of this
Court that arise from challenges to nationally
applicable regulations or final agency action would
necessarily apply uniformly.

Second, EPA added a provision that its
headquarters need not issue mechanisms or revise
existing mechanisms to address every “inconsistent
application of any rule, regulation, or policy that may
arise in response to the limited jurisdiction of either a
federal circuit court decision arising from challenges
to ‘locally or regionally applicable’ actions . . . or a
federal district court decision.”

Third, EPA clarified that a regional office no
longer needs to seek concurrence from headquarters
to diverge from national policy if such regional action
is required in certain states “to act in accordance with”
 17
an adverse federal court decision that arises locally or
regionally.

Resp’t’s Br. 10–11. EPA also makes the compelling point that

Congress did not purport to forecast all the unique and
unpredictable variables associated with regional court
decisions, particularly when they opine on national
policy. Section 7601(a)(2) is entirely silent on this
more complex subject matter, and it is plausible (at
the very least) for the agency to read section
7601(a)(2) as focusing on improving the consistency
of actions that EPA regions take in the absence of
judicial decisions.

Resp’t’s Br. 30. We agree. Overall, EPA’s construction of
§ 7601(a) is not only permissible but eminently reasonable.

Petitioners struggle to articulate what regulatory
provisions EPA should have included in place of the Amended
Regulations. They appear to endorse the view that the
Amended Regulations should require the agency to petition the
Supreme Court for review of adverse judicial decisions, or
require EPA’s General Counsel to consult with the regions
about how to handle court decisions that are at odds with EPA’s
national rules. None of these suggestions would make much of
a dent in the inconsistencies inherently generated by § 7607,
which further suggests that § 7601 was not aimed at such
inconsistencies.

Moreover, Petitioners’ suggestions do not involve powers
delegated by the Administrator to the regions, and hence would
not be promulgated under § 7601 in any event. Regional
officers cannot petition for certiorari. Nor does any remedy
involving EPA’s General Counsel come within a delegation of
power to a regional office. Rather, regulations addressing these
 18
issues may come within the compass of other authority granted
to the Administrator to constrain EPA actions. We do not
foreclose the possibility that some other statutory provision,
not addressed by Petitioners, might require some such
procedures.

Petitioners’ ostensible parade of horribles – a potentially
national thicket of inconsistent decisions – is overblown, to say
the least. If no party is able to overturn an inconsistency-
creating decision through a petition for rehearing, en banc
review, or certiorari to the Supreme Court, EPA obviously will
be in a position to consider initiating a rule making procedure
to resolve the conflict, or take other final agency action that has
the force of law. Alternatively, a petitioner with standing may
petition for rule making should EPA fail to initiate such a
proceeding.

The simple point here is that the statute clearly
contemplates some splits in the regional circuits. There is
nothing in the statute to indicate that EPA is bound to change
its rules nationwide each time a regional circuit court issues a
decision that is at odds with an EPA rule. Were this the case,
then the first court of appeals to address an issue would
determine EPA’s policy nationwide. And that would make no
sense because only the D.C. Circuit has jurisdiction to hear and
decide cases involving “nationally applicable regulations” or
cases in which the action is “based on a determination of
nationwide scope or effect.” The implication of Petitioners’
position – that EPA must conform its policies nationwide to the
first circuit decision disagreeing with an agency rule – is
illogical, and plainly inconsistent with the Act’s judicial review
provision. In fact, it is even worse than that, because if a second
(or third, etc.) circuit were to disagree with that first mover,
EPA would be forced to change its rules again to avoid a lack
 19
of uniformity, if that were even possible. There is certainly no
statutory requirement that EPA follow such an approach.

Petitioners’ arbitrary and capricious challenge fails for
much the same reason as their Chevron step two challenge. As
EPA has explained, the Amended Regulations codify
obedience to the law and preserve § 7607(b)(1)’s two-track
system of judicial review. Petitioners’ claim that EPA has not
always been consistent in applying a practice of intercircuit
nonacquiescence is immaterial. In this case, EPA need only
show “that the new policy is permissible under the statute, that
there are good reasons for it, and that the agency believes it to
be better, which the conscious change of course adequately
indicates.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). EPA has done this, and Petitioners offer no good
reason to compel a different approach.

3. Petitioners’ Argument that NEDACAP I Controls this
Case

NEDACAP I held that intercircuit nonacquiescence
violated the previous consistency regulations because those
regulations “implie[d] that EPA was obligated to respond to the
Summit Petroleum decision in a manner that eliminated
regional inconsistency.” 752 F.3d at 1011. Petitioners argue
that because those regulations largely mirrored § 7601(a)(2)(A)
and (C) (the statutory language we construe here), NEDACAP
I compels us to interpret the statute likewise. While this point
is superficially plausible, it has two notable flaws.

First, to the extent the parties and decision in NEDACAP I
examined the Act, they did so solely with respect to
§ 7601(a)(2)(A) and (C), and did not analyze how § 7601(a)(1)
and (2) limit application of the uniformity obligations to
powers delegated by the Administrator. As explained above,
because the Administrator cannot disobey a controlling court
 20
decision, compliance with such decisions involves no
delegation of power under the Act and thus does not trigger
§ 7601(a)(2)’s obligations.

Second, NEDACAP I specifically stated that “EPA might
. . . revise its . . . regulations to account for regional variances
created by a judicial decision or circuit splits.” NEDACAP I,
752 F.3d at 1010. It is implausible that NEDACAP I invited
regulations its own holding would invalidate. Indeed, had
NEDACAP I assessed the Summit Directive solely vis-à-vis
§ 7601(a)’s strictures, and without reference to the then-
effective regulations, the result would have been completely
different. But NEDACAP I did not examine that issue.

Nevertheless, we recognize that the prior consistency
regulations resembled § 7601(a)(2). To avoid any confusion
going forward, we now make it clear that, to the extent
NEDACAP I can be read to suggest that § 7601(a)(2) bars EPA
from adopting reasonable regulations endorsing intercircuit
nonacquiescence – as EPA did in promulgating the Amended
Regulations – the decision is mistaken. *

III. CONCLUSION

For these reasons, we deny the petitions for review.

So ordered.

*
Because our holding today might be viewed as inconsistent with
some of the discussion in NEDACAP I, this opinion has been
circulated to and approved by all of the active members of the court,
and thus constitutes the law of the circuit. See Irons v. Diamond, 670
F.2d 265, 268 n.11 (D.C. Cir. 1981).
 SILBERMAN, Senior Circuit Judge, concurring: I fully agree
with the court’s opinion. I write separately to point out that the
EPA can often rather easily mitigate the inter-circuit non-
acquiescence problem – and it should. Section 7607 provides
that any EPA action that can be challenged in a regional circuit,
because ostensibly regionally applicable, should nevertheless be
brought only in our Circuit if the “action is based on a
determination of nationwide scope or effect” and if the
Administrator finds and publishes that such action is based on
such determination. 42 U.S.C. § 7607(b)(1).

In the case of Summit Petroleum Corp. v. EPA, 690 F.3d
733 (6th Cir. 2012) – which started this whole donnybrook –
EPA, in accordance with its regulations, responded to a request
to the Administrator for a determination whether a number of
natural gas facilities were “adjacent” and thereby constituted a
single “major source” (which would impose a regulatory
burden). None of the various locations shared a common
boundary with one another, and they were scattered across 43
square miles. Nevertheless, EPA determined that the facilities
were regarded as “adjacent” under its regulations, pointing to a
memorandum prepared by its then-Assistant Administrator,
Gina McCarthy (subsequently appointed Administrator). See
Memorandum from Gina McCarthy, Assistant Adm’r, to Reg’l
Adm’rs Regions I-X (Sept. 22, 2009). That was a reversal of
EPA’s previous position which interpreted “adjacent”
geographically – not functionally. There is little question that,
although this interpretation was applied first to a single set of
facilities in the Summit case, it constituted an interpretation of
“nationwide scope and effect.” Therefore, it seems to me that
the EPA Administrator should have so declared, and then any
challenge should have been brought to the D.C. Circuit. Instead,
Summit petitioned for review in the Sixth Circuit, leading to the
national uncertainty that NEDACAP decries in the case before
us.
 2

It is clear that Congress, by empowering the EPA
Administrator to publish a finding that an action is “based on a
determination of nationwide scope or effect,” delegated unusual
authority to control the venue of judicial review. But her
exercise of that authority is not unreviewable. Any circuit court,
including the D.C. Circuit, could reject EPA’s determination
that an issue is of national importance as arbitrary and capricious
under the APA. And conversely, a failure of EPA to so declare
in an appropriate case could also be challenged by a party with
standing – like NEDACAP here – who desired uniformity of
national regulation, so long as it had first petitioned EPA to
publish the necessary finding.

In Summit, the question as to whether the case belonged in
the D.C. Circuit did not arise. But the Fifth Circuit has
concluded that whether or not an issue is of nationwide scope
and effect is only a venue question that it could determine de
novo, without any deference to EPA. See Texas v. EPA, 829
F.3d 405, 417-22 (5th Cir. 2016). I think that opinion is quite
wrong. To be sure, we have said that the question whether a
case challenging EPA’s action should be brought in a regional
circuit or before us is not jurisdictional. Dalton Trucking, Inc.
v. EPA, 808 F.3d 875, 879-80 (D.C. Cir. 2015). Nevertheless,
it is more than the ordinary venue issue – which typically
involves such questions as the convenience of the parties. Here
it is the legislative provision that directs regional issues to
regional circuits, and national issues to our circuit for uniform
resolution. As such, it is venue plus; it approaches jurisdiction.
Thus, while the EPA Administrator’s determination does not
escape review under the APA’s arbitrary and capricious
standard, it certainly should be entitled to deference. Indeed, I
think deference in this situation should be particularly generous
because the Administrator, as the national regulator, is in a much
 3

better position than a regional circuit court to evaluate the
nationwide impact of her action. Congress recognized that
comparative advantage by delegating this unusual authority to
an administrative agency.

Finally, as the court recognizes, it is possible that an issue
of nationwide scope or effect could emerge unanticipated in an
enforcement action in district court. Perhaps the purpose of the
Congressional scheme would be followed, in that event, by the
Administrator declaring the issue national, thereby channeling
any appeal to the D.C. Circuit. Similarly, if a petition for review
had already been filed in a geographical circuit and the EPA
Administrator promptly followed with her national declaration,
it would seem logical that the case should then be transferred to
the D.C. Circuit – though it remains an open question how
§ 7607(b)(1) deals with retroactivity. All of these procedural
pathways can and should work together to give effect to what I
understand to be a clear Congressional mandate: uniform
judicial review of regulatory issues of national importance.