Sierra Club v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2012 Decided November 9, 2012

No. 11-1184

SIERRA CLUB,
PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENTS

AMERICAN CHEMISTRY COUNCIL, ET AL.,
INTERVENORS

On Petition for Review of Final Action of the United States
Environmental Protection Agency

James S. Pew filed the briefs and argued the cause for
petitioner.

Madeline Fleischer, Attorney, U.S. Department of
Justice, argued the cause for respondents. With her on the
brief were Norman L. Rave Jr., Attorney, and Michael Thrift,
Attorney, U.S. Environmental Protection Agency.
 2

Lisa M. Jaeger, Jeffrey A. Knight, David M. Friedland,
and Leslie A. Hulse were on the brief for intervenors
American Chemistry Council, et al., in support of
respondents.

Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Opinion concurring in the judgment filed by Circuit
Judge HENDERSON.

WILLIAMS, Senior Circuit Judge: Sierra Club here
challenges a “Determination” of the Environmental Protection
Agency. In the Determination, EPA announced that it had
met the regulatory obligations imposed on it by § 112(c)(6) of
the Clean Air Act (“CAA”), 42 U.S.C. § 7412(c)(6). We
conclude that the Determination is a legislative rulemaking
subject to the notice-and-comment provisions of the
Administrative Procedure Act, 5 U.S.C. § 553. Because EPA
issued the Determination without providing notice and
opportunity for comment, we vacate and remand for the
agency to follow those procedures.

* * *

In 1990 Congress amended the CAA to assign EPA the
following duty:

With respect to [seven specified hazardous air
pollutants (“HAPs”)], the Administrator shall, not
later than five years after November 15, 1990, list
categories and subcategories of sources assuring
that sources accounting for not less than 90 per
 3

centum of the aggregate emissions of each such
pollutant are subject to standards under subsection
(d)(2) or (d)(4) of this section. Such standards
shall be promulgated not later than 10 years after
November 15, 1990.

42 U.S.C. § 7412(c)(6). The obligation thus comprises both
listing sources (due by November 15, 1995) and promulgating
standards (due by November 15, 2000).

In 1998 EPA published its conclusion that it had satisfied
its duty to list sources, a conclusion Sierra Club immediately
challenged. But the CAA specifically precluded review of the
agency’s source-listing under § 112(c)(6) until the agency had
issued emissions standards thereunder, 42 U.S.C.
§ 7412(e)(4), so we dismissed the challenge, without
prejudice to the Sierra Club’s seeking review once EPA issued
standards. Sierra Club v. EPA, No. 98-1270, 1998 WL
849408 (D.C. Cir. Nov. 24, 1998).

EPA’s listing of sources and promulgation of standards
continued after its 1998 rulemaking, and well after the
statutory deadline. As to sources, it made successive
adjustments in the 1998 list by adding new sources and
delisting old ones. See, e.g., 76 Fed. Reg. 9450/1 (Feb. 17,
2011) (adding gold mine source category); 73 Fed. Reg.
1916/1 (Jan. 10, 2008) (finalizing decision not to regulate
gasoline distribution area sources); 72 Fed. Reg. 53,814/1
(Sept. 20, 2007) (listing electric arc furnace steelmaking
facilities as an area source); 67 Fed. Reg. 68,124/1 (Nov. 8,
2002) (delisting asphalt hot-mix production, fabricated metal
products, paint and allied products, paper coated and
laminated, packaging and transportation equipment
manufacturing, and open burning of scrap tires as area source
categories).
 4

As to emissions standards, it continued to set such
standards for a variety of sources, sometimes in an express
effort to satisfy its § 112(c)(6) obligations, see, e.g., 76 Fed.
Reg. 15,554/1, 15,556 (Mar. 21, 2011) (setting emissions
standards for 112(c)(6) chemicals emitted by industrial,
commercial, and institutional boilers), sometimes with no
reference to § 112(c)(6), see, e.g., 62 Fed. Reg. 52384/1 (Oct.
7, 1997) (setting emissions standards for Primary Aluminum
Reduction Plants, with specific reference to chemicals listed
in § 112(b), but not § 112(c)(6)).

Despite its activities in this area, EPA failed to meet the
statutory deadline of November 15, 2000. In 2001 Sierra
Club filed suit in district court to compel timely compliance.
Sierra Club v. Whitman, No. 01-1558, (D.D.C. filed July 18,
2001). EPA responded with an argument that such a suit was
an inappropriate remedy for any omissions in its fulfillment of
its § 112(c)(6) duties. Rather, it pointed to the declaration it
had filed with the court saying that it intended, once it
completed emissions standards for remaining source
categories, to “issue a notice that explains how it has satisfied
the requirements of [§] 112(c)(6) in terms of issuing standards
for source categories that account for the statutory thresholds
identified in [§] 112(c)(6).” It assured the court that that
action, like any other final agency action, would be subject to
review in this court.

The district court accepted EPA’s view, and set a
remedial deadline for EPA to complete its obligations under
§ 112(c)(6), but refused to identify the legal standards
required by that section, finding instead that the D.C. Circuit
was “the exclusive forum for substantive review of EPA
regulations promulgated under [§] 112 of the Clean Air Act.”
Sierra Club v. Johnson, 444 F. Supp. 2d 46, 60 (D.D.C.
2006). On EPA’s motion, the district court extended the
deadlines announced in Johnson “a number” of times, and
 5

ultimately ordered EPA to comply with its statutory deadline
by February 21, 2011. Sierra Club v. Jackson, No. 01-1537,
2011 WL 181097 at *1, *14 (D.D.C. January 20, 2011).

EPA honored that court deadline in March 2011 by
issuing the Determination challenged here. The
Determination declared that the agency “has completed
sufficient standards to meet the 90 percent requirement” under
§ 112(c)(6). 76 Fed. Reg. 15308/1 (Mar. 21, 2011). The
Determination also referred to an accompanying
memorandum that “document[s] the actions the Agency has
taken to meet these requirements.”

Sierra Club petitions for review of EPA’s Determination.
It claims that EPA’s announcement that it has satisfied its
obligations under the statute is unreasonable, arbitrary,
capricious, and otherwise unlawful. Sierra Club also argues
that the Determination is a legislative rulemaking subject to
the notice-and-comment requirements set forth in § 553 of the
APA, and invalid for failure to comply with those
requirements.

EPA naturally resists Sierra Club’s arguments on the
merits, but also argues that we lack jurisdiction to resolve this
matter for two alternative reasons. First, it claims a want of
standing. Second, it argues that Sierra Club’s challenges are
untimely under § 307 of the CAA, 42 U.S.C. § 7607, since the
suit lags some of the regulations referenced in the
Determination by more than the 60 days allowed by § 307—
lags those regulations, in fact, by many years. There is,
besides, another threshold issue—the question whether the
Determination was a “final” agency action.
 6

* * *

Standing. EPA attacks Sierra Club’s standing with the
argument that “[a]lthough Sierra Club asserts that its members
are harmed by emissions of [§] 112(c)(6) HAPs from certain
source categories, . . . it provides no evidence that the
emission standards it discusses in its brief fail to effectively
control the [§] 112(c)(6) HAPs.” Respondent’s Br. at 23.
Accordingly, it says, Sierra Club cannot show, as it must, that
it is “likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal
quotation marks omitted). EPA seems to suggest that Sierra
Club’s complaint relates solely to whether the standard-setting
rules at issue explicitly mention § 112(c)(6), saying that
petitioner has offered no “basis to believe that, if EPA were
forced to revisit those emission standards and set numeric
limitations specifically naming the [§] 112(c)(6) HAPs, the
resulting level of control would be any more stringent . . . .”
Respondent’s Br. at 23-24.

This argument misconceives the nature of Sierra Club’s
complaint. Sierra Club argues that despite EPA’s statutory
obligations, it has yet to set emission standards for two types
of § 112(c)(6) HAPs, and has set standards for another type of
HAPs “for sources that account for far less than ninety percent
of aggregate emissions” of that type. Petitioner’s Br. at 27.
The Club seeks a vacatur of the Determination so that, before
any such determination becomes final, it can make its case
directly to EPA as to why the agency’s conclusion that it has
met the court-ordered deadline for all three types of HAPs is
erroneous and, relatedly, why the statute compelled EPA to
regulate the HAPs to which Club members are exposed more
stringently than the agency has already purported to do. If
correct on the merits, as we must assume for standing
purposes, such a challenge presents a clearly redressable
 7

injury: some Sierra Club members unquestionably live within
zones they claim are exposed to § 112(c)(6) HAPs, and our
vacatur will require EPA, consistent with the district court’s
deadline order, to entertain and respond to the Club’s claims
about the necessary scope and stringency of the standards.

Having shown its members’ redressable concrete interest,
Sierra Club can assert violation of the APA’s notice-and-
comment requirements, as those procedures are plainly
designed to protect the sort of interest alleged. As to such
requirements, Sierra Club enjoys some slack in showing a
causal relation between its members’ injury and the legal
violation claimed. Its position is similar to that of a party
“living adjacent to the site for proposed construction of a
federally licensed dam . . . [who] challenge[s] the licensing
agency’s failure to prepare an environmental impact
statement, even though he cannot establish with any certainty
that the statement will cause the license to be withheld or
altered.” Lujan, 504 U.S. at 572 n.7. Moreover, as to sources
for which EPA set standards for § 112(c)(6) HAPs without
purporting to do so, Sierra Club’s claim that the standards did
not necessarily comply with § 112(c)(6)—the merits of which,
again, we must assume—is potentially redressable by
compelling EPA to align the standards set with § 112(c)(6)’s
mandate.

Timeliness. EPA does not deny that Sierra Club filed its
present petition within 60 days of the issuance of the
Determination. Rather, it says that Sierra Club is using the
present suit as a back door for attacking long past
rulemakings. But Sierra Club’s contention here is that EPA’s
previous rulemakings do not satisfy the agency’s obligations
under § 112(c)(6) in part because some of these previous
regulations did not, on their face, purport to carry out that
paragraph’s demands. Sierra Club claims that, with the
Determination, EPA is unlawfully shoehorning previous
 8

rulemakings into the service of its argument that it had
completed its obligations under § 112(c)(6). If Sierra Club is
correct—a question on which we express no opinion—the
agency action Sierra Club challenges is only the
Determination, which (in its view) repurposed previous
rulemakings to satisfy EPA’s § 112(c)(6) obligations. Sierra
Club’s challenge is not only timely but could not be brought at
all until after EPA identified the rules that it believed satisfied
its responsibilities under § 112(c)(6).

Finality. Neither party disputes that the Determination in
question is a final decision for purposes of the APA. We have
held, however, that § 307’s provision for review of “final
action” by the agency imposes a jurisdictional requirement.
Nat’l Env’l Dev. Ass’n’s Clean Air Proj. v. EPA, 686 F.3d
803, 808 (D.C. Cir. 2012). Cf. Kontrick v. Ryan, 540 U.S.
443, 455 (2004) (distinguishing between “claims processing
rules” and jurisdictional barriers). In any event, the
Determination easily satisfies the familiar two-part inquiry
into an agency decision’s finality:

First, the action under review “must mark the
consummation of the agency’s decisionmaking
process—it must not be of a merely tentative or
interlocutory nature.” Bennett v. Spear, 520 U.S.
154, 177-78 (1997). Second, the action must “be
one by which rights or obligations have been
determined, or from which legal consequences
will flow.” Id. at 178.

Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C.
Cir. 2005) (some internal citations and quotation marks
omitted).

The first requirement is satisfied with unusual clarity, as
the whole purpose of the Determination is to ring down the
 9

curtain on EPA’s § 112(c)(6) activities. See 76 Fed. Reg.
15,308/1. Nor can there be a question that “legal
consequences will flow” from the Determination. EPA has
declared, for the first time, that it has fully accomplished the
listing of sources and promulgation of standards required by
§ 112(c)(6). Most obviously as to sources, but also quite
clearly as to standards never before pegged to § 112(c)(6),
EPA purports to close off any legal claim that it has fallen
short of compliance with § 112(c)(6).

Indeed, in the deadline suit before the district court, EPA
based its successful response on the premise that this very
Determination would both issue and be a final agency action
reviewable in this Court. See supra 4-5.

* * *

Finding that we have jurisdiction, we turn to the question
whether the Determination constitutes a legislative
rulemaking that cannot be issued without first being subject to
notice and comment under § 553 of the APA. We agree with
Sierra Club that it does. Because this conclusion forces a
remand under which the parties can develop a record that will
render EPA’s legal and technical decisions more transparent
and thereby facilitate substantive review (and perhaps moot
some or all of the parties’ dispute), we do not reach Sierra
Club’s arguments on the substance of the Determination or
express the slightest opinion as to their merit.

We have generally termed the category of rules subject
to notice-and-comment requirements as “legislative rules.”
U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 34 (D.C. Cir. 2005).
As will often be the case where an agency action is clearly
final, the question whether the Determination “is a legislative
rule that required notice and comment[] is easy.” Natural
 10

Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011).
The Determination having declared the end not only of its
multi-decade effort of listing and delisting sources subject to
regulation under § 112(c)(6), but also of any further duty to
issue § 112(c)(6) standards, it clearly purports to bar further
demands for additional source-listing or standard-setting.
(This closure effect is subject, perhaps, to petitions for
modification based, for example, on claims of changed
circumstances. See, e.g., RSR Corp. v. EPA, 102 F.3d 1266,
1267 (D.C. Cir. 1997) (discussing the rule first announced in
Geller v. FCC, 610 F.2d 973 (D.C. Cir. 1979), which provided
an exception to the timeliness rule in cases of “changed
circumstances giving rise to a new cause of action beyond the
statutory period for review”) (internal citation omitted).)

EPA cites Independent Equipment Dealers Association v.
EPA, 372 F.3d 420 (D.C. Cir. 2004), to support its argument
that the Determination is not a legislative rule. Far from it. In
deciding that the agency communication at issue was not a
legislative rule, we emphasized that it “tread no new ground
[and] left the world just as it found it.” Id. at 428 (then-Judge
Roberts). The Determination here does precisely what the
agency action in Independent Equipment Dealers did not. It
tread new ground by taking previous rulemakings—which
EPA had promulgated without any evident goal of satisfying
its § 112(c)(6) obligations—and repurposing them to satisfy
§ 112(c)(6). Because the Determination manifests a new yet
final agency position on its compliance with § 112(c)(6), it is
a legislative rulemaking subject to § 553’s notice-and-
comment requirements.

We repeat, of course, that nothing we say should be taken
as ruling on Sierra Club’s substantive claims.
 11

* * *

We vacate the Determination and remand to EPA to
fulfill the notice-and-comment requirements of § 553 of the
APA.

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in
the judgment:

Although I join in the judgment vacating EPA’s
“Determination,” 76 Fed. Reg. 15,308 (Mar. 21, 2011), I write
separately because I believe that Article III standing is far
from certain.

“Article III of the Constitution limits the judicial power
of the United States to the resolution of ‘Cases’ and
‘Controversies.’ ” Hein v. Freedom from Religion Found.,
Inc., 551 U.S. 587, 597 (2007). By limiting the jurisdiction of
federal courts to the consideration of cases and controversies,
the standing doctrine ensures that the judiciary does not spill
the banks of its Article III authority. Allen v. Wright, 468 U.S.
737, 750–51 (1984); Pub. Citizen, Inc. v. Nat’l Highway
Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007).
Because the doctrine implicates this fundamental caution
about the judiciary’s constitutional role, we address standing
with considerable care. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998).

A party seeking to invoke the power of an Article III
court must establish the “irreducible constitutional minim[a]
of standing,” to wit, injury in fact, causation and
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). I agree with my colleagues that Sierra Club
establishes an injury in fact which, assuming its success on
the merits, is caused by EPA’s failure to engage in the notice-
and-comment procedures required by the Administrative
Procedure Act (APA), 5 U.S.C. § 553. I suspect, however,
that today’s decision will most likely provide no relief for that
injury.

Section 112(c)(6) of the Clean Air Act (Act) requires
EPA to assure that “not less than 90 per centum of the
aggregate emissions of each such pollutant are subject to
 2
standards under subsection (d)(2) or (d)(4).” 42 U.S.C. §
7412(c)(6). That is all it requires. EPA is under no
obligation, statutory or otherwise, to inform anyone that it has
satisfied the requirements of section 112(c)(6). The issuance
of the Determination was purely voluntary, amounting to little
more than a public service message. 1

Given that EPA was not required to issue the
Determination, I am doubtful our decision will redress Sierra
Club’s injury. My colleagues correctly note that a party
alleging a procedural injury is not required to show that the
agency’s decision would have been different had it adhered to
the APA. Cnty. of Delaware, Pa. v. Dep’t of Transp., 554
F.3d 143, 147 (D.C. Cir. 2009) (“[A] litigant ‘who alleges a
deprivation of a procedural protection to which he is entitled
never has to prove that if he had received the procedure the
substantive result would have been altered. All that is
necessary to show is that the procedural step was connected to
the substantive result.’ ” (quoting Sugar Cane Growers Coop.
of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002)).
Even so, I cannot escape the conclusion that redress is most
likely “merely speculative” as opposed to “likely.” Lujan, 504

1
This conclusion also implicates another jurisdictional
concern, viz., whether the Determination was “final action” within
the meaning of section 307 of the Act. See Nat’l Envtl. Dev.
Ass’n’s Clean Air Project v. EPA, 686 F.3d 803, 808 (D.C. Cir.
2012). Because it is uncertain that the Determination accomplishes
anything, it is also unclear that it is “one by which rights or
obligations have been determined or from which legal
consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178
(1997) (quotation marks omitted). Nevertheless, I accept what I
believe to be my colleagues’ conclusion that the Determination has
altered the legal landscape by “taking previous rulemakings . . .
and repurposing them to satisfy § 112(c)(6).” Maj. Op. 10.
 3
U.S. at 561 (quotation marks omitted). Because EPA’s
compliance with section 112(c)(6) does not rest on the
issuance of the Determination, it is likely that, on remand,
EPA will simply abandon the Determination rather than
undertake the expensive and cumbersome notice-and-
comment procedures imposed by section 553 of the APA.
The upshot would be that EPA will continue to decline to
issue regulations and Sierra Club’s alleged injury will remain
unredressed. 2

2
In its abbreviated standing discussion, my colleagues
appear to conflate the two distinct standing prongs of injury in fact
and redressability by stating without explaining that Sierra Club
suffers a “clearly redressable injury[] given that some Sierra Club
members live within zones they claim are exposed to § 112(c)(6)
HAPs.” Maj. Op. 6. Exposure to section 112(c)(6) HAPs plainly
constitutes an injury in fact. See, e.g., Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). And
such injury is obviously redressable by an order to promulgate
regulations. But that is not what our vacatur order accomplishes.
Our instruction to EPA is merely that, before it promulgates a
notice of this kind, it must do so pursuant to the APA’s notice-and-
comment procedures. EPA may simply choose to withdraw the
notice altogether and rest on its internal conclusion that it has
satisfied section 112(c)(6), forcing Sierra Club to seek some other
form of redress.

Similarly, the dicta hypothetical discussed in the Lujan
footnote on which my colleagues rely is distinguishable. See Maj.
Op. 5–6 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572
n.7 (1992)). They compare Sierra Club’s alleged procedural
deprivation to a hypothetical agency’s failure to prepare an
environmental impact statement before construction of a federally
licensed dam. An adjacent landowner could challenge the agency’s
failure without showing that his input into the statement’s
preparation would result in the denial of the license. Lujan, 504
U.S. at 572 n.7. But as Justice Scalia noted, the environmental
 4
My colleagues believe that the “deadline suit” in the
district court, apparently still pending, obviates my concern.
In a footnote included in its district court brief in that case,
EPA stated its intention to issue a notice explaining that it had
satisfied its section 112(c)(6) obligations. Maj. Op. 4 (quoting
Def.’s Mem. in Supp. of Cross-Mot. for Summ. J. on Remedy
19 n.16, Sierra Club v. Johnson, No. 01-1537 (D.D.C. Jun.
13, 2005)). The district court ordered EPA to comply with
the requirements of section 112(c)(6) but declined either to
instruct EPA on how to comply or to review the substance of
any regulations relied upon by EPA to satisfy section
112(c)(6), concluding that both actions were beyond its
jurisdiction. Sierra Club v. Johnson, 444 F. Supp. 2d 46, 59–
60 (D.D.C. 2006). 3 The district court did not instruct EPA to

impact statement is a procedural requirement. Id. at 572. Thus, in
order to proceed with licensure and construction, the agency must
allow the landowner to make known his concerns. But here,
because the Determination is not required by statute, EPA may give
up the Determination entirely and at the same time cease
promulgating section 112(c)(6) regulations. The distinction is thus
that the hypothetical agency in Lujan may not accomplish its
goal—licensure or construction—without at least knowing the
injured party’s concerns. By abandoning the Determination, EPA
may accomplish its goal—no promulgation of additional
regulations pursuant to section 112(c)(6)—without regard to Sierra
Club’s concerns.
3
My colleagues make much of the fact that EPA assured
Sierra Club and the district court that it intended to issue the
Determination, which would be reviewable in this Court. Maj. Op.
4. This seems of little consequence to me. First, the district court
did not rely on EPA’s assurance to reach its ultimate conclusion
that it could not review the standards on which EPA relied to satisfy
section 112(c)(6) because it lacked jurisdiction. Johnson, 444 F.
Supp. 2d at 59–60. Second, EPA cannot stipulate to the finality of
the Determination because finality implicates our jurisdiction,
 5
issue the Determination but merely to “assure that sources
accounting for ninety percent of the aggregate emissions of
certain persistent and bioaccumulative hazardous air
pollutants are subject to emission standards with respect to
such pollutants.” Order at 2, Sierra Club v. Johnson, No. 01-
1537 (D.D.C. Mar. 31, 2006).

My colleagues conclude that “our vacatur order will
require EPA, consistent with the District Court’s deadline
order, to entertain and respond to the Club’s claims about the
necessary scope and stringency of the standards.” Maj. Op. 6–
7. I am unconvinced. If EPA declines to issue the
Determination, Sierra Club will presumably return to district
court to enforce the deadline order, as it has done before. See
Mot. to Enforce Order of Jan. 20, 2011, Sierra Club v.
Jackson, No. 01-1537 (D.D.C. Aug. 3, 2011). EPA will
presumably defend against enforcement with the Technical
Memorandum (prepared in order to support the
Determination) showing how it has satisfied the district
court’s order. See Maj. Op. 5. If the district court is correct
about its jurisdiction under the Act, it cannot review the
standards on which EPA relies. See Johnson, 444 F. Supp. at
59–60. Nor can we, because judicial review of the standards
that Sierra Club previously failed to challenge would violate
the sixty-day deadline imposed by section 307(b)(1) of the
Act. 42 U.S.C. § 7607(b)(1). The proper recourse for Sierra
Club will then be to petition for reconsideration of those
standards or for a new rulemaking. See Oljato Chapter of
Navajo Tribe v. Train, 515 F.2d 654, 666 (D.C. Cir. 1975);

which my colleagues acknowledge we must resolve ourselves. See
Maj. Op. 8; see also Bender v. Williamsport Area Sch. Dist., 475
U.S. 534, 541 (1986) (“[E]very federal appellate court has a special
obligation to ‘satisfy itself . . . of its own jurisdiction . . .’ even
though the parties are prepared to concede it.” (quoting Mitchell v.
Maurer, 293 U.S. 237, 244 (1934)).
 6
see also RSR Corp. v. EPA, 102 F.3d 1266, 1270 (D.C. Cir.
1997). If, after consideration of Sierra Club’s comments,
EPA denies the petition, we may review the denial and—if
persuaded—grant Sierra Club the relief it seeks. Although the
administrative petition process—like my colleagues’ hoped-
for result arising from remand—will enable Sierra Club to
make known its concerns to EPA, I doubt that EPA will
permit Sierra Club to short circuit that process by reissuing
the Determination after notice and comment. Remand is thus
unlikely to provide Sierra Club redress.

The possibility that an agency will abandon a rulemaking
after we vacate and remand a procedurally deficient rule
exists, of course, whenever we impose this remedy. See, e.g.,
Chamber of Commerce of U.S. v. U.S. Dep’t of Labor, 174
F.3d 206 (D.C. Cir. 1999) (vacating OSHA rule for lack of
notice-and-comment, which rule OSHA subsequently
abandoned); Orly Lobel, Interlocking Regulatory and
Industrial Relations: The Governance of Workplace Safety, 57
ADMIN. L. REV. 1071, 1124 (2005) (describing OSHA’s
abandonment of rule after vacatur); see also Natural Res. Def.
Council v. EPA, 489 F.3d 1250, 1265 (D.C. Cir. 2007) (noting
that agency may “abandon its initial rule” after vacatur);
Kristina Daugirdas, Note, Evaluating Remand Without
Vacatur: A New Judicial Remedy for Defective Agency
Rulemakings, 80 N.Y.U. L. REV. 278, 279 (2005). Because
vacating the Determination leaves unstated but intact EPA’s
underlying conclusion that it has satisfied section 112(c)(6), I
expect that abandonment will occur here. We have never,
however, required a petitioner challenging agency action to
show that the agency will not abandon the rulemaking after
vacatur and remand—nor could we—and I would not seek to
impose that requirement here. Accordingly, I concur in the
judgment of the Court.