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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11617
____________________
HUNT REFINING COMPANY,
Petitioner,
versus
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________________
Petitions for Review of a Decision of the
Environmental Protection Agency
Agency No. EPA-420-R-22-005
____________________
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2 Opinion of the Court 22-11617
____________________
No. 22-12535
____________________
HUNT REFINING COMPANY,
Petitioner,
versus
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________________
Petitions for Review of a Decision of the
Environmental Protection Agency
Agency No. EPA-420-R-011
____________________
Before JORDAN, LAGOA, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
The Clean Air Act’s Renewable Fuel Standard (RFS) pro-
gram requires most domestic oil refineries to blend a certain
amount of renewable fuels into the transportation fuels they pro-
duce each year. See 42 U.S.C. § 7545(o)(2). The program allows
small refineries to petition the Environmental Protection Agency
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22-11617 Opinion of the Court 3
for an exemption from those blending requirements in cases where
compliance would cause the refineries “disproportionate economic
hardship.” Id. § 7545(o)(9)(B).
The EPA denied Hunt Refining Company’s petitions for
hardship exemptions from the RFS program, and Hunt petitioned
this Court for review. The EPA has moved to dismiss or transfer
venue under the Clean Air Act’s judicial review provision, 42
U.S.C. § 7607(b)(1), contending that Hunt’s petitions should have
been filed in the United States Court of Appeals for the District of
Columbia. And they should have been.
I.
In 2005 and 2007, Congress amended the Clean Air Act to
establish the RFS program. See Energy Policy Act of 2005, Pub. L.
No. 109-58, § 1501, 119 Stat. 594, 1067; Energy Independence and
Security Act of 2007, Pub. L. No. 110-140, §§ 201–02, 121 Stat. 1492,
1519–28 (codified at 42 U.S.C. § 7545(o)). The program was part of
a larger effort to “increase the production of clean renewable
fuels.” Energy Independence and Security Act, preamble, 121 Stat.
at 1492. Under the program, all gasoline sold in the United States
must contain certain amounts of “renewable fuel, advanced bio-
fuel, cellulosic biofuel, [or] biomass-based diesel.” 42 U.S.C.
§ 7545(o)(2)(A)(i).
Congress set the annual volume requirements for those re-
newable fuels through 2022 and instructed the EPA to set the vol-
ume requirements for years after 2022. Id. § 7545(o)(2)(B)(i)–(ii). It
also directed the EPA to promulgate regulations to ensure that the
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4 Opinion of the Court 22-11617
gasoline sold in the United States each year contains the required
volumes of renewable fuel. Id. § 7545(o)(2)(A)(i), (3)(B). In its im-
plementing regulations, the EPA identified oil refineries and im-
porters as the parties responsible for complying with the RFS pro-
gram. 40 C.F.R. § 80.1406.
Concerned that the RFS obligations could unfairly burden
small refineries, Congress gave all small refineries an exemption
from the RFS program through 2010. 1 42 U.S.C. § 7545(o)(9)(A)(i);
see HollyFrontier Cheyenne Refin., LLC v. Renewable Fuels Ass’n, 141 S.
Ct. 2172, 2175–76 (2021). It directed the EPA to extend a small re-
finery’s exemption for at least two more years if a study by the De-
partment of Energy determined that the refinery “would be subject
to a disproportionate economic hardship if required to comply”
with the RFS program. 42 U.S.C. § 7545(o)(9)(A)(ii); see also 40
C.F.R. § 80.1441(e)(1). And Congress also provided that “[a] small
refinery may at any time petition the [EPA] for an extension of the
exemption . . . for the reason of disproportionate economic hard-
ship.” 42 U.S.C. § 7545(o)(9)(B)(i).
Hunt Refining Company operates a small refinery in Tusca-
loosa, Alabama. It has applied for a hardship exemption each year
since 2011, and until 2018, the EPA had always granted Hunt the
requested exemption.
1 A “small refinery” is “a refinery for which the average aggregate daily crude
oil throughput for a calendar year . . . does not exceed 75,000 barrels.” 42
U.S.C. § 7545(o)(1)(K); see also 40 C.F.R. § 80.1401.
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22-11617 Opinion of the Court 5
In 2019 the EPA acted on 36 hardship exemption petitions
for RFS compliance year 2018, granting 31 (including Hunt’s) and
denying five. Several refineries and a renewable fuel producer pe-
titioned the D.C. Circuit for review. See Sinclair Wyo. Refin. Co. v.
EPA, No. 19-1196 (D.C. Cir. filed Sept. 20, 2019). At the EPA’s re-
quest, the D.C. Circuit remanded the EPA’s decision on the 2018
exemption petitions so that the agency could reconsider the peti-
tions in light of intervening decisions from the Tenth Circuit, Re-
newable Fuels Ass’n v. EPA, 948 F.3d 1206 (10th Cir. 2020), and from
the Supreme Court, HollyFrontier Cheyenne Refin., LLC, 141 S. Ct.
2172 (2021). See Sinclair Wyo. Refin. Co., No. 19-1196 (D.C. Cir.
Dec. 8, 2021).
In April 2022 the EPA on remand from the D.C. Circuit de-
nied all 36 hardship exemption petitions for compliance year 2018,
concluding that none of the petitioning refineries had shown dis-
proportionate economic hardship caused by compliance with the
RFS program. In reaching its decision the EPA applied a revised
interpretation of § 7545(o)(9) and a new economic theory that it
determined was “applicable to all small refineries no matter the lo-
cation or market in which they operate.”
In June 2022 the EPA issued a nearly identical decision that
denied 69 pending hardship exemption petitions (including Hunt’s
petitions for compliance years 2019, 2020, and 2021) for the same
reasons.
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6 Opinion of the Court 22-11617
Hunt petitioned this Court for review of the EPA’s April and
June 2022 decisions denying its petitions. The EPA responded by
moving to dismiss or transfer Hunt’s petitions to the D.C. Circuit.
II.
42 U.S.C. § 7607(b)(1) is the Clean Air Act’s judicial review
provision. It provides that challenges to “nationally applicable” fi-
nal actions taken by the EPA “may be filed only in” the United
States Court of Appeals for the District of Columbia, while chal-
lenges to “locally or regionally applicable” EPA final actions “may
be filed only in” the appropriate regional circuit court of appeals.
42 U.S.C. § 7607(b)(1). But if a locally or regionally applicable ac-
tion is “based on a determination of nationwide scope or effect,”
and if, in taking that action, “the [EPA] Administrator finds and
publishes that such action is based on such a determination,” a chal-
lenge to that action must be filed in the D.C. Circuit. 2 Id.; see also
RMS of Ga., LLC v. EPA, 64 F.4th 1368, 1372 (11th Cir. 2023).
The EPA contends that Hunt should have filed its petitions
for review in the D.C. Circuit because the challenged denial actions
either were “nationally applicable” or, if locally applicable, are
“based on a determination of nationwide scope or effect” made and
published by the EPA. See April 2022 Denial of Petitions for Small
Refinery Exemptions Under the Renewable Fuel Standard
2 We need not decide whether 42 U.S.C. § 7607(b)(1) is a jurisdictional or
venue provision. It is enough that Congress made the provision mandatory
and that the EPA has asked us to follow it. See RMS of Ga., LLC v. EPA, 64 F.4th
1368, 1372 n.5 (11th Cir. 2023).
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22-11617 Opinion of the Court 7
Program, 87 Fed. Reg. 24,300, 24,301 (Apr. 25, 2022) (publishing
the EPA’s finding that the April 2022 denial action was “based on a
determination of nationwide scope or effect”); Notice of June 2022
Denial of Petitions for Small Refinery Exemptions Under the Re-
newable Fuel Standard Program, 87 Fed. Reg. 34,873, 34,874 (June
8, 2022) (publishing the same finding about the June 2022 denial
action).
When deciding whether a final action is “nationally applica-
ble,” we begin by “analyzing the nature of the EPA’s action, not
the specifics of the petitioner’s grievance.” RMS of Ga., 64 F.4th at
1372; see also Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019)
(“The court need look only to the face of the agency action, not its
practical effects, to determine whether an action is nationally appli-
cable.”); ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194, 1199 (10th Cir.
2011) (“The nature of the regulation, not the challenge, controls.”);
S. Ill. Power Coop. v. EPA, 863 F.3d 666, 670 (7th Cir. 2017) (“Under
the straightforward (if wordy) statutory text,” determining where
a challenge to an agency action must be filed “depends entirely
on — and is fixed by — the nature of the agency’s action; the scope
of the petitioner’s challenge has no role to play . . . .”).
Looking to the “face” of the challenged denial actions, see
RMS of Ga., 64 F.4th at 1373, we conclude that they were nationally
applicable under § 7607(b)(1). First, the nationwide scope of the
actions, which denied 105 petitions from refineries across the coun-
try, is a “strong indicator” of their national applicability. ATK
Launch Sys., Inc., 651 F.3d at 1197 (explaining that the fact that an
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8 Opinion of the Court 22-11617
air quality designation regulation “reaches geographic areas from
coast to coast and beyond is, at a minimum, a strong indicator that
the regulation is nationally applicable”). The April denial action
applied to petitions from over 30 small refineries “located within
18 states in 7 of the 10 EPA regions and in 8 different federal judicial
circuits.” The June denial action likewise applied to petitions from
over 30 refineries “located within 15 states in 7 of the 10 EPA re-
gions and in 8 different Federal judicial circuits.” See also RMS of
Ga., 64 F.4th at 1373, 1374 n.7 (concluding that an EPA rule that
allocated chemical usage permits was nationally applicable where
the action was not limited in geographic scope and the EPA “did
not act on the individual firm level and instead distributed permits
to multiple firms, nationwide”); cf. Sierra Club, 926 F.3d at 849 (con-
cluding that an action was not nationally applicable because it de-
nied a “petition for objection to a single permit for a single plant
located in a single state” and had “immediate effect only for [that]
[p]lant”).
Second, and more importantly, the EPA denied the hardship
exemption petitions based on a new statutory interpretation and
analytical framework that is applicable to all small refineries no
matter their location or market. See RMS of Ga., 64 F.4th at 1373–
74 (in concluding that the EPA’s allocation of chemical usage per-
mits was a nationally applicable action, emphasizing that the action
used a separately promulgated formula that did not base each
firms’ usage permits on entirely local or firm-specific factors); see
also S. Ill. Power Coop., 863 F.3d at 671 (concluding that a challenged
action was “clearly” nationally applicable because it was “a final
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22-11617 Opinion of the Court 9
rule of broad geographic scope containing air quality attainment
designations covering 61 geographic areas across 24 states” and
“promulgated pursuant to a common, nationwide analytical
method”); ATK Launch Sys., Inc., 651 F.3d at 1197, 1200 (concluding
that the air quality designation regulation was nationally applicable
where the EPA’s action created a uniform standard and applied that
standard across the country).
Hunt insists that the denial actions were locally applicable
because, according to Hunt, § 7545(o)(9) requires that small refin-
ery hardship decisions be based on individualized assessments of
refinery-specific circumstances. The problem with that argument
is that as Hunt acknowledges, the EPA did not base its denials on
refinery-specific circumstances. In fact, Hunt complains in its brief
to us that the EPA violated the CAA by not making individualized
determinations and by ignoring refinery-specific evidence. It ap-
pears to us that in the denial actions the EPA did review the refin-
eries’ individual and market-specific evidence, but it determined
that evidence did not affect its overall economic analysis or conclu-
sions about the costs of RFS compliance. We must consider the
national applicability of the challenged actions based on what the
EPA actually did in the actions, not on what Hunt believes the EPA
should have done. See generally RMS of Ga., 64 F.4th 1372–73 (ex-
plaining that we look to the final action taken, not the nature of the
petition for review).
Hunt relies on two unpublished opinions from other circuits
involving challenges to EPA denials of multiple states’ State
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10 Opinion of the Court 22-11617
Implementation Plans (SIPs) for their failure to comply with cer-
tain national ambient air quality standards. See Texas v. EPA, No.
23-60069 (5th Cir. May 1, 2023); Kentucky v. EPA, Nos. 23-3216 &
23-3225 (6th Cir. Jul. 25, 2023). In those cases the Fifth and Sixth
Circuits denied transfer, concluding that the SIP disapprovals were
locally or regionally applicable because the actions by their nature
regulated individual states. See Texas, No. 23-60069, at *10–11; Ken-
tucky, Nos. 23-3216 & 23-3225, at *5; see also Am. Rd. & Transp.
Builders Ass’n v. EPA, 705 F.3d 453, 455 (D.C. Cir. 2013) (describing
a SIP approval as the “prototypical” locally or regionally applicable
action). The courts also concluded that the EPA had not shown
that the SIP disapprovals had nationwide scope or effect because
they “were plainly based on a number of intensely factual determi-
nations unique to each State.” Texas, No. 23-60069, at *11 (quota-
tion marks omitted); see Kentucky, Nos. 23-3216 & 23-3225, at *5–6.
Even if we gave any weight to unpublished opinions (includ-
ing those from other circuits), the Texas and Kentucky opinions
wouldn’t help Hunt. Unlike those two denial actions, the ones be-
fore us in this case do not involve SIP approvals or disapprovals.
And as discussed, unlike those two denial actions, the ones before
us in this case were not based on any individual refinery’s specific
circumstances or concerns. 3
3 In Texas the Fifth Circuit recognized that transfer to the D.C. Circuit would
be appropriate where the EPA’s action “uniformly appl[ies] to a broad swath
of” petitioners. See No. 23-60069, at *10.
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22-11617 Opinion of the Court 11
We conclude that the April and June 2022 EPA decisions in
this case were nationally applicable and may be challenged only in
the D.C. Circuit. Even if they were only locally or regionally ap-
plicable, they were based on a determination of nationwide scope
or effect because they announced a new, universally applicable ap-
proach to evaluating hardship petitions, and the EPA published a
finding to that effect. See 87 Fed. Reg. at 24,301, 34,874.
III.
We are not alone in reaching that conclusion. The Third,
Seventh, Ninth, and Tenth Circuits have all granted similar mo-
tions by the EPA to dismiss or transfer petitions for review of the
same denial actions to the D.C. Circuit. See Am. Refin. Grp., Inc. v.
EPA, No. 22-1991 (3d Cir. Aug. 9, 2022); Am. Refin. Grp., Inc. v. EPA,
No. 22-2435 (3d Cir. Sept. 23, 2022); Countrymark Refin. & Logistics,
LLC v. EPA, No. 22-1878 (7th Cir. July 20, 2022); Countrymark Refin.
& Logistics, LLC v. EPA, No. 22-2368 (7th Cir. Sept. 8, 2022); Calumet
Mont. Refin., LLC v. EPA, Nos. 22-70124 & 22-70166 (9th Cir. Oct.
25, 2022); Wyo. Refin. Co. v. EPA, No. 22-9538 (10th Cir. Aug. 23,
2022); Wyo. Refin. Co. v. EPA, No. 22-9553 (10th Cir. Sept. 12, 2022).
The Fifth Circuit is the only circuit to have denied the EPA’s
motions to transfer petitions for review of the April and June denial
actions. See Calumet Shreveport Refin., LLC v. EPA, 86 F.4th 1121,
1130–33 (5th Cir. 2023). The two-member Calumet majority con-
cluded that the challenged actions were locally or regionally appli-
cable and not based on a determination of nationwide scope or ef-
fect. Id. It reached that conclusion after interpreting Fifth Circuit
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12 Opinion of the Court 22-11617
precedent to require that the applicability focus be on the “legal ef-
fect” of the actions. See id. at 1131–32 (citing Texas v. EPA, 829 F.3d
405, 419 (5th Cir. 2016)). The actions had no national legal effect,
the majority reasoned, because they did not bind small refineries
whose hardship petitions were not the subject of the actions. See
id. And the EPA had to consider refinery-specific evidence, which
meant the effect of the EPA’s determinations would not be the
same for all refineries. See id. at 1132–33.
We find Judge Higginbotham’s dissent in Calumet more per-
suasive. He pointed out that there is no basis in the text of 42
U.S.C. § 7607(b)(1) for considering an action’s “legal effect.” See id.
at 1143–45 (Higginbotham, J., dissenting). Instead, the issue of stat-
utory interpretation turns on the plain meaning of the words “na-
tionally applicable,” which looks to “the location of the persons or
enterprises that the action regulates.” Id. at 1143 (quotation marks
omitted). That focus leads to the “inescapabl[e]” conclusion that
the denial actions here are nationally applicable: “they apply one
consistent statutory interpretation and economic analysis to small
refineries nationwide.” Id. at 1144–45. Like Judge Higginbotham,
we can’t escape that conclusion.
And again, even if the actions were locally or regionally ap-
plicable, we would disagree with the conclusion that they were not
based on a determination of nationwide scope or effect. The EPA
based its adjudications on a new statutory interpretation and eco-
nomic analysis, and the scope or effect of that new approach is na-
tionwide. See id. at 1145–46. Or, as Judge Higginbotham put it,
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22-11617 Opinion of the Court 13
“The scope and effect of these core determinations are nationwide,
as they are applicable to all small refineries no matter the location
or market in which they operate.” Id. at 1145. We agree.
IV.
As a protective measure, Hunt filed petitions for review of
the April and June 2022 denial actions in the D.C. Circuit. See Hunt
Refin. Co. v. EPA, No. 22-1132 (D.C. Cir. filed June 24, 2022); Hunt
Refin. Co. v. EPA, No. 22-1194 (D.C. Cir. filed Aug. 8, 2022). Those
petitions have been consolidated with other refineries’ challenges
to the same agency actions and are currently being briefed on the
merits. See Sinclair Wyo. Refin. Co. v. EPA, No. 22-1073 (D.C. Cir.
June 15, 2023). So while we conclude that Hunt’s challenges to the
denial actions must be heard in the D.C. Circuit, instead of trans-
ferring Hunt’s petitions it will be more efficient and save a step or
two for us to grant the EPA’s motion to dismiss them. See, e.g.,
Calumet Mont. Refin., LLC v. EPA, Nos. 22-70124 & 22-70166 (9th Cir.
Oct. 25, 2022) (dismissing a refinery’s petitions for review of the
April and June denial actions because the refinery separately filed
petitions challenging the same denial actions in the D.C. Circuit).
THE PETITIONS FOR REVIEW ARE DISMISSED.
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22-11617 LAGOA, J., Concurring 1
LAGOA, Circuit Judge, Concurring:
I join the majority opinion in full. I write separately to clar-
ify a point of law that is featured in the parties’ arguments and to
rectify a bit of confusion arising from this Court’s dicta in Sierra
Club v. Leavitt, 368 F.3d 1300 (11th Cir. 2004).
As Judge Carnes thoroughly explains, 42 U.S.C. § 7607(b)(1)
is the provision of the Clean Air Act that governs judicial review of
challenges to actions taken by the Environmental Protection
Agency (“EPA”). It provides that, where the agency action being
challenged is “nationally applicable,” the petition for review “may
be filed only in the United States Court of Appeals for the District
of Columbia.” § 7607(b)(1). Conversely, where the agency action
being challenged is “locally or regionally applicable,” § 7607(b)(1)
provides that the petition for review “may be filed only in the
United States Court of Appeals for the appropriate circuit,” i.e., the
appropriate court of appeals based on location. Although this is
relatively straightforward, things get slightly more complicated in
the hybrid scenario. Specifically, § 7607(b)(1) provides that the pe-
tition for review of “locally or regionally applicable” agency action
“may be filed only in the United States Court of Appeals for the
District of Columbia” if two conditions are met: (1) the agency ac-
tion is “based on a determination of nationwide scope or effect”;
and (2) “if in taking such action the Administrator [of the EPA]
[found] and publishe[d] that such action is based on such a deter-
mination.”
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2 LAGOA, J., Concurring 22-11617
The issue is that, during a brief aside, this Court once blurred
the lines between these two conditions. In Leavitt, the Sierra Club
had asked us to review the EPA’s decision not to object to a permit
decision made by the Georgia Environmental Protection Division,
see 368 F.3d at 1301, and we ultimately held that the EPA acted ar-
bitrarily and capriciously because it failed to acknowledge its dis-
parate interpretations of the term “major stationary source” as
used twice in the relevant Georgia regulation, id. at 1304–09. In
reaching that conclusion, we went out of our way to “call atten-
tion” to the point that, if the Administrator ever makes a finding
that its interpretation of the relevant Georgia regulation is based
on a determination of nationwide scope, then any challenges to the
EPA’s interpretation would belong “in the D.C. Circuit rather than
this regional Circuit.” Id. at 1308 n.12. We also wrote that “[i]t is
for the Administrator of the EPA, not this Court, to judge whether
[the] EPA has made a determination of nationwide scope.” Id.
This digression, in my view, mischaracterizes the framework estab-
lished by § 7607(b)(1).
The Administrator’s judgment as to whether a locally or re-
gionally applicable EPA action is based on a determination of na-
tionwide scope or effect certainly bears a relationship with the sec-
ond condition for exclusive judicial review in the D.C. Circuit,
i.e., that the Administrator publishes a finding to that effect.
§ 7607(b)(1). But the Administrator’s judgment on this matter does
not control the first condition for exclusive judicial review in the
D.C. Circuit, i.e., that the agency action actually be “based on a de-
termination of nationwide scope or effect.” Id. For that prong to
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22-11617 LAGOA, J., Concurring 3
have any significance, courts surely must form their own judgment
on the matter. By suggesting that it is entirely up to the Adminis-
trator to judge whether an EPA action is based on such a determi-
nation, the quoted language from Leavitt effectively collapsed both
conditions into the second condition, thereby rendering the first
condition superfluous. 1
In any event, because Leavitt’s discussion of § 7607(b)(1) fo-
cused on hypothetical scenarios, see 368 F.3d at 1308 n.12 (explor-
ing what it would mean “if [the] EPA applies its interpretation [of
the relevant language] consistently in the future” and “if the Ad-
ministrator makes [a finding that the EPA made a determination of
nationwide scope] in the future”), and was not necessary to support
the decision’s ultimate holding, it amounts merely to non-binding
dicta. See Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010)
(“All statements that go beyond the facts of the case—and some-
times, but not always, they begin with the word ‘if’—are dicta.”);
see also United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir.
2009) (“As our cases frequently have observed, dicta is defined as
those portions of an opinion that are ‘not necessary to deciding the
1 The D.C. Circuit appears to have done the same in Alcoa, Inc. v. E.P.A., No.
04-1189, 2004 WL 2713116 (D.C. Cir. Nov. 24, 2004)—the decision that the
EPA has asked us to follow in its motion to dismiss or transfer Hunt’s petition
for review. See id. at *1 (“Under section 307(b)(1) of the Clean Air Act, 42
U.S.C. § 7607(B)(1), the Administrator has unambiguously determined that
the final action by the Environmental Protection Agency . . . has nationwide
scope and effect. Accordingly, all petitions for review of this action belong in
this Circuit.”).
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4 LAGOA, J., Concurring 22-11617
case then before us.’” (quoting United States v. Eggersdorf, 126 F.3d
1318, 1322 n.4 (11th Cir. 1997))). Indeed, our decision today reflects
a proper understanding of the two related but separate conditions
for exclusive judicial review in the D.C. Circuit rather than the un-
derstanding conveyed in Leavitt. See Maj. Op. at 11 (recognizing
that the April and June 2022 EPA decisions actually “were based on
a determination of nationwide scope or effect” and, relatedly but
separately, that “the EPA published a finding to that effect”). And
we should adhere to this understanding in future cases.