The Law Is An Ass, RCRA Edition

Late last month, the 9th Circuit Court of Appeals ruled that a public water supplier could be liable in a citizens’ suit brought under the imminent and substantial endangerment provisions of RCRA, where the plaintiff alleged that the groundwater used by the supplier had been contaminated by the disposal of hexavalent chromium by a wood treatment facility upgradient of the supplier’s well field.

Blaming the victim doesn’t quite cover this.  The law, as Mr. Bumble said, is an ass. 

The majority opinion actually thought that this was a relatively simple and straightforward case.  The statute makes liable those who “contribute” to the “transportation” of a solid waste that causes an endangerment.  The defendant was manifestly transporting a solid waste, i.e., hexavalent chromium, through its pipes.  The plaintiff alleged that this created a substantial endangerment.

Not so simple, said Judge Tashima in dissent.  As Judge Tashima noted, the 9th Circuit, in the Hinds Investments case, held that RCRA:

requires that a defendant be actively involved in or have some degree of control over the waste disposal process to be liable under RCRA.

While the majority tried to distinguish Hinds on the ground that it applied only to generator liability, and not transporter liability, I think that Judge Tashima has much the better of the argument.  I won’t even get into how bizarre it is that a public water supplier might be found liable for creating an imminent and substantial endangerment when the basis for the claim is that the defendant supplied water that complied with Safe Drinking Water Act standards.  The law is twice an ass.

I have no idea whether the City of Vacaville has any stomach for further litigation, or whether the Supreme Court would ever take this case, but I’m reasonably confident that, were SCOTUS to hear it, its views would not be the same as those of the 9th Circuit majority.

How To Straighten the Long and Winding Road that We Call NEPA

So CEQ has proposed to amend the NEPA regulations in order to eliminate some of the changes made by the Trump Administration in 2020.  Important changes include:

  • explicit consideration of indirect impacts
  • renewed emphasis on consideration of cumulative impacts
  • elimination of the requirement that there be “a reasonably close causal relationship” between a proposed action and a potential impact, and
  • a greater willingness to allow regulators to look at the “purpose and need” that a project will address, rather than leaving the purpose and need to the project proponent.

I get the reason for the changes and I don’t oppose them.  However, the environmental community is kidding itself if it thinks that there’s a magic wand that will ensure that projects get the kind of environmental review they need without any risk that NEPA will be used as a sword by those who want to stop projects, often for reasons that have nothing to do with the public interest, and not solely as a shield by those seeking to protect the environment.

CEQ has made clear that last week’s proposal was just the first step in a two-part reform effort.  Bloomberg (subscription required) reports that phase 2 could address ways to make the NEPA process work more effectively.  I’ll believe it when I see it.

There are good reasons why the U.S. Chamber of Commerce has little credibility on NEPA issues, but this statement by Chad Whiteman at the Chamber could as easily have been made by wind or solar energy producers, or countless others looking to build the green infrastructure that we’re going to need for a net-zero economy that works for everyone:

By rolling back some of the most important updates to our antiquated permitting process, the new proposed NEPA rule will only serve to slow down building the infrastructure of the future. Important projects that address critical issues like improving access to public transit, adding more clean energy to the grid and expanding broadband access are languishing due to continued delays and that must change.

There are certainly places and projects where we simply need more review.  However, we often don’t need more review; we need better review.  Let’s hope that the smart folks at CEQ can figure out how to straighten out the long and winding NEPA road.

There’s No Doubt What EPA Staff Thinks Should Be the Result of EPA’s Reconsideration of the PM2.5 NAAQS

Late last week, EPA released an external review draft of the “Supplement to the 2019 Integrated Science Assessment for Particulate Matter.”  For those of you who don’t recall, the original Integrated Science Assessment was the report by EPA scientists that very clearly called for a decrease in the National Ambient Air Quality Standard for PM2.5.  It was criticized by the Chair of the Clean Air Act Science Advisory Committee and ignored by Administrator Wheeler, who decided to retain the current PM2.5 NAAQS, even as the evidence continued to pile up supporting a more stringent PM2.5 standard.

Well, in June of this year, EPA announced that it was revisiting that decision.  In support of EPA’s review, EPA staff have provided this supplement to the 2019 assessment.  The short version?  The evidence has continued to continue to pile up.  Here’s the summary of the summary:

This Supplement to the 2019 PM ISA finds that recent studies further support, and in some instances extend, the evidence that formed the basis of the causality determinations presented within the 2019 PM ISA.

And EPA has undertaken what might be described as a “pre-rebuttal” of the likely criticisms by those who think that the evidence does not establish causation between PM concentrations and increased mortality and morbidity:

Across epidemiologic studies examining both cardiovascular effects and mortality, sensitivity analyses as well as individual studies, further inform uncertainties in the evidence base (i.e., copollutant confounding, control for confounders such as temporal trends and temperature, and the concentration-response [C-R] relationship). Such analyses increase confidence in the relationship for both short- and long-term PM2.5 exposures and both health effect categories, and further support the causality determinations presented in the 2019 PM ISA. (My emphasis).

As I noted previously, I agree with the Trump EPA on only one aspect of the NAAQS-setting process; it takes way to long.  EPA has to make a new PM2.5 defensible in court, but it should not take two more years to do so.  The evidence has piled high enough.

Maui’s “Functional Equivalent” Test: Courts Are Still Feeling Their Way

Earlier this month, the 9th Circuit vacated the District Court judgment in a Clean Water Act citizens’ suit, because the basis for the judgment had been undermined by the Supreme Court decision in MauiThe decision is not a surprise, given that Maui explicitly rejected the prior 9th Circuit test for when discharges to groundwater are subject to the NPDES permitting regime.  It nonetheless is a useful reminder that the Supreme Court really did create a new test and that none of the prior tests remain good law.  It doesn’t mean that all recent district court decisions will necessarily be vacated, but it does mean that those district court decisions will only remain valid if the judge happened to make factual findings that either clearly include – or exclude – the defendant’s discharge from the realm of being a “functional equivalent” to a direct discharge to surface water.

In Corona Clay, the defendant had conceded that its discharge ultimately reached surface water.  Under the then-applicable 9th Circuit test, that admission was sufficient for the court to conclude that pollutants in surface water were “fairly traceable” to the discharge.  Unfortunately for the plaintiffs’, the Supreme Court made clear in Maui that a discharge may be fairly traceable to a defendant’s discharge without being the “functional equivalent” of a direct surface water discharge.

I have been and remain a supporter of the Maui decision.  Still, I have to admit that its critics are correct that, at least in the short run, it’s going to significantly increase the transaction costs devoted to resolving disputes regarding when discharges to groundwater require an NPDES permit.

Boston Regulates Building GHG Emissions: The Next Few Years Will Be Very Interesting

Last week, the Boston City Council approved amendments to the Building Energy Reporting and Disclosure Ordinance.  The changes are being referred to as “BERDO 2.0”, which almost understates the scope of the revisions.  As indicated by its name, since its original enactment, BERDO only dealt with reporting and disclosure.  Now, however, Boston will be imposing limits on GHG emissions from large buildings.

The limits will first be effective in 2025, with the limits declining every five years until they reach zero by 2050.  Significant negotiations went into the final version of BERDO 2.0 and the Council made real efforts to include some flexibility in the standards.  These provisions include:

  • Opportunities to utilize “blended” emissions standards, both within buildings and across building portfolios.
  • The ability to apply for an “Individual Compliance Schedule.”
  • The ability to apply for a “Hardship Compliance Plan.”
  • Use of Renewable Energy Certificates as a compliance mechanism
  • An alternative compliance payment provision – the initial cost will be set at $234/ton of CO2!
  • The Air Pollution Control Commission has authority to suspend some or all of the requirements of BERDO 2.0 upon finding that:

a significant obstacle interferes with implementation or that implementation has a significant negative effect on Energy cost burdens, equitable access to housing or other factors set for in the Regulations.

There’s no doubt that decarbonizing buildings is going to be one of the toughest climate nuts to crack.  I’m still skeptical that a patchwork of local regulations is the right way to go about it.  That concern is heightened when the Review Board that has significant responsibility for implementing BERDO 2.0 is going to be dominated by community representatives who will not necessarily have significant technical expertise.  Still, we have to start somewhere, and sooner rather than later.

Anyone want to join the betting pool on when the first request to suspend some part of the BERDO 2.0 requirements will be submitted?

Environmental Impact Review and Environmental Justice: How Hard Will It Be To Merge the Two?

Environmental justice is clearly an idea whose time has – finally – come.  The need to find the intersection between the search for racial justice and efforts to save the planet is undeniable.  If we get it right, we’ll be at least partially solving two problems at once.  First, mobilizing underserved communities in the fight against climate change and other environmental problems increases the number of voices arguing for aggressive action, making it more likely that the problems will be addressed.  Second, addressing climate change and other environmental ills won’t solve our racial problems, but it would certainly help address some of them.

None of this, however, means that it’s going to be easy to do.  In Massachusetts, our recently enacted climate bill has significant provisions addressing environmental justice, including language requiring that environmental impact assessments under the Massachusetts Environmental Policy Act address environmental justice concerns.  The MEPA office has now proposed regulations to implement the statutory changes.  Among the required changes will be an obligation to assess “disproportionate” impacts.  Oversimplifying a bit, project proponents will have to assess impacts on EJ communities located within one mile of a project, or five miles in the case of projects with air emissions impacts.

Let’s assume that there’s an EJ community within 4.5 miles of a proposed factory.  Putting stack height aside, one would normally assume that the impacts would be greater in the non-EJ communities closer to the location of the proposed factory.  Does that by definition mean that there will not be disproportionate impacts on the residents of the EJ community?  What if the impacts of the proposed factory, on their own, will indeed be greater on the non-EJ community, but the cumulative impact on the EJ community, considering preexisting facilities, will be greater than in the non-EJ community.  Is that a disproportionate impact?

And what happens to the analysis of alternatives required under MEPA?  Traditionally, with very limited exceptions, the project proponent gets to select the project location, and the analysis of alternatives is limited to different (normally, smaller) projects in the same location.  It’s not obvious that that approach will cut it in an EJ world.  Will the MEPA office start to routinely ask developers to assess alternatives that include other potential locations, farther from EJ communities?

EJ is important.  We just have to be clear that a serious commitment to protecting EJ communities in the environmental assessment process is going to require substantially new thinking by regulators and developers alike.

Implementing Maui Remains a Case-by-Case Affair, at Least for Now

Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife FundAs the masochists who follow the torturous case law we call Clean Water Act jurisprudence are well aware, SCOTUS ruled in Maui that discharges from point sources to groundwater that are the “functional equivalent” of a direct discharge to surface water are required to obtain NPDES permits.

SCOTUS outlined seven factors “that may prove relevant (depending upon the circumstances of a particular case).”  Last January, Trump’s EPA issued guidance adding an eighth factor:  “system design and performance.”  I’ll glance over that Trump’s antipathy towards guidance lasted only until he realized how convenient guidance is to the party in power.

EPA’s news release on its withdrawal of the guidance was brief and to the point:

The addition of that factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a National Pollutant Discharge Elimination System (NPDES) permit. The agency is rescinding this guidance upon determining that this additional factor is inconsistent with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.

I’d put it slightly differently.  The Trump guidance was an awesome combination of irrelevancy and redundancy.  First, the guidance seems largely irrelevant, since the design and performance of a treatment system specify what happens prior to the point source discharge, whereas the focus of the Maui analysis is on what happens between the point source discharge and the affected surface water.  Secondly, to the extent the design and performance of the system are somehow relevant, those impacts would seem to be addressed by the factors identified in Maui.  For example, imagine that there is a facility that will discharge to groundwater and that it would otherwise take one year to reach the surface water, but that the system is designed so that it takes two years (and perhaps that it will reduce the concentrations reaching the surface water).  The time to reach surface water and the change in concentrations over the distance traveled are already factors specified in Maui.  What does the separate consideration of “system design and performance” add to the analysis?

Either way, it does not appear to me that the Trump EPA guidance was an appropriate use of guidance.

The Trump WOTUS Rule Is Vacated; Now We Know What’s Next

Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration’s Navigable Waters Protection Rule.  I also asked “what’s next”?  EPA and the Army Corps have now answered that question, at least for the short run.  In a brief announcement on EPA’s web page, EPA stated that:

the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.

As a result, the pre-2015 regime applies until EPA and the Corps promulgate what they have promised will be a durable rule that will be based on sound science, survive judicial review, and provide certainty in this long-confused area.  It will also slice and dice, and lead to long-term world peace.

Of course, even before this blessed event comes to pass, if Judge Marquez addresses the plaintiffs’ other claims and strikes down the Trump era rule that repealed the Obama era WOTUS rule, then the Obama rule would come back into force – except that there are several challenges to the Obama rule that would come back to life at that point.

I just love this stuff.  I can’t even think about it without smiling, in a rather bleak, depressed way.

It’s Important to Acknowledge Good News — The End of Leaded Gasoline

As climate change rightly has dominated recent discussions of environmental policy, it’s been easy to forget how much progress has been made in the past fifty years.  I was reminded of the extent of that progress by the story in Bloomberg (subscription required) that the last refinery in the entire world to produce leaded gasoline has ceased operations.  There’s no doubt that that’s something to be celebrated.

I recently did a post asking whether exposure to particulate matter affects cognitive abilities.  Well, there’s no doubt that exposure to lead does so.  The harm wreaked by emissions from leaded gasoline could be described as incalculable.  However, that would be a rhetorical statement.  I’m sure that we could provide at least a rough estimate of the impacts.  If we were to do so, the answer would be terrifying.  The plus side is that the benefit of removing lead from gasoline has therefore also been incalculable.

I’ll close with one final note.  For environmental lawyers, the decision in Ethyl Corp. v. EPA is a foundational case.  At its core, Ethyl Corp. provides the basis for environmental regulation in the face of uncertainty.  And it’s important to remember that, while the decision seems fairly obvious today, it wasn’t so obvious at the time.  The case was decided en banc, and there were multiple dissents.

Imagine the additional harm that would have occurred had Ethyl Corp. been decided the other way.  And now imagine the additional harm that will result from climate change if we fail to regulate because of “uncertainty” about the cause or scope of climate change.

The Trump WOTUS Rule Is Vacated; What’s Next?

Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule.  In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers moved to remand the rule to the agencies, since they had already announced an intent to revisit the definition of WOTUS.  However, for reasons that I have never understood, the agencies sought remand without vacatur, notwithstanding their public statements to the effect that implementation of NWPR was already causing harm to waters of the United States.

It turns out that Judge Marquez shares my bewilderment, because it did not take her long to conclude that this case did not fit the criteria for remand without vacatur.

The seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of “waters of the United States,” and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.

So NWPR is out.  The next question is “what now”?

The plaintiffs here also challenged the Trump rule that repealed the 2015 Obama WOTUS rule.  If I were a betting man, I’d put my money on Judge Marquez also striking down the repeal rule.  That would revive the Obama WOTUS rule – except that there several legal challenges were filed against the Obama rule.

Oh, what a tangled web the agencies weave when they practice to regulate under an ill-defined statute and a fractured Supreme Court opinion.  I do not see the web getting any less tangled any time in the near future.

NSR Enforcement Lives On (For Now) — A Split Decision for Ameren

The 8th Circuit Court of Appeals has largely affirmed a District Court order finding that Ameren Missouri violated the NSR provisions of the Clean Air Act in making major modifications to its Rush Island facility.  The Appeals Court did reject the District Court’s requirement that Ameren Missouri make improvements at its nearby Labadie facility that was not in violation of the CAA.

I have three thoughts about the decision.

First, the liability finding was pretty much plain vanilla.  I will note, however, that the combination of the decision here and the 3rd Circuit decision in United States v. EME Homer City Generation results in a strong incentive for owners of power plants concerned about NSR liability to sell them quickly, since the courts have clearly landed on an interpretation of the CAA under which former owners are not subject to liability, while current owners (if they were owners at the time of a modification), remain liable.

Second, the 8th Circuit affirmed the injunctive relief imposed by the District Court with respect to the Rush Island facility, but not the requirement imposed by the District Court to reduce emissions at the Ameren Labadie facility to make up for the excess emissions from Rush Island.  When the District Court decision was issued, I praised its carefully crafted injunction and predicted it would survive appeal.

Shows what I know!

I still think that the District Court got it right.  As the 8th Circuit noted (italics in original):

a district court “has the authority to order [a defendant] to take appropriate actions that remedy, mitigate and offset harms to the public and the environment caused by the [defendant’s] proven violations of the CAA.” … [T]he Clean Air Act, 42 U.S.C. § 7413(b), expressly provides for injunctive relief to redress violations of the Act.”

The Court then notes that the Labadie plant didn’t violate the CAA.  However, while the violations occurred at Rush Island, it wasn’t “Rush Island” that violated the CAA.  It was Ameren Missouri that violated the CAA.  There’s nothing in the CAA that precludes the imposition of injunctive relief against a violator with respect to operations separate from those where the violation occurred, as long as they are narrowly tailored to remedying the harm from the violations that did occur.  Here, the District Court made fully supportable findings that the injunctive relief at Labadie would mitigate and offset harms to the public and the environment caused by Ameren Missouri’s proven violations of the CAA.  That should have been enough.

Finally, I have previously described NSR as the most successful program that shouldn’t exist.  I still believe that.  Now, however, as climate change pushes government to adopt programs that will ultimately result in the closure of fossil plants, the NSR program itself is going to become a fossil – or at least extinct.

And that will be a good outcome.

The Sacketts Got Their Day in Court on the Merits; Another Lesson in Being Careful What You Wish For

Last week, in what may or may not be the last round in the ongoing efforts by Michael and Chantell Sackett to build a house on wetlands in Idaho, the 9th Circuit Court of Appeals found that:

EPA reasonably determined that the Sacketts’ property contains wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA and the relevant regulations.

The history of the case is tortuous, entertaining, and altogether too long even to summarize adequately in a blog post.  Suffice it to say that, after EPA’s rather humiliating defeat before the Supreme Court, and after the passage of seven years, the District Court ruled in EPA’s favor, finding the Sackett’s property was subject to CWA jurisdiction and that the issuance of EPA’s compliance order was not arbitrary and capricious.

The Sacketts appealed, but in the meantime, the Trump EPA withdrew the order and notified the Sacketts that it had no intention of taking any further action against them.  When the Sacketts maintained their appeal, EPA moved to dismiss it as moot.  However, the 9th Circuit concluded that EPA had not met the “heavy burden” required to establish mootness, because the withdrawal of the order was voluntary and not the result of any independent circumstance that would preclude EPA from changing its mind yet again in the future.

With mootness disposed of, the 9th Circuit turned to the merits – which means navigating the craziness environmental lawyers know as Rapanos.  I will confess that I used to find the multiple opinions in Sackett entertaining; now I just want it to go away.  Here, the 9th Circuit had ruled in 2007 that the Kennedy concurrence was the controlling rule of law.  In this recent Sackett decision, the Court decided that there was no reason to revisit that holding.

From there it was fairly easy to conclude that it was not arbitrary and capricious under the “significant nexus” test to find that the Sacketts’ property was subject to CWA jurisdiction.

It seems to me that the Sacketts should have declared victory when EPA withdrew the enforcement order.  They may be hoping to be a test case for SCOTUS, but I’ve never thought that this was a good case on the merits for conservatives to push.  The facts are pretty much an advertisement in support of the significant nexus approach.

Which doesn’t mean that the Supreme Court won’t take the inevitable appeal or that SCOTUS won’t rule in the Sacketts’ favor if they do.

Does Pollution Make You Dumber? (And Other Questions About Exposure to Particulate Matter.)

Most people other than Andrew Wheeler and the Trump Administration Clean Air Science Advisory Committee know that exposure even to low levels of PM2.5 causes increased morbidity and mortality.  And now comes evidence that exposure to PM2.5 may adversely impact cognitive capacity as well.  If the evidence is correct, then the externalities created by activities that release PM2.5 are likely much more significant than we had realized, shifting the cost/benefit analysis even further towards more stringent regulation of particulate exposure.

The recent work is summarized in a fascinating new episode of Freakonomics Radio.  The episode is not just about the impacts of PM2.5 on cognition.  It also includes a discussion of what could be considered early environmental justice impacts of industrialization.  Over the course of the 19th Century, as coal combustion increased dramatically, population shifts occurred, with the result being that, by the end of the 19th Century, poor people came to live in the more heavily polluted areas.  Cause and effect aren’t clear, but the disproportionate impacts seem pretty well established and should be of concern whatever the cause.

As to cognition, let’s just say that the science is not fully developed.  Still, I’ll give the perfect blog teaser to pique your interest.  Freakonomics discusses a study that shows that baseball umpires make more mistakes when the game is played in an area with higher PM2.5 concentrations.  I love this.  Someone actually came up with the idea of studying umpires’ performance to measure the impact of PM2.5 on productivity.

Time will tell whether PM2.5 exposure really does affective cognitive ability.  However, this much I do know – the epidemiological evidence has been pretty much running in one direction:  the more we know about PM2.5, the worse it looks, and the more it seems that stringent regulation of PM2.5 is justified.

Climate Change Is Widespread, Rapid, and Intensifying — And Terrifying

The IPCC has released its Sixth Assessment Report on the physical science basis of climate change.  I would say that it makes sobering reading, except any sane person’s immediate response to AR6 would be to go out and have any number of stiff drinks.  Here are a number of the lowlights:

It is unequivocal that human influence has warmed the atmosphere, ocean and land. Widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred.

Global surface temperature has increased faster since 1970 than in any other 50-year period over at least the last 2000 years.

Human-induced climate change is already affecting many weather and climate extremes in every region across the globe.

Global surface temperature will continue to increase until at least the mid-century under all emissions scenarios considered. Global warming of 1.5°C and 2°C will be exceeded during the 21st century unless deep reductions in CO2 and other greenhouse gas emissions occur in the coming decades.

Many changes due to past and future greenhouse gas emissions are irreversible for centuries to millennia, especially changes in the ocean, ice sheets and global sea level.

In the longer term, sea level is committed to rise for centuries to millennia due to continuing deep ocean warming and ice sheet melt, and will remain elevated for thousands of years. (My emphasis.)

Here are my key takeaways from the IPCC:

  • Over time, all of the uncertainties in climate science have resolved towards greater certainty of more significant impacts.  It’s time for the skeptics to stop pointing to uncertainty as an argument against aggressive action.
  • On a more mundane point, I agree with Mike Gerrard (subscription required) that the IPCC now provides sufficient evidence of attribution to have real potential to impact climate change litigation.
  • The increasing pace of climate change might give climate change hawks some well-deserved schadenfreude, since now skeptics will still be alive when the proof is delivered that climate change is real – if it weren’t such an utter disaster for everyone.
  • And finally – the scope of the disaster cannot result in paralysis.  Back to one of my favorite texts:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

Can “Guidance” Ever Be Binding?

Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits.  The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.

May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?”  Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?”  If not, then the word “nonbinding” would be redundant.  I only wish that it were so.

I’ve ranted on this subject often, I know.  The rant remains valid.  The essence of the problem is that however “nonbinding” the writers of any particular guidance intend it to be, the bureaucrats who implement the guidance can easily convert it into that beautiful misnomer – binding guidance.  And if it’s binding, then it’s a regulation; it’s no longer guidance.

The Court may have gotten this one right.  I’m not sure I agree with the Court’s characterization of EPA’s use of the Guidance here as merely a “mild suggestion,” but it does appear that the TST is not being applied as a ukase.

Still, this case, and others like it, suggest that Courts really need to leave open the possibility of “as applied” challenges to this type of guidance.  If those implementing “nonbinding guidance” treat it as binding, then courts should do so as well – and the formerly “nonbinding guidance” should then be subject to judicial review as final agency action.