The Wehrum Memo Still Isn’t Final Agency Action

The D.C. Circuit Court of Appeals has denied the petition for rehearing in the “once in, always in” case.  It was a one sentence order.  Judge Rogers, who dissented from the original panel opinion, dissented from the denial.  Judge Rogers is still right.

The Wehrum Memo has – by intent – caused a 180o turn in how EPA handles MACT jurisdictional decisions.  I remain of the view that the panel decision is inconsistent with the D.C. Circuit’s prior opinion in Appalachian Power Company v. EPA.  I also think that those in the regulated community who like the substance of the Wehrum Memo should be careful what they wish for.  This decision is going to come back to haunt them.  The regulated community has always been rightly concerned about agencies’ ability effectively to regulate through guidance.  Now, agencies may do so with much less concern about being subject to judicial review.

It’s more than a little ironic that the administration that has raged against agency use of guidance did not hesitate to make a major policy change through guidance.  I think it was Emerson who said that a foolish consistency is the hobgoblin of people who are not very stable geniuses.

Finally, I’ll also note briefly that, while people may disagree about the merits of the policy, it’s not obvious to me that the Wehrum Memo is wrong as a matter of law.  From a common sense perspective, I think it would seem odd to most people, including judges who are not steeped in the Clean Air Act, that a jurisdictional determination remains in place forever, even if the underlying facts supporting that determination change.

However, as Judge Rogers noted, we now won’t know the answer to that question unless/until an individual Title V permit that raises this issue gets challenged.

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