Chevron U.S.A. Inc. v. Usepa ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEVRON U.S.A. INC., No. 21-71132
Petitioner,
v. MEMORANDUM*
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted August 17, 2023
Anchorage, Alaska
Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.
Chevron U.S.A. Inc. petitions for review of an April 2021 letter from the
Environmental Protection Agency (“EPA”) to Chevron regarding section 328 of
the Clean Air Act, 42 U.S.C. § 7627, and its implementing regulations, 40 C.F.R.
pt. 55. In the April letter, which superseded a January 2021 letter, EPA stated that
Chevron may be subject to the Clean Air Act when decommissioning oil and gas
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
drilling platforms located on the Outer Continental Shelf (“OCS”), even after
Chevron plugs the wells and removes all emission-generating equipment from the
platforms (“Abandonment”), depending on any additional activity that Chevron
conducts at the platform sites. Because the April letter was not final agency action,
however, we lack jurisdiction to review any conclusions that EPA expressed in it.
See 42 U.S.C. § 7607(b); S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564,
571 (9th Cir. 2019). We therefore dismiss the petition.
Agency action is generally final when it (1) “mark[s] the consummation of
the agency’s decisionmaking process” and (2) is action “by which rights or
obligations have been determined, or from which legal consequences will flow.”
U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597 (2016) (quoting
Bennett v. Spear, 520 U.S. 154, 178 (1997)).
1. Chevron contends that the April letter was final agency action “because
it repealed the January Letter, which was itself final action.” We assume for the
sake of argument that the January letter was final agency action because in that
letter EPA determined that it and the Ventura County Air Pollution Control District
(“APCD”) would lack jurisdiction under the Clean Air Act to regulate Chevron’s
post-Abandonment decommissioning activity. See Navajo Nation v. U.S. Dep’t of
the Interior, 819 F.3d 1084, 1091 (9th Cir. 2016). But it does not follow that the
April letter was also final action just because it superseded the January letter.
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While the January letter might have given Chevron an estoppel defense if
EPA had brought an enforcement proceeding while the letter was in effect, see
Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 596 n.12
(9th Cir. 2008), it contained no legally enforceable promise that EPA would not
change its position. Cf. Hawkes, 578 U.S. at 598 (explaining that by regulation and
agreement, an Army Corps of Engineers determination that a property does not
contain waters of the United States prohibits the government from initiating
enforcement proceedings under the Clean Water Act against the property owner for
five years). Indeed, it is “common” for agencies to revise their conclusions. Id.
Therefore, by superseding the January letter, EPA did not determine any rights or
obligations or impose any legal consequences; it merely returned Chevron to a
state of regulatory uncertainty.
2. Chevron also contends that “the April Letter standing alone satisfies
both Bennett requirements.” As to the first requirement, we assume for the sake of
argument that the April letter marked the consummation of EPA’s decisionmaking
process regarding EPA’s two conclusions at issue here: that “additional activity
conducted at the site or equipment used to dismantle the Platforms . . . may be
classified as an ‘OCS source’ under certain conditions” (the “jurisdictional
conclusion”); and that the Ventura County APCD “is the appropriate authority” to
determine whether a permit is needed after considering “detailed information . . .
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about Chevron’s proposed decommissioning activities” and “consult[ing] with
[EPA]” (the “delegation conclusion”).
As to the second Bennett requirement, EPA’s jurisdictional conclusion did
not determine any rights or obligations or impose any legal consequences because
it remains unsettled whether Chevron’s later-stage decommissioning activity will
be subject to section 328 and require a permit. Although EPA “encourage[d]”
Chevron to provide information to the Ventura County APCD, Chevron has no
obligation to do so or even to seek further agency guidance regarding when it will
no longer need permits. And it remains uncertain whether Chevron’s site-specific
plans will require permits for the equipment and activity. EPA’s jurisdictional
conclusion is thus analogous to a preliminary jurisdictional determination under
the Clean Water Act, which “merely advise[s] a property owner ‘that there may be
waters of the United States on a parcel’” and does not constitute final agency
action. Hawkes, 578 U.S. at 595 (quoting 33 C.F.R. § 331.2).
EPA’s delegation conclusion did not “fix some legal relationship as a
consummation of the administrative process.” Or. Nat. Desert Ass’n v. U.S. Forest
Serv., 465 F.3d 977, 987 (9th Cir. 2006) (quoting Ukiah Valley Med. Ctr. v. FTC,
911 F.2d 261, 264 (9th Cir. 1990)). Although an agency’s change in delegation
policy can be a final, appealable decision, see Assiniboine & Sioux Tribes of Fort
Peck Indian Rsrv. v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 789–90 (9th
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Cir. 1986), EPA’s restatement of its delegation policy lacks finality. The April
letter did not alter the existing 1994 delegation agreement between EPA and the
Ventura County APCD. EPA merely explained that under that agreement, the
Ventura County APCD makes permitting decisions after consulting with EPA
about how to interpret section 328 and its regulations. See S.F. Herring Ass’n, 946
F.3d at 581 (acknowledging that “opinions restating the law” do not satisfy the
second Bennett requirement).
DISMISSED.
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