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Administrative Law Keyed to Funk
California Communities Against Toxics v. Environmental Protection Agency
Citation:
934 F.3d 627 (2019)Facts
In January 2018, the EPA issued a guidance memorandum titled “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act,” which reversed the agency’s longstanding “once in, always in” policy regarding the classification of major sources of hazardous air pollutants. Under the previous policy, facilities classified as “major sources” remained subject to stricter emission standards even if they reduced their emissions below the major source threshold. The new guidance allowed sources to be reclassified as “area sources” subject to less stringent requirements if they limited their emissions below the threshold. The EPA issued this guidance without going through notice-and-comment rulemaking procedures. California Communities Against Toxics and other environmental organizations petitioned for review, arguing that the guidance was a legislative rule requiring notice-and-comment rulemaking and that it was arbitrary and capricious.
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