On Petition for Review of Final Action of the United States Environmental Protection Agency
The opinion of the court was delivered by: Williams, Senior Circuit Judge:
Argued September 12, 2012
Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Opinion concurring in the judgment filed by Circuit Judge HENDERSON.
Sierra Club here challenges a "Determination" of the Environmental Protection Agency. In the Determination, EPA announced that it had met the regulatory obligations imposed on it by § 112(c)(6) of the Clean Air Act ("CAA"), 42 U.S.C. § 7412(c)(6). We conclude that the Determination is a legislative rulemaking subject to the notice-and-comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553. Because EPA issued the Determination without providing notice and opportunity for comment, we vacate and remand for the agency to follow those procedures.
In 1990 Congress amended the CAA to assign EPA the following duty:
With respect to [seven specified hazardous air pollutants ("HAPs")], the Administrator shall, not later than five years after November 15, 1990, list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4) of this section. Such standards shall be promulgated not later than 10 years after November 15, 1990.
42 U.S.C. § 7412(c)(6). The obligation thus comprises both listing sources (due by November 15, 1995) and promulgating standards (due by November 15, 2000).
In 1998 EPA published its conclusion that it had satisfied its duty to list sources, a conclusion Sierra Club immediately challenged. But the CAA specifically precluded review of the agency's source-listing under § 112(c)(6) until the agency had issued emissions standards thereunder, 42 U.S.C. § 7412(e)(4), so we dismissed the challenge, without prejudice to the Sierra Club's seeking review once EPA issued standards. Sierra Club v. EPA, No. 98-1270, 1998 WL 849408 (D.C. Cir. Nov. 24, 1998).
EPA's listing of sources and promulgation of standards continued after its 1998 rulemaking, and well after the statutory deadline. As to sources, it made successive adjustments in the 1998 list by adding new sources and delisting old ones. See, e.g., 76 Fed. Reg. 9450/1 (Feb. 17, 2011) (adding gold mine source category); 73 Fed. Reg. 1916/1 (Jan. 10, 2008) (finalizing decision not to regulate gasoline distribution area sources); 72 Fed. Reg. 53,814/1 (Sept. 20, 2007) (listing electric arc furnace steelmaking facilities as an area source); 67 Fed. Reg. 68,124/1 (Nov. 8, 2002) (delisting asphalt hot-mix production, fabricated metal products, paint and allied products, paper coated and laminated, packaging and transportation equipment manufacturing, and open burning of scrap tires as area source categories).
As to emissions standards, it continued to set such standards for a variety of sources, sometimes in an express effort to satisfy its § 112(c)(6) obligations, see, e.g., 76 Fed. Reg. 15,554/1, 15,556 (Mar. 21, 2011) (setting emissions standards for 112(c)(6) chemicals emitted by industrial, commercial, and institutional boilers), sometimes with no reference to § 112(c)(6), see, e.g., 62 Fed. Reg. 52384/1 (Oct. 7, 1997) (setting emissions standards for Primary Aluminum Reduction Plants, with specific reference to chemicals listed in § 112(b), but not § 112(c)(6)).
Despite its activities in this area, EPA failed to meet the statutory deadline of November 15, 2000. In 2001 Sierra Club filed suit in district court to compel timely compliance. Sierra Club v. Whitman, No. 01-1558, (D.D.C. filed July 18, 2001). EPA responded with an argument that such a suit was an inappropriate remedy for any omissions in its fulfillment of its § 112(c)(6) duties. Rather, it pointed to the declaration it had filed with the court saying that it intended, once it completed emissions standards for remaining source categories, to "issue a notice that explains how it has satisfied the requirements of [§] 112(c)(6) in terms of issuing standards for source categories that account ...