Chevron U.s.a. Inc. v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2022 Decided August 12, 2022
No. 21-1140
CHEVRON U.S.A. INC.,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
On Petition for Review of an Action
of the Environmental Protection Agency
Catherine E. Stetson argued the cause for petitioner. With
her on the briefs were Ashley C. Parrish, Ilana Saltzbart,
Marcella Burke, I. Cason Hewgley IV, Sean Marotta, and
Danielle Desaulniers Stempel.
Andrew R. Varcoe, Stephanie A. Maloney, Thomas A.
Lorenzen, and Elizabeth B. Dawson were on the brief for
amicus curiae the Chamber of Commerce of the United States
of America in support of petitioner.
Phillip R. Dupré, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for respondent.

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Before: SRINIVASAN, Chief Judge, TATEL and PILLARD,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Chevron U.S.A. Inc. intends to
decommission two oil platforms located off the coast of
California. The activity of those platforms is generally subject
to the Clean Air Act. Chevron asked the Environmental
Protection Agency for guidance on whether, as the process of
decommissioning the two oil platforms moves forward, the
platforms will cease to qualify as regulated sources under the
Clean Air Act. EPA responded in a letter to Chevron.
Unsatisfied with the views set out in EPA’s letter, Chevron
now seeks judicial review of EPA’s response.
We do not reach the merits of Chevron’s petition for
review. In the circumstances of this case, the Clean Air Act’s
venue provision allows for judicial review in this court only if
EPA’s challenged action is “nationally applicable,” as opposed
to “locally or regionally applicable.” 42 U.S.C. § 7607(b)(1).
We conclude that EPA’s response letter is locally or regionally
applicable, and that venue over Chevron’s challenge lies
exclusively in the United States Court of Appeals for the Ninth
Circuit. We therefore dismiss Chevron’s petition for review.
 Judge Tatel, who assumed senior status after this case was
argued and before the date of this opinion, recused himself from the
case after oral argument.

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I.
A.
The Clean Air Act requires the EPA Administrator “to
control air pollution from Outer Continental Shelf sources
located offshore of the States” along much of the nation’s
coastline, including the Pacific Coast. 42 U.S.C. § 7627(a)(1).
The “Outer Continental Shelf” (OCS) refers to “all submerged
lands lying seaward and outside of the area of lands beneath
navigable waters . . . and of which the subsoil and seabed
appertain to the United States and are subject to its jurisdiction
and control.” 43 U.S.C. § 1331(a). OCS “sources” subject to
the Clean Air Act “include any equipment, activity, or facility”
that “emits or has the potential to emit any air pollutant,”
including “platform and drill ship exploration, construction,
development, production, processing, and transportation.” 42
U.S.C. § 7627(a)(4)(C).
States adjacent to OCS sources may assume delegated
authority for implementing and enforcing Clean Air Act
requirements applicable to OCS sources. See id. § 7627(a)(3).
If the Administrator determines that a State’s proposed
regulations are adequate, “the Administrator shall delegate to
that State any authority the Administrator has . . . to implement
and enforce such requirements.” Id.
In 1994, the Ventura County Air Pollution Control District
requested the delegated authority to implement and enforce
OCS regulations within 25 miles of California’s seaward
boundary. EPA approved the request, and the District and EPA
entered into an agreement governing the delegation. Under the
delegation agreement, the District issues the required OCS
permits to operators. EPA may review the permits for
consistency with federal regulations. The agreement also

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provides that the District will request EPA guidance on certain
matters involving the interpretation of the Clean Air Act.
B.
Petitioner Chevron U.S.A. Inc. formerly operated two oil
and gas platforms—the Gail and Grace platforms—located on
the OCS within 25 miles of Ventura County, California.
Chevron sold the Gail and Grace platforms to another operator
in 1999. The successor abandoned the lease without
decommissioning the platforms. The Department of Interior’s
Bureau of Safety and Environmental Enforcement then
directed Chevron to decommission the platforms.
Decommissioning is the process of ending oil and gas
operations at a platform and removing associated equipment.
See 30 C.F.R. § 250.1700(a). Given the size of oil platforms
and the scale of their operations, decommissioning proceeds in
several stages and can take years to complete. The first phases
are known as Pre-Abandonment and Abandonment, and they
consist in part of plugging the platform’s oil and gas wells and
preparing the topside (the portion of the platform above the
water) for removal. The next two phases involve removal of
the topside and then of the jacket (the portion of the platform
that formerly held the topside and is positioned on the ocean
floor). The final phases entail removal of debris and processing
and disposal of platform components onshore.
The Gail and Grace platforms are OCS sources and thus
are subject to operating permits issued by the District under
Title V of the Clean Air Act. See 42 U.S.C. § 7627(a)(4)(C);
40 C.F.R. § 55.6. In September 2020, as part of its
decommissioning preparation, Chevron requested guidance
from EPA. Chevron inquired whether, following the
completion of the Pre-Abandonment and Abandonment

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phases, the platforms would continue to qualify as OCS sources
subject to permitting requirements. Letter from Walid Masri,
Program Dir., W. Coast Decommissioning Program, Chevron
U.S.A. Inc., to Anne Austin, Principal Deputy Assistant Adm’r
for the Office of Air and Radiation, Env’t Protection Agency
(Sept. 8, 2020), J.A. 112–20 [Chevron Ltr.]. Chevron
contended that, following Pre-Abandonment and
Abandonment, the platforms would no longer emit or have the
potential to emit any air pollutant and thus should no longer
qualify as OCS sources. Id. at 2, J.A. 113.
In January 2021, EPA sent an initial letter responding to
Chevron. Letter from Karl Moor, Deputy Assistant Adm’r for
the Office of Air and Radiation, Env’t Protection Agency, to
Walid Masri, Program Dir., W. Coast Decommissioning
Program, Chevron U.S.A. Inc. (Jan. 19, 2021), J.A. 121–26
[Jan. Ltr.]. EPA stated that the Gail and Grace platforms “will
cease to be [OCS] sources following the completion of the Pre-
Abandonment and Abandonment phases of the
decommissioning process” described by Chevron. Id. at 1, J.A.
121. The agency reasoned that, once the platforms no longer
emitted or had the potential to emit pollutants per Chevron’s
representation, the platforms would no longer meet the OCS
source definition. Id. at 4–5, J.A. 124–25.
In April 2021, EPA sent a second letter to Chevron
revising the position taken in the January letter. Letter from
Joseph Goffman, Acting Assistant Adm’r, Env’t Protection
Agency, to Walid Masri, Program Dir., W. Coast
Decommissioning Program, Chevron U.S.A. Inc. (Apr. 20,
2021), J.A. 127–30 [Apr. Ltr.]. The agency explained that the
January letter “did not sufficiently evaluate the possibility that
additional activity conducted at the site or equipment used to
dismantle the Platforms after the Pre-Abandonment and
Abandonment phases may be classified as an ‘OCS source’

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under certain conditions.” Id. at 2, J.A. 128. Whether Chevron
would require an OCS permit for the platforms at that time thus
would depend “on whether other equipment or facilities
brought to the site (e.g., vessels or barges) or new activities
conducted at the site qualify as an OCS source for some period
after the completion of” those phases. Id. EPA further noted
that the dismantling, demolition, or deconstruction of a
platform could be “viewed to be similar” to the non-exclusive
list of activities included in the statutory definition of OCS
source—platform and drill ship exploration, construction,
development, production, processing, and transportation. Id. at
3, J.A. 129.
The agency also emphasized that it had “failed to
recognize” in the January letter “that the delegated OCS
permitting authority for the Platforms, the Ventura County Air
Pollution Control District . . . is the appropriate authority to
make an applicability determination in this case, in
consultation with EPA, after a more detailed evaluation of the
activities to be conducted and equipment to be used at the site
after the Pre-Abandonment and Abandonment phases [are]
completed.” Id. at 2, J.A. 128. “Given the importance of these
facts to this determination,” EPA explained, it “encourage[d]
[Chevron] to provide detailed information to the District about
Chevron’s proposed decommissioning activities so that the
District can take such information into account” in determining
the applicability of OCS requirements. Id. at 3, J.A. 129.
Chevron filed a petition for review of the April letter in
this court. Chevron challenges the interpretation advanced by
EPA in its April letter as inconsistent with the terms of the
Clean Air Act. EPA defends the interpretation in the April
letter on the merits, but also first raises various threshold
grounds for dismissing Chevron’s petition, including that the
letter was not final agency action and that venue for this action

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lies only in the Ninth Circuit. Chevron, anticipating the venue
objection, filed a protective petition for review in the Ninth
Circuit at the same time it filed its petition for review in this
court. See Chevron U.S.A. Inc. v. EPA, No. 21-71132 (9th Cir.
June 21, 2021). Those proceedings have been held in abeyance
pending resolution of this petition.
II.
We do not reach the merits of Chevron’s challenge
because we conclude that venue in this matter lies exclusively
in the Ninth Circuit. We begin by explaining that we can
dismiss the petition on venue grounds without first needing to
decide whether the petition seeks review of a final agency
action. We then determine that EPA’s challenged action—the
agency’s April letter to Chevron—is “locally or regionally
applicable” rather than “nationally applicable,” such that
Chevron’s challenge belongs in the Ninth Circuit rather than in
our court. 42 U.S.C. § 7607(b)(1).
A.
As threshold grounds for dismissing Chevron’s petition for
review, EPA argues both that the April letter is not final agency
action and that venue over Chevron’s challenge lies in the
Ninth Circuit. The Clean Air Act’s requirement of a final
agency action is jurisdictional. See Valero Energy Corp. v.
EPA, 927 F.3d 532, 536 (D.C. Cir. 2019). The Clean Air Act’s
venue requirements, on the other hand, are nonjurisdictional.
See Sierra Club v. EPA, 926 F.3d 844, 848 (D.C. Cir. 2019).
The question thus arises whether we can decide this matter on
a nonjurisdictional venue ground without first resolving
whether the April letter is final agency action such that we
would have jurisdiction to review it.

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Steel Co. v. Citizens for a Better Environment, 523 U.S. 83
(1998), established “that a federal court generally may not rule
on the merits of a case without first determining that it has
jurisdiction.” Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 430–31 (2007) (citing Steel Co., 523 U.S.
at 93–102). But, while a court “may not rule on the merits of a
case” without jurisdiction, it can consider certain threshold,
non-merits grounds without needing to resolve its jurisdiction.
Id. at 430–31. In other words, “Steel Co.’s rule of priority does
not invariably require considering a jurisdictional question
before any nonjurisdictional issue. Rather, courts may address
certain nonjurisdictional, threshold issues before examining
jurisdictional questions.” Kaplan v. Cent. Bank of the Islamic
Republic of Iran, 896 F.3d 501, 513 (D.C. Cir. 2018).
Here, the question is whether venue is the kind of
threshold, nonjurisdictional issue that can be addressed without
first examining jurisdiction. An “issue can qualify as a
threshold one of that kind only if it can occasion a ‘[d]ismissal
short of reaching the merits.’” Id. (quoting Sinochem, 549 U.S.
at 431)). Venue fits squarely in that category. The Supreme
Court’s decision in Sinochem directly points the way to that
conclusion.
Sinochem considered “whether forum non conveniens can
be decided prior to matters of jurisdiction.” 549 U.S. at 428–
29. The Supreme Court answered yes, explaining that a “forum
non conveniens dismissal denies audience to a case on the
merits; it is a determination that the merits should be
adjudicated elsewhere.” Id. at 432 (citation, alteration, and
quotation marks omitted). The “critical point . . . rendering a
forum non conveniens determination a threshold, nonmerits
issue,” the Court reasoned, “is simply this: Resolving a forum
non conveniens motion does not entail any assumption by the

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court of substantive law-declaring power.” Id. at 433
(quotation marks omitted).
All of that is equally true of venue. Venue, like forum non
conveniens, involves “a determination that the merits should be
adjudicated elsewhere.” Id. at 432. And when a court disposes
of a case on grounds of improper venue, the court does not draw
upon its “substantive law-declaring power.” Id. at 433
(quotation marks omitted). As is the case with forum non
conveniens, venue involves a “[d]ismissal short of reaching the
merits,” such that “the court will not proceed at all to an
adjudication of the cause.” Id. at 431 (quotation marks
omitted); see Kaplan, 896 F.3d at 513. Indeed, the Supreme
Court has “characterized forum non conveniens as, essentially,
a supervening venue provision,” and the general federal
change-of-venue statute, 28 U.S.C. § 1404(a), codifies the
“common-law doctrine of forum non conveniens.” Sinochem,
549 U.S. at 429–30 (quotation marks and citation omitted).
The close association between forum non conveniens and
venue cements the conclusion that venue, like forum non
conveniens, is a threshold, non-merits issue that a court can
address without first establishing its jurisdiction. Accord ATK
Launch Sys., Inc. v. EPA, 651 F.3d 1194, 1200 (10th Cir.
2011); In re LimitNone, LLC, 551 F.3d 572, 576–77 (7th Cir.
2008).
B.
Having determined that we may dismiss Chevron’s
petition for review for improper venue without first deciding
whether EPA’s April letter constituted final agency action, we
now proceed to address the venue question.
The Clean Air Act’s venue provision states in relevant
part:

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A petition for review of action of the
Administrator in promulgating any national
primary or secondary ambient air quality
standard . . . or any other nationally applicable
regulations promulgated, or final action taken,
by the Administrator under this chapter may be
filed only in the United States Court of Appeals
for the District of Columbia. A petition for
review of the Administrator’s action in
approving or promulgating any implementation
plan . . . or any other final action of the
Administrator under this chapter . . . which is
locally or regionally applicable may be filed
only in the United States Court of Appeals for
the appropriate circuit. Notwithstanding the
preceding sentence a petition for review of any
action referred to in such sentence may be filed
only in the United States Court of Appeals for
the District of Columbia if such action is based
on a determination of nationwide scope or effect
and if in taking such action the Administrator
finds and publishes that such action is based on
such a determination.
42 U.S.C. § 7607(b)(1).
That provision sets out “two routes for venue to be proper
in this court.” Sierra Club, 926 F.3d at 849. First, EPA’s
challenged “action may itself be nationally applicable.” Id.
“Second, EPA’s Administrator may determine that the
otherwise locally or regionally applicable action has
nationwide scope or effect and publish his finding.” Id. Here,
no one contends that the Administrator made the requisite

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finding about the April letter for purposes of the second route,
so the first route is the only one available to Chevron.
The dispositive question, then, is whether the April letter
is “nationally applicable” or “locally or regionally applicable.”
In answering that question, we “look only to the face of the
agency action, not its practical effects.” Id.; see Dalton
Trucking, Inc. v. EPA, 808 F.3d 875, 881 (D.C. Cir. 2015). The
quintessential example of a “nationally applicable” EPA action
that may be challenged only in this court is a regulation that
uniformly applies nationwide. See NRDC v. Thomas, 838 F.2d
1224, 1249 (D.C. Cir. 1988). At the other end of the spectrum,
approving or promulgating a State Implementation Plan “is the
prototypical ‘locally or regionally applicable’ action that may
be challenged only in the appropriate regional court of
appeals.” Am. Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d
453, 455 (D.C. Cir. 2013).
The April letter falls comfortably in the category of
“locally or regionally applicable” actions. Our recent decision
in Sierra Club v. EPA is instructive. There, we held that an
EPA order denying Sierra Club’s petition for objection to
renewal of an operating permit was locally or regionally
applicable. See Sierra Club, 926 F.3d at 849. We reasoned
that the order “denies Sierra Club’s petition for objection to a
single permit for a single plant located in a single state,” and it
thus had “immediate effect” only for that power plant. Id. We
also emphasized that the Administrator confined his “novel
interpretation of Title V” of the Clean Air Act “to the specific
circumstances” of the individual power plant in question. Id.
at 850.
Under the logic of Sierra Club, the April letter, too, is
locally or regionally applicable. The letter’s subject line reads:
“Additional Environmental Protection Agency (EPA) Views

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on Outer Continental Shelf Decommissioning Activities at
Chevron U.S.A. Inc. Gail and Grace Platforms.” Apr. Ltr. 1,
J.A. 127. That subject line conveys EPA’s intention to set forth
views pertaining to the Gail and Grace platforms in particular.
The letter correspondingly “has immediate effect” only on
Chevron’s decommissioning activities at those platforms.
Sierra Club, 926 F.3d at 849. The letter immediately affects
no other platforms in the OCS nor any decommissioning
activities outside those conducted at Chevron’s two facilities.
It speaks to decommissioning activities occurring at two
specific platforms off the coast of Ventura County, California,
in the Ninth Circuit’s region.
The April letter reconfirms in numerous ways its focus on
the specific circumstances of the decommissioning activities at
the Gail and Grace platforms. The letter references the need to
evaluate “the activities to be conducted and equipment to be
used at the site”; to consider “whether other equipment or
facilities brought to the site (e.g., vessels or barges) or new
activities conducted at the site qualify as an OCS source”; and
to understand “Chevron’s proposed decommissioning process
for the Platforms, including the type of equipment to be used.”
Apr. Ltr. 2–3, J.A. 128–29 (emphasis added). In those respects,
the April letter, like EPA’s action in Sierra Club, focuses by its
terms on “the circumstances presented here” in an “avowedly
case-specific” analysis. 926 F.3d at 850 (quotation marks
omitted). And the April letter also emphasizes the central role
played by the local agency, the “Ventura County Air Pollution
Control District,” as “the appropriate authority to make an
applicability determination in this case”—a consideration
firmly in keeping with a locally applicable determination but
markedly incongruous with a nationally applicable one. Apr.
Ltr. 2, J.A. 128.

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It is true that, in the course of the April letter, EPA
construed and applied nationally applicable provisions of the
Clean Air Act and their implementing regulations. But many
locally or regionally applicable actions may require
interpretation of the Clean Air Act’s statutory terms, and that
kind of interpretive exercise alone does not transform a locally
applicable action into a nationally applicable one. We thus
explained in Sierra Club that if “EPA relies on the statutory
interpretation set forth in the Order” under review in that case
“in future adjudications or other final agency action, it will be
subject to judicial review upon challenge.” 926 F.3d at 849.
And the fact “[t]hat the interpretative reasoning offered by the
Administrator in denying Sierra Club’s petition for objection
has precedential effect in future EPA proceedings is typical of
adjudicative orders, including regionally and locally
applicable ones.” Id. at 850 (emphasis added). As a result, that
a challenged action “applies a broad regulation to a specific
context” and “may set a precedent for future . . . proceedings”
does not make it nationally applicable. Am. Rd. & Transp.
Builders Ass’n, 705 F.3d at 456.
Chevron argues that, because EPA’s April letter displaced
its previous, January letter, and because the January letter was
a nationally applicable action, the April letter must be
nationally applicable as well. Chevron’s challenge is solely to
the April letter, not the January one. And we do not take as a
given that a nationally applicable action could be displaced
only by another nationally applicable action: one could
imagine situations in which EPA might withdraw a nationally
applicable resolution in favor of a locally applicable one. At
any rate, even assuming Chevron is correct that the April letter
would be considered nationally applicable if the January one
was too, we disagree with Chevron’s assumption about the
January letter.

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As with the April letter, the face of the January letter
speaks in localized terms. The subject line of the January letter
reads: “Applicability Determination for Outer Continental
Shelf Decommissioning Activities at Chevron U.S.A. Inc. Gail
and Grace Platforms.” Jan. Ltr. 1, J.A. 121. And the letter’s
immediate effects were correspondingly confined,
contemplating that Chevron could surrender its OCS permits
only for those platforms. EPA explicitly stated, moreover, that
the letter was “predicated on the specific facts described in the
September 8, 2020 Chevron Letter.” Id. at 2, J.A. 122. And
the agency added that, “[u]nder the specific circumstances
described in the Chevron Letter, EPA agrees with Chevron that
the Platforms would cease to be OCS sources after the Pre-
Abandonment and Abandonment phases described by
Chevron, and, therefore, would no longer [be] subject to
requirements applicable to OCS sources.” Id. at 4, J.A. 124
(emphasis added). EPA similarly emphasized that “under the
specific circumstances described in the Chevron Letter, EPA
concludes that associated vessel emissions alone are not
sufficient to satisfy the potential to emit criteria of the OCS
source definition.” Id. (emphasis added).
In short, as it did in the April letter, EPA repeatedly
confined the January letter to the specific, local circumstances
under which it arose. That bespeaks a locally or regionally
applicable action, not a nationally applicable one. See Sierra
Club, 926 F.3d at 850. Venue over a challenge to such an
action does not lie in our court, but lies exclusively in the
“appropriate circuit,” 42 U.S.C. § 7607(b)(1)—here, the Ninth
Circuit, where Chevron has filed a protective petition for
review. We thus dismiss Chevron’s petition for review in this
court, enabling its Ninth Circuit action to proceed.

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* * * * *
For the foregoing reasons, we dismiss Chevron’s petition
for review for lack of venue without reaching the merits.
So ordered.

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