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 180^o 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.