Cluster 730819

Proposed rules meet neither of the two requirements for final agency action: (i) They are not the “consummation of the agency’s decisionmaking process,” and (ii) they do not determine “rights or obligations,” or impose “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted); see also American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C.

Proposed rules meet neither of the two requirements for final agency action: (i) They are not the “consummation of the agency’s decisionmaking process,” and (ii) they do not determine “rights or obligations,” or impose “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted); see also American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C.

Portland Cement All. v. EPA, 101 F.3d 772, 776 (D.C.

Portland Cement All. v. EPA, 101 F.3d 772, 777 (D.C.

Portland Cement All. v. EPA, 101 F.3d 772, 776 (D.C.

Portland Cement All. v. EPA, 101 F.3d 772, 776 (D.C.

Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C.

Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C.

Portland Cement Alliance v. E.P.A., 101 F.3d 772, 774 (D.C.Cir.1996) (citing Chem.

Portland Cement Alliance v. EPA 101 F.3d 772, 774 (D.C.Cir.1996) (citation omitted).

Furthermore, the APA “recognizes that agency rulemaking can occur in stages, and that review of initial steps should generally be deferred until the regulatory process is complete.” American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

Protection Agency, 101 F.3d 772, 776 (D.C.Cir.1996) (“In examining whether agency actions are subject to judicial review, the court has looked to a variety of criteria, including the agency’s own characterization of its action, publication or lack thereof in the Federal Register or the Code of Federal Regulations, and whether the action has a binding effect on the rights of parties, and on the agency’s ability to exercise discretion in the future.”).

Portland Cement Alliance v. EPA, 101 F.3d 772, 779 (D.C.Cir.1996).

Portland Cement Alliance v. EPA, 101 F.3d 772, 779 (D.C.

See also Penn-hurst State School & Hosp. v. Halderman, 465 U.S. 89, 119 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984) (" 'When questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.’ ” (quoting Hagans v. Lavine, 415 U.S. 528 , 533 n. 5, 94 S.Ct. 1372 , 39 L.Ed.2d 577 (1974))); and American Portland Cement Alliance v. Environmental Protection…

Cir. 1996) 101 F.3d 772, 775-776 [concluding that court lacked subject matter jurisdiction to review certain Environmental Protection Agency determinations despite two prior cases in which court had exercised jurisdiction to review such determinations; issue of jurisdiction had not been presented in earlier cases].) Cases from other states are similarly unhelpful.

(See American Portland Cement Alliance v. E.P.A (D.C.Cir.1996) 101 F.3d 772, 775-776 [concluding that court lacked subject matter jurisdiction to review certain EPA determinations despite two prior cases in which court had exercised jurisdiction to review such determinations; issue of jurisdiction had not been presented in earlier cases].) Cases from other states are similarly unhelpful.

Subtitle C of RCRA, see 42 U.S.C. § 6921 et seq., “establishes a ‘cradle to grave’ federal regulatory system for the treatment, storage, and disposal of hazardous wastes.” American Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C.Cir.1996) (quoting Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334 , 337 n. 1, 112 S.Ct. 2009 , 119 L.Ed.2d 121 (1992)).

American Portland Cement Alliance v. E.P.A., 101 F.3d 772, 776 (D.C.

A. Subtitle C of RCRA, see 42 U.S.C. §§ 6921 -6939e, “establishes a ‘cradle to grave’ federal regulatory system for the treatment, storage, and disposal of hazardous wastes.” American Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C.Cir.1996).

Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

Agency, 101 F.3d 772, 776 (D.C.Cir.1996); Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595-96 (5th Cir.1995); Rapp v. United States Dep’t of Treasury, Office of Thrift Supervision, 52 F.3d 1510 , 1522 (10th Cir.1995).

The EPA urges the court to consider three factors: “(1) the Agency’s own characterization of its action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency.” Molycorp, Inc., 197 F.3d at 545 ; see also Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C.Cir.1998); American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

See, e.g., Appalachian Power Co. v. EPA 208 F.3d at 1022-23 ; Pacific Gas and Electric Co. v. Federal Power Commission, 506 F.2d 33, 37-38 (D.C.Cir.1974); McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1319-20 (D.C.Cir.1988); Bechtel v. FCC, 10 F.3d 875, 878 (D.C.Cir.1993); American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

American Portland Cement, 101 F.3d at 777 (citation omit- ted).

American Portland Cement, 101 F.3d at 777 (citation omit- ted).

American Portland Cement, 101 F.3d at 777 (citation omitted).

See, e.g., Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1418-19 (D.C.Cir.1998); American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996); Kennecott Utah Copper Corp. v. Dep't of Interior,, 88 F.3d 1191, 1207 (D.C.Cir.1996); National Solid Waste Mgmt.

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 779 (D.C.Cir.1996) (declining to apply Lorion when the jurisdictional statute was unambiguous).

See American Portland Cement Alliance v. EPA 101 F.3d 772, 775 (D.C.Cir.1996) (rejecting jurisdiction to review an agency “determination” where the provision at issue did not provide for such review, because “Congress clearly knows how to provide this court with jurisdiction over ‘determinations’ when it so intends”).

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996) (“An agency’s characterization of an administrative action, though not dispositive of reviewability, may provide guidance.”).

See American Portland Cement Alliance v. EPA 101 F.3d 772, 777 (D.C.Cir.1996); see also Florida P & L, 145 F.3d at 1418 (establishing three-factor test for identifying reviewable “final” regulations).

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C.Cir.1996).

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996); see also Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1207 (D.C.Cir.1996) (interpreting “regulation” under an analogous judicial review provision as “a statement that has general applicability and that has the legal effect of binding the agency or other parties”) (internal quotation marks and citations omitted).

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.Cir.1996).

See American Portland Cement Alliance v. EPA, 101 F.3d 772, 776 (D.C.

Critically here, we have held that “[a] decision by an agency to defer taking action is not a final action reviewable [under RCRA].” API I, 216 F.3d at 68 ; see also American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C.

Proposed rules meet neither of the two requirements for final agency action: (i) They are not the “consummation of the agency’s decisionmaking process,” and (ii) they do not determine “rights or obligations,” or impose “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177-78 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997) (internal quotation marks omitted); see also American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C.Cir.1996) (“a proposed regulation is still in f…