EPA is expected to urge a federal appeals court to dismiss an energy sector challenge to its memo narrowly applying a ruling vacating a key part of its "aggregation" policy for strict permitting of emissions from dispersed operations, arguing that the memo is not "final agency action" subject to judicial review. The U.S. Court of Appeals for the District of Columbia Circuit set an April 8 deadline for EPA to file a dispositive motion to dismiss the lawsuit over the policy memo, but the agency did not file such a motion. Instead, the case will now proceed to merits briefing in which EPA will seek quick rejection of the suit by reiterating its long-running claim that policy memos do not qualify as Administrative Procedure Act (APA) rulemakings subject to legal challenges.
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