Herringbone United States and the EPA was questioned Friday by a panel of DC circuit judges on whether the company can sue the agency for finding that an offshore oil rig being dismantled is still subject to regulations on the atmospheric pollution.

Chevron sued the agency after reversing a Trump-era finding that once a rig stops emitting air pollution, it is no longer a regulated outer continental shelf source. of the Clean Air Act. Chevron is responsible for decommissioning the Gail and Grace drilling rigs in federal waters off the coast of Ventura County, California.

Judge David S. Tatel asked Chevron to respond to the Environmental Protection Agency’s argument that the competent authority is Ventura County. The agency says the company’s challenge is premature because the county has not decided whether Chevron’s rigs need permits for dismantling.

Catherine Stetson of Hogan Lovells US LLP, representing Chevron, said the legal issue here is not whether the company qualifies for a permit. It’s about whether Chevron “needs to get a permit for this activity,” she said.

Ventura County has the authority to enforce and issue permits, according to Stetson, but it lacks the ability to interpret the law. The EPA argues that its April 2021 letter is not a “final agency action” subject to judicial review. But the agency’s letter wasn’t just a recommendation, Stetson said.

The agency gave a “definitive definition” of CAA where a platform that no longer broadcasts can be treated as a source, she said.

Judge Cornelia TL Pillard asked if Chevron should go to the county to terminate permits it already had. According to the January 2021 letter from the Trump administration, once Chevron reaches the decommissioning point when the rig no longer emits pollutants, it could surrender its CAA Title V permits and not go through additional permits, Stetson said.

According to Justice Department attorney Phillip R. Dupre, who represented the EPA, the substantive issue raised by Stetson is not properly before the court because it received no response from the EPA. agency or county. The agency believes more details are needed before making a factual decision, he said.

From Chevron’s perspective, the agency’s April letter was a “step change” from its January findings, Tatel told Dupre. The lawyer said it was unclear whether the January letter changed the company’s legal obligations.

The April letter “makes it clear that the EPA has not consummated its decision-making process,” he said.

Question about location

The agency also contends that Chevron filed its challenge in the wrong court. Rather, its claims belong to the Ninth Circuit because the EPA’s letters are not “nationally enforceable,” the agency says.

While parts of the EPA letters could have implications for issues that may arise elsewhere, there are also aspects that relate to the particular circumstances in question, according to Chief Justice Sri Srinivasan.

“It tends to shift, in my mind, the balance and pushes it towards the west coast,” he said.

It would be odd for the court to declare the EPA’s decision a final action by the agency and then direct the case to the Ninth Circuit, Srinivasan said. Tatel also said it would be odd for the court to decide whether it was an agency action first if he thinks the case belongs in the Ninth Circuit.

The court is “well qualified to simply consider the issue of venue,” Dupre said.

Stetson said the agency’s decision is applicable nationwide. The agency’s January letter said Chevron did not need to apply for a permit once it reached a point where its platform was no longer broadcasting. It’s “nationally applicable to any platform that reaches that point,” she said.

The case is Chevron USA v. EPA, DC Cir., No. 21-01140, 4/8/22.

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