MEMORANDUM Re: Procedural challenge to North Coast Environmental Directorate final emissions-reporting rule Meridian should file a timely petition for review, and it should frame the case as a challenge to the agency’s procedure and record—not to the wisdom of climate reporting. Several independent procedural defects likely invalidate the final rule. --- ## 1. Standing and filing deadline Meridian has standing under the governing rules. It is now a regulated entity under the final 25,000-ton threshold—it emits 62,000 tons directly—and it faces imminent compliance costs because it must sign a $2.4 million monitoring-system contract within 25 days to meet the first reporting date. That is a concrete, imminent injury caused by the rule and redressable by a stay, vacatur, or remand. The petition must be filed within 30 days after publication. The rule was published yesterday, so Meridian should file immediately. Because the contract deadline is 25 days after publication, Meridian should also move immediately for a stay or temporary relief; waiting until the petition deadline may be too late to prevent the contract obligation. --- ## 2. Adequacy of notice for the 25,000-ton threshold The proposed rule covered facilities emitting more than 100,000 tons. The final rule lowers that threshold to 25,000 tons. The only notice Meridian and others received was the proposal’s question whether the threshold should be “modestly adjusted.” That is not enough. A reduction from 100,000 tons to 25,000 tons is a 75% reduction and a major expansion of the regulated class. A facility like Meridian, emitting 62,000 tons, would not have been covered under the proposed rule and had no fair warning that it would become covered. The phrase “modest adjustment” does not reasonably suggest a cut to 25,000 tons. It would likely have notified commenters of a small change, not a transformation of the rule’s scope. The final statement’s assertion that the lower threshold was “foreseeable” is not controlling. The standard is whether affected persons reasonably should have anticipated the final approach. Here, the 25,000-ton number appears to have come from the post-comment supply-chain model, which was not available for comment. The agency therefore violated Rules 1, 2, and 3 as to the threshold. --- ## 3. Monthly reporting and Meridian’s prejudice Monthly reporting is the closest issue. The proposal asked whether quarterly reporting was “adequate,” which reasonably put reporting frequency in issue. A move from quarterly to monthly is a natural response to a conclusion that quarterly reporting is inadequate. Also, Meridian itself submitted a comment warning that monthly measurement would require new instrumentation, which shows that Meridian at least anticipated the possibility. So Meridian should probably not make lack of notice for monthly reporting its primary argument. A court could reasonably find that monthly reporting was a logical outgrowth of the proposal. Meridian also may have difficulty showing prejudice as to monthly reporting specifically, because it did present the substance of its instrumentation concern during the comment period. That does not save the rule. The agency failed to respond to Meridian’s significant instrumentation comment. That is a separate and serious procedural defect under Rule 5, discussed below. --- ## 4. Supplier and contractor reporting was not a logical outgrowth The proposal required facilities to report their own direct emissions. It did not mention contractors, suppliers, purchased materials, or upstream emissions. The final rule, however, requires covered facilities to calculate emissions from designated suppliers and onsite contractors. This is not a logical outgrowth. The regulated conduct changed—facilities must now collect and report third-party data. The data source changed—supplier and contractor emissions replaced or supplemented direct emissions. The compliance burden changed—facilities must obtain data from suppliers and contractors, and may need new contractual and monitoring arrangements. The proposal gave no notice of any of this. The agency’s reliance on the post-comment supply-chain model as the reason for supplier and contractor reporting only confirms the lack of notice. Rule 3 is directly on point: a final requirement is not a logical outgrowth when the proposal gave no notice of the regulated conduct, data source, or compliance burden that became central to the final rule. --- ## 5. The undisclosed post-comment model and the duty to reopen comment The Directorate commissioned a supply-chain model after the comment period closed. It was unpublished and was not placed in the public docket. The final rule cites that model as the reason for the contractor and supplier reporting requirements, and it appears to supply the basis for the 25,000-ton threshold. Under Rule 4, if an agency relies materially on a study, model, or dataset added after comment closes, it must reopen comment when the new material supplies the essential factual basis for a requirement that commenters could not meaningfully address. That is exactly this case: - the model was created after the comment period; - it was not disclosed; - it was central to the final rule; - commenters had no chance to challenge its assumptions, methodology, data, or conclusions; - it is cited in the final statement as the reason for a major new requirement. The agency was required to reopen the comment period and place the model in the record. It did not. That is an independent basis for remand or vacatur. --- ## 6. Inadequate response to Meridian’s significant comment Meridian submitted a comment supporting quarterly reporting and warning that monthly measurement would require new instrumentation. That comment seriously challenged the factual premise and compliance burden of monthly reporting. The final statement says only that monthly reporting is needed for data quality. It does not answer Meridian’s instrumentation point. Under Rule 5, the agency must give a concise statement of basis and purpose responding to significant comments. It need not answer every comment, but it must address comments that seriously challenge its factual premise or authority. Meridian’s instrumentation comment was exactly that kind of comment. The agency’s response is inadequate. It does not explain: - whether new instrumentation is required; - what that instrumentation costs; - whether quarterly data would be insufficient; - why the data-quality benefit justifies the new instrumentation burden; or - whether alternatives were considered. The court may not allow the agency to supply that explanation later as post hoc policy justification. --- ## 7. Good cause for immediate effectiveness The agency invoked good cause for immediate effectiveness based only on a statement that climate reporting is urgent. That is not sufficient. Under Rule 6, good cause to shorten or omit ordinary procedure requires specific contemporaneous reasons and applies when normal procedure is impracticable, unnecessary, or contrary to the public interest. Administrative delay or a general desire for speed is specifically insufficient. Here, the agency began drafting the rule eighteen months before publication. No new event justified immediate effectiveness. A generic assertion of urgency cannot satisfy good cause when the agency had ample time to follow normal procedure. The immediate effective date is therefore invalid. --- ## 8. Harmless-error arguments The agency may argue that any procedural errors were harmless because Meridian had access to the 60-day comment period and submitted comments. That argument fails. Under Rule 7, a procedural error is harmless only if the challenger had a meaningful opportunity to present the substance of the omitted comment and cannot show possible prejudice. Meridian can show possible prejudice: - As to the 25,000-ton threshold, Meridian had no notice it would be covered and therefore no meaningful opportunity to comment on the costs and feasibility of coverage. - As to supplier and contractor reporting, Meridian had no notice of the requirement or of the model on which it was based. It could not challenge the model’s data or assumptions. - As to monthly reporting, the agency did not respond to Meridian’s instrumentation comment, so the rule lacks a reasoned response in the record. - As to immediate effectiveness, Meridian is forced to sign the monitoring contract within 25 days, before the ordinary course of review can run. The agency’s argument that environmental benefits justify the final requirements is not a harmless-error defense. The court reviews the notice, comment record, final rule, stated basis, and materials actually relied on. It does not uphold the rule on post hoc policy explanations. The environmental merits cannot cure the lack of notice, comment, and reasoned response. --- ## 9. Relief: stay, vacatur, and remand Meridian should ask the court to: - stay the rule pending review, at least as to the effective date and the requirement to sign the monitoring contract; - vacate the final rule, or remand it to the agency, because the defects are procedural and central; - if the court remands rather than vacates, order the Directorate to reopen the comment period and place the supply-chain model in the public docket; and - require the agency to respond to significant comments and provide a genuine statement of basis and purpose. The governing law permits the court to stay, vacate, or remand, with or without temporary continuation when disruption would be serious. Meridian should oppose any temporary continuation that would require it to comply before the comment process is reopened. If disruption is a concern, the court may order a limited remand, but it should not force Meridian to sign the contract while the agency repeats the rulemaking lawfully. --- ## 10. Procedural challenge Meridian should file Meridian should file a single petition for review within the 30-day deadline, raising these procedural claims: 1. The final 25,000-ton threshold was not a logical outgrowth of the proposal, and Meridian had no fair notice that it would be regulated. 2. The supplier and contractor reporting requirements were not a logical outgrowth and were never exposed for comment. 3. The agency unlawfully relied on a post-comment model without reopening the comment period. 4. The final statement fails to respond to Meridian’s significant instrumentation comment. 5. The agency lacked good cause for immediate effectiveness. The petition should not argue that the rule is unwise or that climate reporting is not beneficial. Meridian’s position is procedural: whatever the environmental merits, the Directorate must comply with the required notice, comment, and record-keeping process before imposing these obligations.