## Short conclusion Meridian should file a **petition for procedural review immediately**, well within the 30-day deadline and before the 25-day monitoring-contract deadline. The challenge should not argue that the rule is too costly, unwise, or environmentally unbeneficial. It should argue only that the Directorate violated required notice-and-comment procedure and the rules governing post-comment reliance, explanation, good cause, and harmless error. The strongest claims are: 1. **The 25,000-ton threshold was not adequately noticed and is not a logical outgrowth** of a proposal that described a 100,000-ton threshold and invited only a “modest” adjustment. 2. **Supplier and contractor reporting was not a logical outgrowth** of a proposal limited to facilities’ own direct emissions. 3. The Directorate **relied materially on an unpublished post-comment model** without reopening comment, even though that model supplied the essential factual basis for the supplier/contractor requirements and supported the lowered threshold. 4. The final statement **failed to respond to Meridian’s significant comment** about monthly measurement and new instrumentation. 5. The asserted **good cause for immediate effectiveness is unsupported**. 6. The defects are **not harmless** because Meridian faced imminent and substantial compliance costs and, for the central new requirements, lacked a meaningful opportunity to comment. Recommended relief: **expedited stay**, **vacatur**, or **remand** with no continuation of the unnotified requirements, or at least a stay as to Meridian and a stay of the first reporting date while the agency cures the procedural defects. --- # 1. Adequacy of notice for the 25,000-ton threshold The proposal covered facilities emitting **more than 100,000 tons** of direct carbon-equivalent emissions per year and required **quarterly** reports of those facilities’ **own direct emissions**. The notice asked whether the threshold should be “modestly adjusted.” It did not propose a 25,000-ton threshold, did not discuss facilities emitting between 25,000 and 100,000 tons, and did not mention supply-chain or upstream emissions. Under North Coast Rule 1, a legislative rule requires published notice of the proposed text or substance, the legal authority, and the subjects and issues under consideration. Under Rule 2, a final rule may differ from the proposal only if it is a **logical outgrowth**: affected persons must reasonably have anticipated the final approach and had a fair opportunity to comment. Under Rule 3, 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. The final 25,000-ton threshold is not reasonably defensible as a “modest” adjustment from 100,000 tons. It lowers the threshold by 75 percent and dramatically expands the class of covered facilities. A facility emitting 62,000 tons, such as Meridian, would not have been covered under the proposal but becomes covered under the final rule. That is a central change in the compliance burden: it determines who must report, what data must be collected, and what monitoring systems must be installed. The Directorate’s final statement says the lower threshold was foreseeable because the proposal asked whether the threshold should be “modestly adjusted.” That explanation is insufficient. The proposal’s own limiting word, “modest,” undermines the claim that commenters could reasonably anticipate a reduction to one-quarter of the proposed threshold. The court looks to the actual notice, not to after-the-fact characterizations of what was foreseeable. Under Rule 9, the court does not uphold a rule on post hoc policy explanations. The problem is compounded by the fact that the Directorate’s stated reason for the lower threshold comes from a **post-comment supply-chain model** that was not public and was not available during the comment period. The model concluded that facilities above 25,000 tons often cause much larger upstream emissions. That model was not part of the notice, not in the public docket, and not available for comment. The proposal therefore did not put commenters on notice of the factual premise that would justify a 25,000-ton threshold. **Conclusion:** The 25,000-ton threshold was not adequately noticed and is not a logical outgrowth of the proposal. The requirement should be vacated or remanded for proper notice and comment. --- # 2. Whether monthly reporting was a logical outgrowth and whether Meridian was prejudiced The proposal required **quarterly** reporting and asked whether quarterly reporting was adequate. Unlike the supplier/contractor requirements, the proposal at least raised the issue of reporting frequency. A request whether quarterly reporting is “adequate” can reasonably invite comment on whether more frequent reporting is needed. On that narrow point, a monthly reporting requirement is more defensible as a logical outgrowth than the supplier/contractor requirements. So the monthly requirement may survive a pure logical-outgrowth challenge in isolation. A commenter could reasonably have understood that the agency was considering whether quarterly reporting was sufficient and could have commented in favor of or against more frequent reporting. Meridian did exactly that. It commented supporting quarterly reporting and warned that **monthly measurement would require new instrumentation**. That comment shows that Meridian had a meaningful opportunity to address the monthly-reporting issue and did so. But Meridian may still show **possible prejudice**, and the procedural error is not necessarily harmless. The final rule adopted monthly reporting on the stated ground of “data quality,” but it did not respond to Meridian’s specific warning that monthly reporting would require new instrumentation. That is a serious factual and practical challenge to the final rule’s data-quality rationale. Meridian’s comment was not a trivial cost point; it went to the feasibility and burden of the monthly regime. The final statement’s bare assertion that monthly reporting is needed for data quality does not address that comment. In addition, the monthly requirement was made immediately effective and tied to a first reporting date that forces Meridian to sign a $2.4 million monitoring-system contract within 25 days. That creates imminent, substantial prejudice even if the monthly frequency issue was reasonably foreshadowed. **Conclusion:** Monthly reporting was likely a logical outgrowth of the proposal’s question about quarterly adequacy, and Meridian had an opportunity to comment on it. But Meridian can still show possible prejudice because the agency failed to respond to its significant instrumentation comment and imposed the requirement immediately. The monthly provision is therefore vulnerable on explanation and effective-date grounds, even if it is less vulnerable on pure notice grounds. --- # 3. Whether supplier and contractor reporting was a logical outgrowth This is the clearest procedural defect. The proposal required facilities to report **their own direct emissions**. It did not mention: - suppliers, - contractors, - purchased materials, - upstream or supply-chain emissions, - third-party data collection, - designated supplier reporting, - onsite contractor emissions calculations, - or any requirement to account for emissions outside the facility’s own direct operations. The final rule, by contrast, requires covered facilities to **calculate emissions from designated suppliers and onsite contractors**. That is not a minor variation. It is a new regulated conduct, a new data source, and a new compliance burden. Under Rule 3, 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. Here, all three are new: 1. **Regulated conduct:** Facilities must now do more than report their own direct emissions; they must perform supply-chain and contractor emissions calculations. 2. **Data source:** The rule now depends on supplier and contractor data that the proposal never mentioned. 3. **Compliance burden:** Facilities must obtain, verify, and calculate third-party emissions data, a burden not fairly foreshadowed by a proposal limited to own-direct quarterly reporting. Commenters had no fair opportunity to challenge the supplier/contractor requirement because the proposal never placed that requirement in issue. The final statement’s citation to the post-comment supply-chain model does not cure the lack of notice. A post-comment model cannot retroactively transform an unnotified requirement into a logical outgrowth. **Conclusion:** Supplier and contractor reporting was not a logical outgrowth of the proposal. It required a new round of notice and comment. --- # 4. Effect of the undisclosed post-comment model and whether comment had to reopen After the 60-day comment period closed, the Directorate commissioned an unpublished model of supply-chain emissions. The model concluded that facilities with direct emissions above 25,000 tons often cause much larger upstream emissions through purchased materials and contractors. The model was not placed in the public docket. The final rule then: - lowered the threshold to 25,000 tons; - required monthly reporting; - required supplier and contractor emissions calculations; - cited the post-comment supply-chain model as the reason for contractor and supplier reporting. This triggers 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. The model was materially relied on. The final statement expressly cites it as the reason for supplier and contractor reporting. It also supports the 25,000-ton threshold by supplying the factual premise that lower direct-emitters have significant upstream impacts. The model was not available to the public. It was not in the docket. Commenters could not examine it, test its assumptions, challenge its methodology, or propose alternatives. It supplied the essential factual basis for requirements that commenters could not meaningfully address. Therefore, the Directorate was required to reopen comment before adopting the supplier/contractor requirements and, at minimum, before relying on the model to justify the 25,000-ton threshold. The agency did not do so. Under Rule 9, 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 fact that the model may have been scientifically or policy useful is not a defense to the procedural defect. The model was added after comment closed, was undisclosed, and was not open to meaningful public challenge. **Conclusion:** The undisclosed post-comment model fatally undermines the supplier/contractor requirements and the 25,000-ton threshold. Comment had to be reopened before the agency could rely on the model as the essential factual basis for those requirements. --- # 5. Adequacy of the response to Meridian’s significant comment Meridian submitted a comment supporting quarterly reporting and warning that monthly measurement would require new instrumentation. The final rule adopted monthly reporting and stated that monthly reporting was needed for data quality. It did not answer Meridian’s instrumentation warning. Rule 5 requires a concise statement of basis and purpose responding to significant comments. The agency need not answer every point, but it must address comments that seriously challenge its factual premise or statutory authority. Meridian’s comment is significant. It came from a facility that the final rule now covers. It directly challenged the practical feasibility of the monthly regime by identifying a concrete operational burden: the need for new instrumentation. The final rule’s data-quality rationale is directly implicated by that comment. If monthly reporting requires new instrumentation, the agency must explain how the data-quality benefit justifies that burden, whether alternatives were considered, and why quarterly reporting is inadequate despite the measurement burden. The final statement does none of that. It offers a bare data-quality justification without responding to the specific, serious comment. **Conclusion:** The response to Meridian’s significant comment was inadequate. The final rule must be remanded for a response that addresses the instrumentation and feasibility concern, or the monthly requirement should be stayed or vacated. --- # 6. Asserted good cause for immediate effectiveness The Directorate invoked good cause for immediate effectiveness, stating that “climate reporting is urgent.” It did not identify any event that made ordinary delayed effectiveness impracticable. The facts state that the agency began drafting the rule 18 months before publication. Rule 6 permits omission of notice or a shortened period only when ordinary procedure is impracticable, unnecessary, or contrary to the public interest, and only when the agency states **specific contemporaneous reasons**. Administrative delay or a general desire for speed is insufficient. A general assertion of urgency is not enough. Climate reporting may be important, but importance is not the same as an emergency that makes delayed effectiveness impracticable. The agency had 18 months of drafting time and did not identify a contemporaneous event, crisis, or imminent threat that made immediate effectiveness necessary. There is no explanation of why a reasonable transition period would be impracticable, unnecessary, or contrary to the public interest. The immediate effective date also magnifies prejudice. Meridian must sign a $2.4 million monitoring-system contract within 25 days to meet the first reporting date. That is a concrete, imminent burden caused in part by the absence of a valid transition period. **Conclusion:** The asserted good cause for immediate effectiveness is procedurally invalid. The agency failed to state specific contemporaneous reasons and did not show that delayed effectiveness was impracticable, unnecessary, or contrary to the public interest. --- # 7. Harmless-error arguments Rule 7 provides that a procedural error is harmless only when the challenger had a meaningful opportunity to present the substance of the omitted comment and cannot show possible prejudice. Meridian has several strong harmless-error arguments. ### A. Supplier and contractor reporting Meridian did not have a meaningful opportunity to comment on supplier and contractor reporting because the proposal never mentioned suppliers, contractors, purchased materials, or upstream emissions. The final rule’s central new requirements therefore were not fairly opened for comment. Meridian can also show possible prejudice. The final rule now requires it to calculate emissions from suppliers and contractors and to make a $2.4 million monitoring commitment within 25 days. That is possible, and potentially substantial, prejudice. **Not harmless.** ### B. 25,000-ton threshold The proposal invited only a “modest” threshold adjustment. A reduction from 100,000 tons to 25,000 tons is not reasonably anticipated under that notice. Meridian did not have a meaningful opportunity to comment on the specific central change that brought it within coverage. It can also show possible prejudice through the new coverage, monitoring costs, and immediate compliance deadline. **Not harmless.** ### C. Undisclosed post-comment model The model was not public, was not in the docket, and was not available for comment. Commenters could not meaningfully address its assumptions, methodology, or conclusions. The final rule relies on it materially. That is a serious procedural defect, and Meridian can show possible prejudice because the model supported the new supplier/contractor requirements and the lowered threshold. **Not harmless.** ### D. Monthly reporting For monthly reporting, Meridian had a meaningful opportunity to comment and did so. That weakens a pure notice-based harmless-error claim as to monthly frequency. But Meridian can still show possible prejudice because the agency failed to respond to its significant instrumentation comment and imposed the requirement immediately. The failure to consider a serious comment creates possible prejudice, particularly when the final rule forces an immediate $2.4 million commitment. **Likely not harmless in the overall record**, even if monthly frequency was reasonably foreshadowed. ### E. Immediate effectiveness Meridian can show possible prejudice from the immediate effective date because it must sign a $2.4 million contract within 25 days. The lack of a valid transition period directly caused that pressure. **Not harmless.** **Overall conclusion:** The procedural defects are not harmless. Meridian had meaningful opportunity as to monthly frequency, but it did not have meaningful opportunity as to the central new requirements, and it can show possible prejudice across the rule as a whole. --- # 8. Standing, filing deadline, stay, vacatur, and remand options ## Standing Rule 8 provides that a regulated entity suffering imminent compliance costs has standing. Meridian is a regulated entity under the final rule. It faces an imminent compliance cost: 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 sufficient for standing. ## Filing deadline The rule was published yesterday. Rule 8 requires a petition to be filed within **30 days after publication**. Meridian should file immediately. The 25-day contract deadline is earlier than the 30-day review deadline. If Meridian waits until the end of the 30-day period, it may be forced to sign the monitoring contract before the court can act. The petition should include a request for expedited stay relief. ## Stay Meridian should seek a stay of the rule, or at least a stay of: - the immediate effective date; - the first reporting date; - the supplier and contractor reporting requirements; - the 25,000-ton threshold; and/or - the rule as applied to Meridian. The strongest basis for a stay is the combination of: - likely procedural invalidity; - imminent $2.4 million contract commitment; - 25-day deadline; - lack of a valid good-cause justification for immediate effectiveness; - and the absence of a proper opportunity to comment on the central new requirements. A stay would preserve the status quo while the court reviews the procedural defects or while the agency remands and cures them. ## Vacatur The court may vacate the rule, in whole or in part. The strongest basis for vacatur is the supplier/contractor requirement, because it was not a logical outgrowth and was based on an undisclosed post-comment model. The 25,000-ton threshold is also a strong vacatur candidate because it was not fairly noticed and was supported by the same undisclosed model. The immediate effective date should also be vacated as an unsupported good-cause measure. If the court views the rule as an integrated package, it may vacate the entire final rule. If it views the provisions as severable, it may at least vacate: 1. supplier and contractor reporting; 2. the 25,000-ton threshold; 3. the immediate effective date; and 4. any requirement supported only by the undisclosed model. ## Remand The court may remand the rule to the Directorate. A remand is appropriate because the agency must: - make the supply-chain model publicly available; - reopen comment on supplier and contractor reporting; - provide adequate notice of the 25,000-ton threshold; - respond to significant comments, including Meridian’s instrumentation comment; - provide a valid basis for any immediate or shortened effective date; - and explain the final rule in accordance with Rule 5. If the court remands, Meridian should argue that the court should not allow continuation of the unnotified requirements during remand. If the court finds serious public disruption from vacatur, Rule 8 allows temporary continuation, but Meridian should argue that continuation is unwarranted, or at least should be limited, because the agency’s procedural failures deprived the rule of a valid foundation. ## Temporary continuation The court may vacate or remand with or without temporary continuation when disruption would be serious. Meridian should resist continuation of the new supplier/contractor, threshold, or monthly instrumentation requirements. If the court is concerned about environmental disruption, the better procedural solution is to stay the rule while the agency reopens comment, rather than force facilities to comply with requirements that were never properly noticed or opened for comment. At minimum, Meridian should request: - no continuation of the supplier/contractor requirements; - no continuation of the 25,000-ton threshold; - no immediate first reporting date; - and a stay as to Meridian while the agency cures the record. --- # 9. The procedural challenge Meridian should file Meridian should file a **petition for procedural review** within 30 days of publication, with a request for **expedited stay**. The petition should be framed strictly around procedure and the administrative record, not around whether the rule is wise, too costly, or environmentally beneficial. The petition should state, in substance: > Meridian petitions for review of the Directorate’s final emissions-reporting rule. Meridian does not challenge the rule on environmental or policy merits. It challenges the rule because the Directorate failed to comply with required notice-and-comment procedure and the rules governing reliance, explanation, good cause, and harmless error. > > First, the proposal did not provide adequate notice of, and the final rule is not a logical outgrowth of, the 25,000-ton threshold. The proposal described a 100,000-ton threshold and invited only a “modest” adjustment. A reduction to 25,000 tons was not reasonably anticipated and materially expanded the class of covered facilities. > > Second, the supplier and contractor reporting requirements were not logical outgrowths of the proposal. The proposal required only reporting of facilities’ own direct emissions and did not mention suppliers, contractors, purchased materials, or upstream emissions. The final rule added a new regulated conduct, new data source, and new compliance burden without notice or fair opportunity to comment. > > Third, the Directorate materially relied on an unpublished supply-chain model added after the comment period closed. The model was not placed in the public docket and was not available for comment. It supplied the essential factual basis for the supplier and contractor requirements and supported the 25,000-ton threshold. The Directorate was required to reopen comment before relying on that model. > > Fourth, the final statement failed to respond to Meridian’s significant comment warning that monthly measurement would require new instrumentation. The rule adopted monthly reporting on a data-quality rationale but did not address the serious practical challenge raised in the comment record. > > Fifth, the Directorate’s good-cause justification for immediate effectiveness is invalid. It offered only a general statement of urgency, without specific contemporaneous reasons showing that delayed effectiveness was impracticable, unnecessary, or contrary to the public interest. The agency’s 18 months of prior drafting further undermines the claim of emergency. > > Sixth, the procedural defects are not harmless. Meridian lacked a meaningful opportunity to comment on the central new requirements and faces possible prejudice because it must sign a $2.4 million monitoring-system contract within 25 days to meet the first reporting date. > > Meridian therefore requests expedited review, a stay of the rule and its first reporting date, and vacatur or remand for proper notice, comment, public disclosure of the model, adequate explanation, and a valid effective date. That is the correct procedural posture: challenge the procedure, not the policy; seek immediate relief before the contract deadline; and ask the court to force the agency to cure the record rather than allow the rule to stand on undisclosed post-comment materials and unresponded comments.