On April 4, EPA moved to dismiss the challenge to EPA's waiver denial that California filed in the D.C. Circuit. As Warming Law readers know, California's challenge to the denial is moving forward in the Ninth Circuit, and the briefing schedule is described in last Friday's post. But because EPA argues that the 9th Circuit has no jurisdiction over the matter, California filed a "protective" petition for review in the D.C. Circuit out of an abundance of caution. EPA now argues that the D.C. Circuit lacks subject matter jurisdiction because the protective filing seeks review of EPA's December 19 decision to deny the waiver, which EPA now asserts was not a real decision and not "final agency action" subject to judicial review, but instead mere "correspondence" that informed the Governor as a matter of courtesy of an intent to deny California's waiver request. Expect California to show in response that the December 19 EPA action was not simply an announcement of some future action, but rather a firm, final decision that speaks in the present tense, makes clear that as of Dec. 19 EPA had denied the waiver, and thus is final agency action subject to judicial review.