of an agency’s action, inquiring whether the agency has “(1) impose[d] any rights and obligations, or (2) genuinely [left] the agency and its decisionmakers free to exercise discretion.” CropLife Am. v. EPA, 329 F.3d 876, 883 (D.C.Cir.2003) (citation and internal quotation marks omitted). The language used by an agency is an important consideration in such determinations. See Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C.Cir.1987 F.2d 33, 38, 48 (D.C.Cir.1974) (noting that a policy statement that “does not establish a binding norm,” and “is not finally determinative of the issues or rights to which it is addressed,” is not subject to review) (citation and internal quotation marks omitted), with Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 47-49 (D.C.Cir.2000) (<HOLDING>). Nevertheless, the distinction between
holding that certain dual purpose documents created in response to the epa information request and consent order were protected from discovery by the work product doctrine as they were created because of potential litigation with the epa holding that epa regions policy statement does not constitute final agency action because it does not compel action holding inter alia that an epa guidance which created new reporting requirements for regulated entities as a directive with legal consequences amounted to final agency action holding that epa action initiating permitting proceedings was not final agency action holding inter alia that common law claims were preempted