Clean Water Action Council of NE WI, Inc. v. Envtl. Prot. Agency, No. 12-3388 (7th Cir. 2014)

Annotate this Case

The Clean Air Act, 42 U.S.C. 7401, allows each state to craft a state implementation plan to control the levels of certain air pollutants. Most state plans include “Prevention of Significant Deterioration” (PSD) programs, to prevent backsliding in “attainment areas” that meet or exceed the Act’s air quality standards, while allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region’s aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and a cap on pollutants above that baseline. The Act grandfathers sources operational before 1975: the baseline incorporates their emissions, with post-1975 sources counting against the allowance. Title V of the Act requires each covered stationary source to have an operating permit. In 2002 Georgia-Pacific asked Wisconsin to renew the Title V permit for its pre-1975 paper mill. Meanwhile, Georgia-Pacific modified a paper machine at the plant. The application was unopposed and the modification permit issued in February 2004. In 2011 Wisconsin reissued the plant’s operating permit. Objectors claim that modifications to any part of a plant require all emissions from the plant, including pre-1975 emissions incorporated into the baseline, to count against the state’s allowance, so that the whole plant might need to close for lack of available allowance. The U.S. EPA declined to object, concluding that Wisconsin’s approach is consonant with its understanding of the statute. The Seventh Circuit denied a petition for review. EPA presented a reasonable interpretation of an ambiguous statutory provision.

Download PDF

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 12- 3388 CLEAN WATER ACTION COUNCIL WISCONSIN, INC., et al., OF NORTHEASTERN Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. ____________________ Petition for Review of an Order of the Environmental Protection Agency ____________________ ARGUED SEPTEMBER 23, 2013 DECIDED AUGUST 29, 2014 ____________________ Before EASTERBROOK, SYKES, and TINDER, Circuit Judges. EASTERBROOK, Circuit Judge. The Clean Air Act, 42 U.S.C. §§ 7401 7671q, invites each state to craft a plan (a state im- plementation plan ) to control the levels of certain air pollu- tants. Most state plans include Prevention of Significant De- terioration (PSD) programs. These programs are designed to prevent backsliding in attainment areas (regions that meet or exceed the Act s air quality standards), while still 2 No. 12- 3388 allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region s aggregate emissions over specified limits. The Act establish- es these limits by setting a baseline and then a cap on pollu- tants above that baseline. The space between the baseline and the cap is the increment . In the jargon of the regula- tions, new sources that create a net increase in emissions consume increment . To simplify matters, we refer to the increment as the state s pollutant allowance. The Act grand- fathers sources operational before 1975: the baseline incorpo- rates their emissions, with post- 1975 sources counting against the allowance. See 42 U.S.C. §7479(4). Title V of the Act, 42 U.S.C. §§ 7661 7661f, requires each covered stationary source to have an operating permit. Per- mits implementing Title V specify pollution- control obliga- tions for each source. The statute allows states to administer certain aspects of the air- pollution- control regime including Title V permits subject to federal review. In 2002 Georgia- Pacific asked Wisconsin to renew the Ti- tle V permit for its pre- 1975 paper mill. While Wisconsin weighed that application, Georgia- Pacific modified a paper machine at the plant. The application for a permit authoriz- ing this modification was unopposed, and the permit issued in February 2004. In 2011 Wisconsin reissued the whole plant s operating permit. Clean Water Action Council asked EPA to reject the state s decision, arguing that Wisconsin s regulations (and their application to Georgia- Pacific) incor- rectly implemented the Act. The Council believes that modi- fications to any part of a plant, such as the one Georgia- Pacific made in 2004, require all emissions from the plant including pre- 1975 emissions incorporated into the base- No. 12- 3388 3 line to count against the state s allowance. If that s so, the whole plant might need to close for lack of available allow- ance. But EPA declined to object, see In re Georgia Pacific Consumer Products LP Plant, 2012 EPA CAA Title V LEXIS 7 (July 23, 2012), concluding that Wisconsin s approach is con- sonant with the agency s understanding of the statute: Modi- fications to pre- 1975 sources do not mean that the whole plant s emissions count against the state s allowance. Only increases caused by the modifications count, the EPA con- cluded. After the agency published that order, the Council sought review under 42 U.S.C. §7607(b). Jurisdiction comes first. EPA argues that the Council nec- essarily challenges the regulations (75 Fed. Reg. 64,864 (Oct. 20, 2010)) that say which permits may be renewed. Section 7607(b) requires that challenges to nationally applicable regulations be brought before the D.C. Circuit, while chal- lenges to actions that are locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit . The statute also requires that both kinds of challenge begin within 60 days of a regulation s publication. EPA contends that this court lacks jurisdiction because the Council brought the challenge belatedly and in the wrong circuit. Opinions from the Tenth and D.C. Circuits support the agency s stance. See Utah v. EPA, 750 F.3d 1182, 1184 (10th Cir. 2014); Oklahoma Department of Environmental Quality v. EPA, 740 F.3d 185, 191 (D.C. Cir. 2014); Medical Waste Institute v. EPA, 645 F.3d 420, 427 (D.C. Cir. 2011); Mo- tor & Equipment Manufacturers Association v. EPA, 142 F.3d 449, 460 (D.C. Cir. 1998); Edison Electric Institute v. EPA, 996 F.2d 326, 331 (D.C. Cir. 1993); Natural Resources Defense Council v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981). 4 No. 12- 3388 We conclude, to the contrary, that the venue and filing provisions of §7607(b) are not jurisdictional. The EPA disre- gards the Supreme Court s many opinions discussing the difference between jurisdictional and claim- processing rules. See, e.g., Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817, 824 26 (2013); Henderson v. Shinseki, 131 S. Ct. 1197, 1202 06 (2011); Reed- Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 66 (2010). See also Webster v. Caraway, No. 14- 1049 (7th Cir. Aug. 1, 2014), slip op. 7 11. Venue rules have long been understood as non- jurisdictional. See Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979). The Supreme Court also has held that most filing deadlines are statutes of limita- tions or claim- processing rules. See Auburn, 133 S. Ct. at 824 25 (listing cases); Henderson, 131 S. Ct. at 1203 ( Filing dead- lines, such as the 120- day filing deadline at issue here, are quintessential claim- processing rules. ); Arbaugh v. Y & H Corp., 546 U.S. 500, 510 16 (2006); Eberhart v. United States, 546 U.S. 12 (2005); Kontrick v. Ryan, 540 U.S. 443, 452 56 (2004). While there is an exception when it comes to appeals from district courts, see Bowles v. Russell, 551 U.S. 205, 212 13 (2007) (interpreting 28 U.S.C. §2107), the Court has rejected arguments that other filing deadlines are jurisdictional. Hen- derson, 131 S. Ct. at 1203. Instead, [t]he Court s recent cases require a clear statement or clear indication from Con- gress before a statute prescribing a precondition to bringing suit will be construed as jurisdictional. Miller v. FDIC, 738 F.3d 836, 844 (7th Cir. 2013). Neither EPA nor Georgia- Pacific points to such a state- ment; we couldn t find one. The circuit- level decisions we have cited do not do so either. Utah v. EPA does not give a reason; it cites Oklahoma Department of Environmental Quality as authoritative. Oklahoma Department of Environmental Quali- No. 12- 3388 5 ty does not give a reason; it cites Medical Waste Institute as authoritative. Medical Waste Institute does not give a reason; it cites Motor & Equipment Manufacturers Association as au- thoritative. And so the chain of citations goes, until we reach Natural Resources Defense Council which does give a reason (in addition to citing five more decisions, dating to 1974). When addressing the Hobbs Act, 28 U.S.C. §2344, the court tells us that a time limit [for initiating a contest to a regulation], like other simi- lar limitations, serves the important purpose of imparting finali- ty into the administrative process, thereby conserving adminis- trative resources and protecting the reliance interests of regu- latees who conform their conduct to the regulations. These poli- cies would be frustrated if untimely procedural challenges could be revived by simply filing a petition for rulemaking requesting rescission of the regulations and then seeking direct review of the petition s denial. 666 F.2d at 602 (footnote omitted). This is exactly the sort of thing that the Supreme Court has held does not mark a rule as jurisdictional. NRDC tells us why the Hobbs Act and simi- lar laws, such as §7607(b), contain time limits, not why filing deadlines are jurisdictional. The law is full of time limits, which serve valuable functions, but they are enforced when their beneficiaries bring them to the court s attention and stand on their rights; there is no need to declare them juris- dictional, which means that they must be considered ahead of all other issues, even if all litigants forfeit, or even waive, their benefits. Any contention along the lines of time limits are beneficial, so they must be jurisdictional did not survive Kontrick and its successors, such as Henderson and Auburn. Congress could have framed the filing and venue rules in jurisdictional terms, but it did not. Section 7607(b) does not 6 No. 12- 3388 mention jurisdiction. Auburn, 133 S. Ct. at 824 25; Henderson, 131 S. Ct. at 1204 05; Miller, 738 F.3d at 844 45; Webster, slip op. 7 8. Nor does §7607(b) use language that is traditionally understood as jurisdictional. And the Supreme Court has not indicated that the §7607 filing deadline is jurisdictional. That the Council did not bring its claim within 60 days of the reg- ulation s publication (or in the D.C. Circuit) therefore does not affect this court s jurisdiction. Because our decision creates a conflict among the circuits on the question whether the timing and venue rules in §7607(b) are jurisdictional, it has been circulated to all judges in regular active service. See Circuit Rule 40(e). None re- quested a hearing en banc. The 60- day limit remains a binding rule, however, as does the venue requirement and EPA has invoked the ben- efit of each. But although jurisdiction must be resolved ahead of other issues, see Steel Co. v. Citizens for a Better Envi- ronment, 523 U.S. 83 (1998), there is no necessary priority among non- jurisdictional issues. The EPA s contention that this challenge to a permit (and to one state s regulation) is really or necessarily a contest to a nationally applicable federal regulation would take the court into difficult ground. Cf. Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007). And for no good reason; the meaning of the statute is more important than what the Council s argument implies about some regulation. Because the EPA s decision can be sustained without deciding whether the Council s conten- tions necessarily undercut a federal regulation, we start (and end) with a discussion of the statute. No. 12- 3388 7 The language that matters is in 42 U.S.C. §7479(4): [1] The term baseline concentration means, with respect to a pollutant, the ambient concentration levels which exist at the time of the first application for a permit in an area subject to this part ¦ . [2] Such ambient concentration levels shall take into ac- count all projected emissions in, or which may affect, such area from any major emitting facility on which construction com- menced prior to January 6, 1975, but which has not begun opera- tion by the date of the baseline air quality concentration deter- mination. [3] Emissions of sulfur oxides and particulate matter from any major emitting facility on which construction com- menced after January 6, 1975, shall not be included in the base- line and shall be counted against the maximum allowable in- creases in pollutant concentrations established under this part. We have added the numbers in brackets to facilitate parsing the statute. The Council argues that §7479(4) is clear. According to it, the third sentence means that the 2004 modifications require reallocating the entire plant s emissions toward Wisconsin s pollutant allowance. Section 7479(2)(C) tells us that con- struction includes modifications, and the Council sees in sentence 3 a rule that to modify one machine is to modify the whole plant. If the plant has been modified, it is a new source that can operate only if enough new allowance is available. EPA, on the other hand, reads sentences 2 and 3 together to mean that the pre- 1975 emissions remain as part of the baseline, while any new emissions attributable to the 2004 modifications are counted toward the pollutant allow- ance. The statute does not explicitly address the treatment of emissions from a plant, only one part of which has been modified (and thus is treated as a new source). EPA con- cludes that the statute is ambiguous and the doctrine an- nounced in Chevron calls for courts to respect the agency s 8 No. 12- 3388 interpretation. See Chevron USA Inc. v. Natural Resources De- fense Council, Inc., 467 U.S. 837 (1984). The Council concedes that, if the EPA is right on the law, or if Chevron applies, then Georgia- Pacific is entitled to its permit. The statute is not as clear as the Council believes it to be. Two things are plain: (1) Emissions from pre- 1975 sources, up to the 1975 level, count as part of the baseline and not toward the overall emissions allowances (sentences 1 and 2); (2) Emissions from post- 1975 modifications to pre- 1975 sources (in this case, the modified paper machine) count against a state s pollutant allowance (sentence 3). But the statute does not tell us what happens to the pre- 1975 plant and its other machines, or whether a modification changes the relation between the baseline and the new allowance. Sentence 3 could be read to mean that modifications to pre- 1975 sources require counting emissions previously included in the baseline against the state s allowance. But this is an interpretation, not the only interpretation. It is no less rea- sonable to read sentence 3 as counting only the marginal emissions from modifications to pre- 1975 sources. Pre- 1975 emissions remain in the baseline while emissions from post- 1975 construction count toward a state s pollutant allow- ance. This is the interpretation that EPA has adopted. See 43 Fed. Reg. 26,388 at 26,400 01 (June 19, 1978); 75 Fed. Reg. 64,864 at 64,869 (Oct. 20, 2010). And an agency s reasonable interpretation of ambiguous statutory language carries the day. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1603 (2014). EPA s is a sensible interpretation as well. The Council s approach could produce two undesirable outcomes. Under one understanding of the Council s view, the 1975 baseline No. 12- 3388 9 would keep changing as old plants become new. Every time a company modified a pre- 1975 plant, all of the emis- sions that formerly were part of the baseline would now have to be counted against a state s allowance. This would cause no end of trouble during the permitting process for all plants (and not only the pre- 1975 plant with modifications), because the region s baseline would be changing. Unless what was removed from the baseline were added to the al- lowance, other businesses could find themselves with no al- lowance to draw on. The other understanding of the Coun- cil s view involves double counting a new source s emis- sions. Rather than moving all the pre- 1975 emissions from the baseline, a modification could cause the pre- 1975 emis- sion to count against the state s allowance and remain in the baseline. While this sounds strange, it is consistent with the Council s position. Under either interpretation companies (and state regulators) would be inclined to reject physical or operational changes to pollution sources, even if those changes reduced pollution, lest all pre- 1975 emissions count against the state s allowance. The EPA s approach avoids that result. EPA presents a reasonable interpretation of an ambigu- ous statutory provision. The petition for review is DENIED.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.