United States v. EME Homer City Generation, L.P

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 11-4406
_____________
UNITED STATES OF AMERICA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION;
STATE OF NEW YORK;
STATE OF NEW JERSEY,
(Intervenors in District Court)
v.
EME HOMER CITY GENERATION, L.P.;
HOMER CITY OL1, LLC;
HOMER CITY OL2, LLC; HOMER CITY OL3, LLC;
HOMER CITY OL4, LLC;
HOMER CITY OL5, LLC; HOMER CITY OL6, LLC;
HOMER CITY OL7, LLC;
HOMER CITY OL8, LLC; NEW YORK STATE
ELECTRIC AND GAS CORPORATION;
PENNSYLVANIA ELECTRIC COMPANY
United States of America,
Appellant
_____________
Nos. 11-4407
_____________
UNITED STATES OF AMERICA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION;
STATE OF NEW YORK;
STATE OF NEW JERSEY,
(Intervenors in District Court)
v.
EME HOMER CITY GENERATION, L.P.;
HOMER CITY OL1, LLC;
HOMER CITY OL2, LLC; HOMER CITY OL3, LLC;
HOMER CITY OL4, LLC;
HOMER CITY OL5, LLC; HOMER CITY OL6, LLC;
HOMER CITY OL7, LLC;
HOMER CITY OL8, LLC; NEW YORK STATE
ELECTRIC AND GAS CORPORATION
2
State of New York,
Appellant
_____________
Nos. 11-4408
_____________
UNITED STATES OF AMERICA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION;
STATE OF NEW YORK;
STATE OF NEW JERSEY,
(Intervenors in District Court)
v.
EME HOMER CITY GENERATION, L.P.;
HOMER CITY OL1, LLC;
HOMER CITY OL2, LLC; HOMER CITY OL3, LLC;
HOMER CITY OL4, LLC;
HOMER CITY OL5, LLC; HOMER CITY OL6, LLC;
HOMER CITY OL7, LLC;
HOMER CITY OL8, LLC; NEW YORK STATE
ELECTRIC AND GAS CORPORATION
Commonwealth of Pennsylvania, Department of
3
Environmental Protection; State of New Jersey,
Appellants
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-11-cv-00019
District Judge: The Honorable Terrence F. McVerry
Argued May 15, 2013
Before: SMITH, FISHER, and CHAGARES,
Circuit Judges
(Filed: August 21, 2013)
David J. Hickton
Paul E. Skirtich
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Robert J. Lundman [ARGUED]
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 7415
Washington, DC 20044
4
John Sither
L. Katherine Vanderhook-Gomez
United States Department of Justice
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, DC 20044
Counsel for Appellant United States of America
Richard P. Dearing
Claude S. Platton [ARGUED]
Monica B. Wagner
Office of Attorney General of the
State of New York
120 Broadway
25th Floor
New York, NY 10271
Michael Heilman
Commonwealth of Pennsylvania
Department of Environmental Resources
400 Waterfront Drive
Pittsburgh, PA 15222
Michael J. Myers
Office of Attorney General
of New York
Environmental Protection Bureau
The Capitol
5
Albany, NY 12224
Jon C. Martin
Office of Attorney General of New Jersey
Division of Law
Richard J. Hughes Justice Complex
P.O. Box 093
Trenton, NJ 08625
Lisa J. Morelli
Office of Attorney General
of New Jersey
Division of Law
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellants
Stephen J. Bonebrake
Andrew N. Sawula
Schiff Hardin
233 South Wacker Drive
6600 Sears Tower
Chicago, IL 60606
Kevin P. Holewinski
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001
6
James J. Jones
Rebekah B. Kcehowski
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
Brian J. Murray
Jones Day
77 West Wacker Drive
Suite 3500
Chicago, IL 69601
Beth M. Kramer
Jeffrey Poston
Chet M. Thompson [ARGUED]
Crowell & Moring
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004
Peter T. Stinson
W. Alan Torrance
Dickie, McCamey & Chilcote
Two PPG Place
Suite 400
Pittsburgh, PA 15222
John P. Elwood [ARGUED]
7
Kevin A. Gaynor
Benjamin S. Lippard
Jeremy C. Marwell
Vinson & Elkins
2200 Pennsylvania Avenue, N.W.
Suite 500 West
Washington, DC 20037
Paul D. Clement
David Z. Hudson
Bancroft
1919 M Street N.W.
Suite 470
Washington, DC 20036
Paul E. Gutermann
Akin, Gump, Strauss, Hauer & Feld
1333 New Hampshire Avenue N.W.
Suite 400
Washington, DC 20036
Counsel for Appellees
________________
OPINION
________________
SMITH, Circuit Judge.
8
The owners of a coal-fired power plant failed both
to obtain a preconstruction permit and to install certain
pollution-control technology before making changes to
the plant. The Environmental Protection Agency and
several states say the owners were required to do so. But
the EPA1 did not cry foul until more than a decade after
the changes, well after the owners had sold the plant.
Now the EPA wants to force the former owners to obtain
the missing preconstruction permit and to install the
missing pollution controls on a plant they no longer own
or operate. And they seek damages and an injunction
against the current owners who neither owned nor
operated the plant when it was allegedly modified
illegally. The relief now sought would require us to
distort plain statutory text to shore up what the EPA
views as an incomplete remedial scheme. That we
cannot do, and so we will affirm the District Court’s
dismissal of their claims.
1
For readability, “the EPA” refers to both the EPA and
the states unless otherwise specified.
9
I.
A. The Homer City Generation Power Plant goes
online in 1969, and Congress enacts the Clean
Air Act.
In the 1960s, the Pennsylvania Electric Company
(Penelec) and the New York State Electric & Gas
Corporation (NYSEG) built the Homer City Generating
Station (“the Plant”), a coal-burning power plant in
Indiana County, Pennsylvania. JA66. The Plant’s first
two burners went online at the end of the decade. Id. At
that time, the Clean Air Act was little more than a
federally funded research program on air pollution, the
EPA did not exist, and the few enforceable standards in
place did not affect the Plant’s construction and
operation. See Air Quality Act of 1967, Pub. L. No. 90-
148, 81 Stat. 485–507 (expanding studies into air
pollutants, emissions, and control techniques); Clean Air
Act Amendments of 1966, Pub. L. No. 89-675, 80 Stat.
954–55; Clean Air Act of 1963, Pub. L. No. 88-206, 77
Stat. 392–401; Air Pollution Control Act of 1955, Pub. L.
No. 84-159, 69 Stat. 322 (providing funds for federal
research into air pollution).
10
B. Congress enacts the Clean Air Act, which
grandfathers pre-existing pollution sources (like
the Plant) out of its requirements until they are
“modified.”
1. The Clean Air Act of 1970 sets up the
modern federalism-based framework.
While the Plant ramped up operations over the
next two decades, Congress enacted three amendments to
the Clean Air Act transforming it into the comprehensive
regulatory scheme it is today. It is necessary, then, to take
a minor detour through those legislative changes.
These amendments reach back to 1970 when
Congress converted the Act from a federal research
program on air pollution into the federalist enforcement
framework still in place today. Clean Air Act of 1970,
Pub. L. No. 91-604. The 1970 version charged the soon-
to-be2 EPA with setting national maximum permissible
levels of common pollutants for any given area—called
National Ambient Air Quality Standards, or NAAQS
(pronounced “knacks”). See 42 U.S.C. § 7409(a)–(b)
2
President Nixon did not create the EPA until later in
1970 after Congress declared a national environmental
policy. See National Environmental Policy Act of 1969,
42 U.S.C. §§ 4321–4347. Before the EPA, federal
environmental responsibilities were decentralized among
various executive agencies.
11
(requiring the EPA to choose levels that “allow[] an
adequate margin of safety” required “to protect the public
health” (quoting 42 U.S.C. § 7409(b)(1)). The EPA
designates “nonattainment” areas within each state where
a regulated pollutant levels exceeds the NAAQS (so
called because the areas are not attaining the EPA’s
standards). 42 U.S.C. § 7407(d).
The states then take primary responsibility (if they
want it3) for choosing how to meet the NAAQS within
their borders. See Train v. Natural Res. Def. Council,
Inc., 421 U.S. 60, 63–67 (1975). They do so by creating
State Implementation Plans, or SIPs. In their SIPs, states
“choose which individual sources within [their borders]
must reduce emissions, and by how much.” EME Homer
City Generation L.P. v. EPA, 696 F.3d 7, 13 (D.C. Cir.
2012). For instance, a state “may decide to impose
different emissions limits on individual coal-burning
power plants, natural gas-burning power plants, and other
sources of air pollution, such as factories, refineries,
incinerators, and agricultural activities.” Id. A state
must submit its SIP to the EPA for review and approval
whenever the NAAQS are updated, see 42 U.S.C.
§ 7410(a)(1), and each SIP must meet certain
requirements, see id. §§ 7410(a)(2), 7471.
3
If a state refuses to participate, the EPA takes over and
regulates pollution sources directly. EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7, 12 (D.C. Cir. 2012).
12
2. The 1977 amendments create the
Prevention of Significant Deterioration
(PSD) pre-construction permit program.
The 1970 framework merely prevented pollution
sources from exceeding the NAAQS. It did not prevent
new construction or modifications that would “gray out”
areas with clean air as long as the pollution did not
exceed the NAAQS. See Craig N. Oren, Prevention of
Significant Deterioration: Control-Compelling Versus
Site-Shifting, 74 Iowa L. Rev. 1, 9 (1988). At least that
was the consensus before federal courts interpreted the
Clean Air Act as requiring the EPA to “prevent
deterioration of [the nation’s] air quality, no matter how
presently pure that quality in some sections of the
country happens to be.” Sierra Club v. Ruckelshaus, 344
F. Supp. 253, 255 (D.D.C. 1972), aff’d, 41 U.S.L.W.
2255 (D.C. Cir. Nov. 1, 1972) (per curiam), aff’d by an
equally divided court sub nom. Fri v. Sierra Club, 412
U.S. 541 (1973) (per curiam) (Powell, J., recused). To
enforce that interpretation, Congress created a program
for reviewing the effect of new pollution sources on
existing air quality before they are constructed. Oren,
Prevention of Significant Deterioration, 74 Iowa L. Rev.
at 10.
Congress divided this aptly named New Source
Review program into two permit programs. For areas
with unclean air—called “nonattainment” areas because
they are not attaining the NAAQS—the Nonattainment
13
New Source Review program ensures that new emissions
will not significantly hinder the area’s progress towards
meeting the NAAQS. For areas with clean air—
“attainment” areas—the Prevention of Significant
Deterioration (PSD) program ensures that any new
emissions will not significantly degrade existing air
quality.4 The PSD program stands at the center of this
case.
The PSD program requires operators of pollution
sources in attainment areas to obtain a permit from the
state or the EPA before constructing or modifying a
“major emitting facility” (which emits significant air
pollution even with pollution controls installed). See 42
U.S.C. §§ 7475(a) (setting permitting requirements),
7479(1) (defining “major emitting facility”). This “case-
by-case” permitting process “tak[es] into account energy,
environmental, and economic impacts and other costs,”
40 C.F.R. § 52.21(b)(12); 42 U.S.C. §§ 7479, 7602(k), to
determine the “best available control technology”
4
These programs are not necessarily mutually exclusive.
It is possible for the same area to be classified as a
nonattainment area for some pollutants and as an
attainment area for others. See, e.g., United States v.
DTE Energy Co., 711 F.3d 643, 644 n.1 (6th Cir. 2013)
(noting that Monroe, Michigan, “falls into both
categories depending on the pollutant”).
14
(BACT)5 for controlling every regulated pollutant at the
facility to a specified limit, 42 U.S.C. § 7475(a)(4).6 In
keeping with the Clean Air Act’s federalist framework,
Congress required states to implement the PSD program
in their SIPs. See 42 U.S.C. § 7410(a)(2)(D)(i)(II),
(a)(2)(J).
5
BACT is something of a misnomer. It does not refer to
any specific technology, but rather to a specified
emissions limit for each pollutant that reflects which
pollution-control technology will be used. See 40 C.F.R.
§ 52.21(b)(12) (defining BACT as an “emissions
limitation” based on the “maximum degree of reduction
for each [regulated] pollutant” that “would be emitted
from any proposed major stationary source or major
modification”).
6
For comparison, BACT is not the only standard used in
the Clean Air Act. In nonattainment areas, sources are
required to attain the lowest achievable emission rate
(LAER). See 42 U.S.C. § 7503; Citizens Against Ruining
the Environment v. EPA, 535 F.3d 670, 674 n.3 (7th Cir.
2008). At least in theory, LAER is a stricter standard
than BACT. Whereas BACT factors in a limited cost-
benefit analysis, LAER requires sources to use whatever
technology achieves the lowest emission rate contained
in a SIP or possible in practice, regardless of costs. See
42 U.S.C. §§ 7501(3), 7503(a)(2). As a result,
determining LAER for any particular pollutant does not
require a case-by-case determination, unlike BACT.
15
3. The 1990 amendments add an operating-
permit program.
Such was the Clean Air Act until 1990. That year,
Congress passed its third and latest round of major
amendments. In addition to other practical problems that
arose after the 1977 amendments, citizens, regulators,
and even the owners and operators of pollution sources
had difficulty knowing which of the Clean Air Act’s
many requirements applied to a particular pollution
source. Sierra Club v. Johnson (Sierra Club 11th Cir.),
541 F.3d 1257, 1261 (11th Cir. 2008); Hon. Henry A.
Waxman, An Overview of the Clean Air Act Amendments
of 1990, 21 Envtl. L. 1721, 1747 (1991). After all, the
only requirements easily discoverable were those
expressly listed in the preconstruction permits issued
under the New Source Review program; any other
applicable requirements under the Clean Air Act were
scattered among separate records, permits, and other
documents, if they were recorded at all. Sierra Club 11th
Cir., 541 F.3d at 1261; Waxman, An Overview of the
Clean Air Act Amendments of 1990, 21 Envtl. L. at 1747.
Congress fixed that problem by enacting Title V.
See Operating Permit Program, 57 Fed. Reg. at 32,351
(explaining that Title V’s goals are “[i]ncreased source
accountability and better enforcement”). Title V
“requires all major sources of air pollution to obtain
operating permits” that “‘consolidate into a single
document (the operating permit) all of the clean air
16
requirements applicable to a particular source of air
pollution.’” Sierra Club 11th Cir., 541 F.3d at 1260(quoting Sierra Club v. Ga. Power Co., 443 F.3d 1346,
1348–49 (11th Cir. 2006)); see Pub. L. No. 101-549, §§
501–02, 104 Stat. 2399, 2635–36 (codified at 42 U.S.C.
§ 7661a(a)). Title V “does not generally impose new
substantive air quality control requirements,” Sierra Club
11th Cir., 541 F.3d at 1260, but does require the source
to obtain an operating permit that “assures compliance
. . . with all applicable requirements,” 40 C.F.R.
§ 70.1(b). Among the many requirements included in an
operating permit are PSD emission limits (if applicable).
Sierra Club 11th Cir., 541 F.3d at 1260. As with the
PSD program, Title V’s operating permit program
became a required element of SIPs. See 42 U.S.C.
§ 7661a.
C. Penelec and NYSEG modify the Plant during
the 1990s but do not apply for a PSD permit,
though they later apply for a Title V permit.
None of these comprehensive reforms initially
affected the operation of the Homer City Generation
Power Plant by Penelec and NYSEG. Congress had
grandfathered pre-existing pollution sources, including
the Plant, out of the PSD requirements “until those
sources [we]re modified in a way that increases
pollution.” Sierra Club 11th Cir., 541 F.3d at 1261; see
also United States v. Cinergy Corp., 458 F.3d 705, 709
(7th Cir. 2006).
17
But the Plant’s sidelined status came to a halt in
the 1990s. In 1991, 1994, 1995, and 1996, Penelec and
NYSEG allegedly made various changes to the Plant’s
boilers that increased net emissions of sulfur dioxide and
particulate matter.7 Those changes were allegedly
“major modifications” triggering the PSD permitting
requirements and requiring the use of BACT. JA66-67,
81-82, 84-85. But at the time, Penelec and NYSEG
believed their changes were “routine maintenance”
exempted from the PSD program. Oral Arg. Tr. at 36:5–
11; see 40 C.F.R. § 60.14(e)(1) (“The following shall not,
by themselves, be considered modifications under this
part: (1) Maintenance, repair, and replacement which the
Administrator determines to be routine for a source
category . . .”). So they did not apply for a PSD permit
and instead continued to operate the modified Plant as
though it were still exempt from the PSD program and
BACT-based emissions controls. In 1995, Penelec and
NYSEG applied for an operating permit as required by
Title V. Because they never received a PSD pre-
modification permit containing BACT-based emissions
limits for the Plant their Title V operating permit
application did not include any PSD-based requirements
or BACT-based emissions limits. JA83–84, 86–87.
7
These modifications included replacing economizers,
modifying ductwork, and installing new reheat
temperature-control dampers and internal boiler supports.
JA66–67, 81–82, 84–85.
18
D. EPA announces an “unprecedented” initiative
to enforce the Clean Air Act. Meanwhile, the
Former Owners sell the Plant to the Current
Owners, after which Pennsylvania approves the
Plant’s Title V permit.
While Penelec and NYSEG waited for
Pennsylvania and the EPA to issue its Title V operating
permit, the EPA rolled out a new enforcement initiative
that eventually ensnared the Plant’s operations. In 1999,
the EPA “jointly announced what they called an
‘unprecedented action’”—civil enforcement actions
against seven electric utility companies and the
Tennessee Valley Authority for Clean Air Act violations
dating back more than twenty years at thirty-two power
plants across ten states. Margaret Claiborne Campbell &
Angela Jean Levin, Ten Years of New Source Review
Enforcement Litigation, 24 Nat. Resources & Env’t 16
(2010). That action was merely the first in what would
become “the largest, most contentious industry-wide
enforcement initiative in EPA history” to retroactively
target violations of the New Source Review program:
[A]ll involve virtually identical allegations.
In each case, EPA alleges that the
replacement of parts, typically boiler
components or portions or components, at
existing electric generating units amounted
to “major modifications” of those units,
triggering new source permitting and
19
regulatory requirements. According to EPA,
failure to obtain preconstruction permits
constitutes a continuing violation, rendering
ongoing operation of the units unlawful.
Id.The same year as the EPA’s announcement,
Penelec and NYSEG sold the Plant to EME Homer City
Generation, L.P. Two years later, EME Homer City
needed to raise capital, so it entered a sale-leaseback
transaction with Homer City Owner-Lessors 1 through 8
(“Homer City OLs”): EME Homer City sold the Plant to
the Homer City OLs, who simultaneously leased it back
to EME Homer City. As a result, Penelec and NYSEG
became the former owners and operators (“Former
Owners”), and EME Homer City and the Homer City
OLs became the current owners and operators (“Current
Owners”). Despite these transfers, no one sought a PSD
permit or installed BACT.
In 2004, the Pennsylvania Department of
Environmental Protection finally approved the Title V
permit application (for which the Former Owners had
applied nine years earlier) and issued the Title V permit
to the Current Owners. JA80. Because there was no
PSD permit, the issued Title V permit did not include any
PSD requirements or BACT requirements.
20
E. In 2011, as part of that initiative, the EPA and
the States sue the Former and Current Owners.
By 2004, the Plant had become “one of the largest
air pollution sources in the nation,” annually releasing
nearly 100,000 tons of sulfur dioxide, which
“contribut[es] to premature mortality, asthma attacks,
acid rain, and other adverse effects in downwind
communities and natural areas.” JA67. With its
pollution catching the EPA’s attention, the Plant became
a target of the agency’s new enforcement initiative.
In 2008, the EPA notified the Current and Former
Owners of their alleged violations (as required by the
Clean Air Act) before eventually suing them in the
Western District of Pennsylvania in January 2011.8
According to the EPA, the Former Owners had violated
(1) the PSD program by modifying the Plant without a
PSD permit and without installing BACT-based
emissions controls before modifying the Plant and (2)
Title V by submitting an incomplete operating-permit
8
This three-year gap between the notice of violations and
the lawsuit is not abnormal. The notice-of-violation
requirement, tracking the federalism-based structure of
the rest of the Clean Air Act, affords states the
opportunity to take the lead in enforcement by giving the
alleged violators an opportunity to negotiate a solution to
the violations with their states. The EPA’s enforcement
authority is a backstop.
21
application that omitted the Plant’s modifications and
proposed BACT controls. The Current Owners, on the
other hand, had allegedly violated (1) the PSD program
by operating the Plant after it had been modified without
BACT controls installed or a PSD permit and (2) Title V
by operating in accordance with their facially valid but
inadequate operating permit (inadequate because it failed
to include any of the applicable PSD permit requirements
or require the use of BACT). JA81–83, 84–86. The EPA
sought injunctive relief against the Former and Current
Owners as well as civil penalties against the Current
Owners for their past five years of operation. JA88–89.9
That was only the beginning. New York, New
Jersey, and the Pennsylvania Department of
Environmental Protection filed motions to intervene as
plaintiffs, which the District Court granted. See JA91–
130, 195–223. These States alleged the same violations
9
Because the Clean Air Act does not contain a statute of
limitations, the general federal five-year statute of
limitations applies to any claim for civil penalties. See
28 U.S.C. § 2462 (establishing a general five-year statute
of limitations for “an action, suit or proceeding for the
enforcement of any civil fine, penalty, or forfeiture,
pecuniary or otherwise”). The EPA did not seek civil
penalties from the Former Owners because the five-year
statute of limitations for civil penalties had expired.
JA82–89.
22
as the EPA10 and raised state-law claims that concededly
rise or fall with the federal claims.
The Former and Current Owners moved to dismiss
the complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. The District Court
granted that motion in its entirety and dismissed the
EPA’s claims in October 2011. See JA6. In a nutshell,
the District Court held that the five-year statute of
limitations had expired on the civil-penalty PSD claims
against the Current Owners because the PSD program
imposes only prerequisites to construction and
modification, not ongoing conditions of operation. And
because the Current Owners were not the ones to modify
the Plant, they could not be liable for violating the PSD
requirements and thus injunctive relief was also
unavailable against them. The District Court also
declined to enjoin the Former Owners because they no
longer owned or operated the Plant and thus posed no
risk of violating the PSD program in the future. JA28–
32.
10
The States’ allegations differed from the EPA’s in only
one respect: according to the States, the Former Owners
modified the Plant (and thus triggered the PSD
requirements) not only in 1991 and 1994 as alleged by
the EPA, but also in 1995 and 1996. As all the parties
agree, this difference is irrelevant to our analysis.
23
As to the Title V operating permit claims, the
Current Owners could not be liable because Title V does
not transform the PSD requirements into operating duties
and does not permit a collateral attack on a facially valid
permit. JA32–36. Likewise, the Former Owners could
not be held liable because all that Title V prohibits is
operating a source out of compliance with the operating
permit. The Former Owners never owned or operated the
Plant after the Title V permit was issued. JA32.
The EPA and States appealed.11
11
Because the EPA’s and States’ PSD claims arise under
federal law, the District Court had federal-question
jurisdiction under 28 U.S.C. § 1331. See Landsman &
Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 82 n.8
(3d Cir. 2011) (explaining that federal-question
jurisdiction under § 1331 extends only to “cases ‘in
which a well-pleaded complaint establishes either [1] that
federal law creates the cause of action or [2] that the
plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.’”
(quoting Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 28 (1983))). Given those federal
anchor claims, the District Court had supplemental
jurisdiction under 28 U.S.C. § 1367 over the state-law
claims. Because the District Court’s order dismissing the
EPA’s and States’ claims was a final order, we have
appellate jurisdiction under 28 U.S.C. § 1291. As we
24
II.
The EPA asks us to reverse the District Court’s
dismissal of its PSD preconstruction-permit claims and
Title V operating-permit claims against the Former and
Current Owners. We will affirm the District Court’s
dismissal in its entirety.
A. PSD Claims
1. Against the Current Owners
The EPA contends that the Current Owners
violated the PSD program by operating the Plant while
failing to use BACT and satisfy the PSD requirements.
As relief, the EPA seeks $37,500 (the maximum daily
civil penalty12) for each day that the Current Owners
explain in Part II.B, however, the District Court lacked
jurisdiction over the EPA and States’ Title V claims.
12
Although the statute sets the maximum civil penalty at
$25,000 “per day for each violation,” 42 U.S.C.
§ 7413(b), Congress has since directed each federal
agency to regularly adjust for inflation statutory civil
penalties that can be imposed under laws it administers.
Federal Civil Penalties Inflation Adjustment Act of 1990,
28 U.S.C. § 2461 note, amended by Debt Collection
Improvement Act of 1996, 31 U.S.C. § 3701 note.
Effective after January 12, 2009, the inflation-adjusted
25
operated the Plant for the five years preceding this
lawsuit (the statute of limitations for civil penalties).
They also want a permanent injunction ordering the
Current Owners to obtain a PSD permit and install
BACT.
The District Court dismissed these claims,
reasoning that failure to comply with the PSD program is
a one-time violation that occurs only at the time of
construction or modification (here, 1996 at the latest).
Consequently, it concluded that the Current Owners did
not violate the PSD program because they did not modify
the Plant; the Former Owners did.13 But if, as the EPA
maximum daily civil penalty under the Clean Air Act is
$37,500. 40 C.F.R. § 19.4.
13
The EPA does not argue that the Clean Air Act
imposes successor liability on the Current Owners for the
Former Owners’ alleged violation of the PSD Program.
Compare 42 U.S.C. § 7413(b) (authorizing the EPA to
enforce the Clean Air Act against a “person that is the
owner or operator” of a “major emitting facility” only if
“such person” has committed a violation (emphasis
added)), with 42 U.S.C. § 9607(a) (providing a list of
“persons”—explicitly including current owners or
operators and any person who owned or operated the
facility when the hazardous substances were disposed—
who can be held liable under the Comprehensive
Environmental Response, Compensation and Liability
26
urges, the PSD program imposes operating duties, then a
new violation occurs each day that the Current Owners
operated the Plant without BACT or a PSD permit
(subject, of course, to the five-year statute of limitations).
The claims against the Current Owners thus rise or fall
on the answer to a single question: Does the PSD
program prohibit operating a facility without BACT or a
PSD permit?
We agree with the unanimous view of the other
courts of appeals that have addressed this question. The
PSD program’s plain text requires the answer be “no.”
Under 42 U.S.C. § 7475(a), “[n]o major emitting facility
. . . may be constructed [or modified14] . . . unless” it
meets various PSD requirements, including obtaining a
PSD permit and installing BACT-based emission
controls. That provision prohibits “construct[ing]” a
facility without obtaining a PSD permit or using BACT,
and while “construction” is defined to include
Act (CERCLA) for remediation costs). Nor does the
EPA argue that the Former Owners’ liability under the
Clean Air Act was transferred to the Current Owners as
part of the Plant’s sale.
14
Although § 7475(a) refers only to construction, the
Clean Air Act defines construction as including
modification of an existing pollution source. 42 U.S.C.
§ 7479(2)(C); Envtl. Def. v. Duke Energy Corp., 549 U.S.
561, 568 (2007).
27
“modifications,” see 42 U.S.C. § 7479(2)(C), it does not
include “operation.” And § 7475(a) does not exactly try
to hide its exclusive link to construction and
modification: after all, the section is titled
“Preconstruction Requirements”—not “Preconstruction
and Operational Requirements.” In short, “[n]othing in
the text of § 7475 even hints at the possibility that a fresh
violation occurs every day until the end of the universe if
an owner that lacks a construction permit operates a
completed facility.” United States v. Midwest
Generation, LLC, 720 F.3d 644, 647 (7th Cir. 2013); see
also Sierra Club v. Otter Tail Power Co., 615 F.3d 1008,
1015 (8th Cir. 2010) (agreeing with the Eleventh Circuit
that operating a modified facility without a PSD permit is
simply “not articulated as a basis for a violation”
(quoting Nat’l Parks & Conservation Ass’n v. Tenn.
Valley Auth. (Nat’l Parks 11th Cir.), 502 F.3d 1316,
1323 (11th Cir. 2007))). Instead, “[t]he violation is
complete when construction [or modification]
commences without a permit in hand.” Midwest
Generation, LLC, 720 F.3d at 647.
Section 7475’s omission of any reference to
“operation” takes on dispositive significance given that
other parts of the Clean Air Act establish operational
conditions by “employing plain and explicit language.”
Otter Tail Power Co., 615 F.3d at 1015. Two examples
suffice: 42 U.S.C. § 7411(e) makes it “unlawful . . . to
operate” a facility in violation of New Source
28
Performance Standards. Title V similarly prohibits any
person from “operat[ing]” a source “except in
compliance with a [Title V operating] permit” and notes
in the very next sentence that nothing in Title V “shall be
construed to alter the applicable requirements of [the
PSD program] that a permit be obtained before
construction or modification.” 42 U.S.C. § 7661a(a)
(emphasis added). Congress’s choice to explicitly refer
to operating conditions elsewhere, but not in § 7475(a),
can only be deliberate, especially in such comprehensive
legislation. Barnhart v. Sigmon Coal Co., 534 U.S. 438,
452 (2002) (“When Congress includes particular
language in one section of a statute but omits it in another
section . . . , it is generally presumed that Congress acts
intentionally and purposely[.]” (internal quotation marks
and citations omitted)). We cannot override that choice.
See Otter Tail Power Co., 615 F.3d at 1015 (“Where
Congress has intended to establish operational conditions
under the Clean Air Act, it has clearly said so. But it has
not done so for the PSD program.”).
The PSD program’s enforcement provisions
confirm this. The EPA and States can “take such
measures . . . as necessary to prevent the construction or
modification” of a source to which the PSD requirements
apply. 42 U.S.C. § 7477 (emphasis added). The Act
authorizes citizen suits “against any person who proposes
to construct or constructs” (or, by definition, proposes
“to modify or modifies”) a facility without a required
29
PSD permit or violates any condition of a PSD permit.
42 U.S.C. § 7604(a)(3) (emphasis added). Nowhere do
these provisions authorize enforcement against a person
who “operates” a source without satisfying applicable
PSD requirements.15
15
The EPA relies on an isolated piece of legislative
history from the 1990 amendments to show that Congress
intended to authorize the EPA to prevent sources from
operating out of compliance with the PSD requirements.
In 1990, the EPA’s enforcement authority under 42
U.S.C. § 7477 authorized it to “take such measures . . . as
necessary to prevent the construction” of a source
violating the PSD requirements. As part of the 1990
changes, Congress considered and rejected a Senate
amendment that would have added the terms “operation”
and “modification” such that § 7477 would have
authorized the EPA to “take such measures . . . as
necessary to prevent the construction, operation, or
modification of a major emitting facility.” S. Rep. No.
101-228, at 376 (1989), reprinted in 1990 U.S.C.C.A.N.
3385, 3759. Instead, Congress adopted a House
amendment that added the term “modification” but not
the term “operation.” H.R. Rep. No. 101-490(I) § 609
(1990), reprinted in 1990 WL 258792, at *178. That
amendment gave § 7477 its current form, which
authorizes the EPA to “take such measures . . . as
necessary to prevent the construction or modification” of
30
a source violating the PSD requirements. In explaining
this choice, the Conference Report stated that the House
amendment
recognizes existing law which allows EPA
to initiate enforcement actions against
sources that are being constructed or
modified in violation of new source
requirements, and leaves intact the current
interpretation of the Agency that allows
action against sources that are operating in
violation of new source requirements.
136 Cong. Rec. 36007, 36086 (Oct. 27, 1990) (Chaffee-
Baucus Statement of Senate Managers, S. 1630, The
Clean Air Act Amendments of 1990) (emphasis added).
The EPA considers this statement proof that
Congress deliberately omitted “operation” from the
EPA’s § 7477 enforcement authority because it believed
the EPA “already ha[d] that authority,” not to eliminate
such authority. Oral Arg. Tr. at 12:15–20. But proof it is
not. As is always the case with Congress’s rejection of
an amendment, its meaning is elusive. Perhaps Congress
rejected the amendment because it disagreed with the
amendment’s legal directive and did not want to adopt
that directive as law. See Doe v. Chao, 540 U.S. 614,
622 (2004) (“This [interpretation] is underscored by
drafting history showing that Congress cut out the very
31
The EPA responds by identifying other provisions
that purport to turn the PSD requirements into
operational conditions. It points to § 7604(a)(1), which
authorizes citizen suits for violations of “an emission
standard or limitation,” which is defined to include “any
requirement to obtain a permit as a condition of
language in the bill that would have authorized any
presumed damages.”). Equally as likely, however, is that
Congress rejected the amendment agreeing with the legal
principle in the amendment but believing that the
amendment was unnecessary because the statute already
expressed that principle. Here, the situation is even
murkier because Congress enacted the 1990 amendments
under the assumption that all sources would receive a
required PSD permit before construction or modification
began. See infra discussion at pp. 31–32. Therefore,
Congress’s otherwise-absolute statement might reflect a
narrower belief that the EPA could enforce the PSD
requirements against sources operating in violation of
their PSD permit—an uncontroversial proposition.
Given the statute’s clarity, we need not try to recreate
what the Conference Report meant by this statement. See
Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172
(2013) (“[W]e assum[e] that the ordinary meaning of [the
statutory] language accurately expresses the legislative
purpose.” (internal quotation marks and citations
omitted)).
32
operations,” 42 U.S.C. § 7604(f)(4). But § 7604(a)(1)
merely creates a private cause of action against a person
who is required to (but does not) obtain a permit as a
condition of operations. It does not say that a PSD
permit is, in fact, a condition of operations.
The EPA takes the next logical step, arguing that
obtaining a PSD permit—and not just the PSD
requirements themselvse—is itself a condition of
operations, notwithstanding all the plain text to the
contrary. The agency’s argument is simple: obtaining a
PSD permit is a condition of operating a source because
PSD permits impose some operational conditions on the
sources they govern. For example, § 7475(a)(1) requires
the permit to “set[] forth emission limitations” that will
govern post-construction operation. Subsection (a)(4)
requires that the source be subject to BACT-based
emission controls. And subsection (a)(7) sets ongoing
monitoring requirements during post-construction
operation.
But Ockham’s Razor reminds us that simplicity in
argument, without more, is no barometer of merit. As the
Eighth Circuit explained, “[e]ven though the
preconstruction permitting process may establish
obligations which continue to govern a facility’s
operation after construction, that does not necessarily
mean that such parameters are enforceable independent
of the permitting process.” Otter Tail Power Co., 615
F.3d at 1017. In other words, just because the PSD
33
program requires a source to obtain a permit that sets
some operating conditions does not mean that the PSD
program requires a source without a permit to comply
with operating conditions. Indeed, even the EPA’s own
regulations distinguish between unlawful modifications
and unlawful operations:
Any owner or operator who constructs or
operates a source or modification not in
accordance with the [PSD] application . . .
or with the terms of any approval to
construct, or any owner or operator of a
source or modification . . . who commences
construction . . . without applying for and
receiving approval [under the PSD
program], shall be subject to appropriate
enforcement action.
40 C.F.R. § 52.21(r)(1) (emphasis added). Had the EPA
wanted to make operating without a required PSD permit
unlawful, the last half of this regulation would use the
term “operates” just like the first half does: “any owner
or operator of a source or modification . . . who
commences construction or operates a source or
modification without applying for and receiving approval
[under the PSD program].” But the regulation does not
say that.
Alternatively, the EPA argues that § 7475(a) is
merely a rule of timing that starts the PSD permitting
34
requirements at the time of construction or modification.
Yet § 7475(a) does not say that “a violation starts when a
major emitting facility is constructed or modified
without” meeting the PSD requirements. Rather,
§ 7475(a) prohibits modifying and constructing facilities
without satisfying the PSD requirements. More to the
point, this timing argument is just a repackaging of its
contention that § 7475(a) imposes operational conditions.
Similar reasons doom the EPA’s argument that
BACT is a freestanding requirement that applies to
operating sources regardless of whether a source obtains
a PSD permit before construction or modification. For
this proposition, the EPA quotes § 7475(a)(4)’s statement
that a “proposed facility is subject to the best available
control technology for each [regulated] pollutant”
(emphasis added). That present-tense language might
seem to create an ongoing obligation to use BACT
regardless of a PSD permit’s terms or existence. Except
that the subsection says more than the language EPA
quotes. Under § 7475(a)(4), “[n]o major emitting facility
. . . may be constructed . . . unless (4) the proposed
facility is subject to the best available control technology
for each [regulated] pollutant.” The BACT requirement
is simply part of § 7475’s prohibition on construction—
not operation. Otherwise, § 7475(a)(4) would declare
that “[n]o major emitting facility . . . may be constructed
or operated . . . unless (4) the proposed facility is subject
to” BACT. As is, though, the BACT requirement is “not
35
a freestanding [operational] requirement.” Otter Tail
Power Co., 615 F.3d at 1016. And as the Seventh
Circuit illustrated, it would not violate § 7475 even “[i]f
the owners ripped out or deactivated the best available
control technology after finishing construction,” (though
it might violate some other law). Midwest Generation,
LLC, 720 F.3d at 647; see Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 484 (2004)
(describing subsections (a)(1) and (a)(4) as creating an
“express preconstruction requirement” to include “a
BACT determination in a facility’s PSD permit”).
Even if we take the EPA’s argument on its own
terms and ignore the construction limitation preceding
subsection (4), the argument ignores the word
“proposed.” 42 U.S.C. § 7475(a)(4). After all, if the
BACT requirement is interpreted as a freestanding
requirement separate from the PSD permitting process,
then facilities that never obtained PSD permits would
have to apply BACT as a condition of operations after
construction is completed. But if construction is
completed, then the facilities are no longer “proposed”
facilities, making that word meaningless. See Corley v.
United States, 556 U.S. 303, 314 (2009) (“[O]ne of the
most basic interpretive canons [is] that [a] statute should
be construed . . . so that no part will be inoperative or
superfluous, void or insignificant.” (internal quotation
marks and citations omitted)). Subsection (4) is no more
than a congressional mandate to require constructed and
36
modified facilities in attainment areas to use BACT
rather than an alternative emissions standard—such as
the more-stringent lowest achievable emission rate
(LAER), which does not require a cost-benefit analysis
and applies to nonattainment areas exceeding the
NAAQS.
Apart from any issue of statutory interpretation, a
freestanding BACT requirement would not survive in the
real world. BACT determinations are products of the
permitting process, “tailored to each facility ‘on a case-
by-case basis’” using cost-benefit analysis specific to
each pollution source. Otter Tail Power Co., 615 F.3d at
1017 (quoting 42 U.S.C. § 7479(3)); see also 40 C.F.R.
§ 52.21(b)(12) (similar). There is no statutory or
regulatory provision (outside of some individual states’
SIPs) for obtaining a BACT determination outside of the
PSD permitting process. Without an issued PSD permit,
there are no BACT emission limits to violate. Tellingly,
the EPA cannot explain what the BACT limits are for the
Plant in this case because the permitting process has not
occurred. See U.S. Reply Br. at 10 (“BACT is typically
specified during the permitting process. . . . [But] the
precise BACT standard for a particular source need not
be pre-determined for an operator to violate the BACT
obligation.”).
Without supporting statutory text, the EPA falls
back on (and the States primarily rely upon) policy
arguments. Given the clarity of the statute, these
37
concerns have no place in the process of statutory
interpretation. Rodriguez v. United States, 480 U.S. 522,
526 (1987) (“Where, as here, the language of a provision
. . . is sufficiently clear in context and not at odds with
the legislative history, . . . [there is no occasion] to
examine the additional considerations of policy that may
have influenced the lawmakers in their formulation of the
statute.” (alterations in original) (internal quotation marks
and citations omitted)). But lest one be concerned that
the EPA’s parade of horribles may come to pass, such
fears are inflated. First, it is not true that “a company
that modifies a facility without obtaining a PSD permit or
installing [BACT] pollution controls would be subject to
a maximum total penalty of [only] $37,500” (the
maximum daily fine). U.S. Br. at 46; States Br. at 60.
Like Rome, facilities are not built—or modified—in a
day. It is possible that the maximum daily fine accrues
each day the owner or operator spends modifying or
constructing the facility—from the beginning of
construction to the end of construction. An owner or
operator who modifies a facility every day for a year
without satisfying the PSD requirements presumably
commits a violation every day and is subject to one
year’s worth of daily fines—or more than $13 million.
But even assuming that the EPA is correct that
only a single daily fine applies, that penalty is not
“laughably inadequate to encourage PSD compliance.”
Id. Congress has endowed the EPA with other tools to
38
deter would-be violators—from injunctive remedies that
include terminating new construction and requiring
extensive modifications, see 42 U.S.C. § 7477, to
criminal penalties against those who “knowingly
violate[]” the Clean Air Act, including by failing to
obtain a PSD permit before construction or modification,
see 42 U.S.C. § 7413(c)(1). And its enforcement arsenal
is not limited to violators. If a state under-enforces the
Clean Air Act or its own SIP, the EPA can take action to
bring the SIP into compliance and can even directly
revise the SIP if necessary. 40 C.F.R. § 51.166(a)(3).
Nor is the EPA unable to know which sources are
modified or constructed. To be sure, sources are not
required to report or obtain a PSD permit for routine
maintenance that they believe falls below a “major
modification.” But that does not consign the EPA to
playing whack-a-polluter by guessing which sources
should be the target of its enforcement efforts. The EPA
is statutorily empowered to require any source owner or
operator, regulated party, or any person “who the
Administrator believes may have information necessary”
for implementing the Clean Air Act and determining
violations—that is, nearly anyone in the United States—
“on a one-time, periodic, or continuous basis” to keep
records, make reports, and submit to inspections,
monitoring, and emissions sampling, and “provide such
other information as the Administrator may reasonably
require.” 42 U.S.C. § 7414(a). States, as the Clean Air
39
Act’s primary enforcers, have similarly broad
investigative powers. Given the breadth of these powers,
we see no reason why the EPA and States lack authority
to require the advance reporting of some or all proposed
changes to facilities, whether or not they rise to a
modification.
At the end of the day, there may or may not be a
reasonable explanation for Congress’s choice not to
impose the PSD requirements as operational conditions.
On one hand, the Clean Air Act was not designed solely
for the purpose of saving the environment at all costs.
Like any legislation, it is a congressional compromise
between competing purposes—in the Clean Air Act’s
case, “between interests seeking strict schemes to reduce
pollution rapidly” and other “interests advancing the
economic concern that strict schemes would retard
industrial development.” Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 847 (1984). As a
result, Congress designed the Clean Air Act to protect the
nation’s air quality and to protect the “reasonable
expectations of facility operators” and the “significant
investment of regulatory resources made by state
permitting agencies.” Otter Tail Power Co., 615 F.3d at
1022. That compromise might well be reflected in the
omission of PSD requirements as operational conditions:
If the EPA does not object within five years of the
completion of a facility’s modification, then it loses the
right to seek civil penalties under the statute of
40
limitations, but can still obtain an injunction requiring the
owner or operator to comply with the PSD requirements.
But when more than five years have passed since the end
of construction and the facility has been taken over by
new owners and operators, the Clean Air Act protects
their reasonable investment expectations.
On the other hand, perhaps the omission of PSD
requirements as operational conditions was simply an
oversight. Congress pieced together the Clean Air Act
over decades as it reacted to the latest regulatory
obstacles. And there is some evidence that whenever the
topic of the PSD permitting process arose, Congress
simply assumed that a PSD permit would be issued
before construction or modification began. See H.R.
Rep. No. 95-294, at 144–45 (1977), reprinted in 1977
U.S.C.C.A.N. 1077, 1223–24; S. Rep. No. 95-127, at 32
(1977); H.R. Rep. No. 95-564, at 153 (1977) (Conf.
Rep.), reprinted in 1977 U.S.C.C.A.N. 1502, 1533; see
also Julie Martin, Note, Enforcement for Construction
Without PSD Permit and BACT Compliance, 16 N.Y.U.
Envtl. L.J. 563, 619 (2008) (explaining that because of
Congress’s assumption, the “Clean Air Act does not
explicitly address the possibility of a facility’s
construction and eventual operation without the requisite
permission to install uncontrolled emissions sources”).
Either way, we cannot modify the statute: if an
intentional choice reflecting a compromise, we cannot
adjust the bargain Congress has struck; if an oversight,
41
we cannot usurp legislative authority to fix the omission.
See, e.g., Rodriguez, 480 U.S. at 526 (“Deciding what
competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence
of legislative choice—and it frustrates rather than
effectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must be
the law.”).
Aside from the federal statutes and regulations, the
EPA turns to the Pennsylvania SIP as a source of
freestanding PSD requirements.16 But Pennsylvania’s
SIP merely parallels the Clean Air Act’s PSD
requirements and does nothing to transform the PSD
permitting requirements into operating conditions. For
example, 25 Pa. Code § 127.11 prohibits a person from
“caus[ing] or permit[ting] the construction or
modification”—not operation—“of an air contamination
source” unless the Pennsylvania Department of
Environmental Protection has approved the source’s plan
for construction or modification. And like the EPA’s
own regulation at 40 C.F.R. § 52.21(r)(1), the
Pennsylvania SIP requires sources to operate in
compliance with their application for plan approval and
16
The EPA has approved Pennsylvania’s SIP. See 40
C.F.R. §§ 52.2020–52.2063; 37 Fed. Reg. 10,842, 10,889
(May 31, 1972); 49 Fed. Reg. 33,127 (Aug. 21, 1984); 61
Fed. Reg. 39,597 (July 30, 1996).
42
“the conditions in the plan approval issued by the
Department”—which does not prohibit operation without
an approved plan (or PSD permit). 25 Pa. Code
§ 127.25. To be sure, the Pennsylvania SIP does
authorize the Department to “issue an operating permit to
an existing and operating source that is out of compliance
with . . . the Clean Air Act or the regulations thereunder.”
25 Pa. Code § 127.445(a). But that provision, which
allows the Department to issue corrective operating
permits for sources lacking required PSD permits, hardly
requires the owners and operators to apply for PSD
permits as a condition of operation.
The Pennsylvania SIP’s omission of any language
imposing an operational duty to obtain an approved plan
(or PSD permit) aligns this case with the Eighth and
Eleventh Circuits’ decisions, both of which refused to
infer ongoing obligations from SIPs with similar
language. Otter Tail Power Co., 615 F.3d at 1015; Nat’l
Parks 11th Cir., 502 F.3d at 1323–25. That same
omission distinguishes this case from the Sixth Circuit’s
decision in National Parks Conservation Association v.
Tennessee Valley Authority, which interpreted the
Tennessee SIP’s unique language as “establish[ing] that
the duty to obtain a construction permit containing the
proper emissions limits is ongoing, even post-
construction.” Nat’l Parks Conservation Ass’n v. Tenn.
Valley Auth., 480 F.3d 410, 419 (6th Cir. 2007); see also
Midwest Generation, LLC, 720 F.3d at 64 (“[T]he [S]ixth
43
[C]ircuit’s decision rests on Tennessee statutes and
implementation plans that require certain sources to use
[BACT] . . . .”).
In short, § 7475(a) unambiguously prohibits only
constructing or modifying a facility without meeting PSD
requirements.17 The Current Owners have done neither;
17
The EPA relies on various regulations that purport to
create operational duties to obtain a PSD permit and use
BACT. With these regulations in hand, it claims
Chevron deference for the regulations’ interpretation of
the Clean Air Act and Auer deference for its
interpretation of those regulations. This argument fails at
each step. First, the cited regulations unambiguously
track the PSD program in prohibiting only construction
or modification, not operation, without getting a PSD
permit or using BACT. See Otter Tail Power Co., 615
F.3d at 1016–17. Second, the EPA is not entitled to Auer
deference because the regulations are clear. Christensen
v. Harris Cnty., 529 U.S. 576, 588 (2000) (“Auer
deference is warranted only when the language of the
regulation is ambiguous.”). Third, even if the regulations
were ambiguous, we would still not defer to the EPA’s
interpretation of the PSD regulations as imposing
operational duties because such an interpretation would
contradict the unambiguous text of § 7475(a). Hagans v.
Comm’r of Soc. Sec., 694 F.3d 287, 295 (3d Cir. 2012)
44
they have only operated the Plant. As a result, the
District Court correctly dismissed the civil-penalty and
injunctive relief sought against the Current Owners.18
2. Against the Former Owners
That leaves the PSD claims against the Former
Owners. Although the EPA has been less than
forthcoming about what its proposed injunction would
accomplish, it has offered two possibilities: (1) ordering
the Former Owners to install BACT at the Plant, and (2)
ordering the Former Owners to purchase emissions
(“[W]e need reach the [Chevron] deference question only
if the statutory language is ambiguous.”).
18
The EPA does not argue that the statute of limitations
should be equitably tolled—an argument we need not
address. See Michael J. Cole, A Blueprint for EPA: How
the Agency Can Overcome the Statute of Limitations
When Enforcing PSD Under the Clean Air Act, 31 Utah
Envtl. L. Rev. 181, 192 (2011) (arguing that “courts
should toll the statute of limitations for a power plant’s
PSD violations if the plant fails to disclose to the state
authorities that it undertakes a major modification”); see
also Knight v. Brown Transp. Corp., 806 F.2d 479, 484
(3d Cir. 1986) (acknowledging that equitable tolling
applies where the defendant had a duty to disclose
information to the plaintiff and the defendant’s failure to
disclose information prevented the plaintiff from
realizing that he had a claim).
45
credits and retire them unused, effectively reducing the
amount of sulfur dioxide that facilities elsewhere in the
nation can emit. The District Court dismissed this
request for a permanent injunction, concluding that
mandatory injunctions are available only for ongoing
violations and “the Former Owners’ alleged PSD
violations constituted wholly[] past failures to obtain pre-
construction permits that did not constitute continuing
violations.” JA29. We will affirm that dismissal on a
narrower ground. The text of the Clean Air Act does not
authorize an injunction against former owners and
operators for a wholly past PSD violation, even if that
violation causes ongoing harm.19 See Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (“[W]e
may affirm [the District Court’s decision] on any ground
supported by the record.”).
The Clean Air Act authorizes the EPA to bring a
civil enforcement action when any person has violated a
permit or SIP, has violated any requirement in certain
subchapters of the Clean Air Act (including the PSD
program), or “attempts to construct or modify a major
stationary source” in any state that the EPA
19
Because we base our conclusion solely on the statutory
text of the Clean Air Act, we express no opinion on the
District Court’s conclusion that mandatory injunctions
are not available in general to remedy ongoing harm from
wholly past violations.
46
Administrator has found out of compliance with the New
Source Review program. 42 U.S.C. § 7413(a)(5), (b)(1)–
(3). That same provision limits a district court’s
jurisdiction to awarding certain kinds of relief. District
courts have jurisdiction only “to restrain such violation,
to require compliance, to assess such civil penalty, to
collect [certain] fees owed the United States,” and “to
award any other appropriate relief.” Id. § 7413(b). Each
type of relief in this list (except for civil penalties20) is
necessarily forward-looking. A district court, for
example, cannot “collect” fees that were owed to the
United States in the past but are no longer owed. And
with time travel yet to be discovered, it is impossible to
“restrain” a violation that occurred twenty years ago.
Likewise, courts cannot “require compliance” from
defendants who are not currently violating the Clean Air
Act and who cannot violate the Act in the future because
they no longer own or operate the source. Cf. Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 59 (1987) (interpreting the Clean Water Act’s
citizen-suit provision, which authorizes citizens to seek
civil penalties against a person who “is in violation” of
20
Civil penalties are the only type of relief in this list that
can be imposed for past violations. That fact does not
change our analysis because the separate five-year statute
of limitations authorizes civil penalties for violations up
to five years in the past, and civil penalties—as opposed
to injunctive relief—are necessarily retrospective.
47
the Act, and concluding that this phrase “makes plain”
that the “harm sought to be addressed by the citizen suit
[must] lie[] in the present or the future, not the past”).
The only remaining term in the statute—“any other
appropriate relief”—might initially appear to give district
courts broad authority to fashion injunctive relief against
former owners and operators. But this general catch-all
cannot be read so broadly as to authorize an injunction
for completed violations. Under the canon of ejusdem
generis, a “general term” (“any other appropriate relief”)
following a “series of specific items” (“restrain such
violation,” “require compliance,” and so on) “is confined
to covering subjects comparable to the specifics it
follows.” Hall Street Assocs., LLC v. Mattel, Inc., 552
U.S. 576, 586 (2008); see also Wash. State Dep’t of Soc.
& Health Servs. v. Guardianship Estate of Keffeler, 537
U.S. 371, 385 (2003) (interpreting “other legal process”
as limited to “some judicial or quasi-judicial mechanism”
transferring property to discharge liability to be
consistent with the preceding terms “levy, attachment,
[and] garnishment”); Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 114–15 (2001) (interpreting “any other
class of workers engaged in foreign or interstate
commerce” after “seamen” and “railroad employees” as
covering only transportation workers).
Of course, Congress does not intend every
seemingly open-ended phrase to be read narrowly. See
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008)
48
(“[W]e do not woodenly apply limiting principles every
time Congress includes a specific example along with a
general phrase.”). From time to time, a broadly worded
statutory term is intended to be just that—broad. For
example, Congress sometimes inserts “technically
unnecessary” examples along with a general description
of those examples not because it intends the general term
to be narrow, but instead “out of an abundance of
caution” to ensure the general term will be interpreted as
capturing those examples. Fort Stewart Sch. v. Fed.
Labor Relations Auth., 495 U.S. 641, 646 (1990); see
also Circuit City Stores, Inc., 532 U.S. at 140 & n.4
(Souter, J., dissenting) (declining to apply ejusdem
generis where the statute indicates a “special reason for
emphasizing specific examples of a statutory class” that
“negate[s]” a narrow interpretation of the general term).
In addition, just as we “typically use ejusdem generis to
ensure that a general word will not render specific words
meaningless,” CSX Transp., Inc. v. Ala. Dep’t of
Revenue, 131 S. Ct. 1101, 1113 (2011), the opposite is
also true: general phrases cannot be so narrowly
construed that they become meaningless, see Christopher
v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2171
(2012) (citing United States v. Alpers, 338 U.S. 680, 682
(1950)).21 And finally, not every general or vague phrase
21
The EPA does not argue that our interpretation of “any
other appropriate relief” in § 7413(b) leaves that phrase
meaningless. In any event, without speculating too much
49
following an enumerated list is a catch-all. Some statutes
use a general phrase not as a residual category intended
to be a more general description of the preceding terms,
but instead use each of the terms, including the general
phrase, as independent and unrelated statutory categories.
See Ali, 552 U.S. at 226 (declining to apply ejusdem
generis to the “disjunctive” phrase “any officer of
customs or excise or any other law enforcement officer”);
Watt v. W. Nuclear, Inc., 462 U.S. 36, 44 n.5 (1983)
(declining to apply ejusdem generis to the phrase “coal
and other minerals”).
Yet sometimes a catch-all is just a catch-all. That
is true here. “Any other appropriate relief” follows “a list
of specific items separated by commas.” Ali, 552 U.S. at
225. As the word “other” demonstrates, this general
phrase is a residual category of the same type as the
preceding items (namely, kinds of relief). Id. The
on questions not before us, we can readily conceive of
injunctive relief for an ongoing violation that does not
either “restrain” that violation or “require compliance.”
For instance, an owner or operator with an ongoing
violation might be ordered not only to correct the
violation and bring its pollution into compliance with any
emission requirements, but also place it on a probationary
period requiring more stringent monitoring, submission
to regular inspections, or reporting all changes to its
facility to prevent future violations.
50
specific types of relief do not overlap or otherwise
suggest that they are mere examples of “any . . .
appropriate relief.” Consequently, any injunctive relief
available under this residual phrase must be limited to
ongoing violations, consistent with the specific forward-
looking injunctive remedies that precede it.The EPA
disagrees, insisting on a broad and flexible interpretation
of “any appropriate relief.” Wielding a separate canon of
interpretation, the EPA argues that remedial statutes like
the Clean Air Act must be interpreted broadly to
effectuate their remedial purposes. As an initial matter,
we doubt that such a broad interpretive rule can be
justified on its own terms. See Fla. Dep’t of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 51 (2008)
(rejecting this canon’s application to a statute that
Congress had more than a “single purpose” in enacting
(internal quotation marks and citation omitted)). As the
Supreme Court has consistently reminded courts, “no
legislation pursues its purposes at all costs.” Pension
Benefits Guar. Corp. v. LTV Corp., 496 U.S. 633, 646
(1990) (quoting Rodriguez, 480 U.S. at 525–26); see also
FTC v. Actavis, Inc., 133 S. Ct. 2223, 2242 (2013)
(Roberts, C.J., dissenting); Dolan v. United States, 130 S.
Ct. 2533, 2547 (2010) (Roberts, C.J., dissenting);
Woodford v. Ngo, 548 U.S. 81, 117 (2006) (Stevens, J.,
dissenting). That principle applies even to remedial
statutes (and what laws are not designed to remedy some
problem?). “[I]t frustrates rather than effectuates
legislative intent simplistically to assume that whatever
51
furthers the statute’s primary objective”—such as
remedying environmental harms—“must be the law.”
Rodriguez, 480 U.S. at 525–26.
But even if such an interpretive rule were a
justifiable one, it would not trump the textual clues to the
contrary. Not all interpretive rules are created equal.
Some are descriptively justified, establishing rules about
how Congress and the public use language as well as
“regularize[ing] the courts’ approach to some recurring
sources of ambiguity in English syntax.” Caleb Nelson,
Statutory Interpretation 82 (2011); see also Stephen F.
Ross, Where Have You Gone, Karl Llewellyn? Should
Congress Turn Its Lonely Eyes to You?, 45 Vand. L. Rev.
561, 563 (1992) (proposing this distinction); Cass R.
Sunstein, Interpreting Statutes in the Regulatory State,
103 Harv. L. Rev. 405, 454–60 (1989) (similar).
Examples of those language-based heuristics include the
presumptions that “words used in a statute are to be given
their ordinary meaning,” Burns v. Alcala, 420 U.S. 575,
581 (1975), that “identical words used in different parts
of the same statute” have the same meaning, IBP, Inc. v.
Alvarez, 546 U.S. 21, 34 (2005), that statutory text
should not be interpreted “in a way that makes part of it
redundant,” unnecessary, or meaningless, Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644,
669 (2007), that adjectives and other modifiers refer only
to the last antecedent, see Jama v. Immigration &
Customs Enforcement, 543 U.S. 335, 342–43 (2005),
52
and—most relevant here—that a general catch-all should
be interpreted in light of any preceding specific terms.
Others are normatively justified, designed to achieve
certain policy goals that courts have identified. Nelson,
Statutory Interpretation 82 (“[A]t least some of the
canons . . . put thumbs on the scale in favor of certain
substantive policies[,] . . . telling courts how to proceed
when their information about the enacting legislature’s
likely intent has run out.”). The most familiar example is
the rule of lenity. And the remaining canons are hybrids
whose scope can be fully explained only by a
combination of descriptive and normative justifications.
See Nelson, Statutory Interpretation, 138, 146
(cataloguing the various canons and offering the saving
canon and constitutional-avoidance doctrine as two
examples of hybrid canons).
Consistent with our focus on determining the
meaning of the text itself, we turn to our descriptive
canons first whenever we confront a statute we must
interpret. See id. at 228 (“[T]here is fairly widespread
agreement that so-called ‘descriptive’ canons occupy a
higher place in the interpretive hierarchy than so-called
‘normative’ canons.”); id. at 229 (“To the extent that a
single canon serves both ‘descriptive’ and ‘normative’
goals, moreover, courts should try to avoid letting the
canon’s normative aspirations swamp the descriptive
force of other canons.”). If our descriptive tools settle
the meaning, then our task is complete. In such a case,
53
we do not even consider interpretive tools partially or
purely based on normative goals. See, e.g., United States
v. Wells, 519 U.S. 482, 499 (1997) (“The rule of lenity
applies only if, after seizing everything from which aid
can be derived, . . . we can make no more than a guess as
to what Congress intended.” (internal quotation marks
and citations omitted)).
Such is the case here. Our descriptive tools of
interpretation clarify any vagueness in the phrase “any
other appropriate relief.” As we have explained, the
canon of ejusdem generis requires us to interpret this
catch-all as permitting forward-looking relief, consistent
with the preceding types of relief in the list. Allowing
the EPA’s remedial-purpose canon to trump ejusdem
generis would amount to little more than disguising a
purpose-driven interpretation as a canon. The PSD
program’s other enforcement provision confirms the
prospective nature of injunctive relief allowed. Section
7477 authorizes “injunctive relief[] as necessary to
prevent the construction or modification of [certain]
major emitting facilit[ies].” An injunction to remedy
modifications completed in the past without a PSD
permit cannot “prevent” the construction.
And even if the phrase “any other appropriate
relief” can include injunctions against former owners and
past violators, the requested injunctions in this case are
not “appropriate.” Whatever the breadth of that phrase, it
would not be “appropriate” for a district court to award
54
relief that is impossible to fulfill. Ordering the Former
Owners to install BACT on a plant they no longer own,
operate, or have access to is just the sort of impossible
relief that would not be “appropriate.” That is especially
so given that a “mandatory injunction . . . is an
extraordinary remedial process.” Morrison v. Work, 266
U.S. 481, 490 (1925) (Brandeis, J.); United States v.
Bigan, 274 F.2d 729, 733 (3d Cir. 1960) (same).
The EPA tries to cure this impropriety in two
ways. First, it proposes that the District Court enjoin the
Current Owners to cooperate with the Former Owners to
install BACT. Or, the EPA suggests, the District Court
can order the Former Owners to pay the Current Owners
for the cost of BACT and order the Current Owners to
install it.
Both of these proposals suffer from the same flaw.
As we have already held, the Current Owners cannot be
held liable for violating the PSD or BACT requirements.
If the Current Owners cannot be held liable, then the
District Court has no authority to enjoin them at all. See
Ciba-Geigy Corp. v. Bolar Pharm. Co., Inc., 747 F.2d
844, 850 (3d Cir. 1984) (holding that a plaintiff must first
establish a successful claim on the merits against a party
before being eligible to obtain injunctive relief against
that party). Without the cooperation of the Current
Owners, the Former Owners “would not be able to
comply with a court order directing [them] to install
pollution control measures, because [they] no longer
55
control[] the plant.” N.J. v. Reliant Energy Mid-Atlantic
Power Holdings, LLC, 2009 WL 3234438, at *17 (E.D.
Pa. 2009). Given these constraints on remedying the
Former Owners’ past alleged violations of the PSD
program and the EPA’s failure to allege “a continuing
violation or the likelihood of a future violation,”
injunctive relief against the Former Owners “will not
redress [the public’s] injury.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 109 (1998).
Second, the EPA proposes that the District Court
order the Former Owner to purchase and retire emissions
credits to offset pollution elsewhere in the nation. This
proposal fares no better. Such injunctive cap-and-trade
relief is the equivalent of awarding monetary relief and
“could not reasonably be characterized as an injunction.”
United States v. Midwest Generation, 781 F. Supp. 2d
677, 685 (N.D. Ill. 2011), aff’d on other grounds by 720
F.3d 644, 648; see In re Arthur Treacher’s Franchisee
Litig., 689 F.2d 1137, 1145 (3d Cir. 1982) (“[W]e have
never upheld an injunction where the claimed injury
constituted a loss of money, a loss capable of recoupment
in a proper action at law.”). It would amount to little
more than an end-run around the five-year statute of
limitations on “any civil fine, penalty, or forfeiture,
pecuniary or otherwise.” 28 U.S.C. § 2462.
In fact, the inspiration for this suggested relief
comes from Title IV of the Clean Air Act—a program
regulating acid rain and deposition and an entirely
56
different one than the Former Owners allegedly violated.
Had Congress intended to authorize an emissions-credit
marketplace for the PSD program (Title II) like the one
established for the sulfur dioxide allowance program
(Title IV), it would have done so. Since Congress
deliberately omitted such an allowance program from the
PSD program, we will not import it under the guise of
injunctive relief.
Indeed, when Congress has wanted to authorize
mandatory remedial injunctions in other environmental
statutes, it has done so expressly. See 42 U.S.C.
§ 9607(a)(2) (extending liability under CERCLA to “any
person who at the time of disposal of any hazardous
substances owned or operated any facility at which such
hazardous substances were disposed of”); 33 U.S.C.
§ 1321(b)(9) (broadly authorizing orders to “mitigate the
damage to the public health or welfare caused by [a]
discharge”). Congress chose not to extend such remedial
authority to the Clean Air Act.
Finally, and tellingly, the EPA concedes that in the
forty-plus years of the Clean Air Act, no court has ever
approved such an injunction against former owners. See
Oral Arg. Tr. at 16:19–21. We decline to be the first.
B. Title V Claims
In addition to its PSD claims, the EPA alleges that
the Current and Former Owners violated the Title V
57
operating-permit program. The Former Owners’ Title V
application was allegedly incomplete because it did not
include applicable PSD requirements or BACT controls.
And the Current Owners’ facially valid permit is
supposedly inadequate because it omits the same
requirements—even though the EPA approved the
application, issued the permit, and recently renewed the
permit without objection. The District Court dismissed
these claims on the merits, concluding that Title V does
not make incomplete applications and permits civilly
actionable. We agree with the District Court’s dismissal,
but for a more fundamental reason: the District Court
lacked jurisdiction over these claims.22 See In re Flat
Glass Antitrust Litig., 288 F.3d 83, 88 n.5 (3d Cir. 2002)
(explaining our “independent responsibility” to confirm
our appellate jurisdiction and the District Court’s
jurisdiction (quoting In re Ford Motor Co., 110 F.3d 954,
958–59 (3d Cir. 1997))).
As the Seventh, Eighth, and Ninth Circuits have
held, Title V channels challenges to applications and
permits into an administrative review process that is
reviewable exclusively by the courts of appeals, not
collaterally in civil or criminal enforcement actions in the
22
To the District Court’s credit, it “harbor[ed] substantial
subject-matter jurisdiction concerns as to its authority to
decide” the Title V claims for the same reasons we
express here.
58
district courts. Otter Tail Power Co., 615 F.3d at 1020;
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC,
548 F.3d 738, 742–43 (9th Cir. 2008); United States v.
AM Gen. Corp., 34 F.3d 472, 475 (7th Cir. 1994); see
also N.Y. Pub. Interest Research Grp., Inc. v. Johnson,
427 F.3d 172, 185 (2d Cir. 2005) (“[A]n enforcement
proceeding does not relieve the EPA of its obligations
under the permitting process.”). We begin with § 7661d,
which establishes a comprehensive system for the EPA’s
review of Title V applications and proposed permits.
“Congress entrusted state permitting authorities with
initial responsibility to make BACT determinations ‘case
by case.’” Alaska Dep’t of Envtl. Conservation, 540 U.S.
at 488 (quoting 42 U.S.C. § 7479(3)). Title V requires
these state permitting authorities to submit permit
applications and proposed permits to affected states and
the EPA for review. 42 U.S.C. § 7661d(a)(1). The
permitting authority must give the states an opportunity
to review the application or proposed permit and submit
written recommendations; if the authority declines to
adopt any state recommendation, it must notify that state
and the EPA and explain its reasoning. Id. As to the
EPA’s review, the Administrator has a duty to object to
“any permit [that] contains provisions” she determines to
be “not in compliance with” the Clean Air Act. Id.
§ 7661d(b)(1). If the Administrator objects, then the
permit may not be issued unless it is revised to meet the
objections. Id. §§ 7661d(b)(3), (c). And if the permitting
authority has already issued the permit, then the
59
Administrator must “modify, terminate, or revoke such
permit,” and the permitting authority may only issue a
permit revised to satisfy the objection. Id. If the EPA
does not object, then “any person may petition the
Administrator within 60 days after the expiration of the
45-day review period” to object on the public’s behalf.
Id. § 7661d(b)(2). The Administrator must then grant or
deny the petition within 60 days. Id. “Any denial of
such petition shall be subject to judicial review under” 42
U.S.C. § 7607. Id.Section 7607(b)(1), in turn, authorizes direct
review of the Administrator’s decision in the courts of
appeals. Id. § 7607(b)(1) (“A petition for review of . . .
any other final action of the Administrator under [the
Clean Air Act] (including any denial or disapproval by
the Administrator under [Title V]) . . . may be filed only
in the United States Court of Appeals for the appropriate
circuit . . . .”); Otter Tail Power Co., 615 F.3d at 1020;
Romoland, 548 F.3d at 743. Such review may take place
only in the court of appeals—subsection (b)(2) divests
the district courts of jurisdiction over the Administrator’s
decision. 42 U.S.C. § 7607(b)(2) (“Action of the
Administrator with respect to which review could have
been obtained under paragraph (1) shall not be subject to
judicial review in civil or criminal proceedings for
enforcement.”). Consequently, Congress created a “use
it or lose it” provision for reviewing the EPA’s failure to
object to a proposed Title V permit. Romoland, 548 F.3d
60at 755. If review of the Administrator’s decision not to
object to a Title V application or permit “could have been
obtained” through this process, then that challenge
cannot be brought in an enforcement proceeding.
Here, the EPA claims that the Current Owners’
Title V permit, though facially valid, is missing
applicable PSD requirements and BACT controls. And
the EPA (but not the States) claims that the Former
Owners’ Title V application was incomplete because it
omitted those same requirements. But each of these
claims “amounts to an allegation that the permit ‘is not in
compliance with the requirements of’” the Clean Air Act,
“claim[s] which could have been pressed during the
permitting process.” Otter Tail Power Co., 615 F.3d at
1020. If the EPA Administrator believed the application
or permit was deficient, Title V required her to object
during the permitting process. 42 U.S.C. § 7661d(b)(1).
Yet twice she chose not to—either during the original
permitting process from 1995 to 2004 or again when the
Current Owners’ permit was renewed in 2012. And
those failures to object “could have been” directly
reviewed in this Court through the exclusive process
established by Title V. Consequently, § 7607(b)(2)
divests the District Court of jurisdiction over the EPA’s
collateral challenges to the Former Owners’ application
61
and the Current Owners’ permit.23
The EPA musters three cases that purportedly
support such collateral challenges in enforcement
proceedings. U.S. Opening Br. at 57; see Sierra Club v.
EPA (Sierra Club 6th Cir.), 557 F.3d 401, 405–11 (6th
Cir. 2009); Citizens Against Ruining the Env’t v. EPA,
535 F.3d 670, 678 (7th Cir. 2008); Sierra Club 11th Cir.,
541 F.3dat 1267. But those cases say no such thing.
None of them addresses § 7607’s jurisdiction-stripping
provision or even whether a district court has jurisdiction
over collateral challenges to Title V permits and
applications in enforcement actions. They instead
interpret one of the statutory triggers for the EPA
Administrator’s duty to object to a Title V application or
permit during the administrative review process: whether
a private petitioner has sufficiently “demonstrated” that
the application or permit does not comply with the Clean
Air Act such that the Administrator must object. See 42
U.S.C. § 7661d(b)(2). In fact, in each of these cases, the
party seeking review of the Administrator’s failure to
object did so by petitioning for direct review in the court
23
Given § 7607(b)(2)’s unambiguous elimination of the
District Court’s jurisdiction in this case, we do not defer
to the EPA’s contrary interpretation. See Hagans v.
Comm’r of Soc. Sec., 694 F.3d 287, 295 (3d Cir. 2012)
(“[W]e need reach the deference question only if we find
the statutory language is ambiguous.”).
62
of appeals—consistent with our interpretation of § 7607.
See Sierra Club 11th Cir., 541 F.3d at 1263; Citizens
Against Ruining the Env’t, 535 F.3d at 674; Sierra Club
6th Cir., 557 F.3d at 405.
The elimination of district-court jurisdiction over
collateral challenges to Title V permits and applications
is further confirmed by Congress’s omission of any civil
cause of action for submitting incomplete applications or
operating under a validly issued but incomplete permit.
The EPA has authority to bring a civil enforcement
action against a person who, among other things, “has
violated, or is in violation of, any other requirement or
prohibition of [various subchapters, including Title V].”
42 U.S.C. § 7413(b)(2). The plain text of Title V, in
turn, lists only two ways in which it can be violated:
operating without a Title V permit or violating the terms
of a Title V permit while operating a source. See id.§ 7661a(a) (making it “unlawful for any person to violate
any requirement of a permit issued under this subchapter,
or to operate [a source] except in compliance with a
permit issued by a permitting authority under this
subchapter”).
What that text does not include as a violation,
however, is operating in accordance with a facially valid
but inadequate Title V permit. As the Seventh Circuit
has explained, there is simply no “indication that
Congress expressly or by implication meant to authorize
the EPA” to bring an enforcement action against current
63
owners, who have “been operating under a permit valid
on its face and never before challenged.” AM Gen.
Corp., 34 F.3d at 475; see also United States v. Cemex,
Inc., 864 F. Supp. 2d 1040, 1050 (D. Colo. 2012) (“The
Court sees no possible interpretation of this language that
would permit a cause of action for the failure to obtain a
‘proper’ operating permit.”). To be sure, as the EPA
points out, Title V requires permits to include
“enforceable emission limitations . . . and other such
conditions as are necessary to assure compliance with
applicable requirements of [the Clean Air Act].” 42
U.S.C. § 7661c(a). But just because the statute requires
complete permits does not mean that incomplete permits
are actionable in an enforcement action. Indeed,
§ 7661a(a)’s failure to make it unlawful to transgress this
complete-permit requirement requires us to conclude that
such conduct is not a civilly enforceable “violation” of
Title V. See Sebelius v. Cloer, 133 S. Ct. 1886, 1894
(2013) (“Where Congress includes particular language in
one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” (internal quotation marks and citation
omitted)).
Nor does Title V make submitting an incomplete
permit application unlawful. The plain text of § 7661a(a)
does not list “submitting incomplete permit applications”
as a violation of Title V. Of course, as the EPA points
64
out, Title V requires a permit application to include a
“compliance plan describing how the source will comply
with all applicable requirements [in the Clean Air Act].”
42 U.S.C. § 7661b(b)(1). Again, the fact that Congress
chose to include this complete-application requirement
but did not include the failure to satisfy that requirement
as a violation of Title V must be presumed deliberate. In
short, Congress’s decision not to authorize district-court
actions for incomplete applications or validly issued but
inadequate permits makes it unsurprising that § 7607
divests the district courts of jurisdiction over such
collateral challenges. The thoroughness of the
administrative review process—combined with the
mandatory denial of applications and proposed permits as
well as the mandatory revocation of prematurely issued,
non-compliant permits—indicates Congress’s
contemplation that deficiencies in Title V applications
and proposed permits would come to light and be
corrected through this administrative process.
On the other hand, consider the problems that
would arise if applications and permits could be
challenged in an enforcement proceeding. The EPA
could bring parallel suits—an enforcement proceeding in
the district court to challenge the Title V permit and
direct review by the court of appeals to challenge the
Administrator’s failure to object during the
administrative process. Such “simultaneous suits by
multiple parties raising the same or similar issues” would
65
“not only waste judicial resources, but could also result
in inconsistent decisions.” Otter Tail Power Co., 615
F.3d at 1022; Romoland, 548 F.3d at 755. More
importantly, “allow[ing] plaintiffs to raise issues resolved
during the permitting process long after that process is
complete would upset the reasonable expectations of
facility operators and undermine the significant
investment of regulatory resources made by state
permitting agencies.” Otter Tail Power Co., 615 F.3d at
1022. Nor does this exclusive review process prevent the
EPA from correcting deficiencies in a permit application
or from fixing an inadequate Title V permit. If the
application or proposed permit is deficient, the EPA must
deny it or require supplemental information during the
permitting process. See 42 U.S.C. § 7661d(b)(1). And
the threat of criminal charges confronts any person who
knowingly submits a deficient application. 42 U.S.C.
§ 7413(c)(2)(A). Even if the deficiencies are overlooked
and remain undiscovered until after the permit is
issued—as they allegedly were in this case—the proper
avenue is for the EPA or states to reopen the permit to
add any “applicable requirement” that was omitted
during the permitting process. 40 C.F.R. § 70.7(f); see
also 42 U.S.C. § 7661d(e); 25 Pa. Code §§ 127.542,
127.543.
Consequently, the District Court lacked
66
jurisdiction over the EPA’s Title V claims.24
C. State-Law Claims
The Pennsylvania Department of Environmental
Protection and New York also appeal the dismissal of
various state-law claims under the Pennsylvania Air
Pollution and Control Act, Pennsylvania SIP, and
common-law public nuisance. They concede that these
claims track the federal claims. See Dist. Ct. Op., JA36;
States Br. at 67. And to the extent the state-law claims
differ from the federal ones, the District Court found that
“[t]hese claims were not thoroughly developed.” Id. We
24
The EPA spars with the Current Owners over whether
the Current Owners are insulated from liability by Title
V’s safe-harbor provision. Title V contains two permit
shields—one that precludes Title V liability if an owner
or operator “compli[es] with a permit issued in
accordance with” Title V, and a second that insulates an
owner or operator from liability for violating “other
applicable provisions” of the Clean Air Act if it complies
with a Title V permit that either expressly includes those
provisions or states that they are inapplicable. 42 U.S.C.
§ 7661c(f). But these permit shields are merely
sideshows. Even assuming the EPA is correct that
neither permit shield protects the Current Owners, the
availability of this defense has no bearing on whether
§ 7607 strips district courts of jurisdiction over collateral
challenges to Title V permits.
67
will affirm their dismissal. See Steagald v. United States,
451 U.S. 204, 209 (1981) (holding that arguments not
developed in district court are forfeited on appeal); In re
Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d
Cir. 2009) (“A fleeting reference or vague allusion to an
issue will not suffice to preserve it for appeal[.]”).
III.
In an age when coal-burning power plants mingle
with electric cars and when our scientific understanding
of the planet grows at the same exponential rate that our
natural resources deteriorate, protecting the environment
is an almost-fearsome responsibility. But when
Congress’s statutory directives are at issue, that
responsibility must yield to our duty to follow our
coordinate branch’s commands. Those commands could
not be plainer here. We will affirm the District Court’s
order dismissing the EPA’s and States’ claims.
68