### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 12

- 3388
C LEAN W ATER A CTION C OUNCIL OF N ORTHEASTERN W ISCONSIN , I NC ., et al. , Petitioners ,

v.
U NITED S TATES E NVIRONMENTAL P ROTECTION A GENCY , et al. , Respondents

.

____________________
Petition for Review of an Order of the

Environmental Protection Agency

____________________
A RGUED S EPTEMBER 23, 2013

— D ECIDED A UGUST 29, 2014

____________________

Before E ASTERBROOK , S YKES , and T INDER , Circuit Judges

. E ASTERBROOK , Circuit Judge

. The Clean Air Act, 42 U.S.C. §§ 7401

– 7671q, invites each state to craft a plan (a “state i mplementation plan”) to control the levels of certain air poll utants. Most state plans include “Prevention of Significant D eterioration” (PSD) programs . These programs are designed to prevent backsliding in “attainment areas” (regions that meet or exceed the Act’s air quality standards), while still2 No. 12

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allowing some new sources of pollution . A PSD program prevents designated sources from propel ling the regi on’s aggregate emissions over specified limits. The Act establis hes these limits by setting a baseline and then a cap on poll utants above that baseline. The space between the baseline and the cap is the “increment”. In the jargon of the regul ations, new so urces that create a net increase in emis sions “consume increment”. To simplify matters, we refer to the increment as the state’s pollutant allowance. The Act gran dfathers sources operational before 1975: the baseline incorp orates 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. P e rmits implementing Title V specify pollu tion

- control oblig ations for e ach source. The statute allows states to admini ster certain aspects of the air

- pollution

- control regime

— includ ing Title V permits

— subject to federal review. In 2002 Georgia

- Pacific asked Wisconsin to renew the T itle V permit for its pre

- 1975 paper mill. W h ile Wisconsin weighed that application, Georgia

- Pacific modified a paper machine at the plant. The application for a permit authori zing this modification was unopposed , and the permit issued in February 2004. In 2011 Wisconsin reissued the whole plant’s op erating permit. Clean Water Action Council asked EPA to reject the state’s decision , arguing that Wisconsin’s regulations (and their application to Georgia

- Pacific) inco rrectly implemented the Act. The Council believes that mod ifications to any part of a p lant, such as the one Georgia

Pacific made in 2004, require all emissions from the plant

— including pre

- 1975 emissions incorporated into the bas e-No. 12

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line

— to coun t against the state’s allowance . If that’s so, the wh ole plant might need to close for lack of avail able allo wance

. But EPA declined to object, see In re Georgia Pacific Consumer Products LP Plant , 2012 EPA CAA Title V L EXIS 7 (July 23, 2012), concluding that Wiscon sin’s approach is co nsonant with the agency’s understanding of the statute: Mod ifications 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 co ncluded . 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 ne cessarily challenges the regulations (75 Fed. Reg. 64,864 (Oct. 20, 2010)) that say which permits may be renewed . Section 7607(b) requires t hat challenges to “nationally applicable regulations” be brought before the D.C. Circuit, while cha llenges to actions that are “locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit”. The statu te also requir es 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); M otor & 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

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We conclude, to the contr ary, that the venu e and filing provisions of §7607 (b) are not jurisdictional. The EPA disr egards the Supreme Court ’s many opinions discussing the difference b etween jurisdictional and claim

- processing rules. See, e.g., Sebelius v. Auburn Regional Medical C enter , 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 lo ng been understood as non

- jurisdictional. See Leroy v. Great Western United Corp ., 443 U.S. 173, 180 (1979) . The Su preme Court also has held that most filing deadlines are statutes of limi t ations or claim

- processing rules. See Auburn , 133 S. Ct. at 824

– 25 (listing cases); Henderson , 131 S. Ct. at 1203 (“Filing dea dlines, 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 exceptio n when it comes to appeals from district court s , 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. He nderson , 131 S. Ct. at 1203 . Instead, “[t]he Court’s recent cases require a ‘clear statement’ or ‘clear indication’ from Co ngress be fore a statute prescribing a precondition to bringing suit will be construed as juri sdictional.” Miller v. FDIC , 738 F.3d 836, 844 (7th Cir. 2013). Neither EPA nor Georgia

- Pacific points to such a stat ement; 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 Ok lahoma Department of Environmental Quality as authoritative. Oklahoma Department of Environmental Qual i-No. 12

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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 a uthoritative. And so the chain of citations goes, until we reach Natural R esources 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 sim ilar limitations, serves the important purpose of imparting final ity into the administrative process, thereby con serving admini strative resources and protecting the reliance interests of reg ulatees who conform their conduct to the regulations. These pol icies would be frustrated if untimely procedural challenges could be revived by simply filing a petition for rulemak ing requesting rescission of the regulations and then seekin g direct review of the petition’ s denial

. 666 F.2d at 602 (footnote omitted). This is exactly the sort of thin g that the Supreme Court has held does not mark a rule as jurisdictional. NRDC tells u s why the Hobbs Act and sim ilar laws, such as §7607(b) , con tain time limit s, not why filing deadlines are jurisdictional. The law is full of time limits, which serve valua ble 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 “juri sdictional,” which means that they must be considered ahead of all other issues, even if all litigants forfeit, or even waive, their benefi ts. 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 not6 No. 12

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m ention 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 indicat ed that the §7607 filing deadline is jurisdictional . That the Council did not bring its claim within 60 days of the re gulation’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 r equested a hearing e n banc.
The 60

- day limit remains a binding rule, however, as does the venue requirement

— and EPA has invoked the be nefit of ea ch. But although jurisdiction must be resolved ahead of other issues, see Steel Co. v. Citizens for a Better Env ironment , 523 U.S. 83 (1998), there is no necessary priority among non

- jurisdictional issues

. The EPA’s conten tion 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 dec ision can be sustained without deciding whether the Council’s conte ntions necessarily undercut a federal regulation, we start (and end) with a discussion of the statute.No. 12

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The language that m atters 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 a ccount all projecte d emissions in, or which may affect, such area from any major emitting facility on which construction co mmenced prior to January 6, 1975, but which has not begun oper ation by the date of the baseline air quality concentration dete rmination. [3] Emissions o f sulfur oxides and particulate matter from any major emitting facility on which construction co mmenced after January 6, 1975, shall not be included in the bas eline and shall be counted against the maximum allowable i ncreases in pollutant concentrations es tablished under this part. We have added the numbers in brac kets to facilitate parsing the statute

. The Council argues that §7479(4) is clear. Accor ding to it, the third sentence means that the 2004 modifications require reallocating the enti re plant’s emi ssions toward Wisconsin’s pollutant allowance. Section 7479(2)(C) tells us that “co nstruction” includes modifica tions, 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 base line, while any new emissions attributable to the 2004 modifications are counted toward the pollutant allo wance. The statute does not explicitly address the treatment of emis sions from a plant , only one part of which has been modified (and thus is treated as a new source) . EPA co ncludes that the stat ute is ambigu ous and the doc trine a nnounced in Chevron calls for courts to respect the agency’s8 No. 12

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interpretation. See Chevron USA Inc. v. Natural Re sources D efense 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
to w ard 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 w hat 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 previous ly included in the baseline against the state’s allowance. But this is an interpretation, not the only interpretation. It is no less re asonable to read sentence 3 as counting only the marginal emissions from modifications to pre

- 1975 sources . Pre

- 1975 emis sions remain in the baseline while emissions from post

1975 construc tion count toward a state’s pollutant allo wance. 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 stat utory 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 t wo undesirable outcomes. Under one understanding of the Council’s view, the 1975 baselineNo. 12

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would keep changing as old plants become “new.” Every time a company modified a pre

- 1975 plant, all of the emi ssions 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 a llowance, other businesses could find themselves with no a llowance to draw on. The other understanding of the Cou ncil’s view involves double counting a “new” source’s emi ssions. Rather than moving all the pre

- 1975 emiss ions from the baseline, a modification could cause the pre

- 1975 emi ssion to count against the state’s allow ance and re main 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 chang es 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 ambig uous statutory provision. The petition for review is

DENIED

.