In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 12-3388

CLEAN WATER ACTION COUNCIL OF NORTHEASTERN 

WISCONSIN, INC., et al.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

____________________

Petition for Review of an Order of the

Environmental Protection Agency

____________________

ARGUED SEPTEMBER 23, 2013 — DECIDED AUGUST 29, 2014

____________________

Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.

EASTERBROOK, Circuit Judge. The Clean Air Act, 42 U.S.C. 

§§ 7401–7671q, invites each state to craft a plan (a “state implementation plan”) to control the levels of certain air pollutants. Most state plans include “Prevention of Significant Deterioration” (PSD) programs. These programs are designed 

to prevent backsliding in “attainment areas” (regions that 

meet or exceed the Act’s air quality standards), while still 
2 No. 12-3388

allowing some new sources of pollution. A PSD program 

prevents designated sources from propelling the region’s 

aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and then a cap on pollutants above that baseline. The space between the baseline 

and the cap is the “increment”. In the jargon of the regulations, new sources that create a net increase in emissions 

“consume increment”. To simplify matters, we refer to the 

increment as the state’s pollutant allowance. The Act grandfathers sources operational before 1975: the baseline incorporates 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. Permits implementing Title V specify pollution-control obligations for each source. The statute allows states to administer 

certain aspects of the air-pollution-control regime—

including Title V permits—subject to federal review.

In 2002 Georgia-Pacific asked Wisconsin to renew the Title V permit for its pre-1975 paper mill. While Wisconsin 

weighed that application, Georgia-Pacific modified a paper 

machine at the plant. The application for a permit authorizing this modification was unopposed, and the permit issued 

in February 2004. In 2011 Wisconsin reissued the whole 

plant’s operating permit. Clean Water Action Council asked 

EPA to reject the state’s decision, arguing that Wisconsin’s 

regulations (and their application to Georgia-Pacific) incorrectly implemented the Act. The Council believes that modifications to any part of a plant, such as the one GeorgiaPacific made in 2004, require all emissions from the plant—

including pre-1975 emissions incorporated into the base-
No. 12-3388 3

line—to count against the state’s allowance. If that’s so, the 

whole plant might need to close for lack of available allowance. But EPA declined to object, see In re Georgia Pacific 

Consumer Products LP Plant, 2012 EPA CAA Title V LEXIS 7 

(July 23, 2012), concluding that Wisconsin’s approach is consonant with the agency’s understanding of the statute: Modifications 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 concluded. 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 necessarily challenges the regulations (75 Fed. Reg. 64,864 (Oct. 

20, 2010)) that say which permits may be renewed. Section 

7607(b) requires that challenges to “nationally applicable 

regulations” be brought before the D.C. Circuit, while challenges to actions that are “locally or regionally applicable 

may be filed only in the United States Court of Appeals for 

the appropriate circuit”. The statute also requires that both 

kinds of challenge begin within 60 days of a regulation’s 

publication. EPA contends that this court lacks jurisdiction 

because the Council brought the challenge belatedly and in 

the wrong circuit. Opinions from the Tenth and D.C. Circuits 

support the agency’s stance. See Utah v. EPA, 750 F.3d 1182, 

1184 (10th Cir. 2014); Oklahoma Department of Environmental 

Quality v. EPA, 740 F.3d 185, 191 (D.C. Cir. 2014); Medical 

Waste Institute v. EPA, 645 F.3d 420, 427 (D.C. Cir. 2011); Motor & Equipment Manufacturers Association v. EPA, 142 F.3d 

449, 460 (D.C. Cir. 1998); Edison Electric Institute v. EPA, 996

F.2d 326, 331 (D.C. Cir. 1993); Natural Resources Defense 

Council v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981).
4 No. 12-3388

We conclude, to the contrary, that the venue and filing 

provisions of §7607(b) are not jurisdictional. The EPA disregards the Supreme Court’s many opinions discussing the 

difference between jurisdictional and claim-processing rules. 

See, e.g., Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 

817, 824–26 (2013); Henderson v. Shinseki, 131 S. Ct. 1197, 

1202–06 (2011); Reed-Elsevier, Inc. v. Muchnick, 559 U.S. 154, 

160–66 (2010). See also Webster v. Caraway, No. 14-1049 (7th 

Cir. Aug. 1, 2014), slip op. 7–11. Venue rules have long been 

understood as non-jurisdictional. See Leroy v. Great Western 

United Corp., 443 U.S. 173, 180 (1979). The Supreme Court 

also has held that most filing deadlines are statutes of limitations or claim-processing rules. See Auburn, 133 S. Ct. at 824–

25 (listing cases); Henderson, 131 S. Ct. at 1203 (“Filing deadlines, such as the 120-day filing deadline at issue here, are 

quintessential claim-processing rules.”); Arbaugh v. Y & H 

Corp., 546 U.S. 500, 510–16 (2006); Eberhart v. United States, 

546 U.S. 12 (2005); Kontrick v. Ryan, 540 U.S. 443, 452–56 

(2004). While there is an exception when it comes to appeals 

from district courts, see Bowles v. Russell, 551 U.S. 205, 212–13 

(2007) (interpreting 28 U.S.C. §2107), the Court has rejected 

arguments that other filing deadlines are jurisdictional. Henderson, 131 S. Ct. at 1203. Instead, “[t]he Court’s recent cases 

require a ‘clear statement’ or ‘clear indication’ from Congress before a statute prescribing a precondition to bringing 

suit will be construed as jurisdictional.” Miller v. FDIC, 738 

F.3d 836, 844 (7th Cir. 2013).

Neither EPA nor Georgia-Pacific points to such a statement; we couldn’t find one. The circuit-level decisions we 

have cited do not do so either. Utah v. EPA does not give a 

reason; it cites Oklahoma Department of Environmental Quality

as authoritative. Oklahoma Department of Environmental Quali-
No. 12-3388 5

ty does not give a reason; it cites Medical Waste Institute as 

authoritative. Medical Waste Institute does not give a reason; 

it cites Motor & Equipment Manufacturers Association as authoritative. And so the chain of citations goes, until we reach 

Natural Resources Defense Council—which does give a reason 

(in addition to citing five more decisions, dating to 1974). 

When addressing the Hobbs Act, 28 U.S.C. §2344, the court 

tells us that a

time limit [for initiating a contest to a regulation], like other similar limitations, serves the important purpose of imparting finality into the administrative process, thereby conserving administrative resources and protecting the reliance interests of regulatees who conform their conduct to the regulations. These policies would be frustrated if untimely procedural challenges could 

be revived by simply filing a petition for rulemaking requesting 

rescission of the regulations and then seeking direct review of 

the petition’s denial.

666 F.2d at 602 (footnote omitted). This is exactly the sort of 

thing that the Supreme Court has held does not mark a rule 

as jurisdictional. NRDC tells us why the Hobbs Act and similar laws, such as §7607(b), contain time limits, not why filing 

deadlines are jurisdictional. The law is full of time limits, 

which serve valuable functions, but they are enforced when 

their beneficiaries bring them to the court’s attention and 

stand on their rights; there is no need to declare them “jurisdictional,” which means that they must be considered ahead 

of all other issues, even if all litigants forfeit, or even waive, 

their benefits. Any contention along the lines of “time limits 

are beneficial, so they must be jurisdictional” did not survive

Kontrick and its successors, such as Henderson and Auburn.

Congress could have framed the filing and venue rules in 

jurisdictional terms, but it did not. Section 7607(b) does not 
6 No. 12-3388

mention jurisdiction. Auburn, 133 S. Ct. at 824–25; Henderson, 

131 S. Ct. at 1204–05; Miller, 738 F.3d at 844–45; Webster, slip 

op. 7–8. Nor does §7607(b) use language that is traditionally 

understood as jurisdictional. And the Supreme Court has not 

indicated that the §7607 filing deadline is jurisdictional. That 

the Council did not bring its claim within 60 days of the regulation’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 requested a hearing en banc.

The 60-day limit remains a binding rule, however, as 

does the venue requirement—and EPA has invoked the benefit of each. But although jurisdiction must be resolved 

ahead of other issues, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), there is no necessary priority 

among non-jurisdictional issues. The EPA’s contention that 

this challenge to a permit (and to one state’s regulation) is 

“really” or “necessarily” a contest to a nationally applicable 

federal regulation would take the court into difficult ground. 

Cf. Environmental Defense v. Duke Energy Corp., 549 U.S. 561 

(2007). And for no good reason; the meaning of the statute is 

more important than what the Council’s argument implies 

about some regulation. Because the EPA’s decision can be 

sustained without deciding whether the Council’s contentions necessarily undercut a federal regulation, we start (and 

end) with a discussion of the statute.
No. 12-3388 7

The language that matters is in 42 U.S.C. §7479(4):

[1] The term “baseline concentration” means, with respect to a 

pollutant, the ambient concentration levels which exist at the 

time of the first application for a permit in an area subject to this 

part ... . [2] Such ambient concentration levels shall take into account all projected emissions in, or which may affect, such area 

from any major emitting facility on which construction commenced prior to January 6, 1975, but which has not begun operation by the date of the baseline air quality concentration determination. [3] Emissions of sulfur oxides and particulate matter 

from any major emitting facility on which construction commenced after January 6, 1975, shall not be included in the baseline and shall be counted against the maximum allowable increases in pollutant concentrations established under this part.

We have added the numbers in brackets to facilitate parsing 

the statute.

The Council argues that §7479(4) is clear. According to it, 

the third sentence means that the 2004 modifications require 

reallocating the entire plant’s emissions toward Wisconsin’s 

pollutant allowance. Section 7479(2)(C) tells us that “construction” includes modifications, and the Council sees in 

sentence 3 a rule that to modify one machine is to modify the 

whole plant. If the plant has been modified, it is a new 

source that can operate only if enough new allowance is 

available. EPA, on the other hand, reads sentences 2 and 3 

together to mean that the pre-1975 emissions remain as part 

of the baseline, while any new emissions attributable to the 

2004 modifications are counted toward the pollutant allowance. The statute does not explicitly address the treatment of 

emissions from a plant, only one part of which has been 

modified (and thus is treated as a new source). EPA concludes that the statute is ambiguous and the doctrine announced in Chevron calls for courts to respect the agency’s 
8 No. 12-3388

interpretation. See Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Council concedes 

that, if the EPA is right on the law, or if Chevron applies, then 

Georgia-Pacific is entitled to its permit.

The statute is not as clear as the Council believes it to be. 

Two things are plain: (1) Emissions from pre-1975 sources, 

up to the 1975 level, count as part of the baseline and not 

toward the overall emissions allowances (sentences 1 and 2); 

(2) Emissions from post-1975 modifications to pre-1975 

sources (in this case, the modified paper machine) count

against a state’s pollutant allowance (sentence 3). But the 

statute does not tell us what happens to the pre-1975 plant 

and its other machines, or whether a modification changes 

the relation between the baseline and the new allowance. 

Sentence 3 could be read to mean that modifications to pre1975 sources require counting emissions previously included 

in the baseline against the state’s allowance. But this is an 

interpretation, not the only interpretation. It is no less reasonable to read sentence 3 as counting only the marginal 

emissions from modifications to pre-1975 sources. Pre-1975 

emissions remain in the baseline while emissions from post1975 construction count toward a state’s pollutant allowance. This is the interpretation that EPA has adopted. See 43 

Fed. Reg. 26,388 at 26,400–01 (June 19, 1978); 75 Fed. Reg. 

64,864 at 64,869 (Oct. 20, 2010). And “an agency’s reasonable 

interpretation of ambiguous statutory language” carries the 

day. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 

1603 (2014).

EPA’s is a sensible interpretation as well. The Council’s 

approach could produce two undesirable outcomes. Under 

one understanding of the Council’s view, the 1975 baseline 
No. 12-3388 9

would keep changing as old plants become “new.” Every 

time a company modified a pre-1975 plant, all of the emissions 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 allowance, other businesses could find themselves with no allowance to draw on. The other understanding of the Council’s view involves double counting a “new” source’s emissions. Rather than moving all the pre-1975 emissions from

the baseline, a modification could cause the pre-1975 emission to count against the state’s allowance and remain in the 

baseline. While this sounds strange, it is consistent with the 

Council’s position. Under either interpretation companies

(and state regulators) would be inclined to reject physical or 

operational changes to pollution sources, even if those 

changes reduced pollution, lest all pre-1975 emissions count

against the state’s allowance. The EPA’s approach avoids 

that result.

EPA presents a reasonable interpretation of an ambiguous statutory provision. The petition for review is

DENIED.