United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed December 9, 2005

No. 02-1387

STATE OF NEW YORK, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

NSR MANUFACTURERS ROUNDTABLE, ET AL.,

INTERVENORS

Consolidated with

03-1016, 03-1033, 03-1036, 03-1040, 03-1041, 03-1044,

03-1045, 03-1046, 03-1047, 03-1048, 03-1049, 03-1050,

03-1051, 03-1052, 03-1054, 03-1055, 03-1056, 03-1057,

03-1104, 03-1130, 03-1131, 03-1135, 03-1175, 03-1176,

03-1177, 03-1178, 03-1437, 03-1448, 03-1457

On Petitions for Rehearing 

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,

Senior Circuit Judge.
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O R D E R

Upon consideration of the petition of the Utility Air

Regulatory Group (“UARG”) for rehearing filed August 8,

2005; the petitions of the Clean Air Implementation Project

(“CAIP”) and the Environmental Protection Agency (“EPA”) for

rehearing filed August 8, 2005, and the responses thereto; and

the motion of the State of North Dakota for leave to file a

response to the petitions of CAIP and EPA, and the lodged

response, it is

ORDERED that the motion for leave to file be denied. The

Clerk is directed to return to the State of North Dakota the

lodged response. It is

FURTHER ORDERED that UARG’s petition be denied.

It is

FURTHER ORDERED that CAIP’s and EPA’s petitions

be denied. With respect to EPA’s “Clean Units” rule, see the

opinion attached to this order filed by Senior Circuit Judge

Williams.* It is

FURTHER ORDERED that EPA’s request for

clarification as to any retroactive effect of the ruling on

Pollution Control Project provision be denied. Because no

specific retroactive application of this provision is before the

court, it would be premature to rule on this request. 

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

 BY: 
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Michael C. McGrail 

Deputy Clerk

* With respect to the “Clean Units” rule, Circuit Judges Rogers

and Tatel vote to deny the petitions for rehearing substantially

for the reasons stated in the attached opinion. 
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WILLIAMS, Senior Circuit Judge, concurring in the denial

of rehearing (with respect to EPA’s “Clean Unit” rule).

In petitioning for rehearing, EPA for the first time calls our

attention to a 1976 regulation manifesting EPA’s definition of

“modification” for purposes of its New Source Performance

Standards (“NSPS”). As the New Source Review provisions

adopted in 1977 and at issue here define “modification” simply

by cross-referencing the statutory NSPS definition, the 1976

regulation may cast light on what concept of modification

Congress meant for its New Source Review provisions. In fact

the 1976 regulation defines a “major modification” as

“includ[ing] a modification to any structure, building, facility,

installation or operation (or combination thereof) which

increases the allowable emission rate by the amounts set forth

above.” Requirements for Preparation, Adaptation, and

Submittal of Implementation Plans, 41 Fed. Reg. 55,524,

55,528/1 (Dec. 21, 1976) (emphasis added). At first blush this

appears inconsistent with our holding that the 1977 amendments

required a comparison of actual (or projected actual) emissions

before and after the change in question. New York v. EPA, 413

F.3d 3, 38-40 (D.C. Cir. 2005). 

An introductory issue is whether we may properly reach the

argument. In Kamen v. Kemper Financial Services, 500 U.S. 90

(1991), the Supreme Court ruled that while courts generally

should not entertain an “issue or claim” raised for the first time

in a reply brief, they were not limited to “particular legal

theories” advanced by the parties, but retained “independent

power to identify and apply the proper construction of governing

law.” Id. at 99. Presumably it is for this reason that we feel free

to rely on case authority not mentioned by any of the parties.

Cf. Independent Ins. Agents of Am. v. Clarke, 955 F.2d 731,

742-43 (D.C. Cir. 1992) (Silberman, J., dissenting), rev’d sub

nom., United States Nat'l Bank v. Independent Ins. Agents of
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Am., 508 U.S. 439 (1993). As the parties clearly set forth their

competing interpretations of the statute (the “issue or claim”),

inferences from a regulation existing at the time of enactment

seem to be merely a “particular legal theor[y].” Disregard of the

regulation could cause us to misconstrue a statute, to adopt not

a “proper” but an improper construction. Accordingly, I think

it proper to consider the regulation newly called to our attention.

EPA and Industry argue that the 1976 regulation’s

classification of a change that “increases the allowable emission

rate” as a “modification” establishes that Congress intended to

grant EPA authority to use such a criterion, rather than using

only changes in actual emissions, as we originally held. But the

inference is extremely weak. First, the regulation interpreted by

the 1976 ruling, Review of New Sources and Modifications, 40

CFR § 51.18 (1976), differed radically from § 111(a)(4). As

then worded, 40 CFR § 51.18 required State Implementation

Plans to call for preconstruction review of new sources or

modifications that would “result in violations of applicable

portions of the control strategy or . . . interfere with” the

attainment or maintenance of NAAQS. Thus the language being

interpreted itself included a direct focus on concepts broader

than “actual” emissions. In the adoption of § 111(a)(4) as the

governing standard, then, Congress was evidently superseding

rather than codifying the prior regime. See New York State v.

EPA, 413 F.3d at 12, 19-20; see also Alabama Power Co. v.

Costle, 636 F.2d 323, 349 (D.C. Cir. 1979). 

Second, as environmental petitioners note, the 1976

regulation was adopted only provisionally. See Pub. L. 95-95,

§ 129(a)(1), 91 Stat. 745 (“Before July 1, 1979, the interpretive

regulation . . . shall apply.”). The provisional character suggests

that Congress saw the 1976 interpretation not as necessarily

complying with the new statute but as merely filling a gap that

would have existed before its implementation. 
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In both these respects the present case differs markedly

from decisions where we’ve given great weight to regulations

antedating a statute that was intended to adopt a pre-existing

regulatory scheme. See GTE Service Corp. v. FCC, 224 F.3d

768, 771-74 (D.C. Cir. 2000).