2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-21-2013

USA v. EME Homer City Generation, L.P

Precedential or Non-Precedential: Precedential

Docket No. 11-4406

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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
2

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
3

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 
4

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
5

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
6

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
7

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]
8

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.
9

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 EPA1did 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.
10

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).
11

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 soonto-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.
12

(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).
13

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 
14

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 “caseby-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”).
15

(BACT)5for 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 costbenefit 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.
16

3. The 1990 amendments add an operatingpermit 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 
17

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).
18

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 premodification 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.
19

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 
20

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.
21

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.
22

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.
23

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.
24

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 
25

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 
26

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 
27

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).
28

“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 
29

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 
30

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 
31

 

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) (ChaffeeBaucus 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 
32

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)).
33

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 
34

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 
35

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 
36

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
37

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 caseby-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 
38

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 
39

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 
40

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 
41

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, 
42

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).
43

“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 postconstruction.” 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 
44

[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) 
45

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).
46

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 preconstruction 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.
47

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.
48

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) 
49

(“[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 
50

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.
51

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 forwardlooking 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
52

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), 
53

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, 
54

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 
55

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 
56

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 
57

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 
58

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.
59

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 
60

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 
61

at 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 
62

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.”).
63

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 
64

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 
65

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 
66

“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 
67

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. 
68

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.