CLEAN WATER ACTION COUNCIL OF NORTHEASTERN WISCONSIN, INC., et al., Petitioners,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents
Argued September 23, 2013
Petition for Review of an Order of the Environmental Protection Agency.
For CLEAN WATER ACTION COUNCIL OF NORTHEASTERN WISCONSIN, INCORPORATED, MIDWEST ENVIRONMENTAL DEFENSE CENTER, INCORPORATED, Petitioners: David C. Bender, Attorney, MCGILLIVRAY, WESTERBERG & BENDER LLC, Madison, WI.
For ENVIRONMENTAL PROTECTION AGENCY, GINA MCCARTHY, Administrator, Respondents: Dustin J. Maghamfar, Attorney, DEPARTMENT OF JUSTICE, Enviromental Enforcement Section, Washington, DC.
For GEORGIA-PACIFIC CONSUMER PRODUCTS LP, Intervening Respondent: Jordan J. Hemaidan, Attorney, MICHAEL BEST & FRIEDRICH LLP, Madison, WI.
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
Easterbrook, Circuit Judge.
The Clean Air Act, 42 U.S.C. § § 7401-7671q, invites each state to craft a plan (a " state implementation plan" ) to control the levels of certain air pollutants. Most state plans include " Prevention of Significant Deterioration" (PSD) programs. These programs are designed to prevent backsliding in " attainment areas" (regions that meet or exceed the Act's air quality standards), while still allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region's aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and then a cap on pollutants above that baseline. The space between the baseline and the cap is the " increment" . In the jargon of the regulations, new sources that create a net increase in emissions " consume increment" . To simplify matters, we refer to the increment as the state's pollutant allowance. The Act grand-fathers sources operational before 1975: the baseline incorporates their emissions, with post-1975 sources counting against the allowance. See 42 U.S.C. § 7479(4).
Title V of the Act, 42 U.S.C. § § 7661-7661f, requires each covered stationary source to have an operating permit. Permits implementing Title V specify pollution-control obligations for each source. The statute allows states to administer
certain aspects of the air-pollution-control regime--including Title V permits--subject to federal review.
In 2002 Georgia-Pacific asked Wisconsin to renew the Title V permit for its pre-1975 paper mill. While Wisconsin weighed that application, Georgia-Pacific modified a paper machine at the plant. The application for a permit authorizing this modification was unopposed, and the permit issued in February 2004. In 2011 Wisconsin reissued the whole plant's operating permit. Clean Water Action Council asked EPA to reject the state's decision, arguing that Wisconsin's regulations (and their application to Georgia-Pacific) incorrectly implemented the Act. The Council believes that modifications to any part of a plant, such as the one Georgia-Pacific made in 2004, require all emissions from the plant--including pre-1975 emissions incorporated into the base-line--to count against the state's allowance. If that's so, the whole plant might need to close for lack of available allowance. But EPA declined to object, see In re Georgia Pacific Consumer Products LP Plant, (July 23, 2012), concluding that Wisconsin's approach is consonant with the agency's understanding of the statute: Modifications to pre-1975 sources do not mean that the whole plant's emissions count against the state's allowance. Only increases caused by the modifications count, the EPA concluded. After the agency published that order, the Council sought review under 42 U.S.C. § 7607(b).
Jurisdiction comes first. EPA argues that the Council necessarily challenges the regulations (75 Fed. Reg. 64,864 (Oct. 20, 2010)) that say which permits may be renewed. Section 7607(b) requires that challenges to " nationally applicable regulations" be brought before the D.C. Circuit, while challenges to actions that are " locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit" . The statute also requires that both kinds of challenge begin within 60 days of a regulation's publication. EPA contends that this court lacks jurisdiction because the Council brought the challenge belatedly and in the wrong circuit. Opinions from the Tenth and D.C. Circuits support the agency's stance. See Utah v. EPA, 750 F.3d 1182, 1184 (10th Cir. 2014); Oklahoma Department of Environmental Quality v. EPA, 740 F.3d 185, 191, 408 U.S.App.D.C. 51 (D.C. Cir. 2014); Medical Waste Institute v. EPA, 645 F.3d 420, 427, 396 U.S.App.D.C. 99 (D.C. Cir. 2011); Motor & Equipment Manufacturers Association v. EPA, ...