Tuesday, September 2, 2014
Seventh Circuit Holds That Clean Air Act § 307(b)’s Timing and Venue Limitations Are Not Jurisdictional, Creating Circuit Split
On August 29, the Seventh Circuit (Easterbrook, Sykes, Tinder) issued a decision in Clean Water Action Council of Northeastern Wisconsin v. EPA, No. 12-3388. This case arose out of Wisconsin’s and EPA’s decisions to approve the renewal of a Clean Air Act Title V permit for a paper mill owned by Georgia-Pacific. The Clean Water Action Council objected to the permit, arguing that when Georgia-Pacific modified the plant in 2004, all of the plant’s emissions—rather than just the increase caused by the modification—should have counted against the applicable PSD Increment. Clean Water Action Council filed a petition for review in the Seventh Circuit. EPA and Georgia-Pacific argued that the petition for review was untimely and brought in the wrong court, because although couched as a challenge to Georgia-Pacific’s permit renewal, it essentially challenged a nationally applicable EPA regulation regarding Title V permit renewals and therefore had to be brought in the D.C. Circuit within sixty days of promulgation of that regulation. The Seventh Circuit held that, contrary to decisions of the Tenth and D.C. Circuits, the timing and venue restrictions in Clean Air Act § 307(b) are non-jurisdictional claim-processing rules. Concluding that the requirements of § 307(b) are non-jurisdictional allowed the court of appeals to reject Clean Water Action Council’s petition on other grounds, without reaching the question whether the petition challenged a nationally applicable EPA regulation and should have been brought in the D.C. Circuit. On the merits of Clean Water Action Council’s petition, the Seventh Circuit upheld as reasonable EPA’s interpretation that the Clean Air Act allows the agency to count only the emissions increase caused by the modification against a PSD Increment.