Case: 18-60384     Document: 00515525547         Page: 1     Date Filed: 08/13/2020




         United States Court of Appeals
              for the Fifth Circuit                                     United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         August 13, 2020
                                No. 18-60384                              Lyle W. Cayce
                                                                               Clerk

 Environmental Integrity Project; Sierra Club,

                                                                     Petitioners,

                                    versus

 United States Environmental Protection Agency;
 Andrew Wheeler, in his official capacity as Administrator of
 the United States Environmental Protection Agency,

                                                                    Respondents.


                    Petition for Review of an Order of the
                      Environmental Protection Agency
                     83 Fed. Reg. 12,753 (Mar. 23, 2018)



                  ON PETITION FOR REHEARING

 Before Haynes, Graves, and Duncan, Circuit Judges.
 Stuart Kyle Duncan, Circuit Judge:
        The petition for rehearing is DENIED. We withdraw our prior
 opinion, reported at 960 F.3d 236, and substitute the following:
        We consider EPA’s administration of the Title V permitting program
 under the Clean Air Act (the “Act”), 42 U.S.C. § 7401 et seq. Added to the
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                                  No. 18-60384

 Act in 1990, Title V is designed to consolidate in a single operating permit all
 substantive requirements a pollution source must comply with, including
 preconstruction permits previously issued under Title I of the Act. In this
 case, ExxonMobil sought a revised Title V permit concerning an expansion
 of a plant in Baytown, Texas. Petitioners Environmental Integrity Project and
 Sierra Club asked EPA to object on the grounds that, in their view, the
 underlying Title I preconstruction permit allowing the expansion was invalid.
 EPA rejected Petitioners’ arguments and declined to object. In so doing, EPA
 explained it has recently returned to its original view of Title V, under which
 the Title V permitting process is not the appropriate vehicle for re-examining
 the substantive validity of underlying Title I preconstruction permits.
 Petitioners ask us to review EPA’s decision. Concluding EPA’s
 interpretation of the Title V program is independently persuasive and
 therefore entitled to the mild form of deference recognized by Skidmore v.
 Swift & Co., 323 U.S. 134 (1944), we deny the petition.
                                        I.
                                       A.
        The Act “establishes a comprehensive program for controlling and
 improving the nation’s air quality through state and federal regulation.”
 BCCA Appeal Grp. v. EPA, 355 F.3d 817, 821–22 (5th Cir. 2003). It does so
 through “[a]n experiment in cooperative federalism” that divides
 responsibilities between EPA and the states. Luminant Generation Co. v. EPA,
 675 F.3d 917, 921 (5th Cir. 2012) (quoting Michigan v. EPA, 268 F.3d 1075,
 1083 (D.C. Cir. 2001)). EPA “formulat[es] national ambient air quality
 standards,” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 308 (2014),
 whereas the states bear the “primary responsibility” for implementing those
 standards, id.; accord Michigan, 268 F.3d at 1083 (EPA’s “overarching role is
 in setting standards, not in implementation”).
        This case involves permits issued under Title I’s New Source Review
 (“NSR”) program, which Congress added to the Act in 1977. See New York



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                                  No. 18-60384

 v. EPA, 413 F.3d 3 (D.C. Cir. 2015). The NSR program requires operators to
 obtain a preconstruction permit before building a new facility or modifying
 an old one. These permits are issued by the states, through mechanisms
 called state implementation plans (“SIPs”). Once a state has designed its
 SIP, the state must submit it to EPA. See generally 42 U.S.C. § 7410. EPA
 must review the SIP to ensure its compliance with Title I and provide notice
 and an opportunity to comment regarding the SIP. Id. § 7410(a)(2). Only if
 the SIP complies with the Act must EPA approve it. Id. § 7410(k)(3)). States
 periodically revise their SIPs to keep up with EPA’s new substantive
 regulations. As with their original SIPs, states have to submit revisions to
 EPA, which again subjects them to notice and comment and then approves
 them unless they “interfere” with attainment of Title I standards. Id.
 § 7410(l).
        Title I contains provisions that apply to all SIPs. Under these
 provisions, before breaking ground on a new facility, an operator applies to
 the state for a new-source permit. The state must provide notice and an
 opportunity to comment before it approves individual preconstruction
 permits. See 40 C.F.R. § 51.161(a). The substantive requirements for
 preconstruction permits differ markedly depending on whether the new
 source is deemed “major” or “minor.” A source is major if it has “the
 potential to emit 100 tons per year of any air pollutant.” Util. Air Regulatory
 Grp., 573 U.S. at 310 (citing 42 U.S.C. §§ 7661(2)(B), 7602(j) (cleaned up)).
 The Act specifies “in considerable detail” the requirements states must
 meet to grant preconstruction permits to major sources. Luminant Generation
 Co., 675 F.3d at 922 (citing 42 U.S.C. §§ 7470–7503). In contrast, the Act’s
 requirements for minor new-source review are “sparse,” allowing for
 “wide[]” variation “from State to State.” Id. (citing inter alia 40 C.F.R.
 §§ 51.160–64).
        Ordinarily, states must evaluate and permit every new source and
 every new expansion of an existing source. But in 2002, EPA promulgated a




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 rule that allows existing sources to expand without undergoing new-source
 review. New York, 413 F.3d at 36. Under the rule, an operator can obtain a
 ten-year Plantwide Applicability Limitation (“PAL”) permit. Id. (citation
 omitted). The whole facility can avoid major new-source review for
 alterations if, as altered, the whole facility’s emissions do not exceed levels
 specified in the PAL permit. Id. Here, again, states’ PAL programs must be
 approved by EPA, following notice and comment. See generally 42 U.S.C.
 § 7410.
         In 1990, Congress added Title V to the Act. Title V’s purpose is to
 provide each source a single permit that contains and consolidates all the
 information it needs to comply with the Act. 1 Accordingly, “Title V does not
 generally impose new substantive air quality control requirements.” Sierra
 Club v. Johnson, 541 F.3d 1257, 1260 (11th Cir. 2008) (citations omitted;
 cleaned up). Instead, it provides for individual operating permits that
 “contain monitoring, record keeping, reporting, and other conditions” in
 one place. Id. (citations omitted). “In a sense,” then, a Title V permit “is a
 source-specific bible for Clean Air Act compliance.” Virginia v. Browner, 80


         1
           See, e.g., U.S. Sugar Corp. v. EPA, 830 F.3d 579, 597 (D.C. Cir. 2016) (“Title V
 does no more than consolidate existing . . . requirements into a single document . . . without
 imposing any new substantive requirements.” (quoting Sierra Club v. Leavitt, 368 F.3d
 1300, 1302 (11th Cir. 2004)) (cleaned up)); id. (Title V’s legislative history “indicates that
 permits’ purpose is “so that the public might better determine the requirements to which
 the source is subject, and whether the source is meeting those requirements” (citation
 omitted; cleaned up)); Sierra Club v. Johnson, 541 F.3d 1257, 1260 (11th Cir. 2008) (“The
 intent of Title V is to consolidate into a single document (the operating permit) all of the
 clean air requirements applicable to a particular source of air pollution.” (citation
 omitted)); id. (describing the Title V amendments as adding “clarity and transparency . . .
 to the regulatory process” and noting that “Title V does not generally impose new
 substantive air quality control requirements”(citations omitted)); Leavitt, 368 F.3d at 1302
 (“Title V imposes no new requirements on sources. Rather, it consolidates existing air
 pollution requirements into a single document, the Title V permit, to facilitate compliance
 monitoring.”); see also United States v. EME Homer City Generation, L.P., 727 F.3d 274, 280
 (3d Cir. 2013) (“Title V ‘does not generally impose new substantive air quality control
 requirements[]’ . . . .” (quoting Johnson, 541 F.3d at 1261)).




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 F.3d 869, 873 (4th Cir. 1996). Like Title I, Title V is administered mostly by
 the states. La. Dep’t of Envtl. Quality v. EPA [LDEQ], 730 F.3d 446, 447 (5th
 Cir. 2013) (citations omitted). Accordingly, as with Title I, states develop
 their own Title V permitting programs and submit them to EPA for approval.
 Id. (citing 42 U.S.C. § 7661a(d)). A Title V permit usually contains all of the
 source’s Title I preconstruction permits. Title V permits sometimes contain
 other state-approved preconstruction permits, issued pursuant to state-
 specific standards. Any such state permits must be designated as “state-
 only” or as not “federally enforceable” in the Title V operating permit. See
 40 C.F.R. § 70.6(b)(2).
           Once a state approves a Title V permit, it submits the permit to EPA
 for review. 42 U.S.C. § 7661d(a)(1). If the permit does not comply with Title
 V, EPA must object to it within forty-five days. Id. § 7661d(b)(1). If EPA does
 not object, “any person may petition” within sixty days of the end of the
 objection period for EPA to object. Id. § 7661d(b)(2). EPA then has sixty
 more days to decide whether to grant the petition. EPA must object to the
 permit “if the petitioner demonstrates to [EPA] that the permit is not in
 compliance with [Title V], including the requirements of the applicable
 implementation plan.” Id. A denial of a petition constitutes a final agency
 action subject to judicial review. Id. Title V permits must be renewed every
 five years. Id. § 7661a(b)(5). Each renewal carries with it the petition process
 described above.
           Title V requires each permit to include four kinds of contents:
 (1) “enforceable emission limitations and standards,” (2) a compliance
 schedule, (3) a monitoring and recordkeeping requirement, and (4) “such
 other conditions as are necessary to assure compliance with applicable
 requirements of this chapter, including the requirements of the applicable
 implementation plan.” Id. § 7661c(a). 2 The Act does not define “applicable


 2
     The provision reads in whole:




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                                      No. 18-60384

 requirements,” but EPA has defined the term in implementing regulations to
 mean
        all of the following as they apply to emissions units in a [Title
        V] source . . . :
        (1) Any standard or other requirement provided for in the
        applicable implementation plan approved or promulgated by
        EPA through rulemaking under title I of the Act that
        implements the relevant requirements of the Act, including
        any revisions to that plan . . . ; [and]
        (2) Any term or condition of any preconstruction permits
        issued pursuant to regulations approved or promulgated
        through rulemaking under title I . . . .
 40 C.F.R. § 70.2.
        EPA has twice changed its interpretation of Title V and § 70.2.
 Immediately following Title V’s passage, EPA expressed the view that a Title
 V permit should incorporate the source’s Title I preconstruction permit
 limits “without further review.” In the Matter of PacifiCorp Energy, Hunter
 Power Plant, Order on Petition No. VIII-2016-4 [Hunter Order], at 11 (Oct. 16,
 2017) (quoting Proposed Operating Permit Program, 56 Fed. Reg. 21,712,
 21,738–39 (May 10, 1991)). Accordingly, a source’s Title I permit
 “define[d]” the “applicable requirements” that must appear in a Title V
 operating permit pursuant to § 7661c(a) and § 70.2. Id. at 10 (quoting
 Operating Permit Program, 57 Fed. Reg. 32,250, 32,259 (July 21, 1992)). This
 reflected EPA’s view that “the intent of title V is not to second-guess the


        Each permit issued under this subchapter shall include enforceable
        emission limitations and standards, a schedule of compliance, a
        requirement that the permittee submit to the permitting authority, no less
        often than every 6 months, the results of any required monitoring, and
        such other conditions as are necessary to assure compliance with
        applicable requirements of this chapter, including the requirements of the
        applicable implementation plan.
 Id.




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                                     No. 18-60384

 results of any State’s NSR program.” Id. (quoting Proposed Operating Permit
 Program, 56 Fed. Reg. at 21,739) (cleaned up); see also Operating Permit
 Program, 57 Fed. Reg. at 32,259 (“As stated in the May 10, 1991 proposal,”
 the intent of certain changes to proposed program “is not to second-guess
 the results of any State NSR determination.”).
        A few years later, EPA began drifting from this view, interpreting
 § 70.2(1) more broadly to allow the agency to “examine the propriety of prior
 construction permitting decisions.” Hunter Order at 11. In 1997, for instance,
 the agency construed § 70.2(1) to require that a source seeking a Title V
 permit must have received the correct kind of new-source permit. Id. at 11–
 12 (citing In the Matter of Shintech, Inc., Order on Petition, Permit Nos. 2466-
 VO, 2467-VO, 2468-VO (Sept. 10, 1997)). And in 1999, an EPA official issued
 a letter to state permitting authorities asserting that the term “applicable
 requirements”     includes    the     requirement    to   obtain   the   correct
 preconstruction permits, which must comply with “the Act, EPA
 regulations, and SIP’s [sic].” Id. at 12 (citation omitted). On this view, EPA
 may use Title V review to object to an “improper preconstruction
 determination.” Id. (citation omitted; cleaned up).
        In more recent matters, EPA has gone as far as reviewing state
 agencies’ permitting decisions for reasonableness and arbitrariness. Id. at 12–
 13 (citing In the Matter of American Electric Power, John W. Turk Plant, Order
 on Petition No. VI-2008-01 (Dec. 15, 2009); In the Matter of Cash Creek
 Generation, Order on Petition Nos. IV-2008-1 & IV-2008-2 (Dec. 15, 2009); In
 the Matter of Cash Creek Generation, Order on Petition No. IV-2010-4 (June 22,
 2012)). And at least twice, EPA has considered whether sources permitted as
 minor sources should have been subject to major new-source review. Id. at 13
 (citing In the Matter of CEMEX, Inc.—Lyons Cement Plant, Order on Petition
 VIII-2008-01 (April 20, 2009); In the Matter of Wisc. Power and Light—
 Columbia Generating Stations, Order on Petition No. V-2008-1 (Oct. 8, 2009)).




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         In 2017, however, EPA returned to its original view of Title V. In
 denying a petition to object to a Title V permit for a Utah power plant, EPA
 announced that it now construes § 70.2 such that the requirements described
 by subsection (1) are merely those contained in the facility’s existing Title I
 permit. Hunter Order at 10. Accordingly, in Title V review, neither EPA nor
 state permitting authorities must determine whether the source received the
 right kind of preconstruction permit. It is enough that the Title V permit
 reflects the result of the state preconstruction permitting decision. The result
 of that process, whether it be a major or minor permit or no permit at all,
 “define[s]” the source’s requirements “for purposes of title V permitting.”
 Id. (quoting 57 Fed. Reg. 32,250, 32,259 (July 21, 1992)). 3
                                             B.
         In 2005, the Texas Commission on Environmental Quality
 (“TCEQ”) issued a PAL permit for ExxonMobil’s Baytown Olefins Plant
 (the “Plant”). This particular permit is called PAL6. It includes the Plant’s
 plantwide applicability limits, such that any expansion within those limits will
 not trigger major new-source review. PAL6 was incorporated into the Plant’s
 Title V permit in 2006. See In the Matter of ExxonMobil Corp., Baytown Olefins
 Plant, Order on Petition No. VI-2016-12, at 7 (Mar. 1, 2018). 4
         In 2012, ExxonMobil applied for a Title I preconstruction permit to
 build a new ethylene production facility (the “Facility”) at the Plant. PAL6
 allowed the Facility to circumvent “major” new-source permitting


         3
          The Tenth Circuit recently decided an appeal directly from the Hunter Order. See
 Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020). It held the Hunter Order contradicts
 § 70.2’s definition of “applicable requirements,” which, according to the court,
 “unambigiously refers to all requirements in a [SIP], . . . including . . . requirements for
 major NSR.” Id. at 891. The Hunter Order’s reasoning is discussed at greater length below.
         4
           EPA has approved Texas’s Title I SIP, 40 C.F.R. § 52.2270, its PAL program,
 Final Rule, Revisions to the NSR State Implementation Plan, Texas, 77 Fed. Reg. 65,119 (Oct.
 25, 2012), and its Title V permitting program, Clean Air Act Full Approval of Operating
 Permits Program; State of Texas, 66 Fed. Reg. 63,318 (Dec. 6, 2001).




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 requirements, and so ExxonMobil applied for and ultimately received a
 “minor” new-source permit. Environmental Integrity Project, Sierra Club,
 and Air Alliance Houston 5 filed comments and requested a contested case
 hearing before the Texas State Office of Administrative Hearings. They
 challenged the Facility’s preconstruction permit, arguing the Facility should
 have required a major new-source permit. This is because, in their view,
 PAL6 contravenes federal PAL rules, such that it cannot validly shield the
 Facility from major new-source permitting. After a hearing, two
 administrative law judges from Texas’s Office of Administrative Hearings
 ruled against the groups. TCEQ then issued a minor new-source permit for
 the Facility.
        ExxonMobil applied to TCEQ to modify the Plant’s Title V permit to
 incorporate the minor new-source permit. Petitioners again filed comments,
 reiterating their argument that PAL6 was invalid. Despite their comments,
 TCEQ submitted the revised Title V permit to EPA for review. EPA did not
 object. Accordingly, TCEQ issued the permit. Petitioners could have, see 42
 U.S.C. § 7661a(b)(6), but did not appeal TCEQ’s decision to a Texas state
 court. Instead, in August 2016, the groups petitioned EPA to object to the
 Title V permit.
        EPA denied the petition. Relying on the Hunter Order, the agency
 explained that
        [w]here the EPA has approved a state’s Title I permitting
        program, duly issued preconstruction permits will establish the
        ‘applicable requirements,’ and the terms and conditions of
        those permits should be incorporated into a source’s Title V
        permit without further review.




        5
            Air Alliance Houston is not a party to this appeal.




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                                   No. 18-60384

  Because “any such challenges should be raised through the appropriate Title
  I permitting procedures or enforcement authorities,” EPA would not object
  to the Title V permit.
         Petitioners timely sought our review.
                                        II.
         We will overturn EPA’s denial of the petition only if it was “arbitrary,
  capricious, an abuse of discretion, or otherwise not in accordance with law.”
  5 U.S.C. § 706(2)(A); accord Alaska Dep’t of Envtl. Conservation v. EPA, 540
  U.S. 461, 496–97 (2004). “The scope of review under the ‘arbitrary and
  capricious’ standard is narrow.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
  Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency action will be overturned
  only if it is contrary to statute or “if the agency has relied on factors which
  Congress has not intended it to consider, entirely failed to consider an
  important aspect of the problem, offered an explanation for its decision that
  runs counter to the evidence before the agency, or is so implausible that it
  could not be ascribed to a difference in view or the product of agency
  expertise.” Id.
         Petitioners must “demonstrate[] . . . that the permit is not in
  compliance with the requirements of” Title V. 42 U.S.C. § 7661d(b)(2).
  Only that showing triggers EPA’s duty to object to the permit. LDEQ, 730
  F.3d at 447.
                                       III.
         This dispute centers on an agency’s interpretation of a statutory
  scheme that Congress has charged it with administering. In such a dispute,
  we ordinarily decide first whether and to what degree to defer to the agency’s
  interpretation. See, e.g., Texas v. EPA, 829 F.3d 405, 425 (5th Cir. 2016)
  (determining what level of deference to accord to “EPA’s interpretation of
  the Clean Air Act”). EPA claims the Hunter Order, which undergirds its
  action here, is entitled to Chevron deference. See generally Chevron, U.S.A.,




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                                         No. 18-60384

  Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Under Chevron, we
  defer to an agency’s interpretation when it reasonably resolves a genuine
  statutory ambiguity. United States v. Mead Corp., 533 U.S. 218, 229 (2001)
  (citing Chevron, 467 U.S. at 842–45). EPA argues that the term “applicable
  requirements” in § 7661c(a) 6 is ambiguous because it compels neither
  Petitioners’ construction (that “applicable requirements” includes all the
  Act’s requirements, regardless of the contents of any preconstruction
  permit) nor EPA’s construction (that Title V does not require EPA to revisit
  preconstruction permitting decisions). EPA’s resolution of this ambiguity is
  reasonable, the agency claims, because it is “better as a matter of policy and
  better comports with the statutory structure and the principal purpose of the
  Title V program.” In turn, Petitioners respond that there is no ambiguity for
  EPA to resolve. They argue that the term “applicable requirement” is not
  ambiguous but instead is simply “broad and sweeping,” encompassing all the
  Act’s requirements as applied to a particular source, not just the
  requirements that happen to be contained in a Title I new-source permit.
          We need not decide whether the Hunter Order is entitled to Chevron
  deference because, independent of Chevron, we find its reasoning persuasive
  as a construction of the relevant provisions of Title V. We therefore accord
  the Hunter Order the deference “its persuasiveness warrants.” Union


          6
            Although EPA’s brief claims in passing that the agency “reasonably interpreted
  the statute and regulation,” the agency develops no argument as to the latter, relying only
  on Chevron deference. We note that the Hunter Order itself and EPA’s order in this matter
  both claim to interpret not § 7661c(a) but instead § 70.2. And in defending the Hunter
  Order in the Tenth Circuit, EPA invoked not only Chevron but Auer deference, under
  which courts “defer[] to agencies’ reasonable readings of genuinely ambiguous
  regulations.” Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019) (citing Auer v. Robbins, 519 U.S.
  452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)) (emphasis added);
  see Resp’t EPA’s Br. 42–44, Sierra Club v. EPA, No. 18-9507 (10th Cir. Nov. 7, 2019).
  Accordingly, the Tenth Circuit’s opinion in Sierra Club addressed the Hunter Order’s
  compliance with the definition of “applicable requirements” in § 70.2. 964 F.3d at 891.
  EPA does not invoke Auer here, and we express no view on whether Auer deference applies
  to the Hunter Order.




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                                       No. 18-60384

  Neighbors United, Inc. v. Jewell, 831 F.3d 564, 580 (D.C. Cir. 2016) (citing
  inter alia Skidmore, 323 U.S. 134); see also id. (“[W]here the deference we
  should accord an agency interpretation is unclear, ‘we need not reach the
  question of Chevron deference’ if the [agency’s] interpretation ‘satisfies the
  requirements for Skidmore deference.’” (quoting Brown v. United States, 327
  F.3d 1198, 1205 (D.C. Cir. 2003))). Skidmore deference is a weaker form of
  deference that accords “weight” to an agency’s judgment depending on “the
  thoroughness evident in [the agency’s] consideration, the validity of its
  reasoning, its consistency with earlier and later pronouncements, and all
  those factors which give it power to persuade, if lacking power to control.”
  Dhuka v. Holder, 716 F.3d 149, 154 (5th Cir. 2013) (quoting Skidmore, 323
  U.S. at 140); see also, e.g., Employer Solutions Staffing Grp. II, LLC v. Office of
  Chief Admin. Hearing Officer, 833 F.3d 480, 480 (5th Cir. 2016) (observing
  Skidmore accords “a measure of deference proportional to the thoroughness
  evident in [the agency’s] consideration, the validity of its reasoning, its
  consistency with earlier and later pronouncements, and all those factors
  which give it power to persuade” (quoting Christopher v. SmithKline Beecham
  Corp., 567 U.S. 142, 159 (2012) (internal quotation marks omitted)). Even
  assuming arguendo that only Skidmore deference applies, under that standard
  we find persuasive EPA’s position that Title V does not require revisiting the
  validity of underlying Title I preconstruction permits as part of the Title V
  permitting process. 7
                                            IV.
          Applying Skidmore, we ask whether EPA’s interpretation of Title V in
  the Hunter Order is persuasive. Specifically, we inquire into the


          7
            The Hunter Order is framed largely as an interpretation of 40 C.F.R. § 70.2,
  which in turn implements § 7661c(a). See Hunter Order at 9–10 (describing definitions of
  “applicable requirements” in §§ 70.2(1) and (2)). Nonetheless, we will analyze the Hunter
  Order as a construction of Title V and the Act as a whole. This accords with EPA’s
  treatment of the Hunter Order in this litigation, see supra n.6.




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                                   No. 18-60384

  persuasiveness of EPA’s current view that the Title V permitting process
  does not require substantive reevaluation of the underlying Title I
  preconstruction permits applicable to a pollution source. As we read it, the
  Hunter Order defends the agency’s interpretation based principally on Title
  V’s text, Title V’s structure and purpose, and the structure of the Act as a
  whole. Having examined these reasons and found them persuasive, we
  conclude that EPA’s current approach to Title V merits Skidmore deference.
                                        A.
         We first consider EPA’s treatment of Title V’s text. The Hunter
  Order argues that Petitioners’ argument is fatally undermined principally not
  by what Title V includes but by what it omits: an explicit requirement that
  EPA review the “substantive adequacy” of underlying preconstruction
  permits during the Title V process. Hunter Order at 14 (citation omitted).
  The Order reasons that Title V contains no requirement that its
  “consolidation process . . . involve a review of the substantive adequacy” of
  preconstruction requirements, an undertaking that “would entail much more
  than taking steps to consolidate existing air pollution requirements.” Id.
  (quoting U.S. Sugar Corp., 830 F.3d at 597) (cleaned up). Nowhere, avers the
  agency, does Title V permitting require the state permitting authority or EPA
  to double-check whether preconstruction permits “properly derived” from
  the preconstruction rules. Nor does Title V require these requirements to
  “be re-checked every time the [Title V] permit is renewed.” Id.
         We find persuasive EPA’s position that Title V lacks a specific textual
  mandate requiring the agency to revisit the Title I adequacy of
  preconstruction permits. Our own review of Title V confirms that it contains
  no such explicit requirement, nor any language guiding the agency on how to
  perform a review of that nature. “The principle that a matter not covered is
  not covered is so obvious that it seems absurd to recite it.” Yates v. Collier,
  868 F.3d 354, 369 (5th Cir. 2017) (citation omitted). A number of cases have
  identified the casus omissus pro omisso habendus est canon, under which a




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                                    No. 18-60384

  statute should not be read to include matter it does not include. See, e.g.,
  Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004) (rejecting construction that
  “would have us read an absent word into the statute” because it “would
  result not in a construction of the statute, but, in effect, an enlargement of it
  by the court” (citing Iselin v. United States, 270 U.S. 245, 251 (1926))
  (cleaned up)). Here, Title V does not tell EPA to reconsider new-source
  review in the course of Title V permitting. We reject Petitioners’ position
  because “[t]here is a basic difference between filling a gap left by Congress’
  silence and rewriting rules that Congress has affirmatively and specifically
  enacted.” In re Miller, 570 F.3d 633, 638–39 (5th Cir. 2009) (quoting Lamie,
  540 U.S. at 538) (cleaned up).
         EPA contrasts Title V’s silence on this front with more stringent
  oversight authority provided in Title I, arguing that this “supports reading
  the title V provision to supply a more limited oversight role for the EPA with
  regard to state implementation of preconstruction permitting programs.”
  Hunter Order at 14. The agency explains that Title I is better geared for “in-
  depth oversight of case-specific” state permitting decisions “such as through
  the state appeal process or an order or action under section[] 113 or section
  167.” Id. And, the agency urges, the absence of such schemes in Title V
  shows Congress did not intend to recapitulate the Title I process in Title V.
  See, e.g., id. at 13 n.26 (explaining that “an interpretation of title V that
  excludes revisiting preconstruction decisions does not fundamentally alter or
  limit the EPA’s authority under title I of the Act”). We find this reasoning
  persuasive. Cf. Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652,
  1658–59 (2017) (Congress’s “drafting decision” not to include statutory
  language from a comparable statute “indicates that Congress did not in fact
  want” to do so (citing Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1235
  (2014))).
         Petitioners’ disagreement with the agency’s view boils down to their
  argument that the term “applicable requirements” in § 7661c(a) requires




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                                   No. 18-60384

  EPA to review preconstruction permitting decisions. According to
  Petitioners, that term encompasses all the Act’s requirements as applied to a
  particular source, and not simply the requirements that happen to be
  contained in a Title I new-source permit. Contrary to EPA’s view, Petitioners
  argue the term “applicable requirements” is not ambiguous but is simply
  “broad and sweeping.” See Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 298
  (D.C. Cir. 2003) (“[T]he Supreme Court has consistently instructed that
  statutes written in broad, sweeping language should be given broad, sweeping
  application.” (citing New York v. FERC, 535 U.S. 1, 22 (2002))). The agency
  counters that Title V’s requirement that a permit “assure compliance with
  applicable requirements” is “general” and “broad” and so does not “clearly
  or specifically” require revisiting preconstruction permitting decisions.
  Hunter Order at 15. The general term, says EPA, does not send a “clear
  indication” that Congress intended Title V to “alter the [agency’s] balance
  of oversight” over state permitting processes. In other words, the agency
  advances the familiar argument that Congress does not “hide elephants in
  mouseholes” by “alter[ing] the fundamental details of a regulatory scheme
  in vague terms or ancillary provisions.” Id. (quoting Whitman v. Am. Trucking
  Ass’ns, 531 U.S. 457, 468 (2001)).
         We conclude EPA has the better reading of § 7661c(a). While
  “applicable requirements” may be a “broad and sweeping” phrase in the
  abstract, its context here narrows its scope. The provision reads in whole:
         Each permit issued under this subchapter shall include
         enforceable emission limitations and standards, a schedule of
         compliance, a requirement that the permittee submit to the
         permitting authority, no less often than every 6 months, the
         results of any required monitoring, and such other conditions as
         are necessary to assure compliance with applicable requirements of
         this chapter, including the requirements of the applicable
         implementation plan.




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                                   No. 18-60384

  42 U.S.C. § 7661c(a) (emphasis added). Read in context, the “applicable
  requirements” clause is residual to the three listed contents: “enforceable
  emission limitations and standards,” a compliance schedule, and a periodic
  monitoring report. Residual clauses are often phrased broadly; wrenched out
  of context, they might appear to encompass far more than the preceding
  terms. That is why courts construe residual terms in light of those preceding
  terms. See, e.g., United States v. Buluc, 930 F.3d 383, 388–89 (5th Cir. 2019)
  (discussing eiusdem generis canon under which “when a general term follows
  a specific one, the general terms should be understood as a reference to
  subjects akin to the one with the specific enumeration” (quoting Ali v. Fed.
  Bureau of Prisons, 552 U.S. 214, 223 (2008)) (cleaned up)). Here, Petitioners
  read the residual clause—“other conditions as are necessary to assure
  compliance with applicable requirements”—to leap far beyond the
  enumerated contents. They would effectively rewrite the clause to read: “a
  de novo reconsideration of the source’s preconstruction permitting.” Surely,
  Congress would not have hidden that regulatory elephant in this residual
  mousehole.
                                        B.
         We next consider EPA’s contention that its revised interpretation of
  Title V permitting “is better aligned with the structure and purpose of [T]itle
  V itself.” Id. at 14. The Hunter Order notes that Title V was not intended to
  “add new substantive requirements” to the Act. Id. (citations omitted).
  Instead, Title V’s goal was to “streamline.” Id. at 16 (quoting 42 U.S.C.
  § 7661a(b)(6)). EPA expressed this view before enacting 40 C.F.R. part 70,
  observing that “the intent of [T]itle V is not to second-guess the results of
  any State’s NSR program.” Id. at 11; see also Proposed Operating Permit
  Program, 56 Fed. Reg. at 21,738–39 (May 10, 1991); accord Operating Permit
  Program, 57 Fed. Reg. at 32,259 (“As stated in the May 10, 1991 proposal,”
  the intent of certain changes to proposed program “is not to second-guess
  the results of any State NSR determination.”). EPA proffers this statement




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                                      No. 18-60384

  as “the best indication” of the agency’s intention “when it issued” part 70.
  Hunter Order at 13. According to EPA, “[m]uch as an agency’s
  contemporaneous interpretation of a statute through a regulation is given
  great weight[,] an agency’s contemporaneous interpretation of its own
  regulations in the preamble for those regulations should carry similar
  weight.” Id. at 14. 8
         We find persuasive EPA’s view that, because Title V was not intended
  to “add new substantive requirements” to the Act, it should not be
  interpreted as Petitioners urge. Id. at 14 (citations omitted). By all accounts,
  Title V’s purpose was to simplify and streamline sources’ compliance with
  the Act’s substantive requirements. Rather than subject sources to new
  substantive requirements—or new methods of reviewing old requirements—
  “[t]he intent of Title V [was] to consolidate into a single document (the
  operating permit) all of the clean air requirements applicable to a particular
  source of air pollution.” Johnson, 541 F.3d at 1260 (citation omitted); see also,
  e.g., U.S. Sugar Corp., 830 F.3d at 597 (“Title V does no more than
  consolidate existing . . . requirements into a single document . . . without
  imposing any new substantive requirements.” (citation omitted; cleaned
  up)); Leavitt, 368 F.3d at 1302 (“Title V imposes no new requirements on
  sources. Rather, it consolidates existing air pollution requirements into a
  single document, the Title V permit, to facilitate compliance monitoring.”).
  The Title V permitting process was meant to add “clarity and
  transparency . . . to the regulatory process to help citizens, regulators, and
  polluters themselves understand which clean air requirements apply to a
  particular source of air pollution.” Johnson, 541 F.3d at 1260. This goal, as
  EPA argues, is at cross-purposes with using the Title V process to reevaluate
  preconstruction permits.



         8
          But see Sierra Club, 964 F.3d at 893–95 & n.10 (holding that language from the
  preambles to the proposed and actual operating programs contradicts § 70.2’s text).




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                                   No. 18-60384

         We also agree with EPA that the language in part 70’s preamble is
  probative of Title V’s purpose as a whole. See, e.g., Good Samaritan Hosp. v.
  Shalala, 508 U.S. 402, 414 (1993) (finding agency’s construction of newly
  enacted law “particular[ly] relevan[t]” (citation omitted)). This is because
  one sensibly expects EPA to have had a better grasp of Congress’s intent for
  Title V shortly after its enactment. See, e.g., Udall v. Tallman, 380 U.S. 1, 16
  (1965) (according “[p]articular[] . . . respect . . . when the administrative
  practice at stake involves a contemporaneous construction of a statute by the
  men charged with the responsibility of setting its machinery in motion; of
  making the parts work efficiently and smoothly while they are yet untried and
  new” (citation omitted; cleaned up)). Mere months after Title V’s
  enactment, EPA stated that Title V permits are to “incorporate” the
  standards contained in Title I preconstruction permits without further
  review.” Proposed Operating Permit Program, 56 Fed. Reg. at 21,738–39
  (emphasis added). If that were not enough, EPA stated flatly that “[t]he
  intent of [T]itle V is not to second-guess the results of any State NSR
  program.” Id. at 21,739.
         We recognize that EPA has reverted to its original interpretation of
  § 70.2, reflecting its changing views of Title V. We take the agency’s change
  of position into account in determining whether to defer to its position. See
  Dhuka, 716 F.3d at 154 (whether to defer under Skidmore depends in part on
  agency’s “consistency with earlier and later pronouncements”). But even
  when “the agency has embraced a variety of approaches,” we may still defer
  to its present position, “especially” when the current view “closely fits the
  design of the statute as a whole.” Shalala, 508 U.S. at 417–18 (citation
  omitted; cleaned up); see also id. at 417 (“The [agency] is not estopped from
  changing a view [it] believes to have been grounded upon a mistaken legal
  interpretation.” (citation omitted)).
         Finally, we are persuaded that Petitioners’ capacious view of Title V
  review is at odds with the “abbreviated” timeline Congress gave EPA.




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                                        No. 18-60384

  Hunter Order at 16. EPA has forty-five days to conduct an independent
  review of a Title V permit. 42 U.S.C. § 7661d(b). If anyone petitions EPA, it
  has sixty more days to decide whether to object to a petition. Id. We agree
  that these timelines are “inconsistent with an in-depth and searching review
  of every” permitting decision regarding a given source. Hunter Order at 16. 9
  We also observe that the fact that Title V permits must be renewed every five
  years, see 42 U.S.C. § 7661a(b)(5), tends to support the agency’s view that
  Title V was not intended to serve as a vehicle for re-examining the underlying
  substance of preconstruction permits. Subjecting a source’s preconstruction
  permit to periodic new scrutiny, without any changes to the source’s
  pollution output, would be inconsistent with Title V’s goal of giving sources
  more security in their ability to comply with the Act. See id. § 7661a(b)(6).
                                              C.
          Beyond the structure of Title V, EPA also persuasively grounds its
  interpretation in the structure of the Act as a whole. According to EPA, when
  Congress added preconstruction permitting requirements to Title I in 1977,
  it “understood that the adequacy of state preconstruction permitting
  decisions would be subject to review in state administrative and judicial
  forums.” Hunter Order at 13. It gave EPA oversight authority over
  preconstruction permitting only in specific ways, to do specific things. For
  example, Congress delineated the processes EPA must go through to approve
  SIPs. Id. at 14–15 (citing § 7410(a)(2)(C)). When it enacted Title V thirteen



          9
           Making a similar point, EPA points out that the Act requires states to issue Title
  V permits through
          streamlined[] and reasonable procedures for expeditiously determining when
          applications are complete, for processing such applications, for public
          notice, including offering an opportunity for public comment and a
          hearing, and for expeditious review of permit actions, including
          applications, renewals, or revisions.
  42 U.S.C. § 7661a(b)(6) (emphasis added).




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                                   No. 18-60384

  years later, Congress granted EPA no such authority. Id. at 15. Congress gave
  no “clear indication” that it intended to “alter the balance of oversight” EPA
  has over state permitting processes. Section 7661c(a)’s requirement that a
  Title V permit “assure compliance with applicable requirements” is
  “general” and “broad” and does not “clearly or specifically” require the
  revisiting of preconstruction permitting decisions. Id. Once again, the
  “elephants in mouseholes” canon supports this reading. Id. (quoting
  Whitman, 531 U.S. at 468).
         We find persuasive the agency’s view that the Act’s overall structure
  supports its interpretation of Title V. We have frequently noted the Act’s
  “experiment in cooperative federalism.” Luminant Generation Co., 675 F.3d
  at 921 (quoting Michigan, 268 F.3d at 1083); see also Texas, 829 F.3d at 411
  (same). Applied to NSR, this principle of federalism means it is the states,
  not EPA, that issue preconstruction permits for new sources. See generally 42
  U.S.C. § 7410. And it is the states, not EPA, that issue Title V permits. Id.
  § 7661a(d); see also LDEQ, 730 F.3d at 447 (Title V is administered mostly
  by the states (citations omitted)). While EPA retains near-plenary authority
  to approve or recall SIPs it finds inconsistent with the Act, 42 U.S.C.
  § 7410(k), the Hunter Order is correct that the agency’s authority over
  improperly issued preconstruction permits generally stops there. See
  generally Hunter Order at 14–16 (describing EPA’s authority to review
  preconstruction permits). While § 7661c(a) requires permits to contain
  conditions necessary to “assure compliance with applicable requirements,”
  we agree with EPA that this requirement is too “general” and “broad” to
  upset the Act’s balance of power between EPA and the states. Id. We thus
  agree that when it enacted Title V, Congress gave no “clear indication” that
  it intended to “alter the balance of oversight” EPA has over state permitting
  processes. Hunter Order at 15. As discussed above, Petitioners’ contrary view
  puts too much weight on § 7661c(a)’s residual clause.




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                                      No. 18-60384

            For similar reasons, we are persuaded by the agency’s contrasting
  Title V against Title I’s more detailed procedures for “in-depth oversight of
  case-specific” permitting decisions. Id. at 14. Such permitting decisions
  follow state appeals or enforcement actions authorized by other provisions of
  the Act, including citizen suits under Title III. Id. Those mechanisms are
  better structured to provide agency and citizen oversight of preconstruction
  permitting. Id. Petitioners’ contrary view would make Title V a vehicle for
  the public to (again) challenge preconstruction permits. But Title V contains
  none of the procedures that would guide those challenges, as Titles I and III
  do. Id.
            Finally, according to the Order, EPA’s position also “respects the
  finality” of the preconstruction permitting decision. Id. at 18. The agency
  reasoned that it would be “inefficient” to allow review via the Title V
  permitting process even after the preconstruction permits had been subject
  to “public notice and comment and an opportunity for judicial review.” Id.
  at 17. And those avenues provide “more time for development and
  consideration of the potential issues.” Id. at 17–18. We are persuaded that
  EPA’s construction of Title V “respects the finality” of state
  preconstruction permitting decisions, which is consistent with the Act’s
  “cooperative federalism.” Luminant Generation Co., 675 F.3d at 921.
  Petitioners’ contrary view of Title V would allow a federal agency to upset
  states’ permitting decisions with no clear mandate from Congress to do so. 10
                                          ***
            We emphasize that nothing in this opinion prevents Petitioners from
  continuing to challenge the Facility’s compliance with the Act in other



            10
             Because we hold that EPA need not reconsider the validity of Title I
  preconstruction permits under Title V, we do not reach EPA’s alternative argument that
  Petitioners have failed to demonstrate PAL6 and the Facility’s Title I permit are
  substantively invalid.




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                                   No. 18-60384

  contexts. As the agency’s order in this case explained, “a decision by the EPA
  not to object to a title V permit that includes the terms and conditions of a
  title I permit does not indicate that the EPA has concluded that those terms
  and conditions comply with the applicable SIP or the [Act].” For instance,
  the agency observed that “ExxonMobil has submitted a request to renew
  PAL6,” giving “the public the opportunity to participate in [a] future PAL
  permit proceeding, including the opportunity to comment on any relevant
  outstanding concerns with PAL6.” And, of course, Petitioners remain free
  within the Act’s bounds to enforce its substantive provisions should the
  Facility violate them. See generally 42 U.S.C. § 7604 (authorizing citizen suits
  to enforce violations).
         All we address here is EPA’s view that Title V permitting is not the
  appropriate vehicle for reexamining the substantive validity of underlying
  Title I preconstruction permits. We conclude that the agency’s
  interpretation is persuasive and therefore entitled at least to Skidmore
  deference.
         The petition is DENIED.




                                        22
