     Case: 18-60384   Document: 00515433224     Page: 1   Date Filed: 05/29/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit


                                 No. 18-60384
                                                                          FILED
                                                                      May 29, 2020
                                                                     Lyle W. Cayce
ENVIRONMENTAL INTEGRITY PROJECT; SIERRA CLUB,                             Clerk

             Petitioners

v.

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 Final Administrative Action of the
               United States Environmental Protection Agency


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      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 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
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                                No. 18-60384
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 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
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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 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.
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Id. Here, again, states’ PAL programs must be approved by EPA, following
notice and comment. See generally 42 U.S.C. § 7410. And once a state approves
an individual PAL permit, EPA must again review the individual permit and
provide for notice and comment. 40 C.F.R. § 52.21(aa)(5).
       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 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.


       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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§ 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 requirements,” but
EPA has defined the term in implementing regulations to mean



2   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
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                                    No. 18-60384
       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. (citation omitted; cleaned up). This
reflected EPA’s view that “the intent of title V is not to second-guess the results
of any State’s NSR program.” Id. (citation omitted; cleaned up).
       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


       are necessary to assure compliance with applicable requirements of this
       chapter, including the requirements of the applicable implementation plan.
Id.
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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)).
      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,


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“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 and was renewed in 2014. 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 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



       3The Tenth Circuit is currently considering an appeal directly from the Hunter Order.
See Sierra Club v. EPA, No. 18-9507 (10th Cir.). The Hunter Order’s reasoning is discussed
at greater length below.
       4EPA 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).
       5   Air Alliance Houston is not a party to this appeal.
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                                 No. 18-60384
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.

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
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                                       No. 18-60384
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., 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


       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 has invoked not only Chevron deference 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). 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
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 and its implementing
regulations. We therefore accord the Hunter Order the deference “its
persuasiveness warrants.” Union 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
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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 and
its implementing regulations in the Hunter Order is persuasive. Specifically,
we inquire into the 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


       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 not only of § 70.2 but also of Title V and the Act as a whole. This
accords with the Hunter Order itself and with EPA’s treatment of the Hunter Order in this
litigation, see supra n.6.
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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 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


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                                  No. 18-60384
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 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
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                                No. 18-60384
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.
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

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                                  No. 18-60384
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 in the preamble to 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.
21,712, 21,738–39 (May 10, 1991). EPA proffers this statement 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.
      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—
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                                  No. 18-60384
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.
      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
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                                      No. 18-60384
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. 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. 8 We also observe that



       8Making 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
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 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
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                                 No. 18-60384
(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.
      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
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                                      No. 18-60384
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. 9
                                           ***
       We emphasize that nothing in this opinion prevents Petitioners from
continuing to challenge the Facility’s compliance with the Act in other 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




       9 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
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.




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