 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



                  Filed December 9, 2005

                       No. 02-1387

               STATE OF NEW YORK, ET AL.,
                      PETITIONERS

                            v.

          ENVIRONMENTAL PROTECTION AGENCY,
                    RESPONDENT

       NSR MANUFACTURERS ROUNDTABLE, ET AL.,
                  INTERVENORS


                    Consolidated with
  03-1016, 03-1033, 03-1036, 03-1040, 03-1041, 03-1044,
  03-1045, 03-1046, 03-1047, 03-1048, 03-1049, 03-1050,
  03-1051, 03-1052, 03-1054, 03-1055, 03-1056, 03-1057,
  03-1104, 03-1130, 03-1131, 03-1135, 03-1175, 03-1176,
      03-1177, 03-1178, 03-1437, 03-1448, 03-1457


                On Petitions for Rehearing



    Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
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                          ORDER

    Upon consideration of the petition of the Utility Air
Regulatory Group (“UARG”) for rehearing filed August 8,
2005; the petitions of the Clean Air Implementation Project
(“CAIP”) and the Environmental Protection Agency (“EPA”) for
rehearing filed August 8, 2005, and the responses thereto; and
the motion of the State of North Dakota for leave to file a
response to the petitions of CAIP and EPA, and the lodged
response, it is

    ORDERED that the motion for leave to file be denied. The
Clerk is directed to return to the State of North Dakota the
lodged response. It is

        FURTHER ORDERED that UARG’s petition be denied.
It is

    FURTHER ORDERED that CAIP’s and EPA’s petitions
be denied. With respect to EPA’s “Clean Units” rule, see the
opinion attached to this order filed by Senior Circuit Judge
Williams.* It is

     FURTHER ORDERED that EPA’s request for
clarification as to any retroactive effect of the ruling on
Pollution Control Project provision be denied. Because no
specific retroactive application of this provision is before the
court, it would be premature to rule on this request.

                         Per Curiam

                                    FOR THE COURT:
                                    Mark J. Langer, Clerk

                                   BY:
                               3

                                    Michael C. McGrail
                                    Deputy Clerk




* With respect to the “Clean Units” rule, Circuit Judges Rogers
and Tatel vote to deny the petitions for rehearing substantially
for the reasons stated in the attached opinion.
                                4

     WILLIAMS, Senior Circuit Judge, concurring in the denial
of rehearing (with respect to EPA’s “Clean Unit” rule).

     In petitioning for rehearing, EPA for the first time calls our
attention to a 1976 regulation manifesting EPA’s definition of
“modification” for purposes of its New Source Performance
Standards (“NSPS”). As the New Source Review provisions
adopted in 1977 and at issue here define “modification” simply
by cross-referencing the statutory NSPS definition, the 1976
regulation may cast light on what concept of modification
Congress meant for its New Source Review provisions. In fact
the 1976 regulation defines a “major modification” as
“includ[ing] a modification to any structure, building, facility,
installation or operation (or combination thereof) which
increases the allowable emission rate by the amounts set forth
above.” Requirements for Preparation, Adaptation, and
Submittal of Implementation Plans, 41 Fed. Reg. 55,524,
55,528/1 (Dec. 21, 1976) (emphasis added). At first blush this
appears inconsistent with our holding that the 1977 amendments
required a comparison of actual (or projected actual) emissions
before and after the change in question. New York v. EPA, 413
F.3d 3, 38-40 (D.C. Cir. 2005).

     An introductory issue is whether we may properly reach the
argument. In Kamen v. Kemper Financial Services, 500 U.S. 90
(1991), the Supreme Court ruled that while courts generally
should not entertain an “issue or claim” raised for the first time
in a reply brief, they were not limited to “particular legal
theories” advanced by the parties, but retained “independent
power to identify and apply the proper construction of governing
law.” Id. at 99. Presumably it is for this reason that we feel free
to rely on case authority not mentioned by any of the parties.
Cf. Independent Ins. Agents of Am. v. Clarke, 955 F.2d 731,
742-43 (D.C. Cir. 1992) (Silberman, J., dissenting), rev’d sub
nom., United States Nat'l Bank v. Independent Ins. Agents of
                                5

Am., 508 U.S. 439 (1993). As the parties clearly set forth their
competing interpretations of the statute (the “issue or claim”),
inferences from a regulation existing at the time of enactment
seem to be merely a “particular legal theor[y].” Disregard of the
regulation could cause us to misconstrue a statute, to adopt not
a “proper” but an improper construction. Accordingly, I think
it proper to consider the regulation newly called to our attention.

     EPA and Industry argue that the 1976 regulation’s
classification of a change that “increases the allowable emission
rate” as a “modification” establishes that Congress intended to
grant EPA authority to use such a criterion, rather than using
only changes in actual emissions, as we originally held. But the
inference is extremely weak. First, the regulation interpreted by
the 1976 ruling, Review of New Sources and Modifications, 40
CFR § 51.18 (1976), differed radically from § 111(a)(4). As
then worded, 40 CFR § 51.18 required State Implementation
Plans to call for preconstruction review of new sources or
modifications that would “result in violations of applicable
portions of the control strategy or . . . interfere with” the
attainment or maintenance of NAAQS. Thus the language being
interpreted itself included a direct focus on concepts broader
than “actual” emissions. In the adoption of § 111(a)(4) as the
governing standard, then, Congress was evidently superseding
rather than codifying the prior regime. See New York State v.
EPA, 413 F.3d at 12, 19-20; see also Alabama Power Co. v.
Costle, 636 F.2d 323, 349 (D.C. Cir. 1979).

     Second, as environmental petitioners note, the 1976
regulation was adopted only provisionally. See Pub. L. 95-95,
§ 129(a)(1), 91 Stat. 745 (“Before July 1, 1979, the interpretive
regulation . . . shall apply.”). The provisional character suggests
that Congress saw the 1976 interpretation not as necessarily
complying with the new statute but as merely filling a gap that
would have existed before its implementation.
                              6

    In both these respects the present case differs markedly
from decisions where we’ve given great weight to regulations
antedating a statute that was intended to adopt a pre-existing
regulatory scheme. See GTE Service Corp. v. FCC, 224 F.3d
768, 771-74 (D.C. Cir. 2000).
