Case: 18-60384 Document: 00515433224 Page: 1 Date Filed: 05/29/2020
`
`United States Court of Appeals
`Fifth Circuit
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`No. 18-60384
`
`
`ENVIRONMENTAL INTEGRITY PROJECT; SIERRA CLUB,
`
` Petitioners
`
`v.
`
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW
`WHEELER, in his official capacity as Administrator of the United States
`Environmental Protection Agency,
`
` Respondents
`
`
`FILED
`May 29, 2020
`
`Lyle W. Cayce
`Clerk
`
`
`
`
`
`
`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
`2
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`No. 18-60384
`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.
`3
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`No. 18-60384
`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)).
`
`4
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` Case: 18-60384 Document: 00515433224 Page: 5 Date Filed: 05/29/2020
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`No. 18-60384
`§ 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
`5
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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.
`
`6
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`No. 18-60384
`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,
`
`7
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`No. 18-60384
`“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 Houston5 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
`
`
`3 The 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.
`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).
`5 Air Alliance Houston is not a party to this appeal.
`8
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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
`9
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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.
`10
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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
`11
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`No. 18-60384
`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.
`
`12
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`No. 18-60384
`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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`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:
`include
`Each permit
`issued under this subchapter shall
`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 ge