Clean Water Action Council of Northeastern Wisconsin, Inc. v. United States Environmental Protection Agency, 765 F.3d 749

The Clean Air Act invites states to implement plans including PSD programs to prevent significant deterioration while allowing some new sources.
Baseline and cap define an increment; new sources that increase emissions consume that increment; post-1975 sources count against the state’s allowance.
Title V requires operating permits; Wisconsin issued a Title V permit for Georgia-Pacific’s plant modification in 2004 after a pre-1975 permit was renewed.
EU objections argued Wisconsin’s regulations incorrectly implemented the Act by treating the 2004 modification as requiring new allowances for the entire plant.
EPA had previously concluded that modifications to pre-1975 sources do not require counting the whole plant’s emissions against the baseline, only increases from the modification.
Council challenged EPA and Wisconsin in court under §7607(b); EPA moved to dismiss or transfer based on jurisdiction and venue rules.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are §7607(b) timing and venue rules jurisdictional?	EPA argues jurisdiction is required by §7607(b).	Council argues the timing/venue rules are jurisdictional to force dismissal.	No; §7607(b) timing/venue is non-jurisdictional.
Was the Council’s challenge timely or properly filed given circuit placement?	Challenge was belated and filed in the wrong circuit.	Time and circuit placement are jurisdictional requirements that were not met.	Timeliness/venue are non-jurisdictional; petition can proceed notwithstanding timing.
How should 42 U.S.C. §7479(4) be interpreted regarding pre- and post-1975 emissions from a plant?	3rd sentence counts the entire plant’s emissions when a modification occurs; pre-1975 emissions are reallocated.	Sentences 2 and 3 together treat pre-1975 emissions as baseline and post-1975 modifications count toward the allowance.	EPA’s interpretation is reasonable; the statute is ambiguous and EPA’s reading governs.

Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817 (2013) (nonjurisdictional status of many filing deadlines; clear-statement rule not met)
Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (filing deadlines are typically claim-processing rules, not jurisdictional)
Reed-Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (statutory preconditions not jurisdictional; analysis of timing rules)
Bowles v. Russell, 551 U.S. 205 (2007) (limits on time to appeal; not a jurisdictional bar in ordinary contexts)
Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007) (agency interpretation of ambiguous statutes; reasonable interpretation governs)