Sierra Club v. U.S. Environmental Protection Agency ( 2014 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SIERRA CLUB; CENTER FOR                 No. 11-73342
    BIOLOGICAL DIVERSITY;
    GREENACTION FOR HEALTH AND
    ENVIRONMENTAL JUSTICE,
    Petitioners,
    v.
    U.S. ENVIRONMENTAL PROTECTION
    AGENCY; LISA P. JACKSON, in her
    official capacity as Administrator,
    U.S. Environmental Protection
    Agency; GINA MCCARTHY, in her
    official capacity as Assistant
    Administrator, Office of Air and
    Radiation, U.S. Environmental
    Protection Agency,
    Respondents,
    AVENAL POWER CENTER,
    Respondent-Intervenor.
    2                    SIERRA CLUB V. U.S. EPA
    EL PUEBLO PARA EL AIRE Y AGUA                         No. 11-73356
    LIMPIO,
    Petitioner,
    v.                                OPINION
    U.S. ENVIRONMENTAL PROTECTION
    AGENCY; LISA P. JACKSON, in her
    official capacity as Administrator of
    the USEPA; JARED BLUMENFELD, in
    his official capacity as Regional
    Administrator for Region IX of the
    USEPS,
    Respondents,
    AVENAL POWER CENTER,
    Respondent-Intervenor.
    On Petition for Review of an Order of the
    United States Environmental Protection Agency
    Argued and Submitted
    October 8, 2013—San Francisco, California
    Filed August 12, 2014
    Before: N. Randy Smith and Jacqueline H. Nguyen, Circuit
    Judges, and Gordon J. Quist, Senior District Judge.*
    Opinion by Judge Nguyen
    *
    The Honorable Gordon J. Quist, Senior District Judge for the U.S.
    District Court for the Western District of Michigan, sitting by designation.
    SIERRA CLUB V. U.S. EPA                            3
    SUMMARY**
    Environmental Law
    The panel granted a petition for review brought by
    environmental groups, and vacated the Environmental
    Protection Agency’s decision to issue a Prevention of
    Significant Deterioration Permit, allowing Avenal Power
    Center LLC to build and operate the Avenal Energy Project,
    a 600 megawatt natural gas-fired power plant, under the old
    air quality standards.
    The panel held that petitioners had standing because a
    number of the petitioners had associational standing to
    challenge EPA’s action. Turning to the merits, the panel held
    that the EPA exceeded its authority under the Clean Air Act.
    The panel applied Chevron, U.S.A., Inc. v. Natural Resources
    Defense Council, Inc., 
    467 U.S. 837
    , 842 (1984), analysis,
    and held that the Clean Air Act unambiguously required
    Avenal Power to demonstrate that the Avenal Energy Project
    complied with the regulations in effect at the time the Permit
    was issued. The panel further held that because Congress had
    directly spoken on the issue, the EPA could not waive this
    requirement. The panel remanded for further proceedings.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    4               SIERRA CLUB V. U.S. EPA
    COUNSEL
    Paul R. Cort (argued) and George Torgun, Earthjustice,
    Oakland, California, for Petitioners Sierra Club, Center for
    Biological Diversity, and Greenaction for Health and
    Environmental Justice.
    Ingrid Brostrom and Brent Newell, Center on Race, Poverty
    & the Environment, San Francisco, California, for Petitioner
    El Pueblo Para El Aire y Agua Limpio.
    Ignacia S. Moreno, Assistant Attorney General, and
    Stephanie J. Talbert (argued), United States Department of
    Justice, Environment & Natural Resources Division,
    Washington, D.C.; Brian Doster, David Coursen, Melina
    Williams, and Julia Walters, United States Environmental
    Protection Agency, for Respondents.
    William R. Warne (argued), Jane E. Luckhardt, Elizabeth B.
    Stallard, Gregory T. Broderick, and Nicholas Rabinowitch,
    Downey Brand LLP, Sacramento, California, for Respondent-
    Intervenor.
    John J. Davis, Jr. and Andrew J. Kahn, Davis, Cowell &
    Bowe, LLP, San Francisco, California, for Amici Curiae
    Avenal-Area Unions.
    SIERRA CLUB V. U.S. EPA                    5
    OPINION
    NGUYEN, Circuit Judge:
    Avenal Power Center LLC (“Avenal Power”) applied to
    the United States Environmental Protection Agency (“EPA”)
    for a Prevention of Significant Deterioration Permit
    (“Permit”), to build and operate the Avenal Energy Project,
    a 600 megawatt natural gas-fired power plant in the city of
    Avenal, California. Although EPA had a statutory duty under
    the Clean Air Act to either grant or deny the Permit
    application within one year, 
    42 U.S.C. § 7475
    (c), it failed to
    do so. After the deadline passed but before taking any final
    action, EPA tightened the applicable air quality standards.
    Avenal Power filed suit and sought to compel EPA to issue
    the Permit under the old standards that would have applied
    had EPA acted within the statutory deadline. Initially, EPA
    responded that it could not legally do so, because the Clean
    Air Act explicitly requires any newly constructed facility to
    employ the best available control technology (“BACT”) for
    regulated pollutants and meet air quality standards in effect
    at the time a permit is issued.             See 
    42 U.S.C. § 7475
    (a)(3)–(4). Months later, however, EPA reversed
    course and granted Avenal Power the Permit without regard
    to the new regulations, which by then had gone into effect.
    EPA contends that, under narrow circumstances, it has the
    authority to grandfather certain permit applications like
    Avenal Power’s, and that its decision is entitled to deference
    under Chevron, U.S.A., Inc. v. Natural Resources Defense
    Council, Inc., 
    467 U.S. 837
    , 842 (1984). The Sierra Club,
    Greenaction for Health and Environmental Justice, Center for
    Biological Diversity, and El Pueblo para el Aire y Agua
    Limpio (collectively “Petitioners”), challenge EPA’s action.
    6                SIERRA CLUB V. U.S. EPA
    Applying Chevron, we hold that the Clean Air Act
    unambiguously requires Avenal Power to demonstrate that
    the Avenal Energy Project complies with the regulations in
    effect at the time the Permit is issued. Because “Congress has
    directly spoken to the precise question at issue,” Chevron,
    
    467 U.S. at 842
    , EPA cannot waive this requirement. We
    therefore GRANT the Petition for review, VACATE the
    decision to issue the Permit, and REMAND for proceedings
    consistent with this opinion.
    BACKGROUND
    Avenal Power proposes to build and operate a power
    plant, the Avenal Energy Project, near the agricultural
    communities of Avenal, Huron, and Kettleman City, within
    California’s San Joaquin Valley Pollution Control District.
    The facility would generate electricity from two 180-
    megawatt natural gas combustion turbine generators, and a
    300-megawatt steam turbine generator that utilizes heat from
    the combustion turbines. According to EPA, the facility “will
    be equipped with state-of-the-art control technology and will
    be one of the lowest emitting power plants of its kind.” It is
    undisputed, however, that its expected emissions of several
    pollutants, including nitrogen dioxide (“NO2”), carbon
    dioxide (“CO2”), and sulfur dioxide (“SO2”), are sufficient to
    subject it to regulation under the Clean Air Act.
    On February 15, 2008, Avenal Power submitted an
    application to EPA for a Permit. The Regional Administrator
    determined the application to be administratively complete on
    March 19, 2008. As of that date, EPA had not yet
    promulgated national ambient air quality standards
    (“NAAQS”) for NO2 or SO2 emissions, or BACT
    requirements for greenhouse gases, including CO2. NAAQS,
    SIERRA CLUB V. U.S. EPA                     7
    which are regularly reviewed and revised by the EPA
    Administrator, set hourly limits on the emission of designated
    pollutants. See 
    42 U.S.C. §§ 7409
    , 7409(d)(1); 
    40 C.F.R. § 52.21
    (b)(50). The BACT requirement consists of “an
    emission limitation based on the maximum degree of
    reduction of each [regulated] pollutant” that EPA determines
    is achievable “through application of production processes
    and available methods, systems, and techniques” in view of
    “energy, environmental, and economic impacts and other
    costs.” 
    42 U.S.C. § 7479
    (3).
    On June 16, 2009, after the one-year decision making
    period had elapsed, see 
    42 U.S.C. § 7475
    (c), the Regional
    Administrator finally issued a Statement of Basis describing
    the reasons for the proposed approval of the Permit. The
    Statement of Basis is subject to notice and comment
    procedures that afford the public an opportunity to participate
    in the review process by submitting written comments and
    appearing at a hearing to voice support or concern. See
    
    42 U.S.C. § 7475
    (a)(2); 
    40 C.F.R. §§ 124.10
    –12. During the
    comment period in this case, EPA held an informational
    meeting and two hearings. Concerned that the Avenal Energy
    Project would adversely impact the environment and health
    and quality of life of local residents, Petitioners filed
    comments opposing issuance of the Permit.
    While Avenal Power’s Permit application was still under
    consideration, EPA adopted more stringent NAAQS and
    revised the BACT requirement. Specifically, EPA tightened
    NAAQS for NO2, capping hourly emissions at 100 parts per
    billion (“ppb”), with the new regulations to take effect on
    April 12, 2010. See Primary National Ambient Air Quality
    Standards for Nitrogen Dioxide, 
    75 Fed. Reg. 6,474
    , 6,475
    (Feb. 9, 2010). EPA further subjected greenhouse gases such
    8                   SIERRA CLUB V. U.S. EPA
    as CO2 to BACT requirements, effective January 2, 2011.
    See Reconsideration of Interpretation of Regulations That
    Determine Pollutants Covered by Clean Air Act Permitting
    Programs, 
    75 Fed. Reg. 17,004
     (Apr. 2, 2010). Finally, EPA
    published a final rule establishing a new hourly SO2 NAAQS
    of 75 ppb, to become effective August 23, 2010. See Primary
    National Ambient Air Quality Standards for Sulfur Dixoide,
    
    75 Fed. Reg. 35,520
     (June 22, 2010).
    Facing a slew of new regulations, and frustrated by the
    delay, Avenal Power filed suit on March 9, 2010, in the
    United States District Court for the District of Columbia, to
    compel EPA to issue the Permit. Two months later, EPA
    requested that Avenal Power complete a cumulative air
    impact assessment of the Avenal Energy Project’s hourly
    NO2 emissions to address its compliance with the revised
    NAAQS. Although Avenal Power cooperated and submitted
    additional documentation, the process took months.
    In late August 2010, after the new NO2 and SO2 NAAQS
    had gone into effect, Avenal Power requested an expedited
    judgment on the pleadings from the D.C. district court in an
    effort to compel EPA to issue the Permit without
    consideration of the newly effective regulations. EPA
    opposed the motion, arguing that even though it missed the
    one-year statutory deadline to act on Avenal Power’s
    application, the Clean Air Act prohibits the agency from
    granting the Permit unless Avenal Power complies with the
    superseding standards. In support of its position, EPA cited
    public guidance issued by the Director of its Office of Air
    Quality Planning and Standards.1 See Memorandum from
    1
    We take judicial notice of this document as a public record. Fed. R.
    Evid. 201; Lee v. City of Los Angeles, 
    250 F.3d 668
    , 690 (9th Cir. 2001).
    SIERRA CLUB V. U.S. EPA                           9
    Stephen D. Page, EPA Office of Air Quality Planning and
    Standards, Applicability of the Federal Prevention of
    Significant Deterioration Permit Requirements to New and
    Revised National Ambient Air Quality Standards (Apr. 1,
    2010) (hereinafter “Page Memo”), available at
    http://www.epa.gov/region7/air/nsr/nsrmemos/psdnaaqs.pdf.
    EPA also promised the district court it would issue a final
    decision by December 31, 2010—that is, before the revised
    regulations on greenhouse gases went into effect on January
    2, 2011. It eventually became clear, however, that a final
    decision would not be forthcoming by that date, further
    forestalling administrative proceedings.2 And sure enough,
    the deadline passed without a final decision.
    At this point, after conducting what it described as a
    “policy review,” EPA reversed course. In a declaration
    submitted to the D.C. district court, EPA contended that
    “EPA believes it is appropriate to grandfather,” i.e., exempt,
    Avenal Power’s application from the NO2 and SO2 hourly
    NAAQS, and the BACT requirement for greenhouse gases.
    EPA concluded that it possessed inherent grandfathering
    authority even absent express authorization under the Clean
    Air Act or related regulations. The EPA Administrator then
    transferred authority to issue a final decision on Avenal
    Power’s application from the Regional Administrator for
    Region 9 to the Assistant Administrator for the Office of Air
    and Radiation. Consistent with its representation to the
    district court, EPA issued a Supplemental Statement of Basis
    2
    EPA apparently took the position that the Avenal Energy Project would
    not run afoul of the new SO2 hourly NAAQS. Nonetheless, EPA
    determined that compliance with the revised SO2 and greenhouse gases
    regulations would require further public notice and comment proceedings,
    as well as hearings.
    10                   SIERRA CLUB V. U.S. EPA
    proposing to grandfather the application under the old air
    quality standards in effect at the time the application was
    submitted.
    Petitioners submitted comments to EPA objecting to
    issuance of the Permit, and EPA’s assertion of grandfathering
    authority. On May 26, 2011, as the administrative process
    continued to drag on, the district court granted in part Avenal
    Power’s motion for judgment on the pleadings and ordered
    the EPA Administrator to render a decision by May 27, 2011,
    and a final, non-appealable, agency action ripe for judicial
    review by August 27, 2011. The next day, the Assistant
    Administrator for the Office and Air and Radiation published
    EPA’s responses to the public comments, and issued the
    Permit.
    Petitioners appealed to the Environmental Appeals Board,
    which declined to exercise jurisdiction to review EPA’s
    asserted grandfathering authority, given the time constraint
    imposed by the D.C. district court for a final administrative
    action, but otherwise upheld issuance of the Permit.3
    Petitioners timely filed two separate petitions for judicial
    review, chiefly challenging EPA’s interpretation of its
    statutory authority under the Clean Air Act.
    We have jurisdiction pursuant to 
    42 U.S.C. § 7607
    (b)(1),
    and consolidated the two petitions for review. Avenal Power
    3
    The Environmental Appeals Board also held that the Assistant
    Administrator (rather than the Regional Administrator) was authorized to
    issue the Permit, and that EPA’s environmental justice analysis comported
    with Executive Order 12898. Because we hold that EPA exceeded its
    statutory authority, we need not address the latter issue, which Petitioners
    also raise for review.
    SIERRA CLUB V. U.S. EPA                          11
    successfully moved to intervene in these proceedings, and the
    United Association of Plumbers and Pipefitters Local 246,
    International Brotherhood of Electric Workers Local 100, and
    Insulators Local 16 successfully moved to file a brief as amici
    curiae.
    ANALYSIS
    I
    As an initial matter, Avenal Power, though not EPA,
    suggests that Petitioners lack standing. It falls to Petitioners,
    as the parties invoking federal jurisdiction, to demonstrate
    standing.4 Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 561
    (1992). However, only one Petitioner must establish standing
    to enable review. Massachusetts v. EPA, 
    549 U.S. 497
    , 518
    (2007).
    “An association has standing to bring suit on behalf of its
    members when its members would otherwise have standing
    to sue in their own right, the interests at stake are germane to
    the organization’s purpose, and neither the claim asserted nor
    the relief requested requires the participation of individual
    members in the lawsuit.” Wilderness Soc’y, Inc. v. Rey,
    
    622 F.3d 1251
    , 1256 (9th Cir. 2010) (quoting Friends of the
    Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 
    528 U.S. 167
    , 181 (2000)). The record reflects, and Avenal Power
    4
    Petitioners were not required to establish standing before EPA, and
    they now seek leave to submit declarations to establish standing for
    purposes of this appeal. Avenal Power does not oppose the request, and
    we grant it. See Nw. Envt’l Def. Ctr. v. Bonneville Power Admin.,
    
    117 F.3d 1520
    , 1528 (9th Cir. 1997) (accepting supplemental affidavits in
    support of petitioners’ standing, where no such requirement applied in
    administrative proceedings).
    12               SIERRA CLUB V. U.S. EPA
    does not dispute, that “the interests at stake are germane” to
    Petitioners’ organizational interests, and that personal
    participation by Petitioners’ individual members is not
    necessary. 
    Id.
    The only question remaining, therefore, is whether
    Petitioners’ individual members have standing in their own
    right. On that score, Petitioners must first show that their
    members “have suffered an injury in fact—an invasion of a
    legally protected interest which is (a) concrete and
    particularized, and (b) actual or imminent, not conjectural or
    hypothetical.” Lujan, 
    504 U.S. at 560
     (internal quotation
    marks and citations omitted). “Second, there must be a causal
    connection between the injury and the conduct complained of
    . . . .” 
    Id.
     (citing Simon v. E. Ky. Welfare Rights Org.,
    
    426 U.S. 26
    , 41–42 (1976)). And finally, “the injury will
    [likely] be redressed by a favorable decision.” Id. at 561
    (internal quotation marks omitted) (citing Simon, 
    426 U.S. at 38, 43
    ).
    A
    We first consider whether Petitioners, through the
    declarations of their members, have established an injury in
    fact. “An individual bringing a substantive claim related to
    environmental harms may establish an injury in fact by
    showing ‘a connection to the area of concern sufficient to
    make credible the connection that the person’s life will be
    less enjoyable—that he or she really has or will suffer in his
    or her degree of aesthetic or recreational satisfaction—if the
    area in question remains or becomes environmentally
    degraded.’” W. Watersheds Project v. Kraayenbrink,
    
    632 F.3d 472
    , 484 (9th Cir. 2011) (quoting Ecol. Rights
    Found. v. Pac. Lumber Co., 
    230 F.3d 1141
    , 1149 (9th Cir.
    SIERRA CLUB V. U.S. EPA                     13
    2000)). In addition, “evidence of a credible threat to the
    plaintiff’s physical well-being from airborne pollutants” may
    establish an injury in fact. Hall v. Norton, 
    266 F.3d 969
    , 976
    (9th Cir. 2001).
    Here, although we have doubts as to the Sierra Club’s
    standing, we are satisfied that Greenaction for Health and
    Environmental Justice, Center for Biological Diversity, and
    El Pueblo para el Aire y Agua Limpio, possess associational
    standing to challenge EPA’s action.
    Marciela Mares-Alatorre, the leader of El Pueblo para el
    Aire y Agua Limpio, lives in Kettleman City, which is
    located approximately 10 miles from the site of the Avenal
    Energy Project. She was recently diagnosed with breathing
    difficulty and symptoms that indicate asthma, problems she
    avers are exacerbated when the air is more polluted. She
    fears that the pollution expected from the Avenal Energy
    Project will impair her health. Likewise, Mavi Sandoval, a
    member of El Pueblo para el Aire y Agua Limpio, as well as
    Center for Biological Diversity, lives in Kettleman City,
    works in Avenal, and states that she is concerned that her
    respiratory problems will also be exacerbated by pollution
    from the proposed plant. Maria Saucedo, a member of
    Greenaction for Health and Environmental Justice, lives in
    Avenal and avers that her husband and daughter suffer from
    serious respiratory problems associated with air pollution.
    She believes that air pollution created by the proposed facility
    may further jeopardize the health of her family, and impact
    her husband’s ability to work. These health threats are
    credible, concrete, and, assuming the Project goes forward,
    imminent—in sum, cognizable injuries in fact. 
    Id.
    14                SIERRA CLUB V. U.S. EPA
    B
    As to causation and redressability, it is undisputed that the
    Avenal Energy Project will generate many tons of air
    pollutants known to threaten public health, including NO2 and
    SO2. Further, EPA implemented the revised NO2 and SO2
    hourly NAAQS precisely because short-term exposure to
    those pollutants at ambient levels is associated with asthma
    and other respiratory ailments.               See 
    42 U.S.C. § 7408
    (a)(1)(A) (commanding EPA Administrator to identify
    and regulate “emissions which, in his judgment, cause or
    contribute to air pollution which may reasonably be
    anticipated to endanger public health or welfare”); see also
    Primary National Ambient Air Quality Standards for
    Nitrogen Dixoide, 75 Fed. Reg. at 6,479 (concluding that
    short-term exposure to ambient or near-ambient
    concentrations of NO2 increased airway irritation for
    asthmatic individuals), and Primary National Ambient Air
    Quality Standards for Sulfur Dixoide, 75 Fed. Reg. at 35,525
    (finding causal relationship between short-term exposure to
    ambient NO2 and asthma and other respiratory symptoms).
    EPA also noted in its Supplemental Statement of Basis that
    short-term exposure to NO2 likely causes adverse effects on
    the respiratory system. Given this record, we have little
    trouble concluding that NO2 and SO2 emissions from the
    proposed Project will likely cause the identified injuries.
    Indeed, remedying such injuries is exactly the purpose and
    function of these particular emissions limits, and more
    broadly, the Clean Air Act. It is therefore sufficiently clear
    that judicial review of EPA’s refusal to enforce the relevant
    regulations will provide Petitioners’ members with redress.
    Accordingly, we conclude that at least Greenaction for
    Health and Environmental Justice, Center for Biological
    SIERRA CLUB V. U.S. EPA                       15
    Diversity, and El Pueblo para el Aire y Agua Limpio, have
    association standing to proceed. We need not decide whether
    Sierra Club has standing. See Kaahumanu v. Hawaii,
    
    682 F.3d 789
    , 798 (9th Cir. 2012) (citing Watt v. Energy
    Educ. Found., 
    454 U.S. 151
    , 160 (1981) (“Because we hold
    that [one plaintiff] has Article III standing, we need not reach
    the question whether [another plaintiff] also has Article III
    standing”).
    II
    We now turn to the substance of Petitioners’ challenge,
    that is, whether EPA exceeded its authority under the Clean
    Air Act. When we review an agency’s interpretation of a
    statute that it is responsible for administering, “[f]irst, always,
    is the question whether Congress has directly spoken to the
    precise question at issue.” Chevron, 
    467 U.S. at 842
    . “If the
    intent of Congress is clear, that is the end of the matter; for
    the court, as well as the agency, must give effect to the
    unambiguously expressed intent of Congress.” 
    Id.
     at 842–43.
    Only if “the statute is silent or ambiguous,” 
    id. at 843
    , “‘must
    [we] decide how much weight to accord an agency’s
    interpretation.’” McMaster v. United States, 
    731 F.3d 881
    ,
    889 (9th Cir. 2013) (quoting Tualatin Valley Builders Supply,
    Inc. v. United States, 
    522 F.3d 937
    , 940 (9th Cir. 2008)).
    EPA contends there is ambiguity or tension between two
    mandates in the Clean Air Act—one, requiring it to enforce
    current NAAQS and BACT requirements, 
    42 U.S.C. § 7475
    (a)(1), (3)–(4), and the other, requiring EPA to act on
    applications within one year, 
    id.
     § 7475(c).               More
    specifically, EPA argues that the statute does not specify what
    it should do when, as was the case here, it failed to act by the
    statutory deadline, and revised air standards have been
    16                SIERRA CLUB V. U.S. EPA
    promulgated since the deadline passed. Thus, the argument
    goes, EPA’s decision to grant Avenal Power the Permit is
    entitled to Chevron deference. Petitioners, on the other hand,
    insist that the statutory language is clear—EPA must enforce
    the regulations in effect at the time the Permit was issued.
    A
    We begin with the statute “‘to determine whether the
    language at issue has a plain and unambiguous
    meaning. . . .’” Barnhart v. Sigmon Coal Co., 
    534 U.S. 438
    ,
    450 (2002) (quoting Robinson v. Shell Oil Co., 
    519 U.S. 337
    ,
    340 (1997)). In so inquiring, we must endeavor to read the
    Clean Air Act “‘as a symmetrical and coherent regulatory
    scheme,’” FDA v. Brown & Williamson Tobacco Corp.,
    
    529 U.S. 120
    , 133 (2000) (quoting Gustafson v. Alloyd Co.,
    
    513 U.S. 561
    , 569 (1995)), and “‘fit, if possible, all parts into
    a harmonious whole[.]’” 
    Id.
     (quoting FTC v. Mandel Bros.,
    Inc., 
    359 U.S. 385
    , 389 (1959)).
    The Clean Air Act states that “[n]o major emitting facility
    . . . may be constructed . . . unless”:
    (3) the owner or operator of such facility
    demonstrates, as required pursuant to section
    7410(j) of this title . . . that emissions from
    construction or operation of such facility will
    not cause, or contribute to, air pollution in
    excess of any . . . national ambient air quality
    standard in any air quality control region . . .
    [and]
    (4) the proposed facility is subject to the best
    available control technology for each
    SIERRA CLUB V. U.S. EPA                     17
    pollutant subject to regulation under this
    chapter emitted from, or which results from,
    such facility . . . .
    
    42 U.S.C. § 7475
    (a)(3)–(4) (emphasis added). The referenced
    portion of § 7410(j), in turn, provides:
    As a condition for issuance of any permit
    required by this subchapter, the owner or
    operator of each new or modified stationary
    source which is required to obtain such a
    permit must show to the satisfaction of the
    permitting authority that the technological
    system of continuous emission reduction
    which is to be used at such source will enable
    it to comply with the standards of
    performance which are to apply to such
    source . . . .
    Id. § 7410(j) (emphasis added). The plain language of the
    statute—which prohibits the construction of any “major
    emitting facility” and refers to “any . . . national ambient air
    quality standard,” and “the standards of performance which
    are to apply to such source[,]” as the applicable
    regulations—clearly requires EPA to apply the regulations in
    effect at the time of the permitting decision. 
    42 U.S.C. §§ 7475
    (a)(4), 7410(j); see also 
    40 C.F.R. § 52.21
    (k)
    (referring to “any national ambient air quality standard in any
    air quality control region”).
    Up until now, there has never been any doubt that Permit
    applicants must comply with current air quality control
    regulations and BACT requirements. Indeed, EPA initially
    advanced precisely this position against Avenal Power before
    18               SIERRA CLUB V. U.S. EPA
    the D.C. district court, based on the public guidance it had
    previously provided in the form of the Page Memo. To wit:
    EPA generally interprets the [Clean Air Act]
    and EPA’s . . . permitting program regulations
    to require that each final . . . permit decision
    reflect consideration of any NAAQS that is in
    effect at the time the permitting authority
    issues a final permit. As a general matter,
    permitting and licensing decisions of
    regulatory agencies must reflect the law in
    effect at the time the agency makes a final
    determination on a pending application.
    [internal citations omitted]. [ ¶] Consistent
    with such interpretations, EPA has previously
    concluded that the relevant provisions cover
    any NAAQS that is in effect at the time of
    issuance of any permit.
    Page Memo at 2 (emphasis added).
    EPA’s prior interpretation is supported by Supreme Court
    case law. For example, in Ziffrin, Inc. v. United States,
    
    318 U.S. 73
    , 78 (1943), petitioner Ziffrin Truck Lines
    challenged an order by the Interstate Commerce Commission
    (“ICC”) rejecting its application for a permit to continue
    operating as a common carrier, in an effort to claim the
    benefit of a grandfathering clause in the Interstate Commerce
    Act. While Ziffrin’s application was still pending before the
    ICC—after a hearing was held, but before the application was
    ultimately denied—Congress amended the Interstate
    Commerce Act to require a finding by the ICC that
    grandfathering such a permit would serve the public interest.
    
    Id. at 75
    . Applying the superseding requirement, the ICC
    SIERRA CLUB V. U.S. EPA                   19
    found grandfathering would not benefit the public, and denied
    Ziffrin a permit. The Supreme Court upheld the ICC’s
    decision, explaining: “We are convinced that the Commission
    was required to act under the law as it existed when its order
    of [denial], was entered.” 
    Id. at 78
    . The Court reasoned:
    A change in the law between a nisi prius and
    an appellate decision requires the appellate
    court to apply the changed law. A fortiori, a
    change of law pending an administrative
    hearing must be followed in relation to
    permits for future acts. Otherwise the
    administrative body would issue orders
    contrary to the existing legislation.
    
    Id.
     (citations omitted).
    General Motors Corp. v. United States, 
    496 U.S. 530
    , 540
    (1990), also provides support for the same basic principle that
    EPA is bound to enforce administrative guidelines in effect
    when it takes final action. Under certain provisions of the
    Clean Air Act not relevant to the present case, the states are
    required to propose State Implementation Plans to implement,
    maintain, and enforce NAAQS. See generally 
    42 U.S.C. § 7410
    (a)(1). The states also periodically revise the State
    Implementation Plans, with approval from EPA, which
    enforces them. 
    Id.
     § 7410(a)(2)(H). In General Motors, EPA
    moved to enforce certain provisions of Massachusetts’
    existing State Implementation Plan. General Motors argued
    that EPA lacked the authority to initiate enforcement
    proceedings because, under the Administrative Procedure
    Act, EPA had “unreasonably” delayed review of certain
    proposed revisions to the State Implementation Plan that
    would have relieved General Motors of liability. Id. at
    20               SIERRA CLUB V. U.S. EPA
    539–42. The Supreme Court disagreed. It held that EPA was
    authorized to enforce the then-existing State Implementation
    Plan regulations against General Motors, even assuming that,
    but for EPA’s alleged unreasonable delay, a superseding State
    Implementation Plan relieving the company of liability would
    be in effect. Id. at 540. The Court noted that “[t]here is
    nothing in the statute that limits EPA’s authority to enforce
    the ‘applicable implementation plan’ solely to those cases
    where EPA has not unreasonably delayed action on a
    proposed [State Implementation Plan] revision.” Id. at 541.
    The same is true here. Nothing in the statute precludes
    EPA from enforcing current NAAQS and BACT
    requirements even if it unreasonably delays taking action on
    a Permit. Moreover, the Clean Air Act is not silent about the
    consequences of such delay. “Congress has directly spoken
    to [that] precise issue”—namely, by providing a private right
    of action to compel timely action. Chevron, 
    467 U.S. at 842
    (emphasis added). Under 
    42 U.S.C. § 7604
    (a)(2):
    Except as provided in subsection (b) of this
    section, any person may commence a civil
    action on his own behalf . . . against the
    Administrator where there is alleged a failure
    of the Administrator to perform any act or
    duty under this chapter which is not
    discretionary with the Administrator.
    Avenal Power, of course, availed itself of this remedy and
    brought suit in the D.C. district court. That court, correctly
    in our view, did not find the appropriate remedy to be
    issuance of the Permit without regard to the newly-
    SIERRA CLUB V. U.S. EPA                            21
    promulgated regulations.5 Instead, it simply ordered the
    agency to come to a final decision. See Avenal Power Ctr.,
    LLC v. EPA, 
    787 F. Supp. 2d 1
    , 4–5 (D.D.C. 2011).
    Although EPA now maintains that, having missed the
    deadline to act, it cannot determine from the statute which
    substantive standards to enforce against Avenal Power, we
    discern no such uncertainty, and reject the agency’s position
    that it possesses the power to resolve the matter as it sees fit.
    First of all, as a general matter, the agency’s “authority and
    responsibility to resolve some questions left open by
    Congress that arise during the law’s administration” does not
    extend to “include a power to revise clear statutory terms that
    turn out not to work in practice.” Utility Air Regulatory Grp.
    v. EPA, No. 12-1146, — S. Ct. —, 
    2014 WL 2807314
    , at *13
    (June 23, 2014) (citing Barnhart, 
    534 U.S. at 462
    ). In other
    5
    We find Brock v. Pierce Cnty., 
    476 U.S. 253
    , 256 (1986), instructive
    in this regard. In Brock, a since-repealed provision of the Comprehensive
    Employment and Training Act required the Secretary of Labor to issue a
    final determination as to the misuse of certain funds within 120 days after
    receipt of a complaint alleging misuse. 
    Id.
     Although the statute used
    mandatory language requiring the Secretary to investigate and issue
    formal findings, it did not specify consequences for the Secretary’s failure
    to act. 
    Id.
     at 258–59. The Court rejected the argument that the 120-day
    period was a statute of limitations that barred the Secretary from taking
    further action on the complaint after the 120-day period expired,
    reasoning: “We would be most reluctant to conclude that every failure of
    an agency to observe a procedural requirement voids subsequent agency
    action, especially when important public rights are at stake.” 
    Id. at 260
    .
    And the Court then concluded, instead: “When, as here, there are less
    drastic remedies available for failure to meet a statutory deadline, courts
    should not assume that Congress intended the agency to lose its power to
    act.” 
    Id.
     (footnote omitted). The appropriate relief, the Court noted, was
    an order compelling the agency to act. 
    Id.
     at 260 n.7.
    22                  SIERRA CLUB V. U.S. EPA
    words, “[a]n agency confronting resource constraints may
    change its own conduct, but it cannot change the law.” 
    Id.
    Moreover, as for the particular proceedings at issue here,
    we do not believe EPA’s legal or practical options were so
    conflicted, or even very uncertain. Although Petitioners
    suggest that EPA must deny a Permit application if it cannot
    perform the required review within the one-year limit, that
    does not appear to have been the agency’s only option.6 Even
    after the deadline passes, at least absent suit, EPA could
    presumably work with the applicant to ensure compliance
    with whatever regulations are in effect, and then issue or deny
    a Permit accordingly. In fact, that is what happened here:
    well after the deadline passed, EPA requested, and Avenal
    Power endeavored to provide, documentation demonstrating
    the Avenal Energy Project’s compliance with the intervening
    NO2 NAAQS. Ultimately, those efforts failed because
    Avenal Power could not demonstrate compliance with the
    Clean Air Act’s requirements by the date set by the D.C.
    district court (a deadline imposed upon Avenal Power’s own
    motion). But the parties’ protracted negotiation of the Clean
    Air Act’s requirements— frustrating and burdensome though
    it may have been in this case—does not endow the EPA with
    authority simply to waive the newly effective regulations on
    an ad hoc basis by “rewriting unambiguous statutory terms”
    in order to serve its own “bureaucratic policy goals.” 
    Id.
    6
    We need not decide whether a petitioner, other than the Permit
    applicant, could sue EPA under 
    42 U.S.C. §§ 7604
    (a)(2), 7475(c), with the
    ultimate effect of forcing the agency to deny, without delay, a non-
    compliant Permit application.
    SIERRA CLUB V. U.S. EPA                       23
    B
    In an effort to bolster its position, EPA points out that it
    has long exercised authority to grandfather certain permit
    applications from revised regulations. That is true: EPA first
    asserted grandfathering authority shortly after the 1977
    Amendments to the Clean Air Act passed. The issue at that
    time was a conflict between two apparently inconsistent
    provisions of the Clean Air Act—§ 165’s enforcement
    requirements, and § 168’s statutory grandfathering measures.
    See Citizens to Save Spencer Cnty. v. EPA, 
    600 F.2d 844
    ,
    853–54 (D.C. Cir. 1979) (“[§] 168 would have the practical
    effect of allowing permits to be issued for the construction of
    many projects for which permits would be barred by the
    rigorous environmental standards of [§] 165” ). EPA
    ultimately chose not to make § 165 immediately effective,
    and grandfathered certain projects from its requirements. See
    1977 Clean Air Act Amendments to Prevent Significant
    Deterioration, 
    43 Fed. Reg. 26,388
    , 26,391 (June 19, 1978)
    (adopting grandfathering for new permitting requirements for
    “any source the evaluation of which EPA would have
    completed before March 1, 1978, but for an extension of the
    public comment period pursuant to a meritorious request for
    such an extension”). The D.C. Circuit upheld the agency’s
    decision in an opinion rendered prior to Chevron. 
    Id.
     at
    881–84. But EPA’s decision, and the court’s analysis, in that
    distinct statutory context does not resolve the question
    presented here.7
    7
    To be clear, we do not doubt, or express any opinion on, EPA’s
    traditional authority to employ formal rulemaking to implement
    grandfathering.
    24               SIERRA CLUB V. U.S. EPA
    Since then, EPA has invoked grandfathering authority
    from time to time to exempt certain projects from newly-
    implemented NAAQS and BACT regulations. But EPA’s
    traditional exercise of grandfathering authority does not at all
    resemble the ad hoc discretion the agency now claims to
    wield. When EPA implemented grandfathering in the past,
    it consistently did so through formal notice and comment
    rulemaking procedures, as expressly authorized by the Clean
    Air Act, 
    42 U.S.C. § 7601
    (a)(1), and the Administrative
    Procedure Act, 
    5 U.S.C. § 553
    . For example, just last year,
    when EPA implemented new standards for particulate matter
    (“PM”), it implemented grandfathering to smooth the
    transition process. As the agency explained:
    In addition to today’s revisions to the primary
    annual the PM2.5 NAAQS, EPA is taking final
    action on a PSD implementation provision.
    To facilitate timely implementation of the
    PSD requirements resulting from the revised
    NAAQS, which would otherwise become
    applicable to all PSD permit applications upon
    the effective date of this final PM NAAQS
    rule, the EPA is finalizing a grandfathering
    provision for pending permit applications.
    This final rule incorporates revisions to the
    PSD regulations that provide for
    grandfathering of PSD permit applications
    that have been determined to be complete on
    or before December 14, 2012 or for which
    public notice of a draft permit or preliminary
    determination has been published as of the
    effective date of today’s revised PM2.5
    NAAQS.
    SIERRA CLUB V. U.S. EPA                           25
    National Ambient Air Quality Standards for Particulate
    Matter, 
    78 Fed. Reg. 3,086
    , 3,249 (Jan. 15, 2013).
    There is a significant difference between EPA’s
    traditional grandfathering and its waiver of current applicable
    regulations in this case. On almost every prior occasion, EPA
    grandfathered a limited set of applications, in effect, by
    specifying an operative date (or dates) for each new
    regulation, as it was formally adopted.8 In contrast to the ad
    hoc waiver here, the former procedure does not, on its face,
    violate the plain statutory mandate to enforce whatever
    regulations are in effect at the time the agency makes a final
    decision. That is because, in the past, EPA simply identified
    an operative date, incident to setting the new substantive
    standard, and the grandfathering of pending permit
    applications was explicitly built into the new regulations. See
    Morton v. Ruiz, 
    415 U.S. 199
    , 231–32 (1974) (holding that
    “[t]he power of an administrative agency to administer a
    congressionally created and funded program necessarily
    requires the formulation of policy and the making of rules to
    fill any gap left, implicitly or explicitly, by Congress[,]” but
    noting that “[n]o matter how rational or consistent with
    8
    See, e.g., Requirements for Preparation, Adoption, and Submittal of
    Implementation Plans; Approval and Promulgation of Implementation
    Plans, 
    45 Fed. Reg. 52,676
    , 52,681–83 (Aug. 7, 1980) (implementing
    grandfathering provision to facilitate implementation of new definitions
    of key terms and revised regulations); Regulations for Implementing
    Revised Particulate Matter Standards, 
    52 Fed. Reg. 24,672
    , 24,683 (July
    1, 1987) (implementing grandfathering for newly promulgated NAAQS);
    Prevention of Significant Deterioration for Nitrogen Oxides, 
    53 Fed. Reg. 40,656
    , 40,659 (Oct. 17, 1988) (same); Prevention of Significant
    Deterioration for Particulate Matter, 
    58 Fed. Reg. 31,622
    , 31,632–33 (June
    3, 1993) (same).
    26                  SIERRA CLUB V. U.S. EPA
    congressional intent a particular decision might be, [such
    decision] cannot be made on an ad hoc basis . . . ”).
    The issue here is distinct. EPA now claims the authority
    to waive the law’s requirements at will, without regard to the
    regulations it has passed,9 and without any precedential value
    one way or another for future parties. That unbounded
    discretion exceeds the agency’s authority. We cannot discern
    any ambiguity or conflict between the Clean Air Act’s
    enforcement requirements, and the statutory decision making
    deadline. And the statute does not permit EPA to waive
    current NAAQS and BACT requirements whenever it finds
    it convenient to do so. The foregoing conclusion ends the
    inquiry. Barnhart, 
    534 U.S. at 450
    ; Chevron, 
    467 U.S. at
    842–43. Congress has spoken, and at least without applicable
    grandfathering provisions in the relevant regulations, EPA
    must enforce the regulations in effect at the time each Permit
    is issued, as the Clean Air Act clearly requires.
    C
    Finally, EPA relies heavily on the argument that the
    equities weigh in favor of Avenal Power. In short, we agree.
    Avenal Power filed its application over six years ago, and
    endeavored to work with EPA for years, even after filing suit,
    to obtain a final decision. But however regrettable EPA’s
    treatment of Avenal Power has been, we simply cannot
    disregard the plain language of the Clean Air Act, or overlook
    9
    In fact, EPA expressly refused to adopt a grandfathering provision in
    connection with its promulgation of the greenhouse gases regulation at
    issue in this litigation. See Reconsideration of Interpretation of
    Regulations That Determine Pollutants Covered by Clean Air Act
    Permitting Programs, 75 Fed. Reg. at 17,021–22.
    SIERRA CLUB V. U.S. EPA                   27
    the reason why an applicant must comply with revised and
    newly stringent standards —that is, “to protect and enhance
    the quality of the Nation’s air resources so as to promote the
    public health and welfare and the productive capacity of its
    population.” 
    42 U.S.C. § 7401
    (b)(1). Honoring the statute’s
    plain language and overriding purpose, we must send EPA
    and Avenal Power back to the drawing board.
    CONCLUSION
    For the foregoing reasons, we GRANT the Petition for
    review, VACATE the decision to issue the Permit, and
    REMAND for proceedings consistent with this opinion.
    Petitioners, as the prevailing parties, may recover the costs
    and fees incurred in this litigation from EPA. 
    42 U.S.C. § 7607
    (f); Fed. R. App. P. 39(a)–(b).