Opposition Brief — National Parks Conservation Association v. Tennessee Valley Authority (No. 07-867)

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No. 07-867 | OFFICE OF THE yey

In the Supreme Court of the United States

NATIONAL PARKS CONSERVATION ASSOCIATION,

ET AL., PETITIONERS

Vv.

TENNESSEE VALLEY AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

RONALD J. TENPAS

Assistant Attorney General

ELLEN DURKEE

R. JUSTIN SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

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QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding

that the pre-1985 version of Alabama’s Clean Air Act

State Implementation Plan (SIP) did not impose an on-

going obligation to comply with the SIP’s New Source

Review requirements, as implemented through a pre-

construction permitting program.

2. Whether the court of appeals erred in concluding

that petitioners’ claims for equitable relief were subject

to the same five-year limitation period that applies to

claims for civil penalties under 28 U.S.C. 2462.

3. Whether petitioners’ pre-suit notice was suffi-

ciently specific with respect to petitioners’ claims under

the Clean Air Act's New Source Performance Standards.

(I)

TABLE OF CONTENTS

Page

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ON oe, ca wen kek aca bks Oi ec Kens es 28

TABLE OF AUTHORITIES

Cases:

A-C Reorganization Trust v. E.I. DuPont de

Nemours & Co., 968 F. Supp. 423 (B.D. Wis. 1997) ... 25

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.

BP oo oes os as ieee nse ca hd ewo canes 19

American Cyanamid Co. v. United States EPA,

SiG © a Ss Cth Or. A987) oo. oa hdc ccc eects 13

Carr v. Alta Verde Indus., Inc., 931 F.2d 1055 (5th

RE ig ea oo oo on lee So rec eels gees 18

Catellus Dev. Corp. v. L.D. McFarland Co., 910

ee er TD aoe a eo i ae i 8 25

Catskill Mountains Chapter of Trout Unlimited, Inc.

v. City of New York, 273 F.3d 481 (2d Cir. 2001) ..... 27

Cope v. Anderson, 331 U.S. 461 (1947) ................ 24

E.I. DuPont de Nemours & Co. v. Davis, 264 U.S. 456

RRs ok hoes ce Subaesine eae’ ha sade 26

Environmental Def. v. Duke Energy Corp., 1278. Ct.

Te RRS SNA AND Go SUR pred a ig ae a 2

FEC v. Williams, 104 F.3d 237 (9th Cir. 1996), cert.

semana, CEP TS. TOTS GT) 6 aes ved eres OD

Halistrom v. Tillamook County, 493 U.S. 20 (1989). .... 27

(IIT)

Cases—Continued: Page

Harmon Indus., Inc. v. Browner, 19 F. Supp. 2d 988

(W.D. Mo. 1998), aff'd, 191 F.3d 894 (8th Cir. 1999) ... 19

Leavitt v. TVA, 541 U.S. 1080 (2004) ...............008. 9

Lefebvre v. Central Me. Power Co.,7 F. Supp. 2d 64

Ca SIE ie os ie Sav Sb PN ke ee bed C4 dhe 08 25

National Parks Conservation Ass’n v. TVA, 480 F.3d

410 (6th Cir. 2007) ........ See Oo OC eee. 10, 14, 20

National R.R. Passenger Corp. v. Morgan, 536 U.S.

ROE CGE) ooo: a 3s te BARE aA ede ata e tbe 6

Navistar Int'l Transp. Corp. v. EPA, 858 F.2d 282

(6th Cir. 1988), cert. denied, 490 U.S. 1089 (1989) .... 13

Newell Recycling Co. v. United States EPA, 231 F.3d

204 (5th Cir. 2000), cert. denied, 534 U.S. 815 (2001) .. 18

North Star Steel Co. v. Thomas, 515 U.S. 29 (1995) ..... 23

Public Interest Research Group of N.J., Inc. v. Powell

Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir.

1990), cert. denied, 498 U.S. 1109 (1991) ............ 24

San Francisco Baykeeper v. Cargill Salt Div., 263

ae I) ick eek wiv inc ck es veesuwes 25

Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517

og isi sick note dee eee ceeebasevews 24

Sierra Club v. Administrator, United States EPA,

MI ae ae ai DT) sos ooo iis calc aees 13

Sierra Club v. Georgia Power Co., 443 F.3d 1346

Pe I oh a eee weal go es X ba ke ceeuesas 17

. Sierra Club v. TVA, 430 F.3d 1337 (11th Cir. 2005) ...... 5

TVA v. Whitman, 336 F.3d 1236 (11th Cir. 2003), cert.

denied, 541 U.S, 1080 (004) 2... cc ccc ccc cee coene 4

Cases—Continued: | Page

United States v. Banks, 115 F.3d 916 (11th Cir. 1997),

cert. denied, 522 U.S. 1075 (1998) ............. 8, 25, 26

United States v. Cinergy Corp., 458 F.3d 705 (7th Cir.

2006), cert. denied, 127 S. Ct. 2034 (2007) ........... 19

United States v. Duke Energy Corp., 278 F. Supp. 2d

619 (M.D.N.C. 2003), affd on other grounds, 411

F.3d 539 (4th Cir. 2005), vacated on other grounds

sub nom. Environmental Def. v. Duke Energy

COPD eet es POD 5 oc cabs ccetidccccensss 17

United States v. Knight, 39 U.S. (14 Pet.) 301 (1840) .... 26

United States v. Marine Shale Processors, 81 F.3d

eo Cr very Per ere 16, 17

United States v. Nashville, Chattanooga & St. Louis

i A i A od a ak wep ce vccacccucs 26

United States v. Telluride Co., 146 F.3d 1241 (10th

GN 6 od 0 9 in bbs v's oe eke Ee Sees lies i 8 wae 25

Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901

re a Sows ccdsdbanccouscden ese 19

Statutes, regulations and rule:

Clean Air Act, 42 U.S.C. 7401 et seg. ........... cece eeee 2

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Statutes, regulations and rule—Continued: © Page

42 U.S.C. T413(eX2) .........5..- Fee eae! ee

' < 42 U.S.C. 7470 et seg. (Ch. 85, Subch. I, Pt. O) eee 19

42 U.S.C. 7470-7479. ...... See pee eee ae oe

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42 U.S.C. 7501-7515 (2000 & Supp. V 2005). .......... 2

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A REMRAL POI Wedd a ab Nea kan echt Tes Pierre:

VII

Statutes, regulations and rule—Continued: Page

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28 U.S.C. 519... 0... eee eee eee sense eee eene a aore

28 U.S.C. 1658 (Supp. V 2005) .............. aur een te 23

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Tennessee Valley Authority Act of 1933, 16 U.S.C.

831-83lee (2000 & Supp. V 2005) ............. > mk ee 3

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40 C.F.R.:

Pt. 51:

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Pt. 52:

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Pt. 60:

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Pt. 70:

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Pt. 135:

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Ala. Air Pollution Control Comm’n Reg.:

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Regulations and rule—Continued: Page

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Fla. Admin. Code Ann.:

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Ga. Comp. R. & Regs. r. 391-3-1-.02(1)(c) (1992) ........ 20

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Miscellaneous:

136 Cong. Rec. (1990):

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45 Fed. Reg. (1980):

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H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) ........ 19

Fowler V. Harper et al., The Law of Torts (3d ed.

DPR EL Lachawad'pWbesentoebigedubescecccecs 18

William L. Prosser, Handbook of the Law of Torts

Oe aig de cca kawebndd en buKS 18

In the Supreme Court of the Gnited States

No. 07-867

NATIONAL PARKS CONSERVATION ASSOCIATION,

ET AL., PETITIONERS J

v.

TENNESSEE VALLEY AUTHORITY

ON PETITION FOR A WRIT OF CERTIORARI a

TO THE UNITED STATES COURT OF APPEALS |

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-31a)

is reported at 502 F.3d 1316. A decision of the district

court (Pet. App. 32a-47a) is reported at 413 F. Supp. 2d

1282. Previous orders of the district court are unre-

ported.

JURISDICTION

The judgment of the court of appeals was entered on

October 4, 2007. The petition for a writ of certiorari was

filed on January 2, 2008. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. The Clean Air Act (CAA), 42 U.S.C. 7401 et seq.,

was enacted “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 popula-

tion.” 42 U.S.C. 7401(b)(1). In,1970, Congress added

the New Source Performance Standards (NSPS) pro-

gram, which establishes performance standards for new

or modified pollutant-emitting facilities in certain cate-

gories. See 42 U.S.C. 7411. In 1977, Congress further

amended the CAA by establishing the New Source Re-

view (NSR) program, which addresses the impact on

ambient air quality resulting from newly constructed or

modified pollutant-emitting facilities. The NSR pro-

gram has two elements: a Prevention of Significant De-

terioration (PSD) program applying in areas of the

country that do not violate ambient air quality stan-

dards, 42 U.S.C. 7470-7479, and a Nonattainment NSR

(NNSR) program for areas that fail to satisfy ambient

air quality standards, 42 U.S.C. 7501-7515 (2000 & Supp.

V 2005). See generally Environmental Def. v. Duke

Energy Corp., 127 S. Ct. 1423, 1429 (2007) (discussing

purpose of NSR program).

Under the PSD program, “[{n]Jo major emitting facil-

ity * * * may be constructed” or modified without first

meeting several requirements. 42 U.S.C. 7475(a); see 42

U.S.C. 7479(2)(C) (“construction” includes “modifica-

tion” as defined in 42 U.S.C. 7411(a)); Duke Energy, 127

S. Ct. at 1429. Among those requirements, a facility

must obtain a permit for the construction or modifica-

tion “setting forth emission limitations * * * which

conform to [the CAA],” and must be “subject to the best

available control technology,” or BACT, “for each pollut-

ant subject to regulation.” 42 U.S.C. 7475(a)(1) and (4).

3

As relevant here, the NNSR program’s requirements

are generally similar to those of the PSD program, see,

e.g.,42 U.S.C. 7503(a), although the pertinent provisions

of the NNSR program require that a source meet the

“lowest achievable emission rate” rather than apply

BACT, 42 U.S.C. 7503(a)(2).

States may implement many of the CAA’s provisions,

including the PSD and NNSR programs, by adopting a

State Implementation Plan (SIP). SIPs must meet fed-

eral standards, are subject to review and approval by

the Environmental Protection Agency (EPA), and are

federally enforceable once approved. See 42 U.S.C.

7410(a)(2)(D) and (k), 7413, 7471; 40 C.F.R. 51.166(a)(6).

.. -Alabama’s SIP has.included an EPA-approved PSD |

program since 1981. 46 Fed. Reg. 55,517 (approving

initial Alabama PSD regulations). The SIP’s provisions

prohibit construction of any major stationary source or

major modification without complying with the require-

ments of the PSD program. Ala. Air Pollution Control

Comm’n Reg. § 16.4.8 (1981). Alabama’s SIP, including

the PSD program, was revised in 1985. Pet. App. 20a.

The United States has authority to enforce SIP re-

quirements in federal court. 42 U.S.C. 7413. The CAA

also authorizes citizen suits for, inter alia, the violation

of any emission standard or limitation established under

the Act, including the violation of “any requirement to

obtain a permit as a condition of operations.” 42 U.S.C.

7604(a)(1) and (f).

2. The Tennessee Valley Authority (TVA) is a corpo-

rate agency and instrumentality of the United States,

created and existing pursuant to the Tennessee Valley

Authority Act of 1933, 16 U.S.C. 831-83lee (2000 &

Supp. V 2005). TVA operates numerous electricity gen-

erating facilities in the southern United States.

4

In 1982 and 1983, TVA undertook a project to over-

haul Unit 5 of its Colbert Fossil Plant (Colbert Unit 5),

a coal-burning facility located in northwestern Alabama.

TVA had a general Alabama operating permit for that

unit, but did not seek a PSD permit for the new con-

struction. Pet. App. 3a.

In 1999, EPA concluded that modifications to TVA’s

facilities, including Colbert Unit 5, were in violation of

the CAA’s NSR requirements and other provisions of

law. EPA issued an administrative order directing TVA

to comply with the CAA. TVA petitioned for review of

that order in the Eleventh Circuit, which concluded that

EPA’s administrative proceedings, and the CAA provi-

sion under which the order was issued, violated due pro-

cess. TVA v. Whitman, 336 F.3d 1236, 1244, 1260 (2003),

cert. denied, 541 U.S. 1030 (2004). The court then held

that the unconstitutionality of the CAA provision meant

that EPA’s order was not a “final agency action” and

that the court of appeals therefore lacked jurisdiction to

review it. See id. at 1248, 1260.

3. In October 2000, while EPA’s administrative or-

der was still being litigated, petitioners sent TVA a let-

ter notifying it of petitioners’ belief that Colbert Unit 5

was in violation of the CAA. Pet. App. 133a-152a. The

letter asserted that TVA had undertaken a major modi-

fication at Colbert Unit 5 without a PSD or NNSR per-

mit, and that the modified Colbert Unit 5 violated the

applicable NSPS standards—specifically, “all the re-

quirements of Subpart Da” of 40 C.F.R. Pt. 60. Pet.

App. 146a-147a, 148a-149a.

Petitioners then filed this citizen suit against TVA in

the United States District Court for the Northern Dis-

trict of Alabama. Petitioners, asserting that the project

at Colbert Unit 5 was a “modification” that triggered the

5

NSR and NSPS requirements of the CAA, sought civil

penalties and declaratory and injunctive relief. See Pet.

App. 7a, 53a, 98a-94a. TVA moved to dismiss, asserting,

inter alia, that claims for civil penalties would be barred

by the five-year statute of limitations in 28 U.S.C. 2462;

that the claims for injunctive and declaratory relief were

accordingly barred as well; and that petitioners had not

provided adequate notice of their NSPS claim before

filing suit, as required by 42 U.S.C. 7604(b)(1)(A).’

The district court agreed and granted summary

judgment for TVA. Pet. App. 7la-838a (granting sum-

mary judgment on the NSPS claim for failure to provide

adequate pre-suit notice); zd. at 119a-130a (granting

summary judgment on the PSD and NNSR claims for

failure to comply with the five-year statute of limita-

tions).’ Petitioners appealed only as to their claims for

equitable relief.

4, The court of appeals affirmed. Pet. App. la-31a.

' Petitioners also sought partial summary judgment on the merits,

which the district court denied on September 7, 2005, finding that issues

of material fact were disputed. Petitioners appealed that decision as

well, but the court of appeals did not address the underlying merits

because it held the claims time-barred (Pet. App. 31a), and the merits

issues are not encompassed within the petition. Petitioners err in

describing as “undisputed” their assertion that the 1982-1983 projects

“tncrease[d] the unit’s pre-project capacity by 100 megawatts.” Pet. 8-9

& n.3. TVA disputed below, and continues to dispute, that assertion.

See, e.g., TVA C.A. Br. 50-51.

2 Inaseparate proceeding involving Sierra Club and TVA, the court

of appeals had held that TVA’s.sovereign immunity barred petitioners

from seeking civil penalties. Sierra Club v. TVA, 430 F.3d 1337, 1353-

1357 (11th Cir. 2005). The district court accordingly dismissed the civil-

penalty claims in this case, Pet. App. 89a-90a; plaintiffs did not appeal

that issue.

6

a. Section 2462 provides that a claim for civil penal-

ties is barred “unless commenced within five years from

the date when the claim first accrued.” Petitioners con-

tended that their NSR claims were not time-barred be-

cause TVA’s failure to comply with NSR requirements

was an ongoing violation of the CAA, accruing anew each

day that the unauthorized modification was operated.

The court of appeals disagreed.’

The court stated that “the Alabama regulations in

force at the time of TVA’s work on Unit 5 * * * govern

our inquiry.” Pet. App. 17a. Examining those regula-

tions as they existed in 1982, the court concluded that

they had created only “a prerequisite for approval of the

modification, not a condition of Unit 5’s lawful opera-

tion.” Ibid. Thus, the court held, the Alabama regula-

tions imposed a one-time obligation to satisfy the stat-

ute’s permitting requirements, not an ongoing one that

was violated anew each day. Because the obligation ap-

_ plied only at the time of construction, petitioners’ claim

had long since become barred by the five-year statute of

* The court of appeals referred to petitioners’ theory as invoking “the

continuing violations doctrine.” Pet. App. 12a. Variations of that

phrase have been used to describe several different legal rules, includ-

ing a rule that a course of conduct, occurring over time, can constitute

a single violation of law. Compare, e.g., National R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 118 (2002) (“({T]he incidents constituting a

hostile work environment are part of one unlawful employment prac-

tice, [and] the employer may be liable for all acts that are part of this

single claim.”), with id. at 125 (O’Connor, J., concurring in part and

dissenting in part) (“[A] hostile environment is a form of discrimination

that occurs every day; some of those daily occurrences may be time

barred, while others are not.”). In this case, petitioners contend (Pet.

19-20) that TVA’s operation of Colbert Unit 5 amounted to a new vio-

lation each day. For clarity, this brief describes the legal issue as

whether TVA’s alleged actions were an “ongoing” violation.

ed et Sr >

y

os

limitations. Jd. at 12a-14a. The court of appeals recog-

nized that other courts had found an ongoing obligation

to comply with those requirements, but concluded that

the state programs in those cases had differed in impor-

tant respects from the Alabama SIP that was in force in

1982. Id. at 14a, 19a. “Were this case governed by [an-

other State’s] environmental regulations,” the court ac-

knowledged, the outcome might well be different, but

“an important difference” in Alabama’s SIP “ultimately

preclude[d]” the court of appeals from accepting petition-

ers’ ongoing-obligation theory. /d. at 16a, 18a-19a. Spe-

cifically, the court thought that the Alabama regulations

provided no way (and thus no obligation) to obtain a con-

struction permit once a modification had already been

completed. See id. at 18a.

The court of appeals recognized that in 1985, Ala-

bama had amended its SIP to require an Air Permit as

a condition of both construction and operation. Pet.

App. 20a. The court viewed those amendments as hav-

ing “no significance” for this case, however, because

they had not been in force when Colbert Unit 5 was

modified between 1982 and 1983, and because. petition-

ers’ pre-1985 operating permit grandfathered it into the

post-1985 regulatory regime, which did not create retro-

active liability. 7d. at 20a-21a.

b. The court of appeals recognized that Section 2462

applies on its face only to “an action, suit or proceeding

for the enforcement of any civil fine, penalty, or forfei-

- ture,” not to claims purely for injunctive relief. Pet.

App. 22a. Petitioners therefore argued that neither Sec-

tion 2462 nor any other statute of limitations should ap-

ply to their claims for equitabie relief. The court of ap-

peals disagreed. Under the “concurrent remedy doc-

trine,” the court held, “where a party’s legal remedies

8

are time-barred, that party’s concurrent equitable

claims generally are barred” by the same time limita-

tion. /bid. That doctrine foreclosed peathoners, equita-

ble claims. /d. at 22a-25a.

The Eleventh Circuit has held that the concurrent

remedy doctrine does not apply to “claims brought by

the federal government in its sovereign capacity.” Pet.

App. 22a (quoting United States v. Banks, 115 F.3d 916,

919 (11th Cir. 1997), cert. denied, 522 U.S. 1075 (1998)).

Petitioners contended that the same rule should apply to

them because their citizen suit is in the nature of a “pri-

vate attorney general” action. The court of appeals dis-

agreed, because under the CAA petitioners were “acting

‘on [their] own behalf.” Jd. at 28a (quoting 42 U.S.C.

7604(a)). The court accordingly declined to “expand[]

the governmental exception” to the concurrent remedy

doctrine. bid.

c. As to petitioners’ NSPS claims, the court of ap-

peals held that the pre-suit notice letter was inadequate

because it was too broad and general. In the court’s

-view, petitioners had “failed to provide enough -informa-

tion to permit TVA to identify the allegedly violated

standards, dates of violation, and relevant activities with

the degree of specificity required by the regulations.”

Pet. App. 29a. The notice “broadly alleged daily viola-

tions of an entire set of regulations,” Subpart Da, “with-

out specifically identifying the individual alleged viola-

tions and dates.” Jd. at 25a. Subpart Da sets emission

standards and other requirements for three pollutants.

The suit alleged only noncompliance with the sulfur di-

oxide standard, which was “a much narrower claim” not

particularly identified in petitioners’ notice letter. See

id. at 29a. Accordingly, the court of appeals affirmed

9

the dismissal of the NSPS claim for lack.of proper pre-

suit notice. Jd. at 30a.

ARGUMENT

Further review is not warranted in this case. Al-

though the court of appeals incorrectly treated petition-

ers’ allegations as stating only a past violation, it did so

principally in reliance on a misunderstanding regarding

now-superseded provisions of a single State’s pollution-

control regulations.* That error is narrowly cabined and

does not create a square conflict among the circuits that

calls for resolution by this Court at this time. The court

of appeals’ other holdings—that private claims for equi-

table relief are subject to a time limit and that the par-

ticular pre-suit notice filed in this case was insufficiently

specific—do not conflict with any decision of this Court

or any other court of appeals or otherwise warrant this

Court’s plenary consideration. |

1. The court of appeals misunderstood a number of

features of the pre-1985 Alabama SIP provisions and the

CAA scheme within which they operated, and the court’s

conclusion that those provisions did not create an ongo-

ing obligation to comply was accordingly erroneous. The

* The Eleventh Circuit has held that TVA has independent litigating

authority in the lower courts, a conclusion with which the United States

disagrees. See Pet. at 23-27, Leavitt v. TVA, 541 U.S. 1030 (2004) (No.

03-1162). Here, TVA argued to the district court and the court of

appeals that petitioners’ claims were time-barred because they did not

allege a violation of an ongoing obligation. The Solicitor General,

pursuant to his statutory and regulatory authority to determine the

litigating position of the United States and its agencies and instrumen-

talities in cases brought before this Court (see 28 U.S.C. 516, 518(a),

519; 28 C.F.R. 0.20(a)), has considered competing views within the

Executive Branch in arriving at a single, unified position for the federal

government as a whole, which is set forth in this brief.

10

court acknowledged, however, that petitioners’ claims

likely would not be time-barred if Alabama’s SIP were

structured to create an ongoing obligation, and it ex-

pressly declined to apply the provisions of Alabama’s

amended SIP to this case. The court’s conclusion that

Section 2462’s time bar applied was therefore based on

_ the interpretation of now-superseded state regulations,

an issue that does not warrant further review.°

_a. The court of appeals reasoned that Alabama’s pre-

1985 SIP did not create a continuing obligation because

the court was “not aware” of any provision in that SIP

allowing a construction permit to be issued after comple-

tion of an unauthorized major modification or construc-

tion. Pet. App. 19a. That omission, the court of appeals

asserted, showed that the SIP did not condition the law-

ful operation of a modified source on compliance with

PSD requirements. See id. at 18a-19a. In the court’s

view, it was therefore “preclude(d]” from following the

Sixth Circuit’s holding in National Parks Conservation

Ass’n v. TVA, 480 F.3d 410 (2007) (National. Parks).

Pet. App. 19a. In that case, petitioners challenged an

overhaul at another TVA plant (in Tennessee). The

Sixth Circuit concluded that although the alleged modifi-

cation had taken place more than five years before the

complaint was filed, the operation of the unpermitted

modification (assuming arguendo that it was a “modifi-

cation” for PSD purposes) was a recurring violation, and

a violation therefore had occurred within the five-year

limitation period. 480 F.3d at 417, 418-419. The court

® Petitioners’ complaint and the parties’ briefs addressed claims

arising under both the PSD and the NNSR provisions of the CAA. The

court of appeals stated that “[t]he distinction between these two pro-

grams does not affect our analysis.” Pet. App. 5a n.1.

11

based that conclusion on a provision of the Tennessee

SIP allowing an unpermitted source to obtain a precon-

struction permit after operations have begun. The dif-

ferent holding here, the Eleventh Circuit stated, was

based on the “important difference in the states’ plans.”

Pet. App. 19a.

In reality, however, the Alabama SIP provisions in

effect at the time of the alleged modifications in this

case did contain provisions imposing an ongoing obliga-

tion to comply with PSD requirements. The regulations

had a section captioned “Types of Permits,” with para-

graphs captioned “Permit to Construct” and “Permit to

Operate” respectively. Paragraph (a) provided that any

person “erecting, altering, or replacing” regulated

equipment was required to obtain a Permit to Construct,

which “shall remain in effect until the Permit to Operate

the equipment for which the application was filed is

granted or denied.” Ala. Air Pollution Control Comm’n

Reg. § 16.1.1(a) (1979), Pet. App. 175a. Paragraph (b),

captioned “Permit to Operate,” provided in turn that

any regulated equipment described in Paragraph (a)

could not be operated or used without an operating per-

mit, and that “[nJo Permit to Operate shall be granted

for any article, machine, equipment, or contrivance de-

scribed in paragraph (a), constructed or installed with-

out authorization as required by paragraph (a), until the

information required is presented to the Director,” and

the equipment in question was brought into compliance

with applicable standards. Ala. Air Pollution Control

Comm’n Reg. § 16.1.1(b) (1979), Pet. App. 175a-176a.

Those provisions, read together, imposed an ongoing

requirement to comply with the PSD program, because

a modified source could not lawfully be operated except

after compliance with the SIP’s preconstruction require-

12

ments.. Under Paragraph (a), a facility that had been

“erect[ed], alter[ed], or replac[ed]” was required to ob-

tain a construction permit; under Paragraph (b), that

altered facility could not be operated until it obtained an

operating permit, through a process that refers back to

Paragraph (a). Paragraph (b) even set forth a specific

procedure for. facilities constructed without advance

authorization, further demonstrating that Alabama in-

tended to create an ongoing obligation.

The court of appeals did not discuss or cite the rele-

vant language of Section 16.1.1 of the Alabama regula-

tions as applicable at the time of the alleged modifica-

tion, presumably because petitioners did not cite that

regulation to the court. Briefing in the court of appeals

had focused primarily on interpretation of the Alabama

SIP as amended in 1985 and in force today. See Pet.

C.A. Br. 26-32; Pet. C.A. Reply Br. 4-7. The court, how-

ever, undertook to examine the Alabama regulations in

force at the time of the alleged modification. See Pet.

App. 17a (“The complaint charges TVA with violating

the Alabama regulations in effect at the time of TVA’s

work on Unit 5, and these regulations govern our in-

quiry.”). In that review the court found no provision

“creating an ongoing obligation to comply with require-

ments of the preconstruction permitting process,” Pet.

App. 19a; it did not discuss the pre-1985 Section 16.1.1

in its opinion or explain whether or why that provision

failed to perform the function the court of appeals

thought was missing from the pre-1985 SIP.

The Alabama regulations in effect at the time of the

alleged modification also imposed an ongoing obligation

to apply BACT. Pet. App. 15a-16a (quoting Ala. Air Pol-

lution Control Comm’n Reg. § 16.4.9(c) (1981), which

provided that a major modification “shall . apply”

13

BACT).® The court of appeals concluded that, because

the SIP directed that BACT apply “to each proposed

emissions unit,” that requirement must have applied

only to “proposed” modifications. Pet. App. 17a (quoting

Ala. Air Pollution Control Comm’n Reg. § 16.4.9(c)

(1981)). In fact, the term “proposed emissions unit” sim-

ply indicated that in the ordinary course, approval oc-

curs before construction. The single word “proposed”

was inadequate support for the court of appeals’ con-

struction, particularly because the BACT obligation by

definition applies (continuously) to the operation of

sources under the CAA framework. See p. 14, infra.

b. That the court of appeals misconstrued the pre-

1985 Alabama SIP is confirmed by a correct understand-

ing of the CAA framework within which the SIP oper-

ated. A SIP should be interpreted with due regard for

the underlying CAA requirements, because SIPs must

meet minimum standards set forth in the CAA and

EPA’s implementing regulations, are subject to EPA

review and approval, and are federally enforceable once

approved. Navistar Int’l Transp. Corp. v. EPA, 858

F.2d 282, 288 (6th Cir. 1988), cert. denied, 490 U.S. 1039

(1989); see also Sierra Club v. Administrator, U.S.

EPA, 496 F.3d 1182, 1186 (11th Cir. 2007) (deferring to

EPA’s reading of a SIP); American Cyanamid Co. v.

United States EPA, 810 F.2d 498, 498 (5th Cir. 1987)

(same).

Here, there is strong structural and textual evidence

that Congress, in enacting the PSD provisions, and

* The Alabama PSD program imposed other ongoing obligations as

well. See, e.g., Ala. Air Pollution Control Comm’n Reg. § 16.4.12(b) and

~ (e) (1981) (owner shall conduct air quality monitoring following con-

struction).

14

EPA, in implementing them, intended to create an ongo-

ing obligation. As a result, even if a SIP is ambiguous

on the subject, a source remains in violation of the law

“— it has fulfilled PSD requirements.

. The PSD provisions are by their terms ongoing

sosubiannali applicable to the operation of major emit-

ting facilities. The most significant of those require-

ments provides that a permit must set forth “emission

limitations” identified by the reviewing authority as

“best available control technology.” 42 U.S.C. 7475(a)(1)

and (4). BACT is defined as an “emission limitation

based on the maximum degree of reduction of each pol-

lutant” emitted from a facility. 42 U.S.C. 7479(8). An

“emission limitation” is defined in turn as a “require-

ment * * * which limits the quantity, rate, or concen-

tration of emissions of air pollutants on a continuous

basis, including any requirement relating to the opera-

tion or maintenance of a source to assure continuous

emission reduction.” 42 U.S.C. 7602(k) (emphases

added). The use of the word “continuous” demonstrates

that BACT is a continuing requirement that does not

apply only at the time of construction. Thus, to meet the

BACT requirement, a facility must both install and oper-

ate the required control technology.’

Other PSD provisions also make clear that they ap-

ply on an ongoing basis to a source’s operation, rather

" The BACT requirement is both a requirement applied through

permitting and a freestanding requirement to install and operate the

required control technology. Both requirements are ongoing, and are

separately actionable. 42 U.S.C. 7475(a)(4); 40 C.F.R. 51.166 (jX3); 45

Fed. Reg. 52,722 (1980) (stating that “Section 165 of the Act provides

in part that any ‘major emitting facility’ constructed in a PSD area must

apply best available control technology”); see also id. at 52,683;

National Parks, 480 F.3d at 418.

15

than only for a finite time to the source’s construction or

modification. For example, the statute allows issuance

of a permit only if “the owner or operator of such facility

demonstrates * * * that emissions from construction

or operation of such facility” will not compromise com-

pliance with applicable air quality standards. 42 U.S.C.

7475(a)(3) (emphasis added). The statute also requires

an owner or operator to submit to appropriate monitor-

ing requirements, 42 U.S.C. 7475(a)(7); those, too, are

ongoing, operational requirements. EPA’s regulations

for the federal PSD program (that is, the program appli-

cable in areas that lack an approved SIP) therefore in-

corporate EPA’s view that the Act is properly construed

to impose a continuing statutory obligation to obtain a

PSD permit even after construction.” Thus, the CAA

does not itself draw the sharp distinction between pre-

construction requirements and operating requirements

that the court of appeals saw in the pre- “1985 Alabama

SIP.

The language of the CAA’s enforcement provisions

further confirms the foregoing analysis. For instance,

42 U.S.C. 7604(a)(1)(A) authorizes citizen suits for

any “violation of * * * an emission standard or limita-

tion,” a category that includes “any requirement to ob-

tain a permit as a condition of operations,” 42 U.S.C.

7604(f)(4). Cf. 136 Cong. Rec. 36,083, 36,084 1990)

® See 40 C.F.R 52.21(r)(1) (“Any owner or operator who * * *

operates a source or modification not in accordance with the application

submitted pursuant to this section or with the terms of any approval to

construct * * * shall be subject to appropriate enforcement action.”).

Under that provision, an owner or operator that secures an operating

permit based on a particular description of its facility, and then makes

a modification to that facility, is under an ongoing obligation t to obtain

a corrected permit.

16

(Senate managers’ statement) (stating, with regard to

the similarly structured governmental enforcement pro-

visions, that the 1990 CAA amendments “confirm[] exist-

ing law,” which allows EPA to “take[] enforcement ac-

tion against operating sources that are in violation of

[NSR] requirements” and to “halt the construction or

modification of new sources that are violating new

source review requirements”).’ The citizen and federal

enforcement provisions of the CAA also permit civil pen-

alties to be imposed for each day a violation continues.

42 U.S.C. 7413(b) and (e)(2). These provisions further

support the view that the CAA creates ongoing obliga-

tions. United States v. Marine Shale Processors, 81

F.3d 1329, 1357 (5th Cir. 1996) (Marine Shale).

ii. The court of appeals also misperceived the frame-

work of the CAA, incorrectly concluding that the statu-

tory scheme sharply distinguished between preconstruc-

tion permits and operating permits. The court of ap-

peals relied on that purported distinction in concluding

that only the Alabama operating-permit requirements

were ongoing and that the preconstruction requirements

applied only at the time of construction.

* The court of appeals found that distinct language of the citizen suit

provision, 42 U.S.C. 7604(a)(3), which authorizes citizens to bring suit

“against any person who proposes to construct or constructs” without

a permit, signaled that Congress did not intend to allow suits based on

ongoing violations during a facility's operation. Pet. App. 13a. To the

contrary, 42 U.S.C. 7604(a)(1) provides precisely that remedy, as the

definition contained in 42 U.S.C. 7604(f)(4) makes clear. Construing 42

U.S.C. 7604(a)(1) in accordance with its plain text to permit challenges

to ongoing violations of the preconstruction requirements does not

render 42 U.S.C. 7604(a)(3) superfluous; although the two provisions

overlap somewhat by design, each of the two provisions also applies in

circumstances where the other does not. .

17

In reality, the CAA’s PSD program creates a single

permitting requirement, which is ordinarily satisfied

before construction or modification of a facility. That

approach allows emission-control requirements to be

taken into account early in the design and construction

process. A preconstruction permit, once issued, either

serves as an operating permit for the facility in question

or establishes conditions on the operation of the source

that must be incorporated into the operating permit.

Although some SIPs require separate construction and

operating permits, the PSD requirements themselves

impose conditions on a source’s operations. Marine

Shale, 81 F.3d at 1855-1356."

The court of appeals cited the permitting provisions

appearing in Title V of the CAA, 42 U.S.C. 7661 et seq.,

which it described as the Act’s operating-permit provi-

sions. Pet. App..18a. But Title V was not enacted until

1990, well after the alleged violations at issue in this

case originated (and 13 years after the PSD program

was enacted). Moreover, the function of Title V permits

is to collect the requirements appearing elsewhere in the

CAA, including but not limited to PSD requirements,

._into a single permit. See 42 U.S.C. 7661c(a) and (b);

United States v. Duke Energy Corp., 278 F. Supp. 2d

619, 651-652 (M.D.N.C. 2003), aff'd on other grounds,

411 F.3d 539 (4th Cir. 2005), vacated on other grounds

sub nom. Environmental Def. v. Duke Energy Corp.,

127 S. Ct. 1423 (2007). The provisions of Title V gener-

ally do “not impose substantive new requirements.” 40

C.F.R. 70.1(b); Sierra Club v. Georgia Power Co., 443

'° The NNSR provisions of the CAA are even clearer in regulating

both construction and subsequent operation. See 42 U.S.C. 7503(a)

(“permits to construct and operate”).

18

F.3d 1346 (11th Cir. 2006). The Title V program there-

fore could not properly be viewed as the operating-per-

mit arm of the PSD program. The PSD program’s ongo-

ing operational requirements must be included in Title

V permits, but those requirements exist independently,

by virtue of the PSD provisions of the CAA. In suggest-

ing that the PSD program’s operating requirements

derive from Title V, instead of from the PSD provisions

themselves, the court of appeals misunderstood the rela-

tionship between the two programs. That error contrib-

uted to the court’s failure to appreciate that the PSD

program itself creates ongoing operational require-

ments.

iii, A reading under which the PSD requirement is

ongoing also properly reflects Congress’s intent in en-

acting the statute. The common-law analogue to Clean

Air Act remedies is an action to abate a nuisance. At

common law, such an action remains available during the

continuation of the nuisance.’ Thus, permitting obliga-

tions like those contained in the CAA are presumptively

treated as ongoing in nature. See Newell Recycling Co.

v. United States EPA, 231 F.3d 204 (5th Cir. 2000), cert.

denied, 534 U.S. 813 (2001); Carr v. Alta Verde Indus.,

Inc., 931 F.2d 1055, 1063 (5th Cir. 1991)); Harmon

"' “(Each day’s continuance of a temporary nuisance creates a new

cause of action,” and therefore “the statute of limitations begins to run

day by day, and plaintiff may at any time recover for the nuisance com-

mitted during the statutory period next before the bringing of the

action.” 1 Fowler V. Harper et al., The Law of Torts § 1.30, at 1:139 (8d

ed. 1996); see also William L. Prosser, Handbook of the Law of Torts

§ 90, at 616 (3d ed. 1964) (noting that “a continuing trespass, such as the

erection of a structure on the plaintiff's land, affords a continuing cause

of action, which can hardly be distinguished from nuisance”).

19

Indus., Inc. v. Browner, 19 F. Supp. 2d 988. 998 (W.D.

Mo. 1998), aff’d, 191 F.3d 894, 904 (8th Cir. 1999). -

Indeed, the very concept of “Prevention of Signifi-

cant Deterioration”—which appears in the name of the

program, 42 U.S.C. Ch. 85, Subch. I, Pt. C—suggests an

ongoing requirement of compliance. When the PSD pro-

gram was established, existing facilities were grand-

fathered, that is, allowed to defer installing emissions

controls. But Congress intended that modification of

those facilities would trigger the requirement to install

such controls. Alabama Power Co. v. Costle, 636 F.2d

323, 400 (D.C. Cir. 1979); Wisconsin Elec. Power Co. v.

Reilly, 893 F.2d 901, 909 (7th Cir. 1990); United States

v. Cinergy Corp., 458 F.3d 705, 709 (7th Cir. 2006), cert. -

denied, 127 S. Ct. 2034 (2007). Congress could not si-

multaneously have intended that PSD requirements

would apply only at the time of construction. Rather,

once a facility has been modified, it has forfeited any

subsequent claim to defer installing emissions controls.

An ongoing requirement to apply PSD, with civil penal-

ties for violations, is necessary to ensure a level playing

field for all emitting sources, and to prevent emissions

from one State from interfering with other-States’ ef-

forts to comply with the CAA’s standards. 42 U.S.C.

7470(4).”

c.. Despite the court of appeals’ misinterpretation of

the pre-1985 Alabama SIP, that issue does not warrant

plenary review at this time. The court of appeals’ princi-

® The legislative history of the NSR provisions contemplates that

preconstruction requirements will subsequently be enforceable, stating

that “[t]his preconstruction review process should help minimize the

need for enforcement or other actions under the State implementation

plan requiring additional post-construction control measures on the

permitted plants.” H.R. Rep. No. 294, 95th Cong., Ist Sess. 145 (1977).

20

pal error—-i.e., its failure to discuss or analyze the oper-

ative SIP provision, Section 16.1.1 of the pre-1985 Ala-

bama regulations—was attributable to petitioners’ fail-

ure to. cite that provision to the court. Moreover, that

error involves a particular provision of a single State’s

implementation plan, a plan that was amended more

than twenty years ago to change the provisions on which

the court’s decision turned. That narrow holding does

not require further review by this Court.

Not only does the court of appeals’ decision not affect

post-1985 construction in Alabama, it also lacks signifi-

cance for the other two States within the circuit.

Those States’ SIPs have for many years contained provi-

sions that explicitly condition the lawful operation of

a source on compliance with the PSD program. See, ¢.g.,

Ga. Comp. R. & Regs. r. 391-3-1-.02(1)(e) (1992); Fla.

Admin. Code Ann. r. 62-212.400(7)(b) (2005); 44 Fed.

Reg. 54,047 (1979) (approving Georgia provision); 48

Fed. Reg. 52,713 (1983) (approving Florida provi-

sion, which then appeared at Fla. Admin. Code Ann. r.

17-2.500(6)(c)). And even if Alabama, Georgia, or

Florida were to amend its SIP in a way that implicated

the court of appeals’ reasoning, and even if EPA were to

approve that modification without speaking to the exis-

tence of continuing obligations, other provisions in the

State’s air rules might well make this case distinguish-

able. Because the ongoing requirement to comply with

PSD is an integral part of the CAA’s scheme, that re-

quirement may manifest itself in other parts of a SIP.

Petitioners principally claim that review is necessary

because the Eleventh Circuit declined to follow the Sixth

Circuit’s reasoning in National Parks. The two deci-

sions are not in direct conflict, however, as is apparent

from their analysis. The court of appeals’ decision in

21

this case was based on a close (albeit erroneous) reading

of the wording of the SIPs; the court concluded that Ala-

bama’s SIP lacked an element that Tennessee’s SIP con-

tained, and that the difference was determinative. Pet.

App. 19a. Thus, on the face of the court’s opinion, there

is no square conflict with the Sixth Circuit’s decision.

The Sixth Circuit found in Tennessee’s SIP a provision

making clear that compliance with PSD requirements is

a condition of the lawful operation of a modified source.

Such a provision appears in Alabama’s current SIP.

Accordingly, a failure to comply with either State’s cur-

rent requirements would be treated as an ongoing viola-

tion to the same extent in both circuits.

Petitioners also assert (Pet. 23-24) that the Eleventh

and Sixth Circuits are in disagreement as to whether the

obligation to install controls that meet BACT levels is

ongoing. But as set out above, the Eleventh Circuit’s

BACT analysis appears to be tainted by its misunder-

standing of SIP and PSD operational requirements and

the relationship between the PSD and Title V programs.

The Court’s analysis may also have been tied to its mis-

reading of the provisions of the Alabama SIP; it de-

scribed the obligation to apply BACT as “solely a pre-

requisite for approval of the modification, not a condi-

tion of Unit 5’s lawful operation, wnder the relevant Ala-

bama State Implementation Plan.” Pet. App. 17a (em-

phasis added).

In a footnote, the court of appeals did express doubts

about the Sixth Circuit’s reading of the BACT language

of the Tennessee SIP. Pet. App. 18a n.2. But the court

of appeals attached significance to the Tennessee SIP

provision creating an ongoing duty to meet preconstruc-

tion requirements, zibid., suggesting that this aspect of

22

the court’s decision, too, depended.on particular SIP

language. 7

Petitioners’ assertions (Pet. 13-14) of a “larger con-

flict” on this question rely principally on district court

opinions, which generally are not a basis for seeking

review in this Court. See Sup. Ct. R. 10(a). Petitioners

also cite (Pet. 14-15) a handful of cases interpreting

other statutes, but the Eleventh Circuit’s interpretation

of the CAA and the Alabama SIP does not implicate the

reasoning of those decisions.

Because the Eleventh Circuit in this case relied on a

perceived omission that no longer exists (and in fact did

not exist even at the relevant time), the significance of

the decision below is likely to be limited or nonexistent.

For those reasons, this case is not a suitable vehicle for

resolving abstract questions (divorced from their imple-

mentation in SIPs) about the nature of NSR obligations

under the CAA.” If the courts of appeals come into di-

rect conflict that is not readily susceptible to resolution

through the regular SIP amendment process, then the

issue may become ripe for this Court’s review.“

'S An additional complicating factor is that, in an action brought by

EPA, the agency would be entitled to deference in its interpretation of

the Act and of SIP provisions that it has approved. Because this is a

citizen action, no such deference was due to the views of either litigant.

In future proceedings relating to the ongoing effect of NSR require-

ments, the responsible agencies may have an opportunity in the course

of the litigation to explicate the appropriate interpretation of applicable

SIP provisions. An action involving TVA is uniquely unsuited to that

purpose, because TVA has a degree of insulation from enforcement by

EPA (particularly in light of the lower court’s prior ruling regarding

administrative remedies, see p. 4, supra).

'* To be sure, a genuine dispute between courts of appeals about the

meaning or significance of particular SIP provisions might not be easily

23

_2. Petitioners also renew their contention that even

if claims for penalties would be time-barred, they should

still be permitted to sue for equitable relief. ‘The court

of appeals’ conclusion—that private citizens’ claims for

equitable relief under the CAA are subject to the same

five-year limitation period specified in Section 2462—is

correct, and petitioners do not identify any circuit con-

flict on that issue. Further review of that dependent

question therefore is not warranted.

-When Congress creates a private civil cause of action

but does not expressly identify a limitation period or

clearly specify that no time limit shall apply, it implicitly

directs the federal courts to fashion an appropriate limi-

tation period for private parties from analogous

law—sometimes federal law, otherwise state law. See,

e.g., North Star Steel Co. v. Thomas, 515 U.S. 29, 33-35

(1995). Petitioners’ contention that no statute of limi-

tations should apply to their equitable claims (Pet. 32) is

wholly unsupported and implicates no split among the

circuits.”

resolved through SIP amendments, and a dispute over SIP interpreta-

tion that genuinely implicated the meaning of the underlying statutory

and regulatory requirements on-which SIPs are based likely could not

be addressed by modifying the SIPs. In this,case, however, the amend-

ment process has already addressed the question presented, by elimi-

nating the perceived aspect of the pre-1985 Alabama SIP on which the

court of appeals based its decision.

'® That principle is even clearer for statutes enacted after 1990. Such

statutes are governed by 28 U.S.C. 1658 (Supp. V 2005), which provides

a presumptive four-year limitation silage for any federal statute en-

acted thereafter. )

- '® Petitioners also point (Pet. 26-27) to the existence of separate civil-

penalty and injunctive remedies in the CAA, and to a passing statement

in legislative history, in support of their claim that Congress intended

24

The court of appeals reached the correct result by

applying Section 2462’s five-year limitation period to

equitable claims under the CAA. In this case the court

came to that conclusion by resort to the concurrent rem-

edy doctrine. Pet. App. 22a (citing Cope v. Anderson,

331 U.S. 461, 464 (1947)). Petitioners claim that the

court’s reasoning was erroneous, citing various frag-

ments of equity doctrine. But that argument for error

correction is inapposite here, because the court of ap-

peals could have reached the same result applying a

straightforward “borrowing” analysis, under which the

analogous federal limitation period set out in Section

2462 provides the time limit for injunctive claims. Cf.

Public Interest Research Group of N.J., Inc. v. Powell

Duffryn Terminals, Inc., 913 F.2d 64, 74-75 (8d Cir.

1990) (Clean Water Act), cert. denied, 498 U.S. 1109

(1991); Sterra Club v. Chevron U.S.A., Inc., 834 F.2d

1517, 1520-1521 (9th Cir. 1987) (same). Any variation in

the courts of appeals’ reasoning for applying Section

2462, however, does not warrant review at this time.

Petitioners fail to identify a single court of appeals that

has adopted their position that citizen suits for equitable

relief under the CAA (or the Clean Water Act, or any

other federal statute permitting private citizens to sue

both for a civil penalty and for equitable relief) are not

subject to any limitation period. Nor do petitioners

that private injunctive claims be subject to no limitation period. Those

isolated indications are not the sort of plain statement that is required

in order to demonstrate that Congress intended to take the unusual

step of creating a private remedy with no limitation period.

25

point to any variation in the limitation period that does

apply.’

Although there is some dispute in the courts of ap-

peals concerning whether equitable claims by the United

States can be barred by the concurrent remedy doctrine,

that issue is not presented here.’* The Eleventh Circuit

correctly rejected petitioners’ argument that as “private

attorneys general” they are entitled to be treated as the

7 Petitioners cite (Pet. 25-26) several district court decisions as

disagreeing with the decision of the court below. Any disagreement

among district courts can be resolved in the first instance by the courts

of appeals. And petitioners’ cases are inapposite in any event: First,

several in fact involve the United States as plaintiff. As discussed

below, the Eleventh Circuit agrees that the concurrent remedy doctrine

does not apply to cases brought by the government. Second, two of

the cited cases involved an allegation of continuous, ongoing harm,

rather than a contention that injunctive claims could reach backward in

time without limit. See Lefebvre v. Central Me. Power Co., 7 F. Supp.

2d 64, 68 (D. Me. 1998); A-C Reorganization Trust v. E.I. DuPont de

Nemours & Co., 968 F. Supp. 428, 428 (E.D. Wis. 1997). In petitioners’

final case, the district court in fact applied a borrowing analysis using

the principles discussed above. See Catellus Dev. Corp. v. L.D.

McFarland Co., 910 F. Supp. 1509, 1518 (D. Or. 1995). Thus, none of

those decisions actually supports petitioners’ proposed approach.

'’ Compare United States v. Telluride Co., 146 F.3d 1241, 1248 (10th

Cir. 1998) (rejecting “the concurrent remedy rule’s application to the

Government when it seeks equitable relief in its enforcement capacity”),

and United States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997) (“{T]Jhe

properly constructed rule is that—absent a clear expression of Con-

gress to the contrary—a statute of limitation does not apply to claims

brought by the federal government in its sovereign capacity.”), cert.

denied, 522 U.S. 1075 (1998), with FEC v. Williams, 104 F.3d 237, 240

(9th Cir. 1996) (briefly concluding that Section 2462 applies to actions

for injunctive relief, without addressing whether that rule applies to

sovereign claims by the government), cert. denied, 522 U.S. 1015 (1997).

See generally Gov’t Amicus Br. at 25-33, San Francisco Baykeeper v.

Cargill Salt Div., 263 F.3d 963 (9th Cir. 2001) (No. 99-16032).

26

United States for time-limit purposes.”” As the court of

appeals observed, the CAA provides that citizen plain-

tiffs proceed “on [their] own behalf,” and it does not

place those plaintiffs into the government’s shoes. Pet.

App. 23a (quoting 42 U.S.C. 7604(a)); see also, e.g., 42

U.S.C. 7604(c)(2) (“A judgment in an action under this

section to which the United States is not a party shall

not * * * have any binding effect upon the United

States.”). There is no disagreement among the circuits

on that question. And petitioners have no quarrel with

the Eleventh Circuit’s holding that the concurrent rem-

edy doctrine does not apply to claims truly brought by

the government. Pet. App. 22a (citing United States v.

Banks, 115 F.3d 916, 919 (11th Cir. 1997), cert. denied,

522 U.S. 1075 (1998)). This case therefore does not pres-

ent any conflict calling for resolution by this Court.

3. Petitioners also briefly argue (Pet. 33-34) that the

court of appeals erred in affirming dismissal of their

NSPS claim on the ground that the pre-suit notice they

provided was insufficiently specific. Certiorari is not

warranted on that issue, which is closely tied to the par-

ticular facts of this case and creates no conflict on any

broader legal! question.

The basic legal standards governing the pre- -suit no-

tice provisions of the environmental laws are well estab-

lished. “[C]ompliance with the 60-day notice provision

'? Absent an express statement by Congress, there is a presumption

that claims by the United States are governed by no limitation period.

“{AJn action on behalf of the United States in its governmental capacity

* * * is subject to no time limitation, in the absence of congressional

enactment clearly imposing it.” E.J. DuPont de Nemours & Co. v.

Davis,. 264 U.S. 456, 462 (1924); accord United States v. Nashville,

Chattanooga & St. Louis Ry. Co., 118 U.S. 120, 125.(1886); United

States v. Knight, 39 U.S. (14 Pet.) 301, 315 (1840).

27

is a mandatory, not optional, condition precedent for

suit,” and any claim brought without the proper notice —

“must be dismissed.” Hallstrom v. Tillamook County,

493 U.S. 20, 26, 31 (1989); see also id. at 23 & n.1 (ex-

plaining that the CAA’s notice provision was the model

for the notice provision at issue in that case). Under\

EPA’s regulation implementing the CAA’s notice provi-

sion, a notice to an alleged violator must include, inter

alia, “sufficient information to permit the recipient to

identify the specific standard, limitation, or order which

has allegedly been violated.” 40 C.F.R. 54.3(b); see also

40 C.F.R. 135.3(a) (same, for Clean Water Act). The

question here is whether petitioners’ notice, which as-

serted that TVA was violating “all of the requirements

of Subpart Da,” Pet. App. 149a, was sufficiently specific

to comply with Section 54.3(b).

Petitioners apparently do not take issue with the

court of appeals’ holding that an undifferentiated refer-

ence to Subpart Da could be insufficient to put an al-

leged polluter on notice of a violation pertaining only to

one of the pollutants governed by that subpart.”

Rather, petitioners suggest (Pet. 33-34) that the -uffi-

ciency of their undifferentiated notice should turn on

whether, at the time they filed the complaint, they had

a “good faith belief” that TVA was in violation of all of

Subpart Da’s requirements. Further review is not war-

ranted on the entirely fact-bound question of petitioners’

subjective good-faith belief, and petitioners identify no

* The court of appeals relied for that proposition on Catskill

Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273

F.3d 481, 487 (2d Cir. 2001), a Clean Water Act case. Pet. App. 29a.

The applicability of that holding on the facts of this case is open to ques-

tion, but because petitioners do not address it, the issue is not pre-

sented.

28

conflicting authority that decides the sufficiency of no-

tice based on those subjective grounds. In the absence

of a circuit conflict, that question does not warrant this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitied.

PAUL D. CLEMENT

_ Solicitor General

RONALD J. TENPAS

Assistant Attorney General

ELLEN DURKEE

R. JUSTIN SMITH

Attorneys

May 2008