CleanCOALition v. TXU POWER

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 21, 2008

No. 07-50685 Charles R. Fulbruge III
Clerk

CLEANCOALITION; ROBERTSON COUNTY: OUR LAND OUR LIVES

Plaintiffs-Appellants
v.

TXU POWER, doing business as TXU GENERATION COMPANY LP; OAK
GROVE MANAGEMENT COMPANY LLC; TXU CORPORATION

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case of first impression involves the scope of citizen-suit jurisdiction
under the Clean Air Act (“CAA”). See 42 U.S.C. § 7604(a). Plaintiffs-Appellants
filed suit to enjoin Defendants-Appellees from constructing a pulverized coal-
fired power plant in their community, alleging various violations of the CAA
preconstruction permit process. The district court dismissed this case on the
ground that, inter alia, neither of the asserted bases for subject matter
jurisdiction, §§ 7604(a)(1) and 7604(a)(3), provides for jurisdiction in this case.
For the reasons stated herein, we agree and, therefore, affirm the judgment of
the district court.
 No. 07-50685

I. BACKGROUND FACTS
CleanCOALition and Robertson County: Our Land, Our Lives (collectively
“Appellants”) are environmental interest groups whose members are concerned
with environmental health issues, including air quality. TXU Power, Oak Grove
Management LLC, and TXU Corporation (collectively “TXU”) are utility entities
that have proposed the construction of a pulverized coal-fired power plant in
Robertson County, Texas. Members of Appellants reside in Robertson County
and allege they will be adversely affected by emissions from the plant.
On July 27, 2005, TXU applied for a preconstruction permit with the Texas
Commission on Environmental Quality (“TCEQ”), which regulates the
preconstruction authorization process for the State of Texas under the CAA’s
Prevention of Significant Deterioration (“PSD”) Program. See 42 U.S.C. § 7401,
et seq. On February 21, 2006, the TCEQ completed a technical review of TXU’s
application and issued a preliminary decision and draft permit. TXU requested
the TCEQ to refer the application to the State Administrative Office of Hearings
(“SOAH”) for a hearing to determine whether it complied with all relevant
statutory and regulatory requirements. One of the Appellants participated in
this hearing. On August 23, 2006, the SOAH issued a Proposal for Decision
approving the permit, subject to final review by the TCEQ.
On December 1, 2006, after expiration of a 60-day written notice,1
Appellants filed suit against TXU alleging that its permit application does not
comply with requirements of the PSD Program. Specifically, Appellants allege
that (1) TXU is violating preconstruction emissions standards and limitations
mandated by the CAA; and (2) TXU intends to construct its proposed plant
without a CAA-compliant permit. Appellants seek, inter alia, (1) declaratory

1
Prior to filing certain citizen suits, the CAA requires that aggrieved parties give 60
days notice of the standard, limitation, or order alleged to be violated to (1) the EPA, (2) the
state in which the alleged violation occurred, and (3) the alleged violator. See 42 U.S.C. §
7604(b). Here, Appellants sent the requisite notice.

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relief that TXU is in violation of the CAA; (2) temporary and permanent
injunctive relief prohibiting the construction of the plant; and (3) an order that
TXU comply with the preconstruction requirements of the PSD Program. They
also seek an assessment of civil penalties against TXU in the amount of
$27,500.00 per day for each violation.
On December 21, 2006, TXU filed a motion to dismiss based on
jurisdictional, justiciability, and abstention grounds. On May 21, 2007, the
district court granted the motion to dismiss. Specifically, the district court held
that (1) Section 7604(a)(1) does not authorize citizen suits to redress alleged pre-
permit, preconstruction, pre-operation CAA violations; (2) Section 7604(a)(3) of
the CAA does not authorize preconstruction citizen suits against entities that
either have obtained a permit or are in the process of doing so; (3) Appellants
failed to present a live case or controversy because the state permit process is
still ongoing; and (4) even if it had subject matter jurisdiction, the district court
would abstain from exercising it pursuant to Burford v. Sun Oil Co., 319 U.S.
315 (1943) because timely and adequate state court review was available and the
exercise of federal review would disrupt state efforts to establish a coherent
policy with respect to a matter of substantial public concern. Appellants filed a
timely notice of appeal.2

2
Subsequent to the filing of this appeal, on June 13, 2007, the TCEQ voted to grant the
permit and on June 20, 2007, issued an order to that effect. On August 8, 2007, the TCEQ
overruled a motion for rehearing. Separate entities -- other than the parties in this case --
have since filed suit in state court challenging the issuance of the permit. TXU has filed an
unopposed motion for this court to take judicial notice of these facts. A court may take judicial
notice of a fact that is “not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b). “An appellate court may take judicial notice of facts, even if such facts were not
noticed by the trial court.” United States v. Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir. 2001)
(citing Fed. R. Evid. 201(f)). We agree that these facts are the kind of which this court could
take judicial notice, though they do not alter our disposition in this case.

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II. STATUTORY AND REGULATORY FRAMEWORK
Congress enacted the 1970 Amendments to the CAA to establish “a
comprehensive national program that made the States and the Federal
Government partners in the struggle against air pollution.” GM Corp. v. United
States, 496 U.S. 530, 532 (1990). The 1970 Amendments indicate, however, that
although “[f]ederal financial assistance and leadership is essential for the
development of cooperative Federal, State, regional, and local programs to
prevent and control air pollution,” see 42 U.S.C. § 7401(a)(4), “air pollution
prevention (that is, the reduction or elimination, through any measures, of the
amount of pollutants produced or created at the source) and air pollution control
at its source is the primary responsibility of States and local governments.” See
42 U.S.C. § 7401(a)(3). Thus, while the Amendments assign the Environmental
Protection Agency (“EPA”) the responsibility for “prescribing a national primary
ambient air quality standard and a national secondary ambient air quality
standard” for certain pollutants, see 42 U.S.C. § 7409(1)(A), they assign the
States the primary responsibility for “assuring air quality within the entire
geographic area comprising such State by submitting an implementation plan
for such State which will specify the manner in which national primary and
secondary ambient air quality standards [“NAAQS”] will be achieved and
maintained within each air quality control region in such State.” See 42 U.S.C.
§ 7407(a); see also 42 U.S.C. § 7410(a)(1) (“Each State shall . . . adopt . . . a plan
which provides for implementation, maintenance, and enforcement of such
primary . . . [and] secondary standard in each air quality control region (or
portion thereof) within such State.”). They further mandate that each State
implementation plan (“SIP”) include a permit program. See 42 U.S.C. §
7410(a)(2)(C). In Texas, the TCEQ administers the State CAA permit program.3

3
Although, the EPA is required to approve SIPs that provide for the timely attainment
and subsequent maintenance of primary and secondary ambient air standards as well as

4
 No. 07-50685

In 1977, further amendments were made to the CAA in which Congress
enacted the PSD Program, see 42 U.S.C. §§ 7470-7492, because the then-existing
EPA New Source Performance Standards did too little to “achiev[e] the
ambitious goals of the 1970 Amendments.” Envtl. Def. v. Duke Energy Corp., 127
S. Ct. 1423, 1429 (2007) (citation omitted). Thus, the 1977 Amendments “[gave]
added protection to air quality in certain parts of the country ‘notwithstanding
attainment and maintenance of’ the NAAQS.” Id. at 1427 (quoting 42 U.S.C. §
7470(1)). They also “assure[d] that any decision to permit increased air pollution
in any area to which this section applies is made only after careful evaluation of
all the consequences of such a decision and after adequate procedural
opportunities for informed public participation in the decisionmaking process.”
42 U.S.C. § 7470(5). To ensure CAA compliance, Congress mandated the
issuance of PSD permits before construction of any “major emitting facility.” See
42 U.S.C. § 7475(a)(1).
Under the 1977 Amendments -- similar to the 1970 Amendments --
“[s]tates have the primary role in administering and enforcing the various
components of the PSD program.” ADEC v. EPA, 540 U.S. 461, 491 (2004)
(quoting 57 Fed. Reg. 28,095 (1992)). However, Congress has set forth explicit
substantive and procedural requirements that must be met prior to the
construction of any major emitting facility. The substantive requirements
include, inter alia, a demonstration that: (1) “emissions from construction or
operation of such facility will not cause, or contribute to, air pollution in excess
of any” applicable emission standards; (2) “the proposed facility is subject to the

satisfy other CAA general requirements, see 42 U.S.C. § 7410(a)(3), the EPA has no authority
to question the wisdom of a State’s choices of emission limitations if they are part of a SIP that
otherwise satisfies the standards set forth in 42 U.S.C. § 7410(a)(2). “Thus, so long as the
ultimate effect of a State’s choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations
it deems best suited to its particular situation.” Train v. NRDC, 421 U.S. 60, 79 (1975); see
also Union Elec. Co. v. EPA, 427 U.S. 246, 268-69 (1976).

5
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best available control technology for each pollutant;” (3) the facility complies
with any applicable Class I area protection requirements; (4) “there has been an
analysis of any air quality impacts projected for the area as a result of growth
associated with such facility;” and (5) “the person who owns or operates, or
proposes to own or operate, a major emitting facility for which a permit is
required under this part agrees to conduct such monitoring as may be necessary
to determine the effect which emissions from any such facility may have, or is
having, on air quality in any area which may be affected by emissions from such
source.” See 42 U.S.C. §§ 7475(a)(3)-(7), 7475(d). The procedural requirements
include, inter alia, a public hearing and an opportunity for any interested person
to appear and submit comments on a proposed permit. See 42 U.S.C. §
7475(a)(2). The EPA further “interprets existing law and regulations to require
an opportunity for state judicial review of PSD permit actions under approved
PSD SIPs by permit applicants and affected members of the public in order to
ensure an adequate and meaningful opportunity for public review and comment
on all issues within the scope of the permitting decision, including
environmental justice concerns and alternatives to the proposed source.”
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia -- Prevention of Significant Deterioration Program,
61 Fed. Reg. 1880 (Jan. 24, 1996) (to be codified at 40 C.F.R. pt. 52) (The EPA).
The State of Texas has an EPA-approved PSD Program. See Approval and
Promulgation of Implementation Plans; Texas; Revisions to Regulations for
Control of Air Pollution by Permits for New Sources and Modifications, 67 Fed.
Reg. 58,697 (Sept. 18, 2002) (to be codified at 40 C.F.R. pt. 52). Pursuant to this
Program, “[b]efore work is begun on the construction of a new facility or a
modification of an existing facility that may emit air contaminants, the person
planning the construction or modification must obtain a permit or permit
amendment from the commission.” Tex. Health & Safety Code § 382.0518(a).

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The general requirements for a permit are set forth in Title 30 of the Texas
Administrative Code, Sections 116.111 and 116.160-63. In reviewing a PSD
permit application, Texas law provides an opportunity for public comment. See
30 Tex. Admin. Code § 55.150, et seq. Texas law also permits any person granted
party status to request and participate in contested hearings before the SOAH.
See 30 Tex. Admin. Code§ 55.200, et seq. Finally, Texas law allows for state
judicial review over any permit decision. See Tex. Gov’t Code § 2001.001, et seq.
III. ANALYSIS
The district court dismissed CleanCOALition’s complaint in this case for
lack of subject matter jurisdiction, a decision of a legal question we review de
novo. Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 402 (5th Cir. 2000). “A
case is properly dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187
(2d Cir. 1996)).
The jurisdictional question in this case involves construction of the CAA’s
citizen-suit provisions. “[T]he starting point in every case involving construction
of a statute is the language itself.” Greyhound Corp. v. Mt. Hood Stages, Inc.,
437 U.S. 332, 330 (1978); see also Sutton v. United States, 819 F.2d 1289, 1292
(5th Cir. 1987) (“We begin, as we must, with an analysis of the text of the statute
itself.”). “If the intent of Congress is clear, that is the end of the matter; for the
court . . . must give effect to the unambiguously expressed intent of Congress.”
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984); see also Birdwell v. Skeen, 983 F.2d 1332, 1339 (5th Cir. 1993) (“Where
the language of a statute is clear and unambiguous, courts should not undertake
to add to or detract from its provisions.”). “In determining the meaning of the
statute, we look not only to the particular statutory language, but to the design

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of the statute as a whole and to its object and policy.” Crandon v. United States,
494 U.S. 152, 158 (1990) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987); see also Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of
statutory language is determined by reference to the language itself, the specific
context in which that language is used, and the broader context of the statute
as a whole.”); King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (‘[A] statute
is to be read as a whole . . . since the meaning of statutory language, plain or not,
depends on context.”).
We now turn to the statutory text in question. The CAA provides for
federal citizen suit jurisdiction in three circumstances:
(1) Against any person . . . who is alleged to have violated (if there
is evidence that the alleged violation has been repeated) or to be in
violation of (A) an emission standard or limitation under this Act or
(B) an order issued by the Administrator or a State with respect to
such a standard or limitation;

(2) Against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this Act which is
not discretionary with the Administrator, or

(3) Against any person who proposes to construct or constructs any
new or modified major emitting facility without a permit required
under part C of title I (relating to significant deterioration of air
quality) or part D of title I (relating to nonattainment) or who is
alleged to have violated (if there is evidence that the alleged
violation has been repeated) or to be in violation of any condition of
such permit.

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42 U.S.C. §§ 7604(a)(1)-(3).4 Only the first and third provisions are at issue in
this case. We address each provision in turn.
A. Whether § 7604(a)(1) authorizes citizen suits to redress alleged
pre-permit, preconstruction, pre-operation CAA violations?

The district court held that § 7604(a)(1) does not authorize citizen suits to
redress alleged pre-permit, preconstruction, pre-operation CAA violations.
According to the district court, when a facility is still in the pre-permit,
preconstruction, pre-operation stage, it has yet to emit anything and cannot be
deemed “to have violated . . . or be in violation of an emission standard or
limitation.” See 42 U.S.C. § 7604(a)(1); see also Weiler v. Catham Forest Prods.,
Inc., 392 F.3d 532, 538 (2d Cir. 2004) (“[A § 7604(a)(1)] suit can only be brought
against a private defendant after a facility has been built and begun operation.”);
Sugarloaf Citizens Ass’n v. Montgomery County, No. 93-2475, 1994 WL 447442
at *8 n.9 (4th Cir. Aug. 17, 1994) (unpublished) (“[U]ntil construction is
completed . . . [Appellees] can neither begin emissions nor violate any emissions
standard.”). Appellants, citing §§ 7604(f)(3) and 7604(f)(4),5 respond that the

4
These provisions “provide citizen participation in the enforcement of standards and
regulations established under [the CAA].” Natural Res. Def. Council v. Train, 510 F.2d 692,
699 (D.C. Cir. 1972) (citations omitted). They reflect Congress’s recognition that “citizens can
be a useful instrument for detecting violations and bringing them to the attention of the
enforcement agencies and courts alike.” Id. at 699-700 (citations omitted).
5
Section 7604(f) broadly defines an “emission standard or limitation under this Act” as
follows:

(1) a schedule or timetable of compliance, emission limitation, standard of
performance or emission standard;

(2) a control or prohibition respecting a motor vehicle fuel or fuel additive;

(3) any condition or requirement of a permit under part C of title I (relating to
significant deterioration of air quality) [and other particular types of permits not
applicable here], any condition or requirement under an applicable
implementation plan relating to transportation control measures, air quality
maintenance plans, vehicle inspection and maintenance programs or vapor

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phrase “emission standard or limitation” is defined broadly enough to encompass
preconstruction requirements and thus, TXU can be deemed “to have violated
. . . or be in violation of an emission standard or limitation” simply by filing a
permit application without satisfying those requirements. We address §§
7604(f)(3) and § 7604(f)(4) in turn.
1. Whether the definition of “emission standard or limitation,”
as set forth in § 7604(f)(3), is broad enough to include
requirements for filing preconstruction permit applications?

Appellants first argue that because “emission standard or limitation” is
defined to include “any condition or requirement of a permit under part C of title
I (relating to significant deterioration of air quality),” see 42 U.S.C. § 7604(f)(3),
which contains preconstruction requirements, TXU can be deemed “to have
violated . . . or be in violation of an emission standard or limitation” simply by
filing a permit application without satisfying those requirements. We disagree.
One can hardly be deemed to have violated a “condition or requirement of a
permit” simply by filing an incomplete permit application, in response to which
a permit may or may not issue. See Miss. River Revival, Inc. v. EPA, 107 F.
Supp. 2d 1008, 1015 (D. Minn. 2000) (construing Clean Water Act citizen suit
provision, which was modeled after the CAA, and finding that it “does not
authorize jurisdiction for an action challenging the contents of a permit

recovery requirements, [fuel, fuel additives, visibility protection, ozone
protection, or stationary sources]; or

(4) any other standard, limitation, or schedule established under any permit
issued pursuant to title V or under any applicable State implementation plan
approved by the Administrator, any permit term or condition, and any
requirement to obtain a permit as a condition of operations;

which is in effect under this Act (including a requirement applicable by reason
of section 118 or under an applicable implementation plan.

42 U.S.C. § 7604(f).

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application.”); Freeman v. Cincinnati Gas & Elec. Co., No. 1:05CV179, 2005 WL
2837466, at *2 (S.D. Ohio Oct. 27, 2005) (holding that a proposed Title V air
permit cannot form the basis of a citizen suit). Nevertheless, Appellants invite
us to interpret the phrase “any condition or requirement of a permit” to mean
“any condition or requirement to obtain a permit.” We decline to do so. Instead,
we interpret the phrase “of a permit” as doing nothing more than broadening the
definition of “emission standard or limitation” to include those conditions and
requirements found in any permit issued pursuant to any of the various
provisions listed in § 7604(f)(3).6 Until the permit issues, however, no “permit”
exists to be violated. If Congress wanted to define “emission standard or
limitation” to include any condition or requirement to obtain a preconstruction
permit, it certainly knew how to do so. Indeed, the last clause of another section,
§ 7604(f)(4), specifically defines “emission standard or limitation” to include “any
requirement to obtain a permit as a condition to operations.”7 No similar
counterpart exists for a preconstruction permit, which is at issue in this case and
treated separately under the CAA. Compare 42 U.S.C. § 7475 (preconstruction
permits) with 42 U.S.C. § 7661, et seq. (operation permits). “Where Congress
includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” Russello v. United States,
464 U. S. 16, 23 (1983). Thus, we presume that by not including similar

6
The legislative history supports our interpretation. Indeed, according to the Joint
Explanatory Statement of the Committee of Conference, §§ 7604(a)(3) and 7604(f)(3) permit
citizens suits to redress “the violation of any condition or requirement specified by the State
or the Administrator under a significant deterioration or non-attainment permit . . . .” See H.
Conf. Rep. No. 564, at 173 (1977), as reprinted in 1977 U.S.C.C.A.N. 1502, 1554.
7
Although Appellants argued before the district court that this clause provides an
alternative basis for jurisdiction, they have since abandoned that argument, most likely
because it applies to operation permits and here, Appellants are challenging TXU’s application
for a preconstruction permit.

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language for preconstruction permits, Congress did not intend, by virtue of §
7604(f)(3), to define “emission standard or limitation” to include conditions or
requirements to obtain such permits.
2. Whether the definition of “emission standard or limitation,”
as set forth in § 7604(f)(4), is broad enough to include
requirements for filing preconstruction permit applications?

The first clause of § 7604(f)(4) presents a much more difficult question.
Appellants argue that because that clause defines “emission standard or
limitation” to include “any other standard, limitation, or schedule established .
. . under any applicable State implementation plan,” see 42 U.S.C. § 7604(f), and
such plans also contain preconstruction requirements, TXU can be deemed “to
have violated . . . or be in violation of an emission standard or limitation” simply
by filing a permit application without satisfying those requirements. The
district court, noting that Appellants are challenging TXU’s application for a
preconstruction permit, rejected this argument on the ground that § 7604(f)(4)
is limited, in its entirety, to operating permits. We disagree. It is true that §
7604(f)(4) was added as part of Title V of the CAA’s operating permit program,
see CAA Amendments, Pub. L. No. 101-549, Title III, § 302(f), Title VII, § 707(a)-
(g), 104 Stat. 2574, 2682 (1990), and that certain clauses of that section are
expressly limited to operating permits.8 However, the first clause is not so
limited and broadly defines “emission standard and limitation” to include “any
other standard, limitation, or schedule established . . . under any applicable
State implementation plan.” Id. The CAA further defines “applicable
implementation plan” to include plans involving both preconstruction and

8
For example, § 7604(f)(4) broadens the definition of “emission standard or limitation”
to include “any other standard, limitation, or schedule established under any permit issued
pursuant to title V” and “any permit term or condition, and any requirement to obtain a permit
as a condition of operations.” See 42 U.S.C. § 7604(f)(4).

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operating permits. See 42 U.S.C. § 7602(q).9 Thus, the district court erred in
concluding that § 7604(f)(4), in its entirety, is limited to operating permits. See
Conservation Law Found., Inc. v. Romney, 421 F. Supp. 2d 344, 350 n.6 (D.
Mass. 2006); Cmtys. for a Better Env’t v. Cenco Ref. Co., 180 F. Supp. 2d 1062,
1082 (C.D. Cal. 2001).
TXU argues that the first clause of § 7604(f)(4) is inapplicable for a
different reason. According to it, the terms “standards” and “limitations” in that
clause refer only to “emission standards” and “emission limitations,” which are
further defined in the CAA to mean “a requirement established by the State or
the Administrator which limits the quantity, rate, or concentration of emissions
of air pollutants on a continuous basis[.]” See 42 U.S.C. § 7602(k). Thus, under
its interpretation, because permit application requirements do not limit “the
quantity, rate, or concentration of emissions of air pollutants on a continuous
basis,” they are not “emission standards” or “emission limitations” and,
concomitantly, TXU cannot be deemed to have violated or be in violation of such
standards and limitations simply by filing an alleged incomplete permit
application. We disagree with TXU’s basic premise that the terms “standards”
and “limitations” in the first clause of § 7604(f)(4) refer only to “emission
standards” and “emission limitations.” Indeed, the plain text of that clause
defines “emissions standards and limitations” to mean “any other standard,
limitation, or schedule established . . . under any applicable State

9
That section provides:

For purposes of this Act, the term “applicable implementation plan” means the
portion (or portions) of the implementation plan, or most recent revision thereof,
which has been approved under section 110 [involving preconstruction permit
programs], or promulgated under section 110(c), or promulgated or approved
pursuant to regulations promulgated under section 301(d) [involving operating
permit programs] and which implements the relevant requirements of this Act.

42 U.S.C. § 7602(q).

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implementation plan.” 42 U.S.C. § 7604(f)(4) (emphasis added). The use of the
term “other” indicates that Congress intended those terms to mean something
more than just “emission standards” and “emission limitations.” We decline to
import the word “emission” into a clause that does not expressly include it. See
Cmtys. for a Better Env’t, 180 F. Supp. 2d at 1081; see also Conservation Law
Foundation v. FHA, 24 F.3d 1465, 1477 n.5 (1st Cir. 1994) (“Defendants’ use of
the definition for ‘emissions standard or limitation’ provided in 42 U.S.C. §
7602(k) (a requirement ‘established by the State or Administrator’) is improper
because § 7604(f) defines this term for all of § 7604, trumping the definition in
§ 7602(k).”).10
Although we reject the district court and TXU’s interpretations of §
7604(f)(4), we need not decide today whether the definition of “emission standard
or limitation” is broad enough, by virtue of § 7604(f)(4), to encompass
preconstruction requirements because even if that phrase is so defined, we fail
to see how TXU could be held to violate those requirements simply by filing an
incomplete permit application, in response to which a permit may or may not
issue, especially when the permit process is still pending and subject to state
judicial review. See Miss. River Revival, 107 F. Supp. 2d at 1015; Freeman, 2005
WL 2837466, at *2. Indeed, the preconstruction requirements set forth in the
Texas SIP, such as evidence that the facility will utilize the best available
control technology, are preconditions for granting a preconstruction permit, not
preconditions for filing a preconstruction permit application. See 30 Tex. Admin.
Code § 116.111(a). Presumably, an entity can file as many incomplete permit

10
Moreover, TXU’s interpretation would render superfluous another section, §
7604(f)(1), which already defines the phrase “emission standard or limitation” to include an
“emission standard” or “emission limitation.” See 42 U.S.C. § 7604(f)(1). “It is a cardinal
principle of statutory construction that a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotations and citation
omitted); see also Hoffman v. Kramer, 362 F.3d 308, 318 n.7 (5th Cir. 2004).

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applications as it so chooses, but that does not mean in doing so, it is violating
a preconstruction requirement or an emission standard or limitation. Moreover,
the Eleventh Circuit has held, following a long line of district court cases, that
“violations of the preconstruction permitting requirements occur at the time of
construction.” Nat’l Parks & Conservation Ass’n v. TVA, 502 F.3d 1316, 1322
(11th Cir. 2007) (collecting cases and quoting New York v. Niagara Mohawk
Power Corp., 263 F. Supp. 2d 650, 661 (W.D.N.Y. 2003)). Here, the facility at
issue has not yet begun construction and no permit has been issued. In short,
we agree with the district court’s ultimate conclusion that under the plain
language of § 7604(a)(1), TXU’s mere filing of an alleged incomplete permit
application does not constitute a violation of an emission standard or limitation
under the CAA and, concomitantly, that subject matter jurisdiction is lacking in
this case.11
To the extent that Appellants argue that jurisdiction under § 7604(a)(1)
is implied in this case, “[i]t is an elemental canon of statutory construction that
where a statute expressly provides a particular remedy or remedies, a court
must be chary of reading others into it.” Middlesex County Sewerage Auth. v.
Nat’l Sea Clammers Assn., 453 U.S. 1, 14-15 (1981). As the Supreme Court has
explained, where Congress has provided “elaborate enforcement provisions” for
remedying the violation of a federal statute -- as Congress has done with the
CAA -- “it cannot be assumed that Congress intended to authorize by implication
additional judicial remedies for private citizens suing under [the statute].” Id.
at 14 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19
(1979)). Here, Congress and the EPA have set forth an elaborate enforcement
scheme through which citizens have an opportunity to participate in public

11
Whether § 7604(a)(1) redresses alleged preconstruction violations against either TXU
or the TCEQ once the permit issues and/or construction of the facility commences are issues
we need not decide today.

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hearings and state court proceedings involving the issuance of any construction
permit. See 42 U.S.C. § 7475(a)(2); see also Approval and Promulgation of Air
Quality Implementation Plans; Commonwealth of Virginia--Prevention of
Significant Deterioration Program, 61 Fed. Reg. 1880 (Jan. 24, 1996) (to be
codified at 40 C.F.R. pt. 52). It would seem odd then that Congress would
simultaneously authorize citizens to bypass this process altogether and seek
simultaneous review in federal court.12
B. Whether § 7604(a)(3) authorizes preconstruction citizen suits
against facilities that either have obtained a permit or are in the
process of doing so?

The district court held that § 7604(a)(3) does not authorize preconstruction
citizen suits against facilities that have either obtained a permit or are in the
process of doing so. Instead, the district court interpreted that section as
authorizing citizen suits when an entity proposes to construct or constructs a
facility without a permit whatsoever. We agree with the district court’s
interpretation. Appellants interpret the phrase “without a permit” to mean
“without a permit that complies with the CAA.”13 However, we decline to rewrite

12
Appellants, citing Title V of the CAA, argue that such dual enforcement is common.
Although Title V of the CAA provides for federal judicial review to evaluate the validity of an
operating permit, see 42 U.S.C. § 7661d(b)(2), it only does so after the issuance of the permit
and the subsequent denial of the aggrieved party’s administrative petition for review. Thus,
contrary to Appellants’ interpretation, Title V does not provide for simultaneous federal review
while the state operating permit process is still ongoing.
13
Appellants cite legislative history to support their interpretation. According to the
Senate amendment, “Section [7604] . . . is amended to allow a citizen to bring suit to prevent
construction of a major emitting facility without a permit in compliance with [various sections
of the CAA].” See H. Conf. Rep. No. 564, at 173 (1977), as reprinted in 1977 U.S.C.C.A.N.
1502, 1553 (emphasis added). Appellants interpret the phrase “without a permit in compliance
with the CAA” to mean “without a permit that complies with the CAA.” Thus, according to
Appellants, a facility can be deemed to have violated § 7604(a)(3) simply by filing a permit
application that fails to comply with the CAA. However, whether the use of word “compliance”
in the Senate amendment necessarily means that Congress intended to authorize citizen suits
to second-guess state agency permit determinations while those determinations are still
pending is far from clear. Moreover, the subsequent House Conference Report, which concurs

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the plain language of the statute. Here, not only has TXU applied for a permit,
it has since successfully obtained one, though still subject to state judicial
review. Thus, it can hardly be said -- as Appellants must in order for §
7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility
“without a permit.” See Ogden Projects v. New Morgan Landfill Co., 911 F.
Supp. 863, 867-68 (E.D. Pa. 1996) (indicating that § 7604(a)(3) authorizes citizen
suits when facility is proposing to construct plant without a permit at all); see
also Heisen v. Pacific Coast Bldg. Prods., Inc., No. 93-16213, 1994 WL 250029,
*1 (9th Cir. Jun. 9, 1994) (unpublished) (rejecting attempt to utilize § 7604(a)(3)
to collaterally attack issuance of permit by alleging that facility submitted
fraudulent information to obtain it). In short, we agree with the district court
that § 7604(a)(3) does not authorize preconstruction citizen suits against
facilities that have either obtained a permit or are in the process of doing so.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.14
AFFIRMED.

in the Senate amendment, omits the phrase “in compliance with” altogether and simply states
that § 7604(a)(3) is amended so that “citizens suits are authorized against sources to enforce
compliance only with respect to . . . any proposal to construct or the construction of any new
or modified major emitting facility without a permit under the prevention of significant
deterioration provision or the nonattainment provisions.” See H. Conf. Rep. No. 564, at 173
(1977), as reprinted in 1977 U.S.C.C.A.N. 1502, 1554 (emphasis added). Thus, the legislative
history is less than determinative and far from helpful.
14
Because we find the district court lacks subject matter jurisdiction in this case, we
do not address the remaining justiciability and abstention issues reached by that court.

17