Environmental Defense v. Duke Energy Corporation

Unit: $U27

561

Syllabus ENVIRONMENTAL DEFENSE et al. v. DUKE ENERGY CORP. et al.

certiorari to the united states court of appeals for the fourth circuit

No. 05–848. Argued November 1, 2006—Decided April 2, 2007

In the 1970s, Congress added two air pollution control schemes to the Clean Air Act (Act): New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of which covers modified, as well as new, stationary sources of air pollution. The NSPS provisions define “modification” of such a source as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. 42 U. S. C. § 7411(a)(4).

The PSD provisions require a permit before a “major emitting facility” can be “constructed,” § 7475(a), and define such “construction” to include a “modification (as defined in [NSPS]),” § 7479(2)(C). Despite this defi­ nitional identity, the Environmental Protection Agency’s (EPA) regula­ tions interpret “modification” one way for NSPS but differently for PSD.

The NSPS regulations require a source to use the best available pollution-limiting technology, see Chevron U. S. A. Inc. v. Natural Re­ sources Defense Council, Inc., 467 U. S. 837, 846, when a modification would increase the discharge of pollutants measured in kilograms per hour, 40 CFR § 60.14(a), but the 1980 PSD regulations require a permit for a modification only when it is a “major” one, § 51.166(b)(2)(i), and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years, § 51.166(b)(21)(ii).

After respondent Duke Energy Corporation replaced or redesigned the workings of some of its coal-fired electric generating units, the United States filed this enforcement action, claiming, among other things, that Duke violated the PSD provisions by doing the work with­ out permits. Petitioner environmental groups intervened as plaintiffs and filed a complaint charging similar violations. Duke moved for sum­ mary judgment, asserting, inter alia, that none of its projects was a “major modification” requiring a PSD permit because none increased hourly emissions rates. Agreeing, the District Court entered summary judgment for Duke on all PSD claims. The Fourth Circuit affirmed, reasoning that Congress’s decision to create identical statutory defini­ tions of “modification” in the Act’s NSPS and PSD provisions affirma­ tively mandated that this term be interpreted identically in the regula­ tions promulgated under those provisions. When the court sua sponte

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Syllabus

requested supplemental briefing on the relevance of this Court’s decision in Rowan Cos. v. United States, 452 U. S. 247, 250, that the Government could not adopt different interpretations of the word “wages” in differ­ ent statutory provisions, plaintiffs injected a new issue into the case, arguing that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the regulation’s validity that could not be raised in an enforcement proceeding, see 42 U. S. C. § 7607(b)(2), since judicial review for validity can be obtained only by a petition to the District of Columbia Circuit, generally within 60 days of EPA’s rulemaking, § 7607(b)(1). The Fourth Circuit rejected this argument, ruling that its interpretation did not invalidate the PSD regulations because they can be interpreted to require an increase in the hourly emissions rate as an element of a major “modification.”

Held: The Fourth Circuit’s reading of the PSD regulations in an effort to conform them with their NSPS counterparts on “modification” amounted to the invalidation of the PSD regulations, which must com­ port with the Act’s limits on judicial review of EPA regulations for va­ lidity. Pp. 573–582.

(a) Principles of statutory interpretation do not rigidly mandate iden­ tical regulation here. Because “[m]ost words have different shades of meaning and consequently may be variously construed, [even] when [they are] used more than once in the same statute or . . . section,” the “natural presumption that identical words used in different parts of the same act are intended to have the same meaning . . . is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different ways of implementation. The point is the same even when the terms share a common statutory definition, if it is general enough. See Robinson v.

Shell Oil Co., 519 U. S. 337, 343–344. Robinson is not inconsistent with Rowan, where the Court’s invalidation of the differing interpretations of “wages,” 452 U. S., at 252, turned not on the fact that a “substantially identical” definition of that word appeared in each of the statutory pro­ visions at issue, but on the failure of the regulations in question to serve Congress’s manifest “concern for the interest of simplicity and ease of administration,” id., at 255. In fact, in a case close to Rowan’s facts, the Court recently declined to follow a categorical rule of resolving am­ biguities in identical statutory terms identically regardless of their sur­ roundings, United States v. Cleveland Indians Baseball Co., 532 U. S.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

563

Syllabus

200, 213, but instead accorded “substantial judicial deference” to an agency’s “longstanding,” “reasonable,” and differing interpretations of the statutory term at issue, id., at 218–220. It makes no difference here that the Act does not merely repeat the same definition in its NSPS and PSD provisions, but that the PSD provisions refer back to the sec­ tion defining “modification” for NSPS purposes. Nothing in the text or legislative history of the statutory amendment that added the NSPS cross-reference suggests that Congress meant to eliminate customary agency discretion to resolve questions about a statutory definition by looking to the surroundings in which the defined term appears. EPA’s construction need do no more than fall within the outer limits of what is reasonable, as set by the Act’s common definition. Pp. 573–576.

(b) The Fourth Circuit’s construction of the 1980 PSD regulations to conform them to their NSPS counterparts was not a permissible reading of their terms. The PSD regulations clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” On its face, the definitional section specifies no rate at all, hourly or annual, merely requiring a “physical change in or change in the method of operation of a major stationary source that would result in a sig­ nificant net emissions increase of any” regulated pollutant. 40 CFR § 51.166(b)(2)(i). But even when the regulations mention a rate, it is annual, not hourly. See, e. g., § 51.166(b)(23)(i). Further at odds with the idea that hourly rate is relevant is the mandate that “[a]ctual emis­ sions shall be calculated using the unit’s actual operating hours,” § 51.166(b)(21)(ii), since “actual emissions” must be measured in a man­ ner looking to the number of hours the unit is or probably will be actu­ ally running. The Court of Appeals’s reasons for its different view are no match for these textual differences. Consequently, the Court of Ap­ peals’s construction of the 1980 PSD regulations must be seen as an implicit invalidation of those regulations, a form of judicial review impli­ cating the provisions of 42 U. S. C. § 7607(b), which limit challenges to the validity of a regulation during enforcement proceedings when such review “could have been obtained” in the Court of Appeals for the Dis­ trict of Columbia Circuit within 60 days of EPA rulemaking. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here.

The Court has no occasion itself at this point to consider the significance of § 7607(b). Pp. 577–581.

(c) Duke’s claim that, even assuming the Act and the 1980 regulations authorize EPA to construe a PSD “modification” as it has done, EPA has been inconsistent in its positions and is now retroactively targeting 20 years of accepted practice was not addressed below. To the extent

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Syllabus

the claim is not procedurally foreclosed, Duke may press it on remand.

Pp. 581–582.

411 F. 3d 539, vacated and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined, and in which Thomas, J., joined as to all but Part III–A. Thomas, J., filed an opinion concurring in part, post, p. 582.

Sean H. Donahue argued the cause for petitioners. With him on the briefs were David T. Goldberg, Jeffrey M. Glea­ son, J. Blanding Holman IV, and Caleb Jaffe.

Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae urging reversal. With him on the briefs were Solicitor General Clement, Assistant Attorney General Wooldridge, James A. Feldman, Kather­ ine J. Barton, Ann R. Klee, Chet M. Thompson, Granta Y.

Nakayama, Thomas W. Swegle, Carol S. Holmes, David W.

Schnare, and Alan Dion.

Carter G. Phillips argued the cause for respondent. With him on the brief were Mark D. Hopson, Kathryn B. Thom­ son, Stephen M. Nickelsburg, Henry V. Nickel, F. William Brownell, Makram Jaber, Marc E. Manly, Catherine S.

Stempien, Garry S. Rice, T. Thomas Cottingham III, and Nash E. Long III.*

*Briefs of amici curiae urging reversal were filed for the State of New Jersey et al. by Zulima V. Farber, former Attorney General of New Jer­ sey, Patrick DeAlmeida, Assistant Attorney General, and Kevin P. Auer­ bacher and Jung W. Kim, Deputy Attorneys General, and by the Attorneys

Terry Goddard, Attorney General of Arizona, Joseph P. Mikitish, Assist­ ant Attorney General, Robert J. Spagnoletti, former Attorney General of the District of Columbia, Edward E. Schwab, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, Gregory D.

Stumbo, Attorney General of Kentucky, Douglas Scott Porter, Assistant Attorney General, Michael A. Cox, Attorney General of Michigan, Thomas

Assistant Attorneys General, Rob McKenna, Attorney General of Wash­ ington, and Leslie R. Seffern, Assistant Attorney General; for the State

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

565

Opinion of the Court Justice Souter delivered the opinion of the Court.

In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance

of New York et al. by Eliot Spitzer, former Attorney General of New York, Caitlin J. Halligan, Solicitor General, Andrew Bing and Daniel J.

Chepaitis, Assistant Solicitors General, Peter H. Lehner, Robert Rosen­ thal, J. Jared Snyder, and Michael J. Myers, Assistant Attorneys General, by Susan Shinkman and Robert A. Reiley, and by the Attorneys General and former Attorneys General for their respective States as follows: Bill Lockyer of California, Richard Blumenthal of Connecticut, Carl C. Dan­ berg of Delaware, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G.

Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Kelly Ayotte of New Hampshire, Patricia A. Madrid of New Mexico, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, and William H. Sorrell of Vermont; for the American Lung Association et al. by Hope M. Babcock; for the Chesa­ peake Bay Foundation et al. by Michael D. Goodstein and Julie Kaplan; for Law Professors by Jared A. Goldstein; for the National Parks Conser­ vation Association et al. by George E. Hays and Michael A. Costa; for STAPPA et al. by Richard E. Ayres; for Current and Former Members of Congress by Stephanie Tai; and for Former Administrator of the United States Environmental Protection Agency Carol M. Browner et al. by Holly D. Gordon and Deborah A. Sivas.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Kevin C.

Newsom, Solicitor General, and Robert D. Tambling, Assistant Attorney General, and by the Attorneys General and former Attorneys General for their respective States as follows: David W. Ma´ rquez of Alaska, John W.

Suthers of Colorado, Steve Carter of Indiana, Phill Kline of Kansas, Jon Bruning of Nebraska, Henry D. McMaster of South Carolina, Lawrence

E. Long of South Dakota, Robert F. McDonnell of Virginia, and Patrick

J. Crank of Wyoming; for APA Watch by Lawrence J. Joseph; for the

American Public Power Association et al. by Janet Pitterle Holt, Rae E.

Cronmiller, and Richard H. Robinson; for the Electric Utility Industry by Steven G. McKinney, Michael D. Freeman, and P. Stephen Gidiere III; for Law Professors by David B. Rivkin, Jr., and Lee A. Casey; for the Manufacturers Association Work Group by Charles H. Knauss, Robert V.

Zener, Julie C. Becker, Richard S. Wasserstrom, Kevin B. Belford,

M. Elizabeth Cox, Jan S. Amundson, Quentin Riegel, Robin S. Conrad,

and Amar D. Sarwal; for the National Environmental Development Asso­ ciation’s Clean Air Project by Leslie Sue Ritts and Lorane F. Hebert; and

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

Standards (NSPS) and Prevention of Significant Deteriora­ tion (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term “modification,” 42 U. S. C. § 7411(a)(4), while the PSD provisions use that word “as defined in” NSPS, § 7479(2)(C). The Court of Appeals concluded that the stat­ ute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on “modification” to their NSPS counterparts, and that EPA’s 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals’s reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act’s restrictions on judicial re­ view of EPA regulations for validity.

The Clean Air Amendments of 1970, 84 Stat. 1676, broad­ ened federal authority to combat air pollution, see Chevron

U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467

U. S. 837, 845–846 (1984), and directed EPA to devise Na­

tional Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to imple­ ment and enforce, 42 U. S. C. §§ 7409, 7410. The amend­ ments dealing with NSPS authorized EPA to require opera­ tors of stationary sources of air pollutants to use the best technology for limiting pollution, Chevron, supra, at 846; see also 1 F. Grad, Environmental Law § 2.03 [14], p. 2–356

for the Washington Legal Foundation by Daniel J. Popeo and Paul D.

Kamenar.

Briefs of amici curiae were filed for the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO, et al. by Scott H. Segal and Jason B. Hutt; for Walter C. Bar­ ber by Robert L. Brubaker; and for U. S. Representative Joe L. Barton by George C. Landrith and Christopher C. Horner.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

567

Opinion of the Court

(2006), both in newly constructed sources and those undergo­ ing “modification,” 42 U. S. C. § 7411(a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted,” 42 U. S. C. § 7411(a)(4).

EPA’s 1975 regulations implementing NSPS provided gen­ erally that “any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of section 111.” 40 CFR § 60.14(a) (1976). Especially signifi­ cant here is the identification of an NSPS “modification” as a change that “increase[s] . . . the emission rate,” which “shall be expressed as kg/hr of any pollutant discharged into the atmosphere.” § 60.14(b).1

NSPS, however, did too little to “achiev[e] the ambitious goals of the 1970 Amendments,” R. Belden, Clean Air Act 7 (2001) (hereinafter Belden), and the Clean Air Act Amend­ ments of 1977, 91 Stat. 685, included the PSD provisions, which aimed at giving added protection to air quality in cer­ tain parts of the country “notwithstanding attainment and

1 EPA’s 1975 NSPS regulations did not specify that the “rate” means the maximum rate possible for the technology, see 40 CFR §§ 60.14(a)–(b) (1977), but the parties all read the regulations this way. See Brief for Petitioners 2; Brief for United States 7; Brief for Respondent Duke 32.

At another point in the NSPS regulations, a different definition of “modi­ fication” appeared: “ ‘Modification’ means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility,” § 60.2(h); see also New York v. EPA, 413 F. 3d 3, 11–12 (CADC 2005) (per curiam) (“[N]either the 1975 regulation nor its preamble explained why EPA found it necessary to offer these two separate glosses on ‘modification’ ”).

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

maintenance of ” the NAAQS. 42 U. S. C. § 7470(1).2 The 1977 amendments required a PSD permit before a “major emitting facility” could be “constructed” in an area covered by the scheme. § 7475(a). As originally enacted, PSD ap­ plied only to newly constructed sources, but soon a technical amendment added the following subparagraph: “The term ‘construction’ when used in connection with any source or facility, includes the modification (as defined in section 111(a)) of any source or facility.” § 14(a)(54), 91 Stat. 1402, 42 U. S. C. § 7479(2)(C); see also New York v. EPA, 413 F. 3d 3, 13 (CADC 2005) (per curiam). In other words, the “con­ struction” requiring a PSD permit under the statute was made to include (though it was not limited to) a “modifica­ tion” as defined in the statutory NSPS provisions.

In 1980, EPA issued PSD regulations,3 which “limited the application of [PSD] review” of modified sources to instances of “ ‘major’ modificatio[n],” Belden 46, defined as “any physi­ cal change in or change in the method of operation of a major stationary source that would result in a significant net emis­ sions increase of any pollutant subject to regulation under the Act.” 40 CFR § 51.166(b)(2)(i) (1987). Further regula­ tions in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of “[a]n increase in the hours of operation or in the production rate” would not generally constitute a “physical change in or change in the method of operation.” § 51.166(b)(2)(iii)( f ).

For purposes of a PSD permit, that is, such an operational

2 Statutory PSD superseded a regulatory PSD scheme established by EPA in 1974. See 39 Fed. Reg. 42510. Under the regulations, the term “modification” was defined as “any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated.” Id., at 42514.

3 Although EPA had promulgated an earlier set of PSD regulations in 1978, 43 Fed. Reg. 26380, none of the parties argues that they govern the conduct at issue in this case.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

569

Opinion of the Court

change would not amount to a “modification” as the Act de­ fines it. Second, the PSD regulations defined a “net emis­ sions increase” as “[a]ny increase in actual emissions from a particular physical change or change in the method of opera­ tion,” net of other contemporaneous “increases and de­ creases in actual emissions at the source.” § 51.166(b)(3)(i).

“Actual emissions” were defined to “equal the average rate, in tons per year, at which the unit actually emitted the pol­ lutant during a two-year period which precedes the particu­ lar date and which is representative of normal source opera­ tion.” § 51.166(b)(21)(ii). “[A]ctual emissions” were to be “calculated using the unit’s actual operating hours [and] pro­ duction rates.” Ibid. Third, the term “significant” was de­ fined as “a rate of emissions that would equal or exceed” one or another enumerated threshold, each expressed in “tons per year.” § 51.166(b)(23)(i).

It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this

(a) The Act defines modification of a stationary source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. (b) EPA’s NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pol­ lutants measured in kilograms per hour. (c) EPA’s 1980 PSD regulations require a permit for a modification (with the same statutory definition) only when it is a major one and only when it would increase the actual annual emission of a pollutant above the ac­ tual average for the two prior years.

The Court of Appeals held that Congress’s provision de­ fining a PSD modification by reference to an NSPS modifica­

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

tion caught not only the statutory NSPS definition, but also whatever regulatory gloss EPA puts on that definition at any given time (for the purposes of the best technology require­ ment). When, therefore, EPA’s PSD regulations specify the “change” that amounts to a “major modification” requiring a PSD permit, they must measure an increase in “the amount of any air pollutant emitted,” 42 U. S. C. § 7411(a)(4), in terms of the hourly rate of discharge, just the way NSPS regula­ tions do. Petitioners and the United States say, on the con­ trary, that when EPA addresses the object of the PSD scheme it is free to put a different regulatory interpretation on the common statutory core of “modification,” by measur­ ing increased emission not in terms of hourly rate but by the actual, annual discharge of a pollutant that will follow the modification, regardless of rate per hour. This disagree­ ment is the nub of the case.

Respondent Duke Energy Corporation runs 30 coal-fired electric generating units at eight plants in North and South Carolina. United States v. Duke Energy Corp., 411 F. 3d 539, 544 (CA4 2005). The units were placed in service be­ tween 1940 and 1975, and each includes a boiler containing thousands of steel tubes arranged in sets. Ibid. Between 1988 and 2000,4 Duke replaced or redesigned 29 tube assem­ blies in order to extend the life of the units and allow them to run longer each day. Ibid.

4 The United States argues that some of Duke’s projects were governed by EPA’s PSD regulations promulgated in 1992 rather than the 1980 PSD regulations. Brief for United States 20, n. 4. Duke disputes this. Brief for Respondent Duke 14, n. 4. Because the United States acknowledges that the two sets of regulations “did not materially differ with respect to the legal question at issue here,” Brief for United States 20, n. 4, we will assume, as did the Court of Appeals and the District Court, that the 1980 PSD regulations control. 411 F. 3d, at 543, n. 1; United States v. Duke Energy Corp., 278 F. Supp. 2d 619, 629 (MDNC 2003).

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

571

Opinion of the Court

The United States filed this action in 2000, claiming, among other things, that Duke violated the PSD provisions by doing this work without permits. Environmental De­ fense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund in­ tervened as plaintiffs and filed a complaint charging similar violations.

Duke moved for summary judgment, one of its positions being that none of the projects was a “major modification” requiring a PSD permit because none increased hourly rates of emissions. The District Court agreed with Duke’s read­ ing of the 1980 PSD regulations. It reasoned that their ex­ press exclusion of “ ‘[a]n increase in the hours of operation’ ” from the definition of a “ ‘physical change or change in the method of operation’ ” implied that “post-project emissions levels must be calculated assuming” preproject hours of op­ eration. 278 F. Supp. 2d 619, 640–641 (MDNC 2003). Con­ sequently, the District Court said, a PSD “major modifica­ tion” can occur “only if the project increases the hourly rate of emissions.” Id., at 641. The District Court found fur­ ther support for its construction of the 1980 PSD regulations in one letter and one memorandum written in 1981 by EPA’s Director of the Division of Stationary Source Enforcement, Edward E. Reich. Id., at 641–642.

The United States and intervenor-plaintiffs (collectively, plaintiffs) subsequently stipulated “that they do not contend that the projects at issue in this case caused an increase in the maximum hourly rate of emissions at any of Duke Ener­ gy’s units.” App. 504. Rather, their claim “is based solely on their contention that the projects would have been pro­ jected to result in an increased utilization of the units at issue.” Ibid. Duke, for its part, stipulated to plaintiffs’ right to appeal the District Court’s determination that proj­ ects resulting in greater operating hours are not “major modifications” triggering the PSD permit requirement, ab­ sent an increase in the hourly rate of emissions. The Dis­

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court trict Court then entered summary judgment for Duke on all PSD claims.

The Court of Appeals for the Fourth Circuit affirmed, “al­ beit for somewhat different reasons.” 411 F. 3d, at 542. “[T]he language and various interpretations of the PSD reg­ ulations . . . are largely irrelevant to the proper analysis of this case,” reasoned the Court of Appeals, “because Con­ gress’ decision to create identical statutory definitions of the term ‘modification’ ” in the NSPS and PSD provisions of the Clean Air Act “has affirmatively mandated that this term be interpreted identically” in the regulations promulgated under those provisions. Id., at 547, n. 3, 550. The Court of Appeals relied principally on the authority of Rowan Cos. v.

United States, 452 U. S. 247, 250 (1981), where we held against the Government’s differing interpretations of the word “wages” in different tax provisions. 411 F. 3d, at 550.

As the Court of Appeals saw it, Rowan establishes an “effec­ tively irrebuttable” presumption that PSD regulations must contain the same conditions for a “modification” as the NSPS regulations, including an increase in the hourly rate of emis­ sions.5 411 F. 3d, at 550.

As the Court of Appeals said, Duke had not initially relied on Rowan, see 411 F. 3d, at 547, n. 4, and when the Court sua sponte requested supplemental briefing on Rowan’s rele­ vance, plaintiffs injected a new issue into the case. They argued that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the validity of the regulation that could not be raised in an enforcement pro­ ceeding. See 42 U. S. C. § 7607(b)(2). Under § 307(b) of the

5 The Court of Appeals noted that EPA was free to abandon the require­ ment that a “modification” be accompanied by an increase in the hourly rate of emissions, provided it did so for both the NSPS and PSD programs.

411 F. 3d, at 550–551. In other words, the Court of Appeals raised no question about the reasonableness of the definition of “modification” in the 1980 PSD regulations, apart from its deviation from the definition con­ tained in NSPS regulations.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

573

Opinion of the Court

Act, they said, judicial review for validity can be obtained only by a petition to the Court of Appeals for the District of Columbia Circuit, generally within 60 days of EPA’s rule­ making. 42 U. S. C. § 7607(b).

The Court of Appeals re jected this argument. “Our choice of this interpretation of the PSD regulations . . . is not an invalidation of those regulations,” it said, because “the PSD regulations can be interpreted” to require an in­ crease in the hourly emissions rate as an element of a major “modification” triggering the permit requirement. 411

F. 3d, at 549, n. 7. To show that the 1980 PSD regulations

are open to this construction, the Court of Appeals cited the conclusions of the District Court and the Reich opinions.

We granted the petition for certiorari brought by intervenor-plaintiffs, 547 U. S. 1127 (2006), and now vacate.

The Court of Appeals understood that it was simply con­ struing EPA’s 1980 PSD regulations in a permissible way that left them in harmony with their NSPS counterpart and, hence, the Act’s single definition of “modification.” The plaintiffs say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text.

It is true that no precise line runs between a purposeful but permissible reading of the regulation adopted to bring it into harmony with the Court of Appeals’s view of the stat­ ute, and a determination that the regulation as written is invalid. But the latter occurred here, for the Court of Ap­ peals’s efforts to trim the PSD regulations to match their different NSPS counterparts can only be seen as an implicit declaration that the PSD regulations were invalid as written.

In applying the 1980 PSD regulations to Duke’s conduct, the Court of Appeals thought that, by defining the term

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

“modification” identically in its NSPS and PSD provisions, the Act required EPA to conform its PSD interpretation of that definition to any such interpretation it reasonably ad­ hered to under NSPS. But principles of statutory construc­ tion are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as “effectively irrebuttable.” 411 F. 3d, at 550.

We also understand that “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same sec­ tion.” Atlantic Cleaners & Dyers, Inc. v. United States, 286

U. S. 427, 433 (1932). Thus, the “natural presumption that

identical words used in different parts of the same act are intended to have the same meaning . readily yields whenever there is such variation in the connec­ tion in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Ibid. A given term in the same statute may take on distinct characters from asso­ ciation with distinct statutory objects calling for different implementation strategies.

.

. is not rigid and

The point is the same even when the terms share a com­ mon statutory definition, if it is general enough, as we recog­ nized in Robinson v. Shell Oil Co., 519 U. S. 337 (1997).

There the question was whether the term “employees” in § 704(a) of Title VII of the Civil Rights Act of 1964 covered former employees. Title VII expressly defined the term “employee,” 42 U. S. C. § 2000e(f), but the definition was “consistent with either current or past employment,” 519

U. S., at 342, and we held that “each section” of Title VII

“must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute,” id., at 343–344.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

575

Opinion of the Court

If Robinson were inconsistent with Rowan (on which the Court of Appeals relied), it would be significant that Robin­ son is the later case, but we read the two as compatible. In Rowan, the question was whether the value of meals and lodging given to employees by an employer for its own con­ venience should be counted in computing “wages” under the Federal Insurance Contributions Act (FICA), 26 U. S. C. § 3101 et seq. (2000 ed. and Supp. IV), and the Federal Unem­ ployment Tax Act (FUTA), 26 U. S. C. § 3301 et seq. (2000 ed. and Supp. IV). Treasury Regulations made this value “includable in ‘wages’ as defined in FICA and FUTA, even though excludable from ‘wages’ under the substantially iden­ tical” statutory definition of “wages” for income-tax with­ holding purposes. 452 U. S., at 252. Although we ulti­ mately held that the income-tax treatment was the proper one across the board, we did not see it this way simply be­ cause a “substantially identical” definition of “wages” ap­ peared in each of the different statutory provisions. In­ stead, we relied on a manifest “congressional concern for the interest of simplicity and ease of administration.” Id., at 255 (internal quotation marks omitted). The FICA and FUTA regulations fell for failing to “serve that interest,” id., at 257, not for defying definitional identity.

In fact, in a setting much like Rowan, we recently declined to require uniformity when resolving ambiguities in identical statutory terms. In United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), we rejected the notion that using the phrase “wages paid” in both “the discrete taxation and benefits eligibility contexts” can, standing alone, “compel symmetrical construction,” id., at 213; we gave “substantial judicial deference” to the “longstanding,” “reasonable,” and differing interpretations adopted by the Internal Revenue Service in its regulations and Revenue Rulings. Id., at 218–

tion that the same defined term in different provisions of the

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

same statute must “be interpreted identically.” 411 F. 3d, at 550. Context counts.

It is true that the Clean Air Act did not merely repeat the term “modification” or the same definition of that word in its NSPS and PSD sections; the PSD language referred back to the section defining “modification” for NSPS purposes. 42

U. S. C. § 7479(2)(C). But that did not matter in Robinson,

and we do not see the distinction as making any difference here. Nothing in the text or the legislative history of the technical amendments that added the cross-reference to NSPS suggests that Congress had details of regulatory im­ plementation in mind when it imposed PSD requirements on modified sources; the cross-reference alone is certainly no unambiguous congressional code for eliminating the custom­ ary agency discretion to resolve questions about a statutory definition by looking to the surroundings of the defined term, where it occurs. See New York, 413 F. 3d, at 19 (“So far as appears, . . . [this] incorporatio[n] by reference [is] the equiv­ alent of Congress’s having simply repeated in the [PSD] context the definitional language used before in the NSPS context”); cf. 91 Stat. 745 (expressly incorporating in an unrelated provision of the 1977 amendments “the interpreta­ tive regulation of the [EPA] Administrator . . . published in 41 Federal Register 55524–30” with specified exceptions); New York, supra, at 19 (“Congress’s failure to use such an express incorporation of prior regulations for ‘modification’ cuts against” any suggestion that “Congress intended to in­ corporate” into the Act the “preexisting regulatory defini­ tion” of “modification”). Absent any iron rule to ignore the reasons for regulating PSD and NSPS “modifications” differ­ ently, EPA’s construction need do no more than fall within the limits of what is reasonable, as set by the Act’s com­ mon 6 definition.

6 Duke argues that the 1977 amendments intended to incorporate EPA’s definition of “modification” under the 1974 regulatory PSD program.

Brief for Respondent Duke 44; see also n. 2, supra. We find no support

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

577

Opinion of the Court

The Court of Appeals’s reasoning that the PSD regulations must conform to their NSPS counterparts led the court to read those PSD regulations in a way that seems to us too far a stretch for the language used. The 1980 PSD regula­ tions on “modification” simply cannot be taken to track the Agency’s regulatory definition under the NSPS.

True, the 1980 PSD regulations may be no seamless nar­ rative, but they clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” On its face, the definition in the PSD regulations specifies no rate at all, hourly or annual, merely requiring a physical or operational change “that would result in a significant net emissions increase of any” regulated pollutant. 40 CFR § 51.166(b)(2)(i). But even when a rate is mentioned, as in the regulatory definitions of the two terms, “significant” and “net emissions increase,” the rate is annual, not hourly.

Each of the thresholds that quantify “significant” is de­ scribed in “tons per year,” § 51.166(b)(23)(i), and a “net emis­ sions increase” is an “increase in actual emissions” measured against an “average” prior emissions rate of so many “tons

for this argument in the statutory text, which refers to the statutory NSPS definition rather than the regulatory PSD definition. Although Duke correctly points out that “Congress instructed that the bulk of the pre-existing rules ‘shall remain in effect,’ ” Brief for Respondent Duke 44 (quoting 42 U. S. C. § 7478(a)), this instruction was a temporary measure “[u]ntil such time as an applicable implementation plan is in effect,” § 7478(a). We therefore do not read this language as a restriction on EPA’s authority to interpret the statutory PSD provisions reasonably in a manner that departs from the 1974 regulations. Duke also invokes Bragdon v. Abbott, 524 U. S. 624, 631 (1998), for the proposition that “use of the pre-existing term ‘modification’ ‘carries the implication that Con­ gress intended the term to be construed in accordance with pre-existing regulatory interpretations.’ ” Brief for Respondent Duke 44. But this reasoning is unavailing here, given the existence of at least three distinct regulatory definitions of “modification” at the time of the 1977 amend­ ments. See supra, at 567–568, and nn. 1, 2.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

per year,” §§ 51.166(b)(3)(i) and (21)(ii). And what is fur­ ther at odds with the idea that hourly rate is relevant is the mandate that “[a]ctual emissions shall be calculated using the unit’s actual operating hours,” § 51.166(b)(21)(ii), since “ac­ tual emissions” must be measured in a manner that looks to the number of hours the unit is or probably will be actually running. What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which “hourly rate of emissions,” 411 F. 3d, at 550 (emphasis deleted), is dispositive.

The reasons invoked by the Court of Appeals for its differ­ ent view are no match for these textual differences. The appellate court cited two authorities ostensibly demonstrat­ ing that the 1980 PSD regulations “can be interpreted con­ sistently” with the hourly emissions test, the first being the analysis of the District Court in this case. Id., at 549, n. 7.

The District Court thought that an increase in the hourly emissions rate was necessarily a prerequisite to a PSD “major modification” because a provision of the 1980 PSD regulations excluded an “ ‘increase in the hours of operation or in the production rate’ ” from the scope of “ ‘[a] physical change or change in the method of operation.’ ” 278 F. Supp.

2d, at 640–641 (quoting 40 CFR §§ 51.166(b)(2)(iii)( f ) and (3)(i)(a) (1987)). The District Court read this exclusion to require, in effect, that a source’s hours of operation “be held constant” when preproject emissions are being compared with postproject emissions for the purpose of calculating the “net emissions increase.” 278 F. Supp. 2d, at 640.

We think this understanding of the 1980 PSD regulations makes the mistake of overlooking the difference between the two separate components of the regulatory definition of “major modification”: “[1] any physical change in or change in the method of operation of a major stationary source that [2] would result in a significant net emissions increase

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

579

Opinion of the Court .

. or .

of any pollutant subject to regulation under the Act.” § 51.166(b)(2)(i); cf. New York, 413 F. 3d, at 11 (“[The statu­ tory] definition requires both a change—whether physical or operational—and a resulting increase in emissions of a pol­ lutant” (emphasis in original)); Wisconsin Elec. Power Co. v.

Reilly, 893 F. 2d 901, 907 (CA7 1990) (same). The exclusion of “increase in . . . hours . production rate,” . § 51.166(b)(2)(iii)( f ), speaks to the first of these compo­ nents (“physical change . . . or change in . . . method,” § 51.166(b)(2)(i)), but not to the second (“significant net emis­ sions increase,” ibid.). As the preamble to the 1980 PSD regulations explains, forcing companies to obtain a PSD per­ mit before they could simply adjust operating hours “would severely and unduly hamper the ability of any company to take advantage of favorable market conditions.” 45 Fed.

Reg. 52704. In other words, a mere increase in the hours of operation, standing alone, is not a “physical change or change in the method of operation.” 40 CFR § 51.166(b)(2)(iii).

.

.

.

But the District Court took this language a step further.

It assumed that increases in operating hours (resulting in emissions increases at the old rate per hour) must be ignored even if caused or enabled by an independent “physical change . or change in the method of operation.” § 51.166(b)(2)(i). That reading, however, turns an exception to the first component of the definition into a mandate to ignore the very facts that would count under the second, which defines “net emissions increase” in terms of “actual emissions,” § 51.166(b)(3)(i), during “the unit’s actual operat­ ing hours,” § 51.166(b)(21)(ii); see also 57 Fed. Reg. 32328 (1992) (“[A]n increase in emissions attributable to an increase in hours of operation or production rate which is the result of a construction-related activity is not excluded from [PSD] review . . . ”).7

7 Two Courts of Appeals agree. See United States v. Cinergy Corp., 458 F. 3d 705, 708 (CA7 2006) (“[M]erely running the plant closer to its

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Opinion of the Court

The Court of Appeals invoked one other source of support, the suggestion in the Reich opinions that a physical or opera­ tional change increasing a source’s hours of operation, with­ out an increase in the hourly emissions rate, cannot be a PSD “major modification.” Duke continues to rely on those opinions here, asserting that “there are no contrary Agency pronouncements.” Brief for Respondent Duke 28. The Reich letters are not, however, heavy ammunition. Their persuasiveness is elusive, neither of them containing more than one brief and conclusory statement supporting Duke’s position. Nor, it seems, are they unembarrassed by any “contrary Agency pronouncements.” See, e. g., App. 258 (Memorandum of Don R. Clay, Acting Assistant EPA Admin­ istrator for Air and Radiation (Sept. 9, 1988) (when “plans to increase production rate or hours of operation are inextrica­ bly intertwined with the physical changes planned,” they are “precisely the type of change in hours or rate o[f] operation that would disturb a prior assessment of a source’s environ­ mental impact and should have to undergo PSD review scru­ tiny” (internal quotation marks and alterations omitted))); see also 57 Fed. Reg. 32328. In any event, it answers the cita­ tion of the Reich letters to realize that an isolated opinion of

maximum capacity is not a major modification because it does not involve either a physical change or a change in the method of operation. If, how­ ever, a physical change enables the plant to increase its output, then, ac­ cording to the EPA’s interpretation, the exclusion for merely operating the plant for longer hours is inapplicable” (emphasis in original)); Wiscon­ sin Elec. Power Co. v. Reilly, 893 F. 2d 901, 916, n. 11 (CA7 1990) (the regulatory exclusion for increases in the hours of operation “was provided to allow facilities to take advantage of fluctuating market conditions, not construction or modification activity”); Puerto Rican Cement Co. v. EPA, 889 F. 2d 292, 298 (CA1 1989) (“[T]here is no logical contradiction in rules that, on the one hand, permit firms using existing capacity simply to in­ crease their output and, on the other, use the potential output of new capacity as a basis for calculating an increase in emissions levels” (empha­ sis in original)).

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

581

Opinion of the Court

an agency official does not authorize a court to read a regula­ tion inconsistently with its language.8

In sum, the text of the 1980 PSD regulations on “modifica­ tion” doomed the Court of Appeals’s attempt to equate those regulations with their NSPS counterpart. As a conse­ quence, we have to see the Court of Appeals’s construction of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of § 307(b) of the Act, which limit challenges to the validity of a regulation during enforcement proceedings when such review “could have been obtained” in the Court of Appeals for the District of Columbia Circuit within 60 days of EPA rulemaking. See 42 U. S. C. § 7607(b); see also United States v. Cinergy Corp., 458 F. 3d 705, 707–708 (CA7 2006); Wisconsin Elec. Power Co., 893 F. 2d, at 914, n. 6.

Because the Court of Appeals did not believe that its analy­ sis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of § 307(b) ourselves.

Finally, Duke assumes for argument that the Act and the 1980 regulations may authorize EPA to construe a PSD “modification” as it has done, but it charges that the agency has taken inconsistent positions and is now “retroactively

8 Duke now offers an alternative argument for applying the hourly emis­ sions test for the PSD program: before a project can become a “major modification” under the PSD regulations, 40 CFR § 51.166(b)(2)(i) (1987), it must meet the definition of “modification” under the NSPS regulations, § 60.14(a). That sounds right, but the language of the regulations does not support it. For example, it would be superfluous for PSD regulations to require a “major modification” to be a “physical change in or change in the method of operation,” § 51.166(b)(2)(i), if they presupposed that the NSPS definition of “modification,” which contains the same prerequisite, § 60.14(a), had already been satisfied. The NSPS and PSD regulations are complementary and not related as set to subset.

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Thomas, J., concurring in part

targeting twenty years of accepted practice.” Brief for Re­ spondent Duke 37; see also Brief for State of Alabama et al. as Amici Curiae. This claim, too, has not been tackled by the District Court or the Court of Appeals; to the extent it is not procedurally foreclosed, Duke may press it on remand.

* * *

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas, concurring in part. I join all but Part III–A of the Court’s opinion. I write separately to note my disagreement with the dicta in that portion of the opinion, which states that the statutory cross-reference does not mandate a singular regulatory construction.

The Prevention of Significant Deterioration (PSD) statute explicitly links the definition of the term “modification” to that term’s definition in the New Source Performance Stand­

“The term ‘construction’ when used in connection with any source or facility, includes the modification (as de­ fined in section 7411(a) of this title) of any source or facility.” 42 U. S. C. § 7479(2)(C).

Section 7411(a) contains the NSPS definition of “modifica­ tion,” which the parties agree is the relevant statutory defi­ nition of the term for both PSD and NSPS. Because of the cross-reference, the definitions of “modification” in PSD and NSPS are one and the same. The term “modification” therefore has the same meaning despite contextual varia­ tions in the two admittedly different statutory schemes.

Congress’ explicit linkage of PSD’s definition of “modifi­ cation” to NSPS’ prevents the Environmental Protection

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Cite as: 549 U. S. 561 (2007)

583

Thomas, J., concurring in part

Agency (EPA) from adopting differing regulatory definitions of “modification” for PSD and NSPS. Cf. IBP, Inc. v. Al­ varez, 546 U. S. 21, 34 (2005) (concluding that an “explicit reference” to a previous statutory definition prohibits inter­ preting the same word differently).

Section 7479(2)(C)’s cross-reference carries more meaning than the mere repetition of the same word in a different stat­ utory context. When Congress repeats the same word in a different statutory context, it is possible that Congress might have intended the context to alter the meaning of the word.

See Atlantic Cleaners & Dyers, Inc. v. United States, 286

U. S. 427, 433 (1932). No such possibility exists with

§ 7479(2)(C). By incorporating NSPS’ definition of “modifi­ cation,” Congress demonstrated that it did not intend for PSD’s definition of “modification” to hinge on contextual fac­ tors unique to the PSD statutory scheme. Thus, United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), which analyzes the mere repetition of the same word in a different statutory context, carries little weight in this situation.

Likewise, this case differs from the circumstance we faced in Robinson v. Shell Oil Co., 519 U. S. 337 (1997). In Robin­ son, we considered whether “employee,” as used in § 704(a) of Title VII of the Civil Rights Act of 1964, included former employees. We determined that under the clear language of the statute, certain statutory provisions using the term “employee” made sense only with respect to former employ­ ees or current employees, but not both. Id., at 342–343.

Accordingly, upon analyzing the context of § 704(a), we were compelled to conclude that the term “employee” included for­ mer employees. This case does not present a similar situa­ tion. The statute here includes a statutory cross-reference, which conveys a clear congressional intent to provide a com­ mon definition for the term “modification.” And the con­ textual differences between PSD and NSPS do not compel

Unit: $U27

[03-28-10 13:36:23] PAGES PGT: OPIN

Thomas, J., concurring in part

different meanings for the term “modification.” Robinson is, therefore, inapplicable.

Even if the cross-reference were merely the equivalent of repeating the words of the definition, we must still apply our usual presumption that the same words repeated in different parts of the same statute have the same meaning. See At­ lantic Cleaners, supra, at 433; ante, at 574. That presump­ tion has not been overcome here. While the broadly stated regulatory goals of PSD and NSPS differ, these contextual differences do not compel different definitions of “modifica­ tion.” That is, unlike in Robinson, reading the statutory definition in the separate contexts of PSD and NSPS does not require different interpretations of the term “modifica­ tion.” EPA demonstrated as much when it recently pro­ posed regulations that would unify the regulatory definitions of “modification.” See 70 Fed. Reg. 61083, n. 3 (2005) (term­ ing the proposal “an appropriate exercise of our discretion” and stating that the unified definition better serves PSD’s goals).

The majority opinion does little to overcome the presump­ tion that the same words, when repeated, carry the same meaning. Instead, it explains that this Court’s cases do not compel identical language to be interpreted identically in all situations. Granting that point, the majority still has the burden of stating why our general presumption does not con­ trol the outcome here. It has not done so.