American Road & Transportation Builders Ass'n v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2009 Decided December 11, 2009

No. 08-1381

AMERICAN ROAD & TRANSPORTATION BUILDERS
ASSOCIATION,
PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
JACKSON, IN HER OFFICIAL CAPACITY,
RESPONDENTS

AND

ASSOCIATION OF AMERICAN RAILROADS, ET AL.,
INTERVENORS

On Petition for Review of an Order
of the Environmental Protection Agency

Lawrence J. Joseph argued the cause for petitioner. With
him on the brief was Nick Goldstein.

David Gunter, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
John C. Cruden, Acting Assistant Attorney General, and
 2

Michael Horowitz, Attorney, U.S. Environmental Protection
Agency.

Kathleen A. Kenealy, Deputy Attorney General, Attorney
General’s Office for the State of California, argued the cause
for intervenors California Air Resources Board, et al. in
support of respondent. With her on the brief were Edmund G.
Brown, Jr., Attorney General, Mary E. Hackenbracht, Senior
Assistant Attorney General, Kurt R. Wiese, and Barbara
Baird. Aaron S. Colangelo entered an appearance.

Louis P. Warchot and Michael J. Rush were on the brief
for intervenor Association of American Railroads in support
of respondent.

Vickie L. Patton and Sean H. Donahue were on the brief
for amici curiae American Lung Association, et al. in support
of respondent.

Before: GARLAND and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

WILLIAMS, Senior Circuit Judge: The American Road
and Transportation Builders Association is a trade
organization representing the “transportation construction
industry”—companies that build roads, public transit systems,
airports and the like. In 2002 ARTBA, as the group calls
itself, petitioned the U.S. Environmental Protection Agency to
amend two regulations implementing § 209(e) of the Clean
Air Act (codified at 42 U.S.C. § 7543(e)). EPA had originally
promulgated the provisions at issue—40 C.F.R. § 85.1603 and
40 C.F.R. pt. 89, subpt. A, App. A—in 1994, 59 Fed. Reg.
36,969, 36,986 (July 20, 1994); 59 Fed. Reg. 31,306, 31,339
(June 17, 1994), and then readopted them in 1997, 62 Fed.
 3

Reg. 67,733, 67,736 (December 30, 1997). After a bit of
litigation over the agency’s failure to act on ARTBA’s
petition, EPA formally opened it to public comment in 2007,
72 Fed. Reg. 28,098, 28,209-10 (May 18, 2007), then rejected
it in 2008, 73 Fed. Reg. 59,034, 59,130 (October 8, 2008).
Shortly thereafter, ARTBA sought review in this court. We
now dismiss that suit for lack of jurisdiction, on the grounds
that National Mining Association v. U.S. Department of the
Interior, 70 F.3d 1345 (D.C. Cir. 1995), requires us to treat
ARTBA’s petition to EPA as a challenge to the regulations it
sought revised, and that judicial review of such a challenge is
time-barred under Clean Air Act § 307(b)(1), 42 U.S.C.
§ 7607(b)(1).

* * *

Clean Air Act § 209(e) prohibits states from imposing
certain emissions-related regulations on various categories of
engines and vehicles. ARTBA takes the position that EPA’s
rules interpreting § 209(e) have the effect of allowing states to
adopt precisely the kinds of regulations that the statute
forbids—partly because the rules are insufficiently
comprehensive, and partly because some of their content is
inconsistent with the statutory language. So, for example,
ARTBA asked EPA to amend one of its regulations, 40 C.F.R.
§ 85.1603, to make clear that among the laws preempted are
“fleet average standards,” which prescribe emissions limits for
an operator’s suite of vehicles in the aggregate. See Engine
Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S.
246, 249-50 (2004). The request that EPA revise 40 C.F.R.
pt. 89, subpt. A, App. A, by contrast, reflected ARTBA’s view
that that provision affirmatively deems permissible state
regulations that the statute, properly construed, prohibits. In
response to ARTBA’s petition, EPA offered a lengthy
analysis disputing that further specificity was warranted where
 4

ARTBA sought it, and defending the interpretations that
ARTBA argued were wrong.

In opposition to the present action, the agency suggests
two reasons why our jurisdiction does not extend to ARTBA’s
suit. One is the time-bar issue mentioned above; the other is a
contention that ARTBA cannot establish constitutional
standing.

Article III of the Constitution requires ARTBA, of
course, to allege an injury that is fairly traceable to the
agency’s conduct and redressable by this court. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In EPA’s
view, ARTBA has failed to do so with respect to each of the
numerous putative harms it identifies, including among others
injuries arising from state air quality remediation plans
requiring EPA’s approval. See Clean Air Act
§ 110(a)(2)(E)(i), 42 U.S.C. § 7410(a)(2)(E)(i). This court’s
decision in Louisiana Environmental Action Network v.
Browner, 87 F.3d 1379 (D.C. Cir. 1996) (“LEAN”), the
government claims, “squarely defeats ARTBA’s standing
argument” to the extent it hinges on injury attributable to “any
state regulation that EPA must approve.” Respondent’s Br. at
29.

The government drastically overreads LEAN. There
several petitioners challenged an EPA rule establishing
procedures for deciding whether to approve state
implementation plans under the Clean Air Act. 87 F.3d at
1381. One complaint was that the rules might allow EPA to
approve a state regulation, and enforce it as a federal one,
even though it was more stringent than any regulation the
EPA could have implemented on its own. Id. at 1383-84. The
party seeking relief, however, “identified no state—never
mind a state in which one of the [relevant] petitioners
operates—that has adopted any more stringent rule which is or
 5

is about to be federalized by the EPA.” Id. at 1384.
Regarding the harms alleged as “hypothetical,” we found a
want of standing. Id.

Thus LEAN is simply an application of the conventional
understanding that highly speculative concerns do not satisfy
Article III’s injury-in-fact requirement; it is not a holding that
the injuries threatened by EPA rules governing future
assessment of proposed state implementation plans are per se
unduly remote. The canonical “actual or imminent” threat of
injury remains, of course, perfectly sufficient for standing
purposes. See Lujan, 504 U.S. at 560; Summers v. Earth
Island Inst., 129 S.Ct. 1142, 1149 (2009).

ARTBA, for its part, has pointed to no fewer than four
state regulatory regimes that, it alleges, currently subject its
members to burdensome laws that are not permitted under the
Clean Air Act, and that either have been approved by EPA or
are to be submitted for its approval. Petitioner’s Br. at 26-27.
If the federal rules ARTBA sought to have revised really do
allow such state regulations, then the harms ARTBA members
are currently suffering as a result of already-approved state
plans—and would plausibly suffer as a result of future EPA
approvals—are sufficiently attributable to those federal rules
to satisfy the “fairly traceable” prong of the standing inquiry.
See Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d
426, 438-43 (D.C. Cir. 1998) (en banc). And in the event that
we agreed with ARTBA’s substantive views, we could order
EPA to reconsider its decision to stand pat on its existing
rules. This is the remedy we typically afford meritorious
petitions seeking review of agency decisions not to initiate
rulemakings, and we have obviously never regarded such
relief too speculative to satisfy constitutional standing
requirements. See, e.g., Massachusetts v. EPA, 549 U.S. 497,
534-35 (2007); American Horse Protection Ass’n v. Lyng,
 6

812 F.2d 1, 7 (D.C. Cir. 1987). Standing, in short, is not
ARTBA’s problem.

* * *

What dooms the organization’s petition in this forum
instead is subject matter jurisdiction. The section of the Clean
Air Act that simultaneously authorizes and limits judicial
review of EPA activity provides in relevant part:

A petition for review of . . . any . . . nationally
applicable regulations promulgated, or final action taken,
by the Administrator under this chapter may be filed only
in the United States Court of Appeals for the District of
Columbia. . . . Any petition for review under this
subsection shall be filed within sixty days from the date
notice of such promulgation . . . or action appears in the
Federal Register, except that if such petition is based
solely on grounds arising after such sixtieth day, then any
petition for review under this subsection shall be filed
within sixty days after such grounds arise.

Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1). ARTBA
filed suit in this court within 60 days of EPA’s decision
rejecting the organization’s petition for rules amendments.
The question is whether that agency action opened a new
filing window—or if instead we are obliged to treat a petition
to revise regulations as a challenge to their promulgation, with
the result that the relevant chronological analysis runs from
that earlier date.

The general rule is that it is a perfectly valid “method of
obtaining judicial review of agency regulations once the
limitations period has run . . . to petition the agency for
amendment or rescission of the regulations and then to appeal
the agency’s decision.” NLRB Union v. FLRA, 834 F.2d 191,
 7

196 (D.C. Cir. 1987). One twist is that not all types of
petitions for rulemakings are treated equally. If the request
for new rules is predicated on an alleged procedural defect in
the promulgation of the existing rules, then we view the
petition as a direct challenge to the original enactment—
which will be time-barred if it falls outside the period in
which judicial review of the promulgation is permitted. Id.;
Natural Resources Defense Council v. NRC, 666 F.2d 595,
602 (D.C. Cir. 1981). On the other hand, agency denial of a
petition for a new rulemaking which complains of substantive
infirmities in existing rules is, for the most part, judicially
reviewable irrespective of time limits dating from the rules’
enactment. Professional Drivers Council v. Bureau of Motor
Carrier Safety, 706 F.2d 1216, 1217-18, n.2 (D.C. Cir. 1983)
(“This court has scrutinized regulations immune from direct
review by reviewing the denial of a subsequent rulemaking
petition which challenged the regulation on demonstrable
grounds of substantive invalidity.”) (emphasis in original,
internal quotation marks omitted); NLRB Union, 834 F.2d at
196 (“[A] petitioner’s contention that a regulation should be
amended or rescinded because it conflicts with the statute
from which its authority derives is reviewable outside of a
statutory limitations period.”) (emphasis in original);
Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir.
1958).

We have subjected that general rule, however, to an
exception. National Mining Association identified a
circumstance in which an agency’s denial of a revision-
seeking petition does not allow review of alleged substantive
defects in the original rule, even under the deferential
standards applicable to review of such denials, outside the
statutory limitations period running from the rules’ original
promulgation: the case in which Congress has “specifically
address[ed] the consequences of failure to bring a challenge
within the statutory period.” 70 F.3d at 1350. We
 8

characterized the statutes at issue in NLRB Union, Functional
Music, and similar cases as “not explicitly say[ing]” that
“Congress meant totally to foreclose review after the statutory
period.” Id. If Congress “directly focused on the issue,”
however, a different outcome results: judicial review of a
petition to repeal or revise rules is time-barred, except to the
extent that the statute allows review based on later-arising
grounds. Id.

Specifically, National Mining Association held that the
following language—in that case from the Surface Mining
Control and Reclamation Act—amounted to an explicit
decision to preclude review of repeal- or revision-seeking
petitions filed outside the statutory deadlines:

A petition for review of any action subject to judicial
review under this subsection shall be filed in the
appropriate Court within sixty days from the date of such
action, or after such date if the petition is based solely on
grounds arising after the sixtieth day.

Id. (emphasis omitted). We noted, moreover, that “Congress
has adopted similar limitations on judicial review in other
environmental statutes,” citing among others our own
limitation here, Clean Air Act § 307(b)(1). Id. at n.2.
National Mining did not, so far as we can discern, suggest that
such language implied any sort of limitation on the recognized
ability of a party against whom a regulation is enforced to
contest its validity in the enforcement context. See, e.g.,
NLRB Union, 834 F.2d at 195-96.

We cannot make out any material distinction—at any rate
any distinction helpful to petitioner—between the statutory
language at issue in National Mining Association and the
statutory language at issue here. Section § 307(b)(1) in fact
imposes one additional constraint on petitions brought outside
 9

the original 60-day window based on after-arising grounds:
they must be filed within 60 days of the new event, rather than
any time after it. National Mining Association therefore
compels the conclusion that ARTBA’s 2008 petition for
judicial review is time-barred for falling outside the 60-day
period that § 307(b)(1) provided for court challenges to the
1997 re-promulgation of 40 C.F.R. § 85.1603 and 40 C.F.R.
pt. 89, subpt. A, App. A—at least insofar as the petition raises
points that could have been brought to our attention in 1997.
See 70 F.3d at 1350, 1352.

ARTBA offers two reasons why, in its view, we have
jurisdiction in any event. First is the argument that the
limitations period in § 307(b)(1) can run only against ripe
challenges. Since ARTBA had no ripe claim when EPA re-
promulgated the rules, the suggestion goes, the organization is
permitted to attack them now. This line of reasoning
implicates two procedural questions: when freshly ripened
claims may be raised under § 307(b)(1); and where they
should be filed.

We answered the first of these in LEAN. While we
agreed with petitioner that § 307(b)(1)’s provision for judicial
review after the initial filing period for suits based on newly
arising grounds encompassed the occurrence of an event that
ripens a claim, 87 F.3d at 1385, we noted the section’s explicit
requirement that a petition predicated on any such new event
be filed within 60 days of the event. Id.

The question where, precisely, a party is supposed to file
such a claim matters, among other reasons, because it
determines which filing of ARTBA’s is the one that must
have come within 60 days of some after-arising ground—the
2002 petition to EPA, or the 2008 petition to this court. The
answer is less straightforward than it may appear. Our cases
on the matter start with Oljato Chapter of the Navajo Tribe v.
 10

Train, 515 F.2d 654, 666 (D.C. Cir. 1975), where we said that
it was “within our inherent powers to enforce our interest in
informed decision-making by requiring presentation to the
Administrator of any new information thought to justify
revision of a standard . . . reviewable under Section 307.” Of
course the ripening of a petitioner’s claim is hardly the sort of
novelty that seems to require special agency reaction. Later
we raised the ante by characterizing this rule as jurisdictional,
The Group Against Smog and Pollution, Inc. v. EPA, 665 F.2d
1284, 1290 n.45 (D.C. Cir. 1981), see also Natural Resources
Defense Council, Inc. v. Thomas, 845 F.2d 1088, 1091-92
(D.C. Cir. 1988), but those cases, like Oljato, involved claims
that new information called for a rule change—not that a
potential claim had become newly justiciable.

As it happens, ARTBA cites no event (other than EPA’s
decision rejecting its petition, which National Mining
Association says doesn’t count) that would bring either filing
within any newly opened 60-day window. ARTBA makes
some reference, albeit in the context of discussing a different
matter, to a 2001 Texas law imposing diesel emission limits
that ARTBA says is in fact preempted by § 209(e) and that
“imposes additional costs and regulatory burdens on
ARTBA’s members,” Petitioner’s Br. at 26—but that law took
effect well over 60 days before the organization’s July 12,
2002 petition to EPA. Another event that ARTBA sees as
significant is EPA’s 1998 rulemaking concerning the scope of
federal preemption of state regulations of new locomotive
engines, which was also obviously too remote in time.
Finally, ARTBA now seeks to make hay of a 2004 Supreme
Court decision and a 2004 statutory amendment—neither of
which can render its 2002 petition or its 2008 appeal “filed
within sixty days after such grounds arise.” See § 307(b)(1).
Because we find that none of these events satisfies the 60-day
criterion in § 307(b)(1) for challenges based on after-arising
grounds, we need not determine where ARTBA should have
 11

filed in order to invoke § 307(b)(1)’s provision for after-
arising grounds, nor whether ARTBA’s petition met the
additional requirement that it be “based solely” on those
grounds.

ARTBA next argues that an EPA rulemaking in 2007-08
effectively reopened the regulations now at issue to judicial
review. See National Ass’n of Reversionary Prop. Owners v.
Surface Transp. Bd., 158 F.3d 135, 141 (D.C. Cir. 1998)
(“NARPO”) (describing the “reopening doctrine”). It does not
rest on the fact that EPA responded to its arguments. We
rarely if ever find such a response sufficient; if a party were
allowed to “goad an agency into a reply, and then sue on the
grounds that the agency . . . re-opened the issue,” Am. Iron &
Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989), the
agency’s thorough answer would put it at risk of “reopening,”
while a taciturn response would put it at risk of being faulted
for acting without reasoned decisionmaking. See National
Min. Ass’n, 70 F.3d at 1351. Rather, ARTBA contends that in
the course of the separate rulemaking the agency conducted
simultaneously with the publication and rejection of
ARTBA’s petition, EPA effectively reconsidered the totality
of its § 209(e) regulatory framework.

What EPA in fact did in its rulemaking notice was to
describe the existing statutory regime, identify the regulations
that implement it, and lay out several discrete potential
amendments, abjuring any intent to introduce substantive
changes except in two designated realms:

We are proposing to create a new part 1074 that would
describe the federal preemption of state and local
emission requirements. This is being done as part of
EPA’s ongoing effort to write its regulations in plain
language format in subchapter U of title 40 of the CFR.
The proposed regulations are based directly on the
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existing regulations in 40 CFR part 85, subpart Q. With
the exception of the simplification of the language and
specific changes described in this section, we are not
changing the meaning of these regulations.

72 Fed. Reg. at 28,209/2-3 (emphasis added). The “specific
changes” the agency referenced consisted of two new
regulations, both implementing recent legislation preempting
states other than California from imposing certain emissions-
related rules on a new class of small engines. Id. In the final
rule announcement, EPA carried out its proposal, repeating
the language quoted above more or less verbatim. 73 Fed.
Reg. at 59,130/1. Consistent with its asserted intention to
rewrite the relevant regulations in plain language without
changing their meaning, EPA also republished its § 209(e)
rules in full. Id. at 59,380.

Considering “the entire context of the rulemaking,”
NARPO, 158 F.3d at 141, we conclude that EPA did not
reopen consideration of the regulations ARTBA asked it to
revise. Seemingly on ARTBA’s side are Ohio v. EPA, 838
F.2d 1325, 1328 (D.C. Cir. 1988), and Montana v. Clark, 749
F.2d 740, 744 (D.C. Cir. 1984), cases in which the agency
included the pre-existing regulation in a Notice of Proposed
Rulemaking and responded to comments on provisions later
alleged to have been reopened; in both cases we found a
reopening. But here, as in National Mining Association, any
such responses were in answer to comments received pursuant
to the publication of petitioner’s own call for revisions, which,
as we said in National Mining, “is not, without much more,
sufficient to trigger the reopener doctrine.” 70 F.3d at 1352.
Though addressing feedback from ARTBA and others, the
agency gave no “indication that [it] had undertaken a serious,
substantive reconsideration” of the rules in question. See id.
In fact, EPA went further, saying explicitly in its Notice of
Proposed Rulemaking that it was “not proposing to adopt the
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. . . changes requested by ARTBA in its petition.” 72 Fed.
Reg. at 28,209/3. As had the agency in National Mining, EPA
appears merely to have sought comments on the premise that
they might have persuaded it to actually reopen the matter.
See 70 F.3d at 1351.

Finally, ARTBA identifies one further piece of evidence
indicating that EPA reconsidered the relevant regulations. In
2006, the organization filed suit alleging that EPA was
unreasonably delaying action on ARTBA’s 2002 petition. See
Am. Rd. & Transp. Builders Ass’n v. EPA, No. 06-1112 (D.C.
Cir., Oct. 5, 2007). In the course of that litigation, EPA
argued that the case was moot since the agency had
“‘commenced a rulemaking on the issues ARTBA raised.’”
See Reply Br. at 7 (quoting No. 06-1112, Resp. Mot. to
Dismiss at 3). In ARTBA’s view, this language amounts to a
concession by EPA that it was reopening the rules ARTBA
challenged. But even a cursory glance at the phrase, in its
original context, reveals that EPA was simply referring to its
publication of ARTBA’s petition, rather than stipulating for
the purpose of that case and this one that the agency was
revisiting the rules to the extent necessary to reopen them to
judicial review. See National Min. Ass’n, 70 F.3d at 1351
(“The decision to publish a petition for rule-making . . . is not
evidence of a reexamination of the policy at issue in the
petition.”).

We conclude that we are without jurisdiction to hear this
petition. Accordingly, the case is

Dismissed.