United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2012 Decided January 15, 2013
No. 11-1256
AMERICAN ROAD & TRANSPORTATION BUILDERS
ASSOCIATION,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
JACKSON,
RESPONDENTS
On Petition for Review of Final Agency Action
of the Environmental Protection Agency
Lawrence J. Joseph argued the cause for petitioner.
With him on the briefs was Nick Goldstein.
Kim Smaczniak, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the briefs was
Michael Horowitz, Attorney, U.S. Environmental Protection
Agency.
Before: ROGERS, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
2
KAVANAUGH, Circuit Judge: The American Road &
Transportation Builders Association has repeatedly sought
judicial review of Environmental Protection Agency
regulations relating to nonroad engines and vehicles. But
ARTBA began bringing those challenges several years after
the regulations were promulgated. As we have explained
before, ARTBA’s challenge to EPA’s regulations is time-
barred under the Clean Air Act’s 60-day filing period. See
American Road & Transportation Builders Association v.
EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009). In this case,
ARTBA is also challenging EPA’s approval of California’s
State Implementation Plan, but that challenge must be brought
in the Ninth Circuit. We therefore dismiss the petition for
review.
I
Section 209(e) of the Clean Air Act preempts certain
state regulation of nonroad engines. See 42 U.S.C. § 7543(e).
The term “nonroad engine” covers a wide variety of internal
combustion engines, including those found in tractors,
construction equipment, lawnmowers, locomotives, and
marine craft. See 40 C.F.R. §§ 89.1, 1068.30. In 1994, EPA
promulgated regulations interpreting the preemptive scope of
Section 209(e). See 59 Fed. Reg. 36,969, 36,986-87 (July 20,
1994); 59 Fed. Reg. 31,306, 31,339 (June 17, 1994). Those
regulations were largely upheld by this Court in Engine
Manufacturers Association v. EPA, 88 F.3d 1075 (D.C. Cir.
1996). In 2002, ARTBA petitioned EPA to amend its
Section 209(e) regulations to broaden their preemptive effect.
In 2008, EPA rejected that petition. See 73 Fed. Reg. 59,034,
59,130 (Oct. 8, 2008). Shortly thereafter, ARTBA brought
suit in this Court to challenge the denial of its petition. See
American Road & Transportation Builders Association v.
3
EPA, 588 F.3d 1109 (D.C. Cir. 2009). We dismissed that suit
for lack of jurisdiction, holding that ARTBA’s claims were
time-barred under the Clean Air Act. Id. at 1110.
The Clean Air Act requires that each state submit to EPA
a State Implementation Plan and any later revisions thereof.
See 42 U.S.C. § 7410. The SIP specifies the state’s chosen
methods of complying with national ambient air quality
standards set by EPA. Id. In 2010, EPA proposed to approve
revisions to the California SIP. See 75 Fed. Reg. 28,509
(May 21, 2010). Those revisions required emissions
reductions from development projects, and arguably required
some emissions reductions from nonroad vehicles such as
construction equipment. Id. at 28,510. ARTBA submitted
comments to EPA requesting that EPA deny the proposed
revisions and again petitioned EPA to amend its
Section 209(e) regulations.
Notwithstanding ARTBA’s comments, EPA approved
the revisions to the California SIP. See 76 Fed. Reg. 26,609
(May 9, 2011). In doing so, EPA declined to revisit its
Section 209(e) regulations, characterizing ARTBA’s petition
for amendment as “little more than a renewal of its earlier
request.” Id. at 26,611. Sixty days later, ARTBA filed suit in
the Ninth and D.C. Circuits. The Ninth Circuit proceedings
have been stayed pending the outcome of this case. See
Order, American Road & Transportation Builders Association
v. EPA, No. 11-71897 (9th Cir. Sept. 12, 2012).
II
This appeal challenges two agency actions: (i) EPA’s
approval of revisions to the California SIP; and (ii) EPA’s
denial of ARTBA’s petition to amend the Section 209(e)
preemption regulations.
4
A
ARTBA challenges EPA’s approval of a 2011 California
SIP revision. EPA argues that, under Section 307(b)(1) of the
Clean Air Act, that challenge must be brought in the Ninth
Circuit. Section 307(b)(1) states, in relevant part:
A petition for review of action of the Administrator in
promulgating any national primary or secondary ambient
air quality standard . . . or any other 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. A petition for review of the Administrator’s
action in approving or promulgating any implementation
plan . . . or any other final action of the Administrator
under this chapter . . . which is locally or regionally
applicable may be filed only in the United States Court of
Appeals for the appropriate circuit. Notwithstanding the
preceding sentence a petition for review of any action
referred to in such sentence may be filed only in the
United States Court of Appeals for the District of
Columbia if such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is
based on such a determination.
42 U.S.C. § 7607(b)(1) (emphases added).
This statutory language establishes two routes by which
venue may be appropriate in this Court. First, EPA’s
regulations may themselves be nationally applicable. Second,
and alternatively, EPA may determine that the otherwise
locally or regionally applicable regulations have a nationwide
scope or effect. Here, ARTBA has failed to demonstrate that
5
EPA’s approval of the California SIP revision meets either
test for obtaining review in this Court. Venue is therefore
proper in the Ninth Circuit.
First, the California SIP rulemaking was not nationally
applicable. Under Section 307(b)(1), EPA’s “action in
approving or promulgating any implementation plan” is the
prototypical “locally or regionally applicable” action that may
be challenged only in the appropriate regional court of
appeals. See Texas Municipal Power Agency v. EPA, 89 F.3d
858, 866 (D.C. Cir. 1996); see also ATK Launch Systems, Inc.
v. EPA, 651 F.3d 1194, 1199 (10th Cir. 2011) (describing
SIPs as “purely local action” and “undisputably regional
action”). And in determining that a SIP approval is a “locally
or regionally applicable” action, this Court need look only to
the face of the rulemaking, rather than to its practical effects.
See Natural Resources Defense Council, Inc. v. Thomas, 838
F.2d 1224, 1249 (D.C. Cir. 1988).
Second, EPA declined to find that this otherwise locally
or regionally applicable action has “nationwide scope or
effect.” As an initial matter, EPA asserts that its decision
whether to make such a finding is not judicially reviewable.
Given the statutory text, EPA argues that a court cannot
review EPA’s decision to decline to make a nationwide scope
or effect determination. But we need not cross that bridge in
this case. Even assuming that we can review EPA’s refusal
under the deferential Administrative Procedure Act arbitrary
and capricious standard, see 5 U.S.C. § 706, it was not
unreasonable for EPA to decline to make a “determination of
nationwide scope or effect” in this case. Nothing in the
California SIP approval contemplated nationwide scope or
effect, and EPA emphasized in its response to ARTBA’s
comments that the SIP revisions could be lawfully applied
6
“only to certain development projects within the geographic
jurisdiction covered.” 76 Fed. Reg. 26,609, 26,612 (May 9,
2011). ARTBA counters that the SIP approval applies a
broad regulation to a specific context and that it may set a
precedent for future SIP proceedings. Although both of those
statements may be factually accurate, neither characterization
distinguishes this action from most other approvals of SIPs or
SIP revisions – which, again, unequivocally fall in the
“locally or regionally applicable” category. EPA’s decision
not to make a “determination of nationwide scope or effect”
thus was not unreasonable.
In this case, then, a challenge to the California SIP
revision must be – and, notably, already has been – filed in
the Ninth Circuit. See Petition for Review, American Road
& Transportation Builders Association v. EPA, No. 11-71897
(9th Cir. July 8, 2011). Because venue is proper in the Ninth
Circuit and not in this Court, we dismiss ARTBA’s challenge
to EPA’s approval of the California SIP revision.
B
ARTBA’s primary objective in this Court is to obtain a
fresh round of judicial review of EPA’s Section 209(e)
preemption regulations. See 40 C.F.R. § 1074.10; id. Part 89,
Subpart A, Appendix A. ARTBA most recently petitioned
EPA to amend those regulations in conjunction with
ARTBA’s comments on a 2011 California SIP revision. EPA
rejected the petition as duplicative of arguments the agency
had already rejected in 2008, and as inappropriate in light of
the limited scope of the California SIP proceedings. See 76
Fed. Reg. 26,609, 26,611-12 (May 9, 2011). ARTBA seeks
review of the denial of its petition, but its claims are time-
barred under the Clean Air Act for many of the same reasons
7
this Court explained in 2009 in dismissing a similar challenge.
See American Road & Transportation Builders Association v.
EPA, 588 F.3d 1109 (D.C. Cir. 2009) (ARTBA I).
Section 307(b)(1) of the Clean Air Act sets a 60-day
period for challenges to EPA regulations, with a renewed 60-
day period available based on the occurrence of after-arising
grounds. 1 EPA promulgated the Section 209(e) regulations in
their current form in 1997. See 62 Fed. Reg. 67,733, 67,736
(Dec. 30, 1997). The question is whether there is an after-
arising ground here that permits ARTBA now to challenge
EPA’s Section 209(e) regulations.
ARTBA argues that it petitioned for amendment of the
regulations as part of its comments on the California SIP
revision and that the denial of its petition qualified as an after-
arising ground. With most agency regulations, we apply the
general rule that, after a statute of limitations period has run, a
party who seeks judicial review of the regulations may choose
“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, 196 (D.C. Cir. 1987). But
there is an exception to that general rule for statutory schemes
in which Congress “specifically address[ed] the consequences
of failure to bring a challenge within the statutory period.”
National Mining Association v. Department of the Interior, 70
F.3d 1345, 1350 (D.C. Cir. 1995). In ARTBA I, we held that
1
“Any petition for review under this subsection shall be filed
within sixty days from the date notice of such promulgation,
approval, 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.” 42 U.S.C.
§ 7607(b)(1).
8
the Clean Air Act is one such statutory scheme. See 588 F.3d
at 1113; see also National Mining, 70 F.3d at 1350 n.2. Thus,
the denial of a petition for amendment does not constitute an
after-arising ground that permits the petitioning party to seek
review in this Court outside the original 60-day window for
challenging the promulgation of Clean Air Act regulations.
See ARTBA I, 588 F.3d at 1113.
In ARTBA I, the Court did, however, also discuss two
specific exceptions to the Clean Air Act’s stringent limitations
period: ripeness and reopening. See id. at 1113-16. Neither is
applicable here, for the same reasons we discussed in 2009.
First, as explained in ARTBA I, the occurrence of an event that
ripens a claim constitutes an after-arising ground. See id. at
1113-14. None of the grounds for ARTBA’s petition – a
1998 rulemaking about the scope of locomotive preemption, a
2004 statutory amendment, or several Supreme Court
opinions through 2009 – can make ARTBA’s claim newly
ripe years after those developments took place. See id. at
1114. ARTBA does not assert that the approval of the
California SIP ripened its claim. Nor could it: ARTBA’s
claims about the Section 209(e) regulations have been ripe at
least since 2009. Second, an agency may reexamine its
regulations and thereby initiate a new 60-day period of
judicial review. As this Court held in ARTBA I, however, an
agency’s response to a petitioner’s comments cannot provide
the sole basis for reopening. See id. at 1114-15. EPA here
replied to ARTBA’s comments on the California SIP revision
only to recognize the comments and, in doing so, expressly
stated that it was not reopening its Section 209(e) regulations.
See 76 Fed. Reg. at 26,612.
ARTBA contends that ARTBA I does not control this case
because ARTBA I involved a bare petition for amendment,
9
while this case involves a petition for amendment of the
Section 209(e) regulations coupled with an application of
those regulations to the California SIP approval. That is a
distinction without a difference.
ARTBA I noted that the restrictive National Mining
scheme did not imply “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.”
ARTBA I, 588 F.3d at 1113. But the Section 209(e)
regulations were not applied in an enforcement proceeding in
this case, as ARTBA recognized at oral argument, and we
therefore need not address the possibility of a challenge in the
enforcement context. 2
Moreover, if the mere application of a regulation in a SIP
approval were sufficient to constitute an after-arising ground
and trigger a new 60-day statute of limitations period, ARTBA
I’s concerns about preserving “the consequences” of failing to
bring a challenge within 60 days of a regulation’s
promulgation would be meaningless. See ARTBA I, 588 F.3d
2
Section 307(b)(2) of the Clean Air Act states that EPA action
that could have been reviewed within the 60-day window “shall not
be subject to judicial review in civil or criminal proceedings for
enforcement.” 42 U.S.C. § 7607(b)(2). The Supreme Court has
fielded claims about the due process implications of that provision,
although it has not yet definitively ruled on its constitutionality.
See, e.g., Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 n.9
(1980); Adamo Wrecking Co. v. United States, 434 U.S. 275, 289-
91 (1978) (Powell, J., concurring); see also Chrysler Corp. v. EPA,
600 F.2d 904, 913 (D.C. Cir. 1979) (noting the “nagging presence
of a substantial due process question”). Because the contested
regulations were not applied here in an enforcement proceeding, we
need not confront the relevance of Section 307(b)(2).
10
at 1113; see also National Mining, 70 F.3d at 1351 (“Such an
interpretation would make a mockery of Congress’ careful
effort to force potential litigants to bring challenges to a rule
issued under this statute at the outset . . . .”). There would be
no pressure to challenge regulations within the 60-day period
after their promulgation if any petitioner could simply wait to
test the substance of those regulations once EPA applies them,
for example, in an approval of a state SIP revision – as
ARTBA has attempted to do here.
Therefore, as we did in ARTBA I, we hold that ARTBA’s
challenge to EPA’s Section 209(e) regulations is time-barred.
***
The petition for review is dismissed. 3
So ordered.
3
We deny EPA’s request for attorney’s fees under Fed. R.
App. P. 38.