Jan 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1256. On Petition for Review of Final Agency Action of the Environmental Protection Agency. In its introductory summary, the Appeals Court explains, "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."
The case involves Section 209(e) of the Clean Air Act which 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. In 2002, ARTBA petitioned EPA to amend its Section 209(e) regulations to broaden their preemptive effect. In 2008, EPA rejected that petition. Shortly thereafter, ARTBA brought suit in this Court to challenge the denial of its petition. The D.C. Circuit dismissed that suit for lack of jurisdiction, holding that ARTBA's claims were time-barred under the Clean Air Act.
The latest appeal by ARTBA challenges two EPA 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. On the first action the Appeals Court ruled, "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."
On the second action, the Appeals Court reiterated its decision in ARTBA I and said further, ". . .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 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."
Access the complete opinion (click here). [#Air, #CADC]
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