Petition for Writ of Certiorari — American Road & Transportation Builders Ass'n v. Environmental Protection Agency

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supreme Court, U.S.

FILED

091463 JUN 3 2010

OFFICE OF THE CLERK

No.

Ju The

Supreme Court of the Anited States

AMERICAN ROAD & TRANSPORTATION BULLDERS ASS’N

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, E77 Al

RESPONDENTS

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the

District of Columbia Circuit

PETITION FOR WREE OF CERTIORARI

Nick Goldstein Lawrence Joseph®

AR TBA ‘Pransportation 1250 Connecticut Ave,

Development Legal NW, Suite 200

Advocacy & Educ. Ctr Washington, DC 20086

1219 28th Street NW Tel (202) 669-5185

Washington, DC 20007 Fax (20%) 318-2254

Tel (202) 289-4434 Email h@larryyoseph.com

Max (202) 289-4435 * Counsel of Record

QUESTIONS PRESENTED

for gudicial-review statutes such as Clean Air

Act Section 807(b)1), 42 U.S.C. §7607(b)Q1), that

provide a 60-day window within which to petition for

review of final agency action directly in a court of

appeals and that limit further review to after-arising

errounds, do such statutes provide jurisdiction for

courts to hear petitions for review filed within 60

days of agency denials of rulemaking petitions under

09 U.S.C. §553(e), as distinct from jurisdiction for only

those petitions filed within 60 days of the arising of

some new information?

Whether re-promulgating a rule in its entirety

“reopens” the rule to judicial review?

Whether a pmor holding that a notice of

proposed rulemaking mooted unreasonable-delay

and constructive-denial claims on an administrative

petition has preclusive etfect on the issue of whether

the agency reopened the rule sufficiently to reopen

yudicial review?

Ioissue preclusion otherwise would reopen

yudioial review, whether the court of appeals — as

distinct from district courts under Clean Air Act

§304(a)(2), 42 U.S.C. §7604(a)(2) — have jurisdiction

for such unreasonable-delay claims?

Whether three-judge panels are bound by the

earher decision in an intra-circuit split in authority?

PARTIES TO THE PROCEEDING

Petitioner American Road & Transportation

Builders Association (ARTBA”’) is a District of

Columbia nonprofit trade organization with more

than 5,000 members from all sectors and modes of

the transportation construction industry (ncluding

without limitation roads, public transit, airports

ports, and waterways) and represents the collective

interests of the U.S. transportation construction

industry before the national executive, legislative,

and judicial branches of povernment.

Khespondents are the federal Environmental

Protection Agency and its Administrator Lisa

Jackson in her official capacity, as well as the

interveners in the court of appeals: the Association of

American Railroads, a railroad trade association:

South Coast Air Quality Management District, an

air-pollution control agency for the Los Angeles area;

California Air Resources Board, the California state

air-pollution control agency; and Natural Resource:

Defense Council, an environmental advocacy group.

Pursuant to this Court’s Rule 29.6 petihioner

ARTBA states that it as a non-profit’ trade

organization and that no publicly held company own:

any interest 1n it

TABLE OF CONTENTS

Question Presented

Parties to the Proceeding

‘Table of Content

Appendis

‘Table of Authoritie:

Petition for Writ of Certiorari

Opimions Below

Jurisdiction

Authorities Involved

Statement of the Case

Factual Backpround

statutory Background

Regulatory Background

Reasons to Grant the Writ

| &S07(b) and All W rit: Act Provide heview ol

Petition-Denial Claim

\ &$307(b) Cannot Bar Previously Unrips

(‘laim:

13 S307(b) Require: Pre Suit Petition

() Panel Deviates from Other Circuit

Id. All Writs Act Allows Review, ven if

¢ SOT Ch) ldoe: Not

1 | ae promulgation re Opel. Keview

lll. Issue Preclusion Requires Reopenc)

V. CAA Review Raises Important Issue

Conclusion

lil

IV. Karher Decisions Control Intra-Cireuit Splits

APPENDIX

Am. ftoad & Transportation Builders Ass'n v. EPA,

No. 08-1381 @D).C. Cir. Dee. 11, 2009)

(decision) ......... la

Ami po & Transportation Builders Assn v. PA,

No. 08-1881 (D.C. Cir. Der Ll, 2009)

PURINE IIe fs cocaateaastevceneshusdcsesieseavesss .. 15a

Am. Road & Tran: portation tines ‘s sn uv. KPA,

No. 08-1381 (D.C. Cir. Mar. 5, stan ioudas

denying panel Ree aeE seu a das saad eae anes lGa

Am. load 7 Transportation Builders Ass'n v. ePA,

No. 08-1881 (D.C. Cir. Mar. 5, 2010) (order

denying ereerie Oh SUR cs occas verre ie

Control of Emissions from Nonroad Spark-Jgnition

Mngines and Equipment, 72 Ked. Reg. 28,098

(2007) (notice of proposed rulemaking) ............. ISa

Kesponse to the Petition of American Road &

Transportation Builders Association to Amend

Regulations Regarding the Preemption of State

Standards Regulating missions from Nonroad

Engines (2008) (petition denial) .....................08. 2a0

Control of missions from Nonroad spark-lgnition

kengines and Equipment, 73 FR 59,0384 (2008)

(final rule) &8a

Administrative Procedure Act , §4(e), 5 U.S.C

ER ace vad fad cad oanaken grasa eines anne hina an eeteas aes svasen ee

All Writs Act. BE UF A, SUGGIED oiviccccsescccves .. 92a

Clean Air Act §] 10(a)(2)(E)G), 42 U.S.¢

874 10(a)C2) (IK) Q)...... oe ... 92a

Clean Air Act. §209, 42 U.S.C. §7548.... 92a

Clean Air Act $307(b), 42 U.S.¢ ' §7607(b) tein arsenal

Pub. LL. No. 108-199, §428, 118 Stat 2.

418-19 (2004) (Bond Amcndment’)..... cnceces GOR

BO OB. BE RG CRD occ ivcss cn ansschsdecss ceiidccas ae

40 CER. §85.1603 (1995) A 100

Pe EES ici cr 1a cavcwox uc ce taancus as coxcceden acura 1O038a

40 C.F.R. §1074.10 .. . 104a

ce Re hd a es ance coneedas conde eda erenaeaes 104a

See ee MEE oa s'gna ccs occ su andoursavesdsedauacuscacsoaes LO5a

4A0 C.FLR pt. &9, App Tey ee PEN NRE a

KPA Mot. to Dismiss for Mootness, Am. Road &

Transportation Butlders Ass'n vo. EPA,

mo. 06-1112 @).C: <r. Sept. 12, ZO0T? «i. .c0006:. LOSa

ARTBA Opp'n to EPA Mot. for Leave to File Out-of-

Time Procedural Motion, Am. Road &

Transportation Builders Ass'n v. HPA,

No. 06-1112 (D.C. Cir. Sept. 13, 2007) ............ 112a

Am. Road & Transportation Builders Ass’n v. EPA,

No. 06-1112 (D.C. Cir. Oct. 5, 2007) ..............-. llba

Natl Ass'n of Home Builders v. San Joaquin Valley

Unifted Atr Pollution Control Dist., O8-17309 (9th

SZ RR, PNP ches aan Conacaseacenncisesserseevece, Nes 6 ae

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. U.S.,

BGO UID, BIO CLOTS) vcccccccovsccscvescess

Allen v. Wright, 468 U.S. 737 (1984) 17

Am. Lung Ass'n v. Reilly, 962 F.2d 258 (2d Cn

4)! 94 ee a aeek +e Lv

Am. Road & Transportation Builders Ass'n v

HPA, No. 06-1112 (D.C. Cir. Oct. 5, 2007) .. 5-6, 28

Am. Road & Transportation Builders Ass’n v.

IPA, 588 F.3d 1109 (D.C. Cir. 2009) passim

Atonto v. Wards Cove Packing Co., Inc., 810 F.2d

1477 (9th Cir. 1987) (en bane) ....... Ph aoe ee

Auer v. Robbins, 519 U.S. 452 (1997)....... pee

Baker v. Gen. Motors Corp., 922 U.S. 222 (1998). 22

Balttumore Gas & Klec. Co. v. ICC, 672 F.2d 146

(OE a Re RS ) . D 9, 1/-33

Chevron, ULS.A., Inc. v. NRDC, 467 U.S. 8387

3)... ) ee Re PRON pee Pea. sats 02°00

Consolidation Coal Co. v. Donovan, 656 F.2d 910

(3d Cir. 1981) 18, 235

Dickinson v. Zurko, 5627 U.S. 150 (1999)................. 2]

Dozier v. kord Motor Co., 702 F.2d 1189 (D.C. Cir.

SUPTRSED Gone vacacosexectines 15, 29

Durfee v. Duke, 875 US. 106 (1968) Ip, 29

Iengine Mfrs. Ass'n v. ICPA, 8% F.3d 1075 (D.C.

Cir. 1996)

Kingine Mfrs. Assn v. Huston, 190 I’. Supp.2d 922

ee eR NOPE sin cgisa spa cau adussnsdnenssreasnehssiaakexesanss 1s

lenpine Mfrs. Ass'n v. South Coast Air Quality

Management Dist., 541 U.S. 246 (2004)..... a & 13

lriends of the Atelen-Susquehanna Trail, tne. t

Surface Transp. bd., 252 3d 246 (Sd On

2OO1) G;

George Kabeller, Inc. v. Busey, 999 V.2d 141%

(lith Cir. 1993) 24

Graham v,. Collins, 506 U.S. 461 (1993) 5 |

Her Majesty the Queen in Right vo. PA, 912 F.2d

1525 (D.C. Cir. 1990) 20

Hliller v. Oklahoma ex rel. Used Motor Vehicle &

Parts Comm'n, 327 F.3d 1247 OQOth Cir. 2003). 31

Houston Corp. v U.S., 219 F.2d 841 (9th Cu

QOD) ee

HRI, Inc. v. HPA, 198 F.8d 1224 (0th Cir. 2000)... 26

ICC v. Bhd of Locomotive Eng rs, 482 U.S. 270

(1987) ere , 24, 2B

ldaho i. (loeul d'Al Le [Tribe Oo] ldaho. pZi UJ '

261 (1997) »4

In re Bluewater Network, 234 .3d 13605 ().C. Ci

2000) 4

In re Intl Union, 231 F.3d 51 (D.C. Cir. 2000) 4

Indep. Cmty. Bankers of Am. v. Bd. of Gous., fed

Reserve Sys., 195 I.8d 28 (D.C. Cir. 1999) S |

INS v. Cardoza-fon: eca, 480 UI.S. 421 (1987) 19

Investment Co. Inst. v. Bd. of Governors, fred 1

Reserve Sys., 551] i Yd 1270

(23.05, fir. 1e¢s) 9-10, 18, 2]

Jewell Ridge Coal Corp. v. Local No. 6167, United

Mine Worker: Of America, 329 U.d. 161 (19453) Ee

Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995) AG

Louisiana Iknotl. Action Network vo. Brown $7

Y.3da 1379 (D.C. Cir. 1996) vat 17-18

Maine v. Thomas, %$74 ¥.2d &83 (1st Cir. 1989) 2

Massachusetts vo. bh PA, 549 U.S. 497 (2007) 16

McMellton v. United States, 387 F.3d 329 (4th Ci

2004) (en banc) 5 |

Mike Hooks, Inc. v. Pena, 313 .2d 696 (th Cir

1963) ; 14-lo, 29

Montana v. Clark, 749 1°.2d 740

(D.C. Cir. 1984). 4. 25

Montana v. U.S... 440 U.S. 147 (1979) 14

Morrison v. Amway Corp., 323 F.3d 920

(J1ith Cir. 2008) 3

Napver v. Atlantic Coast Line,

272 US. 605 (1926) 1]

Natl Ass'n of flome Builders v. San Joaquin

Valley Unified Atr Pollution Contre! Disi., 0&8

17309 (9th Cir. May 14, 2009)........ .

Natl Labor Relations Bd. Unton v. LRA, 834

F.2d 191 (D.C. Cir. 1987) 20

Natl Mining Assn vu. Dept of Interior, 70 b.3d

L34D €2047, (8. EBD) os. cscs 10-11, 15, 19-22, 30

Natl Treas. kimployees Union v. ULS., 101 T.38d

1425 (D.C. Cir. 1996) 1 /

Newdow v. Lefevre, 598 F.3d 688 (98th Cir. 2010) $()

NRDC v. Johnson, 461 I°.8d 164 (2d Cir. 2006)...... 23

Qhio v. HPA, 8388 F.2d 1325 ().C. Cir. 1988) 20-26

Oliato Chapter, Navajo Tribe ov. Train, 515 F.2d

654 (D.C. Cir. 1975) 10-11, 146-16, 19-24, 30

Pan American Grain Mfg. Co., Inc. v. HPA, G5

hi3d 101 (st Cir. 1996) 26

People of State of Cal. v. FCC, 905 F.2d 1217 (Sth

Uir. 1990) AG

Vill

Pub. Citizen Health Research Group v. Comm,

140 If.2d 21 (D.C. Cir. 1984) 2Yy

Pub. Utility Comm ’r v. Bonneville Power Admin

767 F.2d 622 (9th Cir. 1985) 24

Publier Citizen Inc. oo Mineta, 348 F.3d 1159 (9th

tar. SUG) Aa ee 26

Red Lion Broad. Co. v. CC, 3895 US. 367 (1969) .. 27

Reed Iinterprises v. Corcoran, 354 F.2d 519 (DO

. ar: 3350)... = Ee ; ' 24

Rtyan v. Johnson, 115 F.8d 198 (3rd Cir. 1997) a1

S. Cent. Bell Tel. Co. vo. Alabama, 526 U.S. 160

(1999) : AL

Salmi vo. Sec’y of Health & Human Servs., 774

2d 685 (6th Cir. 1985)

Schlesinger v. Councilman,

420 U.S. 738 (1975) 20-21

Sterra Club v. Georgia Power Co., 443 I. 3d 1346

(lith Cir. 2006)

Sierra Club v. Thomas, 828 F.2d 788 (D.C. Ch

a) ae : : 24

Southwestern Bell Tel. Co. v. City of El Paso, 243

3d 936 (th Cir. 2001) 3]

Taylor v. Sturvell, 128 S.Ct. 2161 (2008) ...... 2?

Toua tlong Chany v. Minnesota, 521 .8d 828

(Sth Car. 2008) 3

Lup Valley Recovery Ctr. vo. Watt, 703 F.2d 796

(4th Cir. 1983) : 23

(/nderiwwriters Nat. Assur. Co. v0. North Carolina

Life and Ace. & Health Ins. Guaranty Ass'n

455 U.S. 691 (1982) . (ens 2Y

Union Ihlec. Co. vo. HPA, 515 F.2d 206 (8th Ci

i? eae ta. De 23

Vermont oo Thoma SHO ft 2d 99 (2d Gir. 19838)

Vermont Yankhe ¢ IN ia Le Li Pou er ( OTp. | NERD

3b US. O19 (1978)

Wisconsin Klec. Power Co. vo Cost 115 F.2d B23

(7th Cir. 1983)

statutes

» CO. 6552(e) e- IO | é

» Ud... 800% ¥()-2 |

| (1. o1204(1)

28 U.S.C. §1601(a) 1-2. do, 14-16, 24, 29, bd

30 ULS.C. $1276(a)(1) G

42 U.S.C. §800aa-S2 i)

42 U.S.C. §300)-7(a)-(b) LO

12 ULS.C. 8491 8(a) 1()

AP UWIS.C 869 /60a)C1) ot)

AZ U.Db.C. $7410 |

12 ULS.C. §7410(a)( 2) O) , 4

12 U.d.C. §7 00%

YPRURCE “y OUCH)

(i? t.3.4 f945(C)

12 U.S.C. §7548(e) "ae »- 29

12 U.b.C. 67543(e)C1) |

2 U ( L548 (e 2A) af

1 | ( 1543(e)(2)(B) i

42 U.S.C. &7601(a)(2)(A)

12 U.S.C. §7604(a)(2) 15, 29

12 US.C. &7607(b) 2, &, 316-17, 19-21, 24

12 U.S.C. §7607(b)Q1) .. | f 9,14, 16, 20, 23, 29

\dministrative Procedure Act. PUB. lL. NO. 79

104. GO stat. 237 (1946)

PUB. L. NO. 90-148, $208, &1 Stat. 485, 501 (1967)

174 | ©. 91-604 | ‘2(a) } Stat. 1676 10%

(19 /Q) )

bs] S NO AA ry- 25 | C) | tat 4 (194 7) ka

Pu. | QO. 95-9 8 S05(C)C1)-C3), YO] Lat. 685, 4 /f

(1977) ; ’

PUB. L. NO. 101-549, §222(b), 104 Stat. 2399, 2502

(1990)

PUB. lL. NO. 108-199, §42 118 Stat. 3, 418-19

(2004) t. co OO, 2d. 20"

PuB. I. NO. 108-199 i25(e), LlS otat ) 1 | e

(2004) 5. Bi

Legislative History

Administrative Procedure Act: Leveislative Histor

S boc. NO. 79-24% (1946) “

1358. YIist Cong 20 > ; soca) C19 ft) C4

db. REP. 91-1196 (1970)

HR. REP. 94-1175 1976) 1), 16, 2]

mo. REP. 95-294 (1977) lO, 16, 2)

Rules, Regulations and Order:

CT. RULE 32.3

BUN RE BEF vison saniscccagancscndasicciervsccosandous 12

Pe ae Be Oe cds asuscvusvcueduaneulssisecnesin, Reb

10 C.ELR. §1074.12(b).. 12

bY Fed. Reg. 21,598 (1987)... Ry

58 Fed. Reg. 17,948 (1998).............cccccsccocccescscccesceeee 2G

59 Fed. Rep. 36,969 (1994) .0.....cc ccc cccc ccc eccu eee 3349

60 ed. Reg. 28,333 (1995) »G

66 Fed. Reg. 57,223 (2001)............ 33

66 Ted. Reg. 65,3876 (2001)........... 6G

72 Fed. Reg. 28,098 (2007) .. 6, 25, 2&

73 Fed. Reg. 59,034 (2008)....... , 6, 25

75 Fed. Reg. 28,509 (2010).... 33

25 Tex. Reg. 4059 (2000)....... a:

25 ‘Vex. Reg. 4080 (2000) 13

26 Tex. Reg. 6935 (200]).......... 13

Other Authorities

L1A CHARLES ALAN WRIGHT, ARTITUR R. MILLER &

MARY KAY KANE, WRIGHT AND MILLER. Ficb.

PRAC. & PROC. Civ.2d §2944 (1995 & Supp

9351 (D.C. Cir.), Bricf for the Federal

Appellees, 1995 WL, 17204299 (Aug. 01,

Natl Mining Ass'n v. Dep't of Interior, No. 94

9351 (D.C. Cir), Brief of Appellants Interstate

Mining Compact Commission, 1995 WL,

19G5)

17204298 (Jul. O88, 1995)........... | |

Natl Mining Ass'n v. Dep't of Interior, No. 94

9391 (D.C. Cir.), Brnef of AppeHants National

Mining Association, et al., 1995 WIL, 17204297

(ol. ZS, LOOB)....c.cekccces | . 1]

Natl Mining Ass'n v. Dept of Intervor, No. 94

ogo) (D.C. Cir), Brief of Appellees National

Wildhie Federation, ef al., 1995 WL 17204300

(Aug. 28, 1995) , scaraeek 1]

Natl Mining Ass'n v. Dept of Intertor, No. 94

9351 (D.C. Cir.), Reply Bricf of Appellant:

National Mining Association, ef al, 1995 WI,

capa ee SISO, 28S ED) oo .ckccceasasiccces. | ]

Natl Mining Ass'n v. Dept of Interior, No. 94

5351 (D.C. Cir.), Reply Brief of Appellants

lnterstate Mining Compact Commission, 1995

Wi. 17204305 (Sep. 11, 1995) oer wee re 5

Natl Mining Assn v. Dept of Interior, No. 94

S51 (D.C. Cir), Supplemental Brief for the

loderal Appellee: 1995 WI 17204308 (Oct

23, IYO) 1 |

Natl Mining Ass'n v. Dept of Interior, No. 94

9401 (DC. Cir.), Supplemental Bnet of

Appellants National Mining Association, et al.,

1995 Wh 1720480) (Oct. 23, 1995) 1]

Natl Mining: Ass'n v. Dep't of Intertor, No. 94

9301 (UC. Cir.), Supplemental Briet of

Appellant lnterstate Mining Compact

Commission, 1995 Wh 17204302 (Oct. 23,

1999) 1 |

PETITION FOR WRITE OF CERTIORARI

The American Road &€ ‘Transportation

Builder: Association CART BA”) respectfully

petitions this Court to issue a writ of certiorart to

review the judgment of the U.S. Court of Appeals for

the Distmet of Columbia Circuit that §807(b)(1) of the

federal Clean Air Act ((CAA”), 42 U.S.C. §7607(b)Q),

and the All Wnts Act, 28 U.S.C. §1651(a), do not

provide jurisdiction for ARTBA’s petition for review

of qither the preemption rules promulgated by the

Mnvironmental Protection Agency (lPA”) or HPA’s

demal of AR'TBA’s administrative petition to amend

QO} repeal Prov isions of those GPA preemption rules.

OPINIONS BELOW

The court of appeals’ decision is reported at

588% I.3d 1109 and reprinted in’ the Appendix

CApp.”) at la. ARTBA’s petition for review in the

court of appeals sought review of two final IEPA

actions announced in the Kederal Register on October

& 2008, 73 Fed. Reg. 59,034, 59,130 (2008), and

reprinted in pertinent part -in the Appendix at &&a

(final rule) and 22a (petition denial).

JURISDICTION

The court of appeals issued its decision on

December J1, 2009, and denied timely petitions for

reconsideration and rehearimmye en banc on March 5,

YZOIO (orders reprinted at App. 16a and_= 17a,

respectively). Under ARTBA’s view of the law, the

court of appeals had jurisdiction under 42 U.S.C

$7607(b)(1) and 28 U.S.C. §1651(a). This Court has

1.S.C. §1254().

AUTHORITIES INVOLVED

Phi Appendix quotes Administrative

Procedure Act §4(e), 5 U.S.C. §5538(e), the All Writ:

yur) diction under 28 |

Act, 28 U.S.C. §1651(a), and CAA §307(b), 42 U.S.C

§$7607(b), as well as CAA §110(a)(2)(E)Q) and §209,

A2 U.S.C. §§87410(a)(2)(E)Q0), 75438, PUB. L. No. 108-

199, §428, 118 Stat. 3, 418-19 (2004) (hereinafter, the

“Bond Amendment’)

, and relevant provisions from

IePA’s implementing rules

The authorities fall into four primary areas:

|. Administrative Rulemaking Petitions. In

1946, Congress authorized the public to petition

agencies to amend or repeal a rule, 5 U.S.C. §553(e),

as part of the Administrative Procedure Act, PUB. L.

No. 79-404, 60 Stat. 237 (1946) (“APA”). As

explained infra, judicial review of the denial of such

petitions (as distinct from the oryinal rule) can

“reopen” the time for challenging ayency rules where

the statute of limitations has run on direct

challenges to the underlying rule.

2. CAA Judicial Review. In 1970, Congress

applied the precursor of current §3807(b) to judicial

review of a subset of EPA action, PUB. L. No. 91-604,

§12(a), 84 Stat. 1676, 1707 (1970), which the 1977

amendments expanded to apply to most final EPA

action. PUB. L. NO. 95-95, §3805(c)(1)-(3), 91 Stat. 685,

776° (1977). CAA §307(b)’s central provisions are

(a) direct review in the courts of appeal; (b) review of

nationally applcable actions exclusively in the D.C.

Circuit, with review of regionally applicable actions

in the court of appeals for the relevant circuit; and

(ce) the jurisdictional requirement to petition for

review in the relevant court of appeals within 60

days of IEPA’s publishing notice of its action in the

lederal Register or within 60 days of after-arising

grounds. 42 U.S.C. §7607(b)Q). In addition,

8307(b)(2) prohibits courts from reviewing in an

enforcement proceeding any KPA action for which

review could have been had under §3807(b)(1). 42

U.S.C. §7607(b)(2).!

3. CAA Preemption. In 1967, Congress first

introduced CAA preemption for onroad vehicular

emission standards, with an exception for California

PUB. L. No. 90-148, §208, &1 Stat. 485, 501 (1967);

Kingine Mfrs. Ass'n v. South Coast Air Quality

Management Dist., 541 U.S. 246 (2004) (CEMA 1

SCAQMD”). The 1970, 1977, and 1990 amendments

modified CAA’s onroad preemption inter alia to allow

other states to adopt California’s vehicular-emiussion

program and to prohibit state regulation of federally

regulated components during the federally regulated

useful life. 42 U.S.C. §§7507, 7543(¢). In 1990

Congress introduced parallel provisions for CAA

preemption of monroad vehicular emission standards

and other requirements. PUR. L. No. 101-549,

§222(b), 104 Stat. 2399, 2502 (1990). Significantiy,

§209(e)(1) preempts all states, including California,

from adopting or enforcing emission-related

standards or other requirements for new farm and

construction equipment under 175 horsepower and

new locomotives. 42 U.S.C. §75438(e)(1). In 2004,

Congress enacted the Bond Amendment, which

(among other things) reinforces the breadth of the

“standards and other requirements” language. PUB

lL. No. 108-199, §428(e), 118 Stat. at 418-19.

Procedural thresholds aside, this litigation concerns

the scope of §209(e)’s nonroad preemption.

Before 1977, §&307(b)C1) provide d 30 days. PUB. L. No. 9]

604, §12(a), $4 Stat. at 1707. For consistency, AR'TBA refers to

§307(b)1)'s window as having 60 days throughout the petition

A. CAA Implementation Plans. In 1970,

Congress introduced state implementation plans

(“SIPs”) for attamning the national ambient air

quahty standards (“NAAQS”), where states mode}

the emission reductions needed to attain the NAAQS

and then develop SIP control measures to provide

those emission reductions. See 42 U.S.C. §7410. As

relevant here, the principal requirement for a SIP

measure is that the state have authority to enforce

it. 44 USC. §7410(a)(2)(14)0). Obviously, state rules

that §209(c) preempts cannot meet this criterion for

IPA approval of a SIP measure.

STATEMENT OF THE CASE

As the success of onroad vehicular standards

shows, regulators can most effimently and equitably

impose vehicular controls at the manufacturing

stage, with costs spread across the entire market and

incurred by purchasers incrementally as fleets

expand or turn over. Certainly, new-vehicle

preemption does not end the instant vehicles leave

the showroom, subjecting owners to regulation by all

50 states and countless pohtical subdivisions

Against that) backdrop, this litigation raises four

substantive issues on §209(e)'s preemptive scope:

(1) Whether §Z0U(C) preempts fleetwide

averaging, carly retirement, and purchase-sale

requirements (collectively, “Fleet Rules’)?

(2) Whether §209(e) preempts restrictions on the

use, hours of operation, and fuel of both new

and non-new nonroad vehicles (collectively,

“In-Use Controls”)?

(<3) Whether §209(e)(1)'’s uniform treatment of

lic: W locomotives VIS-A Vis bhow construction

and farm equipment under 175 horsepower

allows KPA’s preferential treatment — of

locomotives vis-a-vis construction and farm

equipment under 175 horsepower?

(4) Whether a “market participant” exception

limits §209(e)s preemption and, if so, the

scope of that exception?

At this juncture, the primary questions presented

are jurisdictional. Nonetheless, the underlying

substantive issues both relate to jursdiction and

help understand the procedural sctting.

On July 12, 2002, ARTBA administratively

petitioned EPA to amend or repeal [HPA’s nonroad

preemption rules on the first three issues (1.e., #4

through #5 above). See Court of Appeals Joint

Appendix (CAJA”) at &2-94. In 2004, EPA and

ARTBA exchanged correspondence on the impact of

the Bond Amendment and this Court’s ruling in

MMA v. SCAQMD on ARTBA’s petition.

On March 29, 2006, ARTBA petitioned the

D.C. Circuit for review under §807(b)(1) and the All

Writs Act against IPA’s inaction as unreasonable

delay and constructive demal. ART’BA v. HPA, No

06-1112 (D.C. Cir. filed Mar. 29, 2006). AR’PBA filed

that petition for review within sixty days of Vexas’

renewed consideration of nonroad rules on February

6, 2006. Declaration of Jed Anderson, ARTBA v.

MPA, No. 06-1112 (D.C. Cir.), at 99. During that

action, ARTBA’s dispute over Calfornia’s nonroad

repime mpened, and (again within 60 days) AR'TBA

advised the D.C. Circuit of that development.

ARTBA v. HPA, Declaration of Lawrence J. Joseph,

No. 06-1112 (D.C. Cir.), at 96; Motion for Judicial

Notice, ART'BA v. PA, No, 06-1112 (D.C. Cir.).?

Qn May 1%, 2007, KPA issued a notice of

proposed rulemaking (@NPRM®) that included

AR'TBA’s petition and also proposed to re-promulgate

the entirety of I¢PA’s preemption rules. 72 Fed. Reg.

28,098, 28,209-10 (2007) (App. 1&a-21a). One month

before the date of the oral argument, HPA moved to

dismiss AR'TBA’s prior action as moot because “KPA

has now commenced a rulemaking on the issues

ARTBA raised.” App. 109a. The D.C. Circuit granted

that motion, App. 115a, over AR'TBA’s objection that

the NPRM did nothing. App 1 13a.

In its comments on EPA’s NPRM, ARTBA

covered not only its three petition issues but also an

additional issue (issue #4 above) that arose after

ARTBA filed its administrative petition. CAJA at

160, 170-738.. On October &, Z008%, EPA promulgated

its final rule (which incorporated KPA’s response to

AR'TBA’s petition) to deny rehef on all four issues. 73

ked. Reg. at 59,130 (App. Yla); CAJA at 287-89 (App.

1038a-106a). ARTBA filed this htigation within 60

days of ls PA’s notice in the kederal Register.

or eight years then, AR'PRBA has attempted to

resolve EPA’s inconsistencies. After five years of

ARTBA filed copies of these documents in the D.C. Circuit

in this action and will seck leave to lodge copies here. See S. C1

KULE $2.38

Because ARTBA’s NPRM comments raised an issue

beyond ARTIA’s administrative petition, the Court would need

to resolve ARTBA’s rulemaking-based arguments for reopener

(Sections I] and Jl, infra) even af the Court accepts ARTBA’s

petition-reopener argument (Sections | and IV, infra)

Inaction and within GO days” of after-arisiny

information, ARTBA petitioned the D.C. Circuit for

rewiew, but that court held that KVA’s NVRM mooted

ARTBA’s challenge. In a reversal that “borders on

the Kafkaesque,” Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 557 (1978), the D.C.

Circuit) now Says MPA’s NPRM did nothing, App.

Iga, and ARTBA must “petition” — the panel cannot

say whether that means petition for review in court

or petition PA administratively — within 60 days of

after-arising information. App. Ya-lla

Factual Background

A construction companys value and ability to

do its work depend on its employees and equipment.

15 yond the obvious and essential roles of employee:

and equipment, Companies use existing equipment as

assets against which not only to borrow to purchase

new equipment but also to meet their obligations to

hond their work. State measures allowed by EPA but

prohibited under AR'TBA’s interpretation of §209(e)

threaten both the employees and the cquipment of

ARTBA’s members. Moreover, because states must

adopt new SIP control measures for each new SIP

deadhine and whenever SPA lowers a NAAQS, even

past fights where ARTBA prevailed provide only

temporary rehet Kaither the states themselves re

raise these measures or environmental plaintiff:

seek to compel the states to adopt them at the next

SIP deadhne. Only definitive answers on §209(e)’s

scope will end the serial regulatory uncertainty.

In Texas, ARTBA | ha: fought morning

construction bans, which seek to shift Emissions lates

in the day so they “bake” less in the sun and blow

away at night. These measures would = deny

employees the ability to spend evenine: much less

afternoons with their families, changing a way of

life and driving invaluable people from the industry.

In Cahlfornia (and states that adopt California

standards), ARTBA members face a_ perversely

perfect storm that requires expensive new equipment

and expensive, unsafe, untested, stop-gap retrofits,

While (a) prohibiting use of existing equipment on

projects, (b) depressing existing equipment’s market

value and thus the borrowing capacity to meet new

costs, (c) decreasing the capacity to bond projects and

thus to earn income to bear new costs, and

(d) requiring layoffs that further reduces the capacity

to earn income to bear new costs. Kven without the

worst economy since the Great Depression, this

would be an existential fight for survival

Statutory Background

Although this htization ultimately concerns

the preemptive scope of CAA §209(e) the

jurisdictional question turns on the relation between

APA &§4(c) and CAA §307(b) for purposes of judicial

review of KPA actions. 5 U.S.C. §$558(e); 42 U.S.C

&7607(b). This section summarizes the two sections

and the lhtigation that mterprets them

As indicated, §55%(e) authorizes petitioning

agencies to amend, repeal, or promulgate a rule. 5

U.S.C. §8553(e). Within the APA, “[§553(e)| ts of the

vreatest tmportance because it as designed to afford

every properly interested person statutory authority

to petition for the issuanec, amendment, or repeal of

a rule.” Administrative Procedure Act: Legislative

History, S.DOC. NO. 79-248, at 359 (1946) (emphasi:

added) (hereinafter “APA Leg. Hist.”). “The right of

petition gs written into the Constitution itself,” and

“18553(e)) confirms that right where Congress has

delegated legislative powers to administrative

agencies.” fd. “Even Congress, under the Bill of

Rights, is required to accord the nght of petition to

any citizen,” and “a petitioner [who] states and

supports a valid ground for ... rehef, manifestly fis]

entitled to ... rehef.” Jd. at 21.

The §5538(e) petition process bears particular

importance where direct challenves to an underlying

rule are untimely. Im such cases, the agency’s

response to the petition provides a new final agency

action for which the petitioner can seek judicial

review. See App. 6a-7a; Investment Co. Inst. v. Bd. of

, 651 F.2d 1270, 1280

&1 (1.C. Cir. 1977) CInvestment Co.”). Balttmore Gas

& klec. Co. vu. ICC, 672 F.2d 146, 149-50 (D.C. Cir.

1982) “BGLH”’). ARTBA refers to this as the “petition -

reopener” doctrine to distinguish instances where

Governors, kedtl Reserve Sys

rulemakings reopen review, without a pnor petition.

In several post-APA statutes, Congress has

included Jimitations on review lhke those found in

€307(b), which require filing a petition for revicw in

court within a short period — usually 80 to 90 days

and limit subsequent review to after-arising grounds:

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 af such petition is based solely on

erounds arising after such sixtieth day, then

any petition for review under this subsection

shall be filed within sixty days after such

prounds arise.

4? U.S.C. §7607(b)); see also 30 U.S.C. §1276(a)Q)

(Surface Mining Control & Reclamation Act or

“SMCRA”); 42 U.S.C. §800aa-32 (National Childhood

Vaccine Injury Act); 42 U.S.C. $6976(a)(1) (Resource

Conservation & Kecovery Act); 42 U.S.C. §300)-7(a)

(b) (Safe Drinking Water Act); 42 U.S.C. §&4915(a)

(Noise Control Act)

In Olyato Chapter, Navajo Tribe v. Train, 515

i. 2d 654 (D.C. Cir. 1975) (Navajo Tribe’), the DC

Circuit addressed the interplay between §553(e) and

S307(b)1). There, the Tribe sought to challenge an

KPA rule outside §$307(b)(1)'s window, but based on

after-arising information. The Tribe had filed suit in

district court and, based on that court's determining

it lacked jurisdiction, also filed a belated petition for

revicw in the court of appeals. 515 F.2d at 658-59.

Navajo Tribe held that in order to present such

information to KPA in a manner that the court of

appeals could review — one first must petition IPA

under §558(e). 515 F.2d at 666. In broadening

&307(b)'s scope in the 1977 amendments, Congress

ratuhed the Navajo Tribe approach. H.R. Rep. 94

11/5, 264 (1976); S. KEP. 95-294, 323 (1977). In

addition, Congress rejected dicta from Investment

Co. that would allow avoiding §307(b)’s time bar for

“an undefined lepitimate excuse.” S. Rep. 95-294, at

322. By nevalive mophleation, Congress did not reject

the d/nvestment Co. holding that such petitions arc

required for a party to challenge a rule that it lacked

a ripe claim to challenge within the 60-day window

In Natl Mining Ass'n v. Dep't of Intervor, 70

kisd 1445 (D.C. Cir. 1995) (National Mining’), the

D.C. Circuit addressed SMCRKA’s similar language,

which the court found to prohibit use of the petition

reopener doctrine. 7O Fisd oat V5). Although

National Mining recognized that CAA’s judicial

review resembles SMCRA’s, National Mining, 70

isd at 1350 n.¥%, neither that pane) nor the National

1()

Mining parties even mentioned (much — le

considercd) Navajo Tribe as Circuit precedent.4

Kegulatory Background

In initially promulgating rules to implement

§209%(e), EPA spht non-locomotive nonroad veliele:

from locomotives, and promulgated a narrow

definition of preemption for the former, 59 Fed. Rep

36,969, 36,973 n.& (1994), which HEPA defended in

Engine Mfrs. Assn vo. HPA, &8& F.8d 1075, 1098-94

(D.C. Cir. 1996) CHMA v. KPA”). Two years later,

PA adopted broad preemption for locomotives,

mncluding in-use fleet standards. 63 Ked. Reg. 18,978

(1998). Locomotives’ absence in MMA enabled KPA to

argue that its rules “harmonized” the statute, HMA

Lv. HPA, $8 F.3d at 1087, without addressing the

Clanging discord from longstanding Jocomotive

preemption. /aprer v. Atlantic Coast Line, 272 U.S.

605, 611-13 (1926). Whether by design or chance,

See National Mining, 70 38d at 1447-53; National Mining

No. 94-0801 (DC. Cir), Brief of Appellants Interstate Mining

Compact Commission, 1995 Wh, 17204298 (Jul. 08, 1995); td.,

Brief of Appellants National Mining Association, ef al., 1995

Wi. 17204297 (Jul. 28, 1995); id., Brief for the kederal

Appellees, 1995 WI. 17204299 (Aup. O1, 1995); id., Brief of

Appellee: National Wildlife bode racvion el al., 1995 WI,

17204300 (Aug. 28, 1995); td, Reply Brel of Appellant:

Nathonal Mining Association, et al, 1995 Wh, 17204304 (Sep

11, 1995); id., Reply Brief of Appellants Interstate Mining

Compact Commission, 1995 WL 17204805 (Sep. 11, 1995); td,

Pupplemental Brief of Appellants National Mining Association

et al, 1995 WIL 17204801 (Oct. 23, 1995): td., Supplemental

Bnicf of Appellant Interstate Mining Compact Commission

19905 Wh. 17204802 (Oct. 23, 1995); id., Supplemental Brief tor

the Federal Appellees, 1995 WI, 172043805 (Oct. 25, 1995)

MPAs 1994 rulemaking resolved only part of §200(e)

(non-locomotives) without considering the

remainder (locomotives) that renders the rulemaking

untenabl

ie) non-locomotive nonroad vehicle and

Chpiwuie MPA determined that new vehicle and

Sng ines lose preemption when they leave thie

showroom floor, 40 C.FR. §85.1602 (1995); accord 40

CukR. =§1074.5 (current version), but otherwise

merely restated tl statute. 40 C.FLR. §85.160%

(1995); accord 40 C.F.R. §1074.10 (current version)

WPA also opined that “states are not precluded unde:

ection Z09 from regulating the use and operation of

nonroad CNPImMCs, uch a regulation on hours of

usage, daily mass emission limits, or sulfur limits on

fuels.” 40 C.FLR. Pt. &9, subpart. A, App. A. Afte)

uccessiully defending that narrow interpretation

MPA adopted locomotive rules that expressly

preempt “tleet average standard 10 CLF_LR

§85.1603(¢c)(2) (1995); accord 40 C.F.R. §1074.) 2(b)

(current version), backdate locomotive “newness to

1972, and extend it perpetually, 40 CPLR. §885.1602

92.2 (1995) (newness-based preemption extends 1.43

times an engine's useful hfe and perpetually via

remanutlacturiny) accord 40 C.F UR S$$1074.5

1033.901 (same under current version)

()f the four issues that ARTTBA seeks to raise

IMA % KPA addressed only one (In-Use Controls.)

LMA | IPA, &8% FiSbd at 1093-94. notwithstanding

that the petitioner Jacked standing on that issue

ARTBA’s three other issues arose atter AMA v. KPA

specifically, EPA’s disparate treatment, vis-a-vis

locomotives, Came in JY98%, not 1994, and ARTBA

first exposure to preempted state rules purportedly

allowed by EVA S2VO9(e) rules came two year late

In Texas. 25 Tex. Reg. 4059, 4078 (2000); 25 Tex

Rep. 4080, 4101 (2000) ARTBA | successfully

challenyed those Texas rules in district court, /éngine

Mfrs. Ass'n v. Hluston, 190 I.Supp.2d 922 (W.D. Tex.

2001), and ‘Texas repealed them while that ruling

was on appeal, 26 ‘Tex. Reg. 6935, 6986-37 (2001).

In 2002, after the Fifth Cireuit vacated ffluston

as moot, ARTBA petitioned KPA under §553(e) to

amend its preemption rules. CAJA at 82-94. Since

2004, ARTBA argued that the Bond Amendment and

MMA v. SCAQMD support ARTBA’s preemption

views. ‘The market-participant issue surfaced in

2005, after remand of this Court's decision in EMA v.

SCAQMD. In response to EPA’s NPRM, ARTBA

raised all of these issues, CAJA 160, 170-73, and

MPA’s final rule and petition response demed all

rehef. App. Yla, 103a-106a.

REASONS TO GRANT THE WRIT

The writ of cerliorart should be granted both

to resolve splits among the courts of appeals and to

exercise this Court’s supervisory authority in

matters of importance both to CAA’s judicial review

and to the lower courts’ exercise of their authority:

lL. In 1975, the D.C. Circiunt held that CAA

review based on after-arising information required

the petitioner first to petition IEPA administratively

under §558(e) and, only after failing there, to file a

timely petition for review under §807(b)(1). Navajo

Jribe, 515 F.2d at 666. Because so many circuits

adopted the D.C. Cirewits Navajo Tribe holding on

CAA petition-demal jurisdiction for after-arising

grounds under §3807(b), the D.C. Ciremit’s about face

In this case splits with half of the other circuits, as

well as controling D.C. Circuit precedent and

lepislative history. See Section 1.C, infra. The Eighth

(urewit supports petition-reopener jurisdiction even

more strongly than Navajo Tribe. Id. Further,

although ARTBA cares httle about SMCRA beyond

its indirect impact here, this Court’s resolution of

(his case also would resolve a split between the

Fourth and D.C. Circuits on the availability of

petivion-demal review under SMCRA. Jd. Finally,

because the All Writs Act protects the D.C. Circuit's

prospecttve jurisdiction over nationally apphecable

(CAA rules, this case conflicts with authority from the

ID... Ninth, and Eleventh Circuits under the All

Writs Act. See Section 1.D, infra.

Z Repardless of whether the court of appeals

had jurisdiction over ARTBA’s petition-denial claim,

&307(b)(1) plainly provides jurisdiction to review the

Nnal preemption rules that MPA adopted in its 2008

rulemaking. JCC vo. Bhd. of Locomotive Hng’rs, 482

U.S. 270, 27% (1987) C BLE”), Montana v. Clark, 749

k2d 740, 744 (DC. Cir. 1984). The panel decision

splits with several other circuits, which allow review

When a new agency action reaffirms the old one and

deny review only where the putative plaintiff’ seeks

judicial review outside the proposed regulatory text

or action. See Section Il, infra.

3. ven assuming arguendo that KVA’s 2008

rulemaking would not reopen the entirety of HPA’s

preemption rules, issue preclusion prevents IEPA

from arguing that here because IVA successfully

argucd the opposite in ARTBA’s prnor unreasonable-

delay litigation. Because collateral estoppel apples

to the federal government, Montana v. U.S., 440 U.S.

147, 154-55 (1979), that prior holding binds HPA

now, even if it was erroneous then. Mike Hooks, Inc.

v. Pena, 313 F.2d 696, 699 (Sth Cir. 1963) (whether

s| cannot

night or wrong, [jurisdictional] decision

ordinarily be attacked collaterally’); Dozter vu. Ford

Motor Co., 7O2 F.2d 1189, 1191 (D.C. Cir. 19838);

Durfee v. Duke, 3875 U.S. 106, 111 (1963). Of course,

if ARTBA ineorrectly filed its prior unreasonable-

delay suit in the court of appeals rather than the

district court as tPA then argued KPA might

escape issue preclusion if the court of appeals lacked

yurisdiction over AR'TBA’s unreasonable-delay suit

Both to save judicial and public resources from

dupheative litigation and to resolve a circuit split. in

authority, this Court should resolve whether to file

unreasonable-delay suits in the courts of appeals

under the All Writs Act or in district. courts under

Clean Air Act §304(a)(2), 42 U.S.C. §7604(a)(2).

4 secause Navajo Tribe would provide the

court of appeals jurisdiction for ARTBA’s petition

denial claam, and National Mining would deny that

jurisdiction, this case squarely presents the question

whether an carher three-judge panel decision in an

Intra-circuit’ split binds subsequent three-judge

panels. The courts of appeal are spht on this

question, which is central to pubhe confidence in

stare decisis and judicial fairness. The importance of

this question requires the Court) to exercise its

supervisory authority over the lower courts

H hinally, given the 1).C. Cireuit’s exclusive

review of nationally apphcable CAA rules and it:

abdication of that role here, it falls to this Court to

enforce &407(b)O1)s entrusting review under this far-

reaching statute to that “single court intimately

famuhar with administrative procedures” to “imsur|e]

that [CAA’s] substantive provisions ... would be

uniformly apphed” nationwide. Adamo Wrecking Co.

v. ULS., 454 ULS. 275, 283-84 (1978). While perhaps

not technically relevant to the legal issues presented

here, these jurisdictional issue are extraordinarily

important because CAA touches almost every aspect

of life, including not only pubhe health but also the

economy, energy, consumer products, land use, and

apparently anthropogenic global warming.® Only this

Court can reopen the door to review arbitrary or

unlawful agency action in countless contexts under

CAA, SMCRA, and other similar statutes.

I. §307(b) AND ALL WRITS ACT PROVIDE

REVIEW OF PETITION-DENIAL CLAIMS

Under Navajo Tribe and the legislative history

to CAA’s 1977 amendments, the petition-reopener

Process plainly applies lo review under §307(b)1).

Navajo Tribe, 515 ¥.2d at 666-67; H.R. REP. 94-1175,

at 264; S. Rep. 95-294, at 322-23. Moreover, under

Navajo Tribe and §3807(b)(2), that) review is not

limited here to post-1994 issues. First, Navajo Tribe

held that §S507(b)Q1)’s “solely” language did not limit

the scope of review, once the petitioner had met the

jurisdictional criteria for bemp in that court. Navajo

Tribe, 515 F.2d at 667. Second, §307(b)(2)’s plain

language precludes” revisiting issues” previously

reviewable under &807(b)(Q1) only in “civil or criminal

proceedings for enforcement.” 42 U.S.C. §7607(b)(2).

Because this is no such proceeding, §307(b) does not

preclude ARYVBA’s rehance on grounds available in

Ho the court of appeals is correct that it lacked jurisdiction

because ARTBA failed to file a petition within 60 days of

information’s arising, then the court of appeals and this Court

lacked jurisdiction to review EPA’s denial of the petition in

Massachusetts o. HPA, 549 U.S. 497, 510-11 (2007), which wa:

filed October 20, 1999, on 199% temperatures and a 1995 report

1994. Nor should ARTBA’s review be limited: neither

ARTBA nor anyone else had a ripe claim in 1994 for

the issues that AR'TBA seeks to raise now.

A. §307(b) Cannot Bar Previously

Unripe Claims

As EPA’s 1994 rulemaking explained, neither

Calfornia nor anyone else contemplated nonroad

retrofit controls in 1994. 59 Fed. Reg. at 36,974

CEPA recognizes that CARB does not envision a

retrofit requirement’). With no threatened = or

imminent retrofit rules, no constitutionally ripe

claim existed over the pertinent parts of [PA’s 1994

rulemaking,® and §307(b)(1)’s 60-day limit “can run

only against challenges ripe for review.” Loutstana

Fnotl. Action Network v. Browner, 87 F.3d 1379,

1385 (D.C. Cir. 1996) CLEAN’) (quoting BGE, 672

I’.2d at 149). Because ARTBA Jacked ripe claims

when HPA promulgated its §709(e) rules, ARTBA

unqucstionably can challenge those rules outside

&S507(b)O)s 60-day window. The partics and panel

dispute only the process and timing for doing so.

Although neither the panel nor respondents

dispute that ARTBA lacked ripe claims in 1994, the

panel misrcads LEAN to require filing a petition

whether an administrative petition with KPA or a

petition for review with the court of appeals — within

GO days of the post-1994 ripening of ARTBA’s claim.

6 Constitutional ripeness and standing overlap, Allen =v.

Wright, 46% US 737, 750 (1984), and “share[] the

constitutional requirement ... that an injury in fact be certainly

impending.” Natl Treas. kmployees Union vo. U.S., 101 F.3d

1423, 1427-2& (D.C. Cir. 1996)

App. Ya. Although it would be dicta in any event

because the LHAN. petitioners lacked standing,

LEAN merely summarizes §307(b)(1)'s requiring that

“such petition is filed within sixty days of such new

grounds arising.” LEAN, &7 F.3d at 1485 (emphasis

added). As the next section explains, binding

precedent and Jeyvislative history require presenting

issues to KPA by administrative petition, before

filing a petition for review in court. In the remainder

of this section, ARTBA shows that information’s

arising or Claims’ ripening docs not tngger an

obhgation to act within 60 days.

It is black-letter law that the petition-reopener

doctrine requires parties with previously unripe and

presently untimely claims to cure the timeliness

defect by filing an administrative petition with the

agency before petitioning for review in court: if

“BGA, at some future date, should have a ripe case

it can file a complaint with the Commission and,

if the complaint is rejected, seek our review within

GO days of that Commission order.” BGE, 672 F.2d at

149-50; Investment Co., 551 I.2d at 1281. except for

constructive denial or unreasonable delay, Sierra

Club v. Thomas, 828 F.2d 783, 793-96 (D.C. Cir.

19%7), such parties cannot sue until the agency acts

on the petition. Consolidation Coal Co. v. Donovan,

656 F.2d 910, 915 (8d Cir. 1981). The petition-

reopen i doctrine allows a party to revive an

otherwise time-barred claim.

The panel’s suggestion — suing directly on the

ripening of a claim would eviscerate limits lke

&307(b). Under that view, someone could challenge a

longstanding HPA rule at any time, which means

that membership groups could do so at any time. Tor

example, environmental groups could litigate based

on a members either reaching an eighteenth

birthday and thus having the ability to sue or

moving to a threatened arca and thus sulfermny

injury from pollution in that areca. Almost as casily,

industry groups could find a new entrant into a

repulated field who thereby has newly ripe claims

avainst longstanding rules. Whatever the range of its

plausible interpretations, §3807(b) clearly did not

lower the barrier to judicial review.

The panels other suggestion petitioning

MV?A within 60 days of ripening or new information,

App. Ya-lla’— also contradicts settled law. Navajo

Tribe held the Tribe could petition KPA years after

its “new information” arose, with judicial review if

the ‘Tribe timely petitioned the court for review after

KPA acted on the administrative petition. 515 F.2d

at 66. Even National Mining found that the

association’s claim that federal over-filing conflicts

with state authority in SMCKRA primacy states was

timely and reviewed that claim. National Mining, 70

MoSd at 1852. Although that association petitioned

the Department of Interior tn 1986, over-filing

conflict already was factually extant in 1984, 52 Fed.

Reg. 21,59%, 21,601 (1987), well outside the GO-day

; This panel resurrects a standard Conpyress rejected im

1970, when it amended 5. 4458 in conference to require suing

on after-arising grounds (e.g., petition denials), not “whenever

significant new information has become available.” Navajo

Tribe, 515 F.2d at 660 (quoting S. 435%, Vist Cong., 2d Se

85084) (1970)). “Kew principles of statutory construction are

more compelling than the proposition that Congress does not

intend sub silentio to enact statutory language that at) he

earher discarded in favor of other language.” INS v. Cardoza

honseca, 480 US. 421, 1442-43 (1987)

window. Of course, state-federal conflict is legally

Implicit in federal over-filing and was thus impheit

in the 1979 rulemaking that authorized over-filing.

Under the circumstances, the pane! below apphed

National Mining even more strictly against petition-

denial claims than National Mining itself.

Here, ARTBA petitioned KPA after issues

arose (disparate locomotive rules, market-participant

rules, lect Rules) or ripened (In-Use Controls), and

ARTBA sued within 60 days of IX PA’s final action on

ARTBA’s petition. That is all §607(b)Q1) requires.

B. = §807(b) Requires Pre-Suit Petitions

The APA and CAA both not only allow but also

require” petitioning EPA before seeking judicial

review of previously unripe, presently untimely

claims. Natl Labor Relations Bd. Union vo. FLRA,

634 F.2d 191, 195-196 (D.C. Cir. 1987) (APA); Her

Mayesty the Queen in Right v. HPA, 912 F.2d 1525,

530-41 (D.C. Cir. 1990) (CAA). Indeed, with regard

to agency rules rendered arbitrary by inconsistent

later developments, the petition-reopener process 1s

the only way to challenge such after-the-fact

arbitrariness. Auer v. Robbins, 519 U.S. 452, 459

(1997). Navajo Vribe further recoymized that the

petition-reopener process comes from a prior statute,

and that “[§|307’s ‘solely language will never by

itself excuse [IEPA] from [its] duty to respond on the

merits to a request for revision.” 515 F.2d at 667. Of

course, “repeals by impheation are disfavored,’ and

this canon of construction apples with particular

force when the asserted repealer would remove a

remedy otherwise available.” Schlesinger v.

Councilman, 420 U.S. 738, 752 (1975); 5 U.S.C. §55%9

(Subsequent statute may not be held to ... modify

[APA review] except to the extent that it does so

expressly”); Dickinson vo. Zurko, 527 US. 150, 154-55

(1999) (clear evidence” required). Congress did not

provide clear evidence of any intent to repeal S5538(e)

To the contrary, CAA’s 1977 amendment:

expressly ratify Navajo Tribe. H.R. REP. 94-1175, at

264. S. Rep. 95-294, at 3823. Moreover, Congres:

expressly reyected only the dictum from Investment

Co. that the petitioner-reopener doctrine allows

reopening rales for “an undefined legitimate excuse,”

not the holding trom /nvestment Co. that both allows

and requires the petition-reopener process for claims

that ripen or arise after the GO-day window. 5. REP.

95-294, at 322: Investment Co., 551 F.2d at 1280-81;

section LC, infra (other circuits support Navajo

Tribe). That selective rejection evidences knowledge

and ratification of the default’ petitioner-reopener

doctrine for non-ripe claims.

In summary without National Mining, EPA

could not credibly deny that §3807(b) allows review of

ARTBA’s petition-denial claim. With repard to

National Mining, AR'TBA submits that National

Mining was wrongly decided. Accepting the National

Mining premise that the petition-reopener doctrine

was well established cannot compel the National

Mining conelusion that “¢ MON YPESS appears to have

devoted particular cflorts” to reyect that doctrine. 70

iogd at 1351. Consistent with the canon avainst

repeals by implication, it as more hkely” that

Congress assumed that the = petition-reopene:

doctrine would continue. It is even more lhkely that

Congress wiewed the SMCRA provisions to mirror

the pre-existing CAA provision addressed in Navajo

Tribe and the contemporancous CAA amendments,

Which neither the Nattonal Mining panel nor parties

discussed. Unhke the D.C. Cireuit in this case or in

National Mining, courts look to contemporancou:

lepislation to determine legislative context and

mitent. See, e.g., Jewell Ridge Coal Corp. v. Local No

G167, United Mine Workers of America, 325 U.S. 161,

180 (1945); Houston Corp. v. U.S., 219 F.2d &41, &44

(9th Cir. 1955).& National Mining does not construe

SMCRA correctly, much less the CAA

Although the National Mining panel thought

that the D.C. Circuit had “never held that) this

Is5538(e)| procedural device, standing alone, was

suffiment to avoid the congressional bar,” Nattonal

Mining, 70 F.3d at 1451, the panel was wrong

[Wle note that the publhe’s right to petition

the Administrator for revision of a [rule] and

the Administrators duty to respond

substantively Lo such requests eCXISt

completely mdependently of Section 807{[.]

Navajo Tribe, 515 F.2d at 667 (citing 5 USC

$5538(e)). Due process forbids saddling ARTBA with

mistakes by the National Mining parties and panel.

Baker v. Gen. Motors Corp., o22 Up, 242, ccl-ao &

n.11 (1998); Taylor v. Sturgell, 128 S.Ct. 2161, 217)

(2008): S. Cent. Bell Tel. Co. v. Alabama, 526 U.S

160, 167-68 (1999). AR'TBA deserves its day 1n court

ARTBA respectfully submits that) Mattonal

Mining was wrongly decided to the extent that it

would deny review of ultra vires CAA rules that a

petitioner lacked ripe claims to challenge when first

romulgated. Insofar as ARTBA brings CAA claims,

Congr enacted SMCKA on August 3, 1977, PUB. 1.. NO

95-67, 91 Stat. 504 G97), and GAA 1977 amendment Toul

days later. PUB. I. No. 95-95, 91 Stat. at 685

the ARTBA panel had to follow Navajo Tribe, the

carher (and more on point) precedent in this intra

(iremit spht. See Section IV, tnfra. ‘This Court, of

course, can uphold cither Navajo Tribe and its extra

circuit progeny or Nattonal Mining. Wowever it

rules, this Court should resolve the circuit spht

e. Panel Deviates from Other Circuits

As Navajo Tribe acknowledged, the faghth

Circuit viewed §3807(b)(1) to require the petition

reopener process, whereas Navajo Priebe imposed

that process on htigants as an exercise of courts

equitable powers. Navajo T'ribe, 515 F.2d at 665-66;

Union Elec. Go. v. HPA, 515 F.2d 206, 220 (8th Cir

1975). Whether required by CAA or imposed by the

courts, most other circuits have also recognized the

petition-reopener process under &307(b)(1). Matne v.

Thomas, 874 F.2d 883, 889-90 (ist Cir. 1989);

Vermont v. Thomas, 850 F.2d GY, 104 (2d Cir. 1988);

Consolidation Coal, G5h6 F.2d at 914-15 (Third

Circuit); Wisconsin Klec. Potwwer Co. v. Costle, 715

F.2d 323, 328-29 (7th Cir. 1983); Sierra Club uv

Georgia Power Co., 4438 F.8d 13846, 1857 OQ ith Cir

2006). accord NRDC v. Johnson, 461 F.3d 164, 178

74 (2d Cir. 2006) (tolerances under the lood Quality

Protection Act). Against these decisions from other

circuits, the panel decision here (App. Ya-lla) is

aberrational. Indeed, the SMCRA precedent on

Which the panel rehed also 1s aberrational. Compare

National Mining, 70 F.3d at 1351 with Tup Valley

Recovery Ctr. v. Watt, 7038 F.2d 796, 800 (4th Cir.

1983) (descmbing petition-reopener doctrine as

SMCRA’s “proper procedure’). This Court should

grant the writ to ensure uniformity of the circuits on

this important issue of yudioial review

1). All Writs Act Allows Keview, ven if

$307(b) Does Not

ven without accepting ARTIBA’s position on

Navajo Tribe, §307(b)Q1), and §807(b)(2), the D.C

]

’

Circuit nonetheless had jurisdiction to review IcPA’

response to ARTRBA’s petition to preserve prospective

jurisdiction over nationally apphcable §209(e) rules

Under the All Writs Act, courts have jurisdiction to

compel agency action unreasonably withheld if that

action, once taken, would be reviewable in that court

In re Bluewater Network, 234 F.3d 1805, 1814-15

(D.C. Cir. 2ZOOO); Srerra Club v. Thomas, 82% F.2d at

793-94; Pub. Utility Commr vo. Bonneville Power

Admin., (67 F.2d 622, 626 (Yth Cir. 1985): George

Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421 (11th

Car. 1993). Without delinitive answer: to ARTBA’

substantive questions, ARTBA will face lhtigation

across the country against IPA and state agences in

courts that lack the D.C. Circuit's expertise and, in

all hikehhood, also will lack national uniformity

The multipheity of suits would irreparably

harm ARTBA. See, e.g., 11A WRIGHT AND MILLER

PED. PRAC. & PROC. Civ.2d §2944 (1995 & Supp

2010) Clegal remedy may be deemed inadequate if

lunter alta| cllective legal rehef can be secured only

by a multipheity of actions’); /daho v. Coeur d'Alene

Tribe of ldaho, 521 U.S. 261, 273-74 (1997) Clederal

court's equitable jurmsdiction [can be] necessary to

avoid ... |the]| possibility of [a] multipheity of suit:

causing irreparable damage’) QGntcrior quotation:

omitted, textual altcrations in onginal, cllipsi:

added, citing Charles Warren, kederal and State

Court Interference, 43 HARV. L. REV. 345, 377-78

(1930)); fteed Interprises v. Corcoran, 354 F.2d 519,

023 (D.C. Cir. 1965) (inding multiplicity of legal

proceedings to constitute irreparable harm). As the

inevitable preemption and SIP challenges wind their

way through courts in various circuits, the

uncertainty over §209(c)’s scope jeopardizes sound

planning under CAA’s SIP process. To make matters

worse for ARTBA’s members, tailure to meet SIP

deadlines results in sanctions that withhold highway

construction funding. 42 U.S.C. §75090b). Kor the

foregoing reasons, ARTBA’s substantive issues

require expeditious and uniform resolution by the

D.C. Cireuit, with the possibility of review here

11. RkE-PROMULGATION REOPIENS

REVERE WwW

WPA elected to join ARTBA’s petition with

MPA’s rulemaking under the Bond Amendment. In

conjunction with that rulemaking, WPA re-proposed

the entire §209(e) rule, with giuinor revisions, 72 Fed

Reg. at 28% 391-93, and re-promulgated that entire

rule, with minor revisions. 73 led. Reg. at 59,379-80

That reopens the cntire §209(e) rule to review:

When [IPA] reopens a proceeding tor any

reason and, after reconsideration, issues a

new and final order setting forth the rights

and obligations of the partics, that order

even Jf ato merely reaffirms the rights and

obligations set forth in the original order — 1:

revicwable on its merits.

BLE, 482 U.S. at 278 Clark, 749 F.2d at 744

(agency decision not to amend long-standing rules

after a notice and comment period is reviewable

agency action’) Under the circumstances, “the

period for secking judicial revicw [runs] ancw”

because “the agency ... by some new promulgation

creates the opportunity for renewed comment and

objection.” Ohio v. KPA, &388 F.2d 13825, 14628 (D.C

Coit 1988). ‘The other circuits to address this or

Jmoilar issues are in avreement. See, e.g., [lhl ln

Vv. MPA, 198 I.3d 1224, 1237-39 (Oth Cir. 2000)

(KE PA’s detailed cxamination of the issue in it:

letter and its affirmative assertion of the application

of the dispute rule reflect a sufliment degree of

cparatene: novelty, and finality, to tmgger the

limitations penod for judicial review’); Friends of the

Atplen-Susquehanna Trail, fnew vo. Surface Transp

Bd., 252 k.3d 246, 260 (36d Cir. 2001); People of Stat

of Cal. vu. FCC, 905 F.2d 1217, 1245 (9th Cir. 1990)

In the rulemaking context, the circuits apply

narrow review only when plaintilfs seek review of

regulatory text hot covered by the agency

rulemaking Compare, Cis Aelle, { erin, iZ I od

1501, 1515 (6th Cir, 1995) worth 5S Fed. Reg. 17,948

17,967 (1998); compare also Public Citizen [ne

Mineta, 3438 F.3d 1159, 1170 (9th Cir. 20038) with 66

led. Reg. 65,3876, 65,408 (2001); compare also Pan

American Grain Mfp. Co., tne. vo. IPA, 95 ’.8d 103

104 n.1 (ist Cir. 1996) with 6O Fed. Reg. 28,3383

28,3436 (1995). In all of these cases, the plaintif!

wanted to address issues and portions of regulation

outside the issues and regulatory text in the NPRM

By contrast, EPA re-promulgated its §209(e)

rule in its entirety, with peneral revisions and those

implementing the Bond Amendment. In doing so

MPA heightened its disparate rule on non

locomotives and locomotive: Which at least before

2008 had resulted from two separate rulemaking:

by proposing the disparate treatment in the re

promulgated rules, HPA removed the aura. of

historical accident and heightened the implication

that §209(¢c) protects only in-use locomotives from

leet Rules In addition eontrary LO PPA

arguments in HMA v. EPA, 88 F.3d at 1098, the

Bond Amendment's using “standards — or other

requirements) to describe §2Z09(c)(2)CB)'s preemption

Pub. L. No. 108-199, §428(e), 118 Stat. at 418-19,

shows that §2Z09(e)(2)(B) mirrors §2Z09(e)(2)(A), which

bolsters the breadth of “othe requirement eae

new statute is “entitled to preat weight in Ithe|

statutory construction’ of &$2ZO090(e). led Lion Broad

Co. vv. FOC, 895 US. 867, 880-81 (1969). Accordingly

ARTBA had every right to comment on precmption

Issues, even without a prmor petition under §553(e)

Moreover, ARTBA has every mneht both to an answer

from EPA and to judicial review of that answet

Kven as to } Ue! such as thie market

participant exception (ie., ARTBA’s issue #4) that

fall outside both ARTBA’s administrative petition

and the comments specifically requested by HPA’:

NPRM, ARTBA had every ngeht to comment becauss

the issue was relevant to the regulatory text that

KPA proposed. As the panel notes, a strand of D.C

Circuit authority describes such comments as

“goad|ing] an agency into a reply.” for which the D.C

Circuit demes judicial review. App. lla. Fortunately

no other circuit has followed the D.C. Circuit in so

hmiting the comment process on issues that fall

Within the proposed regulatory text. A comment that

relates to the proposed revulatory text is essentially

a petition to change that text in the final rule, and

“1553(e)| apples not merely to effective rules... but to

proposed or tentative rules.” APA Leg. Hist. at 260

(emphasis added); accord id. at 201 (“this subsection

lee, S53(e)] applic lo... proposed or. tentative

rules’) ‘Vhas Case present: an opportunity LO

mivalidate this over-narrow review before it spread:

outward from the D.C. Cireugst

Hid. ISSUE PRECLUSION REQUIRES

KhMOPENEK

hive years after ARTBA petitioned EPA and

fourteen months after ARPBA sued for unreasonable

delay and constructive denial, WPA issued its &209(e)

NPRM. 72% Fred. Rey. 26.09% (2007). HPA them moved

fo issn ARTBA’s prior suit for mootness, quoting

from dn ve Intl Onion, 281 F.8d 51, 54 CC. Ca

YQOO), that NPRMs moot unreasonable-delay claim:

based on “a matter that the agency proposes to

repvulate in that rulemaking,’ App. J1lla, and arguing

that “HPA has now commenced a rulemakiny on the

issues ARTBA raised.” App. 109a.

Although the panel suppest: that thi provide:

mere “evidence” of what IPVPA’s rulemaking meant,

App. loa, WPA is collaterally estopped from denying

hhoW that the NPRM crossed tire rCcopecncy) threshold

then. Indeed, AR'VBA argued in 2007 precisely what

(he panel argues now: that P?A proposed nothing

OMtpare App lla (“KPA NPM docs not propost

any auction on ARTISA’s petition’) (erting 72 Ked. Reg

at 2% 209-10) (ARTBA) with App. at loa ClPA went

further Jthan [undicatiing| that jit] had undertaken

[no] serious, substantive reconsideration’ |, saying

expletly ian its [NPRM] that at was not proposing to

adopt the [J changes requested by ARTRA in ot:

pelition ) Cectinge ¢2 hed. Repo at ZR YOO) Ginterior

quotations and citations omitted) (panel). AKTBA

lost that argument. ARTBA vo. HPA, No. 06-1112

(|) ¢ Car. Oct. d, ZO007) (Ayop llOa). I lac prechu WOT)

prevents ARTBA’s losing the opposite argvument now

by holding = that WPA’ NVPRM mooted

ARTBA’ unreasonable delay claim, the — prior

adjudication necessarily held that HMPA’s NPRM did

something. Certainly mere publication of notice of a

petition Cannot moot an unreasonable-delay claim,

Pub. Citizen flealth Research Group v. Commer, 740

Red 21, 34 (DC. Cir. 19%4). The only thing that

could moot ARTBA’s prior unreasonable-delay claim

is EKPA’s having done in ZOO7 what KPA argued in

2007 that IPA did: “commence|) a rulemaking on the

issucs ARTBA raised. App. JO09%a. The pror ruling

necessarily held that HPA reopened its §Z09(e) rule

iven af that was: Wrong then, it binds IctPA now

Durfee $75 U.S. at 111; Mtke Hooks, 313 F.2d at

699; Dozier, 702 F.2d at 1191; Underwriters Nat

Assur. Co. vo. North Carolina Life and Acc. & Health

[ris (guaranty Ass th, 4h oe O91, 106 7 (1982).

In ARTBA’s view, the panel here had no

authority to reject the conclusive determination that

MVPA’s rulemaking addressed the issucs that ARTBA

raised. Under the circumstances, the court of appeals

had jurssdiction, either under &307(b)Q1) over the

final rule itself or under the All Writs Act over KPA’s

dodping the issues that ARTBA raised,

ln PA view, however, an unreasonable

delay Clanm lke ARTBA’s pror suit belonged in the

distmet court under CAA &304(a)(Z), not in the court

of appeals under &4070b)C1) or the All Writs Act. 42

U S.C © (604(a) Before CAA 1990 amendment

such claims plainly belonged in the courts of appeal

Srerra Cliib i Phomas, 828% F.2d at 790-9]. but KPA

Claamed that the 1990 amendments changed that

Pay Ld a a Am. Lungp Assn vo. Retlly, 962 2d 25%, 26Y

O45 (2d Cos 1992) CC ]tphe uitalitue sylopvism 1

bottomed on oa fallaey namely their theory that

whe)

‘Clean Air Act) nondiseretionary-duty ceses are a

subset of unreasonable delay cases’ [but thhe two

catevores, however, are distinct’). The resolution of

this issue in KLPA’s favor could defeat issue

preclusion. But see Newdow vo. Lefevre, 59% 3d 638,

645 (9th Cir. ZOLO) CSteel Co. |v. Citizens for a Better

Ienotronment, 523 US. &4 (199%)] did not overturn

thie broddinigss of every Case that had been decided

using the ‘hypothetical jurisdiction’ approach”). liven

Wout defeats AR'TBA’s issuc-preclusion claim, this

Court should resolve the splits in authority.

IV. KARLIER DECISIONS CONTROL INTRA

CIRCUIT SPLITS

Under Navajo Tribe, anyone seeking judicial

review outside §&307(b)(1)'s GO-day window must

present their anformation or claims to KPA by

administrative petition, seeking judicial review only

after KPA denies the petition Navajo Tribe, 515 .2d

at OGG. leven if other circuits and Congress had not

embraced this sensible approach, see Sections 1.B

1.€, supra, the D.C. Circuit settled the issue in 1975.

As a subsequent three-judge decision, nothing in

National Mining can unsettle that settled question.

Without any party or the National Mining

pancl’s even considering Navajo Tribe, see note 4,

supra, the National Mining panel ruled the opposite

way. In ats bnefing and its petition for rehearing,

ARTBA argued that prior circuit precedent bound

three-judge panels am the D.C. Circuit to ignore

National Mining as the later decided case in an

lntra-circugat Split The panel inored that obligation.

The circuits are split on how to address intra

eircuit splits, an issue that was decisive in thi:

tigation. The Ninth Ciremt elevates intra-cireuit

splits to the en bane court. Atonio vo. Wards Cove

Packing Co., Inc., $10 F.2d 1477, 1478-79 (9th Cir.

1987) (en banc). By contrast, the weight of circuit

authority (Gncluding the D.C. Circuit) calls for

disrevarding the second decision in the intra-circuit

split, reasoning that the second three-judge panel

lacked authority to overrule the decision of the first

three-judge panel. See, e.g., Ryan v. Johnson, 115

i4d 19%, 198 (3rd Cir. 1997); McMellon v. United

States, 387 F.3d 829, 3833 (4th Cir. 2004) (en bane):

Southwestern Bell Tel. Co. v. City of El Paso, 2432

h.3d 936, 940 (5th Cir. 2001); Salmi vo. Sec’y of

Health & Human Servs., ‘(74 ¥.2d 685, 689 (6th Cir.

1985): filler v. Oklahoma ex rel. Used Motor Vehicle

& Parts Comm'n, 327 ¥.3d 1247, 1251 (10th Cir.

20023); Morrison v. Amway Corp., 323 F.3d 920, 929

(ith Cir. 2003); Indep. Cmty. Bankers of Am. v. Bd

of Gous., hed. Reserve Sys., 195 '.3d 2%, 34 (D.C. Cir.

1999). Finally, the Kaghth Circuit takes the least

disaiphned approach to stare decisis and the

authority of three-judge panels: “|wlhen there is an

intra-circuit spht, we are free to choose which line of

cases to follow.” Joua Hong Chang v. Minnesota, 521

ki3d &28, 6832 n.38 (8th Cir. 2008). Here, the panel

followed the kighth Circuit in choosing to ignore the

carher preeedent and to accept the later one.

In the criminal-justice context, this Court has

recognized the “raw power of [jury] nulhficeation.”

Graham vo. Collins, 506 U.S. 461, 487 (1993)

(alteration an original, iaterior quotation omuttced)

(Thomas, J., concurring). This Court’s supervisory

authority over the lower courts requires the Court to

address the judicial variety: nullification by selective

application of otherwise binding precedent. Given

the importance of stare decists and judicial authority

to htigants and the publhe generally and to this

htigation specifically, the Court should recopnize and

hold that three-judge panels are not free to reject

binding cireuit precedent. Litigants and the public

place great faith in stare decisis, both in ordering

their behavior and in deciding when to devote the

considerable resources that htigation requires. Jor

courts to command public trust as fair and impartial)

arbiters, litigation cannot be a lottery or coin toss.

V. CAA REVIEW RAISES IMPORTAN'T

ISSUES

CAA §209 affects all citizens directly through

vemeles and even garden cquipment, as well as

indirectly through costs imposed on construction and

transportation. The larger CAA affects citizens

(through pubhe health, industry and the economy,

consumer products, and even fireplace: and

backyard barbecues. ‘The panel would freeze CAA

rulemaking on all these fronts and more

$y contrast, Congress recognized that it 1s

“not be in the public interest to measure for all time

the adequacy of a promulgation 2... by — the

miformation available at the time of such

promulgation,” and so allowed “challenge |[to} any

promulyatiion}| whenever it is alleged that significant

new information has become available.” S. REP. 91-

1196, 41-42 (1970). As explained in note 7

Conpress wisely revised the Senate’s trigger from

, supra,

after-arising information to alter-arising grounds,

but the larger polhey issuc remains intact: neither

courts nor HEPA should freeze rules in place merely

because those rules once seemed correct. “[A]gency

interpretation is not instantly carved in stone [and]

to engage in informed rulemaking, [avencies}] must

consider varying interpretations ... on a continuing

ts ss

basis.” Chevron, U.S.A., Inc. v. NRDC, 467 US. 837,

863-64 (1984). Under the circumstances here, new

information compels new rules.

Kor example, PA’s disparate treatment of

locomotives versus non-locomotive nonroad vehicles

suggests, exphetly and implheitly, that §209(e)

protects in-use locomotives but not im-use

construction equipment from leet Rules. Indeed,

MPA previously called ARTBA’s tivation avainst In-

Use Controls and Fleet Kules in Texas” an

“nappropriate collateral attack On [PA's]

repulations.” 66 Fed. Rep. 57,223, 57,224-25 (2004).

Although EPA’s response to ARTBA’s | petition

professed some agreement with ARTBA on key

points, App. 28a, the procedural stature of PA's

response led the Ninth Circuit to grant a motion to

strike KPA’s response, thereby forbidding a htigant

even to cite EPA’s action as an authority. Natl Ass'n

of Hlome Builders vo. San Soaquin Valley Unified Air

Pollution Control Dist., O8-17309 (9th Cir. May 14,

2009) (App. 1164); cf. 75 Fed. Reg. 28,509, 28,510

(2010) (proposing approval of SIP rule under IKPA’s

challenged views of &209(c)’s preemption).

Intentionally or not, KPA has punted to the

Various circuits issucs that Conpress wanted the

D.C. Circuit to decide uniformly. Adamo Wrecking,

434 U.S. at 283-84; 42 U.S.C. §§7601(a)(2)(A),

T607(b)1). «PA's preemption rules and its response

to ARTBA’s petition are inadequate for nationwide

uniformity, thereby triggering jurisdiction under

both §S07(b)(1) and the All Writs Act.

Minally, the fact that §307(b)(1) and other

similar statutes provide the D.C. Circuit exclusive

jurisdiction magnifies this Court’s reviewing role.

Although it always is the last backstop apyainst

eps

tded

crrors 1n the lower courts, this Court usually can rely

on the federal circuits to resolve difficult issues, with

this Court’s resolving circuit splits that materialize.

Iexelusive jurisdiction in the D.C. Circuit greatly

reduces the room for circuit splits to develop. Here,

this Court is not merely the last backstop; it is the

only backstop to enforce the congressional scheme.

CONCLUSION

The petition for a writ of certiorart should be

yranted.

June 3, 2010

Nick Goldstein

ARTBA ‘Transportation

Development Legal

Advocacy & Kduc. Ctr.

1219 28th Street NW

Washington, DC 20007

Tel (202) 289-4434

Max (202) 289-4435

hespectfully submitted,

Lawrence J. Joseph*

1250 Connecticut Ave,

NW, Suite 200

Washington, DC 20036

‘Tel (202) 669-5135

I'ax (202) 318-2254

lumail W@wlarryjoseph.com

* Counsel of Record

United States Court of Appeals for the

District of Columbia Circuit

AMERICAN ROAD & TRANSPORTATION BUILDERS

ASSGCIATION,

PielhiPlONER

ENVIRONMENTAL PROTECTION AGENCY AND LISA

PEREZ JACKSON, IN HER OFFICIAL CAPACITY,

RESPONDENTS

and

ASSOCIATION OF AMERICAN RAILROADS, ET'AL.,

INTERVENORS

No. 08-138]

Argued Nov. 9, 2009

Decided Dec. 11, 2009

Before: GARLAND and KAVANAUGH Circuit

Judges, and WILLIAMS, Senior Circuit Judye.

Qn Petition for Review of an Order of

the Environmental Protection Agency

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS

WILLIAMS, Senior Circuit Judge: The American

Road and ‘Transportation Builders Association ts a

trade organization representing the “transportation

construction industry —-companies that build roads

public transit systems, airports and the lke. In 2002

ART BA, as the group calls itself, petitioned the U.S

IKnvironmental Protection Agency to amend two

regulations implementing § 209(e) of the Clean Air

Act (codified at 42 U.S.C. § 75438(e)). EPA had

originally promulyated the provisions at issue—40

C.FLR. § 85.1603 and 40 C.FLR. pt. 89, subpt. A, App.

A—in 1994, 59 Fed. Reg. 36,969, 36,986 (July 20,

1994); 59 Fed. Reg. 41,506, 51,849 (June 17, 1994),

and then readopted them in 1997, 62 Fed. Reg.

67,733, 67,736 (December 380, 1997). After a bit of

litavation over the avency’s failure to act on ARTBA’s

petition, IPA formally opened it to public comment

in 2007, 72 Fed. Reg. 28,098, 28,209-10 (May 18,

2007), then rejected it in ZOO8%, 74 Fed. Rey. 59,034,

59,130 (October &, 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 vo. US. Department of the

Interior, 70 F.3d 1345 (D.C, Cir. 1995), requires us to

treat ARTBA’s petition to SPA as a challenge to the

repulations 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. § 76070b)().

Clean Air Act § 209(c) prohibits states from

Haposimpg certain emiussions-related regulations on

various categories of engines and vehicles. ARTBA

takes the position that IPA’s rules interpreting §

209(c) have the effect of allowing states to adopt

preaisely 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 HPA to amend one of

is regulations, 40 CAR. § 85.1608, to make clear

that among the laws preempted are “fleet average

‘

standards,” which prescribe @missions limits for an

operators suite of vehicles in the aggregate. See

Kingine Mfrs. Ass'n v. South Coast Air Quality Mpmt

Dist., 541 U.S. 246, 249-50 (2004). The request that

MPA revise 40 C.F.R. pt. 89, subpt. A, App. A, by

contrast, reflected ARTBA’s view that that provision

affirmatively deems permissible state reyulations

that the statute, properly construed, prohibits. In

response to ARTBA’s petition, EPA offered a lengthy

analysis disputing that further specificity was

warranted where 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 Ill of the Constitution requires ART.

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

G61 (1992). In EK PA’s view, ARTBA has failed to do so

with respect to cach of the numerous putative harms

iG identifies, including amony others injuries arising

from state air quahty remediation plans requiring

PA's approval. See Clean Air Act & 110(a)(2)(14)Q),

42 USC. § 7410(a)(2))0). This court’s decision in

Louisiana Kkinvotronmental Action Network — v.

[srowner, &7 F.8d 13879 (D.C. Cir. 1996) CLEAN”), the

government claims, “squarely defeats ARTBA’s

standing argument” to the extent it hinges on injury

attributable to “any state regulation that KPA must

approve.” Respondents Br. at 29

The government drastically overrceads LHAN

There several petitioners challenged an HPA rule

establishing procedures for deciding whether to

approve state implementation plans under the Clean

Air Act. &7 F.3d at 1381. One complaint was that the

rules might allow HPA to approve a state regulation

and enforce it as a federal one, even though it was

more stringent than any regulation the KPA could

have implemented on its own, Id. at 1383-84. The

party secking rehef, 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 is about to be federalized

by the EPA” /d. at 1384. Reparding the harm:

alleped as “hypothetical” we found a want of

standing. fa

Thus LEAN 1s simply an application of the

conventional understanding that highly speculative

concerns do not satisfy Article HIPs injury-in-fact

requirement; it is not a holding that the injuries

threatened by EPA rules governing — future

assessment of proposed state implementation plan

are per se unduly remote. The canonical “actual or

Wninent” threat of injury remains, of course,

perfectly sufficient for standing purposes. See Lujan,

504 U.S. at 560; Summers v. arth Island Inst., 129

S.Ct. 1142, 1149 (2009).

ARTBA, for its part, has pointed to no fewer than

four state repulatory repimes that, it allepe:

currently subject its members to burdensome laws

that are not permitted under the Clean Air Act, and

that either have been approved by ELPA or are to be

submitted for its approval. Petitioner’s Br. at 26-27.

lf 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

lund, Inc. vo. Glickman, 154 F.3d 426, 4388-48 (D.C.

Cir. 1998) (en banc). And in the event that we agreed

with ARTBA’s substantive views, we could order

IPA to reconsider its decision to stand pat on its

existing rules. This is the remedy we typically afford

meritorious petitions seeking review of agency

decrsions not to initiate rulemakings, and we have

obviously never regarded such rehef too speculative

to satisfy constitutional standing requirements. See,

e.g., Massachusetts v. HEPA, 549 U.S. 497, 534-35

(2007); American Horse Protection Ass'n v. Lyng, 812

KkYd 1, 7 (D.C. Cir. 1987). Standing, in short, is not

ANTBA’s problem.

What dooms the organization’s petition in this

forum instead is subject matter jurisdiction. Vhe

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

Kederal 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 § 3O7(b)Q1), 42 U.S.C. & 7607(b)(1).

ARTBA filed suit in this court within 60 days ot

KPA’s decision rejecting the organization’s petition

for rules amendments. The question is whether that

agency action opened a new filtngy window—or if

instead we are obhged to treat a petition to revise

regulations as a challenge to their promulgation,

with the result that the relevant chronological

analysis runs from that earher date.

The general rule is that it is a perfectly vahd

“method of obtaming judiqial review of agency

regulations once the lhmitations period has run... to

petition the agency for amendment or rescission of

the regulations and then to appeal the agency's

decision.” NLRB Union vo. FLRA, 834 F.2d 191, 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 alleyed

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

fit falls outside the period im which judicial review

of the promulgation is) permitted. J/d.; 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, jyudimally 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 challenped the regulation

on demonstrable prounds of substantive invalidity.”)

(emphasis m original, internal quotation marks

omitted); NLRB Union, 8384 F.2d at 196 [A]

petitioners 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 pernod.”) (emphasis

in original); functtonal Music, Inc. v. CC, 274 F.2d

543, 546 (D.C. Cir. 1958) .

We have subjected that reneral rule, however, to

an exception. National Mining Association identified

a circumstance in which an ageney’s demial of a

revision-sceking petition does not allow rewiew of

alleged substantive detects in the original rule, even

under the deferential standards applicable to review

of such denials, outside the statutory JIimitations

penod running from the rules’ orginal promulgation

the case im which Congress has “specifically

address|ed] the CONSeGUCNHCES of tailure to bmng a

challenge within the statutory period.” 7O F.3d at

1350. We charactenzed the statutes at issue in

NLRB Union, feuncttonal Must , and similar cases as

“not expheitly sayfing|” that “Congress meant totally

to foreclose review after the statutory period.” Jd. It

Congres s “directly focused on the issue,” however, a

different Outcome results yudicial review ol a

petition to repeal or revise rales is) time-barred

except to the extent that the statute allows review

based on later-arising grounds. /d

Specifically, National Mining Association held

that the following language in that case from the

Surface Mining Control and Reclamation Act

amounted to an expheit decision to preclude review

of repeal- or revision-secking petitions filed outside

the statutory deadlines

A petition for review of any action subject to

judicial review under this subsection shall be

filed an the appropriate Court within sixty

days from the date of such action, or after

wh date af the petition is based solely on

yrounds arising after the saxticth day

ld) (emphasis omitted). We noted, moreover, that

“Conpress has adopted similar limitations on judicial

review on other cnvironmental statutes Ciblinp

amon others our own Jimitation here, Clean Air Act

BOTb)OL). Id. at nZ. Nattonal Mining did not, so far

rf we can diseern, suggest that such Janpuaype

wophed any sort of limitation on the reeopnized

ability of a party avainst whom a regulation 1s

enforced to contest its validity in the enlorcement

context. Sec, e.p., NLR Union, 644 F.2d at 195-96

We cannot make out any material distinction——at

any rate any distinetion helpful to petitioner

between the statutory lanpvuaye at issuc in National

Mininp Association and the statutory languape at

issue here. Hection §& SO70)01) in fact imposes one

additional constraint on petitions brought outside

the onpainal GO-day window based on alter-arnising

yrounds: they must be filed within 60 days of the

new event, rather than any tume after it. Nalional

Mining Association therefore compels the conclusion

that ARTBA’s 2006 petition for judicial revicw 3

tiie barred for falling outside the 6O day period that

& $07(b)O1) provided for court challenges to the 199%

re-promulgation of 40 CFR. § 65.1605 and 40 Ck

pt 433 ibypt Ay. App A at least iansolar a the

peblilion raise poll that could have been brouvht to

Our attention ma 1994. See {Q) | fd at 14300, laoZd

LRTBA offers two reasons why, in its view, we

have yursdiction in any event. larst 3 the argument

that the limitations period in § GO7(b)(1) can run only

against mpe challenges. Since ARTBA had no ripe

Claam when HVA repromulyuted the rule hie

uUyyeEsStLION for the organization is permitted to

attach Lhicégih JiOV Y ha) be of peasonimy bynipodicas le

LWO procedural (juieestion when freshly ripenca

Clagms may be raised under & SO7M)O1): and where

they should be filed

Ne answered the rst of these in LILAN. While

Ve apyroed with petitioner that § 307(b)01) s provision

for yudieial review after the initial filang period for

tat based on new!) anisiny prounds Gneompassed

thie occurrence of an eGvent that Pipes a claim /

.30 8 6at boy vt noted = the @CUiIOl) expdicit

reecqgusineeiieiil tial a ype tition predicated Olh any wel

new event be filed within 60 days of the event. /d

I} i question Wher precisely a party }

Upposed to bide uch a Claim matter among othe)

rcason Decause 1 agagelermi ne Which hiding oO)

LRT BA ] thie (sr if that miust have COMmeG WILhnN (>t)

days of some alter-arising yround the 2ZO0Z petition

to Ibs Or baie ZO06 petition to this court The

answer is ie traavhtflorward than it may appeal

Qur cases on the matter start with Oljato Chapter of

the Navajo Tribe vo. Train, 515 2d 654, 666 (4

( I ee Fea Vhiere W t aid that it wa “Within ou

mnecrenl powe) LO eniorce our ntere fain Informed

decision-making by requiring presentation to the

Administrator of any new information thought to

justify revision of a standard .. . reviewable under

Section O72 Of course the ripening of a petitioner's

claim is hardly the sort of novclty that scems to

require special ayency reaction. Later we raised the

ante by characterizing this rule as jurisdictional, The

Group Against Smog and Pollution, Ine. v. HPA, 665

Yd 1484, 1290 n.45 (D.C. Cir. 19%1), see also

Natural Resources Defense Council, Inc. v. Thomas,

845 F.2d 1088, 1091-92 (D.C. Cir. 1988), but those

ceases, hke Oljato, involved claims that new

Information called for a rule change—not that a

mtential claim had become newly justiciable

J J

As it happens, AR'THA cites no event (other than

MPA’s decision reyeeting 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 ZOO]

Texas law imposing diesel emission lmits that

ARTBA says is in fact preempted by §& 209(e) and

that “impose: additional costs and repvulatory

burdens on ARTBA’s members,” Petitioners Br. at

26 —but that law took effect well over 60 days before

the organization’s July 12, 2002 petition to KPA

Another event that ARTBA sces as significant is

RPA’s 1998 rulemaking concerning the scope of

federal preemption of state reyulations of new

locomotive engines, which was also obviously too

remote in time. Finally, ARTTBA now seeks to make

hay of a 2004 Supreme Court decision and a 2004

statutory amendment—neither of which can render

its ZOOZ petition or its ZO0% appeal “filed within sixty

days after such grounds arise.” See §& SO7(b)O1).

1 O)sa

Because we find that none of these events satisfies

the 60-day criterion in § SO7(b)Q)) for challenges

based on after-amsing grounds, we need not

determine where ARTBA should have filed in order

to invoke § SO7(b)O)’s provision for after-arisiny

grounds, nor whether ARTBA’s petition met the

additional requirement that it be “based solely” Ol)

those grounds.

ARTBA next argues that an EPA rulemaking in

2007 0% ellectively reopencd the regulations now at

issue to judicial review. See National Ass'n of

Reversionary Prop. Ouners v. Surface Transp. Bd.,

166 F.Sd 135, 141 (DC. Cir. 199%) (““NARPO”)

(describings the “reopening doctrine”). Jt does not rest

on the fact that EVA responded to its arguments. We

rarcly if ever find such a response sufficient; if a

party were allowed to “yoad an agency into a reply,

and then sue on the prounds that the avency .. . re-

opened the issue,” Am. Jron & Steel Inst. v. KPA, &8%6

2d 390, 39% CC. Cir. 1989), the agency’s thorough

answer would put it at risk of “reopening,” while a

taciturn response would put ito at cisk of being

faulted for acting without reasoned de isionmaking.

see National Min. Ass'n, 70 F.8d at 2451. Rather,

ARTBA contends that in the course oF the separate

rulemaking the agency conducted simultaneously

with the pubheation and rejection of ARTBA’s

petition, PA effectively reconsidered the totality of

its & ZO9%(c) regulatory framework.

What HPA in fact did in its rulemaking notice

was to desenbe 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:

ila

We arc proposing to ercate a new part 1074

that would describe the federal preemption of

state and Jocal emission requirements. This

is being done as part of KPA’s onyvoiny cffort

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 existing regulations in 40 CEFR part

4&5, subpart Q. With the exception of the

simplification of the language and specific

changes described in this section, we are not

chanping the meaning of these regulations

’

72 Ked. Reg. at 2%,209/2-3 (emphasis added). The

“speeihe changes” the agency referenced consisted of

two new regulations, both implementing recent

lepislation preempting states other than California

from imposing certain emissions-related rules on a

new class of small engines. /d. In the final rule

announcement, EPA carmed out its proposal,

repeating the language quoted above more or less

verbatim. 753 led. Reg. at 59,130/1. Consistent with

its) asserted intention to rewrite the relevant

repulations in plain danguape without changing their

meaning, IPA also republished its § ZO9(e) rules in

full. dd. at 59,380

Considering “the Cntire context of the

rulemaking,” NARPO, 158% FoSd at 141, we conclude

that HPA did not reopen consideration of the

repulations ARTBA asked it to revise. Seemingly on

ARTBA’s side are Ohvo vu. KPA, 638 F.2d 1325, 132%

(IOC. Cir. 198%), and Montana vo. Clark, 749 |

740, 744 (D.C. Cir. 1984), cases in which the agency

included the pre-existing regulation in a Notice of

«2d

Proposed Kulemaking and responded to comments on

} 2a

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 pubheation of petittoner’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’) 145%. Though addressing

feedback from ARTBA and others, the agency pave

no “indication that fat] had undertaken a serious,

substantive reconsideration” of the rules in question.

See td. In fact, KPA went further, saying explicitly in

its Notice of Proposed Rulemaking that it was “not

proposing: to adopt the .. . changes requested by

ARTRBA in its petition.” 72 Fed. Rey. at 26,209/38. As

had the avenecy in National Mining, WPA appears

merely to have sought comments on the premise that

they might have persuaded it to actually reopen the

matter. See 70 F.8d at 1451.

hinally, ARTBA identifies one further piece of

evidence indicating that KPA reconsidered the

relevant regulations. In 2006, the organization filed

suit alleging that KPA was unreasonably delaying

acvion on ARTBA’s 2002 petition. Sec Am. Rd. &

Transp. Builders Ass'n v. HPA, No. 06-1112 (D.€.

Cir., Oct. 5, 2007). In the course of that ltipation,

KPA 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 IX V?A that it was

reopening the rules ARTBA challenped. But even a

cursory glance at the phrase, in its original context,

reveals that HPA was simply referring to its

sublication of ARTBA’s retition rather than

J | ;

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

Nattonal Min. Ass’n, 70 F.3d at 1351 (The decision

to publish a petition for rule-making . . . 1s not

evidence of a reexamination of the pohey at issue in

the petition.”).

We conclude that we are without jurisdiction to

hear this petition. Accordingly, the case 1s

Dismissed.

United States Court of Appeals for the

District of Columbia Circuit

AMERICAN ROAD & TRANSPORTATION BULLDEKS

ASSOCIATION,

PETITIONER,

IENVIRONMENTAL PROTECTION AGENCY AND LISA

PirREZ JACKSON, INHER OFFICIAL CAPACITY,

RESPONDENT:

ASSOCIATION OF AMERICAN RAHLROADS, ET'AI

INTERVIENORS

No. O&-188]

kiled On: Dee. 11, 2009

Qn Petition for Review of an Order of

the Environmental Protection Agency

Sefore: GARLAND and KAVANAUGH, Circuit

Judges, and WILA.LAMS, Semor Circuit Judge

JUDGMENT

This cause came on to be heard on the pctition

lor rCVicw ol all orde of the Mnvironmental

Protection Apency and was argued by counsel. On

consideration thereol, 1t 1s

ORDERED and ADJUDGED that the pctition

for review is dismissed for lack of Jurmsdiction, in

accordance with the opimion of the court filed herein

this date

Per Curtam

KOR THE COURT:

Mark J. Langer, Clerk

United States Court of Appeals for the

District of Columbia Circuit

AMERICAN ROAD & ‘TRANSPORTATION BULLDERS

ASSOCIATION,

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY AND LUISA

PEREZ JACKSON, IN HER OFFICIAL CAPACITY,

RESPONDENTS

ASSOCIATION OF AMERICAN RAILROADS, ETAL.,

INTERVIENORS

No. 08-138]

Mailed On: Mar. 5 2010

Qn Petition for Review of an Order of

the Environmental Protection Agency

BERPORE: Garland and Kavanaugh, Circuit Judges,

and Willams, Senior Circuit Judge

ORDER

Upon consideration of petitioner’s petition for

panel rehearing filed on January 25, 2010, it 1:

ORDERED that the petition be denied.

Per Curtam

FOR THE COURT:

Mark J. Langer, Clerk

loa

United States Court of Appeals for the

District of Columbia Circuit

IMERICAN ROAD & TRANSPORTATION BUILDER:

ASSOCIATION

PETIVIONER

KeNVIRONMENTAL PROTECTION AGE!

PEREZ JACKSON, IN HER OFFICIAL CAPACIT®

ASSOCIA‘TION OF AMERICAN RAILROADS £7

INTERVENOR:

hsled On: Mar. 5, 2010

(Qn Petition tor Review of an Order of

the Mnvironmental Protection Avency

BEERORE: Sentelle, Clnet

Judge, and Goansburg

Henderson, Rovers, ‘Tate

Gaarland, Brown, Ganiffith,

pudgee and Wilham

and Kavanaurh Coircuat

enior Circuit dude

ORDER

Upon consideration of petitiones petition fos

re heariny i) bocarae and the ab ence Ola re quest ah

any member of the court tor

ORDERED that the

a Vole it }

pe tition bye ci 11 1¢ d

Per Curtam

KOR THE COUR’

Mark J Lane r, Ch rt

72 Fed. Reg. 28,098 (May 18, 2007)

ENVIRONMENTAL PROTECTION AGENCY

40 CEFR Parts 60, 63, 85, 89, 90, 91, 1027, 1045,

1048, 1051, 1054, 1060, 1065, 1068, and 1074

[EPA-HQ-OAR-2004-0008; FRL-8303-7]

RIN 2060-AM34

Control of Emissions from Nonroad Spark-

Ignition Engines and Equipment

AGENCY: Environmental Protection Agency (PA)

ACTION: Proposed rule

7 Ts

section x | describes a variety ol propo ed

provisions that affect other categomes of engine:

besides those that are the primary subject of this

proposal. This include; the following changes

* We are proposing to reorganize the repulatory

language related to preemption of state standards

and to clarify certain” provision: We are also

requesting comment reparding a petition — to

reconsider some of the provisions including the

extent to which states may regulate the use and

operation of nonroad engines and vehicle:

x eR

XI. Proposals Affecting Other Engine’ and

Vehicle Categories

A a& A

A. State Preemption

pection 2O9(c) of the Clean Air Act) prohibit:

states and their political subdivisions from adopting

or enforcing standards and other requirements

relating to the control of emissions from nonroad

engines or vehicles. Section 209%(e) authorizes IEPA to

waive this preemption for California for standards

and other requirements for nonroad engines and

vehicles, excluding new engines that are smaller

than 175 horsepower used in farm or construction

equipment or vehicles and new locomotives or new

engines used in locomotives. State: other than

California may adopt and entorce standards identical

to California standards authorized by EPA

MPA promulgated regulations implementing

section 209(c) on July 20, 1994 (59 IR 36987). EPA

subsequently promulgated revised — regulations

Implementing section 209(e) on December 30, 199%

(62 FR 67733). See 40 CER part So, subpart () We

are proposing to create a new part 10/4 that would

deseribe the federal preemption of state and local

CMmMISSION requirements This is being done a: part of

KPA’s ongoing effort to write its regulations in plain

language tormat in subchapter U of tithe 40 of the

Cr The Prapos ed regulations are based directly OT)

the existing regulations in 40 CER part 85, subpart

QM With the exception of the simplification of the

language and specie changes described in thi:

section, we are not changing thie meaning ot these

regulations

Pursuant to section 428 of the 2004 Consohdated

Appropriations Act we are proposing to add

regulatory language to Implement the legislative

restriction on states other than California adopting

after September =] 2006, standards or. other

requirement appheable to spark IvnItion Chpine

smaller than 50 horsepower. We are also proposing

to add, pursuant to that legislation, cmteria for

WPA’ consideration in authorizing ( ahifornia Lo

1 dea

adopt and entorce standards apphcable to such

engines. 'Y

Qn duly 12, 2002, the American Road and

‘Transportation Biulders Association (AR TBA)

petitioned KPA to amend KPA’s rules implementing

ection 209(e) of the Act.!% Jn particular, ARTBA

petitioned KPA to amend its regulation and

Interpretive rule regarding preemption of state and

local requirements “that IM pose Mn- ust and

operational controls or fleet-wide purchase, sale or

use standards on nonroad engine:

ARTBA beheve such control should bo

preempted A wi are already” revising the

preemption provisions to a certain extent in th

rule, we beheve it is appropriate to respond to

ARTTBA’s pebrllon int the context of this rule, while

riving the public the ability to respond to provid

comments regarding ARTBA’: petition HPA is not

proposing tO adopt the explicit chanve reqgue ted by

ARTBA in it: petition howevel MPA wall continue to

review the arguments raised by ARTBA’s petition, a

well as all further arguments provided by ARTBA

e section 428 the Appropriation ket for 2004

“Petition to Amend Kules Implementing Clean Air Act

ection 2OU(e) Amencan Road and ‘Transportation Build

Association (ARTBA), duly 12, 2002. Also, EPA’ received L

additional communication from ARTBA urging KPA to grant

the petition after the decision of the WU. Supreme Court

IMA v. SCAQMD, 541 U.S. 246 (2004). See “ARTBA Petits

| Joseph, AR'TPRBA, to DD Dickinson & Ro Day EPA, Apri

2004. These documents are available in Docket LK VA HQ-OALI

2OO4- OOO:

In 1994, EPA promulgat miter] rul

\ppendi \ t ibpart A of 40 CRK par ppen

provia that tate restrictio 1 Ut! ind «

nonroad enyines are not preempted unde! 2OY

ZAUIDA

ind other commentes luring the pemod for not

and comment on *2810 this issue. We will r po!

Lo the }) tition, and 1! propriate make my change

to the regulations to contorn ur response to VR EBA

and other commentes i the final rul Wet Quest

comment from the public regarding issu related 1

LR TBA petition and how we hould respond

Aupust 21, 2008

RESPONSE TO THE PRTETION OF AMERICAN

ROAD AND ‘TRANSPORTATION BUILDERS

ASSOCIATION TO AMEND REGULATIONS

REGARDING ‘THE PREEMPTION OF STATIC

STANDARDS REGULATING KMISSIONS

PROM NONROAD ENGINES

I. Introduction

(jn duly 14%, ZOOY the American Koad and

Prancportation iiudders Association (ARTBA)

petitionc¢d the Ienvironmental Protection Agency

(PA) to amend it rules implementing section

ZOQGe) of the Clean Air Act (Act)! In particular,

ARTA petitioned PA to amend its reyulations and

interpretive rule reyardinyg preemption of state and

loca] requirement “that Hn pose ji-USE and

Operational controls or fleet-wide purchase, sale or

use standards ob momnroad Cig iis ~ARTBA beheve:

eh Control hould be preempted

Petition to Arend Kale Davigols menting Cleun Air Act

tics Z2EIC) American Koad and Transportation bevailder

ociation CAICITBA) duly 4, 2002. EVA also received an

dditional communication from AKITA urpiny EVA to prant

trite poe tatseons after the decision of the U. : lpreine (Court in

| 1A \ CAQMI), 541] Us 246 (2004). See “AR THA Petition

| dooeph, AR TBA, to 1) Dickinson & Ro Doyle, EPA, April 40

4004 Phi documents are available in Docket LK VA-HQ OAK

iy] OOD

1499494 MPA promulgated an interpretive rule at

ppendix Ato subpart A of 40 CRK part 49.59 ked. KRep. 41405,

940 @Jume 37, 1994). This interpretive rule was amended

part of the rule promulpated on December 40, 1997 (62 hK

(,/ 4 ) The appendix provide mio Olher thingy Phat state

pec lyse tions On the use and operat on of nonmroad Cn ine ure not

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controls or flectwide purchase, sale, or use standards

for nonroad vehicle:

ARTBA argues that IKPA’s determination that

ase and operational restrictions on nonroad enyines

Were not preempted under section 2ZO9(e), and the

€ Cirewit’s alfarmation of WPA’s decision, iynored

reheviaril taalubory comstruction and legislative

history fi oadseo tule that HPA’: later rule

regulating new locomotives and new engines used in

loco mols ve ia Well as decisions i courts in New

fork and Massachusetts concernmy fleet average

qmuission standards, as well as one in Texus on use

restrictions would have vuided IVA to different

conclusions concerning the scope of section ZO9(c)

IV. Request for Comments and Comments

Keceived on Petition

on May 16, 2007, EPA requested comment on

REBA's petition as a part of a proposed rule related

to control of Emissions from spark-ignition nonroad

Cnpine Which also contained certain proposed

Chanpes in the repulations related to preemplion of

tate and Jocal tandards and other requirement:

related to the control ol emi }OoTS! from nonroad

Chiches and enpine (27 bed. Rep. 24097, 24%209-10.14

hi’A proposed to add reyulatory lanpuaye to inplement

if init tq f tigd) 12 ol Tia ( titi Olidate i Appropriation Act

(04 Pub |. No 10% 19% the restrnetions on state standard:

ther requirement applicable to certain small spark

ii mnroud Ernpvineg and Line added criteria toy IPA:

iMderalion ih procecdiny to authorize Calivorniia tandard:

other requirements loi MCla Chapyeagit VA also propo ed to

t po? Higelion 3 vibsitien from p Ti Gos tO a nev part

O74 and to make minor lanpuapye chanyes tor the purposes of

btis t! ! bigs ! pel j neiuape lormat

MPA is not proposing, to adopt the exphieit

chanyes requested by ARTBA in its petition;

however, PA will continue to review the

arguments raiscd by ARTBA’s petition, as

well as all further arguments provided by

ARTBA and other commenters during the

period for notice and comment on this issue

We will respond to the petition, and if

appropriate, make any changes to the

repulation to conform our response to

ARTBA and other commenters to the final

rule. We request comment from the public

regarding syssues related to ARTBA’s petition

and how We} hould re pond

MVA received submissions from approximately one

dozen Commenters that included comments related to

ARTBA’s petition, both supporting and opposing the

petition, either in whole or in part. The commenter

meluded representatives of states and = Jocalitie

environmental OrvaniZalion: manufacturers the

locomotive and railroad industry and ARTBA itself

Some commenter also addr ced Wwsue that are

related to the 3 Lit bra thie poctition but not in the

petition itsell

V. Response to Petition and Comments on

Petition

a Summary of Kesponse

ACTA pelition raise two eeneral ] Wes Of

state and jocal preemption: whether certain Lal

repulations on fleetwide Gmission Irom nonroad

engines are preempted, and whether state and local

restrictions On USE and operation of monroad engine

are preempted Repgardinp the first issu We

monerally avyree that tandard related to the control

of emissions from fleets of nonroad cnpgincs are

preempted, to the same extent that emission

standards on individual enpines are preempted.!%

[ISN 17] However, we do not beleve any chanpe in

repulations is mecessary. ‘The current regulations

preempt state and local standards rclated to the

contre! of emissions from nonroad engines. This

general language would include emission standards

repulating fleets as well as individual enpines or

equipment. Indeed, this) peneral languape comes

directly from the statute and is comparable to the

general language in section ZOU(a) that the Supreme

Court found preempted state and = local fleet

standards Or) new motor vehicles. Iingine

Manufacturers Assn vo. South Coast (¢MA vo. South

Coast), 541 U.S. 246 (2004).“9 [TEN 16]

One issue related to the fleet standard issue is

the effect of section 209 on state and local

authorities’ ability to restmet their own purchasing

or contracting decisions (the market participant

| We distinguish such restrictions from restrictions on

use and operation, which are discussed separately

In WMA vo. South Coast, the Supreme Court found thiast

ection ZOUGa) of the Clean Air Act preempted se veral fleet rule:

enacted by South Coast. The rules restricted the ability of

certain public and private fleets to purchase or lease vehicles

that did not meet the requirements of the rules, based on thie

Cm) ath level of thie vehacl OF whethey they Were

alternative fuel vehicles,” which are vehicles designed to run

on aullenmnative fuels. ‘The court found that the rules did contain

tandards and did not escape preemption merely because they

were directed at purchaser: not manufacturers. However, the

ourt remanded the cuse to the lower courts to addre certain

posi not addressed helow, including “whether some of the

hleet Rules (or some applications of them) can be characterized

miternal state purchase decisions Cand af so, whether a

different standard for preemption apples)” /d at 1764

20a

doctrine’). Reparding this issue, we note that the

Court of Appeals for the 9th Circuit, in reviewing the

remand of EMA vo. South Coast, found that the Clean

Air Act) did not preempt state regulations that

required the state and its subdivisions to purchase,

procure, lease or contract for use of vehicles meeting

speemied air pollution criteria. 49% Fed. 8d 1081 (9th

Cir. 2007). KPA aprees and beheves that subsections

209(a) and 2OG(c) do not preempt these kinds of

achions by a state directed towards the market

choices of the state or its subdivisions.

Kegarding state and local restrictions on use and

operations of nonroad cnpyines and vehicles, we

continue to interpret section 209 and 213 as not

prohibiting state and local restmetions on the use

and operation of nonroad engines.

by General Comments

JuVA received COMMNECHES from several

commenters representing state and Jocal entities

urging in general terms that IPA deny ARTBA’s

petition (Wisconsin Department of Natural

Resources (OAR-2004-0008-0663); Pennsylvania

Dept of Havironmental Protection (OAR-2004-Q008

OG7G6): Northeast States for Coordinated Air Use

Manayement (NESCAUM) (OAR-2004-000%-064 1):

National Association of Clean Air Agencies (NACAA)

(OQAR-2004-0008-065 1 ))

MPA received detailed comments from the

Association of American Railrouds (AAR) (OAR-2004-

QOOO8-O0669), discussed below, which includes a

statement that AAR is not scekimy to change the

preemption provision for locomotives. llectro-Motive

Diesel (EMD) (OAR-2004-0008-0687) provided

comments stating that they support the comments of

AAK and reiterating that preemption of local and

state standards are of vital importance to the

railroad-Jocomotive industry, owing to the interstate

nature of railroad operations. EMD urged EPA to

adopt the part 1074 preemption regulations as

proposed. Similarly, General Electric Transportation

(Gk) (OAR-2004-Q008-0679) states that it supports

the proposal regarding preemption with the

understanding that IcePA is) not changing the

preexisting, preemption provisions. Glo states that

“{t}he anterstate nature of [railroad] operation 1s

more extensive than any other form of ground

transport. For this reason, Congress wanted to

ensure uniform national standards.”

Discussion

As discussed in detail below, although HEPA does

agree in part with ARTIA’s interpretation, Icel’A does

not beheve it is necessary or appropriate to revise its

repulations based on ARTBA’s petition. ‘Therefore,

MPA will not be revising its regulations as requested

by ARTBA Gin this rulemaking. Regarding the

comments from the locomotive-railroad industry

commenters, HPA will be finalizing its proposed

preemption regulations as they apply to locomotive:

ce. Kleetwide Repulations

tL ARTBA Petitton

In the cover letter to AR'TBA’s petition, ARTBA

request Chisel MPA clarify that section ZOO)

precingpts “Heetwide purchase, sale or use standards

on nonroad vehicles.” In the petition itself, ARTBA

refers to “tleetwide averaging, early retirement, and

purchase-sale requirements” ARTBA notes that in

its locomotive rule, MPA expressly includes “Heet

average standards amony the “standards and other

requirements” preempted under section 2ZO9(e)

ARTBA argucs that since the same phrase 1s used to

describe the preemption for other nonroad engines,

state and local “fleet average standards” pertaining

to other nonroad cnyines should also be preempted.

ARTBA also notes that several federal cases have

found that California fleet averayve requirements are

standards

Ww Comments

fn response to ARTBA’s request as it apphes to

fleet requirements, South Coast Air Quality

Manavement District (South Coast) states that to the

extent AR'TBA’s request poes to deetwide regulation

of use or operation, they are not preempted (see

discussion in subsection d. below). South Coast noted

that the Circuit Court cases mentioned by ARTBA

and an the locomotive context, the standards were

applicable to manufacturers, or at least, in the case

of the locomotive regulations, were Considered to

aficct manufacturers of locomotive engines. South

Coast noted HPA’s reasoning that the locomotive

mndustry was different from other nonroad industry

both in terms of the factual setting of the industry,

mecluding the limited number of customers, and

pohey concerns unique to locomotives. South Coast

also notes that [PA has in the past approved

fleetwide requirements On airport pround control

equipment Uhicat required — specific numerical

reductions from the tleetwide G@missions

Revarding fleetwide purchase-sale requirement:

South Coast quoted a YOO! KPA statement that

standards unde) section ZOD(a) and (¢°) are

quantitative timits that are typieally met through

modifying or changing the cnpine or equipment

ae | i

itself, not through controlling how the equipment 1s

operated in-use. South Coast noted the decision of

the Supreme Court in Angine Manufacturers Ass'n v.

South Coast (MMA v. South Coast), 541 U.S. 246

(2004), which found that certain of South Coast fleet

purchase requirements were preempted emission

standards, but stated that the decision does not

mean that all purchase or sale requirements were

preempted. In particular, South Coast noted that the

Supreme Court did not decide whether a different

standard for pre-emption apphes to fleet rules that

can be characterized as internal state purchase

decisions and that the issue was pending in the Oth

Circuit Court of Appeals. South Coast also noted that

it was the amicus curiae bnef of the United States

rovernment that first raised the “market

participant’ issue in the Supreme Court case. South

Coast also noted that the Supreme Court decision

apphed only to state requirements defined to be

standards and the other requirements specified in

section 209(a). ‘Therefore, South Coast said that fleet

requirements that do not pertain to the emissions

Characteristics of the fleet, lke Los Anpeles’s

requirement that airport taxicabs be no more than

seven years old, which aids the safety and image ot

the airport taxicab fleet, would not be preempted.

mouth Coast similarly argued that even if some

fleet requirements are preempted, for mstance those

that require the newest vehicles to be purchased, not

all “early retirement” rules would be preempted.

south Coast noted that nonroad equipment is often

used for very long pernods of time. South Coast

suppests that rules that required very old nonroad

engines to be retired but did not require new engines

30a

to be purchased would not be a preempted standard

under the Supreme Court decision

New York Department of | Environmental

Conservation (NYDEC) (OAR-20040008-0659) state:

that ARTBA’s claims that fleet average emissions

standards for owners and operators of construction

equipment ftleets should be preempted because

federal courts have held that fleet average standards

for light duty vehicles constitute “standards” under

the Clean Air Act is factually incorrect. NYDIEC

states that California Low Emission Vehicle hight

duty regulations apply to mew motor vehicles, and

the term “feet? refers to a manufacturer's model

year sales. NYDEC states that this is a far cry from

the fleet of engines and vehicles owned or Operated

by a construction firm

In its comments, ARTBA stated that clarity 1:

needed to avoid contheting state regulation ARTBA

stated that the decision in #&MA wo. South Coast

controls this decision and that if locomotive fleet

standards are preempted, so must construction

equipment fleet standards. ARTBA stated that there

Should be no presumption against preemption in thi:

Stluation, because the statute is chear on its face and

because there is a long Instory of broad tederal

preemption, at deast with regard to locomotives

ARPBA also states that the Supreme Court found

(hat South Coast's fleet rules conflicted with section

246 of the = Act Which created requirements

appheoable to certain motor vehicle tlheet: ART BA

acknowledges that section 246 apples only to motor

vehicles, but states that this provision underscore;

section VOU: CApress preemption of Fleet Rules a:

standards under section 209

ARTBA states that it is well settled that state:

are completely preempted from regulating “the

design, the construction, and the material of every

part of the locomotive and tender and of all

appurtenances, citing Naprer vo. Atlantic Coast Line,

272 U.S. 605, 611-618 (1926). ARTBA states that

MPA handled preemption of locomotive regulations

differently than preemption of regulations for other

nonroad enyines “Which spring from the same

words in the same section of the same statute - and

that it is “untenable” that KPA treated locomotives

differently from other nonroad cngines, particularly

small farm and construction equipment. AR'TBA also

states that the legislative history of section 2O9(e)

fhe. Repo DingelPs statement reparding state

regulation olf locomotive Operations and the House

Report's note that section 2O9(e) did not apply to

existing nonroad engines| show that state controls

should be preempted for the vehicles’ useful lives

ARTBA also states that its imterpretation conforms

to section LOOC)s preemption for CAA regulated

parts during: thear useful life and section 2ZEs(ajycs)’s

requirement that HPA regulations apply to vehicle's

useful lifes In any event, ARTBA notes that HPA’:

locomotive rule expressly ancludes “fleet average

standards” among preempted standards, indicating

that such standards would also be preempted tor

other nonroad enyines

Reparding: the market participant exception,

ARTBA says that at least where the states would

Hipose criminal oor punitive civil penalties, the

“market-participant’ exception cannot apply. AR TBA

also claims that preemption under the Supremacy

Clause need not include a market-participant

exception ARTBA also argues that any nonroad

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“ynandatory fleet averaye tandards Wat not

premised on the view that a fleet average standard

hould be considered a standard for locomotives but

not other nonronad engines or CQtiiprmenst lt wa

bistead premaused on the view that the unique

characteristics associated with locomotives meant

that a fleet averaye standard appleable to in-use

locomotive flects should categorically be preempted

soon standard related to the control of emissions from

new locomotive

Avain, however, with regard to the issue of “fleet

tandard: there as litthe difference repardiny KVA’s

position orepardingy initial preemption of | s uch

tandards for locomotives as compared to othe:

nonroad envines, and any differences relating to

Calhformia’s ability to receive authorization to enuct

and enforce such standards on “new locomotive

result from expheit differences in the statute and the

nique Circumstances and definition of “new?

promulpvated lor locomotive

2 ‘Phe Market Participant Doctrine

KReparding whether a state o1 local restmetion

this applic only to the state or localbity asa market

participsamit is precanipate d. South Coast observed that

the UWS.) vovernment antroduced this issue in the

IC-MA vo. South Coast case in its amicus curtae brict,

it priayre 203.“ [JIN vAn) Pri thacat bora l the US

poverhnment noted that “the State of California may

be cntithed to place restrictions on the typo: of new

pouabodae vehicle thical thie State and its

mistrumentalties purchase for their own use, citiny

feiuclediony A Cronstructtor Lracde y Council uf Metro

fuist. ow. Associated Butlders & Contractors, b07 US.

21%, 241-232 (1993) (In the absence of any express

or imphed indication by Congress that a State may

not manage its own property when it pursucs its

purely propmctlary mberests, and where analogous

private conduct would be permitted, this Court wall

notinfer such a restriction.’ )

The Supreme Court's decision an that case

expheitly held open the question of whether some

portion of South Coast's fleet rules “can be

characterized as internal state purehase decisions

(and, af so, whether a different standard for pre-

cmiption apphes), MMA vu. South Coast, 124 5. Ct. at

1764, and remanded the case to the lower courts to

address this issue.

The Court of Appeals for the Sth Circuit issucd

an Opmion on this issue since the close of the

comment perod an this rulemaking. HMA vo. South

Coast, 49% ff. Sd 1051 (9th Cir. 2007). ‘That court

found that “the Clean Air Aet docs not preempt

South Coasts fleet rules as they direct the

procurement behavior of state and local yovernment

entities” /d., at 10389. The court referred to several

Supreme Court and Court of Appeals cases that

diseuss the “market participant doctrine,” which

“distinguishes between a state’s role as a reyulator,

on the ene hand, and its role as a market participant,

on the other. Actions taken by a state or its

subdivision as a market participant are ponerally

protected from federal preemption.” /d_, at 1040.

Phe Court of Appeals found that section 2O9(a)

docs not preempt “provisions directing state and

local povernmental entities to purchase, procure,

lease or Contract for use of vehicles meeting specified

air pollution critena.’ /d., at 1046. ‘The court noted

that nothing an the statute or leyislative history

midieated that Congress intended preemption under

ection 2ZO9%Ga) to apply to state proprietary action. ld

at 10434

VA does not beheve it is necessary to specify in

detail all of the boundaries of preemption in every

possible situation that may present itself. We beheve

the courts are well Cquipped to make such case-by

case determinations. However, we beheve that in the

carcumstances presented by the IEMA case, the

determinations of the Court of Appeals appear

reasonable and EPA aprees that subsections ZO9(a)

and 209(e¢) do not preempt actions by a state directed

towards the market choices of the state or it:

Ubdivisions

ARTBA states that the market participant

doctrine should not apply to provisions where the

state would impose criminal or punitive civil

penne tne The Court of Appeals rejected tha:

aryument, stating “we do not see how action by a

tate or local povernment that is proprmctary when

cnlorced bby (otic? mechanism Joses tS propmetary

character when enforced by some other mechanism.”

ld at 104% EPA understands ARTBA’s argument as

it would apply to private entities, but beheves the

question is more complex regarding state and local

entities, EPA takes no position on this issue and

beheves the courts would be the best arbiter of this

do Restrictions on Use and Operation

L ARTA Petition

AR TBA’s initial petition requesting revision to

MVA's nonroad preemption regulations raised several

AOE

issues that ARTBA beheves should Jead HPA to

change ats interpretation that section 209 does not

preempt state and local regulations of use and

Operation — of nonroad vehicles, cnyanes and

equipment. ARTBA noted that the Tanpuagye an

section 2ZO9%(e), which refers to “any standard or other

requirement relating to the control of G@muissions” is

broader than the reference to “any standard relating

to the control of emissions” in section 2ZOU(a), and

that section ZO9(d) on its face apphes only to state

power to control and restrict the use, Operation or

movement of motor vehicles. ARTBA notes the

decision of the Court of Appeals upholding PA's

interpretation in MMA vo. LPA, but ARTBA beheved

that the statute and legislative history resolves any

cmibiywaities and compecls its interpretation,

1. Section 21°3(d)

ARTBA states that since section ZOO(d) refer:

only to motor vehicles, the reference to section 209 in

sectuon 28d) does not apply section YOU (d) to

nonroad engines. ARTBA also says that to the extent

that section 216(d) does import state authority over

m-use nonroad vehicles, it would only do so for new

nonroad veloieles, not non-new nonroad vehicles,

because section 214 refers only to regulation of new

nonroad engines. ARTBA states that it would be

Wopireal to allow states to regulate use only of new

nonroad enpines, piven ELPA’s definition of new,

under which nonroad engines cease to be new when

they leave the showroom floor.

AKRTBA also states that the legislative history

provades the simplest meaning for harmony within

the statute: ARBA notes that the “subject to 209

language on section 2IVG(d) and “any standard or

Ala

other requirement” language in section 2O9(e) were

both an the pre-conference House of Representatives

ball. ‘The 'ouse bill preempted only state and local

standards and other requirements for new nonroad

engines and directed HVA to issue standards for such

new nonroad engines. AR'TBA notes the language in

House Keport 101-490, quoted above, indicating that

the preemption did not apply to existing nonroad

vehicles and engines. ARTBA states that the

language in section 215(d) was meant to show that

the preemption apphes to those new nonroad engine

standards that KPA issues under section 213.

ARTBA also notes that the language in the final

Clean Air Act Amendments did not change the

language in 213(d), but it did change the language in

section 2OG(e) to address both new and non-new

Cheyne

ARTBA also notes that the statements of

mdividuals Senators, like those of Senators Baucus

and Chaffee andicating ther view that states

retammed the authority to regulate in-use operational

requirements, are oan ounrehable puide — to

conpressional intent

Yo “Other Requirements” and “Pake Such

Actions’

Section POUD(E)EZ)CA)'s bnplied preemplion

Deanngruncapre refers lo “standards ana other

requirements relating to the control of emuassions.”

Section 2O09(e)(2)(B)'s provision allowing states to

adopt and enforce authorized Cabhfornia standards

refer to “standards relating to control of emissions

from nonroad vehicles or engines ... and ... such other

actions as are referred to in subparagraph (A) of this

paragraph respecting such vehicles or engines if ()

4va

such standards and implementation and enforcement

are identical, for the period cone rocd. to” the

(Coadiforiia standard; authorized bry the

Administrator under subparagraph (A)

ARTBA states that the Janguage in section

209 3(2)(B) should not be read to narrow the scope ot

section 2OU(e)(2Z)(A) because the different langue

should be read to mirror the language an section

POU IZA) and was probably used to avoid

ambiguity reparding whether states other than

Cahforma could adopt “other requirements’ othe

than California requirements

“i

$ Locomotive Preemption

ARTBA also noted thisat state have long been

preempted from regulating “the 9 desipn the

construction and the maternal of every part of the

locomotive. AITBA says that section LODE)

lerpeas lates gioan area where states historically have

not exercised police power ARTBA claims that there

might have been some plans in Calhformia for

repulation of nonroad enpines, but that mo such

repulation had occurred by 1990. Instead, ARTBA

slates that, at least with regard to locomotives, there

has been a broad hostory of jtederal preemption

ARTBA beheve: thicat thre Presttiniplron avainst

preemption therefore should not apply in thi

brastialice

it. Comment:

South Coast states that ARTBA is seeking an

Huntly that is unavailable for any other source

Rhepvulation of the use and operation of stationary

SOUFCOCS and motor vehicles is undis puted hptate and

local repulation of the use and operation of monrond

eneines is essential to meet national ambient an

quality standards. South Coast states that if these

engines cannot be repulated adequately, other

sources will need to be even more stringently

revulated. ARTBA articulated no pohey reason why

nonroad sources should be treated differently than

other sources in this respect

South Coast claims that the primary purpose of

the preemption Provisions Is to protect

manufacturers from having to design different types

of vehicles for each state or local authority.

According to South Coast, the Supreme Court's

decision in EMA vo. South Coast confirmed that the

preemption provisions went to the design features of

the engine. See EMA v. South Coast, 641 Us. 246,

v4 S. Ct, 1756, 1761. Nothing in the Jepislative

history indicates that the purpose behind nonroad

preemption was different than that for motor vehicle

preemption. Indeed the legislative history indicates

that use and operation restrictions were not intended

to be preempted,

Gouth Coast notes that regulations on use and

operation are not standards ander section ZOY, and

that ARTBA does not argue that they are standards

South Coast further states that the use of the word

“requirements” im section 2OU%(e) does not dictate that

any regulation affecting Gmissions is necessarily

preempted According to South Coast, ARTBA

enores (he principle of statutory interpretation Christ

like words used ain different parts of the statute

should be treated as having the same meaning. The

words “require” and “requirements” in section 2O9(a)

and (e) refer to certifications, dspections and other

administrative requirements related to emission

levels, not to restrictions On use and operation In

1994, KPA read the word “requirements im section

44a

ZVO9(E) to apply to the same types of requirements as

in sections ZOO(a) and (c), and that imterpretation

was upheld as reasonable by the Court of Appead:

Moreover, South Coast notes that the language in

ection 2O9(e)(2)0B), allowing states other than

Cahtornia to promulgate standards and “take such

other actions as are referred to in subparagraph (A)

il “such standards and mnplementation and

ehforcement are identical.’ The SCOPe Ol section

2OU(E)(2)08) would need to be the same as that im

section ZOO(Ee(2Z)(A), as the state provisions must be

identical to California provisions and becauss

subparagraph (B) refers back directly to “actions as

are referred to in subparagraph (A) Theretore, the

reference to “standards and implementation and

ehforcement must have been ra reference back to the

“standards and other requirements in: uUbparagraph

(A\)

south Coast states that the absence of a clear

statement that) section VOU) does not preemyprt

restrictions On use and operation of nonroad engine:

can be explaimed by the fact that, unlike in 1967,

When section 2OU(a)(b>) and (ad) was added and

Conpress wanted to be exploit Chat the language in

ubsection (a) did not preempt use and operation

restrictions hy L990 it owas clear (hrough

admunistrative and jyudioial precedent, that use and

Operation restrictions were not preempted, so no

{ x pla il lanvuare Wa S NnNecessaFfy

South Coast also notes that the lepishative

history supports the interpretation that) use and

operational restrictions were not preempted. South

Coast notes the statements of Senators Baucus and

Chafee that the preemption does not apply to

operational restmctions. South Coast says that non

of the statements cited by ARPBA supports the

argument that use or Operational restrictions are

intended to be preempted. hus, the only lepushiative

history Utrsat speaks to this PpoImmt supports thie

interpretation that use and Operational restrmction:

are not preempted

South Coast also states that there as no long

history of preemption regarding regulation of use ot

locomotives, only locomotive design kor example,

state repulation on the use of whistles has been held

to not be preempted. EPA’s own regulations base the

scope of preemption on the effect of state and local

regulation on locomotive design. South Coast notes

EPA referred to “real and concrete eltects on the

design and manufacture of new locomotives and new

locomotive engines,” not trivial effects. KPA's

yustifeation for the broader preeniption oon

regulation of locomotives still tied such preemption

to effects on the manutacturer, because “state

requirements on railroads are much more likely to

effect changes in how manufacturers and

remanulacturers design new Jocomotives and new

locomotive engines than would similar requirements

on end users otf other mobile sources. — South Coast

states that vehacle and ecnyine design is unatbected by

use regulations

South Coast argues that preemption should be

narrowly construed because the exeremse of local

police power serves the overriding purpose of the

CAA, to clean the air, citing EPA's 1994 rule and

Allway Tanti vu. City of Neto York, 8310 FF. Supp. 1120

tS 1.N. ¥ ->, affa 466 F. 2d 624 (2d Cir N72). South

Coast also notes that even if section 2O9 can be seen

In isolation as expressing ao principle am favor of

national repulation, use and operational controls are

doa

Phe Calhtornia Air Resources Board (CARB)

noted that more than ten years after EPA's

determination that state and local nonroad use

restrictions are not within the scope of preemption

Wwnder section 2U(e), and the 4. Circuit’s

affirmation in HMA v. BPA, ARTBA 1s requesting

reconsideration of that determination, claiming that

all nonroad engines, including those in lawnmowers

and string trimmers, be treated similarly — to

locomotive which CARB claims 1s not Supported by

Lia { (iT log

CARB noted the DC. Cireuit’s conclusion that

MPA was reasonable in determining that the use of

the word “requirements” should have the same

meaning as similar uses of the word in section 209,

which refer to enforcement provisions that cannot be

used as conditions precedent to sale, registration oO

tithing of a vehicle. The Court further found plausible

KPA Interpretation that section 2138(d), read with

section Y2O9(d), limited the scope OL preemption for

nonroad engines as section 20C9(d) on its own Iimits

the scope of preemption for motor vehicles. CARB

also noted the Court’s favorable language regarding

WVA rehance on the contemporaneous statements of

Senators Baucus and Chatee regarding the continued

ability of the states to reyulate the use of nonroad

vehicle and KPA’s view that the inherently local

nature of use restrmctions would conclude against

requiring every other state to follow California’s lead

on this issue

CARB states that while the Court was not

entirely satished with EPA’: Interpretation = of

ections 2ZOO(e) and 218(d), the Court found HPA’s

explanation much more persuasive that MMA's

brite Ppopre tation

DUv.A

CARB notes that, regarding the presumption

against preemption, the Supreme Court has

recognized that preemption Is a question of

Congressional intent and that federal law will only

preempt state law when Congress has expressly so

declared or when it may reasonably be inferred by

Congress's actions to totally occupy the field or when

actual conflict would exist between state and federal

law. According to CARB, courts have held that where

exercise of the local police power serves the purpose

of the federal Act, the preemptive effect of that Act

should be narrowly construed. CARB states that the

preemption issue here is narrow: whether state and

local in-use operational controls, which have

historically been within the purview of local

government, are preempted. Prior to 1990, there was

no history of federal preemption in this area. Most

districts in California have long required operators of

nonroad internal combustion engines to have permits

for portable engines Permitting requirements

typically include, among other’ things, in-use

operational controls

CARB states that AR'TBA is trying to reargue an

issue that was already decided in EMA vu. EPA, 1.c.

the reasonableness of IKPA’s defining new nonroad

engine consistently with the definition of new motor

vehicle in section 216 of the Act. CARB states that

the DC. Circuit already rejected ARTBA’s claim that

“new nonroad engine” must refer to all engines built

alter the 1990 enactment of the Clean Air Act

Amendments.

CARB claims that a more plausible reading of

sections 2O9(e) and 213(d) is that EPA must be

copnizant when adopting standards under section

2138(a) that it not adopt in-use operational control

pila

requirements, which Congress kept in the hands of

states pursuant to section 209(d). CARB agrees that

Congress could not have intended California to

establish in-use operational controls for the nation.

Indeed, CARB has not generally even established

such requirements in Califormia, because such

requirements are best handled locally to address the

specilic requirements of the different air basins

within the state.

CARB states that the 1998 locomotive rule

should have no bearing on EPA's interpretation

regarding in-use operational controls. In arguing

that KPA has fashioned a broader preemption for

locomotives than for other nonroad engines, ARTBA

tries to bootstrap the unique regulatory Iistory of

railroads to all nonroad engines. But even ARTBA

acknowledges that only locomotives have a _ long

history of preemption and that Congress

distinguished regulation of new locomotives from

other nonroad engines under the Act. [PA’s

locomotive rule considered and reasonably explained

the special circumstances for providing a_ broader

precianption for locomotives compared to other

nonroad engines, including the special relationship

between railroads and engine manufacturers, the

periodic remanufacturing and long total hfe = of

locomotive enyines, the environmental benefits of

federal regulation, and the history federal

preemption of railroads and significant potential

economic burdens that could be placed on the

railroad industry by state and local regulation of

locomotive engines.

OPEIT commented that it supported ARTBA’s

petition calling on EPA to clarify the pre-emption of

state and local requirements that impose in-use and

OZA

operational controls on nonroad engines. OPEI states

that there is currently a_ proliferation of illegal

emission-related use bans and purchase restrictions

apphcable to blowers and other outdoor power

equipment. OPET states that EPA should finalize

regulations stating that EPA wall not approve state

implementation plans restricting the sale or use of

KkPA-certified products. OPEL notes that section

200(e) refers to “any standard or other requirement.”

It notes that technology-forcing requirements

imposed on the purchaser or user of equipment is a

preempted “standard,” citing to HMA v. South Coast,

and providing the following quote from the case: “a

standard is a standard even when not enforced

through a manufacturer-directed regulation.” OPE]

also notes the court’s finding that if one state can

enact “such rules” so can any other, “and the end

result would undo Congress’s carefully calibrated

regulatory scheme.” OPET also discussed the opinion

of the court in EMA v. Huston, which rejected

Texas's attempt to regulate use of certain nonroad

engines

In its comments following the NPRM, ARTBA

states that the language of section 209(e), referring

to preemption of “any [state or local] standard or

other requirement relating to the control of

emissions” from new construction equipment under

176 horsepower, indicated expansive preemption.

ARTBA notes the reference to the implied

preemption of state and local “standards and other

requirements” in section 209(e)(2). ARTBA states

that in-use controls clearly fall within this language.

ARTBA distinguishes the language from section

209(a-d), which references state and local standards

and various specified requirements, and includes an

express savings clause that retains state authority

over the use, operation and movement of motor

vehicles. ARTBA notes the lack of an express savings

clause for state authority over in-use nonroad

vehicles. ARTBA notes that only section 209(e)

apples to nonroad engines and vehicles, and that the

rest of section 209 is inapposite. ARTBA claims the

language of the statute is plain but states that to the

extent legislative history 1s considered, the Hlouse

Report is the appropriate history.

ARTBA states that the court upheld HPA’s

interpretive rule primarily because of IMPA’s

definition of “new,” section 209(e) inconsistent use of

“standards or other requirement,” and EPA's

plausible interpretation of section 213(d), in the

absence of other satisfactory interpretation, to read

section 209(d) to include regulations on the use of

nonroad engines.

ARTBA notes that. while EPA defined “new” to

mean “showroom new,” for the purposes of most

nonroad engines, harmonizing that definition with

the definition of “new” for motor vehicles, it defined

“new” differently for locomotives. AR’TBA claims that

“new” for locomotives extends back to 1972 and out

to 1.33 times an engine's hfe.** [I*N21]

ARTBA states that the HMA panel thought it

significant, and supportive of a narrow reading of

requirements, that section 209(e)(2)(1B) does not

2s To avoid confusion, EPA notes that this is not the

definition of “new” for locomotives. That definition can be found

at 40 CFR § 92.2. The reference by ARTBA is to the preemption

repulation at 40 CFR 85.1603¢c), which determines that certain

standards on in-use locomotives will be preempted as standards

relating to the control of emissions from new locomotives. That

is a different issue from the definition of new locomotive

authorize states other than California to promulgate

“other requirements.” ARTBA states that “take such

other action? is clearly a double for “adopt...other

requirements.” ARTBA also notes the HMA court’s

acceptance of EPA’s argument that the difference

between “standards and implementation = and

enforcement” in section 209(e)(2)(13)G) and

“standards and other requirements” in section

209(e)(2)(A) allows a narrow interpretation of “other

requirements.” ARTBA, however, states that this

language does not limit section 209(e)(1)’s scope and

that the implementation-and-enforcement language

appears section 209(e)(2)(B)Q)-Gi), which concerns

leadtime restrictions on states’ adopting “standards”

not other requirements, but does not limit section

209(e)’s broader preemption of other requirements.

ARTBA also notes that the language of the Bond

amendment (Pub.L. 108199, section 428) tracks the

“standards or other requirements” language, not

“standards and implementation and enforcement”

language.

ARTBA notes the court's deference to HPA’s

Interpretation that section 2138(d)’s” reference to

section 209 incorporates section 209(d)’s savings

clause into nonroad preemption. ARTBA states that

the court failed to consider that, by its terms, section

218(d) apphes only to EPA’s new vehicle standards

under section 213(a). Thus, section 209(d) could save

states’ authority to impose in-use restrictions on new

nonroad vehicles, which makes no sense. ‘his shows

that MPA’s interpretation is even more

unsatisfactory than held in HMA v. HPA. Because,

according to ARTBA, the court held that EPA’s

Interpretation Can prevail because if neither party

offers an acceptable interpretation, ARTBA states

95a

that the legislative history explains section 2138(d)’s

connection to section 2O9(e). According to AR'TBA,

section 213(d) linked new vehicles “subject to

regulation under this Act” but not then-existing

Q.c. unregulated) nonroad vehicles to section

209(e)’s preemption and because it did not amend

section Z13(d), the Conference Committee did not

change section 213(d)’s simple meaning. According to

ARTBA, any ambiguity in the section ZO9(e)-213(a)

link concerns post-enactment, pre-regulation

vehicles, but that minor temporal ambiguity cannot

empower EPA to re-write the unambiguous aspects

of the lnk (namely that CAA-regulated nonroad

vehicles are subject to section 209(e)’s preemption).

ARTBA also states that nonroad vehicles include the

vehicle’s fuel system.

ARTBA also claims that EPA allows California to

mandate a retrofit of a nonroad engine immediately

after the engine is no longer new, which [PA

recognized conflicted with Congressional intent, and

should therefore be rejected. Also, according to

ARTBA, the Supreme Court’s decision in its fleet

litigation, because it is not limited to manufacturers,

includes those imposed on in-use vehicles. ARTBA

notes that the House conferees understood that

section 209(e) reached the operation of nonroad

vehicles, citing to Rep. Dingell’s remark that “we

balanced the need to control emissions from new

locomotives ayaimst our belief that State efforts to

regulate locomotive emissions or operations would

impose an unconstitutional burden on interstate

commerce.” According to ARTBA, Congress long ago

abrogated the Allway TVaxt decision. The in-use

retrofit “requirements” that ARTBA claims are

preempted by section 209(c) unquestionably fall

56a

within the “any...other requirements” preempted by

section 2Z09(e)

ARTBA also noted the decision of the court in

IMA v. Huston, 190 F. Supp. 922 (W.D. Tex. 2001),

vacated as moot, in which the court concluded that

“the legislative history and plain languave of section

20O4%(e) are clearly inconsistent with IPA’s offered

interpretation.” ARTBA also noted IPA’s response to

the decision of the court, which [SPA referred to as an

“inappropriate collateral attack on [lePA Is]

regulations.” 66 Fed. Reg. 57,223 (2001)

AAR commented that it believes that, in’ the

context of MMA v. EPA, EPA can have broader

preemption rules for locomotives than it does for

other nonroad engines. AAR notes that the court in

HMA v. EBHPA upheld EPA’s interpretation that

“requirements” refers to certification, inspection and

approval requirements and does not encompass use

restrictions. AAR states that IPA can reach different

conclusions for different engines as to what

constitutes an engine standard or a use restriction.

AAR states that what is preempted under section

209 depends on factual circumstances and the

determination needs to be made on a case-by-case

basis. “The broad regulatory langvuayve on preemption

of state regulation of locomotives 1s consistent with

EMA vo. EPA, Furthermore, the fact that different

language is used to describe preemption of state

regulation of locomotives, as opposed to other

nonroad engines, 18 appropriate because of the

different standards applicable to locomotives. AAK

states that indeed, when issuing the current

preemption regulation for locomotives, KPA

explained that ‘because of compelling factual and

oy are |

policy considerations rclating to regulation 9 of

locomotives as compared to regulation of motor

the

implementation of these |[preemption} principles

vehicles and other nonroad vehicles and engines,

would be expected to differ to a significant degree.’

MPA pointed to the different regulatory requirements

for locomotives, the unusual marketplace for

locomotives, and the railroads’ unique operating

environment as the basis for the preemption rule.”

AAR noted EPA’s discussion of differences such

as: 1) the remanufacturing requirements for

locomotives, and the fact that such remanufactured

engines would be considered new engines under the

regulations, which has an effect on preemption of

retrohit requirements because a retrolit requirement

that would have little or no cffect on the ongpinal

manufacture of a locomotive could have a significant

effect on the remanufacture of that locomotive; 2) the

small marketplace for locomotives, with the vast

majority of new locomotive sales taking place

between seven Class 1] railroads and two

manufacturers, which results inp manufacturers

needing to be much more responsive to changes in

design requested by customers, which means that

state requirements on railroads are much more likely

to affect the design of new locomotives that) would

similar requirements on end users of other mobile

sources; 3) the interstate nature of railroad

operations, which provides compelling policy reasons

locomotive emissions, as indicated by the lepislative

history of section 2O9(e), which singles out state

efforts te regulate locomotive Cmissions as imposing

burdens on interstate commerce, but not making

similar statements regarding state regulation of any

Sd «

other category of nonroad vehicles. AAR also notes

KPA’s mention of possible unduc burdens on

interstate Commerce under the Commerce Clause of

the Constitution, and AAK notes a recent federal

court decision holding that the ICC Termination Act

preempted state and local emissions regulations on

locomotives. AAI v. South Coast AQMD, No. O06

01416 (C.D. Cal April 30, 2007)

wi. Lrseussron

l. Overview

«PA continues to believe that Conyress did not

intend to preempt state and Jocal regulation of use

and operation of nonroad engines under section

209(e) of the CAA. ARTBA points to no language in

the statute or in the legislative history showing any

specific intent to preempt state and local regulation

of use and operation of nonroad engines. Whiie the

statutory language of the CAA is not altogetber cleat

on the issue, the textual arguments rehed upon by

MPA in its prior rulemaking continue to be more

persuasive than ARTBA’s) arguments, and the

legislative history contains clear language indicating

a desire to allow state and localities to continue to

regulate use and operation of nonroad engines.

Because section 2O09(e) as it was promulyated was

very different from the language in either the Senate

or the House of Representatives, and there is little

levislative history specific to this provision in the

final conference report, there 1s not much legislative

history of this provision. But the statements of two

Senators during the final debate on the bill indicate

clearly their understanding that states and locahtie;

were not preempted from regulating the use and

operation of nonroad engines. Sen. Baucus, in hi:

ova

explanation of the final bill, styled as a Clean Air

Conference Report, stated:

States also fully retain existing authority to

regulate emissions from all types of existing

or in-use nonroad engines or vehicles” by

specifying fuel quality specifications,

operational modes or characteristics of

measures that limit the use of nonroad

enpines or equipment.

136 Cong. Rec. 8516976 (October 27, 1990)

Similarly, Sen. Chatee stated:

States can continue to require existing and

in-use nonroad engines to reduce emissions

by setting fuel requirements, operational

restrictions or limits on the use of such

equipment

136 Cong. Rec. 517237 (October 26, 1990)

Indeed, thouph the statutory languape in the

Ilouse of Representatives’ bill was not adopted, it is

worth noting that even the House of Representatives’

bill indicated no intention to preempt states and

localities from regulating the use and operation of

nonroad engvines and vehicle:

section 209 of the Act is amended to provide

that no State or political subdivision shall

adopt or enforce standards relating to the

control of emissions from new nonroad

vehicles subject to regulation under this Act.

This preemption does not apply to existing

nonroad vehicles or engines.

Hi.R. Rep. No. 490, 101st. Cong. at 310 (1990)

OUa

Indeed, piven that this language echoes the

language of section 2O9{a), which clearly did not

preempt use restrictions on existing motor vehicles,“4

[IEN22] the language indicates no intent to preempt

such use restrictions

This intention is reasonable, given the locally

based nature of use and operational restrictions. A:

the court in HMA vo. EPA noted, “the KPA maintains

that because in-use restrictions are inherently local

In character, in that their appropriateness depends

on local conditions, it would not make sense for

Congress to require all states?’ to follow Cahfornia’:

lead on this issue. This, too, tends to support the

reasonableness of the IcPA’s interpretation.” &% F.2d

at 1094 n. 58

Congress made this clear in 1967, with respect to

motor vehicles. “Specific language indicating the

committee's position on the mghts of the States to

control the movement, operation and use of hceensed

or repistered vehicles is included. This language 1s of

particular importance. While there has been a vreat

deal of concern expressed regarding control of new

vehicles httle attention has been paid to control of

used vehicles, either their emissions or. the

use... These are areas in which the State and local

rovernment can be most clfective.” S. Rep. No. 408

at 34

section ZOO d), protecting the rights of state to

repulate use and operation of motor vehicles, was added

specifically Lo ensure that the language of section 2ZOU(a) wa:

not interpreted to apply to use restmetions, which Congre

understood to be best left to state and localities. See S. Kep. No

th Ps nak :

103,90 Cony. 1 Sess. at 34 (1967), quoted above at pp. 2-3

Ola

As this language indicates, states and localities

have traditionally not been preempted = from

regulating the use and operation of mobile sources

ARTBA produces no evidence that, for the vast

majority of mobile sources, there is any history of

preemption of such regulation. On the contrary, as

CARB notes, local districts long regulated the use of

nonroad engines, particularly portable engines.

Indeed, with regard to motor vehicles, the Clean Au

Act actually encourages KPA to provide information

to help state and local entities regulate their use for

the purpose of reducing emissions. See Clean Air Act

section 1O8(f), 42 U.S.C. § 7408(f).

ARTBA’s sole evidence of prior history of state

and local preemption comes from the specific

circumstances of locomotives, one of numerous

categories of nonroad engines. There is little question

that there is a long history of preemption of state

regulation of locomotive engine design, construction

and material, see Napier v. Atlantic Coast Line, 272

U.S. 605 (1926).229 [FF N23] IPA and Congress have

indeed noted specific concerns regarding state and

local regulation of locomotives and IPA has treated

state and local regulation of locomotives as a special

case. However, the fact that one category of nonroad

engines, representing a very small percentape of the

population of nonroad engines, has been traditionally

protected from state and local regulation is no reason

to impart such protection on the vast number of

nonroad engines that have not traditionally been

subject to such protection

Though even with regard to locomotives, some

commenters argue that there is no long history of preemption of

state regulation of use and operation

62a

2. Statutory Language and Legislative History

a. Definition of “new

ARTBA’s arguments regarding the meaning of

section 209(e) and section 213(d) are not convincing.

Mirst, ARTBA’s argument rehes on a definition of

“new nonroad engine” that is at odds with the

structure of title Il of the Act and was rejected by

KPA in its initial rule: a decision that was upheld by

the court in HMA v. HPA, 88 IT. 8d at 1084-1087.

When EPA defined the term “new nonroad

engine’ in its initial nonroad engine rule in 1994,

KPA incorporated the statutory definition of “new

motor vehicle” and “new motor vehicle engine” in

section 216 of the Act, which is the “showroom new”

that ARTBA now criticizes. IXPA’s definition was

expheitly challenged in the MMA v. EPA case and

was explicitly upheld. Jd.

ARTBA does not explain its arguments as to why

MPA’s definition of “new” is contrary to the statute or

unreasonable, or why its definition would make more

sense in the context of Title Il. ARTTBA does mention

that EPA used a different definition of “new” for

locomotives, but does not explain why _ that

difference, which is discussed elsewhere and is based

on the specific circumstances of remanufactured

locomotives, rendered EPA’s reasoned definition of

“new for all other nonroad engines unreasonable.

ARTBA provides no argument that KPA’

definition of “new” as it was promulgated for all

other nonroad engines, based on the definition of

“new motor vehicle,” was unreasonable or that I PA’s

decision to include remanufactured locomotive

engines as “new” engines until they are reintroduced

into commerce, based on the particular

O3a

remanufacturing practices in the — locomotive

industry, was unreasonable. Nor is it unreasonable

for MPA to take into account separate circumstances

in defining “new” differently for locomotives than for

other nonroad cnyines, cspecially considering that

the term “new locomotive” is used distinctly from

other new nonroad engines in both sections 209 and

213

Indeed, ait is ARTBA’s proffered definition of

“new” that would be inconsistent with the intent of

the statute. As discussed below, section 213d) of the

Act incorporates the enforcement and comphance

provisions of ‘Title I] into the standards for nonroad

engines. ‘hese provisions were written initially in

the context of standards on new motor vehicles and

new motor vehicle engines, defined as “showroom

new. The comphance and cnforcement provisions

are venerally geared towards manufacturers,

contermmg on manufacturer requirements to have

their engines certified prior to introduction into

commerce, tested at the assembly line, and subjected

to warranty. [Even the in-use testing and recall

requirements are geared towards the manufacturer,

not the user. Thus, the general complhance and

enforcement regime in title Tl, which was statutorily

expanded to apply to IXPA’s emission standards for

nonroad engines, is geared towards censuring

comphance by manufacturers, generally at, or pnor

to, the point of sale. The few enforcement provisions

vearcd towards users are not restricted to “new”

engines or vehicles, and deal more with tampering

with manufacturer controls, rather than requiring

specific compliance actions by owners and operators

Thus, the definition of “new” im tithe Il, which relates

to introduction into commerce rather than the date

Oda

an engine was built, is consistent with the

comphance provisions in title IL.

ARTBA’s proffered definition of “new,” which is

based on the definition of “new” in title I of the Act

and makes all covered engines “new’ — from

installation to disposal, is more suitable for a regime

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