United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2009 Decided December 11, 2009 

No. 08-1381 

AMERICAN ROAD & TRANSPORTATION BUILDERS 

ASSOCIATION, 

PETITIONER

v. 

ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ 

JACKSON, IN HER OFFICIAL CAPACITY, 

RESPONDENTS

AND

ASSOCIATION OF AMERICAN RAILROADS, ET AL., 

INTERVENORS

On Petition for Review of an Order 

of the Environmental Protection Agency 

Lawrence J. Joseph argued the cause for petitioner. With 

him on the brief was Nick Goldstein. 

David Gunter, Attorney, U.S. Department of Justice, 

argued the cause for respondent. With him on the brief were 

John C. Cruden, Acting Assistant Attorney General, and 
2

Michael Horowitz, Attorney, U.S. Environmental Protection 

Agency. 

 Kathleen A. Kenealy, Deputy Attorney General, Attorney 

General’s Office for the State of California, argued the cause 

for intervenors California Air Resources Board, et al. in 

support of respondent. With her on the brief were Edmund G. 

Brown, Jr., Attorney General, Mary E. Hackenbracht, Senior 

Assistant Attorney General, Kurt R. Wiese, and Barbara 

Baird. Aaron S. Colangelo entered an appearance. 

Louis P. Warchot and Michael J. Rush were on the brief 

for intervenor Association of American Railroads in support 

of respondent. 

Vickie L. Patton and Sean H. Donahue were on the brief 

for amici curiae American Lung Association, et al. in support 

of respondent. 

Before: GARLAND and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: The American Road 

and Transportation Builders Association is a trade 

organization representing the “transportation construction 

industry”—companies that build roads, public transit systems, 

airports and the like. In 2002 ARTBA, as the group calls 

itself, petitioned the U.S. Environmental Protection Agency to 

amend two regulations implementing § 209(e) of the Clean 

Air Act (codified at 42 U.S.C. § 7543(e)). EPA had originally 

promulgated the provisions at issue—40 C.F.R. § 85.1603 and 

40 C.F.R. pt. 89, subpt. A, App. A—in 1994, 59 Fed. Reg. 

36,969, 36,986 (July 20, 1994); 59 Fed. Reg. 31,306, 31,339 

(June 17, 1994), and then readopted them in 1997, 62 Fed. 
3

Reg. 67,733, 67,736 (December 30, 1997). After a bit of 

litigation over the agency’s failure to act on ARTBA’s 

petition, EPA formally opened it to public comment in 2007, 

72 Fed. Reg. 28,098, 28,209-10 (May 18, 2007), then rejected 

it in 2008, 73 Fed. Reg. 59,034, 59,130 (October 8, 2008). 

Shortly thereafter, ARTBA sought review in this court. We 

now dismiss that suit for lack of jurisdiction, on the grounds 

that National Mining Association v. U.S. Department of the 

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

ARTBA’s petition to EPA as a challenge to the regulations it 

sought revised, and that judicial review of such a challenge is 

time-barred under Clean Air Act § 307(b)(1), 42 U.S.C. 

 § 7607(b)(1). 

* * * 

 Clean Air Act § 209(e) prohibits states from imposing 

certain emissions-related regulations on various categories of 

engines and vehicles. ARTBA takes the position that EPA’s 

rules interpreting § 209(e) have the effect of allowing states to 

adopt precisely the kinds of regulations that the statute 

forbids—partly because the rules are insufficiently 

comprehensive, and partly because some of their content is 

inconsistent with the statutory language. So, for example, 

ARTBA asked EPA to amend one of its regulations, 40 C.F.R. 

§ 85.1603, to make clear that among the laws preempted are 

“fleet average standards,” which prescribe emissions limits for 

an operator’s suite of vehicles in the aggregate. See Engine 

Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 

246, 249-50 (2004). The request that EPA revise 40 C.F.R. 

pt. 89, subpt. A, App. A, by contrast, reflected ARTBA’s view 

that that provision affirmatively deems permissible state 

regulations that the statute, properly construed, prohibits. In 

response to ARTBA’s petition, EPA offered a lengthy 

analysis disputing that further specificity was warranted where 
4

ARTBA sought it, and defending the interpretations that 

ARTBA argued were wrong. 

In opposition to the present action, the agency suggests 

two reasons why our jurisdiction does not extend to ARTBA’s 

suit. One is the time-bar issue mentioned above; the other is a 

contention that ARTBA cannot establish constitutional 

standing. 

 Article III of the Constitution requires ARTBA, of 

course, to allege an injury that is fairly traceable to the 

agency’s conduct and redressable by this court. See Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In EPA’s 

view, ARTBA has failed to do so with respect to each of the 

numerous putative harms it identifies, including among others 

injuries arising from state air quality remediation plans 

requiring EPA’s approval. See Clean Air Act 

§ 110(a)(2)(E)(i), 42 U.S.C. § 7410(a)(2)(E)(i). This court’s 

decision in Louisiana Environmental Action Network v. 

Browner, 87 F.3d 1379 (D.C. Cir. 1996) (“LEAN”), the 

government claims, “squarely defeats ARTBA’s standing 

argument” to the extent it hinges on injury attributable to “any 

state regulation that EPA must approve.” Respondent’s Br. at 

29. 

The government drastically overreads LEAN. There 

several petitioners challenged an EPA rule establishing 

procedures for deciding whether to approve state 

implementation plans under the Clean Air Act. 87 F.3d at 

1381. One complaint was that the rules might allow EPA to 

approve a state regulation, and enforce it as a federal one, 

even though it was more stringent than any regulation the 

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

party seeking relief, however, “identified no state—never 

mind a state in which one of the [relevant] petitioners 

operates—that has adopted any more stringent rule which is or 
5

is about to be federalized by the EPA.” Id. at 1384. 

Regarding the harms alleged as “hypothetical,” we found a 

want of standing. Id. 

Thus LEAN is simply an application of the conventional 

understanding that highly speculative concerns do not satisfy 

Article III’s injury-in-fact requirement; it is not a holding that 

the injuries threatened by EPA rules governing future 

assessment of proposed state implementation plans are per se 

unduly remote. The canonical “actual or imminent” threat of 

injury remains, of course, perfectly sufficient for standing 

purposes. See Lujan, 504 U.S. at 560; Summers v. Earth 

Island Inst., 129 S.Ct. 1142, 1149 (2009). 

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

state regulatory regimes that, it alleges, currently subject its 

members to burdensome laws that are not permitted under the 

Clean Air Act, and that either have been approved by EPA or 

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

If the federal rules ARTBA sought to have revised really do 

allow such state regulations, then the harms ARTBA members 

are currently suffering as a result of already-approved state 

plans—and would plausibly suffer as a result of future EPA 

approvals—are sufficiently attributable to those federal rules 

to satisfy the “fairly traceable” prong of the standing inquiry. 

See Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 

426, 438-43 (D.C. Cir. 1998) (en banc). And in the event that 

we agreed with ARTBA’s substantive views, we could order 

EPA to reconsider its decision to stand pat on its existing 

rules. This is the remedy we typically afford meritorious 

petitions seeking review of agency decisions not to initiate 

rulemakings, and we have obviously never regarded such 

relief too speculative to satisfy constitutional standing 

requirements. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 

534-35 (2007); American Horse Protection Ass’n v. Lyng, 
6

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

ARTBA’s problem. 

* * * 

What dooms the organization’s petition in this forum 

instead is subject matter jurisdiction. The section of the Clean 

Air Act that simultaneously authorizes and limits judicial 

review of EPA activity provides in relevant part: 

A petition for review of . . . any . . . nationally 

applicable regulations promulgated, or final action taken, 

by the Administrator under this chapter may be filed only 

in the United States Court of Appeals for the District of 

Columbia. . . . Any petition for review under this 

subsection shall be filed within sixty days from the date 

notice of such promulgation . . . or action appears in the 

Federal Register, except that if such petition is based 

solely on grounds arising after such sixtieth day, then any 

petition for review under this subsection shall be filed 

within sixty days after such grounds arise. 

Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1). ARTBA 

filed suit in this court within 60 days of EPA’s decision 

rejecting the organization’s petition for rules amendments. 

The question is whether that agency action opened a new 

filing window—or if instead we are obliged to treat a petition 

to revise regulations as a challenge to their promulgation, with 

the result that the relevant chronological analysis runs from 

that earlier date. 

 The general rule is that it is a perfectly valid “method of 

obtaining judicial review of agency regulations once the 

limitations period has run . . . to petition the agency for 

amendment or rescission of the regulations and then to appeal 

the agency’s decision.” NLRB Union v. FLRA, 834 F.2d 191, 
7

196 (D.C. Cir. 1987). One twist is that not all types of 

petitions for rulemakings are treated equally. If the request 

for new rules is predicated on an alleged procedural defect in 

the promulgation of the existing rules, then we view the 

petition as a direct challenge to the original enactment—

which will be time-barred if it falls outside the period in 

which judicial review of the promulgation is permitted. Id.; 

Natural Resources Defense Council v. NRC, 666 F.2d 595, 

602 (D.C. Cir. 1981). On the other hand, agency denial of a 

petition for a new rulemaking which complains of substantive

infirmities in existing rules is, for the most part, judicially 

reviewable irrespective of time limits dating from the rules’ 

enactment. Professional Drivers Council v. Bureau of Motor 

Carrier Safety, 706 F.2d 1216, 1217-18, n.2 (D.C. Cir. 1983) 

(“This court has scrutinized regulations immune from direct 

review by reviewing the denial of a subsequent rulemaking 

petition which challenged the regulation on demonstrable 

grounds of substantive invalidity.”) (emphasis in original, 

internal quotation marks omitted); NLRB Union, 834 F.2d at 

196 (“[A] petitioner’s contention that a regulation should be 

amended or rescinded because it conflicts with the statute

from which its authority derives is reviewable outside of a 

statutory limitations period.”) (emphasis in original);

Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 

1958). 

 We have subjected that general rule, however, to an 

exception. National Mining Association identified a 

circumstance in which an agency’s denial of a revisionseeking petition does not allow review of alleged substantive 

defects in the original rule, even under the deferential 

standards applicable to review of such denials, outside the 

statutory limitations period running from the rules’ original 

promulgation: the case in which Congress has “specifically 

address[ed] the consequences of failure to bring a challenge 

within the statutory period.” 70 F.3d at 1350. We 
8

characterized the statutes at issue in NLRB Union, Functional 

Music, and similar cases as “not explicitly say[ing]” that 

“Congress meant totally to foreclose review after the statutory 

period.” Id. If Congress “directly focused on the issue,” 

however, a different outcome results: judicial review of a 

petition to repeal or revise rules is time-barred, except to the 

extent that the statute allows review based on later-arising 

grounds. Id. 

 Specifically, National Mining Association held that the 

following language—in that case from the Surface Mining 

Control and Reclamation Act—amounted to an explicit 

decision to preclude review of repeal- or revision-seeking 

petitions filed outside the statutory deadlines: 

A petition for review of any action subject to judicial 

review under this subsection shall be filed in the 

appropriate Court within sixty days from the date of such 

action, or after such date if the petition is based solely on 

grounds arising after the sixtieth day. 

Id. (emphasis omitted). We noted, moreover, that “Congress 

has adopted similar limitations on judicial review in other 

environmental statutes,” citing among others our own 

limitation here, Clean Air Act § 307(b)(1). Id. at n.2. 

National Mining did not, so far as we can discern, suggest that 

such language implied any sort of limitation on the recognized 

ability of a party against whom a regulation is enforced to 

contest its validity in the enforcement context. See, e.g., 

NLRB Union, 834 F.2d at 195-96. 

 We cannot make out any material distinction—at any rate 

any distinction helpful to petitioner—between the statutory 

language at issue in National Mining Association and the 

statutory language at issue here. Section § 307(b)(1) in fact 

imposes one additional constraint on petitions brought outside 
9

the original 60-day window based on after-arising grounds: 

they must be filed within 60 days of the new event, rather than 

any time after it. National Mining Association therefore 

compels the conclusion that ARTBA’s 2008 petition for 

judicial review is time-barred for falling outside the 60-day 

period that § 307(b)(1) provided for court challenges to the 

1997 re-promulgation of 40 C.F.R. § 85.1603 and 40 C.F.R. 

pt. 89, subpt. A, App. A—at least insofar as the petition raises 

points that could have been brought to our attention in 1997. 

See 70 F.3d at 1350, 1352. 

ARTBA offers two reasons why, in its view, we have 

jurisdiction in any event. First is the argument that the 

limitations period in § 307(b)(1) can run only against ripe 

challenges. Since ARTBA had no ripe claim when EPA repromulgated the rules, the suggestion goes, the organization is 

permitted to attack them now. This line of reasoning 

implicates two procedural questions: when freshly ripened 

claims may be raised under § 307(b)(1); and where they 

should be filed. 

 We answered the first of these in LEAN. While we 

agreed with petitioner that § 307(b)(1)’s provision for judicial 

review after the initial filing period for suits based on newly 

arising grounds encompassed the occurrence of an event that 

ripens a claim, 87 F.3d at 1385, we noted the section’s explicit 

requirement that a petition predicated on any such new event 

be filed within 60 days of the event. Id. 

The question where, precisely, a party is supposed to file 

such a claim matters, among other reasons, because it 

determines which filing of ARTBA’s is the one that must 

have come within 60 days of some after-arising ground—the 

2002 petition to EPA, or the 2008 petition to this court. The 

answer is less straightforward than it may appear. Our cases 

on the matter start with Oljato Chapter of the Navajo Tribe v. 
10

Train, 515 F.2d 654, 666 (D.C. Cir. 1975), where we said that 

it was “within our inherent powers to enforce our interest in 

informed decision-making by requiring presentation to the 

Administrator of any new information thought to justify 

revision of a standard . . . reviewable under Section 307.” Of 

course the ripening of a petitioner’s claim is hardly the sort of 

novelty that seems to require special agency reaction. Later 

we raised the ante by characterizing this rule as jurisdictional, 

The Group Against Smog and Pollution, Inc. v. EPA, 665 F.2d 

1284, 1290 n.45 (D.C. Cir. 1981), see also Natural Resources 

Defense Council, Inc. v. Thomas, 845 F.2d 1088, 1091-92 

(D.C. Cir. 1988), but those cases, like Oljato, involved claims 

that new information called for a rule change—not that a 

potential claim had become newly justiciable. 

As it happens, ARTBA cites no event (other than EPA’s 

decision rejecting its petition, which National Mining 

Association says doesn’t count) that would bring either filing 

within any newly opened 60-day window. ARTBA makes 

some reference, albeit in the context of discussing a different 

matter, to a 2001 Texas law imposing diesel emission limits 

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

“imposes additional costs and regulatory burdens on 

ARTBA’s members,” Petitioner’s Br. at 26—but that law took 

effect well over 60 days before the organization’s July 12, 

2002 petition to EPA. Another event that ARTBA sees as 

significant is EPA’s 1998 rulemaking concerning the scope of 

federal preemption of state regulations of new locomotive 

engines, which was also obviously too remote in time. 

Finally, ARTBA now seeks to make hay of a 2004 Supreme 

Court decision and a 2004 statutory amendment—neither of 

which can render its 2002 petition or its 2008 appeal “filed 

within sixty days after such grounds arise.” See § 307(b)(1). 

Because we find that none of these events satisfies the 60-day 

criterion in § 307(b)(1) for challenges based on after-arising 

grounds, we need not determine where ARTBA should have 
11

filed in order to invoke § 307(b)(1)’s provision for afterarising grounds, nor whether ARTBA’s petition met the 

additional requirement that it be “based solely” on those 

grounds. 

 ARTBA next argues that an EPA rulemaking in 2007-08 

effectively reopened the regulations now at issue to judicial 

review. See National Ass’n of Reversionary Prop. Owners v. 

Surface Transp. Bd., 158 F.3d 135, 141 (D.C. Cir. 1998) 

(“NARPO”) (describing the “reopening doctrine”). It does not 

rest on the fact that EPA responded to its arguments. We 

rarely if ever find such a response sufficient; if a party were 

allowed to “goad an agency into a reply, and then sue on the 

grounds that the agency . . . re-opened the issue,” Am. Iron & 

Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989), the 

agency’s thorough answer would put it at risk of “reopening,” 

while a taciturn response would put it at risk of being faulted 

for acting without reasoned decisionmaking. See National 

Min. Ass’n, 70 F.3d at 1351. Rather, ARTBA contends that in 

the course of the separate rulemaking the agency conducted 

simultaneously with the publication and rejection of 

ARTBA’s petition, EPA effectively reconsidered the totality 

of its § 209(e) regulatory framework. 

 What EPA in fact did in its rulemaking notice was to 

describe the existing statutory regime, identify the regulations 

that implement it, and lay out several discrete potential 

amendments, abjuring any intent to introduce substantive 

changes except in two designated realms: 

We are proposing to create a new part 1074 that would 

describe the federal preemption of state and local 

emission requirements. This is being done as part of 

EPA’s ongoing effort to write its regulations in plain 

language format in subchapter U of title 40 of the CFR. 

The proposed regulations are based directly on the 
12

existing regulations in 40 CFR part 85, subpart Q. With 

the exception of the simplification of the language and 

specific changes described in this section, we are not 

changing the meaning of these regulations. 

72 Fed. Reg. at 28,209/2-3 (emphasis added). The “specific 

changes” the agency referenced consisted of two new 

regulations, both implementing recent legislation preempting 

states other than California from imposing certain emissionsrelated rules on a new class of small engines. Id. In the final 

rule announcement, EPA carried out its proposal, repeating 

the language quoted above more or less verbatim. 73 Fed. 

Reg. at 59,130/1. Consistent with its asserted intention to 

rewrite the relevant regulations in plain language without 

changing their meaning, EPA also republished its § 209(e) 

rules in full. Id. at 59,380. 

Considering “the entire context of the rulemaking,” 

NARPO, 158 F.3d at 141, we conclude that EPA did not 

reopen consideration of the regulations ARTBA asked it to 

revise. Seemingly on ARTBA’s side are Ohio v. EPA, 838 

F.2d 1325, 1328 (D.C. Cir. 1988), and Montana v. Clark, 749 

F.2d 740, 744 (D.C. Cir. 1984), cases in which the agency 

included the pre-existing regulation in a Notice of Proposed 

Rulemaking and responded to comments on provisions later 

alleged to have been reopened; in both cases we found a 

reopening. But here, as in National Mining Association, any 

such responses were in answer to comments received pursuant 

to the publication of petitioner’s own call for revisions, which, 

as we said in National Mining, “is not, without much more, 

sufficient to trigger the reopener doctrine.” 70 F.3d at 1352. 

Though addressing feedback from ARTBA and others, the 

agency gave no “indication that [it] had undertaken a serious, 

substantive reconsideration” of the rules in question. See id. 

In fact, EPA went further, saying explicitly in its Notice of 

Proposed Rulemaking that it was “not proposing to adopt the 
13

. . . changes requested by ARTBA in its petition.” 72 Fed. 

Reg. at 28,209/3. As had the agency in National Mining, EPA 

appears merely to have sought comments on the premise that 

they might have persuaded it to actually reopen the matter. 

See 70 F.3d at 1351. 

 Finally, ARTBA identifies one further piece of evidence 

indicating that EPA reconsidered the relevant regulations. In 

2006, the organization filed suit alleging that EPA was 

unreasonably delaying action on ARTBA’s 2002 petition. See 

Am. Rd. & Transp. Builders Ass’n v. EPA, No. 06-1112 (D.C. 

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

argued that the case was moot since the agency had 

“‘commenced a rulemaking on the issues ARTBA raised.’” 

See Reply Br. at 7 (quoting No. 06-1112, Resp. Mot. to 

Dismiss at 3). In ARTBA’s view, this language amounts to a 

concession by EPA that it was reopening the rules ARTBA 

challenged. But even a cursory glance at the phrase, in its 

original context, reveals that EPA was simply referring to its 

publication of ARTBA’s petition, rather than stipulating for 

the purpose of that case and this one that the agency was 

revisiting the rules to the extent necessary to reopen them to 

judicial review. See National Min. Ass’n, 70 F.3d at 1351 

(“The decision to publish a petition for rule-making . . . is not 

evidence of a reexamination of the policy at issue in the 

petition.”). 

 We conclude that we are without jurisdiction to hear this 

petition. Accordingly, the case is 

Dismissed.