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American Road & Transportation Builders Ass'n v. EPA

The American Road & Transportation Builders Association ("ARTBA") is challenging EPA's narrow construction of Clean Air Act section 209(e)'s preemption of state and local emission-related standards/requirements applicable to "nonroad vehicles and engines" (i.e., mobile sources other than onroad vehicles and aircraft regulated under sections 209(a)-(d) and 233, respectively). These nonroad mobiles sources include vehicles and equipment such as farm and construction equipment, lawn and garden equipment, ATVs, marine craft and engines, and locomotives. Two earlier ARTBA challenges were dismissed on procedural grounds, and ARTBA currently has two challenges pending.

In "ARTBA I," ARTBA sought to compel EPA to act on ARTBA's 2002 petition for a rulemaking to change EPA's preemption rules, and the D.C. Circuit accepted EPA's representation that the Agency would respond to ARTBA's rulemaking petition in EPA's rulemaking to implement the Bond Amendment and held that EPA's undertaking was sufficient to render ARTBA's unreasonable-delay suit moot until EPA acted. Then, in "ARTBA II," the D.C. Circuit held that EPA's denial of ARTBA's rulemaking petition was not separately reviewable, outside some new information, within 60 days of filing the suit, to re-trigger the Clean Air Act's 60-day window for renewed judicial review of prior EPA rules.

In addition to the significant substantive issues of statutory interpretation on the preemption merits, the ARTBA litigation also presents significant procedural issues about when and how parties can obtain renewed judicial review when subsequent factual or legal developments undermine a prior Clean Air Act rule. In the years since EPA adopted the relevant nonroad preemption rules in 1994, there have been at least seven significant legal developments (summarized in the ARTBA III petition at pages 12-13) that have undermined EPA’s 1994 rules. ARTBA III attempts to resolve the procedural issues for renewed review and, if successful there, the substantive issues about EPA's preemption rules.

"ARTBA III," No. 11-1256 (D.C. Cir.) (challenge to EPA's denial of ARTBA rulemaking petition in connection with State Implementation Plan rule for San Joaquin air basin in California)

  • 2012-07-12    Joint Appendix
  • 2012-07-19    ARTBA's opening brief
  • 2012-07-19    EPA's response brief
  • 2012-07-19    ARTBA's reply brief
  • 2013-01-15    Court decision dismissing petition for review for lack of subject-matter jurisdiction
  • 2013-03-01    ARTBA's petition for panel reconsideration and rehearing en banc
  • 2013-03-07    Court order directing EPA to respond
  • 2013-03-18    ARTBA notice of supplemental authority on Hunter v. FERC
  • 2013-04-05    EPA response to petition for reconsideration and rehearing
  • 2013-04-24    ARTBA notice of supplemental authority on Honeywell Int'l. Inc. v. EPA
  • 2013-04-30    Court orders denying petition for panel consideration and rehearing en banc
  • 2013-07-29    Petition for a writ of certiorari and appendix
  • 2013-11-01    ARTBA's supplemental brief
  • 2013-11-26    EPA's opposition to petition
  • 2013-12-06    ARTBA's reply in support of petition
  • 2013-12-11    Distributed for Conference of January 10, 2014
  • 2014-01-13    Petition denied
  • 2014-02-07    Deadline for petition for rehearing

"ARTBA IV," No. 12-1243 (D.C. Cir.) (challenge to EPA's granting a waiver of federal preemption to California's nonroad LSI rule)

  • 2013-02-15    Court order on briefing schedule
  • 2013-03-22    ARTBA's opening brief and addendum
  • 2013-05-24    EPA's response brief
  • 2013-06-14    ARTBA's reply brief
  • 2013-06-28    Joint appendix
  • 2013-10-23    Court’s order scheduling oral argument before Judges Griffith, Kavanaugh, and Randolph Friday, 12/13/2013 a.m.
  • 2013-10-25    ARTBA's notice of supplemental authority on EPA's "ORD Waiver"
  • 2013-10-30    EPA's response to ARTBA's notice of supplemental authority on EPA's ORD Waiver
  • 2013-12-16    ARTBA's notice of supplemental authority on Dalton Trucking, Inc. v. EPA
  • 2013-12-16    ARTBA's notice of supplemental authority on Advocates for Highway & Auto Safety v. Fed’l Motor Carrier Safety Admin.
  • 2013-12-24    EPA notice of supplemental authority for Advocates for Highway & Auto Safety v. Fed’l Motor Carrier Safety Admin.
  • 2014-01-15    ARTBA's notice of supplemental auhority on Jones v. Bock and GHG Waiver Denial, 73 Fed. Reg. 12,156 (2008)
  • 2014-01-22    EPA notice of supplemental authority on GHG Waiver Denial, 73 Fed. Reg. 12,156 (2008)
  • 2014-01-22    EPA notice of supplemental authority on denial of writ of certiorari in ARTBA III
  • 2014-01-31    Court's decision and judgment
Contact for ARTBA: Nick Goldstein, Vice President of Environmental & Regulatory Affairs and Assistant General Counsel