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American Road & Transportation Builders Association v. Environmental Protection Agency

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Argued November 9, 2009

Before: GARLAND and KAVANAUGH, Circuit Judges, and 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. 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).

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