ELR Citation: 44 ELR 20024
No(s). 12-1243 (D.C. Cir. Jan 31, 2014)

The D.C. Circuit denied a road building association's petition for review challenging EPA's CAA §209(e) regulations, which preempt certain state regulation of nonroad engines. In general, §209(e) preemption reaches nationwide. California, however, may adopt certain otherwise preempted regulations with EPA approval. Other states may then adopt regulations identical to California's. The association has twice before tried to challenge the regulations, and both times the court dismissed the petitions as time-barred under the CAA's 60-day filing period. In this case, the association attempted to get around the 60-day time limit by styling its petition as a challenge to EPA's action authorizing California to adopt emissions regulations and operating restrictions on certain large spark ignition engines. It is not seeking to vacate the regulations but only to declare that they are invalid as applied in this instance. But the distinction is irrelevant. Just as the association could not previously circumvent Congress' effort by petitioning the Agency to revise its regulations and appealing its refusal to do so, the association cannot circumvent that effort now by challenging EPA's regulations whenever they are applied.