Title Independent Equipment Dealers Assoc. v. EPA
Argued February 10, 2004 Decided June 25, 2004
Subject
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2004 Decided June 25, 2004
No. 03-1020
INDEPENDENT EQUIPMENT DEALERS ASSOCIATION,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
ENGINE MANUFACTURERS ASSOCIATION,
INTERVENOR
On Petition for Review of an Order of the
Environmental Protection Agency
William R. Weissman argued the cause for petitioner. On
the briefs were LeAnn M. JohnsonKoch and James P.
Rathvon.
Laurel A. Bedig, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief was
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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2
Michael J. Horowitz, Attorney, U.S. Environmental Protec-
tion Agency.
Jed R. Mandel and Timothy A. French were on the brief
for intervenor.
Before: ROGERS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Petitioner Independent Equip-
ment Dealers Association (IEDA) is a trade association of
independent dealers of heavy construction and industrial
equipment, such as cranes, large forklifts, and generators.
IEDA dealers are ``independent'' in the sense that they are
not affiliated with any manufacturer. In December 2002,
IEDA wrote to EPA seeking EPA's concurrence in its inter-
pretation of emissions regulations pertaining to ``nonroad
engines'' -- engines used in such heavy construction and
industrial equipment. See generally 40 C.F.R. pt. 89. Four
weeks later, EPA replied that it did not concur in IEDA's
proffered interpretation. IEDA then filed this petition for
review claiming that EPA, by its letter, had substantively
amended its regulations concerning nonroad engines, and in
so doing had failed to comply with the notice-and-comment
requirements of Section 307(d) of the Clean Air Act, 42
U.S.C. § 7607(d)(3). IEDA alternatively contends that EPA's
letter violated the Clean Air Act's prohibition on agency
action that is arbitrary or capricious. See id. § 7607(d)(9)(A).
We conclude that we lack jurisdiction and accordingly dismiss
the petition for review.
I.
Since 1996, EPA has regulated nonroad engines by requir-
ing their manufacturers to obtain a ``certificate of conformity''
indicating compliance with EPA emissions standards before
selling such engines or importing them into the United
States. 40 C.F.R. §§ 89.105, 89.1003(a)(1); see also 42 U.S.C.
§ 7547(a) (authorizing regulation of nonroad engines); id.
§ 7522(a)(1) (prohibiting the sale, distribution, or importation
of any uncertified new motor vehicle engine). Manufacturers
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3
are not required to obtain certificates of conformity for each
individual engine or engine model, but rather for each ``engine
family.'' 40 C.F.R. § 89.105. EPA defines an engine family
as a group of engines ``expected to have similar emission
characteristics throughout their useful life periods'' -- a
categorization based on the design and emissions characteris-
tics of the engines. Id. § 89.116. The application for the
certificate of conformity must include `` a n unconditional
statement certifying that all engines in the engine family
comply with all requirements of this part 40 C.F.R. pt. 89
and the Clean Air Act.'' Id. § 89.115(d)(10). Those require-
ments include not only the emissions specifications, but also
recall liability, see id. § 89.701 et seq., emissions defect re-
porting requirements, see id. § 89.801 et seq., and warranty
obligations, see id. § 89.1007. Manufacturers are also subject
to ``selective enforcement auditing'' -- emissions testing at
the assembly line or, for engines manufactured abroad, at the
point of importation. See id. § 89.503.
In furtherance of this regulatory regime, EPA also re-
quires manufacturers to affix to each new engine an ``emission
control information label'' that identifies the engine and states
that it conforms to all EPA emissions standards and regula-
tions. Id. § 89.110, (b)(10); see also id. § 89.1003(a)(4)(ii)
(prohibiting sale or delivery of engine without emission con-
trol label affixed). On a practical level, this engine label
demonstrates to dealers, purchasers, and enforcement inspec-
tors that the engine is covered by an EPA certificate of
conformity. Unlabeled engines are presumed to be uncerti-
fied. See OFFICE OF REGULATORY ENFORCEMENT, U.S. ENVTL.
PROT. AGENCY, ENFORCEMENT ALERT: EPA STEPS UP ENFORCE-
MENT OF DIESEL, GASOLINE NONROAD ENGINE IMPORTS (Vol. 3, No.
2, Feb. 2000) (Enforcement Alert).
Many nonroad engines are manufactured outside the Unit-
ed States. Engines covered by a certificate of conformity
may be imported into the United States subject only to
ordinary customs regulations. Engines not covered by a
manufacturer's certificate of conformity may only be imported
if they comply with EPA's Independent Commercial Import-
ers (ICI) program. 40 C.F.R. § 89.601 et seq. The chief
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4
burden associated with the ICI program is that after the
importer has obtained a certificate of conformity for the
engine family, the importer still must test one of every three
imported engines for compliance with Part 89 emissions regu-
lations. According to EPA, each test costs between $15,000
and $30,000, depending on the engine. EPA Br. 9. Addition-
ally, since it is the importer, not the manufacturer, who
obtains a certificate of conformity for the engines, all other
Part 89 requirements -- labeling, recall and warranty, etc. --
run to the importer rather than the manufacturer. See 40
C.F.R. § 89.610. The ICI importer thus steps into the shoes
of the manufacturer, assuming all the obligations that would
ordinarily fall upon the manufacturer.
The market for nonroad engines in the United States is
segmented between original engine manufacturers (OEMs),
who sell the equipment they manufacture through networks
of authorized dealers, and independent equipment dealers,
who are not affiliated with an OEM. Independent dealers
make their way in the market by re-selling equipment, fre-
quently at lower prices than the OEMs. The collapse of the
AsiaPacific Rim economy in the late 1990s offered a unique
opportunity to enterprising independent equipment dealers.
In the deeply distressed Asian construction market, equip-
ment distributors found themselves with bloated inventories
and few prospects of selling that equipment locally. Sensing
an arbitrage opportunity, some U.S. independent dealers
bought equipment at depressed prices in Asia, and then
imported the equipment into the United States. Of course,
the Asian equipment could be legally imported only if it were
covered by a manufacturer's certificate of conformity or had
been taken through the costly and time-consuming ICI pro-
cess. Few independent dealers availed themselves of the ICI
program; the lack of significant EPA enforcement of Part 89
regulations made importation of uncertified equipment a
much more lucrative path.
The importation of low-priced Asian equipment -- EPA-
certified and otherwise -- by independent dealers into the
United States market had the predictable effect of undermin-
ing the pricing power of the OEMs in the United States.
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OEMs have a difficult time selling a machine for $50,000
when an independent dealer is selling the identical machine
for $35,000, having purchased it in Korea for $20,000.
The OEMs appealed to EPA for increased enforcement of
Part 89 regulatory requirements. In November 1998, EPA
and the Associated Equipment Distributors, a trade associa-
tion of authorized dealers, hosted a workshop to explain the
Part 89 requirements as they pertained to imported engines.
At the workshop, EPA vowed to enforce the regulations, and
the Customs Service explained that it would impound any
engine lacking an EPA emissions control information label.
See Christian A. Klein, GRAY MARKET CRACKDOWN: EPA &
CUSTOMS LAY DOWN THE LAW, CONSTR. EQUIP. DISTRIBUTION, Jan.
1999.
EPA followed up in February 2000 with an Enforcement
Alert announcing its intention to increase enforcement of
certificate of conformity and emission control information
label requirements with regard to imported nonroad engines.
See Enforcement Alert. In that document, EPA emphasized
that all engines imported into the U.S. must be covered by a
certificate of conformity and must bear an EPA-compliant
emissions control information label. Id. at 1. In a ``Fact and
Fiction'' segment, EPA also cautioned that many engines
obtained overseas were not eligible for importation:
Fiction: An uncertified engine having similar or even
identical emission characteristics as a certified engine
should be able to be imported.
Fact: Manufacturers may produce engines that are
identical to U.S. certified versions but the engines are
not intended for the U.S. market. These engines are not
certified and may not be imported unless they are pro-
duced under an EPA-issued certificate, and are proper-
ly labeledTTTT
Id. at 3.
EPA soon reiterated this position in response to an inquiry
from authorized dealers. OEMs asked whether manufactur-
ers could adopt a program of destination-specific labeling of
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6
engines, thereby indicating which engines are and which are
not covered by a certificate of conformity. EPA responded
that `` t he manufacturer is not only allowed to place a
destination-specific label on a non-certified engine intended
for sale elsewhere than the United States, but also is encour-
aged to do this.'' See Letter from Robert M. Doyle, EPA
AttorneyAdvisor, Certification and Compliance Division, Of-
fice of Transportation and Air Quality, to Julie R. Domike,
Esq. 1 (Nov. 21, 2000). EPA explained that
the key distinction for imported enginesTTTis whether
the manufacturer intended the engine to be covered by a
certificate or not to be covered by a certificateTTTT
In your scenario, the manufacturer has chosen, for
whatever reason, to not include under certificate cover-
age the engines intended for sale elsewhere than the
U.S., and so it will not place the EPA required emission
label on the engines. This step is correct.
Id. at 2.
EPA was even more explicit in its 2001 response to an
inquiry from an engine manufacturer. There EPA wrote,
`` m anufacturers also may chooseTTTto produce engines
which will not be covered by an EPA certificate, because they
will be sold elsewhere than the U.S.,'' even though `` t hese
non-certified engines may be physically identical to engines
which the manufacturer chooses to be covered by an EPA
certificate.'' Letter from John Guy, EPA Manager, Engine
Programs Group, Certification and Compliance Division, to
Jonathan S. Martel, Esq. 1 (July 6, 2001).
The OEMs then -- with EPA's blessing -- took the
position that only those engines they intended to import into
the United States were covered by EPA certificates of con-
formity, and began affixing EPA emissions control labels only
to those engines. This had the desired effect; independent
dealers seeking access to the United States market were left
only with the much less attractive option of importing uncerti-
fied machines through the ICI process, even though many of
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7
those engines -- according to IEDA -- were identical in all
respects to engines to which OEMs had affixed labels.
IEDA believes this destination-specific labeling program
violates EPA's Part 89 regulations. IEDA wrote to EPA to
raise the question of whether ``engines that are `identical' to
an EPA certified version can be designated `uncertified' by
the engine manufacturer under the regulations at 40 C.F.R.
Part 89.'' Letter of LeAnn M. JohnsonKoch to Christine
ToddWhitman, EPA Administrator 1 (Dec. 23, 2002) (IEDA
Letter). IEDA stated its view that because certificates of
conformity apply to ``engine families and not to individual
engines,'' and because ``the engine family is defined by its
physical characteristics,'' ``all engines that have the same
physical characteristicsTTTare covered by the certificate of
conformity issued to the engine family.'' Id. IEDA sought
EPA's concurrence in this conclusion and also IEDA's view
that all manufacturers' Part 89 obligations, including warran-
ty, recall, and defect reporting requirements, and, crucially,
the emissions control information label requirement, apply to
all such covered engines. Id. at 2.
EPA responded that it did not concur in IEDA's interpre-
tation of the Part 89 regulations. See Letter from Margo
Tsirigotis Oge, EPA Director, Office of Transportation and
Air Quality, to LeAnn M. JohnsonKoch, Esq. 1 (Jan. 21,
2003) (EPA Letter). EPA stated that `` n either the Clean
Air Act n or our regulations impose Part 89 requirements
on engines that the manufacturer did not introduce or intend
for introduction into U.S. commerce.'' Id. It explained that
the ``requirement to divide a `manufacturer's product line' into
engine families in 40 CFR 89.116 refers to that portion of the
product line intended for sale in the U.S.'' Id. at 2. Thus,
contrary to IEDA's interpretation, a manufacturer was em-
powered to ``identify which of its engines are covered by its
certificate of conformity and which are not.'' Id. This identi-
fication was typically accomplished, said EPA, through the
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8
affixing (or not) of the emissions control information label.
Id.
Unsatisfied with that response, IEDA filed the instant
petition for review.
II.
IEDA contends that the EPA Letter adds a manufacturer
``intent'' element to the definition of an ``engine family,'' and
thus substantively amends the Part 89 regulations -- specifi-
cally 40 C.F.R. § 89.116 -- without satisfying the notice-and-
comment requirements of the Clean Air Act. See 42 U.S.C.
§ 7607(d)(3). Alternatively, IEDA claims that the EPA Let-
ter violates the Act's prohibition on regulation that is ``arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.'' Id. § 7607(d)(9)(A).
We recently confronted a factually similar case in General
Motors Corp. v. EPA, 363 F.3d 442 (D.C. Cir. 2004). There,
General Motors petitioned for review of a letter from an EPA
enforcement official containing a regulatory interpretation
that certain automobile manufacturing solvents were ``solid
waste'' under the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6901 et seq. General Motors sought
review under RCRA's judicial review provision, 42 U.S.C.
§ 6976(a), alleging the agency letter unlawfully promulgated
a final regulation without satisfying the notice-and-comment
requirements of the Administrative Procedure Act, 5 U.S.C.
§ 553. We found that the letter in question ``reflect ed
neither a new interpretation nor a new policy,'' but rather
reiterated an interpretation that had been stated as early as
1997, and repeated without change on several occasions since.
General Motors, 363 F.3d at 449. We thus concluded that
EPA's letter did not amount to a final regulation. As our
jurisdiction under RCRA is limited to the review of ``final
regulations, requirements, and denials of petitions to promul-
gate, amend or repeal a regulation,'' id. at 448 (quoting
Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999))
(internal quotation marks omitted); see also 42 U.S.C.
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§ 6976(a), we dismissed General Motors' petition for lack of
jurisdiction.
This holding would seem to raise a serious impediment to
IEDA's substantive claims for relief. Here, we are presented
with a virtually identical notice-and-comment challenge to an
EPA letter, this time under the Clean Air Act. See 42 U.S.C.
§ 7607(d)(3). The notice-and-comment obligations under that
Act apply, however, only if the EPA Letter constitutes a
``promulgation or revision of any regulation pertaining to
nonroad engines,'' id. § 7607(d)(1)(R). See, e.g., American
Forest & Paper Ass'n v. EPA, 294 F.3d 113, 116 n.3 (D.C.
Cir. 2002); Western Oil & Gas Ass'n v. EPA, 633 F.2d 803,
812 (9th Cir. 1980) (``Section 7607(d) meticulously enumerates
a list of actions to which its substantive provisions apply and
expressly abrogates the review provisions of the APA only
with respect to those actions.''). As demonstrated above, the
so-called intent requirement reflected in EPA's letter to
IEDA is hardly new. EPA had publicly announced its inter-
pretation of the certificate of conformity requirement no later
than February 2000, when it labeled as ``Fiction'' the position
IEDA presses before us now -- that `` a n uncertified engine
having similar or even identical emission characteristics as
a certified engine should be able to be imported.'' Enforce-
ment Alert at 3. The ``Fact,'' according to EPA, was that
`` m anufacturers may produce engines that are identical to
U.S. certified versions but the engines are not intended for
the U.S. market. These engines are not certifiedTTTT'' Id.
Nearly three years later, EPA's letter to IEDA stated only
that `` a manufacturerTTTcan properly identify which of its
engines are covered by its certificate of conformity and which
are not.'' EPA Letter at 2. The EPA Letter thus reflects no
change in the position announced in the Enforcement Alert.
Just as in General Motors, because the January 2003 EPA
Letter does not reflect any change in EPA's Part 89 regula-
tions or its interpretation of those regulations, it is difficult to
see how that letter ``promulgat ed or revis ed TTT any
regulation pertaining to nonroad engines.'' 42 U.S.C.
§ 7607(d)(1)(R); see also Natural Res. Def. Council v. EPA,
902 F.2d 962, 982 (D.C. Cir. 1990) (separate opinion of Wald,
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10
J.) (``The word `promulgate' in the CAA refers only to the
original issuance of a standard, while the word `revision'
refers to subsequent modifications of that standard.''), vacat-
ed on other grounds, 921 F.2d 326 (D.C. Cir. 1991). Unlike
the situation in General Motors, though, this conclusion would
go to the merits of IEDA's claims for relief; it would not be
dispositive of our jurisdiction. In contrast to RCRA --
where jurisdiction is limited to ``final regulations,'' 42 U.S.C.
§ 6976(a) (emphasis added) -- we have jurisdiction under the
Clean Air Act to review ``any TTT nationally applicable regula-
tions promulgated, or final action taken, by the Administra-
tor.'' Id. § 7607(b) (emphasis added).
Both EPA and IntervenorRespondent Engine Manufac-
turers Association have raised numerous challenges to our
jurisdiction over IEDA's petition for review, among them that
the EPA Letter does not constitute ``final action'' within the
meaning of the judicial review provision of the Act, id.
§ 7607(b). See EPA Br. 1626; EMA Br. 810. As we are a
court of limited jurisdiction, we are obliged to consider these
jurisdictional objections before addressing the merits of
IEDA's substantive claims. See Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94102 (1998).
At the outset, we observe that EPA's claim that its letter
does not constitute ``final action'' seems somewhat inartful in
view of its concurrent insistence that the interpretation of the
certificate of conformity regulations contained therein is final
and not subject to change. See Recording of Oral Arg. of
Laurel A. Bedig, Counsel for EPA, at 15:22 (Question:
``You're not ever going to change your view about this, at
least in the near term. Right? This is your view. This is
your view of what the regulation has always been -- what it
was at the time of the Alert, and what it was at the time of
the Letter? Right?'' Answer: ``Correct.'' Question: ``So the
agency's view is not in process here?'' Answer: ``Absolutely
not.''); id. at 17:55 (Question: ``This is not going to change.
The view is not going to change. It's not tentative. You say
that it's not the culmination of an agency process but that's
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11
just because that process culminated long ago.'' Answer:
``That's right.'').
This line of argument becomes more understandable when
one considers the dual requirements for ``final agency action'':
(1) that the action be final -- i.e., not tentative or interlocu-
tory; and (2) that the action be one from which ``rights or
obligations have been determined'' or from which ``legal con-
sequences will flow.'' Bennett v. Spear, 520 U.S. 154, 17778
(1997) (internal quotation omitted). The Government's brief
makes clear that its underlying objection is not so much to
the first element -- concerning finality -- as it is to the
second -- concerning the types of agency action suitable for
review. EPA's brief does not assert that its interpretation is
tentative or interlocutory; it does, however, forcefully argue
that the EPA Letter is legally insignificant. See, e.g., EPA
Br. 18 (EPA Letter ``do es not relate to a specific enforce-
ment action or case pending before the Agency, do es not
contain any mandatory language or directives, and do es not
describe itself as guidance or announce that it contain s
new interpretations of the regulations''); id. at 21 (`` T he
EPA Letter lacks any indicia of a reviewable agency action.
The letter does not purport to impose new obligations on
IEDATTTT No legal consequences flow from it, and it inflicts
no injury on IEDA or its members.''). So rather than ask --
awkwardly -- whether an interpretation the parties agree is
not subject to change is final, we instead frame our inquiry as
whether the EPA Letter setting out that interpretation con-
stitutes reviewable agency action.
In answering that question, we start with the acknowledg-
ment that the term ``agency action'' undoubtedly has a broad
sweep. See, e.g., FTC v. Standard Oil Co. of California, 449
U.S. 232, 238 n.7 (1980); Whitman v. American Trucking
Ass'ns, 531 U.S. 457, 478 (2001). But we also have long
recognized that the term is not so all-encompassing as to
authorize us to exercise ``judicial review over everything
done by an administrative agency.'' Hearst Radio, Inc. v.
FCC, 167 F.2d 225, 227 (D.C. Cir. 1948). Here, common
sense, basic precepts of administrative law, and the Adminis-
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12
trative Procedure Act itself all point to the conclusion that the
EPA Letter to IEDA is not reviewable agency action.
The answer seems obvious once we examine the concrete
impact the EPA Letter had on IEDA and its members -- in
short, none whatsoever. As discussed above, the EPA Letter
merely restated in an abstract setting -- for the umteenth
time -- EPA's longstanding interpretation of the Part 89
certificate of conformity regulations. The Letter neither
announced a new interpretation of the regulations nor effect-
ed a change in the regulations themselves. The Letter was
purely informational in nature; it imposed no obligations and
denied no relief. Compelling no one to do anything, the letter
had no binding effect whatsoever -- not on the agency and
not on the regulated community. It was, as EPA describes
it, ``the type of workaday advice letter that agencies prepare
countless times per year in dealing with the regulated com-
munity.'' EPA Br. 18. At oral argument, counsel for IEDA
appeared to concede that such a letter, unless it wrought a
regulatory change, would be an insufficient basis for jurisdic-
tion. See Recording of Oral Arg. of William R. Weissman,
Counsel for IEDA, at 13:45 (Question: ``And TTT if we
thought that there was no change in the rule?'' Answer:
``Well, if there was no change, then presumably we should
have appealed in `94. I don't quarrel with that.'').
That concession is in accordance with our prior decisions.
We have held that we lacked authority to review claims where
``an agency merely expresses its view of what the law re-
quires of a party, even if that view is adverse to the party.''
AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001); see also
DRG Funding Corp. v. HUD, 76 F.3d 1212, 1214 (D.C. Cir.
1996) (holding unreviewable an agency order that ``does not
itself adversely affect complainant but only affects his rights
adversely on the contingency of future administrative action''
(internal quotation omitted)). Similarly, we have held often
enough that when an ``agency has not yet made any determi-
nation or issued any order imposing any obligationTTT, deny-
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13
ing any rightTTT, or fixing any legal relationship,'' the agency
action was not reviewable. Reliable Automatic Sprinkler Co.
v. CPSC, 324 F.3d 726, 732 (D.C. Cir. 2003) (citing Role
Models Am., Inc. v. White, 317 F.3d 327, 33132 (D.C. Cir.
2003)); see also id. (agency action not reviewable when `` n o
legal consequences flow from the agency's conduct'' and
``there has been no order compelling the regulated entity to
do anything''). `` P ractical consequences,'' such as the threat
of ``having to defend itself in an administrative hearing should
the agency actually decide to pursue enforcement,'' are insuf-
ficient to bring an agency's conduct under our purview. Id.
Moreover, our ``reopening doctrine'' specifically spells out
the circumstances when an agency's discussion of its existing
regulations can ripen into an ``opportunity for renewed com-
ment and objection'' to those regulations. Ohio v. EPA, 838
F.2d 1325, 1328 (D.C. Cir. 1988). Implicit in the very concept
of a reopening doctrine is the notion that regulations and
interpretations that have not been reopened by agency action
remain at repose and are not newly reviewable. This, of
course, makes good sense. Just as it would be folly to allow
parties to challenge a regulation anew each year upon the
annual re-publication of the Code of Federal Regulations, so
too it is silly to permit parties to challenge an established
regulatory interpretation each time it is repeated. Such a
regime would quickly muzzle any informal communications
between agencies and their regulated communities -- commu-
nications that are vital to the smooth operation of both
government and business.
Finally, the conclusion that the EPA Letter is not reviewa-
ble agency action draws support from the text of the Adminis-
trative Procedure Act. While this case is brought only under
the Clean Air Act -- IEDA raised no alternative APA
arguments in its petition for review -- the term ``final action''
is synonymous with the term ``final agency action'' as used in
Section 704 of the APA. See American Trucking Assn's, 531
U.S. at 478. Under the APA, ``agency action'' is a defined
term, limited to an ``agency rule, order, license, sanction,
relief, or the equivalent or denial thereof, or failure to act.'' 5
U.S.C. § 551(13). Of all these types of agency action, IEDA
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14
has alleged only that the EPA Letter constitutes a ``rule.''
See Pet. Br. 1920 (arguing EPA Letter revised the Part 89
regulations pertaining to nonroad engines by promulgating an
``Intent Rule''). Leaving nothing to chance, the APA also
defines a ``rule'' as ``an agency statement of general or
particular applicability and future effect designed to imple-
ment, interpret, or prescribe law or policyTTTT'' 5 U.S.C.
§ 551(4). Although the EPA Letter is certainly a statement
of ``general or particular applicability'' -- what isn't? -- and is
arguably of ``future effect'' insofar as it may inform the future
conduct of IEDA's members, the EPA Letter certainly does
not ``implement, interpret, or prescribe law or policy.'' By
restating EPA's established interpretation of the certificate of
conformity regulation, the EPA Letter tread no new ground.
It left the world just as it found it, and thus cannot be fairly
described as implementing, interpreting, or prescribing law or
policy. Cf. Industrial Safety Equip. Ass'n v. EPA, 837 F.2d
1115, 112021 (D.C. Cir. 1988) (agency statements that did
not ``change any law or official policy presently in effect'' did
not constitute a ``rule'' under the APA).
Our conclusion that the EPA Letter is not reviewable
agency action means that we lack jurisdiction to consider the
merits of IEDA's substantive claims under the Act. See 42
U.S.C. § 7607(b). This conclusion obviates the necessity of
considering the Government's and the Intervenor's other
jurisdictional arguments. See Fourth Branch Assocs. (Me-
chanicville) v. FERC, 253 F.3d 741, 745 (D.C. Cir. 2001) (``we
have no trouble dismissing a claim based on one jurisdictional
bar rather than another'') (internal quotation omitted).
The petition for review is dismissed for lack of jurisdiction.
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