 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 9, 2015           Decided December 18, 2015

                        No. 13-1283

              DALTON TRUCKING, INC., ET AL.,
                      PETITIONERS

                             v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
     GINA MCCARTHY, IN HER OFFICIAL CAPACITY AS
 ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL
                PROTECTION AGENCY,
                   RESPONDENTS

            CALIFORNIA AIR RESOURCES BOARD,
                      INTERVENOR


                 Consolidated with 13-1287


      On Petitions for Review of Final Action of the
      United States Environmental Protection Agency


    Theodore Hadzi-Antich argued the cause for petitioners.
With him on the joint briefs were M. Reed Hopper and
Lawrence J. Joseph.

     Joshua M. Levin, Senior Trial Attorney, U.S. Department
of Justice, argued the cause for respondents. With him on the
                               2
brief was John C. Cruden, Assistant Attorney General.
Michael J. Horowitz, Attorney Advisor, U.S. Environmental
Protection Agency, entered an appearance.

     Ross H. Hirsch, Deputy Attorney General, Office of the
Attorney General for the State of California, argued the cause
for intervenor. With him on the brief were Kamala D. Harris,
Attorney General, and Robert W. Byrne, Senior Assistant
Attorney General.

   Before: GARLAND, Chief Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

     EDWARDS, Senior Circuit Judge: This case involves
consolidated petitions for review filed by Dalton Trucking,
Inc., et al. (hereinafter “Dalton Trucking”) and American
Road and Transportation Builders Association (“ARTBA”),
challenging a final decision by the Environmental Protection
Agency (“EPA”). EPA’s contested decision authorized
California regulations intended to reduce emissions of
particulate matter and oxides of nitrogen from in-use nonroad
diesel engines. Simultaneous to filing its petition for review in
this court, Dalton Trucking sought review of the same EPA
decision in the United States Court of Appeals for the Ninth
Circuit. ARTBA did not separately seek review in the Ninth
Circuit, but instead sought and was granted leave to intervene
on Dalton Trucking’s behalf.

     Believing that the D.C. Circuit is the proper venue for
Petitioners’ challenges, EPA moved to dismiss or,
alternatively, transfer Petitioners’ Ninth Circuit action to this
court. The Ninth Circuit declined to rule on EPA’s motion,
                               3
holding it in abeyance pending a ruling by this court as to
whether venue is proper in the D.C. Circuit. Before this court,
Dalton Trucking and ARTBA argue that the Ninth Circuit is
the proper venue for their challenges and seek dismissal or
transfer of their petitions for review.

     Venue in this case is governed by section 307(b)(1) of the
Clean Air Act (“CAA” or “Act”). See 42 U.S.C. § 7607(b)(1).
Pursuant to section 307(b)(1), venue over the challenges to
the EPA action at issue lies exclusively with this court only if
(1) the final action taken by EPA is “nationally applicable” or
(2) EPA found that its final action was based on a
determination of “nationwide scope or effect” and it published
this finding. See id.

     Petitioners claim that because EPA’s decision does not
satisfy either of the statutory avenues for filing in the D.C.
Circuit, venue is not proper in this court. We agree. We
therefore dismiss the petitions for review.

                      I.   BACKGROUND

     Section 209(e) of the Clean Air Act generally preempts
states from adopting standards relating to the control of
emissions from in-use nonroad diesel engines. See 42 U.S.C.
§ 7543(e)(1). California, however, may adopt emissions
standards for in-use nonroad diesel engines if it applies for
and receives a waiver of federal preemption from EPA. See
42 U.S.C. § 7543(e)(2)(A).

    To receive a waiver of federal preemption, California is
required to determine that its standards “will be, in the
aggregate, at least as protective of public health and welfare
as applicable Federal Standards.” Id. Following such a
determination, EPA must authorize a waiver application
                               4
unless EPA finds that (1) California’s determination was
arbitrary and capricious, (2) “California does not need such
California standards to meet compelling and extraordinary
conditions,” or (3) “California standards and accompanying
enforcement procedures are not consistent with [section 209
of the Act.]” Id. § 7543(e)(2)(A)(i)-(iii). Once EPA authorizes
California standards, other states may adopt and enforce
identical provisions as their own, subject to certain conditions.
Id. § 7543(e)(2)(B); see also Am. Trucking Ass’ns v. EPA, 600
F.3d 624, 628 (D.C. Cir. 2010).

    In July 2007, the California Air Resources Board,
California’s air pollution agency, approved regulations to
reduce particulate matter and oxides of nitrogen emissions
from in-use nonroad diesel engines (hereinafter “Nonroad
Fleet Requirements”). As amended, the Nonroad Fleet
Requirements apply to persons, businesses, or government
agencies owning or operating in California in-use nonroad
diesel engines with a maximum horsepower of 25 or greater.

    On March 1, 2012, the California Air Resources Board
requested that EPA authorize California’s Nonroad Fleet
Requirements pursuant to section 209(e) of the Act. EPA
granted the request. See Decision Granting a Waiver of Clean
Air Act Preemption (“Nonroad Waiver Decision”), 78 Fed.
Reg. 58,090 (Sept. 20, 2013). In its Nonroad Waiver
Decision, EPA concluded “that those opposing California’s
request have not met the burden of demonstrating that
authorization for California’s Fleet Requirements should be
denied based on any of the statutory criteria of section
209(e)(2)(A).” Id. at 58,121.

     Dalton Trucking filed a petition for review of EPA’s
Nonroad Waiver Decision in both this court and in the United
States Court of Appeals for the Ninth Circuit. See Dalton
                               5
Trucking Inc. v. EPA, No. 13-74019 (9th Cir. Nov. 19, 2013).
ARTBA, a nonprofit trade organization that represents the
collective interests of the U.S. transportation and construction
industries, also filed a petition for review of EPA’s Nonroad
Waiver Decision in this court. ARTBA additionally sought
and was granted leave by the Ninth Circuit to intervene on
Dalton Trucking’s behalf in the action before that court. In
both courts, Petitioners assert that in authorizing California’s
Nonroad Fleet Requirements, EPA misapplied the statutory
requirements of section 209(e) and that EPA’s decision was
arbitrary and capricious or otherwise not in accordance with
law.

     EPA filed a motion to have the case before the Ninth
Circuit dismissed or transferred to this court. The Ninth
Circuit directed that the agency’s motion be held in abeyance
pending a ruling by this court as to whether Petitioners’
challenges were “properly filed” in the D.C. Circuit.
Petitioners now contend that venue is not proper in the D.C.
Circuit.

                        II. ANALYSIS

     Section 307(b)(1) of the Clean Air Act, titled
“Administrative proceedings and judicial review,” provides,
in relevant part:

    A petition for review of action of the Administrator
    in promulgating [certain enumerated nationally
    applicable actions] or any other 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. A petition for review of [certain
    enumerated locally or regionally applicable actions]
                              6
    or any other final action of the Administrator under
    this chapter . . . which is locally or regionally
    applicable may be filed only in the United States
    Court of Appeals for the appropriate circuit.
    Notwithstanding the preceding sentence a petition
    for review of any action referred to in such sentence
    may be filed only in the United States Court of
    Appeals for the District of Columbia if such action is
    based on a determination of nationwide scope or
    effect and if in taking such action the Administrator
    finds and publishes that such action is based on such
    a determination.

42 U.S.C. § 7607(b)(1).

     Although section 307(b)(1) no where uses the phrase
subject matter jurisdiction, in Harrison v. PPG Industries,
Inc., 446 U.S. 578 (1980), the Supreme Court was clear that
the provision confers jurisdiction on the courts of appeals.
Once section 307(b)(1) is understood as a jurisdictional
provision, it is apparent from its terms that the jurisdiction
conferred extends both to “the United States Court of Appeals
for the District of Columbia” and to the regional “United
States Court of Appeals.” It is also apparent from its terms
and legislative history, that in addition to conferring subject
matter jurisdiction on the Courts of Appeals, section
307(b)(1) is a venue provision. See Tex. Mun. Power Agency
v. EPA, 89 F.3d 858, 867 (D.C. Cir. 1996) (per curiam); see
also Harrison, 446 U.S. at 590-91. And in specifying venue,
section 307(b)(1) distinguishes between cases that may be
filed only in the Court of Appeals for the D.C. Circuit and
those that may be filed only in other U.S. Courts of Appeals.
See Tex. Mun. Power Agency, 89 F.3d at 867. Thus, under
section 307(b)(1), subject matter jurisdiction and venue are
not coterminous.
                               7

     Our decisions have not always distinguished between
307(b)(1)’s dual functions. For example, some opinions
suggest in dicta that section 307(b)(1) gives this court
“exclusive jurisdiction over challenges to final EPA actions,”
inadvertently suggesting that jurisdiction and venue under
section 307(b)(1) are coterminous. See, e.g., Nat. Res. Def.
Council v. EPA, 643 F.3d 311, 317 (D.C. Cir. 2011). Such
opinions do not address, no doubt because the parties did not
raise the issue, section 307(b)(1)’s undeniable vesting of
subject matter jurisdiction in both “the United States Court of
Appeals for the District of Columbia” and regional “United
States Court of Appeals.” Indeed, there are a plethora of
decisions from other circuits resolving section 307(b)(1)
challenges to final agency actions having only local or
regional impact. See, e.g., Nat. Res. Def. Council, Inc. v. EPA,
638 F.3d 1183 (9th Cir. 2011); New York v. EPA, 133 F.3d
987 (7th Cir. 1998).

     In addition, past opinions asserting that section 307(b)(1)
confers exclusive jurisdiction on the D.C. Circuit are not
easily squared with other decisions in which we have applied
section 307(b)(1) as a venue provision. See, e.g., Am. Rd. &
Transp. Builders Ass’n v. EPA, 705 F.3d 453, 455-56 (D.C.
Cir. 2013) (dismissing a challenge to an EPA action taken
under section 307(b)(1) because venue was not proper in the
D.C. Circuit); Util. Air Regulatory Grp. v. EPA, No. 01-1064,
2001 WL 936362, at 1 (D.C. Cir. July 10, 2001) (same).

    Lest there be any confusion going forward, we reiterate
what the Supreme Court made clear thirty-five years ago:
Section 307(b)(1) is a “conferral of jurisdiction upon the
courts of appeals.” Harrison, 446 U.S. at 593. We stress,
however, that section 307(b)(1) is also a venue provision,
specifying which types of section 307(b)(1) challenges can be
                              8
filed in which federal circuit courts. When a party challenges
final actions reviewable under section 307(b)(1), venue is
determined as follows:

      Petitions for review of certain enumerated nationally
       applicable actions and rules “or any other nationally
       applicable regulations promulgated, or . . . final action
       taken . . . may be filed only in the United States Court
       of Appeals for the District of Columbia.” 42 U.S.C. §
       7607(b)(1).

      Petitions for review of certain enumerated locally or
       regionally applicable actions “or any other final action
       . . . which is locally or regionally applicable may be
       filed only in the United States Court of Appeals for the
       appropriate circuit.” Id.

      Petitions for review of “locally or regionally
       applicable” final actions “may be filed only in the
       United States Court of Appeals for the District of
       Columbia if such action is based on a determination of
       nationwide scope or effect and if in taking such action
       [EPA] finds and publishes that such action is based on
       such a determination.” Id.

     A brief procedural note: Parties normally may consent to
be sued in a court that would otherwise be an improper venue.
See Tex. Mun. Power Agency, 89 F.3d at 867. And a party’s
failure to object to venue may waive the issue. See id.; Nat’l
Wildlife Fed’n v. Browner, 237 F.3d 670, 675 (D.C. Cir.
2001). Moreover, it is generally understood that courts of
appeals have the “inherent power to transfer cases over which
we have jurisdiction, but not venue.” Alexander v. Comm’r of
Internal Revenue, 825 F.2d 499, 502 (D.C. Cir. 1987) (per
curiam). Here, because Petitioners preserved their objection to
                               9
venue in this circuit (after protecting their right to review by
filing in both our circuit and the Ninth Circuit) we need not
decide whether this court may sua sponte dismiss a petition
for review under section 307(b)(1) for lack of venue.

     EPA contends that venue is proper in the D.C. Circuit
because its Nonroad Waiver Decision is nationally applicable.
Alternatively, the agency argues that venue is proper because
its decision was based on a determination of nationwide scope
and effect, which it found and published. On the record before
us, we find that EPA’s Nonroad Waiver Decision is not
nationally applicable. We also find that EPA neither found
that its Nonroad Waiver Decision was based on a
determination of nationwide scope or effect nor published
such a finding. Therefore, this court is not the proper venue
for Petitioners’ challenges.


                            ****

     EPA makes three arguments in support of its principal
contention, which is that its Nonroad Waiver Decision has
national applicability. None is persuasive. First, according to
EPA, its decision “is a nationally-applicable final action
because other States may automatically adopt California’s
nonroad standards without further EPA review under 42
U.S.C. § 7543(e).” Br. for Respondents at 20; see also id. at
27-28. Although it is true that California’s Nonroad Fleet
Requirements may be adopted and applied by other states,
there is no statutory or regulatory requirement that other states
follow California’s lead. And to date, no other state has.
Indeed, EPA offers no compelling evidence to show that it is
common practice for other states to adopt California standards
following preemption waivers by the EPA.
                               10
     EPA attempts to paper over the fundamental weakness in
its national applicability argument – the complete absence of
evidence of any application of the Nonroad Fleet
Requirements outside of California – by asserting that it
“strains credulity to presume” that Congress would make
California standards nationally available for adoption by other
states, yet require that EPA decisions authorizing such
standards be treated as regionally applicable actions
reviewable in the Ninth Circuit and not in the D.C. Circuit.
See Br. for Respondents at 30. We disagree. In section
307(b)(1), Congress required more than national availability
to demonstrate that venue lies exclusively in the D.C. Circuit.
It required national applicability. And that we simply do not
have on this record.

     Second, the agency argues that EPA’s Nonroad Waiver
Decision is a nationally applicable action because California’s
Fleet Requirements will regulate off-road diesel engines and
vehicles based outside of California. See Br. for Respondents
at 20-21. In fact, according to EPA, the majority of affected
fleets may be based in neighboring states. See id. at 32-33.
This argument is inapposite. To determine whether a final
action is nationally applicable, “this Court need look only to
the face of the rulemaking, rather than to its practical effects.”
Am. Rd. & Transp. Builders Ass’n, 705 F.3d at 456 (citing
NRDC v. Thomas, 838 F.2d 1224, 1249 (D.C. Cir. 1988)). By
their terms, the Nonroad Fleet Requirements authorized by
EPA regulate only nonroad engines and vehicles that are
owned or operated in California. And the Nonroad Waiver
Decision, on its face, is not nationally applicable because it is
limited to fleets operating in California.

    EPA also suggests that the D.C. Circuit is the proper
venue for Petitioners’ challenges because this court has
“consistently treated similar petitions for review as nationally
                               11
significant actions reviewable in this court.” Br. for
Respondents at 28. This is a puzzling argument as the cases
cited by EPA neither address venue nor examine whether the
final actions at issue were nationally or locally applicable.
See, e.g., Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d
449 (D.C. Cir. 1998); Motor & Equip. Mfrs. Ass’n v. EPA,
627 F.2d 1095, 1106 (D.C. Cir. 1979).

     EPA’s alternative contention – that venue in this circuit is
“compelled by [its] published determination that its action
would have a nationwide scope or effect,” Br. for
Respondents at 34 – is a transparent sleight of hand that does
not persuade us.

     Because, as demonstrated, EPA’s Nonroad Waiver
Decision is not “nationally applicable,” it is, under section
307(b)(1), a “locally or regionally applicable” final action.
Therefore, under section 307(b)(1), venue in the D.C. Circuit
is improper unless EPA based its Nonroad Waiver Decision
on a determination of “nationwide scope or effect” and EPA
published its finding in that regard. See 42 U.S.C. §
7607(b)(1). Contrary to what it asserts, EPA did not make or
publish such a finding. Instead, EPA found (and published)
that its Nonroad Waiver Decision was a “final action of
national applicability.” See Nonroad Waiver Decision, 78
Fed. Reg. at 58,121. Even if this were a valid finding, which it
is not, nowhere does the text of section 307(b)(1) allow EPA
to substitute a finding of “national applicability” for the
required finding that a decision of local or regional
applicability is based on a determination of “nationwide scope
or effect.”

    EPA nonetheless urges that its invalid “national
applicability” finding is, per se, a finding of “nationwide
scope or effect.” Br. for Respondents at 34-35. But section
                              12
307(b)(1)’s text makes plain that a “nationally applicable”
final action and a final action with “nationwide scope or
effect” are quite different. The first sentence of section
307(b)(1) provides that challenges to nationally applicable
final action may be brought only in the United States Court of
Appeals for the District of Columbia. The third sentence of
section 307(b)(1) provides that “notwithstanding” the fact that
a final action is “locally or regionally applicable,” a petition
for review may be brought in the United States Court of
Appeals for the District of Columbia “if such action is based
on a determination of nationwide scope or effect” and EPA
publishes a finding containing such determination. See 42
U.S.C. § 7607(b)(1). Congress left no doubt that a “nationally
applicable” final action and a final action that is “local or
regionally applicable” but based on a determination of
“nationwide scope or effect” are not the same.

     Although EPA did not make or publish a finding that its
Nonroad Waiver Decision was based on a determination of
nationwide scope or effect, nothing in this court’s opinion is
meant to suggest that EPA could not have done so. We simply
have no occasion to reach the question. EPA is well versed in
how to make such a finding. See Alcoa, Inc. v. EPA, No. 04-
1189, 2004 WL 2713116, at *1 (D.C. Cir. Nov. 24, 2004) (per
curiam) (denying motion to transfer petition to the United
States Court of Appeals for the Seventh Circuit under section
307(b)(1) because “the Administrator has unambiguously
determined that the final action . . . has nationwide scope and
effect”). EPA has even, on occasion, published findings that a
final action was both “nationally applicable” and based on a
determination of “nationwide scope or effect.” See, e.g.,
Decision Granting a Waiver of Clean Air Act Preemption, 79
Fed. Reg. 46,256, 46,265 (Aug. 7, 2014). In this case, EPA
did not find that its Nonroad Waiver Decision is based on a
                            13
determination of “nationwide scope or effect.” There was
consequently no such determination to publish.

                     III. CONCLUSION

     For the foregoing reasons, we dismiss the petitions for
review.
