UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-2276
AMERICAN AUTOMOBILE MANUFACTURERS ASSOCIATION, ET AL.,
Plaintiffs, Appellants,
v.
COMMISSIONER, MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Edward W. Warren, with whom Daniel F. Attridge, Stuart A.C.
Drake, Gary E. Marchant, Kirkland & Ellis, Robert F. Sylvia, Eric F.
Eisenberg, Hinckley, Allen & Snyder, Phillip D. Brady, V. Mark
Slywynsky, Of Counsel, American Automobile Manufacturers Association,
Charles H. Lockwood, and John T. Whatley, Of Counsel, Association of
International Automobile Manufacturers, Inc., were on brief for appellants. James R. Milkey, Assistant Attorney General, Deputy Chief,
Environmental Protection Division, with whom Scott Harshbarger,
Attorney General of the Commonwealth of Massachusetts, and David G.
Bookbinder, Assistant Attorney General, were on brief for appellee
Commissioner, Massachusetts Department of Environmental Protection. William H. Lewis, Jr., Hunter L. Prillaman, Morgan, Lewis &
Bockius, Paul F. Ware, Jr., Michael J. Meagher, Scott L. Robertson,
Goodwin, Procter & Hoar, G. William Frick, and David T. Deal, Of
Counsel, American Petroleum Institute on brief for appellee American Petroleum Institute. Lois J. Schiffer, Acting Assistant Attorney General, David C.
Shilton, Timothy J. Dowling, Attorneys, Environment and Natural
Resources Division, Jean C. Nelson, General Counsel, Alan W. Eckert,
Associate General Counsel, and Michael J. Horowitz, Attorney, Office
of General Counsel, United States Environmental Protection Agency, on brief for the United States, amicus curiae. Jacqueline M. Warren, and Berle, Kass & Case on brief for
American Lung Association, Natural Resources Defense Council, and Conservation Law Foundation, amici curiae. G. Oliver Koppel, Attorney General of the State of New York,
Peter H. Schiff, Deputy Solicitor, Val Washington, Joan Leary
Matthews, Helene G. Goldberger, Assistant Attorneys General; Michael
E. Carpenter, Attorney General of the State of Maine, Sarah Roberts
Walton, Assistant Attorney General; Jeffrey L. Amestoy, Attorney
General of the State of Vermont, J. Wallace Malley, Jr., Deputy
Attorney General; Jeffrey B. Pine, Attorney General of the State of
Rhode Island, and Michael Rubin, Assistant Attorney General and
Environmental Advocate, on brief for the States of New York, Maine, Vermont, and Rhode Island, amici curiae.
August 3, 1994
BOWNES, Senior Circuit Judge. Plaintiffs- BOWNES, Senior Circuit Judge.
appellants, the Massachusetts State Automobile Dealers
Association, Inc. and two trade groups of automobile
manufacturers, appeal from an order denying their request for
a preliminary injunction. Plaintiffs seek to stall the
implementation of motor vehicle tailpipe emissions
regulations adopted by defendant-appellee, the Commissioner
of the Massachusetts Department of Environmental Protection
(DEP). See Mass. Regs. Code tit. 310, 7.40-7.60.
Defendant-appellee, the American Petroleum Institute,
intervened in support of the regulations.
Prior to oral argument, plaintiffs moved to dismiss
their appeal as to all issues but one: whether DEP's 1995
model year requirements should be enjoined. DEP opposes the
motion for partial dismissal and requests costs and
attorney's fees. We grant the motion for partial dismissal.
We award DEP costs, but not attorney's fees. With respect to
the 1995 model year requirements, the order of the district
court is affirmed. I. I.
BACKGROUND
A. Cars and the Clean Air Act
The exhaust from a gasoline-powered engine is a
source of air pollution. Motor Vehicle Mfrs. Ass'n v. New
York Dep't of Envtl. Conservation, 17 F.3d 521, 524 (2d Cir.
1994) (hereinafter MVMA). Emissions from car tailpipes
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include hydrocarbons and nitrogen oxides (NOx), constituents
of ground-level ozone, a major component of smog. Id. at
526.
The Clean Air Act is the federal legislation
governing tailpipe emissions. The Act directs the United
States Environmental Protection Agency (EPA) to establish
national ambient air quality standards (NAAQS) for pollutants
such as ground-level ozone. Under the Act, states are
responsible for developing and enforcing a plan, subject to
EPA approval, for attaining and maintaining the NAAQS by
regulating sources of air pollution. 42 U.S.C. 7410(a).
States failing to meet the NAAQS risk sanctions, including
the loss of federal highway funds. Id. 7509. EPA has
designated the entire state of Massachusetts as a "serious"
nonattainment area for the ozone NAAQS. See 56 Fed. Reg.
56,694, 56,776 (Nov. 6, 1991).
Mobile sources of air pollution such as cars and
trucks are subject to EPA regulation under 202 and 207 of
the Act, 42 U.S.C. 7521, 7541. EPA emissions standards
for hydrocarbons and nitrogen oxides apply to a given vehicle
based on its weight, use classification, and model year. See
id. 7521, 7541; MVMA, 17 F.3d at 525-26.
State regulation of motor vehicle emissions is
generally preempted by the Clean Air Act, 42 U.S.C.
7543(a), with one exception: California can enforce its own
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standards, subject to EPA approval by way of a waiver under
209(b) of the Act, id. 7543(b) (the waiver requirement).
Consequently, there can be only two types of cars "created"
under emissions regulations in this country: "California"
cars and "federal" (that is, EPA-regulated) cars. See id.
7507. Other states cannot take any action that would force
manufacturers to create a "third vehicle."1 Id. (the third
vehicle requirement).
Section 177 of the Act allows other states to adopt
standards "identical" to California's (the identicality
requirement), but only if there is a two-year time lapse
between the time the standards are adopted and the first
model year affected by those standards (the leadtime
requirement). Id. Similarly, 211 of the Act authorizes
EPA to regulate motor fuels and preempts any unapproved state
1. The third vehicle provision states: Nothing in this section . . . shall be construed as authorizing any . . . State to prohibit or limit, directly or indirectly, the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California as meeting California standards, or to take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a "third vehicle") or otherwise create such a "third vehicle." 42 U.S.C. 7507.
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regulations, except for California, which may enact fuel
standards without EPA approval. Id. 7545(c)(4)(B).
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B. DEP's Adoption of California LEV Regulations
In September 1991, California enacted a novel set
of vehicle emissions and clean fuels requirements called the
"Low Emissions Vehicles/Clean Fuels" (LEV/CF) program. The
LEV component of the program requires the creation of four
categories of California cars to meet increasingly stringent
emissions standards, to be phased in over time: Transitional
Low-Emission Vehicles; Low-Emission Vehicles; Ultra-Low-
Emission Vehicles; and Zero-Emission Vehicles, such as
electric cars. California has also established annually
descending "fleet average requirements," based on sales
targets for each category of vehicles. A fleet average
requirement is a cap on the average emissions attributable to
all classes of vehicles produced by a particular manufacturer
in a given year (in other words, the manufacturer's "fleet").
California's requirements provide manufacturers with
"flexibility to develop varying emissions within their entire
fleet to meet [an] overall goal." MVMA, 17 F.3d at 535. On
January 7, 1993, EPA granted California a 209(b) waiver for
the program.
Meanwhile, on January 31, 1992, DEP adopted the LEV
component of California's standards, intending to apply the
standards beginning with 1995 models. DEP regulations allow
new California cars to be leased, bought, sold, and
registered in Massachusetts, but ban the acquisition, sale,
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and registration of new federal cars in the state. DEP's
proposed regulations sent out for notice and comment
contained fleet average requirements, but no such
requirements appear in the final rule because DEP preferred
to let the market determine the mix of new California cars in
the state.
C. Prior Proceedings
Plaintiffs filed an action in the District Court
for the District of Massachusetts, arguing that DEP's
regulations are preempted by the Act because DEP allegedly
failed to comply with 177 of the Act, 42 U.S.C. 7507.
Plaintiffs moved for summary judgment and for a preliminary
injunction, founding their motions on four claims: [1] the
regulations are not "identical" to California's, in that DEP
did not adopt California's clean fuels rules; [2] the
regulations force manufacturers to create a "third vehicle"
because of the higher sulfur content of gasoline in
Massachusetts; [3] the regulations were adopted by DEP before
EPA granted California a 209(b) waiver; and [4] the two-
year leadtime requirement precluded DEP from applying the
regulations to any 1995 models because two automakers planned
to begin producing 1995 cars before two years passed after
the regulations were adopted.
With the parties' consent, the court stayed the
summary judgment proceedings and ruled first on the motion
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for a preliminary injunction. The court denied the motion
without a hearing, ruling that while plaintiffs demonstrated
a risk of irreparable injury given the cost of vehicle
emissions controls, the balance of equities and the risk of
harm to the public interest did not clearly favor granting an
injunction. The court also found that plaintiffs failed to
demonstrate a likelihood of prevailing on the merits, which
is the "sine qua non" of the preliminary injunction test.
Weaver v. Henderson, 984 F.2d 11, 12 & n.3 (1st Cir. 1993).
Three of the four Clean Air Act issues presented to
the district court were later addressed by the Second Circuit
in a case concerning a challenge to New York's adoption of
the LEV standards. See MVMA, 17 F.3d at 521, aff'g in part
and rev'g in part Motor Vehicle Mfrs. Ass'n v. New York Dep't
of Envtl. Conservation, 831 F. Supp. 57 (N.D.N.Y. 1993)
(hereinafter New York DEC). The Second Circuit held in favor
of the state on the identicality and waiver claims, but held
in favor of the automakers on the leadtime claim. Id. at
532-35. The court did not consider the merits of the "third
vehicle" claim because the district court found material
facts at issue and set the claim down for trial. Id. at 530.
II.
PARTIAL DISMISSAL
Prior to oral argument, plaintiffs moved under Fed.
R. App. P. 42(b) to dismiss their appeal as to the
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identicality, waiver, and third vehicle claims, thereby
leaving the leadtime issue as the sole basis for interim
relief. Plaintiffs' action was prompted by the Second
Circuit's adverse ruling on the identicality and waiver
claims, which came after plaintiffs' opening brief was filed
in this case. In addition, plaintiffs maintain that the
third vehicle claim requires testimony on the effects of
sulfur on emissions systems, and that the evidence in the
record is outdated and incomplete.
We have broad discretion to grant voluntary motions
to dismiss. "An appeal may be dismissed on motion of the
appellant upon such terms as may be . . . fixed by the
court." Fed. R. App. P. 42(b); see also 16 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure 3988, at
480 (1977). Such motions are generally granted, but may be
denied in the interest of justice or fairness. See HCA
Health Servs. of Virginia v. Metropolitan Life Ins. Co., 957
F.2d 120, 123 (4th Cir. 1992); United States v. Washington
Dep't of Fisheries, 573 F.2d 1117, 1118 (9th Cir. 1978).
DEP contends that this case "presents one of the
rare occasions where justice requires that a voluntary motion
to dismiss be . . . denied," so that we might rule that the
third vehicle claim fails as a matter of law. We are
unpersuaded. None of the grounds that have compelled courts
-10- 10
to deny voluntary motions to dismiss are present here. See,
e.g., Township of Benton v. County of Berrien, 570 F.2d 114,
118-19 (6th Cir. 1978) (denying motion to dismiss filed by
one of two appellants because dismissal "would be a
meaningless gesture," where both appellants pressed same
arguments, and both would be affected by decision); Blount v.
State Bank & Trust Co., 425 F.2d 266, 266 (4th Cir. 1970)
(denying appellant's motion to dismiss, but granting
appellee's because appellant violated briefing schedule and
caused appellee to file motion to dismiss); Local 53, Int'l
Ass'n of Heat and Frost Insulators v. Vogler, 407 F.2d 1047,
1055 (5th Cir. 1969) (denying motion and affirming on the
merits because motion to dismiss was based on unsound
argument that appeal from injunction was moot since appellant
was voluntarily refraining from enjoined conduct); see also
Washington Dep't of Fisheries, 573 F.2d at 1118 (courts
"might have grounds" for denying motion to dismiss if sought
to evade appellate review and to frustrate court orders).
Furthermore, we note that granting the Rule 42(b)
motion will not shelter the remaining claims from scrutiny.
We will simply be accepting plaintiffs' decision to let those
claims be finally adjudicated before bringing them to this
court. Creaton v. Heckler, 781 F.2d 1430, 1431 (9th Cir.
1986). The interests of fairness and judicial economy are
well served by restricting our review to the leadtime issue,
-11- 11
the sole claim both parties concede we must decide.
Consequently, we grant the motion for partial dismissal and
decline to reach the merits of the third vehicle claim.
-12- 12
III.
LEADTIME
We turn to whether the district court was correct
in denying a preliminary injunction based on the leadtime
claim. We will reverse only if the district court abused its
discretion or made a manifest error of law. Narragansett
Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991).
At issue is the proper construction of the leadtime
requirement. The statute at issue, 177 of the Clean Air
Act, 42 U.S.C. 7507, empowers states to adopt and enforce
California emissions standards for vehicles and motor vehicle
engines "for any model year," if the state adopts such
standards "at least two years before commencement of such
model year (as determined by regulations of the [EPA]
Administrator)."2 The parties agree that the model year
2. Section 177 states, in pertinent part: Notwithstanding [the statute preempting state emissions regulations], any State which has plan provisions [for the attainment and maintenance of the NAAQS] may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines . . . if -- (1) such standards are identical to the California standards for which a waiver has been granted for such model year, and (2) California and such State adopt such standards at least two years before commencement of such model year (as determined by regulations of the Administrator). 42 U.S.C. 7507.
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designation of any particular vehicle depends on when that
model or engine was produced. According to EPA, a model year
is either the calendar year, or the manufacturer's production
period, lasting no longer than a day less than two years,
i.e., from January 2 of the preceding year through December
31 of the calendar year for which the model year is named.
40 C.F.R. 86.082-2 ("model year" means calendar year or
"the manufacturer's annual production period (as determined
by the [EPA] Administrator)"); EPA, Office of Mobile Sources,
Advisory Circular 6B (1987) (hereinafter Advisory Circular
6B) (defining annual production period).3
The parties dispute whether or not the leadtime
requirement applies on an industry-wide basis. According to
plaintiffs, all 1995 models sold in Massachusetts must be
federal cars because GM and Chrysler began producing 1995
models prior to January 31, 1994. In other words, the model
3. Advisory Circular 6B states, in pertinent part: The "annual production period" for any specific model within an engine family of light-duty vehicles or heavy-duty engines begins either: (1) when such vehicle or engine is first produced, or (2) on January 2 of the calendar year preceding the year for which the model year is designated, whichever date is later. The annual production period ends either: (1) when the last such vehicle or engine is produced, or (2) on December 31 of the calendar year for which the model year is named, whichever date is sooner.
-14- 14
year began less than two years after the LEV standards were
adopted.
Basing its interpretation on Advisory Circular 6B,
with support from EPA's amicus brief, DEP demurs, maintaining
that the leadtime requirement is satisfied as to any model in
an "engine family" first produced after January 31, 1994.
The record indicates that an "engine family" is a
classification used to group together vehicles that have the
same emissions control design. DEP's standards would apply
only to models or engine families first produced after
January 31, 1994. Plaintiffs characterize DEP's
interpretation as "splitting" the model year because the 1995
standards would apply to some, but not all 1995 cars.
The district court's position approximated DEP's
(and EPA's): "`The failure to provide the statutory leadtime
to a particular manufacturer for a particular model year does
not invalidate the standards themselves. Instead, it merely
renders them unenforceable as against those manufacturers
which were not given the requisite two-years notice.'"
American Automobile Mfrs. Ass'n v. Greenbaum, No. 93-10799-
MA, slip op. at 23 (D. Mass. Oct. 27, 1993) (quoting New York
DEC, 831 F. Supp. at 64 (emphasis in original)). The court
did not rule on whether each engine family has a different
model year commencement date, but noted that Advisory
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Circular 6B "seems to support DEP's understanding." Id. at
23 n.20.
Plaintiffs' industry-wide date for the commencement
of the model year prevailed in the Second Circuit. That
court held that EPA's position was not entitled to deference
because it was "newly minted" for litigation and was not
embodied in a regulation under 177. MVMA, 17 F.3d at 535.
Moreover, the court found an industry-wide date to be
consistent with Congressional intent, while EPA's
interpretation was unprecedented and "unreasonable" because
it would be confusing to the industry and impractical to
enforce. Id. at 535-36. Plaintiffs urge us to follow the
Second Circuit. We decline to do so.
In the first place, we are not confronted with a
regulatory program identical to that at issue in the Second
Circuit. New York, like California, but unlike
Massachusetts, imposed fleet average requirements to
determine the mix of vehicles sold in the state each year.
The Second Circuit determined that the leadtime provision was
"best read" with an industry-wide commencement date because
splitting the year would "unduly complicate the fleet
averaging plan." MVMA, 17 F.3d at 535. Manufacturers would
be unable to buy and sell emissions credits to meet the
requirements because some of them would have to comply with
1995 standards, but others would not. Id. We agree with the
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Second Circuit that fleet averaging might be more complicated
in the first year that California-type standards are
effective in a 177 state, but we discount the significance
of that consideration. Fleet averaging for emissions
programs is a concept devised by California, not Congress.
Although the Second Circuit found fleet averaging to be the
"crux" of the LEV plan, id., neither party in this case has
argued that under 177, states must adopt fleet average
requirements.4 Accordingly, the extent to which a split
model year interpretation unduly complicates the
administration of fleet averaging is not a pertinent
consideration.
Furthermore, we do not agree with the Second
Circuit's characterization of EPA's definition as having been
"newly minted" for litigation. EPA did not develop its
interpretation during litigation. Rather, the agency issued
Advisory Circular 6B in 1987, while New York and
Massachusetts adopted California's requirements in 1992. And
in a letter dated March 8, 1991, to Congressman John Dingell
(D. Mich.), the EPA Administrator cited Advisory Circular 6B
for the premise that "a state adopting California emissions
standards may apply these standards to any engine family
4. The automakers' position during DEP's notice and comment period for the LEV program (which originally included a fleet averaging scheme) was that fleet averaging violates the third
vehicle provision by restricting a manufacturer's ability to sell California cars in the state.
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whose production period begins on a date which is beyond two
years past the date that the standards were adopted . . . ."
It is significant that EPA's interpretation did not spring
from a litigator's self-spun argument, but arose prior to
litigation, and was expressed by the Administrator in a
letter to a member of Congress from Michigan. See Federal
Labor Relations Auth. v. United States Dep't of Navy, 941
F.2d 49, 59 (1st Cir. 1991) (deferring to agency
interpretation first announced in amicus brief and later
adopted as "official" agency position by agency director in
unpublished letter); cf. Martin v. Occupational Safety and
Health Review Comm'n, 111 S. Ct. 1171, 1179 (1991) ("Our
decisions indicate that agency `litigating positions' are not
entitled to deference when they are merely appellate
counsel's `post hoc rationalizations' for agency action,
advanced for the first time in the reviewing court.").
Based on the statutory requirement that "model
year" be determined by EPA regulations, the Second Circuit
held that Congress intended that EPA would promulgate a
regulation defining "model year" under 177. MVMA, 17 F.3d
at 535. We disagree. We find that a regulatory definition
predating 177 satisfies the statute. Congress's use of the
passive voice indicates that an existing regulatory
definition would suffice. Compare 177, 42 U.S.C. 7507
("as determined by regulations of the Administrator") with,
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e.g., id. 7521(a)(1) ("the Administrator shall" by
regulation prescribe federal auto emission requirements). In
1970, Congress passed 42 U.S.C. 7521(b)(3)(A), which
defines "model year," for the purposes of the federal
emissions control program, as the "calendar year," or "the
manufacturer's annual production period (as determined by the
[EPA] Administrator) which includes January 1 of such
calendar year. . . ." The regulatory definition of model
year in effect when 177 was enacted tracked that
definition: "`Model year' means [the calendar year, or] the
manufacturer's annual production period (as determined by the
Administrator) which includes January 1 of such calendar year
. . . ." 40 C.F.R. 86.082-2.
We also reject the Second Circuit's finding that
Congress could not have contemplated that the leadtime
provision might apply on an engine-family basis. MVMA, 17
F.3d at 535. We note first that what Congress "contemplated"
is of limited relevance, given that EPA was expressly
authorized to define when the model year commences.
Moreover, since 1972, EPA has issued advisory circulars
describing how to determine the model year "for any specific
model within an engine family." E.g., Advisory Circular 6A,
at 2 (Sept. 1, 1972). And while EPA has never implemented a
split model year in the federal emissions control program, we
do not place great weight on this. There are relatively few
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leadtime provisions in the Clean Air Act emissions control
program. Because states with 177 programs are, by
definition, encountering significant air pollution problems,
and because Congress expressly delegated to EPA the power to
define model year under 177, EPA may identify policy
considerations allowing it to construe the leadtime
provisions in the federal program differently from 177.
See Comite pro Rescate de la Salud v. Puerto Rico Aqueduct
and Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1989) ("[W]here
the reason for the court's `deference' reflects its belief
that Congress, in effect, delegated to the agency a degree of
interpretive power, it does not seem odd to find the agency
interpreting the same words somewhat differently as they
apply to different parts of the statute in order better to
permit that statute to fulfill its basic congressionally
determined purposes." (emphasis in original)), cert. denied,
494 U.S. 1029 (1990).
On the other hand, one might argue that a court
owes EPA's interpretation no deference because the statute
requires EPA to define "model year" by "regulation," while
EPA's definition is found not in a regulation, but in a
policy statement (Advisory Circular 6B). See MVMA, 17 F.3d
at 535 ("Section 177 charges the EPA with the single, narrow
responsibility to issue `regulations' in order to define the
commencement of a model year under 177. The EPA Advisory
-20- 20
Circular . . . is not a `regulation' for 177 purposes and
was not promulgated specifically to implement this provision
. . . ."). Plaintiffs failed to make such an argument to the
district court and compounded that error by omitting the
point from their opening brief.5 See McCoy v. MIT, 950 F.2d
13, 22 (1st Cir. 1991) ("It is hornbook law that theories not
raised squarely in the district court cannot be surfaced for
the first time on appeal."), cert. denied, 112 S. Ct. 1939
(1992); see also Frazier v. Bailey, 957 F.2d 920, 932 n.14
(1st Cir. 1992) (arguments raised only in reply brief are
insufficient to preserve claim on appeal). Until filing
their reply brief in this court, plaintiffs failed to assert
that no EPA definition of model year existed for the purposes
of 177, and in fact cited Advisory Circular 6B and 40
C.F.R. 86.082-2 to the district court for the premise that
the model year began on January 2, 1994. See, e.g.,
Plaintiff's Mem. of Law in Support of Mot. for S.J., at 44;
First Amended Complaint 55 ("As defined by EPA's
regulations, the 1995 model year commences as early as
January 2, 1994. See 40 C.F.R. 86-082-2 (1992); EPA Office
of Mobile Sources Circular 6B (1987).").
5. Plaintiffs argued below and in their opening brief that Congress's use of the terms "commencement" and "model year" in the singular foreclosed a "split" model year, that such an interpretation would have adverse effects on the industry, and that EPA had never used a split model year in the federal emissions control program.
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We have recognized an exception to the raise-or-
waive rule where the argument surfacing for the first time on
appeal is "`so compelling as virtually to insure appellant's
success,'" and a "`gross miscarriage of justice'" would
result from our failure to address it. Johnston v. Holiday
Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979) (citations
omitted); accord United States v. Slade, 980 F.2d 27, 31 (1st
Cir. 1992). The argument here is not so compelling as to
assure plaintiffs' success. EPA's interpretation of 177
would be entitled to some weight, where EPA administers the
federal emissions program and is charged with evaluating
whether state plans for meeting the NAAQS are consistent with
the Act. See 42 U.S.C. 7410(k)(3).
Furthermore, plaintiffs do not contend that our
failure to consider the argument would cause a gross
miscarriage of justice. Nor could they so contend. In the
first place, this is an interlocutory appeal; plaintiffs may
raise the argument in the district court before issues
pertaining to the 1995 requirements become moot, because the
model year for any vehicle lasts until December 31, 1995. In
addition, this is not a case in which an appellant might lose
her home, see United States v. One Urban Lot, 885 F.2d 994,
1001-02 (1st Cir. 1989), or a prisoner might remain
incarcerated, see United States v. La Guardia, 902 F.2d 1010,
1013 (1st Cir. 1990), if we deem the issue waived. And
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though the question before us, concerning the earliest date
vehicles outside California might be subject to California-
type emissions standards, is certainly one of interest to the
public, the degree of public interest pales in contrast with
that involved when the federal government's right to
prosecute suspected criminals is at issue, e.g., United
States v. Krynicki, 689 F.2d 289, 292 (1st Cir. 1982). These
cases show the gulf that exists between the prospective harm
here and the type of harm that permits serious consideration
of relaxing the raise-or-waive rule, within the reviewing
court's discretion. Accordingly, we find the argument waived
for the purposes of this appeal.
Assuming, therefore, that the regulatory definition
of model year required by 177 is embodied in Advisory
Circular 6B, we next inquire whether EPA's interpretation is
arbitrary, capricious, or manifestly contrary to the statute.
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837, 843-44 (1984). Such deference is due because
Congress explicitly delegated to EPA, the agency responsible
for administering the federal emissions program, the task of
defining model year under 177.
Plaintiffs argue that applying the leadtime
requirement to individual models or engine families
contradicts Congress's intent made manifest by the statute's
use of the terms "commencement" and "model year" in the
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singular. We disagree. At best, the statutory language is
ambiguous with respect to whether the leadtime requirement
might apply on an industry-wide or engine-family-specific
basis. See 42 U.S.C. 7507 (State "may adopt and enforce
[standards] for any model year . . . if-- . . . California
and such State adopt such standards at least two years before
commencement of such model year . . . ."). An examination of
other leadtime provisions enacted in 1977 for the Act's
federal emissions program does not clarify the issue because
those provisions generally pertain to heavy duty engines,
whose model year commencement date, according to the record,
is always January 1 of the calendar year. Moreover, those
provisions could be read with either an industry-wide model
year commencement date, or separate dates for different
engine families. E.g., 42 U.S.C. 7521(a)(3)(E)(ii) (1988)
("No such changed standard shall apply for any model year
before the model year four years after the model year during
which regulations containing such changed standard are
promulgated.") (repealed in 1990).
Moreover, the legislative history of 177 is
generally unenlightening.6 Congress clearly enacted the
6. Plaintiffs, in a footnote, quote a 1990 statement of Senator Nickles: If a State follows the necessary procedures, California standards can take effect in the first model year commencing 2 model years after the State has adopted the California standards. Thus, a State
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leadtime provision for the manufacturers' benefit. H.R. Rep.
No. 294, 95th Cong., 1st Sess. 310 (1977) ("Manufacturers are
not only assured of identity of standards and test
procedures; they are also assured adequate lead time."); see
also MVMA, 17 F.3d at 535. Although plaintiffs would prefer
that all 1995 cars be subject to the same regulatory
requirements, that is not necessarily the import of that
statement of legislative intent. EPA's interpretation grants
every manufacturer two years to develop emissions controls
and to devise marketing and distribution strategies for any
new vehicle or engine family subject to California-type
standards. There is no inherent conflict between EPA's
interpretation and Congress's intent.7
Plaintiffs maintain that EPA's interpretation does
not reflect a reasonable policy determination because it
would cause "enormous competitive and practical problems," in
that California-type requirements would apply to some 1995
that adopted fully waived California standards in November 1992 could, for example, have those standards take effect beginning in model year 1996. 136 Cong. Rec. S18274 (daily ed. Nov. 2, 1990). The leadtime provision was enacted in 1977 and was not amended in 1990. We give little weight to the remarks of a single member of Congress, made thirteen years after a statute is passed, in divining legislative intent.
7. DEP notes that EPA's interpretation has one salutary effect for the industry: each manufacturer could determine, from its own production schedules, not the schedules of others, whether to produce federal or California cars for the first year in which California-type standards are in effect.
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vehicles, while the remainder would be subject to federal
standards. Appellants' Br. at 46. According to plaintiffs,
this split would cause dealer and consumer confusion, the
disruption of vehicle distribution systems, and competitive
disadvantages for some dealers and manufacturers. DEP
argues, however, that these concerns are overstated, given
the widespread use of computerized inventory controls. Also,
on the other side of the balance is the state's interest in
applying California requirements to some models as soon as
possible. Any vehicle subject to regulatory controls will be
subject to those controls for the vehicle's useful life.
Conversely, vehicles escaping the controls may travel over
Massachusetts highways for years emitting pollutants in
excess of California standards. Whether EPA's interpretation
imposes greater costs than benefits is a policy
determination. "When Congress, through express delegation or
the introduction of an interpretive gap in the statutory
structure, has delegated policy making authority to an
administrative agency, the extent of judicial review of the
agency's policy determinations is limited." Pauly v.
Bethenergy Mines, Inc., 111 S. Ct. 2524, 2534 (1991). We
will reject the agency's interpretation only if it is
arbitrary or illegal. It is neither. Accordingly, based on
the assumption that Advisory Circular 6B provides a
-26- 26
regulatory definition of "model year" for the purposes of
177, we conclude that the leadtime requirement was satisfied.
The likelihood of success on the merits is a
predicate to the issuance of a preliminary injunction.
Plaintiffs failed to establish such a likelihood. Moreover,
plaintiffs "have not persuaded us that the lower court
overlooked pertinent factors, focused on inappropriate
factors, or made a serious error in weighing and balancing
the relevant concerns." Weaver, 984 F.2d at 14. Therefore,
we hold that the district court did not abuse its discretion
in refusing to enjoin the 1995 standards.
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IV.
COSTS AND FEES
DEP argues that it is entitled to costs and
attorney's fees. Prevailing parties are normally entitled to
costs. Fed. R. App. P. 39; 9 James W. Moore et al., Federal
Practice 239.02[1], at 39-6 to -7 (2d ed. 1994).8 And
costs are routinely available whenever this court dismisses
an appeal, even if the appellant moved for dismissal. See
Waldrop v. Department of Air Force, 688 F.2d 36, 37 (7th Cir.
1982).
On the other hand, DEP's argument for attorney's
fees must be rejected. DEP seeks reimbursement for legal
fees incurred in responding to the appeal on the claims that
were dismissed pursuant to Rule 42(b). Neither Rule 42(b)
nor Rule 39 provides authority for routine awards of
attorney's fees as a condition of voluntary dismissal.
Waldrop, 688 F.2d at 37-39. While fees may be awarded if an
appellant has filed a frivolous appeal or has acted in bad
faith, see Cruz v. Savage, 896 F.2d 626, 631-32, 635 (1st
Cir. 1990), we find no evidence of such conduct here. We are
8. Rule 39 states: Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise . . . ordered by the court; . . . if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.
-28- 28
unpersuaded by DEP's attempt to characterize the weeks that
transpired between the issuance of the Second Circuit opinion
and the motion for partial dismissal as evidence of
plaintiffs' vexatiousness. It takes time to evaluate a new
opinion, and to confer with the client on an appropriate
strategy.
CONCLUSION
For the foregoing reasons, we grant the motion for
partial dismissal and affirm the district court's decision
not to enjoin the 1995 requirements based on plaintiffs'
leadtime claim. Costs to DEP.
It is so ordered.
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