USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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

_________________
___________________
_________
Drake, Gary E. Marchant, Kirkland & Ellis, Robert F. Sylvia, Eric
_____ ________________
________________ _________________ ____
Eisenberg, Hinckley, Allen & Snyder, Phillip D. Brady, V. M
_________
___________________________
__________________ _____
Slywynsky, Of Counsel, American Automobile Manufacturers Associati
_________
Charles H. Lockwood, and John T. Whatley, Of Counsel, Association
___________________
_______________
International Automobile Manufacturers, Inc., were on brief
appellants.
James R. Milkey, Assistant
Attorney General, Deputy Chi
_________________
Environmental Protection Division,
with whom Scott Harshbarg
________________
Attorney General of the Commonwealth of Massachusetts, and David
_____
Bookbinder, Assistant Attorney General, were on brief for appel
__________
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. Roberts
_______
_________________
__________________
________________

Goodwin, Procter & Hoar, G. William Frick, and David T. Deal,

_________________________ _________________
______________
Counsel, American Petroleum Institute on brief for appellee Ameri
Petroleum
Institute.
Lois J. Schiffer, Acting Assistant Attorney General, David
_________________
______
Shilton, Timothy J. Dowling, Attorneys, Environment and Natu
_______
____________________

Resources Division,

Jean C. Nelson, General Counsel, Alan W. Ecke

______________
____________
Associate General Counsel, and Michael J. Horowitz, Attorney, Off
____________________
of General Counsel, United States Environmental Protection Agency,
brief for the United States, amicus curiae.
Jacqueline M. Warren, and Berle, Kass & Case on brief
______________________
_____________________
American Lung Association, Natural Resources Defense Council,
Conservation Law Foundation, amici curiae.
G. Oliver Koppel, Attorney General of the State of New Yo
_________________
Peter H. Schiff, Deputy
Solicitor, Val Washington, Joan Le
_________________
_______________
________
Matthews, Helene G. Goldberger, Assistant Attorneys General; Mich
________ _____________________
____
E. Carpenter, Attorney General of the State of Maine, Sarah Robe
_____________
__________
Walton, Assistant Attorney General; Jeffrey L. Amestoy, Attor
______
___________________
General of the State of Vermont, J. Wallace Malley, Jr., Dep
________________________
Attorney General; Jeffrey B. Pine, Attorney General of the State
_______________
Rhode Island, and Michael Rubin, Assistant Attorney General
______________
Environmental Advocate, on brief for the States of New York, Mai
Vermont, and Rhode Island, amici curiae.
____________________
August 3, 1994
____________________

BOWNES,
BOWNES,
appellants,

Senior
Circuit
Judge.
Senior
Circuit
Judge.
________________________

the

Association,

Massachusetts

Inc.

and

two

State
trade

Plaintiffs-

Automobile
groups

of

Dealers
automobile

manufacturers, appeal from an order denying their request for

a

preliminary

injunction.

implementation

of

motor

regulations adopted by
of

Plaintiffs
vehicle

See
___

Mass.

Defendant-appellee,

to stall

tailpipe

defendant-appellee, the

the Massachusetts Department

(DEP).

seek

Regs.
the

the

emissions
Commissioner

of Environmental Protection

Code

tit.

American

310,

7.40-7.60.

Petroleum

Institute,

intervened in support of the regulations.

Prior to oral argument, plaintiffs moved to dismiss
their appeal

as to all issues

but one:

model year requirements should be

motion

for

partial

attorney's fees.

dismissal

whether DEP's 1995

enjoined.
and

DEP opposes the

requests

costs

and

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

court is affirmed.

district

I.
I.
BACKGROUND
BACKGROUND
__________

A.
A.

Cars and the Clean Air Act

Cars and the Clean Air Act
__________________________
The

source

exhaust

from a

of air pollution.

gasoline-powered engine

is a

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

-33

include

hydrocarbons and nitrogen oxides (NOx), constituents

of ground-level ozone,

a major

component of smog.

Id.
___

at

526.
The
governing

Clean

Air

Act

tailpipe emissions.

is
The

the

federal

Act directs

legislation
the United

States

Environmental Protection

Agency

(EPA) to

establish

national ambient air quality standards (NAAQS) for pollutants

such

as

ground-level

responsible for
EPA

the

attaining

sources of air

States failing
loss of

Under

to meet

Act,

pollution.

42

the NAAQS risk

the NAAQS

U.S.C.

the ozone

by

7410(a).

sanctions, including
Id.
___

7509.

entire state of Massachusetts

nonattainment area for

states are

plan, subject to

and maintaining

federal highway funds.

designated the

the

developing and enforcing a

approval, for

regulating

ozone.

NAAQS.

EPA has

as a "serious"

See
___

56 Fed.

Reg.

56,694, 56,776 (Nov. 6, 1991).

Mobile sources

of air

pollution such as

trucks are subject to EPA regulation under

the

Act, 42 U.S.C.

7521, 7541.

cars and

202 and 207

of

EPA emissions standards

for hydrocarbons and nitrogen oxides apply to a given vehicle

based on its weight, use classification, and model year.
id.
___

See
___

7521, 7541; MVMA, 17 F.3d at 525-26.

____
State

generally

regulation

preempted

7543(a), with one

by

the

exception:

of

motor
Clean

vehicle
Air

Act,

emissions is
42 U.S.C.

California can enforce its own

-44

standards, subject to EPA approval by way of a waiver under

209(b)

of the Act,

id.
___

Consequently, there can

under
cars

7543(b)

(the waiver requirement).

be only two types

emissions regulations

of cars "created"

in this country:

"California"

and "federal" (that is, EPA-regulated) cars.

7507.

Other states

manufacturers

cannot take any action that

to create a "third

vehicle."1

See id.
___ ___
would force

Id. (the third

___

vehicle requirement).
Section 177 of the Act allows other states to adopt
standards

"identical"

requirement),
between
model

but only

the time
year

requirement).

to

California's

if there

the standards

affected
Id.
___

by

those

Similarly,

is

(the

identicality

a two-year

are adopted
standards
211 of

time lapse

and the
(the

first

leadtime

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.
-55

regulations,

except

for California,

standards without EPA approval.

Id.
___

which

may

enact fuel

7545(c)(4)(B).

-66

B.
B.

DEP's Adoption of California LEV Regulations

DEP's Adoption of California LEV Regulations
____________________________________________
In

September 1991, California

of vehicle emissions and

enacted a novel set

clean fuels requirements called the

"Low Emissions Vehicles/Clean

Fuels" (LEV/CF) program.

The

LEV component

of the program

requires the creation

categories of California cars

to meet increasingly stringent

emissions standards, to be phased in over time:

Low-Emission

Vehicles;

Emission

Vehicles;

electric

cars.

descending
targets

Low-Emission

and

for each

has also

average
category

Transitional

Vehicles;

Zero-Emission

California

"fleet

of four

Ultra-Low-

Vehicles,

such

established

as

annually

requirements,"

based

on

of vehicles.

A fleet

sales
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
____

January 7, 1993, EPA granted California a

535.

On

209(b) waiver for

the program.
Meanwhile, on January 31, 1992, DEP adopted the LEV
component of California's

standards, intending to apply

standards beginning with 1995

new

California

cars

to

registered in Massachusetts,

models.

be

DEP regulations allow

leased,
but ban the

-77

the

bought,

sold,

and

acquisition, sale,

and registration of
proposed

new federal

regulations

contained

fleet

sent

out

average

requirements appear

cars in the
for

state.

notice

requirements,

in the final rule

DEP's

and

but

comment
no

such

because DEP preferred

to let the market determine the mix of new California cars in

the state.
C.
C.

Prior Proceedings
Prior Proceedings
_________________
Plaintiffs filed an

for

the

District

regulations are
failed

of

action in

Massachusetts,

preempted by

to comply with

Plaintiffs moved

the Act because

177 of

adopt

regulations
because

of

the Act, 42

California's

higher

DEP's

DEP allegedly
U.S.C.

7507.

for a preliminary
[1] the

to California's, in that DEP

clean

force manufacturers to
the

Court

that

their motions on four claims:

regulations are not "identical"

not

arguing

for summary judgment and

injunction, founding

did

the District

sulfur

fuels

rules;

[2]

the

create a "third vehicle"

content

of

gasoline

in

Massachusetts; [3] the regulations were adopted by DEP before

EPA
year

granted California a
leadtime requirement

209(b) waiver; and

precluded DEP

[4] the two-

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'

summary judgment

consent,

proceedings and

the court

stayed the

ruled first on

the motion

-88

for a preliminary

injunction.

The

court denied the

without a hearing, ruling that while

a

risk

of irreparable

emissions controls,

injury

motion

plaintiffs demonstrated

given

the cost

the balance of equities and

of

vehicle

the risk of

harm to the public interest did not clearly favor granting an

injunction.
demonstrate a
is

The court also found

that plaintiffs failed to

likelihood of prevailing on

the "sine qua

____ ___

non" of
___

the preliminary

the merits, which

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
the

a case concerning a
LEV standards.

challenge to New

See MVMA, 17
___ ____

York's adoption of

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
________________________
(hereinafter New York DEC).
____________

F.

Supp.

57 (N.D.N.Y.

1993)

The Second Circuit held in favor

of

the state on the identicality and waiver claims, but held

in

favor of the

532-35.
vehicle"

automakers on the

The court

leadtime claim.

Id. at
___

did not consider the merits of the "third

claim because

the

district

court found

facts at issue and set the claim down for trial.

material

Id. at 530.
___

II.
II.
PARTIAL DISMISSAL
PARTIAL DISMISSAL
_________________
Prior to oral argument, plaintiffs moved under Fed.
R.

App.

P.

42(b)

to

dismiss

their

appeal

as

to

the

-99

identicality,

waiver,

and

third

vehicle

claims,

thereby

leaving

the leadtime

relief.

issue as

Plaintiffs'

Circuit's adverse

action

ruling

claims, which came after

in

this case.

third
sulfur

the

on

was prompted
the

for interim

by

the

Second

identicality

and

waiver

plaintiffs' opening brief was filed

In addition,

vehicle claim

sole basis

plaintiffs maintain

requires

on emissions systems,

testimony on
and that

that the

the effects

the evidence

of

in the

record is outdated and incomplete.

We have broad discretion to grant voluntary motions
to dismiss.
appellant
court."

"An appeal
upon such

may be

terms as

dismissed on motion
may

be .

. .

fixed by

the

Fed. R. App. P. 42(b); see also 16 Charles A. Wright

___ ____

& Arthur R. Miller, Federal Practice and Procedure

______________________________
480 (1977).
denied

of the

Such

in

motions are generally granted, but

the interest

of justice

or

fairness.

3988, at
may be
See HCA
___ ___

Health Servs. of Virginia v. Metropolitan Life Ins. Co., 957

_________________________
___________________________
F.2d 120,

123 (4th Cir.

1992); United States

_____________

Dep't of Fisheries, 573 F.2d 1117, 1118 (9th

__________________

DEP contends

that this

v. Washington
__________
Cir. 1978).

case "presents one

of the

rare occasions where justice requires that a voluntary motion

to dismiss be . . .
third

vehicle claim

unpersuaded.

None

denied," so that we might rule

fails

as

a matter

of

law.

that the
We

are

of the grounds that have compelled courts

-1010

to

deny voluntary motions to dismiss are present here.

e.g.,
____

Township of Benton v. County of Berrien, 570 F.2d 114,

__________________
_________________

118-19 (6th
one

See,
___

of

Cir. 1978) (denying

two

meaningless

appellants
gesture,"

motion to dismiss

because

where

both

dismissal

filed by

"would

appellants

be

pressed same

arguments, and both would be affected by decision); Blount v.

______
State Bank & Trust Co., 425 F.2d
________________________
(denying

appellant's

appellee's because

motion

to

266, 266 (4th

dismiss,

appellant violated briefing

caused appellee to file

Cir. 1970)

but

granting

schedule and

motion to dismiss); Local 53, Int'l

________________

Ass'n of Heat and Frost Insulators v. Vogler, 407 F.2d 1047,

___________________________________
______
1055 (5th
merits

Cir. 1969)

because

motion

(denying motion
to

dismiss

and affirming
was

based

on

on the
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

"might have grounds" for denying motion to

at 1118

____

(courts

dismiss if sought

to evade appellate review and to frustrate court orders).

Furthermore, we note that
motion will

granting the Rule

not shelter the remaining

42(b)

claims from scrutiny.

We will simply be accepting plaintiffs' decision to let those

claims be
court.

finally adjudicated

Creaton
_______

1986).

v. Heckler,
_______

The interests of

well served by

before bringing them

781 F.2d 1430,

to this

1431 (9th

fairness and judicial

Cir.

economy are

restricting our review to the leadtime issue,

-1111

the

sole

claim

Consequently, we

both

parties

concede

grant the motion for

we

must

decide.

partial dismissal and

decline to reach the merits of the third vehicle claim.

-1212

III.
III.
LEADTIME
LEADTIME
________
We turn
in

denying a

claim.

to whether the district

preliminary injunction

court was correct

based on

the leadtime

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

Act, 42 U.S.C.

at issue,

177

of the Clean Air

7507, empowers states to adopt

and enforce

California emissions standards for vehicles and motor vehicle

engines

"for

standards
model

year

any model

"at least
(as

year,"

two years

determined

Administrator)."2

The

by

parties

if

the state

adopts

before commencement
regulations
agree that

of

2.

of such

the

the model

____________________
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

such

[EPA]
year

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.
-1313

designation of

any particular

model or engine was produced.

vehicle depends on

when that

According to EPA, a model year

is either the calendar year, or the manufacturer's production

period, lasting no

longer than

i.e., from January

____

2 of the preceding

31 of the

calendar year for which

40 C.F.R.
"the

a day less

86.082-2

than two

year through December

the model year is

("model year"

years,

named.

means calendar year

manufacturer's annual production

or

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

requirement applies on an
plaintiffs,

all 1995

whether or

not

the leadtime

industry-wide basis.

According to

models sold

in Massachusetts

must be

federal

cars because

models prior to

GM and

Chrysler began

January 31, 1994.

producing 1995

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.
-1414

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

classification used to group

same emissions
only

to

January

an

31,

or

DEP's

engine families

1994.

family"

is

together vehicles that have the

control design.

models

"engine

standards would apply

first

Plaintiffs

produced

characterize

after
DEP's

interpretation as "splitting" the model year because the 1995

standards would apply to some, but not all 1995 cars.
The
(and EPA's):

district

court's position

approximated DEP's

"`The failure to provide the statutory leadtime

to a particular manufacturer for a particular model year does

not invalidate the standards
__________
renders
which

them unenforceable
were

not

given

themselves.
as

the

Instead, it merely

against those

requisite

manufacturers

two-years

American Automobile Mfrs. Ass'n v. Greenbaum,

________________________________
_________

notice.'"

No. 93-10799-

MA, slip op. at 23 (D. Mass. Oct. 27, 1993) (quoting New York
________
DEC, 831 F.
___
did
model

Supp. at 64 (emphasis in original)).

not rule on whether

year

commencement

each engine family

date,

-1515

but

noted

The court

has a different
that

Advisory

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

court held that EPA's position

because

it was

"newly

the

consistent

court

minted" for

with

found

177.
an

would be

Congressional

enforce.

confusing to

Id. at 535-36.
___

Second Circuit.

the

intent,

F.3d at 535.
date

to

be

while

EPA's

and "unreasonable"

because

industry and

impractical to

Plaintiffs urge us

first place, we

to follow the

are not confronted

program identical to that at

Circuit.

New

Massachusetts,
determine

MVMA, 17
____

was not

We decline to do so.

In the
regulatory

litigation and

industry-wide

interpretation was unprecedented

it

That

was not entitled to deference

embodied in a regulation under

Moreover,

Second Circuit.

York,
imposed

like
fleet

the mix of vehicles

with a

issue in the Second

California,
average

but

unlike

requirements

sold in the

to

state each year.

The Second Circuit determined that the leadtime provision was

"best read"

with an industry-wide commencement

splitting

the

year

averaging

plan."

would

"unduly

complicate

MVMA, 17 F.3d at 535.

____

date because
the

fleet

Manufacturers would

be

unable

to buy

requirements

and sell

emissions

credits to

because some of them would

1995 standards, but others would not.

meet the

have to comply with

Id.
___

We agree with the

-1616

Second Circuit that fleet averaging might be more complicated

in

the

first

year

that

effective

in a

of

consideration.

that

programs is
Although

California-type

Fleet

averaging

177,

states must

requirements.4

Accordingly,

model

interpretation

year

administration

of

fleet

the

not Congress.

in this case has

adopt fleet

extent to
unduly

averaging

emissions

averaging to be the

LEV plan, id., neither party

___
under

for

devised by California,

the Second Circuit found fleet

argued that

are

177 state, but we discount the significance

a concept

"crux" of the

standards

is

average

which a

complicates
not

split
the

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

interpretation during litigation.

Advisory

Circular

6B

in

did

not develop

Rather, the

1987,

while

agency issued
New

York

and

Massachusetts adopted California's requirements in 1992.

in

its

And

a letter dated March 8, 1991, to Congressman John Dingell

(D. Mich.), the EPA

for the

Administrator cited Advisory Circular 6B

premise that "a state

standards

may apply

these

adopting California emissions

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.
-1717

whose

production period begins on a date which is beyond two

years past
It is
from

the date that the standards were adopted . . . ."

significant that
a litigator's

litigation,

and

EPA's interpretation did

self-spun argument,

was expressed

by

the

but arose

not spring
prior to

Administrator in

letter

to a member of

Congress from Michigan.

Labor Relations Auth. v.

______________________
F.2d

49,

59

(1st

adopted as

United States Dep't of Navy,

____________________________

Cir.

interpretation first

1991)

announced

(deferring

in amicus

"official" agency position by

unpublished

letter); cf.
___

Health Review Comm'n,

_____________________

See Federal
___ _______

to

brief

941

agency

and

later

agency director in

Martin v. Occupational Safety and

______
________________________

111 S.

Ct. 1171,

1179 (1991)

("Our

decisions indicate that agency `litigating positions' are not

entitled

to

counsel's

deference

`post
____

hoc
___

when

they

are

merely

rationalizations' for

appellate

agency

action,

advanced for the first time in the reviewing court.").

Based
year" be
held

regulation
We

predating
passive

the

determined by

that

at 535.

on

statutory

requirement

EPA regulations, the

Congress intended

that

EPA

defining "model year" under

disagree.

We find that

177 satisfies the statute.

voice

definition

indicates

would suffice.

("as determined by

that

an

Compare
_______

regulations of the

-1818

that "model

Second Circuit

would promulgate
177.

MVMA, 17 F.3d
____

a regulatory definition
Congress's use of the
existing
177, 42

regulatory
U.S.C.

7507

Administrator") with,
____

e.g.,
____

id.
___

7521(a)(1)

("the

Administrator

shall"

by

regulation prescribe federal auto emission requirements).

1970,

Congress

passed

42

U.S.C.

"model

year,"

for

the

defines

emissions control

program, as

7521(b)(3)(A),
purposes

of

In

which

the

federal

the "calendar year,"

or "the

manufacturer's annual production period (as determined by the

[EPA]

Administrator)

calendar year. .

. ."

year

when

in

effect

definition:

which

includes

January

The regulatory
177

was

of

definition of

enacted

"`Model year' means [the

such
model

tracked

that

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.
We also

Congress

could

86.082-2.
reject the

not

have

provision might apply

F.3d at 535.
is

of

contemplated

on an engine-family

finding that

that

the

basis.

leadtime
MVMA,
____

17

We note first that what Congress "contemplated"

limited

authorized

Second Circuit's

to

relevance,
define

when

given
the

that
model

EPA

was

year

expressly
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

____

at 2

(Sept. 1, 1972).

6A,

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

-1919

leadtime provisions

in the

Clean Air Act

program.

states

with

Because

emissions control

177

definition, encountering significant air

programs

are,

pollution problems,

and because Congress expressly delegated to EPA the power

define

model

considerations
provisions
See
___

year under
allowing

in the

177,
it

to

federal program

EPA may
construe

identify
the

to

policy
leadtime

differently from

Comite pro Rescate de la Salud v.

_______________________________

by

177.

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
interpreting
apply

the same

words

to different parts of

permit

that

determined

statute to

not seem odd to find

somewhat

differently as

the statute in

fulfill

the agency

its

they

order better to

basic congressionally

purposes." (emphasis in original)), cert. denied,

_____ ______

494 U.S. 1029 (1990).

On
owes EPA's

to define

definition

policy statement
at

hand, one

interpretation no

requires EPA
EPA's

the other

might argue that

a court

deference because the

statute

"model year" by

is found

not in

"regulation," while
regulation, but

(Advisory Circular 6B).

See
___

in a

MVMA, 17 F.3d
____

535 ("Section 177 charges the EPA with the single, narrow

responsibility to issue `regulations'

commencement of a

model year under

in order to define the

177.

The EPA Advisory

`regulation' for

177 purposes and

-2020

Circular

. . . is not a

was not promulgated specifically to implement

. . . .").
district

this provision

Plaintiffs failed to make such an argument to the

court and

point from their

compounded

that error

opening brief.5

by omitting

the

See McCoy v. MIT, 950 F.2d

___ _____
___

13, 22 (1st Cir. 1991) ("It is hornbook law that theories not
raised squarely in
the

the district court cannot be surfaced for

first time on appeal."),

(1992);

see also Frazier v.

___ ____ _______

(1st Cir. 1992)

insufficient

cert. denied, 112

_____ ______
Bailey, 957 F.2d
______

(arguments raised

to preserve

claim

their reply brief in this

S. Ct. 1939
920, 932 n.14

only in

reply brief

on appeal).

Until

are

filing

court, plaintiffs failed to assert

that no EPA definition of model year existed for the purposes

of

177,

C.F.R.
the

and in

fact cited

6B and

40

86.082-2 to the district court for the premise that

model year

began

Plaintiff's Mem. of Law

First

Advisory Circular

Amended

regulations,

on

January

January 2, 1994.

1995

1994.

See,
___

in Support of Mot. for S.J.,

Complaint
the

2,

model

See 40 C.F.R.
___

55

("As

defined

year commences

as

by

e.g.,
____
at 44;
EPA's

early

as

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.
-2121

We have recognized

an exception

to the

raise-or-

waive rule where the argument surfacing for the first time on
appeal is "`so compelling
success,'" and

"`gross

result from our failure

Inns, Inc., 595
___________

as virtually to insure appellant's

F.2d

miscarriage

to address it.
890, 894

of

justice'"

Johnston
________

(1st Cir.

would

v. Holiday
_______

1979) (citations

omitted); accord United States v. Slade, 980 F.2d 27, 31 (1st

______ _____________
_____
Cir. 1992).

The argument

assure plaintiffs'

success.

would be entitled to
federal

emissions

here is not

so compelling as

EPA's interpretation of

some weight, where EPA

program and

is

to
177

administers the

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
failure

to

consider

the

do

argument

not contend
would

cause

that
a

our
gross

miscarriage of justice.

Nor could

they so contend.

In

the

first place, this is

an interlocutory appeal; plaintiffs may

raise

in

the

argument

pertaining to the 1995

the district

court

before

issues

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
___
1001-02

(1st

United States v. One Urban Lot,

_____________
_____________
Cir.

1989),

or

prisoner

885 F.2d 994,

might

remain

incarcerated, see United States v. La Guardia, 902 F.2d 1010,

___ _____________
__________
1013

(1st Cir.

1990), if

we deem

the issue

waived.

And

-2222

though the
vehicles

question before us, concerning

outside California might

the earliest date

be subject to California-

type emissions standards, is certainly one of interest to the

public, the degree of public interest pales in contrast
that

involved

prosecute

when

suspected

the

federal

criminals

government's

is at

issue,

with

right

e.g.,
____

to

United
______

States v. Krynicki, 689 F.2d 289, 292 (1st Cir. 1982).

______
________
cases show the gulf that exists between
here and
of

These

the prospective harm

the type of harm that permits serious consideration

relaxing the

raise-or-waive

court's discretion.

rule, within

the reviewing

Accordingly, we find the argument waived

for the purposes of this appeal.

Assuming, therefore, that the regulatory definition
of

model

year required

Circular 6B, we next

by

177

is embodied

in Advisory

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
Congress explicitly

(1984).

defining model year under

requirement

argue

177.
that

applying

statute's

"commencement"

-2323

or

leadtime

contradicts Congress's intent made manifest by the

the terms

models

the

families

of

individual

emissions program, the task of

engine

use

to

due because

delegated to EPA, the agency responsible

for administering the federal

Plaintiffs

Such deference is

and "model

year"

in the

singular.

We disagree.

ambiguous

with respect to

might
basis.

apply on
See
___

an

At best, the statutory

industry-wide or

42 U.S.C.

[standards] for

whether the

language is

leadtime requirement
engine-family-specific

7507 (State "may adopt

any model year .

. . if-- .

and enforce

. . California

and such State adopt such standards at least two years before
commencement of such model year . . . .").
other

leadtime

provisions enacted

federal emissions program does

those

provisions generally

always January 1 of

provisions could
year

engine families.
("No such
before
which

E.g.,
____

duty engines,

42 U.S.C.

Moreover, those

an industry-wide model

or separate

changed standard

Act's

date, according to the record,

the calendar year.

date,

for the

to heavy

be read with either

commencement

1977

not clarify the issue because

pertain

whose model year commencement

is

in

An examination of

dates

for

different

7521(a)(3)(E)(ii) (1988)

shall apply

for any model

year

the model year four years after the model year during
regulations

containing

such

changed

standard

are

promulgated.") (repealed in 1990).

Moreover,
generally

the

legislative

unenlightening.6

history of

Congress clearly

177
enacted

is
the

____________________
6. Plaintiffs, in a
Senator Nickles:

footnote,

quote a

1990 statement

of

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
-2424

leadtime provision for the manufacturers' benefit.

H.R. Rep.

No. 294, 95th Cong., 1st Sess. 310 (1977) ("Manufacturers are
not

only

assured

of

identity

procedures; they are also

MVMA, 17 F.3d at 535.
____

that

all

requirements,

cars
that is

be

subject

not

to

the

same

necessarily the

manufacturer two years

and to

and

test

Although plaintiffs would prefer

statement of legislative intent.

every

standards

assured adequate lead time."); see

___

also
____

1995

of

regulatory

import of

that

EPA's interpretation grants

to develop

emissions controls

devise marketing and distribution

strategies for any

new vehicle
standards.

or

engine

There is

family
no

subject

inherent

to

California-type

conflict between

EPA's

interpretation and Congress's intent.7

Plaintiffs maintain that EPA's
not

reflect

a reasonable

policy

interpretation does

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.
-2525

vehicles,

while the

standards.
this

remainder would

Appellants' Br. at 46.

split would

cause dealer

disruption of vehicle
disadvantages

for

argues, however,

be subject

According to plaintiffs,

and consumer

confusion, the

distribution systems, and

some

dealers

that these

to federal

and

competitive

manufacturers.

concerns are

DEP

overstated, given

the widespread use of computerized inventory controls.

Also,

on

the other side of the balance

applying California
possible.
subject

requirements to

to those

Massachusetts

controls

for the

escaping the

highways

for

years

excess of California standards.

imposes

greater

determination.

costs

structure,

has

policy

arbitrary
the

life.

controls may travel

over

emitting

pollutants

benefits

the

policy

is

111 S.

agency's

that

making

in the

in

policy

is

Ct. 2524, 2534

It is neither.
Advisory

-2626

to

an

review of the

limited."

interpretation

statutory

authority

the extent of judicial

determinations

or illegal.

assumption

interpretive gap

delegated

Bethenergy Mines, Inc.,

______________________
reject

vehicle's useful

Whether EPA's interpretation

than

an

administrative agency,

will

soon as

"When Congress, through express delegation or

introduction of

agency's

some models as

Any vehicle subject to regulatory controls will be

Conversely, vehicles

the

is the state's interest in

only

Pauly
_____

v.

(1991).

We

if

is

it

Accordingly, based on

Circular

6B

provides

regulatory definition of "model

year" for the purposes

of

177, we conclude that the leadtime requirement was satisfied.

The
predicate

to

likelihood
the

of

issuance

success
of

Plaintiffs failed to establish

plaintiffs

"have

overlooked

pertinent

factors,
the
we

or made a

not

preliminary

us that
focused

serious error in

relevant concerns."

merits

the
on

is

injunction.

such a likelihood.

persuaded
factors,

on the

Moreover,

lower

court

inappropriate

weighing and balancing

Weaver, 984 F.2d at 14.

______

Therefore,

hold that the district court did not abuse its discretion

in refusing to enjoin the 1995 standards.

-2727

IV.
IV.
COSTS AND FEES
COSTS AND FEES
______________
DEP

argues

attorney's fees.
costs.

that

it

is

entitled

costs

and

Prevailing parties are normally entitled to

Fed. R. App. P. 39; 9 James W. Moore

Practice
________

239.02[1],

costs are

routinely available whenever this

an

to

appeal, even if the

at 39-6

to -7

(2d ed.

appellant moved for

et al., Federal
_______
1994).8

And

court dismisses
dismissal.

See
___

Waldrop v. Department of Air Force, 688 F.2d 36, 37 (7th Cir.

_______
_______________________
1982).
On
fees must
fees

the other

be rejected.

hand, DEP's argument

DEP

for attorney's

seeks reimbursement

for legal

incurred in responding to the appeal on the claims that

were dismissed

pursuant to Rule

42(b).

Neither

Rule 42(b)

nor

Rule

39

attorney's

fees

Waldrop, 688
_______
appellant

provides
as

authority
condition

F.2d at 37-39.

v. Savage,
______

of

routine

awards

voluntary

of

dismissal.

While fees may be awarded if an

has filed a frivolous

faith, see Cruz

___ ____

for

appeal or has

896 F.2d 626,

acted in bad

631-32, 635

Cir. 1990), we find no evidence of such conduct here.

(1st
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.
-2828

unpersuaded by

DEP's attempt to characterize

the weeks that

transpired between the issuance of the Second Circuit opinion

and

the

motion

for

partial

plaintiffs' vexatiousness.
opinion,

and to

confer with

dismissal

as

It takes time to
the client

evidence

of

evaluate a new

on an

appropriate

strategy.
V.
V.
CONCLUSION
CONCLUSION
__________
For the foregoing reasons,
partial dismissal
not

to enjoin

leadtime claim.

and affirm the

the

district court's

1995 requirements

Costs to DEP.

It is so ordered.
It is so ordered.
_________________

-2929

we grant the motion for

based on

decision

plaintiffs'