American Automobile v. Commissioner, MA EPA ( 1994 )


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    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.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
    BACKGROUND
    __________

    A. Cars and the Clean Air Act
    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
    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
    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.
    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



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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



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    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,



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    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.















































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    III.
    III.

    LEADTIME
    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.

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    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



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    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





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    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.
    IV.

    COSTS AND FEES
    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.

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    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.

    V.
    V.

    CONCLUSION
    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.
    It is so ordered.
    _________________



























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