New York v. National Highway Traffic Safety Administration

19-2395-ag (L)
New York, et al. v. National Highway Traffic Safety Administration, et al.

In the
United States Court of Appeals
For the Second Circuit

August Term, 2019
Nos. 19-2395-ag (L), 19-2508-ag (CON)

STATE OF NEW YORK, STATE OF CALIFORNIA, STATE OF CONNECTICUT,
STATE OF DELAWARE, DISTRICT OF COLUMBIA, STATE OF ILLINOIS,
STATE OF MARYLAND, COMMONWEALTH OF MASSACHUSETTS, STATE
OF NEW JERSEY, STATE OF OREGON, STATE OF RHODE ISLAND, STATE OF
VERMONT, STATE OF WASHINGTON, STATE OF MAINE, NATURAL
RESOURCES DEFENSE COUNCIL, INC., SIERRA CLUB,
Petitioners,

v.

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, JAMES C.
OWENS, in his capacity as Acting Administrator of the National
Highway Traffic Safety Administration, ELAINE CHAO, in her
capacity as Secretary of the United States Department of
Transportation,
Respondents,

ALLIANCE FOR AUTOMOTIVE INNOVATION,
Intervenor. *

* The Clerk of Court is respectfully directed to amend the caption as set
forth above.
 Petition for Review of Agency Rulemaking

ARGUED: JUNE 1, 2020
DECIDED: AUGUST 31, 2020

Before: SULLIVAN, PARK, and NARDINI, Circuit Judges.

The petitioners ask this Court to vacate a final rule published by the
National Highway Traffic Safety Administration (“NHTSA”) on July 26,
2019, which reversed the agency’s 2016 increase to the base rate of the
Corporate Average Fuel Economy (“CAFE”) penalty. They argue that
NHTSA erroneously concluded that the Federal Civil Penalties Inflation
Adjustment Act Improvements Act (the “Improvements Act”) is
inapplicable to the CAFE penalty because it is not a “civil monetary penalty”
as that term is defined by statute. They also contend that NHTSA
improperly reconsidered the merits of the CAFE penalty increase by
evaluating its economic effects. We hold that (1) the CAFE penalty is a civil
monetary penalty under the Improvements Act and (2) NHTSA’s
reconsideration of the economic effects of its initial rule was untimely and
therefore unauthorized. We therefore GRANT the petitions for review and
VACATE the rule.

STEVEN C. WU (Attorney General Letitia
James, Solicitor General Barbara D.
Underwood, Yueh-Ru Chu, on the brief),
New York, NY, for Petitioner State of New
York.
Attorney General Xavier Becerra, David
Zaft, David A. Zonana, Laura J. Zuckerman,

2
Los Angeles, CA, for Petitioner State of
California.
Attorney General William Tong, Matthew I.
Levine, Hartford, CT, for Petitioner State of
Connecticut.
Attorney General Karl A. Racine, Jacqueline
R. Bechara, Washington, DC, for Petitioner
District of Columbia.
Attorney General Kathleen Jennings, Kayli
H. Spialter, Wilmington, DE, for Petitioner
State of Delaware.
Attorney General Kwame Raoul, Bridget
DiBattista, Matthew J. Dunn, Jason E. James,
Daniel I. Rottenberg, Chicago, IL, for
Petitioner State of Illinois.
Attorney General Aaron M. Frey, Laura
Jensen, Augusta, ME, for Petitioner State of
Maine.
Attorney General Brian E. Frosh, Joshua M.
Segal, Roberta R. James, Baltimore, MD, for
Petitioner State of Maryland.
Attorney General Maura Healey,
Christophe Courchesne, Carol Iancu,
Matthew Ireland, David S. Frankel, Megan
M. Herzog, Boston, MA, for Petitioner
Commonwealth of Massachusetts.
Attorney General Gurbir S. Grewal, Jeremy
M. Feigenbaum, Trenton, NJ, for Petitioner
State of New Jersey.

3
Attorney General Ellen F. Rosenblum, Paul
Garrahan, Salem, OR, for Petitioner State of
Oregon.
Attorney General Thomas J. Donovan, Jr.,
Laura B. Murphy, Montpelier, VT, for
Petitioner State of Vermont.
Attorney General Peter F. Neronha, Tricia K.
Jedele, Providence, RI, for Petitioner State of
Rhode Island.
Attorney General Robert W. Ferguson,
Emily C. Nelson, Olympia, WA, for
Petitioner State of Washington.
IAN FEIN (Alexander L. Tom, Gabriel Daly,
on the brief), Natural Resources Defense
Council, San Francisco, CA, for Petitioner
Natural Resources Defense Council.
Vera Pardee, Law Offices of Vera Pardee,
Berkeley, CA, for Petitioner Sierra Club.
DENNIS FAN (Steven G. Bradbury, Paul M. Geier,
Jonathan C. Morrison, Kerry E. Kolodziej, Joseph
H. Hunt, H. Thomas Byron III, on the brief),
Washington, DC, for Respondents.
Ashley C. Parrish, Jacqueline Glassman,
King & Spalding LLP, Washington, DC,
Andrew J. Chinsky, King & Spalding LLP,
Chicago IL, Erika Z. Jones, Daniel E. Jones,
Mayer Brown LLP, Washington, DC, for
Intervenor Alliance for Automotive Innovation.

4
 Richard L. Revesz, Bethany A. Davis Noll,
Max Sarinsky, Jason A. Schwartz, New York
University School of Law, New York, NY,
for The Institute for Policy Integrity at New
York University School of Law as Amicus
Curiae in support of Petitioners.
Joseph Mendelson III, Arlington, VA, for
Tesla, Inc. as Amicus Curiae in support of
Petitioners.

WILLIAM J. NARDINI, Circuit Judge:

During the oil crisis of the 1970s, Congress created a system of fuel

economy standards for automobiles to boost fuel efficiency and drive down

American dependence on foreign energy supplies. To promote those

Corporate Average Fuel Economy (“CAFE”) standards, Congress exposed

automobile manufacturers to penalties if their annual fleets fell short of the

mark. Congress first set the penalty at $5 for every tenth of a mile per gallon

(“mpg”) below the standard, multiplied by the number of cars in a

manufacturer’s fleet, subject to certain offsets.

Inflation, however, can take the bite out of fines. In recognition of this

basic economic phenomenon, Congress enacted laws in 1990, 1996, and 2015

5
to identify civil monetary penalties that were losing ground to inflation and

to periodically update them to catch up with the Consumer Price Index.

After the first act, the National Highway Traffic Safety Administration

(“NHTSA”) and the Office of Management and Budget (“OMB”) identified

the CAFE penalty as among those to be adjusted. Following the 1996 law,

NHTSA engaged in rulemaking that increased the CAFE penalty rate from

$5 to $5.50, and then, following the 2015 law, to $14.

NHTSA shifted gears, however, starting in 2017. First, it indefinitely

delayed implementation of the increase to $14. Acting on a petition for

review, this Court held that the delay violated NHTSA’s statutory authority

and that the increase was therefore in effect for the 2019 model year.1 In

2019, following our decision, NHTSA issued a final rule that rolled back the

penalty to $5.50 on the theory that the inflation-adjustment laws do not

1 Nat. Res. Def. Council v. Nat'l Highway Traffic Safety Admin. (“NRDC v. NHTSA”),
894 F.3d 95, 100, 107–08, 115–16 (2d Cir. 2018).

6
apply to the CAFE penalty in the first place, and that even if they did, an

increase would be unwarranted as a matter of economic policy.

Following this latest move by NHTSA, we are presented with

petitions for review that require us to answer two questions of statutory

construction: (1) whether the penalty for violating the CAFE standards is a

“civil monetary penalty” as defined in these inflation-adjustment laws; and,

if so, (2) whether these laws authorized NHTSA to reconsider, in 2019, the

2016 catch-up inflation adjustment based on its economic effects. We hold

that the CAFE penalty is a “civil monetary penalty” and that NHTSA’s

reversal of the catch-up adjustment was untimely. Accordingly, we grant

the petitions for review and vacate NHTSA’s final rule reversing the CAFE

penalty increase.

7
I. Background

In 1975, Congress enacted the Energy Policy and Conservation Act

(“EPCA”), which, among other things, created the CAFE standards. 2

Congress delegated authority to administer these standards to the Secretary

of Transportation, 3 who then, in turn, delegated that authority to NHTSA. 4

For each model year, NHTSA establishes the CAFE standards as separate

“fuel economy targets for different categories of vehicles, measured in miles

per gallon.” 5 If a manufacturer fails to meet the model year target for a

given category of vehicles, it is subject to a penalty assessed by multiplying

2 Pub. L. No. 94-163, § 301, 89 Stat. 871, 901–16 (1975) (codified as amended at 49
U.S.C. §§ 32901–32919). EPCA’s CAFE provisions were initially codified in Title 15 of the
United States Code. In 1994, Congress collected and recodified transportation laws,
including the CAFE provisions, in Title 49. Revision of Title 49, United States Code
Annotated, “Transportation,” Pub. L. No. 103-272, 108 Stat. 745, 1056–76 (1994).

3 49 U.S.C. § 32902(a).

4 49 C.F.R. § 1.95(a).

NRDC v. NHTSA, 894 F.3d at 101; see also 49 U.S.C. § 32902(b). As relevant to the
5

CAFE penalty, the categories of vehicles are passenger automobiles and non-passenger
automobiles. 49 U.S.C. § 32902(b).

8
the base penalty rate — which Congress initially pegged at $5 6 — by the

amount the manufacturer falls short, as measured by each tenth of an mpg

that the manufacturer’s fleet-wide average mpg is below the standard,

multiplied by the number of vehicles in that fleet. 7 A manufacturer can

reduce its shortfall in compliance by applying “credits,” which may be

earned when a fleet’s average mpg exceeds the CAFE standard for a given

model year or purchased from another manufacturer. 8 EPCA authorizes

NHTSA to make discretionary increases to the base penalty rate if it finds

that certain factors have been met,9 but NHTSA has never acted under this

authority.

6 Pub L. No. 94-163, § 301, 89 Stat. 871, 913.

7 49 U.S.C. § 32912(b).

8 Id. §§ 32903(a), 32912(b). A manufacturer may obtain credits by rolling them
over from years in which it exceeds the applicable CAFE standard, id. § 32903(a);
transferring them from a compliant fleet to a noncompliant fleet, id. § 32903(g); purchasing
them from compliant manufacturers, id. § 32903(f); or proving to the Secretary of
Transportation that it is likely to earn enough credits in the next three years to make up
for the deficiency in the current model year, id. § 32903(b).

9 Id. § 32912(c)(1)(A) (delegation to Secretary); 49 C.F.R. § 1.95(a) (delegation to
NHTSA).

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 In 1990, Congress passed the Federal Civil Penalties Inflation

Adjustment Act (“Inflation Adjustment Act”) to study whether inflation

had diminished the efficacy of “civil monetary penalties,” which Congress

defined as penalties that are (a) either “for a specific monetary amount” or

having “a maximum amount” and (b) “assessed or enforced by an agency

pursuant to Federal law.” 10 This law effectively mandated a research

exercise, requiring the executive branch to submit annual reports to

Congress about existing civil monetary penalties. 11 In July 1991, OMB

submitted a compilation of civil monetary penalties reported by 41 federal

agencies. In that list, NHTSA identified the CAFE penalty as fitting the

statutory definition of civil monetary penalty.12

10 Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410,
§§ 2(a), 3(2), 104 Stat. 890, 890.

11 Id. § 4, 104 Stat. at 891.

12OFF. OF MGMT. & BUDGET, CIVIL MONETARY PENALTY ASSESSMENTS AND
COLLECTIONS: 1990 REPORT TO CONGRESS AND CIVIL MONETARY PENALTY INFLATION
ADJUSTMENT REPORT Ex. 1 at 25, Ex. 2 at 25 (1991).

10
 Congress amended the Inflation Adjustment Act in 1996 to mandate

inflation-related adjustments to “civil monetary penalties,” as defined by

the Inflation Adjustment Act. 13 It directed agencies to adjust each of their

civil monetary penalties for inflation within six months and to continue

doing so “at least once every four years thereafter.” 14 Importantly, however,

the initial adjustment was capped at 10% of the penalty’s base amount. 15 In

1997, pursuant to this amendment, NHTSA increased the base rate for the

CAFE penalty from $5 to $5.50 — the maximum permitted adjustment. 16 In

doing so, NHTSA concluded (as it had in 1991) that the CAFE penalty was

a civil monetary penalty under the Inflation Adjustment Act. NHTSA did

13 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, § 31001(s)(1), 110 Stat. 1321, 1321-373.

14 Id.

15 Id. § 31001(s)(2), 110 Stat. at 1321-373.

16 Civil Penalties, 62 Fed. Reg. 5,167, 5,168 (Feb. 4, 1997). Absent the cap, the
calculations required in the 1996 amendments would have resulted in an increase to a $15
base penalty rate. Pub. L. No. 104-134, § 31001(s)(2), 110 Stat. at 1321-373.

11
not make further increases to the base penalty rate under this authority,

because the statute’s rounding procedure effectively precluded them. 17

In 2015, Congress further amended the Inflation Adjustment Act

through the enactment of the Federal Civil Penalties Inflation Adjustment

Act Improvements Act (the “Improvements Act”), which required new

inflation adjustments and eliminated the provisions that had prevented

certain increases. 18 Like its predecessors, the Improvements Act added

language referencing “civil monetary penalties,” leaving the definition in

the Inflation Adjustment Act unaltered. 19

17 Inflation Adjustment Act § 5(a), 104 Stat. at 891 (requiring that inflation
adjustments under the Inflation Adjustment Act “be rounded to the nearest . . . multiple
of $10 in the case of penalties less than or equal to $100”). In the years following the
increase to $5.50 in 1997, inflation was never high enough to require an increase larger
than $5. Thus, when rounded to the nearest multiple of $10, the required calculation
always zeroed out.

18 Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599–600
(hereinafter “Improvements Act”).

19 Id.

12
 The Improvements Act’s method for calculating inflation

adjustments, however, differed from the previous method in two key ways.

First, it replaced the requirement that agencies calculate inflation

adjustments based on the year in which the penalty was last adjusted with

a requirement that adjustments be calculated based on the year that the

penalty “was established . . . or last adjusted other than pursuant to the

Inflation Adjustment Act.” 20 Second, it changed the rounding rules. Instead

of rounding increases to the nearest $10 figure, it now rounded to the nearest

$1. 21 The Improvements Act required that all federal agencies responsible

20 Civil Penalties, Interim Final Rule, 81 Fed. Reg. 43,524, 43,525 (July 5, 2016)
(emphasis added); compare Improvements Act § 701(b)(2)(B), 129 Stat. at 600 (amending
the Inflation Adjustment Act to calculate the percentage change for inflation based on “the
amount of the civil monetary penalty as it was most recently established or adjusted under a
provision of law other than this Act” (emphasis added)), with Inflation Adjustment Act § 5(b),
104 Stat. at 891–92 (calculating the percentage change for inflation based on the difference
between “the Consumer Price Index for the month of June of the calendar year preceding
the adjustment” and “the Consumer Price Index for the month of June of the calendar year
in which the amount of such civil monetary penalty was last set or adjusted pursuant to law”
(emphasis added)). As relevant to the CAFE penalty, this provision of the Improvements
Act changed the beginning calculation date for inflation from 1997 to 1975.

21 Improvements Act § 701(b)(2)(A), 129 Stat. at 600 (codified at 28 U.S.C. § 2461
note sec. 5(a)).

13
for administering civil monetary penalties make an initial “catch-up”

inflation adjustment to those penalties by July 1, 2016, and annual inflation

adjustments thereafter. 22 Agencies were instructed to calculate the catch-up

adjustment by multiplying each civil monetary penalty amount by the

“percentage . . . by which the Consumer Price Index for the month of

October, 2015 exceed[ed] the Consumer Price Index for the month of

October of the calendar year during which the amount of such civil

monetary penalty was established or adjusted under a provision of law

other than [the Inflation Adjustment Act].” 23 The Improvements Act

capped the initial adjustment at 150% of the existing penalty. 24

22 Improvements Act § 701(b)(1)(A), 129 Stat. at 599 (codified at 28 U.S.C. § 2461
note sec. 4). The catch-up adjustments were to be made through an interim final
rulemaking, published by July 1, 2016, and to go into effect no later than August 1, 2016.
Id. § 701(b)(1)(D), 129 Stat. at 599 (codified at 28 U.S.C. § 2461 note sec. 4(b)(1)(A)–(B)).

23 Improvements Act § 701(b)(2)(B), 129 Stat. at 600 (codified at 28 U.S.C. § 2461
note sec. 5(b)(2)(A)).

24 Improvements Act § 701(b)(2)(B), 129 Stat. at 600 (codified at 28 U.S.C. § 2461
note sec. 5(b)(2)(C)).

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 Though an agency was permitted to apply a lower catch-up

adjustment than otherwise called for by the Improvements Act, it could do

so only if (1) the head of the agency found that increasing the penalty by the

otherwise required amount would create a “negative economic impact” or

result in “social costs” that “outweigh[ed] the benefits” of the required

increase, and (2) OMB concurred in those findings. 25 OMB required that

agencies making such findings submit notice to OMB “no later than May 2,

2016.” 26

On July 5, 2016, pursuant to the Improvements Act, NHTSA

published an interim final rule increasing the base rate of the CAFE penalty

from $5.50 to $14, following the statutory formula for the catch-up

25 Improvements Act § 701(b)(1)(B), 129 Stat. at 599-600 (codified at 28 U.S.C.
§ 2461 note sec. 4(c)(1)–(2)).

Guidance Letter from Office of Management and Budget, at 3 (Feb. 24, 2016),
26

whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2016/m-16-06.pdf.

15
adjustment. 27 The interim final rule provided that the new rate would take

effect on August 4, 2016. 28

On December 28, 2016, NHTSA issued a revised final rule that

confirmed the increase to $14. 29 In response to requests from industry

organizations, however, “NHTSA determined that it would not apply the

new penalty rates retroactively and would instead delay the

implementation of the [higher] penalty rate until model year 2019.” 30

Following the change in administrations, NHTSA temporarily

delayed implementation of the new base penalty rate several times before

27 81 Fed. Reg. at 43,526. The formula for the required adjustment yielded a base
penalty rate of $22, but the 150% cap limited the increase to $13.75, which was then
“rounded to the nearest multiple of $1”: $14. See 28 U.S.C. § 2461 note sec. 5, 81 Fed. Reg.
at 43,526.

28 81 Fed. Reg. at 43,524. NHTSA also applied the Improvements Act’s inflation
calculation to a provision in EPCA that allowed the Secretary of Transportation to increase
the base penalty rate under EPCA, upon making certain findings, subject to a cap of $10.
See 49 U.S.C. § 32912(c)(1)(B); 81 Fed. Reg. at 43,526. The inflation adjustment raised this
cap to $25. 81 Fed. Reg. at 43,526.

29 Civil Penalties, Final Rule, 81 Fed. Reg. 95,489 (Dec. 28, 2016).

30 NRDC v. NHTSA, 894 F.3d at 102; see also 81 Fed. Reg. at 95,490–91.

16
extending the delay indefinitely. 31 The agency issued a final rule (the

“Suspension Rule”) announcing that it intended to reconsider the penalty

increase and soliciting public comments on what an appropriate adjustment

might be. 32 A group of states and environmental organizations sought

review of that delay in this Court. 33 In an opinion issued on June 29, 2018,

we vacated the Suspension Rule, holding that NHTSA had “exceeded its

statutory authority in indefinitely delaying” the rule increasing the base

penalty rate to $14 for the 2019 model year. 34 The penalty increase rule, we

stated, was “now in force.” 35

31 See Civil Penalties, 82 Fed. Reg. 8,694 (Jan. 30, 2017) (initially delaying effective
date to March 28, 2017); Civil Penalties, 82 Fed. Reg. 15,302 (Mar. 28, 2017) (extending
delay to June 26, 2017); Civil Penalties, 82 Fed. Reg. 29,009 (June 27, 2017) (extending delay
to July 10, 2017); Civil Penalties, 82 Fed. Reg. 32,139 (July 12, 2017) (extending delay
“indefinitely pending reconsideration”).

32 82 Fed. Reg. at 32,139, 32,139–40.

33 See NRDC v. NHTSA, 894 F.3d at 100.

34 Id. at 107–08.

35 Id. at 116.

17
 NHTSA responded not by implementing the new rate, but instead by

reconsidering whether the Improvements Act applied to the CAFE penalty

at all. 36 On July 26, 2019, it issued a final rule (the “2019 Final Rule”)

reversing the inflation adjustment to the CAFE penalty from $14 back to

$5.50 based on its conclusion that the CAFE penalty is not a “civil monetary

penalty” within the Improvements Act’s definition. 37 Even if the

Improvements Act applied, NHTSA added, the “negative economic

impact” that any increase in the CAFE penalty would create was sufficient

to support reversing the increase. 38 In an informal letter, OMB concurred

36 Civil Penalties, Final Rule, 84 Fed. Reg. 36,007, 36,007–08, 36,012 (July 26, 2019).

37Id. at 36,012, 36,015. Notwithstanding its conclusion that the CAFE penalty was
not a “civil monetary penalty” under the definition that applies in the Inflation
Adjustment Act, that act’s amendments, and the Improvements Act, NHTSA explained
that due to “practical and legal issues,” it was not reversing its previous inflation
adjustment (made pursuant to the Inflation Adjustment Act in 1997) and going back to
EPCA’s original rate of $5. It noted it was considering a “separate rulemaking” about
whether to take that step. Id. at 36,013 & n.41.

38 Id. at 36,009, 36,013.

18
with NHTSA’s conclusion that the Improvements Act did not apply to the

CAFE penalty. 39

A group of states and the District of Columbia (the “States”) and two

non-governmental organizations, the Natural Resources Defense Council

and the Sierra Club (the “NGOs”), filed timely petitions for review of the

2019 Final Rule. We consolidated the cases, and the Alliance for Automotive

Innovation intervened based on the interests of its members.

II. Discussion

This Court reviews an agency’s final action under the Administrative

Procedure Act. 40 We will “hold unlawful and set aside” any agency action

that is “arbitrary, capricious, an abuse of discretion, or otherwise not in

39 Off. of Mgmt. & Budget, Exec. Off. of the President, Opinion Letter (July 12,
2019).

40 5 U.S.C. § 706.

19
accordance with law”; that is “in excess of statutory . . . authority”; or that

is “without observance of procedure required by law.” 41

The States and NGOs argue that NHTSA’s reversal of the 2016

penalty increase is unlawful because the CAFE penalty is a civil monetary

penalty under the Improvements Act, and because the Act did not permit

agencies to reconsider the effects of their inflation adjustments once certain

statutory time frames had passed. 42 We examine each contention in turn.

A. The CAFE penalty is a “civil monetary penalty.”

We begin, as in all “statutory interpretation disputes, . . . [with] a

careful examination of the ordinary meaning and structure of the law

itself.” 43 To assess “ordinary meaning,” we consider the commonly

41Id. § 706(2); see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 41 (1983); NRDC v. NHTSA, 894 F.3d at 107.

42NHTSA does not argue that the States and NGOs lack standing to challenge
NHTSA’s reversal of the CAFE penalty increase. Nor could it under our holding in NRDC
v. NHTSA, 894 F.3d at 103–05, that the petitioners had standing on the basis of declarations
very similar — and in some instances identical — to those submitted in this case.

43 Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019).

20
understood meaning of the statute’s words “at the time Congress enacted

the statute,” 44 and “with a view to their place in the overall statutory

scheme.” 45 If the meaning is unambiguous, that is the end of our inquiry.

“[O]nly when a statute’s text is ambiguous [may] we turn to other tools of

statutory interpretation to help clarify the ambiguity.” 46

In this case, the phrase of critical importance is “civil monetary

penalty,” as used in the Improvements Act. If the CAFE penalty is not a

“civil monetary penalty,” then NHTSA is correct that the Improvements Act

did not mandate the increase to a $14 base penalty rate. If, on the other

hand, the CAFE penalty is a “civil monetary penalty,” then NHTSA was

required to apply the Improvements Act and adjust the penalty rate

accordingly (unless, of course, one of the Act’s exceptions apply).

44 New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (cleaned up).

45 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (cleaned
up).

46 Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 408 (2d Cir. 2019).

21
 As a preliminary matter, we agree with NHTSA that we did not

decide whether the CAFE penalty is a “civil monetary penalty” in NRDC v.

NHTSA, for the simple reason that the question was not presented to us for

decision. Our pronouncements in that case about the mandatory nature of

the timing in the Improvements Act assumed, without deciding, that the Act

applied to the CAFE penalty. 47 Because we “have not [previously] decided

that the statutory language at issue in this case . . . is unambiguous,” this

question is not water under the bridge. 48

The statutory definition of “civil monetary penalty” is our starting

point:

(2) “civil monetary penalty” means any penalty, fine, or other
sanction that —

(A) (i) is for a specific monetary amount as provided
by Federal law; or

47 See generally 894 F.3d 95.

48Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 510 (2d
Cir. 2017).

22
 (ii) has a maximum amount provided for by
Federal law; and

(B) is assessed or enforced by an agency pursuant to
Federal law; and

(C) is assessed or enforced pursuant to an administrative
proceeding or a civil action in the Federal courts . . . . 49

EPCA, in turn, defines the CAFE penalty as follows:

(b) Penalty for manufacturer violations of fuel economy standards. —
Except as provided in subsection (c) of this section, a manufacturer
that violates a standard prescribed for a model year under section
32902 of this title is liable to the Government for a civil penalty of $5
multiplied by each .1 of a mile a gallon by which the applicable
average fuel economy standard under that section exceeds the
average fuel economy —

(1) calculated under section 32904(a)(1)(A) or (B) of this title for
automobiles to which the standard applies manufactured by
the manufacturer during the model year;

(2) multiplied by the number of those automobiles; and

(3) reduced by the credits available to the manufacturer under
section 32903 of this title for the model year. 50

49 28 U.S.C. § 2461 note sec. 3(2).

50 49 U.S.C. § 32912(b).

23
 It is undisputed that the CAFE penalty is “assessed and enforced by

an agency” (NHTSA) “pursuant to Federal law” (EPCA), as required by

subsection (2)(B) of the Improvements Act, and that the CAFE penalty is

“assessed or enforced pursuant to an administrative proceeding or a civil

action in the Federal courts,” as required by subsection (2)(C). 51 The inquiry

therefore turns on whether the CAFE penalty is “for a specific monetary

amount” under subsection (2)(A). 52 We conclude that it is.

As relevant here, the base rate used to calculate the CAFE penalty is

very specific, and it is framed in terms of a particular monetary amount: It

is a fixed dollar figure, which Congress originally established at $5 when it

enacted EPCA, and which NHTSA later increased by rulemaking to $5.50

and later to $14. Although the dollar figure has been updated twice, it has

51 28 U.S.C. § 2461 note sec. 3.

52 The petitioners also argue that the CAFE penalty satisfies subsection (2)(A)(ii)
because it “has a maximum amount provided for by Federal law.” Because we hold that
the CAFE penalty is “for a specific amount” under subsection (2)(A)(i), we need not reach
that argument.

24
always been clearly identified and has never been ambiguous. Moreover,

the base rate is just that — a fixed dollar rate that is used as a multiplier to

determine the overall penalty to be assessed against a noncompliant

manufacturer. The fact that the CAFE penalty’s base rate is what NHTSA

describes as “an input in a formula” 53 does not exclude it from the

Improvements Act’s definition of a “civil monetary penalty.” A penalty can

be “specific” if it is based on a rate with an identified dollar amount; and the

use of a rate necessarily implies that the rate will be multiplied by

something.

This interpretation comports with how other agencies have

consistently construed the Improvements Act to apply to civil monetary

penalties that are calculated using formulas, including by multiplying a

particular dollar amount by some other ascertainable figure, such as the

53 NHTSA Br. at 24.

25
number of violations, days in violation, or units in violation. 54 Thus, even

assuming that NHTSA is correct that the CAFE penalty should be

conceptualized as the total amount for which a manufacturer is liable after

conducting all the calculations set forth in § 32912(b), that final amount is

still based on a fixed-dollar multiplier and is therefore “for a specific

monetary amount.”

That manufacturers can lower a penalty amount by applying credits

does not change our assessment. Under EPCA, credits are not a means of

54 See, e.g., Civil Monetary Penalty Adjustments for Inflation, 81 Fed. Reg. 42,987,
42,994 (July 1, 2016) (Department of Homeland Security increasing, pursuant to the
Improvements Act, the baseline penalty for discharge of oil or a hazardous substance in
violation of 33 U.S.C. § 1321(b)(7)(D) from $4,000 to $5,345 “per barrel of oil or unit
discharged,” as listed in 33 C.F.R. § 27.3); Civil Monetary Penalty Adjustments for
Inflation, 84 Fed. Reg. 13,499, 13,510 (Apr. 5, 2019) (Department of Homeland Security
increasing, pursuant to the Improvements Act, the base penalty rate for towing vessels in
violation of 46 U.S.C. § 55111 from “$60 per ton of the towed vessel” to “$159 per ton of
the towed vessel,” as listed in 19 C.F.R. § 4.92); Civil Monetary Penalties Inflation
Adjustment, 81 Fed. Reg. 41,196, 41,197, 41,199–200 (June 24, 2016) (Federal Election
Commission increasing, pursuant to the Improvements Act, the base figures for the
penalties in 11 C.F.R. § 111.43, which are calculated by selecting the applicable base
penalty amount based on the level of monetary activity involved, adding that base dollar
figure to the product of a base penalty rate multiplied by the number of days that a late-
filed report was overdue, and multiplying this sum by the product of a calculation based
on the number of previous violations).

26
paying a penalty, but are themselves a method of complying with the CAFE

standard. The statute states that “[c]ompliance is determined after

considering credits available to the manufacturer under section 32902 of this

title.” 55 In § 32912(b), overcompliance with the CAFE standards (which a

manufacturer may earn or purchase from another manufacturer) is netted

out against undercompliance, yielding what is effectively a total net

violation. It is this total net violation that is multiplied by the CAFE base

penalty rate to yield the aggregate penalty. Credits are therefore just one

more input in the CAFE penalty formula, not unlike the number of vehicles

in a manufacturer’s fleet or a manufacturer’s mpg shortfall. Accordingly,

this credit system does not push the CAFE penalty beyond the

Improvements Act’s reach.

Context provides additional support for our reading. 56 The statutory

purpose of the Improvements Act is to adjust civil monetary penalties to

55 49 U.S.C. § 32911(b) (emphasis added).

56 See Nat’l Ass’n of Home Builders, 551 U.S. at 666.

27
keep pace with inflation. 57 Whether a statute describes a penalty as a

standalone dollar figure or as a dollar amount to be multiplied by other

factors, that penalty will lose value over time as inflation creeps up. 58 And

regardless of whether the dollar figure is to be multiplied by the number of

violations, days of violation, or some other increment of noncompliance, it

remains equally vulnerable to inflation – and therefore equally suited to

indexing for inflation. For these reasons, the CAFE penalty is a “civil

monetary penalty” under the Improvements Act. 59

57 See Improvements Act § 701, 129 Stat. at 599–600.

58 NHTSA argues that the CAFE penalty has not been weakened by inflation
because periodic increases to the fuel efficiency targets have increased the monetary value
of the penalty over time. This argument, however, fails to recognize that the fuel
efficiency targets are designed to keep pace with scientific feasibility rather than inflation.
See 49 U.S.C. § 32902. Keeping scientific feasibility constant, the CAFE penalty has indeed
lost ground to inflation because the base rate has been the same since 1997. And while
the 2019 Final Rule also points out that the penalty per gallon of gas consumed will
increase as vehicles become more fuel efficient, 84 Fed. Reg. at 36,018, it is for Congress
(not NHTSA) to decide whether that fact requires exempting the CAFE penalty from
inflation adjustment.

59 This conclusion applies with equal force to the $10 cap found in the EPCA
provision that permits the Secretary of Transportation to increase the base penalty rate.
See 49 U.S.C. § 32912(c)(1)(A)–(B). To account for inflation, that cap must be increased to
$25. See 81 Fed. Reg. at 43,526. Indeed, if the cap is not subject to the Improvements Act,

28
 NHTSA argues that to the extent there is ambiguity as to whether the

CAFE penalty constitutes a “civil monetary penalty,” we should resolve it

in favor of the agency’s 2019 Final Rule, giving deference to the agency’s

interpretation under Chevron or, at least, Skidmore. 60 Because we have found

no ambiguity in the statute, neither form of agency deference is implicated.

But even if we agreed with NHTSA that the meaning of “civil monetary

penalty” was ambiguous when the Inflation Adjustment Act was passed,

any ambiguity would have been resolved when Congress enacted the

Improvements Act, which re-used the phrase “civil monetary penalty”

without alteration after NHTSA had consistently applied it to the CAFE

penalty. 61 As the Supreme Court has instructed, “[w]hen administrative . . .

then EPCA’s grant of discretion to the Secretary would be rendered a nullity as the
penalty’s new base rate of $14 is already above the cap’s original $10 limit.

See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984);
60

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (“Congress’ repetition of a well-
61

established term carries the implication that Congress intended the term to be construed
in accordance with pre-existing regulatory interpretations.”); Haig v. Agee, 453 U.S. 280,
297 (1981) (assuming congressional awareness and adoption of “longstanding

29
interpretations have settled the meaning of an existing statutory provision,

repetition of the same language in a new statute indicates, as a general

matter, the intent to incorporate its administrative . . . interpretations as

well.” 62 Justice Frankfurter once said that “if a word is obviously

transplanted from another legal source, whether the common law or other

legislation, it brings the old soil with it.” 63 It’s also fair to say that when

administrative construction” of legislation enacted by prior congress where “[t]here is no
evidence of any intent to repudiate” the construction); Fed. Deposit Ins. Corp. v. Philadelphia
Gear Corp., 476 U.S. 426, 437 (1986) (“When the statute giving rise to the longstanding
interpretation has been reenacted without pertinent change, the congressional failure to
revise or repeal the agency's interpretation is persuasive evidence that the interpretation
is the one intended by Congress.” (internal quotation marks omitted)).

62 Bragdon, 524 U.S. at 645; see Lorillard v. Pons, 434 U.S. 575, 581 (1978)
(“[W]here . . . Congress adopts a new law incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of the interpretation given to the
incorporated law, at least insofar as it affects the new statute.”); New York v. U.S. Dep’t of
Homeland Sec., Nos. 19-3591, 19-3595, mem. op. at 56–58 (2d Cir. Aug. 4, 2020) (considering
the “settled meaning” of a statutory provision based on previous administrative and
judicial constructions); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 322 (2012)
(“If a statute uses words or phrases that have already received . . . uniform construction
by . . . a responsible administrative agency, they are to be understood according to that
construction.”).

63 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV.
527, 537 (1947), quoted in Stokeling v. United States, 139 S. Ct. 544, 551 (2019); see also Garcia
v. Teitler, 443 F.3d 202, 207 (2d Cir. 2006) (“We should assume that Congress legislated

30
Congress plants the same seed in the same soil, it can expect the same plant

to grow.

By the time Congress enacted the Improvements Act in 2015, the term

“civil monetary penalty” had a settled legal meaning — both in terms of its

statutory definition generally and its application to the CAFE penalty

specifically. The term was originally used in the Inflation Adjustment Act

of 1990, which adopted the definition currently in use. 64 In its report to OMB

following Congress’s enactment of the Inflation Adjustment Act, NHTSA

identified the CAFE penalty as a “civil monetary penalty.” 65 Congress then

reused that phrase — subject to the same definition — in the 1996

amendments that required agencies to increase their “civil monetary

against a background of law already in place and the historical development of that law.”
(internal quotation marks and ellipsis omitted)).

64 Inflation Adjustment Act § 3(2), 104 Stat. at 890.

65OFF. OF MGMT. & BUDGET, CIVIL MONETARY PENALTY ASSESSMENTS AND
COLLECTIONS: 1990 REPORT TO CONGRESS AND CIVIL MONETARY PENALTY INFLATION
ADJUSTMENT REPORT Ex. 1 at 25, Ex. 2 at 25 (1991).

31
penalties” to account for inflation. 66 Most importantly, in 1997, NHTSA

promulgated a final rule that increased the base rate for the CAFE penalty

from $5 to $5.50 based on its application of the 1996 amendments. 67 Thus,

when Congress used the phrase “civil monetary penalties” for the third

time, in the 2015 Improvements Act, the term had already received a

particular administrative construction — that it encompassed the CAFE

penalty, despite its use of a formula, including multipliers and a credit

offset. 68 By the time of the 2015 enactment, any arguable question over

66 Pub. L. No. 104-134, § 31001(s)(1), 110 Stat. at 1321-373.

67 62 Fed. Reg. at 5,168.

68 The actions of other relevant entities after adoption of the “civil monetary
penalties” definition in the Inflation Adjustment Act in 1990, and before enactment of the
2015 Improvements Act, were consistent with the view that the CAFE penalty is a “civil
monetary penalty.” For example, in 2003, the U.S. General Accounting Office (now the
Government Accountability Office) cited the CAFE penalty as a civil monetary penalty
that no longer created sufficient deterrence and needed an inflation adjustment. U.S.
GENERAL ACCOUNTING OFFICE, AGENCIES UNABLE TO FULLY ADJUST PENALTIES FOR
INFLATION UNDER CURRENT LAW 2, 29 (2003), gao.gov/assets/240/237592.pdf. A few years
later, the Congressional Research Service highlighted the same issue, also identifying the
CAFE penalty as a civil monetary penalty covered under the Inflation Adjustment Act.
CURTIS W. COPELAND, CONG. RESEARCH SERV., ADJUSTMENT OF CIVIL MONETARY
PENALTIES FOR INFLATION 9 (2008). Even the Alliance of Automobile Manufacturers and
the Association of Global Automakers, which now comprise the intervenor, the Alliance
for Automotive Innovation, conceded that the CAFE penalty was a “civil monetary

32
whether the CAFE penalty was a “civil monetary penalty” covered by the

Improvements Act had been settled in the affirmative. 69

penalty” under the Improvements Act when they initially petitioned for reconsideration
of the 2016 increase to the base penalty rate.

NHTSA draws our attention to only one instance in which an agency has not listed
the CAFE penalty as a “civil monetary penalty”: a 1988 study that the President’s Council
on Integrity and Efficiency submitted to the Senate. See OMB, Letter of Concurrence, at 6
& n.34 (July 12, 2019), whitehouse.gov/wp-content/uploads/2019/07/
NHTSA.pdf. But that study preceded adoption of the Inflation Adjustment Act in 1990
and therefore can hardly be considered an authoritative construction of that act.

69We add that Chevron deference to NHTSA’s interpretation of the Improvements
Act is, in any event, “clearly not warranted,” because “the Act applies to all federal
agencies, meaning [that] NHTSA has no special expertise in interpreting its language.”
NRDC v. NHTSA, 894 F.3d at 112 n.10. Moreover, NHTSA’s authority to interpret EPCA
does not provide reason to afford its interpretation Chevron deference because its
interpretation of EPCA “limits the work of [the Improvements Act, which] . . . it does not
administer.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1629 (2018).

Nor do we owe Chevron deference to OMB’s new interpretation of the
Improvements Act. Although Congress delegated authority to OMB to “issue guidance
to agencies on implementing the inflation adjustments required” under the Improvements
Act, 28 U.S.C. § 2461 note sec. 7(a), OMB did not issue such formal guidance here. Instead,
all OMB did was issue an informal opinion letter to the Secretary of Transportation. See
Off. of Mgmt. & Budget, Exec. Off. of the President, Opinion Letter (July 12, 2019). Such
a letter does not carry the force of law, so it is not entitled to Chevron deference. See
Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“Interpretations such as those in
opinion letters—like interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style
deference.”); see also Buffalo Transp., Inc. v. United States, 844 F.3d 381, 385 (2d Cir. 2016).

33
 Finally, our conclusion that the CAFE penalty is a “civil monetary

penalty” does not conflict with EPCA. NHTSA and the intervenor, Alliance

for Automotive Innovation, argue that the Improvements Act does not

apply to the CAFE penalty because its directive to increase civil monetary

penalties conflicts with the limitations on penalty increases in EPCA. But as

we have previously recognized, “[n]othing in EPCA contradicts or

undermines th[e] mandate” in the Improvements Act to increase civil

monetary penalties. 70 EPCA merely authorizes discretionary increases to

the CAFE penalty base rate under certain conditions. 71 The penalty-increase

provisions of the Improvements Act and EPCA “are capable of co-

70NRDC v. NHTSA, 894 F.3d at 112 (“In implementing the Improvements Act,
Congress articulated purposes that transcended the confines of any given agency’s
regulatory functions . . . [and] ECPA does not contravene this government-wide policy.”).

71 See 49 U.S.C. § 32912(c)(1)(A) (“The Secretary of Transportation shall prescribe
by regulation a higher amount for each .1 of a mile a gallon to be used in calculating a civil
penalty . . . if the Secretary decides that the increase in the penalty . . . will result in, or
substantially further, substantial energy conservation for automobiles . . . and . . . will not
have a substantial deleterious impact on the economy of the United States, a State, or a
region of a State.”).

34
existence,” and it is therefore our “duty” to interpret the provisions in a

manner that renders “each . . . effective.” 72

B. The Improvements Act did not authorize NHTSA to reconsider
the economic effects of its rule outside the timeline specified by
Congress.

Having concluded that the Improvements Act mandates an inflation

adjustment to the CAFE penalty, we now consider whether — in 2019 —

NHTSA was permitted to reconsider the economic effects of the increase it

had already promulgated in 2016. We reject NHTSA’s argument that, at the

time it issued the 2019 Final Rule, it was permitted to reverse the penalty

increase on the grounds that the increase would create a “negative economic

impact.” 73

The Improvements Act outlined a “highly circumscribed schedule for

. . . penalty increases.” 74 NHTSA maintains that although the Improvements

72 FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 304 (2003) (quoting J.E.M. Ag
Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 143–44 (2001)).

73 See 84 Fed. Reg. at 36,013.

74 NRDC v. NHTSA, 894 F.3d at 109 (cleaned up).

35
Act includes a deadline for the publication of an interim final rule, “nothing

in the statute imposes a deadline on any final rule following further

comments or consideration in that interim final rule-making.” 75 It is true

that the Act permitted agencies to “adjust the amount of a civil monetary

penalty by less than the otherwise required amount [for the initial catch-up

adjustment] . . . after publishing a notice of proposed rulemaking and

providing an opportunity for comment,” so long as the agency met certain

requirements. 76 But this provision did not give the agency an unlimited

amount of time to reconsider its initial catch-up adjustment. The time-

sensitive nature of the final rule is clear in the full context of the

Improvements Act, which requires not only an interim final rule increasing

each penalty by “no[] later than July 1, 2016,” but also additional increases

to each penalty by “no[] later than January 15 of every year thereafter.” 77 In

75 NHTSA Br. at 36 (emphases added and removed).

76 28 U.S.C. § 2461 note sec. 4(c).

77 Id. § 2461 note sec. 4(a).

36
other words, the annual increases starting in 2017 would necessarily build

on the initial catch-up adjustment. Thus, even if we agreed with NHTSA

that the Improvements Act permitted reconsideration of the catch-up

increase following its publication of an interim final rule, the window for

that reconsideration was narrow and limited to the year 2016 — or more

precisely, two weeks into the next year, before the next required increase

due by January 15, 2017. As in NRDC v. NHTSA, we cannot here “read the

Improvements Act to permit the very kind of indefinite delay that it was

enacted to end.” 78

We need not reach the merits of NHTSA’s conclusions regarding

negative economic impact because it was not authorized to undertake this

reconsideration at the time it did so. 79

78 894 F.3d at 111.

79 In light of our holding, we also need not reach the other arguments raised by
the petitioners to challenge the 2019 Final Rule. See, e.g., Time Warner Cable Inc. v. FCC,
729 F.3d 137, 171 n.18 (2d Cir. 2013).

37
III. Conclusion

In sum, we hold as follows:

1. The CAFE penalty established pursuant to EPCA, 49 U.S.C.

§ 32912(b), is for a “specific monetary amount” and thus constitutes a “civil

monetary penalty” for purposes of the Improvements Act, 28 U.S.C. § 2461

note sec. 3. NHTSA did not act in accordance with law when it reached the

contrary conclusion in its 2019 Final Rule and reversed its initial catch-up

inflation adjustment.

2. The Improvements Act provided a limited window of time for

NHTSA to reduce the initial catch-up inflation adjustment to the CAFE

penalty based on a conclusion that the increase would have a negative

economic impact, pursuant to 28 U.S.C. § 2461 note sec. 4(c). By 2019, that

window had closed, and NHTSA acted in excess of its statutory authority

when it reconsidered and reversed its prior increase of the CAFE penalty

from $5.50 to $14, based on an assessment of economic consequences.

38
 We therefore grant the petitions for review and vacate the 2019 Final

Rule. As we have stated before: The Civil Penalties Rule, 81 Fed. Reg. 95,489,

95,489–92 (Dec. 28, 2016), raising the CAFE base penalty rate to $14, is now

in force. 80

80 See NRDC v. NHTSA, 894 F.3d at 116.

39