United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2007 Decided June 1, 2007
No. 06-1023
NATIONAL ASSOCIATION OF CLEAN AIR AGENCIES,
PETITIONER
V.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
On Petition for Review of a Final Action of the
Environmental Protection Agency
Emma E. Garrison argued the cause for petitioner. With
her on the briefs was Hope M. Babcock.
Steven E. Rusak, Attorney, United States Department of
Justice, argued the cause for respondent. With him on the brief
were John C. Cruden, Deputy Assistant Attorney General, and
Michael W. Thrift, Counsel, U.S. Environmental Protection
Agency.
David A. Berg, Mac S. Dunaway, and Thomas Richichi were
on the brief for amici curiae Air Transport Association of
America, Inc. and Aerospace Industries Association in support
of respondent.
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Before: GRIFFITH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
Edwards.
EDWARDS, Senior Circuit Judge: The Environmental
Protection Agency (“EPA”) issued a final rule increasing the
stringency of the oxides of nitrogen (“NOx”) emission standards
applicable to newly certified commercial aircraft gas turbine
engines under § 231 of the Clean Air Act (“CAA” or “Act”), 42
U.S.C. § 7571. See Control of Air Pollution From Aircraft and
Aircraft Engines; Emission Standards and Test Procedures, 70
Fed. Reg. 69,664 (Nov. 17, 2005) (“Final Rule”). Arguing that
the Final Rule did not go far enough, the National Association
of Clean Air Agencies (“NACAA”), a national trade association
that represents state and local governmental agencies
responsible for achieving and sustaining clean air, petitions for
review. Specifically, NACAA argues that EPA’s interpretation
of the Act – that § 231 does not require the agency to
subordinate all other concerns to emissions reduction and reach
a “technology-forcing” result – constitutes an impermissible
construction of the Act. Petitioner also argues that the Final
Rule is arbitrary and capricious because it relies upon an
insufficient time rationale, fails to establish a firm timeline for
tightening standards in the future, considers safety concerns with
little explanation, and departs from EPA’s practice of setting
production cut-off dates. EPA defends the Final Rule and
argues that NACAA lacks standing to challenge it.
Although we conclude that NACAA has standing, we find
no merit in the petition for review. We hold that EPA’s
interpretation of § 231 is not manifestly contrary to the CAA
and that the agency did not otherwise act arbitrarily and
capriciously in promulgating the Final Rule. Most of the
arbitrary and capricious claims raised by NACAA are not
properly before the court, because they were never raised with
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EPA. NACAA’s preserved claim that the Final Rule departs
from EPA’s practice of setting production cut-off dates lacks
merit because the Final Rule provides a reasoned explanation for
the agency’s change in course. Because we find that none of
NACAA’s claims are meritorious, we deny the petition for
review in all respects.
I. BACKGROUND
The Clean Air Act establishes “a joint state and federal
program for regulating the nation’s air quality.” Envtl. Def. v.
EPA, 467 F.3d 1329, 1331 (D.C. Cir. 2006) (internal quotation
marks omitted). The CAA requires EPA to promulgate, review,
and revise National Ambient Air Quality Standards
(“NAAQS”), specifying maximum levels of certain air
pollutants in the ambient air. See 42 U.S.C. § 7409. “States, in
turn, are required to adopt State Implementation Plans (‘SIPs’)
that ‘provide[] for implementation, maintenance, and
enforcement of [NAAQS] . . . .’” Envtl. Def., 467 F.3d at 1331
(quoting 42 U.S.C. § 7410(a)(1)). “States that fail to comply
with th[is] requirement[] are subject to various sanctions . . . .”
Appalachian Power Co. v. EPA, 249 F.3d 1032, 1037 (D.C. Cir.
2001) (per curiam) (citing 42 U.S.C. § 7509).
Section 231 of the CAA requires the Administrator of EPA
to study and investigate emissions of air pollutants from aircraft,
considering such emissions’ effect on air quality and the
“technological feasibility” of controlling them. 42 U.S.C.
§ 7571(a). The Administrator shall then, “from time to time,
issue proposed . . . standards applicable to the emission of any
air pollutant from . . . aircraft engines which in his judgment
causes, or contributes to, air pollution which may reasonably be
anticipated to endanger public health or welfare.” Id.
§ 7571(a)(2)(A). After holding public hearings, the
Administrator must “issue such regulations with such
modifications as he deems appropriate.” Id. § 7571(a)(3).
Section 231 also authorizes the Administrator to revise such
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regulations “from time to time,” but mandates that he “not
change the . . . standards if such change would significantly
increase noise and adversely affect safety.” Id. § 7571(a)(2)(B),
(a)(3); see also id. § 7571(c) (establishing additional procedure
focused on aircraft safety). Furthermore, “[a]ny regulation
prescribed under [§ 231] . . . shall take effect after such period
as the Administrator finds necessary . . . to permit the
development and application of the requisite technology, giving
appropriate consideration to the cost of compliance within such
period.” Id. § 7571(b). This power to set standards resides in
EPA alone: “No State or political subdivision thereof may adopt
or attempt to enforce any standard respecting emissions of any
air pollutant from any aircraft or engine thereof unless such
standard is identical to [the federal] standard.” Id. § 7573.
EPA does not regulate on a blank slate. “[B]y virtue of
being a party to” the Chicago Convention on International Civil
Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295, the
United States is a member of the United Nations International
Civil Aviation Organization (“ICAO”). Wardair Canada Inc. v.
Fla. Dep’t of Revenue, 477 U.S. 1, 9-10 (1986). “As long as a
participating nation . . . adopts [domestic] aircraft emission
standards that are equal to or more stringent than ICAO’s
[environmental] standards,” aircraft belonging to that nation “are
permitted to travel through the airspace of other countries
without any restriction.” Final Rule, 70 Fed. Reg. at 69,667.
But any one of the approximately 190 contracting nations “can
ban use within its airspace of any aircraft that does not meet
ICAO standards.” Id. In 1981, ICAO first adopted standards
governing emissions of NOx, a precursor to the formation of
ozone and cause of acid rain, eutrophication, plant damage, and
visibility impairment. Id. at 69,667-68, 69,672-73. In 1993,
ICAO approved a proposal to tighten the 1981 ICAO standards
by 20%. See id. at 69,667. EPA altered its regulations to adopt
the 1993 ICAO standards in 1997. Id. ICAO approved an
additional 16% NOx reduction in 1999. Id.
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On September 30, 2003, approximately three months before
the 1999 ICAO standards were set to take effect, EPA published
a notice of proposed rulemaking declaring its intent to “adopt
standards equivalent to the [1999] NOx standards of [ICAO], and
thereby bring the United States emission standards into
alignment with the internationally adopted standards.” See
Control of Air Pollution From Aircraft and Aircraft Engines;
Emission Standards and Test Procedures, 68 Fed. Reg. 56,226,
56,226 (Sept. 30, 2003) (“NPRM”). After EPA held a public
hearing on the NPRM and after the close of the written comment
period, ICAO again lowered permissible NOx emissions, this
time by approximately 12%, and slated the new standards to
take effect after December 31, 2007. Final Rule, 70 Fed. Reg.
at 69,677. The Final Rule, issued in November 2005, amends
EPA regulations to reflect the 1999 ICAO standards (a 16%
reduction from the previous EPA standards), not the more
stringent reduction approved by ICAO during the pendency of
the rulemaking. Id. at 69,667, 69,677.
The Final Rule recognizes that the new standards “will not
impose any additional burden on manufacturers,” because “94
percent of all engine models currently in production already
meet the [1999 ICAO] standards.” Id. at 69,675. The Final
Rule also acknowledges ICAO’s 2005 standards and states that
“[m]ore stringent standards . . . will likely be necessary and
appropriate in the future.” Id. at 69,676-78. But it reasons that
“assess[ing] the costs (and emission benefits) of more stringent
standards” would have required additional time that EPA did not
then have “since [it had] already gone past the implementation
date of the [1999 ICAO] standards.” Id. at 69,675, 69,677-78.
The Final Rule ultimately justifies its adoption of the 1999
ICAO standards as “aimed at assuring that . . . progress is not
reversed in the future” and as part of an “ongoing phased
approach . . . to address[ing] emissions from aircraft engines.”
Id. at 69,675-77.
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In a similar vein, the Final Rule extends the 1999 ICAO
standards only to newly certified engine models, not to newly
manufactured engines of already certified models. Id. at 69,678.
Although the Final Rule recognizes that EPA has “historically
adopted production cut-offs for previous standards,” it
distinguishes the “unique case” of aircraft engine emissions. Id.
at 69,681. Because ICAO did not apply its 1999 standards to
newly manufactured engines of already certified models, id. at
69,678, the Final Rule reasons that “to apply [the 16%
reduction] to [those engines] (a production cut-off) could be
disruptive to the production planning of engine manufacturers,”
id. at 69,680-81. Moreover, “[to] develop a record that fully
analyzes the emissions benefits (if any) and the implementation
costs of [wider applicability]” would “unacceptably slow down
th[e] rulemaking.” Id. at 69,681. The Final Rule concludes:
“[I]n the interests of expediency and of bringing U.S. domestic
law into conformity with . . . obligations under the Chicago
Convention (albeit tardily), . . . the most appropriate course for
now . . . is to simply update [EPA] regulations to track [the 1999
ICAO standards] in terms of both stringency levels and scope of
applicability.” Id.
The Final Rule interprets § 231 of the CAA to authorize this
“ongoing phased approach”:
EPA interprets its authority under section 231 to be
somewhat similar to those provisions that require us to
identify a reasonable balance of specified emissions
reduction, cost, safety, noise, and other factors. However,
we are not compelled under section 231 to obtain the
“greatest degree of emission reduction achievable” as per
[other provisions of the CAA], and so EPA does not
interpret the Act as requiring the agency to give subordinate
status to factors such as cost, safety, and noise in
determining what standards are reasonable for aircraft
engines. Rather, EPA has greater flexibility under section
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231 in determining what standard is most reasonable for
aircraft engines, and is not required to achieve a
“technology-forcing” result.
Id. at 69,676 (internal citation omitted). The Final Rule also
notes that “there is an added emphasis [in § 231] on the
consideration of safety. Therefore, it is reasonable for EPA to
give greater weight to considerations of safety in this context
than it might in balancing emissions reduction, cost, and energy
factors under other [CAA] provisions.” Id. (internal citations
omitted). EPA promulgated the Final Rule on November 17,
2005.
On January 13, 2006, State and Territorial Air Pollution
Program Administrators and Association of Local Air Pollution
Control Officials filed a petition for review of the Final Rule.
The two organizations have since merged to form NACAA.
II. ANALYSIS
A. Standing
At the outset, we must address EPA’s contention that
NACAA has failed to demonstrate standing to challenge the
Final Rule, and that this court thus lacks jurisdiction to entertain
the petition for review. See Byrd v. EPA, 174 F.3d 239, 243
(D.C. Cir. 1999) (citing Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998)). “Associations such as petitioner[] have
representational standing under Article III if (1) at least one of
their members has standing, (2) the interests the association
seeks to protect are germane to its purpose, and (3) neither the
claim asserted nor the relief requested requires the participation
of an individual member in the lawsuit.” Am. Library Ass’n v.
FCC, 406 F.3d 689, 696 (D.C. Cir. 2005). Since EPA does not
contest that NACAA satisfies “the germaneness [and]
individual-participation element[s] of [representational]
standing, and because ‘we [too] have [no] reason to believe’”
that NACAA fails to satisfy these “‘latter two requirements,’”
8
Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C.
Cir. 2004) (per curiam) (quoting Sierra Club v. EPA, 292 F.3d
895, 898 (D.C. Cir. 2002)), we focus solely upon whether “at
least one of [NACAA’s] members has standing to sue in [its]
own right,” Natural Res. Def. Council v. EPA, 464 F.3d 1, 5-6
(D.C. Cir. 2006).
“The ‘irreducible constitutional minimum of standing’ has
three elements: (1) injury in fact, (2) causation, and (3)
redressability.” GrassRoots Recycling Network, Inc. v. EPA,
429 F.3d 1109, 1111-12 (D.C. Cir. 2005) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Although
EPA makes a halfhearted attempt to contest the final two
elements, see Respondent’s Br. at 21 n.8, “[t]he only thing at
issue in this case is the injury-in-fact prong of Article III
standing, for causation and redressability are obvious if
petitioner[] can demonstrate injury,” Am. Library Ass’n v. FCC,
401 F.3d 489, 493 (D.C. Cir. 2005). In order to demonstrate
injury, “petitioner[] must show that there is a substantial
probability that [EPA’s Final Rule] will harm the concrete and
particularized interests of at least one of [its] members.” Am.
Library Ass’n, 406 F.3d at 696 (internal quotation marks
omitted).
Through references to the administrative record and an
affidavit submitted with its opening brief, NACAA adequately
demonstrates that, by failing to further tighten restrictions on
NOx, the Final Rule makes it more difficult for state air pollution
control agencies to establish SIPs. In other words, since the
federal NAAQS cap the total allowable NOx, when EPA allows
higher NOx emissions from aircraft engines, state agencies have
no choice but to impose greater restrictions on other sources of
NOx. And if NACAA’s member agencies fail to meet the
applicable standard, their states are exposed to federal sanctions.
EPA essentially concedes these facts, but disputes their
jurisdictional significance, arguing that since “the burden at
9
most can be understood as affecting the mix of controls a State
may need to impose,” the Final Rule “does not require States
and local agencies to do anything as regulators that they were
not already directed to do.” Respondent’s Br. at 17-18.
We have little difficulty concluding that NACAA has
satisfied the injury-in-fact requirement of Article III standing.
In West Virginia v. EPA, petitioners sought review of EPA rules
requiring various states to revise state implementation plans as
to NOx emissions and establishing emission limits for major
NOx sources. 362 F.3d 861, 865-67 (D.C. Cir. 2004). The
effect of the rules was to lower the states’ emission budgets.
(“Budgets” represent the amount of allowable NOx emissions.)
We found that “[t]he lower the emissions budget, the more
difficult and onerous is the states’ task of devising an adequate
SIP.” Id. at 868. We therefore held that the state petitioners in
that case had demonstrated injury where EPA lowered states’
total NOx emissions budgets, requiring states to revise their SIPs
to impose additional controls. Id.
The standing issue in this case is controlled by our rationale
and judgment in West Virginia. Here, by allegedly raising (or
failing to lower) the emissions allocated to one source, the Final
Rule requires states to impose stricter controls on emissions
from other individual sources. In other words, the Final Rule
makes it “more difficult and onerous” for the states to “devis[e]
an adequate SIP.” Id. Because there is a substantial probability
that EPA’s action will harm the interests of NACAA’s state
agency members, NACAA has standing to challenge the Final
Rule and we have jurisdiction to consider the merits of the
petition. See also Massachusetts v. EPA, 127 S. Ct. 1438, 1454-
55 (2007) (stating that states are “entitled to special solicitude in
. . . standing analysis”).
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B. Standard of Review
Since EPA acted pursuant to delegated authority, we review
its interpretation of § 231 according to the principles enunciated
in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Chevron instructs us to accord
agency interpretations of statutes they administer varying
degrees of deference. Under Chevron Step One, we always first
examine the statute de novo, “employing traditional tools of
statutory construction.” Id. at 843 n.9. “If the intent of
Congress is clear,” we accord the agency’s interpretation no
deference, “for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Id. at 842-
43. But if Congress “has [not] directly spoken to the precise
question at issue,” id. at 842, we proceed to Chevron Step Two.
Under Step Two, “[i]f Congress has explicitly left a gap for the
agency to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by
regulation. Such legislative regulations are given controlling
weight unless they are . . . manifestly contrary to the statute.”
Id. at 843-44. Where a “‘legislative delegation to an agency on
a particular question is implicit rather than explicit,’” INS v.
Cardoza-Fonseca, 480 U.S. 421, 445 n.29 (1987) (quoting
Chevron, 467 U.S. 844), we must uphold any “‘reasonable
interpretation made by the administrator’ of that agency,” Am.
Paper Inst., Inc. v. EPA, 996 F.2d 346, 356 (D.C. Cir. 1993)
(quoting Chevron, 467 U.S. at 844).
Even where EPA’s construction satisfies Chevron, we still
must ensure that its action is not otherwise arbitrary and
capricious. See 42 U.S.C. § 7607(d)(9)(A); see also Bluewater
Network v. EPA, 370 F.3d 1, 11 (D.C. Cir. 2004) (“[R]eview
under the CAA’s ‘arbitrary and capricious’ standard is the same
as that required by the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A).”). The arbitrary and capricious standard is
“[h]ighly deferential,” and it “presumes the validity of agency
11
action.” AT&T Corp. v. FCC, 349 F.3d 692, 698 (D.C. Cir.
2003) (internal quotation marks omitted). We must uphold an
agency’s action where it “has considered the relevant factors and
articulated a ‘rational connection between the facts found and
the choice made,’” Allied Local & Reg’l Mfrs. Caucus v. EPA,
215 F.3d 61, 68 (D.C. Cir. 2000) (quoting Motor Vehicle Mfrs.
Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983)), and has not “relied on [improper] factors,” State
Farm, 463 U.S. at 43. “[T]he ultimate standard of review is a
narrow one. [We are] not empowered to substitute [our]
judgment for that of the agency.” Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). And, “[w]e give
particular deference to . . . EPA when it acts under unwieldy and
science-driven statutory schemes like the Clean Air Act.”
Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004)
(internal quotation marks omitted).
C. Chevron Review
There can be no doubt that EPA acted pursuant to an
express delegation authority in adopting the disputed Final Rule.
An express delegation arises when “Congress has expressly
delegated to [an agency] the authority to prescribe regulations
containing such classifications, differentiations, or other
provisions as, in the judgment of the [agency], are necessary or
proper to effectuate the purposes of [the authorizing statute], to
prevent circumvention or evasion thereof, or to facilitate
compliance therewith.” Household Credit Servs., Inc. v.
Pfennig, 541 U.S. 232, 238-39, 242 (2004) (internal quotation
marks omitted). That is precisely what Congress has done in the
Clean Air Act in requiring the Administrator of EPA to study
and investigate emissions of air pollutants from aircraft and
adopt regulations to control them. The Act states that “[t]he
Administrator shall, from time to time, issue proposed . . .
standards applicable to the emission of any air pollutant from
. . . aircraft engines which in his judgment causes, or contributes
12
to, air pollution which may reasonably be anticipated to
endanger public health or welfare.” 42 U.S.C. § 7571(a)(2)(A).
After hearings, the Administrator is authorized to “issue such
regulations with such modifications as he deems appropriate.”
Id. § 7571(a)(3) (emphasis added). This delegation of authority
is both explicit and extraordinarily broad. See Atkins v. Rivera,
477 U.S. 154, 162 (1986) (finding an express delegation of
authority where “Congress conferred on the Secretary
exceptionally broad authority to prescribe standards for applying
certain sections of the Act”) (internal quotation marks omitted).
Accordingly, because Congress has “explicitly left a gap for the
agency to fill, the agency’s regulation is given controlling
weight unless [it is] . . . manifestly contrary to the statute.”
Household Credit Servs., 541 U.S. at 239 (internal quotation
marks omitted).
NACAA argues that the Final Rule’s interpretation of § 231
to allow codification of current practices rather than requiring a
technology-forcing approach is inconsistent with CAA’s
“forward-looking language [and] . . . overall purpose and
legislative history” and “renders meaningless” § 231’s reference
to technology. Petitioner’s Br. at 17-23. Petitioner’s logic is
simple. Although the Final Rule tightens EPA regulations by
16%, almost all aircraft already satisfy this requirement by
virtue of their compliance with ICAO standards. Since § 231 is
intended to promote the “public health [and] welfare,” see 42
U.S.C. § 7571(a)(2)(A), not to “establish[] consistency with
international standards,” EPA must require use of new
technology to effect even greater emissions reduction.
Petitioner’s Br. at 21. Following this logic, NACAA argues that
“EPA’s determination that safety considerations were as
important as the overall goal of promoting public health and
welfare is inconsistent with the Act and an unreasonable
interpretation of section 231.” Id. at 26. And NACAA contends
that § 231 only permits EPA to consider compliance costs where
the standard ultimately issued would require development of
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new technology. Id. at 30-31. In other words, NACAA reads
§ 231 to focus primarily upon emissions reduction and to give
all other concerns – including international standards, safety
concerns, and compliance costs – a subsidiary role. The bottom
line, according to NACAA, is that the Final Rule impermissibly
interprets § 231 to permit EPA to promulgate a rule that will not
actually effect an emissions reduction.
The Final Rule announces a different view of the statutory
scheme. It first notes that other provisions of the CAA require
EPA to obtain the “greatest degree of emission reduction
achievable.” See Final Rule, 70 Fed. Reg. at 69,676 (quoting 42
U.S.C. § 7547(a)(3)). But § 231 does not contain such language.
Thus, the Final Rule reasons, EPA “is not required to achieve a
‘technology-forcing’ result” in the aircraft engine emissions
context. Id. Nor does the Final Rule “interpret the Act as
requiring the agency to give subordinate status to factors such as
cost, safety, and noise.” Id. Rather, it concludes that EPA “has
greater flexibility under section 231 in determining what
standard[s are] most reasonable for aircraft engines.” Id. The
Final Rule also notes that “there is an added emphasis [in § 231]
on the consideration of safety. Therefore, it is reasonable for
EPA to give greater weight to considerations of safety in this
context than it might in balancing emissions reduction, cost, and
energy factors under other [CAA] provisions.” Id. (internal
citations omitted).
“[W]e need not find that [this interpretation] is the only
permissible construction that EPA might have adopted but only
that EPA’s understanding of this very complex statute is” not
manifestly contrary to the CAA. Chem. Mfrs. Ass’n v. Natural
Res. Def. Council, Inc., 470 U.S. 116, 125 (1985) (internal
quotation marks omitted). When Congress enacted § 231
providing that the Administrator could, “from time to time,” act
“in his judgment,” as “he deems appropriate,” it conferred broad
discretion to the Administrator to weigh various factors in
14
arriving at appropriate standards. Moreover, to the extent that
§ 231 requires rules promulgated thereunder to tighten emission
standards, the Final Rule in fact does so by 16%. NACAA’s
argument that § 231 additionally requires a technology-forcing
result and prohibits consideration of such factors as safety and
compliance costs is a familiar one. In George E. Warren Corp.
v. EPA, the petitioners argued that “the maintenance or
improvement of air quality is the sole focus of the anti-dumping
provision [of the CAA].” 159 F.3d 616, 623 (D.C. Cir. 1998).
Finding nothing in “the text or structure of the statute to indicate
that the Congress intended to preclude the EPA from
considering [factors other than air quality],” we refused “to infer
from congressional silence an intention to preclude the agency
from considering factors other than those listed in a statute.” Id.
at 623-24; see also Allied Local, 215 F.3d at 78; George E.
Warren Corp., 159 F.3d at 623-24 (“‘In the absence of clear
congressional direction to the contrary, we will not deprive the
agency of the power to fine-tune its regulations to accommodate
worthy nonsafety interests’ under a statute focused upon safety.”
(quoting Int’l Bhd. of Teamsters v. United States, 735 F.2d 1525,
1529 (D.C. Cir. 1984))).
Congress has delegated expansive authority to EPA to enact
appropriate regulations applicable to the emission of air
pollutants from aircraft engines. Because we find that the Final
Rule is not “manifestly contrary to the statute,” it must be given
controlling weight. We therefore defer to EPA’s construction of
§ 231.
D. Arbitrary and Capricious Review
NACAA also contends that the Final Rule is arbitrary and
capricious under four different theories. However, “[i]t is a hard
and fast rule of administrative law, rooted in simple fairness,
that issues not raised before an agency are waived and will not
be considered by a court on review.” Nuclear Energy Inst., 373
F.3d at 1297-98 (citing United States v. L.A. Tucker Truck Lines,
15
Inc., 344 U.S. 33, 37 (1952)). Indeed, the CAA specifically
provides that “only an objection to a rule or procedure which
was raised with reasonable specificity during the period for
public comment . . . may be raised during judicial review.” 42
U.S.C. § 7607(d)(7)(B). Objections must be prominent and
clear enough to place the agency “on notice,” for EPA is not
required “to cull through all the letters it receives and answer all
of the possible implied arguments.” Mossville Envtl. Action
Now v. EPA, 370 F.3d 1232, 1240 (D.C. Cir. 2004). Petitioners
who fail to comply with this exhaustion requirement are barred
from seeking judicial review. S. Coast Air Quality Mgmt. Dist.
v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006). Under this
standard, NACAA has forfeited three of its arguments by failing
to raise them “with reasonable specificity” in the proceedings
before EPA.
Petitioner first claims that the Final Rule relies upon an
improper factor when it cites insufficient time as the primary
justification for not issuing more stringent standards. NACAA’s
argument is clear: since EPA “had complete discretion over the
timing of the rule” and thus caused the delay itself, it is barred
from relying upon shortage of time to support the Final Rule’s
limited stringency. Petitioner’s Br. at 23-24. Not only did
petitioner not raise this argument before EPA, it acknowledged
the opposite. Before EPA, the organizations that later joined to
form NACAA stated:
[We] are disappointed that EPA waited as long as it did to
align U.S. aircraft standards with those of the international
community. . . . However, given the inexplicable delay,
EPA is now accurate to assert, as it does in this untimely
proposal, that “at this time, there is not sufficient lead time
to require more stringent emission standards . . . .”
Nonetheless, our associations firmly believe that EPA has
an obligation to immediately follow this rulemaking with
further, more aggressive regulatory action . . . .
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Comments of STAPPA/ALAPCO, 12/15/03, reprinted in Joint
Appendix (“J.A.”) 247, 249. NACAA understood that, in
aligning U.S. aircraft standards with those of the 1999 ICAO
standards, EPA did not have sufficient lead time to require more
stringent emission standards. NACAA voiced its
disappointment, but it did not claim that EPA was tardy in
considering further regulatory action. Rather, petitioner merely
asked that EPA “follow this rulemaking with further, more
aggressive regulatory action.” Because NACAA did not raise a
claim for unreasonable delay with the agency, see generally
Sierra Club v. Thomas, 828 F.2d 783, 794-97 (D.C. Cir. 1987),
the challenge is not properly before the court.
NACAA is also foreclosed from raising a claim that the
Final Rule is arbitrary and capricious because “EPA issued the
rule as ‘a near-term approach’ without firmly committing to
future action.” Petitioner’s Br. at 31. The Final Rule states,
“EPA intends to address more stringent emission standards
requiring more lead time in a future rulemaking.” 70 Fed. Reg.
69,674. Before EPA, NACAA did not object to this course of
action and did not argue that EPA must actually schedule a
future rulemaking in the Final Rule. NACAA only asked EPA
to “follow this rulemaking with further, more aggressive
regulatory action.” Comments of STAPPA/ALAPCO, reprinted
in J.A. 249. Accordingly, we will not consider this argument on
the merits.
Finally, NACAA contends both that safety is an improper
factor under § 231 and that “EPA never explained why safety
considerations prevented it from issuing . . . standard[s] that
would require the development and application of technology.”
Petitioner’s Br. at 27. This argument was also forfeited.
NACAA concedes that it did not object before the agency, but
argues that this failure should be excused, because EPA’s notice
of proposed rulemaking did not mention safety concerns. But
even where “the ground for [an] objection arose after the period
17
for public comment, . . . the petitioner must first seek a
proceeding for reconsideration. Only then may petitioner seek
judicial review.” Appalachian Power Co., 249 F.3d at 1055
(internal quotation marks and citation omitted).
The fourth claim raised by NACAA – that EPA does not
adequately explain its refusal to extend the 16% reduction to
newly manufactured engines of already certified models – is
properly before the court on the merits. Although this claim was
properly preserved, it lacks merit. The Final Rule acknowledges
that EPA has “historically adopted production cut-offs,” but it
then distinguishes this “unique case.” 70 Fed. Reg. at 69,681.
The Final Rule explains that since ICAO did not apply its 1999
standards to newly manufactured engines, application of those
standards “could be disruptive to the production planning of
engine manufacturers,” id. at 69,678, 69,680-81, and would
require analysis of “the emissions benefits (if any) and the
implementation costs of [wider applicability],” id. at 69,681.
Because EPA did not have time to investigate these possible
compliance costs, the agency elected not to impose a production
cut-off date. It is settled law that an agency may change its past
practices, especially under changed circumstances, so long as it
provides a reasoned explanation for its action. See Williams Gas
Processing-Gulf Coast Co. v. FERC, 475 F.3d 319, 326 (D.C.
Cir. 2006). Since we have already rejected NACAA’s only
retort – that cost compliance is an improper factor – we
conclude that the Final Rule’s deviation from past practice is
supported by reasoned decisionmaking warranting our
deference.
III. CONCLUSION
For the reasons set forth above, the petition for review is
hereby denied.
So ordered.