United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2008 Decided February 6, 2009
No. 08-1030
SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY AND LISA JACKSON,
RESPONDENTS
Consolidated with 08-1031, 08-1041
On Petitions for Review of an Order
of the Environmental Protection Agency
Daniel P. Selmi argued the cause for petitioner. With
him on the briefs were Kurt R. Wiese, Barbara B. Baird,
William M. Dillon, Michael Sherwood, and Sarah Burt.
Eileen T. McDonough, Attorney, U.S. Department of
Justice, argued the cause for respondent. With her on the
brief was John C. Cruden, Deputy Assistant Attorney
General.
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Before: SENTELLE, Chief Judge, and GINSBURG and
ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: The South Coast Air Quality
Management District, the Santa Barbara County Air Pollution
Control District, and Friends of the Earth challenge the final
rule promulgated by the Environmental Protection Agency
extending the deadline for the EPA to establish more stringent
emissions standards for large marine diesel engines. We
conclude the EPA reasonably implemented the Clean Air Act
(CAA) in extending the deadline, wherefore we deny the
petitions for review.
I. Background
Section 213(a)(3) of the Act directs the EPA to establish
emissions standards for new nonroad engines, including
marine engines, that contribute to certain types of pollution.
The standards must
achieve the greatest degree of emission reduction
achievable through the application of technology
which the Administrator determines will be available
... giving appropriate consideration to the cost of
applying such technology ... and to noise, energy,
and safety factors.
42 U.S.C. § 7547(a)(3). The standards are to “take effect at
the earliest possible date considering the lead time necessary
to permit the development and application of the requisite
technology.” Id. § 7547(b).
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In 1994 the EPA determined that marine engines
contribute significantly to ozone pollution in certain areas and
hence must be made subject to emissions standards. At issue
in this case are standards for the largest type of marine
engines, known as “Category 3” engines. See Control of
Emissions from New Marine Compression-Ignition Engines
at or Above 30 Liters per Cylinder, 68 Fed. Reg. 9746,
9747/3 (Feb. 28, 2003) [hereinafter Tier 1 Rule]. In 2003 the
EPA adopted a two-stage approach to regulating those
engines. Id. at 9748/3. The Tier 1 Rule established interim
standards based upon technology available at that time. Id.
The Tier 1 Rule also set April 27, 2007 as the deadline for
promulgating Tier 2 standards, which would be based upon
the more advanced technologies the EPA expected to become
available. Id. at 9750/2. The EPA deferred to the same date
deciding whether to apply the standards to foreign-flagged
vessels that enter ports in the United States. Id. at 9759/3.
In Bluewater Network v. EPA, 372 F.3d 404, 411 (2004),
we held the “two-tiered approach to emissions standards ...
satisfies the requirements of section 213(a)(3) of the CAA.”
Thereafter, however, the EPA failed to meet the deadline it
had set itself for issuing Tier 2 standards. Instead, the EPA
issued the rule now under review, which extended that
deadline to December 17, 2009. Change in Deadline for
Rulemaking to Address the Control of Emissions from New
Marine Compression-Ignition Engines at or Above 30 Liters
per Cylinder, 72 Fed. Reg. 68,518 (Dec. 5, 2007) [hereinafter
Extension Rule]. The EPA also published an Advance Notice
of Proposed Rulemaking (ANPR) outlining the approach it
was (and is) considering for Tier 2 standards and describing
technologies that might be used to achieve those standards.
Control of Emissions from New Marine Compression-
Ignition Engines at or Above 30 Liters per Cylinder, 72 Fed.
Reg. 69,522 (Dec. 7, 2007).
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In the Extension Rule, the EPA explained that despite the
delay it “remains committed to developing and proposing Tier
2 emission standards for Category 3 marine diesel engines.”
72 Fed. Reg. at 68,520/2. Although it had gathered additional
information since issuing the Tier 1 Rule, the EPA identified
several issues that it must resolve before it can set Tier 2
standards. Id. at 68,520/1-2. The petitioners object that the
EPA has violated its duty under § 213 by failing to set
standards that attain the greatest degree of emissions
reductions achievable with available technology. Relatedly,
they argue the EPA’s claim it needs more time to set Tier 2
standards is not supported by the record.
II. Analysis
We have jurisdiction to review the Extension Rule
because it is a “nationally applicable regulation[]
promulgated” by the EPA under the Act. 42 U.S.C. §
7607(b)(1). As provided in the Act, we review the EPA’s
action deferentially to determine only whether it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Id. § 7607(d)(9)(A). In reviewing for
arbitrariness, “[w]e give particular deference to the EPA
when it acts under unwieldy and science-driven statutory
schemes like the Clean Air Act.” Bluewater Network, 372
F.3d at 410 (internal quotation marks omitted). We review
the EPA’s interpretation of the Act pursuant to Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984): We first ask whether the Congress has “directly
spoken to the precise question at issue.” Id. at 842. If so,
then we must “give effect to the unambiguously expressed
intent of Congress.” Id. at 843. If, however, the “statute is
silent or ambiguous with respect to the specific issue,” then
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we defer to the EPA’s interpretation as long as it is “based on
a permissible construction of the statute.” Id.
A. Extension of the Deadline
The petitioners first contend the Extension Rule violates
CAA § 213 because the EPA has acknowledged that more
effective technologies are available now and the CAA
obligates the EPA to set standards based upon available
technologies. In promulgating the Rule, the EPA explained
that, although it now has a better understanding of advanced
technologies, it needs additional time to develop a Tier 2
emissions control program that exploits them effectively. 72
Fed. Reg. at 68,519/1. Specifically, the agency stated, it must
still evaluate testing and compliance procedures, address the
disposal of emissions removed from exhaust gases, and assess
the costs and benefits of alternative emission control
strategies using new methodologies that account for at-sea
emissions transported to shore. Id. at 68,520/1-2.
In evaluating the petitioners’ statutory argument, we are
not writing on a clean slate: In Bluewater Network, we held
the EPA satisfied § 213 when it issued interim Tier 1
standards and committed to adopting by 2007 Tier 2
standards that would depend upon more advanced
technologies. 372 F.3d at 412. The petitioners argue that,
2007 having come and gone, the EPA must adopt more
stringent standards now to comply with the Act and that the
EPA has abandoned its commitment to do so. The Extension
Rule, however, expressly reaffirms the EPA’s commitment to
adopting more stringent standards; only the timing has
changed.* Our task today, therefore, is limited to determining
*
The EPA argues it satisfied its nondiscretionary duty to
promulgate standards under § 213(a)(3) by the adoption of Tier 1
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whether the EPA’s decision to promulgate Tier 2 standards in
2009 rather than in 2007 is unlawful. We hold that it is not.
Just as the agency’s original decision to regulate
Category 3 engines in a two-tiered process did not violate §
213, neither does extending the deadline in order to complete
the tasks necessary to devising an informed Tier 2 regulation.
First, as we held in Bluewater Network, § 213 does not
require the EPA to “adopt the most stringent standards based
on the most advanced control technologies”; rather, it requires
the EPA to consider a number of factors, including cost,
noise, and safety. 372 F.3d at 411. The command of § 213(a)
therefore does not preclude the EPA from taking the time it
reasonably needs to weigh those factors and formulate a rule;
on the contrary, it affords the EPA broad discretion in setting
standards. Cf. Sierra Club v. EPA, 325 F.3d 374, 378 (D.C.
Cir. 2003) (holding CAA § 202(l), a provision in pari materia
with § 213(a), “does not resolve how the [EPA] should weigh
all these factors in the process of finding the ‘greatest
emission reduction achievable’”). In this case, the record
demonstrates the EPA reasonably needs more time to develop
a cost-effective implementation and compliance program for
the advanced technologies. See 72 Fed. Reg. at 69,543-44.
Furthermore, § 213(b) of the Act expressly contemplates that
the EPA will consider “lead time” in setting standards. The
EPA did so here and reasonably concluded that delaying Tier
2 standards will not delay the reduction of emissions because,
although the feasibility of advanced control technologies has
been demonstrated for some classes of vessels, if it set the
standards alone. In Bluewater Network, we held “the two-tiered
approach to emissions standards ... satisfies the requirements of
section 213(a)(3).” 372 F.3d at 411. We need not reach the EPA’s
present argument because the EPA remains committed to that two-
tiered approach, see 72 Fed. Reg. at 68,520/2 – a commitment we
rely upon in holding the Rule is lawful.
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standards sooner the EPA would have to allow manufacturers
more lead time in order to ensure the advanced technologies
could feasibly be incorporated into a wide range of engines.
72 Fed. Reg. at 68,520/3; see also id. at 69,537/2.
Second, our reason for accepting as reasonable the EPA’s
initial decision to defer setting Tier 2 standards applies
equally to the Extension Rule: Although advanced
technologies are more widely available now than they were in
2003, the EPA could reasonably “recognize[] the merits of the
advanced technologies” yet choose “not to forestall their
further development by ... mandating their use without
complete information and study.” Bluewater Network, 372
F.3d at 412. As explained above, the record demonstrates the
EPA reasonably needs additional time to formulate
implementation and compliance measures. Meanwhile, as we
observed in the prior case, the EPA has implemented Tier 1
standards to prevent backsliding while it formulates longer-
term standards. Id. In these circumstances, we defer to the
EPA’s policy judgment that, whether that period is four years,
as the agency originally contemplated, six years as have now
elapsed, or almost seven years, as the Extension Rule will
make it, is of little consequence given the complexity of this
task and the EPA’s explanation of the need for additional
time.
The petitioners next contend the Extension Rule is
arbitrary and capricious because the record does not support
the EPA’s claim that it needs more time to set Tier 2
standards. This argument, not surprisingly, reprises the
petitioners’ statutory argument; when a statute affords an
agency substantial discretion – as § 213 does – the Chevron
inquiry overlaps analytically with the determination whether
the agency acted arbitrarily. See Nat’l Ass'n of Regulatory
Util. Comm'rs v. ICC, 41 F.3d 721, 726-27 (D.C. Cir. 1994)
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(“Whether an agency action is to be judged as reasonable, in
accordance with the ... arbitrary and capricious standard, or
whether it is to be examined as a permissible interpretation of
the statute vel non depends, at least theoretically, on the scope
of the specific congressional delegation implicated”).
Accordingly, we recur to the issues identified in the Extension
Rule and posed for comment in the ANPR, see supra at 5, in
view of which it is not arbitrary for the EPA to extend its
deadline to allow sufficient time to complete its rulemaking
process.
Finally, the petitioners claim the agency is arbitrarily
delaying the rulemaking until it has negotiated international
standards to control emissions from marine engines. In
promulgating the Extension Rule, however, the EPA
expressly represented that, although it does expect the
international standard-setting process will generate relevant
information that it should consider, it is “not deferring to that
process.” 72 Fed. Reg. at 68,522/2. The petitioners give us
no reason to doubt the EPA’s good faith in making this
representation; the petitioners’ mere assertion to the contrary
is not a basis upon which we can fault the agency.*
B. Foreign-Flagged Vessels
The petitioners also challenge the EPA’s postponement
of the decision whether to apply any emissions standards to
foreign-flagged vessels that visit ports in the United States.
Foreign-flagged vessels now meet the Tier 1 standards by
*
The petitioners raise additional arguments in their reply brief, but
in order to prevent “sandbagging of appellees and respondents,” we
do not consider arguments that were raised neither in the opening
brief nor by the respondents. See Sitka Sound Seafoods, Inc. v.
NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000) (internal quotation
marks omitted).
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complying with the equivalent international standards.
Bluewater Network, 372 F.3d at 413. We previously held the
same objection was premature because Tier 2 standards had
not been promulgated; until they are, we observed, the EPA’s
decision to regulate foreign vessels would have no practical
effect upon the emissions standards to which those vessels are
subject. Id.
The Extension Rule reaffirms the EPA’s commitment to
decide this issue when it issues Tier 2 standards. 72 Fed.
Reg. at 68,522/3. Deferring resolution of the issue until it
will have an effect remains reasonable and the petitioners’
objection therefore remains premature.
III. Conclusion
In view of the issues remaining for the EPA to resolve
before it sets Tier 2 standards, we hold the Extension Rule
deferring the deadline for promulgating a regulation is neither
arbitrary nor unlawful. At the oral argument the petitioners
allowed that they would not be objecting to the new deadline
if they could be sure the EPA would adhere to it. The EPA
gives that assurance in the Extension Rule, id. at 68,520/2,
and the record, which demonstrates the EPA has made
progress toward promulgating Tier 2 standards, see id. at
69,522, suggests no reason to doubt it. We rely upon that
assurance in holding that the Rule is lawful. In sum, because
the Rule commits the EPA to proceed with the two-tiered
approach approved in Bluewater Network, and to resolve
outstanding issues and set standards no later than December
17, 2009, the petitions for review are
Denied.