Engine Mfrs. Ass'n v. U.S. E.P.A., Nos. 94-1558

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtROGERS; TATEL
Citation88 F.3d 1075
Decision Date12 July 1996
Docket NumberNos. 94-1558
Parties, 319 U.S.App.D.C. 12, 65 USLW 2103, 26 Envtl. L. Rep. 21,477 ENGINE MANUFACTURERS ASSOCIATION, on Behalf of Certain of its Members, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents, Hertz Equipment Rental Corporation and Ingersoll-Rand, Intervenors. to 94-1561, 94-1564, 94-1566 to 94-1569.

Page 1075

88 F.3d 1075
42 ERC 1993, 319 U.S.App.D.C. 12, 65
USLW 2103,
26 Envtl. L. Rep. 21,477
ENGINE MANUFACTURERS ASSOCIATION, on Behalf of Certain of
its Members, Petitioner,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner,
Administrator, U.S. Environmental Protection
Agency, Respondents,
Hertz Equipment Rental Corporation and Ingersoll-Rand, Intervenors.
Nos. 94-1558 to 94-1561, 94-1564, 94-1566 to 94-1569.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 5, 1995.
Decided July 12, 1996.

Page 1077

On Petitions for Review of Orders of the Environmental Protection Agency.

David M. Friedland, Raleigh, NC, argued the cause and filed the brief, for petitioner National Mining Association.

Alan H. McConnell, Raleigh, NC, argued the cause, for petitioners and intervenors Equipment Manufacturers Institute, Ford New Holland, Inc., Hertz Equipment Rental Corporation, and Ingersoll-Rand, Portable Compressor Division.

Timothy A. French argued the cause, for petitioner Engine Manufacturers Association with whom Gary H. Baise, Washington, DC, Jed R. Mandel, Chicago, IL, and Melissa M. Thompson, Boston, MA, were on the briefs.

Norman W. Fichthorn entered an appearance, Washington, DC, for petitioners Hertz Equipment Rental Corporation and Ingersoll-Rand.

Page 1078

Naikang Tsao, Attorney, U.S. Department of Justice, Washington, DC, argued the cause, for respondents, with whom Lois J. Schiffer, Assistant Attorney General, Washington, DC, Jonathan Z. Cannon, General Counsel, Environmental Protection Agency, and Michael J. Horowitz, Attorney, Brooklyn, NY, were on the brief.

Michael L. Terris, Senior Staff Counsel, California Air Resources Board, was on the brief, Sacramento, CA, for amicus curiae.

Before: GINSBURG, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.

ROGERS, Circuit Judge:

Two different sets of consolidated petitions challenge two final rules on emissions from nonroad engines and vehicles adopted by the Environmental Protection Agency ("EPA") to implement sections 209(e) and 213 of the Clean Air Act, 42 U.S.C. §§ 7401-7671q (1994) ("CAA"), as revised by the amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2399. Nonroad engines are internal combustion engines that are used in a wide variety of off-highway equipment including lawnmowers, bulldozers, and locomotives. In the first set of petitions, the Engine Manufacturers Association and others ("EMA") challenge the EPA's determination of the scope of preemption of state regulation under § 209(e). In the second set of petitions, the National Mining Association and others ("NMA") challenge the EPA's decision to regulate very large (greater than 750 horsepower) engines used in mining equipment, as well as the EPA's decision to regulate smoke, hydrocarbon, carbon monoxide, and particulate matter emissions, under § 213. Finding the EPA's interpretations of § 209(e) to be permissible with one exception, we grant the EMA petitions only in part. Concluding that the EPA's regulatory actions under § 213 were within its discretion and not arbitrary or capricious, we deny the NMA petitions.

I.

The Clean Air Act Statutory Scheme. The CAA makes "the States and the Federal Government partners in the struggle against air pollution." General Motors Corp. v. United States, 496 U.S. 530, 532, 110 S.Ct. 2528, 2530, 110 L.Ed.2d 480 (1990). The basic structure of this partnership has not changed since it was established by the Air Quality Act of 1967, Pub.L. No. 90-148, 81 Stat. 485 ("1967 Act"), and the Clean Air Amendments of 1970, Pub.L. No. 91-604, 84 Stat. 1676 ("1970 amendments"). See generally American Petrol. Inst. v. Costle, 665 F.2d 1176 (D.C.Cir.1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982). The 1967 Act required the states to set ambient air quality standards for each air quality control region, establishing permissible levels of concentration for various pollutants. 1 Congress also directed the states to adopt implementation plans explaining how they would improve the air quality to meet the standards they had established. 2 The 1970 amendments transferred authority to set the standards, now known as national ambient air quality standards (NAAQSs), from the states to the EPA. 3 The states were to submit state implementation plans (SIPs) for achieving the NAAQSs to the EPA for approval. 4 Thus, the states had the "primary responsibility" for improving air quality, 5 although the EPA significantly influenced the process by setting the NAAQSs and testing proposed SIPs against detailed statutory criteria.

The CAA contemplated that the states would carry out their responsibility chiefly

Page 1079

by regulating stationary sources, such as factories and power plants. Both before and after the 1977 amendments, Pub.L. No. 95-95, 91 Stat. 685, many of the statutory requirements for SIPs related to the regulation of stationary sources. 6 Penalties for failing to attain air quality standards also focused on stationary sources, for example by restricting construction of new stationary sources in areas that failed to meet a NAAQS. 7 When Congress considered the 1990 amendments, it did so against a history of detailed state regulation of stationary sources, backed up by the threat of curtailed construction of these economically important installations.

In contrast to federally encouraged state control over stationary sources, regulation of motor vehicle emissions had been a principally federal project. See generally Motor Vehicle Manufacturers Ass'n v. New York State Dep't of Envtl. Conserv., 17 F.3d 521, 524-27 (2d Cir.1994) ("MVMA"); Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1101-03, 1108-11 (D.C.Cir.1979) ("MEMA"), cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980). The regulatory difference is explained in part by the difficulty of subjecting motor vehicles, which readily move across state boundaries, to control by individual states. Congress had another reason for asserting federal control in this area: the possibility of 50 different state regulatory regimes "raised the spectre of an anarchic patchwork of federal and state regulatory programs, a prospect which threatened to create nightmares for the manufacturers." MEMA, 627 F.2d at 1109. Two years after authorizing federal emissions regulations, therefore, Congress preempted the states from adopting their own emissions standards. 8 The Second Circuit has referred to this preemption as "the cornerstone" of Title II, the portion of the CAA that governs mobile pollution sources. MVMA, 17 F.3d at 526.

In spite of Congress' determination to protect manufacturers from multiple emissions standards, see MEMA, 627 F.2d at 1109 (citing S.Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) U.S.Code Cong. & Admin.News 1967, p. 1938), California was granted an exemption from the § 209(a) preemption. 9 Congress recognized that California was already the "lead[er] in the establishment of standards for regulation of automotive pollutant emissions" at a time when the federal government had yet to promulgate any regulations of its own. MEMA, 627 F.2d at 1109 n. 26 (quoting S.Rep. No. 192, 89th Cong., 1st Sess. 5 (1965) U.S.Code Cong. & Admin.News

Page 1080

1965, p. 983). California's Senator Murphy convinced his colleagues that the entire country would benefit from his state's continuing its pioneering efforts, California serving as "a kind of laboratory for innovation." Id. at 1109, 1110 n. 31, 1111. This function was enhanced by the 1977 amendments, which permitted other states to "opt in" to the California standards by adopting identical standards as their own. 10 Thus, motor vehicles must be either "federal cars" designed to meet the EPA's standards or "California cars" designed to meet California's standards. MVMA, 17 F.3d at 526-27. Rather than being faced with 51 different standards, as they had feared, or with only one, as they had sought, manufacturers must cope with two regulatory standards under the legislative compromise embodied in § 209(a).

The pre-1990 CAA, then, extensively treated both stationary sources, which were principally a state responsibility, and motor vehicles, which were principally the shared responsibility of the EPA and California. Nonroad sources were not expressly mentioned, although it appears that some large states had started to regulate a few nonroad sources in their attempts to meet the NAAQSs. 11 It was not until the 1990 amendments that Congress chose to define and regulate nonroad sources, and it is the EPA's interpretation and application of those amendments that are challenged here.

The several phrases on whose construction these petitions turn are but tiny pieces of the 1990 amendments, a legislative feat whose massiveness and complexity "beggar[ ] description." MVMA, 17 F.3d at 525. Congress did not, however, alter the basic structures of Titles I and II, governing the federal-state partnership over attainment of the NAAQSs and control of motor vehicle emissions, respectively. Title I continues to focus both state regulatory efforts and disincentives to nonattainment on stationary sources. 12 The new permitting regime of Title V 13 and the acid rain provisions of Title IV 14 also direct the states' attention to their traditional regulation of stationary sources. Although the amendments require a clean fuel vehicles program in serious, severe and extreme nonattainment areas, 15 the thrust of state compliance efforts continues to be on stationary sources.

The mobile source provisions of Title II also continue the basic pre-1990 regime, with the amendments adding detail and refinements. See WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 3.1D (Supp.1995). For the first time, however, Congress extended federal regulation under Title II to nonroad pollution...

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