
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2276                          AMERICAN AUTOMOBILE MANUFACTURERS                                  ASSOCIATION, ET AL.,                               Plaintiffs, Appellants,                                          v.                       COMMISSIONER, MASSACHUSETTS DEPARTMENT                          OF ENVIRONMENTAL PROTECTION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Edward  W. Warren,  with  whom  Daniel F.  Attridge,  Stuart  A.C.            _________________               ___________________   ____________        Drake, Gary E. Marchant,  Kirkland & Ellis, Robert F.  Sylvia, Eric F.        _____  ________________   ________________  _________________  _______        Eisenberg,  Hinckley,  Allen  &  Snyder,  Phillip  D.  Brady, V.  Mark        _________   ___________________________   __________________  ________        Slywynsky, Of Counsel, American Automobile  Manufacturers Association,        _________        Charles H. Lockwood, and  John T. Whatley, Of Counsel,  Association of        ___________________       _______________        International  Automobile  Manufacturers,  Inc.,  were  on  brief  for        appellants.            James  R.  Milkey,  Assistant   Attorney  General,  Deputy  Chief,            _________________        Environmental  Protection  Division,   with  whom  Scott  Harshbarger,                                                           __________________        Attorney General  of the Commonwealth  of Massachusetts, and  David G.                                                                      ________        Bookbinder,  Assistant Attorney  General, were  on brief  for appellee        __________        Commissioner, Massachusetts Department of Environmental Protection.            William  H. Lewis,  Jr.,  Hunter  L.  Prillaman, Morgan,  Lewis  &            _______________________   _____________________  _________________        Bockius,  Paul F. Ware, Jr.,  Michael J. Meagher,  Scott L. Robertson,        _______   _________________   __________________   __________________        Goodwin,  Procter &  Hoar, G.  William Frick,  and David  T. Deal,  Of        _________________________  _________________       ______________        Counsel, American  Petroleum Institute on brief  for appellee American        Petroleum        Institute.            Lois  J. Schiffer,  Acting Assistant  Attorney General,  David  C.            _________________                                        _________        Shilton,  Timothy  J.  Dowling,  Attorneys,  Environment  and  Natural        _______   ____________________        Resources Division,  Jean C. Nelson, General Counsel,  Alan W. Eckert,                             ______________                    ______________        Associate General  Counsel, and Michael J.  Horowitz, Attorney, Office                                        ____________________        of General Counsel, United  States Environmental Protection Agency, on        brief for the United States, amicus curiae.            Jacqueline  M.  Warren,  and  Berle,  Kass  &  Case  on  brief for            ______________________        _____________________        American  Lung Association,  Natural  Resources  Defense Council,  and        Conservation Law Foundation, amici curiae.            G.  Oliver Koppel,  Attorney General  of  the  State of  New York,            _________________        Peter  H.  Schiff,  Deputy   Solicitor,  Val  Washington,  Joan  Leary        _________________                        _______________   ___________        Matthews, Helene G.  Goldberger, Assistant Attorneys General;  Michael        ________  _____________________                                _______        E.  Carpenter, Attorney General of  the State of  Maine, Sarah Roberts        _____________                                            _____________        Walton,  Assistant  Attorney  General;  Jeffrey  L. Amestoy,  Attorney        ______                                  ___________________        General  of the  State  of Vermont,  J.  Wallace Malley,  Jr.,  Deputy                                             ________________________        Attorney  General; Jeffrey B. Pine,  Attorney General of  the State of                           _______________        Rhode  Island,  and  Michael  Rubin, Assistant  Attorney  General  and                             ______________        Environmental  Advocate, on brief for  the States of  New York, Maine,        Vermont, and Rhode Island, amici curiae.                                 ____________________                                    August 3, 1994                                 ____________________                      BOWNES,   Senior   Circuit   Judge.     Plaintiffs-                      BOWNES,   Senior   Circuit   Judge.                                ________________________            appellants,  the  Massachusetts   State  Automobile   Dealers            Association,  Inc.   and  two  trade   groups  of  automobile            manufacturers, appeal from an order denying their request for            a  preliminary  injunction.   Plaintiffs  seek  to stall  the            implementation   of   motor   vehicle    tailpipe   emissions            regulations adopted by  defendant-appellee, the  Commissioner            of  the Massachusetts Department  of Environmental Protection            (DEP).    See  Mass.  Regs.  Code  tit.  310,      7.40-7.60.                      ___            Defendant-appellee,   the   American   Petroleum   Institute,            intervened in support of the regulations.                        Prior to oral argument, plaintiffs moved to dismiss            their appeal  as to all issues  but one:   whether DEP's 1995            model year requirements should be  enjoined.  DEP opposes the            motion  for  partial   dismissal  and   requests  costs   and            attorney's fees.   We grant the motion for partial dismissal.            We award DEP costs, but not attorney's fees.  With respect to            the 1995 model year  requirements, the order of the  district            court is affirmed.            I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________            A.        Cars and the Clean Air Act            A.        Cars and the Clean Air Act                      __________________________                      The  exhaust  from a  gasoline-powered engine  is a            source  of air pollution.   Motor Vehicle Mfrs.  Ass'n v. New                                        __________________________    ___            York  Dep't of Envtl. Conservation, 17 F.3d 521, 524 (2d Cir.            __________________________________            1994) (hereinafter  MVMA).    Emissions  from  car  tailpipes                                ____                                         -3-                                          3            include  hydrocarbons and nitrogen oxides (NOx), constituents            of ground-level ozone,  a major  component of smog.   Id.  at                                                                  ___            526.                        The  Clean  Air  Act  is  the  federal  legislation            governing  tailpipe emissions.   The  Act directs  the United            States  Environmental Protection  Agency  (EPA) to  establish            national ambient air quality standards (NAAQS) for pollutants            such  as  ground-level  ozone.   Under  the  Act,  states are            responsible for  developing and enforcing a  plan, subject to            EPA  approval, for  attaining  and maintaining  the NAAQS  by            regulating  sources of air  pollution.  42  U.S.C.   7410(a).            States failing  to meet  the NAAQS risk  sanctions, including            the  loss of  federal highway funds.   Id.    7509.   EPA has                                                   ___            designated the  entire state of Massachusetts  as a "serious"            nonattainment area for  the ozone  NAAQS.  See  56 Fed.  Reg.                                                       ___            56,694, 56,776 (Nov. 6, 1991).                      Mobile sources  of air  pollution such as  cars and            trucks are subject to EPA regulation under    202 and 207  of            the  Act, 42 U.S.C.     7521, 7541.   EPA emissions standards            for hydrocarbons and nitrogen oxides apply to a given vehicle            based on its weight, use classification, and model year.  See                                                                      ___            id.    7521, 7541; MVMA, 17 F.3d at 525-26.               ___                ____                      State  regulation  of  motor  vehicle  emissions is            generally  preempted  by  the  Clean  Air  Act,  42 U.S.C.               7543(a), with one  exception:  California can enforce its own                                         -4-                                          4            standards, subject to EPA approval by way of a waiver under              209(b)  of the Act,  id.   7543(b)  (the waiver requirement).                                 ___            Consequently, there can  be only two types  of cars "created"            under  emissions regulations  in this country:   "California"            cars  and "federal" (that is, EPA-regulated) cars.  See id.                                                                  ___ ___            7507.  Other states  cannot take any action that  would force            manufacturers  to create a "third  vehicle."1  Id. (the third                                                           ___            vehicle requirement).                       Section 177 of the Act allows other states to adopt            standards  "identical"  to  California's   (the  identicality            requirement),  but only  if there  is  a two-year  time lapse            between  the time  the standards  are adopted  and the  first            model  year   affected  by  those  standards   (the  leadtime            requirement).   Id.  Similarly,    211 of  the Act authorizes                            ___            EPA to regulate motor fuels and preempts any unapproved state                                            ____________________            1.  The third vehicle provision states:                       Nothing in  this section  . . .  shall be                      construed  as authorizing any . . . State                      to   prohibit   or  limit,   directly  or                      indirectly, the manufacture  or sale of a                      new motor vehicle or motor vehicle engine                      that  is  certified   in  California   as                      meeting California standards, or  to take                      any action of any kind to create, or have                      the effect of  creating, a motor  vehicle                      or motor vehicle  engine different than a                      motor  vehicle  or  engine  certified  in                      California under  California standards (a                      "third vehicle") or otherwise create such                      a "third vehicle."             42 U.S.C.   7507.                                          -5-                                          5            regulations,  except  for California,  which  may  enact fuel            standards without EPA approval.  Id.   7545(c)(4)(B).                                                ___                                         -6-                                          6            B.        DEP's Adoption of California LEV Regulations            B.        DEP's Adoption of California LEV Regulations                      ____________________________________________                      In  September 1991, California  enacted a novel set            of vehicle emissions and  clean fuels requirements called the            "Low Emissions Vehicles/Clean  Fuels" (LEV/CF) program.   The            LEV component  of the program  requires the creation  of four            categories of California cars  to meet increasingly stringent            emissions standards, to be phased in over time:  Transitional            Low-Emission  Vehicles;   Low-Emission  Vehicles;  Ultra-Low-            Emission  Vehicles;  and   Zero-Emission  Vehicles,  such  as            electric  cars.   California  has also  established  annually            descending  "fleet  average  requirements,"  based  on  sales            targets  for each  category  of vehicles.    A fleet  average            requirement is a cap on the average emissions attributable to            all classes of vehicles produced by a particular manufacturer            in a given year (in other words, the manufacturer's "fleet").            California's   requirements    provide   manufacturers   with            "flexibility to develop varying emissions within their entire            fleet to meet [an] overall goal."  MVMA, 17 F.3d at  535.  On                                               ____            January 7, 1993, EPA granted California a   209(b) waiver for            the program.                      Meanwhile, on January 31, 1992, DEP adopted the LEV            component of California's  standards, intending to apply  the            standards beginning with 1995  models.  DEP regulations allow            new  California   cars  to  be  leased,   bought,  sold,  and            registered in Massachusetts,  but ban the  acquisition, sale,                                         -7-                                          7            and registration of  new federal  cars in the  state.   DEP's            proposed   regulations  sent  out   for  notice  and  comment            contained   fleet   average   requirements,   but   no   such            requirements appear  in the final rule  because DEP preferred            to let the market determine the mix of new California cars in            the state.             C.        Prior Proceedings            C.        Prior Proceedings                      _________________                      Plaintiffs filed an  action in  the District  Court            for  the  District  of  Massachusetts,  arguing   that  DEP's            regulations are  preempted by  the Act because  DEP allegedly            failed  to comply with    177 of  the Act, 42  U.S.C.   7507.            Plaintiffs moved  for summary judgment and  for a preliminary            injunction, founding  their motions on four claims:   [1] the            regulations are not "identical"  to California's, in that DEP            did  not  adopt  California's  clean  fuels  rules;  [2]  the            regulations  force manufacturers to  create a "third vehicle"            because  of   the  higher  sulfur  content   of  gasoline  in            Massachusetts; [3] the regulations were adopted by DEP before            EPA  granted California a    209(b) waiver; and  [4] the two-            year  leadtime requirement  precluded DEP  from applying  the            regulations to any 1995 models because two automakers planned            to begin producing  1995 cars before  two years passed  after            the regulations were adopted.                        With  the parties'  consent,  the court  stayed the            summary judgment  proceedings and  ruled first on  the motion                                         -8-                                          8            for a preliminary  injunction.  The  court denied the  motion            without a hearing, ruling that while  plaintiffs demonstrated            a  risk  of irreparable  injury  given  the cost  of  vehicle            emissions controls,  the balance of equities and  the risk of            harm to the public interest did not clearly favor granting an            injunction.   The court also found  that plaintiffs failed to            demonstrate a  likelihood of prevailing on  the merits, which            is  the "sine qua  non" of  the preliminary  injunction test.                     ____ ___  ___            Weaver v. Henderson, 984 F.2d 11, 12 & n.3 (1st Cir. 1993).             ______    _________                      Three of the four Clean Air Act issues presented to            the district court were later addressed by the Second Circuit            in  a case concerning a  challenge to New  York's adoption of            the  LEV standards.  See MVMA, 17  F.3d at 521, aff'g in part                                 ___ ____                   _____ __ ____            and rev'g in part Motor Vehicle Mfrs. Ass'n v. New York Dep't            ___ _____ __ ____ _________________________    ______________            of  Envtl.  Conservation, 831  F.  Supp.  57 (N.D.N.Y.  1993)            ________________________            (hereinafter New York DEC).  The Second Circuit held in favor                         ____________            of  the state on the identicality and waiver claims, but held            in  favor of the  automakers on the  leadtime claim.   Id. at                                                                   ___            532-35.  The court  did not consider the merits of the "third            vehicle"  claim because  the  district  court found  material            facts at issue and set the claim down for trial.  Id. at 530.                                                              ___                                         II.                                         II.                                  PARTIAL DISMISSAL                                  PARTIAL DISMISSAL                                  _________________                      Prior to oral argument, plaintiffs moved under Fed.            R.   App.  P.  42(b)  to  dismiss  their  appeal  as  to  the                                         -9-                                          9            identicality,  waiver,  and  third  vehicle  claims,  thereby            leaving  the leadtime  issue as  the  sole basis  for interim            relief.    Plaintiffs'  action  was prompted  by  the  Second            Circuit's adverse  ruling  on  the  identicality  and  waiver            claims, which came after  plaintiffs' opening brief was filed            in  this case.    In addition,  plaintiffs maintain  that the            third  vehicle claim  requires  testimony on  the effects  of            sulfur  on emissions systems,  and that  the evidence  in the            record is outdated and incomplete.                         We have broad discretion to grant voluntary motions            to dismiss.   "An appeal  may be  dismissed on motion  of the            appellant  upon such  terms as  may  be .  . .  fixed by  the            court."  Fed. R. App. P. 42(b); see also 16 Charles A. Wright                                            ___ ____            & Arthur R. Miller, Federal Practice and Procedure   3988, at                                ______________________________            480 (1977).  Such  motions are generally granted, but  may be            denied  in  the interest  of justice  or  fairness.   See HCA                                                                  ___ ___            Health Servs. of Virginia v. Metropolitan Life  Ins. Co., 957            _________________________    ___________________________            F.2d 120,  123 (4th Cir.  1992); United States  v. Washington                                             _____________     __________            Dep't of Fisheries, 573 F.2d 1117, 1118 (9th  Cir. 1978).                __________________                      DEP contends  that this  case "presents one  of the            rare occasions where justice requires that a voluntary motion            to dismiss be . . .  denied," so that we might rule  that the            third  vehicle claim  fails  as  a matter  of  law.   We  are            unpersuaded.  None  of the grounds that have compelled courts                                         -10-                                          10            to  deny voluntary motions to dismiss are present here.  See,                                                                     ___            e.g.,  Township of Benton v. County of Berrien, 570 F.2d 114,            ____   __________________    _________________            118-19 (6th  Cir. 1978) (denying  motion to dismiss  filed by            one  of   two  appellants  because  dismissal   "would  be  a            meaningless  gesture,"  where  both  appellants  pressed same            arguments, and both would be affected by decision); Blount v.                                                                ______            State  Bank & Trust  Co., 425 F.2d  266, 266 (4th  Cir. 1970)            ________________________            (denying   appellant's  motion   to  dismiss,   but  granting            appellee's because  appellant violated briefing  schedule and            caused appellee to file  motion to dismiss); Local  53, Int'l                                                         ________________            Ass'n  of Heat and Frost Insulators v. Vogler, 407 F.2d 1047,            ___________________________________    ______            1055 (5th  Cir. 1969)  (denying motion  and affirming  on the            merits  because  motion  to  dismiss  was  based  on  unsound            argument that appeal from injunction was moot since appellant            was voluntarily refraining  from enjoined conduct); see  also                                                                ___  ____            Washington  Dep't  of Fisheries,  573  F.2d  at 1118  (courts            _______________________________            "might have grounds" for denying motion to  dismiss if sought            to evade appellate review and to frustrate court orders).                        Furthermore, we note that  granting the Rule  42(b)            motion will  not shelter the remaining  claims from scrutiny.            We will simply be accepting plaintiffs' decision to let those            claims be  finally adjudicated  before bringing them  to this            court.  Creaton  v. Heckler,  781 F.2d 1430,  1431 (9th  Cir.                    _______     _______            1986).   The interests of  fairness and judicial  economy are            well served by  restricting our review to the leadtime issue,                                         -11-                                          11            the  sole   claim  both  parties  concede   we  must  decide.            Consequently, we  grant the motion for  partial dismissal and            decline to reach the merits of the third vehicle claim.                                           -12-                                          12                                         III.                                         III.                                       LEADTIME                                       LEADTIME                                       ________                      We turn  to whether the district  court was correct            in  denying a  preliminary injunction  based on  the leadtime            claim.  We will reverse only if the district court abused its            discretion or  made a manifest  error of  law.   Narragansett                                                             ____________            Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991).                 ____________    ________                      At issue is the proper construction of the leadtime            requirement.   The statute  at issue,   177  of the Clean Air            Act, 42 U.S.C.    7507, empowers states to adopt  and enforce            California emissions standards for vehicles and motor vehicle            engines  "for  any model  year,"  if  the state  adopts  such            standards  "at least  two years  before commencement  of such            model  year  (as  determined  by  regulations  of  the  [EPA]            Administrator)."2   The  parties  agree that  the model  year                                            ____________________            2.  Section 177 states, in pertinent part:                      Notwithstanding  [the statute  preempting                      state  emissions regulations],  any State                      which  has  plan   provisions  [for   the                      attainment and maintenance of  the NAAQS]                      may adopt and enforce for  any model year                      standards   relating    to   control   of                      emissions from new motor vehicles  or new                      motor vehicle engines . . . if --                      (1)  such standards are identical to  the                      California standards for  which a  waiver                      has been granted for such model year, and                      (2)  California and such State adopt such                      standards  at  least  two   years  before                      commencement  of  such  model   year  (as                      determined   by    regulations   of   the                      Administrator).            42 U.S.C.   7507.                                         -13-                                          13            designation of  any particular  vehicle depends on  when that            model or engine was produced.  According to EPA, a model year            is either the calendar year, or the manufacturer's production            period, lasting no  longer than  a day less  than two  years,            i.e., from January  2 of the preceding  year through December            ____            31 of the  calendar year for which  the model year is  named.            40 C.F.R.    86.082-2  ("model year"  means calendar year  or            "the  manufacturer's annual production  period (as determined            by the [EPA] Administrator)"); EPA, Office of Mobile Sources,            Advisory  Circular 6B  (1987) (hereinafter  Advisory Circular            6B) (defining annual production period).3                        The  parties dispute  whether or  not  the leadtime            requirement applies on an  industry-wide basis.  According to            plaintiffs,  all 1995  models sold  in Massachusetts  must be            federal  cars because  GM and  Chrysler began  producing 1995            models prior to  January 31, 1994.  In other words, the model                                            ____________________            3.  Advisory Circular 6B states, in pertinent part:                      The  "annual  production period"  for any                      specific model within an engine family of                      light-duty vehicles or heavy-duty engines                      begins either:  (1)  when such vehicle or                      engine  is  first  produced,  or  (2)  on                      January 2 of the calendar  year preceding                      the  year  for which  the  model year  is                      designated, whichever date is later.  The                      annual  production  period  ends  either:                      (1) when the last such vehicle  or engine                      is produced, or (2) on December 31 of the                      calendar year for which the model year is                      named, whichever date is sooner.                                         -14-                                          14            year began less than  two years after the LEV  standards were            adopted.                        Basing its interpretation  on Advisory Circular 6B,            with support from EPA's amicus brief, DEP demurs, maintaining            that the leadtime requirement is satisfied as to any model in            an  "engine family"  first produced  after January  31, 1994.            The   record  indicates   that  an   "engine  family"   is  a            classification used to group  together vehicles that have the            same emissions  control design.  DEP's  standards would apply            only  to  models  or  engine families  first  produced  after            January   31,   1994.      Plaintiffs    characterize   DEP's            interpretation as "splitting" the model year because the 1995            standards would apply to some, but not all 1995 cars.                      The  district  court's position  approximated DEP's            (and EPA's):  "`The failure to provide the statutory leadtime            to a particular manufacturer for a particular model year does            not invalidate the standards  themselves.  Instead, it merely                __________            renders  them unenforceable  as  against those  manufacturers            which  were  not  given  the  requisite  two-years  notice.'"            American Automobile  Mfrs. Ass'n v. Greenbaum,  No. 93-10799-            ________________________________    _________            MA, slip op. at 23 (D. Mass. Oct. 27, 1993) (quoting New York                                                                 ________            DEC, 831 F.  Supp. at 64 (emphasis in original)).   The court            ___            did  not rule on whether  each engine family  has a different            model  year  commencement  date,  but  noted  that   Advisory                                         -15-                                          15            Circular 6B "seems to  support DEP's understanding."   Id. at                                                                   ___            23 n.20.                         Plaintiffs' industry-wide date for the commencement            of  the model  year prevailed  in the  Second Circuit.   That            court held that EPA's position  was not entitled to deference            because  it was  "newly  minted" for  litigation and  was not            embodied in a regulation under   177.  MVMA, 17  F.3d at 535.                                                   ____            Moreover,  the  court  found  an  industry-wide  date  to  be            consistent   with   Congressional    intent,   while    EPA's            interpretation was unprecedented  and "unreasonable"  because            it  would be  confusing to  the  industry and  impractical to            enforce.   Id. at 535-36.   Plaintiffs urge us  to follow the                       ___            Second Circuit.  We decline to do so.                       In the  first place, we  are not confronted  with a            regulatory  program identical to that at  issue in the Second            Circuit.      New   York,   like   California,   but   unlike            Massachusetts,   imposed   fleet   average  requirements   to            determine  the mix of vehicles  sold in the  state each year.            The Second Circuit determined that the leadtime provision was            "best read"  with an industry-wide commencement  date because            splitting  the  year  would   "unduly  complicate  the  fleet            averaging  plan."  MVMA, 17 F.3d at 535.  Manufacturers would                               ____            be  unable  to buy  and sell  emissions  credits to  meet the            requirements  because some of them would  have to comply with            1995 standards, but others would not.  Id.  We agree with the                                                   ___                                         -16-                                          16            Second Circuit that fleet averaging might be more complicated            in   the  first  year   that  California-type  standards  are            effective  in a   177 state, but we discount the significance            of   that  consideration.    Fleet  averaging  for  emissions            programs is  a concept  devised by California,  not Congress.            Although  the Second Circuit found fleet  averaging to be the            "crux" of the  LEV plan, id., neither party  in this case has                                     ___            argued that  under    177,  states must  adopt fleet  average            requirements.4   Accordingly,  the  extent to  which a  split            model    year    interpretation   unduly    complicates   the            administration  of  fleet   averaging  is  not   a  pertinent            consideration.                        Furthermore,  we  do  not  agree  with  the  Second            Circuit's characterization of EPA's definition as having been            "newly  minted" for  litigation.   EPA  did  not develop  its            interpretation during litigation.  Rather, the  agency issued            Advisory   Circular  6B   in   1987,  while   New  York   and            Massachusetts adopted California's requirements in 1992.  And            in  a letter dated March 8, 1991, to Congressman John Dingell            (D. Mich.), the EPA  Administrator cited Advisory Circular 6B            for the  premise that "a state  adopting California emissions            standards  may apply  these  standards to  any engine  family                                            ____________________            4.  The automakers'  position during DEP's notice and comment            period for the LEV program (which originally included a fleet            averaging scheme) was that fleet averaging violates the third                                                       ________            vehicle provision by restricting a manufacturer's ability  to            sell California cars in the state.                                           -17-                                          17            whose  production period begins on a date which is beyond two            years past  the date that the standards were adopted . . . ."            It is  significant that  EPA's interpretation did  not spring            from  a litigator's  self-spun argument,  but arose  prior to            litigation,  and  was expressed  by  the  Administrator in  a            letter  to a member of  Congress from Michigan.   See Federal                                                              ___ _______            Labor Relations  Auth. v.  United States  Dep't of Navy,  941            ______________________     ____________________________            F.2d   49,  59   (1st   Cir.  1991)   (deferring  to   agency            interpretation first  announced  in amicus  brief  and  later            adopted as  "official" agency position by  agency director in            unpublished  letter); cf.  Martin v. Occupational  Safety and                                  ___  ______    ________________________            Health  Review Comm'n,  111 S.  Ct. 1171,  1179 (1991)  ("Our            _____________________            decisions indicate that agency `litigating positions' are not            entitled  to   deference  when  they  are   merely  appellate            counsel's  `post  hoc  rationalizations' for  agency  action,                        ____  ___            advanced for the first time in the reviewing court.").                            Based  on  the  statutory  requirement  that "model            year" be  determined by  EPA regulations, the  Second Circuit            held  that  Congress intended  that  EPA  would promulgate  a            regulation  defining "model year" under   177.  MVMA, 17 F.3d                                                            ____            at 535.  We  disagree.  We find that  a regulatory definition            predating   177 satisfies the statute.  Congress's use of the            passive  voice   indicates   that  an   existing   regulatory            definition  would suffice.  Compare    177, 42  U.S.C.   7507                                        _______            ("as determined by  regulations of the  Administrator") with,                                                                    ____                                         -18-                                          18            e.g.,  id.      7521(a)(1)  ("the  Administrator  shall"   by            ____   ___            regulation prescribe federal auto emission requirements).  In            1970,  Congress  passed  42  U.S.C.     7521(b)(3)(A),  which            defines  "model  year,"  for  the  purposes  of  the  federal            emissions control  program, as  the "calendar year,"  or "the            manufacturer's annual production period (as determined by the            [EPA]  Administrator)  which  includes   January  1  of  such            calendar year. .  . ."   The regulatory  definition of  model            year  in  effect  when      177  was  enacted  tracked   that            definition:  "`Model year' means [the  calendar year, or] the            manufacturer's annual production period (as determined by the            Administrator) which includes January 1 of such calendar year            . . . ."  40 C.F.R.   86.082-2.                       We also  reject the  Second Circuit's  finding that            Congress  could  not  have  contemplated  that  the  leadtime            provision might apply  on an engine-family  basis.  MVMA,  17                                                                ____            F.3d at 535.  We note first that what Congress "contemplated"            is  of  limited  relevance,  given  that  EPA  was  expressly            authorized  to   define  when   the  model  year   commences.            Moreover,  since  1972,  EPA has  issued  advisory  circulars            describing how to determine the  model year "for any specific            model within an engine family."  E.g., Advisory Circular  6A,                                             ____            at 2  (Sept. 1, 1972).  And while EPA has never implemented a            split model year in the federal emissions control program, we            do not place great weight on  this.  There are relatively few                                         -19-                                          19            leadtime provisions  in the  Clean Air Act  emissions control            program.    Because  states  with     177  programs  are,  by            definition, encountering significant air  pollution problems,            and because Congress expressly delegated to EPA the power  to            define  model  year under     177,  EPA may  identify  policy            considerations   allowing  it   to   construe  the   leadtime            provisions  in the  federal program  differently from    177.            See  Comite pro Rescate de  la Salud v.  Puerto Rico Aqueduct            ___  _______________________________     ____________________            and  Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1989) ("[W]here            ________________            the reason  for the  court's `deference' reflects  its belief                ______            that Congress, in effect, delegated to the agency a degree of                                      _________            interpretive power, it does  not seem odd to find  the agency            interpreting  the same  words  somewhat  differently as  they            apply  to different parts of  the statute in  order better to            permit  that  statute to  fulfill  its  basic congressionally            determined  purposes." (emphasis in original)), cert. denied,                                                            _____ ______            494 U.S. 1029 (1990).                        On  the other  hand, one  might argue that  a court            owes EPA's  interpretation no  deference because the  statute            requires EPA  to define  "model year" by  "regulation," while            EPA's  definition  is found  not in  a  regulation, but  in a            policy statement  (Advisory Circular 6B).  See  MVMA, 17 F.3d                                                       ___  ____            at  535 ("Section 177 charges the EPA with the single, narrow            responsibility to issue `regulations'  in order to define the            commencement of a  model year under   177.   The EPA Advisory                                         -20-                                          20            Circular  . . . is not a  `regulation' for   177 purposes and            was not promulgated specifically to implement  this provision            . . . .").  Plaintiffs failed to make such an argument to the            district  court and  compounded  that error  by omitting  the            point from their  opening brief.5  See McCoy v. MIT, 950 F.2d                                               ___ _____    ___            13, 22 (1st Cir. 1991) ("It is hornbook law that theories not            raised squarely in  the district court cannot be surfaced for            the  first time on appeal."),  cert. denied, 112  S. Ct. 1939                                           _____ ______            (1992);  see also Frazier v.  Bailey, 957 F.2d  920, 932 n.14                     ___ ____ _______     ______            (1st Cir. 1992)  (arguments raised  only in  reply brief  are            insufficient  to preserve  claim  on appeal).   Until  filing            their reply brief in this  court, plaintiffs failed to assert            that no EPA definition of model year existed for the purposes            of    177,  and in  fact cited  Advisory Circular  6B and  40            C.F.R.    86.082-2 to the district court for the premise that            the  model year  began  on  January  2,  1994.    See,  e.g.,                                                              ___   ____            Plaintiff's Mem. of Law  in Support of Mot. for S.J.,  at 44;            First  Amended   Complaint      55  ("As  defined   by  EPA's            regulations,  the  1995  model  year commences  as  early  as            January 2, 1994.  See 40 C.F.R.   86-082-2 (1992); EPA Office                              ___            of Mobile Sources Circular 6B (1987).").                                            ____________________            5.  Plaintiffs argued  below and in their  opening brief that            Congress's use  of the terms "commencement"  and "model year"            in the singular foreclosed a "split" model year, that such an            interpretation would  have adverse  effects on  the industry,            and that EPA had never used a split model year in the federal            emissions control program.                                           -21-                                          21                      We have recognized  an exception  to the  raise-or-            waive rule where the argument surfacing for the first time on            appeal is "`so compelling  as virtually to insure appellant's            success,'" and  a  "`gross  miscarriage  of  justice'"  would            result from our failure  to address it.  Johnston  v. Holiday                                                     ________     _______            Inns,  Inc., 595  F.2d  890, 894  (1st Cir.  1979) (citations            ___________            omitted); accord United States v. Slade, 980 F.2d 27, 31 (1st                      ______ _____________    _____            Cir. 1992).   The argument  here is not  so compelling as  to            assure plaintiffs'  success.   EPA's interpretation of    177            would be entitled to  some weight, where EPA  administers the            federal  emissions  program and  is  charged with  evaluating            whether state plans for meeting the NAAQS are consistent with            the Act.  See 42 U.S.C.   7410(k)(3).                        ___                      Furthermore, plaintiffs  do  not contend  that  our            failure  to  consider  the   argument  would  cause  a  gross            miscarriage of justice.  Nor could  they so contend.  In  the            first place, this is  an interlocutory appeal; plaintiffs may            raise  the  argument  in  the district  court  before  issues            pertaining to the 1995  requirements become moot, because the            model year for any vehicle lasts until December 31, 1995.  In            addition, this is not a case in which an appellant might lose            her home, see  United States v. One Urban Lot,  885 F.2d 994,                      ___  _____________    _____________            1001-02  (1st   Cir.  1989),  or  a   prisoner  might  remain            incarcerated, see United States v. La Guardia, 902 F.2d 1010,                          ___ _____________    __________            1013  (1st Cir.  1990), if  we deem  the issue  waived.   And                                         -22-                                          22            though the  question before us, concerning  the earliest date            vehicles  outside California might  be subject to California-            type emissions standards, is certainly one of interest to the            public, the degree of public interest pales in contrast  with            that  involved  when  the   federal  government's  right   to            prosecute  suspected  criminals  is at  issue,  e.g.,  United                                                            ____   ______            States v. Krynicki, 689 F.2d 289, 292 (1st Cir. 1982).  These            ______    ________            cases show the gulf that exists between  the prospective harm            here and  the type of harm that permits serious consideration            of  relaxing the  raise-or-waive  rule, within  the reviewing            court's discretion.  Accordingly, we find the argument waived            for the purposes of this appeal.                      Assuming, therefore, that the regulatory definition            of  model  year required  by    177  is embodied  in Advisory            Circular 6B, we next  inquire whether EPA's interpretation is            arbitrary, capricious, or manifestly contrary to the statute.            Chevron U.S.A.,  Inc. v. Natural  Resources Defense  Council,            _____________________    ___________________________________            467 U.S. 837, 843-44  (1984).  Such deference is  due because            Congress explicitly  delegated to EPA, the agency responsible            for administering the federal  emissions program, the task of            defining model year under   177.                        Plaintiffs   argue   that  applying   the  leadtime            requirement  to   individual   models  or   engine   families            contradicts Congress's intent made manifest by the  statute's            use  of  the terms  "commencement"  and "model  year"  in the                                         -23-                                          23            singular.  We disagree.   At best, the statutory  language is            ambiguous  with respect to  whether the  leadtime requirement            might  apply on  an  industry-wide or  engine-family-specific            basis.  See  42 U.S.C.    7507 (State "may adopt  and enforce                    ___            [standards] for  any model year .  . . if-- .  . . California            and such State adopt such standards at least two years before            commencement of such model year . . . .").  An examination of            other  leadtime  provisions enacted  in  1977  for the  Act's            federal emissions program does  not clarify the issue because            those  provisions generally  pertain  to heavy  duty engines,            whose model year commencement  date, according to the record,            is  always January 1 of  the calendar year.   Moreover, those            provisions could  be read with either  an industry-wide model            year  commencement  date,  or separate  dates  for  different            engine families.  E.g.,  42 U.S.C.   7521(a)(3)(E)(ii) (1988)                              ____            ("No such  changed standard  shall apply  for any model  year            before  the model year four years after the model year during            which  regulations  containing   such  changed  standard  are            promulgated.") (repealed in 1990).                        Moreover,  the  legislative  history of     177  is            generally  unenlightening.6    Congress clearly  enacted  the                                            ____________________            6.  Plaintiffs,  in a  footnote,  quote a  1990 statement  of            Senator Nickles:                      If   a   State   follows  the   necessary                      procedures, California standards can take                      effect in the first model year commencing                      2 model years after the State has adopted                      the  California standards.  Thus, a State                                         -24-                                          24            leadtime provision for the manufacturers' benefit.  H.R. Rep.            No. 294, 95th Cong., 1st Sess. 310 (1977) ("Manufacturers are            not  only   assured  of   identity  of  standards   and  test            procedures; they are also  assured adequate lead time."); see                                                                      ___            also  MVMA, 17 F.3d at 535.  Although plaintiffs would prefer            ____  ____            that  all  1995  cars  be  subject  to  the  same  regulatory            requirements,  that is  not  necessarily the  import of  that            statement of legislative intent.  EPA's interpretation grants            every  manufacturer two years  to develop  emissions controls            and to  devise marketing and distribution  strategies for any            new vehicle  or  engine  family  subject  to  California-type            standards.    There is  no  inherent  conflict between  EPA's            interpretation and Congress's intent.7                      Plaintiffs maintain that EPA's  interpretation does            not  reflect  a reasonable  policy  determination  because it            would cause "enormous competitive and practical problems," in            that California-type  requirements would apply  to some  1995                                            ____________________                      that  adopted   fully  waived  California                      standards  in  November  1992 could,  for                      example, have those standards take effect                      beginning in model year 1996.             136 Cong. Rec. S18274 (daily ed. Nov. 2, 1990).  The leadtime            provision  was enacted in 1977  and was not  amended in 1990.            We give  little weight to  the remarks of a  single member of            Congress, made thirteen years after  a statute is passed,  in            divining legislative intent.               7.  DEP  notes  that  EPA's interpretation  has  one salutary            effect for the industry:   each manufacturer could determine,            from  its  own production  schedules,  not  the schedules  of            others, whether to produce federal or California cars for the            first year in which California-type standards are in effect.                                         -25-                                          25            vehicles,  while the  remainder would  be subject  to federal            standards.   Appellants' Br. at 46.  According to plaintiffs,            this  split would  cause dealer  and consumer  confusion, the            disruption of vehicle  distribution systems, and  competitive            disadvantages  for  some  dealers  and  manufacturers.    DEP            argues, however,  that these  concerns are  overstated, given            the widespread use of computerized inventory controls.  Also,            on  the other side of the balance  is the state's interest in            applying California  requirements to  some models as  soon as            possible.  Any vehicle subject to regulatory controls will be            subject  to those  controls  for the  vehicle's useful  life.            Conversely, vehicles  escaping the  controls may travel  over            Massachusetts  highways  for  years  emitting  pollutants  in            excess of California standards.  Whether EPA's interpretation            imposes   greater   costs   than   benefits   is   a   policy            determination.  "When Congress, through express delegation or            the  introduction of  an  interpretive gap  in the  statutory            structure,  has  delegated  policy  making  authority  to  an            administrative agency,  the extent of judicial  review of the            agency's  policy  determinations  is   limited."    Pauly  v.                                                                _____            Bethenergy Mines, Inc.,  111 S.  Ct. 2524, 2534  (1991).   We            ______________________            will  reject  the  agency's  interpretation  only  if  it  is            arbitrary  or illegal.  It is neither.  Accordingly, based on            the  assumption   that  Advisory  Circular   6B  provides   a                                         -26-                                          26            regulatory definition of "model  year" for the purposes  of              177, we conclude that the leadtime requirement was satisfied.                      The  likelihood  of  success  on the  merits  is  a            predicate  to  the  issuance  of  a  preliminary  injunction.            Plaintiffs failed to establish  such a likelihood.  Moreover,            plaintiffs  "have  not  persuaded  us that  the  lower  court            overlooked  pertinent  factors,   focused  on   inappropriate            factors,  or made a  serious error in  weighing and balancing            the  relevant concerns."  Weaver, 984 F.2d at 14.  Therefore,                                      ______            we  hold that the district court did not abuse its discretion            in refusing to enjoin the 1995 standards.                                                       -27-                                          27                                         IV.                                         IV.                                    COSTS AND FEES                                    COSTS AND FEES                                    ______________                      DEP  argues  that  it  is  entitled  to  costs  and            attorney's fees.  Prevailing parties are normally entitled to            costs.  Fed. R. App. P. 39; 9 James W. Moore  et al., Federal                                                                  _______            Practice   239.02[1],  at 39-6  to -7  (2d ed.  1994).8   And            ________            costs are  routinely available whenever this  court dismisses            an  appeal, even if the  appellant moved for  dismissal.  See                                                                      ___            Waldrop v. Department of Air Force, 688 F.2d 36, 37 (7th Cir.            _______    _______________________            1982).                        On  the other  hand, DEP's argument  for attorney's            fees must  be rejected.   DEP  seeks reimbursement  for legal            fees  incurred in responding to the appeal on the claims that            were dismissed  pursuant to Rule  42(b).  Neither  Rule 42(b)            nor  Rule  39  provides   authority  for  routine  awards  of            attorney's  fees  as  a  condition  of  voluntary  dismissal.            Waldrop, 688  F.2d at 37-39.  While fees may be awarded if an            _______            appellant  has filed a frivolous  appeal or has  acted in bad            faith, see Cruz  v. Savage,  896 F.2d 626,  631-32, 635  (1st                   ___ ____     ______            Cir. 1990), we find no evidence of such conduct here.  We are                                            ____________________            8.  Rule 39 states:                      Except as otherwise  provided by law,  if                      an  appeal is  dismissed, costs  shall be                      taxed   against   the  appellant   unless                      otherwise . . . ordered by the court; . .                      . if  a judgment is affirmed  or reversed                      in part,  or is vacated,  costs shall  be                      allowed only as ordered by the court.                                           -28-                                          28            unpersuaded by  DEP's attempt to characterize  the weeks that            transpired between the issuance of the Second Circuit opinion            and  the   motion  for  partial  dismissal   as  evidence  of            plaintiffs' vexatiousness.   It takes time to  evaluate a new            opinion,  and to  confer with  the client  on an  appropriate            strategy.                                            V.                                          V.                                      CONCLUSION                                      CONCLUSION                                      __________                      For the foregoing reasons,  we grant the motion for            partial dismissal  and affirm the  district court's  decision            not  to enjoin  the  1995 requirements  based on  plaintiffs'            leadtime claim.  Costs to DEP.                      It is so ordered.                      It is so ordered.                      _________________                                         -29-                                          29
