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.
The CAA contemplated that the states would carry out their responsibility chiefly
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.
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.
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.
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.
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 sources. The amendments altered the definitional section of Title II, adding definitions of "nonroad engine"
EMA challenges three aspects of the EPA's § 209(e) rulemaking: (1) the adoption of a "showroom-new" definition of "new" under § 209(e)(1), rather than a date-certain definition; (2) the interpretation of § 209(e)(2) to preempt state regulation of only "new" nonroad engines and vehicles, rather than to preempt state regulation of all nonroad engines and vehicles, "new" and non-"new," not covered in § 209(e)(1); and (3) the interpretation of § 209(e)'s ban on state "standards and other requirements" not to reach the states' so-called "in-use" regulations.
Following publication of the NPRM, EMA and other commenters argued unsuccessfully that "new" should mean either that the engine or vehicle was manufactured after the effective date of the 1990 amendments, or that the engine had yet to be rebuilt. EMA claimed that Allway Taxi Inc. v. City of New York, 340 F.Supp. 1120 (S.D.N.Y.) (interpreting § 209(a) motor vehicle preemption), aff'd,
Id. at 1124. Therefore, EMA commented, even if the EPA wanted to create a parallel regime for nonroad engines and vehicles, it should not adopt a definition of "new" that ended preemption at the moment of title transfer. The EPA noted these concerns, which of course would apply equally to the statutory definition of "new motor vehicle," and stated in the final rule that it expected courts to apply Allway Taxi's reasoning to the EPA's definition of "new nonroad engine."
The EPA, in contrast, requests that we dismiss EMA's challenge to the EPA's decision to permit states to adopt in-use regulations. The NPRM contained a sentence, quoted above, in which the EPA proposed to permit states to adopt such regulations in spite of the § 209(e)(2) preemption. None of the EMA petitioners challenged this proposal during the notice and comment period. The EPA argues that EMA is therefore precluded from challenging the in-use aspect of the final rule. Congressmen Dingell and Bruce, however, did challenge the proposal in a letter to the Administrator:
In the final rule, while not referring to the Congressmen's criticism on this point, the EPA discussed at length why it believed § 209(e)(2) did not preempt in-use regulations.
As noted previously, the § 209(e) rulemaking is not governed by the special standards of § 307(d) of the CAA. Under the common law doctrine of exhaustion of remedies, EMA may raise the issue here, even if it did not raise it during the rulemaking itself, so long as the agency actually considered the issue. NRDC v. EPA, 824 F.2d 1146, 1150-52 (D.C.Cir.1987) (in banc). Cf. ASARCO, Inc. v. FERC, 777 F.2d 764, 773-74 (D.C.Cir.1985) (Natural Gas Act). Because the Congressmen directly challenged the agency on the very point that EMA raises in its petition for review, and the EPA defended its position at some length in the final rule, EMA is not barred from arguing the issue now. We therefore turn to the merits of the EMA petitions.
Our standard of review for both the EMA and the NMA petitions follows a familiar path. The court will uphold the EPA's final rule "[i]f EPA acted within its delegated statutory authority, considered all of the relevant factors, and demonstrated a reasonable connection between the facts on the record and its decision." Ethyl Corp. v. EPA, 51 F.3d 1053, 1064 (D.C.Cir.1995).
Although EMA presents various reasons why the EPA's definition of "new" should not survive Chevron review, none is convincing. EMA first maintains that Congress' failure to define "new nonroad engine" and "new nonroad vehicle" compels the conclusion that these terms do not have a meaning analogous
Congress did amend the definition of "manufacturer" in § 216(1) to mean "any person engaged in the manufacturing or assembling of new motor vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad engines."
"New" is used in other parts of the CAA in the sense urged by EMA, most obviously in Title I in connection with the states' obligation to regulate and review the construction of "new" stationary sources. For example, § 111(a)(2) defines "new source" as "any stationary source, the construction or modification of which is commenced after the publication of regulations ... prescribing a standard of performance under this section which will be applicable to such source."
Nor is it mere textual proximity that leads to this conclusion. The CAA's treatment of nonroad source regulation is almost identical to its treatment of motor vehicle regulation. For instance, under § 213(d), the EPA's emissions standards for nonroad sources "shall be subject to sections [206, 207, 208, and 209] ... and shall be enforced in the same manner as standards prescribed under
In addition, the structure of nonroad source regulation is similar to that for motor vehicle regulation, and dissimilar to that for stationary source regulation, in that the EPA is given the principal role in setting standards and the states are preempted from intruding too greatly. There are also two explicit textual indications that Congress classified nonroad sources together with motor vehicles and distinguished them from stationary sources.
EMA also contends that the EPA's definition would render § 209(e)(1) a "nullity" because it would apparently permit the states to regulate emissions from the moment a nonroad engine was first put into operation. The EPA correctly responds that if that were so, then the statutory definition of "new motor vehicle" would render § 209(a) a "nullity." Not only has this not happened — the preemption scheme for motor vehicles has been working for almost thirty years — but the statute cannot be said to speak to the issue involved here, and against the EPA's definition, when Congress, operating under almost identical statutory language in the motor vehicle preemption regime, expressly used a virtually identical definition of "new." The Allway Taxi interpretation, postponing state regulation so that the burden of compliance will not fall on the manufacturer, has prevented the definition of "new motor vehicle" from "nullifying" the motor vehicle preemption regime. EMA has offered no reason to suspect an essentially identical definition of "new nonroad vehicle" will nullify the nonroad preemption scheme either.
EMA's reliance on the legislative history fares no better. The House bill contained a preemption provision; the Senate bill did not. The conference produced a version of preemption that was quite different from the one the House had passed. EMA's most promising reference is to an excerpt from a House committee report on the House bill that reads:
H.R.Rep. No. 409, 101st Cong., 2d Sess., pt. 1, at 310 (1990). In this paragraph, the House committee appears to consider "new" to be the opposite of "existing," which argues for EMA's date-certain definition. Nor would this be unprecedented; as discussed, § 111 adopts the same new/existing dichotomy regarding stationary sources. Nonetheless, this isolated pair of sentences out of a mass of legislative history is insufficient to bar the EPA's interpretation, especially because it was written before the conferees substantially altered the preemption language in the House bill as part of a compromise with the Senate bill that contained no preemption. EMA also refers to letters from Congressmen to the EPA Administrator during the rulemaking, in which the Congressmen purport to explain Congress's intent at the time of the amendment. Even EMA concedes that such post-enactment statements cannot be used to change Congressional intent that is not announced at the time of enactment. See Bread Political Action Comm. v. FEC, 455 U.S. 577, 582 n. 3, 102 S.Ct. 1235, 1238 n. 3, 71 L.Ed.2d 432 (1982); Regional Rail Reorg. Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974). At best, these are statements that the EPA could take into account in deciding on a reasonable interpretation of the statute, and the EPA explicitly addressed the Congressmen's comments in the final rule.
For all of EMA's efforts, the statute does not foreclose the EPA at Chevron step one. At Chevron step two, there may be room for differing views of the statutory language and legislative history, but the EPA was within the bounds of permissible construction in analogizing § 209(e) on nonroad sources to § 209(a) on motor vehicles. EMA cannot show that the EPA's decision to harmonize §§ 209, 213, and 216 by interpreting "new" consistently throughout all three sections was impermissible. See 56 Fed.Reg. at 45,867. Congress could have chosen a different scheme for nonroad sources, but in the absence of any indication in the statute or the legislative history that it did, EMA's failure to explain why nonroad engines are in some relevant respect different from motor vehicles undercuts any claim that the EPA's interpretation of "new" is impermissible.
EMA contends that by limiting the preemption to new nonroad engines and vehicles, the EPA violated § 209(e)(2)'s plain statement that California may seek authorization to regulate "any nonroad vehicles or engines other than those referred to" in § 209(e)(1). In effect, EMA maintains, the EPA has amended the statute to read: "any new nonroad vehicles or engines other than those referred to" in § 209(e)(1). Section 209(e)(1) expressly preempts state standards for emissions "from either of the following new nonroad engines or nonroad vehicles." EMA argues that Congress, after defining the two categories in § 209(e)(1) as "new," must be presumed to have acted intentionally in omitting "new" from § 209(e)(2).
The EPA first contends that because § 209(e)(2) does not mention preemption at all, it is necessarily silent as to the scope of the implied preemption, and, therefore, the court must proceed to Chevron step two. The question at step one, however, is whether "the intent of Congress is clear ... for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. To determine Congressional intent, we must use "traditional tools of statutory construction." Id. at 843 n. 9, 104 S.Ct. at 2782 n. 9. The most traditional tool, of course, is to read the text; if it clearly requires a particular outcome, then the mere fact that it does so implicitly rather than expressly does not mean that it is "silent" in the Chevron sense. Ethyl Corp., 51 F.3d at 1060. That is the situation in the instant case. As all parties recognize, the authorization regime makes sense only if all states are preempted from adopting regulations for which California may seek authorization. It is clear from the text and structure of the statute, therefore, that Congress intended to preempt state regulation, and it is equally clear that it intended the scope of preemption to be the same as the scope of permissible authorization. The EPA's own analysis of the statute is that the implied preemption must go "hand-in-hand" with the authorization scheme in § 209(e)(2). If the scope of the authorization regime is clear in the statute, the scope of the implied preemption can be resolved at Chevron step one. Hence, we must reject the EPA's argument that the statute is silent on this issue and turn instead to its analysis of the oddity that would result from EMA's reading of the statutory language.
As we do so, it is important to understand the limitations of an argument based on the supposed "oddity" of plain statutory language. "The plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" United States v. Ron Pair Enterp., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). Thus, if apparently plain language compels an "odd result," the court may refer to evidence of legislative intent other than the text itself, such as the legislative history. Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989) (quoting Green v. Bock Laundry Machine Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 1985, 104 L.Ed.2d 557 (1989)). While literal interpretation need not rise to the level of "absurdity" before recourse is taken to the legislative history, however, id. at 453 n. 9, 109 S.Ct. at 2567 n. 9, there must be evidence that Congress meant something other than what it literally said before a court can depart from plain meaning. In the absence of such evidence, the court cannot ignore the text by assuming that if the statute seems odd to us, i.e., the statute is not as we would have predicted beforehand that Congress would write it, it could be the product only of oversight, imprecision, or
The EPA's strongest arguments arise from an apparent tension between two aspects of the authorization regime. The Administrator may authorize California to adopt standards and other requirements "if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards." CAA, § 209(e)(2)(A), 42 U.S.C. § 7543 (1994). Because § 213(a) authorizes the EPA to regulate only new nonroad engines and vehicles, if California must seek EPA authorization when regulating non-new engines and vehicles, there will apparently be no "applicable Federal standards" to compare with the California regulations. From this the EPA makes two arguments: first, because there will be no federal standards in such a case, the statute does not provide any basis for the EPA to determine whether to authorize a proposed California regulation; and second, because the EPA cannot regulate non-new engines and vehicles, Congress could not have intended also to preempt the states from regulating such engines and vehicles, leaving major pollution sources unregulated by anyone.
As to the EPA's first argument, EMA points out that it is possible for the EPA to review proposed California standards under the statutory criteria even when there are no comparable federal regulations. EMA maintains that when there are no applicable federal standards, California's regulation will necessarily be "as protective of public health and welfare," and therefore the first requirement of § 209(e)(2)(A) will be satisfied.
Nor does the "regulatory gap" cited by the EPA show that a literal reading of the statute is "demonstrably at odds" with Congressional intent. First, the gap is illusory, for the statute does not exempt any class of nonroad sources from regulation. The EPA has sole authority over the classes of new nonroad sources defined in § 209(e)(1). The EPA and California have joint authority over all other new nonroad sources. On this much, all parties agree. The dispute is whether all states have independent authority to regulate non-new sources, or whether California has sole authority over such sources, with other states permitted to opt in to California regulations. Thus, the question is not whether the statute leaves some sources unregulated, but rather whether it permits up to 50 different sets of regulation or requires uniformity. Moreover, under the EPA's interpretation, even if states other than California are preempted from independently adopting emissions standards for non-new sources, each state can still adopt its own in-use regulations. See infra Part II B 3. So far as we can tell, the supposed "gap" created by a literal interpretation turns out to be not really a gap at all, and in light of the permitted in-use regulations, not a particularly large one in any event.
Given the indications before Congress that California's regulatory proposals for nonroad sources were ahead of the EPA's development of its own proposals and the Congressional history of permitting California to enjoy coordinate regulatory authority over mobile sources with the EPA, the decision to identify California as the lead state is comprehensible. California has served for almost 30 years as a "laboratory" for motor vehicle regulation. See MEMA, 627 F.2d at 1110. Its severe air pollution problems, diverse industrial and agricultural base, and variety of climatic and geographical conditions suit it well for a similar role with respect to nonroad sources. As was the case when Congress first regulated motor vehicle emissions, California was already in the lead on nonroad sources in 1990.
Assuming that the result apparently compelled by the text is sufficient to require recourse to the legislative history, we find the historical record to be of little assistance. As we have previously noted, the Senate bill did not contain any preemption, and this was done intentionally to protect California's efforts to meet its own needs by developing nonroad emission standards, which were already well ahead of the EPA's.
There are, in fact, only a few scattered pieces of evidence about what the conferees intended, or what the members of both Houses thought they were voting for when the bill emerged from conference. In the end-of-session haste in which this huge bill was passed,
The EPA also relies on a memorandum of the staff of the Conference Committee. See supra n. 40. The memorandum notes that all states are preempted from regulating new nonroad sources in the two § 209(e)(1) categories. It goes on to say: "With respect to other covered nonroad sources, California would be permitted to set standards, and other states would be permitted to opt-in to the California standard." (emphasis added). The EPA contends that "covered" here is synonymous with "new," for "covered" must refer to sources covered in § 213, which gives the EPA regulatory authority over only new nonroad sources. The memorandum cannot carry the day for the EPA. First, a staff memorandum is hardly authoritative. Second, it is unclear that "covered" can only be understood to mean "new" because it could just as easily refer to the scope of the bill's definition of "nonroad engine" and "nonroad vehicle." Clear statutory text cannot be trumped by an ambiguous phrase from a document that was not promulgated by a single Member of Congress, let alone adopted by a committee or Congress as a whole.
In sum, the legislative history is unhelpful. In determining what the members of Congress intended to vote for, the legislative history provides no basis for the court to conclude that they voted for a regulatory scheme other than that provided by the words in the statute. The haste and confusion attendant upon the passage of this massive bill do not license the court to rewrite it; rather, they are all the more reason for us to hew to the statutory text because there is no coherent alternative intention to be gleaned from the historical record. "In such a substantial overhaul of the system, it is not appropriate or realistic to expect Congress to have explained with particularity each step it took. Rather, as long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute." Ron Pair, 489 U.S. at 240-41, 109 S.Ct. at 1030 (construing Bankruptcy Code of 1978); see also id. at 243 n. 6, 109 S.Ct. at 1031 n. 6 (declining to depart from text where legislative history was almost silent on provision at issue). Essentially, the EPA concludes that the conferees inadvertently left out the word "new" in § 209(e)(2), and the EPA is, in fact, adhering to what was intended.
Some form of the word "require" appears in both § 209(a) and § 209(c):
42 U.S.C. § 7543(a), (c) (1994) (emphasis added). Also, § 209(d) preserves the right of states "otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles." 42 U.S.C. § 7543(d) (1994). The EPA contends that the term "requirement" in § 209 must mean "certification, inspection, or approval" requirements of the kind preempted in § 209(a) and (c), and that § 209(d) shows that "requirement" does not include use restrictions.
EMA responds that in subsections (a) and (c), Congress expressly modified "require[ment]" with the phrase "certification, inspection, or  approval." In § 209(e), by contrast, Congress referred to "other requirements" without modification. Thus, to give effect to the different language, "requirement" must include more than just certification, inspection, or approval requirements. Subsections (a) and (c) apply only to particular types of requirements listed in the subsections, while subsection (e), with no limiting language, pertains to all types of requirements. However, EMA's argument overlooks another feature of the statutory language that supports the EPA's interpretation. Section 209(e)(2)(A) requires the Administrator to authorize California to adopt "standards and other requirements relating to the control of emissions," but § 209(e)(2)(B) permits other states to adopt "standards" if "such standards and implementation and enforcement are identical" to California's. This suggests that the "other requirements" that states are preempted from adopting are, as in the motor vehicle preemption regime, limited to ancillary enforcement mechanisms such as certificates and inspections. Though the text does not compel the EPA's interpretation, it does not forbid it either.
The parties also wrangle over the significance of § 213(d). The 1990 amendment, while giving the EPA the power to regulate emissions from new nonroad engines and vehicles,
42 U.S.C. § 7547(d) (1994). Neither party provides an entirely satisfactory explanation of how the EPA's standards can be "subject to" § 209, which deals only with the preemption and permissibility of state standards and other requirements. The EPA maintains that the preemption provisions in § 209(a), (c), and (d) apply to the preemption of state regulation of nonroad engines and vehicles. Yet this approach does not explain how the inconsistent preemption regimes of § 209(a-d) and § 209(e) are to be reconciled; it thus begs the question to be answered here. On the other hand, the EPA's position is at least more comprehensible than EMA's, which is that § 213(d) applies § 209 to the EPA's standards. This merely restates the problem, without suggesting a solution. In fact, unfortunately, the statute is unclear with respect to how § 213(d) is supposed to interact with § 209 in general, or with § 209(e) preemption in particular. To give meaning to the § 213(d)'s reference to § 209, there must be some connection, but it is far from apparent what the connection might be. EMA, while criticizing the EPA's interpretation, fails to offer any coherent alternative. Under these circumstances, Chevron deference permits the EPA's interpretation that § 213(d) incorporates into the nonroad regime at least the reservation of the states' right to impose in-use regulations found in § 209(d). This appears to be a reasonable reading of an ambiguous statute, and one that is within the EPA's power to adopt under Chevron.
EMA contends that even if the standards of § 209(d) are incorporated by § 213(d), § 209(d) permits only in-use regulation unrelated to emissions control. However, as the EPA points out, the longstanding scheme of motor vehicle emissions control has always permitted the states to adopt in-use regulations — such as carpool lanes, restrictions on car use in downtown areas, and programs to control extended idling of vehicles — that are expressly intended to control emissions. See CAA, § 108(f), 42 U.S.C. § 7408(f) (1994) (requiring administrator to make available to state and local authorities information relating to such strategies). Section 209(d) does, therefore, protect the power of states to adopt such in-use regulations.
The preemptive language of § 209(e) is broad, but it does not speak directly to the question at hand. The EPA could reasonably conclude that § 213(d) incorporated § 209(d) into the nonroad regime, in which case the specific command of § 209(d) would limit the general language of § 209(e). We therefore defer to the EPA's interpretation under Chevron. Accordingly, we grant the EMA petitions insofar as they challenge the limitation of the implied § 209(e)(2) preemption to new nonroad sources, and otherwise deny them.
NMA challenges three aspects of the EPA's § 213 rulemaking. First, NMA contends
Based on this study, the EPA published a notice of proposed rulemaking in which it proposed to find that nonroad engines and vehicles contributed "significantly" to ozone and CO nonattainment in more than one nonattainment area.
The American Mining Congress ("AMC"), which has since merged with another entity to form NMA, filed written comments, supported by a study of mining engine emissions that it had commissioned from the TRC Environmental Corporation. AMC challenged the proposed rule in much the same terms as NMA now challenges the final rule on review. AMC argued that the EPA should either exempt surface mining engines altogether or exempt all nonroad engines greater than 750 hp. Among other objections, AMC contended that the EPA had underestimated the cost of compliance for manufacturers of engines greater than 750 hp, which, it explained, would be much higher than the costs for smaller engines. AMC presented the results of a survey of its members, who predicted cost increases of between 3% and 12%, depending on the size and type of engine. At a meeting in July 1993, the EPA requested more detailed information on the
In the final rule, the EPA discussed and rejected AMC's contention that surface mining equipment or engines larger than 750 hp should be exempted.
Although the notice of proposed rulemaking had proposed not to adopt HC, CO, or PM standards because there was no adequate test for such emissions, the final rule included such standards solely for harmonization with standards in California and the European Communities.
The § 213 rulemaking is governed by § 307(d) ("[o]nly an objection to a rule ... which was raised with reasonable specificity during the period for public comment ... may be raised during judicial review.").
We therefore do not reach the merits of NMA's challenge to the HC, CO, and PM standards. As to the other issues raised by NMA, we find that the petitions fail to show that the EPA lacked authority to promulgate the final § 213 rule. Ethyl Corp., 51 F.3d at 1064.
The EPA did not act arbitrarily or capriciously in classifying the engines used in very large mining equipment together with construction equipment (in the nonroad study) or large CI engines generally (as a regulatory category in the final rule). NMA contends that nonroad engines greater than 750 hp are used almost exclusively in mining equipment, and that such engines differ from smaller nonroad engines in design and function. When the EPA challenges NMA to explain how the very large engines differ, however, NMA fails to provide an adequate response. First, NMA asserts that it will cost more to modify the very large engines to comply with emissions control regulations. Under § 213(a)(3), however, the EPA must consider compliance costs when setting the level of emissions control once it has made the "cause or contribute" finding, not in deciding whether to regulate at all: "the Administrator
NMA also contends that while smaller engines are used in both urban and rural settings, very large engines used in mining equipment are used almost exclusively in rural areas. However, the study commissioned by NMA's predecessor AMC shows that mining equipment is used in 20 nonattainment areas. NMA can characterize the mines as being in "rural" parts of these areas, but the fact remains that more than 6% of VOC and NO
42 U.S.C. § 7547(a)(3) (1994) (emphasis added). The EPA discussed the available technology and estimated compliance costs in the notice of proposed rulemaking. The regulatory support document published at the time of the final rule contained a discussion of the expected technological responses of manufacturers to the standards adopted and revised the cost estimates that had appeared in the notice of proposed rulemaking. For CI engines greater than 750 hp, the EPA estimated that retail prices would rise approximately $100 per 100 hp, and that the retail prices of the equipment in which the engines were used would rise by about one percent.
The EPA obviously "considered" costs of compliance; NMA simply maintains that the EPA got its numbers wrong. The EPA gave NMA's predecessor AMC ample opportunity to substantiate that claim during the comment period. AMC presented its members' estimates of much higher costs in adopting the appropriate technologies. The EPA requested more detailed information, but neither AMC nor any of its members provided any.
NMA also maintains that the EPA failed to account adequately for the costs imposed by the standards in the form of increased fuel consumption. However, the EPA assumed that for marketing reasons manufacturers would not only adopt emissions-reducing technology, but would also make adjustments to offset the decreases in fuel economy such technology would cause. It then included in its estimate of technology costs the costs of both the emissions-reducing technology and the fuel-consumption-reducing technology.
The EPA cited two threats to the public health or welfare from smoke. The first was damage to health resulting from inhalation of particles. The second was smoke's tendency to soil property and people and hamper visibility. For its conclusion regarding health, the EPA relied on Douglas W. Dockery et al., An Association Between Air Pollution and Mortality in Six U.S. Cities, 329 NEW ENG. J. MED. 1753 (1993). That article concluded that "fine-particulate air pollution, or a more complex pollution mixture associated with fine particulate matter, contributes to excess mortality in certain U.S. cities." Id. at 1753. NMA challenges this with two articles published after the rulemaking that criticize the Dockery article.
Accordingly, we deny the NMA petitions in their entirety, while we grant the EMA petitions only insofar as they challenge the limitation of the implied § 209(e)(2) preemption to new nonroad sources.
TATEL, Circuit Judge, concurring in part and dissenting in part:
I concur in all of the court's opinion except its discussion of section 209(e)(2)'s implied preemption of state regulatory authority. Because I do not believe that the record clearly establishes that Congress intended to take the unprecedented step of making the State of California the only government in the nation that may establish emission standards for used offroad equipment, I dissent from Part II B 2 of the court's opinion.
I fully agree with the court regarding federal and state authority to establish emission standards for new non-road vehicles and engines — that is, as we hold today, "showroom new" offroad equipment. See Majority op. at 1084-1087 (Part II B 1). As for non-new — that is, used — offroad equipment, I agree with my colleagues that the EPA lacks authority to establish emission standards. See
The EPA interprets section 209(e)(2) as not reaching used offroad equipment at all. 59 Fed.Reg. 36,969 at 36,973-74 (1994). According to the EPA, therefore, states retain their historic authority to set emission standards for used offroad equipment. In contrast, the court finds that section 209(e)(2) applies to used offroad equipment, thereby preempting states from setting emission standards unless California and the EPA approve the standards under the two-stage review process established by section 209(e)(2). Under the first stage, California may adopt the standards only if they are "in the aggregate, at least as protective of public health and welfare as applicable Federal standards." 42 U.S.C. § 7543(e)(2)(A) (1994). To survive second stage review, the EPA must conclude that California's determination was not "arbitrary or capricious," that California needs the proposed standards to meet "compelling and extraordinary conditions," and that the standards are "consistent" with the other requirements of section 209 of the Act. 42 U.S.C. § 7543(e)(2)(A)(i)-(iii). California and other states may then implement those standards under section 209(e)(2)(B), provided they wait at least two years before doing so. See 42 U.S.C. § 7543(e)(2)(B).
Although I agree with the court that we must review the agency's interpretation of section 209(e)(2) under the standards set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), I respectfully disagree with the court's approach to ascertaining Congressional intent under Chevron step one. The court's approach in weighing the "plain meaning" of a section of the statute against other evidence of Congressional intent, in my view, goes beyond well-established standards of statutory construction, placing undue weight on the immediate language of a statute to the exclusion of virtually all other evidence. The court dismisses all evidence contradicting the "plain meaning" of statutory language unless each individual piece of evidence demonstrates to a "certainty" that the result implied by a plain reading of the statute is "[in]conceivable," "[in]comprehensible," or "unintentional." Majority op. at 1089, 1090, 1091.
Neither the Supreme Court nor we have required that courts give such weight to a piece of text alone. Rather, our overriding obligation under Chevron step one is to determine whether Congress has clearly expressed its intent. Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. In so doing, we must consider the evidence "`holistic[ally]'." United States Nat'l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402 (1993) (quoting United Savings Ass'n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988)). While the immediate statutory text is the most persuasive evidence of that intent, United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940), "[o]ver and over" the Supreme Court has "stressed that ... [courts] `must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.'" United States Nat'l Bank of Oregon, 508 U.S. at 455, 113 S.Ct. at 2182 (quoting United States v. Heirs of Boisdoré, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1850)). We may depart from the literal meaning if it would produce either an "odd result," Green v. Bock Laundry Machine Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 1985, 104 L.Ed.2d 557 (1989), or "an unreasonable one `plainly at variance with the policy of the legislation as a whole,'" American Trucking Ass'ns, 310 U.S. at 543, 60 S.Ct. at 1064 (quoting Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199 (1922)). Relying exclusively
Applying these principles, I would defer to the EPA's interpretation of section 209(e)(2) as not preempting state regulation of used offroad equipment. I begin with the text. The opening phrase of section 209(e)(2) — stating that the section applies to "any non-road vehicles or engines other than those referred to in" section 209(e)(1) — does indeed suggest that Congress intended section 209(e)(2) to apply not only to new offroad equipment not covered by section 209(e)(1), but also to used offroad equipment. If this were all the statute said on the subject and if no countervailing evidence existed, I would agree with the court that this language establishes that Congress intended to preempt states from setting emission standards for used offroad equipment. But there is considerable evidence to the contrary, evidence that I believe demonstrates that Congress did not intend to preempt state authority to regulate used offroad equipment.
First, interpreting section 209(e)(2) to apply to used offroad equipment makes little sense in light of section 209(e)(2)(A), which allows California to adopt emission standards only "if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards." 42 U.S.C. § 7543(e)(2)(A). Because the EPA lacks authority to establish emission standards for used offroad equipment, there are no "applicable federal standards."
In explaining why Congress would have required California to compare its standards to non-existent federal standards, the court seems to rely on petitioner's argument that because the California standards will "necessarily be `as protective of public health and welfare'" as the absent federal standards, California can rationally compare the two. Majority op. at 1089. While I suppose California could theoretically compare its standards with nothing, the court's reading nonetheless leaves us with a provision that has no practical effect in regard to used offroad equipment. Because California's standards for used offroad equipment will "necessarily be `as protective of public health and welfare'" as the nonexistent federal standards, id. (emphasis added), California's review of emission standards — and the EPA's subsequent review to determine whether California's conclusions were arbitrary and capricious, see 42 U.S.C. § 7543(e)(2)(A)(i) — would serve no purpose at all in regard to used offroad equipment. Cf. Ratzlaf v. United States, 510 U.S. 135, ___, 114 S.Ct. 655, 659, 126 L.Ed.2d 615 (1994) (noting that courts "should hesitate" to adopt interpretations that would render other provisions of a statute superfluous or unnecessary).
Second, the court's interpretation leaves a regulatory gap that undermines the statute's purpose of reducing air pollution. The court's interpretation of section 209(e)(2) indisputably deprives forty-nine states of authority to set their own emission standards for used offroad equipment. If, for example, Florida wants to establish emission standards for air boats used in the Everglades, it cannot do so itself. Nor can it ask the EPA to set emission standards. Instead, it must ask California for assistance.
According to the court, any regulatory gap is "illusory" because California can still set emission standards and all fifty states may establish "in-use" regulations to control pollution from used offroad equipment. See Majority op. at 1090. Yet California standards hardly substitute for state emission standards. California, for example, is under no legal obligation to adopt emission standards
As for in-use regulations, the court apparently assumes that such regulations — which control the use, operation, or movement of offroad equipment — are as effective as emission standards in reducing pollution from used offroad equipment. Compared to emission standards, however, enforcing regulations restricting the actual use of offroad equipment would likely require more extensive on-site monitoring to determine whether, for example, the public is using its airboats at the proper times and places. In any event, Congress regards emission standards as an important weapon in the arsenals of both the federal and state governments in reducing pollution from mobile sources. See 42 U.S.C. § 7410(a)(2)(A) (1994) (requiring each state plan to "include enforceable emission limitations and other control measures ... to meet" federal air quality standards); 42 U.S.C. § 7521(a)(1) (1994) (authorizing federal emission standards for new motor vehicles); § 7547 (authorizing federal emission standards for new offroad equipment). Thus, by eliminating most states' ability to set emission standards for used offroad equipment, the court creates a significant gap in terms of the tools that states may use to control air pollution, a gap not compensated for by either California's emission standards or the states' in-use regulations.
Third, the court's reading of section 209(e)(2) is inconsistent with the Act's structure. As the court acknowledges, Congress based its program for regulating offroad equipment on the existing program for regulating motor vehicles, see Majority op. at 4-10, 18-19, explicitly linking the two regimes together, see, e.g., 42 U.S.C. § 7547(d) (subjecting enforcement of federal emission standards for offroad equipment to provisions governing motor vehicles, including 42 U.S.C. §§ 7525, 7541-43). With respect to motor vehicles, the Clean Air Act generally preempts states from setting emission standards for new vehicles, see 42 U.S.C. § 7543(a), a preemption that is coextensive with EPA authority to set emission standards for new vehicles. Yet with respect to offroad equipment, the court's interpretation preempts states from establishing emission standards for both new and used offroad equipment, a preemption that significantly exceeds EPA authority to set standards for new equipment.
Under the court's interpretation, California's role under the two preemption schemes also differs dramatically. For new motor vehicles (and new offroad equipment, for that matter), California serves as a "laboratory for innovation," Motor & Equip. Mfrs. Ass'n v. EPA, 627 F.2d 1095, 1111 (D.C.Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980), producing emission standards for new vehicles as an alternative to federal standards. The court gives California a far greater role with respect to used offroad equipment: not an auxiliary laboratory operating alongside the federal regime, but the sole clearinghouse for the nation's emission standards for used offroad equipment.
To be sure, Congress did not intend to duplicate exactly California's role under the motor vehicle scheme. See Majority op. at 1091. While California may establish emission standards for all new motor vehicles subject to federal standards, see 42 U.S.C. § 7543(b), section 209(e)(1) clearly preempts even California from establishing its own emission standards for certain classes of new offroad equipment subject to federal regulation, see § 7543(e)(1). But that single departure from the motor vehicle model merely restricts California's authority to set emission
Fourth, if Congress had intended to adopt such an unprecedented regulatory regime, one would think that a Senator, Representative, staff member, agency official, or lobbyist would have made note of the fact and explained what Congress was doing. But the legislative record is entirely devoid of any evidence that Congress meant to preempt states from acting even where the EPA cannot and to make California the national arbiter of emission standards for used offroad equipment. Indeed, the legislative record points in the opposite direction.
As the court notes, section 209(e)(2) was hastily added in conference. See Majority op. at 1091-1092. The House bill preempted state emission standards for new offroad equipment; the Senate bill contained no preemption at all. Thus, neither chamber addressed state regulation of used offroad equipment. See id. at 1091. As the EPA observes, the conferees were unlikely to have compromised their views on the regulation of new offroad equipment by going beyond even the House bill to preempt state regulation of used offroad equipment. 59 Fed.Reg. at 36,973.
Other evidence reinforces this conclusion. A joint House-Senate staff memorandum presented to the conferees explains that, under section 209(e)(1), "states and local governments would be preempted from regulating new nonroad engines which are smaller than 175 hp used in construction equipment or vehicles or farm equipment or vehicles, as well as new locomotives or new engines used in locomotives." JOINT HOUSE-SENATE STAFF, SUMMARY AGREEMENT ON TITLE II, Mobile Sources at 3 (October 10, 1990). [JA at 5.] The memo then explains the scope of preemption under section 209(e)(2): "With respect to other covered nonroad sources, California would be permitted to set standards, and other States would be permitted to option to the California standard using new provisions analogous to sections 177 and 209 of the current law." Id. (emphasis added). According to the memo, therefore, section 209(e)(2) governs only "other covered" offroad equipment. While "other covered" equipment could conceivably mean something besides "other new" equipment, see Majority op. at 1092, that seems the most natural reading. New offroad vehicles and engines, after all, are the only equipment "covered" by federal emission standards; and the memo's analogy to the regulation of motor vehicles bolsters the idea that the conferees intended to preempt only state regulation of "new" offroad equipment. Of course, I agree that a staff memorandum alone cannot trump clear statutory text, see id., but no one suggests that it carry such weight, only that it is consistent with other evidence casting doubt on the court's interpretation. Finally, while Senators Baucus and Chafee may have overstated the narrowness of section 209(e)'s preemption, see Maj. op. at 1091-1092, their comments suggest that the conferees were concerned only with new offroad equipment and had no intention of broadly preempting states from setting emission standards for used offroad equipment.
Fifth, neither petitioner nor the legislative record offers a plausible explanation why Congress would have intentionally applied section 209(e)(2) to used offroad equipment. The court suggests one of its own: Congress acted out of concern that states would otherwise violate the Allway Taxi doctrine — that is, that states might adopt emission standards for used offroad equipment that would, by imposing restrictions on equipment immediately after it is put into use, effectively undermine the uniformity of federal emission standards for new offroad equipment. See Majority op. at 1089-1090; Allway Taxi, Inc. v. City of New York, 340 F.Supp. 1120, 1124 (S.D.N.Y.) (determining whether section 209(e) preempted municipal regulations applying to motor vehicles used as taxi cabs), aff'd, 468 F.2d 624 (2d Cir.1972). With all respect, I think the court is grasping at straws.
Not only is the record barren of any evidence that Congress was concerned about
Finally, the EPA offers an alternative interpretation of the statute that is simple and logical: Congress intended section 209(e)(2) to apply only to new offroad equipment not covered by section 209(e)(1), but made a clerical mistake in writing section 209(e)(2) to apply to "any" offroad equipment. This view is consistent with the structure of the statue, harmonizing the regulation of offroad equipment with that of motor vehicles. It advances the purpose of the statute, leaving no regulatory gap and allowing states to establish emission standards for used offroad equipment to accomplish their air quality goals. It is supported by the weight of legislative history; indeed, it is perfectly understandable given the haste in which Congress acted.
Because the court's reading of a portion of the statute establishes a bizarre and unprecedented regulatory regime that conflicts with other provisions of the text, undermines the statute's purpose and structure, finds no support in the legislative history, and produces a result that serves no apparent legislative purpose, and because a perfectly plausible alternative explanation exists, I think this is one of those "unusual cases" in which we may reject the apparent plain meaning of one portion of the statute's text. Nat'l Bank of Oregon, 508 U.S. at 462, 113 S.Ct. at 2186 (determining that, because the apparently plain meaning was "overwhelm[ed by] evidence from the structure, language, and subject matter of the" statute, Congress made a "scrivener's error"); see also Environmental Defense Fund v. EPA, 82 F.3d 451, 468-69 (D.C.Cir.1996) (rejecting literal application of section 176(c)(1) of the Clean Air Act because it would frustrate Congress' intent and "look[ing] to the EPA for an interpretation of the statute more true to Congress' purpose"). At the very least, the evidence as a whole casts sufficient doubt on Congress' intent that we must conclude that some ambiguity exists as to whether Congress intended section 209(e)(2) to cover used offroad equipment.
Having thus found the statute ambiguous, I would consider whether the agency's interpretation is permissible under Chevron step two. As noted above, the EPA's interpretation — that section 209(e)(2) does not preempt state regulation of used offroad equipment —
One final note. The court explains its novel and narrow approach to statutory interpretation by suggesting that if courts were released from the bonds of plain language, they might intrude upon the policy choices properly left to the two political branches. Majority op. at 1088-1089. Relying on the language of a statute to the practical exclusion of all other evidence may produce a more limited judicial inquiry, but it will not necessarily result in a more deferential judiciary. In fact, it is the court, relying on the supposed plain language of a statute, that today overrides a decision by one of the two political branches and introduces its views into what would otherwise be an undisturbed dialogue between the executive and legislative branches.
Dissenting from Part II B 2 of the court's opinion, I would deny all petitions for review.
42 U.S.C. § 7543(a) (1994).
42 U.S.C. § 7543(b)(1) (1994). California is the only state that qualifies for the waiver, because it was the only state that had adopted emissions control standards prior to March 30, 1966.
42 U.S.C. § 7550(10) (1994) (amended by Pub.L. No. 101-549, § 223(a), 104 Stat. at 2503).
42 U.S.C. 7550(11) (1994) (amended by Pub.L. No. 101-549, § 223(a), 104 Stat. at 2503).
42 U.S.C. § 7547(a)(1-4) (1994) (amended by Pub.L. No. 101-549, § 222(a), 104 Stat. at 2500-01).
42 U.S.C. § 7543(e)(1) (1994) (amended by Pub.L. No. 101-549, § 222(b), 104 Stat. at 2502). Subsection (b) is the California waiver provision for the motor vehicle preemption of § 209(a).
(A) In the case of any nonroad vehicles or engines other than those referred to in subparagraph (A) or (B) of paragraph (1), the Administrator shall, after notice and opportunity for public hearing, authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such authorization shall be granted if the Administrator finds that —
(B) Any State other than California which has plan provisions approved under part D of subchapter I of this chapter [CAA Title I] may adopt and enforce after notice to the Administrator, for any period, standards relating to control of emissions from nonroad vehicles or engines (other than those referred to in subparagraph (A) or (B) of paragraph (1)) and take such other actions as are referred to in subparagraph (A) of this paragraph respecting such vehicles or engines if —
42 U.S.C. § 7543(e)(2) (1994) (amended by Pub.L. No. 101-549, § 222(b), 104 Stat. at 2502).
Bypassing the question of what weight should be accorded a staff memorandum, it is unclear precisely how EMA thinks this memorandum is relevant. The second sentence pertains to § 209(e)(2), not to the definition of "new" in § 209(e)(1). The first sentence, which pertains to § 209(e)(1), simply parrots the statute.