Natural Resources Defense Coun v. National Highway Traffic Safet

Filing 168

CORRECTED BRIEF, on behalf of Respondent Elaine Chao, Jack Danielson, National Highway Traffic Safety Administration and United States Department of Transportation in 17-2780, Respondent Elaine Chao, Jack Danielson and National Highway Traffic Safety Administration in 17-2806, FILED. Service date 03/28/2018 by CM/ECF. [2267753] [17-2780, 17-2806] [Entered: 03/29/2018 02:45 PM]

17-2780 (L)
17-2806 (Con)
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB,
CENTER FOR BIOLOGICAL DIVERSITY, STATE OF NEW YORK,
STATE OF CALIFORNIA, STATE OF VERMONT,
STATE OF MARYLAND, STATE OF PENNSYLVANIA,
Petitioners,
v.
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,
JACK DANIELSON, in his capacity as Acting Deputy Administrator
of the National Highway Traffic Safety Administration,
UNITED STATES DEPARTMENT OF TRANSPORTATION,
ELAINE CHAO, in her capacity as Secretary
of the United States Department of Transportation,
Respondents,
ASSOCIATION OF GLOBAL AUTOMAKERS,
ALLIANCE OF AUTOMOBILE MANUFACTURERS, INC.,
Intervenors.
ON PETITION FOR REVIEW FROM THE UNITED STATES
DEPARTMENT OF TRANSPORTATION,
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION
BRIEF FOR RESPONDENTS
STEVEN G. BRADBURY
General Counsel
PAUL M. GEIER
Assistant General Counsel
U.S. Department Of Transportation
JONATHAN MORRISON
Chief Counsel
EMILY SU
Assistant Chief Counsel
Nat’l Highway Traffic Safety Admin.

CHAD A. READLER
Acting Assistant Attorney General
MARK B. STERN
[phone]
H. THOMAS BYRON III
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7529
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

TABLE OF CONTENTS
INTRODUCTION ...................................................................................................1
JURISDICTIONAL STATEMENT ........................................................................2
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ...........................3
STATEMENT OF THE CASE ................................................................................4
SUMMARY OF ARGUMENT ...............................................................................8
ARGUMENT ..........................................................................................................10
I.

THIS COURT LACKS JURISDICTION ...................................................10
A. Petitioners Lack Standing .........................................................................10
B. The Petitions Were Untimely...................................................................15
C. The Remaining Issues Do Not Preclude Jurisdiction ...........................22

II.

THE DELAY DECISION WAS LAWFUL ...............................................26
A. NHTSA Reasonably Explained The Delay Decision ........................26
B. Delay Of An Effective Date Is Permissible.........................................31
C. Notice And Comment Were Not Required .......................................39

CONCLUSION ......................................................................................................47
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

-i-

TABLE OF AUTHORITIES
Cases:
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982) .............................................................................................10
Allied-Signal, Inc. v. NRC,
988 F.2d 146 (D.C. Cir. 1993) ............................................................................31
Bowles v. Russell,
551 U.S. 205 (2007) ....................................................................................... 20-21
Clapper v. Amnesty Int’l,
568 U.S. 398 (2013) ....................................................................................... 13-15
Clean Air Council v. Pruitt,
862 F.3d 1 (D.C. Cir. 2017) ......................................................................... 36, 47
Clean Water Action Council v. EPA,
765 F.3d 749 (7th Cir. 2014)...............................................................................21
Dolan v. United States,
560 U.S. 605 (2010) ...............................................................................................3
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) ....................................................................................... 30-31
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011) .............................................................................................20
Herr v. USFS,
803 F.3d 809 (6th Cir. 2015)...............................................................................21

- ii -

Lewis-Mota v. Secretary of Labor,
469 F.2d 478 (2d Cir. 1972) ................................................................................39
Lexmark Int'l, Inc. v. Static Control Components, Inc., __ U.S. __,
134 S. Ct. 1377 (2014) .........................................................................................13
Linda R.S. v. Richard D.,
410 U.S. 614 (1973) .............................................................................................13
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .............................................................................................13
Malvoisin v. INS,
268 F.3d 74 (2d Cir. 2001) ..................................................................................20
Massachusetts v. EPA,
549 U.S. 497 (2007) .............................................................................................10
Mid-Tex Elec. Coop., Inc. v. FERC,
822 F.2d 1123 (D.C. Cir. 1987) ................................................................... 41, 45
NRDC v. Abraham,
355 F.3d 175 (2d Cir. 2004) .............................................................. 18, 35-36, 46
NRDC v. EPA,
808 F.3d 556 (2d Cir. 2015) .......................................................................... 30-31
Phillips v. Boente,
674 Fed. Appx. 106 (2d Cir. 2017) ....................................................................22
Public Citizen v. Mineta,
343 F.3d 1159 (9th Cir. 2003)................................................................. 16-17, 19

- iii -

Radio Relay Corp. v. FCC,
409 F.2d 322 (2d Cir. 1969) ................................................................................25
Ruiz-Martinez v. Mukasey,
516 F.3d 102 (2d Cir. 2008) .......................................................................... 20-21
Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ...............................................................................................13
Sugar Cane Growers Co-op. v. Veneman,
289 F.3d 89 (D.C. Cir. 2002) ..............................................................................49
Sweet v. Sheahan,
235 F.3d 80 (2d Cir. 2000) ..................................................................................40
Time Warner Cable Inc. v. FCC,
729 F.3d 137 (2d Cir. 2013) .......................................................................... 39-40
United States v. United Mine Workers,
330 U.S. 258 (1947) .............................................................................................22
Utah v. EPA,
765 F.3d 1257 (10th Cir. 2014)...........................................................................21
Utility Solid Waste Activities Grp. v. EPA,
236 F.3d 749 (D.C. Cir. 2001) ............................................................................43
Vermont Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765 (2000) ........................................................................................ 3, 22
Vermont Yankee Nuclear Power Corp. v. NRDC,
435 U.S. 519 (1978) .............................................................................................30

- iv -

Zhang v. Slattery,
55 F.3d 732 (2d Cir. 1995) ..................................................................................42

Constitution:
United States Constitution:
Article III ............................................................................................... 2, 13, 24

Statutes:
Administrative Procedure Act:
5 U.S.C. § 553(b)(B) ................................................................................ 40, 43-45
5 U.S.C. § 706(1)..................................................................................................44
5 U.S.C. § 706(2)(A) ............................................................................................30
Dictionary Act:
1 U.S.C. § 1 ..........................................................................................................22
Energy Policy and Conservation Act (EPCA):
Pub. L. No. 94-163, § 3(2), 89 Stat. 871, 874 (1975) ........................................23
42 U.S.C. §§ 6201-6422 .......................................................................................23
42 U.S.C. § 6202(a) .............................................................................................23
42 U.S.C. § 6295(o)(1).........................................................................................18
42 U.S.C. § 6316(a) .............................................................................................18

-v-

Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (2015 Act):
Pub. L. 114-74, title VII, § 701(c), 129 Stat. 599 (2015) ....................................5
28 U.S.C. § 2461, note § 4(c) ..............................................................................38

Federal Register Act:
44 U.S.C. § 1503 ..................................................................................................17

Motor Vehicle Information and Cost Savings Act:
Pub. L. No. 92-513, § 103(a) 86 Stat. 947, 950 (1972) .....................................32

Motor Vehicle Information and Cost Savings Act (as amended by EPCA):
49 U.S.C. § 32909 ................................................................................................29
49 U.S.C. § 32909(a) ................................................................ 3, 4, 16, 22, 23, 24
49 U.S.C. § 32909(b) ...................................................................................... 3, 15
49 U.S.C. § 32912 ................................................................................................27

28 U.S.C. § 1331......................................................................................................21
28 U.S.C. § 2112(a)(1) ............................................................................................25
28 U.S.C. § 2344......................................................................................................20
28 U.S.C. § 2401(a) ........................................................................................... 21-22

- vi -

Regulations:
49 C.F.R. § 578.6(h)(2) ...................................................................................... 5, 11

54 Fed. Reg. 40005 (Sept. 29, 1989) ......................................................................33
60 Fed. Reg. 26002 (May 16, 1995) ......................................................................33
60 Fed. Reg. 35458 (July 7, 1995) .........................................................................33
60 Fed. Reg. 63648 (Dec. 12, 1995) .......................................................................16
71 Fed. Reg. 52983 (Sept. 8, 2006) ........................................................................33
71 Fed. Reg. 74823 (Dec. 13, 2006) .......................................................................33
75 Fed. Reg. 50730 (Aug. 28, 2008) ......................................................................33
77 Fed. Reg. 62624 (Oct. 15, 2012) ................................................................. 10-12
80 Fed. Reg. 58633 (Sept. 30, 2015) ................................................................ 32-33
81 Fed. Reg. 43524 (July 5, 2016) ...........................................................................5
81 Fed. Reg. 95489 (Dec. 28, 2016) .......................................................................17
82 Fed. Reg. 28760 (June 26, 2017) ......................................................................38
82 Fed. Reg. 32139 (July 12, 2017) .........................................................................4

- vii -

Miscellaneous:
Office of the Federal Register, Document Drafting Handbook
(2017 ed.), https://www.archives.gov/files/federalregister/write/handbook/ddh.pdf .......................................................... 34-36
William M. Jack, Taking Care that Presidential Oversight of the Regulatory
Process Is Faithfully Executed: A Review of Rule Withdrawals and Rule
Suspensions Under the Bush Administration's Card Memorandum, 54 Admin. L.
Rev. 1479 (2002) .....................................................................................................34
Anne Joseph O’Connell, Agency Rulemaking and Political Transitions, 105
Nw. U.L. Rev. 471 (2011) ......................................................................................34
16AA Charles Alan Wright, et al., Federal Practice and Procedure
(4th ed. 2017 update) .................................................................................. 20-21

- viii -

INTRODUCTION
Petitioners’ concerns, and their arguments in this case, are premature.
The National Highway Traffic Safety Administration (NHTSA), an agency
within the U.S. Department of Transportation, is currently undertaking
notice-and-comment rulemaking to reconsider an earlier rule setting civil
penalties under the Corporate Average Fuel Economy (CAFE) regulatory
regime. When NHTSA announced that reconsideration in July 2017, the
agency simultaneously announced that it was delaying the effective date of
the earlier rule while the reconsideration was ongoing. The delay decision
was merely an interim step in NHTSA’s continuing review of issues
concerning the civil penalty rate applicable to future violations of CAFE
standards for certain motor vehicles.
The delay decision was a procedurally appropriate but practically and
legally insubstantial measure that does not provide an appropriate vehicle
for petitioners’ substantive concerns about the underlying civil penalty rate.
Those concerns can be presented to the agency, and to a court in an
appropriate case after the reconsideration is complete. The narrow question

in this case—whether the delay of the effective date, pending
reconsideration, violated the law—is far more limited than the issues
petitioners seek to litigate. And nothing in this Court’s precedents or in any
statute precludes NHTSA from acting to preserve the status quo while it
exercises its policy responsibilities.
Before this Court can address even that narrow question, however,
thorny jurisdictional barriers raise serious questions about the justiciability
of these petitions. This Court need not resolve the difficult issues of venue,
and the scope of the statutory right of action here because petitioners lack
standing and failed to file their petitions for review until after the statutory
deadline. Dismissing the petitions on standing or timeliness grounds would
not prejudice petitioners because they can raise their substantive and
procedural concerns at the appropriate stage, in a challenge to NHTSA’s
final action following reconsideration.
JURISDICTIONAL STATEMENT
This Court lacks jurisdiction because petitioners lack standing to sue
under Article III of the Constitution. See infra, 10-15. The Court also lacks
2

jurisdiction because the petitions for review were not filed within the 59-day
time limit set forth in 49 U.S.C. § 32909(b). See infra, 15-21. The agency
action at issue (the delay decision) was published on July 12, 2017, but was
filed with the Office of the Federal Register on July 7, 2017, and made
available for public inspection that same date.

JA 78; https://www.

federalregister.gov/public-inspection/2017/07/07. The time to file a petition
for review expired 59 days later, on Monday, September 4. The petitions for
review were filed on September 7 and 8, 2017. JA 84-93.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1.

Whether this Court has jurisdiction to decide the petitions for

review.1

1

This Court directed the parties to address the following issues: (1)
under principles of statutory construction, whether the rule was
“prescribed” when it was filed with the Office of the Federal Register, when
it was published in the Federal Register, or on some other date for purposes
of 49 U.S.C. § 32909(b); (2) whether the 59-day deadline in § 32909(b) is a
jurisdictional rule, a claim-processing rule, or a time-related directive, see
Dolan v. United States, 560 U.S. 605, 610-611 (2010); (3) whether the term
“person” in § 32909(a) includes states, see Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765, 780-781 (2000); and (4)
whether Petitioners Sierra Club, Center for Biological Diversity, California,
3

2.

Whether the delay decision was properly issued without notice

and comment and was consistent with any other applicable legal
requirements.
STATEMENT OF THE CASE
Petitioners challenge a limited decision by NHTSA: the delay of the
effective date of an earlier rule, pending reconsideration of that earlier rule.
82 Fed. Reg. 32139 (July 12, 2017) (JA 77-78) (delay decision). This case solely
concerns NHTSA’s decision to pause its earlier action while the agency
undertook to reconsider that action. Neither the earlier rule nor the agency’s
ongoing reconsideration of it is before the Court now.
The delay decision was an intermediate step in an ongoing process that
began in July 2016 with an interim final rule, issued without notice-andcomment procedures, that set increased amounts for a variety of civil
penalties administered by NHTSA, including those applicable to the CAFE

Maryland, and Pennsylvania “reside[]” or have their “principal place of
business” in this Circuit, see 49 U.S.C. § 32909(a). See Order (Feb. 16, 2018).
Those issues are addressed in the jurisdictional argument. See infra, 10-25.
4

program. See 81 Fed. Reg. 43524 (July 5, 2016) (JA 25-30). The interim final
rule invoked the statutory authority conferred by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, title VII,
§ 701(c), 129 Stat. 599 (2015) (2015 Act). That statute directed federal agencies
to increase certain civil monetary penalties to account for inflation, and
specifically authorized agencies to use interim rulemaking procedures. JA
25-26. Among the many penalties that NHTSA increased in that interim final
rule were the CAFE civil penalty rate, which the agency raised from $5.50 to
$14 per tenth of a mile per gallon (mpg) over the CAFE standard. JA 27; 49
C.F.R. § 578.6(h)(2).2
A vehicle manufacturer and manufacturer trade associations filed
timely petitions for partial reconsideration of the interim final rule before the
effective date, taking issue only with the increases to the CAFE civil penalty
rate. JA 31-47; JA 48-50 (supplement). NHTSA acted on those petitions in

2

As NHTSA has recently explained, there are substantial questions
about whether the 2015 Act applied to the CAFE civil penalty rate at all. See
NPRM 19-33 (https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/
nprm_cafe-fines-03262018_0.pdf).
5

December 2016, granting them in part and determining that the increased
CAFE civil penalty rate would not be applied until Model Year (MY) 2019.
JA 51-54.3 That reconsideration decision had an effective date of January 27,
2017. JA 51.
Beginning in January 2017, NHTSA issued periodic delays of the
effective date of the December 2016 reconsideration decision. JA 56, 59, 75.
The last of those actions extended the effective date until July 10, 2017. JA
75-76. Finally, on July 7, 2017, NHTSA issued the delay decision that
petitioners have challenged here. JA 77-78. That decision, unlike the earlier
delays, was not for a fixed period. Instead, it delayed the effective date of
the December 2016 reconsideration decision “indefinitely pending
reconsideration.” JA 77.

3

NHTSA also acted at the same time on a petition for rulemaking filed
in 2015 by the Center for Biological Diversity, which sought an increase in
the CAFE civil penalty rate. That petition was filed shortly before the
passage of the 2015 Act, and the agency determined that its July 2016 interim
final rule, as amended on reconsideration, addressed the petition. JA 52-53.
6

The delay decision explained the earlier agency decisions and the
petitions for reconsideration. NHTSA noted that it had addressed concerns
about retroactive application of the increased penalty rate but “did not
address the other points raised” in the manufacturers’ petitions. JA 77; see
also JA 78 n.4 (incorporating by reference JA 80-81). NHTSA explained that
it “is now reconsidering the final rule because the final rule did not give
adequate consideration to all of the relevant issues, including the potential
economic consequences of increasing CAFE penalties by potentially $1
billion per year, as estimated in the Industry Petition.” JA 77. The agency
explained that, “[b]ecause NHTSA is reconsidering the final rule, NHTSA is
delaying the effective date pending reconsideration.” JA 78.
The agency reconsideration is ongoing. Initially, NHTSA solicited
comment on whether $14 per tenth of a mpg is the appropriate civil penalty
rate under the CAFE regime. JA 78-83. After the close of that comment
period, NHTSA prepared a Notice of Proposed Rulemaking (NPRM). The
agency submitted the NPRM on March 27, 2018, to the Office of the Federal

7

Register for publication; it is also available online: https://www.nhtsa.gov/
sites/nhtsa.dot.gov/files/documents/nprm_cafe-fines-03262018_0.pdf.
SUMMARY OF ARGUMENT
Petitioners lack standing because their asserted injury is too
speculative and indirect. Their claims depend on a highly attenuated chain
of possibilities that includes the independent actions of third parties.
Because those injuries are neither imminent nor traceable to the agency’s
narrow procedural decision, this Court lacks jurisdiction to review
petitioners’ claims.
The petitions for review were also untimely. NHTSA’s delay decision
expressly had immediate legal effect on July 7, 2017, the same date that it
was filed with the Office of the Federal Register and made available for
public inspection, pursuant to the Federal Register Act. That is the date on
which the delay decision was “prescribed,” and the time to file a petition for
review—which provides a firm limit on this Court’s jurisdiction—expired 59
days later.

8

On the merits, NHTSA acted entirely reasonably in delaying the
effective date of its earlier decision concerning the CAFE civil penalty rate,
while the agency undertakes notice-and-comment rulemaking to reconsider
serious legal and factual issues that it did not previously address. A delay
of an earlier rule’s effective date in these circumstances is unexceptional;
indeed, agencies routinely issue similar delay decisions in a wide variety of
contexts. Petitioners misconstrue the decisions of this Court and others,
suggesting that there is a categorical prohibition against delaying the
effective date of a rule that has not gone into effect, or that notice and
comment is always required prior to such a rule. The cases they cite do not
stand for such sweeping generalizations, and this Court should decline the
invitation to adopt such a broad holding here.
Dismissing or denying these petitions for review will have little
practical or legal consequence. The agency has issued an NPRM, initiating
notice and comment rulemaking in its reconsideration of the issues related
to the CAFE civil penalty rate, and petitioners, like the rest of the public, will
have ample opportunity to raise their substantive concerns in that
9

proceeding. And any adversely affected person can bring a timely challenge
to the agency’s final rule after its reconsideration is complete. Petitioners’
arguments are thus largely premature, and this case is much ado about very
little.
ARGUMENT
I.

THIS COURT LACKS JURISDICTION.
A.

Petitioners Lack Standing.

This case is not a challenge to the CAFE standards themselves, which
remain unchanged.4 And manufacturers’ obligations to comply with those
standards has not been altered or excused.

Indeed, the options for

noncompliance now remain exactly what they were when the CAFE
standards were adopted in 2012. See 77 Fed. Reg. 62624, 63126 (Oct. 15, 2012)

4

Thus, this case is not about direct, proprietary harm resulting from
vehicle emissions of greenhouse gases. See Massachusetts v. EPA, 549 U.S.
497 (2007). In any event, “[a] State does not have standing as parens patriae
to bring an action against the Federal Government.” Alfred L. Snapp & Son,
Inc. v. Puerto Rico, 458 U.S. 592, 610 n.16 (1982). The Supreme Court in
Massachusetts did not overrule that holding. See 549 U.S. at 522-523 (noting
proprietary injury resulting from loss of coastal land).
10

(explaining how NHTSA calculates compliance, and options for
manufacturers who do not comply with standards). At the time those
standards were adopted, the civil penalty rate was $5.50 per tenth of a mpg.
See 49 C.F.R. § 578.6(h)(2) (2012).5
The only issue before the Court is NHTSA’s delay of the effective date
of a regulatory change to the amount of the CAFE civil penalty rate. But the
underlying penalty rate does not always or automatically apply to CAFE
shortfalls. In the event that NHTSA determines that a vehicle fleet did not
comply with CAFE standards, the manufacturer has multiple alternative
options short of paying a civil penalty. See 77 Fed. Reg. at 63126; JA 51.6 A
manufacturer has the option either to pay a civil penalty or to allocate credits

5

NHTSA determined in a separate decision that the civil penalty rate
would be $5.50 per tenth of a mpg during the agency’s reconsideration. See
JA 81. But that decision is not before the Court in this case, and the delay
decision at issue here did not itself address the applicable rate during the
agency’s reconsideration.
6

Moreover, NHTSA cannot determine compliance until after the
model year has ended and EPA has issued final reports, which generally
takes place between April and October for the previous model year. See 77
Fed. Reg. at 63126. Thus, for MY19, NHTSA will not be able to determine
compliance until sometime after April (or perhaps after October) 2020.
11

to offset the shortfall. 77 Fed. Reg. at 63126 (after confirming the shortfall,
the manufacturer “must either submit a plan indicating it will allocate
existing credits, or if it does not have sufficient credits available in that fleet,
how it will earn, transfer and/or acquire credits, or pay the appropriate civil
penalty”). NHTSA observed that “few manufacturers have actually paid
civil penalties, and the amounts of CAFE penalties paid generally have been
relatively low.” JA 51. Instead, “many manufacturers have taken advantage
of those [credit trading and transfer] flexibilities rather than paying civil
penalties for non-compliance.” Ibid.
The uncertain and conditional nature of CAFE civil penalties, and the
fact that manufacturers retain discretion to decide whether to pay a penalty,
demonstrates that petitioners cannot satisfy the constitutional standing
requirement based on their claim of indirect injuries resulting from the
emissions of carbon dioxide and other pollutants from motor vehicles, as
well as from upstream activities related to the production of motor vehicle
fuels. See States Br. 21-32; NRDC Br. 23-29. “The plaintiff must have
suffered or be imminently threatened with a concrete and particularized
12

‘injury in fact’ that is fairly traceable to the challenged action of the
defendant and likely to be redressed by a favorable judicial decision.”
Lexmark Int'l, Inc. v. Static Control Components, Inc., __ U.S. __, 134 S. Ct. 1377,
1386 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
An injury for standing purposes must be direct, not speculative or based on
the independent actions of third parties. See Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013). That is not a new requirement. The Supreme Court held
more than four decades ago that “Art. III still requires that a federal court
act only to redress injury that fairly can be traced to the challenged action of
the defendant, and not injury that results from the independent action of
some third party not before the court.” Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 41-42 (1976); see also, e.g., Defenders of Wildlife, 504 U.S. at
560 (“the injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party
not before the court”) (quotation marks and alterations omitted). Linda R.S.
v. Richard D., 410 U.S. 614, 617-618 (1973) (holding that plaintiff “failed to
allege a sufficient nexus between her injury and the government action
13

which she attacks to justify judicial intervention,” where injury of father’s
failure to pay child support did not directly result from non-enforcement of
criminal statute).
Because manufacturers retain the option to satisfy any noncompliance
with credits rather than by payment of a civil penalty, petitioners’ assertion
that they will suffer harms resulting from increased noncompliance with
CAFE standards is impermissibly speculative and dependent on the actions
of third parties. As in Amnesty, petitioners here cannot show that the
challenged government action—the delay decision—will directly result in
any of the alleged harms they rely on. Instead, they complain of injuries that
are directly traceable only to the decisions of third parties (vehicle
manufacturers), and that depend on a “highly attenuated chain of
possibilities” to find any link even to the underlying amount of the CAFE
civil penalty rate. Amnesty, 568 U.S. at 410.
Because the agency action at issue in this case is not the underlying
penalty rate but only the delay of the effective date for the earlier rule
changing that rate, and because the agency is moving forward with the
14

notice

and

comment

rulemaking

proceedings

on

reconsideration,

petitioners’ allegations of injury are even more attenuated and speculative.
Petitioners do not know how NHTSA will implement any decisions it
ultimately makes after the ongoing reconsideration process is complete, nor
can they predict how independent actors—vehicle manufacturers—will
choose to exercise their own judgment both before and after the
government’s forthcoming final rule. And just as plaintiffs in Amnesty could
not know whether any resulting surveillance would even be a result of the
statute they sought to challenge, 568 U.S. at 410-411, petitioners here cannot
be certain that any business decisions of manufacturers that might increase
emissions of carbon dioxide are fairly traceable to the extension of the
effective date or even to the underlying CAFE civil penalty rate that remains
subject to change.
B.

The Petitions Were Untimely.

1.

The statute governing judicial review of NHTSA’s delay decision

provides jurisdiction in the court of appeals but requires that a petition for
review “must be filed not later than 59 days after the regulation is
15

prescribed.” 49 U.S.C. § 32909(b). NHTSA has long distinguished between
the date a regulation is “prescribed” and the date of publication in the
Federal Register, for purposes of determining the timeliness of a petition for
review under that jurisdictional statutory provision: “[T]he language of
each of these statutes [including 42 U.S.C. § 32909(a)] indicates that the time
period for judicial review does not begin to run on the publication date; rather it
runs from the date that the regulation, standard, or decision on
reconsideration is ‘issued’ or ‘prescribed’ by the agency.” 60 Fed. Reg. 63648,
63650 (Dec. 12, 1995) (emphasis added).
The Ninth Circuit has held that a similar statutory term (“issued”) is
distinct from the date of publication in the Federal Register, and that the time
to file a petition for review begins to run “on the date that the regulation is
made available for public inspection.” Public Citizen v. Mineta, 343 F.3d 1159,
1167 (9th Cir. 2003).7 That court concluded that beginning the 59-day filing

7

NHTSA has indicated that it interprets the terms “issued” and
“prescribed” under the two statutes at issue in Public Citizen and this case as
“synonymous.” 60 Fed. Reg. at 63650.
16

period when the rule was available for public inspection served the
important function of public notice while respecting the statutory language.
Id. at 1166-1167.
The delay decision was “prescribed” on July 7, 2017, as multiple
indications make clear. First, it was filed with the Office of the Federal
Register on that date. JA 78; cf. Public Citizen, 343 F.3d at 1167-1168. And it
was made available for public inspection on the same day.

See

https://www.federalregister.gov/public-inspection/2017/07/07; see also 44
U.S.C. § 1503 (“Upon filing, at least one copy shall be immediately available
for public inspection in the Office [of the Federal Register].”). Moreover, the
delay decision had immediate legal effect on that same date, as NHTSA
explained in the text of the notice it issued. JA 77 (“As of July 7, 2017, the
effective date of the final rule published in the Federal Register on December
28, 2016, at 81 FR 95489, is delayed indefinitely pending reconsideration.”).
In these circumstances, the Court should follow the Ninth Circuit’s lead in
determining the timeliness of a challenge to NHTSA’s delay decision by

17

measuring from the date the decision was filed with the Office of the Federal
Register and made available for public inspection.
Petitioners’ contrary argument principally rests on a misreading of this
Court’s decision in NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004). But the
Court there did not decide any question of timeliness, let alone the distinct
question presented here—the timeliness of a petition for review of a NHTSA
delay decision under the CAFE statute.

The Court in that case was

addressing the different question of the significance of publication for
purposes of a statutory constraint (the anti-backsliding provision) on the
Department of Energy (DOE), which has no relevance to the NHTSA CAFE
statute.8 In the course of that discussion, the Court simply assumed that

8

The statutory regime governing DOE’s establishment of energyconservation standards includes a provision known as the “anti-backsliding
provision,” which prohibits DOE from “prescrib[ing] any amended
standard which increases the maximum allowable energy use * * * or
decreases the minimum required energy efficiency[] of a covered product.”
42 U.S.C. § 6295(o)(1) (consumer products); see id. § 6316(a) (industrial
equipment). That provision, which has no application here and no corollary
in the CAFE statute, was the focus of this Court’s decision in Abraham. See
355 F.3d at 198-206.
18

“prescribed” in a different statutory provision, governing judicial review of
DOE rules establishing energy-conservation standards, would be equated
with Federal Register publication. Id. at 196 n.8.
Petitioners emphasize the importance of public notice and the
assumption of courts in other cases concerning challenges to rules that had
no legal effect before publication. States Br. 48-50; NRDC Br. 21-22. But
Public Citizen explained that the need for notice is amply addressed by
beginning the 59-day clock when NHTSA’s rule is filed with the Office of the
Federal Register and made available for public inspection. See 343 F.3d at
1166-1167.

And even if petitioners are correct that Federal Register

publication is a significant event in many instances (and may indicate when
some rules are “prescribed”), the delay decision had immediate legal effect,
and was made available for public inspection promptly for that very reason.
Nor is the amendment history of the CAFE judicial review statute
dispositive. See States Br. 51-52. Notably, Congress eliminated the term
“published” from the earlier version of the statutory text, aligning the two
provisions by using the term “prescribed,” not “published.” The general
19

assertion that the amendment was non-substantive will not bear the
interpretive weight petitioners ascribe to it.
2.

The Supreme Court has recognized that “lower court decisions

have uniformly held that the Hobbs Act’s 60–day time limit for filing a
petition for review of certain final agency decisions, 28 U.S.C. § 2344, is
jurisdictional.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 437
(2011) (noting without disagreement observation in government brief). This
Court has recognized the jurisdictional nature of statutory time periods for
filing a petition for review of agency action. See, e.g., Malvoisin v. INS, 268
F.3d 74, 75 (2d Cir. 2001) (“compliance with the time limit for filing a petition
for review of the BIA's final order is a strict jurisdictional prerequisite”),
reaffirmed, Ruiz-Martinez v. Mukasey, 516 F.3d 102, 117-118 (2d Cir. 2008)
(citing Bowles v. Russell, 551 U.S. 205, 210-211 (2007)).

“Courts have

frequently stated that the applicable statutory deadlines for seeking court of
appeals review of particular types of agency orders are jurisdictional.”
16AA Charles Alan Wright, et al., Federal Practice and Procedure § 3961.3 (4th

20

ed. 2017 update) (observing that, after Bowles, “it seems likely that such cases
are still good law”).9
Petitioners assert without analysis or authority that the limit on this
Court’s review of agency action in § 32909 should be treated like a statute of
limitations and deemed a non-jurisdictional claim-processing rule. States Br.
53-54; NRDC Br. 22. But unlike a statute of limitations, § 32909 provides the
sole statutory basis for this Court’s jurisdiction. Thus, while a district court
has subject-matter jurisdiction (independent of a statute of limitations) to
decide cases asserting a federal question, see 28 U.S.C. § 1331, that statutory
grant does not extend to courts of appeals.10

9

The Seventh Circuit has interpreted the Clean Air Act’s time limit as
non-jurisdictional, expressly diverging from otherwise unanimous case law.
Clean Water Action Council v. EPA, 765 F.3d 749, 751-752 (7th Cir. 2014);
contra, e.g., Utah v. EPA, 765 F.3d 1257, 1258-1262 (10th Cir. 2014). But the
Seventh Circuit’s decision is contrary to this Court’s analysis in RuizMartinez. In any event, as even the Seventh Circuit acknowledges, the time
limit is mandatory, even if it is not jurisdictional, and the government has
objected to petitioners’ untimely filing. See Clean Water Action Council, 765
F.3d at 752.
10

Unlike the Sixth Circuit in Herr v. USFS, 803 F.3d 809 (6th Cir. 2015),
cited in States Br. 54, this Court has not addressed whether the time limit in
21

C.

The Remaining Issues Do Not Preclude Jurisdiction.

The remaining questions about the statutory grant of jurisdiction do
not independently warrant dismissal of the petitions here. Nevertheless, this
Court need not resolve those issues if it concludes that petitioners lack
standing or that the petitions are untimely.
1.

The Supreme Court has consistently applied the “longstanding

interpretive presumption that [a statutory reference to] ‘person’ does not
include the sovereign.” Vermont Agency of Nat. Res. v. United States ex rel.
Stevens, 529 U.S. 765, 780-781 (2000).

Thus, states are ordinarily not

considered persons, absent evidence that Congress intended to overcome
that presumption.11

Here, the context is ambiguous but suggests that

Congress may have intended to include states as persons in 49 U.S.C.
§ 32909(a).

28 U.S.C. § 2401(a) is jurisdictional. See Phillips v. Boente, 674 Fed. Appx. 106,
107-108 (2d Cir. 2017).
11

The Dictionary Act definition of “person,” which governs “unless
the context indicates otherwise,” 1 U.S.C. § 1, does not include states. See
United States v. United Mine Workers, 330 U.S. 258, 275 (1947).
22

The states point to the definition of “person” in 42 U.S.C. § 6202, which
expressly includes states, but is limited to Chapter 77 of Title 42, 42 U.S.C.
§§ 6201-6422, and thus by its terms does not apply to 49 U.S.C. § 32909(a).
States Br. 44-45. They argue that the language in the public law referring to
“this Act” included all of the provisions enacted in the Energy Policy and
Conservation Act (EPCA), not just those codified in Chapter 77 of Title 42.
Pub. L. No. 94-163, § 3(2), 89 Stat. 871, 874 (1975). But the intent of Congress
in that provision remains unclear, as the CAFE provisions enacted in 1975
amended a pre-existing statute, the Motor Vehicle Information and Cost
Savings Act, which included its own judicial review provision. See Pub. L.
No. 92-513, § 103(a), 86 Stat. 947, 950 (1972). That statute also had a separate
definitions provision, which did not refer to states as persons. See id. § 2, 86
Stat. 947-948. Thus, Congress may not have intended “this Act” in EPCA to
include the CAFE provisions, which came in the form of amendments to
another Act.
But the states’ argument appears to be at least a possible, and perhaps
the more natural, reading of EPCA’s general statement of definitions. Thus,
23

the government does not dispute that there is some evidence suggesting that
“person” in 49 U.S.C. § 32909(a) includes states.
2.

This Court’s jurisdiction is limited to cases brought by a person

who “resides or has its principal place of business” within the geographic
reach of the Second Circuit. 49 U.S.C. § 32909(a). New York and Vermont,
as well as NRDC, appear to satisfy that requirement. The only question is
whether jurisdiction is proper over the claims of the remaining petitioners,
who reside outside this Circuit.
A petition for review properly invokes this Court’s jurisdiction if it is
filed by a petitioner who comes within the terms of the statute—that is, who
is a “person,” and who is “adversely affected” by a NHTSA regulation
promulgated under one of the identified statutory sections, 49 U.S.C.
§ 32909(a)—and if the petition otherwise satisfies Article III of the
Constitution, including the related doctrines of standing, ripeness, and
mootness.

Thus, the reviewing Court should ensure that at least one

petitioner satisfies all of the applicable statutory and constitutional
requirements to initiate an action. But if this Court’s jurisdiction has been
24

properly invoked, the petitioners may also include other persons who could
have brought claims in another circuit but who chose to be co-petitioners in
this Court. That understanding is not precluded by the text of the statute or
by binding precedent of the Supreme Court or this Court, and is supported
by the federal rules.
A contrary interpretation would impose substantial burdens on both
litigants and the courts. If each petitioner were required to file a separate
petition for review in a different circuit, transfer would be appropriate either
to the court where the first petition was filed or to a randomly selected
circuit. See 28 U.S.C. § 2112(a)(1). Alternatively, non-local entities could
seek to intervene once a properly filed petition had been brought before this
Court. See FRAP 15(d).12 In either case, additional procedural steps would
be required, and would serve little purpose.

12

This Court’s precedents support the practice of intervention by an
out-of-circuit entity aligned with a petitioner, in a case under the similar
provisions of the Hobbs Act. See Radio Relay Corp. v. FCC, 409 F.2d 322, 324
(2d Cir. 1969).
25

II.

THE DELAY DECISION WAS LAWFUL.
A.

NHTSA Reasonably Explained The Delay Decision.

NHTSA explained that it was delaying the effective date of the
December 2016 decision “pending reconsideration” of its earlier rule
concerning the CAFE civil penalty rate. JA 77. The agency explained that,
although the December 2016 reconsideration decision addressed one
concern, it “did not address the other points raised in the Industry Petition.”
Ibid. Further reconsideration was necessary because the earlier decision “did
not give adequate consideration to all of the relevant issues, including the
potential economic consequences of increasing CAFE penalties by
potentially $1 billion per year, as estimated in the Industry Petition.” Ibid.
The agency and the public needed additional time “to thoughtfully consider
and address” the issues. JA 78. The agency explained that its delay decision
was “consistent with NHTSA’s statutory authority to administer the CAFE
standards program and its inherent authority to do so efficiently and in the
public interest.” Ibid.

26

That rationale was sensible, and the agency’s explanation amply
satisfied the requirements of the Administrative Procedure Act (APA). The
previously unaddressed concern about economic consequences implicates
multiple legal and factual considerations that require notice and comment
rulemaking, which is now underway.

As NHTSA explained in the

accompanying request for comment on reconsideration, the exception in the
2015 Act called for notice-and-comment rulemaking where a presumptive
increase in civil monetary penalties would have a negative economic impact.
See JA 80 (noting that “the July 5, 2016 interim final rule did not provide an
opportunity for interested parties to provide input fully” concerning how
“to implement the Inflation Adjustment Act as it pertains to CAFE
penalties”); JA 78 n.4 (incorporating by reference discussions in
reconsideration document seeking comment).

NHTSA also solicited

comment on “whether and how the EPCA requirements in 49 U.S.C. § 32912
for what NHTSA must consider in raising CAFE penalty rates under that
section interact with NHTSA's obligations under the Inflation Adjustment
Act.” JA 80.
27

The recently released NPRM confirms the serious and complex issues
that the agency, and the public, need to address before NHTSA can
determine the appropriate CAFE civil penalty rate. In addition to fleshing
out the legal and factual economic issues related to the economic impact of
an increase, the NPRM identifies a significant legal question that the agency
did not address in either the July 2016 interim final rule or the December
2016 reconsideration decision: Whether CAFE civil penalties are within the
scope of the 2015 Act’s reference to “civil monetary penalties” at all. See
NPRM 19-33. Like the other substantive questions at issue in the ongoing
notice-and-comment rulemaking, that question of statutory interpretation is
not before the Court in this case, but it serves as an example of the reasons
why NHTSA reasonably concluded that it would be appropriate to maintain
the status quo until the agency completes its reconsideration process.
In light of the serious concerns, and the need for public input and
further analysis, arising from those unsettled legal and factual questions,
NHTSA explained that it was delaying the effective date of that decision
until the reconsideration was complete.
28

JA 78 (“Because NHTSA is

reconsidering the final rule, NHTSA is delaying the effective date pending
reconsideration.”). NHTSA’s delay of the effective date was appropriate in
light of the uncertainty about those significant issues, and the time needed
for the agency to undertake notice-and-comment rulemaking; to address the
substantive legal, factual, and policy questions arising from the pending
reconsideration; and to determine the appropriate penalty rate following the
conclusion of the reconsideration process.
Moreover, the agency’s decision to delay the effective date eliminated
legal uncertainty that otherwise could have caused significant disruption for
vehicle manufacturers and for the agency itself. In light of the substantial
unaddressed questions underlying the earlier increase in the CAFE civil
penalty rate, which was undertaken without notice and comment, NHTSA
and the regulated industry would have faced unknown issues about the
applicability of that rate to future shortfalls. Against that background, the
decision to pause CAFE penalty portion of the July 2016 interim final rule,
as amended by the December 2016 reconsideration decision, was entirely
reasonable and within the agency’s authority to establish its own
29

procedures. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,
543 (1978) (“administrative agencies should be free to fashion their own rules
of procedure and to pursue methods of inquiry capable of permitting them
to discharge their multitudinous duties”) (quotation marks omitted).
The APA requires “that an agency ‘examine the relevant data and
articulate a satisfactory explanation for its action.’” FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 513 (2009). The APA’s familiar arbitrary and
capricious standard of judicial review, 5 U.S.C. § 706(2)(A), is “narrow,” and
the Supreme Court has “made clear * * * that a court is not to substitute its
judgment for that of the agency.” Fox Television, 556 U.S. at 513 (quotation
marks omitted). Thus, this Court has explained that it “must be satisfied
from the record that the agency examined the relevant data and articulated
a satisfactory explanation for its action.” NRDC v. EPA, 808 F.3d 556, 569
(2d Cir. 2015) (quotation marks and alterations omitted). The ultimate
question under this narrow standard of review is whether the agency's
action was reasonable and its explanation was rational.

30

See, e.g., Fox

Television, 556 U.S. at 514-515. NHTSA’s delay decision fully complied with
that requirement, as explained above.
The limited, procedural nature of the delay rule, and its clear link to
the agency’s ongoing reconsideration, demonstrate that no more detailed
explanation was necessary to satisfy the APA’s deferential standard of
review. If this Court were to conclude that some more detailed explanation
were necessary, it should remand without vacatur to allow NHTSA the
opportunity to explain its rationale with more specificity. See, e.g., AlliedSignal, Inc. v. NRC, 988 F.2d 146, 150 (D.C. Cir. 1993), cited in NRDC v. EPA,
808 F.3d at 584. As explained above, vacatur would create uncertainty for
both NHTSA and regulated entities, in light of the agency’s ongoing
reconsideration of the substantive issues.
B.

Delay Of An Effective Date Is Permissible.

1.

Notwithstanding NHTSA’s rationale, petitioners suggest there is

some prohibition against an agency delaying the effective date of an earlier
rule. There is no support for that argument. Despite the urgency and
outrage that characterize petitioners’ briefs in this case, there is nothing
31

momentous or unusual about an agency delaying the effective date of an
earlier rule due to intervening events.
Indeed, agencies undertake similar action as a matter of course, when
justified by intervening events such as the substantial issues identified here.
There are a variety of reasons why the delay of an effective date may be
necessary or appropriate. For example, new information may come to an
agency’s attention, legislative or regulatory developments in other areas
may have an effect on a previously published rule, or different policy views
may warrant consideration.
A search of the Federal Register database on Westlaw ("effective date"
/s delay! suspend! /s indefinite! "until #further notice") identifies scores of
instances in which an agency has indefinitely delayed or suspended the
effective date of an earlier action, often without notice and comment, and
usually with a minimum of explanation. For example, in 2015, an agency
indefinitely delayed (without notice and comment) the effective date of a
previously issued rule to allow the agency to address multiple concerns
raised in petitions for reconsideration. See 80 Fed. Reg. 58633 (Sept. 30,
32

2015). Similarly, in 2006, an agency delayed until further notice the effective
date of an earlier-published rule, to allow for reconsideration. See 71 Fed.
Reg. 52983 (Sept. 8, 2006). Indeed, NHTSA has a well-established practice—
further evidence of its inherent authority to administer its regulatory
programs efficiently and in the public interest, JA 78—of delaying the
effective date of an earlier rule where necessary or appropriate to
accommodate reconsideration and other factors. See, e.g., 75 Fed. Reg. 50730
(Aug. 28, 2008); 71 Fed. Reg. 74823 (Dec. 13, 2006); 60 Fed. Reg. 35458 (July
7, 1995); 60 Fed. Reg. 26002 (May 16, 1995). These are just a few of the many
instances—analogous to the delay rule challenged here—of the routine and
uncontroversial step of permitting the agency and the public the opportunity
to consider additional issues before a rule takes effect.
Hundreds of other examples can be found where an agency has
delayed the effective date of earlier action either for a specific period or until
a specified event occurs. Thus, the three earlier brief delays of the effective
date that preceded the delay decision at issue in this case (JA 56, 59, 75) were
of a piece with other agency decisions implementing time-limited delays,
33

extensions, or adoption of new effective dates. See, e.g., 60 Fed. Reg. 26002
(May 16, 1995) (NHTSA, in response to petitions for indefinite delay); 54 Fed.
Reg. 40005 (Sept. 29, 1989) (further extension, totaling more than three
years). And it is routine for a new Administration to direct agencies to delay
the effective dates of rules that were previously promulgated. See, e.g., Anne
Joseph O’Connell, Agency Rulemaking and Political Transitions, 105 Nw. U.L.
Rev. 471, 472-473, 530 (2011); William M. Jack, Taking Care that Presidential
Oversight of the Regulatory Process Is Faithfully Executed: A Review of Rule
Withdrawals and Rule Suspensions Under the Bush Administration's Card
Memorandum, 54 Admin. L. Rev. 1479, 1498-1511 (2002).
Indeed, the practice is so common that the Office of the Federal
Register recognizes the delay of an earlier rule’s effective date as a wellestablished category of agency action. Thus, that office’s guidance to federal
agencies includes a discussion of how such a delay decision should be
prepared for publication. Office of the Federal Register, Document Drafting
Handbook (2017 ed.) 3-10 to 3-13, https://www.archives.gov/files/federalregister/write/handbook/ddh.pdf. It lists both “delay of effective date” and
34

“suspension of effectiveness” as “[f]requently used action lines” for a
document published in the Federal Register. Id. at 3-5.
2.

Petitioners point to a few instances in which courts have

determined that a particular agency action was inappropriate in the
circumstances, but there is no categorical prohibition against delaying the
effective date of an earlier rule. Thus, this Court in NRDC v. Abraham
concluded that the anti-backsliding provision in another statutory regime
under EPCA precluded the Department of Energy from reconsidering a
published rule establishing energy-conservation standards, and that a delay
of the effective date of that rule to permit reconsideration was accordingly
impermissible. Abraham, 355 F.3d at 194-195, 203-206. But Abraham did not
announce a sweeping legal rule prohibiting agency reconsideration where
the anti-backsliding provision does not apply, and it would be inappropriate
here to consider prematurely the question whether NHTSA’s ongoing
reconsideration of the CAFE civil penalty rate is permissible, as the record

35

in this case does not include the agency’s final decision, including its legal
and factual rationale.13
Petitioners also cite a recent decision addressing an EPA action under
the Clean Air Act. Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (per
curiam). There, the D.C. Circuit held that EPA was barred from staying a
regulation whose effective date had already passed, where the regulation
was therefore in effect and compliance obligations had already accrued. Id.
at 7. But NHTSA here acted before the effective date of its earlier rule.
Indeed, the Office of the Federal Register distinguishes between a delay of
an effective date before that date has passed and a stay of the regulatory text
after a rule has gone into effect. Handbook at 3-10 to 3-13. And the D.C.
Circuit specifically addressed whether a provision in the Clean Air Act
governing agency stays authorized the EPA action. Clean Air Council, 862
F.3d at 9.

13

The decision in Abraham came after the agency’s reconsideration was
complete. See 355 F.3d at 190-191 (noting petitions for review of delay rule
and subsequent petitions for review from final rule).
36

The unique circumstances addressed in a few cases do not support
petitioners’ effort to urge a general prohibition against delaying an effective
date. And this case presents nothing like those situations.
Many of petitioners’ arguments are directed not at the delay decision
itself but at NHTSA’s decision to reconsider the underlying substantive
questions concerning the appropriate CAFE civil penalty rate. But those
arguments, including petitioners’ views about the appropriate level for such
a rate or their assertions about statutory constraints on the agency’s
authority, are premature. For example, petitioners suggest that the 2015 Act
prohibits an agency from undertaking an inquiry into the negative economic
impact of a presumptive increase in a civil monetary penalty, including the
required notice and comment rulemaking, after August 1, 2016. States Br.
33-34; NRDC Br. 32-33. But nothing in the statute precludes an agency from
undertaking notice and comment rulemaking and reconsidering an interim
final rule to assess such matters as the statutory standard of “negative
economic impact” and the interaction of the 2015 Act with other statutory
limits.

The 2015 Act includes an “[e]xception” to the August 1, 2016,
37

statutory deadline and the associated interim final rule procedure: “an
agency may adjust the amount of a civil monetary penalty by less than the
otherwise required amount if,” after notice and comment rulemaking, the
agency determines that the higher amount “will have a negative economic
impact” or the “social costs outweigh the benefits,” and “the Office of
Management and Budget concurs with [that] determination.” 28 U.S.C.
§ 2461 note § 4(c). The statute says nothing about the sequence of those
events, or whether an agency may, as NHTSA has done here, invoke the
exception as part of its reconsideration of an interim final rule.14 Petitioners’
argument is fundamentally an objection to the ongoing reconsideration (and
can be raised at the appropriate time in a challenge to that proceeding); it is
not a proper basis to challenge the delay rule.
Most significantly, there is nothing in the CAFE statute that restricts or
limits NHTSA’s authority to delay the effective date of an earlier rule

14

The passage of the August 2016 deadline in any event does not
disempower an agency from exercising its authority. Not every agency
acted before the deadline. See, e.g. 82 Fed. Reg. 28760 (June 26, 2017) (NASA
interim final rule, effective August 25, 2017).
38

increasing the civil penalty rate while the agency reconsiders that rule. That
statute directs NHTSA to implement the CAFE program, and the agency
exercised that authority here.
C.

Notice And Comment Were Not Required.

Petitioners contend that NHTSA was required to undertake noticeand-comment rulemaking before issuing the delay decision. States Br. 3843; NRDC Br. 33-41. But not all agency actions require notice and comment.
“The APA’s notice-and-comment requirements apply only to substantive,
what are sometimes termed legislative, rules, not to, inter alia, rules of agency
organization, procedure, or practice.” Time Warner Cable Inc. v. FCC, 729 F.3d
137, 168 (2d Cir. 2013) (quotation marks omitted). The delay decision was
not a substantive or legislative rule. It was merely an interim procedural
step, facilitating the agency’s own ongoing consideration of the underlying
issues.15

15

It does not matter whether the agency identified the delay decision
as a procedural rule. Time Warner, 729 F.3d at 168 (“label * * * is not, for our
purposes, conclusive”) (quoting Lewis-Mota v. Secretary of Labor, 469 F.2d 478,
481-482 (2d Cir. 1972)).
39

“Substantive rules ‘create new law, rights, or duties, in what amounts
to a legislative act.’” Time Warner, 729 F.3d at 168 (quoting Sweet v. Sheahan,
235 F.3d 80, 91 (2d Cir. 2000)). There is no bright line separating substantive
from procedural rules; as this Court recognized, “all procedural rules affect
substantive rights to some extent.” Ibid. Thus, it is not dispositive that
petitioners seek to weave a speculative chain of possibilities under which
they believe the delayed effective date might alter the incentives of
manufacturers to comply with substantive CAFE standards. For the same
reasons why that highly attenuated chain of possibilities is insufficient to
demonstrate standing, it is also insufficient to show that the delay decision
is substantive. See supra, 10-15.
Even if the delay decision were a substantive rule, the APA permits an
agency to dispense with notice and comment for good cause. NHTSA
explained that its delay decision was permitted by the statutory good-cause
exception, which provides that notice and comment are not required where
those additional procedures are “impracticable, unnecessary, or contrary to
the public interest.” 5 U.S.C. § 553(b)(B). Here, NHTSA found that the good40

cause exception applied because “the effective date of the rule [was]
imminent,” and the agency was “already seeking out public comments on
the underlying issues” in its sua sponte reconsideration. JA 78. Moreover,
because the increased penalty rates would not be applied until 2020 at the
earliest, a delay of the effective date would have no immediate practical
effect. Ibid.
The APA’s good-cause exception “is inevitably fact- or contextdependent.” Mid-Tex Elec. Coop., Inc. v. FERC, 822 F.2d 1123, 1132 (D.C. Cir.
1987). And “[t]he interim status of the challenged rule is a significant factor”
in applying that contextual inquiry. Ibid. (“a rule’s temporally limited scope
is among the key considerations in evaluating an agency’s ‘good cause’
claim”). Here, the interim nature of the delay decision—extending the
effective date of the earlier reconsideration decision while the agency
undertakes further reconsideration—confirms that the good-cause exception
was properly invoked here.
In context, the delay decision facilitated the agency’s notice-andcomment rulemaking proceedings. The delay decision was part of the
41

agency’s ongoing consideration that itself began with an interim final rule
issued without notice and comment in July 2016, also based on the good
cause exception. JA 28. And the December 2016 reconsideration decision
was also issued without the benefit of notice and comment. The justification
for the delay rule was to permit the agency, for the first time, to seek the
public’s views on significant legal and factual questions about the
appropriate CAFE civil penalty rate.

JA 77-78.

And that notice-and-

comment rulemaking effort is now underway with the agency’s issuance of
the NPRM. In context, the delay decision was not required to be preceded
by notice-and-comment procedures.
The delay decision is unlike the more consequential agency actions
that courts have held must be preceded by notice and comment, such as
those that change substantive policy. See, e.g., Zhang v. Slattery, 55 F.3d 732,
746 (2d Cir. 1995) (rule “creates a new basis on which aliens may be granted
refugee status; it changes an existing policy”). Here, by contrast, the delay
decision merely maintained the status quo while the agency continued its
process of reconsidering the underlying substantive issues before the earlier
42

rule took effect.

That interim, procedural step in an ongoing agency

proceeding need not be preceded by cumbersome and unnecessary noticeand-comment procedures.
Moreover, additional procedures would have been unnecessary, both
because the agency was simultaneously inviting public comment about the
substantive issues in the related reconsideration proceeding that the
extension facilitated, and because the interim extension of the effective date
would have no practical effect. JA 78. The “unnecessary” prong of the
APA’s good-cause exception, 5 U.S.C. § 553(b)(B), applies when an
administrative rule is “a routine determination, insignificant in nature and
impact, and inconsequential to the industry and to the public.” Utility Solid
Waste Activities Grp. v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001) (quotation
marks omitted). Here, the public’s interest has principally focused on the
appropriate level of the CAFE civil penalty rate. By comparison with the
substantive issues surrounding that question, the delay of the effective date
did not warrant separate notice-and-comment procedures.

43

Notice-and-comment procedures were also unnecessary because, as
NHTSA explained, there would be “no immediate, concrete impact from the
delay” of the effective date. JA 78. The December 2016 reconsideration
rule—which petitioners did not challenge—“does not increase CAFE
penalties before Model Year 2019, and therefore, the delay will not affect the
civil penalty amounts assessed against any manufacturer for violating a
CAFE standard prior to the 2019 model year at the earliest, i.e., until
sometime in 2020.” Ibid. Because NHTSA’s reconsideration will be complete
long before then, there will be no practical impact attributable solely to the
extension of the effective date.16
As NHTSA explained, notice-and-comment procedures were also
“impracticable,” 5 U.S.C. § 553(b)(B), because of the limited time between
the agency’s July 7, 2017, decision to reconsider the underlying issues
concerning the CAFE civil penalty rate and the July 10, 2017, end of the latest

16

Petitioners do not argue that agency action has been unreasonably
delayed or unlawfully withheld, and this case would in any event not be an
appropriate vehicle for such a claim. See 5 U.S.C. § 706(1).
44

extension of the effective date. That limited time by itself did not require the
agency to forgo notice and comment, as NHTSA could have issued another
time-limited delay of the effective date in order to conduct notice-andcomment rulemaking about whether to adopt a further delay pending the
outcome of the agency’s reconsideration of the substantive issues. But
combined with the foregoing considerations, it demonstrates that the
additional delay and complexity of notice-and-comment procedures would
have been “contrary to the public interest,” 5 U.S.C. § 553(b)(B). Se Mid-Tex,
822 F.2d at 1133 (emphasizing “the combined effect of the cited
considerations” in agreeing with an agency “that delaying its interim rule
would be contrary to the public interest”).17
As a practical matter, undertaking notice and comment would have
been cumbersome and duplicative, and would have made no substantive
difference. There is no reason to believe that comment on the effective date

17

If this Court were to determine that notice and comment is required
before an indefinite delay of the effective date, it should remand without
vacating, to permit NHTSA to follow the required procedures. See Sugar
Cane Growers Co-op. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002).
45

alone was essential or would have been meaningful. Any comment would
presumably have addressed issues about the propriety of a particular
penalty rate or the effect of imposing an increased rate on a particular model
year of vehicles, and the related question of incentives created by such an
increased rate. But those substantive issues are precisely the topics on which
the agency invited substantive comments in the course of its ongoing
reconsideration of those issues. See JA 80-81. Moreover, petitioners and
other members of the public will now have the opportunity—in the ongoing
notice and comment rulemaking proceeding—to comment on those issues
and other substantive aspects of the civil penalty rate. See NPRM 4-8
(summary).
This Court’s decision in Abraham is not to the contrary. There, the
Court concluded that—because the Department of Energy had determined
that the effective date was a significant event that triggered the constraints
of the anti-backsliding provision—the agency could not describe the
effective date as insignificant. See Abraham, 355 F.3d 204-205. But there is
no similar legal significance attached to the effective date in the
46

circumstances here. Similarly, the D.C. Circuit’s decision in Clean Air Council
is inapposite because the effective date in that case had already come and
gone, and the earlier regulation applied to regulated entities by the time EPA
issued its stay. See 862 F.3d at 5.

CONCLUSION
For the foregoing reasons, the petitions for review should be denied or
dismissed.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General

STEVEN G. BRADBURY
General Counsel
PAUL M. GEIER
Assistant General Counsel
U.S. Department Of Transportation

MARK B. STERN
[phone]
H. THOMAS BYRON III
[phone]
Attorneys, Appellate Staff
Civil Division, Room 7529
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

JONATHAN MORRISON
Chief Counsel
EMILY SU
Assistant Chief Counsel
Nat’l Highway Traffic Safety Admin.

MARCH 2018

47

CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that this brief complies with the requirements of FRAP
32(a)(5) and (6) because it has been prepared in 14-point Palatino Linotype,
a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of FRAP 32(a)(7)(B) because it contains 8633 words, excluding the
parts of the brief exempted under FRAP 32(a)(7)(B)(iii), according to the
count of Microsoft Word.

/s/ H. Thomas Byron III
H. THOMAS BYRON III

CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2018, I electronically filed the
foregoing [Corrected] Brief For Respondents with the Clerk of the Court for
the United States Court of Appeals for the Second Circuit by using the
appellate CM/ECF system (originally filed and served on March 27, 2017).
The participants in the case are registered CM/ECF users and service
will be accomplished by the appellate CM/ECF system.

/s/ H. Thomas Byron III
H. THOMAS BYRON III