[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Proposed Rules]
[Pages 5347-5350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01415]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 85, 86, 600

[EPA-HQ-OAR-2009-0472; FRL-9772-7]


Denial of Reconsideration Petition on Model Year 2012-2016 Light 
Duty Vehicle Greenhouse Gas Emissions Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Denial of petition for reconsideration.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
providing notice that it is denying the petition of the Pacific Legal 
Foundation (PLF) to reconsider the final rules establishing greenhouse 
gas emissions standards from light duty motor vehicles for model years 
2012-2016.

DATES: This action is effective on January 25, 2013.

ADDRESSES: EPA's docket for this action is Docket ID No. EPA-HQ-OAR-
2009-0472. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
EPA's Docket Center, Public Reading Room, EPA West Building, Room 3334, 
1301 Constitution Avenue NW., Washington, DC 20004. This Docket 
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744, and the telephone number for the Air Docket is 
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Steven Silverman, Office of General 
Counsel, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460; telephone number: (202) 564-5523; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:
    Acronyms and Abbreviations. The following acronyms and 
abbreviations are used in this Decision.

APA Administrative Procedures Act
API American Petroleum Institute
CAA Clean Air Act
CO2 Carbon dioxide
CH4 Methane
EPA Environmental Protection Agency
FOIA Freedom of Information Act
FR Federal Register
GHG Greenhouse gas
HFC Hydrofluorocarbon
LDVR Light Duty Vehicle Rule
MY Model year
N2O Nitrous oxide
NHTSA National Highway Traffic Safety Administration
PLF Pacific Legal Foundation
SAB Science Advisory Board

I. Introduction

    On May 7, 2010, the EPA published final rules establishing 
standards limiting emissions of carbon dioxide (CO2), 
methane (CH4), nitrous oxide (N2O) and 
hydrofluorocarbons (HFCs) from new light duty motor vehicles, including 
passenger cars, medium duty passenger vehicles, and light trucks for 
model years 2012-2016. 75 FR 25324. In this joint rulemaking, the 
National Highway Traffic Safety Administration (NHTSA), on behalf of 
the Department of Transportation, issued rules to reduce fuel 
consumption from these vehicles. Together these rules comprise a 
coordinated and comprehensive National Program designed to address the 
urgent and closely intertwined challenges of reducing dependence on 
oil, achieving energy security, and ameliorating global climate change. 
PLF petitioned EPA to reconsider its greenhouse gas standards. Because 
the petition does not state grounds which satisfy the requirements of 
section 307(d)(7)(B) of the Clean Air Act, EPA is denying the petition.

II. Standard for Reconsideration

    Section 307(d)(7)(B) of the Clean Air Act (CAA) states that: ``Only 
an objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review. If the person raising an 
objection can demonstrate to the Administrator that it was 
impracticable to raise such objection within such time or if the 
grounds for such objection arose after the period for public comment 
(but within the time specified for judicial review) and if such 
objection is of central relevance to the outcome of the rule, the 
Administrator shall convene a proceeding for reconsideration of the 
rule and provide the same procedural rights as would have been afforded 
had the information been available at the time the rule was proposed. 
If the Administrator refuses to convene such a proceeding, such person 
may seek review of such refusal in the United States court of appeals 
for the

[[Page 5348]]

appropriate circuit. Such reconsideration shall not postpone the 
effectiveness of the rule. The effectiveness of the rule may be stayed 
pending such reconsideration, however, by the Administrator or the 
court for a period not to exceed three months.''
    Thus, reconsideration is required only if a petition for 
reconsideration shows that the objection or claim could not have been 
presented during the comment period--either because it was 
impracticable to raise the objection during that time or because the 
grounds for raising the objection arose after the period for public 
comment but within 60 days of publication of the final action (i.e. 
``the time specified for judicial review''). To be of central relevance 
to the outcome of a rule, an objection must provide substantial support 
for the argument that the promulgated regulation should be revised. See 
Coalition for Responsible Regulation v. EPA, 684 F.3d 102, 125 (D.C. 
Cir. 2012); see also 76 FR 28318 (May 17, 2011) and other actions there 
cited.
    Because all of the objections or claims raised in PLF's petition 
could have been presented to EPA during the comment period for the 
rulemaking, and because PLF has failed to demonstrate that its 
objection is of central relevance to the outcome of the rulemaking, EPA 
is denying the request for reconsideration.

III. PLF's Petition for Reconsideration

    In its petition, PLF alleges that EPA failed to comply with the 
requirements of 42 U.S.C. section 4365(c)(1). This provision states 
that ``[t]he Administrator, at the time any proposed criteria document, 
standard, limitation or regulation under the Clean Air Act, the Federal 
Water Pollution Control Act, the Resource Conservation Recovery Act, 
the Noise Control Act, the Toxic Substances Control Act, or the Safe 
Drinking Water Act, or under any other authority of the Administrator, 
is provided to any other Federal agency for formal review and comment, 
shall make available to the [Science Advisory Board, or SAB] such 
proposed criteria document, standard, limitation, or regulation, 
together with relevant scientific and technical information in the 
possession of the Environmental Protection Agency on which the proposed 
action is based.'' Section 4365(c)(2) then provides that ``[t]he Board 
may make available to the Administrator, within the time specified by 
the Administrator, its advice and comments on the adequacy of the 
scientific and technical basis of the proposed criteria document, 
standard, limitation, or regulation, together with any pertinent 
information in the Board's possession.''
    PLF maintains that EPA failed to make the proposed model years 
(MYs) 2012-2016 light duty vehicle greenhouse gas (GHG) rule available 
to the SAB. PLF then argues that this alleged failure is of central 
relevance to the outcome of the rulemaking, arguing that an ``utter 
failure'' of EPA to comply with a procedural requirement imposed by a 
statute other than the Clean Air Act is of central relevance if there 
is any uncertainty as to the impact of the failure (Petition pp. 7, 17-
18), or in the alternative that there is a substantial likelihood that 
the rule would have significantly changed absent the alleged procedural 
error by EPA (Id. pp. 8, 18-21). PLF maintains that there is a 
substantial likelihood that the rule would have changed by assuming 
that the SAB would have provided scientific and technical advice to EPA 
of sufficient import to change the rule's outcome, consistent with the 
SAB's august scientific standing and the Congressional purpose in 
establishing the opportunity for SAB review. Id. PLF further maintains 
that it could not raise its objection to EPA until after the close of 
the public comment period to the rulemaking, stating that it did not 
become aware of the issue until November 10, 2010, when EPA replied to 
PLF's Freedom of Information Act request seeking copies of ``[a]ll 
documents, memorandums (sic) or correspondences (sic) dealing with the 
question of whether EPA should submit, or should have submitted, 
information to the Science Advisory Board in connection with the 
promulgation of the [light duty vehicle rule] LDVR''. PLF FOIA Request 
of September 15, 2010 p. 1.

IV. EPA's Response

    1. PLF has failed to demonstrate that ``it was impracticable to 
raise [its] objection'' during the period for public comment in the 
rulemaking, or in the time specified for seeking judicial review (i.e. 
within 60 days of the rule's publication--July 10, 2010), as required 
by CAA section 307(d)(7)(B).
    PLF's objection is legal in nature, and thus could be raised at any 
time. PLF maintains that it could not raise its objection until 
receiving a response to its Freedom of Information Act request, but 
this is not correct. PLF's public comments could simply have stated 
PLF's belief that 42 U.S.C. section 4365(c) requires EPA to submit the 
proposed rule to the SAB, and that any failure to do so is error. PLF 
states that it required an answer to its FOIA request before raising 
its objection because only then did it learn that EPA had not submitted 
the light duty vehicle proposal to the SAB. Petition p. 13. But its 
objection does not require this answer. Moreover, PLF did not submit 
its FOIA request until September 15, 2010, well after the rule was 
signed, disseminated electronically, and published, and after the 
period for seeking judicial review of the rule had expired. Thus, even 
under its view, the grounds for PLF's objection did not arise until 
after the time period for judicial review so that PLF's objection was 
raised in an untimely manner regardless of its argument concerning its 
FOIA petition. In addition, EPA's FOIA response does not provide PLF 
with information necessary to raise its objection, since the FOIA 
request asked whether EPA ``submitted'' the proposed rule and related 
documents to the SAB. The statutory requirement in section 4365(c) is 
for EPA to ``make available'' certain proposals to the SAB, as 
discussed below. Thus, PLF was in essentially the same position after 
receiving EPA's FOIA response as it was before its request. The same 
objection it raised in the petition could have been raised during the 
public comment period.
    2. PLF fails to demonstrate that its objection is of central 
relevance to the outcome of the rulemaking, as required by section 
307(d)(7)(B).
    First, PLF fails to demonstrate that 42 U.S.C. 4365(c)(1) is 
applicable. That provision applies only when EPA submits certain 
documents to other agencies ``for formal review and comment.'' The 
light duty vehicle GHG rule implements section 202(a) of the Clean Air 
Act. That provision contains no requirement that implementing 
regulations be submitted to other federal agencies for formal review 
and comment, nor did EPA do so. EPA submitted the draft of the proposed 
rule to the Office of Management and Budget for informal interagency 
review, pursuant to Executive Order 12866, but this is not the type of 
formal review to which section 4365(c)(1) speaks. See Coalition for 
Responsible Regulation v. EPA, 684 F. 3d at 124 (noting this 
distinction); compare CAA section 202(a) with 49 U.S.C. section 
32902(b) and (j) requiring the Secretary of Transportation to consult 
with the Secretary of Energy and the Administrator of EPA before 
prescribing average fuel economy standards for light duty motor 
vehicles, and requiring the Secretary of Transportation to provide a 
period of time for the Secretary of Energy to submit comments and for 
those comments to be included in any proposal issued by the Secretary 
of

[[Page 5349]]

Transportation; see also CAA section 231(a)(1)(B)(i) (``The 
Administrator shall consult with the Administrator of the Federal 
Aviation Administration on aircraft engine emission standards'').
    Second, even assuming that the provision applies, EPA did make the 
proposed regulation and supporting information available to the SAB in 
advance of the public comment period. Documents are made available when 
they are ``accessible'' or ``obtainable.'' Collins English Dictionary--
Complete and Unabridged (Harper Collins 2003) (definition of 
``available''). EPA made the proposed rule and underlying support 
documents accessible and obtainable by publication of the proposed rule 
in the Federal Register, and via mass electronic dissemination by 
posting both the proposed rule and all of the scientific and technical 
support documents on the Agency's Web site essentially 
contemporaneously with their signature by the Administrator.\1\
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    \1\ EPA is aware that the D.C. Circuit, in holding that EPA had 
not made available a proposed regulation to the SAB, stated that EPA 
had not ``submitted'' the proposed regulation to the Board. American 
Petroleum Inst. v. EPA, 665 F.2d 1176, 1189 (D.C. Cir. 1981). This 
case, however, antedated the present period of instantaneous 
availability of documents via electronic dissemination. EPA believes 
that by publishing and posting the proposed regulation and the 
scientific and technical support documents those materials have been 
made available to the SAB.
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    Third, even assuming arguendo that EPA committed a procedural 
error, PLF has failed to demonstrate that its objection provides 
substantial support for the argument that the promulgated regulation 
should be revised, and therefore is of central relevance to the outcome 
of the rule. CAA section 307(d)(7)(B).
    PLF argues that there is a substantial likelihood that the rule 
would have changed if EPA had followed the claimed procedure, by 
assuming that the SAB would have provided scientific and technical 
advice to EPA of sufficient import to change the rule's outcome, 
consistent with the SAB's scientific standing and the Congressional 
purpose in establishing the opportunity for SAB review. Petition pp. 8, 
21. This is unpersuasive. The SAB explicitly declined to consider and 
``make available * * * advice and comments on the adequacy of the 
scientific and technical basis'' on the proposed light duty vehicle GHG 
standards for model years 2017 to 2025 in response to EPA's 
communication to SAB about the proposal and supporting documents.\2\ 
That proposal built upon and was closely related to the rulemaking that 
established the standards for MYs 2012-2016, the subject of PLF's 
petition here. Moreover, as in the MYs 2017-2025 rulemaking, 
substantial issues of pure science were not presented in the MYs 2012-
2016 rulemaking. Instead the critical issues were what technologies are 
available for light-duty vehicles to reduce greenhouse gases for MYs 
2012-2016, the cost and effectiveness of those technologies, and their 
availability in the lead time provided by the rule, making SAB 
participation both less likely and less pertinent. See 75 FR at 25403-
04. Indeed, none of the public comments in the MY2012-2016 rulemaking 
took serious issue that EPA had overestimated potential technology 
availability, penetration and cost. \3\ See EPA, Light Duty Vehicle 
Emission Standards and Corporate Average Fuel Economy Standards: EPA 
Response to Comment Document (EPA-420-R-10-012, April 2010), section 3. 
There were no judicial challenges to the rule's substantive standards 
at all. See Coalition for Responsible Regulation, 684 F.3d at 126. 
Given these circumstances, EPA does not see any significant likelihood 
that SAB involvement would have occurred or would have changed 
significantly the technology-based standards adopted in the rule. The 
petitioner has therefore failed to carry its burden of showing that its 
objection provides substantial support for the argument that the 
promulgated regulation should be revised and therefore is of central 
relevance to the rule. CAA section 307(d)(7)(B).
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    \2\ PLF did not present either oral or written statements to the 
SAB at its public meeting, even though the meeting was publically 
noticed, comments were solicited by the SAB, and other entities 
submitted an oral and written statement to the SAB (addressing a 
different proposed rule). See 77 FR 12579, 12580 (March 1, 2012) and 
EPA-HQ-OAR-2010-0799-11793.
    \3\ PLF indicates that its interest in the rulemaking is that 
its members are light duty vehicle users and may incur greater costs 
as a result of the light duty vehicle rule's stringency, Petition 
pp. 2-3, although it submitted no comments on these issues.
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    Notwithstanding the clear requirement in section 307(d)(7)(B) that 
its objection must be of central relevance to the outcome of the rule, 
PLF argues that it does not have to make a showing to that effect. PLF 
argues instead that the test under section 307(d)(7)(B) varies 
depending on whether the procedural requirement at issue derives from 
the CAA or from another statutory provision. While PLF's argument is 
not exactly clear, PLF argues that for procedural requirements imposed 
by a statute other than the CAA, an ``utter failure'' to comply with a 
required procedure is not harmless error under section 307(d)(7)(B) if 
there is any uncertainty of the impact of the error. For procedural 
requirements imposed by the CAA, PLF argues that the explicit test of 
section 307(d)(8) applies, ``substantial likelihood that the rule would 
have been significantly changed if such errors had not been made.'' PLF 
argues that this case falls under the first asserted principle, as the 
procedural requirement derives from a statute other than the CAA. PLF 
thus argues there was an utter failure to comply with 42 U.S.C. section 
4365(c), and there is some uncertainty of the impact of the failure. In 
the alternative, they argue that even if the second test applies, this 
case meets the criteria of section 307(d)(8), citing to Kennecott Corp. 
v. EPA, 684 F.2d 1007 (D.C. Cir. 1982)
    EPA disagrees that this bifurcated scheme is the appropriate test 
to apply. Section 307(d)(7)(B) is the applicable provision here, and 
its test is whether PLF's objection provides substantial support for 
the argument that the promulgated regulation should be revised. There 
is no basis in the text of section 307(d)(7)(B) to draw a distinction 
based on whether a procedural requirement is imposed by the Clean Act 
or by another statute. Section 307(d)(7)(B) establishes the same 
requirements irrespective of the statutory source of the procedural 
requirement a petitioner points to. Section 307(d)(7)(B), like section 
307(d)(8), embodies a significant hurdle for administrative 
reconsideration, and reflects the value placed on preserving the 
finality of EPA decision making. 75 FR 49556, 49560-62 (August 13, 
2010). This is so whether the procedural requirement derives from the 
CAA or from another statute.
    The cases cited by PLF do not support their view of a bifurcated 
scheme under section 307(d)(7)(B). PLF argues that ``[w]hen an 
administrative agency utterly fails to comply with a procedural 
rulemaking requirement imposed by a statute other than the one under 
which the rule is being promulgated, the failure cannot be considered 
harmless error if there is any uncertainty regarding what the rule may 
have been but for the failure.'' Petition p. 7. PLF cites New Jersey v. 
EPA, 626 F. 2d 1038, 1049-50 (D.C. Cir. 1980) and Sugar Cane Growers 
Coop. of Fla. v. Veneman, 289 F. 3d 89, 96 (D.C. Cir. 2002) for this 
proposition. However these cases do not pronounce the general rule 
petitioners claim, and are not on point. Both State of New Jersey and 
Sugar Cane Growers concerned rules that were not subject to section 
307(d) at all, so the cases do not address and are not relevant to the

[[Page 5350]]

requirement imposed by section 307(d)(7)(B). Rather, both cases dealt 
with a failure of the government agency to follow the notice and 
comment procedures required for rulemaking under the Administrative 
Procedure Act (APA). The views of the court on the lack of harmless 
error under those specific circumstances addressed that violation of 
the APA, and did not provide a more general rule applicable to any and 
all other procedural violations or other statutes. Here, EPA fully 
complied with the rulemaking procedures required under CAA section 
307(d). There was no ``utter failure'' to conduct notice and comment 
rulemaking procedures.
    As discussed above, EPA was not required to but did make the 
proposed rule available to the SAB pursuant to 42 U.S.C. section 
4365(c)(1). Under that statute there is no requirement or expectation 
that the SAB will in fact voluntarily provide advice and comments to 
EPA and in this case, as discussed above, subsequent SAB action 
concerning the MY2017-2025 rulemaking proposal to control greenhouse 
gases indicates just the opposite. The New Jersey and Sugar Cane cases 
thus addressed wholly different circumstances, and provide no basis to 
find that the requirement of CAA section 307(d)(7)(B) does not apply to 
this rulemaking according to its terms or that the test it sets for 
reconsideration has been met.
    Moreover, the D.C. Circuit recently held with respect to 42 USC 
section 4365(c)(1) itself that a petitioner ``must sho[w] that this 
error was `of such central relevance to the rule that there is a 
substantial likelihood that the rule would have been significantly 
changed if such errors had not been made.' '' This was not satisfied 
when petitioners provided no more of a showing than alleging that EPA 
had failed to comply with this provision. Coalition for Responsible 
Regulation v. EPA, 684 F.3d at 124. The Court applied the test in 
section 307(d)(8) without drawing any distinction based on the statute 
that was the source of the procedural requirement. The same applies 
under section 307(d)(7)(B), and as with section 307(d)(8), more must be 
shown than simply alleging that EPA failed to comply.
    The petitioner's citation of Small Refiners Lead Phase-Down Task 
Force v. EPA, 705 F.2d 506, 522-23 (D.C. Cir. 1983) also does not 
support its argument. The petition argues that the 1977 amendments to 
the Clean Air Act were intended to supplement the procedural 
requirements of the Administrative Procedure Act, not replace them. 
Petition p. 9. Construing section 307(d)(8)'s requirement that a 
procedural error creates a ``substantial likelihood that the rule would 
have been significantly changed'', the court stated that ``[a]t a 
minimum, failure to observe the basic APA procedures, if reversible 
error under the APA, is reversible error under the Clean Air Act as 
well.'' The court immediately cautioned, however, ``[o]n the other 
hand, section 307(d)(8) sets a restrictive tone for our review of 
procedural errors that would not violate the APA'', citing Sierra Club 
v. Costle (657 F.2d at 391) for the proposition that ``the essential 
message of so rigorous a standard for procedural reversal is that 
Congress was concerned that EPA's rulemaking not be casually overturned 
for procedural reasons.'' 705 F.2d at 523. Since the APA itself 
contains a harmless error provision (5 USC section 706), requiring 
petitioners to show a likelihood that the rule would have changed is 
not a diminution of the APA but a gloss on it. Thus, the holding in 
Small Refiners was limited to violations of the notice and comment 
requirements of the APA, and, contrary to PLF's claim, the court did 
not pronounce a general rule establishing a different test for any and 
all procedural requirements imposed by other statutes. Rather, in 
discussing procedural requirements other than the APA, the court 
indicated that section 307(d)(8) applied and set a restrictive tone for 
judicial review of such errors.
    More basically, the D.C. Circuit has twice held that failure to 
comply with the requirements of section 4365(c)(1) is not reversible 
error where petitioners fail to show that the error is of such central 
relevance to the proceeding that there is a substantial likelihood that 
the rule would have significantly changed but for the (claimed) 
procedural violation. Coalition for Responsible Regulation v. EPA, 684 
F.3d at 124; API v. EPA, 665 F.2d at 1188-89. The fact that the 
procedural requirement at issue in those cases stems from a statute 
other than the CAA made no difference and did not change the burden on 
the petitioner to prevail on their objection. The same applies under 
section 307(d)(7)(B).
    Finally, PLF points to Kennecott Corp. v. EPA, 684 F.2d 1007 (D.C. 
Cir. 1982) as support for its claim that EPA's alleged failure to 
comply with this statutory provision satisfies the requirements of 
section 307(d)(8). As noted above, this same claim was recently 
rejected in Coalition for Responsible Regulation v. EPA, 684 F.3d at 
124. Here, PLF does no more than describe the purpose of this 
provision, with no showing of any likelihood of an impact or change on 
the rulemaking. As discussed above, all of the indications point the 
other way and indicate no such likelihood, even if one assumes a 
procedural error was committed.

V. Conclusion

    The objections or claims raised in PLF's petition could have been 
presented to EPA during the comment period for the rulemaking, and the 
grounds for the objections did not arise after the period for public 
comment but within the time specified for judicial review. In addition, 
PLF has failed to demonstrate that its objection provides substantial 
support for the argument that the promulgated regulation should be 
revised and therefore has failed to demonstrate that its objection is 
of central relevance to the outcome of the rulemaking. Based on this, 
EPA is denying the request for reconsideration.

    Dated: January 14, 2013.
Lisa P. Jackson,
Administrator.
[FR Doc. 2013-01415 Filed 1-24-13; 8:45 am]
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