Amicus Curiae Brief — Volkswagen Group of America, Inc., et al., Petitioners v. The Environmental Protection Commission of Hillsborough County, Florida, et al.

Supreme Court briefFeb 16, 2021

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No. 20-994

IN THE

Supreme Court of the United States

VOLKSWAGEN GROUP OF AMERICA, ET AL.

Petitioners,

ENVIRONMENTAL PROTECTION COMMISSION OF

HILLSBOROUGH COUNTY, ET ANO.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

AMICI CURIAE BRIEF OF FORMER

ENVIRONMENTAL PROTECTION AGENCY,

CALIFORNIA AIR RESOURCES BOARD, AND

DEPARTMENT OF JUSTICE OFFICIALS

JEFFREY E. HOLMSTEAD, RONALD J.

TENPAS, JOHN B. DUNLAP III, AND LYNN

BUHL IN SUPPORT OF PETITIONERS

Kenneth W. Abrams

Matthew A. Fitzgerald

Counsel of Record

Travis C. Gunn

MCGUIREWOODS LLP

Gateway Plaza

800 East Canal Street

Richmond, VA 23219

T: (804) 775-4716

mfitzgerald@mcguirewoods.com

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 4

EPA and CARB have exclusive

authority to regulate motor vehicle

emissions...................................................... 4

II.

EPA and CARB have long been the

exclusive emissions regulators for the

entire life of a motor vehicle........................ 7

III. The Ninth Circuit’s decision conflicts

with Congress’s determination to

give EPA and CARB the exclusive

power to regulate and enforce motor

vehicle emissions ....................................... 17

CONCLUSION .......................................................... 21

TABLE OF AUTHORITIES

Federal Cases

Page(s)

Allway Taxi, Inc. v. City of New York,

340 F. Supp. 1120 (SDNY 1972) .......................... 18

Engine Manufacturers Ass’n v. U.S. EPA,

88 F.3d 1075 (D.C. Cir. 1996) ............................. 4-6

Motor & Equipment Manufacturers Ass’n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979) .............................. 6

Motor Vehicle Manufacturers Ass’n v. New York

State Dep’t of Environment Conservation,

17 F.3d 521 (2d Cir. 1994)................................... 4-5

National Ass’n of Home Builders v. San Joaquin

Valley Unified Air Pollution Control District,

627 F.3d 730 (9th Cir. 2010) .................................. 6

In re Volkswagen “Clean Diesel” Marketing, Sales

Practices, & Products Liability Litigation,

959 F.3d 1201 (9th Cir. 2020) .......................... 7, 19

State Cases

State ex rel. Slatery v. Volkswagen

Aktiengesellschaft,

2019 WL 1220836 (Tenn. Ct. App. March 13,

2019) ..................................................................... 20

State v. Volkswagen AG,

279 So.3d 1109 (Ala. 2018) .................................. 20

iii

State ex rel. Swanson v. Volkswagen

Aktiengesellschaft,

2018 WL 6273103 (Minn. Ct. App. Dec. 3,

2018) ..................................................................... 20

Federal Statutes

42 U.S.C. §

7521(a) ................................................................ 5, 8

7522(a) .................................................................. 15

7541(a) .................................................................. 13

7541(b) .................................................................. 13

7541(c)................................................................... 14

7541(i) ................................................................... 13

7542(b) .................................................................. 11

7543(a) .................................................................... 5

7543(b) .................................................................... 6

State Statutes

Cal. Health & Safety Code § 39002 ............................ 6

Regulations and Legislative Materials

40 C.F.R.

85.1902(b) ........................................................ 12-13

85.1903(a) ........................................................ 12-13

1068.505(f) ............................................................ 15

1068.535................................................................ 15

Control Air Pollution, 59 Fed. Reg. 31306-01

(1994) .................................................................... 16

H.R. Rep. No. 90-728 (1967) ........................................ 5

S. Rep. No. 192, 89th Cong., 1st Sess. 5 (1965) ....... 5-6

Other Authorities

EPA, Emission Recall Report (June 1980) ............... 14

EPA, 2008 Progress Report, Vehicle and

Engine Compliance Activities

(August 2010) ....................................................... 14

EPA, 2014-2017 Progress Report:

Vehicle & Engine Compliance

Activities (2010) .................................................... 14

EPA, Advisory Circular 2B, Field Fixes

Related to Emission Control-Related

Components (1975) ............................................... 15

Environmental Protection Commission

of Hillsborough County v. MercedesBenz USA, LLC, No. 20-02238, Doc.

7 (M.D. Fla.) ......................................................... 19

INTEREST OF AMICI CURIAE 1

Amici Jeffrey E. Holmstead, Ronald J. Tenpas,

John B. Dunlap III, and Lynn Buhl are former EPA,

CARB, and DOJ officials.

Mr. Holmstead served as a former assistant

administrator of the EPA for Air and Radiation from

2001 to 2005.

Mr. Tenpas is a former Assistant Attorney

General for the DOJ’s Environmental and Natural

Resources Division. He is also a former United States

Attorney for the Southern District of Illinois,

responsible for both civil and criminal enforcement.

He worked for the DOJ from 1997 to 2009.

Mr. Dunlap is a former Chairman of CARB,

serving in that role from 1994 to 1998. He continued

as a Board member of CARB until 1999.

Ms. Buhl was an EPA Regional Administrator

for Region V from 2008 to 2009. She was a Deputy

1 Under Supreme Court Rule 37.6, counsel for amici represent

that they authored this brief in its entirety and that none of the

parties or their counsel, nor any other person or entity other

than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Counsel provided timely notice under Rule 37.1(a) of intent to

file this brief to Petitioners and Respondents. Petitioners

Volkswagen Group of America, Inc., Audi of America, LLC, and

Robert Bosch LLC filed a blanket consent to the filing of amicus

briefs. Respondents The Environmental Protection Commission

of Hillsborough County, Florida, and Salt Lake County, Utah,

consented to the filing of this brief.

Assistant Administrator of EPA’s Office of

Enforcement and Compliance Assurance from 2006

to 2008. In 2003 she was Acting Secretary of the

Maryland Department of the Environment. And she

was the director of the Southeast Offices of the

Michigan Department of Environmental Quality

from 1999 to 2003.

Their service collectively spans over 20 years,

from 1997 to 2009, in Republican and Democratic

administrations. Each amicus personally worked to

develop and enforce motor vehicle emissions

regulations that applied to vehicles throughout their

useful lives.

Amici share the view that Congress required

EPA and CARB, alone, to regulate manufacturers’

emissions-related conduct throughout the useful life

of motor vehicles. They also agree that Congress

empowered DOJ to enforce those regulations by

representing

EPA

federal

court.

That

congressional directive of consolidating regulatory

authority in EPA and CARB allowed amici to

uniformly

regulate motor vehicle emissions

throughout America.

EPA and CARB, in carrying out their directive

from Congress, developed special expertise for

regulating motor vehicle emissions and addressing

the unique tradeoffs required to enforce those

regulations. The Ninth Circuit’s decision, however,

elevates States and thousands of local governments,

with no experience in this field, to this same

regulatory status the moment an initial purchaser

drives a vehicle off a dealer’s lot. That decision

undoes Congress’s carefully tailored scheme by

empowering thousands of new regulators to

countermand EPA and CARB’s directives or their

enforcement of emissions standards. In doing so, the

Ninth Circuit’s decision invites the “anarchic

patchwork of federal and state regulatory programs”

that Congress sought to avoid in Title II of the Clean

Air Act.

SUMMARY OF ARGUMENT

In the Clean Air Act, Congress empowered

EPA and CARB to regulate vehicle emissions

throughout the “useful life” of motor vehicles. That

authority vests EPA and CARB with extensive and

exclusive regulatory and compliance oversight of

manufacturers’ motor vehicle emissions conduct—

even after vehicles’ initial public sale. Contrary to the

Ninth Circuit’s “assum[ption]” below, EPA’s and

CARB’s regulatory authority is not “rare[ly]”

implicated in manufacturers’ post-sale conduct.

The Ninth Circuit’s decision threatens EPA’s

and CARB’s exclusive authority to regulate and

enforce auto manufacturers’ compliance with motor

vehicle emissions standards. That exclusive authority

has been the cornerstone of Title II. EPA and CARB

alone can effectively regulate motor vehicle

emissions—even for vehicles in use by the public. By

chiseling away at that exclusive authority, so that

EPA and CARB lack the exclusive authority to

enforce any emission control standard for in-use

vehicles, the Ninth Circuit significantly undermined

EPA’s and CARB’s ability to regulate motor vehicle

emissions and preserve public health.

ARGUMENT

EPA and CARB have exclusive authority to

regulate motor vehicle emissions.

In the Clean Air Act, Congress created a

comprehensive scheme allowing EPA and CARB to

regulate manufacturers to ensure that they build and

maintain vehicles that comply with mobile emissions

standards—not only when new, but throughout their

useful lives. Congress did not segregate EPA and

CARB’s authority by whether the vehicles have

already been sold to the public.

Congress’s

imperative is that EPA and CARB alone have

authority over vehicle manufacturers.

A. In Title II of the Clean Air Act, “Congress

endeavor[ed] to resolve the problems caused by

moveable sources or vehicle emissions.” Motor

Vehicle Manufacturers Ass’n v. New York State Dep’t

of Environment Conservation, 17 F.3d 521, 525 (2d

Cir. 1994).

Unlike the state-led regulatory scheme for

stationary source emissions under Title I of the Act,

“regulation of motor vehicle emissions ha[s] been a

principally federal project.” Engine Manufacturers

Ass’n v. U.S. EPA, 88 F.3d 1075, 1079 (D.C. Cir.

1996). Two related concerns compelled Congress to

impose a unifying, federal regulatory scheme for

motor vehicle emissions. First was “the difficulty of

subjecting motor vehicles, which readily move across

state boundaries, to control by individual states.” Id.

Second was that “the possibility of 50 different state

regulatory regimes raised the spectre of an anarchic

patchwork of federal and state regulatory programs,

a prospect which threatened to create nightmares for

the manufacturers.” Id. Even “identical Federal and

State standards, separately administered, would be

difficult for the industry to meet since different

administration could easily lead to different answers

to identical questions.” H.R. Rep. No. 90-728 (1967)

(emphasis added). “The ability of those engaged in

the manufacture of automobiles to obtain clear and

consistent answers concerning emission controls and

standards is of considerable importance so as to

permit economies in production.” Id.

As a result, Congress empowered EPA to

regulate emissions “from any class or classes of new

motor vehicles or new motor vehicle engines.” 42

U.S.C. § 7521(A)(1). The “cornerstone of Title II is”

found in § 209(a) of the Act, which provides for the

“express preemption of state regulation of automobile

emissions.” Motor Vehicle Manufacturers, 17 F.3d at

526; see also 42 U.S.C. § 7543(a) (“No State or any

political subdivision thereof shall adopt or attempt to

enforce any standard relating to the control of

emissions from new motor vehicles or new motor

vehicle engines subject to this part.”). This expansive

preemption provision was “necessary in order to

prevent a chaotic situation from developing in

interstate commerce in new motor vehicles.” H.R.

Rep. No. 90-728 (1967).

B. Despite this need for a federal regulatory

scheme, Congress also recognized that California,

unique among the states, had been regulating

automobile emissions before passage of the Act.

California had led “in the establishment of standards

for regulation of automotive pollutant emissions.”

S. Rep. No. 192, 89th Cong., 1st Sess. 5 (1965). In fact,

“[t]he first federal emission standards were largely

borrowed from California.” Motor & Equip. v. EPA,

627 F.2d 1095, 1110 n.34 (D.C. Cir. 1979).

So when it came to the Clean Air Act,

Congress provided a waiver process for California.

See 42 U.S.C. § 7543(b)(1). The terms of the

exemption require a state to have had regulatory

emission standards before 1966, qualified California

as the sole state that could seek waiver. Engine

Manufacturers, 88 F.3d at 1079 & n.9.

In turn, California empowered CARB with “the

responsibility” of regulating motor vehicle emissions.

Cal. Health & Safety Code § 39002.

C. The result of this carefully-crafted

“legislative compromise” was neither the “51

different standards” that manufacturers “had

feared,” nor was it the single federal standard they

“had sought.” Engine Manufacturers, 88 F.3d at 1080.

Instead, “manufacturers must cope with two

regulatory standards” as established by EPA and

CARB. Id.

“Generally speaking,” then, “the Act gives the

states the job of regulating stationary sources of

pollution” under Title I—but under Title II, “EPA,

and with the EPA’s permission [CARB], are

responsible for regulating emissions from motor

vehicles and other mobile sources.” Nat’l v. San

Joaquin Valley Unified Air Pollution Control District,

627 F.3d 730, 733 (9th Cir. 2010).

II. EPA and CARB have long been

exclusive emissions regulators for

entire life of a motor vehicle.

the

Given EPA’s and CARB’s exclusive authority

to regulate vehicle emissions under the Clean Air Act,

both EPA and CARB have an extensive history of

regulatory

and

compliance

oversight

manufacturers, both before and after the initial

public sale of vehicles.

Yet the Ninth Circuit “assume[d]” that vehicle

manufacturers would only “rare[ly]” act, after the

initial sale of a new motor vehicle, in a way that

implicates vehicle emissions. In re Volkswagen

“Clean Diesel” Marketing, Sales Practices & Products

Liability Litigation, 959 F.3d 1201, 1225 (9th Cir.

2020) (“assum[ing]” that “intentional tampering with

post-sale vehicles to increase air pollution” would be

“rare”). To the contrary, manufacturers regularly

engage in post-sale conduct that impacts EPA’s and

CARB’s regulatory authority over new motor vehicle

emissions. As a result, as part of Congress’s design,

EPA and CARB thoroughly oversee and regulate

manufacturer activities both before and after an

initial vehicle sale to the public.

A. EPA’s timeline for regulatory and

compliance actions begins at the beginning of a

vehicle’s design stage. EPA will review a

manufacturer’s initial application for a Certificate of

Conformity and conduct testing, while manufacturers

also perform their own emissions and durability

testing. At the end of the design and build phase and

before the vehicle is first sold to the public, EPA

reviews and either grants or denies a manufacturer’s

final application for a Certificate of Conformity.

During a vehicle’s design and build phase,

EPA seeks to ensure that emissions from vehicles

and engines match the specifications in a Certificate

of Conformity. These specification standards apply to

the vehicles and engines “for their useful life.” 42

U.S.C. § 7521(a)(1). The Certificates act as a license

for the manufacturer to produce and sell vehicles for

one model year in a manner consistent with the

terms of that certificate and the vehicle description.

In effect, they ensure that manufacturers design

compliant vehicles to conform to emission standards

throughout their useful life. As a result, obtaining a

Certificate of Conformity is a prerequisite under the

Clean Air Act for any engine or vehicle to enter U.S.

commerce.

EPA allows manufacturers some flexibility in

achieving emissions compliance during this design

phase. This flexibility permits manufacturers to meet

emissions requirements within their business model.

But this flexibility also requires greater attention

and specialized knowledge from EPA, as the same

regulation and emissions standards may allow for

different vehicles and engines to have different

emissions levels. Flexibility also implicates tradeoffs,

as designs for a particular engine to better protect

against one type of emissions might increase another.

EPA’s expertise helps balance these tradeoffs to

ensure that the best product for both consumer and

the environment reaches the market.

During the design and build phase for vehicles,

manufacturers will conduct initial vehicle emissions

and durability testing. This testing is extensive.

Testing procedures include Federal Test Procedure;

Highway

Fuel

Economy

Test;

High

Speed/Acceleration Cycle; Air Conditioning Test

Cycle; Cold CO Test; Evaporative Emissions Test;

On-Board Recovery Vapor Refueling Test; and

Running Loss Emissions Test.

Manufacturers then submit initial applications

for Certificates of Conformity, which EPA reviews. In

those applications, EPA requires manufacturers to

provide extensive information showing how the

vehicles and engines meet emissions requirements.

For example, EPA requires manufacturers to submit

information and data about:

•

the basic engine design and

distinguishable configurations;

list

•

an explanation of how the emission control

system operates;

•

a description of the test engine representing

the test group or engine family seeking

certification;

•

a description of each test group or engine

family;

•

a description of the test procedures and

equipment used to test the engine;

•

all emissions data for each test engine;

•

the intended useful life of the engine family

seeking certification and the emission

deterioration characteristics over that useful

life;

•

production volumes for the test group or

engine family;

•

the durability group—that is, the group of

vehicles and engines with similar emission

deterioration

and

emission

component

durability;

•

durability test procedures;

•

a description of vehicles used to show tailpipe

emissions and emission control component

durability;

•

test results, official certification levels, and

applicable emissions standards for each

vehicle and engine tested;

•

unconditional certification that all engines

comply with the Clean Air Act and other

regulatory requirements;

•

statement of compliance with applicable

emission standards for untested vehicles; and

•

for light-duty vehicles, information on their

emission control diagnostic systems, and their

evaporate and on-board recovery vapor

refueling.

Later, EPA conducts random and targeted

confirmatory testing after manufacturers submit

their applications. This program is more than just a

rubber stamp. EPA has found that manufacturers

take seriously the testing requirements, but EPA

regulators believe in a “trust but verify” approach

and thus conduct testing as well. Every year EPA

does fail some vehicles.

EPA’s compliance actions are not limited to

just testing of products. As part of its compliance

audits, EPA also conducts records inspections,

emission laboratory audits, test monitoring, and

assembly line audits. See 42 U.S.C. § 7542(b)

(authorizing these oversight activities). EPA then

reviews manufacturers’ submissions of final

applications for Certificates of Conformity.

After vehicles and engines come off the

production line, but before their initial sale, EPA

continues to conduct audits and other compliance

testing. EPA also issues Certificates of Conformity at

this stage.

To help facilitate EPA’s issuance of certificates,

it uses a comprehensive information system to collect

and verify data from manufacturers. This system is

known as “Engines and Vehicles – Compliance

Information System,” or EV-CIS for short. EV-CIS is

a significant investment that improves EPA’s ability

to oversee mobile source emissions compliance.

Rather than disparate systems of data collection for

various vehicle and engine sectors as used in past

years, EV-CIS encompasses many mobile source

industries by including modules for 14 industries,

and modules for light-duty

greenhouse gas programs.

and

heavy-duty

Manufacturers

can

efficiently

submit

information to EPA through EV-CIS, and the system

captures more than 11,000 data elements submitted

by manufacturers. The system has built-in validation

for some manufacturer data which helps prevent

errors in data entry. EV-CIS also permits EPA to

more easily share non-confidential data with

government partners, like the National Highway

Traffic Safety Administration.

B. Even after a new motor vehicle’s initial sale

to the public, EPA continues its extensive and

exclusive relationship with manufacturers to

regulate emissions during the useful life of vehicles.

For example, EPA and manufacturers often

identify defects and noncompliance with emissions

standards that manifest after the first sale of a new

motor vehicle. Passenger car and light truck

manufacturers must participate in the In-Use

Verification Program. Manufacturers recruit vehicles

owned by private citizens, screen them for obvious

tampering, and then test the vehicles at low mileage

(10,000 miles) and high mileage (50,000 miles). And

between 20,000 and 90,000 miles, EPA conducts inuse surveillance testing.

Beyond

just

conducting

these

tests,

manufacturers must also report their testing data to

EPA. Relatedly, manufacturers must report post-sale

emissions-related defects to EPA even if the defect

does not increase emission levels. 40 C.F.R.

85.1902(b), 85.1903(a). Manufacturers need not

report every defect, however. In accordance with its

specialized expertise, EPA has established reporting

requirements based on certain amounts of confirmed

defects that manifest for in-use vehicles. Id. Any

testing failure rates that surpass the regulatory

threshold will automatically require the manufacture

to conduct an In-Use Confirmatory Test Program on

the failed test group. Depending on the results of

that Test Program, manufacturers may implement a

recall or other remedies to correct the problem.

This testing has two important consequences.

First, EPA can work with manufacturers to fix

problems that arise during vehicles’ useful lives.

Second, EPA can work with manufacturers to

identify potential design issues for future model

years, so that EPA and manufacturers can target

vehicles that might need more attention in their

design and build phase.

Testing, however, is not the only type of postsale manufacturer activity that EPA oversees.

Title II also requires that every manufacturer

warrant “to the ultimate purchaser and each

subsequent purchaser” that “each new motor vehicle

and new motor vehicle engine” complies with EPA’s

emissions regulations. 42 U.S.C. § 7541(a)(1).

Congress empowered EPA to “prescribe regulations”

to “require” this warranty, as well as to “establish . . .

methods and procedures” to ensure “each vehicle and

engine . . . complies with the emission standards”

when those new motor vehicles are “in actual use

throughout . . . the warranty period.” Id. § 7541(b),

(b)(1), (b)(2). That warranty period extends beyond

the initial sale. Id. § 7541(i)(1).

Because the Clean Air Act requires

manufacturers to design and build vehicles and

engines that comply with emissions standards

throughout the vehicles’ useful life, recalls focus on

that compliance. So, an emissions-related defect will

not lead to a mandatory recall if it does not increase

emissions. But if the defect leads to excessive

pollution from in-use vehicles or engines, and the

manufacturer does not institute a voluntary recall,

EPA requires a recall.

Additionally, EPA can require a recall if it

determines that a substantial portion of in-use

vehicles within a category or class fail to meet

emission standards. 42 U.S.C. § 7541(c)(1). Those

determinations result from EPA’s review of extensive

data, including EPA and manufacturer test results.

EPA can require this recall-and-fix even if those

vehicles are otherwise being properly maintained and

used.

Every year, EPA oversees recalls affecting

millions of vehicles on America’s roads, with the

numbers of affected vehicles increasing over time.

For the 1979 calendar year, manufacturers recalled

1.5 million vehicles for emissions-related problems.

EPA, Emission Recall Report, Table I (June 1980). In

2008, it was more than 2.5 million vehicles. EPA,

2008 Progress Report, Vehicle, and Engine

Compliance Activities, at 31 (August 2010). And for

2014 through 2017, manufacturers recalled an

average of 6 million vehicles each year. EPA, 20142017 Progress Report: Vehicle & Engine Compliance

Activities, at 7 (2010).

EPA seldom needs to exercise its authority to

mandate recalls. See 40 C.F.R. 1068.505(f), 1068.535

(providing for a voluntary recall). EPA’s working

relationship with manufacturers often leads to

voluntarily recalls once EPA discovers potential

noncompliance with emissions standards.

Recalls require manufacturers to fix the

emission-related defect, which often demands postsale software updates to vehicle emission control

devices. But separate from the formal recall process,

manufacturers often change the design and

calibration of their engines and emission control

systems (including software updates) to correct

emission-related defects for in-use vehicles. These

field fixes are distinct from recalls, often reflect

changes made to vehicles in the design and build

phase, and do not require EPA pre-approval.

Nonetheless, because such field fixes do alter

emission devices or systems, EPA has long reviewed

fixes that result in “modification, removal or

replacement

emission-control

component.” EPA, Advisory Circular 2B, Field Fixes

Related to Emission Control-Related Components, at

1 (1975) (explaining that EPA views these field fixes

as not falling under the Act’s prohibition of

“remov[ing] or render[ing] inoperative any device or

element of design installed . . . in compliance with

[Clean Air Act] regulations” in 42 U.S.C.

§ 7522(a)(C)(A)).

To be sure, EPA does not view itself as having

absolute authority over all conduct affecting motor

vehicle emissions after the initial sale. EPA has

explained that states may enforce requirements that

“do not amount to a standard relating back to the

original design of the engine by the original engine

manufacturer.” Control of Air Pollution, 59 Fed. Reg.

31306-01, at 31313 (1994). But EPA’s exclusive

regulatory authority encompasses “[i]n-use testing

and recall programs [that] ensure compliance with

standards required to be met by manufacturers at

the time of certification of the engine,” because “these

in-use standards relate to the original manufacture

of the engine and place the burden of compliance

upon the manufacturer.” Id. at 31330 n.28

C. Meanwhile, Congress permitted CARB to

also have an extensive new vehicle and engine

certification program. CARB certification involves a

separate process from EPA, though it is much like

EPA’s compliance and regulatory procedures.

Without CARB certification, vehicles cannot be

sold legally in California, and violating the

certification requirement can lead to fines reaching

$37,500 per vehicle. Like EPA, CARB certifies

vehicles based on engine families, test groups (for

exhaust emissions), or evaporative emissions.

CARB will certify a vehicle only on a

manufacturer’s demonstration that its emissions

control systems are durable and comply with the

emissions standards for the vehicle’s useful life.

Manufacturers must also establish the vehicle’s

compliance with on-board diagnostics, antitampering, fuel tank fill-pipe and openings,

crankcase emissions, and other standards or

requirements that may apply to a vehicle.

Manufacturers must make this showing through

durability and certification testing.

CARB certifies vehicles grouped together by

engine families or test groups by executive order.

Since 1983, CARB has instituted an In-Use

Compliance Program to ensure that vehicles do not

exceed applicable emissions standards during their

useful life. Like EPA’s in-use programs, CARB relies

on private individuals providing their vehicles for

inspection and, if necessary, restoration of the engine

to the manufacturer’s specifications. The vehicles

then undergo emissions testing, observed by both

CARB and manufacturer representatives, identical to

the manufacturer’s testing done during the emissions

certification process. As with EPA testing, any test

group that exceeds applicable emissions standard

requires investigation and corrective action.

Corrective actions often require statewide recalls.

Unlike EPA, CARB also requires approval for any

field fix manufacturers implement for in-use vehicles.

CARB also participates in the In-Use

Verification Program that requires manufacturers to

annually test vehicles to monitor emissions at low

mileage (10,000 miles) and high mileage (50,000

miles) benchmarks.

III. The Ninth Circuit’s decision conflicts with

Congress’s determination to give EPA and

CARB the exclusive power to regulate and

enforce motor vehicle emissions.

EPA’s and CARB’s exclusive regulatory

authority extends beyond the point of sale of a new

motor vehicle. The Ninth Circuit failed to appreciate

that EPA’s and CARB’s authority and actions not

only extend throughout the useful life of a vehicle,

but also are critical for EPA and CARB to enforce the

Act’s new-vehicle emissions standards against

manufacturers. In short, to regulate new motor

vehicle emissions, it is just as important that EPA

and CARB have the exclusive authority to issue

Certificates of Compliance as it is that they have the

exclusive authority to oversee post-sale design

changes through recalls or field fixes.

Restricting the Act’s preemption provision to

the pre-sale period would be “an obvious

circumvention of the Clean Air Act and would defeat

the congressional purpose of preventing obstruction

to interstate commerce.” Allway Taxi, Inc. v. City of

New York, 340 F. Supp. 1120, 1124 (SDNY 1972),

aff’d, 468 F.2d 624 (2d Cir. 1972) (remarking that

this situation would allow any state or locality to

impermissibly “impose its own emission control

standards the moment after a new car is bought and

registered”).

EPA, CARB, DOJ, and motor vehicle

manufacturers have followed this regulatory

framework since the passage of Title II in 1970. In so

doing, EPA and CARB officials have worked with

industry to successfully oversee hundreds of

emissions system recalls, while DOJ has negotiated

many settlements for federal law violations—

settlements which, themselves, can require corrective

actions such as recalls. The regulators and the

industry did so in large part because of EPA’s and

CARB’s exclusive authority over motor vehicle

emissions.

Yet if the Ninth Circuit is correct, EPA and

CARB no longer have exclusive authority over these

motor vehicle emissions matters. See In re

Volkswagen, 959 F.3d at 1224 (observing there was

“nothing inherently problematic” about states and

localities imposing penalties for post-sale fixes).

Thousands of states and localities would now have a

say about whether these post-sale changes to

emission systems are permissible, as EPA might

determine, or whether they violate state antitampering laws, as a state or locality might conclude.

See, e.g., Environmental Protection Commission of

Hillsborough County v. Mercedes-Benz USA, LLC, No.

20-02238, Doc. 7 ¶¶ 64-68, 90 (M.D. Fla.) (alleging

that Mercedes-Benz “tamper[ed] with the emission

control systems of used Affected Vehicles registered

in Hillsborough County, through a program of newly

created field fixes and recall campaigns”).

Moreover, the Ninth Circuit’s decision

hampers, if not eliminates, EPA, CARB, and DOJ’s

ability to remedy violations of emissions standards

through settlements with vehicle manufacturers.

Such settlements often involve a manufacturer’s

agreement to perform remedial measures, fix affected

vehicles without charge to consumers, and sometimes

pay significant fines. Manufacturers enter into these

settlements, which can exceed several billion dollars

in total costs, in exchange for the certainty of a final

resolution with the exclusive regulatory authority. If

States and local governments can institute their own

enforcement after those agreements occur, or can

claim that corrective actions are themselves

violations of state or local law, manufacturers will be

far less willing to entertain settlements with EPA,

CARB, and DOJ. Instead, manufacturers will have

great incentive to fight allegations that their vehicles

emit excess emissions. This resistance will make

EPA, CARB, and DOJ’s job of protecting the health of

Americans and their environment far harder than in

the past.

Even if the Ninth Circuit’s view is correct, the

Court should still grant review to bring clarity to the

law and EPA’s and CARB’s role. Other courts across

the Nation have come to the opposite conclusion. See

State v. Volkswagen AG, 279 So.3d 1109 (Ala. 2018);

State ex rel. Slatery v. Volkswagen Aktiengesellschaft,

2019 WL 1220836 (Tenn. Ct. App. March 13, 2019);

State

rel.

Swanson

Volkswagen

Aktiengesellschaft, 2018 WL 6273103 (Minn. Ct. App.

Dec. 3, 2018).

This

difference

opinion

needlessly

complicates EPA’s work to protect the environment.

EPA has 10 regional offices across the country, which

implicate different rules between and within these

regions. Regions 9 and 10, for example, cover the

Ninth Circuit and would need to consider local

regulators under the Ninth Circuit’s decision below.

On the other hand, Region 4 would not need to

consider local regulators—at least for some states

like Tennessee and Alabama. But EPA would not

know whether it must consider local regulators in the

other states covered by Region 4. Courts have not

settled the issue in Florida, Georgia, Kentucky,

Mississippi, North Carolina, and South Carolina.

This Court’s pronouncement about the correct rule

will benefit EPA by ensuring a uniform, nationwide

approach.

Ultimately, Congress designed the Clean Air

Act to provide EPA and CARB exclusive authority to

regulate manufacturers’ new motor vehicle emissions

conduct both before and after new motor vehicles are

sold. The Ninth Circuit’s decision below allows state

and local regulators to suddenly have a role—

separate from Congress’s scheme under the Act—in

determining new motor vehicles’ emissions standards.

These competing and potentially conflicting

determinations of whether the law permits post-sale

changes to emission systems will frustrate EPA and

CARB’s ability to effectively regulate motor vehicle

emissions under Title II.

CONCLUSION

Amici ask this Court to grant certiorari.

Respectfully submitted,