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

No. 20-994

In the Supreme Court of the United States

VOLKSWAGEN GROUP OF AMERICA, INC., ET AL.,

PETITIONERS,

v.

THE ENVIRONMENTAL PROTECTION COMMISSION OF

HILLSBOROUGH COUNTY, FLORIDA, AND SALT LAKE

COUNTY, UTAH

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE ALLIANCE FOR

AUTOMOTIVE INNOVATION AND NATIONAL

AUTOMOBILE DEALERS ASSOCIATION

S. ZACHARY FAYNE

ARNOLD & PORTER

KAYE SCHOLER LLP

Three Embarcadero Center

10th Fl.

San Francisco, CA 94111

(415) 471-3114

JONATHAN S. MARTEL

ELISABETH S. THEODORE

Counsel of Record

SEAN A. MIRSKI

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

Elisabeth.Theodore@

arnoldporter.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

STATEMENT OF INTEREST ....................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...................................................................... 2

ARGUMENT ...................................................................... 5

I.

Manufacturers and Dealers Apply ModelWide Updates to Millions of Vehicles Every

Year, Subject to Comprehensive and

Effective Federal Regulation ................................ 5

A. Model-Wide Changes to In-Use

Vehicles Are Necessary and Common ............ 6

B. For

Decades,

EPA

Has

Comprehensively Regulated ModelWide Changes to Ensure Emissions

Compliance....................................................... 10

C. Evaluating

Whether

Model-Wide

Changes Are Unlawful Tampering

Requires Judgment and Significant

Expertise .......................................................... 16

II.

The Ninth Circuit’s Decision Destabilizes

the Congressionally Created Federal

Regulatory Regime, Threatens Chaos for

Manufacturers and Dealers, and Risks

Depriving Consumers of Essential Updates

................................................................................. 18

CONCLUSION ................................................................. 22

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Engine Mfrs. Ass’n v. EPA,

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

Sims v. Fla. Dep’t of Highway Safety and

Motor Vehicles,

862 F.2d 1449 (11th Cir. 1989) ...................................20-21

Statutes

42 U.S.C.

§ 7507.................................................................................... 3

§ 7521(a)(1) ........................................................................ 10

§ 7522(a)(1) ........................................................................ 10

§ 7522(a)(3)(A)................................................................... 13

§ 7522(a)(3)(B)................................................................... 13

§ 7525(a) ............................................................................. 10

§ 7525(a)(1) .................................................................. 10, 14

§ 7541(a)(1) ........................................................................ 10

§ 7541(b) ............................................................................. 11

§ 7541(b)(2) ........................................................................ 10

§ 7543(a) ......................................................................... 2, 20

§ 7543(b) ............................................................................... 3

Pub. L. No. 91-604, 84 Stat. 1676 (1970) ........................... 12

Regulations

40 C.F.R.

§ 85.1802(a) ........................................................................ 11

§ 85.1902(b)(2) ................................................................... 12

§ 85.1903............................................................................. 12

§ 85.1904(a) ........................................................................ 12

§ 85.1904(b) ........................................................................ 12

§ 86.1804-01 ....................................................................... 16

§ 86.1805-17 ....................................................................... 10

§ 86.1806-17 ................................................................... 9, 12

§ 86.1809-12 ....................................................................... 16

§ 86.1823-08 ....................................................................... 10

iii

Regulations—Continued

Page(s)

40 C.F.R.

§ 86.1824-08 ....................................................................... 10

§ 86.1825-08 ....................................................................... 10

§ 86.1842-01(b)(1).............................................................. 11

§ 86.1842-01(b)(2).............................................................. 11

§ 86.1844-01(f) ................................................................... 15

§ 86.1845-04 ................................................................... 9, 12

§ 86.1846-01 ....................................................................... 12

§ 1068.501........................................................................... 12

Other Authorities

EPA, Advisory Circular No. 2B, Field Fixes

Related to Emission Control-Related

Components (Mar. 17, 1975) ......................... 13, 14, 15, 17

EPA, Technical Report: History and

Description of the EPA Motor Vehicle Fuel

Economy Program (EPA-AA-CPSB-82-02)

(Sept. 1982) .......................................................................... 6

EPA, 2014–2017 Progress Report: Vehicle &

Engine Compliance Activities (Apr. 2019) .................... 9

Hannu Jääskeläinen & Magdi K. Khair,

Exhaust Gas Recirculation ........................................ 8, 16

Letter, Automobile Mfrs. Ass’n to Elliot L.

Richardson, Aug. 27, 1970, reprinted in 1

CAA Legislative History ................................................. 21

W. Addy Majewski, Diesel Catalysts ................................. 8

1

STATEMENT OF INTEREST 1

The Alliance for Automotive Innovation (“Auto

Innovators”) is a nonprofit trade association representing

the manufacturers and suppliers that produce nearly 99

percent of all cars and light-duty trucks sold in the United

States. Auto Innovators was formed by the combination

of the nation’s two largest automobile associations, the

Association of Global Automakers and the Alliance of

Automobile Manufacturers. 2 Its mission is to protect and

promote the legal and policy interests of its members that

design, manufacture, and sell motor vehicles throughout

the United States. Auto Innovators’ members rely on the

regulatory certainty provided by the Clean Air Act to

implement routine, model-wide updates to vehicles in

production and in the field. The decision below permits

every state and locality in the United States to regulate

and penalize those changes, potentially in a way that

conflicts with the judgment of the U.S. Environmental

Protection Agency (“EPA”) about whether a change is

permissible or constitutes prohibited tampering with

emission controls. Left intact, the decision will jeopardize

auto manufacturers’ ability to make these essential

updates and upset the post-sale regulatory regime that

has existed for decades.

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other than

amici, their members, or their counsel made a monetary contribution

to its preparation or submission. Counsel of record for both parties

received notice at least 10 days prior to the due date of the intention

of amici to file this brief and consented to its filing.

2

Auto Innovators’ automaker members include BMW Group, Ferrari

North America, Ford Motor Co., General Motors Co., American

Honda Motor Co., Hyundai Motor America, Isuzu Motors America,

Jaguar Land Rover, Karma Automotive, Kia Motors America,

Maserati North America, Mazda, Mercedes-Benz USA, Mitsubishi

Motors, Nissan North America, Inc., Porsche Cars N.A., Stellantis,

Subaru of America, Suzuki Motor of America, Toyota Motor North

America, Volkswagen Group of America, and Volvo Car USA.

1

2

The National Automobile Dealers Association

(“NADA”) represents nearly 16,500 new-car and -truck

dealers and a total of nearly 32,500 franchises. Founded

in 1917, NADA focuses on two main goals: first,

promoting and enhancing the franchise system and

effectively communicating dealer views and concerns to

all branches of the federal government, to manufacturers,

and to the public; and second, strengthening the financial

position of members as retailers. The Ninth Circuit’s

decision interferes with both of those core objectives by

threatening to impose “staggering liability” on dealers for

routine post-sale updates, Pet. App. 45a, and by

potentially chilling dealers’ ability to serve the needs of

their customers.

The Ninth Circuit’s decision is

particularly injurious to the majority of dealers who are

small businesses, and who therefore lack the resources to

navigate the patchwork of conflicting federal, state, and

local regulation that the decision is poised to create.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The decision below threatens to transform a uniform

regulatory regime governing post-sale updates to millions

of vehicles every year into a confusing and chaotic freefor-all. Absent this Court’s review, the decision will have

dramatic and adverse implications for the automotive

industry—and, in turn, the vehicle-buying public. The

decision will make it difficult (and in some cases,

impossible) for the industry to implement essential

updates that improve the performance and emissions of

in-use vehicles. This Court’s intervention is critical.

Each year, dozens of manufacturers design and

thousands of dealers implement millions of physical

changes and software updates to vehicles in the field. As

the district court correctly recognized, the Clean Air Act

(“CAA”) gives EPA exclusive authority to regulate these

updates. The Act broadly preempts all state and local

regulation “relating to the control of emissions from new

motor vehicles,” 42 U.S.C. § 7543(a), and establishes a

3

comprehensive regulatory regime to govern model-wide

changes to vehicles before and after they are sold. 3 On

appeal, the Ninth Circuit correctly concluded that the Act

preempts state and local tampering claims arising from

pre-sale conduct. Pet. App. 2a. But it then held, contrary

to the decisions of multiple state appellate courts, that the

Act does not preempt similar efforts to regulate post-sale,

model-wide changes. Pet. App. 2a-3a; see Pet. 14-16. It

based that mistaken conclusion on the misconception that

such changes are “rare”; that Congress did not anticipate

the possibility of post-sale tampering; and that it is easy

to determine which changes are tampering and which are

not. Pet. App. 45a, see Pet. App. 37a n.22.

The Ninth Circuit’s decision upends the orderly,

congressionally mandated regime that has governed

manufacturers’ and dealers’ post-sale conduct for

decades. By permitting every state and local government

to apply its own prohibition on tampering to

manufacturers’ post-sale changes, the decision portends

regulatory chaos. Manufacturers routinely update the

software design and calibration of their engines and

emission control technology, pursuant to a longstanding

and well-understood process with EPA. These post-sale

changes affect millions of cars each year, and provide

important benefits for consumers and for the

environment. The changes often resolve problems

identified in the field and improve vehicles’ overall

performance, reliability, driveability, safety, and emission

control.

Significantly, post-sale changes often involve complex

technical justifications and tradeoffs—for example,

reducing some types of emissions while increasing others,

or accepting emissions increases under certain defined

operating conditions to redress the potential for engine or

The CAA also permits California to promulgate its own emission

standards with EPA approval. Other states may adopt standards

identical to California’s. 42 U.S.C. §§ 7507, 7543(b).

3

4

vehicle damage. Contrary to the Ninth Circuit’s apparent

assumption, it is often complicated to determine whether

a given post-sale design change or update amounts to

“tampering.” Although one regulator might consider a

post-sale change to an emission control or system to be an

improvement, or to be justified to protect against damage

or accident, another regulator might disagree and

conclude that it constitutes prohibited emissions

“tampering.”

Subjecting automobile manufacturers and dealers to

thousands of different regulators is untenable. If

manufacturers and dealers can no longer rely on EPA’s

determination when making post-sale, model-wide

changes that impact emission controls or systems, they

will risk massive liability for every update. The effect

would be to discourage all post-sale changes, including

those that benefit consumers and the environment. This

will significantly hamper EPA’s congressionally

mandated role of supervising post-sale emissions

changes.

To be clear, amici do not suggest that manufacturers

or dealers should be able to evade responsibility for

unlawful emissions tampering. Instead, amici write to

underscore that Congress has already legislated a

comprehensive and orderly process for federal regulatory

review and approval of design changes introduced in the

field, and for enforcing prohibitions on tampering. That

sensible and orderly nationwide framework would be

disrupted if states and localities could penalize (and, by

extension, regulate on a day-to-day basis) model-wide

changes to post-sale vehicles. By holding otherwise, the

Ninth Circuit’s decision will inevitably produce “an

anarchic patchwork of federal and state regulatory

programs, . . . creat[ing] nightmares” for everyone.

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

1996) (internal quotation marks and citation omitted).

The decision thus not only puts at risk the quality of the

air and the health and welfare of the public; it also

5

threatens to harm the health of the auto industry, which

is responsible for nearly ten million jobs in the United

States and is critical to the nation’s economy.

This case accordingly warrants this Court’s

immediate review, not only to clarify an important

question of federal law that has divided courts across the

country, but also to avoid the adverse consequences that

will likely flow from the Ninth Circuit’s erroneous

decision.

ARGUMENT

I. Manufacturers and Dealers Apply Model-Wide

Updates to Millions of Vehicles Every Year,

Subject to Comprehensive and Effective Federal

Regulation

Automobile manufacturers and dealers implement

model-wide updates that potentially impact emissions

from millions of vehicles every year, and these updates

are often essential to vehicle performance and to

protecting the environment. Numerous provisions in the

CAA express Congress’s clear intent to give EPA

exclusive authority to regulate these changes to post-sale

vehicles over the course of each vehicle’s “useful life.” To

obtain approval for these changes and to ensure that they

do not constitute prohibited emissions tampering,

manufacturers work closely with EPA, which carefully

weighs complex trade-offs between emissions of different

pollutants, as well as the resulting performance and safety

impacts. And, for decades, manufacturers and dealers

have relied on EPA’s exclusive regulatory authority to

ensure that they can make updates without fear of being

subject to limitless liability from thousands of

independent regulators with competing priorities. That is

what Congress intended. The Ninth Circuit reached a

contrary conclusion based on multiple misunderstandings

concerning how model-wide updates operate in practice

and their prevalence, and based on a mistaken assumption

that state and local regulators will not reach conflicting

6

determinations

tampering.

about

what

constitutes

unlawful

A. Model-Wide Changes to In-Use Vehicles Are

Necessary and Common

1. Manufacturers and dealers routinely need to

modify the emission controls or systems of vehicles,

including software controls, on a model-wide basis in

order to address performance- or emission-related

problems identified through customer experience once

vehicles are operating in the field.

Typically, a

manufacturer first implements the model-wide change at

the production stage—i.e., to the vehicles that have not

yet been produced and sold. See EPA, Technical Report:

History and Description of the EPA Motor Vehicle Fuel

Economy Program (EPA-AA-CPSB-82-02), at 11 (Sept.

1982) (recognizing that “[m]ost manufacturers make

changes to their product lines during the model year,”

which may include “design or specification changes to

existing models”). These changes are commonly referred

to as “running changes” and must be submitted to EPA

for approval.

Manufacturers, usually working through dealers,

then typically seek to make a corresponding change to

vehicles of the same model type that were already

produced—i.e., post-sale vehicles. These changes are

commonly referred to as “field fixes.” By making such

changes, manufacturers preserve consistency across a

vehicle model population and ensure that all vehicles of

the same model type receive the benefits of the design

change regardless of when they were produced. Indeed,

manufacturers typically maintain a single “latest and

greatest” software package for a vehicle model, so that

when a vehicle in the field comes in to a dealer, the vehicle

is updated to the latest software version. Similarly,

manufacturers may seek to implement the design change

on vehicles from prior model years that use the same or

similar technologies. Such changes also qualify as “field

fixes.”

7

2. Significantly, over time it has become increasingly

more common for manufacturers and dealers to

implement model-wide changes, and those changes have

become more critical. That is so for two principal reasons.

First, as emission standards have become more

stringent, emission controls, systems, and software have

become more complex. Most engines today use a

combination of various emission control systems, which

are controlled by software that is calibrated precisely for

that vehicle’s attributes to respond to different operating

conditions (such as engine speed and load, altitude, and

temperature).

For example, most modern diesel engines control

emissions through some combination of (a) electronic

management of fuel injection into the combustion

chamber; (b) exhaust gas recirculation (“EGR”), which

recirculates a portion of the engine’s exhaust back into the

intake air and combustion chamber to reduce emissions of

nitrogen oxides (“NOx”) from the engine; (c) a diesel

particulate filter that is electronically managed through

periodic “regeneration cycles”; (d) an oxidation catalyst

exhaust aftertreatment system to reduce carbon

monoxide and hydrocarbon emissions; and (e) an

electronically-managed selective catalytic reduction

(“SCR”) exhaust aftertreatment system, which injects a

urea solution onto a catalyst bed to convert NOx into inert

nitrogen, water vapor, and small amounts of carbon

dioxide (“CO2”).

Each of these systems has grown in complexity to

match increasingly stringent emission standards. For

instance, EGR emissions control systems were first

introduced on diesel passenger cars in the 1990s; by the

early 2000s, they were replaced by electronicallycontrolled “cooled” EGR systems as new emission

8

standards created higher demands on EGR usage. 4

Likewise, SCR systems were introduced on diesel

passenger cars in the late 2000s and early 2010s to

facilitate compliance with increasingly stringent emission

standards for NOx. 5

Further, each of these controls or systems has

limitations; not all of them are effective in all modes of

vehicle operation. As a result, they must be carefully

managed in conjunction with each other to maintain

compliance with emissions standards. EGR technology,

for example, reduces NOx emissions but increases

particulates (soot), fuel consumption (and thus CO2

emissions), and engine wear. Similarly, SCR technology

is less effective until the catalyst temperature reaches an

optimum target zone, and it depends on injecting a precise

amount of urea onto the catalyst at precise times in

response to different operating conditions. SCR systems

also are prone to damage under certain operating

conditions and must be managed accordingly.

Manufacturers carefully calibrate the software

controls for these devices and may adjust the calibrations

throughout the model year to optimize often competing

variables. Unsurprisingly, the increased computerization

of emission controls has only added to the need for

software updates to optimize emission control calibration

and design.

Second, EPA has adopted monitoring and emissions

testing compliance requirements for in-use vehicles that

make it easier to detect—and for manufacturers to

correct—issues in the field. For example, starting in the

1990s, EPA required onboard diagnostic software

See, e.g., Hannu Jääskeläinen & Magdi K. Khair, Exhaust Gas

Recirculation, https://www.dieselnet.com/tech/engine_egr.php (last

visited Feb. 16, 2021).

5

See, e.g., W. Addy Majewski, Diesel Catalysts, https://www.

dieselnet.com/tech/cat_diesel.php (last visited Feb. 16, 2021).

4

9

systems to monitor and generate feedback on the in-use

performance of emission control components. See 40

C.F.R. § 86.1806-17. By providing this feedback, onboard

diagnostic systems help identify issues involving actual

operating conditions that customers may not detect, yet

would be addressed by design improvements. Some of

these issues can arise years after the vehicle has been

sold, meaning that some improvements will be

implemented model-wide only on in-use vehicles.

EPA has also established “[m]anufacturer in-use

verification testing requirements,” which require

manufacturers to evaluate whether in-use vehicles are

complying with emission standards. 40 C.F.R. § 86.184504. Like onboard diagnostic systems, these in-use

emissions testing requirements can help manufacturers

detect issues involving actual operating conditions that

may require model-wide improvements.

As a result of these developments, model-wide

changes to post-sale vehicles are more common today

than ever, and that trend will likely only continue. On

average, for example, over six million vehicles receive

post-sale updates every year through EPA’s recall

program alone. 6 And the recall program accounts for only

a fraction of EPA-vetted post-sale updates. One member

of amicus Auto Innovators estimates that new or

refreshed models require ten to twenty updates per model

annually. Even older models require about five updates

per year. Another member estimates that models

average approximately one emissions-related update per

year for the first seven years of a vehicle’s life, with most

changes occurring in the first three years.

6

EPA, 2014–2017 Progress Report: Vehicle & Engine Compliance

Activities 7 (Apr. 2019), https://tinyurl.com/EPARecallReport (2014–

2017 period).

10

B. For Decades, EPA Has Comprehensively

Regulated Model-Wide Changes to Ensure

Emissions Compliance

Congress directed EPA in the CAA to prescribe the

emission standards that manufacturers must design

motor vehicles to meet not only at the point of initial sale,

but also for their entire “useful life.” 42 U.S.C.

§ 7521(a)(1). The resulting regulatory scheme operates

both pre- and post-sale.

1. First, before launch, EPA requires testing of “any

new motor vehicle or new motor vehicle engine submitted

by a manufacturer to determine whether such vehicle or

engine conforms with [emissions] regulations.” Id.

§ 7525(a)(1). This includes “durability” testing that

requires manufacturers to “age” pre-launch development

vehicles under specified mileage accumulation protocols

and then test the vehicles to demonstrate that they will

comply throughout their regulatory useful lives, generally

ten years or 120,000 miles (for light-duty vehicles). 7

Manufacturers interact extensively with EPA technical

staff throughout this testing process to provide

information and address concerns. Once all goes well, a

manufacturer then applies for and obtains a “certificate of

conformity” that certifies that a particular vehicle

configuration will comply with applicable emissions

standards for its useful life. Id. §§ 7522(a)(1), 7525(a),

7541(a)(1) & (b)(2). Only after EPA issues that certificate

of conformity can manufacturers introduce a new vehicle

into commerce.

Further, if a manufacturer seeks to make a running

change to a certified configuration of a new model-year

vehicle, it must notify EPA.

Specifically, the

See 40 C.F.R. §§ 86.1823-08 (durability for exhaust emissions),

86.1824-08 (durability for evaporative emissions), 86.1825-08

(durability for refueling emissions), 86.1805-17 (regulatory useful

life).

7

11

manufacturer must notify EPA of “any change or addition

in production vehicles which creates a new vehicle

configuration within the car lines covered in a certified

test group, giving a full description of the change.” 40

C.F.R. § 86.1842-01(b)(1).

EPA can then require

additional testing to ensure that the updated vehicles will

continue to meet applicable emission standards

throughout their useful life. Id. § 86.1842-01(b)(2). In

addition, the manufacturer must submit updates to its

applications for certificates of conformity to reflect any

running changes. Id. § 86.1842-01(b)(1).

2. But EPA’s statutory duty to regulate motor

vehicle emissions does not stop after new vehicles are

sold; rather, it extends to regulation of a vehicle for its

“useful life.” As rigorous as pre-production emissions and

durability testing is, manufacturers cannot account for

every possible driving condition that a vehicle will face in

the real world; as discussed above, updates are often

necessary. Thus, EPA continues to ensure that vehicles

remain in compliance with the emission standards for

their full regulatory useful lives, and the agency works

closely with manufacturers to achieve that goal.

EPA relies on several authorities to regulate the

emissions of in-use vehicles. Its hallmark authority is to

investigate and order a recall whenever “a substantial

number” of a class or category of vehicles do not conform

to applicable CAA requirements. Id. § 85.1802(a). One of

those requirements is that in-use vehicles conform to the

emissions-related declarations that are submitted as part

of an application for a certificate of conformity, including

those pertaining to both software and hardware.

The CAA also requires EPA to “establish . . . methods

and procedures” to test “whether, when in actual use,”

vehicles “compl[y] with . . . emission standards.” 42 U.S.C.

§ 7541(b). Like EPA’s pre-sale testing requirements

designed to ensure that vehicles are compliant when sold,

these post-sale testing requirements help ensure that

vehicle emissions are compliant throughout their full

12

useful life. See 40 C.F.R. §§ 86.1845-04 (EPA’s In-Use

Verification Program); 86.1846-01 (In-Use Confirmatory

Program).

In addition, EPA’s onboard diagnostic

requirements help alert unknowing drivers to

malfunctioning emission-related components, leading

them to seek a fix long before formal EPA testing would

reveal post-sale problems. Id. § 86.1806-17; see Part I.A,

supra.

EPA also requires manufacturers to monitor,

investigate, and report “[e]mission-related defect[s]” in

post-sale vehicles, including in defective components and

software. 40 C.F.R. §§ 85.1902(b)(2), 85.1903, 1068.501.

EPA may decide to recall these vehicles to remedy the

defect. See id. § 1068.501.

Even though EPA has the authority to order a

mandatory recall, manufacturers undertake the vast

majority of recalls on a voluntary basis. EPA will strictly

supervise even these voluntary recalls, however; for

example, a manufacturer must submit a plan for any

voluntary recall, including any modifications to be made

to the vehicles at issue. See id. § 85.1904(a). The

manufacturer will also submit quarterly progress reports

as the recall progresses, so that EPA may monitor the

process and order additional corrective action as

necessary. Id. § 85.1904(a)-(b).

Finally, and especially relevant here, all of these

authorities and tools enable EPA to enforce the CAA’s

tampering prohibition. The Ninth Circuit assumed that

Congress “could not have . . . anticipated” manufacturers’

“intentional tampering with post-sale vehicles.” Pet. App.

45a. But that is incorrect. As enacted in 1970, the CAA’s

tampering prohibition was targeted specifically at

manufacturers’ (and dealers’) post-sale conduct; it made

it unlawful “for any manufacturer or dealer knowingly to

remove or render inoperative” any emission control

device or design “after such sale or delivery to the

ultimate purchaser.” Pub. L. No. 91-604, § 7(a)(3), 84 Stat.

1676, 1693 (1970). Congress was thus not only well aware

13

that manufacturers (and dealers) would make post-sale

changes, but it also limited such changes to prohibit

unlawful tampering. Then, as today, Congress gave EPA

the exclusive responsibility to enforce that prohibition. 8

EPA also recognized, however, that as described

above, the line between legitimate updates to a vehicle

and those that constitute “tampering” might not always

be clear. See Part I.C, infra. Indeed, some of these

updates are required by EPA. The line is especially

blurry for field fixes, which EPA defines as “[a]

modification, removal or replacement of an emissioncontrol related component by a manufacturer or dealer,

or revision by a manufacturer for implementation by

dealers to specifications or maintenance practices for

emission-control related components on vehicles that

have left the assembly line.” EPA, Advisory Circular No.

2B, Field Fixes Related to Emission Control-Related

Components, at 1 (Mar. 17, 1975) (“Field Fix Guidance”) .

In 1975, in response to concerns that legitimate postsale updates could improperly fall afoul of the tampering

prohibition, EPA issued the Field Fix Guidance. The

Guidance sets forth a procedure “by which manufacturers

can assure themselves that EPA will not consider a field

fix to be a violation of Section 203(a)(3) of the Act.” Field

Fix Guidance at 1. In the Guidance, EPA established that

“a change to a certified vehicle . . . that is identical in all

respects to a running change that is approved for

incorporation in new vehicles by the manufacturer” does

not constitute prohibited tampering. Id. at 2-3. In other

words, it is per se lawful for a manufacturer to update inuse vehicles to conform to the latest design of vehicles

Today, the provision applies more broadly to “any person” who

knowingly “remove[s] or render[s] inoperative” any emission control

device or design “after [its] sale and delivery to the ultimate

purchaser.” 42 U.S.C. § 7522(a)(3)(A); id. § 7522(a)(3)(B) (making it

unlawful for any person to manufacture, sell, or install a defeat

device).

8

14

from the same model year that are still on the production

line. Since all changes to vehicles on the production line

must be submitted to EPA, that necessarily means that

all field fixes to same-model-year vehicles are overseen by

EPA.

EPA also addressed field fixes to prior-model-year

vehicles that are no longer in production. Under the CAA,

manufacturers receive a certificate of conformity only for

a single model year of a vehicle, and they must obtain a

new certificate of conformity for each succeeding model

year even if the vehicle configuration has not changed. 42

U.S.C. § 7525(a)(1). Even where changes are made to a

vehicle configuration from one model year to the next,

emission-control technologies most often carry over

across multiple model years. The upshot is that the

emission control technologies used by vehicles in

production are often very similar (if not identical) to the

technologies used by prior-model-year vehicles that are

no longer in production. In such cases, it is common

industry practice for a manufacturer to take any

improvements in the emissions controls, systems, or

software on its vehicles in current production and to

implement those changes to prior-model-year, in-use

vehicles through field fixes. Indeed, it is not uncommon

for a manufacturer to engineer improvements over a

period of time, such that vehicles that have already left

the production line in the prior model year also need to be

modified. See Field Fix Guidance at 2-3 (contemplating a

field fix that implements “a change to a certified vehicle

that is not identical in all respects to, but provides for

essentially the same purpose as, a running change . . . that

would have been incorporated if the vehicle were still in

production”).

EPA established in the Field Fix Guidance that a

manufacturer does not violate the tampering prohibition

if it implements this type of prior-model-year field fix

after receiving EPA pre-approval. See id. Specifically,

the manufacturer must present EPA with an explanation

15

and data demonstrating that the vehicle in its changed

configuration will continue to comply with EPA’s

emissions regulations. This mirrors the requirements

that apply to a “running change” for new vehicles, but it

simply relates only to vehicles already in the field. See 40

C.F.R. § 86.1844-01(f) (requiring that running change

submissions include “[t]he effect the change will have on

emissions” and “[a]ny test data that is determined to be

necessary to demonstrate compliance with applicable

emission standards”). If a manufacturer chooses not to

seek EPA pre-approval for a prior-model-year field fix,

then EPA reserves the right to “investigate” the matter

further as warranted. Field Fix Guidance at 3. EPA may

pursue enforcement if it concludes that the manufacturer

engaged in tampering. In practice, manufacturers usually

submit these types of field fixes for pre-approval in order

to avoid the regulatory risk.

In short, EPA is extensively involved in the approval

and regulation of not only pre-sale, but also post-sale

updates to emissions control technology.

If a

manufacturer undertakes a recall, that process either will

be instigated by EPA itself or will require the

manufacturer to update EPA through a series of reports.

If a manufacturer seeks to incorporate a change into

same-model-year vehicles that are still in production, that

running change will be submitted to EPA and

incorporated into the applications for certificates of

conformity. If a manufacturer seeks to incorporate a

change to prior-model-year vehicles, EPA provides a path

for pre-approval that, in practice, most manufacturers will

take. One way or another, then, EPA oversees the

implementation of post-sale updates, with processes

available to manufacturers to minimize the risk of

inadvertently violating the CAA’s tampering prohibition.

And if approval is not sought and obtained, EPA retains

authority to investigate, order an appropriate fix, and

penalize conduct it determines constitutes tampering.

16

C. Evaluating Whether Model-Wide Changes Are

Unlawful Tampering Requires Judgment and

Significant Expertise

Even where it is not required, manufacturers

regularly wait for EPA’s approval for post-sale updates

because it is not always clear where the line between a

lawful update and unlawful tampering lies. Contrary to

the Ninth Circuit’s suggestion (Pet. App. 37a n.22),

evaluating whether a particular post-sale change

constitutes “tampering” requires judgment and

significant expertise, and different regulators could reach

different conclusions.

For example, EPA regulations allow designs that

reduce the effectiveness of a vehicle’s emission controls

where necessary to protect the vehicle against damage or

accident in particular field conditions, such as high

altitude, hot or cold conditions, or a sudden increase in

engine load. See, e.g., 40 C.F.R. §§ 86.1804-01, 86.1809-12.

Evaluating such justifications is often technically

complex, requiring balancing of competing physics-based

and engineering considerations. Manufacturers work

closely with EPA to balance those considerations and

ensure that the regulations are applied consistently and

that updates comply with the regulations.

Further, many in-use changes to emission control

software may increase emissions of one pollutant while

decreasing emissions of others. As just one example,

measures to reduce a diesel vehicle’s emissions of NOx—

which is formed from high-temperature combustion—

result in less-efficient combustion and increased fuel

consumption and thus tend to increase emissions of CO2

and particulates. 9

See, e.g., Hannu Jääskeläinen & Magdi K. Khair, Exhaust Gas

Recirculation, https://www.dieselnet.com/tech/engine_egr.php (last

visited Feb. 16, 2021).

9

17

Other changes may affect vehicle emissions in a way

that would nevertheless normally be approved by EPA.

For example, a manufacturer may determine that a

calibration change is needed to respond to a complaint

about a vehicle’s driveability. Ordinarily, EPA would

approve such a change so long as any resulting increase in

emissions fell within the emission standard to which the

vehicle was certified. EPA would also routinely approve

the change if it realized that any apparent increase in

criteria emissions was the result of normal test-to-test

variation (for example, due to a different test lab or

different driver conducting the test). Other regulators,

however, may not have the experience to properly

interpret the results of these new tests.

Similarly, EPA routinely approves changes that may

slightly decrease fuel economy in a way that increases

greenhouse gases. One example might be a change to a

vehicle’s transmissions shift schedule to improve

driveability. But other, less experienced regulators may

consider any increase in greenhouse gas emissions, no

matter how small, as tampering.

EPA thus plays a critical role in collaborating with

manufacturers to differentiate justified design changes

that comply with emission regulations from those that

risk being labeled unlawful “tampering.” EPA issued the

Field Fix Guidance precisely in order to “advise

manufacturers on the issue of how [the tampering

prohibition] potentially affects field fixes, and to set forth

a procedure by which manufacturers can assure

themselves that EPA will not consider a field fix to be a

violation” of that provision. Field Fix Guidance at 1. This

oversight process provides needed certainty and

uniformity for manufacturers making updates to vehicles

before and after they are sold to ultimate purchasers.

18

II. The Ninth Circuit’s Decision Destabilizes the

Congressionally Created Federal Regulatory

Regime, Threatens Chaos for Manufacturers and

Dealers, and Risks Depriving Consumers of

Essential Updates

As Congress intended in the CAA, EPA’s exclusive,

nationwide jurisdiction over manufacturers’ and dealers’

post-sale changes is critical to assuring a uniform,

functioning

regulatory

system

that

enables

manufacturers and dealers to make essential

improvements to their vehicles. EPA has substantial

information about vehicle emissions and the nuances of

vehicle powertrains and emission control technology,

stemming from its deep involvement in the testing,

monitoring, and certification processes across the

industry for the past fifty years. And EPA has the

technical expertise necessary to evaluate post-sale,

model-wide changes in a manner that balances

performance, emissions, and other considerations.

Allowing thousands of state, county, and local

regulators—who lack such expertise—to insert

themselves into this process would thwart the

congressionally created federal regulatory process;

expose manufacturers and dealers to enormous

uncertainty, potentially significant regulatory liability,

and unfounded consumer litigation; and delay or prevent

essential updates from reaching consumers.

The Ninth Circuit’s decision forces manufacturers

and dealers either to take a significant risk every time

they make a change to a vehicle model that is already in

the marketplace, or not to provide the essential update.

Even where such a change has EPA approval, it could

draw scrutiny, second-guessing, inconsistent oversight,

and potential liability from any one of thousands of state

and local regulators. It is simply not possible to seek

approval from every potential regulator in the United

States for each of the numerous post-sale updates each

manufacturer makes every year. And even if seeking

19

such approvals were possible, if even one regulator

considered an in-use change to be unlawful tampering, the

manufacturer would have to redesign the change to

address that regulator’s concerns for that discrete

jurisdiction and then restart the process of obtaining

approval from EPA and other jurisdictions. If two local

or state regulators had differing views about an update,

manufacturers and dealers might then have to treat

vehicles of the same model year differently in different

jurisdictions, depending on whether the jurisdiction has

approved or disapproved the proposed in-use change.

That is both impractical and contrary to Congress’s intent

to avoid subjecting manufacturers and dealers to

requirements that vary across States. And if (as is likely)

manufacturers will be unable to obtain pre-change

responses from every one of the thousands of county and

local regulators, they will need to balance the benefits of

an EPA-approved update against the risk of tampering

lawsuits from a state or local regulator and from

consumers taking advantage of the multitude of different

regulations or regulatory interpretations.

The Ninth Circuit’s decision also places dealers—the

entities on the front lines of actually making the changes

to vehicles in the field—in an especially difficult bind. The

franchise agreements between dealers and their

manufacturers specifically require that dealers conduct

necessary field changes and updates, along with emissions

warranty and recall work. Dealers are also regulated by

EPA, are subject to the CAA’s anti-tampering provisions,

and take those responsibilities seriously. But the

majority of franchised automobile dealers in the United

State are small businesses. The typical member of amicus

NADA has around 60 employees, and 35% sell fewer than

300 new cars a year. Requiring franchised dealers to

second-guess the field fix instructions of their

manufacturers would impose an untenable burden—they

simply lack the technical and legal expertise to determine

whether an update complies with multiple overlapping

and potentially conflicting sets of regulations. Instead,

20

dealers have always and must continue to rely as a matter

of contract and expertise on the directions provided by

manufacturers. For example, a dealer has no ability to

second-guess whether a software update provided by a

manufacturer—typically contained in proprietary code—

qualifies as “tampering” or not. Prior to the Ninth

Circuit’s decision, if a manufacturer advised a dealer that

the update was approved by the EPA, the dealer could

confidently implement that update. But the decision

below means no dealer can ever implement an update

without risking “staggering” liability from local

regulators. Pet. App. 45a.

Customers

could

also

suffer.

Dealers,

understandably concerned about the risks involved in

implementing a post-sale update, conceivably might

choose not to implement the update, thereby depriving

the customer of its benefits. Some of those benefits can

be important, especially when they relate to vehicle

performance. A customer seeking those benefits may

turn to an independent entity, who might not realize that

there is a software fix to address the problem and might

make unsanctioned and damaging changes to the vehicle.

The automobile industry’s grave concern about the

risks and burdens of multiple, potentially conflicting

regulatory schemes is not theoretical. As the petition

notes, the evidence indicates that local and state

authorities are already moving to regulate post-sale,

model-wide updates. See Pet. 20-22. Yet the Ninth

Circuit dismissed these concerns as “inapplicable”

because local anti-tampering rules are purportedly

“identical” to the federal tampering prohibition. Pet. App.

37a n.22.

That reasoning is flawed. For one thing, Section

209(a) prohibits state and local governments from

enforcing “any standard relating to the control of

emissions from new motor vehicles,” 42 U.S.C. § 7543(a)

(emphasis added), even “identical” standards. See Sims

v. Fla. Dep’t of Highway Safety and Motor Vehicles, 862

21

F.2d 1449, 1455 (11th Cir. 1989) (CAA preempts state

regulation even if it “does not establish new or conflicting

emission standards”). For another, the problem is that

the word “tampering” does not define itself. The Ninth

Circuit’s reasoning erroneously assumes that there will be

an easily achieved consensus among regulators about

whether a particular change constitutes tampering. As

explained, that is simply not true, including for all the

reasons set forth in Part I.C. If every state and local

regulator were free to evaluate in-use changes under their

own criteria, it is a foregone conclusion that some would

reach different conclusions from EPA. That is especially

so given the immense, per-vehicle, per-day penalties at

stake, which could give local regulators significant

incentives to recast an update as a tampering violation.

In short, allowing state and local governments to

regulate model-wide changes to in-use vehicles would

create a hopelessly unmanageable patchwork of

regulation. The automobile manufacturing industry

raised a similar concern in its comments on the 1970 CAA

amendments. There, the Automobile Manufacturers

Association explained that “[t]he possibility of hundreds

of different [emission] standards” was “wholly unrealistic

from an economic standpoint” and would give rise to “a

myriad of problems.” Letter, Automobile Mfrs. Ass’n to

Elliot L. Richardson, Aug. 27, 1970, reprinted in 1 CAA

Legislative History at 724-25. The CAA addresses this

concern by granting EPA exclusive authority to regulate

manufacturers and dealers’ model-wide emission conduct

and by broadly preempting state and local attempts to

regulate in this sphere. Fifty years later, as the

complexity of emission regulations and emission control

technology has increased significantly, the concern

carries even greater weight. Allowing state and local

regulators to weigh in on which design changes and

software updates to in-use vehicles constitute tampering

would destabilize EPA’s regulatory scheme and inject

unwarranted and entirely unnecessary confusion into the

orderly process that Congress intended.

22

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

S. ZACHARY FAYNE

ARNOLD & PORTER

KAYE SCHOLER LLP

Three Embarcadero Center

10th Fl.

San Francisco, CA 94111

(415) 471-3114

JONATHAN S. MARTEL

ELISABETH S. THEODORE

Counsel of Record

SEAN A. MIRSKI

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

Elisabeth.Theodore@

arnoldporter.com

Counsel for Amici Curiae