Respondents Brief — Volkswagen Group of America, Inc., et al., Petitioners v. The Environmental Protection Commission of Hillsborough County, Florida, et al.
Supreme Court briefMar 18, 2021
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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 FOR THE RESPONDENTS IN OPPOSITION
BRIDGET C. ASAY
STRIS & MAHER LLP
28 Elm Street, 2d Floor
Montpelier, VT 05602
PETER K. STRIS
Counsel of Record
RACHANA A. PATHAK
DOUGLAS D. GEYSER
JOHN STOKES
STRIS & MAHER LLP
777 S. Figueroa Street
Suite 3850
Los Angeles, CA 90017
(213) 995-6800
pstris@stris.com
Counsel for Respondents
276878.1
QUESTION PRESENTED
During recalls and routine maintenance on cars driven
in respondents’ counties, petitioners (collectively,
“Volkswagen”) installed software that illegally tampered
with the cars’ emissions-control systems. Volkswagen did
not disclose these defeat devices to the Environmental
Protection Agency for the obvious reason that EPA never
would have approved them. After Volkswagen got caught,
respondents (the “Counties”) sued them for tampering.
Volkswagen moved to dismiss based on preemption under
the Clean Air Act (the “Act”).
The Act recognizes that “air pollution control at its
source is the primary responsibility of States and local
governments.” 42 U.S.C. 7401(a)(3). It carves out limited
areas of exclusive federal control—like enforcing “any
standard relating to the control of emissions from new
motor vehicles,” 42 U.S.C. 7543(a)—but otherwise provides that “nothing in this chapter shall preclude or deny
the right of any State or political subdivision” to enforce
“any standard” or “requirement.” 42 U.S.C. 7416; see also
42 U.S.C. 7543(d) (preserving local authority over “the
use, operation, or movement of” cars).
The Ninth Circuit rejected Volkswagen’s preemption
defense. It expressly grounded its conclusion on
Volkswagen’s “unusual” and “aberrant” misconduct,
namely, “intentionally tamper[ing] * * * to deceive the
regulators.” Pet. App. 3a-4a.
The question presented is:
Whether the Clean Air Act preempts states and local
governments from penalizing car manufacturers for tampering with emissions systems on post-sale, in-use vehicles, where EPA did not approve the manufacturers’ actions.
(I)
276878.1
II
TABLE OF CONTENTS
Question presented .............................................................. I
Introduction .......................................................................... 1
Statutory provisions involved ............................................. 4
Statement .............................................................................. 6
A. Statutory background ...................................... 6
B. Facts and procedural history .......................... 9
Reasons for denying the petition...................................... 16
I. There is no conflict that warrants further
review ...................................................................... 16
A. The Ninth Circuit did not address the
question posed by the petition....................... 16
B. The question the Ninth Circuit decided
is important only to manufacturers who
plan on evading the Act’s regulatory
procedures ....................................................... 17
C. The actual conflict is weak and shallow ........ 22
D. This is a poor vehicle to address the
petition’s question ........................................... 25
II. The Ninth Circuit’s decision is correct ................ 25
A. The Ninth Circuit correctly understood
the preemption framework and the Act’s
structure .......................................................... 25
B. The Act does not expressly preempt the
Counties’ claims .............................................. 28
C. The Act does not impliedly preempt the
Counties’ claims .............................................. 31
Conclusion ........................................................................... 35
276878.1
III
TABLE OF AUTHORITIES
Page(s)
Cases
Allway Taxi, Inc. v. City of New York,
340 F. Supp. 1120 (S.D.N.Y. 1972) ........... 12, 13, 28, 29
California v. Zook,
336 U.S. 725 (1949) ....................................................... 15
Chamber of Commerce of U.S. v. Whiting,
563 U.S. 582 (2011) ....................................................... 31
CSX Transp., Inc. v. Easterwood,
507 U.S. 658 (1993) ................................................. 13, 31
Dan’s City Used Cars, Inc. v. Pelkey,
569 U.S. 251 (2013) ....................................................... 29
Dep’t of Homeland Sec. v. MacLean,
574 U.S. 383 (2015) ....................................................... 31
Engine Mfrs. Ass’n v. S. Coast Air Quality
Mgmt. Dist.,
541 U.S. 246 (2004) ......................................................... 6
Gamble v. United States,
139 S. Ct. 1960 (2019) ................................................... 22
Huron Portland Cement Co. v. City of
Detroit, Mich.,
362 U.S. 440 (1960) ......................................................... 6
Kansas v. Garcia,
140 S. Ct. 791 (2020) ............................................ passim
276878.1
IV
Kingbird v. State,
949 N.W.2d 744 (Minn. Ct. App. 2020) ....................... 24
Motor & Equipment Mfrs. Ass’n v. EPA,
627 F.2d 1095 (D.C. Cir. 1979) ...................................... 7
Oneok, Inc. v. Learjet, Inc.,
575 U.S. 373 (2015) ....................................................... 14
Riegel v. Medtronic, Inc.,
552 U.S. 312 (2008) ....................................................... 30
Russello v. United States,
464 U.S. 16 (1983) ......................................................... 30
Salinas v. U.S. R.R. Retirement Bd.,
141 S. Ct. 691 (2021) ..................................................... 30
State ex rel. Slatery v. Volkswagen
Aktiengesellschaft,
No. M2018-00791-COA-R9-CV, 2019 WL
1220836 (Tenn. Ct. App. Mar. 13, 2019) ......... 23, 24, 28
State v. Volkswagen AG,
279 So. 3d 1109 (Ala. 2018) .............................. 23, 24, 28
State v. Volkswagen Aktiengesellschaft,
No. 1622-CC10852-01, 2018 WL 3349094
(Mo. Cir. Ct. June 26, 2018) ......................................... 23
State ex rel. Swanson v. Volkswagen
Aktiengesellschaft,
No. A18-0544, 2018 WL 6273103 (Minn.
Ct. App. Dec. 3, 2018) ....................................... 23, 24, 28
276878.1
V
Union of Concerned Scientists v. Nat’l
Highway Traffic Safety Admin.,
No. 19-1230 (D.C. Cir.) ................................................ 18
Virginia Uranium, Inc. v. Warren,
139 S. Ct. 1894 (2019) ................................................... 31
Washington v. Gen. Motors Corp.,
406 U.S. 109 (1972) ......................................... 7, 9, 27, 34
Watts v. Watts,
519 S.W.3d 572 (Tenn. Ct. App. 2016) ........................ 24
Wyeth v. Levine,
555 U.S. 555 (2009) ........................................... 27, 28, 31
State of Ohio ex rel. Yost v. Volkswagen
Aktiengesellschaft,
Case No. 2020-0092 (Ohio Aug. 10, 2020) .................. 19
Statutes
42 U.S.C. 1857h-2 ................................................................. 7
42 U.S.C. 7401(a)(2).............................................................. 6
42 U.S.C. 7401(a)(3).................................................. 6, 26, 27
42 U.S.C. 7401(a)(4).............................................................. 6
42 U.S.C. 7401(b)(1) ............................................................. 6
42 U.S.C. 7401(b)(3) ............................................................. 6
42 U.S.C. 7401(c) .................................................................. 6
42 U.S.C. 7416 ............................................................ passim
276878.1
VI
42 U.S.C. 7521 ....................................................................... 7
42 U.S.C. 7521(d) .................................................................. 8
42 U.S.C. 7522(a)(3)............................................ 8, 11, 22, 34
42 U.S.C. 7524 ..................................................................... 33
42 U.S.C 7524(a) ............................................................. 8, 22
42 U.S.C. 7541 ....................................................................... 8
42 U.S.C. 7541(a)(2)........................................................ 7, 30
42 U.S.C. 7541(h) ............................................................ 7, 30
42 U.S.C. 7541(h)(2) ........................................................... 26
42 U.S.C. 7543(a) ....................................................... passim
42 U.S.C. 7543(c) ...................................................... 7, 26, 30
42 U.S.C. 7543(d) ................................................ 8, 26, 31, 32
42 U.S.C. 7543(e)(1)............................................................ 26
42 U.S.C. 7550(3) .................................................................. 7
42 U.S.C. 7604 ....................................................................... 7
42 U.S.C. 7604(e) ................................................................ 34
Rules and Regulatory Materials
40 C.F.R. 86.1845-04 ............................................................ 8
50 Fed. Reg. 30960 (July 31, 1985) ..................................... 8
276878.1
VII
51 Fed. Reg. 10198-01 (Mar. 25, 1986) ......................... 9, 30
59 Fed. Reg. 36969 (July 20, 1994) ..................................... 7
63 Fed. Reg. 6651 (Feb. 10, 1998) ....................................... 8
84 Fed. Reg. 51310 (Sept. 27, 2019) .................................. 18
86 Fed. Reg. 7037 (Jan. 20, 2021) ..................................... 18
Hillsborough Cty. EPC Rule 1-8.05 ................................. 12
S. Ct. R. 10 .................................................................... 23, 24
Utah Admin. Code R307-201-4 ......................................... 12
Other Authorities
EPA, 2018 Clean Air Act Enforcement Case
Resolutions.................................................................... 30
EPA, Daimler AG and Mercedes-Benz USA,
LLC Clean Air Act Civil Settlement
(Sept. 14, 2020).............................................................. 20
EPA, Derive Systems Clean Air Act
Settlement (Sept. 24, 2018) ......................................... 30
276878.1
In the Supreme Court of the United States
No. 20-994
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 FOR THE RESPONDENTS IN OPPOSITION
INTRODUCTION
Volkswagen devotes most of its pitch for certiorari to
a question the Ninth Circuit didn’t decide. The thrust of
its argument is that states and local governments cannot
be allowed to penalize EPA-approved conduct or “impose
conflicting regulation[s] on manufacturers.” Pet. 4.
Maybe so, but that has nothing to do with this case. The
Counties do not seek to penalize anything EPA approved
because Volkswagen “deceive[d]” EPA and evaded the
very regulatory approval process it invokes. Pet. App. 3a4a. There are no conflicting regulations because the Counties’ anti-tampering rules prohibit “exactly what” the Act
(1)
276878.1
2
forbids. Id. at 37a n.22. Those critical facts form the express foundation of the Ninth Circuit’s analysis.
Volkswagen’s specter of regulatory anarchy therefore depends on a legal and factual scenario that the Ninth Circuit neither addressed nor resolved.
The Ninth Circuit’s actual holding is unremarkable legally and practically. It represents a “straightforward application” of well-settled preemption principles to
Volkswagen’s “unexpected and aberrant conduct.” Pet.
App. 3a-4a, 45a-46a. In short: the Act expressly preserves
state and local authority over post-sale cars, and the
Counties’ claims do not interfere with a regulatory process that Volkswagen deliberately bypassed.
That narrow decision does not warrant further review.
It is so obviously uncertworthy—Volkswagen’s own amici
admit the facts are “not typical” (Product Liability Advisory Council Br. 6)—that Volkswagen tries to litigate a
wholly distinct preemption case, one where EPA did approve the post-sale modification and a state or locality rejected that judgment. Volkswagen indeed flat-out mischaracterizes the court’s decision, wrongly claiming that
the court called post-sale recalls “rare.” Pet. 5, 18. The
Ninth Circuit called Volkswagen’s misconduct rare, and
that misconduct is what the Counties may penalize without interfering with the Act. Pet. App. 2a-4a, 45a.
Volkswagen resorts to speculating that other localities
“could potentially penalize even modifications that EPA
already approved.” Pet. 31 (emphasis in original); see, e.g.,
id. at 19. The best Volkswagen can find are one page in
another state’s brief (which it grossly misrepresents, infra pp. 19-20) and one county’s lawsuit (which it misunderstands, infra pp. 20-21). Regardless, the fact that other,
distinguishable cases could present harder preemption
questions provides no reason to review this decision. Far
from it, those other cases support denying certiorari to let
276878.1
3
the issue percolate. Should a court somewhere sometime
hold that states can forbid what EPA has permitted, this
Court can review that decision. The Ninth Circuit, however, addressed an entirely different question that carries
no consequences for a post-sale, EPA-approved change.
Any split on the issue the Ninth Circuit actually decided is similarly insignificant. All the decisions comprising the split involve Volkswagen, so those cases have no
bearing on typical post-sale updates. Any divergence in
outcome thus matters only to Volkswagen or another
manufacturer who intends to evade EPA’s approval process.
And Volkswagen overstates the conflict even on that
limited question. Indeed, every appellate court
Volkswagen cites rejected its primary argument of express preemption. And on obstacle preemption, the “split”
is shallow and likely to resolve itself. Two of the three
state-court cases are unpublished decisions from intermediate courts, and all three rested heavily on the district
court’s now-reversed analysis here. That sparse caselaw
confirms the propriety of additional percolation.
In truth, the petition is little more than a veiled request for error correction, which is no basis for certiorari
at all. Regardless, the Ninth Circuit correctly decided the
narrow issue before it. On express preemption, like every
other appellate court, the court properly refused to rewrite a clear statute to protect manufacturers in a way
Congress did not contemplate. On obstacle preemption, it
properly refused to “strain to give Volkswagen the equivalent of a release from state and local liability (which it did
not secure for itself) by engaging in a ‘freewheeling judicial inquiry into whether a state statute is in tension with
federal objectives.’” Pet. App. 4a (citation omitted). The
petition should be denied.
276878.1
4
STATUTORY PROVISIONS INVOLVED
In addition to provisions reproduced in the petition appendix, the Clean Air Act includes the following pertinent
provisions.
42 U.S.C. 7401(a) provides, in relevant part:
(a) Findings
The Congress finds—
***
(2) that the growth in the amount and complexity
of air pollution brought about by urbanization, industrial development, and the increasing use of
motor vehicles, has resulted in mounting dangers
to the public health and welfare, including injury to
agricultural crops and livestock, damage to and the
deterioration of property, and hazards to air and
ground transportation; [and]
(3) that air pollution prevention (that is, the reduction or elimination, through any measures, of the
amount of pollutants produced or created at the
source) and air pollution control at its source is the
primary responsibility of States and local governments * * * .
42 U.S.C. 7416 provides:
Retention of State authority
Except as otherwise provided in sections 1857c-10(c),
(e), and (f) (as in effect before August 7, 1977), 7543,
7545(c)(4), and 7573 of this title (preempting certain
State regulation of moving sources) nothing in this
chapter shall preclude or deny the right of any State
or political subdivision thereof to adopt or enforce
(1) any standard or limitation respecting emissions of
276878.1
5
air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an
emission standard or limitation is in effect under an
applicable implementation plan or under section 7411
or section 7412 of this title, such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.
42 U.S.C. 7541(a)(2) provides:
In the case of a motor vehicle part or motor vehicle
engine part, the manufacturer or rebuilder of such
part may certify that use of such part will not result in
a failure of the vehicle or engine to comply with emission standards promulgated under section 7521 of this
title. Such certification shall be made only under such
regulations as may be promulgated by the Administrator to carry out the purposes of subsection (b). The
Administrator shall promulgate such regulations no
later than two years following August 7, 1977.
42 U.S.C. 7543(c) provides:
(c) Certification of vehicle parts or engine parts
Whenever a regulation with respect to any motor vehicle part or motor vehicle engine part is in effect under section 7541(a)(2) of this title, no State or political
subdivision thereof shall adopt or attempt to enforce
any standard or any requirement of certification, inspection, or approval which relates to motor vehicle
emissions and is applicable to the same aspect of such
part. The preceding sentence shall not apply in the
case of a State with respect to which a waiver is in effect under subsection (b).
42 U.S.C. 7550(3) provides, in relevant part:
276878.1
6
As used in this part—
***
Except with respect to vehicles or engines imported or
offered for importation, the term “new motor vehicle”
means a motor vehicle the equitable or legal title to
which has never been transferred to an ultimate purchaser * * *.
STATEMENT
A. Statutory Background
1. “Legislation designed to free from pollution the
very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power.” Huron Portland
Cement Co. v. City of Detroit, Mich., 362 U.S. 440, 442
(1960). When Congress enacted the Clean Air Act “to protect and enhance the quality of the Nation’s air resources”
(42 U.S.C. 7401(b)(1)), it likewise recognized that controlling pollution remains “the primary responsibility of
States and local governments.” 42 U.S.C. 7401(a)(3); see,
e.g., 42 U.S.C. 7401(a)(2), (4), (b)(3), (c); Engine Mfrs.
Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246,
260 n.2 (2004) (Souter, J., dissenting) (explaining history
of Section 7401).
The Act’s substantive provisions reflect that shared
federal-state authority. They preserve state and local primacy in most areas, while vesting the federal government
with exclusive authority over particular issues. For instance, in a provision titled “Retention of State authority,”
Congress instructed that, “[e]xcept as otherwise provided
in” several express preemption provisions, “nothing in
this chapter shall preclude or deny the right of any State
or political subdivision thereof to adopt or enforce (1) any
276878.1
7
standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.” 42 U.S.C. 7416. And 42 U.S.C. 7604
reinforces that “States[] and local governments may initiate actions to enforce compliance with federal standards
and to enforce other statutory and common-law rights.”
Washington v. Gen. Motors Corp., 406 U.S. 109, 115 n.4
(1972) (citing 42 U.S.C. 1857h-2 (recodified as 42 U.S.C.
7604)).
2. The Act’s treatment of motor vehicles hews to that
line. The Act imposes emissions standards for new motor
vehicles. See 42 U.S.C. 7521. A “new motor vehicle” is “a
motor vehicle the equitable or legal title to which has
never been transferred to an ultimate purchaser.” 42
U.S.C. 7550(3). To prevent “an anarchic patchwork of federal and state regulatory programs,” Congress added an
express preemption provision. Motor & Equipment Mfrs.
Ass’n, Inc. v. EPA, 627 F.2d 1095, 1109 (D.C. Cir. 1979).
That provision prohibits states from regulating emissions
from new motor vehicles: “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.” 42 U.S.C. 7543(a). And EPA has opined that a
state could not apply an emissions standard “as soon as
[the cars] are introduced into commerce,” for that would
“effectively” regulate “the design of new engines.” 59 Fed.
Reg. 36969, 36973, 36974 (July 20, 1994).
Other express preemption provisions explicitly excuse
“manufacturers” from certain state and local regulation.
See 42 U.S.C. 7541(h), 7543(c) (referencing 42 U.S.C.
7541(a)(2)). Volkswagen does not argue that those provisions expressly preempt state and local anti-tampering
laws.
276878.1
8
The Act also includes a non-preemption provision regarding in-use vehicles. Echoing Section 7416, Section
7543(d) provides: “Nothing in this part shall preclude or
deny to any State or political subdivision thereof the right
otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles.”
As the Ninth Circuit discussed, EPA also wields some
authority over in-use cars. The Act and EPA’s regulations
include provisions regarding the “useful life” of a vehicle
and recall procedures to fix defects. See, e.g., Pet. App.
25a-26a; 42 U.S.C. 7521(d), 7541; 40 C.F.R. 86.1845-04.
The software defeat devices that Volkswagen installed
here did not receive approval through those recall procedures. E.g., Pet. App. 8a-9a; C.A. E.R. 51-53.
There is also undeniable overlap regarding anti-tampering laws. The Act forbids “any person to remove or
render inoperative” any part of an emissions-control system, and forbids “any person * * * to bypass, defeat, or
render inoperative” an emissions-control system. 42
U.S.C. 7522(a)(3)(A), (B). It imposes monetary penalties
for violating those prohibitions. 42 U.S.C 7524(a).
Most states have also enacted anti-tampering laws.
Pet. App. 33a & n.19. EPA has approved state anti-tampering laws with the same scope as the Counties’, and it
has disapproved state anti-tampering laws for being less
stringent than the federal anti-tampering rule. See, e.g.,
50 Fed. Reg. 30960, 30961-30962 (July 31, 1985) (approving Indiana law that “prohibits any person” from tampering and imposes up to a $2,500 penalty); 63 Fed. Reg. 6651,
6652 (Feb. 10, 1998) (disapproving anti-tampering law).
EPA has even encouraged states to adopt anti-tampering rules: “A State or local government is free to adopt
and enforce an anti-tampering law on its own, if it feels
276878.1
9
that such a law would contribute to reducing motor vehicle
emissions.” 51 Fed. Reg. 10198-01, 10206 (Mar. 25, 1986).
Accordingly, the basic division of authority under the
Act is clear: “Because federal motor vehicle emission control standards apply only to new motor vehicles, States
also retain broad residual power over used motor vehicles.” Washington, 406 U.S. at 115 n.4.
B. Facts And Procedural History
1. This case arises from Volkswagen’s multi-year effort to avoid compliance with federal and state law and to
deceive EPA to help its bottom line. Volkswagen tampered with new cars and post-sale, in-use cars. The Counties sued to impose penalties based on both types of tampering, but only the claims based on in-use cars are at issue here.
a. Volkswagen faced a dilemma. Effective 2007, it had
to comply with new federal emissions standards. But satisfying those standards would hurt its cars’ performance,
making them less attractive to buyers. Rather than
“mak[e] beneficial modifications to emission systems”
(Pet. 4), Volkswagen decided to cheat the emissions tests.
Pet. App. 6a.
Volkswagen installed software devices that could detect whether the vehicles were being tested or being
driven on the road. Id. at 6a-7a. If they were undergoing
testing (“dyno mode”), the devices caused the cars to operate in a way that would meet emissions limits. But if
they were being driven (“street mode”), the software “reduced the effectiveness of the vehicle’s emission control
system” to produce emissions “up to 35 times higher than
federal standards.” Id. at 7a. Volkswagen did not disclose
these devices to EPA.
Around 2012, drivers who had purchased these cars
began reporting hardware failures. Id. at 8a. Volkswagen
discovered that the software sometimes failed to detect
276878.1
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that the car was being driven on the road, so the car operated in compliance with emissions standards. That, in
turn, “increase[d] stress on the exhaust system.” Ibid.
Instead of either developing technology to maintain
their vehicles’ reliability while obeying the law or simply
handling more warranty claims, Volkswagen decided it
needed to cheat better. It developed two new software devices. One caused the car to start in dirty street mode. The
other aimed to better detect when the car was undergoing
an emissions test. Ibid. The software’s fundamental purpose was to reduce the hardware failures caused by a compliant emissions system. See ibid.
Beginning in 2014, during voluntary recalls and routine maintenance, Volkswagen installed these new software defeat devices on cars that had already been sold
and were being driven in the Counties. Ibid. Contrary to
Volkswagen’s assertion that EPA oversaw the software
installations (Pet. 12), “Volkswagen deceptively told EPA
regulators and American consumers that the software updates were intended to improve the operation of the” cars.
Pet. App. 9a.1
EPA opened an investigation after an independent
study showed that Volkswagen’s vehicles were emitting
pollutants above the federal limit. Ibid. Volkswagen continued to lie to EPA during this investigation, while also
continuing to install the new software on in-use vehicles.
C.A. E.R. 52-55.
1
Volkswagen asserts that the new software somehow reduced
emissions. Pet. 12, 27. On the contrary, as the district court explained,
“the post-sale software changes increased emissions.” Pet. App. 65a.
Volkswagen waived that determination by not challenging it before
the Ninth Circuit. Cf. id. at 13a-14a. Regardless, Volkswagen’s guilty
plea confirms both courts’ understanding of the facts. See id. at 8a9a; C.A. E.R. 49-51.
276878.1
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Finally, in August 2016, a Volkswagen whistleblower
revealed, “for the first time to U.S. regulators and in direct contravention of instructions from supervisors,” that
Volkswagen “had evaded emissions tests.” Id. at 55; see
Pet. App. 9a. Then a supervisor, “while creating the false
impression that he had been unaware of the defeat device
previously, admitted that VW had installed a defeat device.” C.A. E.R. 55. Volkswagen eventually “disclosed the
entire scheme.” Pet. App. 9a.2
The upshot is that the Counties seek to penalize only
Volkswagen’s actions—installation of software defeat devices on used vehicles being driven in their jurisdictions—
that EPA never approved.
b. EPA brought civil claims against Volkswagen and
criminal claims against Volkswagen AG.
In the criminal action, Volkswagen AG pleaded guilty
to multiple crimes and paid the United States a $2.8 billion
fine. Pet. App. 9a. “The plea agreement did not give
Volkswagen ‘any protection against prosecution’ from
state or local governments.” Id. at 9a-10a.
In the civil action, Volkswagen entered into three consent decrees to settle, among other claims, tampering violations under 42 U.S.C. 7522(a)(3). It agreed to pay a
$1.45 billion penalty to resolve EPA’s various civil claims.
See D. Ct. Doc. 2758-1, at 8-9 (Jan. 11, 2017),
https://www.epa.gov/enforcement/volkswagen-clean-airact-civil-settlement. It also paid $2.925 billion into a mitigation trust. Pet. App. 51a. “[E]ach state expressly reserved its right ‘to seek fines or penalties’ against
Volkswagen in connection with being named a beneficiary
of [the mitigation] trust.” Id. at 10a n.10.
2
Volkswagen thus “quickly acknowledged its wrongdoing” (Pet.
12) only after its years of deception had been irrefutably exposed.
276878.1
12
2. The Counties sued Volkswagen for tampering with
the emissions systems on cars in their counties. Salt Lake
County sued under a state anti-tampering regulation
providing that “[n]o person shall remove or make inoperable the [emissions-control] system” except to install an
“equally or more effective” control system. Utah Admin.
Code R307-201-4. Hillsborough County invoked two
county rules, which provide that “[n]o person shall tamper, cause, or allow the tampering of the emission control
system of any motor vehicle,” and “[no] person shall * * *
defeat or render inoperable any component of a motor vehicle’s emission control system.” EPC Rules 1-8.05(1), (6);
see Pet. App. 12a-13a. These provisions prohibit “exactly
what the federal anti-tampering law prohibits.” Pet. App.
37a n.22.
The district court held that the Clean Air Act
preempted the Counties’ claims and dismissed them on
the pleadings. The court held that 42 U.S.C. 7543(a) expressly preempted the claims based on the software installed when manufacturing new cars. Pet. App. 61a-64a.
Section 7543(a), however, did not preempt tampering
claims based on the software installed on post-sale vehicles. The cars were already “in use within the Counties,”
so they were not “new.” Pet. App. 65a. The court also rejected Volkswagen’s argument that the software related
back to the original design under Allway Taxi, Inc. v. City
of New York, 340 F. Supp. 1120 (S.D.N.Y. 1972). See Pet.
App. 66a-67a.
The court next held that obstacle preemption did apply. But rather than analyze whether the Act shows “the
clear and manifest purpose of Congress” to supersede the
Counties’ traditional police power to regulate pollution,
the court asked whether “state and local governments
[were] given authority to supplement EPA’s enforcement
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13
authority.” Id. at 72a. After discussing the Act’s provisions for “useful life” testing, the court determined it was
“sensible” to give EPA exclusive authority over “modelwide” emissions “at the manufacturer level.” Id. at 73a.
That outcome “best utilizes the comparative advantages
of EPA and the states and local governments.” Ibid.; see
id. at 76a. The court also wrote that the Counties’ actions
could “undermine the congressional calibration of force
for tampering by vehicle manufacturers.” Id. at 78a. The
court did not explain why that reasoning wouldn’t apply
equally to tampering by non-manufacturers.
3. The Ninth Circuit affirmed the district court’s dismissal of the claims for tampering with new cars, but reversed on the claims for post-sale tampering.
The court first rejected express preemption. It explained that the text of the clause “‘contains the best evidence of Congress’ pre-emptive intent.’” Pet. App. 15a
(quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
664 (1993)). The plain “terms” of Section 7543(a) govern
“regulations ‘relating to the control of emissions from new
motor vehicles,’” whereas the Counties seek to penalize
tampering with “post-sale vehicles.” Id. at 30a (quoting 42
U.S.C. 7543(a)).
The court also applied the test that Volkswagen requested regarding the reach of that provision. See id. at
30a-31a. It noted Volkswagen’s argument, based on Allway Taxi, that states and localities cannot escape Section
7543(a) by “impos[ing] a different emission standard the
moment after title is transferred to a purchaser.” Pet.
App. 30a. The Counties’ rules, however, “do not require
Volkswagen to comply with a local emission standard that
is different from the federal standard, nor do they impose
a standard that would effectively require car manufacturers to alter their manufacture of new vehicles before sale.”
Id. at 31a.
276878.1
14
The court further noted that Volkswagen’s understanding would extend Section 7543(a)’s express preemption to “the local garage mechanic who disconnects vehicles’ emission control devices to improve performance or
gas mileage.” Ibid.
Turning to implied preemption, the court rejected
Volkswagen’s argument that the anti-tampering claims
“stand ‘as an obstacle to the accomplishment and execution of the full purposes and objectives’” of the Act. Id. at
32a (quoting Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377
(2015)). Viewing Section 7543’s preemption and saving
clauses together, the court found that Congress did not
intend to supersede states’ historic police power to regulate tampering with post-sale vehicles. Id. at 32a-36a. That
conclusion was supported by the fact that “many” state
anti-tampering laws “existed during the period in which
Congress amended the CAA without making any changes
to the preservation of state authority.” Id. at 33a-34a.
The court then addressed Volkswagen’s two obstacle
preemption theories. Id. at 36a-37a. First, the court rejected Volkswagen’s reliance on provisions “tasking the
EPA with ensuring compliance with” the Act’s “post-sale
obligations on manufacturers.” Id. at 37a-38a. The court
viewed Volkswagen’s interpretation as “merely a reading
of the CAA tailored to fit Volkswagen’s unique circumstances.” Id. at 38a. The text and structure did not indicate that manufacturers who engage in widespread tampering are shielded from regulation. “Indeed, the CAA is
entirely silent on this issue, probably because Congress
did not contemplate that a manufacturer would systematically tamper with emission control devices on post-sale
vehicles in order to ensure the devices were effectively
(and illegally) disabled.” Id. at 39a.
Second, the court rejected Volkswagen’s argument
that state anti-tampering penalties would “‘undermine
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15
the congressional calibration of force.’” Id. at 40a. “The
potential for overlapping state and federal penalties has
never, without more, raised the inference that Congress
intended to preempt state law.” Id. at 43a (citing Kansas
v. Garcia, 140 S. Ct. 791, 806 (2020); California v. Zook,
336 U.S. 725, 737 (1949)). Moreover, the Act’s penalty provisions also cover non-manufacturers. Accepting
Volkswagen’s argument would thus make EPA “the sole
enforcement authority for every incident of tampering
with air pollution control equipment, including illegal alterations by the local garage mechanic or do-it-yourself
efforts to disable a catalytic converter.” Id. at 44a (emphasis in original).
Finally, the Ninth Circuit easily brushed aside the assertion that the Counties’ position will create a “patchwork of varying” laws that would “‘create nightmares for
the manufacturers.’” Id. at 37a n.22. Those concerns were
“unwarranted” and “inapplicable” here because the Counties’ anti-tampering rules prohibit “exactly what the federal anti-tampering law prohibits.” Ibid.
The court concluded by reiterating that the potential
for “staggering liability” for Volkswagen arises entirely
from its own “rare” wrongdoing. Id. at 45a. That
Volkswagen cheated on a breathtaking scale did not justify an exception from the normal operation of the
preemption doctrine. Volkswagen thus “faces liability due
to the straightforward application of the Clean Air Act
and the preemption doctrine to its unexpected and aberrant conduct.” Ibid.
276878.1
16
REASONS FOR DENYING THE PETITION
I. THERE IS NO CONFLICT THAT WARRANTS
FURTHER REVIEW
A. The Ninth Circuit Did Not Address The Question
Posed By The Petition
Volkswagen asserts that courts have split over
“whether the CAA preempts state and local governments
from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.” Pet. i; see id. at 3, 15.
That is inaccurate. No court has given states and localities
wholesale freedom to regulate all “post-sale, nationwide”
updates, regardless of circumstances. The Ninth Circuit
did not answer that question any more than it answered
“whether the Act preempts states from regulating cars.”
The Ninth Circuit unambiguously rested its preemption analysis on the specifics of Volkswagen’s post-sale
modifications. It emphasized that its conclusion followed
from Volkswagen’s “unexpected and aberrant conduct,”
namely, “intentionally tamper[ing] with the emission control systems of its vehicles after sale in order to improve
the functioning of a device intended to deceive the regulators.” Pet. App. 4a (emphasis added). That distinguishes
typical post-sale changes because Congress obviously
contemplated post-sale updates that were approved
through the recall process. See id. at 25a-26a.
The Ninth Circuit also made clear that it was not addressing “unique emission standards” imposed by states
that would create “a patchwork of varying emission standards.” Id. at 37a n.22. It perceived no conflict between the
Counties’ anti-tampering actions and EPA approval, precisely because the Counties acted in “parallel” to EPA. Id.
at 35a-36a; see, e.g., id. at 31a n.18 (noting that the “antitampering rules prohibit the same conduct” as the Act).
Nothing in the Ninth Circuit’s opinion suggests that it
276878.1
17
would reach the same result outside of “Volkswagen’s
unique circumstances.” Id. at 38a.
To be sure, the Ninth Circuit did not reach out to opine
on hypothetical facts to speculate about the outcome of a
different dispute. Like this Court, it decided the case before it, nothing more. And its analysis rests squarely on
the fact that the Counties target conduct that EPA never
approved, under anti-tampering rules prohibiting “exactly what the federal anti-tampering law prohibits.” Id.
at 37a n.22. The possibility that other, unidentified cases
might present Volkswagen’s hypothetical question is a
reason to await further percolation, not to grant review
here. Volkswagen cannot divorce its petition from the legal and factual scenario the court confronted.
B. The Question The Ninth Circuit Decided Is Important Only To Manufacturers Who Plan On
Evading The Act’s Regulatory Procedures
Volkswagen skews the question presented because the
Ninth Circuit’s actual ruling is a narrow application of settled preemption law to a decidedly unflattering and atypical set of facts. The question whether the Act prohibits
states from penalizing tampering by manufacturers who
cheat the EPA update process is important only to manufacturers who cheat the EPA update process. It thus will
not recur with any frequency. Manufacturers have a simple step to avoid this predicament—tell EPA what they’re
doing and get approval like Congress intended, instead of
bypassing this “well-understood process with EPA.” Alliance for Automotive Innovation Amicus Br. 3.
Volkswagen’s claim that the Ninth Circuit’s decision is so
disastrous is belied by the fact that the United States declined the court’s invitation to participate.
Volkswagen’s description of its question presented as
“critically important” (Pet. 16) therefore depends on its
mischaracterization of the Ninth Circuit’s ruling. Once
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18
that decision is properly read as discussed supra Part I.A,
the case for plenary review crumbles.3
1. The foundation of Volkswagen’s pitch is that the decision will “throw” the motor-vehicle industry “into regulatory chaos.” Pet. 18. That is so, Volkswagen says, because “the Ninth Circuit held that all 50 states and 3,000
counties may separately regulate these updates according
to their own local policies, priorities, and preferences” and
thereby “second-guess EPA’s expert determinations.” Id.
at 19; see ibid. (imagining that the decision “would allow
states and localities to penalize these EPA-approved modifications”); but cf. supra n.3.
The Ninth Circuit held no such thing, because “conflicting regulation[s]” (Pet. 4) are not at issue here. The
Counties seek to penalize “tampering with approved
emission control systems”; they do not seek to penalize
the approved systems themselves. Pet. App. 37a n.22 (emphasis added). Concerns about states regulating EPA-approved devices are plainly “inapplicable.” Ibid.
For the same reasons, Volkswagen is wrong to speculate that manufacturers now have to “seek[] the approval
of all 50 states and thousands of localities before implementing post-sale, nationwide updates.” Pet. 19. To avoid
that “entirely impractical step” (ibid.), manufacturers
3
The Ninth Circuit’s decision may have even less practical import
because of the Clean Air Act’s structure and California’s waiver.
Volkswagen conceded that “California and potentially the Section 177
States following California can impose penalties for tampering.”
Volkswagen Rule 28(j) Letter, C.A. ECF No. 62 (Aug. 14, 2019) (emphasis added). The status of California’s waiver is unsettled pending
litigation over President Trump’s revocation of the waiver and President Biden’s order reconsidering that revocation. See 86 Fed. Reg.
7037, 7037-7038 (Jan. 20, 2021); 84 Fed. Reg. 51310 (Sept. 27, 2019);
Union of Concerned Scientists v. Nat’l Highway Traffic Safety Admin., No. 19-1230 (D.C. Cir.).
276878.1
19
need only follow the EPA approval process the petition so
painstakingly details.
Volkswagen thus has no basis to insist that the court’s
holding affects “dozens of recalls” involving “six million
cars every year, all coordinated with EPA.” Pet. 18. To
that end, Volkswagen falsely accuses the court of calling
post-sale updates “rare.” Ibid. (quoting Pet. App. 45a).
The Ninth Circuit did not call “post-sale updates” “rare”;
it called Volkswagen’s deceitful misconduct rare. See Pet.
App. 45a; id. at 3a-4a. Even Volkswagen’s amici admit:
“The factual circumstance in this case, where updates
were used to attempt to evade federal emissions requirements, is not typical.” Product Liability Advisory Council
Br. 6.
Indeed, Volkswagen’s own phrasing repudiates its
sky-is-falling rhetoric. It notes that updating these millions of cars is “coordinated with EPA.” Pet. 18.
Volkswagen’s updates, of course, were not coordinated;
Volkswagen deliberately deceived EPA. Pet. App. 8a-9a;
see id. at 1a. The Ninth Circuit’s holding on that “rare”
wrongdoing does not address updates that are coordinated with EPA. Id. at 45a.
Plenary review is not warranted for such an atypical
situation. Should a court ever permit a state to penalize
conduct that EPA has affirmatively approved, this Court
can review that decision.
2. Because the Ninth Circuit plainly did not address
the issues that trouble Volkswagen and its amici,
Volkswagen hunts for other cases. These examples only
prove the need for additional percolation, and Volkswagen
mischaracterizes them regardless.
Volkswagen incorrectly asserts that in a pending appeal, Ohio “explicitly claimed that it has the authority to
challenge EPA-approved updates.” Pet. 5; see id. at 19
(quoting Merit Br. of Appellee 40, 2020 WL 4922377, State
276878.1
20
of Ohio ex rel. Yost v. Volkswagen Aktiengesellschaft,
Case No. 2020-0092 (Ohio Aug. 10, 2020)). Ohio’s lawsuit
addresses the same misconduct Volkswagen committed
here, and nothing in Ohio’s brief “explicitly” claims anything about regulating EPA-approved updates. Rather,
Ohio “seek[s] penalties for Volkswagen’s cheating.” Ohio
Br. 40; see id. at 44-45. Ohio’s Attorney General confirmed
at oral argument that it would be “a different case” if “the
federal government gives the thumbs up to some kind of
update, and a state tries to do the opposite.” Ohio, Oral
Arg. Recording 17:05-17:36 (Ohio Jan. 26, 2021), https://tinyurl.com/OhioOralArg. In any event, even if Ohio did assert such authority and even if the Supreme Court of Ohio
accepts that argument, that’s no reason to review this
case—which does not present the question.
Volkswagen further notes that its deception isn’t
unique; another manufacturer, Daimler AG, also hid defeat devices from EPA, and Hillsborough County has
been “emboldened” to sue Daimler for its illegal conduct.
Pet. 21. In other words, another manufacturer also “did
not disclose the existence of” software defeat devices, and
a county had the audacity to sue it for breaking the law.
EPA, Daimler AG and Mercedes-Benz USA, LLC Clean
Air Act Civil Settlement (Sept. 14, 2020), https://tinyurl.com/EPADaimler (“Daimler Settlement”). Like the
Ninth Circuit’s decision, that claim has no bearing on
whether states and counties can “impose conflicting regulation on manufacturers.” Pet. 4.
Volkswagen tries to fabricate conflicting regulations
in the Daimler lawsuit by arguing that the county also
wants injunctive relief “to ‘completely repair’ the affected
vehicles.” Pet. 21 (quoting Hillsborough’s Middle District
of Florida complaint). According to Volkswagen, that relief would conflict with the Daimler consent decree, which
276878.1
21
supposedly “permits those vehicles to remain in use, provided Daimler pays money into a mitigation trust.” Ibid.
That is a bizarre conception of the consent decree. EPA
did order the cars repaired: “Daimler must recall the affected vehicles and update the software and certain hardware in order to remove all defeat devices and ensure the
vehicles comply with all applicable emission standards.”
Daimler Settlement, supra. It then established “stipulated penalties in the unlikely event that one or more [approved modifications] do not meet the applicable emission
standards.” Ibid. Those provisions do not express a judgment by EPA that it’s fine for Daimler to keep polluting
as long as it pays more money, any more than speeding
laws “permit” drivers to speed provided they pay their
tickets.
Regardless, if “the unlikely event” occurs that Daimler does not repair the cars under the consent decree
(ibid.), and if Hillsborough proves its entitlement to injunctive relief, and if that relief requires Daimler to fix
something EPA approved, and if the Eleventh Circuit
finds no preemption, then perhaps that case warrants review. But that speculative chain of events is worlds apart
from the Ninth Circuit’s decision, which considered only
monetary penalties for conduct EPA never approved.
The fact that this unadjudicated request for injunctive
relief is Volkswagen’s leading real-world example of regulatory chaos exposes the weakness of its case for plenary
review.
3. Finally, in a single sentence that cross-references
its merits argument, Volkswagen suggests that the Ninth
Circuit’s decision will interfere with EPA’s ability to resolve enforcement actions and “set appropriate penalties.” Pet. 20. Volkswagen offers no evidence of such interference. In fact, states and counties sued Volkswagen
while the federal enforcement actions were ongoing. Pet.
276878.1
22
App. 10a-11a. The consent decrees were settled nonetheless, and Volkswagen knew the stakes when it did not obtain releases. Id. at 9a-10a. Moreover, Volkswagen admits
that Congress endorsed concurrent enforcement of antitampering rules against non-manufacturers. E.g., Pet. 27;
cf. 42 U.S.C. 7522(a)(3), 7524(a); Pet. App. 34a n.21, 44a.
Concurrent enforcement is indeed the norm under the
longstanding dual-sovereignty doctrine, which makes
clear that states aren’t second-guessing EPA but rather
vindicating their own interests “in punishing the same
act.” Gamble v. United States, 139 S. Ct. 1960, 1966 (2019).
Volkswagen’s argument boils down to an attack on that
doctrine. But as this Court recently explained, “the possibility that federal enforcement priorities might be upset
is not enough to provide a basis for preemption.” Garcia,
140 S. Ct. at 807; see infra Part II.C. And, again, this situation will recur only where manufacturers take the rare
step of bypassing EPA’s approval process. This unusual
scenario does not merit the Court’s intervention.
*
*
*
In short, Volkswagen’s assertion of “regulatory turmoil” (Pet. 20) constitutes pure conjecture that depends
on misreading the Ninth Circuit’s opinion to announce a
holding it did not reach, based on hypothetical facts the
court explicitly disclaimed. The decision provides no support for allowing states or local governments to penalize
actions that EPA has approved. If some court somewhere
does allow states to penalize EPA-approved conduct, the
Court can take that case. But review is not warranted
here to address Volkswagen’s speculation.
C. The Actual Conflict Is Weak And Shallow
To the extent there is any actual conflict, it does not
warrant review. Volkswagen’s claim of a “split” boils down
to this: Volkswagen escaped liability in Alabama because
the Alabama Supreme Court adopted the now-reversed
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23
decision of the district court in this case. See State v.
Volkswagen AG, 279 So. 3d 1109, 1121-1129 (Ala. 2018)
(quoting 8 pages of the district court’s opinion); S. Ct. R.
10(a) (referencing conflict between a federal court of appeals and “state court of last resort”). That conflict is unlikely to persist now that the Ninth Circuit has corrected
the district court’s mistaken analysis.
Moreover, the split lacks practical significance. It involves only Volkswagen’s past misconduct. It doesn’t address any ongoing acts or business decisions—unless
Volkswagen and other manufacturers intend to skirt
EPA’s approval process. A shallow, weak conflict over unusual factual circumstances does not deserve this Court’s
resources.
1. In the first place, there is no conflict at all on
whether the Act expressly preempts anti-tampering lawsuits in these circumstances. The Alabama, Minnesota,
and Tennessee courts all had little trouble rejecting
Volkswagen’s express preemption defense (as did the district court here). See Alabama, 279 So. 3d at 1119; State
ex rel. Slatery v. Volkswagen Aktiengesellschaft, No.
M2018-00791-COA-R9-CV, 2019 WL 1220836, at *10
(Tenn. Ct. App. Mar. 13, 2019); State ex rel. Swanson v.
Volkswagen Aktiengesellschaft, No. A18-0544, 2018 WL
6273103, at *6 (Minn. Ct. App. Dec. 3, 2018); Pet. App. 65a67a. That unanimity on express preemption does not warrant review.4
2. Although the Ninth Circuit’s decision conflicts with
the decision of the Alabama Supreme Court on obstacle
4
The Missouri trial court found the claims expressly preempted,
but its analysis consisted of two conclusory sentences. See State v.
Volkswagen Aktiengesellschaft, No. 1622-CC10852-01, 2018 WL
3349094, at *3 (Mo. Cir. Ct. June 26, 2018). An unexplained conclusion
by a state trial court does not satisfy Rule 10.
276878.1
24
preemption, that is not enough to warrant this Court’s intervention. The relevant portion of the Alabama decision
consists primarily of an eight-page block quotation of the
district court’s opinion. Alabama, 279 So. 3d at 1121-1128.
The court then wrote that it agreed, “[c]onsidering the
unique factual situation involved in this case.” Id. at 1128.
That ruling does not signify a persistent or serious disagreement on the interpretation of federal law and would
likely be revisited in a future decision based on the Ninth
Circuit’s subsequent decision.
The unpublished decisions from lower state courts add
nothing to Volkswagen’s argument. Those decisions do
not satisfy Rule 10 and do not even have precedential effect in those states. See, e.g., Kingbird v. State, 949
N.W.2d 744, 749 (Minn. Ct. App. 2020); Watts v. Watts,
519 S.W.3d 572, 579 n.5 (Tenn. Ct. App. 2016). And like the
Alabama Supreme Court, they did little more than follow
the district court’s analysis here before the Ninth Circuit
ruled. See Minnesota, 2018 WL 6273103, at *7; Tennessee, 2019 WL 1220836, at *10. It is likely that those courts
also would revisit their decisions in light of the Ninth Circuit’s analysis. Cf. Minnesota, 2018 WL 6273103, at *10*13 (Smith, J., concurring in part and dissenting in part)
(finding no implied preemption). This “split” will thus resolve itself.5
Ultimately, Volkswagen is left with a conflict between
the Ninth Circuit and one state court of last resort, where
5
Given that the decisions agreeing with Volkswagen all came before the Ninth Circuit’s ruling but, as Volkswagen notes, two other
cases are pending (one in the Ohio Supreme Court, the other in the
Middle District of Florida), this is a particularly good candidate for
percolation. Should the Ohio Supreme Court or Eleventh Circuit disagree with the Ninth Circuit, that decision might provide a conflict
that actually satisfies Rule 10.
276878.1
25
the state court merely parroted the district court’s analysis here. That is thin gruel for this Court’s review.
D. This Is A Poor Vehicle To Address The Petition’s
Question
The petition should also be denied because this is a
poor vehicle to address the overbroad question it identifies. As discussed, this case does not involve a patchwork
of obligations. Nobody would be here if Volkswagen had
complied with one set of laws—those imposed by the
Clean Air Act and EPA’s regulations. To resolve this case,
therefore, the Court wouldn’t need to reach the distinct
issue of whether the Act preempts state laws seeking to
penalize updates that EPA approved.
Moreover, Volkswagen’s heavy reliance on the amount
of penalties at issue is premature. The Counties’ claims
were dismissed on the pleadings, and no penalties have
been ordered. The federal consent decree imposed only a
fraction of potential total liability. The outcome here
would likely be similarly measured.
II. THE NINTH CIRCUIT’S DECISION IS CORRECT
Without a meaningful split or sufficient practical or legal significance, Volkswagen’s petition reduces to error
correction. Cf. Pet. 22-34 (spending over half its argument
on the merits). That is no basis for this Court’s intervention, but there is no error in any event. The Ninth Circuit
correctly decided that the Act does not expressly or impliedly preempt the Counties’ anti-tampering claims.
Every aspect of its analysis was firmly rooted in the Act’s
text and this Court’s precedents.
A. The Ninth Circuit Correctly Understood The
Preemption Framework And The Act’s Structure
Volkswagen attacks the Ninth Circuit’s articulation of
the preemption doctrine and the Act’s structure. E.g., Pet.
22-24, 28. A faulty understanding of the framework, says
Volkswagen, led the court to reach the wrong answer. But
276878.1
26
it is Volkswagen who tries to twist the Act and the
preemption doctrine to reach the outcome it desires.
1. As the Ninth Circuit correctly explained, the gist of
the preemption doctrine is that “‘[i]f federal law imposes
restrictions or confers rights on private actors and a state
law confers rights or imposes restrictions that conflict
with the federal law, the federal law takes precedence and
the state law is preempted.’” Pet. App. 15a (quoting Garcia, 140 S. Ct. at 801).
In the Clean Air Act, Congress gave careful attention
to those state laws it wanted to preempt and those it
wanted to leave unaffected, with a plain tilt against
preemption. That deliberate structure matters because
every theory of preemption must be grounded in the text
rather than “a ‘freewheeling judicial inquiry into whether
a state statute is in tension with federal objectives.’” Garcia, 140 S. Ct. at 801 (citation omitted); see Pet. App. 4a,
15a-16a.
The Act recognizes that pollution control “is the primary responsibility of States and local governments.” 42
U.S.C. 7401(a)(3). To that end, Section 7416 instructs that,
except as provided in express preemption provisions,
“nothing in this chapter shall preclude or deny the right
of any State or political subdivision thereof to adopt or enforce” emissions standards. Section 7543(d) likewise provides that “[n]othing in this part shall preclude or deny to
any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or
movement of registered or licensed motor vehicles.” And
the Act’s various express preemption provisions show
that Congress carved out areas of exclusive federal control when it wanted to, including specific exemptions for
“manufacturers.” See, e.g., 42 U.S.C. 7541(h)(2), 7543(a),
(c), (e)(1).
276878.1
27
The upshot for this case, as the Ninth Circuit correctly
concluded (Pet. App. 22a-25a), is that “federal motor vehicle emission control standards apply only to new motor
vehicles, [and] States also retain broad residual power
over used motor vehicles.” Washington, 406 U.S. at 115
n.4.
2. Volkswagen’s request for error correction rests on
its own misunderstanding of the preemption doctrine and
the Act’s framework. The telling passage is its assertion
(at 28) that “state and local agencies have never had” authority to regulate car manufacturers. Before the Clean
Air Act, the Counties undoubtedly could enforce anti-tampering laws against car manufacturers. That is because
states’ police powers do not come from Congress. The
Counties thus need not show Congress authorized them
to sue; Volkswagen must show Congress intended to strip
them of that right. See Wyeth v. Levine, 555 U.S. 555, 565
n.3 (2009).
Volkswagen says Congress embedded that judgment
in the Act’s basic structure, preserving state law only regarding stationary sources, not mobile sources. Pet. 2223. Both Congress and this Court declared otherwise.
Volkswagen does not cite Section 7401(a)(3)—which expressly says that “air pollution control at its source is the
primary responsibility of States and local governments”—and regardless Volkswagen’s assertion is foreclosed by this Court’s statement that “States also retain
broad residual power over used motor vehicles.” Washington, 406 U.S. at 115 n.4.
Volkswagen’s criticisms of the Ninth Circuit’s framework further reveal its confusion, wrongly conflating express and implied preemption principles. Volkswagen
complains that the court “six times” invoked a “presumption against preemption,” whereas “this Court has al-
276878.1
28
ready declined to apply any such presumption in interpreting” Section 7543(a). Pet. 23 (emphasis in original).
But the Ninth Circuit did not employ any presumption in
interpreting Section 7543(a). See Pet. App. 15a, 28a-31a.
The court reserved that presumption for its obstacle
preemption analysis (id. at 15a-21a, 32a), exactly as this
Court instructs: “In all pre-emption cases, and particularly in those in which Congress has legislated in a field
which the States have traditionally occupied, we start with
the assumption that the historic police powers of the
States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”
Wyeth, 555 U.S. at 565 (cleaned up).
Once Volkswagen’s distortions of the framework are
set aside, its express and obstacle preemption arguments
collapse.
B. The Act Does Not Expressly Preempt The Counties’ Claims
Beginning with express preemption, Volkswagen argues that 42 U.S.C. 7543(a) preempts the anti-tampering
claims because they seek “to enforce any standard relating to the control of emissions from new motor vehicles.”
See Pet. 24-28. Volkswagen is “clearly” wrong. Pet. App.
30a; see Alabama, 279 So. 3d at 1119; Tennessee, 2019 WL
1220836, at *10; Minnesota, 2018 WL 6273103, at *6; Pet.
App. 65a-67a. Section 7543(a) precludes enforcing standards that relate to new cars; it therefore does not cover
the “post-sale vehicles” at issue here. Pet. App. 30a.
The court agreed with Volkswagen that a state cannot
circumvent Section 7543(a) by “‘impos[ing] its own emission control standards the moment after a new car is
bought and registered.’” Pet. App. 30a (quoting Allway
Taxi, 340 F. Supp. at 1124). Its point was that states cannot impose standards that would effectively require new
cars to be manufactured differently. See id. at 31a; Allway
276878.1
29
Taxi, 340 F. Supp. at 1124. The Counties’ anti-tampering
claims do not offend that principle because they “do not
require Volkswagen to comply with a local emission standard that is different from the federal standard, nor do they
impose a standard that would effectively require car manufacturers to alter their manufacture of new vehicles before sale.” Pet. App. 31a.
Volkswagen ignores that analysis when objecting that
the court “eliminates ‘relating to’ from the statute” and
ends preemption “at the point of initial sale.” Pet. 24-25.
The court acknowledged that some post-sale regulations
could fall within Section 7543(a), and applied the very
case—Allway Taxi—that Volkswagen invokes. Volkswagen counters that “relating to” should be interpreted
broadly (Pet. 24), but “the breadth of the words ‘related
to’ does not mean the sky is the limit.” Dan’s City Used
Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013). And
Volkswagen does not propose a plausible interpretation
that the Ninth Circuit missed. However broad “relating”
might be, it does not transform “new” into “old.”
Volkswagen asserts that “[t]he post-sale updates here
necessarily relate back to the cars’ original (noncompliant) software because the updates modified that factoryinstalled software.” Pet. 6. But that proves too much. Any
addition or modification will modify the original design.
Volkswagen’s interpretation of Section 7543(a) would encompass every repair shop or individual who changed the
car from its point-of-sale condition. The only difference
between a mechanic reducing hardware failures by tampering and Volkswagen reducing hardware failures by
tampering is the identity of the tamperer—a subject on
which Section 7543(a) is silent.
Volkswagen seeks not to interpret Section 7543(a) but
to rewrite it to include a manufacturer release. But when
Congress wanted to free “manufacturers” from state and
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local regulation, it did so explicitly. Section 7541(h) provides that states may not require a “new motor vehicle
manufacturer” to perform certain testing. And Section
7543(c) imposes preemption regarding “any motor vehicle
part or motor vehicle engine part” subject to regulation
under 42 U.S.C. 7541(a)(2), which in turn addresses certifications by a “manufacturer.” “Where Congress includes
particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Salinas v. U.S. R.R.
Retirement Bd., 141 S. Ct. 691, 698 (2021) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)); see Riegel
v. Medtronic, Inc., 552 U.S. 312, 327 (2008).
Contrary to Volkswagen’s assertion (at 27-28), EPA’s
enforcement history confirms that the Act does not distinguish between manufacturers and non-manufacturers
here. In practice, EPA enforces anti-tampering rules
against non-manufacturers far more often than against
manufacturers. E.g., EPA, 2018 Clean Air Act Enforcement Case Resolutions, www.epa.gov/enforcement/2018clean-air-act-vehicle-and-engine-enforcement-case-resolutions.6 And EPA has in fact recognized that any state is
“free to adopt and enforce an anti-tampering law on its
own, if it feels that such a law would contribute to reducing motor vehicle emissions.” 51 Fed. Reg. 10198-01,
10206 (Mar. 25, 1986).
At bottom, the best thing that can be said for
Volkswagen’s interpretation is that it “happens to fit this
case precisely, but it needs more than that to recommend
6
In one case, a seller of aftermarket products sold 363,000 defeat
devices nationwide. See EPA, Derive Systems Clean Air Act Settlement (Sept. 24, 2018), https://www.epa.gov/enforcement/derive-systems-clean-air-act-settlement.
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it.” Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 394
(2015). The Ninth Circuit’s decision is correct.
C. The Act Does Not Impliedly Preempt The Counties’ Claims
To show implied preemption, Volkswagen must
demonstrate that preempting the Counties’ anti-tampering claims “‘was the clear and manifest purpose of Congress.’” Wyeth, 555 U.S. at 565. This test sets “‘a high
threshold.’” Pet. App. 16a (quoting Chamber of Commerce
of U.S. v. Whiting, 563 U.S. 582, 607 (2011)). And that
manifest purpose must derive from the statutory text.
Pet. App. 15a-16a (citing Garcia, 140 S. Ct. at 804; CSX
Transp., 507 U.S. at 664); see Pet. App. 4a.
1. Volkswagen’s request for a “manufacturer,” “nationwide” exemption from state and local regulation (Pet.
28) does nothing more than “‘[i]nvok[e] some brooding
federal interest.’” Garcia, 140 S. Ct. at 801. The Act is
clear, however, that aside from express preemption,
states and localities retain their traditional authority in
this arena. Section 7416 says so expressly, providing that
“nothing in this chapter shall preclude or deny the right
of any State or political subdivision thereof to” enforce
emissions standards. And Section 7543(d) further demonstrates that Congress did not intend to displace state and
local regulation over tampering with in-use cars. The language of Sections 7416 and 7543(d) “might be described
as a non-preemption clause.” Virginia Uranium, Inc. v.
Warren, 139 S. Ct. 1894, 1902 (2019) (lead op. of Gorsuch,
J.) (emphasis in original). The import of these provisions
is that when Congress wished to displace state law, it said
so. Otherwise, it chose not to disturb states’ police power.
The Ninth Circuit invoked Section 7543(d) for this
very point. Pet. App. 33a-35a (“The language of
§ [7543](d) also indicates that Congress foresaw ‘the like-
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lihood of a continued meaningful role’ for state enforcement. * * * Congress’s ‘certain awareness of the prevalence of state’ law, coupled with its ‘silence on the issue,’
‘is powerful evidence that Congress did not intend’ to
preempt local anti-tampering laws.”) (citations omitted).
Although the court correctly apprehended the broad
scope of that clause vis-à-vis post-sale vehicles (id. at 24a25a), it did not rest its holding solely on a finding that the
Counties’ claims were expressly saved. Ibid.; see also id.
at 32a-35a (recognizing that “the existence of a saving
clause does not ‘foreclose or limit the operation of ordinary pre-emption principles’”) (citation omitted); contra
Pet. 28. Nor need it have done so. The Counties don’t have
to prove that their claims are saved. The burden is on
Volkswagen to meet the high threshold of showing that
the Act preempts those claims. And Section 7543(d)
(alongside Section 7416) shows that Congress preempted
state law only where it expressly chose to do so.
Volkswagen nonetheless (wrongly) criticizes the
Ninth Circuit’s interpretation of “operation” in Section
7543(d). Pet. 29-30. Volkswagen’s effort to equate “operation” with “use” has at least two fatal flaws: it reads “use”
out of the statute by making it redundant, and it means
that states also could not penalize mechanics who tamper,
for a mechanic isn’t “driving” the car. Id. at 29. To the extent Volkswagen proposes a broader definition—“the operating of or putting and maintaining in action of something (as a machine or an industry),” ibid.—it would encompass the situation here. Volkswagen tampered with
the cars to improve performance and reduce hardware
failures. Making a car run better or not break down meets
any reasonable definition of “operation.”
2. There is simply no textual basis for Volkswagen’s
core position—that Congress intended to preempt state
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anti-tampering laws relating to “manufacturer” or “nationwide” conduct. That limitation appears nowhere in the
federal anti-tampering rule. And that omission is telling
because, as noted supra pp. 29-30, other provisions of the
Act show that Congress knew how to prevent states from
regulating “manufacturer” conduct when it wanted to.
Volkswagen tries to import a manufacturer release by
pointing to EPA’s useful-life testing of vehicles and the
process through which manufacturers obtain EPA’s endorsement for post-sale changes. E.g., Pet. 31. This argument is a red herring for the simple reason that
Volkswagen admittedly evaded those regimes here. C.A.
E.R. 51, 53. In a mine-run case, where a manufacturer
worked with EPA to obtain approval for a post-sale update, the manufacturer would have strong preemption arguments—a state would likely impose an obstacle to Congress’s objectives, if not an outright conflict, by suing a
manufacturer for bringing its cars into compliance with
the Act. But that’s not what happened here. Volkswagen
did not comply with Congress’s statutory regime; it acted
outside of that process. It cannot credibly argue that state
law poses an obstacle to a statutory regime it evaded.
For the same reason, Volkswagen has no basis for arguing that “states and localities could potentially penalize
even modifications that EPA already approved, thereby
imposing conflicting regulatory guidance.” Pet. 31. The
Counties do not seek to do so, and the Ninth Circuit expressly distinguished that scenario. Pet. App. 37a n.22.
3. Volkswagen is also wrong that the Act’s tampering
penalties (42 U.S.C. 7524) demonstrate congressional intent to displace state and local anti-tampering rules. Pet.
32-33. This Court rejected a substantively identical argument last Term, holding that “the possibility that federal
enforcement priorities might be upset is not enough to
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provide a basis for preemption.” Garcia, 140 S. Ct. at 806807.
That conclusion carries equal force here, for
Volkswagen’s argument not only lacks textual grounding,
but would mean that federal law preempts all state and
local anti-tampering enforcement—whether against a nationwide emissions cheater or a local repair shop. The federal anti-tampering rule covers “any person,” not just new
vehicle manufacturers. 42 U.S.C. 7522(a)(3). And in practice, EPA regularly enforces anti-tampering rules against
non-manufacturers. Supra p. 30. If Volkswagen is correct,
then EPA’s judgment about the appropriate remedy to
seek would always represent the proper “congressional
calibration of force.” Pet. 33. So too would EPA’s decision
to forgo enforcement action in a given case—EPA would
have decided the violation does not warrant a penalty.
The unavoidable result of Volkswagen’s argument is
that federal law would preempt all state and local enforcement of any standard (anti-tampering or otherwise) that
EPA also could enforce. Yet Congress explicitly permitted states and localities to enforce such standards absent
express preemption. 42 U.S.C. 7416.
4. The same analysis defeats Volkswagen’s suggestion
that practical concerns—such as facilitating federal settlements with wrongdoers who act on a nationwide
scale—warrant obstacle preemption. Pet. 32-34. This argument merely repackages its incorrect belief that EPA
alone may penalize tampering. Regardless, preemptive
intent must derive from the statute. Where the text reveals no such intent, it cannot be manufactured for the
convenience of stakeholders in a given case. See Pet. App.
42a-45a. And the text in fact points the opposite way. Congress made clear that absent express preemption, it intended to preserve state and local law. 42 U.S.C. 7416; see
Washington, 406 U.S. at 115 n.4; 42 U.S.C. 7604(e).
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To the extent Volkswagen violated laws in multiple jurisdictions, thereby complicating the enforcement process
or creating massive exposure, that is only because its misconduct was so far-reaching. The extent of a manufacturer’s wrongdoing provides no principled basis for applying preemption. And engaging in especially egregious
misconduct is hardly a reason to immunize it.
In any event, Volkswagen’s alarmism is unwarranted:
it has incurred civil penalties of only approximately $2500
per car ($1.45 billion for 585,000 cars, see Pet. App. 7a), a
fraction of its per-car revenue and the maximum per-car
tampering penalty available under Section 7524. Indeed,
Volkswagen faced at least tens of billions more in total
federal liability. It offers no reason to think that states
and localities would attempt to bankrupt Volkswagen rather than seek measured penalties as did the federal government.
This issue, moreover, is a question of the remedy, not
a question of states’ and localities’ ability to sue in the first
instance. Although Volkswagen’s actions were aberrant,
corporate misconduct that violates federal, state, and local
law is not uncommon. Courts are equipped to temper inappropriately punitive liability (however remote that possibility may be) through due process and other protections against excessive fines.
5. Finally, Volkswagen’s “fraud on EPA” theory is
frivolous. Pet. 34. The Counties do not seek to penalize
any statement to EPA; they seek to penalize
Volkswagen’s emissions tampering. Their claims would be
identical even if Congress had never created EPA.
CONCLUSION
The petition for a writ of certiorari should be denied.
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Respectfully submitted.
BRIDGET C. ASAY
STRIS & MAHER LLP
28 Elm Street, 2d Floor
Montpelier, VT 05602
PETER K. STRIS
Counsel of Record
RACHANA A. PATHAK
DOUGLAS D. GEYSER
JOHN STOKES
STRIS & MAHER LLP
777 S. Figueroa Street
Suite 3850
Los Angeles, CA 90017
(213) 995-6800
pstris@stris.com
Counsel for Respondents
COLIN P. KING
PAUL M. SIMMONS
DEWSNUP KING OLSEN
WOREL HAVAS
MORTENSEN
36 S. State Street,
Suite 2400
Salt Lake City, UT 84111
W. DANIEL “DEE” MILES, III
LESLIE PESCIA
BEASLEY, ALLEN, CROW,
METHVIN, PORTIS &
MILES, P.C.
218 Commerce Street
Montgomery, AL 36104
Counsel for Salt Lake
County, Utah
Counsel for The Environmental Protection Commission of
Hillsborough County, Florida
MARCH 2021
276878.1
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.