Amicus Curiae Brief — Volkswagen Aktiengesellschaft, et al., Petitioners v. Ohio, ex rel. Dave Yost, Attorney General
Supreme Court briefSep 30, 2021
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No. 21-312
IN THE
Supreme Court of the United States
___________
VOLKSWAGEN AKTIENGESELLSCHAFT, ET AL.,
Petitioners,
v.
STATE OF OHIO EX REL. DAVE YOST, ATTORNEY
GENERAL,
Respondent.
___________
On Petition for a Writ of Certiorari to the
Supreme Court of Ohio
___________
BRIEF AMICI CURIAE OF INTERNATIONAL
ORGANIZATION OF MOTOR VEHICLE
MANUFACTURERS, EUROPEAN
AUTOMOBILE MANUFACTURERS’
ASSOCIATION, AND EUROPEAN
ASSOCIATION OF AUTOMOTIVE SUPPLIERS
IN SUPPORT OF PETITIONERS
___________
CARTER G. PHILLIPS*
JACQUELINE G. COOPER
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
cphillips@sidley.com
Counsel for Amici Curiae
September 30, 2021
* Counsel of Record
CHELSEA A. PRIEST
SIDLEY AUSTIN LLP
2021 McKinney Avenue
Suite 2000
Dallas, TX 75201
(214) 981-3300
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICI CURIAE ..........................
1
SUMMARY OF ARGUMENT ..............................
3
ARGUMENT .........................................................
5
I. THE AUTOMOTIVE INDUSTRY IS CRITICAL TO THE GLOBAL ECONOMY ............
6
II. HARMONIZATION OF STANDARDS AND
ENFORCEMENT IS CRITICAL TO THE
GLOBAL AUTO INDUSTRY........................
8
A. The European Union................................
9
B. The UN/ECE World Forum For Harmonization Of Vehicle Regulations (WP.29) ...
15
C. The EU And UN Systems, Like The U.S.
System For Regulating Vehicle Emissions, Are Based On The Principle Of
Accountability To A Single Regulator .....
20
III. THE SUPREME COURT OF OHIO’S DECISION THREATENS TO UNDERMINE
REGULATORY HARMONIZATION AND
CAUSE MASSIVE DISRUPTION IN THE
GLOBAL AUTO INDUSTRY........................
21
CONCLUSION .....................................................
25
(i)
ii
CASES
TABLE OF AUTHORITIES
Page
Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363 (2000) ............................................. 23
STATUTES
42 U.S.C. § 7507 ....................................................... 3
§ 7543(b) ................................................... 3
§ 7543(d) ................................................. 21
INTERNATIONAL REGULATIONS
Commission Regulation 2017/1151, 2017 O.J.
(L 175), https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32017R
1151&from=EN ................................................... 12
Commission Regulation 2018/858, 2018 O.J.
(L 151), https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32018R
0858&from=en ..............................................passim
Commission Regulation 2019/253, 2019 O.J.
(L 45),
https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:42019X
0253&from=EN ................................................... 17
Council Directive 70/156/EEC, 1970 O.J.
(L 42),
https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX: 31970L
0156&from=EN ..................................................... 9
iii
TABLE OF AUTHORITIES—continued
INTERNATIONAL MATERIALS
Page
European Parliament Directorate General for
Internal Policies, Policy Department A: Economic and Scientific Policy, Comparative
Study on the Differences Between the EU
and US Legislation on Emissions in the
Automotive Sector, Doc. No. IP/A/EMIS/
2016-02, PE 587.331 (Dec. 2016), https://
www.europarl.europa.eu/RegData/etudes/
STUD/2016/587331/IPOL_STU(2016)587
331_EN.pdf ................................................... 13, 24
European Parliament Directorate General for
Internal Policies, Policy Department A:
Economic and Scientific Policy, Legal
Obligations Relating to Emission Measurements in the EU Automotive Sector, Doc.
No. IP/A/EMIS/2016-02, PE 578.996 (June
2016), https://www.europarl.europa.eu/
RegData/etudes/STUD/2016/578996/IPOL
_STU(2016)578996_EN.pdf .......................... 12, 13
U.N. Economic and Social Council, Status of
the Agreement, of the Annexed UN Regulations and of Amendments Thereto, U.N. Doc.
ECE/TRANS/WP.29/343/Rev.29 (Feb. 24,
2021), https://unece.org/sites/default/files/
2021-02/ECE-TRANS-WP.29-343-Rev.29.pdf...... 16
U.N. Economic and Social Council, Status of
the Agreement, of the Global Registry and of
the Compendium of Candidates, U.N. Doc.
ECE/TRANS/WP.29/1073/Rev.30 (June 16,
2021), https://unece.org/sites/default/files/
2021-06/ECE-TRANS-WP29-1073-Rev30e.
pdf ........................................................................ 19
iv
TABLE OF AUTHORITIES—continued
Page
U.N. Economic Commission for Europe,
Addendum 155 – UN Regulation No. 156:
Uniform Provisions Concerning the Approval
of Vehicles with Regards to Software Update
and Software Updates Management System,
U.N. Doc. E/ECE/TRANS/505/Rev.3/Add.155
(Mar. 4, 2021), https://unece.org/sites/default/
files/2021-03/R156e.pdf ....................................... 17
U.N. Economic Commission for Europe, World
Forum for Harmonization of Vehicle Regulations (WP.29): How It Works – How to Join
It, U.N. Doc. ECE/TRANS/289 (4th ed.
2019), https://unece.org/sites/default/files/
2020-12/WP29-BlueBook-4thEdition2019Web_0.pdf ................................................ 15, 16, 18
U.N. Global Registry, Addendum 19: Global
Technical Regulation No. 19 on the
EVAPorative Emission Test Procedure for
the Worldwide Harmonized Light Vehicles
Test Procedure (WLTP EVAP), U.N. Doc.
ECE/TRANS/180/Add. 19 (Aug. 25, 2017),
https://unece.org/fileadmin/DAM/trans/main/
wp29/wp29wgs/wp29gen/wp29registry/ECE
-TRANS-180a19e.pdf........................................... 19
v
TABLE OF AUTHORITIES—continued
INTERNATIONAL AGREEMENTS
Page
Agreement Concerning the Adoption of Harmonized Technical United Nations Regulations for Wheeled Vehicles, Equipment and
Parts Which Can Be Fitted and/or Used on
Wheeled Vehicles and the Conditions for
Reciprocal Recognition of Approvals Granted
on the Basis of These United Nations
Regulations, U.N. Doc. E/ECE/TRANS/505/
Rev. 3 (Oct. 20, 2017), https://unece.org/
fileadmin/DAM/trans/main/wp29/wp29regs/
2017/E-ECE-TRANS-505-Rev.3e.pdf...... 15, 16, 17
Agreement Concerning the Establishing of
Global Technical Regulations for Wheeled
Vehicles, Equipment and Parts Which Can
Be Fitted and/or Be Used on Wheeled
Vehicles, U.N. Doc. ECE/TRANS/132 (June
25, 1998), https://unece.org/DAM/trans/
main/wp29/wp29wgs/wp29gen/wp29glob/
tran132.pdf.......................................................... 18
OTHER AUTHORITIES
ACEA, The Automobile Industry Pocket Guide
2020/2021 (July 2020), https://acea.be/
uploads/publications/ACEA_Pocket_Guide_
2020-2021.pdf ........................................................ 6
ACEA, EU-US Automobile Trade: Facts and
Figures (Mar. 2019), https://www.acea.auto/
files/EU-US_automobile_trade-facts_figures.
pdf .......................................................................... 7
ACEA, Facts About the Automobile Industry,
https://www.acea.auto/fact/facts-about-theautomobile-industry (last visited Sept. 27,
2021) .................................................................. 6, 7
vi
TABLE OF AUTHORITIES—continued
Page
All. for Auto. Innovation, The Industry,
https://www.autosinnovate.org/initiatives/
the-industry (last visited Sept. 27, 2021) ............. 7
Ctr. for Auto. Research, Potential Cost Savings
and Additional Benefits of Convergence of
Safety Regulations Between the United
States and the European Union (July 2016),
https://www.cargroup.org/wp-content/
uploads/2017/02/Potential-Cost-Savingsand-Additional-Benefits-of-Convergence-ofSafety-Regulations-between-the-UnitedStates-and-the-European-Union.pdf ..................... 9
Global Automotive Industry Revenue Between
2017 and 2030, Statista (June 2019), https://
www.statista.com/statistics/574151/globalautomotive-industry-revenue ............................... 6
Int’l Org. of Motor Vehicle Mfrs., Worldwide
Harmonization,
https://www.oica.net/
category/worldwide-harmonization/ (last
visited Sept. 27, 2021) ....................................... 8, 9
Michael Schultz et al., Ctr. for Auto. Research,
U.S. Consumer & Economic Impacts of U.S.
Automotive Trade Policies (Feb. 2019), https://
www.cargroup.org/wp-content/uploads/2019/
02/US-Consumer-Economic-Impacts-of-USAutomotive-Trade-Policies-.pdf ........................ 7, 8
INTEREST OF AMICI CURIAE 1
Amici curiae are trade associations that serve the
global automotive industry. International Organization
of Motor Vehicle Manufacturers (“OICA”) is a world
association founded in 1919 whose members are 36
national/regional trade associations, representing all
major automobile manufacturing countries in Europe,
America, and Asia. It includes member trade
associations that represent large exporters to U.S.
markets, including among others Japan Automobile
Manufacturers Association (“JAMA”), Germany’s
Verband der Automobilindustrie (“VDA”), Korea
Automobile Manufacturers Association (“KAMA”),
Italy’s Associazione Nazionale Filiera Industria
Automobilistica (“ANFIA”), and the United Kingdom’s
Society of Motor Manufacturers and Traders
(“SMMT”). The European Automobile Manufacturers’
Association (“ACEA”) is also a member.
OICA is the only non-governmental car and truck
manufacturers’ organization accredited to the United
Nations, and OICA represents the technical interests
of its members before international institutions and
organizations. It coordinates the global harmonization
of vehicle regulations. The member national
associations are committed to the improvement of road
safety and environmental protection, and they actively
1 Pursuant to Supreme Court Rule 37, amici state that no
counsel for any party authored this brief in whole or in part, and
that no entity or person other than amici and their counsel made
any monetary contribution toward the preparation and
submission of this brief. The parties were provided with timely
notice of amici’s intent to file this brief pursuant to Rule 37.2(a).
Petitioners filed a blanket consent to the filing of amicus curiae
briefs and respondent has consented to the filing of this brief.
2
contribute to the global harmonization of technical
regulations and standards.
The
European
Automobile
Manufacturers’
Association (“ACEA”) is the trade association that
represents the 15 major European-based car, van,
truck, and bus makers. ACEA’s activities include
defining and advocating the common interests,
policies, and positions of the European automobile
industry. ACEA also engages in dialogue with the
European institutions and other stakeholders in order
to advance understanding of industry-related issues
and to contribute to effective policy and legislation at
both European and global levels, and acts as a portal
for expert knowledge on vehicle-related regulation.
The European Association of Automotive Suppliers
(“CLEPA”), founded in 1959, is the voice of European
automotive suppliers, representing more than 3,000
companies that supply all products and services within
the automotive supply chain. Its mission includes
supporting the European Union and UN decisionmaking process and shaping the legislation impacting
the automotive business; being a credible partner for
the EU institutions and the UN authorities; and
ensuring coherent and consistent development of
international trade and global technical harmonization.
This case is significant to amici because the global
automotive companies that they represent are
substantial suppliers of vehicles and vehicle
components to U.S. markets. The manufacturers make
post-sale updates to their products as a routine part of
their business. With respect to vehicle emission
systems, amici and their members have relied on the
longstanding U.S. policy that the United States
Environmental Protection Agency (“EPA”) is the
3
exclusive regulator of such post-sale updates. 2 Under
the Supreme Court of Ohio’s decision, however, the
manufacturers will face the prospect of regulation and
enforcement actions by thousands of state and local
governments, which may impose conflicting
requirements based on unpredictable local preferences
and priorities.
This lack of national uniformity would be
unprecedented in amici’s experience. If allowed to
stand, the decision below will create intolerable risks
and boundless potential liability for vehicle
manufacturers, confusion and harm to U.S. consumers
who will pay the increased costs generated by
uncertainty, and adverse impacts on international
trade—without any clear countervailing benefit to
environmental protection. For all of these reasons,
amici have a substantial interest in this Court
granting review of the decision below. Amici also filed
a brief in support of the petition in Volkswagen Group
of America, Inc. v. EPC of Hillsborough County, No.
20-994 (U.S. Feb. 16, 2021).
SUMMARY OF ARGUMENT
The question presented is of critical importance to
the automotive industry, consumers and U.S. trade
interests.
I. The automotive industry is a vital component of
the global economy and plays an essential role in
international trade. As a worldwide industry, it is a
major force in global markets and brings immense
benefits to U.S. manufacturers and U.S. consumers.
2 U.S. law also allows California, with EPA approval, to set
certain standards, and other states to adopt those standards. See
42 U.S.C. §§ 7543(b), 7507.
4
II. Harmonization of technical standards and
enforcement is critical to the global auto industry
because manufacturers sell their products to
numerous countries with potentially divergent
regulations. As a result, international efforts to
achieve harmonization of vehicle regulations have long
been recognized as important and have played a vital
part in promoting the widespread availability of motor
vehicles throughout the world. Illustrative of these are
the work of the European Union and the United
Nations. Both have developed frameworks that are
based on the concepts of (1) uniformly-adopted
technical regulations, and (2) reciprocal recognition
systems under which a single approval authority is
responsible for regulating manufacturers from initial
application through the life of the vehicle.
These approaches provide a useful comparison to the
U.S. solution for addressing potential conflicts among
federal, state, and local regulators in the area of
vehicle emission systems: federal preemption that
centralizes regulation and enforcement in EPA. While
the governmental approaches differ, they share the
common goal of a single regulatory standard
interpreted and enforced by a single governmental
authority.
III. The Supreme Court of Ohio’s decision
threatens to undermine regulatory harmonization
because it abandons the principle of a single
regulatory standard enforced by a single regulator.
Instead, global auto manufacturers face the
unprecedented situation of being subject to regulation
and enforcement actions by thousands of state and
local governments with different views, approaches,
and priorities.
If the Supreme Court of Ohio’s decision is allowed to
stand, the resulting regulatory patchwork would cause
5
myriad adverse effects on manufacturers, consumers,
and the environment. Manufacturers would face
staggering potential liability; consumers would face
confusion, higher vehicle prices, and restricted vehicle
choices; and the environment would suffer as
manufacturers may avoid or delay improving their
emission systems. Global manufacturers also fear that
regulation by multiple state and local regulators could
give rise to discrimination and arbitrary enforcement,
which is avoided when EPA serves as the United
States’ exclusive regulator.
The petition should be granted.
ARGUMENT
Petitioners amply demonstrate that the Supreme
Court of Ohio’s decision conflicts with final decisions
of several state courts and that the federal Clean Air
Act (“CAA”) preempts respondent’s claims. See Pet.
15-18, 24-34. Amici will not repeat those arguments
here. Instead, amici submit this brief to support
petitioners’ arguments that the question presented is
exceptionally important and of critical significance to
the automotive industry both here and abroad. See id.
at 18-24. Amici agree with petitioners’ arguments that
the decision below will disrupt the industry. Amici
write separately in order to underscore the importance
of the question presented to the global automotive
manufacturing industry and community. They provide
their perspective that the harmful effects of the
Supreme Court of Ohio’s decision—if allowed to
stand—will extend to all U.S. and non-U.S. members
of the auto industry and will adversely impact the
United States’ international trade.
6
I. THE AUTOMOTIVE INDUSTRY IS CRITICAL TO THE GLOBAL ECONOMY.
To provide background and context for the analysis
that follows, it is helpful to understand the importance
of the auto industry to the global economy and its vital
role in the United States’ trade with other countries.
The auto industry is a major force in the world
economy. Global auto industry revenue has been
projected to reach nearly $9 trillion in 2030. 3 In 2019,
approximately 92 million motor vehicles were
produced worldwide. 4 China is the world’s largest
producer (28.2% market share in 2019), followed by
Europe (23.8%), North America (18.2%), and
Japan/Korea (14.4%). 5 For numerous countries in the
world, including the United States, the auto industry
is a major source of employment, tax revenue, and
technology investment.
With respect to the European Union (“EU”), the auto
sector accounts for 7% of the EU’s GDP, and includes
226 vehicle assembly and production plants that
produce 18.5 million vehicles per year. 6 This sector
accounts for 6.7% of all EU jobs, and 11.5% of EU
manufacturing jobs. 7 The EU’s number one investor in
3 See Global Automotive Industry Revenue Between 2017 and
2030, Statista (June 2019), https://www.statista.com/statistics/
574151/global-automotive-industry-revenue.
4 ACEA, The Automobile Industry Pocket Guide 2020/2021, at
15 (July 2020), https://acea.be/uploads/publications/ACEA_Pocket_
Guide_2020-2021.pdf.
5 Id.
6 See ACEA, Facts About the Automobile Industry, https://www.
acea.auto/fact/facts-about-the-automobile-industry (last visited
Sept. 27, 2021).
7 Id.
7
research and development is the
responsible for 29% of such spending. 8
auto
sector,
Because the auto industry is worldwide in scope, it
plays a vital role in international trade with the
United States. The United States is a principal
destination for vehicles and vehicle components
produced in other countries. In 2017, for example, the
dollar value of vehicles and vehicle parts imported into
the United States was over $340 billion, and 48% of all
vehicles sold in the United States were imported. 9
Correspondingly, the United States exports vehicles
and parts to 213 countries, and such exports totaled
more than $90 billion in 2020. 10
With respect to the EU, the EU auto industry
accounts for approximately 8% of total trade between
the EU and the United States. 11 The United States is
the number one destination for EU-built cars,
accounting for 29% of the total EU export value in
2018. 12 Correspondingly, 19% of the total value of U.S.
car exports heads for the EU. 13
8 Id.
9 Michael Schultz et al., Ctr. for Auto. Research, U.S. Consumer
& Economic Impacts of U.S. Automotive Trade Policies 3 (Feb.
2019) (hereinafter CAR Report), https://www.cargroup.org/wpcontent/uploads/2019/02/US-Consumer-Economic-Impacts-of-USAutomotive-Trade-Policies-.pdf.
All. for Auto. Innovation, The Industry, https://www.
autosinnovate.org/initiatives/the-industry (last visited Sept. 27,
2021).
10 See
11 See ACEA, EU-US Automobile Trade: Facts and Figures 1
(Mar. 2019), https://www.acea.auto/files/EU-US_automobile_
trade-facts_figures.pdf.
12 Id.
13 Id.
8
U.S. automakers benefit immensely from this trade.
In addition to the sales revenue from exports, trade
“enables the U.S. automotive and parts industries to
be globally competitive. Because of international
commerce, the U.S. industry can specialize in areas
where it has a comparative advantage and achieve
greater economies of scale.” 14 U.S. consumers likewise
benefit from this trade, “both because there is a
greater selection of models in the market, and because
trade helps to keep new vehicles affordable.” 15
II. HARMONIZATION OF STANDARDS AND
ENFORCEMENT IS CRITICAL TO THE
GLOBAL AUTO INDUSTRY.
Global auto manufacturers face a fundamental
challenge in operating their businesses. Mass
production and global sales are critical to their
economic success, but they “are faced with a wide
variety of different regulations in different countries,
often aimed at achieving the same purpose, but
differing for historical reasons.” 16 Because it is not
feasible for manufacturers to produce different
versions of their products (or different versions of postsale modifications) for a multitude of different
markets, “[h]armonization of vehicle regulations is
important to the Auto Industry.” 17 It also benefits
consumers because regulatory harmonization results
in efficiencies and costs savings that yield “lower costs
14 CAR Report, supra note 9, at 5.
15 Id. (noting that in 2017, 117 vehicle models were produced in
the United States, but 354 were available to consumers).
16 Int’l Org. of Motor Vehicle Mfrs., Worldwide Harmonization,
https://www.oica.net/category/worldwide-harmonization/ (last
visited Sept. 27, 2021).
17 Id.
9
and prices and a wider choice of vehicles available to
all consumers.” 18
To understand the potential impacts of the Supreme
Court of Ohio’s decision, it is helpful to examine some
of the international efforts to achieve harmonization of
vehicle regulations, and how those compare to the
analogous U.S. approach of creating uniformity within
the United States by preempting state and local
regulation.
A. The European Union.
As far back as 1970, the European Economic
Community (predecessor to the European Union)
recognized that applying different technical
requirements to vehicle manufacturers “hinder[s]
trade.” 19 As a result, the European Communities
enacted Directive 70/156/EEC, which “introduce[d] a
Community type-approval procedure for each vehicle
type.” 20 This procedure allowed Member States to
grant type-approval to vehicles, which other Member
States would reciprocally recognize, thereby avoiding
18 Id. A 2016 report estimated that regulatory divergence in
safety regulations between the United States and the European
Union alone cost manufacturers between $3.3 billion and $4.2
billion in 2014. Ctr. for Auto. Research, Potential Cost Savings and
Additional Benefits of Convergence of Safety Regulations Between
the United States and the European Union, at ii, 10-11 (July 2016),
https://www.cargroup.org/wp-content/uploads/2017/02/PotentialCost-Savings-and-Additional-Benefits-of-Convergence-of-SafetyRegulations-between-the-United-States-and-the-European-Union.
pdf. That amount does not include the additional cost of
complying with divergent emission regulations, which “could be
50 percent or more of the total compliance cost.” Id. at v, 23.
19 Council Directive 70/156/EEC, pmbl., 1970 O.J. (L 42), https://
eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:
31970L0156&from=EN.
20 Id.
10
the need for manufacturers to obtain multiple
approvals in different countries. The system has
evolved over the years, becoming more detailed and
centralized with each amendment, but the basic
principles of type-approval and reciprocal recognition
have endured as a way to achieve harmonization. The
most recent version of the EU’s harmonized typeapproval process is reflected in EU Regulation
2018/858, which went into effect in September 2020. 21
Regulation 2018/858 is designed to “improve the
enforcement of the framework for type-approval by
harmonising and enhancing the type-approval
procedures and conformity of production procedures
applied by Member States’ authorities.” 22 A critical
component of the EU’s harmonization has been
adoption of the same technical regulations applicable
in all Member States. But merely adopting the same
technical regulations was deemed insufficient to
ensure harmonization and minimize regulatory
divergence costs. The EU therefore also adopted a
type-approval reciprocal recognition system under
which a single approval authority (sometimes with
oversight from the European Commission) is
responsible for regulating manufacturers from initial
application through the life of the approved vehicle.
Thus, each Member State appoints an “approval
authority” responsible for analyzing applications and
21 Commission Regulation 2018/858, 2018 O.J. (L 151), https://
eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:
32018R0858&from=en. “Type-approval” is “the procedure whereby
an approval authority certifies that a type of vehicle, system,
component or separate technical unit satisfies the relevant
administrative provisions and technical requirements.” Id. art.
3(1).
22 Id. pmbl. (4).
11
granting type-approvals. 23 A manufacturer can choose
to apply to any Member State’s approval authority, but
it need apply to only one. If the vehicle that is the
subject of the application complies with EU
regulations, the approval authority grants typeapproval. 24 Then, all other Member States must
recognize that type-approval. 25 As a result, a vehicle
manufacturer need only undergo testing and obtain
approval from a single country, rather than incur the
time and expense of repeating the process in multiple
countries. Centralized approval of vehicles in a single
Member State also avoids situations in which
countries impose different interpretations of the same
regulation, which might require a manufacturer to
make changes to vehicles sold in different countries.
The approving Member State’s obligations do not,
however, end with granting type-approval. The EU
recognized the importance of a single regulator
retaining responsibility. Thus, the approving
authority is responsible for ensuring compliance with
regulations throughout the life of the vehicle. For
example, the approving authority must enforce
conformity of production requirements—the vehicles,
systems, or components actually produced must
conform to the type of vehicle as was submitted to the
approval authority and approved by that entity. 26 If
the manufacturer fails to maintain conformity of
production, as determined by the approval authority,
it is only that approval authority’s obligation to
require corrective action or withdraw the approval.
23 Id. art. 7.
24 See id. arts. 6-7.
25 See id. art. 6.
26 Id. art. 31.
12
The manufacturer must also “inform the authority
that has approved its type of vehicle of any changes to
the characteristics of the type,” 27 and only that
authority is responsible for any amendments to the
approval. 28 Further, the approving authority is
responsible for ensuring in-service conformity of
approved vehicles, i.e., that approved and produced
vehicles remain in compliance with applicable
regulations throughout their useful lives. 29
In fact, until September 2020, Member States had
practically no ability to second-guess or review a typeapproval issued by a different Member State, whether
pre- or post-sale. This served important objectives of
the system because different Member States have
interpreted the same EU vehicle regulations in
different ways, 30 and it would defeat the purposes of
harmonization if a manufacturer had to satisfy every
27 Id. pmbl. (43).
28 Id. art. 33.
29 See Commission Regulation 2017/1151, art. 9, 2017 O.J. (L
175), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=
CELEX:32017R1151&from=EN.
30 European Parliament Directorate General for Internal
Policies, Policy Department A: Economic and Scientific Policy,
Legal Obligations Relating to Emission Measurements in the EU
Automotive Sector, at 39-40, Doc. No. IP/A/EMIS/2016-02, PE
578.996 (June 2016) (hereinafter Legal Obligations), https://
www.europarl.europa.eu/RegData/etudes/STUD/2016/578996/
IPOL_STU(2016)578996_EN.pdf (“Although the 28 typeapproval authorities are coordinated within a type-approval
authority expert group at European level, the national
frameworks for the activities of the technical services vary for a
number of reasons, including differences in the interpretation of
the European provisions. . . . This may result in major disparities
in the design and quality of testing within the same European
type-approval process . . . .”).
13
Member State’s differing interpretation of the same
regulation. At the same time, the EU recognized that
allowing a single Member State’s interpretation to
govern approval throughout the EU incentivized
manufacturers to flock to Member States with less
strict interpretation and enforcement for their typeapprovals. 31 Other Member States were largely
unwilling or unable to take action, which in turn
discouraged Member States from operating market
surveillance programs intended to identify noncompliance. 32
Regulation 2018/858 was an attempt to balance
those competing interests by ensuring that vehicle
regulations are properly enforced, while at the same
time preserving the principle that a manufacturer is
bound by only a single regulatory interpretation
applicable throughout the EU. To accomplish that
goal, the EU instituted a “compliance verification”
program in which the Commission occasionally
conducts its own testing to validate that vehicles with
type-approval are in compliance. 33 Additionally, all
Member States must now appoint “market
31 European Parliament Directorate General for Internal
Policies, Policy Department A: Economic and Scientific Policy,
Comparative Study on the Differences Between the EU and US
Legislation on Emissions in the Automotive Sector, at 10, Doc. No.
IP/A/EMIS/2016-02, PE 587.331 (Dec. 2016) (hereinafter
Comparative Study), https://www.europarl.europa.eu/RegData/
etudes/STUD/2016/587331/IPOL_STU(2016)587331_EN.pdf
(“[M]anufacturers make maximum use of permitted flexibilities;
and exploit the scope for choosing type approval authorities they
perceive to be more favourable.”); id. at 32 (describing EU’s
previous system of “little or no central oversight” as “a key
weakness of the EU system”).
32 Legal Obligations, supra note 30, at 33.
33 EU Regulation 2018/858, art. 9.
14
surveillance authorities” with the duty to “carry out
regular checks to verify that vehicles, systems,
components and separate technical units comply with
the relevant requirements.” 34
These additional enforcement mechanisms bolster
regulatory compliance, but do not alter the regulatory
harmonization and reciprocal recognition principles
that are at the core of the EU system. If a Member
State that did not grant the type-approval discovers a
violation or non-compliance, it has limited authority to
demand corrective action or even refuse to recognize
that approval. And even then, it can exercise such
authority only temporarily, while the Member State
that granted the type-approval considers what action,
if any, to take. 35 It remains the case that only the
Member State granting the type-approval retains the
authority to withdraw the type-approval. 36 If there is
a dispute between Member States about a vehicle’s
compliance, the European Commission settles the
dispute, and its determination is binding on all
Member States. 37
By adhering to the principles of regulatory
harmonization and reciprocal recognition, through the
entire life of the vehicle, the EU system minimizes
regulatory divergence and enforcement costs. It also
ensures that manufacturers are subject only to a
single regulator and a single interpretation of
regulations, recognizing that it makes sense for the
same authority both to approve the initial design and
to decide whether the design continues to comply with
34 Id. art 8(1).
35 See id. ch. XI.
36 Id. art. 54(2).
37 See id. art. 54(3)-(5).
15
applicable regulations throughout the vehicle’s useful
life.
B. The
UN/ECE
World
Forum
For
Harmonization Of Vehicle Regulations
(WP.29).
The EU is not the only multi-national organization
that has recognized the value of regulatory
harmonization in the automotive industry and taken
steps to achieve it. The United Nations, through the
UN/ECE World Forum for Harmonization of Vehicle
Regulations (WP.29), recognizes that “international
harmonization through UN Regulations and UN
[Global Technical Regulations (GTRs)] concerning the
construction and functioning of motor vehicles is an
essential factor in reducing the regulatory costs for all
manufacturers and enhancing competitiveness.” 38
Accordingly, the UN has adopted and implemented
regulations designed to achieve that goal.
The cornerstone of the UN’s vehicle regulation
harmonization work is the Agreement Concerning the
Adoption of Harmonized Technical United Nations
Regulations for Wheeled Vehicles, Equipment and
Parts Which Can Be Fitted and/or Used on Wheeled
Vehicles and the Conditions for Reciprocal Recognition
of Approvals Granted on the Basis of These United
Nations Regulations (“the 1958 Agreement”). 39 The
1958 Agreement “was originally designed to facilitate
38 U.N.
Economic Commission for Europe, World Forum for
Harmonization of Vehicle Regulations (WP.29): How It Works –
How to Join It, at 125, U.N. Doc. ECE/TRANS/289 (4th ed. 2019)
(hereinafter Bluebook), https://unece.org/sites/default/files/202012/WP29-BlueBook-4thEdition2019-Web_0.pdf.
39 U.N. Doc. E/ECE/TRANS/505/Rev. 3 (Oct. 20, 2017)
(hereinafter 1958 Agreement), https://unece.org/fileadmin/DAM/
trans/main/wp29/wp29regs/2017/E-ECE-TRANS-505-Rev.3e.pdf.
16
the free movement and sale of wheeled vehicles across
State borders within the region of Europe,” by
“reduc[ing] the burden of repetitive regulatory testing
and certifications.” 40 After its adoption, amendments
“expand[ed] its scope of activities” even further and
“attract[ed] the participation of countries outside the
original European region, i.e. from other parts of the
world.” 41 The 1958 Agreement currently has nearly 60
Contracting Parties, representing countries spanning
the globe, and has spawned over 150 Regulations. 42
Under the 1958 Agreement, UN Regulations
establish applicable standards, which automatically
enter into force for each Contracting Party, absent a
timely objection. 43 Any Contracting Party enforcing
the UN Regulation may grant relevant “typeapprovals” with respect to that Regulation. Similar to
the EU’s system, other Contracting Parties applying
the UN Regulation must then grant reciprocal
recognition of that approval. 44
Importantly for purposes of the question presented
in the petition, the country that grants the typeapproval is also responsible for post-approval
regulation, including, for example, conformity of
production procedures and in-service compliance
40 Bluebook, supra note 38, at 18.
41 Id.
42 U.N. Economic and Social Council, Status of the Agreement,
of the Annexed UN Regulations and of Amendments Thereto, at
10-19, 42, U.N. Doc. ECE/TRANS/WP.29/343/Rev.29 (Feb. 24,
2021), https://unece.org/sites/default/files/2021-02/ECE-TRANSWP.29-343-Rev.29.pdf.
43 Bluebook, supra note 38, at 8-9.
44 Id. at 9; see 1958 Agreement, supra note 39, art. 3.
17
tests. 45 If a Contracting Party identifies any noncompliance, it must “advise the approval authority of
the Contracting Party which issued the approval,” and
it is the latter approval authority that must “take the
necessary steps to ensure that the non-conformity is
rectified.” 46
UN Regulations even contemplate coverage of postsale software updates. A recently implemented UN
Regulation provides for the type-approval of Software
Update Management Systems. 47 As part of that typeapproval, the manufacturer must have a process in
place by which it identifies whether a software update
will affect a previously type-approved system. 48 If a
modification affects technical performance and/or
required documentation, the manufacturer must
notify the approval authority that originally granted
the type-approval, and that authority takes
appropriate action, including issuing an extension of
approval if necessary. 49
The 1958 Agreement has been a boon to vehicle and
vehicle component manufacturers, as it has eliminated
the need to receive approval from multiple authorities
45 1958 Agreement, supra note 39, art. 2(1); Commission
Regulation 2019/253, sec. 9, 2019 O.J. (L 45), https://eur-lex.
europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:42019X0253
&from=EN.
46 1958 Agreement, supra note 39, art. 4(1).
47 U.N. Economic Commission for Europe, Addendum 155 – UN
Regulation No. 156: Uniform Provisions Concerning the Approval of
Vehicles with Regards to Software Update and Software Updates
Management System, U.N. Doc. E/ECE/TRANS/505/Rev.3/Add.155
(Mar. 4, 2021), https://unece.org/sites/default/files/2021-03/R156e.
pdf.
48 Id. § 7.1.1.8.
49 Id. § 8.
18
and ensures that manufacturers must comply with
only a single interpretation of the applicable
regulations. In fact, the UN Regulations issued under
the 1958 Agreement have been so successful that the
EU has decided to replace as many EU Directives as
possible with UN Regulations, further harmonizing
vehicle regulations on an international scale. 50
Even countries that are not yet prepared to grant the
reciprocal recognition envisioned by the 1958
Agreement have recognized the importance of
international harmonization of vehicle regulations.
Many such countries—including the United States—
have signed on to the Agreement Concerning the
Establishing of Global Technical Regulations for
Wheeled Vehicles, Equipment and Parts Which Can
Be Fitted and/or Be Used on Wheeled Vehicles (“the
1998 Agreement”). 51 The 1998 Agreement is similar to
the 1958 Agreement in that it acknowledges many of
the same goals and values. Part of the Agreement’s
goal is to develop a process that “promote[s] the
harmonization of existing technical regulations,”
recognizing “the potential value to international trade,
consumer choice and product affordability of
increasing convergences in existing and future
technical regulations and their related standards.” 52
Its express purpose is to “reduce technical barriers to
international trade through harmonizing existing
technical regulations of Contracting Parties, and
UN/ECE Regulations” under the 1958 Agreement. 53
50 Bluebook, supra note 38, at 8.
51 U.N. Doc. ECE/TRANS/132 (June 25, 1998) (hereinafter 1998
Agreement), https://unece.org/DAM/trans/main/wp29/wp29wgs/
wp29gen/wp29glob/tran132.pdf.
52 Id. pmbl.
53 Id. art. 1.1.6.
19
The 1998 Agreement currently has 38 Contracting
Parties—the first of which was the United States—
and has issued over 20 UN Global Technical
Regulations. 54
The 1998 Agreement is similar to the 1958
Agreement, except that the Contracting Parties adopt
UN
Global
Technical
Regulations—not
UN
Regulations; they do so by consensus—not four-fifths
vote; and the Contracting Parties that adopt a UN
Global Technical Regulation are not required to grant
reciprocal recognition to type-approvals granted by
other countries. Still, the 1998 Agreement performs a
valuable harmonization function by encouraging
Contracting Parties to adopt the same regulations.
The Contracting Parties to the 1998 Agreement have
specifically
recognized
the
importance
of
harmonization in emissions-related regulations, and
accordingly, have issued a UN Global Technical
Regulation. In doing so, the Contracting Parties noted
that “compliance with different emission standards in
each region creates high burdens from an
administrative and vehicle design point of view,” and
concluded that both manufacturers and regulators
could benefit from additional harmonization. 55
54 U.N. Economic and Social Council, Status of the Agreement,
of the Global Registry and of the Compendium of Candidates, at
2-13, U.N. Doc. ECE/TRANS/WP.29/1073/Rev.30 (June 16, 2021),
https://unece.org/sites/default/files/2021-06/ECE-TRANS-WP291073-Rev30e.pdf.
55 U.N. Global Registry, Addendum 19: Global Technical
Regulation No. 19 on the EVAPorative Emission Test Procedure
for the Worldwide Harmonized Light Vehicles Test Procedure
(WLTP EVAP) ¶ 2, U.N. Doc. ECE/TRANS/180/Add. 19 (Aug. 25,
2017), https://unece.org/fileadmin/DAM/trans/main/wp29/wp29wgs/
wp29gen/wp29registry/ECE-TRANS-180a19e.pdf.
20
While the 1998 Agreement is a weaker form of
regulatory centralization, because it lacks reciprocal
recognition, it nonetheless confirms the importance of
minimizing regulatory divergence.
C. The EU And UN Systems, Like The
U.S. System For Regulating Vehicle
Emissions, Are Based On The Principle
Of Accountability To A Single Regulator.
The EU and UN systems described above
demonstrate that the goal of regulatory harmonization
and the potential problems created by a multiplicity of
vehicle regulators are not unique to the United States,
which faces the potential for multiple vehicle
regulators because of “Our Federalism.” While there
are a variety of approaches to addressing those issues,
the common thread throughout is the importance of a
single regulatory standard interpreted and enforced
by a single governmental authority.
The EU and the UN pursue that objective by
encouraging the adoption of uniform regulations by
different countries and reciprocal recognition of typeapprovals granted by other countries applying the
same regulation. Importantly, though, the EU and UN
do not allow regulatory centralization to end at initial
approval of a vehicle. Instead, the systems they
created ensure that the same regulatory authority
that initially grants the type-approval remains
responsible for enforcement throughout the life of the
vehicle, even post-sale. Regulatory authority is not
centralized in a single body, as with EPA in the United
States. Instead, it is shared among several bodies, at
least until a manufacturer selects one authority to
which to apply for approval—but it is nonetheless
harmonized by limiting the ability of authorities other
than the one that granted the approval to take
enforcement action. Notably, the EU and UN systems
21
do not distinguish between pre-sale and post-sale
regulation,
recognizing
the
importance
of
harmonization and a single regulator throughout a
vehicle’s life.
The United States took a different path to
harmonization with respect to vehicle emission
systems. Rather than allowing a multiplicity of
regulatory authorities (such as states and other
political subdivisions) to grant approvals and require
reciprocal recognition, Congress created a single
approval authority—EPA—through the CAA’s
preemption provisions. Of course, states retain limited
authority to regulate how cars operate post-sale, such
as by creating carpool lanes. See Pet. 10 n.2; 42 U.S.C.
§ 7543(d). But giving states the broad post-sale
authority envisioned by the Supreme Court of Ohio’s
decision would destroy the United States’ approach to
regulatory centralization of vehicle emission systems.
It would create the very situation the EU, UN, and
U.S. systems were all designed to avoid: subjecting
manufacturers to multiple regulators with differing,
and almost certainly conflicting, interpretations of
applicable regulations.
III. THE
SUPREME COURT OF OHIO’S
DECISION THREATENS TO UNDERMINE REGULATORY HARMONIZATION
AND CAUSE MASSIVE DISRUPTION IN
THE GLOBAL AUTO INDUSTRY.
Viewed against this backdrop of national and
international efforts to harmonize standards and
enforcement in the global auto industry, the Supreme
Court of Ohio’s ruling is a bombshell that threatens
fundamentally to alter the regulatory environment
faced by global automakers. Until this ruling, global
automakers—who already face the daunting challenge
of different regulations in different countries—have
22
been able to rely and depend upon the fact that EPA is
the exclusive U.S. regulator of vehicle emission
systems through the useful life of their vehicles, i.e.,
both pre-sale and post-sale. They likewise have been
able to rely upon the fact that EPA is the exclusive
enforcer of U.S. regulations, such that consent decrees
or other settlements with EPA have comprehensively
resolved manufacturers’ civil liability in the United
States.
Under the Supreme Court of Ohio’s ruling, however,
national uniformity in the United States would be at
an end with respect to post-sale updates. Instead,
global automakers would face regulation and
enforcement actions by all 50 U.S. states and
thousands of political subdivisions, based upon their
endlessly varied and unpredictable local views,
approaches, and priorities. The prospect of auto
manufacturers being subject to different local
regulations for emission systems within a country
would be unprecedented. The Supreme Court of Ohio’s
decision would also create vast confusion for
consumers, who could face conflicting standards for
their emission systems and uncertainty in how to
comply with the multiple standards.
In addition, EPA’s deep technical expertise in
vehicle emission systems and its decades of experience
in assessing the tradeoffs inherent in system updates,
see Pet. 5, 12, would be displaced by regulation and
enforcement by local decisionmakers who lack such
expertise and experience. Local decisionmakers would
effectively be able to veto EPA-approved updates and
EPA’s carefully calibrated enforcement penalties by
imposing massive additional penalties. See Pet. App.
18a (noting that the Ohio Attorney General is seeking
an additional judgment that could total more than $1
trillion, which “involves nothing more than the
23
attorney general’s disagreement with the penalty that
the federal government carefully crafted”); Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 380 (2000)
(“[C]onflict is imminent when two separate remedies
are brought to bear on the same activity.”) (internal
quotations omitted; alteration in original).
The regulatory patchwork and disorder resulting
from the Supreme Court of Ohio’s decision would cause
myriad adverse effects on manufacturers, consumers,
and the environment. First, the Supreme Court of
Ohio’s decision raises the prospect of staggering
liability for auto manufacturers who sell their
products in the United States. See Pet. App. 65a-66a
(noting that “[t]he potential penalties for Ohio alone
could dwarf those paid to the EPA”). Global
manufacturers could not practicably avoid this
potential liability by seeking approval of their postsale updates by thousands of state and local
governments. As a result, they might be forced to
increase the price of their vehicles in the United States
to account for the increased liability risk, or even avoid
U.S. markets altogether. This would harm U.S.
consumers, who might no longer enjoy the wide choice
of vehicles at competitive prices that has resulted from
global regulatory harmonization.
Second, the Supreme Court of Ohio’s decision could
cause manufacturers to avoid or delay improving their
emission systems—to the detriment of consumers and
the environment—for fear that state or local
authorities would construe the improvements as
improper “tampering.” Manufacturers would certainly
resist EPA requests that they take voluntary actions
to modify their emission systems, based on the same
fear of lawsuits by state or local government officials
who might take a different view of the EPA-approved
modifications. As petitioners’ amici explained below,
24
under many anti-tampering laws, it is often difficult to
determine whether a particular post-sale change could
come within some regulator’s interpretation of
tampering. See Brief of Amici Curiae Chamber of
Commerce of the United States of America, Ohio
Chamber of Commerce, and Alliance for Automotive
Innovation Supporting Defendants/Appellants at 3-4,
17-18,
State ex
rel.
Yost
v.
Volkswagen
Aktiengesellschaft, No. 2020-0092 (Ohio Sup. Ct. June
22, 2020). If there is no exclusive regulator in the
United States for post-sale updates, auto
manufacturers cannot take the chance that
performing updates which have been approved or even
requested by EPA will provoke an avalanche of
lawsuits by U.S. states and counties.
Third, global manufacturers fear that regulation by
multiple state and local regulators could give rise to
discrimination and arbitrary enforcement, which is
avoided when EPA serves as the United States’
exclusive regulator. Notably, one of the motivations for
the EU system was that if EU Member States were to
adopt conflicting standards and enforcement
measures, they could use those enforcement measures
to favor their domestic producers over imports from
other countries. 56 In this regard, amici are concerned
about and closely watching recent lawsuits in the
United States brought by states and counties against
non-U.S. manufacturers. Such actions include
Hillsborough County’s recent lawsuit against Daimler
AG and threatened action against Fiat Chrysler
Automobiles N.V., see Pet. 22-23.
56 Comparative Study, supra note 31, at 12, 32 (explaining that
EU type-approval “was initially aimed at ensuring that type
approval systems at national level were not used as a means of
protecting a Member State’s own manufacturers”).
25
CONCLUSION
For the foregoing reasons, and those set forth by the
petitioners, the Court should grant the petition for a
writ of certiorari.
Respectfully submitted,
CHELSEA A. PRIEST
SIDLEY AUSTIN LLP
2021 McKinney Avenue
Suite 2000
Dallas, TX 75201
(214) 981-3300
CARTER G. PHILLIPS*
JACQUELINE G. COOPER
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
cphillips@sidley.com
Counsel for Amici Curiae
September 30, 2021
* Counsel of Record
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.