Amicus Curiae Brief — Volkswagen Aktiengesellschaft, et al., Petitioners v. Ohio, ex rel. Dave Yost, Attorney General

No. 21-312

IN THE

Supreme Court of the United States

VOLKSWAGEN AKTIENGESELLSCHAFT, ET AL.

Petitioners,

v.

THE STATE EX REL. YOST, ATTORNEY GENERAL,

Respondent.

On Petition for Writ of Certiorari to the Supreme

Court of Ohio

AMICI CURIAE BRIEF OF FORMER

ENVIRONMENTAL PROTECTION AGENCY,

CALIFORNIA AIR RESOURCES BOARD, AND

DEPARTMENT OF JUSTICE OFFICIALS

JEFFREY E. HOLMSTEAD, RONALD J.

TENPAS, JOHN D. DUNLAP III, AND LYNN

BUHL IN SUPPORT OF PETITIONERS

Kenneth W. Abrams

Matthew A. Fitzgerald

Counsel of Record

Travis C. Gunn

MCGUIREWOODS LLP

Gateway Plaza

800 East Canal Street

Richmond, VA 23219

T: (804) 775-4716

mfitzgerald@mcguirewoods.com

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

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

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

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

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

I.

EPA and CARB have exclusive

authority to regulate motor

vehicle emissions standards. ................ 5

II.

EPA and CARB have long been

the exclusive emissions regulators

for the entire life of a motor

vehicle. ................................................... 8

III.

The Ohio Supreme Court’s

decision conflicts with Congress’s

determination to give EPA and

CARB the exclusive power to

regulate and enforce motor

vehicle emissions standards. .............. 19

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Cases

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

340 F. Supp. 1120 (SDNY 1972),

aff’d, 468 F.2d 624 (2d Cir. 1972) ........................ 19

Engine Manufacturers Ass’n v. US EPA,

88 F.3d 1075 (D.C. Cir. 1996) ........................ 5, 6, 7

Environmental Protection Commission

of Hillsborough County v. MercedesBenz USA, LLC,

No. 20-02238 (M.D. Fla.) ...................................... 20

Motor & Equip. v. EPA,

627 F.2d 1095 (D.C. Cir. 1979) .............................. 7

Motor Vehicle Manufacturers Ass’n v.

New York State Dep’t of Environment

Conservation,

17 F.3d 521 (2d Cir. 1994) ................................. 5, 6

Nat’l v. San Joaquin Valley Unified Air

Pollution Control District,

627 F.3d 730 (9th Cir. 2010) .............................. 7, 8

State ex rel. Slatery v. Volkswagen

Aktiengesellschaft,

2019 WL 1220836 (Tenn. Ct. App.

March 13, 2019) ................................................ 4, 22

State v. Volkswagen AG,

279 So.3d 1109 (Ala. 2018) .............................. 4, 22

iii

State ex rel. Swanson v. Volkswagen

Aktiengesellschaft,

2018 WL 6273103 (Minn. Ct. App.

Dec. 3, 2018) ..................................................... 4, 22

In re Volkswagen “Clean Diesel”

Marketing,

959 F.3d 1201 (9th Cir. 2020) ................................ 4

State ex rel. Yost v. Volkswagen

Aktiengesellschaft,

--- N.E. 3d ----, 2021 WL 2654338

(Ohio June 29, 2021) .................................... 3, 8, 21

Statutes and Regulations

42 USC § 7521 et seq. ........................................ 6, 9, 15

42 USC § 7522(a)(C)(A) ............................................. 16

42 USC § 7541 et seq. .......................................... 14, 15

42 USC § 7542(b) ....................................................... 12

42 USC § 7543 et seq. ........................................ 6, 7, 17

40 CFR 85.1902(b) ............................................... 13, 14

40 CFR 85.1903(a) ............................................... 13, 14

40 CFR 1068.505(f) .................................................... 16

40 CFR 1068.535 ....................................................... 16

Cal. Health & Safety Code § 39002 ............................ 7

iv

Other Authorities

Control of Air Pollution,

59 FR 31306-01 (1994) ......................................... 17

EPA, Emission Recall Report, Table I

(June 1980) ........................................................... 15

EPA, 2008 Progress Report, Vehicle, and

Engine Compliance Activities

(August 2010) ....................................................... 15

EPA, 2014-2017 Progress Report:

Vehicle & Engine Compliance

Activities (2010) .................................................... 16

EPA, Advisory Circular 2B, Field Fixes

Related to Emission Control-Related

Components (1975) ............................................... 16

H.R. Rep. No. 90-728 (1967) ........................................ 6

S. Rep. No. 192, 89th Cong., 1st Sess. 5

(1965) ...................................................................... 7

1

INTEREST OF AMICI CURIAE1

Amici Jeffrey E. Holmstead, Ronald J. Tenpas,

John D. Dunlap III, and Lynn Buhl are a group of

former EPA, CARB, and DOJ officials.

Mr. Holmstead served as a former assistant

administrator of the EPA for Air and Radiation from

2001 to 2005.

Mr. Tenpas is a former Assistant Attorney

General for the DOJ’s Environmental and Natural

Resources Division. He is also a former United States

Attorney for the Southern District of Illinois,

responsible for both civil and criminal enforcement.

He worked for DOJ from 1997 to 2009.

Mr. Dunlap is a former Chairman of CARB,

serving in that role from 1994 to 1998. He continued

as a Board member of CARB until 1999.

Ms. Buhl was a EPA Regional Administrator

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

1 Under Supreme Court Rule 37.6, counsel for amici represents

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

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

than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

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

file this brief to Petitioners and Respondents. Petitioners

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

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

briefs. Respondents The Environmental Protection Commission

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

have consented to the filing of this brief.

2

Assistant Administrator of EPA’s Office of

Enforcement and Compliance Assurance from 2006

to 2008. In 2003 she was Acting Secretary of the

Maryland Department of the Environment in 2003.

And she was the director of the Southeast Offices of

the Michigan Department of Environmental Quality

from 1999 to 2003.

Their service collectively spans over 20 years,

from 1997 to 2009 in Republican and Democratic

administrations. Each amicus personally worked to

develop and enforce motor vehicle emissions

regulations that applied to vehicles throughout their

useful lives.

Amici share the view that Congress required

EPA and CARB, alone, to regulate manufacturers’

emissions-related conduct throughout the useful life

of motor vehicles; and Congress empowered DOJ to

enforce those regulations by representing EPA in

federal court. That congressional directive of

consolidating regulatory authority in EPA and CARB

allowed amici to uniformly regulate motor vehicle

emissions standards throughout America.

EPA and CARB, in carrying out their directive

from Congress, developed a special expertise for

regulating motor vehicle emissions standards and

addressing the unique tradeoffs required to enforce

those regulations. The Ohio Supreme Court’s decision,

however, elevates States and thousands of local

governments, with no experience in this field, to this

same regulatory status the moment an initial

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

decision undoes Congress’s carefully tailored scheme

3

by empowering thousands of new regulators to

countermand EPA and CARB’s directives or

enforcement of emissions standards. In doing so, the

Ohio Supreme Court’s decision invites the “anarchic

patchwork of federal and [S]tate regulatory

programs” that Congress sought to avoid in Title II of

the Clean Air Act.

SUMMARY OF ARGUMENT

In the Clean Air Act, Congress empowered

EPA and CARB to regulate vehicle emissions

standards throughout the “useful life” of motor

vehicles. That authority empowers EPA and CARB

with extensive and exclusive regulatory and

compliance oversight of manufacturers’ motor vehicle

emissions conduct—even after vehicles’ initial public

sale. Properly understood, and as recognized by

several courts, the CAA preempts state-law attempts

to regulate automobile emission control systems

throughout the vehicle’s useful life.

The Supreme Court of Ohio disagreed. It held

that the CAA permits a state to regulate emission

control devices so long as the automobile is no longer

a “new motor vehicle” and the engine is no longer a

“new motor vehicle engine.” State ex rel. Yost v.

Volkswagen Aktiengesellschaft, --- N.E. 3d ----, 2021

WL 2654338, *4-6 (Ohio June 29, 2021). This brightline rule disrupts Congress’s carefully-struck balance

of state and federal interests in the CAA.

Although the Ohio Supreme Court adopted an

incorrect view of the CAA, it is far from novel. The

court reached its erroneous decision by disagreeing

4

with contrary decisions. See State v. Volkswagen AG,

279 So.3d 1109 (Ala. 2018); State ex rel. Slatery v.

Volkswagen Aktiengesellschaft, 2019 WL 1220836

(Tenn. Ct. App. March 13, 2019); State ex rel.

Swanson v. Volkswagen Aktiengesellschaft, 2018 WL

6273103 (Minn. Ct. App. Dec. 3, 2018). It instead

borrowed heavily from In re Volkswagen “Clean

Diesel” Marketing, 959 F.3d 1201 (9th Cir. 2020).

This Court is familiar with In re Volkswagen, having

recently reviewed the petition for appeal and invited

the Acting Solicitor General to file a brief expressing

the views of the United States (which the United

States since filed on September 27, 2021). See Docket

20-994.

This conflicting authority across the Nation

has serious implications for EPA’s regulatory

authority. Much like the erroneous decision In re

Volkswagen from which it draws much inspiration,

the Supreme Court of Ohio has issued a ruling that

threatens EPA’s and CARB’s exclusive authority to

regulate and enforce auto manufacturers’ compliance

with motor vehicle emissions standards. That

exclusive authority has been the cornerstone of Title

II, allowing EPA and CARB alone to effectively

regulate motor vehicle emissions—even for vehicles

in use by the public. By chiseling away at that

exclusive authority, the Supreme Court of Ohio

significantly undermined EPA’s and CARB’s ability

to regulate motor vehicle emissions and preserve

public health.

5

ARGUMENT

I.

EPA and CARB have exclusive authority to

regulate motor vehicle emissions standards.

In the Clean Air Act, Congress created a

comprehensive scheme allowing EPA and CARB to

regulate manufacturers to ensure that they build and

maintain vehicles that comply with mobile emissions

standards—not only when new, but throughout their

useful lives. Congress did not segregate EPA and

CARB’s authority by whether the vehicles have

already been sold to the public. Instead, Congress

issued the imperative that they alone have authority

over vehicle manufacturers’ emissions-related

conduct.

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

endeavor[ed] to resolve the problems caused by

moveable sources or vehicle emissions.” Motor

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

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

Cir. 1994).

Unlike the State-led regulatory scheme for

stationary source emissions under Title I of the Act,

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

principally federal project.” Engine Manufacturers

Ass’n v. US EPA, 88 F.3d 1075, 1079 (D.C. Cir. 1996).

Two related concerns compelled Congress to impose a

unifying, federal regulatory scheme for motor vehicle

emissions. First was “the difficulty of subjecting

motor vehicles, which readily move across [S]tate

boundaries, to control by individual [S]tates.” Id.

Second was that “the possibility of 50 different

[S]tate regulatory regimes raised the spectre of an

6

anarchic patchwork of federal and [S]tate regulatory

programs, a prospect which threatened to create

nightmares for the manufacturers.” Id. Even

“identical Federal and State standards, separately

administered, would be difficult for the industry to

meet since different administration could easily lead

to different answers to identical questions.” H.R. Rep.

No. 90-728 (1967) (emphasis added). “The ability of

those engaged in the manufacture of automobiles to

obtain clear and consistent answers concerning

emission controls and standards is of considerable

importance so as to permit economies in production.”

Id.

As a result, Congress empowered EPA to

regulate emissions “from any class or classes of new

motor vehicles or new motor vehicle engines.” 42

USC § 7521(A)(1). The “cornerstone of Title II is”

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

“express preemption of [S]tate regulation of

automobile emissions.” Motor Vehicle Manufacturers,

17 F.3d at 526; see also 42 USC § 7543(a) (“No State

or any political subdivision thereof shall adopt or

attempt to enforce any standard relating to the

control of emissions from new motor vehicles or new

motor vehicle engines subject to this part.”). Congress

believed this expansive preemption provision was

“necessary in order to prevent a chaotic situation

from developing in interstate commerce in new motor

vehicles.” H.R. Rep. No. 90-728 (1967).

B. Despite this need for a federal regulatory

scheme, Congress also recognized that California,

unique among the States, had been regulating

automobile emissions before passage of the Act.

7

California had led “in the establishment of standards

for regulation of automotive pollutant emissions.”

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

“[t]he first federal emission standards were largely

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

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

So when it came to the Clean Air Act,

Congress provided a waiver process for exemption

from Title II’s federal preemption of State and local

regulation. See 42 USC § 7543(b)(1). The terms of

this exemption, which require a State to have had

regulatory emission standards before 1966, qualified

California as the only State that could seek waiver.

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

In turn, California empowered CARB with “the

responsibility” of regulating motor vehicle emissions.

Cal. Health & Safety Code § 39002.

C. The result of this carefully-crafted

“legislative compromise” was neither the “51

different standards” that manufacturers “had

feared,” nor was it the single federal standard they

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

Instead, “manufacturers must cope with two

regulatory standards” as established by EPA and

CARB. Id.

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

[S]tates the job of regulating stationary sources of

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

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

responsible for regulating emissions from motor

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

8

Joaquin Valley Unified Air Pollution Control District,

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

II. EPA and CARB have long been

exclusive emissions regulators for

entire life of a motor vehicle.

the

the

Given EPA’s and CARB’s exclusive authority

to regulate vehicle manufacturers’ emissions-related

conduct, under the Clean Air Act both EPA and

CARB have an extensive history of regulatory and

compliance oversight of manufacturers that both preand post-date the initial public sale of vehicles.

In fact, the Ohio Supreme Court acknowledged

that the CAA “contains provisions that apply postsale and provide the federal government with tools to

ensure continued compliance after a new motor

vehicle or new motor-vehicle engine is sold.” Yost,

2021 WL 2654338, *5. To that point, manufacturers

regularly engage in post-sale conduct that impacts

EPA’s and CARB’s regulatory authority over new

motor vehicle emissions. As a result, as part of

Congress’s design, EPA and CARB thoroughly

oversee and regulate manufacturer activities both

before and after an initial vehicle sale to the public.

A. EPA’s timeline for regulatory and

compliance actions begins at the very beginning of a

vehicle’s design and build stage. EPA will review a

manufacturer’s initial application for a Certificate of

Conformity and conduct testing, while manufacturers

will also be performing their own emissions and

durability testing. At the end of the design and build

phase and before the vehicle is first sold to the public,

EPA will review and either grant or deny a

9

manufacturer’s final application for a Certificate of

Conformity.

During a vehicle’s design and build phase,

EPA’s primary objective for compliance activities is to

ensure that emissions from vehicles and engines

match the specifications in a Certificate of

Conformity. These specification standards apply to

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

USC § 7521(a)(1). These Certificates act as a license

for the manufacturer to produce and sell vehicles for

one model year in a manner consistent with the

terms of that certificate and the vehicle description.

In effect, they ensure that manufacturers design

compliant vehicles to conform to emission standards

throughout their useful life. As a result, obtaining a

Certificate of Conformity is a prerequisite under the

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

commerce.

EPA allows manufacturers some flexibility in

achieving emissions compliance during this design

phase. This flexibility permits manufacturers to meet

emissions requirements within their business model.

But this flexibility also requires greater attention

and specialized knowledge from EPA, as the same

regulation and emissions standards may allow for

different vehicles and engines to have different

emissions levels. Flexibility also implicates tradeoffs,

as designs for a particular engine to better protect

against one type of emissions might increase another.

EPA’s expertise helps balance these tradeoffs to

ensure that the best product for both consumer and

the environment reaches the market.

10

During the design and build phase for vehicles,

manufacturers will conduct initial vehicle emissions

and durability testing. This testing is extensive.

Testing procedures include Federal Test Procedure;

Highway

Fuel

Economy

Test;

High

Speed/Acceleration Cycle; Air Conditioning Test

Cycle; Cold CO Test; Evaporative Emissions Test;

On-Board Recovery Vapor Refueling Test; and

Running Loss Emissions Test.

Manufacturers then submit initial applications

for Certificates of Conformity, which EPA reviews. In

those applications, EPA requires manufacturers to

provide extensive and detailed information showing

how the vehicles and engines meet emissions

requirements.

For

example,

EPA

requires

manufacturers to submit information and data about:



the basic engine design and

distinguishable configurations;



an explanation of how the emission control

system operates;



a description of the test engine representing

the test group or engine family seeking

certification;



a description of each test group or engine

family;



a description of the test procedures and

equipment used to test the engine;



all emissions data for each test engine;

a

list

of

11



the intended useful life of the engine family

seeking certification and the emission

deterioration characteristics over that useful

life; production volumes for the test group or

engine family;



the durability group—that is, the group of

vehicles and engines with similar emission

deterioration

and

emission

component

durability;



durability test procedures;



a description of vehicles used to show tailpipe

emissions and emission control component

durability;



test results, official certification levels, and

applicable emissions standards for each

vehicle and engine tested;



unconditional certification that all engines

comply with the Clean Air Act and other

regulatory requirements;



statement of compliance with applicable

emission standards for untested vehicles; and



for light-duty vehicles, information on their

emission control diagnostic systems, and their

evaporate and on-board recovery vapor

refueling.

Later, EPA will conduct random and targeted

confirmatory testing after manufacturers submit

their applications. This program is more than just a

12

rubber stamp. EPA has found that manufacturers

take seriously the testing requirements, but EPA

regulators believe in a “trust but verify” approach

and thus conduct testing as well. Every year EPA

does fail some vehicles.

EPA’s compliance actions are not limited to

just testing of products. As part of its compliance

audits, EPA also conducts records inspections,

emission laboratory audits, test monitoring, and

assembly line audits. See 42 USC § 7542(b)

(authorizing these oversight activities). EPA then

reviews manufacturers’ submissions of final

applications for Certificates of Conformity.

After vehicles and engines come off the

production line, but before their initial sale, EPA

continues to conduct audits and other compliance

testing. EPA will also issue Certificates of

Conformity at this stage.

To help facilitate EPA’s issuance of certificates,

it uses a comprehensive information system to collect

and verify data from manufacturers. This system is

known as “Engines and Vehicles – Compliance

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

a significant investment that improves EPA’s ability

to oversee mobile source emissions compliance.

Rather than disparate systems of data collection for

various vehicle and engine sectors as used in past

years, EV-CIS encompasses many mobile source

industries by including modules for 14 industries,

and modules for light-duty and heavy-duty

greenhouse gas programs.

13

Manufacturers

can

efficiently

submit

information to EPA through EV-CIS, and the system

captures more than 11,000 data elements submitted

by manufacturers. The system has built-in validation

for some manufacturer data which helps prevent

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

more easily share non-confidential data with

government partners, like the National Highway

Traffic Safety Administration.

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

to the public, Congress required EPA to continue its

extensive

and

exclusive

relationship

with

manufacturers to regulate emissions during the

useful life of vehicles.

For example, EPA and manufacturers often

identify defects and noncompliance with emissions

standards that manifest after the first sale of a new

motor vehicle through various types of testing.

Passenger car and light truck manufacturers must

participate in the In-Use Verification Program.

Manufacturers recruit vehicles owned by private

citizens, screen them for obvious tampering, and then

test the vehicles at low mileage (10,000 miles) and

high mileage (50,000 miles). And between 20,000 and

90,000 miles, EPA conducts in-use surveillance

testing.

More than just conducting these tests,

manufacturers must also report their testing data to

EPA. Relatedly, manufacturers must report post-sale

emissions-related defects to EPA even if the defect

does not increase emission levels. 40 CFR 85.1902(b),

85.1903(a). Manufacturers need not report every

14

defect, however. In accordance with its specialized

expertise,

EPA

has

established

reporting

requirements based on certain amounts of confirmed

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

testing failure rates that surpass the regulatory

threshold will automatically require the manufacture

to conduct In-Use Confirmatory Test Program on the

failed test group. Depending on the results of that

Test Program, manufacturers may implement a

recall or other remedies to correct the problem.

This testing has two important consequences.

First, EPA can work with manufacturers to fix

problems that arise during vehicles’ useful lives.

Second, EPA can work with manufacturers to

identify potential design issues for future model

years, so that EPA and manufacturers can target

vehicles that might need more attention in their

design and build phase.

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

Title II also requires that every manufacturer

warrant “to the ultimate purchaser and each

subsequent purchaser” that “each new motor vehicle

and new motor vehicle engine” complies with EPA’s

emissions regulations. 42 USC § 7541(a)(1). Congress

empowered EPA to “prescribe regulations” to

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

methods and procedures” to ensure “each vehicle and

engine . . . complies with the emission standards”

when those new motor vehicles are “in actual use

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

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

the initial sale and for the useful life of the vehicle.

15

Id. § 7541(i)(1); see also id. § 7521(d)(1) (generally

providing that the useful life of light duty vehicle

engines is 5 or 10 years, and 50,000 or 100,000 miles).

Because the Clean Air Act requires

manufacturers to design and build vehicles and

engines that comply with new motor vehicle

emissions standards throughout the vehicles’ useful

life, recalls focus on that compliance. So, an

emissions-related defect will not lead to a mandatory

recall if it does not increase emissions. But if the

defect leads to excessive pollution from in-use

vehicles or engines, and the manufacturer does not

institute a voluntary recall, EPA requires a recall.

Additionally, EPA can require a recall if it

determines that a substantial portion of in-use

vehicles within a category or class fail to meet

emission standards. 42 USC § 7541(c)(1). Those

determinations result from EPA’s review of extensive

data, including EPA and manufacturer test results.

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

vehicles are otherwise being properly maintained and

used.

Every year, EPA oversees recalls affecting

millions of vehicles on America’s roads, with the

numbers of affected vehicles increasing over time.

For the 1979 calendar year, manufacturers recalled

1.5 million vehicles for emissions-related problems.

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

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

2008 Progress Report, Vehicle, and Engine

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

2014 through 2017, manufacturers recalled an

16

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

Activities, at 7 (2010).

EPA seldom needs to exercise its authority to

mandate recalls. See 40 CFR 1068.505(f), 1068.535

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

relationship

with

manufacturers

to

ensure

compliance with emissions regulations often leads to

voluntary recalls once EPA discovers potential

noncompliance with emissions standards.

Recalls require manufacturers to fix the

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

devices. But separate from the formal recall process,

manufacturers often change their design and

calibration of their engines and emission control

systems (including software updates) to correct

emission-related defects for in-use vehicles. These

field-fixes are distinct from recalls, often reflect

changes made to vehicles in the design and build

phase, and do not require EPA pre-approval.

Nonetheless, because such field-fixes do alter

emission devices or systems, EPA has long reviewed

fixes that result in “modification, removal or

replacement

of

an

emission-control

related

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

Related to Emission Control-Related Components, at

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

as not falling under the Act’s prohibition of

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

element of design installed . . . in compliance with

[Clean Air Act] regulations” in 42 USC

§ 7522(a)(C)(A)).

17

To be sure, EPA does not view itself as having

absolute authority over all conduct affecting motor

vehicle emissions after the initial sale. EPA has

explained that States may enforce requirements that

“do not amount to a standard relating back to the

original design of the engine by the original engine

manufacturer.” Control of Air Pollution, 59 FR

31306-01, at 31313 (1994). In fact, Congress clarified

as much when it legislated that “[n]othing in part

[governing motor vehicle emission standards] 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.” 42 USC § 7543(d). But

that reserved authority does not permit States and

localities to intrude on EPA’s authority over how the

vehicles are built or reconfigured. Instead, EPA’s

exclusive regulatory authority encompasses “[i]n-use

testing and recall programs [that] ensure compliance

with standards required to be met by manufacturers

at the time of certification of the engine,” because

“these in-use standards relate to the original

manufacture of the engine and place the burden of

compliance upon the manufacturer.” Control of Air

Pollution, 59 FR 31306-01, at 31330 n.28.

C. Meanwhile, Congress permitted CARB to

also have an extensive new vehicle and engine

certification program. CARB certification involves a

separate process from EPA, though it is much like

EPA’s compliance and regulatory procedures.

Without CARB certification, vehicles cannot be

sold legally in California, and violating the

certification requirement can lead to fines reaching

18

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

vehicles based on engine families, test groups (for

exhaust emissions), or evaporative emissions.

CARB will certify a vehicle only on a

manufacturer’s demonstration that its emissions

control systems are durable and comply with the

emissions standards for the vehicle’s useful life.

Manufacturers must also establish the vehicle’s

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

crankcase emissions, and other standards or

requirements that may apply to a vehicle.

Manufacturers must make this showing through

durability and certification testing.

CARB certifies vehicles grouped together by

engine families or test groups by executive order.

Since 1983, CARB has had an In-Use

Compliance Program to ensure that vehicles do not

exceed applicable emissions standards during their

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

on private individuals providing their vehicles for

inspection and, if necessary, restoration of the engine

to the manufacturer’s specifications. The vehicles

then undergo emissions testing, observed by both

CARB and manufacturer representatives, identical to

the manufacturer’s testing done during the emissions

certification process. As with EPA testing, any test

group that exceeds applicable emissions standard

requires investigation and corrective action.

Corrective actions often require statewide recalls.

Unlike EPA, CARB also requires approval for any

field fix manufacturers implement for in-use vehicles.

19

CARB also participates in the In-Use

Verification Program that requires manufacturers to

annually test vehicles to monitor emissions at low

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

miles) benchmarks.

III. The Ohio Supreme Court’s decision

conflicts with Congress’s determination to

give EPA and CARB the exclusive power to

regulate and enforce motor vehicle

emissions standards.

EPA’s and CARB’s exclusive regulatory

authority extends beyond the point of sale of a new

motor vehicle. The Ohio Supreme Court failed to

afford the proper preemptive force to EPA’s and

CARB’s authority and actions under the CAA that

extend throughout the useful life of a vehicle, and

which are critical for EPA and CARB to enforce the

Act’s new-vehicle emissions standards against

manufacturers. In short, to regulate new motor

vehicle emissions, it is just as important that EPA

and CARB have the exclusive authority to issue

Certificates of Compliance as it is that they have the

exclusive authority to oversee post-sale design

changes through recalls or field fixes.

Restricting the Act’s preemption provision,

which defines EPA’s and CARB’s exclusive

regulatory authority, to the pre-sale period would be

“an obvious circumvention of the Clean Air Act and

would defeat the congressional purpose of preventing

obstruction to interstate commerce.” Allway Taxi, Inc.

v. City of New York, 340 F. Supp. 1120, 1124 (SDNY

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

20

that this situation would allow any State or locality

to impermissibly “impose its own emission control

standards the moment after a new car is bought and

registered”).

EPA, CARB, DOJ, and motor vehicle

manufacturers have followed this regulatory

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

doing, EPA and CARB officials have worked with

industry to successfully oversee hundreds of

emissions system recalls, while DOJ has negotiated

many settlements for federal law violations—

settlements which, themselves, can require corrective

actions such as recalls. The regulators and the

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

CARB’s exclusive authority over motor vehicle

emissions standards. It is unlikely that DOJ would

have been able to achieve these settlements if all

interested parties had to account for 50 states and

thousands of counties in addition to EPA and CARB.

Yet if the Ohio Supreme Court is correct, EPA

and CARB no longer have exclusive authority over

these motor vehicle emissions matters. Thousands of

States and localities would now have a say about

whether post-sale changes to emission systems are

permissible, as EPA might determine, or whether

they violate State anti-tampering laws, as a State or

locality might conclude. See, e.g., Environmental

Protection Commission of Hillsborough County v.

Mercedes-Benz USA, LLC, No. 20-02238, Doc. 7

¶¶ 64-68, 90 (M.D. Fla.) (alleging that MercedesBenz “tamper[ed] with the emission control systems

of used Affected Vehicles registered in Hillsborough

21

County, through a program of newly created field

fixes and recall campaigns”).

Moreover, the Ohio Supreme Court’s decision

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

ability to remedy violations of emissions standards

through settlements with vehicle manufacturers.

Such settlements often involve a manufacturer’s

agreement to perform remedial measures, fix affected

vehicles without charge to consumers, and sometimes

pay significant fines. Manufacturers enter into these

settlements, which can exceed several billion dollars

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

resolution with the exclusive regulatory authority. If

States and local governments can institute their own

enforcement after those agreements occur, or can

claim that corrective actions are themselves

violations of state or local law, manufacturers will be

far less willing to entertain settlements with EPA,

CARB, and DOJ. Instead, manufacturers will have

great incentive to fight allegations that their vehicles

emit excess emissions. This resistance will make

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

Americans and their environment far harder than in

the past.

The Ohio Supreme Court downplayed this

concern, remarking that it was “tellin[g]” that “EPA

was . . . able to resolve its case against Volkswagen”

“despite the likelihood of subsequent actions by

states and local governments here.” Yost, 2021 WL

2654338, *7. But this situation is far from “telling”

about EPA’s ability to secure appropriate penalties in

future enforcement actions. EPA’s success in

efficiently resolving its enforcement action against

22

Volkswagen was before the Ohio Supreme Court (and

the Ninth Circuit before in In re Volkswagen)

significantly limited the CAA’s preemptive force. As a

result, reasonably, EPA and Volkswagen likely did

not anticipate a slew of tag-along enforcement

actions that would escape prompt dismissal under

preemption doctrine. The same cannot be said

moving forward in jurisdictions, like Ohio and the

Ninth Circuit, where courts have wrongly narrowed

the CAA’s preemptive scope.

Additionally, the Court should grant review to

bring clarity to the law and EPA’s and CARB’s role.

Other courts across the Nation come to the opposite

conclusion from the Ohio Supreme Court. See State v.

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

rel. Slatery v. Volkswagen Aktiengesellschaft, 2019

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

ex rel. Swanson v. Volkswagen Aktiengesellschaft,

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

This

difference

in

opinion

needlessly

complicates EPA’s work to protect the environment.

EPA has 10 regional offices across the country, which

implicate different rules between and within these

regions. Region 5, for example, covers both Ohio and

Minnesota. As a result, Region 5 would need to

consider local regulators under the Ohio Supreme

Court’s decision below—at least in Ohio. On the other

hand, Minnesota authority cuts the other way, and so

Region 5 would not need to consider local regulators

in Minnesota. And with the other states in Region 5

which have not yet addressed this issue, like Illinois,

Indiana, Michigan, and Wisconsin, EPA would not

know whether it must consider local regulators.

23

Meanwhile, Region 4 would not need to consider local

regulators—at least for some states like Tennessee

and Alabama. And Regions 9 and 10, which cover the

Ninth Circuit, would need to consider local

regulators under the Ninth Circuit’s decision In re

Volkswagen. This Court’s pronouncement about the

correct rule will benefit EPA by ensuring a uniform,

nationwide approach.

Ultimately, Congress designed the Clean Air

Act to provide EPA and CARB exclusive authority to

regulate manufacturers’ new motor vehicle emissions

conduct both before and after new motor vehicles are

sold. The Ohio Supreme Court’s decision below allows

State and local regulators to suddenly have a role—

separate from Congress’s scheme under the Act—in

determining new motor vehicles’ emissions standards.

These competing and potentially conflicting

determinations of whether the law permits post-sale

changes to emission systems will frustrate EPA and

CARB’s ability to effectively regulate motor vehicle

emissions standards under Title II.

CONCLUSION

Amici ask this Court to grant certiorari.

24

Respectfully submitted,

Kenneth W. Abrams

Matthew A. Fitzgerald

Counsel of Record

Travis C. Gunn

MCGUIREWOODS LLP

Gateway Plaza

800 East Canal Street

Richmond, VA 23219

T: (804) 775-4716

mfitzgerald@mcguirewoods.com

Attorneys for Amici Curiae

September 30, 2021