Respondents 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.

OHIO EX REL. ATTORNEY GENERAL DAVE YOST,

Respondent.

______________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

______________________________

BRIEF IN OPPOSITION

__________________________________________

DAVE YOST

Attorney General of Ohio

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

30 East Broad Street, 17th Fl.

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@ohioago.gov

Counsel for Respondent

QUESTION PRESENTED

Does the Clean Air Act preempt state laws that

prohibit tampering with emission-control systems in

already-in-use vehicles?

ii

LIST OF PARTIES

The Petitions’ list of parties is complete and correct.

iii

LIST OF DIRECTLY RELATED PROCEEDINGS

The Petition’s list of related proceedings is complete and correct.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PARTIES .....................................................ii

LIST OF DIRECTLY RELATED

PROCEEDINGS ................................................. iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ....................................... v

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 1

REASONS FOR DENYING THE PETITION ........... 7

I.

Under 28 U.S.C. §1257(a), the Court

lacks jurisdiction to hear this case. .............. 7

II.

The split is shallow and dissipating. .......... 10

III. The decision below is correct....................... 11

A.

Volkswagen’s express-preemption

argument is meritless. ........................... 12

B.

Volkswagen’s implied-preemption

argument has no textual grounding. ..... 15

CONCLUSION.......................................................... 19

v

TABLE OF AUTHORITIES

Cases

Page(s)

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335 (2020) ......................................... 16

California v. ARC Am. Corp.,

490 U.S. 93 (1989) ............................................... 17

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ..................................... 8, 9, 10

Cty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) ..................................... 2, 18

Engine Mfrs. Ass’n v. S. Coast Air Quality

Mgmt. Dist.,

541 U.S. 246 (2004) ............................................. 14

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992) ............................................... 16

Gamble v. United States,

139 S. Ct. 1960 (2019) ......................................... 17

In re Volkswagen “Clean Diesel” Mktg.,

Sales Pracs., & Prod. Liab. Litig.,

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

Jefferson v. City of Tarrant, Ala.,

522 U.S. 75 (1997) ............................................. 7, 9

Jennings v. Stephens,

574 U.S. 271 (2015) ............................................. 17

Kansas v. Garcia,

140 S. Ct. 791 (2020) ............................... 16, 17, 19

Mills v. Alabama,

384 U.S. 214 (1966) ........................................... 8, 9

vi

Morales v. TWA,

504 U.S. 374 (1992) ............................................. 12

O’Dell v. Espinoza,

456 U.S. 430 (1982) ............................................... 7

P.R. Dep’t of Consumer Affairs v. Isla

Petroleum Corp.,

485 U.S. 495 (1988) ............................................. 17

S. Pac. Co. v. Gileo,

351 U.S. 493 (1956) ............................................... 7

Silkwood v. Kerr-Mcgee Corp.,

464 U.S. 238 (1984) ....................................... 17, 18

Solid Waste Agency of Northern Cook Cty. v.

United States Army Corps of Eng’rs,

531 U.S. 159 (2001) ............................................... 1

State ex rel. Brown v. Dayton Malleable,

Inc.,

1 Ohio St. 3d 151 (1982) ...................................... 18

State ex rel. Slatery v. Volkswagen

Aktiengesellschaft,

No. M2018-00791-COA-R9-CV, 2019 WL

1220836 (Tenn. Ct. App. Mar. 13, 2019) ............ 10

State ex rel. Yost v. Volkswagen

Aktiengesellschaft,

137 N.E.3d 1267 (Ohio Ct. App. 2019).................. 6

State v. Volkswagen AG,

279 So. 3d 1109 (Ala. 2018) ........................... 10, 11

State v. Volkswagen Aktiengesellschaft,

No. A18-0544, 2018 WL 6273103 (Minn.

Ct. App. Dec. 3, 2018) .......................................... 10

vii

State, ex rel. DeWine v. Volkswagen

Aktiengesellschaft,

No. 16CV10-10206, 2018 WL 8951077

(Ohio Ct. Com. Pl. Dec. 07, 2018) ......................... 6

United States v. Apel,

571 U.S. 359 (2014) ............................................. 15

Volkswagen Group of America, Inc. v. The

Environmental Protection Commission of

Hillsborough County, Florida,

No. 20-994 .............................................................. 1

Statutes and Rules

40 C.F.R. §51.351 ........................................................ 2

40 C.F.R. §51.361 ........................................................ 2

59 Fed. Reg. 31306 .................................................... 12

28 U.S.C. §1257 ....................................................... 1, 7

42 U.S.C. §7401 ........................................................... 2

42 U.S.C. §7521 ........................................................... 2

42 U.S.C. §7522 ........................................................... 2

42 U.S.C. §7524 ......................................................... 18

42 U.S.C. §7525 ........................................................... 2

42 U.S.C. §7543 ............................................... 3, 12, 16

Ohio Admin. Code §3745-26-01 .................................. 2

Ohio Admin. Code §3745-26-12 .................................. 2

Ohio Rev. Code §3704.14 .................................. 2, 3, 14

Ohio Rev. Code §3704.16 ...................................... 3, 13

viii

Other Authorities

Br. for United States as Amicus Curiae in

Volkswagen v. Environmental Protection

Commission. No. 20-994 (Sept. 27, 2021) ....... 1, 17

Ohio EPA E-check ....................................................... 2

United States v. Volkswagen AG, No. 16-cr20394-SFC-APP-8, R.68 (E.D. Mich.

Mar. 10, 2017) ........................................................ 5

INTRODUCTION

This case presents precisely the same question as

the case that Volkswagen calls “Counties.” See

Volkswagen Group of America, Inc. v. The Environmental Protection Commission of Hillsborough County, Florida, No. 20-994. In that case, the Ninth Circuit held that the Clean Air Act does not preempt

state laws that forbid tampering with emissioncontrol systems after a vehicle’s sale.

In re

Volkswagen “Clean Diesel” Mktg., Sales Pracs., &

Prod. Liab. Litig. (“Counties”), 959 F.3d 1201, 1205

(9th Cir. 2020) (per Ikuta, J.). In this case, the Supreme Court of Ohio reached the same conclusion.

See Pet.App.16a. The issues presented in Counties

are not worthy of review. See Br. for United States

as Amicus Curiae in Volkswagen v. Environmental

Protection Commission. No. 20-994 (Sept. 27, 2021).

So, neither are the issues in this case.

Further, this is a far worse vehicle than Counties

for addressing the question presented. The reason is

that this appeal comes from a state-court case that is

not yet final. As such, this Court lacks jurisdiction to

decide the matter. 28 U.S.C. §1257. At the very

least, there are significant doubts surrounding the

Court’s jurisdiction. That alone counsels against

granting Volkswagen’s petition for a writ of certiorari.

STATEMENT

1. Environmental regulation is primarily a state

responsibility. Solid Waste Agency of Northern Cook

Cty. (SWANCC) v. United States Army Corps of

Eng’rs, 531 U.S. 159, 174 (2001). Congress has made

sure it stays that way. The Clean Water Act, for example, leaves the States with “substantial responsi-

2

bility and autonomy” to regulate groundwater pollution. Cty. of Maui v. Haw. Wildlife Fund, 140 S. Ct.

1462, 1471 (2020). Along the same lines, the Clean

Air Act assigns “primary responsibility” for controlling air pollution to the States.

42 U.S.C.

§7401(a)(3).

There is, however, one important issue on which

the federal government takes the lead: it bears primary responsibility for regulating emissions by new

cars. Under the Clean Air Act, the federal government sets pollutant-concentration standards that

new cars must satisfy.

See, e.g., 42 U.S.C.

§§7522(a)(1), 7521(b). The Act also requires that vehicles be sold with a “certificate of conformity.” That

certificate attests to compliance with regulations including emission limits. See §7525(a)(1). Separately,

the Act forbids “any person” from “remov[ing] or render[ing] inoperative any device” that reduces air pollution. §7522(a)(3)(A).

While the federal government takes the lead in

regulating emissions from new cars, the States play a

substantial role in regulating pollution from used

cars. Consider Ohio. The Buckeye State regulates

car emissions in two ways relevant here. First, it

carries out an inspection-and-maintenance program

known as E-Check. Ohio Rev. Code §3704.14; Ohio

Admin. Code §3745-26-01 et seq.; see also Ohio EPA

E-check, https://perma.cc/8HZL-ZNSG. Under this

program, residents of seven northeast Ohio counties

must test their cars’ emissions biennially and make

any necessary repairs. Ohio Admin. Code §3745-2612(A)(3), (D)(4), (D)(7); 40 C.F.R. §§51.351, 51.361.

Second, the State’s Anti-Tampering Law prevents

the disabling of emission controls on in-use cars.

3

Ohio Rev. Code §3704.16(C)(3). It provides: “No person shall knowingly … [t]amper with any emission

control system installed on or in a motor vehicle after

sale, lease, or rental and delivery of the vehicle.” Id.

§3704.16(C) & (C)(3) (emphasis added). “‘Tamper

with’ means to remove permanently, bypass, defeat,

or render inoperative, in whole or part, any emission

control system that is installed on or in a motor vehicle.” Id. §3704.16(A)(1). As the italicized text shows,

this law complements the federal regulation of emissions. While federal law ensures that new cars meet

emission standards, the Anti-Tampering Law ensures that emission-control devices are not tampered

with “after sale” so as to evade emission standards.

All of this aligns with provisions in the Clean Air

Act that help delineate federal and state responsibility in this field. The first is the “Preemption Clause.”

It says: “No State or any political subdivision thereof

shall adopt or attempt to enforce any standard relating to the control of emissions from new” cars or “new

… engines.” 42 U.S.C. §7543(a) (emphasis added).

The second is the “Savings Provision,” which says:

“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” cars. Id.

§7543(d) (emphasis added). These provisions—like

the Clean Air Act more broadly—leave the EPA to

impose standards on new-car emissions while reserving to the States the authority to regulate air pollution from in-use cars. Accord Correspondence from

Automobile Mfrs. Ass’n to Elliot L. Richardson, Aug.

27, 1970, reprinted in 1 A Legislative History of the

Clean Air Act Amendments of 1970, at 726 (Jan.

1974).

4

2. Enter Volkswagen. As consumers increasingly

sought

environmentally

friendly

products,

Volkswagen marketed what it called “clean diesel”

vehicles. See, e.g., Counties, 959 F.3d at 1208. But

that campaign hid a dirty truth. Volkswagen had

installed software to cheat emission controls on various models for years 2009 through 2016. Id. at

1207–08. For the affected models, the emissioncontrol systems could meet environmental regulations during brief stints of testing. But the same

cars would emit “up to 35 times higher than” the allowable pollutant levels while being driven on the

street. Id. at 1207.

The scheme worked like this. Volkswagen installed software on new cars that would switch the

cars between a test mode and a drive mode. Id.

Once installed, the software detected whether a car

was undergoing emission testing in a controlled setting or being driven on the open road. Id. The software defaulted to test mode, which activated emission controls and allowed the car to pass inspection.

Id. When the software detected normal driving, it

would deactivate the emission controls. Id. This improved the cars’ performance, but released illegal

amounts of pollution into the air. Id. Volkswagen

installed the cheating software on more than 580,000

cars nationwide. Id. at 1208.

But the cheat had a glitch. Some cars with the

cheat software suffered engine failure on the open

road. Id. The software’s default to test mode was to

blame—it did not always detect on-road driving. Id.

Volkswagen solved the problem by cheating again.

Volkswagen issued recalls for what it told the cars’

owners was routine maintenance.

Id.

But

5

Volkswagen instructed mechanics to install software

that would flip the default setting from test mode

(the clean mode) to drive mode (the dirty mode). Id.

Volkswagen also instructed mechanics to install new

software that could detect the steering-wheel angle,

which allowed the software to switch the car into test

mode when the car was on a testing apparatus instead of on the open road. Id.

Volkswagen admitted to all of this in a plea

agreement in federal court.

United States v.

Volkswagen AG, No. 16-cr-20394-SFC-APP-8, R.68

(E.D. Mich. Mar. 10, 2017). The plea deal did not

give Volkswagen “any protection” against prosecutions for the same conduct by States or local governments. Id. at PageID#1403; Counties, 959 F. 3d at

1209. Volkswagen also settled its civil Clean Air Act

liabilities to the federal government. Every State

other than California, however, “reserved [the] ability to sue Volkswagen for damages.” Counties, 959

F.3d at 1209.

3. Enter Ohio.

The Attorney General sued

Volkswagen to vindicate Ohio’s air-pollution laws—

and, more importantly, the health and environmental interests those laws protect. Ohio’s complaint

targeted Volkswagen’s discrete cheating acts in separate counts. The only ones still relevant relate to

Volkswagen’s post-sale cheating. Those counts seek

to hold Volkswagen responsible for violating the

State’s Anti-Tampering Law. In other words, Ohio

alleged that Volkswagen violated state law by tampering with the emission-control systems on alreadyin-use cars. These counts did not seek to hold

Volkswagen liable for anything relating to its presale activities with respect to new cars.

6

Volkswagen moved to dismiss. It argued that the

Clean Air Act preempted Ohio’s claims. The common-pleas court agreed. State, ex rel. DeWine v.

Volkswagen Aktiengesellschaft, No. 16CV10-10206,

2018 WL 8951077, at *6–9 (Ohio Ct. Com. Pl. Dec.

07, 2018). But the Tenth District Court of Appeals

reversed. State ex rel. Yost v. Volkswagen Aktiengesellschaft, 137 N.E.3d 1267 (Ohio Ct. App. 2019).

And the Supreme Court of Ohio affirmed the Tenth

District: it held that the Clean Air Act did not

preempt Ohio’s claims. Pet.App.1a-2a, 16a.

The Supreme Court began by observing: “Congress has told us exactly what it meant to include

within the scope of the Clean Air Act’s expresspreemption provision.” Pet.App.8a. The Court noted

that the Preemption Clause forbids States from regulating “‘the control of emissions from new’” cars and

“‘new … engines.’” Id. (quoting 42 U.S.C. §7543(a)).

That language, the Court reasoned, makes clear that

the Preemption Clause “no longer applies” once a

new car is sold. Pet.App.9a. Because Ohio’s AntiTampering Law regulates tampering with cars after

sale, and because its suit sought to hold Volkswagen

accountable for post-sale tampering, neither the law

nor the suit was expressly preempted. Id.

The Court also rejected Volkswagen’s argument

that the Clean Air Act impliedly preempted the AntiTampering Law. It reasoned that a finding of implied preemption must be grounded in statutory text.

Pet.App.12a. The Court saw nothing in federal law

that would block Ohio’s lawsuit. Instead, the Court

said, Ohio law and federal law were consistent with

one another: both forbade similar conduct.

Pet.App.12a–13a. Indeed, after reviewing the rele-

7

vant Ohio statute, the Court concluded that

Volkswagen faces liability under Ohio law only because the company had “circumvent[ed]” federal law.

Pet.App.13a.

As it had rejected all of Volkswagen’s arguments

against applying Ohio law, the Ohio Supreme Court

remanded the case for trial.

REASONS FOR DENYING THE PETITION

Volkswagen appeals a non-final remand implicating a shallow, dissipating split that matters only to

those who plan to violate the Clean Air Act. The

Court should deny the company’s petition for a writ

of certiorari.

I.

Under 28 U.S.C. §1257(a), the Court lacks

jurisdiction to hear this case.

A. This Court has jurisdiction to review only “final judgment[s]” from state courts.

28 U.S.C.

§1257(a). “To be reviewable by this Court, a statecourt judgment must be final in two senses: it must

be subject to no further review or correction in any

other state tribunal; it must also be final as an effective determination of the litigation and not of merely

interlocutory or intermediate steps therein.” Jefferson v. City of Tarrant, Ala., 522 U.S. 75, 81 (1997).

Because a remand for trial is not final in either

sense, state-court decisions remanding for a trial are

not generally regarded as “final” for purposes of

§1257. See, e.g., id. at 82; O’Dell v. Espinoza, 456

U.S. 430, 430 (1982) (per curiam); S. Pac. Co. v.

Gileo, 351 U.S. 493, 496 (1956).

There are, to be sure, exceptions to this strict final-judgment rule. This Court has recognized four:

8

“In the first category are those cases in which

there are further proceedings—even entire trials—

yet to occur in the state courts but where for one reason or another the federal issue is conclusive or the

outcome of further proceedings preordained.” Cox

Broad. Corp. v. Cohn, 420 U.S. 469, 479 (1975). This

occurs, for example, when the defendant’s only defense to liability implicates the federal issue. Mills v.

Alabama, 384 U.S. 214, 217 (1966).

“Second, there are cases … in which the federal

issue, finally decided by the highest court in the

State, will survive and require decision regardless of

the outcome of future state-court proceedings.” Cox,

420 U.S. at 480.

“In the third category are those situations where

the federal claim has been finally decided, with further proceedings on the merits in the state courts to

come, but in which later review of the federal issue

cannot be had, whatever the ultimate outcome of the

case.” Id. at 481.

“Lastly, there are those situations where the federal issue has been finally decided in the state courts

with further proceedings pending in which the party

seeking review here might prevail on the merits on

nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be

preclusive of any further litigation on the relevant

cause of action rather than merely controlling the

nature and character of, or determining the admissibility of evidence in, the state proceedings still to

come.” Id. at 482–483. “In these circumstances, if a

refusal immediately to review the state-court decision might seriously erode federal policy, the Court

9

has entertained and decided the federal issue, which

itself has been finally determined by the state courts

for the purposes of the state litigation.” Id. at 483.

B. The Court lacks jurisdiction to decide this

case. Volkswagen asks this Court to review a decision remanding Ohio’s claims for trial. Absent some

exception, that remand order is not “final” for jurisdictional purposes. See Jefferson, 522 U.S. at 81.

And none of the just-discussed exceptions apply.

First, this is not a case in which “the federal issue

is conclusive or the outcome of further proceedings

preordained.” Cox, 420 U.S. at 479. Ohio has not

understood Volkswagen to argue that, aside from

preemption, it “has no defense in the [Ohio] trial

court.” Mills, 384 U.S. at 217. Volkswagen has not,

for example, argued that remand would lead “inexorably towards” judgment against it. Id.

Second, and relatedly, the federal issue in this

case is not certain to “survive and require decision

regardless of the outcome of future state-court proceedings.” Cox, 420 U.S. at 480. To the contrary, if

Volkswagen wins at trial following a remand for

some reason other than the preemption issue, the

federal issue will evaporate.

Third, remand does not foreclose the possibility of

this Court’s resolving the federal issue. Id. at 481. If

Ohio prevails at trial, Volkswagen can come back to

this Court to seek review of the preemption question.

Finally, refusal to review the case immediately

will not “seriously erode federal policy.” Id. at 483.

Even if Volkswagen is right on the merits of the

preemption issue, the federal interests served by

preemption of state laws will not be frustrated simp-

10

ly by making Volkswagen go to trial—where it might

prevail—before seeking relief in this Court.

If

Volkswagen is right that federal law preempts Ohio

law, that federal policy can be vindicated, in this

Court if necessary, in a posture when the Court unquestionably has jurisdiction.

Because none of the Cox exceptions apply, the

Court lacks jurisdiction to resolve this case. At the

very least, none of the Cox exceptions clearly applies,

making this is a poor vehicle for addressing the question presented.

II.

The split is shallow and dissipating.

Volkswagen’s leading argument for certiorari is

what it calls a “deepening” split on the question

whether the Clean Air Act preempts state antitampering laws. Pet.16. Volkswagen is correct that

there is a split of authority. But for two reasons, the

split is not significant.

First, the split has never been all that deep. No

appellate court has ever accepted Volkswagen’s arguments about express preemption: as far as Ohio is

aware, every appellate court to address the issue has

held that the Preemption Clause does not expressly

preempts laws like Ohio’s. See Counties, 959 F.3d at

1219; State v. Volkswagen AG, 279 So. 3d 1109,

1119 (Ala. 2018); 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 v. Volkswagen Aktiengesellschaft, No.

A18-0544, 2018 WL 6273103, at *6 (Minn. Ct. App.

Dec. 3, 2018).

Any split deals only with

Volkswagen’s claim that federal law impliedly

11

preempts laws regulating tampering with emission

controls post-sale.

But the split pertaining to implied preemption is

dissipating, not deepening. The Ninth Circuit and

the Supreme Court of Ohio have issued the last two

opinions addressing the matter. And both rejected

Volkswagen’s arguments. The cases on the other

side of the split all relied on the federal-district-court

decision that the Ninth Circuit reversed in Counties.

Consider the Alabama Supreme Court’s opinion. Its

analysis of the implied-preemption argument consists of twenty-four paragraphs copied from that

now-overruled opinion. State v. Volkswagen AG, 279

So. 3d at 1121–29 (citing In re Volkswagen “Clean

Diesel” Marketing, Sales Practices, & Products Liability Litig., 310 F. Supp. 3d 1030, 1040–47 (N.D.

Cal. 2018), rev’d in relevant part by Counties, 959

F.3d 1201). Beyond the Alabama Supreme Court’s

cut-and-paste opinion, Volkswagen identifies only

two unpublished opinions from intermediate courts

in Tennessee and Minnesota. Both also relied on

Counties. See Pet.16 (citing State ex rel. Slatery,

2019 WL 1220836; State v. Volkswagen Aktiengesellschaft, 2018 WL 6273103). So the momentum is all

in one direction—the split is not deepening.

At present, it appears the split among the courts

will resolve itself. There is no reason for this Court

to get involved.

III.

The decision below is correct

With a fading split, Volkswagen is left to press its

merits case as a reason for review. It comes up

short: the Clean Air Act does not expressly or impliedly preempt Ohio’s Anti-Tampering Law.

12

A.

Volkswagen’s express-preemption

argument is meritless.

Recall the text of the Preemption Clause: “No

State or any political subdivision thereof shall adopt

or attempt to enforce any standard relating to the

control of emissions from new” cars or “new … engines.” 42 U.S.C. §7543(a). Here, it is undisputed

that Ohio seeks relief for actions Volkswagen took

post-sale, not for actions Volkswagen took on “new”

cars or engines. That ought to end the expresspreemption argument. But Volkswagen persists. It

argues that the conduct Ohio targets “relates to” the

originally manufactured cars, and thus violates the

Act’s prohibition on States’ adopting or enforcing

standards “relating to” new cars and new engines.

Pet.24. Volkswagen supports this theory with four

arguments. None has any merit.

1. First, Volkswagen stresses that “relating to” is

a broad phrase, meaning “‘to stand in some relation;

to have bearing or concern; to pertain; refer; to bring

into association with or connection with.’” Morales v.

TWA, 504 U.S. 374, 383 (1992) (quoting Black’s Law

Dictionary 1158 (5th ed. 1979)). And it notes that

liability for actions taken post-sale can “relat[e] to”

“the control of emissions from new” cars. 42 U.S.C.

§7543(a); accord 59 Fed. Reg. 31306, 31313, 31331

(cited at Pet.26). Therefore, Volkswagen argues,

Ohio’s Anti-Tampering Law is preempted.

The problem with this argument is that its conclusion does not follow from its premises.

Volkswagen is right that “relating to” has a broad

meaning. And it is correct that laws nominally targeting post-sale conduct can “relate to” emissioncontrol systems on new cars—imagine, for example, a

13

law forbidding any citizen from refueling a vehicle

that emits pollutants at a federally approved level.

The problem for Volkswagen is that Ohio’s AntiTampering Law, in its application to already-in-use

vehicles, does not set standards that relate—directly

or indirectly—to “the control of emissions from new

motor vehicles.” Indeed, the Anti-Tampering Law is

completely indifferent to how the emission-control

system worked when the car was sold. It simply

prohibits “[t]amper[ing] with any emission control

system installed on or in a motor vehicle after sale,

lease, or rental and delivery of the vehicle.” Ohio

Rev. Code §3704.16(C)(3) (emphasis added). The

phrase “relating to” is broad. But it is not so broad

that a state law that regulates work on in-use cars

without regard to their original condition can be described as “relating to” new cars.

2. Volkswagen next argues that Ohio’s claims

“necessarily relate back to the original design” of

Volkswagen’s vehicles. Pet.26 (internal quotation

omitted; alteration accepted). Why? Because, according to Volkswagen, Ohio’s claims pertain to tampering that “did not fully remedy” the problems with

the initial design. Id. According to Volkswagen, “the

only basis for penalizing the updates” Volkswagen

installed “is that they did not fully remedy the excess

emissions caused by the factory-installed software.”

Id.

No. Ohio’s claims have nothing to do with problems pertaining to “factory-installed software.”

Whether that software was flawed or flawless makes

absolutely no difference to the State’s claims. Ohio is

simply alleging that Volkswagen “tampered with”

the car’s emission system—that it “remove[d] per-

14

manently, bypass[ed], defeat[ed], or render[ed] inoperative, in whole or part,” the “emission control system … installed on or in” Volkswagen’s cars. Ohio

Rev. Code §3704.16(A)(1). Contrary to Volkswagen,

it does not matter whether the company’s new vehicles, “as manufactured,” violated the Clean Air Act’s

“new-vehicle emission standards.” Pet.26.

3. Volkswagen next accuses the Ohio Supreme

Court of having ignored this Court’s “instruction” to

“examine how EPA enforces the [Clean Air Act’s]

new-vehicle standards to identify the ‘standardenforcement efforts that are proscribed by’” the

Preemption Clause. Pet.26–27 (quoting Engine Mfrs.

Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S.

246, 253 (2004)). Even if that were what the Court

said, it is hardly relevant to this case: nothing about

the EPA’s enforcement of new-vehicle standards suggests that Ohio’s Anti-Tampering Law is the sort of

“standard-enforcement effort[]” that the Clean Air

Act proscribes. In any event, Volkswagen rips the

quote from context. Here is the full passage:

Manufacturers (or purchasers) can be

made responsible for ensuring that vehicles comply with emission standards, but

the standards themselves are separate

from those enforcement techniques.

While standards target vehicles or engines, standard-enforcement efforts that

are proscribed by [the Preemption

Clause] can be directed to manufacturers

or purchasers.

South Coast, 541 U.S. at 253. This cannot plausibly

be read, as Volkswagen suggests, to mean that the

15

Preemption Clause’s scope ebbs and flows based on

the EPA’s current enforcement approach.

4. Volkswagen concludes its express-preemption

argument with a puzzle Volkswagen has never been

able to solve. Volkswagen says that Ohio may regulate a consumer or a mechanic who does the exact

same thing as Volkswagen. But Ohio may not regulate Volkswagen, the manufacturer. Pet.29. Why

not? Other than vague handwaving about the EPA’s

role, Volkswagen never connects this “manufacturer”

exception to the text. And that gives away the game:

if the Preemption Clause permits Ohio to forbid postsale tampering, it may apply that law to big companies and independent mechanics alike. This Court

does “not ‘interpret’ statutes by gerrymandering

them with a list of exceptions that happen to describe

a party’s case.” United States v. Apel, 571 U.S. 359,

372 (2014).

B.

Volkswagen’s implied-preemption

argument has no textual grounding.

Volkswagen next turns to an argument that one

district court adopted and that a few other courts followed. (The district-court decision has since been reversed. See Counties, 959 F.3d 1201.) Volkswagen’s

implied-preemption argument takes many forms.

But the gist is this: the many provisions empowering

the EPA to regulate new cars emanate penumbras

that give the EPA exclusive authority to regulate

manufacturers’ tampering with emission systems on

in-use cars.

“That kind of argument may have carried some

force back when courts paid less attention to statutory text as the definitive expression of Congress’s

16

will.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 140

S. Ct. 2335, 2349 (2020) (plurality). It carries none

today. Volkswagen invokes obstacle preemption—

the version of preemption under which state laws are

unenforceable if they “stand[] as an obstacle to” the

accomplishment and execution of the full purposes

and objectives of Congress. See, e.g., Gade v. Nat’l

Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 103 (1992).

But these purposes and objectives must derive from

the statute itself. “[A]ll preemption arguments,” the

Court recently reiterated, “must be grounded” in

statutory text. Kansas v. Garcia, 140 S. Ct. 791, 804

(2020). And nothing in the Clean Air Act’s text suggests that state laws regulating post-sale tampering

with emission-control devices thwart the Act’s objective of allowing the EPA alone to regulate new-car

emissions.

1. Volkswagen begins by insisting that “Congress

granted EPA alone the tools to regulate manufacturers’ conduct both pre- and post-sale.” Pet.29. But

Congress said exactly the opposite when it preserved

the States’ “right otherwise to control, regulate, or

restrict the use, operation, or movement of registered

or licensed” cars. 42 U.S.C. §7543(d). Volkswagen

admits that this language lets the States regulate

mechanics or consumers who tamper with emission

controls. Pet.29. Volkswagen has not plausibly explained how the same language exempts fraudsters

who happen also to make the cars with which they

later tamper.

2. Volkswagen shifts attention to the Ohio Supreme Court. It insists the Court erred by stating

that, “as long as Volkswagen complies with, rather

than circumvents, federal law it will have nothing to

17

worry about in Ohio.” Pet.29 (quoting Pet.App.13a)).

Whatever one makes of this statement, it is irrelevant to Volkswagen’s petition for a writ of certiorari.

For one thing, this court reviews judgments, not dicta in opinions. Jennings v. Stephens, 574 U.S. 271,

277 (2015). For another, because Volkswagen’s tampering violated federal law, see Br. for United States

as Amicus in No. 20-994, at 7, 19–20 (Sept. 27, 2021),

this case does not present the question whether it

would have been liable had it complied with federal

law.

3. Volkswagen next claims that, if States and the

federal government alike can punish environmentallaw violations, then the EPA will find it “impossible”

to quantify penalties for breaking those laws. Pet.31.

That is a non sequitur. The Clean Air Act nowhere

makes the federal EPA the lone decisionmaker about

what a lawbreaker should pay for its lawbreaking.

That silence aligns with the default power of the

States and the federal government to punish the

“same act.” Gamble v. United States, 139 S. Ct. 1960,

1966 (2019). Time and again, this Court has decided

that States may impose sanctions alongside or on top

of federal sanctions. See, e.g., California v. ARC Am.

Corp., 490 U.S. 93, 105 (1989); Silkwood v. KerrMcgee Corp., 464 U.S. 238, 257 (1984). And nothing

in the Clean Air Act says otherwise. State sovereignty does not bow to the “priorities or preferences of

federal officers,” Garcia, 140 S. Ct. at 807, or the

“unenacted approvals, beliefs, and desires” of Congress, P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501 (1988). In the end,

whatever “tension” may arise from state and federal

overlap is a question for Congress. If Congress is

18

willing to “tolerate” that tension, a court “can do no

less.” Silkwood, 464 U.S. at 256.

In any event, Volkswagen is wrong to invoke possible future penalties to block the process of establishing its liability under Ohio law now. For now, it

is speculation to worry about excess penalties, and

any truly excessive penalties can be corrected if they

are ever imposed. A court generally has discretion to

“mitigate any hardship or injustice when” it applies a

“statute’s penalty provision.” Cty. of Maui, 140 S. Ct.

at 1477. Under the Clean Air Act, federal courts imposing penalties must consider the “size of the violator’s business” and “the effect of the penalty on the

violator’s ability to continue in business,” and “such

other matters as justice may require.” 42 U.S.C.

§7524(b). Volkswagen has not identified anything in

Ohio law that would bar courts from similarly calibrating their own penalties. Indeed, any penalties

imposed at trial could be reviewed on appeal for an

abuse of discretion. See, e.g., State ex rel. Brown v.

Dayton Malleable, Inc., 1 Ohio St. 3d 151, 158 (1982);

see also id. at 158–59 (Holmes, J., dissenting) (opining that amount of fine was excessive).

4. Speculating some more, Volkswagen says that,

if the States are allowed to regulate post-sale fraud,

car manufacturers will be reluctant to settle with the

EPA. Volkswagen says settlement would then expose the companies to tag-along state penalties.

Pet.32. In this case, that is water over the dam, as

Volkswagen has settled the federal claims. Regardless, federal enforcement priorities are no reason to

preempt Ohio’s enforcement. This Court quite recently explained that “the possibility that federal enforcement priorities might be upset is not enough to

19

provide a basis for preemption.” Garcia, 140 S. Ct. at

807. The States have enforcement priorities too.

5. Finally, Volkswagen floats the idea that blocking Ohio’s enforcement action is needed to preserve

federal authority to police fraud on the EPA. Pet.33–

34 (citing Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001)). To Volkswagen, Ohio’s enforcement action is analogous to state-law suits that

try to police fraud against a federal agency. Id. But

once again, this misunderstands the nature of Ohio’s

suit: Ohio is suing Volkswagen not because it defrauded the EPA, but rather because it tampered

with emission-control systems post-sale in violation

of Ohio law.

CONCLUSION

The Court should deny the petition for a writ of

certiorari.

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Respectfully submitted,

DAVE YOST

Attorney General of Ohio

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

30 East Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@ohioago.gov

Counsel for Respondent

Ohio Attorney General Dave Yost

OCTOBER 2021