Petition for Writ of Certiorari — Minnesota Automobile Dealers Association, Petitioner v. Minnesota Pollution Control Agency

No. _____

IN THE

———————

MINNESOTA AUTOMOBILE DEALERS ASSOCIATION,

Petitioners,

—V.—

MINNESOTA POLLUTION CONTROL AGENCY,

Respondent.

———————

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MINNESOTA

———————

PETITION FOR A WRIT OF CERTIORARI

———————

James V.F. Dickey

Counsel of Record

Douglas P. Seaton

UPPER MIDWEST LAW CENTER

8421 Wayzata Boulevard, Suite 300

Golden Valley, MN 55426

James.Dickey@umwlc.org

(612) 428-7002

Counsel for Petitioner

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

Whether, under Section 177 of the Clean Air Act,

Minnesota qualifies to adopt California’s vehicle emission standards when there are no areas in Minnesota

which fail to satisfy the National Ambient Air Quality

Standards.

ii

PARTIES TO THE PROCEEDING

Petitioner Minnesota Automobile Dealers Association is a Minnesota trade association that advocates

on behalf of its dealer-members in the Minnesota retail motor vehicle industry.

Respondent Minnesota Pollution Control Agency is

a Minnesota state agency.

CORPORATE DISCLOSURE STATEMENT

Petitioner Minnesota Automobile Dealers Association certifies that it has no parent companies, that no

publicly held companies own 10% or more of its stock,

and that no publicly traded companies or corporations

have an interest in the outcome of this appeal.

STATEMENT OF RELATED CASES

This case arises from and is related to the following proceedings in the Minnesota Court of Appeals

and the Minnesota Supreme Court:

•

Minn. Auto. Dealers Ass’n v. Minn. Pollution

Control Agency, No. A22-0796, 986 N.W.2d

225 (Minn. Ct. App.), opinion issued January

30, 2023;

•

Minn. Auto. Dealers Ass’n v. Minn. Pollution

Control Agency, No. A22-0796, 2023 Minn.

LEXIS 231 (Minn.), denial of petition for review, decided May 16, 2023; and

•

Minn. Auto. Dealers Ass’n v. Minn. Pollution

Control Agency, No. A22-0796, judgment entered May 25, 2023 (Minn. Ct. App.).

iii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING .......................... ii

CORPORATE DISCLOSURE STATEMENT ........... ii

STATEMENT OF RELATED CASES ...................... ii

TABLE OF CONTENTS ........................................... iii

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

OPINIONS BELOW .................................................. 1

JURISDICTION......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................ 1

STATEMENT OF THE CASE ................................... 2

REASONS FOR GRANTING THE PETITION ........ 6

I. The Clean Air Act’s “California Waiver” Is a

Limited Exception to the Norm of Federal

Preemption

of

Motor-Vehicle-Emissions

Regulations Which States Cannot Manipulate to

Adopt Stricter Standards. ................................. 7

II. Minnesota and Other States Like It Do Not

Qualify to Adopt California’s Vehicle-Emission

Standards Under Section 177 of the Clean Air

Act. ..................................................................... 8

A. Section 177 of the Clean Air Act Only Allows

a State to Make Use of a California Waiver

Where the State Has Actual Nonattainment

Areas. ............................................................ 9

iv

B. Maintenance Plans Are Not “Plans Approved

Under This Part” Which Qualify for the

California Waiver. ...................................... 11

III. Minnesota’s

Manipulation

of

Eagan’s

“Nonattainment” Status Provides a Good

Vehicle to Restore the Purpose of the Clean Air

Act’s California Waiver Provision. .................. 13

CONCLUSION......................................................... 14

APPENDIX

Minnesota Court of Appeals, Judgment, May 25,

2023 ................................................................... App. 1

Minnesota Court of Appeals, Opinion, January 30,

2023 ................................................................... App. 3

Minnesota Supreme Court, Order, May 16,

2023 ................................................................. App. 29

Minnesota Court of Appeals, Petition for Declaratory

Judgment, June 8, 2022 ................................. App. 31

Minnesota Motor Vehicle Rules ..................... App. 50

v

TABLE OF AUTHORITIES

Cases

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120 (2000) ................................................................ 9

Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc.,

554 U.S. 33 (2008) ................................................... 9

King v. Burwell, 576 U.S. 473 (2015) ......................... 9

Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S.

Ct. 883 (2018) ........................................................ 10

Wall v. United States EPA, 265 F.3d 426 (6th Cir.

2001) ...................................................................... 11

Statutes

28 U.S.C. § 1257(a) ..................................................... 1

42 U.S.C. § 7407(d)(1)(A)(i) ...................................... 10

42 U.S.C. § 7407(d)(1)(A)(ii) ..................................... 12

42 U.S.C. § 7407(d)(3)(D) .......................................... 11

42 U.S.C. § 7410(a)(2)(I) ........................................... 11

42 U.S.C. § 7501(2) ................................................... 10

42 U.S.C. § 7502(c) .................................................... 10

42 U.S.C. § 7505a ................................................ 11, 12

42 U.S.C. § 7507 ........................................ 2, 4, 8, 9, 11

42 U.S.C. § 7521 .......................................................... 8

42 U.S.C. § 7543(a) ................................... 1, 4, 7, 8, 10

42 U.S.C. § 7543(b) ..................................................... 7

vi

Rules

Minn. R. 7023.0150 ..................................................... 3

Regulations

45 Minn. Reg. 663 (Dec. 21, 2020) .............................. 3

46 Minn. Reg. 66 (July 26, 2021)............................ 3, 8

75 Fed. Reg. 71033 (Nov. 22, 2010) .......................... 13

80 Fed. Reg. 51127 (Aug. 24, 2015) .................. 5, 8, 13

84 Fed. Reg. 51310 (Sept. 27, 2019) ........... 3, 4, 10, 11

87 Fed. Reg. 14332 (Mar. 14, 2022)............................ 4

Other Authorities

Eagan at a Glance, City of Eagan, Minnesota........... 5

Eagan, Minnesota Technical Support Document, U.S.

EPA ...................................................................... 5, 8

Fact Sheet, Decision, National Ambient Air Quality

Standards for Lead, U.S. EPA.............................. 14

Gasoline Explained: History of Gasoline, United

States Energy Information Administration,

EIA.gov .................................................................. 13

Nonattainment and Maintenance Area Dashboard,

U.S. EPA .................................................................. 6

QuickFacts, Minnesota, United States Census

Bureau ..................................................................... 5

States that have Adopted California’s Vehicle

Standards under Section 177 of the Federal Clean

Air Act, California Air Resources Board, May 13,

2022 ......................................................................... 6

1

OPINIONS BELOW

The Minnesota Court of Appeals decision appears

at 986 N.W.2d 225 and is reproduced at App. 3. The

Minnesota Supreme Court’s denial of review appears

at 2023 Minn. LEXIS 231 and is reproduced at App.

29.

JURISDICTION

The Minnesota Court of Appeals issued its decision

on January 30, 2023. The Minnesota Supreme Court

denied review on May 16, 2023, and judgment was entered on May 25, 2023, rendering the Court of Appeals

judgment final and subject to no further review by any

Minnesota state court. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 209(a) of the Clean Air Act (42 U.S.C. §

7543(a)) states, in relevant part:

State standards

(a) Prohibition

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.

No State shall require certification, inspection, or any other approval relating to

the control of emissions from any new motor vehicle or new motor vehicle engine as

condition precedent to the initial retail

sale, titling (if any), or registration of such

2

motor vehicle, motor vehicle engine, or

equipment.

Section 177 of the Clean Air Act (42 U.S.C. § 7507)

states, in relevant part:

New motor vehicle emission standards in nonattainment areas

Notwithstanding section 7543(a) of this title, any State which has plan provisions

approved under this part may adopt and

enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines

and take such other actions as are referred

to in section 7543(a) of this title respecting

such vehicles if—

(1) such standards are identical to the

California standards for which a waiver

has been granted for such model year, and

(2) California and such State adopt

such standards at least two years before

commencement of such model year (as determined by regulations of the Administrator).

STATEMENT OF THE CASE

Petitioner Minnesota Automobile Dealers Association (“MADA”) is a trade association representing the

majority of retail automobile dealers in the State of

Minnesota.

On December 21, 2020, the Minnesota Pollution

Control Agency (“MPCA”) published in the Minnesota

State Register notice of its intent to adopt rules related to “vehicle greenhouse gas emissions standards”

3

(the “Rules”) which follow California’s standards

based on California’s waiver from the federal Clean

Air Act’s (“CAA”) uniformity requirement for vehicle

tailpipe emissions. 45 Minn. Reg. 663-670. After notice, comments, a hearing, and a report of the Administrative Law Judge, the Rules were approved and

adopted by publication in the State Register on July

26, 2021. 46 Minn. Reg. 66.

These Rules incorporate by reference “California

Code of Regulations, title 13, sections 1900, 1956.8(h)

(medium-duty vehicle greenhouse gas emission standards only), 1961.2, 1961.3, 1962.2, 1962.3, 1965,

1968.2, 1976, 1978, 2035, 2037 to 2041, 2046, 2062,

2109, 2111 to 2121, 2122 to 2135, 2139, and 2141 to

2149, as amended.” Minn. R. 7023.0150, Subp. 2. The

California standards referenced include standards for

Low Emission Vehicles (LEV) and Zero Emission Vehicles (ZEV).

The Rules state that they become effective “on the

date given in a commissioner’s notice published in the

State Register after the standards incorporated by reference in subpart 2 are granted a waiver by the U.S.

Environmental Protection Agency under United

States Code, title 42, section 7543.” Minn. R.

7023.0150, Subp. 4.

When the EPA issued its former SAFE I rule in

2019, now rescinded, it noted that CAA Section 177 is

limited to those states with “plan requirements for

nonattainment areas.” 84 Fed. Reg. 51310, 51350

(Sept. 27, 2019) (emphasis added). The EPA stated

that as such, because greenhouse gas emissions do not

relate to criteria pollutants which have an assigned

National Ambient Air Quality Standard (“NAAQS”),

California could not use a waiver to regulate tailpipe

4

emissions. Id. The EPA stated that “the text, placement in Title I, and relevant legislative history are all

indicative that CAA section 177 is in fact intended for

NAAQS attainment planning and not to address

global air pollution.” Id. at 51351 (emphasis added).

On March 14, 2022, the EPA later withdrew this

“non-binding” interpretation with another non-binding interpretation after the new executive administration took control of the EPA. 87 Fed. Reg. 14332,

14375-76. The EPA also rescinded its waiver withdrawal in the SAFE I rule and fully restored California’s authority under the CAA to implement its own

greenhouse gas emission standards and zero emission

vehicle sales mandate. 87 Fed. Reg. 14332-33.

The MPCA purports to adopt California’s emissions standards under Section 177, which provides an

exception to the general prohibition stated in CAA

Section 209(a), 42 U.S.C. § 7543(a) against States

“adopt[ing] or attempt[ing] to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part

[42 U.S.C. §§ 7521 et seq.].” The exception outlined in

Section 177 provides that a State may do what section

209(a) prohibits so long as that State “has plan provisions approved under this part [42 U.S.C. §§ 7501 et

seq.],” the standards “are identical to the California

standards,” and the standards are adopted “at least

two years before commencement of such model year.”

42 U.S.C. § 7507.

In contention is whether Minnesota “has plan provisions approved under this part [42 U.S.C. §§ 7501 et

seq.].” Minnesota only has one technical “non-attainment” area—in Eagan, based on lead-emissions issues

that were identified in 2008, with NAAQS achieved by

5

2015. 80 Fed. Reg. 51127 (Aug. 24, 2015). The only apparent reason that the Eagan lead-emissions matter

has not been redesignated to “attainment” is that the

MPCA has failed to request redesignation.

Eagan, Minnesota is a suburb of St. Paul, with a

population of approximately 69,086. Eagan at a

Glance, City of Eagan, Minnesota, available at

https://cityofeagan.com/at-a-glance-demographics

(last visited Aug. 10, 2023). The population of Minnesota is approximately 5.7 million. QuickFacts, Minnesota, United States Census Bureau, available at

https://www.census.gov/quickfacts/MN (last visited

Aug. 10, 2023). Eagan thus represents about 0.01% of

Minnesota’s population. And, in fact, the technical

“nonattainment” area in Eagan is much smaller than

the whole city—it surrounds the one secondary lead

smelter in the area, Gopher Resource Corporation.

Eagan, Minnesota Technical Support Document, U.S.

EPA, at p. 6, available at https://www.epa.gov/

sites/default/files/2016-04/documents/05_mn_epamod

2.pdf (last visited Aug. 10, 2023). It follows that the

lead emissions at issue are derived from lead smelting, not tailpipe emissions from motor vehicles using

unleaded gasoline.

On June 8, 2022, Petitioner MADA brought a declaratory judgment action directly in the Minnesota

Court of Appeals to challenge the enactment of the

rules in question. App. 31. MADA raised the question

of whether Minnesota has the authority under the

Clean Air Act to adopt California’s motor-vehicleemissions standards in its Petition for a Declaratory

Judgment and in its briefs to the Minnesota Court of

Appeals. App. 47-48. The Minnesota Court of Appeals

squarely addressed this federal question in its opinion

on appeal here. App. 25-27. MADA then presented the

6

issue for review to the Minnesota Supreme Court,

which denied discretionary review. App. 29-30. The

federal question presented to the Court here was thus

timely and properly raised, and the Court has jurisdiction to review the state-court judgment on a writ of

certiorari.

REASONS FOR GRANTING THE PETITION

As many State legislatures and regulatory bodies

steer their states into greater restrictions on motorvehicle emissions, this case presents a question of national importance: can states opt into California motor-vehicle emissions standards under Section 177 of

the Clean Air Act on the basis of having a technical

“nonattainment” area when the EPA has cited their

technical “nonattainment” area as actually having

achieved attainment with the relevant National Ambient Air Quality Standard (“NAAQS”) for nearly a

decade?

To underscore the importance of the issue presented in this case, as of May 2022, seventeen (17)

states, including Minnesota, have adopted California’s emissions regulations. States that have Adopted

California’s Vehicle Standards under Section 177 of

the Federal Clean Air Act, California Air Resources

Board, May 13, 2022, available at https://ww2.arb.ca.

gov/sites/default/files/2022-05/%C2%A7177_states_

05132022_NADA_sales_r2_ac.pdf (last accessed Aug.

10, 2023). Like Minnesota, another of those states,

Maine, has no areas in the state which are not in compliance with the NAAQS. See Nonattainment and

Maintenance Area Dashboard, U.S. EPA, available at

https://edap.epa.gov/public/extensions/S4S_Public_Dashboard_1/S4S_Public_Dashboard_1.html (last

accessed Aug. 10, 2023). This case provides an ideal

7

vehicle to adjudicate the meaning of Section 177 for

States in full compliance with federal NAAQS.

MADA asks the Court to grant the petition, issue

the writ of certiorari, and decide that States like Minnesota cannot use outdated technical nonattainment

designations (or maintenance plans) having nothing

to do with motor-vehicle emissions to justify adopting

California’s motor-vehicle emissions rules.

I. The Clean Air Act’s “California Waiver” Is a

Limited Exception to the Norm of Federal

Preemption of Motor-Vehicle-Emissions

Regulations Which States Cannot Manipulate to Adopt Stricter Standards.

Under Section 209 of the Clean Air Act, exclusive

control over “standards relating to the control of emissions from new motor vehicles” is vested in the federal

government, and the states are preempted from regulating in the area. See 42 U.S.C. § 7543(a). States may

not adopt any other standard unless they are qualified

under the Act to do so. The statute provides a single

exception for California, the only state that regulated

new-vehicle emissions prior to the original Clean Air

Act. 42 U.S.C. § 7543(b).

Under that exception, California may adopt and

enforce its own new-vehicle emissions standards if it

first obtains a waiver from the EPA. See id. California

alone may apply for such a waiver under the Act.

Section 177 of the Act also contains an “opt-in” provision that allows any other state to “adopt and enforce for any model year standards relating to control

of emissions from new motor vehicles” if “such standards are identical to the California standards for

which a waiver has been granted for such model year”

8

and are adopted “at least two years before commencement of such model year.” 42 U.S.C. § 7507.

Thus, there are two, and only two, permissible sets

of regulations limiting emissions from new cars sold

in the United States. There are the California regulations, and there are the federal regulations. The other

states must choose between California and federal

regulations. 42 U.S.C. §§ 7521, 7543(a). The federal

regulation is the norm; the California opt-in regulation is the exception.

On July 26, 2021, Minnesota sought to join the

“California states” by enacting rules that adopt the

California rules related to Low Emission Vehicles

(“LEV”) and Zero Emission Vehicles (“ZEV”), “as

amended.” 46 Minn. Reg. 66. However, at that time,

as well as at present, Minnesota’s only “nonattainment” area was one location within Eagan, Minnesota, related to lead emissions largely produced by a

secondary lead smelter. Eagan, Minnesota Technical

Support Document, U.S. EPA, at p. 6. That area attained the NAAQS for lead emissions on August 24,

2015. 80 Fed. Reg. 51127. At the time the rules were

enacted, and through the present, there have not been

any areas in Minnesota which are not attaining all

NAAQS.

II. Minnesota and Other States Like It Do Not

Qualify to Adopt California’s Vehicle-Emission Standards Under Section 177 of the

Clean Air Act.

All areas in Minnesota are in complete attainment

with federal NAAQS. In other words, Minnesota is not

California. It does not have California’s smog and airpollution problems—so long as Canada keeps its forests from burning down. Minnesota cannot escape

9

federal preemption for new-vehicle-emissions rules

under the CAA.

Minnesota has adopted California’s new-vehicleemissions rules for LEV and ZEV pursuant to Section

177 of the CAA anyway. But the text and purpose of

Section 177 of the CAA demonstrate that States like

Minnesota cannot fail to seek redesignation of

NAAQS-compliant areas to attainment status to allow them to adopt harsher restrictions on the sales of

motor vehicles in the State.

A. Section 177 of the Clean Air Act Only Allows a State to Make Use of a California

Waiver Where the State Has Actual Nonattainment Areas.

The plain meaning of CAA Section 177, 42 U.S.C.

§ 7507, only allows states with actual nonattainment

areas to adopt California’s CAA-waiver emissions

standards. As this Court pointed out in King v. Burwell, “oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become evident when

placed in context.’” 576 U.S. 473, 486 (2015) (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 132 (2000)). “So when deciding whether the language is plain, one must read the words ‘in their context and with a view to their place in the overall statutory scheme.’” Id. (quoting Williamson Tobacco

Corp., 529 U.S. at 133).

But even if Section 177 were ambiguous, “statutory titles and section headings are tools available for

the resolution of a doubt about the meaning of a statute.” Fla. Dep’t of Revenue v. Piccadilly Cafeterias,

Inc., 554 U.S. 33, 47 (2008). They “‘supply cues’ as to

10

what Congress intended.” Merit Mgmt. Grp., LP v.

FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018).

Part D of Subchapter I of the CAA imposes pollution control requirements that apply only to nonattainment areas. A nonattainment area is a geographical region which does not meet a NAAQS for any particular pollutant. See 42 U.S.C. §§ 7501(2);

7407(d)(1)(A)(i). The heading of Section 177 identifies

the qualification required for opting into the California waiver: “New motor vehicle emission standards in

nonattainment areas.” (emphasis added). Section 177

then states, “any State which has plan provisions approved under this part” may adopt the California

waiver allowed under Section 209(a), 42 U.S.C. §

7543(a). The language of Section 177 makes no reference to any “plan provision” other than a “nonattainment plan,” as identified in the heading of the section.

“Nonattainment plans” by definition exist for certain

areas failing to meet any type of NAAQS. 42 U.S.C. §

7502(a). They are also the plans “required to be submitted under this part.” 42 U.S.C. § 7502(c).

In addition, once a state has no literal nonattainment areas—those areas not complying with federal

NAAQS—there is no reason for a California waiver.

The only point of a California waiver is to help California and other states reduce criteria pollutant emissions to improve air quality to the level of federal

standards. Once that goal is reached, the area is in

“attainment,” and only “maintenance” is required to

keep criteria pollutants under the federal NAAQS.

This is why the EPA, in enacting the now-withdrawn SAFE I Rule in 2019, noted that Section 177 is

limited to those states with “plan requirements for

nonattainment areas.” 84 Fed. Reg. 51310, 51350

11

(Sept. 27, 2019) (emphasis added). The EPA stated

that “the text, placement in Title I, and relevant legislative history are all indicative that CAA section 177

is in fact intended for NAAQS attainment planning

and not to address global air pollution.” Id. at 51351

(emphasis added).

B. Maintenance Plans Are Not “Plans Approved Under This Part” Which Qualify

for the California Waiver.

If a geographical area under a nonattainment plan

reaches attainment, under 42 U.S.C. § 7505a, a State

may apply to convert the plan into a “maintenance

plan,” which lasts for essentially 20 years. Section 177

in its heading, of course, only references “nonattainment plans,” not “maintenance plans.”

A state may request the EPA to redesignate an

area from nonattainment to attainment status if that

area has improved in air quality. See 42 U.S.C. §

7407(d)(3)(D). After an area is so redesignated, it no

longer need comply with the more stringent air pollution measures that apply only to nonattainment areas. Cf. 42 U.S.C. § 7410(a)(2)(I) (requiring plans for

nonattainment areas to meet the “applicable requirements of part D”). The responsibility, instead, is on

the State to apply the enforcement provisions from its

maintenance plan. See 42 U.S.C. § 7505a(a) & (d) (requiring maintenance plans that are submitted with

redesignation requests to include “such contingency

provisions as the Administrator deems necessary to

assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.”); Wall v.

United States EPA, 265 F.3d 426, 429-30 (6th Cir.

2001).

12

A “maintenance plan,” which was added to the law

in 42 U.S.C. § 7505a well after the creation of “nonattainment” areas, results not from an approval of a

“plan . . . under this part,” but rather is allowed after

an area has been redesignated from “nonattainment”

to an “attainment” area. Then, it is not its own “plan”;

it is a “revision of” a nonattainment plan. A maintenance plan merely “provide[s] for the maintenance of

the national primary ambient air quality standard.”

42 U.S.C. § 7505a(a). This comports with the Act’s definition of an “attainment” area as “any area [...] that

meets the national primary or secondary ambient air

quality standard for the pollutant.” 42 U.S.C. §

7407(d)(1)(A)(ii). Thus, an area redesignated as “attainment” may have a maintenance plan to ensure

that it maintains the national standard it has attained. By definition, the Act does not contemplate a

“maintenance” plan for a “nonattainment” area because the latter has not met the national standard so

as to be capable of “maintaining” it.

The Clean Air Act preempts any attempt to regulate vehicles differently than its prescriptions. The

“California Waiver” cannot be read to apply to nonattainment and maintenance plans; doing so would undermine the statute’s purpose. If states with only

maintenance plans—i.e., states that are maintaining

the Federal standard—could opt-in to the California

standards, then the provision would cease to be an exception and would swallow the normative principle of

federal preemption.

13

III. Minnesota’s Manipulation of Eagan’s

“Nonattainment” Status Provides a Good

Vehicle to Restore the Purpose of the

Clean Air Act’s California Waiver Provision.

On November 22, 2010, a small slice of Eagan,

Minnesota, was designated a “nonattainment” area

for failing the 2008 EPA Lead standard. 75 Fed. Reg.

71033, 71042. But then in 2015, the EPA announced

that Eagan had attained compliance with the 2008

Lead standard. 80 Fed. Reg. 51127. That notice

stated: “[t]his action does not constitute a redesignation of the areas to attainment of the 2008 Pb NAAQS;

the areas remain designated nonattainment until

such time as EPA determines that the areas meet the

CAA requirements for redesignation to attainment

and takes action to redesignate the areas.” Id. at

51129.

Minnesota has neglected to seek redesignation for

Eagan since the EPA’s 2015 recognition that Eagan

meets the standard for lead. Minnesota has been able

to apply for redesignation for nearly a decade, and it

has chosen not to.

Moreover, Minnesota’s only technical nonattainment area, related to lead, has nothing to do with

greenhouse gas emissions for new motor vehicles in

the United States: “leaded gasoline for use in on-road

vehicles was completely phased out as of January 1,

1996.” Gasoline Explained: History of Gasoline,

United States Energy Information Administration,

EIA.gov, Nov. 17, 2022, ¶ 3, https://www.eia.gov/energyexplained/gasoline/history-of-gasoline.php (last accessed Aug. 10, 2023). The EPA acknowledged this

14

when, in 2016, it decided to retain its 2008 NAAQS for

lead:

The major sources of lead air emissions have

historically been motor vehicles (such as cars

and trucks) and industrial sources. Motor vehicle emissions have been dramatically reduced with the phase-out of leaded gasoline,

but lead is still used as an additive in general

aviation gasoline and remains a trace contaminant in other fuels.

Fact Sheet, Decision, National Ambient Air Quality

Standards for Lead, U.S. EPA, at p. 3 of 4, available

at www.epa.gov/sites/default/files/2016-09/documents

/pb_naaqs_nfr_fact_sheet.pdf (last accessed Aug. 10,

2023).

Thus, Eagan, Minnesota, only technically remains

a nonattainment area due to the MPCA’s inaction,

and its original nonattainment designation in no way

relates to motor-vehicle greenhouse gas emissions,

the only emissions regulated by the California regulations that Minnesota has opted into under Section

177. Given these circumstances, the MPCA’s decision

to opt-in to the California standards runs contrary to

the plain reading of the CAA. This case provides an

ideal vehicle for this Court to adjudicate the meaning

of Section 177 for States in full compliance with federal NAAQS.

15

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that this Court grant the petition for a writ

of certiorari.

Respectfully submitted,

James V. F. Dickey

Counsel of Record

Douglas P. Seaton

UPPER MIDWEST LAW CENTER

8421 Wayzata Boulevard, Suite 300

Golden Valley, MN 55426

james.dickey@umlc.org

(612) 428-7002

Counsel for Petitioner

August 14, 2023