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

Supreme Court briefAug 14, 2023

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APPENDIX TABLE OF CONTENTS

Appendix A: Minnesota Court of Appeals,

Judgment, May 25, 2023 . . . . . . . . . . . . . . . . . . . . 1a

Appendix B: Minnesota Court of Appeals, Opinion,

January 30, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 3a

Appendix C: Minnesota Supreme Court, Order,

May 16, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a

Appendix D: Minnesota Court of Appeals, Petition

for Declaratory Judgment, June 8, 2022 . . . . . . 31a

Appendix E: Minnesota Motor Vehicle Rules . 50a

APPENDIX A

STATE OF MINNESOTA

COURT OF APPEALS

Minnesota Automobile Dealers Association,

Petitioner,

vs.

Minnesota Pollution Control Agency,

Respondent.

Appellate Court # A22-0796

Trial Court # OAH 71-9003-36416

JUDGMENT

Pursuant to a decision of the Minnesota Court of

Appeals duly made and entered, it is determined and

adjudged that the decision of the Minnesota Pollution

Control Agency herein appealed from be and the same

hereby is rule declared valid and judgment is entered

accordingly.

Dated and signed: May 25, 2023

FOR THE COURT

Attest: Christa Rutherford-Block

Clerk of the Appellate Courts

By:

/s/

Assistant Clerk

STATE OF MINNESOTA

COURT OF APPEALS

TRANSCRIPT OF JUDGMENT

I, Christa Rutherford-Block, Clerk of the

Appellate Courts, do hereby certify that the foregoing is

a full and true copy of the Entry of Judgment in the

cause therein entitled, as appears from the original

record in my office; that I have carefully compared the

within copy with said original and that the same is a

correct transcript therefrom.

Witness my signature at the Minnesota Judicial Center,

In the City of St. Paul

Attest:

By:

May 25, 2023

Dated

Christa Rutherford-Block

Clerk of the Appellate Courts

/s/

Assistant Clerk

APPENDIX B

STATE OF MINNESOTA

IN COURT OF APPEALS

A22-0796

Minnesota Automobile Dealers Association,

Petitioner,

vs.

Minnesota Pollution Control Agency,

Respondent.

Filed January 30, 2023

Rule declared valid

Segal, Chief Judge

Minnesota Pollution Control Agency

File No. OAH 71-9003-36416

Douglas P. Seaton, James V. F. Dickey, Upper

Midwest Law Center, Golden Valley, Minnesota (for

petitioner)

Keith Ellison, Attorney General, Peter N. Surdo,

Special Assistant Attorney General, Joseph T.

Heegaard, Assistant Attorney General, St. Paul,

Minnesota (for respondent)

Melissa L. Lorentz, Joy R. Anderson, Jay E. Eidsness,

Minnesota Center for Environmental Advocacy, St.

Paul, Minnesota (for amici curiae Fresh Energy,

Minnesota Center for Environmental Advocacy,

MN350, Clean Up the River Environment, Health

Professionals for a Healthy Climate, and Sierra Club

North Star Chapter)

Considered and decided by Segal, Chief Judge; Reyes,

Judge; and Cleary, Judge.*

SYLLABUS

The Minnesota Pollution Control Agency

(MPCA) did not improperly delegate its rulemaking

authority to another state when it incorporated by

reference California’s motor-vehicle emission

standards into Minn. R. 7023.0150-.0300 (2021).

OPINION

SEGAL, Chief Judge

This declaratory judgment action presents a

challenge by petitioner Minnesota Automobile Dealers

Association (MADA) to the validity of rules adopted by

respondent MPCA that require automobile

manufacturers to deliver for sale in Minnesota (1) only

vehicles that meet specified air-pollutant emission

standards and (2) a certain percentage of vehicles with

ultra-low or zero tailpipe emissions. See Minn. R.

7023.0150-.0300 (the Clean Car Rule). The Clean Car

Retired judge of the Minnesota Court of Appeals, serving by

appointment pursuant to Minn. Const. art. VI, § 10.

Rule was adopted under the authority of Minn. Stat.

§116.07 (2022) and pursuant to the federal Clean Air

Act (the CAA), codified at 42 U.S.C. §§ 7401-7671q

(2018).

MADA argues that the Clean Car Rule is invalid

because it violates article I of the Minnesota

Constitution by improperly delegating the MPCA’s

rulemaking authority to California or, in the

alternative, that Minn. Stat. § 116.07 violates article

III of the Minnesota Constitution by improperly

delegating legislative authority to the MPCA without

adequate guidance. MADA also argues that the Clean

Car Rule is invalid because the MPCA lacks statutory

authority to establish a uniform statewide standard

and that Minnesota does not qualify for the provision

in the CAA that allows states to adopt California

motor-vehicle emission standards set out in 42 U.S.C.

§ 7507 (the opt-in provision).

We conclude that the incorporation by reference

of California’s motor-vehicle emission standards into

the Clean Car Rule did not violate the nondelegation

doctrine. The fact that the Clean Car Rule incorporates

specific California regulations “as amended” does not

alter this conclusion. The MPCA has represented, and

we interpret, the “as amended” clause in the Clean Car

Rule as incorporating only “minor housekeeping

updates” and that, before a “major update” could be

incorporated, the MPCA would need to initiate

rulemaking. We also conclude that the MPCA acted

within its statutory authority in adopting a uniform

statewide motor-vehicle emission standard and that

Minnesota is an eligible state to adopt the California

standards. We thus determine that the Clean Car Rule

is valid.

FACTS

The CAA vests exclusive authority in the federal

government, specifically the Administrator of the

Environmental Protection Agency (EPA), to establish

“standard[s] relating to the control of emissions from

new motor vehicles.” 42 U.S.C. § 7543(a); see 42 U.S.C.

§ 7521 (setting forth administrator’s authority); Am.

Auto. Mfrs. Ass’n v. Cahill, 152 F.3d 196, 198 (2d Cir.

1998) (noting that states are generally preempted from

establishing emission standards for new motor

vehicles). The CAA, however, contains a waiver that

allows California to impose its own, generally more

stringent, emission standards on new motor vehicles

sold in that state.1 See 42 U.S.C. § 7543(b). The CAA

provides that new motor vehicles that comply with

California's standard under the waiver shall be treated

as compliant with the federal emission standards. Id.

California began regulating emissions from motor vehicles in

the 1950s because of areas of severe air pollution in that state;

this was well before the enactment of amendments to the CAA

requiring national emission standards for new motor vehicles. See

Motor & Equip. Mfrs. Ass’n, Inc. v. E.P.A., 627 F.2d 1095, 1109

n.26 (D.C. Cir. 1979) (referring to early California emission

provisions); Motor Vehicle Air Pollution Control Act of 1965, Pub.

L. No. 89-272, § 202(a), 79 Stat. 992-93 (directing establishment

of emission standards); Act effective Sept. 11, 1957, ch. 239, 1957

Cal. Stat. 895-96 (granting air pollution control board power to

regulate motor-vehicle equipment to reduce “air contaminants”).

(b)(3). And, as relevant here, the CAA allows states

with approved nonattainment "plan provisions" to

choose to be governed by either the national emission

standards set by the Administrator of the EPA or the

California standards. 42 U.S.C. § 7507. If a state elects

to adopt the California standards,2 that state’s

standards must be “identical to the California

standards for which a waiver has been granted [by the

EPA] for such model year.” Id.

The MPCA is tasked by statute with, among

other things, adopting standards “relevant to the

prevention, abatement, or control of air pollution,”

including air-qualitystandards relating to the

“emission of air contaminants from motor vehicles.”

A nonattainment area is defined under the CAA as “any area

that does not meet (or that contributes to ambient air quality in

a nearby area that does not meet) the national primary or

secondary ambient air quality standard for [a] pollutant.” 42

U.S.C. § 7407(d); see also42 U.S.C. § 7501(2). The state in which

the nonattainment area is located is responsible for submitting

“[nonattainment] plan provisions [that] provide for the

implementation of all reasonably available control measures as

expeditiously as practicable. . . and shall provide for attainment

of the national primary ambient air quality standards” within the

Administrator’s designated attainment date. 42 U.S.C. § 7502(a),

(c). Part D of the CAA, 42 U.S.C. §§ 7501-7515, provides that

when a designated area has attained the “national primary

ambient air quality standard for [an] air pollutant” the state must

submit a maintenance plan “for such air pollutant in the area

concerned for at least 10 years after the redesignation” from non

attainment to attainment. 42 U.S.C. § 7505a(a). Both

implementation and maintenance plans are subject to approval by

the EPA administrator. 42 U.S.C. § 7410(k).

Minn. Stat.§ 116.07, subds. 2(a), 4. In 2019, the MPCA

initiated rulemaking proceedings to adopt the more

stringent California standards for vehicle

emissionspursuant to the CAA waiverprovision,42

U.S.C.§ 7543(b). TheMPCA explainedin its statement

of need and reasonableness for the Clean Car Rule(the

SONAR)that the change was needed because emission

standards for new motor vehicles. The EPA adopted

the weakened standards in 2020. 85 Fed. Reg. 24174

(Apr. 30, 2020). the federal government had provided

notice that it would be weakening its air-pollutant

emission standards for new motor vehicles.3 The EPA

adopted the weakened standardsin2020. 85 Fed. Reg.

24174 (Apr. 30, 2020).

The MPCA explained in the SONAR that,

historically, the EPA “required increasingly stringent

emission reductions” for vehicles but that the EPA’s

new rule “roll[ed] back the emission standards.”The

MPCA stated that “[o]ne of the purposes of the

[MPCA’s] proposed [Clean Car Rule was] to maintain

the [former, more stringent EPA] emissions standard

in Minnesota.”The MPCA also pointed out that

Minnesota had failed to meet its statutory goal for the

reduction of greenhouse gases for 2015 and was“not on

A statement of need and reasonableness is a document that

agencies are required to provide to the public as part of the

rulemaking process. Minn. Stat. §§ 14.131, .23 (2022); see Minn.

R. 1400.2070 (2021)(setting out additional guidance for

statements of need and reasonableness).

track to achieve the 2025 or 2050 goals.”4 The MPCA

indicated that“[t]ransportation is the largest source of

[greenhouse gas] emissions in Minnesota,” and

passenger cars, light-duty trucks, and medium-duty

vehicles “are the largest source of [such] emissions

within that sector.” Finally, the MPCA stated that “the

proposed rule is a necessary step toward achieving

substantive emission reductions in Minnesota’s

transportation sector.”

Following the conclusion of the formal

rulemaking process, the MPCA adopted the Clean Car

Rule in July 2021. See 46 Minn. Reg. 66 (July 26,

2021). It applies to new motor vehicles beginning with

the 2025 model year.5 46 Minn. Reg. 755 (Dec. 27,

2021). To ensure that Minnesota’s standards are

identical to the California standards as required by the

CAA, the Clean Car Rule incorporates by reference the

applicable sections of the California Code of

Regulations, including both the air-pollutant emission

standards (the low-emission vehicle (LEV) standards)

and requirements for zero-emission vehicles (ZEVs).

See Minn. R. 7023.0150.

The statutory goals are set forth in Minn. Stat. § 216H.02, subd.

1 (2022).

The CAA requires adoption of the standards “at least two years

before the commencement of such model year.” 42 U.S.C. § 7507.

The LEV standards, set out in Minn. R.

7023.0250, provide that new motor vehicles sold in

Minnesota, with certain exceptions, must be “certified

to the [California LEV air-pollutant emission

standards].” Minn. R. 7023.0250, subp. 1. The ZEV

standards, set out in Minn. R. 7023.0300, require that

a “manufacturer’s sales fleet of passenger cars and

light-duty trucks . . . delivered for sale or lease in the

state must contain at least the same applicable

percentage of ZEVs required under California Code of

Regulations, title 13, section 1962.2.” Minn. R.

7023.0300, subp. 1.

The Clean Car Rule, however, did not just

incorporate specific sections of the existing California

regulations. The Clean Car Rule incorporates by

reference those sections of the California regulations

as they may be amended.6 See Minn. R. 7023.0150,

subp. 2. It also notes that the California “regulations

are not subject to frequent change.” Id. In the SONAR,

That subpart of the Clean Car Rule provides:

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, are incorporated by reference. The

regulations are not subject to frequent change and

are available online . . . .

Minn. R. 7023.0150, subp. 2 (emphasis added).

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the MPCA explained that incorporating identified

California regulations “‘as amended’ improves

administrative efficiency by reducing the need for

rulemaking to maintain consistency with the

California rules.” The MPCA further observed in the

SONAR that, “[h]istorically, California has made

minor housekeeping updates to its rules every few

years,” but that when “California has conducted a

major update . . . , such as making them more

stringent for future model years, California has done

so in new rule parts.” The SONAR stated that,

consequently, only “minor housekeeping updates”

would be automatically adopted through the “as

amended” clause in Minn. R. 7023.0150, subp. 2, not

“major updates.”

In June 2022, MADA petitioned this court for a

declaratory judgment under Minn. Stat. § 14.44 (2022),

arguing that the challenged rules are invalid based on

MADA’s claims that: (1) the Clean Car Rule

constitutes an unconstitutional delegation of

rulemaking or, in the alternative, results from an

unconstitutional delegation of legislative authority; (2)

Minn. Stat. § 116.07 does not allow the MPCA to adopt

emission standards on a statewide basis; and (3)

Minnesota does not meet the eligibility requirements

under the CAA to adopt California’s motor-vehicle

emission standards.

In August 2022, the MPCA moved to dismiss

MADA’s action, arguing that MADA lacked standing

and failed to state a claim. We denied the motion and

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now reach the merits.7 Minn. Auto. Dealers Ass’n v.

Minn. Pollution Control Agency, No. A22-0796 (Minn.

App. Sept. 20, 2022) (order).

ISSUES

Does the Clean Car Rule involve an

unconstitutional delegation of rulemaking or

lawmaking authority because it incorporates by

reference California’s motor-vehicle emission

standards “as amended”?

II.

Does Minn. Stat. § 116.07 allow the MPCA to

adopt rules establishing a uniform set of motorvehicle emission standards with statewide

application?

III.

Does Minnesota qualify under the CAA to adopt

California’s motor-vehicle emission standards?

ANALYSIS

The MPCA continues to assert that MADA lacks standing

because the alleged harm is too speculative. The issue of standing

was decided when a special term panel of this court denied the

MPCA’s motion to dismiss on that ground. The MPCA’s continued

assertion of this issue is akin to a motion for reconsideration.

Motions for reconsideration are not allowed under the civil

appellate rules. See State ex rel. Leino v. Roy, 910 N.W.2d 477, 481

(Minn. App. 2018) (recognizing that Minn. R. Civ. App. P. 140.01

has been applied by this court “to foreclose reconsideration of an

issue that a special term panel of this court decided prior to

considering the merits of an appeal”). We thus decline to revisit

this issue.

12a

MADA’s challenge is in the form of a preenforcement challenge to the validity of the Clean Car

Rule. The scope of review on such a challenge is

circumscribed by Minnesota’s Administrative

Procedure Act, Minn. Stat. §§ 14.001-.69 (2022). See

Coal. of Greater Minn. Cities v. Minn. Pollution

Control Agency, 765 N.W.2d 159, 164 (Minn. App.

2009) (noting that “[t]he standard of review is more

restricted than in an appeal from a contested

enforcement proceeding in which the validity of the

rule as applied to a particular party is adjudicated”),

rev. denied (Minn. Aug. 11, 2009). As set out in the

administrative procedure act, appellate courts are

limited in pre-enforcement challenges to determining

whether the rule “violates constitutional provisions or

exceeds the statutory authority of the agency or was

adopted without compliance with statutory rulemaking

procedures.” Minn. Stat. § 14.45; see also Save Mille

Lacs Sportsfishing, Inc. v. Minn. Dep’t of Nat. Res., 859

N.W.2d 845, 850 (Minn. App. 2015). MADA does not

challenge the statutory rulemaking process; our review

is thus limited to determining the constitutionality of

the rule and whether the MPCA exceeded its statutory

authority.

The MPCA acted within its authority when

it incorporated California’s motor-vehicle

emission standards into the Clean Car

Rule, and the “as amended” clause in the

rule does not violate the nondelegation

doctrine.

MADA argues that the Clean Car Rule violates

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article I of the Minnesota Constitution by improperly

delegating to a California agency the rulemaking

authority of the MPCA. Article I provides that the

“[g]overnment is instituted for the security, benefit

and protection of the people” of Minnesota. Minn.

Const. art. I, § 1. MADA further argues that, if we

conclude that the MPCA did not improperly delegate

its rulemaking authority, then the legislature violated

the separation of powers requirements of article III of

the Minnesota Constitution by improperly delegating

its lawmaking authority to an executive agency

without adequate guidance. See Minn. Const. art. III,

§ 1 (dividing the powers of government into three

branches: legislative, executive, and judicial).

In our analysis of these issues, we first provide

a brief overview of the nondelegation doctrine and

address the scope of the MPCA’s authority to

incorporate California regulations by reference. We

then address MADA’s challenge to the “as amended”

clause of the Clean Car Rule. This requires us to

interpret the scope of the “as amended” clause. In the

final step of the analysis, we assess whether the Clean

Car Rule as interpreted violates the nondelegation

doctrine.

Under Minnesota precedent, the legislature is

accorded significant latitude to delegate regulatory

authority to state administrative agencies. The

Minnesota Supreme Court has instructed that the

legislature’s power to delegate is not violated so long

as “the law furnishes a reasonably clear policy or

standard of action which controls and guides the

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administrative officers in ascertaining the operative

facts to which the law applies.” Lee v. Delmont, 36

N.W.2d 530, 538 (Minn. 1949); see Vicker v. Starkey,

122 N.W.2d 169, 173 (Minn. 1963) (stating that “[i]t is

well settled that the legislature has the power to

delegate to an administrative agency the right to

promulgate such reasonable rules and regulations as

may be necessary to accomplish the purposes for which

the agency is created”). The court has also repeatedly

confirmed that, while the legislature must provide a

“reasonably clear policy” to guide the administrative

agencies, that policy “may be laid down in very broad

and general terms.” Lee, 36 N.W.2d at 538-39; see

Minn. Energy & Econ. Dev. Auth. v. Printy, 351

N.W.2d 319, 350 (Minn. 1984) (noting that “Minnesota

decisions since Lee have consistently followed the

principle that adequate statutory standards may be

laid down in broad and general terms”).

Applying these principles to this case, the

MPCA’s regulatory authority over motor-vehicle

emissions is contained in chapter 116 of the Minnesota

Statutes. Minn. Stat. §§ 116.01-.994 (2022). That

chapter creates the MPCA and grants the agency

broad authority to prevent pollution and manage

Minnesota’s air quality, in addition to protecting water

and land resources. See Minn. Stat. § 116.01 (stating

policy goal of achieving a reasonable degree of air

purity). The MPCA’s authority to adopt motor-vehicle

emission standards is set out in section 116.07. It

authorizes the MPCA to adopt air-quality standards,

“including maximum allowable standards of emission

of air contaminants from motor vehicles.” Minn. Stat.

15a

§ 116.07, subd. 2(a). The section also authorizes the

MPCA to adopt rules and standards to prevent, abate,

or control air pollution. Id., subds. 2(a), 4.

In addition, Congress effectively mandated in

the CAA that states either adopt the EPA’s national

motor-vehicle emission standards or the California

standards. See 42 U.S.C. § 7507. The MPCA elected to

adopt the California standards in the Clean Car Rule.

Instead of repeating the California standards word for

word in the Clean Car Rule, however, the MPCA

incorporated specific regulations by reference. The

MPCA’s authority to incorporate provisions by

reference is expressly sanctioned in section 14.07 of

the Minnesota Administrative Procedure Act, which

allows agencies to incorporate provisions by reference

into agency rules as long as the incorporated

provisions are “conveniently available to the public.”

Minn. Stat. § 14.07, subd. 4(a). The MPCA was thus

well within its authority when it incorporated by

reference the existing California regulations into the

Clean Car Rule.

We turn next to the question of whether the

MPCA acted within its proper authority when it

incorporated by reference not just the existing

California regulations, but those regulations “as

amended.”8 Minn. R. 7023.0150, subp. 2. MADA argues

The MPCA argues, as a threshold issue, that MADA’s challenge

to the “as amended” clause in the Clean Car Rule is not yet ripe

because no amendments have yet been made by California to its

motor-vehicle emission standards. At oral argument, however, the

16a

that the “as amended” clause opens up the rule to

automatic adoption of all future California

amendments no matter how substantial or draconian

those amendments might be. MADA maintains that

the clause thus results in an unconstitutional

delegation of either rulemaking or lawmaking

authority.

The MPCA suggests that the “as amended”

clause has a narrower scope. In the SONAR, the

MPCA acknowledged that the “as amended” clause

“means that any future amendments to the

incorporated California regulations automatically

become part of Minnesota rules.” The MPCA

explained, however, that, “[h]istorically, California has

made minor housekeeping updates to its rules every

few years,” but when “California has conducted a

major update to the rules, such as making them more

stringent for future model years, California has done

so in new rule parts.” The MPCA stated that,

consequently, such “major updates would not be

adopted automatically into Minnesota’s rules.” The

MPCA acknowledged that California has already indicated an

intent to amend its standards. Thus, even assuming that the issue

may not yet be ripe, we choose to address the merits of the issue

for reasons of judicial economy. See Midway Nat’l Bank v. Est. of

Bollmeier, 504 N.W.2d 59, 64 (Minn. App. 1993) (addressing issue

to serve interest of judicial economy). In this regard, we also note

that the administrative procedure act allows pre-enforcement

challenges to the validity of a rule “when it appears that the rule,

or its threatened application, interferes with or impairs, or

threatens to interfere with or impair the legal rights or privileges

of the petitioner.” Minn. Stat. § 14.44.

17a

MPCA further represented that the “decision to

incorporate [a major] update[] or revert back to the

backstop federal standards would still need to be

considered on a case-by-case basis through Minnesota

state rulemaking.”

MADA and the MPCA thus offer two different

interpretations of the “as amended” clause. MADA

accords the phrase a broad interpretation that future

amendments, no matter how dramatic or far-reaching

in scope, would automatically be incorporated into the

Clean Car Rule. The MPCA maintains that the “as

amended” clause has a more limited and practical

scope, allowing the Clean Car Rule to remain identical

to the California standards, as the CAA requires,

without instituting laborious rulemaking procedures

for “minor housekeeping updates” to existing

regulations.9 Because we agree that the “as amended”

clause could result in an improper delegation if read

too broadly, we must determine which interpretation

is correct.

“When interpreting statutes and regulations, we

apply our familiar rules.” In re Reissuance of an

NPDES/SDS Permit to U.S. Steel Corp., 954 N.W.2d

572, 576 (Minn. 2021). Our first task under those rules

is to determine if there is an ambiguity. State v.

In this regard, the MPCA notes in its brief that there are

numerous references in state regulations to external standards

that are subject to change, such as the fire code that incorporates

portions of the international fire code, “as amended,” Minn. R.

7511.1031.2.1, .1103.4.1, .6101.1 (2021).

18a

Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). A

provision is ambiguous if it is subject to more than one

reasonable interpretation. Id. Because we are

presented here with two reasonable interpretations of

the scope of the “as amended” clause, we conclude that

the phrase is ambiguous.

When faced with an ambiguity in the

interpretation of a regulation, we “may resort to the

canons of statutory construction” and “will defer to the

agency’s interpretation and will generally uphold that

interpretation if it is reasonable.” Reissuance of an

NPDES/SDS Permit, 954 N.W.2d at 576 (quotation

omitted). Here, the MPCA represented in the SONAR

that, historically, California has only made “minor

housekeeping updates” when amending existing “rule

parts” and that any “major updates” are made in “new

rule parts”—i.e., in differently numbered regulations

than the regulations incorporated by reference in the

Clean Car Rule—and thus would not be subject to

automatic adoption by reason of the “as amended”

clause. The MPCA represented in the SONAR that any

such “major updates” would “need to be considered on

a case-by-case basis through Minnesota state

rulemaking.”

Given the framework of this case, we defer to

the MPCA’s description of the scope of the “as

amended” clause as set out in the SONAR. We thus

interpret the “as amended” clause more narrowly than

MADA suggests. Under our interpretation, regardless

of whether California were to break with its history

and adopt a “major update” in the existing sections of

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their regulations instead of a new rule part, a “major

update” would not be automatically incorporated into

the Clean Car Rule. In the event of a “major update,”

the MPCA would be required to initiate a rulemaking

process to decide whether to adopt the new California

standards or “revert back to the backstop federal

standards” under the CAA.10

Having interpreted the “as amended” clause, we

now turn to the question of whether the “as amended”

clause results in an improper delegation of the MPCA’s

rulemaking authority. In this step of our analysis, we

are guided by the Minnesota Supreme Court’s decision

in Printy, in which the court upheld an “as amended”

clause under an analogous circumstance. Printy, 351

N.W.2d at 352. Printy involved a Minnesota statute

that created a small business loan program. Id. at 351.

In defining which businesses would qualify as “small

businesses” eligible to apply for the loans, the statute

“incorporate[d] by reference the definition of small

business contained in regulations of the United States

small business administration, ‘as amended from time

to time.’” Id. The supreme court determined that this

was not an improper delegation of legislative power to

the federal government because “[t]he ultimate

We refrain in this pre-enforcement challenge from delineating

the specific parameters of what would constitute a “major update”

that would require the MPCA to engage in rulemaking prior to

adoption. See Save Mille Lacs Sportsfishing, Inc., 859 N.W.2d at

849 (stating that “the broad and far-reaching scrutiny of a rule or

regulation, based upon hypothetical facts, is a premature exercise

of the judiciary” (quotation omitted)).

20a

determination as to whether to grant a . . . loan rests

with [the state agency] and not with the federal [small

business administration].” Id. at 352. The court

reasoned that “[t]he definition of eligible small

business merely specifies what ‘size standards’ a

business must meet in order to be eligible for a loan”

and that, “[i]n referencing federal regulations, the

Legislature has adopted a generally accepted size

standard to broadly define the category of eligible loan

applicants.” Id.

The court upheld the “as amended” clause in

Printy based in part on its conclusion that the clause

was justified by the nature of the government

program, noting that “there [were] good reasons to

coordinate federal and state eligibility requirements.”

Id. Applying that logic here, there are even stronger

reasons to use an “as amended” clause in this case

than in Printy because the opt-in provision of the CAA

requires Minnesota not just to coordinate, but to

maintain identical motor-vehicle emission standards.

42 U.S.C. § 7507.

MADA cites Wallace v. Commissioner of

Taxation, 184 N.W.2d 588 (Minn. 1971), in support of

its argument. In Wallace, the supreme court held that

the state legislature could not delegate its legislative

powers “to any outside agency, including the Congress

of the United States.” 184 N.W.2d at 589. MADA

contends that, if the state legislature lacks authority

to delegate its lawmaking powers to the United States

Congress, then the MPCA surely lacks authority to

incorporate by reference future California

21a

amendments.

But the supreme court distinguished the

Wallace decision in Printy and at least one other case,

noting that Wallace was based in part on the express

constitutional provision that the power to tax “shall

never be surrendered, suspended or contracted away.”

Printy, 351 N.W.2d at 351 (quoting Minn. Const. art.

X, § 1); see Minn. Recipients All. v. Noot, 313 N.W.2d

584, 586 (Minn. 1981). The court also distinguished

Wallace on the grounds that “the Wallace case itself

notes an exception to its rule for statutes which are

auxiliary in nature and seek to achieve uniformity in

implementation of national programs and policies.”

Printy, 351 N.W.2d at 352 (quotation omitted); see

Minn. Recipients All., 313 N.W.2d at 586-87. The

Wallace holding is thus more limited than MADA

suggests and is not inconsistent with our holding in

this case. We therefore conclude that the MPCA did

not improperly delegate its rulemaking authority in

adopting the Clean Car Rule.

Finally, we turn to MADA’s alternative

argument that the legislature violated the

nondelegation doctrine by failing to provide adequate

guidance to the MPCA. In making this argument,

MADA identifies no specific gaps in the applicable

sections of chapter 116. Instead, MADA appears to

simply argue that chapter 116 must be deficient if the

“as amended” clause of the Clean Car Rule is

determined to be valid. But as the MPCA has

represented and we have concluded, the “as amended”

clause does not allow the automatic incorporation of

22a

“major updates” into the Clean Car Rule. And, as we

note above, legislative guidance to administrative

agencies “may be laid down in very broad and general

terms,” a standard that is satisfied by the applicable

sections of chapter 116. Lee, 36 N.W.2d at 538-39. We

thus reject MADA’s alternative argument and discern

no improper delegation by the legislature to the

MPCA.

II.

Section 116.07 does not prohibit the MPCA

from adopting uniform statewide motorvehicle emission standards.

MADA next argues that Minn. Stat. § 116.07

does not allow the MPCA to adopt motor-vehicle

emission standards having statewide application. That

section provides that the MPCA “shall . . . adopt

standards of air quality, including maximum allowable

standards of emission of air contaminants from motor

vehicles, recognizing that due to variable factors, no

single standard of purity of air is applicable to all

areas of the state.” Minn. Stat. § 116.07, subd. 2

(emphasis added). MADA argues that the Clean Car

Rule violated this provision by establishing a uniform

statewide standard.

Our goal in interpreting a statute is to give

effect to the legislature’s intent. Christianson v. Henke,

831 N.W.2d 532, 536 (Minn. 2013). As we note above,

the first task in statutory interpretation is to

determine whether a statute’s language is ambiguous.

Id. MADA makes no argument here that the italicized

phrase in the above quoted language in Minn. Stat. §

23a

116.07, subd. 2, is ambiguous and we agree. We thus

apply the plain language of the statute. Id.

Here, the plain language of section 116.07 as a

whole leads us to the conclusion that the MPCA acted

consistently with the statute in developing a statewide

standard. In fact, subdivision 4 of section 116.07

specifically allows the MPCA to adopt air-quality

standards having statewide effect. That subdivision

provides that rules or standards adopted by the MPCA

“may be of general application throughout the state”

and that such

rules or standards may relate to sources

or emissions of air contamination or air

pollution, to the quality or composition of

such emissions, or to the quality of or

composition of the ambient air or outdoor

atmosphere or to any other matter

relevant to the prevention, abatement, or

control of air pollution.

Minn. Stat. § 116.07, subd. 4(a) (emphasis added). In

furtherance of this section of the statute, the MPCA

has adopted numerous statewide air-quality standards

specifying maximum allowable quantities for air

contaminants. See, e.g., Minn. R. 7009.0080 (2021).

In addition, subdivision 2 only requires the

MPCA to “recogniz[e]” that “no single standard of

purity of air” applies to “all areas of the state.” Minn.

Stat. § 116.07, subd. 2 (emphasis added). It does not

prohibit a statewide motor-vehicle emission standard.

24a

The remaining language in section 116.07, subdivision

2, uses similar wording, requiring the MPCA to

give due recognition to the fact that the

quantity or characteristics of air

contaminants . . . , which may cause air

pollution in one area of the state, may

cause less or not cause any air pollution

in another area of the state, and [the

MPCA] shall take into consideration in

this connection such factors, . . . that a

standard of air quality which may be

proper as to an essentially residential

area of the state, may not be proper as to

a highly developed industrial area of the

state.

(Emphasis added.) Thus, the plain meaning of the

provision is that the MPCA is required to “recognize”

and “consider” regional variations in air quality, but

that the MPCA is nonetheless permitted to establish

statewide standards.

Finally, this interpretation also serves logic

because the Clean Car Rule regulates air emissions for

new vehicles to be sold in the state and motor vehicles

are, at the risk of overstating the obvious, mobile.

III.

Minnesota has an approved plan provision

under Part D of the CAA and is thus

eligible under the opt-in provision of the

CAA to adopt California’s motor-vehicle

emission standards.

25a

MADA’s final argument is that Minnesota must

follow the federal emission standards because it does

not qualify under the opt-in provision of the CAA, 42

U.S.C. § 7507, to adopt California’s standards.

The opt-in provision allows states to adopt

California’s standards if certain requirements are met.

See 42 U.S.C. §§ 7507, 7543(a)-(b). Among the

requirements, a state must have “plan provisions”

approved by the EPA “under this part.” 42 U.S.C. §

7507. The parties do not dispute that the phrase “this

part” in the opt-in provision refers to Part D of the

CAA. 42 U.S.C. §§ 7501-7515.

Part D of the CAA concerns plan requirements

for “nonattainment areas,” which means, in reference

to air pollution, “an area which is designated

‘nonattainment’ with respect to that pollutant within

the meaning of section 7407(d) of this title.” 42 U.S.C.

§ 7501(2). Section 7407(d), in turn, concerns the

designation of areas as “attainment,” “nonattainment,”

or “unclassifiable” depending on their compliance with

the relevant national air-quality standards. 42 U.S.C.

§ 7407(d). Areas designated as nonattainment are

those that exceed the standard or that “contribute[] to

ambient air quality in a nearby area” that exceeds the

standard. Id. (d)(1)(A)(i).

MADA concedes that there is a designated

nonattainment area in Eagan for lead emissions and

that Minnesota has a nonattainment plan provision

approved by the EPA to address those emissions.

MADA contends, however, that the plan does not

26a

satisfy the section 7507 requirement because lead

emissions were brought into attainment in Eagan in

2015.11 MADA maintains that the only reason that a

plan provision is still in place is because the MPCA

“has failed to apply for redesignation.” MADA argues

that “[t]he MPCA cannot fail to act and then claim

refuge in the situation it has manufactured by

omission.” This argument by MADA, however, is

beyond the limited scope of review under section 14.45

of the Minnesota Administrative Procedure Act. See

Save Mille Lacs Sportsfishing, Inc., 859 N.W.2d at 850.

Because Minnesota has a nonattainment plan

provision under Part D of the CAA, MADA’s argument

is unavailing.12

MADA also argues, without citation, that lead does not have

a national air-quality standard “associated with it,” which,

according to MADA, means the lead nonattainment plan has

“even less relevance to regulating air quality.” It appears that

MADA is mistaken in this regard. See 81 Fed. Reg. 71906 (Oct. 18,

2016) (retaining existing national ambient air-quality standards

for lead). And, regardless, it would not alter the fact that

Minnesota has “plan provisions” approved under “Part D” and

thus satisfies that requirement to be eligible to adopt the

California standards under section 7507 of the CAA.

The MPCA notes that, in addition to the approved plan

provision for the Eagan nonattainment area, Minnesota has

several approved maintenance plan provisions aside from the

Eagan nonattainment area. See 40 C.F.R. § 52.1237 (2020)

(setting out approval of Minnesota’s maintenance plans). The

MPCA maintains that these approved maintenance plans also

satisfy the “plan provision” requirement for eligibility to adopt the

California standards under 42 U.S.C. § 7507. The MPCA argues

that this is because maintenance plans are also included in Part

D of the CAA, 42. U.S.C. 7505a. We need not address this

27a

DECISION

The inclusion of the “as amended” clause in

Minn. R. 7023.0150, subp. 2, does not violate the

nondelegation doctrine. We also hold that the MPCA

has the statutory authority to adopt a statewide

motor-vehicle emission rule and Minnesota is an

eligible state under the CAA to adopt California’s

motor-vehicle emission standards. We therefore

conclude that the Clean Car Rule is valid.

Rule declared valid.

argument, however, because we conclude that the Eagan

nonattainment area plan provision satisfies the CAA’s eligibility

requirement.

28a

APPENDIX C

STATE OF MINNESOTA

IN SUPREME COURT

A22-0796

[DATE STAMP]

FILED

May 16, 2023

Office of

Appellate Courts

Minnesota Automobile Dealers Association,

Petitioner,

vs.

Minnesota Pollution Control Agency,

Respondent.

ORDER

Based upon

proceedings herein,

all

the

files,

records,

and

IT IS HEREBY ORDERED that the petition of

Minnesota Automobile Dealers Association for further

review is denied.

IT IS FURTHER ORDERED that the request of

respondent Minnesota Pollution Control Agency for

29a

conditional cross-review is denied.

IT IS FURTHER ORDERED that the motion of

the National Federation of Independent Business

Small Business Legal Center, Inc. to file and serve a

brief as amicus curiae in the above-entitled matter is

denied.

Dated: May 16, 2023

BY THE COURT:

/s/

Lorie S. Gildea

Chief Justice

30a

APPENDIX D

STATE OF MINNESOTA

IN COURT OF APPEALS

Minnesota Automobile Dealers Association,

Petitioner,

vs.

Minnesota Pollution Control Agency,

Respondent.

PETITION FOR DECLARATORY

JUDGMENT

APPELLATE COURT CASE NUMBER:

AGENCY OR BODY NUMBER:

OAH 71-9003-36416

TO: The Court of Appeals of the State of Minnesota:

The above-named petitioner hereby petitions the

Court of Appeals pursuant to Minn. Stat. § 14.44 for a

declaratory judgment determining the validity of

Minn. R. 7023.0150, .0200, .0250, and .0300, adopted

by Respondent Minnesota Pollution Control Agency on

July 26, 2021 (46 S.R. 66), upon the grounds that the

rule exceeds the statutory authority of the agency

under Minn. Stat. § 116.07, is not authorized under

the federal Clean Air Act, and additionally based on

31a

the following allegations:

The Parties

1. Petitioner Minnesota Automobile Dealers

Association (“MADA”) is a nonprofit trade association

representing 348 franchised new car and truck dealers

located across Minnesota (98% of the market). Its

members support taking action to keep Minnesota’s air

clean and help mitigate the impacts of climate change.

However, MADA 2 and its members opposed the

adoption of the Rules, which are California’s

regulations for LEV and ZEV.

2. Respondent Minnesota Pollution Control

Agency (“MPCA”) is a statutory agency created via

Minn. Stat. § 116.02 and is responsible for the

adoption of the Rules at issue.

Adoption of the Rules

3. On December 21, 2020, the MPCA published

in the State Register notice of its intent to adopt rules

related to “vehicle greenhouse gas emissions

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

standards adopted based on its waiver from the federal

Clean Air Act’s uniformity requirement for vehicle

tailpipe emissions. 45 S.R. 663-670.

4. After notice, comments, a hearing, and a

report of the Administrative Law Judge, the Rules

were approved and adopted by publication in the State

32a

Requirements of the Rules

5. 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).

6. Minn. R. 7023.0250, Subp. 1 expressly

requires all new motor vehicles “produced by a motor

vehicle manufacturer and delivered for sale or lease in

the state” to 3 be certified to the California standards

incorporated in Minn. R. 7023.0150, Subp. 2. This

includes all “passenger cars, light-duty trucks,

medium-duty passenger vehicles, and medium-duty

vehicles; new light- or medium-duty motor vehicle

engines; and motor vehicles with a new motor vehicle

engine.” Minn. R. 7023.0250, Subp. 1.

7. Passenger cars are vehicles designed mostly

to transport 12 people or fewer. Light-duty trucks are

vehicles with a gross vehicle weight of under 8,500

pounds. Medium-duty vehicles are vehicles with a

gross vehicle weight of between 8,501 and 14,000

pounds. Medium-duty passenger vehicles are mediumduty vehicles with a gross vehicle weight of less than

10,000 pounds and designed mostly to transport

people.

33a

8. Minn. R. 7023.0250, Subp. 3 expressly forbids

a manufacturer from delivering for sale or lease to

Minnesota dealers a fleet of vehicles with average

nonmethane organic gas plus oxides of nitrogen

emission values or greenhouse gas exhaust emission

values exceeding the limitations of California Code of

Regulations, title 13, sections 1961.2 (nonmethane

organic gas) and 1961.3 and 1956.8(h)(6) (greenhouse

gases), respectively.

9. Minn. R. 7023.0300, Subp. 1 expressly

requires a manufacturer to sell a certain percentage of

ZEV to Minnesota dealers as part of its fleet for that

model year, following California Code of Regulations,

title 13, section 1962.2.

10. Beginning with Model Year 2022 and ending

with Model Year 2025, the Rules create an early-action

credit system which allows manufacturers to deliver

more ZEV to Minnesota immediately to earn credits

against future fleet averages. Minn. R. 7023.0300,

Subp. 4; MPCA, Statement of Need and

Reasonableness, p. 13, available at https://www.

pca.state.mn.us/sites/default/files/aq-rule4-10m.pdf.

11. According to the MPCA’s SONAR, the rules

are designed to mirror and follow the rules

promulgated—and amended—by the State of

California’s Air Resources Board (“CARB”). The

SONAR specifically states:

The proposed rule requires automobile

manufacturers deliver for sale in

34a

Minnesota only passenger cars, lightduty trucks, medium-duty vehicles, and

medium-duty passenger vehicles that are

certified by California as meeting the

LEV standard. SONAR p. 12.

Manufacturers also need to meet average

emission requirements for the entire fleet

of vehicles they deliver for sale in

Minnesota. There are separate fleetwide

emission standards for passenger cars,

light-duty trucks, medium-duty vehicles,

and medium-duty passenger vehicles.

SONAR p. 12.

The MPCA is proposing to adopt the LEV

and ZEV standards “as amended.”

Incorporation “as amended” means that

any future amendments to the

incorporated California regulations

automatically become part of Minnesota

rules. Using “as amended” improves

administrative efficiency by reducing the

need for rulemakings to maintain

consistency with the California rules.

Historically, California has made minor

housekeeping updates to its rules every

few years. However, when California has

conducted a major update to the rules,

such as making them more stringent for

future model years, California has done

so in new rule parts. Because California

uses new rule parts, these major updates

35a

would not be adopted automatically into

Minnesota’s rules. SONAR p. 41.

12. The adopted Rules do not state that “major

updates” to the California standards will not be

immediately adopted when effective. Minn. R.

7023.0150, Subp. 2.

13. In testimony before the Minnesota Senate

State Government Finance and Policy and Elections

Committee on March 1, 2022, MPCA Commissioner

Katrina Kessler, Assistant Commissioner for Climate

and Air Policy Craig McDonnell, and Climate Director

Frank Kohlasch testified related to the meaning and

effect of the Rules.1

14. Senator Mary Kiffmeyer asked the MPCA

how a newly proposed California rule would affect the

implementation of the Rule at issue here. Testimony at

19:20. Those proposed rules include proposed changes

to California’s LEV and ZEV rules, which the Rules

claim to adopt “as amended.”2

15. Commissioner Kessler initially testified that

the MPCA is aware of the new California proposal, and

that these new California emission standards would

Committee testimony (“Testimony”) available at https://www.

youtube.com/watch?v=E BR4kQhDmdA.

See https://ww2.arb.ca.gov/events/public-workshop-advancedclean-cars-ii-1 for background on these newly proposed California

LEV and ZEV rules.

36a

not automatically impact Minnesota, and that any

changes in Minnesota would have to undergo a “new

rulemaking and new process.” Testimony at 20:20.

16. Senator Jeff Howe then asked when the

MPCA would simply adopt “minor” changes to the

California rules “as amended,” versus going through a

rulemaking process for “major” changes or new

California rules. Testimony at 26:35. Commissioner

Kessler then stated that “adoption of new standards”

would require “new rulemaking” and that these would

not be “minor changes.” Id. Senator Howe followed up,

asking who determines what is major and what is

minor. Id. Climate Director Kohlasch responded that

new rules require new rulemaking, but “minor changes

to definitions” in the California rules would

automatically be incorporated into the Rules. Id.

17. Senator Howe followed up again to ask

whether a “definition change” which banned gaspowered lawn equipment would be automatically

incorporated into the Rules. Testimony at 29:00.

Climate Director Kohlasch did not answer the

question, stating that California “has never done that.”

Id. He then testified that the MPCA would “have to

look to see” whether that change would be

incorporated by reference. Id. Commissioner Kessler

confirmed that the MPCA would have the authority to

make the decision whether to adopt the California

“minor” change. Testimony at 32:00.

18. Commissioner Kessler also testified that if

California changed its rules and Minnesota failed to

37a

either adopt the changes “as amended” or go through

new rulemaking, Minnesota would “default” to federal

rules for LEV. Testimony at 32:35. Senator Kiffmeyer

noted that the federal government does not even have

a ZEV standard. Id. Assistant Commissioner

McDonnell then affirmed that in the event Minnesota

does not adopt any new ZEV standards adopted by

California, it will “lose the ZEV standard that we

currently enjoy.” Id. at 34:00.

19. The MPCA also testified as to its claim of

authority under Minn. Stat. § 116.07 related to heavyduty trucks (Testimony at 37:00) and gas-powered

lawn equipment (Testimony at 38:00). When asked,

Commissioner Kessler testified that the MPCA has the

authority to ban gas-powered heavy-duty trucks and

gas-powered law equipment because of its claimed

authority to “regulate air pollution,” without subjectmatter restriction. Id.; Testimony at 1:10:00.

Effects of the Rules

20. Under the Rules, beginning in January 2024,

with Model Year 2025, no dealer in Minnesota may

purchase a new vehicle from a manufacturer unless it

is certified according to the standards set by

California, which may change whenever California

makes a rule change.

21. In addition, dealers may only purchase

vehicles based on the fleets which manufacturers are

allowed to offer, which will contain far more ZEV and

LEV than customers in Minnesota demand.

38a

22. Because of the early-action credit

mechanism and its coercive effect, dealers are

immediately faced with vehicle fleet and engine

options limited based on the requirements of the

Rules.

23. MADA, and its members through it, are

specifically harmed by the adoption of the Rules in a

manner distinct from that of the general public,

including as follows:

The MPCA admits in its SONAR that

“[a]utomobile dealers may have some

costs associated with this proposed

rule….Dealers are not directly regulated

by this proposed rule, but they are the

interface between the manufacturers and

consumers and therefore may experience

costs and changes to business. They may

experience changes in requirements from

manufacturers to ensure only LEVcertified vehicles are offered for sale to

Minnesotans. They may also experience

limitations on trading vehicles with

dealers in other states if those dealers do

not carry LEV-certified vehicles. In

addition, they may need to invest in

infrastructure, tools, and training to

support increased EV sale.” SONAR p.

63.

The MPCA admits that the Rules will

make the price of all new vehicles sold in

39a

Minnesota more expensive by $900 to

1,200 for ZEV and $1,139 per LEV.

SONAR pp. 63, 71. This amount is

enough to deter a customer from the

purchase of a new vehicle in a hypercompetitive market where consumers

will drive hundreds of miles to get the

best deal.

Dealership members of MADA which

border Wisconsin, North Dakota, South

Dakota, and Iowa obtain customers from

surrounding states. The increase in price

of new cars imposed by the adopted Rules

will cause those dealerships to lose

customers.3 According to MADA member

dealers in Fergus Falls, customers from

North and South Dakota comprise

approximately 40% of their sales, the loss

of which would be enough to put those

dealer-members out of business.

Dealers purchase their vehicles from

manufacturers; they are not bought on

consignment. The ZEV Rule requires

E.g., MPCA, “Notice Comments 2,” pp. 66-68 (Affidavit of

Douglas Erickson, Jan. 6, 2021, ¶¶ 25-40), 75-77 (Affidavit of

Timothy Ciccarelli, Jan. 5, 2021, ¶¶ 21-31), 83-84 (Affidavit of

Steve Whitaker, Jan. 8, 2021, ¶¶ 17-36), 89-91 (Affidavit of

Chester Lockwood, Jan. 5, 2021, ¶¶ 16-34), 95-96 (Affidavit of

Gregory House, Jan. 8, 2021, ¶¶ 13-22), available at

https://www.pca.state.mn.us/sites/default/files/aq-rule4-10z2.pdf.

40a

MADA dealer-members to purchase

electric vehicles for which there is no

current demand. Dealers purchase their

inventory from manufacturers when they

deliver those vehicles for sale, and there

are significant interest costs when doing

so—tens of thousands of dollars per

month for a midsize dealer.4 When that

inventory is not sold due to lack of

demand, the dealer’s carrying costs

mount and limit the number of other new

vehicles they can take in, hurting their

marketability to consumers.

After six months of holding vehicles

which customers do not want, dealers

could face “curtailment” and be subject to

paying significant interest and principal

costs that could force them out of

business.5 A recent survey of some

Minnesota Chevrolet dealers found EV

inventory that had been sitting on their

lots in excess of 275 days. With so much

credit tied up in EVs, it will be harder for

MADA dealer-members to stock vehicles

that are in higher demand. This will

make the dealerships less profitable and

add to the weight these rules are bearing

E.g., id., p. 63 (Erickson Aff. ¶ 24).

E.g., id., pp. 74-75 (Ciccarelli Aff. ¶¶ 17-20); p. 82 (Whitaker Aff.

¶¶ 12-16); pp. 88-89 (Lockwood Aff. ¶¶ 13-15).

41a

down on them.

For some MADA members, as much as

one-third of their new car sales are

dependent on out-of-state dealer trades

to obtain vehicles for sale which meet

customers’ custom requests, which vary

substantially. Trading with other LEV

and ZEV states alone is practically

impossible because of the transportation

costs associated with moving those

vehicles. The nearest Californiacompliant state is Colorado.6

The Rules Have Been Promulgated

and Are Effective

24. 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.

25. On December 21, 2021, the United States

Department of Transportation’s National Highway

Traffic Safety Administration finalized a rule

repealing the Trump Administration’s SAFE I rule,

E.g., id., pp. 67-68 (Erickson Aff. ¶¶ 31-40), pp. 76-77 (Ciccarelli

Aff. ¶¶ 25-31), pp. 83- 84 (Whitaker Aff. ¶¶ 24-36), pp. 90-91

(Lockwood Aff. ¶¶ 25-34), pp. 95-96 (House Aff. ¶¶ 13-21).

42a

which had revoked California’s waiver from the Clean

Air Act’s tailpipe emission regulations uniformity

requirement. NHTSA, Corporate Average Fuel

Economy (CAFÉ) Preemption, Final Rule, at p. 40,

avai l ab l e a t h t t p s : / / w w w . n h t s a . g o v / s i t es /

nhtsa.gov/files/2021-12/CAFE-Preemption-Final-RuleWeb- Version-tag.pdf.

26. Thereafter, the MPCA Commissioner

published notice in the State Register required by

Minn. R. 7023.0150, Subp. 4 and the Note to the rule.

46 S.R. 755 (Dec. 27, 2021). While the notice states

that “MPCA will not enforce any part of the Standards

unless and until EPA grants a waiver,” the notice

identifies the “effective date for the Standards is

December 31, 2021.” 46 S.R. 755.

27. Thereafter, on March 14, 2022, the USEPA

rescinded 2019’s SAFE I rule as well, and fully

restored “California’s authority under the Clean Air

Act (CAA) to implement its own greenhouse gas

emission (GHG) emission standards and zero emission

vehicle (ZEV) sales mandate.” USEPA, California

State Motor Vehicle Pollution Control Standards;

Advanced Clean Car Program Reconsideration of a

Previous Withdrawal of a Waiver of Preemption;

Notice of Decision, 87 Fed. Reg. 14332 (Mar. 14, 2022),

available at https://www.govinfo.gov/content/pkg/FR2022-03-14/pdf/2022-05227.pdf.

Delegating Rulemaking Authority to

Another State Violates Minnesota’s

Sovereignty, and Federal Law Does

43a

Not Authorize Minnesota to Adopt

California’s Standards

The Rules Cannot Be Adopted “As Amended”

28. By incorporating the California standards

“as amended,” the Rules impermissibly delegate the

MPCA’s authority to a California agency, the CARB.

Minn. R. 1400.2100(F); Minn. Const. Art. I sec. 1.

29. The Minnesota Constitution, Article I,

section 1, identifies the object of Minnesota’s

government as “instituted for the security, benefit and

protection of the people, in whom all political power is

inherent, together with the right to alter, modify or

reform government whenever required by the public

good.”

30. Rule 1400.2100 prohibits approval of a rule

where power is delegated to another body. It states,

“[a] rule must be disapproved by the judge or chief

judge if the rule:…. is unconstitutional or illegal; [or]

… improperly delegates the agency's powers to another

agency, person, or group.”

31. Further, Minnesota Supreme Court

precedent holds that the state may not delegate

authority to make future changes to its laws to the

Federal government because the people of Minnesota

retain that power. Wallace v. Comm'r of Tax'n, 184

N.W.2d 588, 591-92 (Minn. 1971). This premise is even

stronger when the delegation is to another state. At

least with delegations to the Federal government,

44a

Minnesota laws are inherently subordinate to federal

laws passed within the scope of federal jurisdiction.

32. Here, the MPCA admits that the “as

amended” language requires immediate incorporation

of the CARB’s rule changes when they are made.

SONAR p. 41. This is a clear delegation of rulemaking

authority and violates the legal principles just

described. It is also a real problem; California has just

announced its intent to change California’s LEV and

ZEV standards incorporated by the Rules by creating

new sections 1961.4 and 1962.4 related to LEV and

ZEV, based on Governor Newsom’s Executive Order N79-20, which “established a goal that 100 percent of

California sales of new passenger car and trucks be

zero-emission by 2035, and directed CARB to develop

and propose regulations toward this goal.” Public

Workshop on Advanced Clean Cars II, available at

https://ww2.arb.ca.gov/events/public-workshopadvanced-clean-cars-ii-1.

33. Despite the MPCA’s testimony that it would

go through rulemaking if changes to its Rules were

“major,” as opposed to “minor,” the Rules do not say

that, and the agency’s testimony as to its own

arbitrary distinctions between major and minor do not

clarify where the line between adoption of California

rules and “default” to federal regulations might

actually occur. The Rules provide MPCA unbridled

discretion, which violates Minnesota law, as described

below.

34. Given that the Rules expressly rely on the

45a

current definitions and regulations provided by the

California standards, the “as amended” language in

the Rules is not severable. “[A] statute cannot be

severed if we determine that the valid provisions ‘are

so essentially and inseparably connected with, and so

dependent upon, the void provisions’ that the

Legislature would not have enacted the valid

provisions without the voided language. " State v.

Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014).

35. Even if the “as amended” language is

severable, it must be struck. If California seeks to

amend its standards, Minnesota must consider

whether to adopt California’s amendments via new

rulemaking.

The MPCA Did Not Have the Authority to Make

Future Rules Via an “As Amended” Provision

36. And even if the “as amended” language of

the Rules is permissible under non-delegation

principles, it rests unbridled discretion in the MPCA

and is vague as to whether future California rule

changes will actually be adopted. More specifically,

while the MPCA’s SONAR claims that “as amended”

“means that any future amendments to the

incorporated California regulations automatically

become part of Minnesota rules,” the SONAR also

claims that “major” Rules changes will not be

automatically incorporated. SONAR p. 41. Yet the

Rules say that they will. Minn. R. 7023.0150, Subp. 2.

37. Granting unbridled discretion to agency

46a

officials to adopt or reject new rules without following

rulemaking procedures violates the Administrative

Procedure Act and Article III, section 1 of the

Minnesota Constitution. Minn. Stat. § 14.05, subd. 1

(“Each agency shall adopt, amend, suspend, or repeal

its rules in accordance with the procedures 13 specified

in sections 14.001 to 14.69.”); Minn. Stat. § 14.03

(nowhere is an “as amended” adoption excepted from

the rulemaking process); Minn. Const. Art. III, sec. 1

(legislative power exclusive to Legislature, not

executive agencies). Future amendments based on

CARB amendments must go through the rulemaking

procedure, but the MPCA claims that it will selectively

decide which amendments to submit to the rulemaking

process. SONAR pp. 40-41. In this way, the MPCA is

trying to act exactly like the Legislature. This kind of

unbridled discretion is impermissible.

Minnesota Does Not Qualify for Use of

California’s Waiver Under the Clean Air Act

38. Finally, Minnesota does not meet the Clean

Air Act’s predicate requirement for adopting

California’s air quality rules. In order to adopt

California’s rules under a CAA waiver, the adopting

state must have “nonattainment” plan provisions

approved by the EPA. 42 U.S.C. § 7507. This is

common sense: if a state is meeting all air quality

standards, there is no need to adopt stricter rules to

clean up the air. The MPCA argued to the

Administrative Law Judge that Minnesota had these

plans approved by the EPA, so it was able to adopt

California’s rules related to motor vehicle emissions.

47a

SONAR p. 35. This is deceptive—Minnesota has one

“nonattainment” plan which was approved for the City

of Eagan alone related to 2008 Lead levels, but Eagan

reached “attainment” status in 2015. 80 Fed. Reg.

51127. There are no areas in Minnesota which are not

at “attainment” levels for all National Ambient Air

Quality Standards (NAAQS). Current Nonattainment

Counties for All Criteria Pollutants (December 31,

2021), available at https://www3.epa.gov/

airquality/greenbook/ancl.html; Status of Minnesota

Designated 14 Areas, available at

https://www3.epa.gov/airquality/urbanair/sipstatus/

reports/mn_areaby poll.html. Because there are no

active nonattainment plans approved for Minnesota,

and certainly none related to greenhouse gas

emissions, Minnesota does not have the authority to

adopt California’s rules under 42 U.S.C. § 7507.

Prayer for Relief

Based on the foregoing allegations, the

administrative record, and the forthcoming briefs and

arguments of counsel, Petitioner respectfully requests

that the Court declare and adjudge the Rules to be

invalid.

Respectfully submitted,

DATED: June 8, 2022

Minnesota Automobile Dealers Association, by their

attorneys:

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UPPER MIDWEST LAW CENTER

Douglas P. Seaton (#127759)

James V. F. Dickey (#393613)

8421 Wayzata Blvd., Suite 300

Golden Valley, MN 55304

612-428-7000

doug.seaton@umlc.org

james.dickey@umlc.org.

/s/ James V. F. Dickey

James V. F. Dickey, #393613

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APPENDIX E

7023.0150 SCOPE AND INCORPORATION BY

REFERENCE.

Subpart 1. Scope. To reduce air pollution from

vehicles in the state, parts 7023.0150 to 7023.0300

establish standards for low-emission vehicles and

zero-emission vehicles.

Subp. 2. Incorporation 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, are incorporated by reference. The

regulations are not subject to frequent change and are

available online at https://oal.ca.gov/publications/ccr/.

Subp. 3. Term substitutions. In applying the

incorporated sections of the California Code of

Regulations, unless the context requires otherwise:

A. "California" means "Minnesota";

B. "CARB," "ARB," or "Air Resources Board"

means the agency; and

C. "Executive Officer" means the commissioner.

Subp. 4. Effective date. Parts 7023.0150 to

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7023.0300, except part 7023.0300, subpart 4, are

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. The

commissioner's notice must also designate the first

effective model year in accordance with United States

Code, title 42, section 7507.

Statutory Authority: MS s 116.07

History: 46 SR 66

NOTE: This part is effective on the date given in

a commissioner's notice published in the State

in part 7023.0150, subpart 2, are granted a waiver by

the U.S. Environmental Protection Agency under

United States Code, title 42, section 7543.

Published Electronically: August 11, 2021

* * *

7023.0200 DEFINITIONS.

Subpart 1. Applicability. For parts 7023.0150 to

7023.0300, the terms in this part have the meanings

given. The definitions in parts 7000.0100 and

7005.0100 and California Code of Regulations, title 13,

section 1900, apply to parts 7023.0150 to 7023.0300

unless the terms are otherwise defined in this part.

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Subp. 2. Authorized emergency vehicle.

"Authorized emergency vehicle" has the meaning given

in Minnesota Statutes, section 169.011.

Subp. 3. CARB. "CARB" means the California

State Air Resources Board as defined in California

Health and Safety Code, division 26, part 1, chapter 1,

section 39003.

Subp. 4. First effective model year. "First effective

model year" means the first model year for which the

standards adopted in parts 7023.0150 to 7023.0300 are

effective according to the commissioner's notice under

part 7023.0150, subpart 4.

Subp. 5. Light-duty truck. "Light-duty truck" has

the meaning given under California Code of

Regulations, title 13, section 1900(b)(11).

Subp. 6. Medium-duty passenger vehicle.

"Medium-duty passenger vehicle" has the meaning

given under California Code of Regulations, title 13,

section 1900(b)(12).

Subp. 7. Medium-duty vehicle. "Medium-duty

vehicle" has the meaning given under California Code

of Regulations, title 13, section 1900(b)(13).

Subp. 8. Military tactical vehicle. "Military

tactical vehicle" means a land combat or

transportation vehicle, excluding a rail-based vehicle,

that is designed for and used by a branch of the United

States armed forces or used as an authorized

52a

emergency vehicle by or for a governmental agency.

Subp. 9. Model year. "Model year" means the

manufacturer's annual production period that includes

January 1 of a calendar year or, if the manufacturer

has no annual production period, the calendar year.

The model year for a motor vehicle manufactured in

two or more stages is the model year in which the

chassis is completed.

Subp. 10. Motor vehicle manufacturer. "Motor

vehicle manufacturer" means a small, independent

low, intermediate, or large volume manufacturer as

defined under California Code of Regulations, title 13,

section 1900(b)(8), (9), (10), and (22).

Subp. 11. New motor vehicle. "New motor

vehicle" means a first effective model year or later

model year motor vehicle with less than 7,500 miles of

use accumulated as of the date of sale or lease.

Subp. 12. Passenger car. "Passenger car" has the

meaning given under California Code of Regulations,

title 13, section 1900(b)(17).

Subp. 13. Transitional zero-emission vehicle

or TZEV. "Transitional zero-emission vehicle" or

"TZEV" has the meaning given under California Code

of Regulations, title 13, section 1962.2(c).

Subp. 14. Used motor vehicle. "Used motor

vehicle" means a first effective model year or later

model year motor vehicle with 7,500 miles or more of

53a

use accumulated as of the date of sale or lease.

Subp. 15. Zero-emission vehicle or ZEV.

"Zero-emission vehicle" or "ZEV" has the meaning

given under California Code of Regulations, title 13,

section 1962.2(a).

Statutory Authority: MS s 116.07

History: 46 SR 66

NOTE: This part is effective on the date given in

a commissioner's notice published in the State

in part 7023.0150, subpart 2, are granted a waiver by

the U.S. Environmental Protection Agency under

United States Code, title 42, section 7543.

Published Electronically: August 11, 2021

* * *

7023.0250 LOW-EMISSION

STANDARDS.

VEHICLE

Subpart 1. Requirement. Beginning with the first

effective model year, all of the following that are

produced by a motor vehicle manufacturer and

delivered for sale or lease in the state must be certified

to the standards incorporated by reference under part

7023.0150, subpart 2, except as provided under

subpart 2:

54a

A. new motor vehicles that are passenger cars,

light-duty trucks, medium-duty passenger vehicles,

and medium-duty vehicles;

B. new light- or medium-duty motor vehicle

engines; and

C. motor vehicles with a new motor vehicle

engine.

Subp. 2. Exceptions. This part does not apply to:

A. a used motor vehicle;

B. a new motor vehicle sold to another dealer;

C. a new motor vehicle sold to be wrecked or

dismantled;

D. a new motor vehicle sold exclusively for

off-highway use;

E. a new motor vehicle sold for registration

out-of-state;

F. a new motor vehicle that has been certified

to standards adopted under authority granted in

United States Code, title 42, section 7521, and that is

in the possession of a rental agency in the state and

that is next rented with a final destination outside of

the state;

G. an authorized emergency vehicle;

55a

H. a military tactical vehicle;

I. a new motor vehicle transferred by

inheritance;

decree;

J. a new motor vehicle transferred by court

K. a new motor vehicle acquired by a state

resident to replace a motor vehicle that was registered

to the resident and that, while out of state, was

damaged, became inoperative beyond reasonable

repair, or was stolen if the replacement motor vehicle

is acquired out of state at the time the previously

owned vehicle was damaged, became inoperative, or

was stolen; or

L. a new motor vehicle purchased and

registered in another state by a person who is a

resident of that state and who subsequently

establishes residency in Minnesota. Upon registering

the new motor vehicle in Minnesota, the person must

provide evidence to the commissioner of the previous

residence and registration.

Subp. 3. Fleet average emissions.

A. For first effective model year motor vehicles

and all subsequent model year motor vehicles to which

this part applies, a motor vehicle manufacturer must

not exceed the fleet average nonmethane organic gas

plus oxides of nitrogen emission values under

California Code of Regulations, title 13, section 1961.2.

56a

Credits and debits may be accrued and used based on

a manufacturer's sales in the state of motor vehicles

subject to this part according to California Code of

Regulations, title 13, section 1961.2(c).

B. For first effective model year motor vehicles

and all subsequent model year motor vehicles to which

this part applies, a motor vehicle manufacturer must

not exceed the fleet average greenhouse gas exhaust

emission values under California Code of Regulations,

title 13, section 1961.3. For first effective model year

motor vehicles and all subsequent model year motor

vehicles, manufacturers of medium-duty vehicles

produced by a motor vehicle manufacturer and

delivered for sale or lease in the state must not exceed

the greenhouse gas emission standards under

California Code of Regulations, title 13, section

1956.8(h)(6). Credits and debits may be accrued and

used based on a manufacturer's sales in the state of

motor vehicles subject to this part according to

California Code of Regulations, title 13, section 1961.3.

Subp. 4. Environmental performance labels.

Beginning with the first effective model year and all

subsequent model years, all new motor vehicles subject

to this part produced by a motor vehicle manufacturer

and delivered for sale or lease in the state must be

affixed with emission control labels and environmental

performance labels according to California Code of

Regulations, title 13, section 1965.

Subp. 5. Warranty requirements. For all motor

vehicles subject to this part, the motor vehicle

57a

manufacturer must provide defect warranty coverage

that complies with California Code of Regulations, title

13, sections 2035, 2037 to 2041, and 2046.

Subp. 6. Recall requirements. For all motor

vehicles subject to this part and subject to recall in

California, the motor vehicle manufacturer must

undertake a recall campaign in this state according to

California Code of Regulations, title 13, sections 2111

to 2121 and 2122 to 2135, unless the manufacturer

demonstrates to the commissioner that the recall is not

applicable to motor vehicles registered in Minnesota.

Subp. 7. Reporting requirements.

A. By May 1 of the calendar year after the end

of the model year, a motor vehicle manufacturer must

annually submit to the commissioner a report

demonstrating that the motor vehicle manufacturer

has met the requirements of subpart 3, item A, for its

fleet delivered for sale in the state.

B. By May 1 of the calendar year after the end

of the model year, a motor vehicle manufacturer must

annually submit to the commissioner a report

demonstrating that the motor vehicle manufacturer

has met the requirements of subpart 3, item B, for its

fleet delivered for sale in the state.

C. If requested by the commissioner, a motor

vehicle manufacturer must provide reports in the same

format as provided to CARB on all assembly-line

emission testing and functional test results collected

58a

as a result of compliance with this part, warranty

claim reports, recall reports, and any other reports

required by CARB under the regulations incorporated

by reference under part 7023.0150. The reports must

be supplemented with data on motor vehicles delivered

for sale or registered in Minnesota.

D. If the commissioner deems it necessary to

administer and enforce this part, the commissioner

must require a motor vehicle manufacturer subject to

this part to submit additional documentation,

including all certification materials submitted to

CARB.

Subp. 8. Record availability and retention;

reporting noncompliance.

A. Upon oral or written request of the

commissioner, a person subject to this part must

furnish to the commissioner or allow the commissioner

to access and copy all records that relate to the motor

vehicles that are subject to this part and that are

relevant for determining compliance with this part.

Unless otherwise specified, a person subject to this

part must retain all relevant records for at least five

years after creating the records.

B. If a report issued by a motor vehicle

manufacturer under subpart 7 demonstrates

noncompliance with the fleet average under subpart 3

for a model year, the manufacturer must, within 60

days, file a report with the commissioner to document

the noncompliance. The report must identify all motor

59a

vehicle models delivered for sale or lease in the state,

the models' corresponding certification standards, and

the percentage of each model delivered for sale in this

state and California in relation to total fleet sales in

the respective state.

Statutory Authority: MS s 116.07

History: 46 SR 66

NOTE: This part is effective on the date given in

a commissioner's notice published in the State

in part 7023.0150, subpart 2, are granted a waiver by

the U.S. Environmental Protection Agency under

United States Code, title 42, section 7543.

Published Electronically: August 11, 2021

* * *

7023.0300 ZERO-EMISSION

STANDARDS.

VEHICLE

Subpart 1. Requirement. Beginning with the first

effective model year, a motor vehicle manufacturer's

sales fleet of passenger cars and light-duty trucks

produced by motor vehicle manufacturers and

delivered for sale or lease in the state must contain at

least the same applicable percentage of ZEVs required

under California Code of Regulations, title 13, section

1962.2.

60a

Subp. 2. Credit bank; reporting requirements;

record availability and retention.

A. Beginning in the first effective model year,

a motor vehicle manufacturer subject to this part must

open an account in the California ZEV credit system

for banking credits earned in Minnesota. The account

must be opened no later than March 1 of the calendar

year after the end of the first effective model year. A

motor vehicle manufacturer must notify the

commissioner within 30 days of opening an account in

the California ZEV credit system for the

manufacturer's Minnesota ZEV credits.

B. At least annually by May 1 of the calendar

year after the close of a model year, a motor vehicle

manufacturer must submit a report to the

commissioner that identifies the necessary delivery

and placement data of all motor vehicles generating

ZEV credits and all transfers and acquisitions of ZEV

credits, according to California Code of Regulations,

title 13, section 1962.2. The report may be amended

based on late sales.

C. Upon oral or written request of the

commissioner, a person subject to this part must

furnish to the commissioner or allow the commissioner

to access and copy all records that relate to the motor

vehicles that are subject to this part and that are

relevant for determining compliance with this part.

Unless otherwise specified, a person subject to this

part must retain all relevant records for at least five

years after creating the records.

61a

Subp. 3. Requirement to make up ZEV deficit.

A motor vehicle manufacturer that delivers for sale in

the state fewer ZEVs or TZEVs than required to meet

its ZEV credit obligation in a given model year must

make up the deficit by submitting a commensurate

amount of ZEV credits to the commissioner according

to California Code of Regulations, title 13, section

1962.2(g)(7). The number of motor vehicles not

meeting the ZEV credit obligation must be equal to the

manufacturer's credit deficit, rounded to the nearest

1/100th and calculated according to the equation in

California Code of Regulations, title 13, section

1962.2(g)(8).

Subp. 4. Early-action credits.

A. Beginning with model year 2022 and ending

at the beginning of the first effective model year, a

motor vehicle manufacturer may earn early-action

ZEV credits for delivering ZEVs for sale in the state. A

motor vehicle manufacturer choosing to earn

early-action ZEV credits under this subpart must

notify the commissioner to open an account to track

early-action ZEV credits in Minnesota no later than

March 1 of the calendar year after the close of the first

model year for which the manufacturer intends to

accrue early-action credits.

B. New motor vehicles delivered for sale in the

state under this subpart earn early-action ZEV credits

with the same values established in California Code of

Regulations, title 13, section 1962.2.

62a

C. A motor vehicle manufacturer that notifies

the commissioner under item A must submit a report

to the commissioner at least annually by May 1 of the

calendar year after the close of the model year that

identifies the necessary delivery and placement data

of all motor vehicles generating early-action ZEV

credits under this subpart, according to California

Code of Regulations, title 13, section 1962.2. The

report may be amended based on late sales.

D. After the reporting deadline under item C

during the first effective model year and after

receiving notice from a motor vehicle manufacturer

under subpart 2, item A, the commissioner must load

the ZEV credits earned by the motor vehicle

manufacturer under this subpart into the

manufacturer's California ZEV credit system account.

E. This subpart is effective beginning with a

motor vehicle manufacturer's model year 2022.

Subp. 5. Onetime credit allotment.

A. For the first effective model year, the

commissioner must deposit into each motor vehicle

manufacturer's account a credit allotment equivalent

to the first effective model year's ZEV credit

requirement for that motor vehicle manufacturer.

B. The credit amount under item A must be

calculated for the first effective model year according

to California Code of Regulations, title 13, section

1962.2(b)(1)(A) and (B).

63a

C. The commissioner must deposit the onetime

credit allotment at the same time that the

commissioner loads the ZEV credits earned by the

motor vehicle manufacturer under subpart 4, item D,

into the manufacturer's California ZEV credit system

account.

Statutory Authority: MS s 116.07

History: 46 SR 66

NOTE: Subparts 1, 2, 3, and 5 are effective on the

date given in a commissioner's notice published in the

State Register after the standards incorporated by

reference in part 7023.0150, subpart 2, are granted a

waiver by the U.S. Environmental Protection Agency

under United States Code, title 42, section 7543.

Published Electronically: August 11, 2021

64a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.