Appendix — General Motors Corp. v. Costle
Supreme Court brief1980
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IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1979
No. 7997 QO = 1 2 62
GENERAL Motors CORPORATION, et al., Petitioners,
Vv.
DouGias M. Costie, Administrator of the Environmental
Protection Agency, ENVIRONMENTAL PROTECTION AGENCY, AND
STATE OF CALIFORNIA, Respondents.
Appendix To
Petition For A Writ Of Certiorari To The United States
Court Of Appeals For The District Of Columbia Circuit
Petitioners
General Motors Corporation
Chrysler Corporation
Motor and Equipment Manufacturers Association
Automobile Importers of America, Inc.
Automotive Service Industry Association, ef al.
Of Counsel: WILLIAM T. COLEMAN, JR.
Otis M. SMITH DONALD T. BLISS
General Counsel CARL R. SCHENKER, JR.
WILLIAM L. WEBER, JR. O’MELVENY & MYERS
MAYNARD L. TIMM 1800 M Street, N.W.
GENERAL MOTORS Suite 500 South
CORPORATION Washington, D.C. 20036
3044 West Grand Blvd. (202) 457-5300
Detroit, Michigan 48202 Counsel for General Motors
Corporation
Additional Counsel Listed on Inside Cover
PRESS OF BYRON S. ADAMS PRINTING. INC. WASHING EON, DC
HRA D. ANDERSON, JR.
MICHAEL W. GRICE
Office of the General Attorney
CHRYSLER CORPORATION
P.O. Box 1919
Detroit, Michigan 48121
(313) 956-2075
Counsel for Chrysler Corporation
MARK R. JOELSON
MARC L. FLEISCHAKER
ARENT, FOX, KINTNER,
PLOTKIN & KAHN
1815 H Street, N.W.
Washington, D.C. 20006
(202) 857-6053
Counsel for Motor and Equipment
Manufacturers Association
MILTON D. ANDREWS
DONALD M. SCHWENTKER
DENNIS A. ADELSON
RIVKIN SHERMAN and LEVY
900 17th Street, N.W.
Washington, D.C. 20006
(202) 347-6007
Counsel for Automobile Importers
of America, Inc.
HAROLD T. HALFPENNY
JAMES F. FLANAGAN
HALFPENNY, HAHN &
ROCHE
111 West Washington Street
Chicago, Illinois 60602
(312) 782-1829
Counsel for Automotive
Service Industry Association,
et al.
A.
TABLE OF CONTENTS
PAGE
Opinion of the United States Court of App-als for the Dis-
trict of Columbia Circuit, The Motor and Equipment
Manufacturers Association, Inc. v. Costle and Con-
solidated Cases, No. 78-1896 et al., Aug. 3, 1979..... 1
Order of Aug. 7, 1979 Making Formal Amendments in
SIE MERGE 55s wiv os ek See bos beac teks 67a
Order of Sept. 17, 1979 Denying Petition for Rehearing
ORs We va ae ener ere ee eras 70a
Order of Sept. 17, 1979 Denying Suggestion for Rehearing
I a A Gio i oo oo VRS FOS u Se rh oe Bee Tla
Order by Mr. Chief Justice Burger Extending Until Feb.
14, 1980 the Time Within Which to File a Petition for
ee os ee a a eA 72a
Decision of the Administrator of the Environmental Pro-
tection Agency Granting Waiver of Federal Preemp-
tion for California’s Original In-Use Maintenance
Regulations, 43 Fed. Reg. 32182 (July 25, 1978) ..... 73a
Letter of Mar. 8, 1979 From Marvin B. Durning (EPA) to
Thomas C. Austin (ARB) Addressing California’s
PROBUNRIONS OS AMIORGOE |. in ick cok eiseciosss 86a
Relevant Constitutional Provisions, Statutes, and Regula-
tions
First Amendment to United States Constitution ..... 88a
Fourteenth Amendment to United States Constitution 88a
Section 207 of the Clean Air Act, 42 U.S.C. § 7541 .. 88a
Section 209 of the Clean Air Act, 42 U.S.C. § 7543 .. 94a
California Exhaust Emission Standards and Test Pro-
cedures for 1980 Model Passenger Cars, Light-
Duty Trucks, and Medium-Duty Vehicles (In-Use
Maintenance Regulations as Originally Adopftd) 96a
Amendments to California Exhaust Emission Stand-
ards and Test Procedures for 1980 Model Passen-
ger Cars, Light-Duty Trucks, and Medium-Duty
Vehicles (In-Use Maintenance Regulations as’
ERR er aS aire ieee on ne) ar Cet ea 100a
Ab Sa AIS te) er aetna ~ eee
la
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Court of Ayyrals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 78-1896
THE MOTOR AND EQUIPMENT MANUFACTURERS
ASSOCIATION, INC., PETITIONER
V.
ENVIRONMENTAL PROTECTION AGENCY and
DOUGLAS COSTLE, Administrator,
Environmental Protection Agency, RESPONDENTS
AUTOMOBILE IMPORTERS OF AMERICA
and STATE OF CALIFORNIA, INTERVENORS
No. 78-1901
AUTOMOTIVE SERVICE INDUSTRY, ET AL., PETITIONERS
Vv.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
STATE OF CALIFORNIA and
AUTOMOBILE IMPORTERS OF AMERICA, INTERVENORS
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
2a
No. 78-1931
MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE
UNITED STATES, INC., PETITIONER
V.
DouGLas M. CosTLe, Administrator of the
Environmental Protection Agency
Environmental Protection Agency, RESPONDENTS
STATE OF CALIFORNIA and
AUTOMOBILE IMPORTERS OF AMERICA, INTERVENORS
No. 78-1943
CHRYSLER CORPORATON, PETITIONER
¥.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
. STATE OF CALIFORNIA and
UTOMOBILE IMPORTERS OF AMERICA, INTERVENORS
No. 78-1944
GENERAL MOTORS CORPORATION, PETITIONER
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and DouGLas M. Coste, Administrator of the
United States Environmental Protection Agency
RESPONDENTS ;
STATE OF CALIFORN
IA and
AUTOMOBILE IMPORTERS OF AMERICA, INTERVENORS
———————
AE APTN hrs POE
3a
Petitions for Review of Orders of the
Environmental Protection Agency
Argued March 26, 1979
Decided August 3, 1979
John H. Pickering, with whom Timothy N. Black and
Charles H. Lockwood were on the brief, for petitioner in
No. 78-1931.
William T. Coleman, Jr. with whom Richard C. War-
mer, Donald T. Bliss, Jr. and William L. Weber, Jr. were
on the brief, for petitioner in No. 78-1944.
Mark R. Joelson, with whom Marc L. Fleischaker and
Lawrence P. Postol were on the brief, for petitioner in
No. 78-1896.
James F. Flanagan, with whom Harold T. Halfpenny
was on the brief, for petitioner in No. 78-1901.
Victor C. Tomlinson was on the brief, for petitioner in
No. 78-1943.
James McNab, III, Attorney, Environmental Protec-
tion Agency, a member of the bar of the Supreme Court
of California, pro hac vice, by special leave of court,
Bruce I. Bertelsen, Attorney, Environmental Protection
Agency, a member of the bar of the Supreme Court of
Michigan, pro hac vice, by special leave of court, and
David Dearing, Attorney, Department of Justice, with
whom Sanford Sagalkin, Acting Assistant Attorney Gen-
eral, Joan Z Bernstein, Genera’ Counsel, and Gerald K.
Gleason, Attorney, Department of Justice, were on the
brief, for respondent. James Moorman and Lloyd Guerct,
Attorneys, Department of Justice, also entered appear-
ances for respondents.
Joel S. Moskowitz, Deputy Attorney General of the
State of California, for intervenor State of California.
4a
Milton D. Andrews, Dennis M. Schwentker, and Lance
E. Tunnick were on the brief for intervenor Automobile
Importers of America, Inc.
Before WRIGHT, Chief Judge, and MacKINNON and
Ross, Circuit Judges.
Opinion for the Court filed by Circuit Judge MAC-
KINNON.
MACKINNON, Circuit Judge: Section 209 of the Clean
Air Act, 42 U.S.C. § 7543 (Supp. I 1977), requires the
Administrator of the Environmental Protection Agency
(EPA) to waive federal preemption. of motor vehicle
emission control regulations for the State of California
unless he makes certain findings that a waiver is inap-
propriate.’ In July 1978 the Administrator waived fed-
1 Section 209 as amended in 1977 provides:
(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 preced-
ent to the initial retail sale, titling (if any), or registra-
tion of such motor vehicle, motor vehicle engine, or equip-
ment.
(b) Waiver
(1) The Administrator shall, after notice and oppor-
tunity for public hearing, waive application of this sec-
tion to any State which has adopted standards (other
than crankcase emission standards) for the contro] of
emissions from new motor vehicles or new motor vehicle
engines prior to March 30, 1966, if the State determines
that the State standards will be, in the aggregate, at least
as protective of public health and welfare as applicable
Federal standards. No such waiver shall be granted if the
Administrator finds that—
[Continued]
Sa
eral preemption for California regulations limiting the
amount of maintenance that a manufacturer can require
of motor vehicle purchasers in the written instructions
which accompany new motor vehicles sold in that State.
1 [Continued]
(A) the determination of the State is arbitrary
and capricious.
(B) such State does not need such State stand-
ards to meet compelling and extraordinary condi-
tions, or
(C) such State standards and accompanying en-
forcement procedures are not consistent with section
7521 (a) of this title.
(2) If each State standard is at least as stringent as
the comparable applicable Federal standard, such State
standard shall be deemed to be at least as protective of
health and welfare as such Federal standards for pur-
poses of paragraph (1).
(3) In the case of any new motor vehicle or new motor
vehicle engine to which State standards apply pursuant
to a waiver granted under paragraph (1), compliance
with such State standards shall be treated as compliance
with applicable Federal standards for purposes of this
subchapter.
(c) Certification of vehicle parts or engine parts
Whenever a regulation with respect to any motor ve-
hicle part or motor vehicle engine part is in effect under
section 7541(a) (2) of this title, no State or political
subdivision thereof shall adopt or attempt to enforce any
standard or any requirement of certification, inspection,
or approval which relates to motor vehicle emissions and
is applicable to the same aspect of such part. The pre-
ceding sentence shall not apply in the case of a State with
respect to which a waiver is in effect under subsection
(b) of this section.
(d) Control, regulation, or restrictions on registered or
licensed motor vehicles
[Continued]
6a
The issue in these cases? is whether the Administrator’s
decision to do so was arbitrary, capricious, or otherwise
not in accordance with law. We answer that question in
1 [Continued]
Nothing in this part shall preclude or deny to any
State or political subdivision thereof the right otherwise
to control, regulate, or restrict the use, operation, or
movement of registered or licensed motor vehicles.
42 U.S.C. § 7548 (Supp. I 1977). California is the only state
which had adopted emission control standards (other than
crankcase emission standards) before March 30, 1966. It is
thus the only state eligible for a waiver.
? This opinion disposes of the petitions filed in Docket Nos.
78-1896, 78-1901, 78-1931, 78-1948, and 78-1944, each of
which challenges the Administrator’s July 1978 decision to
waive federal preemption for California’s in-use maintenance
regulations. Petitioners in Docket Nos. 78-1896, 78-1931, 78-
19438, and 78-1944 include The Motor & Equipment Manufac-
turers Association, the Automotive Service Industry Associ-
ation, the Motor Vehicle Manufacturers Association of the
United States, the Chrysler Corporation, and the General
Motors Corporation. These petitioners jointly raise all the
issues discussed herein except for those relating to the Ad-
ministrator’s obligation to consider the antitrust implications
of the waiver. The antitrust implications of the waiver is
the concern of the petition filed in Docket No. 78-1901. Peti-
tioners in that case are The Automotive Service Industry
Association and the Motor & Equipment Manufacturers Asso-
ciation, Inc. For ease of reference, we refer to the propon-
ents of the waiver denial as “petitioners” throughout this
opinion, but we wish to make clear that not all the parties
join in the argument about the antitrust implications of the
Administrator’s decision to waive preemption.
Argued with the foregoing petitions was the petition filed
in Docket No. 78-1794. Although this petition challenges a
different waiver decision, it raises essentially the same issues
discussed herein. We dispose of it as a companion to this
opinon. Motor & Equipment Manufacturers Assn. v. EPA
— F.2d —— (D.C. Cir. Docket No. 78-1794 decided Au-
gust 3, 1979).
Ta
the negative, and we accordingly deny the petition to set
aside the Administrator’s order.’
I
BACKGROUND
The federal program for the control of motor vehicle
emissions is the product of the Clean Air Act as amended,
42 U.S.C. $$ 7401 et seg. (Supp. I 1977).* Section 202
of this statute establishes nationwide motor vehicle emis-
sion standards applicable to certain model years for three
major pollutants, carbon monoxide, hydrocarbons, and
oxides of nitrogen. Jd. § 7521(b). It also sets long-term
goals for the control of emissions, and authorizes the
EPA Administrator to prescribe standards consistent with
those goals for model years not covered by the statute.
Id. § 7521(a). These regulations can take effect at such
time as the Administrator finds them to be technologically
feasible, giving appropriate consideration to the costs of
compliance. /d.
’Qur jurisdiction derives from 42 U.S.C. § 7607 (b) (1)
(Supp. I 1977).
4 The Clean Air Act includes the basic legislation enacted as
The Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392,
as well as amendments made by The Motor Vehicle Air Pollu-
tion Control Act, Pub. L. No. 89-272, 79 Stat. 992 (1965) ;
The Clean Air Act Amendments of 1966, Pub. L. No. 89-675,
80 Stat. 954; The Air Quality Act of 1967, Pub. L. No. 90-148,
81 Stat. 485; The Clean Air Act Amendments of 1970, Pub.
L. No. 91-604, 84 Stat. 1676; The Comprehensive Health
Manpower Training Act, Pub. L. No. 92-157, 85 Stat. 431
(1971); The Energy Supply & Environmental Coordination
Act, Pub. L. No. 93-319, 86 Stat. 248 (1974) ; The Safe Drink-
ing Water Act of 1977, Pub. L. No. 95-190, 91 Stat. 1399;
and The Clean Air Act Amendments of 1977, Pub. L. No. 95-
95, 91 Stat. 685.
8a
Section 206 requires the Administrator to test or to
have tested any new motor vehicle or new motor vehicle
engine submitted by a manufacturer to determine whether
the vehicle or engine conforms to the standards con-
tained in section 202 and in the regulations promulgated
under it. Jd. §7525(a).5 This “certification process”
consists of various procedures which enable a manufac-
turer to demonstrate by use of a prototype that it has
designed a class of motor vehicle which complies with the
standards. One feature of this certification process is a
durability test to determine the effects of deterioration on
the functioning of the emission control system.® The Ad-
ministrator limits by regulation the amount of “scheduled
maintenance” that can be performed on the prototype
vehicle during this durability test.’
If the Administrator finds that the new motor vehicle
will meet the applicable emissions standards he issues
a certificate of conformity to cover the class of motor
vehicles represented by the prototype. Jd. at 7525(a).
This certificate is a condition precedent to the initial
retail sale of new motor vehicles.®
5 Whenever the statute refers to “new motor vehicle” the
phrase is followed by “or new motor vehicle engine.” We
hereafter refer to “new motor vehicle” as including “new
motor vehicle engine.”
® The regulations governing the federal certification pro-
gram are found in 40 C.F.R. § 86.078 (1978).
7 See id. § 86.078-25. The durability test is designed to en-
sure that a vehicle’s emission control system will retain its
control capacity, a purpose obviously frustrated if the manu-
facturer is permitted to repair the system at will. As will in-
evitably happen on occasion, if a part fails before maintenance
is scheduled, “unscheduled maintenance” must be undertaken.
8 Section 203 prohibits a manufacturer from introducing
into commerce a new motor vehicle not covered by a certificate
of conformity. 42 U.S.C. § 7522(a) (1) (Supp. I 1977). Sec-
tion 205 provides for the imposition of a civil penalty of up to
a) sepmresetaromene am were nae
9a
Section 207 imposes two types of warranty obligations
on manufacturers which are directly related to the stand-
ards issued in section 202. First it requires manufac-
turers to warrant to purchasers that each new motor ve-
hicle is designed, built, and equipped to conform to the
section 202 standards, and further to warrant that each
is free of defects in materials and workmanship which
cause a motor vehicle to fail to conform to the standards
for their useful life. Jd. § 7541(a).®° This is the defect
warranty. Second, it provides that the Administrator
shall impose a “performance warranty” on manufacturers
whereby manufacturers will bear the costs of remedying
any nonconformity with section 202 emission standards
on vehicles maintained in accordance with the written
maintenance instructions required by the statute. Jd.
§ 7541(b).2° The written maintenance instructions, which
$10,000 for violations of this prohibition. Jd. § 7524. In addi-
tion to prescribing the certification process, section 206 au-
thorizes the Administrator to develop “test procedures” to
determine whether motor vehicles under production actually
conform to the standards pursuant to which the certificate
of conformity was issued. If these tests reveal that the manu-
factured vehicles do not so conform, the Administrator is em-
powered to suspend, revoke, or modify the certificate. Jd.
7525 (b).
®*Section 207 refers to section 202 for its definition of
“useful life.” 42 U.S.C. § 7541(a) (Supp. I 1977). Section
202 defines the useful life of light duty vehicles (and engines)
and of “other motor vehicles” (and engines) as five years or
fifty thousand miles, whichever first occurs. Jd. § 7521(d).
The Administrator can make an upward adjustment in the
useful life of “other motor vehicles” if he determines that a
period of greater duration or mileage is appropriate. Jd.
10 Before imposing a performance warranty the Adminis-
trator must first determine that there are methods and pro-
cedures which accord with good engineering practices and
which are capable of correlation to the certification process
that can ascertain whether new motor vehicles in actual use
comply with the section 202 standards for their useful life.
10a
manufacturers must furnish with each new motor vehicle,
must conform to regulations promulgated by the Admin-
istrator. Id. §7541(c)(3). If the purchaser fails to
comply with the written instructions it relieves the manu-
facturer of his performance warranty obligations.”
By virtue of the unique status it enjoys under section
209 of the Clean Air Act, California has an emissions
control program that parallels the federal program in
many respects. This litigation grew out of a decision
made by the California Air Resources Board (CARB),
which is California’s version of the federal EPA in the
area of emissions control regulations. In May 1977, the
CARB adopted regulations limiting the amount of sched-
uled maintenance that can be performed on the proto-
type used in the durability testing during California’s
certification process."* No party in this court challenges
42 U.S.C. §7541(b) (Supp. I 1977). The performance
warranty like its counterpart runs to the ultimate and
any subsequent purchaser. Jd. Whereas section 202’s defi-
nition of useful life governs the duration of the defect
warranty, however, the performance warranty applies to
the entire “emission control device or system” only for twenty-
four months or twenty-four thousand miles, whichever first
occurs. Jd. The performance warranty thereafter applies only
to “a catalytic conveter, thermal reactor, or other component
installed on or in a vehicle for the sole or primary purpose of
reducing vehicle emissions.” 7d.
11 At the time this controversy arose, the Administrator
had not yet made the requisite findings and thus had not pro-
mulgated regulations governing maintenance instructions.
See 43 Fed. Reg. 32182, 32184 (1978).
12 The regulations restrict the scheduled maintenance to the
inspection, replacement, cleaning, adjustment, or service, at
specified intervals, as follows: drive belt tension (at 30,000
miles), exhaust gas sensor (30,000), spark plugs (30,000),
choke lubrication (30,000), and valve lash (15,000). If the
manufacturer can show that such maintenance is actually
done in use, it may additionally schedule maintenance for the
OES cAI rs ere ee ete me ae
lla
the application of these maintenance restrictions to the
certification process. Rather the object of challenge is the
CARB’s simultaneous decision to limit the maintenance a
manufacturer can require of purchasers in the written
instructions manufacturers must furnish with each new
motor vehicle. Under these “in-use maintenance regula-
tions,” a manufacturer cannot require a purchaser to per-
form maintenance beyond that which a manufacturer can
perform during the certification process.'* The furnishing
of written instructions which abide by the in-use main-
tenance regulations is a condition precedent to the initial
retail sale of new motor vehicles in California. The
regulations also define the manufacturers’ warranty
obligations.
Foreshadowing the CARB’s decision to adopt the regu-
lations was a series of public hearings and workshops
the CARB held to discuss proposed regulations limiting
certification and in-use maintenance. At the first of these
meetings, held in November 1976, the major topic was a
engine idle speed, the valve lash, and the engine bolt torque
at 5,000 miles. California Exhaust Emission Standards &
Test Procedures {| 3f (1978), reprinted in Joint Appendix
Statutory Supplement (J.A.S.S.) at 263-65. These regula-
tions apply to 1980 and subsequent model year gasoline-
powered passenger cars and to 1981 and subsequent model
year gasoline-powered light duty trucks and medium duty
vehicles. Jd. The regulations are incorporated by reference
in 13 Cal. Admin. Code § 1960(c).
8 See note 12 supra. The one difference is that for in-use
maintenance the CARB’s Executive Officer can approve addi-
tional in-use maintenance requirements which he finds neces-
sary to account for extreme driving conditions or to ensure
safe operation. California Exhaust Emission Standards &
Test Procedures {| 3g (1978), reprinted in J.A.S.S. at 267-68;
see Amendments to California Exhaust Emission Standards
& Test Procedures, "1 (1979), reprinted in Joint Appendix
(J.A.) at A110; note 18 infra.
12a
CARB staff report which stated that “[d]ata available
from emissions testing of in-use vehicles show that the
degree of emission control which was demonstrated dur-
ing the certification program is not being realized.” "
The staff contended that one of the reasons the emissions
systems on in-use vehicles were not controlling emissions
as they had during certification was improper mainte-
nance on emission-related parts. The staff suggested that
by lowering the amount of maintenance that needed to be
done on in-use vehicles, the CARB could reduce the risks
of improper maintenance and encourage the production
of more durable emission-related parts.
This staff report contained recommendations on the
amount of maintenance that ought to be allowed, but
owing to objections by manufacturers the CARB deferred
any decision on the proposals. Over the next six months,
the CARB staff studied the problem further, -concentrat-
ing particularly on the questions raised by manufactur-
ers about the technological feasibility of limiting main-
tenance on various parts.’® The final recommendations
14 California Air Resources Board, Staff Report No. 76-22-2
(b), 1 (November 23, 1976), reprinted in J.A. at 102.
15 In December 1976, the CARB conducted workshops for
members of its staff and representatives of the motor vehicle
manufacturers and parts and services industry. Although the
staff concluded after these workshops that the statements of
manufacturers “support most of the reduction in allowable
maintenance... proposed by the staff,” it concluded that addi-
tional study on technological feasibility and related problems
was necessary before any final decision on the proposals. Cali-
fornia Air Resources Board, Supplement to Staff Report No.
76-22-2(b), 10-11 (December 14, 1976), reprinted in J.A. at
124. Many of the manufacturers’ objections related to the
CARB staff’s use of a study on technological feasibility based
only on mileage (as opposed to mileage and time) intervals.
See text accompanying notes 62-63 infra. Acting on the staff
recommendation, the CARB postponed consideration of the
in-use maintenance regulations. California Air Resources
A AO ts NACA BA ai on the at
13a
the staff made to the CARB significantly altered the
staff’s earlier recommendations on the amount of main-
tenance a manufacturer could require of motor vehicle
purchasers.'* The CARB solicited comments from manu-
facturers and other interested parties on these proposals.
After formally adopting the regulations the CARB
wrote to the EPA requesting a waiver pursuant to sec-
tion 209. In accordance with the statute the Administra-
tor conducted a public hearing at which all interested
parties were invited to offer testimony for and against
the waiver request. After this hearing was held, Con-
gress amended the Clean Air Act, altering among other
things the waiver provision.” The Administrator an-
nounced that he would conduct another hearing to ex-
plore the implications of these amendments for the
CARB’s regulations. In the interim, the CARB adopted
a resolution in which it found that the maintenance reg-
Board, Minutes of Meeting 76-23, 1 (December 14, 1976),
reprinted in J.A. at 112.
In January 1977, the CARB staff sent out questionnaires
soliciting information on technological feasibility. In April,
the staff issued another report in which it significantly altered
the proposed maintenance restrictions. See note 16 infra. Pub-
lic hearings were held on the proposals in April and in May.
'® See California Air Resources Board, Staff Report No.
77-12-1, 17 (May 26, 1977), reprinted in J.A. at 178. These
recommendations did not significantly differ from those ad-
vanced in Apri]. See California Air Resources Board, Staff
Report No. 77-9-2, 17 (April 28, 1977), reprinted in J.A. at
142. The original staff recommendations would have limited
maintenance to the adjustment of the valve lash at 15,000
miles and the air filter at 30,000 miles. See California Air
Resources Board, Staff Report No. 76-22-2(b), 8 (November
23, 1976), reprinted in J.A. at 109.
‘Clean Air Act Amendments of 1977, Pub. L. No. 95-95,
§ 207, 91 Stat. 755. The 1977 amendments applied to pending
waiver requests. See 42 Fed. Reg. 45942 (1977), reprinted
in J.A. at 52-54.
14a
ulations “individually and collectively” met the require-
ments imposed by the amendments.’* The CARB intro-
duced this resolution and the accompanying staff report
at the secofd EPA hearing on the waiver request.
18 California Air Resources Board, Resolution No. 77-48, 4
(September 29, 1977), reprinted in J.A. at 279. This resolu-
tion was based on a staff report which concluded that the in-
use maintenance regulations, when coupled with other revi-
sions in the State’s emissions control program, would result
in identifiable emissions benefits. California Air Resources
Board, Staff Report No. 77-20-2, 24 (September 12, 1977 3
reprinted in J.A. at 229. See note 59 infra.
A large portion of the manufacturers’ complaints about the
in-use maintenance regulations rested on the CARB’s original
decision to restrict what a manufacturer could recommend to
—as opposed to require of—motor vehicle purchasers. The
manufacturers reasoned that they ought to be able to suggest
any maintenance they believed reasonable and necessary. In
response to these criticisms, the CARB in February 1979 de-
cided to adopt emergency amendments to its in-use mainte-
nance regulations to clarify what a manufacturer could and
could not include in the written instructions. See California
Air Resources Board, Notice of Public Hearing, 1 (February
22,1979), reprinted in J.A. at A104. These regulations permit
the manufacturers to recommend additional maintenance as
long as they make clear that this recommended maintenance
is not required. Amendments to California Exhaust Emission
Standards & Test Procedures § 1 (1979), reprinted in J.A. at
A110; see California Air Resources Board, Staff Report [Un-
numbered], 2-3 (March 2, 1979), reprinted in J.A. at A117-18.
The regulations were formally confirmed by the CARB after
oral argument in these cases. See Joint Supp. Memo of Peti-
tioners at 5-6.
As the dates indicate, the emergency amendments post-dated
the Administrator’s waiver decision and thus obviously played
no part in it. Some of the petitioners therefore argue that
the regulations are not properly before this court.
It is basic that agency action cannot be sustained on the
basis of information not relied upon by the agency or disclosed
in its record of consideration. Gulf State Utilities Co. v. FPC,
411 U.S. 747, 764 (1973). Although this court has sanctioned
at nt se Bae aerate naeen AOS ate
ER A SO SE BA Set
15a
Nine months after the second hearing the Adminis-
trator announced his decisicn to waive federal preemp-
tion of the in-use maintenance regulations. He offered
two basic reasons for his decision. First, he said, there
was no plausible evidence in the record to indicate that
California’s new in-use maintenance regulations would
impair the ability of California’s emission standards—
for which a waiver had already been granted—to protect
the public health and welfare at least as ably as the cor-
responding federal standards. Second, he said, the manu-
facturers had failed to show that adherence to the regula-
tions would be technologically infeasible, the costs of com-
pliance considered. The Administrator concluded that
lacking such evidence he had no alternative but to grant
the waiver request.
These petitions ensued.
supplementation of the record in certain circumstances, see
Amoco Oi] Co. v. EPA, 501 F.2d 722, 729 n.10 (D.C. Cir.
1974), the practice decidedly is the exception not the rule.
The problem here, however, is very different from the situa-
tion in which the agency seeks to support an unchanged agency
rule or order of continuing effect with new evidence never
tested in the administrative process. Rather here there is a
fundamental change in the state of affairs: the regulations
to which petitioners primarily object no longer exist. A cor-
nerstone of our jurisprudence is that an Article III court
does not sit to issue advisory opinions on abstract questions.
Were we to ignore the public record of the CARB’s amend-
ments we would in effect be deciding a hypothetical question
Consequently, taking judicial notice of the CARB amendments,
we hold that insofar as petitioners’ claims pivot on the ear-
lier restrictions on what manufacturers could recommend to
(as opposed to require of) vehicle owners, these claims are
moot. Cf. EPA v. Brown, 431 U.S. 99, 103 (1977) (per
curiam) (subsequent change in effect of regulati
controversy moot). ulations renders
16a
II
STANDARD OF REVIEW
At the outset we note the modest scope of our inquiry.
Three points bear emphasis. First, our review here is
of the Administrator’s decision to waive federal pre-
emption for the State of California, not of California's
decision to adopt the in-use maintenance regulations.
Our concern is whether a federal officer properly dis-
charged his responsibilities under a federal statute. If
petitioners dislike the substance of the CARB’s regula-
tions, or if they believe the procedures the CARB used
to enact them were unsatisfactory, then they are free
to challenge the regulations in the state courts of Cali-
fornia.
Second, section 706 of the Administrative Procedure
Act, 5 U.S.C. § 706 (1976), governs our examination of
whether the Administrator properly discharged his re-
sponsibilities under section 209. Ascaro v. Environmental
Protection Agency, 578 F.2d 819, 325 (D.C. Cir. 1978) ;
National Association of Demolition Contractors, Inc. v.
Costle, 565 F.2d 748, 750 n.1 (D.C. Cir. 1977). This
means we must uphold the Administrator’s action un-
less we find that it is “ ‘arbitrary and capricious, ae
or otherwise not in accordance with law’ or if [it] fails
to meet statutory, procedural, or constitutional require-
ments.” Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 414 (1971) (quoting 5 U.S.C.
$706). We cannot substitute our judgment for that
of the Administrator. Ethyl Corp. v. Environmental
Protection Agency, 541 F.2d 1, 34 (D.C. Cir.) (en banc),
cert. denied, 426 U.S. 941 (1976). We must instead pre-
sume that the Administrator acted lawfully and so con-
clude unless our thorough inspection of the record yields
no discernible rational basis for his action. See Barrier
Industries Inc. v. Eckard, 584 F.2d 1074, 1079 (D.C. Cir.
17a
1978) ; Appalachian Power Co. v. Environmental Pro-
tection Agency, 579 F.2d 846, 851 (4th Cir. 1978). The
Administrator must give reasoned consideration to the
issues before him and reach a result which rationally
flows from this consideration. If he does so, and pre-
sents that rational basis in his decision, then his decision
is not arbitrary and capricious. National Association of
Food Chains, Inc. v. ICC, 585 F.2d 1808, 1314 (D.C.
Cir. 1978) (per curiam) ; Greater Boston Television Corp.
v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied,
403 U.S. 923 (1971).
Third, aware of the technical expertise and need for
flexibility of administrative agencies, courts typically de-
fer to a nearly contemporaneous construction of a statute
by an agency charged with administering it. See Inter-
national Brotherhood of Teamsters v. Daniel, 99 S.Ct.
790, 800 n.20 (1979); United States v. National Asso-
ciation of Securities Dealers, 422 U.S. 694, 719 (1975).
Applying this principle the Supreme Court has held that
the EPA’s interpretation of the Clean Air Act is en-
titled to considerable respect. Union Electric Co. v.
Environmental Protection Agency, 427 U.S. 246, 256
(1978); Train v. Natural Resources Defense Council,
Inc., 421 U.S. 60, 75 (1975). “The construction of a
statute by those charged with its execution should be
followed unless there are compelling indications that it is
wrong.” Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 381 (1967); accord, Beal v. Doe, 482 U.S. 488
(1977) ; United States v. Burlington & Missouri River
Railroad Co., 98 U.S. (8 Otto) 334, 341 (1879). For
us to conclude that the Administrator misconstrued sec-
tion 209 petitioners must show by clear and convincing
evidence that his construction is unreasonable.
Thus mindful of our restricted role, we turn to con-
sider petitioners’ claims. Petitioners posit five basic ques-
tions for decision. First, does section 209(b) empower
the Administrator to consider a waiver of federal pre-
18a °
emption for the CARB’s in-use maintenance regulations?
Second, if it does, what questions must the Administrator
address before granting the waiver? Third, assuming the
Administrator addressed the correct questions, how must
he go about dealing with them? Fourth, if the Adminis-
trator properly addressed the correct questions, 1s there
a discernible rational basis for the decision he reached?
Finally, does the Administrator’s decision to walve violate
constitutional requirements? We examine these questions
in turn.
III
THE SCOPE OF THE WAIVER POWER
The first question for decision is whether section 209
empowers the Administrator to consider a waiver of
federal preemption for California’s in-use maintenance
regulations. Petitioners argue that the in-use mainte-
nance regulations are not aimed at emissions control per-
formance of new motor vehicles but instead purport to
regulate in-use performance and post-sale obligations of
manufacturers. As such, they contend, the regulations in-
trude on the pervasive federal regulatory scheme em-
bodied in section 207, 42 U.S.C. § 7541 (Supp. I 1977),
and are not subject to waiver under subsection (b) of
section 209. Petitioners acknowledge that absent some
provision for waiver the regulations are preempted by
subsection (a) of section 209. They thereby avoid any
explicit suggestion that section 207 alone effects a pre-
emption of the CARB’s in-use maintenance regulations
and exclusively rely on a theory that subsection (b)’s
waiver power is circumscribed by section 207.
The Administrator rejected this claim on the ground
that the only relevant preemption provision is the ex-
press terms of subsection (a) and that whatever is pre-
empted therein is subject to waiver under subsection (b).
We agree.
19a
Nothing in section 209 supports petitioners’ one-way
approach to waiver of federal preemption for California.
Subsection (b) provides that unless the Administrator
makes certain findings he must “waive application of
this section” to California. 42 U.S.C. $ 7548(b) (1)
(Supp. I 1977) (emphasis added), reprinted in note 1
supra. The underscored phrase has no conceivable mean-
ing other than to refer to subsection (a).’® Subsection
(a) forbids any state from “adopt[ing] ,or attempt[ing]
to enforce” standards relating to emissions from new
motor vehicles, and from imposing any requirements re-
lating to same as a “condition precedent” to the initial
retail sale of motor vehicles. Jd. § 7543(a). California’s
in-use maintenance regulations are attempts to enforce
California’s emission standards, and compliance with the
regulations is a condition precedent to the initial retail
sale of motor vehicles in California. The in-use main-
tenance regulations are, therefore, preempted by sub-
section (a). Subsection (b) authorizes the Administra-
tor to waive application of subsection (a) for California;
it contains no suggestion that the scope of this authority
® Section 209 contains a subsection (c) and subsection (qd).
See note 1 supra. Subsection (c) preempts states from cer-
tifying automotive parts, 42 U.S.C. § 7543(c) (Supp. I 1977),
which is part of Congress’ effort to lessen the anticompetitive
consequences of the warranty obligations, see H.R. Rep. No.
294, 95th Cong., Ist Sess. 293-94 (1977). By its own terms
subsection (c) does not apply to California. If anything, this
tends to belie petitioners’ claims that Congress did not intend
California to regulate in the post-sale warranty area as an
incident to its power to adopt and enforce its own emission
standards. Subsection (d) makes clear that the preemption
provision is not intended to preempt state regulation other
than as expressed in subsection (a). 42 U.S.C. § 7548(d)
(Supp. I 1977). This too has consequences for petitioners’
argument. Petitioners suggest that the in-use maintenance
regulations are not aimed at controlling emissions from new
motor vehicles, but if this is so (and we hold it is not), then
California need not even seek a waiver because subsection
(d) preserves the field of regulation of old motor vehicles to
state control ad initio.
20a
is something other than that defined by subsection
(a). Hence the Administrator is empowered to waive
federal preemption for California’s in-use maintenance
regulations.
The plain meaning of the statute indicates that Con-
gress intended to make the waiver power coextensive
with the preemption provision. Petitioners’ efforts to re-
duce the phrase “of this section” to a truism would, if
successful, render the California waiver provision either
meaningless or inffectual.
First, if only the pervasiveness of section 207’s regu-
lation of in-use performance is sufficient to restrict
the Administrator’s waiver authority, there is no rea-
son why on the same reasoning a comparable limi-
tation could not be found in section 202’s pervasive reg-
ulation of national motor vehicle emission standards or
section 206’s pervasive regulation of the federal certifica-
tion process. Sections 202, 206 and 207 are all integral
parts of a comprehensive federal program; all three are
equally treated in section 209(a). Yet were the Ad-
ministrator to regard sections 202 and 206 as petitioners
urge him to regard section 207, he would be powerless
to consider waiving federal preemption for California's
emission standards and certification process. This lack
of power would render the waiver provision—and indeed
the express preemption provision—mere surplusage.”° It
20 Petitioners’ argument about section 207 circumscribing
the waiver power avoids, as noted, any direct suggestion that
section 207 alone achieves an implied preemption of the in-
use maintenance regulations. The argument, however, can
fairly be characterized as an implied preemption claim in
masquerade, and indeed the Administrator and the State of
California understandably interpreted it as such in their
submissions to this court. See Br. for Respondents at 29-32;
Br. for Intervenors at 25-34. The obstacles facing a straight-
forward implied preemption claim are formidable. First,
there being an express preemption provision that clearly
covers the challenged regulations, no need exists to turn to a
theory of implication. Cf. City of Burbank v. Lockheed Air
2la
is axiomatic that a statute must be construed to avoid
that result so that no provision will be inperative or
superfluous. See United States v. Menasche, 348 US.
528 (1955).
Second, if instead petitioners divine the limit on the
waiver authority from section 207’s particular area of
regulation—in-use performance—then their argument is
that Congress did not intend California to have any in-
terest in emissions control once new motor vehicles leave
the assembly line. Certainly section 209 makes no distinc-
tion among different types of in-use performance regula-
tion which operate as enforcement procedures and condi-
tions precedent.*! Thus on petitioners’ reading the statute
permits California to establish emission standards and
certification procedures, but forbids it from ensuring that
the standards are effective once the motor vehicle leaves
the showroom. Yet the only time that a new motor ve-
hicle is capable of polluting the environment is when it
Terminal, Inc., 411 U.S. 624, 633 (1977) (examining implied
preemption only after noting absence of express provision).
- Second, the burden of demonstrating preclusion of state regu-
lation by implication from federal regulation is a heavy one,
see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.
132, 146-47 (1963), and cannot be met by a mere showing of
“the comprehensive character” of the federal scheme, see New
York Dept. of Social Services v. Dublino, 413 U.S. 405, 415
(1973). Third, that burden is rendered ever more difficult
here because section 116 of the Clean Air Act lists those pro-
visions of the statute which Congress intended to reserve for
exclusive federal regulation, and section 207 is not among
them. 42 U.S.C. § 7416 (Supp. I 1977).
Section 116 is not germane to our inquiry because it does
list section 209 among those provisions preempting state regu-
lation. The cases on implied preemption are relevant only in
bolstering our conclusion that subsection (b) contains no im-
plied restrictions on the Administrator’s power to consider
waiver requests.
21 See note 19 supra.
22a
is out on the road. The purpose of the Clean Air Act is
to reach precisely that kind of pollution. Our duty is
to “favor an interpretation wich would render the statu-
tory design effective in terms of the policies behind its
enactment and to avoid an interpretation which would
make such policies more difficult of fulfillment, particu-
larly where, as here, that interpretation is consistent
with the plain language of the statute.” National Petro-
leum Refiners Association v. FTC, 482 F.2d 672, 689
(D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974).
The legislative history of section 209 supports the
Administrator’s interpretation that the waiver provision
is coextensive with the preemption provision, thereby per-
mitting the Administrator to consider waiving preemp-
tion of California’s entire program of emissions control.”
No federal statute purported to regulate emissions from
motor vehicles until 1965, when Congress enacted The
Motor Vehicle Air Pollution Control Act, section 202 of
which authorized the Secretary of Health, Education, and
Welfare to prescribe emission standards.” Although signs
appear in the legislative history that this enactment was
intended to enhance uniformity in national efforts at
22 Petitioners complain that the Administrator cites no leg-
islative history to support his use of the waiver power to
permit the California in-use maintenance regulation. It is,
however, the petitioners who bear the burden of demonstrat-
ing that the Administrator’s interpretation of section 209 is
unreasonable. It is true that the legislative history of the
waiver provision contains no direct reference to the issue of
waiving in-use maintenance regulations, but legislative his-
tory is not required to cover every aspect of a statute’s appli-
cation. As we show, there are overwhelming indications in
the legislative history that Congress intended California to
enjoy the broadest possible discretion in selecting a complete
program of emissions control, and not the slightest indication
that it intended section 207 to qualify that discretion.
23 Pub. L. No. 89-272, § 202, 79 Stat. 992 (1965).
ith ghia
23a
pollution control,” the statute contained no express pre-
emption provision. Consequently States generally felt free
to adopt regulations in the field, and several states fol-
lowed up the federal statute with regul
their own.”® gulatory schemes of
The states acting after 1965 were Johnnies-come-lately
to the field compared to California, which had undertaken
Statewide efforts as early as 1958.°° Congress’ entry into
the field and the heightened state activity after 1965
*4 See, e.g., S. Rep. No. 192, 89th Con
, . ; ; g., lst Sess. 5-
ba H.R. Rep. No. 899, 89th Cong., Ist Sess. 5 pe A
ee on H.R. 463 Before the Subcomm. on Public Health
elfare of the House Comm. on Interstate & Foreign Com-
mer
Payer 89th Cong., Ist Sess. 281 (1965) (statement of Mr.
*5 See generally Currie, Motor Vehicle Ai ion:
Authority and Federal Preemption, 68 Mich. or a on
(1971). As Professor Currie notes, these efforts were partly
ya by the Supreme Court’s decision in Huron Port-
and Cement Co. v. City of Detroit, 362 U.S. 440 (1960),
which rejected an implied preempti ’
regulation of air pollution. Pp ption claim based on federal
° California’s interest in pollution co
ntrol from m i-
Pas dates to 1946. Stevens, Air Pollution and a
ro em: Responses to Felt Necessities, 22 Hastings L.J. 661
we ( bien Comprehensive statewide efforts began in 1957,
piers bend aed incor — Pan apace control boards the
\ prescribe standards for emission control i
digg ping Pe 7 of unapproved devices. otnary
a p. , (former Cal. Health & S ;
§ 24263.7). This was followed b j a
\ ( y the authorizati
oe of statewide standards, 1959 sity oA Me
200 (former Cal, Health & Safety Code § 426.5), anda cer.
ure, al. Stats., chap. 23, $1
an ie ee eek 24386). The Senate Noho
; or | > Air Pollution Control Act ob
California “leads in the establishment of Preset omar
lation of automotive pollutan Foc} ”
89th Cong., 1st Sess. § (1968 ‘ emissions.” S. Rep. No. 192,
24a
raised the spectre of an anarchic patchwork of federal
and state regulatory programs, a prospect which threat-
ened to create nightmares for the manufacturers.** Act-
ing on this concern, Congress in 1967 expressed its in-
tent to occupy the regulatory role over emissions control
to the exclusion of all the states—all, that is, except
California.
As originally introduced in the Senate the Air Quality
Act of 1967 did not contain an express preemption
provision,“* though the topic of preemptien quickly
arose and immediately became the object of intense de-
bate.2” The debate sharpened the differences between the
states, which wanted to preserve their traditional role
in regulating motor vehicles, and the manufacturers,
which wanted to avoid the economic disruption latent in
having to meet fifty-one separate sets of emissions con-
trol requirements. The bill that emerged from the Senate
Committee contained a compromise: Subsection (a) pre-
empted state programs of emissions control for new motor
vehicles; subsection (b) provided an exception for Cali-
fornia if that State determined that its standards would
be “more stringent” than applicable federal standards.®
The Senate Committee explained:
On the question of preemption, representatives of
the State of California were clearly opposed to dis-
placing the State’s right to set more stringent stand-
27 This prospect never materialized. The federal govern-
ment did not make its first standards applicable until the 1968 —
model year. 45 C.F.R. § 85.1-.87 (1967). By that time, Con-
gress had already enacted the express preemption provision.
28 See Hearings on Automotive Air Pollution Before the
Subcomm. on Air and Water Pollution of the Senate Comm.
on Public Works, 90th Cong., Ist Sess. 8 (1967).
2® Jd. at 13-14 (statement of W. Donn); id. at 107 (state-
ment of D. Coston); id. at 403 (statement of T. Mann).
30S. Rep. No. 403, 90th Cong., Ist Sess. 81 (1967).
25a
ards to meet peculiar local conditions. The auto in-
dustry conversely was adamant that the nature of
their manufacturing mechanism required a single
national standard in order to eliminate undue eco-
nomic strain on the industry.
The committee has taken cognizance of both of
these points of view. Senator Murphy convinced the
committee that California’s unique problems and
pioneering efforts justified a waiver of the pre-
emption section to the State of California.
S. Rep. No. 403, 90th Cong., 1st Sess. 338 (1967) (em-
phasis added).
Thus the Committee that formulated the waiver pro-
vision understood the costs involved in making an excep-
tion for California and decided to recommend that these
costs be absorbed by allowing a waiver not of part of the
preemption provision, but of the entire subsection (a).
According to the Committee, the advantages of the Cali-
fornia exception included the benefits for the Nation to be
derived from permitting California to continue its experi-
ments in the field of emissions control—benefits the Com-
mittee recognized might “require new control systems
and design,” id.—and the benefits for the people of Cali-
fornia to be derived from letting that State improve on
“its already excellent program” of emissions control, id.
(emphasis added). There is no intimation in the Senate
Committee report that the waiver provision was de-
signed to permit California to adopt only a portion of
such a program. The House accepted the Senate version.®
31 Not without a fight. See text accompanying note 51 infra.
The battle over the waiver provision in the House did not
turn on the scope of the waiver power, however, and the de-
bate on the floor of the House indicates that the members
shared the Senate’s conviction that the waiver provision was
intended to permit California to adopt an entire program of
emissions control. See, e.g., 1138 Cong. Rec. 30950 (1967)
26a
Congress had an opportunity to restrict the waiver
provision in making the 1977 amendments, and it instead
elected to expand California’s flexibility to adopt a com-
plete program of motor vehicle emissions control. Under
the 1977 amendments, California need only determine that
its standards will be “in the aggregate, at least as pro-
tective of public health and welfare than applicable Fed-
eral standards,” rather than the “more stringent” stand-
ard contained in the 1967 Act.** This change originated
in the House. The House Committee Report explained:
(remarks of Rep. Springer); id. at 30948 (remarks of Rep.
Staggers).
When the Senate considered the conference version of the
Air Quality Act of 1967, only one comment was directed at
the waiver provision, and this by its original sponsor:
It was concern for allowing California to continue its
pioneering efforts in the field of air pollution that led to
the amendment [on waiver]... .
. .. I am firmly convinced that the United States as
a whole will benefit by allowing California to continue
setting its own more advanced standards for control of
motor vehicle emissions. In a sense, our State will act
as a testing agent for various types of controls and the
country as a whole will be the beneficiary of this re-
search... . Our State intends to continue its efforts to
eliminate air pollution without letup and asks only that
no roadblocks be put in its path.
Id. at 32478 (remarks of Sen. Murphy).
82 Clean Air Act Amendments of 1977, Pub. L. No. 95-95,
§ 207, 91 Stat. 755. The intent of the 1977 amendment was
to accommodate California’s particular concern with oxides
of nitrogen, which the State regards as a more serious threat
to public health and welfare than carbon monoxide. Califor-
nia was eager to establish oxides of nitrogen standards con-
siderably higher than applicable federal standards, but tech-
nological developments posed the possibility that emissicn
control devices could not be constructed to meet both the high
California oxides of nitrogen standard and the high federal
27a
The Comrnittee amendment is intended to ratify and
strengthen the California waiver provision and to
affirm the underlying intent of that provision, i.e.,
to afford California the broadest possible discretion
in selecting the best means to protect the health of
its citizens and the public welfare.
H.R. Rep. No. 294, 95th Cong., 1st Sess. 301-02 (1977)
(emphasis added). This language appears in the same
House Report that elaborately describes section 207’s regu-
latory format. The Report is barren of an indication
that Congress intended to confine California’s discre-
tion to the adoption of emission standards, certification
processes, and test procedures.**
Since the inception of the federal government’s emis-
sions control program it has drawn heavily on the Cali-
fornia experience to fashion and to improve the nationa!
efforts at emissions control.** The history of congressional
consideration of the California waiver provision, from its
original enactment up through 1977, indicates that Con-
carbon monoxide standard. Under the 1967 waiver provision,
each California standard had to be “more stringent” than
the corresponding federal standard. Hence Congress amended
the waiver provision to require only that the California stand-
ards in the aggregate were at least as protective of public
health and welfare as applicable federal standards. This per-
mits the State to maintain a high standard for oxides of nitro-
gen but a standard for carbon monoxide somewhat lower than
the federal standard.
33 See note 19 supra.
%* The first federal emission standards were largely bor-
rowed from California, for example. See S. Rep. No. 403, 90th
Cong., Ist Sess. 32 (1967) ; Willens, The Regulation of Motor
Vehicle Emissions, 3 Nat. Res. Lavryer 120, 123-24 (1970).
The 1977 standards also drew heavily on the California ex-
perience in the ten years since enactment of the first waiver
provision. See 123 Cong. Rec. H4852 (daily ed. May 21,
1977) ; id. at H5061 (daily ed. May 25, 1977).
28a
gress intended the State to continue and expand its
pioneering efforts at adopting and enforcing motor ve-
hicle emission standards different from and in large
measure more advanced than the corresponding federal
program; in short, to act as a kind of laboratory for in-
novation. Had Congress wanted to limit California’s role
to forbid its adoption of any program comparable to the
federal scheme in section 207, it could have easily done so.
It did not. For a court to do so despite the absence of such
an indication would only frustrate the congressional in-
tent.
We therefore are unable to find compelling indications
in the text of the statute, in its legislative history, or in
its underlying intent that the Administrator’s interpre-
tation of the waiver provision is wrong. We accordingly
hold that section 209(b) empowers the Administrator to
consider a waiver request for in-use maintenance regula-
tions.
IV
WAIVER CONSIDERATIONS
The second question for decision requires us to deter-
mine the substantive matters the Administrator must
address in considering a request for a waiver of in-use
maintenance regulations. It is the petitioners’ view that
the Administrator neglected to address certain statutor-
ily-prescribed matters, and, in addition, that he improp-
erly declined to examine the constitutional and antitrust
implications of the in-use maintenance regulations. The
Administrator contends that he addressed all questions
the statute requires him to address, and that the con-
stitutional and anti-trust implications of the CARB reg-
ulations are beyond the scope of his review in a waiver
proceeding. We essentially agree with the Administra-
tor’s position.
29a
A. Section 209(b) Considerations
As noted, subsection(b) requires the Administrator to
waive application of subsection (a) if California deter-
mines that its standards are at least as protective of the
public health and welfare as applicable federal standards.
A grant of the waiver is not necessarily automatic, how-
ever. Subsection (b) says that the Administrator shall
not grant the waiver request if he finds (1) that Cali-
fornia’s determination of protectiveness was arbitrary
and capricious; (2) that California does not need the
standards to meet compelling and extraordinary circum-
stances; and (8) that the standards and accompanying
enforcement procedures are inconsistent with section 202
(a) of the Clean Air Act, which as indicated requires the
Administrator’s standards to be technologically feasible.
The parties agree that if the Administrator makes any
one of these findings with respect to a waiver request
involving California “standards” he must deny the re-
quest. In his waiver decision, however, the Administrator
characterized the in-use maintenance regulations as “ac-
companying enforcement procedures” rather than as
“standards.” According to him, the word “standards”
connotes a numerical value setting the quantitative level
of permitted emissions of pollutants by a new motor ve-
hicle. Thus for example a regulation limiting motor ve-
hicle emissions of carbon monoxide to 3.4 grams per mile
is in his view a “standard.”
The Administrator says that “accompanying enforce-
ment procedures,” on the other hand, are criteria de-
signed to determine compliance with applicable standards,
and that the in-use maintenance regulations, being rele-
vant to the manufacturers’ ability to produce motor
vehicles which will comply with the standards for their
useful life, are properly classified as enforcement meas-
ures. The Administrator notes that section 209(b) re-
fers to accompanying enforcement procedures only in
the context of consistency with section 202(a). On this
30a
basis he concludes that in a waiver proceeding involving
enforcement procedures tied to standards for which a
waiver has already been granted the only questions he
must address are (1) whether the enforcement procedures
are so lax that they threaten the validity of California’s
determination that its standards are as protective of
public health and welfare as applicable federal standards
and (2) whether the enforcement procedures are con-
sistent with section 202(a).
Petitioners insist that the in-use maintenance regula-
tions are “standards.” They say that a “standard” re-
fers to any criteria with which the manufacturers must
comply. Alternatively, they contend that however the in-
use maintenance regulations are labeled, the Adminis-
trator must address each of the three statutory questions
in every waiver proceeding. Thus they believe that the
Administrator must deny the waiver if he finds that Cal-
ifornia acted unreasonably in concluding that the in-use
maintenance regulations were as protective of the public
health and welfare as federal regulations, or that the in-
use maintenance regulations are not needed to meet com-
pelling and extraordinary local conditions.
We need not resolve here the meaning of the word
“standards” as it is used in every section of the Clean
Air Act; our inquiry is confined to its use in section
209.*° In that setting we believe that the Administrator
85 For this reason we find unpersuasive petitioners’ sug-
gestion that section 302(k) of the Clean Air Act, 42 U.S.C.
§ 7602(k) (Supp. I 1977), which contains a definition of
“emission standards,” controls our examination of the mean-
ing of the word “‘standards” in section 209. Section 302(k)’s
definition was not enacted until ten years after the original
waiver provision, and it was developed in the context of
regulating emissions from stationary sources. The Conference
Report on the 1977 amendments, which explained many of the
differences between the Senate and House versions of the 1977
bill, strongly intimates that the definition applies only in the
stationary source context. See H.R. Rep. No. 564, 95th Cong.,
3la
correctly classified the in-use maintenance regulations as
“accompanying enforcement procedures” rather than as
“standards.”
Petitioners’ definition would eliminate the concept of
enforcement regulations as something distinct from a
standard. Congress, however, clearly intended to make
such a distinction in section 209. As noted, subsection (b)
refers to “standards” and to “accompanying enforcement
procedures.” Subsection (a) provides that no state shall
“adopt or attempt to enforce standards.” These refer-
ences to efforts at enforcement would have been unneces-
sary if Congress intended that “standards” meant any
regulation relating to motor vehicle emissions control.
The legislative history also indicates that Congress in-
tended the word “standards” in section 209 to mean
quantitative levels of emissions rather than regulations
involving certification or in-use maintenance restrictions.
The Senate Report on the Air Quality Act of 1967, dis-
cussing the preemption provision, mentions “standards”
for hydrocarbons, nitrogen oxides, and carbon monoxide in
obvious reference to the numerical limitations on those
pollutants. S. Rep. No. 408, 90th Cong., 1st Sess. 32
(1967). In describing the changes made in the waiver
provision in 1977, the House Report explains why dif-
ferent quantitative “standards” might be necessary for
California. H.R. Rep. No. 294, 95th Cong., 1st Sess. 302
(1977). This same report refers to the Administrator’s
power to review California’s protectiveness determination,
a determination which under the statute pertains to
“standards,” as limited to determining whether “the
State acted unreasonably in evaluating the relative risks
Ist Sess. 172 (1977) (Conference Report). Moreover, as we
explain, classifying the in-use maintenance regulations as
“standards” would make it virtually impossible for California
to enact such regulations, and this in turn would frustrate
Congress’ intent to provide California with the broadest
possible discretion in selecting the best means for protecting
the public health and welfare.
32a
of various pollutants in light of air quality, topography,
photochemistry and climate in the State.” Jd. Numeri-
cal values on allowable emissions allocate the relative risks
of pollutants; regulations on allowable maintenance do
not.
The Administrator has consistently made a distinc-
tion between standards and accompanying enforcement
procedures, confining the former to regulations on quan-
titative levels of emissions.** In construing the word
“standards” in another section of the Clean Air Act, the
Supreme Court defined the term as “a quantitative ‘level’
to be attained by the use of ‘techniques,’ ‘controls,’ and
‘technology.’”’ Adamo Wrecking Co. v. United States,
434 U.S. 275, 290-91 (1978). In light of these consider-
ations, we cannot conclude that the Administrator’s defini-
tion is unreasonable.
We also agree with the Administrator that the distinc-
tion between standards and accompanyinging enforcement
procedures is a meaningful one in a waiver proceeding,
at least when the latter relate to standards for which
a waiver has already been granted. The statute itself
only refers to enforcement procedures in connection with
the consistency finding. Congress was certainly capable
of adding the phrase “accompanying enforcement pro-
86 Petitioners claim otherwise, contending that the Adminis-
trator in fact considered whether the in-use maintenance
regulations were as protective of public health and welfare
as applicable federal standards, an inquiry inappropriate
under the Administrator’s analysis here. Petitioners misin-
terpret what the Administrator did, however. He did not
examine whether the in-use maintenance regulations were
themselves as protective of public health and welfare as
applicable federal standards. Rather he explored whether the
procedures had a negative effect on the protectiveness of the
California standards for which a waiver had already been
granted. See 43 Fed. Reg. 32188 (1978), reprinted in J.A. at
56. This inquiry is perfectly consistent with the Adminis-
trator’s past practice and his position in this court.
33a
cedures” wherever the word “standards” appeared if it
desired the statutory findings to apply to both. We see no
reason to assume that its failure to do so is attributable
to sloppy draftsmanship, particularly in light of indica-
tions in the legislative history that the failure was a de-
liberate one.*"
Moreover, the differing treatment accorded standards
and enforcement procedures in subsection (b) makes sense,
and is consistent with the congressional intent to pro-
vide California with the broadest possible discretion in
adopting and attempting to enforce emissions standards.
The protectiveness determination California must make to
request a waiver and the rn ed finding the Administrator
must make to deny one are both logically tied to air
quality—that is, to conditions in the air which require
the regulation of emissions in the first instance. These
considerations are prerequisites to California’s establish-
ment of its own program of emissions control. The only
species of emissions control regulation which directly ad-
dresses air quality is a standard. Only a standard de-
scribes pollutants and allocates the various risks thereof.
An enforcement procedure, by contrast, does not directly
relate to air quality. A certification process without
standards cannot protect public health; a particular spark
plug change can never be justified by conditions in the en-
vironment it does not alone directly affect. If the Admin-
istrator was entitled to deny a waiver upon a finding that
California did not need a particular enforcement pro-
cedure to meet compelling and extraordinary conditions
in California, it is unlikely that a contested waiver re-
quest would ever be granted. Of course the absence or in-
87 The Senate Report on the original waiver provision, for
example, explained that the only ground on which a waiver
for accompanying enforcement procedures could be denied
was if the procedures “are in conflict with the intent of Sec-
vee 202(a).” S. Rep. No. 408, 90th Cong., 1st Sess. 33-34
1967).
34a
effectiveness of an enforcement program might endanger
the ability of the standards to accomplish the levels of
emissions they seek, and thus an indirect relationship
exists between enforcement procedures and the public
health and welfare. Yet the relationship turns on the im-
pact of the enforcement procedures on the effectiveness of
the standards. Similarly, the imposition of enforcement
procedures that cannot be met in light of technological de-
velopments affects the manufacturers’ ability to certify
motor vehicles that will control pollution for their useful
lives. It is therefore logical to condition California’s flex-
ibility to adopt enforcement procedures on the manufac-
turers’ capacity to comply with the regulations the State
prescribes.
The Administrator has consistently treated standards
differently than enforcement procedures in waiver pro-
ceedings, and his decision to do so here thus comes as no
surprise.** This differing treatment antedated the 1977
amendments, and it is noteworthy that Congress expressed
general approval of the Administrator’s subsection (b)
decisions in revising the waiver power. In light of these
factors, we are unable to conclude that the Administrator
acted unreasonably in limiting the considerations he must
address. We accordingly hold that when considering a re-
quest for waiver of in-use maintenance regulations per-
taining to standards for which a waiver has already been
granted the Administrator is not required to consider
whether California reasonably determined that the regu-
lations themselves are as protective of public health and
welfare as applicable federal standards or whether the
regulations themselves are needed to meet compelling and
extraordinary conditions in California. His failure to
58 See, e.g., 43 Fed. Reg. 9244, 9345 (1978) ; 42 Fed. Reg.
3192, 3194 (1977) ; 41 Fed. Reg. 44209 (1977) ; 86 Fed. Reg.
17458 (1971).
3° H.R. Rep. No. 294, 95th Cong., 1st Sess. 301 (1977).
35a
consider the factors here, therefore, is no basis for setting
aside his decision.*®
B. Constitutional Considerations
Petitioners complain that the in-use maintenance regu-
lations unconstitutionally burden their right to communi-
cate with vehicle purchasers. They also maintain that
the regulations alter statutory defenses and impose liabil-
ity on manufacturers without fault in violation of the
due process clause. We address the substance of these
arguments at a later point, see Part VIII infra, and for
now are concerned only with petitioners’ contention that
the Administrator had an obligation to consider these
contentions in considering whether to grant the waiver.
It is petitioners’ position that the general principles
of administrative law and procedure obligate the Adminis-
trator to obey the Constitution and to be mindful of
constitutional goals. According to petitioners, these ob-
40 Petitioners suggest that the Administrator was obligated
to conduct a cost-effectiveness study on the in-use mainte-
nance regulations as part of his examination of the “cost of
compliance.” We disagree. As we note below, the “cost of
compliance” consideration relates to the timing of standards
and procedures. Here the Administrator noted on the record
that the manufacturers did not challenge “[t]he CARB esti-
mat[e] that the regulations would... resul[t] in a net cost
benefit.” 43 Fed. Reg. 32184 (1978), reprinted in J.A. at 57.
This is sufficient for the “cost of compliance” inquiry. In
Portland Cement Co. v. Ruckleshaus, 486 F.2d 375, 394 (D.C.
Cir. 1973), cert. denied, 417 U.S. 921 (1974), we rejected the
cost-effectiveness requirement with these words:
However desirable in the abstract, such a [study] re-
quirement would conflict with the specific time con-
straints imposed on the Administrator. The difficulty,
if not the impossibility, of quantifying the benefit of
ambient air conditions, further miltates against the im-
position of such an imperative on the agency.
This reasoning applies here as well.
36a
ligations require the Administrator to pass on consti-
tutionally-based challenges to the CARB regulations in
deciding whether to waive federal preemption for them.
As noted, the Administrator regards these constitutional
issues as beyond the scope of his review.
We think the Administrator was entitled to refuse to
pass on petitioners’ constitutional claims.** That he like
every other administrative officer owes allegiance to the
Constitution does not mean that he is required to issue
rulings of constitutional dimension. Resolving questions
of constitutional scope is the most important of judicial
functions, “one that even the judiciary is reluctant to
exercise.” Panitz v. District of Columbia, 112 F.2d 39,
41 (D.C. Cir. 1940). Here the Administrator operates in
a narrowly circumscribed proceeding requiring no broad
policy judgments on constitutionally sensitive matters.
Nothing in section 209 requires him to consider the con-
stitutional ramifications of the regulations for which
California requests a waiver. Cf. 47 U.S.C. § 326 (1976)
(“no regulation or condition shall be promulgated or
fixed by the [Federal Communications] Commission which
shall interfere with the right of free speech’). Nor need
he as an incident to his regulatory authority determine
the constitutional applicability of the in-use regulations to
particular individuals or circumstances. Compare Eisen
v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied,
400 U.S. 841 (1970) with Plano v. Baker, 504 F.2d 595
(2d Cir. 1974).
It is generally considered that the constitutionality of
Congressional enactments is beyond the jurisdiction of ad-
ministrative agencies. Weinberger v. Salfi, 422 U.S. 749,
765 (1975); Johnson v. Robinson, 415 U.S. 361, 368
41 We need not decide here whether the Administrator is
authorized to deny a waiver on the ground that the proposed
Cailfornia regulations are on their face violative of the Con-
stitution.
37a
(1974) ; L. Jaffe, Judicial Control of Administrative Ac-
tion 438 (ab. ed. 1965). Although petitioners’ objections
are not directed at the Clean Air Act,*? the rationale un-
derlying the cases dealing with administrative power to
consider challenges to statutes is useful in this context as
well. The waiver proceeding produces a forum ill-suited
to the resolution of constitutional claims. While nothing
in section 209 categorically forbids the Administrator from
listening to constitutionally-based challenges, petitioners
are assured through a petition for review here that their
contentions will get a hearing. Exhaustion of consti-
tutional claims may on occasion be required by statute,
see Weinberger v. Salfi, supra, or by principles of admin-
istrative procedure if there is a possibility that the agency
will decide in the litigant’s favor on nonconstitutional
grounds, see Public Utilities Commission v. United States,
355 U.S. 534, 539-40 (1958). But when, as here, peti-
tioners have exhausted their administrative remedies, a
failure to have raised the constitutional claims before the
Administrator would not bar them from asserting the
claims to this court.
We conclude that it was not error for the Administra-
tor to decline to examine petitioners’ constitutional argu-
ments against the in-use maintenance regulations.
*2 This is only partly true. As noted, section 207 gives the
Administrator the power to issue regulations governing in-use
maintenance. 42 U.S.C. § 7541(c) (Supp. I 1977). The Ad-
ministrator has not promulgated such regulations, and hence
any constitutionally-based attack on section 207 and its
offspring would be premature. Yet were the Administrator
to pass on the constitutionality of the CARB’s in-use mainte-
nance regulations, he would necessarily be passing on the
constitutionality of the power Congress delegated to him in
section 207. Thus if the Administrator accepted petitioners’
invitation, he would be indirectly violating the principle that
administrative agencies generally have no jurisdiction to con-
sider the constitutionality of their organic statutes, supra.
Shey Petitioners additionally complain that the Administrator
did not provide a “meaningful explanation” of his reasons for
38a
C. Antitrust Considerations
Petitioners ** insist that the in-use maintenance regula-
tions are anticompetitive because they are designed to
reduce the business available to the automotive parts and
services industry and because they allegedly create a fi-
nancial and psychological tie-in (via the warranty pro-
visions) between vehicle purchasers and franchised deal-
erships in the performance of in-use maintenance. They
contend that the Administrator has a duty arising out of
the Clean Air Act and general principles of administra-
tive law to consider these claims of anticompetitiveness,
and that his decision is unlawful owing to his failure to
abide by that duty. As noted, the Administrator held
that the antitrust implications of the in-use maintenance
regulations were beyond the scope of his review. He did
note, however, that the regulations were consistent with
section 207, which contains expressions of congressional
concern about certain potentially anticompetitive prac-
tices.*5
ing on the constitutionally-based claims. This claim
sy ielaeenne The Administrator stated that the cod
tional arguments “are beyond the scope of my review, an e
waiver hearing is not a proper forum in which to raise them.
43 Fed. Reg. 32185 (1978), reprinted in J.A. at 58 (citation
omitted). Although succinct, this statement certainly ie
municates the basis for the Administrator’s decision. m
Belco Petroleum Corp. v. FERC, 589 F.2d 680, 686 n.6 (D.
Cir. 1978). He was not required to insert an elaborate lega
brief defending his position into the waiver decision.
44 See note 2 supra.
4543 Fed. Reg. 32184 (1978), reprinted in J.A. at 57-58.
The strongest expression of the Administrator's concern ap-
pears in his letter denying a request for reconsideration of
another waiver decision. This letter is part of the record in
these cases. Letter from Douglas Costle to Mark Joelson (No-
vember 1, 1978), reprinted in J.A. at 1853-55.
39a
Although we think the Administrator must be sensitive
to section 207 concerns in approaching a waiver decision,
we agree that he has no duty beyond that to consider
claims of anticompetitiveness in a waiver proceeding. We
base our agreement on three grounds.
First, there is no such thing as a “general duty” on
an administrative agency to make decisions based on fac-
tors other than those Congress expressly or impliedly in-
tended the agency to consider. The general principles of
administrative law and procedure call upon an agency to
give reasoned consideration to all facts and issues rele-
vant to the matter at hand, but the determination of
what is relevant turns in the first instance on analysis of
the express language of the statute involved and the con-
tent given that language by implication from the struc-
ture of the statute, its legislative history, and the gen-
eral course of administrative practice since its enactment.
An administrative agency has no charter apart from the
framework constructed by that analysis to enforce or
otherwise consider whatever suits its or someone else’s
fancy. See generally International Brotherhood of Team-
sters v. Daniel, supra.
Second, there is no express provision in section 209
or elsewhere in the Clean Air Act requiring the Ad-
ministrator to assess general claims of anticompetitive-
ness in his consideration of waiver requests. Section 209
nowhere explicitly refers to anticompetitiveness concerns.
Elsewhere in the statute, section 317, 42 U.S.C. § 7617
(Supp. I 1977), requires the Administrator to prepare an
economic impact statement investigating anticompetitive
concerns before taking certain prescribed actions, but a
_ Section 209 waiver is not included among these actions.“
** Section 317 provides in pertinent part:
Notice of proposed rulemaking; substantial revisions
(a) This section applies to action of the Administrator
in promulgating or revising—
[Continued]
40a
Even if it were, section 317 provides that nothing therein
shall be construed to alter the basis on which any regu-
lation is promulgated, to preclude the Administrator from
carrying out his responsibilities to protect the public
#6 [Continued]
(1) any new source standard of performance un-
der section 7411 of this title,
(2) any regulation under section 7411(d) of this
title,
(3) any regulation under part B of subchapter I
of this chapter (relating to ozone and stratosphere
' protection),
(4) any regulation under part C of subchapter I
of this chapter (relating to prevention of significant
deterioration of air quality),
(5) any regulation establishing emission stand-
ards under section 7521 of this title and any other
regulation promulgated under that section,
(6) any regulation controlling or prohibiting any
fuel or fuel additive under section 7545(c) of this
title, and
(7) any aircraft emission standard under section
7571 of this title.
Nothing in this section shall apply to any standard or
regulation described in paragraphs (1) through (7) of
this subsection unless the notice of proposed rulemaking
in connection with such standard or regulation is pub-
lished in the Federal Register after the date ninety days
after August 7, 1977. In the case of revisions of such
standards or regulations, this section shali apply only to
revisions which the Administrator determines to be sub-
stantial revisions.
Preparation of assessment by Administrator
(b) Before publication of notice of proposed rulemak-
ing with respect to any standard or regulation to which
this section applies, the Administrator shall prepare an
economic impact assessment respecting such standard or
regulation. Such assessment shall be included in the
4la
health and welfare, or to authorize a court to set aside an
action of the Administrator on the ground that he failed
to assess the economic impact of the action. Jd. § 7617(e).
This last particularly signifies Congress’ intent that the
docket required under section 7607(d) (2) of this title
and shall be available to the public as provided in section
7607 (d) (4) of this title. Notice of proposed rulemaking
shall include notice of such availability together with an
explanation of the extent and manner in which the Ad-
ministrator has considered the analysis contained in such
economic impact assessment in proposing the action. The
Administrator shall also provide such an explanation in
his notice of promulgation of any regulation or standard
referred to in subsection (a) of this section. Each such
explanation shall be part of the statements of basis and
purpose required under sections 7607 (d) (3) and 7607 (d)
(6) of this title.
Analysis
(c) Subject to subsection (d) of this section, the as-
sessment required under this section with respect to any
standard or regulation shall contain an analysis of —
(1) the costs of compliance with any such stand-
ard or regulation, including extent to which the costs
of compliance will vary depending on (A) the effec-
tive date of the standard or regulation, and (B) the
development of less expensive, more efficient means
or methods of compliance with the standard or regu-
lation;
(2) the potential inflationary or recessionary ef-
fects of the standard or regulation;
(3) the effects on competition of the standard or
regulation with respect to small business;
(4) the effects of the standard or regulation on
consumer costs; and
(5) the effects of the standard or regulation on
energy use.
Nothing in this section shall be construed to provide that
the analysis of the factors specified in this subsection
affects or alters the factors which the Administrator is
42a
Administrator’s decisions on air quality standards and
related matters be immune from attacks like the one
at bar.
Third, nothing in section 209 or elsewhere in the Clean
Air Act can fairly be read to imply a duty on the Ad-
ministrator to deny a waiver on the basis of the anti-
trust implications of California regulations. Petitioners
profess to find such a duty in the “public health and
welfare” language of sections 209 and 202(a) and in
section 202’s requirement that. the Administrator give
appropriate consideration to the “cost of compliance”
with the standards. The “public health” provision, they
insist, poses a duty comparable to that found in other ad-
ministrative statutes that require agencies to take ac-
required to consider in taking any action referred to in
subsection (a) of this section.
Extensiveness of assessment
(d) The assessment required under this section shall
be as extensive as practicable, in the judgment of the
Administrator taking into account the time and resources
available to the Environmental Protection Agency and
other duties and authorities which the Administrator is
required to carry out under this chapter.
Limitations on construction of section
(e) Nothing in this section shall be construed—
(1) to alter the basis on which a standard or reg-
ulation is promulgated under this chapter;
(2) to preclude the Administrator from carrying
out his responsibility under this chapter to protect
public health and welfare; or
(3) to authorize or require any judicial review of
any such standard or regulation, or any stay or in-
junction of the proposal, promulgation, or effective-
ness of such standard or regulation on the basis of
failure to comply with this section,
42 U.S.C. § 7617 (Supp. I 1977). *
43a
count of the “public interest” in making decisions. The
“cost of compliance” provision, they say, compels ap-
propriate consideration of the “social costs” of pollu-
tion control. We think these contentions stretch the effec-
tive scope of those provisions well beyond their reason-
ably inferrable reach.
As our earlier discussion of the content of the word
“standards” in section 209 intimated, the phrase “public
health and welfare” is directly related to the effects of
pollution on the environment. Congress enacted the Clean
Air Act as an attempt to improve the quality of the air.
This concern with pollution was not confined to its adverse
effects on humans, but extended as well to its impact on
the economy.*? The terms “public health and welfare”
thus encompass economic values, but only to reflect the
economic costs of pollution, not the social costs of pollu-
tion control. This is evident in every context in which
the terms appear. See, e.g., 42 U.S.C. § 7521(a) (Supp.
I 1977) ; id. § 7543(b) ; id. § 7409(b) (2) ; id. § 7571 (a)
(2); id. § 7401; id. § 7403(f) ; id. § 7405 (a); id. $ 7408
(a); wd. $7450. When Congress intended the Adminis-
trator to go beyond the effects of pollution and examine
as well the effects of pollution control it made its intent
apparent. This is strikingly evident in section 317, which
‘7 The House Report on the 1977 amendments nc‘*ed:
The committee recognizes that air pollution causes
significant economic costs to the public by damaging
health and welfare. Such costs include an increased in-
cidence of illness, premature death, increased expendi-
tures for health care and insurance and loss of tax reve-
nues. Additionally, it causes damage to real estate and
crops {and other vegetation), and could result in huge
economic losses for tourist-related industries. While
quantifications of these losses is obviously difficult, some
estimates range as high as $16.1 billion annually (in
1968 dollars).
H.R. Rep. No. 294, 95th Cong., Ist Sess. 34 (1977).
~~ _———_-s -_ -_—— » ——e lh _—_- ee
Aaa
carefully distinguishes between protection of the public
health and welfare and concern with anticompetitiveness.
See id. § 7617(e).
Similarly, there is-no indication that Congress intended
section 202’s “cost of compliance” consideration to em-
body “social costs” of the type petitioners advance. Every
effort at pollution control exacts social costs. Congress,
not the Administrator, made the decision to accept those
costs. Section 202’s “cost of compliance” concern, juxta-
posed as it is with the requirement that the Adminis-
trator provide the requisite lead time to allow techno-
logical developments, refers to the economic costs of motor
vehicle emission standards and accompanying enforce-
ment procedures. See S. Rep. No. 192, 89th Cong., Ist
Sess. 5-8 (1965); H.R. Rep. No. 728, 90th Cong., Ist
Sess. 23 (1967). It relates to the timing of a particular
emission control regulation rather than to its social im-
plications. Congress wanted to avoid undue economic
disruption in the automotive manufacturing industry and
also sought to avoid doubling or tripling the cost of
motor vehicles to purchasers. It therefore requires that
emission regulations be technologically feasible within
economic parameters. Therein lies the intent of the “cost
of compliance” requirement.
The cases petitioners cite in which the Supreme Court
has imposed a duty to consider anticompetitive effects
under general statutory directives to protect the “public
interest” are inapposite here. Indeed they confirm our
view that the general terms of a statute derive their
content from the context in which the terms appear.
The Supreme Court’s decision in Gulf States Utilities
Co. v. Federal Power Commission, 411 U.S. 747 (1973),
is instructive. That case involved section 204 of the
Federal Power Act, which provides that no public utility
_ shall issue a security “unless and until, and then only to
45a
the extent that” the Federal Power Commission approved.
16 U.S.C. § 824e(a).** The Commission is authorized to
approve an issue “only ‘if it finds that such issue...
is for some lawful object, within the corporate purposes
of the applicant and compatible with the public inter-
est.’” 411 U.S. at 756 (quoting 16 U.S.C. § 824¢(a) )
(emphasis in original). Stressing this language, the Su-
preme Court rejected the Commission’s view that it need
not consider anticompetitive implications. The Federal
Power Act, the Court explained, “was passed in the con-
text of, and in response to, great concentrations of eco-
nomic and even political power vested in public trusts,
and the absence of antitrust enforcement to restrain the
growth and practices of public utility holding companies.”
Id. at 758. The Commission’s power was correspondingly
“broad and impressive” and was intended to “curb abu-
sive practices” and to “provide effective federal regula-
tion of the expanding business” of selling electric power.
Id. at 756, 758.
Likewise, in Federal Maritime Commission v. Aktie-
bolaget Svenska Amerika Linien, 390 U.S. 238 (1968),
another case on which petitioners chiefly rely, the Su-
preme Court approved the Federal Maritime Commis-
sion’s reliance on antitrust policy to regulate shipping
conference agreements under a public interest standard
only after finding that reliance appropriate in light of
the expressed congressional intent. Section 15 of the
Shipping Act gives the Commission broad power to “dis-
approve, cancel or modify any agreement, or any modi-
fication thereof . . . that it finds to be unjustly discrimi-
natory or unfair . .. or to operate to the detriment of
the commerce of the United States, or to be contrary to
‘8 The Federal Power Commission is no longer in existence.
Its responsibilities have been transferred to the Secretary of
Energy, 42 U.S.C. § 7151 (Supp. I 1977), and the Federal
Energy Regulatory Commission, id. § 7172.
46a
the public interest.” 46 U.S.C. § 814. Agreements ap-
proved by the Commission are exempt from the antitrust
laws. Id. Taking its cue from the legislative history, the
Supreme Court explained that Congress had concluded
that the advantages of regular shipping service, uniform
and stable rates, and efficient service could not be achieved
in the face of unrestricted competition and had there-
fore created the exemption. But, the Court said, the
exemption was not an unqualified gift to the shipping
industry; that is, it did not amount to 2 license to vio-
late the antitrust laws when the object of the unlawful
activity was unrelated to the goals the exemption was
intended to serve. The Court said that Congress had
authorized the Commission to disapprove agreements un-
der the public interest standard on the ground that their
anticompetitive implications outweigh benefits related to
the statutory goals. Jd. at 242-46.*
The EPA Administrator does not have authority to
regulate either the motor vehicle manufacturing industry
or the State of California under a broad charter to ad-
vance the public interest. The phrase “the public in-
terest” does not even appear in sections 202 and 209.
The Clean Air Act does not have its genesis in congres-
sional concern about business competition or antitrust
matters. The motor vehicle manufacturers enjoy no ex-
emption from the antitrust laws. As the Administrator
has consistently held since first vested with the waiver
authority, his inquiry under section 209 is modest in
scape. He has no “broad and impressive” authority to
modify California regulations.
49 The other cases to which petitioners refer do not warrant
extended discussion. Like Amerika Linien, United States
Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978), involved
the Shipping Act; like Gulf State Utilities, Northern Natural
Gas Co. v. FPC, 399 F.2d 953 (D.C. Cir. 1968), involved the -
Federal Power Act. Each of these cases turned on the broad
“public interest” standard under which the FMC and the FPC
47a
The Administrator’s decision to waive federal preemp-
tion for the in-use maintenance regulations does no vio-
lence to the concerns about anticompetitiveness reflected
in section 207. Nothing in that section forbids encourag-
ing the production of more durable emission-related parts.
Congress’ intent was to prohibit manufacturers from re-
quiring that maintenance on warranted parts be done
by the manufacturer and franchised dealerships.*° The
CARB’s regulations do not favor one segment of the
parts and services industry over another; they are neu-
tral on where the maintenance will be done. They will
therefore have no direct effect on the vehicle owner’s
decision to patronize the original equipment manufacturer
or the aftermarket industry at the time any component
needs to be replaced. Petitioners’ complaint is really with
(now FERC) operate and on the legislative history of the
statutes indicating congressional intent to include antitrust
policy within the scope of that standard. McLean Trucking
Co. v. United States, 321 U.S. 67 (1944), is clearly inapposite,
for in that case the Court did not even have to imply the
content of the ICC’s “public interest’? standard from the
structure of the statute or its legislative history; Congress
had expressly declared that antitrust policy was to be a fac-
tor in the ICC’s determinations. See 321 U.S. at 82 & n.16.
50 The CARB’s regulations do not violate section 207 (c) (3)
(B), which directs that the written instructions
shall not include any condition on the ultimate pur-
chaser’s using, in connection with such vehicle or engine,
any component or service (other than < component or
service provided without charge under the terms of the
purchase agreement) which is identified by brand, trade,
or corporate name; or directly or indirectly distinguish-
ing between service performed by the franchised dealers
of such manufacturer or any other service establishments
with which such manufacturer has a ‘commercial rela-
tionship, and service performed by independent automo-
tive repair facilities with which such manufacturer has
no commercial relationship.
rs! U.S.C. § 7541(c)(3)(B) (Supp. I 1977); see note 68
infra.
48a
the warranty obligations themselves, and they must ad-
dress those complaints to Congress, which created the
obligations, rather than to the Administrator.
V
THE WAIVER PROCEEDING
We have determined that in a section 209 proceeding
involving accompanying enforcement procedures relating
to standards for which a waiver has already been granted
the Administrator must address (1) whether the proce-
dures endanger the protectiveness of California’s stand-
ards and (2) whether the procedures are consistent with
the intent of section 202(a). The next question for de-
cision requires us to resolve how the Administrator must
go about addressing these concerns.
On petitioners’ analysis, section 209(b) imposes on
California the burden of demonstrating that the waiver
is lawful and further requires the Administrator to find
on the record that California has met this burden. This
last requirement, say petitioners, requires the Adminis-
trator to find that the California regulations are not arbi-
trary and capricious and are consistent with section 202
(a) before granting the waiver. The Administrator con-
tends that those favoring denial of the waiver carry the
burden of demonstrating that the waiver should not be
granted, and that his obligation is to grant the waiver if
that burden is not met.
Our starting point is the statute. Subsection (b) be-
gins: “The Administrator shall, after notice and public
hearing, waive application” of federal preemption for
California “if the State determines that the State stand-
ards will be, in the aggregate, at least as protective of
public health and welfare as applicable Federal stand-
ards.” 42 U.S.C. §7543(b) (Supp. I 1977) (emphasis
added). The only pre-waiver conditions this language
49a
imposes are that the Administrator find that California
has made a protectiveness determination and that he hold
a public hearing. It does not require him to find that the
standards are at least as protective of public health and
welfare as applicable federal standards. It does not say
he “may” grant a waiver once California makes the
determination and he holds a public hearing. It instead
contains an imperative to do an act—grant the waiver
after a hearing—once California has made the protective-
ness determination.
The requirement of a public hearing is a clue that
his task is something more than ministerial. The second
sentence of subsection (b) confirms the suspicion. It
provides that the Administrator must deny the waiver if
he makes one of three findings—that the protectiveness
determination (as opposed to the regulations which pro-
tect) was arbitrary and capricious; that the State does
not need the standards; or that the standard and en-
forcement procedures are inconsistent with section 202
(a). It is not necessary for the Administrator affirma-
tively to find that these conditions do not exist before
granting a waiver. The statute does not say “the Ad-
ministrator shall grant a waiver only if” he makes the
negative of these findings. That he must deny a waiver
if certain facts exist does not mean that he must in-
dependently proceed to make the opposite of those findings
before he grants the waiver regardless of the state of the
record. If the Administrator has an obligation to deal
with these factual findings it must arise out of the public
hearing held to discuss them. The language of the statute
and its legislative history indicate that California’s regu-
lations, and California’s determination that they comply
with the statute, when presented to the Administrator
are presumed to’Satisfy the waiver requirements and that
the burden of proving otherwise is oa whoever attacks
them. California must present its reguletions and find-
ings at the hearing, and thereafter the parties opposing
50a
the waiver request bear the burden of persuading the
Administrator that the waiver request should be denied.
As noted, the legislative hirtory makes clear that the
burden of proof lies with the parties favoring denial of
the waiver. Petitioners lost the battle they now wage
twelve years ago when Congress specifically declined to
adopt a provision which would have imposed on Cali-
fornia the burden to demonstrate that it met the waiver
requirements. As noted, the Senate version of the Air
Quality Act of 1967 contained the language which was
ultimately adopted by Congress. It vested the power
to make the protectiveness determination in California
and sharply restricted the Secretary’s role in a waiver
proceeding. The Senate Report explained that under the
proposal the “Secretary is required to waive application
unless he finds” one the factual circumstances set out in
section 209(b) (1) (A)-(C). S. Rep. No. 403, 90th Cong.,
1st Sess. 83 (1967) (emphasis added).
The House Committee changed this arrangement. It
was persuaded by the comments of manufacturers that
the separate administration of two different sets of emis-
sion regulations would unduly burden the industry. H.R.
Rep. No. 728, 90th Cong., Ist Sess. 21-22 (1967). It
therefore amended the Senate’s language to provide that
the Secretary “may” waive application of the preemption
provision “upon a showing by California” that its stand-
ards were more stringent than applicable federal stand-
ards. Id. at 22; see id. at. 69. In a separate statement
accompanying the House Committee Report which ex-
plained this amendment, two Representatives vigorously
protested this chenge, complaining that it improperly
placed the burden on California to demonstrate the value
of the waiver and thereby undermined the importance of
the California exception. Jd. at 96 (separate views of
- Reps. Moss and Van Deerlin).
Sla
On the floor of the House one of these dissenting Com-
mittee members offered an amendment to the bill which
replaced the Committee language with the Senate pro-
posal. 113 Cong. Rec. 30975 (1967) (remarks of Rep.
Moss). The ensuing debate focused on the wisdom and
need of requiring California to justify each of its emis-
sion control regulations to a federal officer.*! At the close
of the debate, the House adopted the amendment, there-
by rejecting language which would have imposed the
burden on California and accepting language which places
the burden on those who allege, in effect, that the na-
*t In their reply brief, petitioners suggest that the history
of the 1967 enactment “is ambiguous on the question of the
burden of persuasion,” citing one remark of “a supporter of
the version of Section 209(b) adopted in 1967” to the effect
that “California ‘would have the burden of proof.’” Joint
Reply Br. of Petitioners at 19 n.12 (citing 113 Cong. Rec.
30979 (1967) (remarks of Rep. Harvey)). In fact, while
remarks of some Congressmen are not always authoritative,
the legislative history could not be less ambiguous on this
question. The precise issue of the difference between the
Senate and House versions of the bill as it related to the bur- ©
den of persuasion was carefully explained on the floor. See
113 Cong. Rec. 30950 (1967) (remarks of Rep. Holifield).
After Rep. Moss offered his amendment to the House Com-
mittee version, explaining that it contained “the same lan-
guage, word for word, as was adopted unanimously by [the
Senate],” td. at 30975, several other members again explained
the difference between the House Committee version and the
Senate version, specifically emphasizing that California car-
ried the burden under the former but not the latter, see, €.9.,
113 Cong. Rec. 30976 (1967) (remarks of Rep. Wilson); id.
at 30977 (remarks of Rep. Roybal). The comment to which
petitioners advert was made during the debate on the Moss
amendment by a member who rose in opposition to that
amendment, id. at 30979 (remarks of Rep. Harvey), and was
part of his persistent effort to minimize the difference be-
tween the two versions, see id. at 40952 (remarks of Rep.
Harvey). The House found those efforts unconvincing, and
we must abide by that judgment.
52a
tional program is adequate to California’s needs. The
Administrator has consistently adhered to that choice
since then, see, e.g., 40 Fed. Reg. 30311, 30314 (1975),
and Congress expressed general approval of the Adminis-
trator’s waiver decisions in amending section 209 in 1977,
see H.R. Rep. No. 294, 95th Cong., Ist Sess. 301 (1977).
Petitioners have an opportunity to meet this burden
at the hearing the Administrator must conduct before
granting a waiver. If they have a case—if in fact the
circumstances exist in which Congress declared that “no
such waiver shall be granted”—then petitioners have
nothing to fear, for the hearing cannot be and is not an
idle exercise. The Administrator is not entitled to ignore
the evidence adduced at the hearing. He must consider
all evidence that passes the threshold test of materiality
and he must thereafter assess such material evidence
against a standard of proof to determine whether the
parties favoring a denial of the waiver have shown that
the factual circumstances exist in which Congress in-
tended denial of the waiver.
The standard of proof must take account of the nature
of the risk of error involved in any given decision, and
it therefore varies with the finding involved.** We need
52 It is noteworthy that this allocation of the persuasion
burden is consistent with general principles governing allo-
cation of burdens. Because section 209 requires the Adminis-
trator to grant a waiver unless he makes certain findings, the
denial of the waiver is the order to be promoted in a waiver
proceeding. Proponents of an order usually bear the burden
of showing the order is appropriate. See K. Davis, Adminis-
trative Law Treatise § 6:15 (2d ed. 1978). Here petitioners
are the proponent of the order denying the waiver. Similarly,
the burden of proof typically follows the party in control of
the relevant information. When technological feasibility is
in issue, the manufacturers are the ones in possession of the
relevant information.
88 International Harvester Co. v. Ruckelshaus, 478 F.2d 615,
642 (D.C. Cir. 1973) ; K.C. Davis, supra note 52, § 6:15.
53a
not decide how this standard operates in every waiver
proceeding. Since this proceeding involved enforcement
procedures, the only findings of relevance are whether the
procedures impact on California’s protectiveness determi-
nation and whether they are consistent with section 202’s
concern with technological feasibility. The Administrator
held that there must be “clear and compelling evidence”
to show that proposed procedures undermine the pro-
tectiveness of California’s standards, and this holding has
strong support in the legislative history.** It also accords
with the congressional intent to provide California with
the broadest possible discretion in setting regulations it
finds protective of the public health and welfare. The
Administrator did not expressly describe a standard of
proof for the section 202(a) inquiry, but we have else-
where held that the “preponderance of the evidence”
standard governs inquiry into technological feasibility,
and we do not understand the Administrator to dispute
that measurement here. This standard accords with Con-
gress’ intent to minimize economic disruption in manu-
facturing.
The public hearing on California’s waiver request,
and the record displaying the evidence adduced therein,
ensure that a court will be able to conduct meaningful
review of the Administrator’s waiver decisions. This is
the concern animating our decision in International Har-
54 The House Report on the 1977 amendments cautioned:
The Administrator . . . is not to overturn California’s
judgment ligntly. Nor is he to substitute his judgment
for that of the State. There must be clear and compelling
evidence that the State acted unreasonably in evaluating
the relative risks of various pollutants in light of the air
quality, topography, photochemistry, and climate in the
State, before the EPA may deny a waiver.
H.R. Rep. No. 294, 95th Cong., Ist Sess. 302 (1977).
55 International Harvester Co. v. Ruckelshaus, 478 F.2d
615, 642 (D.C. Cir. 1978).
S4a
vester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973),
which each of the parties attempt to embrace as their
own. In that case, the EPA denied an application for
ion of emission standards sought under a pro-
vision of the Clean Air Act which imposed on the ap-
plicant the burden of demonstrating the unavailability of
effective control technology. The statute explicitly placed
the burden of persuasion on the applicants. The stand-
ard of proof the applicants had to meet was a preponder-
ance of the evidence. Noting that the applicants had
submitted all the data in their possession and that the
Administrator did not ask for more, the court was dis-
turbed by the fact the Administrator had relied on his
own methodology and predictions in arriving at a factual
determination contrary to the applicants’ data. Believ-
ing that the applicants had met the standard of proof
with their data, the court held that the burden of proof
shifted to the Administrator to demonstrate that his
methodology and predictions were reliable. Jd. at 642-43.
International Harvester’s reasoning represented neither
a substantive judgment that the emission standards were
in fact beyond current and projected technological capa-
bilities nor a strictly procedural judgment that the burden
shifts as it might in a normal civil trial setting. Rather
the use of the burden of proof was meant to structure
and facilitate judicial review. The burden “shifted” to
the agency as a necessary incident of its obligation to
give reasoned consideration to the issues before it. The
Administrator, the court said, must sustain the “burden
of adducing a reasoned presentation supporting the re-
liability of the EPA’s methodology.” Id. at 643. That
is, he had to explain why his methods were superior to
the data the applicants had submitted and thereby ade-
quate to support the agency’s rejection of the applicant’s
data. Only with such an explanation could the court
determine whether the Administrator had acted rea-
sonably.
55a
Here, too, if the Administrator ignores evidence dem-
onstrating that the waiver should not be granted, or if
he seeks to overcome that evidence with unsupported
assertions of his own, he runs the risk of having his
waiver decision set aside as arbitrary and capricious.
His “burden” is the burden of acting reasonably.**
*6 As we noted in the preface to our analysis, the Adminis-
trator like every other administrative officer must give rea-
soned consideration to the issues before him, but the extent
of the consideration he is required to give depends on the
statute under which he is operating. This principle explains
why this case differs from those petitioners cite in support
of their argument that the Administrator has an affirmative
obligation to make negative findings. Thus, for example, our
holdings that agencies required to prepare environmental
impact statements under the National Environmental Policy
Act cannot sit back, “like an umpire, and resolve adversary
contentions” presented to them turn on the fact that NEPA
places primary responsibility for its enforcement in the hands
of the agencies. See State of Alaska v. Andrus, 580 F.2d 465,
473 (D.C. Cir. 1978) ; Calvert Cliffs’ Coordinating Committee,
Inc. v. AEC, 449 F.2d 1109, 1119 (D.C. Cir. 1971). NEPA
“states that every federal agency shall consider ecological
factors when dealing with activities which may have an im-
pact on man’s environment.” Zabel v. Tabb, 430 F.2d 199, 211
(5th Cir. 1970) (emphasis added). Similarly, in the other case
petitioners cite, Citizens Committee to Save WEFM v. FCC,
506 F.2d 252 (D.C. Cir. 1974) (en banc), we held that the
FCC’s performance of its regulatory role did not depend
“upon the assiduousness” of private parties because the
agency had a “mandate to approve applications consistent
with the public interest.” Jd. at 262 n.21. These cases do not
hold that regardless of the statute involved the agency always
bears the burden of demonstrating a particular state of facts
exist. Rather they turn on the special mandate involved. Here
the Administrator has no broad mandate to assure that Cali-
fornia’s emissions control program conforms to the Adminis-
trator’s perceptions of the public interest. Absent the con-
tingency that he is able to make contrary findings, his role
with respect to the California program is largely ministerial.
56a
VI
THE WAIVER DECISION
It remains to be seen whether there is a discernible
rational basis for the Administrator’s decision to waive
federal preemption for the in-use maintenance regula-
tions. In light of the foregoing, this leaves two matters
for consideration. First, did the Administrator reason-
ably conclude that there was no clear and compelling
evidence to show that the regulations would undermine
the protectiveness determination California made with
respect to the standards to which the regulations relate?
Second, did the Administrator reasonably conclude that
petitioners failed to meet their burden of demonstrating
that the in-use maintenance regulations were inconsistent
with the intent of section 202 (a) ?
A. The Protectiveness Determination
Almost all petitioners’ assertions on this point relate
to the Administrator’s failure to explore whether the in-
use maintenance regulations were themselves arbitrary
and capricious, which as noted is not a question for the
Administrator or this court. Once California has come
forward with a finding that the procedures it seeks to
adopt will not undermine the protectiveness of its stand-
ards, parties opposing the waiver request must show that
this finding is unreasonable. Petitioners claim to have
done so, but we can find no evidence in the record to
support that assertion.
Petitioners refer to four documents in the record os-
tensibly related to the effect of the standards on public
health and welfare. The first is a letter from a rep-
resentative of General Motors Corporation to the EPA
which declares that the major issue in the waiver pro-
ceeding ought to be whether California needed the in-use
57a
maintenance regulations.” Setting aside the fact that
this assertion relates to an inquiry not relevant to a
waiver involving enforcement procedures, the statement
itself is not evidence but an argument. The letter ad-
vances General Motors’ “belief” that the in-use regula-
tions might imperil the protectiveness of California’s
standards, but it offers no evidence to support that belief.
In light of the voluminous record developed before the
CARB and the EPA, it is not unreasonable, if the claim
were true, to expect that petitioners should be able to
point to some data backing up that assertion.
The second documert is also a product of General
Motors and also predominately relates to the “need’’ in-
quiry that is inapplicable to this proceeding.®* This docu-
ment too fails to point to any evidence regarding the risks
ostensibly attending the regulations and instead focuses
on the allegedly flawed studies the CARB undertook to
demonstrate the public health benefits of the in-use main-
tenance regulations. There is certainly room for disagree-
ment about the potential benefits of the in-use main-
tenance regulations; the CARB staff conceded that it
could not precisely identify the emissions-related benefits
to be derived from the regulations alone.*® Moreover,
5? Letter from T.M. Fisher to Benjamin R. Jackson (August
26, 1977), reprinted in J.A. 1281-82 (cited in Joint Br. for
Petitioners at 59, 65).
58 Genera] Motors Corp., Analysis of Reports Used by the
California Air Resources Board to Support the Restricted
Maintenance Regulations 5-8 (submitted to the EPA Febru-
ary 1978), reprinted in J.A. at 1803-06 (cited in Joint Br.
for Petitioners at 59, 65).
5° See California Air Resources Board, Staff Report No.
77-12-1, 19-28 (May 26, 1977), reprinted in J.A. at 180-89;
California Air Resources Board, Staff Report No. 77-9-2, 21-
28 (April 28, 1977), reprinted in J.A. at 146-53. Coupling
the other new regulations (such as inspection procedures)
58a
there is room for disagreement about the exact meaning
of the studies used by the CARB. But we cannot sub-
stitute our judgment about this data for that of the offi-
cials charged with interpreting it.
The other two documents petitioners cite are similarly
inadequate. One is an unsupported assertion made by
a representative of the Ford Motor Company relating to
the potential public health effects of the in-use main-
tenance regulations.” The other has nothing to do with
with its new maintenance regulations, the CARB staff pre-
dicted a reduction in:
hydrocarbons by 4 tons/day, carbon monoxide by 73
tons/day, and oxides of nitrogen by 8 tons/day in the
South Coast Air Basin in 1990. These reductions repre-
sent 1.5%, 2.59, and 0.5% of the total motor vehicle
emissions at that time... . In addition, the proposed
maintenance regulations will strongly enhance public
acceptance for the [Motor Vehicle Inspection Program],
and increase the chances for its success.
California Air Resources Board, Staff Report No. 77-12-1,
supra, at 28, J.A. at 189. We have no basis other than peti-
tioners unsubstantiated say-so that this prediction is not
trustworthy.
6o Environmental Protection Agency, Transcript of Public
Hearing on California Waiver Request 133 (Aug. 3, 1977)
(statement of Ms. Petrauskas), reprinted in J.A. at 3413
(cited in Joint Br. for Petitioners at 59). The following
colloquy appears in the record immediately following this
statement:
MR. KRUSE [Member, EPA Hearing Panel]: What
is your reaction to the data CARB presented which in-
dicates your recommended maintenance is not being per-
formed by the vehicle owners?
MR. WEAVER [Emissions Planning Associate, Ford
Motor Co.]: I guess we have to accept that some of that
is true, and where it has been demonstrated that this lack
of maintenance is contributing to air quality problems,
59a
public health at all, but instead appears to be an exami-
nation of the technological feasibility of the proposed
regulations.”
The Administrator did not specifically discuss any of
these documents in: his waiver decision; he simply held
that there was no evidence in the record to support a
finding that the regulations undermined the protective-
ness of the California standards. Having reviewed the
documents petitioners insist suggest otherwise, we agree
- with the Administrator.
B. Technological Feasibility
We find it necessary to address only three of the claims
. petitioners advance under this heading.”
we are doing everything we can to produce maintenance-
free parts.
MR. KRUSE: Do you have any data of your own
which you can supply?
MR. WEAVER: No.
61 General Motors Corp., Statement to the California Air
Resources Board on Proposed Changes in Allowable Mainte-
nance 8-10 (May 26, 1977), reprinted in J.A. at 3310-12
(cited in Joint Br. for Petitioners at 65).
82 We have already disposed of petitioners’ argument that
the “cost of compliance” consideration requires the Adminis-
trator to develop a cost-effectiveness study of the in-use main-
tenance regulations. See note 40 supra.
In a separate brief, intervenor The Automobile Importers
of America (“AIA”) argues that the Administrator ignored
the need of manufacturers of imported motor vehicles for
adequate lead time to complv with the regulations. Its com-
plaint is based on the fact that most importers have not yet
begun to use breakerless high-energy ignition systems, which
are important in extending the useful life of spark plugs and
otherwise reducing the maintenance needed for other igni-
tion parts. AIA refers to no evidence supporting its asser-
tion that it will not have the adequate lead time to incor-
60a
First, petitioners complain that the Administrator
“failed to consider—and certainly did not address—the
fundamental technological issue raised by the manufac-
turers: the reliability of [the C]ARB’s methodology.”
Joint Br. for Petitioners at 72. It is important in under-
standing this claim to appreciate petitioners’ dilemma:
The restrictions on allowable maintenance are the same
in-use as they are during the certification process. Yet
petitioners do not here challenge the applicability of the
regulations to certification. They thus are in the posi-
tion of having to argue that while it is technologically
feasible to construct a prototype vehicle that will pass
certification testing and receive a certificate of con-
formity, it is not technologically feasible to construct a
motor vehicle based on the prototype which will meet the
standards and procedures in actual use.
Petitioners say that the problem with basing in-use
feasibility judgments on certification test procedures is
that the latter does not take account of deterioration over
time, weather conditions, and the like—that is, those
things which affect a motor vehicle in actual use but
which are not considered during certification. For ex-
ample, the prototype used during certification is sub-
jected only to a mileage interval test; our technology
does not yet permit the simulation of time. Nor do cer-
tification procedures test for extreme driving conditions,
or changes in climate. Petitioners contend that manufac-
turers commonly make maintenance recommendations
porate the newer ignition system. The record shows that the
newer system itself is “virutally [an] off-the-shelf ite[m].”
California Air Resources Board, Staff Report No. 77-12-1, i8
(May 26, 1977), reprinted in J.A. at 179. Its argument is
therefore unpersuasive.
The balance of the manufacturers’ technological feasibility
arguments not discussed herein are either moot, see note 64
infra, or based on undocumented assertions that do not merit
discussion.
6la
based on such factors. They contend that the CARB study
is fatally flawed because it completely ignores the main-
tenance needed to take account of factors peculiar to
actual driving conditions in favor of reliance on main-
tenance needed during a procedure that does not ac-
curately reflect actual driving conditions. This focus,
petitioners maintain, is inherently unreliable and under-
mines the foundation of the CARB’s conclusion that the
regulations are in fact technologically feasible.
Petitioners’ argument hails from International Har-
vester. As noted, in that case the EPA interposed a
methodology of its own to demonstrate that effective con-
trol technology would be available when needed; it used
this methodology to offset the manufacturers’ contrary
data. The court held that the EPA had the “burden”
of demonstrating that its methodology was sufficiently
reliable to permit a finding of technological feasibility.
Wrapping themselves in the cloth spun by this reasoning,
petitioners contend that the Administrator carries the
burden of demonstrating the reliability of the CARB’s
technological feasibility studies.
The cloak petitioners purport to see in International
Harvester does not exist. It is initially noteworthy that
the study to which petitioners refer was by no means the
sole basis for the CARB’s conclusions. The recommenda-
tions based on that study were significantly altered after
continued examination and solicitation of comments from
manufacturers.” More important, the question for the
Administrator is not whether the CARB’s data is re-
* See notes 15 & 16 supra. Still, the CARB did rely on
mileage intervals to shape its in-use maintenance regulations
to set aside the Administrator’s decision to waive the regu-
lations, however, this court requires persuasive evidence that
the manufacturers cannot comply with them in light of cur-
rent and projected technology. On this record, the manufac-
turers have failed to advance any evidence attesting to that.
62a
liable, but whether the manufacturers’ current and pro-
jected capabilities permit them to meet the in-use main-
tenance regulations. It was incumbent upon the manu-
facturers to come forward with evidence that the regula-
tions were technologically infeasible. As in Jnternational
Harvester, the Administrator’s reliance on other data
is germane only if the manufacturers have produced such
evidence. If the record does not yield evidence of tech-
nological infeasibility, petitioners lose.
Second, petitioners claim that they did indeed demon-
strate technological infeasibility. There is little evidence
in the record to support that assertion, however. Most
of petitioners’ fears turn on the manufacturers’ earlier in-
ability to recommend maintenance to purchasers—recom-
mendations which they wanted to make to reflect actual
in-use driving conditions—but these complaints have since
become moot. The only evidence in the record tending
to show inadequate lead time is some test data indicating
a significant decrease in drive belt tension after initial
operation, data which might lead to the conclusion that
the CARB’s estimates on maintenance intervals for drive
belt tension are unrealistic. As the Administrator pointed
out, however, the same evidence indicated that the drive
64 See note 18 supra. One argument was that if manufac-
turers could not recommend maintenance there would be no
assurance that certain parts (particularly air filters, fuel fil-
ters, hoses and tubing) would last for the specified mileage.
Another related to possible safety implications of restricting
recommended maintenance. The CARB’s emergency amend-
ments permit manufacturers to recommend additional main-
tenance, and thus these arguments are no longer properly
before us.
Because we find the manufacturers did not meet their bur-
den on the alleged inconsistency of the in-use maintenance
regulations with section 202(a), we need not discuss whether
the Administrator acted improperly in relying on an EPA
staff synopsis of the waiver proceeding record.
63a
belt tension stabilized after the initial period and the
greatest drop-off occurred during the first twenty miles
of the vehicle’s use. On this basis the Administrator con-
cluded that a pre-sale dealer check of the drive belt tension
would relieve the manufacturers’ complaint. We can find
no other evidence in the record supporting a conclusion of
inadequate lead time for the requisite technology.
Third, petitioners assert that the Administrator should
have found the in-use maintenance regulations inconsist-
ent with the intent of section 202(a) because the CARB
made no showing that more durable parts will lead to
effective emissions control and because the in-use mainte-
nance regulations will inhibit the development of emission-
related technology. We fail to see how these assertions
relate to technological feasibility. The first proposition—
that there is no evidence to support the idea that more
durable parts will lead to effective emissions control—
rests on some data indicating that short replacement in-
tervals for spark plugs reduces emissions. This may be
true, but it does not mean that spark plugs cannot be
equally effective on longer maintenance intervals, or for
that matter, that the manufacturers cannot build the spark
plugs to last the longer interval. The second proposition
—that the regulations will inhibit the development of new
emissions technology—rests on the idea that because new
technology generally requires more maintenance manu-
facturers will not develop it. This is, as the Administra-
tor aptly labeled it, “speculation.” It is also improbable
given the clear economic incentive for manufacturers to
develop and improve emissions control technology.
VIII
THE CONSTITUTIONAL ARGUMENTS
We need not linger long on our final inquiry. Peti-
tioners make two constitutionally-based challenges to the
64a
Administrator’s waiver decision and its consequences.
These challenges are without merit.
Petitioners’ first amendment claim is that the in-use
maintenance regulations unlawfully burden the manu-
facturers’ right to communicate with their customers. We
disagree. The regulations permit manufacturers to rec-
ommend maintenance reasonable and necessary to ensure
the safe operation of the motor vehicle.® Otherwise the
regulations simply require manufacturers to make clear
that maintenance which is required for warranty pur-
poses and that which is merely recommended. Although
commercial speech is now protected by the first amend-
ment, regulation of such speech having a reasonable
basis in a legitimate governmental policy is lawful.”
The CARB determined that the failure of in-use vehicles
to meet emissions standards was partly tied to the amount
of maintenance a vehicle owner performs (or fails to
perform) on emission-related parts. The animating con-
cern was with air quality, a legitimate object of govern-
mental attention. It decided to address this problem by
reducing the amount of maintenance needed to be per-
formed on emission-related parts and thereby encourage
the production of more durable parts. As part of this
effort, it decided to limit the amount of maintenance a
manufacturer can demand of motor vehicle owners. Con-
gress contemplated a comparable limitation in enacting
section 207. This limitation is reasonabiy related to a
85 See note 18 supra.
6 Bates v. State Bar of Arizona, 433 U.S. 350, 363-66
(1977); Virginia State Board of Pharmacy v. Virginia Citi-
zens Consumer Council, 425 U.S. 748, 761-70 (1976).
*? Banzhaf v. FCC, 405 F.2d 1082, 1102 (D.C. Cir. 1968),
cert. denied, 396 U.S. 842 (1969); cited with approval in
Virginia State Board of Pharmacy v. Virginia Citizens Con-
sumer Council, 425 U.S. 748, 772 n.24 (1976); see Young v.
Mini Theatres, Inc., 427 U.S. 50, 68 (1975).
65a
legitimate governmental goal. It therefore passes con-
stitutional muster.
As for petitioners’ due process claim, it is well settled
that Congress is entitled to create statutory rights and
liabilities that are rationally related to a legitimate gov-
ernmental interest. It did so in section 207. The Cali-
fornia in-use maintenance regulations do not alter the
statutory defenses to those liabilities. Instead they make
those defenses consistent with California’s determination
that motor vehicles can be designed to be operated with
less maintenance than is currently the case. That this
determination does not meet with the manufacturers’ ex-
pectations or desires is no basis for holding the regula-
tions unconstitutional.
IX
CONCLUSION
Congress has decided to grant California the broadest
possible discretion in adopting and enforcing standards
for the control of emissions from new motor vehicles.
Section 209 of the Clean Air Act requires the Adminis-
trator to waive federal preemption of motor vehicle emis-
sion control standards and accompanying enforcement
procedures for the State of California unless he makes
certain findings that such a waiver is inappropriate. This
power encompasses the power to waive federal preemp-
tion for in-use maintenance regulations designed as en-
68 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16
(1976); Lichter v. United States, 334 U.S. 742 (1948).
Like the first amendment claim, this argument too is partly
moot owing to the CARB’s emergency amendments. See notes
18 & 64 supra. Moreover, like certain of the petitioners’ other
contentions, this argument partly draws support on proposed
warranty regulations which the CARB has adopted. The Ad-
ministrator has not waived preemption of these regulations,
however, and hence they are not properly before us.
66a
forcement procedures for pre-existing standards. In
evaluating whether a waiver is appropriate for enforce-
ment procedures relating to standards for which a waiver
has already been granted, the Administrator is required
to address whether the procedures endanger the protec-
tiveness of California’s standards and whether the pro-
cedures are consistent with section 202(a) of the Clean
Air Act. Those favoring the denial of the waiver carry
the burden of demonstrating that the waiver is inap-
propriate. The petitioners here failed to carry that bur-
den. Their request to set aside the Administrator’s waiver
decision is therefore denied. It is
So ordered.
67a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1978
Filed Aug 7 1979
No. 78-1896
The Motor and Equipment Manufacturers Association, Inc.,
Petitioner
v.
Environmental Protection Agency and
las Costle, Admini =
Environmental Protection Agency, Respondents
Automobile Importers of America
and State of California, Jntervenors
No. 78-1901
Automotive Service Industry, et al., Petitioners
v.
F-vironmental Protection Agency, Respondent
State of California and Automobile Importers of America,
Intervenors
No. 78-1931
Motor Vehicle Manufacturers Association of the United
States, Inc., Petitioner
Vv.
Douglas M. Costle, Administrator of the
Environmental Protection Agency
Environmental Protection Agency, Respondents
State of California and Automobile Importers of America,
Intervenors
68a
No. 78-1896, 78-1901, 78-1931,
78-1943 & 78-1944
No. 78-1943
Chrysler Corporation, Petitioner
v.
Environmental Protection Agency, Respondent
State of California and Automobile Importers of America,
Intervenors
No. 78-1944
General Motors Corporation, Petitioner
¥.
United States Environmental Protection Agency and Douglas
M. Costle, Administrator of the United States Environmental
Protection Agency, Respondents
State of California and Automobile Importers of America,
Intervenors
ORDER
It is ORDERED, by the Court, sua sponte, that the Opin-
ion for the Court filed in the above captioned cases on August
3, 1979 be, and it hereby is, amended as follows:
On e 19 of the slip opinion, on the final line of
tecenen after the word ‘‘control’’ and before the word
‘‘initio’’, strike ‘‘ad’’ and insert in lieu thereof ‘‘ab’’.
69a
No. 78-1896, 78-1901, 78-1931,
78-1943 & 78-1944
On page 21 of the slip opinion, on the second line of the
page, after the word ‘‘be’’ and before the word ‘‘or’’, strike
“‘imperative’’ and insert in lieu thereof ‘‘inoperative’’.
On page 28 of the slip opinion, on the eleventh line of the
second full paragraph, after the word ‘‘and’’ and before the
word ‘‘implications’’, strike ‘‘anti-trust’’ and insert in lieu
thereof ‘‘antitrust’’.
On page 51 of the slip opinion, on the third to the last line
of footnote 51, after the word ‘‘at’’ and before the character
and word ‘‘(remarks’’, strike the number ‘‘40952”’ and insert in
lieu thereof ‘‘30952’’.
On page 53 of the slip opinion, on the final line of footnote
54, after the characters and numbers ‘‘(1977)’’ and before the
period, insert: ‘‘(emphasis added)’’.
On page 61 of the slip opinion, on the third line of footnote
63, at the start of the line and before the word ‘‘set’’, strike the
word ‘‘to’’ and insert in lieu thereof the word ‘‘To’’.
Per Curiam
FOR THE COURT:
GEORGE A. FISHER,
Clerk
/s/ By: ROBERT A. BONNER
ROBERT A. BONNER
Chief Deputy Clerk
70a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1978
Filed Sep 17 1979
No. 78-1896
The Motor and Equipment Manufacturers Association, Inc.,
Petitioner
vo
Environmental Protection Agency and
Douglas Costle, Administrator, Environmental
Protection Agency, Respondents
State of California, et a/. intervenors
And Consolidated Case Nos. 78-1901, 78-1931, 78-1943, and
78-1944
BEFORE: Wright, Chief Judge; MacKinnon and Robb,
Circuit Judges
ORDER
Upon consideration of petitioners’ (Motor and Equipment
Manufacturers Association, Inc., et a/.) petition for rehearing,
it is
ORDERED, by the Court, that petitioners’ aforesaid peti-
tion for rehearing is denied.
Per Curiam
FOR THE COURT:
GEORGE A. FISHER
Clerk
Tla
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1978
Filed Sep 17 1979
No. 78-1896
The Motor and Equipment Manufacturers Association, Inc.,
Petitioner
Vv.
Environmental Protection Agency and
Douglas Costle, Administrator, Environmental
Protection Agency, Respondents
State of California, et a/., intervenors
And Consolidated Case Nos. 78-1901, 78-1931, 78-1943, and
78-1944
BEFORE: Wright, Chief Judge; McGowan, Tamm,
Leventhal, Robinson, MacKinnon, Robb, Wilkey, and Wald,
Circuit Judges
ORDER
The suggestion for rehearing en banc, filed by petitioners
(Motor and Equipment Manufacturers, Association, Inc., et
al.) having been transmitted to the full Court and no judge in
regular active service having requested a vote with respect
thereto, it is
ORDERED, by the Court, that petitioners’ aforesaid sug-
gestion for rehearing en banc is denied.
Per Curiam
FOR THE COURT:
GEORGE A. FISHER
Clerk
Circuit Judge McGowan did not participate in the foregoing
order.
72a
SUPREME CouURT OF THE UNITED’ STATES
No. A-478
GENERAL MOTORS CORPORATION, ET AL., Petitioners,
Vi
DOUGLAS M. COSTLE, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
Upon consideration of the application of counsel for
petitioner(s), ue
It is Ordered that the time for filing a petition for writ
of certiorari in the above-entitled cause be, and the same is
hereby, extended to and including February 14, 1980.
/s/ WARREN E. BURGER
Chief Justice of the United
States
Dated this 14th
day of December, 1979
ere Co ee een,
73a
CALIFORNIA STATE MOTOR VEHICLE POLLUTION
CONTROL STANDARDS
Waiver of Federal Preemption
I. INTRODUCTION
By this decision, issued under section 209(b) of the Clean
Air Act, as amended (hereinafter ‘‘the Act’’),' I am granting the
State of California a waiver of Federal preemption to enforce its
limitations on allowable maintenance for 1980 and subsequent
model year gasoline-powered passenger cars and for 1981 and
subsequent model year gasoline-powered light duty trucks and
medium duty vehicles.’
Under section 209(b)(1) of the act, when California re-
quests a waiver of Federal preemption as to accompanying en-
forcement procedures which relate to standards for which a
waiver has already been granted and is still in effect, I must
grant the requested waiver unless I find that (1) the procedures
may cause the California standards, in the aggregate, to be less
protective of public health and welfare than the applicable Fed-
eral standards or (2) the California standards and accompany-
ing enforcement procedures are not consistent with section
202(a) of the act. With regard to the first finding, if the public
record of the proceedings before me contain plausible evidence
that the California enforcement procedures may cause the Cali-
fornia standards, in the aggregate, to be less protective than the
corresponding Federal standards, then I must deny the waiver
if: (1) California did not make a positive determination as to the
protectiveness of the standards when coupled with the new en-
forcement procedures or (2) California did make such a deter-
mination, and the record contains clear and compelling evi-
' 42 U.S.C. § 7543(b)(1977).
* Paragraphs 3e, 3f, 3g and 3h, ‘‘California Exhaust Emission Stan-
dards and Test Procedures for 1980 and Subsequent Model Passenger
Cars, Light Duty Trucks and Medium Duty Vehicles,’’ incorporated
by reference in Title 13, Cal. Admin. Code § 1960(b), as amended
September 30, 1977 [hereinafter ‘‘1980 Test Procedures { va
13 Cal. Admin. Code § 1960(c) (May 26, 1977).
14a
dence that its determination is arbitrary and capricious.’ With
regard to the second finding, State enforcement procedures are
deemed not to be consistent with section 202(a) if there is inade-
quate iead time to permit the development of the technology
necessary to implement the new procedures, giving appropriate
consideration to the cost of compliance within that time frame,
or if the Federal and California test procedures impose incon-
sistent certification requirements.
I cannot make the findings required for a denial of the
waiver under section 209(b)(1) with respect to California’s limi-
tations on allowable maintenance for aforementioned vehicle
classes.
Il. BACKGROUND
On May 26, 1977, the California Air Resources Board
(CARB) adopted provisions limiting the scheduled mainten-
ance, to be performed during certification, on the engine, emis-
sion control system and fuel system of durability vehicles.‘ It
also adopted provisions requiring approval by the Executive Of-
ficer of in-use maintenance instructions. Manufacturers cannot
recommend any emissions control related maintenance other
than that performed during certification.* Exceptions, also sub-
ject to CARB approval, were provided for maintenance to vehi-
cles operated under extreme conditions and for inspections nec-
essary to assure safe operations of the vehicle in use.* Compli-
ance with the certification and the maintenance instruction limi-
tations is a prerequisite to certification. Accordingly, all of the
allowable maintenance regulations are accompanying enforce-
ment procedures subject to review under the criteria set forth in
the introduction.
On June 9, 1977, California requested a waiver of Federal
preemption for all of the foregoing limitations on allowable
> 43 FR 9344, 9345, 9346 (Mar. 7, 1978).
* See 1980 Test Procedures 4 3f.
* 1980 Test Procedures ¢ 3e, 3g and 3h; 13 Cal. Admin. Code §
1960(c)(May 26, 1977).
* 1980 Test Procedures 4 3g(1).
setetiniatih i ater rence
75a
maintenance.’ Pursuant to a notice published in the FEDERAL
REGISTER, a public hearing was held in San Francisco, Calif. on
August 3-4, 1977.°
The Clean Air Act Amendments of 1977 were enacted on
August 7, 1977.° EPA held a public hearing on October 13,
1977, to consider the effect of the amendments on this and all
other pending waiver requests. '°
III. Discussion
Public Health and Welfare. Certification procedures like
the California limitations on allowable maintenance are
‘faccompanying enforcement procedures’’ under section
209(b)(1) of the act.'' The criteria for my review of the public
health and welfare issue as it pertains to accompanying enforce-
ment procedures have been set forth in the introduction.
California’s 1980 and subsequent model year passenger car
and 1981 and subsequent model year light duty truck and med-
ium duty vehicle exhaust emission standards have received
waivers of Federal preemption.'? The public record does not
contain plausible evidence that the restrictions on allowable
maintenance cause the California standards to be less protec-
tive, in the aggregate, than the applicable Federal standards.
Furthermore, California has determined that its underlying
standards as affected by the allowable maintenance limitations
. Letter from Mr. William H. Lewis, Jr., executive officer, Califor-
nia Air Resources Board (CARB), to Douglas Costle, Administrator,
Environmental Protection Agency (EPA), (June 9, 1977).
* 42 FR 36009 (July 13, 1977).
* Pub. L. 95-95, 91 Stat. 685 (Aug. 7, 1977).
'© 42 FR 45942 (Sept. 13, 1977).
'' 42 FR 3192, 3194 (Jan. 17, 1977).
'? See 43 FR 25729 (June 14, 1978), pertaining to 1980 and subse-
quent model year passenger cars; 43 FR 1829 (Jan. 12, 1978), pertain-
ing to 1981-82 light duty trucks and medium duty vehicles; 43 FR
15490 (Apr. 13, 1978), pertaining to 1983 and subsequent model year
light duty trucks and medium duty vehicles.
76a
are at least as protective of public health and welfare as the ap-
plicable Federal standards.'’ The public record does not contain
clear and compelling evidence that this determination was arbi-
trary and capricious. As discussed later, the record contains as-
sertions that the restrictions themselves are arbitrary and capri-
cious or were adopted in an arbitrary and capricious manner.
But, these contentions do not address the narrow determination
to be reviewed herein. Accordingly, | find no basis for denying
the waiver on this issue.
Consistency of Procedures. If | find that the California cer-
tification procedures conflict with the corresponding Federal
procedures so as to make manufacturers unable to meet Federal
and California requirements with the same test vehicle, I must
deny the waiver unless the conflicts are resolved through admin-
istrative action. Because the California limitations on mainten-
ance during certification are more restrictive than the corres-
ponding Federal procedures,'* and because the manufacturers
presented no arguments on this issue, I cannot find a conflict
between the respective certification procedures. '*
Technology and Lead Time. | also must deny a California
waiver request if I find inadequate lead time remaining to per-
mit the development and application of the requisite technol-
ogy. For the purposes of this discussion, I distinguish at times
between the certification and in-use instruction limitations.
However, because the in-use instruction limitations relate to the
manufacturer’s ability to produce motor vehicles which will
conform to the standards throughout their useful life, their
') State of California Air Resources Board, Resolution 77-48 at 4
(Sept. 30, 1977).
“4 Compare 40 C.F.R. § 86.078-25 and 1980 Test Procedures 3f.
Since the Federal regulations specify the maximum frequency for per-
-forming various maintenance items, any less frequent intervals would
not conflict with these regulations.
'§ Objections regarding possible conflicts between California’s and
Federal maintenance instruction limitations which do not present con-
flicting methods of obtaining certification, are discussed hereinafter.
ee
~~
T7Ta
technological feasibility along with that of the certification limi-
tations is relevant to my decision.
With regard to certification maintenance limitations,
Chrysler found them technologically feasible.'* Ford also could
comply with the limitations as they related to certification.'’
Ford and Chrysler did qualify their assessments by stating that
they applied only to certification, and not to in-use or recom-
mended maintenance.'* AMC, although it could not say the lim-
itations were technologically feasible, could not state that they
were technologically infeasible. '*
General Motors was the one major American manufacturer
to argue that both the certification and in-use limitations were
not technologically feasible within the remaining lead time.”°
General Motors, and others, pointed to the oxygen sensor as
one essential component in future emission control systems
having relatively unknown durability characteristics.2! Some
‘* Transcript of public hearing on California waiver request 231-232
(Aug. 3-4, 1977) [Hereinafter ‘‘August Tr.’’].
'? August Tr. 130. Prior to the public hearing on Aug. 3-4, 1977,
California banned the use of the fuel additive MMT in certification
fuel. See letter from G. C. Hass, CARB, to all motor vehicle manufac-
turers (July 8, 1977). This eliminated the grounds for Ford’s objec-
tions to the certification limitations.
'* See notes 16, 17, supra.
'? August Tr. 237.
© August Tr. 154, 161; General Motors statement to the CARB on
proposed changes to allowable maintenance practices 8-10 (May 26,
1977); letter from Mr. T. M. Fisher, director, Automotive Emission
Control, General Motors Corp., to Mr. Benjamin R. Jackson, direc-
tor, Mobile Source Enforcement Division (MSED), EPA 2-3 (Aug.
26, 1977) [hereinafter GM Aug. 26, 1977, letter].
*' August Tr. 187-188; Toyota comments before the EPA waiver
hearing on the California exhaust emission standard for 1982 and
subsequent model light and medium-duty vehicles, attachment I at 2
(Aug. 3-4, 1977); letter from Mr. Thomas C. Austin, deputy executive
officer, CARB to Mr. Benjamin R. Jackson, director, MSED, EPA,
attachment I at 4 (Aug. 31, 1977).
78a
evidence in the record tended to support this position.”? How-
ever, indications by Ford?’ and information provided by my
staff regarding recent technological advancements suggest
otherwise.** Based on the record before me, I cannot find that
there is inadequate lead time in which to develop and apply the
requisite technology.
Several manufacturers contended that the allowable main-
tenance limitations will inhibit the development and implemen-
tation of new emissions control technology.”* The lack of actual
examples, which would constitute evidence of this problem,
make this argument speculative. Furthermore, the rapid techno-
logical advancements with regard to oxygen sensors, mentioned
above, are strong evidence that manufacturers can design both
new and durable emissions control components while meeting
California’s limited maintenance requirements.
The remaining objections, regarding specific maintenance
items, pertain mostly to the in-use limitations. Many manufac-
turers argued that to assure proper functioning, drive belts re-
quired a ‘“‘check and replace if necessary’’ maintenance instruc-
tion more frequently than every 30,000 miles.7* AMC presented
the only data supporting this position. That data consisted of
test results showing a significant decrease in belt tension after
initial operation.?” However, subsequent evidence indicated that
22 Id.; State of California Air Resources Board, staff Report No.
77-12-1, at 13 (May 26, 1977).
>> August Tr. 140.
24 Memorandum from James McNab III, to file (Mar. 17, 1978).
?> August Tr. 140-141, 146, 150-151, 188, 236, 237, 254. GM Aug.
26, 1977, letter 4. Transcript of public hearing on California waiver
requests 175 (Oct. 13, 1977) [hereinafter ‘‘October Tr.’’].
26 August Tr. 117, 161, 167-168, 228, 233, 235, 238; GM Aug. 26,
1977, letter 6-7; Toyota comments, note 21, supra, attachment I at 1;
Volkswagen and Audi’s reply to CARB proposal for changes to
regulations regarding allowable maintenance during new vehicle cer-
tification of light-duty and medium-duty vehicles 2 (Apr. 28, 1977).
*” August ir. 235.
79a
belt tension stabilizes after initial break-in, and the addition of a
pre-sale check would reduce this problem.”* Similar objections
concerning ‘‘inspect and replace if necessary’? maintenance
items were made by several manufacturers with respect to air
and fuel filters?? and by General Motors with respect to emis-
sions related hoses and tubings.*° Provisions, discussed above,
in the California regulations allow a manufacturer to recom-
mend additional maintenance for extreme driving conditions or
for safety reasons. In addition, General Motors in making its
objection apparently did not give full consideration to all of the
technological alternatives available at the time of the public
hearing.*' For these reasons, there is insufficient evidence to
support a finding based on the foregoing arguments that the al-
lowable maintenance regulations are technologically infeasible
within the remaining lead time.
Subaru contended that small, highly loaded engines, and
particularly those operating on leaded fuels, cannot run for
30,000 miles between spark plug changes.*? Another argument,
made by General Motors, centered on the need for more fre-
quent adjustments to mechanical ignition timing systems, which
GM intends to continue utilizing.*? Again, I do not find these
arguments to be persuasive due to the lack of supporting evi-
dence.
Lastly, General Motors argued that the CARB had failed
to demonstrate that the regulations are technologically feas-
** August Tr. 237-238.
?® August Tr. 228; GM Aug. 26, 1977; letter 5-6; Toyota comments,
note 20, supra, attachment I at 2.
*° August Tr. 169-174; GM Aug. 26, 1977, letter 6-7.
*' Ronald E. Kruse, ‘‘Analysis of the Technical Feasibility of the
California Allowable Maintenance Regulations’—waiver hearing,
Aug. 3—4, attachment II (November 1977) [hereinafter ‘‘EPA
Analysis’’}.
*? August Tr. 253.
*> August Tr. 183-184; GM Aug. 26, 1977, letter 4.
80a
ible.?* This contention, however, ignores the fact that the manu-
facturer has the burden of demonstrating the existence of
grounds upon which, under the criteria enumerated in section
209(b), I must deny a waiver request.*°
Based on the foregoing discussion and the analysis of my
staff,** I cannot find that there is inadequate lead time remain-
ing to permit the development and application of the requisite
technology.
Cost of Compliance. The CARB estimated that the regula-
tions would reduce maintenance costs by an amount sufficient
to offset any increase in retail costs, resulting in a net cost bene-
fit.2’7 The manufacturers did not challenge this conclusion. Sev-
eral trade associations, representing the aftermarket parts and
service industry, argued that the regulations would not result in
a cost benefit.** These arguments are not supported by data re-
futing the CARB’s conclusion. In addition, a finding that the
regulations are cost effective is not required. Accordingly, I can-
not find that the cost of complying with California’s restrictions
on allowable maintenance presents sufficient grounds for deny-
ing the waiver request.
Objections to Granting the Waiver. Ford, General Motors,
AMC, and the Motor and Equipment Manufacturers Associa-
tion all argued that California does not need restrictions on al-
lowable maintenance as they, in the eyes of the interested
** August Tr. 154; October Tr. 174.
33 40 FR 30311, 30314 (July 18, 1975).
36 EPA analysis 3-5.
7 Staff Report 77-12-1, note 22, supra, 28-30, 32-33; August Tr. 29.
** August Tr. 89-91, 194-197; ‘Comments of Automotive Service
Industry Association (ASIA) in Opposition to Waiver Request of the
California Air Resources Board Regarding Allowable Maintenance”’ 3
(July 25, 1977); ‘‘Supplemental Comments of ASIA Relative to
Waiver Requests of the California Air Resources Board Regarding
Allowable Maintenance’’ 3 (Sept. 23, 1977); Letter from Mr. Frank
Engler, Chairman, Trust for Automotive Political Education, to Mr.
Benjamin R. Jackson, Director, MSED, EPA, 1 (July 27, 1977).
ee ees _
8la
parties, will contribute to rather than alleviate California’s air
pollution problems.” In prior waiver decisions, I have addres-
sed my scope of review insofar as ‘‘accompanying enforcement
procedures’’ are concerned.*° Under section 209(b) the question
of need is only applicable to a waiver request concerning stand-
ards.
As mentioned above, several interested parties argued in
various ways that the California regulations are arbitrary and
capricious or were adopted in an arbitrary and capricious man-
ner.*' These contentions are all beyond the narrow scope of re-
** August Tr. 91-92, 133, 154, 190-191, 237; GM Aug. 26, 1977 Let-
ter 2; Statement of Ford Motor Co., ‘‘Clean Air Act Amendments of
1977—Limitations on Maintenance Adopted by California” 4 (Oct.
13, 1977) [hereinafter ‘‘Ford’s October Statement’’]; Letter from
T.M. Fisher, Director, Automotive Emission Control, General
Motors, to Mr. B. R. Jackson, [Director], MSED, EPA, (Feb. 16,
1978); ‘‘General Motors Analysis of the Reports Used by the Califor-
nia Air Resources Board to Support the Restricted Maintenance
Regulation’’ 1-8, 15 (Feb. 1978). The CARB Staff Reports and other
submissions to the public record disagreed with this contention. It
contended that given vehicle owners’ maintenance practices, improved
designs which would result from the allowable maintenance limita-
tions would result in emissions reductions. See State of California Air
Resources Board, Staff Report 77-9-2, at 1, 3-12, 19-28 (Apr. 28,
1977); Staff Report 77-12-1, note 22, supra, 1, 3-12, 19-28; CARB
Letter of Aug. 31, 1977, note 21, supra, Attachment I at 13; Letter
from Mr. Thomas C. Austin, Deputy Executive Officer, CARB, to
Mr. Benjamin R. Jackson, MSED, EPA, 1-4 (Mar. 20, 1978).
“° 43 FR 9344, 9345 (Mar. 7, 1978).
*' Motor Vehicle Manufacturers Association of the United States,
Inc., ‘A Memorandum to the California Air Resources Board Regar-
ding Proposed Maintenance Requirements”’ 1-4, 7-8 (Jan. 31, 1977)
[hereinafter ‘‘MVMA Memo”’]; Memorandum from John P. Eppel
and Helen O. Petrauskas, Ford Motor Co., to B. R. Jackson,
Presiding Officer, EPA, 24-33 (Sept. 9, 1977) [hereinafter ‘‘Ford
Sept. 9, 1977 Memo’’]; GM Aug. 26, 1977 letter 4, 8; October Tr.
176-179, 183, 185-189, 191; Supplemental Comments of ASIA, note
38, supra, 3; Ford’s October Statement 2; Letter from Michael W.
Grice, Esq., Chrysler Corp., to Mr. Benjamin R. Jackson, Director,
MSED, EPA, 2 (Oct. 28, 1977). General Motors Analysis, note 39,
supra, 15; Letter from T. M. Fisher to Mr. Benjamin R. Jackson of
Feb. 16, 1978, note 39, supra.
— —
82a
view granted to me by section 209(b)(1)(A) of the act and its leg-
islative history.‘? As prior waiver decisions have held, section
20%(b) does not give me the latitude to review procedures at the
State level, and the EPA hearing is not the proper forum in
which to raise these objections.*? Similarly, objections pertain-
ing to the wisdom of California’s judgment on various public
policy matters** are beyond my scope of review.“
The most often expressed objection to these regulations
centered on potential conflicts between the California limita-
tions on what maintenance instructions may be provided to
owners and section 207(c)(3)(A) of the act.** This section of the
act provides that the manufacturer shall provide maintenance
instructions which correspond to regulations promulgated by
the Administrator. Interested parties argued that this provision
entirely preserves this area for Federal regulation and that Cali-
fornia’s maintenance instructions are not entitled to a waiver.*’
I cannot accept this contention. A State’s right to prescribe
limitations on allowable maintenance is not preempted by the
existence of section 207(c)(3)(A). The only applicable preemp-
tion provision in the act is section 209(a); it is what prevents
States from acting on their own.** Because the California main-
tenance instruction requirements constitute a condition prece-
“2 42 U.S.C. 7543{b)(1)(A) (1977); H.R. Rep. No. 95-294, 95th
Cong., Ist Sess. 301-302 (1977).
“> 42 FR 44209, 44212 (Oct. 7, 1976).
“« Notes 38 and 39, supra; August Tr
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