Amicus Curiae Brief — Engine Mfrs. Assn. v. South Coast Air Quality Management Dist.

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No. 02-1343

IN THE

Supreme Court of the United States

OCTOBER TERM, 2002

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of -

for the Ninth Circuit

UNOPPOSED BRIEF OF AMICI CURIAE ALLIANCE OF

AUTOMOBILE MANUFACTURERS, INC., ASSOCIATION OF

INTERNATIONAL AUTOMOBILE MANUFACTURERS, INC. AND

TRUCK MANUFACTURERS ASSOCIATION IN SUPPORT OF

PETITION FILED BY ENGINE MANUFACTURERS ASSOCIATION

AND WESTERN STATES PETROLEUM ASSOCIATION

JULIE C. BECKER PROFESSOR ARNOLD W. REITZE, JR.

ALLIANCE OF AUTOMOBILE MCGLINCHEY STAFFORD, PLLC

MANUFACTURERS, INC. 6022 Munson Hill Road

1401 H Street, N.W., Suite 900 Falls Church, VA 22041

Washington, D.C. 20005 (202) 994-6908

(202) 326-5511

CHARLES H. Lockwoop, Il Counsel for Amici Curiae

ASSOCIATION OF INTERNATIONAL

AUTOMOBILE MANUFACTURERS, INC.

1001 19th Street North, Suite 1200

Arlington, VA 22209

(703) 525-7788

April 11, 2003

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QUESTION PRESENTED

Whether section 209 of the Clean Air Act, 42 U.S.C.

§ 7543, which prohibits political subdivisions of states from

regulating emissions from new motor vehicles, is violated by

local regulations dictating the emission level of vehicles that

may be purchased by private fleet owners.

RULE 29.6 STATEMENT

Pursuant to S. Ct. Rule 29.6, amicus The Alliance of

Automobile Manufacturers, Inc. (“the Alliance”) is a

nonprofit trade association of car and _light-truck

manufacturers. The Alliance has no parent company,

subsidiaries or affiliates that have issued shares to the public.

The. Association of International Automobile

Manufacturers, Inc. (“AIAM”) is a_ nonprofit trade

association of manufacturers, manufacturer-authorized

importers and distributors of motor vehicles. AIAM has no

parent company, subsidiaries or affiliates that have issued

shares to the public.

The Truck Manufacturers Association (“TMA”) is a not-

for-profit trade association representing major medium- and

heavy-duty truck manufacturers. TMA has no parent

company, subsidiaries or affiliates that have issued shares to

the public.

TABLE OF CONTENTS

Page

EE i

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Ee iv

EE l

SUMMARY OF THE CONTROVERSY. .................cccccccccee0ee0e0e. 2

SUMMARY OF AMICI CURIAE’S ARGUMENT ............0.00.... 3

EE AT a 4

I. THE DISTRICT COURT’S DECISION CONFLICTS

WITH PRIOR DECISIONS OF THE SECOND AND

FIRST CIRCUITS; THE FLEET RULES VIOLATE

THE PREEMPTION PROVISIONS OF SECTION

rrsistsasnsnunpidiaieeiaisadiesdbdannsnenttnnnessensensscensnssscesseneccesesceseee 7

Il. THE FLEET RULES ARE NOT VALID

REQUIREMENTS PURSUANT TO SECTION

TTT 12

STITT nieninneincncnenecticcncsnesencessenesssensecescoccees 14

TABLE OF AUTHORITIES

Page(s)

Cases

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

340 F. Supp. 1120 (S.D.N.Y.),

aff'd, 468 F.2d 624 (2d Cir. 1972) .........cccceeees 10

American Automobile Manufacturer Ass'n v. Cahill,

152 F.3d 196 (2d Cir. 1998).......cccccccceeeeeeeeeees 7,8

Association of International Automobile

Manufacturers, Inc. v. Commissioner,

208 F.3d 1 (Ist Cir, 2000) ..........cccccccceereeereeeeneeees 8

California ex rel. Air Resources Board v.

; Department of Navy,

431 F. Supp. 1271 (N.D. Cal. 1977),

aff'd, 624 F.2d 885 (9th Cir. 1980)............. 3,4,9

Engine Manufacturers Ass'n v. South Coast Air

Quality Management District,

158 F. Supp. 2d 1107 (C.D. Cal. 2001).......3, 8, 9

Engine Mfrs. Ass'n v. EPA,

88 F.3d 1075 (D.C. Cir. 1996) ........ccccccceceeeeeees 11

Engine Mfrs. Ass'n v. South Coast Air

Quality Management District,

309 F.3d 550 (9th Cir. 2002)..........cccccccecceeeeeeeeees 3

Geier v. Am. Honda Co.,

DUG f. 1]

Motor & Equip. Mfrs. Ass'n, Inc. v. EPA,

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

cert. denied sub nom. General Motors

Corp. v. Costle, 446 U.S. 952 (1980).......00.00.... 10

Statutes

Air Quality Act of 1967, Pub. L. No. 90-148,

SE ee I OEE ssisrsienitesaneetaincenieinnpiaiacicenetninnasinsiie 3

Cal. Health & Safety Code § 40410 .0.0.......0ccccccccccceeeeeee 2

Cal. Health & Safety Code § 40412.000.......cccccccccscsceceeeeee 2

Cal. Health & Safety Code § 40440 .000.0.....cccccccccceeeeeees 2

Cal. Health & Safety Code § 42400 .00000.......cceccccccceeees 11

Cal. Health & Safety Code § 42400.2.000.........cccccccccee 11

Cal. Health & Safety Code § 42400.3 .000..0..cccccccccceee 11

Cal. Health & Safety Code § 42400.7 ..0.......cccccccceceees 11

Cal. Health & Safety Code § 42410 .0...........cccccccceceeees 11

Clean Air Act § 176(c),

aan CI RITE EN bnseensneicciicntniiilniienaititenataina 13

Clean Air Act § 177,

Ee 4

Clean Air Act § 182(b)(3),

i 13

Clean Air Act § 182(b)(4),

42 U.S.C. § 751 La(D)(4) .occccccssceccsssseesssseesesseveee 12

Clean Air Act § 182(c)(1),

es SE 12

Clean Air Act § 182(c)(4)(A),

4B USB. § TSU LAE IAIA) onccccccccvescesccesccescseccees 7

Clean Air Act § 182(c)(5),

tl 13

Clean Air Act § 182(d)(1),

ee 13

Clean Air Act § 202, :

ae iP UIE cicereenieiteniennitsnntonsinetininnnnevecmnaneneel 4

Clean Air Act § 206,

ee 4

Clean Air Act § 209,

A ee 3

Clean Air Act § 209(a),

se Oe CD cecinsrtensnctnemeneneecnel 4,7

Clean Air Act § 209(b),

ies 0 Ce ctececetenrssenermesememeeen 5

Clean Air Act § 209(d),

eee 7

Clean Air Act § 216(3),

ee 11

Clean Air Act § 241(2),

Ree 7

Clean Air Act § 246(a),

GB GBA. © TEED cccesssnsscssssssssssssevsesssssessssssenees 6

Vil

Other Authorities

64 Fed. Reg. 46,849 (Aug. 27, 1999)... cccecccceeeeeeeeees 7

Armold W. Reitze, Jr., Transportation-Related

Pollution and the Clean Air Act's

Conformity Requirements,

13 NAT. RESOURCES & ENV’T. 406 (1998)....... 13

Arnold W. Reitze, Jr., AIR POLLUTION

CONTROL LAW: COMPLIANCE AND

ENFORCEMENT 308 (2001) ..............:c0ccececeeseeeeeees 5

Arnold W. Reitze, Jr., Federalism and the

Inspection and Maintenance Program

Under the Clean Air Act,

Fes ts Ce I witnenectcnrrnnettntanninen 12

Arnold W. Reitze, Jr., Mobile Source Air

Pollution Control,

6 ENVTL. LAW. 309 (2000) .....c.ccccccccssecssseeesseeeon 3

8 ES Ee el ee es eee ee

S. Rep. No. 89-192 (1965) ...ccccccsscccsssecssssseessssesssssesesneeen 9

INTEREST OF AMICI

Amici Alliance of Automobile Manufacturers, Inc.,

Association of International Automobile Manufacturers Inc.,

and Truck Manufacturers Association seek leave to file this

brief in support of Petitioners and in support of reversing the

decision of the district court.! Amici’s members manufacture

or distribute virtually all automobiles and trucks that are sold

in the United States. For more than two decades the sale of

these new motor vehicles has been subject to federal air

pollution control regulations and, within the State of

California, to emissions rules adopted and enforced by the

California Air Resources Board.

The federal and California vehicle emissions control

requirements for new motor vehicles were adopted and

enforced under the provisions of Title II of the Clean Air Act

(“CAA”) which preempts any other emission-related

regulation of new vehicles by other authorities. Amici and

their members have a vital interest in the proper enforcement

of the preemption provisions of the CAA applicable to the

purchase and sale of new motor vehicles. The federal district

court’s decision in this case represents a dramatic and

inappropriate departure from long-standing interpretations of

the CAA. If allowed to stand, the decision will disrupt the

statutory framework of the CAA and will substantially

adversely affect the amici’s members nationwide.

! The parties have consented to the filing of this brief in letters that are

on file in the Clerk’s office. The preparation of this brief was entirely

funded by the Alliance, AIAM and TMA, and the brief was drafted by

their counsel. S. Ct. R. 37.6.

a .

SUMMARY OF THE CONTROVERSY

On June 16, 2000, August 18, 2000, and October 20,

‘ 2000, California’s South Coast Air Quality Management

District (““SCAQMD” or “management district”) adopted six

rules known as the “Fleet Rules.” SCAQMD is one of

thirty-five local air pollution control agencies of the State of

California, established under the California Health and

Safety Code §§ 40410, 40412, whose jurisdiction is the Los

Angeles metropolitan area and whose powers include the

right to adopt rules that are not in conflict with state and

federal law. See Cal. Health & Safety Code § 40440. The

Fleet Rules mandate that certain public and private fleet

operators acquire only certain types of vehicles as specified

by SCAQMD when replacing their fleet vehicles. The

approved vehicles must be certified to the most stringent

categories of California emissions standards. Thus, some

fleet owners in the SCAQMD are prohibited from

purchasing various vehicles manufactured by amici’s

members that are approved for sale in California. Three of

the rules apply only to public fleet operators; three apply to

both public and private fleet operators. These regulations

seek to have fleet operators purchase only alternative-fuel

vehicles, which is defined to mean only those using engines

petroleum gas (propane), methanol, electricity, or fuel cells.’

Hybrid-electric and dual-fuel vehicles that use diesel fuei

may not be purchased.

2 Fleet Rule 1193 applies to public and private solid waste collection

fleets with 15 or more vehicles. Fleet Rule 1194 applies to public and

private fleet operators with 15 or more vehicles used to transport

passengers from commercial airports located in SCAQMD's jurisdiction.

Fleet Rule 1186.1 applies to public and private sweeper fleet operators

having 15 or more vehicles.

The petitioners for certiorari challenged the Fleet Rules

in the United States District Court for the Central District of

California. The court in Engine Manufacturers Ass'n vy.

South Coast Air Quality Management District, 158 F. Supp.

2d 1107 (C.D. Cal. 2001) (“EMA”), upheld the Fleet Rules

because they were a restriction on the purchase and lease, not

a restriction on the sale of vehicles by fleet operators. /d. at

1117. The court held that the Fleet Rules do not set a

standard relating to the control of emissions, which would

violate the CAA’s section 209 preemption provision,

because they do not impose any numerical control on new

vehicles, but merely regulate which previously certified

vehicles may be purchased. /d. The case was appealed to

the U.S. Court of Appeals for the Ninth Circuit, which

summarily affirmed the district court without elaboration.

Engine Mfrs. Ass'n v. South Coast Air Quality Management

District, 309 F.3d 550 (9th Cir. 2002).

SUMMARY OF AMICI CURIAE’S ARGUMENT

The effect of these rules is to change more than three

decades of mobile source air pollution law. Since 1967 the

CAA has limited imposition of new motor vehicle emissions

standards to federal standards or, since 1970, to California

state standards approved by the U.S. Environmental

Protection Agency (“EPA”). See Air Quality Act of 1967,

Pub. L. No.-90-148, § 208, 81 Stat. 485, now codified at

CAA § 209, 42 U.S.C. § 7543.5 The policy behind these

requirements is described in California ex rel. Air Resources

Board v. Department of Navy, 431 F.Supp. 1271, 1285

(N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th Cir. 1980). There

the court held that

3 See generally Amold W. Reitze, Jr., Mobile Source Air Pollution

Control, 6 ENVTL. LAw. 309 (2000).

The reasons given for the enactment of the [(CAA’s

motor vehicle] preemption provision can be

summarized as follows: to protect the manufacturer

against having to build engines which would comply

with a multiplicity of standards; to protect the vehicle

owner from having to deal with different standards in

each state in which he drives; to avoid the

unnecessary duplication of federal standards; to avoid

‘unnecessary expense’ to the owner; and generally to

avoid ‘chaos’ and ‘confusion.’

Id. (internal quotation and citation omitted). The Fleet Rules

create the very conditions the preemption policy was

designed to prevent.

The position of the amici curiae is that the district court’s

opinion makes the preemption provision of the CAA

meaningless. The whole purpose of the preemption language

is to keep political subdivisions of states out of the business

of regulating emissions from new motor vehicles. The

district court’s opinion relies on the fictional premise that

restrictions on what buyers may purchase do not restrict what

manufacturers may produce, a premise that ignores common

sense and misreads the law. If the CAA’s preemption

provision can be evaded by using local regulation banning

the purchase of vehicles not meeting “local requirements,”

there is no effective federal preemption of new motor vehicle

emission standards. The door will be opened to a plethora of

new vehicle emission regulations by local governments.

THE CLEAN AIR ACT

Under the CAA, new motor vehicles and new motor

vehicle engines are subject to a comprehensive program to

reduce emissions through technological improvements. See

CAA §§ 202, 206. Federal law preempts state or local

control of new motor vehicles. Section 209(a), 42 U.S.C.

§ 7543(a), provides “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....”” (Emphasis added.)

The only exception to the preemption provision

described above is found in section 209(b), 42 U.S.C.

§ 7543(b). This section provides a waiver for the State of

California that allows the State to set its own standards as

long as the standards are at least as strict as the federal

standards and they are approved by the Administrator of

EPA as meeting the statutory requirements. After a waiver is

granted, compliance with the California standards is

considered to be compliance with the federal standards.

California responded to section 209(b) when its

California Air Resources Board (“CARB”) enacted two

motor vehicle emissions regulations. The first regulation

applies to passenger cars and medium-duty vehicles

(including some diesel-fueled vehicles) and is known as the

Low Emissions Vehicle (“LEV”) Program. It creates four

tiers of increasingly stringent emission _ standards:

(1) transitional low-emission vehicles (“TLEVs”); (2) low-

emission vehicles (“LEVs”); (3) ultra-low-emission vehicles

(“ULEVs”); and (4) zero-emission vehicles (“ZEVs”).4 The

average emissions from the mix of vehicles in the four tiers

must meet the overall “fleet average” required for a specified

year. Manufacturers that perform better than the fleet

average earn credits that may be marketed. Over time, a

progressively cleaner mix of vehicles must be sold. CARB’s

second regulation is its Urban Bus Program. CARB permits

bus operators to select one of two compliance paths when

purchasing new buses: (1) a diesel path or (2) an alternative

fuel path.

4 See Amold W. Reitze, Jr., AIR POLLUTION CONTROL LAw:

COMPLIANCE AND ENFORCEMENT 308 (2001).

The management district’s Fleet Rules differ from the

state’s regulations because the Fleet Rules allow the

purchase of only a subset of the LEVs or ULEVs, or the

purchase of alternative-fueled vehicles that are designated by

the SCAQMD. CARB-certified diesel-fueled engines may

not be purchased. SCAQMD’s Rule 1192 does not give

transit vehicle operators the option to purchase clean diesels,

thereby taking away the state’s “diesel path” and forcing

fleet owners down the “alternative fuel path.” In short, many

vehicles certified to meet all of California’s emission

requirements are unable to be purchased by fleet operators

within the management district, because SCAQMD’s Fleet

Rules regulate emissions of fleet vehicles.

This SCAQMD approach flies in the face of the

preemption language of section 209(a), as we will discuss in

more detail below. It is also inconsistent with the federal

policy expressed in section 177 of the CAA, 42 U.S.C.

§ 7507. Section 177 provides states with a nonattainment

area the option to adopt, in their SIP, the California standards

for which an EPA waiver has been granted. Any California

standard adopted by another state must be adopted in its

entirety. It must be identical to the California standard and

must provide at least two years, prior to the model year to

which it first applies, for the manufacturers to comply. In

1990 Congress amended section 177 to make it clear that no

state adopting California standards may “prohibit or limit,

directly or indirectly, the manufacture or sale of a new motor

vehicle ... that is certified in California as meeting California

standards.” Thus, while no sovereign state is allowed to

impose standards that differ from the applicable federal or

California standard, the Ninth Circuit would not so constrain

the management district.°

5Section 246(a), 42 U.S.C. § 7586(a), requires states with populations of

250,000 or more in a serious or worse ozone nonattainment area (and in

(Continued...)

Section 209(d), 42 U.S.C. § 7543(d), provides, “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.” This section was intended to make

it clear that state and local governments maintain their

traditional control over in-use vehicle operation. As we will

explain in detail, the Fleet Rules impose prohibited controls

on new motor vehicles and are not the type of regulations

that may be imposed by section 209(d).

I. THE DISTRICT COURT’S DECISION

CONFLICTS WITH PRIOR DECISIONS OF THE

SECOND AND FIRST CIRCUITS; THE FLEET

RULES VIOLATE THE PREEMPTION

PROVISIONS OF SECTION 209.

Section 209(a), 42 U.S.C. § 7543(a), requires states or

their political subdivisions not to adopt or attempt to enforce

“any standard relating to the control of emissions from new

motor vehicles.” Unlike the Ninth Circuit, the First and

Second Circuits have held that the use of the word “relating”

indicates standards are to be interpreted broadly. The

Second Circuit in American Automobile Manufacturers

Ass'n v. Cahill, 152 F.3d-196 (1998), held that New York’s

certain carbon monoxide nonattainment areas) to establish a clean-fuel

vehicle program for fleets. However, section 182(c)(4)A), 42 U.S.C.

§ 75lla(c\4)(A) allows a substitute program to be adopted if EPA

approves. California opted out of the clean-fuel vehicle program by

substituting an LEV program and an Urban Bus Program approved by

EPA at 64 Fed. Reg. 46,849 (Aug. 27, 1999). Because California is not

participating in the section 246 program, the SCAQCD Fleet Rules

cannot be based on that section. If California was using section 246, the

definition found in CAA § 241(2), 42 U.S.C. § 7581(2), allows the use of

diesel-fueled vehicles, but the use of such vehicles is prohibited by the

SCAQMD’s Fleet Rules.

“ZEV sales requirement must be considered a standard

‘relating to the control of emissions.’” /d. at 200. In

Association of International Automobile Manufacturers, Inc.

v. Commissioner, 208 F.3d 1, 6 (2000), the First Circuit held

the Massachusetts ZEV requirements were emissions

standards. Moreover, the Second Circuit defined a standard

relating to the control of emissions as “regulatory measures

intended to lower the level of auto emissions.” Cahill, 152

F.3d at 200. Emissions standards are not limited to

quantitative limits on emissions. In both of these cases, the

ZEV regulations were held to be standards within the

meaning of section 209(a) because they serve no “purpose

other than to effect a general reduction in the level of

emissions” from new motor vehicles. 152 F.3d at 200; 208

F.3d at 6.

The SCAQMD Fleet Rules clearly “relate to” the

“control of emissions from new motor vehicles.” Indeed,

control of emissions is the entire purpose and effect of the

SCAQMD Fleet Rules. EMA, 158 F. Supp. 2d at 1114

(noting that Fleet Rules are “an effort to reduce public

exposure to motor vehicle pollution”). There can be no

doubt that the Fleet Rules are in “connection with” control of

emissions, or that their “purpose and effect ... is to effect a

quantitative reduction in emissions.” Commissioner, 208

F.3d at 7. Moreover, SCAQMD can hardly dispute that its

Fleet Rules make “reference to” the control of emissions

given that they incorporate a subset of vehicles approved by

the CARB for purposes of emissions control. The fact that

the management district’s Rules expressly limit the purchase

of vehicles to those that are certified to a subset of the

applicable California numerical emission limits, while

prohibiting the purchase of vehicles that comply with other

valid California and federal emission limits, necessarily

means that the Rules are “standards” relating to control of

vehicle emissions.

In EMA, the district court reasoned that while the state

has the sole authority to establish emission standards that

apply to the sales of a class of vehicles, a local government

may nevertheless prohibit their purchase. This interpretation

makes a mockery of section 209’s preemption language.

The district court’s analysis would allow any sales

requirement concerning new motor vehicles that is subject to

federal preemption to be avoided if the local regulation was

drafted to be a ban on the purchase of such vehicles. The

Second Circuit’s decision in Cahill and the First Circuit's

decision in Commissiomer are purportedly distinguished

because they involved restrictions on the sale of vehicles as

opposed to so-called purchase prohibitions. This distinction

is semantic nonsense. Every new vehicle transaction

involves the purchase of the vehicle by the purchaser and the

sale of the vehicle by the seller. Thus, the sale and purchase

of a new motor vehicle are two sides of the same coin. One

cannot occur without the other, and government cannot

regulate one without regulating the other. When Congress

preempts emissions-related restrictions on the sale of new

motor vehicles, it necessarily preempts emissions-related

restrictions on the purchase of new motor vehicles.®

Such a distinction leads to absurd results. For example,

without purporting to impose any restrictions directly on

manufacturers, one local jurisdiction could require twenty

percent of its population to purchase liquefied natural gas

powered engines and another local jurisdiction could require

preemption to protect both vehicle manufacturers and purchasers from

confusion and unnecessary burdens. See S. Rep. No. 89-192, at 6 (1965)

(state and local regulation of vehicle emissions would “result in chaos

insofar as manufacturers, dealers, and users are concerned.”), see also

Callifornia ex rel. Air Resources Board v. Department of Navy, 431

F.Supp. 1271, 1285 (N.D. Cal. 1977), afd, 624 F.2d 885 (9th Cir.

1980) (noting same).

fifty percent of its population to purchase methanol powered

engines and ban the purchase of liquefied natural gas

engines. This process could play itself out time and again

across the country (or among the other thirty-four

management districts in California), with each local

government establishing a different set of purchase

requirements unique to its particular area. It is this

possibility that Congress explicitly sought to prevent—‘an

anarchic patchwork of federal and state regulatory

programs....” Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627

F.2d 1095, 1109 (D.C. Cir. 1979), cert. denied sub nom.

General Motors Corp. v. Costle, 446 U.S. 952 (1980).

Congress did not limit preemption to restrictions on

vehicle “sales.” The preemptive reach of section 209(a)

covers any “standard” for “new vehicles.” Any distinction

between sale restrictions and purchase restrictions is

irrelevant provided that a purchase restriction is a “standard”

relating to control of “new” motor vehicle emissions.

Congress intended to preempt comprehensively state and

local regulation of emissions from new motor vehicles, while

allowing States to play a role in regulating “in-use”

emissions after the vehicles are in the possession of

consumers. Allway Taxi, Inc. v. City of New York, 340

F. Supp. 1120, 1124 (S.D.N.Y.), aff'd, 468 F.2d 624 (2d Cir.

1972) (section 209(a) preemption does not preclude States or

their political subdivisions from regulating “the use or

movement of motor vehicles after they have reached their

ultimate purchasers”). The explicit statutory distinction

between the regulatory power of state and local governments

over “new” and “in-use” vehicles was intended to

“postpon[e] state regulation so that the burden of compliance

will not fall on the manufacturer.” Engine Mfrs. Ass'n v.

EPA, 88 F.3d 1075, 1086 (D.C. Cir. 1996).’ Because the

SCAQMD rules apply to “new” vehicles, they are expressly

preempted by section 209(a).*

In addition to preempting emission standards, section

209(a) provides no state shall require any other approval

relating to the control of emissions from new motor vehicles

as a condition precedent to the initial sale, titling or

registration of a new motor vehicle. One cannot register a

vehicle unless there first has been a sale to the consumer.

Such a sale would by its very nature require a purchase. But,

if a purchase is made of a vehicle with emissions that do not

meet SCAQMD’s Fleet Rule, the purchaser—prior to its first

registration—may face serious penalties. Section 42400 of

the California Health and Safety Code makes any violation

of a District Rule a misdemeanor which subjects the violator

to a penalty up to $1,000 per day and imprisonment up to six

months. If the violation is deemed “knowing,” the penalty

can be up to $40,000 per day and up to oné year in prison.

See Cal. Health & Safety Code § 42400.2. If the violation is

“willful and intentional,” the penalty can go to $75,000 per

day and result in up to one year in prison. See id. § 42400.3.

Injunctive relief and administrative penalties also may be

used. See id. §§ 42400.7 and 42410. Thus, SCAQMD’s

Fleet Rules impose a clear “condition precedent” to the sale

of a motor vehicle and carry substantial penalties for

’ The Act defines a “new” motor vehicle as one whose “title has never

been transferred to the ultimate purchaser,” such as a retail customer or a

leasing company. CAA § 216(3), 42 U.S.C. § 7550(3).

* Even if the SCAQMD Fleet Rules were not preempted expressly by

section 209(a), they would still be implicitly preempted, under principles

of conflict preemption, because they “prevent or frustrate the

i of a federal objective,” Geier v. Am. Honda Co., 529

U.S. 861, 873-74 (2000). For SCAQMD to go outside of the federal

approval process frustrates the object of Clean Air Act preemption.

noncompliance, clearly violating the second sentence of

section 209(a).

il. THE FLEET RULES ARE NOT VALID

REQUIREMENTS PURSUANT YO SECTION

209(d).

By way of clarifying the preemption provision in section

209%(a), section 209(d) makes it clear that states or their

political subdivisions retain the right to “otherwise” regulate

registered or licensed motor vehicles. The discussion above

shows, that the Fleet Rules are emission standards and are

requirements applicable to new motor vehicles prior to their

initial registration. The Fleet Rules are not the kind of rules

allowed by section 209(d) to be imposed by political

subdivisions of the state.

With respect to vehicle emissions, local governments

may have a legitimate role in helping to enforce emissions

requirements imposed at the state level on in-use vehicles.

The most important example of this is the inspection and

maintenance program (I/M) required in ozone nonattainment

areas by section § 182(b)(4), 42 U.S.C. § 751 la(b)(4).9 This

program has characteristics common to all programs used by

States to control emissions from in-use vehicles. It applies to

all covered vehicles regardless of the emissions measured as

part of the engines original certification, and it applies only

‘

9 A more stringent enhanced I/M program is required in serious or worse

ozone nonattainment areas by section 182(c)(1), 42 U.S.C. § 751 la(c\(1)

and in moderate or worse carbon monoxide nonattainment areas with a

design value greater than 12.7 parts per million by section 187(a)(6). See

generally Arnold W. Reitze, Jr., Federalism and the Inspection and

Maintenance Program Under the Clean Air Act, 28 Pac. LJ. 1461

(1996).

to wehuclles that have been purchased and registered to

cubmsmumneerts.. '

Am evalwation of the current in-use motor vehicle

programs reimlorces the conclusion that the Fleet Rules are

emission stewdage tha? miay not be imposed by local

governments. indeed. mome of the in-use motor vehicle

control programs wegwiate the purchase or sale of any classes

of vehicles based on their potential emissions. A local

government prohibition on purchasing certified vehicles is

wholly inconsistent with existing in-use programs.

SCAQMD’s overt attempt to impose emissions-related

restrictions on fleet owners prior to vehicle registration

violates section 209’s preemption provision and the explicit

Congressional policy behind it.

10 Similar coverage-of registered vehicles is found in the gasoline vapor

recovery requirements of section 182(b)(3), 42 U.S.C. § 751 la(b)(3),

transportation controls imposed by section 182(c)(5), 42 U.S.C.

§ 75ila(c\S) and the vehicle mile reduction requirements of section

182(¢ 1), 42 US.C. § 75ila(d,l). The conformity provisions of

séction !76(c), 42 U.S.C. § 7506, require transportation plans and

programs to be consistent with a transportation emissions budget for the

aggregate emissions from motor vehicles in the area covered by the state

implementation _ plan. See generally Armold W. Reitze, Jr,

Transportation-Related Pollution and the Clean Air Act's Conformity

Requirements, 13 NAT. RESOURCES & ENV’T. 406 (1998).

CONCLUSION

Prohibiting purchases of vehicles whose emissions

exceed a certain level is no different in its purpose and effect

than prohibiting sales of vehicles whose emissions exceed

that same level. The management district’s rules prohibiting

private parties from purchasing vehicles that can otherwise

be lawfully sold in California are preempted by the CAA.

The decision below should therefore be reversed.

Respectfully submitted,

JULIE C. BECKER PROFESSOR ARNOLD W. REITZE®, JR.