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

No. 02-1343 | apr 14 208

In the Supreme Court of the Gnit 5

ENGINE MANUFACTURERS ASSOCIATION,

ET AL.,

Petitioners,

Vv.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT,

ET AL.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN TRUCKING

ASSOCIATIONS, INC., THE AMERICAN ROAD &

TRANSPORTATION BUILDERS ASSOCIATION, AND

THE TAXICAB, LIMOUSINE & PARATRANSIT

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

ROBERT DIGGES. R. Roy T. ENGLERT, JR.*

ATA Litigation Center MAX HUFFMAN

2200 Mill Road Robbins, Russell, Englert,

Alexandria, Virginia 22314 Orseck & Untereiner LLP

(703) 838-1065 1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

* Counsel of Record

a

ny \

— -

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......ccsccccccccccccees ii

INTEREST OF THE AMICI CURIAE ............-5+5: 1

EE one edekeeth eee ieeesececeuneses 2

SUMMARY OF ARGUMENT ..........---050+2ee0e: 5

CE eee EET eT eee ee ee 6

I. IN FAILING TO INTERPRET SECTION 209(a)

AS PREEMPTING THE SCAQMD FLEET

RULES, THE NINTH CIRCUIT

CONTRAVENED THE PLAIN AND

UNAMBIGUOUS LANGUAGE AND PURPOSE

OF THE CLEAN AIR ACT ..............7.. 6

I. THE NINTH CIRCUIT’S DECISION

INTRODUCES CONFUSION INTO A

FEDERAL REGULATORY SCHEME THAT

HAS HERETOFORE BEEN CLEARLY

UNDERSTOOD BY EVERY COURT TO

INTERPRET THE CLEAN AIR ACT ........ 12

Il. THE RAMIFICATIONS TO THE CLEAN AIR

ACT REGULATORY SCHEME OF

ALLOWING THE UNCERTAINTY CREATED

BY THE NINTH CIRCUIT’S DECISION TO

REMAIN NECESSITATE A GRANT OF

GREED ov cacocccsesescecececcosees 16

RT Eee So cece an

il

TABLE OF AUTHORITIES

Page(s)

Cases

Allway Taxi, Inc. v. New York, 340 F. Supp.

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

CBO Cor. 1GTED 2 nc ccccsevececveccossessucseues 17

American Automobile Mfrs. Ass'n

v. Cahill, 152 F.3d 196 (2d Cir. 1998) ...... 13, 14, 16

Association of Int'l Automobile Mfrs., Inc.

v. Commissioner, Massachusetts

Department of Env’tl Protection,

208 F.3d 1 (Ist Cir. 2000) ...........-e ee eee passim

California v. FERC, 495 U.S. 490 (1990) .........005-. 8

Charas v. Trans World Airlines, Inc.,

160 F.3d 1259 (9th Cir. 1998) (en banc) .......... 10

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

ti. PPP!” 7

Direct Automobile Imports Ass'n v. T. ownsley,

804 F.2d 1408 (Sth Cir. 1986) ...........-05 00s 14

Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075

(DAC. Cle. 1906) on cccccccccsecvcssesescess passim

Engine Mfrs. Ass'n v. Huston, 190 F. Supp. 2d

922 (W.D. Tex. 2001), vacated as moot,

No. 01-50819 (Sth Cir. Mar. 7, 2002).......... 11,15

Exxon Mobil Corp. v. EPA, 217 F.3d 1246

(Dla Cle. FETT)... cc ccccvcccecsvesecssnscsaneun 7

Georgia Automobile Importers Compliance

Ass'n v. Bowers, 639 F. Supp. 352

OLD. Ga. IGE .. ccccsosccessecccseceneeeens 14

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ........... 8

ill

TABLE OF AUTHORITIES—Continued

Page(s)

Morales v. Trans World Airlines, Inc., 504

TE, BRO GIIOE oc cc ccccccccccccccccccccoecs passim

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

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

GOB ULE, FEB CIGEED cc ccccccccccccccccccces 13,17

Motor Vehicle Mfrs. Ass'n v. New York State

Dep't of Env’tl Conservation, 17 F.3d 521

CBG, BIDE .n cc cccccccccccccccccccecccccess 17

New York State Conf. of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514

SE OE cc ccccccccsecccccccscccecccs 8, 10

Northwest Airlines, Inc. v. Duncan, 531

PPT rrTrrrririi ree 10

Shaw v. Delta Air Lines, Inc., 463 U.S.

PO ccccccccwccccccccccccceccccees 9,10, 11

Sims v. State of Florida, Department of

Highway Safety & Motor Vehicles, 862

F.2d 1449 (11th Cir. 1989) (en banc) ............. 14

Sullivan v. Stroop, 496 U.S. 478 (1990) ..........655: 15

Washington v. General Motors Corp., 406

U.S. 109 (1972)....... SELECTS eT TITEL 7

Statutes and Regulations:

PTE ccc cc recccccccccccccvecccccccccess 8

FOUBL. 6 DGG 00 ccc ccccccicccccccccvesecccess 8

POTIBE BTEEF cc cccccccccccccccccccccccccscees 15

vats Tom .” \ |) Se 2,7

Nee cs iscasssnssoceces: 15

iV

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 7543(e2A)(B) . . «6 ee ec eee eee 15

49 U.S.C. §41713(OM1) 2... ee eee eee eee eens 9

40 C.F.R. § 85.1603(cM2) .. 1... 2 eee cee eee ee eee 16

Miscellaneous:

H.R. Rep. No. 728, 90th Cong., Ist Sess.,

reprinted in 1967 U.S.C.C.A.N. 1938 ......... passim

www.aqmd.gov/rules/html/rl 186-1.html............--- 2

INTEREST OF THE AMICI CURIAE'

(ATA) is a nonprofit corporation organized under the laws of

the District of Columbia. ATA is the national trade association

of the trucking industry, with more than 2000 direct members.

As an umbrella organization for state associations and national

trucking conferences, ATA represents tens of thousands of

motor carriers and suppliers to motor carriers. ATA regularly

advocates the trucking industry’s concerns before the courts and

federal administrative agencies.

Amicus curiae American Road & Transportation Builders

Association (ARTBA) is a not-for-profit trade association

headquartered in Washington, D.C. ARTBA represents the

collective interests of all sectors of the U.S. transportation

construction industry in matters before the courts, Congress, the

Executive Branch, and administrative agencies. ARTBA acts

as an umbrella group for more than 5000 members of the

imi ns Toxic, Li ; & P

Association (TLPA) is a not-for-profit trade organization for the

private passenger transportation industry . TLPA’s membership

includes approximately 1100 taxicab companies, executive

sedan and limousine services, airport shuttle fleets, non-

emergency medical transportation companies, and paratransit

services. TLPA is the primary legislative advocate and

education resource for the private ground transportation

industry.

' Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent

have been lodged with the Clerk of the Court. Pursuant to Rule 37.6

of the Rules of this Court, amici curiae state that no counsel for a

party has written this brief in whole or in part and that no person or

entity, other than the amici curiae, their members, or their counsel,

has made a monetary contribution to the preparation or submission of

2

ATA, ARTBA, and TLPA believe that the Ninth Circuit’s

decision incorrectly decided the issues raised in the petition for

certiorari and will cause extraordinary harm if those issues are

not addressed by the Court. The Ninth Circuit’s decision opens

the door to the creation of “patchwork” standards for emissions

control by States and their various political subdivisions, in

direct contravention of the express preemption of state and local

regulation by Section 209(a) of the Clean Air Act, 42 U.S.C.

§ 7543(a).

Members of ATA, ARTBA, and TLPA will be deeply

affected by the Ninth Circuit’s failure to overturn the South

Coast Air Quality Management District (SCAQMD) standards

at issue.

STATEMENT

Section 209(a) of the Clean Air Act, 42 U.S.C. § 7543(a),

provides (emphasis added):

No State or any political subdivision thereof shall adopt or

attempt to enforce any standard relating to the control of

emissions from new motor vehicles or new motor vehicle

engines subject to this part. No State shall require

certification, inspection, or any other approval relating to

the control of emissions from any new motor vehicle or

new motor vehicle engine as condition precedent to the

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

motor vehicle, motor vehicle engine, or equipment.

Notwithstanding Section 209(a), SCAQMD - a political

subdivision of the State of California — has enacted six “Fleet

Rules,” which are restrictions on the choice of vehicles available

for fleet operators, including members of amici ATA, ARTBA,

and TLPA, to purchase or lease. The Fleet Rules all have the

stated purpose of “reduc[ing] air toxic and criteria pollutant

emissions,” e.g., Rule 1186.1, www.aqmd.gov/rules/html/rl 186-

1.html, and define permissible vehicles for fleet operators to

purchase by the use of differing levels of emission-control

technologies.

A

3

Rule 1186.1 regulates public and private fleets of street

sweepers, and requires that covered fleet operators purchase or

lease new street sweepers that are powered by alternative fuel

sources. See Pet. App. 18a. For a limited time, a fleet operator

may also qualify for an exception and be permitted to operate

diesel-powered street sweepers fitted with emission-reducing

exhaust control devices.

Rule 1191 regulates public fleets of passenger cars, light-

duty vehicles, and medium-duty vehicles, and affects public

fleet operators within SCAQMD with fleets of 15 or more

vehicles. Fleet operators are required to purchase or lease new

vehicles from a list, promulgated by the California Air

Resources Board (CARB), that includes Low Emission Vehicles

(LEV), Ultra Low Emission Vehicles (ULEV), Super-Ultra Low

Emission Vehicles (SULEV), or Zero-Emission Vehicles

(ZEV). Fleet operators also have the discretion to purchase

alternative-fuel vehicles that CARB has certified as meeting, or

exceeding, ULEV emissions standards. See Pet. App. 16a.

Rule 1192 applies to public fleets of urban buses with 15 or

more vehicles. Except as specifically exempted, fleet operators

are required to acquire alternative fuel vehicles that meet

emissions requirements spelled out in the California Code of

Regulations. See Pet. App. 16a-17a.

Rule 1193 applies to public and private fleets of solid waste

collection vehicles with 15 or more vehicles. Except as

exempted, fleet operators replacing or adding new vehicles to

the fleet must purchase or lease alternative-fuel solid waste

collection vehicles. See Pet. App. 17a. Operators of covered

fleets with fewer than 50 vehicles may also purchase or lease

dual-fuel vehicles that meet CARB emission standards, and

within the first year the Rule is in effect operators of larger

fleets may also purchase or lease dual-fuel vehicles.

Rule 1194, applying to public and private fleets providing

passenger transportation service from commercial airports,

requires graduated increases in percentages of the total of new

4

fleet vehicles purchased or leased to be from the three most

stringent categories of LEVs, according to the emissions

standards promulgated by CARB. See Pet. App. 17a-18a. New

purchases or leases by a fleet operator subject to the Rule must

be either ULEVs, SULEVs, or ZEVs.

Rule 1196 applies to public fleets of heavy-duty vehicles,

and requires that all new additions to the fleet will be

alternative-fuel vehicles, dual-fuel vehicles, gasoline-powered

vehicles, or, if the fleet operator can demonstrate the technical

infeasibility of the prior three alternatives, a diesel-powered

vehicle with an approved control device. See Pet. App. 18a-

19a. To qualify for the fourth option, the fleet operator must

seek special certification from SCAQMD before purchase or

lease of the new diesel-fuel vehicle. Each option under Rule

1196 must meet CARB standards for emissions applicable to the

particular type of vehicle.

The SCAQMD Fleet Rules were promulgated without

following any procedure provided under the Clean Air Act for

receiving a waiver from federal preemption.

As is explained in the petition for a writ of certiorari,

petitioners brought suit to enjoin the Fleet Rules on the ground

that they are preempted by Section 209(a) of the Clean Air Act.

District Judge Florence-Marie Cooper rejected that challenge in

its entirety, and the Ninth Circuit affirmed on the basis of the

district court’s opinion. Taking a non-textual approach to

interpretation of Section 209(a) — which preempts every

“standard relating to the control of emissions” — the courts

below attached dispositive significance to the fact that “(t]he

Rules regulate the purchasing and leasing, not the sale, of

vehicles by fleet operators” (Pet. App. 21a) and “therefore do

not run afoul of” what the courts deemed to be “Congress’s

purpose behind motor vehicle preemption” (ibid.). But see Pet.

App. 41a (expressing view of the United States that such an

approach to construing Section 209(a) is impermissible).

5

SUMMARY OF ARGUMENT

Under the Ninth Circuit’s ruling, any State or political -

subdivision of a State can adopt and attempt to enforce

standards relating to the control of emissions from new motor

vehicles or new motor vehicle engines, in direct derogation of

the language and intent of Section 209(a) of the Clean Air Act,

as long as the State or political subdivision regulates purchases

rather than sales. The language of Section 209(a), the

preemption section of Title II of the Clean Air Act, could not be

clearer in prohibiting that result. This Court has interpreted

identical language to state a broad preemptive purpose. Such

broad preemption in this case unquestionably reaches the

SCAQMD Fleet Rules. The structure of Section 209, where the

preemption section resides, supports the broad interpretation of

the section’s preemptive scope to reach the SCAQMD Fleet

Rules. The language and structure obviate any need to look to

the legislative history of Section 209, but that, too, supports the

conclusion that the SCAQMD Fleet Rules are a preempted

exercise of state regulatory authority.

The Ninth Circuit has in this case introduced confusion into

a legislative scheme where none previously existed. Every

other circuit to address the issue has understood the breadth of

Section 209(a) preemption. District court decisions that have

not been subject to appellate review have also reached the

correct conclusion. Until Judge Cooper’s opinion for the district

court, and the Ninth Circuit’s affirmance on the basis of that

opinion, there was no debate that, except for the State of

California — under a limited waiver, not complied with here —

States and their political subdivisions could not promulgate

separate standards relating to the control of emissions from new

motor vehicles and motor vehicle engines. The Ninth Circuit’s

decision in this case utterly upends the legislative scheme.

The overwhelming national importance of this issue

supports a grant of certiorari to resolve the extent of preemption

under Section 209(a). The potential effect of allowing the Ninth

Circuit’s decision to stand is difficult to overstate. Each

6

individual State or political subdivision of a State within the

Ninth Circuit is now free to promulgate its own emissions

standards, subject only to the limitation that it apparently may

not implement a technology-forcing requirement. Amici curiae

have large numbers of members that will (if the decision below

stands) be forced to incur additional costs to their businesses to

comply with the SCAQMD rules, and untold additional costs

should the likelihood of subregion-by-subregion regulation

come to pass. The Court should take this opportunity to clarify

the scope of Section 209(a) preemption.

ARGUMENT

I. IN FAILING TO INTERPRET SECTION 209(a) AS

PREEMPTING THE SCAQMD FLEET RULES, THE

NINTH CIRCUIT CONTRAVENED THE PLAIN AND

UNAMBIGUOUS LANGUAGE AND PURPOSE OF

THE CLEAN AIR ACT

Judge Cooper’s and the Ninth Circuit’s interpretation of

Section 209(a) reads Congress’s unambiguous intent to preempt

state and local standards for control of emissions out of the

Clean Air Act. The existence and breadth of Congress’s

preemptive intent when enacting Section 209(a) is not subject

to serious debate. Its application to the SCAQMD Fleet Rules

is apparent from the language, structure, and legislative history

of the Clean Air Act and from a base understanding of the Fleet

Rules themselves.

Section 209(a), headed “Prohibition,” is the preemption

section of Title II of the Clean Air Act, which deals with motor

vehicle emissions standards. Section 209(a) states:

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 contro! of emissions from any new motor vehicle or

new motor vehicle engine as condition precedent to the

7

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

motor vehicle, motor vehicle engine, or equipment.

42 U.S.C. § 7543(a). Section 209(a)’s unambiguous pre-

emption of state regulation is reflected in this Court’s case law,

as well as decisions of lower courts nationwide. See

Washington v. General Motors Corp., 406 U.S. 109, 114-115

(1972) (“Congress has largely pre-empted the field with regard

to ‘emissions from new motor vehicles.””) (citing to the former

codification of Section 209(a) as 42 U.S.C. §§ 1857f-9 to

1857f-12); see also, e.g., Engine Mfrs. Ass'n v. EPA, 88 F.3d

1075, 1078-1082 (D.C. Cir. 1996) (explaining Section 209(a)

preemption).

Judge Cooper’s opinion for the district court below (which

the Ninth Circuit adopted in total) took enormous liberties with

the state of preemption law as it applies to Section 209(a). The

courts below followed a misguided understanding that this

Court’s case law dealing with express preemption requires the

construction of federal enactments to avoid preemption

whenever a State has any history of regulatory expertise.

Compare Pet. App. 9a (“‘Air pollution prevention falls under

the broad police powers of the states, which include the power

to protect the health of citizens in the state. Environmental

regulation has traditionally been a matter of state authority.””)

(quoting Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1255 (9th

Cir. 2000)) with General Motors, 406 U.S. at 114-115

(“Congress has largely pre-empted the field with regard to

‘emissions from new motor vehicles.””). This Court has

repeatedly made clear that the law of preemption is otherwise.

Where Congress has expressly stated its intent to preempt state

regulation in a field, Congress’s intent will be respected. CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).

Congress’s preemptive intent is manifest in the unambiguous

language of Section 209(a), and no reason exists to look beyond

that plain language. Morales v. Trans World Airlines, Inc., 504

U.S. 374, 383 (1992).

8

As Judge Cooper pointed out, this Court certainly holds, in

appropriate cases, that particular state statutes are not

preempted by the federal statutes at issue. See, e.g., Medtronic,

Inc. v. Lohr, 518 U.S. 470, 501-502 (1996); New York State

Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645, 668 (1995). Judge Cooper’s opinion relied on

those cases to conclude that federal preemption under the Clean

Air Act should be narrowly interpreted. Pet. App. 9a-10a. But

the cited authorities are inapposite in the present context. Only

Travelers considered language (in Section 514(a) of the

Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§ 1144(a)) comparable to Section 209(a), and, unlike the

SCAQMD Fleet Rules, the state law that this Court held was

not preempted did not “reference” the subject of the preemption

clause. 514 U.S. at 656 (“the surcharge statutes cannot be said

to make ‘reference to” ERISA plans in any manner’’).

Judge Cooper’s citation (Pet. App. 7a-8a) to California v.

FERC, 495 U.S. 490, 497 (1990), for the proposition that courts

must “give full effect to evidence that Congress considered, and

sought to preserve, the States’ coordinate regulatory role in our

federal scheme,” exemplifies her injudicious choice of

preemption authorities. In California v. FERC, this Court held

that state laws were preempted, despite language in the Federal

Power Act that read: ““Nothing contained in this chapter shall

be construed as affecting or intending to affect or in any way to

interfere with the laws of the respective States relating to the

control, appropriation, use, or distribution of water used in

irrigation or for municipal or other uses, or any vested right

acquired therein.” 495 U.S. at 497 (quoting 16 U.S.C. § 821).

In contrast to the courts below, which construed Section 209(a)

by resort to first principles concerning supposed presumptions

against preemption of the historic police powers of the States,

this Court’s unanimous opinion in California v. FERC noted

that “the meaning of [16 U.S.C. § 821] and the pre-emptive

effect of the FPA are not matters of first impression.” 495 U.S.

at 497. Here, both prior case law construing Section 209(a) and

all evidence of congressional intent — including, most

9

importantly, the statutory text — shows that Congress carefully

considered and decided to preempt the States’ role in regulating

standards for emissions. When Congress has spoken so clearly,

the heavy reliance by the courts below on presumptions against

preemption is entirely unwarranted.

Morales, in which this Court construed a statute preempting

“States from ‘enact[ing] or enforc[ing] any law, rule, regulation,

standard, or other provision having the force and effect of law

relating to rates, routes, or services of any air carrier,” is

particularly instructive because of the near identity of the

language of the Airline Deregulation Act (ADA) preemption

section, former 49 U.S.C. § 1305(a)(1) (now 49 U.S.C.

§ 41713(b)(1)), to Section 209(a) of the Clean Air Act. This

Court applies the basic rule of statutory construction that courts

should read the same (and similar) statutory language in a

uniform manner. Morales, 504 U.S. at 383-384 (interpreting

“relating to” in the ADA uniformly with the interpretation of

“relating to” in this Court’s ERISA preemption decisions).

Morales held that the phrase “relating to” in former 49 U.S.C.

§ 1305(a)(1) was intended to preempt any state law with “‘a

connection with, or reference to’” the subject of the preemption

clause. Jd. at 384 (quoting Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 97 (1983)).

Faced with an argument that, because the State did not

“actually prescrib[e] rates, routes, or services,” the State

regulations were not preempted, this Court in Morales held that

such an argument “reads the words ‘relating to’ out of the

statute.” Jd. at385. Yet SCAQMD prevailed on Judge Cooper

and the Ninth Circuit to accept a nearly identical argument —

that the Fleet Rules did not actually “compel the manufacturer

[of a vehicle or engine] to reduce the actual amount of

pollutants emitted.” SCAQMD C.A. Br. 20 (emphasis in

original).’ Like the petitioner in Morales, SCAQMD tries to

2 The Ninth Circuit has been grudging in its interpretation of Morales

even when interpreting the Airline Deregulation Act itself. As three

10

draw fine distinctions that give each noun in the statutory text

the narrowest possible reading — ignoring the operative words

“relating to” in Section 209(a).

The SCAQMD Fleet Rules are standards “relating to the

control of emissions” even under the narrowest possible view

of the Morales and Shaw precedents.’ As this Court reiterated

in Travelers, a state law “relates to” a subject of federal

preemption if it has “a connection with or reference to” the area

of preemption. 514 U.S. at 656. Travelers continued on to

analyze the phrase “make ‘reference to,”” holding that, because

the challenged surcharges were imposed by state law regardless

of the existence of an ERISA plan, the state law imposing the

surcharges did not make reference to an ERISA plan. Jbid. By

contrast, the SCAQMD Fleet Rules quite literally “make

reference to” the control of emissions. The Fleet Rules impose

“Fleet Purchase Requirements” based, in some cases solely and

in some cases in part, on whether the relevant vehicles or

Justices of this Court have observed, the Ninth Circuit’s en banc decision

in Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9" Cir. 1998) (en

banc), narrowly construes the preemption section of that statute in

conflict with the decisions of at least three other circuits. See Northwest

Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (O’Connor, J., joined by

Rehnquist, C.J. & Thomas, J., dissenting from denial of certiorari).

Judge Cooper relied on Charas to support her statement that “the

Supreme Court has cautioned that preemption provisions must be

narrowly and strictly construed.” Pet. App. 8a.

> Indeed, Judge Cooper began her opinion by emphasizing how

serious an air pollution problem the South Coast Air Basin has, and how

important a contribution emissions make to that problem. Pet. App. 5a-

6a; see id. at Sa (“Emission of particulate matters from diesel vehicles

and equipment is the most significant individual toxic air pollutant in the

Basin, accounting for fully seventy-one percent (71%) of the air-borne

cancer risk.”). Her obvious purpose was to praise respondents for doing

something about the emissions problem through the Fleet Rules. Yet her

legal analysis turns on the proposition that the Fleet Rules do not even

“relat[e] to the control of emissions” within the meaning of the statute.

Congress is entitled to have its words given more respect.

ee ee ee

OT Oe tee

1]

engines meet “emissions standards” imposed by the CARB.

Morales and Shaw expose the error of the entire interpretive

approach of the courts below in this case.

Congress’s intent when enacting the Clean Air Act to

preempt regulations like the SCAQMD Fleet Rules is clear

from the text of Section 209(a) alone, but the structure and

legislative history of Section 209 confirm the interpretation.

Section 209(d) contains a savings clause: “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.” Courts have interpreted that clause to prevent

preemption of “in-use regulations,” such as HOV lanes,

restrictions on car use in urban areas, and programs to limit

excessive idling. See Engine Mfrs. Ass'n v. Huston, 190 F.

Supp. 2d 922, 929 n.5 (W.D. Tex. 2001), vacated as moot, No.

01-50819 (Sth Cir. Mar. 5, 2002); cf. Engine Mfrs. Ass'n, 88

F.3d at 1093 . This Court has held that the inclusion of a

savings Clause, like Section 209(d), demonstrates the breadth of

the intended preemption. Shaw, 463 U.S. at 98. In Shaw, the

express preemption clause in ERISA Section 514(a) was

informed by the savings clause of Section 514(b): “It would

have been unnecessary to exempt generally applicable state

criminal statutes from pre-emption * * * if Section 514(a)

applied only to state laws dealing specifically with ERISA

plans.” Jbid.; see also Morales, 504 U.S. at 385-386

(“Moreover, if the pre-emption effected by § 1305(a)(1) were

such a limited one, no purpose would be served by the very next

subsection, which preserves to the States certain proprietary

rights over airports.”). Under the inappropriately narrow

reading given by Judge Cooper and the Ninth Circuit to Clean

Air Act Section 209(a), the Section 209(d) savings clause has

no meaning.

Section 209(b) provides an exception to federal preemption

for standards set by the State of California, so long as California

receives a waiver from the EPA. California, through CARB,

12

has set such alternate standards, and the EPA has granted a

waiver. SCAQMD completely bypassed this waiver procedure

in promulgating its Fleet Rules. Congress’s provision, in

Section 209(b) of the Clean Air Act, of a process for California

_ to follow to accomplish the very goals SCAQMD claims to be

pursuing bolsters the reading of Section 209(a) as preempting

SCAQMD’s Fleet Rules.

The text and structure of Section 209 leave no room for

doubt as to the broad preemptive effect of Section 209(a), so

resort to the legislative history is unnecessary. But the legis-

lative history of the amendments to the Clean Air Act that

inserted the preemption provision of Section 209 likewise

completely undermines the conclusions of the courts below.

“While the committee is cognizant of the basic right and

responsibilities of the States for control of air pollution, it is

apparent that the establishment of Federal standards applicable

to motor vehicle emissions is preferable to regulation by

individual States.” H.R. Rep. No. 728, 90th Cong., 1st Sess.,

reprinted in 1967 U.S.C.C.A.N. 1938, 1955 (emphasis added).

Cf. Pet. App. 8a-9a (relying heavily on general authority of

States to address “air pollution” in case specifically involving

regulation of emissions by a political subdivision). The Report

continues: “The committee feels that a provision such as this is

necessary in order to prevent a chaotic situation from

developing in interstate commerce in new motor vehicles.”

1967 U.S.C.C.A.N. at 1956. The legislative history confirms

what a plain-language reading of Section 209 already makes

clear — that preemption was decided on as the means to ensure

uniformity of standards for the control of emissions.

II. THE NINTH CIRCUIT’S DECISION INTRODUCES

CONFUSION INTO A FEDERAL REGULATORY

SCHEME THAT HAS HERETOFORE BEEN

CLEARLY UNDERSTOOD BY EVERY COURT TO

INTERPRET THE CLEAN AIR ACT

The breadth of the preemption under Section 209(a) has

never been the subject of confusion in the federal courts.

ee

13

The Clean Air Act preemption scheme has been subject to

regular explication by federal courts, and all courts correctly

understand that “regulation of motor vehicle emissions [is] a

principally federal project.” Engine Mfrs. Ass'n, 88 F.3d at

1079. Congress was concerned that ““‘an anarchic patchwork of

federal and state regulatory programs, a prospect which

threatened to create nightmares for the manufacturers,” might

develop. Jbid. (quoting Motor & Equip. Mfrs. Ass'n v. EPA,

627 F.2d 1095, 1109 (D.C. Cir. 1979), cert. denied, 446 U.S.

952 (1980).

The petition for a writ of certiorari demonstrates that the

Ninth Circuit’s decision in this case conflicts with American

Automobile Manufacturers Association v. Cahill, 152 F.3d 196

(2d Cir. 1998), and Association of International Automobile

Manufacturers, Inc. v. Commissioner, Massachusetts

Department of Environmental Protection, 208 F.3d | (1st Cir.

2000), and amici curiae will not fully replicate that discussion

here. Cahill and Commissioner are prime examples of the

correct application of the Section 209(a) preemption language.

Both courts invalidated state requirements that a percentage of

vehicles sold be ZEVs. Cahill, 152 F.3d at 200; Commissioner,

208 F.3d at 7. Both the First and the Second Circuits

understood the phrase “standards relating to the control of

emissions” to “describ[e] regulatory measures intended to

lower the level of auto emissions.” The ZEV sales

requirements, having “no purpose other than to effect a general

reduction in emissions,” were preempted standards. Cahill, 152

F.3d at 200; see Commissioner, 208 F.3d at 6. As the petition

discusses in greater detail, the First and Second Circuits have

interpreted Section 209(a) preemption in a way that is

diametrically opposed to the interpretation Judge Cooper and

the Ninth Circuit reached below. The SCAQMD Fleet Rules,

requirements that fleet operators purchase only certain vehicles

— identified by their CARB certification as causing lesser

emissions than other technology — have “no purpose other than

to effect a general reduction in emissions.” Nevertheless, Judge

Cooper and the Ninth Circuit held that the Fleet Rules were not

14

“standard[s] relating to the control of emissions,” and thus not

preempted by Section 20%a). That result cannot be reconciled

with Cahill and Commissioner.

Courts approaching Section 209(a) from a variety of other

angles have also properly understood the breadth of the

section’s preemptive scope. In Sims v. State of Florida,

Department of Highway Safety & Motor Vehicles, 862 F.2d

1449, 1454-1455 (11th Cir. 1989) (en banc), the Eleventh

Circuit considered a state requirement that owners of “gray-

market” automobiles — cars not intended to be imported into the

United States, and thus not necessarily in compliance with U.S.

safety and emissions standards — demonstrate certification by

the EPA before being given a title or registration and before

selling the vehicles. The court held that the state law was an

““attempt to enforce any standard relating to the control of

emissions from new motor vehicles’ prior to the initial sale,”

and was therefore preempted by Section 209(a). Jd. at 1455

(quoting Section 209(a)) (emphasis and alteration deleted).

Like the SCAQMD rules in this case, the Florida regulation

was directed at the purchaser, not at the manufacturer or seller.

Ibid. Accord Direct Automobile Imports Ass'n v. Townsley,

804 F.2d 1408, 1410-1412 (Sth Cir. 1986); Georgia Automobile

Importers Compliance Ass'n v. Bowers, 639 F. Supp. 352, 355-

356, 357 (N.D. Ga. 1986).

The parallel preemption scheme contained in Section

209(e), which places limits on state regulation of nonroad

vehicles such as construction equipment, likewise has received

a consistently broad interpretation.* Under Section 209(e)(1),

“No State or political subdivision thereof shall adopt or attempt

* Amicus ARTBA is especially concerned that the Ninth Circuit's

decision below opens the door to similar regulation of emissions

standards for nonroad motor vehicles that was previously understood to

be preempted by Section 209(e).

15

to enforce any standard or other requirement'*! relating to the

control of emissions” from construction or farm equipment. 42

U.S.C. § 7543(e)(1). Like Section 209(b), Section 209(e)(2)(A)

exempts California from preemption if granted an EPA waiver,

and, like Section 177, 42 U.S.C. § 7507 (discussed at Pet. App.

12a-13a), Section 209(e)(2)(B) permits other States to decide

whether to adopt the federal standards or the California

standards. 42 U.S.C. § 7543(e)(2)(A)-(B); see Engine Mfrs.

Ass'n, 88 F.3d at 1080-1081 (discussing the nonroad vehicle

preemption issue). The similarity in language between Section

209(a) and Section 209(e)(1) requires that the sections be

interpreted consistently. See Sullivan v. Stroop, 496 U.S. 478,

484 (1990) (citing the “normal rule of statutory construction”

that “identical words used in different parts of the same act are

intended to have the same meaning”).

In Huston, the court held that Section 209(e)(1) preempted

a Texas Natural Resources Conservation Commission

(TNRCC) “fleet composition rule” that was identical in all

pertinent respects to the SCAQMD Fleet Rules. TNRCC

required individuals operating construction machinery in the

Dallas-Fort Worth area “to have fleets with certain percentages

of machines of the most modern low-emission design as

prescribed by the federal standard.” 190 F. Supp. 2d at 928.

Like SCAQMD in the courts below, TNRCC defended its fleet

composition rule by arguing that “the regulation place{d] no

technology-forcing sales restriction or sales quotas on nonroad

equipment manufacturers.” /bid. Plaintiffs argued that the rule

imposed en:ission standards and was therefore preempted by

Section 209%(e)(1). Jbid. The U.S. District Court for the

* An important substantive distinction in subsection (e)(1) is the inclusion

of the phrase “or other requirement.” The additional language has been

interpreted to provide broader preemption than in Section 209(a),

preempting not only the adoption and enforcement of standards relating

to the control of emissions but also “in-use” requirements that are

excepted from Section 209(a) preemption by Section 209(d). See

Huston, 190 F. Supp. 2d at 927.

16

Western District of Texas agreed, relying on the EPA’s express

ion of “fleet average standards” in 40 C-.F.R.

§ 85.1603(c)(2), as well as the Second Circuit Cahill decision

and the First Circuit Commissioner decision discussed above.

TNRCC’s fleet composition rule was therefore preempted by

Section 209(e)(1).

Until the Ninth Circuit’s wholesale acceptance of Judge

Cooper’s opinion in this case, courts had no difficulty

understanding the breadth of preemption under Section 209(a)

(and its parallel, Section 209(e)(1)). As the D.C. Circuit noted

in Engine Mfrs. Ass'n, 88 F.3d at 1086, “the preemption

scheme for motor vehicles has been working for almost thirty

years.” For the first time since the enactment of Section 209(a),

a federal appellate court has subjected the preemption of state

regulation under Section 209 to uncertainty. This Court should

not tolerate such disharmony among the circuits.

Il. THE RAMIFICATIONS TO THE CLEAN AIR

ACT REGULATORY SCHEME OF ALLOWING

THE UNCERTAINTY CREATED BY THE

NINTH CIRCUIT’S DECISION TO REMAIN

NECESSITATE A GRANT OF CERTIORARI

The importance of federal preemption to industries reliant

on interstate commerce in motor vehicles has been discussed at

length by Congress, the EPA, and the courts, and is not subject

to genuine debate. It was precisely the “uncertainties involved

in litigation” that Congress intended to avoid when preempting

all state standards relating to the control of emissions from

motor vehicles. 1967 U.S.C.C.A.N. at 1956. Judge Cooper’s

and the Ninth Circuit’s holdings eviscerate Congress’s goal,

imposing the uncertainty of future regulation and inevitable

litigation on a multitude of industries, including those

represented by amici.

Courts have termed Section 209(a) preemption of state

standards the “cornerstone” of the Clean Air Act scheme to

regulate automobile emissions. Engine Mfrs. Ass'n, 88 F.3d at

17

1079 (citing Motor Vehicle Mfrs. Ass'n v. New York State Dep't

of Env ‘tl Conservation, 17 F.3d 521, 526 (2d Cir. 1994)).

Without preemption, “‘the spectre of an anarchic patchwork of

federal and state regulatory programs * * * threatened to create

nightmares for the manufacturers.’”” Jbid. (quoting Motor &

Equip. Mfrs. Ass'n, 627 F.2d at 1109). See also Allway Taxi,

Inc. v. New York, 340 F. Supp. 1120, 1124 (S.D.N.Y.)

(interpreting the legislative history and text of Section 209(a)

to conclude that the purpose was “to prevent the burden on

interstate commerce which would result if, instead of uniform

standards, every state and locality were left free to impose

different standards for exhaust emission control devices for the

manufacture and sale of new cars”), aff'd, 468 F.2d 624 (2d

Cir. 1972).

The EPA also has stressed the importance of the

congressional intent to avoid a multitude of state standards. In

an “advisory opinion” letter sent to the U.S. Court of Appeals

for the First Circuit, in response to that court’s self-described

“somewhat inartful” application of the primary jurisdiction

doctrine, the EPA noted the possibility of frustrating

Congress’s intent under the Clean Air Act through a narrow

definition of the word “standards” in Section 209, which could

result in state-by-state regulation of the number (or percentage)

of ZEVs — or some other incarnation of motor vehicle that

produces lesser emissions — that automakers must supply to the

market. Commissioner, 208 F.3d at 7. The EPA’s advisory

opinion adds to the unanimous understanding — apart from the

* Judge Cooper drew a distinction between the ZEV sales requirements

held preempted by the First Circuit in Commissioner, and the “purchase”

requirements imposed by the SCAQMD Fleet Rules. As discussed more

fully in the petition, the distinction is not legally cognizable. The EPA’s

expressed concern (discussed in Commissioner) for multifarious

standards regarding sale of ZEVs applies equally where the state

regulation imposes purchase requirements, which can differ from

jurisdiction to jurisdiction and by logical necessity create “sale”

requirements.

18

courts below — that Congress’s intent regarding Section 209(a)

preemption is uniformity of emissions standards.

The immediate negative effect of permitting the lower

courts’ rulings to stand would be significant, but the spread of

similar regulations in the future as a result of these holdings

may be of even greater concern. Left undisturbed, the Ninth

Circuit’s interpretation of Section 209(a) permits any State or

locality within th> Circuit’s vast geographic boundaries to

address its own pollution problem individually through

restrictions aimed at purchasers of motor vehicles. States and

localities outside the Ninth Circuit — previously kept in check

by unanimous authority that prevented the enactment of

regulations like the SCAQMD Fleet Rules — are encouraged to

roll thé dice by promulgating illegal regulations, in the hope of

selling the spurious distinction between a purchase restriction

based on emissions and “standards relating to the control of

emissions” to their respective federal courts.

The legislative history of Section 209 contains recitals of

- the challenges facing automakers and the economic concerns

associated with the need to comply with a multitude of

regulatory schemes. When considering the text of what became

Section 209(b), the limited waiver of preemption for California,

Congress was concerned with two (federal and California)

separate standards for control of emissions. “The manufacture

of automobiles is a complex matter, requiring decisions to be

made far in advance of their actual execution. The ability of

those engaged in the manufacture of autor iobiles to obtain clear

and consistent answers concerning emission controls and

standards is of considerable importance so as to permit

economies in production.” 1967 U.S.C.C.A.N. at 1957.

Because Congress expressly preempted any “third” standard for

control of emissions, through the interplay of Sections 209(a),

177, and 209(b), the legislative history understandably does not

consider the greater costs associated with a need to produce

automobiles in light of three, four, or a patchwork of standards.

Members of amici include engine manufacturers that may now

19

be forced to sell equipment that complies with SCAQMD’s

standard, and possibly many more standards should State or

local regulations for emissions control proliferate.

It is not just manufacturers that stand to lose if the

reasoning adopted by Judge Cooper and the Ninth Circuit is

applied to allow the SCAQMD Fleet Rules — a third standard —

as well as similar purchase restrictions by any other locality

within the Ninth Circuit. Considering the potential problem of

two emissions standards combined with just two administrative

schemes, the House Report noted: ““While manufacturers could

meet [the problems of differing regulations] by building

vehicles that meet whichever standard is the more stringent,

this would lead to increased costs to consumers nationwide

***” 1967 U.S.C.C.A.N. at 1958. The House Report also

quoted a Senate Report from the original Clean Air Act: “{I]t

would be more desirable to have national standards rather than

for each State to have a variation in standards and requirements

which could result in chaos insofar as manufacturers, dealers,

and users are concerned.” /d. at 1956 (quoting S. Rep. No. 192,

89th Cong). Such chaos is of particular concern to fleet

operators, which, because of the mobile nature of their fleets,

regularly exchange vehicles between locations in different

jurisdictions. Individual operators could be required to

purchase vehicles to comply with a multitude of different

emissions standards.

Amici organizations have as members many such end users

who would be subjected to greater costs and economic

disadvantages under Judge Cooper’s and the Ninth Circuit’s

rule. If subregion-by-subregion fleet rules are allowed to

proliferate, operators that engage in exchanges between their

various business locations will be forced to incur extraordinary

costs to purchase or lease vehicles that meet the most stringent

emissions standards. Small operators are given a strong

incentive not to expand to the fifteen-vehicle size that triggers

application of the SCAQMD Fleet Rules, and operators with

barely more than the fifteen-vehicle trigger must either reduce

20

their size or be disproportionately affected. Confusion may

also erupt when fleet operators located in one jurisdiction

conduct business in another. An operator (of any size fleet) that

leases vehicles to customers within SCAQMD will be required

to stock vehicles that comply with the emissions standards set

out in the Fleet Rules, so its customers will have access to

compliant vehicles. Tne immediate damage of the Ninth

Circuit’s holding, and uncertainty and future costs, can be

avoided if this Court grants the petition and reverses the Ninth

Circuit’s departure from the long-settled understanding of

Section 209(a).

CONCLUSION

For the foregoing reasons and those stated in the petition,

the petition for a writ of certiorari should be granted.

Respectfully submitted.

ROBERT DIGGES, JR. Roy T. ENGLERT, JR.

ATA Litigation Center Counsel of Record

2200 Mill Road MAX HUFFMAN

Alexandria, Virginia 22314 Robbins, Russell, Englert

(703) 838-1865 Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

APRIL 2003

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