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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 246

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0643%3A06. Public record. Not legal advice.