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

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No. 02-1343 OFFICE OF THE CLERK

Supreme Court

[Sipremes Coat ty —

FILED

NOV 17 2003

IN THE

of the United States

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT, ET AL.,

Respondents.

ON WRIT OF CERTIOR..RI TO THE

UNITED STATES COURT OF APPEALS

FOR THE

NINTH CIRCUIT

BRIEF FOR RESPONDENT SOUTH COAST AIR

QUALITY MANAGEMENT DISTRICT

FRAN M. LAYTON

JANETTE E. SCHUE

SHUTE, MIHALY &

WEINBERGER, LLP

396 Hayes Street

San Francisco, CA 94102

(415) 552-7272

BARBARA 3AIRD

KuRT R. WIESE

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT

21865 EAST COPLEY DRIVE

DIAMOND Bar, CA 91765

(909) 396-2302

SETH P. WAXMAN

Counsel of Record

C. BOYDEN GRAY

JONATHAN E. NUECHTERLEIN

LUKE A. SOBOTA

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

DANIEL P. SELMI

919 South Albany Street

Los Angeles, CA 90015

(213) 736-1098

_ORFSTAVANARIFEDPY; ~.

QUESTION PRESENTED

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

§ 7543(a), preempts state and local clean air regulations that

enhance the market for cleaner fleet vehicles, such as urban

transit buses, without imposing any production mandates or

other obligations on manufacturers.

(i)

TABLE OF CONTENTS

Page

I Tar arse rnanncenacinarsnesnncssemmsecemsanaasens i

ce Vv

Te 1

ee 4

ion nn nnssnmnnenaepemcemnnnesenraeats 4

B. The Fleet Rules............ OEE enna Onn 8

i“ Te Le 11

TT EE 12

Cee 16

THE FLEET RULES ARE PERMISSIBLE BE-

CAUSE THEY ENHANCE THE MARKET FOR

CLEAN-FUEL VEHICLES WITHOUT IMPOS-

ING PRODUCTION MANDATES ON MANU-

PERF UPUEEEEEEES crccscsnsenscscsscssscecsennsessscssscscssscsssssencscssnsscscscscenescsee 16

I. THE “STANDARDS” PREEMPTED UNDER

SECTION 209(a) ARE THE SAME TYPE OF

“STANDARDS”—PRODUCTION MANDATES

—THAT THE FEDERAL GOVERNMENT IM-

POSES ON MANUFACTURERS UNDER

ee 16

Il. PETITIONERS’ CONSTRUCTION OF SEC-

TION 209%(a) IS IRREMEDIABLY OVERIN-

CEUGIV EE. .ccccccccccccccccecenccccccvooccceccccecesosecosececccccccccsccees 29

III. CONFINING SECTION 209(a) TO PRODUC-

TION MANDATES ESTABLISHES A SENSI-

BLE AND EASILY ADMINISTERED RULE

OF DECISION THAT SHOULD BE REVIS-

ITED, IF AT ALL, ONLY BY THE POLITI-

I eee 36

(iii)

TABLE OF CONTENTS—Continued

Page(s)

IV. CONFINING SECTION 209(a) TO PRODUC-

TION MANDATES IS CONSISTENT WITH

OTHER PROVISIONS OF THE CLEAN AIR

| — 39

CO ccrcinensnerscssserneridiniinetatansisniainiiiiiasisiaaniiinininsiiaiiaemmaal 44

TABLE OF AUTHORITIES .

CASES

Page(s)

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

1120 (S.D.N.Y.), affd, 468 F.2d 624 (2d Cir.

1972) 7, 22

American Automobile Manufacturers Ass’n v. Ca-

hill, 152 F.3d 196 (2d Cir. 1998) 12, 24, 34, 41

American Automobile Manufacturers Ass’n v.

Commissioner, 998 F. Supp. 10, 22 (D. Mass.),

aff'd, 208 F.3d 1 (1st Cir. 1997) .25

American Automobile Manufacturers Ass’n v.

Massachusetts Department of Environmental

Protection, 163 F.3d 74 (1st Cir. 1998) 24

Association of International Automobile Manufac-

turers, Inc. v. Commissioner, Massachusetts

Department of Environmental Protection,

208 F.3d 1 (1st Cir. 2000)... 12, 24, 34

Brown v. Gardner, 513 U.S. 115 (1994) 19

California Division of Labor Standards Enforce-

ment v. Dillingham Construction, N.A., Inc.,

519 U.S. 316 (1997) . 18

Davis v. Michigan Department of Treasury,

489 U.S. 803 (1989) 19

DeBuono v. NYSA-ILA Medical Clinical Services

Pend, GED UE. SEB CRIED ccncscscssscsscessscssssmnccssssssscsssesosesees 25

Duncan v. Walker, 533 U.S. 167 (2001) 29

Engine Manufacturers Ass’n v. EPA, 88 F.3d 1075

(D.C. Cir. 1996) 43

English v. General Electric Co., 496 U.S. 72 (1990)..........00. 41

FTC v. Mandel Bros., Inc., 359 U.S. 385 (1959) ..20

General Motors Corp. v. United States, 496 U.S. 530

(1990) 4,17, 18

Glover v. United States, 531 U.S. 198 (2001) 39

Huron Portland Cement Co. v. Detroit, 362 U.S.

440 (1960) 2,17,

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)........ 13, 25, 27, 41

TABLE OF AUTHORITIES—Continued

Morales v. Trans World Airlines, Inc., 504 U.S. 374

(1992) aoieaetatae aciammemeainaemaaiaeiteasauesaasticaasiuiatmatianenenpstaiees 17, 18

Motor & Equipment Manufacturers Ass’n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979) .......cc.ccscccccsessessessesees passim

Motor Vehicle Manufacturers Ass'n of United

States, Inc. v. New York State Department of

Environmental Conservation, 79 F.3d 1298 (2d

Motor Vehicle Manufacturers Ass’n of United

States, Inc. v. New York State Department of

Environmental Conservation, 17 F.3d 521 (2d ss,

Ca, I enessnnsenesnsnsnsmnsrecseenmennessenmenannass 42

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645

(1947) ennsnsenntnnempenesenenemeenenemNRNDRRSNNEENS

South Carolina v. Katzenbach, 383 U.S. 301 ( 1966) pesessensnaeus 28

TRW Inc. v. Andrews, 534 U.S. 19 (2001) , —

Train v. Natural Resources Defense Council, Inc.,

421 U.S. 60 (1975) , 5

United States v. Locke, 529 U.S. 89 (2000) —

Washington v. General Motors Corp., 406 U.S. 109

ne 2, 26

Whitman v. "American Trucking Ass’n, 531 U. S.

457 (2001). ease - —— —_—

STATUTES, RULES AND REGULATIONS

26 U.S.C. § 29 os -_ suenesnsssensonemes 36

26 U.S.C. § 30 ...... . —

26 U.S.C. § 40 , .. 36

26 U.S.C. § 179A 30, 35

The Clean Air Act, 42 U.S.C. §§ 7401-7671q 4

Eo 2

GB TEAL. B PERG ecccssesczssnsssssssssssnssssscsemsensenesssssssesssems 5

42 U.S.C. § 7401(b)(4).... : — |

——_———

vii

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 7408(a)(1)(A) . — |

42 U.S.C. § 7408(a)(1)(B) ....... will

42 U.S.C. § 7410 a . sunnpennes 4,5

42 U.S.C. § 7416. anes 2, 5, 17, 40

ee tetera ntrrentnatennntnteenieitemaeatii 7,41, 42

42 U.S.C. $ T507(1)........ccccccccccsssesees . ; 41

42 U.S.C. § 7511(a). . 7 - i)

42 U.S.C. § 7511(a)(1) - .28

42 U.S.C. § 7511a(b)(4) siandiaemamaatniaimteeiesiaiitiuaeienie 5

I iit ceed inleiteneniciia 5

42 U.S.C. § 751 1a(c)(4)(B)........ ecetinniantenuaial 8, 37, 39, 40

a es © Ce cre renneesrensenmenmaenenmemmenmnntes 31

tester eereeresineeenniteeniteeinneiteeeianiial 28

Ee 28

42 U.S.C. § 7521 sueuacemseueneussesupsmnssennsenmanaemenstecn 2,19

42 U.S.C. § 7521 (a)... "= nen on 7

42 U.S.C. § 7521(a)(1)....... —_ 6, 20

4B UBC. § TERA S MAN) cccecccsccccccscececcsescscsscscsssccscesescers 21

RO ae 6

42 U.S.C. § 7521(a)(3)(B)(ii)..........cccce0es smiemeeeds 20

42 U.S.C. § 7521(b)(1)(A) : — 21

42 U.S.C. § 7521(b)(1)(B) .........0cc0000 nuptial 21

enn eee, 20

42 U.S.C. § 7521(b)(3) 7 21

42 U.S.C. § 7521(b)(3)( Ai) a 20, 21

42 U.S.C. § 7521(g)(1) 20

A ee 21

42 U.S.C. § 7522(a)(1) namamnsibees “ 21

42 U.S.C. § 7525(a)(1)........... . , - 21

Ne iter enerdiceatiimaeniiel i, 2, 6, 17, 29

42 U.S.C. § 7543(b).. = aN wan 7

42 U.S.C. § 7543(b)(1).........c0c00000 ae, S

42 U.S.C. § 7543(d) 34, 43

42 U.S.C. § 7543(e) : 18

42 U.S.C. § 7581(2) _ ——

42 U.S.C. § 7583 scsiiiaeananenanel 38

viii

TABLE OF AUTHORITIES—Continued

Page(s)

4B U.S.C. 8 TEBB .cccccscceccccsccscvscsessccsccscvecrscssssssscsscssseesee 4, 8, 37

4B U.S.C. § TEBBID) ..cccccccececcccecsccecsececsecscvecessscssnscsssscosnees 8, 37

42 U.S.C. § TEBO(LNS)...ccccccrcccrecerceesercosereesessesecsccssssssssssssoees 31

42 U.S.C. § TE89(A)(B)(A)....ccccsscrsrsesssseeesnrereenseneneenensesenees 31

42 U.S.C. § TEBBUI NE) cccccceccsceccccevecescsccseveesccsessoscsssssssneeseees 31

42 U.S.C. § 1BZL IZ) .nccccecscccceveccrerevsccsescosessvccssossosscssossessssessesesees 41

42 U.S.C. § 1BZBE(ANSNMA) ..ccccccsosrrserersereseorersescesscosecsesessesesssses 31

42 U.S.C. § 13235(b)(1)(B) .......cereccsorerscressorsnsereesersersseesenssssseeees 31

42 U.S.C. § 1B2B5()(1(C).......ccsccrcsscereccescorerensersereressesssseseesesees 31

4B UBC. 6 RBBB ceccececcccccsccccsccscsccsesscessesecrssecrscesssnssessessessonscessess 41

Ariz. Rev. Stat.

§ 2B-GBO1 (BOOB)... .cecsccscsrsccecrevecrevscvsesessessosesensesscsossssecsesonees 30

§ 28-5805 (2003)........csrossssssssssreserseneeeseeneneseenenesesseassvsnsesessess 30

Cal. Code Regs.

Se EEE 9

Se gO EeEeEeEyE,, 9

CHC. 2B, 8 2GBB.B.....ecccccceccccecsccecsscssseesevsnscsenssssnssnsnesnsssssesssnosseees 9

CHE. 1B, B BGO D ..cccccccccececcecsecscsccsssececscescrsnsessnsenssssessnonsssssessenes 9

|) |) en 9

CEE. 17, § DBOOD. ....eccccecscccrscrerececreccorenscosssosscsssssnsnsssssssvssooseeses 10

Cal. Health & Safety Code

6 BBB seccccccecssssesesesescecesvsccsnsscsvenvscsssenssnsensnssssnsussssssensssssessssess 8

9 Ln 8

(0 Ln 8

B GG secccccesessssessssseccsecnssscssesssscnsscenscsnensssessensssesesscsnsosensee 9

6 GBB cccecsnsesecsssssssssvscssssseccssesesnssosscssssnsssssenssessssssnsssenssssenseess 9

$8 40400-4OB00.......cccccccecscrscccrecsececccseescssesevenssesonsnssssesssssseoesoes 9

BE 4D4BD-4O4BB.......cceccccereccerecccccerevcccsoseesnsevsessosesossnsosssssnsssosoes 9

$§ 44260-44265 (2002).........rcscersersccssrssssrssrssssrssserenseneeseness 30

$§ 44275-44299.1 (2008)........ccscsccsrsrssssssressersersrseeenserensesess 30

$§ 44299.50-44299.55 (2003) .....ssssessreeseresseneeseseesensnsensnnens 30

$§ 44299.75-44299.79.......ccccsrcecerssssscecseserscsersosesensessesesenserers 30

$§ 44299.80-44299.85........ccsrsssscssssssrsssesssserensesersesensesensesees 30

Colo. Rev. Stat. § 39-26-114(22) (2003) ......secsersereneeeneeeneeenees 30

Conn. Gen. Stat. § 12-412(67)-12-412(68) (20038).......seseseers 30

— = —_—, Al

TABLE OF AUTHORITIES—Continued

Page(s)

Ga. Code Ann. § 48-7-40.16 (2008) ........ccceccssesesenseneees Sesnesennenens 30

415 Ill. Comp. Stat. 120/30 (2008) .........cccccssesescsseseseeeeseseeeseesees 30

Kan. Stat. Ann. § 79-32,201 (2002) .........scsssssssssescsseseesesessesenes 30

Md. Code Ann., Transp., § 13-815 (2008).........cccccsccesecsessesensees 30

Me. Rev. Stat. Ann. tit. 36, § 1760(79) (2008) ........ccccceseseeees 30

N.Y. Tax Law § 606(p) (2003)........sssssssssssssessssssnsnssesssesesessees 30

Or. Rev. Stat. § 316.116 (2001)..........cscssssssssssessssssesssseseseeeneess 30

R.1. Gen, Laws § 44-18-30(53) (2002) ......sssessssesnseereneeeesesnens 30

Utah Code Ann. § 59-10-127 (2003).......csssssesseessseesseresseseenees 30

Va. Code Ann. § 58.1-438.1 (2008) .......cccsseseeeesesenseeseseseesenenes 30

W. Va. Code § 11-6D-5 (2008) .........cccssessssssessesrssseesssessesssesneees 30

RULES AND REGULATIONS

GG ate O GR i ereserenesemmmnnnnnnmmen 9

31 Fed. Reg. 5170 (Mar. 30, 1966) ........ Sovensosssssosvessssssvessnsessesees 21

56 Fed. Reg. 50196 (Oct. 3, 1991) .......ccccccescecseesseereeeeeeeeenenenees 40

58 Fed. Reg. 11888 (Mar. 1, 1993) ........ccccsessesecereeeeeereeeeeenees 37

58 Fed. Reg. 32474 (June 10, 1993) ...........4: pesseusnsenmemesnnnmneess 41

59 Fed. Reg. 48664 (Sept. 22, 1994).........cccsscsseseseseeseeseeeneenenees i)

63 Fed. Reg. 20103 (Apr. 23, 1998) ........cccseeseeeeees 4, 8, 14, 38

65 Fed. Reg. 6091 (Feb. 8, 2000).........ccccscsssssssessssesssseseeserenssees 28

68 Fed. Reg. 19316 (Apr. 18, 2008).........cssessesseesssseseseeeeneees 28

ls GR, BR, SED carccnncessssersesnnnsresnensensremenemsnnrmmmmnsensnenenes 39

LEGISLATIVE MATERIAL

A Legislative History of the Clean Air Act

Amendments of 1990, Senate Comm. on Public

Works, 103d Cong., Ist Sess., Serial No. 103-38

(BED cscasesossessssssssssssnssssssssessessenssesssessvesnssesssensssess 8, 33, 38, 42

H.R. Rep. No. 89-899 (1965).......sssscsessescessessesseseessseneesees 20, 21

H.R. Rep. No. 90-728 (1967).....sssssssssseesessssessesesseseesesesees 23, 33

H.R. Rep. No. 95-294 (1977).....ccccsssssssssesessssesssesseseneees 22, 33, 42

H.R. Rep. No. 101-490 (1990).....ccscssssssssssssssssssssssssessesssesesessseses 40

BD, FRG. FeO, GTR Cop cccncccsnscesesescsesssscssssessesssssnsesssssesssensenses 33

S. Rep. No. 90-403 (1967)......cccccseseereseeeees 5, 6, 7, 22, 23, 26, 33

S. Rep. No. 101-228 (1989)....ssssssssssssssssssssssscsessscessessssssssssssesesees 5

TABLE OF AUTHORITIES—Continued

113 Cong. Rec. 19173 (1967)............c0cccccscesecseccesessseseosesecsseseees 23

MISCELLANEOUS

Currie, David P., Motor Vehicle Air Pollution:

State Authority and Federal Preemption, 68

Biba, L.. Bev. BUBB CRB TGD ccccssssersvsscancsescescesvsnsiencesssceseees 9,21

Letter from Gary S. Guzy (EPA) to the Honorable

Thomas F. Reilly, Sept. 15, 1999 ..........cccssseeeseere 13, 23, 25

U.S. Department of Health, Education, and Wel-

fare, A Digest of State Air Pollution Laws

0 5 17

U.S. Department of Health, Education, and Wel-

fare, A Digest of State Air Pollution Laws

CRB O.) censcssseenssnnescssesensenscenensnnsnnnsssnnerneesesemsenemnnenneseese 21,22

Webster’s Third New International Dictionary

CRIED cccasscsssesenssnnsensnssemsnssnsenenssnnenecntegetamanmmmmesnanssnsnsmaenien 19

Supreme Court of the United States

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT SOUTH COAST AIR

QUALITY MANAGEMENT DISTRICT

INTRODUCTION

In 1999 a new study established that diesel exhaust ac-

counted for 70% of the carcinogenic toxins in the air

breathed by the inhabitants of the Los Angeles Basin—

which, to this day, remains the only ozone “extreme non-

attainment” area in the country. See JA 81-84, 258-274. This

case presents two different views of how our federalist sys-

tem should respond to such crises. Petitioners argue that

the Clean Air Act creates a centralized command-and-

control regime under which the federal government, rather

than the affected states or localities, must play the lead role

in alleviating region-specific pollution problems—even with

respect to measures that enhance the regional market for

cleaner motor vehicles. The courts below, in contrast, held

that states and localities retain their inherent authority to

create targeted solutions to regional problems so long as

they do not require manufacturers to produce vehicles with

particular emissions characteristics. Resolution of this dis-

pute will have immense significance both within and outside

of California because, as this Court has observed, “measures

which might be adequate to deal with pollution in a city such

as San Francisco, might be grossly inadequate in a city such

as Phoenix, where geographical and meteorological condi-

tions trap aerosols and particulates.” Washington v. Gen-

eral Motors Corp., 406 U.S. 109, 116 (1972).

Congress did not intend to hamstring states and locali-

ties in their efforts to respond flexibly and promptly to local

air-quality problems—and, in particular, it did not foreclose

the fleet purchasing regulations at issue in this case. The

Clean Air Act establishes a federal-state partnership to

combat the “mounting dangers to the public health and wel-

fare” posed by air pollution. 42 U.S.C. § 7401(a)(2). For the

most part, Congress preserved the states’ inherent author-

ity to combat air pollution within their borders, an authority

that “falls within ... even the most traditional concept of

what is compendiously known as the police power.” Huron

Portland Cement Co. v. Detroit, 362 U.S. 440, 442 (1960); see

also 42 U.S.C. § 7416. The preemption provision at issue

here—section 209(a) of the Act—is an important but narrow

exception to this retained power, designed to protect manu-

facturers from the burden of having to comply with 50 dif-

ferent state “standard[s] relating to the control of emissions

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

As discussed below, the “standards” that section 209(a)

preempts are the same type of production mandates that

the federal government itself imposes on manufacturers un-

der section 202 of the Act, also under the name “standards”:

i.e., requirements that the vehicles that manufacturers pro-

duce meet particular emissions criteria, individually or on

average. See 42 U.S.C. § 7521. Section 209(a) does not pre-

empt the fleet purchasing rules at issue here, because those

rules impose no production mandates (or any other obliga-

tion, for that matter) on ‘manufacturers; instead, they re-

quire the operators of certain vehicle fleets within the Los

Angeles Basin to choose among the cleaner types of Califor-

nia-approved motor vehicles if, and only if, they are com-

mercially available. This conclusion is faithful to the statu-

tory text and structure, and it is fully consistent with the

long-standing views of the Environmental Protection

Agency (“EPA”), whose absence from the Justice Depart-

ment’s amicus brief is perhaps as telling as it is irregular.

The gist of petitioners’ contrary argument is that, with

a single exception inapplicable here, section 209(a) categori-

cally preempts any state or local environmental regulation

that contains an “express reference to,” or is “linked in some

other manner to[,] control of motor vehicle emissions.” Pet.

Br. 28. That position would unhinge the scope of preemption

under section 209(a) from the scope of federal “standard”-

setting under section 202. Indeed, carried to its logical

conclusion, petitioners’ position would require the

elimination of myriad state and local programs whose

validity has never been seriously questioned, such as the

many incentive programs that condition tax benefits on the

purchase of cleaner vehicles. As the Justice Department

concedes (U.S. Br. 17 n.4), section 209(a) does “not generally

reach state voluntary or incentive programs that merely

encourage vehicle manufacturers to sell, or consumers to

buy, vehicles with particular emission characteristics.” Yet

these programs would fall prey to petitioners’ view of

section 209(a) because they make “express reference to”

emission characteristics (Pet. Br. 28)—indeed, they

condition valuable consumer benefits on them.

Drawing the line instead between prohibited production

mandates for manufacturers, on the one hand, and permissi-

ble purchasing restrictions and incentive programs for con-

sumers, on the other, establishes a sensible rule of decision

that courts can easily administer. And it appropriately bal-

ances the interests of manufacturers against those of states

and localities—both inside and outside of California—that

wish to limit their number of pollution-choked “Code Red”

days. Petitioners express concern (Br. 26) that purchase re-

strictions, if widely adopted, would become indistinguishable

from production mandates. But Congress itself has refuted

that logic in a closely related provision of the Clean Air Act.

As EPA has explained, Congress’s desire to spur the intro-

duction of clean-fuel vehicles presented “a clear choice be-

tween two alternatives: [1] requiring auto manufacturers to

produce and sell (clean-fuel vehicles], or [2] creating a mar-

ket for [clean-fuel vehicles] ... by requiring fleet operators

to purchase such vehicles{.]” 63 Fed. Reg. 20103, 20105

(Apr. 23, 1998) (emphasis added) (App. 49a).' In designing

the federal fleet purchasing program in section 246, 42

U.S.C. § 7586, Congress attributed decisive significance to

that distinction and, to protect the interests of manufactur-

ers, chose the latter option. The same distinction is equally

workable, and equally consistent with congressional intent,

- as a means of delimiting the scope of section 209(a).

STATEMENT

A. The Clean Air Act

The Clean Air Act (“CAA” or “Act”), 42 U.S.C. §§ 7401-

7671q, creates a cooperative federal-state framework “in the

struggle against air pollution.” General Motors Corp. v.

United States, 496 U.S. 530, 532 (1990). Congress instructed

EPA to establish national ambient air quality standards for

pollutants that “cause or contribute to air pollution which

may reasonably be anticipated to endanger public health or

welfare.” CAA § 108, 42 U.S.C. § 7408(a)(1)(A). And Con-

gress directed state and local governments to formulate

ways to attain these federal air quality standards. See CAA

§ 110, 42 U.S.C. § 7410.

Because pollutants originate from a variety of mobile

and stationary sources, CAA § 108, 42 U.S.C. § 7408(a)(1)(B),

the Act requires each state to create a “state implementa-

' This and other relevant materials, including the referenced provi-

sions of the Clean Air Act, are attached as an Appendix to this brief.

tion plan,” or “SIP,” for the regulation of all such sources.

CAA § 110, 42 U.S.C. § 7410; see also Train v. Natural Res.

Def. Council, Inc., 421 U.S. 60, 68 (1975) (describing SIP re-

gime as “a comprehensive planning task of the first magni-

tude”). Motor vehicle exhaust contributes heavily to air pol-

lution in many parts of the country, releasing into the at-

mosphere such toxins as carbon monoxide, nitrogen oxide,

and ozone. See S. Rep. No. 101-228, at 82-86 (1989) (noting

that “mobile vehicles are the largest source of ozone and

carbon monoxide pollution”). Congress has required states

with “nonattainment areas”—i.e., areas whose air quality

fails national air quality standards—-to adopt specific mobile

source pollution programs. See, e.g., CAA § 182, 42 U.S.C.

§ 7511a(b)(4), (¢)(5).

More broadly, Congress has recognized that air pollu-

tion control “is the primary responsibility of States and local

governments” and has confirmed its intent “to encourage

and assist the development and operation of regional air pol-

lution prevention and control programs.” CAA § 101, 42

U.S.C. $§ 7401(a)(3), (b)(4). To that end, in section 116 of the

Act, Congress has affirmed the states’ traditional authority

to “adopt or enforce (1) any standard or limitation respecting

emissions of air pollutants or (2) any requirement respecting

control or abatement of air pollution.” 42 U.S.C. § 7416.

This case concerns the scope of a statutory exception to that

general rule with respect to “standards” for the control of

motor vehicle emissions.

In 1957 California became the first state to undertake

“(c]jomprehensive statewide efforts” to control motor vehicle

emissions. Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d

1095, 1109 n.26 (D.C. Cir. 1979). Those efforts ultimately

included “production mandates” for manufacturers: 1.e., ob-

ligations that the vehicles they built and sold had devices

that could attain particular emissions characteristics. See S.

Rep. No. 90-403, at 33 (1967) (discussing “California’s ex-

perience with lower standards which will require new con-

trol systems and design”). In 1965, Congress followed Cali-

fornia’s example by enacting section 202 of the Clean Air

Act, authorizing for the first time the creation of federal

“standards applicable to the emission of any air pollutant

from any class or classes of new motor vehicles or new motor

vehicle engines.” 42 U.S.C. § 7521(a)(1). Like California’s

production mandates, the federal “standards” of section 202

are also directed at motor vehicle manufacturers, requiring

that the vehicles they produce meet certain numerical or

technology-based emission levels. See, eg., 42 U.S.C.

§ 7521(a)(3)(B)(2) (regulations for certain model years “shall

contain standards that [oxides of nitrogen] emissions may

not exceed 4.0 grams per brake horsepower hour”).

Following enactment of section 202, California and other

states either continued to enforce or proposed to implement

their own motor vehicle emission standards. See infra p. 21

& note 7. The automobile industry expressed concern about

the costs of complying with the divergent production man-

dates of the federal government and, potentially, dozens of

states. See, e.g., Senate Rep. No. 90-403, at 33 (“The auto

industry ... was adamant that the nature of their manufac-

turing mechanism required a single national standard in or-

der to eliminate undue economic strain on the industry.”).

Congress responded in 1967 with the enactment of the pre-

emption provision at issue in this case: section 209(a). See

42 U.S.C. § 7543(a).

Section 209(a) federalizes the field of emissions-related

production mandates, thereby marking an important, but

limited, exception to the states’ retained authority to regu-

late the sources of air pollution. Specifically, section 209(a)

bars states and localities from adopting or attempting to en-

force “any standard relating to the control of emissions from

new motor vehicles.” Jd. The debate over section 209(a)

sharpened the differences “between the states, which

wanted to preserve their traditional role in regulating motor

vehicles, and the manufacturers, which wanted to avoid the

economic disruption latent in having to meet fifty-one sepa-

rate sets of emissions control requirements.” Motor &

Equip. Mfrs. Ass’n, 627 F.2d at 1109. By preventing states

from enacting their own versions of the “standards” imposed

by the federal government in section 202, but not from im-

plementing emissions policies more generally, Congress

shielded the motor vehicle industry from conflicting produc-

tion mandates while leaving states with sufficient flexibility

to respond to local motor vehicle pollution problems. See

Allway Taxi, Inc. v. City of New York, 340 F. Supp. 1120,

1124 (S.D.N.Y.) (“(BJoth the history and text of the Act

show that the ... preemption section was made not to ham-

string localities in their fight against air pollution but to pre-

vent 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 ... for the manufacture and sale of new

cars.”), aff'd, 468 F.2d 624 (2d Cir. 1972).

Congress qualified the application of section 209(a) to

California in one key respect. In recognition of that state’s

“unique problems and pioneering efforts” in the field of air-

pollution regulation (S. Rep. No. 90-403, at 33), section 209(b)

authorizes California to apply to EPA for a waiver of pre-

emption so that it can establish “standards” of its own that

depart from the federal government’s standards. 42 U.S.C.

§ 7543(b). Section 209(b) provides that California’s “stan-

dards” must be “consistent with section [202]” and as “pro-

tective of public health and welfare as applicable Federal

standards.” Jd. § 7543(b)(1). The upshot is that only the

federal government and, to the extent permitted by EPA,

California may adopt and enforce “standards” for the control

of emissions from new motor vehicles or engines. The motor

vehicle industry is thus required to comply only with those

two standards in designing and producing motor vehicles.

See CAA §§ 202, 209, 42 U.S.C. §§ 7521(a), 7543(b).

In 1977 Congress further amended the Clean Air Act to

add section 177, which permits any state to adopt EPA-

approved California “standards” as its own. See 42 U.S.C.

§ 7507. To protect the motor vehicle industry from the spec-

ter of new production mandates, however, section 177 pro-

vides that the “standards” of opt-in states must be “identi-

cal” to those of California. Jd. “States exercising this sec-

tion 177 option may not, in such adoption and enforcement,

create a ‘third vehicle[ |’ that is not a California vehicle or a

49-state Federal vehicle[ |, because of the burden it would

place on the motor vehicle manufacturers.” A Legislative

History of the Clean Air Act Amendments of 1990, Senate

Comm. on Public Works, 103d Cong., Ist Sess., Serial No.

103-38, at 1787 (1993) (“1990 Legislative History”).

Finally, in 1990 Congress added a requirement that

states with particular “nonattainment” areas meet their fed-

eral clean air obligations either (i) by adopting a federal pro-

gram, set forth in section 246, for reducing the emissions of

fleet vehicles, see 42 U.S.C. § 7586, or (ii) by formulating an

alternative program that achieves the same ozone and car-

bon monoxide reductions, see CAA § 182, 42 U.S.C.

§ 75lla(c)(4)(B). The default federal program imposed in

section 246 requires covered fleet operators (those with 10

or more vehicles) to purchase a specified percentage of

clean-fuel vehicles and to run them with clean alternative

fuels. See id. § 7586(b). EPA has explained that “Congress

made a clear choice” in section 246 to “creat{e] a market for

[clean-fuel vehicles]...by requiring fleet operators to pur-

chase such vehicles” rather than to “requir{e] auto manufac-

turers to produce and sell” such vehicles. 63 Fed. Reg. at

20105 (emphasis added) (App. 49a). Senator Carl Levin of

Michigan likewise noted that the fleet purchasing require-

ments of section 246 were “carefully designed to avoid ...

mandated production and sales,” even though they certainly

do “create a substantial demand for [clean vehicles], giving

motor vehicle manufacturers a real incentive to bring them

into production.” 1990 Legislative History, at 7209.

B. The Fleet Rules

The California Air Resources Board, known as “CARB,”

is the state agency that exercises California’s authority un-

der section 209(b) to seek waivers for California-specific

emission “standards.” See Cal. Health & Safety Code

§§ 39003, 39601, 39602. For light- and medium-duty vehicles,

CARB has adopted—with EPA’s approval—several “tiers”

of motor vehicle emission standards: transitional low-

emission vehicles (“TLEV”), low-emission vehicles (“LEV”),

ultra-low-emission vehicles (“ULEV”), super-ultra-low-

emission vehicles (““SULEV”), and zero-emission vehicles

(“ZEV”). Each tier is assigned a set of numerical emission

levels for specific motor vehicle pollutants. See Cal. Code of

Regs., tit. 13, §§ 1960.1, 1961. Manufacturers may produce

vehicles in any of the tiers so long as they meet an overall

average emissions level. See id. For heavy-duty vehicles,

CARB has promulgated both general emission standards,

see id. § 1956.8, and more stringent standards for urban

transit buses, see id. §§ 1956.1, 1956.2. These CARB pro-

grams include “phase-in” requirements designed to create a

steady increase in the production of cleaner vehicles. See id.

$§ 1960.1, 1961, 1956.8.

Respondent South Coast Air Quality Management Dis-

trict (“District”), a political subdivision of California, is “the

sole and exclusive local agency within the South Coast Air

Basin with the responsibility for comprehensive air pollution

control.” Cal. Health & Safety Code § 40412; see generally

id. §§ 40400-40540. The largest agency of its kind, the Dis-

trict is responsible for the air quality of the nearly 15 million

people who live in the greater Los Angeles metropolitan

area, including major portions of the counties of Los Ange-

les, Orange, Riverside, and San Bernardino. See id.

§§ 40410, 40412. The District is governed by a board of 12

members, nine of whom are elected city and county officials.

See id. §§ 40420-40423.

Southern California has, to say the least, unique and se-

vere air pollution problems. Indeed, the Los Angeles Basin

is the only area of the United States designated in “extreme

nonattainment” of the national air quality ozone standards.

CAA § 181, 42 U.S.C. § 7511(a); 40 C.F.R. § 81.305. For the

most part, this is because of motor vehicle exhaust:

“{ajutomobiles have single-handedly ruined the atmosphere

of Los Angeles.” David P. Currie, Motor Vehicle Air Pollu-

tion: State Authority and Federal Preemption, 68 Mich. L.

Rev. 1083, 1084 (1970). Of necessity, the District has become

a leader in creating and implementing new air pollution con-

trol programs. See 59 Fed. Reg. 48664, 48681-48682 (Sept.

22, 1994).

In 1987 the California legislature gave the District,

among its other powers, authority to adopt “fleet rules” gov-

erning the purchase of public and commercial fleets of 15 or

more vehicles, such as urban transit buses, garbage trucks,

and airport shuttles operating within the South Coast Dis-

trict. Cal. Health & Safety Code § 40447.5. The District

adopted the Fleet Rules at issue in this case 13 years later,

shortly after CARB listed “particulate emissions from die-

sel-fueled engines” as “toxic air contaminant(s],” Cal. Code

Regs. tit. 17, § 93000, and after publication of startling new

data showing that fully 70% of the airborne cancer risk to

residents of the Los Angeles Basin could be traced to diesel

exhaust, JA 81-84, 258-274.

The Fleet Rules (JA 16-74) require certain fleet opera-

tors to obtain low-emission or alternative-fuel vehicles—

rather than diesel-fuel vehicles—that have been approved

_by CARB. The vehicles meeting those requirements are

thus a subset of the vehicles currently available and certified

for use in California. Jd. at 219. The Fleet Rules govern

public entities with fleets of light- and medium-duty passen-

ger vehicles (Rule 1191); public entities with fleets of public

transit vehicles or urban buses (Rule 1192); public and pri-

vate entities with fleets of solid waste collection vehicles

(Rule 1193); public and private entities with fleets of passen-

ger airport transportation vehicles, including shuttle and

taxicab pickup services (Rule 1194); public and private enti-

ties with fleets of street sweepers (Rule 1186.1); and public

entities with fleets of heavy-duty vehicles (Rule 1196). To

ease compliance, several of the Fleet Rules did not go into

effect until almost a year after their enactment. /d. at 19, 54,

68. The vast majority, but not all, of the affected fleets are

owned and operated by California public agencies. /d. at 24,

46, 66.

The Fleet Rules exempt fleet operators from purchas-

ing the designated types of low-emission or alternative-fuel

vehicles when they can show that such vehicles are not

— ~

——<- *

commercially available, in which event the operators are

free to buy any other CARB-certified vehicle. JA 21-22, 30,

50, 55, 63, 69-71. Even where designated vehicles are avail-

able, fleet operators may, in some circumstances, receive an

exemption if they show that those vehicles are not cost-

effective or useful. E.g., id. at 69-70. Significantly, the Fleet

Rules impose no production mandates or any other require-

ments on manufacturers. The only such mandates are those

imposed by the federal government and, with EPA’s ap-

proval, CARB.

C. Proceedings Below

In August 2000 petitioner Engine Manufacturers Asso-

ciation sued the District, alleging that the Fleet Rules are

preempted by sections 209 and 177 of the Clean Air Act.

JA 5. Petitioner Western States Petroleum Association in-

tervened as a plaintiff, and respondents Coalition for Clean

Air, Inc., Natural Resources Defense Council, Inc., Commu-

nities for a Better Environment, Inc., Planning and Conser-

vation League, and Sierra Club intervened as defendants.

Id. at 5, 6.

On cross-motions for summary judgment, the district

court granted summary judgment to respondents and up-

held the Fleet Rules. Pet. App. 3a-27a. Based upon the un-

disputed evidencé, it found that the Los Angeles Basin has

“the most serious air quality problems in the nation,” that

“{o)n-road motor vehicles ... are a principal source of toxic

pollution,” and that “[tJhe presence of high quantities of fine

particles in the air has been shown to lead to higher mortal-

ity rates, greater occurrences and severity of asthma, car-

diovascular disease, and potentially to a higher incidence of

cancer.” Id. at 5a-6a. The Clean Air Act, the court contin-

ued, “makes clear that the states retain the leading author-

ity in regulating matters of health and air quality.” Jd. at 8a.

The court also determined that, under this Court’s prece-

dents, section 209(a) “must be narrowly and strictly con-

strued” because it addresses the states’ historic police pow-

ers. Id.

The district court held that the Fleet Rules “do not set

‘a standard relating to the control of emissions,’” as pro-

scribed by section 209(a), because they “impose no new

emission requirements on manufacturers whatsoever, and

therefore do not run afoul of Congress’s purpose behind mo-

tor vehicle preemption: namely, the protection of manufac-

turers against having to build engines in compliance with a

multiplicity of standards.” Pet. App. 21a. The court con-

trasted the Fleet Rules to the ZEV sales-quota programs of

New York and Massachusetts, which were considered

“standards” because they “mandated that a [certain] speci-

fied percentage of cars sold by manufacturers in any model

year be ZEVs.” /d. at 22a-23a (discussing Association of

Int'l Auto. Mfrs., Inc. v. Commissioner, Mass. Dep't of

Envtl. Prot., 208 F.3d 1, 7 (1st Cir. 2000), and American

Auto. Mfrs. Ass’n v. Cahill, 152 F.3d 196, 200 (2d Cir. 1998)).

“Rather than imposing any numerical control on new vehi-

cles,” the court reasoned, the Fleet Rules “regulate the pur-

chase of previously-certified vehicles” and leave manufac-

turers free “to sell any vehicle which is otherwise certified in

California.” Jd. at 21a, 23a.

The court of appeals affirmed on the basis of the district

court’s opinion. /d. at la-2a.

SUMMARY OF ARGUMENT

Section 209(a) provides: “No State or any political sub-

division thereof shall adopt or attempt to enforce any stan-

dard relating to the control of emissions from new motor ve-

hicles or new motor vehicle engines[.]” Despite petitioners’

labored exegesis of various words in that sentence, it is

common ground that section 209(a) cannot preempt the

Fleet Rules unless, among other things, those Rules consti-

tute “standards.” As the Justice Department notes (U.S. Br.

15), that term has “varied usage[s] .. . throughout the Clean

Air Act,” and its meaning within section 209(a) must be dis-

cerned “primarily by context” and the statutory structure.

Here, the only way to make sense of the statutory

scheme is to construe the “standards” preempted under sec-

tion 209(a) as coextensive with the types of “standards” that

the federal government itself imposes under section 202 of

the Clean Air Act: i.e., production mandates that require

manufacturers to ensure that the vehicles they produce have

particular emissions characteristics, whether individually or

in the aggregate. EPA itself put it best in 1999 when, in re-

sponse to a primary jurisdiction referral, it declared that a

“standard” for purposes of section 209(a) is a “requirement

to produce a certain number or percentage of vehicles (‘pro-

duction requirement’) to meet a numerical emissions limita-

tion”; that this “requirement to produce vehicles is in fact

part of the emission standard”; and that “(t]his combination

of an emissions limit and a requirement to produce vehicles

meeting that limit is key to evaluating certain central issues

in standard setting.” Letter from Gary 8S. Guzy (EPA) to

the Honorable Thomas F. Reilly, Sept. 15, 1999, at 8-9 (App.

70a-72a).

Section 209(a) thus preempts state-level production

mandates, but not regulations and policies that—like state

incentive plans or these fleet purchase requirements—

merely enlarge the market for cleaner vehicles by creating

greater demand for them. Petitioners’ much broader view of

the “standards” preempted by section 209(a) would unmoor

that term from its meaning in section 202 and would give

rise to needless interpretive anomalies in the relationships

between section 209(a) and 209(b) and between the first and

second sentences of section 209(a) itself. Petitioners’ read-

ing also flies in the face of the traditional “presumption

against the pre-emption of state police power regulations,”

which requires “a narrow interpretation” even of express

preemption provisions. Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996) (internal quotation marks and citation omit-

ted).

Quite apart from these textual considerations, petition-

ers’ theory of section 209(a) is untenable because it is irre-

mediably overbroad. As the Justice Department concedes

(U.S. Br. 17 n.4), section 209(a) cannot plausibly be read to

preempt the many existing state and local programs that

give purchasers substantial incentives to buy cleaner vehi-

cles and that therefore, in practice, encourage manufactur-

ers to produce more of them. For preemption purposes,

there is no valid distinction between those presumptively

valid incentive programs and the fleet purchasing restric-

tions at issue here. Although the Fleet Rules (unlike incen-

tive programs) impose direct requirements on purchasers,

the relevant question under the Clean Air Act is whether

the program at issue imposes compulsory duties on manu-

facturers. Like incentive programs, the Fleet Rules impose

no such obligation. To be sure, also like incentive programs,

the Fleet Rules may “encourage vehicle manufacturers to

sell ... vehicles with particular emission characteristics”

(U.S. Br. 17 n.4) to accommodate increased demand. But

that is not the test, as the Justice Department acknowledges

(id.); if it were, incentive programs would all be preempted.

And, from a manufacturer’s perspective, there is no reason

in principle why a locality’s fleet purchasing requirements

should be any more or less likely to have that demand-side

effect than a successful incentive program—particularly

where, as here, the fleet purchasers can invoke an exemp-

tion whenever the specified vehicles are commercially un-

available.

In sum, section 209(a) draws the line between, on the

one hand, preempted production mandates that compel

manufacturers to conform the vehicles they produce to cer-

tain emission or fuel requirements and, on the other hand,

non-preempted programs that merely encourage manufac-

turers to produce such vehicles by enlarging the market for

them. Although petitioners criticize this line as “nonsensi-

cal” (Br. 25), it is anything but; indeed, it is the very line

Congress separately drew in designing the federal fleet pro-

gram under section 246 of the Act. As EPA has explained,

Congress’s desire to promote the introduction of clean-fuel

vehicles presented “a clear choice between two alternatives:

requiring auto manufacturers to produce and sell [clean-fuel

vehicles], or creating a market for [those vehicles] . . . by re-

quiring fleet operators to purchase such vehicles[.]” 63 Fed.

Reg. at 20105 (emphasis added) (App. 49a). Congress chose

———

ern ae

RR PB.

-_-_-—_>

—

the latter approach, rather than the former, to balance the

interests of manufacturers against its environmental objec-

tives. Section 209(a) is properly read to serve the same goal

by drawing the same line—i.e., between permissible de-

mand-side regulation of purchasing decisions and impermis-

sible production mandates imposed directly on manufactur-

ers. Any concern about the long-run merits of that line

should be addressed to the political branches, not to the

courts.

Petitioners suggest—for the first time in this Court—

that the federal fleet program itself somehow preempts

state and local alternatives to that program. Any such ar-

gument is waived and, in all events, is implausible on the

merits. Section 246 requires states with non-attainment ar-

eas to adopt either the federal fleet program or some EPA-

approved alternative; it does not purport to authorize states

to adopt otherwise preempted programs, because no such

authorization is needed. And petitioners’ grab bag of other

statutory provisions is similarly unhelpful to their position.

Section 177 does not apply to the District; it would not pre-

empt these Fleet Rules even if they had been adopted by

some state or locality outside of California; and it would not

be anomalous in any event to shield California and its politi-

cal subdivisions from the preemptive effect of that provision,

given California’s special status as the locus of unique pollu-

tion problems and as the pioneer of clean air initiatives. Fi-

nally, the savings clause of section 209(d) confirms that

states may “restrict the use” of motor vehicles in various

respects and, as such, does not remotely speak to the scope

of section 209(a)’s preemption of “standards.”

There is also no merit to the suggestion that section

209(a) should be construed expansively because California

may seek EPA approval of otherwise preempted clean air

regulations under section 209(b). The expansive interpreta-

tion of section 209(a) that petitioners advocate would have

nationwide application, and 49 of the 50 states aggrieved by

that interpretation would find no solace in the California-

specific provisions of section 209(b). In all events, the

threshold question is whether a state program imposes a

“standard.” If it does not, it would be both unnecessary and

inimical to principles of state sovereignty to force states to

seek prior approval from federal regulators before imple-

menting environmental programs designed to suit local

needs and achieve federally-mandated overall air-quality

targets. Nothing in section 209(a) strips the states of their

core sovereign authority to address such local concerns

through environmental initiatives other than productien

mandates.

ARGUMENT

THE FLEET RULES ARE PERMISSIBLE BECAUSE

THEY ENHANCE THE MARKET FOR CLEAN-FUEL

VEHICLES WITHOUT IMPOSING PRODUCTION

MANDATES ON MANUFACTURERS.

I. THE “STANDARDS” PREEMPTED UNDER SECTION

209(a) ARE THE SAME TYPE OF “STANDARDS”—

PRODUCTION MANDATES—THAT THE FEDERAL GOV-

ERNMENT IMPOSES ON MANUFACTURERS UNDER SEC-

TION 202.

The scope of section 209(a)’s prohibition on state or local

“standards” is coextensive with the type of production man-

dates that the federal government itself imposes on manu-

facturers under section 202 of the Clean Air Act, also under

the name “standards.” As discussed below, that construc-

tion: (1) is consistent with the most applicable dictionary

definition of the term; (2) is the only way to make sense of

the statutory structure as a whole; (3) follows EPA’s own

consistent understanding of the term for purposes of both

sections 202 and 209(b); (4) avoids the interpretive anomalies

that petitioners’ alternative construction would produce; and

(5) remains faithful to this Court’s rule favoring a narrow

construction of express preemption clauses in cases of ambi-

guity.

1. “Legislation designed to free from pollution the

very air that people breathe clearly falls within the exercise

of even the most traditional concept of what is compendi-

ously known as the police power.” Huron Portland Cement

Co. v. Detroit, 362 U.S. 440, 442 (1960). Historically, the

states played the predominant role in mitigating air pollu-

tion from all sources, including motor vehicle exhaust. Cali-

fornia, for example, preceded the federal government by a

number of years in subjecting manufacturers to standards

for reducing motor vehicle emissions. See Motor & Equip.

Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1108-09 & nn.25, 26 (D.C.

Cir. 1979). The Clean Air Act builds upon the states’ tradi-

tional police powers and makes them and the federal gov-

ernment “partners in the struggle against air pollution.”

General Motors Corp. v. United States, 496 U.S. 530, 532

(1990). To that end, the Act generally preserves the states’

authority to “adopt or enforce (1) any standard or limitation

respecting emissions of air pollutants or (2) any requirement

respecting control or abatement of air pollution.” CAA §

116, 42 U.S.C. § 7416.

Section 209(a) is a limited exception to this retained au-

thority, preempting any “standard relating to the control of

emissions from new motor vehicles.” 42 U.S.C. § 7543(a).

The principal question in this case is the meaning of the

word “standard” as it appears in this provision. Stated sim-

ply, if a state or local rule does not qualify as a “standard,” it

falls outside the preemptive scope of section 209(a). Peti-

tioners devote many pages to a sweeping interpretation of

the term “relating to” in the clause following the word

“standard”—an interpretation that contradicts this Court’s

consistent recognition, in cases after Morales v. Trans

World Airlines, Inc., 504 U.S. 374 (1992), of the inevitable

. By 1963—two years before the federal government first enacted

motor vehicle emission control standards—40 states had begun to address

air pollution, with seven of those states plus the District of Columbia spe-

cifically targeting motor vehicle emissions. See U.S. Dep’t of Heath, Edu-

cation and Welfare, A Digest of State Air Pollution Laws (1963 ed.), at 11-

19 (California), 39 (Colorado), 46 (District of Colombia), 92 (Indiana), 94

(Kansas), 115 (Michigan), 124 (New Hampshire), 139 (New York).

need for a narrow construction of “relating to” clauses.’ But

this Court need not revisit the meaning of such clauses here,

because petitioners’ argument fails on more fundamental

grounds. Congress preempted only “standard|[s] relating to

the control of emissions.” It did not more expansively pre-

empt any “law, rule, regulation, standard, or other provision

having the force and effect of law relating to” the applicable

subject matter—the preemption language at issue in

Morales. See id. at 383 (internal quotation marks and cita-

tion omitted).

The text of section 209 underscores the importance of

that distinction. Section 209(e), applicable only to certain

“nonroad vehicles,” preempts any state or local “standard or

other requirement relating to the control of emissions” of

those vehicles. 42 U.S.C. § 7543(e) (emphasis added). The

omission of similar language in the parallel provision of sec-

tion 209(a) establishes, at a minimum, that at least some

state or local requirements “relating to the control of emis-

sions” of the on-road vehicles at issue here are not “stan-

dards.” Here, as in other settings, “[w]here Congress in-

cludes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” General Motors Corp.

v. United States, 496 U.S. 530, 538 (1990) (internal quotation

marks and citations omitted).

* See, e.g., New York State Conference of Blue Cross & Blue Shield

Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (“If ‘relate to’ were

taken to extend to the further stretch of its indeterminacy, then for all

practical purposes pre-emption would never run its course, for really, uni-

versally, relations stop nowhere.”) (internal quotation marks and citation

omitted); California Div. of Labor Standards Enforcement v. Dillingham

Constr., N.A., Inc., 519 U.S. 316, 325 (1997) (“ ‘an uncritical literalism’ ” in

applying the “relates to” language “offer{s] scant utility in determining

Congress’ intent”) (quoting Travelers, 514 U.S. at 656); id. at 335 (Scalia,

J., concurring) (“applying the ‘relate to’ provision according to its terms

was a project doomed to failure, since, as many a curbstone philosopher

has observed, everything is related to everything else”).

Properly construed, the class of “standards” preempted

under section 209(a) excludes the fleet purchase require-

ments at issue here. Claiming that “this case begins and

ends with the text of Section 209(a),” petitioners selectively

offer up the broadest dictionary definition of the word

“standard.” Pet. Br. 22,24. But that term means dissimilar

things in different settings, as a glance at any dictionary re-

veals. Indeed, the term has “varied usage[s] . . . throughout

the Clean Air Act” itself, as the Justice Department notes,

and the task of construing its meaning within section 209(a)

is informed “primarily by context.” U.S. Br. 15. The defini-

tion that most closely fits this context, and that comes near-

est to specifying the field that Congress wished to federalize,

is “carefully drawn specifications covering manufacturing

material or equipment.” Webster’s Third New Int'l Diction-

ary 2223 (1993). In the automotive industry, an “emissions

standard” is a “manufacturing specification” for motor vehi-

cle emissions, see, e.g., infra pp. 20-21, and section 209(a)

prevents states from adopting or enforcing such a “stan-

dard”—1.e., subjecting manufacturers to a mandate that the

vehicles they produce meet specified emissions levels, either

individually or in the aggregate.

That is indeed the only way to make sense of the overall

statutory structure. Because “[a]mbiguity is a creature not

of definitional possibilities but of statutory context,” Brown

v. Gardner, 513 U.S. 115, 118 (1994), it is a “fundamental

canon of statutory construction that the words of a statute

must be read in their context and with a view to their place

in the overall statutory scheme,” Davis v. Michigan Dep't of

Treasury, 489 U.S. 803, 809 (1989); see also Whitman v.

American Trucking Ass’n, 531 U.S. 457, 466 (2001) (“Words

that can have more than one meaning are given content ...

by their surroundings[.]”). Here, section 209(a) is a compan-

ion provision to section 202 of the Clean Air Act, which es-

tablishes emissions “standards” for the motor vehicle indus-

try by requiring that the vehicles or engines that manufac-

turers produce meet defined emissions criteria. See 42

U.S.C. § 7521. The only way to achieve symmetry and co-

herence between these two provisions, and fit them within a

“harmonious whole,” FTC v. Mandel Bros., Inc., 359 U.S.

385, 389 (1959), is to construe the scope of the “standards”

preempted by section 209(a) as coextensive with the type of

“standards”—production mandates—imposed under section

202. Remarkably, however, both petitioners and the Justice

Department—which acknowledges that “standard” has var-

ied meanings under the Act (U.S. Br. 15)—largely ignore the

most applicable use of the term, in section 202.

A brief review of that provision will help clarify the na-

ture of these “standards.” Congress enacted Title II of the

Clean Air Act in 1965 to address the serious threat to the

public health posed by emissions from motor vehicles. See

H.R. Rep. No. 89-899, at 3 (1965) (Title II addresses “air pol-

lution, especially emanating from motor vehicles, affecting

thousands of communities in all parts of the country and im-

posing a serious threat to public health and national wel-

fare”). Central to that effort was section 202, which author-

ized—for the first time—the enactment of federal “stan-

dards applicable to the emission of any air pollutant from

any class or classes of new motor vehicles or new motor ve-

hicle engines.” 42 U.S.C. § 7521(a)(1). These federal “stan-

dards” are directed at motor vehicle manufacturers, and re-

quire them to produce vehicles that meet certain numerical

or technology-based emission levels.

In particular, section 202 consistently defines “stan-

dards” in terms of the quantity of pollutants that may be

emitted from new motor vehicle tailpipes. To take just one

example, regulations for heavy-duty trucks “shall contain

standards which provide that [oxides of nitrogen] emissions

may not exceed 4.0 grams per brake horsepower hour.” 42

U.S.C. § 7521(a)(3)(B\(ii).* Such “standards” often apply by

* See also id. § 7521(aX3)A)i) (providing that standards for certain

pollutants shall “reflect the greatest degree of emission reduction achiev-

able through the application of technology which the Administrator de-

termines will be available”); id. § 7521(b1\C) (discussing “numerical

emission standards specified in subsections (a3) B)ii), (g), (h), and (i)”);

id. § 7521(g)(1) (mandating “standards which provide that emissions from

“model year,” which is defined as “the manufacturer’s annual

production period.” Jd. § 7521(b\(3)(A)(i). In these and

other cases, a manufacturer may not sell, introduce, or de-

liver a motor vehicle or motor vehicle engine that has not

been certified as compliant with the applicable federal

“standards.” CAA § 203, 42 U.S.C. § 7522(a)(1).°

Following enactment of section 202, several states inde-

pendently acted or proposed to exercise their traditional po-

lice powers to impose their own production mandates for

tailpipe emissions. This threatened a balkanized system of

a percentage of each manufacturer’s sales volume of |light-duty| vehicles

and trucks shall comply with the levels specified in table G [expressed in

grams per mile]”); id. § 7521(j)(1) (prescribing “standards which provide

that emissions of carbom monoxide from a manufacturer’s vehicles when

operated at 20 degrees Fahrenheit may not exceed” specified “grams per

mile”).

The first regulations enacted under section 202 expressed “stan-

dards for exhaust emissions” in numerical terms. 31 Fed. Reg. 5170 (Mar.

30, 1966) (defining “standards for exhaust emissions” as “40 parte per

million” for hydrocarbons and “2.3 percent by volume” for carbon renox-

ide).

* See id. § 7521(b\(1)(A) (requiring that “light-duty vehicles and en-

gines manufactured during the model year 1980 . . . contain standards

which provide that such emissions may not exceed 7.0 grams per vehicle

mile”); id. § 7521(b)(1)(B) (mandating that “light-duty vehicles and engines

manufactured during model years 1977 through 1980 shall contain stan-

dards that [oxides of nitrogen] emissions . .. may not exceed 2.0 grams per

vehicle mile”).

* See also CAA § 206, 42 U.S.C. § 7525(a)(1) (“The Administrator

“shall test . . . any new motor vehicle . . . submitted by a manufacturer to

determine whether such vehicle . . . conforms with the regulations pre-

scribed under section [202]"); CAA § 202, 42 U.S.C. § 7521(b)(3) (entitling

“manufacturer|s|" to seek a waiver from EPA of certain standards).

” See Motor & Equip. Mfrs. Ass'n v. EPA, 627 F.2d at 1108-09 &

nn.25, 26; H.R. Rep. No. 89-899, at 5 (referencing “steps taken or proposed

in many States to deal with motor vehicle pollution”); Currie, supra, 68

Mich. L. Rev. at 1089 (“Despite the 1965 federal standards, several states

proceeded to consider or to enact legislation concerning vehicle emis-

sions.”); U.S. Dep’t of Health, Education, and Welfare, A Digest of State

Air Pollution Laws 101 (1967 ed.) (discussing 1967 Connecticut law au-

thorizing agency to require “an effective air pollution control device” and

“standards for such devices”); id. at 337 (discussing 1966 New Jersey law

state and federal emission “standards,” under which motor

vehicle manufacturers might have faced dozens of vastly di-

vergent regulatory obligations in designing and producing

vehicles. “The auto industry ... was adamant that the na-

ture of their manufacturing mechanism required a single na-

tional standard in order to eliminate undue economic strain

on the industry.” S. Rep. No. 90-403, at 33; see also H.R.

Rep. No. 95-294, at 309-311 (1977) (section 209 responded to

the concern that “vehicle manufacturers not be subject to 50

different sets of requirements relating to emission controls

which would unduly burden interstate commerce”).

The competing concerns of the states and the motor ve-

hicle manufacturers form the backdrop to Congress’s enact-

ment of section 209(a) in 1967.

[Bjoth the history and text of the Act show that the

... preemption section was made not to hamstring

localities in their fight against air pollution but 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 ... for the

manufacture and sale of new cars.

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). The de-

bate was “between states, which wanted to preserve their

traditional role in regulating motor vehicles, and the manu-

facturers, which wanted to avoid the economic disruption

latent in having to meet fifty-one separate sets of emissions

control requirements.” Motor & Equip. Mfrs. Ass'n, 627

F.2d at 1109; ef. Motor Vehicle Mfrs. Ass'n of United States,

Inc. v. New York State Dep't of Envt’l Conservation, 79 F.3d

1298, 1301 (2d Cir. 1996) (noting “competing goals of Con-

authorizing agency to “establish| | standards and requirement for

of air contaminants from motor vehicles”); id. at 357 (discussing 1966 New

York law authorizing agency to implement “an air contaminant emission

control system .. . in accordance with standards promulgated by the Air

Pollution Control Commission”).

gress’ clean air legislation, one of which is to protect manu-

facturers from regulatory chaos by preventing states from

enacting multiple contradictory emissions standards, and the

other of which is to safeguard public health by reducing the

levels of toxic pollutants spouting from automobile tailpipes

into the air we all must breathe”). Congress resolved that

debate in section 209(a) by making exclusive the federal

power under section 202 to impose “standards”—i.e., pro-

duction mandates—while otherwise leaving states and lo-

calities with authority sufficient to respond to particularized

motor vehicle pollution problems.*

2. EPA itself has equated the meaning of “standard”

in section 209(a) with its meaning in section 202 and has re-

peatedly explained that the term includes, as an essential

element, a “production mandate”—a fact that may explain

EPA’s unorthodox and otherwise puzzling omission from the

Justice Department’s brief in support of petitioners. In

1999, for example, EPA stated that a section 209(a) “stan-

dard” is a “requirement to produce a certain number or per-

centage of vehicles (‘production requirement’) to meet a nu-

merical emissions limitation” or “a numerical emission limi-

tation and the number of vehicles that are subject to that

limitation.”” Twenty years earlier, in 1979, EPA similarly

* The legislative history of the preemption section reinforces that

conclusion. The author of S. 780—which was enacted without any mate-

rial change to what is now section 209(a)—explained that preemption ex-

tended only to “the right to set standards on automobile exhaust emis-

sions.” 113 Cong. Rec. 19173 (1967) (statement of Sen. Muskie) (emphasis

added). That understanding of the “standards relating to the control of

emissions” language was also shared by the relevant House and Senate

committees. See S. Rep. No. 90-403, at 34 (“The committee has provided

for Federal preemption of the right to set standards on new motor vehicles

and new motor vehicle engines ovly.”) (emphasis added); H.R. Rep. No.

90-728, at 36 (section 20%a) preempts “the power /of states] to set stan-

dards on emissions from new motor vehicles and engines”) (emphasis

added).

* See Letter from Gary S. Guzy (EPA) to the Honorable Thomas F.

Reilly, Sept. 15, 1999 (“EPA Op. Letter”), at 8 (submitted in response to

primary jurisdiction referral in American Auto. Mfrs. Ass'n v. Massachu-

explained—and the D.C. Circuit agreed—that “the word

‘standards’ connotes a numerical value setting the quantita-

tive level of permitted emissions of pollutants by a new mo-

tor vehicle.” Motor & Equip. Mfrs. Ass’n, 627 F.2d at 1111;

see also id. at 1111-1112 (agreeing that “standards” are

“quantitative levels of emissions,” such as “a regulation lim-

iting motor vehicle emissions of carbon monoxide to 3.4

grams per mile”).

Although the Justice Department notes that the term

can include more than “quantitative measures of tailpipe

emissions for particular vehicles,” that is only because (as

the Department concedes) EPA and Congress have also ex-

ercised the federal standard-setting authority to “allow

[some] manufacturers to choose what mix of vehicles to pro-

duce to attain fleetwide averages.” U.S. Br. 15 n.3 (empha-

sis added); see also id. at 23 n.7. Either way, the term signi-

fies a production mandate addressed to, and imposed on,

manufacturers. The Fleet Rules impose nothing of the kind.

Similarly, the Justice Department contends that, under

EPA’s usage, “the term ‘standard’ includes both emissions-

related criteria and the imposition of such criteria on an

identified group of vehicles.” U.S. Br. 23 n.7. But this sim-

ply confirms that, as applied to manufacturers, “criteria” and

“the imposition of such criteria” are both necessary elements

of a production mandate. On that issue, EPA can speak for

itself: “the requirement to produce vehicles is in fact part of

the emission standard,” and “[{t}his combination of an emis-

sions limit and a requirement to produce vehicles meeting

that limit is key to evaluating certain central issues in stan-

setts Dep't of Envt'l Protection, 163 F.3d 74 (1st Cir. 1998)) (App. 70a). As

discussed at note 15, infra, the First Circuit ultimately accepted

EPA’s interpretation and determined that Massachusetts’s zero-emissions

vehicle (“ZEV”) sales-quota program—which included "numerical produc-

tion requirements”—imposed a “standard” as used in section 209(a). As-

sociation of Int'l Auto. Mfrs., Inc. v. Commissioner, Mass. Dep't of Envt'l

Prot., 208 F 3d 1, 6-7 (1st Cir. 2000); accord, American Auto. Mfrs. Ass'n

v. Cahill, 152 F 3d 196, 200 (2d Cir. 1998) (holding preempted similar New

York ZEV program).

dard setting.” EPA Op. Letter, at 9 (App. 70a-71a). In sum,

EPA has consistently interpreted the state “standards” pre-

empted by section 209%(a) as coterminous with the federal

production mandates imposed under section 202. See id.

(“There is little reason to believe that Congress intended a

substantially different interpretation of standard under sec-

tion 209 than that under section 202.”); accord American

Aiuto. Mfrs. Ass'n vy. Commissioner, 998 F. Supp. 10, 22 (D.

Mass.), aff%, 208 F.3d 1 (ist Cir. 1997) (“{I]}t is unlikely that

Congress intended the term “standards” to have a different

meaning when referring to state standards as compared to

federal standands.”).

3. There-is no basis for petitioners’ contrary view that

the scope of the term “standard” in section 209(a)’s preemp-

tion provision greatly exceeds the scope of the identical term

im section 202. To begin with, that position contradicts the

traditional “presumption against the pre-emption of state

police power regulations,” which prescribes “a narrow inter-

pretation” of express preemption provisions in cases of

doubt. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (in-

ternal quotation marks and citation omitted); see also De-

Buono v. NYSA-ILA Med. Clinical Servs. Fund, 520 U.S.

806, 814 (1997). In this regard, petitioners blink reality

when they claim (Br. 22) that there is “no ‘tradition’ of state

regulation of motor vehicle emissions.” As discussed, this

Court has made clear that regulation of air pollution falls

squarely within “even the most traditional concept of . . . the

police power.” Hwron, 362 U.S. at 442. And a number of

states had begun regulating, or had made plans to regulate,

tailpipe emissions around the time the federal government

imposed production mandates of its own. See supra p. 21 &

note 7; compare United States v. Locke, 529 U.S. 89, 108

(2000) (addressing state laws “bear[ing] upon national and

international maritime commerce,” an area in which “Con-

gress has legislated . . . from the earliest days of the Repub-

lie”). Indeed, even the Justice Department acknowledges

the states’ “traditional role in regulating motor vehicles.”

U.S. Br. 19."°

In addition, petitioners’ expansive definition of the pre-

empted “standards” would create a mismatch not just be-

tween section 209(a) and section 202, but also between sec-

tion 209(a) and section 209(b). Section 209(b) permits Cali-

fornia to adopt “standards” of its own so long as they are

“consistent with section (202]” and as “protective of public

health and welfare as applicable Federal standards.” 42

U.S.C. § 7543(b)(1); see also S. Rep. No. 90-403, at 33 (noting

that California “standards on automobile emissions” may “be

more stringent than national standards”). But comparing

As petitioners note (Br. 22), Justice Douglas’s opinion for the

Court in Washington v. General Motors Corp., 406 U.S. 109 (1972), con-

tains the unelaborated statement that “Congress has largely pre-empted

the field with regard to ‘emissions from new motor vehicles.’” /d. at 114

(quoting a portion of the then-current version of section 20%a)). The

Court’s only holding in that case, however, was a decision not to exercise

its original jurisdiction over an antitrust suit that various states had

brought against the major auto makers. The statement in question was

dictum, and indeed the Court’s_decision as a whole cuts in favor of the

construction of section 209(a) adopted by the lower courts in this case.

The plaintiff states in Washington had alleged a conspiracy among

the manufacturers “to restrain the development of motor vehicle air pollu-

tion control equipment” and had sought, among other things, “an injunc-

tion requiring the |manufacturers) to undertake ‘an accelerated program

of spending, research and development designed to produce a fully effec-

tive pollution control device or devices and/or pollution free engine at the

earliest feasible date.’” 406 U.S. at 111-112. Put differently, the states

sought to impose through the back door of antitrust litigation what section

209(a) keeps them from imposing through the front door of prescriptive

regulation: production mandates, as to which Congress has indeed “pre-

empted the field.” Jd. at 114. The Court nonetheless viewed the states’

claims as sufficiently plausible on the merits that it decided to “remit the

parties to the resolution of their controversies in the customary forum”—

the district court—on the ground that those courts would be more capable

of taking into account the “geophysical characteristics which define local

and regional airsheds” and thus of establishing “(t]he nature of the rem-

edy which may be necessary, if a case for relief is made out.” Id. at 114-15

(emphasis added). Here, of course, the District seeks no “relief” whatso-

ever against the manufacturers, because its regulations address only the

purchasing decisions of fleet operators within the District’s jurisdiction.

SS aS ee Ss Sa

California’s “standards” to “applicable Federal standards”

can be a meaningful exercise only if the former fall within

the same category of regulatory requirements as the latter.

And it would make no sense to construe the term “stan-

dards” to mean one thing in section 209(b) but something

different or broader in section 209(a). Indeed, “{t}he plain

meaning of the statute indicates that Congress intended to

make the waiver power [in section 209(b)] coextensive with

the preemption provision [in section 209(a)].”. Motor &

Equip. Mfrs. Ass’n, 627 F.2d at 1107.

The Justice Department suggests that the section

209(b) waiver process makes it more palatable to construe

section 209(a)’s preemption expansively, reasoning that sec-

tion 209(b) ensures “a balance between the national interest

in uniform federal requirements and the state interest in de-

veloping additional initiatives in response to local condi-

tions.” U.S. Br. 21. This logic is untenable for at least two

reasons. First, the waiver process is unavailable to any of

the 49 states other than California (except in the limited

sense that, under section 177, they may adopt exactly the

same standards that California adopts). As to those states,

the section 209(b) process would neither preserve “addi-

tional initiatives in response to local conditions” nor, more

generally, “balance” the unduly broad interpretation of sec-

tion 209(a) that petitioners seek here on a nationwide basis.

Second, the relevant rule of construction is that, in cases

of doubt, express preemption provisions should be given “a

narrow interpretation” to accommodate a state’s sovereign

interest in exercising its traditional police powers. Med-

tronic, 518 U.S. at 485. That rule has particular force in the

Clean Air Act context, where states and their subdivisions

confront a zero-sum game: if overall reductions in air pollu-

tion that are mandated by federal law cannot come from the

mobile sources that most aggravate the problem, they must

come from other sources.'' Section 209(b) notwithstanding,

the question here remains whether section 209(a) manifests

a clear congressional intent to strip the states of their tradi-

tional authority to reduce air pollution through targeted

fleet purchasing restrictions tailored to local clean air prob-

lems. If the answer to that question is no, as it is for the

reasons discussed, it would be as inappropriate and intrusive

as it is unnecessary to make California and the District jump

through bureaucratic hoops in speculative pursuit of ulti-

mate EPA approval of those restrictions. Where inessential

to serve some clear and overriding federal objective, “the

inevitable effect of any such law which forces any one of the

States to entreat federal authorities in faraway places for

approval of local laws before they can become effective is to

create the impression that the State or States treated in this

way are little more than conquered provinces.” South Caro-

lina v. Katzenbach, 383 U.S. 301, 359-360 (1966) (Black, J.,

concurring in part and dissenting in part).

Finally, petitioners’ position would give rise to yet an-

other statutory anomaly, this one involving the relationship

between the first sentence of section 209(a), on which peti-

tioners rely, and the second sentence, which by its plain

terms and by petitioners’ admission (Pet. Br. 28) is inappli-

cable here. That second sentence prevents states from re-

quiring a “certification, inspection, or any other approval

relating to the control of emissions ... as a condition prece-

dent to the initial retail sale, titling (if any), or registration of

'' The District, for example, must meet federal air-quality require-

ments for particulate matter by 2006, see CAA §188, 42 U.S.C.

§ 7513(c)(2), (e); 68 Fed. Reg. 19316 (Apr. 18, 2003); and for ozone by 2010,

see CAA § 181, 42 U.S.C. § 7511(a)(1); 65 Fed. Reg. 6091, 6100 (Feb. 8,

2000). Although so much of the ozone and particulafé-matter pollution in

the Los Angeles Basin—as elsewhere—derives from diesel exhaust, see

supra p. 10, petitioners seek section 209(a) immunity from any state regu-

lation “linked in some manner” (Pet. Br. 28) to motor vehicle emissions.

This effort to hobble local efforts at targeted remediation would ineffi-

ciently off-load onto stationary or other mobile sources the burden of

complying with federal air-quality requirements.

To SS oe ee

such motor vehicle.” 42 U.S.C. § 7543(a). If petitioners’ ca-

pacious definition of “standards” in the first sentence of sec-

tion 209(a) were correct, the second sentence would be sur-

plusage, because most or all of the prohibited state require-

ments would qualify as “standards,” already preempted by

the first sentence, by virtue of “referenc[ing]” the “charac-

teristics of a motor vehicle’s emissions.” Pet. Br. 26. “It isa

cardinal principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.” 7’RW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (internal quotation marks and citation omitted); ac-

cord Duncan v. Walker, 533 U.S. 167, 174 (2001). The

proper way to honor that principle here is to equate the

“standards” preempted by section 209(a) with the produc-

tion mandates compelled by section 202.

II. PETITIONERS’ CONSTRUCTION OF SECTION 209(a) Is

IRREMEDIABLY OVERINCLUSIVE.

Petitioners’ definition of “standard” should be rejected

not just because it sweeps much more broadly than the cog-

nate meaning of that term in section 202 and the most appli-

cable dictionary definition, departs from EPA’s own pro-

nouncements, and produces the interpretive anomalies dis-

cussed above, but also because—in practice—it would pre-

empt far too much.

As noted, petitioners construe “standard” (Br. 28) to in-

clude any state or local law that contains an “express refer-

ence to emission characteristics or design criteria” or that is

“linked in some other manner to control of motor vehicle

emissions.” But that definition encompasses a broad range

of state-level clean-air initiatives that, by general consensus,

Congress did not mean to preempt. The Justice Department

states (Br. 17 n.4), for example, that section 209(a)’s preemp-

tion of “standards” does “not generally reach state voluntary

or incentive programs that merely encourage vehicle manu-

facturers to sell, or consumers to buy, vehicles with particu-

lar emission characteristics.” Those incentive programs-—of

which there have been many throughout the nation'’’—

necessarily contain an “express reference to emissions char-

acteristics or design criteria” (Pet. Br. 28). For example, a

$500 rebate (or equivalent tax incentive) for the purchase of

a hybrid car necessarily conditions consumer benefits on the

purchase of vehicles with “particular emissions characteris-

tics.” And the creation of such benefits necessarily enhances

the market for such vehicles and “encourage[s] vehicle

manufacturers to sell” them (U.S. Br. 17 n.4). But, as the

1. Examples of current or recent incentive programs include: Ariz.

Rev. Stat. §§ 28-5801, 28-5805 (2003) (reduced license tax on alternative-

fuel vehicles); Cal. Health & Safety Code §§ 44260-44265 (2002) (grant for

purchase of zero-emission vehicles); id. §§ 44275-44299.1 (2003) (grant for

projects within the state involving purchase of low-emission vehicles); id.

§§ 44299.50-44299.55 (grant for projects within Sacramento involving pur-

chase of low-emission vehicles); id. §§ 44299.75-44299.79 (grant for pro-

jects within San Joaquin Valley involving purchase of low-emission vehi-

cles); id. §§ 44299.80-44299.85 (grant for projects in marine terminal areas

of San Francisco and Los Angeles involving purchase of low-emission ve-

hicles); Colo. Rev. Stat. § 39-26-114(22) (2003) (no state sales tax on low-

emission vehicles); Conn. Gen. Stat. § 12-412(67)-12-412(68) (2003) (no

state sales tax on alternative-fuel vehicles and conversion equipment); Ga.

Code Ann. § 48-7-40.16 (2003) (tax credit of up to $5,000 for purchase of

low-emission or zero-emission vehicles); 415 Ill. Comp. Stat. 120/30 (2003)

(rebate of up to $4,000 for purchase of alternative-fuel vehicles); Kan. Stat.

Ann. § 79-32,201 (2002) (tax credit for purchase of alternative-fuel vehi-

cles); Md. Code Ann., Transp., § 13-815 (2003) (tax credit of up to $2,000

for purchase of low-emission vehicles); Me. Rev. Stat. Ann. tit. 36,

§ 1760(79) (2003) (tax exemption of portion of cost for clean-fuel vehicles);

N.Y. Tax Law § 606(p) (2003) (tax credit of up to $10,000 for purchase of

electric or clean-fuel vehicles); Or. Rev. Stat. § 316.116 (2001) (tax credit of

up to $1,500 for purchase of alternative-fuel vehicles); R.I. Gen. Laws § 44-

18-30(53) (2002) (reduced state sales tax for purchase of alternative-fuel

vehicles); Utah Code Ann. § 59-10-127 (2003) (tax credit of up to $3,000 for

purchase of alternative-fuel vehicles); Va. Code Ann. § 58.1-438.1 (2003)

(tax credit for purchase of clean-fuel vehicles); W. Va. Code § 11-6D-5

(2003) (tax credit up to $50,000 for purchase of alternative-fuel vehicles).

In addition, the Internal Revenue Code contains a range of substantial

federal tax incentives for the purchase of clean vehicles. See 26 U.S.C.

§ 30 (tax credit of up to $4,000 for purchase of electric vehicles); id. § 179A

(tax deduction of up to $50,000 for purchase of clean-fuel vehicles).

———

Justice Department acknowledges (id.), no one could seri-

ously maintain that section 209(a) preempts such measures.

Indeed, to reduce dependence on foreign oil, the Energy Pol-

icy Act of 1992 expressly authorizes the Department of En-

ergy to make states eligible for “grants of Federal financial

assistance” if they enlarge the market for alternative-fuel

vehicles by (among other things) creating “exemption(s]

from State sales tax or other State or local taxes or sur-

charges ... with respect to alternative fueled vehicles, alter-

native fuels, or alternative fueling facilities[.]” 42 U.S.C.

§ 13235(a)(3)(A), (b)(1)(B) & (C). That provision would make

no sense if Congress had preempted such incentive pro-

grams under section 209(a).'

The basic problem for petitioners is that their definition

of “standard”—under which anything is preempted if it re-

fers to or “is linked in some other manner to control of motor

vehicle emissions” (Pet. Br. 28)—would swallow up these

incentive programs along with the fleet purchasing require-

_—

' The Justice Department obliquely suggests in a footnote (Br. 18

n.5) that sections 182(g)(4) and 249(f)(3) of the Clean Air Act, by address-

ing particular types of state incentive programs, indicate by negative im-

plication that certain other types of incentive programs are impermissible.

See 42 U.S.C. §§ 7511a(g)(4), 7589(f)(3). Any such argument—which, tell-

ingly, petitioners have never made—is untenable. These two provisions

specify ways in which states with non-attainment areas may discharge

their federal obligations to provide an effec ‘ve “state implementation

plan.” See supra pp. 4-5. That is why, for example, section 249(f)(3)(A)

lists, as one such option, a state’s imposition of a “registration fee” for non-

clean-fuel vehicles “in the amount of at /east 1 percent of the cost the vehi-

cle.” 42 U.S.C. § 7589(f)(3)(A) (emphasis added). It would be absurd to

cite that provision as a basis for construing the Act to permit substantial

penalties of this type for the purchase of non-clean-fuel vehicles but to

preempt all tax exemptions and other benefits for the purchase of clean-

fuel vehicles. And, as noted, it would be inconsistent with the Energy

Policy Act, which assumes that states have broad authority to adopt the

latter approach. Finally, section 249(f)(4) of the Act is also inapposite,

because it does not apply within California and merely precludes non-

California states that avail themselves of the section 249(f)(3) compliance

option from imposing “any production or sales mandate.” 42 U.S.C.

§ 7589(f)(4). As discussed, the Fleet Rules impose no such “mandate.”

ments at issue here. This problem arises not from any slip of

the pen in petitioners’ opening brief, but from an unavoid-

able flaw at the heart of any argument for construing section

209(a) to preempt these Fleet Rules or any other state or

local environmental program that might somehow affect the

motor vehicle industry without imposing a production man-

date. Petitioners must resort to their plainly overbroad

definition of “standard,” under which ordinary state incen-

tive programs would be abruptly invalidated, because there

is no valid limiting principle, faithful to the text or purposes

of the Clean Air Act, that could include the Fleet Rules

within the scope of preempted “standards” but nonetheless

ecclude the incentive programs—whose very purpose is to

“encourage vehicle manufacturers to sell, or consumers to

buy, vehicles with particular emission characteristics.” U.S.

Br. 17 n.4.

Although petitioners ignore this problem altogether,

preferring to leave it for their reply brief, the Justice De-

partment grasps for a solution in a footnote (Br. 17 n.4) and,

in the process, reveals why no solution is available. The De-

partment first suggests that the reason incentive programs

do not fall within the scope of section 209(a) is that “they do

not impose ‘enforce[able]’ requirements.” Jd. (quoting sec-

tion 209(a)) (alteration in original). While difficult to discern,

the Department’s argument is apparently that, even if in-

centive programs qualified as “standards,” states would not

violate section 209(a) by adopting them, because those states

would not be “enforc[ing]” these “standards” against anyone.

But this line of analysis makes no sense. For one thing, sec-

tion 209(a) forbids states either to “attempt to enforce” or to

“adopt” any preempted “standard.” If an incentive program

otherwise qualified as a “standard relating to the control of

emissions,” section 209(a) would preempt any state or local

decision to “adopt” such a program. For another thing, the

text of section 209 as a whole precludes drawing the line un-

der section 209(a) between emissions-related regulations

that impose “requirements” and those that do not. As dis-

cussed above, section 209(a) preempts “any standard relat-

ing to the control of emissions” of on-road vehicles, whereas

the parallel provision of section 209(e) preempts “any stan-

dard or requirement relating to the control of emissions” of

“nonroad” vehicles. The striking difference in language be-

tween these two companion provisions confirms that section

209(a) does not preempt at least some requirements “relat-

ing to the control of emissions.” See supra Point I.1.

Quite apart from that textual consideration, there is also

no logical basis consistent with the purposes of section 209(a)

for distinguishing between “enforceable” and “non-

enforceable” clean air policies so long as such policies do not

impose production obligations on manufacturers. Although

the Fleet Rules are compulsory as to buyers while incentive

programs are not, the relevant perspective is that of the

manufacturers. Section 209(a) was designed, after all, to

protect manufacturers from any compulsory obligation to

produce additional vehicle types beyond those mandated by

the federal government and California,’ not to guarantee

* See S. Rep. No. 90-403, at 33 (section 209(a) responds to auto-

makers’ desire for “a single national standard in order to eliminate undue

economic strain on the industry”); H.R. Rep. No. 95-294, at 309-311 (sec-

tion 209(a) designed so that “vehicle manufacturers [would] not be subject

to 50 different sets of requirements relating to emission controls”); cf.

1990 Legislative History, at 1022 (“{A] manufacturer could claim ‘undue

burden’ if a state that adopted the California standard applied enforce-

ment procedures that would require material[] changes in the manufac-

ture of such vehicles, i.e., production of a third car.”); id. at 950-951 (ad-

dressing “legitimate concern” of automakers “that different programs in

different States could result in a requirement for a third or fourth or fifth

car; that is, one that is different from either a California or a Federal vehi-

cle”).

By “prevent[ing] a chaotic situation from developing in interstate

commerce in new motor vehicles,” section 209(a) necessarily benefits both

manufacturers and users. H.R. Rep. No. 90-728, at 21 (1967). But Con-

gress’s chosen method for avoiding that “chaotic situation” was to pre-

empt divergent state production mandates. Thus, contrary to the sugges-

tion of amici American Automotive Leasing Association et al. (Br. 22-23),

the snippets of legislative history expressing concern for “the user” (S.

Rep. No. 89-192, at 8 (1965)) refer only to the consumer benefits of limiting

the sources of those mandates. Those snippets cannot plausibly be read to

support any broader-preemptive effect; indeed, section 209(d) permits the

states to impose a wide range of divergent “use” restrictions that directly

consumers the right to buy the diesel fuel vehicles of their

choice no matter where they live and no matter how severe

the air pollution there. And the Fieet Rules do not compel

any manufacturer to produce any particular vehicle. Indeed,

for that matter, they even exempt fleet owners from any ob-

ligation to purchase clean fuel vehicles when such vehicles

are commercially unavailable. E.g., JA 30."°

At most, the Fleet Rules, like incentive programs, re-

quire motor vehicle manufacturers to contemplate a volun-

tary increase in the production of certain vehicles—

specifically, the cleanest subset of vehicles within the cate-

gory of fleet vehicles whose production CARB has required

(with EPA’s approval). For example, if no clean vehicle is

currently manufactured for a particular category of fleet ve-

hicles, one manufacturer might seek to gain a business ad-

vantage by producing the first such vehicles, because the

purchasing requirements will have created a market for

them. But any such incentive-based “race to the top” is

hardly the type of burden that Congress sought to stave off

in Section 209(a). Indeed, from a manufacturer’s perspec-

tive, there is no reason in principle why a locality’s fleet pur-

chase requirements would be any more likely to spark such a

race to the top, or otherwise affect manufacturing decisions,

than an appropriately robust incentive program. And, as

noted, no one could seriously contend that section 209(a)

preempts such a program.

affect users. See 42 U.S.C. § 7543(d) (“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.”).

'’ The Fleet Rules are thus markedly different from the production

mandates determined to be “standards” in Association of International

Automobile Manufacturers, supra, and Cahill, supra. Under the pro-

grams at issue in those cases, manufacturers were (i) required to design

and produce ZEVs not otherwise mandated by EPA or CARB and (ii)

required to sell ZEVs equal to two percent of their overall sales in New

York and Massachusetts. See Association of Int'l Auto. Mfrs., 208 F.3d at

3; Cahill, 152 F.3d at 199.

To paper over that problem, the Justice Department

advocates (in a sentence in a footnote) a contrived and pat-

ently unworkable limitation on state incentive programs un-

der section 209(a). On the one hand, the Department con-

cedes that most “state voluntary or incentive programs”

would be permissible because they “merely encourage vehi-

cle manufacturers to sell, or consumers to buy, vehicles with

particular emission characteristics.” U.S. Br. 17 n.4 (empha-

sis added). On the other hand, plucking terms from Sherman

Act jurisprudence, the Department adds that “an incentive

program or related state initiative may well be preempted if

it frustrates Section 209(a)’s purpose by acting as a substan-

tial barrier to the entry of new motor vehicles into the mar-

ketplace.” /d. 18 n.5 (emphasis added).

This proposed line between permissible “encourage-

ment” and impermissible “barriers to entry” is untenable for

several reasons. To begin with, the Justice Department al-

together fails to (i) define “barrier to entry,” (ii) explain why

it would be appropriate to import that antitrust concept into

a preemption analysis arising under the environmental laws,

(iii) explain how incentive programs that erect such “barri-

ers” should be distinguished from those that “merely en-

courage” the production and purchase of clean vehicles, or

(iv) root any such distinction in the text of section 209(a).

The Justice Department omits any discussion of these issues

for good reason, because there is no sound legal doctrine

that could be developed here. Even if the Department’s

proposed “line” were sensible as a matter of policy, which is

doubtful, there would be no apparent reason why courts,

rather than the political branches, should be the ones to

draw it. Does a $2000 tax break for a particular vehicle

erect a “barrier to the entry” of other “vehicles into the

marketplace?” Presumably not'°—but where, under the

'© Congress itself has included tax incentives of similar or greater

magnitude throughout the Internal Revenue Code, with no apparent in-

tent to impose “barriers to entry” of any kind. See 26 U.S.C. § 30 (tax

credit of up to $4,000 for purchase of electric vehicles); id. § 179A (tax de-

Justice Department’s approach, should that line be drawn?

At what point does the effect on those unnamed “other” ve-

hicles cross that line, and how should that effect be meas-

ured in the first place? Finally, and most important for pre-

sent purposes, what basis would any court have to conclude

that the fleet purchasing requirements at issue here fall into

the “barrier to entry” category rather than the category for

(permissible) state programs that “merely encourage vehicle

manufacturers to sell ... vehicles with particular emission

characteristics” (U.S. Br. 17 n.4)?

These are the sorts of fact-specific, policy-laden, legis/a-

tive questions that Congress or EPA might be expected to

address if they someday perceive a need to do so. These are

not the sorts of questions that courts are institutionally

equipped to address. The only line this Court need draw is

the traditional one limiting the scope of section 209(a) to

production mandates. The Fleet Rules impose no such man-

date, nor do they impose any obligation upon manufacturers.

They merely require fleet operators to choose the cleaner of

those vehicles already available and certified for sale.

III. CONFINING SECTION 209(a) TO PRODUCTION MAN-

DATES ESTABLISHES A SENSIBLE AND EASILY ADMIN-

ISTERED RULE OF DECISION THAT SHOULD BE REvis-

ITED, IF AT ALL, ONLY BY THE POLITICAL BRANCHES.

In contrast to the overbreadth of petitioners’ position

and the indeterminacy of the Justice Department’s alterna-

tive, restricting the preemptive scope of section 209(a) to

production mandates provides a clear, manageable distinc-

tion between permissible and impermissible local environ-

mental initiatives. It preserves the states’ traditional flexi-

bility to respond to particular local air-quality problems

while protecting manufacturers from any compulsion to pro-

duction of up to $50,000 for purchase of clean-fuel vehicles); id. § 29 (tax

credit for production of nonconventional fuel); id. § 40 (tax credit for pro-

duction or use of aleohol-based fuel).

duce new motor vehicles based upon more than two numeri-

cal emission levels.

Petitioners, however, deride as “nonsensical” (Br. 25)

any distinction between production mandates and purchase

restrictions. “Every new vehicle transaction,” they assert,

“involves the purchase of the vehicle by the purchaser and

the sale of the vehicle by the seller.” Jd. at 25-26. That is

true but quite beside the point. Requiring a fleet owner to

buy a particular vehicle imposes no legal obligation on any

manufacturer to alter its plans to sell that vehicle, whereas a

production mandate imposes precisely such an obligation.

Although petitioners may dislike that pragmatic distinction,

there is nothing “nonsensical” about it.

Indeed, it is exactly the same distinction that Congress

and the EPA have drawn in connection with the federal gov-

ernment’s own purchasing requirements under the “clean

fuel fleet program”—a point the Justice Department alto-

gether fails to mention. Section 246 of the Clean Air Act re-

quires states with ozone or carbon monoxide “nonattain-

ment” areas either (i) to adopt a set of fleet purchasing re-

quirements prescribed by the federal government, 42 U.S.C.

§ 7586, or (ii) to create an alternative program that achieves

the same ozone and carbon monoxide reductions, see 42

U.S.C. § 751la(e)(4)(B). Any state that chooses the first op-

tion must require fleet owners to purchase a specified per-

centage of clean-fuel vehicles and to use clean alternative

fuels in those vehicles. See 42 U.S.C. § 7586(b). Although

the federal fleet program differs in certain respects from the

Fleet Rules at issue here, the underlying structure is the

same. Both require certain fleet operators to purchase

clean-fuel or low-emission vehicles: the Fleet Rules refer-

ence certain CARB standards, whereas the federal fleet

program references standards set forth in section 243, 42

U.S.C. § 7583. But neither fleet purchasing program itself

regulates or imposes any production mandate on motor vehi-

cle manufacturers. See 58 Fed. Reg. 11888, 11898 (Mar. 1,

1993) (federal fleet rules are “largely voluntary” to the “auto

industry” because “(mJanufacturers will seek [program]

qualification only if demand for such vehicles is sufficient”).

This distinction between purchasing requirements and

production mandates—the same distinction petitioners call

“nonsensical”—is the explicit premise of section 246 and its

accompanying regulatory scheme. As EPA explains, “in

adopting the [federal fleets program], Congress made a clear

choice between two alternatives: requiring auto manufac-

turers to produce and sell (clean-fuel vehicles], or creating a

market for [clean-fuel vehicles] ... by requiring fleet opera-

tors to purchase such vehicles|.]” 63 Fed. Reg. at 20105

(emphasis added) (App. 49a). Congress, EPA observed, de-

liberately chose the latter option instead of the former.

Senator Carl-Levin of Michigan, who ably represents De-

troit automakers among his other constituents, likewise in-

voked the logical and practical significance of this distinction

by assuring the public that the federal fleet program is

“carefully designed to avoid the mandated production and

sales that we all agreed to avoid.” 1990 Legislative History,

at 7209. Instead, he explained, “(tJhe fleets program ... re-

quires the purchase of low-emission vehicles by ... opera-

tors of private, centrally fueled and centrally maintained

fleets.” Jd. Senator Levin acknowledged that these compul-

sory purchases “will create a substantial demand for such

cars, giving motor vehicle manufacturers a real incentive to

bring them into production.” Id. (emphasis added). “How-

ever,” he emphasized, “the provision does not contain any

production or sales mandate, direct or indirect,” id.—and is

thus appropriate as a matter of federal policy.

In short, Congress and EPA have both embraced the

very distinction that petitioners criticize as unworkable and

implausible. Petitioners suggest (Br. 26) that, in an extreme

and highly unlikely scenario, the widespread adoption of

identical purchasing rules by states or localities could

amount in practical effect to a production mandate for par-

ticular manufacturers. But that logic did not impress Con-

gress, which created federal fleet purchasing requirements

with potentially very broad application—but which nonethe-

less concluded that, despite their scope, such requirements

are importantly different from production mandates of the

sort imposed by section 202 and preempted by section

209(a). The same holds particularly true in the case of the

District’s Fleet Rules, which by their terms do not apply if

the designated vehicle is not commercially available. E.g.,

JA 30. And, of course, the political branches remain free to

draw whatever other line they deem appropriate as circum-

stances warrant.

IV. CONFINING SECTION 209(a) TO PRODUCTION. MAN-

DATES IS CONSISTENT WITH OTHER PROVISIONS OF

THE CLEAN AIR ACT.

Petitioners argue that limiting the preemptive scope of

section 209(a) would be inconsistent with a variety of other

provisions in the Clean Air Act. In each case, petitioners are

wrong.

First, seeking to turn section 246 to their own advan-

tage, petitioners suggest, without saying so explicitly, that

Congress’s establishment of a federal fleet program some-

how occupies the field of fleet vehicle regulations. See Pet.

Br. 32. As an initial matter, petitioners have waived any re-

liance on section 246 as a basis for preemption, because they

raised no such argument either below (Pet. App. 2a n.1) or in

their petition for certiorari (Pet. i). See Glover v. United

States, 531 U.S. 198, 205 (2001) (“In the ordinary course, we

do not decide questions neither raised nor resolved below.”);

S. Ct. R. 14.1(a) (“Only the questions set out in the petition,

or fairly included therein, will be considered by the Court.”).

And the argument is without merit in any event. Section

246 does not purport to authorize the states to enact other-

wise-preempted fleet purchasing rules. Instead, as noted, it

requires certain “nonattainment” states to add such rules to

their “state implementation plans” unless they-obtain EPA

approval to pursue an alternative approach as set forth in

section 182, 42 U.S.C. § 7511a(c)(4)(B).

If anything, section 246 presumes that the states retain

full authority to implement fleet purchasing requirements on

their own initiative: section 246 does not use the term

“standard” in describing fleet purchasing requirements, and

it does not exempt such requirements from section 209(a)

through a “notwithstanding” clause, as one might have ex-

pected if they were otherwise preempted. Just as impor-

tant, section 246 is conspicuously omitted from the statutory

list of provisions deemed by section 116 of the Act to assert

exclusive federal authority over a particular subject area.

See 42 U.S.C. § 7416 (affirming retained state authority ex-

cept as provided in enumerated federal provisions); see gen-

erally Motor & Equip. Mfrs. Ass’n, 627 F.2d at 1107 n.20

(noting automobile industry’s “difficult burden” of showing

preemption under section 207 of the Clean Air Act where it

is “not among” section 116’s list of provisions that “Congress

intended to reserve for exclusive federal regulation”). For

that reason alone, section 116 squarely precludes any pre-

emptive interpretation of section 246.

Petitioners’ focus on the substantive distinctions be-

tween the federal fleet program and the Fleet Rules (see Br.

43-44) is beside the point, because section 246 does not pre-

scribe particular federal requirements with which states

must comply. Covered states are instead given the flexibil-

ity to forgo the federal fleet program in whole or in part and

to adopt an alternative program of their own, so long as they

persuade EPA that doing so “will achieve [equivalent] long-

term reductions” in air pollution. CAA § 182, 42 U.S.C.

§ 751la(c)(4)(B).'’ The considerable discretion left to the

"In adopting regulations under section 246, EPA expected there to

“be some overlap” between the “clean fuel fleet program” and the “num-

ber of other programs being implemented or considered at national, state,

or local levels, which involve the introduction of clean fuel vehicles in

fleets.” 56 Fed. Reg. 50196, 50199 (Oct. 3, 1991); cf. H.R. Rep. No. 101-490,

at 177 (1990) (noting that, along with section 246, “California would be

proceeding along its own path, perceived at this time as mandating similar

fleet requirements plus diffusion of alternative-fueled passenger cars into

the general auto market”). EPA “define(d| certain terms and resolve|d]

certain issues by regulation” in order to “reduce ambiguity and increase

the effectiveness of the Clean Fuel Fleet Program,” but reiterated its

~ 41

states belies any claim that the Clean Air Act reflects Con-

gress’s view of the only “right” way to design fleet purchas-

ing requirements. And other federal statutes confirm the

same conclusion: for example, the Energy Policy Act of 1992

gives the Department of Energy, rather than EPA, broad

discretion to impose fleet purchasing requirements of its

own design on a nationwide basis to reduce dependence on

foreign oil. See 42 U.S.C. § 13257."* In sum, even if petition-

ers had preserved the issue, they would not come close to

satisfying the strict standard for implied conflict or field

preemption under section 246, particularly given the express

reservation of state authority under section 116. See, e.g.,

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)

(courts must “start with the assumption that the historic po-

lice powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifiest purpose

of Congress”); Medtronic, 518 U.S. at 485; see generally

English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) (dis-

cussing conflict and field preemption).

Petitioners next rely on section 177, which was enacted

after section 209(a) and which permits other states to adopt

California’s “standards”—i.e., its EPA-approved production

mandates—as their own. See 42 U.S.C. § 7507. Under sec-

tion 177, opt-in states must ensure that their “standards” are

“identical” to those of California. See 42 U.S.C. § 7507(1).

This “identicality” requirement was intended to prevent

those states from compelling manufacturers to produce a

“third vehicle” in addition to those required by the national

and California standards. See Cahill, 152 F.3d at 201 (sec-

tion 177’s “identicality” requirement avoids the burden on

manufacturers of having to “comply with more than two—

“general view” that “program implementation be left to the states.” 58

Fed. Reg. 32474, 32476 (June 10, 1993).

'* There are significant differences between the fleet programs es-

tablished in the Energy Policy Act and the Clean Air Act. One notable

example is that the former does not include any form of diesel in its defini-

tion of “alternate fuel.” Compare 42 U.S.C. § 13211(2), with CAA § 241, 42

U.S.C. § 7581(2).

perhaps several—sets of emissions regulations”); H.R. Rep.

No. 95-294, at 309-311 (1977) (section 177 “should not place

an undue burden on vehicle manufacturers who will be re-

quired, in any event, to produce vehicles meeting the Cali-

fornia standards for sale in California”); 1990 Legislative

History, at 1787 (“States exercising this section 177 option

may not, in such adoption and enforcement, create a ‘third

vehicle’ that is not a California vehicle or a 49-state Federal

vehicle, because of the burden it would place on the motor

vehicle manufacturers.”). To that end, section 177 also pro-

vides that nothing in Title II of the Clean Air Act authorizes

opt-in states to “prohibit or limit, directly or indirectly, the

manufacture or sale of a new motor vehicle.” 42 U.S.C.

§ 7507.

Petitioners rely on this provision (Br. 30-31) as indirect

evidence of preemption under section 209(a), but that reli-

ance is misplaced. As an initial matter, the District is not an

“opt in” state (or a political subdivision thereof), and section

177 thus does not apply to it. And, despite petitioners’ con-

trary suggestion (id.), the relevant case law strongly indi-

cates that the Fleet Rules would not violate section 177 even

if some state or locality outside of California had adopted

them. See Motor Vehicle Mfrs. Ass’n of United States, Inc.

v. New York State Dep’t of Envtl. Conservation, 17 F.3d 521,

536 (2d Cir. 1994) (rejecting section 177 preemption chal-

lenge to New York’s much more intrusive ZEV sales quota

program on the ground that, although “the ZEV quota may

affect the sale of non-ZEV California-certified cars” because

“the market for cars is not unlimited,” “ ‘affect’ is not the key

word of § 177, the catchword is ‘limit.’ ”); ef. 1990 Legislative

History, at 7209 (statement of Sen. Levin) (federal fleet pro-

gram “does not contain any production or sales mandate, di-

rect or indirect,” even though it undoubtedly “will create a

substantial demand for such cars, giving motor vehicle

manufacturers a real incentive to bring them into produc-

tion”). Finally, even if section 177 would preempt such rules

if adopted by a state other than California, there is nothing

remotely anomalous as a policy matter about exempting

California and its political subdivisions from the preemptive

a eS eo

force of that provision, given California’s long-established

claim as a state with unique air pollution problems and its

status as the pioneer of air quality initiatives.

Finally, petitioners invoke section 209(d), which de-

clares that, apart from the regulations expressly preempted,

nothing in Part A of Title II precludes states and localities

from exercising “the right otherwise to control, regulate, or

restrict the use, operation or movement of registered or li-

censed motor vehicles.” 42 U.S.C. § 7543(d). Petitioners’ |

reliance on this provision is also misplaced. To begin with,

these Fleet Rules are, in fact, a “restrict{ion]” on “the use”

of particular vehicles—specifically, on their use within fleets

defined by a certain threshold number of vehicles. Nothing

in the Rules prevents any vehicle from being registered in

California. Thus, although the issue was not litigated below,

section 209(d) affirmatively preserves these requirements

from preemption, for nothing in the Clean Air Act

“‘preclude[s] a locality from setting its own standards for

the licensing of vehicles for commercial use within that local-

ity. Such regulations would cause only minimal interference

with interstate commerce, since they would be directed pri-

marily to intrastate activities and the burden of compliance

would be on individual owners and not on manufacturers or

distributors.’” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,

1083 (D.C. Cir. 1996) (quoting Allway Taxi, 340 F. Supp. at

1124) (dicta).

But even if section 209(d) did not itself preserve the

Fleet Rules from preemption, that could only be because it is

irrelevant to the section 209(a) inquiry altogether. Although

petitioners would read section 209(d) as an exhaustive com-

pendium of the states’ preserved powers (Pet. Br. 29), it is

nothing of the sort. Section 209(d) is not an exception to sec-

tion 209(a) itself; it is a general savings clause for Part A of

Title II as a whole, and it relates only to the specific subject

matter of “use” restrictions. It has no bearing on other sub-

jects of regulation under the Clean Air Act, and it cannot

justify an expansive construction of express preemption

clauses that address different issues, such as motor vehicle

“standards.” Cf. Motor & Equip. Mfrs. Ass’n, 627 F.2d at

1107 n.19 (“Subsection (d) makes clear that the preemption

provision is not intended to preempt state regulation other

than as expressed in subsection (a).”).

CONCLUSION

The judgment of the courts below should be affirmed.

FRAN M. LAYTON

JANETTE E. SCHUE

SHUTE, MIHALY &

WEINBERGER, LLP

396 Hayes Street

San Francisco, CA 94102

(415) 552-7272

BARBARA BAIRD

KURT R. WIESE

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT

21865 EAST COPLEY DRIVE

DIAMOND BAR, CA 91765

(909) 396-2302

NOVEMBER 2003

Respectfully submitted.

SETH P. WAXMAN

Counsel of Record

C. BOYDEN GRAY

JONATHAN E. NUECHTERLEIN

LUKE A. SOBOTA

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

DANIEL P. SELMI

919 South Albany Street

Los Angeles, CA 90015

(213) 736-1098

APPENDIX

STATUTORY PROVISIONS

[CAA § 101] 42 U.S.C. § 7401. Congressional findings

and declaration of purpose

(a) Findings

The Congress finds—

(1) that the predominant part of the Nation’s

population is located in its rapidly expanding metropolitan

and other urban areas, which generally cross the boundary

lines of local jurisdictions and often extend into two or more

States;

(2) that the growth in the amount and complexity

of air pollution brought about by urbanization, industrial

development, and the increasing use of motor vehicles, has

resulted in mounting dangers to the public health and

welfare, including injury to agricultural crops and livestock,

damage to and the deterioration of property, and hazards to

air and ground transportation;

(3) that air pollution prevention (that is, the

reduction or elimination, through any measures, of the

amount of pollutants produced or created at the source) and

air pollution control at its source is the primary

responsibility of States and local governments; and

(4) that Federal financial assistance and leadership

is essential for the development of cooperative Federal,

State, regional, and local programs to prevent and control

air pollution.

(b) Declaration

The purposes of this subchapter are—

(1) to protect and enhance the quality of the

Nation’s air resources so as to promote the public health and

welfare and the productive capacity of its population;

(2) to initiate and accelerate a national research

and development program to achieve the prevention and

control of air pollution;

(3) to provide technical and financial assistance to

State and local governments in connection with the

development and execution of their air pollution prevention

and control programs; and

(4) to encourage and assist the development and

operation of regional air pollution prevention and control

programs.

A primary goal of this chapter is to encourage or

otherwise premote reasonable Federal, State, and local

governmental actions, consistent with the provisions of this

chapter, for pollution prevention.

[CAA § 116] 42 U.S.C § 7416. Retention of State

authority

Except as otherwise provided in sections 1857c-10(c),

(e), and (f) (as in effect before August 7, 1977), 7543,

7545(c)(4), and 7573 of this title (preempting certain State

regulation of moving sources) nothing in this chapter shall

preclude or deny the right of any State or political

subdivision thereof to adopt or enforce (1) any standard or

limitation respecting emissions of air pollutants or (2) any

- requirement respecting control or abatement of air pollution;

except that if an emission standard or limitation is in effect

under an applicable implementation plan or under section

7411 or section 7412 of this title, such State or political

subdivision may not adopt or enforce any emission standard

or limitation which is less stringent than the standard or

limitation under such plan or section.

[CAA § 177] 42 U.S.C. § 7507. New motor vehicle

emission standards in nonattainment areas

Notwithstanding section 7543(a) of this title, any State

which has plan provisions approved under this part may

adopt and enforce for any model year standards relating to

control of emissions from new motor vehicles or new motor

vehicle engines and take such other actions as are referred

to in section 7543(a) of this title respecting such vehicles if—

(1) such standards are identical to the California

standards for which a waiver has been granted for such

model year, and

(2) California and such State adopt such standards

at least two years before commencement of such model year

(as determined by regulations of the Administrator).

Nothing in this section or in subchapter II of this chapter

shall be construed as authorizing any such State to prohibit

or limit, directly or indirectly, the manufacture or sale of a

new motor vehicle or motor vehicle engine that is certified in

California as meeting California standards, or to take any

action of any kind to create, or have the effect of creating, a

motor vehicle or motor vehicle engine different than a motor

vehicle or engine certified in California under California

standards (a “third vehicle”) or otherwise create such a

“third vehicle”.

[CAA § 202] 42 U.S.C. § 7521. Emission standards for

new motor vehicles or new motor vehicle engines

(a) Authority of Administrator to prescribe by

regulation

Except as otherwise provided in subsection (b) of this

section—

(1) The Administrator shall by regulation prescribe

(and from time to time revise) in accordance with the

provisions of this section, standards applicable to the

emission of any air pollutant from any class or classes of new

motor vehicles or new motor vehicle engines, which in his

judgment cause, or contribute to, air pollution which may

reasonably be anticipated to endanger public health or

welfare. Such standards shall be applicable to such vehicles

and engines for their useful life (as determined under

subsection (d) of this section, relating to useful life of

vehicles for purposes of certification), whether such vehicles

and engines are designed as complete systems or

incorporate devices to prevent or control such pollution.

(2) Any regulation prescribed under paragraph (1)

of this subsection (and any revision thereof) shall take effect

after such period as the Administrator finds necessary to

permit the development and application of the requisite

technology, giving appropriate consideration to the cost of

compliance within such period.

(3)(A) In general

(i) Unless the standard is changed as provided in

subparagraph (B), regulations under paragraph (1) of this

subsection applicable to emissions of hydrocarbons, carbon

monoxide, oxides of nitrogen, and particulate matter from

classes or categories of heavy-duty vehicles or engines

manufactured during or after model year 1983 shall contain

standards which reflect the greatest degree of emission

reduction achievable through the application of technology

which the Administrator determines will be available for the

model year to which such standards apply, giving

appropriate consideration to cost, energy, and safety factors

associated with the application of such technology.

(ii) In establishing classes or categories of vehicles

or engines for purposes of regulations under this paragraph,

the Administrator may base such classes or categories on

gross vehicle weight, horsepower, type of fuel used, or other

appropriate factors.

(B) Revised standards for heavy duty trucks

(i) On the basis of information available to the

Administrator concerning the effects of air pollutants

emitted from heavy-duty vehicles or engines and from other

sources of mobile source related pollutants on the public

health and welfare, and taking costs into account, the

Administrator may promulgate regulations under paragraph

(1) of this subsection revising any standard promulgated

under, or before the date of, the enactment of the Clean Air

Act Amendments of 1990 (or previously revised under this

subparagraph) and applicable to classes or categories of

heavy-duty vehicles or engines.

(ii) Effective for the model year 1998 and

thereafter, the regulations under paragraph (1) of this

subsection applicable to emissions of oxides of nitrogen

(NOx) from gasoline and diesel-fueled heavy duty trucks

shall contain standards which provide that such emissions

may not exceed 4.0 grams per brake horsepower hour (gbh).

Any standard promulgated or revised under this

paragraph and applicable to classes or categories of heavy-

duty vehicles or engines shall apply for a period of no less

than 3 model years beginning no earlier than the model year

commencing 4 years after such revised standard is

promulgated.

(D) Rebuilding practices

The Administrator shall study the practice of

rebuilding heavy-duty engines and the impact rebuilding has

on engine emissions. On the basis of that study and other

information available to the Administrator, the

Administrator may prescribe requirements to control

rebuilding practices, including standards applicable to

emissions from any rebuilt heavy-duty engines (whether or

not the engine is past its statutory useful life), which in the

Administrator’s judgment cause, or contribute to, air

pollution which may reasonably be anticipated to endanger

public health or welfare taking costs into account. Any

regulation shall take effect after a period the Administrator

finds necessary to permit the development and application of

the requisite control measures, giving appropriate

consideration to the cost of compliance within the period and

energy and safety factors.

(E) Motorcycles

For purposes of this paragraph, motorcycles and!

motorcycle engines shall be treated in the same manner as

heavy-duty vehicles and engines (except as otherwise

permitted under section 7525(f)(1) of this title) unless the

Administrator promulgates a rule reclassifying motorcycles

as light-duty vehicles within the meaning of this section or

unless the Administrator promulgates regulations under

subsection (a) of this section applying standards applicable

to the emission of air pollutants from motorcycles as a

separate class or category. In any case in which such

standards are promulgated for such emissions from

motorcycles as a separate class or category, the

Administrator, in promulgating such standards, shall

consider the need to achieve equivalency of emission

reductions between motorcycles and other motor vehicles to

the maximum extent practicable.

(4)(A) Effective with respect to vehicles and

engines manufactured after model year 1978, no emission

control device, system, or element of design shall be used in

a new motor vehicle or new motor vehicle engine for

purposes of complying with requirements prescribed under

this subchapter if such device, system, or element of design

will cause or contribute to an unreasonable risk to public

health, welfare, or safety in its operation or function.

(B) In determining whether an unreasonable risk

exists under subparagraph (A), the Administrator shall

consider, among other factors, (i) whether and to what

extent the use of any device, system, or element of design

causes, increases, reduces, or eliminates emissions of any

unregulated pollutants; (ii) available methods for reducing or

eliminating any risk to public health, welfare, or safety

which may be associated with the use of such device, system,

or element of design, and (iii) the availability of other

devices, systems, or elements of design which may be used

to conform to requirements prescribed under this

subchapter witheut causing or contributing to such

unreasonable risk. The Administrator shall include in the

consideration required by this paragraph all relevant

information developed pursuant to section 7548 of this title.

(5)(A) If the Administrator promulgates final

regulations which define the degree of control required and

the test procedures by which compliance could be

determined for gasoline vapor recovery of uncontrolled ~

emissions from the fueling of motor vehicles, the

Administrator shall, after consultation with the Secretary of

Transportation with respect to motor vehicle safety,

prescribe, by regulation, fill pipe standards for new motor

vehicles in order to insure effective connection between such

fill pipe and any vapor recovery system which the

Administrator determines may be required to comply with

such vapor recovery regulations. In promulgating such

standards the Administrator shall take into consideration

limits on fill pipe diameter, minimum design criteria for

nozzle retainer lips, limits on the location of the unleaded

fuel restrictors, a minimum access zone surrounding a fill

pipe, a minimum pipe or nozzle insertion angle, and such

other factors as he deems pertinent.

(B) Regulations prescribing standards under

subparagraph (A) shall not become effective until the

introduction of the model year for which it would be feasible

to implement such standards, taking into consideration the

restraints of an adequate leadtime for design and

production.

the Administrator from specifying different nozzle and fill

neck sizes for gasoline with additives and gasoline without

additives or (ii) permit the Administrator to require a

specific location, configuration, modeling, or styling of the

motor vehicle body with respect to the fuel tank fill neck or

fill nozzle clearance envelope.

(D) For the purpose of this paragraph, the term

“fill pipe” shall include the fuel tank fill pipe, fill neck, fill

inlet, and closure.

(6) Onboard vapor recovery

Within 1 year after November 15, 1990, the

Administrator shall, after consultation with the Secretary of

Transportation regarding the safety of vehicle-based

(“onboard”) systems for the control of vehicle refueling

emissions, promulgate standards under this _ section

requiring that new light- duty vehicles manufactured

beginning in the fourth model year after the model year in

which the standards are promulgated and thereafter shall be

equipped with such systems. The standards required under

this paragraph shall apply to a percentage of each

manufacturer’s fleet of new light-duty vehicles beginning

with the fourth model year after the model year in which the

standards are promulgated. The percentage shall be as

specified in the following table:

IMPLEMENTATION SCHEDULE FOR ONBOARD

VAPOR RECOVERY REQUIREMENTS

Model year commencing after Percentage

standards promulgated *

Fourth 40

Fifth 80

After Fifth 100 -

*Percentages in the table refer to a percentage of the manufacturer's sales

The standards shall require that such systems provide a

minimum evaporative emission capture efficiency of 95

percent. The requirements of section 7511a(b)(3) of this title

(relating to stage II gasoline vapor recovery) for areas

classified under section 7511 of this title as moderate for

ozone shall not apply after promulgation of such standards

and the Administrator may, by rule, revise or waive the

application of the requirements of such section 751 1a(b)(3) of

10a

this title for areas classified under section 7511 of this title

as Serious, Severe, or Extreme for ozone, as appropriate,

after such time as the Administrator determines that

onboard emissions control systems require: under this

paragraph are in widespread use throughout the motor

vehicle fleet.

(b) Emissions of carbon monoxide, hydrocarbons, and

oxides of nitrogen; annual report to Congress; waiver

of emission standards; research objectives

(1)(A) The regulations under subsection (a) of this

section applicable to emissions of carbon monoxide and

hydrocarbons from light-duty vehicles and _ engines

manufactured during model years 1977 through 1979 shall

contain standards which provide that such emissions from

such vehicles and engines may not exceed 1.5 grams per

vehicle mile of hydrocarbons and 15.0 grams per vehicle mile

of carbon monoxide. The regulations under subsection (a) of

this section applicable to emissions of carbon monoxide from

light-duty vehicles and engines manufactured during the

model year 1980 shall contain standards which provide that

such emissions may not exceed 7.0 grams per vehicle mile.

The regulations under subsection (a) of this section

applicable to emissions of hydrocarbons from light-duty

vehicles and engines manufactured during or after model

year 1980 shall contain standards which require a reduction

of at least 90 percent from emissions of such pollutant

allowable under the standards under this section applicable

to light-duty vehicles and engines manufactured in model

year 1970. Unless waived as provided in paragraph (5),

regulations under subsection (a) of this section applicable to

emissions of carbon monoxide from light-duty vehicles and

engines manufactured during or after the model year 1981

shall contain standards which require a reduction of at least

90 percent from emissions of such pollutant allowable under

the standards under this section applicable to light-duty

vehicles and engines manufactured in model year 1970.

(B) The regulations under subsection (a) of this section

applicable to emissions of oxides of nitrogen from light-duty

vehicles and engines manufactured during model years 1977

lla

through 1980 shall contain standards which provide that

such emissions from such vehicles and engines may not

exceed 2.0 grams per vehicle mile. _The regulations under

subsection (a) of this section applicable to emissions of

oxides of nitrogen from light-duty vehicles and engines

manufactured during the model year 1981 and thereafter

shall contain standards which provide that such emissions

from such vehicles and engines may not exceed 1.0 gram per

vehicle mile. The Administrator shall prescribe standards in

lieu of those required by the preceding sentence, which

provide that emissions of oxides of nitrogen may not exceed

2.0 grams per vehicle mile for any light-duty vehicle

manufactured during model years 1981 and 1982 by any

manufacturer whose production, by corporate identity, for

calendar year 1976 was less than three hundred thousand

light-duty motor vehicles worldwide if the Administrator

determines that—

(i) the ability of such manufacturer to meet

emission standards in the 1975 and subsequent model years

was, and is, primarily dependent upon technology developed

by other manufacturers and purchased from such

manufacturers; and

(ii) such manufacturer lacks the financial resources

and technological ability to develop such technology.

under subsection (a)(1) of this section revising any standard

prescribed or previously revised under this subsection, as

needed to protect public health or welfare, taking costs,

energy, and safety into account. Any revised standard shall

require a reduction of emissions from the standard that was

previously applicable. Any such revision under this

subchapter may provide for a phase-in of the standard. It is

the intent of Congress that the numerical emission

standards specified in subsections (a)(3)(B)(ii), (g), (h), and (i)

of this section shall not be modified by the Administrator

after November 15, 1990, for any model year before the

model year 2004.

12a

(2) Emission standards under paragraph (1), and

measurement techniques on which such standards are based

(if not promulgated prior to November 15, 1990), shall be

promulgated by regulation within 180 days after November

15, 1990.

(3) For purposes of this part—

(A)(i) The term “model year” with reference to any

specific calendar year means the manufacturer’s annual

production period (as determined by the Administrator)

which includes January 1 of such calendar year. If the

manufacturer has no annual production period, the term

“model year” shall mean the calendar year.

(ii) For the"purpose of assuring that vehicles and

engines manufactured before the beginning of a model year

were not manufactured for purposes of circumventing the

effective date of a standard required to be prescribed by

subsection (b) of this section, the Administrator may

prescribe regulations defining “model year” otherwise than

as provided in clause (i).

(B) Repealed. Pub.L. 101-549, Title Il, § 230(1),

Nov. 15, 1990, 104 Stat. 2529.

bus, or other vehicle manufactured primarily for use on the

public streets, roads, and highways (not including any

vehicle operated exclusively on a rail or rails) which has a

gross vehicle weight (as determined under regulations

promulgated by the Administrator) in excess of six thousand

pounds. Such term includes any such vehicle which has

special features enabling off-street or off-highway operation

and use.

(3) [FN1] Upon the petition of any manufacturer, the

Administrator, after notice and opportunity for public

hearing, may waive the standard required under

subparagraph (B) of paragraph (1) to not exceed 1.5 grams of

oxides of nitrogen per vehicle mile for any class or category

of light-duty vehicles or engines manufactured by such

manufacturer during any period of up to four model years

beginning after the model year 1980 if the manufacturer

13a

demonstrates that such waiver is necessary to permit the

use of an innovative power train technology, or innovative

emission control device or system, in such class or category

of vehicles or engines and that such technology or system

was not utilized by more than 1 percent of the light-duty

vehicles sold in the United States in the 1975 model year.

Such waiver may be granted only if the Administrator

determines—

(A) that such waiver would not endanger public

health,

(B) that there is a substantial likelihood that the

vehicles or engines will be able to comply with the applicable

standard under this section at the expiration of the waiver,

and

for long-term air quality benefit and has the potential to

meet or exceed the average fuel economy standard

applicable under the Energy Policy and Conservation Act

[42 U.S.C.A. § 6201 et seq.] upon the expiration of the

waiver.

No waiver under this subparagraph [FN2] granted to any

manufacturer shall apply to more than 5 percent of such

manufacturer’s production or more than fifty thousand

vehicles or engines, whichever is greater.

Academy of Sciences; reports to Administrator and

Congress; availability of information

(1) The Administrator shall undertake to enter into

appropriate arrangements with the National Academy of

Sciences to conduct a comprehensive study and investigation

of the technological feasibility of meeting the emissions

standards required to be prescribed by the Administrator

by subsection (b) of this section.

(2) Of the funds authorized to be appropriated to the

Administrator by this chapter, such amounts as are required

shall be available to carry out the study and investigation

authorized by paragraph (1) of this subsection.

l4a

(3) In entering into any arrangement with the National

Academy of Sciences for conducting the study and

investigation authorized by paragraph (1) of this subsection,

the Administrator shall request the National Academy of

Sciences to submit semiannual reports on the progress of its

study and investigation to the Administrator and the

Congress, beginning not later than July 1, 1971, and

continuing until such study and investigation is completed.

(4) The Administrator shall furnish to such Academy at

its request any information which the Academy deems

necessary for the purpose of conducting the investigation

and study authorized by paragraph (1) of this subsection.

For the purpose of furnishing such information, the

Administrator may use any authority he has under this

chapter (A) to obtain information from any person, and (B)

to require such person to conduct such tests, keep such

records, and make such reports respecting research or other

activities conducted by such person as may be reasonably

necessary to carry out this subsection.

(d) Useful life of vehicles

The Administrator shall prescribe regulations under

which the useful life of vehicles and engines shall be

determined for purposes of subsection (a)(1) of this section

and section 7541 of this title. Such regulations shall provide

that except where a different useful life period is specified in

this subchapter useful life shall—

(1) in the case of light duty vehicles and light duty

vehicle engines and light-duty trucks up to 3,750 lbs. LVW

and up to 6,000 ibs. GVWR, be a period of use of five years

or fifty thousand miles (or the equivalent), whichever first

occurs, except that in the case of any requirement of this

section which first becomes applicable after November 15,

1990, where the useful life period is not otherwise specified

for such vehicles and engines, the period shall be 10 years or

100,000 miles (or the equivalent), whichever first occurs,

with testing for purposes of in-use compliance under section

7541 of this title up to (but not beyond) 7 years or 75,000

miles (or the equivalent), whichever first occurs;

ss —_——s—s— <- — —

l5a

(2) in the case of any other motor vehicle or motor

vehicle engine (other than motorcycles or motorcycle

engines), be a period of use set forth in paragraph (1) unless

the Administrator determines that a period of use of greater

duration or mileage is appropriate; and

(3) in the case of any motorcycle or motorcycle

engine, be a period of use the Administrator shall determine.

(e) New power sources or propulsion systems

In the event of a new power source or propulsion

system for new motor vehicles or new motor vehicle engines

is submitted for certification pursuant to section 7525(a) of

this title, the Administrator may postpone certification until

he has prescribed standards for any air pollutants emitted

by such vehicle or engine which in his judgment cause, or

contribute to, air pollution which may reasonably be

anticipated to endanger the public health or welfare but for

which standards have not been prescribed under subsection

(a) of this section.

(f) [FN3] High altitude regulations

(1) The high altitude regulation in effect with respect to

model year 1977 motor vehicles shall not apply to the

manufacture, distribution, or sale of 1978 and later model

year motor vehicles. Any future regulation affecting the

sale or distribution of motor vehicles or engines

manufactured before the model year 1984 in high altitude

areas of the country shall take effect no earlier than model

year 1981.

(2) Any such future regulation applicable to high

altitude vehicles or engines shall not require a percentage of

reduction in the emissions of such vehicles which is greater

than the required percentage of reduction in emissions from

motor vehicles as set forth in subsection (b) of this section.

This percentage reduction shall be determined by comparing

any proposed high altitude emission standards to high

altitude emissions from vehicles manufactured during model

year 1970. In no event shall regulations applicable to high

altitude vehicles manufactured before the model year 1984

establish a numerical standard which is more stringent than

l6a

that applicable to vehicles certified under non-hizh altitude

conditions.

(3) Section 7607(d) of this title shall appiy to any high

altitude regulation referred to in paragraph (2) and before

promulgating any such regulation, the Administrator shall

consider and make a finding with respect to—

(A) the economic impact upon consumers,

individual high altitude dealers, and the automobile industry

of any such regulation, including the economic impact which

was experienced as a result of the regulation imposed during

model year 1977 with respect to high altitude certification

requirements;

(B) the present and future availability of emission

control technology capable of meeting the applicable vehicle

and engine emission requirements without reducing model

availability; and

altit’e regulation will result in any _ significant

improvement in air quality in any area to which it shall

apply.

(g) Light-duty trucks up to 6,000 lbs. GVWR and light-

duty vehicles; standards for model years after 1993

(1) NMHC, CO, and NOx

Effective with respect to the model year 1994 and

thereafter, the regulations under subsection (a) of this

section applicable to emissions of nonmethane hydrocarbons

(NMHC), carbon monoxide (CQO), and oxides of nitrogen

(NOx) from light-duty trucks (LDTs) of up to 6,000 Ibs. gross

vehicle weight rating (GVWR) and light-duty vehicles

(LDVs) shall contain standards which provide that emissions

from a percentage of each manufacturer’s sales volume of

such vehicles and trucks shall comply with the levels

specified in table G. The percentage shall be as specified in

the implementation schedule below:

17a

TABLE G—EMISSION STANDARDS FOR NMHC,

CO, AND NO, FROM LIGHT-DUTY TRUCKS OF UP TO

6,000 LBS. GVWR AND LIGHT—DUTY VEHICLES

Column A Column B

Vehicle Type (5 yrs/50,000 mi) (10 yrs/100,000 mi)

NMHC CO NO. NMHC CO NO,

LDTs (0-3,750

lbs. LVW)

and light-duty

vehicles........ 0.25 34 04* 0.31 42 0.6"

LDTs (3,751-

5,750 Ibs.

f, ae 0.32 44 0.7** 0.40 55 097

Standards are expressed in grams per mile (gpm).

For standards under column A, for purposes of

certification under section 7525 of this title, the applicable

useful life shall be 5 years or 50,000 miles (or the equivalent),

whichever first occurs.

For standards under columm B, for purposes of

certification under section 7525 of this title, the applicable

useful life shall be 10 years or 100,000 miles (or the

equivalent), whichever first occurs.

* In the case of diesel-fueled LDTs (0-3,750 lvw) and

light-duty vehicles, before the model year 2004, in lieu of the

0.4 and 0.6 standards for NO,, the applicable standards for

NO, shall be 1.0 gpm for a useful life of 5 years or 50,000

miles (or the equivalent), whichever first occurs, and 1.25

gpm for a useful life of 10 years or 100,000 miles (or the

equivalent), whichever first occurs.

** This standard does not apply to diesel-fueled LDTs

(3,751-5,750 lbs. LV W).

IMPLEMENTATION SCHEDULE FOR TABLE G

STANDARDS

Model Year Percentage*

1994 snsensnnstneusunevenseneneneeseseune 40

1995 snnsenaueqnanensnnecssensssece 80

After 1995. sl 100

18a

*Percentages in the table refer to a percentage of each

manufacturer’s sales volume.

(2) PM Standard

Effective with respect te nodel year 1994 and

thereafter in the case of light- «ut, vehicles, and effective

with respect to the model year 1995 and thereafter in the

case of light-duty trucks (LDTs) of up to 6,000 lbs. gross

vehicle weight rating (GVWR), the regulations under

subsection (a) of this section applicable to emissions of

particulate matter (PM) from such vehicles and trucks shall

contain standards which provide that such emissions from a

percentage of each manufacturer’s sales volume of such

vehicles and trucks shall not exceed the levels specified in

the table below. The percentage shall be as specified in the

Implementation Schedule below.

PM STANDARD FOR LDTS

OF UP TO 6,000 LBS. GVWR

19a

1996 100% * 80% *

after 1996 100% * 100% *

Useful life period Standard

5/50,000 0.80 gpm

10/100,000 0.10 gpm

The applicable useful life, for purposes of certification

under section 7525 of this title and for purposes of in-use

compliance under section 7541 of this title, shall be 5 years or

50,000 miles (or the equivalent), whichever first occurs, in

the case of the 5/50,000 standard.

The applicable useful life, for purposes of certification

under section 7525 of this title and for purposes of in-use

compliance under section 7541 of this title, shall be 10 years

or 100,000 miles (or the equivalent), whichever first occurs in

*Percentages in the table refer to a percentage of each

manufacturer’s sales volume.

(h) Light-duty trucks of more than 6,000 Ibs. GVWR;

standards for model years after 1995

Effective with respect to the model year 1996 and

thereafter, the regulations under subsection (a) of this

section applicable to emissions of nonmethane hydrocarbons

(NMHC), carbon monoxide (CO), oxides of nitrogen (NOx),

and particulate matter (PM) from light-duty trucks (LDTs)

of more than 6,000 lbs. gross vehicle weight rating (GVWR)

shall contain standards which provide that emissions from a

specified percentage of each manufacturer’s sales volume of

such trucks shall comply with the levels specified in table H.

The specified percentage shall be 50 percent in model year

1996 and 100 percent thereafter.

TABLE H—EMISSION STANDARDS FOR

NMHC AND CO FROM GASOLINE AND

DIESEL FUELED LIGHT-DUTY TRUCKS

OF MORE THAN 6,000 LBS. GVWR

Column A Column B

LTD Test (5 yrs/50,000 mi) (10 yrs/100,000 mi)

Weight NMHC CO NO, NMHC CO NO, PM

3,751-5,750

3) 0.32 44 0.7* 0.46 64 0.98 0.10

Over 5,750

Ibs. TW .......... 0.39 50 1.1* 0.56 7.3 153 0.12

the case of the 10/100,000 standard.

IMPLEMENTATION SCHEDULE

FOR PM STANDARDS

Light-duty

Model year vehicles LTDs

1994 ” i cnn

1995 80% * 40% *

Standards are expressed in grams per mile (GPM).

For standards under column .A, for purposes of

certification under section 7525 of this title, the applicable

useful life shall be 5 years or 50,000 miles (or the equivalent)

whichever first occurs.

For standards under column B, for purposes of

certification under section 7525 of this title, the applicable

useful life shall be 11 years or 120,000 miles (or the

equivalent), whichever first occurs.

20a

* Not applicable to diesel-fueled LDTs.

(i) Phase II study for certain light-duty vehicles and

light-duty trucks

(1) The Administrator, with the participation of the

Office of Technology Assessment, shall study whether or not

further reductions in emissions from light-duty vehicles and

light-duty trucks should be required pursuant to this

subchapter. The study shall consider whether to establish

with respect to model years commencing after January 1,

2003, the standards and useful life period for gasoline and

diesel-fueled light-duty vehicles and light-duty trucks with a

loaded vehicle weight (L.VW) of 3,750 lbs. or less specified in

the following table:

TABLE 3—PENDING EMISSION STANDARDS

FOR GASOLINE AND DIESEL FUELED

LIGHT-DUTY VEHICLES AND LIGHT-DUTY

TRUCKS 3,750 LBS. LVW OR LESS

Pollutant Emission

level*

NMHC 0.125 GPM

NO, 0.2 GPM

CO 1.7 gpm

* Emission levels are expressed in grams per mile (GPM).

For vehicles and engines subject to this subsection for

purposes of subsection (d) of this section and any reference

thereto, the useful life of such vehicles and engines shall be a

period of 10 years or 100,000 miles (or the equivalent),

whichever first occurs.

Such study shall also consider other standards and useful life

periods which are more stringent or less stringent than

those set forth in table 3 (but more stringent than those

referred to in subsections (g) and (h) of this section).

(2)(A) As part of the study under paragraph (1), the

Administrator shall examine the need for further reductions

in emissions in order to attain or maintain the national

ambient air quality standards, taking into consideration the

waiver provisions of section 7543(b) of this title. As part of

such study, the Administrator shall also examine—

2la

(i) the availability of technology (including the

costs thereof), in the case of light-duty vehicles and light-

duty trucks with a loaded vehicle weight (L.VW) of 3,750 Ibs.

or less, for meeting more stringent emission standards than

those provided in subsections (g) and (h) of this section for

model years commencing not earlier than after January 1,

2003, and not later than model year 2006, including the lead

time and safety and energy impacts of meeting more

stringent emission standards; and

(ii) the need for, and cost effectiveness of, obtaining

further reductions in emissions from such light-duty vehicles

and light-duty trucks, taking into consideration alternative

means of attaining or maintaining the national primary

ambient air quality standards pursuant to State

implementation plans and other requirements of this

chapter, including their feasibility and cost effectiveness.

(B) The Administrator shall submit a report to

Congress no later than June 1, 1997, containing the results of

the study under this subsection, including the results of the

examination conducted under subparagraph (A). Before

submittal of such report the Administrator shall provide a

reasonable opportunity for public comment and shall include

a summary of such comments in the report to Congress.

(3)(A) Based on the study under paragraph (1) the

Administrator shall determine, by rule, within 3 calendar

years after the report is submitted to Congress, but not

later than December 31, 1999, whether—

(i) there is a need for further reductions in

emissions as provided in paragraph (2)(A);

(ii) the technology for meeting more stringent

emission standards will be available, as provided in

paragraph (2)(A)(i), in the case of light-duty vehicles and

light-duty trucks with a loaded vehicle weight (LVW) of

3,750 Ibs. or less, for model years commencing not earlier

than January 1, 2003, and not later than model year 2006,

considering the factors listed in paragraph (2)(A)(i); and

(iii) obtaining further reductions in emissions from

such vehicles will be needed and cost effective, taking into

22a

consideration alternatives as provided in paragraph

(2)(A \(ii).

The rulemaking under this paragraph shall commence within

3 months after submission of the report to Congress under

paragraph (2)(B).

(B) If the Administrator determines under

subparagraph (A) that—

(i) there is no need for further reductions in

emissions as provided in paragraph (2)(A);

(ii) the technology for meeting more stringent

emission standards will not be available as provided in

paragraph (2)(A)(i), in the case of light-duty vehicles and

light-duty trucks with a loaded vehicle weight (LVW) of

3,750 lbs. or less, for model years commencing not earlier

than January 1, 2003, and not later than model year 2006,

considering the factors listed in paragraph (2)(A)(i); or

(iii) obtaining further reductions in emissions from

such vehicles will not be needed or cost effective, taking into

consideration alternatives as provided in paragraph

(2)(A (ii),

the Administrator shall not promulgate more stringent

standards than those in effect pursuant to subsections (g)

and (h) of this section. Nothing in this paragraph shall

prohibit the Administrator from’ exercising the

Administrator’s authority under subsection (a) of this

section to promulgate more stringent standards for light-

duty vehicles and light-duty trucks with a loaded vehicle

weight (LVW) of 3,750 lbs. or less at any other time

thereafter in accordance with subsection (a) of this section.

subparagraph (A) that—

(i) there is a need for further reductions in

emissions as provided in paragraph (2)(A);

(ii) the technology for meeting more stringent

emission standards will be available, as provided in

paragraph (2)(A)(i), in the case of light-duty vehicles and

light-duty trucks with a loaded vehicle weight (LVW) of

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3,750 Ibs. or less, for model years commencing not earlier

than January 1, 2003, and not later than model year 2006,

considering the factors listed in paragraph (2)(A)(i); and

(iii) obtaining further reductions in emissions from

such vehicles will be needed and cost effective, taking into

consideration alternatives as provided in paragraph

(2)(A)(ii),

the Administrator shall either promulgate the standards

(and useful life periods) set forth in Table 3 in paragraph (1)

or promulgate alternative standards (and useful life periods)

which are more stringent than those referred to in

subsections (g) and (h) of this section. Any such standards

(or useful life periods) promulgated by the Administrator

shall take effect wéth respect to any such vehicles or engines

no earlier than the model year 2003 but not later than model

year 2006, as determined by the Administrator in the rule.

(D) Nothing in this paragraph shall be construed by the

Administrator or by a court as a presumption that any

standards (or useful life period) set forth in Table 3 shall be

promulgated in the rulemaking required under this

paragraph. The action required of the Administrator in

accordance with this paragraph shall be treated as a

nondiscretionary duty for purposes of section 7604(a)(2) of

this title (relating to citizen suits).

(E) Unless the Administrator determines not to

promulgate more stringent standards as provided in

subparagraph (B) or to postpone the effective date of

standards referred to in°Table 3 in paragraph (1) or to

establish alternative standards as provided in subparagraph

(C), effective with respect to model years commencing after

January 1, 2003, the regulations under subsection (a) of this

section applicable to emissions of nonmethane hydrocarbons

(NMHC), oxides of nitrogen (NOx), and carbon monoxide

(CO) from motor vehicles and motor vehicle engines in the

classes specified in Table 3 in paragraph (1) above shall

contain standards which provide that emissions may not

exceed the pending emission levels specified in Table 3 in

paragraph (1).

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(j) Cold CO standard

(1) Phase I

Not later than 12 months after November 15, 1990, the

Administrator shall promulgate’ regulations under

subsection (a) of this section applicable to emissions of

carbon monoxide from 1994 and later model year light-duty

vehicles and light-duty trucks when operated at 20 degrees

Fahrenheit. The regulations shall contain standards which

provide that emissions of carbon monoxide from a

manufacturer’s vehicles when operated at 20 degrees

Fahrenheit may not exceed, in the case of light-duty

vehicles, 10.0 grams per mile, and in the case of light-duty

trucks, a level comparable in stringency to the standard

applicable to light-duty vehicles. The standards shall take

effect after model year 1993 according to a phase-in schedule

which requires a percentage of each manufacturer's sales

volume of light-duty vehicles and light-duty trucks to

comply with applicable standards after model year 1993.

The percentage shall be as specified in the following table:

PHASE-IN SCHEDULE FOR COLD START

STANDARDS

Model Year Percentage

I oaternenncnniniaseetieaastinsenaenimemmneeenns 40

aaa tiiteunnnennceeisamereisnmnnienignsepennionncsennsanseues 80

TRE aT 100

(2) Phase II

(A) Not later than June 1, 1997, the Administrator

shall complete a study assessing the need for further

reductions in emissions of carbon monoxide and the

maximum reductions in such emissions achievable from

model year 2001 and later model year light-duty vehicles and

light-duty trucks when operated at 20 degrees Fahrenheit.

(B)(i) If as of June 1, 1997, 6 or more

nonattainment areas have a carbon monoxide design value of

9.5 ppm or greater, the regulations under subsection (a)(1) of

this section applicable to emissions of carbon monoxide from

model year 2002 and later model year light-duty vehicles and

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light-duty trucks shall contain standards which provide that

emissions of carbon monoxide from such vehicles and trucks

when operated at 20 degrees Fahrenheit may not exceed 3.4

grams per mile (gpm) in the case of light-duty vehicles and

4.4 grams per mile (gpm) in the case of light-duty trucks up

to 6,000 GVWR and a level comparable in stringency in the

case of light-duty trucks 6,000 GVWR and above.

(ii) In determining for purposes of this

subparagraph whether 6 or more nonattainment areas have

a carbon monoxide design value of 9.5 ppm or greater, the

Adm nistrator shall exclude the areas of Steubenville, Ohio,

and Oshkosh, Wisconsin.

(3) Useful-life for phase I and phase II standards

In the case of the standards referred to in paragraphs

(1) and (2), for purposes of certification under section 7525 of

this title and in-use compliance under section 7541 of this

title, the applicable useful life period shall be 5 years or

50,000 miles, whichever first occurs, except that the

Administrator may extend such useful life period (for

purposes of section 7525 of this title, or section 7541 of this

title, or both) if he determines that it is feasible for vehicles

and engines subject to such standards to meet such

standards for a longer useful life. If the Administrator

extends such useful life period, the Administrator may make

an appropriate adjustment of applicable standards for such

extended useful life. No such extended useful life shall

extend beyond the useful life period provided in regulations

under subsection (d) of this section.

(4) Heavy-duty vehicles and engines

The Administrator may also promulgate regulations

under subsection (a)(1) of this section applicable to emissions

of carbon monoxide from heavy-duty vehicles and engines

when operated at cold temperatures. -

(k) Control of evaporative emissions

The Administrator shall promulgate (and from time to

time revise) regulations applicable to evaporative emissions

of hydrocarbons from all gasoline-fueled motor vehicles—

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(1) during operation; and

(2) over 2 or more days of nonuse;

under ozone-prone summertime conditions (as determined

by regulations of the Administrator). The regulations shall

take effect as expeditiously as possible and shall require the

greatest degree of emission reduction achievable by means

reasonably expected to be available for production during

any model year to which the regulations apply, giving

appropriate consideration to fuel volatility, and to cost,

energy, and safety factors associated with the application of

the appropriate technology. The Administrator shall

commence a rulemaking under this subsection within 12

months after November 15, 1990. If final regulations are not

promulgated under this subsection within 18 months after

November 15, 1990, the Administrator shall submit a

statement to the Congress containing an explanation of the

reasons for the delay and a date certain for promulgation of

such final regulations in accordance with this chapter. Such

date certain shall not be later than 15 months after the

expiration of such 18 month deadline.

(1) Mobile source-related air toxics

(1) Study

Not later than 18 months after November 15, 1990, the

Administrator shall complete a study of the need for, and

feasibility of, controlling emissions of toxic air pollutants

which are unregulated under this chapter and associated

with motor vehicles and motor vehicle fuels, and the need

for, and feasibility of, controlling such emissions and the

means and measures for such controls. The study shall focus

on those categories of emissions that pose the greatest risk

to human health or about which significant uncertainties

remain, including emissions of benzene, formaldehyde, and 1,

3 butadiene. The proposed report shall be available for

public review and comment and shall include a summary of

all cornments.

(2) Standards

Within 54 months after November 15, 1990, the

Administrator shall, based on the study under paragraph (1),

—_ ---

27a

promulgate (and from time to time revise) regulations under

subsection (a)(1) of this section or section 7545(c)(1) of this

title containing reasonable requirements to _ control

hazardous air pollutants from motor vehicles and motor

vehicle fuels. The regulations shall contain standards for

such fuels or vehicles, or both, which the Administrator

determines reflect the greatest degree of emission reduction

achievable through the application of technology which will

be available, taking into consideration the standards

established under subsection (a) of this section, the

availability and costs of the technology, and noise, energy,

and safety factors, and lead time. Such regulations shall not

be inconsistent with standards under subsection (a) of this

section. The regulations shall, at a minimum, apply to

emissions of benzene and formaldehyde.

(m) Emissions control diagnostics

(1) Regulations

Within 18 months after November 15, 1990, the

Administrator shall promulgate regulations under

subsection (a) of this section requiring manufacturers to

install on all new light duty vehicles and light duty trucks

diagnostics systems capable of—

(A) accurately identifying for the vehicle’s useful

life as established under this section, emission-related

systems deterioration or malfunction, including, at a

minimum, the

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