# Respondents Brief — Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0643%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2004 - **Citation:** 541 U.S. 246 ## Text 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, v. 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) iv 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 Vv 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 vi 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. 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Stat. § 39-26-114(22) (2003) ......secsersereneeeneeeneeenees 30 Conn. Gen. Stat. § 12-412(67)-12-412(68) (20038).......seseseers 30 — = —_—, Al ix 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 X 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, v. 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 2 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- 3 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” 4 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. 5 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 6 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 7 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- 8 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- 9 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- 10 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 — ~ ——<- * 11 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. 12 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- 13 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 14 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 a RR PB. -_-_-—_> — 15 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 16 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 17 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). 18 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”). 19 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 20 “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 21 “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 22 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”). 23 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- 24 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). 25 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 26 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 27 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 28 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 29 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- 30 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). ——— 31 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.” 32 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 33 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 34 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. 35 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- 36 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). 37 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 38 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- ie 39 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 40 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). 42 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 43 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 44 “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 la 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 2a 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. (c) Pollution prevention 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. 3a [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. da [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”. 5a [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. 6a (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). (C) Lead time and stability 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 7a 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 oth [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0643%3A09. Public record. Not legal advice.