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

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No. 02-1343

IN THE

Supreme Court of the Anit

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

Vv.

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 RESPONDENTS

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

COALITION FOR CLEAN AIR, INC.,

COMMUNITIES FOR A BETTER ENVIRONMENT,

INC., PLANNING AND CONSERVATION LEAGUE,

AND SIERRA CLUB

GAIL RUDERMAN FEUER *

JULIE MASTERS

ZAHIRAH WASHINGTON

NATURAL RESOURCES DEFENSE

COUNCIL

1314 Second Street

Santa Monica, CA 90401

(310) 434-2300

CHRISTOPHER J. WRIGHT

HARRIS, WILTSHIRE & GRANNIS LLP

1200 18th St., N.W.

Washington, DC 20036

202-730-1300

* Counsel of Record

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

NOV 17 2003

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

iransit buses, without imposing any production mandates or

other obligations on manufacturers.

(i)

RULE 29.6 STATEMENT

The respondents joining this brief are Natural Resources

Defense Council, Inc., Coalition For Clean Air, Inc.,

Communities For A Better Environment, Inc., Planning and

Conservation League, and the Sierra Club. Each is a non-

profit organization and no parent or publicly held company

owns 10% or more of any these organizations,

TABLE OF CONTENTS

QUESTION PRESENTED. ......0:0:ccecsescsseseserseseserseserecees

OE TY | Sa

THE SOUTH COAST AIR_ BASIN’S

“EXTREME” AIR POLLUTION PROBLEM.

THE PRIMARY ROLE OF STATES AND

LOCAL GOVERNMENTS IN _ PRE-

VENTING AND CONTROLLING AIR

SEITEN cnnnescnsnnnccensendcsncescsessnsensnnsssssssceses

THE ACT’S COMPREHENSIVE SCHEME

FOR ESTABLISHING EMISSIONS

LIMITATIONS FOR THE PRODUCTION

OF NEW MOTOR VEHICLES...................0000.

. THE PURPOSE AND DESIGN OF CLEAN

VEHICLE PURCHASE INCENTIVE

VI. THE DECISIONS BELOW UPHOLDING

URED DEM D DOES ccccccccccsccscsccecsecsccscsecsscscress

SUMMARY OF ARGUMENT ....00.......ccccccccccseseeseeeeees

I. CONGRESS DID NOT INTEND TO

PREEMPT STATE AND LOCAL VEHICLE

PURCHASE REQUIREMENTS SUCH AS

THE DISTRICT’S FLEET RULEBG...................

(iii)

TABLE OF CONTENTS—Continued

A. Under The Clean Air Act, A “Standard”

Is A Numerical Production Mandate

Imposed On Manufacturers..............00-+000+

B. The Fleet Rules Are Not “Standards”

C. Section 246 of the Act, Which Mandates

Fleet Rules In Certain Circumstances,

Further Confirms That “Standards”

Under Section 209(a) Do Not Include

Fleet Purchase Requirements ........ Bicssssneses

D. The Savings Clause And The Presump-

tion Against Preemption Support The

Conclusion That The Fleet Rules Are Not

E. Section 177 Does Not Expand The Scope

Of Preemption Under Section 209(a)........

Il. THE FLEET RULES ADVANCE THE

PURPOSES OF THE CLEAN AIR ACT AND

DO NOT REQUIRE MANUFACTURERS TO

PRODUCE A “THIRD VEHICLE.” ..............0+++

A. Preempting The Fleet Rules Would

Frustrate Congress’s Intent That States

And Local Governments Reduce Air

PUERIIG ED cccscssnsssesescasecessessvessscessuscsunssesassnsce

B. Preempting The Fleet Rules Would Not

Further The Purpose Of Section 209(a)

To Protect Manufacturers From Having

To Produce A “Third Vehicle.” ............0+.

IN CLITIIUIN .cccccocecccscesecccscccesscesscesscnsssesssnssssessessossees

TABLE OF AUTHORITIES

CASES

American Airlines v. Wolens, 513 U.S. 219

American Automobile Mfrs. Assoc. v. Cahill, 152

Fey CO Ges DED crnnernscsnecmnnssssnsenssensnsneees

Ass'n of Int'l Automobile Mfrs. Inc. v.

Commissioner, 208 F.3d 1 (1st Cir. 2000) ........

Barnett Bank of Marion County v. Nelson, 517

a GP QUOTED cxnsrerrennemamtenevencenmmmeneninnemnen

California Division of Labor Standards

Enforcement v. Dillingham Const., N.A., 519

Cipollone v. Liggett Group, Inc., 505 U.S. 504

City of Columbus v. Ours Garage & Wrecker

Serv., Inc., 536 U.S. 424 (2002) .......c.ccceseseseeees

Commissioner v. Lundy, 516 U.S. 235 (1996).......

De Buono v. NYSA-ILA Med. and Clinical Se?vs.

Fund, 520 U.S. 806 (1997) .......ccceccseeeseeeees 37,

Desert Palace, Inc. v. Costa, 123 S. Ct. 2148

Egelhoff v. Egelhoff, 532 U.S. 141 (2001).............

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

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

GR GS GID cnsnsssensnsenenssecnssmecssnassenemmsmnnssnsess

Harrison v. PPG Indus., Inc., 446 U.S. 578

Huron Portland Cement Co. v. City of Detroit,

Se > Ge COED cemmmmnnenenee

38, 48

TABLE OF AUTHORITIES—Continued

Page

King v. St. Vincent's Hosp., 502 U.S, 215 (1991). 22

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...37, 40, 44

Morales v. Trans World Airlines, Inc., S04 U.S.

| | | 30

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

1095 (D.C. Cir. 1979), cert. denied, 446 U.S.

DBD (PGI ccccovcsccocessccsesscccccsccesssessecsssssessssesssssesce 7, 26

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

Dep't of Envtl. Conservation, (7 F.3d 521 (2d

0 12

New York State Conf. of Blue Cross & Blue

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

So 30, 37, 40

NLRB vy. Federbush Co., 12) F.2d 954 (2d Cir.

a 22

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)... 22

Rush Prudential HMO, Inc., v. Moran, 536 U.S.

| | 38

Shea v. Vialpando, 416 U.S. 251 (1974) ...cccccceeeeee 31

Shell Oil Co. v. lowa Dep't of Revenue, 488 U.S.

| | ee 22

Sprietsma v. Mercury Marine, 537 U.S. SI

0 22, 37, 40

Train v. NRDC, 421 U.S. 60 (1975S) ...ccccccccceeneeeeees passim

Union Elec. Co. v. EPA, 427 US. 246

ae 7, 8, 10, 38

United States v. James, 478 U.S. 597 (1986) ........ 31

United States v. Locke, 529 U.S. 89 (2000)... 38

Washington v. General Motor Corp., 406 U.S.

BOD (BGT 2). nccccccccccssecccssscssessesscsssssesssssssssssonsosees 41,42

Whitman v. American Trucking Ass'n, 531 U.S.

Ee SF

vil

TABLE OF AUTHORITIES—Continued

STATUTES Page

Clean Air Act of 1963; Pub. L. No. 88-206, 77

NN Le 6, 38

National Emissions Standards Act, Pub. L. 90-

046, Si Seat. 4BS (19G7) .....cccccccccccccccceccccscocessees 11,18

Clean Air Act amendments, Pub. L. 89-271, 79

ee 10

res Oe iittala iatinininidiiirasaiiinieee 30

42 U.S.C. § 7401, Clean Air Act § 101......... 6, 21, 38, 41

42 U.S.C. § 7407(a), Clean Air Act § 107(a)........ 7

42 U.S.C. § 7407(d), Clean Air Act § 107(d)........ 4

42 U.S.C. § 7409, Clean Air Act § 109 00000. 4

42 U.S.C. § 7410(a), Clean Air Act § 110(a)........ 7,49

42 U.S.C. § 7416, Clean Air Act $116...00000000000.. passim

42 U.S.C. § 7502(a), Clean Air Act § 172............. 4

42 U.S.C. § 7507, Clean Air Act § 177.000.000.000... passim

42 U.S.C. § 7509(b), Clean Air Act § 179(b)........ 7

42 U.S.C. §§ 7511-7514, Clean Air Act § 181-

TT 4.8

42 U.S.C. § 751 1(a), Clean Air Act § 181(a)........ 4

42 U.S.C. § 751 la(c), Clean Air Act § 182(c)...... &

42 U.S.C. § 751 la(d), Clean Air Act § 182(d)...... 8

42 U.S.C. § 7513(c), Clean Air Act § 188(c)........ 4

42 U.S.C. § 7513(e), Clean Air Act § 188(e)........ 4

42 U.S.C. § 7521, Clean Air Act § 202.000.000.000... passim

42 U.S.C. § 7522, Clean Air Act § 203............. 10, 19, 27

42 U.S.C. § 7525, Clean Air Act § 206.......00...0.... 11,27

42 U.S.C. § 7543, Clean Air Act § 209 0000000... passim

42 U.S.C. § 7545, Clean Air Act § 211 0.0.0.0... 10

42 U.S.C. § 7550(3), Clean Air Act § 216(3)........ 11,27

42 U.S.C. § 7573, Clean Air Act § 233.000.000.000... 10

42 U.S.C. § 7583(a), Clean Air Act § 243(a)........ 28

42 U.S.C. § 7586, Clean Air Act § 246.000.000.000... passim

vill

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. § 7589(f), Clean Air Act § 249(f)......... 49

42 U.S.C. § 7602(k), Clean Air Act § 302(K)....... 26

49 U.S.C. app. § 13OS(a) ......ccccceeereeerseeereseneeeneeees 30

Cal. Health & Safety Code § 40447,5 .......cccce00e 9, 13, 42

Cal. Health & Safety Code § 43101 oo... ccceceeeees 13

Cal. Health & Safety Code § 43102 ........ccccccccceeees 13

Cal. Health & Safety Code § 43804 ..0........cccccceeees 32

Cal. Health & Safety Code, §§ 44243-44247,

BB SEZTS 8 BBG. cececcrecceccsscceevccssncccsssesoconessseoeeees 15

Ga. Code Annr., § 48-7-40.16........ccccccccereesereeereees 16

Kan. Stat. Ann. § 79-32, 2001 ......cccccseeseseeeseereeeees 16

W.Va. Code §§ 11-6D-1 — 11-6D-8 00.0... cc ceeeeees 16

REGULATIONS:

58 Fed. Reg. 3334 (Jan. 8, 1993) ......ccccccceceeeeeeeees 4

61 Fed. Reg. 10920 (Mar. 18, 1996) .........ccccceeeees 4

63 Fed. Reg. 20103 (April 23, 1998).........cccccseeees 47

65 Fed. Reg. 6091 (Feb. 8, 2000) .......ccccceseeeeeeees 4

Cal. Code Regs. tit. 13, § 1961(a) (2003)..........04.. 13, 32

Cal. Code Regs. tit. 13, § 1961(b) (2003)..........006 13

Cal. Code Regs. tit. 13, § 1961(e) (2003)..........0+. 13

Cal. Code Regs. tit. 17, § 9300 (2003) «0... 5

MISCELLANEOUS:

99-30 Cal. Reg. L. Bull. 383 (Jul. 23, 1999),

available at 99-30 CRLB 383 (Lexis 1999)...... 6

113 Cong. Rec. 30945 (1967)......cccccssereeereeeeees 42

Cal. Assem. Comm. On Natural Resources,

Analysis of Sen. Bill No. 151 (1987-1988 Reg.

Sess.) Jume 29, 1987, p.4. ....cccccccecseseeeesereeseeeeeees 14, 42

California Air Resources Board, Lower-Emission

School Bus Program 2001, available at

TABLE OF AUTHORITIES—Continued

Page

EPA, Health Assessment Document for Diesel

Engine Exhaust (May 1, 2002), available at

http://cfpub.epa.gov/ncea/cfm/recordisplay.cf

I cetcccemncrcsssumancssevcnsnecmenneneemneen 6

H.R. Rep. No. 90-728 (1967) .....ccccccsccseeeeseeees 12, 42, 45

H.R. Rep. No. 95-294 (1977) v..cccccccsesseesseeeeeeeeenes _ 26

H.R. Rep. No. 101-490, pt. 1 (1990) oo... cece 9, 35

Sen. Comm. On Public Works, 103d Cong., Ist

Sess., A Legislative History of the Clean Air

Act Amendments of 1990, Serial No. 103-38

Goel enavessenenecseeneenemmensmamesenseeenanenensneemenaute passim

S. Rep. No. 90-403 (1967) .......ccccccseeseeseeeeeeenens 12, 26, 44

U.S. Dep't of Health, Education, & Welfare, A

Digest of State Air Pollution Laws (Public

SEED GIIU. FP cnccccsssccnssensesssnnsssesssnssessoucsseses 7

Waxman, Henry, et al., Cars, Fuels, And Clean

Air: A Review of Title Il of the Clean Air Act

Amendments of 1990, 21 Envtl. L. 1947, 1950

STATUTORY PROVISIONS INVOLVED

Relevant portions of sections 101, 116, 177, 202, 203, 209,

and 246 of the Clean Air Act, 42 U.S.C. §§ 7401, 7416, 7507,

7521, 7522, 7543, and 7586, are reprinted in the appendix to

the brief filed by respondent South Coast Air Quality

Management District. For ease of reference, in this brief

we refer to those provisions by their section number in the

Clean Air Act.

INTRODUCTION

The South Coast Air Basin—which includes Los Angeles

and Orange Counties as well as parts of San Bernardino and

Riverside Counties—“experiences the most serious air quality

problems in the nation, primarily due to motor vehicle

pollution.” Pet. App. 5a. Respondent South Coast Air

Quality Management District (the “District”) concluded in a

1999 study that about 70% of the carcinogenic risk from air

quality in the basin is attributable to “diesel particulate

emissions,” 20% to “other toxics associated with mobile

sources,” and about 10% to “stationary sources.” J.A. 263.

The District adopted the “Fleet Rules” at issue in this case to

address the region’s serious air quality problems, and in

particular, to decrease the cancer and other health risks

associated with diesel exhaust and other motor vehicle

emissions. By 2010 the Fleet Rules are expected to eliminate

at least 1,770 tons of dangerous smog-forming pollution in

the South Coast region.' The respondents filing this brief—

non-profit organizations dedicated to the protection of the

environment and public health—intervened in the district

'This number is the sum of the nitrogen oxides (NOx) reduction

estimates from the staff reports for all six rules. The table of emissions

reductions for Rule 1186.1 is located at volume 30 of the Administrative

Record at 8651 (30 AR 8651), Rule 1191 at 25 AR 7450, Rule 1192 at 26

AR 7555, Rule 1193 at 27 AR 7874, Rule 1194 at 30 AR 8922, and Rule

1196 at 33 AR 9810.

court to defend the Fleet Rules, recognizing that they are an

essential part of the region’s efforts to achieve clean air.

Petitioners Engine Manufacturers Association and Western

States Petroleum Association (the “engine manufacturers”)

claim that the Fleet Rules are preempted by section 209(a) of

the Clean Air Act (the “Act”), which provides that states

(other than California) and local governments may not adopt

or attempt to enforce “standards relating to the control of

emissions from new motor vehicles.” In making this

argument, the engine manufacturers deliberately ignore one

of the core functions of the Act, which places the “primary

responsibility” for reducing air pollution—whatever the

source—in the hands of states and local governments. In fact,

states must achieve clean air by specified deadlines, or face

harsh penalties such as the loss of federal highway funds.

That is why Congress preserved, through section 116, the

states’ historically broad authority to adopt any “standard”

and “requirement,” subject only to three limited exceptions

(including the exception in section 209(a)). The engine

manufacturers’ theory of this case would render states and

local governments powerless to control the dominant source

of air pollution, namely, motor vehicles. Congress simply

could not have intended to place the enormous responsibility

to achieve clean air on the shoulders of states and their local

governments, only to tie their hands and prevent them from

reaching the main source of pollution.

Moreover, in hopes of redefining section 209(a) so that its

otherwise limited preemption applies here, the engine

manufacturers and the United States craft, an overly broad

definition of preempted “standards.” They base their

characterization of “standards” on various dictionary

definitions that would require this Court to completely rewrite

the motor vehicle provisions of the Act, including broadening

the meaning of federal motor vehicle “standards” set forth in

section 202; eliminating the Act’s distinction between

“standards” and “requirements” in sections 209(e), 246, and

116; and deleting section 246’s otherwise inconsistent

mandate that states with unhealthful air quality adopt fleet

purchase requirements.

Further, the engine manufacturers’ overly expansive

reading of “standards” in section 209(a) to include fleet

purchase requirements simply because they “relat[e] to the

control of emissions from new motor vehicles” would by

necessity sweep purchase incentive programs into section

209(a)’s preemptive reach because these also “relat[e] to the

control of emissions from new motor vehicles.” States and

local governments have long relied upon these incentive

programs to control air pollution within their borders. While

the United States recognizes that section 209(a) was never

intended to preempt these critical incentive programs, it fails

to distinguish them from the Fleet Rules.

The simple fact is that the only way to avoid rewriting the

motor vehicle provisions of the Act is to interpret “standards”

as the term is used elsewhere in these same provisions—as

numeric production mandates imposed on manufacturers.

Such an interpretation would necessarily exclude the Fleet

Rules from the meaning of preempted “standards” in section

209(a), and is consistent with the central purpose of the Act to

achieve clean air as expeditiously as possible. Further, an

interpretation that saves the Fleet Rules from preemption

would not undermine Congress’s sole purpose in adopting

section 209(a)—to protect manufacturers from having to

produce new vehicles to meet emissions standards different

from those adopted by California and the federal government.

The Fleet Rules do no such thing, but instead merely require

purchasers to choose the cleanest vehicles from among those

already produced and certified for sale in California.

As the district court below correctly held, the Fleet Rules

are not preempted “standards” because they “accept as given

the existing [California] vehicle standards” and “impose no

new emission requirements on manufacturers whatsoever.”

Pet. App. 2ia. For the same reasons, the court of appeals

affirmed the district court’s decision on the basis of its “well-

reasoned opinion.” /d. at 2a. The law is clear, and this Court

should similarly affirm the decisions below.

STATEMENT

I. THE SOUTH COAST AIR _ BASIN’S

“EXTREME” AIR POLLUTION PROBLEM.

The Clean Air Act charges the United States Environ-

mental Protection Agency (“EPA”) with the duty to establish

National Ambient Air Quality Standards (“NAAQS”), which

are the maximum levels of certain pollutants, including ozone

(smog) and particulate matter, that are allowable in the

ambient air. 42 U.S.C. § 7409. Under the Act, EPA

classifies regions in the country as either being in

“attainment” or “nonattainment” with the NAAQS. 42

U.S.C. § 7407(d)(1)(A). Under the 1990 Amendments to the

Act, regions are further classified as being in “marginal,”

“moderate,” “serious,” “severe,” or “extreme” nonattainment,

according to the severity of their ambient levels of individual

pollutants. 42 U.S.C. §§ 7502(a), 7511-7514.

The South Coast Air Basin (“South Coast”) is the only

region in the United States classified as an “extreme”

nonattainment area for ozone, and is classified as a “serious”

nonattainment area for particulate matter. 61 Fed. Reg.

10920, 10955 (Mar. 18, 1996); 58 Fed. Reg. 3334, 3337-38

(Jan. $, 1993). The 1990 Amendments require the South

Coast to meet the NAAQS for ozone by November 15, 2010,

and for particulate matter by December 31, 2006. 65 Fed.

Reg. 6091, 6100 (Feb. 8, 2000); 42 U.S.C. § 751 1(a)(1)(Table

1); 42 U.S.C. § 7513(c)(2), (e).

Both ozone and particulate matter pose serious health

threats. Ozone is known to contribute to respiratory illness,

—— =

decreased lung function, and premature death. J.A. 244-45,

Particulate matter is comprised of microscopic particles that

can bypass respiratory defense mechanisms and penetrate

deep into the respiratory system. J.A. 248. The presence of

large quantities of fine particles in the air has been shown to

lead to higher mortality rates, greater occurrences and

severity of asthma and cardiovascular disease, and a decline

in children’s lung function. J.A. 248.

The unhealthful air quality in the South Coast is

“dominated by motor vehicle pollution.” J.A. 80. In fact,

“mobile sources are the single most important cause of ozone

pollution, the nation’s most widespread air pollutant.”

Waxman, Henry, et al., Cars, Fuels, And Clean Air: A Review

of Title Il of the Clean Air Act Amendments of 1990, 2\ Envtl.

L. 1947, 1950 (1991). Motor vehicles contribute more than

half of the oxides of nitrogen (“NOx”) and hydrocarbons

found in the ambient air in the South Coast, J.A. 80, which

react with sunlight to produce ozone. J.A. 244. Thus, ozone

can be controlled effectively only by a strategy to control the

NOx and hydrocarbon emissions from motor vehicles. Motor

vehicles, especially diesel trucks and buses, are also

significant sources of particulate matter. J.A. 256.

In addition, motor vehicles “are the predominant source of

cancer Causing air pollutants” in the South Coast. J.A. 256.

A comprehensive study completed by the District in 1999—

the Multiple Air Toxics Exposure Study (“MATES II”’)—

showed that an overwhelming 70% of all cancer risk from air

pollution comes solely from diesel particulate emissions. J.A.

263. That study followed the 1998 listing by the California

Air Resources Board (“CARB”) of diesel exhaust particulate

as a “toxic air contaminant” under the California Health &

Safety Code. See Cal. Code of Regs. tit. 17, § 93000 (2003).

CARB listed diesel exhaust based on an exhaustive review of

the scientific literature, including more than two dozen

studies that showed that exposure to diesel exhaust increases

the risk of developing lung cancer and other non-cancer

adverse health effects. 99-30 Cal. Reg. L. Bull. 383 (Jul. 23,

1999), available at 99-30 CRLB 383 (Lexis 1999), EPA has

similarly found that long-term exposure to diesel exhaust

poses a lung cancer hazard. EPA, Health Assessment

Document For Diesel Engine Exhaust (May 1, 2002),

available at htp://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?

deid=29060,

It was in response to the alarming findings in the MATES

Il and other cancer studies, combined with the recognition

that motor vehicles are the dominant source of smog and

particulate pollution, that the District developed the six Fleet

Rules at issue in this case,

Il. THE PRIMARY ROLE OF STATES AND

LOCAL GOVERNMENTS IN PREVENTING

AND CONTROLLING AIR POLLUTION.

Congress enacted the Clean Air Act in 1963 to address the

rapidly increasing levels of harmful air pollution throughout

the United States. In section 101(b)(1), Congress declared

that the central purpose of the Act is “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.”

When Congress first enacted the Act, it granted only

limited powers to federal authorities, allowing them to

intervene to abate interstate pollution in specified circum-

stances. Train v. NRDC, 421 U.S. 60, 63-64 (1975); Clean

Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392. Later

amendments in 1965, 1967, 1970, 1977, and 1990 broadened

the role of the federal government in the control of motor

vehicle emissions but continued to place the principal

responsibility for reducing air pollution on states end local

governments. As Congress made clear in section 101(a)(3):

[A]ir 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.

See also Train, 421 U.S.-at 64; Union Elec. Co. v. EPA, 427

U.S. 246, 256 (1976).

The primary role of states under the Act is consistent with

the dominant role the states played in regulating air pollution

prior to Congress's adoption of the Act in 1963. By 1963,

forty states had adopted some form of air pollution control

legislation. U.S. Dep't of Health, Education, & Welfare, A

Digest of State Air Pollution Laws (Public Health Serv.

1963). While California was the first state to regulate motor

vehicle emissions, starting in 1957, Motor & Equip. Mfrs.

Ass'n v. EPA, 627 F.2d 1095, 1109 n.26 (D.C. Cir. 1979),

cert. denied, 446 U.S. 952 (1980), by 1963 California was

among seven states and the District of Columbia that had

adopted legislation specifically addressing motor vehicle

emissions. See U.S. Dep't of Health, Education, & Welfare,

supra, at 11-19 (California), 39 (Colorado), 46 (District of

Colombia), 92 (Indiana), 94 (Kansas), 115 (Michigan), 124

(New Hampshire), 139 (New York).

Congress's intent to leave to states and local governments

the lead role in eliminating air pollution is echoed throughout

the Act. See, e.g., 42 U.S.C. § 7407(a) (“Each State shall

have the pumary responsibility for assuring air quality within

the entire geographic area comprising such State.”); 42

U.S.C. § 7410(a)(1) (requiring states to submit implemen-

tation plans containing enforceable measures to attain the

NAAQS). Indeed, the Act imposes harsh penalties on states

that fail to achieve compliance with the NAAQS by the

specified deadlines. See, e.g., 42 U.S.C. § 7509(b)(1) (with-

holding federal highway funds for all projects in region). As

this Court has recognized, the Act thus reflects Congress's

“determination to ‘tak[e] a stick to the States’ in order to

guarantee the prompt attainment and maintenance of

specified air quality standards.” Union Elect. Co., 427 U.S. at

249 (quoting Train, 421 U.S. at 64) (citations omitted).

To insure that states are capable of meeting the NAAQS on

time, the Act provides broad authority to states and local

governments to contre! iobile and stationary sources of air

pollution. Congress did not, as the engine manufacturers

suggest, Pet. Br. 3-4, divide the Act down the middle,

limiting states and local governments to the regulation of

stationary sources. While the Act contains requirements for

state regulation of stationary sources, it also mandates that

nonattainment areas adopt specified regulations to control

mobile sources of pollution. 42 U.S.C. §§ 7511-7514. These

additional requirements become increasingly stringent

depending on the severity of air pollution in the region. For

example, section 182 requires any state containing any part of

a “serious” nonattainment area for NOx to adopt an

“enhanced vehicle inspection and maintenance program.” 42

U.S.C. § 751 la(c)(3). Further, states containing any part of a

“severe” nonattainment area for NOx additionally are

required to adopt “transportation control strategies . . . to

attain reduction in motor vehicle emissions as necessary” to

achieve attainment. 42 U.S.C. § 751 la(d)(1)(A).

Moreover, by 1990 Congress recognized that many regions

would not meet the NAAQS without more aggressive mobile

source measures, such as the use of clean fuels in motor

vehicles, leading to enactment of section 246’s clean-fuel

vehicle mandate. See Sen. Comm. On Public Works, 103d

Cong., Ist Sess., A Legislative History of the Clean Air Act

Amendments of 1990, Serial No. 103-38, at 2572-2573

(1993) (Statement of Rep. Waxman). Section 246 requires

states with any part of a serious, severe, or extreme

nonattainment area for ozone or a nonattainment area for

carbon monoxide to adopt a “clean-fuel vehicle program”

mandating the purchase of new motor vehicles by certain

fleet operators. See also 42 U.S.C. § 751 1a(c)(4). Similar to

the Fleet Rules, a state’s clean-fuel vehicle program under

section 246(b) must “contain provisions requiring that at least

a specified percentage of all new covered fleet vehicles . . .

shall be clean-fuel vehicles and shall use clean alternative

fuels when operating in the covered area.” Notably, when

Congress enacted section 246, it recognized that the District

would be adopting its own clean-fuel vehicle fleet rules:

In the meantime, 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. California

appears to believe that M85 (85% methanol) would be

the ftrel of choice for the foreseeable future—or at least

until 2005.

H.R. Rep. No. 101-490, pt. 1, at 177 (1990) (emphasis

added).”

Finally, in addition to the numerous mobile and stationary

source regulations states and local governments are required

to adopt, the Act explicitly preserves for states and local

governments the broad authority they enjoyed prior to 1963

to control and prevent air pollution within their borders. As

section 116 provides:

[N]othing in [the Act] shall preclude or deny the right of

any State or political subdivision thereof to adopt or

enforce (1) any standard or limitation respecting emis-

sions of air pollutants or (2) any requirement respecting

control or abatement of air pollutants.

This general authority reaffirms the right of states and local

governments to adopt regulations that are different from or

’ This statement's reference to the development of alternative fuel

vehicles running on “methanol” refers to Cal. Health & Safety Code

§ 40447.5 enacted by the California legislature just three years earlier in

1987. That provision authorized the District to adopt fleet rules requiring

the purchase of vehicles that operate on “methanol or equivalently clean

burning alternative fuel.” See Statement, section IV, infra.

more stringent than federal regulations. Union Elec. Co., 427

U.S. at 263-64. Contrary to the engine manufacturers’

assertion, this general retention of state and local authority is

not restricted to stationary sources. Rather, section 116

plainly states that the Act preempts only “certain State

regulation of moving sources” of pollution (emphasis added).

In fact, there are only three exceptions listed in section 116:

(1) “standards” relating to new motor vehicles preempted by

section 209(a); (2) “standards” respecting aircraft emissions

preempted by 42 U.S.C. § 7573; and (3) certain regulation of

fuel content preempted by 42 U.S.C. § 7545.

Ill. THE ACT’S COMPREHENSIVE SCHEME FOR

ESTABLISHING EMISSIONS LIMITATIONS

FOR THE PRODUCTION OF NEW MOTOR

VEHICLES.

The comprehensive regulatory scheme for the setting and

enforcing of new motor vehicle emission “standards” was

adopted in 1965, when Congress amended the Act by adding

sections 201 et seg.—the “motor vehicle provisions.” Pub. L.

89-271, 79 Stat. 992 et seq. (1965). Section 202 requires

EPA to adopt uniform federal “[e]mission standards for new

motor vehicles or new motor vehicle engines.” Such

“standards” under section 202 apply to manufacturers and

define the maximum amount (typically expressed in grams)

of criteria pollutants that may be emitted from the tailpipe of

each newly-produced motor vehicle, based on the vehicle's

model year, weight, and horsepower. For example, under

section 202(a)(3)(B)(ii), every heavy-duty diesel truck pro-

duced for the 1998 and later model years must emit no more

than 4 grams per brake horsepower hour (“gbh”) of NOx.

Section 203(a)(1) provides for enforcement of these

“standards” by prohibiting “the sale, or the offering for sale,

or the introduction, or delivery for introduction, into

commerce” of a new motor vehicle or engine, unless the

manufacturer first obtains a “certificate of conformity” from

EPA. A manufacturer can only receive a certificate of

conformity once EPA has tested the vehicle to confirm that it

conforms with the applicable emission standard under section

202. 42 U.S.C. § 7525(a\(1). The Act’s scheme for the

adoption and enforcement of federal emission standards

relating to new motor vehicles thus controls the manufacture,

but not the purchase, of motor vehicles. In fact, a “new motor

vehicle” for purposes of these sections is defined as “a motor

vehicle the equitable or legal title to which has never been

transferred to an ultimate purchaser.” 42 U.S.C. § 7550(3).

Section 209(a) correspondingly prohibits states and local

governments from adopting or enforcing new motor vehicle

“standards” that are different from the federal standards, and

also prohibits states from requiring their own certification or

testing procedures to enforce EPA’s standards. Section

209(a) provides:

No State or any political subdivision thereof shall adopt

or attempt to enforce any standard relating to the control

of emissions from new motor vehicles or new motor

vehicle engines subject to this part. No State shall

require certification, inspection, or any other approval

relating to the control of emissions from any new motor

vehicle or new motor vehicle engine as condition

precedent to the initial retail sale, titling (if any), or

registration of such motor vehicle, motor vehicle engine,

or equipment.

Section 209(a) was added in 1967 (as section 208(a)), when

section 202 was reenacted without change. Pub. L. 90-148,

81 Stat. 499, 501. Both provisions were part of the National

Emissions Standards Act. /d., 81 Stat. 499.

The Act’s scheme of requiring EPA to set national

standards, and prohibiting states and local governments from

adopting their own separate standards, is intended to protect

manufacturers from the “chaotic situation” that would result

from having to produce vehicles to comply with 51 different

state and federal emission standards. See Argument, section

11.B.1, infra (citing, e.g., S. Rep. No. 90-403, at 33 (1967);

H.R. Rep. No. 90-728, at 21 (1967)).

Congress carved out one exception to this general

prohibition in 1967 in recognition of California’s uniquely

serious air quality problem. Section 209(b) allows California

to obtain a waiver from EPA to adopt and enforce its own

new motor vehicle standards, as long as its “State standards

will be, in the aggregate, at least as protective of public health

and welfare as applicable Federal standards.”

In 1977, Congress further broadened state authority to

adopt and enforce emission standards for new motor vehicles

by adding section 177 to the Act. Section 177 allows states

with nonattainment areas to adopt California’s stricter

emission standards for any model year, as long as the

standards are “identical to the California standards for which

a waiver has been granted for such a model year.” Section

177 thus represents a compromise between the states’ need

for greater control over motor vehicle pollution to meet the

NAAQS and the manufacturers’ desire to be free from overly

burdensome production mandates. Motor Vehicle Mfrs. Ass'n

v. New York State Dep't of Envtl. Conservation, 17 F.3d 521,

527 (2d Cir. 1994). In 1990, Congress added a second

sentence to section 177, making clear that while states could

adopt California’s emission standards, they could not enforce

those standards through different testing and certification

methods in a way that would require manufacturers to create

a “third vehicle” to sell in that state. See Sen. Comm. On

Public Works, 103d Cong., Ist Sess., A Legislative History of

the Clean Air Act Amendments of 1990, Serial No. 103-38, at

790 (1993) (exhibit | submitted by Sen. Mitchell).

California has exercised its right to adopt motor vehicle

standards under section 209(b) multiple times. One such

example is CARB’s Low-Emission Vehicle (“LEV”)

program, which establishes five categories of light- and

medium-duty low-emission vehicles, including, in ascending

order of stringency, transitional low emission vehicles

(“TLEVs”), low emission vehicles (“LEVs”), ultra-low

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

vehicles (“SULEVs”), and zero emission vehicles (“ZEVs”).

Cal. Code Regs. tit. 13, § 1961(a)(1), (e) (2003). As part of

the LEV program, CARB established for each of these five

categories numerical emission standards for key criteria

pollutants for every class of vehicles (for example, passenger

cars). Every vehicle a manufacturer produces and sells must

be certified as falling within one of these categories. See Cal.

Health & Safety Code §§ 43101, 43102 (West 1996). For

example, to be certified as a LEV passenger car, a vehicle

must emit no more than 3.4 grams per mile (g/mi) of carbon

monoxide (CO) and .0S g/mi of NOx. Cal. Code Regs. tit.

13, § 1961(a)(1) (2003). A manufacturer must also ensure

that the average emissions from the entire fleet of vehicles it

sells do not exceed specified numerical “fleet average”

standards for a given year. See Cal. Code Regs. tit. 13,

§ 1961(b)(1) (2003). Manufacturers have the flexibility to

choose the mix of vehicles they produce, but as the yearly

fleet averages become more stringent, manufacturers are

forced to produce increasingly cleaner vehicles.

IV. THE PURPOSE AND DESIGN OF THE FLEET

RULES.

In 1987 the California legislature granted the District the

authority to require public and commercial fleets of fifteen or

more vehicles operating in the South Coast to purchase

vehicles powered by methanol or other “equivalently clean

burning” alternative fuel (e.g., natural gas, propane, or

electric power). Cal. Health & Safety Code § 40447.5 (West

1996). The legislature enacted section 40447.5 after conclud-

ing that the South Coast would fail to meet its then applicable

1987 deadline for achieving the ozone NAAQS unless more

aggressive action was taken to control pollution in the region.

It stated:

In recent months, the [District] has come under severe

criticism from federal, state~and local officials for not

taking sufficient actions to control and reduce air

pollution. These measures, and others currently pending

in the Legislature, are intended to encourage more

aggressive improvements in air quality and to give the

district authority to implement such improvements.

Cal. Assem. Comm. On Natural Resources, Analysis of Sen.

Bill No. 151 (1987-1988 Reg. Sess.) June 29, 1987, p. 4.

In 2000, the District adopted the six Fleet Rules that are the

subject of this litigation. The Fleet Rules require tht

purchasers operating public, and some private, fleets of

fifteen or more covered vehicles buy cleaner vehicles from

among those already certified by CARB as meeting

California’s standards. J.A. 17, 19-20 (1186.1), J.A. 24, 28-

29 (1191), J.A. 46, 48-49 (1192), J.A. 52, 54-55 (1193), J.A.

58, 61-63 (1194), J.A. 66, 68-69 (1196). Four of the Fleet

Rules require the purchase of only alternative fuel vehicles,

J.A. 19-20 (1186.1), J.A. 48-49 (1192), J.A. 54-55 (1193),

J.A. 68-69 (1196); two of the rules require fleet operators

with certain light- and medium-duty fleets to choose éither

alternative fuel vehicles or cleaner vehicles certified for sale

under California’s LEV standards, J.A. 27 (1191), J.A. 61-63

(1194). All six Fleet Rules target vehicle fleets that operate

in the South Coast and in close proximity to residential and

commercial areas, including transit bus, refuse truck, and

street sweeper fleets.

Because alternative fuel vehicles are less polluting than

diesel vehicles, the District has estimated that the Fleet Rules

will dramatically reduce pollution in the South Coast.

Importantly, the Fleet Rules are intended to substantially

reduce particulate matter and the toxic risk faced by residents

of the South Coast. See, e.g., J.A. 83, J.A. 111.

Moreover, the Fleet Rules work hand in hand with

California’s established emission standards, requiring covered

fleet operators to purchase vehicles only “as [they are]

commercially available.” J.A. 120. For example, under Rule

1191, fleet operators are required to purchase ULEVs only

“when at least 50 percent of the vehicle sales of light- and

medium-duty vehicles . . . are ARB certified as [ULEVs] or

cleaner” to ensure commercial availability. J.A. 92, J.A. 27.

Every one of the rules contains an exception that allows fleet

operators to purchase a diesel or other noncompliant vehicle

in the event that no certified compliant vehicle is com-

mercially available for a particular application. J.A. 21

(1186.1(e)), J.A. 30 (1191(f)(8)), J.A. 50 (1192(e)(2)), J.A. 55

(1193(e)(3)), J.A. 63 (1194(e)(2)), J.A. 69 (1196(e)(1)(C)).

As such, the Fleet Rules never require manufacturers to

produce new motor vehicles. If no manufacturer produces a

ULEV medium-duty vehicle or an alternative fuel truck or

bus, for example, then no fleet operator is required to

purchase one under the Fleet Rules.

Vv. THE PURPOSE AND DESIGN OF CLEAN

VEHICLE PURCHASE INCENTIVE

PROGRAMS.

The Fleet Rules are similar in purpose and effect to

economic incentive programs that CARB and other regulators

have long utilized in their struggle to attain clean air.

Although states and local governments are prohibited under

the Act from setting and enforcing “standards” for new motor

vehicles, it is common for states to adopt incentive pro-

grams to ensure that the cleanest vehicles produced by

manufacturers in accordance with already-established

standards are purchased and operated within their borders.

See, e.g., Cal. Health & Safety Code, §§ 44243-44247,

§§ 44275 et seq. (West 1996) (California Carl Moyer

Program and South Coast Mobile Source Air Pollution

Reduction Review Committee both fund the incremental cost

of cleaner. vehicles); Ga. Code Ann. § 48-7-40.16 (2003)

(Georgia tax credit for the purchase or lease of a zero-

emission or low-emission vehicle); Kan. Stat. Ann. § 79-

32,2001 (2002) (Kansas tax credit for the purchase of an

alternative fuel vehicle); W.Va. Code §§ 11-6D-1—11-6D-8

(2003) (West Virginia tax credit for the purchase of or

conversion to an alternative fuel vehicle).

One such example is the “Lower-Emission School Bus

Program,” which is an incentive program adopted by CARB

in 2001 to “reduce [California] school children’s exposure to

both cancer-causing and smog-forming pollution” and “help

in the effort to attain the state and federal [NAAQS] for PM.”

California Air Resources Board, Lower-Emission School Bus

Program, at 3 (2001), available at http://www.arb.ca.gov/

msprog/schoolbus/finalguide.doc. The program seeks to

“introduce cleaner fuels” into school bus fleets by funding a

minimum of 75% of the cost of cleaner school buses. /d. at

11, 15. Moreover, like Fleet Rules 1191 and 1194, this

incentive program references CARB’s standards as a

convenient method to define which “cleaner” buses are

eligible for funding. /d. at 13.

VI. THE DECISIONS BELOW UPHOLDING THE

FLEET RULES.

Finding that the Fleet Rules are “purchase” rather than

“production” requirements, the district court held that the

rules “do not constitute unlawful standards ‘relating to the

control of emissions’” under section 209(a) of the Act. Pet.

App. 24a. As the court explained:

The Fleet Rules accept as given the existing CARB

vehicle standards; they merely require fleet operators to

choose from among the least polluting of CARB-

certified, available vehicles. The Rules impose no new

—_

emission requirements on manufacturers whatsoever,

and therefore do not run afoul of Congress’s purpose

behind motor vehicle preemption: namely, the protection

of manufacturers against having to build engines in

compliance with a multiplicity of standards.

Id. at 21a. The district court further held that the Fleet Rules

do not set “standards” under section 209(a) because they do

not impose any numerical pollution limits on new motor

vehicles. Jd.

The court also concluded that the clean-fuel vehicle

purchase requirements in section 246 support a finding that

the Fleet Rules are not preempted, stating: “It is not rational

to conclude that the [Act] would authorize purchasing

restrictions on the one hand, and prohibit them, as a

prohibited adoption of a ‘standard,’ on the other.” /d. at 23a.

In its analysis the court also applied the presumption against

preemption, holding that “{t}hroughout our history the several

states have exercised their police powers to protect the health

and safety of their citizens.” /d. at 24a.

The district court dismissed the engine manufacturers’

claim that the opt-in provisions of section 177 of the Act

preempt the Fleet Rules because that section applies only to

“states” wishing to “opt-in” to California’s tougher emission

standards. Pet. App. 25a. The court further found that the

Fleet Rules do not undermine Congress's purpose in enacting

section 177 because the rules do not require production of a

so-called “third vehicle.” /d. at 26a.

The court of appeals affirmed the decision of the district

court “for the reasons stated in its well-reasoned opinion.”

Pet. App. 2a.

SUMMARY OF ARGUMENT

The Fleet Rules are not preempted by section 209(a),

which prohibits the adoption or enforcement of “any standard

relating to the control of emissions from new motor vehicles,”

because the Fleet Rules are not such “standards” within the

meaning of the Act. “Standards” relating to motor vehicles

are production mandates that establish the maximum quantity

of a pollutant that may be emitted from the tailpipe of an

individual motor vehicle before a manufacturer may

introduce that vehicle into the stream of commerce. The

Fleet Rules do not establish any such limits. Nor do they

impose any obligation on manufacturers.

I. Although section 209(a) does not define the term

“standard,” Congress plainly meant that term to have the

same meaning in section 209(a) (which preempts “state

standards”) as in section 202 (which requires EPA to adopt

uniform federal “emission standards for new motor vehicles

or new motor vehicle engines”). Section 209(a) was adopted

and section 202 was reenacted contemporaneously as part of

the National Emission Standards Act. Title II of Pub. L. 90-

148, 81 Stat. 485 et seg. (1967). The weakness in the position

of the engine manufacturers and the United States is most

clearly illustrated by their failure to look to the Act itself to

determine what Congress meant by a “standard relating to the

control of emissions from new motor vehicles.” They instead

scour dictionaries in search of an overly broad definition of

the term “standard,” while ignoring the best guidance con-

cerning Congress’s meaning.

Section 202 makes clear that motor vehicle emission

“standards” are production mandates that apply solely to

manufacturers. In fact, while section 202 repeatedly uses the

terms “manufacture,” “manufacturer,” or “manufactured,” the

term “purchaser” is not used once. Section 202 further makes

clear that “standards” establish numeric limits on individual

pollutants that may be emitted from the tailpipe of a new

motor vehicle, which “reflect the greatest degree of emission

reduction achievable through the application of technology,”

section 202(a)(3)(A). For example, one provision in section

202(a)(3)(B)(ii) directs EPA to issue regulations governing

NOx emissions from heavy-duty trucks produced after 1997

that “contain standards which provide that such emissions

may not exceed 4.0 grams per brake horsepower hour (gbh).”

Every other provision in section 202—and there are many—

similarly establishes as a “standard” the baseline limit on the

amount of a pollutant that may be emitted from the tailpipe of

each new vehicle produced, expressed in “grams per brake

horsepower hour” or something similar.

Section 203 of the Act further makes clear that the

“standards” established in section 202 are prerequisites with

which manufacturers must comply before they may introduce

a new motor vehicle into commerce anywhere in the United

States. Section 203 explicitly prohibits “the sale, or the

offering for sale, or the introduction, or delivery for

introduction, into commerce” by a manufacturer of a vehicle

that fails to comply with the applicable federal standard, but

notably, not the purchase of such a vehicle.

Unlike the “standards” established by section 202, the Fleet

Rules do not establish or impose on manufacturers numeric

production mandates. The Fleet Rules require only that

purchasers operating fleets of fifteen or more vehicles buy

cleaner vehicles from among those already certified as

complying with the relevant emission standards. The Fleet

Rules also do not regulate or require the production of motor

vehicles, nor must a manufacturer comply with the Fleet

Rules before introducing a vehicle into the stream of

commerce. To the contrary, none of the Fleet Rules requires

a fleet operator to purchase an alternative fuel or other

compliant vehicle if one is not already “commercially

available” for a particular application. Accordingly, the Fleet

Rules do not prevent manufacturers from continuing to

produce any mix of vehicles they choose—the rules merely

provide a ready market for cleaner vehicles, and thus, an

incentive for individual manufacturers to produce them.

In the parlance of the Act, the Fleet Rules are

“requirements” rather than “standards.” Three different

provisions in the Act draw that distinction—sections 116,

209(e), and 246—and the D.C. Circuit has recognized that

Congress clearly distinguished between “standards” and

“requirements” in the Act. Engine Mfrs. Ass'n v. EPA, 88

F.3d 1075, 1093 (D.C. Cir. 1996).

Consideration of section 246 confirms that the Fleet Rules

are not preempted “standards” under section 209(a). That

provision requires specified nonattainment areas to adopt

fleet purchase rules for certain vehicles. If Congress had

thought that fleet rules would otherwise be preempted by

section 209(a), it would have included the phrase

“notwithstanding section 209(a)” in section 246—as it did

elsewhere in the Act, including in section 177, which

authorizes other states to adopt California’s emissions

standards “notwithstanding section 209(a).” Congress added

no such clause to section 246. Rather, as the district court

concluded, Congress thought that fleet rules were entirely

consistent with the Act—that is why Congress mandated the

adoption of fleet rules in certain circumstances.

The presumption against preemption also counsels against

adoption of the overly broad reading of “standards” advanced

by the engine manufacturers. This Court stated in 1960 that

“the problem of air pollution is peculiarly a matter of state

and local concern.” Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440, 445-46 (1960). Most states had air

quality regulations in place before Congress enacted the Act,

and many had laws focusing narrowly on pollution caused by

motor vehicle emissions. Therefore, this is a field of

traditional state concern, and the presumption that Congress

did not intend to preempt applies. That is reinforced by the

savings clause in section 116, which makes clear that

Congress did not intend to broadly preempt state and local

efforts to reduce air pollution.

II. Consideration of the purposes of the Act and section

209(a) further confirms that the Fleet Rules are not “stand-

ards.” The Clean Air Act, of course, is intended to promote

public health by reducing air pollution. Because motor

vehicles are the dominant source of smog and cancer risk

from air pollution in the South Coast, the Fleet Rules aim to

substantially reduce this pollution by bringing cleaner

vehicles to the region. Moreover, the Act makes clear in

section 101(a)(3) that “air pollution control at its source is the

primary responsibility of States and local governments.” The

South Coast has the worst air quality in the nation and needs

aggressive measures such as the Fleet Rules to attain

compliance with its looming clean air deadlines. It is

undisputed that the Fleet Rules thus advance the purposes of

the Act.

The Fleet Rules are in no way inconsistent with Congress’s

purpose in enaciing section 209(a). As the legislative history

makes clear, section 209(a) is intended to prevent states from

requiring manufacturers to produce “a ‘third vehicle’”—that

is, a vehicle that must satisfy emission standards different

than those established by federal or California rules. The

Fleet Rules do not require the production of a “third vehicle.”

Rather, they only require certain fleet operators to purchase

vehicles from among those already certified for sale in

California. Like incentive programs promoting the purchase

of cleaner vehicles that the United States acknowledges are in

compliance with the Act, the Fleet Rules are not preempted.

ARGUMENT

I. CONGRESS DID NOT INTEND TO PREEMPT

STATE AND LOCAL VEHICLE PURCHASE

REQUIREMENTS SUCH AS THE DISTRICT’S

FLEET RULES.

This Court has repeatedly emphasized the “cardinal rule”

of statutory construction “that a statute is to be read as whole,

since the meaning of statutory language, plain or not, depends

on context.” King v. St. Vincent's Hosp., 502 U.S. 215, 221

(1991) (citation omitted); Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997) (“The plainness or ambiguity of statutory

language is determined by reference to the language itself, the

specific context in which that language is used, and the

broader context of the statute as a whole”). “As Judge

Learned Hand so eloquently noted: ‘Words are not pebbles in

alien juxtaposition; they have only a communal existence;

and not only does the meaning of each interpenetrate the

other, but all in their aggregate take their purport from the

setting in which they are used.’” Shell Oil Co. v. lowa Dep't

of Revenue, 488 U.S. 19, 25 n.6 (1988) (quoting NLRB v.

Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941)).

Although the engine manufacturers suggest otherwise, Pet.

Br. 21, this basic tenet of statutory construction applies to an

express preemption provision. In /Jowa Dep't of Revenue, 488

U.S. at 24-25, for example, as part of its analysis of the scope

of an express preemption clause, this Court emphasized that

“the meaning of the words depends on their context.”

Similarly, in Sprietsma v. Mercury Marine, 537 U.S. 51,

62-64 (2002), on which the engine manufacturers rely, this

Court considered the statutory context to find that an express

clause prohibiting the application of a state or local “law or

regulation” did not extend to common law tort claims.

It is particularly important to consider the context in which

a term is used where the term at issue “can have more than

one meaning.” See, e.g., Whitman v. American Trucking

Ass'n, 531 U.S. 457, 466 (2001). That is the case here, where

the engine manufacturers and the United States proffer broad

definitions of the term “standard” culled from selected

dictionary definitions and Respondents urge a more precise

meaning based on the context of the Act. As we discuss

below, examining the term “standards” in the context of the

motor vehicle provisions of the Act shows that Congress

intended “standards” in section 209(a) to mean numeric

production mandates imposed on manufacturers.

A. Under The Clean Air Act, A “Standard” Is A

Numerical Production Mandate Imposed On

Manufacturers.

This Court has held that “[t}he interrelationship and close

proximity of . . . provisions of . . . [a] statute ‘presents a

classic case for application of the “normal rule of statutory

construction that identical words used in different parts of the

same act are intended to have the same meaning.””” Desert

Palace, Inc. v. Costa, 123 §. Ct. 2148, 2155 (2003) (quoting

Commissioner v. Lundy, 516 U.S. 235, 250 (1996)). Section

209 is an integral part of the motor vehicle provisions of the

Act, sections 202-209, 214-219, which set forth the Act’s

comprehensive scheme for the setting and enforcement of

uniform, federal emission “standards.” How the term

“standard” is used in this broader scheme should inform this

Court’s interpretation of that same term in section 209(a).°

* As an initial matter, the plain language of section 209(a), by itself,

demonstrates that the term “standards” cannot include all regulations

“relating to the control of emissions from new motor vehicles,” as the

engine manufacturers claim, Pet. Br. 23. If “standards” were that broad,

then the second sentence of section 209%(a) (which the engine

manufacturers concede does not apply to the District, Pet. Br. 28)

prohibiting a State from adopting certification, inspection, and other such

approvals “relating to the control of emissions from any new motor

vehicle” would be rendered superfluous.

1. Section 202 makes clear that a “standard” imposes a

numerical tailpipe limit on a manufacturer. Section 202 of

the Act, entitled “[e}mission standards for new motor vehicles

or new motor vehicle engines,” governs the adoption of

federal emission “standards” by EPA. As the court in

American Automobile Mfrs. Ass'n v. Commissioner found,

both the text and the legislative history of the Act confirm

that “it is unlikely that Congress intended the term ‘standards’

to have a different meaning when referring to state standards

as compared with federal standards.” 998 F.Supp. 10, 22

(D. Mass.), aff d, 208 F.3d 1 (1st Cir. 1997). Further, section

20%(b) allows a waiver of the preemption provision for

California only if “the state standards will be at least as

protective of public health and welfare as applicable federal

standards.” Clearly Congress intended that state and federal

“standards” must refer to the same types of regulations, or

this provision would have no meaning.

Emission standards under section 202 are established on a

pollutant-by-pollutant basis for each “class” of motor vehicle,

as defined by the vehicle’s model year, weight, horsepower,

or other relevant factors. Such emission standards are

different from the purchase requirements of the Fleet Rules in

three critical respects.

First, “standards” under section 202 are production

mandates that apply solely to manufacturers. Section 202

consistently defines standards as applying to the manufacture

of motor vehicles. See, e.g., 42 U.S.C. § 7521(b)(1)(A)

(“[RJegulations'. . . applicable to emissions of carbon

monoxide and hydrocarbons from light-duty vehicles and

engines manufactured during model years 1977 through 1979

shall contain standards . . . [RJegulations . . . applicable to

emissions of hydrocarbons from light-duty vehicles and

engines manufactured during or after model year 1980 shall

contain standards”) (emphasis added). Standards apply by

“model year,” which is defined in section 202(b)(3)(A)(i) as

ie ee

“the manufacturer's annual production period” (emphasis

added). Further, the burden of compliance with “standards”

falls squarely on manufacturers. For example, section

202(b)(1)(B)(i) allows EPA to impose an alternative standard

where “the ability of [a] manufacturer to meet emission

standards . . . was, and is, primarily dependent upon

technology developed by other manufacturers” and other

factors are met.* The remaining provisions of section 202 all

are aimed at manufacturers. Notably, not one applies to

purchasers of new motor vehicles.

Second, the term “standard” is used in section 202 solely in

reference to numerical limits on tailpipe emissions. For

example, section 202(a)(3)(B)(ii) provides that “[e}ffective

for the model year 1998 and thereafter, the [EPA] regulations

. .. 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).” Similarly,

section 202(b)(1)(A) states that the “regulations . . .

applicable to emissions of carbon monoxide and hydro-

carbons from light-duty vehicles and engines manufactured

during model years 1977 through 1979 shall contain

standards which provide that such emissions . . . may not

exceed 1.5 grams per vehicle mile . . . and 15.0 grams per

vehicle mile,” respectively. See also, e.g., 42 U.S.C.

§ 7521(b)(1)(A), (B). Moreover, section 202(b)(1)(C)

explicitly refers to the “numerical emission standards

specified” in other subsections of 202.

* See also, e.g., 42 U.S.C. § 7521(b)(3) (“{uJpon the petition of any

manufacturer” EPA “may waive the standard . . . for any class or category

of light-duty vehicles or engines manufactured by such manufacturer’);

42 U.S.C. § 7521(b\1)(A), (B) (“assuring that vehicles and engines

manufactured before the beginning of a model year were not

manufactured for the purposes of circumventing the effective date of a

standard”).

As the D.C. Circuit has correctly concluded, “the word

‘standards’ connotes a numerical value setting the

quantitative level of permitted emissions of pollutants by a

new motor vehicle.” Motor & Equip. Mfrs. Ass'n, 627 F.2d

at 1093. In fact, in so holding, the court adopted EPA's

interpretation of standards as numerical limits on tailpipe

emissions. /d. The court rejected the industry’s argument

“that a ‘standard’ refers to any criterion with which the

manufacturers must comply.” /d. at 1112. The D.C. Circuit

also found that the legislative history supported this

interpretation: “The Senate Report on the Air Quality Act of

1967 [Clean Air Act], discussing the preemption provision,

mentions ‘standards’ for hydrocarbons, nitrogen oxides, and

carbon monoxide in obvious reference to the numerical

limitations on those pollutants.” /d. (citing S. Rep. No. 90-

403 at 32 (1967); H.R. Rep. No. 95-294 at 302 (1977)).°

The United States relies on section 202(g) to argue that

“standards” are not limited to quantitative tailpipe emissions

because that section requires EPA to adopt standards that

“phase[] in new emissions criteria.” U.S. Br. 15 n.3. But the

“emissions criteria” referenced in 202(g) unmistakably are

numerical tailpipe emission limitations for individual

vehicles. Table G in 202(g), entitled “Emission Standards

For NMHC [non-methane hydrocarbons], CO [carbon

monoxide], and NOx” from light-duty cars and trucks, sets

forth these numerical tailpipe emission limitations in grams

per mile. Further, section 202(b)(1)(C) explicitly refers to the

“numerical emission standards specified in subsection[]

... (g).”. The fact that section 202(g) directs EPA to phase in

these new emission standards over three years merely

* As the United States notes, U.S. Br. 14, the D.C. Circuit also

concluded that section 302(k)’s definition of “emissions standards,” 42

U.S.C. § 7602(k), relates only to “stationary sources,” Motor & Equip.

Mfrs. Ass'n, 627 F.2d at 1112 0.35.

reinforces the fact that a “standard” places a production

burden on manufacturers.

Third, a “standard” under section 202 sets a new, baseline

level of emissions that manufacturers must meet, instead of

merely referencing existing limits as do the Fleet Rules. In

fact, under section 202(a)(2), a standard does not take effect

until “after such period as the Administrator finds necessary

to permit the development and application of the requisite

technology” to meet it.

2. Sections 203, 206, and 216 confirm that a “standard”

establishes a production requirement with which manufactur-

ers must comply before distributing a new motor vehicle.

Together with section 202, sections 203, 206, and 216 estab-

lish that the Act’s scheme for the setting and enforcing of

“emission standards” for “new motor vehicles” places the

burden of compliance solely and squarely on manufacturers,

not purchasers. Initially, a “new motor vehicle” is defined

under section 216(3) as “a motor vehicle the equitable or

legal title to which has never been transferred to an ultimate

purchaser.” 42 U.S.C. § 7550(3). Moreover, section

203(a)(1) of the Act (“prohibited acts”) prohibits a manu-

facturer from “the sale, or the offering for sale, or the intro-

duction, or delivery for introduction, into commerce” of a

new motor vehicle unless it is covered by “a certificate of

conformity.” A manufacturer may receive such a “certificate

of conformity” for a new motor vehicle or engine only after

EPA tests it to ensure it meets the applicable federal standards

set forth in section 202. 42 U.S.C. § 7525(a)(1). Thus, sec-

tions 203 and 206 enforce federal “standards” by prohibiting

manufacturers from selling any new motor vehicle that does

not meet those standards. Notably, neither sections 203 and

206, nor any other section of the motor vehicle provisions of

the Act, regulate the purchase of new motor vehicles.

3. In section 209(a), Congress preempted “standards,”

not “requirements.” As the D.C, Circuit has found, Congress

purposefully distinguished between “standards” and

“requirements” in section 209. Engine Mfrs. Ass'n, 88 F.3d

at 1093. Specifically, while section 209(a) exempts only

“standards,” section 209(e)—addressing pollution from

“nonroad vehicles’—preempts “any standard or other

requirement relating to the control of emissions” (emphasis

added). Likewise, section 246 of the Act—which mandates

fleet purchase requirements for certain nonattainment areas—

also distinguishes between “standards” and “requirements.”

Section 246(b) describes the percentage of all new covered

fleet vehicles that must be purchased by fleet operators in a

given year as the “clean fuel vehicle phase-in requirements

for fleets” (emphasis added). By contrast, section 246(c)

refers to “the standards applicable under section 7583”

(emphasis added), in obvious reference to the numerical

limits on tailpipe emissions that define a “clean-fuel vehicle,”

such as the light-duty truck “standards” of 3.4 gpm of CO and

0.2 gpm of NOx, 42 U.S.C. § 7583(a)(2).

Similarly, in section 116 Congress separately preserves

state and local authority to adopt “(1) any standard or

limitation” and “(2) any requirement.” Because section

209(a) preempts only “standards” relating to the control of

motor vehicle emissions, section 116 preserves the ability of

state and local governments to adopt “any requirement”

relating to the control of emissions.°

* The second sentence of section 209(a) also prohibits a “State” from

imposing a narrow list of requirements, including certification, inspection

or other similar approvals as a condition precedent to the initial retail sale,

titling or registration of a new motor vehicle. The engine manufacturers

concede that this provision does not apply to the District, because it

applies solely to “States.” Pet. Br. 28. But in any event, as the engine

manufacturers also correctly state, this provision plainly is intended to

prevent states from circumventing the prohibition on “standards” in the

first sentence of 209%a) by “designing tests and certification and other

approval procedures that would have undermined or changed” the federal

4. Neither the engine manufacturers nor the United States

has articulated a plausible alternative definition of the term

“standard.” Both the engine manufacturers and the United

States rely on a multitude of generic and mostly irrelevant

dictionary and other definitions of the word “standard.” The

United States, for example, quotes from the Black’s Law

Dictionary’s definition of “standard” as a “measure or rule

applicable in legal cases such as the ‘standard of Care’ in tort

actions.” U.S. Br. 14. The engine manufacturers and the

United States make a jump from these definitions to conclude

that the meaning of “standard” is so broad that it must

encompass purchase requirements. Further, both use words

gleaned from these definitions, father then the words of

section 209(a) itself and the motor vehicle provisions of the

Act, to make unsubstantiated claims throughout their briefs

that the Fleet Rules are preempted because they are based on

“emissions characteristics,” Pet. Br. 25, or set “emission-

related criteria,” U.S. Br. 12, “emission control require-

ments,” id. at 21, or “regulatory requirements,” id. at 25.

In so doing, they ignore the well-established jurisprudence

of this Court that, where a term has more than one possible

meaning, courts must look to the context in which it is found.

See, e.g., Whitman, 531 U.S. at 466. The United States

purports to acknowledge that the meaning of the word

“standard” in the Act must “conform[] to the structure and

purpose of the provision in which it is used.” U.S. Br. 14.

Yet inexplicably, it presents only plainly irrelevant uses of the

word “standard” in the Act, while conspicuously avoiding the

use of “standard” in the context of the motor vehicle emission

provisions of the Act.

or California standards. Pet. . 29. As discussed below, the Fleet Rules

do not contain any such approval procedures, and instead, require the

purchase of vehicles already tested and certified by CARB as meeting

CARB’s standards.

The engine manufacturers and the United States instead

primarily focus on words in section 209(a) other than

“standards,” including “relating to” and “any,” in an effort to

expand the meaning of the term “standards” unreasonably.

First, both mistakenly rely on cases defining the scope of

preemption under the Employee Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. § 1144(a), and the Airline

Deregulation Act (“ADA”), formally at 49 U.S.C. app.

§ 1305(a)(1), to claim that the phrase “relating to” in section

209(a) somehow broadens the scope of preemption beyond

“standards.” But while Congress expressly limited section

209%(a) preemption to “standards,” the cases cited by the

engine manufacturers and the United States involved

preemption language under ERISA and the ADA that more

expansively prohibit “any and all state laws” and “any law,

rule, regulation, standard, or other provision,” respectively,

that “relate to” the preempted subject matter. See Egelhoff v.

Egelhoff, 532 U.S. 141, 146 (2001) (ERISA); California

Division of Labor Standards Enforcement v. Dillingham

Const., N.A., 519 U.S. 316, 335 (1997) (ERISA); American

Airlines v. Wolens, 513 U.S. 219, 234-35 (1995) (ADA); New

York State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 655 (1995) (ERISA);

District of Columbia v. Greater Washington Bd. of Trade,

506 U.S. 125, 127-28 (1992) (ERISA); Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383 (1992) (ADA).’

In all but one of the cases cited by the engine

manufacturers and the United States, there was no question

that the regulation at issue was a “state law” or a “law, rule,

’ Petitioners also cite to Barnett Bank of Marion County v. Nelson, 517

U.S. 25 (1996), which analyzed the McCarran-Ferguson Act’s “special

. . . anti-preemption provision” providing that “No act of Congress shall

be construed to invalidate, impair, or supersede any law enacted by any

State for the purpose of regulating the business of insurance.” 15 U.S.C.

§ 1012(b) (emphasis added).

regulation, standard, or other provision.” Only in Wolens did

this Court focus on whether the asserted claims for breach of

contract constituted enactment or enforcement of a “law, rule,

regulation, standard, or other provision having the force and

effect of law” under the ADA. Wolens, 513 U.S. at 226-29.

The Court held that these claims were not preempted because

they enforced “privately ordered obligations,” and thus did

not fall within the scope of preemption. /d. at 228-29.

Notably, because the Court reached this conclusion, it did not

consider whether the claims “relat[ed] to . . . rates, routes, or

services.” Jd. at 226. The Court’s inquiry here similarly

should begin and end with the conclusion that the Fleet Rules

are not “standards” under section 209(a). The words “relating

to” do not expand the scope of preemption beyond

“standards”; they merely define what type of “standards”

Congress intended to preempt, that is, those “relating to the

control of emissions from new motor vehicles.”

The engine manufacturers (but not the United States) next

misstate the holdings of several cases to claim that the Court

has “interpret(ed] Congress’s use of the word ‘any’ to

indicate that there was ‘no limitation, apart from that of

reasonableness,’ upon [the] statute’s applicability.” Pet. Br.

24 (emphasis addeJ). As illustrated by the very cases they

rely on, however, “any” is a term used solely to qualify what

follows. See United States v. James, 478 U.S. 597, 604-05

(1986) (Congress’s use of the words “any” damages and

“liability of any kind” in immunity provision demonstrated

that United States was protected from personal, as well as

propeity, damage claims); Shea v. Vialpando, 416 U.S. 251,

260 (1974) (where the term “expenses” was unambiguous,

the phrase “any expense” could be interpreted as “no

limitation, apart from that of reasonableness, may be placed

upon the recognition of expenses”) (emphasis added); see also

Harrison v. PPG Indus., Inc., 446 U.S. 578, 586, 588-89

(1980) (the phrase “any other final action” was not limited to

final actions similar to those enumerated in the preceding

provisions of the statute, as respondents had argued). Thus,

while section 209(a) does indeed preempt “any” standard

relating to the control of emissions from new motor vehicles,

this Court must first find that the Fleet Rules establish such a

“standard.” The Fleet Rules do not.

B. The Fleet Rules Are Not “Standards” Under

Section 209(a).

The Fleet Rules do not set “standard[s] relating to the

control of emissions from new motor vehicles” as that phrase

is used in the motor vehicle provisions of the Act. First, the

Fleet Rules do not impose a production mandate—or any

obligations—on manufacturers. In California, it is CARB

that adopts and enforces new motor vehicle emission

- “standards” pursuant to its authority under section 209(b) of

the Act. Cal. Health & Safety Code § 43804 (West 1996).

Manufacturers must comply with CARB’s standards, not the

Fleet Rules, before they can make a vehicle available for sale

in the state. If a manufacturer wishes to sell a passenger

vehicle in California and call it a “low-emission vehicle,” for

example, under CARB’s LEV standards, the manufacturer

must build that vehicle to emit no more than 3.4 g/mi of CO

and .05 g/mi of smog-forming NOx. Cal. Code Regs. tit. 13,

§ 1961(a)(1) (2003). Moreover, it is the “fleet average”

requirements established by CARB—which become increas-

ingly stringent over time—that will require manufacturers

to produce a greater number of ULEVs and SULEVs in

the future.

By contrast, the purchase requirements of the Fleet Rules

are triggered by the commercial availability of CARB-

certified motor vehicles. Under Rule 1191, for example,

public fleet operators will be required to purchase ULEVs

only “when at least 50 percent of the vehicle sales of light-

and medium-duty vehicles . . . are ARB certified as [ULEVs]

or cleaner.” J.A. 92. In fact, all six Fleet Rules contain an

exception that allows a purchaser to buy a diesel (or other

noncompliant) vehicle in the event no compliant vehicle is

“commercially available” for a particular application. J.A. 21

(1186.1(e)), J.A. 30 (1191(f)(8)), J.A. 50 (1192(e)(2)), J.A. 55

(1193(e)(3)), J.A. 63 (1194(e)(2)), J.A. 69 (1196(e)). As

such, the Fleet Rules work in complete harmony with

CARB’s standards. Manufacturers remain free to produce

any mix of vehicles they choose in compliance with CARB’s

standards, and fleet operators subject to the Fleet Rules are

required only to purchase the cleanest vehicles that are

commercially available.

Further, as the district court correctly held, the Fleet Rules

do not “impos[e] any numerical control on new vehicles”

before they are distributed by manufacturers. Pet. App. 21a.

Four of the Fleet Rules define cleaner vehicles only by

reference to the type of fuel they use (requiring the purchase

of vehicles that run on an alternative fuel. such as natural

gas), rather than by-a numerical emission limitation expressed

in grams per brake horsepower hour, or something similar;

two of the rules define cleaner vehicles solely by reference to

their fuel type or the standards already established and

enforced by CARB. See Statement, section IV, supra. Rule

1194, for example, provides that “all new purchases or leases

of passenger cars or medium-duty vehicles used to pick up

passengers at commercial airport terminals shall be a vehicle

that has been certified by CARB that meets the ULEV,

SULEV, or ZEV emission standards.” J:A. 61. As such,

these rules do not “adopt” or “enforce” any standards, but

rather, like many incentive programs, they merely define

cleaner vehicles by reference to CARB’s established

standards.

C. Section 246 of the Act, Which Mandates Fleet

Rules In Certain Circumstances, Further

Confirms That “Standards” Under Section

20%a) Do Not Include Fleet Purchase

Requirements.

Congress’s addition of section 246 to the Act in 1990

further buttresses the conclusion that “standard[s] relating to

the control of emissions from new motor vehicles” in section

209(a) do not include clean-fuel vehicle purchase require-

ments such as the Fleet Rules. Section 246 requires states

containing certain nonattainment areas for ozone or carbon

monoxide to adopt a “clean-fuel vehicle program,” which—

like the Fleet Rules—requires certain fleet operators to

purchase “clean-fuel vehicles” in specified years. Specific-

ally, a clean-fuel vehicle program under section 246(b) must

“contain provisions requiring that at least a specified

percentage of all new covered fleet vehicles in model year

1998 and thereafter purchased by each covered fleet operator

in each covered area shall be clean-fuel vehicles and shall use

clean alternative fuels when operating in the covered area.”

Similar to the Fleet Rules, fleet operators are free to choose

from among available compliant “clean-fuel vehicles” under

section 246(d).

The courts below correctly found that Congress’s adoption

of section 246 makes clear that fleet purchase requirements

are not emission “standards” under section 209(a). As the

district court explained: “It is not rational to conclude that

the [Act] would authorize purchasing restrictions on the one

_ hand, and prohibit them, as a prohibited adoption of a

‘standard,’ on the other.” Pet. App. 23a.

Congress’s intention to exclude fleet purchase require-

ments from the definition of prohibited “standards” under

section 209(a) is evident from its failure to provide in section

246 that fleet purchase requirements mandated by that section

ee ae ee ete ee

are an exception to 209(a) preemption. By contrast, Congress

explicitly provided in sections 209(b) and 177 that it was

authorizing states to adopt regulations that would otherwise

be preempted by section 209(a). In section 209(b), Congress

authorized EPA to “waive application of this section” to

allow California to adopt its own emission standards. And in

section 177, Congress gave other states the right to adopt

California’s tougher emission standards “notwithstanding

section 7543(a) [209(a)] of this title.”

Had Congress thought fleet purchase requirements other

than those mandated under section 246 were preempted by

section 209%a), it would have added the language

“notwithstanding section 209(a)” to the beginning of section

246. It did not. The logical conclusion, therefore, is that

Congress did not consider clean-fuel vehicle purchase

requirements, such as those set out in section 246 and in the

Fleet Rules, to be emission “standards” preempted under

section 209(a). See Desert Palace, Inc., 123 S. Ct. at 2154

(finding that Congress’s failure to define the word

“demonstrates” in Title VII to require a heightened burden of

proof was significant, as Congress has been “unequivocal”

when imposing heightened burdens of proof in other

circumstances). In fact, when Congress enacted section 246

in 1990, it recognized that the California Legislature had just

three years earlier authorized the District to adopt fleet rules,

stating that “California would be proceeding along its own

path, perceived at this time as mandating similar fleet

requirements.” H.R. Rep. No. 101-490, pt. 1, at 177 (1990).

Plainly, Congress did not intend to preempt those rules.

The United States argues that Congress’s adoption of

section 246 shows that it “did not believe that States were

already free to regulate emissions from vehicle fleets however

they chose.” U.S. Br. 26-27. But section 246 does not

authorize states to adopt fleet rutes; it requires states to adopt

fleet rules in certain specified circumstances. The engine

manufacturers contend that the Fleet Rules are not “saved” by

section 246, because the rules do not comply with the

requirements of that section. Pet. Br. 42-44. But

Respondents have never argued that the District adopted the

Fleet Rules pursuant to section 246." Rather, we argue that

the Fleet Rules are not preempted “standards” under the Act,

and thus, do not need to be “saved” by any other provision.”

Section 246 therefore confirms that Congress did not view

purchase requirements as “standards” that would be

preempted by section 209a), instead viewing them as entirely

consistent with the purposes of the Act. In fact, Congress

added section 246 to the Act out of an explicit recognition

that many cities would not meet the national ambient air

quality standards without adopting aggressive measures, such

as requiring the use of clean fuels in motor vehicles. See Sen.

Comm. On Public Works, 103d Cong., Ist Sess., A

Legislative History of the Clean Air Act Amendments of

1990, Serial No. 103-38, at 2572-2573 (1993) (statement of

Rep. Waxman). Likewise, the Fleet Rules are an essential

component of the District’s strategy to address its

overwhelming regional air pollution problem.

D. The Savings Clause And The Presumption

Against Preemption Support The Conclusion

That The Fleet Rules Are Not Preempted.

The Act’s savings clause (section 116) and the general

presumption against preemption further confirm that section

* There are several differences between section 246 and the Fleet

Rules. The most significant difference is that section 246 defines “clean-

fuel” vehicles by applying numerical emissions standards, whereas the

Fleet Rules define clean fuel vehicles according to the fuel they use.

*The engine manufacturers also argue that the Fleet Rules are not

saved by section 209(b) or section 177. Pet. Br. 36-42. As with section

246, the engine manufacturers are responding to straw men rather than to

arguments made by Respondents.

209(a)’s preemption of “standards” should be read narrowly

to preempt only the adoption or enforcement of numeric

production mandates placed on manufacturers.

1. In section 116, Congress retained for states and local

governments broad authority to prevent and control air

pollution. Aside from three very narrowly tailored limitations

set forth in section 116—two of which the engine manu-

facturers agree are not at issue here—Congress provided that

“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.” This savings clause makes clear

Congress’s intent not to preempt broadly, especially in light

of the fact that section 209(a) only preempts “standards,” not

“requirements.” See, e.g., Sprietsma, 537 U.S. at 63.

2. In addition, as this Court has consistently held, a

preemption analysis starts “with the assumption that the

historic police powers of the State were not to be superseded

by the Federal Act ‘unless that was the clear and manifest

purpose of Congress.”” City of Columbus v. Ours Garage &

Wrecker Serv., Inc. 536 U.S. 424, 438 (2002) (quoting

Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996)). As the

parties asserting preemption, the engine manufacturers “bear

the considerable burden of overcoming ‘the starting

presumption that Congress does not intend to supplant state

law.’” De Buono v. NYSA-ILA Med. and Clinical Servs. Fund,

520 U.S. 806, 814 (1997) (quoting Travelers Ins. Co., 514

U.S. at 654).

Contrary to the engine manufacturers’ contention, Pet. Br.

21, the presumption against preemption applies to the

question of the scope of preemption under an express

preemption provision. Medtronic Inc., 518 U.S. at 485;

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992);

De Buono, 520 U.S. at 814; see also Rush Prudential HMO,

Inc., v. Moran, 536 U.S. 355, 365 (2002) (presumption

against preemption helps clarify congressional intent when

there is an express preemption provision and a strong savings

clause); Egelhoff v. Egelhoff, 532 U.S. 141, 151 (2001)

(presumption applies to determination of scope of ERISA’s

express preemption provision).

Further, while it is correct that the presumption against

preemption applies only where a field has been traditionally

occupied by the states, United States v. Locke, 529 U.S. 89,

108 (2000), the field of air quality regulation is precisely such

a field. In contrast to the field of national and international

maritime commerce considered by this Court in Locke, where

there was a history of “significant federal presence,” see

Locke, 529 U.S. at 108 (“Congress [] legislated in the field

from the earliest days of the Republic”), by the time of

adoption of the Act in 1963, forty states had adopted air

pollution control regulations. See Statement, section Il,

supra. Further, by 1963, seven states and the District of

Columbia had adopted legislation specifically addressing

motor vehicle emissions. /d.

By contrast, Congress granted only limited powers to

federal authorities when it first adopted the Act, allowing

them to intervene to abate interstate pollution in specified

circumstances. Train v. NRDC, 421 U.S. at 63-64; Clean Air

Act of 1963, Pub. L. No. 88-206, 77 Stat. 392. While later

amendments broadened the role of the federal government in

the control of motor vehicle emissions, Congress

continuously has emphasized that the primary responsibility

for formulating air pollution control strategies rests with the

states. Train, 421 U.S. at 64; Union Elec. Co., 427 U.S. at

256. As the Congressional Findings set forth in section

101(a)(3) provide: “air pollution prevention . . . and air

pollution control at its source is the primary responsibility of

States and local governments.”

E. Section 177 Does Not Expand The Scope Of

Preemption Under Section 209(a).

There is no support for the engine manufacturers’ argument

that in 1990 Congress expanded the scope of preemption

under section 209(a) to preempt “indirect” prohibitions on the

sale of a new motor vehicle by adding a sentence to section

177 that clarifies that “[nJjothing 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.” See Pet. Br. 30.

If Congress intended section 209%a) to preempt every

regulation that would even indirectly limit the sale of any new

motor vehicle, then it would have stated so explicitly in

section 209(a) itself, not in an ancillary provision like section

177. As this Court has said in the context of the Act,

“Congress, we have held, does not alter the fundamental

details of a regulatory scheme in vague terms or ancillary

provisions—it does not, one might say, hide elephamts in

mouseholes.” Whitman, 531 U.S. at 468.

Further, the legislative history confirms that this 1990

amendment was added as “a mere clarification of current law

and was not intended to provide any preemption of State

authority under section 177.” Sen. Comm. on Public Works,

103rd Cong., Ist Sess., A Legislative History of the Clean Air

Amendments of 1990, Serial No. 103-38, at 790 (1993)

(exhibit | submitted by Sen. Mitchell) (emphasis added).

It is clear that Congress had a narrower purpose in mind in

adding this language to section 177. The Act recognizes that

states could impose stricter standards by procedural rather

than substantive means. That is why the second sentence of

section 209(a) provides that states may not “require

certification, inspection, or any other approval . . . as

condition precedent to the initial retail sale, titling (if any), or

registration of such motor vehicle”—so states cannot enforce

prohibited state “standards” through a “backdoor” certifica-

tion or inspection requirement, The indirect prohibition

language in section 177 similarly clarifies that while states

may adopt the California emissions standards, they may not

enforce the standards through different testing and cer-

tification methods in a manner that would require manu-

facturers to create a “third vehicle” to sell in that state, See

Sen. Comm. On Public Works, 103d Cong., Ist Sess., A

Legislative History of the Clean Air Act Amendments ot

1990, Serial No, 103-38, at 790 (1993) (exhibit | submitted

by Sen, Mitchell) (States must enforce California emission

standards “consistent with California protocols and testing []

to assure that the California cars meet California's standards

when operated in the opt-in State”).

That is precisely why this sentence in section WwW applies

only to “any such State,” meaning any state choosing to opt in

to California's standards, The engine manufacturers effort to

expand the phrase “any such State” to include a “political

subdivision” and to use this clause to modify the scope of

preemption under section 209%a) should be rejected.

i. THE FLEET RULES ADVANCE THE

PURPOSES OF THE CLEAN AIR ACT AND DO

NOT REQUIRE MANUFACTURERS TO

PRODUCE A “THIRD VEHICLE.”

Because a preemption challenge turns on congressional

purpose, as part of its preemption analysis this Court has

consistently examined the purpose of the statute in which the

preemption provision appears. See Sprietsma, 537 U.S, at 70

(finding no preemption where Congress's concern with

uniformity in boat manufacturing, reflected by an express

preemption provision, was outweighed by the statute's

objective of promoting boating safety); Medtronic, Inc., 518

U.S. at 486-90; Travelers Ins. Co., 514 U.S, at 656.

A finding that the Fleet Rules are preempted by section

20%a) would turn the Act on its head by frustrating the

ability of states and local air districts to respond effectively to

their localized air quality problems, while not furthering the

inte of section 209%a) to protect manufacturers from. the

burden of producing a so-called “third vehicle.”

A. Preempting The Fleet Rules Would Frustrate

Congress's Intent That States And Local

Governments Reduce Air Pollution.

The purpose of the Clean Air Act is “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.” 42 U.S.C. § 7401(b)\(1). To

achieve this purpose, Congress repeatedly has made clear in

the Act that the “primary responsibility” for reducing air

pollution and achieving federal air quality standards rests

with States and the local air quality agencies. 42 U.S.C.

§ 7401 (congressional finding that “air pollution prevention

. and air pollution control at its source is the primary

responsibility of States and local governments”); see also

Statement, section I, supra. ;

Congress's emphasis on state and local regulation under

the Act is a matter of “practical necessity,” as “corrective

remedies for air pollution... necessarily must be considered

in the context of localized situations.” Washington v. General

Motor Corp., 406 U.S. 109, 115-16 (1972). As the Court has

explained, “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 conditions trap aerosols and particulates.” '°

The engine manufacturers correctly note that Washington contains a

general statement that “Congress has largely preempted the field with

regard to ‘emissions from new motor vehicles.” Pet. Br. 22. But

Washington did not concem the scope of section 20%a), and this

Id. Congress recognized as early as 1967 that Los Angeles

stands alone as having “unique problems” that led to

especially severe smog conditions. H.R. Rep. No. 90-728, at

22 (1967); 113 Cong. Rec. 30945-46 (1967).

A finding that the Fleet Rules are preempted would

frustrate Congress's clearly expressed purpose by hindering

the ability of the District—and other districts and states

around the country—to reduce regional pollution and meet

federal air quality standards. See Exxon Mobil Corporation v.

EPA, 217 F.3d 1246, 1255 (9th Cir. 2000) (state requirement

for increased oxygen levels in fuel not preempted under

Clean Air Act because increased oxygen levels could be

needed to meet the NAAQS, a “core purpose of the Act”). It

was precisely out of a need to dramatically reduce pollution

in the South Coast region that the California legislature in

1987 enacted Cal. Health & Safety Code § 40447.5 (West

1996) authorizing the District to adopt fleet rules. See Cal.

Assem. Comm. On Natural Resources, Analysis of Sen. Bill

No. 151 (1987-1988 Reg. Sess.) June 29, 1987, p. 4. Without

the Fleet Rules, the South Coast region was not expected to

come into compliance with federal NAAQS for ozone for

“several decades.” /d.

Unfortunately, the region is still in “extreme” nonattain-

ment for ozone, with only seven years remaining before the

deadline for attainment of the NAAQS. See Statement,

section I, supra. And the South Coast remains in “serious”

nonattainment for particulate matter, with only three years

statement was merely dicta. Washington, 406 U.S. at 114. The only issue

in Washington was whether the Court should exercise its original

jurisdiction over a case brought by 18 states against major automobile

manufacturers alleging a conspiracy to restrain the development of

pollution control equipment. /d. at 111. In declining to take jurisdiction,

the Court held that air pollution prevention requires local solutions. /d. at

116. As such, Washington actually supports the decisions of the courts

below to apply the presumption against preemption in this case.

remaining under that looming 2006 deadline. /d. Given that

the majority of air pollution comes from mobile sources, J.A.

80, the engine manufacturers’ reading of the Act would

render the District powerless to achieve these standards on

time, to the detriment of the health of the residents of the

South Coast. Moreover, as discussed below, the engine

manufacturers’ broad reading could preempt a wide range of

traditional state and local pollution control programs, such as

incentive funding programs, needed by States and local

regions to carry out the Act's mandate. These programs

generally, and the Fleet Rules in particular, respond to the

very serious health problems posed by air pollution. ''

EPA recently determined that long-term exposure to diesel

exhaust poses a lung cancer hazard; the California Air

Resources Board listed diesel exhaust particulate as a

“toxic air contaminant;” and the District concluded that “70%

of all [cancer] risk is attributed to diesel particulate

emissions.” See Statement, section I, supra. The Fleet Rules

will dramatically lower diesel exhaust emissions in the South

Coast region, and the resulting health impacts. There can be

no question, therefore, that the Fleet Rules further the

extraordinarily important public health purpose at the core of

the Clean Air Act.

'' The United States suggests to the Court that no harm would befall

the District or, presumably, the residents of the South Coast from a

holding that the Fleet Rules are preempted, since the State of California

can adopt fleet rules pursuant to its authority under section 209(b). U.S.

Br. 28-29. But this is far from an adequate “solution.” Only California

has a right to a waiver under section 209(b)—no other state or local

government, including the District, has that option.

B. Preempting The Fleet Rules Would Not

Further The Purpose Of Section 20%a) To

Protect Manufacturers From Having To

Produce A “Third Vehicle.”

1. Congress's purpose in enacting section 209(a) was to

prohibit standards requiring the production of a “third

vehicle.” In determining Congress’s purpose in enacting a

preemption provision, this Court has looked to the legislative

history of the provision. See Ours Garage & Wrecker Serv.,

Inc. 536 U.S. at 440-42; Medtronic, Inc, 518 U.S. at 490-91.

The text and legislative history of the Act makes clear that

Congress intended to preempt state emission standards (other

than California’s) to protect manufacturers from having to

produce vehicles to meet multiple emissions standards. As

the Senate Report cited by the engine manufacturers, Pet. Br.

4, and the United States, U.S. Br. 19-20, provides: “The auto

industry conversely was adamant that the nature of their

manufacturing mechanism required a single national standard

in order to eliminate undue economic strain on the industry.”

S. Rep. No. 90-403, at 33 (1967) (emphasis added).

In response to this concern, Congress allowed for only one

variation from the federal standard in the form of a waiver for

California. The Senate Report provides further: “The

industry, confronted with only one potential variation, will be

able to minimize economic disruption and therefore provide

emissions control systems at lower costs to the people of the

Nation.” /d. While section 177 allows states to adopt the

California standards, they must be identical to those

standards. As the Conference Report on the 1990 Amend-

ments to the Act states, section 177 thus prevents states “from

imposing different emission requirements on new vehicles

and engines that would place an undue burden on manu-

facturers by requiring them to produce materially different

new vehicles,” the so-called “third vehicle.” Sen. Comm, On

—

Public Works, 103d Cong.. Ist Sess., A Legislative History of

the Clean Air Act Amendments of 1990, Serial No. 103-38, at

1022 (1993).

Thus, under section 20%a) and the opt-in provision in

section 177, manufacturers will have to produce vehicles to

meet only two standards—the federal and California

standards. While the engine manufacturers cite to the House

Report that states that preemption is “necessary in order to

prevent a chaotic situation from developing in interstate

commerce in new motor vehicles,” Pet. Br. 4, quoting H.R.

Rep. No. 90-728 at 21 (1967), it is precisely the burden of

manufacturing a “third vehicle” that Congress had in mind as

creating a “chaotic situation.”

Contrary to the engine manufacturers’ suggestion, the Fleet

Rules simply do not require the creation of “third,” “fourth,”

“fifth,” and “sixth” vehicles, as they place no production

burdens on manufacturers, either directly or indirectly. Pet.

Br. 31, Rather, the Fleet Rules only require fleet operators to

choose the cleanest vehicles from among those already

produced and certified for sale. Further, under the Fleet

Rules, if no alternative fuel vehicles are certified for sale in

California, then the purchaser may purchase a diesel (or other

noncompliant) vehicle. See Statement, section IV, supra.

Under no circumstances, therefore, do the Fleet Rules require

the production of a “third vehicle.” '

The real “chaos” that the engine manufacturers seek to

avoid is the economic impact on individual manufacturers

Amici AALA contend that the preemption provision was intended to

protect “users”—by which they mean fleet operators—from having to

purchase cleaner vehicles. AALA Br. 22. But that suggestion is premised

entirely on committee reports from 1965—two years before section 209

was adopted, and at a time when the pending bill contained no preemption _

provision. It is clear that sections 20%a) and 177 protect manufacturers

from having to produce a “third vehicle,” but do not protect any alleged

right of fleet operators to buy dirtier vehicles.

from a loss in market share that the Fleet Rules may cause.

Under the Fleet Rules, some manufacturers may face a

reduction in their sales in the region (those that sell fewer

clean vehicles), while others may see an increase in their

sales (those that sell a greater number of clean vehicles). But

nowhere in the text or legislative history of section 209(a) did

Congress express an intention to protect the market share of

an individual manufacturer. Far from it, the fleet purchase

requirements established by section 246 demonstrate that

Congress assumed that nonattainment areas must limit the

market share of manufacturers of dirtier engines in order to

achieve clean air.

Because the Fleet Rules do not require the production of a

“third vehicle,” neither American Automobile Mfrs. Ass'n v.

Cahill, 152 F.3d 196 (2nd Cir. 1998) (“Cahill”), nor Com-

missioner, 208 F.3d 1, supports the engine manufacturers

claim that the Fleet Rules are preempted. Pet. Br. 23, 26.

Both Cahill and Commissioner concerned a state's adoption

of standards pursuant to the opt-in provisions of section 177

of the Act. Unlike the Fleet Rules, the state laws at issue

would have required the production of a “third vehicle

because the states had opted-into the “zero-emission” vehicle

program that California had delayed. Cahill, 152 F.3d at 201.

As the Commissioner court held, “[iJf a production

requirement, such as the ZEV mandate, is not considered part

of the standard itself, then the compliance with a standard . . .

would be disconnected from the obligation to build cars to

meet the standard.” 208 F.3d at 7 (quoting an EPA opinion

letter) (emphasis added). Again, the Fleet Rules impose no

production mandates whatsoever on manufacturers, and so

are not “standards”.'?

'’ Further, neither the Cahill nor Commissioner courts held that all

regulations that “effect a general reduction in emissions are Preempted

“standards” under section 209(a), as the engine manufacturers imply. Pet.

2. Purchase requirements are not production mandates.

The engine manufacturers would have this Court find that

“standards” under section 209(a) include fleet purchase

requirements because, they claim, section 209(a) prohibits

regulations that limit the sale of certified vehicles and “the

sale and purchase of a new motor vehicle are two sides of the

same coin.” Pet. Br. 26. But their basic assumption is

wrong—neither section 209(a) nor the motor vehicle

provisions of the Act provides manufacturers with a

guarantee that they will sell every vehicle certified to federal

or California standards—even the lowest standards. Rather,

as discussed above, section 209(a)- protects manufacturers

only from having to produce a “third vehicle.”

As EPA (noticeably absent from the United States’ brief)

recognized in commenting on section 246, the fundamental

difference between emissions standards and purchase

requirements is that the former, but not the latter, place such a

production requirement on manufacturers:

[I]n adopting [section 246], Congress made a clear

choice between two alternatives: requiring manufactur-

ers to produce and sell [clean fuel vehicles] or creating a

market for [clean fuel vehicles] and for clean alternative

fuels by requiring fleet operators to purchase such

vehicles and operate on such fuels.

63 Fed. Reg. 20103, 20105 (April 23, 1998) (emphasis

added). EPA explained that “Congress intended that the

creation of a market for [clean fuel veh’ sles] would provide

an incentive for vehicle manufacturers to produce and sell

Br. 23 n.3. The Cahill court held only that because the ZEV production

mandate had “no purpose other than to effect a general reduction in

emissions,” it was a “standard relating to the control of emissions from

new motor vehicles” and not an “enforcement procedure.” Cahill, 152

F.3d at 200; see also Commissioner, 208 F.3d. at 7 (“if production

requirements are not standards..., then other states could enact production

requirements that were different from California’s”).

such vehicles.” /d. at 20104 (emphasis added). Thus, as EPA

acknowledged, while Congress preempted manufacturing

mandates requiring the production of a “third vehicle,” such

mandates are very different from ‘ules requiring fleet

operators to purchase cleaner vehicles.

Accordingly, the engine manufacturers’ argument that a

state or local government could circumvent preemption by

“requiring that every vehicle purchased must meet a novel

emission standard,” Pet. Br. 26, is misplaced. As EPA has

made clear, purchase requirements do not mandate the

production of vehicles and so are not “standards.”"*

Moreover, this argument has no relevance to the Fleet Rules

at issue here, which only require the purchase of vehicles that

meet the California emission standards, not some “novel”

standard adopted by the District.

3. The Fleet Rules are indistinguishable from the incentive

programs the United States acknowledges are not preempted.

The arguments by the engine manufacturers and United

States, taken to their logical conclusion, would preempt state

and local incentive programs designed to create markets for

cleaner vehicles by providing tax incentives or otherwise

offsetting the purchase price of a cleaner vehicle. California

and the District, like many other state and local governments,

have long depended on these vital programs to aid efforts to

reduce localized air pollution. It makes no difference, as the

United States argues, U.S. Br. 17 n.4, that incentive programs

do not impose enforceable requirements in contrast to the

'4 Purchase requirements at most could “indirectly” cause the

production of vehicles by creating incentives for manufacturers to produce

cleaner vehicles. This Court has held in other contexts that such

“indirect” impacts do not support preemption. See De Buono, 520 U.S. at

816 (state tax on hospital run by ERISA fund would “have some effect”

on the administration of ERISA plans because of increase in cost of

providing benefits to employees, but this “indirect” effect is not sufficient

to preempt tax).

“requirements” of the Fleet Rules. Neither incentive

programs nor fleet purchase requirements would pass the

engine manufacturers’ proposed test that any program that

‘references’ CARB’s or EPA’s emissions standards, Pet Br.

27-28, or indirectly limits the sale of a vehicle, Pet. Br. 30. is

preempted.

For example, California’s Lower-Emission School Bus

Program, which is aimed at getting children on cleaner buses

by providing 75% of the cost of a new cleaner bus, describes

the vehicles eligible for funding by reference to CARB’s

standards. '° See Statement, section V, supra. So do most

incentive programs. Likewise, incentive programs indirectly

limit the manufacture of dirtier vehicles by creating a market

for cleaner ones. This is particularly true of programs like the

Lower-Emission School Bus Program, which virtually

guarantee the purchase of cleaner vehicles over dirtier ones

by covering close to the full cost of the cleaner bus.'®

* Californi

ifornia has neither sought, nor received, a waiver under section

209(b) for its incentive programs.

‘The United States points to Section 249(f(3), 42 U.S.C

8 758X(£)(3), to suggest that states have limited authority to adopt

incentive programs. U.S. Br. at 18 n.5. That is not so. Section

110(aX2)(A) of the Act, 42 U.S.C. § 7410(a)(2A), broadly allows states

to adopt “economic incentives.” Sections 249(f)(2) and (3) do not purport

to limit that authority, but rather, make clear that while states other than

California may not require manufacturers to produce “clean-fuel

vehicles,” they may include clean-fuel incentive programs in a revised

state implementation plan. Section 249(f)(2) allows states “to provide

incentives for the sale or use” of clean-fuel vehicles, without limitation

And while section 249(f)(3) lists three possible incertive programs this

list is not exclusive — Congress used the words “may include,” not “may

only include.” Finally, section 249(f) is not among the preemption

provisions listed in Section 116 as exceptions to the broad authority

reserved to states and local governments.

In sum, neither purchase requirements like the Fleet Rules

nor purchase incentives like the Lower-Emission School Bus

Program are preempted. Congress has clearly expressed in

the structure and language of the Act that new motor vehicle

“standards” control the “production” but not the “purchase”

of new motor vehicles. Indeed, since neither the Fleet Rules

nor purchase incentive programs have any effect on

manufacturers other than providing an incentive to produce

cleaner vehicles, neither interferes with Congress’s main

purpose in enacting section 209(a)}—to prevent manufacturers

from being required to produce vehicles that must comply

with 51 different state and federal standards. :

CONCLUSION

The judgment of the courts below should be affirmed.

Respectfully submitted,

GAIL RUDERMAN FEUER °

JULIE MASTERS

ZAHIRAH WASHINGTON

NATURAL RESOURCES DEFENSE

COUNCIL

1314 Second Street

Santa Monica, CA 90401

(310) 434-2300

CHRISTOPHER J. WRIGHT

HARRIS, WILTSHIRE & GRANNIS LLP

1200 18th St., N.W.

Washington, DC 20036

202-730-1300

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.