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

{ Supreme Court, U. 8.

FILED

9 AUG 29 2003

No. 02-1343 | OFFICE THE CLERK

In the Supreme Court of the United States

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

PETITIONERS

Vv.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT \

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING REVERSAL

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY BOSSERT CLARK

Deputy Assistant Attorney

General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

GREER S. GOLDMAN

JOHN A. BRYSON

R. JUSTIN SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Section 209(a) of the Clean Air Act prohibits, subject to

certain exceptions, States and their political subdivisions

from adopting “any standard relating to the control of

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

question presented is whether Section 209(a) prohibits a

regional air quality district’s rules requiring that operators

of certain public and private vehicle fleets purchase specified

types of new low-emission vehicles.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

A. The Clean Air Act

B. The California regulatory scheme

C. The SCAQMD Fleet Rules

D. The proceedings below

Summary of argument 10

Argument 12

Section 209 a) of the Clean Air Act preempts the

SCAQMD Fleet Rules 12

A. Section 209(a) prohibits a state or political

subdivision from adopting “any standard

relating to the control of emissions from new

motor vehicles” 13

B. The SCAQMD Fleet Rules are standards

“relating to the control of emissions from

new motor vehicles” 21

TABLE OF AUTHORITIES

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

1120 (S.D.N.¥ >, aff'd, 468 F. 2d 624 (2d Cir. 1972) .......... 18

American Auto. Mfrs. Ass'n v. Cahill, 152 F.3d

196 (2d Cir. 1998) 9, 23, 24

Association of Int'l Auto. Mfrs., Inc. v. Commis-

sioner, 208 F.3d 1 (Ist Cir. 2000) 9, 22, 23, 24

Building & Const. Trades Council of Metro. Dist.

v. Associated Builders & Contractors, 507 US.

218 (1993) 29

California Div. of Labor Standards Enforcement v.

Dillingham Constr., N.A., Inc., 519 U.S. 316

(1997) 16

(IID)

IV

Cases—Continued: Page

California v. Department of the Navy, 624 F 2d

885 (9th Cir. 1980) 18

Crosby v. National Foreian Trade Council, 530

U.S. 363 (2000) — 16

Egelhoff v. Egelhoff, 582 U.S. 141 (2001) . 15, 16, 17

English v. General Elec. Co., 496 U.S. 72 (1990) 12

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

2002) 27

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

530 (1990) 3

Mackey v. Lanier Collection Agency & Serv., Inc.,

486 U.S. 925 (1988) 26

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1966) 28

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

374 (1992) 15, 16, 26, 28

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

1095 (D.C. Cir. 1979), cert. denied, 446 U.S. 952

(1980) 20, 23

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

of Envt’l Conservation, 79 F.3d 1298 (2d Cir.

1996) 4

New York State Conference of Blue Cross & Blue

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

eT 16

Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983 15

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

109 (1972) 16

Whitman v. American Trucking Ass us, 531 US.

457 (2001) 14

Statutes, regulations, and rules:

Act of Dec. 17, 1963, Pub. L. No. 88-206, 77 Stat.

392 2

Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat.

501 2

Clean Air Act, 42 U.S.C. 7401 et Sg passim

V

Statutes, regulations and rules Continued: Page

Tit. I. $§ 101-193, 42 U.S.C. 7401-751 3

Pt. A, F 101-131, 42 U.S.C. 7401-7431:

§§ 101-110, 42 U.S.C. 7401-7410 3

§ 108(f), 42 U.S.C. 7408(f) 5, 18, 19

§ 109,42 U.S.C. 7409 14

§ 110(k)-()), 42 U.S.C. 7410(k)-()) 27

§ 111,42 U.S.C. 7411 14

§ IIe) 2), 42 U.S.C. 741 Ae) 14

§ 116,42 U.S. C. 7416 4, 28

Pt. D, §§ 171-198, 42 U.S.C. 7501-7515 3

§ 177,42 US.C. 7507 4, 10, 20, 26

§ 182,42 U.S.C. 75lla 5

aB), 42 U.S.C. 751la(a\(2\B) .......... 19

§ 182(b)(4), 42 U.S.C. 7511a(b)(4) 5, 19

§ 182(c\3), 42 U.S.C. 7511a(¢X(3) 19

§ 182(c)4)(A), 42 U.S.C. SIA NANA) 5

§ 182(d\(1), 42 U.S.C. 751la(d\(1) 19

§ 182(e)(4), 42 U.S.C. T51la(e)(4) 19

§ 182(g)(4), 42 U.S.C. 751la(g)(4) 5,18

Tit. II. $§ 201-250, 42 U.S.C. 75217590 3,4

Pt. A, 58 201-219, 42 U.S.C. 7521-7554: |

§ 202, 42 U.S.C. 7521 * 16

§ 202(a), 42 U.S.C. 75210) 15, 19

§ 202(aX(1), 42 U.S.C. 75 21caK ) ...ecccccccccceeeees 4,15

§ 202(g), 42 U.S.C. 7521(g) 15, 23

§ 209, 42 U.S.C. 7543 5, 19, 23

§ 209(a), 42 U.S.C. 7543(a) passim

§ 209(b), 42 U.S.C. 7543(b) 2, 4, 6,

10, 12, 19, 21, 22, 29

§ 200(d), 42 U.S.C. 7543(d) 4,5, 11, 18

§ 211(c)4)(A), 42 U.S.C. 754 NANA) . 5, 27

§ 211(m), 42 U.S.C. 7545(m) 27

§ 216(3), 42 U.S.C. 7550(3) 18

Pt. C, $§ 241-250, 42 U.S.C. 7581-7590 . 5, 20, 27

242-245, 42 U.S.C. 7582-7585 5

2410, 42 U.S.C. 75810) 27

VI

Statutes, regulations and rules Continued:

241(5), 42 U.S.C. 75815)

241(6), 42 U.S.C. 7581(6)

241(7), 42 U.S.C. 7581(7)

243, 42 U.S.C. 7583

243(e), 42 U.S.C. 7583(e)

244, 42 U.S.C. 7584

246, 42 U.S.C. 7586

246(a), 42 U.S.C. 7586(a)

246(b), 42 U.S.C. 7586(b)

246(b)-(h), 42 U.S.C. 7586(b)-(h)

246(d), 42 U.S.C. 7586(d)

249, 42 U.S.C. 7589

24%c), 42 U.S.C. 758940)

249(c\(1), 42 U.S.C. 7589(c)(1)

249 )( 2), 42 U.S.C. 75890 (2)

249(f), 42 U.S.C. 7589(f)

249(f (3), 42 U.S.C. 7589(f)(3)

249(f)(4), 42 U.S.C. 7589(f (4)

250(b), 42 U.S.C. 7590(b)

Tit. III, $§ 301-328, 2 U.S.C. 7601-7627

~ § 302(k), 42 U.S.C. 7602(k)

3020, 42 U.S.C. 76020

Tit. IV, $§ 401-402, 42 U.S.C. 7641-7642

Tit. [V-A, §§ 401-416, 42 U.S.C. 7651-765lo ................

Tit. V. $§ 501-507, 42 U.S.C. 7661-7661f

Tit. VI, $§ 601-618, 42 U.S.C. 7671-76719

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685

Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2399

Clean Air Amendments of 1970, Pub. L. No. 91-604,

84 Stat. 1676

Cal. Health & Safety Code § 39003 (West 1996) .................

40 C. F. R. 81.305

Cal. Code Regs. tit. 13 (2003):

§ 1900

oO

K

&

SSS &

88 8 888 5

> *

T T F G G

ow wo woh & w

—

— — —

VII

Regulations and rules Continued: Page

— . 6

§ 19562 25

— 7

9 19568 25

§ 1960.1 7, 25

AQMD Fleet Vehicle Rules (updated May 4, 2001)

<http//www.aqmd.gov/new1/Fleet_Rule_Home.

htm> passim

Rule 1186.1 7, 8, 25

Rule 1186.1(a) 21

Rule 1186.1(d) 22

Rule 1186.1(e) 8

Rule 1191 7, 25

Rule 1191(a) 21

Rule 1191(b) 8

Rule 1191(e) 22

Rule 11910008) 8

~ Rule 1192 8, 25

Rule 1192(a) 21

Rule 1192(d) 22

Rule 1193 8, 25

Rule 1193(a) 21

Rule 1193(d) 22

Rule 1194 8, 25

Rule 1194(a) 21

— — — — 22

Rule 1196 8, 25

Rule 1196(a) 21

Rule 1196(d) 22

Miscellaneous:

Black’s Law Dictionary:

5th ed. 1979 14

7th ed. 1999 13, 14

113 Cong. Rec. (1967):

p. 30,950 20

p. 32,478 20

50 Fed. Reg. 10,606 (1985) 15

58 Fed. Reg. 4166 (1993) 6

VIII

| * 1 In the Supreme Court of the United States

64 Fed. Reg. 46,849 (1999) = 6

65 Fed. Reg. 6698 (2000) 15 No. 02-1343

68 Fed. Reg. 19,811 (2003) 6 ENGINE MANUFACTURERS ASSOCIATION AND

H.R. Rep. No. 728, 90th Cong., Ist Sess. (1967) 19-20 WESTERN STATES PETROLEUM ASSOCIATION,

S. Rep. No. 403, 90th Cong., Ist Sess. (1967) 4, 20 | PETITIONERS

Henry A. Waxman, et al., Cars, Fuels, and Clean

Air: A Legislative History of Title II of the Clean | v.

— * Amendments of 1990, 21 Envt' L. 1947 7 SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT,

Webster s Third New Int'l Dictionary (1993) 13 —

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

The United States, in cooperation with the individual

States, has responsibility for implementing and enforcing the

Clean Air Act, 42 U.S.C. 7401 et seg., which, among other

things, directs the United States Environmental Protection

Agency (EPA) to administer provisions governing emissions

from mobile sources. This case presents the question

whether the Clean Air Act preempts a California regional air

quality district from regulating emissions of new motor

vehicles through rules restricting the types of vehicles that

operators of vehicle fleets may purchase. The United States

owns and operates vehicle fleets that are potentially subject

to the rules at issue in this case. The United States’ pre-

dominant interest in this case, however, arises from its

responsibility to implement the Clean Air Act in accordance

with Congress’s carefully drawn division of federal and state

authority over the regulation of emissions from motor vehi-

(1)

cles. The United States submits that Section 209(a) of the

Clean Air Act preempts the regional air quality district’s

rules because those rules are “standard[s] relating to the

control of emissions from new motor vehicles,” 42 U.S.C.

7543(a), and California has not requested EPA to provide a

waiver of preemption in accordance with Section 209(b), 42

U.S.C. 7543(b).

STATEMENT

Petitioners, the Engine Manufacturers Association and

the Western States Petroleum Association, brought this ac-

tion to enjoin the State of California’s South Coast Air

Quality Management District (SCAQMD) from imple-

menting its “Fleet Rules,” which regulate, on the basis of

emission characteristics, the types of new motor vehicles

that operators of certain vehicle fleets may purchase. Peti-

tioners claim that the Clean Air Act (CAA), 42 U.S.C. 7401 et

seq., prohibits state and local authorities from promulgating

those regulations. On cross-motions for summary judgment,

the United States District Court for the Central District of

California rejected petitioners’ preemption challenge. Pet.

App. 3a-27a. The court of appeals affirmed for the reasons

stated in the district court’s opinion. Id. at la-2a.

A. The Clean Air Act

Congress enacted the Clean Air Act in 1963 to assist state

efforts to control air pollution. See Act of Dec. 17, 1963, Pub.

L. No. 88-206, 77 Stat. 392. Since that time, Congress has

substantially expanded the Act’s scope and the federal gov-

ernment’s role, primarily through significant amendments in

1967, 1970, 1977, and 1990. See Air Quality Act of 1967, Pub.

L. No. 90-148, 81 Stat. 485; Clean Air Amendments of 1970,

Pub. L. No. 91-604, 84 Stat. 1676; Clean Air Act Amend-

ments of 1977, Pub. L. No. 95-95, 91 Stat. 685; Clean Air Act

Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399.

Throughout that evolution, the Clean Air Act has remained a

program of cooperative federalism, under which “the States

and the Federal Government [are] partners in the struggle

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

States, 496 U.S. 530, 532 (1990).

Title I sets out a central part of the Clean Air Act’s regu-

latory framework, which rests on the federal government’s

establishment of “national ambient air quality standards”

(NAAQSs) that are to be achieved, in substantial part,

through each State’s development of a “State implement-

ation plan” (SIP). See CAA §§ 101-110, 42 U.S.C. 7401-7410.

Title I addresses numerous aspects of air pollution control,

including measures and timetables for achieving the

NAAQSs in “non-attainment areas.” See CAA §§ 171-193,

42 U.S.C. 7501-7515. Title II governs control of pollution

from mobile sources, such as motor vehicles. See CAA

§§ 201-250, 42 U.S.C. 7521-7590. The Title II provisions are

the focus of this litigation.’

In the case of each of those Titles, Congress gave careful

attention to the respective roles of the federal and state or

local governments in administering the Clean Air Act. As a

general matter, Congress assigned to EPA significant re-

sponsibilities for administering the Clean Air Act, while

preserving each State’s authority to supplement the Act’s

provisions with additional measures under state law. Con-

gress, however, placed special limits on state authority in the

case of mobile emission sources. Hence, Title I’s general

provision governing “Retention of State authority” recog-

nizes that, while States largely retain the right to adopt or

enforce pollution control measures more stringent than

federal law requires, Title II’s provisions preempt “certain

! The Clean Air Act includes five other titles addressing: general

provisions, including definitions (Tit. III, 42 U.S.C. 7601-7627); noise

pollution (Tit. IV, 42 U.S.C. 7641-7642); acid deposition control (Tit. IV-A,

42 U.S.C. 7651-76510) permits (Tit. V, 42 U.S.C. 7661-7661f); and strato-

spheric ozone protection (Tit. VI, 42 U.S.C. 7671-7671q).

State regulation of moving sources.” CAA § 116, 42 U.S.C.

7416.

Title II’s provisions delineate the division between federal

and state authority over emissions from new motor vehicles.

Section 202(a)(1) specifically directs EPA to establish “stan-

dards applicable to the emission of any air pollutant from any

class or classes of new motor vehicles or new motor vehicle

engines.” 42 U.S.C. 7521(a)(1). Section 209(a) further pro-

vides, in relevant part, that:

No State or any political subdivision thereof shall adopt

or attempt to enforce any standard relating to the con-

trol of emissions from new motor vehicles or new motor

vehicle engines subject to this part.

42 U.S.C. 7543(a).

Section 209(b) authorizes EPA to waive application of that

provision, subject to specific requirements, in the case of

any State which has adopted standards (other than

crankcase emission standards) for the control of emis-

sions from new motor vehicles or new motor vehicle

engines prior to March 30, 1966.

42 U.S.C. 7543(b). The only State that qualifies to seek such

a waiver is California. See Motor Vehicle Mfrs. Ass’n v. New

York State Dep’t of Envt’l Conservation, 79 F.3d 1298, 1302

(2d Cir. 1996); S. Rep. No. 403, 90th Cong., Ist Sess. 33

(1967). Section 177 of the Clean Air Act provides, however,

that States other than California may adopt any standards

that EPA has approved for California, provided that such

state standards are “identical” to those of California and are

enacted two years before they become effective. 42 U.S.C.

7507.

Section 209(d) preserves the ability of States to regulate

motor vehicle use and operation other than by standards

P ˙ de SRR Oe NR hn ee ——

relating to the control of emissions from new vehicles,

stating:

Nothing in this part shall preclude or deny to any State

or political subdivision thereof the right otherwise to

control, regulate or restrict the use, operation, or move-

ment of registered or licensed motor vehicles.

42 U.S.C. 7543(d). Consistent with Section 209(d), Section

108(f) requires that EPA provide state and local gov-

ernments with information on a detailed list of specific types

of “transportation control measures,” 42 U.S.C. 7408(f), and

Section 182 provides additional measures that States may

(or must) put into effect, including “Motor vehicle inspection

and maintenance” programs, e., 42 U.S.C. 751la(b)(4), and

an “economic incentive program,” 42 U.S.C. 7511a(g)(4).

In Sections 241 through 250, added through the 1990

Amendments, Congress established a “clean-fuel vehicle”

program that combines elements of federal and state author-

ity, consistent with the division of authority set out in Sec-

tion 209. See 42 U.S.C. 7581-7590. Congress directed EPA

to issue regulations defining emissions standards for “clean-

fuel vehicles.” CAA §§ 242-245, 42 U.S.C. 7582-7585. Con-

gress in turn directed States that embraced specified non-

attainment areas to develop and submit revisions to their

SIPs establishing clean-fuel fleet programs (CFFPs). CAA

§ 246, 42 U.S.C. 7586. Section 246(b) provides that, under

those state programs, a defined percentage (beginning at

30% and later increasing to 70%) “of all new covered fleet

vehicles in model year 1998 and thereafter * * * shall be

clean-fuel vehicles and shall use clean alternative fuels when

operating in the covered area.” 42 U.S.C. 7586(b). Congress

has authorized States to seek EPA approval of substitute

programs in lieu of the federal clean-fuel vehicle program.

CAA § 182(c)(4)(A), 42 U.S.C. 751la(c)(4)(A). Only four

States that are subject to the CFFP requirement have

6

implemented the program; the others, including California,

have elected to adopt substitute programs. See, e.g., 64 Fed.

Reg. 46,849 (1999). :

B. The California Regulatory Scheme

The State of California has charged the California Air

Resources Board (CARB) with responsibility to administer

that State’s air pollution control programs. Cal. Health &

Safety Code § 39003 (West 1996). CARB has developed a

detailed program of emission controls for new motor

vehicles. See Cal. Code. Regs. tit. 13, §§ 1950 et seg. (2003).

CARB has also applied for and generally received EPA

waivers for particular elements of this program, in accor-

dance with Section 209(a) and (b) of the Clean Air Act, 42

U.S.C. 7543(a) and (b), relieving California from the Clean

Air Act’s prohibition of state standards “relating to the

control of” new motor vehicle emissions. See 68 Fed. Reg.

19,811 (2003); 58 Fed. Reg. 4166 (1993). CARB’s authority to

adopt its program of emission controls has not been disputed

in this proceeding.

CARB has adopted, among its various motor vehicle con-

trols, a light- and medium-duty vehicle program that in-

cludes five tiers of emissions standards for passenger cars,

light-duty trucks, and medium-duty vehicles: (1) transitional

low-emission vehicles, or TLEVs; (2) Low-Emission Vehi-

cles, or LEVs; (3) Ultra-Low-Emission Vehicles, or ULEVs;

2 Congress also directed EPA to establish, as a pilot program, a

federal clean-fuel vehicle program for California that would “demonstrate

the effectiveness of clean-fuel vehicles in controlling air pollution in ozone

nonattainment areas.” CAA § 249, 42 U.S.C. 7589. Section 249%c) directs

EPA to issue regulations requiring manufacturers to produce specified

numbers of clean-fuel vehicles (not necessarily for fleet use) and sell them

in California, 42 U.S.C. 7589(c)(1), and requiring California to adopt pro-

visions making clean alternative fuels available in that State, 42 U.S.C.

7589(c)(2). Other States may participate in this program under specified

conditions, CAA § 249(f), 42 U.S.C. 7589(f), but no State has elected to do

80.

(4) Super Ultra-Low-Emission Vehicles, or SULEVs; and (5)

zero-emission vehicles, or ZEVs. See Pet. App. 13a-14a; Cal.

Code. Regs. tit. 13, § 1960.1 (2003). California has also estab-

lished an Urban Bus Program, which provides that operators

of urban bus fleets must notify CARB whether they intend

to comply through a “diesel path” or through an “alternative-

fuel path,” and defines emissions standards for those

“paths.” See Pet. App. 14a-15a; Cal. Code Regs., tit. 13,

§§ 1956.2 et seg. (2003).

C. The SCAQMD Fleet Rules

The State of California has assigned the South Coast Air

Quality Management District (SCAQMD) responsibility for

controlling air pollution in the Los Angeles area, which is the

only region in the United States that has been designated an

“extreme” nonattainment area under the Clean Air Act. See

40 C.F.R. 81.305. In response to Los Angeles’s extraordi-

nary air pollution problems, the SCAQMD has adopted

extensive control measures, including the AQMD Fleet

Vehicle Rules (updated May 4, 2001) (Fleet Rules) <http://

www.aqmd.gov/news1/Fleet_Rule_Home.htm>. The Fleet

Rules, which SCAQMD adopted in 2000, require that

operators of certain motor vehicle fleets purchase or lease

low-emission vehicles. Six of those rules are at issue here:

„ Rule 1186.1 requires public operators of street

sweeper fleets (and private parties operating under

contract to public entities) to acquire alternative-fuel

vehicles.

„Rule 1191 requires public entities operating fleets of

passenger cars, light-duty trucks, or medium-duty

vehicles to acquire vehicles that meet LEV standards

or that utilize alternative fuel.

„ Rule 1192 requires public transit fleet operators (and

private entities under contract to such operators) to

acquire alternative-fuel heavy-duty vehicles.

» Rule 1193 requires public and private solid waste

collection fleet operators to acquire alternative-fuel

heavy-duty vehicles.

„» Rule 1194 requires public and private operators of

fleets of passenger cars or medium-duty vehicles that

transport passengers to and from airports (including

taxis, limousines, and shuttles) to acquire specified

percentages of ULEVs, SULEVs or ZEVs. Heavy-

duty vehicles acquired by operators of airport trans-

port fleets must utilize alternative fuel.

„» Rule 1196 requires public entities operating fleets of

heavy-duty vehicles to acquire vehicles that utilize

alternative fuel, dual fuel, or gasoline.

Pet. App. 15a-19a; J.A. 16-74. Those rules generally apply

only to entities operating fleets of 15 or more vehicles. See

ibid. Several of the rules provide for exceptions if the

required types of vehicles are unavailable. See Pet. App.

18a-19a; Rules 1186.1(e), 1191(f)(8) (J.A. 21, 30). Some of the

rules also have phase-in periods or other provisions that

mitigate their application. Rule 1186.1 (permitting transi-

tional use of diesel street sweepers) (J. A. 16); Rule 1193

(permitting fleets of fewer than 50 refuse collection vehicles

to acquire dual-fuel vehicles) (J.A. 52). The rules contain no

exemption for vehicle fleets owned or operated by the

United States or its instrumentalities. See, e.g., Rule 1191(b)

(specifically listing “federal” fleets as among those subject to

the rule) (J.A. 24).

* — — —-—;

D. The Proceedings Below

Petitioners assert that Section 209(a) of the Clean Air Act

preempts the SCAQMD’s Fleet Rules because each of those

rules is a “standard relating to the control of emissions from

new motor vehicles.” 42 U.S.C. 7543(a). Petitioners and

SCAQMD each moved for summary judgment, stipulating

that no material facts were in dispute. Pet. App. 19a-20a.

The district court granted summary judgment to defendants.

Id. at 20a-27a.

The district court concluded that the Fleet Rules “impose

no new emission requirements on manufacturers whatso-

ever, 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.” Pet. App. 21a. The district

court further reasoned that the Fleet Rules “do not set a

‘standard relating to the control of emissions’” because,

“(rjather than imposing any numerical control on new

vehicles, the rules regulate the purchase of previously-

certified vehicles.” Ibid. In so stating, the court attached

significance to the fact that the SCAQMD’s Fleet Rules

allow purchase of a subset of those vehicles that CARB, with

EPA’s approval, had certified for sale in California. Id. at

21a-22a; see pp. 6-7, supra.

The district court recognized that the First Circuit in

Association of International Automobile Manufacturers,

Inc. v. Commissioner, 208 F.3d 1 (2000), and the Second Cir-

cuit in American Automobile Manufacturers Ass’n v.

Cahill, 152 F.3d 196 (1998), had each treated a state sales

requirement of ZEV vehicles as a “standard ‘relating to the

control of emissions.“ Pet. App. 22a. The district court dis-

tinguished the SCAQMD’s Fleet Rules on the ground that

each rule regulates “the purchase of vehicles from

among a subset of previously certified California vehicles”

10

and “does not compel manufacturers to meet a new emis-

sions limit.” Jd. at 23a.

The district court also found support for its conclusion in

Section 246 of the Clean Air Act, which authorizes States to

develop clean-fuel fleet programs for non-attainment areas.

See 42 U.S.C. 7586. The district court reasoned that Section

246 expresses Congress’s understanding that States may

regulate vehicle fleets. Pet. App. 23a. The district court

additionally suggested that the Fleet Rules are state health

and safety regulations that are entitled to a presumption of

validity. Jd. at 23a-24a. Finally, the court rejected peti-

tioners’ arguments that the Fleet Rules violate Section 177

of the Clean Air Act, 42 U.S.C. 7507, by imposing restric-

tions that are stricter than EPA has authorized California to

impose pursuant to Section 209(b)’s waiver provisions. Pet.

App. 24a-27a.

The court of appeals issued an order affirming the district

court’s decision for the reasons stated in the district court’s

opinion, Pet. App. la-2a, and denied petitions for rehearing

and rehearing en banc, id. at 28a-29a.

SUMMARY OF ARGUMENT

Congress has expressly defined the scope of the Clean Air

Act’s preemption of state laws regulating new vehicle

emissions. Section 209(a) states in relevant part that “[nJo

State or any political subdivision thereof shall adopt or

attempt to enforce any standard relating to the control of

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

SCAQMD’s Fleet Rules fall squarely within the terms of

Section 209(a)’s prohibition because they impose specific

emission-related requirements on new vehicles purchased by

fleet operators. Section 209(a) consequently preempts the

Fleet Rules unless and until California applies for and

receives a waiver of Section 209a)’s prohibition through Sec-

tion 209(b). See 42 U.S.C. 7543(b).

11

A. Section 209(a) preempts a state or local law if that law

constitutes “any standard” that “relat[es] to the control of

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

Section 209(a)’s reference to “any standard” embraces, by its

ordinary and legal meanings, a broad range of regulations,

including both quantitative and other emissions criteria that

specified vehicles or engines are required to meet. Section

209(a)’s prohibition of standards “relating to the control of

emissions” from new vehicles expresses Congress’s intent

essentially to occupy the field of controlling emissions from

those vehicles through standards, except to the extent that

Congress has expressly, or by clear implication, authorized

state regulation. Congress’s extension of preemption only to

standards relating to the control of emissions from “new

vehicles” identifies the limits of the federal government’s

largely exclusive sphere and generally preserves state regu-

lation of, for example, the “use, operation, or movement of

registered or licensed vehicles.” CAA § 209(d), 42 U.S.C.

7543(d).

B. Section 209(a) preempts the SCAQMD’s Fleet Rules

because they fall squarely within the statutory prohibition.

The Fleet Rules are standardls] relating to the control of

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

because they require a fleet operator to make purchasing

decisions with respect to new vehicles based on their emis-

sion characteristics. The Rules cannot be distinguished from

concededly invalid state regulations imposing “sales require-

ments” because a state regulation that restricts what vehi-

cles a resident can purchase correspondingly limits what

vehicles a manufacturer can sell. The Fleet Rules cannot be

justified on the basis that they merely require purchasers to

choose from a subset of vehicles that EPA has approved for

sale in California because requiring fleet operators to select

vehicles from only that subset is impermissible in the

absence of EPA’s approval of that added restriction. The

12

Clean Air Act’s specific provisions governing centrally-

fueled fleets indicate that Congress did not believe that

States would be free to regulate vehicle fleets however they

chose. Rather, the Clean Air Act specifically addresses the

spheres of federal and state responsibility and provides

legislative guidance that supplants general presumptions

respecting the validity of state regulations. Under the Clean

Air Act’s provisions, the State of California may seek EPA

approval of the Fleet Rules in accordance with Section

209(b), 42 U.S.C. 7543(b). But unless and until EPA ap-

proves the Fleet Rules, they are invalid and may not be

enforced.

ARGUMENT

SECTION 209(a) OF THE CLEAN AIR ACT PRE-

EMPTS THE SCAQMD FLEET RULES

Under this Court’s settled preemption jurisprudence,

“Congress can define explicitly the extent to which its enact-

ments pre-empt state law.” English v. General Elec. Co.,

496 U.S. 72, 78 (1990). Congress has exercised that power

through Section 209(a) of the Clean Air Act, which states

that Injo 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.” CAA § 209(a), 42 U.S.C. 7543(a). Section

209(a) expressly preempts the SCAQMD’s Fleet Rules be-

cause those rules, which impose emission-related criteria

respecting new motor vehicles, qualify as standardls] relat-

ing to the control of emissions from new motor vehicles.”

CAA § 209(a), 42 U.S.C. 7543(a). The SCAQMD cannot

impose such rules on vehicle fleets unless EPA grants a

waiver of Section 209(a)’s prohibition through the process

set out in Section 20%(b). 42 U.S.C. 7543(b).

NE LD ORE I, A Se a

13

A. Section 209(a) Prohibits A State Or Political Sub-

division From Adopting “Any Standard Relating To

The Control Of Emissions From New Motor Vehicles”

Congress has set out specific conditions for preemption of

state or local laws respecting mobile sources of air pollution.

Section 209(a), in relevant part, preempts a state or local law

if that law constitutes “any standard” that relatſes] to the

control of emissions” from “new motor vehicles.” 42 U.S.C.

7543(a). Section 209(a)’s precise terms, particularly when

read in light of its statutory context and history, limit the

authority of States and their subdivisions to control motor

vehicle emissions through regulation of the design, produc-

tion, sale, purchase, or licensing of new vehicles.

1. Section 209(a)’s reference to “any standard” necessar-

ily denotes that federal preemption reaches an extensive

range of regulatory activities. The term “standard,” in ordi-

nary usage and legal parlance, embraces a broad variety of

criteria or rules. For example, Webster’s Third New Inter-

national Dictionary (1993), defines a “standard,” in per-

tinent part, as including:

3 a: something that is established by authority, custom,

or general consent as a mode] or example to be followed:

CRITERION, TEST b: a definite level or degree of quality

that is proper and adequate for a specific purpose;

4: something that is set up and established by authority

as a rule for the measure of quantity, weight, or quality

* * * [and]

7 a: a carefully thought-out method of performing a task

<auditing ~s> b: carefully drawn specifications covering

manufacturing material or equipment.

Id. at 2223. Black’s Law Dictionary (7th ed. 1999) similarly

defines the term “standard” to include a “criterion for meas-

—

14

uring acceptability, quality, or accuracy.” Id. at 1412-1413.

See Black’s Law Dictionary 1259 (5th ed. 1979) (“A measure

or rule applicable in legal cases such as the ‘standard of care’

in tort actions.”).

The Clean Air Act uses the term “standard” in various

contexts to include a wide array of regulatory provisions.

That usage reflects Congress’s understanding that the term

has a broad, encompassing meaning that conforms to the

structure and purpose of the provision in which it is used.

For example, the Act directs EPA to prescribe “ambient air

quality standards,” CAA § 109, 42 U.S.C. 7409, which are

regulations specifying health-and-welfare-based levels for

the “maximum airborne concentration of a pollutant.” Whit-

man v. American Trucking Ass ns, 531 U.S. 457, 465 (2001).

The Act also directs EPA to establish “standards of perform-

ance” for certain pollution sources, e.g., CAA § 111, 42 U.S.C.

7411, which include not only “a requirement of continuous

emission reduction,” but “any requirement relating to the

operation or maintenance of a source to assure continuous

emission reduction,” CAA & 302(l), 42 U.S.C. 7602(l). The

Act further directs EPA to establish “emission standards”

for certain stationary sources, eg., CAA §§ 112(c)(2), 42

U.S.C. 7412(c)(2), which include not only “requirement({s]}”

that “limit{] the quantity, rate, or concentration of emissions

of air pollutants on a continuous basis,” but also “any re-

quirement relating to the operation or maintenance of a

source to assure continuous emission reduction, and any de-

sign, equipment, work practice or operational standard pro-

mulgated under this chapter,” CAA § 302(k), 42 U.S.C.

7602(k).

Congress did not define the term “standard” for purposes

of Section 209(a), but it also expressed no intent in Section

209(a) to limit that provision’s preemptive effect to particu-

lar types of standards, such as numerical specifications for

tailpipe emissions. If Congress had intended that result, it

15

could have easily said so. Rather, both the ordinary and the

legal definitions of “standard,” coupled with Congress’s

varied usage of that term throughout the Clean Air Act,

demonstrate that Section 209(a)’s reference to “any stan-

dard” is constrained primarily by context and embraces both

quantitative and non-quantitative emission criteria that new

vehicles and engines are required to meet.

2. Section 209(a) prohibits States and their subdivisions

from adopting any standard “relating to the control of emis-

sions” from new motor vehicles or new motor vehicle

engines. 42 U.S.C. 7543(a). This Court has previously

treated the term “relate to,” in the context of federal pre-

emption statutes, as prohibiting state laws that have “a con-

nection with or reference to” the federal statute’s predicate.

See Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001) (“state law

relates to an ERISA plan ‘if it has a connection with or

reference to such a plan“) (quoting Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 97 (1983)); Morales v. Trans World Air-

lines, Inc., 504 U.S. 374, 384 (1992) (“Since the relevant

language of the ADA is identical, we think it appropriate to

adopt the same standard here.”). The Clean Air Act’s use of

the phrase “relating to” is indistinguishable. Section 209(a)

accordingly prohibits those state or local standards that

3 As an historic matter, hoth EPA and Congress have expressed the

understanding that the term “standard” is not limited to quantitative mea-

sures of tailpipe emissions for particular vehicles. In promulgating

“standards applicable to the emission of any air pollutant from any class or

classes of new motor vehicles” pursuant to Section 202(a)(1), 42 U.S.C.

7521(a)(1), EPA has shifted from typically specifying defined emissions

criteria for particular classes of vehicles to also allowing manufacturers to

choose what mix of vehicles to produce to attain fleetwide averages. See

65 Fed. Reg. 6698 (2000); 50 Fed. Reg. 10,606 (1985). In the 1990 Clean

Air Act Amendments, Congress enacted Section 202(g), which directed

EPA to issue standards under Section 202(a) that phased in new emissions

criteria over specified percentages of a manufacturer’s sales volume, again

indicating that the term “standards” is not limited to quantitative ‘tailpipe

emissions requirements for individual vehicles.

16

“ha[ve] a connection with or reference to” controlling emis-

sions from new motor vehicles. Egelhoff, 532 U.S. at 147.

Section 209(a)’s “relating to” formulation is, by its terms,

broadly encompassing. See, e.g., Morales, 504 U.S. at 383-

384 (the phrase “relating to” expresses “a broad pre-emptive

purpose”). Nevertheless, that formulation should not be

applied with such “uncritical literalism” that it would reach

through “infinite connections” to state or local regulation

that bears only the most attenuated relationship to control-

ling emissions from new motor vehicles. See Egelhoff, 532

U.S. at 147; California Div. of Labor Standards Enforce-

ment v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325

(1997); New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995).

Rather, Section 209(a) expresses Congress’s understanding

that it has “largely pre-empted the field with regard to

‘emissions from new motor vehicles,” Washington v. Gen-

eral Motors Corp., 406 U.S. 109, 114 (1972). See Egelhoff,

532 U.S. at 152-153 (Scalia, J., concurring) (suggesting that

ERISA’s “relate to” formulation constitutes “a reference to

our established jurisprudence concerning conflict and field

pre-emption”); Dillingham Constr., N.A., Inc., 519 U.S. at

336 (Scalia, J. concurring) (the “relate to” formulation

„identiflies] the field in which ordinary field pre-emption

applies”); cf. Crosby v. National Foreign Trade Council, 530

U.S. 363, 372 n.6 (2000) (stating that field preemption may

fall into any of the categories of express, implied, or conflict

preemption”). |

The scope of Section 209(a)’s preemptive effect should be

measured by reference to Congress’s objectives. See Egel-

hoff, 532 U.S. at 147; Dillingham, 519 U.S. at 325. Congress

affirmatively assigned the federal government central re-

sponsibility for developing standards for controlling emis-

sions from new motor vehicles. See, e.g., CAA § 202, 42

U.S.C. 7521. Alternative state or local rules that effectively

ET 8

17

establish emission criteria for such vehicles, whether

through equivalent or alternative methods, are at the core of

standards “relating to the control of emissions.” CAA

§ 209(a), 42 U.S.C. 7543(a). Whatever its ultimate reach,

Section 209(a) surely prohibits a State or its political sub-

division from unilaterally promulgating regulations that

would effectively subject new vehicle manufacturers and the

prospective purchasers of those vehicles to an additional set

of emission-based limitations.

Viewed in that light, Section 209(a) generally preempts

state or local regulations that require new motor vehicles to

satisfy quantitative or non-quantitative emissions criteria as

a condition of sale or licensing. Such requirements consti-

tute standards relating to the control of emissions from such

vehicles that, contrary to Section 209(a)’s core objective,

burden the design and production of new motor vehicles.

See pp. 19-21, infra.*

8. Section 209(a) broadly prohibits any standard relating

to the centrol of emissions, but only if those emissions are

emitted from “new motor vehicles or new motor vehicle

engines.” 42 U.S.C. 7543(a). That limitation imposes a sig-

nificant restriction on the scope of Section 209(a)’s preemp-

tive effect. Section 209(a) expressly preempts state regula-

tion—including “certification, inspection, or any other ap-

4 By contrast, Section 209(a) would not generally reach state volun-

tary or incentive programs that merely encourage vehicle manufacturers

to sell, or consumers to buy, vehicles with particular emission characteris-

tics. Such programs are not within the meaning of the term “standard,” as

used in Section 209(a), because they they do not impose enforeelable]“

requirements. See CAA § 209(a), 42 U.S.C. 7543(a). So long as such a

program were not structured in such a way as to create substantial

barriers to market entry, it would not interfere with Section 209(a)’s core

objective of preventing disruption of the nationwide market for new motor

vehicles. See, e. g., Egelhoff,532° S. at 147 (evaluating the “objectives” of

the federal statute and the “nature of the effect of the state law” as “a

guide to the scope of the state law that Congress understood would

survive”).

18

proval relating to the control of emissions from any new

motor vehicle”—up to and including the point of the “initial

retail sale, titling (if any), or registration of such vehicle.” 42

U.S.C. 7543(a). See CAA § 216(3), 42 U.S.C. 7550(3) (defin-

ing a “new motor vehicle” as “a motor vehicle the equitable

or legal title to which has never been transferred to an

ultimate purchaser”). States and their political subdivisions

may require that used vehicles be retrofitted with emissions

control devices, but they may not exercise their authority in

a manner that would, in practical effect, establish an emis-

sions standard for new motor vehicles. See Allway Tazi,

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

1972), aff’d, 468 F.2d 624 (2d Cir. 1972) (per curiam). States

and their political subdivisions also remain free to “control,

regulate, or restrict the use, operation, or movement of reg-

istered or licensed motor vehicles,” CAA §209(d), 42 U.S.C.

7543(d), subject to the application of implied preemption

principles. See 340 F. Supp. at 1124; ef. California v. De-

partment of the Navy, 624 F.2d 885, 888 (9th Cir. 1980).°

5 The Clean Air Act elsewhere recognizes a State’s authority to regu-

late the use of vehicles. For example, Section 108(f) refers to a list of

state transportation control measures, and Section 182(g)(4) states that

States have some authority to adopt incentive programs. See 42 U.S.C.

7408(f), 751la(g)(4). A State’s authority under those provisions, however,

is not unlimited. For example, an incentive program or related state

initiative may well be preempted if it frustrates Section 209%a)’s purpose

by acting as a substantial barrier to the entry of new motor vehicles into

the marketplace. Other provisions of the Clean Air Act may signal further

limitations on the ability of States to adopt incentive programs. For

example, Section 249(f)(3), 42 U.S.C. 7589(f)(3), sets forth a list of incen-

tives States may offer to induce participation in a clean-fuel vehicle pilot

test program, which would seem to have little function if incentives were

generally available to States without restriction. Whatever the scope of a

State’s ability to adopt incentive programs, however, the Fleet Rules

cannot be justified on that basis, because they prohibit market entry by

mandating particular purchases based on emission criteria. They are

“standards” and not incentive programs.

19

4. The text of Section 209(a) manifests the division of

federal and state authority reflected throughout the Clean

Air Act’s mobile emissions provisions. Those provisions re-

flect Congress’s judgment that the federal government

should exercise primary responsibility for developing strate-

gies for controlling emissions from new vehicles, while

States may exercise a restricted role consistent with federal

initiatives and subject to federal guidance, oversight, and

approval.

For example, Congress gave the federal government pri-

mary responsibility for developing standards to control

emissions from new motor vehicles, see CAA § 202(a), 42

U.S.C. 7521(a), while recognizing that the States retain

authority to control emissions by regulating the operation

and use of vehicles or by establishing emissions criteria for

such vehicles once they are no longer new, eg., CAA

§§ 108(f), 182(d)(1) and (e)(4), 42 U.S.C. 7408(f), 7511a(d)(1)

and (e)(4) (transportation and traffic control measures); CAA

§ 182(a)(2)(B), (b)(4), (c)(3), 42 U.S.C. 7511a(a)(2)(B), (b)(4),

(c)(3) (vehicle inspection and maintenance measures).

The Clean Air Act’s provisions allocating authority be-

tween the federal government and the States reflect

Congress’s understanding of the importance of maintaining

uniform standards for new motor vehicles. Nationally uni-

form regulatory standards provide public benefits by allow-

ing automobile manufacturers to realize economies of scale in

producing largely standardized vehicles for sale at affordable

prices in a] 50 States and the District of Columbia. Section

209 embodies a compromise between the public benefits of a

nationally uniform approach to vehicle emission controls and

the preference of some States to preserve their traditional

role in regulating motor vehicles. Congress opted to employ

uniform federal standards for new vehicles, subject to the

exception that California may depart from those standards if

it satisfies Section 209(b)’s waiver requirements. See H.R.

20

Rep. No. 728, 90th Cong., Ist Sess. 20-23 (1967); S. Rep. No.

403, 90th Cong., Ist Sess. 33 (1967); 113 Cong. Rec. 30,950

(1967) (statem int of Rep. Springer); id. at 32,478 (statement

of Sen. Murphy); see generally Motor & Equip. Mfrs. Ass’n

v. EPA, 627 F.2d 1095, 1108-1111 (D.C. Cir. 1979) (MEMA),

cert. denied, 446 U.S. 952 (1980).

Since that time, Congress has continued to grant the

federal government primacy in controlling emissions from

new motor vehicles, subject to specific exceptions that pre-

serve the core policy of national uniformity. For example,

Congress amended the Clean Air Act in 1977 to allow other

States to adopt emissions standards for new motor vehicles

„identical“ to those EPA has authorized California to em-

ploy. See CAA § 177, 42 U.S.C. 7507. Section 177 specifi-

cally provides, however, that States choosing to adopt the

California emissions standards may not “prohibit or limit,

directly or indirectly, the manufacture or sale of a new motor

vehicle or motor vehicle engine that is certified in California

as meeting California standards” or “take any action of any

kind to create, or have the effect of creating, a motor vehicle

or motor vehicle engine different than a motor vehicle or

engine certified in California under California standards (a

‘third vehicle’) or otherwise create such a third vehicle.’” 42

U.S.C. 7507.°

Congress adhered to that policy in adopting the “clean-fuel vehicle”

provisions in the 1990 Amendments. See CAA §§ 241-250, 42 U.S.C. 7581-

7590. Congress drew the definitions of vehicle classes in these provisions

from the standards of California’s LEV program. CAA § 243, 42 U.S.C.

7583 (setting forth standards for CF FP vehicles); see Cal. Code Regs. tit.

13, § 1900 (2003). Congress also provided that, if California altered its

standards, the new California standards would supersede those set forth

in the 1990 Amendments, CAA § 243(e), 42 U.S.C. 7583(e). Congress fur-

ther required EPA to administer and enforce the CFFP program in the

same manner as does the State of California (unless the State’s inter-

pretation is inconsistent with the Act’s requirements). CAA § 244, 42

U.S.C. 7584. Those provisions all serve to avoid proliferation of new

vehicle emissions standards and fragmentation of the market. See

21

Section 209(a)’s preemptive prohibitions accordingly play

a vital role in effectuating Congress’s judgment that the

federal government should exercise primary responsibility

for controlling emissions from new motor vehicles. Congress

recognized that the States can play a complementary role,

but they should not be allowed unilaterally to subject new

motor vehicles to a variety of uncoordinated emission control

requirements that could needlessly fragment the national

marketplace for such vehicles. Section 209(a)’s prohibitions,

in combination with Section 209(b)’s waiver provision, strike

a balance between the national interest in uniform federal

requirements and the state interest in developing additional

initiatives in response to local conditions.

B. The SCAQMD Fleet Rules Are Standards “Relating To

The Control Of Emissions From New Motor Vehicles”

Section 209(a) of the Clean Air Act preempts the

SCAQMD’s Fleet Rules because those regulations are stan-

dardls] relating to the control of emissions from new motor

vehicles,” 42 U.S.C. 7543(a), and the State of California has

not sought and obtained a waiver of Section 209(a)’s

prohibition through Section 209(b), 42 U.S.C. 7543(b). The

Fleet Rules are “standards” because they require fleet op-

erators to purchase new vehicles in accordance with specific

emissions criteria that those vehicles must meet. They

“relat[e] to the control of emissions” because they restrict a

fleet operator’s purchasing decisions in order to control new

vehicle emissions. Indeed, the Fleet Rules explicitly make

reference to the purpose of controlling emissions. See, e.g.,

Rules 1186.1(a), 1191(a), 1192(a), 1193(a), 1194(a), 1196(a)

(J.A. 16, 24, 46, 52, 58, 66). And the Rules incontrovertibly

apply to all purchases, including new vehicle purchases. See,

generally Henry A. Waxman et al., Cars, Fuels, and Clean Air: A Legis-

~ lative History of Title II of the Clean Air Act Amendments of 1990, 21

Envt’l L. 1947, 1998-2001 (1991).

22

e.g., Rules 1186.1(d), 1191(e), 1192(d), 1193(d), 1194(d),

1196(d) (J.A. 19, 27, 48, 54, 61, 68). The Fleet Rules therefore

fall squarely within Section 209(a)’s prohibition and cannot

be adopted or enforced without first obtaining EPA’s waiver

of that prohibition through Section 209(b).

The district court reasoned that the Fleet Rules fall out-

side of Section 209(a)’s prohibition because, “(rjather than

imposing any numerical control on new vehicles, the rules

regulate the purchase of previously-[CARB]-certified vehi-

cles.” Pet. App. 21a. The court noted that Section 246 of the

Clean Air Act directs States to impose air-quality based

restrictions on fleet vehicle purchases in prescribed circum-

stances, id. at 23a, and stated that it “is not rational” to

conclude that Section 209(a) would prohibit them in other

circumstances. Invoking the principle that state laws regu-

lating public health and safety “are presumed to be valid,”

the court concluded that “the Fleet Rules do not constitute

unlawful standards ‘relating to the control of emissions.’”

Id. at 24a. That reasoning, at each of its critical junctures, is

unsound.

1. The district court was mistaken in concluding that the

Fleet Rules do not qualify as “standards” for purposes of

Section 209(a) because they do not impose “any numerical

control” on new vehicles. Pet. App. 2la. As demonstrated

above, the Clean Air Act employs the term “standard” in

Section 209(a) in its natural sense to reach a broad spectrum

of regulatory requirements and criteria beyond specific

tailpipe emission limitations. Section 209(a)’s use of the term

“standard” necessarily embraces the Fleet Rules, which

regulate a fleet operator’s purchase or lease of new vehicles

based on the numerical emission characteristics (e.g., the

LEV and ULEV requirements) or emissions control design

characteristics (e.g., the alternative-fuel requirement) of the

qualifying new vehicles. See Association of Int’l Auto. Mfrs.

v. Commissioner, 208 F.3d 1, 6-7 (Ist Cir. 2000) (AJAM);

23

American Auto. Mfrs. Ass n v. Cahill, 152 F.3d 196, 200 (2d

Cir. 1998) (AAM).

The Fleet Rules are in principle no different than

requirements specifying that fleet operators may purchase

only particular new vehicles that meet specific tailpipe emis-

sions criteria (or incorporate design features that accomplish

that result), or that fleet operators may purchase only new

vehicles that collectively conform to some fleet-wide average

aggregate tailpipe emissions limitation. A State’s unilateral

imposition of any such requirement would result in a

standard for “the control of emissions from new motor

vehicles,” CAA § 209(a), 42 U.S.C. 7543(a), that would be

inconsistent with the Clean Air Act’s division of federal and

state responsibilities. Section 209(a) preempts such stan-

dards regardless of the form of the rule imposing the emis-

sion control requirement.

2. The district court’s conclusion that Section 209(a) does

not preempt the Fleet Rules because they “regulate the

purchasing and leasing, not the sale, of vehicles by fleet

7 The District of Columbia Circuit stated in MEMA that the legis-

lative history of the Clean Air Act “indicates that Congress intended the

word ‘standards’ in Section 209 to mean quantitative levels of emissions

rather than regulations involving certification or in-use maintenance

restrictions.” 627 F.2d at 1112. To the extent the court suggested that

only a regulation setting out “quantitative levels of emissions” qualifies as

a “standard,” it spoke too broadly. EPA has drawn a distinction between

“standards” and “accompanying enforcement procedures,” ibid., but it has

made clear that the term “standard” includes both emissions-related crite-

ria and the imposition of such criteria on an identified group of vehicles.

See AJAM, 208 F.3d at 6-7. The Act itself uses the term in that way,

providing that federal emissions regulations shall “contain standards

which provide that emissions from a percentage of each manufacturer's

sales volume” will meet particular criteria. See CAA 202(g), 42 U.S.C.

7521(g). As the First Circuit pointed out, Section 209(a)’s use of the term

“standard” should not be read to exclude state regulation, such as the

Fleet Rules, whose “very purpose and effect * * * is to effect a

quantitative reduction in emissions.“ A/JAM, 208 F.3d at 7 (reconciling

MEMA).

24

operators” (Pet. App. 21a) is also without merit. The district

court conceded that EPA and the courts of appeals that have

addressed the issue have concluded that state regulations

requiring that a specified percentage of new vehicles sold

within the State have certain emission characteristics “must

be considered a standard ‘relating to the control of

emissions.“ AJAM, 208 F.3d at 6; AAMA, 152 F.3d at 200.

That conclusion is sound. Such “sales requirements,” which

control emissions from new vehicles by prescribing the num-

ber and emission levels of new vehicles that a manufacturer

may sell, are inescapably “standard[s] relating to the control

of emissions.” CAA § 209(a), 42 U.S.C. 7543(a). As EPA

explained ia response to inquiries from the First Circuit,

Setting the link between the emission limit and the

applicability of the limit to a particular number of

vehicles is an inherent part of the standard setting

process.

AIAM, 208 F.3d at 6 (quoting EPA letter (Sept. 15, 1999));

see id. at 3-5 (describing the court’s request for EPA’s

views). There is no basis for concluding that analogous

“purchase requirements” that seek to achieve the same end

are not likewise preempted.

The district court’s distinction is untenable as a textual

matter because Section 209(a)’s prohibition of “any standard

relating to the control of emissions from new motor vehicles”

makes no distinction between state requirements that

control new vehicle emissions by regulating what residents

buy rather than by regulating what manufacturers produce

and sell. Such distinctions would make little sense, because

every purchase of a new vehicle results in a sale, and a state

regulation that restricts what a resident can purchase

correspondingly limits what the manufacturer can produce

for sale. Under the district court’s illusory distinction, a

State could unilaterally subject manufacturers to that

25

State’s own unique regime of new vehicle emission control

requirements simply by casting those requirements in terms

of what types of vehicles its residents are allowed to buy.

Every State would then be free to adopt its own emissions

standards, subjecting automobile manufacturers to the very

patchwork of varying state regulations that Congress

crafted Section 209(a) to avoid.

The district court was also mistaken in distinguishing the

Fleet Rules on the basis that they “require purchasers to

choose from among a subset of previously [CARB-]certified

California vehicles.” Pet. App. 23a. The Fleet Rules run

afoul of Section 209(a) precisely because they require fleet

operators to select from only a subset of the vehicles that

EPA has authorized CARB to certify for sale in California.

For example, the CARB standards allow, but do not require,

manufacturers to produce alternative-fueled vehicles. See

Cal. Code Regs. tit. 13, § 1956.8 (2003). By contrast, four of

the Fleet Rules require use of alternative-fueled vehicles,

subject to limited exceptions. See Rules 1186.1, 1193, 1194

(as to heavy vehicles), 1196 (J.A. 16, 52, 58, 66). Similarly,

CARB’s Urban Bus Program allows bus manufacturers to

choose between an alternative-fuel path and a diesel path,

Cal. Code Regs. tit. 13, § 1956.2 (2003), but Rule 1192

requires that buses purchased for fleets in the SCAQMD be

alternative-fueled, and thus narrows CARB’s two paths to

one. See J.A. 46. While CARB’s regulations allow manu-

facturers flexibility in determining what mix of LEV and

ULEV vehicles to produce, Cal. Code Regs. tit. 13, § 1960.1

(2003), Rules 1191 and 1194 compel purchase of specified per-

centages of those vehicles. See J.A. 24, 58.

The Fleet Rules accordingly impose additional regulatory

requirements for the “control of emissions from new motor

vehicles” beyond those found in the CARB standards. CAA

§ 209(a), 42 U.S.C. 7543(a). Section 209(a) preempts state

regulation, even state regulation that is consistent with the

26

Clean Air Act’s substartive requirements, so long as it falls

within Section 209(a)’s terms. See Morales, 504 U.S. at 387;

Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S.

825, 829 (1988). It accordingly prohibits the SCAQMD’s

unauthorized revision of the CARB rules.

3. The district court also erred in reasoning that Section

246 of the Clean Air Act, 42 U.S.C. 7586, which addresses

centrally-fueled vehicle fleets, supports the SCAQMD’s

claim of authority to promulgate the Fleet Rules. See pp. 5-

6, supra (discussing the Clean Air Act’s “clean-fuel vehicles”

provisions). Section 246, which created what is known as the

“Clean Fuel Fleet Program” (CFF P), directs certain States

to modify their SIPs to include specifically prescribed clean-

fuel vehicle fleet provisions. See CAA § 246(a), 42 U.S.C.

7586(a). It reflects Congress’s understanding that States do

not have a general license to impose emission-based

restrictions on fleet vehicle purchases, but instead must

regulate fleet vehicle emissions in accordance with

Congress’s instructions. Congress’s imposition of substan-

tial conditions on fleet regulation, see CAA § 246(b)-(h), 42

U.S.C. 7586(b)-(h), indicates that Congress did not believe

8 Significantly, Section 177 of the Clean Air Act allows other States to

follow California’s example and adopt EPA-approved CARB standards,

provided that “such standards are identical to the (CARB) standards” and

the State adopts those standards “at least two years before commence-

ment” of the relevant model year. 42 U.S.C. 7507. Section 177 further

provides that States adopting the CARB standards may not “prohibit or

limit, directly or indirectly, the manufacture or sale of the CARB-certi-

fied vehicles. The SCAQMD is not a State, and therefore not eligible to

invoke Section 177. But even States that are eligible to adopt the CARB

standards could not adopt analogues of the Fleet Rules, which are not

identical to” the CARB standards and impose purchase requirements

that would “limit, directly or indirectly, the manufacture or sale of” the

CARB-certified vehicles. Ibid.

27

that States were already free to regulate emissions from

vehicle fleets however they chose.

For example, Section 246(a) requires that States par-

ticipating in the CFF P program submit their fleet regulation

programs to EPA as SIP revisions, which assures federal

oversight of the State’s regulatory provisions. See CAA

§ 246(a), 42 U.S.C. 7586(a); see also CAA § 110(k)-(l), 42

U.S.C. 7410(k)-(J) (setting out the process for EPA approval

of SIP revisions). Section 246(b) additionally sets out spe-

cific phase-in requirements. 42 U.S.C. 7586(b). Section

246(d) requires States to give fleet operators the choice of

what type of fuel to use and what type of vehicle to buy, so

long as other congressionally-specified requirements are

met. 42 U.S.C. 7586(d). Furthermore, Section 249 sets out a

carefully circumscribed program to demonstrate the effec-

tiveness of clean-fuel vehicles. 42 U.S.C. 7589. Congress

specifically provided in Section 249(f)(4) that this program

could not incorporate any “production or sales mandates for

clean-fuel vehicles or clean alternative fuels,” 42 U.S.C.

7589(f)(4) (emphasis added), signaling that mandatory pro-

grams like the Fleet Rules are not within State authority.

See also 42 U.S.C. 7590(b) (stating that Part C of Title II

does not grant EPA authority to adopt “production [man-

dates” or “to specify as applicable the models, lines, or types

of, or marketing or price practices, policies, or strategies for,

vehicles subject to this part”). And the Clean Air Act

elsewhere defines the critical terms. See, e.g., CAA § 241(2)

(“clean alternative fuel”), (5) (“covered fleet”), (6) (“covered

fleet vehicle”), and (7) (“clean-fuel vehicle”), 42 U.S.C.

7581(2), (5), (6), and (7).

In a similar manner, certain state fuel programs mandated by Con-

gress under Section 211(m) are exempt from the reach of the general

preemption provision in Section 211(c)(4)(A). See Exxon Mobil Corp. v.

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

28

Section 246 and its allied provisions demonstrate the care

with which Congress calibrated the Clean Air Act’s pro-

visions balancing federal and state authority over fleet

vehicle emissions. That balanced structure cannot be recon-

ciled with a reading of the Act that would allow unlimited

and disparate state and local regulation of new fleet vehicle

purchases. Contrary to the district court’s conclusion, Sec-

tion 246 and the allied provisions reflect the understanding,

set out explicitly in Section 209(a), that the federal govern-

ment largely occupies the field of establishing emissions

criteria that new motor vehicles must meet, and States (and

their political subdivisions) may regulate new fleet vehicle

purchases only in accordance with EPA’s oversight and the

Clean Air Act’s design.

4. The district court also erred in relying on the general

principle that state health and safety regulations “are pre-

sumed to be valid.” Pet. App. 24a (citing Medtronic, Inc. v.

Lohr, 518 U.S. 470, 475 (1996)). That general principle must

yield to the specific language of the Clean Air Act. Congress

expressly recognized, through Section 116, that States gen-

erally retain authority to regulate air pollution, but Congress

specifically conditioned that principle through the limitations

set out in Section 209. See CAA § 116, 42 U.S.C. 7416.

Section 209(a), in turn, broadly preempts state standards

“relating to the control of emissions from new motor vehi-

cles.” 42 U.S.C. 7543(a). That prohibition, by its terms,

reaches the SCAQMD’s Fleet Rules. The general principle

that “state regulations are presumed to be valid” in the

absence of countervailing indicia of congressional intent can-

not overcome Section 209(a)’s specific provisions preempting

the state regulations at issue. See Morales, 504 U.S. at 384-

385 (a general savings clause is subject to a specific pre-

emption provision).

The Clean Air Act does not leave the SCAQMD without

further recourse. The SCAQMD may request the State of

29

California to seek EPA approval of appropriate rules gov-

erning vehicle fleet operations through the avenues that

Congress expressly provided. Section 209(b) specifically

authorizes EPA to waive Section 209(a)’s prohibition upon

satisfaction of the conditions prescribed therein. See 42

U.S.C. 7548(b). In addition, the State of California may be

entitled to place restrictions on the types of new public

vehicles that the State and its instrumentalities purchase for

their own use. See Building & Constr. Trades Council of

Metro. Dist. v. Associated Builders & Contractors, 507 U.S.

218, 231-232 (1993) (“In the absence of any express or

implied indication by Congress that a State may not manage

its own property when it pursues its purely proprietary in-

terests, and where analogous private conduct would be

permitted, this Court will not infer such a restriction.”). But

the court of appeals erred in affirming the district court’s

resolution of the issue that is now before this Court. Section

209(a) preempts the Fleet Rules because they are “stan-

dardls] relating to the control of emissions from new motor

vehicles” and California has neither sought nor received a

waiver of Section 209(a)’s prohibition in accordance with

Section 209(b). See 42 U.S.C. 7543(a) and (b).

30

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

AUGUST 2003

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY BOSSERT CLARK

Deputy Assistant Attorney

General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

GREER S. GOLDMAN

JOHN A. BRYSON

R. JUSTIN SMITH

Attorneys