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

. | ees seeneed oo V.de-

/0) PILED

: AUG 29 2003

No. 02-1343

In The

Supreme Court of the Anited States

+

—

ENGINE MANUFACTURERS ASSOCIATION and

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

Vv.

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT, et al.,

Respondents.

SJ

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

- ¢

JOINT BRIEF OF THE AMERICAN AUTOMOTIVE

LEASING ASSOCIATION AND NATIONAL

ASSOCIATION OF FLEET ADMINISTRATORS, INC.

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION

¢

Kipp A. CODDINGTON, Esq.

(Counsel of Record)

ALSTON & BIRD

601 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2601

(202) 756-3300

PAUL C. SMITH, Esq.

310 Mill Road

Falmouth, MA 02540

(508) 495-0129

August 29, 2003

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 a

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE..............ccccccseeeeeeees

A. American Automotive Leasing Association ....

B. National Association of Fleet Administrators,

I. THE FLEET RULES ARE INCONSISTENT

A. Section 246 Is An Integral Part Of The Fed-

eral Clean-Fuel Vehicle Program That Was

C.

Intended To Prohibit Localities From Regu-

lating Fleet Vehicle Acquisition Decisions In

The Fleet Rules’ Reliance On Section 246

Is Undermined By The State Of Califor-

nia’s Decision To Opt Out Of The Section

The Fleet Rules Render Section 246

SECTION 209 EXPRESSLY PREEMPTS

STATE AND LOCAL REGULATION OF

VEHICLE ACQUISITION DECISIONS BY

SECTION 246 SEPARATELY PREEMPTS

THE FLEET RULES ON IMPLIED PRE-

EMPTION GROUNDS ..-ecssssceeccsssseeccsseseccossens

24

li

TABLE OF CONTENTS - Continued

‘Page

A. Congress Occupied The Field Of Fleet

Vehicle Acquisition Programs.................. 25

B. The Fleet Rules Undermine Federal Pol-

icy That Fleet Vehicle Acquisition Deci-

sions Be Regulated Uniformlly.................. 28

BILTON cccccecccccccccnscsssccccccvccssscessonccsecssoonsosooee 29

iii

TABLE OF AUTHORITIES

Page

CASES

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

1120 (S.D.N.Y.), aff’d, 468 F.2d 624 (2d Cir. 1972)....... 21

Chisom v. Roemer, 501 U.S. 380 (1991) ................000. 18, 20

City of Burbank v. Lockheed Air Terminal, Inc., 411

| 25, 26, 27

Duncan v. Walker, 533 U.S. 167 (2001) ............000.0c0000 18, 20

Engine Manufacturers Association v. South Coast

Air Quality Management District, 158 F. Supp.

GS ae a 9,19

Engine Manufacturers Association v. South Coast

Air Quality Management District, 309 F.3d 550

| Ee & 9, 14, 17, 24

Geier v. American Honda Motor Co., 526 U.S. 861

EE ene 28

Hines v. Davidowitz, 312 U.S. 52 (1941) .............ccccccseeenees 28

Kamen v. Kemper Financial Services, Inc., 500 U.S.

Ee 24

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

Sian iesirteitenahdetindiasitata casa taateiasialtas aarmeatiaeaittieael 9, 16,18

Metro Systems Corp. v. City of New York, No. 78

Civ. 6146, 1979 U.S. Dist. LEXIS 14837 (S.D.N_Y.

aah tacieercanetiniirareatinrairaineeiemeercsreeel 21

New Jersey v. New York, 523 U.S. 767 (1998) ............. 24, 25

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)......25, 29

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

iv

TABLE OF AUTHORITIES — Continued

Page

Swan v. Peterson, 6 F.3d 1373 (9th Cir. 1993), cert.

denied, 513 U.S. 985 (1994) ...............ccescsccsessserscesees 24, 25

Wisconsin Public Intervenor v. Mortier, 501 U.S.

of 18

STATUTES |

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OL 13

42 U.S.C. § T51LlalcK4B)........ccccccceeeeseeeeeeeeees 15, 16, 17, 26

CI 16

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GB DEB... § FEB .ncccceccvesesessecsssccsccssecssssssesssesscsscensusssssssassuss 10

v

TABLE OF AUTHORITIES - Continued

Page

i T 10, 15

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Sp Ny Bet aiciirnnsnccnnaniuiiintinsinninseniammmainismnsiae sisi 10

RULES

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Se ee hterrccenciennctscntnniititiiinmermtstinasmenssiiil 12

a 10

a 10

40 C.F.R. Part 88 Subpart C................ecccccsccossecessceeeess 10, 11

Cre ee 3

a ee Ce ccecescctnccecesnsnccscsmmenmnemmeecenonsions 17

BD OG, BR, SEG CD acececcccccnccsccscccsassncsscssncecees 4, 14, 28

I ee 16

GO Ped. Rag. 50,068 (1G06)..............20.cceccecccesersessererseeee 11, 12

ee 14

vi

TABLE OF AUTHORITIES -— Continued

Page

OTHER AUTHORITIES

Clean Fuel Fleet Program Implementation Guidance

(EPA 420-R-98-011, Aug. 1998) ............ccccccseccereeeeees 10, 14

David P. Currie, Motor Vehicle Air Pollution: State

Authority and Federal Pre-emption, 68 Mich. L.

Rev. 1083 (1970)................ sossseseneenecnssssssassncsneeneencess 22, 23

H. Rep. No. 728, 90th Cong., Ist Sess. (1967),

reprinted in 1967 U.S.C.C.A.N. 1938 ...........ccceesseeseeees 23

Hearings Before a Special Subcommittee on Air &

Water Pollution, 88th Cong., 2nd Sess. (1964)............... 27

Respondents’ Brief in Opposition to Petition for

Certiorari, No. 02-1343 (April 14, 2003)...............-...-ee+ 8

S. Rep. No. 192, 89th Cong., Ist Sess. 6 (1965)................. 22

OR Oe 18

U.S. EPA, General Counsel Opinion, “Transportation

Control Plans” (Aug. 11, 1972) ...........ccccssseessrreeeeeeeeees 21

~_—— ~~ ee oe ey eee

— ——

1

INTERESTS OF AMICI CURIAE

The American Automotive Leasing Association

(*AALA”) and the National Association of Fleet Adminis-

trators, Inc. (“NAFA”) respectfully submit this joint brief

in accordance with Supreme Court Rule 37.3.’ Amici do so

because the Court’s interpretation of the fleet rules at

issue (“Fleet Rules”) will determine whether the South

Coast Air Quality Management District (“SCAQMD”) and

hundrede of other localities may regulate fleets in a

»alkanized manner by prohibiting them from purchasing

or leasing, on a locality-by-locality basis, vehicles that may

otherwise be lawfully acquired.

A. American Automotive Leasing Association

AALA is a trade association representing the fleet

leasing and management industry. The industry owns

approximately 3,560,000 of the cars and light-duty vehi-

cles used by businesses throughout the United States.

While these vehicles are used predominantly for sales and

service functions, the range of commercial and State and

local governmental fleet usage is significant.

In contrast to the consumer car leasing business that

limits itself to offering the retail public alternative financ-

ing, AALA members provide comprehensive fleet consult-

ing and management services to commercial, non-profit,

and governmental organizations. The range of services

includes: .

' The parties consented to the filing of this brief, and copies of the

parties’ written consents have been filed with the Clerk of the Court.

This brief was not authored in any part by counsel for any party, and no

persons or entities other than amici curiae, its members, and counsel

made a monetary contribution toward the preparation or submission of

this brief.

2

(1) selecting and acquiring the most appro-

priate and cost-effective vehicle for the particular

work to be performed;

(2) assisting in operating and maintaining

those vehicles safely and economically, including

designing and implementing fueling, mainte-

nance, and safety programs, as well as ensuring

compliance with State and local registration and

operating requirements; and

(3) reclaiming, at the end of the lease, the

highest value from the vehicle through auction,

public sale, or other disposal

B. National Association of Fleet Administra-

tors, Inc.

NAFA members manage fleets of automobiles, light-

and medium-duty trucks and/or vans for organizations in

the United States and Canada. A substantial number of

NAFA members manage vehicles operating in California.

The majority of NAFA’s members manages fleets for

corporations, covering a wide range of manufacturing and

service organizations. Some members work for govern-

ments (local, State, and federal) or public service entities

(law enforcement, educational institutions, utilities, etc.),

while others serve financial institutions, insurance com-

panies, non-profit organizations, and the like. The typical

NAFA member manages a fleet of approximately 1,200

vehicles. This management responsibility spans each

vehicle’s life cycle, from acquisition to final disposition.

NAFA’s Pacific Southwest Chapter includes the fleet

managers for many of the government jurisdictions in the

South Coast area of California. NAFA’s members include

the fleet managers for many of the largest to many of the

smallest jurisdictions. NAFA’s 2,700 members collectively

are directly responsible for managing 2.7 million vehicles.

—

ee —

3

STATEMENT OF THE CASE

Amici adopt the statement of the Petitioners, except to

emphasize a few important facts the Court should consider

in reaching its final decision in this case.

The fleet industry possesses several! unique attributes

that persuaded Congress to establish, in the 1990 amend-

ments to the Clean Air Act, a federal clean-fuel vehicle

program that governed how California and other States

were to regulate fleets, if they were to be regulated at alll.

42 U.S.C. §§7401-7671q (2003). That federal program

included specific provisions that applied to certain fleets.

Congress recognized that fleets could expedite the intro-

duction of clean-fuel vehicles into the market, thereby

furthering air quality goals. Congress also understood that

those goals would be undermined if State and local gov-

ernments regulated fleets in a balkanized manner. An

appreciation of how fleets operate is thus critical to an

analysis of the Fleet Rules.’

Fleets come in many sizes and forms. Some are small

operations with just a few vehicles while others have tens

of thousands of vehicles. Some consist of a mix of vehicle

sizes (light-, medium-, and heavy-duty) while others are

uniform. Some are owned and operated by government

agencies, while others are private. Fleets may be centrally

fueled or rely upon public refueling stations. Fleets may

consist of either owned or leased vehicles. If the fleet owns

* For EPA's description of the fleet industry in the context of the

federal clean-fuel vehicle program, see generally, Clean Fuel Fleet

Credit Programs, Transportation Control Measure Exceptions, and

Related Provisions, 56 Fed. Reg. 50,196 (proposed Oct. 3, 1991) (noting

that the fleet industry “is unlike most other regulated industries

because the only common thread between [sic] members is the fact that

they own and operate fleets of vehicles.” /d.).

4

the vehicles, it typically possesses both title and registra-

tion, depending upon the nature of the vehicle’s financing.

If the fleet leases the vehicles, it typically holds registra-

tion while the lessor retains title. The fleet owner, opera-

tor, or manager may be a customer of a fleet leasing and

management firm that provides the vehicles and support

services.

The fleet leasing and management industry, which

AALA represents, and professional fleet managers, which

NAFA represents, share several characteristics that are

important here. First, fleets are mobile, not stationary,

sources. A véhicle may be in Los Angeles one day and Reno

the next.* This is particularly the case with larger fleets

that operate in interstate commerce. Because their inven-

tory is on the move, fleets face higher costs and opera-

tional difficulties if their vehicles are regulated differently

by each city in which they do business.‘ Uniformity in

regulation is particularly key with respect to vehicle

acquisition decisions, the activity which triggers the Fleet

Rules. Havoc would result if, for example, Los Angeles

compelled a fleet to acquire vehicles that operated on

compressed natural gas while Reno mandated that the

same fleet only acquire propane-fueled vehicles.

* The vehicle movement that is particularly relevant here is that

conducted by the fleet owner/operator in the management of his vehicle

stock. The operator, for example, may shift vehicles among geographic

areas in response to customer needs or business conditions. If the Fleet

Rules are upheld, local governments could regulate these intra-fleet

transfers in a conflicting manner.

* Clean Fuel Fleet Emission Standards, Conversions, and General

Provisions and Amended Heavy-Duty Averaging, Banking and Trading

Credit Accounting Regulations, 58 Fed. Reg. 32,474, 32,476 (proposed

June 10, 1993) (“the need for uniformity among state programs is very

important for fleets operating in more than one state”).

5

Second, fleets provide tangible air quality and fuel

economy benefits over general population vehicles because

fleets are managed to extract the maximum economic

value from each vehicle. Fleets generate environmental

and energy benefits in numerous ways, including:

Fleet vehicles are better maintained, on aver-

age, than general population vehicles. For eco-

nomic and other reasons, fleets ensure that

vehicles and their subsystems, such as emission

control equipment, are properly inspected and

maintained. Regular vehicle inspection and

maintenance provide numerous benefits, includ-

ing enhanced safety, improved emission perform-

ance, and better fuel economy. Properly

maintained vehicles emit less pollution and con-

sume less fuel. In contrast, general population

vehicles tend to be poorly maintained, even when

they are operated in regions of the country that

are subject to Clean Air Act requirements relat-

ing to vehicle inspection and maintenance.

Fleet vehicles are “right-sized.” Vehicle size is

an important factor in determining how much

fuel a vehicle consumes. Fleets carefully select

their vehicles to be no larger than is necessary

for the task at hand, in large measure to con-

serve fuel and thus reduce costs. In contrast, the

general population tends to acquire vehicles that

may be larger than necessary (such as sport util-

ity vehicles) or without regard to a vehicle’s fuel

economy.

Local regulations such as the Fleet Rules undermine

these benefits by creating an incentive for managed fleets

to disband in favor of driver reimbursement programs.

6

Fleets exist when the economics of vehicle acquisition,

operation, maintenance, and disposal dictate that such

decisions be made collectively in the form of a fleet. If the

economics no longer work because a local regulator tells

the fleet what vehicles to acquire, the fleet typically has

the option of reconstituting itself as a driver reimburse-

ment program. Employees in driver reimbursement

programs use their personal vehicles to conduct company

business and the company (or government agency), in

turn, reimburses its employees for work-related expenses

associated with the vehicles’ use (fuel charges, for exam-

ple). Because driver reimbursement programs rely upon

employee-provided vehicles, the environmental and energy

benefits previously provided by the managed fleet are lost.

Congress was well aware of these unique attributes of

fleets when it enacted the federal clean-fuel vehicle pro-

gram in 1990. Congress recognized that certain fleets, due

to their centralized structure and relatively high inventory

turnover, might expedite the introduction of clean-fuel

vehicles into the marketplace. That laudable environ-

mental goal would be undermined if State and local

governments imposed a patchwork of well-intentioned

local vehicle acquisition programs that made it more

economical for fleets to convert to driver reimbursement

programs.

To address that concern, Congress stipulated that if

the States were to regulate fleets’ vehicle acquisition

decisions, they could do so only by adhering to minimum

federal requirements. Congress established those re-

quirements in the Clean Air Act’s clean-fuel vehicle pro-

gram by striking a careful balance among the competing

interests of stringent federal controls, fleet autonomy, and

State implementation. The Fleet Rules disrupt that

balance.

- eee

———EEe —_—

7

SUMMARY OF ARGUMENT

Section 246 does not support enactment of the Fleet

Rules. Properly construed in the context of the entire

federal clean-fuel vehicie program in part C of title II of

the Clean Air Act, section 246 instead is a limit on State

discretion to regulate fleets. The State of California was

aware of this fact when it opted out of section 246 a decade

ago and replaced it with a non-fleet substitute program.

That opt out undercuts SCAQMD’s position that section

246 somehow supports the Fleet Rules.

Federal law makes clear that local efforts to regulate

vehicle acquisition decisions by fleets, such as the Fleet

Rules, are preempted. This conclusion follows from section

209, the Clean Air Act’s express preemption provision, the

language and legislative history of which indicate that

localities are preempted from dictating to fleets what cars

and trucks they may acquire. It also follows from section

246, a provision which separately occupies the field of fleet

vehicle acquisition programs and sets national policy that

such programs be implemented uniformly.

ARGUMENT

Petitioners have focused their attention on why the

Fleet Rules constitute preempted “standards” under

section 209(a) (42 U.S.C. § 7543(a)). Amici have lengthy

experience with the fleet program provisions under section

246 of the Clean Air Act, 42 U.S.C. § 7586, and so are

uniquely positioned to explain why the Fleet Rules are

inconsistent with and separately preempted by the Clean

Air Act’s provisions governing clean-fuel vehicles and

fleets.

8

I. THE FLEET RULES ARE INCONSISTENT

WITH SECTION 246.

The Court of Appeals adopted without comment the

District Court’s assertion that section 246 suggests con-

gressional support for local regulation of vehicle acquisi-

tion decisions by fleets:

Furthermore, [section 246] expressly recognizes

that Fleet Rules’ must be established in areas

with particularly high pollution levels, and au-

thorizes restrictions on the purchase of fleet ve-

hicles to meet clean-air standards. Specifically,

section 246 requires that “each state in which

there is located all or part of a covered area...

shall submit ... a state implementation plan re-

vision ... to establish a clean-fuel vehicle pro-

gram for fleets under this section.” Section 246

also mandates that “a specified percentage of all

new covered fleet vehicles . . . purchased by

each covered fleet operator in each covered area

shall be clean-fuel vehicles and shall use clean

alternative fuels.” It is not rational to conclude

that the CAA would authorize purchasing re-

strictions on the one hand, and prohibit them, as

a prohibited adoption of a “standard” [under sec-

tion 209], on the other.

* Although the District Court capitalized the term “Fleet Rules,” it

is unclear if the District Court was referring to SCAQMD’s Fleet Rules

or to fleet programs generally. As explained below, the Fleet Rules were

not and could not have been issued pursuant t section 246 so it would

be erroneous to conclude that the provision authorized them, as

Respondents now suggest. See Respondents’ Brief in Opposition to

Petition for Certiorari, No. 02-1343 (April 14, 2003), at 4 (“Most

significantly for purposes of the instant case, the CAA also authorizes

states to adopt clean-fuel vehicle fleet rules, which have the same effect

as the Fleet Rules in this case”) (citing section 246); id. at 16 (“Congress

not only foresaw purchase restrictions like these, it affirmatively

authorized them”) (citing section 246).

te ET cage et

9

Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist.,

158 F.Supp. 2d 1107, 1118 (C.D. Cal. 2001) (internal

citations omitted); see Engine Mfrs. Ass’n v. South Coast

Air Quality Mgmt. Dist., 309 F.3d 550, 551 (9th Cir. 2002)

(adopting District Court’s reasoning).

This interpretation misconstrues section 246 by

neglecting to examine the provision in its statutory con-

text.

A. Section 246 Is An Integral Part Of The

Federal Clean-Fuel Vehicle Program That

Was Intended To Prohibit Localities From

Regulating Fleet Vehicle Acquisition De-

cisions In A Non-Uniform Manner.

Section 246 cannot be read in isolation but must be

construed in the context of the Clean Air Act. Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 542, 549 (2001) (courts

“must give meaning to each element” of the law and are

“not at liberty to pick and choose which provisions in the

legislative scheme” they will consider). Section 246 is part

of the Clean Air Act’s clean-fuel vehicle program, a statu-

tory scheme that prohibits, not authorizes, localities from

regulating fleet vehicle acquisition decisions in a balkan-

ized manner.

Congress enacted the federal clean-fuel vehicle pro-

gram in the 1990 amendments to the Clean Air Act as part

of a new, comprehensive effort to spur the introduction of

clean-fuel vehicles into highly polluted areas around the

country, including Los Angeles. The federal program is

set forth in part C of title II of the Clean Air Act and spans

ten statutory sections: sections 241 (Definitions); 242

10

(Requirements applicable to clean-fuel vehicles); 243

(Standards for light-duty clean-fuel vehicles); 244 (Ad-

ministration and enforcement as per California stan-

dards); 245 (Standards for certain heavy-duty clean-fuel

vehicles); 246 (Centrally fueled fleets); 247 (Vehicle con-

versions); 248 (Federal agency fleets); 249 (California pilot

test program); and 250 (General provisions). 42 U.S.C.

§§ 7581-7590. Implementing regulations issued by the

U.S. Environmental Protection Agency (“EPA”) are in part

88 of title 40 of the Code of Federal Regulations.* EPA

issued separate program guidance in 1998. Clean Fuel

Fleet Program Implementation Guidance (EPA 420-R-98-

011, Aug. 1998).

This federal plan is based upon “clean-fuel vehicles,”

which Congress defined as vehicles in certain weight

classes that EPA had certified to meet specific standards.

42 U.S.C. §§ 7581(7), 7582, 7583, 7585; 40 C.F.R. Part 88

Subpart A.” Federally certified clean-fuel vehicles were to

be used in two programs: (1) a federally administered Pilot

Test Program for the State of California to demonstrate

the effectiveness of clean-fuel vehicles in controlling air

pollution (42 U.S.C. § 7589; 40 C.F.R. Part 88 Subpart B);*

and (2) a federally administered Clean Fuel Fleet Program

* See, e.g., 40 C.F.R. Part 88 Subpart A (Emission Standards for

Clean-Fuel Vehicles), Subpart B (California Pilot Test Program), and

Subpart C (Clean-Fuel Fleet Program) (2002).

’ A current list of EPA-certified clean-fuel vehicles is available at

http://www.epa.gov/otaq/cff.htm.

* The California Pilot Test Program was a federal mandate for the

production, sale and distribution of clean-fuel light-duty vehicles and

trucks to ultimate purchasers, including fleets subject to section 246. 42

U.S.C. § 7589%(cX1). The program also California to make

available clean alternative fuels for use in clean-fuel vehicles. Id.

§ 7589(cX2XA). Other States could opt into the California Pilot Test

Program under certain conditions. Id. §§ 7589(f1), (4).

11

(“CFFP”) under section 246 for certain centrelly fueled

fleets (42 U.S.C. § 7586; 40 C.F.R. Part 88 Subpart C).

The CFFP is a critical part of the federal clean-fuel

vehicle program because it provided a carefully tailored

mechanism by which “covered fleets” could be used to

spur the introduction of EPA-certified clean-fuel vehicles

into “covered areas”” that constituted many of the coun-

try’s most populated regions, including Los Angeles. 42

U.S.C. §§ 7586(a), (b). Subject to limited opt-out rights

(discussed further below), the CFFP required States

* A “covered fleet” is “10 or more motor vehicles which are owned or

operated by a single person.” 42 U.S.C. § 7581(5). Congress, and later

EPA through regulation, specified (1) how vehicle ownership or control

was to be used in the determination of a “covered fleet”; and (2) vehicle

types that were exempt, such as vehicles used for law enforcement

purposes. /d.; 40 C.F.R. § 88.302-94 (definitions of “control” and “owned

or operated, leased or otherwise controlled by such person”). A “covered

fleet vehicle” was limited to motor vehicles that (1) met EPA certifica-

tion and related standards; and (2) were in “covered fleets” that were

——. fueled or capable of being centrally fueled. 42 U.S.C.

” A “covered area” is (1) any ozone nonattainment area with a 1980

population of 250,000 or more classified as Serious, Severe or Extreme;

and (2) any carbon monoxide nonattainment area with a 1980 popula-

tion of 250,000 or more and a design value at or above 16.0 parts per

million. 42 U.S.C. § 7586(aX2). In the early 1990s, there were twenty-

two “covered areas”: (1) SCAQMD; (2) Atlanta; (3) Baltimore; (4) Baton

Rouge; (5) Beaumont-Port Arthur; (6) Boston-Lawrence-Worcester, (7)

Chicago-Gary-Lake County; (8) Denver-Boulder; (9) Paso; (10)

Greater Connecticut; (11) Houston-Galveston-Brazoria; (12) Milwaukee-

Racine; (13) New York-Northern New Jersey-Long Island; (14) Phila-

delphia-Wilmington-Trenton; (15) Providence; (16) Sacramento Metro;

(17) San Diego; (18) San Joaquin Valley; (19) Southeast Desert Modified

Air Quality Management District; (20) Springfield (Western Massachu-

setts); (21) Ventura County; and (22) Washington (District of Columbia).

Emission Standards for Clean-Fuel Vehicles and Engines, Require-

ments for Clean-Fuel Vehicle Conversions, and California Pilot Test

Program, 59 Fed. Reg. 50,042, 50,043 (Sept. 30, 1994) (to be codified at

40 C.F-.R. pt. 88).

12

(including California)" in which was locatea all or part of a

“covered area” to impose a vehicle acquisition program on

“covered fleet operators” through State Implementation

Plan (“SIP”) revisions. Id. § 7586(b); 40 C.F.R. § 88.302-94

(definition of “covered fleet operator”). The CFFP included

both light- and heavy-duty vehicles, with the latter typi-

cally equipped with diesel engines that operate on diesel

fuel. 42 U.S.C. § 7586(b).

The States’ section 246 SIPs had to satisfy numerous

prescriptive requirements that were spelled out in the

Clean Air Act, federal regulations, and EPA’s guidance

document for the fleet program.“ For example, the SIPs

had to: -

¢ be implemented by the State, not localities

such as SCAQMD, through the SIP revision

process (42 U.S.C. § 7586(a)(1));

*¢ be vehicle- and fuel-neutral by stipulating

that the “choice of clean-fuel vehicles and

clean alternative fuels shall be made by the

covered fleet operator” (Id. at § 7586(d));

" Six of the original twenty-two “covered areas” were in California.

59 Fed. Reg. supra at 50,043. In addition to California, the twenty-two

“covered areas” fell within the following States: (1) Georgia; (2) Mary-

land; (3) Louisiana; (4) Texas; (5) Massachusetts; (6) New Hampshire;

(7) Illinois; (8) Indiana; (9) Colorado; (10) Connecticut; (11) Wisconsin;

(12) New Jersey; (13) New York; (14) Delaware; (15) Pennsylvania; (16)

Rhode Island; (17) Virginia; and (18) the District of Columbia. Jd.

* Not all aspects of the CFFP were to be implemented through

SIPs. Some requirements, such as labels for heavy-duty clean-fuel

vehicles, were directly imposed on the States by EPA. 40 C.FR.

§ 88.305-94. Congress also directed EPA to issue regulations to “ensure

that certain transportation control measures including time-of-day or

day-of-week restrictions, and other similar measures that restrict

vehicle usage, do not apply to any clean-fuel vehicle that meets the

requirements of this section.” 42 U.S.C. § 7586(h); 40 C.F.R. § 88.307-

ee moe ee —_——~

° provide maximums flexibility to fleet eperators

by, for example, “taking into consideration

operational range, specialty uses, vehicle and

fuel availability, costs, safety, resale value of

vehicles and equipment and other relevant

factors” (Id. at § 7586(a)\4));

* take “all measures necessary” to make the

program “economic from the standpoint of

vehicle owners” (Id. at § 7511a(cX4XA));

¢ require fuel providers “to make clean alterna-

tive fuel available to covered fleet operators

at locations at which covered fleet vehicles

are centrally fueled” (Jd. at § 7586(e));

* include a credit program for fleet operators

(Id. at § 7586(f); 40 C.F.R. § 88.304-94);

¢ allow covered fleet operators to satisfy regu-

latory requirements through vehicle conver-

— “¥ U.S.C. § 7587; 40 C.F.R. § 88.306-

; an

* Congress defined “clean alternative fuel,” in part, as “any fuel

(including methanol, ethanol, or other alcohols (including any mixture

thereof containing 85 percent or more by volume of such alcohol with

gasoline or other fuels), reformulated gasoline, diesel, natural gas,

nae ND On, call etn & pane come Cndains

i * 42 U.S.C. §7581(2)

14

* sa percen vehicle acquisition re-

—_ > year (42 U.S.C.

§ 7586(b))."*

In a few instances, EPA granted the States discretion

to implement the federal program in a manner to meet

local needs. For example, EPA allowed the States to grant

compliance exemptions in situations where the fleet

operator was unable to acquire the necessary vehicles.

These limited grants of federal discretion did not touch

upon core-program considerations, such as vehicle- and

fuel-neutrality, that were dictated by federal law. EPA

viewed the limited amount of State flexibility under the

federal scheme as important but necessarily narrow in

scopé.”

Against the backdrop of part C of title II of the Clean

Air Act, section 246 cannot logically be read to reflect

congressional support for the Fleet Rules. Engine Mfrs.

Ass’n, 309 F.3d at 551. For example, section 246 is inextri-

cably linked to federal “clean-fuel vehicles.” The Fleet

Rules have nothing to do with “clean-fuel vehicles.” 42

U.S.C. § 7581(7).

In the State of California, section 246 is also tied to

the California Pilot Test Program under section 249, a

“ The CFFP was supposed to begin in model year 1998. 42 U.S.C.

§ 7586(b). EPA subsequently delayed the implementation date to model

year 1999 due to vehicle availability issues. Clean Fuel Fleet Programs,

63 Fed. Reg. 20,103 (April 23, 1998) (to be codified at 40 C.F.R. pt. 88).

“ See Clean Fuel Fleet Program Implementation Guidance, at 4

(EPA 420-R-98-011, Aug. 1998) (“EPA's interpretation allowing this

narrow and limited use of state discretion with regard to compliance

_ exemptions is applicable to only Section 246(aX4)”); 58 Fed. Reg. supra

at 32,476 (“after careful consideration of ... relevant CAA provisions,

EPA agreee with the concerned parties that regulations governing key

program definitions are necessary for the effective and efficient

implementation of the fleet program”).

a

———

15

—_—.

separate initiative to provide California fleets with suffi-

cient quantities of clean-fuel vehicles, including certified

cars and trucks operating on diesel fuel. 42 U.S.C. § 7589.

By limiting vehicle choice through prohibitions on the

acquisition of diesel vehicles, Fleet Rules flatly contradict

the purpose of section 249. ~

Even if section 246 could rationally be read out of

context from part C of title II of the Clean Air Act, Re-

spondents have conveniently avoided the many require-

ments of section 246 that the Fleet Rules contradict, most

notably the provision’s requirement that fleet programs be

vehicle- and fuel-neutral. It is true that Congress author-

ized fleet programs in section 246. Congress did so, how-

ever, in a prescriptive manner that stipulates in almost

excruciating detail how the States and specific localities

within those States, including the SCAQMD, could regu-

late fleet vehicle acquisition decisions. Read in full, section

246 is a limit on local fleet regulation rather than a grant

of unfettered regulatory authority to the SCAQMD.

B. The Fleet Rules’ Reliance On Section 246

Is Undermined By The State Of Califor-

nia’s Decision To Opt Out Of The Section

246 Fleet Program.

The Clean Air Act gave the States, including Califor-

nia, the right to opt out of the CFFP and replace it with a

substitute program, subject to federal approval. 42 U.S.C.

§ 75lla(cX4XB). In addition to being contingent upon

federal approval, substitute programs had to meet a two-

prong test. First, they had to consist “exclusively of provi-

sions other than those required under this chapter for the

area”; and second, they had to achieve, in EPA’s judgment,

emission reductions equivalent to those that would have

been generated by the federal clean-fuel vehicle program.

Id. Bece~se the CFFP program was separately required to

16

be implemented in the SCAQMD, th> first prong of this

two-part test prohibited California from electing, as a

substitute for the CFFP, a fleet program such as the Fleet

Rules that failed to conform to the federal scheme.”

California exercised its opt-out rights and thus never

submitted a CFFP SIP under section 246.” California

elected to use its Low Emission Vehicle (“LEV”) regula-

tions as the substitute program. The LEV program was an

acceptable substitute because it satisfied the opt-out

provision’s two-prong test. Jd. In particular, the LEV

program was not otherwise required to be implemented

in California under the Clean Air Act. Id.

This history casts the SCAQMD’s reliance on section

246 in this case in an entirely different light. Congress did

not merely, as Respondents suggest, authorize the States

“ The opt-out provision appears in the section of the Clean Air Act

dealing with general SIP requirements. 42 U.S.C. §§ 7511a(cX4\B), (d),

(e). The provision indicates that States may opt out of “all or a portion

of the clean-fuel vehicle program prescribed under part C of subchapter

II” which includes the California Pilot Test Program and the CFFP. 42

U.S.C. § 751la(cX4XB). The “portion of” language should not be

construed to allow States to dismantle the carefully prescribed federal

fleet program in section 246 by selectively implementing only those

elements that appeal to them. The opt-out provision does not refer to

“all or a portion of the clean-fuel fleet program in section 246,” and

given the numerous restrictions that Congress built into the section 246

program, it would be irrational to interpret the opt-out authority to

allow that outcome. Lorillard Tobacco Co., 533 U.S. at 542. In any

event, when California sought federal approval of its decision to opt out

faite SS, Oe Oe Ee aa on ie

entire provision, not a portion of it. It thus is too i

SCAQMD to claim that the opt-out provision somehow authorizes its

Fleet Rules.

" Conditional Approval of California’s Substitute Program for the

Clean-Fuel Fleet Program, 58 Fed. Reg. 62,532 (Nov. 29, 1993) (to be

codified at 40 C.F.R. pt. 52).

17

to regulate fleets in an open-ended manner (Engine Mfrs.

Ass'n, 309 F.3d at 551). Congress instead gave the States a

choice — either regulate fleets in the manner prescribed by

section 246, or implement a substitute program consistent

with the restrictions provided by the Clean Air Act’s opt-

out provision. 42 U.S.C. § 751la(c\4\B). California chose

the latter course a decade ago when it pledged to EPA that

the State would implement its LEV regulations in lieu of

section 246." The Fleet Rules are not part of the LEV

program and SCAQMD was, and is, bound by California’s

choice. Given that background, SCAQMD’s reliance on

section 246 to defend its Fleet Rules is ironic.

In upholding the Fleet Rules, the Court of Appeals

effectively allowed California to negate its opt-out com-

mitment to EPA. The Clean Air Act does not authorize the

States, let alone localities such as the SCAQMD that are

regulated under section 246, to change their opt-out

decision without federal oversight. Because they are the

product of a unilateral decision by a locality that circum-

vents the federal approval process for substitute programs

that Congress established for fleet vehicle acquisition

programs under section 246, the Fleet Rules are unauthor-

ized under, not supported by, the Clean Air Act.

C. The Fleet Rules Render Section 246

Meaningless.

Respondents’ interpretation of section 246 is errone-

ous because it would allow localities (including the

” When it sought EPA approval of the LEV program as a substi-

tute for the CFFP under section 246, California even discussed how its

decision would impact the SCAQMD. Conditional Approval of Califor-

nia’s Substitute Program for the Clean-Fuel Fleet Program, 58 Fed.

Reg. 27,253, 27,255 (proposed May 7, 1993).

18

SCAQMD) that were specifically regulated under that

provision to implement a fleet program that ceuflicts with

section 246. That outcome renders the provision meaning-

less. Duncan v. Walker, 533 U.S. 167, 173 (2001).

Surely if Congress had intended to allow the

SCAQMD to regulate fleets in a manner that conflicts with

section 246, Congress would have said so explicitly be-

cause such a result would have marked a striking depar-

ture from the carefully crafted federal clean-fuel vehicle

scheme under part C of title II of the Clean Air Act. The

failure of Congress, either in statutory language or legisla-

tive history, to say anything in support of local enactment

of rogue fleet programs such as the Fleet Rules reveals

Respondents’ interpretation of section 246 to be flawed.

Chisom v. Roemer, 501 U.S. 380, 396 (1991).

Il. SECTION 209 EXPRESSLY PREEMPTS

STATE AND LOCAL REGULATION OF VEHI-

CLE ACQUISITION DECISIONS BY FLEETS.

The Fleet Rules must satisfy the Supremacy Clause of

the United States Constitution, which commands that

Federal laws “shall be the supreme Law of the Land; ...

any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.

Federal preemption may be either express or implied

(Lorillard Tobacco Co., 533 U.S. at 540-541), and local

ordinances are analyzed the same as state laws (Wisconsin

Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991)).

When assessing whether a local enactment is preempted,

the courts are “not at liberty to pick and choose which

provisions in the [federal] legislative scheme” they will

consider, but instead must examine the-federal law as a

whole. Lorillard Tobacco Co., 533 U.S. at 549.

Two subsections of section 209, the relevant express

preemption provision, are at issue here:

~ a —

19

(a) No State or any political subdivision thereof

shall adopt or attempt to enforce any standard

relating to the control of emissions from new mo-

tor 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 prece-

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

registration of such motor vehicle, motor vehicle

engine, or equipment...

(d) Nothing in this part shall preclude or deny

to any State or political subdivision thereof the

right otherwise to control, regulate, or restrict

the use, operation, or movement of registered or

licensed motor vehicles.

42 U.S.C. § 7543(a), (d).

Faced with these provisions, the District Court only

analyzed the first sentence of subsection (a) and concluded

that it merely preempts local “standards” that have an

impact on auto manufacturers. “Where a state regulation

does not compel manufacturers to meet a new emissions

limit, but rather affects the purchase of vehicles, as the

Fleet Rules do, that regulation is not a standard” that is

preempted under section 209. Engine Mfrs. Ass’n, 158

F. Supp. 2d at 1118. The District Court effectively rewrote

the first sentence of section 209(a) to read: “No State or

any political subdivision thereof shall adopt or attempt to

enforce any standard (i) relating to the control of emis-

sions from new motor vehicles or new motor vehicle

engines subject to this part and (ii) imposing a burden

on manufacturers of the same” (emphasis added). This

20

judicial rewrite of section 209 was also adopted by the

Court of Appeals.

The lower courts erred in grafting a “manufacturer-

protection” limit onto the first sentence of section 209(a).

First and foremost, that is not what the sentence says. The

focus of that sentence is on State and local requirements

without regard to the entity that is regulated. It expressly

preempts State and local actions that constitute “stan-

dard[s] relating to the control of emissions” from new

motor vehicles or engines that are “subject to this part.”

The term “manufacturer” appears nowhere in section 209,

let alone the first sentence. Congress provided a definition

of “manufacturer” in section 216 (42 U.S.C. § 7550(1)) and

indicated the provisions of title II to which that definition

applied (sections 202, 203, 206, 207, and 208), notably

excluding section 209. If Congress had intended the term

“manufacturer” to be included or otherwise read into

section 209, it presumably would have said so. Chisom,

501 U.S. at 396.

Reading section 209(a) narrowly to limit federal

preemption to local regulations that impact manufacturers

alone also places the subsection at odds with the remain-

der of the provision. Section 209(d), for example, preserves

the authority of State and local governments to regulate

the “use, operation, or movement” of registered or licensed

motor vehicles. Regulations pertaining to the “use, opera-

tion, and movement” of motor vehicles impose burdens on

vehicle purchasers, owners, and lessors, not manufactur-

ers. If section 209(a) is limited to regulations that only

burden manufacturers, section 209(d) is rendered null.

Duncan, 533 U.S. at 173-174. Section 209(d) only has

meaning if section 209(a) preempts local regulations such

as the Fleets that prohibit vehicle users from purchasing

7ase2- °°

- o- ee

21

or leasing vehicles that may otherwise be lawfully re-

quired.”

The legislative history confirms that Congress in-

tended vehicle users such as fleets to fall within the scope

of section 209. Section 209 has its roots in the 1965 Na-

tional Emission Standards Act, which authorized the

federal Department of Health & Human Services to set

national emission standards for new motor vehicles. The

1965 law was passed in response to efforts by California

and other States to regulate new motor vehicle emissions.

“ This interpretation of section 209(d) is consistent with the

reasoning of Metro Systems Corp. v. City of New York, No. 78 Civ. 6146,

1979 U.S. Dist. LEXIS 14837 (S.D.N.Y. Jan. 26, 1979) and Allway Taxi,

Inc. v. City of New York, 340 F. Supp. 1120 (S.D.N.Y.), aff’d, 468 F.2d

624 (2d Cir. 1972), two cases which upheld municipal taxi ordinances

that required vehicles to meet certain air pollution standards. The

Metro Systems court noted that the challenged regulations “only [took]

effect subsequent to and apart from the initial, all-encompassing

licensing scheme of the State of New York.” 1979 U.S. Dist. LEXIS

14837, at *14. Likewise, the Allway Taxi court cautioned that the

imposition of State emission standards immediately after a new car is

acquired and registered “would be an obvious circumvention of the

Clean Air Act and would defeat the Congressional purpose” behind

section 209. Allway Taxi, 340 F. Supp. at 1124. Metro Systems and

Allway Taxi support the uncontested proposition that section 209 does

not prohibit States from imposing certain in-use requirements on motor

vehicles at some point after the new vehicle is originally sold or leased

to the user.

In a legal opinion issued in 1972, just a few years after section 209

was enacted, EPA’s General Counsel similarly concluded that a State

vehicle regulation would only survive preemption if “a reasonable

time following initial retail sale (e.g., one year after such sale or

upon second sale, second titling, or second registration)” had passed

before the regulation took effect. U.S. EPA, General Counsel Opinion,

“Transportation Control Plans” (Aug. 11, 1972) (emphasis added). The

Fleet Rules, which prohibit fleets from acquiring new vehicles in the

first instance, do not pass this test of reasonableness.

22

When considering the 1965 law, the Senate Commit-

tee on Public Works stated that “it would be more desir-

able to have national standards rather than for each State

to have a variation in standards and requirements which

could result in chaos insofar as manufacturers, dealers,

and users are concerned.” S. Rep. No. 89-192, at 6 (1965)

(emphasis added). The Committee offered the hope that

“individual States will accept national standards rather

than additionally impose restrictions which might cause

undue and unnecessary expense to the user.” Jd. at 8

(emphasis added). Although the 1965 Act did not contain a

preemption provision, it also did not contain an express

authorization for California to continue down the path of a

separate regulatory scheme. See David P. Currie, Motor

Vehicle Air Pollution: State Authority and Federal Pre-

emption, 68 Mich. L. Rev. 1083, 1087 (1970) (hereinafter

“Motor Vehicle Air Pollution”) (“Although the pre-emption

provision was not enacted until 1967, the 1965 history is

pertinent, since several individuals indicated concern at

that time with the pre-emption problem”).

Between 1965 and 1967, several States continued to

enact legislation related to vehicle emissions. Congress

responded to these efforts by enacting the 1967 Air Quality

Act. The 1967 Act included the identical language that

appears in sections 209(a) and (d) today (then sections

208(a) and (c)). The preemption language emerged follow-

ing hearings by a subcommittee of the Senate Public

Works Committee that dealt with the “automotive problem

alone.” Motor Vehicle Air Pollution, at 1089. Because the

hearings focused on vehicle manufacturers, it is little

surprise that the legislative history reflects an emphasis

on their concerns.

Manufacturers were not Congress’ exclusive concern

in 1967 when it enacted the relevant provisions of section

209, however. Congress enacted section 209(d) (then

section 208(c)) at the same time, a provision which, as

23

explained above, affects vehicle users such as fleets, not

manufacturers. Congress intended both vehicle users and

manufacturers to fall within the scope of section 209. See

H. Rep. No. 90-728 (1967), reprinted in 1967 U.S.C.C.ALN.

1938, 1955-56 (noting that federal preemption is necessary

to preclude “chaos” to vehicle users).”

The legislative history thus does not support an

interpretation of section 209 that somehow limits that

provision’s reach to matters involving manufacturers.

Congress specifically and repeatedly referred to vehicle

“users,” a class of persons that implicitly if not explicitly

excludes manufacturers. Because fleets “use” vehicles, it is

clear that Congress intended section 209 to cover fleets as

well.

The legislative record takes on added significance here

because local, not State, regulation is involved. Congress

plainly was worried that vehicle users such as fleets would

face different and costly standards if the scope of federal

and State responsibilities was not carefully defined. Surely

if Congress was worried about conflicting vehicle user

* Upon review of these and other legislative materials, a member

poe Illinois Air Pollution Control Board wrote that section 209 was

e +

to protect the manufacturer against having to build engines

which would comply with a multiplicity of standards (Sena-

tor Muskie); to protect the vehicle owner from having

to deal with different standards in each state in

which he drives (Senator Muskie); to avoid the unneces-

sary duplication of federal standards ((HEW Deputy] Un-

dersecretary Coston); to avoid “unnecessary expense” to

the owner (the Senate Public Works Committee); and gen-

erally to avoid “chaos” and “confusion” (Thomas Mann [of

the AMA], Undersecretary Coston, and the Senate Public

Works Committee).

Motor Vehicle Air Pollution, at 1090-91 (emphasis added).

24

requirements at the State level, it also was worried about

conflicting requirements at the local level. Against that

record, it strains credibility to believe that the Fleet Rules,

which allow a local government to dictate to fleets what

vehicles they may acquire, are somehow consistent with

the legislative history of section 209.

III. SECTION 246 SEPARATELY PREEMPTS THE

FLEET RULES ON IMPLIED PREEMPTION

GROUNDS.

In a one-sentence footnote, the Court of Appeals

declined to consider whether section 246 separately

preempts the Fleet Rules on implied preemption grounds,

considerations that amici raised in their brief below.

Engine Mfrs. Ass’n, 309 F.3d at 551 n.1. The Court of

Appeals did so in reliance on Swan v. Peterson, 6 F.3d

1373, 1383 (9th Cir. 1993), cert. denied, 513 U.S. 985

(1994) for the proposition that courts generally will not

consider arguments raised on appeal only by amici.

The Court of Appeals erred in declining to consider

amici’s implied preemption arguments. “When an issue or

claim is properly before the court, the court is not limited

to the particular legal theories advanced by the parties,

but rather retains the independent power to identify and

apply the proper construction of governing law.” Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). The

meaning and application of section 246 are at issue in this

case, and thus amici’s arguments (1) were properly before

the Court of Appeals, and (2) are properly before the Court.”

* Amici’s position is unlike that of amici in New Jersey v. New

York, 523 U.S. 767, 781 n.3 (1998) There, amici took positions that the

party which they were supporting had essentially renounced. Petition-

ers here have not renounced amici’s interpretation of section 246.

(Continued on following page)

25

The District Court discussed the relationship between

section 209 and 246 when assessing whether the Fleet

Rules were preempted. Respondents similarly seek to

justify the Fleet Rules on the theory that section 246

limits the scope of express preemption under section 209.

See note 5, supra. Amici thus are not raising novel claims

that are tangential to the Court’s resolution of whether

section 209, alone or in conjunction with section 246,

preempts the Fleet Rules. Amici instead seek to bring to

the Court’s attention legal claims that are intimately

related to those already at issue — namely, that section 246

does not limit express preemption under section 209, but

instead separately and independently preempts the Fleet

Rules on implied preemption grounds.

A. Congress Occupied The Field Of Fleet Ve-

hicle Acquisition Programs.

A State or local law is preempted if the “scheme of

federal regulation [is] so pervasive as to make reasonable

the inference that Congress left no room for the States to

supplement it.” Ray v. Atlantic Richfield Co., 435 U.S. 151,

157 (1978) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)); accord City of Burbank v. Lockheed

Air Terminal, Inc., 411 U.S. 624, 633 (1973). The analysis

turns on the “peculiarities and special features of the

federal regulatory scheme in question.” City of Burbank,

411 U.S. at 638. Even if the local control is “deep-seated in

26

the police power of the States,” it is preempted in the face

of a pervasive federal scheme. Jd.

The pervasive nature of the federal clean-fuel vehicle

program (including section 246) reveals a congressional

intent to occupy the field of fleet vehicle acquisition

programs of the type at issue here. In section 246, for

example, Congress specified, in part: (1) the geographic

locations where fleets were to be regulated (specifically

including the SCAQMD); (2) the type and size of fleets

that were to be regulated; (3) the type and quantities of

vehicles those fleets were to acquire; and (4) the type of

fuels, including diesel, that would qualify for the program.

42 U.S.C. § 7586. For States such as California that

elected to opt out of the section 246 program, Congress

carefully limited that choice by (1) subjecting the State’s

opt-out decision to federal approval, and (2) prohibiting

local enactment of rogue fleet programs as a substitute for

section 246. Id. § 751la(c\4\B).

The Fleet Rules intrude upon and contradict this

pervasive federal scheme. They are not authorized under

section 246 and conflict with the provision’s procedural

and substantive requirements. They are not part of the

LEV program, California’s EPA-approved substitute for

the section 246 program. They were never reviewed or

approved by EPA, contrary to the congressional require-

ment that all section 246 substitute programs be approved

by federal authorities.

It is too late in the day for Respondents to defend the

Fleet Rules on the theory that they are shielded from field

preemption because they are based upon California's

police powers or SCAQMD’s pioneering role in air pollu-

tion matters. Amici do not question the leading role that

California and SCAQMD have played in air quality issues

over the years. However, that history is irrelevant here in

light of the fact that Congress occupied the field of fleet

27

vehicle acquisition programs no later than 1990, when

section 246 and the other provisions of the federal clean-

fuel vehicle program became law.” Additionally, this case

deals with mobile sources, an area where the federal

interest dominates over State and local concerns. City of

Burbank, 411 U.S. at 639.”

The fact that Congress occupied the field of fleet

vehicles acquisition programs no later than 1990 is consis-

tent with the continuing expansion of federal power over

local air quality matters. With each subsequent amend-

ment of the Clean Air Act, for example, Congress advanced

further into State and local matters.“ That accretion of

federal power largely explains why the Clean Air Act has

become the most complex environmental law ever enacted.

a

Any pre-1990 State of California legislation that purports to

cutherize the Fiest Rules would ttesif be preemypted.

* Similarly, in congressional testimony in 1964, Warren Dorn of

the Air Pollution Control Board, Los Angeles County Board of Supervi-

sors, revealed that he wrote to the President of the United States to

argue for greater Federal oversight of mobile sources because “neither

the county of Los Angeles nor any other agency of local government has

the legal authority” to adequately address air pollution from mobile

sources. Hearings Before a Special Subcommittee on Air & Water

Pollution, 88th Cong., at 23 (1964). This statement by a key local

28

Against that backdrop, the Court should treat with skepti-

cism Respondents’ claims that there is something inher-

ently “local” about fleet programs that places them outside

the realm of federal control.

B. The Fleet Rules Undermine Federal Pol-

icy That Fleet Vehicle Acquisition Deci-

sions Be Regulated Uniformly.

A local enactment is preempted if it conflicts with the

federal scheme. Geier v. American Honda Motor Co., 529

U.S. 861, 869-74 (2000). Conflict preemption exists when a

local ordinance “stands as an obstacle to the accomplish-

ment and execution of the full purposes and objectives of

Congress.” Hines v. Davidowitz, 312 U.S. od (1941).

Co in establishing the section program

ae io: i fleets were regulated uniformly

throughout the country.”

The Fleet Rules, which stand for spe ape oo

local governments are free to regulate vehicle acquisiti

decisions by fleets in a manner that conflicts with the

federal scheme, undermine that purpose. Indeed, under

Respondents’ interpretation of the Clean Air Act, cities

throughout the United States could regulate the same

fleet differently, a situation that would lead to untenable

results and contravene the careful policy choices regarding

fleets that Congress set forth in part C of title II of the

Clean Air Act.

The Court has not hesitated to strike down local

enactments that “aim[] precisely at the same ends” as the

Provisions and Amended Heavy-Duty Averaging, Banking and Trading

Credit Accounting Regulations, 58 Fed. Reg. 32,474 (proposed June 10,

1993).

29 7

relevant federal law. Ray, 435 U.S. at 165. Here, both

Congress and SCAQMD seek to spur the introduction of

cleaner-burning vehicles by imposing vehicle acquisition

requirements on fleets. SCAQMD does so, however, in a

manner that “[rjefuse[s] to accept the federal judgment”

about how that task was to be accomplished. Jd. In Ray,

the Court was troubled by the fact that the State of Wash-

ington sought to exclude from Puget Sound vessels that

the federal government had otherwise certified for that

use, and thus found those and related aspects of the State

law to be preempted. Jd. Similarly here, the SCAQMD (1)

prohibits fleets from acquiring vehicles that meet all other

applicable federal standards, and (2) regulates fleets in a

manner that violates section 246. Because the Fleet Rules

thus conflict with the approach for fleet regulation set

forth by Congress, they are preempted.

CONCLUSION

The decision of the Court of Appeals should be re-

versed because the Fleet Rules are expressly preempted by

section 209, a provision that shields fleets from local

regulation of their vehicle acquisition decisions. Nothing

in section 246 limits the scope of federal preemption of the

Fleet Rules or supports their enactment. The Fleet Rules

instead violate section 246’s prescriptive procedural and

substantive requirements.

Alternatively, the decision of the Court of Appeals

should be remanded to address why section 246 separately

preempts the Fleet Rules on implied preemption grounds.

In enacting section 246, Congress occupied the field of

vehicle acquisition programs for fleets. The Fleet Rules

30

intrude upon that domain and frustrate federal policy that

fleets be regulated uniformly, if at all.

Respectfully submitted,

Kipp A. CODDINGTON, Esq.

(Counsel of Record)

ALSTON & BIRD |

601 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2601

(202) 756-3300

PAuL C. SMITH, Esq.

310 Mill Road

Falmouth, MA 02540

(508) 495-0129

Counsel for Amici Curiae

August 29, 2003