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

Supreme Court, U.S,

FILED

No. 02-1343

Supreme Court of the United States oF tHe cree

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

v.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

AMICI CURIAE BRIEF OF AMERICAN ROAD &

TRANSPORTATION BUILDERS ASSOCIATION,

AMERICAN TRUCKING ASSOCIATIONS, INC.,

TAXICAB, LIMOUSINE & PARATRANSIT

ASSOCIATION, NATIONAL ASSOCIATION OF

HOME BUILDERS, AND CONSTRUCTION

INDUSTRY AIR QUALITY COALITION

IN SUPPORT OF PETITIONERS

ROBERT DIGGES, JR. GREG SMITH

ATA LITIGATION CENTER AMERICAN ROAD &

2200 Mill Road TRANSPORTATION

Alexandria, VA 22314 BUILDERS ASSOCIATION

(703) 838-1065 1010 Massachusetts Ave., NW

Washington, DC 20001

MARY LYNN PICKEL (202) 289-4434

NATIONAL ASSOCIATION OF

HOME BUILDERS LAWRENCE J. JOSEPH

1201 15th Street, NW Counsel of Record

Washington, DC 20005 LAWRENCE J. JOSEPH, LLC

(202) 266-8200 7918 Jones Branch Drive

Suite 600

McLean, VA 22102

August 29, 2003 (202) 669-5135

=

ee

TABLE OF CONTENTS

L. THE AIR QUALITY ACT OF 1967 CLEARLY

AND MANIFESTLY PREEMPTS STATE AND

LOCAL EMISSION STANDARDS ON MOTOR

VEHICLE MANUFACTURERS, DEALERS,

CONSUMERS, AND USERS

SUBSEQUENT AMENDMENTS REINFORCE

THE 1967 ACT’S UNAMBIGUOUS

Clean Air Act of 1970

Clean Air Act Amendments of 1977

1. Section 177 and the “Undue

2.

1. Clarifying Section 177 and the

“Undue Burden” Test Revisited

2. Section 209(e) Retains the Clear

Distinction between State and Local

Standards for Nonroad Preemption ..22

CONCLUSION

TABLE OF AUTHORITIES

Cases

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

(S.D.N.Y.), aff'd, 468 F.2d 624 (2nd Cir.1972)....... 18-19

Association of Int’! Automobile Manufacturer v. Comm'n,

208 F.3d 1, 67 (lat Cae, SGD PD .cocccsccssscsscsssensensnnmmanmanal y

Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S.

LEY | NNN nr 7, 14, 24, 25

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ...........cceeeee 21

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).......... 6

City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320

| NN 21

Coalition for Clean Air v. Southern Cal. Edison Co., 971

F.2d 219 (9th Cir. 1992), cert. denied sub nom., EPA

v. Coalition for Clean Air, 507 U.S. 950 (1993)............ 21

Consumer Product Safety Commission v. GTE Sylvania,

Brac., 447 U.S. 21GB (RSCG .ccccccesssesccstsccesensennnnnmennnnnnn 22

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)........ 6

Department of Revenue of Oregon v. ACF Indus., Inc.,

$20 UB. SSB (BGPE) cccccocorcssesesscessssssnennennenaaan 22

Egelhoff v. Egelhoff, 532 US 141 (2001) .......ccccceeesseeeeseees 11

Food & Drug Admin. v. Brown & Williamson Tobacco

Corp., S29 UB. 13D GaBBO scccccsccsscccsstncrstenssmensennnmnas 18

Geier v. American Honda Motor Co., 529 U.S. 861 (2000)

oscssasossononsssssnsonsassesossennenttinnensnisinnnniininnninnnnnnnnnEE 24, 25

Jones v. Rath Packing Co., 430 U.S. 519 (1977).......ccccseeseees 6

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)........... 6

ii

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

I esssrnens 6,9, 11, 13

Morton v. Mancari, 417 U.S. 535 (1974) ............0.. 13, 15, 18

Motor & Equipment Mfrs. Ass'n, Inc., v. Environmental

Protection Agency, 627 F.2d 1095 (D.C. Cir. 1979),

cert. denied sub nom., General Motors Corp. v.

Costle, 446 U.S. 952 (1980) .......ccccccccecceseeseeeeeees 9,12, 14

Motor Vehicle Mfrs. Ass'n v. Cahill, 152 F.3d 196 (2nd

IITs teccricriecencnnssicntncsenecsnsccesecensseseoseees 9

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

Envil. Conservation, 810 F. Supp. 1331, modified, 831

F.Supp.57 (N.D.N.Y. 1993), aff'd in part and rev'd in

part, 17 F.3d 521 (2nd Cir. 1994) 00... cccccccceseeeeeeeneenes 17

New York State Conference of Blue Cross & Blue Shield

Plans v. Travelers Insurance Co., 514 U.S. 645 (1995)

People of State of Cal. ex rel. State Air Resources Board

v. Dep't of Navy, 431 F. Supp. 1271 (N.D. Cal. 1977),

aff'd, 624 F.2d 885 (9th Cir. 1980) 00... cccccceceeeeeeeeees 16

People of State of Cal. ex rel. State Air Resources Board

v. Dep't of Navy, 624 F.2d 885 (9th Cir. 1980)............. 16

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

sn annnnNnNantatideetieeetietrneiietetninesenescecesssenssnessetecsecees 6, 13-14

SCAQMD vy. EMA, 158 F. Supp. 2d 1107 (C.D. Cal.

2001), aff'd, 309 F.3d 550 (9th Cir. 2002) ............. passim

SCAQMD v. EMA, 309 F.3d 550 (9th Cir. 2002) .............000+ 4

TRW, Inc. v. Andrews, 534 U.S. 19 (2001) ........cccccccccceeeenenees 9

United States v. Fausto, 484 U.S. 439 (1988) 0.0... 18

United States v. Locke, 529 U.S. 89 (2000)............ 6-7, 13-14

Vermont Agency of Natural Resources v. United States,

OU 18

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

SS 19

Constitutional Provisions

CO GR Bi WE S hiicicicceninel 6

Statutes

Clean Air Act, 42 U.S.C. §§ 7401-7671q (2000) .............+02+ 3

Clean Air Act § 101(a)(3), 42 U.S.C. § 7401(a)(3)............. 13

Clean Air Act § 116, 42 U.S.C. § 7416 .......ccccccccsenseeeeees 15-16

Clean Air Act § 177, 42 U.S.C. § 7507 .......cccccccesseeseees passim

Clean Air Act § 182(c)(4), 42 U.S.C. § 751 la(c)(4) ........... 23

Clean Air Act § 182(c)(4)(B), 42 U.S.C. § 751 la(c)(4\(B)

a a 24, 25

Clean Air Act, Subchapter II, 42 U.S.C. §§ 7521-7590 ......25

Clean Air Act, Subchapter II, Part A, 42 U.S.C. §§ 7521-

, 23, 25

Clean Air Act § 202(a)(3)\ii), 42 U.S.C. § 7521(a)(3 ii) ... 10

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

Clean Air Act § 209(a), 42 U.S.C. § 7543(a) ............-+. passim

Clean Air Act § 209(b), 42 U.S.C. § 7543(D) .......ccccecceeeees 4,8

Clean Air Act § 209(c), 42 U.S.C. § 7543(c) .....15, 16, 18-19

Clean Air Act § 209(e), 42 U.S.C. § 7543(e) .......... 15, 19, 22

Clean Air Act § 213, 42 U.S.C. § 7547 .......ccccccccsseneensenseenes 22

Clean Air Act § 233, 42 U.S.C. § 7573 ......cccccccseeseseneenes 15-16

Clean Air Act, Subchapter II, Part C, 42 U.S.C. §§ 7581-

a 23, 25

iv

Clean Air Act § 241(2), 42 U.S.C. § 7581(2) ....ccccccccescseseee 25

Clean Air Act § 243(e)(2), 42 U.S.C. § 7583(e)(2) ......cc00.- 24

Clean Air Act § 246, 42 U.S.C. § 7586 .............. 15, 19, 23-25

Clean Air Act § 246(b), 42 U.S.C. § 7586(b) ........cccccccceseeee 24

Clean Air Act § 246(d), 42 U.S.C. § 7586(d) ......cccccccceseeeee. 25

Clean Air Act § 246(f)(1), 42 U.S.C. § 7586(f)(1) ..cceccoeooee. 24

Clean Air Act § 246(f)(4), 42 U.S.C. § 7586(£)(4) ..oecccccooee. 24

Clean Air Act § 246(h), 42 U.SC. § 7586(h) .....c.cccccceecseesoes 25

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

SEITE iorietensertasenaneneiasesediiaiasaiaadaenitiieaiiatiaiiaesantinttiads 7,13

Clean Air Act of 1965, Pub. L. No. 89-272, 79 Stat. 992

Se bcscevecssesstenbeierndaieesainattieriiieiibiataiestaiiasiaisiltaanessicanaitiatiai 7

Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485

TET eieseinasiaempaiatacinhiatiaeidiidnilsitdeiaetiaitielab hides aatiiaiiiaal passim

Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676

ee 8, 14, 15

Clean Air Act Amendments of 1977, Pub. L. No. 95-95, |

_, © "RRS ae 14, 16

Clean Air Act Amendments of 1990, Pub. L. No. 101-549,

a iisicriiariercenesisintiesiatiiatnniartieminltcaniiis 14, 19

Legislative History

S. Rep. No. 90-403 (1967) ....cccccccccccssssseessseesssseesesneesnveenes 8, 12

H.R. Rep. No. 90-728 (1967) .....cc...ccccsssssucssssssessesseesnee 10-11

H. Conf. Rep. No. 90-916 (1967) ..vscocsssooessneesseeennneeeenses 12

H.R. Rep. No. 95-294 (1977) ...cccccccccecsssseessseesesssneees 17, 18, 21

136 Cong. Rec. $16,969 (daily ed. Oct. 27, 1990) .............. 21

Regulations

Tr 22

Vv

40 C.F.R. § 88.304 —94(c)(1)(ii)-(iii) (2002) .....oooeeeeeeseeseee 24

Cal. Code Regs. tit. 13, § 1956.8(a)(1) (2002) .......----+-s-+0 5-6

Cal. Code Regs. tit. 13, § 1960.1(g)(1) (2002) .....-.----s-s-esese 5

SCAQMD Rule 1194() ......--:s-cecssesreneesnsnsnsnennensanansnnnnansnsnnns 5

SCAQMD Rule 1196(C)(3)...-----+s:sseeesesesesnsnsnsneneensnensnsnnennnens 6

SCAQMD Rule 1196() ........-:-:0-s:seesesesesnsnsnssnsnennenensnsnsnnnnens 5

SCAQMD Rule 1196(d)(2) ....----s-s-sseeesesesesesnsneneenensnnnnensnsnens 5

Other Authorities

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE (4th ed. 2000) .........--ccseeceeesenesensensnnsnnnnnennnnns 9

64 Fed. Reg. 46,849 (Aug. 27, 1999).........-c-s-sessnenensnensnnnnes 24

IDENTITY AND INTEREST OF AMICI

CURIAE’

Amicus curiae American Road & Transportation

Builders Association (“ARTBA”), a nonprofit trade

organization, headquartered in Washington, D.C., represents

the collective interests of the U.S. transportation construction

industry before the national executive, legislative, and

judicial branches of government. As an umbrella group for

more than 5,000 members from all sectors and modes of the

transportation construction industry (including public transit,

airports, and waterways), ARTBA is the industry’s primary

advocate in environmental regulatory actions and litigation.

Amicus curiae American Trucking Associations, Inc.

(“ATA”), a nonprofit District of Columbia corporation

headquartered in Alexandria, Virginia, is the national trade

association of the trucking industry. ATA has over 1,800

direct motor carrier members and, in cooperation with state

conferences, represents more than 37,000 trucking

companies. ATA represents every type and geographical

scope of motor carrier operation in the United States,

including for-hire carriers, private carriers, leasing

companies, and others.

. Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the timely filing of all amici curiae briefs in this matter.

The parties’ letters of consent have been lodged with the Clerk of the

Court. Pursuant to Rule 37.6 of the Rules of this Court, amici curiae

state that no counsel for a party has written this brief in whole or in part

and that no person or entity, other than the amici curiae, their members,

or their counsel, has made a monetary contribution to the preparation or

submission of this brief.

Amicus curiae Taxicab, Limousine & Paratransit

Association (“TLPA”), headquartered in Kensington,

Maryland, is a nonprofit trade organization for the private

passenger transportation industry. TLPA’s membership

includes approximately 1,100 taxicab companies, executive

sedan and limousine services, airport shuttle fleets, non-

emergency medical transportation companies, and paratransit

services worldwide. TLPA is the leading information,

education, and legislative resource in the private, ground-

passenger transportation industry.

Amicus curiae National Association of Home

Builders (“NAHB”), headquartered in Washington, D.C., is a

nonprofit trade organization representing over 211,000

builder and associate members throughout the United States.

NAHB membership includes individuals and firms that

construct and supply single-family homes, as well as

apartments, condominium, commercial and industrial

properties. In addition, NAHB represents a large number of

land developers and remodelers. It is the voice of the

American shelter industry. NAHB’s goals are to promote

home ownership; foster a healthy and efficient housing

industry; and promote policies that will keep safe, decent,

and affordable housing a national priority.

Amicus curiae Construction Industry Air Quality

Coalition (““CIAQC”), headquartered in West Covina,

California, is a non-profit trade association comprised of the

four major construction and building industry associations in

Southern California: the Associated General Contractors of

California, the Building Industry Association of Southern

Southern California Contractors Association. In all, CLIAQC

represents approximately 3,300 member companies

2

throughout Southern California. CIAQC was formed in 1989

to promote the adoption and implementation of emission

reduction measures that are both cost-effective and efficient,

while minimizing adverse impacts on its construction and

building industry members. Since its inception, CLAQC has

actively participated in many of the important discussions on

howto achieve both federal and California state air quality

standards.

The rules at issue in this litigation require members

of ARTBA, ATA, and TLPA to purchase vehicles from a

more expensive and operationally burdensome subset of

vehicles than is otherwise available for purchase in

California. Moreover, if this Court affirms the decision

below, respondent South Coast Air Quality Management

District (““SCAQMD”) and other local jurisdictions

nationwide could adopt similar regulations, thereby imposing

a patchwork of additional burdens on members of ARTBA,

ATA, TLPA, NAHB, and CIAQC.

This case poses one purely legal issue: does the

federal Clean Air Act, 42 U.S.C. §§ 7401-7671q (2000)

(“FCAA”), preempt political subdivisions such as SCAQMD

from restricting the types of FCAA-certified vehicles that a

fleet operator (or any other person) may purchase?

SUMMARY OF ARGUMENT

Under FCAA § 209(a)’s sweeping language, “No

State or any political subdivision thereof shall adopt or

attempt to enforce any standard relating to the control of

emissions from new motor vehicles or new motor vehicle

engines subject to this part.” 42 U.S.C. § 7543(a) (emphasis

3

added). FCAA § 209(b) authorizes only the State of

California to seek a waiver of this preemption for California

vehicle standards that meet certain conditions. 42 U.S.C.

§ 7543(b). This broad preemption leaves no room for

political subdivisions such as SCAQMD to adopt motor

vehicle emission standards.

By lifting and reordering disparate excernis of

statutory text and legislative history, the decisions below

inappropriately narrow the preemptive scope of FEAA

§ 209. SCAQMD v. EMA, 158 F. Supp. 2d 1107 (C.D. Cal.

2001) (“SCAQMD”), aff'd, 309 F.3d 550 (9th Cir. 2002).’

By contrast, when Congress enacted FCAA § 209 in 1967, it

clearly and manifestly preempted local governments such as

SCAQMD from subjecting vehicle manufacturers, dealers,

consumers, and users to standards such as the challenged

rules. Moreover, Congress legislated in a field (namely,

automobile emission standards) without a history of state or

local involvement and carved out a special role for the one

state (California) that recently had pioneered regulation in

that field.

Further, in each post-1967 amendment, Congress

reinforced its clear distinctions between the standard-setting

available to California, the adoption of identical such

standards by other states, and the complete preemption of

local controls. Thus, nowhere has Congress repealed by

implication the clear and manifest preemption it expressly

adopted in 1967. Finally, even assuming arguendo that the

. For clarity, amici cite to the district court decision, which the

Ninth Circuit adopted in its two-sentence opinion. 309 F.3d 550 & n.1.

SCAQMD rules could survive FCAA § 209’s express

preemption, they nevertheless conflict with the FCAA’s

Clean Fuel Fleet Program, which therefore preempts them

under conflict preemption.

REGULATORY BACKGROUND

Amici adopt the facts and background from

petitioners’ brief, see Pet. Br., at 8-13, but highlight here two

specific examples to demonstrate how the SCAQMD rules

create distinct standards. First, SCAQMD Rule 1194(d)

requires certain airport ground access fleets to purchase only

vehicles that meet or exceed California’s standard for Ultra-

Low Emission Vehicles (““ULEVs”), notwithstanding that

other Californians may purchase vehicles meeting a wider

range of emissions standards. Specifically, ULEVs must

meet a nonmethane organic gas standard of 0.040

grams/mile, whereas California vehicles in the same class

lawfully may emit more than three times that amount (0.125

grams/mile). Cal. Code Regs. tit. 13, § 1960.1(g)(1) (2002). -

Second, SCAQMD Rule 1196(d) requires heavy-duty

vehicle fleet operators to purchase only vehicles that are

powered by fuels other than diesel and that meet California’s

standard for alternatively-fueled heavy-duty vehicles,

notwithstanding that other Californians may purchase diesel

vehicles and/or vehicles with higher emissions. See Cal.

Code Regs. tit. 13, § 1956.8(a)(1) (2002). Further, although

SCAQMD Rule 1196(d)(2) allows fleet operators to

purchase vehicies powered by both diesel and an alternative

fuel, the rule requires such “dual-fuel” vehicle to meet an

otherwise optional statewide emission limits for oxides of

nitrogen (currently 2.5 grams/brake horsepower-hour) in

place of the otherwise applicable California limit (currently

5

4.0 grams/brake horsepower-hour). See SCAQMD Rule

1196(c)(3); Cal. Code Regs. tit. 13, § 1956.8(a)(1).

PREEMPTION STANDARD

Under the Supremacy Clause, federal law preempts

state law whenever the two conflict. U.S. CoNsT. Art. VI, cl.

2. “State action may be foreclosed by express language in a

congressional enactment, by implication from the depth and

breadth of a congressional scheme that occupies the

legislative field, or by implication because of a conflict with

a congressional enactment.” Lorillard Tobacco Co. v. Reilly,

533 U.S. 525, 541 (2001) (citations omitted).

In determining the preemptive scope of a federal

statute, congressional intent controls. Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 516-17 (1992); United States v.

Locke, 529 U.S. 89, 106 (2000). Congressional intent may

be “explicitly stated in the [federal] statute’s language or

implicitly contained in its structure and purpose.” Jones v.

Rath Packing Co., 430 U.S. 519, 525 (1977). Where

Congress states its preemptive intent explicitly, a court’s

only task is to determine the preemptive scope of the statute.

Cipollone, 505 U.S. at 517. Preemption analysis begins with

the plain wording of the federal statute, which “necessarily

contains the best evidence of Congress’ pre-emptive intent,”

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993),

and the ordinary meaning of statutory language

presumptively expresses that intent. Morales v. Trans World

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

When Congress legislates in a field that the states

traditionally have occupied, courts will not assume

preemption “unless that was the clear and manifest purpose

of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S.

6

218, 230 (1947). As this Court recently recognized,

however, Santa Fe Elevator applies only when the states

traditionally have occupied the field and not when there is a

history of significant federal presence. Locke, 529 U.S. at

107-08 (citing Santa Fe Elevator Corp., 331 U.S. at 230);

accord Buckman Co. v. Plaintiffs’ Legal Committee, 531

U.S. 341, 347 (2001).

I. THE AIR QUALITY ACT OF 1967 CLEARLY

AND MANIFESTLY PREEMPTS STATE AND

LOCAL EMISSION STANDARDS ON MOTOR

VEHICLE MANUFACTURERS, DEALERS,

CONSUMERS, AND USERS

Congress entered the field of motor vehicle emission

controls in three phases over four years. First, in the Clean

Air Act of 1963, Congress required the Secretary of Health,

Education & Welfare to “encourage the continued efforts” of

the automotive and fuel industries to develop devices and

fuels that prevent the discharge of pollutants from

“automotive vehicles.” Pub. L. No. 88-206, § 6, 77 Stat.

392, 399 (1963). Two years later, Congress expanded the

federal presence by requiring the Secretary to promulgate

emission-control regulations for new motor vehicles. Pub. L.

No. 89-272, § 202, 79 Stat. 992 (1965) (codified as amended

at 42 U.S.C. § 7521). Finally, in the Air Quality Act of

1967, Pub. L. No. 90-148, 81 Stat. 485 (1967), Congress

further expanded the federal presence and, for the first time,

expressly preempted state and local emission-control

standards for new motor vehicles:

No State or any political subdivision thereof

shall adopt or attempt to enforce any standard

relating to the control of emissions from new

7

motor vehicles or new motor vehicle engines

subject to this title.

Pub. L. No. 90-148, § 208(a), 81 Stat. at 501 (codified at 42

U.S.C. § 7543(a)).? Because California had a uniquely

severe air quality problem, and because California recently

had pioneered vehicular air pollution controls, the 1967

amendments authorize the State of California — and only the

State of California‘ — to adopt vehicle standards and to seek a

waiver of federal preemption for those standards. S. Rep.

No. 90-403, at 33 (1967); Pub. L. No. 90-148, § 208(b), 81

Stat. at 501 (codified as amended at 42 U.S.C. § 7543(b)).

Thus, Congress clearly preempted both state and

local authority. See 42 U.S.C. § 7543(a). Where Congress

provided for a possible limited waiver of the preemption,

Congress did so only for a single state. See 42 U.S.C.

§ 7543(b). The clarity and consistency of this statutory

distinction is fundamental to the preemption analysis.

Where Congress explicitly enumerates certain

exceptions to a general prohibition, additional

exceptions are not to be implied, in the

, The Clean Air Act Amendments of 1970 recodified § 208 of the

Air Quality Act of 1967 to its current location as FCAA § 209. Pub. L.

No. 91-604, § 8(a), 84 Stat. 1676, 1976-77 (1970). For consistency,

throughout this brief, amici refer to this provision as “FCAA § 209.”

Although the statutory waiver-of-preemption language applies

generally to any state that adopted certain emission standards prior to

1966, only California had done so. S. Rep. No. 90-403, at 6, 33 (1967).

on

s sg ne a ee

absence of evidence of a contrary legislative

intent.

TRW, Inc. v. Andrews, 534 U.S. 19, 28 (2001) (quoting

Andrus v. Glover Constr. Co., 446 U.S. 608, 616 (1980)).

Thus, before Congress amended it in 1970, 1977, and 1990,

the Clean Air Act unmistakably preempted all states except

California and all political subdivisions from adopting or

enforcing any standards relating to emissions from new

motor vehicles.

As used in FCAA § 209, the term “standard” has

been held to include both a numerical limit on emissions,

Motor & Equipment Mfrs. Ass’n, Inc., v. Environmental

Protection Agency, 627 F.2d 1095, 1111-12 (D.C. Cir. 1979)

(“MEMA”), cert. denied sub nom., General Motors Corp. v.

Costle, 446 U.S. 952 (1980), and, more generally, any

“regulatory measures intended to lower . . . emissions,”

Motor Vehicle Mfrs. Ass’n v. Cahill, 152 F.3d 196, 200 (2nd

Cir. 1998).° Both fit within the plain meaning of the

statutory phrase “any standard,” see, e.g., AMERICAN

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 1690

(4th ed. 2000) (“measure of comparison for quantitative or

qualitative value; a criterion”), which provides the best

measure of congressional intent, Morales, 504 U.S. at 383.

, Accord Association of Int'l Automobile Manufacturer v.

Comm'n, 208 F.3d 1, 6-7 (1st Cir. 2000) (“AIAM”). The AJAM court

concurred with the Cahill court’s definition of “standard,” the same one

proffered by the Environmental Protection Agency (“EPA”) in an opinion

filed at the AIAM court’s request. See id (citing EPA, “Opinion on

Issues Raised by AAMA v. Massachusetts DEP,” 9-10 (Sept. 15, 1999)).

Because the SCAQMD Fleet Rules selectively adopt

a more-stringent subset of the applicable California

standards as the only SCAQMD standard applicabl: to fleet

operators, SCAQMD has created new emission standards for

those fleet operators. For example, as noted in the

Regulatory Background, supra, an airport ground access fleet

operator must meet an emission standard of 0.040

grams/mile,-notwithstanding that the statewide limit is 0.125

grams/mile. Even where they do not expressly set a

quantitative emission limit, however, the SCAQMD rules

nevertheless constitute a qualitative standard intended to

lower emissions. For example, the Fleet Rules all impose

restrictions on the type of fuel a fleet vehicle may use. See

Pet. Br., at 11-13. Fuel type, in turn, is a factor that the

Clean Air Act expressly lists as a basis for defining the

applicability of a vehicular emission standard to a particular

class or category of vehicles. 42 U.S.C. § 7521(a)(3)(ii).

To further broaden the scope of preempted state and

local regulation, Congress preempted not just any emission-

contro’ «.andard, but “any standard relating to the control of

emissions.” See 42 U.S.C. § 7543(a) (emphasis added).

Acknowledging that “relates to” preemption does not _

“extend to the furthest stretch of indeterminacy,” New York

State Conference of Blue Cross & Blue Shield Plans v.

Travelers Insurance Co., 514 U.S. 645, 655 (1995), this

Court pragmatically reviews such cases for state

requirements with a “forbidden connection” to the federal

law, considering the federal statute’s objectives and the

effect of the state requirement on the federal statute.

10

Egelhoff v. Egelhoff, 532 US 141, 147 (2001).° Given that

both SCAQMD’s rules and FCAA § 209 concern motor

vehicle emissions and (as discussed, infra) that FCAA

preemption protects users and consumers, the SCAQMD

rules all have a “forbidden connection” to FCAA § 209%(a).

Like the statutory text, the legislative history leaves

no doubt that Congress clearly and manifestly intended to

preempt state and local regulation of vehicular emission

standards:

The Congress is therefore presented directly

with the question of the extent to which the

Federal standards should supersede State and

local laws on emissions from motor

vehicles. . . . . Rather than leave this question

to the uncertainties involved in litigation, the

committee has agreed . . . that State Jaws

applicable to the control of emissions from

new motor vehicles or new motor vehicle

engines are superseded. The committee feels

that a provision such as this is necessary in

order to prevent a chaotic situation from

Although Ege/hoff concerned a Washington statute, the “relating

to” analysis applies equally « all state and local government actions that

relate to emissions. A reading that preempts only actions that

affirmatively prescribe emission rates “simply reads the words ‘relating

to’ out of the statute. Had the statute been designed to pre-empt state

law in such » limited fashion, it would have forbidden the States to

‘regulate [emissions},"” Morales, 504 U.S. at 385, rather than prohibiting

their adopting or enforcing any standard that relates to the control of

emissions.

1]

developing in interstate commerce in new

motor vehicles.

H.R. Rep. No. 90-728 (1967) (reprinted in 1967

U.S.C.C.A.N., 1956) (emphasis added).

The legislative history :» ¢ ually clear that the

FCAA’s broad preemption protects not only manufacturers,

but also dealers, consumers, and users:

[I]t would be more desirable 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.

H.R. Rep. No. 90-728 (1967) (reprinted in 1967

U.S.C.C.A.N. 1956) (citing S. Rep. No. 89-192, at 6)

(emphasis added); see also S. Rep. No. 90-403, at 33 (FCAA

preemption protects the “general consumer” from the

California standards).’ Thus, in 1967, FCAA § 209(a)

protected not only manufacturers, but also consumers, users,

and dealers under the scope of its preemption.

The decisions below emphasize that FCAA

recognizes that air pollution is primarily a state and local

: The conference committee adopted the House bill, H. Conf.

Rep. No. 90-916 (reprinted in 1967 U.S.C.C.A.N. 1986), which had

adopted the Senate bill’s preemption provisions verbatim. Compare Pub.

L. No. 90-148, § 208, $1 Stat. at 501 (§ 208 of enacted bill) with S. Rep.

403 at 81 (§ 208 of Senate Bill); see also MEMA, 627 F.2d at 1121

(discussing history).

12

responsibility. See SCAQMD, 158 F. Supp. 2d at 1111

(citing 42 U.S.C. § 7401(a)(3)). Indeed, Congress

recognized state and local primacy in the Clean Air Act of

1963. Pub. L. No. 88-206, § 1(a)(3), 77 Stat. at 393 (codified

at 42 U.S.C. § 7401(a)(3)). Against that backdrop, however,

the Air Quality Act of 1967 specifically preempted state and

local motor vehicle emission standards. Thus, the 1967

Statute represents a clear departure from the 1963 statute.

With reference to motor vehicle emissions standards,

Congress determined that federal authority would supplant

state authority, and the specific preemption from 1967

controls the general provision from 1963. See Morton v.

Mancari, 417 U.S. 535, 550-51 (1974) (“a specific statute

will not be controlled or nullified by a general one, regardless

of the priority of enactment”). Where (as here) the specific

statute postdates the general one, the point carries even more

force. See, e.g, Morales, 504 U.S. at 384-85 (the canon is

“particularly pertinent” where a specific preemption

provision post-dates a general provision that is a “relic of

the . . . no pre-emption regime”).

The decisions below also invoke the Santa Fe

Elevator presumption against preemption, which is equally

misplaced. First, as just set forth, the statute’s plain language

and its legislative history both express a clear and manifest

intent to preempt, thus rendering the Santa Fe Elevator

presumption inapposite. Second, and just as important,

however, the Santa Fe Elevator presumption applies only

where “the field which Congress is said to have pre-empted

has been traditionally occupied by the States.” Locke, 529

U.S. at 107-08 (quoting Rath Packing Co., 430 U.S. at 525).

Here, the federal government entered the field (i.e., motor

vehicle emission standards) contemporaneously with

California and more than 30 years before SCAQMD. See

13

MEMA, 627 F.2d at 1108-09 (discussing history of vehicular

emission controls). Thus, even without Congress’ clear and

manifest intent to preempt state and local motor vehicle

standards, the Santa Fe Elevator presumption would remain

inapposite by its terms. See Locke, 529 U.S. at 107-08

(citing Santa Fe Elevator Corp., 331 U.S. at 230)

(presumption applies where there is a history of state

regulation and no corresponding federal presence); accord

Buckman, 531 U.S. at 347. Put simply, Santa Fe Elevator

protects longstanding state and local laws, not dormant state

or local police power.

Il. SUBSEQUENT AMENDMENTS REINFORCE

THE 1967 ACT’S UNAMBIGUOUS

PREEMPTION

Since enacting the Air Quality Act of 1967, Congress

enacted three major amendment to the Clean Air Act, in

1970, 1977, and 1990.* Nowhere in these amendments or

their legislative histories did Congress evince the slightest

intent to undo the protections that FCAA preemption

provided to dealers, consumers, and users of motor vehicles

or to authorize /ocal imposition of standards on motor

vehicles. To the contrary, all of the post-1967 amendments

to FCAA’s preemption provisions draw the same deliberate

distinctions between broadly preempting both state and local

° Pub. L. No. 91-604, 84 Stat. 1676 (1970); Pub. L. No. 95-95, 91

Stat. 685 (1977); Pub. L. No. 101-549, 104 Stat. 2520 (1990).

14

a

ae eee tee

authority and — when making any exceptions — making

limited exceptions only for states.’

Absent Congress’ affirmative showing of an intent to

repeal the express preemption it created in 1967, the

SCAQMD rules can survive only if the original FCAA

preemption provisions are “irreconcilable” with the FCAA

as amended. Morton v. Mancari, 417 U.S. at 550 (repeal by

implication is disfavored). Far from irreconcilable, however,

the post-1967 amendments fully reinforce the preemption

that Congress clearly and manifestly enacted in 1967.

A. Clean Air Act of 1970

In the 1970 amendments, Congress enacted two

provisions relevant to the preemption of motor vehicle

standards: (1) the FCAA’s savings clause, FCAA § 116, and

(2) FCAA § 233, which preempts state and local emission

standards for aircraft and aircraft engines. Pub. L. No. 91-

604, §§ 116, 233, 84 Stat. at. 1689, 1704 (codified at 42

U.S.C. §§ 7416, 7573). Consistent with the distinction

between state and local authority in the 1967 act, both

See, e.g., 42 U.S.C. § 7543(c) (preempting state and local

authority to regulate FCAA-regulated parts during a vehicle’s useful life,

but preserving California’s authority to do so); 42 U.S.C. § 7543(e)

(preempting state and local authority over nonroad vehicle standards, but

preserving the State of California’s authority to set such standards and

authorizing other states to adopt the California standards); 42 U.S.C.

§ 7416 (preserving state and local authority generally, but not to

standards preempted by FCAA § 209); 42 U.S.C. § 7573 (preempting

state and local authority to set aircraft emission standards); 42 U.S.C.

§ 7586 (authorizing states to seek EPA approval of state fleet rules).

15

provisions also expressly distinguish between states and

political subdivisions. See 42 U.S.C. §§ 7416, 7573."

B. Clean Air Act Amendments of 1977

In the 1977 amendments, Congress enacted two

provisions relevant to the preemption of motor vehicle

standards: (1) the FCAA § 177 opt-in clause for other

nonattainment states to adopt California standards, and

(2) the “parts preemption” provision of FCAA § 209%c),

which preempts state and local governments from imposing

requirements on FCAA-regulated parts for “in-use” motor

vehicles during their “useful life.” Pub. L. No. 95-95,

§§ 129(b), 207, 91 Stat. at 750, 755, 762 (codified at 42

U.S.C. §§ 7507, 7543(c)).

1. 77 - -

FCAA § 177 authorizes states with areas not attaining

the national ambient air quality standards to adopt California

vehicle standards in lieu of the otherwise-applicable federal

standards. 42 U.S.C. § 7507. Because this provision applies

The district court deferred to a summary of congressional intent

for aircraft preemption in People of State of Cal. ex rel. State Air

Resources Board v. Dep't of Navy, 431 F. Supp. 1271, 1285 (N.D. Cal.

1977) (Navy I), aff'd, 885 (9th Cir. 1980) (Navy I). The Nuvy cases

concern a later-enacted section (42 U.S.C. § 7573) applicable to a

different type of vehicle (aircraft), where the later enactment has only

limited legislative history, Navy //, 624 F.2d at 888 n.4, and preserves the

earlier statute’s clear distinction between state and local authority.

Accordingly, amici contend that the Navy cases and the 1970 aircraft

preemption amendment cannot repeal by implication the motor-vehicle

preemption that Congress clearly and manifestly adopted in 1967.

16

to states, but not political subdivisions, it, too, preserves the

clear distinction between the authority afforded to California

the other states, and all political subdivisions.

Notwithstanding the provision’s facially clear

meaning, its legislative history has led some courts to limit

the scope of FCAA preemption to only those standards that

cause an “undue burden” on manufacturers. SCAQMD, 158

F. Supp. 2d at 1110 (citing Motor Vehicle Mfrs. Ass'n v. New

York State Dep't of Envtl. Conservation, 810 F. Supp. 1331

(N.D.N.Y. 1993)). But that legislative history cannot bear

the weight placed on it by these courts. Instead, the cited

House report simply states that FCAA § 177’s new authority

for other states to adopt California’s standards “should not

place an undue burden on vehicle manufacturers.” See H.R.

Rep. No. 95-294, at 310-11 (1977) (reprinted in 1977

U.S.C.C.A.N., 1388-89). In adopting the holding of Motor

Vehicle Mfrs. Ass'n, the district court implicitly interpreted

“should” to mean “shall” and, therefore, concluded that the

House report narrowed the preemptive scope of FCAA

§ 209(a) to only those standards that impose an “undue

burden” on manufacturers.

To the contrary, however, the House report merely

opines that states opting into the California standards “should

not” (i.e., likely will not) unduly burden manufacturers

because manufacturers already must design and produce the

same vehicles for sale in California. A single vague word in

the House report on FCAA § 177 in 1977 cannot repeal the

preemption that FCAA § 209(a) and its legislative history

already expressly provided to motor vehicle dealers,

17

consumers, and users in 1967. Morton v. Mancari, 417 U.S.

at 550."'

2. Section 209(c) Retains the Clear Distinction

between State and Local Standards for Parts

Preemption

Subsection 209(c) preempts states other than

California and all political subdivisions from regulating any

FCAA-regulated vehicle part for the part’s “useful life.” 42

U.S.C. § 7543(c). As such, this amendment retains the

earlier statutes’ clear distinctions between California, other

states, and all political subdivisions, thereby further

reinforcing that Congress did not narrow the scope of the

preemption it adopted in 1967."

Given that 1977 House report’s single vague word (namely,

“should”) can be read in harmony with the express statutory text and

express legislative history of the 1967 act, it certainly does not rise to the

level that this Court previously has found to warrant repeal by

implication. See, e.g., United States v. Fausto, 484 U.S. 439, 452-53

(1988) (allowing “repeal by implication of a legal disposition implied by

a statutory text”) (emphasis added); Vermont Agency of Natural

Resources v. United States, 529 U.S. 765, 786 & n.17 (2000) (allowing

repeal by implication to avoid a “most peculiar” result); Food & Drug

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000) (allowing subsequent and more specific statute to govern where

necessary for harmony and to avoid violating rules of common sense).

- The district court cites Aliway Taxi for the proposition that local

governments retain authority to regulate motor vehicle emissions,

provided they do not b: :den interstate commerce. SCAQMD, 158 F.

Supp. 2d at 1110 (citing Allway Taxi v. City of New York, 340 F. Supp.

1120 (S.D.N.Y.), aff'd, 468 F.2d 624 (2nd Cir.1972)). Allway Taxi held

that — because the Clean Air Act preempts standards only for new motor

(Footnote cont'd on next page)

18

i

- -

C. Clean Air Act Amendments of 1990

In the 1990 amendments, Congress enacted three

provisions relevant to the preemption of motor vehicle

standards: (1) language clarifying FCAA § 177,

(2) preemption provisions for nonroad vehicles, and (3) the

Clean Fuel Fleet Program (“CFFP”). Pub. L. No. 101-549,

§§ 229(a), 232, 104 Stat. at 2511-2529.

1. Clarifying Section 177 and the “Undue

Burden” Test Revisit

The Conference Committee added explanztory

language to the end of FCAA § 177:

Nothing in this section or in subchapter II of

this chapter shall be construed as authorizing

any such State to prohibit or limit, directly or

indirectly, the manufacture or sale of a new

motor vehicle or motor vehicle engine that is

certified in California as meeting California

standards, or to take any action of any kind to

create, or have the effect of creating, a motor

(Footnote cont'd from previous page.)

vehicles — local government could regulate vehicles after their initial

purchase. 340 F.Supp. at 1124; accord Washington v. General Motors

Corp., 406 U.S. 109, 115 n.4 (1972) (dicta). The district court failed to

recognize that the 1977 “parts preemption” amendment abrogates the

1972 holding in Allway Taxi and eliminates the residual authority of

states (other than California) and of all political subdivisions to impose

post-purchase emission controls on vehicles during their federally

regulated useful life. See 42 U.S.C. § 7543(c).

19

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”.

Pub. L. No. 101-549, § 232, 104 Stat. at 2529 (codified at 42

U.S.C. § 7507).

In reviewing this addition, the district court focused

exclusively on the “third vehicle” phrase and ignored the

balance of the amendment. See SCAQMD, 158 F. Supp. 2d

at 1119-20. Specifically, the district court ignored that the

language prohibiting states from limiting (directly or

indirectly) the manufacture of California-certified vehicles

applies equally to the sale of such vehicles. 42 U.S.C.

§ 7507. Moreover, in the text quoted above, an “or”

separates the prohibition on indirect limitations on sales from

the prohibition on third vehicles. Jd. As such, the two are

distinct proscriptions against distinct types of state actions,

and the district court erred in reducing them to a single “third

vehicle” standard. Clearly, prohibiting the purchase of a

vehicle “indirectly limits.” the sale of that vehicle.

At the center of its analysis of FCAA § 177, the

district court relies on legislative history, which it attributes

to the Senate Committee on Public Works, equating the

“third vehicle” provision to the “undue burden” test.

SCAQMD, 158 F. Supp. 2d at 1120 (quoting Senate Comm.

on Pub. Works, 103d Cong., Ist Sess., A Legislative History

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

38, Vol. 1 at 1022); see also id. at 1110 (citing Motor

Vehicle Mfrs. Ass'n v. New York State Dep’t of Envil.

Conservation, 810 F. Supp. 1331, 1337 (N.D.N.Y. 1993)).

20

ees

In fact, however, that Committee merely served as the

publisher of the bound legislative history for the 1990

amendments, and a single senator provided the district

court’s “legislative history” in a floor statement. 136 Cong.

Rec. $16,969, $16,976 (daily ed. Oct. 27, 1990) (reprinted in

Senate Comm. on Pub. Works, 103d Cong., Ist Sess., A

Legislative History of the Clean Air Act Amendments of

1990, Serial No. 103-38, Vol. 1, at 1000, 1021-23)

(statement of Sen. Baucus). In his personal statement,

Senator Baucus makes the same flawed reading of the 1977

House Report that amici discuss in Section II.B.1, supra.

Surprisingly, in an earlier Ninth Circuit ruling not

brought to the district court’s attention, substantially the

same parties as respondents litigated Coalition for Clean Air

v. Southern Cal. Edison Co., 971 F.2d 219 (9th Cir. 1992),

cert. denied sub nom., EPA v Coalition for Clean Air, 507

U.S. 950 (1993), which found the very same floor statement

entitled to “little if any weight.” 971 F.2d at 227-28. Even if

respondents had no obligation to advise the district court of

the Ninth Circuit’s ruling in their prior litigation and even if

that prior ruling does not preclude respondents’ reliance on

the previously disregarded floor statement,” the statement of

a single senator does not provide authoritative legislative

history. E.g., Chrysler Corp. v. Brown, 441 U.S. 281, 311

7 The Ninth Circuit’s 1992 decision bound SCAQMD, the Sierra

Club, and the Coalition for Clean Air. See 971 F.2d 219. Even though

respondents now include three additional parties (Communities for a

Better Environment, the Natural Resources Defense Council, and the

Planning & Conservation League), the 1992 litigation binds them toc

because they intervened as defendants to support SCAQMD’s rules. See

City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340-341 (1958).

21

(1979); Consumer Prodict Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 117 (1980).

2. Section 209(e) Retains the Clear Distinction

between State and Local Standards for

Nonroad Preemption

In 1990 for the first time, Congress added authority

for vehicular emission standards for nonroad equipment such

as construction equipment, locomotives, and farming

equipment, and preempted “any standard or other

requirement relating to the control of emissions” from

nonroad equipment. 42 U.S.C. §§ 7543(e), 7547. In doing

so, Congress again provided California with authority to seek

a waiver of preemption for certain controls, authorized other

States to adopt those California controls, and completely

preempted local controls. 42 U.S.C. § 7543(e).

Significantly, the Environmental Protection Agency

has promulgated a regulation that identifies state and local

“fleet average standards” as prohibited “standards and other

requirements” under FCAA § 209(e). See 40 C.F.R.

§ 85.1603(c)(2). As respondents noted in their opposition to

this Court’s granting a writ of certiorari, however, FCAA

§ 209(e) broadly preempts “any standard or other

requirement” relating to emission controls. Assuming (as the

phrase suggests) that the EPA-proscribed “fleet average

standards” are standards, and not other requirements, under

FCAA § 209(e), they presumptively also are standards under

FCAA § 209(a). See, e.g., Department of Revenue of Oregon

v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) (same words

in same statute presumptively share the same meaning).

22

3. Section 246 Does Not Recognize Residual State

Authority to Regulate Fleets

In the 1990 amendments, Congress established the

CFFP to require states with ozone nonattainment areas

designated as serious or worse to require certain fleet

operators to operate a carefully balanced clean-fuel fleet

program . 42 U.S.C. §§ 751 1la(c)(4), 7586. In the district

court’s view, the CFFP evpressly recognizes states’ authority

to regulate fleets, which California has delegated to

SCAQMD via the California Health & Safety Code. See

SCAQMD, 158 F. Supp. 2d at 1118. The district court -

considered it “not rational” to read the FCAA to authorize

fleet purchase restrictions under the CFFP, while expressly

preempting them as standards under FCAA § 209(a). In

amici’s view, the district court failed to consider an alternate

reading, which puts the CFFP in harmony with the express

preemption of FCAA § 209(a). Even if this Court agrees

with the district court, however, FCAA § 246 nevertheless

impliedly would preempt the SCAQMD Fleet Rules under a

conflict-preemption analysis.

By its terms, FCAA § 209(a) preempts states and

political subdivisions from adopting or enforcing standards

relating to the control of emissions subject to “this part,” 42

U.S.C. § 7543(a), with “this part” meaning Part A of Title II

of the Ciean Air Act. Part A consists of sections 202-219, 42

U.S.C. §§ 7521-7554, whereas the CFFP resides in Part C of

Title II, which consists of sections 241-250, 42 U.S.C.

§§ 7581-7590. Thus, when adopting fleet regulations

pursuant to the CFFP, a state does not violate FCAA

§ 209(a), which does not apply by its terms to standards

under Part C. On the other hand, a state adopting fleet

regulations outside the CFFP necessarily could not rely on

23

the CFFP to justify those fleet regulations, which would fall

under the express preemption of FCAA § 209(a). Further, to

the extent that they conflict with CFFP, the state regulations

also would be preempted under this Court’s conflict-

preemption jurisprudence. Geier v. American Honda Motor

Co., 529 U.S. 861, 873 (2000) (neither savings clause nor

express preemption provision bars working of “conflict

preemption”); Buckman Co. v. Plaintiffs’ Legal Committee,

531 U.S. 341, 352 (2001) (same).

Because California has opted out of the CFFP,"* it

cannot submit the SCAQMD fleet rules to EPA for approval

under the CFFP. Even if California could submit them,

however, the SCAQMD rules conflict irreconcilably with at

least five fundamental aspects of the carefully balanced

CFFP. First, the CFFP caps the maximum percentage of

heavy-duty (50%) and light-duty (70%) trucks that a state

can require a fleet operator to purchase. 42 U.S.C.

§ 7586(b). SCAQMD requires such operators to purchase

only clean-fuel vehicles (i.e., 100%). Second, the CFFP

defines a “‘clean-fuel vehicle” as a vehicle meeting the /east

stringent California-standard applicable to that class of

vehicle, 42 U.S.C. § 7583(e)(2), and requires states to

provide credits to fleet operators that purchase a higher

number of clean-fuel vehicles than the CFFP requires or that

purchase vehicles that meet emission standards more

stringent than the CFFP requires. 42 U.S.C. § 7586(f)(1),

(£)(4); accord 40 C.F.R. § 88.304—94(c)(1)(ii)-(iii) (2002).

” See 42 U.S.C. § 751 1a(c\4)(B) (authorizing states to opt out of

CFFP); 64 Fed. Reg. 46,849 (Aug. 27, 1999) (codified at 40 C.F.R.

§ 52.220(¢(201)(iMAX1) (2002) (EPA approval of California opt out).

24

The SCAQMD rules fail to do so. Third, although state and

local governments must not directly or indirectly limit the

sale of clean-fuel vehicles, 42 U.S.C. § 7507,"* the

SCAQMD rules prohibit fleet operators from purchasing

such vehicles. Fourth, the fuel-neutral CFFP defines “clean

alternative fuel” to include both reformulated gasoline and

diesel, 42 U.S.C. § 7581(2), and leaves the choice of fuel to

the fleet operator, 42 U.S.C. § 7586(d), but the SCAQMD

tules severely restrict diesel-fueled vehicles. Fifth, states

must waive state and local time-of-day and day-of-week

restrictions for clean-fuel vehicles, 42 U.SC. § 7586(h),

which the SCAQMD rules do not.

For the foregoing reasons, even if not standards, the

SCAQMD Fleet Rules conflict with the CFFP, which

therefore preempts those rules under a conflict-preemption

analysis. Geier, 529 U.S. at 873; Buckman Co., 531 U.S. at

352. Any other reading would frustrate Congress’ purpose in

the intricately balanced CFFP by allowing states to opt out of

the CFFP under 42 U.S.C. § 751 1a(c)(4)(B) and then to

15

Unlike FCAA § 209(a), which applies only to new motor

vehicles subject to Part A of Subchapter II, FCAA § 177 provides that

“Nothing in this section or in subchapter I] of this chapter shall be

construed as authorizing any such State to prohibit or limit, directly or

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

vehicle engine that is certified in California as meeting California

standards.” 42 U.S.C. § 7507 (emphasis added). Thus, FCAA § 177

applies not only to Part A, but also to the CFFP in Part C. As such, the

district court violated the express terms of FCAA § 177 by holding that

the CFFP implicitly recognizes SCAQMD’s authority to adopt purchase

restrictions, SCQAMD, 158 F.Supp 2d at 1118, when FCAA § 177

actually prohibits any indirect restrictions on sales, 42 U.S.C. § 7507.

25

submit a replacement measure that robs fleet operators of the

benefits that Congress required the states to provide.

CONCLUSION

In 1967, Congress clearly and manifestly preempted

political subdivisions such as SCAQMD from imposing

vehicle emission standards on manufacturers, consumers,

and dealers. Consistent with every amendment, Congress

preserved that preemption by expressly distinguishing

between the standard-setting authority for California, the

adoption of those California standards by other states, and

the complete preemption of local entities such as SCAQMD.

For the foregoing reasons, therefore, amici curiae

respectfully submit that FCAA § 209(a) preempts the

SCAQMD Fleet Rules.

August 29, 2003 Respectfully submitted,

MARY LYNN PICKEL GREG SMITH

National Association of American Road & Transportation

Home Builders Builders Association

1201 15th Street, NW 1010 Massachusetts Ave, NW

Washington, DC 20005 Washington, DC 20001

Tel: 202-266-8200 Tel: 202-289-4434

ROBERT DIGGES, JR. LAWRENCE J. JOSEPH’

ATA Litigation Center Lawrence J. Joseph, LLC

2200 Mill Road 7918 Jones Branch Dr., Ste. 600

Alexandria, VA 22314 McLean, VA 22102

Tel: 703-838-1065 Tel: 202-669-5135

* Counsel of Record

26