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

po

: Supreme Court, U.S.

oe FILED

i AUG 29 2003

No. 02-1343

LERK

IN THE

Supreme Court of the Gnited States

' ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

v.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit .

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

ROBIN S. CONRAD CATHERINE E. STETSON*

NATIONAL CHAMBER CHRISTOPHER T. HANDMAN

LITIGATION CENTER, INC. CHANEL A. REEDY

1615 H Street, N.W. HOGAN & HARTSON L.L.P.

Washington, D.C. 20062 555 Thirteenth Street, N.W.

(202) 463-5337 Washington, D.C. 20004

(202) 637-5491

*Counsel of Record " Counsel for Amicus Curiae

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

suet TABLE OF CONTENTS

j a : a . “ea tt ; ; ae ‘ 7 La “i r of 7 : : TABLE OF I ce nee

is i ; i ui sy ‘4 : 4 . Z . ne i: ; > * uy STATEMENT OF INTEREST Poe ee eee SCOOT SEE

VW st S = » o

5 ‘ ate } = i i > 5 ES ss

; : = RES ne .. : , s r Pik Met ’ ; x . ARGUMENT See e ee eee ener eeeneneee Pee eee PUSS SISOS

tes ae ‘y ; + 5 ie re oe Ke ; m2 ; : | | .

eae eg ee Cees eres ce oy THE FLEET RULES ARE PREEMPTED BY

€ rh Ss ; sh ae . 3 ; ‘ 44 : ages ‘ ; THE CLEAN AIR ACT SORE E OEE E EEE THEE EEE EE EEE E EEE EEE EEE E ES

ARE atc eigen ia Gh a ; a A. Section 209 Of The Clean Air Act Ex-

popne ur ata ih | pressly Preempts Any Regulation Relating

ee | : To The Control Of Emissions From New

) ee: ) 1. The Text Of Section 209 Plainly Ap-

plies To The Fleet Rules................0000000

2. The Fleet Rules Are Regulations “Re-

rhe AS | lating To” The Control Of Emissions .....

3. Section 209’s Structure Likewise Sup-

ports The Conclusion That The Fleet

4. The Legislative History Of Section

209 Further Confirms Congress’s Ex-

B. The Fleet Rules Conflict With The Pur-

il

TABLE OF CONTENTS—Continued

Page

C. Congress Has Indicated An Intent To Oc-

cupy The Entire Field Of Regulation Re-

lating To Emissions From New Motor

VGRIIO EEE .....cccececessosestennnesesenineeensaiinnninnnnnnnnnn 23

D. The Ninth Circuit’s Careless Decision

Should Be Reversed, Lest It Become The

Baseline For Analyzing An Express Pre-

GUO CHBIIER ..cecccccesssenessecenentenennmniieaiann 25

COLLIN 6...ccc:ccccrcersscssesseounnenunieieinineiieninininnnnnnnn 26

ill

TABLE OF AUTHORITIES

Page

Cases:

Alessi v. Raybestos-Manhattan, Inc., 451 U.S.

incr entnecceseneesensescnssooccceccees 14

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

a csrerccrcrcennstncsncsososocsoosee 3,

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

Supp. 1120 (S.D.N.Y.), aff'd, 468 F.2d 624

EE TT 20,21

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

LALA 2

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

i ccd ectcneenentessesneéococcseceees passim

Andrus v. Glover Constr. Co., 446 U.S. 608

TTIIaisididdindtantncindenasescsscesenecccsescceseesecesscsseece 19

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

missioner, 208 F.3d 1 (1st Cir. 2000) ...............00. 4,5,6,9

California Div. of Labor Standards Enforce-

ment v. Dillingham Constr., N.A., Inc., 519

EE 12,13,14,

California ex rel. State Air Resources Bd. v.

Department of Navy, 431 F. Supp. 1271

(N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th

16

II HII essetetnnepencnacsensencacnscnsscescsccsesesceseerecevccseoceoceeoeee 20

City of Chicago v. General Motors Corp., 467

F.26 1262 (Tila Cir. 1972)........cccerrsssvsescrsescsssscessseseeseees 24

Crosby v. National Foreign Trade Council,

Tn Ee

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

Ee saiasisdiateeianeacsonneeneee

De Buono v. NYSA-ILA Med. & Clinical Servs.

I, TEI. cs cnceccssenssssscscossntocccssosoces

iV

TABLE OF AUTHORITIES—Continued

Page

Direct Auto. Imports Ass'n v. Townsley, 804

Re 8,9,24

Egelhoff v. Egelhoff ex rel. Breiner, 532 US.

Be Gee cvesnsenanesesssmmearentenistateinmnaninesiemminmnmnen ll

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

ERE GI ccnsecncnsencensenenmnmmmenseneenspiantnniamieniieaiiti 17,19,24

Engine Mfrs. Ass'n v. Huston, 190 F. Supp. 2d

922 (W.D. Tex. 2001), vacated as moot, No.

01-50819 (Sth Cir. Mar. 5, 2002).................. 8,9,10,17,24

English v. General Elec. Co., 496 U.S. 72

GIR IIIE EP sasesenvaseamineunsensenmmeneminnenntepenintainianetantinneniioninnet 3,4

Fidelity Federal Sav. & Loan Ass'n v. De la

Crosman, GSB US. 048 (BGR ccccccessccsssesescesccsscesscsscccseses 16

FMC Corp. v. Holliday, 498 U.S. 52 (1990) ............ 3,7,11

Free v. Bland, 369 U.S. 663, 666 (1962) .........cccccceeeeeees 16

Gade v. National Solid Wastes Mgmt. Ass'n,

FED Ge Gr GE commeicianaicineinianens 7

Geier v. American Honda Motor Co., 529 U.S.

BI Ge cocmesncsnssssnsereusemennnsnenintstaninieesienmtenntin 2,19

Georgia Auto. Importers Compliance Ass'n v.

Bowers, 639 F. Supp. 352 (N.D. Ga. 1986)........... 8,9,24

Healy v. Beer Inst., Inc., 491 U.S. 324 (1989)................ 22

Ingersoll-Rand Co. v. McClendon, 498 U.S.

Se UO xnsesemeneenee 3,14

Mackey v. Lanier Collection Agency & Serv.,

Bg GD GB. GP Ca cccceccensenaserscssttnssanaseneeneenee 13,15

Metropolitan Life Ins. Co. v. Massachusetts,

SIS ae CO ee ecocemnecssnienennnnsnnstniiaiennedinnenien 11,14

Morales v. Trans World Airlines, Inc., 504

es ae icrinctecescanesiniiniaiteniiniiniteeatiinnseis 10,11,12,15

v

TABLE OF AUTHORITIES—Continued

Page

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

F.2d 1095 (D.C. Cir. 1979), cert. denied, 446

ee i netenesnrenennanenenennmenees 5,10,23,24

Motor & Equipment Mfrs. Ass'n v. Nichols,

142 F.3d 449 (D.C. Cir. 1998) ........cccccesseeteeeeeeseeees 17

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

Dep't of Envil. Conservation, 17 F.3d 521

ee 24

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

Dep't of Envtl. Conservation, 79 F.3d 1298

ee 24

New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co., 514

i ee ciecemensentesenvensnssmnsscsenememans 11,13

Pension Benefit Guar. Corp. v. LTV Corp., 496

es ee ee ccnccencevenincssenssecesacemannsmemnssenenmmacscsnesas 15

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41

Fee verncnranssnaninsmmnnsneanennsnmenseneeceneseaninammenmnnneaen 11,12,14

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

a crccessncsereesinninmereemmmepnnninnmntemmnenenmenein 23

Shaw v. Delta Air Lines, Inc., 463 U.S. 85

I cossnenvecsnsssmnessesnasesensncstsensemsmensmeasessmmnaneenanmeann 11,12

Sims v. Florida, Dep't of Highway Safety &

Motor Vehicles, 862 F.2d 1449 (11th Cir.),

cert. denied, 493 U.S. 815 (1989) ..........cccc0e 7,8,9,17,24

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

GE cocsnceresnsnipuesenssnnenmnasesnesenemenesonanianennmsenssenesseresceussen 2

United States v. Locke, 529 U.S. 89 (2000) .........cccccccceeeee 2

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

a Ie crnmsccermeesemesiepimmnmmenee 23,24

vi

TABLE OF AUTHORITIES—Continued

Page

Statutes:

ee Oe A cncricrnccisentonnnititonnanionieumnientinanees 11

Se ee OF PUTT cineensenremeomeneremntubennnmennnsineieinigneue 19

ee Oe HE icrsnencsrnemnesmetsnnnnnmnninnininniiiils passim

Sy iF Hee ncteerecenenietennbanionnenimenenaienensiniintints 18

Fe als OF SI icinirrenecsenmnnanpinensnensgummeinemannei 9,17,21

Fa es Ut Wael cccitesesinnnnnnineenenneinnienninpenananeneniaiaaieae 21

Rule:

Be i ee cremerersntecencinnecennennnneeneniieemnempenennen l

Regulation:

40 C.F.R. § 85.1603(C)(2) ......erecsesereeeseseeneneneneenenenenennenes 9

IEEE GIIIIINET cevicencnnnevennsnintantnianinntntansneninnusinessienieennusiins 6

IED TIPE cdenentansrenmtennnenmmmmenniinemimmentudetnnneentin 12,13

ee 6

Legislative Materials:

H.R. Rep. No. 89-899 (1965) ............ccccccesssseeeeees 14,16,20

Be hs ees I cncsencinncsncncensensnsennsnnnnnsniaess 3,22,23

I passim

Other Authority:

Black’s Law Dictionary (Sth ed. 1979) ............cccccceeeees 11

IN THE

Supreme Court of the GAnited States

No. 02-1343

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

Vv.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST

The Chamber of Commerce of the United States of Amer-

ica is the world’s largest business federation.' It represents

an underlying membership of more than three million

' No counsel for any party authored this brief in whole or in part,

and no person or entity, other than the amicus curiae and its

members, made a monetary contribution to the preparation or

submission of this brief. S. Ct. Rule 37.6. The brief is filed with

the consent of the parties, and copies of the consent letters have

been filed with the Clerk.

2

businesses and organizations of every size, in every industrial

sector, and from every region of the country. The Chamber

has participated as amicus curiae in several hundred cases

before this Court, including numerous cases addressing the

subject of federal preemption. See, e.g., Sprietsma v. Mer-

cury Marine, 537 U.S. 51 (2002); Geier v. American Honda

Motor Co., 529 U.S. 861 (2000); United States v. Locke, 529

U.S. 89 (2000); American Airlines, Inc. v. Wolens, 513 U.S.

219 (1995).

SUMMARY OF ARGUMENT

SCAQMD’s Fleet Rules are preempted by the Clean Air

Act. The federal Act prohibits States and their political

subdivisions from adopting standards relating to the control

of emissions from new motor vehicles. That is exactly what

the Fleet Rules do: they require fleet operators operating

within the District to purchase or lease new vehicles that

comply with specific low-emissions requirements set by

SCAQMD. The Rules therefore violate the Clean Air Act’s

express preemption provision. And by introducing new,

unapproved, local emissions requirements into a largely

uniform federal regulatory scheme, the Rules also conflict

with the paramount legislative concern behind the Clean Air

Act: sparing vehicle manufacturers, retailers, and consumers

from the burdens of outfitting (and paying more for) vehicles

that must comply with a patchwork of variously demanding

emissions requirements. The Fleet Rules are therefore not

only expressly preempted by the Act; they are conflict-

preempted. And—to complete the preemption trifecta—the

Rules also intrude on an entire field that Congress has

reserved to federal regulation: the creation of emissions

standards governing new motor vehicles.

For all these reasons, the Fleet Rules are preempted.

3

ARGUMENT

THE FLEET RULES ARE PREEMPTED BY THE

CLEAN AIR ACT,

“A fundamental principle of the Constitution is that Con-

gress has the power to preempt state law.” Crosby v. Na-

tional Foreign Trade Council, 530 U.S. 363, 372 (2000).

Congress exercised that constitutional power when it enacted

the Clean Air Act: it made vehicle emissions a uniquely

federal concern, and at the same time prohibited the States

and “any political subdivision *** [from] adopt{ing] or

attempt[ing] to enforce any standard relating to the control of

emissions from new r.otor vehicles.” 42 U.S.C. § 7543(a).

The preference for national emissions standards underscores

precisely why the Constitution vests the power of preemption

in Congress: were “each State to have a variation in stan-

dards and requirements[, it] could result in chaos insofar as

manufacturers, dealers, and users are concerned.” S. Rep.

89-192, at 6 (1965).

The Fleet Rules at issue in this case fall squarely within the

broad preemptive scope of Clean Air Act. That is so whether

the Rules are analyzed under any of the three preemption

doctrines—express, conflict, or field—since none is “rigidly

distinct” from the others. Crosby, 530 U.S. at 372 n.6

(quoting English v. General Elec. Co., 496 U.S. 72, 79 n.5

(1990)). After all, the “ultimate touchstone” in preemption

analysis is not selecting a proper label, but divining congres-

sional intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

208 (1985). Whatever the label assigned, the text, structure,

and purpose of the Clean Air Act unmistakably show that the

Fleet Rules are precisely the sort of parochial regulation that

Congress intended to supersede. /ngersoll-Rand Co. v.

McClendon, 498 U.S. 133, 138 (1990); FMC Corp. v.

‘Holliday, 498 U.S. 52, 56-57 (1990). The judgment of the

Ninth Circuit upholding the Rules should be reversed.

4

A. Section 209 Of The Clean Air Act Expressly Pre-

empts Any Regulation Relating To The Control Of

Emissions From New Motor Vehicles.

When Congress has made its preemptive intent known

through explicit statutory language, this Court’s task is “an

easy one.” English, 496 U.S. at 79; CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 664 (1993). This is an easy case.

Congress’s intent to preempt state and local regulation

relating to the control of motor-vehicle emissions is plain on

the face of the Clean Air Act’s express preemption provision,

and is further confirmed by the structure and legislative

history of that statute.

1. The Text Of Section 209 Plainly Applies To The

Fleet Rules.

Section 209(a) of the Clean Air Act expressly provides:

No State or any political subdivision thereof shall

adopt or attempt to enforce any standard relating to

the control of emissions from new motor vehicles

***_ No State shall require certification, inspection,

or any other approval relating to the control of emis-

sions from any new motor vehicle * * * as condition

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

registration of such motor vehicle * * *. [42 U.S.C.

§ 7543(a).]

Each federal court of appeals to have addressed Section

209—until the Ninth Circuit below—has recognized that

Congress’s intent to preempt local emissions standards is

both express and expansive. See, e.g., American Auto. Mfrs.

Ass'n v. Cahill, 152 F.3d 196, 200 (2d Cir. 1998) (preemp-

tion under Section 209(a) occurs when a state or locality

institutes “standards relating to the control of emissions,”

construed as “regulatory measures intended to lower the leve!

of auto emissions”); Association of Int'l Auto. Mfrs., Inc. v.

Commissioner, 208 F.3d 1, 6 (1st Cir. 2000). In Cahill, for

example, the Second Circuit addressed a New York regula-

5

tion requiring automobile manufacturers to sell a certain

percentage of zero-emission vehicles (“ZEVs”) per year. As

with the Fleet Rules here, the Cahill court recognized that the

New York regulation “has no purpose other than to effect a

general reduction in emissions [and is] in the nature of a

command having a direct effect on the level of emissions.”

152 F.3d at 200. The Second Circuit therefore ruled that the

ZEV sales requirement “must be considered a standard

‘relating to the control of emissions,’ ” and thus was pre-

empted by Section 209(a). Jd.

By the same token, the First Circuit in Commissioner, 208

F.3d at 6, found a similar ZEV sales requirement in Massa-

chusetts to be an impermissible “standard[] relating to the

control of emissions.” Following the lead of the Second

Circuit, the court emphasized that Section 209(a) preemption

depends on the goal of the local regulation. Where “the very

purpose and effect of the ZEV mandates is to effect a quanti-

tative reduction in emissions,” the State regulation is neces-

sarily preempted. 208 F.3d at 7 (citations omitted and

emphasis added). See also Motor & Equipment Mfrs. Ass'n

v. EPA, 627 F.2d 1095, 1106 (D.C. Cir. 1979) (construing

“standards relating to the control of emissions” to include

efforts by a state to reduce emissions by encouraging produc-

tion of more durable emissions-related parts), cert. denied,

446 U.S. 1456 (1980).

The Ninth Circuit’s approach to Section 209(a) runs di-

rectly counter to these decisions. Respondent SCAQMD, in

its opposition to certiorari, candidly makes no pretense about

the “very purpose and effect” of its Fleet Rules: to augment

the ranks of public and private vehicle fleets in the South

Coast District with exclusively low-emission new vehicles

and thereby “reduce harmful emissions from certain motor

vehicle fleets.” Opp. 1. See also Pet. App. 15a (District

Court recognizing that Fleet Rules are “an effort to reduce

public exposure to motor vehicle pollution”). In particular,

the Rules mandate that fleet operators—a group that controls

6

a high volume of pollution-emitting vehicles within the

District—purce or lease new vehicles that satisfy specific

low-emissions standards. As in Cahill, the Fleet Rules have,

in fact, “no purpose other than to effect a general reduction in

emissions.” Cahill, 152 F.3d at 200; accord Commissioner,

208 F.3d at 7. Accordingly, by their very design, the Fleet

Rules—unmistakably “regulatory measures intended to lower

the level of auto emissions” in the South Coast Air Quality

District, see Cahill, 152 F.3d at 200—are “standards relating

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

that reason alone, preemption is warranted.”

The District Court below, in an opinion that the Ninth

Circuit adopted wholesale, conveniently brushed all this

aside by focusing not on the express language of Section

209(a) but instead on what it regarded as “Congress’s pur-

pose behind motor vehicle preemption.” Pet App. 21a. This

highly generalized characterization—tethered neither to the

Act’s text nor to its structure—led the court to conclude that

the Fleet Rules were not preempted because they did not “run

afoul of * * * the protection of manufacturers against having

to build engines in compliance with a multiplicity of stan-

dards.” Jd. Not only did the court err in elevating buried

2 There are still other ways in which the Fleet Rules violate

Section 209(a). In certain situations, the Rules require fleet

operators to obtain approval certificates from the District before

purchasing new vehicles. See, e.g., Fleet Rule 1186.1(d)(1)(B), (e)

(requiring public and private sweeper fleet operators unable to

purchase or lease alternative-fuel sweepers to obtain Technical

Infeasibility Certifications prior to purchasing or leasing new

sweepers); Fleet Rule 1196(d)(4), (e) (same rule for heavy-duty

public fleet vehicles). The Rules therefore improperly impose

“certification” requirements “relating to the control of emissions

from any new motor vehicle * * * as condition precedent to the

initial retail sale ** * of such motor vehicle”’—a category of

regulation expressly preempted by the second sentence of Section

209(a).

——_— <ee ES ee ED

7

“purpose” over plain text,> but its selective view of the Clean

Air Act’s purpose was wrong as well.

Based on its own view of the purpose behind Section 209

preemption, the District Court drew a distinction between

State vehicle-emissions standards that apply to the sale of

new vehicles and those that apply to purchases. Id. at 21a-

22a. The statute, however, draws no such distinction—“any

standards relating to the control of emissions,” whether they

target the sale or purchase of motor vehicles, are preempted.

42 U.S.C. § 7543(a) (emphasis added). But in any event,

even if the District Court were right (it was not) that Section

209’s driving purpose was to protect manufacturers “against

having to build engines in compliance with a multiplicity of

standards,” Pet. App. 21a, and even if the District Court were

right (it was not) to focus on that purpose to the exclusion of

the text, the fact remains that placing emissions restrictions

on the purchase of vehicles necessarily affects the sale of

those vehicles. To draw a line between emissions sales

(preempted) and purchases (not preempted) is, as far- as

Section 209 is concerned, truly a distinction without any

difference.

Indeed, other courts have squarely recognized that Section

209(a) preempts state regulations that impose requirements

on both the consumers who purchase vehicles and the

manufacturers that sell them. In Sims v. Florida, Dep't of

Highway Safety & Motor Vehicles, 862 F.2d 1449, 1454-55

3 See Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88,

111 (1992) (“A freewheeling judicial inquiry into whether a state

statute is in tension with federal objectives would undercut the

principle that it is Congress rather than the courts that pre-empts

state law.”) (Kennedy, J., concurring in part and concurring in

judgment); FMC Corp. v. Holliday, 498 U.S. at 57 (in determining

preemption, “(w]e begin with the language employed by Congress

and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose”) (quotations omitted).

8

(11th Cir. 1989) (en banc), cert. denied, 493 U.S. 815 (1980)

for example, the Eleventh Circuit considered a state require-

ment that owners of “gray-market” automobiles—those not

intended to be imported into the United States, and thus not

necessarily in compliance with domestic emissions stan- —

dards—demonstrate EPA certification before titling, register-

ing, or selling the vehicles. The court held that this require-

ment, which it described as “{e]nforcement of the Clean Air

Act before [the] first sale [of new motor vehicles],” was

preempted by Section 209(a). Jd. at 1455. Two other courts

have considered nearly identical regulations and have de-

cided the question the same way. See Direct Auto. Imports

Ass'n v. Townsley, 804 F.2d 1408, 1411 (Sth Cir. 1986);

Georgia Auto. Importers Compliance Ass'n v. Bowers, 639

F. Supp. 352, 356-357 (N.D. Ga. 1986).4

Furthermore, fleet composition regulations imposed on

purchasers of nonroad vehicles, akin to the SCAQMD Fieet

Rules here regulating motor vehicles, have already been

viewed as preempted under Section 209(e) of the Act, which

preempts “‘any standard or other requirement relating to the

control of emissions” of nonroad vehicles. See Engine Mfrs.

Ass'n v. Huston, 190 F. Supp. 2d 922 (W.D. Tex. 2001),

vacated as moot, No. 01-50819 (5th Cir. Mar. 5, 2002). In

Huston, the State of Texas adopted a regulation requiring

individuals operating construction machinery in the Dallas-

Fort Worth area “to have fleets with certain percentages of

machines of the most modern low-emission design as pre-

4 These courts relied on the second sentence of Section 209(a),

which prohibits states from requiring “certification, inspection or

any other approval relating to the control of emissions from any

new motor vehicle * * * as condition precedent to the initial retail

sale, titling (if any), or registration of such motor vehicle * * *.”

42 U.S.C. § 7543(a). As noted above, supra n.2, this prohibition

equally applies here, in instances where the Fleet Rules require

fleet operators to obtain approval certificates from the District as a

condition precedent to the purchase or lease of new vehicles.

9

scribed by the federal standard.” 190 F. Supp. 2d at 928.

Relying on EPA’s express preemption of “fleet average

standards” for nonroad vehicles in 40 C.F.R. § 85.1603(c)(2),

as well as on Cahill and Commissioner, the district court

found that the state rule imposed emission standards. It thus

held that the fleet composition requirement was preempted

by Section 209(e) of the Clean Air Act—which, although

worded slightly differently than Section 209(a), does not

contain any language suggesting that state law regulating

purchasers would be preempted under 209(e), but not

209(a).5

The District Court below also attempted to distinguish

Cahill and Commissioner by reading the statutory phrase

“standards relating to the control of emissions” as requiring

“numerical control[s] on new vehicles.” Pet. App. 2la. Yet

once again, the statute in no way limits emissions standards

to quantitative limits on emissions from new vehicles;

certainly no court—until now—had ever adopted such a

cramped interpretation. The Second Circuit in Cahill found

that New York’s ZEV sales requirement “d[{id] not impose

precise overall quantitative limits on levels of emissions,” but

nonetheless found preemption because the regulation had “no

purpose other than to effect a general reduction in emis-

sions.” 152 F.3d at 200.6 And the court in Huston flatly

5 Section 209(e) notably does not appear to inco-porate the

savings clause for motor vehicles, 42 U.S.C. § 7543(d)}—which

allows states to regulate the use, operation, or movement of motor

vehicles (otherwise known as “in-use controls”)—into the nonroad

vehicle provision. Significantly, however, the Huston court

dismissed Texas’s “attempt to portray [the Fleet Composition

Requirement] as merely an in-use control,” finding it to be “clearly

an aitempt by the state to control the emissions of nonroad vehicles

through a ‘standard or other requirement.’ ” 190 F. Supp. 2d at

929 (emphasis added).

© Likewise, in Sims, Townsley, and Bowers, the states had not

imposed any new emissions requirements on manufacturers; on the

10

rejected the same argument, finding preemption despite the

state’s contention that its fleet composition rule “place[d] no

technology-forcing sales restriction or sales quotas on

nonroad equipment manufacturers.” 190 F. Supp. 2d at 928.

Thus all other courts to have considered the issue have not

focused on the presence or absence of strict numerical

emissions limits, but rather on the impact the state law has on

aggregate emissions levels. Because SCAQMD’s Fleet

Rules were expressly “enacted to reduce harmful emissions

from certain motor vehicle fleets,” Opp. 1, they are pre-

empted by Section 209(a), regardless of how they do it.

2. The Fleet Rules Are Regulations “Relating To”

The Control Of Emissions.

Because Section 209 expressly prohibits political subdivi-

sions like SCAQMD from “adopt[ing] * * * any standard

relating to the control of emissions,” the question in this case

is not whether Congress intended to preempt State emissions

regulations—it clearly did—but how far Congress intended

to go. To resolve that inquiry, “the key phrase, obviously, is

‘relating to.’”” Morales v. Trans World Airlines, Inc., 504

U.S. 374, 383 (1992). For the broader the interpretation, the

less directly the Fleet Rules need regulate emissions to be

preempted.

Here, the Court’s interpretive task is straightforward. In a

long line of preemption cases focusing on statutes that

employ identical or virtually identical language, this Court

has consistently recognized that the words “relating to”

“express a broad pre-emptive purpose.” /d. at 383. Thus, in

surveying the preemptive scope of the Airline Deregulation

Act at issue in Morales—which expressly preempted state

contrary, they expressly enforced already-existing Clean Air Act

standards. And in Motor & Equipment Manufacturers, 627 F.2d at

1103, the state was simply regulating the instructions manufactur-

ers could give to purchasers—hardly a new emissions requirement,

much less a quantitative emissions requirement.

ee —_—

ll

laws or standards “relating to” airline rates—this Court

started from the premise that “[t]he ordinary meaning of

these words [“relating to”] is a broad one—‘to stand in some

relation; to have bearing or concern; to pertain; refer; to bring

into association with or connection with.” Jd. at 383

(quoting Black’s Law Dictionary 1158 (Sth ed. 1979)). From

there, the Court easily concluded that this “deliberately

expansive” clause should have a broad preemptive “sweep.”

Id. at 384.

Morales’s take on the words “relating to” was not unprece-

dented or peculiar to the ADA. In at least a dozen cases over

the past 20 years, this Court has addressed preemption under

the Employee Retirement Income Security Act, another

comprehensive federal statute that—echoing Section 209’s

preemption clause—expressly supersedes state laws “re-

late{d] to” ERISA plans. 29 U.S.C. § 1144(a). In applying

this clause to a variety of different contexts, this Court has

“observed repeatedly that this broadly worded” phrase—

“related to”—is “clearly expansive.” Egelhoff v. Egelhoff ex

rel. Breiner, 532 U.S. 141, 146 (2001). Indeed, as with the

ADA’s preemption clause at issue in Morales, this Court has

acknowledged that the “breadth of [ERISA’s] pre-emptive

reach is apparent from [its] language,” Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 96 (1983), demonstrating Con-

gress’s intent to create a preemption clause of “broad scope,”

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,

739 (1985), and “expansive sweep.” Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 47 (1987).

Of course, while “conspicuous for their breadth,” FMC

Corp., 498 U.S. at 58, “relates to” clauses obviously do not

“extend to the furthest stretch of *** indeterminacy,”

preempting laws with “ ‘only a tenuous, remote, or peripheral

connection’ ” to the statute’s purpose. New York State

Conference of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 655, 661 (1995) (citation omitted).

To give effect to Congress’s “deliberately expansive” pre-

12

emptive command, Pilot Life, 481 U.S. at 46, while at the

same time insulating peripheral state laws from unnecessary

federal preemption, this Court has identified two types of

laws that are subject to preemption for impermissibly “relat-

ing to” an area of exclusive federal concern: first, laws that

specifically “refer to” the federal interest and, second, those

that otherwise have a “connection with” the federal interest.

See, e.g., Shaw, 463 U.S. at 97 (state law “relate[s] to” an

ERISA plan and is therefore preempted “if it has a connec-

tion with, or reference to, such a plan”); California Div. of

Labor Standards Enforcement v. Dillingham Constr., N.A.,

Inc., 519 U.S. 316, 324-325 (1997) (same); Morales, 504

U.S. at 384 (same). To adapt the language of Morales to this

case, 504 U.S. at 384, because “the relevant language of the

_[Clean Air Act] is identical” to the preemptive clauses in the

ADA and ERISA, it is therefore “appropriate [for this Court]

to adopt the same standard here”: regulations issued by

political subdivisions that “refer to” or have a “connection

with” emissions standards are preempted under Section

209(a).

Whatever the outer limits of 209’s preemptive sweep, this

Court need not plot its bounds here. Cf Allis-Chalmers

Corp. v. Lueck, 471 U.S. at 220 (“The full scope of the

preemptive effect * * * [can] remain{] to be fleshed out on a

case-by-case basis.”). That is because the Fleet Rules—as

regulations that expressly refer to emissions standards and, in

SCAQMD’s own words, attempt to “reduce harmful emis-

sions from certain motor vehicle fleets,” Opp. 1—

comfortably fit within the scope of core concerns for which

Congress preserved exclusive federal control.

Indeed, the fact that the Fleet Rules expressly incorporate

and refer to vehicle-emissions standards’ is enough, by itself,

7 See, e.g., Pet. App. 16a & nn. 3-4 (Fleet Rule 1191 expressly

requires certain fleet operators “to acquire low-emitting gasoline or

13

to justify preemption. As this Court has recognized in an

analogous context, a “state statute’s express reference to

ERISA plans suffices to bring it within the federal law’s

preemptive reach.” Mackey v. Lanier Collection Agency &

Serv., Inc., 486 U.S. 825, 830 (1988). Although this Court

has since suggested that the federal interest to which the state

statute makes express reference must also be “essential to the

[state] law’s operation,” Dillingham, 519 U.S. at 325, that is

surely the case here. After all, the Fleet Rules would be

meaningless if they no longer referred to emissions stan-

dards, since their very purpose is to compel fleet operators to

purchase vehicles that satisfy specific and strict emissions

standards.

Yet regardless of whether the Fleet Rules’ express invoca-

tion of vehicle-emissions standards is enough to warrant

preemption, those repeated references demonstrate that the

Rules’ pervasive influence over emissions is no accident or

coincidence. Thus, this case is nothing like those state

regulations of general applicability that this Court has held

immune to preemption because they had “ ‘only a tenuous,

remote, or peripheral connection’ ” with an exclusive federal

interest. Travelers, 514 U.S. at 661 (citation omitted).*

Here, the Fleet Rules do not simply have some “indirect

economic effect on choices made by” fleet operators and

manufacturers. Travelers, 514 U.S. at 659. Rather, they are ©

alternative-fueled vehicles,” both of which are established emis-

sions standards).

8 See, e.g., Travelers, 514 U.S. at 659 (state law imposing sur-

charge on hospital patients insured by commercial insurers other

than Blue Cross had only “an indirect economic effect on choices

made by insurance buyers, including ERISA plans”); De Buono v.

NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 810-816

(1997) (state tax imposed on all hospitals, including those adminis-

tered by ERISA plans, not preempted); Dillingham, 519 U.S. at

330 (state law requiring all contractors to pay prevailing wage

applied generally and was not preempted).

14

quite purposefully intended to “dictate the choices” of both

constituencies. Dillingham, 519 U.S. at 334. With respect to

fleet operators, the Rules plainly leave them with no choice

other than to purchase vehicles that comply with SCAQMD’s

chosen emissions standards. And while manufacturers are

not directly targeted by the Rules, they will inevitably be

forced to modify their production schedules to satisfy the

artificial demand for low-emission vehicles created by the

Fleet Rules.

Given that the Fleet Rules have absolutely no other pur-

pose than “to reduce harmful emissions from certain motor

vehicles,” Opp. 1, the argument for preemption is even

clearer. This Court’s precedents have never required as a

condition for preemption that a state law single-mindedly

target an area of exclusive federal concern. See Jngersoll-

Rand, 498 U.S. at 139 (“a state law may ‘relate to’ a benefit

plan, and thereby be preempted, even if the law is not spe-

cifically designed to affect such plans, or the effect is only

indirect”). Thus, so long as the effect on the federal interest

was not too tenuous or remote, this Court has found pre-

empted common-law tort and contract suits, Pilot Life, 481

U.S. at 47-48, a state law requiring health-insurance plans to

cover certain mental-health expenses, Metropolitan Life, 471

U.S. at 739, and workers’ ion laws, Alessi v.

Raybestos-Manhattan, Inc., 451 U.S. 504, 525 (1981). The

Fleet Rules, by contrast, are focused on one thing only:

reducing emissions through stringent vehicle-emissions

standards. That is an area Congress expressly left to federal

control. See H.R. Rep. No. 89-899, at 5 (1965) (“The

Committee is convinced that motor vehicle exhaust control

standards on a national scale are necessary and would be of

benefit of the entire country. * * * The high rate of mobility

of automobiles suggests that anything short of nationwide

control would scarcely be adequate to cope with the motor

vehicle pollution problem.”).

15

Whether the Fleet Rules “plainly further the federal Clean

Air Act’s core purpose—to reduce pollution,” as SCAQMD

has maintained (Opp. 1), is irrelevant to whether they

impermissibly “relate to” emissions standards. As this Court

has recognized when construing both the ADA and ERISA,

those “pre-emption provision{s] * * * displace[] all state laws

that fall within its sphere, even including state laws that are

consistent with [the federal act’s] substantive requirements.”

Morales, 504 U.S. at 387 (quoting Mackey, 486 U.S. at 829)

(ellipses omitted and emphasis added). If anything, the fact

that SCAQMD’s Fleet Rules concededly touch upon “core”

emissions-stardards concerns illustrates why the Rules

clearly fall within the preemptive sweep of Section 209.

It is also too facile an analysis to assume that anything a

State—or political subdivision—does to reduce air pollution

necessarily vindicates Congress’s interests and should be

permitted. As this Court has held:

“[N]o legislation pursues its purposes at all costs.

Deciding what competing value will or will not be

sacrificed to the achievement of a particular objective

is the very essence of legislative choice—and it frus-

trates rather than effectuates legislative intent simplis-

tically to assume that whatever furthers the statute’s

primary objective must be the law.” [Pension Benefit

Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-647

(1990) (emphasis in original) (citation omitted). }

The Clean Air Act is no different. Congress’s overarching

goal in enacting it was, of course, to reduce air pollution, but

the legislature was also keenly aware that regulations must be

fashioned pragmatically so as not to strangle industry and the

economy. Section 209(a) represents Congress’s view that,

whatever incremental environmental value there would be in

allowing States and their political subdivisions to promulgate

their own emissions standards, the interests of consumers,

16

industry, and interstate commerce required a national solu-

tion.

Equally unilluminating are the usual bromides that Con-

gress should not be presumed to preempt areas of traditional

state concern. See Pet. App. 8a-9a, 24a. The presumption

against preemption of areas of “traditional” state regulation is

just that—a presumption. It is overborne where, as here,

Congress clearly intended to displace state law: “(T]he

relative importance to the State of its own law is not material

when there is a conflict with valid federal law, for the Fram-

ers of our Constitution provided that the federal law must

prevail.” Fidelity Federal Sav. & Loan Ass'n v. De la

Cuesta, 458 U.S. 141, 153 (1982) (quoting Free v. Bland,

369 U.S. 663, 666 (1962)). Thus this Court has recognized

that the mere fact that “the States traditionally regulated these

areas would not alone immunize their efforts.” Dillingham,

519 U.S. at 330. ERISA, for example, “certainly contem-

plated the pre-emption of substantial areas of traditional state

regulation.” Jd. And while States no doubt play a significant

role in regulating air pollution—both before and after the

Clean Air Act—Congress was careful to carve out vehicle-

emissions standards as a particularly federal concern. As the

House Report declared: “While the committee is cognizant

of the basic rights and responsibilities of the States for

control of air pollution, it is apparent that the establishment

of Federal standards applicable to motor vehicle emissions is

preferable to regulation by individual States.” H.R. Rep. No.

89-899, at 5. Assumptions about traditional state roles

cannot trump Congress’s clear intent to preempt state law.

3. Section 209’s Structure Likewise Supports The

Conclusion That The Fleet Rules Are Pre-

empted.

Not only does the text of Section 209 mandate express

preemption of the Fleet Rules; its structure does as well. As

noted, Section 209(a) prohibits any state or local “standards

17

relating to the control of emissions,” including “certification,

inspection, or any other approval * * * as condition precedent

to the initial retail sale, titling (if any), or registration of such

motor vehicle.” 42 U.S.C. § 7543(a). Under this provision,

then, states and localities may not regulate motor vehicle

emissions from the time of manufacture to the time of the

initial sale and registration of the new motor vehicle.

Section 209(d), however, preserves the rights of the states

and localities to regulate post-purchase activities, including

“the use, operation, or movement,” of motor vehicles in their

jurisdiction. 42 U.S.C. § 7543(d). Through this bifurcated

framework, the Clean Air Act evinces “Congress’s intent to

exclusively enforce federal emission standards relating to

new automobiles before their initial sale because the statute

specifically allows the states to regulate automobile use and

operation subsequent to the initial sale.” Sims, 862 F.2d at

1455 n.8 (quoting 42 U.S.C. § 7543(d)) (emphasis in origi-

nal); cf, Motor & Equipment Mfrs. Ass'n v. Nichols, 142 F.3d

449, 452 (D.C. Cir. 1998) (“Subchapter I of the Act is

primarily concerned with the ground rules for the implemen-

tation of these post-purchase programs by the states. Sub-

chapter II of the Act vests in the federal government the

almost exclusive responsibility for establishing automobile

emissions standards for new cars.”) (emphasis added).

Thus, once motor vehicles are no longer “new” for preemp-

tion purposes, states and localities are free to regulate post-

purchase activities, such as the “in-use regulations” preserved

for the states through Section 209(d), which the courts have

interpreted to include carpool lanes, restrictions on car use in

urban areas, and programs to limit excessive idling. See

Huston, 190 F. Supp. 2d at 929 n.5; cf Engine Mfrs. Ass'n v.

EPA, 88 F.3d 1075, 1093 (D.C. Cir. 1996). Other post-

purchase activities include motor vehicle inspection pro-

grams and transportation control programs designed to

reduce vehicle miles traveled—two examples cited by

18

SCAQMD, see Opp. at 4, for the proposition that states still

have some role in the reduction of air pollution.

There is no dispute that States may regulate the use of

existing motor vehicles within their jurisdiction. What they

simply may not do under Section 209(a) is regulate the

emissions standards for new motor vehicle sales. Yet that is

precisely what SCAQMD’s Fleet Rules do. They therefore

are preempted.

4. The Legislative History Of Section 209 Further

Confirms Congress’s Express Preemptive Intent.

The legislative history of the Clean Air Act confirms what

the text and structure already make clear: that Section 209(a)

“provides explicit Federal preemption of the power to set

standards on emissions from new motor vehicles and en-

gines.” H.R. Rep. No. 90-728, at 36 (1967) (emphasis

added). Throughout the House Report accompanying the

1967 Act—which introduced the preemption provision—the

Committee emphasized that it was imperative that Congress

establish a uniform, nationwide system of emissions regula-

tions for new motor vehicles. See, e.g., id. at 21 (“Rather

than leave [the question of the extent to which the Federal

standards should supercede state and local laws on emissions

from motor vehicles] to the uncertainties involved in litiga-

tion, the committee has agreed * * * that State laws applica-

ble to the control of emissions from new motor vehicles * * *

are superceded.”); id. at 22 (“The committee therefore

decided to provide for uniform administration of standards

for motor vehicle emissions, by providing that [ultimately,

the Administrator of the EPA] shall administer the program

of control of automotive emissions.”).

Congress saw fit to make just one discrete and limited

exception to its uniform regulatory scheme: the State of

California. See 42 U.S.C. § 7543(b)(1) (allowing limited

waiver of federal preemption for California, as long as “the

State standards will be, in the aggregate, at least as protective

eee

ee ee ge ag LOG LLL

19

of public health and welfare as applicable Federal stan-

dards”); Engine Mfrs. Ass'n v. EPA, 88 F.3d at 1079. Based

on California’s “compelling and extraordinary conditions

requir[ing] more stringent standards,” Congress expressly

authorized California—in certain circumstances not at issue

here—to deviate from an otherwise uniform system. H.R.

Rep. No. 90-728, at 21. And while Congress later amended

the statute to allow other States to replicate California’s

program if the State’s standards were “identical to the

California standards,” 42 U.S.C. § 7507, it notably author-

ized no other exceptions. Cf Andrus v. Glover Constr. Co.,

446 U.S. 608, 616-617 (1980) (“Where Congress explicitly

enumerates certain exceptions to a general prohibition,

additional exceptions are not to be implied, in the absence of

evidence of a contrary legislative intent.”’).

SCAQMD has not applied for, and has never received, a

statutory waiver of preemption for its Fleet Rules. Nor could

it, for its Fleet Rules fundamentally diverge from the feder-

ally approved California standards. See Pet. App. 23a (“The

Fleet Rules require purchasers to choose from among a

subset of previously certified California vehicles.”) (empha-

sis added). By imposing local variation in the type of motor

vehicles that may be purchased or leased in the South Coast

District, the Fleet Rules are expressly preempted by Section

209%(a).

B. The Fleet Rules Conflict With The Purposes Of

The Clean Air Act.

In addition to being expressly preempted by Section

209(a), the Fleet Rules also are preempted under elementary

principles of conflict preemption. See Geier v. American

Honda Co., 529 U.S. at 873 (local laws are preempted if they

“prevent or frustrate the accomplishment of a federal objec-

tive”). As we have explained, the Clean Air Act’s motor-

vehicle-emissions scheme has supplanted piecemeal state

regulation with exactly two choices of emissions standards—

20

national, or (again, in circumstances not applicable here)

California. SCAQMD’s attempt to supplement this scheme

through local regulation hopelessly frustrates this national

objective.

While Congress openly recognized that the states had a

valid interest in the control of air pollution, it concluded that

only California had demonstrated the requisite need and

ability to set its own motor vehicle emissions standards. See

H.R. Rep. No. 90-728, at 20 (“While the committee is

cognizant of the basic right and responsibilities of the States

for control of air pollution, it is apparent that the establish-

ment of Federal standards applicable to motor vehicle

emissions is preferable to regulation by individual States.”’)

(quoting H.R. Rep. No. 89-899, at 5); id. at 21-22 (allowing

an exception for California). Yet not even California was

granted unbridled discretion to set emissions standards; the

state must first obtain a waiver from the federal government

before promulgating new (and conflicting) emissions stan-

dards. See id. at 22.

Congress endeavored to ensure uniformity in emissions for

several reasons:

to protect the manufacturer against having to build

engines which would comply with a multiplicity of

standards; to protect the vehicle owner from having to

deal with different standards in each state in which he

drives; to avoid the unnecessary duplication of federal

standards; to avoid ‘unnecessary expense’ to the

owner; and generally to avoid ‘chaos’ and ‘confu-

sion.’ [California ex rel. State Air Resources Board

v. Department of Navy, 431 F. Supp. 1271, 1285

(N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th Cir. 1980)

(internal quotation and citation omitted). ]?

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

1120, 1124 (S.D.N.Y.) (interpreting the legislative history and text

- athe AO —

21

Of course, Congress has not deprived the States from playing

any role ai all in curbing vehicle emissions; as we have

explained, supra at 17-18, once vehicles have been manufac-

tured, sold, and registered, states may impose use-based

emissions regulations (such as carpool lane restrictions)

_ without federal approval. 42 U.S.C. § 7543(d).'° These

exceptions make sense, since they allow States a hand in

caring for their own environment while not undermining

Congress’s strong interest in ensuring that automobile

manufacturers are not subjected to a patchwork of disparate

emissions standards.

The Fleet Rules, however, frustrate Congress’s goal of

uniformity by imposing both separate emissions standards

and a separate administrative scheme for the fleet vehicles

used in the South Coast District. Indeed, the District Court’s

determination that “(t]he Rules impose no new emission

requirements on manufacturers whatsoever,” Pet. App. 21a,

is demonstrably wrong. By establishing its own require-

ments for fleet vehicles in its region, SCAQMD forces

of Section 209(a) to conclude that the purpose was “to prevent the

burden on interstate commerce which would result if, instead of

uniform standards, every state and locality were left free to impose

different standards for exhaust emission control devices for the

manufacture and sale of new cars”), aff'd, 468 F.2d 624 (2d Cir.

1972).

10 States may also adopt clean-fuel vehicle fleet rules, 42 U.S.C.

§ 7586. Notably, such regulations may only be imposed at the

state level and require federal approval. Contrary to the lower

court’s observation, SCAQMD, as a locality, would not be

permitted to obtain authorization for its own local Fleet Rules. 42

U.S.C. § 7586 (providing that “states” apply for such authoriza-

tion). Moreover, there has been no indication that the State of

California, or SCAQMD for that matter, has contemplated doing

so—especially given that California’s federally approved program

allows vehicles that SCAQMD’s Fleet Rules expressly prohibit

fleet operators in the District from purchasing or leasing.

22

manufacturers to incorporate localized standards into their

production and distribution schemes. Yet Congress has

firmly warned against this kind of a disruption to the manu-

facturing process:

The manufacture of automobiles is a complex matter,

requiring decisions to be made far in advance of their

actual execution. The ability of those engaged in the

manufacture of automobiles to obtain clear and con-

sistent answers concerning emission controls and

standards is of considerable importance so as to per-

mit economies in production. [H.R. Rep. No. 90-728,

at 21.]

More fundamentally, to sanction SCAQMD’s Fleet Rules

would invite every political subdivision in the country to

adopt its own unique set of emissions standards—whether

limited to “fleets” or otherwise. Cf Healy v. Beer Inst., Inc.,

491 U.S. 324, 340 (1989) (“{I]f Connecticut may enact a

contemporaneous affirmation statute, so may each of the

border States and, indeed, so may every other State in the

Nation.”). If, for example, another subdivision imposes

similar or even more stringent emissions standards on fleet

vehicles, an entire line of federal- and California-approved

vehicles could be phased out, without any EPA input.

Congress has censured exactly that result, noting that

“{wJhile manufacturers could meet [the problems of differing

regulations] by building vehicles that meet whichever

standard is the more stringent, this would lead to increased

costs to consumers nationwide * * *.” H.R. Rep. No. 90-

728, at 22. Given Congress’s strong desire to avoid “undue

and unnecessary expense to the user,” S. Rep. No. 89-192, at

8, such a practice cannot be tolerated.

Allowing regulations like the Fleet Rules also would likely

result in state and local governments imposing different

mixes of emissions levels on fleet vehicles within their

jurisdictions. This amalgamation of various emissions

7 come -

23

requirements and administrative schemes would conjure up

the “spectre of an anarchic patchwork of federal and state

regulatory programs [that would] create nightmares for the

manufacturers,” Motor & Equipment Mfrs. Ass'n, 627 F.2d at

1109, and result in the very “chaos insofar as manufacturers,

dealers, and users are concerned” that prompted Congress to

preempt local emissions laws in the first place. S. Rep. No.

89-192, at 6.

Whether any other political subdivision would soon follow

SCAQMD’s lead in attempting to dictate its own emissions

standards, just these Fleet Rules alone have already created

administrative and manufacturing difficulties for all entities

involved in the automotive industry. That is precisely the

sort of intolerable federal-state conflict that justifies preemp-

tion. The Fleet Rules should be invalidated.

C. Congress Has Indicated An Intent To Occupy The

Entire Field Of Regulation Relating To Emissions

From New Motor Vehicles. :

Section 209(a) expressly preempts the Fleet Rules. It also

impliedly preempts the Fleet Rules. And preemption of the

Fleet Rules is further confirmed by Congress’s intent to

exclusively occupy the new motor vehicle emissions field of

regulation.

This Court generally finds field preemption where 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,” or the Act in question “touch[es] a

field in which the federal interest is so dominant that the

federal system will be assumed to preclude enforcement of

State laws on the same subject.” Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 2301947). That is the case here.

To begin with, the Clean Air Act’s preemption scheme has

long been construed by this Court and the federal courts of

appeals as imposing federal control over the entire field of

vehicle-emissions regulation. See Washington v. General

24

Motors Corp., 406 U.S. 109, 114 (1972) (“Congress has

largely pre-empted the field with regard to ‘emissions from

new motor vehicles.’ ”’) (citing to the former codification of

Section 209(a)); Engine Mfrs. Ass'n v. EPA, 88 F.3d at 1079

(“In contrast to federally encouraged state control over

stationary sources, regulation of motor vehicle emissions had

been a principally federal project.”); Motor Vehicle Mfrs.

Ass'n v. New York State Dep't of Envtl. Conservation, 79

F.3d 1298, 1302 (2d Cir. 1996) (“In general, state regulation

of automotive tailpipe emissions is preempted by the federal

Clean Air Act.”); Motor & Equipment Mfrs. Ass'n, 627 F.2d

at 1109 (“Congress in 1967 expressed its intent to occupy the

regulatory role over emissions control to the exclusion of all

the states—all, that is, except California.”); City of Chicago

v. General Motors Corp., 467 F.2d 1262, 1264 (7th Cir.

1972) (Section 209(a) preempts the “entire field of standards

for emissions from new motor vehicles”). In fact, Congress’s

control over the field is so pervasive that courts have found

preempted not only emissions requirements directly imposed

on manufacturers, but also those imposed on consumers as

well. See Sims, 862 F.2d at 1454-55; Townsley, 804 F.2d at

1411; Huston, 190 F. Supp. 2d at 928-929; Bowers, 639 F.

Supp. at 355-357.

Events leading to the passage of the Clean Air Act make

clear that when Congress ultimately entered the field of

emissions regulation, it did so to occupy it to the exclusion of

the States. Thus, two years before enacting Section 209,

Congress had authorized federal emissions regulations

without any restrictions on the States’ involvement. Motor &

Equipment Mfrs. Ass'n, 627 F.2d at 1108. That experiment

failed. See Motor Vehicle Mfrs. Ass'n, Inc. v. New York

State Dep't of Envtl. Conservation, 17 F.3d 521, 524-525 (2d

Cir. 1994); Engine Mfrs. Ass'n, 88 F.3d at 1079; Motor &

Equipment Mfrs. Ass'n, 627 F.2d at 1109. Thus was born

Section 209(a), prohibiting the states from adopting their

own standards. See Engine Mfrs. Ass'n, 88 F.3d at 1079. As

25

we have explained, in deciding to enter the field and displace

state regulation, Congress sought to vindicate a compelling

national interest in uniform federa! regulation. See H.R. Rep.

No. 90-728, at 20-23. Aside from making a limited excep-

tion for California, Congress simply left no room for state

interference.

D. The Ninth Circuit’s Careless Decision Should Be

Reversed, Lest It Become The Baseline For Ana-

lyzing An Express Preemption Clause.

The brief for the petitioners, and those of amici associated

with the automobile industry, quite correctly emphasize the

effect of the ruling below on automobile manufacturers, fleet

owners, and buyers. The decision’s broader potential for

creating havoc in express preemption cases, however, also

should not be overlooked. In an opinion lauded as “well-

reasoned” by the Ninth Circuit and adopted by that court

without further ado, the District Court imposed on the Clean

Air Act’s express preemption clause a strained counter-

textual reading of the statute that preserved a plainly pre-

empted local emissions regulation, all in the face of compel-

ling and directly contrary precedent—not to mention com-

mon sense. This Court should not lightly tolerate the seman-

tic gymnastics that led to the decision here—e.g., a “pur-

chase” is substantively different from a “sale,” and a “stan-

dard” is not a “standard” unless it is a “numerical control.” If

upheld, those facile conclusions will spawn other equally

superficial distinctions in other preemption cases, until the

unadorned text of an express preemption clause becomes

only the jumping-off point for clever lawyers to introduce

needless confusion into plain words.

The Fleet Rules are preempted by the Clean Air Act’s

express preemption provision, every which way—expressly,

impliedly, and across the field. The Ninth Circuit's ruling to

the contrary should be reversed.

26

CONCLUSION

For the foregoing reasons, the judgment below should be

reversed.

Respectfully submitted,

ROBIN S. CONRAD CATHERINE E. STETSON*

NATIONAL CHAMBER CHRISTOPHER T. HANDMAN

LITIGATION CENTER, INC. CHANEL A. REEDY

1615 H Street, N.W. HOGAN & HARTSON L.L.P.

Washington, D.C. 20062 555 Thirteenth Street, N.W.

(202) 463-5337 Washington, D.C. 20004

(202) 637-5491

*Counsel of Record ~ Counsel for Amicus Curiae