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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0643%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 246

## Text

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).

——_— 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0643%3A16. Public record. Not legal advice.