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

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ie» FILED

No. 02-1343 NOV 17 2003

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

ENGINE MANUFACTURERS ASSOCIATION Al. D

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 OF AMICUS CURIAE OF THE STATE OF

CALIFORNIA IN SUPPORT OF SOUTH COAST

AIR QUALITY MANAGEMENT DISTRICT

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MADEIROS

Solicitor General of the State of California

RICHARD M. FRANK

Chief Assistant Attorney General

THEODORA BERGER

Senior Assistant Attorney General

Cralc C. 1 HOMPSON

Supervising Deputy Attorney General

- SUSAN L. DURBIN

- Deputy Attorney General

Counsel of Record

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5475

Fax: (916) 327-2319

Counsel for California Attorney General

(Counsel Continued On Inside Cover)

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

OR CALL COLLECT (402) 342-2831

Y) wo

TERRY GODDARD

Attorney General

State of Arizona

1275 West Washington

Avenue

Phoenix, AZ 85007

THURBERT E. BAKER

Attorney General

State of Georgia

40 Capitol Square, S.W.

Atlanta, GA 30334-1300

LISA MADIGAN

Attorney General of Illinois

Office of the Illinois

Attorney General

100 W. Randolph Street,

12th Floor

Chicago, IL 60601

G. STEVEN ROWE

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333-0006

TOM REILLY

Attorney General

Office of the Attorney

General

One Ashburton Place

Boston, MA 02108

BRIAN SANDOVAL

Attorney General

Office of the Attorney

General of Nevada

100 North Carson Street

Carson City, NV 89701

PETER D. SMITH

Attorney General

Office of the Attorney

General

33 Capitol Street

Concord, NH 03301-6397

PETER C. HARVEY

Attorney General

of New Jersey

R. J. Hughes Justice

Complex

25 Market Street

P.O. Box 080

Trenton, NJ 08625

ELIOT SPITZER

Attorney General

State of New York

120 Broadway, 25th Floor

New York, NY 10271

W.A. DREW EDMONDSON

Office of the Attorney

General of Oklahoma

2300 N. Lincoln Boulevard,

Suite 112

Oklahoma City, OK

73105-4894

HARDY MYERS

Attorney General

State of Oregon

1162 Court Street N.E.

Salem, OR 97301

MICHAEL D. BEDRIN

Chief Counsel

KRISTEN M. CAMPFIELD

Assistant Counsel

Pennsylvania Department of

Environmental Protection

P.O. Box 8464

Harrisburg, PA 17105-8464

ANNABELLE RODRIGUEZ

of Justice

Commonwealth Puerto Rico

t of Justice

Office of the Solicitor

General

P.O. Box 9020192

San Juan, Puerto Rico

00902-0192

GREG ABBOTT

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711-2548

WILLIAM H. SORRELL

Attorney General

State of Vermont

109 State Street

Montpelier, VT 05609

CHRISTINE O. GREGOIRE

Attorney General

of Washington

1125 Washington Street

P.O. Box 98504-0100

Olympia, WA 98594-0100

PeGccy A. LAUTENSCHLAGER

Attorney General

Wisconsin Department

of Justice

P.O. Box 7857

Madison, WI 53707-7857

QUESTION PRESENTED

Does the Clean Air Act preempt local regulation of

specialized vehicle fleets, most of them government-owned,

requiring that fleet operators who replenish or expand

their fleets must purchase clean-fuel vehicles that are

already California-certified under the Act if such vehicles

are commercially available, where manufacturers are not

required to produce or sell any particular vehicle?

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGUMENT ....

I. THE FLEET RULES ARE NOT PREEMPTED,

BOTH BECAUSE THEY ARE REGULATIONS

OPERATING WITHIN AN AREA TRADITION-

ALLY REGULATED BY STATES AND LO-

CALITIES, AND BECAUSE THEY ADVANCE

THE PURPOSES OF THE CLEAN AIR ACT TO

IMPROVE AIR QUALITY THROUGH COOP-

A. Under Generally Applicable Preemption

Principles, the Fleet Rules Are Presumed

to be Valid and Not Preempted................

B. The Clean Air Act Gives States a Pri-

mary Role in Controlling Motor Vehicle

C. Section 116 of the Act Expresses Con-

gress’s Intent to Limit Federal Preemp-

tion and Authorize More Stringent State

I iavicnssscncnsnnesennnnsmmeassieeemenene

D. The Term “Standards Relating to the

Control of Emissions” as Used in Section

209 Refers Only to Numerical Standards,

Not Market Controls Such as the Fleet

iii

TABLE OF CONTENTS - Continued

Page

E. Section 209(a)’s Preemption Was In-

tended to Cover Only Regulations That

Control Emissions and Mandate That

Manufacturers Produce Vehicles to Meet

Them; It Embodies the Two-Car Com-

promise That Balances Clear Air with

Manufacturers’ Needs .................cccsecceeees

F. Textual Analysis of the Act Shows That

Congress Did Not Intend Section 209(a)

to Preempt All State or Local Regula-

~ tions Intended to Reduce Motor Vehicle

Emissions................. eplamnaneenenseenesevemensenes

G. The Act Does Not Preempt Controls on

ee ar ccncssniinncnciecmiinnmmnsenssintes

INNES coccensresessasspscecusseenensnensnmsscnesensemeunsnees

TABLE OF AUTIORITIES

Page

CASES

American Automobile Mfrs. Ass’n v. Cahill, 152

a —- 23

California Division of Labor Standards Enforce-

ment, et al. v. Dillingham Construction, N.A.,

Inc., et al., 519 U.S. 316 (1997).............c0ccecsesereesseees 17, 18

Chevron U.S.A., Inc. v. Natural Resources Defense 7

Council, Inc., 467 U.S. 837 (1984) ..........ccccccccceeeeseeenees 13

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).....6, 7

Connecticut v. Environmental Protection Agency;

606 F.2d 147 (2d Cir. 1962) ........cccccccccrrrrsorrrcereccsessoeees 13

Gade v. National Solid Wastes Management Asso-

ciation, 505 U.S. 88 (1992)........ccccccccccccssseseesesseseseees 8,19

Hillsborough County v. Automated Medical Labora-

tories, Inc., 471 U.S. 707 (1985)............csscccccseeeeseeeeees 7, 29

Huron Portland Cement Co. v. City of Detroit, 362

oe 7

International Automobile Manufacturers v. Com-

missioner, 208 F.3d 1 (1st Cir. 2000)...............ccccceeeeeeeees 23

Maryland v. Louisiana, 451 U.S. 725 (1981)...........ccccceeeees 6

Medtronic v. Lohr, 518 U.S. 470 (1996).............cccceeeees 6, 7,8

Michigan v. Environmental Protection Agency, 268

2 Pf of OR: > | 13

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

Ee 17

Moskal v. United States, 498 U.S. 103 (1990) ..............000+. 26

Motor and Equipment Manufacturers Association v.

EPA, 627 F.2d 1095 (D.C. Cir. 1979)............c000+ 11, 21, 22

TABLE OF AUTHORITIES -— Continued

Page

Motor Vehicle Manufacturers v. NYS Department of

Conservation, 17 F.3d 521 (2nd Cir. 1994)......... 19, 24, 27

New State Ice Co. v. Liebman, 285 U.S. 262 (1932) .......... 14

New York State Conference of Blue Cross & Blue

Shield Plans, et al. v. Travelers Insurance Co, et

a Ee es ee ictrrnrnnernenmnnneimemesneiennmenes 17, 18

New York State Department of Social Services v.

Dublino, 413 U.S. 405 (1973)................sccssesessesseseeeeeeeeees 8

Penn Dairies v. Milk Control Commission, 318 U.S..,

Ee Ct ncetnsciensesennsienmennmennteninmanseeneemmgesementets 7

Pharmaceutical Research, et al. v. Walsh, ___ US.

cent CE en > CE sme 7

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

(Eee bacieveccnensunenmanienenemmtnanieininnsneeteeeemenmemnee 8

Public Citizen v. Department of Justice, 491 U.S.

CT 27

Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963)............ 6

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

Sire hcnsscsnsenientnssenmnsentemnmeeimemee 6

Union Electric Co. v. Environmental Protection

Agency, 427 U.S. 246 (1976).............cccccceceseeseeeseeeeeeeeeeees 14

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

ey Ue cravencemnnantatenenedmememnnennenmnesennte 6

FEDERAL STATUTES

Clean Air Act

ee, Ge ee OF Pe 60 GIR ceccreesnsserssnssssersssesssssssnenes 5

§ 101(a)X(3),42 U.S.C. § 740 1(a)(B) 0.0... ceeeeeeeeeeeeeeeees 16

TABLE OF AUTHORITIES - Continued

Page

§ 109(b), 42 U.S.C. § 7509(D).........cccesccsessrereeeeeeeseeesennes 16

§ 110(c), 42 U.S.C. § 7410(C)......ccccseesteeeeeeeseeeeeeeeeeeneees 14

6B 177, GB UBC. § FOGG .cccccccccsccsccceccscccesesccceseccsescccessvecese 12

§ 181(c)(5), 42 U.S.C. § T51Lla(cy(5) ........ccceceeeeeeeeeeeeeenees 26

§ 181(d)(1), 42 U.S.C. § TELL a(d)(1) «0... cccceceeeeeeereeeees 26

§ 181(e)(4), 42 U.S.C. § TE Llale4)........cccccceeeeeeeeeeereneees 26

§ 181(g)(4), 42 U.S.C. § 75 1lalgy(4)......ccceeserreeeeeees 26, 29

§ BOB, 4B U.B.C. § TEBL.....ccccccccccrcscsscrcccescsscccoccesssoses 20, 21

§ 202(a)(1), 42 U.S.C. § 7521 a1) .......cccceeceeeeeeeeeeeeeeenees 20

§ 202(a)(2), 42 U.S.C. § 7521(a)(2) ........ccccecsseceeeereeereeeees 20

§ 202(aX(3), 42 U.S.C. § 7521 a(S) ........cccecceeeeeeeeeeeereeees 20

§ 202(a)(3)A)(i), 42 U.S.C. § 7521(a)(S)(A)()........eeeeeeeee 20

§ 202(b)(1)(A), 42 U.S.C. § 7521(b)(1)(A).........cccreeeeeeeeees 20

§ 202(g)(1), 42 U.S.C. § 75210 g)(1) «......cereececeeeerereeeeneenes 20

§ 202(g)(2), 42 U.S.C. § 7521(g)(2) .......cccceeerrerreeseeeeeeeees 23

§ 202(h), 42 U.S.C. § T5210h) ........ cc ececcceeseeeeeereeeeeeeeeenees 20

§ 202(j)(1), 42 U.S.C. § 7521G)(1) ......ceecceeeeseecrreseeeeeeeeees 20

§ 202(j)(2), 42 U.S.C. § TE21GM(2) «0... .cececeeeererereeeeeeeeneees 20

§ 207(c)(4), 42 U.S.C. § T541(CM4) ......cccccerereereeeeeeeeeeeeeee 20

§ 209, 42 U.S.C. § 7543..........ccccccssescccrrssseees 18, 22, 25, 26

§ 200(a), 42 U.S.C. § 7543(a).....ccccccrrcrcccescesecceccsees passim

§ 209(b), 42 U.S.C. § 7543(b)..........cccceceerreeeeenees 10, 13, 15

§ 209(b)(1)(C), 42 U.S.C. § 7543(b)1)(C).....ceeeereeereeeees 21

vii

TABLE OF AUTHORITIES — Continued

Page

§ BLUE]), 4B U.S.C. § TE4B(]) ...cccrccccccecscrecesesecssecsseeees 27, 28

§ 211(c)(4), 42 U.S.C. § T545(C)4) oe eeeceeeeeeseeceeeeeeeesees 27

§ 211(c)(4)(A), 42 U.S.C. § 7545(c)(4)(A).....cceeceeeeeeeeeee 27

§ 211(c)4)(C), 42 U.S.C. § 7545(c)(4)(C).........ceeeceeeeeeeeees 28

STATE STATUTES

Cal. Health and Saf. Code sections 24378-24398,

repealed Stats 1967, chapter 1545, § 4..............:cccceeeseees 9

Cal. Health and Saf. Code, Stats 1967, chapter

USTED: Tar iP cisichiichsniiiiestdescshatasesiteatiiemsibiiaiaiapeiiisiiiiibaitiiadininnniiaiiieiiadiens 9

REGULATIONS

Ss ee I viteettcrensccnisnsnnsenenenneniinannnnien 11

eT 19

40 C.F.R. Part 86, § 86.008-10.(b) 00.0.0... cececeeseeeceeeeeeeeeees 19

36 Fed. Reg. 17458 (August 31, 1971) ..........c.ceccecceeeeeeeeees 21

38 Fed. Reg. 10317, 10324 (April 26, 1973)................. 11, 14

40 Fed. Reg. 23102(May 28, 1975).................cceessessessseeeeees 11

41 Fed. Reg. 44209 (October 7, 1976)..............:cccccseeeee 11, 21

42 Fed. Reg. 3192 (January 17, 1977).............ccccccsesseeeeeees 21

43 Fed. Reg. 9344 (March 7, 1978)............:cscccccesessessseeeeees 21

46 Fed. Reg. 62366 (Dec. 23, 1981)................:ccccceceesereeeeeee 11

49 Fed. Reg. 18887 (May 3, 1984)..................ccccceesceesreeeeees 11

59 Fed. Reg. 23264 (May 5, 1994)...................secssessessesessees 15

59 Fed. Reg. 36969 (July 20, 1994)................cccssccceeeeceeeees 12

eee

TABLE OF AUTHORITIES - Continued

Page

59 Fed. Reg. 48625 (September 22, 1994) ...........-.seeseeeeees 11

59 Fed. Reg. 48664 (September 22, 1994)...........ccceseeeeees 15

OTHER AUTHORITIES

A. Reitze, “Overview and Critique: A Century of Air

Pollution Control Law: What’s Worked; What's

Failed; What Might Work,” 21 Envtl. L. (1991)

ee 9

Brestel, Note: The California Motor Vehicle Pollu-

tion Control Law (1962) 50 California Law Re-

Pe 9

H.R. Rep. No. 728, 90th Cong., Ist Sess. ............:00++ 11, 13

J. Krier and E. Ursin, Pollution and Policy, a Case

Essay on California and Federal Experience with

Motor Vehicle Air Pollution,(1977) ...............::cscsceeseeeeees 10

National Commission on Air Quality, To Breathe

Cleats Ade, 1077 (2GB1) nccccccccccccsscsccccesscccccsescccscccssssssnsoosoes 15

S. Rpt. No. 101-228, 101st Cong., 2d Sess., 1990,

9 BI xx cnsnssassecssessesssnssscsnessvsnasnstutiannersessnsenssssunssonsesesensel 27

S. Rpt. No. 403, 90th Cong., 1st Sess., 155 (1967)............ 25

South Coast Air Quality Management District,

Multiple Air Toxics Exposure Study in the South

Coast Air Basin (MV 4TES-II), March 2000, p. ES-3........... 1

U.S. Department of Health, Education, and Wel-

fare, A Digest of State Air Pollution Laws (Public

CO ) 9,10

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici States, drawn from across the country, contain

approximately 160 million people, or over half of the total

population of this nation.’ To protect the health of their

residents and the strength of their economies, States need

to be able to use the most varied and effective tools,

including market-based requirements, to attack some of

the worst air pollution problems in the nation and, indeed,

in the world. Tens of millions of amici States’ residents live

in air basins that exceed the health-based National Ambi-

ent Air Quality Standards that Congress has ordered the

States to meet. In several of the amici States, pollutant

emissions from vehicles either compete with or have

replaced emissions from stationary sources, such as

factories and refineries, as the largest contributors to air

pollution. Vehicle emissions are often the most dangerous

to public health. For example, in the greater Los Angeles

area covered by Respondent South Coast Air Quality

Management District (“SCAQMD”), approximately 70% of

the cancer risk posed by air pollution comes from air

contaminants emitted by diesel vehicles.’

To reduce this serious cancer risk to the millions of

people who live and work in the South Coast Air Basin,

* The Attorneys General file on behalf of their respective States,

pursuant to Rule 37.4. The Pennsylvania Department of Environmental

Protection files pursuant to the consent filed by the parties to this case,

consenting under Rule 37.2(a) to the filing of all timely amicus curiae

briefs.

* Figures come from the 2000 census, as reported at the Census

Bureau website, www.census.gov.

* South Coast Air Quality Management District, Multiple Air

Toxics Exposure Study in the South Coast Air Basin (MATES-II), March

2000, p. ES-3.

the SCAQMD adopted the Fleet Rules at issue here. The

Fleet Rules require owners of fleets of specified vehicle

types (e.g. buses, airport shuttles), when they replenish or

expand those fleets, to choose from among the cleanest

vehicles commercially available to them, and to buy clean-

fueled, non-diesel vehicles if such non-diesels are commer-

cially available. If no qualified clean-fuel vehicle is certi-

fied, the fleet owner may buy a CARB-certified diesel

vehicle.

No requirement is placed upon any manufacturer to

build, certify or offer any particular vehicle for sale. In the

Clean Air Act, Congress expressed its intent that manufac-

turers be required to build no more than two versions — a

federal and a California version — of any particular model

vehicle; no “third car” could be required. The Fleet Rules

comply with this intent; no “third car” can possibly be

required by the Fleet Rules, since those Rules only require

the purchase of vehicles that are already CARB-certified.

Respondent’s Fleet Rules may change the market

share of various manufacturers. However, the Act does not

mandate a “buy-from-the-bottom” requirement on States

or localities, that they provide a guaranteed market for

vehicles whose emissions increase cancer and other

serious health risks.

The Clean Air Act (“CAA” or “Act”) places the primary

responsibility for meeting the health-based national

ambient air quality standards squarely on the States, and

imposes heavy penalties if States fail. The cooperative

federalism embodied in the Clean Air Act has always

allowed the States to use a wide range of tools to control

both stationary and vehicular air pollution. The Fleet

Rules are an attempt to use a tool beyond traditional

mechanical, tailpipe pollution reduction devices. The Fleet

Rules do not directly apply to vehicle manufacturers at all,

but instead set limits on what a fairly limited number of

purchasers of specialized fleet vehicles may buy, rather

than on what manufacturers must produce. They are what

might be called “demand-side” regulations, rather than

“supply-side” regulations.

The Fleet Rules are presumed valid and not pre-

empted, because the field of air pollution control in general

is an area of traditional state regulation, and motor

vehicle emissions in particular is an area where the States

regulated for years before there was any federal presence.

In enacting the Clean Air Act, Congress did not intend

to preempt the Fleet Rules, either by express or implied

preemption. The Fleet Rules are not expressly preempted

because they are not actual emissions “standards”, i.e., the

numeric limits on emissions that set production mandates

for manufacturers to which Congress referred in Section.

209(a). Textual analysis of Section 209, of the Act’s fuel

content provisions, and of the transportation and market

incentive provisions that can be required in nonattain-

ment areas shows that the preemption of emissions control

standards in Section 209(a) is a narrow one that encom-

passes only such production mandates, and not all regula-

tions intended to reduce motor vehicle emissions.

Many States and urban areas have vehicle-caused air

pollution problems that demand regulatory solutions that

go beyond the reach of tailpipe “standards.” As an exam-

ple, New Yorkers drove over 125,000,000,000 miles in

1996, creating formidable air pollution problems. To meet

them, New York has adopted-California’s standards, and

may consider rules such as the Fleet Rules in the future.

Both New York State and New York City restrict motor

vehicle engine idling as a means of reducing air pollution

in the areas where the most people are exposed to it, and

need to exercise their retained authority to control vehicle

pollution, in order to protect the health of their residents.

Nor are the Fleet Rules subject to implied preemption.

The Act has never fully preempted the field of motor

vehicle emission control, and Congress did not intend to

occupy the entire field of motor vehicle emission control by

enacting Section 209. It has always granted to California,

and to other States that adopt California’s emissions

control standards, the right to regulate vehicle emissions

almost co-equally with the federal government. Further,

the savings clause of Section 116 of the Act makes clear

that only certain motor vehicle emissions controls, not all

such controls, are preempted. Congress intended to pre-

clude regulations that place production mandates on

manufacturer, requiring them to build a “third vehicle,”

something the Fleet Rules do not do.

Finally, the Fleet Rules do not stand as an obstacle to

the fulfillment of any purpose of Congress in the Clean Air

Act. To the contrary, they stand as a type of market-based

regulation that advances Congress’s purposes of: 1) pro-

moting clean air; 2) allowing States the maximum flexibil-

ity to adopt regulations that will meet the federal air

quality standards; 3) allowing States and localities to

serve as emissions control laboratories for the nation

(especially for motor vehicle controls); and 4) preventing

manufacturers from being required to produce more than

two versions of any vehicle. The Fleet Rules are valid and

not preempted.

Technological controls on cars, trucks, and buses are

being pushed to the limits that engineering can achieve,

and still the air that millions of amici States’ residents

breathe poses a serious risk of respiratory illness, even

cancer. Amici States respectfully request that the Court

recognize Congress’s intent to allow States to use the

=” “gee

a ee ee

fullest legal range of tools to attack the critical problem of

air pollution, to protect the health and well-being of

millions of their residents.

ARGUMENT

I. THE FLEET RULES ARE NOT PREEMPTED,

BOTH BECAUSE THEY ARE REGULATIONS

OPERATING WITHIN AN AREA TRADITION-

ALLY REGULATED BY STATES AND LO-

CALITIES, AND BECAUSE THEY ADVANCE

THE PURPOSES OF THE CLEAN AIR ACT

TO IMPROVE AIR QUALITY THROUGH CO-

OPERATIVE FEDERALISM

Petitioners ask the Court to hold, in effect, that as a

matter of law, the Act, 42 U.S.C. section 7401 et seq.,

guarantees to manufacturers a right to sell from the

bottom, an absolute right to sell the dirtiest of their new

certified trucks and buses in all parts of all States, to all

customers, free of any local limitations related to air

quality. They further seek a ruling that, as a matter of law,

Congress disabled all local agencies, no matter how

carefully crafted the regulations or how extreme the air

pollution problem, from requiring that fleets be directed to

buy from among the cleaner new trucks and buses that are

otherwise certified, instead of from the dirtiest. Amici

States believe that the Clean Air Act grants petitioners no

such right.

A. Under Generally Applicable Preemption

Principles, the Fleet Rules Are Presumed

to be Valid and Not Preempted.

1. Petitioners here argue express preemption of the

Fleet Rules, citing Section 209(a) of the Clean Air Act, 42

U.S.C. § 7543(a):

No State or any political subdivision thereof shall

adopt or attempt to enforce any standard relat-

ing to the control of emissions from new motor

vehicles or new motor vehicle engines subject to

this part. No State shall require certification, in-

spection, or any other approval relating to the

control of emissions from any new motor vehicle

or new motor vehicle engine as condition prece-

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

registration of such motor vehicle, motor vehicle

engine, or equipment.

In a case of express preemption, the Court has said that

its task is to “‘identify the domain expressly preempted’ by

that language.” Medtronic v. Lohr, 518 U.S. 470, 484

(1995) (quoting Cipollone v. Liggett Group, 505 U.S. at 517

(1992)). The intent of Congress is the touchstone of all

preemption analysis. Retail Clerks v. Schermerhorn, 375

U.S. 96, 103 (1963).

2. The Fleet Rules come to this Court with the

strong presumption that they are valid and not pre-

empted. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947) holds that the Court “start[s] with the presumption

that the historic police powers of the States were not to be

superseded by [a federal statute] unless that was the clear

and manifest purpose of Congress.” Id. See, also, Mary-

land v. Louisiana, 451 U.S. 725, 746 (1981) (“Considera-

tion under the Supremacy Clause starts with the basic

assumption that Congress did not intend to displace state

laws.”) The same presumption applies to local laws and

regulations. Wisconsin Public Intervenor v. Mortier, 501

U.S. 597, 605 (1991).

en il

The presumption against preemption of state and

local police power measures is rooted in principles of

federalism. Medtronic v. Lohr, 518 U.S. 470, 485 (1996). At

least some measure of a presumption exists “in all pre-

emption cases.” Id. This Court has observed that the

courts should be slow to find federal preemption, “[flor the

State is powerless to remove the ill effects of our decision,

while the federal government, which has the ultimate

power, remains free to remove the burden.” Penn Dairies v.

Milk Control Comm’n, 318 U.S. 261, 275 (1943). The

presumption against preemption applies not only to the

initial determination of preemption, but also to the scope

of any preemption that is found. Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 518.

The Fleet Rules being challenged are “designed to

foster public health,” an area that falls within the police

power, Huron Portland Cement Co. v. City of Detroit, 362

U.S. 440, 442 (1960), and as such are presumed not to be

preempted unless Congress has stated a clear intent to do

so. Hillsborough County v. Automated Medical Laborato-

ries, Inc., 471 U.S. 707, 715-718 (1985).

And, as the Court held in Pharmaceutical Research, et

al. v. Walsh, _ U.S. __, 123 S.Ct. 1855, 1869 (2003)

(internal citation omitted):

The presumption against federal pre-emption of

a State statute designed to foster public health

has special force when it appears . . . that the two

governments are pursuing common purposes.

See also, New York State Dept. of Social Servs. v. Dublino,

413 U.S. ‘405, 421 (1973). Here, the federal and the local

governments are pursuing common purposes, namely

clean air and protection of public health.

B. The Clean Air Act Gives States a Primary

Role in Controlling Motor Vehicle Emis-

sions.

The analysis begins with the actual text of the statute,

Gade v. National Solid Wastes Management Assn., 505

U.S. 88, 111 (1992) (Kennedy, J., concurring in part and

concurring in judgment), but it does not end there. The

Court also “look[{s] to the provisions of the whole law and

to its object and policy.” Pilot Life Ins. Co. v. Dedeaux, 481

U.S. 41, 51 (1987). Where there is any ambiguity in the

text, the Court may examine the legislative history of the

statute to determine the intent of Congress. See, e.g.,

Medtronic, 518 U.S. at 490 (emphasis added) (“An exami-

nation of the basic purpose of the legislation, as well as its

history entirely supports our rejection of Medtronic’s

extreme position.”).

Far from creating a monolith of federal preemption,

the Act has from the very first authorized and encouraged

a state program for control of motor vehicle emissions, a

* The Clean Air Act’s programs, like the Aid to Families with

Dependent Children program addressed in Dublino, are intensely

complex, and form a mixture of very precise Congressional directives

and of broad grants of authority and regulatory mandates to the States.

Dublino has special force here, holding that the complexity of a federal

statute should not be regarded by itself as proof of Congressional intent

to preempt state law. Dublino, 413 U'S. at 415.

= _— orn /e~—

state program that stands alongside but operates largely

independent of the federal program.

1. Vehicle emission control is an area of traditional

state regulation. States regulated air pollutant emissions,’

and vehicle pollutant emissions,’ well before the federal

government did. California, in particular, has regulated

motor vehicle emissions continuously for as long as there

have been motor vehicle emissions control regulations in

this country, years before the federal government entered

this regulatory area. In 1960, California passed the Motor

Vehicle Control Act,’ and created the Motor Vehicle Pollu-

tion Control Board to set emissions limits and certify

emissions control devices for motor vehicles.’ By 1967,

California had already required specific emissions control

devices on cars registered in California.’ Seven other

* The federal Department of Health, Education, and Welfare

reported in 1963 that forty States regulated air pollution at that time.

U.S. Department of Health, Education, and Welfare, A Digest of State

Air Pollution Laws (Public Health Service) 1963.

* A. Reitze, “Overview and Critique: A Century of Air Pollution

Control Law: What’s Worked; What’s Failed; What Might Work” 21

Envtl. L. (1991) 1549, 1570-81.

” Cal. Health and Saf. Code sections 24378-24398 repealed Stats

1967, chapter 1545, § 4.

* Brestel, Note: The California Motor Vehicle Pollution Control Law

(1962) 50 California Law Review, 121, 122.

* Cal. Health and Safety Code, Stats 1967, chapter 1545, § 5,

requiring “[e]very 1963 or later motor vehicle subject to registration” in

California to have a CARB-certified device to control crankcase

emissions, and “[e]very 1966 or later motor vehicle subject to registra-

tion” in California to have CARB-certified devices for both crankcase

and exhaust emissions control.

States and the District of Columbia also regulated motor

vehicle emissions prior to the federal government.”

Not until 1965 did Congress enact the federal Motor

Vehicle Air Pollution Control Act. Not until 1967 did

Congress even purport to preempt state control of vehicle

emissions, and then it expressly exempted the state

program that California was already enforcing.”

Rather than being an area where the federal interest

has always predominated, control of motor vehicle emis-

sions started at the state and local level, with the federal

government never quite catching up.

2. From the beginning, Congress enacted only a

partial federal preemption of vehicle emissions control.

Petitioners portray Section 209(a) of the Act, 42 U.S.C.

§ 7543(a), as completely preempting state and local control

of vehicle emissions. In fact, Section 209(a) preempts only

the setting of standards that impose production mandates

on manufacturers, not all controls on motor vehicle emis-

sions. And even as to production mandates, the preemp-

tion is only a partial one. Congress established a waiver

provision in Section 209(b), 42 U.S.C. § 7543(b), that is

extraordinary, and may be unique in federal law. Section

209(b) gives explicit authority for a state vehicle emissions

” U.S. Department of FP xalth, Education, and Welfare, A Digest of

State Air Pollution Laws (Public Health Service) 1963, at 12, 39, 45, 92,

94, 114, 124, 139, 161.

" Pollution and Policy, a Case Essay on California and Federal

Experience with Motor Vehicle Air Pollution, J. Krier and E. Ursin

(1977), cited by Petitioners, states that “[tJhe almost empty histo. y of

federal air pollution control developments prior to mid-twentieth

century stands in contrast to federal actions with respect to water

pollution.” Jd. at 47.

2 <i <n

O° eee

control program in California that sits alongside, but is

largely independent of, the federal program.

Congress granted this state program considerable

autonomy, presumptively granting a waiver of federal

preemption to California, unless the U.S. EPA finds that

California is wrong in its technical judgement of need or

technological feasibility.” The U.S. EPA’s review of Cali-

fornia’s judgement about need and feasibility is narrow.”

U.S. EPA routinely approves waivers even when it dis-

agrees with California’s policy choices, carrying out the

dictate of Congress in Section 209(b)."* Under the 1977

amenaments to the Act, Congress allowed California to

adopt a package of emissions standards, even if individual

standards within that package were less stringent than

their federal counterparts. Motor and Manufacturers

Association v. Environmental Protection Agency, 627 F.2d

1095, 1110-11 (D.C. Cir. 1979). The Clean Air Act has

never contained a complete federal preemption of motor

vehicle control, but has allowed a nearly autonomous state

program from the beginning.

* A House version of the waiver provision proposed by Representa-

tive Dingell, would have required California to demonstrate to the U.S.

EPA Administrator's satisfaction that California had an extraordinary

need for its own standards, and would have left the decision, and any

exercise of discretion, in federal hands. H.R. Rep. No. 90-728, 22. That

version did not pass.

” 49 Fed. Reg. 18887 (May 3, 1984) (“Congress intended that the

standard of EPA review of the State decision be a narrow one.”) See,

also, 40 Fed. Reg. 23102, 23103 (May 28, 1975). See, also, 40 C.F.R.

Part 85, § 85.1606, 46 Fed. Reg. 62366 (Dec. 23, 1981), 49 Fed. Reg.

18887 (May 3, 1984), 59 Fed. Reg. 48625 (September 22, 1994).

“ See, e.g., 36 Fed. Reg. 17458, at 17459 (August 31, 1971), 40 Fed.

Reg. 23102, 23104 (May 28, 1975).

3. In 1977, Congress expanded the independent state

vehicle emissions control program. In the 1977 amend-

ments to the Act, Congress further expanded explicit

authority for the state motor vehic'e «missions standard

program by enacting Section 177 of the Act, 42 U.S.C.

§ 7507, which allows other States to adopt California's

vehicle emissions standards. These States do not need to

demonstrate an extraordinary need for more protective

standards than the federal ones, as California must do,

nor do they need an explicit waiver of federal preemption.

If an individual State has State Implementation Plan

(“SIP”) provisions that call for the vehicle emissions

reductions that California’s standards provide, it is that

State’s choice whether to adopt those standards; U.S. EPA

has no power to grant or deny a waiver under Section 177.

The State need only notify the U.S. EPA of its decision to

opt into the California standards.”

Further, the Act places no cap on the number of

qualifying States that may adopt California’s vehicle

“ As the U.S. EPA has stated in the context of offroad vehicle

emissions standards:

(T]he Act neither requires that States obtain EPA authori-

zation to impose California’s nonroad engine standards nor

authorizes the Agency to require that States do so... . [AJny

State which has plan provisions approved under part D of

Title I of the Act (generally States within ozone nonattain-

ment areas) may adopt and enforce, “after notice to the Ad-

ministrator,” California standards. Language requiring that

other State request and receive authorization from EPA is

noticeably absent. Indeed, the statutory text reads as au-

thorizing States to adopt California standards on their own

~ yolition.

59 Fed. Reg. 36969, 36983 (July 20, 1994).

emissions control program; many States have adopted

California’s vehicle emissions control package, including

amici States Maine, Massachusetts, New York and Ver-

mont, and more may do so as the need arises. While the

Fleet Rules at issue here are not state rules, nor subject to

a Section 209(b) waiver, the actual provisions and legisla-

tive history of the Act, and several decades of regulatory

interpretation of the Act by U.S. EPA, all demonstrate that

federal preemption of vehicle emissions has always been

limited in scope, and has become steadily more limited

over the years.

4. The California/multi-state program advances

cooperative federalism by allowing States and localities to

act as laboratories for the nation, as Respondent SCAQMD

has done here. A narrow reading of Section 209(a) reflects

and advances the structure and purpose of the Clean Air

Act as a “bold experiment in cooperative federalism.”

Connecticut v. Environmental Protection Agency, 696 F.2d

147, 151 (2d Cir. 1982). Courts have recognized that the

Act is “an intergovernmental partnership to regulate air

quality,” Michigan v. Environmental Protection Agency,

268 F.3d 1075, 1078 (D.C. Cir. 2001), with the U.S. EPA

setting national air quality standards and providing

technical and financial support and back-up enforcement,

but with primary responsibility for meeting the national

standards imposed by Congress upon the States. Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 845-846 (1984). Given the enormity and imipor-

tance of the task, and the severity of the consequences of

failure,” the Act provides that the States — who have the

ultimate responsibility for cleaning the air — have the

primary choice of what control measures to use. Union

Electric Co. v. Environmental Protection Agency, 427 U.S.

246, 250 (1976). In setting up this structure of cooperative

federalism, Congress relied upon one of the great

strengths of federalism: the ability of States to serve as

laboratories for the nation, trying experiments in regula-

tion that may, or may not, serve as models for the other

States or the nation as a whole. New State Ice Co. v.

Liebman, 285 U.S. 262, 311 (1932), (Brandeis, J., dissent-

ing) (“It is one of the happy incidents of the federal system

that a single courageous State may, if its citizens choose,

serve as a laboratory, and try novel social and economic

experiments without risk to the rest of the country.”) The

multi-state automotive regulatory program, spear-headed

by California, has served as just such a laboratory for the

nation in vehicle emissions control. As U.S. EPA Adminis-

trator Ruckelshaus observed:

[There is a well-established pattern that emis-

sion control advances have been phased in

through use in California before their use na-

tionwide.

38 Fed. Reg. 10317, 10324 (April 26, 1973.)

In 1981, the National Commission on Air Quality

observed that California’s standards tend to lead federal

standards by two to five years, showing the value of the

“ Such consequences include withholding of federal highway

funds, 42 U.S.C. 7509(bX1), and direct imposition of federal control

plans, 42 U.S.C. 7410(c).

— = — — ——_—

state program to the nation. National Commission on Air

Quality, To Breathe Clean Air, 197 (1981). The Califor-

nia/multi-state vehicle emissions control program is

probably one of the most solid and consistent successes of

cooperative federalism, repeatedly forcing and proving

new and innovative technology that can be applied na-

tionwide to support increasingly stringent federal vehicle

emission standards.”

The enactment of Section 177, and its open-ended

authorization of the use of California standards by other

States, shows that Congress intended this “laboratory”

model to continue and expand. The Fleet Rules exemplify

one of the main benefits of the California/multi-state

program: allowing those States that need greater emis-

sions reductions from automotive sources to obtain them

without imposing the costs of more stringent vehicle

controls on the country as a whole.

C. Section 116 of the Act Expresses Con-

gress’s Intent to Limit Federal Preemp-

tion and Authorize More Stringent State

Controls.

The savings clause contained in Section 116 of the Act,

42 U.S.C. § 7416, also supports the narrowest possible

interpretation of the preemptive scope of Section 209(a).

That Savings Clause names only three sections of the Act

" Respondent SCAQMD has served as the nation’s laboratory

before, as recognized by U.S. EPA on numerous occasions. 59 Fed. Reg.

23264, 23307 (May 5, 1994) (federal plan for Sacramento and Ventura

areas incorporates several controls based on SCAQMD models); 59 Fed.

Reg. 48664, 48681-82 (Sept. 22, 1994) (noting SCAQMD’s work develop-

ing market incentives).

as being preemptive, including Section 209(a). The clause

then characterizes these three sections as only “preempt-

ing certain State regulation of moving sources,” not all

such regulation. 42 U.S.C. § 7416 (emphasis added). The

main thrust of Section 116 is that any State or political

subdivision of a State retains the right to adopt more

stringent standards or control measures than those

mandated by Congress.

Also, Section 116 affirmatively declares the right of

any “State or political subdivision thereof” to adopt more

stringent standards and regulations than the federal ones,

except for those few federal controls on mobile sources. 42

U.S.C. 7416 (emphasis added). The Act emphasizes at

every point the primacy of States and localities in air

pollution control.” The declaration in Section 116 of States’

and localities’ retained authority shows a lack of congres-

sional intent to preempt the entire field of mobile source

emission control, and an express intent to keep the scope

of preemption narrow.

D. The Term “Standards Relating to the Con-

trol of Emissions” as Used in Section 209

Refers Only to Numerical Standards, Not

Market Controls Such as the Fleet Rules.

Central to petitioners’ claim of federal preemption of

the Fleet Rules is an overly simplified and overly ex-

pande®? definition of the words “standards relating to

control of emissions” in Section 209(a). Petitioners claim

” See, e.g., 42 U.S.C. § 7401(aX3), where in Congress found “that

air pollution { ] control at its source is the primary responsibility of

States and local governments. . . .”

that those words encompass not merely any and all

standards adopted by States or localities to reduce motor

vehicle pollutant emissions, but any and all state or local

regulations adopted with that intent, including regulations

such as the Fleet Rules, which do not, by their own terms,

directly apply to manufacturers. The argument should be

rejected.

1. The Words “Relating to” in Section 209(a) Do Not

Expand the Scope of The Act’s Preemption. Petitioners and

the United States argue that the words “relating to” in

Section 209(a) expand the scope of federal preemption to

virtually any state or local regulatory measure that affects

new motor vehicles and is intended to reduce emissions.

The argument should be rejected, and the phrase “relating

to” should be construed to draw in only those rules that

are inconsistent with Congress’s objectives in the Act.

The words “related to” have in the past been inter-

preted to have a broad meaning, Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383-85 (1992), but in New York

State Conference of Blue Cross & Blue Shield Plans, et al.

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

(upholding significant state law surcharges on hospital

costs paid by insurers under employment benefit plans),

the Court recognized the lack of meaning inherent in such

broad construction:

[OJne might be excused for wondering, at first

blush, whether the words of limitation (“insofar

as they ... relate”) do much limiting. If “relate

to” were taken to extend to the furthest stretch of

its indeterminacy, then for all practical purposes

pre-emption would never run its course, for

“[rjeally, universally, relations stop nowhere.”

Id. at 655. As Justice Scalia noted in another case, “every-

thing is related to everything else.” California Division

of Labor Standards Enforcement, et al. v. Dillingham

Construction, N.A., Inc., et al., 519 U.S. 316, 335 (1997)

(Scalia, J., concurring).

In Travelers, therefor, the Court determined that it

“must go beyond the unhelpful text and the frustrating

difficulty of defining its key term, and look instead to the

objectives of the [federal] statute as a guide to the scope of

the State law the Congress understood would survive.” 514

U.S. at 656. The Court also looked to the nature of the

effect of the state law on the federal statutory scheme, and

found that the state law’s “indirect economic effects on the

relative costs of various health insurance packages in a

given State” did not have a sufficiently direct impact on

the federal scheme of uniformity as to require preemption.

Travelers, 514 U.S. at 661-62. Only significant impacts are

preempted. The Court applied this same analysis in its

subsequent unanimous opinion in Dillingham, focusing on

Congress’s objectives and whether the challenged state

law conflicts with those objectives in any significant way.

Dillingham, 519 U.S. at 325.

Congress had clear objectives in enacting the Act’s

motor vehicle emissions control provisions: to clean the air

and to reduce vehicle pollutant emissions through an

exercise in cooperative federalism in which the U.S. EPA

sets the floor of emissions standards; California is allowed

to adopt more exacting emissions controls; other States,

under Section 177, are allowed to adopt California’s

standards; and vehicle manufacturers are not required to

build more than two versions of any model vehicle. The

Fleet Rules conflict with none of these objectives. In fact,

they further each.

2. “Standards,” as used in Section 209, means

numerical limits on emissions that impose production

mandates on manufacturers. The term “standard” as used

in Title II of the Act is not expressly defined in Section

209, Motor Vehicle Mfrs. v. NYS Dept. of Conservation, 17

F.3d 521, 533 (2nd Cir. 1994), or in Title II as a whole.

However, for purposes of preemption analysis, this Court

may look at both the text and the structure of the Act, and

the context of Title II, to determine the meaning Congress

intended it to have there. Gade v. National Solid Wastes

Management Assn., 505 U.S. 88, 96. Amici States believe

that the intended meaning of the term “standard relating

to control of emissions,” as it is used in Section 209, is a

requirement that is: (1) imposed directly upon a manufac-

turer as a condition of certifying its vehicles for sale; and

(2) numerical, a specified number of grams of a given

pollutant that may be emitted per mile driven or per unit

of energy exerted”, or a concentration in parts per million

or other unit of measurement that may be emitted by a

vehicle the manufacturer certifies.” That is the only

meaning that comports with all the Act’s provisions.

” Standards for heavy-duty engines are generally expressed in

grams a Nae me ar eee gmap ions

in amount of energy expended by the engine. See, e.g.,

40 C.F.R. Part 86, § 86.007-11. A few oe a standards are =

pressed by c*her numeric means, such as a standard for evaporative

emissions, wuich may be expressed as a per-test numeric limit. See,

e.g., 40 C.F.R. Part 86, § 86.008-10.(b).

* Such a numerical standard may also be expressed in terms of a

fleet average, or a mandate that a certain percentage of the fleet meet

specified emissions levels (such as a requirement that a specified

percentage be zero emission vehicles). This is also a “standard,”

imposed directly on the manufacturer and directly linked to a specific

emissions limit. Congress's very deliberate care how and when it used

the term “standard” further shows its lack of desire to preempt the

entire field of vehicle emissions control.

Congress used the term “standards,” as applied to

motor vehicle emissions, throughout Section 202 of the

Act, and its use there shows the meaning Congress as-

cribed to it. Section 202 authorizes and directs the Admin-

istrator of U.S. EPA *e adopt “standards applicable to the

emission of any air pollutant” from motor vehicles. These

“standards” are numerical standards that prescribe the

maximum level of pollutants that new motor vehicles may

emit, and that manufacturers must meet in their vehicles

in order to certify the vehicles as legal for sale. “Stan-

dards” focus and depend on technology and hardware, as

shown by the elaborate detail in Section 202 regarding the

requirements for availability, lead time, and cost of tech-

nology to meet the federal standards. See, e.g., 42 U.S.C.

§§ 7521(a)(1), 7521(aX(2), 7521(aX3). Section 202 specifi-

cally refers to standards “which reflect the greatest degree

of emission reduction achievable through the application of

technology which the Administrator determines will be

available for the model year to which such standards

apply. .. .” 42 U.S.C. § 7521(aX3A)(i) (emphasis added).”

2. Congress’s intent can also be seen in subdivision

(6) of Section 209, which allows California to obtain

a waiver of federal preemption and set its own vehicle

™ See Section 202(bX1XA) (emissions standards for light-duty

vehicles, expressed in grams per mile); Section 202(gX1) and (2)

(emissions standards for light-duty trucks, expressed in grams per

mile); Section 202(h) (emissions standards for later light-duty trucks,

expressed in grams per mile); Section 202(jX1) and (2) (cold carbon

monoxide emissions standard, expressed in grams per mile, with phase-

in schedule); Section 202[n] (emissions standards for post-1990 buses,

expressed in grams per brake horsepower hour); Section 207(cX4)

(emissions standards for light-duty trucks, expressed in grams per

mile).

eee ieee cement

emissions standards. To qualify for a waiver of preemp-

tion, California must show, inter alia, that its proposed

standards meet the requirements set in Section 202 for

federal emission standards (that is, that the requisite

technology will be available with sufficient lead time). 42

U.S.C. § 7543(b)\1)(C). Congress thus intended the waived

Section 209(b) “standards” to be the same type of stan-

dards as the Section 202 standards: numerical, technol-

ogy- and hardware-based production mandates imposed

directly on manufacturers. There is no other logical

reading of Section 209(b)(1)(C).

U.S. EPA has consistently applied this definition in its

decisions granting waivers of Section 209(a) to California,”

and the District of Columbia Circuit has upheld that

interpretation. In Motor and Equipment Mfrs. Ass’n, Inc.

v. Environmental Protection Agency, 627 F.2d 1095, 1111-

12 (D.C. Cir. 1979), cert. den., 446 U.S. 592 (1980), the

court upheld the position of the U.S. EPA Administrator in

a contested waiver decision. It held that, as used in Sec-

tion 209, “the word ‘standards’ connotes a numerical value

setting the quantitative level of permitted emissions of

pollutants by a new motor vehicle” (emphasis added),

rejecting the view “that ‘standards’ means any regulation

relating to motor vehicles.” Motor and Equipment Mfrs.,

™ See, e.g., 36 Fed. Reg. 17458 (August 31, 1971), 42 Fed. Reg.

3192, 3193 (January 17, 1977), and 43 Fed. Reg. 9344, 9346 (March 7,

1978), each setting out difference between a standard (numerical value)

and enforcement procedures (tests to determine whether numerical

standard has been met); and 41 Fed. Reg. 44209, 44212 (October 7,

1976), explaining difference between a standard (numerical value) and

the length of time a vehicle must meet that standard.

627 F.2d 1112 (emphasis added). The court went on to

hold:

The legislative history also indicates that Con-

gress intended the word “standards” in section

209 to mean quantitative levels of emissions

rather than regulations involving certification or

in-use maintenance restrictions. The Senate Re-

port on the Air Quality Act of 1967, discussing

the preemption provision, mentions “standards”

for hydrocarbons, nitrogen oxides, and carbon

monoxide in obvious reference to the numerical

limitations on those pollutants. S.Rep.No. 403,

SO0th Cong., lst Sess. 32 (1967.)

Id.

The reasoning of the Motor and Equipment Mfrs.

court applies here equally: not every regulation relating to

vehicle emissions is preempted by Section 209, only

regulations directly setting numerical emissions limits

that manufacturers must meet.

E. Section 209(a)’s Preemption Was Intended

to Cover Only Regviations That Control

Emissions and Mandate That Manufac-

turers Produce Vehicles to Meet Them; It

Embodies the Two-Car Compromise That

Balances Clean Air with Manufacturers’

Needs.

That the Fleet Rules are not “standards” for purposes

of Section 209(a)’s federal preemption can also be seen by

the fact that no manufacturer is legally required to pro-

duce vehicles to meet the Fleet Rules, in order to offer its

vehicles for sale in California. The Fleet Rules contain no

production requirement for manufacturers, just as they

ggg Nl i te,

a ee

contain no numerical emissions limitation, and no certifi-

cation requirement other than the California Air Re-

sources Board certification that the manufacturer must

obtain in order to offer the vehicle for sale in California.

The Fleet Rules do not require any manufacturer to

produce any vehicle that it does not choose to produce and

certify for California. On the contrary, the Fleet Rules

require covered fleet owners to buy the specified clean-fuel

vehicles only if they are already certified for sale in Cali-

fornia. If no manufacturer chooses to make and certify in

California a vehicle that meets Fleet Rule requirements,

the fleet owner may buy any California-certified vehicle,

even if it would otherwise violate the Fleet Rules.

This is the point upon which American Auto Mfrs.

Ass’n v. Cahill, 152 F.3d 196 (2d Cir. 1998) and Interna-

tional Auto Mfrs. v. Commissioner, 208 F.3d 1 (1st Cir.

2000), cited by Petitioners, Pet. Brf. at 23, 42, are inappo-

site. Those cases held that Section 177 States (States that

have adopted California’s standards) could not mandate

the production, certification, and offering for sale by

manufacturers of certain numbers or percentages of zero-

emission vehicles (“ZEVs”), which were expected to be

electric cars, in those States. Cahill, 152 F.3d at 200 (ZEV

sales requirement mandated a specified percentage of cars

sold must be ZEVs); International Auto, 208 F.3d at 6

(same). Here, there is no mandate on the manufacturers to

produce vehicles that comply with the Fleet Rules. The

manufacturers may wish, as a business decision, to pro-

duce such vehicles in order to better compete in the local

and specialized market of the specified fleet types (buses,

street sweepers, airport shuttles, etc.) whose owners are

covered by the Fleet Rules. However, as distinguished

from the facts in Cahill, the manufacturers will be allowed

to offer their general production lines for sale in California

without producing any vehicles that satisfy the Fleet

Rules. Indeed, should all manufacturers independently

decide” not to produce vehicles conforming to Fleet Rule

requirements, then the Fleet Rules will be without effect,

and fleet owners will be able to buy any California certi-

fied vehicle that they wish, pursuant to the “escape clause”

in the Rules.

In Section 209(a), Congress was not concerned with

restrictions on customers in their purchase of specialized

product lines, but with mandates on vehicle manufactur-

ers to produce more than two versions of any given line of

vehicles. Although Section 177 does not limit Section 209,

it indicates the intent of Congress, providing in pertinent

part:

Nothing in this section or in subchapter II of this

chapter shall be consirued as authorizing any

such State [i.e., any non-California State that

adopts California’s emissions standards] to....

take any action of any kind to create, or have the

effect of creating, a motor vehicle or motor vehi-

cle engine different than a motor vehicle or motor

vehicle engine certified in California under Cali-

fornia standards (a “third vehicle”) or otherwise

create such a “third vehicle.”

Lower courts have recognized this “identicality,” or no

“third vehicle,” requirement as at the heart of Section 177.

Motor Vehicle Mfrs. v. NYS Dept. of Env. Cons., 17 F.3d

521, 531-32.

™ We posit no mutual agreement among manufacturers to do 80,

since such an agreement would raise anti-trust concerns.

The legislative history of Section 209 also shows that

Congress intended the Section 209 preemption to prevent

manufacturers from being required to design and build

more than two versions of each vehicle.“ While Section

209 was under consideration, manufacturers demanded

that they be required to make only one version of each

model vehicle; California demanded that it be allowed to

continue its long history of setting independent standards

that would require a second, less polluting version. In

Section 209, Congress struck the two-car compromise.

California could adopt emissions standards that required

manufacturers to make a second version of affected vehi-

cles, while the federal version would be made for the other

49 States. The manufactures would not be required to

build more than two versions of any vehicle. Congress then

lifted the 49-State preemption after only a few years,

allowing other States to adopt California’s standards, but

it required them to adopt California’s standards in total, so

that the two-car compromise was maintained.

The Fleet Rules in no way affect or threaten the two-

vehicle compromise, because they do not require the

production or sale of a third vehicle. The Fleet Rules not

only do not require manufacturers to build and certify a

third vehicle, they virtually forbid it, since they allow a

covered fleet owner to choose solely from among Califor-

nia-certified vehicles. No third vehicle can be required,

“ Respondents’ briefs thoroughly cover the legislative history

behind the origin of Section 209(a), and the balancing done by Congress

of California’s history and extreme vehicle air pollution problem against

the burden on manufacturers of making more than one version of its

cars and trucks. S. Rpt. No. 403, 90th Cong., 1st Sess., 155 (1967).

thereby respecting the purposes of Congress in enacting

Section 209.

F. Textual Analysis of the Act Shows That

Congress Did Not Intend Section 209(a) to

Preempt All State or Local Regulations

Intended to Reduce Motor Vehicle Emis-

sions.

Reading a statute to render a portion of it surplusage .

is disfavored under standard canons of statutory construc-

tion, since the terms of a statute should be read so as to

give each of them meaning. Moskal v. United States, 498

U.S. 103, 109-110 (1990). Petitioners’ reading of “stan-

dards relating to the control of emissions” would render

surplusage several provisions of the Act that expressly

require the States to carry out regulatory programs de-

signed to lower vehicle emissions.

1. In the 1990 amendments to the Act, Congress

recognized that the problem of urban air pollution is far

more intractable than first supposed, and it enacted long

and extraordinarily detailed provisions that States and

localities are required to enact in nonattainment areas. 74

U.S.C. § 7502 et seg. Examples include transportation

control measures to reduce vehicle miles traveled, includ-

ing driving restrictions (42 U.S.C. §§ 751la(c)(5);

751la(d)(1)"), pessible economic incentive programs (42

U.S.C. § 7511a(g)(4)), and the mandatory fleet rule provi-

sions of Section 246, which require the use of clean-fuel

* In States having “extreme” ozone problems, even more severe

transportation and traffic controls must be considered. 42 U.S.C.

§ 751la(eX4).

run ee

Seal

vehicles in specified fleets in ozone nonattainment areas.

Petitioners’ construction of the Act would render these

provisions federally preempted. None of these provisions

contains a clause stating that they apply “notwithstand-

ing” Section 209(a), nor does Section 209(a) have such a

non obstante clause as to them. To read the Act as both

preempting and mandating the same regulations produces

absurd results that Congress could not have intended.

Such a reading should be avoided. Public Citizen v. De-

partment of Justice, 491 U.S. 440, 453-455 (1988).

2. Congress has also stated that regulation of fuel

quality affects vehicle emissions. S. Rpt. No. 101-228,

101st Con., 2d Sess., 1990, p.116; Motor Vehicle Mfrs. v.

NYS Dept. of Env. Cons., 17 F.3d 521, 532. Fuel quality

affects emissions when a model goes through certification

testing, and from the time a new vehicle is first fueled,

even before it leaves the dealer’s lot. Accordingly, the Act

provides for controls on fuel content as a means of vehicle .

emissions control, including a provision for limited federal

preemption of fuel content, in Section 211(c) of the Act. 42

U.S.C. § 7545(c). These controls, and the limited federal

preemption, are entirely separate from the preemption in

Section 209(a). Motor Vehicle Mfrs., 17 F.3d at 532.

To read Section 209(a) as preempting all state or local

regulatory measures that are intended to influence or

reduce emissions would be to render nugatory the fuel

content requirements of the Act in Section 211(c)(4).

Section 211(c)(4)(A) forbids any “State (or political subdivi-

sion thereof) from setting fuel standards for purposes of

motor vehicle emission control” if U.S. EPA has enacted or

forbidden specified fuel content regulations itself. Section

211(c) allows that limited preemption, where it applies,

to be waived for States other than California, Section

211(c\4\(C), 42 U.S.C. § 7545(c)(4)(C), and exempts Cali-

fornia from federal preemption altogether. 42 U.S.C.

§ 7545(c)(4)(B).

Although Section 211(c) expressly preempts state and

local regulation of fuel and fuel additives for purposes of

vehicle emissions control (where U.S. EPA has enacted the

requisite fuel content prescriptions or proscriptions), it

does not state that it applies “notwithstanding” Section —

209. However, if the Section 209(a) preemption really

covered cll state or local regulatory measures intended to

reduce or control vehicle emissions, there would be no

need for Section 211(c)’s preemption of control of any fuels

and fuel additives intended to reduce or control these

same vehicle emissions; Section 209(a)’s supposedly

blanket preemption would already have done so. The

broad reading of Section 209(a) urged by petitioners and

their amici would thus render the detailed provisions of

Section 211(c)(4) surplusage.

Since neither Section states that it operates “notwith-

standing” the other, Congress obviously intended both

Sections to be given. full effect.” Reading these two Sec-

tions of the Act together shows that Congress did not

intend to preempt all state and local regulations that

* Congress did use the phrase “[nJotwithstanding Section [209(a)]

of this title” in Section 177, when it lifted the federal preemption of

Section 209(a) for States that adopt the California standards as their

own. Where Congress believed that different sections of the Act

overlapped, it was perfectly able to indicate which should trump the

other. It did not say so in Section 211(c), showing that Congress itself

did not consider the preemptive reach of Section 209(a) to be anything

like the broad sweep claimed here by petitioners and their amici.

——

- —_— Ce

EX oe.

- 29

affect new motor vehicles and are intended to reduce

emissions.

G. The Act Does Not Preempt Controls on

Vehicle Purchasers.

Petitioners believe that Section 209(a) can be read as

preempting limitations on the buyers of vehicles, rather

than preempting regulations that apply solely to the

manufacturers. Amici States disagree. The Clean Air Act

in Title II does not directly speak to controls on purchasers

of vehicles, either positively or negatively. The text and

legislative history of Section 209(a) are concerned with the

competing interests of States and vehicle manufacturers,

and do not directly address consumers. Petitioners can cite

only one passing reference to purchaser of motor vehicles

in the legislative history” and even that is ambiguous.

Congress has not spoken explicitly to regulations that

target the demand side of vehicle emissions control, rather

than the closely regulated supply side.” Certainly, Con-

gress has not expressed a “clear and manifest” intent to

preempt such programs. Hillsborough County v. Auto-

mated Medical Laboratories, Inc., 471 U.S. 707, 715-716.

Given this absence of congressional direction on purchaser

controls, amici States believe that the Rice presumption

* Pet. Brf., at 38-39.

* The exception is the provision at Section 182(g)(4) of the Act, 42

U.S.C. § 7511a(gX4), which allows States to elect to use an “economic

incentives” program, which may include mobile sources, to meet certain

emissions reduction targets. Again, Congress did not provide that

States may pursue such programs “notwithstanding” Section 209,

indicating that Congress did not view economic incentive programs as

being preempted.

against preemption should control here, and the Fleet

Rules upheld in the absence of any affirmative action by

Congress to preempt such regulations.

CONCLUSION

For all the reasons sét forth above, amici States ask

that the Court affirm the decision of the Ninth Circuit that

the Fleet Rules are not federally preempted.

Dated: November 17, 2003

Respectfully submitted,

BILL LOCKYER

Attorney General of the State

of California

MANUEL M. MADEIROS

Solicitor General of the State

of California

RICHARD M. FRANK

Chief Assistant Attorney General

THEODORA BERGER

Senior Assistant Attorney General

CRAIG C. THOMPSON

Supervising Deputy Attorney General

SUSAN L. DURBIN

Deputy Attorney General

Counsel of Record

Counsel for California Attorney General

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.