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

‘ FILED

~_

No. 02-1343 | NOV 17 2003

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

Vv.

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 OF THE NATIONAL LEAGUE OF CITIES,

NATIONAL CONFERENCE OF STATE

LEGISLATURES, NATIONAL ASSOCIATION OF

COUNTIES, COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY/COUNTY MANAGEMENT

_ ASSOCIATION, U.S. CONFERENCE OF MAYORS,

AND INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, JOINED BY THE STATE AND

TERRITORIAL AIR POLLUTION PROGRAM

ADMINISTRATORS, AND ASSOCIATION OF LOCAL

AIR POLLUTION CONTROL OFFICIALS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

TIMOTHY J. DOWLING RICHARD RUDA *

Chief Counsel Chief Counsel

COMMUNITY RIGHTS COUNSEL STATE AND LOCAL LEGAL CENTER

1301 Connecticut Ave., N.W. = 444 North Capitol St., N.W.

Suite 502 Suite 345

Washington, D.C. 20036 Washington, D.C. 20001

(202) 296-6889 (202) 434-4850

* Counsel of Record for the

Amici Curiae

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

QUESTION PRESENTED

Whether section 209(a) of the Clean Air Act, 42 U.S.C. §

7543(a), preempts state and local clean air regulations that

enhance the market for cleaner fleet vehicles, such as urban

transit buses, without imposing. any production mandates or

other obligations on manufacturers.

(i)

TABLE OF CONTENTS

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TABLE OF AUTIIORITIES ...ccccccccccosscosccorscsessosesssoeees

INTEREST OF THE AMICI CURITAE ..........ccc0ceceeeeees

SUMMARY OF ARGUMENT..............:cccsccssscsereseeees

ee

SOUTH COAST’S FLEET RULES ARE

NOT “STANDARDS” PREEMPTED BY

SECTION 209(8). cccceccscccccsecsscsssssessecsessesecsesseees

A. The Text, Structure, and History of the

Clean Air Act Show that the Fleet Rules

I

B. The Lower Courts’ Distinction Between

Manufacturer Controls and Purchaser

Controls Is Reasonable and Comports

with the Meaning of the Act..............:00000

ADOPTION OF PETITIONERS’ BROAD

READING OF SECTION 209(a) WOULD

ERODE ENVIRONMENTAL FEDERALISM

AND JEOPARDIZE VITAL STATE AND

LOCAL GOVERNMENT INTERESTS. .........

A. Petitioners’ Position Would Threaten

Many State and Local Laws That Protect

Public Health and the Environment ..........

B. Petitioners’ Position Would Impose

Substantial Economic Burdens on State

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iv

TABLE OF AUTHORITIES

Cases Page

Adamo Wrecking Co. v. United States, 434 U.S.

ore CP icinitsantnecesnmnianstiamnueiaiamenninaniiiainiie 6

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

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

Ge DUPED citessscncattentninsenctiatihinnnatnnnrnameipusaiet 12-13, 13

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

Fe ath WUT cxcictnnnementannemmanntiniaainiimentins 16

Association of Int'l Auto. Mfrs. v. Comm'r,

208 F.3d | (Ist Cir. 2000)..............cccceccesrceeceeees 16

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

(Gor eel ncncnencsnssunsccsinmnnennsmenensapmiannimnenenapmenapemiesin 1]

Building & Constr. Trades Council of Metro.

Dist. v. Associated Builders & Contractors,

ee Gees Se ED cetrercntuttienvenmetnnnnnamninesinnies 21

City of Columbus v. Ours Garage & Wrecker

Serv., Inc., 536 U.S. 424 (2002) ...........cc000seee0es 8

Christensen v. Harris County, 529 U.S. 576

Eevee Tv noe 1]

Deal v. United States, 508 U.S. 129 (1993) .......... 1]

Dole Food Co. v. Patrickson, 123 S.Ct. 1655

Sue ccnscvencccenannenesnansiadbinmninemeuianiatiiniiiatmeaes 6

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

is Garth eee cniceestereersesnenneniesieniniennnnniiepainaaiiniaseins 10, 13

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) ..............eeeeee 9

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)....... 3

Motor & Equip. Mfrs. Ass'n v. EPA, 627 F.2d

as Cae a iccncinnneiasentanttnatinniniitidieeenss )

New State Ice Co. v. Liebmann, 285 U.S. 262

STITT sriteesiniciacinhiniibitaiasitiendenianiaeniadiadmbiadiiastaiiaiadiiaanien 18

Reeves, Inc. v. Stake, 447 U.S. 429 (1980)............ 21

\

TABLE OF AUTHORITIES—Continued

Statutes

Page

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

ee 8

United States v. Mead Corp., 533 US. 218

> | ane eeen 10, 11

United States v. Nordic Village, Inc., 503 U.S. 30

(eee 6

Whitman v. American Rasties Ass'ns, 531 U.S.

| 2, 12, 22

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TABLE OF AUTHORITIES—Continued

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TABLE OF AUTHORITIES—Continued

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LA. REV. STAT. ANN. § 39:364 ............cccccccceeeseseees 21

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Or. REV. STAT. §§ 469.185-.225 ...........cccceeseeeeeeees 20

SAN FRANCISCO ENV’T CODE § 406..............0000000e8 21

UTAH CODE ANN. § 41-6-53.5(4)(a)(ili) ......eeeeeeeee 19

UTAH CODE ANN. § 41-6-53.5(5) ..........ccceeeeeeeeenees 19

VA. CODE ANN. §§ 33. 1-46.2(6) ..........cccceeeeeeeeneees 18

VA. CODE ANN. §§ 46.2-749.3..........cccsseeeeseeeeeeeeees 18

VA. CODE ANN. §§ 58.1-438.1 ..........cceceeeseseeeseeeees 20

W. VA. CODE § 5A-2A-2(G) ..........00ccceeesesersseeeceees 20

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Vili

TABLE OF AUTHORITIES—Continued

Regulations and Rules Page

A | ne 9

ne 9

Ee 9

Air Pollution Control: Preemption of State Reg-

ulation for Nonroad Engine and Vehicle Stan-

dards, 59 Fed. Reg. 36,969 (July 20, 1994)....... 10

Alternative Fuel Transportation Program, 61 Fed.

Reg. 10,622 (March 14, 1996)..........cccccccceeeeseees 15

Approval and Promulgation of Implementation

Plans: Texas, 66 Fed. Reg. 57,223 (Nov. 14,

SEU Piscneeannnemnenniniinininmmeamemiianimnneiite 3, 9-10, 10

Clean Fuel Fleet Program, 58 Fed. Reg. 64,679

Ge, Fi Fee ceennsnnsninsssnnniaemnanmnmnnnennn 8

Clean Fuel Fleet Program, 63 Fed. Reg. 20,159

SRD, Gi, CED ccnternnnsemenninneienmnenans 14

Control of Air Pollution, 59 Fed. Reg. 31,306

GD Fi, Be crncseenercesccreniserenncnsenmanennemannnnen 10

Control of Air Pollution from New Motor

Vehicles, 64 Fed. Reg. 26,004 (May 13, 1999), 23, 24

Control of Emissions of Air Pollution from

Nonroad Diesel Engines and Fuel, 68 Fed.

Reg. 28,328 (May 23, 2003)...........sscssscsesseeeees 22, 23

Emission Standards for Clean-Fuel Vehicles and

Engines, 59 Fed. Reg. 50,042 (Sept. 30, 1994)... 14

Final Rule on Ozone Transport Commission, 60

Fed. Reg. 4712 (Jan. 24, 1995).........cccceceeeseeees 22

Other Authorities

136 Cong. Rec. H2576 (daily ed. May 21, 1990).. 13

138 Cong. Rec. H3808 (daily ed. May 27, 1992).. 15

138 Cong. Rec. H11,425 (daily ed. Oct. 5, 1992). 14

138 Cong. Rec. H1 1,439 (daily ed. Oct. 5, 1992). 14

Susan E, Dudley, Economic Impact Analyses, 16

PACE ENVTL. L. REV. 81 (1998)..........scccsccssseees 24

ix

TABLE OF AUTHORITIES—Continued

Focus on our Partners, Mobility Matters (N.

Cent. Texas Council of Gov’ts’ Reg’! Transp.

Council), Fall 2002, at http://www.dfwinfo.

com/trans/mobility_matters/mm_fall02.pdf......

Nathanael Greene & Vanessa Ward, Getting the

Sticker Price Right: Incentives for Cleaner,

More Efficient Vehicles, 12 PACE ENVTL. L.

REV. 91 (1994) .......ccccsccccsccrscrsrscserseresssseesennsesees

Christopher M. Grengs, Making the Unseen

Seen: Issues and Options in Small Business, 85

MINN. L. REV. 1957 (2001 )......cccccceeeeeeeerneereeeees

Charles Haddad & Christine Tierney, FedEx and

Brown Are Going Green, BUS. WK. ONLINE,

Aug. 11, 2003 at http://www.businessweek.

com/magazine/content/03_32/b3845086.htm....

THE HIGH-OCCUPANCY VEHICLE ENFORCEMENT

TASK Force, Final Report (2003), at http://

www.virginiadot.org/infoservice/resources/

FINALHOVTaskForceReport8- | 5-03.pdf........

David L. Markell, States As Innovators: It's Time

for a New Look to Our "Laboratories of

Democracy" in the Effort to Improve Our

Approach to Environmental Regulation, 58

ALB. L. REV. 347 (1994) .....cccccceeseeeeeneeenseensensees

Patricia Ross McCubbin, Michigan v. EPA:

Interstate Ozone Pollution and EPA's "NOx

Sip Call,” 20 St. Louis U. Pus. L. REv. 47

) | Cee

John Nolon, In Praise of Parochialism: The

Advent of Local Environmental Law, 26 HARV.

ENVTL. L. REV. 365 (2002) .....cccccccceeeeeeeeeeeneeenes

Gary Polakovic, Smog Woes Back on Horizon,

L.A. TIMES, July 15, 2003, at AL ......ccceeeeeeeeeees

Page

15

23

14

i8

17

24

17

23

Xx

TABLE OF AUTHORITIES—Continued

Richard B. Stewart, Environmental Quality as a

National Good in a Federal State, 1997 U.

CO, CAE F, SOC II IID cccececccscsceneensevenetesesnense

U.S. Congress, Office of Technology

Assessment, CATCHING OUR BREATH: STEPS

FOR REDUCING URBAN OZONE (1989), at

http://www.wws.princeton.edu/~ota/disk 1/198

el inincciicinshececinnebaatihinedigssenastesiacatnien

Henry Waxman, ef al., Cars, Fuels, and Clean

Air: A Review of Title Il of the Clean Air Act

Amendments of 1990, 21 ENvTL. L. 1947

(1991)

Page

17

24-25

en =

INTEREST OF THE AMICI CURIAE

Amici National League of Cities, National Conference of

State Legislatures, National Association of Counties, Council

of State Governments, International City/County Manage-

ment Association, U.S. Conference of Mayors, and Interna-

tional Municipal Lawyers Association are organizations

whose members include state and local governments and

officials throughout the United States.' Amici State and

Territorial Air Pollution Program Administrators and

Association of Local Air Pollution Control Officials are

national associations representing air pollution control

agencies in 53 States and territories and more than 165 major

metropolitan areas across the United States. Amici have a

compelling interest in preserving the longstanding power of

state and local governments to protect public health and

the environment.

Amici’s members currently face the enormous task of

complying with new federal air quality standards for soot and

ozone issued by the U.S. Environmental Protection Agency in

1997. It is vital that these officials retain the flexibility

envisioned by Congress to adopt and implement creative

controls on significant sources of air pollution such as motor

vehicles. Invalidation of innovative programs such as

respondent South Coast Air Quality Management District’s

(“South Coast’s”) Fleet Rules would adversely affect state

and local economies by unfairly shifting more of the

compliance burden on small businesses and other stationary

sources of pollution.

' This brief was not authored in whole or in part by counsel for a party,

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

counsel made a monetary contribution to the preparation or submission of

this brief. The parties have consented to the filing of amicus briefs and

have filed letters of blanket consent with the Clerk.

2

Amici’s members include local governments that are part of

the regulated community subject to the Fleet Rules. These

municipalities might well become subject to additional

controls on vehicle purchases imposed by state and regional

authorities. Amici recognize, however, that fleet purchase

requirements and similar rules often create economies of

scale that benefit the citizenry of the regulated jurisdictions.

As members of the regulated community, amici fully support

respondents’ position.

The Clean Air Act promotes cooperative federalism by

making state and local governments hands-on partners with

the federal government. See 42 U.S.C. § 7401(a)(3) (state

and local governments have “primary responsibility” for

improving air quality); Whitman vy. American Trucking

Ass'ns, 531 U.S. 457, 470 (2001) (“It is to the States that the

CAA assigns initial and primary responsibility for deciding

what emissions reductions will be required from which

sources.”). Notwithstanding petitioners’ suggestion to the

contrary (Br. 2), the Act’s cooperative federalism extends to

mobile sources, with States expressly encouraged to adopt

innovative programs to reduce mobile source pollution. F.¢.,

42 U.S.C. § 7408(f) (requiring EPA to assist the States in

adopting a lengthy list of mobile source controls). Even prior

to the passage of the Act, many state and local govern-

ments, particularly California, were already regulating mobile

sources of air pollution to protect public health and the

environment.

To be sure, section 209 of the Act strikes a compromise

between the interests of States and automakers by preventing

the States from requiring manufacturers to build 50 different

kinds of cars to comply with 50 sets of emission standards.

But section 209 should be interpreted in a way that preserves

the authority of state and local governments to impose

controls on vehicle purchasers designed to reduce motor

vehicle emissions. The Court’s well-settled presumption

3

against preemption, as well as its concomitant narrow

interpretation of express preemption provisions, promotes

“federalism concerns and the historic primacy of state

regulation of matters of health and safety.” Medtronic, Inc. v.

Lohr, 518 U.S. 470, 485 (1996).

Because of the importance of these issues to amici and

their members, this brief is submitted to assist the Court in its

resolution of this case.

SUMMARY OF ARGUMENT

1. The text of section 209 and the Clean Air Act as a

whole shows that the Fleet Rules are not “standards”

preempted by section 209(a). The repeated references to

“standards and other requirements” in other portions of

section 209 make clear that the term “standard” in section

209(a) does not embrace any “requirement” related to the

control of emissions from new motor vehicles as argued by

petitioners. Rather, the use of “standard” in related pro-

visions shows that the term is limited to numerical

specifications for vehicle emissions imposed on manufac-

turers. Indeed, the one provision of the Act that expressly

addresses fleet purchase requirements, section 246, refers to

these rules not as “standards,” but as “requirements.”

In keeping with the text, structure, and history of section

209(a) and the Act, the U.S. Environmental Protection

Agency has long interpreted the term “standard” to refer

exclusively to numerical emission limits imposed on

manufacturers. E.g., 66 Fed. Reg. 57,223, 57,225 (Nov. 14,

2001). EPA has statutory authority to define the term

“standard” as used in section 209 and Title II generally, but

never in the 36-year history of section 209 has EPA or any

court applied the term “standard” to rules that impose

obligations on vehicle purchasers rather than manufacturers.

4

The distinction relied on by the courts below between

standards imposed on manufacturers and requirements

imposed on purchasers adheres to the text, structure, and

history of the Act. It also makes good sense from an

economic policy perspective. Purchase requirements gener-

ally are less burdensome on manufacturers than emission

standards and often benefit the regulated community by

creating economies of scale and lower overall costs for

purchasers that would not otherwise exist.

2. Petitioners read section 209 as invalidating any state or

local law that refers in any way to numerical emission

standards or vehicle design criteria related to emissions, even

where the law imposes no requirements on manufacturers.

This reading would undermine the cooperative federalism

that underlies protections for public health and the envir-

onment by invalidating many state and local laws designed to

improve air quality.

Petitioners’ unduly broad reading of section 209 also

would have substantial economic consequences for state and

local governments. EPA’s new air quality standards for smog

and soot will impose enormous compliance costs. See

Whitman v. American Trucking Ass’ ns, 531 U.S. 457 (2001).

As state and local officials endeavor to find ways to meet

these new standards, petitioners’ broad reading of section

209(a) would improperly tie their hands, preventing them

from adopting creative demand-side programs designed to

reduce motor vehicle emissions. Petitioners’ hair-trigger

preemption test would foist an unfair portion of the

compliance burden on small businesses and other stationary

sources, render this Court’s presumption against preemption a

hollow promise, and undermine Congress’s stated intent that

air quality officials have the flexibility necessary to meet the

Act’s requirements in a balanced and responsible way.

er eT ——s

5

ARGUMENT

This brief supports respondents in three ways. In Section I,

amici show that the Fleet Rules and similar state and local

requirements imposed on purchasers of motor vehicles are

fully consistent with the text, structure, and history of section

209 and the Act as a whole, as wel! as EPA’s longstanding

interpretation of the term “standard” in section 209. Section

II.A describes innovative state and local initiatives designed

to improve air quality that could be jeopardized by

petitioners’ reading of section 209%(a). In Section II.B, amici

discuss the adverse economic consequences of adopting

petitioners’ expansive reading of section 209(a).

I. SOUTH COAST’S FLEET RULES ARE NOT

“STANDARDS” PREEMPTED BY SECTION

209(a).

A. The Text, Structure, and History of the Clean

Air Act Show that the Fleet Rules Are Not

“Standards.”

The central legal issue in this case is whether the term

“standard” as used in section 209(a) should be read broadly,

as petitioners contend, to mean any requirement related in any

way to the control of new motor vehicle emissions or, as the

courts below held, more narrowly to refer only to numerical

emission limits imposed on manufacturers.

The text of section 209 compels rejection of petitioners’

broad reading. Section 209(b)(1)(C), for example, refers to

“standards and accompanying enforcement procedures.”

42 U.S.C. § 7543(b)(1)(C). Clearer still is section 209(e)(1),

which preempts “any standard and other requirement”

relating to the control of emissions from nonroad vehicles and

engines such as trains and farm equipment. /d. § 7543(e)(1).

Section 209(e)(2) likewise refers to “standards and other

requirements” in the context of authorizing California to

6

adopt controls on nonroad vehicles. /d. § 7543(e)(2). Peti-

tioners do not—and could not plausibly—argue that the term

“standard” has a different meaning in these other subsections

of section 209.

Section 209’s express references to enforcement proce-

dures and other requirements plainly would have been

unnecessary if the term “standard” were broad enough to

encompass any requirement relating to the control of

emissions. In Adamo Wrecking Co. v. United States, 434

U.S. 275 (1978), the Court relied on similar textual

distinctions between “standards” on the one hand, and

‘techniques,’ ‘controls,’ and ‘technology’” on the other to

interpret the word “standard” in section 112 of the Act to

mean a quantitative limit. /d. at 286. Although Congress

subsequentiy amended the Act to expand the scope of section

112, Adamo Wrecking’s interpretive principle still holds.

Petitioners’ reading of section 209 contravenes “the ‘settled

rule that a statute must, if possible, be construed in such

fashion that every word has some operative effect.’” Dole

Food Co. vy. Patrickson, 123 S.Ct. 1655, 1661 (2003) (quoting

United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992)).

Other related provisions in Title II of the Act compel a

reading of the term “standard” as referring exclusively to

numerical emission limits imposed on manufacturers.

Section 202 of the Act, which requires EPA to prescribe

“standards” applicable to new motor vehicles, uses the term

“standard” more than 100 times, each time either as an

express numerical limit on manufacturers or in a manner

consistent with that reading.? The same holds true for

* E.g., 42 U.S.C. § 7521(a)(3\B)(ii) (requiring standards for oxides of

nitrogen from heavy-duty trucks that “provide that such emissions may

not exceed 4.0 grams per brake horsepower hour”); id. § 7521(a)(6)

(requiring standards for onboard vapor recovery systems with a “capture

efficiency of 95 percent”); id. § 7521(b\( 1A) (requiring standards

providing that emissions for model years 1977 through 1979 “may not

— i ee -

7

provisions that require standards for nonroad engines and

vehicles, 42 U.S.C. § 7547(a), urban buses, id. § 7554, and

clean fuel vehicles. /d. §§ 7583-7585.

Like section 209, section 202 plainly distinguishes

standards from requirements, for example authorizing

“requirements to control rebuilding practices [for heavy-

duty engines], including standards applicable to emissions.”

Id. § 7521(a)(3)(D). In language that could not be clearer,

Section 202(g)(1) requires “standards which provide that

emissions from a percentage of each manufacturer’s sales

volume” meet specified numerical limits. /d. § 7521(g)(1).

Petitioners fail to cite a single instance in which Title II of the

Act clearly «uses the term “standard” to refer to controls

imposed on vehicle purchasers.

Also telling is section 246, which requires States to

establish clean vehicle purchase requirements for centrally

fueled fleets in areas designated as serious, severe, or extreme

nonattainment areas. /d. § 7586. Throughout this lengthy

provision, Congress repeatedly refers to fleet purchase

programs not as “standards,” but as “requirements.” E.g., id.

§ 7586(a)(3) (referring to the fleet program “requirements”’);

id. § 7586(b) and table (referring to a phase-in of the fleet

program “requirements”); id. § 7586(c) (same); id. § 7586(d)

(referring to the fleet program “requirements of this

subsection”); id. § 7586(f)(2)(B) (same). The only use of the

term “standard” in this provision comes in contexts that make

clear that the referent is a numerical limit on emissions

imposed on manufacturers. See id. § 7586(c) (referring

to numerical emission standards issued under § 7583); id.

exceed 1.5 grams per vehicle mile of hydrocarbons and 15.0 grams per

vehicle mile of carbon monoxide”); id. § 7521(b)(1)(B) (requiring

standards providing that emissions for model years 1977 through 1980 for

oxides of nitrogen “may not exceed 2.0 grams per vehicle mile”); id. §

7521(g) & Table G (specifying numerical standards for certain light-duty

trucks); id. § 7521(h) and Table H (same).

8

$§ 7586(f)(1)(B) & (C), (f)(4) (referring to numerical emis-

sions for Ultra-Low Emission Vehicles and Zero Emission

Vehicles); accord Clean Fuel Fleet Program, 58 Fed. Reg.

64,679, 64,679 (Dec. 9, 1993) (referring to fleet program

“requirements” that mandate the purchase of vehicles that

meet clean fuel vehicle emission “standards”). This clear

textual distinction between “standards” and “requirements” in

section 246’s_ fleet purchase provisions undermines

petitioners’ reading of “standard” as including fleet purchase

requirements and similar programs.

If the term “standard” embraced obligations imposed on

purchasers such as the Fleet Rules, one would expect to find

some reference to these purchaser obligations in Title II's

enforcement sections and other provisions. In fact, Title Il

contains dozens of references to the obligations imposed on

manufacturers and dealers (e.g. 42 U.S.C. §§ 7522 (pro-

hibited acts), 7524 (civil penalties), 7525 (certification)), but

does not contain a single reference to any obligation imposed

on consumers or purchasers.

Given the Act’s consistent use of “standard” in Title II to

mean numerical emissions limits imposed on manufacturers,

the Act plainly does not reflect the requisite “clear statement”

or “clear and manifest purpose” needed to preempt the

historic authority of state and local governments to improve

air quality by imposing restrictions on purchasers. Cf. City of

Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S.

424, 429 (2002) (“absent a clear statement to the contrary,”

an express preemption provision should be read to preserve

traditional state and local prerogatives); Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947) (federal statutes

should not be read to preempt historic police powers of

the States “unless that was the clear and manifest purpose

of Congress”).

The regulatory history of section 209 confirms the evi-

dence found in the Act’s text and structure regarding the

-

9

meaning of “standard.” Although section 209 has been in

effect for more than 30 years, and although EPA has statutory

authority to issue rules implementing section 209(e) and other

key provisions that use the term “standard” (see, e.g., 42

U.S.C. §§ 7543(e)(2), 7521(a)(1)), petitioners fail to cite a

single EPA regulatory decision or judicial ruling determining

that the term “standard” as used in Title Il applies to

regulations directed at purchasers of motor vehicles rather

than manufacturers or distributors.”

In fact, since the 1970s EPA has relied on the same textual

distinctions set forth above to contend successfully that

“standard” refers exclusively to quantitative or numerical

limits imposed on vehicle manufacturers. For example, in

Motor & Equipment Manufacturers Ass'n v. EPA, 627 F.2d

1095 (D.C. Cir. 1979), the D.C. Circuit adopted EPA’s

position that “the word ‘standards’ connotes a numerical

value setting the quantitative level of permitted emissions of

pollutants by a new motor vehicle.” /d. at 1111. The court

emphasized that in interpreting section 209, EPA “has

consistently made a distinction between standards and

accompanying enforcement procedures, confining the former

to regulations on quantitative levels of emissions.” /d. at

1113, 1114 n.38 (citing 43 Fed. Reg. 9344, 9345 (1978); 42

Fed. Reg. 3192, 3194 (1977); 36 Fed. Reg. 17,458 (1971)).

Justi two years ago, EPA reiterated that “[a]n emission

standard under 209(a) and (e) is a quantitative limit on

emissions of a pollutant from an engine, vehicle or piece of

* 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), cited by certain

industry amici, is not to the contrary because it involved preemption of

nonroad vehicle regulation under section 209%e), which applies to

“standards and other requirements.” The Huston court distinguished

section 209(e) from section 209(a) based on their different phraseology.

Id. at 927.

10

equipment.” Approval and Promulgation of Implementation

Plans: Texas, 66 Fed. Reg. 57,223, 57,225 (Nov. 14, 2001).

Moreover, EPA simultaneously confirmed that the term

“standard” refers to limits imposed on manufacturers (not

purchasers), adding that “[t}he means for achieving [a

standard] are typically through modifying or changing the

engine or equipment itself.” /d.

This agency reading of “standard” as used in section 209%e)

is especially significant because section 209(e)(2) requires

EPA to issue regulations implementing this provision. The

agency’s interpretation of “standard” in section 209 thus

deserves substantial deference. See, e.g., United States v.

Mead Corp., 533 U.S. 218, 229 (2001) (“We have recognized

a very good indicator of delegation meriting Chevron

treatment in express congressional authorizations to engage in

the process of rulemaking or adjudication that produces

regulations or rulings for which deference is claimed.”).

This recent reiteration of EPA’s interpretation of “stand-

ard” came in the context of EPA’s approval of revisions to

the Texas State Implementation Plan, which included rules

restricting the use of certain nonroad engines to certain times

of the day and months of the year. See 66 Fed. Reg. at

57,223. Rejecting industry objections that section 209(e)

preempts the Texas rules, EPA observed that it had

previously issued rules under section 209(e) interpreting the

term “standard” as referring solely to quantitative emission

limits imposed on manufacturers. /d. at 57,225 (citing Air

Pollution Control: Preemption of State Regulation for

Nonroad Engine and Vehicle Standards, 59 Fed. Reg. 36,969

(July 20, 1994) and Control of Air Pollution, 59 Fed. Reg.

31,306 (June 17, 1994)). EPA further noted that the D.C.

Circuit had upheld the rules, including these interpretations,

against industry challenge. /d. at 57,225 (citing Engine Mfrs.

Ass'n v. EPA, 88 F.3d 1075 (D.C. Cir. 1996)).

EPA’s longstanding interpretation of section 209 is entitled

to substantial deference notwithstanding the amicus brief

filed by the United States in this case, which argues for a

broader reading. EPA is notably absent from that brief,

which fails to account for the agency’s consistent inter-

pretation to the contrary. Where, as here, the Solicitor

General’s position conflicts with the expert agency’s

longstanding interpretation as expressed in congressionally

authorized rulemakings, it is the agency’s position that

warrants deference, not counsel’s position. E.g., Mead Corp.,

533 U.S. at 229; Christensen v. Harris County, 529 U.S. 576,

587 (2000) (interpretations that “lack the force of law * * *

do not warrant Chevron-style deference”); Bowen vy.

Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (“[Wle

have declined to give deference to an agency counsel's

interpretation of a statute where the agency itself has

articulated no position.” (citing authorities)).

If section 209(a) were read in isolation, there might be

some ambiguity as to its precise meaning in light of the

multiple dictionary definitions of the term “standard.” Any

such ambiguity would, of course, cut against petitioners,

given the Court’s presumption against preemption. But as

shown above, the text, structure, and history of section 209

and related provisions confirm that the courts below properly

interpreted that term. Cf. Deal v. United States, 508 U.S. 129,

131-32 (1993) (although words often have more than one

dictionary meaning, “all but one of the meanings is ordinarily

eliminated by context,” due to the “fundamental principle of

statutory construction (and, indeed, of language itself) that the

meaning of a word cannot be determined in isolation, but

must be drawn from the context in which it is used”).

Petitioners argue (Br. 35) that even under a reading of

“standard” as a numerical emissions limit, the Fleet Rules are

standards because they refer to California’s numerical limits.

But section 209(a) does not preempt every law that in any

12

way makes reference to standards; it preempts only

“standards.” Because the Fleet Rules do not impose numer-

ical emission limits or any other requirement on manu-

facturers, they are not standards preempted by section 209.

At times, petitioners seem to suggest (Br. 36-44) that other

provisions of the Act might preempt the Flicet Rules.

Congress does not, however, “hide elephants in mouseholes,”

changing the fundamental structure of a statutory scheme in

ancillary provisions. Whitman, 531 U.S. at 468. Because the

express preemption provision of section 209(a) does not

apply to the Fleet Rules, the Court should not engage in

tortured readings of other provisions to find preemption.

B. The Lower Courts’ Distinction Between Manu-

facturer Controls and Purchaser Controls Is

Reasonable and Comports with the Meaning of

the Act.

In concluding that section 209(a) does not preempt the

Fleet Rules, the lower courts distinguished controls imposed

on purchasers from those imposed on manufacturers and

distributors. Petitioners argue that this distinction is

“illusory,” “untenable,” and “nonsensical,” contending that

purchases and sales are simply two sides of the same coin.

Pet. Br. 19-20, 25-26.

More than 30 years ago, however, courts recognized that

distinguishing between requirements imposed on manu-

facturers and those imposed on purchasers makes perfect

sense when viewed in light of the language and purposes of

section 209. As explained in Allway Taxi, Inc. v. City of New

York, 340 F. Supp. 1120 (S.D.N.Y.), aff'd, 468 F.2d 624 (2d

Cir. 1972) (per curiam), “both the history and text of the Act

show that the [preemption provision] was made not to

hamstring localities in their fight against air pollution

but to prevent the burden on interstate commerce which

would result if, instead of uniform standards, every State and

” +66

13

locality were left free to impose different standards for

exhaust emission control devices for the manufacture and sale

of new cars.” /d. at 1124. The Allway Taxi court observed

that local air quality protections imposed through controls on

purchasers “cause only minimal interference with interstate

commerce, since they would be directed primarily to

intrastate activities and the burden of compliance would be

on individual owners and not on manufacturers and dis-

tributors.”” /d.

Two decades later, the U.S. Court of Appeals for the

District of Columbia Circuit expressly invoked the Allway

Taxi distinction when it reviewed EPA’s rules regarding the

definition of “new” nonroad vehicles under the preemption

provision set forth in section 209(e)(1). Engine Mfrs., 88

F.3d at 1086. In rejecting an industry challenge to the rules,

the court wrote: “The Allway Taxi interpretation, postponing

state regulation so that the burden of compliance will not fall

on the manufacturer, has prevented the definition of ‘new

motor vehicle’ from ‘nullifying’ the motor vehicle preemp-

tion regime. [Industry] has offered no reason to suspect an

essentially identical definition of ‘new nonroad vehicle’ will

nullify the nonroad preemption scheme either.” /d.

Distinguishing between producer and consumer controls

also makes good economic sense. Requiring a manufacturer

to ensure that a specified portion of its output meets a

particular emission standard compels it to produce vehicles

without any assurance that market demand will absorb them.

Congress quite naturally was concerned with the economic

inefficiency of requiring the production of motor vehicles that

no one will buy.” In contrast, consumer controls like fleet

* See 42 U.S.C. § 7590(b) (banning federally imposed production man-

dates except for those under the California pilot test program); 136 Cong.

Rec. H2576 (daily ed. May 21, 1990) (statement of Rep. Dingell) (“If we

mandate production and mandate certain items, it does not guarantee that

the product will be sold.”).

14

purchasing requirements automatically create a market by

compelling certain consumers to purchase the motor vehicles

being produced, thereby avoiding the burden on industry of

producing vehicles no one will buy. Indeed, by directing the

States to adopt purchase mandates for private and public

fleets in section 246, Congress sought to broaden market

penetration of clean fuel vehicles without imposing a

production mandate. See Clean Fuel Fleet Program, 63 Fed.

Reg. 20,159, 20,160 (Apr. 23, 1998) (“Congress intended that

the creation of a market for [clean fuel vehicles] would

provide an incentive for vehicle manufacturers to produce and

sell such vehicles outside California, ultimately resulting in

broader market penetration.”).”

Moreover, consumer controls often benefit the regulated

community (e.g., the purchasing fleets) by creating eco-

nomies of scale that would not otherwise exist. The cost of

operating low-emitting, clean fuel vehicles might well be less

than the cost of operating conventional vehicles due to

reduced fuel costs and the like,° but without purchase

> Accord 42 U.S.C. §§ 13,251, 13,257 (requiring the Secretary of

Energy to adopt purchase mandates); 138 Cong. Rec. H11,425 (daily ed.

Oct. 5, 1992) (statement of Rep. Bruce) (“This bill would create a market

for these fuels by requiring Federal, state and some private fleets to buy

increasing levels of alternatively fueled vehicles.”); 138 Cong. Rec.

H11,439 (daily ed. Oct. 5. 1992) (statement of Rep. Slattery) (“{Demand-

side management] programs can not only serve to promote energy

efficiency, but can also create and expand markets for new and improved

energy equipment, products, and services.”).

° See Emission Standards for Clean-Fuel Vehicles and Engines, 59 Fed.

Reg. 50,042, 50,069 (Sept. 30, 1994) (predicting lower operational costs

for most light-duty clean fuel vehicles as compared to conventional fuel

vehicles); Charles Haddad & Christine Tierney, FedEx and Brown Are

Going Green, BUS. WK. ONLINE, Aug. 11, 2003, at http://www.business

week.com/magazine/content/03_32/b3845086.htm (reporting that large

delivery fleets are switching to hybrids and other clean trucks because

they are cheaper to maintain and operate, with fuel cost savings of up

to 50 percent).

15

requirements, retail prices could be prohibitive because so

few are produced. And manufacturers might be unwilling to

produce and market cleaner vehicles due to the uncertainty of

demand. Consumer controls such as fleet purchase require-

ments create a guaranteed market, drive down production

costs through economies of scale, and lead to lower purchase

prices for the regulated community. When those reduced

purchase costs are combined with lower operational costs, the

fleets might well have lower overall costs than they would

have in the absence of regulation.’

The Fleet Rules at issue combine the best of both worlds.

They create market demand for cleaner vehicles, but they

simultaneously exempt fleets from compliance where the

market fails to provide a sufficient supply of complying

vehicles. Thus, neither manufacturers nor purchasers are put

at significant risk.

Purchase mandates have an additional advantage over

production mandates because the former allow those

producers best able to make cleaner vehicles to produce and

sell them, as opposed to requiring every manufacturer to do

so. In other words, demand-side controls allow the market to

sort out which producers can most efficiently produce cleaner

vehicles. They do not disrupt any particular manufacturer’s

production schedule because no manufacturer is required to

’ See Alternative Fuel Transportation Program, 61 Fed. Reg. 10,622,

10,649 (March 14, 1996) (purchase mandate programs create economies

of scale that result in decreasing incremental costs); 138 Cong. Rec.

H3808 (daily ed. May 27, 1992) (statement of Rep. Synar) (“{I)ncreased

Federal and private purchases of [alternative fuel vehicles] mandated in

the bill{] will help create the market necessary to encourage vehicle

manufacturers to produce these vehicles and allow economies of scale

which will reduce production costs.”); Nathanael Greene & Vanessa

Ward, Getting the Sticker Price Right: Incentives For Cleaner, More

Efficient Vehicles, 12 PACE ENVTL. L. REV. 91, 94 (1994) (demand-side

regulation can make “cleaner, more efficient vehicles more affordable to

buy, and * * * more profitable to sell”).

16

sell any vehicles to the covered purchasers. Only those

producers who want to tap this market will do so, and the

market will adjust the price accordingly.

The distinction between producer and consumer regulation

relied on by the courts below is fully consistent with the two

cases upon which petitioners rely most heavily: American

Auto. Mfrs. Ass'n v. Cahill, 152 F.3d 196 (2d Cir. 1998), and

Association of Int'l Auto. Mfrs. v. Commissioner, 208 F.3d |

(Ist Cir. 2000) (AJAM). In both cases, the courts concluded

that Zero Emission Vehicle (ZEV) mandates imposed on

manufacturers are standards. In fact, in AJAM the matter was

undisputed. /d. at 6 (all parties “agree that the ZEV mandates

are standards”). Although petitioners and industry amici

extract snippets from these opinions in an attempt to bolster

their position, neither court had occasion to consider whether

purchase mandates imposed on consumers constitute pre-

empted standards. As shown above, they do not.

In short, respondents’ interpretation of “standard” as mean-

ing numerical emission limits imposed on manufacturers

yields a symmetrical, harmonious set of provisions. Under

this reading, EPA establishes numerical emission limits and

associated testing procedures as required by ection 202,

California may adopt its own numerical emission standards

under section 209(b), and other jurisdictions may adopt

California’s standards under section 177 (see 42 U.S.C.

§ 7507). And no State or municipality can require a

manufacturer to build a “third vehicle.” See id.

In contrast, petitioners have failed to provide a coherent,

unified reading of the Act. For instance, if South Coast’s

Fleet Rules are “standards” preempted by section 209, one

might expect section 202, which authorizes EPA to issue

vehicle emission standards, to empower EPA to impose a

national fleet purchase program at the federal level (i.e., a

federally imposed purchase mandate on private fleet opera-

tors, as distinguished from the state-imposed fleet programs

17

required for specified areas by section 246). Yet there is no

evidence that Congress intended EPA to impose nationwide

purchase mandates or that EPA has ever considered doing so.

And petitioners presumably would oppose any such effort.

The reason, of course, is that the term “standard” as used in

section 202 has always been understood to refer to quan-

titative emission limits imposed on manufacturers.

Il. ADOPTION OF PETITIONERS’ BROAD

READING OF SECTION 209%a) WOULD

ERODE ENVIRONMENTAL FEDERALISM

AND JEOPARDIZE VITAL STATE AND

LOCAL GOVERNMENT INTERESTS.

In recent years, a host of scholars and commentators have

hailed the emerging role of state and local governments in the

cooperative federalism that drives our nation’s efforts to

protect public health and the environment. State and local

solutions to contemporary environmental problems are

especially appropriate to address “diffuse, diverse, and very

local causes” of pollution such as motor vehicles. John R.

Nolon, /n Praise of Parochialism: The Advent of Local

Environmental Law, 26 HARV. ENVTL. L. REV. 365, 413

(2002) (recognizing that “[{l]ocal responses are inherently

flexible and context-specific,” thereby enabling local

governments “to become useful partners in the state and

federal environmental protection systems”); see also David L.

Markell, States As Innovators: It's Time for a New Look to

Our “Laboratories of Democracy” in the Effort to Improve

Our Approach to Environmental Regulation, 58 ALB. L. REV.

347, 355-57 (1994) (noting the role of State and local

governments as central actors in environmental regulation);

Richard B. Stewart, Environmental Quality as a National

Good in a Federal State, 1997 U. CuI. LEGAL F. 199 (1997)

(observing that opinion polls indicate that the public wants

both the federal government and the States to protect the

environment, according a preference to neither).

18

South Coast’s Fleet Rules and similar state and local laws

that create demand for environmentally sound technologies

are not preempted “standards.” Rather, they are precisely the

kind of “economic experiment” Congress expects the “lab-

oratories” in our federal scheme to implement. See New State

Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting).

As shown below, petitioners’ overly expansive reading of

section 209(a) would not only undercut cooperative fed-

eralism in environmental protection by jeopardizing inno-

vative state and local environmental initiatives, but also

impose substantial economic costs as state and local officials

endeavor to meet federal air quality standards.

A. Petitioners’ Position Would Threaten Many

State and Local Laws That Protect Public

Health and the Environment.

Petitioners assert that section 209(a) preempts any state or

local law that refers to emissions or engine design criteria

related to emissions (Pet. Br. 26), or is “linked” in any other

manner to vehicle emissions (id. 28). This reading, however,

would threaten many laws currently on the books. For

example, the Commonwealth of Virginia requires drivers in

“HOV” lanes to use either a “high occupancy vehicle” or a

low emission vehicle. VA. CODE ANN. §§ 33.1-46.2(6) and

46.2-749.3. These requirements apply during rush hour to

major commuter routes in northern Virginia, such as Inter-

states 66, 95, and 395, and they constitute one of the most

successful HOV programs in the country.” Virginia’s

inclusion of low emission vehicles in the program plainly is

designed to reduce emissions from new cars by providing an

* See THE HIGH-OCCUPANCY VEHICLE ENFORCEMENT TASK FORCE,

FINAL REPORT (2003), at http://www.virginiadot.org/infoservice/re-

sources/FINALHOVTaskForceReport8- | 5-03.pdf.

me

19

incentive to purchase clean vehicles such as the Toyota Prius

or Honda Insight.” Several other States have similar laws that

include low emission vehicles in their HOV programs."”

Petitioners’ reading of section 209(a) as precluding any state

or local regulation tied to emission characteristics could

invalidate these and other successful incentive programs."

Petitioners’ position also could jeopardize state laws that

provide tax credits as an incentive to purchase low emission

vehicles and alternative fuel vehicles.’ Respondents’ briefs

” Id. at 4.

” E.¢., COLO. REV. STAT. § 42-4-1012(2.5); FLA. STAT. § 316.0741(4);

GA. CODE. ANN. §§ 32-9-4(a)(4), 40-2-76; UTAH CODE ANN. §§ 41-6-

53.5(4)(a)iii), 41-6-53.5(5). Although federal law requires similar ex-

emptions for certain low emission vehicles as a condition for federal

funding (23 U.S.C. § 102(a)(2)), these state laws go beyond those

requirements by including low emission vehicles in HOV programs on

roads that do not depend on federal funding.

'' Under petitioners’ reading of the Act, inclusion of low emission

vehicles in HOV programs would not be rescued from preemption by

section 209(d), which preserves for States “the right otherwise to control”

the use of motor vehicles. 42 U.S.C. § 7543(d). Because the word

“otherwise” retains preemption of all standards, and because petitioners

read “standard” as including any state or local law that makes reference to

emission limits, their reading would threaten the inclusion of low

emission vehicles in HOV programs notwithstanding section 209(d).

Section 249(f)(3) creates a further tension in petitioners’ position by

authorizing clean fuel vehicle incentives, including HOV exemptions, for

States that opt into the California pilot program for clean fuel vehicles. 42

U.S.C. § 7589(f)(3). Consistent with the text and structure of Title II,

nowhere does section 249(f)(3) refer to these state incentive laws as

“standards.” The Solicitor General advises that no State has opted in

(U.S. Br. Am. Cur. 6 n.2), but the provision still is irreconcilable with

petitioners’ position that section 209(a) preempts every state law that

refers to new vehicle emissions.

'? E.g., ARIZ. REV. STAT. § 43-1174; ARK. CODE ANN. § 15-4-2104;

COLO. REV. STAT. § 39-22-516(2.5); CONN. GEN. STAT. § 12-217i; GA.

CODE ANN. § 48-7-40.16(b); LA. REV. STAT. ANN. § 47:38; Mb. CODE

ANN., TRANSP. § 13-815; MicH. Comp. LAWS § 211.91; OKLA. STAT. tit.

20

discuss other incentive programs that also would be threat-

ened by petitioners’ reading of section 209(a).

Unlike petitioners, the Solicitor General (U.S. Br. Am. Cur.

17 n.4) recognizes that section 209(a) does not apply to at

least some incentive programs. Amici agree that section

209(a) has no application to incentive programs, and that

petitioners’ reading of “standard” as including any law that

refers to emission limits is patently overbroad. The Solicitor

General’s position, however, inexplicably turns on whether

incentive programs create “barriers to market entry” (id.), a

reading that finds no support in the language of section

209%(a). In contrast, respondents’ reading preserves the

legitimacy of incentive programs while adhering to the text of

section 209 and the Act as a whole.

9

Petitioners’ unduly broad reading of “standard” as any

requirement that makes reference to vehicle emissions also

might prevent States and local governments from enacting

laws governing their own vehicle purchasing decisions,

or requiring their agencies and subdivisions to purchase

cleaner vehicles. For example, just last year the State of New

Mexico enacted a law that requires 75 percent of state

government and educational agency motor vehicle pur-

chases to be low emission vehicles. See N.M. STAT. ANN.

§ 13-1B-3. West Virginia imposes alternative fuel fleet

purchase requirements on its political subdivisions ranging

from 50 to 75 percent, see W. VA. CODE § 8-27A-2(b) & (c),

and it imposes similar requirements on state agencies. See id.

§ S5A-2A-2(d) & (e). Missouri requires state agencies to

ensure that at least 50 percent of agency fleet vehicles can use

alternative fuels. See MO. ANN. STAT. § 414.410. Many other

States have similar laws that could be jeopardized under

68, § 2357.22, amended by 2003 OKLA. SEss. LAwWs Ch. 186; OR. REV.

STAT §§ 315.354, 315.356, 316.116, 469.160-.180, 469.185-.225; VA.

CODE. ANN. § 58.1-438.1.

21

petitioners’ proposed reading of section 209(a) because they

require state agencies and political subdivisions to purchase

low emission vehicles.'’ Similar laws at the municipal level

also could be called into question. '*

In contrast to petitioners, the Solicitor General acknowl-

edges that “the State of California may be entitled to place

restrictions on the types of new public vehicles that the State

and its instrumentalities purchase for their own use.” U.S. Br.

Am. Cur, 29 (quoting Building & Constr. Trades Council of

Metro. Dist. v. Associated Builders & Contractors, 507 U.S.

218, 231-32 (1993)); see also Reeves, Inc. v. Stake, 447 U.S.

429 (1980). But state and local officials also need the

flexibility to impose purchasing controls on private fleets to

protect public health and comply with federal law. For

instance, the cities of Dallas and Fort Worth are formulating

requirements that taxi, limousine, and other fleets operate

ultra-low emission vehicles to help meet federal air quality

standards by 2007. See Focus on our Partners, MOBILITY

MATTERS (N. Cent. Texas Council of Gov’ts’ Reg. Transp.

Council), Fall 2002, at 2, at http://www.dfwinfo.com/trans/

mobility_matters/mm_fall02.pdf. The City of Dallas advises

that it is also considering requirements and bid preferences

for city contractors that would reduce emissions by increasing

the purchase and use of cleaner vehicles and fuels. These

important clean air initiatives might well be preempted by

petitioners’ broad reading of section 209(a).

'"B.@., ARIZ. REV. STAT. § 15-349; lowA Cope §§ 260C.19A;

262.25A, amended by 2003 lowa Legis. Serv. 145 (West); KAN. STAT.

ANN. § 75-4616(b)(5); LA. REV. STAT. ANN, §§ 33:1418, 39:364; MAss.

REGS. CODE tit. 310, § 7.45; MINN. STAT. § 16C.135; Nev. REV. STAT.

§§ 486A.010-.180; N.Y. Exec. LAW § 201-a; OHIO REV. CODE ANN.

§ 123.01 1(F); Or. REV. STAT. §§ 267.030, 267.517, amended by 2003 Or.

Laws 186; WASH. REV. CODE § 43.19.637.

' E.g.. SAN FRANCISCO ENV'T CODE § 406.

22

B. Petitioners’ Position Would Impose Substan-

tial Economic Burdens on State and Local

Economies.

The briefs of respondents and other amici discuss the

premature mortality, cancer risks, permanent lung damage,

and other grave health impacts caused by air pollution. But in

addition to these serious public health issues, air pollution

causes severe economic losses. EPA estimates that smog and

other air pollution is responsible for several billion dollars

worth of crop damage each year. See Final Rule on Ozone

Transport Commission, 60 Fed. Reg. 4712, 4713 (Jan. 24,

1995). The repair and cleaning of buildings and painted

surfaces damaged by air pollution costs tens of millions of

dollars each year. See Control of Emissions of Air Pollution

from Nonroad Diesel Engines and Fuel, 68 Fed. Reg. 28,328,

28,351 (May 23, 2003). Decreased visibility from haze

degrades the natural beauty of national parks, wilderness

areas, and local communities, thereby reducing tourism and

economic growth, /d. at 28,349-51. Air pollution harms our

nation’s fisheries and tourism industry by contributing to fish

kills from low dissolved oxygen and toxic blooms. /d. at

28,352. Without the flexibility needed to reduce motor

vehicle emissions through innovative measures such as the

Fleet Rules, state and local economies will continue to bear

these and other substantial costs.

Just as important, petitioners’ position would further harm

beleaguered state and local economies by shifting more of the

compliance burden to small businesses and other stationary

sources of air pollution. In 1997 EPA revised the federal air

quality standards for ozone and soot. See Whitman, 531 U.S.

at 463. Data for 1999-2001 show that 111 million people live

in areas in non-compliance with the ozone standard, and at

least 65 million people live in areas in non-compliance with

of the soot standard. See 68 Fed. Reg. at 28,334. Unless state

23

and local officials implement new control strategies such as

the Fleet Rules, tens of millions will continue to live in non-

attainment areas decades from now. /d. at 28,334-35.

Motor vehicles are the largest source of air pollution in the

country. See Henry A. Waxman, ef al., Cars, Fuels, and

Clean Air: A Review of Title Il of the Clean Air Act

Amendments of 1990, 21 ENvVTL. L. 1947, 1950 (1991). For

smog’s precursors—oxides of nitrogen and volatile organic

compounds (VOCs)—<cars and light trucks are projected to

account for nearly 40 percent in some cities and 20 percent

nationwide. See Control of Air Pollution from New Motor

Vehicles, 64 Fed. Reg. 26,004, 26,009 (May 13, 1999). In

the South Coast Air Basin, on-road motor vehicles contribute

more than half of these pollutants. J.A. 80. Even industry

sources acknowledge that state and local government air

quality officials must devise innovative programs to control

pollution and protect public health and the environment. See,

e.g.. Gary Polakovic, Smog Woes Back on Horizon, L.A.

TIMES, July 15, 2003, at Al (quoting an industry represen-

tative as saying: “We’re running out of time. It’s time for

the agencies to start thinking outside the box. We need to be

more creative and use a different toolbox.”).

If section 209(a) were read broadly to preclude state and

local governments from implementing creative programs to

promote the use of clean vehicles and otherwise reduce

vehicle emissions, far more of the compliance burden would

fall on small businesses and other stationary sources, with

profound economic and social consequences. '° A small dry

cleaner or manufacturing plant, for example, might be forced

'’ Christopher M. Grengs, Making the Unseen Seen: Issues and

Options in Small Business Regulatory Reform, 85 MINN. L. REV. 1957,

1975 & n.128 (2001) (discussing the economic impact of the Clean Air

Act on small businesses).

24

to reduce its hours of operation, or shut down altogether.

Moreover, businesses are prohibited from locating or ex-

panding in nonattainment areas unless new emissions are

offset by reductions elsewhere. See, e.g., 42 U.S.C.

$§ 751 1a(a)(4), (b)(5), (c)10), (d)(2), (e)(1). New businesses

might bypass nonattainment areas in favor of locating in

attainment areas. Whole communities thus could be rendered

off-limits for new development, stunting growth and

impairing quality of life for residents. If a State fails to

implement measures required in nonattainment areas, the

costs could be even greater because the Act requires EPA to

cut off federal highway funds or impose additional emission

offset requirements. 42 U.S.C. § 7509. One analyst

estimates that $80 billion in hidden costs could result from

non-compliance with federal ozone standards. See Susan E.

Dudley, Economic Impact Analyses, 16 PACE ENVTL. L. REV.

81, 83-84 (1998).

Rural areas have an especially pressing need to control

emissions from motor vehicles because emissions from

surrounding forests and other vegetation account for a

substantial portion of VOC emissions that cannot feasibly be

reduced. 64 Fed. Reg. at 26,014. To meet EPA’s new ozone

standards, these regions must focus largely on smog’s other

precursor, emissions of oxides of nitrogen, which are

produced by high-temperature combustion processes such as

those in automobiles. /d. These concerns are particu-

larly great in the rural areas of the Southeast, where

VOC emissions from vegetation are an important contributor

;

to smog.’

16

Patricia Ross McCubbin, Michigan v. EPA: Interstate Ozone

Pollution and EPA's “NOx Sip Call,” 20 St. Louts U. Pus. L. REv. 47,

61-62 (2001) (describing how state implementation plans must make

tradeoffs between sources such as motor vehicles and dry cleaners).

'’ See U.S. Congress, Office of Technology Assessment, CATCHING

OuR BREATH: NEXT STEPS FOR REDUCING URBAN OZONE 4, 98, 101

ee

25

Petitioners display no awareness of, or concern for, the

profound economic consequences for state and local gov-

ernments of their position. Affirmance of the judgment

below will promote Congress's intent to ensure that state and

local officials have the means necessary to meet the new

federal air quality standards in an economically respons-

ible way.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

TIMOTHY J. DOWLING RICHARD RUDA *

Chief Counsel Chief Counsel

COMMUNITY RIGHTS COUNSEL STATE AND LOCAL LEGAL CENTER

1301 Connecticut Ave., N.W. 444 North Capitol St., N.W.

Suite 502 Suite 345

Washington, D.C. 20036 Washington, D.C. 20001

(202) 296-6889 (202) 434-4850

* Counsel of Record for the

November 17, 2003 Amici Curiae

(1989), at http://www.wws.princeton.edu/~ota/disk 1/1989/8906_n.html

(areas where VOC contributions from vegetation exceed 25% are almost

exclusively in the Southeast).