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

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No. 02-1343 MU L) 2603

IN THE

Supreme Court of the United States

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

Vv.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, ef ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF NATURAL GAS VEHICLE COALITION

AND CALIFORNIA NATURAL GAS VEHICLE

COALITION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

GILBERT P. SPERLING GARY S. GUZY *

General Counsel FOLEY HOAG LLP

NATURAL GAS VEHICLE 1747 Pennsylvania Ave., N.W.

COALITION Suite 1200

400 North Capital Street, N.W. = Washington, D.C. 20006

Washington, D.C. 20001 (202) 223-1200

2) “

(202) 824-7360 Counsel for Amici Curiae

* Counsel of Record

ES A SE ST A RE NO NEN SI

WILSON-EPES PRINTING Co., INC. — (2 <) 789-0096 — WASHINGTON, D. C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ...........:cccccssseesssseeeesereeseeees ill

INTERESTS OF AMICI CURTAE.........00c:ceccceeeseeeeeeneeeees I

SUMMARY OF ARGUMENT ...........::ccccceeesseeeeeeeeneeees - @

ARGUMENT..........ccccccsssssscscsssssssessssereressssssenssssssssnossees 3

SECTION 209(A) DOES NOT PREEMPT THE

SOUTH COAST AIR QUALITY MANAGE-

MENT DISTRICT’S FLEET RULES................20+ 3

A. The Clean Air Act Contemplates Dual

Federal and State Regulation...............++100+ 4

B. Natural Gas Vehicles Provide Important

Clean Air Attainment Benefits for States

and Localities to Protect Public Health ....... 6

1. Diesel Exhaust Air Pollution Poses a

Significant Public Health Concern in

ee EG... sccnsnnencntbnensononnnsenes 6

2. Natural Gas Vehicles Provide a Clean,

Cost Effective, and Increasingly Prev-

alent Low Pollution Alternative ............ 0)

C. The SCAQMD Fleet Rules Are Not A

Preempted “Standard” Under Section

FEUD ccccccceccsccnsscncccssncessscensnvecsnsesccsescossoneosese 15

1. The Plain Language of the Clean Air

Act Shows that Congress Limited Pre-

emption to the Precise and Narrow

Concept of “Standards” Rather than to

Any Action Affecting Emissions........... 15

(i)

TABLE OF CONTENTS—Continued

Page

2. The Text and Structure of Other Clean

Air Act Provisions Support Affirming

the Lower Courts’ Opinions .............00++ 21

3. Narrow Congressional Concern About

a “Third Car” Is Not Implicated by

South Coast’s Action ........scccceseeeesseeeees 24

4. The Act Permits State and Local

Governments to Impose Reasonable

Restrictions on Commercial Fleet

Activity as an Attainment Strategy........ 28

CONCLUBIONN ..1:0-cscocssensesseseenesennsaisnniiannnnnnnnnn 29

iil

TABLE OF AUTHORITIES

CASES

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

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

SE TTI iicrrcussumetmennesnemesernnensncaneneneanessnnene

America Automobile Manufacturers Association

v. Mass. Department of Environmental Protec-

tion, 163 F.3d 74 (Ist Cir, 1998)... cccccceeeeees

American Automobile Manufacturers Association

v. Cahill, 973 F. Supp. 288 (N.D.N.Y. 1997)....

Bailey v. United States, 516 U.S. 137 (1995)........

California Division of Labor Standards Enforce-

ment v. Dillingham Construction, N.A., Inc.,

te es BE COU ED ccncccscenmnsnsessssesvessessezecccesenees

Chevron, U.SA., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)...

City of Chicago v. Environmental Defense Fund,

Be ey SD CD crerceczcnnssczecescnecceceveseessensesese

Crosby v. National Foreign Trade Council, 530

ED cxicrncennenesenssenenscrennssumeensssevessesnene

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141

Engine Manufacturers Association v. EPA, 88

ff al

Geier v. American Honda Motor Co., Inc., 529

Motor and Equipment Manufacturers Associa-

tion, Inc. v. EPA, 627 F.2d 1095 (D.C. Cir.

FFT WP ccaczecvseeessreccnsesnssecevevessesneesseeccessocccesoces 4, 19,

Motor Vehicle Manufacturers Association of

U.S., Inc. v. New York State Dep't of

Environmental Conservation, 79 F.3d 1298

CBB Cie. FDBG) nccceccccrccreccccscccccsccccseccccccccecseccecesees

Page

20,

21,

TABLE OF AUTHORITIES—Continued

Page

Motor Vehicle Manufacturers Association of

U.S., Inc. v. New York State Dep't of Environ-

mental Conservation, 17 F.3d 521 (2d Cir.

Pep cnsunseemessenmennemenmmnagsnmeat 5, 24, 25

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Inc., 514 U.S. 645

en 20

National Petrochemical & Refiners Association

v. EPA, 287 F.3d 1130 (D.C. Cir. 2002) ........... 1]

People of State of California v. Department of

the Navy, 624 F.2d 885 (9th Cir. 1980), aff g,

431 F. Supp. 1271 (N.D. Cal. 1977).................. 26

Rice v. Santa Fe Elevator Corp., 33\ U.S. 218

ee lesstnenunnengumnnmemmnimmennmentete 4,27

Sierra Club v. EPA, 311 F.3d 853 (7th Cir.

ee pissinsmmEE 5

Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir.

0 5

Train v. Natural Resources Defense Council,

BRP, Gan Te gee eEe cnnemmmnerememen 4,5

Union Electric Co. v. EPA, 427 U.S. 246

Sf 5

Whitman v. American Trucking Associations,

me ae 13

STATUTES AND REGULATIONS

Se ee © Pe etnies 4

Ree 5

Ge Gis © Fe recesses 4

Se 5

ap es 0 SUD cnneeencammnianeemens 5, 22

Re TT 24

SB CK. © CSG ccccsssresnseeenesesseeeeeen 16

TABLE OF AUTHORITIES—Continued

Page

4B UBL. 5 TIO aD ccccersssccscsscssesssscsssvecscssessssee 5

42 U.S.C. § 751 Lac i(4)-(S)...ereeereeeereeeeneeeeeeeenenees 22

42 UBL. § TSU Calg ES) nncccccccccccsesscccscccevssesscsssesees 5

DES dl). 15, 18

43 UBL. 8 FSSOCIAD ccccsnscssesccssssssvssssessensssssensese 18

GB UBL. © TES Opp cccccscsccevesvecsccsscscsssessseressenssessese 19

gb od) 15

GB UB. § FSS SED ccccccecccessssesssssssesssvssssssnsssessss 16, 17, 20

4B UBL. § FOC RGD eccccssscccssssncsssessssessssssesesssessessase 16

42 UBL. § TSSSG TRC) cccccccccccccscsscssveccvsscsesscsese 20

GB ULB. © TOG cecensrscvscecsenscssssesersssesesssszecssese 19

42 UBL. 9 TSSSEA EE) ccccccsccscccszscscsccecesssesesssves 20

GEE ob 26

4B UBC. § TSBEAD cccevcesnscssssssveessssesssscsseeessssessesese 22

I _—_——————————— 22

gb od). 22, 23

GB UBL. § FEED ccsnssccssrssesssssssseemenseesansvessnssenssesee 24

Aviation Investment and Reform Act for the 21st

Century, 49 U.S.C. § 47136.........cccccsseeeeenerenees 13

Energy Policy Act of 1992, 42 U.S.C. § 13201 et

SIDE. .cczsrecessenccssaresesqeunsesssseranssessenssssesssnssessssseseese 24

Cal. Code Regs. tit. 13, § 1962(c)(2)(A), (C)-(D)... 10

Va. Code. Ann. § 33.1-46.2 (Michie Supp. 2003) .. 17

Dallas City Code § 44-7.2.1( a) ........:ccccceesceseeeeeeeees 18

MISCELLANEOUS

American Public Transportation Ass'n, 200/

Transit Vehicle Book (June 2001) .............0000000 12

Ashley Morris Bale, The Newest Frontier in

Motor Vehicle Emission Control: The Clean

Fuel Vehicle, 15 Va. Envtl. L. J. 213 (1995-

eee 25

TABLE OF AUTHORITIES—Continued

Brief of Petitioner Cummins Inc., National

Petrochemical & Refineries Ass'n, 287 F.3d

1130 (D.C. Cir. 2002) (No. 01-1052)................

California Air Resources Board, California's Air

Quality History Key Events (2003), avail-

able at hitp://www.arb.ca.gov/html/brochure/

California Air Resources Board, Characterizing

The Range Of Children’s Pollutant Exposure

During School Bus Commutes, available at

http://www.arb.ca.gov/research/schoolbus/sch

oolbus.htm (last visited Oct. 10, 2003)..............

Califomnia Environmental Protection Agency,

The Carl Moyer Memorial Air Quality Stand-

ards Attainment Program Guidelines (2003),

available at hitp://www.arb.ca.gov/msprog/

moyer/2003moyerguide.pdf .............ccccecceeseenee

Centers for Disease Control and Prevention,

Summary Health Statistics for U.S. Children:

National Health Interview Survey, 2000, Vital

and Health Statistics (Oct. 2003) ...........ccccceecees

City of Palm Desert Exclusive Franchise

Contract to Perform Solid Waste Collection

and Recycling Services (July 1, 1995) ..............

Clean Cities Program, Dep't of Energy

Compilation, at http://www.ccities.doe.gov/

vbg/progs/laws.cgi (last visited Nov. 6, 2003) ..

Clean Diesel Independent Review Subcomm. of

the Clean Air Act Advisory Committee,

Meeting Technology Challenges for the 2007

Heavy-Duty Highway Diesel Rule (Oct. 2002),

available at http://www.epa.gow/air/caaac/

diesel/finalcdirpreport 103002 pdf ..............0000

Page

vii

TABLE OF AUTHORITIES—Continued

Clean Vehicle Education Foundation, AF Vs in

the Airport Shuttle Industry: Characterization

of a Niche Market, available at hitp://

www.ccities.doe.gov/toolkit/pdfs/section3_ma

rket.pdf (last visited Nov. 13, 2003).........:00+

Coalition for Clean Air, Fast Facts, available at

http://www.coalitionforcleanair.org/cca/facts.h

tm (last visited Nov. 6, 2003) ........:ccceeccseeeeeeeees

David P. Currie, Motor Vehicle Air Pollution:

State Authority and Federal Pre-Emption, 68

Mich. L. Rev. 1083 (1969-70)..........cccecesseeeeeees

Dallas/Fort Worth International Airport, Draft

Commercial Ground Transportation Transi-

tion Plan to Clean Vehicle Fleets (Dec. 13,

Dep't of Energy, The Next Generation Natural

Gas Vehicle Activity, DOE/GO-102003-1779

G0, FBP ccoscsccsscavscsssecsmsseessssssemssenmmmnnensassnsse

Dep't of Energy, Reasons to Buy Alternative

Fuel Vehicles, at hitp://www.ccities.doe.

gov/vbg/fleets/about_buying.html (last visited

Bat, 26, FED cccnscsccsssesesesssssssescscesssssnscsssonnssssseee

Dep’t of Transportation, Repert to Congress:

Inherently Low-Emission Airport Vehicle

Pilot Program (Nov. 2001), available at htp://

www2.faa.gov/arp/app600/ ileav/RTCaq.htm...

EPA, Clean School Bus USA Basic Information,

available at http://www.epa.gov/otaq/school-

bus/basicinfo.htm (last modified Oct. 22,

EPA, Health Assessment Document for Diesel

Engine Exhaust, EPA/600/8-90/057F (May, |.

2002), available at http://cfptb.epa.gev/

ncea/cfm/recordisplay.cfm?deid =29060...........

Page

Vili

TABLE OF AUTHORITIES—Continued

EPA Opinion on Issues Raised by Am. Auto.

Mfrs. Ass'n v. Mass. Dep't of Envil.

Protection, 163 F.3d 74 (1st Cir. 1998) (Sept.

EPA Press Release, Whitman Announces New

Partnership to Reduce Children’s Exposure to

Emissions from Diesel School Buses (April 7,

2003), available at http://www.epa.gov/news-

room/headline2_040703 NUM .........cccceeceereeeees

Leslie Eudy, Natural Gas in Transit Fleets: A

Review of the Transit Experience, National

Renewable Energy Laboratory (Feb. 2002) ......

Leslie Eudy, SuperShuttle CNG Fleet Eval-

uation, National Renewable Energy Labora-

tory (Oct. 2000) .0.......eeeeeeees aseneacmnennsmemanenssceneanes

Executive Order No. 13045, Protection of

Children from Environmental Health Risks

and Safety Risks (April 21, 1997)... cece

FAA Selects 10 Airports for $17.3 Million in

Grants for AFVs, New Fuels & Vehicles

SERED, TURD Tg GINO semeccsnecssnenssnenscsentnenesseessnrsens

59 Fed. Reg. 50,042, 50,070-71 (1994) 0.0.00...

63 Fed. Reg. 20,103 (1998):

TABLE OF AUTHORITIES—Continued

Franchise Agreement Between the City of

Alameda and Alameda County Industries AR,

Inc. for Solid Waste, Recyclable Materials and

Organic Materials Services (July 3, 2002) ........

Hearings on Automotive Air Pollution before the

Subcomm. On Air and Water Pollution of the

Senate Comm. on Public Works, 90th Cong.,

DS GED. CES Goa Prcnenescnncensccsssmnvsseassnsenssssscsnse

H.R. Rep. No. 90-728 (1967) ......:ccssccseeeseeessereerens

Patricia Monahan, Pollution Report Card:

Grading America’s School Bus Fleet, Union of

Page

Concerned Scientists (2002) .........cccccccceeeeeeees 10, 12, 18

Edmund S. Muskie, Role of the Federal Gov-

ernment in Air Pollution Control, \0 Ariz. L.

De FF GRD cesenensssennsenssteninensenencsetnesssssersaneaien

The Natural Gas Vehicle Coalition, 2002 Natural

Gas Vehicle Coalition Purchasing Guide,

available at http://www.afdc.doe.gov/pdfs/

TREY GTR cancncscscercsscesscccssescccssansonsccnssaneees

Natural Resources Defense Council, No Breath-

ing in the Aisles: Diesel Exhaust Inside School

RNS Gs BOP ccccncenscnrnstsrassmmesseseesteenecesssees

Prepared Testimony of Michael L. Eaves, Appli-

cation No. 02-03-047, 2002 LEV Proceeding

> GRID Fb BID conssnsnccnrensncasenscccnsesesssscscensssens

Press Release, Cummins Westport Inc., New

Cummins Westport Engine Selected by Los

Angeles for up to 600 Buses (July 18, 2003),

available at http://www.cumminswestport.

CORY PTCSAARGER DD 0000000ccccccccccseseveessceessesesesesees

SCAQMD Resolution No. 00-XX .....ccccceeeeeeeeees

9,12

TABLE OF AUTHORITIES—Continued

Jan Stevens, Air Pollution and the Federal

System: Responses to Felt Necessities, 22

Hastings L.J. 661 (1970-71) .......cecccesseeeeeeeeeees

ULCA Institute of the Environment, Southern

California Environmental Report Card 2003

Henry A. Waxman, et. al., A Review of Major

Provisions: Cars, Fuels and Clean Air: A Re-

view of Title Il of the Clean Air Act Amend-

ments of 1990, 21 Envtl. L. 1947 (1991)...........

Page

IN THE

Supreme Court of the Anited States

No. 02-1343

_ 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 NATURAL GAS VEHICLE COALITION

AND CALIFORNIA NATURAL GAS VEHICLE

COALITION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTERESTS OF AMICI CURIAE

The Natural Gas Vehicle Coalition (““NGVC”) and the

California Natural Gas Vehicle Coalition (“CNGVC”")

respectfully submit this joint brief in accordance with

Supreme Court Rule 37.3.' NGVC,.a nonprofit trade organ-

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

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

parties’ letters of consent have been lodged with the Clerk of the Court.

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

this brief was not authored in whole or in part by counsel for any party

and that no person or entity, other than amici curiae and their mem-

bers, made a monetary contribution to the preparation or submission of

this brief.

ization headquartered in Washington, D.C., is a national

organization dedicated to the development of a growing,

sustainable, and profitable market for vehicles powered by

natural gas and hydrogen. NGVC represents more than 180

companies interested in the promotion and use of natural gas

and hydrogen as transportation fuels, including: engine,

vehicle, and equipment manufacturers; natural gas

companies; fleet operators; and service providers. CNGVC, a

non-profit trade organization headquartered in Sacramento,

California, seeks to promote the continued expansion of the

natural gas vehicle market in California, the State that leads

the nation in natural gas vehicle usage. The outcome of this

action may determine whether the South Coast Air Quality

Management District (“SCAQMD” or “South Coast”) and

other localities and government entities throughout the

country may impose reasonable restrictions on commercial

and municipal use of fleet vehicles as a critical means to

attaining public health air quality standards that also promote

the market for cleaner vehicles and fuels.

SUMMARY OF ARGUMENT

For more than thirty years, and through multiple revisions,

Congress has established a framework dependent upon dual

federal and state regulation under the Clean Air Act to deliver

clean and healthy air to the nation. Under this approach, the

federal government establishes nationwide public health air

quality standards and the States retain the responsibility

for devising the strategies to meet these standards in a

timely fashion.

Motor vehicle emissions—and particularly heavy-duty

diesel emissions—pose significant air quality challenges,

especially in the South Coast region. The continued violation

of public health air standards in this region has severe public

health consequences. Natural gas vehicles are becoming

increasingly prevalent because they are far cleaner than their

conventionally fueled counterparts and they are cost-effec-

tive. They are an important part of the air quicity solution

and lend themselves particularly well to being used in

centrally fueled fleets.

The South Coast Air Quality Management District’s Fleet

Rules foster the deployment of this cleaner technology to

vehicles used to deliver municipal and commercial services.

The rules are reasonable attainment strategies and a vital part

of meeting the region’s clean air goals.

The plain language of the Clean Air Act’s preemption

provision, the structure of that statute, Congress’ underlying

purpose, and the interpretive case law all support a narrow

reading of the Section 209 preemption provision. The Act’s

preemption is limited to motor vehicle exhaust emissions

standards. Congress made clear that such standards are

different from other, non-preempted, requirements. Congress

sought to strike a balance between the need for a national

standard, the unique situation in California, and the needs of

areas around the nation to come into attainment with public

health air quality standards. The limited effect of the pre-

emption provision is consistent with Congress’ other

objectives of deferring to California’s motor vehicle

regulation leadership and the retention of state authority and

responsibility for delivering clean air. South Coast’s Fleet

Rules do not impose new exhaust emissions standards upon

manufacturers, but are a reasonable attainment strategy for

achieving healthy air. They are not preempted by the Act.

ARGUMENT

SECTION 209A) DOES NOT PREEMPT THE

SOUTH COAST AIR QUALITY MANAGE-

MENT DISTRICT’S FLEET RULES

When Congress legislates in a field traditionally occupied

by the States, the Court has consistently “start{ed] with the

assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). State law is

preempted when Congress intends to “occupy the field”

through a pervasive regulatory scheme or when there is an

explicit conflict with a federal statute where it is impossible

to comply with both the state and federal law. Crosby v.

National Foreign Trade Council, 530 U.S. 363, 372-73

(2000). And where there is an express preemption provision,

no need exists to turn to a theory of implication. Motor and

Equipment Mfrs Ass'n, Inc. v. EPA, 627 F.2d 1095, 1107

(D.C. Cir. 1979) (““MEMA”). The scope of preemption is

best assessed “by examining the federal statute as a whole

and identifying its purpose and intended effects.” Crosby v.

National Foreign Trade Council, 530 U.S. at 373. See also

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147

(2001); California Div. of Labor Standards Enforcement v.

Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997),

A. The Clean Air Act Contemplates Dual Federal

and State Regulation

For more than thirty years, and through multiple revisions,

Congress has established a framework dependent upon dual

federal and state regulation under the Clean Air Act. Under

this approach, the federal government establishes nationwide

public health air quality standards and the States retain the

responsibility for devising the strategies to meet these

standards in a timely fashion. See, e.g., 42 U.S.C. § 7401(a);

42 U.S.C. § 7410; Chevron, U.S.A., Inc. v. Natural Res.

Defense Council, Inc., 467 U.S. 837, 845-46 (1984); Train

v. Natural Res. Defense Council, Inc., 421 U.S. 60,

64-65 (1975).

Except in limited areas, Congress expressly provided that

States or their political subdivisions had the right to “adopt or

enforce any standard or limitation respecting emissions of air

pollutants or any requirement respecting control or abatement

of air pollution.” 42 U.S.C. § 7416. Indeed,

[t]he Act gives the Agency no authority to question the

wisdom of a State’s choices of emission limitations if

they are part of a plan which satisfies the standards of

Section 110(a)(2). . . . Thus, so long as the ultimate

effect of a State’s choice of emissions limitations is

compliance with the national standards for ambient air,

the State is at liberty to adopt whatever mix of emissions

limitations it deems best suited to its particular situation.

Train, 421 U.S. at 79. Moreover, States may even sub-

mit implementation plans more stringent than federal law

requires. Union Elec. Co. v. EPA, 427 U.S. 246,

249-50 (1976).

Thus, the issue in this case must be assessed against the

backdrop of a vital role for States in solving the nation’s air

pollution problem. Moreover, States can face significant

sanctions if they fail to attain the national public health air

quality standards in a timely fashion. See, e.g., 42 U.S.C.

§§ 7410(m), 7509(a)-(b); Sierra Club v. EPA, 311 F.3d 853

(7th Cir. 2002); Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir.

2002); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. New York

State Dep't of Envt'l Conservation, 17 F.3d 521, 527 (2d Cir.

1994) (““MVMA"). Congress has encouraged States to

employ a wide variety of inventive methods to meet their

obligations under the Act. A State can implement programs

for improved public transit, restrict certain roads and lanes

for passenger buses ‘or high occupancy vehicles, and create

traffic flow improvement programs that achieve emission

reductions. 42 U.S.C. § 7408(f)(1)(A). Likewise, States can

create economic incentive programs that include “incentives

and requirements to reduce vehicle emissions.” 42 U.S.C. §

751 la(g)(4).

B. Natural Gas Vehicles Provide Important Clean

Air Attainment Benefits for States and Local-

ities to Protect Public Health

1. Diesel Exhaust Air Pollution Poses a Sig-

nificant Public Health Concern in Southern

California

The significant and particular challenge posed by auto-

mobile emissions has long been recognized. See, e.g.,

Edmund S. Muskie, Role of the Federal Government in Air

Pollution Control, 10 Ariz. L. Rev. 17, 19 (1968)

(“automobile exhaust was cited [in the 1963 hearings] as

responsible for some 50 percent of the national air pollution

problem” (quoting Special Senate Subcomm. on Air and

Water Pollution, 88th Cong., 2d Sess., Steps Toward Clean

Air 3 (Comm. Print 1964))). The significant health concerns

posed by motor vehicle pollution, and particularly diesel

exhaust, continue today.

California now has a population of over 34 million people,

and as of the year 2000 had 23.4 million registered motor

vehicles. California Air Resources Board, California's Air

Quality History Key Events (2003), available at http://www.

arb.ca.gov/html/brochure/history.htm. Two hundred eighty

billion vehicle miles were traveled in the State that year. /d.

The South Coast Air Basin is the only area of the country

classified by the Environmental Protection Agency (“EPA”)

as an “extreme nonattainment area”. JA 80. In that area, on-

road motor vehicles contribute more than half of all

hydrocarbons, nitrogen oxides, and carbon monoxide to the

emissions inventory. JA 80. In 1998, the year for which

SCAQMD had the most recent data when considering the

Fleet Rules, the area within SCAQMD’s jurisdiction

exceeded federal standards for ozone, carbon monoxide or

particulate matter on a total of 97 days—far more frequently

than in any other area of the United States. JA 244-45. A

recent study by the University of California Los Angeles

Institute of the Environment fourd that air pollution is

estimated to cause up to 9,000 premature deaths each year in

the Los Angeles basin and that smog continues to worsen.

ULCA Institute of the Environment, Southern California

Environmental Report Card 2003 24 (2003).

Diesel emissions are a particular health concern. EPA has

found that:

[t]he pollution emitted by diesel engines contributes

greatly to our nation’s continuing air quality problems.

Even with more stringent heavy-duty highway engine

standards set to take effect in 2004, these engines will

continue to emit large amounts of nitrogen oxides and

particulate matter, both of which contribute to serious

public health problems in the United States. These

problems include premature mortality, aggravation of

respiratory and cardiovascular disease, aggravation of

existing asthma, acute respiratory symptoms, chronic

bronchitis, and decreased lung function. Numerous

studies also link diesel exhaust to increased incidence of

lung cancer. We believe that diesel exhaust is likely to

be carcinogenic to humans by inhalation and that this

cancer hazard exists for occupational and environmental

levels of exposure.

66 Fed. Reg. 5001, 5002 (2001); accord Clean Diesel

Independent Review Subcomm. of the Clean Air Act Advis-

ory Committee, Meeting Technology Challenges for the 2007

Heavy-Duty Highway Diesel Rule (Oct. 2002), available

at http://www.epa.gov/air/caaac/diesel/finalcdirpreport 103002.

pdf; EPA, Health Assessment Document for Diesel Engine

Exhaust, EPA/600/8-90/0S7F (May 1, 2002), available at

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid =29060;

66 Fed. Reg. at 5022-23 (discussing health studies supporting

lung cancer findings). Some of these health effects manifest

increased hospital admissions and emergency room visits,

school absences, work loss days, and restricted activity days.

66 Fed. Reg. at 5006. EPA’s judgment as to the likely

carcinogenic effect of diesel exhaust is shared by the World

Health Organization, the National Toxicology Program of the

U.S. Department of Health and Human Services, the National

Institute of Occupational Safety and Health, and the Office of

Environmental Health Hazard Assessment of the California

Environmental Protection Agency. 66 Fed. Reg. at 5022-23

nn.4 1-46.

A comprehensive study conducted by SCAQMD—under

the direction of a panel of scientists from universities, an

environmental group, businesses and other government

agencies—found that over 70 percent of cancer risk in the

basin results from diesel particulate emissions. JA 256-57,

271. Asthma effects from diesel particulates are of particular

concern because of the increasing prevalence of asthma

among children and the frequency of childhood school bus

exposures. Children are particularly susceptible to environ-

mental effects because they breathe more per pound of body

weight than do adults and they have periods of developmental

susceptibility. See Executive Order No. 13045, Protection of

Children from Environmental Health Risks and Safety Risks

(April 21, 1997). Approximately nine million children in the

United States under 18 years of age have been diagnosed with

asthma. Centers for Disease Control and Prevention, Sum-

mary Health Statistics for U.S. Children: National Health

Interview Survey, 2000 3, Vital and Health Statistics

(Oct. 2003).

As EPA’s former Administrator has noted, “[e]very day in

America, 24 million children travel safely to and from school

on 444,000 school buses — that’s four billion miles each year,

the equivalent of four round-trip visits to Jupiter. That’s a lot

of driving and a lot of air pollution.” EPA Press Release,

Whitman Announces New Partnership to Reduce Children’s

Exposure to Emissions from Diesel School Buses (April 7,

2003), available at~ http://www.epa.gov/newsroom/head-

line2_040703.htm. Researchers from the University of

California Berkeley School of Public Health found that a

child riding inside of a diesel school bus may be exposed to

as much as four times the level of toxic diesel exhaust as

someone riding in a car ahead of it. Natural Resources

Defense Council, No Breathing in the Aisles: Diesel Exhaust

Inside School Buses 8 (Jan. 2001). These exposures pose as

much as 23 to 46 times the cancer risk as risk levels

considered significant under the Clean Air Act. /d. at 11.

The introduction of cleaner buses “will result in substantial

health benefits including: fewer cases of lower respiratory

symptoms in healthy children; fewer cases of upper

respiratory and asthma symptoms in asthmatic children; and

fewer cases of acute bronchitis.” EPA, Clean School Bus

USA Basic Information, available at hittp://www.epa.gov/

otaq/schoolbus/basicinfo.htm (last modified Oct. 22, 2003).

2. Natural Gas Vehicles Provide a Clean, Cost

Effective, and Increasingly Prevalent Low

Pollution Alternative

Amici Alliance of Automobile Manufacturers, et. al.,

(“Alliance Brief’) assert without support that the emissions

difference between diesel and natural gas vehicles has been

“neutralized” and that the Fleet Rules as a result are a

“throwback” to an uninformed era. Alliance Br. 3, 10. The

data tell a very different story. Natural gas vehicles, such as

those encouraged by the Fleet Rules, provide an important

strategy for addressing these severe and continuing pollution

concerns. Natural gas vehicles can be significantly cleaner on

ozone-forming emissions than gasoline vehicles, and even

cleaner than those with respect to their diesel counter-

parts. See, e.g., Dep't of Energy, Reasons to Buy Alternative

Fuel Vehicles, at http://www.ccities.doe.gov/vbg/fleets/about_

buying.html (last visited Oct. 21, 2003). Because of the

reduced complexity of their emissions control systems due to

their inherently clean performance, emissions reductions from

natural gas vehicles are more reliable and durable than those

from conventionally-fueled vehicles.’ Patricia Monahan,

Pollution Report Card: Grading America’s School Bus Fleet

26, Union of Concerned Scientists (2002). They also do not

have emissions from the engine itself or during refueling—

known as vapor evaporative emissions—which can constitute

a significant part of the emissions from gasoline or diesel

fueled engines. 59 Fed. Reg. 50,042, 50,070-71 (1994).

A recent study conducted by the University of California at

Riverside and Los Angeles found that children riding on

diesel buses meeting current requirements had two to five

times higher exposures to harmful pollutants than those riding

on natural gas buses. California Air Resources Board,

Characterizing The Range Of Children's Pollutant Exposure

During School Bus Commutes, available at hitp://www.arb.

ca.gov/research/schoolbus/schoolbus.htm (last visited Oct.

10, 2003). Indeed, the natural gas buses were cleaner than

even the best controlled diesels. /d. Natural gas school buses

emit 90 percent less toxic soot than conventional new diesel-

powered buses and are over 98 percent cleaner than older

diesel buses. Monahan, Pollution Report Card: Grading

America’s School Bus Fleets, supra at x. In considering the

Fleet Rules, SCAQMD staff explained that “one diesel refuse

truck is estimated to have the same toxicity as up to 74

corresponding natural gas refuse trucks ....” JA 130.

While some of these advantages for natural gas vehicles

will be lessened when tougher new heavy duty diesel

standards promulgated by EPA phase in, these regulations

apply only to new engines and it will be many years before

the bulk of the diesel vehicles on the road turns over to these

cleaner vehicles. 66 Fed. Reg. at 5012. Fleets will not fully

comply with that rule until the year 2030. Jd. at 5014.

One of California’s clean car standards, the AT-PZEV standard,

requires manufacturers to certify the emissions durability for 15 years or

150,000 miles. Cal. Code Regs. tit. 13, § 1962(c)(2)A), (C)-(D) (2003).

——

Moreover, diesel engine manufacturers, including petitioner

EMA’s members, have repeatedly raised doubts about their

ability to conform with the significantly cleaner standards that

will take effect for vehicles manufactured in 2007 and after.

See, e.g., National Petrochemical & Refiners Ass'n v. EPA,

287 F.3d 1130, 1136-1138 (D.C. Cir. 2002); Brief of

Petitioner Cummins Inc. at 4, National Petrochemical &

Refineries Ass'n, 287 F.3d 1130 (D.C. Cir. 2002) (No. 01-

1052) (“Technology does not exist today to meet the

standards for heavy-duty diesel engines. Moreover, EPA has

not identified any path toward development of such

technology by 2007... .”).

Alternative fueled vehicles are becoming increasingly

prevalent because they are both a sound environmental and a

cost effective choice. While diesel engine manufacturers

struggle to meet the upcoming new emissions standards,

recent government testing has also shown that some natural

gas heavy-duty engines are already twice as clean as the 2007

EPA standards—and cleaner than any diesel engine available

today. Dep't of Energy, The Next Generation Natural Gas

Vehicle Activity, DOE/GO-102003-1779 (Sept. 2003). One

natural gas vehicle manufacturer recently completed a

purchase contract with the Metropolitan Transit Authority of

Los Angeles County to supply between 200 and 600 buses

with an engine targeted to achieve 40 percent lower nitrogen

oxide emissions than the best equivalent low-emissions diesel

engines certified to date. Press Release, Cummins Westport

Inc., New Cummins Westport Engine Selected by Los

Angeles for up to 600 Buses (July 18, 2003), available at

http://www.cumminswestport.com/press/index.php. This en-

gine is also expected to be certified for particulate matter at a

level that is 80 percent lower than those set by EPA for

regulations for transit buses. /d. Indeed, the cleanest internal

combustion engine light-duty vehicle commercially available

at the time of the consideration of the Fleet Rules was a

compressed natural gas powered Honda Civic, which is on

average 90 percent cleaner than the average new 2000 model

year vehicle. JA 86-87.

The Fleet Rules are readily achievable. There are almost

130,000 natural gas vehicles on the nation’s roads today.

Leslie Eudy, Natural Gas in Transit Fleets: A Review of the

Transit Experience 2, National Renewable Energy Laboratory

(Feb. 2002). There are 5,000 natural gas transit buses—

almost ten percent of the total—currently on the road.

American Public Transportation Ass'n, 200] Transit Vehicle

Book 368, 638 (June 2001). Approximately 22 percent of all

new transit bus orders are for natural gas. Eudy, Natural Gas

in Transit Fleets, supra, at 2. School districts in at least 19

States currently use natural gas buses. Monahan, supra, at x;

NRDC, No Breathing in the Aisles, supra, at 24. —_ Natural

gas transit buses are used in cities from New York to Los

Angeles. Monahan, supra, at 29. Natural gas vehicles also

can be approximately 25 per cent or more cost effective than

gasoline or diesel vehicles.’ Leslie Eudy, SuperShuttle CNG

Fleet Evaluation, National Renewable Energy Laboratory 13

(Oct. 2000); Monahan, supra, at x, 29 (citing Sacramento

Regional Transit District and SunLine Transit Agency,

Three Year Comparison of Natural Gas and Diesel Transit

Buses (1999)).

The Court has recognized the significant role that

“technology forcing” can play in encouraging the devel-

opment of new and cost-effective approaches to meeting

* Any past concern about the availability of a compressed natural gas

fuel infrastructure in Southern California is now misplaced. In testimony

before the California Public Utilities Commission, Southern California

Gas Company noted that in 2001 there were 160 fueling stations in that

region. Prepared Testimony of Michael L. Eaves, Application No. 02-03-

047, 2002 LEV Proceeding (March 25, 2002) at 26, 33.

pollution challenges. Justice Breyer reviewed the history of

these efforts and found that:

[t}hose persons, for example, who opposed the 1970

Act’s insistence on a 90% reduction in auto emission

pollutants, on the ground of excessive cost, saw the

development of catalytic converter technology that

helped achieve substantial reductions without the

economic catastrophe that some had feared.

Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457,

492 (2001) (Breyer, J., concurring).

Congress has also long recognized that, for several reasons,

fleets can be particularly cost-effective places to achieve

emissions reductions and pioneer new technologies:

fleets represent a logical spot to introduce clean-fuel

vehicles. Fleet operators have central refueling facilities

that should simplify the transition to new fuels. They

can provide regular professional maintenance for early

models. And per vehicle, they drive twice as many

miles as vehicles used by the general public. This

affords fleet vehicles the best opportunity to take

advantage of the fuel savings that certain alternative

fuels (particularly natural gas and electricity) may

provide.

Henry A. Waxman, et. al., A Review of Major Provisions:

Cars, Fuels and Clean Air: A Review of Title Il of the Clean

Air Act Amendmenis of 1990, 21 Envtl L. 1947, 2002 (1991)

(citing Office of Technology Assessment, Catching Our

Breath: Next Steps for Reducing Urban Ozone 188 (1989)).

Significant incentives for developing alternative fleets have

been created by the federal government. These incentives

have occurred with, at a minimum, the acquiescence of

Congressional appropriators. The Federal Aviation Adminis-

tration, for instance, has established a $17.3 million grant

program pursuant to the Aviation Investment and Reform Act

for the 21st Century, 49 U.S.C. § 47136, to encourage the use

of alternative fuel vehicles in fleets operating at airports, and

the Secretary of Transportation provides regular reports to

Congress on this program. See Dep’t of Transporta-

tion, Report to Congress: Inherentiy Low-Emission Airport

Vehicle Pilot Program (Nov. 2001), available at http://

www2.faa.gov/arp/app600/ileav/RTCag.htm; FAA Selects 10

Airports for $17.3 Million in Grants for AFVs 5-6, New Fuels

& Vehicles Report (June 7, 2001).

Airport use of alternative fueled vehicles provides a

particular demonstration of their benefits. Many airports

operate in areas not meeting public health air quality

standards, and airports frequently have huge motor vehicle

emissions inventories. Los Angeles International Airport, for

instance, is the second largest industrial smog source in the

Los Angeles Area. Coalition for Clean Air, Fast Facts 3,

available at http://www.coalitionforcleanair.org/cca/facts.htm

(last visited Nov. 6, 2003). Airport motor vehicle fleets today

can have even more intensive use than Congress recognized

in 1990, amounting to ten to twenty times the fuel use of

private vehicles. A typical airport shuttle bus travels ap-

proximately 60,000 miles per year. Clean Vehicle Education

Foundation, AFVs in the Airport Shuttle Industry: Char-

acterization of a Niche Market 17, available at http://www.

ccities.doe.gov/toolkit/pdfs/section3_market.pdf (last visited

Nov. 13, 2003).

Dallas/Fort Worth has a draft policy that would require all

commercial ground transportation vehicles to consist of 100%

Ultra Low Emissions Vehicle certified vehicles or the

equivalent by 2007. Dallas/Fort Worth International Airport,

Draft Commercial Ground Transportation Transition Plan to

Clean Vehicle Fleets (Dec. 13, 2002). All taxicabs, luxury

sedans, shared ride/shuttles, hotel shuttles, off-airport parking

shuttles, and other courtesy vehicles that are added to a

company’s fleet operating at the Dallas/Fort Worth Airport

must be at a minimum LEV or the equivalent after 30 days of

the plan’s adoption. /d. Municipalities likewise have chosen

Pe)

to contract for services with fleets that have made the

commitment to transition to lesser-polluting alternative fuel

vehicles. See, e.g., City of Palm Desert Exclusive Franchise

Contract to Perform Solid Waste Collection and Recycling

Services (July 1, 1995)“CONTRACTOR agrees that a

minimum of 50% of new engines for its entire fleet will be

alternative fuel vehicles.); Franchise Agreement Between the

City of Alameda and Alameda County Industries AR, Inc. for

Solid Waste, Recyclable Materials and Organic Materials

Services (July 3, 2002)(“On the Commencement Date of this

Agreement, at a minimum, fifty percent (50%) of the Solid

Waste Collection vehicles and fifty percent (50%) of the

Recyclable Materials and Organic Materials Collection

vehicles used regularly on Collection routes by Contractor

shall be Clean Alternative Fuel Vehicles.”). For many States

and localities, finding these cost-effective fleet-based

reductions is an enormously beneficial attainment strategy

and—for some regions—a vital part-of their pathway towards

compliance with the Act’s requirements.

C. The SCAQMD Fleet Rulec Are Not A Pre-

empted “Standard” Under Section 209(a)

1. The Plain Language of the Clean Air Act

Shows that Congress Limited Preemption

to the Precise and Narrow Concept of

“Standards” Rather than to Any Action

Affecting Emissions

Within the context of state obligations to meet the national

public health air quality standards under the Act, Congress

assigned the duty to the federal government to set national

motor vehicle emissions standards, 42 U.S.C. § 7521, but it

also reserved for California the ability to develop such

standards and allowed other states to follow California’s lead.

42 U.S.C. § 7543. Congress was precise in the language that

it used to limit state actions in this regard. Except. for

vehicles regulated under the California scheme, the Clean Air

Act provides, “[nJo State or any political subdivision thereof

shall adopt or attempt to enforce any standard relating to the

control of emissions from new motor vehicles or new motor

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

(emphasis added). Section 209(b) allows California to

receive a waiver from EPA to issue standards to control

emissions from new motor vehicles provided that the

standards are at least as protective, in the aggregate, as the

Federal standards. 42 U.S.C. § 7543(b). Any State may then

adopt standards that are identical to California’s more

stringent standards controlling emissions, 42 U.S.C. § 7507.

When arrayed against the carefully crafted limitations on

fleet use adopted by South Coast, it is plain that the

preemption language of the statute itself is inapplicable. The

Fleet Rules only require public agencies, those contracting to

provide services on behalf of public agencies, or specific

types of licensed private fleets to select among certain lower-

emitting vehicles already certified as meeting emissions

standards by the California Air Resources Board (“CARB”).

See, e.g., JA 27.

Congress limited its preemption in Section 299 to the

narrow phiase “standard relating to the control of emissions.”

Despite the efforts of the petitioners and their amici to reach

the circumstances here by conflating anything resulting in the

control of emissions with the much more particular concept

of a “standard”, see Pet Br. 25; Alliance Br. 7, the text of the

Clean Air Act does not bear them out. Surely the Act would

not, for example, go so far as to prevent local transportation

agencies from choosing to purchase natural gas transit buses

themselves or from deciding upon purchasing smaller, less

expensive, and more fuel-efficient vehicles that happen to

have lower emissions as well.

The second sentence of Section 209(a) prohibits States

from creating conditions precedent to the initial retail sale,

tal

—

en PAPE ORG IIO mF

———

titling, or registration of a new motor vehicle. 42 U.S.C.

§ 7543(a). The Fleet Rules, however, only require fleet

Owners to purchase vehicles that are either (1) classified

under CARB’s regulations as “low emission” vehicles or (2)

operate on an alternative fuel. See, e.g., Rule 1191(e) JA

28). They are “expressly designed to work in tandem with

CARB’s certification process.” JA 219. Therefore, the Fleet

Rules do not prevent manufacturers from selling non-low

emission vehicles, nor do the Rules require that the manu-

facturer sell a specified percentage.* Rather they require a

special class of purchasers to buy vehicles that are already in

the market.”

Petitioners and amici concede that certain “in-use” motor

vehicle controls, such as carpool lanes and idling restrictions,

are not preempted under the Act. Pet. Br. 5; Alliance Br. 11.

But other controls adopted by States and local governments

are far more subtle, such as those that provide special clean

fuel licenses for use of carpool lanes by alternative fueled

vehicles, Va. Code. Ann. § 33.1-46.2 (Michie Supp. 2003), or

even the creation of tax incentives or subsidies to encourage

the purchase of this type of vehicle. Twenty-nine States have

adopted tax and other incentive programs that are designed to

create the preference for the purchase of alternative-fueled

* Each Fleet Rule also contains an exception that allows fleet operators

to purchase “higher emission” vehicles in the event that no certified

alternative fuel vehicle exists. See, e.g., Rule 1191(g) (JA 30).

* Nor do the Fleet Rules single out diesel-fueled vehicles because of

antipathy toward this particular technology. In passing these provisions,

SCAQMD’s Governing Board resolved that its staff should “continue to

evaluate all engine technologies including conventional diesel . . . and

make recommendations for the potential inclusion of these technologies”

in the Fleet Rules. SCAQMD Resolution No. 00-XX at 5. Staff are

required by this Resolution to return to the Governing Board with

proposed amendments in the event that conventionally fueled vehicle

engines achieve particular CARB-certified emissions and toxics reduc-

tions targets. /d. at 7.

vehicles, such as natural gas cars and trucks. See Clean

Cities Program, Department of Energy Compilation, at

http://www.ccities.doe.gov/vbg/progs/laws.cgi (last visited

Nov. 6, 2003). Incentives exist in various forms from coast to

coast. California has adopted the Carl Moyer Air Quality

Standards Attainment Program, which provides funds for the

purchase of vehicles that achieve a 30 percent reduction of

nitrogen oxide emissions compared to current emissions

standards. California Environmental Protection Agency, The

Carl Moyer Memorial Air Quality Standards Attainment

Program Guidelines (2003), available at http://www.arb.

ca.gov/msprog/moyer/2003moyerguide.pdf. Licenses given

by the City of Dallas permit alternative fuel taxicabs and

shuttles to be up to seven years old, whereas conventionally

fueled vehicles may only be up to five years old. Dallas City

Code § 44-7.2.1(a). - Washington, D.C. will only contract for

school bus transportation services with companies whose

fleets have more recent, and therefore lesser polluting,

models. Monahan, supra, at 17. Petitioners and their amici’s

suggestion that Section 209(a) creates a clear dividing line

between a federal sphere pertaining to any and all actions

affecting motor vehicles before their initial sale and a limited

state sphere of permissible regulation after sale makes no

sense in view of these kinds of state and local actions, which

are intended to have the effect of reducing emissions, but are

not themselves emission standards.

The Section 209 preemption provision is tethered to the

substantive content of the authorization for federal motor

vehicle emissions standard setting in Section 202. That entire

provision is written in terms of narrow numerical standards

for motor vehicles. 42 U.S.C. § 7521. Throughout Section

202, Congress uses “standards” to refer to quantitative limits,

see 42 U.S.C. § 7521(3)(A), and Section 202(g) requires that

regulations contain “standards which provide that such

emissions from a percentage of each manufacturer’s sales

volume of such vehicles” must not exceed specified levels.

42 U.S.C. § 7521(g).°

The text of the Act is plain that the preemption provision is

narrowly circumscribed. Congress clarified that, “[nJothing

in this part shall preclude or deny to any State or political

subdivision thereof the right otherwise to control, regulate, or

restrict the use, operation, or movement of registered or

licensed motor vehicles.” 42 U.S.C. § 7543(d)(emphasis

added). Nor did Congress limit this clarification to those

actions “not affecting emissions,” something it plainly could

have done. South Coast’s Fleet Rules fall within this

authorization to regulate use, operation, or movement. Since

the Fleet Rules are restrictions on use that apply to

commercial or public fleet operators and not directly to the

manufacturers, they fall within this protected area of state and

local authority.

This limiting construction of Section 209(a) is not changed

by Congress’ choice in that subsection of the phrase “relating

to” the control of emissions. As this Court stated in Egelhoff,

that while “relating to” indicates that the subject is broadly

construed, there is an outer limit—the term cannot be

construed to make “preemption turn on infinite connections.”

532 U.S. at 147. Similarly, Justice Scalia, joined by Justice

Ginsburg, recognized in a concurrence that the phrase is of

littke moment to preemption analysis because “everything is

* EPA has recently declined to regulate carbon dioxide motor vehicle

emissions under section 202, finding in part that it lacks statutory

authority to engage in such regulation. 68 Fed. Reg. 62,922 (2003).

Since federal authority to grant a motor vehicle emissions waiver to States

is premised upon the scope of that authority, and preemption is intended

to be “coextensive” with this waiver authority, MEMA, 627 F.2d at 1107,

preemption arguably would not apply were SCAQMD to have based its

regulation on addressing global warming concerns stemming from carbon

dioxide emissions.

related to everything else.” Dillingham Constr., N.A., Inc.,

519 U.S. at 336 (1997) (Scalia, J. concurring); accord N.Y.

State Conference of Blue Cross & Blue Shield Plans v.

Travelers Inc., 514 U.S. 645, 655-56 (1995). Here, it is plain

that Congress in its preemption language was addressing

narrow vehicle emissions controls rather than any strategy

employed by a State which might result in reduced motor

vehicle emissions overall.

Moreover, Congress consistently distinguished between

this narrow concept of “standards” and other types of

requirements, such as “accompanying enforcement proce-

dures,” throughout each of the provisions in Section 209. See

City of Chicago v. Environmental Defense Fund, 511 U.S.

328, 338 (1994) (citing Keene Corp. v. United States, 508

U.S. 200, 208 (1993)) (“It is generally presumed that

Congress acts intentionally and purposely when it includes

particular language in one section of a statute and omits it in

another.”); see also Bailey v. United States, 516 U.S. 137, 146

(1995)(“‘a legislature is presumed to have used no superfluous

words”). Sections 209(a), 209(b)(1)(C), and 209 (e)(2)(B)

each differentiate between the phrase “standards” and other

types of requirements. 42 U.S.C. §§ 7543(a), 7543(b)(1)(C),

and 7543(e)(2)(B). Congress must have intended for the

specific term “standard” to refer to a specific type of quanti-

tative requirement respecting emissions with a direct impact

on air quality, rather than to a broad, all encompassing term.

The Circuit Courts have consistently adopted this reading

of the Act, emphasizing the specificity of the terminology

employed by Congress. As the U.S. Court of Appeals for the

District of Columbia Circuit has explained:

[t}hese references [in subsection (a)] to efforts at

enforcement would have been unnecessary if Congress

intended that “standards” meant any regulation relat-

ing to motor vehicle emissions control. . . . Congress

intended the word “standards” to mean quantitative

levels of emissions rather than regulations involving

certification or in-use maintenance restrictions. ... . The

Senate Report 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.

MEMA, 627 F.2d 1107, 1112 (D.C. Cir. 1979) (citing S. Rep.

No. 90-403, at 32 (1967)); accord Motor Vehicle Mfrs. Ass'n

of US., Inc. v. DEC, 79 F.3d 1298, 1305-06 (2d Cir.

1996)(finding no identicality requirement to avoid pre-

emption for mechanisms employed to enforce state adopted

standards). See also EPA Opinion on Issues Raised by Am.

Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Protection, 163

F.3d 74 (Ist Cir. 1998) (Sept. 15, 1999) at n.11 (noting

narrow breadth of term “standard” in sections 209 and 177 in

contrast to enforcement language, while finding requirements

as to numbers of vehicles meeting certain quantitative

emissions levels are within the ambit of “standard” under

the Act).’

2. The Text and Structure of Other Clean Air

Act Provisions Support Affirming the

Lower Courts’ Opinions

Other provisions of the statute bear out the limited nature

of its preemption. Section 116, which retains state authority

other than as limited in Section 209, refers to a much broader

set of circumstances than just “standards relating to the

control of emissions.” It refers to “standards or limitations”

’ EPA's Opinion Letter finds that “production requirements” as to the

number of vehicles meeting a certain emissions level are within the scope

of “emissions standards” under sections 209 and 177 because, among

other reasons, an indication of market penetration is central to evaluating

feasibility and cost issues under Section 202. These issues are not

implicated by the Fleet Rules here, which merely require the selection

among already certified models.

as well as to “any requirement respecting control or

abatement of air pollution.” 42 U.S.C. § 7416 (emphasis

added). Congress is presumed to intend the use of such

starkly different language and could have been so expansive

had it intended the preemption provision to have such a broad

sweep. See City of Chicago, 511 U.S. at 338."

These careful distinctions are preserved throughout the

Act. Section 242, which sets forth certain requirements for

the clean fuel vehicle program, could not be clearer in

distinguishing between “standards”—referring to numerical

emissions from motor vehicle exhaust—and “other require-

ments.” Compare 42 U.S.C. § 7582(a) and 42 U.S.C.

§ 7582(b).

In its regulations setting forth the requirements to imple-

ment the Clean Fuel Fleet Program (“CFFP’’) provisions of

Section 246, 42 U.S.C. § 7586, EPA went to great pains to

distinguish between production requirements and fleet-based

incentives, similar to those at issue here. EPA explained:

[t]he legislative history of the 1990 amendments to the

[Clean Air Act] indicates that, in adopting the [Clean

Fuel Fleet Program], Congress made a clear choice

between two alternatives: requiring auto manufacturers

to produce and sell [Clean Fuel Vehicles], or creating

a market for [Clean Fuel Vehicles] and for clean

alternative fuels by requiring fleet operators to purchase

* Congress included in the Act a variety of other arguably relevant

provisions designed to increase the types of tools available for States

and industry to achieve cleaner air. See 42 U.S.C. § 751 la(c)(4)-(5)

(authorizing States to impose transportation control measures to reduce

motor vehicle emissions); 42 U.S.C. § 7586 (authorizing state limitations

on certain fleet operators as part of a Clean Fuel Fleet Program). The

Clean Fuel Fleet Program provisions of Section 246 are merely a pilot

designed to foster and test these approaches.

i ee

such vehicles and operate on such fuels.

chosje] the latter option .. . .

63 Fed. Reg. 20,103, 20,104 n.4, 20,105 (1998) (citing A

Legislative History of the Clean Air Act Amendments of 1990,

vol. | at 903). The United States, as amicus, confuses these

issues by attempting to read this history as a prohibition on

the Fleet Rules, rather than as a long-standing Congressional

acknowledgement of the appropriateness and limited purpose

of approaches of this nature.” U.S. Br. 20.

Petitioners incorrectly state that Section 246, the CFFP,

itself preserves Section 209%a)’s preemption of fleet pur-

chasing requirements. Pet Br. 42-43. Section 246, to be sure,

bears some similarity to SCAQMD’s actions by requiring

States to submit a State implementation plan (SIP) revision

establishing a clean-fuel vehicle program if the State is

classified as a “covered area” as defined in the section. 42

U.S.C. § 7586. However, Congress did not prohibit a State

from using a similar program, on its own initiative, to address

air quality problems, nor did it prohibit States from adopting

even more stringent provisions. Congress understood that

these provisions were not the exclusive realm for addressing

and promoting alternative fueled vehicles and that States

could choose to implement a similar program even when not

required to do so by Section 246." Moreover, Congress has

[Congress]

” To the extent that the views of the United States differ with these

arguments, the positions presented in its amicus brief are litigating

positions that have not met the prerequisites for deference to statutory

interpretation. See Geier v. American Honda Motor Co., Inc., 529 U.S.

861, 911 (2000) (Stevens, J., dissenting) (citing Christensen v. Harris

County, 529 U.S. 576, 587 (2000)).

'° A similar situation exists with regard to incentive programs. Section

249% f)(2) permits States to revise their SIP to provide incentives for the

sale or use of clean-fuel vehicles that are produced, sold, and distributed

in California. Many States already have incentive programs (financial

incentives to purchasers of clean-fuel vehicles, exemptions from high

occupancy vehicle requirements, and parking preferences) that Section

authorized other federal actions to secure fleet-based

pollution reductions. See, e.g., Energy Policy Act of 1992, 42

U.S.C. § 13201 et seq. (requiring fuel providers and state

governments to acquire a certain percentage of alternative

fueled vehicles and requiring the Department of Energy to

evaluate promulgating rules for private and municipal fleets

to acquire a certain percentage of alternative fueled vehicles).

Therefore, Section 246 signifies nothing more than Congress’

recognition that a clean-fuel fleet program is an effective tool

to improve air quality in an area."

3. Narrow Congressional Concern About a

“Third Car” Is Not Implicated by South

Coast’s Action

Congress’ limited purpose in preempting one aspect of

motor vehicle regulation should inform the Court's evaluation

of these provisions. The District Court below thoroughly

reviewed this history. Pet. App. 10a-13a. It shows that

Congress recognized that California had special air quality

needs justifying a new motor vehicle emissions program

249 lists as permissible. 42 U.S.C. § 7489(f)(3); pp. 14-15, supra. If Peti-

tioner and Amici’s analysis is adopted, such incentive programs used

by States independent of the Federal incentive programs would be

preempted.

'' The United States, as amicus, argues that Section 249, which

establishes the California pilot test program for light-duty trucks and

light-duty vehicles, signals that programs like the Fleet Rules are

preempted. U.S. Br. 27. However, the California pilot test program is a

narrow program that requires automobile manufacturers to produce and

sell a certain number of vehicles to the California public. 42 U.S.C.

§ 7589; see American Auto. Mfrs. Ass'n v. Cahill, 973 F. Supp. 288, 300

n.1l (N.D.N.Y. 1997). The provision does not speak to whether a

requirement that operators of light-duty and heavy-duty fleets purchase

certain low emission vehicles is preempted. Moreover, the Second Circuit_

has found the preemption reference to “standards” in Section 209 did not

extend to the separate authority for Clean Fleets plans. MVMA, 17 F.3d

at 532.

stricter than the federal program and that the State should be

afforded the broadest discretion possible in selecting the best

means to protect the health of its citizens. See H.R. Rep. No.

90-728 (1967).'* Additionally, Congress appreciated that

California-was a pioneer in setting emissions standards and

could continue to serve as a laboratory for further controls.

Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1079-80 (D.C. Cir.

1996); MEMA, 627 F.2d at 1110-11 (citing S. Rep. No. 90-

403, at 33 (1967)). Indeed, California has been involved in

these efforts since 1946 and first developed comprehensive

standards in 1957. MEMA, 627 F.2d at 1107, 1109 n.26.

California’s severe air quality challenges continue to this day,

with it consistently rated among the areas with the worst

ozone problems in the Nation. JA 80.

Congress sought only to avoid the potential confusion and

burden that would be created by the requirement that

manufacturers or drivers going into new States abide by

standards for a “third car” other than the California or federal

approaches. David P. Currie, Motor Vehicle Air Pollution:

State Authority and Federal Pre-Emption, 68 Mich. L. Rev.

1083, 1090-91 (1969-70). The scope of this preemption is

limited and was designed to protect against that one

purpose—to ensure auto manufacturers would not potentially

have to create 50 different classes of cars to meet each State’s

different emissions control standard. Congress wanted to

avoid placing an “undue burden on the automobile manu-

facturing industry.” MVMA, 17 F.3d at 527; see also Pet.

App. 26a; H.R. Rep. No. 90-728, at 21 (1967) (preemption is

“necessary in order to prevent a chaotic situation from

developing in interstate commerce in new motor vehicles”);

Jan Stevens, Air Pollution and the Federal System: Responses

to Felt Necessities, 22 Hastings L. J. 661, 674 (1970-71). At

'? See also Ashley Morris Bale, The Newest Frontier in Motor Vehicle

Emission Control: The Clean Fuel Vehicle, 15 Va. Envtl. L. J. 213, 224-

25 (1995-96).

the same time, Congress sought to strike a balance between

the need for a national standard, the unique situation in

California, and the needs of areas around the nation to come

into attainment with public health air quality standards.

EPA has long recognized—at least until the filing of the

United States’ brief here—Congress’ narrow purpose with

respect to preemption of engine regulation. In commenting

upon a parallel preemption provision for aircraft engines,

Section 233, 42 U.S.C. § 7573, EPA opined by letter that, if a

court reviewing a state regulation were to find “no necessary

impairment of the operator’s ability to operate and test the

engine, it [would] seem[] quite likely that [the court] would

find the state action not to contravene the Congressional

purpose of barring varying state and local regulations which

dictate how engines are designed, built and operated.”

People of State of California v. Dep't of the Navy, 624 F.2d

885, 888 (9th Cir. 1980), aff’ g 431 F. Supp. 1271, 1286-87

(N.D. Cal. 1977). The Ninth Circuit in Dep't of the Navy

affirmed a District Court finding that state regulations

affecting emissions from engine test cell housings had

“absolutely no effect upon the design, manufacture, and/or

operation of aircraft engines,” and therefore were not

preempted by the Clean Air Act. Dep't of the Navy, 431 F.

Supp. at 1287.

Similarly, the Fl et Rules do not run afoul of Con-

gressional intent by creating a third vehicle. Rather, they are

consistent with the deference Congress provided to California

to develop its own strategy for reducing its air pollution and

the tools reserved to the States more generally to tevelop

attainment strategies. This Court should be equally reluctant

to find that a particular strategy by California exceeds the

scope of the State’s authority. A measure should only be

=sS

found to be preempted if it clearly falls within the scope of

Congress's intent to preempt state authority.’ Rice, 331

U.S. at 230.

The effort by petitioners and their amici to preclude any

“attempt to ‘reduce harmful emissions from certain motor

vehicle fleets’” goes too far. Brief for The Chamber of

Commerce of the United States of America as Amicus at 12.

See also Pet. Br. 28 (“even when a state law lacks this express

reference to emission characteristics . . . , it may nonetheless

be preempted if it is linked in some other manner to control of

motor vehicle emissions .. . .”). Congress’ purpose was to

equip States with the tools to meet their air quality obligations

while affording predictability to manufacturers. Nowhere is

there evidence that Congress intended to completely

hamstring state efforts at addressing emissions. Congress

was very aware of the distinction it was creating between

“standards” and other practices such as use and maintenance

and its impact even on the unique problems of the Los

Angeles region. See Hearings on Automotive Air Pollution

before the Subcomm. On Air and Water Pollution of the

Senate Comm. on Public Works, 90th Cong., Ist Sess. 115

(1967) (statement of Sen. Baker) (“You don’t think the

doctrine of Federal preemption would prevent the State of

'’ Petitioners’ invocation of the “third car” prohibition, Pet. Br. 31, is

svmewhat mystifying, in view of the record below, which indicates that

three out of the four major engine manufacturers are already making

several different engine models that qualify for purchase under South

Coast's Fleet Rules. See JA 221-34. There are currently more than 50

commercially available makes and models of NGVs. See The Natural

Gas Vehicle Coalition, 2002 Natural Gas Vehicle Coalition Purchas-

ing Guide, available at http://www.atdc.doe.gov/pdfs/ngy_guide02.pdf.

While Amici American Road & Transportation Builders Ass'n et al.

identify a number of features of the Fleet Rules that prohibit so heavy a

reliance on diesel vehicles for fleets, Br. 24-25, none of these constitute a

preference or mandate for an otherwise non-certified vehicle.

California or Los Angeles County from making additional

restrictive regulations on the use or the maintenance of

vehicles?”).

4. The Act Permits Staite and Local Govern-

ments to Impose Reasonable Restrictions on

Commercial Fleet Activity as an Attainment

Strategy

The Clean Air Act's plain language, structure, and purpose

all support the retention of authority by SCAQMD to impose

reasonable requirements on commercial and municipal fleets

as vital parts of an attainment strategy for achieving public

health air standards. In a strikingly similar case, the Southern

District of New York evaluated emissions-related restrictions

on licensed taxi cabs imposed by the New York City Taxi and

Limousine Commission. That court explained that:

both the history and text of the Act show that the. . .

preemption section 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 locality

were left free to impose different standards for exhaust

emission control devices for the manufacture and sale of

new Cars.

Allway Taxi, Inc. v. City of New York, 340 F. Supp. 1120, 1124

(S.D.N.Y.), aff'd., 468 F.2d 624 (2d. Cir. 1972). That Court

further reasoned that the Clean Air Act does not “preclude a

locality from setting its own standards for the licensing of

vehicles for commercial use within that locality.” /d. The

“burden of compliance” with such standards is “on individual

owners and not on manufacturers and distributors.” /d.

This same analysis pertains to the Fleet Rules here. As the

District Court explained, “[t}he Fleet Rules accept as a given

the existing CARB vehicle standards; they merely require

fleet operators to choose from among the least polluting of

CARB-certified, available vehicles. The Rules impose no

new emission requirement on manufacturers whatsoever... .”

Pet. App. 21a.

The fleet rules adopted by the SCAQMD are not standards

relating to the control of emissions and therefore are a valid

exercise of the State’s police power.

CONCLUSION

For the foregoing reasons, the judgment below should be

affirmed.

Respectfully submitted,

GILBERT P. SPERLING GARY S. Guzy *

General Counsel FOLEY HOAG LLP

NATURAL GAS VEHICLE 1747 Pennsylvania Ave., N.W

COALITION Suite 1200 ‘Givi

400 North Capital Street, N.W. Washington, D.C. 20006

Washington, D.C. 20001 (202) 223-1200

(202) 824-7360

Counsel for Amici Curi

* Counsel of Record ee

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.