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

In The

Supreme Court of the Gnit

o

ENGINE MANUFACTURERS ASSOCIATION AND

WESTERN STATES PETROLEUM ASSOCIATION,

Petitioners,

V.

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT, et ai.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF AMICI CURIAE AMERICAN

ACADEMY OF PEDIATRICS (CALIFORNIA

DISTRICT); AMERICAN CANCER SOCIETY,

CALIFORNIA DIVISION, INC.; AMERICAN

LUNG ASSOCIATION; CALIFORNIA MEDICAL

ASSOCIATION; PHYSICIANS FOR SOCIAL

RESPONSIBILITY; SAN BERNADINO

COUNTY MEDICAL SOCIETY; SOCIETY FOR

OCCUPATIONAL AND ENVIRONMENTAL HEALTH;

AND UNION OF CONCERNED SCIENTISTS

IN SUPPORT OF RESPONDENTS

¢

PROF. DAVID M. DRIESEN

Counsel of Record

SYRACUSE UNIVERSITY

COLLEGE OF LAW

E.I. White Hall

Syracuse, NY 13244-1030

(315) 443-4218

November 17, 2003 :

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

OR CALL COLLECT (402) 342-2831

36 fe

QUESTION PRESENTED

Does the Clean Air Act preempt local requirements

that vehicle fleet owners, including local governments,

purchase available vehicles that comply with federally

authorized California emission standards?

ii

TABLE OF CONTENTS

QUESTION PRESENTED.....................0s0ssscsssssssssseees

TABLE OF AUTHORITIES ................ssssscecceeeeeeeeeeees

INTRODUCTION: AIR POLLUTION’S IMPACT

UPON PUBLIC HEALTH .................sscsccsssssssseseeees

I. Because Sales Restrictions are not “Stan-

dards Relating to” Emissions Control, Sec-

tion 209 Does Not Preempt Fleet Purchase

ee ee

II. Congress did Not Permit Implied Preemption ..

III. Local Government May Enact Fleet Pro-

curement Requirements, Since Congress Did

Not Clearly State that it Intends to Preempt

Such Requirements................ccssecscseseceeseeeceees

A. This Court Presumes that Congress does

not Intend to Preempt Local Authority to

Protect Public Health, Even When Con-

gress Only Relies Upon Federal Author-

ity to Achieve its Goals................c:sseeeeeees

B. Because Retention of Local Authority

Serves the Act’s Purpose of Protecting

Public Health, Preemption Requires a

Clear Statement ...cccccccssesccsssecseneenssenuunann

C. When Congress Relies Upon State and

Local Authority as the Primary Means of

Meeting a Federal Goal, Preemption Re-

quires a Clear Statement ........................

11

12

14

ili

TABLE OF CONTENTS -— Continued

Page

D. Congress May not Usurp Local Policy

Governing Procurement of Vehicles De-

livering Traditional Municipal Services

Without a Clear Statement ..................... 19

E. Congress Has not Clearly Stated that it

Intends to Preempt Local Fleet Purchase

ST cscsenenecsnespssnssenmesssssoccoerseers 21

IV. Congress Did not Protect Manufacturers

from the Influence of Economic Incentive

Programs, Like Fleet Purchase Programs...... 22

A. Congress Intended to Encourage Economic

Incentives Programs, Including Fleet Pur-

IIIT «cicsrsssnspsusesessssessecnsecssescsscees 22

B. Economic Incentive Programs Fall Outside

the Scope of Preemption under this

TTT snreprmnenpenepnesensneveseseceesees 24

COIS cccccccccccesccccccccccsccsccccccceccceccccccccccsccocoes 26

iv

TABLE OF AUTHORITIES

Page

CASES

Allied Stores v. Bowers, 358 U.S. 522 (1959) .................... 14

American Auto. Mfrs. Ass’n v. Mass. Dep’t Envtl.

Prot., 163 F.3d 74 (1st Cir. 1998) ..............cccccccceeseseeeeeees 10

Atascadero State Hospital v. Scanlon, 473 U.S. 234

GESTED exnsinsnenisinntntnstareenienenneninnimanitinmeinnenmamnensnisel 21

Atkin v. Kansas, 191 U.S. 207 (1903) ................:ccccccceeeeeees 20

Building and Constr. Trades Council of Metro. Dist.

v. Associated Builders and Contractors, 507 U.S.

SED GED cescsnsssuscssncsscenspensseeninimsienmenensenmannsosnanses 13, 19

California Div. of Labor Standards Enforcement v.

Dillingham, 519 U.S. 316 (1997)............ 11, 13, 15, 16, 25

Chevron v. Natural Resources Defense Council, 467

re Ee Cee rvcnmsnttentnummnenninienmmenpineimnees 15

Cipollone v. Ligett Group, Inc., 505 U.S. 504

FiTIpTaTEaEnscncnsnnegpenninocenmmensesnmnennesunenpnenennuansmansnantoaneis 10, 14, 15

City of Columbus v. Ours Garage and Wrecker

Service, 636 U.S. 434 (BOOB) .....ccccccccecsescccccseceseosscccssescees 22

Crosby v. National Foreign Trade Council, 530 U.S.

PaIIe aa icrercnenscunennansnaninnapanisiianiininteseniampebianianeemimemeinets 13

Egelhoff v. Egelhoff, 532 U.S. 141 (2001) ...............ccccceeeees 23

Geier v. American Honda Motor Co., 529 U S. 861

Gira nenntninnnsnseinvensenineiinimecmneieninenmuesmeperamnmiani 10, 11, 16

Gregory v. Ashcroft, 501 U.S. 452 (1991)..............cccecceeeees 20

Hines v. Davidowitz, 312 U.S. 52 (1941) .00........ecceeeccceeeees 15

Hohn v. United States, 524 U.S. 236 (1998) ...............0000 8

Hughes v. Alexandria Scrap, 426 U.S. 794 (1976)....... 19, 20

—— ia

Vv

TABLE OF AUTHORITIES — Continued

Page

Huron Portland Cement v. Detroit, 362 U.S. 440

TIE wssesennseiinanspenctatesonnenmnemesaeienmmimentenieumennineunnt 12-14

Medtronic v. Lohr, 518 U.S. 470 (1996)................... 5, 13, 16

Motor & Equipment Mfrs. Ass’n v. EPA, 627 F.2d

> Sere 23

New State Ice v. Liebman, 285 U.S. 262 (1932)................ 23

New York State Conference of Blue Cross & Blue

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

STII cnenpinnpastinersnstntnnimmnnenmunaiennieiimntinniuaaimepesenent passim

New York v. United States, 505 U.S. 144 (1992)......... 17, 18

Pennhurst State Sch. & Hosp. v. Halderman, 451

GEE, Up CITT ls soniecrsssnncindinereeneneatnepeanmemanensneniiindenemmiuentenennnest 18

Perkins v. Lukens Steel, 310 U.S. 113 (1940).................... 20

Pharmaceutical Research and Mfrs. of America v.

Walsh, 123 S. Ct. 1855 (20038)....................cccscsseceseceesesees 15

Printz v. United States, 521 U.S. 898 (1997)..................00 21

Raygor v. Regents University of Minn, 534 U.S.

| ener 6, 21

Shaw v. Delta Airlines, 463 U.S. 85 (1982).....................00 12

Smith v. Robbins, 528 U.S. 259 (2000) ..................cceeeeeeeee 23

South Dakota v. Dole, 483 U.S. 203 (1987) .................c0000 18

Train v. Natural Resources Defense Council, 421

ris StI TTTTTITosonscicsicetarienesietinieinnpiniaamaenenienenemeumniabennmennsens 14,17

TRW, Inc. v. Andrews, 534 U.S. 19 (2001) ................ccceeeeeee 7

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ....14, 15, 23

United States v. Locke, 529 U.S. 89 (2000) ..................0000 13

vi

TABLE OF AUTHORITIES -— Continued

Page

Whitman v. American Trucking Ass’ns, 531 U.S.

GER TED centusssnmnaetensteneninaneinnemansanenceemnnnemmnnnnnnennt 14

Will v. Michigan Dept. of State Police, 491 U.S. 58

GET cxcsstncnemesnsmmmenibbinenintgentennsemmenmenertnenemammmene 17

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

Ser Eee cociensencneteinttoeninemennsennenensmnenennnenmnteneieinnsemaneinne 21

STATUTORY PROVISIONS

ee Oe i ccnnenentnnseccsenssontenmanencsesmnmemmoummanmnansenl 24

Clean Air Act (CAA) § 101, 42 U.S.C. § 7401 ................ 5, 14

CAA § 108(f), 42 U.S.C. § T408(f)............ccseeeeeeeseeeeeeeees 9, 22

CAA § 110(a), 42 U.S.C. § 7410(8) ceeceoscssessececsssssesssesseeeeees 12

CAA § 116, 42 U.S.C. § 7416...............ccccccccesesseeceesenes 5, 9, 10

EN 14

ee Ses I OP Gi i rrnencnensnsicsenenetseninnmenptenesemnns 10

ee CEE: 1 PE cirncecsinseretnerensoremmmnensannmmannccsnnni 18

CAA § 182(b)(4), 42 U.S.C. § 751la(b)(4)........ ee eeeeeeeeeeeees 9

CAA § 182(c)(4), 42 U.S.C. § 75 1la(c(4) ........cceeeceeeseeeeees 25

CAA § 182(g)4)(A), 42 U.S.C. § 7511la(g)(4)(A)................. 22

CAA § 202(i(2), 42 U.S.C. § 75211 )(2) ..0......eeeeeeeeeeeereeeeeee 11

CAA § 202(1), 42 U.S.C. § 7521(1).........,.....csccccesserecensereeerees 11

CAA § 209(a), 42 U.S.C. § 7543(a) 2.0.0... eeceeeceereneeeeeeenes 6-8

CAA § 209(b), 42 U.S.C. § 75430)... eeeesceseeeeeeeeeeeeees 10

CAA § 209(d), 42 U.S.C. § 7543(d).........ccccsccsseeeeeeeeeeeees 9, 10

Vii

TABLE OF AUTHORITIES - Continued

Page

ee 9

Part A-Motor Vehicle Emission and Fuel Stan-

dards, CAA §§ 202-219, 42 U.S.C. §§ 7521-7554............ 9

FEDERAL REGISTER NOTICES

Approval and Promulgation of Implementation

Plans, Texas, Houston/Galveston Ozone Nonat-

tainment Area, 66 Fed. Reg. 35903 (2001) ...............000+ 12

Clean Fuel Fleet Program, 63 Fed. Reg. 20103

(EIT icreststorentenanienanntdnapeneienendmemeeiennentenieensennmmneNt 22

National Ambient Air Quality Standards for Par-

ticulate Matter: Final Rule, 62 Fed. Reg. 38651

EU nessasecsitonennactnnnsminsisinesnmimnentineieeeneN 3

LEGISLATIVE HISTORY

196 Cong. Rec. 4138 (1900)........cccccccccccrereceserecccscescsnesoos 24 -

196 Cong. Rec. 64638 (1900)........cccccccccccccsssesecscssssssesesseesees 23

H.R. Rep. No. 101-490 (1990) ...........cccccccossssscssessssssessesorenss 4

BEER, Beam. BER. GOTH CRBG GD acccncccccscsssesesscssccscssecsecesessevsssees 9

MISCELLANEOUS AUTHORITY

Abbey, David E. et al., Chronic Respiratory Symp-

toms Associated with Estimated Long-Term Am-

bient Concentrations of Fine Particulates Less

Than 2.5 Microns in Aerodynamic Diameter

(PM2.5) and Other Air Pollutants, 5 J. Exposure

Analysis & Envtl. Epidemiology 137 (1995)................++. 2

eee

TABLE OF AUTHORITIES -— Continued

Avol, Edward A. et al., Respiratory Effects of Relo-

cating to Areas of Differing Air Pollution Levels,

164 Am. J. Respir. Crit. Care Med. 2067 (2001)............. 4

California Air Resources Board and Office of

Environmental Health Hazard Assessment, Staff

Report: Public Hearing to Consider Amendments

to the Ambient Air Quality Standards for Par-

ticulate Matter and Sulfates (2002), at http://

www.arb.ca.gov/research/aaqs/std-rs/pm-final/pm-

CARB & OEHHA, Executive Summary for the

Proposed Identification of Diesel Exhaust as a

Toxic Air Contaminant (1998), at http://www.

oehha.ca.gov/air/toxic_contaminants/pdf1/diesel®

a Ee 2,3

Department of Health Services, Center For Health

Statistics, Death Records (2001), at http://www.

applications.dhs.ca.gov/vsq/screen_age_dtha.asp?

enty_cd=AA&YEAR_DATA=2001&Criteria=1&Res_

occ=Residence&Birth_Death=Death&stats=1&cod_

TE crnscnurhientetneinntecininsiicmsanaiiaieiitaiaidaiaiiaiitaabiuaiiiiiamiiaaninanaiins 3

Driesen, David M., The Economic Dynamics of

Environmental Law (20038) ............ccccccccseecsssseeeceseseeseeees 23

Fitz, Dennis R. et al., Characterizing the Range of

School Bus Exposures During Childrens’ Com-

mutes (2003), at http://www.arb.ca.gov/research/

SE OI cenesncensscssvercenesstsensseeeennenee 4, 20

Gardbaum, Stephen A., The Nature of Preemption,

79 Cornell L. Rev. 767 (1994) .0.........cccccceeseseceeeeeneeeeeeeeees 5

ix

TABLE OF AUTHORITIES — Continued

Gauderman, W. James et al., Association between

air pollution and lung function growth in South-

ern California children, 162 Am. J. Resp. Crit.

Care Med. 1383 (2000)..............ccccccccseeeseeererreeeeeeenes

McQuillin, Municipal Corporations (1999) ..............++

Peters, Annette et al., Increased Particulate Air

Pollution and the Triggering of Myocardial In-

farction, 103 Circulation 2810 (2001)..............ceeee

Plopper, Charles G. et al., Relationship of Inhaled

Ozone Concentration to Acute Tracheobronchial

Epithelial Injury, Site-specific Ozone Dose, and

Glutathione Depletion in Rhesus Monkeys, 19

Am. J. Respir. Cell Mol. Biol. 387 (1998).................

Pope III, C.A. et al., Lung Cancer, Cardio-

Pulmonary Mortality, and Long-Term Exposure

to Fine Particulate Air Pollution, 287 JAMA 1123

Ritz, Beate et al., Ambient Air Pollution and Risk of

Birth Dejects in Southern California, 1 Am. J.

Epidemiology 17 (2002)..............sssssssesseeseesereeneeeeeeees

Schwartz, Joel et al., The Concentration-Response

Relationship Between PM(2.5) and Daily Deaths,

110 Envtl. Health Persp. 1025 (2002)..................00+.

Starr, Kenneth et al., The Law of Preemption: A

Report of the Appellate Judges Conference Ameri-

can Bar Association (1991) ........ccccccccccccseeceseeseseeeeees

Page

1

INTEREST OF AMICI CURIAE

The American Academy of Pediatrics (California

District); American Cancer Society, California Division,

Inc.; American Lung Association; California Medical

Association; Physicians for Social Responsibility; San

Bernadino County Medical Society; Society for Occupa-

tional and Environmental Health; and Union of Concerned

Scientists submit this brief as amici curiae.’ Amici are

public health groups concerned about preserving local and

state authority to protect breathers from the serious

health hazards associated with air pollution.

+

INTRODUCTION: AIR POLLUTION’S

IMPACT UPON PUBLIC HEALTH

Amici’s member doctors and health professionals treat

numerous patients suffering from a wide variety of air

pollution related illnesses on a daily basis. Air pollution is

an especially serious public health hazard in the Los

Angeles area, and motor vehicle emissions constitute the

largest single source of air pollution both nationally and in

Los Angeles. J.A. 80. Vehicles emit air contaminants that

scientists associate with cancer, asthma attacks, chronic

bronchitis, hospitalization for lung and heart diseases,

worsening of emphysema and chronic obstructive pulmonary

* The parties to this case have filed a blanket consent to the filing

of amicus briefs with the Clerk of the Court. No party to this case has

authored any part of this brief or made any monetary contribution

toward its preparation and submission.

2

disease, low birth weights, premature birth, and prema-

ture death.’

A recent study of thirty toxic air pollutants estimates

the cancer risk from those few pollutants at 1,400 per

million people in the Los Angeles basin. J.A. 263. Vehicles

account for ninety percent of this risk and diesel particu-

late alone accounts for seventy percent of it. Id. Dozens of

studies relate diesel particulate to significant increases in

lung cancer.’

Vehicle emissions afflict breathers with many other

debilitating illnesses. Because they account for more than

half of all hydrocarbons, nitrogen oxides, and carbon

monoxide in the Los Angeles area, vehicle emissions have

thwarted efforts to achieve federal health-based air

quality standards for smog (ozone), soot (particulate), and

carbon monoxide in the Los Angeles basin, standards

adopted to protect the public from extremely widespread

* J.A. 254-255; California Air Resources Board (CARB) and Office

of Environmental Health Hazard Assessment (OEHHA), Staff Report:

Public Hearing to Consider Amendments to the Ambient Air Quality

Standards for Particulate Matter and Sulfates, 7-48; 7-75-77 (2002), at

http//www.arb.ca.gov/research/aaqs/std-rs/pm-final/pm-final htm; Beate Ritz

et al., Ambient Air Pollution and Risk of Birth Defects in Southern

California, 1 Am. J. Epidemiology 17 (2002); David E. Abbey et al.,

Chronic Respiratory Symptoms Associated with Estimated Long-Term

Ambient Concentrations of Fine Particulates Less Than 2.5 Microns in

Aerodynamic Diameter (PM2.5) and Other Air Pollutants, 5 J. Exposure

Analysis & Envtl. Epidemiology 137 (1995).

* CARB & OEHHA, Executive Summary for the Proposed Identifi-

cation of Diesel Exhaust as a Toxic Air Contaminant ES-20 (1998), at

http//www.oehha.ca.govw/air/toxic_contaminants/pdf1/diesel%20exhaust.

pdf.

3

air pollution related disease. J.A. 80, 141.‘ Nationally,

scientists associate particulate with tens of thousands of

annual deaths and risks of both heart attacks and lung

cancer. The California Air Resources Board (CARB)

estimate of the number of annual particulate deaths in

California exceeds the number of people that die annually

in California automobile accidents. CARB also estimates

that air pollution causes hundreds of thousands of annual

asthma attacks in California, two thovsand of which

require emergency room visits, usually because the victim

has difficulty breathing.’ Carbon monoxide hinders the

transportation of oxygen to human tissue and therefore

* Volatile organic compound and nitrogen oxides emissions from

vehicles produce both ozone and particulate. National Ambient Air

Quality Standards for Particulate Matter: Final Rule, 62 Fed. Reg.

38651, 38652 (1997); J.A. 244, 251. Most hydrocarbons include many

volatile organic compounds and some other compounds. See J.A. 244

(discussing VOCs and “other hydrocarbon materials”).

* See Joel Schwartz et al., The Concentration-Response Relationship

Between PM(2.5) and Daily Deaths, 110 Envtl. Health Persp. 1025, 1028

(2002); C.A. Pope III et al., Lung Cancer, Cardio-Pulmonary Mortality,

and Long-Term Exposure to Fine Particulate Air Pollution, 287 JAMA

1123 (2002); Annette Peters et al., Increased Particulate Air Pollution

and the Triggering of Myocardial Infarction, 103 Circulation 2810

(2001). More than 98% of the particles emitted from diesel engines are

in the fine particle range of ten microns or less, and 92% are less than

one micro. in diameter. CARB & OEHHA, Executive Summary, supra at

penetrate deep into the lungs.

* CARB & OEHHA, Staff Report, supra at 1-3 (particulate kills

6,500 persons per year); Department of Health Services, Center For

Health Statistics, Death Records (2001), at http://www.applications.dhs.

ca.gov/vsq/screen_age_dtha.asp?cnty_cd=AA&YEAR_DATA=2001&Criteria

=1&Res_occ=Residence&Birth_Death=Death&stats=1&cod_cd=385 (3,971

traffic deaths).

” CARB & OEHHA, Staff Report, supra at 9-22.

4

can cause fetal brain damage and pose grave risks for

those with heart disease. H.R. Rep. No. 101-490, 148-149,

reprinted in Senate Committee on Energy and Commerce,

A Legislative History of the Clean Air Act Amendments of

1990, at 3172-73 (1993) (1990 Leg. Hist.).

Los Angeles has the worst air quality in the country,

primarily because of the vehicle pollution that the rules at

issue in this case target. J.A. 245. This air quality poses

especially grave risks for children. Air pollution seriously

damages children’s lungs, impeding normal lung growth,

aging young lungs prematurely, and decreasing lung

function.’ A recent study explains that children riding

school buses face especially great exposure to pollution

from diesel buses and other vehicles. See Dennis R. Fitz et

al., Characterizing the Range of School Bus Exposures

During Childrens’ Commutes 1 (2003), at http://www.arb.

ca.gov/research/schoolbus/report.pdf. And children’s narrow

airways and less developed lungs leave them more

susceptible to asthma attacks and other air pollution related

afflictions than the general population anyway. See generally

id. at 1. Air pollution also has especially severe effects upon

elderly people with pre-existing heart or lung disease.’

* Edward L. Avol et al.,, Respiratory Effects of Relocating to Areas

of Differing Air Pollution Levels, 164 Am. J. Respir. Crit. Care Med.

2067, 2069 (2001); W. James Gauderman et al., Association between air

pollution and lung function growth in Southern California children, 162

Am. J. Resp. Crit. Care Med. 1383 (2000); Charles G. Plopper et al.,

Relationship of Inhaled Ozone Concentration to Acute Tracheobronchial

Epithelial Injury, Site-specific Ozone Dose, and Glutathione Depletion in

Rhesus Monkeys, 19 Am. J. Respir. Cell Mol. Biol. 387, 396-99 (1998).

* CARB & OEHHA, Staff Report, supra at 7-55.

5

The South Coast Air Quality Management District

(SCAQMD) developed its fleet purchase requirements

precisely because they were needed to “meet ... federal

ambient air quality standards” and address the public

health disaster associated with diesel particulate and

other vehicular emissions. J.A. 80, 141, 151. Congress

passed the Clean Air Act (Act) to encourage local efforts to

protect public health in this manner. Since the Act does

not expressly preempt the use of local procurement

authority as an economic incentive for clean air, this Court

should uphold this effort to address grave and widespread

health problems.

¢

SUMMARY OF ARGUMENT

The very purposes of the Act are to protect public

health and to encourage local action toward that end. See

42 U.S.C. § 7401. The Supremacy Clause prohibits state

regulation conflicting with federal law, but does not thwart

local initiatives that the national governmen: demands to

achieve federal objectives. See Medtronic v. Lohr, 518 U.S.

470, 485-86 (1996) (the purpose of Congress is the ultimate

touchstone in preemption cases). See generally Stephen A.

Gardbaum, The Nature of Preemption, 79 Cornell L. Rev.

767, 770-71 (1994) (arguing that preemption properly

deals only with direct conflicts between federal and state

law).

Consistent with these purposes, Congress established

a rule broadly preserving state and local authority to

protect public health through both “standard[s]” and

“requirement(s].” 42 U.S.C. § 7416. This case concerns the

scope of an exception to this general rule. That exception

6

preempts “standard[s] relating to” control of new

vehicle emissions. See 42 U.S.C. § 7543(a). The petitioning

Manufacturers argue that fleet purchase requirements

constitute standards relating to emissions control, because

sales restrictions constitute standards relating to emissions

control under the first sentence of section 209(a). Pet. Br. at

25. But that vehicle standards provision does not even reach

emissions related sales restrictions. Construing the vehicle

standards provision to reach sales restrictions would

render the second sentence of section 209(a), which

specifically preempts sales restrictions, superfluous. See

42 U.S.C. § 7543(a). Because sales restrictions are not

“standards relating to” emissions control, neither are fleet

purchase requirements.

Since Congress has not clearly stated that it intends

to preempt local authority to impose fleet purchase

requirements, the Court should preserve that authority.

See Raygor v. Regents University of Minn., 534 U.S. 533,

543 (2002). Absent an unmistakably clear statement

showing that Congress has confronted the issue, the Court

should assume that Congress does not intend to couple a

demand for clean air with broad denial of the authority

needed to actually protect the public from air pollution.

Congress also may not alter the usual state/federal balance

by preempting state and local regulation governing the

procurement of vehicles delivering traditional municipal

services, like garbage collection and public transportation,

through vague general language.

Moreover, Congress did not intend to insulate

manufacturers from increased demand for vehicles less

damaging to peoples’ health. Indeed, it clearly encouraged

economic incentives addressing vehicle emissions. This

Court has held that programs only influencing the

7

economic incentives facing beneficiaries of preemption do

not “relate to” employee benefit plans. See, e.g., New York

State Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins., 514 U.S. 645, 658-59 (1995) (unanimous

opinion). Because the Clean Air Act specifically encourages ~

economic incentive programs, this precedent shows that

fleet purchase rules, which likewise simply change the

economic incentives facing preemption beneficiaries, do

not constitute standards relating to the control of new

vehicle emissions. The Act’s plain language, purpose, and

structure support retention of local procurement authority

as a source of economic incentives.

¢

ARGUMENT

I. Because Sales Restrictions are Not “Standards

Relating to” Emissions Control, Section 209 Does

Not Preempt Fleet Purchase Requirements.

It is a “cardinal rule of construction” that courts

interpret statutes as a whole, harmonizing their provisions

so that no word or provision becomes superfluous. See TRW,

Inc. v. Andrews, 534 U.S. 19, 31 (2001). In this case, simply

harmonizing the two sentences of section 209(a) shows that

the Act does not preempt fleet purchase requirements.

Congress partially preempted only direct regulation of

new vehicle emissions control and one form of indirect

regulation. The first sentence of section 209(a) prohibits

direct regulation of the manufacturing process, while the

second sentence prohibits indirect regulation through a

sales restriction. See 42 U.S.C. § 7543(a). Absent the

second sentence, states might refuse to title a vehicle

unless the state approved its emissions control system. See

8

id. The second sentence, not the first, prohibits states from

making a “certification ... relating to” new vehicle

emissions control a “condition precedent to the ... sale,

titling or registration” of a vehicle. Id.

Section 209(a)’s specific express preemption of sales

restrictions bars an inference that fleet purchase

requirements are preempted. The exceedingly specific

language of the second sentence simply does not mention

purchase requirements. See id. Section 209(a)’s second

sentence expressly preempts certain sales restrictions, not

purchase requirements.

Nor do fleet purchase requirements constitute

“standards relating” to new vehicle emissions control under

section 209(a)’s first sentence. See id. The petitioning

Manufacturers argue that fleet purchase requirements

constitute “standards relating to” emissions control,

because purchase is the flip side of sales (no purchase, no

sale). Pet. Br. at 25. But sales restrictions do not constitute

“standards relating” to emissions control under section

209(a)’s first sentence. If section 209’s first sentence reached

sales restrictions that indirectly cause manufacturers to

reduce emissions, there would be no need for the second

sentence. Cf. Hohn v. United States, 524 U.S. 236, 249

(1998) (disfavoring construction of one provision that

renders another superfluous). Congress added the second

sentence, precisely because the first sentence only reached

direct regulation.

Because sales restrictions are not “standards relating

to” emissions control under section 209’s first sentence,

neither are fleet purchase requirements. Section 209(a)

provides no literal support for the Manufacturers’ argument,

because the very specific second sentence, which prohibits

9

sales restrictions, does not reach purchase requirements,

and the first sentence’s potentially ambiguous language

must be read to apply only to direct regulation of

emissions control in order to avoid making the second

sentence superfluous.

II. Congress Did Not Permit Implied Preemption.

Manufacturers’ argument has no literal basis. Rather,

it involves a plea to imply preemption of purchase

requirements in the face of a statutory provision retaining

state authority, except in the case of “certain” rules

expressly preempted in section 209(a). See 42 U.S.C.

§ 7416.

Section 209(d) shows that Congress did not intend to

reach all programs addressing vehicle emissions, because

it preserves state authority to enact vehicle inspection and

maintenance programs and restrict driving in order to

reduce emissions. 42 U.S.C. § 7543(d). See also 42 U.S.C.

§§ 7408(f), 751la(b\4), 7544. Congress added this provision

as part of a general effort to resolve uncertainty about the

scope of state authority to regulate vehicle pollution to

avoid litigation. H.R. Rep. No. 90-728, at 21, reprinted in

1967 U.S.C.C.A.N. 1938, 1956. Section 209(d) states that

“nothing in this part” preempts state regulation of licensed

vehicles. Id. (emphasis added). The term “this part” refers

part A of subchapter two of the Act, which addresses

“motor vehicle emission and fuel standards.” See 42 U.S.C.

§§ 7521-7554. This language shows that federal fuel and

vehicle regulation should not give rise to field preemption

or any other form of implied preemption.

Congress affirmed this decision not to risk the

uncertainty of implied preemption by expressly preserving

10

state authority in section 116. See 42 U.S.C. § 7416;

Kenneth Starr et al., The Law of Preemption: A Report of the

Appellate Judges Conference American Bar Association, 54-

55 & n. 241 (1991) (citing-section 116 as an example of

detailed lawmaking that makes implied preemption

inappropriate). Cf. Cipollone v. Ligett Group, Inc., 505 U.S.

504, 517 (1992) (matters beyond the reach of expression

preemption clause are not preempted); Geier v. American

Honda Motor Co., 529 U.S. 861, 874-75 (2000) (implying

preemption of tort suits conflicting with statutory goal of

advancing safety). In keeping with the Act’s health

protective purpose, section 116 broadly preserves state

authority to enact “any” requirements or standards more

stringent than federal rules, while broadly preempting any

authority to adopt less stringent law. 42 U.S.C. § 7416. Thus,

Congress preserved authority to impose fleet purchase

requirements.

Section 209(d) does not indicate that Congress

believed that section 209(a) had a broad enough reach to

preempt state authority to regulate titled vehicles. When

Congress thought that section 209 preemption reached

authority it wanted to preserve, it expressly exempted that

authority from preemption under section 209 with a

specific reference to that section. See, e.g., 42 U.S.C.

§§ 7543(b), 7507 (allowing the nation’s strictest regulator,

California, to regulate vehicle emissions and other states to

copy strict California standards notwithstanding preemption

under section 209(a)). See also American Auto. Mfrs. Ass’n

v. Mass. Dep’t Envtl. Prot., 163 F.3d 74, 78 (1st Cir. 1998)

(EPA granted a waiver in 1993 for California standards

requiring that 2% of vehicles be zero emission vehicles).

The absence of this specific reference in section 209(d)

confirms the narrowness of section 209(a) preemption. In

11

keeping with the Act’s overall purpose, the statute strictly

limits any exceptions to the general rule preserving state

authority to enact programs protecting public health. Cf.

Geier, 529 U.S. at 867-68 (reading a preemption clause

narrowly to harmonize it with a saving clause).

III. Local Government May Enact Fleet Procurement

Requirements, Since Congress Did Not Clearly

State that it Intends to Preempt Such Require-

ments.

Even if the Act’s plain language did not settle this

case in SCAQMD’s favor, the strong presumption against

preemption appropriate here requires retention of local

authority. This presumption would resolve any ambiguity

in section 209, including any ambiguity about the meaning of

the term “standards,” and the phrase “standards relating

to” emissions control. This Court’s recent preemption

jurisprudence recognizes that the words “relate to” cannot

resolve preemption issues in isolation, since “everything is

related to everything else.” California Div. of Labor

Standards Enforcement v. Dillingham, 519 U.S. 316, 335

(1997) (Scalia, J., concurring) (citations omitted). Accord

Travelers, 514 U.S. at 655 (unanimous opinion). That

observation applies fully to the Clean Air Act. Indeed,

under the Act, one could argue that even regulation of

factory emissions is “related to” new vehicle emissions,

since less reductions from factories implies a greater need

for more vehicle emission reductions to meet the Act’s

health protective goals. See, e.g., 42 U.S.C. §§ 7521(i)(2)

(requiring EPA consideration of the need for more

reductions in establishing “tier two” vehicle standards);

7521(1) (requiring vehicle toxics regulation if needed). And

all state demonstrations that their air pollution control

12

programs provide for attainment of ambient air quality

standards, which the Act requires, must refer to federal or

California vehicle emission standards in order to project

emission reduction budgets. See 42 U.S.C. § 7410(a). See,

e.g., Approval and Promulgation of Implementation Plans,

Texas, Houston/Galveston Ozone Nonattainment Area, 66

Fed. Reg. 35903, 35904 (2001) (describing a reference to

the federal vehicle emissions control program in a state

implementation plan). So, consistency with Congressional

intent with respect to the Clean Air Act requires a

narrower approach than that sometimes employed in cases

interpreting the Employee Retirement Income Security

Act of 1974 (ERISA). Cf. Shaw v. Delta Airlines, 463 U.S.

85, 97 (1982) (explicit reference to an ERISA plan justifies

preemptién, “unless there is good reason to believe that

Congress intended” otherwise) (emphasis added). Because

preemption in this case would frustrate achievement of

the Act’s health protection goal, deny local government

authority needed to meet federal demands, and impinge on

local authority to establish procurement policies for

vehicles delivering traditional municipal services, pre-

emption requires a clear statement expressly limiting fleet

purchase requirements. The Act contains no such

statement.

A. This Court Presumes that Congress Does Not

Intend to Preempt Local Authority to Protect

Public Health, Even When Congress Only

Relies Upon Federal Authority to Achieve

its Goals.

The mere fact that control of air pollution clearly lies

within the police power of the state suffices to trigger a

presumption against preemption. See Huron Portland

13

Cement v. Detroit, 362 U.S. 440, 442 (1960) (local air

pollution ordinance involves exercise of the “most

traditional concept of... the police power”); Building and

Constr. Trades Council of Metro. Dist. v. Associated

Buiiders and Contractors, 507 U.S. 218, 224 (1993)

(applying the presumption against preemption to the

relatively new field of labor law). The Court declines to

invoke this presumption only in areas that have a very

long history of Congressional legislation and usually some

constitutional doubt about the legitimacy of state

regulation. See, e.g., Crosby v. National Foreign Trade

Council, 530 U.S. 363, 375-76 (2000) (President’s foreign

affairs power “controls the issue” of whether a federal

statute preempts state sanctions imposed upon Burma);

United States v. Locke, 529 U.S. 89, 108 (2000) (declining to

apply presumption against preemption, because Congress

has regulated maritime affairs from the “beginning of the

Republic” and doubt exists about the validity of concurrent

state power in this area). Neither factor is present here.

This presumption informs interpretation of express

preemption provisions, just as it informs implied preemption.

Medtronic, 518 U.S. at 485. And the presumption forbids

preemption “unless that was the clear and manifest

purpose of Congress.” Travelers, 514 U.S. at 655 (provision

preempting law that relates to an employee benefit plan

construed narrowly to avoid reading the “clear and

manifest” intent rule out of the law); Dillingham, 519 U.S.

at 325.

14

B. Because Retention of Local Authority Serves

the Act’s Purpose of Protecting Public Health,

Preemption Requires a Clear Statement.

Section 101(b) of the Act explicitly establishes its

purposes. The elected government declared a single

overarching purpose, to preserve and “enhance” air quality

in order to protect public health and welfare. See 42 U.S.C.

§ 7401(b)(1); Union Electric v. EPA, 427 U.S. 246, 266

(1976) (prompt attainment of air quality standards is the

Act’s “primary purpose”). It then explicitly set out

additional purposes that serve this larger purpose, most

importantly, encouragement of “regional air pollution

prevention and control programs” like those of the

SCAQMD. 42 U.S.C. § 7401(b)(4); Huron, 362 U.S. at 445

(citing Congressional policy, established in the 1955 Clean

Air Act, of protecting local government rights to control air

pollution). See also 42 U.S.C. § 7504 (requiring state

decisions about which functions local officials will perform).

The purposes set out in section 101(b) constitute the

sole purposes of the Act. See Allied Stores v. Bowers, 358

U.S. 522, 530 (1959) (when a statute expressly declares its

purpose there is “no room to conceive of any other purpose

..."); Cipollone, 505 U.S. at 514 (deriving the Federal

Cigarette Labeling and Advertising Act’s purpose from

explicit statutory statements of purpose). Congress pursued

‘ts health protection goal with rare single-mindedness. See

Whitman v. American Trucking Ass’ns, 531 U.S. 457, 471

(2001) (EPA may not consider cost in setting national

ambient air quality standards); Union Electric, 427 U.S. at

256 (EPA may not consider cost and feasability in deciding

whether to approve state implementation plans); Train v.

Natural Resources Defense Council, 421 U.S. 60, 64 (1975)

(Congress decided to “take a stick to the states” to get

——St— tO

15

them to achieve clean air). It only took into account

considerations competing with the statutory health

protection goal in ways that would not interfere

substantially with that goal. See, e.g., Union Electric, 427

U.S. at 266 (states may consider cost and feasability when

such consideration does not interfere with attainment of

air quality standards). Cf. Chevron v. Natural Resources

Defense Council, 467 U.S. 837, 851 (1984) (describing

economic considerations as a purpose of one of the Act’s

sections, but not of the Act as a whole).

When local authority aids achievement of federal

objectives, the Court should preserve local authority

absent a clear statement precluding its exercise. The

Court invokes a presumption against preemption even

where some tension exists between state law and federal

goals. When local authority stands as an aid, not an

obstacle, to the accomplishment of federal purposes,

normal preemption principles make the presumption

especially powerful. See Pharmaceutical Research and

Mfrs. of America v. Walsh, 123 S. Ct. 1855, 1869 (2003)

(presumption against preemption has “special force” when

the two government pursue common purposes). Cf. Hines

v. Davidowitz, 312 U.S. 52, 67 (1941) (preemption

appropriate when state law stands as an obstacle to

achievement of federal purposes).

In interpreting a clause preempting law “related to”

employee benefit plans, this Court has recognized that

statutory purpose guides determination of preemption’s

scope. See Dillingham, 519 U.S. at 325 (1997); Travelers,

514 U.S. at 656. Purpose is always the “ultimate

touchstone” of preemption analysis. See Cipollone, 505

U.S. at 516. But the potential expansiveness of the phrase

“related to” in isolation leaves a court rudderless unless it

16

tethers its interpretation to the statute’s stated

overarching purpose. See Dillingham, 519 U.S. at 325

(objectives of the statute become guide to the scope of

preemption because “uncritical literalism” offers “scant

utility” in discerning intent behind a provision preempting

law that relates to employee benefit plans); Travelers, 514

U.S. at 656 (we must look into the objectives of the statute,

because the text is unhelpful).

The principle that courts should, if fairly possible,

construe a statute to serve its purpose supports retention

of authority to regulate local fleet procurement. See

Medtronic, 518 U.S. at 490-91 (declining to read an

ambiguous preemption clause as undercutting the

statutory purpose of protecting public health). Because

attainment of air quality standards is impossible in many

jurisdictions without significant state and local efforts to

address vehicle emissions, the Court should interpret

section 209(a) narrowly. Because the SCAQMD’s fleet

program serves the Act’s goal of protecting public health,

only a specific statement can make Congressional intent to

preempt the program “clear and manifest.” Cf Geier, 529

U.S. at 874-75 (implying preemption of tort suits conflicting

with the statutory goal of advancing safety).

C. When Congress Relies Upon State and Local

Authority as the Primary Means of Meeting a

Federal Goal, Preemption Requires a Clear

Statement.

This Court should not assume that Congress broadly

preempted local authority to comply with a cooperative

federalism scheme absent a clear statement showing that

Congress intends such an incongruous result. It is

extremely unlikely that Congress would vest states with

~

17

the primary responsibility to meet air quality standards,

Train, 421 U.S. at 64 (1975), while simultaneously depriving

them of the authority needed to achieve these vital goals.

See Travelers, 514 U.S. at 667 (rejecting broad

interpretation of preemption that would leave States

“without ... authority to do just what Congress was

expressly trying to induce them to do”). Strict application

of the clear statement requirement assures that Congress

has faced the issue of demanding state compliance with

the federal health protection goal, while denying states the

necessary tools. See Will v. Michigan Dept. of State Police,

491 U.S. 58, 65 (1989) (clear statement rule assures that

Congress faces critical issues “affecting the federal

balance”) (citation omitted).

Preemption of local authority to meet federal goals

through vague “relating to” language undermines democratic

accountability. Concern about democratic accountability

underlay this Court’s holding in New York v. United States

that Congress may not commandeer state enforcement of

federal regulation. 505 U.S. 144, 161 (1992). If the federal

government directs state officials to regulate, “state officials

... bear the brunt of public disapproval” of regulation, even

though federal officials deserve the blame. Jd. at 169. Thus,

public health groups concerned about federally coerced

local hazardous waste siting would blame local officials,

rather than the federal officials really responsible. See id.

at 149, 169.

This political accountability concern even more

strongly disfavors reading a vague preemption clause as

broadly limiting local authority under a statute that

requires that authority's exercise to meet federal goals.

This denial of authority effectively coerces state officials

into not acting, while forcing them to take the blame for

18

not meeting popular goals that the federal government has

encouraged them to meet. This commandeering of inaction

under a cooperative federalism statute diminishes political

accountability more thoroughly than openly requiring local

regulatory action does. For this commandeering of inaction

not only shifts the blame for failures to disempowered local

officials, but also allows Congressional representatives to

take undeserved credit for demanding that local government

meet popular environmental goals. Cf. Starr, supra at 48

(judges preempting state law without “explicit Congressional

guidance ... assume a legislative role without accepting

legislative responsibility.”). Unless the Court requires

Congress to make preemption decisions in “full view of the

public”, New York, 505 U.S. at 168, i.e. through a clear

statement, preemption of authority under a cooperative

federalism statute diminishes local and _ federal

accountability.

A clear statement requirement also allows states to

“knowingly” decide whether to meet the conditions the

federal government has set in the Act for earning federal

highway funds. Cf. South Dakota v. Dole, 483 U.S. 203,

207 (1987). In order to encourage states to protect public

health, the Act requires a cutoff of highway funds if states

fail to enact regulatory programs sufficient to meet

national ambient air quality standards. See 42 U.S.C.

§ 7509. If the states (and their subdivisions) have doubts

about the scope of their regulatory authority, they cannot

know what programs they may rely upon to avoid the

cutoff. Thus, the policy behind the rule that conditions on

the receipt of federal funds must be unambiguous also

supports the clear statement requirement in the context of

cooperative federalism. See Pennhurst State Sch. & Hosp.

v. Halderman, 451 U.S. 1, 24 (1981).

ttl tlt i

19

D. Congress May Not Usurp Local Policy

Governing Procurement of Vehicles

Delivering Traditional Municipal Services

Without a Clear Statement.

Amici believe that their tax dollars should not fund

purchases of relatively dirty vehicles further endangering

their patients’ health, when cleaner vehicles are available.

Most of the rules at issue here apply to governmental and

privately owned fleets used to deliver traditional municipal

services, such as bus service and garbage collection. See J.A.

46, 52, 66, 80; McQuillin, Municipal Corporations §§ 29.32,

text accompanying nn. 41 & 45 (1999) Cf. Associated

Builders, 507 U.S. at 220 (describing government agency

charged by legislature with supplying water, sewage

collection, and waste treatment). The interpretation of law

that Manufacturers and the Solicitor General seek

preempts voluntary local decisions to purchase clean

vehicles, since the elected local officials who are the local

government instruct unelected bureaucrats to follow the

voluntary decisions of the elected government through

enactment of laws.

To deliver services, local governments must use their

traditional procurement authority to obtain needed vehicles

or contract for services from vehicle fleet owners. See

generally McQuillin, supra § 28.01. Cf. Associated Builders,

507 U.S. at 221 (regional agency contracts with private firm

for public purpose of cleaning up Boston harbor); Hughes

v. Alexandria Scrap, 426 U.S. 794, 796-97 (1976) (state

licensed wreckers to scrap vehicles to address problem of

insufficient recycling of junked cars). Local and state

governments usually provide a legal framework for

purchases of vehicles to make sure that the purchased

vehicles are safe and fit for their public purposes. See, e.g.,

McQuillin, supra §§ 24.682, 24.698, 24.709, 29.28-.29,

20

29.52 (competitive bidding and duties of bus franchisees to

use safe equipment). Cf. Atkin v. Kansas, 191 U.S. 207

(1903) (upholding state labor law applicable to private

contractors building streets under a contract with a

municipality). In Los Angeles, the emissions from the

vehicles make them unsafe and therefore unfit. See, e.g.,

Fitz, School Bus Study, supra. Cf. Hughes, 426 U.S. at 809-

810 (state acts as a market participant when it offers a

bounty to get local licensed processors to scrap cars as an

environmental measure). The fleet purchase rules limit

municipal use of taxpayer money to increase health

hazards. ,

A federal usurpation of traditional government

procurement authority, including the right to enact laws

establishing the policies governing procurement (like the

fleet purchase requirements), would alter the normal

balance between federal and local law. Cf. Perkins uv.

Lukens Steel, 310 U.S. 113, 127-29, 132 (1940) (business

has no standing to challenge a federal prevailing wage law,

because government enjoys “unrestricted power” to

establish its own procurement policy). The federal

government can only usurp state and local authority to

regulate procurement of vehicles performing traditional

municipal functions through an “unmistakably clear”

statement that shows that it has faced the relevant issue.

See Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991).

The Gregory Court relied upon the rule that preemption

requires “clear and manifest” Congressional intent to

preempt state law to justify its extension of the clear

statement requirement beyond the realm of sovereign

immunity waivers. Id. at 461 (citing Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)). When Congress

intends to preempt historic state powers or legislate to

21

“affect the federal balance” in “traditionally sensitive”

areas of local power, it must make its intention

“unmistakably clear in the language of the statute.”

Raygor, 534 U.S. at 543 (citations omitted). See also Starr,

supra at 40-56 (explaining why the clear statement

approach to preemption is appropriate). Absent a clear

statement, the Court should assume that Congress does

not intend to undermine mandatory local protection of

public health by preempting fleet purchase requirements.

E. Congress Has Not Clearly Stated that it

Intends to Preempt Local Fleet Purchase

Requirements.

While section 209(a) clearly reaches vehicle emission

standards and certain sales restrictions, it does not clearly

state that it reaches regulation of fleet procurement. Cf

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 607

(1991) (“mere silence” in the context of a statute authorizing

state regulation of pesticides cannot show clear and

manifest intent to preempt local authority); Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 245-46 (1985)

(general language authorizing suits against “any recipient

of Federal assistance” does not authorize suits against

state governments receiving federal funds). In light of the

evidence that the term “standards” has a narrow meaning

under-—the Act, the indisputable ambiguity of the words

“relating to” in isolation, and the overwhelming structural

evidence that section 209(a)’s first sentence only reaches

* Of course, these concerns apply fully when local government

exercises its authority, which derives from that of the state. See Printz

v. United States, 521 U.S. 898, 931 n. 15 (1997).

22

vehicle emission standards, it just cannot be said that

Congress had a “clear and manifest” intent to preempt

authority to use fleet procurement as an economic

incentive for clean air. Cf. City of Columbus v. Ours

Garage and Wrecker Service, 536 U.S. 424, 432-34 (2002)

(finding no clear and manifest intention to preempt local

authority, even when normal principles of statutory

construction would support preemption).

IV. Congress Did Not Protect Manufacturers

from the Influence of Economic Incentive

Programs, Like Fleet Purchase Programs.

This Court has rejected the notion that programs

merely influencing the economic incentives facing the

beneficiaries of federal preemption fall within the scope of

preemption in its ERISA jurisprudence. Since Congress

called on states to enact economic incentive programs to

influence vehicle emissions, section 209 does not preempt

fleet purchase programs.

A. Congress Intended to Encourage Economic

Incentives Programs, Including Fleet

Purchase Programs.

The Act encourages states to create “economic

incentives and requirements to reduce vehicle emissions.”

42 U.S.C. §§ 7408(f), 7511a(g)(4)(A). That is precisely what

fleet purchase programs do. Accord Clean Fuel Fleet

Program, 63 Fed. Reg. 20103, 20104 (1998); 136 Cong. Rec.

6463 (1990), reprinted in 4 1990 Leg. Hist. at 7209 (1993)

(statement of Senator Levin). They create inducements to

sell clean vehicles by providing a pool of customers who

will buy them, if they are available. Manufacturers have

— ll a

23

no obligation to sell them a single vehicle. See 136 Cong.

Rec. 6463 (fleet program avoids “mandated production and

sale”). Cf. Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001)

(preempted state law binds ERISA plan administrators to a

particular set of rules for determining plan beneficiaries).

But they can make more money if they do. Creation of a

market creates an economic incentive to sell clean

vehicles, not a standard regulating vehicle emissions.

This encouragement of economic incentives forms part

of a Congressional policy to use California as a “laboratory

for innovation.” Motor & Equipment Mfrs. Ass’n v. EPA,

627 F.2d 1095, 1111 (D.C. Cir. 1979). Cf. Travelers, 514

U.S. at 667-68 n. 6 (Congressional intention to encourage

state experimentation supports finding that ERISA rate

regulation does not reach state health care cost controls).

Our federalism contemplates local experimentation as a

means of trying to solve pressing social problems. See New

State Ice v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting); Smith v. Robbins, 528 U.S. 259, 272 (2000).

The SCAQMD’s fleet purchase program constitutes an

innovation creatively using economic incentives to address

a critical public health problem.

This use of economic incentive measures also serves the

Act’s policy of encouraging the advance of clean technology,

albeit by means other than “forcing” technology through

command and control standards. Cf. Union Electric, 427 U.S.

at 257-59 (discussing Congressional intent to force the

development of technology that appeared infeasible).

Command and control regulation often fails to encourage

innovation. By contrast, consumer demand provides a

continuous incentive for many types of innovation, but not

for innovations delivering public goods like environmental

protection. See David M. Driesen, The Economic Dynamics

24

of Environmental Law 93, 98-105 (2003). Local exper-

imentation with incentives to encourage production of

cleaner vehicles through consumer demand, rather than

mandatory regulation of manufacturing processes, may

aid encouragement of innovation advancing the state of

the art. 136 Cong. Rec. 4138 (1990), reprinted in 4 1990

Leg. Hist. at 5778 (statement of Senator Wirth)." Such

innovation is important in the Los Angeles area, because

land use patterns built around the automobile and

topography have produced air quality problems that resist

conventional solutions. Innovation can increase national

capacity to address intractable environmental problems.

B. Economic Incentive Programs Fall

Outside the Scope of Preemption Under

this Court’s Cases.

This Court has held that a clause preempting laws

that “relate to ... employee benefit plans,” 29 U.S.C.

§ 1144(a), does not reach laws that simply provide

economic incentives. In Travelers, a unanimous Court

upheld a New York law that required hospitals to charge

private health insurance plans more for hospital care than

Blue Cross/Blue Shield plans. 514 U.S. at 649. The Court

recognized that this economic incentive has an “economic

effect on choices” ERISA plan administrators make about

which type of insurance to purchase. Jd. at 659. But it

" Senator Wirth offered his comments with respect to an

Amendment that failed, but included requirements similar in form to

the fleet purchase requirements passed in the 1990 Amendments and in

the SCAQMD fleet purchase rules — requirements that impose purchase

requirements on fleet owners.

eet

Nt teenie

25

distinguished “indirect economic influence” from preempted

mandates binding administrators to a particular choice. Jd. A

unanimous Court explained that the prior cases finding

preemption under ERISA “mandated employee benefit

structures or their administration.” Jd. at 658 (emphasis

added). Thus, Travelers held that even under the older

ERISA cases, economic incentive programs do not “relate

to” employee benefit plans.

This distinction between mandates and economic

incentive programs likewise controlled Dillingham, 519

U.S. 316. That decision upheld a California law allowing

contractors to pay apprentices in qualified apprentice

programs a lower wage than the prevailing wage otherwise

required. Jd. at 319. Even though an apprenticeship program

financed through a separate fund constitutes an employee

benefit plan, id. at 326, the Court held that the law

authorizing the administrators of these benefit plans to

pay plan beneficiaries lower wages does not “relate to”

such a plan, id. at 334. It justified this decision by

distinguishing non-preempted state statutes that “alter

the incentives facing ERISA plans” from preempted laws

that “dictate the choices” of ERISA plan administrators.

Id. at 334. i

The principle that preemption does not reach economic

incentive programs applies here, since the fleet purchase

rules change the incentives vehicle manufacturers face,

rather than dictate their vehicle production choices. Just as

laws altering the economic incentives influencing ERISA

plan administrators do not “relate to” ERISA plans, fleet

purchase requirements are not “standards relating to”

control of new vehicle emissions. Since the Act specifically

encouraged economic incentives in general and fleet

purchase programs in particular, see 42 U.S.C. § 751la(c\4),

26

the Act does not protect vehicle manufacturers from rules

increasing local demand for clean vehicles. Congress

provided for preemption of vehicle emission standards in

section 209, not local economic incentive programs.

¢

CONCLUSION

The Act preserves the authority to use local

procurement as a source of economic incentives for clean

air. These rules are requirements related to the purchase

of vehicles, not standards related to the control of new

vehicle emissions. The public health amici ask the Court

to affirm the court of appeals ruling upholding SCAQMD’s

fleet purchase requirements.

Respectfully submitted,

ProF. DAVID M. DRIESEN

Counsel of Record for the

Public Health Amici Curiae