Corporate Average Fuel Economy (CAFE) Preemption

Federal RegisterDec 29, 2021

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Parts 531 and 533

[Docket No. NHTSA-2021-0030]

RIN 2127-AM33

Corporate Average Fuel Economy (CAFE) Preemption

AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

This document finalizes NHTSA's proposal to repeal in full “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” published September 27, 2019 (SAFE I Rule), in which NHTSA codified regulatory text and made additional pronouncements regarding the preemption of state and local laws related to fuel economy standards. NHTSA originally proposed to repeal the SAFE I Rule in a Notice of Proposed Rulemaking entitled “Corporate Average Fuel Economy Preemption,” which was published on May 12, 2021. After evaluating all public comments submitted for this Proposal, the Agency is finalizing the Proposal. As such, the Agency is repealing all regulatory text and appendices promulgated in the SAFE I Rule. In doing so, the Agency underscores that any positions announced in preambulatory statements of prior NHTSA rulemakings, including in the SAFE I Rule, which purported to define the scope of preemption under the Energy Policy and Conservation Act (EPCA), do not reflect the Agency's reconsidered understanding of its proper role in matters of EPCA preemption. Through this final rule, NHTSA makes clear that no prior regulations or positions of the Agency reflect ongoing NHTSA views on the scope of preemption of states or local jurisdictions under EPCA.

DATES:

This action is effective on January 28, 2022.

Petitions for Reconsideration:

Pursuant to 49 CFR 553.35, petitions for reconsideration of this final rule must be received not later than February 14, 2022.

ADDRESSES:

Any petitions for reconsideration should refer to the docket number of this document and be submitted to: Deputy Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West Building, Fourth Floor, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Hunter B. Oliver, Office of Chief Counsel, NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 1200 New Jersey Ave. SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview of Final Rule

A. Summary of Proposal

B. Public Participation Opportunities and General Overview of Comments

C. Finalized Approach

II. Final Rule

A. This Final Rule Is a Proper Exercise of NHTSA's Reconsideration Authority

B. NHTSA Is Finalizing Its Repeal of the SAFE I Rule in Its Entirety

III. Rulemaking Analyses and Notices

1. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

2. Executive Order 13990

3. Executive Order 14008

4. Regulatory Flexibility Act

5. Executive Order 13132 (Federalism)

6. Unfunded Mandates Reform Act of 1995

7. National Environmental Policy Act

8. Executive Order 12988 (Civil Justice Reform)

9. Paperwork Reduction Act

10. Privacy Act

11. Congressional Review Act

I. Overview of Final Rule

A. Summary of Proposal

On May 12, 2021, NHTSA published in the

Federal Register

a Notice of Proposed Rulemaking (NPRM or Proposal) entitled “Corporate Average Fuel Economy (CAFE) Preemption,” which set forth the proposal that NHTSA is finalizing today.

As explained in the Proposal, this NPRM considered a repeal of NHTSA's portion of a joint agency action completed by NHTSA and the Environmental Protection Agency (EPA) in 2019, “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program” (SAFE I Rule or Rule).

In the SAFE I Rule, NHTSA and EPA finalized a joint agency action relating to the state regulation of greenhouse gas (GHG) emissions from motor vehicles and state mandates for zero emission vehicles (ZEVs). In that action, NHTSA codified regulatory text and appendices, which expressly declared that certain types of state regulation were preempted due to a perceived irreconcilable conflict with the Agency's fuel economy standards. In addition, the Agency published further statements in the preambles of the SAFE I rulemaking, which described various types of state regulations as preempted. As part of the SAFE I action, EPA also withdrew portions of a waiver that EPA had previously extended to the California Air Resources Board (CARB) under Section 209 of the Clean Air Act to regulate new motor vehicle emissions through GHG standards and a ZEV mandate.

See

DOT, NHTSA, Notice of Proposed Rulemaking, Corporate Average Fuel Economy (CAFE) Preemption, 86 FR 25980 (May 12, 2021) (referred to in subsequent citations as “CAFE Preemption NPRM”).

See generally

NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310 (Sept. 27, 2019).

Unless otherwise stated herein, all references to the SAFE I Rule and any associated discussions in this final rule refer only to NHTSA's portions of the SAFE I action and do not include any EPA actions on the California waiver.

On January 20, 2021, President Biden signed Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” which, among other actions, directed DOT, NHTSA, and EPA to immediately review and consider suspending, revising, or rescinding their respective portions of the SAFE I Rule. NHTSA's resulting comprehensive assessment of the SAFE I Rule identified potential problems relating to both the legal authority claimed by NHTSA for the rulemaking and the degree to which the categorical prohibitions announced by the Agency failed to appropriately account for the substantial and often nuanced state interests in the measures purportedly preempted by the SAFE I Rule. As a result of these considerations, NHTSA published the NPRM, to propose a repeal of the SAFE I Rule and to solicit public comment on the Agency's concerns about the legality and prudence of the rulemaking. On April 28, 2021, EPA outlined its own review of the EPA aspects of the SAFE I joint agency action, publishing a Notice of Opportunity for Public Hearing and Comment that proposed a reconsideration of EPA's withdrawal of California's waiver under the Clean Air Act.

Both agencies have expressly recognized that their respective reconsideration proposals are separate, independent proceedings.

See generally

EPA, Notice of Opportunity for Public Hearing and Comment, 86 FR 22421 (Apr. 28, 2021).

See id.

at 22422 n.3 (“This action is being issued only by EPA and, therefore, does not bear upon any future or potential action NHTSA may take regarding its decision or pronouncements in SAFE I.”); CAFE Preemption NPRM, 86 FR 25981 n.3 (“This proposed rule is being issued only by NHTSA. As such, to the extent EPA subsequently undertakes an action to reconsider the revocation of California's Section 209 waiver, such action would occur through a separate, independent proceeding.”).

In the CAFE Preemption NPRM, NHTSA proposed to repeal the SAFE I Rule for several independent reasons. First, the Agency repeatedly expressed substantial doubts regarding the legal validity of the Rule. As the NPRM explained, NHTSA became concerned about whether the Agency possesses the authority to define the scope of EPCA through rulemaking. Accordingly, NHTSA proposed to repeal and withdraw the codified regulations and appendices, as well as any associated interpretations or views on EPCA preemption contained in the SAFE I Rule, including in the regulatory text of Sections 531.7, 533.7, and appendices B to Parts 531 and 533.

In the Proposal, NHTSA recognized that the statutory preemption provision in EPCA, Section 32919, was self-executing. In this respect, Section 32919 is able to preempt state or local laws directly, without the need for a DOT or NHTSA regulation that further implements either EPCA preemption or this particular statutory provision. As such, the statutory provision is both standalone and fails to articulate any role for the Agency in further dictating a preemptive scope. Accordingly, the NPRM proposed that Section 32919 and EPCA were more appropriately read as indicating that Congress did not intend to empower NHTSA to define preemption in this manner. As a result, NHTSA's Proposal expressed concern that in the SAFE I Rule, the Agency acted outside of its delegated authority by publishing regulations and pronouncements that sought to do just such a thing. Accordingly, the NPRM proposed to repeal the SAFE I Rule.

In addition, the Proposal also articulated a separate basis for repealing the entirety of the SAFE I Rule, which rested upon the inappropriateness of such a sweeping pronouncement of preemption. Even if EPCA had imbued NHTSA with power to dictate preemption through regulations, the expansive manner in which this authority was wielded in the SAFE I rulemaking failed to appropriately account for a variety of important considerations. These include legally relevant factors, such as the substantial federalism interests of states and local jurisdictions who had long relied on programs to address environmental hazards in their local communities or comply with other federal air pollution requirements. In addition, the categorical and generally applicable scope of the SAFE I Rule also precluded consideration of other fact-specific attributes of particular programs, many of which represent diverse characteristics that bear upon the application of EPCA preemption and the accuracy of any ensuing preemption analysis. Many of these factors—some of which were not even discussed in the SAFE I rulemaking—strongly suggest that a more considered and circumscribed dispensation of any preemption authority would more narrowly tailor any preemptive pronouncements to better account for the diverse, nuanced, and relied upon federalism interests of the preempted state governments and their constituents. As described further below, these concerns were raised and expressed by a significant number of public comments, especially from those local jurisdictions most affected by the rulemaking. These jurisdictions described numerous unique considerations regarding their programs that the SAFE I Rule's absolute proclamation of preemption did not fully contemplate. These considerations reflected the Agency's similar concerns in the NPRM, which proposed to repeal the SAFE I Rule in its entirety in order to establish a “clean slate,” that restores NHTSA's longstanding practice of undertaking a more careful and particularized role in the EPCA preemption discourse.

Finally, even apart from the lack of rulemaking authority and the overly broad manner of the SAFE I Rule's prohibitions, the NPRM also proposed a repeal of the SAFE I Rule in order to remove the regulation that overcomplicated or potentially confused an otherwise direct application of Section 32919's statutory standards. In connection with a proposed repeal of the regulatory text from the SAFE I Rule, the NPRM also proposed to clarify that, to the extent prior statements from rulemaking preambles (from the SAFE I Rule or otherwise) discussed aspects of EPCA preemption or could be read as interpretative views on the subject, those statements should not be read as continuing views of the Agency. While this clarification was not legally necessary, NHTSA still considered it worthwhile because the inconsistent nature of many of the Agency's prior statements on EPCA preemption and the oftentimes imperative language utilized in such statements—especially during the SAFE I rulemaking—risked a confusing landscape in which regulated entities and the public were unsure of the precise legal effect of Agency statements that purported to control EPCA's preemptive reach. Moreover, NHTSA felt that many of those statements, particularly in the preambles of the SAFE I Rule, contained sweeping and definitive language on preemption, which left no room for nuance or further deliberation about particular programs, and obscured the Agency's ongoing internal consideration of whether EPCA actually enacted a narrower scope of preemption than claimed in the rulemaking. In light of these considerations, the NPRM proposed to expressly disclaim any of these prior statements to make clear they no longer accurately reflected the Agency's position on the issue.

B. Public Participation Opportunities and General Overview of Comments

The public docket opened for this rulemaking following the

Federal Register

publication of the NPRM on May 12, 2021. The public comment period spanned 30 days, with comments due on June 11, 2021. During that time, the Agency received 445 comments. As of the date of today's final rule, NHTSA has not received any late comments posted after the close of the comment period.

Following the close of the comment period, the State of California requested a meeting to describe aspects of a public comment submitted by California, along with other states and cities.

See

State of California et al., Docket No. NHTSA-2021-0030-0403,

Comments of States and Cities Supporting Repeal of NHTSA's “SAFE” Part One Preemption Rule

(June 11, 2021). In this meeting, which occurred on August 26, 2021, California walked through the various sections of their comment. A docket memo posted by NHTSA to the rulemaking docket provides more information regarding this meeting. See

NHTSA,

Docket No. NHTSA-2021-0030-0450, Docket Memo,

Meeting with the State of California,

(Sept. 7, 2021).

NHTSA closely reviewed each of the comments posted to the docket for this Proposal. While NHTSA is responding to the particular comments in further detail in the substantive analysis in the following sections of this final rule, at a high level, the public comments spanned a diverse array of state and local jurisdictions, regulated entities and trade associations for regulated industries, public interest groups and other nonprofit organizations, and individual members of the public. The Agency appreciates the time and effort dedicated by these parties in submitting their comments and is grateful for the diversity and depth of views, both for and against the Proposal, expressed by the commenters.

Overall, the Agency received comments spanning the entire spectrum of perspectives with respect to the Proposal. The vast majority of comments from the entities most immediately affected by the rulemaking,

i.e.,

states and local jurisdictions, strongly supported the Proposal. In particular, as explained further below, many of these comments provided tangible examples of hardships imposed

by the SAFE I Rule and identified nuanced aspects of their affected programs that were not fully considered during the SAFE I rulemaking. Likewise, comments from entities or associations in the automotive industry, who are directly affected by motor vehicle emission regulations, largely tended to support the Proposal or offer more neutral views. With a few exceptions, most other institutional commenters strongly supported the rulemaking as well. Such commenters consisted of public interest groups, such as environmental or consumer advocacy organizations, who overwhelmingly supported the Proposal and urged a swift repeal of the SAFE I Rule for many of the same reasons expressed in the NPRM.

The Agency also received several institutional comments that expressly opposed the Proposal. While these comments are discussed in depth later in this final rule, in a general sense, these comments urged the Agency to retain the SAFE I Rule in its entirety. Many of these comments defended the substantive validity of the preemption scope announced in the SAFE I Rule, and construed NHTSA's governing authorities as delegating to the Agency the power to regulate preemption in the manner attempted in that rulemaking. Several of these comments also questioned the sufficiency of NHTSA's proposed justifications to repeal the SAFE I Rule, essentially arguing that NHTSA could not reasonably repeal a substantive position on preemption without replacing it with an alternative substantive view. While a number of individuals commented in support of the Proposal, the Agency recognizes that many individual members of the public also opposed a repeal of the SAFE I Rule.

The vast majority of these individual commenters who opposed the rulemaking appeared to participate in an organized letter writing campaign, judging from the fully or partially verbatim overlap in language or terminology in many of those comments, and raised the same general objections to the proposed rule.

Finally, a significant portion of the comments raised, either in full or in part, issues beyond the narrow scope on which NHTSA proposed to repeal the SAFE I Rule. Such topics, which appeared in comments both supportive of and opposed to the Proposal, tended to focus on the substantive aspects of the CAFE program, such as the appropriate levels of fuel economy stringency, the effect of any particular state programs on the environment or vehicle fleets, or specific vehicle technologies, such as electrification. Likewise, as anticipated in the NPRM, many of the commenters also articulated substantive views on the appropriate scope of EPCA preemption.

NHTSA recognizes that many of these issues pose important societal or public policy questions and, in fact, analyzed a number of these topics in significant detail as part of its standard-setting analysis proposed in the

Federal Register

on September 3, 2021, “Corporate Average Fuel Economy Standards for Model Years 2024-2026 Passenger Cars and Light Trucks.”

Nevertheless, most of these issues do not directly speak to the proposed bases of NHTSA's repeal of the SAFE I Rule, given the very narrow scope of this rulemaking, which principally arose from a reconsideration of the discrete legal issues that underpinned the exercise of Agency authority in the SAFE I rulemaking. As such, while NHTSA greatly appreciates the efforts of commenters to submit such views and thoroughly reviewed them as part of the Agency's continuous efforts to understand broader public perspectives on NHTSA's fuel economy responsibilities, such views do not directly bear upon today's final rule.

See, e.g.,

CAFE Preemption NPRM, 86 FR at 25982 n.8 (“The Agency anticipates that many stakeholders may comment, urging the Agency to go further—not mere not merely to repeal the preemption determination, but to affirmatively announce a view that State GHG and ZEV programs are not preempted under EPCA. Nevertheless, the Agency deems any such conclusions as outside the scope of this Proposal.”).

NHTSA, Corporate Average Fuel Economy Standards for Model Years 2024-2026 Passenger Cars and Light Trucks, 86 FR 49602 (Sept. 3, 2021).

C. Finalized Approach

Today's final rule finalizes the proposal set forth in the CAFE Preemption NPRM. As such, this final rule repeals all aspects of the SAFE I Rule, both the codified regulatory text and the accompanying pronouncements about the scope of CAFE preemption. Specifically, the final rule repeals 49 CFR Sections 531.7 (“Preemption”) and 533.7 (“Preemption”), as well as each Appendix B in 49 CFR part 531 (“APPENDIX B TO PART 531—PREEMPTION”) and Part 533 (“APPENDIX B TO PART 533—PREEMPTION”). In doing so, NHTSA's regulations will return to the same state for which they existed throughout the nearly 50-year history of the Agency's CAFE program—in which no regulation existed to purport to broadly define the scope of EPCA preemption.

In finalizing this Proposal, NHTSA concludes that it lacked authority to dictate the scope of EPCA preemption enacted in Section 32919. The plain language of Section 32919 establishes a clearly executable preemptive framework that can be applied by any reviewing court in the absence of an Agency regulation purporting to further dictate EPCA's preemptive scope. This conclusion is not simply presupposition, but as NHTSA's Proposal referenced and many commenters subsequently emphasized, the self-sufficiency of Section 32919 is a straightforward historical observation demonstrated by the provision's repeated application by Federal courts across the country—both to uphold and to preempt various state and local laws. The text of Section 32919 does not mention any role for NHTSA in codifying binding preemption requirements, nor does it state that the Agency is conferred with preemption rulemaking authority. Instead, the statute is self-executing and suffices to control the preemption analysis. The courts retain their authority to decide preemption questions; furthermore, the Agency may, consistent with law, provide interpretations of CAFE preemption questions other than by legislative rule. Thus, repeal of the SAFE I Rule is not simply appropriate, but a necessary measure to ensure that NHTSA is acting within the appropriate scope of its authority under EPCA.

In addition, today's final rule also concludes that a repeal of the SAFE I Rule is appropriate irrespective of whether NHTSA had legal authority for the SAFE I rulemaking. Through both its regulations and preambulatory language, the SAFE I Rule sweepingly preempted expansive categories of state and local motor vehicle emissions regulations. In doing so, the SAFE I Rule imposed immutable preemption requirements of general applicability, while ignoring the substantially important federalism interests affected by such prohibitions. Many of the comments from states and local jurisdictions underscored this position, identifying specific state programs affected by the SAFE I Rule that those states had previously relied on to protect their citizens from environmental hazards and to meet federal obligations, such as attainment goals for National Ambient Air Quality Standards for criteria pollutants.

imposing categorical preemption prohibitions without regard for such considerations, the SAFE I Rule impermissibly failed to account for legally relevant factors, such as reliance interests of states and local jurisdictions in longstanding programs potentially affected by the Rule. In doing so, the SAFE I Rule precluded potential avenues for a more tailored approach that considered programs in a more particularized setting rather than prematurely overriding those federalism interests in a categorical manner.

See, e.g.,

National Association of Clean Air Agencies, Docket No. NHTSA-2021-0030-0140 (June 10, 2021) (“For California and states that implement California's motor vehicle emissions program under Section 177 of the federal Clean Air Act, their GHG and ZEV programs are vitally important. Such programs enable long-term planning and yield critical emission reductions that will contribute significantly to states' abilities to meet their climate goals and their statutory obligations to attain and maintain the health-based

National Ambient Air Quality Standards (NAAQS) for criteria pollutants.”).

Moreover, by purporting to preempt abstract categories of regulation, the SAFE I Rule's prohibitions were both categorical and anticipatory—largely precluding entire subjects of state regulations without analyzing important factual questions or variables, such as the particulars of state programs, their specific manners of implementation, or possible scientific developments that may affect the relevant technologies. Therefore, even if the SAFE I Rule constituted a legitimate exercise of the Agency's authority, it represented an overly broad attempt to preempt state and local laws that precluded more detailed, and therefore potentially more accurate, considerations of specific programs. As such, NHTSA considers the SAFE I Rule's categorical and anticipatory scope to express an inappropriately broad and restrictive view on EPCA preemption. Accordingly, independent from the authority question, the SAFE I Rule conflicts with the need for a more focused consideration of preemption issues and, as such, must be repealed.

Finally, as part of today's notice, NHTSA is also expressly emphasizing that language in the preambulatory statements of other rulemakings, including the SAFE I Rule, which purport to dictate the scope of EPCA preemption, should no longer be viewed as the position of the Agency.

Indeed, several commenters expressed a view that those statements should be naturally understood as defunct upon a formal repeal of any attendant regulatory text.

In any event, given the degree to which many of these statements—especially in the SAFE I Rule—employ absolute language and purport to outright prohibit certain regulations, the Agency feels that it is important to make abundantly clear that these statements should not be read out of context to suggest that they remain current views of the Agency. This ensures that parties otherwise affected by such statements are not confused about whether the admonitions and prohibitions contained in the statements, which remain published in the

Federal Register

even after the repeal of the actual regulations from the Code of Federal Regulations, continue to apply.

The specific statements identified by the Agency are described further in Section II.B.iii.b.

See also

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021) (discussing federal jurisprudence defining the scope of the term “related to”).

While all of these comments raise the important questions of how far EPCA's scope extends and which state programs may be affected by such a scope, as the Agency explained both in the Proposal and in today's final rule, those issues are distinct from the narrow legal considerations that factor into this rulemaking. NHTSA's statutory authority to codify standalone requirements for EPCA preemption is a separate question from whether the substance of those requirements exceeds the scope of Section 32919. Likewise, even if the Agency had authority for the SAFE I Rulemaking, it remains possible for NHTSA to have wielded this authority in an inappropriately broad or inattentive manner, irrespective of the ultimate substantive preemption scope propounded in such an action. Consequently, none of the grounds invoked in this rulemaking for a repeal of the SAFE I Rule depend upon a particular interpretation of EPCA's preemptive scope. As such, as NHTSA explained elsewhere in this notice, finalizing this rulemaking without delving into those issues presents the most responsible option, which best satisfies the need for a swift repeal of the SAFE I Rule while preserving space for an ongoing thoughtful consideration of these complex substantive issues.

In a similar vein, several comments opposing the NPRM argued that NHTSA's Proposal was inadequately justified because the proposed repeal of the SAFE I Rule was not accompanied by a detailed economic analysis, such as a regulatory impact statement. These commenters, such as the American Fuel and Petrochemical Manufacturers (AFPM), contended that NHTSA could not repeal the SAFE I Rule without “fully analyz[ing] the impacts” or “examin[ing] the relevant data” behind economic impacts from this rulemaking.

For example, AFPM argued that such an analysis must undertake a detailed economic estimate of a litany of considerations, including “the foreseeable impacts” to “vehicle cost, jobs, low-income households, small businesses, etc.,” as well as an evaluation of how possible programs that may be initiated by states following a repeal affect other estimates, such as electric vehicle pricing or the stringency of subsequent CAFE standards.

Other commenters argued similarly, insisting that a repeal of the SAFE I Rule would “almost certainly lead to” more stringent fuel economy standards and inflated vehicle prices, thereby eroding consumer choice.

Additional commenters propounding this view submitted their own voluminous impacts analyses of a repeal of the SAFE I Rule, which included submissions of material such as declarations from academics, published journal articles analyzing particular regulatory programs, and past regulatory analyses conducted by EPA and CARB regarding specific regulatory programs.

American Fuel & Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425 (June 11, 2021).

Id.

Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

See

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (including Attachments 2-9).

To the extent commenters articulated these positions as reasons NHTSA failed to satisfy various Executive Orders, the National Environmental Policy Act (NEPA), and other broadly applicable requirements, those aspects of the arguments are addressed in Section III (Rulemaking Analyses and Notices).

However, insofar as those comments suggest that the absence of a detailed economic analysis inadequately justifies a repeal, NHTSA rejects such arguments as misconstruing the nature of this rulemaking.

Likewise, many of the reasons outlined here also apply to those rulemaking analyses sections.

As explained throughout this final rule, NHTSA has concluded that the SAFE I Rule was legally flawed in a manner that legally necessitates a repeal. First, as Section II.B.i. of the final rule concludes, NHTSA issued the SAFE I Rule in excess of its authority. Accordingly, the Agency believes that the only legally appropriate course of action is to repeal the SAFE I Rule in order to undo the legally invalid action. Similarly, as Section II.B.ii. of this notice explains, NHTSA also ignored significant and legally relevant factors when promulgating the SAFE I Rule. Overlooking these considerations also renders the SAFE I Rule legally invalid and in need of repeal. Each of these grounds is governed by a legal determination, such as the legal standards and questions of statutory construction applicable to an agency's delegation of authority. These principles of law dictate a repeal of the SAFE I Rule irrespective of the policy concerns or impacts asserted by such commenters, which cannot cure the legal deficits in the SAFE I Rule. Therefore, the concerns raised by such commenters do not alter either the legal frameworks or the legally necessitated outcomes described in Sections II.B.ii. and II.B.iii. of this notice.

Moreover, such commenters also fail to account for the fact that, through this repeal, NHTSA's regulations are simply returning to the status quo as it existed prior to the legally invalid action of the SAFE I Rule. Thus, in this rulemaking, NHTSA is not taking a position on

whether any individual program is preempted or not. And, even after this final rule, the viability of individual state or local programs and any associated policy impacts from those programs will be dependent on a host of particularized and contingent variables. In light of this, it is difficult to project, even for illustrative purposes, the incremental impacts of this regulatory action.

NHTSA expands on this same issue in the NEPA section of this final rule, which explains that a statutory construction analysis controls the question of whether Section 32919 delegated authority to NHTSA to promulgate express preemption regulations. This analysis, in turn, looks to the language of the statute to discern Congress' intent.

In addition, because the Agency does not consider an analysis of those programs in the abstract or aggregate appropriate, doing so here for purposes of analyzing impacts would risk the same sort of sweeping and overly broad preemption conclusions characteristic of the SAFE I Rule. As described in Section II.B.ii., the Agency has determined that the SAFE I Rule was both far too broad and too restrictive and did not take into account a host of legally relevant considerations, such as reliance interests, the important reasons for the state and local laws it sought to preempt, and, most importantly, the actual details of those laws. Accordingly, hypothesizing about the substantive scope of EPCA preemption for purposes of a cost-benefit analysis would undermine one of the principal goals of this rulemaking, which seeks to defer assessments of programs until the times and places in which they can be more particularly and thoroughly considered. Moreover, hypothesizing as such also further diminishes the extent to which the results of a cost-benefit analysis could inform this rulemaking because those programs are more appropriately and accurately considered in more particular contexts where it is not necessary to make abstract projections or theorize about programs or technologies that may not even exist yet.

Furthermore, in this repeal, the Agency is not declaring any particular program preempted or not preempted. Instead, this repeal simply makes the point that any such preemption analysis should be undertaken more narrowly and carefully and does not seek to alter the preemption landscape already established by Section 32919. In contrast, it was the SAFE I Rule that marked a departure from the Agency's longstanding practice of refraining from issuing EPCA preemption rules. In reality, as both the Proposal and this final rule have stressed, EPCA preemption is properly governed by the self-executing statutory language of Section 32919. That language remains in place, unchanged, irrespective of this rulemaking. The courts, of course, retain their usual authority to decide matters of EPCA preemption. In turn, the Agency may also at some point offer interpretations as guidance on its views on questions of EPCA preemption, though not through the mechanism of a legislative rule. Nevertheless, the preemption framework established by the statutory language in Section 32919 continues to govern the ultimate preemption analysis.

Moreover, it is worth noting that the SAFE I Rule itself did not include a quantitative analysis of the costs or benefits that these commenters now argue should accompany its repeal, but rather only provided a “qualitative discussion of the impacts” of the preemption regulations it promulgated.

This is despite the fact that the SAFE I Rule purported to preempt many state and local programs that were already in place, which would have had significant economic effects. This provides a clear contrast to this final rule, which takes no position on whether any particular programs are preempted.

CAFE Preemption NPRM, 86 FR at 51352.

Various commenters raised other issues that are clearly outside the scope of this rulemaking. A joint comment submitted by the State of Ohio along with several other states did not explicitly support or oppose the Proposal, but simply expressed the view that by permitting California to seek a waiver, Section 209 of the Clean Air Act unconstitutionally violates the equal sovereignty doctrine by affording preferential treatment to the State of California.

The comment thus concludes that “any agencies that issue such a waiver are therefore acting unconstitutionally.”

NHTSA need not wade into the substance of the equal sovereignty doctrine in response to this comment. This rulemaking is conducted solely by NHTSA, and any EPA adjudication of a California waiver application under Section 209 constitutes a separate, independent proceeding.

Repealing the SAFE I Rule merely removes the impermissible layer of regulatory preemption from NHTSA's own regulations. The broad preemption framework codified by the SAFE I Rule applied equally to all states and repealing this framework likewise refreshes the preemption analysis for the entire country. Accordingly, repealing the SAFE I Rule does not extend differential treatment to any state or local jurisdiction.

State of Ohio et al., Docket No. NHTSA-2021-0030-0355 (June 11, 2021).

Id.

Supra

n.5.

In addition, several commenters raised a variety of issues relating to the administration of the CAFE program, which do not inform the legal bases pertinent to today's repeal of the SAFE I Rule. These range from comments advocating for a particular stringency of any fuel economy standards later promulgated by NHTSA

to requesting a new interpretation of 49 U.S.C. 32902 in order to more expansively consider electric vehicles in the standard setting analysis.

While such commenters are encouraged to raise such issues in connection with future NHTSA rulemakings setting CAFE standards, this particular rulemaking does not touch on the standard setting analysis.

Consumer Reports, Docket No. NHTSA-2021-0030-0224 (June 11, 2021); Allergy & Asthma Network et al., Docket No. NHTSA-2021-0030-0299 (June 4, 2021).

Rivian, Docket No. NHTSA-2021-0030-0413 (June 11, 2021).

Finally, NHTSA received over four hundred comments from individual commenters who expressed perspectives on the Proposal. The vast majority of these comments from individuals did not speak to the particular legal issues implicated in this rulemaking, but raised broader policy issues instead. A large number of these comments expressed opposition to the rulemaking. While submitted individually, by and large, these opposition comments appeared to be form comments or part of an unspecified letter writing campaign, as they frequently employed verbatim language. Specifically, an overwhelming number of the comments started with the exact same phrase: “California should not be deciding what kind of cars the rest of the country can buy, and here is why . . .”

While the reasons provided after this opening clause varied somewhat, they all pertained to substantive policy issues surrounding motor vehicle regulations rather than the narrow legal grounds necessitating a repeal of the SAFE I Rule. Frequent examples of the substantive policy concerns raised in these comments include: Skepticism towards climate change and related environmental issues; objections to vehicle electrification; concerns about consumer choice in the availability of motor vehicles; and vehicle price concerns. Most of these comments also appeared

directed more to a restoration of California's waiver for the Advanced Clean Cars program under the Clean Air Act, which, as both NHTSA and EPA have explained, is a separate proceeding from this rulemaking.

Finally, quite a few comments failed to raise any substantive policy concerns at all, but simply expressed political hostility towards a variety of subjects, especially including the State of California and the EPA.

See, e.g.,

Comment from Thomas Houghton, NHTSA-2021-0030-0028 (June 3, 2021).

Supra

n.5.

To the extent these commenters associated this rulemaking with the EPA's reconsideration of California's waiver under the Clean Air Act or otherwise raised vague allegations that EPA was actually controlling this rulemaking, NHTSA reiterates again that both the NPRM and final rule were issued solely by NHTSA. Unlike the SAFE I and SAFE II Rules, this is not a joint rulemaking with EPA (or any other agency).

See also

Zero Emission Transportation Association, Docket No. NHTSA-2021-0030-0397 (June 11, 2021) (supporting policies that “increase the pace of zero emission vehicle deployment that are critical to decarbonizing the transportation sector”).

Finally, even though many of the individual commenters expressly opposed the Proposal, NHTSA notes that many of these same comments frequently invoked reasons that actually support the rationale for the rulemaking. By far the most common theme developed in the individual comments opposing the Proposal was a concern for states' rights and skepticism of any approach that imposed an overgeneralized restriction on the ability of local jurisdictions to respond to the diverse needs of their respective communities.

These commentors opposed the Proposal based on a faulty assumption that NHTSA's rulemaking proposed to delegate the authority to California to set legally binding standards on the rest of the United States.

Of course, neither the Proposal nor today's repeal delegates any authority to California or elsewhere. This rulemaking does not even take a substantive position on the status of any individual program of a state or local jurisdiction. Instead, repealing the SAFE I Rule merely repeals an impermissible layer of prescriptive preemption requirements, which the Agency was not authorized to promulgate, and which improperly ignore legally relevant preemption considerations. Through such a repeal, NHTSA also removes unnecessary and inappropriate restrictions on potential policy flexibility and innovation at the state and local levels as it relates to motor vehicle emissions regulations. This additional flexibility at state and local levels may even address this theme expressed in many of these individual comments, which consistently opposed measures that applied an overbroad or one-size-fits-all approach to state and local concerns.

See, e.g.,

Mark Franck, Docket No. NHTSA-2021-0030-0043 (June 3, 2021) (“California should not be deciding what kind of cars the rest of the country can buy. This damaging new rule, would allow California to make special regulations that the rest of us would be required to follow.”).

B. NHTSA Is Finalizing Its Repeal of the SAFE I Rule in Its Entirety

After evaluating the public's input regarding the Proposal and further assessing the Agency's concerns regarding the SAFE I Rule, NHTSA is finalizing its proposed approach of repealing the SAFE I Rule in its entirety, including both the regulatory text and the other pronouncements that the Agency made in the document about EPCA preemption. The Agency concludes that this approach is both legally required and appropriate for several distinct reasons. First, as described further in Section II.B.i., the Agency lacked the authority to promulgate regulations on preemption, as the SAFE I Rule attempted to do. Second, as described in Section II.B.ii., regardless of whether NHTSA actually had authority for the SAFE I Rule, the Rule was still promulgated without regard for legally relevant and important considerations that should have informed the preemption analysis. Instead of accounting for those issues before fundamentally altering relied-upon federalism interests, the SAFE I Rule instituted a rigid and categorical preemption framework without regard for whether a narrower approach was available. Third, irrespective of a lack of authority or the Rule's overly broad scope, the SAFE I Rule still warrants repeal in order to mitigate the unnecessary complexity and potential confusion the SAFE I Rule injected into the EPCA preemption framework. By repealing this erroneous framework and refocusing the preemption analysis on the original statutory language, this final rule also provides space for the Agency to more carefully and appropriately

incorporate those considerations into any future action that may become necessary with respect to EPCA preemption.

In all of these matters, the Agency remains mindful that EPCA does not require NHTSA to speak substantively on EPCA preemption, and certainly not through the promulgation of legislative rules. Under the unambiguous language of EPCA, the Agency could indefinitely remain silent as to Section 32919 without running afoul of any congressional directive or statutory mandate. As such, even if the SAFE I Rule's supporters have policy preferences for wanting the Rule to remain, there is indisputably no statutory requirement for the Rule. Thus, upon reconsideration, NHTSA concludes that a rule of this kind, which suffers from legal deficiencies and was imprudent for the Agency to issue, is particularly appropriate for repeal.

i. NHTSA Is Finalizing Its Proposal To Repeal the SAFE I Rule in Full Due to a Lack of Authority for the Original Rulemaking

a. Section 32919 Did Not Authorize NHTSA To Dictate Preemption in the Manner Attempted by the SAFE I Rule

NHTSA concludes that a repeal of the SAFE I Rule is legally required because the Agency lacked the requisite authority to codify the standalone regulations promulgated by the SAFE I Rule. The Agency maintains the Proposal's view that in promulgating the SAFE I Rule, NHTSA attempted to exercise a legislative rulemaking function by establishing binding, express preemption requirements, which sought to control, rather than advise, the public (including states and local jurisdictions). In order to set these regulatory mandates, Congress would have had to first provide authority to NHTSA to act in such a manner. However, the Agency has determined that Congress did not intend for Section 32919 to provide NHTSA authority to institute additional express preemption terms, or to codify the scope of EPCA preemption through legislative rulemaking.

1. The SAFE I Rule Codified Legislative Rules, Which Sought To Impose Standalone Preemption Requirements

Before describing the limitations on NHTSA's authority, the Agency first confirms the Proposal's understanding of the SAFE I Rule as codifying legislative rules, which sought to institute binding preemption requirements. NHTSA recognizes that although numerous commenters agreed with the Proposal on this issue, several commenters opposing the Proposal contested either the legislative status of the SAFE I Rule or whether the distinction even matters for this reconsideration. To be clear, NHTSA considers a repeal of the SAFE I Rule both appropriate and necessary for the reasons described throughout this final rule, irrespective of whether one considers the Rule to be legislative, interpretative, or any other form of agency statement. Nevertheless, NHTSA still views the SAFE I Rule as displaying the hallmarks of a legislative regulatory action. As such, the Agency starts the authority discussion with this issue.

In this respect, the Agency distinguishes between a legislative rule, “which is a rule that is intended to have and does have the force of law,” and an interpretative rule, which “does not have the force of law and is not binding on anyone.”

For this reason, legal scholars have often noted that while interpretative rules may provide guidance to the public or “persuad[e a] court that the agency's interpretation is correct,”

they ultimately lack a binding effect, serving only to “advise the public.”

As such, an interpretative rule “does not contain new substance of its own” but is simply a conduit for understanding a pre-existing obligation already established by the statute under interpretation.

In contrast, legislative rules have long been understood as imposing binding obligations that “affect[ ] individual rights and obligations.”

Further, “the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes.”

Consequently, for NHTSA to have validly promulgated legislative rules in the SAFE I Rule, Congress must have first provided the authority to the agency to do so.

Nat'l Latino Media Coal.

F.C.C.,

816 F.2d 785, 787-88 (D.C. Cir. 1987) (explaining further that “A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law.”).

See

Richard J. Pierce, Jr. & Kristin E. Hickman, Administrative Law Treatise § 4.5 (6th Edition, 2020-1 Cum. Supp.) (“The agency's interpretative rule serves only the function of potentially persuading the court that the agency's interpretation is correct . . . Correspondingly, members of the public may choose for practical reasons to comply with an interpretative rule.”).

See

Attorney General's Manual on the Administrative Procedure Act (1947) at 30 n.3.

Nat'l Latino Media Coal.,

816 F.2d at 788.

See Morton

Ruiz,

415 U.S. 199, 232 (1974).

See Chrysler Corp.

Brown,

441 U.S. 281, 302 (1979).

Within this backdrop, NHTSA views the SAFE I Rule as clearly intending to establish binding preemption requirements, which affirmatively prohibited programs of states and local jurisdictions. As described further below, both the regulatory text and the manner in which NHTSA contemporaneously described its rulemaking lead to the conclusion that the SAFE I Rule was not an effort to inform, but an effort to issue binding, prescriptive requirements with the force and effect of law. This conclusion is supported by multiple facets of the rulemaking, many of which were illustrated through the comments.

Several commenters to the Proposal disagreed that the SAFE I Rule was a legislative rule or that the distinction between a legislative and interpretive rule mattered. Although the Agency responds more specifically to such detailed concerns below, NHTSA nevertheless considers the legislative status of the SAFE I Rule ultimately a straightforward outgrowth of the regulatory background and applicable law. While courts and legal scholars have set forth numerous multi-part tests or thresholds for trying to find the demarcation point between interpretative and legislative rules, they all overwhelmingly seek to answer a question much different, and frequently more complicated, than that presented in this rulemaking. In the typical fact pattern, encountered by many courts, an agency seeks to characterize its own action as interpretative and valid absent the undertaking of notice-and-comment procedures, while challengers (often the regulated entities most affected by the action) argue that the rule alters their substantive obligations and necessitates notice-and-comment procedures before promulgation.

As such, these multifaceted judicial doctrines seek to aid a reviewing court in reconciling the contradictory positions between the regulators and the regulated, in order to accurately understand how extensively the agency's action actually attempted to affect the rights and obligations of the regulated parties.

See, e.g., Hoctor

U.S. Dep't of Agric.,

82 F.3d 165 (7th Cir. 1996).

None of these circumstances apply to the SAFE I Rule or this Proposal. In the Proposal, NHTSA, as the agency that promulgated the regulations in question in the SAFE I Rule (after notice-and-comment), expressed its

own

concern that it had issued legislative rules in excess of its authority, and acknowledged that the rules attempted

to impose substantive restrictions on regulated entities—namely, states and local jurisdictions.

In turn, the state and local governments that submitted comments overwhelmingly agreed with the Agency's characterization of its own rule. This sentiment was exemplified by a comment from California's South Coast Air Quality Management District, which directly expressed that “[t]he Preemption Rule has every indicium of being a legislative rule, which purported to change the legal rights and obligations of states by its action.”

As described in greater detail in Section II.B.ii. of this final rule, these commenters provided tangible examples of actual hardships those states feared would ensue from the extent to which the SAFE I Rule disrupted their state regulatory agendas and curtailed their previously understood federalism rights. These concerns make clear that, by and large, states and local jurisdictions considered the SAFE I Rule as more than simply interpretative guidance on an EPCA preemption restriction that already applied to them, but as a new regulatory measure that would serve to invalidate existing state programs and ones those entities hoped to formulate in the future.

CAFE Preemption NPRM, 86 FR at 25985 (“The Agency has tentatively determined that these regulations are legislative rules, which seek to preempt state regulations in more specific terms than the express preemption provision already present in EPCA.”).

South Coast Air Quality Management District, Docket No. NHTSA-2021-0030-0446 (June 11, 2021).

State of California et al., Docket No. NHTSA-2021-0030-0403 (describing the SAFE I Rule's disruption of state programs and reliance interests in established regulatory approaches).

This is an understandable expectation, as both NHTSA and EPA also contemporaneously treated the SAFE I Rule as binding and effectuating change. The SAFE I Rule even expressly described the rulemaking action as “

effectuating

Congress's goal.”

Similarly, commenters emphasizing this point also referenced language from the final rule preamble of the SAFE I Rule, in which the Agencies recognized that “ `certain States may need to work with EPA to revise their [State Implementation Plans] in light of this final action” to remove purportedly preempted standards.

In the SAFE I joint agency action, EPA also characterized NHTSA's preemption regulations as determinative, noting that “in light of NHTSA's determinations” on EPCA preemption, EPA's grant of a waiver for “California's program was invalid, null, and void.”

These characterizations help to demonstrate that the regulated community and the public could reasonably have expected that NHTSA's SAFE I Rule regulations presented mandatory and legally effective requirements.

NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51316 (Sept. 27, 2019) (emphasis added).

South Coast Air Quality Management District, Docket No. NHTSA-2021-0030-0446 (June 11, 2021) (quoting NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51324 (Sept. 27, 2019)).

NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51356 (Sept. 27, 2019).

This view was echoed by many other commenters who supported this Proposal.

Even commenters who opposed the current Proposal and argued that the SAFE I Rule was merely interpretative (or contended the distinction failed to matter), still treated the SAFE I Rule as a regulatory linchpin that was critical to keeping states and local jurisdictions from pursuing regulatory programs that they would otherwise undertake. For example, one commenter likened the repeal of the SAFE I Rule to a “dereliction” of NHTSA's duty, akin to permitting states to run amok in “lawlessness” in the absence of regulations and removing the sole bulwark to “California's impending balkanization,” all the while insisting that the “[t]he One National Program rules do not satisfy the intransitivity test for legislative rules” because their restrictions were present all along in Section 32919.

This concern, though, would only be valid if the SAFE I Rule were binding and not a mere interpretation. Thus, it becomes clear that, ultimately, all commenters—both supportive of and opposed to the Proposal—treat the SAFE I Rule as a sweeping measure, which was largely expected to bind regulated entities. In other words, as a legislative rule.

See, e.g.,

Center for Biological Diversity et al., Docket No. NHTSA-2021-0030-0369 (June 11, 2021).

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).

The SAFE I Rule, thus, was widely viewed as establishing new legal restrictions intended to broadly alter the pre-existing EPCA preemption landscape. As described in the Proposal, in the SAFE I Rule, NHTSA codified four provisions in the CFR, each of which purported to directly regulate the scope of preemption under EPCA. Specifically, NHTSA promulgated 49 CFR 531.7 and 533.7, both of which were nearly verbatim codifications of the statutory text, and an identical appendix B to both Parts 531 and 533, which included a description of certain state regulations also described as preempted. None of these provisions instituted any new compliance or enforcement standards relating to NHTSA's CAFE program. Instead, the provisions, by their own terms, solely sought to codify into NHTSA's regulations a binding framework to govern the scope of EPCA preemption.

As both the Proposal and many commenters pointed out, the imperative and mandatory language of the SAFE I Rule illustrates the degree to which the SAFE I Rule imposed demands upon regulated entities (and expected compliance) rather than helpfully advised them of a possible construction of pre-existing statutory language. As the Preamble to the SAFE I Final Rule described, these provisions sought to “ma[ke] explicit that state programs to limit or prohibit tailpipe GHG emissions or establish ZEV mandates are preempted.”

In announcing the SAFE I Rule, NHTSA repeatedly described the final rules in terms that appeared to confer upon them legally binding connotations. For instance, the Agency noted that through the final rule, “NHTSA intends to assert preemption”

and characterized the regulations as “implementing”

a preemption requirement. Subpart “a” of each appendix B to parts 531 and 533 even labels the regulatory text as “Express Preemption” provisions, before proceeding to categorically assert, in mandatory terms, what types of state laws were preempted.

NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310 (Sept. 27, 2019).

Id.

at 51317.

Id.

at 51318.

See, e.g.,

49 CFR part 533, app. B(a)(2) (“As a law or regulation of a State or a political subdivision of a State related to fuel economy standards, any state law or regulation regulating or prohibiting tailpipe carbon dioxide emissions from automobiles is expressly preempted under 49 U.S.C. 32919.”).

A few commenters sought to diminish the importance of such mandatory language, contending, for instance, that “nothing” would have practically changed had the Agency employed more permissive or advisory language in the SAFE I Rule instead of the imperative language used throughout both the codified text and preamble.

This argument's supposition is undermined by the numerous comments

from states and local jurisdictions—the entities to whom such language was primarily directed—who consistently made clear that they understood the Rule's regulations as constricting their activities rather than merely advising how Section 32919 may be applied at some indeterminate point in the future. Moreover, the Agency's own statements in the SAFE I Rule disprove this argument, as they reveal a definitive expectation that states would curb their actions in order to meet the newly demanded scope of preemption.

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021) (rhetorically asking “If the Agency had done this, what would change in the real world compared to what the Agency actually did? In a word, nothing.”).

See supra

nn.66-67.

More fundamentally though, discounting the importance of the Agency's own language in the precise rulemaking record in question too narrowly focuses the legislative rule inquiry. Even the cases cited by opposing commenters on this issue, such as

American Mining Congress

Mine Safety & Health Administration,

expressly recognized that all of the avenues and tests for distinguishing between legislative and interpretative rules are ultimately just different ways of asking whether “the agency intended to exercise” a delegated legislative power to promulgate rules that impose binding obligations with “legal effect.”

As noted above, this inquiry is much more straightforward in a situation, such as here, where the agency itself believes that this is the intent of the rule and undertook the notice-and-comment procedures required under the Administrative Procedure Act (APA) to issue legally binding regulations, without in any way implying that those steps were optional. For this reason,

American Mining Congress

underscored that despite any of the more complicated analyses that may apply when an agency disagrees on a rule's legislative status, the entire question is resolved if in the rulemaking the agency simply “choose[s] explicitly to invoke its general legislating authority.”

In such a case, the rule should be “presumably treat[ed] . . . as an attempted exercise of legislative power.”

995 F.2d 1106, 1109 (D.C. Cir. 1993) (“Our own decisions have often used similar language, inquiring whether the disputed rule has `the force of law'. We have said that a rule has such force only if Congress has delegated legislative power to the agency and if the agency intended to exercise that power in promulgating the rule.”) (internal citations omitted).

Id.

at 1111.

Id.

Here, the SAFE I Rule clearly—and explicitly—expressed an understanding that the new rules created legal obligations that would bind states and local jurisdictions, as described above. Moreover, even the mechanics of the SAFE I Rule's promulgation demonstrate NHTSA's awareness that it was codifying legislative rules that instituted legal requirements. Commenters defending the SAFE I Rule stressed that the rulemaking undertook all of the procedural steps required by the APA for a legislative (but not an interpretative) rule.

This procedural regularity only underscores the SAFE I Rule's intended legislative function, as it illustrates the lengths the Agency went to ensure that the regulations codified by the SAFE I Rule were procedurally defensible and binding.

Moreover, the SAFE I Rule was codified into NHTSA's own regulations in the Code of Federal Regulations (CFR)—a step that courts, including

American Mining Congress,

have often considered helpful in understanding the Agency's intent.

The Agency also does not view the requirements in the Appendices as somehow procedurally cured or automatically interpretations simply because they appear in appendices rather than separately numbered regulations. It is not uncommon for agencies, including NHTSA, to include regulatory requirements in appendices.

The appendices here continued that approach, with the facial language of the appendices codified in the CFR continuously invoking the same binding language described throughout this final rule.

See, e.g.,

National Automobile Dealers Association, Docket No. NHTSA-2021-0030-0435 (June 10, 2021) (“the regulatory language set out in the SAFE I Rule was adopted in full compliance with all applicable procedural requirements.”).

See Long Island Care at Home, Ltd.

Coke,

551 U.S. 158, 173 (2007) (describing how an agency's use of “full notice-and-comment rulemaking procedures” suggested the agency intended to promulgate a legislative rule). To be clear, the mere fact that an Agency requests comment on an action before finalizing it is not itself dispositive evidence that an action is a legislative rule, as there are many strong policy reasons for agencies to seek public input on documents beyond when they are expressly required to do so by statute. However, in those instances, the agency will generally make clear that the document at issue is an interpretation, policy statement, or other sort of guidance document, which stands in significant contrast to the approach taken in the SAFE I rulemaking.

Am. Min. Cong.,

995 F.2dat 1109 (“an agency seems likely to have intended a rule to be legislative if it has the rule published in the Code of Federal Regulations”). NHTSA recognizes that, as at least one commenter pointed out, some subsequent cases have deemed a rule interpretative even if published in the CFR.

See, e.g., Health Ins. Ass'n of Am., Inc.

Shalala,

23 F.3d 412, 423 (D.C. Cir. 1994). While such cases may indicate that a CFR publication is not dispositive of the issue, they do not eliminate the relevance of this step as a helpful piece of the larger puzzle of identifying the agency's intent to codify binding regulations.

See, e.g.,

49 CFR part 564, Appendices A-B (listing information required to be submitted to the Agency regarding certain replaceable light sources in motor vehicles).

Finally, a joint comment submitted by the Urban Air Initiative, among others, raised an issue that highlights one of the most telling aspects of the SAFE I Rule's legislative character.

Specifically, after arguing the Rule did not satisfy governing tests for legislative rules, the comment reached the ultimate conclusion that the legislative versus interpretative distinction was irrelevant to the SAFE I Rule's viability. The comment contended that, either way, the SAFE I Rule was a valid outgrowth of NHTSA's interpretative authority in administering EPCA and the CAFE program. To reach this conclusion, the comment focused at length on the concept of the “force of law” and the intransitivity test for legislative rulemaking, stressing that the SAFE I Rule embodied NHTSA's interpretative authority because it simply defined a pre-existing and already enforceable obligation set by Section 32919. And, in that sense, even if the SAFE I Rule's interpretation was binding, such a result was permissible as long as the APA's notice and comment procedures were followed. At least one other comment similarly remarked that whether the SAFE I Rule is legislative or interpretative “may not make much of a difference as a practical matter.”

The theme in such comments is a baseline assumption that the SAFE I Rule did not “itself impose[ ] federal regulatory preemption” because, they stress, Section 32919 already imposed a self-executing preemption requirement.

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).

National Automobile Dealers Association, Docket No. NHTSA-2021-0030-0435 (June 10, 2021).

See id.

Ultimately, the Agency believes such comments erroneously comingled the substantive question about the scope of EPCA's preemption requirements with the unrelated question of whether the SAFE I Rule's regulations sought to codify prescriptive requirements that implemented Section 32919 in a legislative manner. The Urban Air Initiative's joint comment characterized these questions as one and the same, arguing that as long as the substance of Section 32919 supported the preemption requirements promulgated in the SAFE I Rule, the legislative versus interpretative distinction was “irrelevant” because either way NHTSA was simply elucidating requirements that already existed under EPCA.

However, blending the substance and form in this way ignores a longstanding recognition that whether legislative rules validly prescribe conduct in a binding way is a distinct issue from whether the requirements those rules impose are consistent with either the underlying statute or regulation.

See

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).

Rather than comparing the substantive scope of the underlying statute and the agency's subsequent action, the legislative rule inquiry instead looks to the degree to which the standard announced by the agency went “beyond a process reasonably described as interpretation” by turning the original statutory standard into a rigid threshold that prescribed specific conduct.

In this sense, an agency performs a “legislative function” by applying a “value judgement[ ]” to a broader statutory framework and turning that judgment into a static requirement, which imposes a rigid threshold for compliance.

In such situations, the rule announced by the agency is legislative in that it forms a standalone requirement, which is no longer tied “to the animating standard” of the statute, but “stand[s] free of the standard” as it is “self-contained” and “unbending.”

Examples of these types of legislative rules span from a set of investment conditions fashioned from a general statutory standard of “reasonable costs”

to an agency's mathematical analysis that turned a statutory standard into a requirement that a fence meet specific dimensions.

While the nature or type of rule resulting from the legislative undertaking may vary, the focus of the inquiry is on the transformation of a statutory standard into a set of specifically enumerated rules that prescribe conduct.

See Hoctor

U.S. Dep't of Agric.,

82 F.3d 165, 170 (7th Cir. 1996).

Id.

at 171.

See Cath. Health Initiatives

Sebelius,

617 F.3d 490, 496 (D.C. Cir. 2010).

See generally Hoctor,

82 F.3d 165.

Importantly, this legislative rule inquiry is wholly distinct from the question about whether the legislative rules would be a permissible reading of the underlying statute or regulation. In fact, courts conducting these analyses often expressly make clear that the legislative rule determination does not require them to reach the question of whether those rules would have been subsumed within the respective scopes of the statutes or any other existing regulations that the agencies had already promulgated. For instance, through this legislative rule inquiry “[w]e may assume, without deciding, that the [requirements] are an extension” of the statute and “consistent” with existing regulatory provisions.

Even so, “neither assumption leads to the conclusion that the [requirements] represent an interpretation.”

Instead, what matters is whether the agency performs merely an act of interpretation or instead operates in an essentially legislative capacity by crystallizing a broader statutory standard into specific prescriptive requirements.

Id.

Applying this same framework, even assuming for purposes of discussion (like those courts) that the SAFE I Rule's regulations imposed a substantive obligation that was consistent with the “related to” standard in Section 32919, the regulations still undeniably prescribed conduct in a way that was legislative rather than interpretative. Specifically, the SAFE I Rule's regulations turned the baseline standard of Section 32919, “related to,” into an entire list of specifically enumerated conduct that created a prescriptive threshold for EPCA preemption.

Under Section 32919, “a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under [Chapter 329].”

This statutory framework contains a general standard by which to evaluate the application of EPCA preemption: “related to.” In the SAFE I Rule, NHTSA applied a “value judgment”

to this statutory standard by undertaking what the Rule called a “scientific” and “mathematical” evaluation of fuel economy and emissions concepts.

Through this endeavor, the SAFE I Rule fashioned a set of highly prescriptive requirements that precisely and rigidly dictated when a state or local jurisdiction's program “related to” fuel economy standards for purposes of EPCA. For the question of whether the rule was legislative or interpretive, it is wholly irrelevant to determine whether those prescriptive requirements were reasonable understandings of the “related to” statutory standard. All that matters for the legislative rule analysis is that, once codified, the regulations from the SAFE I Rule served as standalone standards for EPCA preemption. The SAFE I Rule extrapolated from the original statutory standard and articulated express prohibitions which, once codified, were intended to and capable of fully controlling the preemption analysis in lieu of the original statutory language.

49 U.S.C. 32919(a).

Hoctor,

82 F.3d at 170.

NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51319-20 (Sept. 27, 2019) (“The foundational factual analysis involves the scientific relationship between automobile fuel economy and automobile tailpipe emissions of carbon dioxide. NHTSA discussed this scientific relationship in detail.”).

See

49 CFR part 531, Appendix B(a)(E)(3).

For example, Appendix B to Parts 531 and 533 expressly declares the preemption of “any law or regulation of a State or a political subdivision of a State”

solely

based on the fact that the program in question “ha[s] the direct or substantial effect of regulating or prohibiting tailpipe carbon dioxide emissions from automobiles.”

A similar standard is repeated multiple times in the SAFE I Rule's regulations, with subsection (a)(E)(2) also flatly preempting “any law or regulation” that “regulates or prohibits tailpipe carbon dioxide emissions automobiles,”

and subsection (b) codifying identical categorical thresholds for “implied preemption.”

100

These categorical thresholds represent NHTSA's “scientific” and “mathematical” judgment in the SAFE I Rule as to how EPCA's animating “related to” standard would look as a prescriptive requirement. But in the SAFE I Rule, NHTSA went beyond just providing guidance about how NHTSA's views on the subject should inform a state or local jurisdiction who wished to understand how their program might fit within EPCA's “related to” standard. Instead, NHTSA announced those positions in the form of regulations of general applicability that formed their own regulatory standards. These new regulations were “self-contained” and “unbending” in that any programs that satisfied the strict regulatory text were now labeled as conclusively preempted by NHTSA. And, this approach prevented a more careful analysis of whether it is possible that any state or local standard that met the static preemption threshold imposed by these regulations may not actually “relate to” fuel economy for any particular reason (such as perhaps the fact-specific variables foreclosed from consideration as described below in Section II.B.ii.). In this sense, once in place, the SAFE I Rule's regulations were intended to functionally replace the EPCA preemption language in any analysis of whether a particular program was preempted, without a need to reference

the original statutory text or underlying caselaw.

101

The SAFE I Rule even acknowledges the standalone nature of the new regulations, explaining that the codified “regulations are

operable

without regard to any specific Federal standards and requirements . . . or other parts of the Code of Federal Regulations.”

102

Id.

49 CFR 531.7(a)(E)(2).

100

49 CFR 531.7(b).

101

NHTSA stresses that it is not necessary to substantively determine whether “related to” could be properly interpreted to include these concepts in order to reach this point, nor does the Agency make such a determination here. What matters is that, once codified, the regulation now forms the operative standard, which purports to be legally binding and capable of standalone application. In that sense, the regulation functions as a legislative rule, which requires legislative rulemaking authority to promulgate, no matter how proper or improper the substantive content of the rule may be.

102

NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51315 (Sept. 27, 2019) (explaining how the SAFE I Rule was a standalone rulemaking action that did not need to accompany a CAFE standards rulemaking) (emphasis added).

While Section II.B.ii. below explains how this inflexible standard inappropriately precludes individualized considerations, the self-contained nature of the standard also demonstrates how the SAFE I Rule's regulations operate as prohibitions that turn a broader statutory standard into a set of rules that states and local jurisdictions must follow. This process of fashioning a set of specific and prescriptive requirements out of an underlying statutory standard involves a legislative function of the agency and the rules that emerged from this process are legislative in nature. And the law is clear that an agency may prescribe conduct and issue such legislative rules only if provided the authority to do so by Congress.

103

EPCA provides NHTSA with no such authority.

103

See, e.g., Louisiana Pub. Serv. Comm'n

F.C.C.,

476 U.S. 355, 374 (1986).

2. EPCA Did Not Authorize NHTSA To Expressly Establish New EPCA Preemption Requirements

Once the SAFE I Rule's regulations are properly understood as seeking to impose binding legal requirements, it becomes clear that the Rule is premised on the need for NHTSA to possess the requisite authority to validly set such mandates. The Proposal generated a number of comments on this authority issue. A large number of those comments agreed with the Proposal's concerns about a lack of authority for the rulemaking, while several commenters defended the legitimacy of the Rule. But while these comments may have disagreed on the existence of authority or the extent to which NHTSA's authorities extended, they did not generally dispute the Proposal's recognition of the fundamental principle that an agency must possess authority to issue legislative rules.

As the Proposal explained, the regulatory authority of federal agencies extends only insofar as Congress permits.

104

Consequently, an agency “may act only when and how Congress lets [it].”

105

These restrictions extend to all aspects of an agency's regulatory activity—including a rulemaking and ultimately derive from Congress.

106

As such, the matters upon which an agency may promulgate rules imbued with the force and effect of law depend upon the extent to which the Agency has the appropriate statutory authority.

107

104

Ry. Labor Executives' Ass'n

Nat'l Mediation Bd.,

29 F.3d 655, 670 (D.C. Cir. 1994) (en banc) (stressing that “[a]gencies owe their capacity to act to the delegation of authority, either express or implied, from the legislature”).

105

Cent. United Life Ins. Co.

Burwell,

827 F.3d 70, 73 (D.C. Cir. 2016).

106

Id.

107

See, e.g., Adams Fruit Co.

Barrett,

494 U.S. 638, 650 (1990) (determining that a Department of Labor regulation exceeded the scope of authority delegated by a statute the agency administered).

Ultimately, as the Proposal expressed, since an agency lacks plenary authority, the delegation of one power to an agency does not necessarily include other powers, even if they are related.

108

This applies even when the authority is analogous. For instance, the D.C. Circuit has rejected an agency's argument “that it possesses plenary authority,” holding instead “that the fact that the Board is empowered” in a particular circumstance does not “mean[ ] the Board therefore enjoys such power in every instance” in which a similar question arises.

109

Accordingly, construing an agency's authority requires a close examination of the precise power delegated by Congress and how such authority may differ, even if slightly, from other authority that Congress may reserve.

108

Ry. Labor Executives' Ass'n.,

29 F.3d at 670 (en banc).

109

Id.

The need for sufficient authority does not fade when an agency seeks to promulgate regulations expressly dictating preemption. In fact, as the Proposal expressed, the legitimacy of an agency's exercise of preemption power through legislative rulemaking is principally a question of the extent of authority delegated to the agency. As such, “in a situation where state law is claimed to be pre-empted by Federal regulation, a narrow focus on Congress' intent to supersede state law [is] misdirected.”

110

Instead, when considering an agency's preemptive authority, “the inquiry becomes whether the federal agency has properly exercised its own delegated authority rather than simply whether Congress has properly exercised the legislative power.”

111

An agency must draw preemption authority from definitive sources, as the governing framework “does not create preemption authority out of thin air.”

112

As the Supreme Court has made clear:

110

City of New York

F.C.C.,

486 U.S. 57, 64 (1988).

111

Id.

112

See, e.g., Mozilla Corp.

FCC,

940 F.3d 1, 78 (D.C. Cir. 2019) (determining that neither express nor ancillary authority nor other doctrines, such as the impossibility exception, could justify the FCC's assertion of preemption authority for a particular action).

a federal agency may pre-empt state law only when and if it is acting within the scope of its congressionally delegated authority. This is true for at least two reasons. First, an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it. Second, the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency.

113

Louisiana Pub. Serv. Comm'n,

476 U.S. at 374.

In response to the Proposal, many commenters repeatedly expressed a concern that NHTSA lacked the authority for the SAFE I Rule.

114

In most cases, these comments echoed rationales expressed in the Proposal for why such authority was lacking.

115

Accordingly,

many of them also read Section 32919 as silent on any role for NHTSA in further dictating the scope of EPCA preemption,

116

understood Section 32919's self-executing nature as actually foreclosing regulations that dictate additional express preemption requirements,

117

and viewed general delegations of authority to the Secretary of Transportation insufficient to support such a sweeping act of preemption.

118

114

Center for Biological Diversity et al., Docket No. NHTSA-2021-0030-0369 (June 11, 2021); State of California et al., Docket No. NHTSA-2021-0030-0403 (June 11, 2021); South Coast Air Quality Management District, Docket No. NHTSA-2021-0030-0446; National Association of Clean Air Agencies (NACAA), Docket No. NHTSA-2021-0030-0140 (June 10, 2021); Maine Department of Environmental Protection, Docket No. NHTSA-2021-0030-0249 (June 10, 2021); Tesla, Inc. Docket No. NHTSA-2021-0030-0398 (June 11, 2021); Nevada Division of Environmental Protection, Docket No. NHTSA-2021-0030-0362 (June 11, 2021).

115

A few comments go further and suggest that NHTSA not only lacks legislative authority with respect to EPCA preemption, but interpretative authority as well.

See, e.g.,

Northeast States for Coordinated Air Use Management, Docket No. NHTSA-2021-0030-0300 (June 11, 2021) (noting that “the agency lacks statutory authority to define the scope of EPCA preemption through legislative

or interpretative rules”

) (emphasis added). In response, NHTSA stresses that it continues to believe that the Agency may offer interpretations or guidance as to its views. To be sure, NHTSA does not agree with other commenters who argue that this interpretative authority equates to the ability to issue binding interpretations.

See

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021). But the Agency nevertheless maintains the view expressed in the Proposal that NHTSA may properly announce interpretative views about matters of EPCA preemption if so desired.

See

CAFE Preemption NPRM, 86 FR at

25988 (“While NHTSA still retains interpretative authority to set forth its advisory views on whether a state regulation impermissibly conflicts with Federal law, such authority does not support the power to codify binding legislative rules on the matter.”).

116

See, e.g.,

Center for Biological Diversity et al., Docket No. NHTSA-2021-0030-0369 (June 11, 2021) (stressing that Section 32919 “does not mention the Secretary or contemplate Federal regulations `to carry out' congressional intent to preempt State and local laws.”).

117

See, e.g.,

National Coalition for Advanced Transportation, Docket No. NHTSA-2021-0030-0310 (June 11, 2021).

118

See, e.g.,

Emmett Institute on Climate Change and the Environment, Docket No. NHTSA-2021-0030-0218 (June 10, 2021) (“NHTSA also lacked the ancillary authority to adopt the 2019 Rule.”).

These comments reinforce the Proposal's substantial doubts about NHTSA's authority to promulgate the SAFE I Rules, which the Agency crystalizes in this final rule into a firm conclusion that the requisite authority does not exist. The lack of legal authority is most clearly illustrated by the inadequacy of the two grounds articulated by the SAFE I Rule (and comments who supported that position here) for the proposition that NHTSA enjoys authority to promulgate the regulations: (1) The general rulemaking authority of the Secretary of Transportation; and (2) more generalized inferences from the spirit of EPCA. The Agency finalizes its view that neither of these grounds suffices.

a. No Direct Statutory Authority Enables NHTSA To Promulgate the SAFE I Rule

First, NHTSA finalizes the view expressed in the Proposal that no direct statutory source exists for the Agency to derive authority to conduct the SAFE I rulemaking. In this respect, NHTSA focuses, in particular, on the two statutory provisions that commenters supporting the SAFE I Rule especially relied upon to argue that such authority existed: 49 U.S.C. 322 and 49 U.S.C. 32919. Neither of these provisions enables a legislative rulemaking action to establish new binding preemption requirements.

This analysis starts with Section 322 because that is the only source of statutory authority invoked in the SAFE I Rule. Notably, even though EPCA speaks directly to the fuel economy preemption issue in Section 32919, in the SAFE I rulemaking, NHTSA did not invoke Section 32919 to claim the authority to issue preemption regulations.

119

Instead, NHTSA claimed authority based on the Secretary of Transportation's “general powers” under Section 322 to “carry out” all responsibilities across the entire Department of Transportation. NHTSA argued at the time that this authority was sufficient because the Agency could not carry out its CAFE standard-setting responsibilities in the face of state regulation that undermined its authority.

120

In the SAFE I Final Rule's most direct discussion of the issue of authority to promulgate regulations concerning preemption, NHTSA linked the perceived conflict between EPCA's purposes and state regulation to the general delegation of authority to the Secretary to carry out his duties. Specifically, after describing Section 322 as an express authorization for the Secretary of Transportation “to prescribe regulations to carry out her duties and powers,” and noting that Chapter 329 of Title 49 delegated the Secretary's authority to NHTSA for EPCA purposes, the Agency concluded in the SAFE I Rule that it “ha[d] clear authority to issue this regulation under 49 U.S.C. 32901 through 32903 to effectuate a national automobile fuel economy program unimpeded by prohibited State and local requirements.”

121

This is because in the SAFE I Rule the Agency characterized that rulemaking as simply “carry[ing] out” the preemption scope of Section 32919.

122

119

See generally

NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51320 (Sept. 27, 2019).

120

See, e.g., id.

at 51317.

121

Id.

at 51320.

122

Id.

NHTSA concludes that the general authority for the Secretary to “carry out” his responsibilities across the entire Department of Transportation cannot supplant the otherwise strong indication that legally binding regulations on EPCA preemption exceed the scope of the Agency's authority. Nothing in the comments undermines the Proposal's straightforward recognition that Section 322 contains statutory language of broad applicability that extends well beyond the CAFE program and, indeed, well beyond NHTSA. It continues to seem especially peculiar to derive preemption authority from Section 322 when EPCA already contains an express preemption provision, which does not provide NHTSA with a role in further defining that preemption with the force and effect of law. Since Congress already crafted a specific provision to describe EPCA preemption in Section 32919, the more general terms of Section 322 would seem of much clearer applicability if Section 32919 had otherwise delegated NHTSA certain authorities or responsibilities to carry out. But as discussed below, Congress did not, in EPCA, appear to charge NHTSA with any authority or responsibility with respect to preemption regulations. Construing Section 322's general terms to independently provide NHTSA with the authority to issue legislative rules on EPCA preemption that override Section 32919's notable silence as to any role for NHTSA would require an extraordinarily expansive reading of Section 322, which neither Section 322 nor EPCA could support.

Moreover, inserting Section 322 into EPCA in such a manner would require a strained reading of EPCA, which contradicts the specific approach Congress consistently employed throughout EPCA to provide authority to the various agencies targeted by the statute. Unlike some other enactments, which are primarily aimed at enabling a particular agency or creating a specific program, EPCA sought to establish an interagency framework for energy independence, which spanned a host of agencies and their respective jurisdictions. For instance, at various points, Congress directs portions of EPCA to a variety of agencies, including but not limited to the Department of Transportation, the Environmental Protection Agency, the Department of Justice, the Federal Trade Commission, the Federal Maritime Commission,

123

and the Federal Power Commission.

124

Consistent with this approach, the facial language of EPCA tends to clearly state when and where Congress intended to galvanize an agency into acting on a particular provision. For instance, even just taking a few non-exhaustive examples from the original language of the specific section of EPCA dedicated to automotive fuel economy:

123

See generally

The Energy Policy and Conservation Act of 1975, Public Law 94-163, 89 Stat. 871.

124

Id.

• Section 501(1) specifies that “[t]he Secretary may prescribe such rules as may be necessary to implement this paragraph,” which concerns the definitions of an automobile.

125

Id.

§ 501(1) (“The term `automobile' means . . .”).

• Section 501(2) links the term passenger automobile to that “which the Secretary determines by rule.”

126

Id.

§ 501(2) (“The term `passenger automobile' means . . .”).

• Section 502 describes the circumstances, in detail, by which “the Secretary shall prescribe, by rule, average fuel economy standards.”

127

Id.

§ 502 (“Average Fuel Economy Standards Applicable to Each Manufacturer”).

• Section 505(a)(3) requires that “the Secretary shall prescribe rules setting forth the form and content of the reports required under” the Section.

128

Id.

§ 505(a)(3).

• Section 505(b)(1) describes the specific actions that the Secretary of Transportation and the EPA Administrator may take, such as conducting hearings, “for the purpose of carrying out the provision of this part.”

129

Id.

§ 505(b)(1).

• Section 506(a)(3) requires that “the form and content” of labeling requirements “shall be prescribed by the EPA Administrator by rule.”

130

Id.

§ 506(a)(3).

• Section 508(a)(3)(D) permits that “the Secretary may prescribe rules for purposes of carrying the provisions of this paragraph,” which pertains to civil penalties.

131

Id.

§ 508(a)(3)(D).

The remainder of EPCA is replete with similar examples of Congress specifically—

and expressly

—speaking to the ability or need for the agencies to implement its provisions through a variety of regulatory actions. In contrast, as noted by both the Proposal and certain commenters, Section 32919 (originally Section 509 of EPCA) is notably silent as to any role of the agency in administering—much less defining—a preemption scheme. This is despite other preemption provisions in EPCA continuing Congress' general trend throughout the statute of more specifically enumerating the role of the agency when contemplating further agency implementation. For instance, as the Proposal noted, the structures of other parts of EPCA expressly charge an agency to administer preemption through regulations, and no such charge exists for NHTSA. For example, a precursor to the Department of Energy, the Federal Energy Administration, was expressly directed elsewhere in EPCA to “prescribe . . . rule[s]” that preempt state and local appliance energy conservation standards.

132

See

42 U.S.C. 6297.

This is also consistent with the manner in which Congress has provided preemption authority to the Department of Transportation in other contexts. The Proposal identified several of such examples, recognizing that, other DOT statutes expressly provide a regulatory, or even adjudicatory, role for the Department in the preemption analysis. For instance, in the transportation of hazardous materials context, 49 U.S.C. 5125 directs the Secretary to adjudicate applications on whether a particular state standard is “substantially the same” as Federal law and, as such, exempted from statutory preemption.

133

Similarly, 49 U.S.C. 31141 establishes a very detailed role for DOT in reviewing and preempting state law pertaining to commercial motor vehicle safety.

134

Many of the seminal cases in the Supreme Court's preemption jurisprudence also concerned statutory schemes that expressly delegated preemption authorities to the agencies in question.

135

133

See

49 U.S.C. 5125(d) (The Secretary has delegated this responsibility to another DOT operating administration, the Pipeline and Hazardous Materials Safety Administration (PHMSA)).

134

See 49 U.S.C. 31141 (expressly stating that “[a] State may not enforce a State law or regulation on commercial motor vehicle safety that the Secretary of Transportation decides under this section may not be enforced” before enumerating multiple subsections that define an adjudicatory role for the DOT, complete with preemption standards and procedures). The Secretary has delegated this responsibility to another DOT operating administration, the Federal Motor Carrier Safety Administration (FMCSA).

135

For example, in a set of cases evaluating the preemption of certain state tort law relating to medical device product liability, the Supreme Court analyzed U.S. Food and Drug Administration (FDA) regulations that specifically defined when preemption occurred under the applicable statute, the Medical Device Amendments (MDA).

See generally Medtronic, Inc.

Lohr,

518 U.S. 470 (1996) (plurality opinion);

Riegel

Medtronic, Inc.,

552 U.S. 312 (2008).

See also

21 U.S.C. 360k; 21 CFR 808.1.

A few comments disputed the salience of these other preemption examples, with a joint comment submitted by CEI especially delving into the particulars of these preemption schemes. After analyzing each of these preemption statutes in turn, CEI concluded that those statutory preemption provisions in which Congress explicitly prescribed an agency's role all “have one thing in common:” A limited preemption scope that necessitates an agency's subsequent involvement, oftentimes through adjudication, to “fine tune the scope of preemption.”

136

CEI's joint comment stressed that, in contrast, Section 32919's silence as to any role for NHTSA was simply “a reflection of the preemption's absoluteness.”

137

In doing so though, CEI's comment demonstrates a critical difference in Section 32919 and these other statutory preemption provisions. In those other statutory preemption provisions analyzed by CEI's comment, Congress indisputably enumerated a preemption framework in which the agency in question played an active role in legally determining how statutory preemption applied to particular states and programs. In contrast, Section 32919 enumerates no such role for DOT or NHTSA, nor does it even leave room for subsequent implementation by the Agency. Instead, the self-executing terms of Section 32919 demonstrate that Congress intended the provision to operate without any ensuing requirements or legal determinations imposed by the Agency. Through its codification of new prescriptive requirements on EPCA preemption, the SAFE I Rule involved NHTSA taking the type of subsequent agency action not intended by Congress. Reading Section 32919 to permit NHTSA to promulgate binding regulations on EPCA requires an acceptance that NHTSA may authoritatively determine the reach of the self-executing (and legally self-sufficient) obligations stemming from the statute. But as CEI's comment highlights, Section 32919 seems to clearly

not

want the Agency to “fine tune” the legal mechanics of EPCA's preemptive scope.

138

But that is exactly what the power to issue legislative rules under Section 32919 would allow.

136

Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

137

Id.

138

Id.

CEI's comment also argues that the examples from those other statutory provisions cannot inform this rulemaking because in those enactments Congress contemplated an adjudicatory role for the agencies rather than the rulemaking action undertaken in the SAFE I Rule. NHTSA does not believe this distinction negates the comparative value of those provisions. Of course, the SAFE I Rule was a generally applicable rule, not an adjudication or even simply an administrative enforcement action against any particular party. Even so, the preemption statutes described both in the NPRM and herein remain relevant comparisons even when they provide adjudicatory rather than rulemaking roles for an agency. In either case, the Agency is still exercising a core administrative decision-making function to implement the preemption statute in a legally binding way—adjudication just does that on a case-by-case basis whereas a rulemaking does

that all at once.

139

In both cases, the question remains whether Congress intended the agency to further implement the statutory preemption scheme through legally enforceable agency action. The other statutory examples demonstrate that when Congress so intends agency implementation, the statutes in question facially articulate that role clearly and discernably in the text.

139

See, e.g. SEC

Chenery Corp.,

332 U.S. 194 (1947) (discussing overlap between the adjudicatory and rulemaking functions of an agency).

To the extent the differences in rulemaking and adjudication are pertinent to today's rulemaking, such differences only further support NHTSA's conclusions. For instance, CEI's comment stresses that these other statutory examples only articulate a role for agencies because “subsequent regulatory adjudication” is needed to implement their preemption frameworks (in contrast to Section 32919, which CEI characterizes as “clear”).

140

However, even assuming CEI's premise is true, this only further supports the Proposal's conclusion by suggesting that adjudication—

not rulemaking

—was Congress' preferred method to statutorily engraft an agency into the legal process of formulating the scope of an express preemption provision. If so, the SAFE I Rule's attempt to use rulemaking to legally affect EPCA's preemptive scope appears even further from the scheme intended by Congress. Ultimately, no matter how these provisions are read, it is undeniable that Section 32919 stands apart from other statutory preemption schemes in which the agency is charged with a more active role in setting the scope of preemption in a legally binding way.

140

See

Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

Commenters' other efforts to explain away Section 32919's silence are similarly unavailing. In particular, CEI's joint comment proffers two “alternative explanations” for the statute's silence. In the first, the comment argues that in enacting EPCA, Congress was simply naïve, unable “in 1975 to anticipate the brazenness of 21st century `climate ambition,' ” so presumably unaware of what CEI deems an eventual need for NHTSA to legally intercede on EPCA preemption.

141

However, this fails to account for the fact that the preemption provision of EPCA has been the subject of litigation for decades and, thus, questions about its scope are not new, even if the specific aspects of this issue change over time. Despite this, Congress has not materially changed the statutory language governing EPCA preemption, with the current language in Section 32919 remaining substantially the same as the language originally enacted in Section 509 of EPCA. Further, even if the recent actions by California and other states are somehow different than earlier preemption questions, it would not change what authority EPCA, as it is currently enacted, provides NHTSA.

141

Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

Moreover, CEI's comment suggests that Congress perhaps intentionally eschewed a more precise description of delegated authority, preferring instead to tacitly provide authority through silence to avoid “foster[ing] confusion and uncertainty.” This position is both counterintuitive and disproved by EPCA's express text. First, it strains credulity to read EPCA's silence as Congress' concerted effort to still provide authority to the agency, but just in a more clear and unambiguous way than if it had done so expressly. As the rest of EPCA demonstrates, Congress understood how to carve out a legal role for an agency in a multitude of matters, including preemption, even when that role involved a complicated adjudicatory scheme. Moreover, since an agency's rulemaking actions must always fall within the scope of statutory authority, if Congress had any concerns about how that authority could be misapplied, it could have easily enacted language that set the parameters for any implementing agency regulations (as it did in Section 327 of EPCA).

142

As such, there is no reason to believe that Congress would have suddenly become wary of precisely describing such authority when it reached Section 32919. And a construction that requires such a leap does not offer the most reasonable reading of the statute.

142

See

The Energy Policy and Conservation Act of 1975, Public Law 94-163, 89 Stat. 871, section 327(b), recodified as amended at 42 U.S.C. 6297(d).

Finally, at least one other commenter sought to diminish this contrast in statutory approaches by focusing not on the actual statutory language in question, but instead, on the legal doctrines underpinning administrative law. Specifically, a joint comment by the Urban Air Initiative argued at length that the Proposal's doubts about the delegation of statutory authority for the SAFE I Rule contradicted the Supreme Court's application of administrative law principles in

City of Arlington

FCC.

143

The comment presented

City of Arlington

for the proposition that since NHTSA administers the broader CAFE program and Section 32919 does not expressly prohibit the Agency from promulgating implementing regulations on EPCA preemption, the silence of Section 32919 should not serve as a barrier to NHTSA's SAFE I rulemaking authority.

144

As such, the comment concluded that the Proposal's approach would too finely parse an agency's authority on a provision-by-provision basis and undertake an unmanageably granular review of authority for federal administrative agencies.

143

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021) (discussing 569 U.S. 290 (2013)).

144

Id.

NHTSA views this concern as unfounded and depending upon a protracted reading of

City of Arlington.

City of Arlington,

the Supreme Court reviewed a declaratory ruling by the Federal Communications Commission, which contained the agency's interpretation and subsequent implementation of its own regulatory jurisdiction under the Telecommunications Act of 1996.

145

The question presented in the case was “[w]hether . . . a court should apply

Chevron

to . . . an agency's determination of its own jurisdiction.”

146

The Court ultimately held that

Chevron

deference should apply because, at their core, all agency constructions of a statute present jurisdictional issues.

147

This is because, the majority reasoned, agencies are always bound by statute, which renders any departure from a statute's intended scope or meaning also a transcendence of the agency's jurisdiction.

148

145

See generally City of Arlington, Tex.

F.C.C.,

569 U.S. 290 (2013).

146

Id.

at 295 (ellipses in original).

147

Id.

148

Id.

at 299-300.

The Urban Air Initiative's joint comment contends that, in light of

City of Arlington,

the Proposal's focus on whether Section 32919 confers rulemaking authority is an “empty distraction” and demonstrative of an overly burdensome undertaking that too narrowly searches for questions of authority or agency jurisdiction.

149

Read properly though,

City of Arlington

actually underscored the appropriateness of the Agency's concern about its own authority. The Urban Air Initiative's comment advances

City of Arlington

to argue that NHTSA need not worry about its statutory authority because no special class of jurisdictional questions exists. But the

City of Arlington

majority made clear that this is only because

all

questions about an agency's actions are jurisdictional. At base,

City of Arlington's

holding illustrates the exact point repeated

throughout this rulemaking: because agencies have no plenary jurisdiction, agencies' “power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.”

150

As a result, any time the agency implements a statute the question “is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as `jurisdictional.' ”

151

This is even apparent when the Court's phrase of “empty distraction” is read in its full context: “The [jurisdictional] label is an

empty distraction

because every new application of a broad statutory term can be reframed as a questionable extension of the agency's jurisdiction.”

152

Consequently, far from ignoring this precedent as the comment claims, NHTSA views this rulemaking as conducting the precise analysis contemplated by the Court—ensuring that its regulatory activities conform to their governing statutory authorities.

153

149

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).

150

City of Arlington, Tex.,

569 U.S. at 297-98.

151

Id.

152

Id.

at 300 (emphasis added).

153

Similarly, the joint comment submitted by the Urban Air Initiative argues that because these issues are irrelevant, NHTSA is simply manufacturing issues to conceal the “political pretext” for a repeal of the SAFE I Rule.

See

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021). But this contradicts the authorities cited here, which encourage an agency to closely assess its statutory authority, as NHTSA is doing in this rulemaking. These commenters may disagree with NHTSA's ultimate conclusions in this rulemaking, but dismissing the concerns surrounding the SAFE I Rule as merely “pretextual” ignores the litany of legitimate issues articulated in this rulemaking, as well as the substantial number of thoughtful comments expressing additional concerns about the SAFE I Rule.

Moreover, even the broader holding of

City of Arlington

supports NHTSA's conclusions in this rulemaking. The Court's ultimate holding in the case is that, because all questions are essentially jurisdictional, an agency should be entitled to

Chevron

deference when construing the scope of its statutory authority, even when those questions concern the subjects on which an agency may regulate.

154

The

Chevron

doctrine is, of course, a multi-dimensional analysis, and thus deference to a reasonable interpretation only arises in the first place if the statutory language is ambiguous.

155

Here, NHTSA views the lack of rulemaking authority as a clear and unambiguous reading of Section 32919, for all of the reasons described herein. However, even if Section 32919 were considered to be ambiguous on the existence of authority, as several commenters contended, the

City of Arlington

framework stressed by those commenters still supports extending deference to NHTSA for its determination in this repeal that the Agency lacked authority to promulgate the SAFE I Rule. In fact, if such an ambiguity were deemed to exist, that is the precise type of determination for which

City of Arlington

made clear deference should apply: “[t]he question here is whether a court must defer under

Chevron

to an agency's interpretation of a statutory ambiguity that concerns the scope of the agency's statutory authority (that is, its jurisdiction).”

156

154

City of Arlington, Tex.,

569 U.S. at 297-98.

155

See generally Chevron, U.S.A., Inc.,

467 U.S. 837.

156

City of Arlington, Tex.,

569 U.S. at 296-97.

Similarly,

Chevron

also does not support a claim that the SAFE I Rule was tacitly authorized in order “to fill any gap left” by Congress in Section 32919's statutory scheme.

157

Chevron

and its progeny recognize that, in some instances, statutory ambiguities or “gaps” in statutory frameworks indicate that Congress contemplated an agency acting in order to resolve such ambiguities.

158

In these situations, an incomplete statutory scheme raises the possibility that Congress “implicitly or explicitly” intended the agency to step in and undertake rulemaking to provide the missing pieces and enable the statute's administration.

159

However, as described throughout this reconsideration, EPCA and Section 32919 clearly demonstrate that Congress did not intend for NHTSA to further implement or administer Section 32919.

157

See

NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51351 (Sept. 27, 2019) (quoting

Chevron,

467 U.S. at 843).

158

See, e.g., Chevron,

467 U.S. at 843.

159

Id.

This is evident because, as the Proposal recognized, both the Agency and courts have repeatedly understood Section 32919 as self-executing and capable of direct application to state regulatory activity.

160

Specifically, such a direct application involves the consideration of whether the state regulation in question “relate[s] to” fuel economy standards established elsewhere in Chapter 329.

161

The statute does not require any supplemental agency regulations to implement this standard, nor does the text and structure of the statute appear to provide NHTSA any special legislative role in dictating the scope of Section 32919's preemption. This view is consistent with NHTSA's longstanding reading of Section 32919. For instance, even the Preamble to the SAFE I Final Rule acknowledged that the EPCA preemption provision of Section 32919 was “self-executing,” asserting that “state or local requirements related to fuel economy standards are void ab initio”—by operation of statute not regulation.

162

Likewise, in the NEPA section of the SAFE I Rule, NHTSA expressly disclaimed any discretion to alter the preemption paradigm established by Section 32919 due to the self-sufficiency of the statute, stressing that “[a]ny preemptive effect resulting from this final action is not the result of the exercise of Agency discretion, but rather reflects the operation and application of the Federal statute.”

163

As such, the Agency again characterized any “preempted standards [as] void ab initio” due to the non-discretionary and independent application of Section 32919.

164

160

See, e.g., Green Mountain Chrysler Plymouth Dodge Jeep

Crombie,

508 F. Supp. 2d 295 (D. Vt. 2007) (undertaking a detailed analysis of Section 32919 to determine whether state law was preempted under the express language of the statute).

161

See Cent. Valley Chrysler-Jeep, Inc.

Goldstene,

529 F. Supp. 2d 1151, 1175 (E.D. Cal. 2007), as corrected (Mar. 26, 2008) (conducting such an analysis before concluding that preemption did not exist “[g]iven the narrow scope the court must accord EPCA's `related to' language”).

162

NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51325 (Sept. 27, 2019).

163

Id.

at 51353-54.

164

Id.

The self-executing nature of Section 32919 formed one of the most widely agreed-upon propositions in the Proposal. Commenters on all sides of the issue expressly confirmed their own understanding of Section 32919 as self-executing and capable of direct enforcement and application against preempted programs. For instance, commenters in support of the Proposal expressly agreed that “[i]n the absence of the Preemption Rule, any state law or regulation `relating to fuel economy standards' can be challenged in a proper case, allowing for full evaluation of both the state law and the express statutory preemption in Section 32919,”

165

that “implementing EPCA Section 32919” does not require any NHTSA regulations,

166

and that “[c]ourts have likewise treated the EPCA preemption language as self-executing as they have applied this language to particular circumstances to determine whether a

state or local government action is or is not preempted.”

167

Similarly, commenters that otherwise more neutrally commented on other aspects of the Proposal still explicitly endorsed Section 32919's self-executing status.

168

And commenters opposing the Proposal nonetheless still stressed that they “agree that the statute is self-executing and that any state regulation that is `related to fuel economy' is preempted and void ab initio.”

169

For this reason, even opposition commenters stated that “[c]onsequently, the SAFE I Rule's regulatory language is not essential to effectuate” EPCA preemption.

170

165

South Coast Air Quality Management District, Docket No. NHTSA-2021-0030-0446 (June 11, 2021).

166

Tesla, Inc. Docket No. NHTSA-2021-0030-0398 (June 11, 2021).

167

National Coalition for Advanced Transportation, Docket No. NHTSA-2021-0030-0310 (June 11, 2021).

168

Alliance for Automotive Innovation, Docket No. NHTSA-2021-0030-0400 (June 11, 2021) (Expressing that any offending local laws are “automatically preempted under the terms of the statute. Federal courts can apply EPCA's preemption provision to any such law or regulation.”).

169

American Fuel & Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425 (June 11, 2021).

170

National Automobile Dealers Association, Docket No. NHTSA-2021-0030-0435 (June 10, 2021).

See also

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).

Although commenters widely agreed on Section 32919's self-executing status, a small number of comments opposing the Proposal tried to argue that this status did not preclude the SAFE I Rule. For instance, a joint comment submitted by CEI argued that Section 32919 still “has no practical effect unless someone interprets and implements it.”

171

This misses the central point of the issue though. Since Section 32919 is self-executing, a regulation is not needed to implement the preemption provision, and, moreover, nothing in Section 32919 provides any authority to issue a binding rule on the scope of preemption. In that respect, Section 32919 fundamentally differs from other EPCA statutory provisions, such as Section 32902, which sets a general CAFE framework that must be implemented by NHTSA periodically “prescrib[ing] by regulation” the actual CAFE standards that govern particular model years.

172

EPCA is replete with other examples of those types of statutes requiring regulatory implementation.

173

In contrast, Section 32919 contains all of the elements necessary for implementation within the four corners of its statutory language.

174

This is not just theoretical, but evident from the numerous times Section 32919 has directly supported a private right of action seeking to enforce its preemption provisions in Federal court.

175

171

Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

172

See

49 U.S.C. 32902(a).

173

See supra

nn.125-131.

174

A joint comment submitted by the Urban Air Initiative cites this point as evidence that the SAFE I Rule was a permissible interpretation because Section 32919 does not leave room for a regulation to create newly enforceable requirements.

See supra

nn.84-85. This aspect of the comment is fully addressed in an earlier portion of the final rule that explains how this argument ignores the plain language of the regulations codified in the SAFE I Rule.

175

See Cent. Valley Chrysler-Jeep, Inc.,

529 F. Supp. 2d at 1175;

Green Mountain Chrysler Plymouth Dodge Jeep,

508 F. Supp. at 295;

Ophir

City of Boston,

647 F. Supp. 2d 86, 91-92 (D. Mass. 2009).

To the extent that CEI means that Section 32919 has no practical effect unless it is

enforced,

as explained further in the next section, by promulgating regulations of general applicability, the SAFE I Rule was an act of rulemaking not enforcement. As such, whether Section 32919 needs to be enforced in a particular case has no bearing on whether NHTSA enjoys rulemaking authority to codify a regulation of general applicability.

Ultimately, the self-executing nature of Section 32919 demonstrates that Congress did not establish a rulemaking role for NHTSA in EPCA preemption. Instead, Congress enacted a statutory provision that operates fully on its own, without any discernable responsibility for the Agency in further implementing the scope of Section 32919 through regulations.

b. The Requisite Rulemaking Authority Cannot Be Generally Inferred From EPCA

Both the SAFE I Rule and commenters to the Proposal defending that Rule also argued that the spirit of EPCA hints at the need for such rulemaking authority. NHTSA continues to find this argument unavailing and, as such, is finalizing the Proposal's view that generalized inferences drawn from EPCA cannot sustain the provisions codified in the SAFE I Rule. Moreover, NHTSA views many of the themes and inferences that commenters invoked for this proposition inapposite, as they mischaracterize the nature of the SAFE I Rule. As such, nothing from these purported inferences changes NHTSA's conclusion that the SAFE I Rule was an

ultra vires

rule that must be repealed.

The SAFE I Rule sought to justify the rulemaking on predominantly policy grounds, characterizing the express preemption measure as necessary to fulfill other CAFE responsibilities delegated to the Agency. In particular, the SAFE I Rule argued that the regulation was needed to resolve a perceived irreconcilable conflict between state GHG emissions regulations and ZEV mandates and EPCA's delegation of authority to NHTSA to set national fuel economy standards.

176

The SAFE I Rule thus rationalized the regulations by emphasizing that “Congress's intent to provide for uniform national fuel economy standards is frustrated when State and local actors regulate in this area.”

177

176

NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, Final Rule, 84 FR 51310, 51319 (Sept. 27, 2019).

177

Id.

at 51313.

In particular, the SAFE I Rule suggested that the rulemaking was essential to guard against states or local jurisdictions undermining the CAFE program. For instance, the Agency repeatedly expressed that the regulations targeted “State requirements that

impermissibly interfere

with [the Agency's] statutory role to set nationally applicable standards,”

178

that implementing the provisions was necessary to foreclose state and local requirements that “

conflict

with NHTSA's ability to set nationally applicable standards,”

179

and that the action was necessary because “Congress's intent to provide for uniform national fuel economy standards is

frustrated

when State and local actors regulate in this area.”

180

178

Id.

at 51317 (emphasis added).

179

Id.

at 51319 (emphasis added).

180

Id.

at 51313 (emphasis added).

A large number of the comments supporting the SAFE I Rule expressed this same idea. This theme is illustrated, for example, by a joint comment from CEI, which stresses that without the SAFE I Rule, California (through CARB) would be positioned to “balkanize auto markets unless it gets its way” in dictating motor vehicle emissions and fuel economy standards.

181

Like the SAFE I Rule, such commenters focused on the need for the provision “to avoid potential conflicts with EPCA's national fuel economy standards,”

182

and provided extensive analysis purporting to show how particular programs are poised to “undermine CAFE's flexible fleet-average standards” unless the SAFE I Rule's prohibitions remain in place.

183

Some commenters opposing a repeal even carried this theme to the point of describing the SAFE I Rule as

akin to an enforcement action, necessary for NHTSA to police EPCA's congressional purpose in the face of “lawless” states and local jurisdictions.

184 185

181

Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

182

National Automobile Dealers Association, Docket No. NHTSA-2021-0030-0435 (June 10, 2021).

183

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021) (labeling an entire section of the comment “State electric automobile quotas restrict manufacturer compliance choices and undermine CAFE's flexible fleet-average standards.”).

184

See

Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).

See also

American Fuel & Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425 (June 11, 2021); Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-0411 (June 11, 2021).

185

The SAFE I Rule was not an enforcement action, and NHTSA's portion of the Rule was not (unlike EPA's portion) even an adjudication. Instead, as described throughout this final rule, the SAFE I Rule codified rules of general applicability, which instituted preemption requirements for all states so long as the rule remained in effect. As such, even if those commenters' arguments explain the background for

why

NHTSA tried to undertake the SAFE I Rule, they cannot justify

how

NHTSA acted through a legislative rulemaking of general applicability. For that, it is necessary to instead focus on the issues of rulemaking authority that form so much of this final rule.

The idea that the SAFE I Rule is necessary to prevent states and local jurisdictions from frustrating EPCA or NHTSA's national CAFE program is inconsistent with a properly applied preemption framework. In the absence of the SAFE I Rule, two fundamental preemption mechanisms still exist to guard against state or local programs that sufficiently conflict with CAFE to render EPCA's purposes a nullity.

186

First, as described throughout this final rule, a repeal of the SAFE I Rule does not affect the statutory express preemption provision in Section 32919. This self-executing statutory provision is fully capable of enforcement against offending state and local programs in the absence of any regulations purporting to further implement its scope. In fact, before the SAFE I Rule, this provision had provided this function for years without implementing regulations. Here, Section 32919's plain language illustrates how Congress' preemptive scheme is immediately executable upon NHTSA promulgating the

substantive law

(national fuel economy standards) rather than any express preemption provisions. At most, the statute merely refers to the substantive tasks of the agency to establish “fuel economy standard[s]” and “requirements” as set forth elsewhere in Chapter 329.

187

Such references only connote the core duties borne by the agency to administer the substance of the fuel economy program, such as by setting “maximum feasible average fuel economy” standards under Section 32902 or establishing fuel economy labeling requirements under Section 32908. These responsibilities are within the Agency's traditional substantive regulatory functions, which draw from NHTSA's technical automobile expertise rather than any special agency authority over federalism.

186

Through this, NHTSA stresses that it takes no position in this rulemaking on whether EPCA preemption either expressly or impliedly preempts the particular state and local programs identified by such commenters. The point here is that these mechanisms persist to weigh such commenters' concerns, not that their substantive concerns are substantiated.

187

See 49 U.S.C. 32919(a)-(b).

As such, it is not necessary for NHTSA to codify new express preemption provisions in order to “carry out” EPCA. All NHTSA needs to do is fulfill the substantive task enumerated in Section 32919: Ensuring “an average fuel economy standard prescribed under this chapter is in effect.”

188

Once such a standard is in place, Section 32919's self-executing standard is fully capable of safeguarding Congress' purpose in EPCA. Moreover, as explained in Section II.B.iii. of this final rule, the familiar “related to” standard in Section 32919 may even be clearer to apply and understand without the convoluted layer of the SAFE I Rule. Accordingly, even assuming the concerns raised by such commenters are accurate, they are fully redressable by the statutory express preemption language in Section 32919, which remains untouched by this rulemaking.

188

See

49 U.S.C. 32919(a).

More fundamentally though, even after today's repeal of the SAFE I Rule, judicial concepts of implied preemption will remain available to perform their traditional function of guarding against state law that sufficiently interferes with the supremacy of federal law. In fact, the concepts used by the SAFE I Rule (and commenters defending it) to justify rulemaking authority were actually more appropriately applied to an implied preemption analysis instead.

189

The terminology repeatedly employed throughout the SAFE I Rule—“frustrates,”

190

“conflicts,”

191

and “interferes”

192

—mirrors the standards often arising in implied preemption. Implied preemption is a judicial doctrine principally applied by courts when adjudicating challenges to particular state programs.

193

The judicial standards for implied preemption remain available to presiding courts irrespective of the presence of the SAFE I Rule. Therefore, if state and local jurisdictions endanger EPCA to the degree claimed by those commenters, there is no reason to believe that Article III courts could not evaluate those claims through the lens of implied preemption, as has been the case throughout the long history of both EPCA and all other federal law.

194

189

For instance, the Supreme Court has expressly clarified that when its precedent preempts state laws “when they conflict with or interfere with federal authority over the same activity,” such an opinion “is best read as a conflict pre-emption case.”

See Oneok, Inc.

Learjet, Inc.,

575 U.S. 373, 389 (2015) (discussing

Mississippi Power & Light Co.

Mississippi ex rel. Moore,

487 U.S. 354, 373 (1988)).

190

City of New York,

486 U.S. at 64 (“The statutorily authorized regulations of an agency will pre-empt any state or local law that

conflicts

with such regulations or frustrates the purposes thereof”) (emphasis added).

191

See, e.g., Wyeth

Levine,

555 U.S. 555, 576 (2009) (“This Court has recognized that an agency regulation with the force of law can pre-empt

conflicting

state requirements”) (emphasis added).

192

See, e.g., Patriotic Veterans, Inc.

Indiana,

736 F.3d 1041, 1051 (7th Cir. 2013) (describing how under the doctrine of conflict preemption, state law may be preempted “if it

interferes”

with federal law) (emphasis added).

193

See, e.g., Freightliner Corp.

Myrick,

514 U.S. 280, 287 (1995) (explaining that implied conflict preemption may exist in particular situations “where it is impossible for a private party to comply with both state and federal requirements or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”) (internal quotations omitted).