USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 1 of 61
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ADVANCED ENERGY ECONOMY,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
ANDREW R. WHEELER, in his official capacity as Administrator, United States Environmental Protection Agency, No. 19-1249 Respondents. PETITION FOR REVIEW
Pursuant to Rule 15 of the Federal Rules of Appellate Procedure, D.C.
Circuit Rule 15, and Section 307(b)(1) of the Clean Air Act, 42 U.S.C. USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 2 of 61
§ 7607(b)(1), Advanced Energy Economy (“AEE”) hereby petitions this Court for
review of the final actions by respondents United States Environmental Protection
Agency and Administrator Andrew R. Wheeler titled “The Safer Affordable Fuel
Efficient (SAFE) Vehicles Rule Part One: One National Program,” and published at
84 Fed. Reg. 51,310 (September 27, 2019). A copy is attached as Exhibit A. This
petition for review is timely filed within sixty days of the challenged action’s
publication in the Federal Register. 42 U.S.C. § 7607(b)(1).
DATED: November 25, 2019
Respectfully submitted,
/s/ Jeffery Scott Dennis
Jeffery S. Dennis General Counsel and Managing Director Advanced Energy Economy 1000 Vermont Ave. NW Suite 300 Washington, D.C. 20005 202.383.1950 [email protected]
Counsel for Advanced Energy Economy
2 USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 3 of 61
CERTIFICATE OF SERVICE
I, Jeffery Scott Dennis, hereby certify that on this 25th day of November,
2019, a true and correct copy of the foregoing Petition for Review was served by
certified mail, return receipt requested, on the following:
Hon. Andrew Wheeler, Administrator Office of the Administrator (1101A) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460
Correspondence Control Unit Office of General Counsel (2311) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460
Hon. William Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530
/s/ Jeffery Scott Dennis Jeffery Scott Dennis
3 USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 4 of 61
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ADVANCED ENERGY ECONOMY, Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
ANDREW R. WHEELER, in his official capacity as Administrator, United States
Environmental Protection Agency,
Respondents. No. 19-1249
RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1,
Petitioner Advanced Energy Economy (“AEE”) states as follows: USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 5 of 61
AEE is a not-for-profit business association dedicated to making energy
secure, clean, and affordable. AEE does not have any parent companies or issue
stock, and no publicly held company has a 10% or greater ownership interest in
AEE.
DATED: November 25, 2019
Respectfully submitted,
/s/ Jeffery Scott Dennis
Jeffery S. Dennis General Counsel and Managing Director Advanced Energy Economy 1000 Vermont Ave. NW Suite 300 Washington, D.C. 20005 202.383.1950 [email protected]
Counsel for Advanced Energy Economy USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 6 of 61
CERTIFICATE OF SERVICE
I, Jeffery Scott Dennis, hereby certify that on this 25th day of
November, 2019, a true and correct copy of the foregoing Rule 26.1 Corporate
Disclosure Statement was served by certified mail, return receipt requested, on
the following:
Hon. Andrew Wheeler, Administrator Office of the Administrator (1101A) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460
Correspondence Control Unit Office of General Counsel (2311) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460
Hon. William Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530
/s/ Jeffery Scott Dennis Jeffery Scott Dennis USCA Case #19-1249 Document #1818015 Filed: 11/25/2019 Page 7 of 61
EXHIBIT A 51310USCA Federal Case #19-1249Register/Vol. 84,Document No. 188/Friday, #1818015 September 27,Filed: 2019/Rules 11/25/2019 and Regulations Page 8 of 61
ENVIRONMENTAL PROTECTION November 26, 2019. Given the inherent III. EPA's Withdrawal of Aspects of the AGENCY relationship between the agencies' January 2013 Waiver of CAA section actions, any challenges to NHTSA's 209(b) Preemption of the State of 40 CFR Parts 85 and 86 regulation should also be filed in the California's Advanced Clean Car Program United States Court of Appeals for the IV. Regulatory Notices and Analyses DEPARTMENT OF TRANSPORTATION D.C. Circuit. See also Sections III.G and IV.Q of this preamble. I. Overview National Highway Traffic Safety ADDRESSES: EPA and NHTSA have On August 24, 2018, the Administration established dockets for this action under Environmental Protection Agency (EPA) Docket ID No. EPA-HQ-OAR-2018- and the Department of Transportation's 49 CFR Parts 531 and 533 0283 and NHTSA 2018-0067, National Highway Traffic Safety [NHTSA-2018-0067; EPA-HQ-OAR-2018- respectively. All documents in the Administration (NHTSA) (collectively, 0283; FRL 10000-45-OAR] docket are listed in the http:// "the agencies") jointly published in the RIN 2127-AL76; 2060-AU09 www.regulations.gov index. Although Federal Register a notice of proposed listed in the index, some information is rulemaking entitled, "The Safer The Safer Affordable Fuel-Efficient not publicly available, e.g., confidential Affordable Fuel-Efficient (SAFE) (SAFE) Vehicles Rule Part One: One business information (CBI) or other Vehicles Rule for Model Years 2021- National Program information whose disclosure is 2026 Passenger Cars and Light Trucks" restricted by statute. Certain other (the SAFE Vehicles rule).' In the NPRM, AGENCY: Environmental Protection material, such as copyrighted material, EPA proposed new greenhouse gas Agency and National Highway Traffic will be publicly available in hard copy (GHG) standards and NHTSA proposed Safety Administration, Department of in EPA's docket, and electronically in new Corporate Average Fuel Economy Transportation. NHTSA's online docket. Publicly (CAFE) standards for model years (MY) ACTION: Withdrawal of waiver; final available docket materials can be found 2021 to 2026 light duty vehicles. The rule. either electronically in agencies also proposed to take two www.regulations.govby searching for actions, separate from the proposed SUMMARY: On August 24, 2018, the the dockets using the Docket ID standards, needed to ensure the Environmental Protection Agency (EPA) numbers above, or in hard copy at the existence of one Federal program for and the Department of Transportation's following locations: EPA: EPA Docket light vehicles. First, EPA proposed to National Highway Traffic Safety Center, EPA/DC, EPA West, Room 3334, withdraw the waiver it had previously Administration (NHTSA) jointly 1301 Constitution Ave. NW, provided to California for that State's published in the Federal Register a Washington, DC. The Public Reading GHG program and Zero Emissions notice of proposed rulemaking entitled, Room is open from 8:30 a.m. to 4:30 Vehicle (ZEV) mandate. Second, "The Safer Affordable Fuel-Efficient p.m., Monday through Friday, excluding NHTSA proposed regulatory text that (SAFE) Vehicles Rule for Model Years legal holidays. The telephone number made explicit that State programs to 2021-2026 Passenger Cars and Light for the Public Reading Room is (202) limit or prohibit tailpipe GHG emissions Trucks." In the NPRM, the agencies 566-1744. NHTSA: Docket Management or establish ZEV mandates are proposed new and amended greenhouse Facility, M-30, U.S. Department of preempted, to carry out its statutory gas (GHG) and Corporate Average Fuel Transportation (DOT), West Building, authority to set nationally applicable Economy (CAFE) standards for model Ground Floor, Rm. W12-140, 1200 New fuel economy standards and consistent year 2021 to 2026 light duty vehicles. Jersey Avenue SE, Washington, DC with the express preemption provisions EPA also proposed to withdraw the 20590. The DOT Docket Management of the Energy Policy and Conservation waiver it had previously provided to Facility is open between 9 a.m. and 5 Act (EPCA). California for that State's GHG and ZEV p.m. Eastern Time, Monday through The SAFE Vehicles Rule received programs under section 209 of the Clean Friday, except Federal holidays. several hundred thousand public Air Act. NHTSA also proposed comments, which discussed in great regulatory text implementing its FOR FURTHER INFORMATION CONTACT: EPA: Christopher Lieske, Office of detail all aspects of the proposal. The statutory authority to set nationally nature of the comments received related applicable fuel economy standards that Transportation and Air Quality, Assessment and Standards Division, to the proposed standards and the made explicit that those State programs proposed actions on preemption, would also be preempted under Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI though, were considerably different. NHTSA's authorities. In this action, the That is, the vast majority of comments, agencies finalize the two actions related 48105; telephone number: (734) 214- 4584; fax number: (734) 214-4816; whether one considers the number of to the waiver and preemption. commenters, the number of issues Accordingly, in this document: EPA email address: lieske.christopher@ epa.gov, or contact the Assessment and raised by commenters, or the length and announces its decision to withdraw the level of detail of those comments, waiver; and NHTSA finalizes regulatory Standards Division, email address: [email protected]. focused primarily on the agencies' text related to preemption. The agencies proposed standards. In contrast, the NHTSA: James Tamm, Office of anticipate issuing a final rule on comments to the preemption issues, Rulemaking, Fuel Economy Division, standards proposed in the NPRM in the though substantive and thorough, were National Highway Traffic Safety near future. fewer in number and length, and raised Administration, 1200 New Jersey DATES: This joint action is effective primarily legal issues, rather than the Avenue SE, Washington, DC 20590; November 26, 2019. technical or economic issues that were telephone number: (202) 493-0515. JudicialReview: Pursuant to Clean Air the focus of many comments to the Act section 307(b), any petitions for SUPPLEMENTARY INFORMATION: standards. Both the proposed waiver judicial review of this action must be I. Overview withdrawal and discussion of EPCA filed in the United States Court of II. Preemption Under the Energy Policy and Appeals for the D.C. Circuit by Conservation Act 183 FR 42986. USCAFederal Case #19-1249Register/Vol. 84,Document No. 188/Friday, #1818015 September 27,Filed: 2019/Rules 11/25/2019 and Regulations Page 9 of 6151311 preemption are legal matters that are preemption proposals), and in light of period, look to whether the public had independent of the technical details of the recent actions taken by California, a meaningful opportunity to comment the proposed standards and, as such, the agencies have determined it is on a proposed action. See, e.g., Rural took up a relatively small part of the appropriate to move forward with the CellularAss'n v. FCC, 588 F.3d 1095, NPRM. two actions related to preemption now, 1101 (D.C. Cir. 2009); ConnecticutLight Recent actions by the State of while continuing work on a final rule to & Power Co. v. Nuclear Regulatory California taken after the publication of establish the CAFE and GHG standards Comm'n, 673 F.2d 525, 534 (D.C. Cir. the NPRM have confirmed the need for that were within the scope of the NPRM. 1982). There was unquestionably a final decision from the agencies that This decision is appropriate, as agencies meaningful opportunity to comment States do not have the authority to set have authority to finalize different parts here. The agencies received several GHG standards or establish ZEV of proposed actions at different times. hundred thousand comments, which mandates. First, on December 12, 2018, Further, the agencies previewed this included highly detailed and technical California unilaterally amended its possibility in the NPRM by emphasizing comments on all aspects of the proposal "deemed to comply" provision, such the severability of the standards from from seemingly all relevant that CARB's GHG standards can be the actions being finalized in this stakeholders, including numerous satisfied only by complying with EPA's document. EPA's action in this comments related to EPA's action on the standards as those standards were document does not add or amend waiver and NHTSA's proposal on promulgated in 2012.2 More recently, on regulatory text pursuant to the Clean Air preemption. The agencies also note that July 25, 2019, California announced a Act and, thus, issuing this decision on the NPRM was initially issued and so-called "voluntary framework" with the waiver and the later rulemaking on made public on August 2, 2018, over four automakers, which purported, the standard makes clear the difference three weeks prior to publication in the without analysis of the terms of the between EPA's two actions and their Federal Register, and received extensive existing waiver, California law, or how independence from one another. media coverage immediately thereafter, this "framework" is permissible under NHTSA's action in this document is not and giving a total of 86 days to review Federal law, to allow those automakers to set standards for particular model and comment. Furthermore, the to meet reduced standards on a national years, but rather is an exercise of its agencies held three public hearings basis if they promise not to challenge authority under 49 U.S.C. 32901 during the comment period, including California's authority to establish GHG through 32903, necessary to maintain one in Fresno, California on September standards or the ZEV mandate. 3 These the integrity of the corporate average 24, 2018, where the agencies heard from two actions, both of which conflict with fuel economy program and compliance several hundred commenters in person. the maintenance of a harmonized regime established by Congress as a national fuel economy and tailpipe GHG nationwide program, and consistent II. Preemption Under the Energy Policy emissions program and the terms of the with Congress' statement of express and Conservation Act agreement reached in 2012 and 2013, preemption in 49 U.S.C. 32919. These A. NHTSA Is FinalizingIts Preemption confirm that the only way to create one two general aspects of the SAFE Proposal actual, durable national program is for Vehicles Rule are independent of the NHTSA is finalizing its proposal GHG and fuel economy standards to be CAFE and GHG standards for Model 5 concerning preemption of State and set by the Federal government, as was Years 2021-2026. For that reason, the local laws and regulations related to fuel intended by Congress in including decision in this document to finalize the economy standards. Congress passed express preemption provisions in both waiver and preemption issues does not EPCA to help achieve the important the Clean Air Act (for new motor require the agencies to reopen the national objective of protecting the vehicle emissions standards) and EPCA comment period for the standards, as it 4 United States against petroleum price economy). (for fuel does not have any effect on either shocks through improvements in fuel In light of the divergence in the type agency's standards. efficiency for the light duty vehicle of comments received to the proposal The agencies note that several fleet. But Congress did not seek to do so (i.e., between the standards-related comments claimed that the comment at any cost-instead directing the 63 proposal and the waiver and period of days was inadequate or that Secretary of Transportation to balance the agencies did not hold a sufficient statutory factors, such as the need of the 2 See In re: Air Resources Board, Notice of number of public meetings. Although Approval of Regulatory Action, No. 2018-1114-03 nation to conserve energy, technological the agencies will address this comment feasibility, and economic practicability, (State of California, Office of Administrative Law more directly in the forthcoming final Dec. 12, 2018), available at https://ww3.arb.ca.govl to arrive at stringent, but feasible, rulemaking to establish standards, for regact/2018/leviii2Ol8form400dtc.pdf? standards on a Federal basis. ga=2.183723951.866759811.1568583699- purposes of this action, it is clear to the 1441462912.1552677736 (last visited Sept. 15, Increasing fuel economy is an agencies that commenters had adequate expensive undertaking for automakers, 2019). time to respond to the issue of the 3 See California and Major Automakers Reach the costs of which are necessarily Groundbreaking Framework Agreement on Clean waiver and EPCA preemption. Courts passed on to consumers, thereby Emission Standards, Office of Gov. Gavin Newsome give broad discretion to agencies in discouraging new vehicle purchases and (July 25, 2019), available at https://www.gov.ca.govl determining whether the length of a slowing the renewal of the nation's light 2019/07/25/california-and-major-automakers- comment period is reasonable and, in reach-groundbreaking-framework-agreement-on- duty fleet. That is why fuel economy clean -emission-standards (last visited Sept. 14, assessing the sufficiency of a comment standards must be set considering other 2019); Terms for Light-Duty Greenhouse Gas critical factors. Emissions Standards, available at https:// 5 The agencies note that the South Coast Air ww2.arb.ca.gov/sites/default/files/2019-07Auto Quality Management District commented that EPA This is also why the notion of %20Terms%20Signed.pdf(last visited Sept. 14, should not take an action on the waiver in the same national applicability and preemption of 2019). notice as a rule that would change EPA's GHG State or local laws or regulations related 4 At the time this joint action was signed, standards. See South Coast Air Quality to fuel economy standards is so critical. California had not submitted or demonstrated any Management District, Docket No. NHTSA-2018- Allowing State or local governments to intention to submit an application for a waiver for 0067-11813. Although the agencies do not either its December 2018 amendment to its acknowledge the validity of this argument, any such establish their own fuel economy regulations or its July 2019 "framework." concern is rendered moot by this action. standards, or standards related to fuel 51312USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 10 of 61 economy, would provide for a universe finalizing in this document. 7 NHTSA EPCA. 1 2 NHTSA explained that those in which automakers are placed in the has asserted preemption of certain State developments did not change its view of untenable situation of having to expend emissions standards under EPCA on preemption and it reaffirmed the resources to comply not only with multiple occasions since 2002. The detailed analysis and conclusions from Federal standards, but also meet United States explained in a 2002 the 2006 final rule. 13 Subsequent CAFE separate State requirements. If State or amicus brief that EPCA preempted rulemaking documents, prior to the local governments are allowed to California's then-existing zero-emissions August 2018 proposal, did not discuss 14 require-directly or indirectly- vehicle (ZEV) regulations.8 NHTSA EPCA preemption. Thus, this final automakers to develop and implement continued the discussion of preemption rule is consistent with NHTSA's additional technologies to improve fuel later that year in a notice of proposed longstanding position on EPCA economy (or reduce or eliminate rulemaking setting CAFE standards for preemption over the course of nearly tailpipe greenhouse gas emissions for all model year 2005 through 2007 light two decades. or a portion of a fleet), the fuel trucks, and reiterated its position in the In the proposal, NHTSA also economy-related expenses of 2003 final rule. 9 NHTSA's 2005 notice described certain developments, automakers increase beyond those of proposed rulemaking setting including the Supreme Court's decision considered in establishing federal standards for model year 2008 through in Massachusettsv. EPA, that preceded standards. This would render the 2011 light trucks also discussed EPA's regulation of tailpipe greenhouse critical balancing required by EPCA gas emissions through joint rulemaking preemption and the 2006 final rule 1 5 devoid of meaning. elaborated on the issue at length, with NHTSA. In addition, NHTSA Uniform national fuel economy including in a specific discussion described the Obama Administration's standards are essential to accomplishing finding California's then-existing creation of a framework that was the goals of EPCA. To ensure that the tailpipe greenhouse gas emissions intended to allow a manufacturer to "meet all standards with fuel economy standards NHTSA adopts regulations were preempted. 10 NHTSA's a single constitute the uniform national 2008 proposed rule for model year 2011 national fleet." 16 Appeals of the two requirements that Congress intended, through 2015 passenger cars and light district court decisions holding that the NHTSA must address the extent to trucks also addressed preemption and California regulation and Federal which State and local laws and proposed adding a summary of regulation could co-exist were withdrawn as part of the negotiated regulations are preempted by EPCA. NHTSA's position on the issue to the 1 7 for the National Program. Furthermore, EPCA states: "When an Code of Federal Regulations."I That agreement average fuel economy standard proposed rule also addressed recent The announcement of the framework prescribed under this chapter is in developments, specifically the Supreme was followed by EPA's decision less than two months later to grant a waiver effect, a State or a political subdivision Court's decision in Massachusetts v. to California for its own greenhouse gas of a State may not adopt or enforce a EPA, the enactment of EISA, and two emissions standards, without taking any law or regulation related to fuel district court decisions finding that substantive position on EPCA economy standards or average fuel State tailpipe greenhouse gas emissions 1 preemption. 8 The national framework economy standards for automobiles standards were not preempted by was a negotiated agreement between the covered by an average fuel economy Federal government, California, and the standard under this chapter." 49 U.S.C. 7Id. at 43232. As NHTSA 1 9 noted in the proposal, automotive industry. 32919(a). As a limited exception, a State it had not previously directly addressed preemption NHTSA confirms its view, stated in or local government "may prescribe of California's ZEV program. Id. at 43233. 8 Brief for the United States as Amicus Curiae in the proposal on preemption, that the requirements for fuel economy for Support of Affirmance, Cent. Valley Chrysler- agencies' consideration in 2012 of automobiles obtained for its own use." Plymouth Inc., et al, v. Kenny, No. 02-16395 (9th California's "deemed to comply" 49 U.S.C. 32919(c). In addition, when a Cir. 2002). Federal fuel economy labeling or 9 68 FR 16868, 16895 (Apr. 7, 2003); 67 FR 77015, 12 73 FR 24352, 24478 (May 2, 2008). 77025 (Dec. 16, 2002). In the notice of proposed information requirement is in effect, 13Id. rulemaking, NHTSA specifically rejected the pursuant to 49 U.S.C. 32908, a State or argument made by California in litigation that 14 As noted above, in NHTSA's final rule for local government may adopt or enforce NHTSA had not treated EPCA as preempting State model year 2011, it stated that "[t]he agency will an identical requirement on "disclosure efforts to engage in CAFE-related regulation, re-examine the issue of preemption in the content of fuel economy or fuel operating costs." explaining that States may not "issue a regulation of its forthcoming rulemaking to establish Corporate that relates to fuel economy and which addresses Average Fuel Economy standards for 2012 and later 49 U.S.C. 32919(b). Absent this limited the same public policy concern as the CAFE statute. model years." 74 FR 14196, 14200 (Mar. 30, 2009). circumstance, a State or local Our statute contains a broad preemption provision However, in the NHTSA's 2009 proposal and 2010 government cannot even have laws in making clear the need for a uniform, federal final rule setting standards for model year 2012 through 2016 automobiles, NHTSA stated that is place that are identical to the Federal system. . . . The fact that NHTSA had not expressly addressed this particular aspect of was "deferring further consideration of the standards. California's requirements should not have been preemption issue." 75 FR 25324, 25546 (May 7, NHTSA will first summarize its interpreted as tacit acceptance." 67 FR 77015, 2010); 74 FR 49454, 49635 (Sept. 28, 2009). discussion of preemption in the 77025 (Dec. 16, 2002). 15 83 FR 42986, 43232-33 (Aug. 24, 2018). proposal before turning to discussion of 10 71 FR 17566, 17654-70 (Apr. 6, 2006); 70 FR 16Id. at 43233; 76 FR 74854, 74863 (Dec. 1, 2011). 51414, 51457 (Aug. 30, 2005). 17 See 83 FR 42986, 43233 (Aug. 24, 2018); issues raised by the comments. In this 1173 FR 24352, 24478-79 (May 2, 2008). NHTSA Association of Global Automakers, Docket No. final rule, NHTSA fully reaffirms the finalized only standards for model year 2011 NHTSA-2018-0067-12032. discussion of preemption set forth in the through that rulemaking action, and subsequently 18 In other words, the National Program included proposal, which provides additional began a new rulemaking for model year 2012 and State requirements not nationally applicable. 83 FR detail regarding NHTSA's views. 6 later passenger cars and light trucks. In the final 42986, 43233 (Aug. 24, 2018); see also 74 FR 32744, rule for model year 2011, NHTSA stated: "NHTSA 32783 (July 8, 2009) ("EPA takes no position In the proposal, NHTSA described its has decided not to include any provisions regarding whether or not California's GHG preemption discussions in prior addressing preemption in the Code of Federal standards are preempted under EPCA."). rulemakings, which are consistent with Regulations at this time. The agency will re- 19 After President Obama announced the the views on preemption that NHTSA is examine the issue of preemption in the content of agreement, NHTSA and EPA subsequently adopted its forthcoming rulemaking to establish Corporate CAFE and greenhouse gas emissions standards Average Fuel Economy standards for 2012 and later through rulemaking. See 75 FR 25324 (May 7, 6 See 83 FR 42986, 43232-39 (Aug. 24, 2018). model years." 74 FR 14196, 14200 (Mar. 30, 2009). 2010). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 11 of 6151313 regulatory provision as obviating proposal, unlike the Clean Air Act, there change EPCA's preemption provision NHTSA's consideration of preemption is no set of circumstances under EPCA when it adopted EISA, despite clearly 39 was erroneous. 20 This, too, was part of in which it would be appropriate or having the opportunity to do so. the negotiated agreement described permissible for NHTSA to waive Because States lacked preexisting above.21 Under California's regulatory preemption or allow States or local authority to set tailpipe greenhouse gas provision, California deemed governments to adopt or enforce emissions standards, as a result of 29 manufacturers to be in compliance with identical or equivalent requirements. EPCA's preemption provision, EISA's certain of California's requirements if EPCA does not provide NHTSA with savings clause did not give them that they complied with EPA's standards.22 any waiver authority whatsoever. To authority. However, EPCA explicitly provides that ensure Federal primacy over this area, In the proposal, NHTSA also all State requirements "related to" fuel EPCA broadly preempts all State and described in detail the reasons that economy standards, even those that may local laws "related to" fuel economy tailpipe carbon dioxide emissions be identical or equivalent to Federal standards or average fuel economy regulations or prohibitions are "related requirements are preempted by EPCA.23 standards.30 NHTSA reiterates, to" fuel economy standards.40 NHTSA Moreover, as discussed in additional consistent with the proposal, that in this explained that carbon dioxide emissions detail below, California recently rulemaking NHTSA is concluding that are a necessary and inevitable changed its regulations so that it has no State and local requirements that relate byproduct of burning gasoline: The more fuel a vehicle burns or consumes, such "deemed to comply" provision to fuel economy standards by directly or 4 1 should the forthcoming SAFE final rule substantially affecting corporate average the more carbon dioxide it emits. 3 1 adopt any regulatory alternative other fuel economy levels are preempted. Based on the physical and than the no action alternative.24 This NHTSA also described Supreme Court mathematically measurable relationship change sets up a direct conflict between precedent interpreting the meaning of between carbon dioxide emissions and Federal and State requirements, "related to." 32 In addition to the plain fuel economy, EPCA has always exacerbating the conflict that exists even language of the statute, NHTSA applied specified that compliance with fuel now. to EPCA the guidance from Supreme economy standards is determined Congress's intent to provide for Court case law to consider both the through tests and calculation 42 uniform national fuel economy objectives of the statute and the effect of procedures established by EPA. standards is frustrated when State and the State laws on the Federal Specifically, compliance with fuel local actors regulate in this area. In the standards. 33 As NHTSA explained, the economy standards is based almost proposal, NHTSA explained that the primacy of a single national fuel entirely on carbon dioxide emission need for regulatory certainty, along with economy standard, set by the Federal rates. 43 As NHTSA noted, it is the clear prospect of disharmony, government, was an important objective significant that in enacting EPCA, 5 required it to address preemption.2 of Congress in enacting EPCA. Congress both adopted test procedures NHTSA also explained its desire to seek In adopting EISA, Congress did not reliant on the direct relationship comments on this important issue from repeal or amend EPCA's express between carbon dioxide emissions and State and local officials, along with preemption provision. 34 While Congress fuel economy, and preempted State and other interested members of the included in EISA a savings provision local governments from adopting public.26 NHTSA in fact received many preventing EISA from limiting requirements related to fuel economy 4 4 comments from State and local preexisting authority or responsibility standards in the same law. governments, NGOs, industry, and conferred by any law, or from NHTSA affirms in this final rule that others concerning preemption.27 This authorizing violation of any law,3 5 the a State or local requirement limiting comment process helped ensure that the savings clause did not purport to tailpipe carbon dioxide emissions from agency considered all facets of this expand either EPA's or NHTSA's automobiles has the direct and significant issue before reaching a final preexisting authority or responsibility.36 substantial effect of regulating fuel determination in this rule. NHTSA recognized that during debate consumption and, thus, is "related to" NHTSA also discussed the broad and on the floor, some Members of Congress fuel economy standards. Likewise, since clear text of EPCA's express preemption made statements about the savings carbon dioxide emissions constitute the 28 provision. As NHTSA explained in the provision's impact on California's overwhelming majority of tailpipe ability to set tailpipe greenhouse gas carbon emissions, a State regulation of 37 20 See id.; 77 FR 62624, 62637 (Oct. 15, 2012). emissions standards. NHTSA affirms all tailpipe greenhouse gas emissions 21 See 75 FR 25324, 25328 (May 7, 2010). its view, consistent with Supreme Court from automobiles or prohibiting all 22 83 FR 42986, 43233 (Aug. 24, 2018). precedent, that such legislative history 23 See id. at 43233-34. tailpipe emissions is also "related to" 24 See 83 FR 42986, 42990 tbl. I-4 (Aug. 24, does not alter the plain text of the fuel economy standards and preempted 38 2018); Cal. Code Regs. tit. 13, sec. 1961.3(c). statute. In the end, Congress did not by EPCA. California changed its regulation following issuance NHTSA is also finalizing its of NHTSA and EPA's proposed rule. See State of 291d. at 43233. conclusion that EPCA does not preempt Cal., Office of Admin. Law, Notice of Approval of 3049 U.S.C. 32919(a). Regulatory Action (Dec. 12, 2018), https:// all potential State or local regulation of 3183 FR 42986, 43233 (Aug. 24, 2018). www.arb.ca.gov/regact/2018leviii2l8 3 2 greenhouse gas emissions from vehicles. 1d. form4OOdtc.pdf. NHTSA recognized the potential 3 3 As NHTSA explained in the proposal, for such a change in the proposal. 83 FR 42986, d. at 43233-34. 43233 n.495 (Aug. 24, 2018). 34 See EISA, Public Law 110-140 (2007). 25 83 FR 42986, 43233 (Aug. 24, 2018). 3542 U.S.C. 17002. legislative history will never allow it to be used to 'muddy' the meaning of 'clear statutory language.'") 26Id. 36 See id. (internal citations omitted). 27 See, e.g., California Air Resources Board 3783 FR 42986, 43234 (Aug. 24, 2018). 39See EISA, Public Law 110-140 (2007); 83 FR (CARB), Docket No. NHTSA-2018-0067-11873; 38 See Food Mktg. Inst. v. Argus Leader Media, 42986, 43234 (Aug. 24, 2018). Alliance of Automobile Manufacturers, Docket No. 139 S.Ct. 2356, 2364 (2019) ("In statutory 40 83 FR 42986, 43234 (Aug. 24, 2018). NHTSA-2018-0067-12073; Joint Submission from interpretation disputes, a court's proper starting the States of California et al. and the Cities of point lies in a careful examination of the ordinary 41Id. Oakland et al., Docket No. NHTSA-2018-0067- meaning and structure of the law itself. Where, as 42 49 U.S.C. 32904(c). 11735. here, that examination yields a clear answer, judges 43 See 83 FR 42986, 43234 (Aug. 24, 2018). 4 4 28 83 FR 42986, 43233-34 (Aug. 24, 2018). must stop. Even those of us who sometimes consult Id. 51314USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 12 of 61 some greenhouse gas emissions from The agencies particularly disagree with which determine manufacturers' credits vehicles are not related to fuel economy those district courts' characterization of or shortfalls. See 49 U.S.C. 32903. because they have either no effect on the "related to" language in EPCA's NHTSA also finalizes the view, as discussed in the proposal, that ZEV fuel economy, or only an insignificant preemption provision as narrow, their 58 effect on fuel economy. 45 NHTSA reliance on California's application for a mandates are preempted by EPCA. provided an example of a requirement Clean Air Act waiver, and the courts' Such laws, which require that a certain with no bearing on fuel economy: a implied preemption analyses. 54 As the number or percentage of vehicles sold or State regulation of vehicular refrigerant proposal explained, these decisions are delivered in a State by a manufacturer leakage.46 NHTSA also explained that legally flawed, and NHTSA is not barred meet ZEV requirements, directly and State safety requirements that have only from proceeding with its preemption substantially affect fuel economy 55 an incidental impact on fuel economy, determination here. standards by requiring manufacturers to such as a requirement to use child seats, NHTSA also reaffirms its views on eliminate fossil fuel use in a portion of is not preempted because it does not implied preemption, as described in the their fleet. Like State or local tailpipe sufficiently relate to fuel economy proposal. 56 State or local limitations or GHG emissions standards, ZEV 47 standards. NHTSA also confirms its prohibitions on tailpipe carbon dioxide mandates require the application of view that, if preempted requirements emissions from automobiles directly additional efforts and resources beyond are combined with requirements not conflict with the objectives of EPCA. those needed to comply with Federal related to fuel economy, ECPA would NHTSA balances statutory factors in standards. ZEV mandates also directly void only the preempted portion of the setting CAFE standards at "the conflict with the goals of EPCA as they law. maximum feasible average fuel economy apply irrespective of the Federal In addition, NHTSA and EPA are level that the Secretary decides the statutory factors the Secretary of confirming their determination, in this manufacturers can achieve in that Transportation (through NHTSA) is 57 joint final action, that a Clean Air Act model year" (49 U.S.C. 32902(a)). required to consider in setting fuel waiver does not waive EPCA State requirements, made based on economy standards, including preemption. As explained in the State-specific determinations unbound technological feasibility and economic proposal, a State or local law or by the considerations in EPCA, frustrate practicability. In the proposal, NHTSA regulation related to automobile fuel NHTSA's statutory role. If one or more described, as an example, California's economy standards is void ab initio ZEV mandate, which manufacturers 48 States may issue competing or under the preemptive force of EPCA. overlapping requirements affecting fuel must comply with individually for each mandate. 59 As support, the proposal cited economy standards, industry must also State adopting California's longstanding Supreme Court case law apply resources and effort at meeting This regime of State mandates forces concerning the Supremacy Clause and standards applicable only to discrete manufacturers to expend scarce action in violation of a statutory resources on specific technology 49 parts of the country in addition to those prohibition. In sum, "[i]t is basic to spent to comply with the Federal regardless of consumer demand, and this constitutional command [in the standards. In accordance with EPCA, regardless of what the Secretary has Supremacy Clause] that all conflicting manufacturers' "average fuel economy" determined in her judgment to be the state provisions be without effect." 50 is calculated based on specific statutory appropriate expenditure of resources As explained in the proposal, requirements. 49 U.S.C. 32901(a)(5), necessary to comply with fuel economy avoiding preemption under one Federal 32904. Manufacturers earn credits for standards set in accordance with the law has no necessary bearing on another exceeding average fuel economy balancing required by EPCA. 5 1 NHTSA also confirms its view that Federal law's preemptive effect. For standards. 49 U.S.C. 32903. This the preemption portion of this joint final purposes of the present rule, this statutory compliance structure is action is a statement of what Federal conclusion is confirmed by Section 209 impeded when States or local law requires and is effective without of the Clean Air Act, which explicitly governments attempt to set or enforce regard to any particular model year of states that a waiver of preemption their own requirements, which vehicles and without regard to the pursuant to that provision of the Clean necessarily apply to manufacturers at a details of the fuel economy and Air Act only relieves "application of State or local level. This interferes with greenhouse gas emissions standards the this section." 52 NHTSA also confirms the national "average fuel economy" its view that a Clean Air Act waiver agencies have set previously or set in program. The broad preemption the future.60 In other words, NHTSA's does not "federalize" State or local provision adopted by Congress in EPCA regulation concerning EPCA preemption requirements preempted by EPCA. clearly demonstrates the intention for a is independent of and severable from NHTSA and EPA also explained in single national set of standards that the specific standards it ultimately the proposal their disagreement with consider, among other things, economic adopts for model year 2021 through decisions from district courts in feasibility and consumer choice. Indeed, 2026 automobiles. Given the need for California and Vermont that held that the entire purpose of a balanced EPCA did not preempt State tailpipe clarity on this issue, NHTSA has 53 standard is defeated if a State can place greenhouse gas emissions standards. decided to issue this as a separate final its thumb on the scale. Likewise, rule and will later finalize the standards separate State or local requirements 45Id. at 43234-35. for model year 2021 through 2026 interfere with the compliance regime 46Id. at 43235. automobiles. NHTSA's preemption under EPCA of performance determined 47 Id. regulation formalizes its longstanding based on nationwide fleet averages, 48 Id. position on preemption and 49 Id. 0 incorporates that position into the Code 5 Maryland v. Louisiana, 451 U.S. 725, 746 2d 295 (D. Vt. 2007); Cent. Valley Chrysler-Jeep, Inc. (1981) (citing McCulloch v. Maryland, 4 Wheat. 316, v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. 2007), of Federal Regulations provisions 427 (1819)). as corrected (Mar. 26, 2008). concerning passenger automobile 51 83 FR 42986, 43235 (Aug. 24, 2018). 54 83 FR 42986, 43232-38 (Aug. 24, 2018). 52 42 U.S.C. 7543(b)(1). 55 See id. at 43235. 58 See id. at 43238-39. 53 83 FR 42986, 43232-38 (Aug. 24, 2018); see 56 See id. at 43237-38. 59 Id. Green Mountain Chrysler v. Crombie, 508 F. Supp. 5749 U.S.C. 32902(f). 60 See id. at 43239. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 13 of 6151315 average fuel economy standards at 49 Third, "[t]he most significant and word "most" instead of "almost all." 73 CFR 531.7 and 49 CFR part 531, controlling factor in making the South Coast asserts that the 2008 appendix B, and light truck fuel measurements necessary to determine proposal shows that NHTSA "strains to economy standards at 49 CFR 533.7 and the compliance of automobiles with the exaggerate" the overlap between 49 CFR part 533, appendix B. These fuel economy standards in this part [531 greenhouse gas emissions standards and portions of the regulations are operable and 533] is their rate of tailpipe carbon fuel economy standards. 74 NHTSA without regard to any specific Federal dioxide emissions." 49 CFR part 531, disagrees. While South Coast points to standards and requirements in 49 CFR appx. B, section (a)(1)(C); 49 CFR part 5 hybrid electric vehicles and ZEVs, it parts 531 and 533 or other parts of the 533, appx. B, section (a)(1)(C).6 The offers no evidence to refute the fact that Code of Federal Regulations. Likewise, Alliance of Automobile Manufacturers almost all technologically feasible NHTSA's determination that a State or similarly stated that the measurements reduction of tailpipe emissions of local law or regulation of tailpipe for CAFE compliance involved "the carbon dioxide is achievable through greenhouse gas emissions from same tests, vehicles, sales data, and improving the fuel economy levels of automobiles is related to fuel economy emissions measurements that the EPA the vehicles in question. standards is severable from NHTSA's uses to measure carbon dioxide and determination that State or local ZEV tailpipe GHG emissions." 66 Fiat Fifth, "as a practical matter, mandates are related to fuel economy Chrysler Automobiles (FCA) also regulating fuel economy controls the standards. reiterated this point from the Alliance's amount of tailpipe emissions of carbon comments, 67 and the Competitive dioxide, and regulating the tailpipe B. Scientific RelationshipBetween Enterprise Institute highlighted emissions of carbon dioxide controls Tailpipe Carbon Dioxide Emissions and NHTSA's discussion of compliance Fuel Economy Standards fuel economy." 49 CFR part 531, appx. measurement in agreeing that fuel B, section (a)(1)(E); 49 CFR part 533, NHTSA is finalizing its conclusion economy standards and greenhouse gas appx. B, section (a)(1)(E). 75 No that State requirements regulating emissions standards are inherently commenter disputed this statement. The tailpipe carbon dioxide emissions from related.68 CARB did not dispute this National Automobile Dealers automobiles are related to fuel economy factual statement, but pointed out that Association agreed, putting it this way: standards. The relationship between carbon dioxide emissions are only one "the physics and chemistry involved fuel economy standards and regulations part of the compliance testing regime with fuel economy and GHG emissions that limit or prohibit tailpipe carbon Congress approved-a fact that NHTSA standards are such that controlling fuel dioxide emissions from automobiles is a had already recognized in its proposal.69 economy controls GHGs and controlling matter of science and mathematics. As NHTSA explained in the proposal, as GHGs controls fuel economy." 76 It is Commenters did not and cannot dispute specified by EPCA, compliance with the also worth noting that technology the direct scientific link between CAFE standards is and has always been cannot reduce the amount of carbon tailpipe carbon dioxide emissions from based on the rates of emission of carbon automobiles and fuel economy. Thus, dioxide, carbon monoxide, and dioxide produced by combusting one State and local laws and regulations that hydrocarbons from covered vehicles, gallon of gas. Instead, only technology regulate such tailpipe emissions are but primarily on the emission rates of that reduces the amount of gas needed preempted under EPCA. carbon dioxide. 70 The role of carbon to drive one mile (fuel economy) will The relationship between carbon dioxide is approximately 100 times reduce the amount of carbon dioxide dioxide and fuel economy is described greater than the combined role of the generated per mile. in several statements in an appendix to other two relevant carbon exhaust These statements in the regulatory parts 531 and 533 that NHTSA is gases.71 appendix concerning the scientific finalizing in this document. Fourth, "[a]lmost all technologically relationship between automobile carbon First, "[a]utomobile fuel economy is feasible reduction of tailpipe emissions dioxide emissions and fuel economy directly and substantially related to of carbon dioxide is achievable through provide the foundation for NHTSA's automobile tailpipe emissions of carbon improving fuel economy, thereby preemption analysis. Due to this dioxide." 49 CFR part 531, appx. B, reducing both the consumption of fuel scientific relationship, which no section (a)(1)(A); 49 CFR part 533, appx. and the creation and emission of carbon commenter refuted, a regulation of B, section (a)(1)(A).6 1 No commenters dioxide." 49 CFR part 531, appx. B, tailpipe carbon dioxide emissions from disputed or otherwise specifically section (a)(1)(D); 49 CFR part 533, appx. automobiles that does not explicitly commented on this statement. B, section (a)(1)(D).72 The South Coast state that it is regulating fuel economy Second, "[c]arbon dioxide is the Air Quality Management District (South nevertheless has the effect of doing so. natural byproduct of automobile fuel Coast) commented that NHTSA consumption." 49 CFR part 531, appx. previously proposed, in 2008, adopting The label a State chooses to put on its B, section (a)(1)(B); 49 CFR part 533, similar regulatory text that used the regulations certainly is not dispositive appx. B, section (a)(1)(B). 62 One in a preemption analysis. See, e.g., Nat'l comment identified this as a correct 65 83 FR 42986, 43489 (Aug. 24, 2018). Meat Ass'n. v. Harris,565 U.S. 452, 464 66 statement,63 and another highlighted Alliance of Automobile Manufacturers, Docket (2012). One comment, from the this fact in noting NHTSA's No. NHTSA-2018-0067-12073. Northeast States for Coordinated Air longstanding and consistent view on 67 Fiat Chrysler Automobiles (FCA), Docket No. Use Management (NESCAUM), asserted NHTSA-2018-0067-11943. that "California's GHG standards do not preemption.64 No commenters disagreed 68 Competitive Enterprise Institute, Docket No. with this factual statement. NHTSA-2018-0067-12015. mention fuel economy or attempt to 69 See California Air Resources Board (CARB), 6183 FR 42986, 43489 (Aug. 24, 2018). Docket No. NHTSA-2018-0067-11873; 83 FR 73South Coast Air Quality Management District, 62Id. 42986, 43234 (Aug. 24, 2018). Docket No. NHTSA-2018-0067-11813. 63 Walter Kreucher, Docket No. NHTSA-2018- 7O See 83 FR 42986, 43234 (Aug. 24, 2018). 74Id. 0067-0444. 7171 FR 17566, 17655-56 (Apr. 6, 2006); 83 FR 7583 FR 42986, 43489 (Aug. 24, 2018). 64 Association of Global Automakers, Docket No. 42986, 43234 (Aug. 24, 2018). 76National Automobile Dealers Association, NHTSA-2018-0067-12032. 7283 FR 42986, 43489 (Aug. 24, 2018). Docket No. NHTSA-2018-0067-12064. 51316USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 14 of 61 regulate fuel economy." 77 To such evade preemption simply because it Massachusetts v. EPA, 549 U.S. 497, 532 comments, the agencies must ask addressed the purchase, rather than (2007). ourselves the age-old question: "What's manufacture, of a federally regulated Recent developments in California in a name?" and conclude "[t]hat which product). provide good examples of the need for we call a rose by any other name would a national standard and the problem C. Importance of One National Standard smell as sweet." 78 Arguments focused that Congress sought to address in on form, or worse-labels-over To ensure uniform national fuel enacting EPCA's preemption provision. substance are not persuasive. Moreover, economy standards, Congress After the agencies published the it is indisputable that EPCA preemption determined that it was appropriate to proposal, California amended its reaches beyond explicit regulations of preempt States and local governments regulations such that manufacturers are fuel economy and into regulations from adopting or enforcing laws or bound to comply with requirements "related to" fuel economy. The words regulations related to the Federal consistent with the no action alternative "related to" cannot be read out of the standards. Effectuating Congress's goal for model years 2021 through 2026,80 statute or narrowed in a way that requires NHTSA to address preemption. regardless of what the Federal standards undermines Congress's broad Preemption is necessary to the are ultimately adopted. Moreover, even preemption intent. effectiveness of NHTSA's existing and as to the existing Federal standard, It is a matter of undisputed fact that forthcoming fuel economy standards California's regulations are the more fuel a vehicle burns or and regulatory certainty into the future, impermissible under EPCA because consumes, the more carbon dioxide it specifically, one set of national only a Federal standard can apply emits. There is a necessary relation standards. Congress made clear, through nationally. State or local standards between the regulation of one side of the required comprehensive balancing necessarily apply at the State and local this equation and the regulation of the of factors and underlined by its level, and therefore are inherently other. In other words, improving fuel inclusion of an express preemption inconsistent with the nationwide economy has two inherently related provision, that State and local average standards pursuant to EPCA. benefits: Reducing fuel consumption requirements impede the national fuel See 49 U.S.C. 32901(a)(5)-(6), (13). and reducing carbon dioxide emissions. economy program. Thus, NHTSA is Likewise, State and local compliance State and local governments cannot exercising its authority in this regimes interfere with the national evade the preemptive sweep of EPCA by document, under 49 U.S.C. 32901 program of credits and shortfalls for emphasizing only one side of these through 32903, to promulgate nationwide fleet performance by making benefits and downplaying or ignoring regulations to protect the integrity of the compliance across the country the other when describing their national program. This confirms the inordinately complicated, inefficient, regulations. clear preemptive nature of NHTSA's and expensive. See id. 32903. To further illustrate the situation, standards, as stated in 49 U.S.C. 329219 Despite a widespread shared belief in consider types of regulations for a and provides additional clarity on the the importance of one national standard, swimming pool. If the pool has a hose scope of preemption, to carry out NHTSA's proposal on preemption on one side that is filling the pool and NHTSA's statutory authority to set received a mix of support and a hose on the other side that is draining nationally applicable standards. opposition in comments. Some the pool, you can regulate the water A consistent refrain throughout many commenters weighed in on preemption level in the pool by controlling either of the comments NHTSA received on its largely only to emphasize the hose. Limiting the amount of water preemption proposal was the need for importance of having a national 79 released by the inflow hose, is not itself one national standard. Preemption standard.81 Other commenters that a regulation of the outflow hose. But it provides for just that uniformity. supported the substance of the proposal is nonsensical to say that regulating the Indeed, that was the very purpose for agreed with NHTSA's analysis of both pool's inflow is not related to regulating Congress's including the express express and implied preemption, as its outflow. A regulation of either hose preemption provision in EPCA. well as the conclusion that both State necessarily affects the level of water in In enacting EPCA's preemption laws that limit and State laws that the same pool. The Supreme Court has provision, Congress explicitly prohibit carbon dioxide tailpipe recognized preemption should recognized the need to avoid a emissions from automobiles, or have the appropriately apply in such contexts. patchwork of requirements related to direct or substantial effect of doing so, See Rowe v. N.H. Motor Transp. Ass'n, fuel economy standards, and gave are preempted.82 On the other hand, 552 U.S. 364, 368, 72 (2008) (looking at NHTSA the exclusive authority to set those commenters that opposed the effect of regulation to determine it was and enforce fuel economy standards substance of the proposal asked NHTSA preempted even though "it tells with discrete and limited exceptions as to withdraw and not finalize any set forth in 49 U.S.C. 32919. NHTSA's regulatory text concerning shippers what to choose rather than 83 carrierswhat to do" where Federal law exclusive authority is exercised through preemption. Doing so would ignore preempted State laws "related to a joint rulemaking with EPA for the very the very purpose of EPCA's fuel price, route, or service of any motor reason that tailpipe carbon dioxide economy provisions and NHTSA's carrier . . . with respect to the emissions standards are directly and statutory obligation under EPCA: To transportation of property"); Engine substantially related to fuel economy balance statutory factors in order to Mfrs. Ass'n. v. South Coast Air Quality standards and apply concurrently to the Mgmt. Dist., 541 U.S. 246, 255 (2004) same fleet of vehicles. This joint action 80 83 FR 42986, 42990 tbl. I-4 (Aug. 24, 2018). 81 See, e.g., enables the Federal government to Toyota Motor North America, Docket (explaining that it "would make no No. NHTSA-2018-0067-12150. sense" to allow a State regulation to administer its overlapping obligations 82 See, e.g., Alliance of Automobile while avoiding inconsistency. See Manufacturers, Docket No. NHTSA-2018-0067- 77Northeast States for Coordinated Air Use 12073; Competitive Enterprise Institute, Docket No. Management (NESCAUM), Docket No. NHTSA- 79 See, e.g., Alliance of Automobile NHTSA-2018-0067-12015. 2018-0067-11691. Manufacturers, Docket No. NHTSA-2018-0067- 83 See, e.g., Joint Submission from the States of 78W. Shakespeare, Romeo & Juliet, 1I, ii (47-48) 12073; Association of Global Automakers, Docket California et al. and the Cities of Oakland et al., (1597). No. NHTSA-2018-0067-12032. Docket No. NHTSA-2018-0067-11735. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 15 of 6151317 establish standards that are "the accordance with the statutory prior to the 2012 rulemaking), as well as maximum feasible average fuel economy requirements.86 Even identical NHTSA's own silence on this issue in level that the Secretary decides the standards interfere with the national recent years, are sowing confusion, manufacturers can achieve in that program by imposing requirements not emphasizing the need for the clarity model year." 84 NHTSA disagrees with applicable to nationwide fleets and provided by this final rule affirmatively the comments that ask it to withdraw its impose compliance regimes inconsistent establishing One National Program. 90 proposal and not finalize any regulatory with EPCA. See, e.g., 49 U.S.C. 32903 D. NHTSA's FinalRule Provides Clarity text on preemption. Given the present (establishing specific requirements for and Certainty on EPCA Preemption circumstances, failing to address this earning and using credits based on issue amounts to ignoring the existence nationwide average fuel economy This final rule provides needed clarity of EPCA's preemption provision, and performance). on the scope of EPCA preemption. allowing for State and local California's recent action also NHTSA is adopting regulatory text, requirements that interfere with demonstrates disregard for NHTSA's including a detailed appendix, in NHTSA's statutory duty to set mandate to set standards in no more addition to discussing this issue in the nationally consistent fuel economy than 5 model year increments. 87 To preamble to the rule, specifically to standards. avoid inconsistent State standards, provide clarity on EPCA's preemption The rule NHTSA is adopting in this California's regulatory change would provision. document, under its authority to require NHTSA to adopt the most NHTSA rejects the assertion advanced implement a national automobile fuel stringent of nine regulatory alternatives in one comment that NHTSA did not economy program in 49 U.S.C. 32901 it considered in the proposal.88 NHTSA provide notice and a fair opportunity to through 32903, will ultimately provide did not bind itself in any way to that comment on its interpretation of EPCA needed certainty concerning preemption regulatory alternative in its 2012 final preemption.91 Any such suggestion is into the future. While EPCA's rule, and to do so would have been negated by the host of commenters that preemption provision has been in place contrary to law.89 addressed the issue of preemption in for decades, the present circumstances Automakers must comply with the response to the proposal. NHTSA demonstrate the need for greater clarity Federal fuel economy and GHG proposed codifying its preemption on this issue. emissions requirements, and do so at interpretation in parts 531 and 533, and NHTSA's statutory role is to set significant cost. States like California all commenters were explicitly asked to nationwide standards based on a that do not abide by the constraints of comment on the specific proposed reasoned balancing of statutory factors. Federal law, and instead set regulatory text as well as on the State and local requirements-unbound inconsistent or even duplicative explanation of NHTSA's interpretation by these considerations-undermine requirements related to fuel economy set out in the preamble to the NPRM. NHTSA's ability to set standards standards unjustifiably increase NHTSA also disagrees with a applicable across the entire country. manufacturers' compliance costs, which comment from the California Air NHTSA is obliged to set standards at must be either passed along to Resources Board (CARB) that asserted "the maximum feasible average fuel consumers or absorbed by the industry. the proposal was not clear on the scope economy level that the Secretary Clarity on preemption is therefore of preemption.92 The regulatory text decides the manufacturers can achieve essential to ensure the industry has the articulates the boundaries of both in that model year." 49 U.S.C. 32902(a). ability to efficiently expend its express and implied preemption, with The regulation NHTSA is finalizing in resources to comply with the nationally appropriate limitation to State or local this document implements that applicable standards determined by the laws or regulations that: (1) Regulate or authority in 49 U.S.C. 32902 by Federal government in light of the prohibit tailpipe carbon dioxide clarifying the State requirements that Federal statutory factors that must be emissions from automobiles, or (2) have impermissibly interfere with its balanced, without the need to separately the direct or substantial effect of statutory role to set nationally account for or comply with State or regulating or prohibiting tailpipe carbon applicable standards. As explained in local requirements. the proposal, as a practical matter, State While it is of course ideal for States 90 As described in the proposal, NHTSA's views and local actors would generally only to independently abide by the on preemption are longstanding. However, NHTSA has not directly addressed preemption in its most set requirements that have the effect of constraints of Federal law, this does not recent CAFE rulemakings. South Coast disputes that requiring a higher level of average fuel reflect the current state of affairs. NHTSA's views on preemption are longstanding, economy (lest their standards lack NHTSA's awareness of laws and pointing to legal and factual developments since. 5 impact).8 That supposition has now regulations already in place, as well as South Coast Air Quality Management District, been demonstrated by California's Docket No. NHTSA-2018-0067-11813. That the public comments it received in NHTSA has not opined on developments does not preemptive action to effectively set response to its proposal, confirm the mean that its views have changed. South Coast also higher standards than the Federal need for additional clarity on the points to some wording changes to argue that standards, should the forthcoming final boundaries of EPCA preemption. NHTSA has shifted positions. NHTSA disagrees. It SAFE rule finalize anything lower than has consistently held the position that State Wrongly decided decisions by district regulation of tailpipe greenhouse gas emissions the no action alternative described in courts in California and Vermont from automobiles is preempted, and South Coast the NPRM for model years 2021 through (appeals of which were abandoned as a has not identified any statements to the contrary. 2026. This state of regulatory condition of the negotiated agreement In any event, the fact that NHTSA has not inconsistency-and even the potential addressed EPCA preemption in its most recent rulemakings highlights the need to address the for such inconsistency-is anathema to 86 See 49 U.S.C. 32902(a), 32919(a). issue without further delay. 91 the express terms and purposes of 87 See id. 32902(a), (b)(3)(B). Joint Submission from the States of California EPCA, which does not even permit 88 See Cal. Code Regs. tit. 13, section 1961.3(c); et al. and the Cities of Oakland et al., Docket No. States to set fuel economy standards see 83 FR 42986, 42990 tbl. I-4 (Aug. 24, 2018) NHTSA-2018-0067-11735. (listing augural standards as baseline/no action 92 California Air Resources Board (CARB), Docket identical to those set by NHTSA in alternative, and eight other alternatives under No. NHTSA-2018-0067-11873; Joint Submission consideration). from the States of California et al. and the Cities of 8449 U.S.C. 32902(a), (f). 89 See 49 U.S.C. 32902(b)(3)(B); 77 FR 62624, Oakland et al., Docket No. NHTSA-2018-0067- 85 83 FR 42986, 43238 (Aug. 24, 2018). 62627 (Oct. 15, 2012). 11735. 51318USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 16 of 61 dioxide emissions from automobiles or standards" are preempted. The words proposal that only a portion of a law or automobile fuel economy. In the "related to" have meaning and cannot regulation would be preempted, where proposal, NHTSA provided examples93 of be read out of the statute. To the extent possible. This would be the case if the laws that would not be preempted. that questions of interpretation remain law or regulation combined multiple CARB did not identify any examples of about the scope of preemption, that is a severable elements that were allowable laws where additional clarity was consequence of the statute, and is far and not allowable, such as with a needed. from unique-particularly with respect regulation of both vehicular refrigerant It should not be difficult for States or to the "related to" language, which leakage and tailpipe carbon dioxide local governments to ascertain whether Congress has used in multiple emissions-refrigerant leakage their laws or regulations regulate or contexts. 10 1 The Supreme Court has requirements could remain in place prohibit tailpipe carbon dioxide opined on the meaning of similar terms. while tailpipe carbon dioxide emissions emissions. As NHTSA explained in the However, NHTSA recognizes the regulations would necessarily be proposal and reiterates in this concerns about the appropriate preempted. document, both requirements specific to limitations of preemption. NHTSA rejects the argument made by tailpipe carbon dioxide emissions from Notwithstanding the broad sweep of certain commenters that the automobiles and those that address all EPCA preemption, NHTSA intends to presumption against preemption applies tailpipe greenhouse gas emissions from assert preemption only over State or in this context. 10 3 The presumption is automobiles are preempted, given that local requirements that directly or not appropriate given EPCA's express carbon dioxide emissions constitute the substantially affect corporate average statutory preemption provision. See overwhelming majority of those fuel economy standards. Puerto Rico v. Franklin Cal. Tax-Free emissions. 94 Likewise, ZEV mandates Through its adoption of specific Trust, 136 S.Ct. 1938, 1946 (2016) 95 are also preempted. regulatory text in this document, (explaining that "because the statute NHTSA also does not believe it NHTSA is providing guidance on the 'contains an express pre-emption should be difficult for States or local boundary set by Congress, as well as clause,' we do not invoke any governments to determine if their laws under principles of implied preemption. presumption against pre-emption but or regulations have the direct or Notably, NHTSA has not concluded that instead 'focus on the plain wording of substantial effect of regulating or implied preemption broadens the scope the clause, which necessarily contains prohibiting tailpipe carbon dioxide of preemption established by Congress. the best evidence of Congress' pre- emissions from automobiles or As NHTSA recognized in its proposal, emptive intent.'") (quoting Chamber of automobile fuel economy. 96 To aid in some greenhouse gas emissions from Commerce of United States of Am. v. this effort, in the proposal, NHTSA automobiles have no relation to fuel Whiting, 563 U.S. 582, 594 (2011)). described requirements that would not economy and therefore may be regulated NHTSA reaffirms the view that be preempted because they have only by States or local governments without EPCA's express preemption provision is incidental impact on fuel economy or running afoul of EPCA preemption. broad and clear. NHTSA's review and carbon dioxide emissions. 97 The NHTSA provided examples of State or assessment of comments has not examples NHTSA provided were child local requirements that are not changed its view. Some comments seat mandates and laws governing preempted. It also specifically invited noted that the statute specifically vehicular refrigerant leakage.98 comment on the extent to which State preempts laws or regulations related to Moreover, contrary to assertions in or local requirements can have some fuel economy standards.104They assert some comments, NHTSA's adoption of incidental impact on fuel economy or that States and local governments are regulatory text does provide a limiting carbon dioxide emissions without being unconstrained by EPCA preemption in principle 99 and is not overbroad.100 related to fuel economy standards, and regulating future model year vehicles, Congress set the extraordinarily broad thus are not preempted. NHTSA did not before they are covered by a fuel boundaries of preemption in EPCA, receive any directly responsive economy standard issued by NHTSA. where it specified that State and local comments regarding this issue, NHTSA disagrees. laws "related to fuel economy including from State and local EPCA preempts State and local laws government commenters, suggesting and regulations that relate to: (1) Fuel 9383 FR 42986, 43235 (Aug. 24, 2018). that they do not currently have economy standards, or (2) average fuel 9 4 Id. at 43234. questions about how preemption would economy standards for automobiles 95 See id. at 43238-39. apply to their laws or regulations.102 covered by an average fuel economy 96 South Coast argued that EPCA preemption As an additional limiting principle, standard under 49 U.S.C. Chapter 329. would not reach possible State and local NHTSA reiterates the statement in its Currently, automobiles through model requirements concerning lease arrangements or requirements for used vehicles. South Coast Air year 2021 are covered by an average fuel Quality Management District, Docket No. NHTSA- 101See Rowe v. N.H. Motor Transp. Ass'n, 552 economy standard under Chapter 2018-0067-11813. NHTSA does not agree. EPCA U.S. 364, 370-73 (2008); Am. Airlines v. Wolens, 329.105 NHTSA will continue setting preempts requirements related to fuel economy 513 U.S. 219, 226-27 (1995); Shawv. Delta Airlines, standards for future model years, standards or average fueleconomy standards for Inc., 463 U.S. 85, 97 (1983). automobiles covered by an average fuel economy 102 Some commenters did assert that California's pursuant to the mandate in 49 U.S.C. standard under EPCA. If a State requirement falls greenhouse gas emissions standards or ZEV 32902(a) that "[a]t least 18 months within this scope, it is preempted. For example, a mandates have only an incidental impact on fuel State could not prohibit dealers from leasing economy, or that NHTSA was not clear why those 103 See California Air Resources Board (CARB), requirements have more than an incidental impact automobiles or selling used automobiles unless they Docket No. NHTSA-2018-0067-11873; Center for meet a fuel economy standard. on fuel economy. California Air Resources Board Biological Diversity et al., Docket No. NHTSA- (CARB), Docket No. NHTSA-2018-0067-11873; 97 83 FR 42986, 43235 (Aug. 24, 2018). 2018-0067-12000; South Coast Air Quality Northeast States for Coordinated Air Use 98 Id. Management District, Docket No. NHTSA-2018- Management (NESCAUM), Docket No. NHTSA- 99 0067-11813. Joint Submission from the States of California 2018-0067-11691; South Coast Air Quality 104 South Coast Air Quality Management District, et al. and the Cities of Oakland et al., Docket No. Management District, Docket No. NHTSA-2018- NHTSA-2018-0067-11735. 0067-11813. NHTSA disagrees. It discussed these Docket No. NHTSA-2018-0067-11813; see also 0 0 1 Id.; California Air Resources Board (CARB), issues in detail in parts b, f, and g of the preemption Joint Submission from the States of California et al. Docket No. NHTSA-2018-0067-11873; South Coast discussion of the proposed rule and incorporates and the Cities of Oakland et al., Docket No. Air Quality Management District, Docket No. those discussions here. 83 FR 42986, 43234, 37-39 NHTSA-2018-0067-11735. NHTSA-2018-0067-11813. (Aug.24, 2018). 105See 77 FR 62624, 62637 (Oct. 15, 2012). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 17 of 6151319 before the beginning of each model year, about the future, or ignoring them before "related to" in statutory preemption the Secretary of Transportation shall knowing the Federal standards that will provisions. There are many Supreme prescribe by regulation average fuel eventually apply and acting at risk of Court decisions that support the breadth economy standards for automobiles enforcement by non-Federal actors. of that language beyond those manufactured by a manufacturer in that Moreover, different States could impose specifically cited in the proposal.l ° For model year." 106 NHTSA prescribes different and conflicting fuel economy example, in Rowe, the Court recognized "average fuel economy standards for at requirements on manufacturers for that a State statute that forbid certain least 1, but not more than 5, model future model years, a result directly at retailers from employing a delivery years." 49 U.S.C. 32902(b)(3)(B). State odds with the single national standard service unless it followed certain and local requirements that address established by EPCA. Any of these delivery procedures was preempted by automobiles beyond model year 2026 scenarios demonstrates that the position the Federal Aviation Administration are therefore preempted if they relate to that EPCA preemption does not reach Authorization Act, which preempted "fuel economy standards" that NHTSA regulation of model year vehicles not States from enacting or enforcing laws is required to establish in the future. To currently covered by a NHTSA standard "related to a price, route, or service of conclude otherwise would be to make is flawed. State or local requirements any motor carrier." Rowe, 552 U.S. at the impermissible assumption that related to fuel economy standards for 368, 71-73. The Court recognized that NHTSA will not carry out Congress's any model year automobiles are the State law was directed at shippers command. preempted. rather than carriers, but found that the The regulation NHTSA is finalizing in The regulatory text and preamble effect of the requirements impacted this document implements that discussion clearly articulates NHTSA's carriers. Id. at 372. The Court explained authority in 49 U.S.C. 32902 by making views on the meaning of "related to" in that State laws "whose 'effect' is clear that State and local requirements EPCA's express preemption provision, 'forbidden' under federal law are those that relate to fuel economy standards for which are confirmed following with a 'significant impact' on carrier future model year vehicles conflict with NHTSA's review and assessment of rates, routes or services." Id. at 375 NHTSA's ability to set nationally comments. As discussed in the (emphasis in original). Likewise, here, applicable standards for those vehicles proposal, EPCA is not unique in using regulation of tailpipe carbon dioxide in the future and thus are impliedly the phrase "related to" to set the scope emissions has a direct and undeniably preempted. Manufacturers make design of preemption.' 0 7 NHTSA described substantial effect on fuel economy. decisions well in advance of prior Supreme Court case law However, NHTSA, of course, agrees production, as Congress recognized by interpreting this phrase as broad and that "related to" is not unlimited."' adding "lead time" provisions to the including such conceptual relationships NHTSA specifically discussed the statute. State and local requirements for as having an "association with" or limitations of preemption in its automobiles not yet covered by a "connection to." In its comments, South proposal, which only seeks to preempt NHTSA standard could force Coast asserted that NHTSA's discussion State or local requirements that directly manufacturers into plans that are not was "legally erroneous" because it did or substantially affect corporate average economically practical or otherwise not include "discussion and analysis" fuel economy. NHTSA also provided inconsistent with EPCA's statutory of a line of Supreme Court cases that specific examples of State laws and factors-since States and local began with New York State Conference regulations that would not be governments are not bound by those of Blue Cross v. Travelers Ins. Co., 514 preempted, as well as clearly considerations. By the time future U.S. 645 (1995). 108 South Coast's articulating some that are preempted. As model year vehicles are produced, they criticism is unfounded; NHTSA directly discussed above, the regulatory text will be covered by a NHTSA standard. recognized the Travelers line of cases NHTSA is adopting in this document is If States or local governments were which look to the objectives of the appropriately limited and consistent permitted to issue regulations related to statute as a guide to the scope of with the scope of preemption fuel economy for future model year preemption. See Travelers, 514 U.S. at established by Congress. vehicles, manufacturers would at least 656. In the proposal, NHTSA With respect to implied preemption, act at risk of running afoul of those non- specifically applied this analysis to the NHTSA agrees with comments that Federal regulations. At least some CAFE context and cited a 1997 case assert it is a fact-driven analysis.112 manufacturers would undoubtedly feel quoting Travelers. 9 The Travelers line However, NHTSA disagrees that there compelled to conform with such non- of cases supports NHTSA's position on was an insufficient factual record for it Federal regulations until the Federal to evaluate the conflict either at the time preemption. As NHTSA explained in 1 13 government sets its own standards. Even the proposal, EPCA's preemption of the proposal or now. NHTSA is if non-Federal regulations are not provision demonstrates that one of well aware of State regulations of ultimately enforceable as to produced Congress's objectives was to create a tailpipe greenhouse gas emissions vehicles (since a Federal fuel economy single set of national fuel economy (including carbon dioxide) and ZEV standard will be adopted, in time), they standards. The language Congress mandates, and described several of clearly conflict with the congressionally enacted preempts all State and local these in the proposal. The foundational imposed constraint of issuing standards laws and regulations that relate to fuel 110See, e.g., Rowe v. N.H. Motor Transp. Ass'n, for not more than 5 model years. Such economy standards, and does not 552 U.S. 364, 367-72 (2008). far-reaching regulations are based on exempt even State requirements that are predictions about the future that are l As the Supreme Court has stated, "the breadth identical to Federal requirements. of the words 'related to' does not mean the sky is inevitably less reliable the further in Moreover, NHTSA's proposal was not the limit." Dan's City Used Cars, Inc. v. Pelkey, 569 time they reach. Manufacturers are intended as a comprehensive recitation U.S. 251, 260 (2013). therefore put in an untenable position of of all case law addressing the use of 112 California Air Resources Board (CARB), either planning towards State and local Docket No. NHTSA-2018-0067-11873; Joint regulations based on potentially Submission from the States of California et al. and 107 83 FR 42986, 43233 (Aug. 24, 2018). the Cities of Oakland et al., Docket No. NHTSA- outdated or unrealistic expectations 108 South Coast Air Quality Management District, 2018-0067-11735. Docket No. NHTSA-2018-0067-11813. 13 California Air Resources Board (CARB), 10649 U.S.C. 32902(a) (emphasis added). 109 83 FR 42986, 43233 (Aug. 24, 2018). Docket No. NHTSA-2018-0067-11873. 51320USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 18 of 61 factual analysis involves the scientific regulation adopted in this document is NHTSA is finalizing its conclusion that relationship between automobile fuel entitled to deference.118 As explained in the standards for model year 2021 economy and automobile tailpipe the proposal, NHTSA is the expert through 2026 automobiles are emissions of carbon dioxide. NHTSA agency given authority to administer the independent of and severable from the discussed this scientific relationship in Federal fuel economy program and has decision NHTSA is finalizing in this detail. No commenter contested the expert authority to interpret and apply document on EPCA preemption. scientific and mathematical relationship the requirements of EPCA, including Moreover, given the need for clarity on between them. preemption. See Medtronic, Inc. v. Lohr, preemption, and in order to give effect Contrary to CARB's contention in its 518 U.S. 470 (1996) ("Because the FDA to existing standards established comments, the fact that NHTSA is the federal agency to which Congress pursuant to 49 U.S.C. 32902, NHTSA is acknowledged that some State has delegated its authority to implement issuing this final rule now before requirements that incidentally affect the provisions of the Act, the agency is making a final determination on the greenhouse gas emissions are not uniquely qualified to determine whether standards portion of the proposal. preempted does not demonstrate that a particular form of state law 'stands as E. Direct and SubstantialRelationship there is an insufficient record for an obstacle to the accomplishment and Between ZEV Mandates and Fuel finding that other laws do pose a execution of the full purposes and Economy Standards conflict to NHTSA's statutory role to set objectives of Congress,' Hines v. nationwide fuel economy standards for Davidowitz, 312 U.S. 52, 67, 61 S. Ct. NHTSA is also finalizing its automobiles.' 14 To the contrary, NHTSA 399, 404, 85 L. Ed. 581 (1941), and, conclusion that a State law or regulation carefully considered and acknowledged therefore, whether it should be pre- that either explicitly prohibits tailpipe the limitations of EPCA preemption by empted."); see also Nat'l Rifle Ass'n v. carbon dioxide emissions from discussing a variety of types of laws, Reno, 216 F.3d 122 (D.C. Cir. 2000) automobiles or has the direct or and providing specific examples. (rejecting argument that Attorney substantial effect of doing so is NHTSA also disagrees with the claim General lacked authority to issue preempted, both pursuant to the express made in some comments that it does not regulation that she described as preemption provision in 49 U.S.C. have delegated authority to issue a clarifying that certain State 32919 and implied preemption, as an regulation on this topic, and is not owed requirements were not preempted by obstacle to NHTSA's national program deference or weight for its regulation Federal law). This is particularly true pursuant to 49 U.S.C. 32901-32903. implementing EPCA's express given the scientific nature of the As explained in greater detail in the preemption provision or the conflict relationship between fuel economy and proposal, carbon dioxide emissions constitute the overwhelming majority of resulting from State or local laws or greenhouse gas emissions. See Geier v. 1 1 5 tailpipe carbon emissions. 20 The only regulations. 1 Congress gave the Am. Honda Motor Co., Inc., 529 U.S. Secretary of Transportation express 861 (2000) ("Congress has delegated to feasible way of eliminating tailpipe authorization to prescribe regulations to DOT authority to implement the statute; carbon dioxide emissions altogether is carry out her duties and powers. 49 the subject matter is technical; and the to eliminate the use of fossil fuel. Thus, U.S.C. 322(a).116 NHTSA has delegated relevant history and background are regulations that require a certain authority to carry out the Secretary's complex and extensive. The agency is number or percentage of a authority under Chapter 329 of Title 49, likely to have a thorough understanding manufacturer's fleet of vehicles sold in which encompasses EPCA's preemption of its own regulation and its objectives a State to be ZEVs that produce no provision, as well as EISA."1 7 NHTSA and is 'uniquely qualified' to carbon dioxide tailpipe emissions therefore has clear authority to issue comprehend the likely impact of state necessarily affect the fuel economy this regulation under 49 U.S.C. 32901 requirements."). achieved by the manufacturer's fleet as through 32903 to effectuate a national NHTSA is also finalizing its view that well as the manufacturer's strategy to automobile fuel economy program its regulation concerning EPCA comply with applicable standards, and unimpeded by prohibited State and preemption is independent and are therefore preempted under EPCA. local requirements. As explained here, severable from any particular CAFE These regulations therefore have just as the statute is clear on the question of standards adopted by NHTSA. NHTSA's a direct and substantial impact on preemption, and NHTSA must carry it implementation of its authority to set corporate average fuel economy as out. See Coventry Health Care of nationally applicable fuel economy regulations that explicitly eliminate Missouri, Inc. v. Nevils, 137 S. Ct. 1190, standards under 49 U.S.C. 32902, by carbon dioxide emissions, and are 1193 n.3 (2017) (holding that clarifying the scope of preemption, is therefore preempted. NHTSA described preemption applies and "the statute separate from its decision on the types of ZEV mandates in detail in its alone resolves this dispute"). However, appropriate standards for any given proposal, including California's ZEV to the extent there is any ambiguity, model years. No commenter disagreed mandate, which has been adopted by NHTSA is the expert agency and its that this portion of the proposed rule is ten other States.121 severable. The Alliance of Automobile ZEV mandates force the development 1141d. Manufacturers agreed, noting case law and commercial deployment of ZEVs, 115 Id.; Centerfor Biological Diversity etal., stating that whether a regulation is irrespective of the technological Docket No. NHTSA-2018-0067-12000; Joint severable depends on the agency's feasibility or economic practicability of Submission from the States of California et al. and intent and whether the remainder of the doing so. The Alliance of Automobile the Cities of Oakland et al., Docket No. NHTSA- Manufacturers commented that this 2018-0067-11735; South Coast Air Quality regulation may still function Management District, Docket No. NHTSA-2018- sensibly.' 9 Both these considerations interference with NHTSA's balancing of 0067-11813. support severability here. Given the lack 11649 U.S.C. 322(a) specifically states: "The 120 83 FR 42986, 43234 (Aug. 24, 2018). Secretary of Transportation may prescribe of any comments to the contrary, 121 See id. at 43239. At the time of the proposal, regulations to carry out the duties and powers of the nine States had adopted California's ZEV mandate. Secretary. An officer of the Department of 118 See, e.g., Chevron USA, Inc. v. Natl Res. Since that time, a tenth State-Colorado-has also Transportation may prescribe regulations to carry Defense Council, Inc., 467 U.S. 837, 843-45 (1984). done so. https://www.colorado.govlpacificlcdphel out the duties and powers of the officer." 119 Alliance of Automobile Manufacturers, Docket aqcc (indicating that ZEV standards were adopted 11749 CFR 1.95(a), (j). No. NHTSA-2018-0067-12073. on August 16, 2019). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 19 of 6151321 statutory factors and forced adoption of manufacturers must satisfy ZEV amendment made by this Act, nothing 5 specific design approaches are grounds mandates in each State individually.12 in this Act or an amendment made by for finding ZEV mandates preempted.122 NHTSA also disagrees with a this Act supersedes, limits the authority NHTSA agrees. comment that argued ZEV mandates are provided or responsibility conferred by, not preempted because the definition of In setting fuel economy standards, or authorizes any violation of any fuel economy in EPCA is in reference to among the factors that NHTSA must provision of law (including a gasoline or equivalent fuel.12 6 EPCA regulation), including any energy or consider are technological feasibility preempts State and local requirements environmental law or regulation." 130 and economic practicability. 49 U.S.C. related to fuel economy standards. That As described in the proposal, EISA's 32902(f). NHTSA is also required to set ZEV mandates are not themselves savings clause does not expand any pre- performance-based standards, and not expressed as mile-per-gallon standards existing authority. Instead, the clause design mandates.123 See 49 U.S.C. for fossil-fuel powered vehicles is not expressly states that it did not impose 32902(b)(2). These considerations are at dispositive. NHTSA explained the a new limitation on such authority. By odds with ZEV mandates. relationship between ZEV mandates and its plain text, EISA also does not NHTSA disagrees with comments that fuel economy standards in detail in the authorize any violation of any provision expressed the view that ZEV mandates proposal and reiterates that discussion of law. This includes EPCA's express are not related to fuel economy here.127 preemption clause. Thus, activities standards because ZEVs emit no criteria Many commenters expressed support prohibited by the express preemption pollutants or greenhouse gases. 1 2 4 Just for ZEV mandates as matter of policy.128 clause before EISA, such as State laws as a State may not require a specific NHTSA does not take issue with those related to fuel economy standards, level of tailpipe carbon dioxide policy objectives to the extent they do continued to be prohibited after EISA. emissions from automobiles, since not conflict with EPCA or otherwise The text of the savings clause is what doing so effectively sets a specific level impermissibly interfere with the Federal controls its meaning, not statements by of fuel economy, a State may not regulation of fuel economy. NHTSA individual Members of Congress. South prohibit tailpipe carbon dioxide notes that States and local governments Coast claims that NHTSA did not emissions from automobiles. That is the are able to continue to encourage ZEVs discuss such statements in detail, in many different ways, such as through including statements by Senator equivalent of setting a specific 3 emissions level-zero, which also investments in infrastructure and Feinstein.1 1 NHTSA did recognize in incentives.129 prohibits the use of fossil fuel. In fuel appropriately tailored the proposal that the Congressional economy terms, that is akin to requiring States and local governments cannot Record contains statements by certain a vehicle to having the maximum adopt or enforce regulations related to Members of Congress about their conceivable level of fuel economy. A fuel economy standards, which include individual views, but explained that prohibition on ozone-forming emissions ZEV mandates, but they are able to such statements lack authority. As has the same effect, since the only pursue their policy preferences, as long NHTSA explained in the proposal, such vehicles capable of emitting no ozone- as the manner in which they do so does statements cannot expand the scope of not conflict with Federal law. forming emissions are vehicles that do the savings clause or clarify it. not use fossil fuels. As NHTSA F. EISA Did Not Narrow or Otherwise Individual Members, even those who explained, this type of regulation poses Alter EPCA Preemption may have played a lead role in drafting a direct conflict with EPCA, particularly a particular bill, cannot speak for the NHTSA reiterates, as it discussed in body of Congress as a whole.132 NHTSA as it relates to requiring a percentage of the proposal, that EISA did not narrow technological fleet penetration- interprets the statutory language based the express preemption clause in 49 on the words actually adopted by both represented by credits or actual U.S.C. 32919. In fact, EISA did not alter vehicles-that an automaker must Houses and signed by the President. EPCA's express preemption clause in NHTSA likewise does not find distribute into a State. ZEV mandates any way. As a factual matter, Congress persuasive the argument that Congress force investment in specific technology neither amended or nor repealed did not enact additional statutory (battery electric and fuel cell EPCA's preemption clause with the language in EISA preempting California technology) rather than allowing enactment of EISA. EISA's savings from regulating tailpipe greenhouse gas manufacturers to improve fuel economy clause did not amend EPCA. The by whatever technological path they savings clause, codified at 42 U.S.C. 130 One commenter pointed out that the proposal choose, allowing them to pursue more 17002, states: "Except to the extent did not include the clause before the first comma cost-effective technologies that better expressly provided in this Act or an when it quoted the language of the savings reflect consumer demand, as is the case provision. South Coast Air Quality Management District, Docket No. NHTSA-2018-0067-11813. under the CAFE program. ZEV 125 83 FR 42986, 43239 (Aug. 24, 2018); see However, NHTSA disagrees with the commenter mandates also create an even more Competitive Enterprise Institute, Docket No. that the introductory clause has a substantive fractured regulatory regime. As NHTSA NHTSA-2018-0067-12015. impact on this issue. That clause states: "Except to 126California Air Resources Board (CARB), explained in the proposal, the extent expressly provided in this Act or an Docket No. NHTSA-2018-0067-11873. amendment made by this Act..."But, EISA did 127See 83 FR 42986, 43238-39 (Aug. 24, 2018). not expressly authorize States to regulate or 122Alliance of Automobile Manufacturers, Docket 128 National Coalition for Advanced prohibit tailpipe greenhouse gas emissions from No. NHTSA-2018-0067-12073. Transportation (NCAT), Docket No. NHTSA-2018- automobiles. 123South Coast asserts that ZEV mandates are 0067-11969; Union of Concerned Scientists, Docket 131 South Coast Air Quality Management District, performance based because any vehicle meeting the No. NHTSA-2018-0067-12039. Docket No. NHTSA-2018-0067-11813. 3 2 requirements can be certified as a ZEV. South Coast 129Certain incentives are preempted by EPCA. 1 N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 942- Air Quality Management District, Docket No. See Metro. Taxicab Bd. of Trade v. City of New 43 (2017) ("Passing a law often requires NHTSA-2018-0067-11813. But, it is inherent that York, 615 F.3d 152 (2d Ch. 2010) (holding that New compromise, where even the most firm public the requirements-ZEV means zero-emissions York City rule that incentivized hybrid taxis by demands bend to competing interests. What vehicle-dictate a particular design. In any event, allowing taxi owners to charge more for the lease Congress ultimately agrees on is the text that it for the reasons described above, ZEV mandates are of hybrid vehicles were "based expressly on the enacts, not the preferences expressed by certain related to fuel economy standards however framed. fuel economy of a leased vehicle, [and] plainly fall legislators. . . .[F]loor statements by individual 124 South Coast Air Quality Management District, within the scope of the EPCA preemption legislators rank among the least illuminating forms Docket No. NHTSA-2018-0067-11813. provision."). of legislative history." (citations omitted)). 51322USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 20 of 61 emissions from automobiles. A authorizing violation of any law. States requirements would be applicable to comment from three Senators provides and local governments had no and could be enforced against documents related to potential preexisting authority or responsibility to manufacturers in contractual proposals to do so. 133 There are many set requirements related to fuel procurement relationships with States reasons for Congress not to adopt economy standards. Such requirements or local governments. In any event, this proposals set forward by one interest are void ab initio. The savings provision provision concerning a limited set of group or another, including, of course, also does not purport to expand pre- vehicles (Federal government vehicles) because they were unnecessary. That is existing authority or responsibility, nor is not grounds for undoing the uniform the case here where EPCA's preemption did Congress amend in any way the national fuel economy standards provision already prevented States from broad express preemption provision in applicable to all light vehicles as adopting and enforcing requirements EPCA when it enacted EISA. Moreover, prescribed by Congress in EPCA. related to fuel economy standards. implied preemption as applied here is In enacting this provision in EISA, Given the words of the savings clause, not a limitation based in EISA or the Congress required the EPA NHTSA rejects the argument made by Clean Air Act. Implied preemption is Administrator to "issue guidance South Coast that the "EISA saving instead based on the Secretary of identifying the makes and model provision designedly narrows EPCA's Transportation's preexisting number of vehicles that are low express preemption provision, and responsibility under EPCA to balance greenhouse gas emitting vehicles" to aid Congress intended this result." 134 The statutory factors in setting nationwide in identifying vehicles for the Federal savings clause did not amend the fuel economy standards for automobiles. government's own fleet. 42 U.S.C. preemption provision in EPCA. The provision in EISA concerning 13212(f)(3)(A). The provision requiring Moreover, what the savings clause minimum requirements for Federal the Administrator to "take into account actually says is that it does not limit government vehicles also does not the most stringent standards for vehicles authority. If a regulation is preempted change NHTSA's view. Several greenhouse gas emissions" provides a by EPCA, a State has no authority to comments referenced this provision, consideration for that guidance. Id. enforce it, and EISA did not change that which states that the EPA 13212(f)(3)(B). It is not plausible that status quo. If Congress wanted to amend "Administrator shall take into account Congress intended this limited the broad and clear express preemption the most stringent standards for vehicle provision concerning guidance on provision in EPCA, it could have and greenhouse gas emissions applicable to Federal government procurement to would have done so. It did not. and enforceable against motor vehicle disrupt the longstanding express Because NHTSA disagrees that States manufacturers for vehicles sold preemption provision in EPCA. could permissibly regulate tailpipe anywhere in the United States" in Further, to read this procurement- greenhouse gas emissions from identifying vehicles for the Federal related provision as somehow showing government fleet. 42 U.S.C. that Congress intended to allow automobiles prior to EISA, it also 137 disagrees with comments that argue that 13212(f)(3)(B). Commenters argued California to establish laws related to Congress "preserved" the ability of that the phrase "the most stringent fuel economy standards is unreasonable, States to do so through the savings standards" would be superfluous if only as doing so would put California in an clause (or, alternatively, that efforts to EPA were allowed to set standards and, unequal setting vis-a-vis other states, "revoke" such in addition, if EPA had not set any such and that would not make sense in this 13 5 preexisting authority failed). standards at the time EISA was enacted. context. "The Act also differentiates NHTSA also disagrees with a On the contrary, this provision is fully between the States, despite our historic comment by South Coast that argues consistent with NHTSA's view of tradition that all the States enjoy 'equal that EISA's savings provision forecloses preemption, based on the plain text of sovereignty.'" Northwest Austin implied preemption. 1 36 The specific EPCA's express preemption provision. Municipal Utility DistrictNumber One words that South Coast points to are the The language in the EISA provision v. Holder, 557 U.S. 193, 203 (2009). A opening clause: "Except to the extent specifically indicates that it applies only "departure from the fundamental expressly provided in this Act or an to "the most stringent standards... principal of equal sovereignty requires a amendment made by this Act." This enforceable against motor vehicle showing that a statute's disparate language does not address preemption manufacturers." 138 This means that geographic coverage is sufficiently under EPCA. That introductory clause EPA could consider only otherwise related to the problem that it targets." merely modifies the remainder of the lawful standards. States and local Id. Congress rejected any such prospect savings provision, which goes on to say governments are not permitted to in the area of fuel economy by adding that "nothing in this Act or an enforce standards preempted by EPCA. an unwaivable preemption clause in amendment made by this Act . . . limits 49 U.S.C. 32919(a). EPCA. NHTSA does not presume that However, EPCA does specifically the authority provided. . . or Congress, when adopting EISA, authorizes any violation of any permit a State or local government to impliedly discarded the equal "prescribe requirements for fuel provision of law ...... This statutory application of EPCA to the States language prevents EISA from limiting economy for automobiles obtained for without a clear statement of intent to do preexisting authority or responsibility its own use." 49 U.S.C. 32919(c). It is so and a recitation of the "extraordinary logical that the Federal government conferred by any law or from conditions" permitting California would consider the requirements for special authority related to fuel 133U.S. Senators Tom Carper, Diane Feinstein States and local government vehicle economy. Id. at 211. "Congress... and Edward J. Markey, Docket No. NHTSA-2018- fleets in evaluating vehicles for its own does not alter the fundamental details of 0067-11938 Federal government fleet. Such a regulatory scheme in vague terms or 134South Coast Air Quality Management District, ancillary provisions-it does not, one Docket No. NHTSA-2018-0067-11813. 137 California Air Resources Board (CARB), might say, hide elephants in 135 joint Submission from the States of California Docket No. NHTSA-2018-0067-11873; Joint 139 et al. and the Cities of Oakland et al., Docket No. Submission from the States of California et al. and mouseholes." NHTSA-2018-0067-11735. the Cities of Oakland et al., Docket No. NHTSA- 136South Coast Air Quality Management District, 2018-0067-11735. 139Whitman v. Am. Trucking Ass'ns, 531 U.S. Docket No. NHTSA-2018-0067-11813. 138 42 U.S.C. 13212(f)(3)(B) (emphasis added). 457, 468 (2001). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 21 of 6151323
G. PriorCase Law Does Not Preclude preemption in construing the statute persuasive. Commenters did not provide Preemption NHTSA administers.146 Although the any new information or analysis of Certain comments opposed to United States filed an amicus brief those district court decisions that NHTSA's proposal rely upon the opposing the Vermont court's decision caused the agency to change its view on Supreme Court's decision in in the Second Circuit, that appeal was the decisions. 15 1 NHTSA incorporates Massachusetts v. EPA to argue that not decided on the merits due to the the prior discussion of those decisions regulation of tailpipe emissions is automotive industry's withdrawal of the from the proposal here. appeal as a part of a negotiated separate and distinct from regulation of While NHTSA need not belabor its 1 40 agreement connected to the national fuel economy. NHTSA disagrees with views again here, it is worth attempts to stretch the holding of this framework. In its brief, the United States specifically raised the district court's emphasizing, as did commenters, that decision well beyond the issues both district courts ignored NHTSA's addressed by the Court. The Court did failure to consider NHTSA's views published prior statements on not address EPCA preemption in concerning preemption, let alone give them weight. 14 7 Withdrawal of appeals preemption in rendering their Massachusetts v. EPA, or State 15 regulations pursuant to a Clean Air Act was expressly part of the agreement to decisions. 2 Some comments seem to waiver. The Court addressed only EPA's establish the national framework. suggest that this failure to address The Vermont district court also NHTSA's views represents a substantive own statutory obligations, which have 153 no bearing on EPCA preemption. attempted to reconcile EPCA and the rejection of those views. NHTSA Moreover, as discussed above, Clean Air Act by asserting that a Clean disagrees. The district courts simply NHTSA and EPA conduct joint Air Act waiver converts State entirely failed to consider the agency's rulemaking consistent with the Supreme requirements to "other motor vehicle views; they did not consider and reject Court's decision. The Court standards" that NHTSA must consider them or even find that they were not acknowledged that NHTSA and EPA's in setting fuel economy standards. As due any weight. This is among the statutory obligations may overlap, but NHTSA noted in the proposal, even the reasons that NHTSA is formalizing its that the agencies may both administer California district court found that there views in a regulation. As the expert those obligations while avoiding was no legal foundation for the view agency charged with administering inconsistency.'14 NHTSA therefore that a State regulation pursuant to a EPCA, NHTSA is tasked with balancing disagrees with the comment's assertion Clean Air Act waiver becomes the the four statutory factors in determining a Federal regulation. 148 that regulations of tailpipe greenhouse equivalent of the "maximum feasible average fuel gas emissions and This is an erroneous finding not based fuel economy are economy standards" for each model truly separate and distinct. The agencies on precedent and is unsupported by 15 4 year. In doing so, NHTSA has the issue joint rules precisely because of the applicable law. unavoidable scientific relationship As described in the proposal, NHTSA unique ability to determine whether State or local regulations would between the two. also disagrees with the California and 1 5 5 A number of comments also rely on Vermont district courts' implied undermine this balancing. NHTSA's the prior district court decisions in preemption analyses. 14 9 NHTSA does views on preemption certainly should California and Vermont in opposing not believe those courts fully considered be considered by any court evaluating NHTSA's proposal on preemption.142 the conflict posed by State regulations this issue. This is particularly true given As NHTSA discussed in the proposal, and, in one case, even went so far as to that the relationship between fuel those courts previously concluded that assert erroneously that NHTSA could economy standards and greenhouse gas State tailpipe greenhouse gas emissions simply defer to California in revising its emissions is a matter of science. 1 5 standards were not preempted by standards. 0 Those decisions are not 143 One commenter also erroneously EPCA. NHTSA continues to disagree binding on NHTSA. asserts that collateral estoppel will bar with both of these district court Given NHTSA's previously stated the Department of Justice from decisions, as described in detail in the views on those decisions, arguments 1 44 defending a final rule that asserts State proposal. This includes the California that rely on the decisions are not greenhouse gas emissions regulations district court's erroneous view of the 15 6 46 are preempted by EPCA. Nonmutual requirement in EPCA for NHTSA to 1 Id. at 43236; Proof Brief for the United States consider "other standards" in setting as Amicus Curiae, 07-4342-cv (2d Cih. filed Apr. offensive collateral estoppel does not fuel economy standards. 14 5 In reaching 16, 2008). apply to the United States. United States 147 See Proof Brief for the United States as v. Mendoza, 464 U.S. 154, 162 (1984). its conclusion, the court misconstrued a Amicus Curiae, 07-4342-cv (2d Cir. filed Apr. 16, separate provision of EPCA that, by its 2008). NHTSA also was not a litigant in the district Moreover, the Federal government was explicit terms, has had no effect for court cases and, therefore, did not have a full not even a party to the prior litigation decades. Importantly, neither district opportunity to raise its views. involving EPCA preemption. The court considered NHTSA's views on 148 83 FR 42986, 43236 (Aug. 24, 2018). assertion that the Department of Justice 149Id. at 43238. would be barred from defending this 150 Cent. Valley Chrysler-Jeep,Inc., 529 F. Supp. 140 California Air Resources Board (CARB), 2d at 1179. NHTSA has a statutory obligation to set final rule lacks merit. Docket No. NHTSA-2018-0067-11873; see standards at "the maximum feasible average fuel Northeast States for Coordinated Air Use economy level that the Secretary decides the Management (NESCAUM), Docket No. NHTSA- 151 As noted by a commenter, the appeals were manufacturers can achieve in that model year," in 2018-0067-11691. dismissed before decision as a practical matter, and 4 1 1 Massachusetts v. EPA, 549 U.S. 497, 532 accordance with the statutory considerations. 49 despite strong arguments on the merits. Fiat U.S.C. 32902(a), (f). Thus, NHTSA cannot simply Chrysler Automobiles (FCA), Docket No. NHTSA- (2007). defer to a State. For example, the only standards 142 Joint Submission from the States of California 2018-0067-11943. that California would permit to satisfy California 152 83 FR 42986, 43236 (Aug. 24, 2018). et al. and the Cities of Oakland et al., Docket No. requirements for model years 2021 through 2025 are 153 See California Air Resources Board (CARB), NHTSA-2018-0067-11735; South Coast Air the augural standards. See Cal. Code Regs. tit. 13, Quality Management District, Docket No. NHTSA- § 1961.3(c). If NHTSA finalizes a determination that Docket No. NHTSA-2018-0067-11873. 2018-0067-11813. the augural standards are not "maximum feasible," 15449 U.S.C. 32902(f). 14383 FR 42986, 43235 (Aug. 24, 2018). as discussed in the proposal, then it would be 155 See id. 144Id. at 43235-38. contrary to law for NHTSA to nevertheless adopt 156 See South Coast Air Quality Management 145Id. at 43236-37. them in deference to California. District, Docket No. NHTSA-2018-0067-11813. 51324USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 22 of 61
H. A Clean Air Act Waiver and SIP governments as well. Moreover, EPCA's address questions unrelated to CAA Approvals Do Not ForecloseEPCA preemption provision is fully consistent section 209, such as preemption Preemption with the Clean Air Act. EPCA's analysis, in its waiver decisions. Both agencies are finalizing their preemption provision does not NHTSA strongly disagrees with the tentative conclusion from the proposal implicitly repeal parts of Section 209(b), assertion that EPA's approval of a SIP contrary to the assertion in one silently acts as an implied waiver of that a Clean Air Act waiver does not 6 also foreclose EPCA preemption. EPCA comment.' ' States must simply act in EPCA preemption. This suggestion is does not provide for a waiver of accordance with both statutes. Cf. particularly hollow given that neither preemption, either by NHTSA or by Massachusettsv. EPA, 549 U.S. 497, 532 EPA nor NHTSA has the authority to another Federal agency. EPA, like (2007) (finding no inconsistency waive EPCA preemption. NHTSA, does not have the authority to between obligations of EPA under Clean NHTSA agrees with the general waive EPCA preemption. Therefore, its Air Act and NHTSA under EPCA). principle that an approved SIP is grant of a Clean Air Act waiver cannot NHTSA has rejected the argument enforceable as a matter of Federal operate to waive EPCA preemption. that a Clean Air Act waiver renders law.164 However, the case law does not NHTSA discussed the basis for its view EPCA preemption inapplicable, and support the argument made by CARB that a Clean Air Act waiver does not likewise rejects the even more and South Coast's comments. The case "federalize" EPCA-preempted State attenuated argument concerning EPA's law explains that a SIP approved by requirements in detail in its proposal. approval of preempted State EPA creates binding obligations, NHTSA reaffirms that discussion. requirements as a part of a State pursuant to the Clean Air Act. 1 6 5 There Several comments recited the district Implementation Plan (SIP) submission is no indication that Congress intended court's holding in Green Mountain for areas that do not meet National to permit one agency to legitimize an Chryslerthat it need not consider EPCA Ambient Air Quality Standards otherwise EPCA-preempted State 1 5 7 preemption due to the EPA waiver. (NAAQS). A State has no authority to provision by "federalizing" it. As an NHTSA discussed in detail in the adopt or enforce a requirement that falls analogy, the IRS requires individuals to proposal its reasons for disagreeing with within the scope of EPCA preemption. report and pay taxes on money earned that decision and commenters did not 49 U.S.C. 32919(a). This is true even if from illegal activity, such as dealing identify any new information that adopting the unlawfully enacted drugs.166 A drug dealer who complies caused NHTSA to change its view. requirement would assist the State in with Federal tax law is not relieved of NHTSA agrees with commenters that coming into compliance with the the prohibitions on possessing and reject the flawed reasoning of the NAAQS. The inclusion of an invalid selling drugs that apply under other district court. 15 8 As one commenter fuel economy requirement in an air Federal laws. explained, the argument that an EPA quality SIP does not render the Since SIPs are binding on States, the waiver federalizes State requirements requirement suddenly valid.162 NHTSA agencies recognize that certain States renders the EPCA preemption provision therefore disagrees with comments that may need to work with EPA to revise 167 a nullity.15 9 As the commenter noted, suggest that EPCA preemption no longer their SIPs in light of this final action. this incorrect interpretation would applies simply because an unauthorized As stated in the proposal, EPA may enable States to even issue explicit fuel requirement is included in a SIP that is subsequently consider whether to economy requirements so long as they subsequently approved.163 It is employ the appropriate provisions of were under cover of a waiver from EPA. inappropriate for a State to take action the Clean Air Act to identify provisions EPA does not have authority to waive unauthorized and rendered void by one of States' SIPs that may need review any aspect of EPCA preemption, nor statutory scheme to meet the because they include preempted ZEV does NHTSA. requirements of a different statutory mandates or greenhouse gas emissions NHTSA also finalizes its view that scheme. standards.168 However, this practical preempted standards are void ab initio. Moreover, EPCA preemption applies consideration is not grounds for No commenters presented information directly to States and local governments ignoring EPCA's limitations on State that altered NHTSA's view, which is which are obliged to adhere to the action. SIPs are not written in stone. based on longstanding Supreme Court constraints of the Supremacy Clause. They are subject to revision, including case law, as cited by the proposal. EPCA explicitly prohibits States and based on changed circumstances. The NHTSA agrees with South Coast, local governments from adopting or Clean Air Act allows SIPs to be revised which suggested in its comments that enforcing a law or regulation related to for various reasons, including that part EPCA does not outweigh the Clean Air fuel economy standards. It is 160 of the plan was approved in error, that Act. Likewise, the Clean Air Act does unreasonable for States to expect a the plan is "substantially inadequate," not outweigh EPCA. Just as Federal agency (EPA) acting under one or that the State is suspending or manufacturers must comply with statutory scheme (the Clean Air Act) to requirements under both statutes, both analyze whether the State has adopted 164 See California Air Resources Board (CARB), statutes apply to State and local preempted regulations in contravention Docket No. NHTSA-2018-0067-11873; South Coast of an entirely separate statute (EPCA) Air Quality Management District, Docket No. 157 See, e.g., California Air Resources Board administered by a different Federal NHTSA-2018-0067-11813. (CARB), Docket No. NHTSA-2018-0067-11873; agency (NHTSA). In fact, as noted 165 See, e.g., Safe Air for Everyone v. United Class of 85 Regulatory Response Group, Docket No. States Envil Prot.Agency, 488 F.3d 1088, 1091 (9th NHTSA-2018-0067-12070; Joint Submission from above, historically EPA has declined to Cir. 2007). the States of California et al. and the Cities of 166Internal Revenue Service, Publication 525: Oakland et al., Docket No. NHTSA-2018-0067- 161Joint Submission from the States of California Taxable and Nontaxable Income 32 (Mar. 8, 2019), 11735. et al. and the Cities of Oakland et al., Docket No. https://www.irs.govlpublirs-pdf/p525.pdf. 15 See, e.g., American Fuel & Petrochemical NHTSA-2018-0067-11735. 167 EPA explains below that it will consider Manufacturers, Docket No. NHTSA-2018-0067- 162 SIPs must include "enforceable emission whether and how to address SIP implications of 12078. limitations." 42 U.S.C. 7410(a)(2)(A). An EPCA this action, to the extent that they exist, in separate 159 Competitive Enterprise Institute, Docket No. preempted requirement is not enforceable. 49 actions; EPA believes that it is not necessary to NHTSA-2018-0067-12015. U.S.C. 32919(a). resolve those implications in the course of this 160 See South Coast Air Quality Management 163 See South Coast Air Quality Management action. District, Docket No. NHTSA-2018-0067-11813. District, Docket No. NHTSA-2018-0067-11813. 168 83 FR 42986, 43244 (Aug. 24, 2018). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 23 of 6151325 revoking a program included in a plan. economy standards for vehicles sold or adoption of regulatory text in this 42 U.S.C. 7410(a)(5)(iii), (k)(5)-(6). delivered to the public, Federal law document, will ultimately provide the does not allow California (or any other needed regulatory certainty into the L NHTSA Has Appropriately State or local government) to regulate in future. Considered the Views of States and this area. Those commenters that ask NHTSA to Local Governments Consistent With Law For California, or any other State or negotiate with California demonstrate 1 7 NHTSA considers the views of all local government, to regulate in this the nature of the problem. 3 The interested stakeholders-including area would require NHTSA to waive underlying reason commenters are States and local governments-in EPCA preemption, but commenters did concerned about the absence of a carrying out its statutory obligation to not and cannot identify any statutory compromise resolution is because of the set nationally applicable fuel economy authorization for NHTSA to do so and conflict that will result if States proceed standards. However, EPCA does not no such authority exists, either with regulations that are inconsistent permit States or local governments to expressly or impliedly. The Clean Air with Federal requirements.174 Such act as co-regulators with NHTSA in the Act requires EPA to waive Clean Air Act commenters, appropriately, have process of setting fuel economy preemption under a specific section of recognized the disruptive effect of standards. Indeed, EPCA precludes that statute unless it makes certain continuing to tolerate multiple them from doing so, with the sole findings. But because EPCA does not regulators in this area. Moreover, as exception of information disclosure enable NHTSA to issue a waiver of discussed in additional detail below, a requirements identical to Federal preemption, it also does not set forth negotiated resolution is inconsistent requirements, and for requirements for terms upon which a waiver would be with the APA's notice and comment fuel economy for automobiles obtained appropriate.170 Thus, NHTSA lacks a rulemaking process. NHTSA has no for a State or local governments' own legal basis for approving of or basis in law to ignore the substantive use. A number of commenters urged consenting to State or local comments received on its proposal from NHTSA to work cooperatively with requirements related to fuel economy many stakeholders and instead California, and to negotiate with and standards. determine an outcome through reach a compromise with California.169 Absent the affirmative authority to negotiation with a regulatory agency in NHTSA appreciates such comments, approve of or consent to State or California. NHTSA is a safety agency and seeks to foster a collaborative locality's requirements related to fuel with different priorities than CARB, regulatory approach to the extent economy standards, commenters appear with a different set of factors to balance, possible. That said, California is not to ask NHTSA to simply to look aside. including safety implications. permitted by Federal law to have its That is inconsistent with NHTSA's legal As discussed above, many comments own separate laws or regulations responsibility to set nationally emphasized a desire for maintaining a relating to fuel economy standards. 49 applicable standards. It is also National Program. Neither California U.S.C. 32902 makes clear that NHTSA inconsistent with the self-executing nor any other State, of course, has the sets nationally applicable fuel economy nature of EPCA preemption, meaning authority to set national standards in standards, and NHTSA is implementing that State or local requirements related any area. If California were to adopt and its authority to do so through this to fuel economy standards are void ab enforce requirements related to fuel regulation clarifying the preemptive initio. Even if NHTSA wanted to do so, economy standards, there could only be effect of its standards consistent with it cannot breathe life into an expressly uniform standards applicable the express preemption provision in 49 preempted State law. And doing so throughout the country if California U.S.C. 32919. would effectively result in NHTSA's agrees with the standards set by NHTSA The very limited exceptions to purporting to rewrite a statute, which is or vice versa. But EPCA requires that preemption set forth in EPCA-covering beyond the power of a regulatory "[e]ach standard shall be the maximum vehicles for a government's own use, agency. feasible average fuel economy level that and for disclosure requirements that are NHTSA also disagrees that it is the Secretary"-not a regulatory agency identical to Federal requirements-only appropriate to ignore EPCA preemption in the State of California-"decides that confirm the breadth of preemption. See as a strategy to avoid litigation over this the manufacturers can achieve in that 49 U.S.C. 32919(b)-(c). States or issue, a strategy strongly suggested by a model year." 175 49 U.S.C. 32902(a). localities cannot adopt or enforce large number of commenters. NHTSA requirements related to fuel economy understands the concerns of such 173 See, e.g., American Honda Motor Company, standards unless they fall into one of commenters who hope to avoid Inc., Docket No. NHTSA-2018-0067-11818; Sen. T. these two discrete exceptions. This prolonged litigation.171 However, Carper, United States Senate, Docket No. NHTSA- 2018-0067-11910; Manufacturers of Emission means requirements related to fuel NHTSA believes that long-term Controls Association, Docket No. NHTSA-2018- economy standards for automobiles for certainty is best achieved by applying 0067-11994. use by a State's citizens, and not merely the law as written. NHTSA agrees with 174 See Cal. Code Regs. tit. 13, section 1961.3(c). the State itself, are not permitted. Since commenters who acknowledge the 175 As NHTSA explained in the proposal, it States are not permitted to adopt or disruption to the automotive disagrees with the implication of the district court's statement in Central Valley that "NHTSA is enforce requirements related to fuel marketplace that would come if empowered to revise its standards" to take into preempted standards remained in account California's regulations. 83 FR 42986, 169See, e.g., American Honda Motor Company, place.172 Addressing preemption 43238 (Aug. 24, 2018); see Cent. Valley Chrysler- Inc., Docket No. NHTSA-2018-0067-11818; Sen. T. directly, as NHTSA has done through its Jeep, Inc., 529 F. Supp. 2d at 1179. NHTSA's duty Carper, United States Senate, Docket No. NHTSA- under EPCA is to balance the statutory factors, not 2018-0067-11910; Maryland Department of the 0 to acquiesce to the views of one State (which by its 17 EPA also does not have authority to waive Environment, Docket No. NHTSA-2018-0067- own assertion is attempting to address State- 12044; Joint Submission from the States of EPCA preemption, under the Clean Air Act or specific concerns, including the geography of its California et al. and the Cities of Oakland et al., otherwise. population centers). See, e.g., California Air Docket No. NHTSA-2018-0067-11735; 171 American Honda Motor Company, Inc., Docket Resources Board (CARB), Docket No. NHTSA- Manufacturers of Emission Controls Association, No. NHTSA-2018-0067-11818; Ford Motor 2018-0067-11873 (stating that California's Docket No. NHTSA-2018-0067-11994; North Company, Docket No. NHTSA-2018-0067-11928. "population continues to live predominantly in Carolina Department of Environmental Quality, 172 Fiat Chrysler Automobiles (FCA), Docket No. basins bounded by mountains, in which air quality Docket No. NHTSA-2018-0067-12025. NHTSA-2018-0067-11943. is poor"). 51326USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 24 of 61
Moreover, a faithful application of appropriate standards with NHTSA. should consider the views of States and EPCA requires more than just avoiding Commenters appear to suggest closed- local governments. inconsistency. For that reason, it is door negotiations, and not an alternative NHTSA also disagrees with the view unavailing that CARB has previously rulemaking process (such as negotiated expressed by some commenters that implemented its program purportedly rulemaking), that would ensure there is not a direct conflict between consistent with the Federal procedural fairness.181 NHTSA 1 7 6 State regulation of tailpipe carbon government. EPCA requires NHTSA disagrees that negotiation is the dioxide emissions from automobiles to set nationally applicably standards. appropriate mechanism to set nationally issued pursuant to a Clean Air Act EPCA does not permit States or local applicable policy with billions of waiver and NHTSA's ability to set fuel governments to adopt or enforce even 177 dollars of impacts. The notice-and- economy standards under EPCA. South standards. identical or equivalent comment rulemaking process used by Coast argues that when there are EPCA allows for only a single the agencies is the appropriate inconsistent standards, automakers can regulator-NHTSA-to set fuel economy mechanism for setting standards under avoid a conflict by complying with the standards. Moreover, it is now clear it EPCA and the Clean Air Act, with due more stringent standard.183 does not intend to do so for model year consideration to the views of all 2021 through 2026 vehicles, should the interested parties and transparency. NHTSA disagrees that this situation forthcoming final SAFE rule finalize NHTSA certainly would prefer a result does not pose a conflict. Higher standards other than the no action that is satisfactory to all interested standards than those NHTSA has alternative as described in the NPRM.178 stakeholders, but it may not set aside its determined are "maximum feasible" And even consistent programs subject own considered views on the after balancing the statutory factors manufacturers to duplicative appropriate standards to reach a negates the agency's judgment in setting enforcement regimes, in conflict with negotiated resolution, nor may it set national standards, including traffic EPCA. 1 79 State standards that are aside Congress's commands in EPCA. safety. NHTSA addressed this conflict identical or equivalent standards to the While States or local governments in detail in the proposal and reiterates Federal standards manufacturers may not adopt or enforce requirements that discussion here.184 NHTSA also nevertheless obligate manufacturers to related to fuel economy standards, disagrees that all manufacturers should meet more onerous requirements. That NHTSA, of course, is considering their simply comply with a higher standard is because States, of course, lack views in setting appropriate standards. than the standards set by the Federal authority to set nationwide Many State and local governments government based on statutory requirements. Therefore, manufacturers commented at great length on both the considerations. It may not be technically must meet State standards within each preemption and standard setting feasible for manufacturers to comply State that has adopted them. Since fuel portions of NHTSA's proposal.182 with higher standards or the higher economy standards are fleetwide NHTSA has taken their views into standards may not be economically average standards, it is more difficult to account in finalizing this rule, along practicable. These are factors that achieve a standard in a particular State, with those of other commenters. States NHTSA must carefully assess and averaged across a smaller pool of and local governments have had and balance in setting standards under vehicles, than it is to achieve the will continue to have a say in the EPCA, and the notion that a State has Federal standard, averaged across the adoption of fuel economy standards, the unilateral ability to veto or pool of vehicles for all States. consistent with the APA. Indeed, many undermine NHTSA's determination by In addition, there is no legal basis in of the technical comments provided by setting higher standards directly EPCA or the APA for California or any California and other State and local conflicts with EPCA. other State to receive preferential governments and agencies are being South Coast also asserted in its treatment for their views in this considered to improve the analysis comments that there is no direct conflict statutory scheme or rulemaking regarding the appropriate standards. In between the purpose of EPCA to reduce 1 80 process. Nor is California, or any an area with express preemption, this fuel consumption by increasing fuel other State, entitled to negotiate the APA process is the appropriate means economy and the purpose of the Clean by which the Federal government Air Act to protect public health from air 176 California Air Resources Board (CARB), pollution, including by allowing Docket No. NHTSA-2018-0067-11873. 181 One comment noted that prior negotiations California to establish motor vehicle 177EPCA does allow States or local governments were "closed-door, 'put nothing in writing, ever' standards if it meets the criteria for a to adopt identical requirements for disclosure of negotiations." Competitive Enterprise Institute, 5 waiver.18 fuel economy or fuel operating costs, but did not Docket No. NHTSA-2018-0067-12015; see also While it is true that there allow identical requirements in other areas related Sen. Phil Berger & Rep. Tim Moore, North Carolina need not be a conflict between EPCA to fuel economy. See 49 U.S.C. 32919(b). General Assembly, Docket No. NHTSA-2018-0067- and the Clean Air Act, this statement is 178 See Cal. Code Regs. tit. 13, section 1961.3(c). 11961. irrelevant to the determination of 179 EPCA has an unusual civil penalty provision 182 See, e.g., California Air Resources Board whether State standards are preempted for violations of fuel economy standards that (CARB), Docket No. NHTSA-2018-0067-11873; enables various compliance flexibilities, including Joint Submission from Governors of Texas, et al., by EPCA. NHTSA and EPA conduct use of banked credits, credit plans, credit transfers, Docket No. NHTSA-2018-0067-11935; Joint joint rulemaking in this area because and credit trades. See 49 U.S.C. 32912. EPCA also Submission from the States of California et al. and EPA's greenhouse gas emissions requires specific procedures and findings before the the Cities of Oakland et al., Docket No. NHTSA- standards are inherently related to Secretary of Transportation may increase the civil 2018-0067-11735; Maryland Department of the penalty rate applicable to violations of fuel Environment, Docket No. NHTSA-2018-0067- NHTSA's fuel economy standards. This economy standards. 49 U.S.C. 32912(c). State and 12044; Minnesota Pollution Control Agency inherent linkage was recognized by the local enforcement of even identical or equivalent (MPCA), the Minnesota Department of Supreme Court in Massachusettsv. requirements interferes with this enforcement Transportation (MrtDOT), and the Minnesota structure. Department of Health (MDH), Docket No. NHTSA- 183 South Coast Air Quality Management District, 180 See Nw. Austin Mun. Util. Dist. No. One v. 2018-0067-11706; North Carolina Department of Holder, 557 U.S. 193, 203 (2009) (stating that "a Environmental Quality, Docket No. NHTSA-2018- Docket No. NHTSA-2018-0067-11813. departure from the fundamental principle of equal 0067-12025; Pennsylvania Department of 184 See section f of the proposal's preemption sovereignty requires a showing that a statute's Environmental Protection, Docket No. NHTSA- discussion. 83 FR 42986, 43237-38 (Aug. 24, 2018). disparate geographic coverage is sufficiently related 2018-0067-11956; Washington State Department of 185 South Coast Air Quality Management District, to the problem that it targets"). Ecology, Docket No. NHTSA-2018-0067-11926. Docket No. NHTSA-2018-0067-11813. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 25 of 6151327
EPA. 186 California and other States and specifically solicited comments other 49 States are protected by the have, for many years, regulated ozone- from State and local officials, as well as standards set by the Federal agencies. forming emissions from vehicles other members of the public. As NHTSA recognizes that California pursuant to a Clean Air Act waiver discussed above, NHTSA has may have different policy views, as do without posing a conflict with NHTSA's considered the extensive comments many interested parties, including both regulation of fuel economy. It is when from State and local governments. those who expressed views in favor of States regulate the emission of and in opposition to the proposal. EPCA preemption also does not greenhouse gases, especially carbon However, Congress gave NHTSA the improperly impinge on the rights of dioxide, that the conflict arises because duty to balance competing of the direct and substantial relationship States. Several commenters argued for considerations. NHTSA also rejects the between tailpipe emissions of carbon allowing States to regulate in this area notion that California has valid reliance due to asserted benefits of State dioxide and fuel economy. Regulation 19 interests in regulations that are void ab in this area is related to NHTSA's fuel regulation. 0 CARB's comments went initio. Indeed, even in the run-up to the into extensive detail on its history of economy standards and impedes 19 2012 rulemaking, California itself NHTSA's ability to set nationally regulating vehicles. It also asserted reserved its rights to go in a different that there is industry support for its direction and recognized that the applicable fuel economy standards. 92 NHTSA also disagrees with comments regulation in this area,' and argued Federal Government may assert that assert it did not properly consider that it has reliance interests in its preemption at a later date. 1 9 7 The extent federalism concerns. Specifically, South regulations.19 CARB also argued that to which all or part of industry does or Coast claimed that NHTSA violated the NHTSA's proposal would adversely does not support California's ability to executive order on federalism, impact its police power and ability to regulate in this area is also not a 94 Executive Order 13132, although South protect its citizens.' In addition, it relevant consideration to whether Coast acknowledges the Executive Order claimed that NHTSA's proposal would California is legally authorized to do so. does not create an enforceable right or impact its State-imposed mandate for NHTSA also notes that industry has benefit. 187 Setting aside the Executive emissions reductions by 2030, given the expressed a strong preference for one Order's non-justiciability for the transportation sector's contributions to national standard, which is the purpose98 moment, NHTSA's action complies with California's greenhouse gas of EPCA's preemption provision. 1 9 5 Executive Order 13132. Contrary to emissions. California has now made clear that it will not accept manufacturers' South Coast's assertion, the executive Notwithstanding these asserted compliance with Federal standards, order recognizes both express interests of policy, Congress determined preemption and conflict preemption, unless the agencies adopt the no action that NHTSA should have exclusive alternative from the proposal. 199 EPCA and it does not bar the application of authority to set fuel economy standards conflict preemption where a statute preemption ensures that such State and that States are not authorized to regulations are unenforceable and that contains an express preemption adopt or enforce regulations related to provision. 188 The provisions concerning one set of national standards (the those standards, with limited exceptions Federal standards) will control. Not express preemption and conflict described above. No commenter argued preemption are in separate paragraphs, even identical standards are that EPCA's preemption provision is which are not mutually exclusive. See permissible. unconstitutional. Some commenters, E.O. 13132 section 4(a)-(b). J. Clarifying Changes to FinalRule Text Moreover, the executive order however, have argued that special supports NHTSA's action in construing treatment afforded to the California is No commenter offered alternative preemption through rulemaking. See id. problematic.196 Just as States have no regulatory text for consideration by the The executive order explicitly supports valid police power to set fuel economy 197 See Letter from M. Nichols, the process NHTSA used here to standards directly, neither are they CARB to R. permitted under EPCA and the LaHood, DOT & L. Jackson, EPA (July 28, 2011), consider the views of States and local available at https://www.epa.gov/sites/production/ governments, stating that: "When an Supremacy Clause to set standards files/2016-10/documents/carb-commitment-ltr.pdf agency proposes to act through related to fuel economy standards. (last visited Sept. 15, 2019) (making certain States do have input into the Federal commitments for a National Program, conditioned adjudication or rulemaking to preempt on certain events including EPA's grant of a waiver State law, the agency shall provide all fuel economy standards established by of Clean Air Act preemption, vehicle manufacturers affected State and local officials notice NHTSA (as well as EPA's related not challenging California's standards on the basis and an opportunity for appropriate greenhouse gas emissions standards) of EPCA preemption, and indicating that through the notice-and-comment "California reserves all rights to contest final participation in the proceedings." E.O. actions taken or not taken by EPA or NHTSA as part 13132 section 4(e). NHTSA cited to process, and the interests of California's of or in response to the mid-term evaluation"). Executive Order 13132 in the citizens as well as the citizens of the 198 See Alliance of Automobile Manufacturers, preemption portion of its proposal,189 Docket No. NHTSA-2018-0067-12073; American 190 See, e.g., California Air Resources Board Honda Motor Company, Inc., Docket No. NHTSA- 2 018-0067-11818; Association of Global 186 See Massachusetts v. EPA, 549 U.S. 497, 532 (CARB), Docket No. NHTSA-2018-0067-11873. Automakers, Docket No. NHTSA-2018-0067- 191 California Air Resources Board (CARB), (2007). 12032; Fiat Chrysler Automobiles (FCA), Docket Docket No. NHTSA-2018-0067-11873. 187E.O. 13132 section 11; South Coast Air Quality No. NHTSA-2018-0067-11943; Ford Motor 192 Id. Management District, Docket No. NHTSA-2018- Company, Docket No. NHTSA-2018-0067-11928; 0067-11813. South Coast also states that NHTSA 193 Id. General Motors LLC, Docket No. NHTSA-2018- did not mention the Tenth Amendment in its 194 Id.; see also Joint Submission from the States 0067-11858; Jaguar Land Rover, Docket No. proposal. South Coast Air Quality Management of California et al. and the Cities of Oakland et al., NHTSA-2018-0067-11916; Mazda Motor District, Docket No. NHTSA-2018-0067-11813. Docket No. NHTSA-2018-0067-11735. Company, Docket No. NHTSA-2018-0067-11727; However, South Coast does not assert that this 195 California Air Resources Board (CARB), Mitsubishi Motors RD of America, Inc. (MRDA), action violates the Tenth Amendment, which is Docket No. NHTSA-2018-0067-11873. Docket No. NHTSA-2018-0067-12056; Subaru, fully consistent with Federal preemption. See 196 E.g., Sen. Phil Berger & Rep. Tim Moore, North Docket No. NHTSA-2018-0067-12020; Toyota Constitution, Article VI. Carolina General Assembly, Docket No. NHTSA- Motor North America, Docket No. NHTSA-2018- 188 South Coast Air Quality Management District, 2018-0067-11961; Rep. M. Turzai, Pennsylvania 0067-12150; Volkswagen Group of America, Docket Docket No. NHTSA-2018-0067-11813. House of Representatives, Docket No. NHTSA- No. NHTSA-2017-0069-0583. 189 83 FR 42986, 43233 n.496 (Aug. 24, 2018). 2018-0067-11839. 199 See Cal. Code Regs. tit. 13, section 1961.3(c). 51328USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 26 of 61 agency on preemption. Because NHTSA economy is directly and substantially III. EPA's Withdrawal of Aspects of the is finalizing its views on preemption, it related to automobile tailpipe emissions January 2013 Waiver of CAA section is adopting the proposed regulatory text, of carbon dioxide." This provides the 209(b) Preemption of the State of including an appendix. However, based foundation for NHTSA's express and California's Advanced Clean Car on its review of comments, NHTSA is implied preemption analysis. NHTSA is Program adopting a few minor, clarifying therefore clarifying that requirements In this section of this joint action, changes. directly or substantially related to fuel EPA is finalizing its August 2018 While not advocating for a change to economy are preempted by adding "or proposal to withdraw aspects of its the regulatory text, comments from substantially" to two places in the January 2013 waiver of Clean Air Act South Coast and CARB persuaded us to regulatory text. This is consistent with (CAA) section 209 preemption of the make changes to ensure consistency the proposal, which explained that State of California's Advanced Clean Car with EPCA's express preemption requirements with no bearing on fuel 200 (ACC) program. First,subsection A provision, as was NHTSA's intention. economy or those with only an provides background regarding the ACC South Coast specifically pointed out incidental impact on fuel economy are program. Second, subsection B finalizes that two provisions of the proposed not preempted.203 Requirements with EPA's proposed determination that it regulatory text (appendix B, sections more than an incidental impact, i.e. has the authority to reconsider and (a)(3) and (b)(3)) did not include the those requirements that directly or withdraw previously granted waivers. word "automobiles." 201 Contrary to substantially affect fuel economy are Third, subsection C finalizes EPA's South Coast's suggestion, NHTSA's related to fuel economy and thus proposed determination that, in light of intention was not to reach beyond the preempted. Therefore, this change in the NHTSA's determinations finalized statutory text. Most of the proposed regulatory text of the final rule provides elsewhere in this joint action regarding regulatory text explicitly addressed additional clarity on the scope of the preemptive effect of EPCA on state automobiles. In the two provisions preemption. GHG and ZEV programs, EPA's January identified by South Coast as omitting In addition, several references 2013 grant of a waiver of CAA that term, NHTSA addressed tailpipe throughout the proposed regulatory text preemption for those provisions of carbon dioxide emissions and fuel addressed a "state law or regulation." California's program was invalid, null, economy. In context, these references Consistent with EPCA and the and void; that waiver is hereby address automobile emissions and discussion in the notice of proposed withdrawn on that basis, effective on automobile fuel economy. However, for rulemaking, NHTSA intended to the effective date of this joint action. clarity and consistency, NHTSA has address laws and regulations of States Fourth, subsection D, separate and apart added explicit reference to automobiles and their political subdivisions. For from the determinations in subsection C to these two provisions. clarity, NHTSA revised all references in with regard to the effect of EPCA CARB also pointed out in its its regulatory text to cover States and preemption on the January 2013 waiver, comments that the statute preempts their political subdivisions. finalizes EPA's reconsideration of, and laws or regulations "related to fuel Specifically, in the rule NHTSA is its proposed determination that it is finalizing in this document, appendix B, economy standards," not simply those appropriate to withdraw, its January 20 2 section (a)(3) reads: "A law or regulation related to fuel economy. While other 2013 grant of a waiver of CAA provisions of the proposed rule used the of a State or political subdivision of a preemption for the GHG and ZEV State having the direct or substantial phrases "relates to fuel economy standards in California's ACC program effect of regulating or prohibiting standards" or "related to fuel economy for model years 2021 through 2025, tailpipe carbon dioxide emissions from standards," the word "standards" was based on a determination that California automobiles or automobile fuel inadvertently omitted from section (a)(3) "does not need [those] standards to economy of the appendix. In the final rule, is a law or regulation related meet compelling and extraordinary to fuel economy standards and NHTSA has added that word for clarity. conditions" within the meaning of CAA expressly preempted under 49 U.S.C. In addition, to ensure consistency section 209(b)(1)(B). Fifth, subsection E 32919." 204 Appendix B, section (b)(3) throughout the regulatory text and with sets forth and specifies the terms of the reads: "A law or regulation of a State the preamble discussion, NHTSA is or waiver withdrawal. Sixth, subsection F political subdivision of a State having clarifying that a State law or regulations finalizes EPA's proposed determination having either a direct or substantial the direct or substantial effect of that, separate and apart from the effect of regulating or prohibiting regulating or prohibiting tailpipe carbon findings and determinations described tailpipe carbon dioxide emissions or dioxide emissions from automobiles or above, states other than California fuel economy is a law or regulation automobile fuel economy is impliedly cannot use CAA section 177 to adopt related to fuel economy. The proposal preempted under 49 U.S.C. Chapter California's GHG standards. Seventh 205 included this statement in the proposed 329." and finally, subsection G sets forth Finally, NHTSA also added clarifying regulatory text: "Automobile fuel EPA's understanding and intention with language to 49 CFR 531.7(b) and regard to severability of, and the 533.7(b) to indicate that the references 200 South Coast and CARB asked NHTSA to appropriate venue for judicial review of, to "section 32908" are to section 32908 withdraw its proposal on preemption, rather than this action. to change the text of the proposed rule. California of title 49 of the United States Code. Air Resources Board (CARB), Docket No. NHTSA- These clarifying changes are A. Background 2018-0067-11873; South Coast Air Quality consistent with the discussion in the Management District, Docket No. NHTSA-2018- On January 9, 2013, EPA granted 0067-11813. NHTSA declines to do so for the preamble to NHTSA's proposed rule. California's request for a waiver of reasons discussed in this final rule. preemption to enforce its Advanced 201 South Coast Air Quality Management District, 203 83 FR 42986, 43235 (Aug. 24, 2018). It is also Clean Car (ACC) program regulations Docket No. NHTSA-2018-0067-11813. consistent with the Supreme Court case law 202California Air Resources Board (CARB), interpreting "related to" in preemption provisions, under CAA section 209(b)(1).206 78 FR as discussed both in the proposal and this final Docket No. NHTSA-2018-0067-11873; see also 206 Joint Submission from the States of California et al. rule. See, e.g., Rowe, 552 U.S. at 375. As in the proposal, this final action uses 204 Emphases added. and the Cities of Oakland et al., Docket No. 20 "California" and "California Air Resources Board" NHTSA-2018-0067-11735. 5 Emphases added. (or "CARB") interchangeably. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 27 of 6151329
2112. On August 24, 2018, EPA "voluntary agreement," constitute a program regulations impose multiple proposed to withdraw this waiver of necessary part of the basis for the waiver and varying complex compliance preemption with regard to the GHG and withdrawal and other actions that EPA obligations that have simultaneous, and ZEV standards of its Advanced Clean finalizes in this document, and EPA sometimes overlapping, deadlines with Car (ACC) program for MY 2021-2025. would be taking the same actions that it each standard. These deadlines began in 83 FR 43240. In the SAFE proposal, EPA takes in this document even in their 2015 and are scheduled to be phased in provided extensive background on the absence. Nevertheless, EPA does not through 2025. For example, compliance history of CAA section 209 and waivers believe it appropriate to ignore these with the GHG requirements began in granted thereunder, as well as on the recent actions and announcements on 2017 and will be phased in through specific waiver which California sought the State's part, and, as discussed 2025.211 The implementation schedule for the ACC program which is at issue below, believes that they confirm that and the interrelationship of regulatory 20 8 here, in the SAFE proposal.207 83 FR this action is appropriate. provisions with each of the three 43240-43242. On January 9, 2013, EPA granted standards together demonstrates that Since publication of the SAFE CARB's request for a waiver of CARB intended that at least the GHG proposal, California has clarified its preemption to enforce its ACC program and ZEV standards, if not also the LEV "deemed to comply" provision, under regulations pursuant to CAA section standards, would be implemented as a which manufacturers are afforded the 209(b). 78 FR 2112. The ACC program cohesive program. For example, in its option of complying with CARB's GHG comprises regulations for ZEV, tailpipe ACC waiver request, CARB stated that standards by showing that they comply GHG emissions standards, and low- the "ZEV regulation must be considered with the applicable federal GHG emission vehicles (LEV) regulations 209 in conjunction with the proposed LEV standards. As amended, CARB's for new passenger cars, light-duty III amendments. Vehicles produced as a "deemed to comply" provision now trucks, medium-duty passenger result of the ZEV regulation are part of provides that compliance with CARB's vehicles, and certain heavy-duty a manufacturer's light-duty fleet and are GHG standards can be satisfied only by vehicles, for MY 2015 through 2025. therefore included when calculating complying with the federal standards as Thus, in terms of the scope of coverage fleet averages for compliance with the those standards were promulgated in of the respective state and federal LEV III GHG amendments." CARB's 2012. In other words, while the content programs, the ACC program is Initial Statement of Reasons at 62-63.212 of CARB's GHG standards has never comparable to the combined Federal CARB also noted "[b]ecause the ZEVs been identical to the corresponding Tier 3 Motor Vehicle Emissions have ultra-low GHG emission levels that Federal standards, the "deemed to Standards and the 2017 and later MY are far lower than non-ZEV technology, comply" provision as originally Light-duty Vehicle GHG Standards, with they are a critical component of designed, and as it existed when EPA an additional mandate to force the automakers' LEV III GHG standard issued the January 2013 waiver, would development and deployment of non- compliance strategies." Id. CARB have shielded automobile internal-combustion-engine technology. further explained that "the ultra-low manufacturers from having to comply According to CARB, the ACC program GHG ZEV technology is a major with two conflicting sets of standards was intended to address California's component of compliance with the LEV unless they chose to do so. After the near and long-term ozone issues as well III GHG fleet standards for the overall December 2018 amendment, however, as certain specific GHG emission light duty fleet." Id. CARB's request also CARB's regulations now contain within reduction goals.210 78 FR 2114. See also repeatedly touted the GHG emissions them a mechanism which will 78 FR 2122, 2130-2131. The ACC benefits of the ACC program. Up until automatically impose that state of affairs 2 0 8 the ACC program waiver request, CARB the moment that the Federal EPA does not take any position at this point had relied on the ZEV requirements as government should exercise its on what effect California's December 2018 a compliance option for reducing authority to revise its standards. amendment to its "deemed to comply" provision, or its July 2019 "framework" announcement, may criteria pollutants. Specifically, California has further recently of their own force have had on the continued California first included the ZEV announced a "voluntary agreement" validity of the January 2013 waiver. EPA may requirement as part of its first LEV with four automobile manufacturers address that issue in a separate, future action. program, which was then known as LEV 209 The LEV regulations in question include that, among other things, requires the I, that mandated a ZEV sales automobile manufacturers to refrain standards for both GHG and criteria pollutants (including ozone and PM). requirement that phased-in starting with from challenging California's GHG and 210 "The Advanced Clean Cars program... will the 1998 MY through 2003 MY. EPA ZEV programs. This "voluntary reduce criteria pollutants ... and ... help issued a waiver of preemption for these agreement" further provides that achieve attainment of air quality standards; The regulations on January 13, 1993 (58 FR California will accept automobile Advanced Clean Cars Program will also reduce greenhouse gases emissions as follows: by 2025, 4166 (January 13, 1993). Since this manufacturer compliance with a less CO2 equivalent emissions will be reduced by 13 initial waiver of preemption, California stringent standard (and one that extends million metric tons (MMT) per year, which is 12 has amended the ZEV requirements the phase-in of the GHG standard from percent from base line levels; the reduction multiple times and EPA has 2025 to 2026) than either the California increases in 2035 to 31 MMT/year, a 27 percent program that was the subject of the 2013 reduction from baseline levels; by 2050, the 21 1 proposed regulation would reduce emissions by As discussed above, California has further waiver or the Federal standards as more than 40 MMT/year, a reduction of 33 percent entered into a voluntary agreement with four promulgated in 2012. Neither from baseline levels; and viewed cumulatively over automobile manufacturers that amongst other California's amendment of its "deemed the life of the regulation (2017-2050), the proposed things, purports to allow compliance with a less to comply" provision, nor its more Advanced Clean Cars regulation will reduce by stringent program than either the program that was more than 850 MMT CO2-equivalent, which will the subject of the 2013 waiver or the Federal recent announcement of the new help achieve the State's climate change goals to standards promulgated in 2012. See https:// reduce the threat that climate change poses to www.gov.ca.gov/201907/25/california-and-major- 207 A complete description of the ACC program, California's public health, water resources, automakers-reach-groundbreaking-framework- as it existed at the time that CARB applied for the agriculture industry, ecology and economy." 78 FR agreement-on -clean-emission -standards/ (last 2013 waiver, can be found in CARB's waiver 2114. CARB Resolution 12-11, at 19, (January 26, visited Aug. 30, 2019). request, located in the docket for the January 2013 2012), available in the docket for the January 2013 212 Available in the docket for the January 2013 waiver action, Docket No. EPA-HQ-OAR- 2012- waiver action, Document No. EPA-HQ-OAR-2012- waiver decision, Docket No. EPA-HQ-OAR-2012- 0562. 0562, the docket for the ACC program waiver. 0562. 51330USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 28 of 61 subsequently granted waivers for those emission regulations include an denial, EPA further explained that its amendments. Notably, however, in the optional compliance provision that previous reviews of California's waiver ACC program waiver request, California allows manufacturers to demonstrate request under CAA section 209(b)(1)(B) also included a waiver of preemption compliance with CARB's GHG had usually been cursory and request for ZEV amendments that standards by complying with applicable undisputed, as the fundamental factors related to 2012 MY through 2017 MY Federal GHG standards. This is known leading to California's air pollution and new requirements for 2018 MY as the "deemed to comply" provision. problems-geography, local climate through 2025 MY (78 FR 2118-9). Since proposal, California has amended conditions (like thermal inversions), Regarding the ACC program ZEV its regulations to provide that the significance of the motor vehicle requirements, CARB's waiver request "deemed to comply" provision only population-had not changed over time noted that there was no criteria applies to the standards originally and over different local and regional air emissions benefit in terms of vehicle agreed to by California, the federal pollutants. These fundamental factors (tank-to-wheel-TTW) emissions government, and automakers in 2012. In applied similarly for all of California's because its LEV III criteria pollutant other words, automobile manufacturers air pollution problems that are local or fleet standard was responsible for those would not be able to rely on the regional in nature. In the 2008 GHG emission reductions.213 CARB further "deemed to comply" provision for any waiver denial, EPA noted that noted that its ZEV regulation was revision to those 2012 standards. atmospheric concentrations of GHG are intended to focus primarily on zero California has further entered into a substantially uniform across the globe, emission drive-that is, battery electric voluntary agreement with four based on their long atmospheric life and (BEVs), plug-in hybrid electric vehicles automobile manufacturers that amongst the resulting mixing in the atmosphere. (PHEVs), and hydrogen fuel cell other things, requires the automobile EPA therefore posited that with regard vehicles (FCVs)-in order to move manufacturers to refrain from to atmospheric GHG concentrations and advanced, low GHG vehicles from challenging California's GHG and ZEV their environmental effects, the demonstration phase to programs, and provides that California California specific causal factors that commercialization (78 FR 2122, 2130- will accept automobile manufacturer EPA had considered when reviewing compliance with a less stringent 31). Specifically, for 2018 MY through previous waiver applications under 2025 MY, the ACC program ZEV standard than either the California CAA section 209(b)(1)(B)-the program that was the subject of the 2013 requirements mandate use of geography and climate of California, and waiver or the Federal standards as technologies such as BEVs, PHEVs and the large motor vehicle population in promulgated in 2012. FCVs, in up to 15% of a manufacturer's California, which were considered the As explained in the SAFE proposal California fleet by MY 2025 (78 FR fundamental causes of the air pollution 2114). Additionally, the ACC program (83 FR 83 FR 23245-46), up until the 2008 GHG waiver denial, EPA had in California-do not have the same regulations provide various compliance relevance to the question at hand. EPA interpreted CAA section 209(b)(1)(B) as flexibilities allowing for substitution of explained that the atmospheric compliance with one program requiring a consideration of California's need for a separate motor vehicle concentration of GHG in California is requirement for another. For instance, not affected by the geography and program designed to address local or manufacturers may opt to over-comply climate of California. The long duration with the GHG fleet standard in order to regional air pollution problems and not whether the specific standard that is the of these gases in the atmosphere means offset a portion of their ZEV compliance they are well-mixed throughout the subject of the waiver request is requirement for MY 2018 through 2021. global atmosphere, such that their Further, until MY 2018, sales of BEVs necessary to meet such conditions (73 FR 12156; March 6, 2008). We also concentrations over California and the (since MY 2018, limited to FCVs) 214 in U.S. are substantially the same as the explained that California would California count toward a global average. The number of motor manufacturer's ZEV credit requirement typically seek a waiver of particular aspects of its new motor vehicle vehicles in California, while still a in CAA section 177 States. This is notable percentage of the national total program up until the ACC program known as the "travel provision" (78 FR and still a notable source of GHG 2120).21 5 For their part, the GHG waiver request. We further explained that in the 2008 GHG waiver denial, emissions in the State, is not a significant percentage of the global 213 "There is no criteria emissions benefit from which was a waiver request for only vehicle fleet and bears no closer relation including the ZEV proposal in terms of vehicle GHG emissions standards, EPA had (tank-to-wheel or TTW) emissions." CARB ACC determined that its interpretation of to the levels of GHG in the atmosphere waiver request at 15 (May 2012), EPA-HQ-OAR- CAA section 209(b)(1)(B) as calling for over California than any other 2012-0562-0004. comparable source or group of sources 214 This kind of ZEV technology continues to a consideration of California's need for a separate motor vehicle program was of GHG anywhere in the world. present technological challenges and in 2006, for Emissions of greenhouse gases from instance, EPA granted California a waiver of its ZEV not appropriate for GHG standards standards through the 2011MY but due to feasibility because such standards are designed to California cars do not generally remain challenges declined to grant a waiver for MY 2012 address global air pollution problems in confined within California's local and subsequent model years. See 71 FR 78190; EPA, environment but instead become one EPA ZEV Waiver Decision Document, EPA-HQ- contrast to local or regional air pollution part of the global pool of GHG OAR-2004-0437 (Dec. 21, 2006). problems specific to and caused by 215 On March 11, 2013, the Association of Global emissions, with this global pool of conditions specific to California (73 FR Automakers and Alliance of Automobile emissions leading to a relatively 12156-60). In the 2008 GHG waiver Manufacturers filed a petition for reconsideration of homogenous concentration of GHG over the January 2013 waiver grant, requesting that EPA reconsider the decision to grant a waiver for MYs petition. As explained below, in this action EPA is the globe. Thus, the emissions of motor 2018 through 2025 ZEV standards on technological not taking final action with regard to the proposed vehicles in California do not affect feasibility grounds. Petitioners also asked for determinations under the third waiver prong. California's air pollution problem in any consideration of the impact of the travel provision, Whether and how EPA will respond to the March way that is different from how which they argue raise technological feasibility 2013 petition will be considered in connection with issues in CAA section 177 States, as part of the a potential future final action with respect to the emissions from vehicles and other agency's review under the third waiver prong, CAA proposed third prong determinations set forth in the pollution sources all around the U.S. section 209(b)(1)(C). EPA continues to evaluate the SAFE proposal. (and, for that matter, the world) do. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 29 of 6151331
Similarly, the emissions from federal standards) or CAA section 209(b)(1) provides that "no such waiver California's cars do not only affect the 209(b)(1)(C) (whether "such state will be granted" if the Administrator atmosphere in California but in fact standards" and accompanying finds any of the following: "(A) become one part of the global pool of enforcement procedures are inconsistent [California's] determination [that its GHG emissions that affect the with CAA section 202(a)). Id. at 32759, standards in the aggregate will be at atmosphere globally and are distributed 32780. least as protective] is arbitrary and throughout the world, resulting in B. EPA's Authority To Reconsider and capricious, (B) [California] does not basically a uniform global atmospheric Withdraw a Previously Granted Waiver need such State standards to meet concentration. EPA then applied this Under CAA Section 209(b) compelling and extraordinary reasoning to the GHG standards at issue conditions, or (C) such State standards in the 2008 GHG waiver denial. Having In this action, EPA finalizes its and accompanying enforcement limited the meaning of this provision to proposed determination that it has the procedures are not consistent with situations where the air pollution authority to withdraw a waiver in section [202(a)]." CAA section problem was local or regional in nature, appropriate circumstances. EPA 209(b)(1)(A)-(C), 42 U.S.C. EPA found that California's GHG explains below (in this subsection, II.B) 7543(b)(1)(A)-(C) (emphasis added). standards did not meet this criterion. the basis for its conclusions that it has CAA Section 209(b)(1) is therefore, Additionally, in the 2008 GHG waiver authority to withdraw a waiver in premised on EPA review and grant of a denial, EPA also applied an alternative appropriate circumstances, and (in waiver prior to California's enforcement interpretation where EPA would subsections III.C and III.D) that it is of vehicle and engine standards unless consider effects of the global air appropriate for EPA to exercise that certain enumerated criteria are met. pollution problem in California in authority at this time.216 Congress could have simply carved comparison to the effects on the rest of Agencies generally have inherent out an exemption from preemption the country and again addressed the authority to reconsider their prior under CAA section 209(b)(1), similar to GHG standards separately from the rest actions. Nothing in CAA section 209(b) the exemption it created in CAA section of California's motor vehicle program. indicates Congressional intent to 211(c)(4)(B) for California fuel controls Under this alternative interpretation, remove that authority with respect to and prohibitions. Under CAA section EPA considered whether impacts of waivers that it has previously granted. 211(c)(4)(A), states and political global climate change in California were The text, structure, and context of CAA subdivisions are preempted from sufficiently different from impacts on section 209(b) support EPA's prescribing or attempting "to enforce, the rest of the country such that interpretation that it has this authority. for purposes of motor vehicle emission California could be considered to need And no cognizable reliance interests control, any control or prohibition, its GHG standards to meet compelling have accrued sufficient to foreclose respecting any characteristic or and extraordinary conditions. EPA EPA's ability to exercise this authority component of a fuel or fuel additive in determined that the waiver should be here. a motor vehicle or motor vehicle In considering EPA's authority to denied under this alternative engine" if EPA has prescribed a control interpretation as well. 83 FR 23245-46. withdraw a waiver, it is clear that EPA or prohibition applicable to such has authority to review and grant characteristic or component of the fuel In 2009, EPA reversed its previous California's applications for a waiver denial and granted California's or fuel additive under CAA section based on its evaluation of the 211(c)(1). EPA may waive preemption preemption waiver request for its GHG enumerated criteria in CAA section for states other than California to emission standards "for 2009 and later 209(b). In this action, we affirm the prescribe and enforce nonidentical fuel model years." 74 FR 32744. EPA Agency's proposed view that the controls or prohibitions subject to announced that it was returning to what absence of explicit language with regard certain it styled as the traditional interpretation to withdrawal of a waiver does not conditions. Further, waivers are not required where states adopt state of CAA section 209(b)(1)(B), under foreclose agency reconsideration and fuel controls or prohibitions that are which it would only consider whether withdrawal of a waiver. California had a "need for its new motor As explained at proposal, California's identical to federal controls or for vehicle emissions program as a whole," ability to obtain a waiver under CAA California to adopt fuel controls and id. at 32761. It determined that section 209(b)(1) in the first instance is prohibitions. CAA sections California did, based on ongoing not unlimited. Specifically, CAA section 211(c)(4)(A)(ii) and 211(c)(4)(B). This NAAQS attainment issues. Id. at 32762- stands in stark contrast to CAA section 32763. In the alternative, while not 216 As a general matter, for purposes of 209(b), which requires EPA to make a adopting either of the 2008 waiver determining if withdrawal is appropriate, EPA may judgment about California's request for denial's alternative approaches, EPA initiate reconsideration sua sponte where CARB a waiver of preemption.217 Notably, also determined that California needed amends either a previously waived standard or CAA section 211(c)(4)(B) also cross- accompanying enforcement procedure. 47 FR 7306, references CAA section 209(b)(1): "(B) its GHG standards as part of its NAAQS 7309 (Feb. 18, 1982). See also 43 FR 998 (January attainment strategy due to the indirect 5, 1978) (Grant of reconsideration to address Any State for which application of effects of climate change on ground- portions of waived California's motorcycle program section 7543(a) of this title has at any level ozone formation, id. at 32763, and that California substantially amended). time been waived under section Additionally, if California acts to amend either a 218 that waiver opponents had not met their previously waived standard or accompanying 7543(b) of this title may at any time burden of proof to demonstrate that enforcement procedure, the amendment may be 217 "Noteworthy is the fact that under the terms California climate impacts "are not considered to be within-the-scope of a previously sufficiently different" to nationwide granted waiver provided that it does not undermine of the Act, EPA approval of California fuel California's determination that its standards, in the regulations is not required. See Act section impacts, id. at 32765. EPA also aggregate, are as at least as protective of public 211(c)(4)(B), 42 U.S.C. 7545(c)(4)(B)." (Emphasis in determined that there were no grounds health and welfare as applicable Federal standards, original.) Motor Vehicle Mfrs. Ass'n v. NYS Dep. of does not affect its consistency with section 202(a) Envti'l Conservation, 17 F.3d 521, 527 (2d Cir. 1994). to deny the waiver under CAA section 21 8 CAA 209(b)(1)(A) (whether the State's of the Act, and raises no new issues affecting EPA's section 211(c)(4)(B), 42 U.S.C. previous waiver decisions. See, e.g., 51 FR 12391 7545(c)(4)(B). This provision does not identify determination that its standards in the (April 10, 1986) and 65 FR 69673, 69674 (November California by name. Rather, it references CAA aggregate are at least as protective as 20, 2000). Continued 51332USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 30 of 61 prescribe and enforce, for the purpose of arise that suggest that such predictions Further, as discussed in the SAFE motor vehicle emission control, a may have been inaccurate, it necessarily proposal, the legislative history of CAA control or prohibition respecting any follows that EPA has authority to revisit section 209(b) confirms that Congress fuel or fuel additive." CAA section those predictions with regard to rules intended EPA's authority under CAA 211(c) (4) (B). promulgated under CAA section 202(a), section 209(b) to include the authority Under the third waiver prong, CAA the requirements of that section, and to withdraw a previously granted waiver section 209(b)(1)(C), for example, EPA is their relation to the California standards under appropriate circumstances. 83 FR to review the consistency of California's at issue in a waiver request, and, on 43242-43243. See S. Rep. No. 50-403, at standards with CAA section 202(a), a review, withdraw a previously granted 34 (1967) ("Implicit in this provision is provision of the Clean Air Act that EPA waiver where those predictions proved the right of the [Administrator] to solely implements.219 CAA Section to be inaccurate. withdraw the waiver at any time [if] 202(a) provides in relevant part that Under CAA section 202(a), standards after notice and an opportunity for standards promulgated under this are often technology-forcing and thus public hearing he finds that the State of section "shall take effect after such involve predictions on the part of EPA California no longer complies with the period as the Administrator finds with regard to future trends in conditions of the waiver."). necessary to permit the development technological and economic factors. Some commenters that oppose the and application of the requisite This calls for "substantial room for proposed withdrawal of the waiver technology, giving appropriate deference to the EPA's expertise in concede that the agency may review consideration to the cost of compliance projecting the likely course of California's waiver applications under within such period." development." Natural Resources the third waiver prong but then argue In tying the third waiver prong to Defense Council v. EPA (NRDC), 655 that such agency review is a "narrow CAA section 202(a), Congress gave a F.2d 318, 331 (D.C. Cir. 1981) one." 222 Under CAA Section 209, they clear indication that, in determining (upholding EPA's lead time projections contend, grants California "maximum whether to grant a waiver request, EPA for emerging technologies as authority" to set engine and vehicle is to engage in a review that involves a reasonable). The D.C. Circuit has standards. Commenters' objection to the considerable degree of future prediction, recognized that EPA might modify instant withdrawal therefore appears to due to the expressly future-oriented standards "if the actual future course of be grounded in some belief that CAA terms and function of CAA section technology diverges from expectation." section 209(b) calls for complete 202(a).220 In turn, where circumstances Id. at 329. It cannot be that EPA has the deference to California. This view is inherent authority to revisit and revise erroneous. EPA has in fact previously section 209(b), which applies on its face to "any its own determinations under CAA initiated reconsideration under the third State which has adopted standards (other than section 202(a), but it lacks authority to crankcase emission standards) for the control of waiver prong, CAA section 209(b)(1)(C), emissions from new motor vehicles or new motor revisit those same determinations under in order to "vacate that portion of the vehicle engines prior to March 30, 1966." California CAA section 209(b).221 waiver previously granted under section is the only State that meets this requirement. See Thus, the structure of the statute- S. Rep. No. 90-403 at 632 (1967). 209(b)" in response to CARB's post 219 where State standards may only be waiver modification for previously EPA has explained that California's standards granted a waiver under CAA section are not consistent with CAA section 202(a) if there waived standards. 47 FR 7309. In that is inadequate lead time to permit the development 209(b) to the extent that they are reconsideration action, EPA affirmed of technology necessary to meet those requirements, consistent with CAA section 202(a)- the grant of a waiver in the absence of given appropriate consideration to the cost of confirms that EPA has inherent "findings necessary to revoke compliance within that time. California's authority to reconsider its prior accompanying enforcement procedures would also California's waiver of Federal be inconsistent with CAA section 202(a) if the determination that a request for a waiver preemption for its motorcycle fill-pipe Federal and California test procedures were for California standards met the criteria and fuel tank opening regulations." 43 inconsistent. Legislative history indicates that of CAA section 209(b). This renders FR 7310. Additionally, EPA has under CAA section 209(b)(1)(C), EPA is not to grant untenable the stance taken by some a waiver if it finds that there is: "Inadequate time explained that reconsideration will be to permit the development of the necessary commenters that EPA is somehow initiated where leadtime concerns arise precluded from conducting technology given the cost of compliance within that a after the grant of an initial waiver. "If time period." H. Rep. No. 728, 90th Cong., 1st Sess. subsequent review and withdrawing a California's leadtime projections later 21 (1967); "That California standards are not waiver even when it becomes aware that consistent with the intent of section 202(a) of the prove to have been overly optimistic, its initial predictions in this regard have Act, including economic practicability and the manufacturer can ask that California proven inaccurate. technological feasibility." S. Rep. No. 403, 90th reconsider its standard, if they are Cong. 1st Sess. 32 (1967). unsuccessful in securing such relief, the 220 There is another textual indication that EPA's enforcement actions under a program that it has grant of a waiver is not limited to a snapshot in already "adopt[ed]." Under either scenario, the time, with the Agency having no authority to ever prohibition on "attempt[ing] to enforce" envisions 222 According to several commenters, CAA revisit, reconsider, and, where appropriate, modify state activity outside the scope of what can be section 209(b) contains no express delegation of or withdraw waivers that it has previously granted. determined by EPA from the face of a waiver authority to EPA to withdraw a waiver, and in CAA section 209(b) provides authority to waive the submission. The prohibited activity is not limited proposing to revoke a previous waiver "EPA has preemptive provision of CAA section 209(a). CAA to that which can be subject to a snapshot, one- arrogated to itself power only Congress can section 209(a) forbids states from "adop[ting] or time-only waiver application, which is further exercise." Comments of the Center for Biological attempt[ing] to enforce" vehicle emission standards; support for the conclusion that EPA has authority Diversity, Conservation Law Foundation, so states cannot do so without or beyond the scope to reconsider its action on such applications in light EarthJustice, Environmental Defense Fund, of a waiver. EPA must presume that "attempt to of activity later in time than or outside the Environmental Law and Policy Center, Natural enforce" is not surplusage; it must mean something, authorized scope of a waiver once granted. Resources Defense Council, Public Citizen, Inc., and its potential meanings all suggest some ability 221 According to one commenter, "it would be Sierra Club, and Union of Concerned Scientists at on EPA's part to consider actions on the state's part very odd if § 209(b) waivers were a one-way ratchet 68. One commenter also argued that either EPA separate from the state's "adopt[ion]" of statutory that could be granted but never rescinded. . . . For lacks authority to revoke a previously granted or regulatory provisions and submission to EPA of example, it would run contrary to the statutory waiver or that any authority to do so is "limited." a waiver request for those provisions. An "attempt scheme to require EPA to leave a waiver in place "The unique text and structure of this section limits to enforce" could potentially mean either a state's even after the compelling and extraordinary EPA's authority, contrary to EPA's assertion of attempt to de facto control emissions without conditions that justified the waiver are fully open-ended revocation authority in the proposal." having de jure codified emissions control addressed." Comments of the Alliance of Comments of the California Air Resources Board at requirements, or it could refer to a state's Automobile Manufacturers at 182. EPA agrees. 340. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 31 of 6151333 manufacturers could petition EPA to this amendment was either intended to provide for such review."); Mazaleski v. reconsider the waiver." 49 FR 18895, deprive EPA of authority to withdraw a Treusdell, 562 F.2d 701, 720 (D.C. Cir. 18896 n.104. Further, EPA has in the previously granted waiver when the 1977) ("[A]n agency has the inherent past repeatedly denied portions of Administrator finds applicable one or power to reconsider and change a several waiver requests. 223 EPA has also more of the three criteria in CAA section decision if it does so within a historically deferred or limited the 209(b)(1) under which a waiver is reasonable period of time."); Belville terms of its grant of aspects of some inappropriate, or that the amendment Min. Co.v. United States, 999 F.2d 989, waiver requests as a means of ensuring can be reasonably construed to have had 997 (6th Cir. 1993) ("Even where there consistency with CAA section 202(a).224 such effect. There is no indication that is no express reconsideration authority It is precisely these kinds of EPA actions the amendment was intended to alter for an agency, however, the general rule that have forestalled withdrawal of any EPA's authority under the original is that an agency has inherent authority waiver to date-not any lack of provision. Nor did the amendment alter to reconsider its decision, provided that authority on EPA's part to withdraw. the language of the criteria enumerated reconsideration occurs within a None of the commenters, however, in CAA section 209(b). In any event, as reasonable time after the first provided explanations as to why their previously discussed above, EPA has decision."). apparent view of maximum deference to initiated reconsideration for purposes of The commenters' position that EPA California is not implicated by EPA's revoking a waiver since the 1977 CAA does not have any authority to authority to either deny a waiver request amendments. See for example, 47 FR reconsider either a grant or a denial of or to modify the terms of a waiver 7306 (Feb.18,1982) (Agency a waiver founders in light of these request in the course of granting one. reconsideration of grant of waiver for principles. As explained in the SAFE And EPA's 2009 reversal of its 2008 purposes of withdrawal in response to proposal, 83 FR 43242-43243, EPA does denial supports, and demonstrates the CARB's post waiver modification for have that authority, in part because its long-held nature of, its position that previously waived standards). interpretations of the statutes it EPA has authority to reconsider and Some commenters question whether administers "are not carved in stone." reverse its actions on waiver EPA has any authority at all to Chevron U.S.A. v. NRDC, 467 U.S. 837, 5 applications.22 reconsider a previously granted waiver. 863 (1984). An agency "must consider At least one commenter argued that It is well-settled, however, that EPA has varying interpretations and the wisdom this legislative history did not support inherent authority to reconsider, revise, of its policy on a continuing basis." Id. the position that EPA has authority to or repeal past decisions to the extent at 863-64. Notably, in response to withdraw a previously granted waiver permitted by law. At proposal, EPA CARB's request, EPA has previously because the legislative history relates to reconsidered and reversed a previous explained that, although CAA section 22 7 the original creation of the waiver 209(b)(1) may not expressly waiver denial. Similarly, in keeping provision in the Air Quality Act of 1967, communicate that EPA has authority to with agency CAA section 209(b)(1) whereas the Clean Air Act Amendments reconsider and withdraw a waiver, both practice, EPA has reconsidered its of 1977 revised language in the root text the legislative history of the waiver previous decision to grant a waiver for of CAA section 209(b)(1). Specifically, provision and fundamental principles of portions of California's motorcycle Congress in 1977 amended CAA section administrative law establish that EPA program in response to a petition for 209(b)(1) to establish as a prerequisite necessarily possesses that authority. The reconsideration from the motorcycle for the grant of a waiver that the State authority to reconsider prior agency industry.228 determine that its standards "will be, in decisions need not be rooted in any Other commenters assert that EPA's the aggregate, at least as protective of particular "magic words" in statutory proposal to withdraw the waiver is public health and welfare as applicable text. Subject to certain limitations, solely based on a change in Presidential Federal standards" for EPA to issue a administrative agencies possess administration. There is no basis for this waiver, rather than the original inherent authority to reconsider their claim. While EPA noted in the SAFE requirement that State standards be decisions. See ConocoPhillipsCo. v. proposal that the agency can review and "more stringent" than corresponding EPA, 612 F.3d 822, 832 (5th Cir. 2010) reconsider a prior decision "in response federal standards.226 EPA disagrees that ("Embedded in an agency's power to to . . .a change in administration," make a decision is its power to National Cable & Telecommunications 22338 FR 30136 (November 1, 1973) (denial of reconsider that decision."); Dun & Ass'n v. Brand X Internet Services, 545 waiver for MY 1975 HC and CO standards "because Bradstreet Corp. Found. v. U.S. Postal U.S. 967, 981 (2005), we further costs of compliance within the lead time remaining Serv., 946 F.2d 189, 193 (2d Cir. 1991) acknowledged that "the EPA must also is excessive."); 43 FR 998 (January 5, 1978) (denial be cognizant where it is changing a prior of waiver for MY 1978 test procedures due to ("It is widely accepted that an agency insufficient lead time); 40 FR 30311 (July 18, 1975) may, on its own initiative, reconsider its position and articulate a reasoned basis (denial of waiver due to insufficient lead time for interim or even its final decisions, for the change." FCC v. Fox Television MY 1977). Stations, Inc., 556 U.S. 502, 515 (2009). 22458 FR 4166 (January 13, 1993) (deferring regardless of whether the applicable 83 FR 43242-43243, 43248. In keeping consideration of portions of waiver request); 67 FR statute and agency regulations expressly 54180, 81 n.1 (August 21, 2002) (granting waiver with the proposed waiver withdrawal, with certain exceptions). under the second waiver prong, CAA 22 constructed to meet both the stringent California 5In seeking reconsideration of the March 8, oxides of nitrogen standard and the stringent section 209(b)(1)(B), as discussed below, 2008 waiver denial, CARB also noted that "EPA has federal carbon monoxide standard. Motor & Equip. EPA in this document finalizes a the inherent authority to reconsider its previous Mfrs. Ass'n, Inc. v. EPA, 627 F.2d at 1110 n.32. EPA determination that California does not waiver denial" 74 FR 32747. has explained that the phrase "in the aggregate" 226The intent of the 1977 amendment was to was specifically aimed at allowing California to accommodate California's particular concern with adopt CO standards less stringent than the 227EPA reconsidered the 2008 GHG waiver denial NOx, which the State regarded as a more serious corresponding federal standards, while at the same in response to CARB's request and granted it upon threat to public health and welfare than carbon time adopting more stringent NOx standards, as reconsideration. 72 FR 32744 (July 9, 2009). See monoxide. California was eager to establish oxides part of California's strategy to address ozone also 43 FR 998 (January 5,1978) (Grant of of nitrogen standards considerably more stringent problems. California reasoned that a relaxed CO reconsideration to address portions of waived than applicable Federal standards, but standard would facilitate the technological California's motorcycle program that California technological developments posed the possibility feasibility of more stringent NOx standards. 78 FR substantially amended). that emission control devices could not be 43247. 22843 FR 998 (January 5,1978). 51334USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 32 of 61 need its GHG and ZEV standards to Further, as earlier noted, California circumstances. EPA is not persuaded by meet compelling and extraordinary has now entered into a voluntary commenters' assertions to the contrary. conditions, within the meaning of those agreement with at least four automobile In this action, EPA affirms the position terms as they are used in the statute, manufacturers that amongst other that the scope of review for California that differs from its determination on things, requires the automobile waivers under CAA section 209(b)(1) the same question made in the course of manufacturers to refrain from includes both a pre-grant review and, granting the ACC program waiver. challenging California's GHG and ZEV where appropriate, post-grant review of Additionally, the agency, in response to programs, and provides that California an approved waiver; that post-grant a request by automobile manufacturers, will accept automobile manufacturer review may, in appropriate who have consistently expressed compliance with a less stringent circumstances, result in a withdrawal of reservations over their ability to comply standard than either the California a prior waiver. A withdrawal action with MY 2022-2025 GHG standards, is program that was the subject of the 2013 could be premised on any one of the reconsidering standards that are the waiver or the Federal standards as three findings in CAA section compliance mechanism for CARB's MY promulgated in 2012.229 This agreement 209(b)(1)(A)-(C) that render a waiver 2022-2025 GHG standards. This is the appears to materially depart from the unavailable. compliance mechanism that California existing grant of waiver for MY 2021- EPA also disagrees with some had provided in response to automobile 2025 GHG standards, is in tension with commenters' assertions that ostensible manufacturers request and support for California's above-mentioned reliance interests foreclose withdrawal the waiver of preemption. amendment of the "deemed to comply" of the waiver for MY 2021-2025 GHG At proposal, EPA noted that provision, and raises an additional and ZEV standards. According to these California had given public notice that reason to question whether California commenters, "California, and the "needs" their existing it was considering amending its standards within section 177 states that have elected to "deemed to comply" provision to the meaning of CAA section adopt those standards as their own have provide that that provision would be 209(b)(1)(B), given that California has incurred reliance interests ultimately applicable only to vehicles that meet the announced it is proceeding to create a flowing from those standards. For standards originally agreed to by new "voluntary" program that would instance, California has incurred California, the federal government, and relax the stringency of some aspects of reliance interests because it is mandated automakers in 2012. See 83 FR 43252 those standards. That is to say, to achieve an aggressive GHG emissions n.589. California finalized that California's apparent weakening of its reduction target for 2030." 232 They amendment to its regulations after the program as it was originally submitted further state: "[b]ut EPA provides no close of the SAFE comment period, in for waiver calls into question whether it justification for applying that change in policy retroactivelyto upend a five-year- late 2018. California more recently, in needs that program. EPA believes that old decision to which substantial July 2019, announced a "framework" this provides additional support for its reliance interests have attached." agreement with certain automakers that conclusion, as set forth in subsections (Emphasis in original).233 purported to establish a "nationwide" III.B and 1II.D, both that it has authority to withdraw its grant of the waiver and The federal GHG standards that EPA standards program different from both promulgated in 2012 included a the 2012 Federal standards and from the that California does not in fact need these waived standards to meet commitment to conduct and complete a California program for which EPA "compelling and extraordinary Mid-Term Evaluation (MTE) of the GHG granted the January 2013 waiver. These conditions," CAA section 209(b)(1)(B), standards for MY 2022-2025, given the actions on California's part, while not if the State is itself already proceeding lengthy phase-in compliance period, proposed as bases for waiver to allow departures from those waived EPA projections of control technology withdrawal in the August 2018 SAFE standards.230 EPA further believes that availability or feasibility for MY 2021- proposal, as those actions had not yet California cannot claim reliance 2025, and the fact that EPA promulgated transpired at the time of proposal, and interests when it is undertaking steps to those standards in a joint action with while not necessary for the finalization alter the status quo. NHTSA, where NHTSA was acting of this action, do provide further In short, the text, structure, and under a statute which limited its support for this action (although EPA history of CAA section 209(b)(1) support promulgation of fuel economy standards does not view them as necessary EPA's authority to withdraw previously to periods of five years. 234 See NRDC, predicates for this action and would be granted waivers.231 At the same time, taking this action even in their absence). nothing in CAA section 209(b)(1) can 232Comments of CARB at 83. Thus, contrary to some commenters' reasonably be read to preclude the 233Comments of States of California, Connecticut, assertions, reconsideration of the grant agency from withdrawing a previously Delaware, Hawaii, Iowa, Illinois, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, of the waiver, and EPA's proposal to issued waiver under appropriate withdraw the waiver, was not solely North Carolina, Oregon, Rhode Island, Vermont and 2 29 Washington, the Commonwealth of Massachusetts, motivated by a change in Presidential https://www.gov.ca.gov/201907/251california- Pennsylvania and Virginia, the District of Columbia, administration. The policy, technical, and-major-automakers-reach-groundbreaking- and the Cities of Los Angeles, New York, Oakland, and legal considerations discussed in framework-agreement-on-clean-emission- San Francisco and San Jose at 123; Comments of stan dards/. CARB at 352. the proposal and in this final action 230 Again, neither California's late 2018 23440 CFR 86.1818-12(h). 77 FR 62624 (October provide the rationale for EPA's actions amendment to its "deemed to comply" provision, 15, 2012). EPA notes in this regard that the here. It is therefore distinguishable from nor its July 2019 announcement of a new Supreme Court in Massachusetts v. EPA, in the instance where, for example, an "framework," are necessary bases for the action rejecting the position that greenhouse gases are not agency undertook reconsideration EPA takes in this document; instead, they provide air pollutants under the general definition of that further support for that action. term in CAA section 302 because, if they were, subsequent to a change in 231 In 2009, EPA reconsidered the 2008 GHG EPA's regulations of GHG emissions from the motor administration because "the withdrawn waiver denial at CARB's request and granted it vehicle fleet could intrude on DOT's fuel economy decision was doubtful in light of upon reconsideration. 74 FR 32744. EPA noted the authority, opined that "[t]he two obligations may changing authority to "withdraw a waiver in the future if overlap, but there is no reason to think the two policies." Coteau Properties circumstances make such action appropriate." See agencies cannot both administer their obligations Co. v. DOI, 53 F.3d 1466, 1479 (8th Cir. 74 FR 32780 n.222; see also id. at 32752-32753 n.50 and yet avoid inconsistency." 549 U.S. 497, 532 1995). (citing 50 S. Rep. No. 403, at 33-34). (2007). In order for the two agencies to do so, they USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 33 of 6151335
655 F.2d at 329 (upholding EPA's lead EPA would be revisiting federal in reaching what, ultimately, appears to time projections for emerging standards and, accordingly, the waiver be the right result on the other." Civil technologies as reasonable, noting a granted for a program that acceded to Aeronautics Bd. v. Delta Air Lines, Inc., longer lead time tends to "give[ ] the those standards through the "deemed to 367 U.S. 316, 321-22 (1961). See also agency greater leeway to modify its comply" provision, neither the State of ConocoPhillips,612 F.3d at 832 (5th Cir. standards if the actual future course of California nor other parties (such as 2010) ("Furthermore, reconsideration technology diverges from expectation."). automakers) have reasonable reliance also must occur within a reasonable The 2012 rulemaking also established interests sufficient to foreclose the time after the decision being the GHG standards for MY 2021-2025 extension of federal standards to reconsidered was made, and notice of that are the subject of the "deemed to California. Likewise, under CAA section the agency's intent to reconsider must comply" provision. (i.e., California 177, even though States other than be given to the parties."); Belville Min. allowed automobile manufacturers to California, under certain circumstances Co. v. United States, 999 F.2d 989, 997 demonstrate compliance with and conditions, may "adopt and (6th Cir. 1993) ("Even where there is no California's GHG standards by enforce" standards that are "identical to express reconsideration authority for an complying with EPA's GHG standards). the California standards for which EPA agency, however, the general rule is that The MTE construct required EPA to has granted a waiver for such model an agency has inherent authority to issue a Final Determination by April 1, year," given that Title 1238 does not call reconsider its decision, provided that 2018 regarding whether the GHG for NAAQs attainment planning as it reconsideration occurs within a standards for MY 2022-2025 remained relates to GHG standards, those States reasonable time after the first appropriate under CAA section that may have adopted California's GHG decision."); Bookman v. United States, 202(a).235 Specifically, the MTE would, standards and ZEV standards for certain 453 F.2d 1263, 1265 (Fed. Cir. 1972) amongst other things, assess the relevant MYs would also not have any reliance (" [A]bsent contrary legislative intent or factors pertinent to setting standards interests as a result of the grant of the other affirmative evidence, this court under CAA section 202(a), such as the ACC program waiver. As previously will sustain the reconsidered decision of feasibility and practicability of the noted, CAA section 177 States also lack an agency, as long as the administrative standards, costs to vehicle reliance interests sufficient to preclude action is conducted within a short and manufacturers and consumers, impacts reconsideration and withdrawal of the reasonable time period."). on the automobile industry, emissions waiver both because they were on notice For the reasons stated above, there impacts, and safety impacts. In of the commitment to review the federal was no "finality" in the federal MY comments during the 2012 national standards, as discussed above.239 2021-2025 GHG standards that EPA GHG rulemaking, automakers supported Relatedly, with the revocation of these promulgated in 2012 in the sense the MTE, and several expressly standards in this action there will be no required for cognizable reliance to predicated their support of the GHG "standards identical to the California accrue sufficient to foreclose EPA's standards for MY 2022-2025 on the standards for which a waiver has been exercise of authority to reconsider and, MTE. 236 In the waiver action, EPA granted" that any state may adopt and if appropriate, withdraw the waiver. Nor reiterated its commitment to the MTE in enforce, under CAA section 177(1).240 is such "finality" to be found in the light of these considerations.237 (States may not "tak[e] any action that January 2013 grant of the waiver for In these circumstances, where GHG has the effect of creating a car different California's MY 2021-2025 GHG and standards were being set far into the from those produced to meet either ZEV standards. As explained at future with an explicit commitment to federal or California emission standards, proposal, in granting the waiver for the revisit them, where California agreed to a so-called 'third vehicle.'" Motor ACC program GHG and ZEV standards, deem compliance with certain federal Vehicle Mfrs. Ass'n of U.S., Inc. v. New EPA had evaluated certain compliance GHG standards to constitute compliance York State Dep't of Envtl. Conservation, flexibilities allowed by California under with California standards, and where all 17 F.3d 521, 528 (2d Cir. 1994)). the third waiver prong, CAA section parties were provided ample notice that California also did not seek approval for 209(b)(1)(C) (consistency with CAA MY 2021-2025 GHG standards in its section 202(a)). Specifically, EPA needed to take account of the fact that DOT's fuel- 2016 SIP approval request. 81 FR 39424, evaluated California regulations that economy authority faces temporal constraints that 27-28 (June 16, 2016). EPA's emissions authority does not. They did so included an optional compliance through the MTE, and the MTE mechanism As a general matter, "[w]henever a provision (the "deemed to comply" provided notice to all interested parties that EPA's question concerning administrative, or provision) that would allow automobile 2012 federal standards under CAA section 202(a), judicial, reconsideration arises, two and engine manufacturers to and EPA's January 2013 waiver grounded in part on opposing policies immediately demand a finding that the State provisions subject to the demonstrate compliance with CARB's waiver were compatible with CAA section 202(a), recognition: The desirability of finality, GHG standards for MY 2017-2025 by would be subject to review and possibly revision on the one hand, and the public interest complying with applicable national or within a few years of the waiver grant. Under these federal GHG standards. 78 FR 2136. circumstances, no reliance interests accrued 238 Under title I of the Clean Air Act, EPA During the waiver proceedings, most sufficient to foreclose EPA's authority to reconsider establishes national ambient air quality standards and withdraw the waiver. (NAAQS) to protect public health and welfare, and automobile manufacturers either 235 The MTE process also called for a "draft has established such ambient standards for ozone, opposed the grant of the waiver for MY Technical Assessment Report" (to be prepared no carbon monoxide, nitrogen dioxide, sulfur dioxide, 2021-2025 GHG and ZEV standards as later than November 15, 2017), public comments on lead, and particulate matter. not consistent with CAA section that draft report, and public comments on whether 239 "This new State authority should not place an the model year 2022-2025 standards are undue burden on vehicle manufacturers who will 202(a) 241 or premised their support for "appropriate" under CAA section 202(a). be required, in any event, to produce vehicles 236 77 FR at 62636, 62652, 62785. meeting the California standards for sale in 24178 FR 2132 (manufacturers suggested that EPA 237 "EPA is committed to conducting a mid-term California." H.R. Conf. Rep. No. 95-294, 95th Cong., should grant California's waiver request after CARB evaluation for MYs 2022-2025 in close 1st Sess. 337 (1977). finalized its regulatory amendments to allow for a coordination with NHTSA and CARB given the 240 A State may not "make attempt[s] to enforce" national compliance option; manufacturers oppose long-time frame in implementing standards out to California standards for which EPA has not waived granting the waiver for the ZEV program past the MY 2025 and given NHTSA's obligation to conduct preemption. Motor Vehicle Mfrs. Ass'n v. IYS Dep. 2017 MY, asserting that those standards will not be a separate rulemaking in order to establish final ofEnvtl Conservation, 17 F.3d 521, 534 (2d Ch. feasible either in California or in the individual standards for vehicles for those years." 78 FR 2137. 1994). Continued 51336USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 34 of 61 those standards on California's Regarding whether EPA is foreclosed stringency of MY 2021-2025 GHG and permitting compliance through the from reconsidering its January 2013 ZEV standards, but also requested "deemed to comply" provision.242 In waver grant due to the passage of time, reconsideration of both the waiver as it comments on the proposed withdrawal, on January 12, 2017, well in advance of relates to the ZEV standards, and the California did not contest this aspect of the April 2018 deadline that it had set 2017 Mid-Term Evaluation that the waiver proceedings. For example, for itself, EPA completed the Mid-Term addresses the "deemed to comply" California in its comments on the SAFE Evaluation called for under the 2012 provision, which California provided in proposal, at page 57, states "[b]ecause national GHG standards, determining response to their request. EPA has also the federal program was expected to that the MY 2017-2025 GHG standards initiated joint rulemaking with NHTSA achieve GHG emission reductions that promulgated in that rulemaking were that proposes amended EPA GHG are equivalent to the California program, appropriate. Automobile manufacturers, standards and fuel economy standards CARB modified its LEV III GHG however, petitioned EPA for for MY 2021-2026. See, the Safer regulation to continue to allow the reconsideration of that January 2017 Affordable Fuel-Efficient (SAFE) 'deemed to comply' option beyond determination. In March 2017, EPA Vehicles Rule for Model Years 2021- model year 2016, by accepting federal granted this petition for reconsideration. 2026 Passenger Cars and Light Trucks. compliance with the EPA standards as 82 FR 14671 (Mar. 22, 2017). In March 83 FR 42986 (Aug. 24, 2018). As also sufficient to demonstrate compliance 2017 California completed its own Mid- previously noted, automobile and with California's standards for the 2017 Term Evaluation review, in which it engine manufacturers operated under through 2025 model years." arrived at different conclusions on the assumption that both California and Additionally, most automobile technological feasibility and costs for national standards would, or at least manufacturers indicated that they these standards than those that EPA could, be revised.247 These would comply with California's GHG would later reach. Subsequently, in circumstances are sufficient to put standards through the "deemed to April 2018, consistent with the timing California and others on notice that comply" provision. Both California and specified in its regulations, EPA revised standards were in flux such that they some automobile manufacturers also its finding on the appropriateness of the could not give rise to reasonable alluded to their expectations that federal MY 2022-2025 GHG standards, reliance interests. Further, CAA section standards would be revised in the future concluding that those standards "are not 177 States do not have any reliance in light of technological feasibility and appropriate and, therefore, should be interests that are engendered by the cost considerations surrounding MY revised." 245 This finding provided withdrawal of the waiver for the MY 44 2022-2025 GHG standards.2432 notice of a reasonable possibility that 2021-2025 GHG and ZEV standards. As these federal GHG standards would previously explained, although CAA CAA section 177 States given the status of the likely be changing.24 6 In the April 2018 section 177 allows States other than infrastructure and the level of consumer demand for action, EPA also withdrew the January California to adopt standards that are ZEVs; dealers suggest that EPA should not grant California a waiver for its ZEV and GHG emission 2017 finding. 83 FR at 16077. Since then promulgated by California and for standards past MY 2018 and 2021, respectively, California has challenged this revised which a waiver of preemption is granted asserting that technical capabilities after that time finding; that challenge is pending in the by EPA pursuant to CAA section 209, are uncertain.). United States Court of Appeals for the 242 "[T]his national compliance option is integral CAA section 177 States may do so only to the commitment letters the industry and District of Columbia. Californiav. EPA, subject to certain conditions and California signed in July 2011 and to the single No. 18-1114 (D.C. Cir. argued Sept. 6, circumstances. None of these conditions national GHG/fuel economy program all 2019). Moreover, California in December and circumstances, however, are at stakeholders sought to achieve." 78 FR 2138. 2018 amended the "deemed to comply" issue in this waiver decision, in light of 243 78 FR 2128. A waiver "will remain an provision in its regulations after the important backstop in the event the national EPA's determination that CAA section program is weakened or terminated;" manufacturers publication of the SAFE proposal, and 177 does not apply to states seeking to note that both the federal and the California GHG in July 2019 announced a putative adopt and enforce CARB's GHG emission standards provide for a comprehensive nationwide framework for vehicle standards. As also previously noted, mid-term evaluation of the MYs 2022-2025; manufacturers clearly state that '[a]ny amendments standards, as discussed above. with the revocation of these standards to California's GHG emission standards made as a These procedural aspects of the in this action, there will be no result of the mid-term evaluation will require federal GHG standards and the grant of "standards identical to the California analysis to determine whether the amendments fall a waiver for California's ACC program standards for which a waiver has been within the scope of this waiver, or, if not, whether they qualify for a separate waiver under Section are indicative of the absence of the granted" that any state may adopt and 209(b) of the Clean Air Act." 78 FR 2132. See also, possibility of reasonable reliance in the enforce, under CAA section 177(1).248 e.g., comments of the National Automobile Dealers "finality" of the waiver, contrary to States may not "tak[e] any action that Association, n.43. On March 11, 2013, the commenters' assertion of reliance has the effect of creating a car different Association of Global Automakers and Alliance of Automobile Manufacturers filed a petition for interests. For instance, as shown above, from those produced to meet either reconsideration of the January 2013 waiver grant, the engine and vehicle manufacturers federal or California emission standards, requesting that EPA reconsider the decision to grant have not only complained about the a so-called 'third vehicle.'" Motor a waiver for MYs 2018 through 2025 ZEV standards on technological feasibility grounds. Petitioners 244 Since the grant of the ACC waiver program, 247 "The manufacture of automobiles is a complex also asked for consideration of the impact of the travel provision, which they argue raise engine and vehicle manufacturers who voiced matter, requiring decisions to be made far in technological feasibility issues in CAA section 177 concerns about the stringency of MY 2021-2025 advance of theft actual execution. The ability of States, as part of the agency's review under the GHG and ZEV standards during the waiver those engaged in the manufacture of automobiles to third waiver prong, CAA section 209(b)(1)(C). EPA proceedings have requested both reconsideration of obtain clear and consistent answers concerning continues to evaluate the petition. As explained the grant of the waiver for the ZEV standards emission controls and standards is of considerable below, in this action EPA is not taking final action (which is a compliance mechanism for the GHG importance so as to permit economies in with regard to the proposed determinations under standards) and aspects of the national GHG production." S. Rep. No. 403, 90th Cong., at 730 1st the third waiver prong. Whether and how EPA will program. Sess. (1967). respond to the March 2013 petition will be 245 Mid-Term Evaluation of Greenhouse Gas 248 A State may not "make attempt[s] to enforce" considered in connection with a potential future Emissions Standards for Model Year 2022-2025 California standards for which EPA has not waived final action with respect to the proposed third Light-Duty Vehicles: Notice; Withdrawal. 83 FR preemption. Motor Vehicle Mfrs. Ass'n v. NYS Dep. prong determinations set forth in the SAFE 16077 (Apr. 13, 2018). of Envtl Conservation, 17 F.3d 521, 534 (2d Cir. proposal. 246 82 FR 14671 (Mar. 22, 2017). 1994). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 35 of 6151337
Vehicle Mfrs. Ass'n of U.S., Inc. v. New to reduce GHG levels to 1990 levels by Reconsideration of aspects of a prior York State Dep't of Envt'l Conservation, 2020;" "In 2009, CARB staff analyzed adjudication whose effects have not yet 17 F.3d 521, 528 (2d Cir. 1994). pathways to meeting California's long- ripened is not barred by Bowen's California's comments argue that EPA term 2050 GHG reduction goals in the proscription on retroactive cannot revisit its waiver with respect to light duty vehicle subsector and rulemaking-otherwise any the ZEV standards in particular because determined that ZEVs would need to reconsideration of agency action would EPA, in a SIP approval action, approved comprise nearly 100 percent of new likewise be barred. ZEV provisions into the State's SIP. vehicle sales between 2040 and 2050, For all these reasons, EPA concludes Final CARB Detailed Comments, at 351. and commercial markets for ZEVs it has authority under CAA section 209 But in so doing, EPA noted that would need to launch in the 2015 to to reconsider its prior grant of the ACC California's GHG provisions were not 2020 time frame." Analysis in support waiver and to withdraw the waiver for SIP submission.249 part of California's of comments of the California Air MY 2021-2025 GHG and ZEV At the time, EPA explained that "CARB Resources Board on the SAFE proposal, standards, consistent with the SAFE has expressly excluded from the August pg. 54, 59 & 83. EPA reviewed proposal. 14, 2015 SIP submittal certain sections California's SIP submission, including or subsections of California code that ZEV measures, as a matter of NAAQS C. The Effect of Preemption Under the have been authorized or waived by EPA compliance strategy. But in the 2012- Energy Policy and ConservationAct under CAA section 209." 250 Further, in 2013 CAA section 209(b) waiver (EPCA) on EPA's Previously Granted the SAFE proposal, EPA explained that proceeding, CARB presented its ZEV Waiver Under CAA Section 209(b) With the proposed withdrawal of the waiver program to EPA solely as a GHG Regard to California'sGHG and ZEV for MY 2021-2025 ZEV standards was compliance strategy-indeed, CARB Standards premised in part on California's explicit expressly stated that the ZEV program indications that compliance with those In the SAFE proposal, EPA explained did not confer NAAQS pollutant its historical practice of reviewing standards formed part of the compliance benefits. "There is no criteria emissions mechanism for MY 2021-2025 GHG waiver requests under the prism of CAA benefit from including the ZEV proposal section 209. Specifically, EPA has standards. For instance, at proposal, we in terms of vehicle (tank-to-wheel or explained "because the ZEV and GHG "historically declined to consider as TTW) emissions." CARB ACC waiver part of the waiver process whether standards are closely interrelated, as request at 15, EPA-HQ-OAR- 2012- demonstrated by the description above 5 2 California standards are constitutional 0562-0004.2 or otherwise legal under other Federal of their complex, overlapping Similarly, some commenters argued compliance regimes, EPA is proposing statutes apart from the Clean Air Act." that EPA reconsideration would 83 FR 42340. See also Motor & Equip. to withdraw the waiver of preemption constitute impermissible retroactive for ZEV standards under the second and Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, action, citing Bowen v. Georgetown 1115 (D.C. Cir. 1979) (MEMA I) "[T]he third prongs of section 209(b)(1)." 83 FR Univ. Hosp., 488 U.S. 204 (1988). 43243. California's responses to the Administrator operates in a narrowly However, the rulemaking which the circumscribed proceeding requiring no SAFE proposal do not rebut the Supreme Court held was impermissibly Agency's views that the ZEV standards broad policy judgments on retroactive in that case had been constitutionally sensitive matters. for MY 2021-2025 are inextricably proposed in February 1984 and had interconnected with the design and Nothing in CAA section 209 requires purported to establish reimbursement him to consider the constitutional purpose of California's overall GHG rates effective July 1, 1981. By contrast, reduction strategy.25 1 According to ramifications of the regulations for here EPA is reconsidering a previous which California requests a waiver."). California, for example, CARB's GHG grant of a waiver of preemption for 53 This historic position was reflected in standards for the 2017 through 2025 future model years 2021-2025.2 MYs are designed to respond to granting the initial ACC program waiver where EPA explained: "Evaluation of California's identified goals of reducing 252 CARB in its SAFE proposal comments refers GHG emissions to 80 percent below to this as an "alleged[]" statement, Final Carb whether California's GHG standards are 1990 levels by 2050 and in the near term Detailed Comments at 351. The SAFE proposal preempted, either explicitly or cited the Waiver Support Document in which CARB implicitly, under [the Energy Policy and 24981 FR 39424, 27-28 (June 16, 2016). made this statement, 83 FR at 43248 n.580. The Conservation Act] EPCA, is not among 25o 81 FR 29427-28. "The excluded provisions statement is directly quoted above. California's comments on the SAFE proposal do not contest that the criteria listed under section 209(b). pertain to: Greenhouse Gas (GHG) exhaust emission California's ACC waiver request expressly EPA may only deny waiver requests standards 2009 through 2016 Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, and disclaimed criteria pollutant benefits from the ZEV based on the criteria in section 209(b), 2017 and subsequent Model Passenger Cars, Light- program, nor do they establish that EPA is and inconsistency with EPCA is not one Duty Trucks, and Medium Duty Vehicles." foreclosed from revisiting the grant of the waiver in of those criteria." 78 FR 2145. But EPA, light of the interpretation of 209(b)(1)(B) adopted 251 Analysis in support of comments of the in the past, has also solicited comments California Air Resources Board on the SAFE below. EPA notes in this regard that California's proposal, at 342. "For example, and relevant here, approach in its ACC waiver request differed from on "whether the Energy Policy and California's Legislature has established an the state's approach in its waiver request for MY Conservation Act (EPCA) fuel economy aggressive GHG emissions reduction target for 2011 and subsequent heavy-duty tractor-trailer GHG standards, where California quantified NOx provisions are relevant to EPA's 2030." "The ZEV mandate is a crucial part of this consideration of the request and to strategy; it 'act[s] as the technology forcing piece of emissions reductions attributed to GHG standards the 2016 Draft TAR program' which is necessary and explained that they would contribute to PM California's authority to implement its because 'the new vehicle fleet [in California] will and ozone NAAQS attainment. 79 FR 46256, 46257 vehicle GHG regulations" and in need to be primarily composed of advanced n.15, 46261, 46262 n.75 (August 7, 2014). response to comments opted to "take[ ] technology vehicles . . . by 2035' in order to meet 253 As explained above, to the extent that the State's 2050 GHG goal." Id. at 369-70 (Internal NHTSA's final determination that EPCA preempts no position regarding whether or not citations omitted). "This increasing ZEV State GHG and ZEV programs, the implications of California's GHG standards are deployment is critical to achieving the statewide that determination for prior EPA waivers of such preempted under EPCA." 74 FR 32744, 2030 and 2045 GHG requirements and 2031 South programs are effective upon the effective date of 32782-83 (July 8, 2008). Coast SIP commitments (the 2016 State SIP Strategy this joint action. Separate and apart from that identified the need for light-duty vehicles to reduce analysis, to the extent that EPA is withdrawing the NOx emissions by over 85 percent by 2031 to meet waiver based on its determination that the waiver criterion, that withdrawal is for model years 2021- federal standards)." Id. at 373. does not meet the CAA section 209(b)(1)(B) 2025, as proposed in the SAFE proposal. 51338USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 36 of 61
In the January 2013 waiver, EPA California programs in other subject their obligations and yet avoid stated: "Evaluation of whether areas to consider factors outside the inconsistency." Id. at 532.) Considering California's GHG standards are statutory criteria in CAA section that California cannot enforce standards preempted, either explicitly or 209(b)(1)(A)-(C). But the unique that are void ab initio, even assuming implicitly, under EPCA, is not among situation in which EPA and NHTSA, arguendo that there existed a valid grant the criteria listed under section 209(b). coordinating their actions to avoid of waiver under CAA section 209(b), EPA may only deny waiver requests inconsistency between their NHTSA's determination renders EPA's based on the criteria in section 209(b), administration of their respective prior grant of a waiver for those aspects and inconsistency with EPCA is not one statutory tasks, address in a joint of California's regulations that EPCA of those criteria. In considering administrative action the issues of the preempts invalid, null, and void, and, to California's request for a waiver, [EPA] preemptive effect of EPCA and its the extent that administrative action is therefore [has] not considered whether implications for EPA's waivers, has no necessary on EPA's part to reflect that 55 California's standards are preempted readily evident analogue.2 EPA will state of affairs, EPA hereby withdraws under EPCA." 78 FR at 2145. not dodge this question here. that prior grant of a waiver on this basis. EPA believes that this January 2013 Consistent with the SAFE proposal, EPA's finding that California's GHG statement was inappropriately broad, to NHTSA is finalizing a determination and ZEV standards are preempted as a the extent it suggested that EPA is that EPCA preempts State GHG and ZEV result of NHTSA's finalized categorically forbidden from ever standards. EPA agrees with commenters determinations, issued in this joint determining that a waiver is that EPA is not the agency that Congress action, with respect to EPCA's inappropriate due to consideration of has tasked with administering and preemptive effect on State GHG and anything other than the "criteria" or interpreting EPCA. This is especially so ZEV standards, is effective upon the "prongs" at CAA section because "[t]he waiver proceeding effective date of this joint action. This 209(b)(1)(B)(A)-(C). The statements produces a forum ill-suited to the finding is separate and apart from quoted above, and EPA's historical resolution of constitutional claims." findings with respect to EPA's 2013 practice of disregarding issues of MEMA L 627 F.2d at 1115. In the SAFE waiver for CARB's Advanced Clean Car "[c]onsistency with EPCA" in the proposal, EPA took the position that it Program as it pertains to its 2021 context of evaluating California's waiver is, at a minimum, reasonable to consider through 2025 MY relating to GHG and applications, were made in the context NHTSA's conclusions about the ZEV standards and accompanying of EPA acting on its own to administer preemptive effect of EPCA. To the CAA section 209(b) in considering such extent that NHTSA has determined that withdrawal of the waiver, pursuant to applications. The context here is these standards are void ab initio CAA section 209(b)(1), as set forth in different: EPA is undertaking a joint because EPCA preempts standards that subsection D below; as a matter of EPA's action with NHTSA. In the SAFE relate to fuel economy, that administration of CAA section 209(b), proposal, EPA noted that NHTSA had determination presents an independent without reference to EPCA's preemptive proposed and could well finalize a basis for EPA to consider the validity of effect as determined by NHTSA, that determination that California's GHG and the initial grant of a waiver for these withdrawal applies to 2021 through 2025 MY GHG and ZEV standards, as ZEV standards are both explicitly and standards, separate and apart from 6 5 4 proposal.25 257 implicitly preempted under EPCA.2 EPA's analysis under the criteria that proposed in the SAFE
EPA explained that such a invalidate a waiver request. In the 6 determination would present a context of a joint action in which our 25EPA acknowledges that its action in this document may have implications for certain prior threshold question as to California's sister agency is determining, and and potential future EPA reviews of and actions on ability to enforce these standards and codifying regulatory text to reflect, that state SIPs that may incorporate certain aspects of proposed to conclude that standards a statute Congress has entrusted it to California's state program, either California's own preempted under EPCA cannot be administer preempts certain State law, SIPs or SIPs from states that have adopted one or afforded a waiver of preemption under EPA will not disregard that conclusion, more aspects of California's state program pursuant to CAA section 177. EPA will consider whether and CAA section 209(b). Unlike the Clean which would place the United States how to address those implications, to the extent Air Act, EPCA does not allow for any Government in the untenable position of that they exist, in separate actions. But EPA waiver of its express preemption arguing that one federal agency can believes that it is not necessary to resolve those provision. EPCA contains no language resurrect a State provision that, as implications in the course of this action because the effects of EPCA preemption, as set forth in that can be read to allow States to either another federal agency has concluded subsection III.C,and the proper interpretation and prescribe or enforce regulations related and codified, Congress has expressly application of CAA section 209(b)(1)(B) to to fuel economy standards. Consistent preempted and therefore rendered void California's GHG and ZEV program, as set forth in with this view, at SAFE proposal, ab initio. subsection II.D, provide sufficient reason to take this final action and that the potential implications NHTSA explained that, "when a State This conclusion is consistent with the for prior and future SIP actions are not a sufficient establishes a standard related to fuel Supreme Court's holding in basis to alter the rationale for or terms of this final economy, it does so in violation of Massachusettsv. EPA, 549 U.S. 497 action. The questions of what EPCA means and EPCA's preemption statute(sic) and the (2007).While this case did not address what its preemptive effect on certain state regulations is, and what CAA section 209(b)(1)(B) standard is therefore void ab initio." 83 EPCA preemption, the Supreme Court means and what its limitations on California's FR 43235. At the same time, NHTSA anticipated that EPA and NHTSA would ability to obtain a waiver for its state programs are, explained that certain other GHG administer their respective authorities do not depend on whether one or more SIP actions requirements that do not relate to fuel in a consistent manner. ("The two pertaining to NAAQS attainment and maintenance obligations [for NHTSA to set fuel strategies may directly or indirectly be affected by economy, such as regulations the agencies' resolution of those questions. addressing leaking refrigerants, would economy standards under EPCA and for 257In the August 2018 SAFE proposal, EPA likely not be preempted under EPCA. 83 EPA to regulate motor vehicle GHG solicited comment on whether one or more of the FR 4324-35. emissions under CAA section 202] may grounds supporting the proposed withdrawal of this EPA does not intend in future waiver overlap, but there is no reason to think waiver would also support withdrawing other proceedings concerning submissions of waivers that it has previously granted. 83 FR at the two agencies cannot both administer 43240 n.559. At this time, EPA does not intend to take action with respect to any prior waiver grants 25449 U.S.C. 32919(a). See 83 FR 43233. 255 See Massachusetts v. EPA. other than those specified above. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 37 of 6151339
D. Reconsideration of January 2013 against the backdrop of traditional, pollution as it relates to section Waiver and Determination That It Is criteria pollutant environmental 209(b)(1)(B)"), and an "alternative" Appropriate To Withdraw EPA's problems, under which all three links in approach that looked at the magnitude January2013 Waiver of CAA Section this chain bear a particularized nexus to of California climate effects compared to 209 Preemptionfor California's GHG specific local California features: (1) the rest of the nation, 73 FR at 12163- and ZEV Standardsfor Model Years Criteria pollutants are emitted from the 12164 ("whether the potential impact of 2021-2025, Pursuantto CAA Section tailpipes of the California motor vehicle climate change resulting from these 209(b)(1)(B) fleet; (2) those emissions of criteria emissions and concentrations will differ 1. Interpretation of CAA Section pollutants contribute to air pollution by across geographic areas and if so 209(b)(1)(B) concentrating locally in elevated whether the likely effects in California ambient levels, which concentration, in amount to compelling and extraordinary Under CAA section 209(b)(1)(B), EPA turn; (3) results in health and welfare conditions"). The 2009 waiver denial cannot grant a waiver request if EPA effects (e.g., from ozone) that are reversal, and the 2013 waiver grant, in finds that California "does not need extraordinarily aggravated in California contrast, applied an interpretation such State standards to meet compelling as compared to other parts of the which EPA styled as a return to the and extraordinary conditions." 258 In the country, with this extraordinary "traditional" interpretation. Under that August 2018 SAFE Proposal, EPA situation being attributable to a approach, EPA determined that proposed to determine: (1) That it was confluence of California's peculiar California "needs" its own vehicle GHG reasonable and appropriate to interpret characteristics, e.g., population density, emissions program "to meet compelling the scope of "such State standards" to transportation patterns, wind and ocean and extraordinary conditions," a authorize a consideration of whether currents, temperature inversions, and determination that was predicated on California needs to have its own GHG topography. In the case of GHG what was then EPA's view that, in the vehicle emissions program specifically, emissions from motor vehicles, case of such later-adopted programs, rather than whether California needs however, this particularized nexus to satisfaction of the "need" criterion of any separate vehicle emissions program California's specific characteristics is CAA section 209(b)(1)(B) was effectively at all; and (2) that California did not missing: (1) The GHG emissions from automatic, being derivative as it were of "need" its own GHG and ZEV programs California cars are no more relevant to the State's having long ago established "to meet compelling and extraordinary the pollution problem at issue (i.e., a "need" to have some form of its own conditions" within the meaning of the climate change) as it impacts California vehicle emissions program (i.e., its statute. EPA finalizes those than are the GHG emissions from cars criteria pollutant program for which it determinations in this document. being driven in New EPA notes in this regard that York, London, had already received many waivers). In conjunction with this, EPA also pointed regulation of emissions from new motor Johannesburg, or Tokyo; (2) the vehicles and new motor vehicle engines resulting air pollution, i.e., elevated to the effects of climate change on under CAA section 202(a) is triggered by concentrations of GHG in the upper certain criteria pollutant impacts. See 74 a determination that "the emission of atmosphere, is globally mixed; (3) the FR at 32746; 78 FR at 2125 et seq. any air pollutant from any class or health and welfare effects of climate In this action, EPA adopts an classes of new motor vehicles or new change impacts on California are not interpretation of CAA section extraordinary to that state and to its motor vehicle engines . . . cause, or 209(b)(1)(B) that it concludes is more in contribute to, air pollution which may particular characteristics. Although EPA accord with the text, structure, purpose, reasonably be anticipated to endanger concludes that all three of these aspects and legislative history of that provision public health or welfare." This are lacking in the case of GHG, EPA than were either the position in the "endangerment finding," which triggers further concludes that it is the 2008 denial (because it does not EPA's ability to use the CAA section connection between all the three which separate causal issues and effects issues 202(a) regulatory authority which CAA is the original motivation for Congress's into alternatives) or the position the creation section 209(a) preempts the states from of the waiver. It is that original 2009 and 2013 grants (because it exercising (subject to the availability of motivation that informs the proper considers application of CAA section a CAA section 209(b) preemption understanding of what CAA section 209(b)(1)(B) to California's need for a waiver), links (1) emission of pollutants 209(b)(1)(B) requires. GHG/climate program, rather than from sources; to (2) air pollution; and (3) It is important to note that, while this subordinating that consideration to resulting endangerment to health and interpretation of CAA section California's need for a criteria pollutant 59 welfare.2 209(b)(1)(B) departs in major respects program). Under this interpretation, Congress enacted waiver authority for from the interpretation applied in the EPA begins by noting that only one California under CAA section 209(b) 2009 waiver denial reversal (74 FR state, California, is entitled to apply 32744) and the 2013 waiver grant (78 FR under CAA section 209(b) for a waiver 258 EPA notes that Congress provided no 2112), it does not simply constitute a re- of the preemptive effect of CAA section definition of the phrase "compelling and adoption of the interpretation applied in 209(a). CAA section 209(a), in turn, extraordinary conditions," and that the phrase the 2008 waiver denial (73 FR 12156). provides that (unless a waiver is issued) appears to be entirely unique, not found anywhere else in the United States Code. The 2008 waiver denial applied what it no state may regulate new motor vehicle 259 We therefore, also disagree with CARB's styled as two alternative approaches to or new motor vehicle engine emissions. argument that EPA's reading of CAA section determining whether California That authority instead is conferred on 209(b)(1)(B) "ignores the statutory structure- "need[ed]" its own vehicle GHG EPA under CAA section 202(a), subject improperly reading Section 209(b) without consideration of the relationship between Sections emissions program to address global to an "endangerment finding." That 202(a), 209(a) and 209(b). Specifically, EPA climate change "to meet compelling and finding requires EPA to consider the proposes to read Section 209(b) as excluding GHGs extraordinary conditions": One that relationship between [1] sources and at the same time that it proposes to continue looked at the causal link between their emissions of pollutants; [2] the regulating GHGs under Section 202(a) and presumes, albeit implicitly, that Section 209(a) California emissions and elevated GHG pollution to which those emissions preempts other States from regulating GHGs." concentrations, 73 FR at 12160 (styled contribute; and [3] resulting impacts on CARB comments at 359. as "the distinct nature of global health and welfare. Congress has 51340USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 38 of 61 therefore, in the elements of the set forth in this subsection, it is and California's desire to reduce GHGs endangerment finding, laid out the appropriate to consider the application as one way to address the adverse terms of what constitutes a pollution of the second waiver prong, CAA impact that climate change may have on problem to provide the appropriate and section 209(b)(1)(B), to California's local ozone conditions." requisite predicate for federal "need" vel non for its own GHG and EPA further notes that elsewhere in regulation. Because CAA section 209(a) ZEV programs, separate and apart from the 2009 waiver denial reversal, EPA expresses Congress's judgment that its "need" for its own criteria pollutant took the position that Massachusettsv. vehicle emission pollution problems are program. EPA determines, based on the EPA supports the view that, because presumptively appropriate only for application of the second waiver prong, "every small reduction is helpful in federal regulation, with one state that California does not "need" its own reducing [climate] concerns. . . .[A] afforded the extraordinary treatment GHG and ZEV programs "to meet reduction in domestic automobile under CAA section 209(b) of being able compelling and extraordinary emissions would slow the pace of global to apply for a waiver from that conditions," notwithstanding EPA's emissions increase no matter what preemption, the best, if not the only, historical determinations that California happens with regard to other reading of the waiver criterion under does so "need" its own criteria emissions," and therefore "opponents CAA section 209(b)(1)(B) is that it pollutant programs. [of the waiver] have not met their requires a pollution problem at the local Furthermore, the fact that GHG burden of demonstrating that level that corresponds in a state-specific emissions may affect criteria pollutant California's motor vehicle program, or particularized manner to the type of concentrations (e.g., increases in its GHG standards, does not have a pollution problem that Congress ambient temperature are conducive to rationalrelationship to contributing to required as the predicate for federal ground-level ozone formation) does not amelioration of the air pollution regulation. satisfy this requirement for a problems in California." Id. at 32766 It is against this backdrop that EPA particularized nexus, because to allow (emphasis added). EPA now departs believes the text of CAA section such attenuated effects to fill in the gaps from this prior position in several 209(b)(1)(B) is best interpreted. would eliminate the function of important respects. Informed by the criteria-pollutant requiring such a nexus in the first place First, to the extent that its 2009 waiver context in which California's pre-1970 and would elide the distinction between denial reversal was guided by an program was enacted, the legislative national and local pollution problems interpretation of the teachings of history, and the principle, as discussed which EPA discerns as underlying the Massachusetts under which any elsewhere in this action, that differential text, structure, and purpose of the reduction in GHG gives warrant for treatment of the states by Congress in a waiver provision. EPA departs in this regulatory action (to include EPA's geographically disparate way is regard from the position it took in the waiver approvals), that must now be extraordinary and is justified only by a 2009 reversal of the 2008 waiver denial, weighed against the Supreme Court's sufficient link between that differential 74 FR at 32763, where it determined subsequent 2014 UARG opinion, which treatment and particularized local facts, that "[t]here is a logical link between stands for the proposition that particular EPA interprets Congress's command in the local air pollution problem of ozone CAA provisions will not necessarily CAA section 209(b)(1)(B), that it may apply identically in the case of GHG not grant a preemption waiver for a (referred to colloquially as "endangerment emissions as they do to criteria California state vehicle emissions findings"), also encompasses carbon dioxide. 549 pollutant emissions. U.S. at 528. But CAA section 209, as a whole, in Second, to the extent that EPA's 2009 program if California does not "need" its preemption provision in 209(a), in the waiver that program "to meet compelling and provision in 209(b), and most specifically in the waiver denial reversal framed the extraordinary conditions," to condition second waiver prong under CAA 209(b)(1)(B), does question under CAA section the issuance of a waiver on a state- not contain the term "pollutant," and EPA does not 209(b)(1)(B) as whether there is a in this document interpret section 209 as simply "rational relationship" between specific pollution problem that maps on establishing a distinction between criteria and GHG to the elements as laid out in CAA pollutants. Rather, for the reasons stated in this California's programs and California's section 202(a): [1] Emissions of document, EPA interprets CAA section 209(b), and air pollution problems, that conflated pollutants; its extraordinary treatment afforded to one state, as the "arbitrary and capricious" test in [2] resulting air pollution; [3] requiring, in its provision in CAA section health and welfare effects from that 209(b)(1)(B) that no waiver shall issue where a state CAA section 209(b)(1)(A) with the resulting air pollution. EPA concludes does not need its own standards "to meet unique and distinct term "need[ed] to that the interpretation of CAA section compelling and extraordinary conditions," as meet compelling and extraordinary requiring a state-specific, particularized nexus conditions" in CAA section 209(b)(1)(B) it adopts in this document between the elements of a pollution problem-i.e., is the best, if not the only, reading of pollutants, pollution, and impacts-as set forth in 209(b)(1)(B); EPA's position in this that provision. CAA section 202(a). CARB asserts that "[t]here is document gives that term a distinct and The Supreme Court's opinion in no reason Section 209(b)(1)(B) should be appropriate meaning and application. UARG, 134 S. Ct. 2427 (2014), instructs interpreted more narrowly than Section 202(a)," Third, whereas the 2009 waiver CARB comments at 360. One such reason is that Clean Air Act provisions cannot perfectly evident: They have different text. Another, denial reversal also noted in this necessarily rationally be applied as discussed in this action, is that CAA 209(b)(1)(B) passage that "there is some evidence in identically to GHG as they are to must be read against the principle that the record that proffers a specific level traditional pollutants.260 For the reasons extraordinary treatment afforded one state must be of reduction in temperature resulting justified by "extraordinary conditions" in that state. from California's regulations," this 26 0 Here, CARB misses the mark when it invokes CARB is wrong to suggest in its comments that Massachusetts's observation that "without action notes elsewhere that the 2012 EPA's interpretation in this action of CAA section regulatory flexibility, changing circumstances and joint rule record reflected that even 209(b)(1)(B) is inconsistent with the Supreme scientific developments would soon render the standards much more stringent than Court's opinion in Massachusettsv. EPA. CARB Clean Air Act obsolete," quoting 549 U.S. at 532. comments at 360. Massachusetts held that the CARB comments at 360. The Supreme Court there either the 2012 Federal standards or general, CAA-wide definition of "air pollutant" at was discussing evolution of scientific California's ACC program would only CAA section 302(g) encompasses carbon dioxide, understanding of what pollutants may pose harm. reduce global temperature by 0.02 and that the text of CAA section 202(a)(1), which Nothing in Massachusetts suggests that scientific provides that EPA shall regulate standards for developments can alter the fundamental degrees Celsius in 2100. As discussed emissions of "any air pollutant" from new motor relationship between the States among themselves elsewhere in this action, EPA concludes vehicles if EPA makes certain predicate findings and vis-a-vis the federal government. that this does not constitute a showing USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 39 of 6151341 that California "needs" its standards to requesting a waiver under the pending dependent on and presupposes the 2 6 1 "meet" climate change, separate from request. existence of, the prohibition under CAA the question whether climate change We did explain, however, that there section 209(a), which forbids (absent a and its impacts on California constitute are reasons to doubt that "such State waiver) any State to "adopt or attempt "compelling and extraordinary standards" is intended to refer to all to enforce any standard [singular] conditions" within the meaning of the standards in California's program, relating to the control of emissions from statute. Further, the claim by some including all standards that it has new motor vehicles or new motor commenters that "incremental progress previously adopted and obtained vehicle engines subject to this part." is progress nonetheless" does not waivers for, because this would limit States are forbidden from adopting a meaningfully address the reality that the EPA's ability to consider and act on standard, singular; California requests waiver would result in an standards that are the subject of waivers seriatim by submitting a particular waiver applications, even indistinguishable change in global standard or package of standards to where that individualized consideration EPA; it follows that EPA considers those temperatures and, based on geographic is reasonable or the only rational submissions as it receives them, variability and measurement sensitivity, approach. Specifically, given that the individually, not in the aggregate with likely no change in temperatures or term "extraordinary" should refer to all standards for which it has previously physical impacts resulting from circumstances that are specific to granted waivers. Further, reading the anthropogenic climate change in California, such as thermal inversions phrase "such State standards" as California. resulting from local geography and wind requiring EPA always and only to EPA proposed to determine that the patterns, and primarily responsible for consider California's entire program in balance of textual, contextual, causing the air pollution problems that the aggregate would limit the structural, and legislative history the standards are designed to address, application of this waiver prong in a evidence supports the conclusion that standards which address pollution way that EPA does not believe Congress the statute is ambiguous in one problems that lack that type of intended. We explained that, under the particular respect: Whether CAA section particularized nexus to California are interpretation where EPA is constrained 209(b)(1)(B) refers to an individual particularly appropriate candidates for to the aggregate approach, once EPA had standard or the California standards as an individualized consideration. EPA determined that California needed its a whole when referring to the affirms this view as it relates to the very first set of submitted standards to Administrator's review of state review of GHG standards, given that meet extraordinary and compelling GHG emissions from in California cars, standards submitted for a waiver, to conditions, EPA would never have the and their consequences for California, determine whether the state "needs discretion to determine that California bear no particular relation to these did not need any subsequent standards such State standards to meet compelling California-specific circumstances-i.e., and extraordinary conditions." We for which it sought a successive global GHG emissions in the aggregate waiver-unless EPA is authorized to explained that "such State standards" in are what present problems for CAA section 209(b)(1)(B) is ambiguous consider a later submission separate California, not California-specific ones. from its earlier finding. Moreover, as with respect to the scope of EPA's The waiver under CAA section 209(b) also explained at proposal, up until the analysis. For example, it is unclear is a waiver of, and is logically ACC program waiver request, whether EPA is meant to evaluate either California's waiver request involved the standard or standards at issue in the 261 California suggests in its comments that EPA is "logically inconsistent" in that it said at individual standards or particular waiver request or all of California's aspects of California's new motor standards in the aggregate. We also proposal, 83 FR at 43246, that the CAA section 209(b)(1)(B) phrase "such State standards" "refers vehicle program. For example, only explained that CAA section 209(b)(1)(B) at least to all of the standards that are the subject GHG standards were at issue in the 2008 not specifically employ terms that of the particular waiver request before the 262 does GHG waiver request denial. 263 could only be construed as calling for a Administrator," while at the same time proposing to reconsider and withdraw the January 2013 grant Several commenters disagreed with standard-by-standard analysis or each of a waiver with respect to some, but not all, of the our view of ambiguity and the proposal individual standard. For example, it components of the ACC program (i.e., with respect to construe "such state standards," in does not contain phrases such as "each to GHG and ZEV, but not LEV). EPA disagrees that the context of our reconsideration and this is inconsistent. The question of how to State standard" or "the State standard." interpret "such state standards" refers to the proposal to withdraw the January 2013 Nor does the use of the plural term determination of what the total set of standards is waiver for California's GHG and ZEV "standards" definitively answer the with regard to which EPA will consider whether provisions, as applying to those question of the proper scope of EPA's California "needs" those standards "to meet provisions themselves, rather than compelling and extraordinary conditions." It is analysis, given that the variation in the reasonable to assign that total set at the level of the California's entire, aggregate program use of singular and plural form of a waiver-request package before the Agency, rather consisting of all California's motor word in the same law is often than all the state-specific emission standards that vehicle emission standards, when insignificant and a given waiver request California has ever adopted. If the consideration considering whether California needs its reveals that, within that set, California does not typically encompasses multiple need particular subsets "to meet compelling and "standards." Thus, we 262 73 FR 12156 (March 6, 2008). explained that extraordinary conditions"-here, because the GHG 26 3 while it is clear that "such State and ZEV programs lack a particularized, California- EPA determines in this document that GHG specific nexus between pollutant, pollution, and emissions, with regard to the lack of a nexus standards" refers at least to all of the impacts, a rationale that does not apply to the LEV between their State-specific sources and their State- standards that are the subject of the program, for which EPA did not propose to specific impacts, and California's GHG standard particular waiver request before the withdraw the waiver and is not in this document program, are sufficiently distinct from criteria Administrator, that phrase could withdrawing the waiver-that is nothing unusual. pollutants and traditional, criteria pollutant And it is consistent with EPA's prior practice, as standards, that it is appropriate for EPA to consider reasonably be considered as referring discussed in subsection IIIB, of only partially whether California needs its own GHG vehicle either to the standards in the entire granting aspects of, in combination with denial or emissions program. EPA does not determine in this California program, the program for deferral of action on other aspects of, some previous document and does not need to determine today similar vehicles, or the particular waivers. The ultimate analysis whether a waiver is how this determination may affect subsequent appropriate is not limited to a binary, all-or-nothing reviews of waiver applications with regard to standards for which California is determination. criteria pollutant control programs. 51342USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 40 of 61
GHG and ZEV provisions to meet term "extraordinary" refers primarily to enact separate standards that address compelling and extraordinary factors that tend to produce higher pollution problems of a more national or conditions within the meaning of CAA levels of pollution: Geographical and global nature. Relevant legislative section 209(b)(1)(B). One commenter climatic conditions (like thermal history also "indicates that Congress argued that this reading would require inversions) that in combination with allowed waivers of preemption for EPA to consider the protectiveness of large numbers and high concentrations California motor vehicle standards California's standards by looking at of automobiles, create serious air based on the particular effects of local them in the aggregate while also pollution problems in California (73 FR conditions in California on the air allowing EPA to consider California's 12156, 12159-60). pollution problems in California." "need" on an individual, standard-by- The text, context, and structure of Congress discussed "the unique CAA section 209(b) support EPA's standard basis. Commenters also argued problems faced in California as a result reasoning that the relevant "conditions" that EPA's historical or traditional of its climate and topography." H.R. are those conditions present in a interpretation was correct. They argued Rep. No. 728, 90th Cong. 1st Sess., at 21 that EPA could not apply a different particular state and that have a particularized nexus to emissions in (1967). See also Statement of Cong. interpretation of "such State standards" Holifield (CA), 113 Cong. Rec. 30942-43 given that "such State standards" in that state. The statute calls for an (1967). Congress also noted the large CAA section 209(b)(1)(B) does not relate examination of whether the "State" effect of local vehicle pollution on such back to the singular "any standard" in needs such "state standards" in the local problems. See, e.g., Statement of CAA section 209(a). They cast this context of a prohibition in CAA section Cong. Bell (CA) 113 Cong. Rec. 30946. reading as "implausible," given that 209(a) of a "state or other political under the rule of last antecedent "such" subdivision" adopting or attempting to As explained at proposal, Congress should properly refer to standards in enforce alternative standards. It would focus was on California's ozone (b)(1) and not 209(a). We disagree. As be inconsistent with the overall problem, which is especially affected by explained earlier above, reading the structure for a state's own preferred local conditions and local pollution. See phrase "such State standards" as policy approach to addressing national Statement of Cong. Smith (CA) 113 requiring EPA always and only to or global-rather than local and state- Cong. Rec. 30940-41 (1967); Statement consider California's entire program in specific-"conditions" to permit a of Cong. Holifield (CA), id., at 30942. the aggregate would limit the waiver from a scheme that otherwise See also, MEMA , 627 F.2d at 1109 application of this waiver criterion. establishes a uniform, national (noting the discussion of California's "peculiar Specifically, it would mean that once policy.264 local conditions" in the EPA determines that California needed Notably, pertinent legislative history legislative history). In sum and as supports this view of the text and its very first set of submitted standards explained at proposal, conditions that structure of 209(b), insofar to meet extraordinary and compelling as it refers to are similar on a global scale are not California's "peculiar local conditions" conditions, EPA would never have the "extraordinary," especially where and "unique problems." S. Rep. No. discretion to determine that California "extraordinary" conditions are a 403, 90th Cong. 1st Sess., at 32 (1967). did not need any subsequent standards predicate for a local deviation from This legislative history also indicates for which it sought a successive that California is to demonstrate national standards, under CAA section waiver-unless EPA is authorized to "compelling and extraordinary 209(b). 83 FR 43247. consider a later submission separate circumstances sufficiently different As further explained in section D2., from its earlier finding. Instead, it is from the nation as a whole to justify below, GHG is a globally distributed reasonable to read CAA section 209(b) standards on automobile emissions pollutant with environmental effects as articulating, first, that EPA shall which may, from time to time, need to that are different from emissions of consider the standards in the aggregate be more stringent than national criteria pollutants. For example, GHG to determine if the State's determination standards." Id. EPA views this as that they are sufficiently protective is emissions from the California vehicle evidence of Congressional intent that fleet bear no more relation to GHG arbitrary and capricious (CAA section separate standards in California are to 209(b)(1)(A)). But, even if this first emissions in California than fleet in be justified by a showing of other parts of the country. As also criterion for denying a waiver is not circumstances in California that are triggered, nevertheless, such a waiver explained in the SAFE proposal, EPA different from circumstances in the believes that the GHG and ZEV shall not be granted as to such standards country at large. Additionally, EPA that are not needed to meet compelling standards are standards that would not views this legislative history as meaningfully address global air and extraordinary conditions, under the demonstrating that Congress did not second waiver denial criterion (CAA pollution problems posed by GHG intend for CAA section 209(b)(1)(B) to emissions, in contrast to local or section 209(b)(1)(B)). Commenters' be based on the need for California to argument, in effect, inserts the word regional air pollution problem with "every" causal ties to conditions in California. (or "all") into CAA section 264 Cf. Ford Motor Co. v. EPA, 606 F.2d 1293, 209(b)(1)(B) in between the words 1301-02 (D.C. Cir. 1979) ("Ford is asking this court Additionally, the impacts of California "need" and "such." to declare that Congress intended to make standards vehicles' GHG emissions on California adopted by California for its own particular are mediated through the context of the Additionally, as shown in further problems, and never substantively reviewed for detail in section D.2., below, the term stringency or national protectiveness by federal global mixture of elevated levels of GHG "extraordinary" refers to circumstances officials, an option which auto manufacturers can in the upper atmosphere. As also shown that are specific to California, such as choose in the rest of the country as an alternative below, EPA finds that while potential to compliance with the federal standards which conditions in California related to global thermal inversions resulting from local Congress determined are in the best interests of the geography and wind patterns, and that nation. We find this reading to be wholly climate change could be substantial, are primarily responsible for causing the implausible."). See also id. at 1303 ("It was clearly they are not sufficiently different from air pollution problems that the standard the intent of the Act that that determination focus the potential conditions in the nation as on local air quality problems . . . that may differ a whole to justify separate state under waiver review is designed to substantially from those in other parts of the address. EPA affirms the view that the nation."). standards under CAA section USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 41 of 6151343
209(b)(1)(B). 265 In this action, EPA is 209(b)(1)(B) be construed as requiring S.Rep. No. 403, 90th Cong., 1st Sess. 33 reviewing a waiver for motor vehicle "California's problems to be entirely (1967); see also FordMotor Co. v. EPA, standards designed to address a global unique or sufficiently different from 606 F.2d 1293,1303 (D.C. Cir. 1979) ("It air pollution problem and its effects, as those in other States." CARB also was clearly the intent of the Act that compared to a local or regional air contends that EPA is limiting that determination focus on local air pollution problem that has causal ties to application of CAA section 209(b)(1)(B) quality problems . . . that may differ conditions in California. EPA must to smog, even though EPA has granted substantially from those in other parts of therefore, review California's GHG waivers for pollutants that do not the nation."). Fourth, EPA's reading of standards in light of the fact that GHG contribute to smog, such as particulate CAA section 209(b)(1)(B) has never been emissions impacts are different from matter. In addition, CARB maintains and is not limited to "smog"-causing criteria pollutants themselves, and that what it characterizes as EPA's pollutants. Here, CARB's comment California must address their need for reading "compelling and extraordinary glosses over extensive discussion in the them as it relates to conditions in conditions" as restricted to "local" or SAFE proposal of the phrase California. In sum, as explained at "regional" pollutants would weaken "compelling and extraordinary" proposal, under our reading of "such Congress's intent that California retain including, for example, legislative state standards" and "extraordinary and its own regulatory program and history indicating that California is to compelling conditions," EPA will continue to lead the nation as a demonstrate "compelling and examine California's need for GHG "laboratory of innovation." CARB extraordinary circumstances sufficiently standards by considering levels of GHG further argues that EPA provides no different from the nation as a whole to emissions emitted from motor vehicles support for this "geographic justify standards on automobile in California to determine if they are distinction," while also casting the emissions which may, from time to specific to California and contribute reading as "illusory." According to time, need to be more stringent than primarily to environmental effects that CARB, both local and global pollution national standards." 83 FR 23427, citing are specific to California. This review, cause compelling and extraordinary S. Rep. No. 403, 90th Cong. 1st Sess., at which calls for a showing of a conditions, as evidenced by provisions 32 (1967). Fifth, as shown in greater particularized causal link between the of the CAA that address long-range detail in section IIID, the phrase standards under review, emissions in transport of emissions (beyond the state "compelling and extraordinary California, and conditions in California, level). In sum, CARB argues that conditions" qualifies the "need" for is similar to agency review of "compelling and extraordinary California's standards. And in a statute California's need for standards designed conditions" is expansive enough to be designed to address public health and to address criteria pollutants and is read as including GHG emissions and welfare, it certainly cannot mean further discussed in section D.2.d, that EPA's "exacting and unrealistic" standards that allow a state to be "a below.266 reading can only be met by "a rare air CARB argues that what it laboratory for innovation" in the pollution problem." CARB comments at abstract, without any connection to a characterizes as EPA's reading of 360-365. "compelling and extraordinary" as need to address pollution problems. equivalent to "unique" or "sufficiently EPA disagrees. First, as explained at Most notably, legislative history different from" the rest of the country proposal, the 1977 Amendments revised explains that CAA section 209(b)(1) was "is inconsistent with Section CAA section 209(b)(1) in only one is intended to recognize California's "unique problems." For example, 209(b)(1)(B), other provisions of the material aspect. Specifically, California in Clean Air Act, and the legislative is required to determine that standards originally adopting the provision, the history." CARB also asserts that EPA it seeks a waiver for will be "in the Senate Committee on Public Works "cites no case" to support this reading. aggregate, at least as protective of public explained that "California's unique At the same time, CARB claims that health and welfare than applicable problems and pioneering efforts EPA has either interpreted legislative Federal standards," rather than the justified a waiver of the preemption "more stringent" history incorrectly or relies entirely on standard under 1967 section to the State of California." S. legislative history for the 1967 CAA, Clean Air Act. 83 FR 43247 n.579. Rep. No. 403, 90th Cong., 1st Sess. 33 which does note California's "unique Second, there is relevant legislative (1967) (emphasis added); see also 113 problems," instead of legislative history history from the 1977 amendments, Cong. Rec. 30948 (bound ed. Nov. for the 1977 amendments; CARB asserts which describes EPA's role in reviewing 2,1967), Statement of Representative that the latter legislative history is more California's protectiveness Harley Staggers, chairman of the House relevant, given that the addition of determination, under CAA section Interstate and Foreign Commerce section 177 in the 1977 CAA meant that 209(b)(1)(A), as whether "the State acted Committee (explaining that "overall Congress did not intend that Section unreasonably in evaluating the relative national interest required risks of various pollutants in light of air administration of controls on motor 265 See Fourth National Climate Assessment, quality, topography, photochemistry vehicle emissions, with special Chapter 25: Southwest, available at https:// and climate in that State." This 1977 recognition given by the Secretary to the nca20l8.globalchange.govlchapter/251.See also legislative history further supports a unique problems facing California as a Intergovernmental Panel on Climate Change (IPCC) Observed Climate Change Impacts Database, reading requiring a particularized result of numerous thermal inversions available at http://sedac.ipcc- data.org/ddc/ nexus. H. Rep. No. 294, 95th Cong., 1st that occur within that state because of observed ar5/index.html. Sess. 302 (1977), U.S. C.C.A.N. 1977, p. its geography and prevailing wind 266 California argues in its comments that EPA has 1381. Third, in support of the proposed patterns), ; id. at 30950, Remarks of Rep. inappropriately reduced the scope of waiver ability under CAA section 209(b) to be narrower than the reading, EPA cited MEMA I as noting Corman ("The uniqueness and the scope of express preemption under CAA section the Senate Committee discussion of seriousness of California's problem is 209(a). EPA disagrees. To the extent that CAA California's "peculiar local conditions" evident-more than 90 percent of the section 209(b)(1)(B), as interpreted and applied in 1967 legislative history for this smog in our urban area is caused by here, precludes a waiver for California's GHG vehicle emissions and ZEV programs, that effect provision in upholding the grant of a automobiles, and in the next 15 years flows from the text and structure of this statutory waiver subsequent to the 1977 CAA the number of automobiles in the state section. amendments.. 627 F.2d at 1109, citing will almost double."). Sixth, while it is 51344USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 42 of 61 true that local and regional pollutants not have a meaningful impact on the underlying conditions and serious air can be transported at greater geographic potential conditions related to global pollution problems when reviewing scales than the state level, the Clean Air climate change. Because EPA has waiver requests.269 California, and Act sets out a comprehensive scheme traditionally interpreted and applied others that oppose the withdrawal of the for addressing air pollution transported CAA section 209(b)(1)(B) in a manner waiver, assert that the relevant inquiry to other regions; see, e.g., CAA sections that examines whether the conditions is merely whether California needs to 126 and 110(a)(2)(D)(i). The fact that the that Congress identified (e.g., have some form of a separate State Act addresses pollutant transport topography number of vehicles, etc.) 267 motor vehicle emissions control elsewhere does not expand the scope of still give rise to serious air quality program to meet compelling and the waiver provision. In contrast, in problems in California, and thus a need extraordinary conditions, not whether CAA section 209(b), Congress set out a for California's own motor vehicle any given standard is needed to meet waiver of preemption for California to emission control program, EPA compelling and extraordinary address automotive pollution that give concludes that this causal-link test is conditions related to that air pollution rise to local and regional air quality the appropriate basis on which to problem. On the other hand, several problems. Finally, to the extent CARB evaluate California's GHG emission commenters that support a withdrawal casts EPA reading as "exacting and standards under the second waiver of the waiver suggest EPA's unrealistic," it mischaracterizes CAA prong, CAA section 209(b)(1)(B).268 determination should be based on section 209(a) and (b), which preempts In general, EPA has in the past whether California needs greenhouse states from adopting and enforcing recognized California's unique gas standards in particular to meet standards for new motor vehicles and compelling and extraordinary engines, with CAA section 209(b) 267 See, e.g., 49 FR 18887, 18890 (May 3, 1984) conditions, asserting that a proposed set allowing for a waiver of the preemption (waiver decision discussing legislative history of of standards must be linked to CAA section 209). in 209(a) only if certain enumerated 268 It is not appropriate for EPA to defer to compelling and extraordinary conditions are met. It is not "a rare air California and other outside parties when EPA is conditions. These commenters suggest pollution problem" that satisfies the interpreting its own statute. By contrast, EPA does that the Act requires EPA to look at the particularized nexus interpretation of defer to California's policy choices when it comes particular "standards" at issue, not the to choosing emissions standards that will best CAA section 209(b)(1)(B) that EPA address the serious air quality problems and entire State program. adopts in this document. Rather, it is impacts on public health and welfare in EPA determines that it in this context the all-too-well understood and California-to the extent that the State standards at it is appropriate to review whether longstanding air pollution problem that issue will actually address pollution and its California needs its GHG standards to consequences that are particular to California. But meet compelling and extraordinary California continues to face: Aggravated the question whether the State regulations at issue criteria pollution at the state and local actually do meet the statutory criterion of being conditions separately from the need for level. necessary "to meet compelling and extraordinary the remainder of California's new motor conditions" in the meaning of the statute, CAA vehicle program, which has historically 2. It Is Appropriate To Apply This section 209(b)(1)(B), is one which EPA must answer. In this regard, EPA notes that it has addressed criteria pollutants with a Criterion to California's GHG Standards particular causal link to local and Separately, Rather Than to California's previously taken the position that "the burden of proof [lies] on the party opposing a waiver," and regional conditions both in the nature Motor Vehicle Program as a Whole that "the burden [is] on those who allege, in effect, and quantity of emissions and in the Under CAA section 209(b)(1)(B) of the that EPA's GHG emission standards are adequate to particularized local and regional California's needs." 78 FR at 2117 (Jan. 2013 waiver Clean Air Act, the Administrator may grant). EPA notes that this previous discussion is impacts of the pollution to which those not grant a waiver if he finds that the distinguishable from the current context in two key emissions contribute. EPA bases this "State does not need such State regards. First, EPA was in 2013 analyzing third decision on the fact that California's standards to meet compelling and parties' opposition to a waiver, rather than GHG standards are designed to address conducting its own analysis of whether a previously extraordinary conditions." EPA granted waiver was appropriately granted. Second, global climate change problems that are proposed to find that CARB does not EPA's change in position in this document does not different from the local pollution need its own GHG and ZEV standards constitute an assertion that "EPA's GHG emission conditions and problems that California to meet compelling and extraordinary standards are [or are not] adequate to California's needs" as a matter of policy. Rather, EPA is has addressed previously in its new conditions in California, on the grounds adopting an interpretation of CAA section motor vehicle program. The climate that "compelling and extraordinary 209(b)(1)(B), specifically its provision that no change problems are different in terms conditions" mean environmental waiver is appropriate if California does not need of the distribution of the pollutants and conditions with causes and effects standards "to meet compelling and extraordinary conditions," similar to the interpretation that it the effect of local California factors, particular or unique to, California adopted in the 2008 waiver denial but abandoned including the local effect of motor whereas GHG emissions present global in the 2009 and 2013 waiver grants, and applying vehicle emissions as differentiated from air pollution problems. Specifically, that interpretation to determine to withdraw the other GHG emissions worldwide on the EPA proposed to determine that the January 2013 waiver for California's GHG and ZEV program for model years 2021 GHG concentrations in California. In GHG-related standards are designed to through 2025. Under that interpretation, the question is not whether 269 address global air pollution and its existing federal standards are "adequate to See American Trucking Associations, Inc. v. consequences, in contrast to local or California's needs," but whether California's Environmental ProtectionAgency, 600 F.3d 624, regional air pollution problems with standards are needed under the meaning of CAA 627 (D.C. Cir. 2010) ("With respect to the statutory section 209(b)(1)(B), which, as set forth in this language, EPA concluded that 'compelling and causal ties to conditions in California. document, requires a particularized nexus between extraordinary conditions' refers to the factors that EPA also proposed to find that, while California-specific pollutant sources, California- tend to cause pollution-the 'geographical and effects related to climate change in specific pollution contributed to thereby, and climate conditions that, when combined with large California could be substantial, they are California-specific pollutants impacts caused numbers and high concentrations of automobiles, thereby. Furthermore, we took comment on burden create serious air pollution problems.' The not sufficiently different from the of proof in the proposal, see 83 FR at 43244 n.567. expansive and statutory language gives California conditions in the nation as a whole to EPA believes it is not necessary to resolve that issue (and in turn EPA) a good deal of flexibility in justify separate State standards under in this action as regardless of whether a assessing California's regulatory needs. We CAA section 209(b)(1)(B). 83 FR 43248- preponderance of the evidence or clear and therefore find no basis to disturb EPA's reasonable compelling evidence standard is applied, the interpretation of the second criterion. See Chevron, 43250. Lastly, EPA proposed to find that Agency concludes that withdrawal of the waiver is USA Inc v. Natural Res. Def. Council 467 U.S. 837, the State's GHG-related standards would appropriate. 842-43.") (citation omitted). USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 43 of 6151345 addition, EPA notes that under its this criterion has typically been cursory to particulate matter in a 1984 waiver traditional interpretation of CAA section due to California needing its motor decision.27 5 In that waiver proceeding, 209(b)(1)(B), where EPA evaluates the vehicle emission program due to California argued that EPA is restricted need for a separate California new motor fundamental factors leading to local and to considering whether California needs vehicle program, conditions such as the regional air pollution problems that to have its own motor vehicle program nature of the air quality problem may were well established at the time of to meet compelling and extraordinary change whereby a particular motor creation of the waiver provision (as conditions, and does not consider vehicle regulation designed for a discussed below), it is appropriate in whether any given standard is necessary specific criteria pollutant is no longer this case to carefully review the purpose to meet such conditions. Opponents of needed to address a serious air quality of CAA section 209(b)(1)(B) when the waiver in that proceeding argued problem (e.g., the underlying air quality applying it to the unique circumstance that EPA was to consider whether problem no longer exists). Therefore, of California's regulation of greenhouse California needed these PM standards to EPA concludes that it is appropriate to gases. By doing so, EPA gives meaning meet compelling and extraordinary examine the need for GHG standards to Congress's decision to include this conditions related to PM air pollution. within California's mobile source provision in CAA section 209(b).272 The Administrator agreed with program to ensure that such standard is Moreover, because both CAA sections California that it was appropriate to look linked to local conditions that giving 209(b)(B) and (C) employ the term "such at the program as a whole in rise to the air pollution problem, that state standards," it is appropriate for determining compliance with CAA the air pollution problem is serious and EPA to read the term consistently section 209(b)(1)(B). One justification of of a local nature, and that the State between prongs (B) and (C). Under CAA the Administrator was that many of the standards at issue will meaningfully section 209(b)(1)(C) EPA conducts concerns with regard to having separate redress that local problem.270 review of standards California has State standards were based on the This waiver decision falls within the submitted to EPA for the grant of a manufacturers' worries about having to context of a few instances of EPA waiver to determine if they are meet more than one motor vehicle applying the CAA section 209(b)(1)(B) consistent with CAA section 202(a).273 program in the country, but that once a criterion to a California waiver request It follows then that EPA must read separate California program was for a fundamentally global air pollution "such state standards" in CAA section permitted, it should not be a greater problem.271 Although EPA's review of 209(b)(1)(B) as a reference to the same administrative hindrance to have to 2 7 4 standards in subsection (C). meet further standards in California. 270 EPA notes in this regard that the position that The Administrator also justified this GHG and climate are no different from criteria a. EPA Practice in Previous Waivers decision by noting that the language of pollutants and criteria air pollution in terms of applicability of the CAA section 209(b) waiver In past waivers that addressed local or the statute referred to "such state regime, and specifically that no particularized regional air pollution, EPA has standards," which referred back to the nexus between in-state emissions and in-state interpreted CAA section 209(b)(1)(B) as use of the same phrase in the criterion impacts is necessary in order to meet the CAA requiring it to consider whether looking at the protectiveness of the section 209(b)(1)(B) "need[ed] . . . to meet compelling and extraordinary conditions," would California needs a separate motor standards in the aggregate. He also effectively read the term "extraordinary" out of the vehicle program to meet compelling and noted that the phrase referred to statute, or reduce it to surplusage with the term extraordinary conditions. Under this standards in the plural, not individual "compelling." Whether GHG emissions and standards. He considered this attendant climate impacts are, in the colloquial approach, EPA does not consider sense, compelling or not is not the relevant whether the specific standards at issue interpretation to be consistent with the question. It is whether they are "compelling and are needed to meet compelling and ability of California to have some extraordinary" within the reasonably interpreted extraordinary conditions related to that standards that are less stringent than the meaning of that term in its context here. Inasmuch as that term in its context requires a particularized air pollutant. For example, EPA federal standards, as long as, under CAA nexus between California emissions, California reviewed this issue in detail with regard section 209(b)(1)(A), in the aggregate its pollution, and California impacts, they are not. standards were at least as protective as 271 See generally California State Motor Vehicle 272 See United States v. Menashe, 348 US 528, the federal standards. Pollution Control Standards; Advanced Clean Car 538-39 (1955) (courts must give effect to every The Administrator further stated that Program; Notice of Decision, January 9, 2013 word, clause, and sentence of a statute). in the legislative history of CAA section Volume 78, Number 6 pp. 2211-2145; California 273 "Technology exists with which to achieve State Motor Vehicle Pollution Control Standards; 209, the phrase "compelling and Greenhouse Gas Emissions from 2014 and California's proposed standards for HC and CO, however, the standards are inconsistent with extraordinary circumstances" refers to Subsequent Model Year Medium- and Heavy-Duty "certain general circumstances, unique Engines and Vehicles; Notice of Decision; December Section 202(a) of the Clean Air Act because the cost 29, 2016 Volume 81, Number 250, pp. 95982- of compliance within the lead time remaining is to California,primarily responsible for 95987; California State Motor Vehicle Pollution excessive." 38 FR 30136 (November 1, 1973). See causing its air pollution problem," like Control Standards; Heavy-Duty Tractor-Trailer also 40 FR 30311 (July 18, 1975); 43 FR 998, 1001 the numerous thermal inversions caused Greenhouse Gas Regulations; Notice of Decision; (Jan. 5, 1978). August 7, 2014 Volume 79, Number 152 pp. 46256 274 Under CAA section 177 states may adopt and by its local geography and wind 46265; California State Motor Vehicle Pollution enforce motor vehicle emissions standards if "such patterns. The Administrator also noted Control Standards; Within-the- Scope Determination standards are identical to the California standards that Congress recognized "the presence for Amendments to California's Motor Vehicle for which a waiver has been granted." See, e.g., and growth of California's vehicle Greenhouse Gas Regulations; Notice of Decision; Motor Vehicle Mfrs. Ass'n v. NYS Dep. of Envtil June 14, 2011 Volume 76, Number 114 pp. 34693- Conservation, 17 F.3d 521, 532 (2d Cir. 1994). population, whose emissions were 34700; California State Motor Vehicle Pollution "Section 177 refers to 'standards relating to control thought to be responsible for ninety Control Standards; Notice of Decision Granting a of emissions ... for which a waiver has been percent of the air pollution in certain Waiver of Clean Air Act Preemption for California's granted.'Id.In enacting § 209(b), which establishes parts of California." 276 EPA reasoned 2009 and Subsequent Model Year Greenhouse Gas California's preemption exception, Congress uses Emission Standards for New Motor Vehicles; July the same words as it did when it allowed California that the term compelling and 8, 2009 Volume 74, Number 129 pp. 32744-32784; to set its own 'standards . . . for the control of extraordinary conditions "does not refer California State Motor Vehicle Pollution Control emissions,' provided the EPA approves a waiver to the levels of pollution directly." Standards; Notice of Decision Denying a Waiver of application. Id. § 7543(b)(1). Hence, the most logical Instead, the term refers primarily to the Clean Air Act Preemption for California's 2009 and reading of § 177 is that New York may adopt only Subsequent Model Year Greenhouse Gas Emission those standards that, pursuant to § 209(b), 275 See 49 FR 18887 (May 3, 1984). Standards for New Motor Vehicles; March 6, 2008 California included in its waiver application to the 6 Volume 73, Number 45 pp. 12156-12169. EPA." (Emphasis in original). 27 1d. at 18890 (emphasis added). 51346USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 44 of 61 confluence of factors that tend to California that will affect directly the does not second-guess California's produce higher levels of pollution of the local population and environment in policy judgment notwithstanding type particular to California: California. The narrow question in this assertions to the contrary. "geographical and climatic conditions waiver proceeding is whether this b. The Distinct Nature of Global GHG (like thermal inversions) that, when interpretation is appropriate when Pollution as It Relates to CAA Section combined with large numbers and high considering motor vehicle standards 209(b)(1)(B) concentrations of automobiles, create designed to address a global air serious air pollution problems." pollution problem and its effects, as The air pollution problem at issue The Administrator summarized that compared to a local or regional air here is elevated atmospheric the question to be addressed in the pollution problem that has particular concentrations of greenhouse gases, and second criterion is whether these causal ties to conditions in California. the concern is the impact these "fundamental conditions" (i.e., the As EPA observed in the SAFE concentrations have on global climate geographical and climate conditions and proposal, the agency has articulated change and the effect of global climate large motor vehicle population) that differing interpretations of CAA section change on California. In contrast to local cause air pollution continued to exist, 209(b)(1)(B). Historically, EPA has or regional air pollution problems, the not whether the air pollution levels for interpreted this provision to require that atmospheric concentrations of these PM were "compelling and California needs to have its own greenhouse gases are substantially extraordinary," nor the extent to which separate new motor vehicle program in uniform across the globe, based on their these specific PM standards will address the aggregate to meet compelling and long atmospheric life and the resulting the PM air pollution problem. extraordinary conditions in California, mixing in the atmosphere. The factors From this it can be seen that EPA's not whether the state needs the specific looked at in the past when considering interpretation in the context of standards under consideration. In 2008, waiver requests for State standards reviewing standards designed to address in contrast, when EPA first considered addressing criteria pollutants-the local or regional air pollution has whether State GHG emission regulations geography and climate of California, and looked at the local causes of the air meet the requirements for a CAA section the large motor vehicle population in pollution problems: Geographic and 209(b) waiver, EPA determined that the California, which were considered the climatic conditions that turn local better reading of CAA section fundamental causes of the air pollution emissions into air pollution problems, 209(b)(1)(B) would be to consider levels found in California-cannot form such as thermal inversions, combined whether California "need[s]" the the basis of a meaningful analysis of the with a large number of motor vehicles particular standards at issue "to meet causal link between California vehicles' in California emitting in the aggregate compelling and extraordinary GHG emissions and climate effects felt large quantities of emissions. Under the conditions," and the agency denied the in California. The concentration of interpretation EPA adopts in this waiver on these grounds. Then, when greenhouse gases in the upper document, it is the particularized nexus EPA reconsidered that denial in 2009, atmosphere may affect California, but between the emissions from California the agency reverted to the interpretation that concentration is not affected in any vehicles, their contribution to local that it had previously applied for particular way by the geography and pollution, and the extraordinary impacts criteria pollutants and granted the climate of California. The long duration that that pollution has on California due waiver. of these gases in the atmosphere means to California's specific characteristics, EPA concludes that the long and they are well-mixed throughout the that set California apart from other areas contentious history of this question, and global atmosphere, such that their when Congress adopted this provision. the recent measures that California has concentrations over California and the EPA's review of this criterion has taken even during the pendency of this U.S. are, for all practical purposes, the usually been cursory and not in dispute, administrative action to amend its State same as the global average. The number as the fundamental factors leading to regulations beyond the form in which of motor vehicles in California, while these traditional criteria air pollution they were granted the waiver in 2013 still a notable percentage of the national problems-geography, local climate and, even more recently, to purport to total and still a notable source of GHG conditions (like thermal inversions), establish "voluntary" programs creating emissions in the State, bears no more significance of the motor vehicle yet a third program distinct both from relation to the levels of greenhouse population-have not changed over that for which CAA preemption was gases in the atmosphere over California time and over different local and waived in 2013 and the Federal than any other comparable source or regional air pollutants. These standards promulgated in 2012 and group of sources of greenhouse gases fundamental factors have applied currently under review by the Federal anywhere in the world. Emissions of similarly for all of California's air government, confirm that extension of greenhouses gases from California cars pollution problems that are local or CAA section 209(b) waivers to State do not generally remain confined within regional in nature. California's GHG and ZEV programs was California's local environment (and, circumstances of geography, climate, inappropriate. Such waivers have led to indeed, were they to do so, rather than and motor vehicle population continue actions by California increasingly at rise to the upper atmosphere to become to show that it has compelling and odds with the clear Congressional well-mixed with other GHG emissions, extraordinary conditions leading to such design and intent that national those locally located emissions would local air pollution problems related to standards would be set by the federal not, by definition, contribute to the traditional pollutants. government with California having an "pollution" that is at issue here). California's motor vehicle program ability to apply for targeted waivers of Instead, those GHG emissions from has historically addressed air pollution preemption to address its own vehicles operating in California become problems that are generally local or particular problems. EPA therefore one part of the global pool of GHG regional in nature. The emission views this interpretation and emissions, with this global pool of standards have been designed to reduce application of CAA section 209(b)(1)(B) emissions leading to a relatively emissions coming from local vehicles, set forth here as, at minimum, a homogenous concentration of in circumstances where these local reasonable one that gives appropriate greenhouse gases over the globe. Thus, emissions lead to air pollution in meaning and effect to this provision and the emissions of motor vehicles in USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 45 of 6151347
California do not affect California's air "the [Clean Air] Act also differentiates California's GHG standards separately pollution problem in any way different between the states, despite our historic from the remainder of the State's motor from emissions from vehicles and other tradition that all the States enjoy equal vehicle emission control program for pollution sources all around the world. sovereignty. Distinctions can be justified purposes of CAA section 209(b)(1)(B). Similarly, the emissions from in some cases. 'The doctrine of the In this context it is appropriate to give California's cars do not just affect the equality of States . . .does not bar... meaning to this criterion by looking at atmosphere in California, but in fact remedies for local evils which have whether the emissions from California become one part of the global pool of subsequently appeared.' But a departure motor vehicles, as well as the local GHG emissions that affect the from the fundamental principle of equal climate and topography in California, atmosphere globally and are distributed sovereignty requires a showing that a are the fundamental causal factors for throughout the world, resulting in statute's disparate geographic coverage the air pollution problem-elevated basically a uniform global atmospheric is sufficiently related to the problem concentrations of greenhouse gases- concentration. that it targets." Nw. Austin Mun. Util. apart from the other parts of California's Given the different, and global, nature Dist. No. One. v. Holder, 557 U.S. 193, motor vehicle program, which are of the pollution at issue, EPA 203 (2009) (some citations and internal intended to remediate different air determines that the conceptual basis quotation marks omitted) (quoting pollution concerns. underlying the practice of considering South Carolinav. Katzenbach, 383 U.S. The appropriate criteria to apply California's motor vehicle program as a 301, 328-29 (1966)) (ellipses and therefore is whether the emissions of whole (in the context of criteria emphasis added by Northwest Austin California motor vehicles, as well as emission regulations) does not Court); see also Katzenbach, 383 U.S. at California's local climate and meaningfully apply with respect to 334 ("exceptional conditions can justify topography, are the fundamental causal elevated atmospheric concentrations of legislative measures not otherwise factors for the air pollution problem of GHGs. Therefore, EPA has considered appropriate") (emphasis added); cf. 42 elevated concentrations of greenhouse whether it is appropriate to apply this U.S.C. 7543(b)(1)(B) ("No such waiver gases. criterion in a different manner for this shall be granted if the Administrator d. Relationship of California Motor kind of air pollution problem; that is, a finds that . . . .such State does not Vehicles, Climate, and Topography to global air pollution problem. need such State standards to meet Elevated Concentrations of Greenhouse As previously explained, the text and compelling and extraordinary Gases in California relevant legislative history of CAA conditions.") (emphasis added). These section 209 also supports EPA's Under CAA section 209(b)(1)(B), EPA principles support our conclusion that proposed to withdraw the waiver of decision to examine the application of Congress did not intend the waiver the second waiver denial criterion (CAA preemption of the ACC program GHG provision in CAA section 209(b) to be and ZEV standards for MY 2021-2025 section 209(b)(1)(B)) with regard to applied to California measures that California's GHG and ZEV standards on two alternative grounds. Specifically, address pollution problems of a national (1) California "does not need" these specifically in the context of global or global nature, as opposed to climate change. It indicates that standards "to meet compelling and conditions that are "extraordinary" with extraordinary conditions;" and (2) even Congress was moved to allow waivers of respect to California in particular-i.e., preemption for California motor vehicle if California does have compelling and those with a particularized nexus to extraordinary conditions in the context standards based on the particular effects emissions in California and to of local conditions in California on the of global climate change, California does topographical or other features peculiar not "need" these standards because they air pollution problems in California. to California." Congress discussed "the unique will not meaningfully address global air problems faced in California as a result c. It Is Appropriate To Apply CAA pollution problems of the sort of its climate and topography." H.R. Section 209(b)(1)(B) Separately to GHG associated with GHG emissions. 83 FR Rep. No. 728, 90th Cong. 1st Sess., at 21 Standards 43248. As previously explained, EPA (1967). See also Statement of Cong. EPA concludes that in the context of proposed to determine that the balance Holifield (CA), 113 Cong. Rec. 30942-43 reviewing California GHG related of textual, contextual, structural, and (1967). Congress also noted the large standards designed to address global legislative history evidence provide effect of local vehicle pollution on such climate change, it is appropriate to reasonable support for the conclusion local problems. See, e.g., Statement of apply the second criterion separately for that the statute is ambiguous in one Rep. Bell (CA), 113 Cong. Rec. 30946. In GHG standards. particular, Congress focused on The intent of Congress, in enacting particular respect: Whether section California's ozone problem, which is CAA section 209(b) and in particular 209(b)(1)(B) refers to an individual especially affected by local conditions Congress's decision to have a separate standard or the California standards as and local pollution. See Statement of CAA section 209(b)(1)(B), was to require a whole when referring to the Rep. Smith (CA), 113 Cong. Rec. 30940- EPA to specifically review whether Administrator's review of state 41 (1967); Statement of Rep. Holifield California continues to have compelling standards submitted for a waiver, to (CA), id. at 30942. See also Motor & and extraordinary conditions and the determine whether the state "needs such State standards to meet compelling Equip. Mfrs. Ass'n, Inc. v. EPA (MEMA), need for State standards to address and extraordinary conditions," and that 627 F. 2d 1095, 1109 (D.C. Cir., 1979) those conditions. Thus, EPA concludes the approach of examining the need for (noting the discussion of California's that it is appropriate to review "peculiar local conditions" in the GHG-related standards separate from the legislative history). Congress clearly did program may not increase significantly based on the other, traditional aspects of California's not have in view pollution problems of addition of new standards, there is still cost in the program is reasonable given, among a more national or global nature in implementation of new standards, particularly in other factors, the unique nature of the 277 terms of changes in design necessitated by the new global pollutant. EPA recognizes that justifying this provision. Moreover, standards. In any case, this issue does not appear to be relevant to the issue of whether California Congress's purpose in establishing the 277 In reference to another argument made in the needs its standards to meet compelling and prohibition in CAA section 209(a) and 1984 waiver, while the administrative costs of a extraordinary conditions. the waiver in CAA section 209(b) was to 51348USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 46 of 61 balance the benefit of allowing pollutants directly affecting California's Many parts of the United States, California significant discretion in environment. They are effective especially western States, may have deciding how to protect the health and mechanisms to reduce the levels of local issues related to drinking water (e.g., welfare of its population with the air pollution in California because local increased salinity) and wildfires, and burden imposed on the manufacturers conditions are the primary cause of that effects on agriculture; these occurrences of being subject to two separate motor kind of air pollution problem. In are by no means limited to California. vehicle programs and the overarching addition, reductions in emissions from These are among the types of climate policy judgment that uniform national motor vehicles that occur elsewhere in change effects that EPA considered in standards are appropriate. S. Rep. No. the United States will not have the same the 2009 CAA section 202(a) 403, 90th Cong. 1st Sess., at 32-33 impact, and often will have no impact, endangerment finding which is the (1967). It is clear that Congress intended on reducing the levels of local air predicate for its authority to issue this balance to be premised on a pollution in California. national motor vehicle GHG standards. situation where California needs the By contrast, GHGs emitted by But EPA's evaluation of whether State standards to meet compelling and California motor vehicles become part of California's standards are "need[ed] to extraordinary conditions. Thus, if EPA the global pool of GHG emissions that meet compelling and extraordinary determines that California does not need affect concentrations of GHGs on a conditions" is not identical to its prior its State GHG standards to meet uniform basis throughout the world. determination, pursuant to CAA section compelling and extraordinary The local climate and topography in 202(a) whether GHG emissions from the conditions, a waiver of preemption for California have no significant impact on national motor vehicle fleet contribute those State standards is not permitted the long-term atmospheric to pollution that may reasonably be under the statute. concentrations of greenhouse gases in anticipated to endanger public health or Commenters supportive of EPA's California. Greenhouse gas emissions welfare. In order for a waiver request to proposal to withdraw the waiver from vehicles or other pollution sources pass muster under CAA section commented that California should not in other parts of the country and the 209(b)(1)(B), as set forth in this continue to enjoy a waiver for separate world will have as much effect on document, a particularized, state- State GHG standards because those State California's environment as emissions specific nexus must exist between standards are not needed to meet from California vehicles. As a result, sources of pollutants, resulting compelling and extraordinary reducing emissions of GHGs from motor pollution, and impacts of that pollution. conditions because there is no link vehicles in California has the same This is analogous to but distinct from between California-based motor vehicle impact or effect on atmospheric the more abstract or general predicate GHG emissions and any alleged concentrations of GHGs as reducing finding for regulation under CAA extraordinary conditions in California. emissions of GHGs from motor vehicles section 202(a); if it were not distinct, These commenters state that while or other sources elsewhere in the U.S., then California would, under CAA California spends a great deal of time or reducing emissions of GHGs from section 209(b)(1)(B), always "need" a discussing the effects of climate change other sources anywhere in the world. waiver for a state-specific program to in California, California does not link its California's motor vehicle standards for "meet" any pollution problem that it GHG standards to those effects. They GHG emissions do not affect only experienced once EPA had found under note that GHGs are not localized California's concentration of GHGs, but CAA section 202(a) that motor vehicle pollutants that can affect California's affect such concentrations globally, in emissions contribute to that pollution local climate, or that are problematic ways unrelated to the particular problem (without particular reference to due to California's specific topography. topography in California. Similarly, that pollution problem's impact on Instead, emissions from vehicles in emissions from other parts of the world California). This would effectively California become mixed with the global affect the global concentrations of nullify the second waiver denial prong, emissions of GHG and affect global GHGs, and therefore concentrations in CAA section 209(b)(1)(B). 2 79 California climate (including California's climate) California, in exactly the same manner in the same way that any GHG from as emissions from California's motor Petrochemical Manufacturers, Docket No. E A-HQ- around the world affect global (and vehicles. OAR-2018-0283-5648 at 34, 36. At least one recent California) climate conditions. They Further, as explained in the SAFE analysis, cited by a number of commenters, has claim that Congress authorized EPA to produced estimates of climate change damage that proposal, California's claims that it is project that with respect to such matters as coastal grant a waiver of preemption only in uniquely susceptible to certain risks damage, agricultural yields, energy expenditures, cases where California standards were because it is a coastal State does not and mortality, California is not worse-positioned in necessary to address peculiar local air differentiate California from other relation to certain other areas of the U.S., and quality problems. They claim that there indeed is estimated to be better-positioned, coastal States such as Massachusetts, particularly as regards the Southeast region of the can be no need for separate California Florida, and Louisiana, much less that country. See S. Hsiang, et a]. "Estimating Economic standards if the standards are not aimed conditions in California are any more Damage from Climate Change in the United States," at, and do not redress, a California- "extraordinary" as compared to any 356 Science 1362 (2017). 279 Cf.Ford, 606 F.2d at 1303 n.68 (affirming specific problem. other coastal States, particularly those In previous waiver decisions, EPA EPA's refusal to allow nationwide sale of cars that coastal States that may possess a greater meet California standards that, due to the waiver was asked to waive preemption of percentage of low-lying territory than predicate that California's standards only need be standards regulating emissions that California. Any effects of global climate as stringent as federal standards in the aggregate, were local or regional in effect. Local air were not certified as meeting national standards change (e.g. water supply issues, with respect to all pollutants) ("[Appellants] pollution problems are affected directly increases in wildfires, effects on by local conditions in California, largely suggest to varying degrees that California is a agriculture) could certainly affect microcosm of the entire nation and, as such, has no the emissions from motor vehicles in California. But those effects would also particularized problems the resolution of which California in the context of the local would require emission control standards affect other parts of the United States.278 climate and topography. As a result, inappropriate to the rest of the country. This may or may not be completely true. The fact remains, State standards regulating such local 278 Some commenters made this same point. See, however, that Congress expected California to be motor vehicle emissions will have a e.g., Fiat Chrysler Automobiles, Docket No. EPA- putting its interests first and there is no guarantee direct effect on the concentration of HQ-OAR-2018-0283-4406 at 89; American Fuel & that those interests are congruent with the interests USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 47 of 6151349 would have it that the 2009 CAA section and extraordinary conditions in bolstered by multiple commenters. 283 202(a) GHG endangerment finding California that were causally related to EPA therefore concludes that necessarily means California "needs" its local or regional air pollution levels in California's GHG and ZEV regulations own GHG program "to meet compelling California. These factors-including do not fulfil the requirement within and extraordinary conditions." That topography and large population of CAA section 209(b)(1)(B) that such does not follow.280 Cf. Utility Air motor vehicles-cause these kinds of regulations are "needed" to "meet" the Regulatory Group v. EPA, 134 S. Ct. local or regional air pollution levels in impacts of global climate change in 2427 (2014) (partially reversing the GHG California and because of this causal California, even assuming arguendo that "Tailoring" Rule on grounds that the link, California's motor vehicle those impacts do constitute "compelling CAA section 202(a) endangerment standards can be effective mechanisms and extraordinary conditions" within finding for GHG emissions from motor to address these local problems. the meaning of that statutory phrase vehicles did not compel regulation of all Reductions outside California would (although, to be clear, EPA is sources of GHG emissions under the lack that causal link to local or regional determining that those impacts do not Prevention of Significant Deterioration air quality conditions inside California. in fact fall within that phrase's and Title V permit programs). 83 FR Congress did not indicate any intent meaning). Given that Congress enacted 43249. to allow California to promulgate local CAA section 209(b) to provide EPA has discussed the reasons for standards to deal with global air California with a unique ability to concluding that it is appropriate to pollution like atmospheric receive a waiver of preemption, which consider California's GHGs standards concentrations of GHGs. In California's provides California with authority that separately in determining whether the comments on the SAFE proposal, it it would not otherwise have under CAA State needs those standards to meet asserted that it has a need for reductions section 209, and given the specific compelling and extraordinary in GHG atmospheric concentrations and language in CAA section 209(b)(2) conditions, as compared to looking at its therefore emissions, but the issue is not pointing out the need for extraordinary need for a motor vehicle program in whether such reductions are needed as and compelling conditions as a general. These reasons also lead to the a matter of general policy, but whether condition for the waiver, EPA conclusion that California does not need Congress intended them to be determines that it is not appropriate to these GHG standards to meet effectuated on a State-specific basis by waive preemption for California's compelling and extraordinary California through EPA granting a standards that regulate GHGs. conditions. The text, structure, and waiver for the GHG aspects of the State's Atmospheric concentrations of legislative history indicates that new motor vehicle program. This type greenhouse gases are an air pollution Congress's intent in the second waiver of pollution seems ill-fitted to problem that is global in nature, and criterion, CAA section 209(b)(1)(B), was Congress's intent to provide California this air pollution problem does not bear to allow California to adopt new motor with a method of handling its local air the same causal link to factors local to vehicle standards because of compelling pollution concentrations and related California as do local or regional air problems with local emission control pollution problems. EPA determines of the nation as a whole."). Here, California offers measures. EPA determines that an inverse reflection of appellants' argument in that globally elevated atmospheric standards regulating emissions of global concentrations of GHGs and their Ford, but it is no more valid: Because it can marshal pollutants like greenhouse gases were a list of climate impacts that it is experiencing, environmental effects are not the kind of California insists it is entitled to a waiver for a state- not part of the compromise envisioned local or regional air pollution problem specific program to address those impacts. All of by Congress in passing CAA section that fall within the scope of the California's problems and corresponding programs, 209(b).281 Moreover, even if California under this logic, are "particularized." If this were "compelling and extraordinary the case, no waiver request could ever be denied does have compelling and extraordinary conditions" encompassed by the terms conditions in the context of global under CAA section 209(b)(1)(B), and Congress of CAA section 209(b)(1)(B). As such, would much more likely have simply afforded climate change, California does not EPA finds that California does not need California a blanket and automatic waiver. Congress "need" these standards under CAA did not do so, its choice not to do so should be its 2021 through 2025 MY GHG-related section 209(b)(1)(B) because they will respected and given meaning, and EPA in this standards to meet compelling and not meaningfully address global air document sets forth an interpretation and extraordinary conditions.284 application of CAA section 209(b)(1)(B) that does so pollution problems of the sort by articulating a required particularized nexus to associated with GHG emissions. As 28 3 State-specific facts which is present in the case of The George Washington University Regulatory California's criteria vehicle emissions programs but noted in the SAFE proposal, the most Studies Center, Docket No. EPA-HQ-OAR-2018- lacking in the case of its GHG and ZEV ones. stringent of the regulatory alternatives 0283-4028; Competitive Enterprise Institute, Docket 280 EPA notes in this regard that, even in the 2009 considered in the 2012 final rule and No. NHTSA-2018-0067-12015. 234EPA disagrees with comments that suggest reversal of the 2008 waiver denial, the Agency was FRIA (under much more optimistic careful to distinguish its consideration of the waiver that California "needs" its GHG and ZEV programs application from "the issues pending before EPA assumptions about technology "to meet compelling and extraordinary conditions" under section 202(a) of the Act," i.e., the then- effectiveness), which would have in the meaning of CAA section 209(b)(1)(B) because pending endangerment finding. 74 FR at 32765. required a seven percent average annual those programs are intended to reduce criteria While EPA maintains the position that the CAA fleetwide increase in fuel economy for pollutants emissions, separate and apart from their section 202(a) "endangerment finding" inquiry and status as programs designed to address climate the CAA section 209(b)(1)(B) inquiry are distinct, MYs 2017-2025 compared to MY 2016 change. To take this position would not be in EPA notes that the 2009 waiver denial reversal (and standards, was forecast to decrease keeping with historical agency practice in the 2008 waiver denial itself) took pains to global temperatures only by 0.02 'C in reviewing California's waiver requests. Specifically, EPA practice is not to scrutinize California's criteria distinguish the two primarily because the Agency 2100.282 This conclusion was further was at that time still considering whether to issue pollutant emissions reductions projections or air the endangerment finding. As EPA explains in this emissions benefits. Rather, EPA's view has been document, the two provisions are distinct, but the 281 Moreover, EPA is mindful that principles of that these are matters left for California's judgments, CAA section 202(a) predicate criteria for federal equal sovereignty between the states ordinarily especially given that Title I of the Clean Air Act regulation do support the Agency's position that the require "'exceptional conditions' prevailing in imposes the obligation of NAAQS attainment CAA section 209(b)(1)(B) waiver prong is best certain parts of the country [to] justiffy] planning on states. See, e.g., 36 FR 17458; 78 FR interpreted as calling for a consideration whether extraordinary legislation otherwise unfamiliar to 2134; 79 FR 46256, 46261 (Aug. 7, 2014). EPA's the pollution problem at issue has a State-specific, our federal system." Northwest Austin, 557 U.S. at withdrawal action is premised on CARB's 2012 particularized nexus between emissions, pollution, 211. ACC program waiver request, which, as previously and impacts. 282 83 FR 42986, 43216-43217. Continued 51350USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 48 of 61 e. No Findings Under CAA Section promulgate State standards for sulfur dioxide, lead, and particulate 209(b)(1)(C) Are Finalized at This Time emissions from new motor vehicles matter. As also explained at proposal, In the SAFE proposal, EPA proposed designed to address global climate areas are only designated nonattainment to determine, as an additional basis for change problems. with respect to criteria pollutants for the waiver withdrawal, that California's EPA's 2013 waiver for CARB's which EPA has issued a NAAQS, and ZEV and GHG standards for new MY Advanced Clean Car Program (as it nonattainment State Implementation 2021 through 2025 are not consistent pertains to its 2021 through 2025 MY Plan (SIPs) are intended to assure that with section 202(a) of the Clean Air Act. relating to greenhouse gas emissions those areas attain the NAAQS. That proposed determination was and the ZEV mandate) is withdrawn. Congress added CAA section 177 in intertwined with the SAFE proposal's This is separate and apart from EPA's the 1977 Clean Air Act amendments assessment with regard to the determination that it cannot and did not cognizant that states might need to technological feasibility of the Federal validly grant a waiver with respect to address air pollution within their GHG standards for MY 2021 through those California State measures which boundaries similar to California but 2025 and the proposed revisions are preempted under NHTSA's were otherwise preempted under CAA thereto. Because EPA and NHTSA are determination in this document that section 209(a) from setting new motor not at this time finalizing that EPCA preempts State GHG and ZEV vehicle and engine standards. See, e.g., assessment or taking final action on the programs, which, as explained above, is H.R. Rep. No. 294, 95th Cong., 1st Sess. proposal to revise the Federal standards, effective on the effective date of this 309 (1977), 1977 U.S.C.C.A.N. 1077, and because the finalized joint action. 1388 (explaining that the Committee "was concerned that this preemption determinations under CAA section F. States Cannot Adopt California's (section 209(a) of the Act) now 209(b)(1)(B) and the discussion of the GHG Standards Under CAA Section 177 implications of EPCA preemption with interferes with legitimate police powers At proposal, EPA explained that CAA of States"); Motor Vehicle Mfrs. Ass'n of regard to the waiver previously granted section 177 provides that other States, with respect to those standards set forth U.S., Inc. v. New York State Dep't of under certain circumstances and with Envtl. Conservation, 17 F.3d 521, 527 above are each independent and certain conditions, may "adopt and adequate grounds for the waiver (2d Cir. 1994) ("It was in an effort to enforce" standards that are "identical to assist those states struggling to meet withdrawal, EPA at this time is not the California standards for which a finalizing any determination with federal pollution standards that waiver has been granted for [a given] Congress, . . . directed in 1977 that respect to CAA section 209(b)(1)(C). model year." 42 U.S.C. 7507. As a EPA may do so in connection with other states could promulgate result, EPA proposed to determine that regulations requiring vehicles sold in potential future final action with regard this section does not apply to CARB's to the Federal standards. their state to be in compliance with GHG standards given that they are California's emission standards or to E. Withdrawal of Waiver intended to address global air pollution. 'piggyback' onto California's preemption In this final action, EPA determines We also noted that the section is titled exemption."), citing H.R. Rep. No. 294, that the California Air Resources "New motor vehicle emission standards 95th Cong., 1st Sess. 309-10 (1977); id. Board's (CARB's) regulations pertaining in nonattainment areas' and that its at 531 (("[Section] 177 was inserted into to greenhouse gases-related (GHG) application is limited to "any State the Act in 1977 so that states attempting emission standards for 2021 through which has [state implementation] plan to combat their own pollution problems 2025 model year (MY) passenger cars, provisions approved under this part"- could adopt California's more stringent light-duty trucks, and medium-duty i.e., under CAA title I part D, which emission controls."). Relevant vehicles are not needed to meet governs "Plan requirements for legislative history further identifies compelling and extraordinary nonattainment areas." CAA section 177 as a means of conditions. EPA concludes that CAA We received comments in support of addressing the NAAQS attainment section 209(b) was intended to allow and against our proposal. Commenters planning requirements of CAA section opposing our interpretation argued that 172, including the specific SIPs content California to promulgate State standards 286 applicable to emissions from new motor CAA section 177 does not contain any and approvals criteria for EPA. H.R. text that could be read as limiting its vehicles to address pollution problems 286 that are local or regional, and that have applicability to certain pollutants only. The version of CAA section 172 adopted in a particular nexus to emissions from They also argued that EPA has 1977 set forth the general requirements for state 5 inappropriately relied on the heading plans for nonattainment areas and CAA section vehicles in California.28 EPA does not 172(b) set forth the "requisite provisions" of those believe CAA section 209(b)(1)(B) was for CAA section 177 to construe a plans. In drafting the provisions that would become intended to allow California to statutory provision as well as arrogated CAA section 172(b), Congress explained that they authority to implement an otherwise required the Administrator, after notice and self-implementing provision. We opportunity for a public hearing, to approve "a discussed, only discussed the potential GHG State plan which meets the following criteria: It benefits or attributes of CARB's GHG and ZEV disagree with these commenters, must identify all nonattainment areas for each standards program (78 FR 2114, 2130-2131). If EPA conclude that the text (including both pollutant. Next it must assure attainment of the does not even scrutinize a California program's the title and main text), structural national ambient air quality standard in those areas criteria pollutant emission and benefits projections location, and purpose of the provision as expeditiously as practicable, but not later than when California applies for a waiver for that December 31, 1982, for all pollutants other than program presenting it as a criteria program, then a confirm that it does not apply to GHG photochemical oxidants. In respect to fortioricommenters' retrospective attempt to claim standards, and are finalizing this photochemical oxidants, the standard must be met criteria benefits to maintain a waiver for programs determination as proposed. as expeditiously as practicable, but not later than that were originally presented to EPA in a waiver Under the Clean Air Act, EPA December 31, 1987. The plan must include a request that disclaimed any such benefits is not comprehensive, accurate, up-to-date inventory of appropriate. establishes national ambient air quality actual emissions from all sources of pollutants in 285 As noted in the SAFE proposal, "Attempting standards (NAAQS) to protect public the area. This inventory must be revised and to solve climate change, even in part, through the health and welfare and has established resubmitted every 2 years to substantiate that Section 209 waiver provision is fundamentally reasonable further progress has been achieved as a different from that section's original purpose of such ambient standards for the condition for permitting additional sources of addressing smog-related air quality problems." 83 following criteria pollutants: ozone, pollution. Finally, the plan must identify and FR 42999. carbon monoxide, nitrogen dioxide, quantify the actual emissions which must be taken USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 49 of 6151351
Rep. No. 294, 95th Cong., 1st Sess. 213 relating to global air pollution like nationwide scope or effect. As also (1977), 1977 U.S.C.C.A.N 1077, 1292 GHGs. explained at proposal, CAA Section ("Still another element of flexibility for 307(b)(1) of the CAA provides in which G. Severability and JudicialReview States that is afforded in this section is Federal courts of appeal petitions of the authority for States with EPA intends that its withdrawal of the review of final actions by EPA must be nonattainment areas for automotive January 2013 waiver for California's filed. This section provides, in part, that pollutants (other than California) to GHG and ZEV programs on the basis of petitions for review must be filed in the adopt and enforce California new-car EPCA preemption, to take effect upon Court of Appeals for the District of emission standards if adequate notice is the effective date of this joint action, as Columbia Circuit if: (i) The Agency given."). set forth in subsection III.C, on the one action consists of "nationally applicable hand, is separate and severable from its Contrary to commenters' assertions, regulations promulgated, or final action withdrawal of the January 2013 waiver taken, by the Administrator," or (ii) therefore, the text, placement in Title I, for those programs on the basis of an and relevant legislative history are all such action is locally or regionally interpretation and application of CAA applicable, but "such action is based on indicative that CAA section 177 is in section 209(b)(1)(B), beginning in model a determination of nationwide scope or fact intended for NAAQS attainment year 2021, as set forth in subsection planning and not to address global air effect and if in taking such action the III.D, on the other. EPA further intends Administrator finds and publishes that pollution. As further explained in that its withdrawal of the waiver with such action is based on such a section D.2, GHG is a globally regard to California's GHG program is determination." Additionally, we distributed pollutant with severable from its withdrawal of the proposed to find that any final action environmental effects that are different waiver with regard to California's ZEV resulting from the August 2018 SAFE enough from emissions of criteria program. The basis for this distinction proposal is based on a determination of pollutants. For example, GHG emissions (i.e., that EPA intends that its "nationwide scope or effect" within the from fleet in California bear no more withdrawal of the waiver for California's meaning of CAA section 307(b)(1). We relation to GHG emissions in California GHG program and for its ZEV program explained that the withdrawal, when than fleet in other parts of the country. should be severable from one another) finalized, would affect persons in Where states are now adopting is, as follows, twofold: (1) While EPA California and those manufacturers and/ standards for intents and purposes far concludes for the reasons set forth in or owners/operators of new motor removed from NAAQS attainment subsection IhI.D above that the ZEV vehicles nationwide who must comply planning or more specifically directed at program, as subjected to the January with California's new motor vehicle global air pollution, EPA as the agency 2013 waiver and as presented to EPA by requirements. For instance, California's charged with implementing the Clean CARB in CARB's waiver application and program provides that manufacturers Air Act is acting well within that role supporting documents, is a GHG- may generate credits in CAA section 177 in setting out an interpretation that targeting program and as such is States as a means to satisfy those aligns with Congressional intent. See susceptible to the interpretation and manufacturers' obligations to comply Chevron U.S.A. v. NRDC, 467 U.S. 837, application of CAA 209(b)(1)(B) set forth with the mandate that a certain 843 (1984) ("The power of an above, EPA acknowledges that there are percentage of their vehicles sold in administrative agency to administer a aspects to the analysis as it affects the California be ZEV (or be credited as congressionally created . . . program state's ZEV program that are not such from sales in CAA section 177 necessarily requires the formulation of applicable with respect to the state's States). In addition, other States have policy and the making of rules to fill GHG program; (2) in this final action, adopted aspects of California's ACC any gap left, implicitly or explicitly, by NHTSA expresses in section II above its program; this decision would also affect Congress."). This construct also intent that its determination that a State those States and those persons in such comports with our reading of CAA or local law or regulation of tailpipe States, which are in multiple EPA section 209(b)(1)(B) as limiting greenhouse gas emissions from regions and federal circuits. applicability of CAA section 209(b) automobiles is related to fuel economy waiver authority to state programs that standards is severable from its This final action is distinguishable address pollutants that affect local or determination that State or local ZEV from the situation faced by the D.C. regional air quality and not those mandates are related to fuel economy Circuit in Dalton Trucking Inc., v. EPA, standards. EPA further intends that its 808 F.3d 875 (D.C. Cir. 2015), where the into account by the State for purposes of deciding determination with regard to the scope Court held that EPA's action on how to achieve reasonable further progress and of CAA section 177 as set forth in California's waiver request with respect assure timely attainment. Thus, the plan must subsection III.F above be severable from to its nonroad engine program was not consider the following factors among others: The all other aspects of this joint action. nationally applicable, and that EPA had actual emissions increases which will be allowed to result from the construction and operation of major Pursuant to CAA section 307(b)(1), not properly made and published a new or modified stationary sources in the area; the judicial review of this final action may finding that its action was based on a actual emissions of such pollutant from unregulated be sought only in the United States determination of nationwide scope and sources, fugitive emissions and other uncontrolled Court of Appeals for the District of effect. First, Dalton Trucking noted that sources; actual emissions of the pollutant from modified and existing indirect sources; actual Columbia Circuit. For the reasons no other State had ever adopted emissions resulting from extension or elimination explained in this section, this final California's nonroad program, id. at 880; of transportation control measures; actual emissions waiver withdrawal action is nationally that is not the case here. Second, Dalton of such pollutant resulting from in-use motor applicable for purposes of CAA section Trucking noted that the nonroad waiver vehicles and emissions of such pollutant resulting from stationary sources to which delayed 307(b)(1). To the extent a court finds final action was facially limited to fleets compliance orders or enforcement orders (pursuant this action to be locally or regionally operating in California, id. at 881; the to sec. 121 (pursuant to sec. 121 or sec 113(b)) and applicable, for the reasons explained in nature of the California program at issue compliance date extension (pursuant to sec. 119) this section, EPA determines and finds here, with its complex credit system have been issued; and actual transported emissions." H.R. Rep. No. 294, 95th Cong., 1st Sess. for purposes of CAA section 307(b)(1) connected with sales in other States, is 212 (1977), 1977 U.S.C.C.A.N. 1077, 1291, 1977 WL that this final waiver withdrawal action quite different. Third, Dalton Trucking 16034 (emphasis added). is based on a determination of noted that EPA in the nonroad waiver 51352USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 50 of 61 final action did not actually make and working together with NHTSA to dealt with the issue of the economic publish a finding that that final action establish a consistent Federal program impact of the regulatory text concerning was based on a determination of for fuel economy and GHG emissions, EPCA preemption. These comments, nationwide scope and effect, id. Dalton EPA has submitted this action to the similar to how the agency addressed the Trucking expressly did not hold, and OMB for review and any changes made issue in the NPRM, generally made indeed expressly disclaimed any intent in response to OMB recommendations qualitative and general points about the to even suggest, that EPA could not have have been documented in the docket for economic impact. made and published such a finding in this action. EPA's action here, however, Many of the comments that addressed that action. Id. at 882. EPA in this is not a rule as defined by Executive the economic impacts of preemption did document does so with regard to this Order 12866, consistent with its so by stating that one important aspect final action, for the reasons stated previous actions on waiver requests, of the "One National Program" above. For these reasons, this final and is therefore exempt from review by established beginning in 2009 was that waiver withdrawal action is nationally the Office of Management and Budget as it would reduce regulatory cost by not applicable for purposes of CAA section required for rules and regulations by allowing for the creation of different 307(b)(1), or, in the alternative, EPA Executive Order 12866. See, e.g., 78 FR Federal and California programs, with determines and finds for purposes of at 2145 (Jan. 9, 2013); 74 FR at 32784 different levels of stringency and CAA section 307(b)(1) that this final (July 8, 2009); 73 FR at 12169 (Mar. 6, different compliance regimes. NHTSA waiver withdrawal action is based on a 2008). agrees with this concern, but this is determination of nationwide scope or In determining the economic impact exactly why Congress provided that any effect. Thus, pursuant to CAA section of this action, it is important to be clear State or local law "related to" fuel 307(b), any petitions for review of this that the rule establishing new standards economy is preempted. This final rule final action must be filed in the Court for the Model Years within scope of the will provide more certainty on this issue of Appeals for the District of Columbia NPRM is expected to continue to be than the prior approach, which would Circuit within 60 days from the date economically significant and is, thus, always be subject to California removing such final action is published in the anticipated, to include a full FRIA. itself from the program. This is exactly Federal Register. Moreover, as EPA's action is not a rule what has occurred in recent months, as and not subject to E.O. 12866, its the State has taken action to amend the IV. Regulatory Notices and Analyses consideration of costs has been limited "deemed to comply" provision and then As it is relevant to many of the to the role costs play under section 209. announced that it entered into an following discussions, it is important to Accordingly, the following discussion agreement with several automakers to clarify at the outset that this action does only concerns the economic impact apply a different set of standards on a not finalize or otherwise affect either associated with NHTSA's final national basis. EPA's GHG standards or NHTSA's regulatory text clarifying its views on Various other commenters noted that CAFE standards and, thus, the various EPCA preemption. the GHG program and ZEV mandate impacts associated with those standards As a general matter, NHTSA has would increase compliance costs. Most have not been considered below. determined that there may be some of these comments only made general Further, consistent with its past nonsignificant economic impact arising statements to this effect and did not practice, EPA's withdrawal of the out of its clarification, particularly some provide specific or detailed information waiver does not add or amend reduction in costs, to this final rule, but about potential costs. One commenter regulatory text and is, therefore, subject the agency has not quantified any such approvingly noted NHTSA's citation of to considerably fewer of the below impact in this rulemaking, which has a study that found that the ZEV mandate discussions than NHTSA's final rule been determined to be "significant" but could potentially lead to increased establishing regulatory text on not "economically significant" under costs, though the author of the cited preemption. Executive Order 12866. This rulemaking study also commented that the cited merely clarifies the existing statutory value did not provide a complete A. Executive Order 12866, Executive provisions relating to preemption that picture of the economic effect. The Order 13563 have been in effect since EPCA was agency agrees that programs such as Executive Order 12866, "Regulatory enacted and does not modify any these are likely to introduce additional Planning and Review" (58 FR 51735, Federal requirement. As such, as in the costs, which, of course, was a significant Oct. 4, 1993), as amended by Executive NPRM, the agency has provided a part of Congress's motivation in Order 13563, "Improving Regulation qualitative discussion of the impacts in providing NHTSA with its broad and Regulatory Review" (76 FR 3821, response to the comments, which preemptive authority over fuel Jan. 21, 2011), provides for making themselves raised qualitative issues. economy. The agency, though, like determinations whether a regulatory In the NPRM, NHTSA mentioned at a commenters, has found calculation of action is "significant" and therefore general, qualitative, level that these costs to be challenging, as they subject to the Office of Management and California's currently existing GHG constrain the avenues of compliance Budget (OMB) review and to the program and ZEV mandate lead to with the Federal standards without requirements of the Executive Order. increased compliance costs, with some actually altering what must be, Under section 3(f) of Executive Order greater discussion of potential increases ultimately, achieved. 12866, NHTSA's final rule has been in costs due specifically to the ZEV With regard to benefits, some determined to be a "significant mandate, which constrains an OEMs commenters believed that California's regulatory action," but not an ability to meet their CAFE and GHG GHG program and ZEV mandate could economically significant action. EPA's requirements in the most cost-effective provide additional benefits, but, as with withdrawal on the waiver, however, is way. costs, these commenters did not provide not a rule under E.O. 12866, as The agencies received many detailed information about the benefits consistent with the agency's historical comments on the economic analysis as of these programs independent of the classification of its notices and it relates to the CAFE and GHG Federal standards. One commenter decisions related to the waiver. standards, but only received a small argued that a separate State GHG However, as part of its commitment to number of comments that specifically program is unlikely to have any USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 51 of 6151353 meaningful benefits, because of uncertain, if any, benefits because they does not in any way change the existing "leakage" from vehicles in States that constrain the ability of OEMs to meet fuel economy standards. As EPA's adopt the California standards to the Federal standard without in anyway withdrawal is not within the scope of vehicles in States that do not adopt this altering their obligations under that E.O. 12866, it is also not within scope standard. Although the comment was in standard. Further, the agency's decision of E.O. 13211. context of supporting the "One National that State or local laws such as the GHG F. Environmental Considerations Program," NHTSA believes that the program and ZEV mandate should be argument that separate State standards preempted is not based on any 1. National Environmental Policy Act will have little benefit has merit. The evaluation of the policy or other merits The National Environmental Policy existence of State or local laws does not of either program, but simply the fact Act (NEPA) 288 directs that Federal in any way alter an OEM's obligation that these programs are clearly related to agencies proposing "major Federal under Federal law. For instance, OEMs fuel economy. actions significantly affecting the would likely produce more efficient quality of the human environment" vehicles for sale in California and the B. DOT Regulatory Policies and Procedures must, "to the fullest extent possible," States that have adopted California's prepare "a detailed statement" on the standards, but the increased fuel The final rule is also significant environmental impacts of the proposed economy of these vehicles would likely within the meaning of the Department action (including alternatives to the be offset by less efficient vehicles of Transportation's Order 2100.6, proposed action).289 Concurrently with produced for sale in the rest of the U.S., "Policies and Procedures for the NPRM, NHTSA released a Draft leading to little to no change in either Rulemakings." Regulatory Policies and Environmental Impact Statement (Draft fuel use or GHG emissions at a national Procedures. EIS) pursuant to NEPA and level. Some commenters stated that the C. Executive Order 13771 (Reducing implementing regulations issued by the decision to preempt programs including Regulation and Controlling Regulatory Council on Environmental Quality and similar to the ZEV mandate, to the Costs) (CEQ), 40 CFR part 1500, and NHTSA, extent that those programs are related to 49 CFR part 520. NHTSA prepared the NHTSA's final rule is expected to be fuel economy, would have negative Draft EIS to analyze and disclose the benefits related to ozone-forming an E.O. 13771 deregulatory action, but potential environmental impacts of the NHTSA has not estimated any pollutants, though these commenters proposed CAFE standards and a range of did not quantify these concerns. NHTSA quantifiable cost savings. EPA's alternatives (largely varying in terms of notes that, as was discussed in the withdrawal is not a regulatory action stringency). NHTSA considered the and thus outside the scope of E.O. NPRM, California, in its 2013 waiver information contained in the Draft EIS request, noted that the ZEV program did 13771. as part of developing its proposal and not provide for ozone-forming D. CongressionalReview Act made the Draft EIS available for public pollutants, acknowledging, "[t]here is Pursuant to the Congressional Review comment. For the final rule on the no criteria emissions benefit from standards for model year 2021 through including the ZEV proposal in terms of Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs 2026 automobiles proposed in the vehicle (tank-to-wheel or TTW) NPRM, NHTSA will simultaneously emissions. The LEV III criteria pollutant designated this action as not a "major rule", as defined by 5 U.S.C. 804(2). The issue a Final EIS and Record of fleet standard is responsible for those Decision, EPA and NHTSA will submit a rule pursuant to 49 U.S.C. 304a(b) emission reductions in the fleet; the and U.S. Department of Transportation report to each House of the Congress fleet would become cleaner regardless of Guidance on the Use of Combined Final the ZEV regulation because and to the Comptroller General of the United States. Environmental Impact Statements! manufacturers would adjust their Records of Decision and ErrataSheets compliance response to the standard by E. Executive Order 13211 (Energy in NationalEnvironmental Policy Act making less polluting conventional Effects) Reviews (April 25, 2019),290 unless it is vehicles." 287 NHTSA continues to Executive Order 13211 applies to any determined that statutory criteria or believe that preemption of the programs practicability considerations preclude such as the ZEV mandate will not have rule that: (1) Is determined to be economically significant as defined simultaneous issuance. a significant effect, as California remains NHTSA has not prepared a separate free to revise its LEV program to reduce under E.O. 12866, and is likely to have a significant adverse effect on the environmental analysis pursuant to ozone-forming emissions and seek a NEPA for this final action on waiver of Clean Air Act preemption supply, distribution, or use of energy; or (2) that is designated by the preemption. This final rule provides from EPA, as described above, while not clarity on the scope of EPCA's violating NHTSA's preemption Administrator of the Office of Information and Regulatory Affairs as a preemption provision. Ultimately, the authority, and other States and local determination of whether a particular significant energy action. If the governments would continue to be State or local law is preempted under regulatory action meets either criterion, allowed to take other actions so long as EPCA is not determined based upon its the agencies must evaluate the adverse those are not related to fuel economy environmental impact but solely energy effects of the proposed rule and and are consistent with any other whether it is "related to fuel economy explain why the proposed regulation is relevant Federal law. standards or average fuel economy preferable to other potentially effective The comments, therefore, reaffirm standards." Any preemptive effect NHTSA's preliminary determination and reasonably feasible alternatives that State and Local programs including, considered. NHTSA's final rule is not 28842 U.S.C. 4321-4347. and similar to, California's GHG and subject to E.O. 13211 because it is not 28942 U.S.C. 4332. EPA is expressly exempted ZEV programs are likely to lead to economically significant and is not a from the requirements of NEPA for actions under significant energy action. As discussed the Clean Air Act. 15 U.S.C. 793(c)(1). increased compliance costs and highly 290 https://www.transportation.govlsitesldot.govl in the E.O. 12866 section, NHTSA's files/docs/mission/transportation-policy/ 287 Docket No. EPA-HQ-OAR-2012-0562, PP. final rule merely clarifies the contours permittingcenter/337371 feis-rod-guidance-final- 15-16. of its existing preemption authority and 04302019.pdf. 51354USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 52 of 61 resulting from this final action is not the emissions. The LEV III criteria pollutant void ab initio under the preemptive result of the exercise of Agency fleet standard is responsible for those force of EPCA. discretion, but rather reflects the emission reductions in the fleet; the One commenter criticized NHTSA for operation and application of the Federal fleet would become cleaner regardless of failing to consider the criteria pollutant statute. NHTSA does not have authority the ZEV regulation because impacts of alternatives that keep the waiver in place and that account for to waive any aspect of EPCA manufacturers would adjust their 2 9 5 preemption no matter the potential compliance response to the standard by California's specific electricity grid. environmental impacts; rather, making less polluting conventional That commenter also criticized NHTSA preempted standards are void ab initio. vehicles." 292 Ultimately NHTSA will for not fully accounting for the impacts Courts have long held that NEPA does address potential environmental to NON emissions in the South Coast Air not apply to nondiscretionary actions by impacts of fuel economy standards in its Basin as a result of revoking the Federal agencies. 29 1 As NHTSA lacks forthcoming Final EIS that will waiver. 296 Another commenter noted discretion over EPCA's preemptive accompany the final rule on the that the nine areas NHTSA identified as effect, the Agency concludes that NEPA standards for model year 2021 through suffering from "serious" or "extreme" does not apply to this action. 2026 automobiles proposed in the nonattainment conditions for ozone and It bears noting that this action only NPRM. This action, however, does not PM2 . 5 are located in California, even concerns the question of preemption; it result in significant environmental though the agencies proposed to revoke does not set CAFE standards. impacts to the quality of the human or declare preempted the State's Clean Fundamentally, this action is about environment. Air Act waiver for GHG emissions and which sovereign entity (i.e., the Federal NHTSA intends to fully respond to all the State's ZEV mandate.297 One government or State governments) can substantive comments received on the commenter wrote that NHTSA should issue standards that relate to fuel Draft EIS in the forthcoming Final EIS, consider and discuss the local impacts economy. EPCA is clear that this consistent with CEQ regulations. that preempting the ZEV mandate authority is restricted to the Federal NHTSA received numerous public would have on localities where ZEV government. This action provides comments on the Draft EIS that related sales are currently concentrated and guidance on the boundary set by to the revocation of California's waiver where they will likely concentrate in the Congress, as well as under principles of and EPCA preemption. The following future, and particularly in California implied preemption. NHTSA's summarizes and briefly addresses those and the other States that have adopted regulation concerning EPCA preemption comments. the ZEV mandate pursuant to section is independent and severable from any Multiple commenters called NHTSA's 177 of the CAA.298 While these particular CAFE standards adopted by DEIS inadequate because it did not comments are more specific about NHTSA, and this action, in and of itself, analyze an alternative that would keep identifying potential environmental is not expected to have significant the California waiver and regulations (as impacts, these impacts simply do not environmental impacts on a national well as similar regulations adopted in bear on the question of whether or how scale. As described above, OEMs would the District of Columbia and other States preemption applies. Preemption relies likely produce more efficient vehicles pursuant to section 177 of the CAA) in solely on whether the State or local law for sale in California and the States that place.293 On the other hand, one or regulation is "related to fuel economy have adopted California's standards, but commenter noted its support for the standards or average fuel economy the increased fuel economy of these proposition that NHTSA is not obligated standards." Therefore, NHTSA is not vehicles would likely be offset by less under NEPA to consider a scenario that obligated to analyze or consider these efficient vehicles produced for sale in it believes Federal law does not environmental impacts as part of this the rest of the U.S., leading to little to permit.294 As described above, NHTSA final rule. no change in either fuel use or GHG concludes that NEPA does not apply to One commenter noted that if emissions at a national level. In fact, as this final rule regarding preemption. California's waiver is revoked, the State NHTSA has not finalized any action to Based on this conclusion, it is would be unable to address pollution amend the fuel economy standards that immaterial whether NHTSA analyzed issues through adoption of California's were promulgated in 2012, California's an alternative that would keep the or its own standards, making it difficult "deemed to comply" provision remains California waiver and regulations in to attain or maintain compliance with operative. As OEMs are anticipated to place. NHTSA lacks the discretion and the Clean Air Act. 299 Another State make use of this compliance authority to select such an alternative as alleged that it depends on the criteria mechanism, CARB's GHG standards are a State or local law or regulation related pollutant and air toxic emission functionally identical to Federal to automobile fuel economy standards is reduction co-benefits of the State's use standards, and their preemption would of section 177 motor vehicle emissions not result in additional environmental 292Docket No. EPA-HQ-OAR-2012-0562, Pp. standards as a control strategy in its impacts. Furthermore, as was discussed 15-16. California's LEV ILLcriteria pollution State Implementation Plan to meet its in the NPRM, California, in its 2013 standard would not be preempted under this action. 293Center for Biological Diversity, Earthjustice, waiver request, noted that the ZEV 295 South Coast Air Quality Management District, Environmental Law and Policy Center, Natural program did not provide for ozone- Resources Defense Council, Public Citizen, Inc., Docket No. NHTSA-2017-0069-0497. 296 South Coast Air Quality Management District, forming pollutants, acknowledging, Safe Climate Campaign, Sierra Club, Southern "[t]here is no criteria emissions benefit Environmental Law Center, and Union of Docket No. NHTSA-2017-0069-0497. 297 Center for Biological Diversity, Earthjustice, from including the ZEV proposal in Concerned Scientists, Docket No. NHTSA-2017- 0069-0550; South Coast Air Quality Management Environmental Law and Policy Center, Natural terms of vehicle (tank-to-wheel or TTW) District, Docket Nos. NHTSA-2017-0069-0532 and Resources Defense Council, Public Citizen, Inc., NHTSA-2017-0069-0497; Blanca Luevanos, Docket Safe Climate Campaign, Sierra Club, Southern 29 1 See, e.g., Department of Transp. v. Public No. NHTSA-2017-0069-0508; National Coalition Environmental Law Center, and Union of Citizen, 541 U.S. 752 (2004); Milo Cmty. Hosp. v. for Advanced Transportation, Docket No. NHTSA- Concerned Scientists, Docket No. NHTSA-2017- Weinberger, 525 F.2d 144 (1st Cir. 1975); State of 2017-0069-0597; California Office of the Attorney 0069-0550. South Dakota v. Andrus, 614 F.2d 1190 (8th Cir. General et al., Docket No. NHTSA-2017-0069- 298 New York State Department of Environmental 1980); Citizens Against Rails-to-Trails v. Surface 0625. Conservation, NHTSA-2017-0069-0608. Transp. Bd., 267 F.3d 1144 (D.C. Ch. 2001); Sierra 294Alliance of Automobile Manufacturers, Docket 299 Boulder County Public Health, Docket No. Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995). No. NHTSA-2017-0069-0588. NHTSA-2017-0069-0499. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 53 of 6151355
SIP.300 NHTSA disagrees with the designated as nonattainment areas. than these thresholds, then the project underlying premise of the comments. Former nonattainment areas that come is presumed to conform and no further States and local governments are able to into compliance with the NAAQS and conformity evaluation is required. If the continue to encourage ZEVs in many are redesignated as attainment are net increases of direct and indirect different ways, such as through known as maintenance areas. When emissions exceed any of these investments in infrastructure and EPA revises a NAAQS, each State is thresholds, and the action is not appropriately tailored incentives. States required to develop and implement a otherwise exempt, 30 6 then a conformity and local governments cannot adopt or State Implementation Plan (SIP) to determination is required. The enforce regulations related to fuel address how it plans to attain and conformity determination can entail air economy standards, which include ZEV maintain the new standard. Each State quality modeling studies, consultation mandates, but they are able to address with a nonattainment area is also with EPA and state air quality agencies, pollutants regulated by the Clean Air required to submit a SIP documenting and commitments to revise the SIP or to Act in numerous ways that are not how the region will reach attainment implement measures to mitigate air preempted by Federal law. Moreover, as levels within time periods specified in quality impacts. noted above, this action does not impact the Clean Air Act. For maintenance This action is not developed, funded, in any way the Federal standards in areas, the SIP must document how the or approved under title 23 or chapter 53 place for greenhouse gas emissions from State intends to maintain compliance of title 49, U.S.C. Accordingly, this automobiles and fuel economy with the NAAQS. action is not subject to transportation standards. Since California and other No Federal agency may "engage in, conformity. Under the General section 177 States have "deemed" support in any way or provide financial Conformity Rule, a conformity compliance with the Federal standards assistance for, license or permit, or determination is required when a to be compliance with the State approve" any activity in a Federal action would result in total standards, this action does not have nonattainment or maintenance area that direct and indirect emissions of a significant environmental impacts to the does not "conform" to a SIP or Federal criteria pollutant or precursor quality of the human environment. Any Implementation Plan after EPA has originating in nonattainment or impacts associated with potential approved or promulgated it.301 Further, maintenance areas equaling or changes to Federal standards are not a no Federal agency may "approve, accept exceeding the rates specified in 40 CFR result of this action and are purely or fund" any transportation plan, 93.153(b)(1) and (2), and the action is speculative until the agencies finalize a program, or project developed pursuant not otherwise exempt. As explained change. to title 23 or chapter 53 of title 49, below, NHTSA's action results in neither direct nor indirect emissions as 2. Clean Air Act Conformity U.S.C., in a nonattainment or maintenance area unless the plan, defined in 40 CFR 93.152. Requirements as Applied to NHTSA's The General Conformity Rule defines Action program, or project has been found to "conform" to any applicable direct emissions as "those emissions of The Clean Air Act (42 U.S.C. 7401 et implementation plan in effect. 30 2 The a criteria pollutant or its precursors that seq.) is the primary Federal legislation purpose of these conformity are caused or initiated by the Federal that addresses air quality. Under the requirements is to ensure that Federally action and originate in a nonattainment authority of the Clean Air Act and sponsored or conducted activities do or maintenance area and occur at the subsequent amendments, EPA has not interfere with meeting the emissions same time and place as the action and established NAAQS for six criteria are reasonably foreseeable." 307 targets in SIPs, do not cause or pollutants, which are relatively NHTSA's action is to promulgate contribute to new violations of the commonplace pollutants that can regulatory text and a detailed appendix, NAAQS, and do not impede the ability accumulate in the atmosphere as a in addition to discussing the issue in of a State to attain or maintain the result of human activity. The air quality this preamble to the rule, specifically to NAAQS or delay any interim of a geographic region is usually provide clarity on EPCA's preemption milestones. EPA has issued two sets of assessed by comparing the levels of provision in order to give already regulations to implement the conformity criteria air pollutants found in the established standards meaning, and thus requirements: is specifically exempt from general ambient air to the levels established by (1) The Transportation Conformity the NAAQS (taking into account, as conformity requirements.308 Moreover, Rule 303 applies to transportation plans, well, the other elements of a NAAQS: this action would cause no direct programs, and projects that are Averaging time, form, and indicator). emissions consistent with the meaning developed, funded, or approved under These ambient concentrations of each of the General Conformity Rule.309 Any title 23 or chapter 53 of title 49, U.S.C. changes in emissions that could occur criteria pollutant are compared to the (2) The General Conformity as a result of preemption would happen levels, averaging time, and form Rule 304 applies to all other federal well after and in a different place from specified by the NAAQS in order to actions not covered under the promulgation of this rule. assess whether the region's air quality is transportation conformity. The General Furthermore, any such changes in in attainment with the NAAQS. When Conformity Rule establishes emissions emissions-especially those occurring the measured concentrations of a thresholds, or de minimis levels, for use in specific nonattainment or criteria pollutant within a geographic in evaluating the conformity of an maintenance areas-are not reasonably area are below those permitted by the action that results in emissions foreseeable. Any such changes are NAAQS, EPA designates the region as increases. 30 5 If the net increases of an attainment area for that pollutant, direct and indirect emissions are lower while areas where concentrations of 30640 CFR 93.153(c). criteria pollutants exceed Federal 30740 CFR 93.152. 30142 U.S.C. 7506(c)(1) and (5). 30840 CFR 93.153(c)(2)(iii). standards (or nearby areas that 302 42 U.S.C. 7506(c)(2) and (5). 309Department of Transp. v. Public Citizen, 541 303 40 CFR part 51, subpart T, and part 93, subpart contribute to such concentrations) are U.S. 752, 772 (2004) ("[T]he emissions from the A. Mexican trucks are not 'direct' because they will 300 Oregon Department of Environmental Quality, 304 40 CFR part 93, subpart B. not occur at the same time or at the same place as Docket No. NHTSA-2017-0069-0526. 305 40 CFR 93.153(b). the promulgation of the regulations."). 51356USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 54 of 61 unlikely because this action does not emissions." 312 With regard to Pursuant to Section 7(a)(2) of the ESA, impact in any way the Federal standards preemption, NHTSA lacks the the agencies have reviewed this action in place for criteria pollutant emissions discretion and authority to keep the and have considered applicable ESA from automobiles. Further, this action California waiver and regulations in regulations, case law, and guidance to does not impact the Federal standards place, as a State or local law or determine what, if any, obligations the in place for greenhouse gas emissions regulation related to automobile fuel agencies have under the ESA. The from automobiles or fuel economy economy standards is void ab initio agencies have considered issues related standards. Since California and other under the preemptive force of EPCA. to emissions of CO 2 and other GHGs and section 177 States have "deemed" NHTSA cannot be considered to issues related to non-GHG emissions. compliance with the Federal standards practically control or have continuing Based on this assessment, the agencies to be compliance with the State program responsibility for emissions have determined that their actions standards, it is not clear that this action that could result from preemption when (withdrawal of California's waiver and (as it pertains to the State's greenhouse that result is required by Federal the final rule regarding preemption) do gas emissions standards) would result in statute. 313 NHTSA also does not have not require consultation under Section changes to the anticipated fleet of continuing program responsibility for 7(a)(2) of the ESA. vehicles in those States and therefore to emissions that occur in California and a. The Agencies Lack Discretionary criteria pollutant emissions. Any other section 177 States, are regulated Authority impacts associated with potential by the Clean Air Act, and for which the changes to Federal standards are not a States and local governments can NHTSA's final rule adopts regulatory result of this action and are purely continue to address in numerous ways text (including a detailed appendix) speculative until the agencies finalize a that do not conflict with Federal law. regarding EPCA's preemption provision, in addition to discussing the issue in change. Additionally, we note For the foregoing reasons, this action this preamble to the rule, specifically to California's statement in its 2013 waiver does not cause direct or indirect provide needed clarity on that request that "[t]here is no criteria emissions under the General Conformity emissions benefit from including the provision. The new regulatory text Rule, and a general conformity provides for why any law or regulation ZEV proposal in terms of vehicle (tank- determination is not required. NHTSA to-wheel or TTW) emissions. The LEV of a State or a political subdivision of will address any responsibilities under a State regulating or prohibiting tailpipe III criteria pollutant fleet standard is the General Conformity Rule as it responsible for those emission carbon dioxide emissions from pertains to potential changes to the fuel reductions in the fleet...... 31o As automobiles is expressly and impliedly economy standards in the forthcoming preempted by EPCA. Any preemptive discussed previously, this action final rule for that action. clarifies that criteria pollutant standards effect resulting from this final action is are not preempted unless they have a 3. Endangered Species Act not the result of the exercise of Agency direct or substantial relationship to fuel discretion, but rather reflects the Under Section 7(a)(2) of the economy standards. California's LEV III operation and application of the Federal Endangered Species Act (ESA), Federal criteria pollution standard would not be statute. NHTSA does not have authority agencies must ensure that actions they preempted under this approach. to waive any aspect of EPCA Indirect emissions under the General authorize, fund, or carry out are "not preemption no matter the potential Conformity Rule are "those emissions of likely to jeopardize the continued impacts; rather, preempted standards a criteria pollutant or its precursors: (1) existence" of any Federally listed are void ab initio. That are caused or initiated by the threatened or endangered species or EPA's action is to withdraw the Federal action and originate in the same result in the destruction or adverse waiver it had previously provided in nonattainment or maintenance area but modification of the designated critical January 2013 to California for that occur at a different time or place as the habitat of these species. 16 U.S.C. State's GHG and ZEV programs under 1536(a)(2). If a Federal agency action; (2) That are reasonably section 209 of the Clean Air Act. This foreseeable; (3) That the agency can determines that an agency action may action is being undertaken on two practically control; and (4) For which affect a listed species or designated separate and independent grounds. the agency has continuing program critical habitat, it must initiate First, EPA has determined EPCA consultation with the appropriate preemption renders its prior grant of a responsibility." 311 Each element of the definition must be met to qualify as Service-the U.S. Fish and Wildlife waiver for those aspects of California's indirect emissions. NHTSA finds that Service (FWS) of the Department of the regulations that EPCA preempts invalid, neither of the first two criteria are Interior (DOI) and/or the National null, and void, thereby necessitating satisfied for the same reasons as Oceanic and Atmospheric withdrawal of the waiver. Second, EPA presented regarding direct emissions. Administration's National Marine concludes that CAA section Furthermore, NHTSA cannot Fisheries Service of the Department of 209(b)(1)(B), which provides that EPA practically control, nor does it have Commerce (together, "the Services"), shall not issue a waiver if California continuing program responsibility for, depending on the species involved-in does not "need" separate state standards any emissions that could occur as a order to ensure that the action is not "to meet compelling and extraordinary result of preemption. "[E]ven if a likely to jeopardize the species or conditions," was not intended to allow Federal licensing, rulemaking, or other destroy or adversely modify designated California to promulgate State standards approving action is a required initial critical habitat. See 50 CFR 402.14. for emissions from new motor vehicles step for a subsequent activity that Under this standard, the Federal agency designed to address global climate causes emissions, such initial steps do taking action evaluates the possible change problems. Therefore, California not mean that a Federal agency can effects of its action and determines does not meet the necessary criteria to practically control any resulting whether to initiate consultation. See 51 receive a waiver for these aspects of its FR 19926, 19949 (June 3, 1986). program. Similar to NHTSA, these 310 Docket No. EPA-HQ-OAR-2012-0562, pp. decisions are not discretionary, but 15-16. 31240 CFR 93.152. rather reflect EPA's conclusion that 31140 CFR 93.152. 313 See Public Citizen, 541 U.S. at 772-3. EPCA preemption and the requirements USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 55 of 6151357 of the Clean Air Act prohibit the attenuated to require Section 7(a)(2) longstanding application of the ESA, granting of a waiver to California. consultation. The agencies base this these interpretations apply equally The Supreme Court has held that conclusion both on the language of the under the existing regulations (which Section 7(a)(2) of the ESA and its Section 7(a)(2) implementing are effective through September 25, implementing regulations apply only to regulations and on the long history of 2019) and the new regulations (which actions in which there is discretionary actions and guidance provided by DOI. are effective beginning September 26, Federal authority. a 14 In National The Section 7(a)(2) implementing 2019). Association of Home Builders, EPA regulations require consultation if a Any potential effects of this action to considered the requirement of Section Federal agency determines its action threatened or endangered species or "may affect" 402(b) of the Clean Water Act that EPA listed species or critical designated critical habitat would be a 3 1 7 transfer certain permitting powers to habitat. The Services' current result of changes to GHG or criteria air State authorities upon an application regulations define "effects of the action" pollutant emissions. In the next section, and a showing that nine specified in relevant part as "the direct and the agencies discuss why this action is criteria had been met. The Court indirect effects of an action on the not anticipated to result in changes to concluded that the ESA did not operate species or critical habitat, together with GHG or criteria air pollutant emissions. as a "tenth criterion." 315 According to the effects of other activities that are However, even if such changes to the Court: "While the EPA may exercise interrelated or interdependent with that emissions were to occur, the agencies do some judgment in determining whether action, that will be added to the not believe resulting impacts to listed a State has demonstrated that it has the environmental baseline." 318 Further, species or critical habitat satisfy the authority to carry out [the] enumerated they define indirect effects as "those "but for" test or are "reasonably certain statutory criteria, the statute clearly that are caused by the proposed action to occur." does not grant it the discretion to add and are later in time, but still are GHG emissions are relevant to Section another entirely separate prerequisite to reasonably certain to occur." 319 7(a)(2) consultation because of the that list. Nothing in the text of [the The Services' recently published final potential impacts of climate change on statute] authorizes the EPA to consider rule revising the definition of "effects of listed species or critical habitat. For the protection of threatened or the action" to be "all consequences to example, one comment to the NPRM endangered species as an end in itself listed species or critical habitat that are documented the potential impacts of when evaluating a transfer caused by the proposed action, climate change on federally protected including the consequences of other application." 316 species and included a five-page table of The agencies believe this holding activities that are caused by the species listed during 2006 to 2015 for proposed action. A consequence is applies to the instant action as well. As which the commenters claim climate caused by the proposed action if it this action results from change was a listing factor.323 However, would not occur but nondiscretionary authorities, the for the proposed the agencies believe this comment action and it is reasonably certain to Section 7(a)(2) implementing inappropriately attributes the entire occur." 320 In the preamble to the final regulations expressly exclude them from issue of climate change, including all rule, the Services emphasized that the coverage. Neither ECPA nor the Clean GHG emissions no matter which sector "but for" test and "reasonably certain to Air Act include the protection of generated them, to NHTSA and EPA's occur" are not new or heightened threatened or endangered species as a actions. 324 In fact, the commenter standards.321 In this context, "'but for' consideration for the application of demonstrates the very issue with doing causation means that the consequence preemption (which operates by statute) in question would not occur if the so: There is no "but for" causation or the prohibition on the granting of a proposed action did not go forward associated with EPA's revocation of waiver (under the enumerated statutory California's waiver and NHTSA's final ... *. In other words, if the agency fails criterion in CAA section 209(b)(1)(B)). to take the proposed action and the rule on preemption, as the impacts of Although there is some judgment in activity would still occur, there is no climate change will occur regardless of considering the application of EPCA 'but for' causation. In that event, the this action. Furthermore, even if this and the CAA, neither action involves activity would not be considered an action results in changes to GHG the type of discretion that would require effect of the action under emissions, such changes would be a Section 7(a)(2) consultation by the extremely small compared to global consultation." 322 As the Services do not agencies with the Services. consider these to be changes in their GHG emissions. There is no scientific evidence that sufficiently "connects the b. Any Effects Resulting From the dots" between those changes in Agencies' Actions Are too Attenuated 317 50 CFR 402.14(a). The Departments of the emissions and any particular impact to for Consultation To Be Required Interior and Commerce recently issued a final rule revising the regulations governing the ESA Section a listed species or critical habitat; thus, In addition, the agencies have 7 consultation process. 84 FR 44966 (Aug. 27, any impacts are not "reasonably certain 2019). The new regulations take effect on considered the potential effects of this September 26, 2019. As discussed in the text above, to occur." States (such as California) action to listed threatened or the agencies do not believe that the change in and local governments may also endangered species or designated regulations has any effect on the agencies' analysis continue to encourage ZEVs in here. critical habitat of these species and 318 50 CFR 402.02. numerous ways that do not conflict with 3 19 concludes that any such effects are too Id. 320 50 CFR 402.02, as amended by 84 FR 44976, 323 Center for Biological Diversity, Sierra Club, 314 National Ass'n of Home Builders v. Defenders 45016 (Aug. 27, 2019) (effective Sept. 26, 2019). and Public Citizen, Inc., Docket No. NHTSA-2018- of Wildlife, 551 U.S. 644, 673 (2007) ("Applying 32184 FR at 44977 ("As discussed in the proposed 0067-12378. Chevron, we defer to the Agency's reasonable rule, the Services have applied the 'but for' test to 324 See, e.g., 78 FR 11766, 11785 (Feb. 20, 2013) interpretation of ESA [section] 7(a)(2) as applying determine causation for decades. That is, we have ("Without the requirement of a causal connection only to 'actions in which there is discretionary looked at the consequences of an action and used between the action under consultation and effects Federal involvement or control.'" (quoting 50 CFR the causation standard of 'but for' plus an element to species, literally every agency action that 402.03)). of foreseeability (i.e., reasonably certain to occur) to contributes GHG emissions to the atmosphere 315 National Ass'n of Home Builders, 551 U.S. at determine whether the consequence was caused by would arguably result in consultation with respect 649. 316 the action under consultation."). to every listed species that may be affected by 1d. at 671. 322 Id. climate change."). 51358USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 56 of 61
Federal law, which may also prevent Special Rule for the Polar Bear. 3 2 8 In action to amend the Federal GHG and any alleged impact from these actions. that final rule, FWS provided that for fuel economy standards that were Similarly, with regard to criteria air ESA section 7, the determination of promulgated in 2012, California's pollutants, States are still subject to the whether consultation is triggered is "deemed to comply" provision remains Clean Air Act, which requires narrow and focused on the discrete operative. As OEMs are anticipated to limitations on emissions of those effect of the proposed agency action. make use of this compliance pollutants. Furthermore, since FWS wrote, "[T]he consultation mechanism, CARB's GHG standards are California and other Section 177 States requirement is triggered only if there is functionally identical to Federal have "deemed" compliance with the a causal connection between the standards, and their preemption would Federal standards to be compliance with proposed action and a discernible effect not result in additional environmental the State standards, it is not clear that to the species or critical habitat that is impacts. Any impacts associated with this action would result in changes to reasonably certain to occur. One must potential changes to Federal standards emissions. Any impacts associated with be able to 'connect the dots' between an are not a result of this action and are potential changes to Federal standards effect of a proposed action and an purely speculative until the agencies are not a result of this action and are impact to the species and there must be finalize a change. purely speculative until the agencies a reasonable certainty that the effect will Finally, we again note California's finalize a change. We again note occur." 329 The statement in the revised 2013 waiver request statement that there California's statement in its 2013 waiver Final Special Rule is consistent with the is no criteria emissions benefit request that "[t]here isno criteria prior guidance published by FWS and associated with the ZEV program emissions benefit from including the remains valid today.330 Ultimately, EPA because the LEV III criteria pollution ZEV proposal in terms of vehicle (tank- and NHTSA are not able to make a standard is responsible for those to-wheel or TTW) emissions. The LEV causal link for purposes of Section emissions reductions. This action III criteria pollutant fleet standard is 7(a)(2) that would "connect the dots" clarifies that criteria pollutant standards responsible for those emission between this action, vehicle emissions are not preempted unless they have a reductions in the fleet .... ." 325 As from motor vehicles affected by this direct or substantial relationship to fuel discussed previously, this action action, climate change, and particular economy standards. California's LEV III clarifies that criteria pollutant standards impacts to listed species or critical criteria pollution standard would not be are not preempted unless they have a habitats. Therefore, no Section 7(a)(2) preempted under this approach. direct or substantial relationship to fuel consultation is required. Therefore, those benefits are anticipated economy standards. California's LEV III c. The Agencies' Actions Would Have to remain in place. criteria pollution standard would not be No Effect on Listed Species and For the foregoing reasons, automobile preempted under this approach, and Designated Critical Habitat emissions are not anticipated to change that program's benefits are anticipated as a result of this action. Even if they do, to remain in place. In addition to the foregoing a Section any change would be so minimal as to The agencies have also considered the 7(a)(2) consultation is not required be unlikely to pose any effects on a long history of actions and guidance because this action will have no effect listed species or critical habitat. Because provided by DOI. To that point, the on a listed species or designated critical any effect on a listed species or critical habitat. This notification and final rule agencies incorporate by reference habitat is not reasonably certain to Appendix G of the MY 2012-2016 CAFE only address the issues of California's occur, the agencies conclude that there 3 2 6 waiver and preemption; they do not set standards EIS. That analysis relied on will be no effect on listed species or CAFE standards. Fundamentally, this the significant legal and technical critical habitat under the Section action is about which sovereign entity analysis undertaken by FWS and DOI. (7)(a)(2) implementing regulations, and (i.e., the Federal government or State Specifically, NHTSA looked at the no Section 7(a)(2) consultation is governments) can issue standards that history of the Polar Bear Special Rule required for this action. relate to fuel economy. EPCA is clear and several guidance memoranda that this authority is restricted to the 4. National Historic Preservation Act provided by FWS and the U.S. Federal government. This action (NHPA) Geological Survey. Ultimately, FWS provides clarity on the boundary set by concluded that a causal link could The NHPA (54 U.S.C. 300101 et seq.) not Congress, as well as under principles of be made between GHG emissions sets forth government policy and implied preemption. associated with a proposed Federal procedures regarding "historic As previously described, absent this properties" -that is, districts, sites, action and specific effects on listed action, OEMs would likely produce species; therefore, no Section 7(a)(2) buildings, structures, and objects more efficient vehicles for sale in included on or eligible for the National consultation would be required. California and the States that have Subsequent to the publication of that Register of Historic Places. Section 106 adopted California's standards, but the of the NHPA requires federal agencies to Appendix, a court vacated the Polar increased fuel economy of these Bear Special Rule on NEPA grounds, "take into account" the effects of their vehicles would likely be offset by less 331 though it upheld the ESA analysis as actions on historic properties. The efficient vehicles produced for sale in agencies conclude that the NHPA is not having a rational basis.327 FWS the rest of the U.S., leading to little to subsequently issued a revised Final applicable to this action because a rule no change in either fuel use or GHG regarding the preemption of State laws 32 emissions at a national level. Further, as 5 Docket No. EPA-HQ-OAR-2012-0562, pp. and a decision to revoke California's EPA and NHTSA have not finalized any 15-16. waiver are not the type of activities that 326 Available on NHTSA's Corporate Average Fuel 328 78 FR 11766 (Feb. 20, 2013). have the potential to cause effects on Economy website https://one.nhtsa.gov/Laws-&- historic properties. This conclusion is Regulations/CAFE- %E2 % 80 % 93-Fuel-Economy/ 329 78 FR at 11784-11785. Final-EIS-for-CAFE-Passenger-Cars-and-Light- 330 See DOI Solicitor's Opinion No. M-37017, supported by the lack of discretion over Trucks, -Model-Years-2012"%E2 %80% 932016. "Guidance on the Applicability of the Endangered 327In re: PolarBear Endangered Species Act Species Act Consultation Requirements to Proposed 331 Section 106 is now codified at 54 U.S.C. Listing and Section 4(D) Rule Litigation, 818 F. Actions Involving the Emissions of Greenhouse 306108. Implementing regulations for the Section Supp. 2d 214 (D.D.C. Oct. 17, 2011). Gases" (Oct. 3, 2008). 106 process are located at 36 CFR part 800. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 57 of 6151359 preemption and the underlying the fact that any causal relationship programs affecting land use, including justification for the withdrawal of the between effects on coastal zones as a but not limited to water and related land waiver to California, the fact that any result of emissions from the sale and resources planning, regulating, and causal relationship between effects on operation of motor vehicles in California licensing activities." DOT Order 5660.1a historic properties as a result of and section 177 States and this action sets forth DOT policy for interpreting emissions from the sale and operation of are too attenuated, and the conclusion Executive Order 11990 and requires that that impacts are not reasonably transportation projects "located in or motor vehicles in California and section 334 177 States and this action are too foreseeable. having an impact on wetlands" should attenuated, and the conclusion that be conducted to assure protection of the 7. Floodplain Management (Executive Nation's wetlands. If a project does have impacts are not reasonably Order 11988 and DOT Order 5650.2) foreseeable.332 a significant impact on wetlands, an EIS These Orders require Federal agencies must be prepared. 5. Fish and Wildlife Conservation Act to avoid the long- and short-term In this action, the agencies are not (FWCA) adverse impacts associated with the undertaking or providing assistance for The FWCA (16 U.S.C. 2901 et seq.) occupancy and modification of new construction located in wetlands provides financial and technical floodplains, and to restore and preserve and conclude that these Orders do not assistance to States for the development, the natural and beneficial values served apply to this action. by floodplains. Executive Order 11988 revision, and implementation of 9. Migratory Bird Treaty Act (MBTA), also directs agencies to minimize the conservation plans and programs for Bald and Golden Eagle Protection Act impact of floods on human safety, nongame fish and wildlife. In addition, (BGEPA), Executive Order 13186 the Act encourages all Federal health and welfare, and to restore and departments and agencies to utilize preserve the natural and beneficial The MBTA (16 U.S.C. 703-712) their statutory and administrative values served by floodplains through provides for the protection of certain authorities to conserve and to promote evaluating the potential effects of any migratory birds by making it illegal for conservation of nongame fish and actions the agency may take in a anyone to "pursue, hunt, take, capture, wildlife and their habitats. The agencies floodplain and ensuring that its program kill, attempt to take, capture, or kill, conclude that the FWCA is not planning and budget requests reflect possess, offer for sale, sell, offer to applicable to this action because it does consideration of flood hazards and barter, barter, offer to purchase, not involve the conservation of floodplain management. DOT Order purchase, deliver for shipment, ship, nongame fish and wildlife and their 5650.2 sets forth DOT policies and export, import, cause to be shipped, habitats. procedures for implementing Executive exported, or imported, deliver for Order 11988. The DOT Order requires transportation, transport or cause to be 6. Coastal Zone Management Act that the agency determine if a proposed transported, carry or cause to be carried, (CZMA) action is within the limits of a base or receive for shipment, transportation, carriage, or export" any migratory bird The Coastal Zone Management Act floodplain, meaning it is encroaching on 335 (16 U.S.C. 1451 et seq.) provides for the the floodplain, and whether this covered under the statute. preservation, protection, development, encroachment is significant. If The BGEPA (16 U.S.C. 668-668d) and (where possible) restoration and significant, the agency is required to makes it illegal to "take, possess, sell, enhancement of the nation's coastal conduct further analysis of the proposed purchase, barter, offer to sell, purchase zone resources. Under the statute, States action and any practicable alternatives. or barter, transport, export or import" are provided with funds and technical If a practicable alternative avoids any bald or golden eagles.336 Executive assistance in developing coastal zone floodplain encroachment, then the Order 13186, "Responsibilities of management programs. Each agency is required to implement it. Federal Agencies to Protect Migratory participating State must submit its In this action, the agencies are not Birds," helps to further the purposes of program to the Secretary of Commerce occupying, modifying and/or the MBTA by requiring a Federal agency for approval. Once the program has been encroaching on floodplains. The to develop a Memorandum of approved, any activity of a Federal agencies, therefore, conclude that the Understanding (MOU) with the Fish and agency, either within or outside of the Orders are not applicable to this action. Wildlife Service when it is taking an coastal zone, that affects any land or action that has (or is likely to have) a 8. Preservation of the Nation's Wetlands water use or natural resource of the measurable negative impact on (Executive Order 11990 and DOT Order coastal zone must be carried out in a migratory bird populations. 5660.1a) manner that is consistent, to the The agencies conclude that the maximum extent practicable, with the These Orders require Federal agencies MBTA, BGEPA, and Executive Order enforceable policies of the State's to avoid, to the extent possible, 13186 do not apply to this action 333 program. undertaking or providing assistance for because there is no disturbance, take, The agencies conclude that the CZMA new construction located in wetlands measurable negative impact, or other is not applicable to this action because unless the agency head finds that there covered activity involving migratory it does not involve an activity within, or is no practicable alternative to such birds or bald or golden eagles involved outside of, the nation's coastal zones construction and that the proposed in this rulemaking. This conclusion is that affects any land or water use or action includes all practicable measures supported by the lack of discretion over natural resource of the coastal zone. to minimize harms to wetlands that may preemption and the reasons underlying This conclusion is supported by the lack result from such use. Executive Order justification for the withdrawal of the of discretion over preemption and the 11990 also directs agencies to take waiver to California, the fact that any underlying justification for the action to minimize the destruction, loss causal relationship between effects on withdrawal of the waiver to California, or degradation of wetlands in migratory birds or bald or golden eagles "conducting Federal activities and as a result of emissions from the sale 332 See the discussions regarding NEPA, Clean Air Act Conformity, and the ESA. 334 See the discussions regarding NEPA, Clean Air 335 16 U.S.C. 703(a). 333 16 U.S.C. 1456(c)(1)(A). Act Conformity, and the ESA. 33616 U.S.C. 668(a). 51360USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 58 of 61 and operation of motor vehicles in preemption and the underlying This joint action only concern the California and section 177 States and justification for the withdrawal of the question of preemption; the joint action this action are too attenuated, and the waiver to California, the fact that any does not set CAFE or emissions conclusion that impacts are not causal relationship between effects on standards themselves. Further, as the 7 reasonably foreseeable.33 minority or low-income populations as California waiver withdrawal is not a a result of emissions from the sale and rulemaking, it is not subject to the RFA. 10. Department of Transportation Act operation of motor vehicles in California Accordingly, only NHTSA's final rule (Section 4(fl) and section 177 States and this action establishing regulatory text related to Section 4(f) of the Department of are too attenuated, and the conclusion preemption is at issue in this action. Transportation Act of 1966 (49 U.S.C. that impacts are not reasonably NHTSA has considered the impacts of 303), as amended, is designed to foreseeable.338 this document under the Regulatory preserve publicly owned park and Flexibility Act and certifies that this recreation lands, waterfowl and wildlife 12. Executive Order 13045: "Protection rule would not have a significant refuges, and historic sites. Specifically, of Children From Environmental Health economic impact on a substantial Section 4(f) provides that DOT agencies Risks and Safety Risks" number of small entities. One cannot approve a transportation commenter, Workhorse Group, Inc. This action is not subject to E.O. program or project that requires the use 13045 (62 FR 19885, April 23, 1997) (Workforce), in comments echoed by a of any publicly owned land from a trade association, argued that it was a because it is not an economically public park, recreation small business and would be affected area, or wildlife significant regulatory action as defined the preemption provisions because it or waterfowl refuge of national, State, or by E.O. 12866, and the agencies have no local significance, would no longer be able to earn and sell or any land from a reason to believe that the environmental credits under the ZEV mandates historic site of national, State, or local health or safety risks related to this established by California and the other significance, unless a determination is action may have a disproportionate 177 States. This argument is not made that: effect on children because it does not (1) There is no feasible and prudent persuasive, as the preemption regulation change existing Federal standards. This alternative to the use of land, and has no direct effect on Workforce or any conclusion is supported by the lack of (2) The program or project includes other similar entity because it does not discretion over preemption and the all possible planning to minimize harm regulate any private entity, but instead to the property resulting from the use. underlying justification for the clarifies the agency's views on what These requirements may be satisfied if withdrawal of the waiver to California, State or local laws are preempted. Thus, the transportation use of a Section 4(f) the fact that any causal relationship any effect on Workhorse or any other property results in a de minimis impact between effects on children as a result similar entities is, at most, indirect. Any on the area. of emissions from the sale and operation effect is even further attenuated by the NHTSA concludes that Section 4(f) is of motor vehicles in California and fact that small entities such as not applicable to its final rule here section 177 States and this action are Workhorse are not even subject to a ZEV because this rulemaking is not an too attenuated, and the conclusion that mandate, but choose to participate in impacts are not reasonably approval of a transportation program or 339 the program voluntarily. project that requires the use of any foreseeable. Additionally, in keeping with publicly owned land. G. RegulatoryFlexibility Act previous waiver actions, EPA's action is not a rule as defined in the Regulatory 11. Executive Order 12898: "Federal Pursuant to the Regulatory Flexibility Flexibility Act, 5 U.S.C. 601(2). Actions To Address Environmental Act (5 U.S.C. 601 et seq., as amended by Therefore, EPA has not prepared a Justice in Minority Populations and the Small Business Regulatory supporting regulatory flexibility Low-Income Populations" Enforcement Fairness Act (SBREFA) of analysis addressing the impact of this Executive Order (E.O.) 12898 (59 FR 1996), whenever an agency is required action on small business entities. See 78 7629 (Feb. 16, 1994)) establishes Federal to publish a notice of proposed FR at 2145 (Jan. 9, 2013); 74 FR at 32784 executive policy on environmental rulemaking or final rule, it must prepare (July 8, 2009); 73 FR at 12169 (Mar. 6, justice. Its main provision directs and make available for public comment 2008). Federal agencies, to the greatest extent a regulatory flexibility analysis that H. Executive Order 13132 (Federalism) practicable and permitted by law, to describes the effect of the rule on small make environmental justice part of their entities (i.e., small businesses, small Executive Order 13132 requires mission by identifying and addressing, organizations, and small governmental federal agencies to develop an as appropriate, disproportionately high jurisdictions). No regulatory flexibility accountable process to ensure 'meaningful and timely input and adverse human health or analysis is required if the head of an by State environmental effects of their programs, agency certifies the proposal will not and local officials in the development of policies, and activities on minority have a significant economic impact on regulatory policies that have federalism populations and low-income a substantial number of small entities. implications." The Order defines the populations in the United States. SBREFA amended the Regulatory term "Policies that have federalism The agencies have determined that Flexibility Act to require Federal implications" to include regulations this action will not have agencies to provide a statement of the that have "substantial direct effects on disproportionately high and adverse factual basis for certifying that a the States, on the relationship between human health or environmental effects proposal will not have a significant the national government and the States, on minority or low-income populations economic impact on a substantial or on the distribution of power and because it does not change existing number of small entities. responsibilities among the various Federal standards. This conclusion is levels of government." Under the Order, agencies may not issue a regulation that supported by the lack of discretion over 338 See the discussions regarding NEPA, the Clean Air Act Conformity, and the ESA. has federalism implications, that 337 See the discussions regarding NEPA, Clean Air 339 See the discussions regarding NEPA, the Clean imposes substantial direct compliance Act Conformity, and the ESA. Air Act Conformity, and the ESA. costs, unless the Federal government USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 59 of 6151361 provides the funds necessary to pay the the aggregate, or by the private sector of be discussed in the final rule that will direct compliance costs incurred by more than $148 million annually. establish CAFE and GHG standards. State and local governments, or the L. Regulation Identifier Number P. Privacy Act agencies consult with State and local officials early in the process of The Department of Transportation In accordance with 5 U.S.C. 553(c), developing the proposed regulation. The assigns a regulation identifier number the agencies solicited comments from agencies complied with Order's (RIN) to each regulatory action listed in the public to better inform the requirements and discuss their response the Unified Agenda of Federal rulemaking process. These comments to comments in the above sections. Regulations. The Regulatory Information are posted, without edit, to Service Center publishes the Unified www.regulations.gov,as described in L Executive Order 12988 (Civil Justice Agenda in April and October of each DOT's system of records notice, DOT/ Reform) year. You may use the RIN contained in ALL-14 FDMS, accessible through Pursuant to Executive Order 12988, the heading at the beginning of this www.transportation.gov/privacy. document to find this action in the "Civil Justice Reform," 340 NHTSA has Unified Agenda. Q. Judicial Review determined that this final rule does not have any retroactive effect. M. National Technology Transfer and NHTSA and EPA undertake this joint Advancement Act action under their respective authorities J. Executive Order 13175 (Consultation pursuant to the Energy Policy and and Coordination With Indian Tribal Section 12(d) of the National Conservation Act and the Clean Air Act, Governments) Technology Transfer and Advancement mindful of the Supreme Court's Act (NTTAA) requires NHTSA and EPA statement in Massachusetts v. EPA, 549 This final rule does not have tribal to evaluate and use existing voluntary U.S. 497, 532 (2007), that "there is no implications, as specified in Executive consensus standards in its regulatory reason to think the two agencies cannot 13175 Order (65 FR 67249, November 9, activities unless doing so would be both administer their obligations and 2000). This rule will be implemented at inconsistent with applicable law (e.g., yet avoid inconsistency." Pursuant to the Federal level. Thus, Executive Order the statutory provisions regarding Clean Air Act section 307(b), any 13175 does not apply to this rule. Two NHTSA's vehicle safety authority, or petitions for judicial review of this commenters raised issues associated EPA's testing authority) or otherwise action must be filed in the United States with this Executive Order. Issues raised impractical.342 As this action does not Court of Appeals for the D.C. Circuit by in these comments related to the affect the CAFE or GHG standards, it is November 26, 2019. Given the inherent standards will be addressed that not subject to the NTTAA. relationship between the agencies' forthcoming rulemaking. One actions, any challenges to NHTSA's commenter, in an apparent reference to N. Department of Energy Review regulation should also be filed in the the preemption actions being finalized 49 U.S.C. 32902(j)(2) requires that United States Court of Appeals for the "Before taking final action on a standard in this document, argued that the NPRM D.C. Circuit. would weaken tribal abilities to set GHG or an exemption from a standard under standards. This is incorrect: The this section, the Secretary of List of Subjects in 49 CFR Parts 531 and finalization of the EPCA preemption Transportation shall notify the Secretary 533 provisions merely clarifies the law that of Energy and provide the Secretary of Fuel economy. any law or regulation of a State or Energy a reasonable time to comment." political subdivision of a State "related As this action does not establish a Regulatory Text to" fuel economy is preempted, while standard or provide an exemption, it is In consideration of the foregoing, EPA's decision in this document only not subject to this requirement. under the authority of 49 U.S.C. 322, However, NHTSA has submitted this affects a State, not a Tribal government. 32901, 32902, and 32903, and action to OMB for interagency review K. Unfunded Mandates Reform Act delegation of authority at 49 CFR 1.95, and, thus, the Department of Energy has NHTSA amends 49 CFR chapter V as Section 202 of the Unfunded been afforded the opportunity to review. follows: Mandates Reform Act of 1995 (UMRA) 0. PaperworkReduction Act requires Federal agencies to prepare a PART 531-PASSENGER The Paperwork Reduction Act (PRA) written assessment of the costs, benefits, 3 4 3 AUTOMOBILE AVERAGE FUEL and other effects of a proposed or final of 1995, Public Law 104-13, gives the ECONOMY STANDARDS rule that includes a Federal mandate Office of Management and Budget likely to result in the expenditure by (OMB) authority to regulate matters m 1. The authority citation for part 531 State, local, or tribal governments, in the regarding the collection, management, continues to read as follows: storage, and dissemination of certain aggregate, or by the private sector, of Authority: 49 U.S.C. 32902, delegation of more than $100 million in any one year information by and for the Federal government. It seeks to reduce the total authority at 49 CFR 1.50. (adjusted for inflation with base year of amount of paperwork § 1995). Adjusting this amount by the handled by the * 2. Add 531.7 to read as follows: implicit gross domestic product price government and the public. The PRA requires Federal agencies § 531.7 Preemption. deflator for 2016 results in $148 million to place a 3 4 1 notice in the Federal Register seeking (a) General. When an average fuel (111.416/75.324 = 1.48). This final public comment on the proposed economy standard prescribed under this rule will not result in the expenditure chapter is in effect, a State or a political by State, local, or Tribal governments, in collection of information. This action includes no information collections. subdivision of a State may not adopt or The information collections associated enforce a law or regulation related to 34061 FR 4729 (Feb. 7, 1996). fuel economy standards or average fuel 341 Bureau of Economic Analysis, National with the CAFE and GHG programs will Income and Product Accounts (NIPA), Table 1.1.9 economy standards for automobiles Implicit Price Deflators for Gross Domestic Product. 342 15 U.S.C. 272. covered by an average fuel economy https://bea.gov/iTablelindex nipa.cfm. 343 Codified at 44 U.S.C. 3501 et seq. standard under this chapter. 51362USCA Federal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 60 of 61
(b) Requirements must be identical. (1) A law or regulation of a State or a references to "Appendix" and add in When a requirement under section political subdivision of a State regulating their place "Appendix A". 32908 of title 49 of the United States tailpipe carbon dioxide emissions from automobiles, particularly a law or regulation * 8. Add appendix B to part 533 to read Code is in effect, a State or a political that is not attribute-based and does not as follows: subdivision of a State may adopt or separately regulate passenger cars and light Appendix B to Part 533-Preemption enforce a law or regulation on trucks, conflicts with: disclosure of fuel economy or fuel (A) The fuel economy standards in this (a) Express Preemption: operating costs for an automobile part; (1) To the extent that any law or regulation covered by section 32908 only if the law (B) The judgments made by the agency in of a State or a political subdivision of a State or regulation is identical to that establishing those standards; and regulates or prohibits tailpipe carbon dioxide requirement. (C) The achievement of the objectives of emissions from automobiles, such a law or (c) State and political subdivision the statute (49 U.S.C. Chapter 329) under regulation relates to average fuel economy which those standards were established, standards within the meaning of 49 U.S.C. automobiles. A State or a political including objectives relating to reducing fuel 32919. subdivision of a State may prescribe consumption in a manner and to the extent (A) Automobile fuel economy is directly requirements for fuel economy for consistent with manufacturer flexibility, and substantially related to automobile automobiles obtained for its own use. consumer choice, and automobile safety. tailpipe emissions of carbon dioxide; (2) Any law or regulation of a State or a (B) Carbon dioxide is the natural by- Appendix to Part 531 [Designated as political subdivision of a State regulating or product of automobile fuel consumption; Appendix A to Part 531 and Amended] prohibiting tailpipe carbon dioxide emissions (C) The most significant and controlling * 3. Designate the appendix to part 531 from automobiles is impliedly preempted factor in making the measurements necessary under 49 U.S.C. Chapter 329. as appendix A to part 531 and in newly to determine the compliance of automobiles (3) A law or regulation of a State or a with the fuel economy standards in this part designated appendix A, remove all political subdivision of a State having the is their rate of tailpipe carbon dioxide references to "Appendix" and add in direct or substantial effect of regulating or emissions; their place "Appendix A." prohibiting tailpipe carbon dioxide emissions (D) Almost all technologically feasible * 4. Add appendix B to part 531 to read from automobiles or automobile fuel reduction of tailpipe emissions of carbon as follows: economy is impliedly preempted under 49 dioxide is achievable through improving fuel U.S.C. Chapter 329. economy, thereby reducing both the Appendix B to Part 531-Preemption consumption of fuel and the creation and PART 533-LIGHT TRUCK FUEL (a) Express Preemption: emission of carbon dioxide; ECONOMY STANDARDS (1) To the extent that any law or regulation (E) Accordingly, as a practical matter, of a State or a political subdivision of a State regulating fuel economy controls the amount 5. The authority citation for part 533 regulates or prohibits tailpipe carbon dioxide of tailpipe emissions of carbon dioxide, and emissions from automobiles, such a law or continues to read as follows: regulating the tailpipe emissions of carbon regulation relates to average fuel economy Authority: 49 U.S.C. 32902; delegation of dioxide controls fuel economy. standards within the meaning of 49 U.S.C. authority at 49 CFR 1.50. (2) As a law or regulation of a State or a 32919. political subdivision of a State related to fuel * 6. Add § 533.7 to read as follows: (A) Automobile fuel economy is directly economy standards, any state law or regulation regulating or prohibiting tailpipe and substantially related to automobile § 533.7 Preemption. tailpipe emissions of carbon dioxide; carbon dioxide emissions from automobiles (B) Carbon dioxide is the natural by- (a) General. When an average fuel is expressly preempted under 49 U.S.C. product of automobile fuel consumption; economy standard prescribed under this 32919. (C) The most significant and controlling chapter is in effect, a State or a political (3) A law or regulation of a State or a factor in making the measurements necessary subdivision of a State may not adopt or political subdivision of a State having the to determine the compliance of automobiles enforce a law or regulation related to direct or substantial effect of regulating or with the fuel economy standards in this part fuel economy standards or average fuel prohibiting tailpipe carbon dioxide emissions from automobiles or automobile fuel is their rate of tailpipe carbon dioxide economy standards for automobiles emissions; economy is a law or regulation related to fuel covered by an average fuel economy (D) Almost all technologically feasible economy standards and expressly preempted reduction of tailpipe emissions of carbon standard under this chapter. under 49 U.S.C. 32919. dioxide is achievable through improving fuel (b) Requirements must be identical. (b) Implied Preemption: economy, thereby reducing both the When a requirement under section (1) A law or regulation of a State or a consumption of fuel and the creation and 32908 of title 49 of the United States political subdivision of a State regulating emission of carbon dioxide; Code is in effect, a State or a political tailpipe carbon dioxide emissions from (E) Accordingly, as a practical matter, subdivision of a State may adopt or automobiles, particularly a law or regulation regulating fuel economy controls the amount enforce a law or regulation on that is not attribute-based and does not of tailpipe emissions of carbon dioxide, and disclosure of fuel economy or fuel separately regulate passenger cars and light regulating the tailpipe emissions of carbon trucks, conflicts with: operating costs for an automobile dioxide controls fuel economy. (A) The fuel economy standards in this (2) As a law or regulation related to fuel covered by section 32908 only if the law part; economy standards, any law or regulation of or regulation is identical to that (B) The judgments made by the agency in a State or a political subdivision of a State requirement. establishing those standards; and regulating or prohibiting tailpipe carbon (c) State and political subdivision (C) The achievement of the objectives of dioxide emissions from automobiles is automobiles. A State or a political the statute (49 U.S.C. Chapter 329) under expressly preempted under 49 U.S.C. 32919. subdivision of a State may prescribe which those standards were established, (3) A law or regulation of a State or a requirements for fuel economy for including objectives relating to reducing fuel political subdivision of a State having the automobiles obtained for its own use. consumption in a manner and to the extent direct or substantial effect of regulating or consistent with manufacturer flexibility, prohibiting tailpipe carbon dioxide emissions Appendix to Part 533 [Designated as consumer choice, and automobile safety. from automobiles or automobile fuel Appendix A to Part 533 and Amended] (2) Any law or regulation of a State or a economy is a law or regulation related to fuel political subdivision of a State regulating or economy standards and expressly preempted * 7. Designate appendix to part 533 as prohibiting tailpipe carbon dioxide emissions under 49 U.S.C. 32919. appendix A to part 533 and in newly from automobiles is impliedly preempted (b) Implied Preemption: redesignated appendix A, remove all under 49 U.S.C. Chapter 329. USCAFederal Case #19-1249Register/Vol. Document84, No. 188/Friday, #1818015 September Filed:27, 2019/Rules 11/25/2019 and Regulations Page 61 of 6151363
(3) A law or regulation of a State or a Issued on September 19, 2019 in Dated: September 19, 2019. political subdivision of a State having the Washington, DC, under authority delegated James C. Owens, direct or substantial effect of regulating or in 49 CFR 1.95 and 501.4 Acting Administrator,National Highway prohibiting tailpipe carbon dioxide emissions Traffic Safety Administration. from automobiles or automobile fuel Dated: September 19, 2019. economy is impliedly preempted under 49 Andrew R. Wheeler, U.S.C. Chapter 329. Administrator,Environmental Protection Agency. [FR Doe. 2019-20672 Filed 9-26-19; 8:45 am] BILLING CODE 4910-59-P