ELR Citation: ELR 20378
No(s). 98-1036 (1st Cir. Dec 29, 1998)

The court refers to the U.S. Environmental Protection Agency (EPA) several issues on whether Clean Air Act (CAA) §209 preempts a Massachusetts regulation requiring automakers to manufacture a certain number of zero emission electric vehicles (ZEVs) for sale in Massachusetts before the 2003 model year. In 1996, California amended its low emission vehicle (LEV) program by eliminating the ZEV sales quotas for automakers before model year 2002. However, the state then entered private memoranda of agreements (MOAs) with automakers under which the automakers agreed to supply a certain number of ZEVs to California markets for the 1998-2000 model years. Massachusetts, which previously had copied California's LEV program under CAA §177, amended the ZEV portion of its LEV program to duplicate certain portions of the MOAs.

The court first holds that it will refer the question of whether the ZEV mandate is a standard to EPA for its consideration. The court agrees with the district court that Massachusetts' ZEV mandate adopts or attempts to enforce an emissions standard and, thus, is presumptively preempted by CAA §209(a). Although the court is not convinced that CAA §177's identicality requirement is inapplicable to enforcement procedures, it does find that such an interpretation of the CAA's provisions would be reasonable. The fact that CAA §209(a) presumptively preempts both standards and enforcement procedures does not compel the conclusion that §177's identicality requirement is extensive with §209's scope. To the contrary, CAA §177 could be read to protect from preemption both standards and enforcement procedures only when the standards (independently of the enforcement procedures) are identical to California standards. Therefore, the court refers this issue to EPA for its consideration. The matter is plainly within EPA's primary jurisdiction, and its resolution could clearly benefit from a deep familiarity with the CAA and the public policy considerations that underlie these statutory provisions.

The court next holds that it will refer to EPA the question of whether Massachusetts' ZEV mandate is identical to a California standard for which a waiver has been granted for the model years in question. There is a vital need for a uniform answer to whether the MOA approach to the control of emissions is subject to CAA §209(a) preemption, and, thus, whether other states can piggyback onto the MOAs. Only EPA and the U.S. Supreme Court can provide a nationwide answer to this question. In addition, what constitutes a standard for purposes of CAA §209(a) preemption lies at the heart of EPA's mandate to regulate vehicle emissions across the nation. Moreover, it would be preferable to have EPA, the agency entrusted with interpreting and enforcing the federal government's environmental policy, reach its own conclusions.

[Prior decisions in this litigation are published at 25 ELR 20080 and 28 ELR 20210.]

Counsel for Plaintiffs
Edward W. Warren
Kirkland & Ellis
655 15th St. NW, Ste. 1200, Washington DC 20005
(202) 879-5000

Counsel for Defendant
William L. Pardee, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-9173

Before Cyr and Stahl, JJ.