ELR Citation: ELR 20469
No(s). 98-1036, 99-2245 (1st Cir.)

The court holds that the Clean Air Act (CAA) §209(a) preempts Massachusetts' zero emissions vehicles (ZEV) regulations for automobile manufacturers. In 1993, the U.S. Environmental Protection Agency (EPA) granted California's ZEV program a CAA §209(b) waiver. Massachusetts then copied the program. In 1996, however, California repealed its ZEV requirements for the model years 1998-2002. Instead, it entered into memoranda of agreements (MOAs) with seven major automakers under which the manufacturers agreed to develop ZEV technology and introduce a limited number of ZEVs into the California market. In return, California would provide infrastructure support. Massachusetts then amended its ZEV program to reflect the automakers' obligations under the California MOAs, but not California's reciprocal obligations.

The court first dismisses the manufacturers' petition to review EPA's September 15, 1999, opinion letter on the matter. The letter stated that the California MOAs should be considered standards and, thus, that the CAA did not preempt Massachusetts' ZEV regulations. However, the letter is an opinion letter containing an advisory opinion that had no independent impact on the parties. The court then holds that because EPA's letter is just an opinion it is not final agency action commanding any particular deference.

The court next holds that Massachusetts' ZEV mandates are "standards" within the meaning of CAA §§209 and 177 rather than "enforcement mechanisms." In contrast to enforcement mechanisms such as testing and reporting requirements, the numerical procedural requirements such as those in the Massachusetts' ZEV mandates must be considered standards relating to the control of emissions. Rather than simply monitoring or enforcing compliance with some distinct numerical emissions standards, the very purpose and effect of the ZEV mandates is to effect a quantitative reduction in emissions. The court then holds that the Massachusetts' ZEV mandates are not identical to California standards. The California MOAs are not standards within the meaning of CAA §177 because they are voluntary contractual agreements rather than legislation or formal administrative regulations. Consequently, Massachusetts' regulations purporting to copy them cannot be "identical to California standards for which a waiver has been granted" as required by §177.

[A prior decision in this litigation is published at 30 ELR 20179.]

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) 727-2200