ELR Citation: ELR 20552
No(s). s. 93-7938, -7974 (2d Cir. Feb 9, 1994)

The court upholds New York's adoption of California's rules regulating automobile tailpipe emissions. Under §177 of the Clean Air Act (CAA), states are permitted to adopt California's automobile emissions standards if the state's standards are identical to the California standards for which a waiver from federal preemption has been granted, pursuant to CAA §209(b) by the U.S. Environmental Protection Agency (EPA), for such model year. In order to combat its serious and persistent air pollution problems, which are due significantly to automobile emissions, and to avoid the imposition of mandatory sanctions by EPA, pursuant to §177 New York adopted California's low emission vehicle (LEV) program on May 28, 1992. New York did not adopt California's clean fuels program.

The court holds that New York's LEV regulations do not violate §177 even though New York did not adopt California's clean fuels regulations and adopted the regulations before EPA granted California a §209(b) waiver from the Act's federal emission requirements. Although a logical reading of §177 might suggest that New York may adopt only those standards that California has included in its waiver application to EPA, the plain language of §177 dictates not only that New York need not adopt California's clean fuels program, but that New York may not adopt the California clean fuels program. The §209 waiver provision only applies to automobile emissions standards, such that California could not have obtained a §209(b) waiver for its clean fuels plan. To hold otherwise would undermine Congress' scheme for treating emissions and fuel standards separately.

The court holds that New York's LEV regulations do not violate §177 even though New York adopted its regulations more than six months before EPA granted California a §209(b) waiver from the Act's federal emission requirements. Granting the waiver is a precondition to enforcement, not adoption, of the regulations. Applying the term "model-year" on an industrywide basis, however, The court holds that New York may not enforce the regulations against any model year 1995 cars. Under the CAA, the regulations may not be enforced for two years from the date of adoption, here May 28, 1992, and model year 1995 commences before May 28, 1994.

The court holds that New York's adoption of California's quotas for zero emission vehicles (ZEV) does not impermissibly limit the number of non-ZEV California cars sold by manufacturers. Under the current ZEV plan, manufacturers may sell any number of California-certified vehicles other than ZEVs as long as they also sell the specified percentage of ZEVs. Therefore, New York has not acted so as to limit, either directly or indirectly, the number of non-ZEV California-certified cars the manufacturer will sell. Although the ZEV quota may affect the sale of non-ZEV California-certified cars, to find that New York wrongly mandated a ZEV sales percentage identical to California's mandate would skew Congress' intent, which was to reinforce the identicality-of-standards requirement. Finally, the court holds that New York's adoption of California's ZEV quota does not violate §177's bar to state action or regulation that causes, or has the effect of causing, the production of a "third vehicle"—one that has requirements different from the federal and California requirements. New York has adopted California's standard precisely and no party contends that New York is administering this standard or remedying noncompliance in a manner different than California. Moreover, without further facts to substantiate the manufacturers' claim that New York's colder climate requires alteration of emission control features that effectively requires the creation of a third vehicle, granting summary judgment for manufacturers on their third-vehicle claim would be inappropriate.

[The district court's decision is published at 23 ELR 20879. Its amended decision is published at 24 ELR 20311.]

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

Counsel for Defendants
Joan L. Matthews, Ass't Attorney General
Attorney General's Office
New York State Department of Law
The Capitol, Albany NY 12224
(518) 474-7124