ELR Citation: ELR 20645
No(s). 92-CV-869 (N.D.N.Y. Oct 24, 1994)

The court holds that New York's adoption of the California low emission vehicle (LEV) program without adoption of California's clean fuels program does not violate Clean Air Act §177's prohibition against state programs that require production of a "third vehicle." Plaintiffs alleged that New York's failure to adopt California's clean fuels program when it adopted California's LEV plan will require automakers to redesign their California LEVs' exhaust emission systems because high- sulfur federal gasoline is used in New York. Plaintiffs further contended that this redesigned vehicle would constitute an impermissibly required third vehicle.

The court first holds that having adopted the California standards identically, New York's failure to adopt the clean fuels program cannot, standing alone, be characterized as an act forcing the creation of a third vehicle. Because New York regulations provide that motor vehicles will be certified under procedures identical to California, New York's regulations do not deprive manufacturers of the ability to certify on California gasoline the vehicles that they sell in New York. Currently any vehicle certified in California can properly be certified and sold in New York, such that adoption of the plan will not require automakers to redesign their California LEVs' exhaust emission systems to accommodate use of high-sulfur federal fuel in New York. The court holds unripe plaintiffs' claims that New York's adoption of the LEV standards automatically forces New York to adopt stricter in-use recall and inspection and maintenance (I/M) programs that might cause vehicles using high-sulfur fuel to fail the future New York regulations, which, plaintiffs claimed, would effectively create the need for an impermissible third vehicle. Although New York may adopt a stricter I/M or in-use recall program, neither program yet exists and the court cannot review nonexistent regulatory programs. The court next rejects plaintiffs' argument that the impact of high-sulfur federal fuel on catalytic converters will require design changes to the California LEVs' emission systems to accommodate such fuel and that such changes constitute a third vehicle. The changes of which plaintiffs complain they will have to undertake are not required by New York's §177 adoption of California's LEV program, and plaintiffs failed to show that New York's §177 adoption will cause them to make alterations that constitute a third vehicle required by New York. Any modifications the manufacturer's adopt will be on their own initiative, not because of requirements imposed by New York. Because New York has neither expressly nor de facto required the manufacturers to make these alterations, New York cannot be deemed to have impermissibly acted so as to have required creation of a third vehicle. Finally, the court notes that plaintiffs have raised questions of fact that stem only from the effects of long-term use of high sulfur fuels on catalytic converters. The court holds that, standing alone, any alterations automakers make in their vehicles because of the distinction between federal and California gas are, as a matter of law, not alterations that can be fairly characterized as creating a third vehicle impermissibly required by an act of New York State. New York's LEV adoption is properly viewed standing alone, separate from California's fuel exemption.

[Previous decisions in this action are published at 23 ELR 20879, and 24 ELR 20311 and 20552.]

Counsel for Plaintiffs
Daniel F. Attridge, Gary E. Marchant
Kirkland & Ellis
655 15th St. NW, Ste. 1200, Washington DC 20005
(202) 879-5000

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