FINDINGS AND CONCLUSIONS
336
I.
The State Regulations
336
A.
Implementation of California‘s AB 1493
336
B.
Adoption of Vermont’s GHG Emissions Standards
338
C.
The Global Warming Connection
339
D.
The GHG Regulation Provisions
341
II.
Preemption
343
A.
The Preemption Doctrines Do Not Apply
343
B.
Express Preemption
350
1.
De Facto Fuel Economy Standard
2.
“Related to” Fuel Economy Standard
C.
Field Preemption
354
D.
Conflict Preemption
355
1.
Frustration of Congressional Intent to Maintain Nationwide Fuel Economy Standards
2.
Technological Feasibility and Economic Practicability, Including Restricting Consumer
Choice, Reducing Employment and Decreasing Traffic Safety
a.
History of Technology-forcing Regulations
b.
Austin’s Testimony
c.
Manufacturers’ Testimony
d.
Duleep’s Testimony
e.
Conclusions
(1)
Austin’s baseline assumptions and methodology
(2)
Alternative fuels
(a)
Diesel
(b)
Ethanol
(c)
Hydrogen
(d)
Plug-in hybrids
(3)
Other technologies
(a)
GDI/turbo
(b)
Camless valve actuation
(c)
Rolling resistance improvements
(d)
Reductions in aerodynamic drag
(e)
Continuously variable transmission (“CVT”)
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
(f)
Electronic power steering
(g)
A/C credits
(h)
Credit trading
(i)
Efforts to promote technology generally
(4)
Consumer choice
(5)
Product withdrawal and job loss
(6)
Safety
III.
Foreign Policy Preemption
392
A.
National Foreign Policy on GHG Emissions
392
B.
Zschernig Preemption
395
C.
Garamendi Preemption
395
CONCLUSION
397
ORDER
399
(Count IV); violation of the dormant Commerce Clause
(Count V); and violation of the Sherman Act (Count VI).
ant.
erspoon, No. 1:04-cv-06663-REC-LJO (E.D.
Cal. filed Dec. 7, 2004) (“Central Valley Chrys-
Natural Resources Defense Council, Environ-
mental Defense, and Vermont Public Interest Re-
415 F.3d 50 (D.C.Cir.2005), rev’d 549 U.S. 497, 127
S.Ct. 1438, 167 L.Ed.2d 248 (2007). The requests were
denied, on May 3, 2006, and February 15, 2007.
constitutionally and prudentially ripe, given that the Ver-
mont regulation had been formally enacted, those affected
by the regulation had to begin now to comply with it, the
for partial summary judgment on the ground that the regu-
lations are preempted by EPCA. Although Defendants
trial on the remaining*302 claims. The trial was conduct–
ed over sixteen days in April and May, 2007. This opinion
Clean Air Act, 42 U.S.C. §§ 7401–7671q, and the Energy
Policy and Conservation Act, 49 U.S.C. §§ 32901–32919.
hicle emission control standards, while Section 209(b)
requires EPA to waive preemption for a California–
adopted standard that meets certain conditions. 42 U.S.C.
§ 7543(a), (b). Other states may adopt a California stand-
standards applicable to large-volume motor vehicle manu-
facturers beginning in model year 2009. California ap–
plied to EPA for a waiver of federal preemption under the
Section 502 of EPCA directs the Department of Transpor-
among other contentions.
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
compromise “between the states, which wanted to pre-
serve their traditional role in regulating motor vehicles,
and the manufacturers, which wanted to avoid the eco-
nomic disruption latent in having to meet fifty-one sepa-
1966. Pub.L. No. 90-148, 81 Stat. at 501 (codi-
fied as amended at 42 U.S.C. § 7543(b)). Cali-
1676 (1970). Section 202(a)(2) of the amended statute
required EPA to take technical and economic factors into
(codified as amended at 42 U.S.C. § 7521(a)(2)).
FN8. In this statute “light–duty vehicle” is essen-
tially synonymous with “passenger car.” Natural
Resources Defense Council, Inc. v. U.S. EPA,
tal Policy,” 22 Stanford Envtl. L.J. 295, 345-46 (2003);
Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 492, 121
S.Ct. 903, 149 L.Ed.2d 1 (2001) (Breyer, J., concurring)
(catalytic converter technology helped achieve substantial
reduction in emissions without predicted economic catas-
trophe).
The 1977 Amendments to the CAA, “lengthy, detailed,
technical, complex, and comprehensive,” Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 848, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), includ-
MVMA III, 17 F.3d at 525.
286 (1992). Title II of its eleven titles imposed new con-
trols on motor vehicles. See Secs. 201-35, 104 Stat. at
unless it determined that such standards were not neces-
sary, technically feasible, or cost-effective. See id., 104
Stat. at 2476-78.FN9 The 1990 CAA amendments aimed to
clean up gasoline and diesel fuel by setting requirements
for reduced fuel volatility, fuel reformulation, oxygenated
Tier II standards effective April 10, 2000. See
Final Rule, Control of Air Pollution from New
Motor Vehicles: Tier II Motor Vehicle Emis-
sions Standards & Gasoline Sulfur Control Re-
quirements, 65 Fed.Reg. 6698 (Feb. 10, 2000).
Currently, Section 202 of the CAA authorizes the EPA
Administrator to establish “standards applicable to the
emission of any air pollutant from any class or classes of
new motor vehicles or new motor vehicle engines, which
in his judgment cause, or contribute to air pollution which
may reasonably be anticipated to endanger public health
or welfare.” 42 U.S.C. § 7521(a)(1). Any such regulation,
which currently applies to emissions of hydrocarbons,
carbon monoxide, oxides of nitrogen and particulate mat-
ter, may take effect only after any necessary period “to
permit the development and application of the requisite
technology, giving appropriate consideration to the cost of
compliance.” Id. § 7521(a)(2).
Section 209(a) of the CAA prohibits any state or political
subdivision from adopting or attempting to enforce “any
standard relating to the control of emissions from new
motor vehicles or new motor vehicle engines.” 42 U.S.C.
§ 7543(a). Section 209(b) requires EPA to waive federal
preemption for California, if California has determined
that its state standards “will be, in the aggregate, at least
as protective of public health and welfare as applicable
Federal standards,” unless EPA finds that California’s
determination is arbitrary and capricious, the state doesn’t
need the standards to meet compelling and extraordinary
conditions, or the standards are not consistent with §
7521(a). Id. § 7543(b). Section 177 allows a state to adopt
and enforce standards identical to California standards for
which a waiver has been granted, as long as the standards
are adopted at least two years before the commencement
of the model year to which they apply. Id. § 7507.
II. Environmental Policy and Conservation Act
ed “provid[ing] for improved energy efficiency of motor
vehicles.” Pub.L. No. 94-163, § 2, 89 Stat. 87, 874 (1975)
(codified at 42 U.S.C. § 6201). EPCA’s Title III amended
the Motor Vehicle Information and Cost Savings Act by
adding a new Title V, *306 devoted to improving automo-
Title V set mandatory average fuel economy performance
standards for passenger automobiles, beginning in model
year 1978 at eighteen miles per gallon (mpg) and increas-
ing to 27.5 mpg by model year 1985. This had the effect
of requiring manufacturers to improve the fuel economy
of their fleets by fifty percent by model year 1980, and by
one hundred percent by model year 1985. General Mo-
tors, 898 F.2d at 167. Although Congress set the standard
for passenger automobiles at 27.5 mpg by 1985, EPCA
authorizes the Secretary of Transportation to set standards
at the maximum feasible level for light duty highway ve-
hicles for each model year, and for passenger automobiles
after model year 1985. See S.Rep. No. 94-516, at 119,
153-54 (1975) (Conf.Rep.), reprinted in 1975
U.S.C.C.A.N.1956, 1959-60, 1994-95. The Secretary of
Transportation has delegated his EPCA authority to the
National Highway Traffic Safety Administration
(“NHTSA”). 49 C.F.R. § 1.50(f).
The statute thus provided for fleet-wide average fuel
economy standards that would apply to all passenger au-
tomobiles or light-duty trucks sold by a manufacturer in a
given year, known as “corporate average fuel economy,”
or “CAFE” standards. Pub.L. No. 94-163, Sec. 301, §
502, 89 Stat. at 902. Manufacturers that fail to comply
may be assessed civil penalties. Id. § 508.
In determining maximum feasible average fuel economy,
NHTSA was directed to consider: “(1) technological fea-
sibility; (2) economic practicability; (3) the effect of other
Federal motor vehicle standards on fuel economy; and (4)
the need of the Nation to conserve energy.” Id. § 502; see
also S.Rep. No. 94-516 at 154, 1975 U.S.C.C.A.N. at
1995. It did not prescribe the formula for determining
CAFE standards but “gave [NHTSA] broad guidelines
within which to exercise its discretion.” Competitive En–
As enacted, EPCA included a preemption clause, §
509(a), which provided that “[w]henever an average fuel
economy standard established under this part is in effect,
(f)
Electronic power steering
(g)
A/C credits
(h)
Credit trading
(i)
Efforts to promote technology generally
(4)
Consumer choice
(5)
Product withdrawal and job loss
(6)
Safety
III.
Foreign Policy Preemption
392
A.
National Foreign Policy on GHG Emissions
392
B.
Zschernig Preemption
395
C.
Garamendi Preemption
395
CONCLUSION
397
ORDER
399
(Count IV); violation of the dormant Commerce Clause
(Count V); and violation of the Sherman Act (Count VI).
ant.
erspoon, No. 1:04-cv-06663-REC-LJO (E.D.
Cal. filed Dec. 7, 2004) (“Central Valley Chrys-
Natural Resources Defense Council, Environ-
mental Defense, and Vermont Public Interest Re-
415 F.3d 50 (D.C.Cir.2005), rev’d 549 U.S. 497, 127
S.Ct. 1438, 167 L.Ed.2d 248 (2007). The requests were
denied, on May 3, 2006, and February 15, 2007.
constitutionally and prudentially ripe, given that the Ver-
mont regulation had been formally enacted, those affected
by the regulation had to begin now to comply with it, the
for partial summary judgment on the ground that the regu-
lations are preempted by EPCA. Although Defendants
trial on the remaining*302 claims. The trial was conduct–
ed over sixteen days in April and May, 2007. This opinion
Clean Air Act, 42 U.S.C. §§ 7401–7671q, and the Energy
Policy and Conservation Act, 49 U.S.C. §§ 32901–32919.
hicle emission control standards, while Section 209(b)
requires EPA to waive preemption for a California–
adopted standard that meets certain conditions. 42 U.S.C.
§ 7543(a), (b). Other states may adopt a California stand-
standards applicable to large-volume motor vehicle manu-
facturers beginning in model year 2009. California ap–
plied to EPA for a waiver of federal preemption under the
Section 502 of EPCA directs the Department of Transpor-
among other contentions.
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
compromise “between the states, which wanted to pre-
serve their traditional role in regulating motor vehicles,
and the manufacturers, which wanted to avoid the eco-
nomic disruption latent in having to meet fifty-one sepa-
1966. Pub.L. No. 90-148, 81 Stat. at 501 (codi-
fied as amended at 42 U.S.C. § 7543(b)). Cali-
1676 (1970). Section 202(a)(2) of the amended statute
required EPA to take technical and economic factors into
(codified as amended at 42 U.S.C. § 7521(a)(2)).
FN8. In this statute “light–duty vehicle” is essen-
tially synonymous with “passenger car.” Natural
Resources Defense Council, Inc. v. U.S. EPA,
tal Policy,” 22 Stanford Envtl. L.J. 295, 345-46 (2003);
Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 492, 121
S.Ct. 903, 149 L.Ed.2d 1 (2001) (Breyer, J., concurring)
(catalytic converter technology helped achieve substantial
reduction in emissions without predicted economic catas-
trophe).
The 1977 Amendments to the CAA, “lengthy, detailed,
technical, complex, and comprehensive,” Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 848, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), includ-
MVMA III, 17 F.3d at 525.
286 (1992). Title II of its eleven titles imposed new con-
trols on motor vehicles. See Secs. 201-35, 104 Stat. at
unless it determined that such standards were not neces-
sary, technically feasible, or cost-effective. See id., 104
Stat. at 2476-78.FN9 The 1990 CAA amendments aimed to
clean up gasoline and diesel fuel by setting requirements
for reduced fuel volatility, fuel reformulation, oxygenated
Tier II standards effective April 10, 2000. See
Final Rule, Control of Air Pollution from New
Motor Vehicles: Tier II Motor Vehicle Emis-
sions Standards & Gasoline Sulfur Control Re-
quirements, 65 Fed.Reg. 6698 (Feb. 10, 2000).
Currently, Section 202 of the CAA authorizes the EPA
Administrator to establish “standards applicable to the
emission of any air pollutant from any class or classes of
new motor vehicles or new motor vehicle engines, which
in his judgment cause, or contribute to air pollution which
may reasonably be anticipated to endanger public health
or welfare.” 42 U.S.C. § 7521(a)(1). Any such regulation,
which currently applies to emissions of hydrocarbons,
carbon monoxide, oxides of nitrogen and particulate mat-
ter, may take effect only after any necessary period “to
permit the development and application of the requisite
technology, giving appropriate consideration to the cost of
compliance.” Id. § 7521(a)(2).
Section 209(a) of the CAA prohibits any state or political
subdivision from adopting or attempting to enforce “any
standard relating to the control of emissions from new
motor vehicles or new motor vehicle engines.” 42 U.S.C.
§ 7543(a). Section 209(b) requires EPA to waive federal
preemption for California, if California has determined
that its state standards “will be, in the aggregate, at least
as protective of public health and welfare as applicable
Federal standards,” unless EPA finds that California’s
determination is arbitrary and capricious, the state doesn’t
need the standards to meet compelling and extraordinary
conditions, or the standards are not consistent with §
7521(a). Id. § 7543(b). Section 177 allows a state to adopt
and enforce standards identical to California standards for
which a waiver has been granted, as long as the standards
are adopted at least two years before the commencement
of the model year to which they apply. Id. § 7507.
II. Environmental Policy and Conservation Act
ed “provid[ing] for improved energy efficiency of motor
vehicles.” Pub.L. No. 94-163, § 2, 89 Stat. 87, 874 (1975)
(codified at 42 U.S.C. § 6201). EPCA’s Title III amended
the Motor Vehicle Information and Cost Savings Act by
adding a new Title V, *306 devoted to improving automo-
Title V set mandatory average fuel economy performance
standards for passenger automobiles, beginning in model
year 1978 at eighteen miles per gallon (mpg) and increas-
ing to 27.5 mpg by model year 1985. This had the effect
of requiring manufacturers to improve the fuel economy
of their fleets by fifty percent by model year 1980, and by
one hundred percent by model year 1985. General Mo-
tors, 898 F.2d at 167. Although Congress set the standard
for passenger automobiles at 27.5 mpg by 1985, EPCA
authorizes the Secretary of Transportation to set standards
at the maximum feasible level for light duty highway ve-
hicles for each model year, and for passenger automobiles
after model year 1985. See S.Rep. No. 94-516, at 119,
153-54 (1975) (Conf.Rep.), reprinted in 1975
U.S.C.C.A.N.1956, 1959-60, 1994-95. The Secretary of
Transportation has delegated his EPCA authority to the
National Highway Traffic Safety Administration
(“NHTSA”). 49 C.F.R. § 1.50(f).
The statute thus provided for fleet-wide average fuel
economy standards that would apply to all passenger au-
tomobiles or light-duty trucks sold by a manufacturer in a
given year, known as “corporate average fuel economy,”
or “CAFE” standards. Pub.L. No. 94-163, Sec. 301, §
502, 89 Stat. at 902. Manufacturers that fail to comply
may be assessed civil penalties. Id. § 508.
In determining maximum feasible average fuel economy,
NHTSA was directed to consider: “(1) technological fea-
sibility; (2) economic practicability; (3) the effect of other
Federal motor vehicle standards on fuel economy; and (4)
the need of the Nation to conserve energy.” Id. § 502; see
also S.Rep. No. 94-516 at 154, 1975 U.S.C.C.A.N. at
1995. It did not prescribe the formula for determining
CAFE standards but “gave [NHTSA] broad guidelines
within which to exercise its discretion.” Competitive En–
As enacted, EPCA included a preemption clause, §
509(a), which provided that “[w]henever an average fuel
economy standard established under this part is in effect,