978-1285770178 Case Printout Case CPC-25-07 Part 9

Id. at 28:9-33:8. Based on Austin’s cost estimates, Har-

bour predicted that the percent decrease in sales in the

bour also assumed that the remaining automakers would

course, like Harrison’s, the value of Harbour’s analysis is

lerChrysler announced in February that it will reduce its

tries such as suppliers. See PX 1000.

number of jobs that would be eliminated at OEMs under

any of Harbour‘s predictions. See PX 1000 (predicting just

7,000 direct jobs lost, assuming that inputs provided by

Austin are correct). Overall, Plaintiffs have failed to prove

creases in new vehicle prices, scrappage rates will de-

average. Id. at 122:10-124:1.FN98 *390 Since vehicles

LDT2 fleets were identical. Citations above are

Harrison also testified about the “rebound effect,” which

is the change in vehicle miles traveled due to a percentage

change in fuel economy. VMT typically increases when

fuel economy improves, because the improvement in fuel

economy lowers the cost of travel.FN99 Tr. vol. 5-B, 7:19–

there would be an increasing rebound effect over time in

Vermont resulting from the regulation. Id. at 17:17-24;

23:11-14.

FN99. Harrison calculated that for Vermont, a

vided to him by Austin, including his scrappage and VMT

more expensive and to make driving less expensive.

rates to increase, and VMT to increase, are the basis for a

statistical analysis by Dr. M. Laurentius Marais, Plaintiffs’

applied mathematician in private practice as a

consultant with William E. Wecker Associates,

Inc., where he is a vice president and principal

consultant. Tr. vol. 8-B, 57:14-23 (Marais, Apr.

*392 Greene concluded that the fuel economy levels that

any flaw in technology or design likely to be used to re-

duce GHG emissions. It also appears likely that any de-

crease in safety will be relatively minor, and will be out-

reached based on the testimony of the parties’ expert wit-

nesses. Plaintiffs have not carried their burden to show

that compliance with the regulation is not feasible; nor

regulation “intrude [s] upon the foreign policy of the

United States and the foreign affairs prerogatives of the

President and Congress of the United States.” ‘302 Compl.

In American Insurance Ass‘n v. Garamendi, the United

States Supreme Court articulated a rule of executive

preemption, based upon the premises that “at some point

nig v. Miller, 389 U.S. 429, 450, 88 S.Ct. 664, 19 L.Ed.2d

683 (1968); accord Garamendi, 539 U.S. at 419, 123

The plaintiffs make two arguments: one, that Vermont‘s

regulation is preempted in the absence of any conflict

with national foreign policy, by virtue of its intrusion into

For at least twenty years, Congress has recognized that

GHG emissions may be contributing to global warming

FCCC”), to consider international responses to global

warming. Member nations of the UNFCCC negotiated the

Kyoto Protocol, adopted in Kyoto, Japan on December

The United States has not ratified the Protocol. In 1997

the Senate adopted the Byrd-Hagel Resolution, recording

international policy on climate change after the expiration

of the Kyoto Protocol in 2012. The United States remains

On June 7, 2007, at the annual G-8 Summit, the United

States agreed to a summit declaration entitled “Growth

and Responsibility in the World Economy.” G-8, Summit

order to stabilize greenhouse gas concentrations at a level

that would prevent dangerous anthropogenic interference

with the climate system.” Id. ¶ 49. “As climate change is a

global problem, the response to it needs to be internation-

2012 agreement … that should include all major emitters.”

Id. ¶ 52.

Article 12 of the UNFCCC requires parties to report on

the United States is pursuing bilateral and multilateral

to the overall GHG intensity reduction goal. These non-

federal climate change activities can be an important fac-

tor in the success of emission reduction policies.” Id. at

quality goals.” Id. at 51. A table of “State Actions on

Climate Change” accompanying the narrative specifically

includes California’s vehicle GHG emission standards,

adopted by eleven states including Vermont. Id. at 52, tbl.

expressed similar approval for the standards:

California has led the nation and the world in setting

stringent emissions standards for motor vehicles. The

a foundation funded with ten billion deutsch marks to be

used to compensate Holocaust victims. In return the gov-

and World War II.” Id. at 406, 123 S.Ct. 2374. The Ger–

man Foundation agreement served as the model for simi-

lar agreements with Austria and France.

commissioner announced that he would enforce HVIRA

to its fullest extent. Id. at 411-12, 123 S.Ct. 2374. The

insurance companies filed suit, challenging HVIRA’s con-

stitutionality.

many, Austria and France. Id. at 413, 123 S.Ct. 2374. The

Court found evidence of a clear conflict between the two

policies: a consistent government foreign policy to en-

law and an express national foreign policy. Id. at 420,

425, 123 S.Ct. 2374. The ‘302 plaintiffs contend that there

regulation of domestic GHG emissions. To the contrary.

The United States has praised such efforts to the interna-

exempted developing countries, and was concerned that

such a plan would unfairly tax the United States econo-

my; it is not evidence of an express policy against domes-

tic regulation of greenhouse gases.

coordinate the formulation of United States foreign policy

concerning global climate change. 127 S.Ct. at 1463; see

also Global Climate Protection Act of 1987, § 1103(c),

*397 Pub.L. 100-204, 101 Stat. 1331, 1407. As noted

mont’s GHG regulation represents an insufferable intru-

sion upon the field of foreign affairs, or that it constitutes

a conflict with a national foreign policy. Accordingly,

The Supreme Court described human-generated contribu-

tions to global warming, including carbon dioxide emis-

authority to set fuel economy standards overlap but do not

conflict, and that the agencies have the duty to work to-

from motor vehicles in its effort to contribute to the fight

against global warming. Section 209(b) permits California

to adopt its own emissions standards, and EPA to grant

of federal preemption of a state statute does not arise. If

EPA-approved California GHG regulations do not enjoy

the status of other motor vehicle standards of the Gov-

CAA, leaving open only the questions whether EPCA

preempted the GHG regulations, or the regulations were

preempted as an intrusion upon United States‘ foreign

technological choices. These bodies have greater access to

experts and their expertise to assist them in evaluating

scientific theories, models and predictions. More im-

considerations governing constitutional construction are

to be substantially those that underlie legislation, then

gress. Many of the technical, political and even moral

issues raised by this case are not, and should not be, re-

solved here, but may remain the subject of debate and

with which it conflicts (conflict preemption). Congres-

sional intent is the heart of preemption analysis, and the

burden of proof rests on the parties asserting that state

standards of the Government,” under Section 502 of EP-

CA. Such a finding is entirely consistent with the lan-

guage of the statutes, the House and Senate reports that

field and conflict preemption to the regulations, finding in

each case that the plaintiffs failed to prove the regulations

were preempted. Congress did not intend that regulations

er federal agencies and take into consideration other fed-

eral standards which may affect fuel economy.

gress.

introduction of catalytic converters in the 1970s is just

one example. In each *399 case the industry responded

by as much as four percent per annum, if adopted, provide

substantial challenges to the industry. At the same time,

of utilizing hybrid technology to dramatically improve

fuel economy. Clean diesel technology is being offered in

a growing number of vehicles. Dramatic improvements to

powertrain technologies are under study and may be

the industry, once put in gear, responds admirably to most

technological challenges. In light of the public statements

of industry representatives, history of compliance with

fendants on Count I (express and implied preemption un-

der the federal fuel economy laws) and Count IV

(preemption under the Clean Air Act) is dismissed as

moot.