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Id. at 28:9-33:8. Based on Austin's cost estimates, Har-
bour predicted that the percent decrease in sales in the
tries such as suppliers. See PX 1000.
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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.
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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.
