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Larry Fafarman

--". . . readers might be interested to note that the Riegel case is emerging not as an isolated argument, but part of a broader rise in the Court's interest in preemption cases. Last week, the Court anounced that it would hear a pair of industry-based appeals seeking to preempt state-based litigation. "--


I don't see how those other federal preemption cases apply to auto emissions standards. Federal law expressly provides for general federal preemption of auto emissions standards and also has rules for allowing California to adopt different standards. Are any express federal preemption laws involved in those other cases?

Timothy Dowling

"Are any express federal preemption laws involved in those other cases?"

Yes. The standards the Supreme Court applies in interpretating the express preemption provision in Riegel could affect how lower courts read and apply similar provisions in other laws.

Larry Fafarman

--"The standards the Supreme Court applies in interpretating the express preemption provision in Riegel could affect how lower courts read and apply similar provisions in other laws."--

I read one of the Riegel briefs and I don't see how a Supreme Court decision in Riegel could affect interpretation of federal auto emissions laws. How, for example, could California's lawsuit over the EPA's denial of a waiver of federal preemption of motor vehicles' greenhouse gas emissions standards be affected by a decision in Riegel? The law looks quite clear to me -- there is general federal preemption of emissions standards for new vehicles, Massachusetts v. EPA gave the EPA the authority to regulate greenhouse gas emissions standards, Congress recently passed its own standards for vehicular greenhouse gas control and fuel efficiency, California must get an EPA waiver of federal preemption in order to have standards different from the federal standards, and states other than California cannot make their own waiver requests but can only adopt the California auto emissions standards package.

Timothy Dowling

Larry -- You're mixing apples and oranges. The argument isn't that Riegel would affect California's challenge to EPA's waiver denial. Rather, Riegel could affect industry's legal challenges to various state auto emission limits, which are based on the contention that the federal energy law preempts those state laws..

California's challenge to the waiver denial is not a "preemption challenge." It involves a preemption provision, of course, but the legal issue is whether EPA properly denied the waiver. A "preemption challenge" is a legal challenge to a state law (typically filed by the regulated community, not the State itself!) based on the argument that federal law preempts those state laws.

Larry Fafarman

--"Larry -- You're mixing apples and oranges. The argument isn't that Riegel would affect California's challenge to EPA's waiver denial. Rather, Riegel could affect industry's legal challenges to various state auto emission limits, which are based on the contention that the federal energy law preempts those state laws.."--

So what I think you are saying is that California's greenhouse-gas waiver request was expressed not in terms of emissions levels but in terms of fuel efficiency and that that is arguably a violation of federal preemption of fuel efficiency standards. That issue does affect California's waiver request and the auto industry has raised that issue.

Also, California might not be able to avoid the issue of federal preemption of fuel efficiency standards by expressing the waiver request in terms of greenhouse-gas emissions levels measured in standard EPA emissions tests, because the fuel efficiency pre-emption law covers state laws & regulations "related" to fuel economy. 49 USC §32919(a) says --

--"(a) General. - When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter. "--
-- from http://uscode.house.gov/download/pls/49C329.txt

Also, this is a conflict between two different federal preemption laws -- i.e., waivers of preemption are available for emissions standards but not fuel efficiency standards -- and that is not an issue in Riegel. I assert that according to the following reasoning of the Supreme Court, it can be argued that the lack of a waiver provision for fuel efficiency preemption does not implicitly repeal the waiver provision for emissions standards preemption in regard to emissions standards that are closely related to fuel efficiency --

--"The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment. "--
-- from POSADAS v. NATIONAL CITY BANK OF NEW YORK, 296 U.S. 497 (1936)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=296&invol=497&friend=nytimes

I assert that Congress showed no "clear and manifest " intention to in effect repeal the provision for California waivers of federal preemption of emissions standards in regard to emissions standards that are closely related to fuel efficiency.

Anyway, I am surprised that high fuel costs are not already causing a shift towards consumer preference for high-mileage vehicles.

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