Suit Against Rhode Island Cars Progam Allowed to Proceed

The Providence Journal reports that the federal district court in Rhode Island denied the State's motion to dismiss the auto industry's challenge to Rhode Island's decision to adopt California's limits on greenhouse pollution from new cars and trucks. 

We don't have a copy of the motion to dismiss, but it appears that the State contended in part that the suit is unripe due to uncertainty as to whether the rules will go into effect.  The court responded:   “Any uncertainty regarding the probability that the Rhode Island regulation will be applied to the plaintiffs is outweighed by the hardship that the existence of the regulation already imposes on the plaintiffs. . . To require [the manufacturers] to challenge these regulations only as a defense to an action brought by the government might harm them severely and unnecessarily.” 

The ruling reportedly came just two days after EPA's waiver denial.

Posted by Tim Dowling

Comments

[Larry Fafarman]

Tim Dowling wrote,
--"The Providence Journal reports that the federal district court in Rhode Island denied the State's motion to dismiss the auto industry's challenge to Rhode Island's decision to adopt California's limits on greenhouse pollution from new cars and trucks."--

The California auto emissions standards were supposed to be an all-or-nothing package deal -- the states were not supposed to be allowed to pick and choose which of the California standards they want to adopt.

[Tim Dowling]

Larry -- Warming Law is a legal blawg. When you post, it would be helpful if you would provide some legal support for your views, such as a citation to the relevant statutory text or judicial interpretations, particularly when (as here) your views run contrary to longstanding practices under the Act. What support do you have for the proposition that states must adopt EVERY California emission limit for motor vehicles, or adopt none of them? This is an exceedingly odd, if not downright bizarre, position.

[Larry Fafarman]

Tim Dowling wrote,

--"What support do you have for the proposition that states must adopt EVERY California emission limit for motor vehicles, or adopt none of them?"--

Sorry, I didn't know that you asked me to provide legal support.

My above statement that the California standards are an all-or-nothing package deal is based on the prohibition against creation of a "third" kind of vehicle, i.e., a vehicle neither completely federally-certified nor completely California-certified. This prohibition is discussed in the following excerpt from a court case:

--"In 1977 Congress added § 177 to the Act to permit other states desiring more stringent air quality control measures to "piggyback" on California's exemption by adopting emissions control standards "identical to the California standards for which a waiver has been granted." Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 129(b), 91 Stat. 685, 750 (codified as amended at 42 U.S.C. § 7507). As part of the 1990 amendments to the Clean Air Act -- and out of concern for the potential economic burden on the auto industry -- Congress strengthened the "identicality" provision by adding new language to § 177. The new language specifies that a "piggybacking" state may neither limit the sale of California-certified vehicles nor "take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a 'third vehicle') or otherwise create such a 'third vehicle'." Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 232, 104 Stat. 2399, 2529 (emphasis added) (codified at 42 U.S.C. § 7507)" --
-- from
THE MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE UNITED STATES, INC. and ASSOCIATION OF INTERNATIONAL AUTOMOBILE MANUFACTURERS, INC., Plaintiffs-Appellants , v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and LANGDON MARSH, Commissioner, Defendants-Appellees , and ENVIRONMENTAL DEFENSE FUND, INC., AMERICAN PETROLEUM INSTITUTE and NEW YORK STATE ELECTRIC & GAS CORPORATION, Defendants-Intervenors-Appellees . No. 1543 -- August Term 1994 (Argued May 8, 1995 Decided January 10, 1996) Docket No. 94-9114 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=9491140

BTW I noticed that you are listed as the co-author of an amicus brief.

[TImothy Dowling]

Larry -- Suppose a state were to adopt regs idenitcal to Cal.'s limits on carbon dioxide, but not the full panoply of the approved California auto emission limits. How would that create a "third car" in violation of Section 177. Carmakers could just sell Cal. cars in that state, no?

[Larry Fafarman]

Tim Dowling wrote,
--"Carmakers could just sell Cal. cars in that state, no?"--

Yes, but carmakers could have financial and marketing incentives to sell "third" type vehicles in that state. Suppose a carmaker builds a special car for California with the following features:

(1) To help satisfy California's greenhouse-gas standards, the car improves fuel efficiency by having, say, extra-light body parts and a turbocharged engine of reduced displacement. These are expensive features.

(2) PZEV (Partial Zero Emissions Vehicle) certification in order to help satisfy other Calif. standards. According to the following webpage, this costs the carmaker around $400 extra and the customer is charged $150 extra:

http://www.autobloggreen.com/2007/09/04/can-this-be-true-does-the-clean-air-act-stop-most-of-us-from-bu/

So in the words of Section 177, your state has "the effect of creating" a third vehicle by establishing emissions standards that create financial and marketing incentives to build a "third" type of car for your state, a car with the greenhouse-gas reduction feature and without the PZEV feature.

Section 177 is quite explicit -- states may not "take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a 'third vehicle') or otherwise create such a 'third vehicle'."

[Timothy Dowling]

Larry -- A carmaker's decision to produce a third car does not cause a state to violate the third-car rule in section 177. See MVMA v. NYDEC, 79 F.3d 1298, 1307 ("Plaintiffs are free to sell cars in New York that are absolutely identical in all respects to those certified and sold in California. Any change made in vehicles-bolting rather than welding converters, for example-is the manufacturer's choice. These so-called required modifications really reflect nothing more than manufacturers making an informed decision with respect to one of many options before them.")

[Larry Fafarman]

Tim Dowling wrote,
--"Larry -- A carmaker's decision to produce a third car does not cause a state to violate the third-car rule in section 177. See MVMA v. NYDEC, 79 F.3d 1298, 1307"--

By coincidence, that happens to be the same case that I referenced above.

MVMA v. NYDEC is really special. In MMVA v. NYDEC, New York did not change any of the California auto emissions standards. The problem was that high-sulfur gasoline sold in New York (much higher in sulfur content than the gasoline sold in California) was resulting in frequent replacement of catalytic converters and that the flanged converter design supposedly made replacement easier compared to a welded-on converter. That's ridiculous -- any shop that replaces catalytic converters must have welding equipment because a lot of catalytic converters are welded on. I had a welded-on converter replaced and it took just a few minutes to do the job. Maybe the issue in MVMA v. NYDEC should have been whether New York should require low-sulfur gasoline.

MVMA v. NYDEC said that the meaning of the term "third vehicle" was not completely clear (at least not at that time):

--"Senator Chafee told his colleagues that "in adopting and enforcing California standards, no other State can have the effect of requiring carmakers to produce a vehicle different from the cars that can be sold in California." See 136 Cong. Rec. S16,954 (1990). As explained in a conference report presented by Senator Baucus, however, "determining what is and is not a 'third vehicle' does not require physical identicality of vehicles." Id . at S16,976. And, the clarification of the third vehicle prohibition continues, "the requirement to make small modifications in vehicles in use to assure their continuing compliance with their certified emission limits" does not constitute an undue burden on manufacturers or require the production of a third vehicle." Id --

But we are not necessarily talking here about "small modifications in vehicles in use" -- as I showed above, some of the modifications may require hundreds or thousands of dollars. If states are allowed to pick and choose which California standards to follow, the financial incentives to produce "third vehicles" could be so strong as to amount to a virtual "requirement."

As for that Rhode Island lawsuit, it is pointless. Rhode Island is one of the states that has adopted the California emissions standards package. If California's request for a waiver of federal preemption of greenhouse-gas (GHG) emissions standards is granted, the courts could not tell RI not to enforce the California GHG standards.