Ford Motor Co. v. Environmental Protection Agency, 78-1791

• Decision Date: 25 October 1979
• Docket Number: No. 78-1791,78-1791
• Citation: 196 App.D.C. 386,606 F.2d 1293
• Parties: , 196 U.S.App.D.C. 386 FORD MOTOR COMPANY, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Automobile Importers of America, Inc. and State of California, Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1293

606 F.2d 1293

13 ERC 1529, 196 U.S.App.D.C. 386

FORD MOTOR COMPANY, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Automobile Importers of America, Inc. and State of California, Intervenors.

No. 78-1791.

United States Court of Appeals District of Columbia Circuit

Argued March 26, 1979

Decided Aug. 17, 1979

Rehearing Denied Oct. 25, 1979.

John E. Nolan, Jr., Washington, D. C., with whom W. George Grandison and Charles G. Cole, Washington, D. C., and Thomas L. Saybolt, Dearborn, Mich., were on the brief, for petitioner.

James McNab, III, Atty., Environmental Protection Agency, Washington, D. C., a member of the bar of the Supreme Court of California, Pro hac vice, by special leave of court, Bruce L. Bertelsen, Atty., Environmental Protection Agency, Washington, D. C., a member of the bar of the Supreme Court of Michigan, Pro hac vice, by special leave of court, and David E. Dearing, Atty., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D.C., Joan Z. Bernstein, Gen. Counsel, and Gerald K. Gleason, Atty., Environmental Protection Agency, Washington, D.C., and Angus Macbeth, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondent. James W. Moorman and Lloyd S. Guerci, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondent.

Joel S. Moskowitz, Deputy Atty. Gen., of the State of California, Sacramento, Cal., for intervenor State of California.

Milton D. Andrews, Dennis M. Schwentker, and Lance E. Tunick, Washington, D. C., were on the brief for intervenor Automobile Importers of America, Inc.

Before WRIGHT, Chief Judge, and MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Chief Judge:

Almost from its inception the federal program for regulation of motor vehicle emissions has recognized the pressing air quality problems of southern California and provided officials of that state with an opportunity to continue their pioneering efforts to grapple with them. ¹ The key provision in this regard authorizes the Administrator of the Environmental Protection Agency to waive on California's behalf the section of the Clean Air Act that preempts state regulation in the auto emission area. ² After obtaining such a waiver California can enforce within its borders its own pollution standards. Until 1977, a waiver of federal preemption could only be obtained if the relevant California standards were in every respect at least as stringent as the comparable federal ones. ³ The result was that any vehicle that complied with the California standards automatically and by definition met or exceeded the applicable federal standards as well. In 1977, however, Congress determined to give California more leeway to tailor its emission control program to its particular problems. ⁴ As a result, the Clean Air Act was amended to expand the deference which the Administrator is required to give to California's decisions and assessments and, more particularly, to permit a waiver for California standards that are In the aggregate as strict or stricter than federal ones even if some particular state standards are in fact less strict. ⁵

The present petition is one of several challenging the Administrator's June 7, 1978 decision waiving federal preemption for California's most recent emission standards. ⁶ It raises only one question: whether vehicles which conform to those standards but not to the applicable federal ones may be sold outside of California. We conclude that they may not ⁷ a result we believe flows both from the text of the 1977 amendments and from the policies underlying the Clean Air Act. Accordingly, the determination of the Administrator is, in pertinent respects, affirmed.

I. BACKGROUND

A. Prior to 1977

California launched its emission control program in 1964 with the adoption of standards applicable to the 1966 model year. ⁸ By the early 1970s it had set maximum levels for the three major types of pollutants generated by the automobile: hydrocarbons (HC), carbon monoxide (CO), and the various oxides of nitrogen (NO x). ⁹ Congress became active in the emission control area in 1965, when it authorized the Secretary of Health, Education and Welfare to promulgate federal standards for new cars. ¹⁰ Two years later, apparently concerned that auto manufacturers might be subjected to multiple and inconsistent requirements, ¹¹ Congress enacted what is now Section 209(a) of the Clean Air Act. ¹² That section provides:

(a) No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. ( ¹³

Even as it approved this preemption provision, Congress recognized that "compelling and extraordinary circumstances" in California were sufficient "to justify standards on automobile emissions which may, from time to time, need to be more stringent than national standards." ¹⁴ Accordingly, it enacted the original California waiver provision the precursor of what is now Section 209(b) of the Clean Air Act. ¹⁵ Prior to its amendment in 1977 ¹⁶ that section read:

(b) Waiver

The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, unless he finds that such State does not require standards more stringent than applicable Federal standards to meet compelling and extraordinary conditions or that such State standards and accompanying enforcement procedures are not consistent with section 1857f-1(a) of this title. ( ¹⁷

Since California was the only state which had adopted standards other than crankcase emission standards prior to March 30, 1966, it was the only one eligible for the waiver of federal preemption authorized by this section.

In 1970 Congress made further revisions in the Clean Air Act. ¹⁸ It directed the EPA Administrator ¹⁹ to publish national ambient air quality standards, ²⁰ directed states to develop and submit plans for achieving compliance, ²¹ and mandated a 90 percent reduction in HC and CO levels in motor vehicle emissions by 1975 and a similar reduction in NO x levels by 1976. ²² These deadlines were subsequently pushed back on several occasions by both legislative and administrative action. ²³ The preemption and waiver provisions were not substantively altered by the 1970 amendments.

In the years that followed California took advantage of its ability under Section 209(b) to obtain a waiver of federal preemption for state standards "more stringent than applicable Federal standards" and necessary to meet "compelling and extraordinary conditions." A number of manufacturers elected to market automobiles designed to meet the California standards in states other than California. Some sold California cars only in the western states. Others marketed them nationwide. ²⁴ Since the California standards were in all respects at least as strict as the federal ones, California-equipped cars met federal standards as well, and were therefore eligible to receive the federal "certificate of conformity" without which they could not lawfully be introduced into commerce. ²⁵ Their nationwide sale thus posed no problem under the Act.

B. The 1977 amendments

In 1977 Congress undertook further revision of the Clean Air Act. Critical for present purposes was the decision to expand and strengthen the California waiver provision Section 209(b) "to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare." ²⁶ The House Committee recognized "California's longstanding belief that stringent control of oxides of nitrogen emission from motor vehicles may be more essential to public health protection than stringent control of carbon monoxide," ²⁷ and was aware that it might be technologically difficult to meet both the NO x standards California desired and the federal CO standard. Accordingly, Section 209(b) was rewritten to permit California to obtain a waiver of federal preemption so long as it determines that its emission control standards would be, "In the aggregate, at least as protective of public health and welfare as applicable Federal standards." ²⁸ The result was to permit California to address its NO x problem while easing up somewhat on CO requirements.

Congress made it quite clear that it is the state that is charged with making the protectiveness determination. Indeed, the new Section 209(b) provides that the Administrator Shall waive federal preemption unless he finds that California's decision was "arbitrary and capricious," that that state does not need its standards "to meet compelling and extraordinary conditions," or that the standards and accompanying enforcement procedures are not consistent with federal requirements concerning technical feasibility and certification set forth elsewhere in the Act. ²⁹ In short, Congress consciously chose to permit California to blaze its own trail with a minimum of federal oversight. ³⁰

Two other facets of the 1977 amendments bear directly upon the meaning and import of the revised waiver provision. First, because cars meeting future California standards might well fail in some respects to meet comparable federal ones and thus could not receive the certificate of conformity which is a...