Engine Mfrs. Assn v. Scaqmd

• Decision Date: 20 August 2007
• Docket Number: No. 05-56654.,05-56654.
• Citation: 498 F.3d 1031
• Parties: ENGINE MANUFACTURERS ASSOCIATION, Plaintiff-Appellant, v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, (SCAQMD); William A. Burke, SCAQMD Board Chairman; Norma J. Glover, SCAQMD Vice-Chairman; Michael D. Antonovich, SCAQMD Board Member; Hal Bernson, SCAQMD Board Member; Jane W. Carney, SCAQMD Board Member; Cynthia P. Coad, SCAQMD Board Member; Beatrice J.S. Lapistokirtley, SCAQMD Board Member; Ronald O. Loveridge, SCAQMD Board Member; Jon D. Mikels, SCAQMD Board Member; Leonard Paulitz, SCAQMD Board Member; Cynthia Verdugo-Peralta, SCAQMD Board Member; S. Roy Wilson, SCAQMD Board Member; Barry R. Wallerstein, SCAQMD Executive Officer; Defendants-Appellees, Natural Resources Defense Council; Coalition for Clean Air, Inc.; Communities for a Better Environment; Planning and Conservation League; Sierra Club, Defendants-Intervenors-Appellees, v. Western States Petroleum Association, Plaintiff-Intervenor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

498 F.3d 1031

ENGINE MANUFACTURERS ASSOCIATION, Plaintiff-Appellant, v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, (SCAQMD); William A. Burke, SCAQMD Board Chairman; Norma J. Glover, SCAQMD Vice-Chairman; Michael D. Antonovich, SCAQMD Board Member; Hal Bernson, SCAQMD Board Member; Jane W. Carney SCAQMD Board Member; Cynthia P. Coad, SCAQMD Board Member; Beatrice J.S. Lapistokirtley, SCAQMD Board Member; Ronald O. Loveridge, SCAQMD Board Member; Jon D. Mikels, SCAQMD Board Member; Leonard Paulitz, SCAQMD Board Member; Cynthia Verdugo-Peralta, SCAQMD Board Member; S. Roy Wilson, SCAQMD Board Member; Barry R. Wallerstein, SCAQMD Executive Officer; Defendants-Appellees, Natural Resources Defense Council; Coalition for Clean Air, Inc.; Communities for a Better Environment; Planning and Conservation League; Sierra Club, Defendants-Intervenors-Appellees, v. Western States Petroleum Association, Plaintiff-Intervenor-Appellant.

No. 05-56654.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2007.

Filed August 20, 2007.

Timothy A. French, Neal, Gerber and Eisenberg, Chicago, IL, for the appellant.

Fran M. Layton and Winter King, Shute, Mihaly and Weinberger LLP, San Francisco, CA; Kurt R. Wiese and Barbara Baird, SCAQMD, Diamond Bar, CA; Daniel P. Selmi, Los Angeles, CA, for the appellees.

Julie Masters, Melissa L. Perrella, NRDC, Santa Monica, CA, for the defendant-intervenors-appellees.

Michael R. Barr, Kevin M. Fong, Pillsbury Winthrop, San Francisco, CA; Mark E. Elliott, Pillsbury Madison, et al., Los Angeles, CA, for the plaintiff-intervenor-appellant.

Kipp A. Coddington, Alston & Bird, Washington, DC; Timothey J. Dowling, Community Rights Counsel, Washington, DC; Susan L. Durbin, Office of California Attorney General, Sacramento, CA, for the amici curiae.

Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding. D.C. No. CV-00-09065-FMC.

Before: BARRY G. SILVERMAN, W. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

Defendant-appellee South Coast Air Quality Management District ("the District") is a political subdivision of the State of California responsible for air pollution control in the South Coast Air Basin ("the Basin"), an area comprising the City of Los Angeles and portions of surrounding counties. In 2000, the District enacted six "Fleet Rules" that require operators of various kinds of vehicle fleets — such as street sweepers, garbage trucks, and airport shuttles — to choose vehicles meeting specified emissions standards or containing specified alternative-fuel engines when adding to their fleets. Some provisions of the Fleet Rules apply to state and local governmental agencies; others apply to federal governmental agencies and to private fleet operators. After a remand by the Supreme Court, we consider for the second time whether these Fleet Rules are preempted by the federal Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, including its preemption analysis. See Chamber of Commerce v. Lockyer, 463 F.3d 1076, 1082 (9th Cir.2006) (en banc). We affirm the district court in part, reverse in part, and remand for further proceedings.

I. Background

The Basin is the only area in the United States classified by the Environmental Protection Agency as an extreme nonattainment area for ozone. It is one of only five areas designated as a serious nonattainment area for small particulate matter. See 42 U.S.C. §§ 7511(a), 7513(b).

The District is charged with developing and implementing strategies to meet air quality standards within the Basin. See Cal. Health & Safety Code §§ 40404, 40412, 40440. California Health and Safety Code § 40447.5, adopted in 1987, authorizes the District to adopt regulations that

[r]equire operators of public and commercial fleet vehicles, consisting of 15 or more vehicles under a single owner or lessee and operating substantially in the south coast district, when adding vehicles to or replacing vehicles in an existing fleet or purchasing vehicles to form a new fleet, to purchase vehicles which are capable of operating on methanol or other equivalently clean burning alternative fuel and to require that these vehicles be operated, to the maximum extent feasible, on the alternative fuel when operating in the south coast district.

Id. § 40447.5(a).

Between June and October 2000, the District adopted six rules (the "Fleet Rules" or "Rules") pursuant to § 40447.5. Each Rule applies only to fleet operators of 15 or more vehicles. The Rules variously refer to "purchasing," "procuring," "leasing," and "contracting for" vehicles and appear to use the terms "purchasing" and "procuring" interchangeably. In order to be as clear as possible in our holding, and at the risk of awkward repetition, we adhere to the Rules' terminology throughout this opinion.

Fleet Rule 1186.1 applies to fleet operators of street sweepers "when purchasing or leasing these vehicles for sweeping operations undertaken by or for governments or governmental agencies in the jurisdiction of [the District]." The Rule applies to (1) "any federal, state, county, city or governmental department or agency, [and] any special district such as water, air, sanitation, transit, and school districts" (hereinafter, "public fleets"); and (2) any "private individual firm, association, franchise, contractor, user or owner who provides sweeping services to a governmental agency" (hereinafter, "private fleets with public contracts"). When purchasing or leasing street sweepers, these fleet operators must "acquire alternative-fuel or otherwise less-polluting sweepers." An "alternative-fuel sweeper" is one with "engine(s) that use compressed or liquefied natural gas, liquefied petroleum gas (propane), methanol, electricity, or fuel cells," and "[h]ybridelectric and dual-fuel technologies that use diesel fuel are not considered alternative-fuel technologies for the purposes of [the] rule." Fleet operators may obtain a waiver from the Rule's requirement if they "demonstrate the technical infeasibility of complying" either because no such sweepers are commercially available, or because a fueling station for alternative-fuel sweepers is "not available within five miles of the vehicle storage or maintenance yards." Rule 1186.1 also requires government agencies that contract for sweeping services to contract for sweeping services that use alternative-fuel sweepers if possible.

Fleet Rule 1191 applies to public fleets located in the Basin. It "requires passenger car, light-duty truck, or medium-duty vehicle fleet operators to acquire low-emitting gasoline or alternative-fuel vehicles . . . when procuring or leasing these vehicles in the District." The Rule defines compliant vehicles by reference to emissions standards for low-emission vehicles set by the California Air Resources Board ("CARB") pursuant to California's preemption waivers under § 209(b) of the Clean Air Act (discussed in greater detail below). The Rule contains various exemptions, including an exemption for emergency vehicles. The Rule also allows the public fleets to continue to purchase gasoline — or diesel-fueled vehicles by "offsetting" those purchases with purchases of low emission vehicles. The Rule does not apply to "[p]rivately owned or operated light — or medium-duty fleets that provide contract services to [a] public agency."

Fleet Rule 1192 applies to fleets of "public transit vehicle[s] or urban buses, operated by government agencies or operated by private entities under contract to government agencies." When procuring or leasing vehicles, these fleet operators must choose "alternative-fuel heavy-duty vehicles," defined as vehicles "that use[ ] compressed or liquified natural gas, propane, methanol, electricity, fuel cells, or other advanced technologies that do not rely on diesel fuel," and that meet the emissions requirements of the Urban Transit Bus Rule adopted by CARB. The Rule contains various exemptions, including for buses "not used for the express purpose of public transportation" and for buses "used for the express[ ] purpose of providing long-distance service (out-of-District)."

Fleet Rule 1193 applies to both public and private fleets of garbage trucks, regardless of whether the private fleets are under public contract. The Rule requires the "fleet operators to acquire alternative-fuel refuse collection heavy-duty vehicles when procuring or leasing these vehicles" and defines "alternative-fuel heavy-duty vehicles" in the same manner as in Rule 1192. The Rule allows purchases of "dual-fuel" vehicles relying on both diesel and alternative fuels for certain purposes, and operators are exempt from the Rule, inter alia, when no alternative-fuel engine "is available commercially or could be used."

Fleet Rule 1194 applies to public and private airport transportation fleets, also regardless of whether the private fleets are under public contract. The affected vehicles include taxis, limousines, commercial shuttles, and "courtesy shuttle transportation such as those provided by . . . rental agencies and hotels." When procuring, purchasing, or leasing vehicles, fleet operators using passenger cars or medium-duty vehicles for airport transportation must acquire a specified percentage of vehicles that meet CARB's standards for low-emission vehicles. Fleet operators purchasing and leasing heavy-duty vehicles must acquire alternative-fuel vehicles, defined as vehicles "not powered by gasoline or diesel fuel." The Rule also contains various exceptions, including exemptions where no such vehicles are available or could be used and for taxi fleets if "[the District] . . . has not provided sufficient funding to fully offset the purchase cost . . . less $10,000 (paid by . . . the airport fleet...