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January 22, 1993


The opinion of the court was delivered by: THOMAS J. MCAVOY



 In this action the Motor Vehicle Manufacturers Association of the United States, Inc. and the Association of International Automobile Manufacturers, Inc. (Plaintiffs) challenge the amendments to 6 N.Y.C.R.R. Part 218 (Part 218 Regulations) which were recently promulgated by the New York State Commissioner of Environmental Conservation (Commissioner), and seek a Permanent injunction against their enforcement. These amendments were promulgated to address New York State's critical air pollution problems by imposing strict tailpipe emission controls on new motor vehicles sold in New York State. Plaintiffs claim that the Part 218 Regulations are preempted by § 177 of the federal Clean Air Act (the Act), 42 U.S.C. § 7507.

 The complaint contains six counts. First, Plaintiffs challenge that the failure of the Department of Environmental Conservation (hereinafter DEC) to adopt the clean fuels component of California's regulations violates the "identicality" requirement of § 177. Second, the complaint alleges that the DEC's failure to adopt the clean fuels component violates the "undue burdens" and "third vehicles" prohibitions of § 177. The third count alleges that DEC's adoption of California standards which have not yet received a federal waiver is in violation of § 177. Next, the complaint asserts that the New York adoption did not comply with the two year leadtime requirements of § 177. The fifth count alleges that the Part 218 Regulations relating to electric vehicles are in violation of Act's prohibition on indirect sales limits. Finally, the complaint alleges that the Part 218 Regulations relating to zero emission vehicles violates the "third vehicle" prohibition of § 177. Cross motions for summary judgment have been filed by all parties.

 Plaintiffs' complaint was filed on July 9, 1992. Soon after the filing of the complaint, the American Petroleum Institute (API), the Environmental Defense Fund (EDF), and New York State Electric & Gas (NYSEG) each moved to intervene in this action as of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, or in the alternative, permissively pursuant to Rule 24(b). NYSEG and EDF sought to intervene as defendants on all counts. API sought to intervene as a defendant on counts one and two of the complaint, and as a plaintiff on count three. These motions were referred to Magistrate Judge Ralph Smith for a decision. In an Order dated October 23, 1992 Magistrate Judge Smith granted the motions to intervene as of right as defendants. API's motion to intervene as a plaintiff was denied.

 Also on December 15, 1992, the court entertained oral argument on the pending motions for summary judgement. Because this case involves novel issues of law, the court departed from its usual practice of rendering decisions from the bench. Having given due consideration to the arguments advanced by the parties, both in their papers and at oral argument, this Memorandum-Decision & Order constitutes the decision of the court.


 In recent history, the field of environmental regulation has been handled both by the several states and the federal government. Consequently, as with other areas of the law in which there is such concurrent jurisdiction, issues of federal preemption are commonplace. Article VI subsection 2 of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land." U.S. Const., Art. VI. Therefore, where conflicts exist, state laws must yield to the supreme authority of federal law.

 Like many other areas of regulation in which state schemes predated their federal counterparts, Congress has not articulated an intent to preempt the entire field of regulating sources of air pollution. Instead, the states have been free to continue such regulation; and in some instances the states are given the responsibility for ensuring compliance with federal standards. However, as will be discussed below the Act does, in certain situations, completely preempt the states from acting, and in some instances narrowly proscribes how a state may act.


 In the 1970 amendments to Title I of the Act, Congress directed the Administrator of the Environmental Protection Agency (EPA) to develop national ambient air quality standards (NAAQS) for pollutants which the Administrator determines "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408. The Administrator has developed NAAQS that limit the concentrations of six pollutants: carbon monoxide (CO), lead, nitrogen dioxide (NO[2]), sulfur dioxide (SO[2]) and particulates. However, the Act places primary responsibility for attaining and maintaining the NAAQS with the states. 42 U.S.C. § 7410 (§ 110 of the Act). The Act requires the states to achieve these NAAQS according to specific timetables. To ensure compliance, Congress requires the states to adopt and submit to the EPA administrator a "state implementation plan", or SIP, which provides for the "implementation, maintenance, and enforcement of" the NAAQS. 42 U.S.C. § 741(a)(1)

 In the 1990 amendments to the Act, Congress imposed new NAAQS attainment schedules. New York State must now demonstrate a fifteen percent reduction of volatile organic compounds from 1990 baseline emissions by 1996, and a three percent reduction each year thereafter until attainment is reached. 42 U.S.C. §§ 7511a(b)(1), 7511a(c)(2)(B). In addition to the VOCs reduction requirements, the amendments included ozone reduction requirements. Twenty-two counties in New York are in nonattainment of the ozone NAAQS. Other areas of the State, specifically the New York City metropolitan area and the Syracuse area, are in nonattainment of the CO NAAQS. New York must comply with the CO NAAQS by 1995 and the ozone NAAQS by 2007.

 New York State is required to submit a revised SIP which contains enforceable measures to achieve the required reductions. 42 U.S.C. § 7511a. Also, under these amendments the revised SIP must include an enhanced Inspection and Maintenance (I/M) program for the reduction of emissions from in-use motor vehicles registered in certain urban areas. 42 U.S.C. § 7511a(c)(3)(A). *fn1" The minimum requirements for this enhanced I/M program are prescribed by statute. 42 U.S.C. § 7511a(c)(3)(C). New York's failure to comply with these mandates will result in the imposition of sanctions by the EPA. 42 U.S.C. § 7509.


 Motor vehicles primarily emit three pollutants - Co and two precursors of ozone, volatile organic compounds (VOCs) and nitrogen oxides (NO[x]). CO is a primary pollutant that is directly emitted in vehicle exhausts, and it presents a health risk because it prevents the transfer of oxygen to the blood stream. Ground level ozone, a component of urban smog, is a pollutant that is formed from a variety of chemical reactions involving VOCs and NO[x] in the presence of sunlight. Because of the higher temperatures in the summer months, the formation of ozone is greater at that time of year. Unlike the ozone in the upper atmosphere which is beneficial, ground level ozone is harmful to humans and the environment. VOCs are vapors emitted from substances such as gasoline and solvents.

 Congress has assigned chief responsibility for the regulation of new motor vehicle emissions in the United States to the EPA. Two of the primary purposes of preempting this field of regulation were to ensure uniformity throughout the nation, and to avoid the undue burden on motor vehicle manufacturers which would result from different state standards. The 1970 amendments to the Act gave the administrator of the EPA the authority to publish mandatory vehicle emission standards for new motor vehicles. 42 U.S.C. § 7421. Manufacturers, in turn, are required to warrant compliance with these standards throughout the useful life of the vehicle. 42 U.S.C. § 7541.

 Regulations adopted by the EPA pursuant to 42 U.S.C. § 7525 require automobile manufacturers to demonstrate that their vehicles will comply with these standards prior to the sale of each new model. 40 C.F.R. § 86.078-3 et seq. This process, known as "certification", involves the testing of prototype vehicles made available by the manufacturers to the EPA. The gasoline used in this initial testing is called "certification gasoline" or "certification fuel". The certification fuel used by the EPA is commonly referred to as "indolene" fuel, and is relatively cleaner than most commercially available fuels.

 However, after the vehicles for a given model year have been sold to the public, the EPA obtains a sample of "in use" vehicles and conducts tests similar to the certification testing. If, based upon the results of this "in use" testing, the administrator of the EPA determines that a class of vehicles does not conform to the vehicle emission standards he or she may order a recall of such vehicles at the manufacturer's expense. 42 U.S.C. § 7541(c); see also General Motors Corp. v. Ruckelshaus, 239 U.S. App. D.C. 408, 742 F.2d 1561, 21 ERC 1529 (D.C. Cir. 1984), cert. denied, 471 U.S. 1074, 105 S. Ct. 2153, 85 L. Ed. 2d 509 (1985). State I/M programs also support the effort to ensure that vehicles comply with emission standards. The purpose of these programs is to ensure that vehicles are properly maintained in customer use. 57 Fed.Reg. 31,057, 31058 (July 13, 1992). Because of the manufacturer's warranties discussed above, when a vehicle fails the state inspection the repairs are often done at the manufacturer's expense.


 The 1970 amendments to the Act preempted states from enacting their own vehicle emissions standards. 42 U.S.C. § 7543 (§ 209(a) of the Act). Congress did however create an exception for states which had adopted standards for the control of emissions from new motor vehicles prior to March 30, 1966. 42 U.S.C. § 7543(b). The practical effect of this was to create an exemption only for the State of California since it was the only state to have enacted standards for new vehicle emissions. In order to take advantage of this exception, however, California must apply for a waiver from the EPA Administrator. *fn2" With this exception to preemption, California has had greater avenues open to it for attaining and maintaining the NAAQS.

 Prior to 1977, New York was limited in the avenues that it could pursue to meet the NAAQS. However, in that year Congress enacted § 177 of the Act, 42 U.S.C. § 7507, which altered the preexisting preemption rule. § 177 allows states to "adopt and enforce for any model year standards relating to control of emissions from new motor vehicles . . . if:

 "(1) such standards are identical to the California standards for which a waiver has been granted for such model year, and (2) California and such State adopt such standards at least two years before commencement of such model year . . ." 42 U.S.C. § 7507.

 One of the principal reasons for the adoption of § 177 was that by 1977 only a few states had met the NAAQS for ozone, and many others had failed to meet the carbon monoxide standard. § 177 gives these nonattainment states the option of adopting the California vehicle emissions program to support their efforts to comply with the ozone and carbon monoxide standards.

 In the 1990 amendments to the Act, Congress added a caveat to the § 177 exception to § 209 preemption. The caveat which was added reads as follows:

 "nothing in this section . . . shall be construed as authorizing any such state to prohibit or limit, directly or indirectly, the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California as meeting California standards, or to 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 third vehicle." 42 U.S.C. § 7507 (West Supp. 1992).

 The purpose of this additional restriction on the states' ability to adopt motor vehicle emissions standards was obviously to protect the automobile industry from the undue burden of potentially having to produce 51 different vehicles.


 The issues presented on the cross-motions for summary judgment require interpretation of the statutory scheme just explained. Unfortunately, no court has confronted the issues presented in this case. Therefore, the court must look to well established principles of statutory construction to resolve the issues presented. Certainly, where the language of the statute to be interpreted is clear the court must go no further. State of Connecticut v. U.S. Environmental Protection Agency, 656 F.2d 902, 909, 16 ERC 1467 (2d Cir. 1981). However, the purpose of heeding the literal language of the statute is to give effect to the intent of Congress. Lewis v. Grinker, 965 F.2d 1206, 1215, 37 Soc.Sec.Rep.Ser. 439 (2d Cir. 1992) ("we can never forget that what we are searching for is Congressional intent.").

 As is often the case, the Congressional enactments at issue here represent a compromise between competing objectives. The result therefore is that different provisions of the same statute further different Congressional aims. From the language of the Act, it is clear that Congress sought to achieve two goals in enacting and amending the Clean Air Act. It cannot be disputed that Congress sought to permit state regulation of new motor vehicle emissions. However, in doing so Congress expressed a clear intent to protect motor vehicle manufacturers from the undue burden of complying with more than two different regulatory ...

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