model year, summary judgment was granted to Plaintiffs. Defendants now argue that the Court erred in granting Plaintiffs' motion for summary judgment on count four of the complaint. They advance three principal arguments: first, that the Court's reading of the two year leadtime requirement would preclude a § 177 state from adopting standards identical to those adopted by California for the 1996 model year; second, that Plaintiffs failed to demonstrate that New York did not provide two years leadtime with respect to the 1995 standards; and third, that the Court should consider "splitting" the model year.
Under § 177 of the Act, New York is authorized to adopt motor vehicle emission standards "identical to the California standards for which a waiver has been granted for such model year, . . .". 42 U.S.C. § 7507(1). However, § 177 also requires, as a prerequisite to New York's adoption of motor vehicle emission standards, that both California and New York "adopt such standards at least two years before commencement of such model year. . .". 42 U.S.C. § 7507(2). Defendants argue that once New York takes the step of adopting the California standards for any particular year, it is required by the statute to revise those standards in accordance with subsequent amendments adopted by the California Air Resource Board (CARB). Unlike New York, however, California may adopt motor vehicle emission standards without the two year leadtime required of New York and other § 177 states. See 42 U.S.C. § 7543(b). Therefore, Defendants contend that the Court's strict interpretation of the two year leadtime requirement would preclude New York from revising its standards in accordance with amendments adopted by CARB if those amendments were adopted less than two years prior to the commencement of the model year.
In response, Plaintiffs argue that Defendants position is based upon "an extreme interpretation of § 177 that no party to this litigation has advocated. . .". (Plaintiffs' Memorandum in Opposition to Motion for Reargument at p. 22.). Plaintiffs assert that the California standards to which the leadtime requirement applies are the same California standards that must receive a waiver from the Environmental Protection Agency (EPA) before they can be adopted by a § 177 state. Under Plaintiffs' interpretation of the statute the two year leadtime requirement would not apply if the subsequent revisions of the California standards adopted by CARB were found to be within the scope of a previous waiver. Conversely, under this interpretation the two year leadtime requirement would apply to California standards for which the EPA determines a new waiver is required.
The Court found that this issue was academic because there were no claims that the delay in adopting the California LEV standards for model year 1995 - that is, the delay which the Court found violated § 177 - was caused by subsequent amendments adopted by CARB. Defendants point out that in support of New York State DEC's cross-motion for summary judgment Colleen McCarthy, a senior attorney with the New York State DEC, stated in her affidavit that CARB is in the midst of revising the nitrogen oxides (NOx) standard for the 1996 model year. They assert that there is no reason to believe that CARB will not complete its revision of the NOx standard for the 1996 model year; and that if CARB does so then New York will be required to adopt such revision less than two years prior to the commencement of the model year. Therefore, Defendants argue that the issue is not academic.
Although Defendants have raised an interesting issue, and likewise Plaintiffs have presented a persuasive response, the Court is still of the opinion that the issue is not properly presented. Moreover, the argument now advanced would not have materially altered the court's prior decision. While CARB may be in the process of revising its NOx standard for the 1996 model year, no party has argued that New York's adoption of such revision would violate the two year leadtime requirement of § 177; and this was not the holding of the Court. Indeed, Plaintiffs have taken the position that if such revisions are within the scope of the previous waiver granted by the EPA then New York's revision of the NOx standard would not trigger the two year leadtime requirement.
Moreover, any amendments to the standards adopted by CARB for the 1996 model year were not presented to the Court on the original cross-motions for summary judgment and in fact were not the subject of Plaintiffs' complaint, and consequently are not a proper subject for a motion for reconsideration of that decision. Therefore, the Court declines to reconsider its ruling on count four of the complaint based upon Defendants first argument.
Next, Defendants argue that Plaintiffs failed to demonstrate that New York did not comply with the two year leadtime requirement with respect to the 1995 standards. They argue that out of the many motor vehicle manufacturers which Plaintiffs represent only one has asserted that the production of its 1995 model year vehicles will commence less than two years after May 28, 1992. Moreover, Defendants assert that this sole manufacturer failed to provide the Court with anything beyond a conclusory statement that it will begin production before that date.
On the latter point, the Court disagrees with Defendants. Plaintiffs presented uncontroverted evidence that production will commence on all General Motors' 1995 vehicles prior to May 28, 1994. Not only did Defendants fail to present any evidence which would demonstrate a question of fact on this point, but they failed to move for additional discovery pursuant to Fed.R.Civ.P. 56(f). Therefore, insofar as the Court has held that DEC violated the leadtime requirement of § 177 as to all General Motors 1995 vehicles, the motion for reconsideration is denied. However, Defendants have met the standard for reconsideration in a slightly different respect.
While Plaintiffs represent nearly all automobile manufacturers which sell their products in the United States, in support of their motion for summary judgment they submitted evidence only as to the commencement of production for General Motors' 1995 vehicles. Defendants contend that Plaintiffs have therefore failed to satisfy their burden on summary judgment in this regard. In response, Plaintiffs argue that it would have been both redundant and unnecessary for them to have introduced evidence on the scheduled production dates for every member manufacturer. Moreover, they contend that if Defendants found such evidence relevant to the issues presented, they should have sought discovery and offered evidence on that point.
The matter now being raised by Defendants, although not squarely presented on the cross-motions for summary judgment,
was one not fully considered by the Court in its original decision, and in retrospect would have materially altered the prior decision. Plaintiffs alleged in the complaint, and Defendants have not disputed, that the 1995 model year begins "as early as January 2, 1994." (Complaint at P 56). Therefore, in order to provide the two year leadtime required under § 177, DEC may be required to adopt the 1995 model year standards as early as January 1, 1992. However, the fact that the 1995 model year may begin as early as January 2, 1994 does not mean that in all instances, as to all manufacturers, the 1995 model year begins on January 2, 1994. Production of the 1995 vehicles may in fact begin later than that date. However, because DEC adopted the 1995 model year standards on May 28, 1992, it has only satisfied the two year leadtime requirement as to those manufacturers whose production of 1995 vehicles commences after May 28, 1994.
On a motion for summary judgment the moving party has the initial burden of demonstrating that there is no genuine issue of material fact. In the case of a cross-motion like Defendants', however, that burden can be satisfied by pointing out the absence of evidence to support the non-movant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-movant, here Plaintiffs, then bears the burden of demonstrating the existence of the elements necessary to its claim. Id.; see also Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991).
Because Plaintiffs alleged in the complaint that DEC violated § 177 by failing to provide the required leadtime for the model year 1995 standards, it was therefore their burden to demonstrate that there was no genuine issue of material fact on that claim. As noted above, Plaintiffs satisfied this burden as to vehicles manufactured by General Motors. However, Plaintiffs failed to present any evidence as to their other members. Contrary to Plaintiffs' present arguments, such evidence is neither redundant nor unnecessary.
In enacting § 177 Congress balanced the states' need to regulate motor vehicle emissions against the consequent burden on motor vehicle manufacturers' and determined that two years advance notice of a state's adoption of California's new motor vehicle emission standards was sufficient. However, Congress did not define the date from which the two years must be measured. Rather, the two year leadtime requirement hinges on the commencement of production for a particular model year, which is, with certain limitations, in the particular manufacturer's discretion. Whether a state has complied with the leadtime requirement of § 177 therefore depends upon two dates: the date on which production for a particular model year is to commence, and the date on which the state adopts the standards for that model year.
DEC adopted the instant standards on May 28, 1992. General Motors has determined that the production of its model year 1995 vehicles will commence prior to May 28, 1994. Consequently, General Motors was not provided with sufficient notice of the 1995 standards. However, the fact that General Motors decided to commence production prior to May 28, 1993 and was therefore not provided sufficient notice under the statute, does not translate into a finding that all other manufactures were not given sufficient notice. If a manufacturer does not commence production of its model year 1995 vehicles prior to May 28, 1994, then it has, as a matter of law, been provided with sufficient notice of the 1995 standards. The failure to provide the statutory leadtime to a particular manufacturer for a particular model year does not invalidate the standards themselves. Instead, it merely renders them unenforceable as against those manufacturers which were not given the requisite two-years notice.
The Court will not reconsider its ruling that DEC must provide the requisite two year leadtime. However, insofar as the prior ruling can be construed as invalidating the model year 1995 standards as to all manufacturers, the Court hereby modifies that ruling and finds that the model year 1995 standards are unenforceable as against those manufacturers which commence production of the 1995 vehicles prior to May 28, 1994.
Finally, Defendants argue that the Court should consider "splitting" the model year. In other words, Defendants argue that the Court should consider applying the model year 1995 standards to those particular models the production of which is to commence after May 28, 1994, even if a manufacturer will commence production of its other models prior to May 28, 1994. Plaintiffs correctly point out that this argument was not advanced in Defendants' cross-motions for summary judgment. Although the position now advanced by Defendants was contained in a letter from former EPA Administrator William Reilly to DEC Commissioner Thomas Jorling which was filed with the Court on January 14, 1993, it was not argued by Defendants in their motion papers or at oral argument. Consequently, the Court did not express an opinion on the position taken by the former EPA Administrator and presently advanced by Defendants. Therefore, this issue is not properly before the Court on a motion for reconsideration.
For these reasons, the Court finds that partial reconsideration of its earlier decision granting summary judgment to Plaintiffs on count four of the complaint is warranted. The Court hereby modifies part IV.(F) of the Amended Memorandum-Decision and Order dated January 26, 1993. Summary judgment is granted to Plaintiffs on count four. However, in order to clarify the prior ruling, on count four of the complaint the Court finds that the model year 1995 standards are unenforceable as against those manufacturers which commence production of the 1995 vehicles prior to May 28, 1994.
In count five Plaintiffs alleged that zero emission vehicle sales mandate contained in the Part 218 Regulations is in violation of the § 177 prohibition on indirect sales limits. Section 177 provides that a state which adopts California vehicle emission standards shall not "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. . ." 42 U.S.C. § 7507 (West Supp. 1992). The Court found that the zero emission vehicle sales mandate adopted as part of the Part 218 Regulations effectively limited the sales of all other classes of California certified vehicles.
Defendants argue that the Court erred in granting Plaintiffs motion for summary judgment on count five in the complaint. Specifically, Defendants argue that § 177 does not prohibit limitations on the sale of certain classes of California certified vehicles, but rather sales of California certified vehicles generally. Defendants maintain that the zero emission vehicle sales requirement does not limit the sale of California certified vehicles generally; instead, Defendants argue, it requires the sale of such vehicles. This argument was advanced by DEC in support of its cross-motion for summary judgment and rejected by the Court.
While the regulations may in fact require the sale of California certified vehicles generally, the effect of mandating that a certain percentage of such vehicles fall into a particular class is to limit the number of other California certified vehicles which a manufacturer can sell in New York. The sales mandate therefore constitutes a limit on the sale of all other new motor vehicles ". . . that [are] certified in California as meeting California standards. . .", 42 U.S.C. § 7507 (West Supp. 1992). Defendants' motion fails to identify matters that were overlooked and which would have materially altered the Court's decision.
Therefore, the Court will not reconsider its ruling on count five of the complaint.
Count six of the complaint alleges that the zero emission vehicle mandate contained in the Part 218 Regulations violates the "third vehicle" prohibition of § 177. Plaintiffs argued, and the Court agreed, that if required to sell a particular number of zero emission vehicles in New York, manufacturers would be forced to include an enhanced heating system, such as a fuel fired heater, to satisfy local climatic conditions. Because such a vehicle would be different than zero emission vehicles certified under California standards, the Court found that the sales mandate violated § 177.
Defendants raise a number of arguments concerning count six; and the court recognizes that Defendants have presented new evidence which would otherwise warrant reconsideration on count six.
However, because the Court has already ruled in count five that the zero emission vehicle sales mandate violates § 177, consideration of Defendants present arguments is not necessary. Therefore, it the exercise of its discretion, the Court declines the opportunity to reconsider its earlier ruling on count six of the complaint.
Having reconsidered its earlier ruling in this matter, the Court hereby vacates the judgment entered on January 28, 1993. For the reasons expressed above, the Amended Memorandum-Decision & Order dated January 26, 1993 is hereby modified. On count two of the complaint, the court finds that there exists genuine issues of material fact precluding summary judgment. As for count four of the complaint, summary judgment is granted to Plaintiffs in that the model year 1995 standards are unenforceable as against those manufacturers which commence production of the 1995 vehicles prior to May 28, 1994. Because Defendants failed to meet the standard for reconsideration, the court's ruling on count five of the complaint remains; and therefore, the court declines to reconsider its ruling on count six.
IT IS SO ORDERED.
Dated at Albany, New York
July 12, 1993
Thomas J. McAvoy
Chief U.S. District Judge