C. The Effects of High-Sulfur Fuel Generally:
Finally, the court notes that plaintiffs have raised questions of fact that flow only from the effects of long-term use of high-sulfur fuels on catalytic converters. This court finds that, standing alone, any alterations plaintiffs make in their vehicles because of the distinction between federal and California gas are as a matter of law not alterations that can be fairly characterized as constituting a third vehicle impermissibly required by an act of New York State's. As discussed above and clarified beyond peradventure in MVMA, Congress has elected to treat its fuel and emissions anti-pollution initiatives separately. As to fuel, the Congress expressly exempted California from the Act's federal fuel requirements. See Act § 211(c)(4)(B), 42 U.S.C. § 7545(c)(4)(B). Furthermore, unlike in § 177, Congress added no third vehicle prohibition to § 211(c)(4)(B). In exempting California fuels, Congress made a judgment that the design modifications and compromises with which auto manufacturers might be forced to contend because of the distinctions between California and federal fuels, were acceptable in light of the contemplated air quality benefits from the overall legislative scheme.
What the plaintiffs here seek to do is to point to vehicles designed expressly for California's clean fuels and unilaterally designate those vehicles as "second (California) vehicles." According to plaintiffs then, any alterations required to optimize these California vehicles' performance on federal fuels, undertaken in states that have piggybacked on California's emissions standards, result in that state having created an impermissible third vehicle. But the performance variances that plaintiffs are forced to address flow not from a state's act in adopting California's emission standards, but from Congress' exemption of California from federal fuels standards. If plaintiffs are successful in asserting that the alterations made for high-sulfur fuels, alterations made necessary because of the manufacturers' initial design choices in response to California's fuel exemption, constitute violations of the § 177 third vehicle prohibition, plaintiffs in effect will have succeeded in engrafting the § 177 identicality requirement and third vehicle prohibition onto California's fuel exemption.
But the third vehicle prohibition, like the sales-limitation prong of § 177, "is designed to reinforce the identicality requirement" of the emission standards adoption provision. MVMA at 536. Once it is understood that emission standards and fuels requirements are distinct and that states are free to adopt California's LEV standards without adopting its CF program, it becomes clear that plaintiffs here seek to prosecute indirectly the claims that the Second Circuit has directly rejected--their identicality claims that seek to restrict the reach of § 177 by tethering it to the effects flowing from California's § 211(c)(4)(B) fuels exemption. New York's LEV adoption, however, is properly viewed standing alone, separate from California's fuel exemption. As stated by the Second Circuit:
our reading of § 177 permits New York to adopt emission standards more stringent than those it would be left with under current federal law, and the LEV, standing alone, does not force auto manufacturers to do something more than they already have to do, that is, develop a plan to meet the fleet average requirement. After all, the manufacturers will presumably design and build the same cars for California as will be sold in New York.