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MOTOR VEHICLE MFRS. ASSN. OF THE UNITED STATES

October 22, 1994

THE MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE UNITED STATES, INC., and THE ASSOCIATION OF INTERNATIONAL AUTOMOBILE MANUFACTURERS, INC., Plaintiffs,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., Defendants, AMERICAN PETROLEUM INSTITUTE ENVIRONMENTAL DEFENSE FUND, and NEW YORK STATE ELECTRIC & GAS, Intervenor-Defendants.



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

 This decision and order addresses the only remaining count in this action by plaintiffs Motor Vehicle Manufacturers Association of the United States and The Association of International Automobile Manufacturers, Inc., against defendant New York State Department of Environmental Conservation (hereinafter DEC) and its Commissioner.

 I. Background.1

 On May 28, 1992, New York State adopted California's low-emission vehicles plan, 6 NYCRR Part 218 (1992), (hereinafter LEV plan) without adopting California's program of clean fuels requirements (hereinafter CF program). *fn2" Plaintiffs filed suit in this Court on July 9, 1992, seeking permanent injunctive relief from New York's standards and claiming in six counts that New York's adoption violated various provisions of the Act. Five of those six counts have been decided by this court's previous memorandum-decisions and orders in Motor Vehicle Mfrs. Ass'n v. New York State Dep't of Envtl. Conservation, 810 F. Supp. 1331 (N.D.N.Y. 1993) and 831 F. Supp. 57 (N.D.N.Y. 1993), with such modification of those memorandum-decisions and orders as worked by Judge Cardamone's decision for the Second Circuit Court of Appeals in Motor Vehicle Mfrs. Ass'n v. New York State Dep't of Envtl. Conservation, 17 F.3d 521 (2d Cir. 1994) (hereinafter MVMA).

 The combined results of these decisions are as follows: on count one of plaintiff's complaint it was held that New York's failure to adopt California's CF program when it adopted California's LEV plan did not violate the identicality requirements of § 177; on count 3 of plaintiff's complaint it was held that New York's adoption of California's LEV requirements six months prior to the EPA's grant to California of the required § 209(b) waiver was not improper; on count four of plaintiff's complaint it was held that the statutory term "model year" was best read as applying on an industry-wide basis and that industry-wide, the 1995 model-year had commenced prior to May 28, 1994; *fn3" on count five of plaintiff's complaint it was held that New York's adoption of the zero-emission vehicles ("ZEV") sales quota portion of California's LEV plan did not impermissibly operate to "limit, directly or indirectly, the manufacture or sale of a new motor vehicle . . . that is certified in California as meeting California standards," § 177; on count six it was held that the ZEV sales quotas likewise did not violate the Act's prohibition of a State's adoption of California standards in a manner that would require manufacture of a third vehicle.

 On July 15, 1994, defendants moved for reconsideration of that conclusion in light of the Second Circuit's intervening decision in MVMA. This court agreed that the intervening decision and its implications constituted grounds for reconsideration of plaintiffs' contentions and allowed the parties to reargue their positions on August 26, 1994. Having considered these arguments, as well as the parties' voluminous declarations, affidavits and memoranda of law, this court finds that there remain no disputed issues of material fact and that summary judgment must issue for the defendant DEC.

 II. Discussion.

 Summary judgment is only appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. & R. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990) quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), and all ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 The court finds that while the parties' contentions are highly technical and hotly disputed, summary judgment can properly issue because where there are no facts in dispute, the law compels judgment for the defendant and, to the extent that plaintiff has raised disputed questions of fact, these facts are not material to resolution of the only issue remaining before this court: whether New York, by identically and without alteration adopting California's LEV plan, has impermissibly required the creation of a third vehicle. This court today holds it has not.

 Plaintiffs' arguments to the contrary can be summarized as follows:

 A. That cars equipped with California-appropriate but sulfur sensitive catalytic converters may, when operated on high sulfur fuel, fail future New York enhanced I/M programs or in-use recall testing programs. In particular, plaintiffs' point to studies that indicate that manufacturers may need to modify their planned use of palladium-containing converters in California cars because palladium is uniquely sensitive to high-sulfur gasoline and operation of these converters on high sulfur gasoline may cause vehicles to fail emissions tests in New York. They claim they may either have to use a less sulfur-sensitive metal, or move the converter closer to the engine to reduce the sulfur poisoning effect. Plaintiffs claim that implementation of either solution will create a third vehicle.

 B. That New York's high-sulfur fuel may cause the advanced onboard diagnostic systems ("OBD II"), required for California-Certified vehicles, to falsely illuminate, requiring more frequent replacement of the catalytic converter. The argument goes that since replacement becomes more probable, the manufacturers will switch from a welded catalytic converter ...


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