FORD MOTOR COMPANY, Pеtitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Automobile Importers of America, Inc. and State of California, Intervenors.
No. 78-1791
United States Court of Appeals District of Columbia Circuit
Decided Aug. 17, 1979
Rehearing Denied Oct. 25, 1979.
606 F.2d 1293
John E. Nolan, Jr., Washington, D. C., with whom W. George Grandison and Charles G. Cole, Washington, D. C., and Thomas L. Saybolt, Dearborn, Mich., were on the brief, for petitioner.
James McNab, III, Atty., Environmental Protection Agency, Washington, D. C., a member of the bar of the Supreme Court of California, pro hac vice, by special leave of court, Bruce L. Bertelsen, Atty., Environmental Protection Agency, Washington, D. C., a member of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, аnd David E. Dearing, Atty., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D.C., Joan Z. Bernstein, Gen. Counsel, and Gerald K. Gleason, Atty., Environmental Protection Agency, Washington, D.C., and Angus Macbeth, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondent. James W. Moorman and Lloyd S. Guerci, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondent.
Milton D. Andrews, Dennis M. Schwentker, and Lance E. Tunick, Washington, D. C., were on the brief for intervenor Automobile Importers of America, Inc.
Before WRIGHT, Chief Judge, and MacKINNON and ROBB, Circuit Judges.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
Dissenting opinion filed by Circuit Judge MacKINNON.
J. SKELLY WRIGHT, Chief Judge:
Almost from its inception the federal program for regulation of motor vehicle emissions has recognized the pressing air quality problems of southern California and provided officials of that state with an opportunity to continue their pioneering efforts to grapple with them.1 The key provision in this regard authorizes the Administrator of the Environmental Protection Agency to waive on California‘s behalf the section of the
The present petition is one of several challenging the Administrator‘s June 7, 1978 decision waiving federal preemption for California‘s most recent emission standards.6 It raises only one question: wheth
I. BACKGROUND
A. Prior to 1977
California launched its emission control program in 1964 with the adoption of standards applicable to the 1966 model year.8 By the early 1970s it had set maximum levels for the three major types of pollutants generated by the automobile: hydrocarbons (HC), carbon monoxide (CO), and the various oxides of nitrogen (NOx).9 Congress became active in the emission control area in 1965, when it authorized the Secretary of Health, Education and Welfare to promulgate federal standards for new cars.10 Two years later, apparently concerned that auto manufacturers might be subjected to multiple and inconsistent requirements,11 Congress enacted what is now Section 209(a) of the
(a) No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.13
Even as it approved this preemption provision, Congress recognized that “compelling and extraordinary circumstances” in California were sufficient “to justify standards on automobile emissions which may, from time to time, need to be more stringent than national standards.”14 Accordingly, it enacted the original California waiver provision—the precursor of what is
(b) Waiver
The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new mоtor vehicles or new motor vehicle engines prior to March 30, 1966, unless he finds that such State does not require standards more stringent than applicable Federal standards to meet compelling and extraordinary conditions or that such State standards and accompanying enforcement procedures are not consistent with
section 1857f-1(a) of this title .17
Since California was the only state which had adopted standards other than crankcase emission standards prior to March 30, 1966, it was the only one eligible for the waiver of federal preemption authorized by this section.
In 1970 Congress made further revisions in the
In the years that followed California took advantage of its ability under Section 209(b) to obtain a waiver of fеderal preemption for state standards “more stringent than applicable Federal standards” and necessary to meet “compelling and extraordinary conditions.” A number of manufacturers elected to market automobiles designed to meet the California standards in states other than California. Some sold California cars only in the western states. Others marketed them nationwide.24 Since the California standards were in all respects at least as strict as the federal ones, California-equipped cars met federal standards as well, and were therefore eligible to receive the federal “certificate of conformity” without which they could not lawfully be introduced into commerce.25 Their nationwide sale thus posed no problem under the Act.
B. The 1977 amendments
In 1977 Congress undertook further revision of the
Congress made it quite clear that it is the state that is charged with making the protectiveness determination. Indeed, the new Section 209(b) provides that the Administrator shall waive federal preemption unless he finds that California‘s decision was “arbitrary and capricious,” that that state does not need its standards “to meet compelling and extraordinary conditions,” or that the standards and accompanying enforcement procedures are not consistent with federal requirements concerning technical feasibility and certification set forth elsewhere in the Act.29 In short, Congress consciously chose to permit California to blaze its own trail with a minimum of federal oversight.30
Notes
Pub.L.No. 90-148, 81 Stat. 501 (emphasis added).Sec. 208 “(b) The Secretary shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, unless he finds that such State does not require standards more stringent than appli cable Federal standards to meet compelling and extraordinary conditions or that such State standards and accompanying enforce ment procedures are not consistent with
sec tion 202(a) of this title .
(b)(1) The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emis sions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protec tive of public health and welfare as applica ble Federal standards. No such waiver shall be granted if the Administrator finds that—
(A) the determination of the State is arbi trary and capricious,
(B) such State does not need such State standards to meet compelling and extraordi nary conditions, or
(C) such State standards and accompany ing enforcement procedures are not consist ent with
section 7521(a) of this title .
July 14, 1955, c. 360, Title I, § 177, as added Aug. 7, 1977, Pub.L. 95-95, Title I, § 129(b), 91 Stat. 750.Notwithstanding section 7543(a) of this ti tle, any State which has plan provisions ap proved under this part may adopt and en force for any model year standards relating to control of emissions from new motor vehi cles or new motor vehicle engines and take such other actions as are referred to in sec tion 7543(a) of this title respecting such vehi cles if—
(1) such standards are identical to the Cali fornia 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 com mencement of such model year (as deter mined by regulations of the Administrator).
Two other facets of the 1977 amendments bear directly upon the meaning and import of the revised waiver provision. First, because cars meeting future California standards might well fail in some respects to meet comparable federal ones—and thus could not receive the certificate of conformity which is a prerequisite to lawful sale in this country—Congress added a new subsection 209(b)(3) to the waiver provision.31 That subsection, the meaning of which is hotly contested in this litigation, provides:
(3) In the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver granted under paragraph (1), compliance with such State standards shall be
treated as compliance with applicable Federal standards for purposes of this subchapter.
The second significant facet of the recent amendments to the
C. The California waiver proceeding
The California Air Resources Board held hearings in the course of 1977 to establish that state‘s emission standards for 1979 and subsequent model years. Ultimately the Board adopted a rather complex series of primary standards, optional compliance schedules and techniques, and enforcement regulations.35 In 1979 the California standards were to be in every respect at least as stringent as the federal ones.36 In 1980, 1983, and subsequent years California planned to have accomplished precisely what Congress anticipated it would seek to accomplish37—the establishment of general applicable standards stricter than federal ones with rеgard to NOx and somewhat more lenient than federal ones with regard to CO.38 And in 1981 and 1982 the relationship between state and federal standards was to vary depending upon which compliance options a manufacturer found preferable.39
California applied under Section 209(b) for a waiver of federal preemption so that it could place this package of standards into effect. On June 7, 1978, after various hearings and submissions by interested parties, the Acting EPA Administrator, Barbara Blum, granted California‘s application.40 In addition to noting the narrowness of the congressionally mandated EPA review and concluding that she was unable to make findings which would have permitted her to deny a waiver for the California standards
Various parties petitioned on various grounds for reconsideration of the Acting Administrator‘s decision.45 Ford Motor Company, the Motor Vehicle Manufacturers Association (MVMA), and the Automobile Importers of America (AIA) challenged the determination that certificates of conformity issued for California-equipped cars would only cover vehicles introduced into commerce for sale in California. Ford argued that the California standards were in meaningful respects more stringent than the federal ones and that there was in consequence no reason to forbid nationwide sale of California-equipped cars. It supplied the EPA with a substantial amount of data in support of this proposition and observed as well that California cars would cost less and use less gasoline than vehicles designed to meet federal standards. In addition, it asserted that Congress would not radically have altered the past practice of permitting nationwide sale of California cars without explicitly stating that it intended to do so.46
On November 1, 1978 the Administrator, Douglas M. Costle, denied the Ford and MVMA petitions on grounds that the revised version of Section 209(b) left EPA without discretion to permit nationwide sale of California cars.47 Accordingly, he concluded that Ford‘s data concerning the asserted public benefits of such sale were irrelevant, or at least should have been addressed to Congress and not to the Agency.48 The AIA petition was denied March 9, 1979 on similar grounds.49
Ford and MVMA sought review in this court, although the latter‘s petition was subsequently dismissed on its own motion. AIA is before this court as an intervenor in support of Ford.
II. ANALYSIS
Ford argues that the Administrator erred in concluding that the
We disagree on all counts. In our view, the 1977 amendments significantly altered the California waiver provision and the relationship between California and federal emission control standards. As a result of that alteration the once unexceptional practice of distributing California cars nationwide was rendered unlawful for the simple reason that such cars will no longer comply with federal standards. Accordingly, we agree with the Administrator that Ford‘s data concerning the environmental effects and consumer benefits that inhere in the California standards were irrelevant to the question before the Agency. Nor were rulemaking procedures required. EPA did not promulgate a new rule, it merely recognized and effectuated changes wrought by Congress.52 However meritorious Ford‘s position with regard to those changes may be, it was then and is now being presented to the wrong forum. Neither the Administrator nor this court is free to reverse the congressional determination.
Our starting point is the statute itself. Congress knew precisely what it was doing when it added the “in the aggregate” language to the California waiver provision. Indeed, it included a new Section 209(b)(3) to deal specifically with any problems posed by vehicles that comply with California standards but not with federal ones. That section provides that “[i]n the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver granted under paragraph (1), compliance with such State standards shall be treated as compliance with applicable Federal standards * * *.”53 We take this to mean precisely what it says—that vehicles “to which State standards apply” and which meet those standards shall be treated as complying with federal standards and thus may receive certificates of conformity and be introduced into commerce. But the only vehicles “to which State standards apply” are, as the Government points out, those introduced into commerce for sale in California.54 Thus Section
(b)(1) The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crank case emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such waiver shall be granted if the Administrator finds that—
(A) the determination of the State is arbitrary and capricious,
(B) such State does not need such State standards to meet compelling and extraor dinary conditions, or
(C) such State standards and accompa nying enforcement procedures are not con sistent with
section 7521(a) of this title .
The Administrator, thus, is not to overturn California‘s judgment lightly. Nor is he to substitute his judgment for that of the State. There must be clear and compelling evidence that the State acted unreasonably in evaluat ing the relative risks of various pollutants in light of the air quality, topography, photo chemistry, and climate in that State, before EPA may deny a waiver.
§ 7507. New motor vehicle emission standards in nonattainment areas
Notwithstanding section 7543(a) of this title, any State which has plan provisions approved under this part may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines and take such other actions as are referred to in section 7543(a) of this title respecting such vehicles if—
(1) such standards are identical to the California standards fоr 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 (as determined by regulations of the Administrator).
42 U.S.C. § 7507 (Supp. I 1977).
Ford argues, however, that we should adopt a far broader reading of Section 209(b)(3). It asks, in effect, that we interpret the provision to mean that any vehicle, no matter where destined for sale, that complies with California standards for which a waiver has been granted shall be treated as complying with federal standards as well. We find no support in the text itself or in the legislative history for such a reading. Further, our perception of the structure of the Act and the underlying policies is solidly to the contrary.
In the first place, the argument that Congress would not have altered EPA‘s longstanding practice of permitting nationwide distribution of California cars without declaring that it intended to do so is simply not persuasive. In large measure it depends upon an ultimately misleading characterization of the prior Agency practice. Until the 1977 amendments, as we have already noted, California cars complied with federal standards. Thus their distribution outside of California was permissible pursuant to the general practice of permitting sale in such states of vehicles that met federal standards and forbidding sale of those that did not. In the wake of the 1977 amendments there arose the possibility that California-equipped cars would no longer comply as a matter of course with federal requirements. That fact left Congress with two choices—it could nonetheless permit their nationwide sale, and thus depart from the practice of permitting such sale only for cars complying with federal standards, or it could restrict their sale, and thereby adhere without change to the prior rule permitting nationwide distribution only of complying vehicles. We think the former choice would have amounted to an extraordinary and dramatic departure—one not lightly to be inferred. The latter, in contrast, was fully consistent with what went before. Accordingly, having found no break with past practice, we are at a loss to see why Congress’ supposed silence in this regard poses any difficulty for the Administrator‘s position.
Our conclusion is only reinforced by a broader look at the structure of the statute. At the risk of repeating ourselves, several points bear emphasis. First, there is no question that Congress deliberately chose in 1977 to expand the waiver provision so that California could enforce emission control standards which it determined to be in its own best interest even if those standards were in some respects less stringent than comparable federal ones.56 Second, it is equally clear that it was Congress itself that set those comparable federal standards.57 Third, the statute does not provide for any probing substantive review of the California standards by federal officials. Rather, it instructs the Administrator to grant a waiver unless he determines that California acted arbitrarily and capriciously when it concluded that its standards were in the aggregate as protective as federal ones.58 With these features as the backdrop, the extraordinary nature of petitioner‘s position becomes clear. Ford is asking this court to declare that Congress intended to make standards adopted by California for its own particular problems, and never
Ford attempts to escape the force of our position by arguing (1) that the reasoned decisionmaking of the EPA Administrator will serve as a check to prevent auto manufacturers from abusing overly lenient or regionally inappropriate California standards, and (2) that Congress anticipated that California standards would be in total more stringent and more protective of the public health and welfare than fеderal ones. We remain unpersuaded. There is no indication in either the statute or the legislative history that Congress intended to permit the Administrator to supplant its emission control regulations with those of California, no matter how sagacious and beneficial the latter may be.60 Nor is there any evidence that the Administrator is supposed to determine whether California‘s standards are in fact sagacious and beneficial. Indeed, if Ford is correct we must come to the rather curious conclusion that Congress intended the Administrator to approach every new set of California standards wearing two hats—one expressly provided by statute and the other a product of elusive inference. Under the first he would undertake the cursory review set forth in Section 209(b) for purposes of deciding whether to grant California a waiver of preemption; and under the other he would turn around and, apparently in the course of a full-fledged rulemaking proceeding, plumb the merits of the California standards and their likely effect on nationwide pollution for purposes of deciding on the appropriate scope of a certificate of conformity. Far less unwieldy, and considerably more plausible, is the Government‘s construction—that the Administrator is charged with undertaking a single review in which he applies the deferential standards set forth in Section 209(b) to California and either grants or denies a waiver without exploring the consequences of nationwide use of the California standards or otherwise stepping beyond the responsibilities delineated by Congress.
In our judgment, Ford‘s contentions concerning the congressional expectation that California standards would be stricter than federal ones are similarly wide of the mark. First, the indicia of congressional understanding are not unambiguous. While Ford is able to point to remarks by several legislators to the effect that the California standards would be tougher,61 the House Report refers quite specifically to “California‘s longstanding belief that stringent control of [NOx] may be more essential * * * than stringent control of [CO]”62 and not to
More fundamentally, our position does not turn on whether congressmen did or did not assume the California standards would be more stringent. Nor does it depend on whether those standards actually are more stringent. The crucial point is that in no sense does the statutory scheme ensure that the California standards would be as protective as federal ones if applied nationwide. Section 209(b) merely requires California to make its own protectiveness determination prior to applying for a waiver. It was clearly the intent of the Act that that determination focus on local air quality problems—problems that may differ substantially from those in other parts of the nation.68 Yet Congress made no provisions for any federal scrutiny of the impact of substituting California standards for federal ones in the other 49 states. We see no reason to read such a provision into a statute from which it is conspicuously absent, and in light of that absence we find Ford‘s position untenable.
III. CONCLUSION
Congress was faced in 1977 with the task of accommodating a number of different state and federal interests. It seems to have decided to accomplish that task by permitting California (and Section 177
Accordingly, the Administrator‘s determination with regard to nationwide sale of California cars is
Affirmed.
MacKINNON, Circuit Judge, dissenting:
The issue in this case is whether California-equipped automobiles can be sold outside of California. Specifically, it is whether the Clean Air Act Amendments of 1977 were intended to put an end to the right of manufacturers to sell motor vehicles in states other than California when the vehicles are equipped with pollution control devices approved for California which satisfy standards that are “in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” In my judgment, the 1977 amendments cannot fairly be read to forbid such sales. If Congress had intended such a restrictive burden on interstate commerce it would have said so. It did not.
I
The Administrator‘s position that he is powerless to permit the sale of California-equipped motor vehicles outside California primarily rests on his misconceptions of the impact of the 1977 amendments on section 209,
Before 1977,
The intent of this amendment, however, was not to allow California to relax its rigorous emissions program or to abandon the unique role it occupies in emissions control. Quite the contrary, Congress intended California to press its efforts at combatting emissions from motor vehicles and to continue its status as a pioneer in such efforts. The only reason for the change in the language of Section 209 was to permit California to adopt standards for oxides of nitrogen considerably more stringent than the applicable federal standards; Congress recognized the “theoretical possibility” that under the original section 209 (§ 208 of the 1967 Act, 81 Stat. 501) this might not be technologically feasible if California were bound by the stringent carbon monoxide standard.4
The Administrator here focuses solely on the fact that California‘s carbon monoxide standard is lower than the federal level and therеfore concludes that California-equipped vehicles do not meet federal standards. But this reasoning ignores the more stringent standard for oxides of nitrogen, and, more important, completely neglects the fact that the California standards are in the aggregate held to be at least as protective of public health and welfare as the federal standards. The overall (aggregate) protectiveness of the California standards as measured by the overall protectiveness of the federal standards is the key. The Administrator‘s decision to waive preemption of the federal standards indicates that he can find no evidence that the California standards are not in the aggregate at least as protective of public health and welfare as applicable federal standards. To say that an amendment designed to strengthen California‘s emission control program—a program which has consistently run ahead of federal efforts—somehow diminishes the effectiveness of the California standards vis-a-vis the federal standards is to read intо the amendments a conclusion that Congress never expressed.
II
If anything, the 1977 amendments indicate that Congress regarded the California standards to be superior to federal standards. In section 177 of the Act (
III
The Administrator regards as “critical” the language in section 209(b)(3), which provides that “[i]n the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver granted under [§ 209(b)(1)], compliance with such State standards shall be treated as compliance with applicable Federal standards for purposes of this subchapter.”
The provision refers only to motor vehicles, not to states. Before 1977, all motor vehicles which complied with the California
standards adopted pursuant to a waiver could be sold in all fifty statеs; as between the federal and California standards, the latter applied to these vehicles. If the vehicle is designed and certified to meet California standards, to my mind those standards apply to the motor vehicle, and pursuant to a waiver may be sold outside California. It is reasonable to construe the intent of Congress as recognizing that a motor vehicle that complies in the aggregate with federal standards in California should also be deemed as complying in the aggregate with federal standards elsewhere. The obvious purpose of section 209(b)(3) is to ensure that manufacturers will not be faced with meeting both federal and California standards. Because federal law requires a federal certificate of conformity as a condition precedent to the sale of motor vehicles, and because compliance with California‘s superior emissions control program may not precisely dovetail with federal requirements, some provision was needed to make a California certificate tantamount to a federal one. Section 209(b)(3) fulfills thаt need. The Administrator attempts to read the statute as though Congress had enacted that “compliance with such State standards shall be treated as compliance only in California with applicable Federal standards.” But Congress did not so legislate. Congress’ refusal to provide such a geographical limitation indicates it intended the provision to apply generally.
IV
On the Administrator‘s reading, California-equipped motor vehicles can only be
I respectfully dissent.
AMERICAN CYANAMID COMPANY, Petitioner, v. FOOD AND DRUG ADMINISTRATION and Joseph A. Califano, Secretary of Health, Education and Welfare et al., Respondents.
No. 77-1969.
United States Court of Appeals, District of Columbia Circuit.
Decided Aug. 21, 1979.
As Amended Aug. 23, 1979.
606 F.2d 1307
1977 House Report, supra note 4, at 302 (emphasis added). We note as well that an agency‘s contemporaneous interpretation of its own statute is not lightly to be ignored. Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968).once a waiver is granted to California, compliance with the State‘s standards is deemed to satisfy the Federal requirements in California.
S. Rep. 91-1196, 91st Cong., 2d Sess. 24 (1970).The automobile industry argued that writing standards into Federal law would not be ap propriate because California‘s problem of au tomotive air pollution was unique and that different degrees of control for different pol lutants would be needed to deal with prob lems in other areas of the nation.