MOTOR & EQUIPMENT MANUFACTURERS ASSOCIATION, et al., Petitioners, v. Mary D. NICHOLS, Assistant Administrator and Environmental Protection Agency, Respondents, American Automobile Manufacturers Association, et al., Intervenors. MOTOR & EQUIPMENT MANUFACTURERS ASSOCIATION, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, United States Environmental Protection Agency, Respondents, American Automobile Manufacturers Association and Association of International Automobile Manufacturers, Inc., Intervenors.
Nos. 96-1392 and 96-1397.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 22, 1998. Decided April 24, 1998.
142 F.3d 449 | 46 ERC 1417 | 330 U.S.App.D.C. 1 | 28 Envtl. L. Rep. 21,111
Michael J. Conlon argued the cause in No. 96-1392 for petitioners, with whom Marc L. Fleischaker, Donald B. Mitchell, Jr., Evan S. Stolove, John Russell Deane, III, Christopher J. Kersting, Basil J. Mezines and Michael T. Reid were on the briefs. Louis R. Marchese entered an appearance.
Michael J. Horowitz, Attorney, Environmental Protection Agency, argued the causes for respondents, with whom Lois J. Schiffer, Assistant Attorney General, U.S. Department of Justice, Jeffrey K. Lee, Attorney, and Jonathan Z. Cannon, General Counsel, Environmental Protection Agency, were on the brief. Karen L. Egbert, Attorney, U.S. Department of Justice, entered an appearance.
Clifford T. Lee, Deputy Attorney General, State of California, argued the cause in No. 96-1392 for intervenor California Air Resources Board, with whom Daniel E. Lungren, Attorney General, and Michael Terris, Senior Staff Counsel, California Air Resources Board, were on the brief.
John H. Beisner, John A. Rogovin, Martha Dye, Richard A. Penna, Howard E. Shapiro, V. Mark Slywynsky, Charles H. Lockwood and John T. Whatley were on the brief in No. 96-1392 for intervenors American Automobile Manufacturers Association and Association of International Automobile Manufacturers, Inc.
Marc L. Fleischaker argued the cause in No. 96-1397 for petitioners, with whom Donald B. Mitchell, Jr., Evan S. Stolove, John Russell Deane, III, Christopher J. Kersting, Basil J. Mezines, Michael J. Conlon and Michael T. Reid were on the briefs. Louis R. Marchese entered an appearance.
John H. Beisner argued the cause in No. 96-1397 for intervenors, with whom John A. Rogovin, Martha Dye, Richard A. Penna, Howard E. Shapiro, V. Mark Slywynsky, Charles H. Lockwood and John T. Whatley were on the brief.
Before: EDWARDS, Chief Judge, WALD and ROGERS, Circuit Judges.
ROGERS, Circuit Judge:
Petitioners contend that both the waiver decision and the deemed-to-comply rule run afoul of CAA
I.
A. The Clean Air Act
The Clean Air Act,
The California exception is intended “to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.” H.R. Rep. No. 95-294, at 301-02 (1977), quoted in Motor and Equip. Mfrs. Ass‘n, Inc. v. EPA, 627 F.2d 1095, 1110 (D.C. Cir. 1979) (“MEMA I“). However, California is required to determine that its standards will be “in the aggregate, at least as protective of public health and welfare as applicable Federal standards” before promulgating them.
These lights illuminate when the vehicle‘s monitoring system detects an engine malfunction. At the same time the light illuminates, trouble codes indicating the source of the problem are stored in the vehicle‘s computer, where they may be accessed by repair personnel, sometimes using a plug-in tool to aid in diagnosis.
Control of Air Pollution from New Motor Vehicles, 56 Fed. Reg. 48,272, 48,274 (1991) (proposed Sept. 24, 1991).
In 1990 Congress amended the CAA to require EPA to mandate and regulate the installation of OBDs in all new cars. See CAA Amendments, P.L. No. 101-549, § 202(m), 104 Stat. 2399 (codified at
requir[e] (subject to the provisions of
section 7542(c) of this title regarding the protection of methods or processes entitled to protection as trade secrets) manufacturers to provide promptly to any person engaged in the repairing or servicing of motor vehicles ... any and all information needed to make use of the emission control diagnostics system....
(A) that any connectors through which the emission control diagnostics system is accessed for inspection, diagnosis, service, or repair shall be standard and uniform on all motor vehicles and motor vehicle engines;
(B) that access to the emission control diagnostics system through such connectors shall be unrestricted and shall not require any access code or any device which is only available from a vehicle manufacturer; and
(C) that the output of the data from the emission control diagnostics system through such connectors shall be usable without the need for any unique decoding information or device.
Following the 1990 amendments, EPA promulgated an initial set of OBD regulations. It construed section 202(m)(4) to
require[ ] that OBD system information be unrestricted and accessible to anyone via standardized connectors without requiring access codes or any device only available from the manufacturer. Further, the OBD system information must be usable without need for any unique decoding information or device. To satisfy these mandates, EPA [required] that OBD systems conform to uniform industry standards ... and be accessible with the use of a standard hand-held diagnostic tool.
Control of Air Pollution from New Motor Vehicles, 58 Fed. Reg. 9468, 9471-72 (1993) (to be codified at 40 C.F.R. pt. 86). These regulations, however, did not include the “final requirements under which information ... would be made available to the service and repair industry.” Id. at 9468.
In 1995, EPA promulgated a “Service Information Rule” implementing section 202(m)(5). See Control of Air Pollution from New Motor Vehicles, 60 Fed. Reg. 40,474 (1995) (codified at 40 C.F.R. pts. 9, 86). In that rule, EPA “require[d] vehicle manufacturers to provide to the service and repair industry information necessary to service on-board diagnostic (OBD) systems and to perform other emission-related diagnosis and repair.” Id. at 40,474. EPA declined, however, to interpret the rule to require the dissemination of all OBD programming information. The agency concluded that under section 202(m)(5),
[m]anufacturers are only required to provide information in order for persons to service and repair vehicles. They are not required to provide recalibration information that is not needed to make emissions-related diagnosis and repairs, even if such information may be useful for the manufacture of aftermarket parts.
Id. at 40,479. EPA also concluded that “manufacturers should be allowed to develop and implement the systems which they believe are most secure, such as encryption systems.” Id. at 40,493.
B. California‘s OBD Regulations
California first required automobile manufacturers to install OBDs in new cars sold in the state in 1988—two years before Congress mandated the installation of OBDs in cars sold nationwide.7 It revised those regulations for use in 1994 model year cars (the “OBD II” regulations). The state expects the OBD II devices to detect misfires and monitor catalyst efficiency, evaporative systems, exhaust gas recirculation systems, fuel systems, oxygen sensors, secondary air systems, and electronic emission-related powertrain components, among other things. See 15 CAL. REG. L. REP. 124, 126 (1995).
California has long been concerned that OBDs could easily be disabled, altered, or replaced with parts manufactured by independent parts manufacturers in the aftermarket, negating their ability to restrict automobile emissions. For example, the state has evinced concern that the computer chips that control the OBDs could be replaced by “performance chips” that reset the operating parameters of the emissions controls imposed by the devices on automobile exhaust systems. See 56 Fed. Reg. at 48,276 (describing the effects of performance chips). In 1989 California‘s Air Resources Board (“CARB“) staff reported that “[a]ftermarket ‘performance chips’ ... usually alter the emission control system calibration and in many cases disable emission control equipment.”8 The report recommended that anti-tampering features be required for OBDs so that such chips could only be substituted with difficulty. Id. In 1992, CARB‘s staff reiterated its concern that “there are no straightforward means of regulating the use of” aftermarket chips, and accordingly explained that “the OBD II requires vehicle computer monitoring systems to be tamper-proof to help ensure that such chips cannot be used.” Letter from CARB to William Reilly, Administrator, EPA 4 (Sept. 15, 1992). The state therefore required that “[c]omputer-coded engine operating parameters” not be alterable without “specialized tools and procedures.”
Consequently, as of September 25, 1997, California‘s revised anti-tampering regulations read:
Computer-coded engine operating parameters shall not be changeable without the use of specialized tools and procedures (e.g., soldered or potted computer components or sealed (or soldered) computer enclosures). Subject to Executive Officer approval, manufacturers may exempt from this requirement those product lines which are unlikely to require protection. Criteria to be evaluated in making an exemption include, but are not limited to, current availability of performance chips, high performance capability of the vehicle, and sales volume.
C. The Deemed-to-Comply Rule
As part of the first federal OBD rule promulgated in 1993, EPA included its own anti-tampering regulations as well as a “deemed-to-comply” rule. See 58 Fed. Reg. at 9486. Under that rule, “[d]emonstration of compliance with California OBD II requirements [would] satisfy [EPA] requirements ... through the 1998 model year.” Id. EPA explained that “[f]or the 1994 through 1998 model years, [it would] enforce OBD requirements against either the California OBD II requirements ... or the Federal OBD requirements.” 58 Fed. Reg. at 9476. A number of aftermarket organizations promptly filed suit challenging these provisions. See Specialty Equip. Market Ass‘n v. Browner, No. 93-1277 (D.C. Cir. May 19, 1994). As a result of an agreement between the petitioners and EPA, however, both parties requested the court to issue an order declaring the anti-tampering provision of the final rule, and any reference to California‘s anti-tampering regulations, to be “vacated and ... void ab initio.” The court thereafter issued an order vacating the relevant provisions.
Following the settlement, EPA promulgated a revised final rule in 1995. The agency explained at the time, however, that it was
continuing to review its policy concerns regarding tampering. EPA may in the future determine that it is appropriate to promulgate new regulations to address these concerns. If the Agency determines that new regulations are appropriate, EPA will at that time publish a notice of proposed rulemaking addressing these concerns.
Control of Air Pollution From New Motor Vehicles, 60 Fed. Reg. 15,242, 15,245 (1995) (codified at 40 C.F.R. part 86).9 EPA therefore provided that demonstration of compliance with the 1995 version of California OBD II requirements would satisfy the federal OBD requirements, “except that compliance with
The 1996 rule now challenged by petitioners represents yet another effort by the agency to “promulgate[ ] appropriate revisions to federal OBD regulations [whereby] compliance with the recently revised [California] OBD II requirements will satisfy federal OBD.” Id. at 45,898. The 1996 rule provides that:
Demonstration of compliance with California OBD II requirements ... shall satisfy the requirements of this section through the 1998 model year except that compliance with
Title 13 California Code § 1968.1(d) , pertaining to tampering protection, is not required to satisfy the requirements of this section.
40 C.F.R. § 86.094-17(j) (1997). EPA explained: “[t]his final rulemaking allows manufacturers to comply with federal OBD requirements by optionally complying with the revised and recently adopted California OBD II regulations.” 61 Fed. Reg. at 45,899. Petitioners appealed, again pursuant to section 307(b) of the CAA. See
Before reaching the merits of the petitions, we address several justiciability issues raised by EPA.
A. Standing
First, EPA contends that petitioners lack standing to challenge the deemed-to-comply rule. Essentially, the agency focuses on causation and redressibility, maintaining that petitioners lack standing because EPA eliminated the requirement that manufacturers install anti-tampering measures in 1993. According to the agency, the challenged 1996 rule took no action either to permit or forbid the use of such anti-tampering measures on automobiles. Further, EPA notes, it expressly stated in the rulemaking leading to the 1996 rule that, “[it] is taking no action ... that has any effect on manufacturers [sic] legal requirement or ability voluntarily to equip vehicles with tampering protection measures.” 61 Fed. Reg. at 45,901. Regarding redressibility, neither a remand nor a reversal, EPA maintains, would affect the ability, legal or factual, of manufacturers to install anti-tampering measures on their vehicles.
The Supreme Court articulated a three-part Article III standing test in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). See also Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 102–04 (1998). To have constitutional standing, a petitioner first must have suffered an “actual or imminent,” as opposed to “conjectural or hypothetical,” “injury in fact.” Lujan, 504 U.S. at 560 (citations and internal quotations omitted). Second, the injury must be “fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court.” Id. at 560-61 (citations and internal quotations omitted). Third, it must be “likely” that the injury will be “redressed by a favorable decision.” Id. at 561; see also Common Cause v. FEC, 108 F.3d 413, 416 (D.C. Cir. 1997).
Petitioners satisfy the first prong of the Lujan test, which requires a concrete and particularized invasion of a legally protected interest. See Lujan, 504 U.S. at 560. They represent persons who manufacture, rebuild, or distribute parts that compete with the parts sold by original automobile manufacturers. “A competitor is adversely affected by and has a substantial interest in orders affecting the matter as to which he is a competitor.” Seaboard & Western Airlines v. Civil Aeronautics Bd., 181 F.2d 515, 518 (D.C. Cir. 1949). Petitioners’ aftermarket parts may be difficult to install in light of California‘s anti-tampering regulations as condoned by EPA. Difficult installation will presumably reduce the demand for petitioner‘s parts, while increasing the demand for parts made by the automobile manufacturers that installed the anti-tampering devices. Petitioners are thus “likely to be financially injured” by EPA‘s deemed-to-comply rule. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940). “[W]hen a challenged agency action authorizes allegedly illegal [activity] that will almost surely cause [a] petitioner to lose business,” that petitioner has standing to make a claim. El Paso Natural Gas Co. v. FERC, 50 F.3d 23, 27 (D.C. Cir. 1995); see also Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152-53 (1970). Hence, the only questions are whether petitioners meet the second and third prongs of the Lujan test, for Article III standing purposes, or are prudentially barred.
The EPA contends that the injury suffered by petitioners was not caused by and cannot be remedied by the agency because it is attributable to the automobile manufacturers, a “third party not before the court.” Lujan, 504 U.S. at 560. Yet petitioners’ injury is fairly traceable to EPA‘s rulemaking, satisfying the second prong of the Lujan test. See id. at 560. EPA itself has acknowledged that its deemed-to-comply rule has resulted in an almost unanimous decision by major manufacturers to install OBDs that comply with California‘s regulations. In a “Dear Manufacturer” letter of November 7, 1997, EPA observed that “only one major automobile manufacturer is selling vehicles certified specifically to the EPA OBD requirements rather than choosing the California OBD II option.” Letter from Jane Armstrong, Director, EPA Vehicle Programs and Compliance Division 1 (Nov. 7, 1997). The deemed-to-comply rule has had such an effect because it creates a tremendous incentive for manufacturers to install OBDs that comply with California‘s regulations in all their cars. By doing so, they need only make one kind of each car they sell instead of two kinds, one of which would be for sale in states that follow California‘s OBD regulations, and the other for sale in states that follow federal OBD regulations. If the manufacturers were not permitted to use California‘s OBD II system in the automobiles they make for sale in the states governed by the federal OBD regulations, then fewer cars would be sold with the allegedly illegal California OBDs. There is therefore no doubt that “the unfettered choices made by independent actors have been ... made in such manner as to produce causation.” Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 417 (D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 562 (internal quotation marks omitted)).
In addition to Article III standing, petitioners have shown that there is no prudential reason to deny them their day in court. See National Credit Union Admin. v. First National Bank & Trust Co. (“NCUA“), 522 U.S. 479, 488 (1998). Under the
B. Mootness
Somewhat more persuasive is EPA‘s contention that the 1997 revision of California‘s OBDs regulations moot portions of petitioners’ challenge to the waiver. California no longer requires manufacturers to “employ proven methods to deter unauthorized reprogramming which may include copyrightable executable routines or other methods.”
Guided by MEMA I‘s instruction that the court must not “ignore the public record of the CARB‘s amendments” lest it “in effect be deciding a hypothetical question,” we conclude that petitioners’ challenges based on the assumption that California‘s regulations would require access to an off-site computer for maintenance beginning with 1999 model-year cars are moot. MEMA I, 627 F.2d at 1104 n. 18. The elimination of that requirement constitutes “a fundamental change in the state of affairs” that has warranted resort by the court to the mootness doctrine in similar circumstances. Id.
We conclude that petitioners’ challenge to the waiver rule is not entirely moot because two sources of alleged regulatory injury have not been addressed by the 1997 amendments. First, California‘s revised regulations still require “specialized tools and procedures” to access or change “computer coded engine operating parameters.”
Second, California has been certifying cars with OBD II systems since the 1994 model year. Until the 1997 revisions, each car sold with an OBD II system had to “employ proven methods to deter unauthorized reprogramming which may include copyrightable executable routines or other methods.”
Furthermore, EPA‘s interpretation of section 209(b)—specifically that the waiver provision does not require compliance with section 202(m)—is likely to affect its evaluation of all California waivers. Because petitioners maintain that the waiver process requires compliance with section 202(m), they are “more broadly ... attacking the standards” that the EPA applies in its review of waiver requests. Defenders of Wildlife, Inc. v. Endangered Species Scientific Auth., 659 F.2d 168, 175 (D.C. Cir. 1981). These standards have not been affected by the 1997 revisions.
C. Timeliness
EPA also contends that petitioners’ challenges to its deemed-to-comply rule are untimely, and its argument is not without some force. Appeals from final decisions made under the Clean Air Act must be filed within sixty days of the date of the decision‘s publication in the Federal Register. See
As this chronology suggests, it would have been fruitless for petitioners to have appealed the 1995 rule at the very time that the agency was affirmatively responding to petitioners’ comments. Had they filed such an appeal, the agency likely would have argued that it was not ripe or would have sought a remand or a stay in light of its then-present intention of modifying the rule in response to petitioners’ comments. So viewed, it was not until EPA promulgated a revised final rule in 1996 that petitioners could have perfected an appeal, and they have done so.
Furthermore, the subjects covered by California‘s regulations, which EPA has deemed to comply with federal law, were revised between 1993, the first year that EPA promulgated an OBD regulation, and the deemed-to-comply rulemaking in the instant appeal. For example, California‘s earlier regulations required “reprogrammable computer code systems” to include “proven write-protect features which may include copyrightable executable routines or other methods.”
Accordingly, we conclude that EPA‘s unsuccessful prior efforts to promulgate a deemed-to-comply rule concerning a substantially different set of California regulations do not render petitioners’ challenge to this rule untimely.
Second, EPA contends that petitioners should have challenged its discussion of section 202(m)(4) in the 1993 OBD rule. In that rule, the agency interpreted subsection (m)(4) to require OBD system information to be “unrestricted and accessible to anyone via standardized connectors without requiring access codes or any device only available from the manufacturer.” 58 Fed. Reg. at 9471-72. EPA thus concluded that OBD systems had to “be accessible with the use of a standard hand-held diagnostic tool.” Id. at 9472. EPA maintains that petitioners should have attempted to persuade it, at that point, to interpret subsection (m)(4) to preclude any regulation permitting manufacturers to install anti-tampering devices on their OBDs. Although the question is close, we conclude that this argument is also unconvincing. Any such challenge to the agency‘s interpretation of subsection (m)(4) regarding anti-tampering devices would not have been ripe for this court‘s review, since EPA agreed to an order declaring its anti-tampering regulations void before a challenge could be made. See Specialty Equip. Market Ass‘n v. Browner, No. 93-1277 (D.C. Cir. May 19, 1994). Petitioners are not expected to challenge an agency‘s interpretation that has not been implemented by any regulation. See U.S. West, Inc. v. FCC, 778 F.2d 23, 27-28 (D.C. Cir. 1985). “A time limitation on petitions for judicial review ... can run only against challenges ripe for review.” Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 149 (D.C. Cir. 1982). A challenge that would have been unripe if it had been brought earlier can hardly be characterized as untimely now.12
Undoubtedly, petitioners might have challenged the agency‘s authority from the beginning, as EPA suggests, but as the evolution of the 1996 deemed-to-comply rule demonstrates, there would have been no occasion to address their contentions until the instant appeal. The agency, confronted with a challenge to its authority, modified its proposed rule in response to petitioners’ substantive concerns and thereby postponed confronting the issue of its authority.
D. Exhaustion
We agree, however, that one of petitioners’ contentions is not properly before the court. Petitioners contend that the deemed-to-comply rule “nationalizes” the “California car” because it changes the emissions standards that Congress set for the remaining forty-nine states.
The CAA provides that “only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment ... may be raised during judicial review.”
Turning to the merits, petitioners contend that California‘s anti-tampering provisions are illegal under
A. Section 202(m) and the Waiver Requirement
Petitioners make a textual argument, relying on internal cross-references within section 202 in an effort to show that subsection (m)‘s information and access requirements must be factored into the agency‘s determination whether to grant California‘s waiver application. There are several problems with their approach.
First, section 209(b) sets forth the only waiver standards with which California must comply. California must conclude that its standards “will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards” to obtain a waiver.
Petitioners do not contend that California‘s OBD II regulations directly violated section 202(a), which establishes the general authority of the EPA Administrator to prescribe federal emissions standards by regulation. See
Second, the agency‘s long-standing interpretation and the legislative history run counter to petitioners’ contention that to obtain a waiver California must also comply with section 202(m) because sections 202(a) and 202(m) cross-reference each other. Under subsection (a), the EPA Administrator is required to prescribe and revise regulations “in accordance with the provisions of this section,” including, in petitioners’ view, subsection (m). Id.
The agency‘s longstanding interpretation that section 209(b) does not require California to establish perfect compliance with the CAA to obtain a waiver is particularly plausible because section 209(b) explicitly requires only that the state‘s standards “be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.”
Third, it would appear virtually impossible for California to exercise broad discretion if it had to comply with every subsection of section 202 that cross-referenced subsection (a). See, e.g.,
It is true that, in addition to the lead-time and technological feasibility requirements set forth in section 202(a), California must not arbitrarily and capriciously conclude that its standards are “at least as protective of health and welfare as applicable Federal standards.”
B. Section 202(m) Compliance
Nevertheless, we must consider whether California‘s OBD II regulations comply with section 202(m) for two reasons. First, in recognition of the serious consequences that would follow if California‘s regulations did not comply with section 202(m), the agency considered whether California‘s OBD II standards met the section‘s requirements in evaluating its waiver application. See EPA Air Docket A-90-28, No. V-B-1.
section 202(m)(4) and (5) were [sic] designed to allow the aftermarket to receive information that Congress believed was necessary for aftermarket repair and diagnosis. If California‘s regulations are, as aftermarket commentators suggest, clearly contrary to the intent of Congress, then EPA‘s granting of a waiver to California would effectively eliminate this key Congressional provision in California (and any other state that enacts California‘s regulations through section 177). Given the substantial implications of this, EPA must tread carefully.
Id. at 47. Second, EPA was obligated to determine whether California‘s OBD II regulations complied with section 202(m) when it promulgated its deemed-to-comply rule. By making those regulations a federal option, the agency was required to evaluate whether they met the statutory requirements for federal regulations. Hence, the court is not confronted with a situation in which, by means of the California waiver and section 177‘s provision allowing other states to opt into the California system, the protections provided by subsections (m)(4) and (5) would be eliminated by widespread adoption of California‘s rules. See
Petitioners contend that California‘s OBD II regulations violate
Although the plain language of
We conclude that EPA‘s interpretation of subsection (m)(5) reasonably comports not only with the statute‘s discussion of “information needed,” but also with its protection of the trade secrets of automobile manufacturers. Easy access to the computer programs underlying the OBDs and protected by anti-tampering devices would make protection of the intellectual property contained therein difficult, without making the servicing of vehicles containing OBDs any easier. See 60 Fed. Reg. at 40,492. Congress sought to balance the need of all mechanics for information from the devices, thereby preserving competition with service and repair shops unaffiliated with manufacturers, with the right of those manufacturers to protect their trade secrets, promoting further innovation in OBD technology. See, e.g., 136 CONG. REC. 5391-92 (1990) (Statements of Sens. Baucus, Chafee, and Gore). Subsection (m)(5) therefore requires manufacturers to turn over service information, but not trade secrets, to independent mechanics. See
IV.
Petitioners further contend that section 207‘s warranty provisions invalidate California‘s anti-tampering regulations. Section 207 requires all “manufacturer[s] of each new motor vehicle and new motor vehicle engine [to] warrant to the ultimate purchaser and each subsequent purchaser” of an automobile that the automobile complies with section 202 of the Act.
Petitioners appear, however, to misperceive the legal link between section 207 and section 209, which sets forth the standards that EPA must apply to California‘s waiver applications. Although EPA “must be sensitive to the anti-competitive concerns Congress expressed in” section 207, it “has no obligation under section 209(b) to guarantee that California‘s regulations are without anti-competitive implications.” MEMA v. EPA (“MEMA II“), 627 F.2d 1128, 1131 (D.C. Cir. 1979). California is not required to comply with section 207 to obtain a waiver, see
Finally, petitioners contend that EPA failed to comply with two statutory provisions requiring the analysis of the effects of a proposed rule on certain small entities such as businesses.
On neither can petitioners prevail. First, petitioners contend that EPA failed to comply with the Regulatory Flexibility Act (“RFA“),
EPA concluded when it promulgated its final rule that, “[t]his rule will not have a significant adverse economic impact on a substantial number of small businesses” and, therefore, did not conduct a regulatory flexibility analysis on those entities. 61 Fed. Reg. at 45,902. The RFA does not contemplate an analysis in such situations. See
Second, petitioners contend that EPA failed to comply with
Accordingly, we dismiss so much of the petitions as are moot as a result of the 1997 revisions to California‘s regulations and as are not properly before the court, and we deny the remaining portions of the petitions.