Plaintiffs associations of American and foreign automobile manufacturers appeal from the summary judgment dismissal of the only remaining count of their action against the New York State Department of Environmental Conservation (DEC) and its Commissioner, Langdon Marsh, by the United States District Court for the Northern District of New York (McAvoy, C.J.). Plaintiffs have sought through' this litigation to prevent the adoption by New York State of regulatory standards embodying California’s strict auto emission requirements.
The federal Clean Air Act, 42 U.S.C. §§ 7401-7671q (1988 & Supp. III 1991) (CAA or the Act), permits states to escape federal preemption of auto emissions standards by adopting California’s standards. New York has done so. But it has declined to adopt California regulations mandating the sale of clean, low-sulfur fuels that aid in the reduction of pollution from auto éxhaust. It is plaintiffs’ contention that the high-sulfur content of gasoline commercially available in New York will corrupt the performance of catalytic converters installed in motor vehicles that are designed to comply with California’s regulations. They insist they are therefore forced to redesign the exhaust systems on new automobiles, and that this result is one Congress specifically prohibited when it enacted the 1990 amendments to the Clean Air Act.
This appeal obliges us to reexamine the competing goals of Congress’ clean áir legislation, one of which is to protect manufacturers from regulatory chaos by preventing states from enacting multiple contradictory emissions standards, see H.R.Rep. No. 728, 90th Cong., 1st Sess. 21 (1967) U.S.Code Cong. & Admin.News 1967, p. 1938, and the other of which is to safeguard public health by reducing the levels of toxic pollutants spouting from automobile tailpipes into the air we all must breathe. In striking a balance between these goals, Congress elected not to link states’ fuel standards to their emissions programs. For the reasons discussed below, we think this legislative balance precludes plaintiffs’ claim. Hence, we affirm the judgment of the district court.
BACKGROUND
A thorough discussion of the regulatory and legislative developments giving rise to this litigation appears in our earlier decision on this matter, Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. New York State
A. State and Federal Regulations
In general, state regulation of automotive tailpipe emissions is preempted by the federal Clean Air Act. CAA § 209(a), 42 U.S.C. § 7543(a). A unique exception was made for California, because of that state’s early efforts to control its particularly severe air quality problems. CAA § 209(b) (as amended), 42 U.S.C. § 7543(b); see S.Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) (explaining origin of preemption provision). Under § 209(b), California may adopt its own emissions standards, subject to approval by the Environmental Protection Agency (EPA), the agency responsible for enforcing the federal standards. 42 U.S.C. § 7543(b). California’s power to enforce its own standards through certification and recall procedures parallel to but harsher than the EPA’s means in effect that manufacturers may be forced to design two separate versions of a given vehicle — a “California” car, and a “federal” or “49-state” car.' The Act also generally preempts state regulation of motor vehicle fuels, although states may establish such regulations subject to EPA approval. See § 211(c)(4)(A), (C), 42 U.S.C. § 7545(c)(4)(A), (C). Here too, California is exempt from federal preemption: it may regulate fuel standards without seeking approval from the EPA. See § 211(c)(4)(B), 42 U.S.C. § 7545(c)(4)(B).
In 1977 Congress added § 177 to the Act to permit other states desiring more stringent air quality control measures to “piggyback” on California’s exemption by adopting emissions control standards “identical to the California standards for which a waiver has been granted.” Clean Air Act Amendments of 1977, Pub.L. No. 95-95, § 129(b), 91 Stat. 685, 745, 750 (codified as amended at 42 U.S.C. § 7507). As part of the 1990 amendments to the Clean Air Act — and out of concern for the potential economic burden on the auto industry — Congress strengthened the “identicality” provision by adding new language to § 177. The new language specifies that a “piggybacking” state may neither limit the sale of California-certified vehicles nor “take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a ‘third vehicle’) or otherwise create such a ‘third vehicle’.” Clean Air Act Amendments of 1990, Pub.L. No. 101-549, § 232, 104 Stat. 2399, 2529 (emphasis added) (codified at 42 U.S.C. § 7507).
In September 1990 the California Air Resources Board (CARB) adopted an innovative air quality program treating vehicle emissions and fuels as two components of a single regulatory system — the Low-Emission Vehicles/Clean Fuels (LEV/CF) program. CARB Res. 90-58 (Sept. 28, 1990); Cal.Code Regs, tit. 13, §§ 1950-2317 (codification of LEV and CF regulations); see also Mobile Source Div. & Stationary Source Div., CARB, Initial Statement of Proposed Rulemaking for Low-Emission Vehicles .and Clean Fuels (August 13, 1990). New York adopted the low emission vehicles component of California’s program through DEC regulations effective in May of 1992. See N.Y. Comp.Codes R. & Regs. tit. 6, pt. 218. However, New York did not adopt California’s fuel program and continues to permit the sale and use of high-sulfur gasoline.
B. High-Sulfur Fuel and the Third Vehicle Problem
Gasoline currently available in New York contains very high levels of sulfur. For example, a survey conducted by plaintiffs in the' summer of 1991 found that the average sulfur levels for unleaded regular gasoline sold in New York City approached 500 parts per million (ppm), with peak levels of over 700 ppm. California’s “Phase 2” gasoline specifications, in contrast, mandate a maximum sulfur content of 80 ppm. See Cal.Code Regs, tit. 13, § 2262.2(a). Although the Clean Air Act requires, in certain severely polluted counties of New York (those classified by the
Because auto manufacturers design engines to comply with California’s emissions regulations, the sulfur content of the fuel on which the vehicle will operate affects their engineering choices. High sulfur content in fuel “poisons” the noble metals that line catalytic converters, directly resulting in decreased efficiency and increased emissions. Palladium, a noble metal with certain properties particularly desirable for use in catalytic systems, is especially sensitive to sulfur poisoning during low temperature operation. Gregory S. Sims, Durability Characteristics of Palladium Catalysts, Society of Automotive Engineers Report No. 912369, at 3, 8-9 (1991). Therefore, it was the projected commercial availability of low-sulfur gasoline that enabled some auto designers to elect to use palladium converters on California ears.
Because such emissions control systems are less effective when operated on high-sulfur fuel, some manufacturers have concluded that they would have to redesign these systems in order to ensure compliance with an in-use testing program and an inspection and maintenance testing program that may be implemented in New York. In-use compliance testing measures a small sample of a particular engine family to see if after tens of thousands of miles of actual road use these cars meet “in-use” standards set at or very close to the ones to which they were originally certified. In-use testing is also known as recall testing because recalls may be ordered on the basis of test results. Inspection and maintenance testing is the periodic emissions test that cars in ozone non-attainment areas undergo. Its purpose is to detect those few individual cars whose emissions control systems have failed and to require their owners to undertake repairs. To satisfy in-use testing and inspection and maintenance standards, the manufacturers contend, they will have to change the type, location or precious metal loadings of catalytic converters to make them less sensitive to sulfur, costing millions and requiring new emission certificates from California.
A second design choice influenced by commercial fuel availability is the method of mounting the catalytic converter. The General Motors Corporation (GM) tells us it designed its California car with an air-tight welded mounting assembly to minimize and control vibration, but that its New York version of the ear will require a high-specification flanged and bolted mounting system to promote ease of catalytic converter replacement. This is because GM anticipates having to replace more catalytic converters on California cars sold and operated in New York, in response to the onboard diagnostic system’s (a vehicle’s computer system that monitors the performance of emissions control systems) misleading activation of a dashboard malfunction indicator light required by California’s — and hence by New York’s — low emission vehicles program.
Studies conducted by GM suggest such onboard diagnostic systems will falsely illuminate at high mileage when a vehicle has been operated on high-sulfur fuel. The DEC believes these studies are flawed. See MVMA IV,
Manufacturers also urge that to comply with California standards, vehicles that use welded rather than bolted converter assemblies achieve leak-free systems that cannot
Although manufacturers have indicated they will not inform California purchasers that their cars should be operated only in California or on California fuels, they have admitted that modifications will be necessary for a class of California cars that will migrate from California or use cheaper non-California gas when operated in California. MVMA,
C. Prior Proceedings and the District Court’s Grant of Summary Judgment
Plaintiffs filed suit on July 9,1992 claiming that New York’s emissions standards violated the Clean Air Act on six counts and seeking permanent injunctive relief. Five of the six counts were disposed of in Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. New York State Dep’t of Envtl. Conservation,
DISCUSSION
Summary judgment is appropriate where there are no material issues of fact in dispute. See Fed.R.Civ.P. 56(c). Our role is to determine if the district court properly held there were no genuine factual issues for trial regarding whether New York’s adoption of California’s low emission vehicles plan, without adopting its low-sulfur fuel scheme, compelled plaintiffs to create a third vehicle. In examining this question we look at the evidence in a light most favorable to plaintiffs, the nonmoving parties, and apply a de novo standard of review to ensure that the substantive law was correctly applied. See Cement & Concrete Workers Dist. Council Welfare Fund v. Lollo,
I High-Sulfur Fuel and New York Enforcement
Plaintiffs maintain that New York’s promulgation of California’s low emission vehicles regulations compels New York to adopt stricter in-use testing and inspection and maintenance programs to monitor and enforce compliance with the adopted standards over the life of a vehicle. They contend that such programs will violate § 177’s third vehicle prohibition because manufacturers will be forced to spend millions redesigning the emission systems of low emission California cars sold -in New York, that is, change the precious metal loadings of catalytic converters or move their location on the vehicle, to overcome the effects of higher sulfur fuel on such vehicles and allow them to pass those
A dispute is ripe for adjudication when there is “a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Babbitt v. United Farm Workers Nat’l Union,
The ripeness doctrine prevents the courts, “through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also [protects] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner,
Plaintiffs insist that New York’s adoption of the low emission vehicles standards will also require it to adopt a stricter testing program, which will result in noncompliance with the Clean Air Act. This claim is ripe, plaintiffs declare, because the immediate effect of New York’s emissions standards is that manufacturers must produce cars beginning in the 1996 model year that will pass the tests. They allege additionally that making manufacturers wait to challenge these regulations only after the vehicles have been manufactured is not only contrary to ripeness principles, but .also would defeat § 177’s purpose of saving manufacturers from having to produce a third vehicle. While New York has announced in-use standards, it has not implemented an in-use testing program. See 6 N.Y. Comp. Codes R. & Regs. tit. 6, pt. 218-2.2(a)(1) (adopting Cal.Code Regs. tit. 13, § 1960.1 certification and in-use emission standards). Although plaintiffs speculate that New York will pass the necessary legislation, promulgate the appropriate regulations, and build and staff testing facilities, such programs do not presently exist. Moreover, New York currently relies on the results of California’s in-use tests. See MVMA IV,
Plaintiffs’ contentions regarding inspection and maintenance programs are also problematic. Plaintiffs assert that New York is required to enact inspection and maintenance regulations, but such testing will not necessarily be the same as that in California because a state’s strategy for enforcing emissions standards is not itself a “standard” under § 177. Although the “piggyback” provision requires states to adopt standards identical to those in place in California to avoid preemption, there is no such identicality requirement for the mechanism employed to enforce those standards. Although the Clean Air Act requires an “enhanced” inspection and maintenance program to reduce ve-
Because plaintiffs’ arguments depend upon the effects of regulatory choices to be made by New York in the future, the district court properly declined to adjudicate this claim insofar as it relates to compelling the creation of a third vehicle. See Pacific Gas & Elec.,
The district court also properly noted that New York is entitled to the presumption that if and when it enacts inspection and maintenance and recall programs, it will do so in compliance with § 177’s third car prohibition. MVMA IV,
Finally, we note that plaintiffs have no standing to argue that New York’s enactment of the California standards without the testing programs itself constitutes a violation of § 177. Unless a litigant suffers a personal injury that could be redressed by a decision in its favor, there is no standing to assert the claim. Lujan v. Defenders of Wildlife,
II High-Sulfur Fuel, Onboard Diagnostic Systems, and Marketing Choices
Plaintiffs’ second “third vehicle” argument is based upon the effect of high-sulfur fuels on catalytic converters. As described above, the manufacturers maintain that the operation of California cars on New York’s high-sulfur fuel will cause the onboard diagnostic system to illuminate the malfunction indicator light inaccurately. Because it will not be possible to ascertain whether a particular catalytic converter has actually failed, plaintiffs contend, the easiest and least costly approach would be to replace the catalytic converters in all such cars. Manufacturers point out that while the emission systems of California vehicles will be welded, those sold in New York will be bolted and flanged in anticipation of possibly frequent catalytic converter replacement. Manufacturers contend this circumstance gives rise to a third vehicle violation because such alterations to the emission control system are not marketing choices intended to satisfy customers or increase sales, but rather are measures forced upon them to comply with the in-use requirements of DEC’s standards.
We reject this argument because nothing in the present New York low emission vehicles program mandates that manufacturers
The district court correctly ruled that flanged mounting is simply an appealing marketing preference that might be adopted by some manufacturers because it would save consumer cost and time and that, in this way, such mounting would be comparable to the design decision of installing a more powerful heater we addressed in MVMA III. Plaintiffs maintained in MVMA III that the adoption of zero-emission vehicles requirements created a third vehicle because it required the installation of a more powerful heater in New York vehicles than California cars due to the colder climate. See
Similarly, the minimal changes made here' do not provide the basis for a third vehicle claim. The proposed use of a flanged assembly rather than a welded assembly is not a profound functional change to the emissions control system; instead it is a variation on the method of attaching a catalytic converter to the underside of an automobile. As such, it is a much less significant alteration than the installation of an entirely new heating system. Nor is a mere alteration of the method of attaching the converter the type of “emission control feature” alteration alluded to in MVMA III. Id. Thus, New York cannot be held by its regulation to have violated the third vehicle prohibition, if plaintiffs choose to use a flanged mounting as opposed to a welded mounting.
Second, the district court properly concluded, by analogy to GM’s piecemeal approach to California vehicles permanently leaving that state and subsequently operating on cheaper non-California fuels, that the plaintiffs are not compelled to change from a welded to a bolted converter. These migrating vehicles — California-certified vehicles in New York and elsewhere — will be subject to the same alleged problems that plaintiffs characterize as requiring the creation of a third vehicle. Yet, manufacturers have made a business decision not to change from a welded to bolted converter on these cars. GM, the only manufacturer maintaining that it will design an alternative method of attaching the emissions control system on future vehicles, has chosen to deal with the migrating vehicles on a case-by-case basis. See MVMA IV,
Ill The Effects of High-Sulfur Fuel Generally and the Legislative History
The district court’s finding that fuel-related problems could never, as a matter of law, result in a third vehicle, see MVMA IV,
Summary judgment for the defendants was proper because a third vehicle claim is not viable if it is based on a differ
The district court properly relied on our prior characterization of the third vehicle prohibition as “‘designed to. reinforce the identieality requirement’ of the emission standards adoption provision.” MVMA IV,
IV Discovery
Finally, manufacturers declare it was an abuse of discretion to refuse to permit them to proceed with scheduled depositions of key witnesses with information central to the summary judgment motion. They also insist that the district court, with respect to whether alleged design modifications would require re-certification under the California regulations, improperly gave dispositive weight to the disputed affidavit of California Air Resources Board engineer Due Nguyen and “disregarded the ... much more definitive Declarations by GM’s manager of emissions compliance.” They further aver that the district court erred by resolving disputed factual matters in favor of the defendants.
This argument mischaracterizes the district court’s decision. It did not abuse its discretion in denying plaintiffs’ motion to proceed with depositions to flesh out the certification issue because that issue was not material to the case. It considered the substance of plaintiffs’ and defendants’ affidavits on the subject, only to conclude that it need
CONCLUSION
For the foregoing reasons, we affirm the district court’s order dismissing count two of the plaintiffs’ complaint and granting summary judgment in favor of defendants.