Scope of Federal Preemption of California Mobile Source Standards Interpretation
April 7, 2010In a decision that is significant for vehicle manufacturers, fleet owners/operators, and truckers, nothing in the federal Clean Air Act (CAA) precludes the State of California from regulating emissions from mobile sources that merely enter the State, as opposed to being manufactured, sold, or based there, according to a recent decision from the United States Court of Appeals for the District of Columbia Circuit (American Trucking Ass'ns, Inc. et al. v. EPA, No. 09-1090 (D.C. Cir., April 2, 2010).
Background
The case involved an industry challenge to the California Air Resources Board's (CARB) 2004 rule to reduce diesel particulate matter emissions from certain in-use non-road engines - specifically, emissions associated with so-called transportation refrigeration units, or TRUs, that are powered by diesel engines. TRUs are gasoline and diesel powered cooling units that are installed on vehicles used to transport perishable commodities, such as fruits and dairy products. They are found on vans, trucks, trailers, and railcars.
The CARB rule requires all TRUs carried on covered vehicles operating in California, not just those based in California, to comply with specified emission standards. (For more background information about CARB's TRU rule, see http://www.arb.ca.gov/diesel/tru.htm).
Section 209 of the CAA authorizes California to adopt and enforce its own mobile source emission control standards for both onroad and non-road motor vehicles as long as certain procedural requirements are met, including EPA approval of the same. Effectively, section 209 preempts State mobile source controls, but then exempts California from federal preemption in limited circumstances. Section 209 also authorizes other States to adopt California standards in some circumstances.
What the Court Said About In-Use Vehicle Controls
For purposes of this alert, we are most interested in what the D.C. Circuit said regarding whether section 209 limits in anyway the ability of California to regulate emissions from mobile sources that merely operate in the State, as opposed to those that are actually based there. The court found "nothing about [CARB's] approach to be inconsistent with the federal statutory scheme" (Opinion, page 9).
Although the decision dealt with non-road engines, on-road vehicles presumably would be held to the same legal standard because the operative language of section 209 pertaining to on-road vehicles (section 209(a)) is functionally identical to that which applies to non-road vehicles (section 209(e)).
Commerce Clause claims were not at issue in the litigation. The case only dealt with the CAA. In an appropriate future case involving California efforts to regulate mobile sources that merely operate in the State, we would expect Commerce Clause claims to be advanced, too.
What May Be Next for Planes, Trains and Automobiles
Read broadly, the decision suggests that nothing in the CAA precludes California from regulating mobile sources that operate in the State regardless of where they are based. Because of the way the CAA is written (and section 209 in particular), this likely means that on-road vehicles based outside of California could be similarly regulated, too. Indeed, CARB already has issued regulations that apply to in-use, on-road heavy-duty diesel vehicles. (For more background information about CARB's in-use trucking rule, see http://www.arb.ca.gov/msprog/onrdiesel/onrdiesel.htm.)
What about aircraft? The decision should not be interpreted to liberalize efforts by California (or other States) to regulate aircraft emissions. This is because section 233 of the CAA, which governs State standards that apply to aircraft or aircraft engines, does not contain the carve outs from federal preemption that are found in section 209.
What about locomotives? The decision also should not be interpreted to liberalize State efforts to regulate train emissions, at least with respect to emission standards that might apply to new locomotives or new engines used in locomotives. This is because section 209(e)(1)(B) of the CAA effectively bans the States from issuing such regulations.