Rule2021-28115
Corporate Average Fuel Economy (CAFE) Preemption
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 29, 2021
Effective
January 28, 2022
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
This document finalizes NHTSA's proposal to repeal in full "The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program," published September 27, 2019 (SAFE I Rule), in which NHTSA codified regulatory text and made additional pronouncements regarding the preemption of state and local laws related to fuel economy standards. NHTSA originally proposed to repeal the SAFE I Rule in a Notice of Proposed Rulemaking entitled "Corporate Average Fuel Economy Preemption," which was published on May 12, 2021. After evaluating all public comments submitted for this Proposal, the Agency is finalizing the Proposal. As such, the Agency is repealing all regulatory text and appendices promulgated in the SAFE I Rule. In doing so, the Agency underscores that any positions announced in preambulatory statements of prior NHTSA rulemakings, including in the SAFE I Rule, which purported to define the scope of preemption under the Energy Policy and Conservation Act (EPCA), do not reflect the Agency's reconsidered understanding of its proper role in matters of EPCA preemption. Through this final rule, NHTSA makes clear that no prior regulations or positions of the Agency reflect ongoing NHTSA views on the scope of preemption of states or local jurisdictions under EPCA.
Full Text
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[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Rules and Regulations]
[Pages 74236-74267]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-28115]
[[Page 74235]]
Vol. 86
Wednesday,
No. 247
December 29, 2021
Part II
Department of Transportation
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National Highway Traffic Safety Administration
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49 CFR Parts 531 and 533
Corporate Average Fuel Economy (CAFE) Preemption; Final Rule
Federal Register / Vol. 86 , No. 247 / Wednesday, December 29, 2021 /
Rules and Regulations
[[Page 74236]]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 531 and 533
[Docket No. NHTSA-2021-0030]
RIN 2127-AM33
Corporate Average Fuel Economy (CAFE) Preemption
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This document finalizes NHTSA's proposal to repeal in full
``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One:
One National Program,'' published September 27, 2019 (SAFE I Rule), in
which NHTSA codified regulatory text and made additional pronouncements
regarding the preemption of state and local laws related to fuel
economy standards. NHTSA originally proposed to repeal the SAFE I Rule
in a Notice of Proposed Rulemaking entitled ``Corporate Average Fuel
Economy Preemption,'' which was published on May 12, 2021. After
evaluating all public comments submitted for this Proposal, the Agency
is finalizing the Proposal. As such, the Agency is repealing all
regulatory text and appendices promulgated in the SAFE I Rule. In doing
so, the Agency underscores that any positions announced in
preambulatory statements of prior NHTSA rulemakings, including in the
SAFE I Rule, which purported to define the scope of preemption under
the Energy Policy and Conservation Act (EPCA), do not reflect the
Agency's reconsidered understanding of its proper role in matters of
EPCA preemption. Through this final rule, NHTSA makes clear that no
prior regulations or positions of the Agency reflect ongoing NHTSA
views on the scope of preemption of states or local jurisdictions under
EPCA.
DATES: This action is effective on January 28, 2022.
Petitions for Reconsideration: Pursuant to 49 CFR 553.35, petitions
for reconsideration of this final rule must be received not later than
February 14, 2022.
ADDRESSES: Any petitions for reconsideration should refer to the docket
number of this document and be submitted to: Deputy Administrator,
National Highway Traffic Safety Administration, 1200 New Jersey Avenue
SE, West Building, Fourth Floor, Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: Hunter B. Oliver, Office of Chief
Counsel, NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820,
1200 New Jersey Ave. SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview of Final Rule
A. Summary of Proposal
B. Public Participation Opportunities and General Overview of
Comments
C. Finalized Approach
II. Final Rule
A. This Final Rule Is a Proper Exercise of NHTSA's
Reconsideration Authority
B. NHTSA Is Finalizing Its Repeal of the SAFE I Rule in Its
Entirety
III. Rulemaking Analyses and Notices
1. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
2. Executive Order 13990
3. Executive Order 14008
4. Regulatory Flexibility Act
5. Executive Order 13132 (Federalism)
6. Unfunded Mandates Reform Act of 1995
7. National Environmental Policy Act
8. Executive Order 12988 (Civil Justice Reform)
9. Paperwork Reduction Act
10. Privacy Act
11. Congressional Review Act
I. Overview of Final Rule
A. Summary of Proposal
On May 12, 2021, NHTSA published in the Federal Register a Notice
of Proposed Rulemaking (NPRM or Proposal) entitled ``Corporate Average
Fuel Economy (CAFE) Preemption,'' which set forth the proposal that
NHTSA is finalizing today.\1\ As explained in the Proposal, this NPRM
considered a repeal of NHTSA's portion of a joint agency action
completed by NHTSA and the Environmental Protection Agency (EPA) in
2019, ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part
One: One National Program'' (SAFE I Rule or Rule).\2\ In the SAFE I
Rule, NHTSA and EPA finalized a joint agency action relating to the
state regulation of greenhouse gas (GHG) emissions from motor vehicles
and state mandates for zero emission vehicles (ZEVs). In that action,
NHTSA codified regulatory text and appendices, which expressly declared
that certain types of state regulation were preempted due to a
perceived irreconcilable conflict with the Agency's fuel economy
standards. In addition, the Agency published further statements in the
preambles of the SAFE I rulemaking, which described various types of
state regulations as preempted. As part of the SAFE I action, EPA also
withdrew portions of a waiver that EPA had previously extended to the
California Air Resources Board (CARB) under Section 209 of the Clean
Air Act to regulate new motor vehicle emissions through GHG standards
and a ZEV mandate.\3\
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\1\ See DOT, NHTSA, Notice of Proposed Rulemaking, Corporate
Average Fuel Economy (CAFE) Preemption, 86 FR 25980 (May 12, 2021)
(referred to in subsequent citations as ``CAFE Preemption NPRM'').
\2\ See generally NHTSA, EPA, Withdrawal of Waiver; Final Rule,
The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One:
One National Program, Final Rule, 84 FR 51310 (Sept. 27, 2019).
\3\ Unless otherwise stated herein, all references to the SAFE I
Rule and any associated discussions in this final rule refer only to
NHTSA's portions of the SAFE I action and do not include any EPA
actions on the California waiver.
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On January 20, 2021, President Biden signed Executive Order 13990,
``Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis,'' which, among other actions, directed DOT,
NHTSA, and EPA to immediately review and consider suspending, revising,
or rescinding their respective portions of the SAFE I Rule. NHTSA's
resulting comprehensive assessment of the SAFE I Rule identified
potential problems relating to both the legal authority claimed by
NHTSA for the rulemaking and the degree to which the categorical
prohibitions announced by the Agency failed to appropriately account
for the substantial and often nuanced state interests in the measures
purportedly preempted by the SAFE I Rule. As a result of these
considerations, NHTSA published the NPRM, to propose a repeal of the
SAFE I Rule and to solicit public comment on the Agency's concerns
about the legality and prudence of the rulemaking. On April 28, 2021,
EPA outlined its own review of the EPA aspects of the SAFE I joint
agency action, publishing a Notice of Opportunity for Public Hearing
and Comment that proposed a reconsideration of EPA's withdrawal of
California's waiver under the Clean Air Act.\4\ Both agencies have
expressly recognized that their respective reconsideration proposals
are separate, independent proceedings.\5\
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\4\ See generally EPA, Notice of Opportunity for Public Hearing
and Comment, 86 FR 22421 (Apr. 28, 2021).
\5\ See id. at 22422 n.3 (``This action is being issued only by
EPA and, therefore, does not bear upon any future or potential
action NHTSA may take regarding its decision or pronouncements in
SAFE I.''); CAFE Preemption NPRM, 86 FR 25981 n.3 (``This proposed
rule is being issued only by NHTSA. As such, to the extent EPA
subsequently undertakes an action to reconsider the revocation of
California's Section 209 waiver, such action would occur through a
separate, independent proceeding.'').
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[[Page 74237]]
In the CAFE Preemption NPRM, NHTSA proposed to repeal the SAFE I
Rule for several independent reasons. First, the Agency repeatedly
expressed substantial doubts regarding the legal validity of the Rule.
As the NPRM explained, NHTSA became concerned about whether the Agency
possesses the authority to define the scope of EPCA through rulemaking.
Accordingly, NHTSA proposed to repeal and withdraw the codified
regulations and appendices, as well as any associated interpretations
or views on EPCA preemption contained in the SAFE I Rule, including in
the regulatory text of Sections 531.7, 533.7, and appendices B to Parts
531 and 533.
In the Proposal, NHTSA recognized that the statutory preemption
provision in EPCA, Section 32919, was self-executing. In this respect,
Section 32919 is able to preempt state or local laws directly, without
the need for a DOT or NHTSA regulation that further implements either
EPCA preemption or this particular statutory provision. As such, the
statutory provision is both standalone and fails to articulate any role
for the Agency in further dictating a preemptive scope. Accordingly,
the NPRM proposed that Section 32919 and EPCA were more appropriately
read as indicating that Congress did not intend to empower NHTSA to
define preemption in this manner. As a result, NHTSA's Proposal
expressed concern that in the SAFE I Rule, the Agency acted outside of
its delegated authority by publishing regulations and pronouncements
that sought to do just such a thing. Accordingly, the NPRM proposed to
repeal the SAFE I Rule.
In addition, the Proposal also articulated a separate basis for
repealing the entirety of the SAFE I Rule, which rested upon the
inappropriateness of such a sweeping pronouncement of preemption. Even
if EPCA had imbued NHTSA with power to dictate preemption through
regulations, the expansive manner in which this authority was wielded
in the SAFE I rulemaking failed to appropriately account for a variety
of important considerations. These include legally relevant factors,
such as the substantial federalism interests of states and local
jurisdictions who had long relied on programs to address environmental
hazards in their local communities or comply with other federal air
pollution requirements. In addition, the categorical and generally
applicable scope of the SAFE I Rule also precluded consideration of
other fact-specific attributes of particular programs, many of which
represent diverse characteristics that bear upon the application of
EPCA preemption and the accuracy of any ensuing preemption analysis.
Many of these factors--some of which were not even discussed in the
SAFE I rulemaking--strongly suggest that a more considered and
circumscribed dispensation of any preemption authority would more
narrowly tailor any preemptive pronouncements to better account for the
diverse, nuanced, and relied upon federalism interests of the preempted
state governments and their constituents. As described further below,
these concerns were raised and expressed by a significant number of
public comments, especially from those local jurisdictions most
affected by the rulemaking. These jurisdictions described numerous
unique considerations regarding their programs that the SAFE I Rule's
absolute proclamation of preemption did not fully contemplate. These
considerations reflected the Agency's similar concerns in the NPRM,
which proposed to repeal the SAFE I Rule in its entirety in order to
establish a ``clean slate,'' that restores NHTSA's longstanding
practice of undertaking a more careful and particularized role in the
EPCA preemption discourse.
Finally, even apart from the lack of rulemaking authority and the
overly broad manner of the SAFE I Rule's prohibitions, the NPRM also
proposed a repeal of the SAFE I Rule in order to remove the regulation
that overcomplicated or potentially confused an otherwise direct
application of Section 32919's statutory standards. In connection with
a proposed repeal of the regulatory text from the SAFE I Rule, the NPRM
also proposed to clarify that, to the extent prior statements from
rulemaking preambles (from the SAFE I Rule or otherwise) discussed
aspects of EPCA preemption or could be read as interpretative views on
the subject, those statements should not be read as continuing views of
the Agency. While this clarification was not legally necessary, NHTSA
still considered it worthwhile because the inconsistent nature of many
of the Agency's prior statements on EPCA preemption and the oftentimes
imperative language utilized in such statements--especially during the
SAFE I rulemaking--risked a confusing landscape in which regulated
entities and the public were unsure of the precise legal effect of
Agency statements that purported to control EPCA's preemptive reach.
Moreover, NHTSA felt that many of those statements, particularly in the
preambles of the SAFE I Rule, contained sweeping and definitive
language on preemption, which left no room for nuance or further
deliberation about particular programs, and obscured the Agency's
ongoing internal consideration of whether EPCA actually enacted a
narrower scope of preemption than claimed in the rulemaking. In light
of these considerations, the NPRM proposed to expressly disclaim any of
these prior statements to make clear they no longer accurately
reflected the Agency's position on the issue.
B. Public Participation Opportunities and General Overview of Comments
The public docket opened for this rulemaking following the Federal
Register publication of the NPRM on May 12, 2021. The public comment
period spanned 30 days, with comments due on June 11, 2021. During that
time, the Agency received 445 comments. As of the date of today's final
rule, NHTSA has not received any late comments posted after the close
of the comment period.\6\
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\6\ Following the close of the comment period, the State of
California requested a meeting to describe aspects of a public
comment submitted by California, along with other states and cities.
See State of California et al., Docket No. NHTSA-2021-0030-0403,
Comments of States and Cities Supporting Repeal of NHTSA's ``SAFE''
Part One Preemption Rule (June 11, 2021). In this meeting, which
occurred on August 26, 2021, California walked through the various
sections of their comment. A docket memo posted by NHTSA to the
rulemaking docket provides more information regarding this meeting.
See NHTSA, Docket No. NHTSA-2021-0030-0450, Docket Memo, Meeting
with the State of California, (Sept. 7, 2021).
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NHTSA closely reviewed each of the comments posted to the docket
for this Proposal. While NHTSA is responding to the particular comments
in further detail in the substantive analysis in the following sections
of this final rule, at a high level, the public comments spanned a
diverse array of state and local jurisdictions, regulated entities and
trade associations for regulated industries, public interest groups and
other nonprofit organizations, and individual members of the public.
The Agency appreciates the time and effort dedicated by these parties
in submitting their comments and is grateful for the diversity and
depth of views, both for and against the Proposal, expressed by the
commenters.
Overall, the Agency received comments spanning the entire spectrum
of perspectives with respect to the Proposal. The vast majority of
comments from the entities most immediately affected by the rulemaking,
i.e., states and local jurisdictions, strongly supported the Proposal.
In particular, as explained further below, many of these comments
provided tangible examples of hardships imposed
[[Page 74238]]
by the SAFE I Rule and identified nuanced aspects of their affected
programs that were not fully considered during the SAFE I rulemaking.
Likewise, comments from entities or associations in the automotive
industry, who are directly affected by motor vehicle emission
regulations, largely tended to support the Proposal or offer more
neutral views. With a few exceptions, most other institutional
commenters strongly supported the rulemaking as well. Such commenters
consisted of public interest groups, such as environmental or consumer
advocacy organizations, who overwhelmingly supported the Proposal and
urged a swift repeal of the SAFE I Rule for many of the same reasons
expressed in the NPRM.
The Agency also received several institutional comments that
expressly opposed the Proposal. While these comments are discussed in
depth later in this final rule, in a general sense, these comments
urged the Agency to retain the SAFE I Rule in its entirety. Many of
these comments defended the substantive validity of the preemption
scope announced in the SAFE I Rule, and construed NHTSA's governing
authorities as delegating to the Agency the power to regulate
preemption in the manner attempted in that rulemaking. Several of these
comments also questioned the sufficiency of NHTSA's proposed
justifications to repeal the SAFE I Rule, essentially arguing that
NHTSA could not reasonably repeal a substantive position on preemption
without replacing it with an alternative substantive view. While a
number of individuals commented in support of the Proposal, the Agency
recognizes that many individual members of the public also opposed a
repeal of the SAFE I Rule.\7\
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\7\ The vast majority of these individual commenters who opposed
the rulemaking appeared to participate in an organized letter
writing campaign, judging from the fully or partially verbatim
overlap in language or terminology in many of those comments, and
raised the same general objections to the proposed rule.
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Finally, a significant portion of the comments raised, either in
full or in part, issues beyond the narrow scope on which NHTSA proposed
to repeal the SAFE I Rule. Such topics, which appeared in comments both
supportive of and opposed to the Proposal, tended to focus on the
substantive aspects of the CAFE program, such as the appropriate levels
of fuel economy stringency, the effect of any particular state programs
on the environment or vehicle fleets, or specific vehicle technologies,
such as electrification. Likewise, as anticipated in the NPRM, many of
the commenters also articulated substantive views on the appropriate
scope of EPCA preemption.\8\ NHTSA recognizes that many of these issues
pose important societal or public policy questions and, in fact,
analyzed a number of these topics in significant detail as part of its
standard-setting analysis proposed in the Federal Register on September
3, 2021, ``Corporate Average Fuel Economy Standards for Model Years
2024-2026 Passenger Cars and Light Trucks.'' \9\ Nevertheless, most of
these issues do not directly speak to the proposed bases of NHTSA's
repeal of the SAFE I Rule, given the very narrow scope of this
rulemaking, which principally arose from a reconsideration of the
discrete legal issues that underpinned the exercise of Agency authority
in the SAFE I rulemaking. As such, while NHTSA greatly appreciates the
efforts of commenters to submit such views and thoroughly reviewed them
as part of the Agency's continuous efforts to understand broader public
perspectives on NHTSA's fuel economy responsibilities, such views do
not directly bear upon today's final rule.
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\8\ See, e.g., CAFE Preemption NPRM, 86 FR at 25982 n.8 (``The
Agency anticipates that many stakeholders may comment, urging the
Agency to go further--not mere not merely to repeal the preemption
determination, but to affirmatively announce a view that State GHG
and ZEV programs are not preempted under EPCA. Nevertheless, the
Agency deems any such conclusions as outside the scope of this
Proposal.'').
\9\ NHTSA, Corporate Average Fuel Economy Standards for Model
Years 2024-2026 Passenger Cars and Light Trucks, 86 FR 49602 (Sept.
3, 2021).
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C. Finalized Approach
Today's final rule finalizes the proposal set forth in the CAFE
Preemption NPRM. As such, this final rule repeals all aspects of the
SAFE I Rule, both the codified regulatory text and the accompanying
pronouncements about the scope of CAFE preemption. Specifically, the
final rule repeals 49 CFR Sections 531.7 (``Preemption'') and 533.7
(``Preemption''), as well as each Appendix B in 49 CFR part 531
(``APPENDIX B TO PART 531--PREEMPTION'') and Part 533 (``APPENDIX B TO
PART 533--PREEMPTION''). In doing so, NHTSA's regulations will return
to the same state for which they existed throughout the nearly 50-year
history of the Agency's CAFE program--in which no regulation existed to
purport to broadly define the scope of EPCA preemption.
In finalizing this Proposal, NHTSA concludes that it lacked
authority to dictate the scope of EPCA preemption enacted in Section
32919. The plain language of Section 32919 establishes a clearly
executable preemptive framework that can be applied by any reviewing
court in the absence of an Agency regulation purporting to further
dictate EPCA's preemptive scope. This conclusion is not simply
presupposition, but as NHTSA's Proposal referenced and many commenters
subsequently emphasized, the self-sufficiency of Section 32919 is a
straightforward historical observation demonstrated by the provision's
repeated application by Federal courts across the country--both to
uphold and to preempt various state and local laws. The text of Section
32919 does not mention any role for NHTSA in codifying binding
preemption requirements, nor does it state that the Agency is conferred
with preemption rulemaking authority. Instead, the statute is self-
executing and suffices to control the preemption analysis. The courts
retain their authority to decide preemption questions; furthermore, the
Agency may, consistent with law, provide interpretations of CAFE
preemption questions other than by legislative rule. Thus, repeal of
the SAFE I Rule is not simply appropriate, but a necessary measure to
ensure that NHTSA is acting within the appropriate scope of its
authority under EPCA.
In addition, today's final rule also concludes that a repeal of the
SAFE I Rule is appropriate irrespective of whether NHTSA had legal
authority for the SAFE I rulemaking. Through both its regulations and
preambulatory language, the SAFE I Rule sweepingly preempted expansive
categories of state and local motor vehicle emissions regulations. In
doing so, the SAFE I Rule imposed immutable preemption requirements of
general applicability, while ignoring the substantially important
federalism interests affected by such prohibitions. Many of the
comments from states and local jurisdictions underscored this position,
identifying specific state programs affected by the SAFE I Rule that
those states had previously relied on to protect their citizens from
environmental hazards and to meet federal obligations, such as
attainment goals for National Ambient Air Quality Standards for
criteria pollutants.\10\ By
[[Page 74239]]
imposing categorical preemption prohibitions without regard for such
considerations, the SAFE I Rule impermissibly failed to account for
legally relevant factors, such as reliance interests of states and
local jurisdictions in longstanding programs potentially affected by
the Rule. In doing so, the SAFE I Rule precluded potential avenues for
a more tailored approach that considered programs in a more
particularized setting rather than prematurely overriding those
federalism interests in a categorical manner.
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\10\ See, e.g., National Association of Clean Air Agencies,
Docket No. NHTSA-2021-0030-0140 (June 10, 2021) (``For California
and states that implement California's motor vehicle emissions
program under Section 177 of the federal Clean Air Act, their GHG
and ZEV programs are vitally important. Such programs enable long-
term planning and yield critical emission reductions that will
contribute significantly to states' abilities to meet their climate
goals and their statutory obligations to attain and maintain the
health-based National Ambient Air Quality Standards (NAAQS) for
criteria pollutants.'').
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Moreover, by purporting to preempt abstract categories of
regulation, the SAFE I Rule's prohibitions were both categorical and
anticipatory--largely precluding entire subjects of state regulations
without analyzing important factual questions or variables, such as the
particulars of state programs, their specific manners of
implementation, or possible scientific developments that may affect the
relevant technologies. Therefore, even if the SAFE I Rule constituted a
legitimate exercise of the Agency's authority, it represented an overly
broad attempt to preempt state and local laws that precluded more
detailed, and therefore potentially more accurate, considerations of
specific programs. As such, NHTSA considers the SAFE I Rule's
categorical and anticipatory scope to express an inappropriately broad
and restrictive view on EPCA preemption. Accordingly, independent from
the authority question, the SAFE I Rule conflicts with the need for a
more focused consideration of preemption issues and, as such, must be
repealed.
Finally, as part of today's notice, NHTSA is also expressly
emphasizing that language in the preambulatory statements of other
rulemakings, including the SAFE I Rule, which purport to dictate the
scope of EPCA preemption, should no longer be viewed as the position of
the Agency.\11\ Indeed, several commenters expressed a view that those
statements should be naturally understood as defunct upon a formal
repeal of any attendant regulatory text.\12\ In any event, given the
degree to which many of these statements--especially in the SAFE I
Rule--employ absolute language and purport to outright prohibit certain
regulations, the Agency feels that it is important to make abundantly
clear that these statements should not be read out of context to
suggest that they remain current views of the Agency. This ensures that
parties otherwise affected by such statements are not confused about
whether the admonitions and prohibitions contained in the statements,
which remain published in the Federal Register even after the repeal of
the actual regulations from the Code of Federal Regulations, continue
to apply.
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\11\ The specific statements identified by the Agency are
described further in Section II.B.iii.b. See also infra n.252
(listing statements appearing in rulemakings other than the SAFE I
Rule).
\12\ See State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021); Center for Biological Diversity et al., Docket
No. NHTSA-2021-0030-0369 (June 11, 2021).
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II. Final Rule
A. This Final Rule Is a Proper Exercise of NHTSA's Reconsideration
Authority
As emphasized in the Proposal, NHTSA, like any other Federal
agency, is afforded an opportunity to reconsider prior views and, when
warranted, to adopt new positions. Indeed, as a matter of good
governance, agencies should revisit their positions when appropriate,
especially to ensure that their actions and regulations reflect legally
sound interpretations of the agency's authority and remain consistent
with the agency's views and practices.
The need for an ongoing reconsideration of prior positions applies
to both reevaluations of an agency's statutory authority, as well as
reassessments of policy decisions. Overwhelmingly, commenters to this
Proposal did not question the general discretion of NHTSA, as a Federal
agency, to reconsider either statutory or policy-based decisions.
Indeed, most commenters expressly supported NHTSA's reconsideration
efforts and articulated numerous reasoned justifications for the
undertaking. The few commenters who opposed the reconsideration tended
to focus on the adequacy of the reasons for the reconsideration rather
than NHTSA's prerogative to conduct the reconsideration. Such
objections are addressed below within the specific reconsideration
basis to which they were directed. However, a small number of
dissenting comments raised issues more broadly applicable to the
reconsideration process.
i. The Agency's Reconsideration Authority Applies Irrespective of Any
Changes in Facts or Circumstances
Several commenters contended that the Agency lacks a sufficient
legal basis to withdraw the SAFE I Rule, arguing that no legal or
factual circumstances changed between the issuance of the SAFE I Rule
and the Proposal.\13\ At the outset, it is important to be clear that
the procedural question of whether an agency may reconsider a prior
action is separate from whether the reconsideration is itself
reasonable. We discuss the first here, while we address the second
issue below in Part II.B. NHTSA does not agree that no relevant legal
or factual developments occurred following the SAFE I Rule. But even
before reaching this question, the Agency stresses that the governing
administrative law framework does not require that any such changes
occur before an agency may reconsider a prior position. A change in
factual circumstances is only one amongst a host of different reasons
that may cause an Agency to reconsider a prior agency action. Agencies
may reconsider an issue ``for example, in response to changed factual
circumstances, or a change in administrations.'' \14\ Pure policy
reconsiderations also remain sufficient grounds, with ``evolving
notions'' about the appropriate balance of varying policy
considerations constituting sufficient reason for a change in
position.\15\ This is all part of the natural and appropriate role of
an agency engaging in informed rulemaking, which ``must consider
varying interpretations and the wisdom of its policy on a continuing
basis.'' \16\
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\13\ See National Automobile Dealers Association, Docket No.
NHTSA-2021-0030 (June 10, 2021).
\14\ Nat'l Cable & Telecomms. Ass'n v. Brand X internet Servs.,
545 U.S. 967, 981-82 (2005) (emphasis added).
\15\ N. Am.'s Bldg. Trades Unions v. Occupational Safety &
Health Admin., 878 F.3d 271, 303 (D.C. Cir. 2017).
\16\ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 838 (1984).
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This reconsideration exemplifies the types of reassessments for
which a change in facts is not required or even particularly pertinent.
As described throughout this notice, NHTSA's repeal of the SAFE I Rule
is especially necessary because the Agency no longer reads EPCA as
providing NHTSA the authority to dictate the scope of preemption
through regulations. This is principally a narrow legal determination,
which focuses on whether Congress intended to provide the requisite
rulemaking authority to the Agency. Such a question does not turn upon
factual circumstances, but instead depends upon a statutory
construction of Section 32919. Further, as discussed below, even if the
prior rule was a valid exercise of its authority, NHTSA concludes that
the SAFE I Rule was overly broad and restrictive as it ignored
important reliance interests and distinctions within state and local
laws.
Even so, NHTSA notes that new factual developments since the SAFE I
Rule's 2019 promulgation have
[[Page 74240]]
occurred. Commenters stressed many of these factual updates as
illustrative of the sweeping scope of the SAFE I Rule. For example,
since the SAFE I Rule's promulgation, several additional states have
expressed a desire to adopt future motor vehicle emissions measures
under Section 177 of the Clean Air Act.\17\ Moreover, many commenters
stressed that every successive year, additional information and
scientific data emerges regarding the climate crisis.\18\ Multiple
other comments emphasized that technological progress on motor vehicle
emissions reduction strategies creates a dynamic regulatory landscape
in which compliance paths are more complex than the static assumptions
in the SAFE I Rule.\19\ Thus, even though a change in facts is not
necessary for NHTSA's reconsideration to occur, the Agency disagrees
with several commenters who argued that no factual circumstances have
changed since the SAFE I rulemaking occurred.
---------------------------------------------------------------------------
\17\ See, e.g. Edison Electric Institute, Docket No. NHTSA-2021-
0030-0396 (June 11, 2021) (``Since the finalization of SAFE I,
Nevada, New Mexico, Minnesota and Virginia have announced their
intent to adopt California's criteria-pollutant, GHG, and ZEV
regulations. Washington, which has already adopted California's
criteria-pollutant and GHG standards, has announced its intent to
adopt California's ZEV standards.'').
\18\ See generally Allergy & Asthma Network et al., Docket No.
NHTSA-2021-0030-0299 (June 4, 2021).
\19\ South Coast Air Quality Management District, Docket No.
NHTSA-2021-0030-0446 (June 11, 2021).
---------------------------------------------------------------------------
ii. The Agency Can Reconsider the SAFE I Rule Without the Need To
Announce New Substantive Positions on EPCA Preemption
Several other commenters opposed the Proposal by arguing that any
repeal of the SAFE I Rule that did not announce a new substantive
position on EPCA preemption was arbitrary and capricious. These
comments especially criticized aspects of the Proposal, such as
footnote 8, that expressly clarified that any new substantive
conclusions on EPCA preemption were ``outside the scope of this
Proposal.'' \20\ For instance, a joint comment submitted by a
collection of entities, including the Competitive Enterprise Institute
(CEI), labeled the Proposal ``the first-ever assertion of regulatory
cancel culture'' because ``the NPRM declines to debate the opinions it
proposes to delete.'' \21\ Ultimately, these commenters suggested that
NHTSA could not repudiate the views of EPCA preemption announced in the
SAFE I Rule without simultaneously replacing those views with a new
substantive position on preemption.
---------------------------------------------------------------------------
\20\ CAFE Preemption NPRM, 86 FR at 25982 n.8.
\21\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
---------------------------------------------------------------------------
NHTSA understands that many commenters feel strongly about the
important policy dynamics underlying the scope of EPCA preemption. This
applies both to commenters such as CEI, who support sweeping EPCA
preemption and seek to defend the substance of the SAFE I Rule's
scope,\22\ and to commenters who prefer NHTSA to declare expressly that
EPCA preemption is inapplicable to state programs.\23\ Several such
comments that oppose the rulemaking argue that unless the agency
announces new substantive positions on EPCA preemption, it has failed
to provide a legally adequate justification for a repeal.\24\
---------------------------------------------------------------------------
\22\ Id.
\23\ See, e.g., Tesla, Inc. Docket No. NHTSA-2021-0030-0398
(June 11, 2021). This is not to say that all commenters advocated
for the rulemaking to expand into substantive EPCA areas. In fact, a
large number of commenters appeared to understand the narrow legal
focus of this rulemaking, with many expressly supporting the
Agency's bifurcated approach of first sorting out issues of Agency
authority before grappling with substantive EPCA preemption
questions. See, e.g., Center for Biological Diversity et al., Docket
No. NHTSA-2021-0030-0369 (June 11, 2021) (``While the substantive
errors in the Rule's preemption analysis could have formed an
independent ground for repeal, Commenters understand that NHTSA
considers those issues to be ``outside the scope of this Proposal''
because NHTSA will not be `[r]eassessing the scope of preemption
under EPCA' or `announcing new interpretive views'' in this
proceeding.' ''); Rivian, Docket No. NHTSA-2021-0030-0413 (June 11,
2021) (``Rivian agrees in the appropriateness to leave an
affirmative announcement of the view that State GHG and ZEV programs
are not preempted under EPCA for another rulemaking.''); National
Coalition for Advanced Transportation, Docket No. NHTSA-2021-0030-
0310 (June 11, 2021) (``NCAT recognizes that NHTSA is not seeking
comment on substantive interpretation of EPCA preemption'').
\24\ See American Fuel & Petrochemical Manufacturers, Docket No.
NHTSA-2021-0030-0425 (June 11, 2021) (arguing that NHTSA's
``recission of the SAFE I Rule would be unlawful'' because the
rulemaking ``fails to explain how ZEV mandates and GHG tailpipe
standards are not `related to' the federal CAFE standards, a
foundational requirement for a regulatory reversal such as the one
NHTSA is proposing here.'').
---------------------------------------------------------------------------
However, by advancing directly to substantive policy questions,
such comments skip a critical step in the rulemaking analysis. As an
agency, NHTSA's exercise of rulemaking authority is bound by specific
statutory and legal frameworks that govern not only the substantive
scope of available policies, but also the manner in which such policies
may be articulated.\25\ Therefore, NHTSA may not proceed directly to
the policy questions surrounding EPCA preemption without first
carefully considering whether the manner in which its views are
expressed is appropriate and permissible. In this respect, both the
Proposal and final rule are based on issues that arise prior to
reaching any substantive conclusions about EPCA preemption. Namely,
this reconsideration principally evaluates the legal authority for
NHTSA to issue legislative rules implementing Section 32919 and the
overly broad form in which NHTSA promulgated those regulations. As
such, this action addresses these threshold questions while
establishing space for the Agency to more thoroughly consider whether,
when, and how to express its views on the subsequent substantive
matters, such as whether particular state and local programs are
preempted. In fact, the Proposal expressly acknowledged that NHTSA
continues to deliberate further about ``the scope of preemption under
EPCA'' and in the future may ``announc[e] new interpretative views
regarding Section 32919.'' \26\ But before doing so, NHTSA must ensure
that the manner in which the issues are raised--including the manner in
which the Agency has spoken about them in the past--conforms to the
authority delegated to the Agency by Congress and is otherwise
appropriate, as discussed in Part II.B. That is the focus of this
rulemaking and a principal impetus for today's repeal of the SAFE I
Rule.
---------------------------------------------------------------------------
\25\ Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29 F.3d
655, 670 (D.C. Cir. 1994) (en banc) (stressing that ``[a]gencies owe
their capacity to act to the delegation of authority, either express
or implied, from the legislature'').
\26\ CAFE Preemption NPRM, 86 FR at 25982 n.8.
---------------------------------------------------------------------------
As described throughout this Final Rule, NHTSA has concluded that
the SAFE I Rule exceeded the Agency's authority by attempting to
dictate the scope of EPCA preemption through regulations. Upon such a
determination, the most responsible and legally essential course of
action is for the Agency to exercise its reconsideration authority to
rectify the overstep. The importance of the policy interests underlying
the EPCA preemption issue do not compel a different approach. Instead,
they only underscore the need for NHTSA to ensure that when it attempts
to speak to these notable policy issues, it only does so as properly
authorized and through an appropriate scope.
Moreover, now that NHTSA has determined that the SAFE I Rule
exceeded the Agency's authority for the reasons expressed in Part
II.B.i. below and also impermissibly ignored important federalism
interests without regard for the availability of a more circumscribed
approach instead, as explained in Part II.B.ii. below, it would be
problematic to delay a repeal of the
[[Page 74241]]
Rule until new interpretative positions on EPCA preemption (following
the appropriate process) can be formulated. Many commenters, and
particularly local jurisdictions directly affected by the SAFE I Rule's
preemption determination, urged a swift finalization of this rulemaking
in order to resolve their federalism interests.\27\ Although the Agency
agrees with these commenters about the need to repeal the SAFE I Rule
swiftly, NHTSA stresses that today's action is not intended to
determine that any particular State or local law is or is not
preempted. As evidenced by other comments' diversity and depth of views
on the substance of EPCA preemption, applying Section 32919 to
particular state programs or types of regulations requires a more
careful and comprehensive analysis, that is attentive to the legal and
factual issues presented by a particular action. As explained further
in Section II.B.ii., these intricacies are best addressed through
careful deliberation and attention to the factual context relevant to
the respective preemption considerations. Accordingly, requiring new
substantive views on EPCA preemption to accompany any repeal of the
SAFE I Rule would require the Agency to either delay a repeal of the
SAFE I Rule even though the Agency considers it an invalid rule or,
conversely, formulate a new overly broad substantive view on EPCA
preemption that risks similar overgeneralizations as exhibited in the
SAFE I Rule. However, this false dichotomy is avoidable by first
focusing on a repeal of the SAFE I Rule before subsequently--and
separately--taking the time needed to fully consider how to best
approach any nuanced substantive issues that remain, if the Agency
determines that such action is necessary.
---------------------------------------------------------------------------
\27\ See District of Columbia Department of Energy and
Environment, Docket No. NHTSA-2021-0030-0412 (June 11, 2021) (``The
District of Columbia calls on the NHTSA to finalize this rule
proposal as expeditiously as practicable. The District and other 177
states need regulatory certainty to implement clean cars programs
for the benefit of the health and welfare of our residents.'');
National Coalition for Advanced Transportation, Docket No. NHTSA-
2021-0030-0310 (June 11, 2021) (urging the Agency to finalize the
repeal ``as promptly as possible'').
---------------------------------------------------------------------------
Finally, it is worth emphasizing that EPCA does not state that
NHTSA must speak substantively on EPCA preemption. This clear reading
of Section 32919 was affirmed by commenters both supportive of and
opposed to the Proposal. For instance, a supportive comment submitted
by the State of California, together with numerous other states and
local jurisdictions, emphasized that ``even if EPCA did give NHTSA that
authority [for the SAFE I Rule], the statute does not compel NHTSA to
issue such rules.'' \28\ Similarly, a comment from the National
Automobile Dealers Association (NADA), who opposed the Proposal, echoed
the sentiment that the SAFE I Rule was ``not specifically required by
EPCA to be issued'' as it was ``not a necessary predicate to EPCA
preemption.'' \29\
---------------------------------------------------------------------------
\28\ State of California et al., Docket No. NHTSA-2021-0030-0403
(June 11, 2021).
\29\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
---------------------------------------------------------------------------
Such comments recognize, as they must, that EPCA is totally silent
as to any role for NHTSA in further defining EPCA preemption. They
simply disagree on what that silence means. But even construing this
silence permissively, as commenters such as NADA urged,\30\ whether to
speak substantively about EPCA preemption is, at most, a matter of
Agency discretion. In this respect, EPCA contrasts sharply with other
enactments in which Congress expressly instructed NHTSA or DOT to
promulgate implementing regulations about a particular subject.
Examples of such enactments abound even within EPCA, such as the
unambiguous instruction in Section 32902 that ``the Secretary of
Transportation shall prescribe by regulation average fuel economy
standards for automobiles manufactured by a manufacturer in that model
year.'' \31\ In comparison to such statutorily mandated regulations,
the silence of Section 32919 cannot reasonably be read as a requirement
that NHTSA promulgate any particular preemption regulations or even
opine on the substance of preemption at all. Under the framework
advanced by these commenters, an agency could never return to silence
after speaking substantively on a topic, even if it had good reasons to
do so and the statute did not require the agency to speak on the issue.
This unsustainable standard would permanently erode any NHTSA
discretion to remain silent under Section 32919.
---------------------------------------------------------------------------
\30\ Id.
\31\ 49 U.S.C. 32902(a) (emphasis added). See also infra.
nn.125-131.
---------------------------------------------------------------------------
Therefore, regardless of the authority question, EPCA at most only
afforded NHTSA discretion to decide how or even whether to speak on
matters of preemption. Thus, even if Section 32919 is construed as
commenters such as NADA urge, EPCA still must be read to permit NHTSA
to remain silent on EPCA preemption. This includes neither codifying
regulations on preemption nor making broadly applicable statements on
EPCA preemption where the Agency has valid reason not to do so. And
here, as discussed in Section II.B., NHTSA has identified multiple
clear grounds to repeal the SAFE I Rule. Such silence remains a viable
option because, as commenters across the board recognized, the self-
executing language of Section 32919 is fully capable of controlling the
preemption question without the presence of Agency regulations.\32\
---------------------------------------------------------------------------
\32\ Emmett Institute on Climate Change and the Environment,
Docket No. NHTSA-2021-0030-0218 (June 10, 2021) (``[w]e do not
believe that such guidance--or a more formal preemption
determination along those lines--is necessary in light of the self-
executing nature of EPCA's preemption language, the statutory and
legislative history of EPCA and its amendments, and legal precedent
regarding EPCA's relationship to state and federal fuel economy
standards.''); Alliance for Automotive Innovation, Docket No. NHTSA-
2021-0030-0400 (June 11, 2021) (acknowledging that any offending
state programs are ``automatically preempted under the terms of the
statute. Federal courts can apply EPCA's preemption provision to any
such law or regulation''); National Automobile Dealers Association,
Docket No. NHTSA-2021-0030-0435 (June 10, 2021) (``NADA concurs with
NHTSA's repeated suggestions that EPCA's express and implied
preemption is self-executing. Consequently, the SAFE I Rule's
regulatory language is not essential to effectuate EPCA's express
and implied preemption of state laws governing or related to the
fuel economy of new light-duty motor vehicles.'') (emphasis in
original).
---------------------------------------------------------------------------
iii. The Narrow Scope of This Reconsideration Renders Substantive
Policy Issues Raised in the Comments Outside of the Scope of This
Rulemaking
The narrow legal scope of this rulemaking renders many of the
substantive issues raised in the comments irrelevant to NHTSA's
reconsideration and repeal of the SAFE I Rule. Comments on both sides
of the spectrum--both for and against the Proposal--fall outside of
this narrow scope. The Agency carefully evaluated such comments, both
to identify any nuances that may yet bear upon this rulemaking and to
cultivate a greater understanding of how the public views broader
issues associated with the CAFE program. Nevertheless, NHTSA does not
consider such issues as informing the narrow legal focus of today's
repeal of the SAFE I Rule. Several categories of such comments are
identified below, along with an explanation of how they fail to
intersect with the specific grounds that motivated this
reconsideration.
Many commenters, both supportive of the Proposal and opposed to a
repeal of the SAFE I Rule, advanced their views about the proper scope
of EPCA preemption and, in particular, how ``related to'' in Section
32919 should be
[[Page 74242]]
substantively construed. Some of these commenters expressly recognized
that such views fell outside of the Proposal, but nevertheless included
them in the event the Agency elected to delve into substantive issues
in another context, such as an interpretation or in a subsequent action
after this rulemaking.\33\ Likewise, many commenters supportive of the
Proposal identified what they viewed as the SAFE I Rule's erroneous
legal conclusions on the scope of EPCA preemption, as part of their
broader support for any action that repealed the Rule.\34\ Other
comments mistook the Proposal as setting forth substantive views and
welcomed the new positions the Agency was assumed to have adopted.\35\
Moreover, multiple comments opposing the Proposal sought to defend the
SAFE I Rule on substantive grounds, labeling the original rulemaking a
correct interpretation of EPCA.\36\ These comments tended to focus on
the meaning of ``related to'' under Section 32919 and essentially
tracked the reasoning of the SAFE I Rule in construing the phrase's
substantive scope.\37\
---------------------------------------------------------------------------
\33\ See, e.g., Emmett Institute on Climate Change and the
Environment, Docket No. NHTSA-2021-0030-0218 (June 10, 2021) (``To
the extent NHTSA believes a statement confirming EPCA's lack of
preemptive effect on state vehicle GHG emission and ZEV standards
would be useful and appropriate, it could issue interpretive
guidance to that effect. However, we do not believe that such
guidance--or a more formal preemption determination along those
lines--is necessary'').
\34\ Id.
\35\ See, e.g., Tesla, Inc. Docket No. NHTSA-2021-0030-0398
(June 11, 2021) (``NHTSA's proposal to clarify that EPCA should not
be read to preempt state emission standards that are contemplated
and authorized by the CAA is welcomed.''); Maine Department of
Environmental Protection, Docket No. NHTSA-2021-0030-0249 (June 10,
2021) (``As NHTSA's Proposed Rule now acknowledges, this
interpretation was flawed, for California's GHG emissions standards
are not `related to' and do not otherwise conflict with federal fuel
economy standards simply because CO2 emissions correlate with fuel
consumption The Department applauds this correction.'').
\36\ See, e.g., National Automobile Dealers Association, Docket
No. NHTSA-2021-0030-0435 (June 10, 2021) (stressing that the ``the
SAFE I Rule contains a well-reasoned analysis'' before outlining the
substantive points in the Rule to which NADA agreed).
\37\ See American Fuel & Petrochemical Manufacturers, Docket No.
NHTSA-2021-0030-0425 (June 11, 2021) (undertaking a statutory
construction analysis of ``related to'' under Section 32919). See
also Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423
(June 11, 2021) (discussing federal jurisprudence defining the scope
of the term ``related to'').
---------------------------------------------------------------------------
While all of these comments raise the important questions of how
far EPCA's scope extends and which state programs may be affected by
such a scope, as the Agency explained both in the Proposal and in
today's final rule, those issues are distinct from the narrow legal
considerations that factor into this rulemaking. NHTSA's statutory
authority to codify standalone requirements for EPCA preemption is a
separate question from whether the substance of those requirements
exceeds the scope of Section 32919. Likewise, even if the Agency had
authority for the SAFE I Rulemaking, it remains possible for NHTSA to
have wielded this authority in an inappropriately broad or inattentive
manner, irrespective of the ultimate substantive preemption scope
propounded in such an action. Consequently, none of the grounds invoked
in this rulemaking for a repeal of the SAFE I Rule depend upon a
particular interpretation of EPCA's preemptive scope. As such, as NHTSA
explained elsewhere in this notice, finalizing this rulemaking without
delving into those issues presents the most responsible option, which
best satisfies the need for a swift repeal of the SAFE I Rule while
preserving space for an ongoing thoughtful consideration of these
complex substantive issues.
In a similar vein, several comments opposing the NPRM argued that
NHTSA's Proposal was inadequately justified because the proposed repeal
of the SAFE I Rule was not accompanied by a detailed economic analysis,
such as a regulatory impact statement. These commenters, such as the
American Fuel and Petrochemical Manufacturers (AFPM), contended that
NHTSA could not repeal the SAFE I Rule without ``fully analyz[ing] the
impacts'' or ``examin[ing] the relevant data'' behind economic impacts
from this rulemaking.\38\ For example, AFPM argued that such an
analysis must undertake a detailed economic estimate of a litany of
considerations, including ``the foreseeable impacts'' to ``vehicle
cost, jobs, low-income households, small businesses, etc.,'' as well as
an evaluation of how possible programs that may be initiated by states
following a repeal affect other estimates, such as electric vehicle
pricing or the stringency of subsequent CAFE standards.\39\ Other
commenters argued similarly, insisting that a repeal of the SAFE I Rule
would ``almost certainly lead to'' more stringent fuel economy
standards and inflated vehicle prices, thereby eroding consumer
choice.\40\ Additional commenters propounding this view submitted their
own voluminous impacts analyses of a repeal of the SAFE I Rule, which
included submissions of material such as declarations from academics,
published journal articles analyzing particular regulatory programs,
and past regulatory analyses conducted by EPA and CARB regarding
specific regulatory programs.\41\
---------------------------------------------------------------------------
\38\ American Fuel & Petrochemical Manufacturers, Docket No.
NHTSA-2021-0030-0425 (June 11, 2021).
\39\ Id.
\40\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
\41\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (including Attachments 2-9).
---------------------------------------------------------------------------
To the extent commenters articulated these positions as reasons
NHTSA failed to satisfy various Executive Orders, the National
Environmental Policy Act (NEPA), and other broadly applicable
requirements, those aspects of the arguments are addressed in Section
III (Rulemaking Analyses and Notices).\42\ However, insofar as those
comments suggest that the absence of a detailed economic analysis
inadequately justifies a repeal, NHTSA rejects such arguments as
misconstruing the nature of this rulemaking.
---------------------------------------------------------------------------
\42\ Likewise, many of the reasons outlined here also apply to
those rulemaking analyses sections.
---------------------------------------------------------------------------
As explained throughout this final rule, NHTSA has concluded that
the SAFE I Rule was legally flawed in a manner that legally
necessitates a repeal. First, as Section II.B.i. of the final rule
concludes, NHTSA issued the SAFE I Rule in excess of its authority.
Accordingly, the Agency believes that the only legally appropriate
course of action is to repeal the SAFE I Rule in order to undo the
legally invalid action. Similarly, as Section II.B.ii. of this notice
explains, NHTSA also ignored significant and legally relevant factors
when promulgating the SAFE I Rule. Overlooking these considerations
also renders the SAFE I Rule legally invalid and in need of repeal.
Each of these grounds is governed by a legal determination, such as the
legal standards and questions of statutory construction applicable to
an agency's delegation of authority. These principles of law dictate a
repeal of the SAFE I Rule irrespective of the policy concerns or
impacts asserted by such commenters, which cannot cure the legal
deficits in the SAFE I Rule. Therefore, the concerns raised by such
commenters do not alter either the legal frameworks or the legally
necessitated outcomes described in Sections II.B.ii. and II.B.iii. of
this notice.
Moreover, such commenters also fail to account for the fact that,
through this repeal, NHTSA's regulations are simply returning to the
status quo as it existed prior to the legally invalid action of the
SAFE I Rule. Thus, in this rulemaking, NHTSA is not taking a position
on
[[Page 74243]]
whether any individual program is preempted or not. And, even after
this final rule, the viability of individual state or local programs
and any associated policy impacts from those programs will be dependent
on a host of particularized and contingent variables. In light of this,
it is difficult to project, even for illustrative purposes, the
incremental impacts of this regulatory action.\43\
---------------------------------------------------------------------------
\43\ NHTSA expands on this same issue in the NEPA section of
this final rule, which explains that a statutory construction
analysis controls the question of whether Section 32919 delegated
authority to NHTSA to promulgate express preemption regulations.
This analysis, in turn, looks to the language of the statute to
discern Congress' intent.
---------------------------------------------------------------------------
In addition, because the Agency does not consider an analysis of
those programs in the abstract or aggregate appropriate, doing so here
for purposes of analyzing impacts would risk the same sort of sweeping
and overly broad preemption conclusions characteristic of the SAFE I
Rule. As described in Section II.B.ii., the Agency has determined that
the SAFE I Rule was both far too broad and too restrictive and did not
take into account a host of legally relevant considerations, such as
reliance interests, the important reasons for the state and local laws
it sought to preempt, and, most importantly, the actual details of
those laws. Accordingly, hypothesizing about the substantive scope of
EPCA preemption for purposes of a cost-benefit analysis would undermine
one of the principal goals of this rulemaking, which seeks to defer
assessments of programs until the times and places in which they can be
more particularly and thoroughly considered. Moreover, hypothesizing as
such also further diminishes the extent to which the results of a cost-
benefit analysis could inform this rulemaking because those programs
are more appropriately and accurately considered in more particular
contexts where it is not necessary to make abstract projections or
theorize about programs or technologies that may not even exist yet.
Furthermore, in this repeal, the Agency is not declaring any
particular program preempted or not preempted. Instead, this repeal
simply makes the point that any such preemption analysis should be
undertaken more narrowly and carefully and does not seek to alter the
preemption landscape already established by Section 32919. In contrast,
it was the SAFE I Rule that marked a departure from the Agency's
longstanding practice of refraining from issuing EPCA preemption rules.
In reality, as both the Proposal and this final rule have stressed,
EPCA preemption is properly governed by the self-executing statutory
language of Section 32919. That language remains in place, unchanged,
irrespective of this rulemaking. The courts, of course, retain their
usual authority to decide matters of EPCA preemption. In turn, the
Agency may also at some point offer interpretations as guidance on its
views on questions of EPCA preemption, though not through the mechanism
of a legislative rule. Nevertheless, the preemption framework
established by the statutory language in Section 32919 continues to
govern the ultimate preemption analysis.
Moreover, it is worth noting that the SAFE I Rule itself did not
include a quantitative analysis of the costs or benefits that these
commenters now argue should accompany its repeal, but rather only
provided a ``qualitative discussion of the impacts'' of the preemption
regulations it promulgated.\44\ This is despite the fact that the SAFE
I Rule purported to preempt many state and local programs that were
already in place, which would have had significant economic effects.
This provides a clear contrast to this final rule, which takes no
position on whether any particular programs are preempted.
---------------------------------------------------------------------------
\44\ CAFE Preemption NPRM, 86 FR at 51352.
---------------------------------------------------------------------------
Various commenters raised other issues that are clearly outside the
scope of this rulemaking. A joint comment submitted by the State of
Ohio along with several other states did not explicitly support or
oppose the Proposal, but simply expressed the view that by permitting
California to seek a waiver, Section 209 of the Clean Air Act
unconstitutionally violates the equal sovereignty doctrine by affording
preferential treatment to the State of California.\45\ The comment thus
concludes that ``any agencies that issue such a waiver are therefore
acting unconstitutionally.'' \46\ NHTSA need not wade into the
substance of the equal sovereignty doctrine in response to this
comment. This rulemaking is conducted solely by NHTSA, and any EPA
adjudication of a California waiver application under Section 209
constitutes a separate, independent proceeding.\47\ Repealing the SAFE
I Rule merely removes the impermissible layer of regulatory preemption
from NHTSA's own regulations. The broad preemption framework codified
by the SAFE I Rule applied equally to all states and repealing this
framework likewise refreshes the preemption analysis for the entire
country. Accordingly, repealing the SAFE I Rule does not extend
differential treatment to any state or local jurisdiction.
---------------------------------------------------------------------------
\45\ State of Ohio et al., Docket No. NHTSA-2021-0030-0355 (June
11, 2021).
\46\ Id.
\47\ Supra n.5.
---------------------------------------------------------------------------
In addition, several commenters raised a variety of issues relating
to the administration of the CAFE program, which do not inform the
legal bases pertinent to today's repeal of the SAFE I Rule. These range
from comments advocating for a particular stringency of any fuel
economy standards later promulgated by NHTSA \48\ to requesting a new
interpretation of 49 U.S.C. 32902 in order to more expansively consider
electric vehicles in the standard setting analysis.\49\ While such
commenters are encouraged to raise such issues in connection with
future NHTSA rulemakings setting CAFE standards, this particular
rulemaking does not touch on the standard setting analysis.
---------------------------------------------------------------------------
\48\ Consumer Reports, Docket No. NHTSA-2021-0030-0224 (June 11,
2021); Allergy & Asthma Network et al., Docket No. NHTSA-2021-0030-
0299 (June 4, 2021).
\49\ Rivian, Docket No. NHTSA-2021-0030-0413 (June 11, 2021).
---------------------------------------------------------------------------
Finally, NHTSA received over four hundred comments from individual
commenters who expressed perspectives on the Proposal. The vast
majority of these comments from individuals did not speak to the
particular legal issues implicated in this rulemaking, but raised
broader policy issues instead. A large number of these comments
expressed opposition to the rulemaking. While submitted individually,
by and large, these opposition comments appeared to be form comments or
part of an unspecified letter writing campaign, as they frequently
employed verbatim language. Specifically, an overwhelming number of the
comments started with the exact same phrase: ``California should not be
deciding what kind of cars the rest of the country can buy, and here is
why . . .'' \50\ While the reasons provided after this opening clause
varied somewhat, they all pertained to substantive policy issues
surrounding motor vehicle regulations rather than the narrow legal
grounds necessitating a repeal of the SAFE I Rule. Frequent examples of
the substantive policy concerns raised in these comments include:
Skepticism towards climate change and related environmental issues;
objections to vehicle electrification; concerns about consumer choice
in the availability of motor vehicles; and vehicle price concerns. Most
of these comments also appeared
[[Page 74244]]
directed more to a restoration of California's waiver for the Advanced
Clean Cars program under the Clean Air Act, which, as both NHTSA and
EPA have explained, is a separate proceeding from this rulemaking.\51\
Finally, quite a few comments failed to raise any substantive policy
concerns at all, but simply expressed political hostility towards a
variety of subjects, especially including the State of California and
the EPA.\52\
---------------------------------------------------------------------------
\50\ See, e.g., Comment from Thomas Houghton, NHTSA-2021-0030-
0028 (June 3, 2021).
\51\ Supra n.5.
\52\ To the extent these commenters associated this rulemaking
with the EPA's reconsideration of California's waiver under the
Clean Air Act or otherwise raised vague allegations that EPA was
actually controlling this rulemaking, NHTSA reiterates again that
both the NPRM and final rule were issued solely by NHTSA. Unlike the
SAFE I and SAFE II Rules, this is not a joint rulemaking with EPA
(or any other agency). See also supra n.5 (explaining that the EPA
is conducting a separate, independent proceeding to reconsider its
portions of the SAFE I Rule).
---------------------------------------------------------------------------
Apart from these form comments, several individual commenters
expressed support for the Proposal. Their comments also focused on
substantive policy issues or matters more connected to a California
waiver under the Clean Air Act. Examples of such comments include
expressions of hope that the Proposal would enable states to set
stronger pollution control standards or beliefs that the proposed rule
offered potential health-related benefits and opportunities to mitigate
climate change.
Overall, the concerns expressed by these individual commenters were
not about the merits of NHTSA returning to its longstanding approach to
EPCA preemption, but rather about substantive issues connected to
hypothetical state programs or policy goals which the commenters felt
could possibly arise at some point in the future. For instance, a
number of commenters suggested that a repeal of the SAFE I Rule would
result in the proliferation of electric vehicles, and therefore
expressed various concerns with vehicle electrification, such as an
inability to satisfy unique or specific vehicle needs (e.g., work
functions), poor performance, an insufficient electric grid, increased
costs of electric vehicles, or misgivings about battery sourcing. Other
commenters expressed broader policy concerns, such as advocating for
carbon energy or arguing that air quality mitigation measures are
matters of personal choice that should not be subject to regulation.
Such substantive policy concerns, however, are beyond the scope of this
rulemaking and NHTSA therefore does not address them here.\53\ This
rulemaking merely entails a narrow legal focus on the proper and
prudent exercise of NHTSA's authority. The Agency's final rule neither
promulgates Federal standards nor revives any standards of states or
local jurisdictions. In fact, this final rule does not even change the
scope of EPCA preemption under Section 32919, as NHTSA has repeatedly
acknowledged that the self-executing statutory language controls such a
scope and remains enacted, in full and unchanged, irrespective of the
SAFE I Rule or this rulemaking.
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\53\ This also applies to comments filed by institutions or
entities which based opposition or support for the Proposal on
substantive policy grounds. See, e.g., Sierra Club Massachusetts,
Docket No. NHTSA-2021-0030-0326 (June 11, 2021) (raising generalized
climate concerns); Allergy & Asthma Network et al., Docket No.
NHTSA-2021-0030-0299 (June 4, 2021) (raising generalized health
concerns arising from the climate crisis); The particular substance
of any state or local policy does not control this repeal. Likewise,
a repeal of the SAFE I Rule takes no position on how particular
technologies may bear upon an EPCA preemption analysis. As such,
this rulemaking is technologically neutral and does not seek to
promote or discourage any specific vehicle technologies or emissions
reductions strategies. Comments that endorse or criticize particular
technologies, which were especially concerned with vehicle
electrification, do not factor into the Agency's narrow legal
determination in this repeal. See, e.g., American Fuel &
Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425 (June
11, 2021) (``oppos[ing] technology-specific mandates, including zero
emission vehicle (ZEV) mandates'' by arguing that they ``interfere
with consumers' choices and are contrary to law''); See also Zero
Emission Transportation Association, Docket No. NHTSA-2021-0030-0397
(June 11, 2021) (supporting policies that ``increase the pace of
zero emission vehicle deployment that are critical to decarbonizing
the transportation sector'').
---------------------------------------------------------------------------
Finally, even though many of the individual commenters expressly
opposed the Proposal, NHTSA notes that many of these same comments
frequently invoked reasons that actually support the rationale for the
rulemaking. By far the most common theme developed in the individual
comments opposing the Proposal was a concern for states' rights and
skepticism of any approach that imposed an overgeneralized restriction
on the ability of local jurisdictions to respond to the diverse needs
of their respective communities.
These commentors opposed the Proposal based on a faulty assumption
that NHTSA's rulemaking proposed to delegate the authority to
California to set legally binding standards on the rest of the United
States.\54\ Of course, neither the Proposal nor today's repeal
delegates any authority to California or elsewhere. This rulemaking
does not even take a substantive position on the status of any
individual program of a state or local jurisdiction. Instead, repealing
the SAFE I Rule merely repeals an impermissible layer of prescriptive
preemption requirements, which the Agency was not authorized to
promulgate, and which improperly ignore legally relevant preemption
considerations. Through such a repeal, NHTSA also removes unnecessary
and inappropriate restrictions on potential policy flexibility and
innovation at the state and local levels as it relates to motor vehicle
emissions regulations. This additional flexibility at state and local
levels may even address this theme expressed in many of these
individual comments, which consistently opposed measures that applied
an overbroad or one-size-fits-all approach to state and local concerns.
---------------------------------------------------------------------------
\54\ See, e.g., Mark Franck, Docket No. NHTSA-2021-0030-0043
(June 3, 2021) (``California should not be deciding what kind of
cars the rest of the country can buy. This damaging new rule, would
allow California to make special regulations that the rest of us
would be required to follow.'').
---------------------------------------------------------------------------
B. NHTSA Is Finalizing Its Repeal of the SAFE I Rule in Its Entirety
After evaluating the public's input regarding the Proposal and
further assessing the Agency's concerns regarding the SAFE I Rule,
NHTSA is finalizing its proposed approach of repealing the SAFE I Rule
in its entirety, including both the regulatory text and the other
pronouncements that the Agency made in the document about EPCA
preemption. The Agency concludes that this approach is both legally
required and appropriate for several distinct reasons. First, as
described further in Section II.B.i., the Agency lacked the authority
to promulgate regulations on preemption, as the SAFE I Rule attempted
to do. Second, as described in Section II.B.ii., regardless of whether
NHTSA actually had authority for the SAFE I Rule, the Rule was still
promulgated without regard for legally relevant and important
considerations that should have informed the preemption analysis.
Instead of accounting for those issues before fundamentally altering
relied-upon federalism interests, the SAFE I Rule instituted a rigid
and categorical preemption framework without regard for whether a
narrower approach was available. Third, irrespective of a lack of
authority or the Rule's overly broad scope, the SAFE I Rule still
warrants repeal in order to mitigate the unnecessary complexity and
potential confusion the SAFE I Rule injected into the EPCA preemption
framework. By repealing this erroneous framework and refocusing the
preemption analysis on the original statutory language, this final rule
also provides space for the Agency to more carefully and appropriately
[[Page 74245]]
incorporate those considerations into any future action that may become
necessary with respect to EPCA preemption.
In all of these matters, the Agency remains mindful that EPCA does
not require NHTSA to speak substantively on EPCA preemption, and
certainly not through the promulgation of legislative rules. Under the
unambiguous language of EPCA, the Agency could indefinitely remain
silent as to Section 32919 without running afoul of any congressional
directive or statutory mandate. As such, even if the SAFE I Rule's
supporters have policy preferences for wanting the Rule to remain,
there is indisputably no statutory requirement for the Rule. Thus, upon
reconsideration, NHTSA concludes that a rule of this kind, which
suffers from legal deficiencies and was imprudent for the Agency to
issue, is particularly appropriate for repeal.
i. NHTSA Is Finalizing Its Proposal To Repeal the SAFE I Rule in Full
Due to a Lack of Authority for the Original Rulemaking
a. Section 32919 Did Not Authorize NHTSA To Dictate Preemption in the
Manner Attempted by the SAFE I Rule
NHTSA concludes that a repeal of the SAFE I Rule is legally
required because the Agency lacked the requisite authority to codify
the standalone regulations promulgated by the SAFE I Rule. The Agency
maintains the Proposal's view that in promulgating the SAFE I Rule,
NHTSA attempted to exercise a legislative rulemaking function by
establishing binding, express preemption requirements, which sought to
control, rather than advise, the public (including states and local
jurisdictions). In order to set these regulatory mandates, Congress
would have had to first provide authority to NHTSA to act in such a
manner. However, the Agency has determined that Congress did not intend
for Section 32919 to provide NHTSA authority to institute additional
express preemption terms, or to codify the scope of EPCA preemption
through legislative rulemaking.
1. The SAFE I Rule Codified Legislative Rules, Which Sought To Impose
Standalone Preemption Requirements
Before describing the limitations on NHTSA's authority, the Agency
first confirms the Proposal's understanding of the SAFE I Rule as
codifying legislative rules, which sought to institute binding
preemption requirements. NHTSA recognizes that although numerous
commenters agreed with the Proposal on this issue, several commenters
opposing the Proposal contested either the legislative status of the
SAFE I Rule or whether the distinction even matters for this
reconsideration. To be clear, NHTSA considers a repeal of the SAFE I
Rule both appropriate and necessary for the reasons described
throughout this final rule, irrespective of whether one considers the
Rule to be legislative, interpretative, or any other form of agency
statement. Nevertheless, NHTSA still views the SAFE I Rule as
displaying the hallmarks of a legislative regulatory action. As such,
the Agency starts the authority discussion with this issue.
In this respect, the Agency distinguishes between a legislative
rule, ``which is a rule that is intended to have and does have the
force of law,'' and an interpretative rule, which ``does not have the
force of law and is not binding on anyone.'' \55\ For this reason,
legal scholars have often noted that while interpretative rules may
provide guidance to the public or ``persuad[e a] court that the
agency's interpretation is correct,'' \56\ they ultimately lack a
binding effect, serving only to ``advise the public.'' \57\ As such, an
interpretative rule ``does not contain new substance of its own'' but
is simply a conduit for understanding a pre-existing obligation already
established by the statute under interpretation.\58\ In contrast,
legislative rules have long been understood as imposing binding
obligations that ``affect[ ] individual rights and obligations.'' \59\
Further, ``the exercise of quasi-legislative authority by governmental
departments and agencies must be rooted in a grant of such power by the
Congress and subject to limitations which that body imposes.'' \60\
Consequently, for NHTSA to have validly promulgated legislative rules
in the SAFE I Rule, Congress must have first provided the authority to
the agency to do so.
---------------------------------------------------------------------------
\55\ Nat'l Latino Media Coal. v. F.C.C., 816 F.2d 785, 787-88
(D.C. Cir. 1987) (explaining further that ``A valid legislative rule
is binding upon all persons, and on the courts, to the same extent
as a congressional statute. When Congress delegates rulemaking
authority to an agency, and the agency adopts legislative rules, the
agency stands in the place of Congress and makes law.'').
\56\ See Richard J. Pierce, Jr. & Kristin E. Hickman,
Administrative Law Treatise Sec. 4.5 (6th Edition, 2020-1 Cum.
Supp.) (``The agency's interpretative rule serves only the function
of potentially persuading the court that the agency's interpretation
is correct . . . Correspondingly, members of the public may choose
for practical reasons to comply with an interpretative rule.'').
\57\ See Attorney General's Manual on the Administrative
Procedure Act (1947) at 30 n.3.
\58\ Nat'l Latino Media Coal., 816 F.2d at 788.
\59\ See Morton v. Ruiz, 415 U.S. 199, 232 (1974).
\60\ See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).
---------------------------------------------------------------------------
Within this backdrop, NHTSA views the SAFE I Rule as clearly
intending to establish binding preemption requirements, which
affirmatively prohibited programs of states and local jurisdictions. As
described further below, both the regulatory text and the manner in
which NHTSA contemporaneously described its rulemaking lead to the
conclusion that the SAFE I Rule was not an effort to inform, but an
effort to issue binding, prescriptive requirements with the force and
effect of law. This conclusion is supported by multiple facets of the
rulemaking, many of which were illustrated through the comments.
Several commenters to the Proposal disagreed that the SAFE I Rule
was a legislative rule or that the distinction between a legislative
and interpretive rule mattered. Although the Agency responds more
specifically to such detailed concerns below, NHTSA nevertheless
considers the legislative status of the SAFE I Rule ultimately a
straightforward outgrowth of the regulatory background and applicable
law. While courts and legal scholars have set forth numerous multi-part
tests or thresholds for trying to find the demarcation point between
interpretative and legislative rules, they all overwhelmingly seek to
answer a question much different, and frequently more complicated, than
that presented in this rulemaking. In the typical fact pattern,
encountered by many courts, an agency seeks to characterize its own
action as interpretative and valid absent the undertaking of notice-
and-comment procedures, while challengers (often the regulated entities
most affected by the action) argue that the rule alters their
substantive obligations and necessitates notice-and-comment procedures
before promulgation.\61\ As such, these multifaceted judicial doctrines
seek to aid a reviewing court in reconciling the contradictory
positions between the regulators and the regulated, in order to
accurately understand how extensively the agency's action actually
attempted to affect the rights and obligations of the regulated
parties.
---------------------------------------------------------------------------
\61\ See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165 (7th
Cir. 1996).
---------------------------------------------------------------------------
None of these circumstances apply to the SAFE I Rule or this
Proposal. In the Proposal, NHTSA, as the agency that promulgated the
regulations in question in the SAFE I Rule (after notice-and-comment),
expressed its own concern that it had issued legislative rules in
excess of its authority, and acknowledged that the rules attempted
[[Page 74246]]
to impose substantive restrictions on regulated entities--namely,
states and local jurisdictions.\62\ In turn, the state and local
governments that submitted comments overwhelmingly agreed with the
Agency's characterization of its own rule. This sentiment was
exemplified by a comment from California's South Coast Air Quality
Management District, which directly expressed that ``[t]he Preemption
Rule has every indicium of being a legislative rule, which purported to
change the legal rights and obligations of states by its action.'' \63\
As described in greater detail in Section II.B.ii. of this final rule,
these commenters provided tangible examples of actual hardships those
states feared would ensue from the extent to which the SAFE I Rule
disrupted their state regulatory agendas and curtailed their previously
understood federalism rights. These concerns make clear that, by and
large, states and local jurisdictions considered the SAFE I Rule as
more than simply interpretative guidance on an EPCA preemption
restriction that already applied to them, but as a new regulatory
measure that would serve to invalidate existing state programs and ones
those entities hoped to formulate in the future.\64\
---------------------------------------------------------------------------
\62\ CAFE Preemption NPRM, 86 FR at 25985 (``The Agency has
tentatively determined that these regulations are legislative rules,
which seek to preempt state regulations in more specific terms than
the express preemption provision already present in EPCA.'').
\63\ South Coast Air Quality Management District, Docket No.
NHTSA-2021-0030-0446 (June 11, 2021).
\64\ State of California et al., Docket No. NHTSA-2021-0030-0403
(describing the SAFE I Rule's disruption of state programs and
reliance interests in established regulatory approaches).
---------------------------------------------------------------------------
This is an understandable expectation, as both NHTSA and EPA also
contemporaneously treated the SAFE I Rule as binding and effectuating
change. The SAFE I Rule even expressly described the rulemaking action
as ``effectuating Congress's goal.'' \65\ Similarly, commenters
emphasizing this point also referenced language from the final rule
preamble of the SAFE I Rule, in which the Agencies recognized that ``
`certain States may need to work with EPA to revise their [State
Implementation Plans] in light of this final action'' to remove
purportedly preempted standards.\66\ In the SAFE I joint agency action,
EPA also characterized NHTSA's preemption regulations as determinative,
noting that ``in light of NHTSA's determinations'' on EPCA preemption,
EPA's grant of a waiver for ``California's program was invalid, null,
and void.'' \67\ These characterizations help to demonstrate that the
regulated community and the public could reasonably have expected that
NHTSA's SAFE I Rule regulations presented mandatory and legally
effective requirements.
---------------------------------------------------------------------------
\65\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One
National Program, Final Rule, 84 FR 51310, 51316 (Sept. 27, 2019)
(emphasis added).
\66\ South Coast Air Quality Management District, Docket No.
NHTSA-2021-0030-0446 (June 11, 2021) (quoting NHTSA, EPA, Withdrawal
of Waiver; Final Rule, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51324 (Sept. 27, 2019)).
\67\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One
National Program, Final Rule, 84 FR 51310, 51356 (Sept. 27, 2019).
---------------------------------------------------------------------------
This view was echoed by many other commenters who supported this
Proposal.\68\ Even commenters who opposed the current Proposal and
argued that the SAFE I Rule was merely interpretative (or contended the
distinction failed to matter), still treated the SAFE I Rule as a
regulatory linchpin that was critical to keeping states and local
jurisdictions from pursuing regulatory programs that they would
otherwise undertake. For example, one commenter likened the repeal of
the SAFE I Rule to a ``dereliction'' of NHTSA's duty, akin to
permitting states to run amok in ``lawlessness'' in the absence of
regulations and removing the sole bulwark to ``California's impending
balkanization,'' all the while insisting that the ``[t]he One National
Program rules do not satisfy the intransitivity test for legislative
rules'' because their restrictions were present all along in Section
32919.\69\ This concern, though, would only be valid if the SAFE I Rule
were binding and not a mere interpretation. Thus, it becomes clear
that, ultimately, all commenters--both supportive of and opposed to the
Proposal--treat the SAFE I Rule as a sweeping measure, which was
largely expected to bind regulated entities. In other words, as a
legislative rule.
---------------------------------------------------------------------------
\68\ See, e.g., Center for Biological Diversity et al., Docket
No. NHTSA-2021-0030-0369 (June 11, 2021).
\69\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
---------------------------------------------------------------------------
The SAFE I Rule, thus, was widely viewed as establishing new legal
restrictions intended to broadly alter the pre-existing EPCA preemption
landscape. As described in the Proposal, in the SAFE I Rule, NHTSA
codified four provisions in the CFR, each of which purported to
directly regulate the scope of preemption under EPCA. Specifically,
NHTSA promulgated 49 CFR 531.7 and 533.7, both of which were nearly
verbatim codifications of the statutory text, and an identical appendix
B to both Parts 531 and 533, which included a description of certain
state regulations also described as preempted. None of these provisions
instituted any new compliance or enforcement standards relating to
NHTSA's CAFE program. Instead, the provisions, by their own terms,
solely sought to codify into NHTSA's regulations a binding framework to
govern the scope of EPCA preemption.
As both the Proposal and many commenters pointed out, the
imperative and mandatory language of the SAFE I Rule illustrates the
degree to which the SAFE I Rule imposed demands upon regulated entities
(and expected compliance) rather than helpfully advised them of a
possible construction of pre-existing statutory language. As the
Preamble to the SAFE I Final Rule described, these provisions sought to
``ma[ke] explicit that state programs to limit or prohibit tailpipe GHG
emissions or establish ZEV mandates are preempted.'' \70\ In announcing
the SAFE I Rule, NHTSA repeatedly described the final rules in terms
that appeared to confer upon them legally binding connotations. For
instance, the Agency noted that through the final rule, ``NHTSA intends
to assert preemption'' \71\ and characterized the regulations as
``implementing'' \72\ a preemption requirement. Subpart ``a'' of each
appendix B to parts 531 and 533 even labels the regulatory text as
``Express Preemption'' provisions, before proceeding to categorically
assert, in mandatory terms, what types of state laws were
preempted.\73\
---------------------------------------------------------------------------
\70\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310 (Sept. 27, 2019).
\71\ Id. at 51317.
\72\ Id. at 51318.
\73\ See, e.g., 49 CFR part 533, app. B(a)(2) (``As a law or
regulation of a State or a political subdivision of a State related
to fuel economy standards, any state law or regulation regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles is
expressly preempted under 49 U.S.C. 32919.'').
---------------------------------------------------------------------------
A few commenters sought to diminish the importance of such
mandatory language, contending, for instance, that ``nothing'' would
have practically changed had the Agency employed more permissive or
advisory language in the SAFE I Rule instead of the imperative language
used throughout both the codified text and preamble.\74\ This
argument's supposition is undermined by the numerous comments
[[Page 74247]]
from states and local jurisdictions--the entities to whom such language
was primarily directed--who consistently made clear that they
understood the Rule's regulations as constricting their activities
rather than merely advising how Section 32919 may be applied at some
indeterminate point in the future. Moreover, the Agency's own
statements in the SAFE I Rule disprove this argument, as they reveal a
definitive expectation that states would curb their actions in order to
meet the newly demanded scope of preemption.\75\
---------------------------------------------------------------------------
\74\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021) (rhetorically asking ``If the Agency had done
this, what would change in the real world compared to what the
Agency actually did? In a word, nothing.'').
\75\ See supra nn.66-67.
---------------------------------------------------------------------------
More fundamentally though, discounting the importance of the
Agency's own language in the precise rulemaking record in question too
narrowly focuses the legislative rule inquiry. Even the cases cited by
opposing commenters on this issue, such as American Mining Congress v.
Mine Safety & Health Administration, expressly recognized that all of
the avenues and tests for distinguishing between legislative and
interpretative rules are ultimately just different ways of asking
whether ``the agency intended to exercise'' a delegated legislative
power to promulgate rules that impose binding obligations with ``legal
effect.'' \76\ As noted above, this inquiry is much more
straightforward in a situation, such as here, where the agency itself
believes that this is the intent of the rule and undertook the notice-
and-comment procedures required under the Administrative Procedure Act
(APA) to issue legally binding regulations, without in any way implying
that those steps were optional. For this reason, American Mining
Congress underscored that despite any of the more complicated analyses
that may apply when an agency disagrees on a rule's legislative status,
the entire question is resolved if in the rulemaking the agency simply
``choose[s] explicitly to invoke its general legislating authority.''
\77\ In such a case, the rule should be ``presumably treat[ed] . . . as
an attempted exercise of legislative power.'' \78\
---------------------------------------------------------------------------
\76\ 995 F.2d 1106, 1109 (D.C. Cir. 1993) (``Our own decisions
have often used similar language, inquiring whether the disputed
rule has `the force of law'. We have said that a rule has such force
only if Congress has delegated legislative power to the agency and
if the agency intended to exercise that power in promulgating the
rule.'') (internal citations omitted).
\77\ Id. at 1111.
\78\ Id.
---------------------------------------------------------------------------
Here, the SAFE I Rule clearly--and explicitly--expressed an
understanding that the new rules created legal obligations that would
bind states and local jurisdictions, as described above. Moreover, even
the mechanics of the SAFE I Rule's promulgation demonstrate NHTSA's
awareness that it was codifying legislative rules that instituted legal
requirements. Commenters defending the SAFE I Rule stressed that the
rulemaking undertook all of the procedural steps required by the APA
for a legislative (but not an interpretative) rule.\79\ This procedural
regularity only underscores the SAFE I Rule's intended legislative
function, as it illustrates the lengths the Agency went to ensure that
the regulations codified by the SAFE I Rule were procedurally
defensible and binding.\80\ Moreover, the SAFE I Rule was codified into
NHTSA's own regulations in the Code of Federal Regulations (CFR)--a
step that courts, including American Mining Congress, have often
considered helpful in understanding the Agency's intent.\81\ The Agency
also does not view the requirements in the Appendices as somehow
procedurally cured or automatically interpretations simply because they
appear in appendices rather than separately numbered regulations. It is
not uncommon for agencies, including NHTSA, to include regulatory
requirements in appendices.\82\ The appendices here continued that
approach, with the facial language of the appendices codified in the
CFR continuously invoking the same binding language described
throughout this final rule.
---------------------------------------------------------------------------
\79\ See, e.g., National Automobile Dealers Association, Docket
No. NHTSA-2021-0030-0435 (June 10, 2021) (``the regulatory language
set out in the SAFE I Rule was adopted in full compliance with all
applicable procedural requirements.'').
\80\ See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158,
173 (2007) (describing how an agency's use of ``full notice-and-
comment rulemaking procedures'' suggested the agency intended to
promulgate a legislative rule). To be clear, the mere fact that an
Agency requests comment on an action before finalizing it is not
itself dispositive evidence that an action is a legislative rule, as
there are many strong policy reasons for agencies to seek public
input on documents beyond when they are expressly required to do so
by statute. However, in those instances, the agency will generally
make clear that the document at issue is an interpretation, policy
statement, or other sort of guidance document, which stands in
significant contrast to the approach taken in the SAFE I rulemaking.
\81\ Am. Min. Cong., 995 F.2dat 1109 (``an agency seems likely
to have intended a rule to be legislative if it has the rule
published in the Code of Federal Regulations''). NHTSA recognizes
that, as at least one commenter pointed out, some subsequent cases
have deemed a rule interpretative even if published in the CFR. See,
e.g., Health Ins. Ass'n of Am., Inc. v. Shalala, 23 F.3d 412, 423
(D.C. Cir. 1994). While such cases may indicate that a CFR
publication is not dispositive of the issue, they do not eliminate
the relevance of this step as a helpful piece of the larger puzzle
of identifying the agency's intent to codify binding regulations.
\82\ See, e.g., 49 CFR part 564, Appendices A-B (listing
information required to be submitted to the Agency regarding certain
replaceable light sources in motor vehicles).
---------------------------------------------------------------------------
Finally, a joint comment submitted by the Urban Air Initiative,
among others, raised an issue that highlights one of the most telling
aspects of the SAFE I Rule's legislative character.\83\ Specifically,
after arguing the Rule did not satisfy governing tests for legislative
rules, the comment reached the ultimate conclusion that the legislative
versus interpretative distinction was irrelevant to the SAFE I Rule's
viability. The comment contended that, either way, the SAFE I Rule was
a valid outgrowth of NHTSA's interpretative authority in administering
EPCA and the CAFE program. To reach this conclusion, the comment
focused at length on the concept of the ``force of law'' and the
intransitivity test for legislative rulemaking, stressing that the SAFE
I Rule embodied NHTSA's interpretative authority because it simply
defined a pre-existing and already enforceable obligation set by
Section 32919. And, in that sense, even if the SAFE I Rule's
interpretation was binding, such a result was permissible as long as
the APA's notice and comment procedures were followed. At least one
other comment similarly remarked that whether the SAFE I Rule is
legislative or interpretative ``may not make much of a difference as a
practical matter.'' \84\ The theme in such comments is a baseline
assumption that the SAFE I Rule did not ``itself impose[ ] federal
regulatory preemption'' because, they stress, Section 32919 already
imposed a self-executing preemption requirement.\85\
---------------------------------------------------------------------------
\83\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
\84\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
\85\ See id.
---------------------------------------------------------------------------
Ultimately, the Agency believes such comments erroneously comingled
the substantive question about the scope of EPCA's preemption
requirements with the unrelated question of whether the SAFE I Rule's
regulations sought to codify prescriptive requirements that implemented
Section 32919 in a legislative manner. The Urban Air Initiative's joint
comment characterized these questions as one and the same, arguing that
as long as the substance of Section 32919 supported the preemption
requirements promulgated in the SAFE I Rule, the legislative versus
interpretative distinction was ``irrelevant'' because either way NHTSA
was simply elucidating requirements that already existed under
EPCA.\86\
[[Page 74248]]
However, blending the substance and form in this way ignores a
longstanding recognition that whether legislative rules validly
prescribe conduct in a binding way is a distinct issue from whether the
requirements those rules impose are consistent with either the
underlying statute or regulation.
---------------------------------------------------------------------------
\86\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021).
---------------------------------------------------------------------------
Rather than comparing the substantive scope of the underlying
statute and the agency's subsequent action, the legislative rule
inquiry instead looks to the degree to which the standard announced by
the agency went ``beyond a process reasonably described as
interpretation'' by turning the original statutory standard into a
rigid threshold that prescribed specific conduct.\87\ In this sense, an
agency performs a ``legislative function'' by applying a ``value
judgement[ ]'' to a broader statutory framework and turning that
judgment into a static requirement, which imposes a rigid threshold for
compliance.\88\ In such situations, the rule announced by the agency is
legislative in that it forms a standalone requirement, which is no
longer tied ``to the animating standard'' of the statute, but
``stand[s] free of the standard'' as it is ``self-contained'' and
``unbending.'' \89\ Examples of these types of legislative rules span
from a set of investment conditions fashioned from a general statutory
standard of ``reasonable costs'' \90\ to an agency's mathematical
analysis that turned a statutory standard into a requirement that a
fence meet specific dimensions.\91\ While the nature or type of rule
resulting from the legislative undertaking may vary, the focus of the
inquiry is on the transformation of a statutory standard into a set of
specifically enumerated rules that prescribe conduct.
---------------------------------------------------------------------------
\87\ See Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 170 (7th
Cir. 1996).
\88\ Id.
\89\ Id. at 171.
\90\ See Cath. Health Initiatives v. Sebelius, 617 F.3d 490, 496
(D.C. Cir. 2010).
\91\ See generally Hoctor, 82 F.3d 165.
---------------------------------------------------------------------------
Importantly, this legislative rule inquiry is wholly distinct from
the question about whether the legislative rules would be a permissible
reading of the underlying statute or regulation. In fact, courts
conducting these analyses often expressly make clear that the
legislative rule determination does not require them to reach the
question of whether those rules would have been subsumed within the
respective scopes of the statutes or any other existing regulations
that the agencies had already promulgated. For instance, through this
legislative rule inquiry ``[w]e may assume, without deciding, that the
[requirements] are an extension'' of the statute and ``consistent''
with existing regulatory provisions.\92\ Even so, ``neither assumption
leads to the conclusion that the [requirements] represent an
interpretation.'' \93\ Instead, what matters is whether the agency
performs merely an act of interpretation or instead operates in an
essentially legislative capacity by crystallizing a broader statutory
standard into specific prescriptive requirements.
---------------------------------------------------------------------------
\92\ Id.
\93\ Id.
---------------------------------------------------------------------------
Applying this same framework, even assuming for purposes of
discussion (like those courts) that the SAFE I Rule's regulations
imposed a substantive obligation that was consistent with the ``related
to'' standard in Section 32919, the regulations still undeniably
prescribed conduct in a way that was legislative rather than
interpretative. Specifically, the SAFE I Rule's regulations turned the
baseline standard of Section 32919, ``related to,'' into an entire list
of specifically enumerated conduct that created a prescriptive
threshold for EPCA preemption.
Under Section 32919, ``a State or a political subdivision of a
State may not adopt or enforce a law or regulation related to fuel
economy standards or average fuel economy standards for automobiles
covered by an average fuel economy standard under [Chapter 329].'' \94\
This statutory framework contains a general standard by which to
evaluate the application of EPCA preemption: ``related to.'' In the
SAFE I Rule, NHTSA applied a ``value judgment'' \95\ to this statutory
standard by undertaking what the Rule called a ``scientific'' and
``mathematical'' evaluation of fuel economy and emissions concepts.\96\
Through this endeavor, the SAFE I Rule fashioned a set of highly
prescriptive requirements that precisely and rigidly dictated when a
state or local jurisdiction's program ``related to'' fuel economy
standards for purposes of EPCA. For the question of whether the rule
was legislative or interpretive, it is wholly irrelevant to determine
whether those prescriptive requirements were reasonable understandings
of the ``related to'' statutory standard. All that matters for the
legislative rule analysis is that, once codified, the regulations from
the SAFE I Rule served as standalone standards for EPCA preemption. The
SAFE I Rule extrapolated from the original statutory standard and
articulated express prohibitions which, once codified, were intended to
and capable of fully controlling the preemption analysis in lieu of the
original statutory language.\97\
---------------------------------------------------------------------------
\94\ 49 U.S.C. 32919(a).
\95\ Hoctor, 82 F.3d at 170.
\96\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One
National Program, Final Rule, 84 FR 51310, 51319-20 (Sept. 27, 2019)
(``The foundational factual analysis involves the scientific
relationship between automobile fuel economy and automobile tailpipe
emissions of carbon dioxide. NHTSA discussed this scientific
relationship in detail.'').
\97\ See 49 CFR part 531, Appendix B(a)(E)(3).
---------------------------------------------------------------------------
For example, Appendix B to Parts 531 and 533 expressly declares the
preemption of ``any law or regulation of a State or a political
subdivision of a State'' solely based on the fact that the program in
question ``ha[s] the direct or substantial effect of regulating or
prohibiting tailpipe carbon dioxide emissions from automobiles.'' \98\
A similar standard is repeated multiple times in the SAFE I Rule's
regulations, with subsection (a)(E)(2) also flatly preempting ``any law
or regulation'' that ``regulates or prohibits tailpipe carbon dioxide
emissions automobiles,'' \99\ and subsection (b) codifying identical
categorical thresholds for ``implied preemption.'' \100\ These
categorical thresholds represent NHTSA's ``scientific'' and
``mathematical'' judgment in the SAFE I Rule as to how EPCA's animating
``related to'' standard would look as a prescriptive requirement. But
in the SAFE I Rule, NHTSA went beyond just providing guidance about how
NHTSA's views on the subject should inform a state or local
jurisdiction who wished to understand how their program might fit
within EPCA's ``related to'' standard. Instead, NHTSA announced those
positions in the form of regulations of general applicability that
formed their own regulatory standards. These new regulations were
``self-contained'' and ``unbending'' in that any programs that
satisfied the strict regulatory text were now labeled as conclusively
preempted by NHTSA. And, this approach prevented a more careful
analysis of whether it is possible that any state or local standard
that met the static preemption threshold imposed by these regulations
may not actually ``relate to'' fuel economy for any particular reason
(such as perhaps the fact-specific variables foreclosed from
consideration as described below in Section II.B.ii.). In this sense,
once in place, the SAFE I Rule's regulations were intended to
functionally replace the EPCA preemption language in any analysis of
whether a particular program was preempted, without a need to reference
[[Page 74249]]
the original statutory text or underlying caselaw.\101\ The SAFE I Rule
even acknowledges the standalone nature of the new regulations,
explaining that the codified ``regulations are operable without regard
to any specific Federal standards and requirements . . . or other parts
of the Code of Federal Regulations.'' \102\
---------------------------------------------------------------------------
\98\ Id.
\99\ 49 CFR 531.7(a)(E)(2).
\100\ 49 CFR 531.7(b).
\101\ NHTSA stresses that it is not necessary to substantively
determine whether ``related to'' could be properly interpreted to
include these concepts in order to reach this point, nor does the
Agency make such a determination here. What matters is that, once
codified, the regulation now forms the operative standard, which
purports to be legally binding and capable of standalone
application. In that sense, the regulation functions as a
legislative rule, which requires legislative rulemaking authority to
promulgate, no matter how proper or improper the substantive content
of the rule may be.
\102\ NHTSA, EPA, Withdrawal of Waiver; Final Rule, The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One
National Program, Final Rule, 84 FR 51310, 51315 (Sept. 27, 2019)
(explaining how the SAFE I Rule was a standalone rulemaking action
that did not need to accompany a CAFE standards rulemaking)
(emphasis added).
---------------------------------------------------------------------------
While Section II.B.ii. below explains how this inflexible standard
inappropriately precludes individualized considerations, the self-
contained nature of the standard also demonstrates how the SAFE I
Rule's regulations operate as prohibitions that turn a broader
statutory standard into a set of rules that states and local
jurisdictions must follow. This process of fashioning a set of specific
and prescriptive requirements out of an underlying statutory standard
involves a legislative function of the agency and the rules that
emerged from this process are legislative in nature. And the law is
clear that an agency may prescribe conduct and issue such legislative
rules only if provided the authority to do so by Congress.\103\ EPCA
provides NHTSA with no such authority.
---------------------------------------------------------------------------
\103\ See, e.g., Louisiana Pub. Serv. Comm'n v. F.C.C., 476 U.S.
355, 374 (1986).
---------------------------------------------------------------------------
2. EPCA Did Not Authorize NHTSA To Expressly Establish New EPCA
Preemption Requirements
Once the SAFE I Rule's regulations are properly understood as
seeking to impose binding legal requirements, it becomes clear that the
Rule is premised on the need for NHTSA to possess the requisite
authority to validly set such mandates. The Proposal generated a number
of comments on this authority issue. A large number of those comments
agreed with the Proposal's concerns about a lack of authority for the
rulemaking, while several commenters defended the legitimacy of the
Rule. But while these comments may have disagreed on the existence of
authority or the extent to which NHTSA's authorities extended, they did
not generally dispute the Proposal's recognition of the fundamental
principle that an agency must possess authority to issue legislative
rules.
As the Proposal explained, the regulatory authority of federal
agencies extends only insofar as Congress permits.\104\ Consequently,
an agency ``may act only when and how Congress lets [it].'' \105\ These
restrictions extend to all aspects of an agency's regulatory activity--
including a rulemaking and ultimately derive from Congress.\106\ As
such, the matters upon which an agency may promulgate rules imbued with
the force and effect of law depend upon the extent to which the Agency
has the appropriate statutory authority.\107\
---------------------------------------------------------------------------
\104\ Ry. Labor Executives' Ass'n v. Nat'l Mediation Bd., 29
F.3d 655, 670 (D.C. Cir. 1994) (en banc) (stressing that
``[a]gencies owe their capacity to act to the delegation of
authority, either express or implied, from the legislature'').
\105\ Cent. United Life Ins. Co. v. Burwell, 827 F.3d 70, 73
(D.C. Cir. 2016).
\106\ Id.
\107\ See, e.g., Adams Fruit Co. v. Barrett, 494 U.S. 638, 650
(1990) (determining that a Department of Labor regulation exceeded
the scope of authority delegated by a statute the agency
administered).
---------------------------------------------------------------------------
Ultimately, as the Proposal expressed, since an agency lacks
plenary authority, the delegation of one power to an agency does not
necessarily include other powers, even if they are related.\108\ This
applies even when the authority is analogous. For instance, the D.C.
Circuit has rejected an agency's argument ``that it possesses plenary
authority,'' holding instead ``that the fact that the Board is
empowered'' in a particular circumstance does not ``mean[ ] the Board
therefore enjoys such power in every instance'' in which a similar
question arises.\109\ Accordingly, construing an agency's authority
requires a close examination of the precise power delegated by Congress
and how such authority may differ, even if slightly, from other
authority that Congress may reserve.
---------------------------------------------------------------------------
\108\ Ry. Labor Executives' Ass'n., 29 F.3d at 670 (en banc).
\109\ Id.
---------------------------------------------------------------------------
The need for sufficient authority does not fade when an agency
seeks to promulgate regulations expressly dictating preemption. In
fact, as the Proposal expressed, the legitimacy of an agency's exercise
of preemption power through legislative rulemaking is principally a
question of the extent of authority delegated to the agency. As such,
``in a situation where state law is claimed to be pre-empted by Federal
regulation, a narrow focus on Congress' intent to supersede state law
[is] misdirected.'' \110\ Instead, when considering an agency's
preemptive authority, ``the inquiry becomes whether the federal agency
has properly exercised its own delegated authority rather than simply
whether Congress has properly exercised the legislative power.'' \111\
An agency must draw preemption authority from definitive sources, as
the governing framework ``does not create preemption authority out of
thin air.'' \112\ As the Supreme Court has made clear:
---------------------------------------------------------------------------
\110\ City of New York v. F.C.C., 486 U.S. 57, 64 (1988).
\111\ Id.
\112\ See, e.g., Mozilla Corp. v. FCC, 940 F.3d 1, 78 (D.C. Cir.
2019) (determining that neither express nor ancillary authority nor
other doctrines, such as the impossibility exception, could justify
the FCC's assertion of preemption authority for a particular
action).
a federal agency may pre-empt state law only when and if it is
acting within the scope of its congressionally delegated authority.
This is true for at least two reasons. First, an agency literally
has no power to act, let alone pre-empt the validly enacted
legislation of a sovereign State, unless and until Congress confers
power upon it. Second, the best way of determining whether Congress
intended the regulations of an administrative agency to displace
state law is to examine the nature and scope of the authority
granted by Congress to the agency.\113\
---------------------------------------------------------------------------
\113\ Louisiana Pub. Serv. Comm'n, 476 U.S. at 374.
In response to the Proposal, many commenters repeatedly expressed a
concern that NHTSA lacked the authority for the SAFE I Rule.\114\ In
most cases, these comments echoed rationales expressed in the Proposal
for why such authority was lacking.\115\ Accordingly,
[[Page 74250]]
many of them also read Section 32919 as silent on any role for NHTSA in
further dictating the scope of EPCA preemption,\116\ understood Section
32919's self-executing nature as actually foreclosing regulations that
dictate additional express preemption requirements,\117\ and viewed
general delegations of authority to the Secretary of Transportation
insufficient to support such a sweeping act of preemption.\118\
---------------------------------------------------------------------------
\114\ Center for Biological Diversity et al., Docket No. NHTSA-
2021-0030-0369 (June 11, 2021); State of California et al., Docket
No. NHTSA-2021-0030-0403 (June 11, 2021); South Coast Air Quality
Management District, Docket No. NHTSA-2021-0030-0446; National
Association of Clean Air Agencies (NACAA), Docket No. NHTSA-2021-
0030-0140 (June 10, 2021); Maine Department of Environmental
Protection, Docket No. NHTSA-2021-0030-0249 (June 10, 2021); Tesla,
Inc. Docket No. NHTSA-2021-0030-0398 (June 11, 2021); Nevada
Division of Environmental Protection, Docket No. NHTSA-2021-0030-
0362 (June 11, 2021).
\115\ A few comments go further and suggest that NHTSA not only
lacks legislative authority with respect to EPCA preemption, but
interpretative authority as well. See, e.g., Northeast States for
Coordinated Air Use Management, Docket No. NHTSA-2021-0030-0300
(June 11, 2021) (noting that ``the agency lacks statutory authority
to define the scope of EPCA preemption through legislative or
interpretative rules'') (emphasis added). In response, NHTSA
stresses that it continues to believe that the Agency may offer
interpretations or guidance as to its views. To be sure, NHTSA does
not agree with other commenters who argue that this interpretative
authority equates to the ability to issue binding interpretations.
See Urban Air Initiative et al., Docket No. NHTSA-2021-0030-0423
(June 11, 2021). But the Agency nevertheless maintains the view
expressed in the Proposal that NHTSA may properly announce
interpretative views about matters of EPCA preemption if so desired.
See CAFE Preemption NPRM, 86 FR at 25988 (``While NHTSA still
retains interpretative authority to set forth its advisory views on
whether a state regulation impermissibly conflicts with Federal law,
such authority does not support the power to codify binding
legislative rules on the matter.'').
\116\ See, e.g., Center for Biological Diversity et al., Docket
No. NHTSA-2021-0030-0369 (June 11, 2021) (stressing that Section
32919 ``does not mention the Secretary or contemplate Federal
regulations `to carry out' congressional intent to preempt State and
local laws.'').
\117\ See, e.g., National Coalition for Advanced Transportation,
Docket No. NHTSA-2021-0030-0310 (June 11, 2021).
\118\ See, e.g., Emmett Institute on Climate Change and the
Environment, Docket No. NHTSA-2021-0030-0218 (June 10, 2021)
(``NHTSA also lacked the ancillary authority to adopt the 2019
Rule.'').
---------------------------------------------------------------------------
These comments reinforce the Proposal's substantial doubts about
NHTSA's authority to promulgate the SAFE I Rules, which the Agency
crystalizes in this final rule into a firm conclusion that the
requisite authority does not exist. The lack of legal authority is most
clearly illustrated by the inadequacy of the two grounds articulated by
the SAFE I Rule (and comments who supported that position here) for the
proposition that NHTSA enjoys authority to promulgate the regulations:
(1) The general rulemaking authority of the Secretary of
Transportation; and (2) more generalized inferences from the spirit of
EPCA. The Agency finalizes its view that neither of these grounds
suffices.
a. No Direct Statutory Authority Enables NHTSA To Promulgate the SAFE I
Rule
First, NHTSA finalizes the view expressed in the Proposal that no
direct statutory source exists for the Agency to derive authority to
conduct the SAFE I rulemaking. In this respect, NHTSA focuses, in
particular, on the two statutory provisions that commenters supporting
the SAFE I Rule especially relied upon to argue that such authority
existed: 49 U.S.C. 322 and 49 U.S.C. 32919. Neither of these provisions
enables a legislative rulemaking action to establish new binding
preemption requirements.
This analysis starts with Section 322 because that is the only
source of statutory authority invoked in the SAFE I Rule. Notably, even
though EPCA speaks directly to the fuel economy preemption issue in
Section 32919, in the SAFE I rulemaking, NHTSA did not invoke Section
32919 to claim the authority to issue preemption regulations.\119\
Instead, NHTSA claimed authority based on the Secretary of
Transportation's ``general powers'' under Section 322 to ``carry out''
all responsibilities across the entire Department of Transportation.
NHTSA argued at the time that this authority was sufficient because the
Agency could not carry out its CAFE standard-setting responsibilities
in the face of state regulation that undermined its authority.\120\ In
the SAFE I Final Rule's most direct discussion of the issue of
authority to promulgate regulations concerning preemption, NHTSA linked
the perceived conflict between EPCA's purposes and state regulation to
the general delegation of authority to the Secretary to carry out his
duties. Specifically, after describing Section 322 as an express
authorization for the Secretary of Transportation ``to prescribe
regulations to carry out her duties and powers,'' and noting that
Chapter 329 of Title 49 delegated the Secretary's authority to NHTSA
for EPCA purposes, the Agency concluded in the SAFE I Rule that it
``ha[d] clear authority to issue this regulation under 49 U.S.C. 32901
through 32903 to effectuate a national automobile fuel economy program
unimpeded by prohibited State and local requirements.'' \121\ This is
because in the SAFE I Rule the Agency characterized that rulemaking as
simply ``carry[ing] out'' the preemption scope of Section 32919.\122\
---------------------------------------------------------------------------
\119\ See generally NHTSA, EPA, The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule Part One: One National Program, Final
Rule, 84 FR 51310, 51320 (Sept. 27, 2019).
\120\ See, e.g., id. at 51317.
\121\ Id. at 51320.
\122\ Id.
---------------------------------------------------------------------------
NHTSA concludes that the general authority for the Secretary to
``carry out'' his responsibilities across the entire Department of
Transportation cannot supplant the otherwise strong indication that
legally binding regulations on EPCA preemption exceed the scope of the
Agency's authority. Nothing in the comments undermines the Proposal's
straightforward recognition that Section 322 contains statutory
language of broad applicability that extends well beyond the CAFE
program and, indeed, well beyond NHTSA. It continues to seem especially
peculiar to derive preemption authority from Section 322 when EPCA
already contains an express preemption provision, which does not
provide NHTSA with a role in further defining that preemption with the
force and effect of law. Since Congress already crafted a specific
provision to describe EPCA preemption in Section 32919, the more
general terms of Section 322 would seem of much clearer applicability
if Section 32919 had otherwise delegated NHTSA certain authorities or
responsibilities to carry out. But as discussed below, Congress did
not, in EPCA, appear to charge NHTSA with any authority or
responsibility with respect to preemption regulations. Construing
Section 322's general terms to independently provide NHTSA with the
authority to issue legislative rules on EPCA preemption that override
Section 32919's notable silence as to any role for NHTSA would require
an extraordinarily expansive reading of Section 322, which neither
Section 322 nor EPCA could support.
Moreover, inserting Section 322 into EPCA in such a manner would
require a strained reading of EPCA, which contradicts the specific
approach Congress consistently employed throughout EPCA to provide
authority to the various agencies targeted by the statute. Unlike some
other enactments, which are primarily aimed at enabling a particular
agency or creating a specific program, EPCA sought to establish an
interagency framework for energy independence, which spanned a host of
agencies and their respective jurisdictions. For instance, at various
points, Congress directs portions of EPCA to a variety of agencies,
including but not limited to the Department of Transportation, the
Environmental Protection Agency, the Department of Justice, the Federal
Trade Commission, the Federal Maritime Commission,\123\ and the Federal
Power Commission.\124\ Consistent with this approach, the facial
language of EPCA tends to clearly state when and where Congress
intended to galvanize an agency into acting on a particular provision.
For instance, even just taking a few non-exhaustive examples from the
original language of the specific section of EPCA dedicated to
automotive fuel economy:
---------------------------------------------------------------------------
\123\ See generally The Energy Policy and Conservation Act of
1975, Public Law 94-163, 89 Stat. 871.
\124\ Id.
---------------------------------------------------------------------------
<bullet> Section 501(1) specifies that ``[t]he Secretary may
prescribe such rules as may be necessary to implement this paragraph,''
which concerns the definitions of an automobile.\125\
---------------------------------------------------------------------------
\125\ Id. Sec. 501(1) (``The term `automobile' means . . .'').
---------------------------------------------------------------------------
[[Page 74251]]
<bullet> Section 501(2) links the term passenger automobile to that
``which the Secretary determines by rule.'' \126\
---------------------------------------------------------------------------
\126\ Id. Sec. 501(2) (``The term `passenger automobile' means
. . .'').
---------------------------------------------------------------------------
<bullet> Section 502 describes the circumstances, in detail, by
which ``the Secretary shall prescribe, by rule, average fuel economy
standards.'' \127\
---------------------------------------------------------------------------
\127\ Id. Sec. 502 (``Average Fuel Economy Standards Applicable
to Each Manufacturer'').
---------------------------------------------------------------------------
<bullet> Section 505(a)(3) requires that ``the Secretary shall
prescribe rules setting forth the form and content of the reports
required under'' the Section.\128\
---------------------------------------------------------------------------
\128\ Id. Sec. 505(a)(3).
---------------------------------------------------------------------------
<bullet> Section 505(b)(1) describes the specific actions that the
Secretary of Transportation and the EPA Administrator may take, such as
conducting hearings, ``for the purpose of carrying out the provision of
this part.'' \129\
---------------------------------------------------------------------------
\129\ Id. Sec. 505(b)(1).
---------------------------------------------------------------------------
<bullet> Section 506(a)(3) requires that ``the form and content''
of labeling requirements ``shall be prescribed by the EPA Administrator
by rule.'' \130\
---------------------------------------------------------------------------
\130\ Id. Sec. 506(a)(3).
---------------------------------------------------------------------------
<bullet> Section 508(a)(3)(D) permits that ``the Secretary may
prescribe rules for purposes of carrying the provisions of this
paragraph,'' which pertains to civil penalties.\131\
---------------------------------------------------------------------------
\131\ Id. Sec. 508(a)(3)(D).
---------------------------------------------------------------------------
The remainder of EPCA is replete with similar examples of Congress
specifically--and expressly--speaking to the ability or need for the
agencies to implement its provisions through a variety of regulatory
actions. In contrast, as noted by both the Proposal and certain
commenters, Section 32919 (originally Section 509 of EPCA) is notably
silent as to any role of the agency in administering--much less
defining--a preemption scheme. This is despite other preemption
provisions in EPCA continuing Congress' general trend throughout the
statute of more specifically enumerating the role of the agency when
contemplating further agency implementation. For instance, as the
Proposal noted, the structures of other parts of EPCA expressly charge
an agency to administer preemption through regulations, and no such
charge exists for NHTSA. For example, a precursor to the Department of
Energy, the Federal Energy Administration, was expressly directed
elsewhere in EPCA to ``prescribe . . . rule[s]'' that preempt state and
local appliance energy conservation standards.\132\
---------------------------------------------------------------------------
\132\ See 42 U.S.C. 6297.
---------------------------------------------------------------------------
This is also consistent with the manner in which Congress has
provided preemption authority to the Department of Transportation in
other contexts. The Proposal identified several of such examples,
recognizing that, other DOT statutes expressly provide a regulatory, or
even adjudicatory, role for the Department in the preemption analysis.
For instance, in the transportation of hazardous materials context, 49
U.S.C. 5125 directs the Secretary to adjudicate applications on whether
a particular state standard is ``substantially the same'' as Federal
law and, as such, exempted from statutory preemption.\133\ Similarly,
49 U.S.C. 31141 establishes a very detailed role for DOT in reviewing
and preempting state law pertaining to commercial motor vehicle
safety.\134\ Many of the seminal cases in the Supreme Court's
preemption jurisprudence also concerned statutory schemes that
expressly delegated preemption authorities to the agencies in
question.\135\
---------------------------------------------------------------------------
\133\ See 49 U.S.C. 5125(d) (The Secretary has delegated this
responsibility to another DOT operating administration, the Pipeline
and Hazardous Materials Safety Administration (PHMSA)).
\134\ See 49 U.S.C. 31141 (expressly stating that ``[a] State
may not enforce a State law or regulation on commercial motor
vehicle safety that the Secretary of Transportation decides under
this section may not be enforced'' before enumerating multiple
subsections that define an adjudicatory role for the DOT, complete
with preemption standards and procedures). The Secretary has
delegated this responsibility to another DOT operating
administration, the Federal Motor Carrier Safety Administration
(FMCSA).
\135\ For example, in a set of cases evaluating the preemption
of certain state tort law relating to medical device product
liability, the Supreme Court analyzed U.S. Food and Drug
Administration (FDA) regulations that specifically defined when
preemption occurred under the applicable statute, the Medical Device
Amendments (MDA). See generally Medtronic, Inc. v. Lohr, 518 U.S.
470 (1996) (plurality opinion); Riegel v. Medtronic, Inc., 552 U.S.
312 (2008). See also 21 U.S.C. 360k; 21 CFR 808.1.
---------------------------------------------------------------------------
A few comments disputed the salience of these other preemption
examples, with a joint comment submitted by CEI especially delving into
the particulars of these preemption schemes. After analyzing each of
these preemption statutes in turn, CEI concluded that those statutory
preemption provisions in which Congress explicitly prescribed an
agency's role all ``have one thing in common:'' A limited preemption
scope that necessitates an agency's subsequent involvement, oftentimes
through adjudication, to ``fine tune the scope of preemption.'' \136\
CEI's joint comment stressed that, in contrast, Section 32919's silence
as to any role for NHTSA was simply ``a reflection of the preemption's
absoluteness.'' \137\ In doing so though, CEI's comment demonstrates a
critical difference in Section 32919 and these other statutory
preemption provisions. In those other statutory preemption provisions
analyzed by CEI's comment, Congress indisputably enumerated a
preemption framework in which the agency in question played an active
role in legally determining how statutory preemption applied to
particular states and programs. In contrast, Section 32919 enumerates
no such role for DOT or NHTSA, nor does it even leave room for
subsequent implementation by the Agency. Instead, the self-executing
terms of Section 32919 demonstrate that Congress intended the provision
to operate without any ensuing requirements or legal determinations
imposed by the Agency. Through its codification of new prescriptive
requirements on EPCA preemption, the SAFE I Rule involved NHTSA taking
the type of subsequent agency action not intended by Congress. Reading
Section 32919 to permit NHTSA to promulgate binding regulations on EPCA
requires an acceptance that NHTSA may authoritatively determine the
reach of the self-executing (and legally self-sufficient) obligations
stemming from the statute. But as CEI's comment highlights, Section
32919 seems to clearly not want the Agency to ``fine tune'' the legal
mechanics of EPCA's preemptive scope.\138\ But that is exactly what the
power to issue legislative rules under Section 32919 would allow.
---------------------------------------------------------------------------
\136\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
\137\ Id.
\138\ Id.
---------------------------------------------------------------------------
CEI's comment also argues that the examples from those other
statutory provisions cannot inform this rulemaking because in those
enactments Congress contemplated an adjudicatory role for the agencies
rather than the rulemaking action undertaken in the SAFE I Rule. NHTSA
does not believe this distinction negates the comparative value of
those provisions. Of course, the SAFE I Rule was a generally applicable
rule, not an adjudication or even simply an administrative enforcement
action against any particular party. Even so, the preemption statutes
described both in the NPRM and herein remain relevant comparisons even
when they provide adjudicatory rather than rulemaking roles for an
agency. In either case, the Agency is still exercising a core
administrative decision-making function to implement the preemption
statute in a legally binding way--adjudication just does that on a
case-by-case basis whereas a rulemaking does
[[Page 74252]]
that all at once.\139\ In both cases, the question remains whether
Congress intended the agency to further implement the statutory
preemption scheme through legally enforceable agency action. The other
statutory examples demonstrate that when Congress so intends agency
implementation, the statutes in question facially articulate that role
clearly and discernably in the text.
---------------------------------------------------------------------------
\139\ See, e.g. SEC v. Chenery Corp., 332 U.S. 194 (1947)
(discussing overlap between the adjudicatory and rulemaking
functions of an agency).
---------------------------------------------------------------------------
To the extent the differences in rulemaking and adjudication are
pertinent to today's rulemaking, such differences only further support
NHTSA's conclusions. For instance, CEI's comment stresses that these
other statutory examples only articulate a role for agencies because
``subsequent regulatory adjudication'' is needed to implement their
preemption frameworks (in contrast to Section 32919, which CEI
characterizes as ``clear'').\140\ However, even assuming CEI's premise
is true, this only further supports the Proposal's conclusion by
suggesting that adjudication--not rulemaking--was Congress' preferred
method to statutorily engraft an agency into the legal process of
formulating the scope of an express preemption provision. If so, the
SAFE I Rule's attempt to use rulemaking to legally affect EPCA's
preemptive scope appears even further from the scheme intended by
Congress. Ultimately, no matter how these provisions are read, it is
undeniable that Section 32919 stands apart from other statutory
preemption schemes in which the agency is charged with a more active
role in setting the scope of preemption in a legally binding way.
---------------------------------------------------------------------------
\140\ See Competitive Enterprise Institute et al., Docket No.
NHTSA-2021-0030-0411 (June 11, 2021).
---------------------------------------------------------------------------
Commenters' other efforts to explain away Section 32919's silence
are similarly unavailing. In particular, CEI's joint comment proffers
two ``alternative explanations'' for the statute's silence. In the
first, the comment argues that in enacting EPCA, Congress was simply
na[iuml]ve, unable ``in 1975 to anticipate the brazenness of 21st
century `climate ambition,' '' so presumably unaware of what CEI deems
an eventual need for NHTSA to legally intercede on EPCA
preemption.\141\ However, this fails to account for the fact that the
preemption provision of EPCA has been the subject of litigation for
decades and, thus, questions about its scope are not new, even if the
specific aspects of this issue change over time. Despite this, Congress
has not materially changed the statutory language governing EPCA
preemption, with the current language in Section 32919 remaining
substantially the same as the language originally enacted in Section
509 of EPCA. Further, even if the recent actions by California and
other states are somehow different than earlier preemption questions,
it would not change what authority EPCA, as it is currently enacted,
provides NHTSA.
---------------------------------------------------------------------------
\141\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
---------------------------------------------------------------------------
Moreover, CEI's comment suggests that Congress perhaps
intentionally eschewed a more precise description of delegated
authority, preferring instead to tacitly provide authority through
silence to avoid ``foster[ing] confusion and uncertainty.'' This
position is both counterintuitive and disproved by EPCA's express text.
First, it strains credulity to read EPCA's silence as Congress'
concerted effort to still provide authority to the agency, but just in
a more clear and unambiguous way than if it had done so expressly. As
the rest of EPCA demonstrates, Congress understood how to carve out a
legal role for an agency in a multitude of matters, including
preemption, even when that role involved a complicated adjudicatory
scheme. Moreover, since an agency's rulemaking actions must always fall
within the scope of statutory authority, if Congress had any concerns
about how that authority could be misapplied, it could have easily
enacted language that set the parameters for any implementing agency
regulations (as it did in Section 327 of EPCA).\142\ As such, there is
no reason to believe that Congress would have suddenly become wary of
precisely describing such authority when it reached Section 32919. And
a construction that requires such a leap does not offer the most
reasonable reading of the statute.
---------------------------------------------------------------------------
\142\ See The Energy Policy and Conservation Act of 1975, Public
Law 94-163, 89 Stat. 871, section 327(b), recodified as amended at
42 U.S.C. 6297(d).
---------------------------------------------------------------------------
Finally, at least one other commenter sought to diminish this
contrast in statutory approaches by focusing not on the actual
statutory language in question, but instead, on the legal doctrines
underpinning administrative law. Specifically, a joint comment by the
Urban Air Initiative argued at length that the Proposal's doubts about
the delegation of statutory authority for the SAFE I Rule contradicted
the Supreme Court's application of administrative law principles in
City of Arlington v. FCC.\143\ The comment presented City of Arlington
for the proposition that since NHTSA administers the broader CAFE
program and Section 32919 does not expressly prohibit the Agency from
promulgating implementing regulations on EPCA preemption, the silence
of Section 32919 should not serve as a barrier to NHTSA's SAFE I
rulemaking authority.\144\ As such, the comment concluded that the
Proposal's approach would too finely parse an agency's authority on a
provision-by-provision basis and undertake an unmanageably granular
review of authority for federal administrative agencies.
---------------------------------------------------------------------------
\143\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021) (discussing 569 U.S. 290 (2013)).
\144\ Id.
---------------------------------------------------------------------------
NHTSA views this concern as unfounded and depending upon a
protracted reading of City of Arlington. In City of Arlington, the
Supreme Court reviewed a declaratory ruling by the Federal
Communications Commission, which contained the agency's interpretation
and subsequent implementation of its own regulatory jurisdiction under
the Telecommunications Act of 1996.\145\ The question presented in the
case was ``[w]hether . . . a court should apply Chevron to . . . an
agency's determination of its own jurisdiction.'' \146\ The Court
ultimately held that Chevron deference should apply because, at their
core, all agency constructions of a statute present jurisdictional
issues.\147\ This is because, the majority reasoned, agencies are
always bound by statute, which renders any departure from a statute's
intended scope or meaning also a transcendence of the agency's
jurisdiction.\148\
---------------------------------------------------------------------------
\145\ See generally City of Arlington, Tex. v. F.C.C., 569 U.S.
290 (2013).
\146\ Id. at 295 (ellipses in original).
\147\ Id.
\148\ Id. at 299-300.
---------------------------------------------------------------------------
The Urban Air Initiative's joint comment contends that, in light of
City of Arlington, the Proposal's focus on whether Section 32919
confers rulemaking authority is an ``empty distraction'' and
demonstrative of an overly burdensome undertaking that too narrowly
searches for questions of authority or agency jurisdiction.\149\ Read
properly though, City of Arlington actually underscored the
appropriateness of the Agency's concern about its own authority. The
Urban Air Initiative's comment advances City of Arlington to argue that
NHTSA need not worry about its statutory authority because no special
class of jurisdictional questions exists. But the City of Arlington
majority made clear that this is only because all questions about an
agency's actions are jurisdictional. At base, City of Arlington's
holding illustrates the exact point repeated
[[Page 74253]]
throughout this rulemaking: because agencies have no plenary
jurisdiction, agencies' ``power to act and how they are to act is
authoritatively prescribed by Congress, so that when they act
improperly, no less than when they act beyond their jurisdiction, what
they do is ultra vires.'' \150\ As a result, any time the agency
implements a statute the question ``is always whether the agency has
gone beyond what Congress has permitted it to do, there is no
principled basis for carving out some arbitrary subset of such claims
as `jurisdictional.' '' \151\ This is even apparent when the Court's
phrase of ``empty distraction'' is read in its full context: ``The
[jurisdictional] label is an empty distraction because every new
application of a broad statutory term can be reframed as a questionable
extension of the agency's jurisdiction.'' \152\ Consequently, far from
ignoring this precedent as the comment claims, NHTSA views this
rulemaking as conducting the precise analysis contemplated by the
Court--ensuring that its regulatory activities conform to their
governing statutory authorities.\153\
---------------------------------------------------------------------------
\149\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021).
\150\ City of Arlington, Tex., 569 U.S. at 297-98.
\151\ Id.
\152\ Id. at 300 (emphasis added).
\153\ Similarly, the joint comment submitted by the Urban Air
Initiative argues that because these issues are irrelevant, NHTSA is
simply manufacturing issues to conceal the ``political pretext'' for
a repeal of the SAFE I Rule. See Urban Air Initiative et al., Docket
No. NHTSA-2021-0030-0423 (June 11, 2021). But this contradicts the
authorities cited here, which encourage an agency to closely assess
its statutory authority, as NHTSA is doing in this rulemaking. These
commenters may disagree with NHTSA's ultimate conclusions in this
rulemaking, but dismissing the concerns surrounding the SAFE I Rule
as merely ``pretextual'' ignores the litany of legitimate issues
articulated in this rulemaking, as well as the substantial number of
thoughtful comments expressing additional concerns about the SAFE I
Rule.
---------------------------------------------------------------------------
Moreover, even the broader holding of City of Arlington supports
NHTSA's conclusions in this rulemaking. The Court's ultimate holding in
the case is that, because all questions are essentially jurisdictional,
an agency should be entitled to Chevron deference when construing the
scope of its statutory authority, even when those questions concern the
subjects on which an agency may regulate.\154\ The Chevron doctrine is,
of course, a multi-dimensional analysis, and thus deference to a
reasonable interpretation only arises in the first place if the
statutory language is ambiguous.\155\ Here, NHTSA views the lack of
rulemaking authority as a clear and unambiguous reading of Section
32919, for all of the reasons described herein. However, even if
Section 32919 were considered to be ambiguous on the existence of
authority, as several commenters contended, the City of Arlington
framework stressed by those commenters still supports extending
deference to NHTSA for its determination in this repeal that the Agency
lacked authority to promulgate the SAFE I Rule. In fact, if such an
ambiguity were deemed to exist, that is the precise type of
determination for which City of Arlington made clear deference should
apply: ``[t]he question here is whether a court must defer under
Chevron to an agency's interpretation of a statutory ambiguity that
concerns the scope of the agency's statutory authority (that is, its
jurisdiction).'' \156\
---------------------------------------------------------------------------
\154\ City of Arlington, Tex., 569 U.S. at 297-98.
\155\ See generally Chevron, U.S.A., Inc., 467 U.S. 837.
\156\ City of Arlington, Tex., 569 U.S. at 296-97.
---------------------------------------------------------------------------
Similarly, Chevron also does not support a claim that the SAFE I
Rule was tacitly authorized in order ``to fill any gap left'' by
Congress in Section 32919's statutory scheme.\157\ Chevron and its
progeny recognize that, in some instances, statutory ambiguities or
``gaps'' in statutory frameworks indicate that Congress contemplated an
agency acting in order to resolve such ambiguities.\158\ In these
situations, an incomplete statutory scheme raises the possibility that
Congress ``implicitly or explicitly'' intended the agency to step in
and undertake rulemaking to provide the missing pieces and enable the
statute's administration.\159\ However, as described throughout this
reconsideration, EPCA and Section 32919 clearly demonstrate that
Congress did not intend for NHTSA to further implement or administer
Section 32919.
---------------------------------------------------------------------------
\157\ See NHTSA, EPA, Withdrawal of Waiver; Final Rule, The
Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One
National Program, Final Rule, 84 FR 51310, 51351 (Sept. 27, 2019)
(quoting Chevron, 467 U.S. at 843).
\158\ See, e.g., Chevron, 467 U.S. at 843.
\159\ Id.
---------------------------------------------------------------------------
This is evident because, as the Proposal recognized, both the
Agency and courts have repeatedly understood Section 32919 as self-
executing and capable of direct application to state regulatory
activity.\160\ Specifically, such a direct application involves the
consideration of whether the state regulation in question ``relate[s]
to'' fuel economy standards established elsewhere in Chapter 329.\161\
The statute does not require any supplemental agency regulations to
implement this standard, nor does the text and structure of the statute
appear to provide NHTSA any special legislative role in dictating the
scope of Section 32919's preemption. This view is consistent with
NHTSA's longstanding reading of Section 32919. For instance, even the
Preamble to the SAFE I Final Rule acknowledged that the EPCA preemption
provision of Section 32919 was ``self-executing,'' asserting that
``state or local requirements related to fuel economy standards are
void ab initio''--by operation of statute not regulation.\162\
Likewise, in the NEPA section of the SAFE I Rule, NHTSA expressly
disclaimed any discretion to alter the preemption paradigm established
by Section 32919 due to the self-sufficiency of the statute, stressing
that ``[a]ny preemptive effect resulting from this final action is not
the result of the exercise of Agency discretion, but rather reflects
the operation and application of the Federal statute.'' \163\ As such,
the Agency again characterized any ``preempted standards [as] void ab
initio'' due to the non-discretionary and independent application of
Section 32919.\164\
---------------------------------------------------------------------------
\160\ See, e.g., Green Mountain Chrysler Plymouth Dodge Jeep v.
Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007) (undertaking a detailed
analysis of Section 32919 to determine whether state law was
preempted under the express language of the statute).
\161\ See Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F.
Supp. 2d 1151, 1175 (E.D. Cal. 2007), as corrected (Mar. 26, 2008)
(conducting such an analysis before concluding that preemption did
not exist ``[g]iven the narrow scope the court must accord EPCA's
`related to' language'').
\162\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51325 (Sept. 27, 2019).
\163\ Id. at 51353-54.
\164\ Id.
---------------------------------------------------------------------------
The self-executing nature of Section 32919 formed one of the most
widely agreed-upon propositions in the Proposal. Commenters on all
sides of the issue expressly confirmed their own understanding of
Section 32919 as self-executing and capable of direct enforcement and
application against preempted programs. For instance, commenters in
support of the Proposal expressly agreed that ``[i]n the absence of the
Preemption Rule, any state law or regulation `relating to fuel economy
standards' can be challenged in a proper case, allowing for full
evaluation of both the state law and the express statutory preemption
in Section 32919,'' \165\ that ``implementing EPCA Section 32919'' does
not require any NHTSA regulations,\166\ and that ``[c]ourts have
likewise treated the EPCA preemption language as self-executing as they
have applied this language to particular circumstances to determine
whether a
[[Page 74254]]
state or local government action is or is not preempted.'' \167\
Similarly, commenters that otherwise more neutrally commented on other
aspects of the Proposal still explicitly endorsed Section 32919's self-
executing status.\168\ And commenters opposing the Proposal nonetheless
still stressed that they ``agree that the statute is self-executing and
that any state regulation that is `related to fuel economy' is
preempted and void ab initio.'' \169\ For this reason, even opposition
commenters stated that ``[c]onsequently, the SAFE I Rule's regulatory
language is not essential to effectuate'' EPCA preemption.\170\
---------------------------------------------------------------------------
\165\ South Coast Air Quality Management District, Docket No.
NHTSA-2021-0030-0446 (June 11, 2021).
\166\ Tesla, Inc. Docket No. NHTSA-2021-0030-0398 (June 11,
2021).
\167\ National Coalition for Advanced Transportation, Docket No.
NHTSA-2021-0030-0310 (June 11, 2021).
\168\ Alliance for Automotive Innovation, Docket No. NHTSA-2021-
0030-0400 (June 11, 2021) (Expressing that any offending local laws
are ``automatically preempted under the terms of the statute.
Federal courts can apply EPCA's preemption provision to any such law
or regulation.'').
\169\ American Fuel & Petrochemical Manufacturers, Docket No.
NHTSA-2021-0030-0425 (June 11, 2021).
\170\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021). See also Urban Air Initiative et
al., Docket No. NHTSA-2021-0030-0423 (June 11, 2021).
---------------------------------------------------------------------------
Although commenters widely agreed on Section 32919's self-executing
status, a small number of comments opposing the Proposal tried to argue
that this status did not preclude the SAFE I Rule. For instance, a
joint comment submitted by CEI argued that Section 32919 still ``has no
practical effect unless someone interprets and implements it.'' \171\
This misses the central point of the issue though. Since Section 32919
is self-executing, a regulation is not needed to implement the
preemption provision, and, moreover, nothing in Section 32919 provides
any authority to issue a binding rule on the scope of preemption. In
that respect, Section 32919 fundamentally differs from other EPCA
statutory provisions, such as Section 32902, which sets a general CAFE
framework that must be implemented by NHTSA periodically
``prescrib[ing] by regulation'' the actual CAFE standards that govern
particular model years.\172\ EPCA is replete with other examples of
those types of statutes requiring regulatory implementation.\173\ In
contrast, Section 32919 contains all of the elements necessary for
implementation within the four corners of its statutory language.\174\
This is not just theoretical, but evident from the numerous times
Section 32919 has directly supported a private right of action seeking
to enforce its preemption provisions in Federal court.\175\
---------------------------------------------------------------------------
\171\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
\172\ See 49 U.S.C. 32902(a).
\173\ See supra nn.125-131.
\174\ A joint comment submitted by the Urban Air Initiative
cites this point as evidence that the SAFE I Rule was a permissible
interpretation because Section 32919 does not leave room for a
regulation to create newly enforceable requirements. See supra
nn.84-85. This aspect of the comment is fully addressed in an
earlier portion of the final rule that explains how this argument
ignores the plain language of the regulations codified in the SAFE I
Rule.
\175\ See Cent. Valley Chrysler-Jeep, Inc., 529 F. Supp. 2d at
1175; Green Mountain Chrysler Plymouth Dodge Jeep, 508 F. Supp. at
295; Ophir v. City of Boston, 647 F. Supp. 2d 86, 91-92 (D. Mass.
2009).
---------------------------------------------------------------------------
To the extent that CEI means that Section 32919 has no practical
effect unless it is enforced, as explained further in the next section,
by promulgating regulations of general applicability, the SAFE I Rule
was an act of rulemaking not enforcement. As such, whether Section
32919 needs to be enforced in a particular case has no bearing on
whether NHTSA enjoys rulemaking authority to codify a regulation of
general applicability.
Ultimately, the self-executing nature of Section 32919 demonstrates
that Congress did not establish a rulemaking role for NHTSA in EPCA
preemption. Instead, Congress enacted a statutory provision that
operates fully on its own, without any discernable responsibility for
the Agency in further implementing the scope of Section 32919 through
regulations.
b. The Requisite Rulemaking Authority Cannot Be Generally Inferred From
EPCA
Both the SAFE I Rule and commenters to the Proposal defending that
Rule also argued that the spirit of EPCA hints at the need for such
rulemaking authority. NHTSA continues to find this argument unavailing
and, as such, is finalizing the Proposal's view that generalized
inferences drawn from EPCA cannot sustain the provisions codified in
the SAFE I Rule. Moreover, NHTSA views many of the themes and
inferences that commenters invoked for this proposition inapposite, as
they mischaracterize the nature of the SAFE I Rule. As such, nothing
from these purported inferences changes NHTSA's conclusion that the
SAFE I Rule was an ultra vires rule that must be repealed.
The SAFE I Rule sought to justify the rulemaking on predominantly
policy grounds, characterizing the express preemption measure as
necessary to fulfill other CAFE responsibilities delegated to the
Agency. In particular, the SAFE I Rule argued that the regulation was
needed to resolve a perceived irreconcilable conflict between state GHG
emissions regulations and ZEV mandates and EPCA's delegation of
authority to NHTSA to set national fuel economy standards.\176\ The
SAFE I Rule thus rationalized the regulations by emphasizing that
``Congress's intent to provide for uniform national fuel economy
standards is frustrated when State and local actors regulate in this
area.'' \177\
---------------------------------------------------------------------------
\176\ NHTSA, EPA, The Safer Affordable Fuel-Efficient (SAFE)
Vehicles Rule Part One: One National Program, Final Rule, 84 FR
51310, 51319 (Sept. 27, 2019).
\177\ Id. at 51313.
---------------------------------------------------------------------------
In particular, the SAFE I Rule suggested that the rulemaking was
essential to guard against states or local jurisdictions undermining
the CAFE program. For instance, the Agency repeatedly expressed that
the regulations targeted ``State requirements that impermissibly
interfere with [the Agency's] statutory role to set nationally
applicable standards,'' \178\ that implementing the provisions was
necessary to foreclose state and local requirements that ``conflict
with NHTSA's ability to set nationally applicable standards,'' \179\
and that the action was necessary because ``Congress's intent to
provide for uniform national fuel economy standards is frustrated when
State and local actors regulate in this area.'' \180\
---------------------------------------------------------------------------
\178\ Id. at 51317 (emphasis added).
\179\ Id. at 51319 (emphasis added).
\180\ Id. at 51313 (emphasis added).
---------------------------------------------------------------------------
A large number of the comments supporting the SAFE I Rule expressed
this same idea. This theme is illustrated, for example, by a joint
comment from CEI, which stresses that without the SAFE I Rule,
California (through CARB) would be positioned to ``balkanize auto
markets unless it gets its way'' in dictating motor vehicle emissions
and fuel economy standards.\181\ Like the SAFE I Rule, such commenters
focused on the need for the provision ``to avoid potential conflicts
with EPCA's national fuel economy standards,'' \182\ and provided
extensive analysis purporting to show how particular programs are
poised to ``undermine CAFE's flexible fleet-average standards'' unless
the SAFE I Rule's prohibitions remain in place.\183\ Some commenters
opposing a repeal even carried this theme to the point of describing
the SAFE I Rule as
[[Page 74255]]
akin to an enforcement action, necessary for NHTSA to police EPCA's
congressional purpose in the face of ``lawless'' states and local
jurisdictions.<SUP>184 185</SUP>
---------------------------------------------------------------------------
\181\ Competitive Enterprise Institute et al., Docket No. NHTSA-
2021-0030-0411 (June 11, 2021).
\182\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
\183\ Urban Air Initiative et al., Docket No. NHTSA-2021-0030-
0423 (June 11, 2021) (labeling an entire section of the comment
``State electric automobile quotas restrict manufacturer compliance
choices and undermine CAFE's flexible fleet-average standards.'').
\184\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021). See also American Fuel & Petrochemical
Manufacturers, Docket No. NHTSA-2021-0030-0425 (June 11, 2021);
Competitive Enterprise Institute et al., Docket No. NHTSA-2021-0030-
0411 (June 11, 2021).
\185\ The SAFE I Rule was not an enforcement action, and NHTSA's
portion of the Rule was not (unlike EPA's portion) even an
adjudication. Instead, as described throughout this final rule, the
SAFE I Rule codified rules of general applicability, which
instituted preemption requirements for all states so long as the
rule remained in effect. As such, even if those commenters'
arguments explain the background for why NHTSA tried to undertake
the SAFE I Rule, they cannot justify how NHTSA acted through a
legislative rulemaking of general applicability. For that, it is
necessary to instead focus on the issues of rulemaking authority
that form so much of this final rule.
---------------------------------------------------------------------------
The idea that the SAFE I Rule is necessary to prevent states and
local jurisdictions from frustrating EPCA or NHTSA's national CAFE
program is inconsistent with a properly applied preemption framework.
In the absence of the SAFE I Rule, two fundamental preemption
mechanisms still exist to guard against state or local programs that
sufficiently conflict with CAFE to render EPCA's purposes a
nullity.\186\ First, as described throughout this final rule, a repeal
of the SAFE I Rule does not affect the statutory express preemption
provision in Section 32919. This self-executing statutory provision is
fully capable of enforcement against offending state and local programs
in the absence of any regulations purporting to further implement its
scope. In fact, before the SAFE I Rule, this provision had provided
this function for years without implementing regulations. Here, Section
32919's plain language illustrates how Congress' preemptive scheme is
immediately executable upon NHTSA promulgating the substantive law
(national fuel economy standards) rather than any express preemption
provisions. At most, the statute merely refers to the substantive tasks
of the agency to establish ``fuel economy standard[s]'' and
``requirements'' as set forth elsewhere in Chapter 329.\187\ Such
references only connote the core duties borne by the agency to
administer the substance of the fuel economy program, such as by
setting ``maximum feasible average fuel economy'' standards under
Section 32902 or establishing fuel economy labeling requirements under
Section 32908. These responsibilities are within the Agency's
traditional substantive regulatory functions, which draw from NHTSA's
technical automobile expertise rather than any special agency authority
over federalism.
---------------------------------------------------------------------------
\186\ Through this, NHTSA stresses that it takes no position in
this rulemaking on whether EPCA preemption either expressly or
impliedly preempts the particular state and local programs
identified by such commenters. The point here is that these
mechanisms persist to weigh such commenters' concerns, not that
their substantive concerns are substantiated.
\187\ See 49 U.S.C. 32919(a)-(b).
---------------------------------------------------------------------------
As such, it is not necessary for NHTSA to codify new express
preemption provisions in order to ``carry out'' EPCA. All NHTSA needs
to do is fulfill the substantive task enumerated in Section 32919:
Ensuring ``an average fuel economy standard prescribed under this
chapter is in effect.'' \188\ Once such a standard is in place, Section
32919's self-executing standard is fully capable of safeguarding
Congress' purpose in EPCA. Moreover, as explained in Section II.B.iii.
of this final rule, the familiar ``related to'' standard in Section
32919 may even be clearer to apply and understand without the
convoluted layer of the SAFE I Rule. Accordingly, even assuming the
concerns raised by such commenters are accurate, they are fully
redressable by the statutory express preemption language in Section
32919, which remains untouched by this rulemaking.
---------------------------------------------------------------------------
\188\ See 49 U.S.C. 32919(a).
---------------------------------------------------------------------------
More fundamentally though, even after today's repeal of the SAFE I
Rule, judicial concepts of implied preemption will remain available to
perform their traditional function of guarding against state law that
sufficiently interferes with the supremacy of federal law. In fact, the
concepts used by the SAFE I Rule (and commenters defending it) to
justify rulemaking authority were actually more appropriately applied
to an implied preemption analysis instead.\189\ The terminology
repeatedly employed throughout the SAFE I Rule--``frustrates,'' \190\
``conflicts,'' \191\ and ``interferes'' \192\--mirrors the standards
often arising in implied preemption. Implied preemption is a judicial
doctrine principally applied by courts when adjudicating challenges to
particular state programs.\193\ The judicial standards for implied
preemption remain available to presiding courts irrespective of the
presence of the SAFE I Rule. Therefore, if state and local
jurisdictions endanger EPCA to the degree claimed by those commenters,
there is no reason to believe that Article III courts could not
evaluate those claims through the lens of implied preemption, as has
been the case throughout the long history of both EPCA and all other
federal law.\194\
---------------------------------------------------------------------------
\189\ For instance, the Supreme Court has expressly clarified
that when its precedent preempts state laws ``when they conflict
with or interfere with federal authority over the same activity,''
such an opinion ``is best read as a conflict pre-emption case.'' See
Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 389 (2015) (discussing
Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S.
354, 373 (1988)).
\190\ City of New York, 486 U.S. at 64 (``The statutorily
authorized regulations of an agency will pre-empt any state or local
law that conflicts with such regulations or frustrates the purposes
thereof'') (emphasis added).
\191\ See, e.g., Wyeth v. Levine, 555 U.S. 555, 576 (2009)
(``This Court has recognized that an agency regulation with the
force of law can pre-empt conflicting state requirements'')
(emphasis added).
\192\ See, e.g., Patriotic Veterans, Inc. v. Indiana, 736 F.3d
1041, 1051 (7th Cir. 2013) (describing how under the doctrine of
conflict preemption, state law may be preempted ``if it interferes''
with federal law) (emphasis added).
\193\ See, e.g., Freightliner Corp. v. Myrick, 514 U.S. 280, 287
(1995) (explaining that implied conflict preemption may exist in
particular situations ``where it is impossible for a private party
to comply with both state and federal requirements or where state
law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.'') (internal quotations
omitted). See also, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S.
658, 663 (1993) (``Where a state statute conflicts with, or
frustrates, federal law, the former must give way.'').
\194\ Commenters opposing a repeal even appeared to recognize as
much, as several argued that state and local programs prohibited by
the SAFE I Rule were also impliedly preempted. See, e.g., American
Fuel & Petrochemical Manufacturers, Docket No. NHTSA-2021-0030-0425
(June 11, 2021) (arguing that such programs ``are impliedly
preempted because they `stand[ ] as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress''' in EPCA) (internal citations omitted).
---------------------------------------------------------------------------
Moreover, as a judicial doctrine intended for application in a
particular case, principles of implied preemption do not support NHTSA
claiming authority to conduct a rulemaking of general
applicability.\195\ Instead, this rulemaking act of promulgating new
prescriptive preemption requirements, which are expressly codified in
law, involves a separate act of rulemaking authority to impose express
preemption through regulations. NHTSA's rulemaking authority to do so
is governed by the principles already discussed above in Section
II.B.i--not the judicial concepts that govern whether a Federal court
should deem a state program impliedly preempted by the supremacy of
existing federal law. Therefore, the concepts of implied preemption
invoked by NHTSA to justify the SAFE I Rule were misapplied. They exist
to enable a court to determine whether a state program conflicts with
existing federal law, not
[[Page 74256]]
to empower NHTSA to make more federal law, as the Agency claimed in the
SAFE I Rule. Accordingly, since NHTSA has already applied the proper
rulemaking authority framework in Section II.B.i. above and determined
that such authority was lacking for the SAFE I Rule, judicial concepts
of implied preemption cannot cure this deficit of authority. Moreover,
they do not need to, because an implied preemption review remains
available irrespective of the fate of the SAFE I Rule.
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\195\ Judicial applications of implied and express preemption
illustrate how they are separate concepts, which are applied
regimentally by courts rather than as a monolithic preemption
analysis. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 869
(2000).
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ii. NHTSA Continues To Consider a Repeal of the SAFE I Rule Appropriate
Even if the Agency Had Discretion To Conduct the Original Rulemaking
In addition, even if the Agency either had sufficient authority to
issue the SAFE I Rule as a legislative rule or, alternatively, if the
prior Rule was simply an interpretation, the Agency nevertheless
continues to consider a repeal justified by other considerations as
well. Specifically, the SAFE I Rule purported to preempt an entire
segment of emissions regulations from state and local jurisdictions
without fully considering a number of variables pertinent to the
preemption determination. By ignoring these factors, the Rule was still
legally flawed because it ignored legally relevant considerations that
should have informed both the nature and scope of the Agency's
preemption determination. Likewise, in overlooking such important
considerations, the SAFE I Rule also improvidently imposed preemption
in absolute terms when a more narrowly tailored approach was available
instead.
a. The Categorical Scope of Preemption in the SAFE I Rule
Inappropriately Ignored Important Interests of States and Local
Jurisdictions
In the Proposal, the Agency expressed a concern that the
categorical preemption views announced in the SAFE I Rule were
insufficiently tailored to account for state federalism interests
because they labeled an entire segment of state and local regulation as
preempted, irrespective of the precise contours of any particular
programs, regulations, or technological developments that may arise.
This alarm especially arose from the SAFE I Rule's declaration of
preemption through terms that were incontrovertible or absolute in a
way that would not account for the nuanced and careful consideration of
program-specific facts called for in preemption analyses. The comments
to this Proposal substantiated these concerns. In particular, the
majority of states and local jurisdictions who commented on the
Proposal provided tangible examples of the types of nuances and
federalism hardships that the SAFE I Rule failed to consider.
NHTSA continues to consider the federalism concerns in this arena
as constituting substantial interests of states and local
jurisdictions, who oftentimes seek to address pivotal matters of public
health and welfare through the programs impinged by the SAFE I Rule. In
this respect, the Agency remains mindful that an ``administrative
interpretation [which] alters the federal-state framework by permitting
federal encroachment upon a traditional state power'' merits
particularly careful consideration to fully account for the significant
federalism interests of states.\196\ Likewise, Executive Order 13132
underscores the importance of considering federalism interests,
stressing that ``[t]he national government should be deferential to the
States when taking action that affects the policymaking discretion of
the States and should act only with the greatest caution where State or
local governments have identified uncertainties regarding the
constitutional or statutory authority of the national government.''
\197\ Nevertheless, by imposing a categorical and rigid approach to
preemption, the SAFE I Rule prematurely discarded such federalism
considerations despite the potential for more narrowly tailored
approaches instead. As such, the SAFE I Rule both impermissibly ignored
legally relevant variables of state programs and imprudently adopted a
broader approach than necessary in instituting immutable preemption
requirements.
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\196\ See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps
of Engineers, 531 U.S. 159, 173 (2001).
\197\ Executive Order 13132, Federalism, Sec. 1(a) (Aug. 4,
1999).
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For instance, in the Proposal, the Agency expressed a concern that
in a number of cases, the policies preempted by the SAFE I Rule also
served as components of the states' compliance with air pollution
mitigation requirements delegated to states under the Federal Clean Air
Act.\198\ This issue formed one of the more common refrains in comments
from states and local jurisdictions subject to the SAFE I Rule's
preemption determination, who stressed that the prior rulemaking failed
to consider--or even acknowledge--their reliance interests in motor
vehicle emissions regulations as a critical component in achieving
National Ambient Air Quality Standards (NAAQS). NAAQS levels are set by
the EPA for six separate ubiquitous air pollutants, and states are
required to achieve and maintain them under federal law. A survey of
the comments indicates that feedback on the ways in which the SAFE I
Rule could undermine compliance with the NAAQS was overwhelming. For
example, a comment by the National Association of Clean Air Agencies, a
group of 115 local air agencies spanning 41 states, the District of
Columbia, and four territories, stressed that programs prohibited by
the SAFE I Rule ``enable long-term planning and yield critical emission
reductions that will contribute significantly to states' abilities to
meet their statutory obligations to attain and maintain the health-
based [NAAQS] for criteria pollutants.'' \199\ Separate comments
submitted by the Ozone Transport Commission Mobile Sources Committee, a
body comprised of 12 states and the District of Columbia, as well as
the Nevada Division of Environmental Protection, and the District of
Columbia Department of Energy and Environment, reiterated this point as
well.\200\ Maine's Department of Environmental Protection likewise
commented to reiterate that these particular reliance interests are not
new but rather have existed since the inception of such state programs,
noting that ``the [California low emission vehicle] program was
initially created to help attain and maintain the health-based [NAAQS]
for criteria pollutants.'' \201\
---------------------------------------------------------------------------
\198\ CAFE Preemption NPRM, 86 FR at 25989.
\199\ National Association of Clean Air Agencies (NACAA), Docket
No. NHTSA-2021-0030-0140 (June 10, 2021).
\200\ Ozone Transport Commission, Docket No. NHTSA-2021-0030-
0139 (June 10, 2021); Nevada Division of Environmental Protection,
Docket No. NHTSA-2021-0030-0362 (June 11, 2021); District of
Columbia Department of Energy and Environment, Docket No. NHTSA-
2021-0030-0412 (June 11, 2021).
\201\ Maine Department of Environmental Protection, Docket No.
NHTSA-2021-0030-0249 (June 10, 2021).
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Commenters made clear that these reliance interests were tied to
programs in place at the time of the SAFE I Rule's promulgation. For
instance, California's South Coast Air Quality Management District
described how the SAFE I Rule invalidated ``state pollution control
standards which have been previously approved into State Implementation
Plans (SIPs).'' \202\ The State of California's comment described this
reliance in depth, noting that California's preempted regulatory
programs arose from what the State described as its longstanding
[[Page 74257]]
understanding of EPCA prior to the SAFE I Rule, which resulted in
``weighty state interests, developed over the course of decades of
implementing these state laws.'' \203\ This prolonged reliance on the
regulatory framework in place well before the SAFE I Rule led
California to invest substantial resources in the development of
affected state programs, as well as ``base long-term state planning''
on the continuation of these programs into the future.\204\
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\202\ South Coast Air Quality Management District, Docket No.
NHTSA-2021-0030-0446 (June 11, 2021).
\203\ State of California et al., Docket No. NHTSA-2021-0030-
0403, (June 11, 2021) (this comment also expressed that the SAFE I
Rule ``declared preempted long-standing laws that protect public
health and welfare and exercise core state police powers carefully
preserved by Congress in the Clean Air Act.'') (citing Cal. Code
Regs. tit. 13, Sec. 1960.1(g)(2) (1991)).
\204\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021).
---------------------------------------------------------------------------
In addition, states and local jurisdictions similarly feared that
by losing the state regulatory programs on which they had relied, the
jurisdictions faced substantial detrimental consequences if they failed
to meet required NAAQS levels. For example, a comment from a collective
of municipal entities stressed that ``vehicle emissions impact air
quality and a community's ability to meet required ozone levels.
Falling outside of required ozone levels can have negative impacts on
cities, potentially disqualifying them from federal funding
opportunities for highway and transit infrastructure.'' \205\ The
Connecticut Department of Transportation commented similarly, noting
that undermining state programs in this area was particularly harmful
to state interests, as satisfying NAAQS requirements was already a
difficult endeavor, which only became harder after the SAFE I
Rule.\206\ The Agency also received comments about this issue from the
electricity industry, which expressed unease that by undermining
established frameworks for NAAQS compliance, the SAFE I Rule could
disrupt regulatory schemes in other industries as well.\207\
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\205\ National League of Cities et al., Docket No. NHTSA-2021-
0030-0421 (June 11, 2021).
\206\ See Connecticut Department of Transportation, Docket No.
NHTSA-2021-0030-0330 (June 11, 2021).
\207\ See Edison Electric Institute, Docket No. NHTSA-2021-0030-
0396 (June 11, 2021) (expressing a concern that ``NHTSA's broad
preemption codification in SAFE I would compel states to shift the
emissions reductions they need for NAAQS attainment from automobiles
to stationary sources, including electric power generators.'').
---------------------------------------------------------------------------
In the SAFE I Rule, NHTSA expressly ``reject[ed] the notion that
California has valid reliance interests'' in preexisting state
regulations and programs, largely because the Rule labeled those
programs broadly preempted under the framework announced in the
rulemaking.\208\ Upon reconsideration, the Agency views its original
logic in this respect as circular, amounting to a conclusion that NHTSA
need not consider whether the breadth of its new regulations adequately
considered particular issues, such as federalism or reliance interests,
because those interests were already preempted according to the scope
articulated by the SAFE I Rule. However, as the comments to the current
proposal demonstrate, numerous states and local jurisdictions continue
to harbor deep concerns about the SAFE I Rule's sweeping prohibition of
programs on which they relied to accomplish important state regulatory
priorities--required by federal law that was not altered in the SAFE I
Rule--and promote the health and welfare of their citizens.
Accordingly, NHTSA concludes that the SAFE I Rule inappropriately
instituted an absolute preemption scheme that foreclosed any
consideration for whether a more narrowly tailored approach was
available instead.
---------------------------------------------------------------------------
\208\ CAFE Preemption NPRM, 86 FR at 51327.
---------------------------------------------------------------------------
A few commenters that objected to the Proposal touched upon
federalism issues, which the Agency do not believe persuasively argue
for continuing the approach in the SAFE I Rule. First, the American
Fuel & Petrochemical Manufacturers (AFPM) stated that ``it [was]
impractical to provide informed comment'' on the extent of federalism
at stake in the Proposal because the Proposal spoke about preemption
broadly rather than by reference to the status of specific state or
local programs.\209\ At base, this comment implies that NHTSA may not
conduct an informed reconsideration of the SAFE I Rule without
simultaneously announcing new substantive positions on how EPCA
preemption applies to particular programs. However, the Agency already
outlined the reasons such a view was unavailing in Section II.A. of
this notice. Moreover, this comment illustrates the advantages of a
more nuanced approach to the preemption issue than what had been taken
in the SAFE I rulemaking, as the issue may vary based on the particular
program at issue. In that respect, this comment underscores the exact
point that NHTSA has raised throughout this rulemaking: The idea that a
categorical and preemptive prohibition of state programs is not an
opportune way to deal with EPCA preemption because the precise
variables that inform the analysis likely differ for each case and
potentially factor into the accuracy of the individual preemption
analyses. AFPM's comment assumes such unknown variables and
``vagaries'' support retaining the SAFE I Rule, because absent specific
context about a particular program it is impossible to conduct the full
preemption analysis. But it was the SAFE I Rule that originally imposed
preemption at a categorical level, without regard for the context-
specific inquiries needed to conduct the full preemption analysis. As
such, AFPM's emphasis on the need to understand the specifics of the
programs affected by a preemption discussion only illustrates one of
the critical deficiencies of the SAFE I Rule's preemption analysis,
which this repeal rectifies.
---------------------------------------------------------------------------
\209\ American Fuel & Petrochemical Manufacturers, Docket No.
NHTSA-2021-0030-0425 (June 11, 2021).
---------------------------------------------------------------------------
AFPM's comment also concludes that states have a diminished
federalism interests in this area because ``Congress has clear
authority to regulate mobile sources that move in interstate commerce''
and ``EPCA expressly and clearly establishes that federal law preempts
state laws `related to' fuel economy.'' \210\ However, this argument
simply begs the substantive question of which programs Congress
intended to preempt under EPCA. As explained throughout this final
rule, the Agency believes that the categorical approach taken in the
SAFE I Rule is flawed on this question, as it ignores the potentially
varying characteristics of existing or even still-undefined future
programs and the degree to which those diverse attributes may bear upon
the EPCA preemption inquiry.
---------------------------------------------------------------------------
\210\ Id.
---------------------------------------------------------------------------
Similarly, comments such as AFPM's seek to minimize the SAFE I
Rule's effect on federalism interests by stressing that the ``SAFE I
Rule has no impact on states' abilities to adopt emissions regulations
that are not related to fuel economy, or to establish vehicle
registration fees, taxes and other'' such policies.\211\ Even if true,
this argument still presumes that the SAFE I Rule established a clear
delineation between programs prohibited under its regulations and those
that survived. However, as described further in Section II.B.iii. of
this final rule, the SAFE I Rule did not so clearly define the contours
of preemption. Instead, it only introduced new undefined standards into
the preemption discourse. Beyond this, it is insufficient to say that a
rulemaking that categorically forecloses some important federalism
interests is acceptable because at least it did not eliminate all
federalism interests. As evidenced by
[[Page 74258]]
the comments (many of which are set forth above), commenting states and
local jurisdictions almost uniformly emphasized the importance of the
regulatory agendas they believe were foreclosed by the SAFE I Rule's
preemptive scope, including regulatory programs that helped
jurisdictions attain the federal Clean Air Act's NAAQS. These are
substantial and legitimate interests that should not be overbroadly
discarded, particularly through categorical prohibitions that
unnecessarily foreclose opportunities to more carefully account for
those federalism interests in particularized contexts.
---------------------------------------------------------------------------
\211\ Id.
---------------------------------------------------------------------------
These federalism interests are especially illustrated by the degree
to which many of the state and local programs in question seek to
address critical matters of health and welfare within local
communities. The Proposal outlined a concern that a categorical
preemption scope inappropriately foreclosed potential opportunities to
address localized health and safety hazards facing states and
communities by preventing local governments from identifying solutions
needed for their individual citizens. This concern arose from the
Proposal's recognition that states have indicated that the standards at
issue were developed to protect the states' residents from dangerous
air pollution and the states' natural resources from the threats posed
by climate change. The comments to this Proposal continued to reiterate
a prevailing concern that the SAFE I Rule inappropriately and
unnecessarily deprived states and local jurisdictions of an important
regulatory tool to address hazards facing their local communities.
Commenters opposing a repeal contested this point, arguing instead
that ``the self-described purposes'' of any individual state program
are irrelevant to the EPCA preemption analysis, which is solely
concerned with the relationship between the state regulation in
question and fuel consumption.\212\ However, the position of these
commenters does not properly account for the full scope of the SAFE I
Rule. These commenters direct their views to the individualized
application of EPCA preemption to particular state or local programs,
arguing that no single purpose of an individual program can override
whether EPCA preempts that program. But the SAFE I Rule was a rule of
general applicability, not an adjudication of an individual program. As
such, the SAFE I Rule did not limit its analysis to the preemption of a
particular state program or narrow band of state regulation. Instead,
the SAFE I Rule grouped an entire segment of possible state regulation,
motor vehicle greenhouse gas emissions, and codified a regulation of
general applicability that preempted all possible initiatives currently
regulating in this segment or which may be devised in the future. This
is a much broader act and one not required by Section 32919, which does
not command NHTSA to issue any regulations, much less anticipatory
regulations that prospectively foreclose entire regulatory topics. When
evaluating whether such an unnecessarily broad scope was an appropriate
approach, it is both relevant and prudent to consider in the aggregate
what possible other purposes those preempted measures may have pursued.
And when this inquiry indicates, as it has here, that preemptively
prohibited programs are likely aimed at protecting the health and
welfare of state populations, the Agency is right to ask whether a more
narrowly tailored approach could have left more room for those
objectives or at least deferred the total foreclosure of them until
those programs were ripe for consideration.
---------------------------------------------------------------------------
\212\ National Automobile Dealers Association, Docket No. NHTSA-
2021-0030-0435 (June 10, 2021).
---------------------------------------------------------------------------
In contrast, the SAFE I Rule prohibited all state policies in a
vacuum, without any knowledge of even the most fundamental questions
about those policies, such as whose regulations are at issue, what
motor vehicle technologies are being regulated, which compliance paths
may be available, or what technological or policy breakthroughs may
occur in the future to alter the preemption analysis. Comments to the
Proposal indicate that, when a more thorough and nuanced consideration
of preemption is permitted, programs enveloped by the sweeping scope of
the SAFE I Rule potentially relate to important goals of protecting
health and welfare of local populations.
For instance, the State of California commented, noting that
affected state programs were originally devised as a means of
mitigating unique environmental challenges facing the state:
``California's greenhouse gas standards were first adopted 16 years ago
in response to the prospect of disruptions in the states' water supply,
increases in `catastrophic wildfires,' damage to the State's extensive
coastline and ocean ecosystems, aggravation of existing and severe air
quality problems and related adverse health impacts, and more.'' \213\
Even commenters opposing the Proposal acknowledged that the state
programs at issue initially arose from an effort to enable states to
address unique environmental challenges facing their communities.\214\
Other commenters likewise raised concerns about localized health
hazards from motor vehicle emissions, with a comment on behalf of a
collective of medical associations stressing that local conditions from
such emissions can ``form unhealthy ozone and particle pollution, which
can lead to premature death, hospitalizations, missed days of work and
school, asthma attacks and a host of other health problems.'' \215\
Commenters also raised environmental justice concerns, describing these
pollution hazards as not borne uniformly across the country, but
instead particularly manifested in minority and low-income communities.
For instance, the Bay Area Air Quality Management District commented to
stress that the policy flexibility foreclosed by the SAFE I Rule was
``critical to protecting communities that suffer more from localized
air pollution than others'' and especially essential ``to address
disparate air pollution impacts that can harm local communities,
particularly low income and communities of color in the San Francisco
Bay Area.'' \216\ Likewise, in summarizing health risks from enhanced
motor vehicle emissions, the medical associations' comment identified
these problems as ``disproportionately impact[ing] communities located
near highways, ports, warehouses and other places where traffic is
concentrated--which are
[[Page 74259]]
more likely to be low-income or communities of color.'' \217\
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\213\ State of California et al., Docket No. NHTSA-2021-0030-
0403 (June 11, 2021) (citing 2002 Cal. Stat. c. 200 (A.B. 1493)
(Digest)).
\214\ See Urban Air Initiative et al., Docket No. NHTSA-2021-
0030-0423 (June 11, 2021) (describing the Section 209 waiver process
under the Clean Air Act by explaining that ``Congress justified this
waiver exception based on California's `unique' smog (ground-level
ozone) problems, caused by California-specific conditions such as
the `numerous thermal inversions that occur within that state
because of its geography and prevailing wind patterns.'' ') (quoting
California State Motor Vehicle Pollution Control Standards: Waiver
of Federal Preemption Notice of Decision, 49 FR 18887, 18890 (May 3,
1984) (which itself cited 113 Cong. Reg. 30,948, (Nov. 2, 1967))).
\215\ Allergy & Asthma Network et al., Docket No. NHTSA-2021-
0030-0299 (June 4, 2021). See also Sierra Club Connecticut Chapter,
Docket No. NHTSA-2021-0030-0378 (June 11, 2021) (expressing concern
about localized ozone pollution in Connecticut and associated asthma
risks), Sierra Club Toiyabe Chapter, Docket No. NHTSA-2021-0030-0161
(June 10, 2021).
\216\ Bay Area Air Quality Management District, Docket No.
NHTSA-2021-0030-0371 (June 11, 2021).
\217\ Allergy & Asthma Network et al., Docket No. NHTSA-2021-
0030-0299 (June 4, 2021).
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Despite such a diverse array of challenges, commenting states and
local jurisdictions consistently agreed that the inflexibility of the
SAFE I Rule's broad preemption determination foreclosed opportunities
for them to develop innovative policy solutions to the unique issues
they faced that were still consistent with Federal law. This need to
allow for more in
[…truncated; see source link]Indexed from Federal Register on December 29, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.