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Exxon Corp. v. New York, City of

ELR Citation: 7 ELR 20130
Nos. No. 74-1806, 548 F.2d 1088/9 ERC 1670/(2d Cir., 01/17/1977) Rev'd

Reversing a lower court decision, 4 ELR 20565, the Second Circuit declares that the Clean Air Act preempts New York City's ordinance concerning gasoline lead content and volatility. The challenged ordinance required phased reduction of lead according to a shorter timetable than that adopted by the Environmental Protection Agency (EPA) and upheld in Ethyl Corp. v. EPA, 6 ELR 20267 (D.C. Cir. 1976). Section 1857f-6c(c)(4)(A) of the Clean Air Act explicitly precludes a state or subdivision thereof from regulating motor vehicle fuels or fuel additives unless such regulation is identical to that adopted by EPA. Federal regulation under the Clean Air Act becomes effective upon promulgation of the regulation (Sept. 1976), not the effective date of the regulation (Jan. 1978); thus, the city's regulations are in clear conflict with the federal scheme. Even though federal preemption must be narrowly construed, this ordinance disrupts rather than aids the federal regulation and must fall. New York City's ordinance does not come within the relevant exception that allows state regulation of fuel additives within the context of an approved state implementation plan. Preemption is further guaranteed by the explicit provision in §1857d-1 allowing state regulation of stationary sources, but not of mobile sources. As to the ordinance's volatility provision, which requires replacement of the butane-pertane fraction, the city has added a control more onerous than that required by EPA. Since this variance is not part of an approved implementation plan, it also is preempted.

Counsel for Plaintiff
Kent Sinclair, Jr.
Sherman & Sterling
53 Wall St.
New York NY 10005
(212) 483-1000

Counsel for Defendants
W. Bernard Richman, Corporation Counsel
Evelyn J. Junge
Municipal Building
New York NY 10013
(212) 566-3929

For himself, Van Graafeiland & Gagliardi,* JJ.