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American Petroleum Inst. v. Jorling

Citation: 19 ELR 21051
No. No. 89-CV-238, 710 F. Supp. 421/29 ERC 1457/(N.D.N.Y., 04/04/1989)

The court holds that a petroleum industry trade organization is not entitled to a preliminary injunction to halt implementation of New York's motor vehicle fuel volatility rule even though it is likely to succeed on the merits of its claim that Clean Air Act §211 preempts the state rule. After the Environmental Protection Agency (EPA) proposed its current gasoline volatility regulations in 1987, but before those regulations were approved, the air emission regulatory agencies of nine northeastern states including the New York State Department of Environmental Conservation (DEC) decided to prohibit the sale of gasoline with a volatility greater than a Reid Vapor Pressure (RVP) of 9.0 pounds per square inch (psi) between May 1 and September 15 of each year (the RVP rule), corresponding to the months when ground ozone levels are highest. EPA's regulations, effective April 21, 1989, provide for an RVP for New York of 10.5 psi during these months. The court first holds that the DEC's postponement of the implementation date of the RVP rule for one month has not made this suit moot. Although EPA has since proposed to approve an RVP of 9.0 psi in New York, there is no guarantee that the state will not require a 9.0 psi RVP standard prior to EPA approval. The court next holds that plaintiff is likely to succeed on its claim that Clean Air Act §211(c)(4)(A) preempts more restrictive state fuel volatility regulations. Section 211 provides explicit preemption language and EPA has adopted its own RVP regulations. Although New York has sought EPA approval of its gasoline volatility regulations, and EPA has proposed to approve the request, the Supremacy Clause precludes a state from enforcing or attempting to enforce any portion of such a rule unless it has been approved by the EPA. The state's argument that there is little threat of enforcement of the rule, absent EPA approval, fails since the state has not expressly conceded that it cannot enforce the RVP rule in advance of EPA approval. The court holds that it will not suspend this action pending referral of the preemption issue to the EPA for its views under the doctrine of primary jurisdiction, since EPA has already announced its opinion that the state's regulations are preempted and the preemption question is an issue of law on which EPA's views are not binding. Finally, the court holds that plaintiff has not shown that its members will suffer irreparable injury if an injunction is not granted. Enforcement of the RVP rule, even if contrary to the Supremacy and Commerce Clauses, would not constitute irreparable harm per se because the rule serves a structural purpose and does not protect a personal constitutional right. Plaintiff did not base its claim of irreparable injury on the possibility that civil or criminal penalties might be imposed, and plaintiff's predictions of added industry expenses and irremediable damage to its members' reputations as reliable suppliers of gasoline are insufficient to establish irreparable injury.

Counsel for Plaintiff
Thomas J. Moloney, Michael R. Chayet
Cleary, Gottlieb, Steen & Hamilton
One State Street Plaza, New York NY 10004
(212) 344-0600

Charles F. Lettow, John M. Bredehoft
Cleary, Gottlieb, Steen & Hamilton
1752 N. St. NW, Washington DC 20036
(202) 728-2700

Counsel for Defendants
Robert Abrams, Attorney General; David R. Wooley, Michael J. Moore, Ass't Attorneys General
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330