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Motor Vehicle Mfrs. Ass'n of the United States v. New York State Dep't of Envtl. Conservation

ELR Citation: 26 ELR 20564
Nos. No. 94-9114, 79 F.3d 1298/41 ERC 1993/(2d Cir., 01/10/1996) Aff'd

The court holds that New York's plan to adopt the California low emission vehicle (LEV) program without adopting California regulations mandating the sale of low-sulfur fuels does not violate Clean Air Act (CAA) §177's "third-vehicle" prohibition. Section 177 allows states to piggyback on California's exemption from federal preemption of state regulation of automotive tailpipe emissions by adopting emission control standards identical to California's, as long as that does not have the effect of creating a motor vehicle different from that certified for use in California.

The court first holds unripe plaintiffs' claims that New York's regulations for implementing the New York LEV program will violate §177, because such regulations do not yet exist. While New York has announced "in-use" standards, it has not implemented an in-use testing program. Also, New York has not yet created an inspection and maintenance program for LEVs. To decide this question would be to issue an advisory opinion about the impact of nonexistent testing programs on nonexistent cars. The court next addresses plaintiffs' claim that a prohibited third vehicle would result from the use of high-sulfur fuel in the LEVs in New York because such fuel would cause on-board catalytic converter diagnostic systems to malfunction, which in turn would require that a mounting apparatus for converters be used in New York LEVs that is different from that used in California LEVs. The court holds that the decision as to what type of mounting device to employ for the converters is strictly a marketing choice. Using a different mounting device in New York LEVs is simply an appealing marketing preference that would save consumers cost and time and would, therefore, be comparable to design decisions. Finally, the court holds that the third-vehicle claim is not viable if it is based solely on the difference between the California and federal fuels. Alterations stemming from differences in fuels, as opposed to differences in emissions standards, cannot amount to a third-vehicle violation. Finally, the court holds that the district court did not abuse its discretion in denying plaintiffs' motion to proceed with depositions to flesh out the issues related to certification of the design modifications, because those issues were not material to the case.

[Other decisions in this litigation are published at 23 ELR 20879, 24 ELR 20311, 20552, and 25 ELR 20675.]

Counsel for Plaintiffs
Daniel F. Attridge
Kirkland & Ellis
655 15th St. NW, Ste. 1200, Washington DC 20005
(202) 879-5000

Counsel for Defendants
Joan L. Matthews, Ass't Attorney General
Attorney General's Office
New York State Department of Law
The Capitol, Albany NY 12224
(518) 474-7124

Before Newman, Cardamone, and Parker, JJ.