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Virginia v. EPA

ELR Citation: 27 ELR 21380
Nos. 95-1163 et al., 116 F.3d 499/(D.C. Cir., 06/10/1997) modification

The court holds that 40 C.F.R. Part 85, which deals with the determination of vehicle model years for states voluntarily choosing to adopt restrictive vehicle emission standards under Clean Air Act §177, is severable from the rest of a previously vacated U.S. Environmental Protection Agency (EPA) rule that imposed vehicle emission standards on the northeastern states. One of the state petitioners does not oppose EPA's request. And the court cannot consider the arguments of the other petitioners, automobile manufacturer associations, because they did not seek judicial review of the final model-year provisions on the grounds they presently advance. The court agrees with EPA that reinstating Part 85 will not affect the substance of its previous ruling. Further, there is no reason for the court to doubt that EPA would have enacted the model-year provisions even if it had not ordered the low emission vehicle (LEV) program. Severance of the model-year provisions will not give rise to the constitutional or statutory issues the court identified in its previous opinion. And there is no indication that the model-year provisions would not have been passed but for the inclusion of the LEV program the court struck down. Therefore, the court grants EPA's petition for rehearing and modifies its initial decision, Virginia v. EPA, 27 ELR 20718 (D.C. Cir. 1997).

Counsel for Petitioners
John P. Woodley Jr., Deputy Attorney General
Attorney General's Office
900 E. Main St., Richmond VA 23219
(804) 786-2071

Counsel for Respondent
Ronald M. Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WILLIAMS, RANDOLPH, and ROGERS, Circuit Judges.