STATE OF RHODE ISLAND 

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 

OFFICE OF AIR RESOURCES 

In Re: Proposed Amendments to Air Pollution Control Regulation No . 37, entitled 

"Rhode Island's Low Emission Vehicle Program" . 

DECISION 

Introduction 

On October 31, 2005 notice was published in the Providence Journal and was mailed to 

interested parties announcing a public hearing and comment period to accept comments 

on the proposed amendments to Air Pollution Control Regulation No. 37. On 

November 7th a second notice was published in the Providence Journal clarifying the date 

of the Public Hearing as "Wednesday, November 30, 2005". The public hearing was held 

on November 30, 2005 . Written comments were entered into the record at the public 

hearing. The comment period closed at 4 :00 pm of November 30, 2005 . This decision 

will present the Department of Environmental Management's response to comments and 

the final regulation for adoption. All written and oral submissions respecting the 

proposed regulation were fully considered. The following is a concise statement of the 

principal reasons for and against the proposed regulation's adoption, and will further 

incorporate the reasons for overruling the considerations urged against its adoption. 

The Administrative Procedures Act requires agencies proposing to amend or promulgate 

regulations demonstrate the need for amendment or new regulation, demonstrate that no 

alternative approaches considered would be as effective and less burdensome, identify 

any overlapping or duplicate state regulations, and determine whether the amendment or 

new regulation would have significant adverse economic impact on small business or any 

city or town. Information to comply with those requirements was included in the Fact 

Sheet, which was available when the Notice of Public Hearing and Comment Period was 

published . The Fact Sheet is appended to this decision. 

Response to Comments 

This section will present the Department's response to comments made at the public 

hearing and written comments received during the comment period . Comments were 

paraphrased and similar comments were grouped together. The Department's response 

follows each comment. 

Comment: Of 232 comments received, either written or during oral testimony, 150 were 

positive in nature. Eleven of these positive comments provided individual programmatic 

support and the remaining 92 provided general support of the program. Positive 

comments included statements such as : "RI has a narrow window of opportunity to join 

other states and leaders in a fight against global warming, and we're urging today the 

Department to move ahead and finalize these proposed amendments by the end of the 
year to be a part of that.", and ". . . the proposed rule will be good for Rhode Island. It is 

pro-environment, pro-consumer, will improve public health, and help our economy." 

Another commenter stated : "The most effective action available to Rhode Island [to 

reduce global warming] is to update our state's Clean Car Standard to reflect California's 

new global warming regulations, . . ." 

Response: Comments noted. No response necessary . 

Comment: Several comments were submitted indicating that these regulations would 

have negative impacts on the U.S . auto industry because they will have to change their 

product lines to comply. Reduction in employment would be nationwide, as many as 

55,000 U .S . jobs. Additionally, it was pointed out that certain of the large manufacturers 

will have a disproportionate burden placed on them due to the greater proportion of larger 

vehicle models that they offer. 

On the other hand, one industry representative pointed out in his comments the great 

improvements that have been achieved by the auto industry over the past 30 years in 

producing many different models of cars meeting higher standards and using new 

technologies to improve performance and emissions . 

Response: Based on a review of comment responses prepared by the California 

Air Resources Board (CARB) and published as the "Final Statement of 

Reasons'), dated August 4, 2005, these concerns were raised during the 

rulemaking activities in California. In those responses, CARB states: "The feet 

average emissions reduction approach used in the greenhouse gas regulations 

provides large manufacturers with the f exibility to sell vehicles with greenhouse 

gas emission levels that are higher than the f eet average, provided those 

emissions are offset by vehicles with lower greenhouse gas emissions . This should 

provide sufficient f exibility to allow large manufacturers . . . to both compete with 

the much smaller manufacturers and still be able to meet its feet average 

greenhouse gas obligations . " DEM agrees with CARB's position. 

As pointed out by a commenter representing the auto industry, historically the 

auto industry has successfully improved auto emissions in compliance with 

stricter air emission limits and been able to improve performance in a large 

portion of their car models. 

Comment: Conflicting comments were received relating to the availability of 

technologies necessary to comply with these regulations. One comment indicated that 

some of these technologies have technical obstacles that still must be overcome and the 

timeframe available is too short. 

Additionally, a commenter noted that these regulations will stimulate additional 

technological innovation. 
Response: CARB developed their program in such a way as to provide time for 

the auto manufacturers to phase in modifications to their vehicle designs to 

comply with standards that will become rnore stringent each year, beginning with 

ntodel year (MY) 2009. As commenters pointed out, the standards that were 

developed by CARB recognized recent improvements in engine and drive train 

technology that are cost effective and in use today. Mid-tenn requirements (MY 

2013) may require additional advancements in technology, but even these 

changes have been identified and efforts are underway to complete their 

development and incorporation into vehicle designs . Based on the CARB 

research, the Department feels that sufficient time and technology is available to 

meet the modest requirements imposed on the short term, while work will 

continue to incorporate additional controls to meet the achievable longer terrn 

requirements. 

Comment: Comments were submitted relating to the issue of reductions in greenhouse 

gas (GHG) emissions from this program and whether the reductions would be measurable 

or-have any effect on the climate in Rhode Island. As pointed out by several commenters, 

Rhode Island on its own can't solve global warming, it's a global problem. Rhode Island 

must implement its own regulatory program to begin to address the emissions it can 

control . 

One commenter stated in oral comments that "to say that it's meaningless or insignificant 

or not effective for Rhode Island to be moving forward with its own standards . . . to say 

that that's not meaningful is to say the same thing as saying it's not meaningful when an 

individual votes." 

As pointed out by a commenter, the transportation sector is responsible for almost 40% of 

the GHG produced in Rhode Island. The adoption of these standards will result in 

reductions of these emissions greater than any other action identified in the Climate 

Change Action Plan adopted by the Conference of New England Governors and Eastern 

Canadian Premiers, signed by Rhode Island. 

Response: The State of Rhode Island has chosen, as a public policy, to address 

the global issue ofglobal warming and therefore GHG emissions . That policy 

resulted, among other things, in Rhode Island's commitment to a state emission 

reduction goal. The reduction goal was developed by Rhode Island's Greenhouse 

Gas Stakeholder process, recipient of an EPA Climate Protection award for 

development of the statewide Greenhouse Gas Action Plan. The diverse and 

inclusive Stakeholder Group recommended the adoption California's GHG 

standards. Rhode Island agreed to the regional GHG reduction goals of the 

Climate Action Plan adopted by the Conference of New England Governors and 

Eastern Canadian Premiers, recently recognized as one of The Climate 

Group's/Business Week magazine's Low Carbon Leaders of the Decade. 

Regulating GHG emission from new motor vehicles by adopting California's 

emissions standards is certainly consistent with Rhode Island's previous actions 

and will provide more emission reduction than any other strategy available. 
While Rhode Island's contributions to the total global emissions may be small; 

Rhode Island will be affected by global warnaing and has chosen not to ignore its 

responsibility to do its part, as well as to set an example for others to follow. As 

one commenter pointed out, the impact frorn the adoption of these regulations in 

all of the states joining with California will be measurable and therefore a 

significant contribution to reducing GHG emissions and combating global 

warming. 

Comment: Conflicting comments were submitted relative to the issue of regulatory 

program consistency . A commenter said that Rhode Island must adopt the GHG 

emissions portion of the California program to remain consistent under the requirements 

of section 177 of the Clean Air Act (CAA) . Although, another commenter pointed out, 

EPA has never required that every portion of the California program must be adopted by 

other states wanting to incorporate the California standards in their programs. 

Response: Under the CAA, states other than California can adopt California's 

new vehicle standards if, among other things, the state adopts standards that are 

identical to Califoriiia's. In any event, Rhode Island is not taking a position on 

whether adoption is required or not. Rhode Island has chosen to remain 

consistent with the California program to address the GHG emissions from new 

vehicles sold here in Rhode Island and to provide Rhode Island residents the 

added benefit of more efficient vehicles. This consistent approach allows Rhode 

Island and the other states in the Northeast (e.g. New York, Vermont, 

Connecticut, and Massachusetts) and Northwest regions of the country 

(Washington and Oregon) taking similar actions, to adopt the same standards 

that California developed through an extensive developmental process. This 

efficient approach will also allow the auto industry to develop a single 

compliance strategy across all of the participating states . 

Comment: Comments were received relating to the impact of the proposed regulations 

on consumer choice. One commenter indicated that consumers who are not required to 

purchase a California vehicle will opt not to spend the additional money. This would 

result in a loss to Rhode Island auto dealers who will lose these "cross-border sales". 

Response: It is not necessarily true that consumers would not pay a premium for 

cleaner more fuel efficient vehicles. In any event, Rhode Island is surrounded by 

states that are also adopting these standards so there would be little chance, if 

any, for these types of "cross-border" sales. Because the current and GHG 

standards are f eetwide standards, and because our border states are also 

adopting the same standards, consumers are not faced with a choice of buying a 

vehicle that doesn't come from a fleet complying with the California GHG 

emission standards. 

One commenter noted that the statute governing alifa,rnia's regulations requires 

that the program not ban the sale of specific types of vehicles, nor require 

vehicles to have weight reductions. DEMfeels that safeguards put in place in the 
California program, specificallv aimed at protecting consumer choice through the 

continued availability of the full range of vehicle sizes and types, will ensure that 

consumer choice need not be adversely impacted by the adoption of these 

amendments. 

Comment: A major area of comments on these proposed regulations relate to the cost of 

compliance, or, the cost impact on selling prices of vehicles once the regulations are in 

effect . Analysis by CARB indicates that the highest increase, on average, to the price of 

cars in MY 2016 will be $1,064 . Comments from the auto industry say the increase will 

be more, and during the oral comments, a representative of the auto manufacturers used a 

figure of $3,000 . 

Additionally, commenters indicated that the operating cost savings were exaggerated by 

CARB and therefore, the increased purchase prices would never be recovered by 

consumers. Conversely, commenters pointed out that the cost estimates provided by the 

auto manufacturers in past rulemaking efforts have been much higher than the actual 

increases experienced from implementing earlier regulatory changes, while estimates 

predicted by CARB have been very close to the actual increases. 

Several commenters noted that they were more than willing to simply pay more for their 

vehicles in order to achieve the GHG emission reductions . Commenters also noted that 

there are other costs to be considered. The cost of health care associated with exposure to 

automobile emissions should be factored into the analysis . 

Response: DEM has reviewed the comments received on the issue of the cost 

impact on consumers. Based on the work done by CARB and the information 

provided concerning historical cost estimating by both proponents and opponents 

to earlier rulemakings, DEM agrees with the cost estimates prepared by CARB. 

Therefore, the modest projected increase in new vehicle cost, coupled with a 

decrease in operating costs results in an overall savings to consumers. 

Comment: Comments were submitted questioning the authority of DEM to adopt these 

regulations relative to provisions in the CAA, as well as under State law. Questions were 

raised relating to preemption issues and EPA's need to grant a waiver to California before 

other states can adopt their program. Additionally, concerns were raised over the 

constitutionality of the regulations relating to the Foreign Affairs Supremacy Clause. 

However, as pointed out by a commenter, Rhode Island cannot afford to wait. It is 

imperative that the Rhode Island program, as well as the programs of other states 

incorporating the GHG emission standards, stays in sync with the California program so 

that all programs regulate the same model year vehicles. 

One commenter noted that the Department's authority to regulate motor vehicle 

emissions, provides that the regulations "shall not be more stringent than the mandatory 

standards established by federal law or regulation . . .". ' 
Response: The preentption issue will likely be resolved in a venue other than that 

provided by Rhode Island's proposed adoption of California GHG emission 

standards. Ultimately, the Rhode Island regulations may have to be modified to 

adjust to any changes mandated in the California regulations. 

The issue of whether a waiver has been granted to California may similarly 

impact the Rhode Island regulations. If the regulations must be removed from the 

California program due to the lack-of an EPA granted waiver, the Rhode Island 

program may have to be modified. DEM accepts the premise that it is important 

to remain consistent in time with California and the other neighboring states 

implementing these GHG provisions and will take appropriate actions in the 

future if the program is not implemented in California or if the EPA chooses not 

to issue a waiver to California. 

Regarding the Foreign Affairs Supremacy Clause, the United States Congress has 

given the authority to the State through the Clean Air Act, to adopt the California 

program . The Clean Air Act is presumptively constitutional and requires action 

on the part of the State of Rhode Island to comply with its terms. The State has 

chosen to follow the California program as an alternative provided by the Act. 

Until such time as a court of competent jurisdiction renders an opinion on the 

California program to the contrary, the State will continue to follow the law. 

DEM also notes that because the CAA specifically allows states to adopt the 

California standards, in so doing, DEM cannot be considered to be adopting 

requirements that are more stringent than the federal requirements. 

Comment: Comments were received relative to possible modifications of the California 

program that should be considered by DEM. One commenter wanted DEM to adopt more 

stringent regulations. Auto industry comments were concerned about certain provisions 

of the regulations such as definitions, impact on commercial vehicles and some of the 

methods used by CARB to determine COZ equivalent emissions fleet averages. 

Response: DEMperceives that under the CAA Rhode Island has only two 

choices: adopt the identical California program, or rely on federal standards 

governing the emissions from motor vehicles. Rhode Island has chosen to adopt 

the California regulations as they were adopted in California for the purpose of 

consistency and to avoid issues under the CAA concerning the "identical" nature 

of our regulations . 

California's regulations dictate the size and makeup of auto manufacturers 

covered under these regulations and for consistency, these provisions will not be 

modified in the Rhode Island program. Additionally, any modifications to the 

California regulations, resulting from future rulemaking or litigation activities in 

California, will have to be promulgated here in Rhode Island to incorporate the 

changes in the Rhode Island program to maintain the identical nature of these 

regulations. 
Comment: Comments were submitted pointing out that there may be an increase in the 

emissions of other criteria and ozone precursor pollutants as a result of the adoption of 

these GHG emissions reduction regulations. Due to the differences in the way these 

emissions will be regulated, and the way the other pollutant emissions are currently 

regulated, it could be that because of the anticipated "rebound" effect (car owners may 

choose to drive their cars more when their car's efficiencies improve as a result of the 

GHG emissions reduction program) and the possible tendency for car owners to delay in 

purchasing slightly higher priced cars in the future (fleet turnover). 

Also comments were submitted as a critical review of the State of Vermont's response to 

analysis of impacts in Vermont relating to adoption of the California regulations on 

criteria and precursor pollutants from the rebound effect and fleet turnover. 

Response: Conflicting ir formation has been presented concerning the impact 

these regulations will have on consumer driving habits. Estimates of the rebound 

effect from CARB are much lower than estimates provided by opposing 

comrnenters. A document prepared by Meszler Engineering Services dated 

November 22, 2005, responding to issues raised during the rulemaking in 

Vermont relating to their adoption of the California standards, refutes analyses 

prepared by opponents of those and Rhode Island's proposed regulations . Just as 

in the case of cost estimates developed relating to these regulations, the estimates 

by opponents show much higher increases in emissions of criteria and precursor 

pollutants than those developed by the proponents of these regulations . DEM 

accepts the estimates prepared by CARB which indicate a much lower impact. As 

far as the feet turnover impact, we feel that the reductions in GHG emissions will 

be worth a slight increase in other pollutant emissions that will result from a 

future car owner delaying their new car purchases. However, with the price of 

fuel only destined to increase, the appeal of these new cars may minimize both of 

these impacts. 
Decision 

Based on the comments and the response to comments, it is the decision of the Hearing 

Officer to adopt the amendments to Air Pollution Control Regulation No. 37 as proposed. 

The final amended regulation is appended to this decision . The final regulation is to be 

filed with the Secretary of State. 

`ZZ i 

--------------------------- 

Steph'en 1Vlajkut, Chief Date 

Offi6e of Air Resources 

Hearing Officer 

Approved: 

~/r/~ l`f" 

--------- - -~ -'----------- 

W. Michael Sullivan, Director Date 

Department of Environmental Management