[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Yost v. Volkswagen Aktiengesellschaft , Slip Opinion No. 2021-Ohio-2121.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -2121
T HE S TATE EX REL
. Y OST , A TTY . G EN ., A PPELLEE , v . V OLKSWAGEN A KTIENGESELLSCHAFT , D . B . A
. V OLKSWAGEN G ROUP AND / OR V OLKSWAGEN AG, ET AL ., A PPELLANTS
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State ex rel. Yost v. Volkswagen Aktiengesellschaft , Slip Opinion No. 2021-Ohio-2121.] Federal preemption—Vehicle-emissions an ti-tampering claims—T he federal Clean Air Act neither expressly nor impliedly preempts R.C. 3704.16(C)(3) or precludes an anti-tampering claim against a vehicle manufacturer under
Ohio’s Air Pollution Control Act for the manufacturer’s post-sale tampering with a vehicle’s emissi ons-control system—Court of appeals’ judgment affirmed. (No. 2020-0092—Submitted Janua ry 26, 2021—Decided June 29, 2021 .)
A PPEAL from the Court of Appeals for Franklin County, No. 19AP-7, 2019-Ohio-5084.

__________________S UPREME C OURT OF O HIO

2 F ISCHER , J. {¶ 1} In this case, we are asked to decide whether the federal Clean Air Act, 42 U.S.C. 7401 et seq., preempts Ohio law and precludes an anti -tampering claim under Ohio’s Air Pollution Control Act, R.C. 3704.01 et seq. F or the reasons that follow, we hold that it does not and therefore affirm the judgm ent of the Tenth District Court of Appeals.
I. BACKGROUND {¶ 2} Starting around 2009, appellant Vol kswagen Aktiengesellschaft, d.b.a. Volkswagen Group and/or Volkswagen AG (“Volkswagen”), 1 programmed
vehicles manufactured and sold under its various labels with so ftware that would enable those vehicles to perform b etter than they otherwise wou ld have on federal emissions tests. The software, sometimes referred to as a “def eat device,” would identify when a Volkswagen vehicle was being tested by regulato rs for compliance
with federal emissions standards. Once the software detected th at an emissions test was in progress, the software would trigger equipment within th e vehicle that would reduce the vehicle’s emissions to an acceptable level. In real ity, of course, emissions from the vehicle during everyday driving, i.e., under non-test conditions,
were well above the feder ally imposed legal limit. {¶ 3} Several years into that scheme, Volkswagen learned that its
emissions-control software was not working properly and was cau sing certain performance problems in its vehic les. Volkswagen updated the s oftware to fix those problems and to continue s kirting federal emissions stand ards. Starting around 2013, Volkswagen installed the improved and updated soft ware in new

1. Other defendants named in the complaint and appellants here are Audi AG; Volkswagen Group of America, Inc., d.b.a. Volkswagen of America, Inc., or Audi o f America, Inc.; Volkswagen of America, Inc.; Audi of America, L.L.C.; Dr. Ing. h.c. F. Porsch e AG, d.b.a. Porsche AG; and Porsche Cars North America, Inc.January Term, 2021

3 vehicles slated for sale in the United States. Without telling its customers the true reason why, Volkswagen also installed the updated software in i ts older vehicles through a voluntary recall program and when its customers broug ht their vehicles
in for routine maintenance. {¶ 4} Eventually, the United States Environmental Protection Agency (“EPA”) discovered Volkswagen’s s cheme. In a subsequent enforc ement action, Volkswagen admitted to all of this and agreed to pay a $2.8 bil lion penalty in connection with its wrongdoing. {¶ 5} In 2016, then Ohio Attorney General Mike DeWine sued Volkswagen for its vehicle-emissions tampering, alleging that Volkswagen’s conduct, which impacted approximately 14,000 vehicles that had been sold or le ased in Ohio, violated Ohio’s Air Pollution Control Act, R.C. 3704.01 et seq. As relevant here, Volkswagen moved to dismiss the attorney general’s claims on th e grounds that Ohio’s anti-tampering statute was preempted by the federal Clea n Air Act, 42 U.S.C. 7401 et seq., and that the attorney general’s claims wer e therefore precluded. The trial court agreed with Volks wagen’s preemption argument an d granted Volkswagen’s motion to dismiss. {¶ 6} On appeal to the Tenth District, appellee, Ohio Attorney Genera l Dave Yost, 2 argued that the trial court erre d when it determined that fede ral preemption principles barred the state’s claims against Volkswa gen, because the
federal Clean Air Act draws a critical distinction between new and used vehicles. While the attorney general conceded below that federal law alon e governs emissions from new vehicles, he a rgued that the federal legisla tive scheme does not preempt Ohio law and preclude sta te-based claims concerning post-sale tampering with a vehicle’s emissions-control system.

2. Attorney General Yost was substituted for former Attorney G eneral DeWine as a party during the appeal below to the Tenth District. See App.R. 29(C)(1).S UPREME C OURT OF O HIO

4 {¶ 7} The Tenth District agreed with t he attorney general, concluding that the federal Clean Air Act evinces “no clear and manifest congre ssional purpose to [expressly or impliedly] preempt t he State’s in-use motor vehic le emission control system tampering claims.” 2019-Ohio-5084, 137 N.E.3d 1267, ¶ 29. As a result, the court of appeals reversed the trial court’s judgment and re manded the matter for further proceedings. Id. at ¶ 35. {¶ 8} Following the Tenth District’s decision, Volkswagen appealed to this court and we accepted its appeal to consider whether the federa l Clean Air Act either expressly or impliedly preempts state-law claims against a manufacturer for its post-sale emissions control tampering. See 158 Ohio St.3d 1450, 2020-Ohio1090, 141 N.E.3d 985.
II. ANALYSIS A. Federal Preemption {¶ 9} Before turning to whether federa l law expressly or impliedly pr eempts Ohio’s anti-tampering law and precludes the state-law claims in volved here, it is helpful to review some basic prin ciples regarding federal preem ption. {¶ 10} The doctrine of federal preemption originates from the Supremac y Clause of the United States Constitution, which provides that t he “the Laws of the
United States * * * shall be the s upreme Law of the Land; and t he Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstandi ng.” Article VI, cl. 2. {¶ 11} Under the Supremacy Clause, the United States Congress has the power to preempt state law. In re Miamisburg Train Derailment Litigation , 68 Ohio St.3d 255, 259, 626 N.E.2d 85 (1994); see also Gibbons v. Ogden , 22 U.S. 1, 210-211, 6 L.Ed. 23 (1824) (“the act of Congress, or the treaty , is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it”). Congress may do so either expressly or impliedl y. Kansas v. Garcia ,January Term, 2021

5 ___U.S. ___, 140 S.Ct. 791, 801, 206 L.Ed.2d 146 (2020); Girard v. Youngstown Belt Ry. Co. , 134 Ohio St.3d 79, 2012-Ohio-5370, 979 N.E.3d 1273, ¶ 14. {¶ 12} When Congress expressly preempts state law, it explicitly says so with clear statutory language. English v. Gen. Elec. Co. , 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). When considering whether pr eemption is implied, courts look to congressiona l intent to determine wheth er Congress meant to preempt state law without saying as much. See id. at 79. Identifying implied preemption is thus a little more complicated than identifying e xpress preemption, but courts generally find this ty pe of preemption in two circum stances. {¶ 13} The first circumstance occurs when Congress has enacted a legislative and regulatory scheme that is so pervasive “ ‘that Congress left no room for the States to supplement it’ ” or when the legislative and regulatory scheme “ ‘touch[es] a field in which the federal interest is so domina nt that the federal system will be assumed to preclude enforcement of state laws on the same subject.’ ” (Brackets added in English .) Id. , quoting Rice v. Santa Fe Elevator Corp ., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Imp lied preemption of this variety is ref erred to as “field preemption. ” English at 79. Volkswagen has not presented a field-preemption argument here, so we focus our analysis on the second type of imp lied preemption, which is dis cussed below. {¶ 14} The second circumstance in which implied preemption is found occurs when a state law “actually conflicts with federal law.” Id. This type of implied preemption is fittingly referred to as “conflict preemp tion.” Id. at fn. 5. Conflict preemption may be broke n down further into subcategori es depending on whether the conflict exists because (1) compliance with both st ate and federal law is impossible, id. at 79, citing Florida Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or (2) the state law “ ‘stands as an obstacle to the accomplishment and execution of the full purposesS UPREME C OURT OF O HIO

6 and objectives of Congress,’ ” id. , quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). B. Standard of Review {¶ 15} Because the “purpose of Congress is the ultimate touchstone,” Retail Clerks v. Internatl. Assn., Local 1625, AFL-CIO v. Schermerhorn , 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963), preemption—whether ex press or implied—is primarily a question of legislative intent and so ou r focus is on the text and structure of the provisions involved. Ohio State Bldg. & Constr. Trades Council v. Cuyahoga Cty. Bd. of Commrs. , 98 Ohio St.3d 214, 2002-Ohio-7213, 781 N.E.2d 951, ¶ 46; Malone v. White Motor Corp. , 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978). Preemption is thus a question of law, Pinchot v. Charter One Bank, F.S.B. , 99 Ohio St.3d 390, 2003-Ohio-4122, 792 N.E.2d 1105, ¶ 39, and we conduct a de novo review of a judgment that was ba sed on preemption grounds. See Menorah Park Ctr. for Senior Living v. Rolston , ___ Ohio St.3d ___, 2020-Ohio-6658, ___ N.E.3d ___, ¶ 12.
C. The Federal Clean Air Act and Ohio’s Air Pollution Control Act
1. The Federal Clean Air Act Does No t Expressly Preempt Ohio’s VehicleEmissions Anti-Tampering Law and Preclude the Attorney General’s Claims {¶ 16} When it comes to preemption, S ection 209 of the federal Clean A ir Act expressly provides that “[n]o State or any political subdiv ision thereof shall adopt or attempt to enforce any standard relating to the contro l of emissions from
new motor vehicles or new motor vehicle engines subject to this part.” 42 U.S.C. 7543(a). {¶ 17} Volkswagen contends that the Ohio statute at issue here, R.C. 3704.16(C)(3), is expressly preempted by 42 U.S.C. 7543(a) and that the attorney general’s claims are precluded as a result. Specifically, Volk swagen asserts that by prohibiting states from adopting or enforcing standards relatin g to emissions from new motor vehicles and new motor-vehicle engines, Congress has expresslyJanuary Term, 2021

7 precluded states from regulating anything relating to a vehicle ’s emissions-control system in any way, including post-sale tampering by the manufac turer. We disagree. {¶ 18} Congress has told us exactly what it meant to include within th e scope of the Clean Air Act’s exp ress-preemption provision in 42 U.S.C. 7543(a): “new motor vehicles” and “new motor vehicle engines.” It has a lso defined both
of those terms. {¶ 19} A “new motor vehicle” is defined as “a motor vehicle the equita ble or legal title to which has never been transferred to an ultima te purchaser.” 42 U.S.C. 7550(3). A “new motor vehicle engine” is defined simila rly as “an engine in a new motor vehicle or a motor vehicle engine the equitable or legal title to which
has never been transferre d to the ultimate purchaser.” Id. {¶ 20} Congress has also helpfully defined the term “ultimate purchase r,” as it is used in 42 U.S.C. 7550(3), as “the first person who in good faith purchases such new motor vehicle or new engine for purposes other than re sale.” 42 U.S.C. 7550(5). {¶ 21} Taken together, the plain text of the applicable statutes indic ates that after a new motor vehicle or new motor-vehicle engine is first sold, the expresspreemption clause in 42 U.S.C. 7543(a) no longer applies. In re Volkswagen “Clean Diesel” Marketing, Sales Pr actices, & Prods. Liab. Litigation (“ In re Volkswagen ”), 959 F.3d 1201, 1216 (9th Cir.2020). Put differently, the C lean Air Act expressly preempts only state and local laws regulating or setting vehicleemissions standards for new motor vehicles and new motor-vehicle engines. See 42 U.S.C. 7543(a). {¶ 22} In this case, the relevant Ohio statute, R.C. 3704.16(C)(3), pr ovides that “[n]o person shall knowingl y * * * [t]amper with any emiss ion control system
installed on or in a motor vehicl e after sale, lease, or rental and delivery of the vehicle to the ultimate purchas er, lessee, or renter.”S UPREME C OURT OF O HIO

8 {¶ 23} Notably, R.C. 3704.16(C)(3) does not create or adopt any emissi onscontrol standards and does not a pply to new motor vehicles or n ew motor-vehicle engines. Instead, it applies onl y to conduct (tampering) that takes place after a vehicle has reached its “ultima te purchaser, lessee, or renter. ” Consequently, R.C. 3704.16(C)(3) does not fall within t he scope of the federal Cle an Air Act’s expresspreemption provision. {¶ 24} In an attempt to get around the plain text of these laws and to avoid
the obvious conclusion that the fed eral Clean Air Act does not expressly preempt R.C. 3704.16(C)(3) and preclude an ti-tampering claims under Ohi o’s Air Pollution Control Act, Volkswagen calls our attention to the decisions in Allway Taxi, Inc. v.
New York , 340 F.Supp. 1120 (S.D.N.Y.1972), and Engine Mfrs. Assn. v. S. Coast Air Quality Mgt. Dist. , 541 U.S. 246, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004).
Neither Allway Taxi nor Engine Mfrs. Assn. , however, supports Volkswagen’s arguments or requires a differe nt conclusion regarding the appl icability of the express-preemption provision in Section 209 of the Clean Air Ac t, 42 U.S.C. 7543(a). {¶ 25} To begin, the federal district court in Allway Taxi upheld a local ordinance that required taxi cab s operating in New York City to be equipped with emissions-control devices. 340 F.Supp. at 1122, 1124. In doin g so, that court specifically stated that the definition of “new motor vehicles” provided in the Clean Air Act reveals a clear congre ssional intent to “preclude state s and localities from setting their own exhaust emission control standards only with respect to the
manufacture and distribution of new automobiles .” (Emphasis added.) Id. at 1124. In other words, the Clean Air Act prohibits states and local go vernments from “setting standards governing emission control devices before the initial sale or registration of an autom obile.” (Emphasis added.) Id. So, although the Allway
Taxi court cautioned that its deci sion should not be read to sancti on the imposition
of “emission control standards th e moment after a new car is bo ught andJanuary Term, 2021

9 registered,” id. , it nonetheless read the Clean Air Act’s express-preemption provision as drawing a distincti on between pre- and post-sale e missions regulations. {¶ 26} Next, nothing in the United States Supreme Court’s decision in Engine Mfrs. Assn . calls into question this pre- and post-sale distinction. In fact, in determining whether the Clean Air Act preempted rules regulatin g the types of commercial vehicles that could be purchased or leased within a particular region in
California based on different e missions criteria, the court wa s careful to note that its decision did not answer whether 42 U.S.C. 7543(a) also pree mpts rules that apply “beyond the purchase of new vehicles .” (Emphasis added.) Engine Mfrs.
Assn . at 259. Thus, Engine Mfrs. Assn . does not help this court to decide this particular case, which involves state-law claims under a statut e governing post-sale
conduct and used vehicles. {¶ 27} Accordingly, we hold that Sec tion 209 of the federal Clean Air Act, 42 U.S.C. 7543(a), does not expressly preempt R.C. 3704.16(C)(3 ) and preclude the attorney general’s anti-tampering claims.
2. The Federal Clean Air Act Does No t Impliedly Preempt Ohio’s VehicleEmissions Anti-Tampering Law and Preclude the Attorney General’s Claims {¶ 28} In addition to its arguments regarding express preemption, Volkswagen also argues that claims brought under R.C. 3704.16(C )(3) are impliedly preempted by the Clean Air Act. According to Volkswa gen, 42 U.S.C. 7543(a) impliedly preempts Ohio law because R.C. 3704.16(C)(3) conflicts with and stands as an obstacle to the federal government’s ability t o ensure continued compliance with its vehicle-emissions standards after a new mot or vehicle or new motor-vehicle engine is sold and interferes with the federal EP A’s ability to bring
and resolve enforcement actions . As with our conclusion regard ing its expresspreemption arguments, we find the se arguments unpersuasive.S UPREME C OURT OF O HIO

10 {¶ 29} Again, arguments calling for a finding of implied preemption, “ like all preemption arguments, must be grounded ‘in the text and str ucture of the statute
at issue.’ ” Garcia , ___ U.S. at ___, 140 S.Ct. at 804, 206 L.Ed.2d 146, quoting CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). It is therefore not enough to claim that a state l aw is impliedly preempted by simply ascribing “u nenacted purposes and objective s to a federal
statute.” Virginia Uranium, Inc. v. Warren , ___ U.S. ___, 139 S.Ct. 1894, 1907, 204 L.Ed.2d 377 (2020). Instead, an actual conflict between the state and federal law is required. Geier v. Am. Honda Motor Co., Inc. , 529 U.S. 861, 884, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), citing English , 496 U.S. at 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65. For Volkswagen, the lack of an actual conflict is the problem with its argument here. {¶ 30} First, although it is true that the Clean Air Act contains prov isions that apply post-sale and provide t he federal government with to ols to ensure continued compliance after a new motor vehicle or new motor-veh icle engine is sold, Ohio’s anti-tampering law does not stand as an obstacle t o the federal scheme or make it impossible to c omply with that scheme. {¶ 31} Indeed, Ohio’s law specifically makes it possible to comply wit h it and the federal scheme by stating that it is not a violation of R.C. 3704.16(C)(3) if the conduct in question is “taken for the purpose of repair or replacement of the emission control system or is a necessary and temporary procedu re to repair or replace any other item on the m otor vehicle and the action resu lts in the system’s compliance with the ‘Clean A ir Act Amendments.’ ” R.C. 3704.16 (E)(1). {¶ 32} Importantly, that means that Ohi o’s law does not conflict with the federal vehicle-warranty statute, 42 U.S.C. 7541(a)(1), federal vehicle-recall procedures, 42 U.S.C. 7541(c)(1), or federal useful-life requir ements, 42 U.S.C. 7521(a)(1) and (d). It also means that Volkswagen’s fears that it will be punishedJanuary Term, 2021

11 for actions taken in response to EPA guidelines or for modifica tions approved by
the EPA are unfounded. {¶ 33} The bottom line here is that as long as Volkswagen complies wit h, rather than circumvents, federal law it will have nothing to wo rry about in Ohio regarding actions brought under R.C. 3704.16(C)(3). By definit ion, under these circumstances, there is no conf lict between the relevant federa l and state statutes or any obstacle to Congress’s objectives. {¶ 34} We also disagree with Volkswagen that there is a conflict betwe en federal and Ohio law merely because the Clean Air Act also proh ibits emissionscontrol tampering, see 42 U.S.C. 7522(a)(3)(A), and punishes that conduct, see 42 U.S.C 7524(a). To begin, the fac t that there is some overlap b etween the state and federal provisions does not autom atically indicate that the app licable state law is impliedly preempted. Garcia , ___ U.S. at ___, 140 S.Ct. at 806-807, 206 L.Ed.2d 146. Likewise, it is no problem for preemption purposes that e missions-control tampering is punished under both Ohio and federal law. As a ma tter of fact, it has long been settled that a state government may punish conduct th at the federal government also punishes. California v. Zook , 336 U.S. 725, 731, 69 S.Ct. 841, 93 L.Ed. 1005 (1949), quoting United States v. Marigold , 50 U.S. 560, 569, 13 L.Ed. 257 (1850) (“ ‘the same act might, as to its character and tend encies, and the consequences it involved, constitu te an offence against both th e State and Federal governments, and might draw to its commission the penalties den ounced by either, as appropriate to its character in reference to each’ ”). {¶ 35} Moreover, and perhaps most significantly, the Clean Air Act doe s not suggest that Congress intended to shield vehicle manufactur ers from state-law emissions-control-tampering liability. In re Volkswagen , 959 F.3d at 1223. Certainly, if Congress had wished to preclude states from punis hing companies or persons for emissions-control tam pering, it could have said so. After all, as the Ninth Circuit pointed out in In re Volkswagen , a number of states had laws on theirS UPREME C OURT OF O HIO

12 books prohibiting tampering with emissions-control systems in m otor vehicles during the period in which Congress amended the Clean Air Act, id. at 1219-1220, and Congress did not make “any changes to the preservation of s tate authority,” id. at 1220. Because we can presume that Congress was aware of tho se state laws when it amended the Clean Air Act, see Goodyear Atomic Corp. v. Miller , 486 U.S. 174, 184-185, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988), its silen ce on the issue is “ ‘powerful evidence that Congress did not intend’ to preempt l ocal anti-tampering laws,” In re Volkswagen at 1220, quoting Wyeth v. Levine , 555 U.S. 555, 575, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). {¶ 36} Finally, we reject Volkswagen’ s argument that the potential imposition of state-law penaltie s under R.C. 3704.06 makes it i mpossible for the federal EPA to administer its vehicle-emissions program or inte rferes with the federal EPA’s ability to resolve enforcement actions. {¶ 37} First of all, it is not impossible for a violator to pay federa l penalties and state-law penalties relating to the same conduct, so exposu re to liability at the state level does not necessarily frustrate the purpose of the f ederal scheme. See Silkwood v. Kerr-McGee Corp. , 464 U.S. 238, 257, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). The fact that such pena lties might be considerable whe n aggregated, as Volkswagen contends, does not change that conclusion. California v. ARC Am. Corp. , 490 U.S. 93, 105, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (“Ord inarily, state causes of action are not pre-emp ted solely because they impose liability over and
above that authorize d by federal law”). {¶ 38} Additionally, there is no evide nce that the potential for liabi lity under Ohio’s anti-tampering law actually frustrates or interfer es with the federal government’s interests in any way. In fact, despite the likelih ood of subsequent actions by states and local govern ments here, the federal EPA w as tellingly able to resolve its case against Volkswagen. The mere possibility that future enforcement actions might be slightly more difficult because of a defendant ’s potential exposureJanuary Term, 2021

13 to dual liability does not provide a basis for this court to ho ld that Ohio’s antitampering law is preempted and that the attorney general’s clai ms here are precluded. Garcia , ___ U.S. at ___, 140 S.Ct. at 807, 206 L.Ed.2d 146, quoting United States Constitution, Article VI, cl. 2 (“The Supremacy C lause gives priority to ‘the Laws of the United States,’ ” not the “enforcement prio rities or preferences of federal officers”). {¶ 39} Since “as in any field of statutory interpretation, it is our d uty to respect not only what Congress wrote but, as importantly, what it didn’t write,” Virginia Uranium , ___ U.S. at ___, 139 S.Ct. at 1900, 204 L.Ed.2d 377, we canno t ignore these realities and manufacture a conflict that has no b asis in the text and structure of the applicable state and federal statutes just bec ause it would be advantageous for a particular par ty. We therefore conclude tha t Ohio’s antitampering law, R.C. 3704.16(C)(3), and the attorney general’s c laims under that provision are not impliedly preemp ted by the federal Clean Air Act.
III. CONCLUSION {¶ 40} For the reasons stated above, we hold that the federal Clean Ai r Act neither expressly nor impliedly preempts R.C. 3704.16(C)(3) or precludes an antitampering claim under Ohio’s Air Pollution Control Act for a ma nufacturer’s postsale tampering with a vehicle ’s emissions-control system. Acco rdingly, we affirm the judgment of the Tenth D istrict Court of Appeals. Judgment affirmed.
D E W INE , S TEWART , and D ELANEY , JJ., concur.
O’C ONNOR , C.J., and K ENNEDY , J., concur in judgment only.
D ONNELLY , J., dissents, with an opinion.
P ATRICIA A. D ELANEY , J., of the Fifth District Co urt of Appeals, sitting for
B RUNNER , J.

_________________ D ONNELLY , J., dissenting.S UPREME C OURT OF O HIO

14 {¶ 41} I respectfully dissent from the majority’s holding that the fed eral Clean Air Act, 42 U.S.C. 7401 et seq., does not preempt the ant itampering claim brought by appellee, the Ohio Attorney General, pursuant to Ohi o’s Air Pollution Control Act, R.C. 3704.01 et seq. I would hold that appellant Volkswagen Aktiengesellschaft, d.b.a. Volksw agen Group and/or Volkswagen A G (“Volkswagen”), has met its burde n of showing that the state-la w claim is impliedly preempted by federal law. {¶ 42} Generally, there are two ways in which federal law may impliedl y preempt state law: (1) the federal law is so comprehensive in s cope that it occupies the entire field of the regulate d activity (“field preemption”) , or (2) the federal law and the state law are actually in conflict with each other (“co nflict preemption”). Norfolk S. Ry. Co. v. Bogle , 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 7. Because the parties here have framed their arguments arou nd conflict preemption rather than field pr eemption as a distinct matter, I will focus on the conflict-preemption aspect of the preemption doctrine. . {¶ 43} Within the category of conflict preemption there are two subcategories: (1) “impossibilit y preemption,” which applies wh en it is impossible to comply with both the state law and the federal law, and (2) “obstacle preemption,” which applies when t he “state law ‘stands as an ob stacle to the accomplishment and execution of the full purposes and objective s of Congress.’ ” English v. Gen. Elec. Co. , 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990), quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Regarding impossibility preemption, given th at the attorney general is seeking to penalize Volkswagen for its fraud against the United States Environmental Protection Agency (“EPA”) relating to motor vehic les that were certified by the EPA, motor-vehic le-emissions standards that we re set by the EPA, and actions monitored by the EPA, and for violations that have already been penalized by the EPA, it is read ily apparent that it was possib le for Volkswagen toJanuary Term, 2021

15 have complied with both the Ohio and federal laws that prohibit tampering with motor-vehicle-emissions systems. Thus, obstacle preemption is the only type of conflict preemption that mig ht apply in this case. {¶ 44} For Volkswagen’s violations of Title II of the federal Clean Ai r Act, which spanned about a decade and affected motor vehicles throug hout the United States, the EPA carefully crafted a multibillion-dollar penalty that balanced a variety of financial and environmental factors pursuant to 42 U .S.C. 7524. In my view, the attorney general’s decision to seek an additional jud gment that could total more than $1 trillion involves nothing more than the attorney g eneral’s disagreement with the penalty that the federal government caref ully crafted. In this immediate sense, I believe that there is a clear conflict betwe en the federal and state objectives. And when considering the possibility of similar la wsuits from other states and municipalities across the United States, a broader c onflict is apparent;
such an action threatens to unde rmine the enforcement power of the EPA and thereby the efficacy of the entire federal scheme. Because the attorney general’s antitampering claims stand as an obstacle to the execution of t he full purposes of Congress in the Clean Air Act, t hey are preempted by federal la w. {¶ 45} The EPA plays a central role in the Clean Air Act, and its enforcement and penalty powers are crucial to the effectiveness of the federal law. In Title II of the Clean Air Act, Congress directs the EPA to “ prescribe * * * standards applicable to the emission of any air pollutant from any class or classes
of new motor vehicles or new mot or vehicle engines.” 42 U.S.C. 7521(a)(l). In order for it to be able to follow that mandate, the EPA is empo wered to set
emissions standards for motor ve hicles, 42 U.S.C. 7521(a)(l) an d (3), establish emissions-control technology requirements, e.g. , 42 U.S.C. 7521(a)(6), and regulate the use of emissions-c ontrol devices, 42 U.S.C. 7521(a )(4)(A). These exclusively federal standards apply throughout a vehicle’s “use ful life,” 42 U.S.C.S UPREME C OURT OF O HIO

16 7521(a)(1), and the EPA is authorized to monitor vehicles and t heir manufacturers throughout that time, 42 U.S.C. 7541 and 7542. {¶ 46} In order for it to enforce the s tandards and regulations, the E PA is empowered by the Clean Air Act to conduct testing to ensure tha t new motor vehicles comply with the federal law as a prerequisite to certi fication and to refuse to certify vehicles that do not m eet the requirements. 42 U.S. C. 7521(m); 42 U.S.C. 7525. Even when a vehicle is no longer considered new under th e Clean Air Act, the EPA requires the manufacturer to report any emissions-relat ed defect that
affects 25 or more of the vehicle s of the same model year, 40 C .F.R. 85.1903, including defects in “software * * * which must function proper ly to ensure continued compliance with emi ssion standards,” 40 C.F.R. 85.190 2(b)(2). The EPA requires manufacturers to tes t a portion of the in-use vehi cles that they manufactured, 40 C.F.R. 86.1845-04 and 86.1827-01, and if the v ehicles fail those tests then the EPA may require the vehicles to be recalled, 42 U.S.C. 7541(c)(1). The EPA also has the power to bring civil enforcement actions a gainst manufacturers for their violations of the federal law, 42 U.S.C . 7523 through 7525, including violations of the federal statute prohibiting tamperi ng with a motor vehicle’s emissions system either before or after the sale of the vehicle, 42 U.S.C. 7522(a)(3)(A). {¶ 47} The EPA’s central enforcement mechanism is its power to impose civil penalties pursuant to 42 U. S.C. 7524. The EPA may begin the penalty process either by filing suit in a federal court or by imposing an admi nistrative penalty that may later be subject to judicial review. 42 U.S.C. 7524(b) and (c). Through either method, the goal is to determine an appropriate penalty amount by balancing various factors such as “the gra vity of the violation, the econ omic benefit or savings (if any) resulting from the viol ation, the size of the violator ’s business, the violator’s history of compliance * * *, action taken to remedy the violati on, the effect of the penalty on the violator’s ability to continue in business, and such other matters asJanuary Term, 2021

17 justice may require.” 42 U.S.C. 7524(b) and (c)(2). It is in that method of enforcing the Clean Air Act and, particular ly in its requirements for det ermining an appropriate penalty, that the c onflict between the federal and Ohio laws is most apparent. {¶ 48} In crafting an appropriate penalty for a violation of Title II of the Clean Air Act, the EPA’s goal is to adequately deter future vio lations. But it must also balance the need for deterrence with factors such as the p otential for the penalty to cause the manufacturer to go out of business, the need to no t create precedent that adversely affects the EPA’s ability to enforce the law, an d any relevant “competing public interest consid erations.” United States Envi ronmental Protection Agency, Clean Air Act Title II Vehicle & Engine Civi l Penalty Policy, at 18-19, available at https:// www.epa.gov/sites/production/fil es/2021-
01/documents/caatitleiivehicleen ginepenaltypolicy011821.pdf (ac cessed June 9, 2021) [https://perma.cc/95DE-8JMB]

. Imposing a penalty so steep that it causes a manufacturer to go out of business might have the immediate neg ative effect of rendering the manufacturer unable to pay any of its penalties a nd a wider negative effect of wiping out a large swath of jobs from the United Stat es automotive industry and making vehicles less affordable for United States citizens. Such effects would certainly go again st the public’s best interests. {¶ 49} Moreover, if states and municipalities are permitted to sue mot orvehicle manufacturers based on admissions made when settling ci vil actions with the EPA, manufacturers will be deterred from making such admiss ions. The efficacy of the EPA’s rulemaking and enforcement powers would b e severely reduced if manufacturers were to be disincentivized from cooper ating with the EPA and other federal gove rnmental entities. {¶ 50} Following Volkswagen’s cooperati on with the federal government, it entered into a plea agreement and consent decrees with the E PA in 2017, which required Volkswagen “to pay $4.3 billion in civil and criminal penalties, to investS UPREME C OURT OF O HIO

18 $2.0 billion in Zero Emission Vehicle technology, to recall and /or repair the affected vehicles, and to contribute $2.925 billion to an emiss ions mitigation trust.” In re Volkswagen “Clean Diesel” Mar keting, Sales Practices, & Prods. Liab. Litigation , 264 F.Supp.3d 1040, 1044 (N.D.Cal.2017). Of the $2.925 billi on that Volkswagen paid into the emissions-mitigation trust, over $75 m illion was allocated to the state of Ohio. The fact that the EPA was empo wered by Congress through the Clean Air Act to reach such a large-scale settlemen t with Volkswagen regarding its nationwide misconduc t—and the fact that the feder al law obligates the EPA to craft a penalty that thoughtfully balances a multitude o f competing
interests—indicates to me that t he attorney general’s seeking a potential additional $1 trillion penalty pursuant to Ohio’s Air Pollution Control Ac t, R.C. 3704.01 et seq., for a local portion of tha t same misconduc t conflicts bot h with the EPA’s immediate authority and the long er-term goals underlying the fe deral law. {¶ 51} Courts in Alabama, Minnesota, and Tennessee have concluded that similar antitampering claims filed in their respective states c onflicted with the Clean Air Act, because the cla ims stood as an obstacle to the E PA’s effective execution of the purposes and objectives of the Clean Air Act. See State ex rel. Slatery v. Volkswage n Aktiengesellschaft , Tenn.App. No. M2018-00791-COA-R9- CV, 2019 WL 1220836, *13 (Mar. 13, 2019); State of Alabama v. Volkswagen AG , 279 So.3d 1109, 1128-1129 (Ala.2018) (“ Alabama ”); State by Swanson v. Volkswagen Aktie ngesellschaft , Minn.App. No. A18-0544, 2018 WL 6273103, *6- 9 (Dec. 3, 2018). I recognize that one federal circuit court o f appeals has come to the opposite conclusion. See In re Volkswagen “Clean Diesel” Marketing, Sales Practices, & Prods. Liab. Litigation (“ In re Volkswagen ”), 959 F.3d 1201 (9th Cir.2020). But this court is not required to follow those ruli ngs, including any ruling of a federal circuit court. See State v. Burnett , 93 Ohio St.3d 419, 424, 755 N.E.2d 857 (2001). We are free to determine which ruling is be tter-reasoned andJanuary Term, 2021

19 more persuasive, and I find the decisions from the courts in Al abama, Minnesota, and Tennessee more compelling. {¶ 52} I disagree with the view of the United States Court of Appeals for the Ninth Circuit, adopted by the majority here, that any confl ict between the
federal and state laws is rendere d irrelevant by the fact that it is perfectly permissible in other circumstan ces for the same conduct to be p unished by both the state and federal governments. In re Volkswagen at 1224-1225; see also majority opinion at ¶ 34-35, citing California v. Zook , 336 U.S. 725, 731, 69 S.Ct. 841, 93 L.Ed. 1005 (1949), and United States v. Marigold , 50 U.S. 560, 569, 13 L.Ed. 257 (1850). In Zook and Marigold , the United States Supreme Court rejected the notion that federal preemption of state law is implicated simply when the federal and state laws prohibit the same conduct a nd create the possibility of “d ouble punishment.”
Zook at 737 (regarding state and federal prosecutions for selling tr ansportation of persons without an Interstate Commerce Commission permit); Marigold at 568- 569 (regarding state and federal prosecutions for counterfeitin g). But the concern here does not implicate the mere possibility of double punishme nt; the concern is that punishment by the state will undermine the ability of the federal government to effectively enforce its environmental laws. In Marigold , the state criminal prosecution did not undermine any attempt by the federal govern ment to negotiate
with counterfeiters across the nation to reach a resolution tha t adequately penalized
the counterfeiters but that s till took into account the public’ s interest in not crippling the entire counterfeiting industry; the prosecution simply soug ht to punish discrete conduct that was also punishable by federal law. The context o f Marigold and Zook render the court’s holdings in t hose cases inapplicable to the case at hand. {¶ 53} The decisions by the courts in Alabama, Minnesota, and Tennesse e more persuasively reason that st ate emissions-tampering lawsuit s (like that at issue here) conflict with the federal Clean Air Act, because the pena lties sought in such lawsuits would upset the balance that the EPA is both empowered and obligated toS UPREME C OURT OF O HIO

20 achieve when penalizing manufactu rers under the federal law and undermine the EPA’s ability to achieve such a balance in the future. See Slatery at *13; Alabama at 1128-1129; Swanson at *8. Rather than having only the effect of exacting a double punishment against Volkswagen, the potential state sanct ions here are “at odds with achievement of the federal decision about the right d egree of pressure to employ,” and the inconsistency of the potential sanctions “unde rmines the congressional calibration of force,” Crosby v. Natl. Foreign Trade Council , 530 U.S. 363, 380, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000); see also Alabama at 1126;
Swanson at *8. {¶ 54} The regulation of motor-vehicle emissions reflected in Title II of the Clean Air Act has been “a principally federal project,” and the exclusive federal regulation of motor-vehicle emissions is necessary in part beca use “the possibility of 50 different state regulatory regimes ‘raise[s] the spectre of an anarchic patchwork of federal and state regulatory programs, a prospect which threaten[s] to create nightmares for the manufacturers.’ ” Engine Mfrs. Assn. v. United States Environmental Protection Agency , 88 F.3d 1075, 1079 (D.C.Cir.1996), quoting Motor & Equip. Mfrs. Assn., Inc. v. Environmental Protection Agency , 627 F.2d 1095, 1109 (D.C.Cir.1979). Allowing states like Ohio to indivi dually regulate and penalize manufacturers for viola tions relating to motor-vehicle emissions undermines the EPA’s comprehensi ve and carefully balanced enfor cement power and creates the anarchic patchwork of federal and state regulat ory programs that the Clean Air Act is specifically designed to prevent. Accordi ngly, because the antitampering claims brought by the attorney general pursuant t o R.C. 3704.01 et seq. undermine the purpose and efficacy of the federal Clean Ai r Act, they are preempted by federal law. {¶ 55} Because I would hold that the attorney general’s state-law clai ms are impliedly preempted by federal law and would reverse the judgme nt of the Tenth
District Court of A ppeals, I dissent.January Term, 2021

21 _________________ David Yost, Attorney General, Benjamin M. Flowers, Solicitor G eneral, Michael J. Hendershot, Chief De puty Solicitor General, and Aaro n S. Farmer and Karia A. Ruffin, Assistant Atto rneys General, for appellee. Reminger Co., L.P.A., Hugh J. Bo de, and Jackie M. Jewell; and S ullivan & Cromwell, L.L.P., Robert J. Giuffra Jr., David M.J. Rein, Matth ew A. Schwartz, and Judson O. Littleton, for appellants Volkswagen Aktiengesell schaft, d.b.a. Volkswagen Group and/or Volkswagen AG; Audi AG; Volkswagen Grou p of America, Inc., d.b.a. Volkswagen of America, Inc., or Audi of A merica, Inc.; Volkswagen of America, Inc.; and Audi of America, L.L.C. Porter, Wright, Morris & Arthur, L.L.P., L. Bradford Hughes, a nd Elizabeth L. Moyo; and King & Spalding, L.L.P., and Joseph Eisert, for ap pellants Dr. Ing. h.c. F. Porsche AG, d.b.a. Porsche AG; and Porsche Cars North A merica, Inc. Arnold & Porter Kaye Scholer, L.L.P., Jayce Born, Jonathan S. M artel, and S. Zachary Fayne; and Kevin D. Shimp, urging reversal for amici curiae, United States Chamber of Commerce, Ohio Chamber of Commerce, and Allia nce for
Automotive Innovation.

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