ORAL ARGUMENT NOT YET SCHEDULED 

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 14-1192 

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC.

PETITIONER,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT.

 

ON PETITION FOR REVIEW OF FINAL AGENCY ACTION OF THE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 

 

FINAL BRIEF FOR RESPONDENT

 

 JOHN C. CRUDEN

ASSISTANT ATTORNEY GENERAL

ENVIRONMENT AND NATURAL 

RESOURCES DIVISION

MICHELE L. WALTER

 ENVIRONMENTAL DEFENSE SECTION

 U.S. DEPARTMENT OF JUSTICE

P.O. BOX 7611

WASHINGTON, D.C. 20044

TEL: (202) 514-2795

 FAX: (202) 514-8865

Michele.Walter@usdoj.gov

USCA Case #14-1192 Document #1557976 Filed: 06/17/2015 Page 1 of 63
OF COUNSEL

Winifred Okoye

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-5446

JUNE 16, 2015

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RESPONDENT’S CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), counsel for Respondent United States 

Environmental Protection Agency, submits this certificate as to parties, rulings, 

and related cases. 

A. Parties and Amici

i. Parties, Intervenors, and Amici Who Appeared in the 

District Court

This case is a petition for review of final agency action, not an appeal from 

the ruling of a district court. 

ii. Parties to These Cases

Petitioner and Respondent appearing in this Court are listed in the Petitioner 

OOIDA’s Opening Brief. In addition, Intervenor-Respondent California Air 

Resources Board is appearing in this case. 

B. Rulings Under Review

The action under review is EPA’s final action entitled “California State 

Motor Vehicle Pollution Control Standards; Heavy-Duty Tractor-Trailer 

Greenhouse Gas Regulations; Notice of Decision.” 79 Fed. Reg. 46,256 (Aug. 7, 

2014). 

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C. Related Cases

This case was not previously before this Court or any other court. The 

undersigned counsel is not aware of any related case currently pending in this or 

any other court. 

Respectfully submitted,

JOHN C. CRUDEN

Assistant Attorney General

/s/ Michele L. Walter

MICHELE L. WALTER, Attorney

United States Department of Justice

Environment & Natural Resources 

Division 

Environmental Defense Section 

P.O. Box 7611

Washington, D.C. 20044

Tel: (202) 514-2795 

Fax: (202) 514-8865

Michele.Walter@usdoj.gov 

OF COUNSEL

Winifred Okoye

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-5446

June 16, 2015

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................................v

GLOSSARY..............................................................................................................vi

JURISDICTIONAL STATEMENT ..........................................................................1

STATUTES AND REGULATIONS.........................................................................2

ISSUES PRESENTED...............................................................................................2

 

STATEMENT OF THE CASE..................................................................................3

I. CLEAN AIR ACT BACKGROUND..............................................................3

II. FACTUAL BACKGROUND..........................................................................7

A. The Board’s Regulations.......................................................................7

B. EPA’s Waiver........................................................................................9

SUMMARY OF ARGUMENT...............................................................................15

STANDARD OF REVIEW.....................................................................................21

ARGUMENT...........................................................................................................22 

I. THE COURT SHOULD DISMISS THE PETITION ON 

PRUDENTIAL GROUNDS BECAUSE THE ASSOCIATION’S 

DORMANT COMMERCE CLAUSE CHALLENGE IS MORE 

APPROPRIATELY BROUGHT IN A SUIT AGAINST THE 

BOARD IN A CALIFORNIA STATE OR FEDERAL DISTRICT 

COURT..........................................................................................................22

II. THE ASSOCIATION CANNOT BRING THIS DORMANT 

COMMERCE CLAUSE CHALLENGE TO CALIFORNIA’S 

REGULATIONS ...........................................................................................27

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A. Congress Can Provide That A State Action Should Be 

Immune From Attack Under The Dormant Commerce 

Clause ..................................................................................................28

B. The Legislative History And Text Of CAA Section 7543(b) 

Preclude The Association’s Dormant Commerce Clause 

Challenge To The Board’s Regulations..............................................30

III. EVEN IF THE COURT REACHES THE DORMANT CLAUSE 

CHALLENGE, THE ASSOCIATION’S CLAIM HAS NO MERIT...........39

CONCLUSION........................................................................................................49

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TABLE OF AUTHORITIES

CASES

*Am. Trucking Ass's, Inc. v. EPA,

600 F.3d 624 (D.C. Cir. 2010)....................................................... 5, 15, 17, 26, 30

Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520 (1959)....................................................................................... 48, 49

Catawba Cty v. EPA,

571 F.3d 20 (D.C. Cir. 2009)................................................................................35

Central Valley Chrysler-Jeep v. Witherspoon,

456 F. Supp. 2d 1160 (E.D. Cal. 2006) ................................................................35

Cooley v. Board of Wardens,

53 U.S. 299 (1851)................................................................................................28

*Engine Mfrs. Ass'n v. EPA,

88 F.3d 1075 (D.C. Cir. 1996)....................................................................... 4, 6, 7

Envt'l Tech. Council v. Sierra Club,

98 F.3d 774 (4th Cir. 1996) ............................................................................ 36, 37

*Ford Motor Co. v. EPA

606 F.2d 1293 (D.C. Cir. 1979)................................................................... 4, 5, 19

Hughes v. Oklahoma,

441 U.S. 322 (1979)..............................................................................................22

*Motor & Equip. Mfrs. Ass'n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979)......... 4-6, 10, 12, 15, 16, 18-21, 24, 25, 27, 30-33

*Motor & Equip. Mfrs. Ass'n v. Nichols,

142 F.3d 449 (D.C. Cir. 1998)................................................... 3, 4, 5, 6, 7, 18, 19

* Authorities chiefly relied upon are marked with an asterisk

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New England Power Co. v. New Hampshire,

455 U.S. 331 (1982)..............................................................................................38

*Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970)................................................................................. 20, 43, 44

Raymond Motor Transp. v. Rice,

434 U.S. 429 (1978)....................................................................................... 28, 47

*South-Central Timber Dev. v. Wunnicke,

467 U.S. 82 (1984)....................................................................... 28, 29, 30, 33, 36

Sporhase v. Nebraska,

458 U.S. 941 (1982)..............................................................................................37

*United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth.,

550 U.S. 330 (2007)..................................................................... 20, 39, 43, 45, 46

*Western & Southern Life Ins. Co. v. State Bd. of Equalization of California,

451 U.S. 648 (1981)................................................................................. 29, 34, 35

*White v. Massachusetts Council of Cont. Emp'rs Inc.,

460 U.S. 204 (1983)........................................................................... 18, 28, 29, 36

Wyoming v. Oklahoma,

502 U.S. 437 (1992)..............................................................................................22

CONSTITUTION

U.S. Const. art. I, § 8, cl. 3................................................................................ 18, 28

STATUTES

5 U.S.C. § 706..........................................................................................................21

5 U.S.C. § 706(2)(A)................................................................................................21

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5 U.S.C. § 706(2)(B)................................................................................................21

42 U.S.C. §§ 7401-7671q ..........................................................................................3

42 U.S.C. § 7504........................................................................................................3

42 U.S.C. § 7506........................................................................................................3

42 U.S.C. § 7507........................................................................................... 6, 34, 49

42 U.S.C. § 7511a(b)(4).............................................................................................3

42 U.S.C. § 7511(a)(2)(B) .........................................................................................3

42 U.S.C. § 7521(a) ................................................................................ 6, 11, 12, 34

42 U.S.C. § 7543............................................................................................... 18, 19

42 U.S.C. § 7543(a) ...............................................................................................3, 4

42 U.S.C. § 7543(b).................................................................... 2, 3, 7, 9, 15, 21, 34

42 U.S.C. § 7543(b)(1)...................................................................................... 1, 5, 6

42 U.S.C. § 7607(b)...................................................................................... 1, 22, 23

42 U.S.C. § 7607(b)(1)...............................................................................................1

Clean Air Act of 1965

Pub. L. No. 89-272, § 202, 79 Stat. 992 ..............................................................4, 31

FEDERAL REGISTERS

78 Fed. Reg. 51,724 ...................................................................................................9

79 Fed. Reg. 46,256 .......................................................................................... i, 1, 9

79 Fed. Reg. 46,257 ........................................................ 6, 7, 8, 9, 39, 40, 42, 43, 46

79 Fed. Reg. 46, 260 ................................................................................................10

79 Fed. Reg. 46, 261 ......................................................................................... 10, 11

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79 Fed. Reg. 46,262 .......................................................................................... 11, 12

79 Fed. Reg. 46,263 ........................................................................ 12, 13, 14, 44, 48

79 Fed. Reg. 46,264 ........................................................................ 14, 15, 24, 44, 48

79 Fed. Reg. 46,265 .......................................................................................... 17, 23

LEGISLATIVE HISTORY

H.R. Rep. No. 95-294, 301-02 (1977), reprinted in 1977 U.S.C.C.A.N. at 1380 ....4, 

32

STATE REGULATIONS

Cal. Code of Regs. tit. 17, § 95301(b).....................................................................40

Cal. Code of Regs. tit. 17, § 95301(c) .................................................................9, 40

Cal. Code of Regs. tit. 17, § 95302(a)(52)...............................................................41

Cal. Code of Regs. tit. 17, § 95302(14).....................................................................9

Cal. Code of Regs. tit. 17, § 95302(34)-(36).............................................................9

Cal. Code of Regs. tit. 17, § 95302(52).....................................................................9

Cal. Code of Regs. tit. 17, § 95302(54)-(55).............................................................9

Cal. Code of Regs. tit. 17, § 95305(a) .......................................................................9

Cal. Code of Regs. tit. 17, § 95305(b).......................................................................9

Cal. Code of Regs. tit. 17, § 95305(c) .......................................................................9

Cal. Code of Regs. tit. 17, § 95305(d).......................................................................9

MISCELLANEOUS

About SmartWay Transportation & Air Quality, US EPA,

http://epa.gov/smartway/about/index.htm (last updated March 5, 2015)..................9

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GLOSSARY

APA Administrative Procedure Act

CAA Clean Air Act

EPA Environmental Protection Agency

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JURISDICTIONAL STATEMENT

On August 7, 2014, the United States Environmental Protection Agency 

(“EPA” or “Agency”) issued a final agency action entitled “California State Motor 

Vehicle Pollution Control Standards; Heavy-Duty Tractor-Trailer Greenhouse Gas 

Regulations; Notice of Decision.” 79 Fed. Reg. 46,256 (Aug. 7, 2014) (“Waiver”)

[JA454], under the Clean Air Act (“CAA” or “Act”). EPA issued the Waiver 

under CAA Section 7543(b)(1), 42 U.S.C. § 7543(b)(1), to grant a waiver of 

preemption to the California Air Resources Board (“Board”) to enforce certain

provisions of California’s Heavy-Duty Tractor-Trailer Greenhouse Gas 

Regulations. Cal. Code Regs. tit. 17, §§ 95300-12. [ADD32-87]. The regulations

subject to the Waiver (“Regulations”) apply to new model year 2011 through 2013 

heavy-duty sleeper-cab tractors and to new 2011 and subsequent model year dryvan and refrigerated-van trailers that are pulled by such tractors on California 

highways. 

On October 3, 2014, Petitioner Owner-Operator Independent Drivers 

Association, Inc. (“Association”) timely filed its petition for review of EPA’s

Waiver. See 42 U.S.C. § 7607(b). Under CAA Section 7607(b), a petition for 

review challenging “any other final action” taken by EPA under the Act or any 

“nationally applicable regulations,” may be filed “only in the United States Court 

of Appeals for the District of Columbia.” Id. § 7607(b)(1). Thus, jurisdiction over 

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a petition to review EPA’s action in granting a waiver is appropriate in this Court; 

however, as discussed below, because this particular challenge focuses exclusively 

on the legality of California State regulations, and not on the substance of EPA’s 

Waiver action, it is more appropriately brought against the State of California in 

either a California state or federal district court. Therefore, this Court should 

dismiss the petition without prejudice on prudential grounds, and allow the 

Association to pursue relief directly against the Board in a more suitable forum. 

STATUTES AND REGULATIONS

All applicable statutory and regulatory materials are provided in 

Respondent’s Addendum to Opening Brief (“ADD”).

ISSUES PRESENTED 

1. Should the Court dismiss the petition on prudential grounds because 

the merits of the Association’s challenge are directed solely at the constitutionality 

of the Board’s Regulations (and not at the reasonableness of EPA’s Waiver) and, 

thus, are more appropriately suited to review in a California state or federal district 

court?

2. Can the Association seek a vacatur of EPA’s Waiver on the basis of 

the dormant Commerce Clause when Congress specifically authorized California’s 

adoption of motor vehicle emission standards under the Clean Air Act, 42 U.S.C. 

§ 7543(b), even if those standards interfere with interstate commerce? 

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3. Are the Board’s Regulations permissible under the dormant

Commerce Clause, where they are not discriminatory on their face and the benefits 

to California’s public health and welfare outweigh any burdens on interstate 

commerce? 

STATEMENT OF THE CASE

IV. CLEAN AIR ACT BACKGROUND

The Clean Air Act (“CAA” or “Act”), 42 U.S.C. §§ 7401-7671q, creates a 

comprehensive program for controlling and improving the nation’s air quality. 

One aspect of that comprehensive program is the control of motor vehicle 

emissions under Subchapter II, which “establishes a two-pronged federal-state 

approach . . . .” Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 452 (D.C. 

Cir. 1998) (“MEMA II”). Under the first prong, States regulate vehicles “after they 

have been purchased by consumers through inspection and maintenance 

programs.” Id. (citing 42 U.S.C. §§ 7504, 7506, 7511a(b)(4), (a)(2)(B)). Under 

the second prong, EPA has authority to establish nationally applicable emission 

standards for new motor vehicles and the States generally are preempted from 

adopting their own standards. 42 U.S.C. § 7543(a); see MEMA II, 142 F.3d at 452. 

CAA Section 7543(b), however, contains a provision allowing California to 

petition EPA for a waiver of federal preemption so that California can enforce its 

own motor vehicle emission standards. 42 U.S.C. § 7543(b); MEMA II, 142 F.3d 

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at 453. This exemption has a long and well-established history, which Congress 

enacted “to afford California the broadest possible discretion in selecting the best 

means to protect the health of its citizens and the public welfare.” Motor & Equip. 

Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1110 (D.C. Cir. 1979) (“MEMA I”) (citing 

H.R.Rep. No. 95-294 at 301-02 (1977), reprinted in 1977 U.S.C.C.A.N. at 1380).

Since 1963, California has been at the frontier of efforts to reduce air 

pollution through vehicle emission standards. See Engine Mfrs. Ass’n v. EPA, 88 

F.3d 1075, 1079 (D.C. Cir. 1979) (“Congress recognized that California was 

already the “lead[er] in the establishment of standards for regulation of automotive 

pollutant emissions” at a time when the federal government had yet to promulgate 

any regulations of its own.”); see also (2008 Initial Statement of Reasons at ES1) 

[JA40]. In 1965, Congress first authorized EPA to issue federal emission 

standards for motor vehicles. Ford Motor Co. v. EPA, 606 F.2d 1293, 1295 & n.10 

(D.C. Cir. 1979) (citing Pub. L. No. 89-272, 79 Stat. 992 (1965)). Two years later, 

realizing the possibility that automobile manufacturers could be subject to fifty 

different state standards, Congress issued CAA Section 7543(a) to preempt the 

States from adopting their own emission standards. 42 U.S.C. § 7543(a); Engine 

Mfrs., 88 F.3d at 1079. Concerned about the “spectre of an anarchic patchwork of 

federal and state regulatory programs, a prospect which threatened to create 

nightmares for the manufacturers[,] . . . Congress in 1967 expressed its intent to 

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occupy the regulatory role over emissions control to the exclusion of all the states 

all, that is, except California.” MEMA I, 627 F.2d at 1109. 

The preemption exemption for California in Section 7543(b) represents 

Congress’ recognition of California’s motor vehicle emission control efforts, the 

particularly difficult air pollution problems facing California, and the benefits to

the entire nation of allowing California to continue those efforts. See MEMA I, 

627 F.2d at 1111. Congress “intended the State to continue and expand its 

pioneering efforts at adopting and enforcing motor vehicle emission standards 

different from and in large measure more advanced than the corresponding federal 

program[.]” Id.; MEMA II, 142 F.3d at 453. Indeed, “Congress consciously chose 

to permit California to blaze its own trail with a minimum of federal oversight.” 

MEMA II, 142 F.3d at 463; Am. Trucking Ass’ns, Inc. v. EPA, 600 F.3d 624, 629 

(D.C. Cir. 2010) (same); Ford, 606 F.2d at 1297 (same). 

In developing its own motor vehicle emission standards, California must 

make a determination that its “standards will be, in the aggregate, at least as 

protective of public health and welfare as applicable Federal standards.” 42 U.S.C. 

§ 7543(b)(1). If California makes that determination, EPA “shall” issue a waiver 

of preemption, unless EPA makes one of three findings: 

(A) the determination of the State is arbitrary and capricious,

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(B) such State does not need such State standards to meet compelling 

and extraordinary conditions, or

(C) such State standards and accompanying enforcement procedures 

are not consistent with section 7521(a) of this title.

Id. § 7543(b)(1).1

 

EPA consistently has interpreted this waiver provision to provide EPA with 

a “narrow” review of California’s decision-making, 79 Fed. Reg. at 46,257

[JA455], and this Court has reinforced that narrow review standard. See MEMA I, 

627 F.2d at 1121. Indeed, California’s waiver determination is “presumed to 

satisfy the waiver requirements and . . . the burden of proving otherwise is on 

whoever attacks them.” Id. 

If EPA issues a waiver to California, other States then can adopt California’s 

standards. 42 U.S.C. § 7507. Those States that choose to adopt California’s 

standards for which EPA has granted a waiver may do so without any further 

authorization from EPA. Id. Thus, “new motor vehicles must be either federal 

cars designed to meet EPA’s standards or California cars designed to meet 

 

1CAA Section 7521(a), referenced in Section 7543(b)(1)(C), requires that 

regulations “shall take effect after such period as the Administrator finds necessary 

to permit the development and application of the relevant technology, giving 

appropriate consideration to considering the cost of compliance within such 

period.” 42 U.S.C. § 7521(a). 

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California’s standards.” MEMA II, 142 F.3d at 453 (internal quotation marks 

omitted) (citing Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1080 (D.C. Cir. 1996)).

V. FACTUAL BACKGROUND

C. The Board’s Regulations 

The California Global Warming Solutions Act of 2006 (Assembly Bill 32, 

Stats. 2006, chapter 488), directed the Board to take “discrete early action 

[greenhouse gas] emission reduction measures” to achieve cost-effective emission 

reductions. 79 Fed. Reg. 46,257 [JA455]. In response, California developed a 

suite of regulations that apply to new and in-use 53-foot or longer trailers and the 

new and in-use tractors that pull them. Cal. Code Regs. tit. 17 §§ 95300-12 

[ADD32-87]. The Board adopted that broader set of regulations on October 23, 

2009, but subsequently issued amendments to provide for compliance flexibility, 

which were adopted on October 26, 2011, and became operative on January 11, 

2012. Support Document at 4-7 [JA6-9]. That suite of regulations is “anticipated 

to reduce emissions of oxides of nitrogen (NOx) by 3.1 and 1 ton per day in 2014 

and 2020, respectively, which will help California in its efforts to attain the 

national and state ambient air quality standards for particulate matter and ozone.” 

Support Document at 1 [JA3]. 

On June 30, 2013, the Board submitted to EPA a waiver request under CAA 

Section 209(b), 42 U.S.C. § 7543(b). Support Document [JA3-30]. The Waiver 

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Request did not encompass the entire suite of regulations and was limited to new

(not in-use) model year 2011 through 2013 heavy-duty tractors with sleeper-cabs, 

and to new (not in-use) 2011 and subsequent model year dry-van and refrigeratedvan trailers that are 53-feet or longer and are pulled by such tractors

(“Regulations”). Support Document at 1-2, 8-9 [JA3-4, JA10-12]. These 

Regulations are a critical part of California’s broader set of regulations and both 

the tractor and trailer requirements cumulatively are projected to reduce 

greenhouse gas emissions in California by 2.346 million metric tons of carbon 

dioxide equivalent emissions between 2010 and 2020. Support Document at 2 

[JA4]. The California Global Warming Act of 2006 declares that “global warming 

poses a serious threat to the economic well-being, public health, natural resources, 

and the environment of California, and requires a comprehensive multi-year 

program to reduce California’s greenhouse gas (GHG) emissions to 1990 levels by 

2020.” Board Resolution 08-44 at 1, December 12, 2008 [JA130]. 

The reductions in these Regulations will be achieved by requiring, for 

example, the use of certain aerodynamic technologies and low-rolling resistance 

tires. 79 Fed. Reg. at 46,257 [JA455]. To that end, the regulations incorporate 

elements of EPA’s SmartWay Program, by requiring the covered heavy-duty 

vehicles to be SmartWay certified or use SmartWay verified aerodynamic 

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technologies or tires.2 Id. The Regulations apply to every covered tractor-trailer 

driven on California’s highways.3

 Importantly, these Regulations are a step toward 

addressing the significant air quality issues facing California. Board Dec. 12, 2013 

Response to Comment at 10 [JA440]. 

D. EPA’s Waiver 

On August 21, 2013, pursuant to CAA Section 7543(b), 42 U.S.C. 

§ 7543(b), EPA published a notice of opportunity for public hearing and comment 

on the Board’s Waiver Request. 78 Fed. Reg. 51,724 (Aug. 21, 2013) [JA1]. 

After consideration of public comments, EPA issued its Waiver decision on 

August 7, 2014. 79 Fed. Reg. 46,256 [JA454]. 

In granting the Waiver, EPA first determined under CAA Section 

7543(b)(1)(A), whether the Board was arbitrary and capricious in determining that 

 

2 EPA’s SmartWay Program is a “voluntary testing, verification, and designation 

program to help freight companies identify equipment, technologies and strategies 

that save fuel and lower emissions.” 79 Fed. Reg. at 46,257 n.7 (citing 

http://epa.gov/smartway/about/index.htm.) [JA455]. 

3 The Regulations exempt certain categories of tractor-trailers: (1) local-haul 

tractors and trailers, which are those that travel exclusively within a 100-mile 

radius of their local-haul base, 17 C.C.R. §§ 95302(34)-(36); (2) short-haul tractors 

and trailers, which are those that travel less than 50,000 miles per year (including 

both in-state and out-of-state miles), id. § 95302(52); (3) drayage tractors and 

trailers that operate through ports or intermodal railyards, id. § 95302(14); (4) 

storage tractors and trailers; id. §§ 95302(54)-(55); and (5) empty 53-foot and 

longer trailers that are pulled by heavy-duty tractors. Id. §§ 95301(c), 95305(a)-

(d).

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its Regulations will be, in the aggregate, at least as protective of public health and 

welfare as applicable Federal standards. 79 Fed. Reg. at 46,260 [JA458]. In 

making that protectiveness determination, the Board had noted that EPA had not 

issued regulations to control greenhouse gas emissions for these particular tractortrailers. Id. at 46,260, n.52-53 (citing Board Resolutions 08-44 [JA130-172] and 

10-11-3 [JA334-343]) [JA458]. Thus, the Board concluded that its Regulations, in 

the aggregate, were at least as protective of the public health and welfare as 

applicable Federal standards. 

EPA agreed. “[A] finding that California’s protectiveness determination is 

arbitrary and capricious must be based on clear and convincing evidence that 

California’s finding was unreasonable.” 79 Fed. Reg. at 42,261 [JA459]; see 

MEMA I, 627 F.2d at 1122. “Where, as here, there are no federal standards 

directly comparable to the specific California standards under review, the analysis 

then occurs against the backdrop of previous waivers, which have determined that 

the California program overall was at least as protective as the federal program.” 

79 Fed. Reg at 46,260 [JA458]. Thus, EPA found that the Regulations would not 

“diminish the protectiveness of the overall California program.” Id.; id. at 46,261 

(“California standards are most clearly ‘at least as protective’ when they are 

compared to the absence of federal emission standards.”) [JA459]. 

Next EPA considered the second criterion – whether California needed 

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“such . . . standards to meet compelling and extraordinary conditions.” 79 Fed. 

Reg. at 46,261 (quoting 42 U.S.C. § 7543(b)(1)(B)) [JA459]. In that regard, EPA 

(consistent with its past considerations of this criterion) considered “whether 

California needs its own mobile source pollution program (i.e., set of standards) for 

the relevant class or category of vehicles or engines to meet compelling and 

extraordinary conditions, and not whether the specific standards that are the subject 

of the waiver requests are necessary to meet such conditions.” 79 Fed. Reg. at 

46,261 [JA459]. Based on the Board’s findings concerning the continued climate 

conditions and vehicle growth in California, and the amount of nitrogen oxide and 

carbon dioxide reductions that the Board’s Regulations will achieve, EPA found

there was no “change in circumstances or evidence to suggest that the conditions 

that Congress identified as giving rise to serious air quality problems in California 

no longer exist.” Id. at 46,262 [JA460]; id. at 46,261 [JA459] (“no evidence 

submitted to indicate that California’s compelling and extraordinary conditions do 

not continue to exist.”); id. at 46,262 [JA460] (“In summary, EPA has not received 

any adverse comments suggesting that California no longer needs a separate motor 

vehicle emissions program to address the various conditions that led to serious and 

unique air pollution problems in California.”).

Finally, as to the third criterion under CAA Section 7543(b)(1)(C), EPA 

found that the Board’s Regulations are consistent with CAA Section 7521(a), 42 

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U.S.C. § 7521(a). Section 7521(a) requires that regulations “shall take effect” after 

a period of time “necessary to permit the development and application of the 

requisite technology, giving appropriate consideration to the costs of compliance 

within such time.” Id. This provision relates to the “timing of a particular 

emission control regulation rather than to its social implications.” MEMA I, 627 

F.2d at 1118. EPA consistently has stated that its determination as to whether the 

Board’s standards are consistent with Section 7521(a) “is limited to whether those 

opposed to the waiver have met their burden of establishing that California’s 

standards are technologically infeasible, or that California’s test procedures impose 

requirements inconsistent with the federal test procedure.” 79 Fed. Reg. at 46,262 

[JA460]. “Infeasibility is shown by demonstrating that there is inadequate lead 

time to permit the development of technology necessary to meet the . . . regulations 

that are subject to the waiver request, giving appropriate consideration to the cost 

of compliance within that time.” Id. at 46,262-63 [JA460-61]. Although EPA did 

not receive any comments claiming that the Board’s Regulations “were infeasible 

when reviewed purely as a matter of technology,” id. at 46,263 [JA461], the 

Association commented that the Regulations “impose large expenses on thousands 

of small and financially struggling carriers.” Id. In response, EPA explained that 

its “previous waiver decisions indicate that cost of compliance as it relates to lead 

time must be shown to be excessive in order to find that California’s standards are 

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inconsistent with [Section 7521(a)].” Id. On that note, the Association simply did 

“not submit sufficient evidence to meet the opponents’ burden of proof to show 

that the costs of compliance with the . . . Regulations are so excessive as to 

constitute technological infeasibility.” Id. 

Specifically, with respect to the cost of the Regulations for tractors, the 

Board “estimated the average incremental capital cost of compliance in 2008 to be 

$2,100 per tractor, which would be recovered within 1.0 to 1.5 years through fuel 

savings.” Id. (citing Support Document at 21, [JA23]). The Association did not 

submit any evidence contrary to those estimates. 79 Fed. Reg. at 46,263 [JA461]. 

For trailers, the Association simply disagreed with the Board’s cost 

estimates. The Board “calculated the average incremental cost of trailer 

compliance as $2,900 per trailer, plus an additional $125 annually for maintenance 

and reporting costs.” Id. (citing Support Document at 24-25 [JA26-27] and 2008 

Initial Statement of Reasons at 33-42, 60-62 [JA79-88, 106-08]). The costs would 

be recovered, i.e., have a “payback period,” on average, within eighteen months 

through fuel savings. 79 Fed. Reg. at 46,263 [JA461] (citing Support Document at 

25 [JA27] and 2008 Initial Statement of Reasons at 42 [JA88]). The Board later 

decreased those cost estimates to $1,250 per trailer, which would be recovered 

within eleven months. 79 Fed. Reg. at 46,263 [JA461] (citing American Trucking 

Association comments at 5 [JA411]). 

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The Association disagreed with these cost estimates and payback period, 

claiming that the cost per trailer would be from $7,520 - $9,325, and have a longer 

payback period. 79 Fed. Reg. at 46,263 [JA461]. EPA found that the Association 

failed to provide any evidence to support its higher cost estimates and, instead, 

simply had relied on an incorrect characterization of the Board’s cost estimates. 

Id. Once these mischaracterizations were corrected, the Association’s “cost figures 

are in relative agreement with [the Board’s] original cost projections (which [the 

Board] now estimates are even lower).” Id. Ultimately, EPA found no evidence 

that the Board’s estimated cost of compliance for trailers was excessive or 

infeasible. Id. 

The Association provided further comments claiming that the costs of the 

Regulations outweigh the emission benefits, particularly for trailers. Id. at 46,263-

64 [JA461-62]. The Board disputed these arguments, finding that there was no 

evidence to support the Association’s claims. Id. at 46,264 [JA462] (citing Board 

Response to Comments at 15-16 [JA445-46]). EPA noted that these types of costeffectiveness determinations are policy decisions on which “EPA has historically 

deferred to California. . . .” 79 Fed. Reg. at 46,264 [JA462]. Thus, because the 

evidence was “insufficient to show that the [Board’s Regulations] are 

technologically infeasible, considering costs of compliance . . .” the Regulations 

were not inconsistent with CAA Section 7521(a). Id. 

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EPA’s Waiver also discussed other issues, including the Association’s

comments that the Board’s Regulations were unconstitutional because they 

disproportionately and unfairly burdened out-of-state carriers. 79 Fed. Reg. at 

46,264 [JA462]. In addressing these comments, EPA noted that this Court 

previously concluded that “[t]he waiver proceeding produces a forum ill-suited to 

the resolution of constitutional claims.” Id. (quoting MEMA I, 627 F.2d at 1114-

20). Moreover, because Congress has not included constitutional concerns within 

the list of criteria in CAA Section 7543(b), EPA could not rely on such concerns to 

deny a waiver request. 79 Fed. Reg. at 46,264 [JA462]. For these reasons, EPA 

stated that “Constitutional challenges to [the Board’s] Regulation are more 

appropriately addressed by a legal challenge directly against the state.” Id. Thus, 

because the Board’s Regulations met all three criteria in Section 7543(b), EPA 

issued the Waiver. 

SUMMARY OF ARGUMENT

For over 40 years, EPA has issued waivers to California under CAA Section 

7543(b), 42 U.S.C. § 7543(b). Congress explicitly adopted an approach to the

issuance of new motor vehicle emission standards under the CAA that would allow 

California to continue “to blaze its own trail[,]” American Trucking Ass’ns v EPA, 

600 F.3d 624 629 (D.C. Cir. 2010), and give California broad discretion in 

establishing its own motor vehicle emission standards that best protect the State’s 

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public health and welfare. MEMA I, 627 F.2d at 1110. This approach allows

California to continue to be an innovator in these standards for the entire country, 

addresses California’s unique air quality issues, and provides the regulated 

community with the assurance that new motor vehicles need only meet either the 

California or federal emission standards. 

The Association’s merits brief takes issue with the Board’s exercise of this 

broad discretion in issuing these Regulations. Notably absent from the 

Association’s brief, however, is any direct attack on EPA’s Waiver itself – in other 

words, the Association does not challenge, in any respect, EPA’s analysis of the 

three statutory criteria under CAA Section 7543(b). Instead, the Association 

effectively argues under the APA that EPA’s Waiver “fails to meet . . . 

constitutional requirements,” Petitioner OOIDA’s Opening Brief (“Pet’s Br.”) at 

20, because the Board Regulations for which EPA granted the Waiver violate the 

dormant Commerce Clause. Thus, the Association focuses solely on whether the 

Board violated the dormant Commerce Clause in issuing its Regulations. This 

peculiar challenge to EPA’s Waiver must fail on several grounds. 

First, the Court should dismiss the Association’s Petition on prudential 

grounds because the Association’s challenge – which actually is against the 

Board’s Regulations rather than EPA’s Waiver – should be brought against the 

Board in California state or federal district court rather than in this Court against 

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EPA. Normally, this Court has exclusive jurisdiction under CAA Section 

7607(b)(1), 42 U.S.C. § 7607(b)(1), to review petitions for review of EPA’s 

Waivers.

4

 Here, however, because the Association’s specific arguments challenge 

only whether the Board’s Regulations violate the dormant Commerce Clause, there 

actually is no direct substantive challenge to EPA’s Waiver. This particular 

situation therefore raises prudential concerns as to whether the D.C. Circuit is the 

most appropriate venue to adjudicate a case that actually challenges a state action. 

Although the Association is barred from bringing a dormant Commerce Clause 

challenge to the Board’s Regulations given Congress’ specific grant of authority to 

California, see infra at 27-39, if any court is to proceed to consider the merits of 

this dormant Commerce Clause challenge, a California state or district court is 

better suited to do so in the context of a direct challenge to the Board’s 

Regulations. See Am. Trucking, 600 F.3d at 628, n.1 (“If [the American Trucking 

Association] is concerned that California’s rule unconstitutionally burdens 

interstate commerce, [it] also could attempt to bring a constitutional challenge 

directly to the California rule. We express no view on that possibility.”) (emphasis

 

4 The Court has exclusive jurisdiction over a challenge to “any other final action” 

taken by EPA under the CAA or any “nationally applicable regulations.” 42 

U.S.C. § 7607(b)(1). EPA’s Waiver has nationwide scope and applicability 

because it would affect persons in and outside California as well as States other 

than California that can adopt and enforce California’s Regulations once EPA 

issues the Waiver. 79 Fed. Reg. at 46,265 [JA463]. 

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added). That way, the state or federal district court could order direct relief against 

the Board, including any relief necessary to supplement the Board’s administrative 

record. Given these prudential considerations and the unique nature of the 

Association’s challenge, the Court should dismiss the Petition on prudential 

grounds. 

Second, if the Court proceeds to consider the Association’s dormant 

Commerce Clause challenge, the Court should deny the Petition. The dormant 

Commerce Clause prevents the States – not the federal government – from erecting 

barriers to the free flow of interstate commerce. U.S. Const. art. I, § 8, cl. 3; see 

infra at 29. Congress, however, specifically can authorize state or local 

government action that otherwise would violate the dormant Commerce Clause, 

even if the action ultimately interferes with interstate commerce. See White v. 

Massachusetts Council of Const. Emp’r, 460 U.S. 204, 213 (1983). Both the 

legislative history of CAA Section 7543 and the text of the statute itself show that 

Congress affirmatively contemplated the type of regulations that the Board has 

issued here, even where those regulations would otherwise arguably interfere with 

interstate commerce. 

As this Court has recognized, the legislative history of CAA Section 7543, 

42 U.S.C. § 7543, shows that Congress intended to give California broad discretion 

in establishing motor vehicle emission standards that best protect the State’s public 

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health and welfare. MEMA I, 627 F.2d at 1110; MEMA II, 142 F.3d at 463

(recognizing California is given the “broadest possible discretion in selecting the 

best means to protect the health of its citizens”); Ford, 606 F.2d at 1297 

(“Congress consciously chose to permit California to blaze its own trail with a

minimum of federal oversight.”). Congress specifically “understood the costs 

involved in making an exception for California” but nonetheless decided “to 

recommend that these costs be absorbed by allowing a waiver” given “the benefits 

for the Nation to be derived from permitting California to continue its experiments

in the field of emissions control. . . .” MEMA I, 627 F.2d at 1109-10. 

The text of Section 7543(b) supports that legislative history. Under that 

Section, California has to ensure that its regulations will be, in the aggregate, at 

least as protective as applicable federal standards. EPA then has three narrow 

criteria under which to review California’s standards to determine whether to grant 

a waiver and nothing in Section 7543(b) “requires [EPA] to consider the 

constitutional ramifications of the regulations for which California requests a 

waiver.” MEMA I, 627 F.2d at 1115. Further, nothing in Section 7543(b) 

precludes the type of Regulations at issue here that arguably could burden 

interstate commerce. The Board’s waiver request is entirely consistent with and 

authorized by the purpose and text of Section 7543(b), even if those Regulations 

burden interstate commerce. Therefore, Congress itself has precluded the dormant 

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Commerce Clause challenge that the Association brings here against the Board’s 

Regulations. 

Finally, even if the Court reaches the substance of the dormant Commerce 

Clause challenge, it has no merit. As an initial matter, EPA did not address, nor 

was it required to address, the dormant Commerce Clause challenge in its Waiver 

proceeding. See MEMA I, 627 F.2d at 1115. EPA therefore provides a substantive 

discussion of the dormant Commerce Clause issue to the extent the Court is 

interested in EPA’s view and so as not to waive any substantive argument. 

The Court’s analysis of the dormant Commerce Clause challenge starts with 

whether the Regulations discriminate on their face against interstate commerce. 

United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 

338 (2007). They do not. The Board’s Regulations do not treat covered tractortrailers differently depending on whether they are from in-state or out-of-state. 

Indeed, the Regulations apply equally to all covered tractor-trailers and do not 

benefit in-state vehicles at the expense of burdening out-of-state vehicles. 

Because the Regulations do not discriminate on their face, the Court’s 

analysis must then proceed under the familiar balancing test of Pike v. Bruce

Church, Inc., 397 U.S. 137 (1970). Under that balancing test, any alleged burden 

that the Regulations may impose on out-of-state tractor-trailers (to the extent there 

is any such burden) is outweighed by the benefits to California’s public health and 

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welfare. Specifically, the Board’s Regulations are projected to reduce greenhouse 

gas emissions in California by approximately 2.346 million metric tons of carbon 

dioxide equivalent emissions statewide between 2010 and 2020.5

 Support 

Document at 2 [JA4]. Any increased capital or maintenance costs for tractor or 

trailer manufacturers would be recovered within one to one and a half years for 

covered tractors, and within eleven months for covered trailers. Id. at 21 (tractors), 

25 (trailers). [JA23, 27]. The Regulations therefore do not violate the dormant 

Commerce Clause under the Pike balancing test and the Court should uphold them 

if it reaches the merits. 

STANDARD OF REVIEW

The Court’s review of EPA’s decision to grant California’s request for a 

waiver under the CAA, 42 U.S.C. § 7543(b), is governed by Section 706 of the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 706. MEMA I, 627 F.2d at 

1105. The Agency’s decision must be upheld unless it is “arbitrary, capricious . . . 

or otherwise not in accordance with law” or is “contrary to constitutional right, 

power, privilege, or immunity[.]” 5 U.S.C. §§ 706(2)(A), (B). 

 

5Carbon dioxide emissions equivalent is a metric measure used to compare various 

greenhouse gas emissions based on their global warming potential. Support 

Document at 1 [JA3]. 

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With respect to the Association’s dormant Commerce Clause challenge there 

are two relevant standards. First, as to whether the Association can even bring 

such a challenge to the Board’s Regulations here, EPA and the Board have the 

“burden of demonstrating a clear and unambiguous intent on behalf of Congress to 

permit the discrimination against interstate commerce . . . .” Wyoming v. 

Oklahoma, 502 U.S. 437, 458 (1992). In other words, EPA and the Board have the 

burden to show that Congress intended to remove regulations such as those 

challenged here from the reach of the dormant Commerce Clause. Second, as to 

the substantive merits of the Association’s dormant Commerce Clause challenge, 

the “burden to show discrimination rests on the party challenging the validity of 

the statute. . . .” Hughes v. Oklahoma, 441 U.S. 322, 336 (1979). 

 ARGUMENT 

I. THE COURT SHOULD DISMISS THE PETITION ON 

PRUDENTIAL GROUNDS BECAUSE THE ASSOCIATION’S 

DORMANT COMMERCE CLAUSE CHALLENGE IS MORE 

APPROPRIATELY BROUGHT IN A SUIT AGAINST THE BOARD 

IN A CALIFORNIA STATE OR FEDERAL DISTRICT COURT. 

The Association’s challenge is directed at the constitutionality of the 

Board’s Regulations under the dormant Commerce Clause. The Association has 

not made any arguments that EPA was arbitrary and capricious in granting the 

Waiver based on any of the three criteria in CAA Section 7543(b). Although this 

Court normally has exclusive jurisdiction under CAA Section 7607(b), 42 U.S.C. 

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§ 7607(b), to review EPA waivers, this Court is not the appropriate venue for the 

type of challenge that the Association brings here – a challenge that, for all 

practical purposes, is directed at a state action. The Court therefore should dismiss 

the Petition on prudential grounds so that the Board can file suit in a California 

state or federal district court to directly challenge the Regulations under the 

dormant Commerce Clause (assuming any such challenge could even be brought, 

see infra at 27-39). 

CAA Section 7607(b), 42 U.S.C. § 7607(b), dictates that exclusive 

jurisdiction over a petition for review challenging a final agency action or any 

“nationally applicable regulations,” may be filed “only in the United States Court 

of Appeals for the District of Columbia.” 42 U.S.C. § 7607(b)(1) (emphasis 

added). In its Waiver, EPA expressly notified interested persons that: 

This decision will affect not only persons in California, but also 

manufacturers and operators nationwide who must comply with 

California’s requirements. In addition, because other states may adopt 

California’s standards for which a section 209(b) waiver has been 

granted under section 177 of the Act if certain criteria are met, this 

decision would also affect those states and those persons in such 

states. For these reasons, EPA determines and finds that this is a final 

action of national applicability, and also a final action of nationwide 

scope or effect for purposes of section 307(b)(1) of the Act. Pursuant 

to section 307(b)(1) of the Act, judicial review of this final action may 

be sought only in the [D.C. Circuit].

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79 Fed. Reg. at 46,265 [JA463]. Because EPA’s Waiver has nationwide 

applicability, jurisdiction under Section 7607(b) is appropriate only in the D.C. 

Circuit. 

The Association’s Brief, however, complicates the Court’s review and poses 

a prudential question as to whether this Court, despite its jurisdiction, is the 

appropriate venue for a challenge to a State action based on the dormant 

Commerce Clause. EPA was not required to consider, and did not consider, the 

dormant Commerce Clause issue in its Waiver proceeding. See MEMA I, 627 F.2d 

at 1115 (Section 7543(b) does not require EPA “to consider the constitutional 

ramifications of the regulations for which California requests a waiver”). Because 

EPA was not required to address the dormant Commerce Clause issue in the 

Waiver proceeding, the Board is the real party in interest and its analysis of that 

issue during its administrative proceeding provides the relevant administrative 

record. The Board therefore is much better-suited to defend against the substance 

of the dormant Commerce Clause challenge in the context of a direct challenge to 

the Board’s Regulations (assuming it is proper for any court even to consider the 

substance of the dormant Commerce Clause challenge). A California state or 

federal district court may have jurisdiction and be the proper venue for any direct 

dormant Commerce Clause challenge to the Board’s Regulations in this particular 

context – a point that EPA even made during its Waiver proceedings. See 79 Fed. 

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Reg. at 46,264 (“Constitutional challenges to [the Board’s] Regulation[s] are more 

appropriately addressed by a legal challenge directly against the state.”) [JA462]. 

This Court also seems to have recognized that such a direct challenge to 

California’s regulations could be the more appropriate path. For example, in 

MEMA I, this Court specifically noted that “[i]f petitioners dislike the substance of 

the [Board’s] regulations, or if they believe the procedures the [Board] used to 

enact them were unsatisfactory, then they are free to challenge the regulations in 

the state courts of California.” 627 F.2d at 1105. The Court further explained, 

however, that although the “waiver proceeding produces a forum ill-suited to the 

resolution of constitutional claims . . . petitioners are assured through a petition for 

review here that their contentions will get a hearing.” Id. at 1115. The Court then 

proceeded to consider the merits of the petitioners’ constitutional claims (which 

did not involve a dormant Commerce Clause challenge) along with many 

additional direct challenges to the waiver, and found that those particular 

constitutional claims had no merit. Id. at 1127-28. Although the MEMA I Court 

stated, in dicta, that petitioners’ constitutional challenges could be heard through a 

petition for review in the D.C. Circuit, the MEMA I Court was not confronted with 

a dormant Commerce Clause challenge like the Court is here, which fundamentally 

impacts the prudential considerations at issue. In this particular context, contrary 

to the situation in MEMA I, the relevant constitutional analysis was done by the 

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Board (not by EPA) and the relevant administrative record on that issue is the 

Board’s (not EPA’s). 

 This Court in American Trucking further reiterated the notion that a direct 

challenge to California’s regulations could be more appropriate when it comes to 

Commerce Clause challenges. There, the Court rejected the petitioner’s attempt to 

“improperly . . . engraft a type of constitutional Commerce Clause analysis onto 

EPA’s . . . waiver decisions that is neither present in nor authorized by the statute.” 

600 F.3d at 628. The Court went on to note that if a petitioner is “concerned that 

California’s rule unconstitutionally burdens interstate commerce,” the petitioner 

“could attempt to bring a constitutional challenge directly to the California rule. 

We express no view on that possibility.” Id. at 631 n.1. 

Thus, based on this Court’s prior statements, a California state or federal 

district court would be better suited to hear this dormant Commerce Clause 

challenge – the Board would be able to submit its administrative record and the 

state or federal district court could order any additional relief to further supplement 

that record if necessary to address the constitutional issue. EPA therefore suggests 

that the proper remedy, in this particular circumstance, is to dismiss the 

Association’s Petition on prudential grounds, to allow the Association to file suit 

directly challenging the Board’s Regulations in an appropriate California state or 

federal district court. 

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II. THE ASSOCIATION CANNOT BRING THIS DORMANT 

COMMERCE CLAUSE CHALLENGE TO CALIFORNIA’S 

REGULATIONS. 

If the Court proceeds to consider the Association’s dormant Commerce 

Clause challenge, the Petition nonetheless should be dismissed. Although EPA did 

not analyze the merits of the Association’s dormant Commerce Clause claim 

during the Agency’s administrative process, and was not required to do so, see 

MEMA I, 627 F.2d at 1115, EPA provides the Court here with its position on the 

merits of that challenge, so as to assist the Court in its consideration of this 

constitutional issue, should it be reached by the Court. EPA also refers the Court 

to the discussion of this issue by the Board in its Respondent-Intervenor brief and 

in the Board’s administrative record compiled during its administrative process for 

the Regulations. See 2010 Final Statement of Reasons at 23-39 [JA366-82]. 

As an initial matter, EPA notes that the threshold issue here is not, as the 

Association claims, whether this Court “has plenary authority to review 

Petitioner’s constitutional challenge. . . .” Pet’s Br. at 2. In this particular case, 

EPA does not dispute that a court can review constitutional issues that an agency 

did not have authority to consider. Rather, the threshold issue is whether the 

Association can even bring this dormant Commerce Clause challenge to the 

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Board’s Regulations. For the reasons discussed below, it cannot.6 

It is well-established “that Congress may redefine the distribution of power 

over interstate commerce by permitting the states to regulate the commerce in a 

manner which would otherwise not be permissible.” South-Central Timber Dev. v. 

Wunnicke, 467 U.S. 82, 87-88 (1984) (citations and internal quotation marks 

omitted). In such cases, there is no dormant Commerce Clause challenge available 

because Congress has specifically removed the state action from the reach of the 

Commerce Clause. As discussed below, that is the situation here with CAA 

Section 7543(b). 

A. Congress Can Provide That A State Action Should Be Immune 

From Attack Under The Dormant Commerce Clause. 

The Commerce Clause of the United States Constitution provides that “[t]he 

Congress shall have Power . . . [t]o regulate Commerce . . . among the several 

States . . . .” Art. I, § 8, cl. 3. “Long ago it was settled that even in the absence of 

a congressional exercise of this power, the Commerce Clause prevents the States 

from erecting barriers to the free flow of interstate commerce.” Raymond Motor 

Transp., Inc. v. Rice, 434 U.S. 429, 440 (1978) (citing Cooley v. Board of 

 

6 EPA noted in the Waiver that “[c]onstitutional challenges to the [California 

regulations] are more appropriately addressed by a legal challenge directly against 

the state.” 79 Fed. Reg. 46,264 [JA462]. That statement, however, does not 

concede that the Association’s Dormant Commerce Clause challenge against the 

Board’s Regulations here is legally viable. 

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Wardens, 53 U.S. 299 (1851)). This aspect is known as the “negative” or dormant 

Commerce Clause. 

“The Commerce Clause is a grant of authority to Congress, and not a 

restriction on the authority of that body.” White, 460 U.S. at 213 (citation 

omitted). Thus, as relevant here, “[w]here state or local government action is 

specifically authorized by Congress, it is not subject to the Commerce Clause even 

if it interferes with interstate commerce.” Id.; see Western & Southern Life Ins. 

Co. v. State Bd. of Equalization of California, 451 U.S. 648, 652 (1981) (“In the 

exercise of this plenary authority, Congress may confer upon the States an ability 

to restrict the flow of interstate commerce that they would not otherwise enjoy.”)

(internal quotation marks omitted). 

Over the years the Supreme Court has clarified the kind of Congressional 

intent that must be found before determining that a state action is insulated from a 

dormant Commerce Clause attack. In Wunnicke, the Supreme Court determined 

that there should be “a clear expression of approval by Congress” to allow a State 

to take action that will be removed from the reach of the dormant Commerce 

Clause. 467 U.S. at 92. As the Court explained, “[t]he requirement that Congress 

affirmatively contemplate otherwise invalid state legislation is mandated by the 

policies underlying dormant Commerce Clause doctrine.” Id. at 91-92.

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The “Commerce Clause was designed to avoid . . . tendencies toward 

economic Balkanization” that could force unrepresented interests in one state to 

“bear the brunt of regulations” imposed by another state. Id. at 92. But, where 

Congress acts, “all segments of the country are represented, and there is 

significantly less danger that one State will be in a position to exploit others.” Id. 

Further, even if a State is in a position to exploit another State, then a decision 

made by Congress to allow such action at least “is a collective one” that “reduces 

significantly the risk that unrepresented interests will be adversely affected by 

restraints on commerce.” Id. These principles apply with full force here, where it 

is clear from the legislative history and text of the statute that Congress

affirmatively contemplated the type of regulations at issue to allow California to 

continue to “blaze a trail,” Am. Trucking, 600 F.3d at 629, even in face of 

increased costs on industry or potential burdens on interstate commerce. 

B. The Legislative History And Text Of CAA Section 7543(b) 

Preclude The Association’s Dormant Commerce Clause Challenge

To The Board’s Regulations. 

This Court in MEMA I discussed at length the legislative history behind 

CAA Section 7543(b), see generally 627 F.2d at 1109-11, and this legislative 

history supports the conclusion here that the Association’s dormant Commerce 

Clause challenge is precluded. As MEMA I discussed, prior to 1965, California 

was the only state that had implemented statewide air pollution control efforts for 

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motor vehicles. Id. at 1109. In 1965, Congress enacted the Motor Vehicle Air 

Pollution Control Act, part of which allowed the Secretary of Health, Education, 

and Welfare to prescribe federal emission standards. Id. at 1108 n.23 (citing Pub.

L. No. 89-272, § 202, 79 Stat. 992 (1965)). That statute, however, did not contain 

any preemption provision and, thus, States were free to adopt emission regulations 

of their own. Id. This “raised the spectre of an anarchic patchwork of federal and 

state regulatory programs, a prospect which threatened to create nightmares for the 

manufacturers.” Id. at 1109. Consequently, in 1967, Congress considered 

enacting a preemption provision. 

During the debates concerning a preemption provision, 

representatives of the State of California were clearly opposed to 

displacing the State’s right to set more stringent standards to meet 

peculiar local conditions. The auto industry conversely was adamant 

that the nature of their manufacturing mechanism required a single 

national standard in order to eliminate undue economic strain on the 

industry. 

Id. Taking these considerations into account, the Senate Committee “that 

formulated the waiver provision understood the costs involved in making an 

exception for California and decided to recommend that these costs be absorbed by 

allowing a waiver not of part of the preemption provision, but of the entire 

[preemption provision].” Id. (emphasis added). The Committee and ultimately 

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Congress therefore spoke on the issue of the costs associated with allowing 

California to proceed with its own standards and, in the end, concluded that

the advantages of the California exception included the benefits for 

the Nation to be derived from permitting California to continue its 

experiments in the field of emissions control . . . and the benefits for 

the people of California to be derived from letting that State improve 

on its already excellent program of emissions control. 

Id. at 1109-10. 

In the 1977 CAA amendments, Congress further strengthened California’s 

waiver provision. The prior version of the waiver provision (enacted in 1967) 

required that California’s standards be “more stringent” than Federal standards. In 

the 1977 CAA amendments, Congress revised that language to require California 

to ensure only that its standards will be “in the aggregate, at least as protective of 

public health and welfare [as] applicable Federal standards.” MEMA I, 627 F.2d at 

1110. Quoting the legislative history to the 1977 amendment, the MEMA I Court 

emphasized that this “amendment [was] intended to ratify and strengthen the 

California waiver provision and to affirm the underlying intent of that provision, 

i.e., to afford California the broadest possible discretion in selecting the best means 

to protect the health of its citizens and the public welfare.” Id. (quoting H.R. Rep. 

No. 95-294, 301-02 (1977), reprinted in 1977 U.S.C.C.A.N. at 1380)). Thus, as 

stated in MEMA I, 

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The history of congressional consideration of the California waiver 

provision, from its original enactment up through 1977, indicates that 

Congress intended the State to continue and expand its pioneering 

efforts at adopting and enforcing motor vehicle emission standards 

different from and in large measure more advanced than the 

corresponding federal program; in short, to act as a kind of laboratory 

for innovation.

627 F.2d at 1110-11. 

This legislative history shows Congress’ transparent and explicit intent to 

give California a special seat at the table when it comes to formulating motor 

vehicle emission standards to protect the health and welfare of its own citizens

because of the benefits not only for California, but for the Nation as a whole. 

Congress weighed the issue of potential costs to manufacturers who have to 

comply with two sets of standards against the benefits the rest of the country would 

receive by allowing California to continue to “act as a kind of laboratory for 

innovation.” Id. at 1111. Ultimately, Congress made a collective decision that 

allowed California to elevate its interests in protecting public health and welfare 

above other States and above any concern over burdens on interstate commerce, 

thereby showing “a clear expression of approval” to allow the Board’s Regulations 

here to be removed from the reach of the dormant Commerce Clause. Wunnicke, 

467 U.S. at 92. 

The clear Congressional intent evident in the legislative history is likewise 

reflected in the actual text of Section 7543(b). EPA must grant California a waiver 

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if California determines that its standards “will be, in the aggregate, at least as 

protective of public health and welfare as applicable Federal standards.” Congress 

directed EPA to deny the waiver request only if (1) California’s determination is 

arbitrary and capricious; (2) California does not need such standards “to meet 

compelling and extraordinary conditions”; and (3) California’s standards and 

accompanying enforcement provisions are not consistent with 42 U.S.C. § 7521(a) 

of the CAA. 42 U.S.C. § 7543(b). Nothing in the text of Section 7543(b) requires 

or suggests that California’s standards must not impose any barrier to the free flow 

of interstate commerce.7

 Further, Congress specifically allowed other States to 

adopt California’s new motor vehicle emission standards, 42 U.S.C. § 7507, 

thereby recognizing that all other States could elect to be on an even footing with 

California should they wish to adopt the same standards. 

A more explicit expression of Congressional intent to allow a state to issue

the type of regulations at issue here and, thus, to be insulated from the reach of the 

dormant Commerce Clause is hard to imagine. If, as here, Congress ordains that 

the States may freely regulate an aspect of interstate commerce, “any action taken 

by a State within the scope of the congressional authorization is rendered 

 

7 There may be unidentified circumstances (that are not present here) where EPA’s 

consideration of the criteria in CAA Section 7543(b), which allow for limited 

consideration of costs and consistency with Section 7521(a), could effectively limit 

the impact of California’s regulations on interstate commerce. 

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invulnerable to Commerce Clause challenge.” Western & Southern Life Ins., 451 

U.S. at 652-53. 

The Association has not argued (and cannot now argue) that the Board’s 

regulations were not within the scope of that Congressional authorization, i.e., that 

the regulations did not meet the criteria listed above in Section 7543(b), and, thus, 

present dormant Commerce Clause vulnerabilities. In fact, the Association’s 

argument has nothing to do with whether the criteria in Section 7543(b) have been 

met or whether the Regulations are within the scope of Section 7543(b). The 

Association therefore has waived any such argument. See Catawba Cty v. EPA, 

571 F.3d 20, 38 (D.C. Cir. 2009) (petitioners waived two of their arguments by 

failing to raise them in their opening brief).

At least one federal district court has agreed that regulations issued by the 

Board under Section 7543(b) are immune from challenge under the dormant 

Commerce Clause. In Central Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp.

2d 1160 (E.D. Cal. 2006), plaintiffs challenged California regulations for which 

EPA subsequently granted a waiver. One of plaintiffs’ arguments was that the 

regulations violated the dormant Commerce Clause. Id. at 1183-86. Relying on 

the principles discussed above, as well as this Court’s discussion of the legislative 

history behind Section 7543(b) in MEMA I, the Witherspoon court found that the 

plaintiffs failed to state a claim under the dormant Commerce Clause. Id. at 1186. 

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“The legislative history makes clear that both the House and the Senate considered 

that the California regulations under the waiver would substantially burden 

interstate commerce. Nevertheless, realizing the benefits for California and for the 

nation from allowing the state broad authority, Congress enacted the waiver 

anyway.” Id. at 1185. In light of that legislative history, Congress gave 

“unmistakably clear permission to California to burden interstate commerce.” Id.

at 1186 (internal quotation marks omitted). 

Although the legislative history and text of Section 7543 are clear in this 

regard, they do not specifically use the phrase “Commerce Clause.” The omission 

of that specific phrase, however, is irrelevant. Congress expressly addressed

commerce-related issues through its consideration of costs imposed on the 

regulated community and specifically allowed California to proceed despite those 

costs concerns. All that is required to remove a state action from the reach of the 

dormant Commerce Clause is that Congress “affirmatively contemplate[d] 

otherwise invalid state legislation.” Wunnicke, 467 U.S. at 91; see White, 460 U.S. 

at 213 (upholding city executive order against dormant Commerce Clause 

challenge because the relevant federal regulations “indicate[] that the . . . executive 

order sounds a harmonious note; the federal regulations for each program 

affirmatively permit the type of parochial favoritism expressed in the order.”); see 

also Envt’l Tech. Council v. Sierra Club, 98 F.3d 774, 782 (4th Cir. 1996) 

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(“Congress need not state that it intends to override the dormant Commerce 

Clause, but it must affirmatively have contemplated the otherwise invalid state 

legislation.”). Thus, although Congress did not expressly use the phrase 

“Commerce Clause” in CAA Section 7543(b) and the legislative history, Congress

nonetheless affirmatively contemplated – through its consideration of a separate 

emissions program for California and the potential costs to industry – the type of 

regulations at issue here that may otherwise violate the dormant Commerce Clause. 

This case is easily distinguishable from other cases where no such 

affirmative Congressional contemplation was found. For example, in Sporhase v. 

Nebraska, 458 U.S. 941 (1982), landowners who owned contiguous tracts of land 

in Colorado and Nebraska challenged the constitutionality of a Nebraska statute 

restricting the withdrawal of groundwater from any well in Nebraska that was 

intended for use in an adjoining state. Id. at 943. Relying on 37 different statutes 

and other interstate compacts, Nebraska argued “that Congress has authorized the 

States to impose otherwise impermissible burdens on interstate commerce in 

ground water . . . .” Id. at 958. The Supreme Court found that those statutes and 

state compacts did “not indicate that Congress wished to remove federal 

constitutional constraints on such state laws.” Id. at 959-60. The fact that 

Congress had let States settle their own differences through compacts rather than 

enacting a federal law, was not “persuasive evidence that Congress consented to 

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the unilateral imposition of unreasonable burdens on commerce.” Id. at 960. Here, 

in contrast to that situation (where there was a lack of a federal statute 

affirmatively contemplating the otherwise invalid state action) there is a specific 

federal statute – CAA Section 7543(b) – which provides the requisite affirmative

Congressional contemplation to immunize the Board’s Regulations from the

dormant Commerce Clause. 

Another distinguishable case is New England Power Co. v. New Hampshire, 

455 U.S. 331 (1982). There, the statute and legislative history were notably less 

explicit than the text of CAA Section 7543(b) and legislative history here. In that 

case, New England Power challenged a New Hampshire statute that required New 

England Power to sell electricity to New Hampshire utilities in an amount equal to 

the output of its in-state hydroelectric facilities. Id. at 336. The Supreme Court 

found that the language of the federal statute at issue was not “an affirmative grant 

of power to the states to burden interstate commerce in a manner which would 

otherwise not be permissible[,]” and “[n]othing in the legislative history or 

language of the statute evince[d] a congressional intent to alter the limits of state 

power otherwise imposed by the Commerce Clause.” Id. (citations and internal 

quotation marks omitted). That is not the case here where, again, there is such an 

affirmative grant of power to California – both in the legislative history and 

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statutory text – to alter the limits of state power that otherwise would be imposed 

by the dormant Commerce Clause. 

Given this clear Congressional intent, the Board’s Regulations here are

invulnerable from the dormant Commerce Clause challenge the Association 

presents and the Court should dismiss the Petition. 

III. EVEN IF THE COURT REACHES THE DORMANT CLAUSE 

CHALLENGE, THE ASSOCIATION’S CLAIM HAS NO MERIT. 

 

Even if the Court concludes that the dormant Commerce Clause applies to 

the Board’s Regulations, the Association’s claim still lacks merit. “To determine 

whether a law violates [the] so-called ‘dormant’ aspect of the Commerce Clause, 

[the Court] first ask[s] whether it discriminates on its face against interstate 

commerce.” United Haulers, 550 U.S. at 338 (citations omitted). 

“‘[D]iscrimination’ simply means differential treatment of in-state and out-of-state 

economic interests that benefits the former and burdens the latter.” Id. Here, the 

Board’s Regulations do not treat in-state and out-of-state interests differently. 

The Board’s Regulations apply to new 53-foot or longer tractors (for model 

years 2011-2013) and trailers (for model year 2011 and later) pulled by such 

tractors that travel on California highways. 79 Fed. Reg. at 46,257 [JA455]. The 

Regulations reduce greenhouse gas regulations by, inter alia, “requiring certain 

tractors and semitrailers on California highways to employ aerodynamic 

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technologies and low-rolling-resistance tires.” Id. The Board determined that 

these upgrades would yield the greatest greenhouse gas reductions when tractors 

and trailers operate frequently at highway speeds. Id. The Regulations thus 

exempt certain types of tractors and trailers that the Board determined are less 

likely to travel frequently at those highway speeds. Id.; 17 C.C.R. § 95301(b), (c).8

 

The Association claims that these exemptions “insulate[] California ‘instate’ truckers from compliance, but require[] interstate long-haul truckers to 

shoulder the full burden and expense of regulatory compliance.” Pet’s Br. at 3. 

The Regulations, however, do not exempt all in-state tractors and trailers, nor do 

all of the exemptions cover only in-state vehicles. For example, there may be 

local-haul tractors and trailers (that travel within a 100-mile radius of their base) 

exempt from the regulations that are located out-of-state and merely cross the 

border into California. 

Also, as even the Association acknowledges, the short-haul exemption is not 

“limited on its face to local interests[.]” Pet’s Br. at 7. Yet, the Association claims 

(without any support) that the short-haul exemption would “exempt virtually all 

otherwise covered trucks and trailers that operate predominantly within the state.” 

Id. Although the Association offers no support for its vague references to 

 

8

 See supra n.3. 

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exempting “virtually all” in-state tractors and trailers, it cites to a registry 

indicating that California-based “interstate motor carriers average 42,243 miles in 

California, an amount that might qualify them for the short-haul exemption when 

only their miles operated in California were factored in.” Id. at 8 (citing 

Association Comments) [JA421]. The mileage used to determine whether a tractor 

is “short-haul,” however, includes in-state and out-of-state miles, which have to 

equal less than 50,000 miles per year. 17 C.C.R. § 95302(a)(52). Thus, any tractor 

or trailer that travels less than 50,000 miles – whether it comes from Los Angeles 

or Las Vegas – could qualify for the short-haul exemption. The Association’s 

reliance solely on the in-state miles of “interstate motor carriers” based in 

California therefore misses the point. Further, as stated by the Board, the purpose 

of the short-haul exemption is to provide some regulatory relief for “trucks that 

will not substantially benefit from the use of aerodynamic devices” because they 

“either infrequently operate at highway speeds or generate low mileage” and thus 

the technology would achieve lower fuel savings and be less cost-effective. 2008 

Final Statement of Reasons at 126-27. [JA298-99]. The Board fully responded to 

the Association’s same arguments on this exemption during the Board’s 

administrative proceedings for the Regulations. 2010 Final Statement of Reasons 

at 23-31, 50-52 [JA366-74, JA393-95]. The short-haul exemption therefore

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properly provides a level playing field in this regard between in-state and out-ofstate entities.

Overall, the Regulations cover long-haul tractors and trailers (which include 

both in-state and out-of-state tractors and trailers) that operate in California and do

not discriminate on their face against out-of-state commerce by benefitting in-state 

economic interests and burdening out-of-state economic interests. First, “[t]he 

regulation provides a ‘level playing field,’ requiring all motor carriers involved in 

the long-haul transport of freight in 53 foot or longer box-type trailers to comply 

with the regulation’s equipment requirements when traveling on California 

highways – whether they are based in California or out-of-state.” 2010 Final 

Statement of Reasons at 24 [JA367]. Each of the exemptions under the 

Regulations are available to both in-state and out-of-state entities that meet the 

eligibility criteria. Id. at 28 [JA371]. Thus, the exemptions do not benefit in-state 

businesses at the expense of out-of-state businesses. Id.

Second, California expressly stated that the justification for focusing on 

long-haul tractors and trailers was that the aerodynamic and other efficiency 

upgrades would yield the greatest results only when installed on vehicles that 

operate frequently at highway speeds (the long-haul tractors). 79 Fed. Reg. at 

46,257 [JA455]. The exemptions for other types of tractors and trailers that will 

not travel at such highway speeds had nothing to do with trying to benefit in-state 

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economic interests over out-of-state interests. 2010 Final Statement of Reasons at 

30 [JA373] (“[S[hort-haul tractors are exempted from the requirements, not 

because they travel fewer miles and as a result produce less [greenhouse gas] 

emissions than long-haul tractors, but because, at the speeds they are operated, the 

aerodynamic devices installed on these vehicles provide minimal or zero 

[greenhouse gas] emission benefits.”). The Association does not argue to the 

contrary; instead, the Association takes issue with the technical basis for the 

Board’s regulatory exemptions. Pet’s Br. at 9-11. None of the Association’s 

substantive attacks on the Board’s technical determinations, however, deserves 

attention because the Association fails to make any argument that these 

determinations (and EPA’s acceptance of these determinations) were arbitrary and

capricious. At any rate, those technical attacks fail to show how the Regulations 

are discriminatory on their face. All in-state and out-of-state tractor-trailers that 

are covered under the regulations are treated exactly the same. See United 

Haulers, 550 U.S. at 345. 

Because the California Regulations are not discriminatory on their face, any 

dormant Commerce Clause analysis should proceed under the balancing test in 

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). United Haulers, 550 U.S. at 346. 

That test applies to laws “directed to legitimate local concerns, with effects upon 

interstate commerce that are only incidental.” Id. (citation and internal quotation 

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marks omitted). “Under the Pike test, [the Court] will uphold a nondiscriminatory 

statute like this one unless the burden imposed on interstate commerce is clearly 

excessive in relation to the putative local benefits.” Id. (quoting Pike, 397 U.S. at 

142). Under this test, the Board’s Regulations are valid. 

In its brief, the Association focuses largely on the alleged higher costs it 

claims will be borne by out-of-state tractor and trailer operators. Pet’s Br. at 12-

14. The Association, however, creates a superficially large figure for compliance 

by multiplying the small cost of compliance by the largest number of vehicles that 

could be subject to the Regulations, without noting that EPA and the Board 

estimated that the costs of compliance would be paid back through fuel savings in 

one to one and a half years or less for tractors and in less than eleven months for 

trailers. 79 Fed. Reg. at 46,263 [JA461].9

 

The Association also mischaracterizes EPA’s statement during the Waiver 

proceeding that “[a] disproportionate impact on out-of-state carriers is supported 

by [the Board’s] data as well.” 79 Fed. Reg. at 46,264, n.103 [JA462]; see id.

(stating that “over 90% of the cost impact of California’s Regulations is expected 

 

9 In calculating its cost estimates for trailer compliance, the Association also 

incorrectly uses the figure of $2,900 (which would have been recovered through 

fuel savings within eighteen months), rather than the Board’s revised estimate of 

$1,250 (which will be recovered within an average of eleven months). See Pet’s 

Br. at 12; see also 79 Fed. Reg. at 46,263 (indicating Board’s decreased cost 

estimate for trailers) [JA461]. 

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to occur outside California”); Pet’s Br. at 15. That contention, on its own, does not 

justify a finding under the Pike balancing test that the burden imposed on interstate 

commerce is clearly more excessive in relation to the putative local benefits. Any 

incidental burden on interstate commerce (which is recouped through the payback 

periods through fuel savings) does not exceed the public health benefits of the 

Board’s Regulations. See United Haulers, 550 U.S. at 346 (finding it “unnecessary 

to decide whether the [regulations] impose any incidental burden on interstate 

commerce because any arguable burden does not exceed the public benefits of the

[regulations].”). 

Specifically, California faces uniquely difficult challenges in meeting the 

national ambient air quality standards for ozone. California is the only state to 

have any area classified as “extreme” nonattainment for ozone under the CAA, and 

it has two large areas and several other smaller areas in “severe” nonattainment. 

40 C.F.R. § 81.305. Climate change is expected to exacerbate this problem. 74 

Fed. Reg. 32,744, 32,746, 32,760 (July 8, 2009) [JA464, JA466, JA480]. 

Although these Regulations by themselves will not result (and are not required to 

result) in the attainment of the ozone standards, California needs to consider every 

possible emissions reduction to achieve the level of public health protection 

required by the CAA. 

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The air pollution issues facing California today are a continuation of the 

same issues that led California to regulate emissions from motor vehicles 

beginning in 1963 and that led Congress to authorize California to continue its own 

motor vehicle emission program. Moreover, the legislative history behind CAA 

Section 7543 (discussed above, supra at 29-31) shows Congress’ recognition of the 

difficulties facing California and the extreme importance that Congress placed on 

California being able to exercise the broadest discretion in determining the 

emissions regulations that would enable it to achieve cleaner air and provide

appropriate protection for the public health and welfare of its citizens. Like the 

county ordinances in United Haulers that addressed waste disposal, the Board’s 

Regulations here can be viewed as an “exercise[] of [its] police power in an effort 

to address” air emissions, “a typical and traditional concern of local government.” 

550 U.S. at 347. Indeed, the Board projects that the Regulations will reduce 

greenhouse gas emissions in California by “0.7 million metric tons of carbondioxide equivalent emissions by 2020” and “reduce nitrogen oxide . . . emissions in 

California by 3.1 tons per day in 2014, thereby helping California meet the national 

ambient air quality standards for particulate matter and ozone.” 79 Fed. Reg. at 

46,257 [JA455]. Those significant public benefits in contributing to the attainment 

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of the national ambient air quality standards outweigh any purported burden on 

interstate commerce.10

None of the cases on which the Association relies undermines this result. 

For example, Raymond Motor Trans., Inc. v. Rice, 434 U.S. 429 (1978) is 

inapposite and, indeed, supports that the Board’s Regulations are constitutional. 

Pet’s Br. at 25-26; 32. In Raymond, the Supreme Court held that Wisconsin 

regulations limiting the length of trucks operated in that state violated the 

Commerce Clause under the Pike balancing test. The Supreme Court found that 

Wisconsin had produced virtually no evidence to demonstrate that its regulations 

contributed to highway safety, whereas the challengers had demonstrated that the 

regulations imposed a substantial burden on interstate commerce. Id. 444-45. In 

addition, although state regulations that promote highway safety are entitled to a 

“strong presumption of validity,” id. at 444, n.19 the “great number of exceptions”

to the Wisconsin regulation “weaken the presumption in favor of the validity” of 

the regulation. Id. at 446-47. Importantly, the Court stated that its “holding is a 

 

10 The Association incorrectly claims that there could be “runaway state regulation 

. . . if every one of the other 49 states also promulgated their own separate 

regulatory regime. . . .” Pet’s Br. at 33; id. at 33-34 (“such a scenario would 

‘wreak havoc’ on the nation’s interstate transportation system”). That is not 

possible under CAA Section 209(b). As explained above, see supra at 6-7, there 

can be only two sets of motor vehicle emission standards: the federal standards or 

the California standards (which other states can adopt under CAA Section 7507, 42 

U.S.C. § 7507). 

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narrow one” because the Court did “not decide whether laws of other States 

restricting the operation of trucks over 55 feet long, or of double-trailer trucks, 

would be upheld if the evidence produced on the safety issue were not so 

overwhelmingly one-sided as in this case.” Id. at 447. 

Unlike in Raymond, the benefits of the Board’s Regulations here are wellsupported. See 2008 Initial Statement of Reasons at ES5-6, 52-66 [JA44-45, JA98-

112]. Further, the Association’s arguments focus only on the costs the industry 

will bear. These arguments about costs, however, either lack evidentiary support, 

79 Fed. Reg. at 46,263 [JA461], or were considered and reasonably rejected by the 

Board, id. at 46,264 [JA462]; 2008 Final Statement of Reasons at 81-105 [JA253-

77]. Moreover, the Board reasonably concluded that because of improved fuel 

economy, these costs will be recovered within one to one and a half years for 

tractors, and within eleven months for trailers. Support Document at 21, 25 [JA23, 

JA27]. Finally, the Board amply responded to comments that disputed the speeds 

at which short- and long-haul tractors would travel, 2008 Final Statement of 

Reasons at 44-52 [JA216-24], which justified the exemptions the Board created. 

In short, the Association simply provides insufficient evidence to contradict the 

well-documented benefits of the Board’s Regulations or to raise any doubt as to 

whether these benefits outweigh any incidental burdens that will be recouped 

through eventual fuel savings. 

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Finally, Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) does not 

support the Association’s argument. Pet’s Br. at 25. The Supreme Court in Bibb

found an Illinois law unconstitutional because it required a certain kind of 

mudguards for trucks. This particular type of mudguard conflicted with an 

Arkansas law and, in fact, made a particular type of mudguard that was legal in at 

least 45 states, illegal in Illinois. Id. at 523. Here, there is no evidence of any such 

conflict between the Board’s Regulation and any other state regulation. To the 

contrary, other states are free under CAA Section 7507, 42 U.S.C. § 7507, to adopt 

the Board’s Regulation. 

For these reasons, even if a dormant Commerce Clause analysis is deemed to 

apply here, the Board’s Regulations do not violate the dormant Commerce Clause

and EPA’s Waiver therefore is not contrary to constitutional right under the APA. 

CONCLUSION

For the foregoing reasons, the Court should dismiss the Association’s 

petition for prudential reasons or deny the petition on the merits.

Respectfully submitted,

JOHN C. CRUDEN

Assistant Attorney General

__/s/ Michele L. Walter __________

MICHELE L. WALTER

United States Department of Justice

Environment & Natural Resources Division

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Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

Tel: (202) 514-2795

Fax: (202) 514-8865 

Michele.Walter@usdoj.gov

Counsel for Respondent

OF COUNSEL

Winifred Okoye

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Tel: (202) 564-5446

June 16, 2015

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CERTIFICATE OF COMPLIANCE WITH WORD LIMITS

Pursuant to Fed. R. App. P. 37(a)(7)(C), and exclusive of the components of 

the brief excluded from the word limit pursuant to Fed. R. App. P. 32(a)(7)(B)(iii) 

and Circuit Rule 32 (a)(1), I certify that the foregoing Final Brief for Respondent 

contains 11,239 words, as counted by the “word count” feature of my Microsoft 

Office Word software. 

/s/ Michele L. Walter

MICHELE L. WALTER

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CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who have consented to electronic 

service are being served with a copy of the foregoing Final Brief for Respondent

via the Court’s CM/ECF system on June 16, 2015. 

 

/s/ Michele L. Walter

MICHELE L. WALTER

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