In The Supreme Court of the United States

No. In The Supreme Court of the United States THE NATIONAL ASSOCIATION OF HOME BUILDERS, v. Petitioner, THE SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT; THE GOVERNING BOARD OF THE SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT; ENVIRONMENTAL DEFENSE; SIERRA CLUB, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI THOMAS J. WARD AMY C. CHAI National Association of Home Builders 1201 15th Street, N.W. Washington, D.C. 20005 (202) 266-8200 June 16, 2011 ROBERT D. THORNTON* PAUL S. WEILAND ROBERT C. HORTON Nossaman LLP 18101 Von Karman Ave Suite 1800 Irvine, CA 92612 (949) 833-7800 rthornton@nossaman.com *Counsel of Record

i QUESTION PRESENTED Clean Air Act section 209(e)(2)(A) preempts state regulations that constitute any standard or other requirement relating to the control of emissions from used nonroad construction equipment and new nonroad construction equipment 175 horsepower and larger. Rule 9510, promulgated by the San Joaquin Valley Unified Air Pollution Control District, requires that exhaust emissions for construction equipment greater than fifty (50) horsepower used or associated with [a] development project shall be reduced by... 20% of the total NOx [oxides of nitrogen] emissions, and... 45% of the total PM10 [particulate matter less than 10 microns] exhaust emissions from the statewide average of such emissions. The Question Presented is: Does Clean Air Act section 209(e)(2)(A) preempt Rule 9510 with respect to used nonroad construction equipment?

ii PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioner National Association of Home Builders ( NAHB ) was the plaintiff and appellant below. Respondent the San Joaquin Valley Unified Air Pollution Control District and the Governing Board of the San Joaquin Valley Unified Air Pollution Control District ( Air District ) were defendants and appellees below. Environmental Defense and the Sierra Club intervened on behalf of the defendants. Pursuant to S.Ct. Rule 29.6, petitioner NAHB states that it is a non-profit 501(c)(6) corporation incorporated in the State of Nevada, with its principal place of business in Washington, D.C. NAHB represents the interests of home builders and home remodelers, and other companies working in closely related fields within the housing industry. NAHB has approximately 160,000 members encompassing individuals and firms that develop and finance residential, commercial, and industrial projects. NAHB has member companies in all 50 states, the District of Columbia, and Puerto Rico, and over 800 affiliated local and state associations throughout the Nation. NAHB has no corporate parents, subsidiaries or affiliates, and no publicly traded stock. No publicly traded company has a ten percent or greater ownership interest in NAHB.

iii TABLE OF CONTENTS Page(s) QUESTION PRESENTED... i PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT... ii OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 2 INTRODUCTION... 5 STATEMENT OF THE CASE... 8 I. THE CLEAN AIR ACT... 8 II. A. The Primacy of Federal Regulation of Mobile Sources... 8 B. The 1990 Clean Air Act Amendments Authorize Federal Regulation of Nonroad Construction Equipment and Preempt State and Local Regulations... 10 C. State Regulations of Indirect Sources... 12 RULE 9510 OF THE SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT S INDIRECT SOURCE REVIEW PROGRAM... 13 III. PROCEEDINGS BELOW... 14

iv TABLE OF CONTENTS (cont.) Page(s) REASONS FOR GRANTING THE WRIT OF CERTIORARI... 16 I. THE NINTH CIRCUIT S DECISION IN NAHB CONFLICTS WITH THIS COURT S CLEAN AIR ACT PREEMPTION ANALYSIS IN SOUTH COAST... 16 II. A. Rule 9510 6.1.1 Imposes Standards or Other Requirements Relating to the Control of Emissions from Used Nonroad Construction Equipment... 16 B. Contrary to the Panel Majority s Holding, Rule 9510 6.1.1 Regulates Nonroad Construction Equipment Greater than 50 HP, Not Construction Sites... 20 THE NINTH CIRCUIT S DECISION IN NAHB CONFLICTS WITH THIS COURT S RULE AGAINST ADDING WORDS TO A STATUTE WHERE THERE IS NO AMBIGUITY OR IRRECONCILABLE INCONSISTENCY... 23 A. The Ninth Circuit Improperly Added Words to the Clean Air Act... 23 B. Contrary to the Panel Majority s Reasoning, Preemption of Rule 9510 6.1.1 Does Not Preclude Indirect Source Review of Construction Sites... 25

v III. TABLE OF CONTENTS (cont.) Page(s) THE QUESTION PRESENTED IS AN ISSUE OF NATIONAL IMPORTANCE BECAUSE THE NINTH CIRCUIT S DECISION EVISCERATES NONROAD PREEMPTION, ALLOWING AN ANARCHIC PATCH- WORK OF STATE AND LOCAL EMISSIONS STANDARDS FOR USED NONROAD ENGINES AND VEHICLES... 28 CONCLUSION... 32 TABLE OF APPENDICES A. December 7, 2010 Opinion of the United States Court of Appeals for the Ninth Circuit... 1a B. September 18, 2008 Decision on Cross Summary Judgment Motion of the United States District Court for the Eastern District of California... 35a C. March 18, 2011 Order Denying Petition for Rehearing EnBanc of the United States Court of Appeals for the Ninth Circuit... 93a D. October 17, 2008 Notice of Appeal to the United, States Court of Appeals for the Ninth Circuit Court of Appeal issued by the United States District Court for the Eastern District of California... 95a

vi TABLE OF CONTENTS (cont.) Page(s) E. September 19, 2008 Court Entry Judgment of United States District Court for the Eastern District of California.... 100a F. June 6, 2007 Complaint for Declaratory and Injunctive Relief to the United States District Court for the Eastern District of California... 101a G. San Joaquin Valley Unified Air Pollution Control Dist., Indirect Source Review (ISR) Rule 9510 (December 15, 2005)... 148a H. 42 U.S.C. 7543... 188a

vii TABLE OF AUTHORITIES Page(s) Cases 62 Cases of Jam v. United States, 340 U.S. 593 (1951)... 24 Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981)... 24 Bates v. United States, 522 U.S. 23 (1997)... 24 Bd. of Educ. of the Hendrick Hudson Central Sch. Dist., Westchester County v. Rowley, 458 U.S. 176 (1982)... 23-24 Cal. Tahoe Reg l Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753 (D. Nev. 1980). 26 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)... 1 CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)... 19 Dep t of Housing and Urban Dev. v. Rucker, 535 U.S. 125 (2002)... 19 Egelhoff v. Egelhoff, 532 U.S. 141 (2001)... 19 Engine Mfrs. Ass n v. U.S. E.P.A., 88 F.3d 1075 (D.C. Cir. 1996)... 9, 10, 12, 17 Engine Mfrs. Ass n v. South Coast Air Quality Mgmt. Dist., 541 U. S. 246 (2004)... passim Inhabitants of Twp. of Montclair v. Ramsdell, 107 U.S. 147 (1883)... 19 Lake County v. Rollins, 130 U.S. 662 (1889)... 24

viii TABLE OF AUTHORITIES (cont.) Page(s) Massachusetts v. EPA, 549 U.S. 497 (2007)... 19 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)... 19 Motor Vehicle Mfrs. Ass n of U.S., Inc. v. N.Y. State Dep t of Envtl. Conservation, 17 F.3d 521 (2d Cir. 1994)... 9, 10 Nat l Ass n of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., 627 F.3d 730 (9th Cir. 2010)... passim Nat l Ass n of Home Builders v. The San Joaquin Valley Unified Air Pollution Control District, 2008 WL 4330449 (E.D. Cal. Sept. 19, 2008)... 1 Pacific Merch. Shipping Ass n v. Goldstene, 517 F.3d 1108 (9th Cir. 2008)... passim Park N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985)... 23 Rowe v. New Hampshire Motor Transp. Ass n, 552 U.S. 364 (2008)... 19 Shea v. Vialpando, 416 U.S. 251 (1974)... 19 Sierra Club v. Larson, 2 F.3d 462 (1st Cir. 1993)... 21 U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736 (2004)... 25 United States v. Cooper Corp., 312 U.S. 600 (1941)... 25

ix TABLE OF AUTHORITIES (cont.) Page (s) United States v. Menasche, 348 U.S. 528 (1955)... 19 United States v. Sinerius, 504 F.3d 737 (9th Cir. 2007)... 19-20 CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS Constitution U.S. Const., art. VI, cl. 2... 2 Federal Statutes 28 U.S.C. 1254(1)... 2 28 U.S.C. 1331... 1 42 U.S.C. 7401... 5 42 U.S.C. 7408... 8 42 U.S.C. 7409... 8 42 U.S.C. 7410(a)(5)... 3, 6 42 U.S.C. 7410(a)(5)(A)... 12 42 U.S.C. 7410(a)(5)(A)(i)... 26 42 U.S.C. 7410(a)(5)(B)... 31 42 U.S.C. 7410(a)(5)(C)... passim 42 U.S.C. 7410(a)(5)(D)... 12, 13, 21 42 U.S.C. 7507... 8 42 U.S.C. 7521... 9

x TABLE OF AUTHORITIES (cont.) Page(s) 42 U.S.C. 7543... 3, 8, 14 42 U.S.C. 7543(b)(1)... 9 42 U.S.C. 7543(b)(1)(A)... 11 42 U.S.C. 7543(b)(1)(C)... 11 42 U.S.C. 7543(e)... 2, 10 42 U.S.C. 7543(e)(1)... 10, 19 42 U.S.C. 7543(e)(1)(A)... 10 42 U.S.C. 7543(e)(2)... 11 42 U.S.C. 7543(e)(2)(A)... 5, 11 17, 19 42 U.S.C. 7543(e)(2)(A)(i)... 11 42 U.S.C. 7543(e)(2)(A)(iii)... 11 42 U.S.C. 7547... 8, 9 42 U.S.C. 7573... 31 42 U.S.C. 7671q... 5 Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (codified as amended at 42 U.S.C. 7507(b)(2)(2011))... 9 Pub. L. 101-549 222(a), 104 Stat. 2399, (codified at 42 U.S.C. 7547 (2011))... 10 Consol. Appropriations Act, 2004, 428(b) Pub. L. No. 108-199, 118 Stat. 418 (2004)... 11 Federal Regulations 40 C.F.R. 1074.110(b)... 12 38 Fed. Reg. 31,232 (Nov. 12, 1973)... 26

xi TABLE OF AUTHORITIES (cont.) Page(s) 76 Fed. Reg. 26,609 (May 9, 2011)... 1 State Regulations San Joaquin Valley Unified Air Pollution Control Dist., Rule 9510 3.11... 13-14 San Joaquin Valley Unified Air Pollution Control Dist., Rule 9510 6.1.1... passim San Joaquin Valley Unified Air Pollution Control Dist., Rule 9510 11.0... 13 OTHER 2A J. Sutherland, Statutory Construction 47.36 (Sands ed. 1973)... 24 Sacramento Metro. Air Quality Mgmt. Dist., Concept Paper Rule 1052-Construction Mitigation (June 25, 2010), http://www.airquality.org/bod/ 2010/AugRule1052ConceptPaper.pdf... 29 Bay Area Air Quality Mgmt. Dist., Draft Bay Area 2010 Clean Air Plan, Volume II, Section D, Land Use and Local Impact Measures D-9 (Mar. 2010), http://www.baaqmd.gov/ ~/media/files/ Planning%20and%20Research/ Plans/2010%20Clean%20Air%20Plan/ Draft%202010%20CAP/ Vol2_SectionD _LUMs.ashx... 30 South Coast Air Quality Mgmt. Dist., Proposed Rule 2301-Control of Emissions from New or Redevelopment Projects, http://www.aqmd. gov/rules/proposed/2301/index.html... 30

xii TABLE OF AUTHORITIES (cont.) Page(s) Cal. Envtl. Prot. Agency Air Res. Control Bd., http://www.arb.ca.gov/capcoa/dismap.htm... 29 Webster s Second New International Dictionary 2455 (1945)... 5, 17

1 OPINIONS BELOW The opinion of the Ninth Circuit affirming the District Court s judgment is reported at 627 F.3d 730 and reprinted in the appendix hereto ( App. ) at 1a. 1 The opinion of the District Court granting summary judgment for the defendants and defendantintervenors and denying NAHB s cross-motion for summary judgment is available at 2008 WL 4330449, and is reprinted at App. 35a. JURISDICTION The judgment of the Court of Appeals was entered on December 7, 2010. NAHB s timely petition for rehearing en banc was denied on March 18, 2011. App. 93a. The jurisdiction of the courts below rests on 28 U.S.C. 1331 because Clean Air Act preemption is an issue arising under the U.S. 1 On May 9, 2011, the U.S. Environmental Protection Agency ( EPA ) issued a final rule approving Rule 9510 for inclusion in the California State Implementation Plan. 76 Fed. Reg. 26,609 (May 9, 2011). EPA did not opine on the question of nonroad preemption. Instead, it cited and relied upon the Ninth Circuit s opinion below which is at issue in this Petition. Id. at 26,610 ( Given the appellate court s decision, we believe that... our approval of Rule 9510 is consistent with CAA section 110(a)(2)(E).... ). Thus, EPA s final rule does not qualify for judicial deference on the issue of preemption. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984) (deference to agency warranted where agency issues regulatory interpretation under an express delegation of authority to elucidate a gap in the statutory language). Even if EPA had issued a regulatory interpretation of section 209(e)(2)(A), no deference would be warranted because there is no gap in that provision for the agency to fill.

2 Constitution and federal law. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Supremacy Clause of the United States Constitution provides, in relevant part: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const., art. VI, cl. 2. Section 209(e) of the federal Clean Air Act, 42 U.S.C. 7543(e), provides, in relevant part: (e) Nonroad engines or vehicles (1) Prohibition on certain State standards No State or any political subdivision thereof shall adopt or attempt to enforce any standard or other requirement relating to the control of emissions from either of the following new nonroad engines or nonroad vehicles subject to regulation under this chapter (A) New engines which are used in construction equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower. (B) New locomotives or new engines used in locomotives. Subsection (b) of this section shall not apply for purposes of this paragraph. (2) Other nonroad engines or vehicles

3 (A) In the case of any nonroad vehicles or engines other than those referred to in subparagraph (A) or (B) of paragraph (1), the Administrator shall, after notice and opportunity for public hearing, authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.... 2 Section 110(a)(5) of the federal Clean Air Act, 42 U.S.C. 7410(a)(5), provides, in relevant part: (A)(i) Any State may include in a State implementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source review program. The Administrator may approve and enforce, as part of an applicable implementation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan. [... ] (C) For purposes of this paragraph, the term indirect source means a facility, building, structure, installation, real property, road, or 2 Section 209, 42 U.S.C. 7543, is set forth in its entirety in the Appendix. App. 188a.

4 highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other facilities subject to any measure for management of parking supply (within the meaning of subsection (c)(2)(d)(ii) of this section), including regulation of existing offstreet parking but such term does not include new or existing on-street parking. Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of this paragraph. (D) For purposes of this paragraph the term indirect source review program means the facility-by-facility review of indirect sources of air pollution, including such measures as are necessary to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution, the emissions from which would cause or contribute to air pollution concentrations- - (i) exceeding any national primary ambient air quality standard for a mobile sourcerelated air pollutant after the primary standard attainment date, or (ii) preventing maintenance of any such standard after such date. (E) For purposes of this paragraph and paragraph (2)(B), the term transportation control measure does not include any measure which is an indirect source review program.

5 San Joaquin Valley Unified Air Pollution Control Dist., Indirect Source Review (ISR) Rule 9510 (December 15, 2005), reprinted at App. 148a. INTRODUCTION This case presents the question whether numeric emissions limits imposed by a local air quality agency constitute standards or other applicable requirements relating to the control of emissions which are preempted under section 209(e)(2)(A) of the Clean Air Act, 42 U.S.C. 7401-7671q (the Act ). 42 U.S.C. 7543(e)(2)(A). By a 2-1 majority, a panel of the Ninth Circuit held that the emissions limits are not preempted standards or other requirements because they do not impose emissions limits on used nonroad construction equipment apart from their operation at construction sites. Nat l Ass n of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., 627 F.3d 730, 736-37 (9th Cir. 2010) ( NAHB ) App. 1a. Certiorari should be granted for three reasons. First, the Ninth Circuit s decision conflicts with this Court s holding in Engine Mfrs Ass n v. South Coast Air Quality Management Dist., 541 U.S. 246, 252-53 (2004) ( South Coast ). In South Coast, this Court looked to the plain language of section 209(a) of the Clean Air Act and held that the term standard in section 209 means that which is established by authority, custom, or general consent, as a model or example; criterion; test. Id. (quoting Webster s Second New International Dictionary 2455 (1945)).

6 The emissions limits imposed by Rule 9510 6.1.1 establish a criterion or test that nonroad construction equipment must meet, namely, their emissions of NOx and PM10 must be reduced by 20% and 45% of the applicable statewide averages. Thus, a writ of certiorari should be granted to harmonize Ninth Circuit precedent with this Court s holding in South Coast. S.Ct. Rule 10(c). Second, the Ninth Circuit s decision conflicts with this Court s rule against inserting words into an unambiguous statute. The Ninth Circuit panel majority acknowledged that the emissions limits in Rule 9510 6.1.1 are standards or requirements relating to the control of emissions from nonroad construction equipment. App. 14a-16a. Nevertheless, the panel majority held that the emissions standards or requirements are not preempted because they are part of a valid Indirect Source Review program. App. 18a (citing 42 U.S.C. 7410(a)(5)). 3 Section 110(a)(5)(C) expressly excludes a regulation like Rule 9510 6.1.1 from qualifying as an Indirect Source Review program because it expressly excludes from the definition of indirect source direct sources of emissions such as nonroad construction equipment while operating at or within indirect sources such as construction sites. 42 3 The Act defines indirect sources as facilities which, by their nature attract[], or may attract, mobile sources of pollution. 42 U.S.C. 7410(a)(5)(C).

7 U.S.C. 7410(a)(5)(C). The panel majority sidestepped this plain language by inserting words into the Act -- stating that Rule 9510 does not regulate emissions from nonroad construction equipment apart from [Rule 9510 s] regulation of an indirect source [i.e., a construction site]. App. 16a. The phrase apart from... regulation of an indirect source does not appear in section 110(a)(5)(C) or elsewhere in the Act. The panel majority erroneously concluded that without inserting apart from into section 110(a)(5)(C), any Indirect Source Review regulation would not be possible. Id. This is manifestly false. Under the plain language of section 110(a)(5)(C), air agencies are free to adopt such measures as exclusive bus/carpool lanes, bus/carpool matching, parking supply management, mass transit incentives for employees, and parking surcharges. 42 U.S.C. 7410(a)(5)(C). Unlike Rule 9510, such indirect source regulations do not impose emissions standards or other requirements relating to the control of emissions from mobile sources. Third, the question presented concerns a matter of overriding national importance. S.Ct. Rule 10(c). By holding that the emissions limits in Rule 9150 are not preempted under section 209(e)(2)(A), the Ninth Circuit has opened the door for every air agency in the country to adopt and enforce its own emissions limits applicable to emissions from used nonroad construction equipment. To avoid preemption, an air agency need only adopt standards or requirements that apply to nonroad equipment while operating at or within an indirect source.

8 Indeed, under NAHB, air agencies are now free to adopt emissions limits relating to emissions from many other forms of nonroad equipment, including farm equipment, locomotives, ship engines, auxiliary engines aboard ships, airport ground support equipment, and aircraft engines. Under the Ninth Circuit s reasoning, so long as air agencies impose emissions limits on such equipment while operated at indirect sources such as farms, railroads, harbors and airports, the standards or requirements are not preempted by section 209(e)(2)(A) of the Act. This reasoning eviscerates the basic structure of the Act which is designed to preclude an anarchic patchwork of state regulation of mobile sources. Thus, the petition for writ of certiorari should be granted to correct an error that has nationwide implications for commercial activities subject to exclusive federal regulatory control under the Act. STATEMENT OF THE CASE I. The Clean Air Act. A. The Primacy of Federal Regulation of Mobile Sources. The Clean Air Act authorizes the states to regulate stationary sources of air emissions to achieve federally adopted national ambient air quality standards (the NAAQS ). 42 U.S.C. 7408-7409. In sharp contrast to its treatment of stationary sources, with very narrow exceptions, the Act reserves exclusive authority in the federal government to regulate mobile sources of air pollution. 42 U.S.C. 7507, 7543, 7547. Congress

9 originally reserved to the federal government regulatory authority over new motor vehicles and motor vehicle engines to prevent an anarchic patchwork of regulatory programs for mobile sources of air emissions. Pacific Merch. Shipping Ass n v. Goldstene, 517 F.3d 1108, 1110 (9th Cir. 2008) (quoting Engine Mfrs. Ass n v. U.S. E.P.A., 88 F.3d 1075 at 1078, 1079 (D.C. Cir. 1996)) ( EMA ). Specifically, the Act authorizes the federal government (through EPA) to establish and enforce emissions control standards and requirements for new motor vehicles and motor vehicle engines, 42 U.S.C. 7521; and for new nonroad vehicles and nonroad engines used in construction and farm equipment, as well as new locomotives and locomotive engines. 42 U.S.C. 7547. Since 1967, the Act has included a narrow exception that authorized California to apply to EPA for a waiver of federal preemption of regulation of motor vehicle emissions. 42 U.S.C. 7543(b)(1). In 1977, Congress amended section 209 to allow other states that are not in compliance with the national ambient air quality standards to piggyback onto California s [new motor vehicle] standards, but only if California has received a waiver for its standards and the state s standards are identical to the California standards for which a waiver has been granted for such model year. Motor Vehicle Mfrs. Ass n of U.S., Inc. v. N.Y. State Dep t of Envtl. Conservation, 17 F.3d 521, 525 (2d Cir. 1994) ( MVMA ) (quoting the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (1977) (codified as amended at 42 U.S.C. 7507(b)(2) (2011))). Congress expressly addressed whether

10 federal control over motor vehicle emissions also applies to emissions from nonroad engines and vehicles in the Clean Air Act Amendments of 1990. B. The 1990 Clean Air Act Amendments Authorize Federal Regulation of Nonroad Construction Equipment and Preempt State and Local Regulations. The 1990 amendments to the Clean Air Act expressly extended federal regulatory authority to nonroad mobile sources of air emissions. Pub. L. 101-549 222(a), 104 Stat. 2399, (codified at 213, 42 U.S.C. 7547 (2011)). In addition, in 1990 Congress included broad preemption of state regulation of nonroad vehicles and engines. 42 U.S.C. 7543(e); EMA, 88 F.3d at 1088. The preemption provisions of the Act are the cornerstone of... the portion of the CAA that governs mobile pollution sources. EMA, 88 F.3d at 1079 (quoting MVMA, 17 F.3d at 526). Section 209(e)(1) absolutely preempts the states or their subdivisions from adopting or attempting to enforce any standard or other requirement relating to the control of emissions from... [n]ew engines which are used in construction equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower. (emphasis added). 42 U.S.C. 7543(e)(1)(A). The statute expressly provides that the preemption waiver provision in section 209(b) shall not apply for purposes of this paragraph. Id. 7543(e)(1). Thus, nonroad mobile source preemption is broader than preemption of state regulation of new motor vehicles.

11 Similarly, Section 209(e)(2) preempts state regulation of emissions from (1) new nonroad engines and vehicles 175 horsepower and larger and (2) any used nonroad engine or vehicle. 42 U.S.C. 7543(e)(2). With respect to nonroad engines and vehicles subject to section 209(e)(2), the Act provides that the EPA Administrator may authorize the State of California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. Id. 7543(e)(2)(A). The EPA Administrator may not grant such authorization if she concludes that California s determination is arbitrary and capricious, that California does not need the standards to meet compelling and extraordinary conditions, or that they are not consistent with section 209. Id. 7543(e)(2)(A)(i)-(iii); compare id. 7543(b)(1)(A)-(C) (analogous provisions for the EPA Administrator s review of a California request to waive new motor vehicle preemption). 4 4 Under section 209(e)(2)(B), other states with SIP provisions for nonattainment areas may opt into an authorized California nonroad standard relating to the control of used nonroad construction and farm equipment and new equipment 175 horsepower or larger. However, other states may not adopt authorized California standards for nonroad spark-ignition engines below 50 horsepower after September 1, 2003. Consol. Appropriations Act, 2004, Pub. L. No. 108-199, 428(b), 118 Stat. 418-19 (2004); 40 C.F.R. 1074.110(b).

12 Therefore, it is clear from the text and structure of the statute that the Clean Air Act (1) absolutely preempts state regulation of new nonroad engines and vehicles smaller than 175 horsepower, and (2) requires California to obtain EPA authorization if the State seeks to regulate any used nonroad construction equipment or any new nonroad construction equipment 175 horsepower or larger. EMA, 88 F.3d at 1088; see also Pacific Merch., 517 F.3d at 1113 (citing EMA, 88 F.3d at 1087-88). C. State Regulation of Indirect Sources. In contrast to the almost exclusive federal jurisdiction over mobile sources, the Act allows states to regulate indirect source[s] of air emissions such as parking lots and parking garages. 42 U.S.C. 7410(a)(5)(A)-(C). Congress defined indirect source[s] as facilities which, by their nature attract[], or may attract, mobile sources of pollution such as parking garages. Id. 42 U.S.C. 7410(a)(5)(C). Indirect source review programs are designed to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution that would contribute to an exceedance of, or prevent the maintenance of, any NAAQS. Id. 7410(a)(5)(D) (emphasis added). However, [d]irect emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of [an indirect source review program]. Id. 7410(a)(5)(C) (emphasis added). In other words, unlike stationary sources and mobile sources, indirect sources are not regulated based on their own emissions, but are instead

13 II. regulated based on the emissions from the mobile sources that they may attract. Id. 7410(a)(5)(D). A mobile source does not become part of an indirect source simply by operating at, within, or in association with an indirect source. Id. 7410(a)(5)(C). Accordingly, any mobile source operating at an indirect source remains a mobile source subject to section 209 of the Act. Thus, except where California receives a waiver or authorization from EPA, states are preempted from adopting standards or other requirements relating to the control of mobile source emissions as part of an Indirect Source Review program or otherwise. RULE 9510 OF THE SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT S INDIRECT SOURCE REVIEW PROGRAM. The San Joaquin Valley Unified Air District, an agency of the State of California (the Air District ), adopted Rule 9510 on December 15, 2005, and it became effective March 1, 2006. App. 148a; see also Rule 9510 11.0; App. 187a. Rule 9510 mandates 20% and 45% reductions in oxides of nitrogen ( NOx ) and particulate matter of less than 10 microns ( PM10 ) emissions, respectively, from the exhaust emissions for [both new and used] construction equipment greater than fifty (50) horsepower used or associated with the development project.... Rule 9510 6.1.1; App. 170a. Construction emissions include any NOx or exhaust PM10 emissions resulting from the use of internal combustion engines related to construction activity, which is under the control of the applicant

14 through either ownership, rental, lease agreements, or contract. Rule 9510 3.11; App. 152a. III. PROCEEDINGS BELOW. On June 6, 2007, NAHB filed a Complaint challenging certain provisions in Rule 9510 on the grounds that the limits the Rule imposes on emissions of NOx and PM10 are preempted by section 209 of the Clean Air Act. 42 U.S.C. 7543; App. 101a. NAHB argued that the plain language of section 209 of the Act preempts the emissions limits that Rule 9510 imposes on new and used nonroad construction equipment used in projects subject to the Rule, and it also preempts Rule 9510 s limits on the operational emissions of motor vehicles and nonroad engines and vehicles that operate at projects subject to the rule after construction is completed. 5 The District Court, without conducting a hearing, granted the Air District s and Intervenor- Defendants cross-motions for summary judgment and denied NAHB s cross-motion for summary 5 On appeal in the Ninth Circuit, and in this petition for a writ of certiorari, NAHB did not, and does not challenge the limits on operational emissions. Also, the question presented in this petition is limited to preemption under section 209(e)(2) relating to emissions from used nonroad construction equipment. Therefore, preemption of the emissions limits in Rule 9510 that relate to operational emissions and section 209(e)(1) preemption of standards or other requirements relating to emissions from new nonroad construction equipment smaller than 175 horsepower are not discussed here.

15 judgment on September 18, 2008. App. 35a. The District Court concluded that the nonroad construction equipment emissions limits in Rule 9510 are not preempted by section 209(e) because the emissions limits imposed by Rule 9510 do not apply to emissions from individual engines, but to construction sites themselves, and that Rule 9510 is a valid in-use requirement. App. 91a. Judgment was entered on September 19, 2008. App. 100a. On October 17, 2008, NAHB filed its Notice of Appeal challenging the District Court s judgment as it relates to preemption of nonroad construction equipment emissions limits. App. 95a. In a 2-1 opinion, the Court of Appeals upheld the District Court s judgment. App. 1a. The Court of Appeals, however, did not adopt the District Court s reasoning. Instead, the Court of Appeals held that the emissions limits in Rule 9510 6.1.1 are not preempted because the emissions standards or requirements in Rule 9510 6.1.1 do not regulate emissions from nonroad construction equipment apart from their operation at construction sites subject to the rule. App. 16a ( Rule 9510 does not target vehicles or engines. It targets emissions, and requires emissions reductions, from a development site as a whole.... Because Rule 9510 is targeted at a development site as a whole, its standard or requirement relates to emissions from an indirect source, not from nonroad vehicles or engines. ). In his dissenting opinion, Judge Smith correctly pointed out that Rule 9510 specifically affects construction equipment over 50 horsepower located on or associated with a regulated development site.

16 App. 32a (Smith, J., dissenting in part). explained: The majority ignores the plain language of Rule 9510 in concluding otherwise--in its view, the Rule does not target vehicles or engines. It requires emissions reductions, from a development site as a whole.... Yet, section 6.1.1.1 unequivocally requires a reduction in exhaust emissions for construction equipment... used or associated with [a] development project. The applicable unit of regulation here is the fleet of vehicles rather than the site. He App. 32a (Smith, J., dissenting in part) (emphasis original). NAHB requested rehearing en banc with respect to the Ninth Circuit s holding in section IV of its opinion. The Court of Appeals denied NAHB s request for rehearing en banc on March 18, 2011. App. 93a. REASONS FOR GRANTING THE WRIT OF CERTIORARI I. THE NINTH CIRCUIT S DECISION IN NAHB CONFLICTS WITH THIS COURT S CLEAN AIR ACT PREEMPTION ANALYSIS IN SOUTH COAST. A. Rule 9510 6.1.1 Imposes Standards or Other Requirements Relating to the Control of Emissions from Used Nonroad Construction Equipment. Under section 209(e)(2)(A) of the Act, California may not adopt or enforce standards or other

17 requirements relating to the control of emissions from used nonroad construction equipment unless it first applies for and receives authorization from the EPA Administrator to do so. 42 U.S.C. 7543(e)(2)(A); EMA, 88 F.3d at 1088; Pacific Merch., 517 F.3d at 1113. It is undisputed that California has made neither the required application nor the required findings and the EPA Administrator has not authorized California to adopt Rule 9510 6.1.1 pursuant to the requirements of section 209(e)(2)(A)-(B)(i)-(iii). See App. 33a, n.4. (Judge Smith dissenting in part). In Engine Mfrs. Ass n v. South Coast Air Quality Mgmt. Dist., 541 U. S. 246 (2004), the Supreme Court held that the Clean Air Act preempts a local air agency s rules that require operators of fleets of vehicles to purchase or lease certain low-emissions vehicles when adding or replacing vehicles in their fleets. South Coast, 541 U.S. at 249-55. Specifically, the Court looked to the plain language of Clean Air Act section 209(a), which preempts any standard relating to the control of emissions from new motor vehicles, and held that a standard for purposes of mobile source preemption is that which is established by authority, custom, or general consent, as a model or example; criterion; test. Webster s Second New International Dictionary 2455 (1945). South Coast, 541 U.S. at 252-53. In South Coast, the Court stressed that the preemptive language in section 209(a) is categorical, and does not admit of an exception for standards imposed through purchase restrictions rather than directly upon manufacturers. Id. at 256.

18 The Court made it clear that it does not matter that the fleet purchase requirements at issue did not regulate engines or vehicles directly: A command, accompanied by sanctions that certain purchasers may buy only vehicles with particular emissions characteristics is as much an attempt to enforce a standard as a command, accompanied by sanctions, that a certain percentage of a manufacturer s sales volume must consist of such vehicles. Id. at 255. Thus, the Court rejected the argument that the term standard in section 209 applies only to manufacturing mandates that required individual engines to meet tailpipe emissions limits. Yet, the Ninth Circuit has employed the same faulty reasoning that this Court expressly rejected in South Coast to uphold Rule 9510 6.1.1. Specifically, the Ninth Circuit held that the emissions standards only indirectly apply to nonroad construction equipment. App. 24a. This Court s plain language dictionary definition of standard in section 209(a) applies with equal force to the term standard in section 209(e). See Pacific Merch. 517 F.3d at 1114 (observing of the Supreme Court s holding in South Coast that [a]lthough it defined standard under section 209(a), the Court indicated that its definition of standard is applicable throughout Title II of the Clean Air Act, which includes 209(e). (citation omitted)). To the extent it differs from section 209(a), the

19 preemptive language in section 209(e) is even broader, since it preempts any standard or other requirement relating to the control of specified nonroad engine emissions. 42 U.S.C. 7543(e)(1)- (2)(A). Clearly, the phrase standard or other requirement is broader than the term standard, otherwise the phrase or other requirement would be reduced to mere surplusage. As this Court has stated, [i]t is our duty to give effect, if possible, to every clause and word of a statute. United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Inhabitants of Twp. of Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). 6 6 See, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (the plain language of an express preemption clause necessarily contains the best evidence of Congress preemptive intent ); Dep t of Housing and Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002) ( [A]ny... has an expansive meaning, that is, one or some indiscriminately of whatever kind. ); Massachusetts v. EPA, 549 U.S. 497, 528-529 (2007) (Clean Air Act s sweeping definition of air pollutant is underscore[d]... through the... use of the word any ); Shea v. Vialpando, 416 U.S. 251, 260 (1974) (determining that where Congress uses the term any, it is indicating that there is no limitation, apart from that of reasonableness on the statute s applicability); Rowe v. New Hampshire Motor Transport Ass n, 552 U.S. 364, 368 (2008) (interpreting scope of preemption broadly where a provision of the Federal Aviation Administration Authorization Act of 1994 forbids States to enact or enforce a law... related to a price, route, or service of any motor carrier ) (emphasis added); Egelhoff v. Egelhoff, 532 U.S. 141, 146 (2001); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) ( [T]he words [ relating to ] express a broad pre-emptive purpose. ); see also United States v. Sinerius, 504 Continued on the next page

20 Rule 9510 6.1.1 provides that exhaust emissions for construction equipment greater than fifty (50) horsepower used or associated with [a] development project shall be reduced by the following amounts from the statewide average... 20% of the total NOx emissions, and... 45% of the total PM10 exhaust emissions. Rule 9510 6.1.1 (emphasis added); App. 170a. Thus, as Judge Smith recognized in his dissent below (App. 25a) the plain language of Rule 9510 6.1.1 establishes standards and other requirements relating to the control of emissions from nonroad construction equipment because it establishes a criterion or test that nonroad construction equipment must meet. App. 34a; South Coast, 541 U.S. at 252-53. The language in section 209(e)(2)(A), like the language in section 209(a), is categorical, and admits of no exception for standards or other requirements that only indirectly relate to emissions from nonroad construction equipment. Thus, under South Coast, Rule 9510 6.1.1 is preempted. B. Contrary to the Panel Majority s Holding, Rule 9510 6.1.1 Regulates Nonroad Construction Equipment Greater than 50 HP, Not Construction Sites. The panel majority argues that Rule 9510 6.1.1 is authorized by section 110(a)(5) because it constitutes an Indirect Source Review program. Continued from the previous page F.3d 737, 743 (9th Cir. 2007) ( relating to broadens a statute s scope).

21 App. 15a, 24a. In the panel majority s view, the emissions standard or requirement in Rule 9510 6.1.1 does not target vehicles or engines. It targets emissions, and requires emissions reductions, from a development site as a whole. App. 16a. This holding ignores not only the plain language of the Act, it also ignores the plain language of Rule 9510 6.1.1. Rule 9510 6.1.1 expressly imposes emissions limits on nonroad construction equipment greater than 50 horsepower while operating at construction sites subject to Rule 9510. App. 169a. Thus, 6.1.1 imposes standards or other requirements on the nonroad construction equipment, not construction sites, without the requisite EPA authorization. Indirect source[s] are facilities which, by their nature attract[], or may attract, mobile sources of pollution. 42 U.S.C. 7410(a)(5)(C). Such term includes parking lots, parking garages and other facilities subject to any measure for management of parking supply.... Id. Indirect Source Review programs are designed to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution that would contribute to an exceedance of, or prevent the maintenance of, any national ambient air quality standard. Id. 7410(a)(5)(D) (emphasis added); see also Sierra Club v. Larson, 2 F.3d 462, 467 (1st Cir. 1993) (describing indirect sources as magnets for vehicles rather than the vehicles themselves (citing H.R. Rep. No. 294, 95th Cong., 219-27 (1977), reprinted in 1977 U.S.C.C.A.N 1077, 1298-1306)).

22 Construction sites are themselves indirect sources insofar as they attract mobile sources of emissions. But as Judge Smith recognized: Rule 9510 [ 6.1.1] specifically affects construction equipment over 50 horsepower located on or associated with a regulated development site. The majority ignores the plain language of Rule 9510 in concluding otherwise.... [Rule 9510] section 6.1.1.1 unequivocally requires a reduction in exhaust emissions for construction equipment... used or associated with [a] development project. The applicable unit of regulation here is the fleet of vehicles rather than the site. App. 32a (Smith, J., dissenting in part) (emphasis original). As the Ninth Circuit held in Pacific Merch., preemption must be determined based on the plain language of the Clean Air Act as well as the plain language of the state or local regulation in question. Pacific Merch., 517 F.3d at 1115. The marine vessel rules at issue in Pacific Merch. required that when operating within 24 miles of the California coast, marine auxiliary engines emit no more than the amount of emissions they would emit if using specified low-sulfur diesel fuel. The Ninth Circuit rejected the attempt by the California Air Resources Board to characterize the rules as valid fuel-switching mandates because operators of marine vessels would be presumed to comply with the emissions limits if they switched their auxiliary marine engines to low-sulfur fuel. Pacific Merch.,

23 517 F.3d at 1115. The Ninth Circuit held that the rules did not constitute fuel-switching mandates because the plain language of the Rules regulates emissions, not fuel. Id. (emphasis added). Similarly, the plain language of Rule 9510 6.1.1 regulates emissions from construction equipment greater than 50 horsepower. Rule 9510 6.1.1; App. 170a. Unlike an Indirect Source Review program, it does not regulate overall emissions based on the number of trips or vehicle miles traveled in connection with regulated construction sites. Thus, Rule 9510 6.1.1 is not a valid indirect source regulation. II. THE NINTH CIRCUIT S DECISION IN NAHB CONFLICTS WITH THIS COURT S RULE AGAINST ADDING WORDS TO A STATUTE WHERE THERE IS NO AMBIGUITY OR IRRECONCILABLE INCONSISTENCY. A. The Ninth Circuit Improperly Added Words to the Clean Air Act. The Ninth Circuit decision conflicts with this Court s cardinal rule of statutory construction. Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. South Coast, 541 U. S. at 252 (quoting Park N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985)). When interpreting a statute, a court s problem is to construe what Congress has written. Bd. of Educ. of the Hendrick Hudson Central Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 190 n.11

24 (1982), (quoting 62 Cases of Jam v. United States, 340 U.S. 593, 596 (1951)) (internal quotations omitted). After all, Congress expresses its purpose by words. It is for us to ascertain-neither to add nor to subtract, neither to delete nor to distort. Id.; see also Bates v. United States, 522 U.S. 23, 29 (1997) (providing that the Court ordinarily resist[s] reading words or elements into a statute that do not appear on its face. ) Thus, a court should not add language to an unambiguous statute absent a manifest error in drafting or unresolvable inconsistency. Aronsen v. Crown Zellerbach, 662 F.2d 584, 590 (1981) (citing 2A J. Sutherland, Statutory Construction 47.36, at 164 (Sands ed. 1973)); Lake County v. Rollins, 130 U.S. 662, 670-71 (1889) (explaining that absent absurdity or contradiction, the words of the Constitution or a statute must be accepted, as neither the courts nor the legislature have the right to add to... or take from [them]. ). The panel majority claims that the language in section 110(a)(5)(C), which expressly excludes regulation of direct sources under the guise of an Indirect Source Review program, only makes sense if it is read to prohibit an indirect source review program from targeting direct sources at, within, or associated with, any indirect source apart from the program s regulation of an indirect source. App. 16a (italics original). The court further incorrectly explained that [i]f the proviso were read to prohibit a regulatory effect on direct sources while they are at an indirect source, there could be no indirect source review programs. Id. Thus, the Ninth Circuit grafted the phrase apart from the program s

25 regulation of an indirect source to resolve a perceived conflict between Clean Air Act section 209(e)(2) and 110(a)(5)(C) a conflict that does not exist. This conflicts with this Court s rule against adding words to an unambiguous statute. United States v. Cooper Corp., 312 U.S. 600, 605 (1941) (footnote omitted), superseded by statute on other grounds as stated in U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736 (2004) (providing that it is not the Court s function to engraft on a statute additions which [it] think[s] the legislature logically might or should have made. ) B. Contrary to the Panel Majority s Reasoning, Preemption of Rule 9510 6.1.1 Does Not Preclude Indirect Source Review of Construction Sites. The Ninth Circuit inserted language into section 110(a)(5)(C) because it concluded that if Rule 9510 6.1.1 were preempted by section 209(e)(2), then no Indirect Source Review program would be possible. App. 18a ( It would be odd if the Act took away from the states with one hand what it granted with the other. ). But the panel majority s conclusion ignores the plain language of Rule 9510 6.1.1, and is based on a misunderstanding of section 110(a)(5) of the Act. Section 110(a)(5)(C) of the Act contemplates the use of such measures as exclusive bus/carpool lanes, bus/carpool matching, parking supply management, mass transit incentives for employees, and parking surcharges because Indirect Source Review programs target the attractiveness of an indirect source to mobile emissions sources. 42 U.S.C.

26 7410(a)(5)(C). 7 None of these measures imposes emissions standards or other requirements relating to the control of emissions from mobile sources, directly or indirectly. Instead, they are designed to reduce numbers and distances of vehicle trips and modes of travel, and hence vehicle miles traveled, thereby reducing overall mobile source emissions. Thus, the plain language of section 110(a)(5) permits the Air District to adopt an Indirect Source Review program that would regulate construction sites by incentivizing use of transit or carpools by construction workers traveling to and from the site. But it does not permit the District to adopt 7 While this Court need go no further than the plain language of the Act, the legislative history of section 110(a)(5) in 1977 provides further evidence that Indirect Source Review programs are aimed at reducing vehicle trips and vehicle miles travelled, not emissions from vehicles while they operate at, within or in association with an indirect source. In 1973, EPA proposed to require states with nonattainment areas to adopt such measures as exclusive bus/carpool lanes, bus/carpool matching, parking supply management, mass transit incentives for employees, and parking surcharges. 38 Fed. Reg. 31,232, 31,233-31,234, 31,236-31,237 (Nov. 12, 1973). In response to the states protest of this invasion into their traditional authority over local land use, Congress eliminated EPA s authority to require states to adopt Indirect Source Review programs. 42 U.S.C. 7410(a)(5)(A)(i) ( Any State may include in a State implementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source review program. ); see also Cal. Tahoe Reg. Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753, 767 (D. Nev. 1980) (explaining legislative and litigation history of Indirect Source Review regulation).

27 emissions limits for nonroad construction equipment. Indeed, in the same paragraph that defines the term indirect source, the Act makes it clear that direct emission sources (such as construction equipment) cannot be regulated as indirect sources. Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of [an Indirect Source Review program]. 42 U.S.C. 7410(a)(5)(C) (emphasis added). Judge Smith noted in his dissent: If this provision has any meaning at all, it mandates that states cannot isolate direct emissions sources associated with an indirect source and deem them indirect sources subject to special regulation apart from the indirect source in the aggregate. Yet, this is precisely what Rule 9510 does-construction vehicles (direct emissions sources) are a subset of the project site (the indirect source). Construction vehicles do not fit the definition of an indirect source- a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution, id. - - so they cannot be regulated apart from the development project as a whole. App. 28a (footnote omitted) (Smith, J., dissenting in part).