\242\ S. Rep. No. 403, 90th Cong., 1st Sess. 33 (1967) (The
waiver of preemption is for California's ``unique problems and
pioneering efforts.''); 113 Cong. Rec. 30950, 32478 (``[T]he State
will act as a testing agent for various types of controls and the
country as a whole will be the beneficiary of this research.'')
(Statement of Sen. Murphy); MEMA I, 627 F.2d 1095, 1111 (DC Cir.
1979).
    \243\ MEMA I, 627 F.2d 1095, 1110.
    \244\ 38 FR 10317, 10324 (April 26, 1973). There is a general
pattern that emission control technology have been phased in through
use in California before their use nationwide. This pattern grew out
of early recognition that auto caused air pollution problems are
unusually serious in California. In response to the need to control
auto pollution, California led the nation in development of
regulations to require control of emissions. This unique leadership
was recognized by Congress in enacting Federal air pollution
legislation both in 1967 and 1970 by providing a special provision
to permit California to continue to impose more stringent emission
control requirements than applicable to the rest of the nation. In
1973 for example, the Administrator granted a waiver to California
that would force the use of emissions catalyst while setting
national standards that would not call for such technology. The
Administrator explained that ``[i]f the new technology is largely
restricted to California vehicles in 1975, it is the testimony of
both General Motors and Ford that all the processes needed to mass
produce catalyst cars can be tested out on a limited scale that
makes tighter quality control possible and allows extra energy to be
applied to the cure of any problems that may arise [ ]. Both
companies also stated that they would be able to focus their
energies to deal more effectively with such in use failures as did
occur if the first introduction of catalysts were in a limited
geographical area [ ].'' Notably, the Administrator was acting under
a somewhat analogous provision to section 202(a)(3)(A)(ii) by
calling for standards that ``reflect the greatest degree of
emissions control which is achievable by application of technology
which the Administrator determines is available giving appropriate
consideration to the cost of applying such technology within the
period of time available to manufacturers.'' Section 202(b)(5)(C).
    \245\ S. Rep. No. 90-403, at 33 (1967); 113 Cong. Rec. 30950,
32478 (``[T]he State will act as a testing agent for various types
of controls and the country as a whole will be the beneficiary of
this research.'') (Statement of Sen. Murphy); MEMA I, 627 F.2d 1095,
1111 (D.C. Cir. 1979).
    \246\ Ford Motor Co., v. EPA, 606 F.2d 1293, 1297 (D.C. Cir.
1979).
    \247\ 49 FR 18887, 18894 (May 3, 1984).
    \248\ 38 FR 10317, 10319 (April 26, 1973).
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    Additional statutory text and context further supports our
historical view. A plain reading of ``under this paragraph'' in section
202(a)(3)(C) means under paragraph 3.\249\ Paragraph 3 grants EPA the
authority to: (1) Establish heavy-duty engine and vehicles standards
for four listed pollutants in 202(a)(3)(A)(i), (2) classify or
categorize heavy-duty vehicles and engines in 202(a)(3)(A)(ii); (3)
revise earlier promulgated heavy-duty standards in 202(a)(3)(B); and
(4) establish standards for motorcycles in 202(a)(3)(E).\250\ EPA has
thus long read and applied in its regulatory practice ``under this
paragraph'' in section 202(a)(3)(C) as meaning under paragraph 3, i.e.,
section 202(a)(3).\251\ In other words, the lead time and stability
requirements apply to, and only to, certain regulations authorized
under paragraph 3. EPA has thus also long read section 202(a)(3)(C) as
the authority to provide the specified lead time and stability
requirements for heavy-duty vehicle and engine emissions standards that
are promulgated ``under this paragraph''--under paragraph 3 (``That
requirement was enacted for the benefit of manufacturers to allow time
for them to design and develop engines in compliance with newly
promulgated standards.'').\252\ Specifically, this language applies
when EPA promulgates heavy-duty vehicle and engine emissions standards
for the listed pollutants: hydrocarbons, carbon monoxide, oxides of
nitrogen, and particulate matter emissions from heavy-duty vehicles,
under section 202(a)(3).\253\ The 1994 MDV decision that commenters
rely on also acknowledged this reading of section 202(a)(3)(C) at the
time. By contrast, California's standards are not promulgated under
section 202(a)(3); as a general matter, California adopts standards for
which it seeks a waiver as a matter of law under its police
powers.\254\
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    \249\ In deciding to grant these waiver requests, EPA is relying
on its legal interpretation of the statute as explained in this
notice. In each case, EPA believes that its interpretation is the
best interpretation of the statute, regardless of judicial
deference. Guedes v. ATF, 45 F.4th 306, 313 (D.C. Cir. 2022).
Moreover, to the extent the statute is ambiguous, EPA's
interpretation is reasonable and entitled to deference. Washington
All. of Tech. Workers v. DHS, 50 F.4th 164, 192 (D.C. Cir. 2022).
    \250\ One commenter also mistakenly suggests that 202(a)(3)(B)
may also apply to California. EMA Supp. Comment at 6. To begin with,
the commenter's argument is internally inconsistent. Compare id. at
6, with id. at 4 (``certain provisions in section 202(a)(3) are not
directly relevant to CARB--for example, because they authorize EPA
to revise standards (i.e., section 202(a)(3)(B))''). Underscoring
the point, there are other obligations imposed on EPA by section
202(a) that are not imposed on California. For example, the
requirements involving motorcycles under section 202(a)(3)(E) do not
apply to California, (EPA has issued waivers for California's
motorcycle standards that include 42 FR 1503 (January 7, 1977); 41
FR 44209 (October 7, 1976); 43 FR 998 (January 5, 1978)), neither
does the consultation requirement under section 202(a)(5)(A), nor do
certain requirements of section 202(a)(6) addressing onboard vapor
recovery. Moreover, applying section 202(a)(3)(B) to California
would, as with applying section 202(a)(3)(A), create a conflict with
section 209(b). Section 209(b)'s ``in the aggregate'' language
allows California to adopt any standards so long as they are in the
aggregate more protective than the federal standards; California is
not limited to the fixed numerical NOx standards found in section
202(a)(3)(B)(ii), or to revising standards based on certain air
quality information as provided by 202(a)(3)(B)(i). Further, section
202(a)(3)(B)(i) grants the Administrator discretion to revise
certain heavy-duty standards that the Administrator previously
``promulgated under, or before the date of, the enactment of the
Clean Air Act Amendments of 1990 (or previously revised under this
subparagraph).'' This provision is closely linked with section
202(a)(3)(A). That is, notwithstanding the mandate in section
202(a)(3)(A) for EPA to promulgate heavy-duty standards for the four
listed pollutants that reflect the greatest emissions reductions
achievable, section 202(a)(3)(B)(ii) allows EPA to revise such
standards based on certain air quality information. See section
202(a)(3)(A)(i) (including the proviso ``unless the standard is
changed as provided in subparagraph (B)''). As explained above,
section 202(a)(3)(A) does not apply to California, and thus section
202(a)(3)(B)(ii) does not either. Separately, section
202(a)(3)(B)(ii) also does not apply to California because
California is not revising standards previously promulgated under
the CAA, whether ``under, or before the date of, the enactment of''
the 1990 CAA Amendments. Finally, to the extent the commenter is
specifically concerned with greenhouse gas aspects of California's
regulations, EPA notes that in the federal standard-setting context,
the agency has promulgated heavy-duty GHG standards under its
general standard-setting authority in section 202(a)(1)-(2) and does
not apply the four-year lead time and three-year stability
requirements in section 202(a)(3)(C) in such heavy-duty GHG
rulemakings. See 87 FR 17436-37 & n.26 (Mar. 28, 2022) (``Section
202(a)(3)(A) and (C) . . . do not apply to regulations applicable to
GHGs.''); 81 FR 73512 (Oct. 25, 2016); Greenhouse Gas Emissions
Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty
Engines and Vehicles EPA Response to Comments Document for Joint
Rulemaking 5-34 to 5-36 (Aug. 2011).
    \251\ ``[I]n adding section 202(a)(3)(A)(iii) . . . Congress
directed the EPA to give priority to establishing particulate
emission standards for heavy-duty vehicles, and left the agency free
to exercise its power under section 202(a)(1) to regulate light-duty
automobiles, whether diesel-powered or otherwise.'' NRDC v. EPA, 655
F.2d 318, 326 (D.C. Cir. 1981); See, e.g., EPA's statutory authority
requires a four-year lead time for any heavy-duty engine or vehicle
standard promulgated or revised under CAA section 202(a)(3). See
also 81 FR 95982 (December 29, 2016); 79 FR 46256 (August 7, 2014);
77 FR 73459 (December 10, 2012); 73 FR 52042 (September 8, 2008).
    \252\ EPA ``cannot cite us to any precedent allowing a court to
ignore an explicit leadtime requirement.'' NRDC v. Thomas, 805 F.2d
at 435. See also, 805 F.2d 435, n.40.
    \253\ NRDC v. Thomas, 805 F.2d at 414-16, 435 (reversing EPA
decision to provide less than the statutorily mandated four-year
lead time for certain model year heavy-duty vehicles and engines
standards.); 805 F.2d 435 n.40; See also, e.g., 87 FR 17414, 17420
n.26 (March 28, 2022) (``Section 202(a)(3)(A) and (C) apply only to
regulations applicable to emissions of these four pollutants.''); 87
FR 17435-36. EPA's statutory authority requires a four-year lead
time for any heavy-duty engine or vehicle standard promulgated or
revised under CAA section 202(a)(3).
    \254\ Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529
F.Supp.2d 1151, 1174 (``The waiver provision of the Clean Air Act
recognizes that California has exercised its police power to
regulate pollution emissions from motor vehicles since before March
30, 1966; a date that predates . . . the Clean Air Act.'').
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    Additional reasons justify not applying 202(a)(3)(C) to the 2018 HD
Warranty Amendments. Specifically, it has been EPA's long-standing view
that section 207, which requires manufacturers to provide an emissions
warranty for heavy-duty engines, is the grant of authority to EPA to
promulgate heavy-duty vehicles emissions warranty requirements.\255\
Accordingly, section 202(a)(3) is inapplicable to Federal warranty
requirements, and it would not be reasonable to give it force in
California's warranty requirements. Notably, the D.C. Circuit has
agreed, holding that ``California is not required to comply with
section 207 to get a waiver.\256\ Further, EPA has also long considered
CARB's warranty amendments as not standards themselves, but rather
accompanying enforcement procedures because they constitute criteria
designed to better ensure compliance with applicable standards and are
accordingly relevant to a manufacturer's ability to produce vehicles
and engines that comply with applicable standards.\257\ And while
``section 209(b) refers to accompanying procedures only in the context
of

consistency with section 202(a),'' EPA has long reviewed the
accompanying procedures under the traditional consistency test.\258\ In
any event, the 2018 HD Warranty Amendments would not be properly
considered emission standards for the listed pollutants that would come
within the purview of section 202(a)(3)(C).
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    \255\ Auto. Parts Rebuilders Ass'n v. EPA, 720 F.2d 142, 149
(D.C. Cir. 1983) (Section 207 ``commands that the Administrator
`shall prescribe regulations which shall require manufacturers to
warrant [their cars].' '' (Alteration in original)). See Decision
Document for the Notice of Scope of Preemption for California's
amendments to warranty regulations pertaining to 1983 and later
model year passenger cars, light-duty vehicles, medium- and heavy-
duty vehicles and motorcycles, V-B-1, at 65, n.132 and 66-67; 51 FR
12391 (Apr. 10, 1986).
    \256\ MEMA II, 142 F.3d at 466-67.
    \257\ MEMA I at 1111-13; Decision Document accompanying 51 FR
12391 (April 10, 1986), at 3; 43 FR 32182, 32184 (July 25, 1978).
EPA sets emissions warranty period under section 207(a) and not
section 202(a). See, e.g., 48 FR 52170 (November 16, 1983).
    \258\ MEMA I, 627 F.2d at 1111-12.
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    Further, section 202(a)(3)(C) by its terms applies to onroad heavy-
duty vehicles and engines, not to nonroad vehicles or engines.\259\
Considering the nearly identical language in both sections 209(b) and
209(e)(2)(A), EPA has reviewed California's requests for authorization
of nonroad vehicle or engine standards under section 209(e)(2)(A) using
the same principles that it has historically applied in reviewing
requests for waivers of preemption for new motor vehicle or new motor
vehicle engine standards under section 209(b).\260\ Under the third
authorization criterion, EPA historically has interpreted the
consistency inquiry to require, at minimum, that California standards
and enforcement procedures be consistent with section 209(a), section
209(b)(1)(C), and section 209(e)(1) of the Act. And, in evaluating
consistency with section 209(b)(1)(C), for purposes of consistency with
section 202(a) EPA has applied the traditional feasibility test where
the inquiry is solely whether California standards are feasible within
the lead time provided.\261\ EPA has thus never applied section
202(a)(3)(C) to authorizations for nonroad engines and vehicles,
explaining for instance that ``section [202(a)(3)(C)] by its own terms
applies only to standards applicable to emissions from new heavy-duty
on-highway motor vehicle engines, not the nonroad engines being
regulated by California.'' \262\
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    \259\ Section 202 of the CAA pertains to new motor vehicles or
new motor vehicle engines, and motor vehicles and engines is further
defined in section 216 of the CAA. Section 216 also provides the
definition of nonroad engine and nonroad vehicle and provides that
nonroad engines are not subject to standards promulgated under
section 202 of the CAA.
    \260\ See Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1087 (D.C.
Cir. 1996) (``. . . EPA was within the bounds of permissible
construction in analogizing section 209(e) on nonroad sources to
section 209(a) on motor vehicles.'').
    \261\ On July 20, 1994, EPA promulgated a rule that sets forth,
among other things, regulations providing the criteria, as found in
section 209(e)(2)(A), which EPA must consider before granting any
California authorization request for new nonroad engine or vehicle
emission standards. 59 FR 36969 (July 20, 1994). EPA revised these
regulations in 1997. These regulations were further slightly
modified and moved to 40 CFR part 1074, See 73 FR 53979 (Oct. 8,
2008). As stated in the preamble to the 1994 rule, EPA has
historically interpreted the section 209(e)(2)(A)(iii)
``consistency'' inquiry to require, at minimum, that California
standards and enforcement procedures be consistent with section
209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has
interpreted that subsection in the context of section 209(b) motor
vehicle waivers). In order to be consistent with section 209(a),
California's nonroad standards and enforcement procedures must not
apply to new motor vehicles or new motor vehicle engines. To be
consistent with section 209(e)(1), California's nonroad standards
and enforcement procedures must not attempt to regulate engine
categories that are permanently preempted from state regulation.
    \262\ See, for example, 77 FR 9249, n.73.
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    Considering the 1977 Amendments and subsequent ones, Congress could
have explicitly provided that the four-year lead time and three-year
stability requirements in section 202(a)(3)(C) apply to California
heavy-duty standards, had that been Congress's intent. For example,
Congress could have changed the text of section 209(b)(1)(C) to say,
``compliant with'' rather than ``consistent with.'' It did not. Further
demonstrating the point, in section 202(m)(2) regarding certain
standards that were determined infeasible by EPA, Congress set out a
specific delayed lead time requirement that is ``consistent with
corresponding regulations or policies adopted by the California Air
Resources Board.'' \263\ Similarly, in section 428 of the 2004
Consolidated Appropriations Act Congress required that EPA specifically
address safety implications of any California standard for certain
engines prior to granting authorizations under section 209(e).\264\
Section 202(a)(3)(C), however, is devoid of either any explicit
language or exception that would be read as a reference to California's
heavy-duty standards.\265\ A provision that would require the
Administrator to preclude California from revising the state's heavy-
duty standards for a minimum of three model years would appear to be an
important enough limitation for Congress to explicitly set out in
either section 202 or 209 especially if Congress intended California to
be the judge of the ``best means to protect the health of its citizens
and the public welfare.'' \266\ EPA thus believes more explicit
Congressional directive is needed prior to precluding California from
revising standards for heavy-duty vehicles and engines that are to be
sold in that state.\267\
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    \263\ ``The regulations required under paragraph (1) of this
subsection shall take effect in model year 1994, except that the
Administrator may waive the application of such regulations for
model year 1994 or 1995 (or both) with respect to any class or
category of motor vehicles if the Administrator determines that it
would be infeasible to apply the regulations to that class or
category in such model year or years, consistent with corresponding
regulations or policies adopted by the California Air Resources
Board for such systems.'' Section 202(m)(2) (Emphasis added). By the
time of this amendment California had been regulating heavy-duty
vehicle and engine emissions with the appropriate waivers that EPA
granted applying the traditional consistency test. See, e.g., 34 FR
7348 (May 6, 1969) (HD gasoline MY 72 and later); 36 FR 8172 (April
30, 1971) (HD diesel MY 72 and later MY); 40 FR 23102, 23105 (May
28, 1975) (extending waiver of April 30, 1971, to MY 1975 HD
standards).
    \264\ Codified at 40 CFR 1074.105(c). ``In considering any
request from California to authorize the state to adopt or enforce
standards or other requirements relating to the control of emissions
from new nonroad spark-ignition engines smaller than 50 horsepower,
the Administrator will give appropriate consideration to safety
factors (including the potential increased risk of burn or fire)
associated with compliance with the California standard.''
    \265\ In contrast, for example, under section 246(f)(4), which
sets out a State Implementation Plan provision regarding fleet
programs required for certain non-attainment areas, ``standards
established by the Administrator under this paragraph . . . shall
conform as closely as possible to standards which are established
for the State of California for ULEV and ZEV vehicles in the same
class.'' And ``[f]or vehicles of 8,500 lbs. GVWR or more, the
Administrator shall promulgate comparable standards for purposes of
this subsection.'' Section 246(f)(4) (Emphasis added).
    \266\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301-302
(1977).
    \267\ Moreover, in 1977, the congressional record indicates that
at least one heavy-duty vehicle and engine manufacturer requested
that Congress amend section 209(b) by limiting this waiver provision
to only light-duty vehicles and engines. According to the engine
manufacturer, California's heavy-duty vehicle standards would be on
par with federal standards by 1983. Hearing on S. 251, 252 and 253
Before Subcomm. On Env't Protection, H.R. Rep. No. 95-294, 95th
Cong. 1st Sess. 4221-23 (1977). There was no concurrent testimony
from a member of Congress in 1977 or 1990 regarding the intent of
section 202(a)(3) and certainly nothing to indicate that it would
apply to California. While there was general testimony from a member
of industry during the 1990 process, there is no evidence in the
record suggesting the applicability of 202(a)(3)(C) to California.
Hearing on S.1630 Before Subcomm. on Env't Protection, 101st Cong.
312-13 (1989). In any event, ``The 1977 Amendment also drew heavily
on the California experience in the ten years since enactment of the
first waiver provision. See 123 Cong. Rec. H4852 (daily ed. May 21,
1977); id. at H5061 (daily ed. May 25, 1977).'' MEMA I, 627 F. 2d.
1095, 1111 n.34.
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    In any event, except for the 1994 MDV waiver, since the 1977
Amendments EPA has granted heavy-duty engine and vehicle waivers where
California has provided less than four years of lead time from adoption
of its regulations and three years stability also under the traditional
consistency test.\268\ Congress did not add anything to section
202(a)(3) during the 1990 amendments to the Clean Air Act to indicate
its applicability to California.\269\ And, in

2012, EPA specifically rejected commenters assertions that section
202(a)(3)(C) applied to California, stating that EPA's lead time
inquiry relates to technological feasibility and that there is no
additional requirement imposed by the section 209 criteria.\270\
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    \268\ For example, 34 FR 7348 (May 6, 1969 (HD gasoline MY 1972
and later); 36 FR 8172 (April 30, 1971) (HD diesel MY 1972 and later
MY); 43 FR 1829 (January 12, 1978); 49 FR 18887 (May 3, 1984).
    \269\ The 1990 Amendments did extend the four-year lead time and
three-year stability to standards promulgated by EPA for control of
NOX emissions from heavy duty engines and vehicles.
(``The conference agreement adopts the House provisions, modified to
retain the Senate oxides of nitrogen (NOX) standard for
heavy-duty engines effective in model year 1998, and to reinstate
the four-year lead time and three-year stability provisions in
current law.'' Conference Report on S. 1630 (H. Rept. 101-952) 103d
Cong. 1st Sess. 887).
    \270\ 77 FR 9239, 9249 (Feb. 16, 2012) (``However, the lead-time
inquiry EPA undertakes relates to technological feasibility.
Specifically, consistency with section 202(a) requires the
Administrator to first determine whether adequate technology already
exists; or if it does not, whether there is adequate time to develop
and apply the technology before the standards go into effect . . .
EPA then has no further inquiry into lead-time, because no
additional requirement is imposed by the section 209 criteria.'').
EPA acknowledges that the regulations at issue in this 2012 waiver
decision concerned nonroad engines, not heavy-duty on-highway motor
vehicle engines, and that the Agency noted, in that decision, that
``even if the language in [section 202(a)(3)(C)] were relevant to
its consistency analysis, that section by its own terms applies only
to standards applicable to emissions from new heavy-duty on-highway
motor vehicle engines, not the nonroad engines being regulated by
California.'' Id. at 9249, n.73.
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    Turning to section 209(b), in section 209(b)(1) Congress directed
that EPA ``shall'' grant waivers absent one of the three limited bases
for a waiver denial.\271\ Section 209(b)(1) ``contains an imperative to
do an act--grant the waiver after a hearing--once California has made
the protectiveness determination.'' \272\ Congress did not amend
section 209(b)(1)(C) in the 1977 Amendments, rather the ``more
stringent'' standard required for California standards and contained in
section 209(b)(1) in the 1967 Act was superseded by amendments to
section 209, which established that California's standards must be, in
the aggregate, at least as protective of public health and welfare as
applicable Federal standards. Specifically, under section 209(b)(1),
California is now required to make a protectiveness finding ``in the
aggregate'' for each waiver request by looking at the summation of the
standards within its vehicle program. The protectiveness finding does
not call for identicality of the standards under review with Federal
standards. Instead, the 1977 Amendments to section 209(b)(1), which
reflected California's preference to ``trade off'' emissions of carbon
monoxide, which was not as critical a problem in California, for
NOX emissions, which were and continue to present severe air
quality challenges in California.\273\ With this amendment, California
was no longer required to design a program where each standard was
equally or more stringent than the applicable Federal standards, but
rather can prioritize the emission reductions it views as most
important for its citizens and to regulate certain pollutants less
stringently than the Federal government, as long as the state program
standards are in the aggregate at least as protective as the Federal
standards.\274\ CARB may now design motor vehicle emission standards
that are not as stringent as Federal standards but when considered
collectively with other standards would be best suited to address
California air quality problems, as long as the in the aggregate, the
protectiveness finding is made and it is not arbitrary and
capricious.\275\ ``[T]here is no question that Congress deliberately
chose in 1977 to expand the waiver provision so that California could
enforce emission control standards which it determined to be in its own
best interest even if those standards were in some respects less
stringent than comparable federal ones.'' \276\
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    \271\ See, e.g., Ford Motor Co., 606 F.2d 1293, 1302 (``The
Administrator is charged with undertaking a single review in which
he applies the deferential standards set forth in Section 209(b) to
California and either grants or denies a waiver without exploring
the consequences of nationwide use of the California standards or
otherwise stepping beyond the responsibilities delineated by
Congress.'').
    \272\ MEMA I, 627 F.2d 1095, 1120.
    \273\ The House Committee recognized ``California's longstanding
belief that stringent control of oxides of nitrogen emission from
motor vehicles may be more essential to public health protection
than stringent control of carbon monoxide,'' and was aware that it
might be technologically difficult to meet both the NO[x] standards
California desired and the federal CO standard. Accordingly, Section
209(b) was rewritten to permit California to obtain a waiver of
federal preemption so long as it determines that its emission
control standards would be, ``in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards.'' Ford Motor, 606 F.2d 1293, 1297 (D.C. Cir. 1979).
    \274\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 301-302
(1977). The amendment is to afford California ``the best means to
protect the health of its citizens and the public welfare.'' (Motor
Vehicle Mfrs. Ass'n v. NYS Dep't of Env't Conservation, 17 F.3d at
525 (``section 209 (formerly section 208) was amended to require the
U.S. Environmental Protection Agency (EPA) to consider California's
standards as a package, so that California could seek a waiver of
preemption if its standards `in the aggregate' protected public
health at least as well as federal standards.'')).
    \275\ 74 FR at 32761 (``Congress decided in 1977 to allow
California to promulgate individual standards that are not as
stringent as comparable federal standards, as long as the standards
are `in the aggregate, at least as protective of public health and
welfare as applicable federal standards.''); Ford Motor, 606 F.2d
1293, 1302 (D.C. Cir. 1979) (``[T]he 1977 amendments significantly
altered the California waiver provision.'').
    \276\ Ford Motor Co., 606 F.2d 1293, 1301; MEMA II, 142 F.3d 464
(``California would not be denied a waiver if its CO standard were
slightly higher than the federal . . . standard. . . . This is
despite the fact that section 202(g) contains specific standards for
CO that EPA must promulgate.'').
---------------------------------------------------------------------------

    It is also this protectiveness determination by California, under
section 209(b)(1) that determines EPA's scope of review for consistency
under section 209(b)(1)(C).\277\ EPA has reasoned that this is
appropriate because the phrase ``in the aggregate,'' which as earlier
explained is California's whole program precedes ``such state
standards,'' which is the relevant language in section
209(b)(1)(C).\278\ EPA has thus long read both sub-provisions together
so that the Agency reviews California's entire program for both
protectiveness and feasibility.\279\ So, EPA's historic practice has
been to conduct the technology feasibility analysis for CARB's standard
under review as a whole-program assessment, i.e., one that ensures
manufacturers have sufficient lead time to comply with the program's
standards as a whole, accounting for the interactions between
technologies necessary to meet both new and existing standards.\280\
And most importantly, because California can ``include some less
stringent [standards] than the corresponding federal standards''
California would logically not be expected to take section 202(a)(3)(C)
into account in any protectiveness finding made for a waiver request
for California standards with a shorter lead time than specified in
section 202(a)(3)(C), and such standards would otherwise be properly
considered more stringent than Federal standards.\281\ ``[T]he agency's
long-standing interpretation that section 209(b) does not require
California to establish

perfect compliance with the CAA to obtain a waiver is particularly
plausible because section 209(b) explicitly requires only that the
state's standards `be, in the aggregate, at least as protective of
public health and welfare as applicable Federal standards.' CAA section
209(b)(1).'' \282\
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    \277\ EPA's assessment under 209(b)(1)(C) is not in practice a
standard-by-standard review. EPA believes it appropriate to read the
entirety of 209 together, along with its purposes, in order to
properly interpret its components such as 209(b)(1)(C). See e.g., 87
FR 14332.
    \278\ 78 FR 2131-45. EPA notes that the term ``such state
standards'' in 209(b)(1)(C) allows the Agency, in appropriate
circumstances, to review the consistency of CARB's suite of
standards, for a particular vehicle category, with section 202(a).
For example, EPA evaluated all of the standards (LEV III criteria
pollutant, ZEV sales mandate, and GHG standards) of the ACC program
in recognition of the aggregate costs and lead time associated with
CARB's standards as well as technologies that may be employed to
meet more than one standard.
    \279\ 49 FR 14353-54, 14358-62. EPA notes there would be an
inconsistency if ``State standards'' meant all California standards
when used in section 209(b)(1) but only particular standards when
used in 209(b)(1)(B) and 209(b)(1)(C). EPA has historically
interpreted the third waiver criterion's feasibility analysis as a
whole-program approach. 87 FR 14361, n.266.
    \280\ 38 FR 30136 (November 1, 1973) and 40 FR 30311 (July 18,
1975).
    \281\ See for example, 41 FR 44209, 44212 (October 7, 1976).
    \282\ MEMA II, 142 F.3d at 463.
---------------------------------------------------------------------------

    Section 202(a)(3)(C) also requires that standards for heavy-duty
vehicles and engines apply for no less than three model years without
revision.\283\ Under a commenter's argument, the Administrator would
have to ``align'' or make a finding that precludes California from
revising each one of the standards under review for a minimum of three
model years, under section 202(a)(3)(C).\284\ Commenters' reading of
``consistency'' would thus require EPA to first conduct ``the narrow[ ]
. . . congressionally mandated EPA review'' under which EPA's scope of
review is delineated by the protectiveness finding California has made,
and then a second broader review, beyond the confines of EPA's historic
waiver practice, that would account for the stability requirements for
California cars.\285\ Under this reading, ``[EPA] must come to the
rather curious conclusion that Congress intended the Administrator to
approach every new set of California standards wearing two hats one
expressly provided by statute and the other a product of elusive
inference. Under the first he would undertake the cursory review set
forth in Section 209(b) for purposes of deciding whether to grant
California a waiver of preemption; and under the other he would turn
around and, apparently in the course of a full-fledged rulemaking
proceeding, plumb the merits of the California standards.'' \286\ EPA
disagrees. ``The Administrator has consistently held since first vested
with the waiver authority, his inquiry under section 209 is modest in
scope. He has no broad and impressive authority to modify California
regulations.'' \287\ ``[H]is role with respect to the California
program is largely ministerial.'' \288\ And ``[t]he statute does not
provide for any probing substantive review of the California standards
by federal officials.'' \289\ Rather ``[t]he Administrator is charged
with undertaking a single review in which he applies the deferential
standards set forth in Section 209(b) to California and either grants
or denies a waiver without exploring the consequences of nationwide use
of the California standards or otherwise stepping beyond the
responsibilities delineated by Congress.'' (Emphasis added).\290\ As
previously discussed, the deference called for in reviewing
California's waiver request led EPA to explain over 50 years ago:
---------------------------------------------------------------------------

    \283\ ``Any standard promulgated or revised under this paragraph
and applicable to classes or categories of heavy-duty vehicles or
engines shall apply for a period of no less than 3 model years
beginning no earlier than the model year commencing 4 years after
such revised standard is promulgated.'' Section
202(a)(3)(C)(Emphasis added).
    \284\ EMA Initial Comments at 5, 11.
    \285\ Ford Motor, 606 F.2d 1293, 1298-99.
    \286\ Id. at 1302.
    \287\ MEMA I, 627 F.2d at 1119 (internal citations omitted).
    \288\ Id. at 1123 n.56 (``[T]he Administrator has no broad
mandate to assure that California's emissions control program
conforms to the Administrator's perceptions of the public interest.
Absent the contingency that he is able to make contrary findings,
his role with respect to the California program is largely
ministerial.'').
    \289\ Ford Motor, 606 F.2d at 1301.
    \290\ Id. at 1302.

    Even on this issue of technological feasibility I would feel
constrained to approve a California approach to the problem which I
might feel unable to adopt at the Federal level in my own capacity
as a regulator. The whole approach to the Clean Air Act is to force
the development of new types of emission control technology where
that is needed by compelling the industry to `catch up' to some
degree with newly promulgated standards. Such an approach to
automotive emission control might be attended with costs, in the
shape of reduced product offering, or price and fuel economy
penalties, and by risks that a wider number of vehicle classes may
not be able to complete their development work in time. Since a
balancing of these risks and costs against the potential benefits
from reduced emissions is a central policy decision for any
regulatory agency, under the statutory scheme outlined above I
believe I am required to give very substantial deference to
California's judgment on that score.\291\
---------------------------------------------------------------------------

    \291\ 36 FR 17158 (August 31, 1971); See also See 78 FR at 2133.
(EPA notes that when reviewing California's standards under the
third waiver prong, the Agency may grant a waiver to California for
standards that EPA may choose not to adopt at the Federal level due
to different considerations).

    Commenters' reading would also introduce two different tests for
the evaluation of the consistency of California's standards under the
third prong: one for onroad heavy-duty vehicle and engine standards;
and a different one for nonroad heavy-duty vehicle and engine
standards. For one set of standards, EPA would continue evaluation of
technology feasibility under the traditional test while other standards
would have to be evaluated for consistency under the four-year lead
time and minimum three-model year stability requirements. This would
create a dichotomy, for example, between California's heavy-duty onroad
and nonroad vehicle and engine standards that address hydrocarbons,
carbon monoxide, oxides of nitrogen, and particulate matter that is
neither supported by the statute nor EPA's waiver practice. It would be
particularly confounding, in that as a general matter, the only
difference between certain heavy-duty vehicles is the placement in
service with some heavy-duty engines being used interchangeably for
either onroad or nonroad purposes. Since the inception of the waiver
program EPA has reviewed both California's onroad and nonroad heavy-
duty engine standards under the traditional test. This waiver practice
predated the 1990 Amendments that provided for authorizations of
nonroad engines and vehicles standards by over two decades. Thus, for
example, over fifty years ago EPA, in granting a waiver of preemption
for California's 1972 and 1973 MY HD vehicles, also denied the waiver
for certain nonroad utility vehicles under the historical technology
feasibility test.\292\ Since the 1990 amendments and considering the
identical language in both sections 209(b) and 209(e)(2)(A), EPA has
reviewed California's requests for authorization of nonroad vehicle or
engine standards under section 209(e)(2)(A) using the same principles
that we have historically applied in reviewing requests for waivers of
preemption for new motor vehicle or new motor vehicle engine standards
under section 209(b).\293\ Specifically, EPA's practice has been to
conduct the consistency inquiry called for under section
209(e)(2)(A)(iii) by evaluating, at a minimum, whether California's
standards and enforcement procedures for nonroad engines and vehicles
are consistent with section 209(a), section

209(e)(1) and section 209(b)(1)(C).\294\ In short, ``EPA's review of
California's regulations under the third statutory criterion is quite
deferential, limited to judging whether a regulation is `not
consistent' with the terms of section 7543. See 42 U.S.C.
7543(e)(2)(A)(iii).'' \295\
---------------------------------------------------------------------------

    \292\ 36 FR 8172 (April 30, 1971) (Provided that due to
considerations of technological feasibility, this waiver of such
standards and procedures (1) shall not become applicable with
respect to hydrocarbon and carbon monoxide emissions from nonroad
utility vehicles (as defined at 45 CFR 85.1(a), 35 FR 17288); 34 FR
7348 (May 6, 1969) (Due to technological feasibility and lead-time
issues, exhaust emission standards and test procedures for 1970 gas-
powered light duty vehicles are not applicable to off-road utility
vehicles until April 30, 1970, and not at all unless provision is
made for calculating emissions of hydrocarbons and carbon monoxide.
Due to technological feasibility issues, standards and procedures
for 1971 and later gas-powered light-duty vehicles are not
applicable to off-road utility vehicles unless provision are made
for calculating emissions of hydrocarbons and carbon monoxide. Due
to technological feasibility issues, fuel evaporative emission
standards and test procedures for 1970 and later gas-powered light
duty vehicles are not applicable to off-road utility vehicles until
April 30, 1970).
    \293\ See Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1087 (D.C.
Cir. 1996) (``. . . EPA was within the bounds of permissible
construction in analogizing section 209(e) on nonroad sources to
section 209(a) on motor vehicles.'').
    \294\ 40 CFR part 1074, subpart B, 73 FR 59379 (October 8,
2008).
    \295\ American Trucking Assoc. v. EPA, 600 F.3d 624, 629 (D.C.
Cir. 2010).
---------------------------------------------------------------------------

    The ``technological feasibility component of section 202(a) [only]
obligates California to allow sufficient lead time to permit
manufacturers to develop and apply the necessary technology.'' \296\
Under EPA's historical practice, standards that are technologically
feasible because technology is presently in use are ``consistent with
section 202(a).'' So too are standards for which technology is
reasonably projected to be available by the relevant model year. For
California standards, that ends the inquiry. Otherwise, the
Administrator, who has long explained that his role in the waiver
context is ``modest in scope'' and not to ``overturn'' and ``substitute
his judgment'' for those of California would nevertheless impose a
four-year lead time requirement on California despite a showing that
necessary emission control technology is available and otherwise well
within the bounds of EPA's historical waiver practice of reviewing
feasibility.\297\ Doing so would be inconsistent with the statutory
text and the structure that Congress put in place to enable innovation
in California's market. In sum, ``the import of section 209(b) is not
that California and Federal standards be identical, but that the
Administrator does not grant a waiver of Federal preemption where
compliance with the California standards is not technologically
feasible within available lead time.'' \298\
---------------------------------------------------------------------------

    \296\ MEMA II, 142 F.3d at 463 (Internal citations omitted).
    \297\ H.R. Rep. No. 95-294, at 302 (The Administrator ``is not
to overturn California's judgment lightly. Nor is he to substitute
his judgment for that of the State.'').
    \298\ 46 FR 22032, 22034-35 (April 15, 1981).
---------------------------------------------------------------------------

b. Neither AMC v. Blum nor the 1994 MDV Waiver Dictate a Contrary
Interpretation
    As also noted above, EPA received comment that the D.C. Circuit's
decision in Blum along with EPA's 1994 MDV waiver constrain EPA and
require it to apply the precise requirements of section 202(a)(3)(C)
California's program in reviewing for consistency with section
202(a).\299\ But the lead time section at issue in Blum is
distinguishable from section 202(a)(3)(C) in several key respects, and
Blum thus does not control consideration of that latter section. In
Blum, the D.C. Circuit held that a waiver of preemption that denied a
small volume manufacturer the statutorily mandated lead time specified
as an exception in section 202(b)(1)(B) was incorrectly granted because
the relevant California's standards did not provide two-year lead time
and were thus inconsistent with section 202(a) under the third waiver
prong.\300\ According to the court, ``Congress itself finds and
mandates that with respect to small manufacturers a lead period two
years is necessary. We think the effect of this congressional mandate
is to assimilate or incorporate in section 202(a)(2) the proviso of
section 202(b)(1)(B).'' \301\
---------------------------------------------------------------------------

    \299\ 59 FR 48625 (September 22, 1994) and associated Decision
Document at EPA-HQ-OAR-2022-0330, (MDV Waiver Decision Document).
    \300\ Waiver of preemption for California to Enforce
NOX emissions standards for 1981 and later model years
passenger cars. 43 FR 25729 (June 14, 1978).
    \301\ American Motors Corp. v. Blum, 603 F.2d 978, 981 (D.C.
Cir. 1979) (``Section 202(b)(1)(B) directs that the regulations
prescribed by the Administrator pursuant to section 202(a) shall
require that NOX emissions may not exceed 2.0 grams per
vehicle mile for vehicles and engines manufactured during model
years 1977 through 1980. For those manufactured during model year
1981 and thereafter, NOX emissions may not exceed 1.0
grams per vehicle mile. . . . In establishing these regulations the
Administrator is bound by section 202(a)(2) to allow such lead time
as he finds necessary.'')
---------------------------------------------------------------------------

    There are several important distinctions between Blum and the
present waivers. As an initial matter, Blum is not directly on point
because it did not resolve the applicability of section 202(a)(3)(C) in
a California waiver proceeding. Nor did Blum suggest that all
nationally applicable lead time requirements in section 202 must apply
to California. Rather, Blum performed a detailed analysis of the text
and history of the specific provision at issue, section 202(b)(1)(B),
and found that that provision alone must be strictly applied for
California's standards to be ``consistent'' with section 202(a).
Applying the same kind of detailed textual and historical analysis
here, EPA concludes that section 202(a)(3)(C) does not apply in the
California waiver context.\302\
---------------------------------------------------------------------------

    \302\ See section III.D.5.a.
---------------------------------------------------------------------------

    Moreover, the facts surrounding section 202(b)(1)(B) in Blum and
section 202(a)(3)(C) here are quite different. Blum dealt with a
narrow, time-limited issue: whether a specific group of manufacturers
were entitled to relief from certain NOX standards for two
model years shortly after the enactment of the 1977 Amendments.
Congress made findings specific to those standards and that group of
manufacturers, including one of the petitioners in the litigation by
name. The court of appeals gave substantial weight to the specific
findings Congress made and the detailed legislative history. By
contrast, section 202(a)(3)(C) deals with a much broader set of
standards applying to a broader set of manufacturers over an indefinite
period of time--none of which Congress specifically evaluated. Applying
section 202(a)(3)(C) to California's program is not necessary because
it was not grounded in manufacturer and model year-specific findings
and would, as discussed above, interfere with California's ability to
serve as a laboratory--all in stark contrast to the application of
section 202(b)(1)(B). Congress purposely crafted statutory language in
section 202(b)(1)(B) to provide practical flexibility that would only
apply for a short period of time (the 1981 and 1982 model years) with
knowledge of the industry at the time, and the court of appeals in Blum
acknowledged the congressional purpose of this language. This short-
lived statutory exception no longer applies in EPA rulemakings, nor
does it apply to California at this point in time. In contrast, there
is no evidence that Congress evaluated questions of lead time and
stability with respect to future California heavy-duty standards--or
that it had any intent to constrain the form of California's standards,
in contrast to the federal standards tied to the ``greatest degree of
emission reduction achievable'' mandate. And more importantly, there
are no similar legislative findings or other legislative history
indicating that Congress believed all manufacturers needed at least
four years of lead time to meet CARB's heavy-duty standards generally
or the standards that are the subject of these waiver requests
specifically. Indeed, as EPA has explained, CARB set forth a detailed
explanation of the feasibility of its standards and commenters have
failed to meet their burden of proof to show that the standards are
infeasible.
    As noted, there is a critical textual distinction between the issue
addressed in Blum and the one here. In Blum, the applicability of
section 202(b)(1)(B) to California resulted from an exception to the
general lead time of section 202(a)(2) that Congress provided for
certain motor vehicle manufacturers for a short period of time and for
specified model years. Immediately introducing section 202(a)

is the phrase ``Except as otherwise provided in subsection (b) -),''
which by its terms means that section 202(b) governs over the more
general and potentially conflicting terms in section 202(a). But
Congress did not disturb the applicability of section 202(a)(2) for
subsequent model years standards and the D.C. Circuit held accordingly:
``In establishing these regulations [for model year 1981 and
thereafter] the Administrator is bound by section 202(a)(2) to allow
such lead time as he finds necessary.'' \303\ There is also nothing to
indicate Congressional intent to override section 202(a)(2). But
commenters' reading would have the Administrator do just that by
allowing section 202(a)(3)(C) to govern over section 202(a)(2) even
where California has made a showing of technology feasibility for the
standards under review.
---------------------------------------------------------------------------

    \303\ American Motors Corp. v. Blum, 603 F.2d 978, 981.
---------------------------------------------------------------------------

    According to relevant legislative history of section 202(b)(1)(B),
that language was introduced due to concerns that small volume
manufacturers would not be able to comply with the 1.0 gram per mile
NOX standard for light-duty vehicles. According to
statements made by members of Congress at the time of the amendment's
introduction and debate, the amendment was intended to apply to only
American Motors Corporation and one other small manufacturer (Avanti)
because the standard required the development of a specific technology
that they would have to purchase and adapt from other manufacturers, so
these small volume manufacturers would be unavoidably behind in the
pollution abatement timetable from the very beginning.\304\ This
legislative history was crucial to the Blum Court's holding that
Congress had ``f[ound] and mandate[d] that with respect to small
manufacturers a lead period of two years is necessary.'' In contrast,
there does not appear to be similar legislative history detailing a
special or peculiar need for the strict lead time requirements for
section 202(a)(3)(C), which was enacted in the same year Amendments as
section 209(b)(1)(B), that would indicate Congress's belief that a
specific amount of lead time was ``necessary.'' \305\
---------------------------------------------------------------------------

    \304\ 123 Cong. Rec. S9233 (daily ed. June 9, 1977). Even the
EPA Administrator acknowledged AMC's specific need for extra lead
time in a letter to Congress in support of the amendment. Both the
amendment's sponsor and the Administrator explained that the 1.0
gram/mile standard created a ``peculiar'' and ``special'' problem
for AMC and other small manufacturers. The two years of lead time
was intended to give these small manufacturers adequate time to
``modify and adapt the system [purchased from other manufacturers]
to [their] own product line.'' Id.
    \305\ To the extent commenters cite statements in the
legislative history regarding the need for three years of stability
and four years of lead time, EPA notes that none of the cited
statements are from members of Congress themselves and are instead
testimony from commenters themselves. See, e.g., EMA Initial
Comments at 10. But see, H.R. Rep. No. 95-294 at 542 (1977) (For
standards promulgated under section 202(a)(3)(A) ``[a]dditional
revisions of up to 3 years `each could be granted at three-year
intervals thereafter;' '' and Congress ``provides four years lead
time before temporary or permanent revision of any statutory
standard.'').
---------------------------------------------------------------------------

    Moreover, after Blum, the D.C. Circuit also considered a somewhat
analogous argument in MEMA II, where petitioners maintained that
section 202(m), which calls for promulgation of regulations ``under
section 202(a),'' meant that EPA was to evaluate applicability of
section 202(m) to California's onboard diagnostic regulations for
consistency with section 202(a). The court disagreed, held that section
202(m) does not apply, and declined to extend its holding in Blum,
holding instead that ``section 209(b)(1) makes clear that section
202(a) does not require, through its cross-referencing, consistency
with each federal requirement in the act. California's consistency is
to be evaluated `in the aggregate,' rather than on a one-to-one
basis.'' \306\ According to the court ``[a]lthough statutory cross-
referencing presents a superficially plausible textual argument linking
compliance with subsection (m) to compliance with subsection (a), the
agency has long interpreted the statute to give California very broad
authority, and the court has held that this interpretation is not
unreasonable.'' \307\
---------------------------------------------------------------------------

    \306\ MEMA II, 142 F.3d at 463.
    \307\ Id. at 464 (``[I]t would appear virtually impossible for
California to exercise broad discretion if it had to comply with
every subsection of section 202 that cross-referenced subsection
(a). See, e.g., CAA section 202(b), (g), (h), (j), (m)(1), (m)(2),
(m)(4).'').
---------------------------------------------------------------------------

    EPA also disagrees with commenter's claim that the 1994 MDV waiver
constrains and binds EPA in the current waiver review. EPA is retaining
the position it has consistently held with the sole exception of the
1994 MDV waiver for all the reasons discussed herein.\308\ EPA notes
that in MEMA II the court revisited Blum and explained:
---------------------------------------------------------------------------

    \308\ FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).

    Petitioners' reliance on American Motors Corp., [ ] is
misplaced. In that case, EPA viewed the petitioner's complaint about
the lead time for a proposed action by CARB to be solely based on
section 202(b), not section 202(a), and so was not cognizable in the
waiver process. The court disagreed, observing that the lead time
for implementation of the NOX standard was governed by
section 202(a)(2) and concluding that the California regulation,
which denies to [petitioner] a lead time of two years, is
inconsistent with section 202(a)(2). Id. at 981. Thus, the American
Motors decision did not suggest that all of the subsections of
section 202 were incorporated into subsection (a) for the purposes
of assessing a California waiver application. Instead, it concluded
that the EPA had granted a waiver without determining whether
California had met the standards of section 202(a).'' \309\
---------------------------------------------------------------------------

    \309\ 142 F.3d at 464, n.14 (internal citations omitted).

    And in the intervening years since the 1994 MDV waiver, EPA has not
applied section 202(a)(3)(C) to a number of other waiver decisions for
California's heavy-duty standards.\310\ For instance, in 2012 EPA did
not require four years of lead time nor address the stability
requirements for California's heavy-duty truck idling standards under
section 202(a)(3)(C) and explicitly disagreed with comments asserting
its applicability.\311\ Similarly, in 2008, 2012, 2014, and 2016, EPA
did not require four years of lead time nor address the stability
requirements for California's heavy-duty vehicle and engine greenhouse
gas waivers as well as the On-Board Diagnostics requirements under
section 202(a)(3)(C).\312\ So, the 1994 MDV waiver remains the sole
waiver decision where EPA reviewed California standards for consistency
with section 202(a) under both section 202(a)(3) and the historically-
applied technology feasibility test (202(a)(2)). At the time of the
1994 MDV waiver, EPA posited that ``Blum indicates that California
would be required to provide the statutory lead time required under
section 202(a)(3)(C).'' \313\ But EPA did not

address the stability requirements also contained within section
202(a)(3)(C) that requires standards for heavy-duty vehicles and
engines to apply for no less than three model years without revisions.
Where section 202(a)(3)(C) applies, standards must allow at least three
model years of stability, meaning that no revisions or amendments are
allowed until after three model years. The 1994 MDV Waiver was also
silent on California's longstanding practice of amending standards for
which a waiver has been granted.\314\ EPA's waiver practice has long
allowed for such revisions under the rubric of within-the-scope
amendments, which calls for review of California standards that have
been amended under both the protectiveness finding and the technology
feasibility requirements of the third waiver prong.\315\ In other
words, there is no prescribed lead time for within-the-scope amendments
because EPA reviews them under the traditional consistency test. The
1994 MDV waiver did not wrestle with the implications of applying
section 202(a)(3)(C) to waiver decisions for either of these important
factors--the constraints on California's ability to drive innovations
in vehicle emission control technologies, as Congress intended, with a
four-year lead time and a three-year stability requirement, and the
problematic constraint such an interpretation would impose on
California's ability to amend standards for which a waiver has been
granted to address any newly emergent issues. As such, the conclusions
in the decision are based on insufficient analysis.
---------------------------------------------------------------------------

    \310\ 70 FR 50322 (August 26, 2005) (2007 California Heavy-Duty
Diesel Engine Standards); 71 FR 335 (Jan. 4, 2006) (2007 Engine
Manufacturers Diagnostic standards); 77 FR 9239 (February 16, 2012)
(HD Truck Idling Requirements); 79 FR 46256 (Aug. 7, 2014) (the
first HD GHG emissions standard waiver, relating to certain new 2011
and subsequent model year tractor-trailers); 81 FR 95982 (December
29, 2016) (the second HD GHG emissions standard waiver, relating to
CARB's ``Phase I'' regulation for 2014 and subsequent model year
tractor-trailers); 82 FR 4867 (January 17, 2017) (On-Highway Heavy-
Duty Vehicle In-Use Compliance Program).
    \311\ 77 FR 9239, 9249 (Feb. 16, 2012).
    \312\ 73 FR 52042 (September 8, 2008); 77 FR 73459 (December 10,
2012); 79 FR 46256 (August 7, 2014); 81 FR 95982 (December 29,
2016). EPA also notes that several waivers have been granted for
California's on-highway motorcycles (See for example, 42 FR 1503
(January 7, 1977); 41 FR 44209 (October 7, 1976); 43 FR 998 (January
5, 1978); 46 FR 36237 (July 14, 1981)).
    \313\ 59 FR 48625 (September 22, 1994) and associated Decision
Document at EPA-HQ-OAR-2022-0330, (MDV Waiver Decision Document) at
page 26 (``Under section 209, the Administrator has an oversight
role to review California lead time decisions associated with their
rules. While CARB may well choose to provide a different amount of
lead time for light-duty vehicles than EPA has determined is
necessary, Blum instructs that the specific lead time requirements
of section 202 apply to both agencies with equal force. Again, the
Blum court interpreted literally the specific congressional
requirement of lead time and stated, `[t]he necessity for lead time
cannot be obviated by a waiver.' '' Id. at 32; (As Congress
intended, EPA has liberally construed the section 209 waiver
provision to give California broad discretion with its program.
Nonetheless, EPA's discretion is not unlimited. In light of the
plain language and Congressional intent of sections 202 and 209, and
applying the rationale of Blum, I find that the opposing parties
have provided persuasive arguments that California is subject to the
four-year lead time requirement under section 202(a) (3) (b) of the
Act and is required to provide four years of lead time for the
proposed MDV standards.).
    \314\ See, e.g., 76 FR 61095 (October 3, 2011) (granting
California a within-the-scope waiver for its 2008 amendments to its
ZEV Standard); 71 FR 78190 (December 28, 2006) (granting California
a within-the-scope waiver for its 1993-2003 amendments to its ZEV
Regulations).
    \315\ See, e.g., the Notice of Scope of Preemption for
California's amendments to warranty regulations pertaining to 1983
and later model year passenger cars, light-duty vehicles, medium-
and heavy-duty vehicles and motorcycles; 51 FR 12391 (Apr. 10,
1986).
---------------------------------------------------------------------------

    In the 1994 MDV waiver, EPA also reviewed the standards under the
traditional technology feasibility test finding that ``no significant
development nor associated lead time is required.'' \316\ Notably,
California had provided four-year lead time for the standards at issue.
Thus, EPA was not confronted by the situation as in the instant waiver
where California had made a feasibility showing of presently available
technology.
---------------------------------------------------------------------------

    \316\ 1994 MDV Waiver Document at 48-49 (``In view of these
facts, I agree with CARB's assessment that adequate technology
exists and may be readily adapted to enable MDVs to meet all of
CARB's standards. Thus, no significant development nor associated
lead time is required.'').
---------------------------------------------------------------------------

    EPA in 1994 also did not discuss an earlier 1981 decision denying
the petition for reconsideration that sought reconsideration of a
waiver decision on grounds that Blum also required the Administrator to
take certain lead time provisions into account when considering
California waiver requests at issue.\317\ In 1981, shortly after Blum,
EPA explained in relevant part that:
---------------------------------------------------------------------------

    \317\ Petition for Reconsideration of Waiver of Federal
Preemption for California To Enforce Its NOX Emission
Standards and Test Procedures: Notice of Denial. 46 FR 22032 (April
15, 1981).

    The specific Congressional finding that under prescribed
circumstances additional lead time is necessary is unique to the
small volume manufacturer provision, and is not present in the other
sections of the Act. Moreover, the fact that Congress determined
that qualified manufacturers such as AMC are entitled to additional
lead time was the critical factor leading to the Court's decision.
AMC v. Blum did not involve or discuss other Federal waiver
provisions, which, unlike section 202(b)(1)(B), do not reflect such
a Congressional finding.\318\
---------------------------------------------------------------------------

    \318\ 46 FR 22034.

---------------------------------------------------------------------------
    EPA further explained that

    The small-volume manufacturer waiver provision was interpreted
by the court as a ``proviso'' to section 202(a) of the Act, such
that the determination of technological feasibility of the 1.0 gpm
NOX, standard in question within available lead time is
taken out of the hands of the Administrator and is made by the
unique Congressional finding of 202(b)(1)(B) (Emphasis added).\319\
---------------------------------------------------------------------------

    \319\ Id.

    Most significant was EPA's explanation of the protectiveness
finding California makes under section 209(b)(1) on EPA's consistency
---------------------------------------------------------------------------
determination. EPA explained:

    California standards need not be identical to their Federal
counterparts, even those established in waiver decisions. An
argument along those lines would be inconsistent with section 209(b)
of the Act. Because California has special air pollution problems,
section 209(b) permits the Administrator to waive Federal preemption
to permit the State of California to implement its own air pollution
control programs that are, in the aggregate, at least as protective
as nationally applicable standards. The import of section 209(b) is
not that California and Federal standards be identical, but that the
Administrator not grant a waiver of Federal preemption where
compliance with the California standards is not technologically
feasible within available lead time, consistent with section
202(a).\320\
---------------------------------------------------------------------------

    \320\ 46 FR 22034-35.

    Lastly, EPA has examined the text of section 177 of the CAA, added
by Congress in the 1977 Amendments. At the time that Congress was
affording California additional programmatic flexibility and policy
deference with the addition of the ``in the aggregate'' language to
section 209(b)(1), Congress added section 177 to allow other States
(those with plan provisions approved under Part D) to adopt
California's new motor vehicle emission standards if certain criteria
are met. Such criteria include that the State standards adopted be
identical to the California standards for which a waiver has been
granted for such model year, and that ``California and such State adopt
such standards at least two years before commencement of such model
year (as determined by regulations of the Administrator).'' \321\ EPA
notes that Congress understood and acted to specify a number of years
of lead time applicable to other States before those States could
enforce standards under section 177. In the same 1977 Amendments,
Congress did not specify that the lead time and stability requirements
in the new section 202(a)(3)(C) were applicable to either California or
to states adopting California's standards under section 177. EPA
believes there is no basis to find or infer that the section
202(a)(3)(C) requirements apply to California. And, as importantly,
Congress established a structure under which California would receive a
waiver for standards that EPA deemed would be feasible (or that
opponents had not demonstrated to be infeasible), with the lead time
provided within the California market, specifically.\322\ Other States
(section 177 States) could enforce California's standards but would
have to allow two years of lead time. It is assumed that these
additional two years would allow manufacturers time to comply with the
expanded market for which the California standards apply, which would
still not be a fully national market subject to EPA standards.\323\

There is no language in section 177 that would require the section 177
states to provide more lead time (an additional two years) in order to
be consistent with the four years of lead time that commenters claim
apply to California. EPA agrees with the CARB comment that it makes
little sense to assume Congress would have provided four years of lead
time for vehicle and engine manufacturers to prepare to comply in the
California market but only two years to prepare for compliance in a
potentially much larger market captured, collectively, in the section
177 States.
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    \321\ 42 U.S.C. 7507(1), 7507(2); Motor Vehicle Mfrs. Ass'n v.
New York State Dep't of Envtl. Conservation, 17 F.3d 527.
    \322\ 78 FR at 2143, n.165.
    \323\ Motor Vehicle Mfrs. Ass'n v. New York State Dep't of
Envtl. Conservation, 17 F.3d 527; American Automobile Mfrs. Ass'n,
31 F.3d 18, 26-27 (1st Cir. 1994).
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    Further, EPA traditionally applies a ``record-based'' review to
determine the actual technological feasibility of California's
standards, and to the degree requisite technology is not currently
available then EPA examines the factual record to determine whether
sufficient lead time is provided for the California market, giving
consideration to cost. In addition, EPA's technological feasibility
assessment is conducted within the confines of the manufacturers'
ability to meet the California standards within California and the
California market.\324\ It is illogical to couple EPA's limited role in
reviewing the feasibility of CARB's standards, confined to the
manufacturers' ability to meet the emission standards for new vehicles
introduced into commerce in California, with the four-year lead time
directive that Congress provided to EPA in setting national new heavy-
duty vehicle emission standards which are required to secure the
greatest degree of emission reduction achievable.
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    \324\ Id. at 2143.
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6. Section 209(b)(1)(C) and 209(e)(2)(A)(iii) Conclusion
    As previously explained, EPA believes that the historical approach
to section 209(b)(1)(C) (and the section 209(e)(2)(A)(iii)) prong
reflects the best reading of the statute. The historical approach is to
evaluate California's program including the changes to that program
reflected in a waiver request for feasibility, and in doing so to
determine whether the opponents of the waiver have met their burden of
proof (as a factual matter) to demonstrate that California's standards
are not technologically feasible, giving consideration to lead time and
cost. Applying this approach with the reasoning noted above, with due
deference to California, I cannot deny the respective waiver requests.
CARB has demonstrated that technologies exist today to meet the most
imminent standards and has identified refinements to emission control
technologies and other emission controls reasonably projected to be
available to meet the emission standards when needed in later model
years. EPA finds that there is no evidence in the record to demonstrate
that CARB's assessments, including those made in the state rulemakings,
are unreasonable. In addition to CARB's demonstration and EPA findings,
the Agency also notes that CARB's regulations include a number of
provisions that may provide, if manufacturers choose to use them,
additional compliance pathways. Therefore, I determine that I cannot
deny either of the two waiver requests under section 209(b)(1)(C).
    In addition, after a review of the text in sections 209, 202, and
section 177, I find that the lead time and stability language Congress
added in 1977 in section 202(a)(3)(C) was only directed at EPA and does
not apply to California by way of EPA's review of section 209(b)(1)(C)
and section 209(e)(2)(B)(iii). Further, EPA has reviewed the
legislative history, EPA's prior waiver decisions, and applicable case
law and concludes that each of these considerations further supports
EPA's textual analysis and conclusion that section 202(a)(3)(C) does
not apply to California and thus EPA cannot deny CARB's waiver requests
on this basis.

E. Other Issues

1. Energy Policy and Conservation Act (EPCA)
    One commenter argued that ZEV mandates are preempted by the Energy
Policy and Conservation Act (EPCA) because they are ``related to'' fuel
economy standards.\325\ The commenter asserted that it would therefore
be ``arbitrary and capricious'' for EPA to grant waivers for the ACT
Regulation and the ZEAS Regulation (that each contain a ZEV mandate)
because ``California's ZEV mandate is void ab initio'' and ``[a]s such,
California does not have a valid waiver request.'' \326\ EPA has long
construed section 209(b) as limiting the Agency's authority to deny
California's requests for waivers to the three listed criteria. This
narrow review approach is supported by decades of waiver practice and
judicial precedent. In MEMA I, the D.C. Circuit held that the Agency's
inquiry under section 209(b) is ``modest in scope.'' \327\ The D.C.
Circuit further noted that ``there is no such thing as a `general duty'
on an administrative agency to make decisions based on factors other
than those Congress expressly or impliedly intended the agency to
consider.'' \328\ In MEMA II, the D.C. Circuit again rejected an
argument that EPA must consider a factor outside the 209(b) statutory
criteria concluding that doing so would restrict California's ability
to ``exercise broad discretion.'' \329\ EPA's duty, in the waiver
context, is thus to grant California's waiver request unless one of the
three listed criteria is met. ``[S]ection 209(b) sets forth the only
waiver standards with which California must comply . . . If EPA
concludes that California's standards pass this test, it is obligated
to approve California's waiver application.'' \330\ EPA has therefore
consistently declined to consider factors outside the three statutory
criteria listed in section 209(b), including preemption under EPCA,
explaining instead that preemption under EPCA is not one of these
criteria.\331\
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    \325\ AFPM at 15-16. EPA notes that this commenter cited to 49
U.S.C. 32903(h)(1) and the action taken in 2019 (``The Safer
Affordable Fuel-Efficient Vehicles (SAFE) Rule Part One: One
National Program''). SAFE 1 at 51320-21. NHTSA subsequently repealed
all regulatory text and appendices promulgated in the SAFE Part One
and made clear that no prior regulations or positions of the Agency
reflect ongoing NHTSA views on the scope of preemption of states or
local jurisdictions under EPCA. 86 FR 74236 (Dec. 29, 2021). EPA
also notes that the ``related to'' language that was the subject of
SAFE Part One and the subsequent repeal is in 49 U.S.C. 32919.
    \326\ AFPM at 15-16.
    \327\ MEMA I, 627 F.2d at 1119.
    \328\ Id. at 1116 (acknowledging that ``the Administrator must
be sensitive to [CAA] section 207 concerns in approaching a waiver
decision,'' but concluding that ``he has no duty beyond that to
consider claims of anti-competitiveness in a waiver proceeding'').
    \329\ MEMA II, 142 F.3d at 464 (rejecting a claim that
California's standards must comply with CAA section 202(m) because
``it would appear virtually impossible for California to exercise
broad discretion if it had to comply with every subsection of
section 202 that cross-referenced subsection (a).'').
    \330\ Id. at 462-63.
    \331\ 87 FR 14332, 14372 (March 14, 2022) (rescinding the SAFE 1
waiver withdrawal partially premised on EPCA preemption because, in
part, ``[c]onsideration of preemption under EPCA is beyond the
statutorily prescribed criteria for EPA in section 209(b)(1).'').
The sole instance that EPA considered preemption under EPCA in a
waiver proceeding was in SAFE Part One, a joint-rulemaking with
NHTSA, where EPA simultaneously explained that the Agency ``d[id]
not intend in future waiver proceedings concerning submissions of
California programs in other subject areas to consider factors
outside the statutory criteria in section 209(b)(1)(A)-(C).'' SAFE 1
at 51338. EPA subsequently rescinded that decision, finding that
``the joint-action context of SAFE 1 [w]as an insufficient
justification for deviating from its statutory authority and the
Agency's historical practice'' of ``limiting its waiver review to
the criteria in section 209(b)(1).'' 87 FR at 14371-73. EPA hereby
incorporates by reference the reasoning in this decision. See also,
43 FR 32182, 32184 (July 25, 1978) (rejecting objections to the
procedures at state level, objections that section 207(c)(3)(A)
establishes field protection, and constitutional objections all as
beyond the ``narrow'' scope of the Administrator's review); 74 FR
32744, 32783 (July 8, 2009) (declining to consider EPCA preemption,
stating that ``section 209(b) of the Clean Air Act limits our
authority to deny California's requests for waivers to the three
criteria therein.''); 78 FR 2112, 2145 (Jan. 9, 2013), 79 FR 46256,
46264 (Aug. 7, 2014) (reiterating that EPA can only deny a waiver
request based on the 209(b) statutory criteria, dismissing comments
on preemption under EPCA, as well as the Constitution and the
implications of the Federal Aviation Administration Authorization
Act of 1994).

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

    In evaluating CARB's two waiver requests, including the ACT and
ZEAS Regulations, EPA has not considered preemption under EPCA. As in
previous waiver evaluations, the decision on whether to grant or deny
these waiver requests is based solely on the criteria in section
209(b). Evaluation of whether these regulations are preempted under
EPCA is not among the criteria listed under section 209(b). EPA may
only deny waiver requests based on the criteria in section 209(b), and
preemption under EPCA is not one of those criteria. In considering
California's request for a waiver, I therefore have not considered
whether California's standards are preempted under EPCA. As in previous
waiver decisions, the decision on whether to grant the waiver is based
solely on criteria in section 209(b) of the Clean Air Act and this
decision does not attempt to interpret or apply EPCA.\332\
---------------------------------------------------------------------------

    \332\ EPA notes that both courts that have considered whether
EPCA preempts greenhouse-gas emission standards have concluded that
it does not. See, e.g., Cent. Valley Chrysler-Jeep, Inc. v.
Goldstene, 529 F. Supp. 2d 1151, 1153-54 (E.D. Cal. 2007), as
corrected Mar. 26, 2008; Green Mountain Chrysler Plymouth Dodge Jeep
v. Crombie, 508 F. Supp. 2d 295, 300-01 (D. Vt. 2007).
---------------------------------------------------------------------------

2. Equal Sovereignty and Other Constitutional Issues

    One commenter objected to both the ACT and ZEAS Regulations because
``[b]y authorizing California, and only California, to set its own
motor vehicle emission standards, Section 209(b) violates the
constitutional equal sovereignty doctrine.'' \333\ The commenter
claimed that Section 209(b) is ``unconstitutional in all its
applications'' or, in the alternative, ``to the extent it is construed
to allow California to set emission standards aimed at addressing
global climate change, as opposed to California's local conventional
pollution problems.'' \334\ Another commenter objected to the ACT
Regulation as it ``calls for measures that may violate other
constitutional provisions and principles.'' 335 336 EPA has
previously considered equal sovereignty objections to waiver requests
as outside the scope of EPA's review and incorporates the reasoning in
that prior decision as it pertains to the constitutional claims raised
by commenters.\337\
---------------------------------------------------------------------------

    \333\ AFPM at 2.
    \334\ Id.
    \335\ Valero at 8-10. This commenter claimed that EPA's grant of
a waiver represents a major question that was not contemplated by
Congress. That claim is addressed above in Section III.C. This
commenter also provided a list of other possible constitutional
constraints that it believes the ACT Regulation may violate (e.g.,
Dormant Commerce Clause, dormant foreign affairs preemption doctrine
under the Supremacy Clause, the Takings Clause of the Fifth
Amendment, and the Equal Sovereignty doctrine). EPA notes that it is
unclear whether this commenter requested EPA to not grant the ACT
Regulation waiver request based on these latter possible
constraints. Nevertheless, EPA notes (as discussed in this section)
that EPA's task in reviewing California's waiver requests is limited
to the criteria in section 209(b) and therefore provides no
assessment of these claims.
    \336\ The same commenter (Valero) raises miscellaneous claims
not related to constitutional issues that we also address here.
Valero claims that granting the ACT waiver exceeds EPA's statutory
authority because the ACT allegedly ``bans internal combustion
engines,'' has ``vast nationwide political and economic
significance,'' would be ``beyond the scope of the type of emission
standards the waiver was originally intended to accommodate,'' and
accomplishes what failed Congressional bills would have done. Valero
Comment 6, 8. EPA disagrees. The ACT constitutes standards for the
control of emissions from motor vehicles, and thus clearly falls
within the scope of section 209(a) preemption and EPA's authority to
waive preemption under section 209(b)(1). Moreover, while the ACT
increases the stringency of California's program, the requirements
it imposes are not different in kind from earlier California ZEV
rules for which EPA has waived preemption. See 71 FR 78190 (December
28, 2006) and Decision Document at EPA-HQ-OAR-2004-0437-0173, at 35-
46) (explaining that certain earlier California ZEV requirements
constituted emissions standards and waiving preemption for such
standards under section 209(b)); 58 FR 4166 (January 13, 1993)
(granting a waiver for California's first Low Emission Vehicle (LEV
I) regulation that include the original California ZEV standards
that were adopted in 1990). Valero's reference to failed
Congressional bills is inapposite given the clear language of
section 209. See also Public Law 117-169, tit. VI, Subtitle A,
section 60105(g), 136 Stat. 1818, 2068-69 (2022) (providing funds
for EPA to issue grants specifically to states to support their
adoption of California's greenhouse-gas and zero-emission vehicle
standards under Section 177). Moreover, the major questions
doctrine, to the extent Valero is invoking it, does not apply to
California's exercise of its police powers, nor to EPA's waiver of
preemption to preserve the State's exercise of such powers. See
supra fn. 135. Valero further claims that EPA must consider wide-
ranging impacts of granting the waiver (e.g., on the nationwide
distribution of goods, renewable fuels, petroleum refiners, chemical
manufacturing, agricultural sector, international and military
consequences, etc.). Valero Comment 6-9. However, this is belied by
the statutory waiver criteria in section 209(b), which require EPA
to grant a waiver unless the agency makes one of the three statutory
findings. See MEMA I, 627 F.2d at 1118 (Section 209 does not require
EPA to consider the social costs of pollution control, for
``Congress, not the Administrator, made the decision to accept those
costs.''). Finally, Valero suggests that granting the waiver is
inconsistent with Congress's mandates designed to promote renewable
fuels under the federal Renewable Fuel Standard. Valero Comment 6.
However, nothing in section 209(b) suggests EPA must consider
consistency with the Renewable Fuel Standard program in deciding to
grant a waiver. See also section 211(o)(12) (``Nothing in this
subsection . . . shall affect or be construed . . . to expand or
limit regulatory authority regarding carbon dioxide or any other
greenhouse gas, for purposes of other provisions . . . of this
chapter.'').
    \337\ 87 FR 14332, 14376-77 (March 14, 2022). See also, 42 FR
2337, 2338 (January 11, 1977); 41 FR 44209, 44212 (October 7, 1976).
---------------------------------------------------------------------------

    As EPA has long stated, ``the Agency's task in reviewing waiver
requests is properly limited to evaluating California's request
according to the criteria in section 209(b), and . . . it is
appropriate to defer to litigation brought by third parties in other
courts, such as state or federal court, for the resolution of
constitutionality claims and inconsistency, if any, with other
statutes.'' \338\ EPA's longstanding practice, affirmed by judicial
precedent, has been to refrain from considering factors beyond section
209(b)(1) criteria, including constitutional claims, in evaluating
California waiver requests.\339\ For example, in 1978 EPA declined to
consider First Amendment and Due Process objections to a waiver
request, stating that constitutional arguments ``are beyond the scope
of [the Administrator's] review, and the waiver hearing is not a proper
forum in which to raise them.'' \340\ The D.C. Circuit agreed with the
Administrator's position, that there was no obligation to consider
these constitutional objections, because ``it is generally considered
that the constitutionality of Congressional enactments is beyond the
jurisdiction of administrative agencies.'' \341\ Additionally, in 2009,
EPA declined to consider comments that California's transport
refrigeration unit (TRU) Rule violated the Dormant Commerce Clause,
stating that ``EPA's review of California's regulations is limited to
the

criteria that Congress directed EPA to review.'' \342\ The D.C. Circuit
again concluded that this constitutional claim was outside the scope of
EPA's review, agreeing with EPA that the commenters had sought to
``improperly . . . engraft a type of constitutional Commerce Clause
analysis onto EPA's Section 7543(e) waiver decisions that is neither
present in nor authorized by the statute.'' \343\ Such a question, the
Court noted, is ``best directed to Congress.'' \344\
---------------------------------------------------------------------------

    \338\ Id.
    \339\ EPA has declined to consider constitutional challenges to
California Waivers since at least 1976. 41 FR 44212 (Oct. 7, 1976)
(``An additional argument against granting the waiver was raised by
the Motorcycle Industry Council and Yamaha, who contended that the
CARB had violated due process when adopting their standards, by not
allowing the manufacturers a fair and full opportunity to present
their views at a State hearing. If this argument has any validity,
the EPA waiver hearing is not the proper forum in which to raise it.
Section 209(b) does not require that EPA insist on any particular
procedures at the State level. Furthermore, a complete opportunity
was provided at the EPA waiver hearing for the presentation of
views.''). See also, e.g., 43 FR 32182, 32184 (July 25, 1978)
(rejecting objections to the procedures at state level, objections
that section 207(c)(3)(A) establishes field protection, and
constitutional objections all as beyond the ``narrow'' scope of the
Administrator's review).
    \340\ 43 FR at 32185.
    \341\ MEMA I, 627 F.2d at 1114-15 (holding that EPA did not need
to consider whether California's standards ``unconstitutionally
burden[ed] [petitioners'] right to communicate with vehicle
purchasers.'').
    \342\ Decision Document, EPA-HQ-OAR-2005-0123-0049 at 67.
    \343\ ATA v. EPA, 600 F.3d 624, 628 (D.C. Cir. 2010) (quoting
the U.S. brief). In a footnote to this statement, the Court said ATA
could attempt to bring a constitutional challenge directly (which
would argue that the waiver unconstitutionally burdens interstate
commerce) but ``express[ed] no view on that possibility.'' Id. at
n.1.
    \344\ Id. at 628.
---------------------------------------------------------------------------

    EPA notes that Congress struck a deliberate balance in 1967, when
it chose to authorize two standards--the Federal standard and
California's standards--rather than one national standard or 51
individual state standards.\345\ EPA believes this balance reflected
Congress's desire for California to serve as a laboratory of innovation
and Congress's understanding of California's extraordinary pollution
problems on the one hand, and its desire to ensure that automakers were
not subjected to too many different standards on the other. Congress
reaffirmed this balance in 1977 when it amended the Clean Air Act to
allow other states facing similar air quality problems the option of
adopting California's new waived motor vehicle standards.\346\ Thus
Congress has consistently and repeatedly made determinations regarding
California's important role in driving advancements in motor vehicle
emissions control (which benefit all Americans when subsequently
reflected in federal standards) and the value of providing states with
two regulatory pathways to address motor vehicle emissions.
---------------------------------------------------------------------------

    \345\ Motor vehicles are ``either `federal cars' designed to
meet the EPA's standards or `California cars' designed to meet
California's standards.'' Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075,
1079-80, 1088 (D.C. Cir. 1996) (``Rather than being faced with 51
different standards, as they had feared, or with only one, as they
had sought, manufacturers must cope with two regulatory
standards.'').
    \346\ Under section 177, ``any State which has plan provisions
approved under this part may adopt and enforce'' identical
California standards and delineates three specific criteria for
adoption.
---------------------------------------------------------------------------

    In evaluating CARB's two waiver requests, including the ACT and
ZEAS Regulations, EPA has not considered whether section 209(a) and
section 209(b) are unconstitutional under the Equal Sovereignty
Doctrine. As in previous waiver evaluations, the decision on whether to
grant or deny the waiver is based solely on the criteria in section
209(b) and this decision does not attempt to interpret or apply the
Equal Sovereignty Doctrine or any other constitutional provision.

IV. Decision

    After evaluating California's 2018 HD Warranty Amendments, ACT
Regulations, ZEAS Regulations, and the ZEP Certification Regulations,
CARB's submissions, relevant adverse comment, and other comments in the
record, EPA is granting a waiver of preemption and authorization, as
applicable, for each of these regulations.

A. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the United States Court of Appeals for the
District of Columbia Circuit: (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion whether to invoke the
exception in (ii).
    This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). In the alternative, to the extent a court
finds this final action to be locally or regionally applicable, the
Administrator is exercising the complete discretion afforded to him
under the CAA to make and publish a finding that this action is based
on a determination of ``nationwide scope or effect'' within the meaning
of CAA section 307(b)(1), for several reasons.\347\ This final action
will not only affect manufacturers of new heavy-duty vehicles and
engines sold in California, but also manufacturers that sell their new
heavy-duty vehicles and engines in those states that have already
adopted or may choose to adopt California's regulations.\348\ For
example, five states have already adopted California's ACT
Regulation.\349\ These jurisdictions represent a wide geographic area
that falls within three judicial circuits.\350\
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    \347\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
his judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of Agency resources.
    \348\ See CAA section 177.
    \349\ Massachusetts, New Jersey, New York, Oregon, and
Washington have adopted the ACT Regulation.
    \350\ In the report on the 1977 Amendments that revised CAA
section 307(b)(1), Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
32.
---------------------------------------------------------------------------

    Furthermore, the regulations that are the subject of today's action
are part of California's on-highway for which EPA may waive preemption
under CAA section 209. As required by statute, in evaluating the waiver
criteria in this action, EPA considers not only the HD emissions
regulations in isolation, but in the context of the entire California
program.\351\ Moreover, EPA generally applies a consistent statutory
interpretation and analytical framework in evaluating and deciding
various waivers under CAA section 209. EPA also relies on the extensive
body of D.C. Circuit case law developed by that court since 1979 as it
has reviewed and decided judicial challenges to these actions. As such,
judicial review of any challenge to this action in the D.C. Circuit
will centralize review of national issues in that court and advance
other Congressional principles underlying CAA section 307(b)(1) of
avoiding piecemeal litigation, furthering judicial economy, and
eliminating the risk of inconsistent judgments.
---------------------------------------------------------------------------

    \351\ See CAA sections 209(b)(1)(B) and 209(e)(2)(A) (requiring
that the protectiveness finding be made for California's standards
``in the aggregate'').
---------------------------------------------------------------------------

    For these reasons, this final action is nationally applicable or,
alternatively, the Administrator is exercising the complete discretion
afforded to him by the CAA and hereby finds that this final action is
based on a determination of nationwide scope or effect for purposes of
CAA section 307(b)(1) and is hereby publishing that finding in the
Federal Register. Under section 307(b)(1) of the CAA, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the District of Columbia Circuit by June 5, 2023.

V. Statutory and Executive Order Reviews

    As with past authorization and waiver decisions, this action is not
a rule as defined by Executive Order 12866. Therefore, it is exempt
from review by the Office of Management and Budget as required for
rules and regulations by Executive Order 12866. In addition, this
action is not a rule as defined in the Regulatory Flexibility Act, 5
U.S.C.

601(2). Therefore, EPA has not prepared a supporting regulatory
flexibility analysis addressing the impact of this action on small
business entities. Further, the Congressional Review Act, 5 U.S.C. 801,
et seq., as added by the Small Business Regulatory Enforcement Fairness
Act of 1996, does not apply because this action is not a rule for
purposes of 5 U.S.C. 804(3).

    Dated: March 30, 2023.
Michael S. Regan,
Administrator.
[FR Doc. 2023-07184 Filed 4-5-23; 8:45 am]
BILLING CODE 6560-50-P