70) The NLEV program would, as its name suggests, provide for motor vehicle emissions standards more stringent than the current federal standards in the 49 states other than California.
The fundamental structure of the NLEV program is based on the auto manufacturers' initial proposal made during the OTC LEV rule comment period.
The key substantive provision of the NLEV rule provides that auto manufacturers would sell TLEVs, LEVs, and ULEVs, as certified under the California LEV program, to meet an increasingly more stringent fleet average emissions requirement throughout the 49 states (i.
Circuit Court ruling underscores the EPA's apparent lack of authority to enforce the NLEV rule in all 49 states.
In its final NLEV regulation, adopted after and notwithstanding the court's decision in Virginia v.
Crucial to EPA's theory is the Agency's insistence that the NLEV standards would be "voluntary.
The legal validity of the NLEV program ultimately seems to hinge on the legitimacy of both the EPA's voluntary/mandatory distinction, and the EPA's assumption of an extremely broad grant of authority under the CAA to promulgate a regulation neither contemplated by Congress nor suggested by the legislation.
Opt-In and Opt-Out Conditions in the NLEV Regulation
The NLEV rule establishes only one primary condition for any party choosing to opt into the NLEV program: a promise not to challenge the EPA's legal authority to enforce the program.
Of course, if EPA does in fact lack legal authority to establish and enforce the NLEV program, then it seems likely that the auto manufacturers' commitment not to challenge such authority also would be unenforceable.
Conditions to opt out of the NLEV program, on the other hand, are significantly more restrictive.
The EPA managed to arrive at the creative NLEV regulation -- which was not contemplated, nor even vaguely suggested, by Congress when it drafted the 1990 Amendments to the CAA -- through its revolutionary, negotiation-style rulemaking procedure.