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.
The NLEV negotiating process began when the American Automobile Manufacturers Association ("AAMA"), representing the "Big Three" auto manufacturers -- General Motors, Ford, and Chrysler -- proposed a 49-state alternative program in response to the OTC's petition for the EPA to enforce CAL LEV in the Northeast.
Moreover, as Professor William Funk cautioned under analogous circumstances, the NLEV negotiating procedure, by giving effect to a consensus achieved by the two negotiating parties, seems to foster the development of an extra-legal regulation.
The regulatory process through which the EPA has crafted the NLEV program differs from that prescribed by the Negotiated Rulemaking Act in key ways.
In fact, all three of these problems seem to have been central characteristics of the NLEV negotiation.