Adoption of the NLEV program raises several fundamental legal issues.
A discussion of these legal questions begins with a survey of the path that the EPA, the states, and the auto manufacturers have traveled to arrive at the novel NLEV plan.
The manufacturers proposed a "49-state" low-emission vehicle program -- now called the "National Low-Emission Vehicle" ("NLEV" or "National LEV") program.(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.
Instead of enforcing the OTC LEV program, the EPA embarked on a policy of fostering discussions between the Northeast states, the auto manufacturers, and other interested parties to design a "National LEV" (or "NLEV") program.
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.e., all states other than California, which would retain its own CAL LEV program).(84) The NLEV standards are more stringent than the current standards.
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." That is, the EPA would not actually require the auto manufacturers to comply with the NLEV standards.
By the time NLEV
was finalized in January 1998, cleaner technology had moved so much faster than the industry had predicted that NLEV
"was already obsolete," says Sheila Lynch, who served on the Federal Advisory Committee to the EPA for the northeastern states.
Model Year Technology CO HC 1974 Pre-catalyst 28 3.0 1975-1976 First Catalysts 15 1.5 1977-1979 Oxidation Catalyst 15 1.5 1980 Oxidation Catalyst 7.0 0.41 1981-1993 Tier O 3.4 0.41 1994-1999 Tier 1 3.4 0.25 (b) 1999-2003 (a) NLEV
1.7-3.4 0.040.125 (b) 2004-Present (c) Tier 2 2.1-4.2 0.010.125 (b) Model Year N[O.sub.x] PM 1974 3.1 1975-1976 3.1 1977-1979 2 1980 2.0 1981-1993 1.0 0.20 1994-1999 0.4 0.08 1999-2003 (a) 0.2-0.4 0.08 2004-Present (c) 0.02-0.20 0.01-0.02 (a) Range of standards for light duty vehicles (b) NMOG (c) 120,000 mile levels for Bin 2-Bin 8 Table 6.