The controversy dates to 2016, when the Environmental Protection Agency noted that the Clean Air Act prohibits tampering with emissions controls on motor vehicles and that while cars made for competition purposes are excluded from that ban, regular cars are not.
Racing Enthusiasts and Suppliers Coalition argued that the EPA’s statement amounted to a reversal of long-standing regulations allowing vehicle modifications for racing purposes, although the government maintained the agency merely clarified its prior policy and never intended to change it.
The trade group said the Clean Air Act defines a “motor vehicle” as “any self-propelled vehicle designed for transporting persons or property on a street or highway.” Because competition-use-only cars are not designed to transport persons or property, they said race cars should be exempt from the CAA’s anti-tampering provision.
But Senior U.S. Circuit Judge Douglas Ginsburg said the trade association — which represents businesses that manufacture, distribute and sell automotive aftermarket products — has not explained how its members have been harmed by the EPA’s statement.
“It’s totally conclusory, and we don’t know what people are doing or what the effect is,” Judge Ginsburg told Hunton Andrews Kurth LLP partner Shannon S. Broome, who argued for the trade group. She said the EPA’s wording has and will continue to harm the economic interests of the group’s members.
To have legal standing to bring claims under Article III of the U.S. Constitution, the challenger must show it has suffered a concrete or imminent injury traceable to the issue in dispute and that a ruling in its favor is likely to redress the harm. A member of the trade group did file a declaration stating that his business, which sells auto parts for competition-only vehicles, has and will continue to be harmed by the EPA’s move and that he has to expend resources on compliance.
However, the senior circuit judge said he didn’t think the declaration was enough to demonstrate injury. And he said the allegations the trade group presented “are broad and they are not supported by any exhibits.”
“You seemed to have assumed that somehow we would take into account the world of automobile racing, of which I know nothing,” Judge Ginsburg said to Broome.
The attorney maintained that her clients’ court filings included several references to information about the industry and suggested she could file a supplemental brief to bolster the group’s standing argument.
“We’re looking for some evidence,” Judge Ginsburg interjected, “and I’m not finding any.”
The EPA has said the group is challenging a preamble text that clarifies the preexisting tampering prohibition and stated that the CAA’s competition exemption applies only to race cars. The challenged preamble text has no legal effect and therefore does not constitute a final action, so the circuit court lacks jurisdiction over this claim, according to the agency.
But Broome claimed the CAA does not ban converting regular motor vehicles into a competition-use-only cars, and she accused the EPA of overstepping its statutory and rulemaking authority by determining that it is unlawful to do so.
Circuit Judge Gregory Katsas, who also seemed dubious of the group’s standing argument, said the legal challenge is “odd.” The judge expressed doubts that the agency acted arbitrarily and capriciously, and he noted that the EPA’s 2016 preamble had declined to adopt the agency’s initial plan to make it “crystal clear that you can’t covert motor vehicle into a race car.”
“That didn’t hurt you. That was actually helpful to you,” Judge Katsas told Broome.
The EPA in 2016 dropped the proposed clarifying language regarding modification for racing purposes in response to outcry from the racing industry and federal lawmakers.
Broome acknowledged that the EPA did not implement the rule, but she claimed the agency proceeded to make other regulatory changes to accomplish the same outcome.
The agency said in 2016 that it supports motor sports and their contributions to the American economy. The EPA also stated that its focus was not on vehicles built or used exclusively for racing, but on companies “that don’t play by the rules” and that make and sell products that disable pollution controls on motor vehicles used on public roads.
Judge Ginsburg didn’t seem sold on the notion that a preamble statement is a final agency action. If there was any final agency action, he said, it would be the EPA’s decision to drop its proposed emissions limits on race cars.
The EPA’s action under review is connected to Obama-era rules that set greenhouse gas emissions and fuel-efficiency standards for heavy-duty truck trailers for the first time.
This litigation was formerly consolidated with Truck Trailer Manufacturers v. EPA, a case that challenged different provisions of the Obama-era rules, which the EPA and the National Highway Traffic Safety Administration jointly issued and a D.C. Circuit panel ultimately blocked from taking effect. The circuit court moved last year to have this case proceed.
U.S. Department of Justice attorney Sue Chen, who argued for the EPA on Wednesday, told the three-judge panel that the 2016 clarifications broke no new ground because the agency simply restated the competition exemption’s existing scope.
Circuit Judge Justin Walker suggested the EPA may win on standing, but he skeptically questioned why the agency supports amateur racers if they pollute the environment and defy the will of Congress. Chen replied that the agency supports racing, not tampering. She added that not all amateur racers engage in the practice.
U.S. Circuit Judges Gregory Katsas, Justin Walker and Douglas Ginsburg sat on the panel for the D.C. Circuit.
Racing Enthusiasts and Suppliers Coalition is represented by Shannon S. Broome, Charles H. Knauss and Erin Grisby of Hunton Andrews Kurth LLP.
The EPA is represented by Todd Kim and Sue Chen of the U.S. Department of Justice’s Environment & Natural Resources Division.
The case is Racing Enthusiasts and Suppliers Coalition v. U.S. Environmental Protection Agency et al., case number 16-1447, in the U.S. Court of Appeals for the District of Columbia Circuit.
–Additional reporting by Clark Mindock and Juan Carlos Rodriguez. Editing by Jill Coffey.
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