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Adopted 6 NYCRR Parts 218 and 200 Revised Regulatory Impact Statement

1. Statutory authority

The statutory authority for this amendment is the Environmental Conservation Law (ECL) Sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 19-1101, 19-1103, 19-1105, 71-2103, 71-2105 and Section 177 of the federal Clean Air Act (42 USC 7507).

Section 1-0101(1) outlines the policy declaration for the Department regarding the protection of New York State's environment and natural resources including the control of "air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social wellbeing." Section 1-0101(3)(e) states:

It shall... be the policy of the state to foster, promote, create and maintain conditions under which man and nature can thrive in harmony with each other, and achieve social, economic and technological progress for present and future generations by…[p]roviding that care is taken for the air... and other resources that are shared with the other states of the United States and with Canada in the manner of a good neighbor.

Section 1-0303(19) of the ECL defines "pollution" as:

The presence in the environment of conditions and or contaminants in quantities of characteristics which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout such areas of the state as shall be affected thereby.

Section 3-0301(1)(a) of the ECL gives the Commissioner authority to "[c]oordinate and develop policies, planning and programs related to the environment of the state and regions thereof…" Pursuant to Section 3-0301(1)(b) of the ECL, the Commissioner is charged with promoting and protecting the air resources of New York including providing for the prevention and abatement of air pollution.

Section 3-0301(2)(a) permits the Commissioner to adopt rules and regulations to carry out the purposes and provisions of the ECL. Section 3-0301(2)(g) allows the Commissioner to enter and inspect sources of air pollution and to verify compliance. Section 3-0301(2)(m) gives the Commissioner authority to "adopt rules, regulations, and procedures as may be necessary, convenient, or desirable to effectuate the purposes of this chapter." Under Section 3-0301(2)(n) of the ECL, the Commissioner has the authority to "study, monitor, control and regulate pollution from motor vehicle exhaust emissions." The Commissioner's authority under Section 3-0301(2)(n) is expressly granted to further the State's policy to "[c]onserve, improve and protect its natural resources and environment and control… air pollution, in order to enhance the health, safety and welfare of the people of the state…"

ECL Section 19-0103 is a declaration of the State's policy with specific reference to air pollution.

It is declared to be the policy of the State of New York to maintain a reasonable degree of purity of the air resources of the State… and to that end to require the use of all available practical and reasonable methods to prevent and control air pollution.

Section 19-0105 sets out the purpose of ECL Article 19, "to safeguard the air resources of the State from pollution" consistent with the policy expressed in section 19-0103 and in accordance with other provisions of Article 19.

Under ECL Section 19-0107(2) "air contaminant" is defined as "a dust, fume, gas, mist, odor, smoke, vapor, pollen, noise or any combination thereof." Under ECL Section 19-0107(4) "air contamination" is defined as "the presence in the outdoor atmosphere of one or more air contaminants which contribute or which are likely to contribute to a condition of air pollution." Under ECL Section 19-0107(3) "air pollution" is defined as:

the presence in the outdoor atmosphere of one or more air contaminants in quantities, of characteristics and of a duration which are injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout the state or throughout such areas of the state as shall be affected thereby...

The definition of "air contamination source" found in ECL 19-0107(5) specifically includes motor vehicles.

Sections 19-0301(1)(a) and (b) of the ECL state that:

1. Consistent with the policy of the state as it is declared in section 19-0103; the department shall have power to:

a. Formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling or prohibiting air pollution in such areas of the state as shall or may be affected by air pollution…

b. Include in any such codes and rules and regulations provisions establishing areas of the state and prescribing for such areas (1) the degree of air pollution or air contamination that may be permitted therein, (2) the extent to which air contaminants may be emitted to the air by any air contamination source...

Section 19-0301(2)(a) of the ECL provides:

2. It shall be the duty and responsibility of the department to:

Prepare and develop a general comprehensive plan for the control or abatement of existing air pollution and for the control or prevention of any new air pollution recognizing various requirements for different areas of the state…

ECL Section 19-0305 provides the Commissioner with general enforcement power. ECL Sections 71-2103 and 71-2105 set forth the civil and criminal penalty structures for violations of Article 19. In addition to the above New York State authority, Section 177 of the federal Clean Air Act (42 USC 7507) (Act) permits states other than California to adopt emission standards for motor vehicle emissions, provided that such standards are identical to California's standards. In addition to the above reference to the Act, Massachusetts v. EPA, 549 U.S. 497 (2007), Green Mountain Chrysler Plymouth v Crombie, 508 F.Supp.2d 295 (2007), Central Valley Chrysler-Jeep v Goldstene, 529 F.Supp.2d 1151 (2007/2008), as well as New York State specific cases, have made clear that states have the authority to adopt California's motor vehicle emission standards for a variety of pollutants.

2. Legislative objectives

Articles 1 and 3 of the ECL set out the overall state policy goal of reducing air pollution and providing clean, healthy air for the citizens of New York. These Articles provide general authority to adopt and enforce measures to achieve this goal, including the regulation of mobile sources of air pollution.

In addition to the general powers and duties of the Department and Commissioner to prevent and control air pollution found in Articles 1 and 3 of the ECL, Article 19 of the ECL was specifically adopted for the purpose of safeguarding the air resources of New York from pollution. To facilitate this purpose, the legislature bestowed specific powers and duties on the Department, including the power to formulate, adopt, promulgate, amend, repeal and enforce regulations for preventing, controlling and prohibiting air pollution. The Department is "expressly authorized to promulgate extensive regulations limiting exhaust emissions from motor vehicles including adoption of California certification standards." (See MVMA v. Jorling, 152 Misc.2d 405 (N.Y. Sup. September 3, 1991.) This authority also specifically includes promulgating rules and regulations for preventing, controlling or prohibiting air pollution in such areas of the State as shall or may be affected by air pollution, and provisions establishing areas of the State and prescribing for such areas (1) the degree of air pollution or air contamination that may be permitted therein, and (2) the extent to which air contaminants may be emitted to the air by any air contamination source. In addition, this authority also includes the preparation of a general comprehensive plan for the control or abatement of existing air pollution and for the control or prevention of any new air pollution recognizing various requirements for different areas of the State.

Based on the above, the Commissioner has very broad authority to regulate air pollution, including emissions from motor vehicles. The Department is adopting amendments to existing greenhouse gas (GHG) standards which were originally adopted November 8, 2005 and revised periodically. This adopted revision clarifies that the deemed-to-comply (DTC) provision for model years 2021-2025 only applies to those federal standards which were last amended as part of the October 16, 2015 rulemaking. This regulation package will further the goals of reducing air pollution from motor vehicles by requiring cleaner California certified vehicles and engines be sold in New York. This is not a mandate on local governments pursuant to Executive Order 17.

In choosing to adopt and implement California standards, Section 177 states are limited to adopting identical emission standards and may not do anything that would create an undue burden on the manufacturer by either preventing the sale of a car certified to California standards, or by requiring the creation of a "third vehicle." New York has chosen to adopt California's more stringent motor vehicle standards, since the early 1990's, to obtain emission reductions from new motor vehicles not provided by federal new motor vehicle standards in furtherance of the Department's mission and obligation to control air pollution.

3. Needs and benefits

New York has made considerable progress in improving its air quality; however, several areas of the State still do not meet federal health based national ambient air quality standards (NAAQS) for ozone and have been categorized as non-attainment areas1. The Department is also tasked with mitigating the effects of global warming. The Department has the obligation to regulate and mitigate criteria pollutant and greenhouse gas (GHG) emissions from mobile sources to safeguard the health of State residents and protect the State's environment.

On-road mobile sources in New York emit a substantial portion of ozone precursors. Ground-level ozone is formed by photochemical reactions when emissions of nitrogen oxides (NOx) and volatile organic compounds (VOC) mix under sunny, hot conditions. In 2014, on-road light-duty vehicles emitted approximately 65,600 tons of VOC and 72,600 tons of NOx annually2. In 2014, the transportation sector accounted for approximately 34 percent of all GHG emissions in New York State3. It is essential that the Department continue to adopt stringent mobile source emissions standards to protect human health and the environment.

Increased concentrations of ground-level ozone that is directly related to increased GHG emissions, can promote respiratory illness in children and the elderly, and exacerbate pre-existing respiratory illnesses. Ground-level ozone can also impair lung function in otherwise healthy people. This can result in significant hospitalization costs and mortality rates, both of which are higher in New York State than the national average. In 2011, the total cost of asthma related hospitalization in New York State was approximately $660 million4. Approximately 258 State residents per year died from asthma during the 2009 to 2011 timeframe5.

Global warming may have adverse impacts on human health and the environment. These impacts include increased heat illnesses and mortality, respiratory illnesses from increased formation of ground-level ozone and the introduction or spread of vector-borne illnesses. Global warming may adversely impact New York State's shoreline, drinking water sources, agriculture, forests and wildlife diversity.

New York's statewide annual average temperature has increased approximately 2.4 degrees Fahrenheit since 1970, with winter average temperature increasing approximately 4.4 degrees6. New York is receiving more precipitation, but with more pronounced variability and downpours. While winter precipitation is increasing, the amount of snow cover is decreasing. Sea level along New York's coastline has increased more than a foot since 1900. Growing seasons are changing in New York with the first leaf and bloom dates occurring more than 8 days and more than 4 days earlier respectively. Population ranges for species of trees, birds, and fish are also shifting northward.

New York first adopted the California low emission vehicle program in Part 218 in 1990, and has updated Part 218 frequently to maintain identical standards for a given weight class as required under Section 177 of the Act. The Department initially adopted California GHG standards November 8, 2005 as a part of our new motor vehicle emissions program as permitted under the Act. The GHG standards were revised June 6, 2010 to allow vehicle manufacturers the voluntary enforcement option to demonstrate compliance based on pooled vehicle sales rather than state-by-state vehicle sales.

DEC adopted the next GHG revision on November 2, 2010; it incorporated a DTC provision for model years 2012-2016. The DTC provision was the result of lengthy negotiations among CARB, EPA, NHTSA, and vehicle manufacturers to establish unified national GHG standards. New York, the other Section 177 states, non-governmental organizations, and other stakeholders supported the negotiations and resulting unified standards. The DTC provision gives vehicle manufacturers the voluntary enforcement option of demonstrating compliance using less stringent federal GHG standards in lieu of existing California standards. California agreed to the slightly reduced stringency on the premise that slightly lower standards would be applied to more vehicles nationally, resulting in greater GHG reductions. DEC adopted updated California GHG standards for model years 2017-2025 on November 9, 2012 as part of the Advanced Clean Cars (ACC) standards. DEC adopted the latest GHG revision on October 16, 2015; which incorporated an extension of the DTC provision for model years 2017-20257.

Revised federal GHG standards, and other actions, recently proposed by U.S. EPA have necessitated a review of the DTC provision by California, New York, and other Section 177 states. The proposed federal GHG standards roll back the existing standards for model years 2021-2025 to model year 2020 standards. This results in federal standards that are significantly less stringent that California's standards adopted in 2012 as part of the ACC program.

The Department is amending Part 218 to incorporate California's latest clarifications to the GHG program. The adopted revisions clarify that the version of the federal program to which the DTC applies is the program included in federal regulations for model years 2021-2025 that were last amended on October 25, 2016. This revision is necessary to ensure that if the U.S. EPA GHG standards for these model years are rolled back they will not impact new vehicles sold in New York or California. If U.S. EPA reduces the stringency of the federal standards as proposed, vehicle manufacturers will no longer be allowed to use the enforcement option of demonstrating compliance with less stringent federal GHG standards in lieu of California standards for 2021 and subsequent model years. All new 2021 and subsequent model year passenger cars, light-duty trucks, and medium-duty passenger vehicles up to 10,000 pounds gross vehicle weight rating (GVWR) delivered for sale in New York will be required to be certified to California GHG standards, which have a declining fleet average that increases in stringency with each successive model year.

New York State's estimated GHG emissions benefits resulting from the California ACC standards adopted in the 2012 rulemaking are shown in Table 1.

Table 1. New York Carbon Dioxide Equivalent (CO2e) Emission Benefits
New York Statewide CO2e Emissions (Million Metric Tons/Year)
Calendar Year Adjusted Baseline with Rebound Regulation with Rebound Benefits Percent Reduction
2020 50.0 48.6 1.4 3
2025 49.5 43.3 6.2 12
2035 51.7 37.4 14.3 27
2050 59.0 39.7 19.3 33

While existing federal GHG standards for model years 2017-2025 are less stringent than comparable California standards, applying the reductions nationally would provide a nationwide benefit. The 2015 rulemaking estimated compliance using federal standards would result in approximately 4.5 percent less CO2e emission reductions in 2025 than would otherwise be achieved under California standards adopted in 2012. The reduction in stringency is primarily due to differences in how California and EPA treated incentives for zero emission vehicle (ZEV) and transitional zero emission vehicle (TZEV), as well as incentives for low leak air conditioning systems and disincentives for air conditioning systems with high leak rates. California, New York, and other Section 177 states decided at that time, that the slight decrease in stringency was offset by the additional GHG reductions that would be achieved by nationwide implementation of federal GHG standards.

The rollback and freeze of federal GHG proposed by EPA and NHTSA will drastically reduce any emissions benefit that would be achieved under the DTC. The proposed rollback and freeze will result in approximately 45 percent less CO2e emission reductions in 2025 than would otherwise be achieved under existing California standards adopted in 2012. Such a drastic reduction in effectiveness was never envisioned during the creation and extension of the DTC provision, and clearly demonstrates the need to clarify the existing DTC provision.

4. Costs

Potential Impact on Consumers.

The adopted amendments are not expected to result in additional costs for New York State consumers as California's current model year 2021-2025 standards would remain the same.

Potential Impact on Manufacturers.

If the U.S. EPA weakens federal GHG standards as proposed, vehicle manufacturers, beginning with model year 2021, will be required to demonstrate compliance in California, New York, and other Section 177 states utilizing vehicles certified to California standards. They will be required to demonstrate compliance in remaining states utilizing vehicles certified to federal standards. This is identical to the situation that existed prior to adoption of the DTC provision in 2010. The California standards are duly enacted and enforceable under California's Section 209 waiver which was initially granted for these standards in 2009 before the negotiation and agreement that led to the 2012 adoption of the DTC provision8, and subsequently in New York and other states that have adopted California standards under Section 177. However, this will provide health and environmental benefits to New York.

Potential Impact on Business Competitiveness.

The adopted amendments apply equally to all vehicle manufacturers and affiliated businesses delivering new vehicles for sale in New York. There is currently no automotive manufacturing in New York involving the final assembly of vehicles. Affiliated businesses, such as dealerships and engineering and design facilities, are generally local businesses that compete within the State and are subject to minimal competition from out-of-state businesses. New York dealerships will be able to sell California certified vehicles to states bordering New York, as is currently the case. New York residents will not be able to buy noncompliant vehicles out of state since vehicles must be California certified to be registered in New York. This is currently the case with the existing LEV program and will not change with the adopted revisions. Surrounding states have adopted, or will adopt, identical requirements. The adopted regulation is not expected to impose a competitive disadvantage on New York State businesses.

Potential Impact on Employment.

The adopted amendments are not expected to cause a noticeable change in New York employment. The adopted changes are a clarification of the existing DTC provision.

Potential Impact on Business Creation, Elimination or Expansion.

The adopted regulations are not expected to have any impact on business creation, elimination, or expansion. The adopted changes are a clarification of the existing DTC provision. Failure to adopt this rulemaking, however, will harm New York State businesses that are part of the supply chain for lower emission vehicles, if there are any such businesses.

Potential Costs to Local and State Agencies.

The adopted amendments are not expected to result in any additional costs for local and state agencies. No additional paperwork or staffing requirements are expected.

5. Local government mandates

The adopted amendments do not impose a local government mandate. No additional paperwork or staffing requirements are expected. This is not a mandate on local governments pursuant to Executive Order 17. Local governments have no additional compliance obligations as compared to other subject entities.

6. Paperwork

The adopted revision will not result in any significant paperwork requirements for New York vehicle suppliers, dealers, or government. New York relies on materials submitted to California for certification, while manufacturers must submit to New York annual sales and corporate fleet average reports to demonstrate compliance with the fleet average requirements. While dealers must ensure the vehicles they sell are California certified, the Department believes most manufacturers currently include provisions in their ordering mechanisms to ensure only California certified vehicles are shipped to New York dealers. This has been the case since New York first adopted the California low emission vehicle program in 1992. Implementation of the adopted GHG regulation is not expected to be burdensome in terms of paperwork to vehicle owners/operators.

7. Duplication

There are no relevant state or federal rules or other legal requirements that will duplicate, overlap or conflict with this regulation.

8. Alternatives

New York could choose not to adopt the revisions to California's GHG program and revert to federal motor vehicle standards. The proposed federal rulemaking would freeze GHG standards at model year 2020 levels for model years 2021-2026. These proposed federal standards will be significantly less stringent than the previously adopted California GHG standards.

The option to revert to less stringent, and protective, federal motor vehicle emission standards was considered and ultimately rejected. The proposed federal standards are less protective of human health and the environment and will make it much harder, if not impossible, for New York to meet its GHG reduction goals reflected in Executive Order 166 and to meet and maintain its air quality goals under the National Ambient Air Quality Standards. Executive Order Number 166 calls for reducing New York's GHG emissions 40 percent by 2030 and 80 percent by 2050 from 1990 levels9.

Should the federal government pursue its attempts to roll back the existing GHG standards agreed to in 2012, then it is no longer in the best interests of California, New York, and the other Section 177 states to continue the DTC provision. California's authority to establish its own emission standards pre-dates the very existence of the U.S. EPA. New York's authority to adopt the California standards to address severe and pervasive pollution issues, many stemming from upwind states, is authorized by Section 177 of the Clean Air Act. This is a right that New York embraces and will continue to utilize in fulfilling its obligation to protect the health of its residents and natural resources.

The automotive industry had regulatory certainty under the existing standards. As a result, they can meet the more stringent standards New York and the other Section 177 states will revert to, which represents almost 40 percent of the U.S. market.

9. Federal standards

As mentioned above, the proposed federal standards are significantly less stringent than California's current standards. The reduced stringency, and resulting degradation to emissions reductions, makes the continued implementation of DTC standards unviable in New York State as it impedes the State's ability to attain and maintain its air quality goals. U.S. EPA is shirking its responsibility to protect human health and the environment. If the federal government finalizes its rulemaking, New York will require all new vehicles delivered for sale in New York to meet California's GHG standards commencing with the 2021 model year to safeguard the health of State residents and the environment.

10. Compliance schedule

The adopted GHG regulation revisions will take effect 30 days after filing for 2021 and subsequent model passenger cars, light-duty trucks, and medium-duty passenger vehicles.

__________

1 U.S. Environmental Protection Agency. Nonattainment Areas for Criteria Pollutants (Green Book). September 30, 2017. https://www3.epa.gov/airquality/greenbook/hbstateb.html
2 U.S. Environmental Protection Agency. National Emissions Inventory. https://www.epa.gov/air-emissions-inventories/2014-nei-data
3 New York State Energy Research and Development Authority (NYSERDA). New York State Greenhouse Gas Inventory:1990-2014. December 2016, Revised February 2017. Pg S-3. https://www.nyserda.ny.gov/About/Publications/EA-Reports-and-Studies/Energy-Statistics
4 New York State Department of Health. New York State Asthma Surveillance Summary Report. October 2013. Pg 16. http://www.health.ny.gov/statistics/ny_asthma/
5 New York State Department of Health. New York State Asthma Surveillance Summary Report. October 2013. Pg 12. http://www.health.ny.gov/statistics/ny_asthma/
6 New York State Department of Environmental Conservation. Impacts of Climate Change in New York. http://www.dec.ny.gov/energy/94702.html
7 6 NYCRR Part 218-8.3(d)
8 https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations
9 https://www.governor.ny.gov/news/no-166-redoubling-new-yorks-fight-against-economic-and-environmental-threats-posed-climate


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