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Adopted 6 NYCRR Parts 218 and 200 Assessment of Public Comments

Comments Received from January 9, 2019 through 5:00 P.M., March 18, 2019

General Comments

Comment 1: The City strongly supports DEC's proposed amendments, which conform New York State's emission standards to California's emission standards following recent revisions to the California standards. Commenter 2.

Comment 2: Tesla Supports New York State's amendments to incorporate fully California's latest GHG regulatory "deemed to comply" revisions. Commenter 3.

Comment 3: Tesla supports a continued regulatory environment in New York State that will facilitate the state's ability to attain its goal of deploying 800,000 zero emission vehicles ("ZEV") by 2025. Commenter 3.

Response to Comments 1-3: The Department thanks you for your support.

EPA Waiver/Section 177

Comment 4: New York cannot adopt these amendments at this time, because the regulations have not yet received a waiver from the United States Environmental Protection Agency (EPA). Commenter 1.

Comment 5: Under Section 177 of the Clean Air Act, New York may adopt a California motor vehicle emission standard (or an amendment to that standard) if "such standards are identical to the California standards for which a waiver has been granted for such model year." While California's 2018 "deemed-to-comply" rulemaking has been finalized by the state, the EPA has not granted a waiver for those amendments. Past EPA waiver decisions have made it clear that where an amendment to a California regulation increases the underlying stringency of the California program - as the revocation of the deemed to comply provision does - California must obtain a new waiver. In light of the foregoing, any action by the state to adopt California requirements at this time would violate Section 177 of the Clean Air Act. Commenter 1.

Comment 6: Section 177 of the Clean Air Act requires the NYSDEC to defer taking action on the deemed-to-comply provision until after the EPA approves California's request for waiver to implement these amended regulations. Commenter 1.

Response to Comments 4-6: The Department strongly disagrees with these comments, and notes that they are factually and legally inaccurate. California's December 12, 2018 clarification of the deemed to comply provision is within the scope of waivers previously granted by EPA, which remain in effect. In 2011, EPA determined California's deemed to comply provision was within the scope of the waiver for the LEV III program for model years 2012-2016. (76 Fed. Reg. 34,693 (June 14, 2011).) California requested, and EPA granted, a waiver for the LEV III program in 2012 (published in 2013) for subsequent model years. A deemed to comply provision was also included in this waiver request, and EPA determined the program was entitled to a waiver even without this provision. (See 78 Fed. Reg. 2,112, 2,138 (Jan. 9, 2013). Consequently, there is no basis to assert that these amendments are outside the scope of the existing waiver.

The Commenter is technically incorrect in stating that the clarification "increases the underlying stringency" of the California program. The California greenhouse gas standards are duly adopted, enforceable, and predate the existing federal standards. The deemed to comply provision was adopted to harmonize California and federal greenhouse gas standards to allow the creation of a single national program. Deemed to comply allowed vehicle manufacturers to demonstrate compliance with less stringent federal standards in lieu of the existing California standards. In return, vehicle manufacturers agreed to make vehicles certified to these standards available in all fifty states, resulting in greater greenhouse gas emission reductions nationwide.

The proposed federal standards are drastically less stringent than even the existing federal standards and are not even remotely comparable to the stringency of existing California standards. The proposed federal standards represent a significant material change and necessitate a clarification of the deemed to comply provision to maintain the stringency of the existing regulations. (See California Air Resources Board, Reso. 12-35 (Nov. 15, 2012), p. 5, available at: If the federal government completes its proposed roll back and freeze of existing federal greenhouse gas standards, those standards will no longer be deemed to comply with existing California greenhouse gas standards. Therefore, vehicle manufacturers will be required to comply with the California greenhouse gas standards in California, New York, and other Section 177 states.

In addition, this very issue has been previously litigated and resolved in federal court. In MVMA v DEC, 17 F.3d 521 (1994), the United States Court of Appeals for the Second Circuit clearly and unequivocally held that New York may adopt California's program, prior to a federal waiver. Accordingly, for the sake of argument, if California is required to seek a new waiver for its clarification, New York's adoption would remain valid.

Comment 7: Programs like these are bolstered by New York's ability to adopt California standards under Section 177 of the Clean Air Act, and the effectiveness and viability of those programs depends on the current standards remaining in effect. The recent federal roll back seeks to undermine States' abilities to set these standards and the City supports New York State's effort through the current rulemaking to ensure the more stringent standards remain. Commenter 2

Comment 8: Through amending its vehicle emission regulations, New York State is acting in a manner that is consistent with the cooperative federalism structure of the Clean Air Act and ensures the effectiveness of Clean Air Act regulations moving forward. Section 209 of the Clean Air Act gives California the ability to adopt its own, more stringent emission control standards for motor vehicles and section 177 gives New York State the authority to adopt these standards. The current rulemaking takes an important and necessary step towards preserving that authority which serves as an essential part of New York City's plans to protect public health and the environment. Commenter 2.

Response to Comments 7-8: The Department agrees with these comments.

Federal Rulemaking/National Program

Comment 9: With a pending final rulemaking from the federal government on light-duty vehicle fuel economy and GHG emission standards, it is still our hope that the national program ultimately sets meaningful and continued increases in vehicle efficiency standards, while also meeting the needs of America's drivers, thereby negating the need for separate state regulations. Commenter 1.

Comment 10: New York should defer its adoption of the California deemed-to-comply amendments until after the federal rulemaking is complete, so we can determine whether the national program provides meaningful annual increases in fuel economy and greater reductions in GHG emissions across the nation than via individual state standards. Commenter 1

Response to Comments 9-10: The Department disagrees with these comments. This rulemaking is merely a clarification of the deemed to comply provision. The existing California greenhouse gas standards have not changed. As the Commenter clearly states, the federal rulemaking is merely "pending" and therefore not final. The Department will review changes to the federal standards should they be completed and will consider the appropriate course of action at that time.

Moreover, the commenter's assertion that a national program does not currently exist is incorrect and misleading. The existing greenhouse gas standards are a national program. This is the result of California's deemed to comply provision and the agreement among the federal government, California, and vehicle manufacturers (including members of Commenter's organization) to harmonize federal greenhouse gas standards with existing California standards for model years 2017-2025. As discussed previously, California, New York, and the other Section 177 states agreed to less stringent federal greenhouse gas standards based on vehicle manufacturers agreeing to make vehicles certified to those standards available in all fifty states. Vehicle manufacturers agreed to the existing national program, in part, as a prerequisite to obtaining federal bailout funds to stave off bankruptcy of several large manufacturers, which would have had a catastrophic ripple effect throughout the automotive industry and greater nationwide economy.

The statements regarding "separate state standards" and "individual state standards" are similarly misleading. As stated above, the current greenhouse gas program is a national greenhouse gas program. Should the federal government complete its rollback proposal and the resulting federal standards are no longer deemed to comply with California standards, the country will then be left with two standards, which are in fact envisioned and permitted by the Clean Air Act. "Congress consciously chose to permit California to blaze its own trail with a minimum of federal oversight." Ford Motor Co v EPA, 606 F.2d 1293 (DC Circuit 1979). In short, there will be a more stringent, technologically rigorous, yet achievable and cost-effective California standard and a weaker, less protective federal standard. This was the situation prior to the 2012 deemed to comply agreement. Contrary to the implication of these comments, there will not be a "patchwork" of individual state standards as has been frequently-- and erroneously -- asserted by the automotive industry and other critics of the states' rights to protect public health and welfare.

Finally, the Department disagrees with Commenter's assertion that the so-called "national program" resulting from the proposed federal greenhouse gas revisions will lead to "meaningful" increases in fuel economy and greater reductions in greenhouse gas emissions. Based on the federal government's limited, and deeply flawed, data and analysis made publicly available to date, the proposed revisions to federal standards will clearly result in drastically increased fuel consumption and vehicle emissions as compared to existing greenhouse gas and corporate average fuel economy standards. "Meaningful" emission reductions have been achieved by the automotive industry under the existing standards. In fact, the automotive industry has achieved record increases in fuel economy at the same time as achieving reductions in greenhouse gases in eleven of the past thirteen years and enjoyed record sales in that time. It is projected that 2018 model year vehicles will set new records for both increased fuel economy and greenhouse gas reductions1. Accordingly, there is no factual basis, or need, for the proposed rollback of federal standards given the demonstrated effectiveness of current standards.

Comment 11: The proposed revisions will ensure that appropriate and necessary regulations remain in place and effective in the face of EPA's current efforts to roll back existing passenger vehicle and light truck greenhouse gas emission limitations and fuel efficiency standards for vehicle (sic) for model years 2021-2026. Commenter 2.

Comment 12: Amending New York State regulations to appropriately incorporate California's updated emission standards will aid NYC's efforts to meet its emission reduction goals by preventing vehicle manufacturers from complying with less stringent federal standards in New York instead of the more stringent California standards. California's more stringent standards were adopted by New York State in 1990 and play an integral role in protecting public health and the environment. New York's adoption of California standards will become crucial should the federal government be successful in rolling back the 2021-2026 emission and efficiency standards for passenger cars and light trucks. Commenter 2.

Comment 13: Tesla disagrees with the recent EPA "Reconsideration of the Mid-Term Evaluation of Light-Duty Vehicle Greenhouse Gas Emissions Standards for Model Years (MY) 2021-2025" (Final April 2018 MTE) finding that the MY 2022-25 EPA GHG Light-Duty Vehicle Standards may be too stringent." Further, Tesla believes the current MY 2017-2025 EPA Greenhouse Gas (GHG) Emissions and NHTSA Corporate Average Fuel Economy (CAFE) light-duty vehicle standards (herein referred to as the LDV Standards) are a bare minimum, can easily be met with only small increases in the efficiency of fossil fuel engines, and should be strengthened. Commenter 3.

Comment 14: As California clarified through its final decision on September 28, 2018, "Deemed to Comply" only applies to the existing EPA GHG LDV Standards and does not incorporate any subsequent diminution in the stringency of these existing LDV standards that may occur as a result of the Final April 2018 MTE determination and the subsequent EPA "Safer Affordable Fuel Efficient (SAFE) Vehicles Proposed Rule for Model Years 2021-2026 proposal." Commenter 3.

Response to Comments 11-14: The Department agrees with these comments.

List of Commenters

  1. Julia M. Rege, Senior Director, Environment & Energy, Association of Global Automakers
  2. Robert L. Martin, Environmental Law Division, New York City Law Department
  3. Joseph Mendelson, Senior Counsel, Policy and Business Development, Tesla


1 United States Environmental Protection Agency. The 2018 EPA Automotive Trends Report: Greenhouse Gas Emissions, Fuel Economy, and Technology since 1975. EPA-420-R-19-002. March 2019. Pg 5.

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