Kelley Drye & Warren LLP Files Amici Curiae Brief in Case on Behalf of the Counsel For The Outdoor Power Equipment Institute
May 1, 2009

On May 1, 2009, Kelley Drye Environmental Law partner William M. Guerry filed an Amici Curiae brief on behalf of the Outdoor Power Equipment Institute (OPEI), which represents the manufacturers of lawn, garden and forestry equipment as well as small engines. OPEI’s brief was filed in the U.S. Court of Appeals for the D.C. Circuit in order to protect manufacturers and commercial landscapers that depend on lawn and garden products. The brief supports the American Road & Transportation Builders Association (ARTBA) in its suit against the Environmental Protection Agency (EPA) for its failure to enact “clear, consistent and comprehensive federal pre-emption regulations.” States and localities continue to impose illegal emission standards, use bans and restrictions that adversely impact the construction and commercial landscaping industries, as well as the manufacturers and dealers that supply these industries. It is unfair, inefficient, and irresponsible for EPA to delegate and defer its responsibilities and effectively require small engine manufacturers or the construction and landscaping industries to enforce the Clean Air Act through litigation, rather than through EPA fulfilling its statutory obligations.

As the U.S. Supreme Court has reaffirmed, Congress established a “carefully calibrated regulatory scheme” to protect the compelling federal interest in interstate commerce from being damaged by a potential “patchwork quilt” of different, conflicting, local emission regulations. Congress wanted to ensure national manufacturers could build, and national retailers could sell, uniform products that complied with one set of new emission standards and related “in use” requirements. Consequently, in the federal Clean Air Act, Congress granted U.S. EPA exclusive or pre-emptive jurisdiction over mobile source emissions. Congress also required the EPA to issue comprehensive, consistent and clear pre-emption regulations that prohibited conflicting state and local requirements. When governments want to reduce emissions cost effectively, particularly from in-use equipment that was entirely lawful when it was purchased, governments should achieve those emission reductions through voluntary incentive measures such as tax credits for the purchase of the cleanest products.

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