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– Regulation Could Have Been Crippling To Motorsports – EPA Withdraws Proposed Race Car Emissions Regulation

The Environmental Protection Agency (EPA) announced on Friday, April 15, 2016 that it is withdrawing a proposed regulation that would have effectively prohibited the modification of street cars into race cars.

The EPA said in a statement posted at that its proposed regulation did not represent a “change in the law” and was withdrawing the language because the proposed rule “led to confusion”.

The agency sought to issue a regulation that would have eliminated the long-standing legal exemption that some race car and engine builders had from emission standards under the Clean Air Act.

When asked in an e-mail who or what party specifically did the EPA believe was confused by the now-withdrawn rule, EPA spokeswoman Christie St. Clair replied that the statement posted on the EPA’s web site “stands on its own”.

The EPA’s position that it did not intend to make a “change in the law” stands in contrast to those that opposed the rule. Generally speaking, there is a traditional and long-established legal boundary imposed by Congress – and the Constitution, for that matter – that rules and regulations issued by an administrative agency like the EPA may not contradict, be inconsistent with or go beyond the scope of a law passed by Congress.

Take the following example. A law passed by Congress says the EPA may set emissions from “vehicle type A”, but not “vehicle type B”. Naturally, the EPA may lawfully regulate emissions from “vehicle type A”. If, however, the EPA attempts to regulate emissions from “vehicle type A” and “vehicle type B”, the agency exceeded its authority and the regulations relative to “vehicle type B” are not authorized by Congress and are legally impermissible.

That example, more or less, describes how the EPA sought to prohibit the modification of street cars into race cars.

Congress enacted sweeping amendments to the Clean Air Act in 1990, and those amendments made definitional distinctions between “motor vehicle[s]” and “nonroad” vehicles and engines. Nonroad vehicles and engines enjoy a very important exemption from Clean Air Act rules; namely, if a vehicle was “used solely for competition” (i.e. a race car), the EPA is prohibited from issuing any regulations or rules concerning that vehicle’s emissions.

So, when a driver modifies a “motor vehicle” into a race car to compete at a local track, that car becomes a
“nonroad vehicle” and, consequently, is exempt from the emissions regulations under the Clean Air Act.

That is how Congress intended the Clean Air Act and its regulations to work, and for decades that is precisely how the EPA seemed to view the issue. For instance, in September 2002 the EPA issued an information sheet concerning, among other vehicles, “Competition Vehicles”. In that information sheet the EPA noted correctly that in the 1990 Amendments to the Clean Air Act “Congress directed the EPA to set emission standards for nonroad engines…” recognizing that “. . . Congress excluded nonroad vehicles that are ‘used solely for competition’”. (my emphasis)

Prior to dropping the proposed regulation, the EPA faced a growing chorus of opposition. In a statement issued on February 8, 2016, the Specialty Equipment and Marketing Association (SEMA) CEO Chris Kersting said “[t]his proposed regulation represents overreaching by the agency, runs contrary to the law and defies decades of racing activity where EPA has acknowledged and allowed conversion of vehicles.”

Similarly, in a letter dated March 9, 2016 to EPA Administrator Gina McCarthy, Ohio’s Attorney General Mike DeWine said that the EPA’s attempt to regulate emissions on race cars “would contravene the law” and “conflicts with the expressed intent of Congress”.

And members of Congress did weigh in.

Legislation was introduced in the House on March 7th and the Senate on March 9th to override any attempt by the EPA to outlaw by way of a regulation street-to-race vehicle conversions. Those bills would amend the Clean Air Act by adding language that would make clear that anti-tampering penalties associated with automobile emission systems do not apply to motor vehicles converted to race cars.

The Senate bill (S. 2659) has eight Senators as cosponsors and has been referred to Committee on the Environment and Public Works. The House bill (H.R. 4715) has 57 Congressmen as cosponsors and was referred to the House Committee on Energy and Commerce.

The House committee held a hearing on March 15th where Congressman Barry Loudermilk (R-GA) asked SEMA CEO Chris Kersting how his organization found out about the EPA’s proposed regulation. Kersting testified that the regulation was not initially noticed by SEMA or any other Washington D.C.-based trade organizations that monitor regulatory and legislative issues because of the way it was “tucked in to” page 584 of a 629-page document of unrelated regulatory material. Kerstling underscored that “it did not bear a heading … in the table of contents that would indicate that race cars were being regulated. There was no easy way to find it. Thankfully we found it.”

In an April 12, 2016 letter to the EPA Administrator, Congressmen Fred Upton (R-MI), Ed Whitfield (R-KY) and Richard Hudson (R-NC) scolded the agency for attempting bury a proposed rule. The Congressmen requested that the EPA respond in writing to eight questions concerning the agency’s rational and justification for proposing the race car emission rules.

When asked if the EPA is still required to respond to the legislators’ letter given that the agency has since withdrawn the regulation, Tom Wilbur, a spokesman for Congressman Fred Upton, said “yes”.

Wiernusz is a graduate of Roger Williams University School of Law, a businessman and an avid race fan.