(1). The Federal Clean Air Act

(2). The Federal Fuel Economy Program:

587. Comment: Despite the fact that California is addressing an air pollution problem under its Clean Air Act authority, it is being argued that the state is pre-empted under the Energy Policy and Conservation Act (EPCA), the federal law under which CAFÉ standards are set. The argument depends on the false premise that California is regulating fuel economy, not air pollution. The subject is air pollution, not fuel economy, and thus California is operating under the green light of the Clean Air Act. As a result, there simply is no red light coming from EPCA.

Moreover, from its beginning, the federal fuel economy law has expressly dealt with the relationship between air pollution standards and fuel economy.

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  • In early instances where air pollution controls made meeting fuel economy standards more difficult, the fuel economy law gives priority to the pollution safeguards – not the other way around. In these cases, the law said that – if anything – the fuel economy standard is the one that should be relaxed, not the air pollution standard.
  
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  • Today, when it sets fuel economy standards, the National Highway Transportation Safety Administration is required by law to take federal and California air pollution standards into account when determining new fuel economy targets.
  
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  • More recently – and certainly in the case of the standards before you now – most modern air pollution control technology lowers fuel consumption.
  
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  • If the federal fuel economy law did not stand in the way of California’s air pollution standards when they made better fuel economy harder to achieve, then certainly it does not stand in the way when California’s air pollution standards make better fuel economy easier to achieve. David Doniger, NRDC
  

Agency Response: The ARB agrees.

588. Comment: The proposed CO2 emission standards are expressly and impliedly preempted by the federal fuel economy program. Alliance (Appendix H).

The proposal is in fact a fuel economy rule and as such is clearly preempted by federal law. The federal preemption issue and state fuel economy standards, which are prohibited. Since virtually all greenhouse gas emissions from vehicles are tailpipe carbon dioxide emissions, regulating vehicle carbon dioxide emissions is tantamount to regulating fuel economy. Fred Webber (Alliance), GM.

Regulation of fuel economy is and should be a federal issue. California Motor Car Dealers Association.

No state, including California, has the authority to regulate CO2 emissions or fuel economy. Toyota Technical Center, USA.

Federal law prohibits states from adopting or enforcing a law or regulation related to fuel economy. Restrictions on CO2 emissions are fuel economy measures. DaimlerChrysler.

The greenhouse gas emissions report and AB 1493 has no impact on greenhouse gases or global warming, but only on vehicle efficiency and gas mileage. The courts have defined vehicle mileage efficiency as being a Federal area, off limits to states. This effort should be abandoned. (John Dodds)

Agency Response: As an initial matter, several commenters referred directly or indirectly to the proposed regulations as setting fuel economy standards or levels or implied as much, or otherwise inserted the term “fuel economy” at various points in their comments. In the remainder of the Agency Responses in this FSOR, ARB may not have separately responded to each such reference or implication, but it does respond here with its responses to Comments 589 through 593 below. As to express and implied preemption in particular, see Agency Response to Comments 590 and 591, respectively, which also respond to the general allegation of preemption.

If a reviewing court were to find part of this action expressly or impliedly preempted, that ruling would not apply after model year 2007 to LDTs 3751-8500 lbs or to MPVs, as no EPCA/CAFÉ standard is in effect for vehicles of these types and model years. Thus in furtherance of the severability provision, the PC/LDT1 standards could be severed from the remainder of this regulatory action. First, the text for this weight group and vehicle type can be mechanically separated from both the regulations and the incorporated test procedures. Second, the PC/LDT1 is not necessary for the LDT2/MDV provisions to function. Because the technological feasibility of each (PC/LDT1 and LDT2/MDV) standard was separately set to the highest weight manufacturer, and because trading of credits from PC/LDT1 to LDT2/MDV was not assumed needed (see ISOR p. 113-114, Figures 6-1 and 6-2), the rulemaking analysis for the LDT2/MPV standard can stand on its own. Finally, given the substantial global warming impacts identified in the rulemaking, and Governor Schwarzenegger's recent Executive Order S-3-05 setting aggressive greenhouse gas reduction targets, the Board most certainly would want the substantial greenhouse gas reductions that would be achieved from severance of the PC/LDT1 standard and implementation of the LDT2/MDV standard.

589. Comment: The Executive Officer must acknowledge that NHTSA administers a comprehensive federal fuel economy program, including CO2 emission standards for motor vehicles. Miles/gallon and CO2 grams/mile are different metrics for measuring fuel consumption. The public will not be fully informed of the import of the proposed CO2 standards unless it is provided accurate information in the miles/gallon metric. Alliance (Appendix H).

Comment: Federal law prohibits states from adopting separate fuel economy standards. This preemption language was put into place because of the impact that fuel economy standards would have on the national economy. The U.S. Congress reserved the issue of regulating vehicle fuel economy to the federal government to balance all sectors of the economy and to avoid a patchwork quilt of state regulations which hurt businesses and, perhaps more importantly, consumers.

It is a simple fact. This regulation is federally preempted. And I would like to quote, sir, from the California Energy Commission and California Air Resources Board Joint Agency Report back in August of 2003. I'll just quote: "Requiring vehicle manufacturers to improve fuel economy, however, is the sole domain of the federal government. The challenge for California policy makers is to work effectively with the federal government to improve new vehicle fuel economy."

And I would say to you, I think NHTSA's doing a pretty good job. And if you're not happy with the way NHTSA's progressing --and they're already addressing light truck fuel economy standards and they're about to address automobile fuel economy standards -­again, go to Washington. You've got a great presence there. You've got a strong congressional delegation. And slug it out with them. But federal law to us is very clear here, the position of the previous speaker notwithstanding. (Fred Webber, The Auto Alliance)

Comment: The past decisions of Congress on preemption should not be treated simply as a legal issue. These were not arbitrary decisions. Rather, they properly reflected the differences between criteria air pollutants and fuel economy and, indirectly, carbon dioxide emissions, greenhouse gas emissions.

With the Clean Air Act Congress recognized that California had special air quality concerns, differing significantly from the other states, and provided California the unique ability to set its own vehicle emission standards.

Congress also correctly recognized that vehicle manufacturing and marketing are necessarily conducted on a national level and that varying state-to-state regulation of fundamental vehicle design elements would be extremely harmful to the industry and cost to the consumers.

Accordingly the U.S. Department of Transportation was established as the sole agency authorized to set fuel economy standards, expressly preempting states from setting standards related to fuel economy. And that's a quote from the statute. (John Cabaniss, Director of Environment Energy, Association of International Automobile Manufacturers)

Comment: At the time of the passage of the Federal motor vehicle provisions of the Clean Air Act, California already had its motor vehicle emissions standards program in place. Conversely, the federal government has been regulating carbon dioxide emissions from vehicles through the Corporate Average Fuel Economy (CAFÉ) program, pursuant to the Energy Policy and Conservation Act adopted nearly thirty years ago. (Statement of John Cabaniss, 9/23,04).

Agency Response: While the ARB and the Executive Officer acknowledge that NHTSA administers a federal fuel economy program, they do not acknowledge that NHTSA’s program includes a CO2 emission standard for motor vehicles. Neither NHTSA nor EPA (see Agency Response to Comment 576) have set emission standards for CO2 or any other greenhouse gas. See also Agency Response to Comment 562. Rather, NHTSA’s fuel economy program regulates fuel economy by implementing a minimum corporate average fuel economy, or “CAFÉ” standard. As the commenter points out, this is a miles per gallon or “mpg” standard. The focus of EPCA and CAFÉ, of course, was and is to increase new motor vehicles fleet average mpg in order to promote energy independence.

The commenter appears to infer that because NHTSA uses CO2 grams/mile results from EPA’s exhaust emission standard test procedures to determine manufacturer compliance with CAFÉ standards, then NHTSA has set a CO2 standard. Yet nowhere does the commenter cite to any statute, or to any draft, proposed, or final federal regulation, that indicates that NHTSA has exercised authority over greenhouse gases such as CO2, much less claimed such authority. And as the commenter points out, EPA’s CO2 test results serve more than one purpose. (“For labeling purposes, EPA can (and does) calculate fuel economy differently than it does for CAFE purposes.” Macomber Declaration, Appendix H, Exhibit 1, p. 4.)

Finally, because the Board and Executive Officer were targeting not miles per gallon but rather a total reduction in greenhouse gases (in addition to CO2) from new motor vehicles, the Board has no reason to know, does not know, and could not reliably estimate, the miles per gallon that a purchaser of vehicles subject to this regulation would achieve.

590. Comment: The proposed CO2 standards are expressly preempted under EPCA because they are “related to” fuel economy standards in that they have a prohibited connection with or reference to such standards. Alliance (Appendix H), GM.

Agency Response: The commenter attempts to expand a recent U.S. Supreme Court case finding preemption based on analysis of the term “standard” (Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist. (2004) 124 S.Ct. 1756) into a general principle that federal statutes preempting state requirements “related to” them must be broadly read. No such principal exists generally, and specifically not in the area of state environmental regulation.

As the commenter acknowledges, nowhere do the regulations reference corporate average fuel economy, fuel economy, or miles per gallon. The most the commenters can point to is what they characterize as a “connection with” a federal test procedure. But contrary to the commenter’s assertion, neither the regulations nor their incorporated test procedures directly reference or connect with the fuel economy regulations (40 CFR Part 600) they cite. Rather, the regulations and test procedures reference 40 CFR Part 86, as modified for California, as the method to measure CO2 and the other greenhouse gases CH4 and N20 (Test Procedures, Part II.A. 100.5.2.1, p. II-12), just as California currently measures other vehicular emissions for compliance with the LEV program. As discussed in the ISOR (pp. 102-103), the highway driving schedule, which applies to more than just greenhouse gas emissions, will be used in certifying and testing vehicles to ensure fleet greenhouse gas emission reductions occur under real world driving conditions.

The above-described scheme of the regulations and test procedures to measure CO2 and other greenhouse gases thus hardly rises to the level of a prohibited reference to or connection with the federal issues of concern to the commenter. State environmental regulations such as these typically enter the preemption analysis with a strong presumption against preemption. Exxon Mobile Corp. v. EPA (9th Cir. 2000) 217 F.3d. And the Supreme Court has repeatedly cautioned against reading “related to” at face value. Egelhoff v. Egelhoff (2001) 532 U.S. 141 at 146-147, and at 152-153 (Scalia Concurring). See also California Div. of Labor Standards Enforcement v. Dillingham (U.S. Cal., 1997), 519 U.S. 316, *335-336 (Scalia concurring) (in the ERISA context,

“…applying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.”) Further, it is worth noting that the current LEV II program measures oxides of nitrogen with an explicit reference (13 CCR §1961(a)(6)) to the supposedly “forbidden” 40 CFR Part 600, yet California has been granted a waiver of federal preemption for such measurement. 68 FR 19811 (April 22, 2003). See also 13 CCR section 1960.1(f)(2) note 3, (g)(1) note 5, and (h)(1) note 5. See also agency response to comment 188.

The commenters further dwell on their statement that the federal fuel economy program also uses emission test results that in part measure CO2--(without noting that the federal fuel economy program does not use the results from testing for other greenhouse gas emissions as the subject ARB regulations do)--by converting those results to miles/gallon to determine compliance with NHTSA’s fuel economy standards. This is true, but it is the federal government that is doing so, for a different purpose. Regardless of the commenter’s unnecessary resort to AB 1493 legislative history, the administrative record upon which the Board relied in adopting these regulations and test procedures clearly demonstrates that their purpose and intent is to reduce motor vehicles’ greenhouse gas emissions. See for example the extensive ISOR description of the climate change problem and need for reductions, Chapters 2 and 3, and summary of regulations, Chapter 4. See also Resolution at pp. 1 and 9.

Finally, the commenter poses five questions in an apparent attempt to summarize their comment. With regard to (1), the accuracy of a former Executive Officer’s statements in previous litigation regarding different regulatory text is not a determination that must be made for this rulemaking. With regard to (2), “increasing fuel economy” may be how the commenter chooses to characterize its potential efforts to meet the greenhouse gas emission reduction standards, and it may be true that that is how they perceive their alternatives. With regard to (3), the commenter has chosen to use the term “unrelated” in an apparent attempt to trap ARB into admitting that if it identifies such methods, then the others must be “related to” improved fuel economy. ARB does not so admit. Having said that, the ARB does anticipate that at least some manufacturers will employ greenhouse gas emission reduction technologies that we believe even the commenter would concede are “unrelated” to improved fuel economy. See Response to Comments 171. With regard to (4), see earlier paragraphs in this response. Finally, with regard to (5), ARB’s duty in this rulemaking is to adopt and enforce regulations until and unless such regulations are held to be preempted; ARB has no duty to explore and speculate as to the scope of express preemption generally.

It is also worth noting that statutes allowing regulation of motor vehicle emissions though they might impact fuel economy is not novel or limited to the 209(b) context. Elsewhere in the Clean Air Act Congress provided examples of emission reduction measures that would no doubt improve fuel economy. See e.g. the transportation control measures at Clean Air Act 108(f)(1)(A)(v) (traffic flow improvements) and (xi) (extended idling). Whether enacted to meet these Clean Air Act requirements or for other purposes (see Title 13, California Code of Regulations, Sections 2480 and 2485 to reduce airborne toxic emissions), numerous state and local measures notably affect fuel use and resultant fuel economy, though that is not their purpose and intent. As many of these measures have been on the books for decades, this cannot be the type of “connection with” fuel economy that would render such measures, as here, preempted.

591. Comment: The proposed CO2 emissions standards are impliedly preempted by the federal fuel economy program because they frustrate federal objectives and intrude upon NHTSA’s field of regulation. Alliance (Appendix H).

Comment: The proposed California standards are considerably higher than federal fuel economy levels, the way the standards are arrived at are different, and the fleet structure is different from CAFÉ. DaimlerChrysler (Attachment 10).

Agency Response: The first commenter’s factual statements elsewhere fundamentally undermine their premise regarding implied preemption. See Alliance (Appendix H), pp. 44-45. There the commenter indicates that manufacturers will react to these greenhouse gas regulations by producing for sale outside California vehicles with higher greenhouse gas emission vehicles (which the commenter terms “more fuel-intensive vehicles”). They argue that there will thus be no net impact on greenhouse gas emissions globally, and following their own logic, no net change in fleet average fuel economy. Though ARB disagrees with the argument, in the commenter’s own words there is no implied preemption by frustration of, intrusion into, or conflict with, the federal program.

Further, the ARB disagrees with several of the commenters’ factual assertions. First, the Board (and not the Executive Officer) established fleet average greenhouse gas emission standards, not CO2 standards. Second, as the commenters’ own charts show, the Board did not establish fleet greenhouse gas emission standards for the federal categories NHTSA regulates. Third, as stated in Agency Response to Comment 593, in proposing the greenhouse gas standards, the Executive Officer did not consider the CO2/Fuel Economy Conversion that the Commenter entered into the record, and the referenced conversion formula is not incorporated in the adopted regulations or test procedures. Therefore the Board did not evaluate, and takes no position on, whether “the federal vehicle categories and respective fuel economy standards” that the commenter identifies – and for which it generates its own fuel economy conversion numbers – differ from the two categories of vehicles California identifies for separate fleet average greenhouse gas emission standards under 13 CCR Section 1961.1(a)(1)(A). However, if there exists such a difference, it would hardly be remarkable, given the different purposes and considerations inherent in implementing the respective state and federal regulatory schemes.

Even if ARB were to ignore the commenter’s conflicting statement(s) and the above factual disagreements, ARB disagrees with each of the commenter’s five bases for finding implied preemption. First, while NHTSA does regulate fuel economy, ARB is setting a fleet average greenhouse gas emission standard, not a fuel economy standard. In addition, the commenter conveniently and entirely ignores the balancing factor most at issue here that NHTSA historically has accepted and must continue to accept as a given; motor vehicle emission standards. 49 U.S.C. §32902(f). Thus greenhouse gas emission standards, like other motor vehicle emission standards, do not even fall within the occupied field. Second, regulation of greenhouse gas emissions from motor vehicles above 8500 GVWR does not conflict with NHTSA’s CAFÉ standard for such vehicles for several reasons: A) there is no citation to where NHTSA found that only some of said vehicles could be subject to CAFÉ; B) again, California has here set a greenhouse gas emission standard, not a CAFÉ standard; and C) CAFÉ itself does indeed reserve – in the form of acknowledgment in 49 U.S.C. §32902(f) – regulatory authority for California and federal motor vehicle emission standards. Third, even if the manufacturers unnecessarily (see e.g. Agency Response to Comment 254) choose to create size, weight, power, or other differences between California and non-California vehicles, and further choose to attribute such differences to these greenhouse gas regulations, the resulting vehicles with differing emissions characteristics are permissible – indeed encouraged – under Clean Air Act Sections 177 and 209(b), so long as no “third vehicle” is created. (The commenter does not and could not assert that California’s regulations here create a potential third vehicle problem.) Moreover, the history of the interaction between the Clean Air Act and EPCA/CAFÉ shows clear Congressional acceptance of potentially different fuel economy levels from California versus non-California vehicles. And even if all other states opted to adopt these California greenhouse gas regulations, NHTSA’s role – to set minimum average fuel economy standards for manufacturers’ fleets by balancing emission standards among many factors – would remain intact. Fourth, California’s greenhouse gas regulations do not conflict with NHTSA’s consideration of the safety consequences of its CAFÉ standards; we presume NHTSA will continue considering safety among the factors, including emission standards, as required by EPCA. And again, to meet state law requirements, the purpose, intent, and practical effect of these regulations is to reduce fleet greenhouse gas emissions without affecting weight; a fundamental concern in developing the regulations was to achieve a “weight-neutral” result that leaves consumer choice intact. See ISOR pp. 57 and Agency Response to Comment 167. Fifth, California’s greenhouse gas regulations do not conflict with NHTSA’s consideration of the consequences of its CAFÉ standards on the domestic automobile manufacturing industry; we presume NHTSA will continue considering this among other factors, including emission standards, as required by EPCA. Further, though the Board was not engaged in the weighing of fuel economy factors as NHTSA would be, the greenhouse gas emission standard is set to ensure that the manufacturer that may have the most difficulty meeting the standard (which here happens to be GM, a domestic manufacturer) can do so. See ISOR p. 105 and Agency Response to Comment 315. Again (see Agency Response to Comment 586), the backdrop to all of the commenter’s implied preemption arguments is a strong presumption against finding repeal of state or local environmental regulations, and the courts’ duty to give effect to statutes that are potentially overlapping yet capable of co­existence absent a clearly expressed congressional intention to the contrary. Morton v. Mancari, 417 U.S. 535, 551 (1974). See also Agency Response to Comment 590 and

D.C. Circuit Slip Opinion No. 03-1361 (July 15, 2005), Tatel dissent at pp. 21-22.

Finally, we note that in considering the effect of other government standards on fuel economy, NHTSA stated the following regarding the effect of California’s LEV II emission standards: “The agency notes that compliance with increased emission requirements is most often achieved through more sophisticated combustion management. The improvements and refinement in engine controls to achieve this end generally improve fuel efficiency and have a positive impact on fuel economy.” 68 Fed.Reg. 16868, 16896 (April 7, 2003). The ARB agrees, and believes the quote should be read to cover compliance with greenhouse gas emission standards, such as those proposed for adoption here, which in part rely on projected improvements and refinements in engine controls to meet them.

592. Comment: The Executive Officer cannot avoid preemption by avoiding use of “fuel economy” in all formal regulatory documents and instead insisting that only “emissions” are being regulated. Alliance (Appendix H).

Agency Response: The commenter makes much of the lack of “fuel economy” and related terms in the “formal regulatory documents” for this rulemaking. As a preliminary matter, the Board is not avoiding use of those terms, as this Final Statement of Reasons is now part of the rulemaking documentation. Use of those terms by commenters, including this commenter, is also part of the rulemaking record. It is true, however, that the lack of such terms in the Board-promulgated documents reflects the true purpose of the regulations; to control greenhouse gas emissions from the California fleet. See ISOR pp. 3-39 (describing climate change pollutants, their impact in California, and California’s historical responses). Also, there was no “masking” here of one benefit of reducing such emissions; a reduction in operating costs, due primarily to reduced fuel purchases.

The commenter’s reliance on Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist. (2004) 124 S.Ct. 1756) is again misplaced. While in that case the Court determined that the “purchase” requirement at issue was as much a “standard” as a sales restriction, that case concerned a political subdivision’s attempt to enforce a “standard” prohibited by Clean Air Act section 209(a). Here one could argue that the Board is adopting an emission standard that would be subject to preemption under section 209(a), but this completely ignores the fact that U.S. EPA is to waive that preemption under 209(b) under a test deferential to California. More importantly, the cited case concerns one statutory scheme – the Clean Air Act – not the court’s duty to give effect to both Clean Air Act §209(b) and EPCA statutes that are potentially overlapping yet capable of co-existence absent a clearly expressed congressional intention to the contrary. Morton v. Mancari, 417 U.S. 535, 551 (1974).

The commenter then poses several possible “legal defenses” ARB might use, and their problems. While the Board believes such defenses are unnecessary, we respond here for the purposes of completeness and for the commenter’s benefit. First, characterization of the Clean Air Act section 209(b) as a “savings” clause in unnecessary. When Congress passed EPCA in 1975 and amended it in 1977, it specifically acknowledged California’s (and U.S. EPA’s) ability to continue setting motor vehicle emission standards that Congress knew would have an impact, positive or negative, on fuel economy. See 49

U.S.C. 32902(f), H.R. Rep. No. 94-340 at 86-87, 89-91, and H.R. Rep. No. 95-294 at 244­

51. If regulating emissions under the Clean Air Act could be considered a “direct conflict” with EPCA as the commenter asserts, it’s a conflict that Congress knew about and approved. Second, the commenter cites no authority, beyond grasping at factually distinguishable cases (see Brief for the Petitioners in Consolidated Cases, Commonwealth of Massachusetts, et. al. v. U.S. EPA, nos. 03-1361 (D.C. Circuit), pp. 36-38) for the proposition that the emission standards that NHTSA must consider in setting fuel economy standards means only “traditional” emission control measures; we do not read such language into the statute. The commenter’s third point about California’s ability to regulate under Clean Air Act section 209(b) is addressed in Agency Response to Comments 580 through 586. Finally, the Board agrees that to meet the adopted greenhouse gas emission standards, manufacturers will need to reduce their CO2 emissions, in combination with potential reductions in other greenhouse gases. However, for all the reasons stated in this and the previous to responses, we do not believe that that CO2 reduction is either expressly or impliedly preempted.

593. Comment: The proposed “CO2 emission standards” are legally indistinguishable from the preempted “CO2 reduction method” in Central Valley Chrysler-Plymouth v. CARB

(E.D. Cal. (Fresno), June 11, 2002). No reasonable reader of this decision, the U.S. brief in support of affirming it, or EPCA, would conclude that California can promulgate CO2 emission standards for new motor vehicles. Alliance (Appendix H).

Agency Response: The regulations at issue here are distinguishable because they set greenhouse gas emission standards, not “CO2 emission standards” or a “CO2 reduction method” as the commenter asserts. In addition, the greenhouse gas emission standard here does not refer to and directly depend on the vehicle’s EPA fuel economy rating, as argued in the U.S. brief. (See Agency Response to Comment 590.) Further, it is not clear from the Central Valley decision what role the CO2 reduction method played in comparison to the other provisions there at issue.

Even if the two regulatory provisions were not distinguishable, no less a “reasonable reader” than counsel for the federal U.S. EPA did at one point conclude that greenhouse gas emissions such as CO2 were potentially subject to EPA regulation under the Act. Testimony of Gary S. Guzy, EPA, General Counsel, before a Joint House Subcomm. Hearing (Oct. 6, 1999) (reiterating predecessor Jonathan Cannon’s conclusions.) See also D.C. Circuit Slip Opinion 03-1361, July 15, 2005 Tatel dissent. What EPA can regulate it can also waive preemption for California to regulate. On appeal to the 9th Circuit, the Board respectfully disagreed with the District Court in Central Valley and the

U.S. Department of Justice, and will do so here as necessary. Several other reasonable readers, including many states and non-governmental organizations, will likely join us, as many did in the Central Valley appeal.

Finally, the cited preliminary injunction decision does not create legally binding precedent for any purpose, including this rulemaking. The cited case was settled and voluntarily dismissed, and no judgment was entered. Thus, the intermediate rulings in that case do not bind ARB here and will not bind a reviewing court on this issue. Pyramid Lake Paiute Tribe v. Hodel, 882 F.2d 346, 369 n.5 (9th Cir. 1989); In re Duncan, 713 F.2d 538, 541, 542, 544 (9th Cir. 1983). Even if the cited ruling had been published, it would not be binding authority. See Hart v. Massanari, 266 F.3d 1155, 1174 (9th Cir. 2001) (explaining that trial court decisions, unlike appellate court decisions, are not "binding authority"); Cactus Corner, LLC v. U.S. Department of Agriculture, 346 F.Supp.2d 1075, 1106 (E.D. Cal. 2004) ("No trial court decision is binding precedent."). And "an unpublished decision is usually not suitable as a source of persuasive authority." Wilson v. Union Security Life Ins. Co., 250 F.Supp.2d 1260, 1262 n.3 (D. Idaho 2003) (citing Hart, 266 F.3d at 1278). Again, the ARB believes that the factual situations are distinguishable here anyway. And in any event, the potential for litigation over this question of federal law does not preclude or excuse ARB from fulfilling its statutory rulemaking duties under AB 1493. Cal. Const. Art. III, Sec. 3.5.

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