Department of Transportation v. Armacost

⁴⁰⁰ MURPHY, Chief Judge. This case concerns the propriety of granting an interlocutory injunction delaying the implementation in Carroll County of Maryland’s Vehicle Emissions Inspection Program (VEIP). I. The VEIP is one part of Maryland’s overall effort to reduce air pollution within its borders. It is a segment of the national air pollution control scheme provided for by the federal Clean Air Act, codified as 42 U.S.C. §§ 7401-7642 .

Under the authority conferred by that legislation, the federal Environmental Protection Agency (EPA) has established uniform national ambient air quality standards for six pollutants. 1 These standards set limits on the amount of each pollutant in the air at levels which “allowing an adequate margin of safety, are requisite to protect the public health.” 42 U.S.C. § 7409 (b)(1). Under the federal statute, ambient air quality standards must be attained in each “air quality control region.” 42 U.S.C. § 7407 . These regions are designated by the EPA and may include portions of two or more states. Id.

There are six control regions in Maryland, two of which are involved in this case: the Maryland portion of the National Capital Interstate Air Quality Control Region (compromised of Montgomery and Prince George’s Counties, the District of Columbia, and its Northern Virginia Suburbs), 40 C.F.R. § 81.12 (1983), and the Metropolitan Baltimore Intrastate Air Quality Control Region (consisting of Baltimore City and Anne Arundel, Baltimore, Carroll, Harford and Howard Counties), 40 C.F.R. § 81.28 (1983). 2 ⁴⁰¹ Each state is made responsible for ensuring that the ambient standards are met by the deadlines prescribed in the Clean Air Act in each air quality control region within its borders. Each state must prepare a State Implementation Plan (SIP) for achieving these standards. 42 U.S.C. § 7410 . Any region failing to meet the standards by the end of 1975 is classified as a “non-attainment area.” The 1977 amendments to the Clean Air Act required states with nonattainment areas to submit SIPs by January 1, 1979 and mandated that all ambient air quality standards be achieved by the beginning of 1983. 42 U.S.C. § 7502 (a)(1). However, states may obtain a five-year extension of the deadline for attainment of the ozone and carbon monoxide standards. 42 U.S.C. § 7502 (b)(11).

The principal source for both pollutants is vehicle exhaust. 1 F. Grad, Treatise on Environmental Law § 2.01[2] at 2-6 — 2-7 (1983). Therefore, as a condition for receiving an extension, the state’s SIP must establish a specific schedule for implementation of a vehicle emission control inspection and maintenance program. 42 U.S.C. § 7502 (b)(ll)(B). Through annual inspection and maintenance of federally mandated pollution control equipment, it is possible to limit vehicle emissions to the levels required of all new vehicles sold in the United States. 3 Both the State and the EPA have identified the Baltimore and National Capital Air Quality Control Regions as nonattainment areas for ozone and carbon monoxide. 40 C.F.R. § 81.321 . Therefore, Maryland was required to submit a SIP in January, 1979 calculated to achieve the ambient standards by the 1988 deadline and to implement a vehicle emissions inspection program, as required by 42 U.S.C. § 7502 (b).

Failure to comply with the SIP requirements ⁴⁰² could lead to severe federal sanctions. Specifically, continued nonattainment could precipitate the loss of sewage treatment plant construction grants, 42 U.S.C. § 7616 and federal highway construction funds, 42 U.S.C. § 7506 (a). The annual loss to the State has been conservatively estimated to be as much as $123 million. Accordingly, the Maryland legislature authorized the Motor Vehicle Administration (MVA) of the Department of Transportation to adopt rules and regulations establishing an emissions inspection program.

Maryland Code (1984 Repl.Vol.) §§ 23-201 — 23-208 of the Transportation Article. Pursuant to § 23-207(b) of the Transportation Article, the Department of Health and Mental Hygiene adopted the exhaust emission standards necessary to help bring the State’s nonattainment areas into compliance with the national ambient air quality standards set by the EPA. COMAR § 10.18.22.03. 4 Limits were set for carbon monoxide, as well as for hydrocarbons, because the latter, when combined with other chemicals in the air and subjected to sunlight, produce the pollutant ozone. Ozone, together with other photochemical oxidants, create smog. 1 F. Grad, Treatise on Environmental Law, supra, at § 2.01[2].

The regulations of the Department of Health and Mental Hygiene also govern the procedures for inspecting vehicle exhaust emissions, provide specifications for the inspection testing equipment and prescribe methods for calibrating the devices. COMAR §§ 10.18.22.01-.06. Regulations setting forth the administration of the VEIP are found at COMAR §§ 11.14.06.01-.16. With the exception of the classes of vehicles exempted by § 11.14.06.05, all motor vehicles registered to residents of counties in the Baltimore and National Capital Air Quality Control Regions ⁴⁰³ must be inspected annually.

Each vehicle is assigned a month in 1984 when it must be submitted for inspection. Upon receiving notification from the MV A, the owner must take the vehicle to one of ten official inspection stations located in the area. COMAR § 11.14.06.06B. These stations are operated by a private firm under contract with the MVA and are subject to the MVA’s direct supervision.

The initial inspection costs nine dollars. Transportation Article § 23-205(a)(l). If the vehicle passes, it receives a Certificate of Compliance. Vehicles that fail receive a Certificate of Noncompliance and the owner is given thirty days to make necessary repairs.

COMAR § 11.14.06.080(4). The vehicle must be reinspected within that period; there is no charge for the second inspection. 5 COMAR §§ 11.14.06.-08C(4) and .15A(3). If the vehicle fails upon retesting, the owner must either bring its emissions within the prescribed limits or obtain a waiver. COMAR § 11.14.06.080(5).

To obtain a Waiver Certificate, the owner must present proof that up to $50 was spent on a “low emissions tune-up” as defined in COMAR § 11.14.06.08D(4). The cost of a low emissions tune-up allegedly ranges from $26 to $35. Failure to comply with VEIP can result in suspension of the registration of the noncomplying vehicle. COMAR § 11.14.-06.16B.

The inspection program was scheduled to begin on January 1, 1983, but its commencement was delayed by the legislature for one year. See ch. 492 of the Acts of 1982; ch. 312 of the Acts of 1983. In response, the EPA threatened to withhold federal funds. 48 Fed.Reg. 5049 (Feb. 3, 1983). Though no final action was taken on the EPA proposal, federal pressure has continued.

See 48 Fed.Reg. 35318 (Aug. 3, 1983). Delays involved in constructing the inspection stations required postponement of the program until February 1, 1984. ⁴⁰⁴ II. On January 11, 1984, the County Commissioners of Carroll County, in their individual and official capacities, the Town of Mt. Airy, its mayor, and a resident of Carroll County (the appellees) filed a petition for a declaratory judgment and an interlocutory injunction in the Circuit Court for Carroll County; they sought to have the VEIP declared unconstitutional, as applied to Carroll County, and to enjoin its implementation.

Named as defendants were the Department of Health and Mental Hygiene, the Department of Transportation and the MVA (the State). A hearing was held on January 23, 1984 before Judge Donald J. Gilmore at which evidence was introduced by both sides. On January 31, 1984, the court, following an oral opinion, granted an interlocutory injunction enjoining enforcement of the VEIP in Carroll County. The State noted its appeal on the same day and sought a stay of the injunction.

We granted certiorari prior to consideration of the appeal by the Court of Special Appeals. After a hearing, we stayed the interlocutory injunction pending resolution of the appeal.

III

The scope of our review in this case is limited since we do not now finally determine the merits of appellees’ arguments. Instead, we merely review whether the lower court’s decision granting the interlocutory injunction should be vacated. As a general rule, the appropriateness of granting an interlocutory injunction is determined by examining four factors: (1) the likelihood that the plaintiff will succeed on the merits; (2) the “balance of convenience” determined by whether greater injury would be done to the defendant by granting the injunction than would result from its refusal; 6 ⁴⁰⁵ (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted; and (4) the public interest. State Dep’t v. Baltimore County, 281 Md. 548, 554-57 , 383 A.2d 51 (1977). “[I]f the facts as stated in the bill of complaint or, when appropriate, as shown by the evidence, are not ‘full and sufficiently definite and clear, in support of the right asserted, and that such right has been violated,’ the court will not order preliminary relief.” Id. at 554 , 383 A.2d 51 quoting from Baltimore v. Warren Manuf.

Co., 59 Md. 96, 105 (1882). It is well accepted that an interlocutory injunction should not be granted unless the party seeking it demonstrates a likelihood of success on the merits. 1 High on Injunctions § 5 (3d ed. 1905); 43 C.J.S. Injunctions §§ 17 and 20 (1978). Viewing all the evidence in a light most favorable to the appellees, see Rose v. Bevan, 10 Md. 466, 470 (1857), we nevertheless conclude that the appellees have little chance of prevailing on the merits of their various claims. We need not, therefore, address the other test factors set forth in the Baltimore County case.

Accordingly, we shall vacate the interlocutory injunction. A. Fourth Amendment The lower court found that the VEIP raised a “serious Fourth Amendment question,” because it provides the MVA with authority to conduct warrantless searches of the vehicles tested. The court appears to have been concerned about the tailpipe tests as well as the examination of federally mandated pollution control equipment for evidence of tampering. The heart of VEIP resides in the analysis of exhaust gasses emitted from the tailpipe of each car tested.

The ⁴⁰⁶ testing procedures call for inserting the testing probe at least ten inches into the tailpipe of the vehicle while it is idling. COMAR § 10.18.22.04B(l)(b). Readings are taken over a period lasting about two minutes. We find no fourth amendment violations in these procedures.

It is well accepted that an individual has no expectation of privacy in items that he knowingly exposes to the public. Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967); Venner v. State, 279 Md. 47 , 367 A.2d 949 , cert. denied, 431 U.S. 932 , 97 S.Ct. 2638 , 53 L.Ed.2d 248 (1977). Examination of the exterior of an automobile does not infringe any privacy interest protected by the fourth amendment. Cardwell v. Lewis, 417 U.S. 583 , 94 S.Ct. 2464 , 41 L.Ed.2d 325 (1974).

In State v. Burns, 121 Ariz. 471 , 591 P.2d 563 (Ct.App.1979), the Court of Appeals of Arizona held that that state’s vehicle emission testing program did not violate the fourth amendment. See also Conner v. State, 34 Md.App. 124 , 366 A.2d 385 (1976) (individual has no expectation of privacy in the serial numbers stamped on the outside of a motorcycle and visible upon cursory inspection). We think it unlikely that vehicle owners have a reasonable expectation of privacy in the exhaust gases located ten inches from the end of their exhaust systems. We conclude that insertion of the analyzer probe into the vehicle’s tailpipe does not constitute a “search and seizure” within the meaning of the fourth amendment.

The lower court also indicated that § 23-202(d)(2) of the Transportation Article violated the fourth amendment by permitting warrantless searches of vehicles in connection with granting a waiver. That provision states that “[Notwithstanding the provisions of this section, [the MVA] may not grant a waiver if it is found in the testing process that a factory-installed emissions device has been tampered with or removed, or that the vehicle has been misfueled.” ⁴⁰⁷ No evidence is presented in the record to indicate that this section is enforced through physical inspections of vehicles. To the contrary, there is uncontroverted evidence that the MVA does not intend to examine the pollution control equipment on the vehicles tested. Therefore, nothing in the record or in § 23-202(d)(2) raises the specter of an unreasonable fourth amendment search.

But even if the State did conduct a superficial inspection of these devices, our conclusion would not be different. Assuming, without deciding, that getting under the vehicle to examine the catalytic converter or looking under the hood at other pollution control devices would constitute a fourth amendment search, it would not necessarily invalidate the VEIP. On its face, the fourth amendment does not prohibit all searches and seizures; it only forbids those which are unreasonable. Its essential purpose is to safeguard the privacy and security of individuals against arbitrary invasions by limiting the discretionary authority of government officials.

Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979). "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 654 , 99 S.Ct. at 1396 (footnote omitted). Obviously, the purported invasion of privacy caused by looking under the hood, beneath the car or behind the gas cap is far outweighed by the overwhelming and overriding governmental interest in providing cleaner air. State v. Burns, supra, 121 Ariz. 471 , 591 P.2d at 566-67 .

Furthermore, any search of this nature would likely be deemed consensual. No Maryland resident is forced to have his vehicle inspected; the penalty for noncompliance is a loss of the right to drive that vehicle. The VEIP does not affect a citizen’s right to drive any other vehicle or to seek alternative means of transportation. It is well accepted, as stated in Burns, 121 Ariz. 471 , 591 P.2d at 566 , that “consent to minimal intrusions may be required by the state as a ⁴⁰⁸ prerequisite to use of regulated means of travel.” See also United States v. Edwards, 498 F.2d 496 (2d Cir.1974), and Annot., 14 A.L.R.Fed. 286 (1973), and cases there cited, upholding the constitutionality of requiring airline passengers to submit to preflight searches of their persons and baggage as a condition to boarding the aircraft.

In conclusion, nothing in the VEIP appears likely to violate the fourth amendment. Therefore, the trial court erred in finding that appellees would likely prevail at trial on this issue. B. Equal Protection Appellees contend that certain classifications contained in the statutes and regulations at issue violate the equal protection principles embodied in the state and federal constitutions. 7 First, appellees argue that inclusion of Carroll County in the Metropolitan Baltimore Intrastate Air Quality Control Region is arbitrary and without rational basis. They reason that Carroll County is principally a rural area with no major pollution problems.

They argue that other similarly situated rural counties such as Frederick and Cecil Counties are not part of the YEIP. Therefore, the appeh lees contend, there is no rational reason for subjecting Carroll County residents to the program. The lower court found, and we agree, that appellees enjoy little possibility of success on this point. Uniformity of treatment throughout the State is not a prerequisite to satisfying the requirements of the equal protection clause.

Washabaugh v. Washabaugh, 285 Md. 393, 407 , 404 A.2d 1027 (1979). A statute enacted ⁴⁰⁹ pursuant to the State’s police power is not invalid merely because it affects counties unequally. E.g., McGowan v. Maryland, 366 U.S. 420, 427 , 81 S.Ct. 1101, 1105 , 6 L.Ed.2d 393 (1961); Supermarkets Gen. Corp. v. State, 286 Md. 611, 621 , 409 A.2d 250 (1979), appeal dismissed, 449 U.S. 801 , 101 S.Ct. 45 , 66 L.Ed.2d 5 (1980); Matter of Trader, 272 Md. 364, 383 , 325 A.2d 398 (1974).

In reviewing statutory distinctions based on territory, the rational basis test applies because no fundamental right or suspect class is affected. Washabaugh, supra, 285 Md. at 407 , 404 A.2d 1027 ; Donnelly Adv. Corp. v. City of Balto., 279 Md. 660 , 370 A.2d 1127 (1977). Under the rational basis test, a statutory classification enjoys a strong presumption of constitutionality; the party attacking it must show by clear and convincing evidence that it does not rest upon any rational basis but is essentially arbitrary.

E.g., Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 656-57 , 458 A.2d 758 (1983). Viewing all of the evidence in a light most favorable to the appellees, we find that a rational basis for the territorial distinctions drawn here exists. Carroll County is a nonattainment area for ozone. Therefore, the State clearly had a rational reason for including the County in the VEIP, i.e., to bring it within the federally prescribed limits for that pollutant.

That other “rural” counties in the area have been excluded is completely irrelevant. Underinclusiveness does not create an equal protection violation under the rational basis test. Equal protection principles do not require the State to attack all of the various aspects of a problem at once; the government may legislate to remedy one phase of a problem and leave other phases to be resolved later. Bowie Inn v. City of Bowie, 274 Md. 230, 241 , 335 A.2d 679 (1975).

See also Dandridge v. Williams, 397 U.S. 471, 486-87 , 90 S.Ct. 1153, 1162-1163 , 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 489 , 75 S.Ct. 461, 465 , 99 L.Ed. 563 (1955); Montgomery Co. v. Fields Road, 282 Md. 575 , 386 A.2d 344 (1978) (a legislative body may weigh relative needs and restrict the application of a legislative policy to less than the entire field). ⁴¹⁰ When the State moves to correct an evil, it need not correct all of the evil at once; rather, it may proceed step by step. Montgomery Co. v. Fields Road, supra, 282 Md. at 581 , 386 A.2d 344 . “If the classification made by the Legislature is otherwise justified, there can be no sound complaint that the legislative purpose might be better or more fully achieved by other or more expansive and inclusive classification.” Harden v. Mass Transit Adm., 277 Md. 399, 414 , 354 A.2d 817 (1976), quoting Allied American Co. v. Comm’r., 219 Md. 607, 624 , 150 A.2d 421 (1959). Consequently, the VEIP is not constitutionally infirm because it does not require emissions testing in other rural counties. 8 Appellees’ second line of attack is directed at the exemptions provided in COMAR § 11.14.06.05. This provision grants exemptions to nine classes of vehicles otherwise covered by the VEIP.

Appellees contend that the creation of these distinctions violates the equal protection clause. They suggest that the appropriate standard for reviewing these exemptions is the “heightened scrutiny” test set forth in Attorney General v. Waldron, 289 Md. 683 , 426 A.2d 929 (1981). There, we held that where a statute creates a “sensitive,” though not “suspect” criteria of classification, affects “important," though not fundamental personal rights or works a “significant interference” with a liberty or benefit vital to the individual, the courts will apply a standard more exacting than the rational basis test but less rigorous than the strict scrutiny analysis. Id. at 711-714 , 426 A.2d 929 .

See also Hornbeck, supra, 295 Md. at 641-42 , 458 A.2d 758 . We think it plain that the impact of the VEIP does not implicate the Waldron standard of review. Clearly, none of the classifications created by the regulations are based on “sensitive” criteria like gender. ⁴¹¹ Waldron, supra, 289 Md. at 711 , 426 A.2d 929 ; Hornbeck, supra, 295 Md. at 641 , 458 A.2d 758 . Nor does the VEIP affect an “important” personal right or “significantly interfere” with a vital liberty.

It is true that the Supreme Court has recognized the importance of a citizen’s right to travel between states. E.g., Dunn v. Blumstein, 405 U.S. 330 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969); L. Tribe, American Constitutional Law, § 16-8 (1978). However, the VEIP does not significantly impair that right. It does not prohibit or penalize interstate travel.

Nor does it take away an individual’s right to drive. Instead, it merely precludes an owner from driving a particular vehicle if that vehicle does not comply with emissions standards and if the owner refuses to repair it. This is not the type of deprivation to which the Waldron heightened scrutiny standard applies; rather, it is the type of regulation to which the rational basis test is applied. As we indicated earlier, regulations which do not make distinctions based on suspect classifications or impair the exercise of fundamental rights are presumed to be constitutional.

They will be upheld unless the party challenging them proves they have no rational basis. They will be sustained if any state of facts reasonably may be conceived to sustain them. See, e.g., Hornbeck, supra, 295 Md. at 642 , 458 A.2d 758 . The State has demonstrated in the record a rational basis for each of the exemptions provided for in the VEIP.

We consider them seriatim. Farm vehicles are exempt, COMAR § 11.14.06.05B(1), because they travel very few miles and add little to the pollution problem. Historic and antique vehicles receive an exemption, COMAR § 11.14.06.-05B(2), because they are only driven on weekends and thus are responsible for only a minor portion of the total vehicle emissions. Gasoline powered trucks and buses with a gross vehicle weight greater than ten thousand pounds are not covered by the VEIP, COMAR § 11.14.06.05B(3), because of ⁴¹² the unquantified emissions reduction potential of these heavy duty trucks and buses as well as anticipated “start-up problems” associated with the commencement of inspections.

With this in mind, the EPA suggested that heavy duty vehicles be exempt from the program initially. Maryland inspection stations have been constructed with at least one inspection bay large enough to accommodate these larger vehicles; thus, they may be added to the program later if it becomes feasible. Motorcycles are excused from the program, COMAR § 11.14.06.05B(4), because special equipment is needed to test them and because they travel relatively few vehicle miles; thus it would not be cost-effective to include them in the program. The program also exempts specially registered vehicles owned temporarily by vehicle dealers, finance companies and others.

COMAR § 11.14.06.05B(5). These vehicles are specially registered for limited transportation purposes and will be subject to inspection once they are transferred permanently. Section 11.14.06.05B(6) excepts vehicles registered in Maryland but not driven within the State. It is designed to cover vehicles owned by members of the armed services.

Obviously, these vehicles do not emit pollutants in Maryland and thus there is no reason to force owners to have them inspected. If a vehicle covered by subsection B(6) is returned to the State, however, it is subject to inspection. All diesel and alternate fuel powered vehicles are exempt, COMAR § 11.14.06.-05B(7). The record shows that diesel engines do not deteriorate over time and therefore inspection and maintenance would not reduce emissions.

Furthermore, special equipment would be needed to test diesel powered vehicles, increasing the cost of the program significantly without an appreciable reduction in emissions. Vehicles that run on electricity, propane, compressed natural gas, or other alternative fuels emit very small amounts of each pollutant and some are pollution free. Vehicles more than twelve years old are exempt under COMAR § 11.14.06.05B(9). The State found that these older vehicles are driven less than others and that the percentage reduction in emissions to be gained ⁴¹³ by inspection and maintenance was minor compared with the cost to the owner, most of whom are from low income groups.

Finally, vehicles less than twelve months old are exempt. COMAR § 11.14.06.05B(10). States are prohibited by 42 U.S.C. § 7543 (a) from requiring inspections as a condition of initial registration. For the twelve months after initial registration, the MYA could reasonably have determined that noncompliance was unlikely because a new engine will not deteriorate significantly below federal new vehicle emissions standards during that time.

We conclude, therefore, that a rational basis for each of these exemptions appears to exist. Appellees argue that § 11.14.06.05 exempts major emissions sources and