April 8, 2026- New Mexico Automotive Dealers Association v. New Mexico Environmental Improvement Board, No. A-1-CA-41585

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in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: April 8, 2026	3
No. A-1-CA-41585	4
NEW MEXICO AUTOMOTIVE DEALERS	5
ASSOCIATION and AUTOMUNDO DE	6
GARCIA, LTD. COMPANY,	7
Appellants,	8
v.	9
NEW MEXICO ENVIRONMENTAL	10
IMPROVEMENT BOARD and	11
ALBUQUERQUE-BERNALILLO COUNTY	12
AIR QUALITY CONTROL BOARD,	13
Appellees,	14
and	15
NATURAL RESOURCES DEFENSE COUNCIL,	16
SOUTHWEST ENERGY EFFICIENCY PROJECT,	17
COALITION FOR CLEAN AFFORDABLE ENERGY,	18
350 NEW MEXICO, WESTERN RESOURCE	19
ADVOCATES, PROSPERITY WORKS,	20
CONSERVATION VOTERS NEW MEXICO,	21
SIERRA CLUB, NEW MEXICO INTERFAITH	22
POWER AND LIGHT, CENTER FOR CIVIC	23
POLICY, WESTERN ENVIRONMENTAL LAW	24
CENTER, CALSTART, NEW MEXICO	25
ENVIRONMENT DEPARTMENT, and	26
350 SANTA FE,	27
Intervenors-Appellees,	28
Court of Appeals of New Mexico
Filed 4/8/2026 10:09 AM

and	1
NICHOLAS R. MAXWELL,	2
Intervenor,	3
IN THE MATTER OF PETITION TO AMEND	4
EXISTING REGULATIONS 20.2.91 NMAC and	5
20.11.104 NMAC, NEW MOTOR VEHICLE	6
EMISSION STANDARDS.	7
APPEAL FROM ENVIRONMENTAL IMPROVEMENT BOARD and	8
THE ALBUQUERQUE BERNALILLO AIR QUALITY CONTROL BOARD	9
Felicia Orth, Administrative Hearing Officer	10
Atler Law Firm, P.C.	11
Timothy J. Atler	12
A. Howland Swift	13
Jazmine J. Johnston	14
Albuquerque, NM	15
Domenici Law Firm, P.C.	16
Pete Domenici	17
Albuquerque, NM	18
for Appellants	19
Raúl Torrez, Attorney General	20
Ellen Venegas, Assistant Solicitor General	21
Blaine N. Moffatt, Division Director	22
Seth C. McMillan, Deputy Solicitor General	23
Santa Fe, NM	24
for Appellee New Mexico Environmental Improvement Board	25
Antoinette Sedillo Lopez	26
Albuquerque, NM	27
for Appellee City of Albuquerque-Bernalillo County Air Quality Control Board	28

Baake Law, LLC	1
David R. Baake	2
Las Cruces, NM	3
for Intervenors-Appellees Southwest Energy Efficiency Project,	4
350 New Mexico, Western Resource Advocates,	5
Prosperity Works, Conservation Voters New Mexico,	6
Sierra Club, New Mexico Interfaith Power and Light,	7
Center for Civic Policy, Western Environmental	8
Law Center, and 350 Santa Fe	9
Andrew P. Knight, Assistant General Counsel	10
Brecken L. Scott, Assistant General Counsel	11
Santa Fe, NM	12
for Intervenor-Appellee New Mexico Environment Department	13
Charles de Saillan	14
Santa Fe, NM	15
for Intervenor-Appellee Coalition for Clean Affordable Energy	16
Vivian Wang	17
Alexis Mena	18
New York, NY	19
for Intervenor-Appellee Natural Resources Defense Council	20

OPINION	1
YOHALEM, Judge.	2
{1} 	Appellants New Mexico Automotive Dealers Association and Automundo De	3
Garcia, Ltd. Co. (collectively, Auto Dealers) appeal the adoption of the State of	4
California’s Advanced Clean Cars II (ACC II) new motor vehicle emission control	5
standards for model years 2027 through 2032 by the New Mexico Environmental	6
Improvement Board (EIB) and the Albuquerque-Bernalillo County Air Quality	7
Control Board (AQCB)0F
1 (collectively, the Boards).1F
2 See 20.2.91 NMAC (7/1/2022	8
as amended through 12/31/2023) (EIB statewide regulations); 20.11.104 NMAC	9
(7/1/2022 as amended through 12/31/2023) (AQCB regulations). The regulations	10
provide, in relevant part, that an increasing percentage of new vehicles provided to	11
New Mexico in each model year, beginning with model year 2027, must be zero	12
emission vehicles (ZEVs).2F
3 Auto Dealers challenge the validity of these regulations	13
1 Regulations adopted by the EIB apply to all nontribal areas of the State of
New Mexico, with the exception of the City of Albuquerque and Bernalillo County,
where 	the 	regulations 	adopted 	by 	the 	AQCB 	apply. 	See 	NMSA 	1978,
§§ 74-2-4, -5(B) (2021); Albuquerque, N.M., Rev. Ordinance of Albuquerque, ch.
9, art. 5, §§ 9-5-1-4(B), -6 (1974, amended 1993); Bernalillo County, N.M., Code of
Ordinances, ch. 30, art. II, §§ 30-33, -35 (1994).
2 Intervenors-Appellees Climate Advocates and the New Mexico Environment
Department (NMED) are also parties to this appeal. They have filed briefs on appeal
arguing in favor of the validity of the regulations, which we have reviewed and
considered.
3 The EIB and AQCB regulations incorporate by reference Title 13 of the
California Code of Regulations’ new vehicle emission control standards for model
years 	2027 	through 	2032. 	See 	20.2.91.101(A) 	NMAC; 	20.2.91.102 	NMAC;

2
under both the federal Clean Air Act (CAA), Pub. L. 101-549, 104 Stat 2399 (1990),	1
42 U.S.C. §§ 7401-7671q, and the New Mexico Air Quality Control Act (AQCA),	2
NMSA 1978, §§ 74-2-1 to -17 (1967, as amended through 2021). Not persuaded by	3
Auto Dealers’ arguments, we affirm.3F
4
4
BACKGROUND	5
The Federal Regulatory Scheme Governing Vehicle Emissions	6
{2} 	The CAA directs the EPA to adopt regulations setting emission control	7
standards for new motor vehicles nationwide. See 42 U.S.C. § 7521(a). To ensure	8
20.11.104.101(A) NMAC, 20.11.104.102 NMAC; see also Cal. Code Regs., tit. 13,
§ 1962.4(c)(1)(B) (2022) (mandating 43 percent ZEV manufacturing percentage
requirement at model year 2027 and 82 percent by model year 2032). Because the
regulations adopted by the EIB and the AQCB relevant to this appeal are identical
and were adopted following a joint public hearing where the Boards heard the same
evidence, we discuss the regulations together, and do not generally distinguish
between the EIB and the AQCB.
4 We note that Auto Dealers previously filed a motion to stay this appeal with
this Court. Auto Dealers’ request for a stay was based on pending litigation in federal
court in California challenging Congress’s authority to withdraw by Congressional
resolution a waiver previously granted to California by the Environmental Protection
Agency (EPA). New Mexico, along with California and a number of other states, is
a party-plaintiff in that lawsuit. See Complaint for Declaratory and Injunctive Relief,
State of Cal. v. United States, No. 3:25-cv-04966 (N.D. Cal. June 12, 2025). We
acknowledge that the outcome of this pending litigation is uncertain, and some or all
of the New Mexico regulations at issue in this appeal could possibly be invalidated.
We 	nevertheless 	denied 	the 	stay. 	We 	were 	persuaded 	by 	the 	Boards’ 	and
Intervenors’ request that we proceed to decide this appeal so that automobile
manufacturers and other interested parties are on timely notice of New Mexico’s
choice of the California ACC II standards, and so that New Mexico will be ready to
enforce the ZEV standards without the confusion and delay that would be created by
having to wait for this appeal to be resolved should the federal courts allow the ACC
II standards to be implemented.

3
national uniformity, Congress preempts state law concerning new vehicle emissions,	1
preventing each state from setting its own standards. See 42 U.S.C. § 7543(a).	2
Congress makes one exception, which is central to this case: the EPA is authorized	3
to grant a waiver of preemption to California—the only state having vehicle	4
emission standards in place prior to the enactment of the CAA. See 42 U.S.C.	5
§ 7543(a)-(b). Section 177 of the CAA, 42 U.S.C. § 7507, permits states to choose	6
to “piggyback” on California’s new vehicle emission control standards, so long as	7
the standards adopted by another state “are identical to the California standards for	8
which a waiver has been granted [by the EPA] for such model year,” and are adopted	9
by both California and that state “at least two years before commencement of such	10
model year.” 42 U.S.C. § 7507(1), (2). The model year commences on January 1 of	11
such calendar year. See 40 C.F.R. § 85.2302.	12
New Mexico Law Governing Vehicle Emission Control Standards	13
{3} 	In New Mexico, the Boards are authorized by statute to “adopt, promulgate,	14
publish, amend and repeal rules and standards consistent with [AQCA] to attain and	15
maintain national ambient air quality standards and prevent or abate air pollution.”	16
Section 74-2-5(B)(1). As previously noted, the AQCA provides that rules adopted	17
by the EIB apply to nontribal areas of the state outside of the City of Albuquerque	18
and Bernalillo County, see § 74-2-3(B), and those adopted by the AQCB apply to	19
Albuquerque and Bernalillo County. See supra note 1. Our Legislature’s delegation	20

4
of rulemaking authority authorizes the Boards to adopt new vehicle emission control	1
standards for New Mexico that comply with or exceed federal requirements. See	2
§ 74-2-5(D)(2), (3) (authorizing the Boards to adopt regulations that are “at least as	3
stringent” as any federal emission standard or limitation).	4
New Mexico’s Adoption of California’s ACC II Emission Standards	5
{4} 	In 2012, California adopted new vehicle emission standards known as	6
Advance Clean Cars I (ACC I). See Notice of Decision Granting a Waiver of CAA	7
Preemption for California’s Advanced Clean Car Program, 78 Fed. Reg. 2112 (Jan.	8
9, 2013). The ACC I regulations set California’s new vehicle emission control	9
standards well in advance for model years 2018 through 2025. Id. The EPA granted	10
California a waiver of EPA’s federal standards on January 9, 2013. Id.; see also Cal.	11
Code Regs. tit. 13, § 1962.2 (2012) (ZEV mandates for year 2018 through 2025).	12
{5} 	On July 1, 2022, the Boards adopted the California ACC I new vehicle	13
emission control standards for New Mexico, beginning with model year 2026. See	14
20.2.91.2 NMAC (7/1/2022); 20.11.104 NMAC (7/1/2022) The EIB’s New Mexico	15
rules 	“adopt 	and 	implement 	the 	California 	vehicle 	emission 	standards 	and	16
requirements statewide pursuant to Section 177 of the federal [CAA].” See 20.2.91.6	17
NMAC (7/1/2022); see also 20.11.104.6 NMAC (7/1/2022) (stating same for AQCB	18
regulation).	19

5
{6} 	Four months after the Boards adopted New Mexico rules incorporating	1
verbatim the California ACC I standards, on November 30, 2022, California adopted	2
ACC II emission standards, effective beginning in model year 2026. See Cal. Code	3
Regs. tit. 13, § 1962.4 (2022). Relevant to this appeal, California’s new vehicle	4
emission standards for 2026 and beyond require manufacturers of automobiles and	5
other covered vehicles to provide increasing percentages of ZEVs each model year	6
to automobile dealers in California, reaching 100 percent ZEVs in model year 2035	7
(the ZEV standards).4F
5 See Cal. Code Regs. tit. 13, § 1962.4(c) (2022).	8
{7} 	In July 2023, the NMED and the City of Albuquerque Environmental Health	9
Department petitioned the Boards to amend New Mexico’s emission control	10
regulations by adopting California’s ACC II emission standards, including the new	11
ZEV standards. Auto Dealers opposed the petitions, specifically objecting to New	12
Mexico adopting California’s ZEV standards.	13
{8} 	In November 2023, the Boards held a joint rulemaking hearing to consider the	14
petitions’ request to amend New Mexico’s new vehicle emission control regulations.	15
Following the joint public rulemaking hearing, both 	Boards issued identical	16
regulations incorporating the California ACC II standards, including the ZEV	17
5 The Boards adopted other aspects of California’s ACC II. See 20.2.91.118
NMAC; 	20.2.91.119 	NMAC; 	20.2.91.120 	NMAC; 	20.11.104.118 	NMAC;
20.11.104.119 NMAC; 20.11.104.120 NMAC. Auto Dealers challenge only the
ZEV standards in this appeal.

6
standards, beginning with model year 2027 and continuing through model year 2032,	1
for “all new motor vehicles imported, sold, leased, or registered with the New	2
Mexico Motor Vehicle Division.” See 20.2.91.101 NMAC; 20.2.91.108 NMAC;	3
20.11.104.101 NMAC; 20.11.104.108 NMAC. The Boards explained that by	4
incorporating the relevant provisions of the California Code of Regulations by	5
reference, they ensured compliance with the “identicality” requirement of Section	6
177 of the CAA, 42 U.S.C. § 7507(1).	7
{9} 	We note that the EPA granted California’s request for a waiver for its ACC II	8
emission standards in December 2024, thirteen months after the Boards’ adoption of	9
the ACC II standards in New Mexico, and two years before the beginning of the first	10
model year covered by the ACC II regulations in New Mexico. See Notice of	11
Decision, 90 Fed. Reg. 642-43 (Jan. 6, 2025) (publishing EPA’s December 2024,	12
grant of a waiver of CAA preemption for California’s ACC II regulations).	13
{10} 	We reserve review of the evidence presented at the rulemaking hearing and of	14
the Boards’ findings and conclusions for our discussion of the issues on appeal.	15
DISCUSSION	16
{11} 	Auto Dealers appealed the Boards’ new vehicle emission regulations to this	17
Court, pursuant to Section 74-2-9 of the New Mexico AQCA, asking this Court to	18
set aside the regulations incorporating the California ZEV standards for new motor	19
vehicles. Section 74-2-9(A) provides that “[a]ny person adversely affected by an	20

7
administrative action taken by the [EIB or the AQCB] may appeal to the court of	1
appeals.” All such appeals “shall be upon the record made at the hearing.” Id. This	2
Court is permitted by Section 74-2-9(C) to “set aside the action [of the Boards] only	3
if found to be: (1) arbitrary, capricious or an abuse of discretion; (2) not supported	4
by substantial evidence in the record; or (3) otherwise not in accordance with law.”	5
{12} 	We first consider Auto Dealers’ arguments claiming error as a matter of	6
federal law in the Boards’ adoption of the ZEV standards. Auto Dealers argue that	7
California’s ZEV standards are not “emission control standards” as described in the	8
CAA that are subject to the identicality requirement of Section 177 of the CAA, and,	9
therefore, the Boards acted arbitrarily and capriciously by not taking evidence and	10
considering ZEV standards unique to New Mexico. The Boards argue first that this	11
issue was not preserved for our review, and then point to federal precedent that	12
resolves this issue against Auto Dealers’ argument.	13
{13} 	After a careful review of the record, we agree with the Boards that Auto	14
Dealers did not make this argument to the Boards either at the hearing, or in written	15
pleadings before or after the hearing. It was, therefore, not preserved for our review.	16
We are not persuaded by Auto Dealers’ request that we exercise our discretion to	17
address this argument under the public interest exception to our preservation	18
requirements. 	We, 	therefore, 	decline 	to 	address 	Auto 	Dealers’ 	unpreserved	19
argument.	20

8
{14} 	We next address Auto Dealers’ second federal statutory challenge to the	1
Boards’ adoption of the California ZEV standards. Auto Dealers argue that the	2
Boards’ actions were contrary to the plain language of Section 177 of the CAA, 42	3
U.S.C. § 7507(1), which Auto Dealers claim allows New Mexico to adopt	4
California’s regulations only after the EPA has granted a waiver to California. It is	5
undisputed that EPA did not grant California’s waiver request until December 2024,	6
thirteen months after the New Mexico regulations were adopted. We agree with the	7
decision of the federal Court of Appeals for the Second Circuit in Motor Vehicle	8
Manufacturers Ass’n of United States, Inc. v. New York State Department of	9
Environmental Conservation (MVMA), 17 F.3d 521, 533-36 (2d Cir. 1994). In a	10
well-reasoned opinion, the Second Circuit held in MVMA that other states may adopt	11
California’s emission control regulations before EPA grants California a waiver, but	12
may not take any action to enforce their regulations until the EPA grants the waiver.	13
Id. The Boards’ adoption of rules effective for model year 2027 meet this standard.	14
{15} 	Finally, we address Auto Dealers’ central argument on appeal: their claim that	15
the Boards acted arbitrarily and capriciously and without substantial support in the	16
record as a whole when they concluded that adopting California’s ZEV standards	17
beginning in model year 2027 is a technically practicable and economically	18
reasonable choice for New Mexico. We are not persuaded that the Boards’ decision	19
is arbitrary, capricious or without sufficient support in the record.	20

9
{16} 	For the reasons stated, we affirm the validity of the regulations, including the	1
ZEV standards, adopted by the Boards.	2
I. 	Auto Dealers Failed to Preserve Their Statutory Construction Argument	3
Concerning the Definition of an “Emission Control Standard” and We	4
Decline to Apply the Public Interest Exception to Preservation	5
{17} 	Rule 12-601(B) NMRA provides that the Rules of Appellate Procedure apply	6
to appeals from agency rulemaking. We, therefore, apply our rule requiring	7
preservation, Rule 12-321 NMRA, and the precedent we have developed under that	8
rule, to Auto Dealers’ legal claims under Section 177 of the CAA. See Martinez v.	9
Pub. Emps. Ret. Ass’n of N.M., 2012-NMCA-096, ¶ 24, 286 P.3d 613 (“Preservation	10
of issues is required on appeal from decisions in administrative proceedings.”). Auto	11
Dealers’ statutory construction argument is the predicate for their claim that the	12
Boards’ failure to consider evidence supporting ZEV standards different from those	13
adopted by California was arbitrary and capricious.	14
{18} 	Rule 12-321(A) requires that in order “[t]o preserve an issue for review, it	15
must appear that a ruling or decision by the [lower tribunal] was fairly invoked.”	16
Our precedent explains that “[t]he party claiming error must have raised the issue	17
below clearly and have invoked a ruling by the [lower tribunal].” See Diversey Corp.	18
v. Chem-Source Corp., 1998-NMCA-112, ¶ 12, 125 N.M. 748, 965 P.2d 332	19
(citation omitted). In order to invoke a ruling from a tribunal, a party must have	20
asserted a legal principle, developed any facts necessary to show that the legal	21

10
principle applies, and brought the issue to the attention of the decision-maker. See	1
State v. Adame, 2020-NMSC-015, ¶ 13, 476 P.3d 872. “To preserve an issue for	2
review on appeal, it must appear that appellant fairly invoked a ruling of the [lower	3
tribunal] on the same grounds argued in the appellate court.” Woolwine v. Furr’s,	4
Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.	5
{19} 	This 	Court 	has 	described 	three 	purposes 	served 	by 	our 	preservation	6
requirements: “(1) to specifically alert the [tribunal] to a claim of error so that the	7
error may be corrected at that time, (2) to allow the opposing party adequate	8
opportunity to respond to a claim of error, and (3) to create a sufficient record to	9
allow this Court to make an informed decision regarding the contested issue.” Estate	10
of Nauert v. Morgan-Nauert, 2012-NMCA-037, ¶ 28, 274 P.3d 799.	11
A. 	Preservation	12
{20} 	The Boards contend that Auto Dealers’ two related contentions on appeal (1)	13
that the CAA allowed the Boards to consider ZEV percentages different than	14
California’s, and (2) that the Board acted arbitrarily and capriciously by not taking	15
evidence on and considering ZEV standards for New Mexico that differed from both	16
the federal and California standards, were not preserved for our review. Auto Dealers	17
cite in response to their proposed statement of reasons submitted to the Boards prior	18
to the public hearing, claiming that this statement sufficiently preserved both issues.	19
The paragraphs cited by Auto Dealers, however, refer to the argument, presented by	20

11
Auto Dealers at the public hearing, that the ACC I California standards already	1
adopted by New Mexico meet the requirements of Section 177 of the CAA, and	2
should be left in place to see how these standards work in 2026 before ACC II ZEV	3
standards are considered for later model years. We do not agree that Auto Dealers’	4
request to the Boards to stick with the ACC I ZEV percentages for another year,	5
rather than adopting California’s new ACC II ZEV standards, alerted the Boards and	6
the opposing parties to the complex statutory interpretation argument Auto Dealers	7
now make on appeal: that the ZEV standards are not “standards relating to control	8
of emissions,” as that phrase is used in Section 177 of the CAA, because the ZEV	9
standards relate only to the supply of new ZEVs, rather than the imposition of	10
permissible emissions for all vehicles.	11
{21} 	This statutory construction argument is a far cry from the request made by	12
Auto Dealers to delay adoption of California’s ACC II ZEV standards and keep the	13
ACC I standards until more data could be gathered on the New Mexico market. This	14
argument did not satisfy any of the purposes of preservation: the Boards were not	15
alerted that they must consider and decide the statutory construction arguments now	16
made on appeal, the state agencies and intervenors supporting the adoption of the	17
regulations 	were 	not 	alerted 	that 	they 	needed 	to 	respond 	to 	this 	statutory	18
interpretation argument, and no record was made concerning the alternative ZEV	19

12
standards Auto Dealers now argue that the Boards failed to consider. See Estate of	1
Nauert, 2012-NMCA-037, ¶ 28.	2
B. 	General Public Interest Exception to Preservation	3
{22} 	Concluding that Auto Dealers’ statutory construction argument about the	4
meaning of “emission control standards” under Section 177 of the CAA was not	5
preserved before the Boards, we turn to Auto Dealers’ request that we apply the	6
general public interest exception to preservation. Auto Dealers argue that we should	7
consider their statutory construction argument even though it is raised for the first	8
time on appeal “because the heightened ZEV mandate will have a resounding effect	9
on the automobile industry, which is a matter of public interest.”	10
{23} 	Rule 	12-321(B)(2)(a) 	allows 	this 	Court, 	in 	its 	discretion, 	to 	review	11
unpreserved issues involving “general public interest.” Reviewing courts “have	12
invoked the general public interest exception to the preservation rule where	13
review . . . is likely to settle a question of law affecting the public at large or a great	14
number of cases and litigants in the near future.” Azar v. Prudential Ins. Co. of Am.,	15
2003-NMCA-062, ¶ 28, 133 N.M. 669, 68 P.3d 909; see State v. Candelaria, 2019-	16
NMCA-032, ¶ 22, 446 P.3d 1205 (applying the general public interest exception	17
because the case presented “an issue of law that is likely to recur in the Second	18
Judicial District Court, and perhaps elsewhere”).	19

13
{24} 	The federal law regarding motor vehicle emission standards is in flux. See	1
supra note 4. It is far from clear that the issues raised by Auto Dealers on appeal	2
regarding California’s ACC II ZEV standards will arise again in New Mexico. Nor	3
is the public without guidance on this issue if it does arise again. Auto Dealers	4
concede on appeal that the federal statutory construction issue they raise for the first	5
time on appeal has been addressed by several federal courts of appeals, with	6
consistent results that reject Auto Dealers’ argument that the California ZEV	7
standards are not “emission control standards” under the CAA. See Am. Auto. Mfrs.	8
Ass’n v. Cahill, 152 F.3d 196, 200 (2nd Cir. 1998); Ass’n of Int’l Auto. Mfrs., Inc. v.	9
Comm’r, Mass. Dep’t of Env’t Prot., 208 F.3d 1, 4 (1st Cir. 2000) (holding that	10
“ZEV mandates are [emission control] standards within the meaning of [the CAA]”	11
(internal quotation marks omitted)).	12
{25} 	We conclude that there is no significant public interest in this Court resolving	13
this unpreserved question on the inadequate record in this case. We therefore do not	14
consider Auto Dealers’ statutory interpretation argument on appeal or their related	15
argument that the Boards failed to elicit and consider evidence on alternative ZEV	16
standards unique to New Mexico. See Selmeczki v. N.M. Dep’t of Corr., 2006-	17
NMCA-024, ¶ 24, 139 N.M. 122, 129 P.3d 158 (declining to review an issue not	18
preserved in the relevant administrative proceeding).	19

14
II. 	Section 177 	of 	the CAA 	Does 	Not Prohibit 	States 	from 	Adopting	1
California’s Regulations Prior to the Grant of an EPA Waiver for	2
California	3
{26} 	We next address the second federal statutory argument Auto Dealers make on	4
appeal: that New Mexico was required to wait to adopt California’s ACC II standards	5
until California received a waiver from the EPA under Section 209(b)(1) of the	6
CAA, 42 U.S.C. § 7543(b)(1). Assuming without deciding that the issue was	7
sufficiently preserved for our review, we agree with the federal courts to consider	8
this issue that states are permitted to adopt the California regulations prior to	9
issuance of an EPA waiver, so long as the state regulations are not enforced until	10
EPA grants California a waiver.	11
A. 	Preservation	12
{27} 	The EIB and Intervenor Climate Advocates argue that Auto Dealers failed to	13
preserve this issue for our review on appeal. They claim that Auto Dealers’ inclusion	14
of this issue in a single paragraph of their written statement of reasons and order,	15
submitted to the Boards two days before the hearing was set to begin, was not	16
sufficient to preserve this issue for our review on appeal.	17
{28} 	Auto Dealers’ statement of reasons reads as follows: “New Mexico may not	18
adopt California vehicle emission standards unless and until EPA grants California	19
a waiver pursuant to Section 209(b)(1) of the CAA.” See 42 U.S.C. § 7543(b)(1).	20
Auto Dealers’ quoted statement was not accompanied by argument or citation to	21

15
authorities and Auto Dealers did not raise or argue this issue during the course of the	1
public hearing. Moreover, neither Board addressed this argument in its findings and	2
conclusions.	3
{29} 	Although preservation of this issue is less than ideal, because this is purely a	4
question of statutory construction that we conclude lacks merit, we assume without	5
deciding that Auto Dealers’ statement of reasons prior to the hearing was sufficient	6
to preserve it for our review and proceed to address it on its merits.	7
B. 	Construction of Section 177 of the CAA	8
{30} 	Section 177 of the CAA, 42 U.S.C. § 7507, states, in relevant part, as follows:	9
Any [s]tate may adopt and enforce for any model year standards	10
relating to control of emissions from new motor vehicles . . . if—	11
(1) such standards are identical to the California standards for which	12
a waiver has been granted for such model year, and	13
(2) California and such [s]tate adopt such standards at least two years	14
before commencement of such model year.	15
{31} 	It is undisputed that EPA granted California a waiver for its ACC II standards,	16
including the ZEV standards adopted by New Mexico, in December 2024, and	17
published that waiver in the Federal Register on January 6, 2025. Auto Dealers do	18
not claim any violation of the two-year advance notice requirement of 42 U.S.C.	19
§7501(2).	20
{32} 	Auto Dealers claim that the use of the past tense in the phrase in 42 U.S.C.	21
§ 7507(1), noted above, stating that any state’s regulations must be “identical to the	22

16
California standards for which a waiver has been granted for such model year,”	1
indicates that the EPA waiver “must have already been granted [by EPA] before	2
another state can adopt or enforce the standards.”	3
{33} 	“Our duty, when interpreting federal statutes, is to give effect to the intent of	4
the legislative body. In this instance, we endeavor to give effect to the intent of	5
Congress.” State v. Branham, 2004-NMCA-131, ¶ 11, 136 N.M. 579, 102 P.3d 646	6
(citation omitted). In construing a federal statute, we look to federal precedent for	7
guidance. See Inv. Co. of the Sw. v. Reese, 1994-NMSC-051, ¶ 16, 117 N.M. 655,	8
875 P.2d 1086 (“When a case concerns a right or obligation created by federal law,	9
a state court should look to federal precedent for guidance in interpretation.”).	10
{34} 	Federal courts, construing federal statutes, apply virtually the same principles	11
of statutory construction applied by this Court to construe New Mexico statutes.	12
Primary among these rules of construction is the directive that courts look first to the	13
plain meaning of the statute. Compare MVMA, 17 F.3d at 531 (stating that “[t]he	14
familiar rules of statutory construction look first to the language of the statute itself”	15
(internal quotation marks and citation omitted)), with Leger v. Gerety, 2022-NMSC-	16
007, ¶ 27, 503 P.3d 349 (“The first and most obvious guide to statutory interpretation	17
is the wording of the statutes themselves.” (internal quotation marks and citation	18
omitted)). Where there is ambiguity, both federal and state courts look beyond the	19
plain meaning to other tools of statutory interpretation to discern the intent of the	20

17
legislative body. Compare MVMA, 17 F.3d at 531 (“Even when the meaning of	1
language seems apparent, it must be remembered that we are attempting to ascertain	2
Congress’ purpose; where ambiguity resides in a statute, legislative history and other	3
tools of interpretation may be employed to determine legislative purpose more	4
perfectly.”), with State v. Smith, 2004-NMSC-032, ¶¶ 10-11, 136 N.M. 372, 98 P.3d	5
1022 (applying the rules of statutory construction to determine legislative intent	6
when the language of a statute is ambiguous).	7
{35} 	The statutory language relied on by Auto Dealers here allows New Mexico to	8
“adopt and enforce” emission standards “identical to the California standards for	9
which a waiver has been granted.” See 42 U.S.C. § 7507(1). Although this language	10
plainly makes the EPA’s grant of a waiver to California a precondition to some type	11
of action by a state concerning its regulations, it is less than clear whether that action	12
is the adoption or the enforcement of the California standards. Auto Dealers focus	13
on the grant of the waiver preceding the adoption of the regulations, claiming that	14
the statutory language prohibits New Mexico from taking any action to adopt	15
regulations until the EPA actually grants California a waiver.	16
{36} 	In examining the language of the statutory section at issue here, we note that	17
the statute’s grant to the states of authority “to adopt and enforce” emission standards	18
identical to California’s standards suggests that Congress is thinking about adoption	19
or promulgation of regulations and enforcement of those regulations separately,	20

18
creating uncertainty about whether Congress intends that the EPA waiver be a	1
precondition to both the adoption and enforcement of state regulations, or a	2
precondition only to the enforcement of the state regulations. In its opinion in	3
MVMA, the federal Court of Appeals for the Second Circuit, finding this provision	4
ambiguous, addressed this very question. 17 F.3d at 531. In MVMA, the federal court	5
noted that Congress set a common deadline in Subsection (2) for both California	6
regulations and state regulations adopting the California standards. See id. at 525;	7
42 U.S.C. § 7507(2). The Second Circuit concluded that this deadline is designed to	8
ensure that automobile manufacturers have a two-year period to prepare in advance	9
of the model year regulated, both in California and in other states that adopt	10
California’s regulations. Id. at 533-34. The Second Circuit noted that a common	11
sense reading of 42 U.S.C. § 7507 as a whole allows states to adopt the California	12
regulations in advance of EPA approval in order to be able to meet this two-year	13
requirement when EPA grants the California waiver. So long as action to enforce the	14
regulations is not taken until EPA grants California a waiver, and two years remain	15
before the first model year covered, the court finds that the purpose of this section is	16
satisfied. Id. Finally, the court notes that, just as the California regulations are	17
promulgated before being submitted to the EPA for a waiver, other state regulations	18
must be promulgated and ready to go into effect when the waiver is granted in order	19
to meet the requirement of Subsection (2) that the regulations be adopted two years	20

19
prior to the first model year addressed. Id. The Board’s regulations, beginning with	1
model year 2027, satisfy this requirement.	2
{37} 	In an unpublished decision, the United States District Court for the District of	3
Massachusetts agreed with the Second Circuit’s conclusion in MVMA, pointing out	4
that requiring states to wait to adopt California’s regulations until the EPA granted	5
a waiver “seem[s] likely to lead to utter chaos” by precluding other states from	6
implementing California standards in the same model year as California. Am. Auto.	7
Mfrs. Ass’n v. Greenbaum, No. 93-10799-MA, slip op. at *8 (D. Mass. Oct. 27,	8
1993), aff’d sub nom. Am. Auto. Mfrs. Ass’n v. Comm’r, Mass. Dep’t of Env’t Prot.,	9
31 F.3d 18 (1st Cir. 1994). By adopting, without enforcing, standards identical to	10
California’s before the EPA issues the California waiver, a state puts manufacturers	11
on notice that it intends to take the same path as California. MVMA, 17 F.3d at 534.	12
{38} 	We agree with the approaches taken by the Second Circuit and the District of	13
Massachusetts and hold that it was permissible for the Boards to adopt standards	14
identical to California’s prior to the EPA’s granting a waiver, “so long as the [state]	15
ma[de] no attempt to enforce the plan prior to the time when the waiver [was]	16
actually obtained.” See id.	17

20
III. 	The Board Did Not Act Arbitrarily, Capriciously, or Without Substantial	1
Evidence 	in 	Weighing 	the 	Technical 	Practicability 	and 	Economic	2
Reasonableness of the ZEV Standards	3
{39} 	Auto Dealers challenge as arbitrary and capricious and without support in the	4
record the Boards’ finding that the California ZEV mandate is “both technically	5
practicable and economically reasonable in the methods it employs to reduce air	6
contaminants from the sources involved.”	7
A. 	Standard of Review	8
{40} 	“When reviewing findings of fact made by an administrative agency we apply	9
a whole record standard of review.” Fitzhugh v. N.M. Dep’t of Lab., 1996-NMSC-	10
044, ¶ 23, 122 N.M. 173, 922 P.2d 555. “In applying whole record review, this Court	11
reviews both favorable and unfavorable evidence to determine whether there is	12
evidence that a reasonable mind could accept as adequate to support the conclusions	13
reached by the fact[-]finder.” Ruiz v. Los Lunas Pub. Schs., 2013-NMCA-085, ¶ 5,	14
308 P.3d 983 (internal quotation marks and citation omitted). We are cautioned by	15
our Supreme Court, however, that “[w]hole record review is not an excuse for an	16
appellate court to reweigh the evidence and replace the fact[-]finder’s conclusions	17
with its own.” Herman v. Miners’ Hosp., 1991-NMSC-021, ¶ 10, 111 N.M. 550, 807	18
P.2d 	734. 	If 	there 	is 	substantial 	evidence 	to 	support 	an 	agency, 	board, 	or	19
commission’s findings of fact, we affirm those findings, rejecting them “only if	20
conflicting evidence renders incredible the evidence in support of the decision.”	21

21
Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Reg. Comm’n, 2010-	1
NMSC-013, ¶ 89, 148 N.M. 21, 229 P.3d 494 (internal quotation marks and citation	2
omitted).	3
{41} 	We will also set aside a regulation if we find that the agency or board has	4
acted arbitrarily and capriciously in adopting the regulation. “We define ‘arbitrary’	5
and ‘capricious’ acts as those that may be considered [willful] and unreasonable,	6
without consideration, and in disregard of the facts and circumstances.” Wilcox v.	7
N.M. Bd. of Acupuncture & Oriental Med., 2012-NMCA-106, ¶ 7, 288 P.3d 902	8
(alteration, internal quotation marks, and citation omitted).	9
B. 	The 	Governing 	Law 	on 	“Technical 	Practicability 	and 	Economic	10
Reasonableness”	11
{42} 	The Boards are authorized by our Legislature to adopt regulations for the	12
purpose of “prevent[ing] or abat[ing] air pollution.” See § 74-2-5(A). In making its	13
rules, the Boards are further directed by the AQCA as follows:	14
F. In making its rules, the [EIB] or the [AQCB] shall give weight it	15
deems appropriate to all facts and circumstances, including:	16
(1) 	character and degree of injury to or interference with	17
health, welfare, visibility and property;	18
(2) 	the public interest, including the social and economic	19
value of the sources and subjects of air contaminants; and	20
(3) 	technical practicability and economic reasonableness of	21
reducing or eliminating air contaminants from the sources involved and	22
previous experience with equipment and methods available to control	23
the air contaminants involved.	24

22
See § 74-2-5(F)(1)-(3).	1
C. 	The Evidence in the Record Weighed by the Boards to Determine the	2
Technical Practicability and Economic Reasonableness of the ZEV	3
Standards	4
{43} 	Auto Dealers challenge the findings of the Boards that the regulations as	5
amended by the Boards are “technical[ly] practicable and economically reasonable”	6
under the third paragraph of Section 74-2-5(F). Auto Dealers claim that the Boards	7
improperly relied on “unsupported assumptions” and “on representations that were	8
not New Mexico-specific and did not directly relate to the ZEV mandate” in finding	9
the ZEV standards technically practicable and economically reasonable.5F
6
10
{44} 	We understand Auto Dealers to argue that it was arbitrary and capricious for	11
the Boards to afford greater weight to the evidence concerning the anticipated	12
direction of the automobile industry, advances underway in ZEV technology, the	13
anticipated reduction in purchase price of ZEVs, and the charging stations and other	14
infrastructure under construction in New Mexico, and less weight to Auto Dealers’	15
evidence based on their direct experience “on the ground” in New Mexico involving	16
6 Auto Dealers begin their argument by contending that the process was
“rushed,” 	but 	concede 	that 	the 	Boards 	complied 	with 	all 	notice 	or 	timing
requirements applicable to the rulemaking process. Because compliance with the
notice requirements set by law is adequate, and Auto Dealers offer no argument to
the contrary, we do not address this contention.

23
the difficulty of selling electric vehicles to New Mexico consumers and the	1
differences in geography, climate and population from California.	2
{45} 	Given our focus is on the Boards’ statutory authority to “give [the] weight it	3
deems appropriate to all facts and circumstances,” § 74-2-5(F), and on the evidence	4
supporting the Boards’ decision, as is required by our standard of review, we are not	5
persuaded the Boards’ finding that the ZEV mandates are technically practicable and	6
economically reasonable for New Mexico is arbitrary, capricious, or unsupported by	7
the evidence. See Wilcox, 2012-NMCA-106, ¶ 7 (“[T]he question is not whether	8
substantial evidence exists to support the opposite result, but rather whether such	9
evidence supports the result reached.” (alteration, internal quotation marks and	10
citation omitted)). We explain.	11
{46} 	Auto Dealers claim that ZEVs are not affordable for New Mexicans, pointing	12
to the testimony of Auto Dealers’ representatives about low demand for ZEVs in	13
New Mexico during the years preceding the 2023 public hearing, the higher price of	14
ZEVs during those years compared to gasoline automobiles, and New Mexico’s	15
market for ZEVs being skewed to high-income New Mexicans. The record,	16
however, also includes testimony of officials from the New Mexico Environment	17
Department reporting that vehicle manufacturers have invested billions of dollars	18
aimed at reducing the price of ZEVs by the 2027 model year, when the New Mexico	19
rules would go into effect, and ZEVs “will be able to be available to New Mexicans	20

24
at an affordable price.” Climate Advocates, one of the intervenors supporting the	1
regulations, presented data showing that “new [Z]EVs are expected to be about	2
$5,400 cheaper than new internal combustion engine vehicles by [model year]	3
2027.” 	Climate 	Advocates 	also 	offered 	evidence 	that 	there 	was 	currently	4
“exponential growth in the sale of [Z]EVs” nationally, and that sales in New Mexico	5
were growing, with 2023 sales stronger than previous model years. A manufacturer	6
of electric vans and pickup trucks testified that both the demand for and availability	7
of ZEVs was growing well ahead of schedule in California and that early adoption	8
of 	the 	ACC 	II 	standards 	by 	New 	Mexico 	was 	necessary 	to 	allow 	vehicle	9
manufacturers and related industries a reasonable timeline to address a market that	10
was undergoing a transformation. There was also evidence that if the Boards adopted	11
the new regulations, the increased availability of new ZEVs would help bring down	12
prices by creating a secondary market for used ZEVs, offering a less expensive	13
option for New Mexico consumers.	14
{47} 	Auto Dealers also claim on appeal that the Boards erred by wrongly	15
“assum[ing] that there would be tax incentives to make [Z]EVs more affordable.”	16
Auto Dealers’ argument overlooks that the EIB’s finding on the affordability of	17
ZEVs in New Mexico states that it did not rely on tax incentives: “The estimated	18
cost savings for individual [Z]EV ownership do not include the impact of potential	19

25
tax rebates such as the current $7,500 federal rebate provided by the Inflation	1
Reduction Act . . . and any future state legislatively funded [Z]EV incentives.”	2
{48} 	As to whether New Mexico could build the charging stations and other	3
technological infrastructure to support the ZEV mandate and whether New Mexicans	4
could afford home chargers—two technologies that witnesses for Auto Dealers	5
testified were not available in New Mexico and could not be implemented by the	6
2027 model year—the evidence showed that ZEV drivers with a short commute	7
could recharge at home with a normal 120-volt outlet; that residents with longer	8
commutes could purchase a level two charger for $138, requiring a 240-volt outlet	9
(washing machine outlets), rather than spending the $4,000 Auto Dealers claimed	10
would be required for home charging; and that charging stations were already	11
available in Lordsburg, Socorro, Farmington, and Clovis, and an additional forty-	12
two locations had been funded and were under construction with a completion date	13
of 2024.	14
{49} 	In its final order,6F
7 the EIB stated that it gave little weight to Auto Dealers’	15
assertion that local demand and New Mexico’s lower annual income compared to	16
California generally would not support the adoption of the ACC II ZEV mandate,	17
finding that “a typical model year 2027 [ZEV] will pay back the added costs in under	18
7 We quote the EIB’s final order. Although the AQCB final order reflects
reliance on the data and findings described above, it does not include the quoted
language.

26
[five] years and deliver over $7,000 in savings for a car and $10,000 for a truck over	1
the vehicle’s life; while a typical model year 2035 [Z]EV will pay back smaller	2
added costs in just over [one] year with lifetime savings over $13,000.” The EIB	3
reasoned that “the projected reduced cost of ownership for [ZEV]s of all types will	4
provide significant economic benefits to New Mexico businesses and individual	5
citizens.” Further, the EIB’s findings and conclusions expressly acknowledge Auto	6
Dealers’ testimony concerning what its members saw as potential economic harm to	7
dealerships in the state from low demand for ZEVs, unaffordable prices, and lack of	8
necessary infrastructure. However, the EIB noted that it did not find Auto Dealers’	9
testimony based on the experience of their members in the past persuasive: “[M]any	10
of the challenges [Auto Dealers] face are the result of a global shift to electrified	11
transportation in general, and will not result specifically from the implementation of	12
ACC II” and their concerns are mitigated by the regulation’s delay in adopting the	13
ACC II ZEV standards until model year 2027. Finally, the Boards determined that	14
ACC II standards are “both technically practicable and economically reasonable in	15
the methods [the regulations] employ[] to reduce air contaminants from the sources	16
involved.”	17
{50} 	In reviewing the whole record, we are not persuaded that the Boards acted	18
without substantial evidence in the record, that the conflicting evidence in the record	19
renders the evidence that supports the Boards’ decision not credible, or that the	20

27
Boards’ decision is arbitrary or capricious. See Albuquerque Bernalillo Cnty. Water	1
Util. Auth., 2010-NMSC-013, ¶ 89; Wilcox, 2012-NMCA-106, ¶ 7.	2
{51} 	The findings show that the Boards did not disregard Auto Dealers’ contrary	3
evidence; they simply weighed more heavily both the contrary technical evidence	4
and the evidence concerning the benefits to public health and the economy from	5
adopting ACC II’s ZEV standards. We will not interfere with the weight the Boards	6
decided to give Auto Dealers’ concerns regarding technical practicability and	7
economic reasonableness, where the Boards reasonably considered all of the facts	8
and circumstances. See § 74-2-5(F)(3) (stating that each Board “shall give weight it	9
deems appropriate to all facts and circumstances, including: . . . (3) technical	10
practicability 	and 	economic 	reasonableness 	of 	reducing 	or 	eliminating 	air	11
contaminants from the sources involved”). In short, we find the Boards’ decision	12
that California’s ACC II ZEV standards for model years 2027 through 2032 is a	13
“technically practicable and economically reasonable” choice for New Mexico is	14
supported by substantial evidence, and is not arbitrary or capricious. We remind	15
Auto Dealers that “[w]here there is room for two opinions, the [Boards’] action is	16
not arbitrary and capricious even though one may believe an erroneous conclusion	17
has been reached.” See Tenneco Oil Co. v. N.M. Water Quality Comm’n, 1987-	18
NMCA-153, ¶ 15, 107 N.M. 469, 760 P.2d 161 (alteration, internal quotation marks,	19
and citation omitted), superseded by statute on other grounds as stated in N.M.	20

28
Mining Ass’n v. N.M. Water Quality Control Comm’n, 2007-NMCA-010, ¶ 19, 141	1
N.M. 41, 150 P.3d 991.	2
CONCLUSION	3
{52} 	For the reasons stated above, we affirm.	4
{53} 	IT IS SO ORDERED.	5
_________________________	6
JANE B. YOHALEM, Judge	7
WE CONCUR:	8
_____________________________	9
JENNIFER L. ATTREP, Judge	10
_____________________________	11
GERALD E. BACA, Judge	12