California Dump Truck Owners Ass'n v. Nichols

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 13-15175

CALIFORNIA DUMP TRUCK OWNERS

ASSOCIATION,

D.C. No.

Plaintiff-Appellant,

2:11-cv-00384-

MCE-GGH

v.

OPINION

MARY D. NICHOLS, Chairperson of

the California Air Resources Board;

JAMES GOLDSTENE, Executive

Officer of the California Air

Resources Board,

Defendants-Appellees,

NATURAL RESOURCES DEFENSE

COUNCIL, INC.,

Intervenor-Defendant–Appellee.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Chief District Judge, Presiding

2 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

Submitted February 9, 2015 ∗

San Francisco, California

Filed March 3, 2015

Before: John T. Noonan, Senior Circuit Judge, Barry G.

Silverman, Circuit Judge, and Paul C. Huck, Senior District

Judge. **

Opinion by Judge Huck

SUMMARY ***

Environmental Law

The panel affirmed the dismissal for lack of subject

matter jurisdiction of a federal preemption challenge to a

California environmental regulation addressing diesel

trucks.

The panel affirmed the district court’s holding that the

Environmental Protection Agency’s approval of the

∗

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Paul C. Huck, United States District Judge for the

Southern District of Florida, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 3

regulation as part of California’s state implementation plan

divested the district court of jurisdiction under § 307(b)(1)

of the Clean Air Act. The panel concluded that the suit, as

a practical matter, challenged the state implementation plan

itself. Because the court of appeals has exclusive

jurisdiction over such challenges pursuant to § 307(b)(1),

the district court lacked jurisdiction.

COUNSEL

Patrick J. Whalen, Law Offices of Brooks Ellison,

Sacramento, California, for Plaintiff-Appellant.

Nicholas Stern, Deputy Attorney General for the State of

California, Sacramento, California, for Defendants-

Appellees.

Melissa Lin Perrella, David Pettit, and Morgan Wyenn,

Natural Resources Defense Council, Santa Monica,

California, for Intervenor-Defendant–Appellee.

OPINION

HUCK, Senior District Judge

The California Dump Truck Owners Association

(Truck Association) appeals the dismissal of its federal

preemption challenge to a California environmental

regulation. 1 At issue is whether the Environmental

1

The Truck Association is a trade association representing construction

trucking companies operating in California.

4 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

Protection Agency’s (EPA) approval of the regulation as

part of California’s state implementation plan (SIP)

divested the district court of subject matter jurisdiction

under § 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C.

§ 7607(b)(1). That section vests federal circuit courts of

appeals with exclusive jurisdiction over petitions

challenging the EPA’s approval of a SIP. The Truck

Association’s suit, as a practical matter, challenges the SIP

itself, and this Court has exclusive jurisdiction over such

challenges pursuant to § 307(b)(1). Accordingly, we affirm

the district court’s dismissal for lack of subject matter

jurisdiction. 2

I. Background

The CAA creates a partnership between the federal

government and the states to combat air pollution. Natural

Res. Def. Council, Inc. v. U.S. Dep’t of Transp., 770 F.3d

1260, 1264 (9th Cir. 2014). Under the CAA, the EPA must

prescribe national ambient air quality standards (NAAQS)

for certain air pollutants, and each state is responsible for

implementing those standards within its borders. 42 U.S.C.

§§ 7409–10. Specifically, each state must adopt, and

submit for the EPA’s approval, a SIP that provides for the

“implementation, maintenance, and enforcement” of the

NAAQS. Id. § 7410(a)(1). While a state has considerable

discretion in formulating its SIP, the SIP must include

“enforceable emission limitations” and control measures

and “a program to provide for the enforcement” of such

2

The district court also dismissed the Truck Association’s complaint

for the alternative reason that the EPA is a necessary and indispensable

party under Federal Rule of Civil Procedure 19. However, because we

have determined that the district court properly dismissed the complaint

for lack of subject matter jurisdiction, we need not, and, therefore, do

not reach this alternative basis for dismissal.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 5

measures. Id. § 7410(a)(2)(A), (C). It must further provide

“necessary assurances” that the state has “adequate

personnel, funding, and authority” to carry out the SIP, and

is not prohibited from doing so by “any provision of

Federal or State law.” Id. § 7410(a)(2)(E). Once approved

by the EPA, a SIP becomes federal law and must be carried

out by the state. Safe Air for Everyone v. EPA, 488 F.3d

1088, 1091 (9th Cir. 2007); Bayview Hunters Point Cmty.

Advocates v. Metro. Transp. Comm’n, 366 F.3d 692, 695

(9th Cir. 2004). A state’s SIP evolves as the state proposes,

and the EPA approves, revisions to account for new

NAAQS and emissions reduction technologies. 42 U.S.C.

§ 7410(a)(2)(H). Approved SIPs may be enforced “by

either the State, the EPA, or via citizen suits.” Bayview,

366 F.3d at 695.

In 2008, the California Air Resources Board (CARB)

adopted the Truck and Bus Regulation (Regulation), Cal.

Code Regs. tit. 13, § 2025, for incorporation into

California’s SIP. 3 The Regulation helps California meet

the EPA’s NAAQS for fine particulate matter (PM) and

ozone. Broadly speaking, it requires heavy-duty diesel

trucks, whose emissions contribute significantly to PM and

ozone pollution, to be upgraded with pollution filters and

lower-emission engines. The Regulation took effect on

January 1, 2012.

In April 2011, the Truck Association filed an amended

complaint in district court to enjoin enforcement of the

Regulation. It claimed that, under the Supremacy Clause of

3

The full title of the Truck and Bus Regulation is a “Regulation to

Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and

Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled

Vehicles.” Cal. Code Regs. tit. 13, § 2025.

6 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

the United States Constitution, the Regulation was

preempted by the Federal Aviation Administration

Authorization Act (FAAAA), which prohibits states from

enacting regulations “related to a price, route, or service of

any motor carrier . . . with respect to the transportation of

property.” 49 U.S.C. § 14501(c)(1). The Truck

Association alleged that its motor carrier members would

have to increase prices and alter their routes and services to

offset the costs of complying with the Regulation. The

Truck Association sought a declaration that the FAAAA

preempted the Regulation and an injunction against its

enforcement by CARB. The Natural Resources Defense

Council, Inc. (NRDC) intervened on CARB’s behalf.

In November 2011, the Truck Association filed a

motion for summary judgment as well as a motion for

preliminary injunction to enjoin enforcement of the

Regulation until dispositive motions could be decided. The

following month, the NRDC filed a cross-motion for

summary judgment. The district court denied the Truck

Association’s motion for preliminary injunction and took

the motions for summary judgment under submission.

Throughout this time, the Regulation had progressed

through the EPA’s SIP approval process. In May 2011, a

month after the Truck Association filed its amended

complaint, CARB submitted the Regulation to the EPA. 4

In July 2011, the EPA issued a notice of proposed

rulemaking announcing its intention to approve the

Regulation. Proposed Rule, Approval and Promulgation of

Implementation Plans, 76 Fed. Reg. 40652 (proposed July

11, 2011) (to be codified at 40 C.F.R. pt. 52). In the notice,

4

The Regulation as submitted to the EPA included certain amendments

that were adopted by CARB in 2011.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 7

the EPA concluded that the Regulation complied with the

CAA. In particular, the EPA noted that CARB had

authority under California law to implement the

Regulation, and that the EPA knew of “no obstacle under

Federal or State law” to its implementation. Id. at 40658.

The EPA further found that CARB had adequate personnel

and funding to enforce the Regulation and that CARB’s

proposed enforcement mechanisms were likely to be

effective. Id. at 40659. The EPA provided thirty days for

the public to comment on its proposed approval of the

Regulation. Neither the Truck Association nor any other

individual or group commented on the proposed rule. Final

Rule, Approval and Promulgation of Implementations

Plans, 77 Fed. Reg. 20308, 20312 (Apr. 4, 2012) (to be

codified at 40 C.F.R. pt. 52). On April 4, 2012, the EPA

took final action approving the Regulation as part of

California’s SIP. In its notice of this action, the EPA

reaffirmed its prior conclusion that the Regulation

complied with the substantive and procedural requirements

of the CAA. Id. at 20311, 20313. The final rule took effect

on May 4, 2012, and the Regulation was incorporated into

California’s SIP in the Code of Federal Regulations. 40

C.F.R. § 52.220(410) (incorporating by reference the

Regulation, Cal. Code Regs. tit. 13, § 2025).

On May 24, 2012, while the parties’ summary judgment

motions remained pending, the NRDC filed a notice of

supplemental authority informing the district court of the

EPA’s approval of the Regulation as part of California’s

SIP. At the court’s request, the parties submitted briefing

on whether the EPA’s action affected the posture of the

case. On December 19, 2012, the court dismissed the suit,

finding that it no longer had subject matter jurisdiction

under § 307(b)(1) of the CAA. It further found that, even if

it retained jurisdiction, dismissal was proper under Federal

8 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

Rule of Civil Procedure 19 because the EPA was a

necessary and indispensable party. The Truck Association

appealed both grounds for the district court’s dismissal.

Shortly after filing this appeal, the Truck Association

separately filed a petition in this Court under § 307(b)(1)

and Rule 15(a) of the Federal Rules of Appellate

Procedure, seeking review of the EPA’s approval of the

Regulation. Petition for Review, Cal. Constr. Trucking

Ass’n v. EPA, No. 13-70562 (9th Cir. 2013). We dismissed

the petition as untimely because it was not filed within

sixty days of the EPA’s notice of final rule, as required by

§ 307(b)(1). Order, Cal. Constr. Trucking Ass’n, No. 13-

70562. The Truck Association also filed a petition with the

EPA requesting reconsideration of its approval of the

Regulation.

II. Analysis

We review a district court’s dismissal of a complaint

for lack of subject matter jurisdiction de novo. Carolina

Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082, 1086

(9th Cir. 2014).

Section 307(b)(1) of the CAA states:

A petition for review of the [EPA]

Administrator’s action in approving or

promulgating any implementation plan . . .

or any other final action of the

Administrator under this chapter . . . which

is locally or regionally applicable may be

filed only in the United States Court of

Appeals for the appropriate circuit.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 9

42 U.S.C. § 7607(b)(1) (emphasis added). As a result,

“invalidation of an EPA-approved SIP may only occur in

the federal appellate courts on direct appeal from the

Administrator’s decision.” United States v. Ford Motor

Co., 814 F.2d 1099, 1103 (6th Cir. 1987); see also Sierra

Club v. Ind.-Ky. Elec. Corp., 716 F.2d 1145, 1152 (7th Cir.

1983) (“Once a plan is adopted by the state and it

withstands any subsequent procedural challenge, then

§ 7607(b)(1) provides that invalidation may occur only in

the federal appellate courts.”).

The Truck Association, however, argues that it is not

challenging the SIP, or the EPA’s approval thereof. It

claims that its suit, which it filed before the EPA’s final

action approving the Regulation as part of California’s SIP,

challenges only the state Regulation, which is distinct from

the federal SIP. The Truck Association contends that

invalidating the Regulation would render it unenforceable

by CARB, but “would not prohibit enforcement of the SIP”

by the EPA and private citizens. Truck Association

members would still purportedly benefit from the

Regulation’s invalidation because of the “enormous

difference in the enforcement mechanisms between the

state regulation and the federalized SIP.” Specifically, the

Truck Association points out that under the CAA, citizen

suits may not be commenced without first providing the

alleged violator with sixty days’ notice. 5 42 U.S.C.

5

The Truck Association does not discuss whether a similar grace

period exists before the EPA can take enforcement action. However, it

appears that the EPA must wait at least thirty days before taking action

to enforce a SIP. See Luminant Generation Co., LLC v. EPA, 757 F.3d

439, 442 (5th Cir. 2014) (“After giving notice and waiting thirty days,

the EPA may ‘issue an order,’ ‘issue an administrative penalty’ after a

formal administrative hearing, or ‘bring a civil action.’” (quoting 42

U.S.C. § 7413 (a)(1))).

10 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

§ 7604(b)(1). By contrast, no such limitation is placed on

CARB’s enforcement of the Regulation. Under

California’s Health and Safety Code, violators are liable for

civil penalties of up to $1,000 per day as well as criminal

sanctions, with each day of violation constituting a separate

offense. Cal. Health & Safety Code §§ 39674, 42400.

Were the Regulation nullified, violators would have sixty

days to take corrective action, saving them from potentially

$60,000 in penalties and sixty criminal offenses. And,

“[a]s a practical matter,” the Truck Association contends,

most of its members would not have to comply with the

SIP for “months or years” until their noncompliance was

discovered by someone willing to pursue the “relatively

cumbersome” process of bringing a citizen suit. The Truck

Association concludes that, because it is challenging only

the Regulation and not the SIP, § 307(b)(1) does not

apply. 6 For the reasons discussed herein, we disagree.

6

In its opening brief, the Truck Association argues at length that an

approved SIP does not have the “force and effect of federal law,” and

instead may simply be enforced by the EPA in federal court. This

argument, for which the Truck Association cites no case law, is based

on the fact that the CAA provision providing for federal enforcement

does not contain the language “force and effect of federal law.” 42

U.S.C. § 7413. This is insufficient to disturb our precedent, which has

consistently recognized that an approved SIP is federal law. See, e.g.,

Safe Air, 488 F.3d at 1091; Natural Res. Def. Council, Inc. v. S. Coast

Air Quality Mgmt. Dist., 651 F.3d 1066, 1069 (9th Cir. 2011); El

Comité Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062,

1066 (9th Cir. 2008). We are joined in this view by other circuits. See,

e.g., GenOn REMA, LLC v. EPA, 722 F.3d 513, 516 (3rd Cir. 2013)

(“If the EPA approves the SIPs, they become enforceable as federal

law.”); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1159 (10th Cir.

2012) (“Approved SIPs are enforceable as federal law . . . .”); Her

Majesty the Queen in Right of the Province of Ont. v. City of Detroit,

874 F.2d 332, 335 (6th Cir. 1989) (“If a state implementation plan

(‘SIP’) is approved by the EPA, its requirements become federal law

and are fully enforceable in federal court.”). Furthermore, the Truck

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 11

A. Scope of § 307(b)(1)

The Truck Association relies heavily on the fact that its

complaint, on its face, does not challenge an EPA action or

California’s SIP. However, jurisdiction under § 307(b)(1)

is not established solely by the allegations on the face of a

complaint; instead, § 307(b)(1) “channels review of final

EPA action exclusively to the courts of appeals, regardless

of how the grounds for review are framed.” Virginia v.

United States, 74 F.3d 517, 523 (4th Cir. 1996) (emphasis

added). Thus, § 307(b)(1) has been applied to claims that

effectively, if not facially, challenged an EPA final action.

In Virginia v. United States, for example, the Fourth

Circuit held that § 307(b)(1) applied to Virginia’s claim

that provisions of the CAA were “unconstitutional on their

face.” Virginia, 74 F.3d at 522. After the EPA took final

action finding deficiencies in Virginia’s pollution

programs, Virginia filed suit in district court alleging that

the CAA sanctions that would be triggered by the EPA’s

actions were unconstitutional. Virginia sought an

injunction preventing the EPA from enforcing those

sanctions. The district court dismissed Virginia’s suit

under § 307(b)(1), and the Fourth Circuit affirmed. The

Fourth Circuit explained that “the practical objective of the

complaint [was] to nullify final actions of EPA,” and held

that Virginia could not “circumvent direct review in the

Association’s ultimate point appears to be that even after EPA

approval, there remains “a state regulation on the books that is subject

to preemption,” a point that Appellees do not contest, and that is not

relevant to the question of jurisdiction under § 307(b)(1).

12 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

circuit court” by “framing its complaint as a constitutional

challenge to the CAA.” Id. at 522–23 (emphasis added). 7

The Eighth Circuit reached a similar conclusion in

Missouri v. United States, 109 F.3d 440 (8th Cir. 1997).

There, Missouri challenged the constitutionality of the

CAA’s sanctions scheme after the EPA found Missouri to

be noncompliant with the CAA. The Eighth Circuit held

that § 307(b)(1) applied to Missouri’s suit, stating:

7

In its Reply brief, the Truck Association argues that Virginia’s

holding was subsequently limited in North Carolina ex rel. Cooper v.

Tennessee Valley Authority, 549 F. Supp. 2d 725 (W.D.N.C. 2008).

Apart from the fact that a district court cannot “limit” the holding of a

court of appeals decision, the Truck Association’s reliance on this case,

which ultimately favors Appellees, is misguided. North Carolina had

filed a public nuisance suit against the Tennessee Valley Authority

(TVA) based on emissions from TVA’s power plants located in

Tennessee, Alabama, and Kentucky. Id. at 727. North Carolina had

separately filed a petition with the EPA under the CAA seeking

emissions reductions from TVA’s power plants in thirteen states. The

district court found that the two actions could proceed simultaneously

because North Carolina’s public nuisance suit was brought on different

grounds than its EPA petition. Id. at 734. The court distinguished

Virginia, finding no indication that North Carolina’s “practical

objective” was to “‘nullify’ the EPA’s final action.” Id. Following a

bench trial, TVA was found liable and appealed. As noted in CARB’s

citation of supplemental authorities, the Fourth Circuit reversed the

district court’s judgment. Among other reasons, the court explained

that preemption considerations disfavored litigation such as North

Carolina’s suit, as it amounted to “‘nothing more than a collateral

attack’” on the system created by the CAA and “risk[ed] results that

lack both clarity and legitimacy.” North Carolina ex rel. Cooper v.

Tenn. Valley Auth., 615 F.3d 291, 301 (4th Cir. 2010) (quoting

Palumbo v. Waste Techs. Indus., 989 F.2d 156, 159 (4th Cir. 1993)).

Thus, not only does North Carolina not cabin Virginia, it in fact favors

Appellees by discouraging litigation that seeks to “scuttle the extensive

system of anti-pollution mandates that promote clean air in this

country.” Id. at 298.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 13

While it is true that Missouri’s complaint

questions the constitutionality of the overall

sanctions scheme of the CAA, this challenge

is not separate and apart from EPA

action. . . . Those sanctions flow directly

from EPA action, originating in EPA’s

declaring the St. Louis area an “ozone

nonattainment area.”

Id. at 442.

In New England Legal Foundation v. Costle, 666 F.2d

30 (2d Cir. 1981), the Second Circuit found § 307(b)(1) to

apply to a common law nuisance suit. The plaintiff had

sued a lighting company for burning high-sulfur oil,

conduct the EPA had approved as a variance to New

York’s SIP. Id. at 31–32 & n.1. The Second Circuit found

the nuisance claim was “in effect, an attack upon the

validity of the EPA-approved variance,” and held that “[a]ll

claims against the validity of performance standards

approved by final decision of the Administrator must be

addressed to the courts of appeals on direct appeal.” Id. at

33 (internal quotation marks and citation omitted).

Finally, in Benning v. Browner, No. Civ.A. 97-CV-

7058, 1998 WL 717436 (E.D. Pa. Sept. 24, 1998), the court

applied the reasoning of Virginia and Missouri to a suit

alleging that a regulation incorporated into Pennsylvania’s

SIP violated the Equal Protection Clause. The court found

the plaintiffs were “essentially challenging the

appropriateness of the EPA Administrator’s action in

approving a regulation they believe to be unconstitutional.”

Id. at *3. It concluded that the plaintiffs’ “practical

objective [was] to nullify the EPA’s final action,” and

dismissed the suit under § 307(b)(1).

14 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

These cases demonstrate that a claim need not be

framed as a challenge to the EPA for § 307(b)(1) to apply.

Instead, § 307(b)(1)’s scope extends to claims that, as a

practical matter, challenge an EPA final action, including

its approval of a SIP. 8 As explained below, we find that the

Truck Association’s suit, as a practical matter, challenges

the EPA’s approval of a provision of California’s SIP.

B. The Truck Association’s Suit

The Truck Association seeks to enjoin CARB from

enforcing the Regulation, which the Association alleges is

preempted by federal law. However, the EPA’s approval

of the Regulation made it part of California’s SIP, and the

SIP’s effectiveness depends largely on its enforcement by

the state. Enjoining enforcement of the Regulation by

CARB would effectively nullify that provision of

8

To some extent, this Court’s decision in Natural Resources Defense

Council, Inc. v. South Coast Air Quality Management District, 651

F.3d 1066 (9th Cir. 2011), also supports the proposition that

§ 307(b)(1) looks beyond the face of a complaint. There, the EPA had

approved the SIP for the South Coast Air Basin. The SIP included a

program that allowed new sources of pollution to obtain emissions

offset credits from the South Coast Air Quality Management District

(SCAQMD), which implemented the SIP. Id. at 1069. In approving

the SIP, the EPA had found that SCAQMD’s credits complied with the

CAA. Id. at 1070–71. Several years later, the NRDC filed suit in

district court alleging that the credits did not comply with the CAA.

The district court dismissed the claim under § 307(b)(1). Id. at 1069.

On appeal, the NRDC argued that it was “not challenging the EPA’s

approval of the SIP, but rather SCAQMD’s implementation of the

SIP.” Id. at 1071. We rejected that argument, explaining that “because

the EPA issued rules that not only approved the SIP but also indicated

that the credits . . . comply with [the CAA], the NRDC is effectively

seeking review of the EPA’s decision.” Id. Thus, SCAQMD also

favors applying § 307(b)(1) based on the practical objective of a claim.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 15

California’s SIP. Furthermore, in alleging that the

Regulation is preempted, the Truck Association is also

effectively challenging the EPA’s determination that

federal law does not prohibit the Regulation. Thus, while

the Truck Association had no “secret intent” of challenging

the EPA when it filed suit, and it does not now seek to

prohibit the EPA’s enforcement of the SIP, the practical,

and therefore legal, effect of the Truck Association’s suit is

to challenge both the EPA and the SIP.

1. Challenge to CARB’s Enforcement of the SIP

While the Truck Association asserts that “[t]he validity

of the SIP is not at issue,” its suit, if successful, would

effectively eviscerate the SIP by precluding its enforcement

by CARB. As we have previously observed, “[t]he [CAA]

places much of its enforcement burden on the states, which

are required to submit SIPs that show how states will attain

the standards for major air pollutants.” El Comité Para El

Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062,

1066 (9th Cir. 2008) (emphasis added); see also Safe Air,

488 F.3d at 1092 (“[T]he CAA establishes a system heavily

dependent upon state participation.”); Ford, 814 F.2d at

1102 (“[T]he Clean Air Act contemplates very significant

participation in air pollution control by state air pollution

control agencies . . . .”). Thus, a SIP must contain

“enforceable” emissions limitations and assurances that the

state has sufficient authority and resources to carry out the

SIP. 42 U.S.C. § 7410(a)(2)(A), (E).

Indeed, the EPA approved the Regulation in part

because it concluded that CARB could effectively enforce

it. The EPA stated:

16 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

CARB intends to conduct enforcement of

the . . . Regulation . . . similarly to

enforcement of CARB’s commercial vehicle

and school bus idling regulations. CARB’s

enforcement staff intends to use the

inspection and audit methods that they have

developed during the many years of

experience enforcing the Heavy-Duty

Vehicle Inspection Program (adopted into

law in 1988) and the Periodic Smoke

Inspection Program (adopted into law in

1990).

CARB indicates that enforcement

activities will include inspections at border

crossings, California Highway Patrol (CHP)

weigh stations, fleet facilities, and randomly

selected roadside locations and audits of

records. . . . These activities could result in

corrective actions and substantial civil

penalties for non-compliance with the

regulations. . . .

We recognize the general effectiveness

of CARB’s motor vehicle enforcement

program and expect CARB’s approach to

enforcement of the . . . [R]egulation[], as

described above, to be equally effective

....

76 Fed. Reg. 40659 (emphasis added). Clearly, the SIP’s

effectiveness in attaining the EPA’s NAAQS is directly tied

to its enforceability by CARB, and would be vitiated if

such enforcement were enjoined.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 17

Furthermore, the Truck Association’s assertion that it is

not challenging the SIP is belied by its acknowledgment

that the invalidation of the state Regulation that it desires

would make the SIP’s enforcement more difficult, and that

such circumstances would be beneficial to its members.

While touting the continued viability of the SIP via EPA

actions and citizen suits, the Truck Association readily

admits that such enforcement will be largely ineffective,

with SIP violations likely to go undetected for months if

not years. Thus, if successful, the Truck Association’s suit

would severely undermine the SIP’s ability to achieve

federal air quality standards. Because the Truck

Association’s practical objective is to dismantle the SIP’s

primary enforcement apparatus, its suit is subject to

§ 307(b)(1) and must be brought in this Court. 9

The Truck Association argues that there is some

precedent for a non-appellate court repealing a state

9

In addition to having the practical effect of nullifying the SIP, the

Truck Association’s suit arguably seeks to literally repeal a portion of

the SIP. California’s SIP, codified at 40 C.F.R. § 52.220, does not set

forth the requirements of the Regulation; instead, it incorporates the

Regulation “by reference.” Id. § 52.220(410). Thus, if the Regulation

were repealed, there would arguably be nothing for the SIP to

incorporate. Indeed, it could be persuasively argued that the repeal of a

state regulation necessarily repeals part of the corresponding SIP, as a

SIP is composed of state regulations. As explained by the EPA in its

notice of final rule:

[I]n reviewing SIP submissions, EPA’s role is to

approve State choices, provided that they meet the

criteria of the Clean Air Act. Accordingly, this

proposed action merely approves State law as

meeting Federal requirements and does not impose

additional requirements beyond those imposed by

State law.

77 Fed. Reg. at 20313.

18 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

regulation that is incorporated into a SIP. The Truck

Association points to Sierra Club v. Indiana-Kentucky

Electric Corp., 716 F.2d 1145 (7th Cir. 1983), where the

Seventh Circuit considered the enforceability of a SIP

provision whose underlying state regulation had been

invalidated in state court on state law procedural grounds.

Id. at 1146. An Indiana court had found the SIP provision

invalid because the “state officer who presided over the

hearing [on the regulation] had failed to submit written

findings to the Indiana Environmental Management

Board,” as required by Indiana law. Id. at 1147. The

Seventh Circuit held that, in light of the state court’s ruling,

the SIP provision was not enforceable, reasoning:

Because administrative actions taken

without substantial compliance with

applicable procedures are invalid, it is as if

Indiana never submitted [the state

regulation]. Since a valid [regulation] was

never submitted, EPA’s adoption of [the

regulation] cannot be given effect since EPA

approved a provision which was invalid

when submitted to the agency.

Id. at 1148.

Even if we were to agree with the Seventh Circuit that a

SIP provision may be invalidated in state court on state

procedural grounds, this would not help the Truck

Association, whose suit does not raise a state law

procedural challenge. And, as explained by the Seventh

Circuit, “[o]nce a plan is adopted by the state and it

withstands any subsequent procedural challenge, then

§ 7607(b)(1) [CAA § 307(b)(1)] provides that invalidation

may occur only in the federal appellate courts.” Id. at

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 19

1152. Thus, if anything, Sierra Club supports the

application of § 307(b)(1) to the Truck Association’s suit.

United States v. Ford Motor Co., 814 F.2d 1099 (6th

Cir. 1987), similarly acknowledged the very limited

circumstances in which a SIP may be invalidated by a state

court. There, the EPA had sued Ford in district court for

violations of Michigan’s SIP, and Ford subsequently filed

suit in Michigan state court to enjoin state environmental

agencies from enforcing the SIP. Ford and the state

agencies negotiated a consent judgment purporting to

vacate the SIP, and Ford sought to use the consent

judgment to defeat the EPA’s enforcement action. Id. at

1101. The Sixth Circuit held that the consent judgment did

not preclude EPA’s enforcement of the SIP because

“revisions of State Implementation Plans are ineffective

until approved by EPA,” and “invalidation of an EPA-

approved SIP may only occur in the federal appellate

courts” under § 307(b)(1). Id. at 1102–03. The Sixth

Circuit distinguished Sierra Club, noting that Ford’s

challenge to the SIP was not based on procedural grounds.

Id. at 1103.

The Sixth Circuit did not address whether the consent

judgment could preclude enforcement of the SIP by state

agencies. If it could, Ford would arguably support the

Truck Association’s assertion that a non-appellate court

may render a SIP unenforceable by the state. However, the

court in Ford was not confronted with this question. To the

extent that any inferences can be drawn from the opinion,

they would favor Appellees, as the Sixth Circuit stated,

“invalidation of a SIP on technical grounds by a state court

. . . . cannot be given effect.” Id. at 1103 (emphasis added).

Presumably, this admonition applied to both the EPA and

the state agencies. Thus, Sierra Club and Ford do not

20 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

detract from the analysis supporting this Court’s exclusive

jurisdiction over the Truck Association’s claim. 10

2. Challenge to the EPA’s Legal

Determination

It is also clear that jurisdiction for the Truck

Association’s claim exists exclusively under § 307(b)(1)

because the Truck Association’s preemption claim

effectively challenges the EPA’s legal determination that

federal law does not prohibit the Regulation. When the

EPA proposed approving the Regulation, it explicitly stated

that it knew of “no obstacle under Federal or State law in

CARB’s ability to implement” the Regulation. 76 Fed.

Reg. at 40658. The EPA reiterated this conclusion in its

final approval, finding that the state had provided adequate

assurances that it was not prohibited from carrying out the

Regulation by “any provision of Federal or State law.”

77 Fed. Reg. 20311, 20313. In alleging that the Regulation

violates the Supremacy Clause because it is preempted by

10

The parties cite New Mexico Environmental Improvement Division v.

Thomas, 789 F.2d 825 (10th Cir. 1986), for the proposition that

“[w]hen the approved SIP contains an element that is invalidated by

virtue of state law, adoption by the EPA is also invalidated.” Id. at 833.

This decision, however, is of limited help to either side. In New

Mexico, a state regulation approved into New Mexico’s SIP was

subsequently invalidated by New Mexico’s Supreme Court for

violating a state law prohibiting counties from requiring vehicle

registrations. Id. at 828 & n.1. The issue before the court was whether

the EPA reasonably concluded that New Mexico had failed to submit a

valid SIP. In its deferential agency review, the Tenth Circuit found that

the EPA acted reasonably, noting that Sierra Club lent support for the

EPA’s theory that when a state submits a SIP that is invalid under state

law, it “is as if the state had not submitted a SIP” at all.” Id. at 833.

The court had no occasion to consider whether New Mexico’s Supreme

Court had jurisdiction to invalidate the state regulation.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 21

the FAAAA, the Truck Association effectively challenges

the validity of the EPA’s determination. See New England

Legal Found., 666 F.2d at 33. Under § 307(b)(1), such a

challenge must be brought in this Court. See Virginia,

74 F.3d at 523 (explaining that appellate courts’ exclusive

jurisdiction extends to “‘legal issues pertaining to final

[actions]—whether or not those issues arise from the

statutes that authorized the agency action in the first

place’”) (alteration in original) (emphasis added) (quoting

Palumbo v. Waste Techs. Indus., 989 F.2d 156, 161 (4th

Cir.1993)). 11

In sum, the practical objective of the Truck

Association’s preemption suit is to nullify the SIP and

challenge the EPA’s legal determination regarding its

validity. Thus, it is the type of action to which § 307(b)(1)

applies. Although this case is somewhat unique, in that the

EPA approved the SIP after the Truck Association filed

suit, subsequent EPA action can divest a district court of

jurisdiction. See City of Seabrook v. Costle, 659 F.2d 1371,

1373 (5th Cir. 1981) (“Even if we assume . . . that the

district court had jurisdiction of plaintiffs’ claim . . . the

publication of the ‘final rule’ clearly left the district court

without jurisdiction of the claim [under § 307(b)(1)].”); see

also Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S.

Ct. 1204, 1210 (2012) (explaining that respondents’

Supremacy Clause challenges to state regulations were in a

“different posture” after federal agency approved the

11

Admittedly, it is not clear from the EPA’s public notices whether it

specifically considered preemption under the FAAAA. To the extent

that it did not, this is at least somewhat attributable to the Truck

Association’s failure to comment on the EPA’s proposed rule. In any

event, the Truck Association effectively challenges the EPA’s broader

conclusion that the Regulation complies with federal law.

22 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

regulations, potentially requiring respondents to instead

seek review of agency action). Furthermore, the Truck

Association provides no persuasive reason why § 307(b)(1)

cannot apply to a regulation that was adopted to be

incorporated into a state’s SIP, simply because suit was

filed prior to the EPA’s final action. Indeed, policy

considerations underlying the CAA mandate this precise

result.

C. Policy and Fairness Considerations

In establishing the CAA’s jurisdictional scheme,

“Congress wanted speedy review of EPA rules and final

actions in a single court,” thereby avoiding “duplicative or

piecemeal litigation, and the risk of contradictory

decisions.” Virginia, 74 F.3d at 525 (internal quotation

marks and citation omitted); see also Harrison v. PPG

Indus., Inc., 446 U.S. 578, 593 (1980) (“The most obvious

advantage of direct review by a court of appeals is the time

saved compared to review by a district court, followed by a

second review on appeal.”). Allowing the Truck

Association’s suit to proceed in district court would

undermine these policy objectives. The district court’s

decision on whether the Regulation is preempted would be

subject to appeal, during which time the enforceability of

the SIP would be in limbo. This would frustrate

Congress’s goal of having prompt and final review of

decisions regarding SIPs. Moreover, even if the Truck

Association successfully enjoined enforcement of the

Regulation by CARB, a separate suit would be required to

enjoin enforcement by the EPA and private citizens,

potentially resulting in re-litigation of the same issues in

multiple courts, with the concomitant risk of conflicting

decisions. Indeed, the Truck Association admitted to the

district court that it “may challenge the approval of the SIP

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 23

. . . in a different forum . . . on similar or different

grounds,” and it subsequently did bring such other

challenges. 12 Applying § 307(b)(1) to the Truck

Association’s suit avoids these outcomes and furthers the

goals underlying the CAA’s judicial review system.

The Supreme Court’s analysis in Douglas v.

Independent Living Center of Southern California, Inc.,

132 S. Ct. 1204 (2012) supports this conclusion. In

Douglas, Medicaid providers and beneficiaries brought suit

under the Supremacy Clause alleging that California’s

Medicaid statutes conflicted with, and were preempted by,

federal Medicaid law. After the Supreme Court granted

certiorari, the federal agency responsible for administering

the Medicaid program approved the state statutes, having

determined that they complied with federal law. Id. at

1208–09. The Supreme Court found that as a result of the

agency’s approval, the case was “now in a different

posture” and “may require respondents now to proceed by

seeking review of the agency determination under the

Administrative Procedure Act rather than in an action

against California under the Supremacy Clause.” Id. at

1210 (citation omitted). Among the Court’s considerations

was that:

[T]o allow a Supremacy Clause action to

proceed once the agency has reached a

12

After the district court dismissed its suit, the Truck Association filed

a petition in this Court under § 307(b)(1), seeking review of the EPA’s

approval of the Regulation. Although we dismissed that suit as

untimely, thereby mitigating the risk of conflicting decisions, allowing

the Truck Association’s district court suit to proceed would create

precedent for such piecemeal litigation.

24 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

decision threatens potential inconsistency or

confusion.

...

. . . Indeed, to permit a difference in result

[depending upon whether the case proceeds

in a Supremacy Clause action rather than

under the APA] would subject the States to

conflicting interpretations of federal law by

several different courts (and the agency),

thereby threatening to defeat the uniformity

that Congress intended by centralizing

administration of the federal program in the

agency and to make superfluous or to

undermine traditional APA review. If the

two kinds of actions should reach the same

result, the Supremacy Clause challenge is at

best redundant. And to permit the

continuation of the action in that form would

seem to be inefficient, for the agency is not a

participant in the pending litigation below,

litigation that will decide whether the

agency-approved state rates violate the

federal statute.

Id. at 1210–11 (citation omitted). Similarly, here, the

EPA’s approval of the Regulation has changed the posture

of the case, such that a different avenue of judicial review

is appropriate to avoid potentially conflicting decisions on

the underlying question of whether the Regulation is

preempted by the FAAAA. Moreover, proceeding under

§ 307(b)(1) is preferable because the EPA would be a party

to litigation that would decide whether a regulation it

approved violates federal law.

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 25

The Truck Association correctly notes that the instant

case differs from Douglas in that the EPA does not

administer the FAAAA. Thus, the EPA’s determination

that the Regulation does not conflict with federal law may

not be the “kind of legal question that ordinarily calls for

APA review,” because it does not fall within the EPA’s

expertise. Douglas, 132 S. Ct. at 1210. Nevertheless, the

congressional interests in uniformity and finality discussed

in Douglas apply here with equal force, and are better

served by requiring challenges such as the Truck

Association’s to be heard in this Court.

Finally, the Truck Association argues that applying

§ 307(b)(1) to its suit would be unfair and leave it with no

forum in which to pursue its claim. The Truck Association

points out that when it filed suit, jurisdiction in this Court

was unavailable because the EPA had not taken final action

on the Regulation. Requiring the Truck Association to wait

for final action would mean that it could not enjoin the

Regulation from taking effect, thereby imposing heavy

costs on its members, as the EPA did not approve the

Regulation until several months after it became effective.

Furthermore, the Truck Association argues, dismissing its

suit on jurisdictional grounds would unfairly penalize it for

the district court’s delay in rendering a decision.

According to the Truck Association, had the court

adjudicated the case promptly, “judgment likely would

have predated the EPA action.” Lastly, though not raised

by the Truck Association, the district court’s dismissal of

the Association’s suit eight months after the EPA’s final

action arguably prejudiced the Association because by then,

the sixty-day window in which it could seek review in this

Court under § 307(b)(1) had closed, leaving the

Association with no court in which to bring its claim.

26 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

These arguments, though somewhat sympathetic, are

ultimately unpersuasive. The Truck Association is

mistaken that § 307(b)(1)’s application would deny it a

forum in which to enjoin the Regulation’s implementation.

The Truck Association properly sought such relief in the

district court, and indeed that court considered and ruled

upon its motion for a preliminary injunction. The Truck

Association may be correct that it would not have been

subject to § 307(b)(1) had the district court reached an

earlier disposition on its preemption claim. However,

nothing inhibited the Truck Association from timely

pursuing that claim in this Court after the EPA approved

the Regulation in April 2012. The fact that it did not, and

is now time-barred from doing so, is the Truck

Association’s own doing.

Moreover, any unfairness to the Truck Association is

further mitigated by the fact that it was on notice, from the

Regulation’s inception, that the Regulation was intended to

be incorporated into California’s SIP. When CARB first

proposed adopting the Regulation, it issued a public notice

explaining that “[t]he [CAA] requires U.S. EPA to establish

NAAQS for pollutants,” that “Federal law mandates the

development of State Implementation Plans documenting

the actions the state will take to attain the federal air quality

standards,” that CARB’s “SIP submittals to U.S. EPA . . .

adopted 2014 reduction commitments for both [ozone] and

PM[],” and that “the proposed regulation would provide the

necessary emissions reductions by the mandatory deadlines

for meeting the NAAQS for PM[] and ozone.” 13 After

13

James N. Goldstene, Cal. Air Res. Bd., Notice of Public Hearing to

Consider the Adoption of a Proposed Regulation to Reduce Emissions

from In-Use On-Road Diesel Vehicles, and Amendments to the

Regulations for In-Use Off Road Vehicles, Drayage Trucks,

Municipality and Utility Vehicles, Mobile Cargo Handling Equipment,

CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 27

CARB submitted the Regulation to the EPA, and several

months before it was to take effect, the EPA issued a public

notice proposing to approve the Regulation and inviting

comments on its proposal. Thus, from multiple sources, the

Truck Association was on notice that it could have

participated in the administrative approval process by

submitting comments to the EPA. However, it chose not to

do so. Under these circumstances, it cannot be said that the

Truck Association has been unfairly prejudiced.

III. Conclusion

For these reasons, we affirm the district court’s

dismissal for lack of subject matter jurisdiction under CAA

§ 307(b)(1).

AFFIRMED.

Portable Engines and Equipment, Heavy duty Engines and Vehicle

Exhaust Emissions Standards and Test Procedures and Commercial

Motor Vehicle Idling 3–5 (2008), available at www.arb.ca.gov/

regact/2008/truckbus08/tbnotice.pdf.