Petition for Writ of Certiorari — Jack Cody, Petitioner v. California Air Resources Board, et al.

Supreme Court briefNov 9, 2018

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------JACK CODY,

Petitioner,

STATE AIR RESOURCES BOARD et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Court Of Appeal Of The

State Of California, Third Appellate District

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------PAUL D. CULLEN, SR.

DANIEL E. COHEN

Counsel of Record

PAUL D. CULLEN, JR.

CHARLES R. STINSON

THE CULLEN

LAW FIRM, PLLC

1101 30th Street NW,

Suite 300

Washington, DC 20007

202-944-8600

dec@cullenlaw.com

BRIAN LEIGHTON

LAW OFFICES

755 N. Peach Avenue,

Suite G-10

Clovis, CA 93611

559-297-6190

Counsel for Petitioner

Jack Cody

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

“[T]he State courts . . . have a concurrent jurisdiction in all cases arising under the laws of the Union,

where it was not expressly prohibited.” Tafflin v. Levitt,

493 U.S. 455, 470 (1990) (Scalia, J., concurring) (quoting The Federalist No. 82 (Alexander Hamilton)). In

this case, the California courts refused to permit Petitioner to raise a federal constitutional defense in a California State enforcement proceeding under a

California State environmental regulation, concluding

that the jurisdictional provisions of the Clean Air Act

(“CAA”), 42 U.S.C. § 7607(b)(1), rebutted the presumption of concurrent state court jurisdiction. The Court

acknowledged that the CAA was silent on this novel

question.

The question presented is:

In this case of first impression before this Court,

does the CAA withdraw concurrent state court jurisdiction to adjudicate the constitutionality of state regulations, where 42 U.S.C. § 7607(b)(1) is altogether

silent on the subject of state court jurisdiction?

PARTIES TO THE PROCEEDING BELOW

The Court of Appeal of the State of California,

Third District (California Court of Appeal) consolidated two separate appeals in this matter, involving

different plaintiffs/appellants. The parties in those respective appeals were as follows:

Appeal No. C083083

Petitioner:

Jack Cody

Respondents:

State Air Resources Board

Richard W. Corey

Mary D. Nichols

Matt Rodriguez

Appeal No. C082828

Petitioner:

Alliance for California Business

Respondent:

State Air Resources Board

RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

is Jack Cody d/b/a Cody Transportation Ltd., which is

a Subchapter S Corporation having no parent corporations, subsidiaries (including wholly-owned subsidiaries), or affiliates that have issued shares to the public.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

PARTIES TO THE PROCEEDING BELOW .........

RULE 29.6 STATEMENT ......................................

TABLE OF CONTENTS ........................................

iii

TABLE OF AUTHORITIES ...................................

PETITION FOR A WRIT OF CERTIORARI .........

OPINIONS BELOW ...............................................

JURISDICTION .....................................................

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED ...................................

STATEMENT OF THE CASE ................................

Factual and Procedural Background ..........

The Clean Air Act.........................................

REASONS FOR GRANTING THE PETITION .....

I. The CAA Does Not Divest California Courts

of Jurisdiction to Review Constitutional Violations ......................................................... 10

A. It Is Presumed That State Courts Have

Concurrent Jurisdiction to Enforce

Rights Created Under Federal Law...... 10

B. The CAA Does Not Divest the State

Courts of Concurrent Jurisdiction ........ 14

TABLE OF CONTENTS – Continued

Page

II. Cody Could Not Have Challenged the Constitutionality of the Regulation Under Section 7607, and There Must Be a Meaningful

Opportunity for Judicial Review of Agency

Action ........................................................... 19

III.

Cody’s As-Applied Challenge Was Permissible and Timely.............................................. 25

IV. There Are No Supreme Court Decisions

Precluding Constitutional Review of Regulations Approved in SIPs ............................. 28

CONCLUSION .......................................................

APPENDIX

Opinion, Court of Appeal of the State of California, Third Appellate District, dated May 29,

2018 .................................................................. App. 1

Judgment, Superior Court of the State of California, County of Sacramento, dated August

31, 2016 .......................................................... App. 30

Denial of Petitions for Review, Supreme Court of

California, dated August 15, 2018 ................. App. 42

TABLE OF AUTHORITIES

Page

CASES

Alliance for Cal. Bus. v. State Air Resources Bd.,

23 Cal. App. 5th 1050, 234 Cal. Rptr. 3d 22

(2018) ............................................................... passim

Am. Trucking Ass’ns, Inc. v. E.P.A., 600 F.3d 624

(D.C. Cir. 2010) ........................................................22

Am. Trucking Ass’ns, Inc. v. Scheiner, 483 U.S.

266 (1987) ..................................................................8

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

(1985) .......................................................................11

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

(1959) .........................................................................7

Block v. Cmty. Nutrition Inst., 467 U.S. 340

(1984) .......................................................................13

Bowen v. Mich. Acad. of Family Physicians, 476

U.S. 667 (1986) .................................................. 32, 33

Buckeye Power, Inc. v. E.P.A., 481 F.2d 162 (6th

Cir. 1973) ........................................................... 25, 27

Cal. Dump Truck Owners Ass’n v. Nichols, 784

F.3d 500 (9th Cir. 2015) ............. 19, 28, 29, 30, 31, 32

Cal. Dump Truck Owners Ass’n v. Nichols, 924

F. Supp. 2d 1126 (E.D. Cal. 2012) .............................6

Califano v. Sanders, 430 U.S. 99 (1977) .....................13

Charles Dowd Box Co. v. Courtney, 368 U.S. 502

(1962) ........................................................... 10, 11, 12

Cianci v. Superior Court, 40 Cal. 3d 903, 221

Cal. Rptr. 575 (1985) ...............................................12

TABLE OF AUTHORITIES – Continued

Page

Claflin v. Houseman, 93 U.S. 130 (1876) ............ 2, 3, 10

Clean Air Implementation Project v. EPA, 150

F.3d 1200 (D.C. Cir. 1998) .......................................26

Clean Water Action Council of Ne. Wis., Inc. v.

U.S. Envtl. Prot. Agency, 765 F.3d 749 (7th Cir.

2014) ........................................................................18

Commonwealth Edison Co. v. U.S. Nuclear Regulatory Comm’n, 830 F.2d 610 (7th Cir. 1987) ..... 26, 27

Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 266

F. Supp. 2d 1101 (N.D. Cal. 2003) ...........................26

Envtl. Tech. Council v. Sierra Club, 98 F.3d 774

(4th Cir. 1996)............................................................8

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473

(1981) ................................................................. 10, 11

Holmes Fin. Assocs., Inc. v. Resolution Trust

Corp., 33 F.3d 561 (6th Cir. 1994) ...........................16

Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820) .... 2, 3, 11

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ............12

Ind. & Mich. Elec. Co. v. Evntl. Prot. Agency, 509

F.2d 839 (7th Cir. 1975) ..................................... 17, 27

Ind. Envtl. Mgmt. Bd. v. Ind.-Ky. Elec. Corp., 393

N.E.2d 213 (Ind. Ct. App. 1979) ..............................17

Int’l Ass’n of Fire Fighters, Local 188, AFL-CIO

v. Public Emp’t Relations Bd., 51 Cal. 4th 259,

120 Cal. Rptr. 3d 117 (2011) ............................. 12, 13

Johnson v. Robison, 415 U.S. 361 (1974) ....................33

vii

TABLE OF AUTHORITIES – Continued

Page

Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885

(8th Cir. 1977)..........................................................27

Luminant Generation Co. v. U.S. Envtl. Prot.

Agency, 675 F.3d 917 (5th Cir. 2012) ......................20

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

1997) .................................................................. 29, 30

Motor & Equip. Mfrs. Ass’n, Inc. v. E.P.A., 627

F.2d 1095 (D.C. Cir. 1979) ........................... 21, 22, 24

Nat’l Ass’n of Mfrs. v. Dep’t of Defense, ___ U.S.

___, 138 S. Ct. 617 (2018) .................................... 3, 14

New England Legal Found. v. Costle, 666 F.2d 30

(2d Cir. 1981) ...........................................................30

Owner-Operator Indep. Drivers Ass’n v. Corey, No.

2:14-CV-00186-MCE-AC, 2014 WL 5486699

(E.D. Cal. Oct. 29, 2014) ............................................7

Pac. Nw. Venison Producers v. Smitch, 20 F.3d

1008 (9th Cir. 1994) ............................................... 7, 8

Panitz v. District of Columbia, 112 F.2d 39 (D.C.

Cir. 1940) .................................................................22

Sierra Club v. Ind.-Ky. Elec. Corp., 716 F.2d 1145

(7th Cir. 1983).............................................. 18, 19, 31

St. Joseph Stock Yards Co. v. United States, 298

U.S. 38 (1936) ..........................................................33

Steffel v. Thompson, 415 U.S. 452 (1974) ...................12

Tafflin v. Levitt, 493 U.S. 455 (1990) .................. passim

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

(1994) .......................................................................13

viii

TABLE OF AUTHORITIES – Continued

Page

Trainor v. Hernandez, 431 U.S. 434 (1977) ................12

Union Electric Co. v. Envtl. Prot. Agency, 427

U.S. 246 (1976) ............................................ 17, 23, 24

Union Pac. R.R. Co. v. Cal. Public Utilities

Comm’n, 346 F.3d 851 (9th Cir. 2003) ......................8

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

(6th Cir. 1987)..........................................................31

Virginia v. United States, 74 F.3d 517 (4th Cir.

1996) .................................................................. 29, 30

Weinberger v. Salfi, 422 U.S. 749 (1975) ........ 24, 25, 33

Wind River Mining Corp. v. United States, 946

F.2d 710 (9th Cir. 1991) ...........................................26

Yakus v. United States, 321 U.S. 414 (1944) ..............33

Yellow Freight System, Inc. v. Donnelly, 494 U.S.

820 (1990) .......................................................... 15, 16

FEDERAL CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS

U.S. Const. art. I, § 8, cl. 3.............................................5

18 U.S.C. § 1964 ..........................................................15

28 U.S.C. § 1257 ............................................................5

30 U.S.C. § 801 ............................................................13

42 U.S.C. § 1983 ..........................................................32

42 U.S.C. § 7401 ............................................................1

42 U.S.C. § 7410 .......................................... 9, 20, 23, 28

TABLE OF AUTHORITIES – Continued

Page

42 U.S.C. § 7607 .................................................. passim

49 U.S.C. § 14501 ........................................................28

40 C.F.R. Part 52 ...........................................................9

REGULATORY PROCEEDINGS

Approval & Promulgation of Implementation

Plans, 76 Fed. Reg. 40,652 (July 11, 2011) .............21

Approval & Promulgation of Implementations

Plans; California Air Resources Board—In-Use

Heavy-Duty Diesel-Fueled Truck & Bus Regulation, & Drayage Truck Regulation, 77 Fed.

Reg. 20,308, 20,311, 20,313 (April 4, 2012) ....... 21, 29

Approval of Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Texas, 63 Fed. Reg.

51,164 (Sept. 24, 1998) ............................................28

Promulgation of Air Quality Implementation

Plans; Arizona, 81 Fed. Reg. 21,735 (April 13,

2016) ........................................................................27

State Implementation Plans: Response to Petition

for Rulemaking, 80 Fed. Reg. 33,840 (June 12,

2015) .................................................................. 27, 28

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Cal. Gov. Code § 11350 .................................................5

Cal. Code Regs., tit. 13, § 2025 .....................................6

Josh Blackman, State Judicial Sovereignty,

2016 U. Ill. L. Rev. 2033 (2016) .................................4

Gerald Gunther, Congressional Power to Curtail

Federal Court Jurisdiction: An Opinionated

Guide to the Ongoing Debate, 36 Stan. L. Rev.

895 (1984) ................................................................33

Redish & Muench, Adjudication of Federal Causes

of Action in State Court, 75 Mich. L. Rev. 311

(1976) .......................................................................11

The Federalist No. 82 (Alexander Hamilton) ........ 2, 10

PETITION FOR A WRIT OF CERTIORARI

This case presents a landmark question of first impression concerning whether the state courts of California, and the courts of all other states in the country,

have been deprived of their sovereign jurisdiction to

provide redress for constitutional violations by state

officials under state environmental regulations, merely

because such regulations have been approved by a federal regulatory agency as being consistent with federal

regulatory standards under the CAA. The California

Court of Appeal acknowledged that this case presents

“a novel question regarding jurisdiction under the

unique and complex cooperative federalism scheme

of the federal Clean Air Act (42 U.S.C. § 7401 et seq.).”

Alliance for California Business v. State Air Resources

Bd., 23 Cal. App. 5th 1050, 1053, 234 Cal. Rptr. 3d 22,

24 (2018), App. 1-29 (“Alliance”). But in reaching the

unprecedented conclusion that the courts of California

have been deprived of their inherent jurisdictional

power to redress constitutional violations, the California Court of Appeal demonstrably misconstrued the

meaning of the CAA, ignored controlling United States

Supreme Court precedent, and split with the Seventh

Circuit Court of Appeals, the only other appellate authority to consider the question at hand. This Court

should resolve this important question of federalism

and sovereign state jurisdiction.

This case implicates a core concept in American

jurisprudence: the state courts’ concurrent jurisdiction

to decide matters of federal constitutional law. So central is this concept to our system of justice that in 1788,

Alexander Hamilton singled it out for attention during

the debate regarding the ratification of the Constitution:

When . . . we consider the State governments

and the national governments, as they truly

are, in the light of kindred systems, and as

parts of one whole, the inference seems to be

conclusive, that the State courts would have a

concurrent jurisdiction in all cases arising under the laws of the Union, where it was not

expressly prohibited.

The Federalist No. 82 (Alexander Hamilton). Two hundred years later, Justice Scalia elaborated upon the enduring sanctity of this organic principle of federalism:

State courts have jurisdiction over federal

causes of action not because it is “conferred”

upon them by the Congress; nor even because

their inherent powers permit them to entertain transitory causes of action arising under

the laws of foreign sovereigns, but because

“[t]he laws of the United States are laws in

the several States, and just as much binding

on the citizens and courts thereof as the State

laws are. . . . The two together form one system of jurisprudence, which constitutes the

law of the land for the State; and the courts of

the two jurisdictions are not foreign to each

other. . . .”

It therefore takes an affirmative act of power

under the Supremacy Clause to oust the

States of jurisdiction—an exercise of what one

of our earliest cases referred to as “the power

of congress to withdraw” federal claims from

state-court jurisdiction.

Tafflin, 493 U.S. at 469-70 (Scalia, J., concurring) (quoting Claflin v. Houseman, 93 U.S. 130, 137 (1876) and

Houston v. Moore, 18 U.S. (5 Wheat.) 1, 26 (1820)). Contrary to these fundamental precepts, the California

Court of Appeal found that the CAA divested the California state courts of jurisdiction to hear Petitioner’s

constitutional defenses, even though the court conceded that the statute at issue “is silent regarding the

jurisdiction of state courts.” Alliance, 23 Cal. App. 5th

at 1061, 234 Cal. Rptr. 3d at 30.

The California Court of Appeal specifically seized

on language in 42 U.S.C. § 7607(b)(1) providing that review of administrative action “may be filed only in the

United States Court of Appeals for the appropriate circuit.” However, the case upon which the court placed

chief reliance, National Association of Manufacturers

v. Department of Defense, ___ U.S. ___, 138 S. Ct. 617,

626 (2018), demonstrates that the quoted language

governs whether review can be sought in a federal district court or a federal court of appeals. The case did

not address the subject of concurrent state court jurisdiction. By concluding that this language withdraws

state court jurisdiction, the California Court of Appeal

effectively re-wrote the statute. However, it is the province of Congress, not the courts, to write statutes. As

Justice Sotomayor wrote in National Association of

Manufacturers: “The Court declines the government’s

invitation to override Congress’ considered choice by

rewriting the words of the statute.” Id., 138 S. Ct. at

632.

Additionally, this case involves a question of the

constitutionality of an extraordinarily burdensome, expensive, and discriminatory regulation—a regulation

no other state in the country has promulgated—which

brazenly violates the Commerce Clause. The court’s

conclusion, at odds not only with centuries of precedent, but with a core concept “intrinsic in our constitutional order,” carries important implications for the

limits of state court jurisdiction that go well beyond

this case. See Josh Blackman, State Judicial Sovereignty, 2016 U. Ill. L. Rev. 2033, 2038 (2016). The detrimental precedent established by the California Court

of Appeal will serve to erode state court jurisdiction in

virtually every case in which a federal agency approves

a state regulation in some manner.

The Court should grant certiorari. Neither this

Court nor any state or other federal court has ever

ruled that the courts of the various states are divested

of jurisdiction to hear constitutional claims and defenses by virtue of the judicial review provisions of the

Clean Air Act—until now. The only court to have directly addressed the question is the Seventh Circuit,

which expressly acknowledged concurrent state court

jurisdiction. Given this conflict, and the momentous

principles of federalism at stake, this Court should provide guidance to the state courts on when, and under

what circumstances, they are stripped of their sovereign jurisdiction under a statute that is “silent” on the

subject.

------------------------------------------------------------------

OPINIONS BELOW

The Judgment of the Superior Court of the State

of California, County of Sacramento, was entered on

August 31, 2016. App. 30-41. The Opinion of the California Court of Appeal, Third District, is reported at 23

Cal. App. 5th 1050, 234 Cal. Rptr. 3d 22 (2018), App. 129.

------------------------------------------------------------------

JURISDICTION

The Order of the Supreme Court of California

denying petitions for review was entered on August 15,

2018. App. at 43. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED

The Commerce Clause of the U.S. Constitution

provides: “The Congress shall have the Power . . . [t]o

regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes.” U.S.

Const. art. I, § 8, cl. 3.

Cal. Gov. Code § 11350(a) provides: “Any interested person may obtain a judicial declaration as to the

validity of any regulation or order of repeal by bringing

an action for declaratory relief in the superior court in

accordance with the Code of Civil Procedure.”

The Clean Air Act provides, in relevant part: “A

petition for review of the Administrator’s action in approving or promulgating any implementation plan . . .

or any other final action of the Administrator under

this Act . . . which is locally or regionally applicable

may be filed only in the United States Court of Appeals

for the appropriate circuit.” 42 U.S.C. § 7607(b)(1).

------------------------------------------------------------------

STATEMENT OF THE CASE

A. Factual and Procedural Background

California’s Truck and Bus Regulation (codified at

Cal. Code Regs., tit. 13, § 2025) (the “Regulation”) imposes emissions requirements on all heavy duty vehicles operated in California. Petitioner Jack Cody, a

commercial motor vehicle (“CMV”) operator domiciled

in South Dakota, as well as thousands of other small

business owners, must retrofit their vehicles with extremely expensive engine particulate filters to meet

these emissions standards.

These filters require an investment of at least

$18,000 per vehicle. See Cal. Dump Truck Owners

Ass’n v. Nichols, 924 F. Supp. 2d 1126, 1134 (E.D. Cal.

2012). It is estimated that the Regulation will cost

$1.5 billion over the first five years of its implementation and $2.2 billion over the Regulation’s life. Id.

at 1133.

Interstate truckers make long-term investments

in equipment (typically at least $150,000 per truck),

which meet applicable standards at the time of purchase, with the reasonable expectation they will be able

to use those trucks for many years. Owner-Operator Indep. Drivers Ass’n v. Corey, No. 2:14-CV-00186-MCEAC, 2014 WL 5486699, at *2 (E.D. Cal. Oct. 29, 2014).

Because trucks are purchased with the intent that

they be used for decades, many owner-operators have

lengthy mortgages on their vehicles. Id. If interstate

owner-operators do not comply with the retrofitting

mandates, the resale value of their existing trucks will

diminish. Id. On the other hand, the cost of compliance

is so high that, for many, their only other alternative

will be to discontinue conducting business in California. Id.

The Regulation—imposed solely by California just

like the mudflaps imposed solely by Illinois in Bibb v.

Navajo Freight Lines, Inc., 359 U.S. 520 (1959)—imposes an unconstitutional burden on interstate commerce. See 359 U.S. at 529-30 (“A State which insists

on a design out of line with the requirements of almost

all the other States may sometimes place a great burden of delay and inconvenience on those interstate

motor carriers entering or crossing its territory.”). California’s requiring an exceedingly costly equipment

add-on, out-of-line with all other states, violates the

Commerce Clause by placing an undue burden on interstate operators because they drive comparatively

fewer miles on California roads than California truckers. See id.; see also Pac. Nw. Venison Producers v.

Smitch, 20 F.3d 1008, 1015 (9th Cir. 1994) (“[T]he purpose of the Commerce Clause is to protect the nation

against economic Balkanization. . . .”); cf. Am. Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266, 276 (1987)

(state tax held unconstitutional where it imposed a

“cost per mile . . . approximately five times as high for

out-of-state vehicles as for local vehicles”). If California

can impose such burdensome standards, “so can every

other state, and there is no guarantee that the standards will be similar.” Union Pac. R.R. Co. v. Cal. Public

Utilities Comm’n, 346 F.3d 851, 871 (9th Cir. 2003).

Furthermore, there is no evidence “indicating that

Congress intended to permit the states, directly or by

EPA authorization, to engage in actions otherwise violative of the Commerce Clause.” See Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 783 (4th Cir. 1996).

Cody “was issued a citation in October 2014 for operating a truck in California without a filter, in violation of the Regulation.” Alliance, 23 Cal. App. 5th at

1058, 234 Cal. Rptr. 3d at 28. He appealed the citation

to the California State Air Resources Board (“Board”),

contending that the Regulation violated the Commerce

Clause; however, the Board denied Cody’s appeal. Id.

at 1059-60, 234 Cal. Rptr. 3d at 29. Cody then filed a

petition for writ of mandate and complaint for declaratory relief against the Board and certain of its members in Sacramento County Superior Court. Id. Cody

challenged the constitutionality of the statute “on its

face and/or as applied” to him. Id. The superior court

granted a motion for judgment on the pleadings, ruling

that the court lacked subject-matter jurisdiction over

the case. Id. On appeal to the California Court of Appeal, the court consolidated Cody’s appeal with an

appeal by the Alliance for California Business, which

raised similar jurisdictional questions. Id. at 1053, 234

Cal. Rptr. 3d at 24. The Court of Appeal affirmed the

trial court’s ruling, and the Supreme Court of California denied petitions for review. App. 29, 42.

B. The Clean Air Act

The rulings of the superior court and the California Court of Appeal were based on Section 307(b) of the

CAA (codified at 42 U.S.C. § 7410(b)). Under the CAA,

each state is required to submit to the Environmental

Protection Agency (“EPA”) a State Implementation

Plan (“SIP”) detailing how the state intends to implement, maintain, and enforce national ambient air quality standards. 42 U.S.C. § 7410(a). The EPA is required

to approve any SIP that meets certain minimum criteria. Id. § 7410 (k)(3); see also 40 C.F.R. Part 52. Pursuant to 42 U.S.C. § 7607(b)(1) (Section 307(b)(1) of the

CAA), a “petition for review of action of the [EPA] Administrator [in approving a SIP] may be filed only in

the United States Court of Appeals for the appropriate

circuit . . . within sixty days from the date notice of

such promulgation, approval, or action appears in the

Federal Register.” Id. According to the California Court

of Appeal, “section 307(b)(1) vests exclusive and original jurisdiction over th[is] challenge[ ] to the Regulation . . . in the Ninth Circuit Court of Appeals.”

Alliance, 23 Cal. App. 5th at 1054, 234 Cal. Rptr. 3d at

25.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

The CAA Does Not Divest California Courts

of Jurisdiction to Review Constitutional Violations.

A. It Is Presumed That State Courts Have

Concurrent Jurisdiction to Enforce Rights

Created Under Federal Law.

“The general principle of state court jurisdiction

over cases arising under federal laws is straightforward: state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by

Congress to the contrary or disabling incompatibility

between the federal claim and state-court adjudication.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,

477-78 (1981) (citing Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08 (1962) and Claflin v. Houseman, 93 U.S. 130, 136 (1876)). “This rule is premised

on the relation between the States and the National

Government within our federal system.” Id. (citing The

Federalist No. 82 (Alexander Hamilton)). “The two exercise concurrent sovereignty. . . . Federal law confers

rights binding on state courts, the subject-matter jurisdiction of which is governed in the first instance by

state laws.” Id.

“Nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common

phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal

law has been the exception rather than the rule.”

Charles Dowd Box Co., 368 U.S. at 507-08. “In considering the propriety of state-court jurisdiction over

any particular federal claim, the Court begins with the

presumption that state courts enjoy concurrent jurisdiction.” Gulf Offshore Co., 453 U.S. at 478. The “presumption of concurrent jurisdiction can be rebutted by

an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal

interests.” Id. Stated otherwise, “the presumption is

that jurisdiction is concurrent, and some strong showing of need for exclusive jurisdiction is required to

overcome that presumption.” Redish & Muench, Adjudication of Federal Causes of Action in State Court, 75

Mich. L. Rev. 311, 325, n.63 (1976).

As Justice Scalia aptly stated: “It . . . takes an affirmative act of power under the Supremacy Clause to

oust the States of jurisdiction—an exercise of what one

of our earliest cases referred to as ‘the power of congress to withdraw’ federal claims from state-court

jurisdiction.” Tafflin, 493 U.S. at 469-70 (Scalia, J., concurring) (quoting Houston v. Moore, 18 U.S. (5 Wheat.)

1, 26 (1820)). Justice Scalia concluded:

As an original proposition, it would be eminently arguable that depriving state courts of

their sovereign authority to adjudicate the

law of the land must be done, if not with the

utmost clarity, . . . at least expressly.

Id. (citing Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 243 (1985) (state sovereign immunity can be eliminated only by “clear statement”)).

[T]o restrain a state proceeding that afforded

an adequate vehicle for vindicating the federal plaintiff ’s constitutional rights “would

entail an unseemly failure to give effect to the

principle that state courts have the solemn responsibility equally with the federal courts” to

safeguard constitutional rights and would “reflec(t) negatively upon the state court’s ability” to do so.

Trainor v. Hernandez, 431 U.S. 434, 443 (1977) (quoting

Steffel v. Thompson, 415 U.S. 452, 460-61, 462 (1974)).

“The State would be prevented not only from ‘effectuating its substantive policies, but also from continuing

to perform the separate function of providing a forum

competent to vindicate any constitutional objections

interposed against those policies.” Id. (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).

The California courts have also heretofore embraced these fundamental principles of federalism.

See, e.g., Cianci v. Superior Court, 40 Cal. 3d 903, 910,

221 Cal. Rptr. 575, 577 (1985) (“Our analysis of the

question of jurisdiction proceeds from a well-defined

doctrinal base fashioned by the United States Supreme Court in decisions stretching from the landmark case of Claflin . . . through Charles Dowd Box

Co. . . . to Gulf Offshore Co. v. Mobil Oil Corp.”); see

also Int’l Ass’n of Fire Fighters, Local 188, AFL-CIO

v. Public Emp’t Relations Bd., 51 Cal. 4th 259, 270,

120 Cal. Rptr. 3d 117, 123 (2011) (“[W]hen a federal

administrative action is challenged on the ground that

it violates a constitutional right, ‘the availability of

judicial review is presumed,’ and statutory provisions

will not be construed as foreclosing such review ‘unless

Congress’ intent to do so is manifested by “clear and

convincing” evidence.’ ” (quoting Califano v. Sanders,

430 U.S. 99, 109 (1977))).

The Court of Appeal, however, inappropriately relaxed this demanding standard based on this Court’s

opinion in Thunder Basin Coal Co. v. Reich, 510 U.S.

200 (1994). See Alliance, 23 Cal. App. 5th at 1062, 234

Cal. Rptr. 3d at 31. The court erroneously characterized Thunder Basin as standing for the proposition

that the CAA’s “comprehensive enforcement structure

and unambiguous text, combined with Congress’s clear

concern with channeling and streamlining challenges

to approved SIP submissions in one jurisdiction, establishes a ‘fairly discernable’ [sic] intent to preclude state

court review.” Id. (quoting Thunder Basin, 510 U.S. at

216). However, Thunder Basin did not even involve the

question presented here regarding whether the CAA

has ousted state courts of their inherent concurrent jurisdiction. Thunder Basin involved an entirely inapposite question of whether the Federal Mine Safety and

Health Amendments Act, 30 U.S.C. §§ 801 et seq., allocated initial review of agency action to the agency itself, instead of the federal courts, where congressional

intent was “fairly discernible in the statutory scheme.”

See 510 U.S. at 207 (quoting Block v. Cmty. Nutrition

Inst., 467 U.S. 340, 351 (1984)). Thunder Basin did not

address, nor alter, the far more exacting requirement

that “depriving state courts of their sovereign authority to adjudicate the law of the land must be done, if

not with the utmost clarity, . . . at least expressly.” Tafflin, 493 U.S. at 469-70.

B. The CAA Does Not Divest the State Courts

of Concurrent Jurisdiction.

The California Court of Appeal conceded that “section 307(b)(1) is silent regarding the jurisdiction of

state courts.” Alliance, 23 Cal. App. 5th at 1061, 234

Cal. Rptr. 3d at 30. Nevertheless, the court concluded

that “the express language of the statute rebuts the

presumption of concurrent jurisdiction.” Id. In reaching this conclusion, the court noted that Section 7607

states that a petition for review may be brought “only”

in the federal courts of appeals. Id. In support of its

reasoning, the court cited National Association of Manufacturers v. Department of Defense, ___ U.S. ___, 138

S. Ct. 617, 626 (2018), involving what it referenced as

an “analogous jurisdictional statute—section 509(b)(1)

of the federal Clean Water Act.” Alliance, 23 Cal. App.

5th at 1062, 234 Cal. Rptr. 3d at 31. In Manufacturers,

this Court noted that the Clean Water Act “grants the

federal courts of appeals original and ‘exclusive’ jurisdiction” over seven categories of EPA actions. 138 S. Ct.

at 626. Because the EPA actions in that case did not

fall within any of the seven categories, this Court concluded that any challenges “must be filed in federal

district courts.” Id. at 624. However, Manufacturers

did not address, nor decide, any questions regarding

whether the Clean Water Act divests state courts of concurrent jurisdiction. Rather, the case merely addressed

whether judicial review—in the federal courts—was

channeled to either the district courts or the courts

of appeals. In that regard, Manufacturers supports

Cody’s position here that the use of the word “only” in

Section 7607 governs whether judicial review—in the

federal courts—is channeled to the courts of appeals,

or to the district courts. It does not expressly withdraw

state court jurisdiction.

Cody’s position in this regard is supported under

other statutes as well. In Tafflin, the Court found that

while RICO, 18 U.S.C. § 1964(c), granted federal jurisdiction “in any appropriate United States district

court,” the legislative history revealed “no evidence

that Congress even considered the question of concurrent state court jurisdiction over RICO claims, much

less any suggestion that Congress affirmatively intended to confer exclusive jurisdiction over such claims

on the federal courts.” Tafflin, 493 U.S. at 461.

In Yellow Freight System, Inc. v. Donnelly, 494 U.S.

820, 824 (1990), this Court held that the enforcement

provisions of Title VII authorizing jurisdiction in the

United States district courts did not oust the state

courts of their concurrent jurisdiction, rejecting the

contention that the legislative history revealed Congress’s intention that these claims be brought exclusively in the federal courts. Notably, just like the CAA

here, Yellow Freight observed that Title VII “is completely silent on any role of the state courts over Title

VII claims.” Id. The Court concluded:

In sum, without disagreeing with petitioner’s

persuasive showing that most legislators,

judges, and administrators who have been involved in the enactment, amendment, enforcement, and interpretation of Title VII expected

that such litigation would be processed exclusively in federal courts, we conclude that such

anticipation does not overcome the presumption of concurrent jurisdiction that lies at the

core of our federal system.

Id. at 826.

Other federal circuit cases further illustrate the

flaws in the California Court of Appeal’s reasoning. In

Holmes Financial Associates, Inc. v. Resolution Trust

Corp., 33 F.3d 561, 566 (6th Cir. 1994), the Sixth Circuit

was confronted with a statute providing that “no court

shall have jurisdiction over” the suit at issue except for

federal district courts. The Sixth Circuit read this provision narrowly, so as to preserve state court jurisdiction:

Recent Supreme Court cases make clear that

state courts have concurrent jurisdiction over

cases arising under federal law unless Congress affirmatively divests them of that jurisdiction by express statutory language or by

enacting a statutory scheme which only provides for federal fora and which would be

plainly disrupted by the exercise of state court

jurisdiction. In enacting [the statute at issue],

Congress has done neither.

Id. at 569.

The Seventh Circuit has expressly held that Section 7607 does not channel review of state regulations

exclusively to the federal courts of appeals. In Indiana

& Michigan Electric Company, petitioners sought to

invalidate the EPA’s approval of a SIP, arguing that

it was technologically and economically infeasible to

comply with the SIP. Ind. & Mich. Elec. Co. v. Evntl.

Prot. Agency, 509 F.2d 839, 845 (7th Cir. 1975) (“Indiana & Michigan”). In line with this Court’s later decision in Union Electric Co. v. Environmental Protection

Agency, 427 U.S. 246 (1976) (“Union Electric”), the Seventh Circuit held that it lacked jurisdiction to hear the

challenge. Indiana & Michigan, 509 F.2d at 845. The

court held that petitioners could, however, raise those

issues during an enforcement proceeding. Id. Furthermore, the court invited petitioners to challenge the underlying regulation in state court:

[P]etitioners have a right to challenge the reasonableness of state plans in the state courts,

and . . . if part of a state implementation plan

is held invalid by a state court, the state

would have to revise that part. Should the

state fail to do so, the [EPA] Administrator

must propose and promulgate a revision.

Id. at 847 (quotation marks omitted). Petitioners successfully challenged the SIP in state court on procedural grounds,1 and, during a subsequent case, the

Seventh Circuit held that the state’s invalidation of

the SIP rendered it unenforceable in federal court:

Ind. Envtl. Mgmt. Bd. v. Ind.-Ky. Elec. Corp., 393 N.E.2d

213, 214 (Ind. Ct. App. 1979).

Because administrative actions taken without substantial compliance with applicable

procedures are invalid, it is as if Indiana

never submitted [the 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.

Sierra Club v. Ind.-Ky. Elec. Corp., 716 F.2d 1145, 1148

(7th Cir. 1983); see also Clean Water Action Council of

Ne. Wis., Inc. v. U.S. Envtl. Prot. Agency, 765 F.3d 749,

751 (7th Cir. 2014) (“We conclude . . . that the venue

and filing provisions of § 7607(b) are not jurisdictional.”).

The California Court of Appeal distinguished Sierra Club, stating that the Seventh Circuit’s reference

to procedural challenges establishes “a very narrow

context . . . which . . . is not at issue here.” Alliance, 23

Cal. App. 5th at 1066, 234 Cal. Rptr. 3d at 34. However,

the court’s distinction bears no relevance here, because

no such “procedural challenge” language appears in

Section 7607(b)(1). Indeed, there is no language in the

statute withdrawing any concurrent state court jurisdiction. Again, the states’ concurrent jurisdiction is

naturally preserved under the CAA, unless Congress

has explicitly “withdraw[n]” such jurisdiction. Tafflin,

493 U.S. at 469-70. Congress has made no such explicit

withdrawal of jurisdiction here.

Moreover, the California Court of Appeal failed

to explain why procedural challenges would be any

more acceptable—for jurisdictional purposes—than

any other kind of challenge, because, according to the

court, both types of challenges, “ ‘as a practical matter,

challenge an [Agency’s] final action, including its approval of a SIP.’ ” Alliance, 23 Cal. App. 5th at 1063, 234

Cal. Rptr. 3d at 31 (quoting Cal. Dump Truck Owners

Ass’n v. Nichols, 784 F.3d 500, 507 (9th Cir. 2015)). In

fact, the California Court of Appeal stated that, no

matter how Cody framed his appeal, “semantics do not

inform our jurisdictional inquiry.” Id. “Cody . . . [is]

practically challenging the Agency’s approval of the

Regulation,” and Cody seeks the “practical objective” of

“invalidat[ing] and render[ing] unenforceable, in whole

or in part, . . . a state regulation.” Id. at 1054, 234

Cal. Rptr. 3d at 25. This “practical objective,” however,

is precisely what the Seventh Circuit explicitly permitted in Sierra Club. No matter how the California Court

of Appeal framed its opinion, the court unmistakably

split with the Seventh Circuit—the only other appellate court in the country to decide this precise issue.

II.

Cody Could Not Have Challenged the Constitutionality of the Regulation Under Section 7607, and There Must Be a Meaningful

Opportunity for Judicial Review of Agency

Action.

The California Court of Appeal’s decision was

based on the premise that the EPA is empowered to,

and actually does, assess the constitutionality of a SIP

prior to granting approval. According to the court, because the EPA approved the Regulation as part of

the SIP, Cody should have presented his arguments

regarding the constitutionality of the Regulation to the

Ninth Circuit within 60 days of EPA approval under

Section 7607 in order to forestall his subsequent prosecution for driving into California without an $18,000

filter on his truck. This premise is demonstrably

flawed. Section 7607 channels to the federal courts of

appeals “petition[s] for review of action of the [EPA]

Administrator” in approving SIPs, among other actions. 42 U.S.C. § 7607(b)(1) (emphasis added). The action of the EPA Administrator in reviewing a SIP is

strictly limited. A SIP must meet thirteen criteria. See

42 U.S.C. § 7410(a)(2)(A)-(M). As long as a state complies with these “minimum criteria,” the EPA must approve the plan. Id. § 7410(k)(2). The EPA’s limited role

in approving a SIP is best described as a “ministerial

function of reviewing SIPs for consistency with the

Act’s requirements.” Luminant Generation Co., L.L.C.

v. U.S. Envtl. Prot. Agency, 675 F.3d 917, 921 (5th Cir.

2012).

At the heart of the instant case is Section

7410(a)(2)(E), which requires a SIP to include “necessary assurances that the State . . . is not prohibited by

any provision of Federal or State law from carrying out

such implementation plan.” 42 U.S.C. § 7410(a)(2)(E).

This provision does not empower the EPA to review the

adequacy of the state’s legal analysis, nor does it require the EPA to conduct any legal analysis of its own;

all the EPA is authorized to do is determine whether

the state has assured the EPA that the SIP at issue is

not prohibited by any provision of federal or state law.

Here, unsurprisingly, there was no discussion during

the rulemaking proceedings regarding the Commerce

Clause implications of the Regulation.2

These distinctions are crucial. Congress carefully

limited the scope of the EPA’s review in light of the

separation of powers between the executive and judicial branches, and the agency’s limited expertise in resolving issues of law. The D.C. Circuit articulated the

rationale behind this policy in an analogous case involving a challenge to the EPA’s decision to grant a

waiver of federal preemption to a state regulation. Motor & Equip. Mfrs. Ass’n, Inc. v. E.P.A., 627 F.2d 1095,

1100-01 (D.C. Cir. 1979) (“MEMA”). The D.C. Circuit

observed that the Administrator did not have the expertise to rule on questions of law, and that the EPA

EPA did however conclude that the Regulation was not

preempted by federal law, stating: “Notwithstanding the preemption provisions of the CAA . . . we do not believe that preemption

represents an obstacle to implementation by California with respect to these three particular regulations.” See Approval & Promulgation of Implementation Plans, 76 Fed. Reg. 40,652, 40,658

(July 11, 2011). The Board cannot have it both ways. It cannot

maintain that state court jurisdiction is preempted by federal law,

when it previously requested and obtained a ruling by EPA that

the regulation itself was not preempted. Moreover, the Regulation

was enacted pursuant to California law in 2008, three years prior

to the SIP proceeding. In short, the Board did not need authorization from the EPA in order to promulgate or enforce the Regulation because, as the EPA observed, the Regulation “would still be

enforceable, under State law, regardless of EPA’s action to approve or disapprove” it. See Approval & Promulgation of Implementation Plans; California Air Resources Board—In-Use HeavyDuty Diesel-Fueled Truck & Bus Regulation, & Drayage Truck

Regulation, 77 Fed. Reg. 20,308, 20,312 (April 4, 2012).

was required to grant the waiver as long as certain

minimum criteria were met:

That he like every other administrative officer

owes allegiance to the Constitution does not

mean that he is required to issue rulings of

constitutional dimension. Resolving questions

of constitutional scope is the most important

of judicial functions, “one that even the judiciary is reluctant to exercise.” . . . Here the

Administrator operates in a narrowly circumscribed proceeding requiring no broad policy

judgments on constitutionally sensitive matters.

Id. at 1114-15 (quoting Panitz v. District of Columbia,

112 F.2d 39, 41 (D.C. Cir. 1940)). As particularly relevant here, MEMA further instructed that any constitutional challenges could be freely raised in the state

courts of California: “If petitioners dislike the substance of the CARB’s regulations . . . then they are free

to challenge the regulations in the state courts of California.” Id. at 1105; accord Am. Trucking Ass’ns, Inc. v.

E.P.A., 600 F.3d 624, 631 n.1 (D.C. Cir. 2010) (“If ATA

is concerned that California’s rule unconstitutionally

burdens interstate commerce, ATA also could attempt

to bring a constitutional challenge directly to the California rule.”). The California Court of Appeal summarily dismissed the applicability of these cases because,

the court stated, they involved waivers, not SIPs. Alliance, 23 Cal. App. 5th at 1051, 234 Cal. Rptr. at 35.

Once again, the court’s distinction makes no difference.

In both waiver and SIP proceedings, the Administrator

must grant approval as long as the requisite criteria

are met. And in both proceedings, the criteria do not

permit the Administrator to decide questions of law. In

sum, there is simply no reason to oust the state courts

of their concurrent jurisdiction on such a fallow distinction.

These conclusions are bolstered further by this

Court’s decision in Union Electric, in which an electric

utility company petitioned for review of the EPA’s decision to approve a SIP. 427 U.S. at 252-53. There, the

utility company argued that the SIP established compliance measures that were economically and technologically impossible to comply with. Id. Even though

the petition was timely lodged directly in the Eighth

Circuit Court of Appeals, pursuant to Section 7607, the

court dismissed the petition, reasoning that, because

Section 7607 is limited to actions of the EPA Administrator, and “claims of economic and technological infeasibility could not properly provide a basis for the

Administrator’s rejecting a plan, such claims could not

serve at any time as the basis for a court’s overturning

an approved plan.” Id. at 254. Thus, the Eighth Circuit

lacked jurisdiction to consider a pre-enforcement challenge to the regulation based on claims of economic

and technological infeasibility. Id. This Court affirmed

on the ground that the Administrator cannot consider

any factors other than those explicitly specified under

Section 7410:

[Section 7410] provides that if these criteria

are met and if the plan was adopted after reasonable notice and hearing, the Administrator

“shall approve” the proposed state plan. The

mandatory “shall” makes it quite clear that

the Administrator is not to be concerned with

factors other than those specified, . . . and

none of the . . . factors appears to permit consideration of technological or economic infeasibility.

Union Electric, 427 U.S. at 257-58. As relevant here,

constitutional questions are also not enumerated under the statute, and are likewise not matters of concern

to the Administrator.

Thus, contrary to the principles articulated in

MEMA and Union Electric, the Court of Appeal opined

that “Section 307(b)(1) does not distinguish between or

discuss the substantive grounds upon which a claim is

jurisdictional.” Alliance, 23 Cal. App. 5th at 1064, 234

Cal. Rptr. 3d at 32. However, this is precisely what Section 307(b)(1) (42 U.S.C. § 7607(b)(1)) does. The EPA

may not determine whether a SIP actually is supported by state or federal law, nor may a petition for

review challenge such a determination. The EPA’s role

is limited to determining whether the SIP contains “assurances” to that effect. 42 U.S.C. § 7410(a)(2)(E). In

sum, the EPA did not, and could not, make any findings

on the constitutionality of any regulations embedded

in the SIP. Based on the foregoing, because Cody could

not have brought a petition for review of a decision that

the EPA never made, he never could have challenged

the constitutionality of the Regulation in the Ninth

Circuit.

In the final analysis, the federal and state Constitutions both require at least some form of judicial review. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 762

(1975) (holding that “a serious constitutional question

of the validity of the statute” would be raised if the

statute foreclosed all judicial review). Therefore, “[t]here

remains . . . an important question: If [Cody was] not

entitled to raise [his constitutional] claims . . . prior to

the Administrator’s approval of the state plan[ ], at

what point can these claims be asserted?” See Buckeye

Power, Inc. v. E.P.A., 481 F.2d 162, 173 (6th Cir. 1973).

Again, the answer is clear: Cody had the inalienable

right to invoke the jurisdiction of the courts of the state

that sought to impose fines and penalties upon him for

violating that state’s regulations—California.

III. Cody’s As-Applied Challenge Was Permissible and Timely.

The SIP was approved by EPA in April 2012. However, Cody was not cited for violating the Regulation

until two years later—in October 2014. It was therefore fundamentally unfair to penalize Cody for not

seeking pre-enforcement review of issues that were not

even addressed in the EPA rulemaking under Section

7607(b)(1)—two years before he was ticketed. Indeed,

the Court of Appeal’s decision would prevent any review, in any court, for every interstate trucker who

joined the industry after the expiration of the deadline

in Section 7607—into virtual perpetuity. These truckers never had any conceivable opportunity to challenge

the SIP, yet the Court of Appeal’s ruling retroactively

eliminates their due process rights against unconstitutional enforcement of the Regulation. How can it possibly be said that they had their day in court?

The D.C. Circuit expressly acknowledged the propriety of an as-applied challenge notwithstanding the

draconian provision in 42 U.S.C. § 7607(b)(2) that actions “with respect to which review could have been obtained under paragraph (1) shall not be subject to

review in civil or criminal proceedings for enforcement.” Clean Air Implementation Project v. EPA, 150

F.3d 1200, 1204 (D.C. Cir. 1998) (“[I]f the issues later

become justiciable, as a result for instance of an enforcement action, the petitioner may then raise those

issues, notwithstanding the portion of § 7607(b)(2) just

quoted.”); see also Envtl. Prot. Info. Ctr. v. Pac. Lumber

Co., 266 F. Supp. 2d 1101, 1120 (N.D. Cal. 2003) (“[I]t

is clear that when an agency applies a regulation to a

defendant in an enforcement proceeding, that party

may challenge the validity of the regulation even if the

regulation was promulgated long before.”); Wind River

Mining Corp. v. United States, 946 F.2d 710, 715 (9th

Cir. 1991) (“If . . . a challenger contests the substance

of an agency decision as exceeding constitutional or

statutory authority, the challenger may do so later

than six years following the decision by filing a complaint for review of the adverse application of the decision to the particular challenger.”).

In Commonwealth Edison Co. v. U.S. Nuclear Regulatory Commission, the Court reasoned:

The Hobbs Act’s sixty-day restriction must

mean at least that direct pre-enforcement challenges to rules brought after the expiration of

the time limit are generally beyond the court’s

jurisdiction. However, the cases interpreting

the section establish that indirect challenges to

the rule brought when the rule is applied to a

particular individual are within the court’s jurisdiction.

830 F.2d 610, 613-16 (7th Cir. 1987) (emphasis added);

see also Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885,

891 (8th Cir. 1977) (“[P]laintiff must assert its claims

as a defense or counterclaim in any action brought by

the Administrator of EPA. . . .”); Indiana & Michigan,

509 F.2d at 845 (“[S]ince we hold that a plan’s technological feasibility and economic impact need not be considered by the Administrator in approving a state plan

. . . , it follows that Section 307(b)(2) does not preclude

petitioners from presenting technological feasibility

and economic impact arguments in the course of enforcement proceedings.”); Buckeye Power, 481 F.2d at

172-73 (“Since we have determined that there could

not have been an adequate hearing on individual

claims such as those presented by the petitioners

herein prior to approval of the state plans, the claims

can be asserted as a defense in either federal or state

enforcement proceedings.”).

This procedure has also been endorsed by the EPA

itself. See, e.g., Promulgation of Air Quality Implementation Plans; Arizona, 81 Fed. Reg. 21,735, 21,744

(April 13, 2016) (“To the extent that the commenters

are raising an ‘as applied’ claim of unconstitutionality,

any such claim can be raised in the future in the context of a specific application of the statute in an enforcement action.”); State Implementation Plans: Response to

Petition for Rulemaking, 80 Fed. Reg. 33,840, 33,868

(June 12, 2015) (same); cf. Approval of Application to

Administer the National Pollutant Discharge Elimination System (NPDES) Program; Texas, 63 Fed. Reg.

51,164, 51,188 (Sept. 24, 1998) (“EPA [does not] have

the authority to determine the Constitutionality of

laws passed by the Texas Legislature.”).

IV. There Are No Supreme Court Decisions Precluding Constitutional Review of Regulations Approved in SIPs.

The California Court of Appeal concluded that

Cody’s constitutional defense was jurisdictionally barred

because “the scope of section 307(b)(1)’s jurisdictional

requirement ‘extends to claims that, as a practical

matter, challenge an [Agency’s] final action, including

its approval of a SIP.” See Alliance, 23 Cal. App. 5th at

1063, 234 Cal. Rptr. 3d at 31 (citing Cal. Dump Truck

Owners Ass’n v. Nichols, 784 F.3d 500 (9th Cir. 2015)

(“Dump Truck”)); App. 18. This conclusion is unsupported by any decisions of this Court, and is especially

unsound when applied to the questions of concurrent

state jurisdiction underlying this case. In Dump Truck,

the Ninth Circuit upheld the district court’s dismissal

of the plaintiff ’s challenge to the Regulation under

the preemption provisions of the Federal Aviation Administration Authorization Act (“FAAAA”), 49 U.S.C.

§ 14501(c)(1), reasoning that the Board had provided

the assurances necessary for approval of the SIP under

42 U.S.C. § 7410(a)(2)(E), specifically, that it was not

prohibited from “carrying out the Regulation by ‘any

provision of Federal or State Law.’ ” Dump Truck, 784

F.3d at 510 (quoting Approval & Promulgation of Implementations Plans; California Air Resources Board—

In-Use Heavy-Duty Diesel-Fueled Truck & Bus Regulation, & Drayage Truck Regulation, 77 Fed. Reg. 20,308,

20,311, 20,313 (April 4, 2012)). However, again, at no

point in the rulemaking proceeding did the Board, or

the EPA, purport to conduct any analysis of the Commerce Clause implications of the Regulation; nor did

the EPA opine as to the constitutionality of the Regulation or the Board’s potential future enforcement of

the Regulation against interstate truckers, in violation

of the Commerce Clause. Rather, the EPA consulted

the Section 7410 checklist to determine whether the

Board provided these assurances—nothing more.

In reaching its general conclusion that Section

7607 applies to all federal suits implicating the validity of a SIP, regardless of whether the EPA had actually addressed those claims in approving the SIP,

Dump Truck cited to three circuit court cases—none of

which support that conclusion. The court’s reliance on

Virginia v. United States, 74 F.3d 517 (4th Cir. 1996)

(“Virginia”), and Missouri v. United States, 109 F.3d

440 (8th Cir. 1997) (“Missouri”), was misplaced because

both of those cases arose out of the alleged failure of

Virginia and Missouri to comply with EPA regulations.

Virginia, 74 F.3d at 523; Missouri, 109 F.3d at 441-42.

After the EPA took enforcement action against both

states, they sued the EPA in federal district court, arguing that portions of the CAA were unconstitutional.

Virginia, 74 F.3d at 522; Missouri, 109 F.3d at 441. Because the states’ claims arose from the administrative

actions of the EPA—a fact that both states acknowledged—the district courts dismissed the suits for lack

of jurisdiction, and the Fourth and Eighth Circuits affirmed. Virginia, 74 F.3d at 522-23; Missouri, 109 F.3d

at 441-42. Both of these cases, therefore, stand for the

proposition that a suit challenging an action of the

EPA, in federal court, is subject to the jurisdictional requirements of Section 7607.

The Ninth Circuit’s reliance on New England Legal Foundation v. Costle, was also misplaced because

it touched on Section 7607 only indirectly; the court’s

central concern was whether the appellants could

maintain a “federal common law nuisance action[ ]

based on the emission of chemical pollutants into the

air [by a private party].” 666 F.2d 30, 32 (2d Cir. 1981).

The Second Circuit held that such a suit could not be

maintained for two reasons. First, the EPA had approved the behavior complained of by issuing a variance to New York’s SIP, and “[c]ourts traditionally have

been reluctant to enjoin as a public nuisance activities

which have been considered and specifically authorized by the government.” Id. at 33. The court held

that the appellants had an adequate remedy at law—

namely, a suit under Section 7607—so equitable relief

was not warranted. Id. Costle thus stands for the proposition that a federal suit challenging a decision the

EPA Administrator explicitly made—in the case of

Costle, the decision to grant a variance to New York’s

SIP—is subject to Section 7607.

Dump Truck also cited two other circuit court cases;

however, one of those cases agreed that the state courts

have at least limited jurisdiction, and the other is not

on point. As discussed above, Sierra Club v. IndianaKentucky Electric Corp., rejected the argument that

EPA approval of a SIP cut off state court jurisdiction

entirely, allowing, at minimum, procedural challenges.

716 F.2d 1145, 1152 (7th Cir. 1983). Dump Truck’s reliance on United States v. Ford Motor Co., 814 F.2d 1099

(6th Cir. 1987) is also misplaced. There, Michigan regulatory authorities and Ford entered a consent decree

in state court modifying a SIP. The court held first, that

Michigan could not renege on its obligation to seek

EPA approval of any modifications to its initial SIP;

and second, that review of the EPA’s action on the

state’s modification request could only be filed in federal circuit court. Ford, 814 F.2d at 1103. But that is

not the case presented here. The question presented

here is whether Section 7607(b)(1) cuts off concurrent

state court jurisdiction to review constitutional violations under state regulations.

Dump Truck also fails to support the California

Court of Appeal’s conclusion that Cody is precluded

from asserting a constitutional defense to fines and

penalties in California state court because he failed to

seek review of the EPA’s SIP approval in a federal

court of appeals within 60 days of the EPA’s action under 42 U.S.C. § 7607(b)(1). Alliance, 23 Cal. App. 5th at

1064, 234 Cal. Rptr. 3d at 32, App. 20-21. Dump Truck

involved a federal preemption challenge to the Regulation in a citizen suit brought by California based truckers. It did not involve an “as-applied” challenge to a

citation imposing fines and penalties against interstate truckers under the Regulation, and it certainly

did not hold that a trucker such as Cody would be precluded from raising a constitutional defense against

fines and penalties because he failed to challenge the

SIP decision years before he was cited.

There is also no legitimate rationalization for the

California Court of Appeal’s conclusion that Cody had

his “day in court” in a separate case in which Cody

sought relief in federal court under 42 U.S.C. § 1983—

as a plaintiff. Alliance, 23 Cal. App. 5th at 1058-59,

1068, Cal. Rptr. 3d at 28-29, 35, App. 11-13, 27. There,

the Ninth Circuit dismissed those claims in an order,

with no opinion, citing Dump Truck, and section

307(b)(1). Id. In citing the jurisdictional provisions of

section 307(b)(1), the Ninth Circuit sent an unmistakable telegraph that Cody should never have even been

permitted to pass through the courthouse doors of a

federal court, much less get his day in that court. The

fact that the Ninth Circuit repudiated federal court jurisdiction however, does not answer the question presented here, i.e., whether section 307(b)(1), expressly

withdraws state court jurisdiction allowing Cody his

day in California State court to raise constitutional defenses to fines and penalties which the State seeks to

impose upon him for violating the Regulation. That is

an issue that was not presented to—nor decided by—

the Ninth Circuit.

This Court has opined that a “serious constitutional question” would arise if it construed a statute “to

deny a judicial forum for constitutional claims.” Bowen

v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681,

n.12 (1986); see also Weinberger, 422 U.S. at 762 (holding that “a serious constitutional question of the validity of the statute” would be raised if the statute

foreclosed all judicial review); Johnson v. Robison,

415 U.S. 361, 366-67 (1974) (same); cf. Yakus v. United

States, 321 U.S. 414, 433 (1944) (suggesting that due

process requires the availability of judicial review); St.

Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84

(1936) (“The supremacy of law demands that there

shall be opportunity to have some court decide whether

an erroneous rule of law was applied. . . .”); Gerald

Gunther, Congressional Power to Curtail Federal Court

Jurisdiction: An Opinionated Guide to the Ongoing

Debate, 36 Stan. L. Rev. 895, 922, n.113 (1984) (“[A]ll

agree that Congress cannot bar all remedies for enforcing federal constitutional rights.”).

As demonstrated herein, Cody never had a meaningful opportunity to mount a pre-enforcement challenge under Section 7607 in federal court. Now, the

California Court of Appeal has foreclosed any possibility of judicial review of the constitutionality of the Regulation in state court. This decision is grievously

antithetical to the most fundamental due process protections guaranteed by the United States Constitution.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

PAUL D. CULLEN, SR.

DANIEL E. COHEN

Counsel of Record

PAUL D. CULLEN, JR.

CHARLES R. STINSON

THE CULLEN

LAW FIRM, PLLC

1101 30th Street NW,

Suite 300

Washington, DC 20007

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dec@cullenlaw.com

Dated: November 9, 2018

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.