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

Supreme Court briefNov 9, 2018

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App. 1

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

(Sacramento)

---ALLIANCE FOR CALIFORNIA

BUSINESS,

Plaintiff and Appellant,

C082828

(Super. Ct.

No. 13CV01232)

v.

STATE AIR RESOURCES BOARD,

Defendant and Respondent.

C083083

JACK CODY,

Plaintiff and Appellant,

v.

(Super. Ct. No.

34201580002116

CUWMGDS)

STATE AIR RESOURCES BOARD

et al.,

Defendants and Respondents.

(Filed on May 29, 2018)

APPEAL from a judgment of the Superior Court of

Glenn County, Peter B. Twede, Judge. Affirmed.

Cannata, O’Toole, Fickes & Almazan, Therese Y.

Cannata, Mark P. Fickes, and Zachary Colbeth for

App. 2

Plaintiff and Appellant Alliance for California Business.

Xavier Becerra, Attorney General, Robert W.

Byrne, Senior Assistant Attorney General, Russell B.

Hildreth and Nicholas Stern, Deputy Attorneys General for Defendants and Respondents State Air Resources Board.

APPEAL from a judgment of the Superior Court of

Sacramento County, Timothy M. Frawley, Judge. Affirmed.

The Cullen Law Firm, Daniel E. Cohen and Noah

M. Rich; Brian Leighton Law Offices and Brian Leighton for Plaintiff and Appellant, Jack Cody.

Xavier Becerra, Attorney General, Robert W.

Byrne, Senior Assistant Attorney General, Randy L.

Barrow, Linda Gandara, Courtney S. Covington, and

Carolyn Nelson Rowan, Deputy Attorneys General for

Defendants and Respondents State Air Resources

Board.

We consolidated these cases to address 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.) (Act).

The Act authorizes the United States Environmental

Protection Agency (Agency) to promulgate national

primary and secondary ambient air quality standards.

(Id., §§ 7408, 7409.) States, however, have the “primary

responsibility for assuring air quality” and must each

devise, adopt, and implement a state implementation

App. 3

plan (SIP) specifying how the state will achieve and

maintain the national air quality standards. (Id.,

§ 7407(a).) The SIP is submitted to the Agency’s administrator (Administrator) for approval. (Id., § 7410(a)(1),

(a)(3)(B).) Once approved by the Administrator and

codified in the Code of Federal Regulations, the SIP becomes federal law and may be enforced “by either the

State, the [Agency], or via citizen suits.” (Bayview

Hunters v. Metropolitan Transp. (9th Cir. 2004) 366

F.3d 692, 695; California Dump Truck Owners Ass’n. v.

Nichols (9th Cir. 2015) 784 F.3d 500, 503 (Dump

Truck).)

The cases here seek the same relief and practical

objective – to invalidate and render unenforceable, in

whole or in part, albeit on different grounds, a state

regulation known as the Truck and Bus Regulation1

(Regulation), which was approved by the Administrator as part of and incorporated into California’s SIP.

Plaintiff Jack Cody argues the Regulation violates the

dormant commerce clause of the United States Constitution because it discriminates against out-of-state

truckers by imposing a disproportionate compliance

burden on them. Plaintiff Alliance for California Business2 (Alliance) argues the Regulation is unlawful because part of its mandate conflicts with state and

1

“Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants, from InUse Heavy-Duty Diesel-Fueled Vehicles.” (Cal. Code Regs., tit.

13, § 2025.)

2

Alliance confusingly uses variations of its name in its briefing. We use the name identified in its notice of appeal.

App. 4

federal safety laws. Defendants, including the California Air Resources Board (Board), raised lack of subject

matter jurisdiction under section 307(b)(1)3 of the Act

in both cases on appeal.4

The pertinent question is a discrete issue of statutory interpretation: whether section 307(b)(1) vests exclusive and original jurisdiction over these challenges

to the Regulation incorporated into and approved as

part of California’s SIP in the Ninth Circuit Court of

Appeals. We conclude it does and affirm the judgments

for lack of jurisdiction.

GENERAL BACKGROUND

To assist in a better understanding of the factual

and procedural background of these cases and the discussion that follows, we begin with the general background of the regulatory framework underlying the

Act and its jurisdictional provisions.

I

Regulatory Framework And Background

The Act “sets forth a cooperative state-federal

scheme for improving the nation’s air quality.” (Vigil v.

3

All subsequent references to section 307(b)(1) shall be to

that section in the Act. Section 307(b)(1) is codified at section

7607(b)(1) of title 42 of the United States Code.

4

While the Alliance defendants did not raise it in the trial

court, lack of subject matter jurisdiction may be raised for the first

time on appeal. (People v. Lara (2010) 48 Cal.4th 216, 225.)

App. 5

Leavitt (9th Cir. 2004) 381 F.3d 826, 830.) The Agency

establishes the national air quality standards and the

states devise, adopt, and implement a SIP to satisfy

those standards. (Ibid.) The Board is the state agency

responsible for carrying out this federal mandate in

California. (Health & Saf. Code, § 39602.) SIP’s evolve

over time to account for new national air quality standards and emissions reduction technologies. (See 42

U.S.C. § 7410(a)(2)(H).)

The Administrator is required to approve the

state’s SIP submission if it complies with the provisions of the Act and applicable federal regulations. (42

U.S.C. § 7410(k); 40 C.F.R. § 52.02(a) (2017).) Among

other things, the SIP must contain “enforceable emission limitations and other control measures, means, or

techniques . . . as well as schedules and timetables for

compliance,” and provide “necessary assurances that

the State . . . will have adequate personnel, funding,

and authority under State (and, as appropriate, local)

law to carry out such implementation plan (and is not

prohibited by any provision of Federal or State law

from carrying out such implementation plan or portion

thereof ).” (42 U.S.C. § 7410(a)(2)(A), (E).)

In May 2011, the Board submitted the Regulation

to the Agency for inclusion in California’s SIP. (76

Fed.Reg. 40652, 40653 (July 11, 2011).) The Board had

adopted the Regulation in 2008 to help California meet

the national standards for fine particulate matter and

ozone. (Cal. Code Regs., tit. 13, § 2025, subd. (a); Dump

Truck, supra, 784 F.3d at p. 503.) The Regulation generally sets forth stated deadlines by which certain

App. 6

diesel vehicles operating in California must be retrofitted with diesel particulate filters5 or upgraded to

newer model engines with those filters. (Cal. Code

Regs., tit. 13, § 2025, subds. (b), (d)(18), (d)(35), (d)(60),

(e)-(g); 76 Fed.Reg., supra, at pp. 40654-40655.) The filters are verified by the Board, as required by the Regulation, pursuant to the Verification Procedure,6 which

sets forth the procedures and requirements for manufacturers to obtain verification of their filters. (Cal.

Code Regs., tit. 13, § 2025, subd. (d)(18), (d)(35), (d)(60)

& §§ 2700-2711.)

On July 11, 2011, the Agency published a proposed

rule to approve California’s request to incorporate the

Regulation and other regulations into its SIP. (76

Fed.Reg., supra, at p. 40652.) The Agency explained the

requirements and key concepts of the Regulation, including the requirements relating to the filters verified

pursuant to the Verification Procedure. (Id. at pp.

40654-40656.) As part of its analysis, the Agency discussed the enforceability of the Regulation and found

the state has adequate legal authority to implement

the regulations. (Id. at pp. 40658-40659.) It further determined it “kn[e]w of no obstacle under Federal or

5

A diesel particulate filter is a highest level verified diesel

emission control strategy (also known as “Highest level VDECS”)

to reduce diesel particulate emissions required by the Regulation

for retrofitting pre-2007 engines. (Cal. Code Regs., tit. 13, § 2025,

subds. (d)(18), (d)(35), (d)(60), (e)-(g).)

6

“Verification Procedure, Warranty and In-Use Compliance

Requirements for In-Use Strategies to Control Emissions from

Diesel Engines.” (Cal. Code Regs., tit. 13, §§ 2700-2711.)

App. 7

State law in [the Board’s] ability to implement the regulations.” (Id. at p. 40658.)

On April 4, 2012, the Agency issued its final rule

approving the Board’s SIP submission, noting it received no comments on its proposed rule. (77 Fed.Reg.

20308-20314 (Apr. 4, 2012).) The Regulation was incorporated into California’s SIP by reference. (40 C.F.R.

§ 52.220(c)(410) (2017).) In the final rule notice, the

Agency reiterated the basis it used to evaluate the Regulation, including its determination that the state provided the necessary assurances required under the

Act. (77 Fed.Reg., supra, at p. 20311.)

II

The Jurisdictional Statute

Section 307(b)(1) provides, in pertinent 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).)

The petition “shall be filed within sixty days from the

date notice of such promulgation, approval, or action

appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this

subsection shall be filed within sixty days after such

grounds arise.” (Ibid.)

App. 8

Section 307(b)(2) of the Act7 states, in part, that

an “[a]ction of the Administrator with respect to

which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil

or criminal proceedings for enforcement.” (42 U.S.C.

§ 7607(b)(2).) Further, section 307(e) of the Act8 provides “[n]othing in this Act shall be construed to authorize judicial review of regulations or orders of the

Administrator under this Act, except as provided in

this section.” (42 U.S.C. § 7607(e).)

PROCEDURAL AND FACTUAL BACKGROUND

I

Alliance

Alliance promotes business interests throughout

California. Its membership includes truck owners and

operators subject to the Regulation. Alliance sued the

Board and its chair, executive officer, and board members in Glenn County Superior Court claiming safety

concerns with the installation and use of the filters.

After several law and motion rulings, Alliance’s complaint was limited to a single cause of action for declaratory relief.

7

All subsequent references to section 307(b)(2) shall be to

that section in the Act. Section 307(b)(2) is codified at section

7607(b)(2) of title 42 of the United States Code.

8

All subsequent references to section 307(e) shall be to that

section in the Act. Section 307(e) is codified at section 7607(e) of

title 42 of the United States Code.

App. 9

Alliance alleged the controversy concerns the

“legality [of the Regulation], as designed, approved,

and implemented by defendants,” and that its members would suffer irreparable harm if the Regulation is

implemented and enforced because they would be

“forced to install an unproven, defective and dangerous

technology, to wit the [filter] device” or suffer fines, penalties, and lost revenue due to the inability to operate

their trucks in California. In its request for relief, Alliance sought a declaration that the continued enforcement of the Regulation and Verification Procedure, in

whole or in part, with respect to the filter requirement

would place Alliance members “in the position of violating California public health and safety laws.” It further sought an injunction prohibiting enforcement of

the Regulation and the Verification Procedure “in their

entirety, or at least as to the current [filter] device requirements.”

Defendants filed a motion for judgment on the

pleadings on two grounds: (1) the complaint failed to

state facts sufficient to constitute a cause of action because subdivision (q)(5) of the Regulation provides a

procedure by which an owner or operator of a diesel

truck subject to the retrofit requirement may receive

an exemption upon a showing that installation of a verified filter would violate state and federal health and

safety laws; and (2) the court lacked jurisdiction because Alliance’s members failed to exhaust their administrative remedies under subdivision (q)(5) of the

Regulation prior to filing suit.

App. 10

The court granted defendants’ motion, finding

Alliance failed to state a legally sufficient cause of

action because the Regulation and Verification Procedure, “by their express terms,” negate the allegations

in the complaint and do not place Alliance’s members

in the position of violating health and safety laws. The

court further found the truck owners and operators

could obtain an extension of the retrofit deadline following an administrative determination that the filter

cannot be installed safely or that it violates health and

safety laws.

The court entered judgment in favor of the defendants. Alliance appeals.

II

Cody

Cody is an out-of-state professional truck driver

who was issued a citation in October 2014 for operating a truck in California without a filter, in violation of

the Regulation. This is Cody’s fourth legal proceeding

arising out of the citation and his fourth attempt to invalidate the Regulation for violation of the dormant

commerce clause. Having failed in his original choice

of venue, federal district court and the Ninth Circuit,

and then in Sacramento Superior Court, he now brings

this matter before us on appeal.

App. 11

A

Federal Challenges

In 2014, Cody joined a suit by the Owner-Operator

Independent Drivers Association, Inc. (OOIDA) and

individual truck owner-operators against the Board

to invalidate the Regulation, filed in the Eastern District of California. (OOIDA v. Corey (E.D. Cal. July 9,

2015, No. 2:14-CV-00186-MCE-AC) 2015 WL 4164649.)

OOIDA and the individual truck owner-operators asserted a facial challenge on dormant commerce clause

grounds, and Cody asserted an “as-applied” challenge

on the same grounds. The Board filed a motion to dismiss for lack of jurisdiction, arguing, among other

things, section 307(b)(1) vests exclusive jurisdiction

over such claims in the Ninth Circuit and the case

could not proceed absent joinder of the Agency, a necessary and indispensable party. (OOIDA v. Corey, supra, 2015 WL 4164649 at p. *5.)

The district court found the facial and asapplied challenges implicated the Agency’s final action

approving the Regulation as part of California’s SIP

and, therefore, under section 307(b)(1), the claims fell

within the original and exclusive jurisdiction of the

Ninth Circuit. (OOIDA v. Corey, supra, 2015 WL

4164649 at p. *5, incorporating OOIDA v. Corey (E.D.

Cal. Oct. 29, 2014, No. 2:14-CV-00186-MCE-AC) 2014

WL 5486699 at pp. *5-*6.) While the court dismissed

the facial challenge by OOIDA and the individual

App. 12

truck owner-operators,9 it transferred Cody’s asapplied claim to the Ninth Circuit instead of dismissing it. The court did so because it was unclear whether

Cody’s claim was time-barred by the 60-day limit in

section 307(b)(1) (Cody filed his claim approximately

42 days after issuance of the citation), and “because the

complicated interplay of state and federal law raised

unique jurisdictional questions in this procedural

posture.” (OOIDA v. Corey, supra, 2015 WL 4164649 at

p. *6.)

Following the transfer to the Ninth Circuit, the

Board moved to dismiss the claim for lack of jurisdiction based on the 60-day statute of limitations in section 307(b)(1). The Board argued Cody’s challenge

existed when the Agency approved the Regulation as

part of the SIP and Cody raised no facts indicating his

claim was based solely on grounds arising after the 60day time frame. The Agency joined in the action and

filed a motion to dismiss as well.

On January 27, 2016, the Ninth Circuit granted

the motions to dismiss. The order did not include an

opinion, but the court cited to section 307(b)(1) and its

prior Dump Truck decision. In Dump Truck, the Ninth

Circuit held that section 307(b)(1) vested exclusive jurisdiction over a constitutional preemption claim seeking to invalidate the Regulation (following its approval

9

OOIDA appealed the dismissal of its claims to the Ninth

Circuit. The Ninth Circuit affirmed the district court’s judgment

because, “ ‘as a practical matter,’ ” the suit challenged the Administrator’s final action in approving the Regulation as part of the

SIP. (OOIDA v. Corey (9th Cir. 2017) 690 Fed.Appx. 479, 480.)

App. 13

as part of the SIP) in the Ninth Circuit. (Dump Truck,

supra, 784 F.3d at pp. 502-504.)

B

State Challenges

On June 23, 2015, while the district court case was

pending, Cody filed a petition for writ of mandate and

complaint for declaratory relief against the Board, the

Board’s chair and executive officer, and the secretary

for environmental protection in the California Environmental Protection Agency in Sacramento County

Superior Court.10 Cody’s petition again challenged the

October 7, 2014, Board citation. Cody had previously

appealed the citation to the Board, requesting a hearing to introduce evidence that the citation was unconstitutional. The Board responded that the citation was

issued correctly and the regulation “has been approved

and is the law of the land in California.” The Board

further stated that “all citations issued are within the

authority vested by the [Agency].”

Cody alleged the Regulation violates the dormant

commerce clause because it disproportionately burdens out-of-state truckers and improperly regulates interstate commerce. He requested an order declaring

the Regulation unconstitutional “on its face and/or as

applied” and prohibiting the Board from enforcing the

Regulation against him and “other similarly situated

10

Cody was not “haled into state court for a violation of state

law,” as he asserts. Cody is the plaintiff.

App. 14

interstate truck owner-operators.” Defendants filed a

motion for judgment on the pleadings for lack of jurisdiction, asserting the Ninth Circuit has exclusive jurisdiction over Cody’s claims under section 307(b)(1).

Cody opposed the motion, arguing state court jurisdiction was appropriate because he was asserting the constitutional claim as a defense to prosecution.

The trial court agreed with the defendants and

granted the motion. Relying on Dump Truck, the court

explained that, “[d]ue to the [Agency’s] approval of the

Regulation as part of California’s SIP, [Cody’s] complaint effectively challenges the validity of the SIP, and

therefore is the type of action to which section 307(b)(1)

of the [Act] applies.” Cody appeals.

DISCUSSION

I

Standard Of Review

The lack of subject matter jurisdiction cannot be

waived and may be raised at any time, even for the first

time on appeal. (People v. Lara, supra, 48 Cal.4th at p.

225; Cowan v. Superior Court (1996) 14 Cal.4th 367,

372.) Where the evidence is undisputed, subject matter

jurisdiction is a legal question subject to de novo review. (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32,

42.) Additionally, statutory interpretation is a question

of law subject to de novo review. (In re Tobacco II Cases

(2009) 46 Cal.4th 298, 311.)

App. 15

II

The Ninth Circuit Has Exclusive

Jurisdiction Over These Cases

A

Where Section 307(b)(1) Applies,

It Confers Exclusive Jurisdiction

The initial question is whether section 307(b)(1)

grants the federal circuit courts of appeals original and

exclusive jurisdiction over the actions enumerated

therein. It does.

State courts are generally presumed to have concurrent jurisdiction with federal courts, subject to the

limitations of the supremacy clause of the United

States Constitution. (Burt v. Titlow (2013) 571 U.S. 12,

19 [187 L.Ed.2d 348, 355].) This “presumption arises

when the jurisdictional provision in question is silent

as to the jurisdiction of state courts.” (Kingston Constructors, Inc. v. Washington Metropolitan Area Transit

Authority (1997) 14 Cal.4th 939, 948, italics omitted.)

“Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly.” (Gulf Offshore Co. v. Mobil Oil Corp. (1981) 453 U.S. 473, 478 [69

L.Ed.2d 784, 791].) Thus, where the presumption

arises, it “can be rebutted by an explicit statutory directive, by unmistakable implication from legislative

history, or by a clear incompatibility between statecourt jurisdiction and federal interests.” (Ibid.)

While section 307(b)(1) is silent regarding the jurisdiction of state courts, the express language of the

App. 16

statute rebuts the presumption of concurrent jurisdiction. As in any case of statutory interpretation, we look

to the words Congress used and give them their usual

and ordinary meaning. (People v. Superior Court

(Zamudio) (2000) 23 Cal.4th 183, 192.)

Here, the statute provides that the Administrator’s approval of a SIP submission “may be filed only in

the United States Court of Appeals for the [appropriate circuit].” (42 U.S.C. § 7607(b)(1), italics added.)

“Only” means “solely” or “exclusively.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 867; cf. Mims

v. Arrow Financial Servs., LLC (2012) 565 U.S. 368, 380

[181 L.Ed.2d 881, 895] [state jurisdiction not exclusive

because statute did not provide action could be brought

“ ‘only’ in state court, or ‘exclusively’ in state court”].)

Further, section 307(e) explicitly precludes judicial review except as provided in the Act. (42 U.S.C.

§ 7607(e).) Thus, by the plain language of the statute,

federal courts of appeals have original and exclusive

jurisdiction over challenges to the Agency’s actions

enumerated in the statute.

Our conclusion is supported by the Supreme

Court’s interpretation of an analogous jurisdictional

statute – section 509(b)(1) of the federal Clean Water

Act. Section 509(b)(1) of the Clean Water Act provides

that challenges to seven categories of Agency action

“may be had by any interested person in the Circuit

Court of Appeals of the United States for the Federal

judicial district in which such person resides or

transacts business which is directly affected by such

App. 17

action upon application by such person.”11 (33 U.S.C.

§ 1369(b)(1).) The Supreme Court found this jurisdictional statute vests original and exclusive jurisdiction

over challenges to the seven categories of Agency action in the federal courts of appeals. (Nat’l Ass’n of

Mfrs. v. DOD (2018) ___ U.S. ___ [199 L.Ed.2d 501, 512],

citing Decker v. Northwest Environmental Defense Center (2013) 568 U.S. 597, 608 [185 L.Ed.2d 447, 458].)

The directive found in section 307(b)(1) is even more

explicit than the directive in section 509(b)(1) of the

Clean Water Act, because it contains the “only in” language.

B

The Cases Fall Within Section 307(b)(1)’s

Jurisdictional Mandate

We next evaluate whether Cody’s and Alliance’s

claims are of the type Congress intended to channel to

the federal courts of appeals. Relying on the sound

principles of statutory interpretation, we find they are

subject to the jurisdictional mandate. The Act’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

11

Notably, section 307(b)(2) and section 509(b)(2) of the

Clean Water Act have identical preclusion-of-review provisions,

which mandate that any agency action reviewable under their respective preceding subdivisions (b)(1) “shall not be subject to judicial review in any civil or criminal proceeding for enforcement.”

(42 U.S.C. § 3607(b)(2); 33 U.S.C. § 1369(b)(2).)

App. 18

“ ‘fairly discernable [sic]’ ” intent to preclude state court

review in these cases. (Thunder Basin Coal Co. v. Reich

(1994) 510 U.S. 200, 216 [127 L.Ed.2d 29, 43].)12

Cody and Alliance argue the jurisdictional mandate does not apply because they are challenging the

validity and enforceability of the Regulation as a matter of state law – not the SIP or the Agency’s approval

of the Regulation as part of the SIP. However, semantics do not inform our jurisdictional inquiry. Our analysis turns on the effect of their requested relief 13 and

not on how Cody and Alliance chose to frame their

challenges to the Regulation. Otherwise creative lawyering could override congressional intent, a result not

permitted by law.

We agree with all pertinent federal appellate decisions that 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.” (Dump Truck, supra, 784 F.3d at

p. 507, italics added; U.S. v. Ford Motor Co. (6th Cir.

1987) 814 F.2d 1099, 1103 [invalidation of SIP may

12

Notably, where it is unclear whether review jurisdiction

falls within the statute’s exclusive jurisdiction, ambiguity is resolved in favor of the jurisdictional mandate. (General Elec. Uranium v. Dept. of Energy (D.C. Cir. 1985) 764 F.2d 896, 903.)

13

In evaluating subject matter jurisdiction, we focus on the

claims for relief in the context of the allegations in the complaint.

(2 Lambden at [sic] al., Cal. Civ. Practice (2008) Jurisdictional

Effect, § 8:3, citing 2 Witkin, Cal. Procedure (4th ed.) Jurisdiction,

§§ 22 to 31 [“The demand for relief is also used, in conjunction

with the rest of the complaint, to determine whether an action

has been filed in the appropriate jurisdiction”].)

App. 19

only occur in federal appellate courts]; Com. of VA. v.

U.S. (4th Cir. 1996) 74 F.3d 517, 522 [plaintiff could not

circumvent direct review in federal appellate court by

framing its complaint as a constitutional challenge to

the Act]; State of MO. v. U.S. (8th Cir. 1997) 109 F.3d

440, 441 [same].) Section “307(b)(1) channels review of

final [Agency] action exclusively to the courts of appeals, regardless of how the grounds for review are

framed.” (Com. of VA., at p. 523.)

We find Dump Truck particularly persuasive because like Cody’s and Alliance’s requests for relief

here, the plaintiff in that case sought to render the

Regulation invalid and unenforceable. The Dump

Truck plaintiff sought such relief on the basis that the

Regulation was preempted by the Federal Aviation Administration Authorization Act and thus violated the

supremacy clause of the United States Constitution.

(Dump Truck, supra, 784 F.3d at p. 503.) The plaintiff

raised the same argument Cody and Alliance asserts

here: “because it [wa]s challenging only the Regulation

and not the SIP, § 307(b)(1) [did] not apply.” (Dump

Truck, at p. 505.) The Ninth Circuit disagreed.

The Ninth Circuit reviewed the scope of section

307(b)(1) and, relying on, among other cases, Com. of

VA., and State of MO., determined the plaintiff ’s

suit, “as a practical matter, challenge[d] the [Agency’s]

approval of a provision of California’s SIP,” subjecting

it to the jurisdictional mandate. (Dump Truck, supra,

784 F.3d at pp. 505-507.) The court explained that

“the SIP’s effectiveness in attaining the [Agency’s national air quality standards] is directly tied to its

App. 20

enforcement by [the Board], and would be vitiated if

such enforcement were enjoined.” (Id. at p. 508.) Moreover, the constitutional claim “effectively challeng[ed]

the [Agency’s] determination that federal law does not

prohibit the Regulation.” (Id. at p. 507.) Thus, “the

practical, and therefore legal, effect of the [plaintiff ]’s

suit [wa]s to challenge both the [Agency] and the SIP.”

(Ibid.) Accordingly, the plaintiff ’s suit had to be

brought in the Ninth Circuit.

The Dump Truck decision and analysis are wellgrounded in statutory interpretation, logic, and policy.

We cannot divorce the Regulation from the Agency’s

SIP approval; the Regulation and SIP are inextricably

intertwined. As a practical matter, if a California court

invalidates the Regulation on substantive grounds, it

would amount to an implicit repeal of the Agency’s approved SIP because the Regulation is incorporated into

the SIP by reference only. (40 C.F.R. § 52.220(c)(410).)

Such a repeal would invalidate the Administrator’s approval of California’s SIP in state superior court rather

than federal appellate court, rendering section

307(b)(1)’s exclusive jurisdiction mandate superfluous.

We avoid statutory constructions that render words,

phrases, or clauses superfluous. (Klein v. United States

of America (2010) 50 Cal.4th 68, 80-81.)

Further, by seeking to enjoin the Board from

enforcing the Regulation, Cody and Alliance are practically challenging the Agency’s approval of the Regulation because the Board is enforcing the Regulation

under the authority conferred upon it by the Act and

the Administrator’s approval of the Regulation as part

App. 21

of the SIP. (76 Fed.Reg., supra, at pp. 40658-40659;

Bayview Hunters v. Metropolitan Transp., supra, 366

F.3d at p. 695.) Indeed, in response to Cody’s appeal of

the citation, the Board responded, “all citations issued

are within the authority vested by the [Agency].”

Accordingly, we again cannot divorce the Board’s enforcement of the Regulation from its enforcement of

the SIP.

To distinguish Dump Truck, the plaintiffs focus

on the substance of their claims. Alliance argues

section 307(b)(1) does not apply to state law claims.

Cody argues his constitutional challenge does not implicate section 307(b)(1) because the Agency did not expressly opine on the commerce clause implications of

the Regulation in its rulemaking, as compared to its

express consideration of the preemption argument

raised in Dump Truck. We are not persuaded. Section

307(b)(1) does not distinguish between or discuss the

substantive grounds upon which a claim is jurisdictional. (See State of MO. v. U.S., supra, 109 F.3d at

p. 441 [the Act “makes no distinction between constitutional challenges and other challenges”].) Rather,

section 307(b)(1) focuses on the effect of the claim. We

do not insert what has been omitted or omit what has

been inserted in a statute. (Code Civ. Proc., § 1858.)

The substantive claims here directly challenge the Administrator’s determination that the state has adequate legal authority to implement the regulations,

triggering section 307(b)(1). (76 Fed.Reg., supra, at pp.

40658-40659.)

App. 22

Moreover, exclusive jurisdiction to review administrative determinations includes jurisdiction over

related legal issues pertaining to those decisions. (Palumbo v. Waste Technologies Industries (4th Cir. 1993)

989 F.2d 156, 161; Connors v. Amax Coal Co., Inc. (7th

Cir. 1988) 858 F.2d 1226, 1231; accord Media Access

Project v. FCC (D.C. Cir. 1989) 883 F.2d 1063, 10671068.) Even though the Agency did not expressly address the safety laws raised by Alliance or the commerce clause argument raised by Cody, such legal

issues are surely related to the Agency’s determination

regarding enforceability and adequate legal authority.

Thus, such legal issues fall within the exclusive jurisdiction of the Ninth Circuit.

Our conclusion also furthers congressional intent.

Our primary task in statutory interpretation “is to determine [Congress’s] intent, giving effect to the law’s

purpose.” (Tuolumne Jobs & Small Business Alliance

v. Superior Court (2014) 59 Cal.4th 1029, 1037.) We

construe the language in the context of the entire statutory frame work, with consideration given to the policies and purposes of the statute. (Jones v. Superior

Court (2016) 246 Cal.App.4th 390, 397.)

The policies and purposes underlying the exclusive jurisdiction mandate of section 307(b)(1) are expediency and finality. “Congress wanted speedy review of

[Agency] rules and final actions in a single court.”

(Com. of VA. v. U.S., supra, 74 F.3d at p. 525; see Harrison v. PPG Industries, Inc. (1980) 446 U.S. 578, 593 [64

L.Ed.2d 525, 538] [“The most obvious advantage of direct review by a court of appeals is the time saved

App. 23

compared to review by a district court, followed by a

second review on appeal”].) As our Supreme Court

noted, exclusive federal jurisdiction also serves the distinct goal of promoting uniformity in the interpretation and application of those laws to which it applies.

(Cianci v. Superior Court (1985) 40 Cal.3d 903, 913.)

Allowing Cody and Alliance to proceed with their

cases in state court would undermine these policy objectives. The cases would proceed in different venues in

state superior court and would then be subject to appeal in the court of appeal and possibly our Supreme

Court. At the same time, others could pursue similar

challenges to the Regulation in other state venues and

in the Ninth Circuit (in accordance with Dump Truck),

creating substantial potential for inconsistent judgments. As the Ninth Circuit explained in Dump Truck:

“This would frustrate Congress’s goal of having prompt

and final review of decisions regarding SIPs.” (Dump

Truck, supra, 784 F.3d at p. 511.) It would also undercut a major basis for the Act’s jurisdictional scheme:

“ ‘the concern for judicial economy; to wit, the risk of

duplicative or piecemeal litigation, and the risk of contradictory decisions.’ ” (Com. of VA. v. U.S., supra, 74

F.3d at p. 525.)

These concerns are amplified by the Agency’s absence in these cases. The pending litigation would decide whether the Agency-approved Regulation violates

the federal Constitution and state and federal safety

laws, and whether the SIP’s primary enforcement

mechanism is, in fact, unenforceable. Thus, the Agency

certainly has a concrete interest in the lawsuits and its

App. 24

rights could be affected by a judgment in either case.

However, Congress did not waive the Agency’s sovereign immunity and, therefore, it cannot be joined as a

party to these state court actions. (See United States v.

Nordic Village (1992) 503 U.S. 30, 33-34 [117 L.Ed.2d

181, 187-188].) Applying section 307(b)(1) to state

challenges to the Administrator’s SIP determinations

under the Act ensures the Agency’s interests and

rights are protected because such challenges would be

brought in federal court where the Agency may be

joined.

We find none of Cody’s or Alliance’s remaining arguments availing. First, Alliance attempts to distinguish its claims from those in Dump Truck by arguing

it is not seeking to “completely” invalidate the Regulation, but merely challenging “how the regulation is implemented by [the Board] and to the narrow issue of

why the verified [filter] devices, at this time, have

proven to be unsafe, and therefore conflict with other

public safety laws; as such, members of the Alliance

should not be mandated to employ the [filter] technology.” This argument belies the allegations in its complaint and appellate opening brief, wherein Alliance

requests a declaration that the Regulation is invalid

and unenforceable in whole or in part.

Cody and Alliance, like the plaintiff in Dump

Truck, also rely on Sierra Club v. Indiana-Kentucky

Elec. Corp. (7th Cir. 1983) 716 F.2d 1145 for the proposition that a challenge to a SIP-approved state regulation is not confined to exclusive jurisdiction in the

federal courts of appeals. (Dump Truck, supra, 784 F.3d

App. 25

at p. 509.) As the Ninth Circuit pointed out, while Sierra Club stands for this proposition, it does so in a

very narrow context relating to procedural challenges

on state law grounds, which was not at issue in Dump

Truck and is not at issue here. (Dump Truck, at p. 509.)

The Seventh Circuit explained the narrowness of its

determination, stating that “[o]nce a plan is adopted

by the state and it withstands any subsequent procedural challenge, then § [307(b)(1)] provides that invalidation may occur only in the federal appellate courts.”

(Sierra Club, at p. 1152.) Accordingly, Sierra Club supports our conclusion here.

The feasibility and waiver cases upon which Cody

relies are also inapplicable. The Administrator is not

required to consider economic or technologic feasibility

when approving a SIP. (Indiana & Mich. Elec. Co. v.

Environmental Pro. Agcy. (7th Cir. 1975) 509 F.2d 839,

843-844; Buckeye Power, Inc. v. Environmental Protection Agcy. (6th Cir. 1973) 481 F.2d 162, 173 [“petitioners

are not entitled to raise their claims of high cost-benefit, technological infeasibility and resource unavailability prior to the Administrator’s approval of the state

plans”].) Therefore, because feasibility claims do not

fall within the jurisdiction of section 307(b)(1), they are

not subject to the preclusion-of-review provision of section 307(b)(2) and may be asserted as a defense in federal or state enforcement proceedings. (Indiana &

Mich. Elec. Co., at p. 844; Buckeye Power, Inc., at p. 173.)

In contrast to the feasibility cases, the Regulation’s enforceability and the Board’s legal authority to implement the Regulation are express factors applicable to

App. 26

the SIP approval process, and thus claims are subject

to section 307(b)(1) and section 307(b)(2).14 (42 U.S.C.

§ 7410(a)(2)(A), (E).)

The “waiver” cases (Motor and Equipment Mfrs.

Ass’n, Inc. v. E. P. A. (D.C. Cir. 1979) 627 F.2d 1095; Am.

Trucking Ass’ns v. EPA (D.C. Cir. 2010) 600 F.3d 624)

do not arise within the context of SIP approvals either.

Section 209 of the Act “requires the [Administrator] to

waive federal preemption of motor vehicle emission

control regulations for the State of California unless he

makes certain findings that a waiver is inappropriate.”

(Motor and Equipment Mfrs. Ass’n, Inc., at p. 1100.)

Challenges to the Administrator’s waiver decision are

brought pursuant to the federal Administrative Procedure Act (5 U.S.C. § 551 et seq.) and not section

307(b)(1). (Motor and Equipment Mfrs. Ass’n, Inc., at

pp. 1105-1106.) Therefore, the waiver cases do not inform our interpretation of section 307(b)(1).

Finally, our interpretation does not violate due

process, as Cody contends. Cody argues it is “a fundamental principle of administrative law” that he be

14

The legal authority of the state under the federal Constitution and state law to implement the SIP is frequently expressly

discussed by the Administrator during the SIP approval process.

(See 76 Fed.Reg., supra, at p. 40658 [preemption does not present

an obstacle to the implementation of the Regulation by California]; Ass’n. of Irritated Residents v. United States EPA (9th Cir.

2015) 790 F.3d 934 [addressing mistaken approval of rules in conflict of state law as part of California’s SIP]; 68 Fed.Reg. 37746,

37747 (June 25, 2003) [disapproved regulation of certain facilities

because the facilities were exempt from such obligations under a

state statute].)

App. 27

permitted to raise his constitutional challenge as a defense in the Board’s enforcement proceeding. He hyperbolically asserts “the trial court gave away, wholesale,

the authority of every Superior Court judge in this

state to vindicate the basic right to defend oneself in

civil or criminal enforcement proceedings.” The trial

court did not draft the statute, it merely applied it.

Because Cody’s constitutional challenge was subject to

review under section 307(b)(1), the express preclusionof-review provision of section 307(b)(2) applies. (42

U.S.C. § 7607(b)(2) [any “[a]ction of the Administrator

with respect to which review could have been obtained

under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement”].)

This preclusion-of-review provision does not foreclose all meaningful judicial review. Section 307(b)(1)

expressly provides that an action may be brought more

than 60 days after the SIP’s approval if it “is based

solely on grounds arising after such sixtieth day.” (42

U.S.C. § 7607(b)(1).) “[R]estricting judicial review of

[an] administrative determination to a single court”

does not offend due process “so long as it affords to

those affected a reasonable opportunity to be heard

and present evidence.” (Yakus v. United States (1944)

321 U.S. 414, 433 [88 L.Ed. 834, 853].) Cody had his

day in court when the Ninth Circuit considered

whether his constitutional claim was subject to the 60day statute of limitations. The Ninth Circuit found it

was. An appeal from that decision does not lie in state

court.

App. 28

C

Alliance’s Verification Procedure

Allegations Do Not Independently Support

Its Declaratory Relief Cause Of Action

Alliance acknowledges the Verification Procedure

imposes no requirements on truck drivers; it merely

imposes requirements on manufacturers seeking to

verify their filters under the Regulation. It claims,

however, the Verification Procedure impacts truck

drivers because the Verification Procedure conflicts

with public safety laws and truck drivers are then required under the Regulation to install unsafe verified

filters.

A declaratory relief action requires an actual controversy relating to the legal rights and duties of the

respective parties. (Code Civ. Proc., § 1060.) Alliance’s

alleged controversy flows from the Regulation, not

from the Verified Procedure. But for the Regulation,

there would be no controversy to support a declaratory

relief cause of action relating to the Verification Procedure because: (1) the Verification Procedure does not

impose any requirements on Alliance or its members

(i.e., truck drivers) (Cal. Code Regs., tit. 13, §§ 27002711); and (2) Alliance’s claims regarding the Verification Procedure relates to the Verification Procedure “as

a critical component of effective implementation of the

[Regulation].” Therefore, Alliance’s allegations regarding the Verification Procedure merely support its challenge to the Regulation, and are not independent

grounds to give rise to a declaratory relief cause of action.

App. 29

Moreover, the Agency approved the Regulation’s

requirements that the filters be verified pursuant to

the Verification Procedure as part of its SIP approval.

(76 Fed.Reg., supra, at p. 40654.) Therefore, a challenge

to this requirement in the Regulation is subject to the

jurisdictional mandate of section 307(b)(1) as well.

DISPOSITION

The judgments are affirmed for lack of subject

matter jurisdiction. Respondents shall recover their

respective costs on appeal. (Cal. Rules of Court, rule

8.278(a)(1).)

/s/ Robie

Robie, J.

We concur:

/s/ Raye

Raye, P.J

/s/ Duarte

Duarte, P.J

App. 30

KAMALA D. HARRIS

Attorney General of California

TRACY L. WINSOR

Supervising Deputy Attorney General

CAROLYN NELSON ROWAN

State Bar No. 238526

COURTNEY S. COVINGTON

State Bar No. 259723

Deputy Attorneys General

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 445-8227

Fax:

(916) 327-2319

E-mail: Courtney.Covington@doj.ca.gov

Attorneys for Respondents and Defendants

SUPERIOR COURT OF THE

STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

JACK CODY, d/b/a CODY

TRANSPORT,

v.

Case No. 34-201580002116

Petitioner and Plaintiff, [PROPOSED]

JUDGMENT

CALIFORNIA AIR

RESOURCES BOARD

RICHARD W. COREY IN HIS

OFFICIAL CAPACITY AS

EXECUTIVE OFFICER OF

THE CALIFORNIA AIR

RESOURCES BOARD;

(Filed Aug. 31, 2016)

App. 31

MARY D. NICHOLS; IN HER

OFFICIAL CAPACITY AS

CHAIRMAN OF THE

CALIFORNIA AIR RESOURCES BOARD; MATT

RODRIGUEZ IN HIS

OFFICIAL CAPACITY AS

SECRETARY OF THE

CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY,

Respondents and

Defendants.

Respondents and Defendants California Air Resources Board, et al. (Respondents) filed a motion for

judgment on the pleadings on March 3, 2016, on the

grounds that this Court lacks jurisdiction over the instant action. The matter was set to be heard at 10:00

a.m. on August 19, 2016 in Department 29 of this

Court. After full consideration of the opening, opposition, and reply papers, the Court issued a tentative ruling on August 18, 2016, which is attached hereto as

Exhibit A.

Petitioner and Plaintiff Jack Cody (Petitioner) requested a hearing, at which counsel for both parties

appeared before this Court at the scheduled date and

time. The Court heard argument from both parties,

and affirmed the tentative ruling at the conclusion of

the hearing. Accordingly, the tentative ruling attached

hereto as Exhibit A is hereby adopted as the final order

of the Court and is herein incorporated by this reference.

App. 32

IT IS HEREBY ORDERED THAT:

Respondents’ motion for judgment on the pleadings is granted without leave to amend. Judgment is

entered in favor of Respondents and against Petitioner.

Dated: AUG 31 2016

/s/ Timothy M. Frawley

Judge of the

Superior Court

APPROVED AS TO FORM:

Dated:

8-24

, 2016

/s/

Daniel Cohen

Counsel for Petitioner

EXHIBIT A

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO

JACK CODY, d/b/a CODY

TRANSPORT

Case Number: 34-201580002116

v.

TENTATIVE RULING

RE: MOTION FOR

CALIFORNIA AIR

JUDGMENT ON THE

RESOURCES BOARD;

RICHARD W. COREY, in his PLEADINGS

official capacity as Executive Date: August 19, 2016

Officer of the California Air Time: 10:00 a.m.

Resources Board; MARY D. Dept.: 29

NICHOLS, in her official ca- Judge: Timothy M.

pacity as Chairman of the

Frawley

California Air Resources

App. 33

Board; MATT RODRIGUEZ,

in his official capacity as

Secretary of the California

Environmental Protection

Agency

Proceeding:

Motion for Judgment on Pleadings

Tentative Ruling: Granted

-----------------------------------------------------------------------

California’s Truck and Bus Regulation (California

Code of Regulations, title 13, § 2025) requires diesel

trucks and buses that operate in California to install

upgrades and retrofits to reduce exhaust emissions.

Petitioner Jack Cody, doing business as Cody Transportation, is an out-of-state professional truck driver

who was issued a citation for violating the Truck and

Bus Regulation. Petitioner filed this action to challenge the Truck and Bus Regulation. Petitioner alleges

that the Truck and Bus Regulation violates the Commerce Clause of the United States Constitution because it disproportionately burdens out-of-state

truckers and improperly regulates interstate commerce. Respondent California Air Resources Board

(Board) moves for judgment on the pleadings on the

ground the federal court of appeals has exclusive jurisdiction to review Petitioner’s claim. The court shall

grant the motion.

App. 34

Background Facts and Procedure

The Clean Air Act creates a partnership between the

federal government and the states to combat air pollution. (Cal. Dump Truck Owners Ass’n v. Nichols

[“Dump Truck”] (9th Cir. 2015) 784 F.3d 500, 502.) Under the Act, the EPA establishes national ambient air

quality standards, and states have the primary responsibility for meeting such standards. Each state must

adopt, and submit for the EPA’s approval, a state implementation plan (or “SIP,” pronounced like the noun/

verb) that provides for the “implementation, maintenance, and enforcement” of the national standards.

(Ibid.)

A SIP must include “enforceable emission limitations

and other control measures, means, or techniques” as

may be necessary or appropriate to meet the applicable

requirements of the Act. A SIP also must include a

“program to provide for the enforcement” of such

measures, and 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. at

pp.502-03; see also 42 U.S.C. § 7410.) Once approved by

the EPA, a SIP becomes federal law and must be carried out by the state. (Dump Truck, supra, at p.503.)

Approved SIPs may be enforced “by either the State,

the EPA, or via citizen suits.” (Ibid.)

In 2008, the California Air Resources Board (Board)

adopted the Truck and Bus Regulation (Regulation),

Cal. Code Regs. tit. 13, § 2025, to help meet the

App. 35

national standards for ozone and fine particulate matter by reducing emissions of diesel particulate matter

(PM) and oxides of nitrogen (NOx). Broadly speaking,

the Regulation requires trucks and buses operating in

California to be upgraded with pollution filters and

lower-emission engines. (Ibid.)

In April 2011, a trucking association filed a complaint

in federal district court to enjoin enforcement of the

Regulation. It claimed that, under the Supremacy

Clause, the Regulation was preempted by the Federal

Aviation Administration Authorization Act. (Ibid.)

In May 2011, a month after the truck association filed

its complaint, the Board submitted the proposed Regulation to the EPA to be included in California’s SIP.

In July 2011, the EPA issued a notice of proposed rulemaking announcing its intention to approve the Regulation. In the notice, the EPA concluded that the

Regulation complied with the Clean Air Act, that the

Board 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 pp.503-04.) The EPA provided thirty days

for the public to comment on its proposed approval of

the Regulation, but no comments were submitted. On

April 4, 2012, the EPA took final action approving the

Regulation as part of California’s SIP. (Id. at p.504.)

In May 2012, the parties in the trucking association

case filed a notice 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

App. 36

briefing on whether the EPA’s action affected the posture of the case. In December 2012, the district court

dismissed the case, finding that the EPA’s approval deprived it of subject matter jurisdiction under section

307(b)(1) [codified as § 7607(b)(1)] of the Clean Air Act.

(Ibid.)

The trucking association appealed, but the Ninth Circuit Court of Appeals affirmed the dismissal, concluding that the district court lacked jurisdiction. Although

the complaint on its face challenged the Regulation,

the Court concluded that the suit was, in effect, a challenge to the EPA’s approval of California’s SIP, which

may be filed only in the Court of Appeals under section

307(b)(1).1 (Ibid.)

In December 2013, an association of independent truck

operators called the “Owner-Operator Independent

Drivers Association” (OOIDA) and several individual

truckers filed suit in federal district court challenging

the Regulation on the ground that it violated the Commerce Clause. (Respondent’s Request for Judicial Notice, Exh. 2.) The Board filed a motion for judgment on

the pleadings, seeking dismissal because the district

court lacked jurisdiction over the action. Following the

reasoning in Dump Truck, the district court granted

the motion, with leave to amend, holding that the

1

Shortly after filing its appeal, the trucking association separately filed a petition in the Ninth Circuit Court of Appeals,

seeking review of the EPA’s approval of the Regulation. However,

the Ninth Circuit dismissed the petition as untimely because it

was not filed within sixty days of the EPA’s notice of final rule, as

required by section 307(b)(1) of the Clean Air Act. (Ibid.)

App. 37

Ninth Circuit Court of Appeals had exclusive jurisdiction over the claim. (Ibid.)

In October 2014, Petitioner Jack Cody, d/b/a Cody

Transport was issued a citation by the Board for violating the Regulation. OOIDA then filed a First

Amended Complaint in which it added Petitioner as a

plaintiff, asserting an “as applied” challenge to the

Regulation on Commerce Clause grounds. (Respondent’s Request for Judicial Notice, Exh. 3.) The Board

moved to dismiss the First Amended Complaint on the

same jurisdictional grounds as before. The district

court granted the motion to dismiss, without leave to

amend, as to the “facial” challenges to the Regulation,

but ordered Petitioner Cody’s “as applied” challenges

to be transferred to the Ninth Circuit Court of Appeals.

(Respondent’s Request for Judicial Notice, Exh. 1.)

In addition to joining the OOIDA action, Petitioner

timely appealed his citation to the Board, and requested an administrative hearing to challenge the

constitutionality of the Regulation. On June 3, 2015,

the Board denied Petitioner’s appeal, without a hearing.

On June 23, 2015, Petitioner filed the instant petition,

alleging that the Regulation violates the Commerce

Clause of the United States Constitution.

In October 2015, following the transfer of the “as applied” claims to the Ninth Circuit, the Board and the

EPA moved to dismiss claims based on the statute of

limitations set forth in section 307(b)(1) of the Clean

Air Act. (Respondent’s Request for Judicial Notice,

App. 38

Exhs. 4 & 5.) On January 27, 2016, the Ninth Circuit

issued an order granting the motion to dismiss. The

Court did not issue a written opinion, but cited section

307(b)(1) of the Clean Air Act and the Court’s prior decision in Dump Truck. (Respondent’s Request for Judicial Notice, Exh. 6.)

Request for Judicial Notice

Respondent Board’s Request for Judicial Notice and

Supplemental Request for Judicial Notice, both of

which are unopposed, are granted.

Discussion

Respondent Board moves for judgment on the pleadings on the ground the court lacks subject matter jurisdiction. The Board argues that because the

Regulation was approved by the EPA as part of California’s SIP, any challenges to the Regulation must be

filed in the appropriate federal appellate court, in accordance with section 307(b)(1) of the Clean Air Act.

Here, the federal district court afforded Petitioner the

opportunity to pursue his Commerce Clause claim by

transferring that claim to the Ninth Circuit Court of

Appeals, which subsequently dismissed that claim on

procedural grounds. The Board argues that Petitioner

should not be allowed to circumvent the Ninth Circuit’s ruling through a second suit in this court.

Petitioner opposes the motion, arguing that the Board

has failed to cite any California law to support its

App. 39

contention that this court lacks jurisdiction. Petitioner

attempts to distinguish Dump Truck and his previous

Ninth Circuit action on the grounds those cases did not

involve “prosecution” of him as a noncompliant truck

driver. According to Petitioner, the question presented

in this case is different: whether he may assert, as a

defense to prosecution, a constitutional challenge to

the validity of the Board’s Regulation. Petitioner asserts that to comply with due process, this question

must be answered in the affirmative.

The court rejects Petitioner’s arguments and agrees

with the Board. Due to the EPA’s approval of the Regulation as part of California’s SIP, Petitioner’s complaint effectively challenges the validity of the SIP, and

therefore it is the type of action to which section

307(b)(1) of the Clean Air Act applies.

This is the conclusion reached by the Ninth Circuit

Court of Appeals in Dump Truck and in Petitioner’s

own federal action against the Board. (See also Virginia v. United States (4th Cir. 1996) 74 F.3d 517, 522523.) The decisions of lower federal courts on federal

questions, although not binding on state courts, are

persuasive and entitled to great weight. (Barrett v.

Rosenthal (2006) 40 Cal.4th 33, 58.) Petitioner has

failed to cite any contrary federal or state authority.

Accordingly, the court is persuaded that, where the

EPA has approved a state regulation as part of a SIP,

a substantive challenge to the validity of the regulation is subject to the exclusive jurisdiction of the federal courts of appeal under section 307(b)(1) of the

App. 40

Clean Air Act, regardless of how the grounds for review

are framed by the plaintiff.

Because this court lacks jurisdiction, the timeliness of

Petitioner’s claims is not properly before the court. If

Petitioner disagrees with the Ninth Circuit’s decision

to dismiss his claim on timeliness grounds, his remedy

was to appeal the Ninth Circuit’s decision, not to pursue a separate action in state court. In any event, as

the Board correctly notes, section 307(b)(2) of the

Clean Air Act precludes judicial review of EPA actions

in civil or criminal enforcement proceedings if the challenged actions could have been reviewed under section

307(b)(1) within the usual sixty-day limitations period.

Despite Petitioner’s attempt to couch this lawsuit as

an “as applied” challenge to the Regulation, it is clear

that Petitioner is directly challenging the legal validity

of the Regulation on its face.

Petitioner’s remaining arguments are irrelevant and

lack merit.

Disposition

The motion for judgment on the pleadings is

GRANTED, without leave to amend.

In the event that this tentative ruling becomes the final ruling of the court, counsel for Respondent is directed to prepare a formal judgment, incorporating

this ruling as an exhibit; submit it to opposing counsel

for approval as to form; and thereafter submit it to the

court.

App. 41

This tentative ruling shall become the ruling of the

court unless a party desiring to be heard so advises

the clerk of this Department no later than 4:00 p.m.

on the court day preceding the hearing, and further

advises the clerk that such party has notified the

other side of its intention to appear. Any party desiring an official record of this proceeding shall make arrangements for reporting services with the clerk of

the department where the matter will be heard not

later than 4:30 p.m. on the day before the hearing. The

fee is $30.00 for civil proceedings lasting under one

hour, and $239.00 per half day for proceedings lasting

more than one hour. (Local Rule 1.12 and Government

Code § 68086.)

App. 42

Court of Appeal, Third Appellate District –

Nos. C082828, C083083

S249810

IN THE SUPREME COURT OF CALIFORNIA

En Banc

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

ALLIANCE FOR CALIFORNIA BUSINESS,

Plaintiff and Appellant,

v.

STATE AIR RESOURCES BOARD,

Defendant and Respondent.

-----------------------------------------------------------------JACK CODY, Plaintiff and Appellant,

v.

STATE AIR RESOURCES BOARD et al.,

Defendants and Respondents.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(Filed Aug. 15, 2018)

The petitions for review are denied.

CANTIL-SAKAUYE

Chief Justice

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.

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