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.