Petition for Writ of Certiorari — Alliance for California Business, Petitioner v. California Air Resources Board

Supreme Court briefNov 13, 2018

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No._______________

_________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

ALLIANCE FOR CALIFORNIA BUSINESS,

Petitioner,

STATE AIR RESOURCES BOARD,

Respondent,

____________________

On Petition for a Writ of Certiorari to the

Court of Appeal of the State of California,

Third Appellate District

_____________________

PETITION FOR WRIT OF CERTIORARI

_____________________

KARL OLSON (SBN 104760)

SUPREME COURT BAR NO. 187154

THERESE Y. CANNATA (SBN 88032)

ZACHARY E. COLBETH (SBN 297419)

AARON R. FIELD (SBN 310648)

CANNATA O’TOOLE FICKES & OLSON LLP

100 Pine Street, Suite 350

San Francisco, CA 94111

Tel: (415) 409-8900

Attorneys for Petitioner

QUESTION PRESENTED

Whether, under a provision of the Clean Air Act, 42

U.S.C. § 7607(b)(1), the inclusion of a state regulation

in an EPA-approved State Implementation Plan (“SIP”)

deprives state courts of their presumptive sovereign

jurisdiction to determine whether the regulation is

inconsistent with state law, where (a) 42 U.S.C.

§7607(b)(1) does not unambiguously withdraw

jurisdiction from state courts and (b) depriving state

courts of their jurisdiction to determine whether a state

regulation is inconsistent with state law would make the

regulation effectively immune to facial state law

challenges?

PARTIES TO THE PROCEEDING

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA, THIRD APPELLATE

DISTRICT

The Court of Appeal of the State of California,

Third Appellate District (“Court of Appeal”)

consolidated Petitioner Alliance for California

Business’s appeal with a separate case for purposes

of oral argument and decision. The two cases involve

overlapping parties. The parties are as follows:

Court of Appeal Case No. C082828

Plaintiff-Appellant:

Alliance for California Business

Defendants-Respondents:

State Air Resources Board

Mary D. Nichols

Richard Corey

Court of Appeal Case No. C083083

Plaintiff-Appellant:

Jack Cody

Defendants-Respondents:

State Air Resources Board

Richard W. Corey

Mary D. Nichols

Matt Rodriguez

RULE 29.6 STATEMENT

Petitioner Alliance for California Business has no

parent corporation, and no publicly held company

owns 10% or more of its stock.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

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

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

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

INTRODUCTION ...................................................... 1

OPINION BELOW..................................................... 5

JURISDICTION......................................................... 6

STATUTORY PROVISIONS INVOLVED ................ 6

STATEMENT OF THE CASE ................................. 16

REASONS FOR GRANTING THE PETITION ...... 20

A. The Presumption of Jurisdiction in State Courts

Can Only Be Rebutted by Clear and Unmistakable

Evidence That Congress Intended to Withdraw It,

and the Court of Appeal Erred by Finding Such

Evidence Here .......................................................... 20

B. The Presumption of Jurisdiction in State Courts

Is at Its Zenith Where Withdrawing Jurisdiction

Would Permit an Agency to Evade Judicial Review,

and the Court of Appeal Erred by Holding That

CARB Had Overcome It........................................... 31

CONCLUSION AND PRAYER FOR RELIEF ....... 32

APPENDIX............................................................... 35

APPENDIX TABLE OF CONTENTS .................... A-i

In the Supreme Court of California, En Banc, Denial

of Petitions for Review (S249810) ......................... A-1

Published Decision of the Court of Appeal of the

State of California, Third Appellate District (Alliance

for California Business v. State Resources Board, et

al., 23 Cal.App.5th 1050 (2018))............................ A-3

Order on Motion for Judgment on the Pleadings,

Alliance for California Business v. State Resources

Board, et al., Superior Court of the State of

California in and for the County of Glenn, Case No.

13CV01232 ........................................................... A-28

Ruling on Motion for Reconsideration, Alliance for

California Business v. State Resources Board, et al.,

Superior Court of the State of California in and for

the County of Glenn, Case No. 13CV01232 ........ A-38

Notice of Entry of Judgment in Favor of Defendants,

Alliance for California Business v. State Resources

Board, et al., Superior Court of the State of

California in and for the County of Glenn, Case No.

13CV01232 ........................................................... A-64

Third Amended Complaint for Declaratory Relief

(Code of Civ. Proc. §1060; and Gov’t Code §11350),

Alliance for California Business v. State Resources

Board, et al., Superior Court of the State of

California in and for the County of Glenn, Case No.

13CV01232 ........................................................... A-68

TABLE OF AUTHORITIES

CASES

Alliance for Cal. Business v. State Air Resources

Board

(2018) 23 Cal.App.5th 1050.................................. 5

Bowen v. Mich. Academy of Family Physicians

(1986) 476 U.S. 667 .................................... 4, 5, 31

Cal. Dump Truck Owners Assn. v. Nichols

(9th Cir. 2015) 784 F.3d 500 ...................... passim

Clean Water Action Council of Northeastern

Wisconsin, Incorporated v. EPA

(7th Cir. 2014) 765 F.3d 749 .............................. 28

Erie Railroad v. Tompkins

(1938) 304 U.S. 64 .............................................. 21

Gulf Offshore Company v. Mobil Oil Corporation

(1981) 453 U.S. 473 ........................................ 2, 20

Hartford Underwriters Insurance Company v. Union

Planters Bank, N.A.

(2000) 530 U.S. 1 ................................................ 21

Havens Realty Corporation v. Coleman

(1982) 455 U.S. 363 ............................................ 18

Indiana and Michigan Electric Company v. EPA

(7th Cir. 1975) 509 F.2d 839 .......................... 2, 27

Indiana Environmental Management Board v.

Indiana-Kentucky Elec. Corporation

(1979) 181 Ind.App. 570 ..................................... 28

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

Public Employment Relations Board

(2011) 51 Cal.4th 259 ..................................... 4, 31

NAACP v. Button

(1963) 371 U.S. 415 ............................................ 18

Sierra Club v. Indiana-Kentucky Elec. Corporation

(7th Cir. 1983) 716 F.2d 1145 ............ 2, 28, 29, 30

TRW Incorporated v. Andrews

(2001) 534 U.S. 19 .............................................. 22

Tafflin v. Levitt

(1990) 493 U.S. 455 ........................................ 2, 20

Western Oil and Gas Association v. EPA

(9th Cir. 1980) 633 F.2d 803 .................. 28, 29, 30

United States v. Ron Pair Enterprises, Incorporated

(1989) 489 U.S. 235 ............................................ 22

STATUTES

28 U.S.C. § 1257(a) .................................................... 6

40 C.F.R. Part 52 ..................................................... 19

42 U.S.C. § 7407 ....................................................... 29

42 U.S.C. § 7407(d) .................................................... 3

42 U.S.C. § 7407(d)(5) .............................................. 29

42 U.S.C. § 7410 ......................................................... 3

42 U.S.C. § 7410(a) ...................................... 19, 23, 31

vii

42 U.S.C. § 7410(a)(2)(E) ..................................... 3, 23

42 U.S.C. § 7410(k)(3) .............................................. 19

42 U.S.C. § 7607 ............................................. 3, 29, 30

42 U.S.C. § 7607(b) .......................................... passim

42 U.S.C. § 7607(b)(1) ...................................... passim

Cal. Code Civ. Proc. § 1060........................................ 6

Cal. Code Regs., tit. 13, § 2025 ............................ 1, 16

Cal. Code Regs., tit. 13, § 2025(b) ....................... 7, 26

Cal. Code Regs., tit. 13, § 2025(d)(18) ................. 7, 26

Cal. Code Regs., tit. 13, § 2025(d)(35) ................. 7, 26

Cal. Code Regs., tit. 13, § 2025(d)(60) ................. 7, 26

Cal. Code Regs., tit. 13, § 2025(e).................. 7, 15, 26

Cal. Code Regs., tit. 13, § 2025(e)(2) ......................... 9

Cal. Code Regs., tit. 13, § 2025(e)(5) ......................... 9

Cal. Code Regs., tit. 13, § 2025(f) ........................ 9, 26

Cal. Code Regs., tit. 13, § 2025(g) ............... 10, 14, 26

Cal. Code Regs., tit. 13, § 2025(h) ..................... 10, 11

Cal. Code Regs., tit. 13, § 2025(i) ................ 10, 11, 14

Cal. Code Regs., tit. 13, § 2025(j) ...................... 10, 11

viii

Cal. Code Regs., tit. 13, § 2025(j)(1) ........................ 11

Cal. Code Regs., tit. 13, § 2025(j)(3) ........................ 11

Cal. Code Regs. tit. 13, § 2025(k) ............................ 12

Cal. Code Regs., tit. 13, § 2025(l) ............................ 10

Cal. Code Regs., tit. 13, § 2025(l)(1) ........................ 10

Cal. Code Regs., tit. 13, § 2025(l)(2) ........................ 10

Cal. Code Regs., tit. 13, § 2025(l)(3) ........................ 10

Cal. Code Regs., tit. 13, § 2025(l)(4) ........................ 10

Cal. Code Regs., tit. 13, § 2025(m) ........ 10, 11, 13, 15

Cal. Code Regs., tit. 13, § 2025(p) ............... 10, 11, 15

Cal. Code Regs., tit. 13, § 2025(p)(1) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(2) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(3) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(4) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(5) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(6) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(7) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(8) ....................... 13

Cal. Code Regs., tit. 13, § 2025(p)(9) ................. 13, 16

Cal. Code Regs., tit. 13, § 2025(p)(10) ..................... 13

Cal. Code Regs. tit. 13, § 2025(q)(5) ........................ 18

Cal. Code Regs. tit. 13, § 2025(r) ..................... passim

Cal. Code Regs. tit. 13, § 2025(s) ..................... passim

Cal. Code Regs. tit. 13, § 2025(x) .............................. 8

Cal. Code Regs., tit. 13, § 2700-2711................... 8, 20

Cal. Gov. Code § 11350(a) .......................................... 6

Cal. Veh. Code § 24002 ............................................ 18

Cal. Veh. Code § 24002(a).................................... 1, 17

OTHER AUTHORITIES

A. Hamilton, The Federalist No. 82 .......................... 2

B. Schwartz, Administrative Law (2d ed. 1984) . 4, 31

INTRODUCTION1

This case is an opportunity to settle an important

question of law regarding the balance of power

between state and federal governments in our

nation.

In its operative complaint, petitioner Alliance for

California Business (“Alliance”) alleges that

California’s Truck and Bus Regulation, Cal. Code

Regs., tit. 13, § 2025, is not lawful and should be

enjoined to the extent that it requires certain

vehicles to be equipped with diesel particulate filter

(“DPF”) devices. DPF devices damage engines, cause

engine fires, and make vehicles unsafe to operate on

California roads. The Alliance alleged that the

Truck and Bus Regulation conflicts with state safety

laws to the extent that it requires vehicle owners and

operators to use DPF devices. See Cal. Veh. Code §

24002(a) (“It is unlawful to operate any vehicle or

combination of vehicles which is in an unsafe

condition, or which is not safely loaded, and which

presents an immediate safety hazard.”).

The California Court of Appeal, Third District,

held that a provision of the federal Clean Air Act

(“CAA”), 42 U.S.C. § 7607(b)(1), deprived the state

courts of jurisdiction over all state law-based

challenges to the Truck and Bus Regulation, because

California

Air

Resources

Board

(“CARB”)

promulgates the Truck and Bus Regulation as part of

a State Implementation Plan (“SIP”) under the CAA,

which the Environmental Protection Agency (“EPA”)

approved.

Petitioner Alliance for California Business joins in the

arguments of Petitioner Jack Cody in his separate, concurrently

filed Petition for Writ of Certiorari seeking review of the

decision below.

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The Court of Appeal has misinterpreted 42 U.S.C.

§ 7607(b)(1) and rendered a decision that conflicts

with federal appellate case law. See Indiana &

Michigan Electric Company v. EPA, 509 F.2d 839,

847 (7th Cir. 1975); Sierra Club v. Indiana-Kentucky

Elec. Corp., 716 F.2d 1145, 1148-55 (7th Cir. 1983).

If this Court permits this ruling to take root in

California, the effect will be to undermine the

presumptive power of state courts to adjudicate state

law claims, which has long been a hallmark of our

federalist system.

First, the Court of Appeal undervalued the

presumption of concurrent jurisdiction. From the

inception of our system of government, unlike federal

courts, state courts have had “jurisdiction in all cases

arising under the laws of the Union” where

jurisdiction is not “expressly prohibited.” Alexander

Hamilton, The Federalist No. 82. Even in matters

that arise under federal law, state courts are

presumed to have concurrent jurisdiction with

federal courts, and “the presumption . . . can be

rebutted by an explicit statutory directive, by

unmistakable implication from legislative history, or

by a clear incompatibility between state-court

jurisdiction and federal interests.” Gulf Offshore Co.

v. Mobil Oil Corp., 453 U.S. 473, 478 (1981). It

“takes an affirmative act of power under the

Supremacy Clause to oust the States of jurisdiction –

an exercise of what one of our earliest cases referred

to as ‘the power of congress to withdraw’ federal

claims from state-court jurisdiction.”

Tafflin v.

Levitt, 493 U.S. 455, 470 (1990) (internal citations

omitted, emphasis in original). This presumption

applies to state law challenges to state agency

actions. But the Court of Appeal all but disregarded

it here. The Court of Appeal held that the CAA’s

language is clear enough about withdrawing state

-2-

court jurisdiction to rebut this presumption, even

though it conceded that the CAA “is silent regarding

the jurisdiction of state courts.” Appendix (“App.”) A15.

The language of the CAA verifies that the Court

of Appeal erred. Under the CAA, a “petition for

review of action of the [EPA] Administrator [in

approving a SIP] . . . may be filed only in the United

States Court of Appeals for the appropriate circuit . .

. within sixty days from the date notice of such

promulgation, approval, or action appears in the

Federal Register.” 42 U.S.C. § 7607(b)(1). The Court

of Appeal held that 42 U.S.C. § 7607(b)(1) requires

that all state law challenges to a regulation approved

by the EPA Administrator as part of a SIP be

brought in a federal court of appeals. But 42 U.S.C.

§ 7607(b)(1) only allows federal courts of appeals to

review the decision to approve a SIP, and that

decision does not hinge on a substantive analysis of

whether the SIP, or any part of it, complies with

state law. See 42 U.S.C. §§ 7410, 7607. In deciding

whether to approve a SIP, the EPA Administrator

does not consider whether the SIP is actually

consistent with state law. See 42 U.S.C. § 7410.

Instead, the EPA Administrator assesses whether

the promulgating state agency has made sufficient

“assurances that the State . . . is not prohibited by

any provision of Federal or State law from carrying

out such implementation plan[.]” See, e.g., 42 U.S.C.

§ 7410(a)(2)(E) (emphasis added); see also W. Oil &

Gas Ass’n v. EPA, 633 F.2d 803, 813-14 & n.13 (9th

Cir. 1980) (holding that a Ninth Circuit challenge to

air quality standards for pollutants, which the EPA

Administrator approved under 42 U.S.C. section

7407(d), may raise only issues that were actually

before the EPA Administrator, and acknowledging

that the standards at issue could be challenged in

-3-

state court if they violated state law). The Court of

Appeal’s decision departed from other federal

appellate decisions that invited – and, in at least one

case, affirmed – state law challenges to EPAapproved regulations under the CAA.

Second, the Court of Appeal improperly read out

of existence the Alliance’s presumptive right to

obtain judicial review of its claims.

In both

California and this Court, courts favor interpreting

the law in a manner that subjects agency actions to

judicial review – state courts hold that to make an

agency’s action unreviewable, the Legislature “have

expressly so provided or otherwise clearly indicated

such an intent.” Int’l Ass’n of Fire Fighters, Local

188, AFL-CIO v. Pub. Employment Relations Bd., 51

Cal.4th 259, 270 (2011); see also Bowen v. Mich.

Academy of Family Physicians, 476 U.S. 667, 670-73

& n.3 (1986) (“ ‘The responsibility of enforcing the

limits of statutory grants of authority is a judicial

function; . . . [w]ithout judicial review, statutory

limits would be naught but empty words.’ ”) (quoting

B. Schwartz, Administrative Law (2d ed. 1984) § 8.1,

p. 436). As one author who this Court quoted with

approval explained decades ago:

“An agency is not an island entire of itself. It is

one of the many rooms in the magnificent

mansion of the law. The very subordination of

the agency to judicial jurisdiction is intended

to proclaim the premise that each agency is to

be brought into harmony with the totality of

the law, the law as it is found in the statute at

hand, the statute book at large, the principles

and conceptions of the ‘common law,’ and the

ultimate guarantees associated with the

Constitution. . . .”

-4-

Bowen, 476 U.S. at 672 n.3 (quoting L. Jaffe,

Judicial Control of Administrative Action (1965), at

p. 327). If the Court of Appeal’s decision is permitted

to stand, it will empower CARB, and other similarly

situated state agencies around the nation, to

automatically defeat state law and federal

constitutional challenges to SIP regulations, because

no court will have jurisdiction over them.

Judicial review of the Truck and Bus Regulation’s

consistency with California’s safety laws illustrates

why a right to seek judicial review of agency actions

is so important. The Alliance’s allegations, which

should be accepted as true, set forth the serious

dangers of DPF devices that CARB is requiring its

members to use under the Truck and Bus

Regulation: they destroy engines, cause fires, and

endanger those who operate them. Without judicial

review, the Alliance will be deprived of the right to

test the Alliance’s claims before an independent

branch of government.

OPINION BELOW

The Judgment of the Superior Court of the State

of California, County of Glenn, was entered on

August 1, 2016. The Opinion of the California Court

of Appeal, Third District, is reported as Alliance for

Cal. Bus. v. State Air Res. Bd., 23 Cal. App. 5th 1050

(2018), and was filed on May 29, 2018. The Supreme

Court of California denied review on August 15,

2018.

The Superior Court’s judgment is included at

App. A64-A67. The Court of Appeal’s decision is

included at App. A3-A27. The Supreme Court of

California’s denial of review is included at App. A1A2.

-5-

JURISDICTION

The Order of the Supreme Court of California

denying review was entered on August 15, 2018.

App. A1. The published decision of the California

Court of Appeal, Third District, was entered on May

29, 2018. App. A2-A25. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(a).

STATUTORY PROVISIONS INVOLVED

Cal. Code Civ. Proc. § 1060

“Any person . . . who desires a declaration of his

or her rights or duties with respect to another, or in

respect to, in, over or upon property . . . may, in cases

of actual controversy relating to the legal rights and

duties of the respective parties, bring an original

action or cross-complaint in the superior court for a

declaration of his or her rights and duties in the

premises, including a determination of any question

of construction or validity arising under the

instrument or contract. He or she may ask for a

declaration of rights or duties, either alone or with

other relief; and the court may make a binding

declaration of these rights or duties, whether or not

further relief is or could be claimed at the time. The

declaration may be either affirmative or negative in

form and effect, and the declaration shall have the

force of a final judgment. The declaration may be had

before there has been any breach of the obligation in

respect to which said declaration is sought.”

Cal. Gov. Code § 11350(a)

“Any interested person may obtain a judicial

declaration as to the validity of any regulation or

-6-

order of repeal by bringing an action for declaratory

relief in the superior court in accordance with the

Code of Civil Procedure.”

Cal. Veh. Code § 24002(a)

“It is unlawful to operate any vehicle or

combination of vehicles which is in an unsafe

condition, or which is not safely loaded, and which

presents an immediate safety hazard.”

42 U.S.C. § 7607(b)(1) (a provision of the Clean Air

Act)

“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 chapter . . . which is

locally or regionally applicable may be filed only in

the United States Court of Appeals for the

appropriate circuit.”

Cal. Code Regs., tit. 13, § 2025 (b), (d)(18), (d)(35),

(d)(60), (e)-(g).

“§ 2025. Regulation to Reduce Emissions of Diesel

Particulate Matter, Oxides of Nitrogen and Other

Criteria Pollutants, from In-Use Heavy-Duty DieselFueled Vehicles.

...

(b) Scope and Applicability

Except as provided in subsection (c), this regulation

applies to any person, business, federal government

agency, school district or school transportation

provider that owns or operates, leases, or rents,

affected vehicles that operate in California. The

regulation also applies to persons that sell affected

-7-

vehicles in California and those described in section

2025(x). Affected vehicles are those that operate on

diesel-fuel, dual-fuel, or alternative diesel-fuel that

are registered to be driven on public highways, were

originally designed to be driven on public highways

whether or not they are registered, yard trucks with

on-road engines or yard trucks with off-road engines

used for agricultural operations, both engines of twoengine sweepers, schoolbuses, and have a

manufacturer's gross vehicle weight rating (GVWR)

greater than 14,000 pounds (lbs).

...

(d) Definitions

For purposes of this regulation, the following

definitions apply:

...

(18) “Diesel Particulate Filter” means an emission

control technology that reduces diesel particulate

matter emissions by directing the exhaust through a

filter that physically captures particles but permits

gases to flow through. Periodically, the collected

particles are either physically removed or oxidized

(burned off) in a process called regeneration.

...

(35) “Highest Level VDECS” means the highest level

VDECS verified by ARB under its Verification

Procedure, Warranty and In-Use Compliance

Requirements for In-Use Strategies to Control

Emissions from Diesel Engines (Verification

Procedure), title 13, CCR, sections 2700-2710, for a

specific engine as of 10 months prior to the

compliance date, which the diesel emission-control

strategy manufacturer and authorized diesel

emission-control strategy dealer agree can be used on

a specific engine and vehicle combination without

jeopardizing the original engine warranty in effect at

the time of application.

-8-

(A) The highest level VDECS is determined solely on

verified diesel PM reductions. Plus designations do

not affect the diesel PM level assigned to a VDECS;

that is, a Level 3 Plus is the same diesel PM level as

Level 3.

(B) A Level 2 VDECS shall not be considered the

highest level VDECS as long as a Level 3 VDECS

can be retrofitted on a vehicle in the fleet.

VDECS for the purpose of this regulation.

...

(60) “Verified Diesel Emission Control Strategy”

(VDECS) means an emissions control strategy,

designed primarily for the reduction of diesel PM

emissions, which has been verified pursuant to the

Verification Procedures. VDECS can be verified to

achieve Level 1 diesel PM reductions (25 percent),

Level 2 diesel PM reductions (50 percent), or Level 3

diesel PM reductions (85 percent). VDECS may also

be verified to achieve NOx reductions. See also

definition of highest level VDECS.

...

(e) General Requirements

Beginning with the applicable effective dates, a fleet

owner must comply with the following requirements

of this regulation:

(1) Except as otherwise provided below for specific

classifications in sections 2025(e)(2) through

2025(e)(5), fleets must meet the following compliance

schedule:

(A) Starting January 1, 2015, fleets must meet the

requirements of section 2025(f) for all vehicles with a

GVWR 26,000 lbs or less except for school buses.

(B) Starting January 1, 2012, for all vehicles with a

GVWR greater than 26,000 lbs, excluding school

buses, fleets must meet the requirements of section

-9-

2025(g) or fleets that report may instead comply with

the phase-in option of section 2025(i).

greater than 14,000 lbs may utilize the small fleet

compliance option of section 2025(h) for vehicles with

a GVWR greater than 26,000 lbs.

(2) Beginning January 1, 2012, fleets with school

buses must comply with the requirements of section

2025(k) for all school buses in the fleet.

(3) Beginning January 1, 2021, all private utility

vehicle owners must comply with the requirements of

section 2025(l)(4).

(4) Beginning January 1, 2023 drayage trucks must

comply with the requirements of section 2025(l)(1)

through (3).

(5) All fleets may utilize the credit provisions of

section 2025(j), the provisions of agricultural vehicles

and log trucks of section 2025(m), the compliance

options for work trucks, vehicles operating

exclusively in the NOx exempt areas, or any of the

other extensions, delays, and exemptions of section

2025(p).

(6) If some of the vehicles within the fleet are under

the control of different responsible officials because

they are part of different subsidiaries, divisions, or

other organizational structures of a company or

agency, the fleet owner may elect to have the vehicles

that are under the control of different responsible

officials report and comply independently of other

vehicles in the fleet owner's general fleet if choosing

to comply with the requirements of section 2025(g) or

the phase-in option of section 2025(i) for the segment

of the fleet under the control of the different

responsible officials. However, all vehicles owned by

the fleet owner must be reported for the fleet to use

the credits for fleets that have downsized in section

- 10 -

2025(j)(1), or the credits for the early addition of

newer vehicles in section 2025(j)(3).

(7) Except personal, non-commercial, unregistered

motor vehicles, or vehicles otherwise not required to

obtain authority to operate, the following is required

for all fleet owners who elect to utilize the phase-in

option of section 2025(i) and the small fleet option of

section 2025(h), the credit provisions of section

2025(j) for early PM retrofits, early addition of newer

vehicles, advanced technology vehicles, alternative

fueled vehicles, and vehicles with heavy-duty pilot

ignition engines, the agricultural vehicle provisions

of section 2025(m), or the exemptions, delay, and

extensions of section 2025(p):

(A) A valid California motor carrier of property

number; or

(B) A valid identification number assigned by the

United States Secretary of the Department of

Transportation; or

Public Utilities Commission; or

(D) Other applicable valid operating authority

number approved by the Executive Officer.

(8) All information specified in section 2025(r) must

be reported to the Executive Officer.

(9) Records must be kept as specified in section

2025(s).

(10) Once a vehicle is required to be in compliance

with this regulation, it must remain in compliance at

all times that it is operating in California. Once a

vehicle has a PM retrofit installed, it may not be

removed unless approved by the Executive Officer.

(11) If the calculated number of engines required to

be brought into compliance with a percentage for any

compliance option, and the result is not equal to a

whole number, the number shall round up to a whole

number when the fractional part of the required

- 11 -

number of engines is equal to or greater than 0.5,

and round down if less than 0.5.

(12) In cases where public funds contributed to the

purchase of the vehicle, repower of the engine, or

retrofit of the engine, the vehicle will not be counted

when determining compliance with PM BACT during

the period that the funding program does not allow

the vehicle to be counted towards compliance, unless

allowed by the funding program guidelines

applicable to the particular source of public funds

used for the purchase, nor shall the engine be

included in the total fleet for purposes of determining

the percent of the fleet that is complying with PM

BACT.

(f) Engine Model Year Schedule Requirements for

Lighter Vehicles

Fleets owners must comply with the schedule in

Table 1 for all the lighter vehicles in the fleet and

meet the record keeping requirements of section

2025(s). Fleet owners do not need to meet the

reporting requirements of section 2025(r). School

buses are not subject to the requirements of this

subsection and must meet the requirements of

section 2025(k).

(1) Except as provided in (3) below, all lighter

vehicles must be equipped with a 2010 model year

emission equivalent engine pursuant to the following

schedule in Table 1:

Table 1: Compliance Schedule by Engine Model Year

for Vehicles with a GVWR 26,000 lbs or less

Compliance Date

as of January 1

Existing Engine

Model Year

2015

2016

1995 & older

1996

- 12 -

Requirements

2017

2018

1997

1998

2019

2020

2021

2022

2023

1999

2003 & older

2004-2006

N/A

All engines

2010 model year

emission equivalent

(2) Any engine that meets PM BACT prior to

January 1, 2014, does not have to be upgraded to a

2010 model year emissions equivalent engine until

January 1, 2023 as long as the vehicle remains in the

fleet, The fleet owner must meet the reporting and

record keeping requirements of sections 2025(r) and

2025(s) for all lighter vehicles in the fleet no later

than January 31, 2015.

(3) Fleet owners that comply with Table 1 for some

trucks in the fleet may also use the provisions for

agricultural vehicles in section 2025(m) or any of the

exemptions, delays, and extensions of section

2025(p)(1) through (7) for other lighter trucks in the

fleet. Sections 2025(p)(8), 2025(p)(9), and 2025(p)(10)

only apply to heavier trucks.

(4) Fleet owners can limit the number of

replacements required by Table 1 each year provided

the following conditions are met:

(A) The fleet complies with the prior year

requirements and the number of lighter trucks in the

fleet has not increased since January 1, of the prior

year.

(B) At least 2 lighter vehicles and more than 25

percent of the lighter vehicles in the fleet as of

January 1 of the prior year, have been retired and

replaced with 2010 model year equivalent engines by

January 1 of the current year.

- 13 -

lighter vehicles that were in the fleet as of January 1

of the compliance year and the prior year. Owners

must meet the reporting and record keeping

requirements of section 2025(r) and (s) to use this

option.

(g) Engine Model Year Requirements for Heavier

Vehicles

Fleet owners must comply with the schedule in Table

2 for all heavier vehicles in the fleet and must

comply with the record keeping requirements of

section 2025(s). Fleet owners are not required to

meet the reporting requirements of section 2025(r). A

fleet may meet PM BACT by installing the highest

level VDECS or by having an engine equipped with

an OEM diesel particulate filter. A fleet may meet

the 2010 model year emissions equivalent engine

requirement by replacing the engine or vehicle with

one with a 2010 model year engine or later,

retrofitting the engine with a VDECS that achieves

2010 model year equivalent emissions, or by

replacing a vehicle with one that has a future

compliance deadline. Fleet owners may alternatively

choose to comply using the phase-in option of section

2025(i) or as specified in 2025(g)(3) below.

(1) Starting January 1, 2012, all heavier vehicles in

the fleet must meet PM BACT and upgrade to a 2010

model year emissions equivalent engine pursuant to

the schedule set forth in Table 2 below.

Table 2: Compliance Schedule by Engine Model Year

for Vehicles with GVWR greater than 26,000 lbs

Engine

Model

Year

Compliance Date

Install PM Filter by

- 14 -

Compliance Date

2010 Engine by

1993 & older

N/A

January 1, 2015

1994 – 1995

N/A

January 1, 2016

1996 – 1999 January 1, 2012

January 1, 2020

2000 – 2004 January 1, 2013

January 1, 2021

2005 – 2006 January 1, 2014

January 1, 2022

2007 or newer January 1, 2014 January 1, 2023

if not OEM equipped

(2) A 2007 model year emissions equivalent engine

complies with the BACT requirements until January

1, 2023.

(3) From January 1, 2012 until January 1, 2014, any

fleet may optionally choose to meet PM BACT

according to the following:

(A) 2003-2004 model year engines and 1993 model

year and older engines by January 1, 2012.

(B) 2005-2006 model year engines and 1994-1999

model year engines by January 1, 2013.

(D) After January 1, 2014, this option expires and

the fleet must comply with general requirements of

section 2025(e).

(E) Fleet owners choosing this option must comply

with the reporting and record keeping requirements

of sections 2025(r) and (s).

(4) Any engine with a diesel particulate filter that

meets PM BACT prior to January 1, 2014, does not

have to be upgraded to a 2010 model year emissions

equivalent engine until January 1, 2023 as long as

the vehicle remains in the fleet. Fleet owners must

comply with the reporting and record keeping

requirements of sections 2025(r) and (s) and report

no later than January 31, 2015 for all of the heavier

vehicles in the fleet.

(5) Fleet owners may utilize the exemptions and

extensions of sections 2025(p) and 2025(m) for

heavier vehicles.

- 15 -

(6) Fleet owners may use the extension based on the

unavailability of highest level VDECS of section

2025(p)(9) for 1996 model year or newer engines.

(7) Fleet owners can limit the number of

replacements required by Table 2 each year provided

the following conditions are met:

(A) The fleet complies with the prior year

requirements and the number of heavier trucks in

the fleet has not increased since January 1, of the

prior year.

(B) At least 2 heavier vehicles and more than 25

percent of the heavier vehicles in the fleet as of

January 1 of the prior year, have been retired and

replaced with 2010 model year equivalent engines by

January 1 of the current year.

heavier vehicles that were in the fleet as of January

1 of the compliance year and the prior year. Owners

must meet the reporting and record keeping

requirements of section 2025(r) and (s) to use this

option.

STATEMENT OF THE CASE

The Truck and Bus Regulation, Cal. Code Regs.,

tit. 13, § 2025, provides that certain commercial

motor vehicles in California must comply with

certain emissions standards, and must equip Verified

Diesel Emission Control Systems (“VDECS”)

identified and approved by CARB. Individuals and

businesses that are members of the Alliance – and

thousands of other individuals and businesses in

California and elsewhere – must retrofit their

vehicles with expensive and dangerous DPF devices

to meet these standards, or face substantial penalties

and fines imposed by CARB.

- 16 -

DPFs are inherently damaging to the engines of

the vehicles that equip them and, in some instances,

extremely dangerous to persons and property. Over

time, particulate matter accumulates on DPFs,

which increases pressure in the engine, degrades

engine components, generates extreme heat in the

engine, and causes fires both in and around the

engine. App. A73-A78, A81-A84. This increased

pressure and heat can cause “de-rating” – a sudden,

dramatic decrease in an engine’s horsepower – while

a DPF-equipped vehicle is in transit.

Id. To

periodically dispel accumulated particulate matter,

DPFs rely on a process called “regeneration,” which

superheats the DPF to approximately 1100 degrees

to 1400 degrees Fahrenheit and expels particulate

buildup from the exhaust system, which CARB

warns can cause fires if regeneration occurs close to

flammable materials, such as roadside vegetation.

App. A73-A78, A81-A84. DPF-equipped vehicles

often have sensors installed that are meant to alert

drivers to excessive particulate buildup and direct

them to initiate the regeneration process, but those

sensors often fail, due to the heat and pressure that

DPFs cause. App. A73-A75. The DPFs have caused

engine malfunctions and failures throughout

California, as well as fires that destroy the vehicle

and can damage nearby property. App. A73-A78,

A81-A84. By requiring that DPF devices be equipped

by certain commercial vehicles, CARB has

endangered their operators, all of the citizens who

drive on California’s public roads, and property

owners who live alongside them. App. A73-A78, A81A88, A94-A97.

The Alliance promotes business interests

throughout California. App. A9. Its membership

includes truck owners and operators subject to the

Regulation, as well as various other individuals, such

- 17 -

as small to mid-sized business owners, farmers, and

ranchers who rely upon affordable, reliable and safe

transportation of their commercial and agricultural

products. App. A9, A69-70. The Alliance sued

CARB, its chair, and executive officer based on,

among other things, the serious safety problems

presented by the mandated installation and use of

DPF devices on heavy duty diesel engines. App. A9.

The only cause of action of the Alliance at issue seeks

a declaration that the Regulation, and the related

Verification Procedure, to the extent that either

requires the installation of a DPF device, are

inconsistent with the safety requirements in, inter

alia, California Vehicle Code section 24002. App. A9,

A69-A70, A93.

In the trial court, CARB moved for judgment on

the pleadings on the grounds that the regulations

contained an exemption procedure that the Alliance

should have, but failed to, avail itself of, and that the

trial court lacked jurisdiction due to a failure to

exhaust administrative remedies.2 App. A10. The

trial court granted the motion on different grounds,

concluding that: “Alliance failed to state a legally

sufficient cause of action because the Regulation and

Verification Procedure, ‘by their express terms,’

2 The trial court rightly declined to rule on this issue, because

the exemption procedure under section 2025(q)(5) is available

only to truck owners. Cal. Code Regs., tit. 13, § 2025 (q)(5)

(explaining that the regulation applies to “fleet owner[s]”

looking to “install[] or operate[]” a retrofit DPF). Thus, a large

number of the Alliance’s members as well as the Alliance itself

are ineligible for the remedy potentially offered by section

2025(q)(5). See Cal. Code Regs. tit. 13, § 2025(q)(5); App. A68A71, A96-A98; see, e.g., Havens Realty Corp. v. Coleman, 455

U.S. 363, 378-79 (1982) (holding that organization had standing

to seek to redress harm it had suffered directly); NAACP v.

Button, 371 U.S. 415, 428 (1963) (holding that organization had

standing to seek to redress harm to itself and its members).

- 18 -

negate the allegations in the complaint and do not

place Alliance’s members in the position of violating

health and safety laws’ ” – a line of reasoning that

CARB itself would later disavow on appeal. App.

A10. The Alliance appealed, and the Court of Appeal

consolidated the Alliance’s appeal with Cody’s and

affirmed the trial court in both cases based solely on

a completely different, dark horse jurisdictional

argument – namely, that that the CAA had

eliminated the subject matter jurisdiction of the state

courts of California over this case. App. A10, A14A25.

The principal statutory pillar of the Court of

Appeal’s decision is section 307(b) of the CAA, which

is codified at 42 U.S.C. section 7607(b). Under the

CAA, each state is required to submit to the

Environmental Protection Agency (“EPA”) a State

Implementation Plan (“SIP”) detailing how the state

intends to implement, maintain, and enforce national

ambient air quality standards. See 42 U.S.C. §

7410(a). The EPA is required to approve any SIP

that meets minimum criteria that are meticulously

set forth in the statute. 42 U.S.C. § 7410(k)(3); 40

C.F.R. Part 52. Pursuant to 42 U.S.C. § 7607(b)(1),

A petition for review of action of the [EPA]

Administrator [in approving a SIP] . . . may be

filed only in the United States Court of

Appeals for the appropriate circuit . . . within

sixty days from the date notice of such

promulgation, approval, or action appears in

the Federal Register.

The Court of Appeal held that this means “section

307(b)(1) vests exclusive and original jurisdiction

over th[is] challenge[] to the Regulation incorporated

and approved as part of California’s SIP in the Ninth

- 19 -

Circuit Court of Appeals.” App. A6. Under the Court

of Appeal’s decision, this jurisdictional preemption

extends to not only challenges to the Truck and Bus

Regulation, but also challenges to other related and

even subsequently added or amended regulations,

such as the Verification Procedure set forth in

California Code of Regulations, title 13, sections

2700-2711, that “flow[] from the Regulation.” App.

A26.

REASONS FOR GRANTING THE PETITION

A. The Presumption of Jurisdiction in State

Courts Can Only Be Rebutted by Clear and

Unmistakable Evidence That Congress

Intended to Withdraw It, and the Court of

Appeal Erred by Finding Such Evidence

Here

Under our federalist system of government, states

and their judicial systems have inherent general

jurisdiction to hear disputes arising under the laws

of the United States, including challenges to the

Truck and Bus Regulation like the Alliance’s that are

based on state law. “ ‘[I]f exclusive jurisdiction be

neither express nor implied, the State courts have

concurrent jurisdiction whenever, by their own

constitution, they are competent to take it.’ ” Tafflin,

493 U.S. at 459 (internal citation omitted). “The

presumption of concurrent jurisdiction can be

rebutted by an explicit statutory directive, by

unmistakable implication from legislative history, or

by a clear incompatibility between state-court

jurisdiction and federal interests.” Gulf Offshore Co.,

453 U.S. at 478.

That is consistent with federal courts’ repeated

recognition of the compelling comity and federalism

- 20 -

interests in allowing state courts to decide state law

questions. In Erie Railroad v. Tompkins, 304 U.S.

64, 78-79 (1938), this Court embraced Justice Field’s

presentation of these interests:

[T]he Constitution of the United States . . .

recognizes and preserves the autonomy and

independence of the States — independence in

their legislative and independence in their

judicial departments. Supervision over either

the legislative or the judicial action of the

States is in no case permissible except as to

matters by the Constitution specifically

authorized or delegated to the United States.

Any interference with either, except as thus

permitted, is an invasion of the authority of

the State and, to that extent, a denial of its

independence.

The Court of Appeal misconstrued 42 U.S.C.

section 7607(b), which is not and cannot be read as a

clear and unmistakable statutory directive that

California courts cannot adjudicate state law

challenges to the Regulation like Petitioner’s. 42

U.S.C. section 7607(b) does not – and cannot, without

being read in a way that is contrary to its plain

language, arbitrary, and unreasonable – limit

jurisdiction in the manner that the Court of Appeal

has stated.

To ascertain whether 42 U.S.C. section 7607(b)

withdraws the jurisdiction of California courts to

hear this case with sufficiently unmistakable clarity,

the Court should employ its well-established

framework for statutory interpretation. It is

axiomatic that “when the statute’s language is plain,

the sole function of the courts . . . is to enforce it

according to its terms.” Hartford Underwriters Ins.

- 21 -

Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6

(2000) (citations and internal quotation marks

omitted). However, even if the language is clear, it

should not be given a literal meaning if doing so

would result in absurd consequences which the

Legislature did not intend. See id. If the statutory

language permits more than one reasonable

interpretation, courts may take into consideration

other factors, such as the intention of the drafters.

See United States v. Ron Pair Enterprises, Inc., 489

U.S. 235, 242 (1989). “It is a cardinal principle of

statutory construction that a statute ought, upon the

whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous,

void, or insignificant,” and courts should be

“reluctant to treat statutory terms as surplusage in

any setting.” TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (citations and internal quotations marks

omitted).

The plain language of 42 U.S.C. section 7607(b)

indicates it has not withdrawn the jurisdiction of

state courts to hear this lawsuit, and at least leaves

the issue uncertain enough to keep the presumption

of concurrent jurisdiction intact. Far from clearly

and unmistakably withdrawing the jurisdiction of

state courts, the Court of Appeal conceded that 42

U.S.C. section 7607(b) “is silent regarding the

jurisdiction of state courts.” App. A15. 42 U.S.C.

section 7607(b) provides that a lawsuit seeking to

challenge an EPA Administrator’s decision to

approve a SIP may be brought “only” in the Court of

Appeals for the appropriate circuit, as the Court of

Appeal observes, but says nothing about whether

that requirement transfers to federal courts the right

of state courts to decide whether a regulation

promulgated in connection with the SIP violates

state law.

- 22 -

42 U.S.C. section 7607(b) contains other language

that limits its scope. It permits a Ninth Circuit

challenge to “an action of the [EPA] Administrator”:

here, the approval of a SIP proposed by CARB. As

the Ninth Circuit held in deciding a related question

in an air quality standards matter before it under 42

U.S.C. section 7607(b)(1), “Whether or not the

California State Air Resources Board (ARB) violated

state law, [the Ninth Circuit] may consider that issue

only if it is relevant to our review of the

Administrator’s promulgation of the attainment

status designations.” See W. Oil & Gas, 633 F.2d at

814. While CARB had to provide “assurances” that

the Truck and Bus Regulation complied with

California law to secure EPA approval here under 42

U.S.C. section 7410(a)(2)(E), the EPA Administrator

was never asked to assess, and accordingly never

passed upon, the Truck and Bus Regulation’s

substantive consistency with California law. See 42

U.S.C. § 7410(a). That leaves to state courts the task

of resolving whether the regulations approved as

part of the SIP are consistent with state law.

The Court of Appeal’s interpretation of 42 U.S.C.

section 7607(b) would have arbitrary and

unreasonable

results.

Because

the

EPA

Administrator was not required to pass upon

whether the Truck and Bus Regulation was

consistent with California law in approving the SIP

(nor would it have been possible to do so, as the EPA

Administrator had no way to know what dangers

DPF devices which had not yet been tested would

pose), the Alliance could not have challenged, and

cannot now challenge, the Truck and Bus Regulation

in the Ninth Circuit on state law grounds. See 42

U.S.C. § 7410(a); W. Oil & Gas, 633 F.2d at 814. If

the Court of Appeal’s decision is permitted to stand,

the Truck and Bus Regulation – and other similar

- 23 -

regulations

promulgated

state

agencies

throughout the nation – will be above the law; a

result so unreasonable, arbitrary, and offensive to

basic principles of comity and federalism that

Congress cannot have intended it when it enacted

the CAA.3

The rule against surplusage supports a reading of

42 U.S.C. section 7607(b) that preserves state court

jurisdiction over state law challenges to state

regulations, contrary to the Court of Appeal. App.

A19. The Court of Appeal’s interpretation reads out

of existence 42 U.S.C. section 7607(b)’s language

limiting that provision to challenges to an action of

the EPA Administrator, as opposed to challenges to

the regulations that the EPA Administrator has

approved themselves. If Congress had intended 42

U.S.C. section 7607(b) to trample principles of comity

and federalism and immunize state regulations

against state law challenges in this way, it would

have limited challenges to the approved regulations

rather than the EPA Administrator’s decision.

The Court of Appeal relied on case law that does

not answer the question presented here: whether the

CAA or any related statute withdraws from state

courts their presumptive jurisdiction to adjudicate

whether state regulations are consistent with state

law. That includes Cal. Dump Truck Owners Ass’n.

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

Truck”), a principal basis for the Court of Appeal’s

decision, which held that a federal preemption

challenge to the Truck and Bus Regulation fell

within 42 U.S.C. section 7607(b). Id. at 508.

3 The decision below also means that CARB can amend its EPA-

approved regulations without going back to the EPA, while still

claiming the protection of 42 U.S.C. section 7607(b).

- 24 -

In Dump Truck, a dump-truck-owners trade

association (“Truck Association”) brought an action

in federal district court, claiming that the Truck and

Bus Regulation was preempted, under the

Supremacy Clause of the United States Constitution,

the

Federal

Aviation

Administration

Authorization Act (“FAAAA”), which prohibits states

from enacting certain regulations concerning “motor

carriers” and property transportation. Id. at 502-03.

The Truck Association “sought a declaration that the

FAAAA preempted the Regulation and an injunction

against its enforcement by CARB.” Id. at 503. After

cross-motions for summary judgment, the district

court dismissed the lawsuit, holding that it lacked

“subject matter jurisdiction under § 307(b)(1) of the

Clean Air Act (CAA), 42 U.S.C. § 7607(b)(1)” and that

“even if it retained jurisdiction, dismissal was proper

under Federal Rule of Civil Procedure 19 because the

EPA was a necessary and indispensable party.” Id.

at 502-04. The Truck Association appealed. Id. at

504.

On appeal, the Ninth Circuit affirmed the district

court’s decision, holding that the district court lacked

subject matter jurisdiction over the matter under 42

U.S.C. section 7607(b), which it explained “channels

review of final EPA action exclusively to the courts of

appeals.” Id. at 506 (internal citation and quotation

marks omitted).

The court explained that

“invalidation of an EPA-approved SIP may only occur

in the federal appellate courts on direct appeal from

the Administrator’s decision” and that because the

Truck Association’s lawsuit sought “to prohibit the

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

therefore legal, effect of the Truck Association’s suit

is to challenge both the EPA and the SIP.” Id. at

504, 507 (internal citation and quotation marks

omitted).

- 25 -

The Court of Appeal erred by relying on Dump

Truck because it is distinguishable in several

material respects. First, notwithstanding the Court

of Appeal’s decision in this case, the Alliance’s

lawsuit does not in fact challenge California’s SIP or

the EPA’s approval of the SIP insofar as it seeks a

declaration that the Truck and Bus Regulation and

the Verification Procedure, to the extent that they

require DPF devices, are inconsistent with

California’s safety laws. App. A69-A70. The Court of

Appeal’s decision suggests that the Truck and Bus

Regulation itself requires the installation of DPF

devices. App. A6-A8. Not so. The provisions of the

Truck and Bus Regulation cited by the Court of

Appeal merely require that a VDECS be installed on

diesel vehicles to which the Truck and Bus

Regulation applies and define the term “diesel

particulate filter.” See Cal. Code Regs., tit. 13, §

2025(b), (d)(18), (d)(35), (d)(60), (e)-(g).

Thus,

contrary to the Court of Appeal, systems other than

DPFs could satisfy the Truck and Bus Regulation’s

VDECS requirement.

Second, unlike in Dump Truck, 784 F.3d at 502,

507-08, where the plaintiff argued that the Truck

and Bus Regulation was entirely preempted by

federal law and invalid (thus “effectively

eviscerat[ing] the SIP”), the Alliance is simply

arguing that requiring California vehicles to be

equipped with DPF devices under the Truck and Bus

Regulation conflicts with California’s safety laws.

Finally, unlike in Dump Truck, where the plaintiff

challenged an EPA-approved regulation in federal

court based on federal law, this lawsuit is a state

court challenge based on state law to the actions of a

state agency. See id. Multiple federal appellate

courts have held that state law challenges to a SIP

may be brought in state court and are not

- 26 -

jurisdictionally preempted by 42 U.S.C. section

7607(b). To the extent that Dump Truck can be

interpreted as running counter to this principle, it

should be overruled.4

The Seventh Circuit Court of Appeals has

squarely addressed whether state courts have

jurisdiction over state law challenges to a state

regulation included in an EPA-approved SIP under

42 U.S.C. section 7607(b), and, contrary to the Court

of Appeal, it answered in the affirmative. In Indiana

& Michigan Electric Company v. EPA, 509 F.2d 839,

844 (7th Cir. 1975), petitioners sought to invalidate

the EPA’s approval of a SIP, arguing that it was

technologically and economically infeasible to comply

with the SIP. The Seventh Circuit held that it

lacked jurisdiction.

Id. at 845.

However, it

recognized that petitioners could challenge the

“reasonableness” of the underlying regulation in

state court:

[Petitioners] have a right to challenge the

reasonableness of state plans in state courts,

and as the respondent concedes, “if part of a

state implementation plan is held invalid by a

state court, the state would have to revise that

part. Should the state fail to do so, the [EPA]

Administrator must propose and promulgate a

revision.” [Citation.]

Id. at 847. The petitioners brought a new lawsuit in

state court, and prevailed on the grounds that the

promulgation of one underlying regulation, APC-13,

4 Petitioner joins in the analysis of Dump Truck outlined in

Cody’s concurrently filed Petition for Writ of Certiorari, and

particularly in the conclusion that 42 U.S.C. § 7607(b)(1) in no

way cuts off concurrent state court jurisdiction to review

constitutional violations under state regulations.

- 27 -

violated an Indiana statute. Indiana Environmental

Management Bd. v. Indiana-Kentucky Elec. Corp.,

181 Ind. App. 570, 571-72 (1979). Later, the Seventh

Circuit held that the state’s invalidation of APC-13

made it unenforceable in federal court:

Because administrative actions taken without

substantial

compliance

with

applicable

procedures are invalid, it is as if Indiana never

submitted [the regulation]. Since a valid

[regulation] was never submitted, EPA’s

adoption of [the regulation] cannot be given

effect since EPA approved a provision which

was invalid when submitted to the agency.

Sierra Club v. Indiana-Kentucky Elec. Corp., 716

F.2d 1145, 1148 (7th Cir. 1983); see also Clean Water

Action Council of Northeastern Wis., Inc. v. EPA, 765

F.3d 749, 751 (7th Cir. 2014) (“We conclude . . . that

the venue and filing provisions of § 7607(b) are not

jurisdictional.”).

The Ninth Circuit reached the same conclusion in

a similar context. In Western Oil & Gas, 633 F.2d at

813-14, the Ninth Circuit held that a state law

challenge to an EPA-approved air quality regulation

issued by CARB under a related statute could and

should have been brought in state court. The Ninth

Circuit “refuse[d] to compel the Administrator, on

remand, to review the California designations for

compliance with California law. State law must

provide the remedy petitioners seek.” Id. at 814. It

elaborated:

The petitioners do not explain why the State's

submission

the

attainment

status

designations to the EPA terminated any

possibility of relief in the state courts. While §

- 28 -

7607 appears to provide the exclusive method

for judicial review of the Administrator's

promulgation, we see no reason why this

should affect the petitioners’ rights under

state law to challenge the ARB’s preparation

of the area designations it submitted to the

EPA. In fact, § 7407 specifically provides for

the states' revision of their original attainment

status lists. 42 U.S.C. § 7407(d)(5) (Supp.II

1978).

Id. at 814 n.14.

The Court of Appeal made an attempt to

distinguish these cases on the grounds that Sierra

Club involved a procedural challenge, which, in its

view, made it applicable in “a very narrow context . .

. not at issue here.” App. A23-A24. But the cases

themselves undermine that position. The Seventh

Circuit did not hold that state courts may hear only

procedural challenges; indeed, it never differentiated

between procedural or substantive challenges for

CAA purposes. The Ninth Circuit also declined to

make such a distinction in Western Oil & Gas. Even

Congress declined to make such a distinction in the

text of 42 U.S.C. section 7607. The Court of Appeal

does not, and cannot, explain why state procedural

challenges should be treated differently than state

substantive challenges. It does not even explain how

this distinction should be applied as a practical

matter, as – like substantive state law – many state

procedural rules are established by the Legislature

and go to the validity of the Regulation. To the

extent that substantive or procedural challenges, “

‘as a practical matter, challenge an [Agency’s] final

action,’ ” both categories of challenge do so equally.

App. A17-A18 (quoting Dump Truck, 784 F.3d at 508

n.9).

- 29 -

The Court of Appeal refers to the Alliance’s

argument on this issue as “creative lawyering.” App.

A17. As a preliminary matter, since the Ninth

Circuit’s decision in Dump Truck issued after this

lawsuit was filed and CARB failed to raise the

jurisdictional argument at issue here until its

Respondent’s Brief, “creative lawyering” did not

motivate the Alliance’s position in this case.

Furthermore, even if the Alliance were “practically

challenging the Agency’s approval of the Regulation,”

(App. A19), and had the “practical objective” of

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

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

regulation” (App. A5), as the Court of Appeal

claimed, that is precisely what the Seventh Circuit

approved in the Sierra Club cases and the Ninth

Circuit invited in Western Oil & Gas.

In sum, the Court of Appeal misconstrued 42

U.S.C. section 7607 and undermined the comity and

federalism interests that underlie the powerful

presumption of general state court jurisdiction. The

text of 42 U.S.C. section 7607 falls far short of being

express and unmistakable enough to withdraw the

jurisdiction of state courts to hear state law

challenges to state regulations. Furthermore, the

Court of Appeal’s decision is in conflict with federal

cases that directly address the CAA’s state court

consequences.

- 30 -

B. The Presumption of Jurisdiction in State

Courts Is at Its Zenith Where Withdrawing

Jurisdiction Would Permit an Agency to

Evade Judicial Review, and the Court of

Appeal Erred by Holding That CARB Had

Overcome It

The Court of Appeal disregarded the strong

presumption that it should not read a law as

immunizing an agency’s actions from judicial review.

To immunize agency action from judicial review

entirely, “the Legislature must have expressly so

provided or otherwise clearly indicated such an

intent.” Int’l Assn. of Fire Fighters, Local 188, AFLCIO, 51 Cal. 4th at 270-71; see also Bowen, 476 U.S.

at 670-673 & n.3 (“ ‘The responsibility of enforcing

the limits of statutory grants of authority is a judicial

function; . . . [w]ithout judicial review, statutory

limits would be naught but empty words.’ ”) (quoting

B. Schwartz, Administrative Law (2d ed. 1984) § 8.1,

p. 436). The Court of Appeal’s reading of 42 U.S.C.

section 7607(b) contradicts these principles.

For the same reasons that a challenge to the

Truck and Bus Regulation under 42 U.S.C. section

7607(b) cannot be based on the federal constitution,

as Cody explains in his separate Petition for Writ of

Certiorari, a challenge to the Truck and Bus

Regulation under 42 U.S.C. section 7607(b) cannot be

based on its dissonance with state law. The EPA

Administrator is not tasked with passing upon a

state regulation’s compliance with state law when

approving it under 42 U.S.C. section 7410(a). As a

result, the EPA Administrator’s approval decision

cannot be challenged on state law grounds in the

Ninth Circuit under 42 U.S.C. section 7607(b).

- 31 -

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the Alliance

respectfully requests that this Court grant its

Petition for Certiorari.

The Court of Appeal’s

decision is an unjustified intrusion into the rights of

the states and an engraved invitation to CARB, the

EPA, and state agencies throughout the nation to

violate state law. The environmental values that the

CAA is intended to protect are important, but the

Court of Appeal’s decision does far more than shield

the Truck and Bus Regulation from lawsuits by

stakeholders. It grants unrestrained and despotic

power to respondent CARB, an arm of California’s

executive branch, by placing CARB regulations that

conflict with state law beyond the reach of judicial

review.5 Neither the text, nor the purpose of the

CAA, nor applicable precedent indicates that the

CAA silently whisked away state courts’ sovereign

power

adjudicate

whether

regulations

promulgated by state agencies violate or conflict with

state law.

5 Filing a challenge to a SIP in the Ninth Circuit based on an

issue of state law would be an exercise in futility, for the

reasons stated above. This Court should reaffirm the balance of

power between state and federal courts, and confirm that state

courts have the presumptive power to adjudicate state issues.

- 32 -

Respectfully submitted,

Karl Olson (SBN 104760)

Supreme Court Bar No. 187154

Therese Y. Cannata (SBN 88032)

Zachary E. Colbeth (SBN 297419)

Aaron R. Field (SBN 310648)

Cannata, O’Toole, Fickes

& Olson LLP

100 Pine Street, Suite 350

San Francisco, CA 94111

Tel: (415) 409-8900

Counsel for Petitioners

- 33 -

No._______________

_________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

ALLIANCE FOR CALIFORNIA BUSINESS,

Petitioner,

STATE AIR RESOURCES BOARD,

Respondent,

____________________

On Petition for a Writ of Certiorari to the

Court of Appeal of the State of California,

Third Appellate District

_____________________

APPENDIX

_____________________

Karl Olson (SBN 104760)

SUPREME COURT BAR NO. 187154

THERESE Y. CANNATA (SBN 88032)

ZACHARY E. COLBETH (SBN 297419)

AARON R. FIELD (SBN 310648)

CANNATA O’TOOLE FICKES & OLSON LLP

100 Pine Street, Suite 350

San Francisco, CA 94111

Tel: (415) 409-8900

Email: kolson@cofolaw.com

Attorneys for Petitioner

APPENDIX TABLE OF CONTENTS

In the Supreme Court of California, En Banc, Denial

of Petitions for Review (S249810) ......................... A-1

Published Decision of the Court of Appeal of the

State of California, Third Appellate District (Alliance

for California Business v. State Resources Board, et

al., 23 Cal.App.5th 1050 (2018))............................ A-3

Order on Motion for Judgment on the Pleadings,

Alliance for California Business v. State Resources

Board, et al., Superior Court of the State of

California in and for the County of Glenn, Case No.

13CV01232 ........................................................... A-28

Ruling on Motion for Reconsideration, Alliance for

California Business v. State Resources Board, et al.,

Superior Court of the State of California in and for

the County of Glenn, Case No. 13CV01232 ........ A-38

Notice of Entry of Judgment in Favor of Defendants,

Alliance for California Business v. State Resources

Board, et al., Superior Court of the State of

California in and for the County of Glenn, Case No.

13CV01232 ........................................................... A-64

Third Amended Complaint for Declaratory Relief

(Code of Civ. Proc. §1060; and Gov’t Code §11350),

Alliance for California Business v. State Resources

Board, et al., Superior Court of the State of

California in and for the County of Glenn, Case No.

13CV01232 ........................................................... A-68

A-i

SUPREME COURT

FILED

AUG 15 2018

Jorge Navarrete Clerk

Deputy

_________________

Court of Appeal, Third Appellate District – Nos.

C082828, C083083

S249810

IN THE SUPREME COURT OF CALIFORNIA

En Banc

_________________

ALLIANCE FOR CALIFORNIA BUSINESS

Plaintiffs and Appellants,

STATE AIR RESOURCES BOARD,

Defendant and Respondent

_________________

JACK CODY,

Plaintiffs and Appellants,

STATE AIR RESOURCES BOARD ET AL.

Defendant and Respondent

____________________

A-1

The petitions for review are denied.

CANTIL-SAKAUYE

Chief Justice

A-2

Court of Appeal, Third Appellate District

Andrea K. Wallin-Rohmann, Clerk

Electronically FILED on 5/29/2018 by D. Welton,

Deputy Clerk

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

(Sacramento)

________________

No. C082828

(Super. Ct. No. 13CV01232)

No. C083083

(Super. Ct. No. 34201580002116CUWMGDS)

_________________

ALLIANCE FOR CALIFORNIA BUSINESS

Plaintiffs and Appellants,

STATE AIR RESOURCES BOARD,

Defendant and Respondent

_________________

JACK CODY,

Plaintiffs and Appellants,

STATE AIR RESOURCES BOARD ET AL.

Defendant and Respondent

____________________

A-3

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

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 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

A-4

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 Business 2

(Alliance) argues the Regulation is unlawful because

part of its mandate conflicts with state and 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

1 “Regulation to Reduce Emissions of Diesel Particulate Matter,

Oxides of Nitrogen and Other Criteria Pollutants, from In-Use

Heavy-Duty Diesel-Fueled Vehicles.” (Cal. Code Regs., tit. 13, §

2025.)

2 Alliance confusingly uses variations of its name in its briefing.

We use the name identified in its notice of appeal.

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.)

A-5

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.

Regulatory Framework And Background

The Act “sets forth a cooperative state-federal

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

v. 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

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

A-6

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 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

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.)

A-7

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 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.)

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

A-8

shall be filed within sixty days after such grounds

arise.” (Ibid.)

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

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.

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]

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.

A-9

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.

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.

A-10

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.

Federal Challenges

In 2014, Cody joined a suit by the OwnerOperator 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-00186MCE-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 as-applied

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

A-11

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 truck owner-operators, 9it transferred

Cody’s as-applied 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 60-day 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

jurisdiction

over

constitutional

exclusive

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.)

A-12

preemption claim seeking to invalidate the

Regulation (following its approval as part of the SIP)

in the Ninth Circuit. (Dump Truck, supra, 784 F.3d

at pp. 502-504.)

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 interstate truck owneroperators.” 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

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

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

A-13

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

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.)

The Ninth Circuit Has Exclusive Jurisdiction Over

These Cases

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

A-14

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 state-court

jurisdiction and federal interests.” (Ibid.)

While section 307(b)(1) is silent regarding the

jurisdiction of state courts, the express language of

the 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).)

A-15

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 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.

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

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).)

A-16

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 “ ‘fairly discernable’ “ 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 relief13 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

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 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”].)

A-17

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 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 enforcement by [the Board], and

would be vitiated if such enforcement were enjoined.”

A-18

(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 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

A-19

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. 4065840659.)

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, 1067-1068.) 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

A-20

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 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

A-21

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 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, 187188].) 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

A-22

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 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

A-23

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 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. 11051106.) 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 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

A-24

constitutional challenge was subject to review under

section 307(b)(1), the express preclusion-of-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 60-day statute of

limitations. The Ninth Circuit found it was. An

appeal from that decision does not lie in state court.

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-25

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, §§ 2700-2711); 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.

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).)

Robie, J.

We concur:

Raye, P. J

A-26

Duarte, J.

A-27

FILED

MAR 07 2016

GLENN COUNTY

CEO/CLERK OF THE SUPERIOR COURT

BY PRISCILLA BUTLER, Deputy

_________________

IN THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA

IN AND FOR THE COUNTY OF GLENN

_________________

ALLIANCE FOR CALIFORNIA BUSINESS,

Plaintiff

CALIFORNIA AIR RESOURCES BOARD, et al.

Defendants

_________________

Case No. 13CV01232

_________________

ORDER ON MOTION FOR JUDGMENT ON THE

PLEADINGS

____________________

A-28

The Third Amended Complaint (“TAC”) filed by

Alliance for California Business (“ACB”), as modified

by the Ruling on Motion to Strike filed June 15,

2015, challenges the legality of two regulations

adopted by the California Air Resources Board

(“CARB”) to reduce emissions of particulate matter

(PM) and nitrogen oxides (“NOx”) from diesel trucks

and buses. Specifically, the TAC alleges that CARB’s

Truck and Bus Regulation (Cal. Code Regs. , tit. 13, §

2025) creates public safety risks by requiring each

owner of a truck operating on California roads with a

diesel engine earlier than 2007 to retrofit the truck

with a diesel particulate filter (“DPF”) that has been

verified as a diesel emission control strategy

(“VDECS”) under CARB’s Verification Procedure.1

(Cal. Code Regs., tit. 13, §§ 2700-271 1.). On the basis

of these allegations, ACB seeks a declaration that

“continued enforcement of both the Truck and Bus

Regulation and the Verification Regulation, as

amended, in whole or in part, places California truck

owners, including ACB members, in the position of

violating California public health and safety laws,

such as, inter alia, the California Vehicle Code

section 24002, the California Labor Code section

6400, and Cal/OSHA section 3328.” ACB also seeks

an injunction prohibiting CARB from enforcing the

Truck and Bus Regulation and the Verification

Procedure.

CARB has moved for judgment on the pleadings

with respect to the TAC on two grounds. First, CARB

asserts that the TAC does not state facts sufficient to

constitute a cause of action against it (Code Civ.

Proc., § 438, subd. (c)(l)(B)(ii)) because subdivision

1 A DPF is the highest level VDECS under CARB’s Verification

Procedure and is the VDECS required by the Truck and Bus

Regulation for retrofitting pre-2007 engines. (Cal. Code Regs.,

tit. 13, § 2025(d)(35), (g)(1 ). )

A-29

(q)(S) of the Truck and Bus Regulation provides a

procedure b which an owner of a diesel truck subject

to the retrofit requirement may receive an exemption

upon a showing that retrofitting the owner’s truck

with a verified DPF would violate state and federal

health and safety laws. Second, CARB asserts that

the Court lacks jurisdiction of the TAC (Code Civ.

Proc., § 438, subd. (c)(l)(B)(i)) because subdivision

(q)(S) provides an administrative remedy that ACB

members who own trucks subject to the retrofit

requirement must, but did not, exhaust prior to filing

this lawsuit.

As explained below, the Court grants CARB’s

motion without leave to amend on the ground that

the TAC does not state a cause of action.

STANDARD OF REVIEW

In considering CARB’s motion, the Court accepts

as true and liberally construes all allegations of

material fact in the TAC and any matters subject to

judicial notice, including matters subject to

mandatory judicial notice under Evidence Code

section 451. (Code Civ. Proc., § 438, subd. (d); Hardy

v. America’s Best Home Loans (2014) 232

Cal.App.4th 795, 802.) The Court does not consider

extrinsic evidence to support or contradict the facts

alleged in the TAC unless the evidence is judicially

noticeable. (Sykora v. State Department of State

Hospitals (2014) 225 Cal.App.4th 1530, 1534.) The

Court disregards allegations in the TAC which

constitute conclusions of fact and/or law, opinions, or

allegations contrary to law or judicially noticed facts.

(See Bettencourt v. Hennessy Industries, Inc. (2012)

205 Cal.App.4th 1108, 1111.) If the facts alleged in

the complaint do not support any valid cause of

action against the defendants, the Court considers

A-30

whether the complaint could reasonably be amended

to do so.2 (Ibid.) Leave to amend is liberally allowed

except when there is no reasonable possibility the

defect in the pleading can be cured by amendment.

(Ibid.)

ANALYSIS

The TAC sets forth allegations to establish that

the installation of verified DPF devices in diesel

trucks with pre-2007 engines creates significant

health and safety risks and places ACB members in

the position of violating California public health and

safety laws. (See TAC, ¶¶ 1, 23c.) The allegations

indicate that:

 DPFs operate at extremely high temperatures

and, due to excessive pressure and heat buildup,

can damage engines and cause fires (¶¶ 12a, 12b,

24a);

 Sensors installed to alert a truck driver of a DPF

malfunction may fail, and without warning to the

driver, the malfunction may cause the truck

engine to lose power and slow down to a speed

unacceptable and unsafe on a public road or

highway (¶¶ 12a, 17b);

 Sparks and diesel particulate matter discharged

from the truck exhaust as a result of DPF

operations, particularly during the regeneration

2 The Declaration of Therese Y. Cannata in Support of Plaintiffs

Opposition to Defendants’ Motion for Judgment on the

Pleadings filed September 4, 2015, the Corrected Declaration of

Therese Y. Cannata filed September 9, 2015, the Declaration of

Hank de Carbone! filed October 16, 2015, and the Declaration of

Tony Hobbs filed December 3, 2015 present extrinsic evidence

in support of the allegations of the TAC, not additional facts

that could be alleged to state a cause of action in a further

amended complaint. Thus, the Court does not consider the

declarations or the exhibits attached to the declarations in

ruling on CARB’s motion for judgment on the pleadings.

A-31

process to incinerate the PM collected by the

filter, can precipitate fires in nearby brush and

place nearby workers and other persons at risk of

injury (¶¶12b, 17b);

 In-use compliance testing requirements for

verification of DPFs were relaxed during 2013

amendments to the Verification Procedure, and

safety testing of trucks retrofitted with DPFs is

not required prior to verification and on-road use;

safety is only addressed in recalls after

catastrophic DPS failures (¶¶ 17a, 17g, 17h, 24c);

and

 Instead of warning truck owners and drivers of

the safety risks created by DPFs, CARB has

issued warnings about the need to maintain DPFs

(¶ 24f).

These allegations in the TAC substantially ignore

the contents of the Truck and Bus Regulation and

the Verification Procedure which are explicitly

intended to ensure that the retrofit of diesel vehicles

with verified DPFs are safe and compliant with state

and federal health and safety laws. As CARB points

out in its Motion for Judgment on the Pleadings,

section 2025(q)(S) of the Truck and Bus Regulation

provides a detailed administrative procedure for

diesel truck owners to use in obtaining a

determination that no highest level VDECS, i.e.,

DPF,3 is available for retrofitting their pre-2007

trucks because the VDECS cannot be safely installed

or operated in the trucks or would violate safety

standards prescribed by the Division of Occupational

Safety and Health within the Department of

Industrial Relations or comparable state and federal

health and safety laws. Upon a determination under

section 2025(q)(S) that no highest level VDECS is

3 See footnote 1 of this order.

A-32

available, the scheduled compliance deadline for

retrofitting the trucks is extended for a year. (§

2025(r)(11).) And truck owners may obtain an

extension of the compliance deadline in a subsequent

year by submitting documentation following the

compliance deadline for the subsequent year which

establishes the non-availability of a highest level

VDECS or DPF with which their trucks may be

safely retrofitted under state and federal health and

safety laws.4 (Ibid.)

Further, as pointed out by CARB in footnote 1 of

its Supplemental Brief in Support of Motion for

Judgment on the Pleadings, safety is considered

throughout CARB’s Verification Procedure. Pursuant

to this regulatory procedure, CARB verifies the

emission reduction capabilities of VDECSs, including

DPFs intended for installation in pre-2007 diesel

trucks that require retrofitting with a verified PDF

under section 2025(g)(1) of the Truck and Bus

Regulation. (Cal. Code Regs., tit. 13, § 2700.) Before

CARB verifies a DPF for on-road use, the diesel

engine or vehicle manufacturer applying for

verification must demonstrate that the DPF has the

capability not only to maintain emission reductions

over time and distance but to do so safely:

The procedure in section 2025(q)(5) and (r)(11) by which an

owner of a pre-2007 diesel truck may request an extension of

the deadlines for retrofitting the truck with a DPF has been a

part of the Truck and Bus Regulation since its adoption by

CARS in 2009. (See Initial Statement of Reasons for Proposed

for In-Use On-Road Diesel Vehicles, p. 32 (October 2008); Final

Statement of Reasons for the Adoption of a Proposed Regulation

to Reduce Emissions from In-Use On-Road Diesel Vehicles

(December 2008), pp. 102, 103-105, 107, accessed at

http://www.arb.ca.gov/regact/2008/truckbus08/truckbus08.htm.)

Subsequent amendments of section 2025 have not substantively

changed the extension procedure.

A-33



An applicant for verification of a DPF must

analyze potential safety and catastrophic failure

issues related to the DPF and describe mitigation

strategies for each issue, including uncontrolled

regeneration, lack of proper maintenance,

unfavorable operating conditions, high exhaust

temperatures and sensor failure. (Cal. Code

Regs., tit., §§ 2702(d)(2.7), 2706(w).)

Field and laboratory testing conducted by the

applicant to demonstrate the durability of the

DPF in maintaining a reduced level of emissions

over a period of time or distance must establish,

among other requirements, that the DPF does not

cause damage to the vehicle engine and that the

backpressure caused by the DPF does not exceed

the engine manufacturer’s specified limits or

result in any damage to the engine. (§§

2701(d)(20), 2704(k)(4) and (5).)

Field testing of the DPF by the applicant in a

vehicle belonging to the group of diesel engines

for which verification is sought must demonstrate

its compatibility with the vehicle by, among other

requirements, not causing engine damage or

malfunction, not causing backpressure outside of

the engine manufacturer’s specified limits or

engine damage, and not hindering the vehicle’s

ability to perform its normal functions. (§

2705)(a)(l)(A), (B), 9 (C).)

The applicant must provide detailed information

about routine DPF maintenance for “end users”

owning or operating a vehicle in which the DPF is

installed, including information on procedures for

resetting any backpressure monitors after

maintenance

procedures

are

completed,

performance criteria to determine a proper state

of maintenance, and prohibitions of specific

maintenance practices which may damage the

A-34

DPF. (§§ 2701(a)(24), 2706(h), 2706(/).) The

owner’s manual prepared by the applicant must

notify end users about the importance of

maintaining both their vehicle engine(s) and the

DPF(s) and potential safety concerns associated

with DPF operation. (§ 2706(/)(12), (/)18.)

 CARB may deny an application for verification of

a DPF upon a determination that the applicant

has not satisfactorily demonstrated the safety of

the DPF. (§ 2706(w).)

After CARB verifies a DPF, its safety continues to

be an important consideration during in-use

compliance testing required by the Verification

Procedure. (§§ 2706(w)(2), 2709.) In the event that an

in-use compliance report or other information

provided by an applicant to CARB indicates that a

DPF “has the potential to experience catastrophic

failure or other safety related failure,” CARB may

require the applicant to recall the DPF; take

remedial action, including replacement or repair of

the DPF; and report on the impact of such

replacement or repair on the vehicles retrofitted with

the DPF with respect to such factors as

backpressure,

temperature,

maintenance,

performance and safety. (§ 2709(0), (p), (q)(4)-(5).)

In sum, CARB’s Truck and Bus Regulation and

Verification Procedure, by their express terms,

negate the allegations of the TAC, that the

retrofitting of pre-2007 diesel trucks with verified

DPFs creates health and safety risks and places

owners of the trucks in the position of violating

health and safety laws. On its face, the Verification

Procedure directly addresses DPF operational

characteristics, such as high temperatures and

increased engine pressure, that allegedly create the

risks and does not allow verification and on-road use

of DPFs unless their safety is established in a

A-35

rigorous and thorough application and testing

process prior to any on-road use. Subsequent to

verification, CARB continues to monitor the safety of

DPFs through in-use compliance testing and, upon

identification of a potentially unsafe condition,

requires remediation to eliminate the safety risk,

through a recall if the risk is potentially

catastrophic. And, regardless of DPF verification, an

owner or operator of a diesel truck subject to

retrofitting with a DPF may obtain an annual

extension of the retrofitting deadline under the

Truck and Bus regulation upon an administrative

determination that the DPF cannot be safely

installed or violates state and federal health and

safety laws.

Because CARB’s Truck and Bus Regulation and

Verification Procedure directly and completely

contradict the factual allegations of the TAC

essential to ACB’s cause of action for declaratory and

injunctive relief from these regulations, the Court

concludes that the TAC fails to state a cause of

action. Because ACB has not proposed facts that

could reasonably cure this pleading deficiency and

offers only extrinsic evidence in declarations that

largely duplicate the allegations in the TAC, the

Court further concludes that there is no reasonable

possibility the deficiency can be cured by

amendment.

In light of these conclusions, the Court need not

and does not decide the other ground for CARB’s

motion for judgment on the pleadings, a lack of

subject matter jurisdiction based on a failure by

ACB’s truck owner members to request an extension

of the retrofit requirement and thereby exhaust their

administrative remedy under section 2025(q)(5) and

(r)(ll). CARB’s motion for judgment on the pleadings

A-36

completely and timely5 disposes of ACB’s action on

the ground that the TAC does not and cannot be

amended to state a valid cause of action.

Accordingly, IT IS ORDERED that:

1. The Motion for Judgment on the Pleadings with

respect to ACB’s Third Amended Complaint, as

modified by the Ruling on Motion to Strike filed

June 15, 2015, is granted on the ground that the

Third Amended Complaint fails to state facts

constituting a cause of action against defendants.

2. Judgment shall be entered in favor of defendants.

Dated: 3.7.16

Hon. Peter B Twede

Judge of the Superior Court

5 The motion was timely filed under Code of Civil Procedure

section 438, subdivisions (e) and (f). It was also timely as a

common law motion for judgment on the pleadings that may be

brought at any time either prior to trial or at trial itself. (See

Stoops v. Abbassi (2002) 100 Cal.app.4th 644, 650.)

A-37

FILED

JUL 13 2016

GLENN COUNTY

CEO/CLERK OF THE SUPERIOR COURT

BY PRISCILLA BUTLER,Deputy

_________________

IN THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA

IN AND FOR THE COUNTY OF GLENN

_________________

ALLIANCE FOR CALIFORNIA BUSINESS,

Plaintiff

CALIFORNIA AIR RESOURCES BOARD, et al.

Defendants

_________________

Case No. 13CV01232

_________________

RULING ON MOTION FOR RECONSIDERATION

____________________

A-38

Plaintiff Alliance for California Business (“ACB”)

moves for reconsideration of the Court’s order

granting the motion of defendant California Air

Resources Board (“CARB”) for judgment of the

pleadings. That order was based on the Court’s

determination that plaintiff’s Third Amended

Complaint (“TAC”) fails to state facts sufficient to

constitute a cause of action against CARB. In

particular, the Court determined that CARB’s Truck

and Bus Regulation (Cal. Code Regs., tit. 13, § 2025)

and Verification Procedure (Cal. Code Regs., tit. 13, §

2700-2711), which together require the retrofitting of

pre-2007 diesel trucks with a verified diesel

particulate filter (“DPF”), negate the allegations of

the TAC that the DPF retrofit requirement creates

health and safety risks.

ACB seeks reconsideration of the Court’s order

granting judgment on the pleadings (“JOP order”) on

two bases: First, ACB moves for reconsideration

under subdivision (a) of Code of Civil Procedure

section 1008, alleging new or different facts and

special circumstances. Second, ACB requests that

the Court, pursuant to its inherent constitutional

power, reconsider and correct its JOP order on its

own initiative.

For the following reasons, the Court grants ACB’s

motion for reconsideration, reconsiders its JOP

order, and affirms the order.

Section 1008 Motion

-- New or different facts?

ACB contends that CARB conceded the inherent

dangerousness of DPFs during a recent rulemaking

proceeding to establish an evaluation procedure for

approving and making certain aftermarket DPFs

A-39

available for sale in California.1 These aftermarket

DPFs would be available to replace the DPFs with

which engine manufacturers originally equipped onroad heavy-duty diesel engines, model years 2007

through 2009 (“OEM DPFs”).2

In support of its contention, ACB quotes four

passages from CARB’s Initial Statement of Reasons

for Proposed Rulemaking for the aftermarket DPF

evaluation procedure. (“Initial Statement”, accessible

http://www.arb.ca.gov/regact/2016/aftermarket2016/a

ftermarketisor.pdf.)

According to ACB, CARB concedes in these

passages that DPFs, operating under normal

conditions, inevitably deteriorate over time, become

clogged with particulate matter and create excessive

engine exhaust backpressures that cause engine

malfunctions, engine damage and fires. ACB

indicates that CARB has previously attributed such

engine problems entirely to the failure of truck and

bus owners and operators to properly maintain the

DPFs and their vehicles.

1 The Court takes judicial notice of CARB’s rulemaking

documents for the aftermarket DPF evaluation procedure

pursuant to ACB’s request. The documents are accessible at

http://www.arb.ca.gov/regact/2016/aftermarket2016/aftermarke

t216.htm.

2 A “new aftermarket DPF” is defined in Appendix B to CARB’s

Initial Statement as a part constructed of all new materials

that is intended to replace the DPF originally installed in a new

2007 through 2009 model year on-road heavy-duty diesel engine

and that is designed and used to reduce the emissions from that

engine. (See Appendix B, p. B-4, accessed at

http://www.arb.ca.gov/regact/2016/aftermarket2016/aftermarke

tappb.pdf.) Thus, an aftermarket DPF approved by CARS

pursuant to the proposed evaluation procedure would not

satisfy the DPF retrofit requirement of the Truck and Bus

Regulation for pre-2007 model diesel trucks.

A-40

Upon review of these four passages in context, the

Court finds that none of the four passages contain

concessions by CARB that DPFs are inherently

dangerous and none of the passages constitute new

or different facts warranting reconsideration of the

JOP order.

The first passage quoted by ACB concerns

CARB’s reasons for establishing an evaluation

procedure for approving aftermarket PDFs as

replacements for OEM PDFs in model year 2007

through 2009 on-road heavy -duty diesel engines.

CARB explains that an aftermarket PDF would

provide diesel truck owners with OEM PDFs that

wear out or are damaged after expiration of the OEM

warranty period with a less expensive replacement

option than a new OEM PDF. (Initial Statement, pp.

2-3.) CARB identifies and details the circumstances

creating the need for OEM PDF replacement in the

following paragraph, which contains ACB’s quoted

passage (highlighted in bold):

“The DPFs on 2007-2009 model year HDDEs

have now been in use for a number of years

worldwide, and many have likely exceeded the

OEM’s warranty or OEM’s extended warranty.

As these engines age, there is an

increasing need to replace the OEM DPFs

as the parts experience wear. Engine

problems such as faulty turbochargers,

bad fuel injectors, or malfunctioning

EGR valves can negatively impact DPFs

in several ways including catalytic

poisoning, fouling or overloading the

DPF, or causing thermal damage due to

more frequent regeneration. Failure to

properly maintain the DPF, such as failing to

clean the DPF or performing inappropriate

A-41

cleaning, may also result in damage to the

DPF. Vehicles occasionally suffer accidents

(flooding, physical impacts etc.) which can also

damage DPFs. All of these factors may result

in a compromised DPF, although the vehicle

itself may still be usable. However, without a

functioning DPF the vehicle would have

excessive PM emissions necessitating its

replacement.” (Initial Statement, p. 3.)

Read in its entirety, the foregoing paragraph

indicates that, in addition to wear with usage over

time, a DPF may require replacement as a result of

various engine problems, a lack of proper DPF

maintenance or vehicle accidents. (Ibid.) Contrary to

ACB’s contention (see ACB’s Memorandum filed 3/2

1/2016, pp. 2-3, 8; ACB’s Reply filed 4/8/2016, pp. 2-4,

6-7), CARB does not concede that DPFs normally or

inevitably cause engine damage. To the contrary,

CARB indicates that malfunctioning diesel engine

components may damage the PDFs.

The second passage quoted by ACB appears in a

section of the aftermarket DPF evaluation procedure

requiring the “laboratory aging” of DPFs in

preparation for emission and field testing. (See

Initial Statement, pp. 9- 10, 43-47.) The DPFs are to

be “aged” in conditions simulating actual usage so

that their durability and continued ability to control

emissions in real world operations can be

demonstrated during testing. (Ibid.) CARB’s

rationale for requiring active regenerations3 during

3 “Regeneration” in the context of DPFs means the periodic or

continuous combustion of collected particulate matter that is

trapped in a DPF through an active or passive mechanism.

Active regeneration requires a source of heat other than the

exhaust itself to regenerate the DPF. (Cal. Code Regs., tit. 13, §

A-42

the aging cycle is set forth in the following

paragraph, which includes the second passage

quoted by ACB (highlighted in bold):

“Rationale for section (g)(2)(B): This subsection

is necessary to explain how to perform the

active regenerations required as part of the

aging cycle for engines originally certified with

a [Diesel Oxidation Catalyst] plus DPF

configuration. This configuration is different

enough from other engine configurations that

it requires separate consideration. The DOC

component can alter DPF behavior and aging

and, as such, should not be grouped with

engines which do not have a DOC.

Regeneration can represent a potential

failure mode and/or severe aging

condition due to the high temperature

conditions during the process and is

critical to incorporate this in a robust

aging cycle. Regular regeneration places

significant stress on the DPF and the

aftermarket DPF must be durable enough

to withstand it.” (Initial Statement, p. 45.)

In this rationale, CARB straightforwardly

acknowledges a potential risk that DPFs may fail in

actual use due to the high temperatures required for

regenerations

and

explains

that

regular

regenerations must be incorporated into the aging

cycle of aftermarket DPFs so that the filters’

durability to withstand regenerations and operate

effectively in actual use can be established during

the evaluation procedure. Contrary to ACB’s

2701(37). See also Initial Statement, Appendix B, p. B-5,

(“regeneration” defined).)

A-43

contention (see ACB’s Memorandum filed 3/2 1/2016,

pp. 2-3, 6, 8-9; ACB’s Reply filed 4/8/2016, pp. 2-4, 67), CARB’s rationale does not state, imply or concede

that DPFs inevitably deteriorate with use in

extremely high temperatures and cause engine

damage and fires. Rather, the rationale indicates

that aftermarket DPFs must demonstrate during

testing and evaluation that they are durable enough

to withstand the stresses of regeneration.

The third passage quoted by ACB appears in a

section of the aftermarket DPF evaluation procedure

that requires a laboratory-aged aftermarket DPF to

be installed on an engine for which it is designed and

to be operated in the field to demonstrate its

durability and engine compatibility in actual service.

(Initial Statement, p. 10.) During field testing,

maintenance of the aftermarket DPF is prohibited,

and the DPF must not cause engine damage, show

inappropriate regeneration behavior or lose physical

integrity. (Id., p. 47) CARB’s rationale for the

prohibition on maintenance during testing, which

includes ACB’s quoted passage (highlighted in bold

print), provides:

“Rationale

for

section

(g)(3)(G):

This

subsection ensures that the engine and vehicle

must be in excellent condition prior to starting

the field service accumulation and that the

aftermarket

DPF

does

not

require

maintenance when deployed into the field. The

point of the field demonstration is to show the

device is durable and causes no issues with the

engine. An in-field problem would be

difficult to determine if the device was

the cause or the engine, or that the

device causes another part on the engine

to fail. As such the device must be able to

A-44

demonstrate no issues during the field

trials.” (Initial Statement, p. 47.)

CARB’s rationale makes clear that the

aftermarket DPF is field tested to establish that it is

durable, will not cause engine damage and can

operate properly upon deployment to the field

without additional maintenance. The language of the

rationale provides no support for a concession by

CARB that DPFs cause engine damage during

normal operations.

The fourth passage quoted by ACB appears in a

section of an appendix to the Initial Statement

discussing the assessment required by the

aftermarket DPF evaluation procedure to establish

the compatibility of each DPF with the engine in

which it is installed. (Initial Statement, Appendix D,

D-5,

accessed

http://www.arb.ca.gov/regact/2016/aftermarket2016/a

ftermarketappd.pdf) ACB quotes the following

paragraph from this discussion:

“As mentioned in previous sections, the

trapped soot in the wall-flow DPF builds up

over time, increasing the backpressure on the

engine as it continues to operate. Operating

the engine at excessive backpressure for

extended

periods

will

impact

engine

performance and eventually cause engine

damage. Therefore the soot accumulation rate

for the modified part must be similar to the

OEM DPF. If the modified part accumulates

soot faster, this would have an impact on

engine

operation

and/or

regeneration

frequency. Frequent regeneration will increase

the fuel consumption and risks of DPF

failures. This Procedure requires tests for

A-45

comparing the soot accumulation rates and

backpressure changes of the modified part to

the OEM DPF. Additional backpressure

comparisons are required during the emission

testing of the degreened DPF, lab-aged DPF,

and field-aged DPF.” (Ibid.)

In quoting this paragraph regarding engine

damage caused by excessive backpressure on the

engine attributable to accumulated particulate

matter or soot trapped in the DPF, ACB omits the

preceding paragraph indicating that the aftermarket

DPF evaluation procedure includes a compatibility

assessment “to ensure that the engine maintains

appropriate

DPF

expected

backpressure,4

regeneration . . . . “ (Ibid.) ACB also omits the

subsequent paragraph indicating that during field

trials of the aftermarket DPF pursuant to the

evaluation procedure, the DPF “must not negatively

impact engine durability or functionality, cause

engine damage, alter engine behavior, or trigger any

fault warnings or codes during operation.” (Ibid.)

These indications in the paragraph preceding and

the paragraph following the paragraph quoted by

ACB clarify that field testing aftermarket DPFs

pursuant to the evaluation procedure is structured to

determine the compatibility of the DPFs with the

engines for which they were designed and to deny

4 Section (g)(3)(C) of the proposed aftermarket evaluation

procedure specifies that, among the criteria an aftermarket

DPF must meet during a compatibility assessment, the DPF

must not cause backpressure or temperature to exceed the

engine manufacturer’s specified limits or result in any damage

to the engine. (Initial Statement, Appendix B, p. B-45, accessed

http://www.arb.ca.gov/regact/2016/aftermarket2016/aftermarke

tappb.pdf. )

A-46

approval of those DPFs unable to function without

creating the potential engine problems described in

the paragraph quoted by ACB. Thus, contrary to

ACB’s contention (see ACB’s Memorandum filed 3/2

1/20 16, pp. 2-3, 6, 8-9; ACB’s Reply filed 4/8/2016,

pp. 1-4, 6-7), the quoted paragraph does not

constitute a concession by CARB that DPFs

inevitably cause engine damage in actual usage

under normal operating conditions.

Not only does ACB incorrectly represent the four

passages quoted from CARB’s rulemaking record for

an aftermarket evaluation procedure, ACB also

incorrectly represents the four passages as new or

different facts warranting reconsideration. Rather. in

adopting the Verification Procedure in 2003 and in

subsequently amending it several times, CARB has

recognized that DPF regeneration poses potential

risks of PDF and engine malfunctions, damage and

failure due to high temperatures and excessive

engine

exhaust

backpressure

during

DPF

regeneration, and based on this recognition, CARB

has established an evaluation procedure similar to

that for the aftermarket PDF to ensure that a diesel

emission control strategy (“DECS”), including a DPF,

is approved for the retrofit of diesel engine vehicles

only after demonstrating during extended and

rigorous field testing that it can function efficiently

and safely without engine damage, malfunction or

failure. In particular, the Verification Procedure

requires:



A demonstration of compatibility during field

testing between the DPF and a vehicle engine for

which it is designed and for which verification is

sought. (Cal. Code Regs., tit. 13, § 2705(a)(l),

A-47



originally adopted in 2003, p. 2 1.)5 Compatibility

is demonstrated if, during field testing, the DPF

does not cause engine damage or malfunction,

does not cause backpressure outside the engine

manufacturer’s specified limits, and does not

hinder or detract from the vehicle’s performance

of its normal functions. (Ibid.)

The measurement and recording of exhaust

backpressure and temperature during extended

and rigorous emissions and durability testing of a

DPF to document and demonstrate that the

backpressure caused by DPF operation and

regeneration is within the engine manufacturer’s

specified limits or will not result in any damage to

the engine. (Id., § 2706(f)(l), originally adopted in

2003 as former § 2706(d)(l), p. 25.) During

durability testing, the physical integrity of the

DPF must remain intact and fully functional; the

DPF must not cause any damage to the engine or

vehicle, and the backpressure must not exceed the

engine manufacturer’s specified limits. (Id., §

2704(k) (3), (4), (5), originally adopted in 2003 as

former § 2704(i), pp. 19-20.)

Installation of a backpressure monitor with the

DPF to notify the vehicle operator when the

backpressure limit identified by the engine

manufacturer is approached. (Id., § 2706(f)(3),

originally adopted in 2003 as former § 2706(d)(2),

pp. 25-26.) The functionality and durability of the

monitor must be demonstrated during field

testing. (Id., § 2704 (j), adopted in 2009.)

Analysis of potential safety issues, including

uncontrolled DPF regeneration, and a detailed

5 The original version of the Verification Procedure is accessible

at http://www.arb.ca.gov/regact/dieselrv/finregrev.pdf The page

numbers cited in this ruling for provisions of the Verification

Procedure adopted in 2003 refer to this online version.

A-48



description of mitigation strategies for any

potential safety issue identified. (Id., §

2702(d)(2.7), as amended in 2013, and § 2706(w),

adopted in 20 13. A less detailed form of §

2702(d)(2.7) at p. 6 was originally adopted in 2003

and remained in effect until the 2013

amendment.)

Pre-installation assessment to establish the

engine to be retrofitted is compatible with the

PDF, is in a proper state of maintenance, and is

operating within the engine manufacturer’s

specifications. (Id., § 2706(t)( 1), (4). See former §

2706(t) and (t)(4), adopted in 20 1 1.)

Installation of a DPF in a vehicle at a location

compliant with applicable safety standards such

as, but not limited to, Federal Motor Carrier

Safety Administration regulations on Parts and

Accessories Necessary for Safe Operation,

Exhaust Systems, 49 C.F.R. § 393.83. (Id., §

2706(u)(3).)

Provision of information regarding DPF

maintenance procedures for owners and operators

of vehicles in which a DPF has been installed,

including procedures for resetting backpressure

monitors after maintenance is completed. (Id., §

2706(h). See former § 2706(f) at p. 26, adopted in

2003, requiring information regarding DPF

maintenance, including backpressure monitor

resetting procedure.)

An Owner’s Manual specifying, among other

matters, required DPF maintenance procedures,

the possible backpressure range imposed on the

diesel engine of the vehicle in which the DPF is

installed, instructions for reading and resetting

the backpressure monitor, and an express

statement of the importance of proper engine and

DPF maintenance by the diesel engine owner or

A-49

operator to proper DPF functioning. (Id., §

2706(/), adopted in 2013. See former § 2706 (i) at

pp. 27-28, adopted in 2003 and specifying these

same matters with the exception of the express

statement regarding importance of engine and

DPF maintenance.)

Subsequent to the verification and approval of

DPFs for the retrofit of compatible diesel engine

vehicles, the Verification Procedure requires in-use

compliance testing to confirm that the DPF continues

to meet verification emission and durability

requirements. (Id., § 2709(h). See former § 2709 (m)

at p. 38, adopted in 2003, requiring DPF in-use

compliance with § § 2706 and 2707, including

backpressure limits and backpressure monitoring

pursuant to former § 2706(d) and current § 2706(f)(1)

and (f)(3).) In addition, CARB reviews warranty

claims and other information about the in-use

performance of verified DPFs and, upon determining

non-compliance with emissions and durability

requirements, may lower or revoke the verification.

(Id., § 2709(s) and former § 2709(m) at p. 38, adopted

in 2003 and renumbered as § 2709(s) and amended

in 20 13. See § 2707(c) and former § 2707(c) at p. 32,

adopted in 2003, requiring annual reports by DPF

manufacturers of warranty claims).) If information

reviewed by CARB about the in-use performance of a

verified DPF raises issues of a catastrophic or other

safety-related failure or a systemic defect, CARB is

authorized to require the DPF manufacturer to recall

and correct the defect. (Id., § 2709(p).)

In sum, the Verification Procedure reflects

CARB’s longstanding recognition of the potential

safety risks presented by the retrofitting of diesel

vehicles with DPFs, specification of strict durability

and performance requirements for DPFs to minimize

A-50

and avoid those risks, and establishment of field

testing requirements to verify that DPFs are able to

meet those requirements in actual use, and tracks

the in-use compliance of DPFs after their

verification. Contrary to ACB’s contention, CARB

has made no new concession regarding the inherent

danger of DPF retrofits in its Initial Statement for an

aftermarket DPF evaluation procedure. Rather, the

four passages quoted by ACB from the Initial

Statement, construed in context, parallel CARB’s

previous recognition in the Verification Procedure of

the potential safety risks presented by DPFs and sets

the stage for an evaluation procedure that

establishes the ability of aftermarket DPFs to

function effectively and safely prior to their approval.

-- Special circumstances?

ACB contends that reconsideration of the JOP

order pursuant to subdivision (a) of Code of Civil

Procedure 1008 is also required because the Court

based the portion of the JOP order related to the

Verification Procedure on an argument raised

initially by CARB in a footnote to a supplemental

brief without providing ACB with an opportunity to

respond to the arguments. ACB indicates that CARB

first raised that argument in footnote 1 to a

supplemental brief filed November13, 20 15, after

ACB had completed its briefing, and that CARB’s

arguments in footnote 1 exceeded the scope of the

supplemental brief on the issue of whether CARB

had waived arguments in support of its motion for

judgment on the pleadings related to section

2025(q)(5) of the Truck and Bus Regulation.

According to ACB, it had no full and fair opportunity

to show that the provisions of the Verification

A-51

Procedure do not negate or contradict ACB’s

allegations regarding the dangers created by DPFs.

As ACB points out, new circumstances justifying

reconsideration pursuant to subdivision (a) of section

1008 may include a situation where a court rules

against a party on the basis of an opposing party’s

supplemental points and authorities without

providing the party against whom the court has

ruled a full and fair opportunity to respond to the

supplemental points and authorities. (See Gravillis v.

Coldwell Banker Residential Brokerage Co. (2006)

143 Cal.App.4th 761, 772-773; Johnston v. Corrigan

(2005) 127 Cal.App.4th 553, 556; Ko/lander

Construction, Inc. v. Superior Court (2002) 98

Cal.App.4th 304, 3 14, overruled on another ground

in Le Francois v. Goel (2005) 34 Cal.4th 1094, 1 107,

fn. 5.) Whether such circumstances exist to justify

reconsideration here presents a close question.

The text and associated footnote in CARB’s

supplemental brief, which the JOB order

subsequently referenced and which ACB identifies as

the circumstance warranting reconsideration, states:

“The Truck and Bus Regulation and the

Verification Regulation cannot conflict with

the public safety laws because trucks that are

shown to be unsafe to operate with retrofit

diesel particulate filters are exempt under the

safety exemption.1

______________________________

1There is no conflict, and, therefore, no valid

legal challenge to the Board’s regulations,

because of the safety exemption. (See Cal.

Code Regs., tit. 13, § 2025, subd. (q)(5).) ACB’s

members can comply with both the Board’s

regulations and the public safety laws by

either retrofitting their trucks with filters or

A-52

by demonstrating that it would be unsafe to

retrofit them.

Moreover, the filters are evaluated for safety

before the Board verifies them. (Cal. Code

Regs., tit. 13, §§ 2702, subd. (d)(2.7), 2706,

subd. (w)(l).) Filter manufacturers must also

demonstrate that their filters are “compatible”

with particular truck models by showing that

the filters do “not cause damage to the engine

or engine malfunction,” do “not cause

backpressure

outside

the

engine

manufacturer’s specified limits,” and do not

prevent the trucks from performing their

‘normal functions.’ (Id., § 2705, subd. (a)(l).)”

This text and associated footnote reflect the

explicit connection and interdependence between the

Truck and Bus Regulation and the Verification

Procedure in section 2025(q)(5), throughout the

Truck and Bus Regulation, and I the TAC and its

iterations

-a

connection

and

interdependence that makes consideration of both

regulations immediately relevant and essential to a

determination of whether, as a matter of law, the

DPF retrofit requirement is consistent with state and

federal safety laws. By its plain terms, the Truck and

Bus Regulation requires the retrofit of diesel engines

with a “Verified Diesel Emission Control Strategy” or

“VDECS” which has been verified pursuant to the

Verification Procedure. (Cal. Code Regs., tit. 13, §

2025(d)( 18), (d)(35), (d)(60), (g)-(k), (q)-(r).) Section

2025(q)(5) itself provides a procedure for owners of

diesel vehicles or fleets to obtain an extension of the

VDECS retrofit requirement for particular vehicles

upon a showing that any VDECS impairs the safe

operation of the vehicle; i.e., a VDECS “(A) cannot be

safely installed or operated in a particular vehicle

A-53

application; or (B) its use would make compliance

with

the

occupational

safety

and

health

requirements . . . impossible.”

Similarly, the allegations of the TAC explicitly tie

the Truck and Bus Regulation to the Verification

Procedure in alleging the dangers presented by the

DPF retrofit requirement, in challenging the validity

of the requirement, and in requesting declaratory

and injunctive relief. (TAC, ¶¶ 10, 12, 12a, 14, 14c,

17, 17a, 17b, 17f, 17g, 17h, 23c, 24, 24c, and “Relief

Requested” ¶¶ 1, 2.) And ACB’s opposition to CARB’s

motion for judgment on the pleadings echoes many of

these allegations intertwining the two regulatory

provisions in one cause of action. (See Plaintiff’s

Opposition to Defendants’ Motion for Judgment on

the Pleadings, filed 9/4/2015, pp. 6: 13-8: 3

(indicating that CARB promulgated the Verification

Procedure “parallel to the Truck and Bus Regulation”

and “as an integral part of its implementation”).)

Read in this framework, the text and associated

footnote in CARB’s supplemental brief present

section 2025(q)(5) of the Truck and Bus Regulation

and various sections of the Verification Procedure as

interdependent regulatory provisions supporting

CARB’s argument that the regulations do not conflict

with public safety laws as a matter of law. The text

and footnote do not raise an argument independent

of that raised by section 2025(q)(5). Indeed, the DPF

public safety issues to be addressed in subsections

(A) and (B) of section 2025(q)(5) largely coincide with

the DPF performance and safety issues addressed by

the Verification Procedure. (See, e.g., §§ 2704(k) (3),

(4), (5); 2705 (a)( 1); 2706(f)(1), (f)(3); 2706(u)(3)(B);

2706(w).)

Nonetheless, the text and associated footnote in

CARB’s supplemental brief may have been relatively

inconspicuous and poorly timed to reasonably prompt

A-54

a response by ACB before or on December 1 1, 20 15,

when the Court heard further argument by the

parties on CARB’s motion for judgment on the

pleadings. Therefore, to assure that ACB has had a

full and fair opportunity to respond to the substance

of the text and associated footnote in CARB’s

supplemental brief, the Court grants ACB’s motion

for reconsideration and proceeds to reconsider its

JOP order in light of the briefing in support of ACB’s

motion for reconsideration.6

Reconsideration

ACB contends that the Court’s JOP order

improperly concluded that the safety provisions of

the Verification Procedure negate or contradict the

factual allegations of the TAC. ACB explains that, in

considering CARB’s motion for judgment on the

pleadings, the Court was required to accept as true

its allegations that the installation of DPFs in

vehicles pursuant to the Truck and Bus Regulation

creates health and safety risks because DPFs are

inherently dangerous: they operate at very high

temperatures, particularly during regeneration, and

lead to excessive backpressure, causing engine

malfunctions, damage and fires. ACB points to four

passages in CARB’s Initial Statement of Reasons for

the aftermarket DPF evaluation procedure as

concessions by CARB that DPFs are dangerous in

normal operating conditions, inevitably deteriorating

over time and causing engine malfunctions, damage

and fires. According to ACB, CARB concedes that the

6 Because the Court grants ACB’s motion for reconsideration

pursuant to subdivision (a) of section 1008, the Court need not

respond to ACB’s request that the Court reconsider the JOP

order on its own initiative pursuant to its inherent

constitutional power.

A-55

safety provisions of the Verification Procedure do not

prevent DPF deterioration and deficiencies from

occurring and resulting in these harms, even when

owners and operators of vehicles retrofitted with

verified DPFs adequately maintain the vehicles.

Further, ACB indicates that CARB verified 33

DPFs prior to the amendment of the Verification

Procedure in 2013 which added or expanded most of

the safety provisions. Thus, ACB argues, the safety

provisions could not have been applied to the 33

DPFs to abate their inevitable deterioration and

harm to engine functionality and vehicle safety.

Lastly, ACB proposes to amend the TAC with

allegations that section 2025(q)(S) of the Truck and

Bus Regulation and various sections of the

Verification Procedure are ineffective in ensuring

DPF safety because DPF devices are inherently

dangerous, as illustrated by:



CARB’s concessions in the rulemaking·

documents for an aftermarket DPF evaluation

procedure;

Investigative findings by Cal-Fire Battalion

Chief Richard Lopez that certain roadside

bush fires had been caused by DPF fragments

expelled from the exhaust system of a passing

vehicle;

An insurance investigator’s belief that a truck

fire occurring during DPF regeneration was

caused by DPF’s high temperatures during

regeneration, and the insurance company’s

determination that the fire was most likely

from the exhaust treatment system; and

A trucking company which has had to replace

20 turbochargers on its trucks during the last

five years, after the Truck and Bus Regulation

required the company to equip seven of its

A-56

twelve trucks with DPFs, and which had to

replace only three turbochargers during the

previous four years.

Upon considering the foregoing arguments

regarding the sufficiency of the TAC’s factual

allegations to state a cause of action and ACB’s

proposed amendment of the TAC, the Court again

concludes that the provisions of the Verification

Procedure contradict and negate the factual

allegations of the TAC that DPFs are inherently

dangerous and inevitably cause engine malfunctions,

engine damage and engine fires. These allegations

disregard and/or misstate the provisions of the

Verification Procedure that minimize and avoid

potential DPF risks and thereby ensure the safety of

using verified DPFs to meet the retrofit requirement

of the Truck and Bus Regulation.

The TAC currently alleges that DPFs installed in

diesel trucks and buses pursuant to the retrofit

requirement of the Truck and Bus Regulation cause

various engine malfunctions, damage and fires as a

result of high temperatures required for DPF

regeneration, excessive engine exhaust backpressure

due to DPF clogging, and sensors which fail to timely

alert truck operators of excessive backpressure and

temperatures. The TAC further alleges that the

Verification

Procedure

does

not

require

comprehensive safety testing of DPF devices prior to

verifying them for on-road use and, instead, relies on

the recall provisions of the Verification Procedure as

amended in 20 13 to address a severe safety issue

“long after Californians have been exposed to the

risks inherent in these technologically flawed

devices.” (TAC, ¶ 17h. See ACB’s Opposition to

Defendants’ Motion for Judgment on the Pleadings,

filed 9/4/2015, pp. 6: 13-8: 3.) ACB’s proposed

A-57

amendment of the TAC in light of the JOP order

alleges that the safety provisions of the Verification

Procedure are ineffective in ensuring safe DPF

operation.

Neither the current TAC allegations nor the

proposed TAC amendment takes into account the

specific requirements of the Verification Procedure

that manage and avoid the potential risks of DPFs,

including high temperatures, clogging, excessive

backpressure and undependable monitors or sensors.

Since 2003, CARB has responded in the Verification

Procedure to these potential risks with stringent

DPF performance standards and rigorous testing

requirements to minimize and avoid the risks. CARB

has not, as ACB assumes, conceded in the

Verification Procedure or in the recent rulemaking

proceeding for an aftermarket DPF evaluation

procedure that the potential risks are inevitably

realized as DPFs deteriorate with on-road use.

Before verification is granted and on-road use is

permitted pursuant to the Verification Procedure,

each DPF must complete extended durability testing

in the field and demonstrate that the DPF remains

physically intact and fully functional, well mounted

with no signs of leakage or other visibly detectable

problems; does not cause any damage to the engine

or vehicle; does not cause engine malfunction or

detract from the vehicle’s ability to perform its

normal functions; and does not cause backpressure to

exceed the engine manufacturer’s specified limits or

result in engine damage. (Cal. Code Regs., tit. 13, § §

2704(e), (k); 2705(a)(l); 2706(f)(l).) For in-field

durability testing, a third-party such as the owner or

operator of the vehicle used must report in writing on

overall

performance,

maintenance

required,

problems encountered, and the visible condition of

the DPF following the testing period. (Id., § 2704(f).)

A-58

And the DPF manufacturer must prepare detailed

DPF and engine maintenance instructions for owners

of vehicles in which the DPF is to be installed. (Id., §

2706(h), (l).)

If a DPF can cause exhaust backpressure to

increase overtime, the DPF manufacturer must

submit information describing how to reduce the

backpressure and must provide for the installation of

a backpressure monitor to notify the vehicle operator

of high backpressure conditions both when the high

backpressure limit is approached and when the limit

is reached or exceeded. (Id., § 2706(f)(2), (f)(3).) The

functional durability of a backpressure monitor for a

DPF must be established by additional testing after

the DPF has completed durability testing. (Id., §

2704(j).)

Specifically with respect to DPF safety, the DPF

manufacturer applying for verification must give

consideration to safety and catastrophic failure in

the design of the DPF. (Id.,§§ 2702(d)(2. 7), 2706(w).)

The manufacturer must provide an analysis of all

potential safety and catastrophic failure issues

associated with the use of the DPF, including but not

limited to the effects of uncontrolled regeneration,

improper maintenance, high exhaust temperatures,

and sensor failures. (Ibid.) For any potential safety or

catastrophic

failure

issue

identified,

the

manufacturer must provide a detailed description of

safety measures to mitigate the risk. (Ibid.) On the

basis of the analysis and other information, CARB

may require additional safety testing and design

modifications of the DPF and may deny verification if

a satisfactory demonstration of safety is not made.

(Ibid.)

After verification, a DPF may be installed in a

vehicle only by an authorized party in accordance

with the terms and conditions of its verification. (Id.,

A-59

§ 2706(q), (t), (u).) A pre-installation assessment

must demonstrate that the DPF is compatible with

the vehicle’s engine and that the engine is in a

proper state of maintenance and operating within

the manufacturer’s specifications. (Ibid.) And the

location of the DPF must comply with applicable

safety standards, including the standards of the

Federal Motor Carrier Safety Administration for the

safe operation of exhaust systems. (Ibid. See 49

C.F.R . § 393.83 (a).)7

Also after verification, in-use compliance testing

must be conducted to demonstrate that the DPF is

intact and functioning in actual use as originally

verified. (Id., § 2709, (h), (l)-(o).) CARB may revoke

verification and may initiate a recall when a DPF

fails in-use compliance testing, warranty claims for

the DPF exceed 4 percent of its sales and leases,

verification requirements are not observed, or other

relevant information indicates that the DPF has the

potential for catastrophic failure or other safety

related failure. (Id., § 2709(0), (p).)

Finally, contrary to ACB’s contention, the

amendment of the Verification Procedure in 2013 to

add and clarify several of its

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