548 F.3d 738 (9th Cir. 2008), 06-56632, Romoland School Dist. v. Inland Empire Energy Center, LLC

Docket Nº:06-56632.
Citation:548 F.3d 738
Party Name:ROMOLAND SCHOOL DISTRICT; Center for Community Action and Environmental Justice; Communities for a Better Environment; California Unions for Reliable Energy; Kristopher Johns; Donald Lee Selby, Jr., Plaintiffs-Appellants, v. INLAND EMPIRE ENERGY CENTER, LLC; South Coast Air Quality Management District (SCAQMD); Barry R. Wallerstein, D. Env. In his
Case Date:November 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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548 F.3d 738 (9th Cir. 2008)

ROMOLAND SCHOOL DISTRICT; Center for Community Action and Environmental Justice; Communities for a Better Environment; California Unions for Reliable Energy; Kristopher Johns; Donald Lee Selby, Jr., Plaintiffs-Appellants,


INLAND EMPIRE ENERGY CENTER, LLC; South Coast Air Quality Management District (SCAQMD); Barry R. Wallerstein, D. Env. In his official capacity, Defendants-Appellees.

No. 06-56632.

United States Court of Appeals, Ninth Circuit.

November 18, 2008

Argued and Submitted March 3, 2008.

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Marc D. Joseph and Suma Peesapati, Adams Broadwell Joseph & Cardozo, South San Francisco, CA, for the plaintiffs-appellants.

Robert A. Wyman, Michael G. Romey, and Ernest J. Hahn, Latham & Watkins, LLP, Los Angeles, CA, for defendant-appellee Inland Empire Energy Center.

Bradley R. Hogin, Woodruff Spradlin & Smart, Orange, CA, for defendants-appellees South Coast Air Quality Management District and Barry R. Wallerstein.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew and Andrew J. Guilford, District Judges, Presiding. D.C. No. CV-06-02514-AG.


Opinion by Judge GOULD; Concurrence by Judge WALLACE.

GOULD, Circuit Judge:

The Romoland School District and several individuals and environmental groups, (collectively, “ Plaintiffs" ) appeal the denial of their motion for a preliminary injunction and the dismissal with prejudice of their two claims against Inland Empire Energy Center (“ IEEC" ), a wholly-owned subsidiary of General Electric Company. Plaintiffs brought suit against IEEC under the citizen suit provision of the Clean Air Act (“ CAA" or “ Act" ), 42 U.S.C. § 7604, in connection with IEEC's plans to construct an 810-megawatt power plant approximately 1,100 feet from the Romoland Elementary School in Riverside County, California. IEEC's motion to dismiss contended, among other things, that the district court lacked jurisdiction over the suit because IEEC had been granted a permit under Title V of the CAA, 42 U.S.C. § § 7661-7661f, and such permits may not be challenged in civil or criminal enforcement proceedings in federal district court under 42 U.S.C. § 7604.

Plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District (“ the air district"

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or “ SCAQMD" ), 1 the local air pollution control agency that issued the relevant permit and authorized IEEC to begin construction of the power plant. After the district court denied Plaintiffs' motion for a preliminary injunction and dismissed their claims against IEEC under Federal Rule of Civil Procedure 12(b)(6), Plaintiffs sought voluntarily to dismiss their claims against the air district under Federal Rule of Civil Procedure 41(a)(2) to gain “ final judgment for purposes of an appeal." The district court granted Plaintiffs' motion, but the accompanying order did not state that the dismissal of the claims against the air district was with prejudice.

We must resolve two threshold issues of jurisdiction before we may consider the merits of Plaintiffs' claims: (1) whether the district court's dismissals of the claims in this case present us with a final decision pursuant to 28 U.S.C. § 1291; and (2) whether the Central District of California was an appropriate forum, and 42 U.S.C. § 7604 an appropriate statutory basis, for Plaintiffs' challenge such that the district court had jurisdiction over it pursuant to 28 U.S.C. § 1331. We conclude that the orders appealed from are part of a final judgment and thus that we have jurisdiction over this case, but that the district court did not. Accordingly, we affirm the district court's dismissal of the claims against IEEC with prejudice, hold that the claims against the air district should also be deemed to be dismissed with prejudice notwithstanding the voluntary dismissal order's silence on this point, and further hold that all proceedings on Plaintiffs' motion for a preliminary injunction are void because the district court was without jurisdiction to entertain that motion.



Congress passed the Clean Air Act in 1970 “ to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1). Towards this end, the United States Environmental Protection Agency (“ EPA" ) is responsible for identifying air pollutants that may endanger public health and welfare and for promulgating standards for the maximum allowable concentrations of each such pollutant in the air, known as National Ambient Air Quality Standards or NAAQS. 42 U.S.C. § § 7408(a), 7409. The CAA further requires the EPA to divide each state into air quality control regions, see id. § 7407(b)-(c). SCAQMD oversees one such region in California, the South Coast Air Basin, comprising Orange County and portions of Los Angeles, Riverside, and San Bernardino Counties. See Engine Mfrs. Ass'n v. South Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1035 (9th Cir.2007). Each air quality control region is labeled as either “ attainment" or “ nonattainment" for each identified pollutant depending on whether the average level of that pollutant in the air in that region is at or below (attainment) or above (nonattainment) the level mandated by the NAAQS. South Coast Air Basin is an attainment area for some air pollutants like lead but is a nonattainment area for ozone, carbon monoxide, and particulate matter smaller than ten microns in diameter, known as PM10.

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Each state must also submit to EPA a State Implementation Plan or SIP establishing “ enforceable emission limitations and other control measures" designed to preserve attainment of the NAAQS in attainment areas and achieve attainment in nonattainment areas. See 42 U.S.C. § 7410(a)(2)(A). One required element of all SIPs for states with nonattainment areas, introduced into the CAA through the 1977 amendments, is a permitting program for new or modified major stationary sources of air pollution, such as electrical generators or factory smokestacks, in those nonattainment areas. See 42 U.S.C. § § 7410(a)(2)(C), 7502(c)(5). Under this “ new source review" (“ NSR" ) program, any new project or modification to an existing project that would emit more than a threshold amount of a pollutant for which that region has not attained the NAAQS must apply for a permit to construct and operate that pollution source, and such a permit may only be granted if the project uses technology that will ensure “ the lowest achievable emission rate" and obtains emission reduction credits to offset the emissions that it will produce. 42 U.S.C. § 7503(a)(1)-(2). SCAQMD implements its NSR program, now part of the California SIP, through Rule 1303,2 which provides that the air district “ shall deny the Permit to Construct for any new or modified source which results in a net emission increase in a nonattainment air contaminant" unless the applicant shows through modeling that the proposed activity “ will not cause a significant increase" in pollution and that all emissions will be offset with emission reduction credits. See Rule 1303(b)(1)-(2).3

Once a local rule, like SCAQMD Rule 1303, becomes part of an EPA-approved SIP after a public notice and comment period, it becomes federally enforceable in district court through the CAA's citizen suit provision, 42 U.S.C. § 7604. This provision states that “ [a]ny person may commence a civil action on his own behalf against any person ... who is alleged ... to be in violation of ... an emission standard or limitation," including “ any ... standard, limitation, or schedule established under ... any ... State Implementation Plan approved by the [EPA] administrator...." 42 U.S.C. § § 7604(a)(1), 7604(f)(3)-(4). “ The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation ... and to apply any appropriate civil penalties...." Id. § 7604(a).

In 1990, Congress amended the CAA to add a nationwide system of operating permits like those mandated by other environmental laws such as the Clean Water Act.

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See S.Rep. No. 101-228, at 349 (1989) [hereinafter Senate Report]. The 1990 amendments made it “ unlawful ... to operate" many sources of air pollution, including any source located in a nonattainment region that would already have been subject to the NSR requirements of 42 U.S.C. § 7503, “ except in compliance with a permit issued by a permitting authority under this title." 42 U.S.C. § 7661a(a). These operating permit provisions, commonly referred to as Title V of the CAA, also specify that “ [e]ach permit issued under this title shall include enforceable emission limitations and standards, a schedule of compliance, ... and such other conditions as are necessary to assure compliance with applicable requirements of this Act, including the requirements of the applicable [state] implementation plan." 42 U.S.C. § 7661c(a). Rather than imposing an additional set of requirements on pollution sources, this permitting scheme was intended to “ incorporate the requirements of the Act (including SIP requirements) that are [already] applicable to the source." Senate Report at 350. See also 57 Fed.Reg. 32250, 32251 (July 21, 1992) (EPA notice of regulations implementing Title V) (“ While Title V generally does not impose substantive new requirements, ... [t]he program will ... clarify, in a single document, which requirements apply to a source and, thus, should enhance compliance with the requirements of the Act." ).

As with the SIPs under 42 U.S.C. § 7410, each state or local pollution control agency was to design a program for administering Title V permits that EPA would either approve or...

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