Dalton Trucking, Inc. v. U.S. Envtl. Prot. Agency

• Decision Date: 18 December 2015
• Docket Number: Nos. 13–1283,13–1287.,s. 13–1283
• Citation: 808 F.3d 875
• Parties: DALTON TRUCKING, INC., et al., Petitioners v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, In her Official Capacity as Administrator of the United States Environmental Protection Agency, Respondents California Air Resources Board, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

808 F.3d 875

DALTON TRUCKING, INC., et al., Petitioners

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, In her Official Capacity as Administrator of the United States Environmental Protection Agency, RespondentsCalifornia Air Resources Board, Intervenor.

Nos. 13–1283

13–1287.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 9, 2015.

Decided Dec. 18, 2015.

Theodore Hadzi–Antich argued the cause for petitioners. With him on the joint briefs were M. Reed Hopper and Lawrence J. Joseph.

Joshua M. Levin, Senior Trial Attorney, U.S. Department brief was John C. Cruden, Assistant Attorney General. Michael J. Horowitz, Attorney Advisor, U.S. Environmental Protection Agency, entered an appearance.

Ross H. Hirsch, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for intervenor. With him on the brief were Kamala D. Harris, Attorney General, and Robert W. Byrne, Senior Assistant Attorney General.

Before: GARLAND, Chief Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

This case involves consolidated petitions for review filed by Dalton Trucking, Inc., et al. (hereinafter "Dalton Trucking") and American Road and Transportation Builders Association ("ARTBA"), challenging a final decision by the Environmental Protection Agency ("EPA"). EPA's contested decision authorized California regulations intended to reduce emissions of particulate matter and oxides of nitrogen from in-use nonroad diesel engines. Simultaneous to filing its petition for review in this court, Dalton Trucking sought review of the same EPA decision in the United States Court of Appeals for the Ninth Circuit. ARTBA did not separately seek review in the Ninth Circuit, but instead sought and was granted leave to intervene on Dalton Trucking's behalf.

Believing that the D.C. Circuit is the proper venue for Petitioners' challenges, EPA moved to dismiss or, alternatively, transfer Petitioners' Ninth Circuit action to this court. The Ninth Circuit declined to rule on EPA's motion, holding it in abeyance pending a ruling by this court as to whether venue is proper in the D.C. Circuit. Before this court, Dalton Trucking and ARTBA argue that the Ninth Circuit is the proper venue for their challenges and seek dismissal or transfer of their petitions for review.

Venue in this case is governed by section 307(b)(1) of the Clean Air Act ("CAA" or "Act"). See 42 U.S.C. § 7607(b)(1). Pursuant to section 307(b)(1), venue over the challenges to the EPA action at issue lies exclusively with this court only if (1) the final action taken by EPA is "nationally applicable" or (2) EPA found that its final action was based on a determination of "nationwide scope or effect" and it published this finding. See id.

Petitioners claim that because EPA's decision does not satisfy either of the statutory avenues for filing in the D.C. Circuit, venue is not proper in this court. We agree. We therefore dismiss the petitions for review.

I. BACKGROUND

Section 209(e) of the Clean Air Act generally preempts states from adopting standards relating to the control of emissions from in-use nonroad diesel engines. See 42 U.S.C. § 7543(e)(1). California, however, may adopt emissions standards for in-use nonroad diesel engines if it applies for and receives a waiver of federal preemption from EPA. See 42 U.S.C. § 7543(e)(2)(A).

To receive a waiver of federal preemption, California is required to determine that its standards "will be, in the aggregate, at least as protective of public health and welfare as applicable Federal Standards." Id. Following such a determination, EPA must authorize a waiver application unless EPA finds that (1) California's determination was arbitrary and capricious, (2) "California does not need such California standards to meet compelling and extraordinary conditions," or (3) "California standards and accompanying enforcement procedures are not consistent with [section 209 of the Act.]" Id. § 7543(e)(2)(A)(i)-(iii). Once EPA authorizes California standards, other states may adopt and enforce identical provisions as their own, subject to certain conditions. Id. § 7543(e)(2)(B) ; see also Am. Trucking Ass'ns v. EPA, 600 F.3d 624, 628 (D.C.Cir.2010).

In July 2007, the California Air Resources Board, California's air pollution agency, approved regulations to reduce particulate matter and oxides of nitrogen emissions from in-use nonroad diesel engines (hereinafter "Nonroad Fleet Requirements"). As amended, the Nonroad Fleet Requirements apply to persons, businesses, or government agencies owning or operating in California in-use nonroad diesel engines with a maximum horsepower of 25 or greater.

On March 1, 2012, the California Air Resources Board requested that EPA authorize California's Nonroad Fleet Requirements pursuant to section 209(e) of the Act. EPA granted the request. See Decision Granting a Waiver of Clean Air Act Preemption ("Nonroad Waiver Decision"), 78 Fed.Reg. 58,090 (Sept. 20, 2013). In its Nonroad Waiver Decision, EPA concluded "that those opposing California's request have not met the burden of demonstrating that authorization for California's Fleet Requirements should be denied based on any of the statutory criteria of section 209(e)(2)(A)." Id. at 58,121.

Dalton Trucking filed a petition for review of EPA's Nonroad Waiver Decision in both this court and in the United States Court of Appeals for the Ninth Circuit. See Dalton Trucking Inc. v. EPA, No. 13–74019 (9th Cir. Nov. 19, 2013). ARTBA, a nonprofit trade organization that represents the collective interests of the U.S. transportation and construction industries, also filed a petition for review of EPA's Nonroad Waiver Decision in this court. ARTBA additionally sought and was granted leave by the Ninth Circuit to intervene on Dalton Trucking's behalf in the action before that court. In both courts, Petitioners assert that in authorizing California's Nonroad Fleet Requirements, EPA misapplied the statutory requirements of section 209(e) and that EPA's decision was arbitrary and capricious or otherwise not in accordance with law.

EPA filed a motion to have the case before the Ninth Circuit dismissed or transferred to this court. The Ninth Circuit directed that the agency's motion be held in abeyance pending a ruling by this court as to whether Petitioners' challenges were "properly filed" in the D.C. Circuit. Petitioners now contend that venue is not proper in the D.C. Circuit.

II. ANALYSIS

Section 307(b)(1) of the Clean Air Act, titled "Administrative proceedings and judicial review," provides, in relevant part:

A petition for review of action of the Administrator in promulgating [certain enumerated nationally applicable actions] or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of [certain enumerated locally or regionally applicable actions] 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. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.

42 U.S.C. § 7607(b)(1).

Although section 307(b)(1) no where uses the phrase subject matter jurisdiction, in Harrison v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), the Supreme Court was clear that the provision confers jurisdiction on the courts of appeals. Once section 307(b)(1) is understood as a jurisdictional provision, it is apparent from its terms that the jurisdiction conferred extends both to "the United States Court of Appeals for the District of Columbia" and to the regional "United States Court of Appeals." It is also apparent from its terms and legislative history, that in addition to conferring subject matter jurisdiction on the Courts of Appeals, section 307(b)(1) is a venue provision. See Tex. Mun. Power Agency v. EPA, 89 F.3d 858, 867 (D.C.Cir.1996) (per curiam); see also Harrison, 446 U.S. at 590–91, 100 S.Ct. 1889. And in specifying venue, section 307(b)(1) distinguishes between cases that may be filed only in the Court of Appeals for the D.C. Circuit and those that may be filed only in other U.S. Courts of Appeals. See Tex. Mun. Power Agency, 89 F.3d at 867. Thus, under section 307(b)(1), subject matter jurisdiction and venue are not coterminous.

Our decisions have not always distinguished between 307(b)(1)'s dual functions. For example, some opinions suggest in dicta that section 307(b)(1) gives this court "exclusive jurisdiction over challenges to final EPA actions," inadvertently suggesting that jurisdiction and venue under section 307(b)(1) are coterminous. See, e.g., Nat. Res. Def. Council v. EPA, 643 F.3d 311, 317 (D.C.Cir.2011). Such opinions do not address, no doubt because the parties did not raise the issue, section 307(b)(1)'s undeniable vesting of subject matter jurisdiction in both "the United States Court of Appeals for the District of Columbia" and regional "United States Court of Appeals." Indeed, there are a plethora of decisions from other circuits resolving section 307(b)(1) challenges to final agency actions having only local or regional impact. See, e.g., Nat. Res. Def. Council, Inc. v. EPA, 638 F.3d 1183 (9th Cir.2011) ; New York v. EPA, 133 F.3d 987 (7th Cir.1998).

In addition, past opinions asserting that section 307(b)(1) confers exclusive jurisdiction on the D.C. Circuit are not...