All. For Cal. Bus. v. State Air Res. Bd.

• Decision Date: 03 August 2021
• Docket Number: C088780
• Court: California Court of Appeals Court of Appeals
• Parties: ALLIANCE FOR CALIFORNIA BUSINESS et al., Plaintiffs and Appellants, v. STATE AIR RESOURCES BOARD et al., Defendants and Respondents.

ALLIANCE FOR CALIFORNIA BUSINESS et al., Plaintiffs and Appellants, v. STATE AIR RESOURCES BOARD et al., Defendants and Respondents.

C088780

California Court of Appeals, Third District, Sacramento

August 3, 2021

NOT TO BE PUBLISHED

Super Ct. No. 34-2016-80002491-CU-WM-GDS

HOCH J.

In Alliance for California Business v. State Air Resources Bd. (2018) 23 Cal.App.5th 1050 (Alliance), this Court held that only the Ninth Circuit Court of Appeals has jurisdiction to consider legal challenges to a regulation requiring heavy trucks and machinery in California to comply with diesel particulate filter requirements.^[1] (Id. at pp. 1061-1062.) 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.” (Id. at p 1055, fn. 5, citing Cal. Code Regs., tit. 13, § 2025 subds. (d)(18), (35), (60), (e)-(g).) Alliance affirmed the dismissal of an action filed in Glenn County Superior Court by the Alliance for California Business (Alliance)^[2] to challenge the “ ‘legality [of the Regulation], as designed, approved and implemented by defendants.' ”^[3] (Alliance, at p. 1057.) Alliance centered on the argument that Alliance's “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 [diesel particulate filter] device' or suffer fines, penalties, and lost revenue due to the inability to operate their trucks in California.” (Ibid.)

This case was pending in Sacramento Superior Court when the decision in Alliance issued. With the benefit of guidance in Alliance, the trial court in this case determined that it lacked subject matter jurisdiction to adjudicate claims that the Board improperly implemented the Regulation. The trial court also determined that the statute of limitations and failure to exhaust administrative remedies barred the single cause of action advanced by the individual plaintiffs.

On appeal, plaintiffs contend (1) the trial court erred in determining that it lacked jurisdiction to adjudicate Alliance's claims, (2) the individual plaintiffs' claims were timely filed and properly exhausted under the circumstances of the procedure urged by the Board, (3) the trial court mistakenly believed that it lacked power to order the Board to grant the safety exemption to the individual plaintiffs, and (4) plaintiffs are able to amend their first amended complaint to state legally viable causes of action.

We conclude that the trial court properly granted defendants' demurrers without leave to amend. As the prayer for relief in the first amended complaint makes clear, this action essentially seeks to invalidate the Regulation. The plaintiffs' proposed second amended complaint indicates a continued focus on invalidating or indefinitely suspending the Regulation. Plaintiffs' attack on the regulation lies within the exclusive jurisdiction of the Ninth Circuit. We further conclude that the individual plaintiffs' sixth cause of action is barred for failure to comply with the applicable statute of limitations. Accordingly, we affirm.

BACKGROUND

The Truck and Bus Regulation

To provide context for the issues in this case, we draw on this court's discussion of the Regulation set forth in Alliance. Alliance explained that the Regulation arises under the federal Clean Air Act (42 U.S.C § 7401 et seq.) (Act). (Alliance, supra, 23 Cal.App.5th at p. 1053.) “The Act authorizes the United States Environmental Protection Agency (Agency) to promulgate national primary and secondary ambient air quality standards. (42 U.S.C. §§ 7408, 7409.) States, however, have the ‘primary responsibility for assuring air quality' and must each devise, adopt, and implement a state implementation plan... specifying how the state will achieve and maintain the national air quality standards. (Id., § 7407(a).) The [state implementation plan] is submitted to the Agency's administrator (Administrator) for approval. (Id., § 7410(a)(1), (3)(B).)” (Id. at p. 1053.)

Alliance further explained:

“The Administrator is required to approve the state's [state implementation plan] 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 [state implementation plan] must contain ‘enforceable emission limitations and other control measures, means, or techniques... as well as schedules and timetables for compliance,' and provide ‘necessary assurances that the State... will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof).' (42 U.S.C. § 7410(a)(2)(A), (E).)

“In May 2011, the Board submitted the Regulation to the Agency for inclusion in California's [state implementation plan]. (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); [Cal. Dump Truck Owners Ass'n. v. Nichols (9th Cir. 2015)] 784 F.3d [500, ] 503.) The Regulation generally sets forth stated deadlines by which certain diesel vehicles operating in California must be retrofitted with diesel particulate filters or upgraded to newer model engines with those filters. (Cal. Code Regs., tit. 13, § 2025, subds. (b), (d)(18), (35), (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, Warranty and In-Use Compliance Requirements for In-Use Strategies to Control Emissions from Diesel Engines.' (Cal. Code Regs., tit. 13, §§ 2700-2711)], which sets forth the procedures and requirements for manufacturers to obtain verification of their filters. (Cal. Code Regs., tit. 13, §§ 2025, subd. (d)(18), (35), (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 [state implementation plan]. (76 Fed.Reg., supra, at p. 40652.) The Agency explained the requirements and key concepts of the Regulation, including the requirements relating to the filters verified pursuant to the verification procedure. (76 Fed.Reg., supra, 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. (76 Fed.Reg., supra, 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.' (76 Fed.Reg., supra, at p. 40658.)

“On April 4, 2012, the Agency issued its final rule approving the Board's [state implementation plan] 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 [state implementation plan] 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.)” (Alliance, supra, 23 Cal.App.5th at pp. 1055-1056, fns. omitted.)

The Present Case

In November 2016, Alliance and the individual plaintiffs filed a complaint for declaratory relief in Sacramento County Superior Court. The complaint requested relief in the form of a declaration that diesel particulate filters “are inherently unsafe and mechanically unreliable, ” and that their requirement in California vehicles be largely prohibited. The complaint also requested that a writ of mandate issue to grant individual plaintiffs a safety exemption from the diesel particulate filter retrofit requirement.

In January 2018, Alliance and the individual plaintiffs filed a first amended complaint for declaratory and injunctive relief. Like the original complaint, the first amended complaint requested relief in the form of a declaration that the diesel particulate filters are inherently unsafe and mechanically unreliable. The first amended complaint added requests for declarations that the diesel particulate filters violated various federal constitutional provisions in addition to a declaration that the diesel particulate filter is not the best available control technology for reducing emissions. The individual plaintiffs sought relief suspending the diesel particulate filter requirement, implementing a new exemption process, and allowing owners and operators of buses to remove their diesel particulate filters.

The Board demurred and moved to strike the first amended complaint. The Board argued that exclusive concurrent jurisdiction barred this case because the same issues were pending in this court in Alliance, only the Ninth Circuit had subject matter jurisdiction, the trial court could not grant mandate relief by ordering the Board to exercise its discretion in a specific manner, and the individual plaintiffs' request for relief was barred by the statute of limitations. The non Board defendants separately demurred on grounds that there was no case or controversy between the plaintiffs and the non Board defendants. Plaintiffs opposed the demurrers filed by the Board and non Board defendants.

On March 26, 2018, the trial court in this case stayed the action pending decision by this court in Alliance....