Alliance for Cal. Bus. v. State Air Res. Bd., C082828

CourtCalifornia Court of Appeals
Writing for the CourtRobie, J.
Citation234 Cal.Rptr.3d 22,23 Cal.App.5th 1050
Parties ALLIANCE FOR CALIFORNIA BUSINESS, Plaintiff and Appellant, v. STATE AIR RESOURCES BOARD, Defendant and Respondent. Jack Cody, Plaintiff and Appellant, v. State Air Resources Board et al., Defendants and Respondents.
Docket NumberC083083,C082828
Decision Date29 May 2018

23 Cal.App.5th 1050
234 Cal.Rptr.3d 22

ALLIANCE FOR CALIFORNIA BUSINESS, Plaintiff and Appellant,
v.
STATE AIR RESOURCES BOARD, Defendant and Respondent.


Jack Cody, Plaintiff and Appellant,
v.
State Air Resources Board et al., Defendants and Respondents.

C082828
C083083

Court of Appeal, Third District, California. (Glenn). (Sacramento).

Filed May 29, 2018


Cannata, O'Toole, Fickes & Almazan, Therese Y. Cannata, San Francisco, Mark P. Fickes, and Zachary Colbeth, Walnut Creek, 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.

The Cullen Law Firm, Daniel E. Cohen and Noah M. Rich ; Brian Leighton Law Offices and Brian Leighton, Clovis, 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.

Robie, J.

23 Cal.App.5th 1053

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 approval. (Id. , § 7410(a)(1), (a)(3)(B).) Once approved by the Administrator and codified in the Code

234 Cal.Rptr.3d 25

of Federal Regulations, the SIP becomes federal law and may be enforced "by

23 Cal.App.5th 1054

either the State, the [Agency], or via citizen suits." ( Bayview Hunters v. Metropolitan Transp. (9th Cir. 2004) 366 F.3d 692, 695 ; California Dump Truck Owners Ass'n. v. Nichols (9th Cir. 2015) 784 F.3d 500, 503 ( Dump Truck ).)

The cases here seek the same relief and practical objective—to invalidate and render unenforceable, in whole or in part, albeit on different grounds, a state regulation known as the Truck and Bus Regulation1 (Regulation), which was approved by the Administrator as part of and incorporated into California's SIP. Plaintiff Jack Cody argues the Regulation violates the dormant commerce clause of the United States Constitution because it discriminates against out-of-state truckers by imposing a disproportionate compliance burden on them. Plaintiff Alliance for California Business2 (Alliance) argues the Regulation is unlawful because part of its mandate conflicts with state and federal safety laws. Defendants, including the California Air Resources Board (Board), raised lack of subject matter jurisdiction under section 307(b)(1)3 of the Act in both cases on appeal.4

The pertinent question is a discrete issue of statutory interpretation: whether section 307(b)(1) vests exclusive and original jurisdiction over these challenges to the Regulation incorporated into and approved as part of California's SIP in the Ninth Circuit Court of Appeals. We conclude it does and affirm the judgments for lack of jurisdiction.

GENERAL BACKGROUND

To assist in a better understanding of the factual and procedural background of these cases and the discussion that follows, we begin with the general background of the regulatory framework underlying the Act and its jurisdictional provisions.

23 Cal.App.5th 1055

I

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 42 U.S.C. § 7410(a)(2)(H).)

The Administrator is required to approve the state's SIP submission if it complies with the provisions of the Act and applicable federal regulations. ( 42 U.S.C. § 7410(k) ; 40 C.F.R. § 52.02(a) (2017).) Among other things, the SIP must contain "enforceable emission limitations and other control measures, means, or techniques

234 Cal.Rptr.3d 26

... as well as schedules and timetables for compliance," and provide "necessary assurances that the State ... will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof)." ( 42 U.S.C. § 7410(a)(2)(A), (E).)

In May 2011, the Board submitted the Regulation to the Agency for inclusion in California's SIP. ( 76 Fed.Reg. 40652, 40653 (July 11, 2011).) The Board had adopted the Regulation in 2008 to help California meet the national standards for fine particulate matter and ozone. ( Cal. Code Regs., tit. 13, § 2025, subd. (a) ; Dump Truck , supra , 784 F.3d at p. 503.) The Regulation generally sets forth stated deadlines by which certain 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.)

23 Cal.App.5th 1056

On July 11, 2011, the Agency published a proposed rule to approve California's request to incorporate the Regulation and other regulations into its SIP. (76 Fed.Reg., supra , at p. 40652.) The Agency explained the requirements and key concepts of the Regulation, including the requirements relating to the filters verified pursuant to the Verification Procedure. (Id . at pp. 40654-40656.) As part of its analysis, the Agency discussed the enforceability of the Regulation and found the state has adequate legal authority to implement the regulations. (Id . at pp. 40658-40659.) It further determined it "kn[e]w of no obstacle under Federal or State law in [the Board's] ability to implement the regulations." (Id . at p. 40658.)

On April 4, 2012, the Agency issued its final rule approving the Board's SIP submission, noting it received no comments on its proposed rule. ( 77 Fed.Reg. 20308-20314 (Apr. 4, 2012).) The Regulation was incorporated into California's SIP by reference. ( 40 C.F.R. § 52.220(c)(410) (2017).) In the final rule notice, the Agency reiterated the basis it used to evaluate the Regulation, including its determination that the state provided the necessary assurances required under the Act. (77 Fed.Reg., supra , at p. 20311.)

II

The Jurisdictional Statute

Section 307(b)(1) provides, in pertinent part: "A petition for review of the Administrator's action in approving or promulgating any implementation plan ... or any other final action of the Administrator under this Act ... which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit." ( 42 U.S.C. § 7607(b)(1).) The petition "shall be filed

234 Cal.Rptr.3d 27

within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise." ( Ibid . )

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

23 Cal.App.5th 1057

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...

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5 practice notes
  • Pub. Employees’ Ret. Sys. v. Santa Clara Valley Transp. Auth., C083355
    • United States
    • California Court of Appeals
    • May 29, 2018
    ...follows the recommendations of its staff in adjudicating administrative appeals.4 As a result, the futility exception does not apply.234 Cal.Rptr.3d 2223 Cal.App.5th 1049DISPOSITIONThe judgments in these matters are affirmed. Defendants shall recover costs of appeal. ( Cal. Rules of Court, ......
  • TransparentGov Novato v. City of Novato, A152324
    • United States
    • California Court of Appeals
    • April 10, 2019
    ...to the legal rights and duties of the respective parties" ( Alliance for California Business v. State Air Resources Bd. (2018) 23 Cal.App.5th 1050, 1068, 234 Cal.Rptr.3d 22 ), not merely " ‘ "an abstract or academic dispute." ’ " ( County of San Diego , supra , 164 Cal.App.4th at p. 606, 79......
  • All. For Cal. Bus. v. State Air Res. Bd., C088780
    • United States
    • California Court of Appeals
    • August 3, 2021
    ...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 re......
  • Loyd v. Loyd, B285512
    • United States
    • California Court of Appeals
    • November 29, 2018
    ...our independent review of questions of appealability (see Alliance for California Business v. State Air Resources Bd. (2018) 23 Cal.App.5th 1050, 1060), we elect to do so in this case.II. Standing to Sue for Wrongful Death Wrongful death is a statutorily created claim that comes into being ......
  • Request a trial to view additional results
5 cases
  • Pub. Employees’ Ret. Sys. v. Santa Clara Valley Transp. Auth., C083355
    • United States
    • California Court of Appeals
    • May 29, 2018
    ...follows the recommendations of its staff in adjudicating administrative appeals.4 As a result, the futility exception does not apply.234 Cal.Rptr.3d 2223 Cal.App.5th 1049DISPOSITIONThe judgments in these matters are affirmed. Defendants shall recover costs of appeal. ( Cal. Rules of Court, ......
  • TransparentGov Novato v. City of Novato, A152324
    • United States
    • California Court of Appeals
    • April 10, 2019
    ...to the legal rights and duties of the respective parties" ( Alliance for California Business v. State Air Resources Bd. (2018) 23 Cal.App.5th 1050, 1068, 234 Cal.Rptr.3d 22 ), not merely " ‘ "an abstract or academic dispute." ’ " ( County of San Diego , supra , 164 ......
  • All. For Cal. Bus. v. State Air Res. Bd., C088780
    • United States
    • California Court of Appeals
    • August 3, 2021
    ...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 re......
  • Loyd v. Loyd, B285512
    • United States
    • California Court of Appeals
    • November 29, 2018
    ...our independent review of questions of appealability (see Alliance for California Business v. State Air Resources Bd. (2018) 23 Cal.App.5th 1050, 1060), we elect to do so in this case.II. Standing to Sue for Wrongful Death Wrongful death is a statutorily created claim that comes into being ......
  • Request a trial to view additional results

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