Jensen Family Farms Inc. v. Monterey Bay Unified Air Pollution Control Dist.

• Decision Date: 04 November 2010
• Docket Number: No. 09–16790.,09–16790.
• Citation: 72 ERC 2025,644 F.3d 934
• Parties: JENSEN FAMILY FARMS, INC., a California corporation, Plaintiff–Appellant,v.MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT, Defendant–Appellee,California Air Resources Board, Defendant–Intervenor–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

644 F.3d 934

72 ERC 2025

11 Cal. Daily Op. Serv. 6416

2011 Daily Journal D.A.R. 7736

JENSEN FAMILY FARMS, INC., a California corporation, Plaintiff–Appellant,

v.MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT, Defendant–Appellee,California Air Resources Board, Defendant–Intervenor–Appellee.

No. 09–16790.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 4, 2010.*Filed May 27, 2011.

Matthew S. Hale, Newport News, VA; for plaintiff-appellant Jensen Family Farms, Inc.Charles J. McKee, County Counsel, and Leslie J. Girard, Assistant County Counsel, County of Monterey, Salinas, CA; for defendant-appellee Monterey Bay Unified Air Pollution Control District.Edmund G. Brown, Attorney General, and Kathleen Kenealy and Gavin G. McCabe, Deputy Attorneys General, San Francisco, CA; for defendant-intervenor-appellee California Air Resources Board.Appeal from the United States District Court for the Northern District of California, James Ware, Chief District Judge, Presiding. D.C. No. 5:08–cv–05003–JW.Before: RICHARD A. PAEZ and CARLOS T. BEA, Circuit Judges, and KEVIN THOMAS DUFFY, District Judge.^**

OPINION

PAEZ, Circuit Judge:

In 2007, the Monterey Bay Unified Air Pollution Control District (District) adopted and began enforcing rules that regulate diesel-powered engines. In particular, the District's regulatory regime: (1) requires owners and operators to register and pay fees for certain diesel engines used in agricultural operations, and (2) sets emissions standards for stationary diesel engines within the District. The principal question in this case—among other questions—is whether the District's rules are preempted by the federal Clean Air Act (CAA), 42 U.S.C. § 7401 et seq. We hold that the District rules are not preempted, and affirm the district court's judgment on the pleadings in favor of the defendants.

I. FACTS

Jensen Family Farms, Inc. (Jensen) is a for-profit agricultural corporation that is incorporated under the laws of California and has its principle place of business in Monterey, California. As part of its operations, Jensen owns and operates diesel engines, including both stationary and portable diesel engines. Jensen uses diesel engines to provide power to irrigation pumps on its farms.

The California Air Resources Board (CARB) is California's air pollution control agency. Cal. Health & Safety Code § 39602. Under California law, CARB is required to adopt airborne toxic control measures (ATCMs) for toxic air contaminants emitted from nonvehicular sources. Id. § 39666(a). In 1998, CARB determined that particulate matter emissions from diesel-fueled engines were a toxic air contaminant. Accordingly, in 2004, CARB adopted an ATCM to address diesel particulate matter emissions. See Cal.Code Regs. tit. 17, § 93115 et seq.

The District is a political subdivision of the State of California, and comprises Monterey, Santa Cruz, and San Benito Counties. Under state law, the District has primary responsibility for controlling air pollution from all sources other than motor vehicle emissions for its three constituent counties. Cal. Health & Safety Code § 40000. Shortly after CARB adopts an ATCM, the District is required to either implement and enforce the ATCM, or adopt and enforce an equally effective or more stringent regulation (sometimes referred to as a “replacement rule”). Cal. Health & Safety Code § 39666(d).

In May 2007, the District adopted Rules 220, 310, and 1010 (collectively, the “Rules”). Rule 220 requires owners or operators of diesel engines to register with the District any diesel engine of 50 brake horsepower (“bhp”) or larger that is used for agricultural operations. Rule 310 imposes application fees and annual registration fees on the owners and operators of engines that are subject to Rule 220's registration scheme. In February 2008, Jensen registered several engines with the District and paid the required fees. Rule 1010—the third District rule that Jensen challenges—sets emissions standards for stationary diesel engines. Rule 1010 is a “replacement rule” for CARB's ATCM for diesel particulate matter. See Cal.Code Regs. tit. 17, § 93115 et seq.

In November 2008, Jensen sued the District, alleging that: (1) all of the District's Rules are preempted by the CAA; (2) Rules 220 and 310 violate certain provisions of California law; and (3) the Rules violate Jensen's due process rights. After the District filed its answer, Jensen moved for summary judgment and a permanent injunction. While Jensen's motion was pending, the district court granted CARB's motion to intervene. The District and CARB (collectively, “Defendants”) then filed a joint motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). After hearing argument on both Jensen's and Defendants' motions, the court entered a final judgment granting Defendants' motion for judgment on the pleadings and denying Jensen's motion for summary judgment and permanent injunctive relief.

The district court first concluded that Rules 220 and 310 are not preempted by the CAA because Rules 220 and 310 are not “standards or other requirements relating to the control of emissions.” The district court also rejected Jensen's claim that Rules 220 and 310 violate California law. The district court next held that because Rule 1010 applies only to stationary sources, it is not preempted by the CAA. Finally, the district court rejected Jensen's due process challenge after concluding that there was a rational basis for the Rules. Jensen timely appealed the district court's judgment.¹

II. ANALYSIS

A. Federal Preemption

We start with an overview of the federal Clean Air Act (CAA). The CAA makes “the States and the Federal Government partners in the struggle against air pollution.” General Motors Corp. v. United States, 496 U.S. 530, 532, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990). “The basic structure of this partnership has not changed” since the CAA's inception. Engine Mfrs. Ass'n v. EPA (“ EMA ”), 88 F.3d 1075, 1078 (D.C.Cir.1996).

The CAA governs emissions from both stationary and mobile sources.² The direct regulation of emissions from stationary sources is primarily left to the states. CAA § 116, 42 U.S.C. § 7416; see also EMA, 88 F.3d at 1079 (describing a “history of detailed state regulation of stationary sources”). On the other hand, the federal government sets nationwide emissions standards for mobile sources.³ The category of “mobile sources” includes both motor vehicles and “nonroad” sources. See CAA § 202, 42 U.S.C. § 7521 (giving the Administrator of the Environmental Protection Agency (EPA) the authority to set emissions standards for new motor vehicles); CAA § 213, 42 U.S.C. § 7547 (same for nonroad sources). Because the regulation of mobile source emissions is a federal responsibility, Congress has expressly preempted states from setting emissions standards for mobile sources. CAA § 209(a), 42 U.S.C. § 7543(a) (preempting state regulation of new motor vehicle emissions); CAA § 209(e), 42 U.S.C. § 7543(e) (preempting state regulation of emissions from nonroad mobile sources). We consider Jensen's federal preemption claims against this backdrop.

1. District Rules 220 and 310

District Rule 220 provides that “[b]efore any 50 bhp or larger diesel engine or engines may be operated, the owner or operator shall register such engine(s) by submitting [registration information] to the District....” Rule 220's registration requirements apply only to “diesel engine[s] of 50 brake horsepower or larger utilized at an agricultural operation.” District Rule 310 provides that “[e]very applicant for [a] diesel engine registration shall pay [a registration fee].”

The registration and fee requirements of Rules 220 and 310 apply to diesel engines used at agricultural operations, which are nonroad sources. See CAA § 209(e)(1), 42 U.S.C. § 7543(e)(1) (describing as “nonroad” engines or vehicles used in farm equipment). Section 209(e) of the CAA expressly prohibits states from setting emissions standards for nonroad sources. In particular, section 209(e) provides:

(1) Prohibition on certain State standards

No State or any political subdivision thereof shall adopt or attempt to enforce any standard or other requirement relating to the control of emissions from either of the following new nonroad engines or nonroad vehicles subject to regulation under this chapter—

(A) New engines which are ... used in farm equipment or vehicles and which are smaller than 175 horsepower.

...

(2) Other nonroad engines or vehicles

(A) In the case of any nonroad vehicles or engines other than those referred to in ... paragraph (1), the Administrator shall ... authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines....

42 U.S.C. § 7543(e) (emphasis added).

Critically, the express preemption provision of § 209(e)(1) applies only to “standard[s] or other requirement[s] relating to the control of emissions” from certain new nonroad engines and vehicles. Section 209(e)(2) addresses other types of nonroad sources. See EMA, 88 F.3d at 1093 (rejecting EPA interpretation that § 209(e)(2) applies only to new nonroad sources) (cited approvingly in Pacific Merchant Shipping Ass'n v. Goldstene (“ Pacific Merchant ”), 517 F.3d 1108, 1113 (9th Cir.2008)). Section 209(e)(2) requires California to obtain EPA authorization before adopting “standards or other requirements relating to the control of emissions” from nonroad engines not covered by section 209(e)(1). We have held that section 209(e)(2) “creates a sphere of implied preemption surrounding those regulations for which California must obtain authorization.” Pacific Merchant, 517 F.3d at 1113. “Any such standard or requirement that the EPA has not duly authorized, therefore, is impliedly preempted by section 209(e)(2).” Nat'l Ass'n of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., 627...