People of the State of Ca. v. USA

• Decision Date: 14 June 2000
• Docket Number: No. 99-15388,99-15388
• Citation: 215 F.3d 1005
• Parties: (9th Cir. 2000) PEOPLE OF THE STATE OF CALIFORNIA, by the Sacramento Metropolitan Air Quality Management District, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; DEPARTMENT OF AIR FORCE; SACRAMENTO AIR LOGISTICS CENTER; MCCLELLAN AIR FORCE BASE, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1005

215 F.3d 1005 (9th Cir. 2000)

PEOPLE OF THE STATE OF CALIFORNIA, by the Sacramento Metropolitan Air Quality Management District, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; DEPARTMENT OF AIR FORCE; SACRAMENTO AIR LOGISTICS CENTER; MCCLELLAN AIR FORCE BASE, Defendants-Appellees.

No. 99-15388

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted April 26, 2000

Filed June 14, 2000

Kirk E. Trost, Hyde, Miller, Owen & Trost, Sacramento, California, for the plaintiff-appellant.

Kathryn E. Kovacs, United States Department of Justice, Washington, D.C., for the defendants-appellees.

William M. Dillon, Senior Deputy, County of Santa Barbara, Santa Barbara, California; David Schott, District Counsel, Monterey Bay Unified Air Pollution Control District, Monterey, California; Peter Mieras, District Prosecutor, South Coast Air Quality Management District, Diamond Bar, California; Terence G. Dutton, Senior Deputy, San Diego County Air Pollution Control District, San Diego, California; Robert N. Kwong, Bay Area Air Quality Management District, San Francisco, California; Michael W. Neville, Deputy Attorney General, State of California Air Resources Board; Andrew S. Bergman, Assistant Attorney General, Environmental Enforcement Section, Columbus, Ohio, for the amicus.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, Jr., District Judge, Presiding. D.C. No. CV-98-00437-FCD(JFM)

Before: Betty B. Fletcher, Arthur L. Alarcon, and Michael Daly Hawkins, Circuit Judges.

ALARCON, Circuit Judge:

The People of the State of California by the Sacramento Metropolitan Air Quality Management District (the "Sacramento Air Quality District") appeal from the final order of the district court granting the motion of the Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base (the "United States") for summary judgment, and denying their cross motion for summary judgment. The Sacramento Air Quality District brought this action in state court under the California Health and Safety Code to recover civil penalties from the United States for the unauthorized emission of nitrogen oxides into the air. The United States removed this action to the district court pursuant to 28 U.S.C.S 1442(a)(1) (the "federal removal statute").

The district court dismissed the action on the basis that Congress had not waived the United States' sovereign immunity from liability for civil penalties imposed by states to punish past violations of state and local air quality laws. We hold that this action was improperly removed. We vacate the judgment with directions that this action be remanded to the state court, because we conclude that the district court lacked subject matter jurisdiction to consider the merits of this dispute.

I

Congress enacted the Clean Air Act to protect and to enhance the quality of the nation's air resources and to promote the health, the welfare, and the productive capacity of its population. See 42 U.S.C. S 7401. Though the Clean Air Act establishes a federal framework for ensuring the nation's air quality, Congress vested the states with the primary responsibility of implementing its provisions. See 42 U.S.C. S 7407. The Clean Air Act specifically requires state and local governments to develop implementation plans and to adopt and enforce regulatory programs to attain and maintain the federal air quality standards established within their regions. See 42 U.S.C. S 7410; United States v. South Coast Air Quality Management Dist., 748 F. Supp. 732, 734 (C.D. Cal. 1990). It also preserves the authority of state and local governments to adopt and enforce their own air quality standards and limitations provided that the requirements are no less stringent than those prescribed by the federal government. See 42 U.S.C. S 7416; South Coast Air Quality Dist., 748 F. Supp. at 734. States that fail to satisfy the minimum federal air quality standards risk losing valuable federal funding. See 42 U.S.C. S 7509.

In California, air quality standards and limitations are governed by both the Clean Air Act and state and local air quality laws. The state divides responsibility for implementing and enforcing those standards among a state agency, the California Air Resources Board, and thirty-five local air quality districts. See Cal. Health & Safety Code SS 39002, 39003. The Sacramento Air Quality District is the local agency with primary responsibility for controlling air pollution from all stationary sources, for improving air quality, and for enforcing local rules, regulations, and applicable state and federal laws relating to the ambient air quality of Sacramento County, California. See Cal. Health & Safety Code SS 40001, 40960, 40961. To that end, the Sacramento Air Quality District has established a program which requires the issuance of permits prior to the construction or operation of any equipment that may emit air pollutants. See Cal. Health & Safety Code S 42300. To ensure compliance, the Sacramento Air Quality District is authorized to assess and recover civil penalties against any person who violates its rules, regulations, permit conditions, or orders. See Cal. Health & Safety Code SS 42402-42403. Each day of a violation is treated as a separate offense, and depending on the type of violation, each offense is punishable by a maximum penalty of either $1,000 or $10,000. See Cal. Health & Safety CodeSS 42402-42403.

The facts of this case are not in dispute. The United States operates the McClellan Air Force Base in Sacramento County and is subject to the conditions and requirements established by the Sacramento Air Quality District for the construction and operation of equipment that may emit air pollution. On January 9, 1996, the Sacramento Air Quality District issued the United States a permit to construct eight natural gas radiant heaters at the facility. The permit limited the volume of natural gas that the eight heaters could consume during the first quarter of each calendar year to 2.47 x 106 cubic feet. On January 30, 1996, the Sacramento Air Quality District issued the United States a second permit to operate the heaters at the facility. The second permit included the same limit on natural gas usage.

During the first quarter of the 1996 calendar year, the eight heaters exceeded the natural gas usage limit established by the permits and released an excess amount of nitrogen oxides into the air. Following readings of the gas meters at the facility on February 1, 1996 and on May 8, 1996, the United States immediately discontinued its use of the eight heaters and submitted to the Sacramento Air Quality District an application to increase the maximum volume of natural gas that the heaters could consume. On October 25, 1996, the Sacramento Air Quality District issued a notice of violation of the original permit conditions for the first quarter of the 1996 calendar year and, thereafter, issued a new permit which tripled the natural gas usage limit.

The Sacramento Air Quality District subsequently commenced the present action against the United States in state court pursuant to the California Health and Safety Code to recover $13,050 in civil penalties for the permit violations and to enjoin the facility from further violating the state's air quality requirements. The United States removed this action to the district court pursuant to the federal removal statute¹. See 28 U.S.C. S 1442(a)(1); Nebraska ex rel. Dep't of Social Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998) (holding that the federal removal statute allows a covered person to remove an action to district court based on the defense of sovereign immunity). The parties thereafter stipulated to the facts of the case, agreed to the dismissal of the Sacramento Air Quality District's claim for injunctive relief, and filed cross motions for summary judgment.² The only issue that remained before the district court was whether the United States had waived its sovereign immunity from liability for civil penalties imposed by a state to punish past violations of state and local air quality laws. Relying on the Supreme Court's decision in U.S. Dep't of Energy v. Ohio, 503 U.S. 607 (1992), the district court held that the Clean Air Act does not provide for such a waiver. It then entered a final judgment in favor of the United States and ordered the file closed.

II

We must resolve an important question that concerns the scope of our jurisdiction to hear this appeal pursuant to 28 U.S.C. S 1291. An appellate court is under a "special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it. . . . [or ] make no contention concerning it." Axess Int'l, Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 943 (9th Cir. 1999) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)) (internal quotations omitted). If the district court lacked jurisdiction, we have jurisdiction on appeal to correct the jurisdictional error, but not to entertain the merits of the dispute. See id.

The Sacramento Air Quality District did not challenge the removal of this action from state court; nor did it question the propriety of the district court's subject matter jurisdiction under the removal statute. See Florida v. Cohen , 887 F.2d 1451, 1454 (11th Cir. 1989) (holding that the federal removal statute provides an independent basis for federal jurisdiction irrespective of whether the district court has original jurisdiction). In reviewing the merits of this appeal, however, it came to our attention that certain language in the Clean Air Act directly conflicts with the right of the federal government to remove actions from state and local courts pursuant to the federal removal statute. Section 7604(e), which was added to the Clean Air Act by amendment in 1977, plainly...