FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSOCIATION OF AMERICAN
RAILROADS; BNSF RAILWAY
COMPANY; and UNION PACIFIC
RAILROAD COMPANY,
Plaintiffs-Appellees, No. 07-55804
v.
D.C. No.
CV-06-01416-JFW
SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT; and THE OPINION
GOVERNING BOARD OF SOUTH COAST
AIR QUALITY MANAGEMENT
DISTRICT,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
June 4, 2009—Pasadena, California
Filed September 15, 2010
Before: Pamela Ann Rymer, Susan P. Graber, and
Raymond C. Fisher,* Circuit Judges.
Opinion by Judge Graber
*Judge Raymond C. Fisher was drawn to replace Judge Ann Aldrich.
He has read the briefs, reviewed the record, and listened to the tape of oral
argument held on June 4, 2009.
14191
ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY 14193
COUNSEL
Daniel P. Selmi, Los Angeles, California; and Elena K. Sax-
onhouse and Gabriel M.B. Ross, Shute, Mihaly & Weinberger
LLP, San Francisco, California, for the defendants-appellants.
Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San
Francisco, California; and Robert M. Jenkins III, Mayer
Brown LLP, Washington, D.C., for the plaintiffs-appellees.
Suma Peesapati, Lozeau/Drury LLP, Alameda, California;
and David Pettit, Natural Resources Defense Council, Inc., for
the amici curiae.
OPINION
GRABER, Circuit Judge:
An array of federal, state, and local laws governs the opera-
tion of railroads, including laws that regulate the effect of the
14194 ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY
railroad industry on the environment. Here, a local govern-
mental agency enacted rules aimed at limiting the air pollu-
tion created by idling trains. Several entities within the
railroad industry filed suit. After a bench trial, the district
court held that federal law preempts the local rules. On de
novo review, Davis v. Yageo Corp., 481 F.3d 661, 673 (9th
Cir. 2007); J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1047
(9th Cir. 2007), we affirm.
The State of California divides its geographic territory into
35 air quality management districts. One of the air quality dis-
tricts located in Southern California is the South Coast Air
Quality Management District (“the District”). The District
performs two related functions that are relevant here. First,
California law grants some regulatory authority to the Dis-
trict. Cal. Health & Safety Code § 40001. Provided that the
District’s rules are within the scope of its regulatory authority
and that the District meets all procedural and other state-law
requirements, the District’s rules have the force and effect of
state law.
Second, California law tasks the District with drafting and
proposing an air quality management plan for its region. Id.
§ 40460. If approved by the state agency, the California Air
Resources Board (“CARB”), then the plan becomes part of
the statewide air quality management plan. Id. § 40460(d).
Additionally, CARB submits the statewide air quality man-
agement plan to the federal Environmental Protection Agency
(“EPA”) as part of California’s proposed overall “state imple-
mentation plan” under the federal Clean Air Act. Id.; see gen-
erally Union Electric Co. v. EPA, 427 U.S. 246 (1976)
(discussing in detail the mechanism of using state implemen-
tation plans to meet the requirements of the federal Clean Air
Act). “Once approved by EPA[,] [state implementation] plans
have the force and effect of federal law.” Safe Air for Every-
one v. EPA, 488 F.3d 1088, 1091 (9th Cir. 2007) (original
brackets and internal quotation marks omitted).
ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY 14195
In late 2005 and early 2006, the District enacted the three
rules that are the subject of this case. The District had identi-
fied emissions from idling trains as a source of air pollution.
The District enacted rules in an attempt to reduce that pollu-
tion. One of the rules limits the permissible amount of emis-
sions from idling trains (through a series of alternative options
for achieving that goal). The other two rules impose various
reporting requirements, backed by threat of penalties, on rail-
yard operators.
In response, the Association of American Railroads, BNSF
Railway Company, and Union Pacific Railroad Company
(collectively, “the Railroads”) filed this action against the
District and its governing board. The Railroads contend that
the Interstate Commerce Commission Termination Act of
1995 (“ICCTA”), Pub. L. No. 104-88, 109 Stat. 803, a federal
act that substantially deregulated the railroad industry, pre-
empts the District’s rules. See generally DHX, Inc. v. Surface
Transp. Bd., 501 F.3d 1080, 1082-83 (9th Cir. 2007) (discuss-
ing ICCTA). The district court agreed and entered a perma-
nent injunction against the District and its governing board,
precluding them “from implementing or enforcing any provi-
sion of [the challenged rules].”1 The District timely appeals.
[1] ICCTA contains an express preemption provision over
regulation of rail transportation:
The jurisdiction of the [Surface Transportation]
Board over—
(1) transportation by rail carriers, and the remedies
1
The district court also held, in the alternative, that the District’s rules
were not within the scope of the District’s state-law regulatory authority.
The Railroads reiterate that view on appeal. We need not, and do not,
decide that issue of state law. For purposes of this opinion, we assume
without deciding that the rules fall within the District’s regulatory author-
ity.
14196 ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY
provided in this part with respect to rates, classifica-
tions, rules (including car service, interchange, and
other operating rules), practices, routes, services, and
facilities of such carriers; and
(2) the construction, acquisition, operation, aban-
donment, or discontinuance of spur, industrial, team,
switching, or side tracks, or facilities, even if the
tracks are located, or intended to be located, entirely
in one State,
is exclusive. Except as otherwise provided in this
part, the remedies provided under this part with
respect to regulation of rail transportation are
exclusive and preempt the remedies provided under
Federal or State law.
49 U.S.C. § 10501(b) (emphases added); see also id.
§ 10102(9) (defining “transportation,” in part, as “a locomo-
tive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard,
property, facility, instrumentality, or equipment of any kind
related to the movement of passengers or property, or both, by
rail, regardless of ownership or an agreement concerning use”
(emphases added)).
We held in City of Auburn v. United States Government,
154 F.3d 1025, 1029-31 (9th Cir. 1998), that Congress
intended to preempt a wide range of state and local regulation
of rail activity. We find further guidance on the scope of
ICCTA preemption from the decisions of the Surface Trans-
portation Board (“STB”), to which we owe Chevron defer-
ence, DHX, 501 F.3d at 1086, and from decisions of our sister
circuits.
If an apparent conflict exists between ICCTA and a federal
law, then the courts must strive to harmonize the two laws,
giving effect to both laws if possible. See In re Bos. & Me.
Corp. & Town of Ayer, Mass., No. 33971, 2001 WL 458685,
ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY 14197
at *6 n.28 (S.T.B. Apr. 30, 2001) (citing Matsushita Electric
Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996); Blanchette
v. Conn. Gen. Ins. Corps., 419 U.S. 102, 133-34 (1974); Uno-
cal Corp. v. Kaabipour, 177 F.3d 755, 769 (9th Cir. 1999)).
If an apparent conflict exists between ICCTA and a state or
local law, however, different rules apply.
[2] Generally speaking, ICCTA does not preempt state or
local laws if they are laws of general applicability that do not
unreasonably interfere with interstate commerce. Bos. & Me.
Corp., 2001 WL 458685, at *4-6; see also In re Cities of
Auburn & Kent, Wash., No. 33200, 1997 WL 362017, at *3-6
(S.T.B. July 1, 1997) (discussing ICCTA preemption of state
and local laws). For instance, the STB has recognized that
ICCTA likely would not preempt local laws that prohibit the
dumping of harmful substances or wastes, because such a
generally applicable regulation would not constitute an unrea-
sonable burden on interstate commerce. Auburn & Kent, 1997
WL 362017, at *6; see also Fla. E. Coast Ry. Co. v. City of
W. Palm Beach, 266 F.3d 1324, 1337 (11th Cir. 2001) (“The
statutory changes brought about by the ICCTA reflect the
focus of legislative attention on removing direct economic
regulation by the States, as opposed to the incidental effects
that inhere in the exercise of traditionally local police powers
such as zoning.”). As stated by our sister circuits, ICCTA
“preempts all ‘state laws that may reasonably be said to have
the effect of managing or governing rail transportation, while
permitting the continued application of laws having a more
remote or incidental effect on rail transportation.’ What mat-
ters is the degree to which the challenged regulation burdens
rail transportation . . . .”2 N.Y. Susquehanna & W. Ry. Corp.
v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007) (quoting Fla. E.
Coast Ry., 266 F.3d at 1331); see also Franks Inv. Co. v.
2
For that reason, the District greatly overstates its case when it claims
that a finding of preemption here would mean that all state and local regu-
lation that happened to affect railroads, such as criminal laws and con-
sumer protection laws, would be preempted.
14198 ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY
Union Pac. R.R. Co., 593 F.3d 404, 410 (5th Cir. 2010) (en
banc) (agreeing with that “persuasive” interpretation of the
scope of ICCTA preemption). Both we and our sister circuits
have rejected the argument—advanced by the District here—
that ICCTA preempts only economic regulation. N.Y. Susque-
hanna, 500 F.3d at 252; Auburn, 154 F.3d at 1031.
[3] The STB has explained that this system preserves a
role for state and local agencies in the environmental regula-
tion of railroads in at least two ways. First, to the extent that
state and local agencies promulgate EPA-approved statewide
plans under federal environmental laws (such as “statewide
implementation plans” under the Clean Air Act), ICCTA gen-
erally does not preempt those regulations because it is possi-
ble to harmonize the ICCTA with those federally recognized
regulations. See, e.g., Bos. & Me. Corp., 2001 WL 458685, at
*5 (“[N]othing in section 10501(b) is intended to interfere
with the role of state and local agencies in implementing Fed-
eral environmental statutes, such as the Clean Air Act [and
the federal clean water statutes].”). Second, to the extent that
state and local agencies enforce their generally applicable reg-
ulations in a way that does not unreasonably burden railroad
activity, ICCTA does not preempt such regulation, despite the
fact that the regulation does not have the force and effect of
federal law.
[4] Here, the District’s rules do not have the force and
effect of federal law. The District alleges that it will submit
the rules to the state agency, CARB, for its approval and that,
if CARB approves, CARB will submit the rules to the federal
EPA as part of California’s state implementation plan. Once
approved by EPA, state implementation plans have “the force
and effect of federal law.” Safe Air for Everyone, 488 F.3d at
1091 (internal quotation marks omitted). The corollary to that
rule is that, until approved by the EPA, state implementation
plans do not have the force and effect of federal law. For that
reason, it is irrelevant that the Clean Air Act reserves certain
regulatory authority to the states and localities. Because the
ASS’N AMERICAN RAILROADS v. S. COAST AIR QUALITY 14199
District’s rules have not become a part of California’s EPA-
approved state implementation plan, they do not have the
force and effect of federal law, even if they might in the
future. Accordingly, there is no authority for the courts to har-
monize the District’s rules with ICCTA.
[5] Because the District’s rules have the force and effect of
state law, ICCTA preempts those rules unless they are rules
of general applicability that do not unreasonably burden rail-
road activity. The District’s rules plainly cannot meet that
test. The rules apply exclusively and directly to railroad activ-
ity, requiring the railroads to reduce emissions and to provide,
under threat of penalties, specific reports on its emissions and
inventory. Because ICCTA “preempts all state laws that may
reasonably be said to have the effect of managing or govern-
ing rail transportation,” N.Y. Susquehanna, 500 F.3d at 252
(internal quotation marks omitted), ICCTA preempts the Dis-
trict’s rules here.
AFFIRMED.