California Dump Truck Owners Ass'n v. Nichols

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 13-15175
CALIFORNIA DUMP TRUCK OWNERS
ASSOCIATION,
D.C. No.
Plaintiff-Appellant,
2:11-cv-00384-
MCE-GGH
v.
OPINION
MARY D. NICHOLS, Chairperson of
the California Air Resources Board;
JAMES GOLDSTENE, Executive
Officer of the California Air
Resources Board,
Defendants-Appellees,

NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor-Defendant–Appellee.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Chief District Judge, Presiding
2 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

Submitted February 9, 2015 ∗
San Francisco, California

Filed March 3, 2015

Before: John T. Noonan, Senior Circuit Judge, Barry G.
Silverman, Circuit Judge, and Paul C. Huck, Senior District
Judge. **

Opinion by Judge Huck

SUMMARY ***

Environmental Law

The panel affirmed the dismissal for lack of subject
matter jurisdiction of a federal preemption challenge to a
California environmental regulation addressing diesel
trucks.

The panel affirmed the district court’s holding that the
Environmental Protection Agency’s approval of the

∗
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Paul C. Huck, United States District Judge for the
Southern District of Florida, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 3

regulation as part of California’s state implementation plan
divested the district court of jurisdiction under § 307(b)(1)
of the Clean Air Act. The panel concluded that the suit, as
a practical matter, challenged the state implementation plan
itself. Because the court of appeals has exclusive
jurisdiction over such challenges pursuant to § 307(b)(1),
the district court lacked jurisdiction.

COUNSEL

Patrick J. Whalen, Law Offices of Brooks Ellison,
Sacramento, California, for Plaintiff-Appellant.

Nicholas Stern, Deputy Attorney General for the State of
California, Sacramento, California, for Defendants-
Appellees.

Melissa Lin Perrella, David Pettit, and Morgan Wyenn,
Natural Resources Defense Council, Santa Monica,
California, for Intervenor-Defendant–Appellee.

OPINION

HUCK, Senior District Judge

The California Dump Truck Owners Association
(Truck Association) appeals the dismissal of its federal
preemption challenge to a California environmental
regulation. 1 At issue is whether the Environmental

1
The Truck Association is a trade association representing construction
trucking companies operating in California.
4 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

Protection Agency’s (EPA) approval of the regulation as
part of California’s state implementation plan (SIP)
divested the district court of subject matter jurisdiction
under § 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C.
§ 7607(b)(1). That section vests federal circuit courts of
appeals with exclusive jurisdiction over petitions
challenging the EPA’s approval of a SIP. The Truck
Association’s suit, as a practical matter, challenges the SIP
itself, and this Court has exclusive jurisdiction over such
challenges pursuant to § 307(b)(1). Accordingly, we affirm
the district court’s dismissal for lack of subject matter
jurisdiction. 2

I. Background

The CAA creates a partnership between the federal
government and the states to combat air pollution. Natural
Res. Def. Council, Inc. v. U.S. Dep’t of Transp., 770 F.3d
1260, 1264 (9th Cir. 2014). Under the CAA, the EPA must
prescribe national ambient air quality standards (NAAQS)
for certain air pollutants, and each state is responsible for
implementing those standards within its borders. 42 U.S.C.
§§ 7409–10. Specifically, each state must adopt, and
submit for the EPA’s approval, a SIP that provides for the
“implementation, maintenance, and enforcement” of the
NAAQS. Id. § 7410(a)(1). While a state has considerable
discretion in formulating its SIP, the SIP must include
“enforceable emission limitations” and control measures
and “a program to provide for the enforcement” of such

2
The district court also dismissed the Truck Association’s complaint
for the alternative reason that the EPA is a necessary and indispensable
party under Federal Rule of Civil Procedure 19. However, because we
have determined that the district court properly dismissed the complaint
for lack of subject matter jurisdiction, we need not, and, therefore, do
not reach this alternative basis for dismissal.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 5

measures. Id. § 7410(a)(2)(A), (C). It must further provide
“necessary assurances” that the state has “adequate
personnel, funding, and authority” to carry out the SIP, and
is not prohibited from doing so by “any provision of
Federal or State law.” Id. § 7410(a)(2)(E). Once approved
by the EPA, a SIP becomes federal law and must be carried
out by the state. Safe Air for Everyone v. EPA, 488 F.3d
1088, 1091 (9th Cir. 2007); Bayview Hunters Point Cmty.
Advocates v. Metro. Transp. Comm’n, 366 F.3d 692, 695
(9th Cir. 2004). A state’s SIP evolves as the state proposes,
and the EPA approves, revisions to account for new
NAAQS and emissions reduction technologies. 42 U.S.C.
§ 7410(a)(2)(H). Approved SIPs may be enforced “by
either the State, the EPA, or via citizen suits.” Bayview,
366 F.3d at 695.

In 2008, the California Air Resources Board (CARB)
adopted the Truck and Bus Regulation (Regulation), Cal.
Code Regs. tit. 13, § 2025, for incorporation into
California’s SIP. 3 The Regulation helps California meet
the EPA’s NAAQS for fine particulate matter (PM) and
ozone. Broadly speaking, it requires heavy-duty diesel
trucks, whose emissions contribute significantly to PM and
ozone pollution, to be upgraded with pollution filters and
lower-emission engines. The Regulation took effect on
January 1, 2012.

In April 2011, the Truck Association filed an amended
complaint in district court to enjoin enforcement of the
Regulation. It claimed that, under the Supremacy Clause of

3
The full title of the Truck and Bus Regulation is a “Regulation to
Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and
Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled
Vehicles.” Cal. Code Regs. tit. 13, § 2025.
6 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

the United States Constitution, the Regulation was
preempted by the Federal Aviation Administration
Authorization Act (FAAAA), which prohibits states from
enacting regulations “related to a price, route, or service of
any motor carrier . . . with respect to the transportation of
property.” 49 U.S.C. § 14501(c)(1). The Truck
Association alleged that its motor carrier members would
have to increase prices and alter their routes and services to
offset the costs of complying with the Regulation. The
Truck Association sought a declaration that the FAAAA
preempted the Regulation and an injunction against its
enforcement by CARB. The Natural Resources Defense
Council, Inc. (NRDC) intervened on CARB’s behalf.

In November 2011, the Truck Association filed a
motion for summary judgment as well as a motion for
preliminary injunction to enjoin enforcement of the
Regulation until dispositive motions could be decided. The
following month, the NRDC filed a cross-motion for
summary judgment. The district court denied the Truck
Association’s motion for preliminary injunction and took
the motions for summary judgment under submission.

Throughout this time, the Regulation had progressed
through the EPA’s SIP approval process. In May 2011, a
month after the Truck Association filed its amended
complaint, CARB submitted the Regulation to the EPA. 4
In July 2011, the EPA issued a notice of proposed
rulemaking announcing its intention to approve the
Regulation. Proposed Rule, Approval and Promulgation of
Implementation Plans, 76 Fed. Reg. 40652 (proposed July
11, 2011) (to be codified at 40 C.F.R. pt. 52). In the notice,

4
The Regulation as submitted to the EPA included certain amendments
that were adopted by CARB in 2011.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 7

the EPA concluded that the Regulation complied with the
CAA. In particular, the EPA noted that CARB had
authority under California law to implement the
Regulation, and that the EPA knew of “no obstacle under
Federal or State law” to its implementation. Id. at 40658.
The EPA further found that CARB had adequate personnel
and funding to enforce the Regulation and that CARB’s
proposed enforcement mechanisms were likely to be
effective. Id. at 40659. The EPA provided thirty days for
the public to comment on its proposed approval of the
Regulation. Neither the Truck Association nor any other
individual or group commented on the proposed rule. Final
Rule, Approval and Promulgation of Implementations
Plans, 77 Fed. Reg. 20308, 20312 (Apr. 4, 2012) (to be
codified at 40 C.F.R. pt. 52). On April 4, 2012, the EPA
took final action approving the Regulation as part of
California’s SIP. In its notice of this action, the EPA
reaffirmed its prior conclusion that the Regulation
complied with the substantive and procedural requirements
of the CAA. Id. at 20311, 20313. The final rule took effect
on May 4, 2012, and the Regulation was incorporated into
California’s SIP in the Code of Federal Regulations. 40
C.F.R. § 52.220(410) (incorporating by reference the
Regulation, Cal. Code Regs. tit. 13, § 2025).

On May 24, 2012, while the parties’ summary judgment
motions remained pending, the NRDC filed a notice of
supplemental authority informing the district court of the
EPA’s approval of the Regulation as part of California’s
SIP. At the court’s request, the parties submitted briefing
on whether the EPA’s action affected the posture of the
case. On December 19, 2012, the court dismissed the suit,
finding that it no longer had subject matter jurisdiction
under § 307(b)(1) of the CAA. It further found that, even if
it retained jurisdiction, dismissal was proper under Federal
8 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

Rule of Civil Procedure 19 because the EPA was a
necessary and indispensable party. The Truck Association
appealed both grounds for the district court’s dismissal.

Shortly after filing this appeal, the Truck Association
separately filed a petition in this Court under § 307(b)(1)
and Rule 15(a) of the Federal Rules of Appellate
Procedure, seeking review of the EPA’s approval of the
Regulation. Petition for Review, Cal. Constr. Trucking
Ass’n v. EPA, No. 13-70562 (9th Cir. 2013). We dismissed
the petition as untimely because it was not filed within
sixty days of the EPA’s notice of final rule, as required by
§ 307(b)(1). Order, Cal. Constr. Trucking Ass’n, No. 13-
70562. The Truck Association also filed a petition with the
EPA requesting reconsideration of its approval of the
Regulation.

II. Analysis

We review a district court’s dismissal of a complaint
for lack of subject matter jurisdiction de novo. Carolina
Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082, 1086
(9th Cir. 2014).

Section 307(b)(1) of the CAA states:

A petition for review of the [EPA]
Administrator’s action in approving or
promulgating any implementation plan . . .
or any other final action of the
Administrator under this chapter . . . which
is locally or regionally applicable may be
filed only in the United States Court of
Appeals for the appropriate circuit.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 9

42 U.S.C. § 7607(b)(1) (emphasis added). As a result,
“invalidation of an EPA-approved SIP may only occur in
the federal appellate courts on direct appeal from the
Administrator’s decision.” United States v. Ford Motor
Co., 814 F.2d 1099, 1103 (6th Cir. 1987); see also Sierra
Club v. Ind.-Ky. Elec. Corp., 716 F.2d 1145, 1152 (7th Cir.
1983) (“Once a plan is adopted by the state and it
withstands any subsequent procedural challenge, then
§ 7607(b)(1) provides that invalidation may occur only in
the federal appellate courts.”).

The Truck Association, however, argues that it is not
challenging the SIP, or the EPA’s approval thereof. It
claims that its suit, which it filed before the EPA’s final
action approving the Regulation as part of California’s SIP,
challenges only the state Regulation, which is distinct from
the federal SIP. The Truck Association contends that
invalidating the Regulation would render it unenforceable
by CARB, but “would not prohibit enforcement of the SIP”
by the EPA and private citizens. Truck Association
members would still purportedly benefit from the
Regulation’s invalidation because of the “enormous
difference in the enforcement mechanisms between the
state regulation and the federalized SIP.” Specifically, the
Truck Association points out that under the CAA, citizen
suits may not be commenced without first providing the
alleged violator with sixty days’ notice. 5 42 U.S.C.

5
The Truck Association does not discuss whether a similar grace
period exists before the EPA can take enforcement action. However, it
appears that the EPA must wait at least thirty days before taking action
to enforce a SIP. See Luminant Generation Co., LLC v. EPA, 757 F.3d
439, 442 (5th Cir. 2014) (“After giving notice and waiting thirty days,
the EPA may ‘issue an order,’ ‘issue an administrative penalty’ after a
formal administrative hearing, or ‘bring a civil action.’” (quoting 42
U.S.C. § 7413 (a)(1))).
10 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

§ 7604(b)(1). By contrast, no such limitation is placed on
CARB’s enforcement of the Regulation. Under
California’s Health and Safety Code, violators are liable for
civil penalties of up to $1,000 per day as well as criminal
sanctions, with each day of violation constituting a separate
offense. Cal. Health & Safety Code §§ 39674, 42400.
Were the Regulation nullified, violators would have sixty
days to take corrective action, saving them from potentially
$60,000 in penalties and sixty criminal offenses. And,
“[a]s a practical matter,” the Truck Association contends,
most of its members would not have to comply with the
SIP for “months or years” until their noncompliance was
discovered by someone willing to pursue the “relatively
cumbersome” process of bringing a citizen suit. The Truck
Association concludes that, because it is challenging only
the Regulation and not the SIP, § 307(b)(1) does not
apply. 6 For the reasons discussed herein, we disagree.

6
In its opening brief, the Truck Association argues at length that an
approved SIP does not have the “force and effect of federal law,” and
instead may simply be enforced by the EPA in federal court. This
argument, for which the Truck Association cites no case law, is based
on the fact that the CAA provision providing for federal enforcement
does not contain the language “force and effect of federal law.” 42
U.S.C. § 7413. This is insufficient to disturb our precedent, which has
consistently recognized that an approved SIP is federal law. See, e.g.,
Safe Air, 488 F.3d at 1091; Natural Res. Def. Council, Inc. v. S. Coast
Air Quality Mgmt. Dist., 651 F.3d 1066, 1069 (9th Cir. 2011); El
Comité Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062,
1066 (9th Cir. 2008). We are joined in this view by other circuits. See,
e.g., GenOn REMA, LLC v. EPA, 722 F.3d 513, 516 (3rd Cir. 2013)
(“If the EPA approves the SIPs, they become enforceable as federal
law.”); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1159 (10th Cir.
2012) (“Approved SIPs are enforceable as federal law . . . .”); Her
Majesty the Queen in Right of the Province of Ont. v. City of Detroit,
874 F.2d 332, 335 (6th Cir. 1989) (“If a state implementation plan
(‘SIP’) is approved by the EPA, its requirements become federal law
and are fully enforceable in federal court.”). Furthermore, the Truck
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 11

A. Scope of § 307(b)(1)

The Truck Association relies heavily on the fact that its
complaint, on its face, does not challenge an EPA action or
California’s SIP. However, jurisdiction under § 307(b)(1)
is not established solely by the allegations on the face of a
complaint; instead, § 307(b)(1) “channels review of final
EPA action exclusively to the courts of appeals, regardless
of how the grounds for review are framed.” Virginia v.
United States, 74 F.3d 517, 523 (4th Cir. 1996) (emphasis
added). Thus, § 307(b)(1) has been applied to claims that
effectively, if not facially, challenged an EPA final action.

In Virginia v. United States, for example, the Fourth
Circuit held that § 307(b)(1) applied to Virginia’s claim
that provisions of the CAA were “unconstitutional on their
face.” Virginia, 74 F.3d at 522. After the EPA took final
action finding deficiencies in Virginia’s pollution
programs, Virginia filed suit in district court alleging that
the CAA sanctions that would be triggered by the EPA’s
actions were unconstitutional. Virginia sought an
injunction preventing the EPA from enforcing those
sanctions. The district court dismissed Virginia’s suit
under § 307(b)(1), and the Fourth Circuit affirmed. The
Fourth Circuit explained that “the practical objective of the
complaint [was] to nullify final actions of EPA,” and held
that Virginia could not “circumvent direct review in the

Association’s ultimate point appears to be that even after EPA
approval, there remains “a state regulation on the books that is subject
to preemption,” a point that Appellees do not contest, and that is not
relevant to the question of jurisdiction under § 307(b)(1).
12 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

circuit court” by “framing its complaint as a constitutional
challenge to the CAA.” Id. at 522–23 (emphasis added). 7

The Eighth Circuit reached a similar conclusion in
Missouri v. United States, 109 F.3d 440 (8th Cir. 1997).
There, Missouri challenged the constitutionality of the
CAA’s sanctions scheme after the EPA found Missouri to
be noncompliant with the CAA. The Eighth Circuit held
that § 307(b)(1) applied to Missouri’s suit, stating:

7
In its Reply brief, the Truck Association argues that Virginia’s
holding was subsequently limited in North Carolina ex rel. Cooper v.
Tennessee Valley Authority, 549 F. Supp. 2d 725 (W.D.N.C. 2008).
Apart from the fact that a district court cannot “limit” the holding of a
court of appeals decision, the Truck Association’s reliance on this case,
which ultimately favors Appellees, is misguided. North Carolina had
filed a public nuisance suit against the Tennessee Valley Authority
(TVA) based on emissions from TVA’s power plants located in
Tennessee, Alabama, and Kentucky. Id. at 727. North Carolina had
separately filed a petition with the EPA under the CAA seeking
emissions reductions from TVA’s power plants in thirteen states. The
district court found that the two actions could proceed simultaneously
because North Carolina’s public nuisance suit was brought on different
grounds than its EPA petition. Id. at 734. The court distinguished
Virginia, finding no indication that North Carolina’s “practical
objective” was to “‘nullify’ the EPA’s final action.” Id. Following a
bench trial, TVA was found liable and appealed. As noted in CARB’s
citation of supplemental authorities, the Fourth Circuit reversed the
district court’s judgment. Among other reasons, the court explained
that preemption considerations disfavored litigation such as North
Carolina’s suit, as it amounted to “‘nothing more than a collateral
attack’” on the system created by the CAA and “risk[ed] results that
lack both clarity and legitimacy.” North Carolina ex rel. Cooper v.
Tenn. Valley Auth., 615 F.3d 291, 301 (4th Cir. 2010) (quoting
Palumbo v. Waste Techs. Indus., 989 F.2d 156, 159 (4th Cir. 1993)).
Thus, not only does North Carolina not cabin Virginia, it in fact favors
Appellees by discouraging litigation that seeks to “scuttle the extensive
system of anti-pollution mandates that promote clean air in this
country.” Id. at 298.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 13

While it is true that Missouri’s complaint
questions the constitutionality of the overall
sanctions scheme of the CAA, this challenge
is not separate and apart from EPA
action. . . . Those sanctions flow directly
from EPA action, originating in EPA’s
declaring the St. Louis area an “ozone
nonattainment area.”

Id. at 442.

In New England Legal Foundation v. Costle, 666 F.2d
30 (2d Cir. 1981), the Second Circuit found § 307(b)(1) to
apply to a common law nuisance suit. The plaintiff had
sued a lighting company for burning high-sulfur oil,
conduct the EPA had approved as a variance to New
York’s SIP. Id. at 31–32 & n.1. The Second Circuit found
the nuisance claim was “in effect, an attack upon the
validity of the EPA-approved variance,” and held that “[a]ll
claims against the validity of performance standards
approved by final decision of the Administrator must be
addressed to the courts of appeals on direct appeal.” Id. at
33 (internal quotation marks and citation omitted).

Finally, in Benning v. Browner, No. Civ.A. 97-CV-
7058, 1998 WL 717436 (E.D. Pa. Sept. 24, 1998), the court
applied the reasoning of Virginia and Missouri to a suit
alleging that a regulation incorporated into Pennsylvania’s
SIP violated the Equal Protection Clause. The court found
the plaintiffs were “essentially challenging the
appropriateness of the EPA Administrator’s action in
approving a regulation they believe to be unconstitutional.”
Id. at *3. It concluded that the plaintiffs’ “practical
objective [was] to nullify the EPA’s final action,” and
dismissed the suit under § 307(b)(1).
14 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

These cases demonstrate that a claim need not be
framed as a challenge to the EPA for § 307(b)(1) to apply.
Instead, § 307(b)(1)’s scope extends to claims that, as a
practical matter, challenge an EPA final action, including
its approval of a SIP. 8 As explained below, we find that the
Truck Association’s suit, as a practical matter, challenges
the EPA’s approval of a provision of California’s SIP.

B. The Truck Association’s Suit

The Truck Association seeks to enjoin CARB from
enforcing the Regulation, which the Association alleges is
preempted by federal law. However, the EPA’s approval
of the Regulation made it part of California’s SIP, and the
SIP’s effectiveness depends largely on its enforcement by
the state. Enjoining enforcement of the Regulation by
CARB would effectively nullify that provision of

8
To some extent, this Court’s decision in Natural Resources Defense
Council, Inc. v. South Coast Air Quality Management District, 651
F.3d 1066 (9th Cir. 2011), also supports the proposition that
§ 307(b)(1) looks beyond the face of a complaint. There, the EPA had
approved the SIP for the South Coast Air Basin. The SIP included a
program that allowed new sources of pollution to obtain emissions
offset credits from the South Coast Air Quality Management District
(SCAQMD), which implemented the SIP. Id. at 1069. In approving
the SIP, the EPA had found that SCAQMD’s credits complied with the
CAA. Id. at 1070–71. Several years later, the NRDC filed suit in
district court alleging that the credits did not comply with the CAA.
The district court dismissed the claim under § 307(b)(1). Id. at 1069.
On appeal, the NRDC argued that it was “not challenging the EPA’s
approval of the SIP, but rather SCAQMD’s implementation of the
SIP.” Id. at 1071. We rejected that argument, explaining that “because
the EPA issued rules that not only approved the SIP but also indicated
that the credits . . . comply with [the CAA], the NRDC is effectively
seeking review of the EPA’s decision.” Id. Thus, SCAQMD also
favors applying § 307(b)(1) based on the practical objective of a claim.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 15

California’s SIP. Furthermore, in alleging that the
Regulation is preempted, the Truck Association is also
effectively challenging the EPA’s determination that
federal law does not prohibit the Regulation. Thus, while
the Truck Association had no “secret intent” of challenging
the EPA when it filed suit, and it does not now seek to
prohibit the EPA’s enforcement of the SIP, the practical,
and therefore legal, effect of the Truck Association’s suit is
to challenge both the EPA and the SIP.

1. Challenge to CARB’s Enforcement of the SIP

While the Truck Association asserts that “[t]he validity
of the SIP is not at issue,” its suit, if successful, would
effectively eviscerate the SIP by precluding its enforcement
by CARB. As we have previously observed, “[t]he [CAA]
places much of its enforcement burden on the states, which
are required to submit SIPs that show how states will attain
the standards for major air pollutants.” El Comité Para El
Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062,
1066 (9th Cir. 2008) (emphasis added); see also Safe Air,
488 F.3d at 1092 (“[T]he CAA establishes a system heavily
dependent upon state participation.”); Ford, 814 F.2d at
1102 (“[T]he Clean Air Act contemplates very significant
participation in air pollution control by state air pollution
control agencies . . . .”). Thus, a SIP must contain
“enforceable” emissions limitations and assurances that the
state has sufficient authority and resources to carry out the
SIP. 42 U.S.C. § 7410(a)(2)(A), (E).

Indeed, the EPA approved the Regulation in part
because it concluded that CARB could effectively enforce
it. The EPA stated:
16 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

CARB intends to conduct enforcement of
the . . . Regulation . . . similarly to
enforcement of CARB’s commercial vehicle
and school bus idling regulations. CARB’s
enforcement staff intends to use the
inspection and audit methods that they have
developed during the many years of
experience enforcing the Heavy-Duty
Vehicle Inspection Program (adopted into
law in 1988) and the Periodic Smoke
Inspection Program (adopted into law in
1990).

CARB indicates that enforcement
activities will include inspections at border
crossings, California Highway Patrol (CHP)
weigh stations, fleet facilities, and randomly
selected roadside locations and audits of
records. . . . These activities could result in
corrective actions and substantial civil
penalties for non-compliance with the
regulations. . . .

We recognize the general effectiveness
of CARB’s motor vehicle enforcement
program and expect CARB’s approach to
enforcement of the . . . [R]egulation[], as
described above, to be equally effective
....

76 Fed. Reg. 40659 (emphasis added). Clearly, the SIP’s
effectiveness in attaining the EPA’s NAAQS is directly tied
to its enforceability by CARB, and would be vitiated if
such enforcement were enjoined.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 17

Furthermore, the Truck Association’s assertion that it is
not challenging the SIP is belied by its acknowledgment
that the invalidation of the state Regulation that it desires
would make the SIP’s enforcement more difficult, and that
such circumstances would be beneficial to its members.
While touting the continued viability of the SIP via EPA
actions and citizen suits, the Truck Association readily
admits that such enforcement will be largely ineffective,
with SIP violations likely to go undetected for months if
not years. Thus, if successful, the Truck Association’s suit
would severely undermine the SIP’s ability to achieve
federal air quality standards. Because the Truck
Association’s practical objective is to dismantle the SIP’s
primary enforcement apparatus, its suit is subject to
§ 307(b)(1) and must be brought in this Court. 9
The Truck Association argues that there is some
precedent for a non-appellate court repealing a state

9
In addition to having the practical effect of nullifying the SIP, the
Truck Association’s suit arguably seeks to literally repeal a portion of
the SIP. California’s SIP, codified at 40 C.F.R. § 52.220, does not set
forth the requirements of the Regulation; instead, it incorporates the
Regulation “by reference.” Id. § 52.220(410). Thus, if the Regulation
were repealed, there would arguably be nothing for the SIP to
incorporate. Indeed, it could be persuasively argued that the repeal of a
state regulation necessarily repeals part of the corresponding SIP, as a
SIP is composed of state regulations. As explained by the EPA in its
notice of final rule:

[I]n reviewing SIP submissions, EPA’s role is to
approve State choices, provided that they meet the
criteria of the Clean Air Act. Accordingly, this
proposed action merely approves State law as
meeting Federal requirements and does not impose
additional requirements beyond those imposed by
State law.

77 Fed. Reg. at 20313.
18 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

regulation that is incorporated into a SIP. The Truck
Association points to Sierra Club v. Indiana-Kentucky
Electric Corp., 716 F.2d 1145 (7th Cir. 1983), where the
Seventh Circuit considered the enforceability of a SIP
provision whose underlying state regulation had been
invalidated in state court on state law procedural grounds.
Id. at 1146. An Indiana court had found the SIP provision
invalid because the “state officer who presided over the
hearing [on the regulation] had failed to submit written
findings to the Indiana Environmental Management
Board,” as required by Indiana law. Id. at 1147. The
Seventh Circuit held that, in light of the state court’s ruling,
the SIP provision was not enforceable, reasoning:

Because administrative actions taken
without substantial compliance with
applicable procedures are invalid, it is as if
Indiana never submitted [the state
regulation]. Since a valid [regulation] was
never submitted, EPA’s adoption of [the
regulation] cannot be given effect since EPA
approved a provision which was invalid
when submitted to the agency.

Id. at 1148.

Even if we were to agree with the Seventh Circuit that a
SIP provision may be invalidated in state court on state
procedural grounds, this would not help the Truck
Association, whose suit does not raise a state law
procedural challenge. And, as explained by the Seventh
Circuit, “[o]nce a plan is adopted by the state and it
withstands any subsequent procedural challenge, then
§ 7607(b)(1) [CAA § 307(b)(1)] provides that invalidation
may occur only in the federal appellate courts.” Id. at
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 19

1152. Thus, if anything, Sierra Club supports the
application of § 307(b)(1) to the Truck Association’s suit.

United States v. Ford Motor Co., 814 F.2d 1099 (6th
Cir. 1987), similarly acknowledged the very limited
circumstances in which a SIP may be invalidated by a state
court. There, the EPA had sued Ford in district court for
violations of Michigan’s SIP, and Ford subsequently filed
suit in Michigan state court to enjoin state environmental
agencies from enforcing the SIP. Ford and the state
agencies negotiated a consent judgment purporting to
vacate the SIP, and Ford sought to use the consent
judgment to defeat the EPA’s enforcement action. Id. at
1101. The Sixth Circuit held that the consent judgment did
not preclude EPA’s enforcement of the SIP because
“revisions of State Implementation Plans are ineffective
until approved by EPA,” and “invalidation of an EPA-
approved SIP may only occur in the federal appellate
courts” under § 307(b)(1). Id. at 1102–03. The Sixth
Circuit distinguished Sierra Club, noting that Ford’s
challenge to the SIP was not based on procedural grounds.
Id. at 1103.

The Sixth Circuit did not address whether the consent
judgment could preclude enforcement of the SIP by state
agencies. If it could, Ford would arguably support the
Truck Association’s assertion that a non-appellate court
may render a SIP unenforceable by the state. However, the
court in Ford was not confronted with this question. To the
extent that any inferences can be drawn from the opinion,
they would favor Appellees, as the Sixth Circuit stated,
“invalidation of a SIP on technical grounds by a state court
. . . . cannot be given effect.” Id. at 1103 (emphasis added).
Presumably, this admonition applied to both the EPA and
the state agencies. Thus, Sierra Club and Ford do not
20 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

detract from the analysis supporting this Court’s exclusive
jurisdiction over the Truck Association’s claim. 10

2. Challenge to the EPA’s Legal
Determination

It is also clear that jurisdiction for the Truck
Association’s claim exists exclusively under § 307(b)(1)
because the Truck Association’s preemption claim
effectively challenges the EPA’s legal determination that
federal law does not prohibit the Regulation. When the
EPA proposed approving the Regulation, it explicitly stated
that it knew of “no obstacle under Federal or State law in
CARB’s ability to implement” the Regulation. 76 Fed.
Reg. at 40658. The EPA reiterated this conclusion in its
final approval, finding that the state had provided adequate
assurances that it was not prohibited from carrying out the
Regulation by “any provision of Federal or State law.”
77 Fed. Reg. 20311, 20313. In alleging that the Regulation
violates the Supremacy Clause because it is preempted by

10
The parties cite New Mexico Environmental Improvement Division v.
Thomas, 789 F.2d 825 (10th Cir. 1986), for the proposition that
“[w]hen the approved SIP contains an element that is invalidated by
virtue of state law, adoption by the EPA is also invalidated.” Id. at 833.
This decision, however, is of limited help to either side. In New
Mexico, a state regulation approved into New Mexico’s SIP was
subsequently invalidated by New Mexico’s Supreme Court for
violating a state law prohibiting counties from requiring vehicle
registrations. Id. at 828 & n.1. The issue before the court was whether
the EPA reasonably concluded that New Mexico had failed to submit a
valid SIP. In its deferential agency review, the Tenth Circuit found that
the EPA acted reasonably, noting that Sierra Club lent support for the
EPA’s theory that when a state submits a SIP that is invalid under state
law, it “is as if the state had not submitted a SIP” at all.” Id. at 833.
The court had no occasion to consider whether New Mexico’s Supreme
Court had jurisdiction to invalidate the state regulation.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 21

the FAAAA, the Truck Association effectively challenges
the validity of the EPA’s determination. See New England
Legal Found., 666 F.2d at 33. Under § 307(b)(1), such a
challenge must be brought in this Court. See Virginia,
74 F.3d at 523 (explaining that appellate courts’ exclusive
jurisdiction extends to “‘legal issues pertaining to final
[actions]—whether or not those issues arise from the
statutes that authorized the agency action in the first
place’”) (alteration in original) (emphasis added) (quoting
Palumbo v. Waste Techs. Indus., 989 F.2d 156, 161 (4th
Cir.1993)). 11

In sum, the practical objective of the Truck
Association’s preemption suit is to nullify the SIP and
challenge the EPA’s legal determination regarding its
validity. Thus, it is the type of action to which § 307(b)(1)
applies. Although this case is somewhat unique, in that the
EPA approved the SIP after the Truck Association filed
suit, subsequent EPA action can divest a district court of
jurisdiction. See City of Seabrook v. Costle, 659 F.2d 1371,
1373 (5th Cir. 1981) (“Even if we assume . . . that the
district court had jurisdiction of plaintiffs’ claim . . . the
publication of the ‘final rule’ clearly left the district court
without jurisdiction of the claim [under § 307(b)(1)].”); see
also Douglas v. Indep. Living Ctr. of S. Cal., Inc., 132 S.
Ct. 1204, 1210 (2012) (explaining that respondents’
Supremacy Clause challenges to state regulations were in a
“different posture” after federal agency approved the

11
Admittedly, it is not clear from the EPA’s public notices whether it
specifically considered preemption under the FAAAA. To the extent
that it did not, this is at least somewhat attributable to the Truck
Association’s failure to comment on the EPA’s proposed rule. In any
event, the Truck Association effectively challenges the EPA’s broader
conclusion that the Regulation complies with federal law.
22 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

regulations, potentially requiring respondents to instead
seek review of agency action). Furthermore, the Truck
Association provides no persuasive reason why § 307(b)(1)
cannot apply to a regulation that was adopted to be
incorporated into a state’s SIP, simply because suit was
filed prior to the EPA’s final action. Indeed, policy
considerations underlying the CAA mandate this precise
result.

C. Policy and Fairness Considerations

In establishing the CAA’s jurisdictional scheme,
“Congress wanted speedy review of EPA rules and final
actions in a single court,” thereby avoiding “duplicative or
piecemeal litigation, and the risk of contradictory
decisions.” Virginia, 74 F.3d at 525 (internal quotation
marks and citation omitted); see also Harrison v. PPG
Indus., Inc., 446 U.S. 578, 593 (1980) (“The most obvious
advantage of direct review by a court of appeals is the time
saved compared to review by a district court, followed by a
second review on appeal.”). Allowing the Truck
Association’s suit to proceed in district court would
undermine these policy objectives. The district court’s
decision on whether the Regulation is preempted would be
subject to appeal, during which time the enforceability of
the SIP would be in limbo. This would frustrate
Congress’s goal of having prompt and final review of
decisions regarding SIPs. Moreover, even if the Truck
Association successfully enjoined enforcement of the
Regulation by CARB, a separate suit would be required to
enjoin enforcement by the EPA and private citizens,
potentially resulting in re-litigation of the same issues in
multiple courts, with the concomitant risk of conflicting
decisions. Indeed, the Truck Association admitted to the
district court that it “may challenge the approval of the SIP
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 23

. . . in a different forum . . . on similar or different
grounds,” and it subsequently did bring such other
challenges. 12 Applying § 307(b)(1) to the Truck
Association’s suit avoids these outcomes and furthers the
goals underlying the CAA’s judicial review system.

The Supreme Court’s analysis in Douglas v.
Independent Living Center of Southern California, Inc.,
132 S. Ct. 1204 (2012) supports this conclusion. In
Douglas, Medicaid providers and beneficiaries brought suit
under the Supremacy Clause alleging that California’s
Medicaid statutes conflicted with, and were preempted by,
federal Medicaid law. After the Supreme Court granted
certiorari, the federal agency responsible for administering
the Medicaid program approved the state statutes, having
determined that they complied with federal law. Id. at
1208–09. The Supreme Court found that as a result of the
agency’s approval, the case was “now in a different
posture” and “may require respondents now to proceed by
seeking review of the agency determination under the
Administrative Procedure Act rather than in an action
against California under the Supremacy Clause.” Id. at
1210 (citation omitted). Among the Court’s considerations
was that:

[T]o allow a Supremacy Clause action to
proceed once the agency has reached a

12
After the district court dismissed its suit, the Truck Association filed
a petition in this Court under § 307(b)(1), seeking review of the EPA’s
approval of the Regulation. Although we dismissed that suit as
untimely, thereby mitigating the risk of conflicting decisions, allowing
the Truck Association’s district court suit to proceed would create
precedent for such piecemeal litigation.
24 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

decision threatens potential inconsistency or
confusion.

...

. . . Indeed, to permit a difference in result
[depending upon whether the case proceeds
in a Supremacy Clause action rather than
under the APA] would subject the States to
conflicting interpretations of federal law by
several different courts (and the agency),
thereby threatening to defeat the uniformity
that Congress intended by centralizing
administration of the federal program in the
agency and to make superfluous or to
undermine traditional APA review. If the
two kinds of actions should reach the same
result, the Supremacy Clause challenge is at
best redundant. And to permit the
continuation of the action in that form would
seem to be inefficient, for the agency is not a
participant in the pending litigation below,
litigation that will decide whether the
agency-approved state rates violate the
federal statute.

Id. at 1210–11 (citation omitted). Similarly, here, the
EPA’s approval of the Regulation has changed the posture
of the case, such that a different avenue of judicial review
is appropriate to avoid potentially conflicting decisions on
the underlying question of whether the Regulation is
preempted by the FAAAA. Moreover, proceeding under
§ 307(b)(1) is preferable because the EPA would be a party
to litigation that would decide whether a regulation it
approved violates federal law.
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 25

The Truck Association correctly notes that the instant
case differs from Douglas in that the EPA does not
administer the FAAAA. Thus, the EPA’s determination
that the Regulation does not conflict with federal law may
not be the “kind of legal question that ordinarily calls for
APA review,” because it does not fall within the EPA’s
expertise. Douglas, 132 S. Ct. at 1210. Nevertheless, the
congressional interests in uniformity and finality discussed
in Douglas apply here with equal force, and are better
served by requiring challenges such as the Truck
Association’s to be heard in this Court.

Finally, the Truck Association argues that applying
§ 307(b)(1) to its suit would be unfair and leave it with no
forum in which to pursue its claim. The Truck Association
points out that when it filed suit, jurisdiction in this Court
was unavailable because the EPA had not taken final action
on the Regulation. Requiring the Truck Association to wait
for final action would mean that it could not enjoin the
Regulation from taking effect, thereby imposing heavy
costs on its members, as the EPA did not approve the
Regulation until several months after it became effective.
Furthermore, the Truck Association argues, dismissing its
suit on jurisdictional grounds would unfairly penalize it for
the district court’s delay in rendering a decision.
According to the Truck Association, had the court
adjudicated the case promptly, “judgment likely would
have predated the EPA action.” Lastly, though not raised
by the Truck Association, the district court’s dismissal of
the Association’s suit eight months after the EPA’s final
action arguably prejudiced the Association because by then,
the sixty-day window in which it could seek review in this
Court under § 307(b)(1) had closed, leaving the
Association with no court in which to bring its claim.
26 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS

These arguments, though somewhat sympathetic, are
ultimately unpersuasive. The Truck Association is
mistaken that § 307(b)(1)’s application would deny it a
forum in which to enjoin the Regulation’s implementation.
The Truck Association properly sought such relief in the
district court, and indeed that court considered and ruled
upon its motion for a preliminary injunction. The Truck
Association may be correct that it would not have been
subject to § 307(b)(1) had the district court reached an
earlier disposition on its preemption claim. However,
nothing inhibited the Truck Association from timely
pursuing that claim in this Court after the EPA approved
the Regulation in April 2012. The fact that it did not, and
is now time-barred from doing so, is the Truck
Association’s own doing.

Moreover, any unfairness to the Truck Association is
further mitigated by the fact that it was on notice, from the
Regulation’s inception, that the Regulation was intended to
be incorporated into California’s SIP. When CARB first
proposed adopting the Regulation, it issued a public notice
explaining that “[t]he [CAA] requires U.S. EPA to establish
NAAQS for pollutants,” that “Federal law mandates the
development of State Implementation Plans documenting
the actions the state will take to attain the federal air quality
standards,” that CARB’s “SIP submittals to U.S. EPA . . .
adopted 2014 reduction commitments for both [ozone] and
PM[],” and that “the proposed regulation would provide the
necessary emissions reductions by the mandatory deadlines
for meeting the NAAQS for PM[] and ozone.” 13 After

13
James N. Goldstene, Cal. Air Res. Bd., Notice of Public Hearing to
Consider the Adoption of a Proposed Regulation to Reduce Emissions
from In-Use On-Road Diesel Vehicles, and Amendments to the
Regulations for In-Use Off Road Vehicles, Drayage Trucks,
Municipality and Utility Vehicles, Mobile Cargo Handling Equipment,
 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 27

CARB submitted the Regulation to the EPA, and several
months before it was to take effect, the EPA issued a public
notice proposing to approve the Regulation and inviting
comments on its proposal. Thus, from multiple sources, the
Truck Association was on notice that it could have
participated in the administrative approval process by
submitting comments to the EPA. However, it chose not to
do so. Under these circumstances, it cannot be said that the
Truck Association has been unfairly prejudiced.

III. Conclusion

For these reasons, we affirm the district court’s
dismissal for lack of subject matter jurisdiction under CAA
§ 307(b)(1).

AFFIRMED.

Portable Engines and Equipment, Heavy duty Engines and Vehicle
Exhaust Emissions Standards and Test Procedures and Commercial
Motor Vehicle Idling 3–5 (2008), available at www.arb.ca.gov/
regact/2008/truckbus08/tbnotice.pdf.