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.
ORDER AND
MARY D. NICHOLS, Chairperson of AMENDED
the California Air Resources Board; OPINION
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
Amended April 27, 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
∗
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
California environmental regulation addressing diesel
trucks.
The panel affirmed the district court’s holding that the
Environmental Protection Agency’s approval of the
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.
4 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
ORDER
The opinion filed on March 3, 2015, and published at 778
F.3d 1119, is hereby amended as follows:
On page 1132, the following text should be placed in a
new footnote inserted after the words :
We also note that although 28 U.S.C. § 1631
provides for transfer of cases when the
original court lacked jurisdiction, but the
transferee court would have had jurisdiction
at the time the complaint was filed, this
statute does not apply here. At the time the
Truck Association filed its complaint, this
court did not have jurisdiction over the case,
because the EPA had not yet approved the
Regulation as part of California’s SIP. Only
when the EPA later took final action in
approving the Regulation as part of
California’s SIP well after the complaint was
filed did this court gain jurisdiction pursuant
to § 307(b)(1). Because we would not have
been able to exercise jurisdiction on the date
the case was filed in the district court, which
is one of the requirements of § 1631, we
could not have transferred the case to this
court under that statute.
With this amendment, the petition for panel rehearing is
denied. Judge Silverman voted to deny the petition for
rehearing en banc and Judges Noonan and Huck so
recommend. The full court has been advised of the petition
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 5
for rehearing en banc and no judge of the court has requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
Appellees’ petition for rehearing and petition for
rehearing en banc are DENIED. No further petitions for
rehearing or rehearing en banc will be entertained.
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 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
1
The Truck Association is a trade association representing construction
trucking companies operating in California.
6 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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
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
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 7
(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
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
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.
8 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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,
the EPA concluded that the Regulation complied with the
4
The Regulation as submitted to the EPA included certain amendments
that were adopted by CARB in 2011.
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 9
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
10 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 11
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. § 7604(b)(1). By contrast, no
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
12 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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.
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))).
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
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 13
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
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 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).
14 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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 circuit court” by “framing
its complaint as a constitutional challenge to the CAA.” Id.
at 522–23 (emphasis added). 7
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
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 15
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:
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
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.
16 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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).
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
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
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 17
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 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
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.
18 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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:
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).
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 19
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.
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
20 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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
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
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.
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 21
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 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
22 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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 detract
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 23
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
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.
24 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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
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
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.
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 25
§ 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 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
26 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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
. . . 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
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.
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 27
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
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
28 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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.
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
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 29
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.
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. 13
13
We also note that although 28 U.S.C. § 1631 provides for transfer of
cases when the original court lacked jurisdiction, but the transferee court
would have had jurisdiction at the time the complaint was filed, this
statute does not apply here. At the time the Truck Association filed its
complaint, this court did not have jurisdiction over the case, because the
EPA had not yet approved the Regulation as part of California’s SIP.
Only when the EPA later took final action in approving the Regulation
as part of California’s SIP well after the complaint was filed did this
court gain jurisdiction pursuant to § 307(b)(1). Because we would not
30 CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS
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.” 14 After
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
have been able to exercise jurisdiction on the date the case was filed in
the district court, which is one of the requirements of § 1631, we could
not have transferred the case to this court under that statute.
14
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, 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.
CALIFORNIA DUMP TRUCK OWNERS V. NICHOLS 31
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.