The cases here seek the same relief and practical objective-to invalidate and render unenforceable, in whole or in part, albeit on different grounds, a state regulation known as the Truck and Bus Regulation
The pertinent question is a discrete issue of statutory interpretation: whether section 307(b)(1) vests exclusive and original jurisdiction over these challenges to the Regulation incorporated into and approved as part of California's SIP in the Ninth Circuit Court of Appeals. We conclude it does and affirm the judgments for lack of jurisdiction.
GENERAL BACKGROUND
To assist in a better understanding of the factual and procedural background of these cases and the discussion that follows, we begin with the general background of the regulatory framework underlying the Act and its jurisdictional provisions.
Regulatory Framework And Background
The Act "sets forth a cooperative state-federal scheme for improving the nation's air quality." ( Vigil v. Leavitt (9th Cir. 2004)
The Administrator is required to approve the state's SIP submission if it complies with the provisions of the Act and appliсable federal regulations. (
In May 2011, the Board submitted the Regulation to the Agency for inclusion in California's SIP. ( 76 Fed.Reg. 40652, 40653 (July 11, 2011).) The Board had adopted the Regulation in 2008 to help California meet the national standards for fine particulate matter and ozone. ( Cal. Code Regs., tit. 13, § 2025, subd. (a) ; Dump Truck , supra ,
On April 4, 2012, the Agency issued its final rule approving the Board's SIP submission, noting it received no comments on its proposed rule. ( 77 Fed.Reg. 20308-20314 (Apr. 4, 2012).) The Regulation was incorporated into California's SIP by rеference. (
II
The Jurisdictional Statute
Section 307(b)(1) provides, in pertinent part: "A petition for review of the Administrator's action in approving or promulgating any implementation plan ... or any other final action of the Administrator under this Act ... which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit." (
Section 307(b)(2) of the Act
PROCEDURAL AND FACTUAL BACKGROUND
I
Alliance
Alliance promotes business interests throughout California. Its membership includes truck owners and operators subject to the Regulation. Alliance sued the Board and its сhair, executive officer, and board members in Glenn County Superior Court claiming safety concerns with the installation and use of the filters. After several law and motion rulings, Alliance's complaint was limited to a single cause of action for declaratory relief.
Alliance alleged the controversy concerns the "legality [of the Regulation], as designed, approved, and implemented by defendants," and that its members would suffer irreparable harm if the Regulation is implemented and enforced because they would be "forced to install an unproven, defective and dangerous technology, to wit the [filter] device" or suffer fines, penalties, and lost revenue due to the inability to oрerate their trucks in California. In its request for relief, Alliance sought a declaration that the continued enforcement of the Regulation and Verification Procedure, in whole or in part, with respect to the filter requirement would place Alliance members "in the position of violating California public health and safety laws." It further sought an injunction prohibiting enforcement of the Regulation and the Verification Procedure "in their entirety, or at least as to the current [filter] device requirements."
Defendants filed a motion for judgment on the pleadings on two grounds: (1) the complaint failed to state facts sufficient to constitute a cause of action because subdivision (q)(5) of the Regulation provides a procedure by which an owner or operator of a diesel truck subject to the retrofit requirement may receive an exemption upon a showing that installation of a verified filter would violate state and federal health and safety laws; and (2) the court lacked jurisdiction because Alliance's members failed to exhaust their administrative remedies under subdivision (q)(5) of the Regulation prior to filing suit.
The court entered judgment in favor of the defendants. Alliance appeals.
II
Cody
Cody is an out-of-state professional truck driver who was issued a citation in October 2014 for operating a truck in California without a filter, in violation of the Regulation. This is Cody's fourth legal proceeding arising out of the citation and his fourth attempt to invalidate the Regulation for violation of the dormant commerce clause. Having failed in his original choice of venue, federal district court and the Ninth Circuit, and then in Sacramento Superior Court, he now brings this matter before us on appeal.
A
Federal Challenges
In 2014, Cody joined a suit by the Owner-Operator Independent Drivers Association, Inc. (OOIDA) and individual truck owner-operators against the Board to invalidate the Regulation, filed in the Eastern District of California. ( OOIDA v. Corey (E.D. Cal. July 9, 2015, No. 2:14-CV-00186-MCE-AC),
The district court found the facial and as-applied challenges implicated the Agency's final action approving the Regulation as part of California's SIP and, therefore, under section 307(b)(1), the claims fell within the original and
Following the transfer to the Ninth Circuit, the Board moved to dismiss the claim for lack of jurisdiction based on the 60-day statute of limitations in section 307(b)(1). The Board argued Cody's challenge existed when the Agency approved the Regulation
On January 27, 2016, the Ninth Circuit granted the motions to dismiss. The order did not include an opinion, but the court cited to section 307(b)(1) and its prior Dump Truck decision. In Dump Truck , the Ninth Circuit held that section 307(b)(1) vested exclusive jurisdiction over a constitutional preemption claim seeking to invalidate the Regulation (following its approval as part of the SIP) in the Ninth Circuit. ( Dump Truck , supra , 784 F.3d at pp. 502-504.)
B
State Challenges
On June 23, 2015, while the district court case was pending, Cody filed a petition for writ of mandate and complaint for declaratory relief against the Board, the Board's chair and executive officer, and the secretary for environmental protection in the California Environmental Protection Agency in Sacramento County Superior Court.
Cody alleged the Regulation violates the dormant commerce clause because it disproportionately burdens out-of-state truckers and improperly regulates interstate commerce. He requested an order declaring the Regulation unconstitutional "on its face and/or as applied" and prohibiting the Board from enforcing the Regulation against him and "other similarly situated interstate truck owner-operators." Defendants filed a motion for judgment on the pleadings for lack of jurisdiction, asserting the Ninth Circuit has exclusive jurisdiction over Cody's claims under section 307(b)(1). Cody opposed the motion, arguing state court jurisdiction was appropriate because he was asserting the constitutional claim as a defense to prosecution.
The trial court agreed with the defendants and granted the motion. Relying on Dump Truck , the court explained that, "[d]ue to the [Agency's] approval of the Regulation as part of California's SIP, [Cody's] complaint effectively challenges the validity of the SIP, and therefore is the type of action to which section 307(b)(1) of the [Act] applies." Cody appeals.
DISCUSSION
I
Standard Of Review
The lack of subjеct matter jurisdiction cannot be waived and may be raised at any time, even for the first time on appeal. ( People v. Lara , supra ,
The Ninth Circuit Has Exclusive Jurisdiction Over These Cases
A
Where Section 307(b)(1) Applies, It Confers Exclusive Jurisdiction
The initial question is whether section 307(b)(1) grants the federal circuit courts of appeals original and exclusive jurisdiction over the actions enumerated therein. It does.
State courts are generally presumed to have concurrent jurisdiction with federal courts, subject to the limitations of the supremacy clause of the United States Constitution. ( Burt v. Titlow (2013)
While section 307(b)(1) is silent regarding the jurisdiction of state courts, the express language of the statute rebuts the presumption of concurrent jurisdiction. As in any case of statutory interpretation, we look to the words Congress used and give them their usual and ordinary meaning. ( People v. Superior Court (Zamudio) (2000)
Here, the statute provides that the Administrator's approval of a SIP submission "may be filed only in the United States Court of Appeals for the [appropriate circuit]." (
Our сonclusion is supported by the Supreme Court's interpretation of an analogous jurisdictional statute-section 509(b)(1) of the federal Clean Water Act. Section 509(b)(1) of the Clean Water Act provides that challenges to seven categories of Agency action "may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person."
B
The Cases Fall Within Section 307(b)(1)'s Jurisdictional Mandate
We next evaluate whether Cody's and Alliance's claims are of the type Congress intended to channel to the federal courts of appeals. Relying on the sound principles of statutory interpretation, we find they are subject to the jurisdictional mandate. The Act's comprehensive enforcement structure and unambiguous text, combined with Congress's clear concern with channeling and streamlining challenges to approved SIP submissions in one jurisdiction, establishes a " 'fairly discernable' " intent to preclude state court review in these cases. ( Thunder Basin Coal Co. v. Reich (1994)
We agree with all pertinent federal appellate decisions that the scope of section 307(b)(1)'s jurisdictional requirement "extends to claims that, as a practical matter , challenge an [Agency's] final action, including its approval of a SIP." ( Dump Truck , supra ,
The Ninth Circuit reviewed the scope of section 307(b)(1) and, relying on, among other cases, Com. of VA. , and State of MO. , determined the plaintiff's suit, "as a practical matter, challenge[d] the [Agency's] approval of a provision of California's SIP," subjecting it to the jurisdictional mandate. ( Dump Truck , supra , 784 F.3d at pp. 505-507.) The court explained that "the SIP's effectiveness in attaining the [Agency's national air quality standards] is directly tied to its enforcement by [the Board], and would be vitiated if such
The Dump Truck decision and analysis are well-grounded in statutory interpretation, logic, and policy. We cannot divorce the Regulation from the Agency's SIP approval; the Regulation and SIP are inextricably intertwined. As a practical matter, if a California court invalidates the Regulation on substantive grounds, it would amount to an implicit repeal of the Agenсy's approved SIP because the Regulation is incorporated into the SIP by reference only. (
Further, by seeking to enjoin the Board from enforcing the Regulation, Cody and Alliance are practically challenging the Agency's approval of the Regulation because the Board is enforcing the Regulation under the authority conferred upon it by the Act and the Administrator's approval of the Regulation as part of the SIP. (76 Fed.Reg., supra , at pp. 40658-40659; Bayview Hunters v. Metropolitan Transp. , supra ,
To distinguish Dump Truck , the plaintiffs focus on the substance of their claims. Alliance argues section 307(b)(1) does not apply to state law claims. Cody argues his constitutional challenge does not implicate section 307(b)(1) because the Agency did not expressly opine on the commerce clause implications of the Regulation in its rulemaking, as compared to its express consideration of the preemption argument raised in Dump Truck . We are not persuaded. Section 307(b)(1) does not distinguish between or discuss the substantive
Moreover, exclusive jurisdiction to review administrative determinations includes jurisdiction over related legal issues pertaining to thosе decisions. ( Palumbo v. Waste Technologies Industries (4th Cir. 1993)
Our conclusion also furthers congressional intent. Our primary task in statutory interpretation "is to determine [Congress's] intent, giving effect to the law's purpose." ( Tuolumne Jobs & Small Business Alliance v. Superior Court (2014)
The policies and purposes underlying the exclusive jurisdiction mandatе of section 307(b)(1) are expediency and finality. "Congress wanted speedy review of [Agency] rules and final actions in a single court." ( Com. of VA. v. U.S. , supra ,
Allowing Cody and Alliance to proceed with their cases in state court would undermine these policy objectives. The cases would proceed in different venues in state suрerior court and would then be subject to appeal in the court of appeal and possibly our Supreme Court. At the same time, others could pursue similar challenges to the Regulation in other state venues and in the Ninth Circuit (in accordance with Dump Truck ), creating substantial potential for inconsistent judgments. As the Ninth Circuit explained in Dump Truck : "This would frustrate Congress's goal of having prompt and final review of decisions regarding SIPs." (
These concerns are amplified by the Agency's absence in these сases. The pending litigation would decide whether
We find none of Cody's or Alliance's remaining arguments availing. First, Alliance attempts to distinguish its claims from those in Dump Truck by arguing it is not seeking to "completely" invalidate the Regulation, but merely challenging "how the regulation is implemented by [the Board] and to the narrow issue of why the verified [filter] devices, at this time, have proven to be unsafe, and therefore conflict with other public safety laws; as such, members of the Alliance should not be mandated to employ the [filter] technology." This argument belies the allegations in its complaint and appellate opening brief, wherein Alliance requests a declaration that the Regulation is invalid and unenforceable in whole or in part.
Cody and Alliance, like the plaintiff in Dump Truck , also rely on Sierra Club v. Indiana-Kentucky Elec. Corp. (7th Cir. 1983)
The "waiver" cases ( Motor and Equipment Mfrs. Ass'n, Inc. v. E. P. A. (D.C. Cir. 1979)
Finally, our interpretation does not violate due process, as Cody contends. Cody argues it is "a fundamental principle of administrative law" that he be permitted to raise his constitutional challenge as a defense in the Board's enforcement proceeding. He hyperbolically asserts "the trial court gave away, wholesale, the authority of every Superior Court judge in this state to vindicate the basic right to defend oneself in civil or criminal enforcement
This preclusion-of-review provision does not foreclose all meaningful judicial review. Section 307(b)(1) expressly provides that an action may be brought more than 60 days after the SIP's approval if it "is based solely on grounds arising after such sixtieth day." (
C
Alliance's Verification Procedure Allegations Do Not Independently Support Its Declaratory Relief Cause Of Action
Alliance acknowledges the Verification Procedure imposes no requirements on truck drivers; it merely imposes requirements on manufacturers seeking to verify their filters under the Regulation. It claims, however, the Verification Procedure
A declaratory relief action requires an actual controversy relating to the legal rights and duties of the respective parties. ( Code Civ. Proc., § 1060.) Alliance's alleged controversy flows from the Regulation, not from the Verified Procedure. But for the Regulation, there would be no controversy to support a declaratory relief cause of action relating to the Verification Procedure because: (1) the Verification Procedure does not impose any requirements on Alliance or its members (i.e., truck drivers) ( Cal. Code Regs., tit. 13, §§ 2700 - 2711 ); and (2) Alliance's claims regarding the Verification Procedure relates to the Verification Procedure "as a critical component of
Moreover, the Agency approved the Regulation's requirements that the filters be verified pursuant to the Verification Procedure as part of its SIP approval. (76 Fed.Reg., supra , at p. 40654.) Therefore, a challenge to this requirement in the Regulation is subject to the jurisdictional mandate of section 307(b)(1) as well.
DISPOSITION
The judgments are affirmed for lack of subject matter jurisdiction. Respondents shall recover their respective costs on appеal. ( Cal. Rules of Court, rule 8.278(a)(1).)
We concur:
Raye, P.J.
Duarte, J.
Notes
"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.)
Alliance confusingly uses variations of its name in its briefing. We use the name identified in its notice of appeal.
All subsequent references to section 307(b)(1) shall be to that section in the Act. Section 307(b)(1) is codified at section 7607(b)(1) of title 42 of the United States Code.
While the Alliance defendants did not raise it in the trial court, lack of subject matter jurisdiction may be raised for the first time on appeal. (People v. Lara (2010)
A diesel particulate filter is a highest level verified diesel emission control strategy (also known as "Highest level VDECS") to reduce diesel partiсulate emissions required by the Regulation for retrofitting pre-2007 engines. (Cal. Code Regs., tit. 13, § 2025, subds. (d)(18), (d)(35), (d)(60), (e)-(g).)
"Verification Procedure, Warranty and In-Use Compliance Requirements for In-Use Strategies to Control Emissions from Diesel Engines." (Cal. Code Regs., tit. 13, §§ 2700 -2711.)
All subsequent references to section 307(b)(2) shall be to that section in the Act. Section 307(b)(2) is codified at section 7607(b)(2) of title 42 of the United States Code.
All subsequent references to section 307(e) shall be to that section in the Act. Section 307(e) is codified at section 7607(e) of title 42 of the United States Code.
OOIDA appealed the dismissal of its claims to the Ninth Circuit. The Ninth Circuit affirmed the district court's judgment because, " 'as a practical matter,' " the suit challenged the Administrator's final action in approving the Regulation as part of the SIP. (OOIDA v. Corey (9th Cir. 2017)
Cody was not "haled into state court for a violation of state law," as he asserts. Cody is the plaintiff.
Notably, section 307(b)(2) and section 509(b)(2) of the Clean Water Act have identical preclusion-of-review provisions, which mandate that any agency action reviewable under their respective preceding subdivisions (b)(1) "shall not be subject to judicial review in any civil or criminal proceeding for enforcement." (
Notably, where it is unclear whether review jurisdiction falls within the statute's exclusive jurisdiction, ambiguity is resolved in favor of the jurisdictional mandate. (General Elec. Uranium v. Dept. of Energy (D.C. Cir. 1985)
In evaluating subject matter jurisdiction, we focus on the claims for relief in the context of the allegations in the complaint. (2 Lambden at al., Cal. Civ. Practice (2008) Jurisdictional Effect, § 8:3, citing 2 Witkin, Cal. Procedure (4th ed.) Jurisdiction, §§ 22 to 31 ["The demand for relief is also used, in conjunction with the rest of the complaint, to determine whether an action has been filed in the appropriate jurisdiction"].)
The legal authority of the state under the federal Constitution and state law to implement the SIP is frequently expressly discussed by the Administrator during the SIP approval process. (See 76 Fed.Reg., supra , at p. 40658 [preemption does not present an obstacle to the implementation of the Regulation by California]; Ass'n. of Irritated Residents v. United States EPA (9th Cir. 2015)