*2 IKUTA, Circuit Judges.
Opinion by GOULD; Judge Concurrence Judge WALLACE. GOULD, Circuit Judge: The Romoland School District and sev- eral individuals and environmental groups, “Plaintiffs”) (collectively, appeal the denial of their preliminary injunc- motion for a tion and the dismissal with prejudice of their two claims Empire Inland (“IEEC”), Energy wholly-owned Center subsidiary of General Electric Company. brought Plaintiffs suit un- IEEC der the citizen suit of the Clean (“CAA” “Act”), Air Act 42 U.S.C. in connection plans with IEEC’s an 810-megawatt plant construct power 1,100 approximately feet from the Romo- Elementary land School in Riverside County, California. IEEC’s motion to dis- contended, miss among things, Marc D. Joseph Peesapati, and Suma the district court lacked over Cardozo, Adams Joseph Broadwell & the suit because had granted IEEC been Francisco, CA, South San plain- CAA, under Title V tiffs-appellants. 7661-7661Í, §§ permits and such may challenged civil or criminal Wyman, Robert A. Romey, Michael G. proceedings enforcement in federal district Hahn, Watkins, and Ernest J. Latham & court under 42 U.S.C. LLP, CA, Angeles, Los for defendant-ap- pellee Empire Inland Energy Center. Plaintiffs also included as defendant in
Bradley Hogin, R. their CAA action the Woodruff South Coast Air Spradlin & Smart, CA, (“the Orange, defendants-appel- Quality Management District air dis- I air “SCAQMD”),1 pollu- the local
trict” or the rele- agency that issued tion control begin and authorized IEEC to
vant A *3 power plant. After construction of the Act in the Clean Air Congress passed for Plaintiffs’ motion court denied district quality and enhance the protect 1970 “to injunction and dismissed preliminary pro air resources so as of the Nation’s against IEEC under Federal their claims and welfare and mote the health 12(b)(6), public Procedure Plaintiffs Rule of Civil capacity population.” of its voluntarily productive to dismiss their claims sought 7401(b)(1). Rule under Federal against § the air district Towards this 42 U.S.C. 41(a)(2) “final gain of Civil Procedure end, Environmental the United States of an The judgment purposes appeal.” for (“EPA”) Agency responsible Protection is motion, granted Plaintiffs’ district court may en identifying pollutants air order did not state accompanying but health and welfare and for danger public against the dismissal of the claims for the maximum promulgating standards prejudice. air was with district pol of each such allowable concentrations two threshold issues We must resolve air, known as National Am lutant may jurisdiction before we consider NAAQS. Quality Air bient Standards (1) whether merits of Plaintiffs’ claims: 7408(a), §§ 42 CAA U.S.C. court’s of the claims the district dismissals EPA to each requires further divide decision present us with final this case regions, control see quality state into air (2) 1291; § and pursuant to 28 U.S.C. 7407(b)-(c). SCAQMD § oversees one id. District of whether the Central California California, region such South Coast forum, and 42 appropriate was an Basin, County comprising Orange Air basis, statutory appropriate § 7604 an Riverside, Angeles, of Los portions challenge Plaintiffs’ such that the district Engine San Bernardino Counties. See pursuant over it court had Quality Air Ass’n v. South Coast Mfrs. conclude that the 28 U.S.C. 1331. We (9th Dist., F.3d Cir. Mgmt. part from are of a final appealed orders 2007). quality region Each air control is jurisdic- that we have judgment and thus “attainment” or “nonat- labeled as either case, but that the district tion over this pollutant tainment” for each identified de Accordingly, court not. we affirm the did average level of pending on whether the the claims district court’s dismissal of pollutant region in the air in that is hold that the prejudice, IEEC with (nonat- (attainment) at or or above below air also claims district should tainment) by the the level mandated be deemed to be dismissed with NAAQS. Air Basin is an South Coast voluntary notwithstanding the pollutants for some air attainment area point, silence on this and further order’s lead is a nonattainment area for like but that all on Plaintiffs’ mo- proceedings hold monoxide, ozone, and particulate carbon preliminary injunction for a are void tion ten microns in diame matter smaller than ju- court was without because ter, that motion. as PM10. risdiction to entertain known right, brought against Barry R. in his own the terms "air district” 1. Plaintiffs also suit SCAQMD, "SCAQMD” Wallerstein, opinion an executive officer of will be used in this However, capacity. as Waller- in his official collectively to the defendant air district refer represented by the same counsel as stein and to defendant Wallerstein. the air district and has not filed motions Each state must also submit to EPA a increase a nonattainment air contami- Implementation Plan or State SIP estab- nant” unless the applicant shows through lishing “enforceable emission limitations modeling that the proposed activity “will control designed and other measures” to not cause a significant pollu- increase” in preserve NAAQS attainment of the in at- tion and that all emissions will be offset tainment areas and achieve attainment in with emission reduction credits. See Rule nonattainment areas. See U.S.C. 1303(b)(l)-(2).3 7410(a)(2)(A). required One element of rule, Once a local SCAQMD like Rule all SIPs states with nonattainment ar- 1303, part becomes of an EPA-approved *4 eas, through introduced into the CAA SIP after a public notice and comment amendments, program is a permitting period, it federally becomes enforceable in major for new or stationary modified district court through the CAA’s citizen air pollution, sources of such as electrical provision, suit § 42 U.S.C. 7604. This pro- smokestacks, generators factory or “[a]ny vision states that person may com- those nonattainment areas. See 42 U.S.C. mence a civil action on his own behalf 7502(c)(5). 7410(a)(2)(C), §§ Under this against any person ... who is ... alleged (“NSR”) “new source review” program, to be in violation of ... an emission stan- any project new or modification to an ex- limitation,” dard or including “any ... isting project that emit would more than a standard, limitation, or schedule estab- threshold amount pollutant of a for which lished ... any under Implemen- State that region NAAQS has not attained the tation Plan approved by the [EPA] admin- apply permit must for a to construct and 7604(a)(1), §§ istrator-” 42 U.S.C. operate source, pollution and such a 7604(f)(3)-(4). “The district courts shall permit may only granted project if the jurisdiction, have regard without technology uses that will ensure “the low- amount in controversy or the citizenship of est achievable emission rate” and obtains parties, to enforce such an emission emission reduction credits to offset the standard or limitation ... and apply any to emissions that it will produce. U.S.C. ” appropriate civil penalties.... Id. 7503(a)(l)-(2). § SCAQMD implements its 7604(a). § program, NSR part now of the California SIP, 1303,2 1990, through provides Congress Rule which amended the CAA to deny the air district a system “shall the Permit add nationwide of operating per- any to Construct for new or modified mits like by those mandated other environ- source which results a net emission mental laws such as the Clean Water Act. may 2. The air district's rules modeling be accessed at Rule 2005 contains re- offsets http://yosemite.epa.gov/R9/r9sips.nsi7Agency? quirements virtually that are to identical & ReadForm count=500 & state=California See, e.g., those in Rule 1303. Rule Coast-I-Air+Quality & cat=South + + Man- 2005(b)(1)(B) (“The ap- [air shall not district] agement District-Agency-Wide + + Provisions prove application permit for a ... to (last 2008). August visited authorize construction or installation of a facility applicant new or relocated unless the promulgated 3. The air district has another [through modeling] demonstrates that ... provision, applies NSR Rule operation any emission source located at Regional the air district's Clean Air Incentives facility the ... will not cause a violation or Market, RECLAIM,program, special per- significantly existing make worse an violation mitting program large nitrogen emitters of (The quality ... national ambient air stan- power plant sulfur oxides. IEEC subject any receptor dard at litigation that is the location in this received its the Dis- permit ..."). through program.) the RECLAIM trict. (1989) 101-228, regulations setting out the promulgated No. at 349 S.Rep. See Report]. The 1990 pro- Senate minimum elements that such state [hereinafter op- it “unlawful ... made amendments grams gain approval, must contain to EPA in- pollution, of air many sources erate” and one of these elements concerned the in a nonattain- located any source cluding judicial review: available mechanisms already that would have been region (x) proposed program state’s [The must] requirements of 42 the NSR opportunity judicial re- [p]rovide 7503, “except compliance § permit view in State court of the final permitting authority permit issued any person who applicant, action 7661a(a). 42 U.S.C. title.” under this public participation in the participated provisions, com- operating These 70.7(h) process provided pursuant CAA, as Title V of the monly referred to person who part, un- specify issued “[e]ach also obtain review of such ac- could include enforceable der this title shall pro- tions under State laws.... [The standards, emission limitations and (xii) that the gram [p]rovide must also] ... and such other *5 compliance, schedule of judicial opportunity for review described necessary to assure com- conditions as are (b)(3)(x) paragraph of this section requirements of pliance applicable shall be the exclusive means for obtain- Act, requirements the of the including this ing judicial of the and con- review terms implementation plan.” applicable [state] permits, require ditions of that such 7661e(a). impos- § 42 Rather than U.S.C. judicial petitions for review must be filed requirements on ing an additional set of days later than 90 the final no after sources, scheme pollution permitting this action, or permit such shorter time as “incorporate require- was intended to the require- designate. the State shall (including ments of the Act SIP ments) are[already] applicable that the (xii). 70.4(b)(3)(x), § 40 C.F.R. at Report source.” Senate 350. See also 1992) 32250, 21, Fed.Reg. (July provi- 57 32251 Title V differs from earlier CAA (EPA regulations implementing notice of EPA greater sions exercises a de- V) (“While generally Title Title V does not gree ongoing oversight, reviewing of not ... impose requirements, substantive new only permit programs the states’ indi- but program clarify, single will ... in a [t]he permit applications permits vidual document, requirements apply to a 7661d(a)(l). Moreover, § 42 well. U.S.C. and, thus, compli- source should enhance power permits: EPA has over Title veto V Act.”). requirements ance with the of the “If any permit contains conditions that are determined the [EPA] Administrator as As with the SIPs under 42 U.S.C. compliance applicable not in with the re- 7410, § pollution each state or local control Act, quirements including of this the re- agency design program was to a for ad- quirements applicable imple- of an [state] EPA ministering permits Title V plan, mentation the Administrator shall approve disapprove would either or after object ... 42 an 42 its issuance.” U.S.C. opportunity public comment. 7661a(d)(l).4 7661d(b)(l). objects § § If EPA Shortly permit, U.S.C. after Title 1990, may V was added to the EPA it it CAA be issued unless is first SCAQMD's 7, (dd)(2); (December permit program Fed.Reg. 4. Title V codi- 63503 (notice 2001) granting approval fied in Rules received final to 34 3000-3008 and final California, 30, approval operating permit programs from EPA on November 2001. in- 70, A, SCAQMD). cluding pt. appendix See 40 C.F.R. California objection § the into revised to take account. Res.Code grant Before CEC can 7661d(c). 7661d(b)(3), §§at certification, Id. however, it must forward application district, to the local air. object days If EPA does not within 45 which in turn determines whether pro- permit, “any receiving proposed person posed plant meets requirements may petition the Administrator make [to local, NSR and all state objection] days such within 60 after the and federal pollution regulations. air See 45-day expiration period review Regs § CahCode tit. 1744.5. This re- objections only based on process view has steps two within were raised specificity with reasonable SCAQMD: First, after initial its evalua- during public period provided comment ” tion, the air permitting agency Preliminary .... at district issues a Id. 7661d(b)(2). days receiving (“PDOC”), Within Determination of Compliance EPA petition, grant such must either and this document contains necessary petition and proposed objection make the applicant conditions the must meet for fi- if the petitioner successfully demonstrates Second, nal approval. public after a com- “that compliance is not in period, the air district issues a Final Act,” requirements of this deny (“FDOC”). Determination of Compliance petition. “Any Id. denial petition of such Only after air district has issued an shall be review under” project may FDOC for a grant CEC CAA con- approval project. to that cerning judicial agency review of actions. *6 In addition to its indirect role in the judicial Id. That review allows process, SCAQMD CEC directly adminis- “locally regionally for direct review of permitting ters other schemes applicable” EPA in actions the court of First, to the project IEEC at issue here. appeals for the circuit in which the action every piece equipment may of release arose, but also states that “[a]ction of the air contaminants must obtain a separate respect Administrator with to which re- Permit to Construct under District Rule view could have been obtained under [this and, 201 once the Permit to Construct is subject section] shall not be to granted equipment in and the proceedings review civil or criminal is evaluated for for 7607(b)(l)-(2). compliance enforcement.” 42 its permit, with that a Permit Operate
to under District Rule 203. B Large projected facilities that are to emit than pollution more a certain amount of power New in plants County Riverside and so are of to Title V the CAA must undergo overlapping certification must a “facility-wide also obtain Title V processes they may built, before some permit” in per- addition to the individual of which track requirements of the mits to construct and permits operate to federal unique CAA and others that are to required piece equipment each at California or to the air district. The Cali- facility. Finally, large ni- emitters of (“CEC”) fornia Energy Commission as- trogen qualify and sulfur oxides that sesses the public environmental and health program RECLAIM discussed foot- impacts any proposed power plant facility permit note 3 receive a RECLAIM generating capacity of more than 50 megawatts from the air district authority pursuant and has the sole to District certify 2006(b)(3); operation the construction and of a Rule 2006. Rule See Rule 3004(b). power plant of that size. See Cal. Pub. hearing, expressed no one for “certifi- June but applied first to CEC
IEEC Romoland, an oral through to the amendment power plant opposition cation of a County” area of Riverside dur- unincorporated comments either before or or written 16, 17, September August on 2001. On Plaintiffs-Appellants hearing. 2001, applications submitted IEEC strikingly at that time. were silent to construct associ- permits air district for Because the modifications IEEC’s September on project ated with project required supply it to new proposed for a Title V application its submitted analy- modeling calculations and emissions 12, 2002, July SCAQMD is- On permit. district, canceled its to the air IEEC sis CEC, project for the its PDOC sued permit applications and submitted pending 2003, 28, air district is- February on early superseding applications twelve 17, 2003, December an FDOC. On sued for a revised including application certify its decision published CEC facility permit and Title V and RECLAIM School noting the Romoland power plant, permits to con- applications eleven at the pollution concerns District’s about pieces equipment. individual On struct facility concluding po- that all nearby but 2, 2005, published air June district impacts on the tential environmental in a Notice of Intent to Issue Permit new insignificant, or were school were “either also mailed the newspaper Riverside significant than level.” mitigated to less separate address- notice to more than 750 Intent to air issued a Notice of expressed of individuals who had either es July grant IEEC’s Title V being an interest in notified of such activi- any permits to con- never issued but quarter-mile who lived ties or within facility design; struct associated with proposed power plant loca- radius of the instead, petitioned in March of IEEC 3006(a).6 212(c)-(d); Rule This tion. See modify project larger, its to use CEC to description project included a notice energy-efficient more turbines would emissions, an explanation and its estimated proposed plant’s generating increase the *7 procedures public for comment and of the megawatts. from 670 to 810 CEC capacity requesting hearing proposed for a on the proposal modify this to to be a deemed per- contact for a permit, and information an amendment to IEEC’s CEC request for at the air district that members of the son authorization, amend- approved and this plant. See public speak could to about 22, holding 2005 after ment on June 3006(b). 212(g); plaintiffs of the Rule One subject, public hearing concluding on the case, Respon- California for Unions that “the modifications would not create (“CURE”), Energy sent the air dis- sible unmitigated significant new or envi- April asking trict a letter in of 2005 to be impacts that the new tur- [and ronmental developments regarding notified of all provide] superior would fuel econo- bines proposal, and so was includ- my IEEC CURE performance.”5 and environmental mailing in the of the Notice of Intent objections was invited to raise ed public facility configuration proposed at the and was also informed of other to the new site, facility proposed mile radius of the as well as 5. Because of the nature of the amendment, required the air district was not parents attending of children the Romoland provide CEC a new PDOC and FDOC School, to Elementary was conducted IEEC project. for the itself, with the relevant names and addresses provided to IEEC the air district. 212(d), District Rule the mail- Pursuant to quarter- of notice to individuals within a SCAQMD project.7 actions on the Califor- to pieces equipment various and ex- § Safety nia Health and Code 42302.1 af- plained that those applications “associated “any aggrieved person” right fords to Facility with this Permit have ap- been petition hearing permit for a on the before proved for Permits to Tempo- Construct/ ” hearing the air district’s board within 30 rary Operate.... Permits to This cover days receiving the Notice of Intent to letter further stated that “the enclosed again days Issue Permit and within 30 Facility V Permit ... will RECLAIM/Title issued; however, permit after a none of serve as the official your facili- used this administrative rem- ty.” edy. copy EPA also received a of the proposed permit July and stated in a C object 2005 e-mail that it would not 22, 2006,8 February On Plaintiffs sent permit’s petitioned issuance. No one EPA SCAQMD both and “60-day IEEC no- object. to reconsider its decision not to tice of intent to sue” as required by the 7661d(b)(l)-(2) See U.S.C. § (requiring citizen suit CAA. object EPA U.S.C. non-compliant permit to 7604(b)(1)(A). that, This letter stated provisions establishing and administrative based on petitions and review of citizen the terms of its air district-ap- objection EPA permit applica- proved to state permit, power plant was in tions). violation of the provisions CAA’s NSR (1) respects: two the emission reduction 5, 2005,
Accordingly, August on purchased credits IEEC had to offset its SCAQMD issued IEEC document enti- 1303(b)(2) pursuant emissions to Rule were tled Facility V Permit” “RECLAIM/Title from Priority obtained the district’s Re- (F G) which contained sections and de- serve, a bank of credits for which IEEC scribing the RECLAIM rules (2) eligible; was not plant was (K) facility, a section listing adminis- projected to emit more than the allowable V, trative conditions associated with Title particulate amount of fine (D H) matter or PM10 enumerating two sections 1303(b)(1). in violation of Rule Plaintiffs facility “emission sources at [the] that have complaint filed a in federal district court been Operate issued Permit or a Permit the Central District of California on along Construct April invoking conditions for emission fa- the CAA’s citizen suit sources at[the] cility.” provision, 7604(a), The cover letter sent with the as the basis *8 assigned also application numbers asserting and the same two CURE, conferences, 7. any hearings as well as the Romoland ed School in CEC and District, public had also been involved in the while Romoland School District did submit proceedings prior comment before CEC to the comments, these concerned the school dis- project FDOC issuance and certification in funding trict’s desire to receive from IEEC to Specifically, plaintiffs 2003. both of these Elementary facilitate relocation of Romoland for, petitioned granted, CEC and were formal proposed School to a site farther from the pro- intervenor status in IEEC’s certification cess, power plant any and did not raise concerns gave right them the to submit project’s about the PM10 emission levels or requests any party (including data to litigation. offsets that became basis of this IEEC), participate CEC-sponsored in confer- hearings, present ences and and cross-exam- IEEC contends that when it received this hearings, ine witnesses at and submit briefs. Plaintiffs, already notice from it was six CURE Neither nor the Romoland School Dis- months into construction and had committed trict, any nor of the other that did power plant project. $400 million to the status, actively not have participat- intervenor claims part of the CAA. When Plaintiffs’ violations as distinct claims alleged NSR dismissed, SCAQMD all, against con- IEEC were complaint under the CAA. action, motions. against yet dispositive had not filed four causes of two tained However, a “no- and the air district did submit allegedly for the invalid offsets IEEC on levels, position” tice of to the district court against and two excessive emissions it permit August stating agreed that SCAQMD granting IEEC jurisdictional argument and would two violations. The IEEC’s that allowed for those injunc- argument that into a declaratory incorporating and complaint sought summary judgment motion. penalties relief as well as civil from tive litigation defendants and costs. both developments, to Responding these Plaintiffs moved on October 10 for volun- suit, Plaintiffs filing Within a month of tary remaining dismissal of their two injunction halt preliminary for a moved the air Feder- against claims district under plant until power construction of 41(a)(2), al Rule of Civil Procedure assert- comply IEEC’s was modified ing granting in their motion that “[i]n provisions. with the CAA On motion to dismiss Plaintiffs’ Third IEEC’s 12, 2006, IEEC moved to dismiss the June and Fourth Causes of Action without leave it for against two causes of action failure jurisdic- ... Judge to amend Lew made a a claim Federal Rule of state under Civil 12(b)(6). tional decision that is determinative of 14, 2006, August Procedure On Plaintiffs’ entire action.” Plaintiffs also hearing, Judge District Lew after brief remaining out that “the pointed defendants injunc- preliminary denied the motion for a action have stated their intention to tion, injunction fac- concluding “the dispositive file a motion that asserts some tors, is, the likelihood of success on jurisdictional arguments same irreparable harm and the merits IEEC made its motion [to dismiss]” hardships,” favored the defen- balance Judge concluded that Lew’s rul- “[b]ecause In a written order entered on Au- dants. applies is now the ‘law of the case’ that gust granted the district court also defendants, equally remaining vol- IEEC’s motion to dismiss the two causes untary of the remaining claims of action it with and stat- purposes gaining judgment for the grant- that leave to amend not be ed would allowing appeal serves econo- ed. my.” Finally, Plaintiffs that the air stated Although ruling neither the oral nor the oppose voluntary did not dis- specified written order of the district court hearing missal and thus that a on the Rule the dismissal of Plaintiffs’ claims necessary. 41 motion was not a lack against IEEC was based on Guilford, Judge On October District jurisdiction, the matter order did remaining to whom the Plaintiffs’ claims was state the dismissal “[based on] the air district had been trans- motion the reasons set forth IEEC’s 20, granted on September ferred vol- papers sup- dismiss and the submitted *9 untary dismissal motion. The order That motion port sup- thereof....” and signed by Judge Guilford and entered on contended, porting had documentation read, in entirety, the docket its as follows: among things, that the district court 18, 2006, August Judge lacked over Plaintiffs’ claims On Lew entered challenging dismissing because Plaintiffs were a Title an order Plaintiffs’ Third and of lack V and so were limited to the mech- Fourth Causes Action for of sub- judicial ject jurisdiction. provided anisms for review that matter Court
747
hereby grants
unopposed ap-
Plaintiffs’
II
voluntary
dismissal.
IT IS
plication
Except
limited circumstances
SO ORDERED.
currently
issue, parties may only
not
at
from,
appeal
appellate
and
only
courts
7,
On
Plaintiffs filed a Notice
November
jurisdiction over,
have
“final decisions of
(“NOA”)
Appeal
that listed both IEEC
of
district courts.” See 28 U.S.C.
SCAQMD as defendants and included
and
context,
In this
a “final decision” is one
parties
both
on the service list. The NOA
litigation
“ends the
on the merits and
judgment appealed
listed the
from as the
nothing
leaves
for the court
to do but
voluntary
12
approved
October
“Court
dis-
judgment....”
execute the
Coopers &
missal” and stated that Plaintiffs were also
467,
Lybrand
Livesay,
463,
v.
437 U.S.
appealing “interlocutory
gave
orders that
(1978) (internal
2454,
S.Ct.
SCAQMD,
together,
relating
taken
are not
defendant,
within
meaning
pursue
of 28 U.S.C.
1291 same
so that she could
the
appealable.
appeal
partial summary judg
thus not
Federal
an
and are
plaintiffs
Rule of
Procedure
allows
ment.
are not that Plaintiffs failed to Ill take certain steps administrative such as petitioning object the EPA to to IEEC’s jurisdictional argument first raised permit failure, and that because of this dismiss, in IEEC’s motion to and reiterat- ripe their claims are not review ed in both defendants’ briefs and at oral court; in the district rather Defendants argument, has been misconstrued are contending type challenge a claim throughout Plaintiffs as bringing these are attack on they “failed exhaust administrative —an duly permit issued as inconsistent with remedies” or contention Title V components NSR-related of a SIP —can I, part the CAA “revoked” Title of the brought never federal district court containing pre- CAA the NSR and other § permit under U.S.C. 7604 when that Instead, requirements. construction what pursuant to Title To evalu- was issued V. asserting the defendants are is that be- jurisdictional challenge, we ate this must air cause the district has elected to incor- (1) questions: answer two distinct federal, porate regula- all state and local matter, merged factual the air has regarding pollution, including tions air including preconstruction requirements, its requirements applicable, of NSR where those for sources of nonattainment new permitting process into a consolidated areas, pollutants in nonattainment into a V, all facilities to Title and because comprehensive permitting scheme under com- challenging Plaintiffs are IEEC’s (2) V; so, Title if is it the umbrella of pliance permit with the terms of its but legal consequence arrange- of such an asserting permit are rather that the itself fo- ment that the citizen suit only violates District Rule CAA, 7604, may rums in which Plaintiffs have not be used could U.S.C. brought challenge validity of such a consoli- challenge to IEEC’s us, panel maining jurisdictional question in this case
Like the in Concha before we de- question cline to reach the of what effect this prevent will further consideration of this ac- determination would have in the district by a court in event. tion federal district court, given disposition that our of the re- ting programs dated under SIP re- under Title V “shall estab- quirements? procedures prioritize lish reasonable approval disapproval permit ap- [of
A plications] applications in the case of or modification under the ap- construction V, drafting Congress Title intended plicable requirements of this Act.” impose requirement to obtain an JpO 7661b(c). See also C.F.R. operating permit range pollu- on a wide *14 70.7(a)(3) (similar § provision reg- in EPA sources, including tion those sources that setting out minimum ulations standard already required gain permit were a permitting programs). state Title V beginning pursuant before construction regulations give These other indications § provi- 42 U.S.C. the CAA’s NSR program that for purposes sion for new or modified emission sources administra- tion, in nonattainment areas. This intended permitting requirements may Title V scope program of the Title V is made overlap aspects of NSR and other 7661a(a), § in 42 explicit U.S.C. which re- pre-existing programs. example, For one quires “any required ... to have a source regulatory provision a establishes deadline I,” ... D permit under Part of Title by required which ... “sources have a ... in program, operate compli- NSR “to permit preconstruction under the review by a permit permitting ance with issued program approved applicable into the authority under this title.” The substan- implementation plan part [state] under requirements operating permit tive of an ... D of the Act a complete ap- shall file under encompass require- Title V also plication to permit,” [Title obtain Y] imposed by ments NSR and other Title I except an existing per- “[w]here [Title Y] programs, Congress specified prohibit mit would such construction or permit issued under this title shall “[e]ach change operation, [in case] include enforceable emission limitations permit source must obtain a revision be- ... and standards and such other condi- commencing operation.” fore 40 C.F.R. necessary compli- tions as are to assure 70.5(a)(1)(h). § Another defines applicable requirements ance with of this permit the term “administrative amend- Act, including requirements ap- include, among ment” to things, “a plicable implementation plan,” [state] permit [incorporates revision which, district, within the air include the requirements into the [Title Y] requirements NSR of District Rule 1308. preconstruction permits from review au- 7661c(a). § See U.S.C. What sets the EPA-approved thorized under an pro- preconstruction requirements of NSR gram” such as a SIP. 40 C.F.R. V, definition, apart from Title is their 70.7(d)(l)(v). timing, “[njothing shall [Title V] applicable require- construed to alter the strongest Yet far the evidence of ments of Act this be obtained preconstruc- federal intent to consolidate construction or modification.” 42 before permitting requirements tion and Title V added). 7661a(a) (emphasis Register comes from the Federal notice adoption which EPA announced the final To reconcile requirements Title V’s I, implementing regulations its for Title V. permit during operation with Title In a in that requirement Part D’s that a section notice entitled “Per- permit be Relationship,” agency obtained before construction or modifica- ex- mit/SIP tion, Congress provided permit- that state plained: requirements pre-construction permit the basis for demon- for a
The remains SIP Act, attainment and under Title I of the federal Air strating ensuring Clean national ambient air Regulation maintenance of the District XIII —New Re- Source (NAAQS). per- view, or District Rule quality standards 2005—New Source implements collects and program Despite mit Review for RECLAIM.” the use in the SIP requirements “pre-construction permit” contained of the term rule, permittee. applicable particular provisions the cited district NSR incorporate “pre-construction must emission nowhere refer to a permits per- Since requirements speak and other of mit” of “permits limitations but instead to con- SIP, struct,” all provisions granted SIP which are not to be unless will be defined and particular permit applicant complies source with emis- a single requirements. collected into document. sion limitation and offset 1303(b). See, 1303(a)(1), Rule e.g., District Another section Fed.Reg. at 32258. turn, *15 up the rules make District Re- heading under “New Source Regulation governing permits II to con- Relationship” is instructive. V view/Title contain to Title repeated struct references It states: CAA, V of the such as the statement today’s final rule State and local Under approval list of deadlines for or denial of option, authorities have the permitting permits “permit construction revisions mandate, require- integrate but not a to for Title shall V facilities follow the timeta- during preconstruc- ments determined permit Regula- bles for action” set forth in required with those under tion review XXX, implement- tion which contains rules con- integration title would be V. Such program. the district’s Title V Rule previously imple- with the stated sistent 210(d)(3). Reg- Other cross-references to goals combining programs mentation regarding ulation XXX occur in Rule 204 building programs on State existing permits of construction written conditions already accom- typically which have 212, and in Rule contains the re- integration at plished such State quirements public notice and comment above, in- if NSR is level. As discussed regarding permits to construct. See Rule and com- tegrated procedural 212(c)(3). 212(c)(1), contained pliance-related requirements (in- 70.6, 70.7, §§ and 70.8 [40 C.F.R.] emphasis operating per- on Despite its EPA affect- cluding opportunity for mits, similarly replete Title V is review), existing per- ed an title V State permits references to both NSR and to administratively mit to can be revised In a to the federal parallel construct. integrated reflect the results of the above, Rule regulations discussed District process. NSR 3000(b)(1)(D) defines the term “adminis- “any to include permit trative revision” Id. at 32259. to ... issue a permit Title V revision Analysis permitting of the air district’s any equip- permit operate to that it taken rules leaves little doubt has previously permit issued a Title V ... advantage “option integrate of this Register The Federal to construct....” ... with ... Title preconstruction review ap- EPA interim granted notice in which rule, Rule requirements. V” One district SCAQMD’s proval program Title V 3003(h), termi- creates some confusion of significance provision: of this explains nology when it states that submittal “[t]he Enhanced New Source Review. South complete permit application of a Title V permit program provides any person not relieve Coast’s title V shall review, Construct, preconstruction an ment Permits granted for enhanced was optional process that allows sources to EPA pursuant submitted to for its review satisfy both new source review and title 3003(j). to Rule We therefore conclude permit requirements modification at V requirements that while all substantive Any pro- the same time. modification preconstruction place review remain in pursuant cessed Coast’s en- South district, procedural the air as a matter the preconstruction hanced review proce- permit application district’s various pro- may incorporated dures into the title potential cesses for emitters to Ti- permit V administrative single tle have been consolidated into a V amendment. proce- These enhanced system, comprehensive auspices under the undergo dures obviate the need to two V, of Title and IEEC’s V RECLAIM/Title notice, applications, public Facility proposed Permit for its Romoland processes for the same issuance/revision power plant pursuant was issued to this (See 3000(b)(1)(D).) change. [Rule] system. consolidated Fed.Reg. (August 1996). explicit Another district rule is B degree about the to which the air district permits Title are V no means merged has Title scheme permitting its V wholly insulated from the CAA’s citizen source-specific permits with the to con- provision. contrary, suit To the when the struct discussed in Rule “A 1303: written *16 V, CAA was amended in 1990 to add Title construct, authorization to part issued as provision the citizen suit was also amended facility of a Title permit, V shall be to add to the definition of “emission stan permit deemed a to for pur- construct limitation,” alleged dard or an violation of poses regula- of all other District and rules any person bring authorizes to 3007(a)(2). tions.” Rule action, standard, “any enforcement very permitting process at issue limitation, or schedule established under this case demonstrates the extent of the any V, permit pursuant issued to title integration. Although apply IEEC did for any permit condition, term or and separate a Permit to Construct for each requirement permit to obtain a aas condi piece of emitting equipment facility at its 7604(f)(4). of operations.” § tion 42 U.S.C. applying well as for a Title andV words, In other if IEEC had violated a facility permit, only permit RECLAIM one term or condition of permit the air was by SCAQMD: issued to IEEC a “RE- it, district issued to if it sought or had to Facility V Permit” which in- CLAIM/Title begin building and operating power a your cluded list of at “emission sources plant in without obtaining per Romoland a facility that have been issued Permit to SCAQMD’s mit merged under Title V/con Operate or a Permit to Construct....” permit system, struction either of those only Not all were of IEEC’s alleged violations would have grounds been document, permits contained in a single for a citizen suit district court under 42 that permit subjected but was also to However, § U.S.C. 7604. Plaintiffs’ chal single public process review and comment lenge fits into neither of categories. these combining the notice and comment re- Instead, Plaintiffs are quirements charging that IEEC concerning permits of Rule 212 complying to with the permit construct and Rule terms of its regarding 3006 Title Moreover, permits. V but those terms are themselves a RECLAIMTTi- Permit, Facility including CAA, tle V specifically, sections D violation of the the fed Hand with their of pieces equip- erally lists provisions enforceable SIP regard-
755 court, Rule Be- our if found District and the same ing NSR party of a challenged part petitioned these terms are another who had EPA cause 7661d(b)(2) V, § 42 pursuant issued under Title we must con- U.S.C. judicial petition appealed Title V’s administrative and whose was denied also sider court, challenging permit. that denial to our then two provisions review different require persons objecting panels of this court could provisions Those be simultaneous- ly of a Title if to the issuance V confronted with similar not identical Administrator,” challenges “petition provide permit, perhaps to the same judicial regarding petitions brought by party. review such even the same Such a system entirely in the courts of under U.S.C. would be unworkable § through why citizen suits underscores Plaintiffs are incorrect § they § courts via 7604. 42 contend that 42 U.S.C. when U.S.C. 7661d 7661d(b)(2). § § The text of which created “an additional” and not a su- regionally appli- perseding allows for direct review enforcement scheme for chal- geographically validity EPA action in the lenges cable under the CAA of appeals, permits. circuit court of also Title appropriate V re- makes clear this form sup- The two cases cited Plaintiffs to “[ajction exclusive, stating view is of port argument their that allegedly invalid respect to which the Administrator permits may challenged directly review could have been obtained under through the provision, CAA citizen suit judi- not be [this section] shall Canyon Grand Trust v. Tucson Electric in civil or criminal proceedings cial review Power Co. and Communities a Better 7607(b)(1)- for enforcement.” U.S.C. Co., Refining Environment v. Cenco are (2) added). (emphasis inapposite. Canyon Trust Grand involved challenge This “use it or lose it” under 7604 to a *17 7607(b)(2) permit plaintiffs § not enforce- that U.S.C. does bar contended had only lapsed begin where an individual when the defendant did not proceedings ment date, advantage opportunity by construction a certain in violation has taken regulation provided EPA then a federal petition the Administrator and already-is- appeals petition the denial of such a to the the “automatic cancellation of court; instead, judicial permits” if applicable appellate sued construction construction deadline. 391 through review civil or criminal enforce- did commence Cir.2004). (9th 979, reg- This proceedings ment is unavailable whenever F.3d 984-85 imposed implicit ulation an condition an individual “could have obtained” thus Thus, by permit in 42 on the defendant’s with which the creating such review. 7661d(b)(2) judicial Canyon plaintiffs alleged § the defen- U.S.C. an avenue of Grand comply; by 42 in that case did not passes through review that U.S.C. dants contrast, effectively acknowledge § here Plaintiffs Congress foreclosed compliant with all alternative avenue of citizen suit enforce- IEEC § through permit argue ment 42 terms of its but that those U.S.C. terms violate the CAA. § interpretation Our of 7607 as it relates Cenco, strengthened by implica- plaintiffs § one of the this 7661d is action, If for a Better Environ- proposed tions of Plaintiffs’ alternative. Communities (“CBE”), challenged, under the citi- bring Plaintiffs were able to this action provision, SCAQMD’s decision to federal district court under the citizen suit zen suit Permit provision appealed previously expired and that action was to transfer a 756 requirements of Title I preconstruction a refinery permittee an oil to new
Operate requirements of Title formerly permitting with the to modernize the proposed who is issued under that inte- permit V and refinery. F.Supp.2d 180 non-operational (C.D.Cal.2001). grated system, a claim that the terms of 1069-70, CBE other are inconsistent with including violations alleged various SIP may Air Act requirements of the Clean requirements before apply failure to NSR only brought in accordance with be and the reactivation allowing construction procedures authorized judicial review expired per- previously and transfer of Act, § U.S.C. 7661- Title V of was a violation mit, contended which CBE 7661f, brought in federal may not be operating permits 209 that District Rule court under the Act’s citizen suit Id. at 1072. The are nontransferable. § 7604. Because provision, U.S.C. challenged Cenco decisions permitting in an V, brought inap- Plaintiffs’ action was and when the Title did not involve propriate inapplicable forum under an of 42 U.S.C. defendant raised issue untimely avenue § 7604 as a CAA supplanting § 7661d ju- review, court was without protest, the district the Cenco mechanism for it. risdiction to hear responded: court administrative because federal [J]ust IV remedy objecting to the is available reasons, does subchapter of a Y foregoing issuance For the we conclude remedy legal under appeal, not mean that that we have over § unavailable for defendant’s 7604 is and we affirm the district court’s dismissal comply V-relat- [non-Title failure of Plaintiffs’ claims Al- permitting requirements. request judi- SIP grant ed] IEEC. We IEEC’s may required to even- though Cenco cial materials relevant notice of tually acquire subchapter permits, V jurisdictional question in this dispositive challenge fact that could mere on that case. Because of our conclusion at that time permits jurisdictional such under 7661d we to reach question, decline preclude plaintiffs does not from attack- claims the merits of Plaintiffs’ under the broad permits now preliminary IEEC or their motion for a (f)(4) 7604]; language of injunction. [of subsection further that the dis- We hold *18 indeed, Air Act the Clean nowhere trict court not entertain further should wait for the plaintiffs states that must proceedings in this case or in a future subchapter permits of before issuance Y to seeking action revive Plaintiffs’ claims they existing can sue on violations pursuant air district SIP. 2006 dismissal of those claims October prejudice, because that court lacks without at n. Id. 1081 6. subject matter over such Cenco, coming in from a language This claims under 28 U.S.C. 1331. air involving case the same AFFIRMED. many at of the same district rules issue here, are limits aptly illustrates that there WALLACE, Judge, concurring Circuit today. opine holding our We do in the result: scope or upon general contours agree appeal 42 I that this should be dis- citizen suit missed, only that or local but for a different reason. Our We hold where state pollution integrated precedents plaintiffs’ air dictate that the vol- control district has
757
London,
In
that a
to Federal Rule
Concha v.
we held
untary
pursuant
dismissal
41(a)(2) cannot consti-
Procedure
of Civil
“voluntary dismissal without
judgment
final
because
appealable
tute an
prejudice
ordinarily
judgment
is
not a final
prejudice. The
the dismissal was without
plaintiff may appeal.”
from
however,
majority,
holds that the dismissal
(9th Cir.1995)
1493,1507
(emphasis
F.3d
judg-
constitute a final
order can
fact
original), citing Coursen v. A.H. Robins
under a
purposes
appeal
Co., Inc.,
1329, 1342, corrected,
764 F.2d
finality.” Al-
evaluation of
“pragmatic
(9th Cir.1985).
The default rule in Concha judgments nal purposes for the appeal. applies therefore to this case. Under this held, As any exceptions we have to our precedent, voluntary well-established dis- bright-line jurisdictional established rules prejudice, missals without like the dismiss- should narrowly. be construed Am. Cf. here, al at issue appealable are not Corp., States Ins. Co. v. Dastar 318 F.3d judgments, and this court lacks (9th Cir.2003) (holding 888-89 that the judgments review such on appeal. exception James narrowly must be con “[a]ny strued because interpretation
II. ... would undermine [Federal Rule of majority 54(b) acknowledges that Concha Procedure] Civil and add uncertainty *20 precludes voluntary rule”). dismissals judgment Thus, without to the final prejudice being from appealable final judg- accordance with specific the facts ad 748.) (Majority Op. Concha, ments. majority The dressed in I conclude that a court (9th Cir.1989) (“[O]ne pri voluntary dismissal may party’s construe underlying judg the final mary purposes prejudice one with prejudice to be without rule the efficient use of (1) ment question” [is] that there is “no only where resources”). to be “intended” the dismissal party the (2) has “ab party that prejudice, with reasons, For these I would not follow a vol gain” filing to from solutely nothing majority’s approach construing the the prejudice. Con untary dismissal without plaintiffs’ voluntary dismissal to be one cha, at 1508-09. 62 F.3d exception prejudice. expand with To the beyond specific the recognized Concha make in this case cannot plaintiffs case, majority facts of that as the does First, showings. as de- required these here, of an all-too flexi- adoption risks the above, demonstrates the record scribed jurisdiction, one that ble test federal in fact had no intention plaintiffs the that Potter would mimic former Justice Stew- prejudice. a dismissal with entering I it pornography: definition of know art’s change counsel to by opposing asked When I it. is diametri- approach when see This to one dismissal without-prejudice their cally opposed jurisprudence, to our federal flatly counsel re- prejudice, plaintiffs’ finality requires which to be clear fused. Wright, on the record. 15A identifiable Second, that it is not at all clear Cooper, Miller & Federal Practice and nothing gain” to “absolutely had plaintiffs (1992) (“Al- at 462 Procedure without-prejudice dismissal. filing from though appealabil- well-established rules of fact, from their logical inference cause an action to be ity might at times such a dismissal is refusal enter unjustly, slowly, expen- determined obtain they advantage some perceived sively, they great have nonetheless the More prejudice. without ing a dismissal forestalling delay, harass- virtue of over, plaintiffs argue although ment, duplication that could expense, and appeal pre would adverse decision on appeals”). multiple result from or ill-timed against the air clude their dismissed claims Moreover, multiple had av- district, from nothing prevent would them they ap- have through which could enues claims and seek refiling their air district orders entered pealed the non-final majority cites ing a different result. The obviously, they could district court. Most argu plaintiffs’ representations at oral simply specified that their dismissal have relitigate they do not seek to adhering to thereby prejudice, was with that there is little these claims as evidence rules of federal this court’s established piecemeal litigation. possibility of such Or, preju- if a dismissal with jurisdiction. 751.) However, point (Maj. Op. the whole have unpalatable, they could dice was jurisdictional rules is having bright-line 54(b) severance, a Rule moved for appeal and effort of expense to avoid the otherwise non- party permits have a rule place. the first We cannot has after the district court final orders ap are unable to determine parties where required determination made the jurisdiction based on a facial exami pellate delay. Fed. just reason for there is no record, go but must instead nation of (2008). 54(b) R.Civ.P. briefs and through writing the trouble of an unfortunate and suggest I we take guard preparing argument for oral we fail to counter-productive turn when last-minute de possibility as nec- jurisdiction. Cheng accept v. termination Serv., jurisdiction. We do essary appellate F.2d Internal Revenue Comm’r *21 good lawyers not need to remind to meet standard, and improve we do not
appellate process by crafting rules to make
up incompetent. for those who are Feder- jurisdiction appellate
al is based on statu- is, view,
tory requirements; my it
misguided stray for us to from specific, (dismissal
easily requirements discoverable prejudice) to those so indefinite that (dismissal
guesswork required without it).
prejudice- I did not mean —-but
Therefore, I concur the result of the
majority, but for the reason our
court’s has not been demon-
strated.
Gurgen KHUNAVERDIANTS,
Petitioner,
v. MUKASEY, Attorney
Michael B.
General, Respondent.
No. 07-70145.
United Appeals, States Court of
Ninth Circuit.
Argued Sept. and Submitted 2008.
Filed Nov.