Assoc. of American Railroads v. Randolph
Opinion
ASSOCIATION OF AMERICAN No. 2:23-cv-01154-DJC-JDP RAILROADS and AMERICAN SHORT LINE ASSOCIATION, Plaintiffs, v. LIANE M. RANDOLPH, in her official capacity as Chair of the California Air Resources Board; STEVEN S. CLIFF, in his official capacity as Executive Officer of the California Air Resources Board; and ROB BONTA, in his official capacity as Attorney General of the State of California, Defendants, and EAST YARD COMMUNITIES FOR COLLECTIVE FOR ENVIRONMENTAL JUSTICE, and SIERRA CLUB, Defendant-Intervenors.
Plaintiffs, two associations of railroads, seek to enjoin a sweeping emissions
regulation California recently adopted for railroads operating within California. This
regulation falls within overlapping federal preemptive schemes: the Interstate
Commerce Commission Termination Act (“ICCTA”) and the Clean Air Act (“CAA”).
Congress maintains primary authority to regulate the railroad industry under the
ICCTA, which broadly preempts state regulatory authority over railroad operations.
Congress also maintains authority to regulate railroad emissions under the CAA,
which establishes a comprehensive program for controlling and improving the
nation’s air quality through both state and federal regulation. As is relevant here,
Section 209 of the CAA1 preempts state regulation of emissions for new locomotives.
However, Section 209 also preserves a role for California to regulate emissions for
non-new locomotives subject to authorization by the Environmental Protection
Agency (“EPA”). Emissions regulations for non-new locomotives are preempted until
California receives such authorization.
Plaintiffs have filed a Motion for Summary Judgment (ECF No. 29) seeking a
ruling that California’s regulation is preempted by the ICCTA. California has
submitted their regulation to the EPA for authorization under Section 209, but the EPA
has not yet ruled on that authorization request. The question before the Court is
whether the Court should stay ruling on this Motion until the EPA has acted under the
primary jurisdiction doctrine.
Having considered the Parties’ briefing and arguments, the Court finds that a
stay is warranted. California has not previously sought authorization from the EPA to
regulate emissions for non-new locomotives. Thus, this is the first time the EPA will
consider both which parts of the regulation require its authorization under Section
209,2 and, if authorization is required, whether to grant such authorization. This
1 42 U.S.C. § 7543. 2 As explained in further detail below, the EPA must authorize emissions standards, requirements, and accompanying enforcement procedures for non-new locomotives, but need not authorize in-use requirements. decision by the EPA will greatly inform the Court’s ruling on Plaintiffs’ Motion. If the
EPA denies authorization as to any part of the regulation that requires approval, then
those parts will be preempted by the CAA, and the Court need not consider whether
they are also preempted by the ICCTA. However, if the EPA grants authorization as to
any part of the regulation that requires approval, then the Court will need to
harmonize that authorization under the CAA with the ICCTA to determine if such
approval shields those parts of the regulation from ICCTA preemption. Given the
uncertainty both as to the scope of EPA authorization required, as well as the
likelihood of authorization, the Court finds that a stay is required so the Court may
have the benefit of the EPA’s decision before proceeding further.
While the Court is cognizant that imposing this stay may result in some
prejudice to Plaintiffs, the Court finds that ruling on Plaintiffs’ Motion now would be
premature and would risk disrupting the regulatory scheme that Congress has put in
place for regulating locomotives and their emissions. Accordingly, the Court will
STAY this matter pending a ruling on California’s Section 209 authorization request.
I. Regulation of Locomotive Emissions under the CAA
Congress enacted the CAA, 42 U.S.C. § 7401, et seq., in 1963 “to protect and
enhance the quality of the Nation’s air resources so as to promote the public health
and welfare and the productive capacity of its population.” Id. § 7401(b)(1).
Recognizing that the law was “work[ing] poorly,” S. Rep. No. 101-228, at 128 (1989),
Congress passed the Clean Air Act Amendments of 1990, creating an
“aggressive regime of new control requirements” to address air pollution problems.
Blue Ridge Env’t Def. League v. Pruitt, 261 F. Supp. 3d 53, 56 (D.D.C. 2017) (quoting
Cal. Cmtys. Against Toxics v. Pruitt, 241 F. Supp. 3d 199, 200 (D.D.C. 2017)).
“[D]esigned to safeguard our precious air resources,” N.Y. Pub. Int. Rsch. Grp. v.
Whitman, 321 F.3d 316, 319 (2d Cir. 2003) (quoting Connecticut v. EPA, 696 F.2d 147,
151 (2d Cir. 1982)), this statutory scheme “regulates pollution-generating emissions from both stationary sources, such as factories and powerplants, and moving sources,
such as cars, trucks, and aircrafts,” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 308
(2014). “It is an intricate regulatory regime intended to ‘protect and enhance the
quality of the Nation’s air resources . . . .’” N.Y. Pub. Int. Rsch. Grp., 321 F.3d at 319–20
(quoting 42 U.S.C. § 7401(b)(1)). Consistent with that mandate, the EPA was
established in 1970 to implement programs to regulate pollution from both mobile
and stationary sources under the CAA and other related statutes. See Friends of the
Earth v. Carey, 535 F.2d 165, 168-69 (2d Cir. 1976).
Under the CAA, Congress has expressly preempted the states from regulating
emissions standards for “new” non-road vehicles and engines, instead deciding such
regulation falls solely within the power of the EPA. 42 U.S.C. § 7543(e)(1). However,
states, or more specifically, California,3 may enact “standards [or] other requirements”
and “accompanying enforcement procedures” for non-new non-road vehicles such as
locomotives.4 Id. § 7543(e)(2)(A). Such standards, requirements, and accompanying
enforcement procedures are preempted, and thus unenforceable, unless and until the
EPA reviews California’s proposed regulation and grants authorization. Id.; see also
Engine Mfrs. Ass’n v. EPA (“EMA”), 88 F.3d 1075, 1087–93 (D.C. Cir. 1996) (rejecting
interpretation limiting preemption to new non-road vehicles). However, states may
regulate “in-use requirements”—e.g., limits on the mode or use of non-road vehicles—
without the EPA’s approval. Id. at 1094 (upholding “EPA’s interpretation that § 213(d)
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ASSOCIATION OF AMERICAN No. 2:23-cv-01154-DJC-JDP RAILROADS and AMERICAN SHORT LINE ASSOCIATION, Plaintiffs, v. LIANE M. RANDOLPH, in her official capacity as Chair of the California Air Resources Board; STEVEN S. CLIFF, in his official capacity as Executive Officer of the California Air Resources Board; and ROB BONTA, in his official capacity as Attorney General of the State of California, Defendants, and EAST YARD COMMUNITIES FOR COLLECTIVE FOR ENVIRONMENTAL JUSTICE, and SIERRA CLUB, Defendant-Intervenors.
Plaintiffs, two associations of railroads, seek to enjoin a sweeping emissions
regulation California recently adopted for railroads operating within California. This
regulation falls within overlapping federal preemptive schemes: the Interstate
Commerce Commission Termination Act (“ICCTA”) and the Clean Air Act (“CAA”).
Congress maintains primary authority to regulate the railroad industry under the
ICCTA, which broadly preempts state regulatory authority over railroad operations.
Congress also maintains authority to regulate railroad emissions under the CAA,
which establishes a comprehensive program for controlling and improving the
nation’s air quality through both state and federal regulation. As is relevant here,
Section 209 of the CAA1 preempts state regulation of emissions for new locomotives.
However, Section 209 also preserves a role for California to regulate emissions for
non-new locomotives subject to authorization by the Environmental Protection
Agency (“EPA”). Emissions regulations for non-new locomotives are preempted until
California receives such authorization.
Plaintiffs have filed a Motion for Summary Judgment (ECF No. 29) seeking a
ruling that California’s regulation is preempted by the ICCTA. California has
submitted their regulation to the EPA for authorization under Section 209, but the EPA
has not yet ruled on that authorization request. The question before the Court is
whether the Court should stay ruling on this Motion until the EPA has acted under the
primary jurisdiction doctrine.
Having considered the Parties’ briefing and arguments, the Court finds that a
stay is warranted. California has not previously sought authorization from the EPA to
regulate emissions for non-new locomotives. Thus, this is the first time the EPA will
consider both which parts of the regulation require its authorization under Section
209,2 and, if authorization is required, whether to grant such authorization. This
1 42 U.S.C. § 7543. 2 As explained in further detail below, the EPA must authorize emissions standards, requirements, and accompanying enforcement procedures for non-new locomotives, but need not authorize in-use requirements. decision by the EPA will greatly inform the Court’s ruling on Plaintiffs’ Motion. If the
EPA denies authorization as to any part of the regulation that requires approval, then
those parts will be preempted by the CAA, and the Court need not consider whether
they are also preempted by the ICCTA. However, if the EPA grants authorization as to
any part of the regulation that requires approval, then the Court will need to
harmonize that authorization under the CAA with the ICCTA to determine if such
approval shields those parts of the regulation from ICCTA preemption. Given the
uncertainty both as to the scope of EPA authorization required, as well as the
likelihood of authorization, the Court finds that a stay is required so the Court may
have the benefit of the EPA’s decision before proceeding further.
While the Court is cognizant that imposing this stay may result in some
prejudice to Plaintiffs, the Court finds that ruling on Plaintiffs’ Motion now would be
premature and would risk disrupting the regulatory scheme that Congress has put in
place for regulating locomotives and their emissions. Accordingly, the Court will
STAY this matter pending a ruling on California’s Section 209 authorization request.
I. Regulation of Locomotive Emissions under the CAA
Congress enacted the CAA, 42 U.S.C. § 7401, et seq., in 1963 “to protect and
enhance the quality of the Nation’s air resources so as to promote the public health
and welfare and the productive capacity of its population.” Id. § 7401(b)(1).
Recognizing that the law was “work[ing] poorly,” S. Rep. No. 101-228, at 128 (1989),
Congress passed the Clean Air Act Amendments of 1990, creating an
“aggressive regime of new control requirements” to address air pollution problems.
Blue Ridge Env’t Def. League v. Pruitt, 261 F. Supp. 3d 53, 56 (D.D.C. 2017) (quoting
Cal. Cmtys. Against Toxics v. Pruitt, 241 F. Supp. 3d 199, 200 (D.D.C. 2017)).
“[D]esigned to safeguard our precious air resources,” N.Y. Pub. Int. Rsch. Grp. v.
Whitman, 321 F.3d 316, 319 (2d Cir. 2003) (quoting Connecticut v. EPA, 696 F.2d 147,
151 (2d Cir. 1982)), this statutory scheme “regulates pollution-generating emissions from both stationary sources, such as factories and powerplants, and moving sources,
such as cars, trucks, and aircrafts,” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 308
(2014). “It is an intricate regulatory regime intended to ‘protect and enhance the
quality of the Nation’s air resources . . . .’” N.Y. Pub. Int. Rsch. Grp., 321 F.3d at 319–20
(quoting 42 U.S.C. § 7401(b)(1)). Consistent with that mandate, the EPA was
established in 1970 to implement programs to regulate pollution from both mobile
and stationary sources under the CAA and other related statutes. See Friends of the
Earth v. Carey, 535 F.2d 165, 168-69 (2d Cir. 1976).
Under the CAA, Congress has expressly preempted the states from regulating
emissions standards for “new” non-road vehicles and engines, instead deciding such
regulation falls solely within the power of the EPA. 42 U.S.C. § 7543(e)(1). However,
states, or more specifically, California,3 may enact “standards [or] other requirements”
and “accompanying enforcement procedures” for non-new non-road vehicles such as
locomotives.4 Id. § 7543(e)(2)(A). Such standards, requirements, and accompanying
enforcement procedures are preempted, and thus unenforceable, unless and until the
EPA reviews California’s proposed regulation and grants authorization. Id.; see also
Engine Mfrs. Ass’n v. EPA (“EMA”), 88 F.3d 1075, 1087–93 (D.C. Cir. 1996) (rejecting
interpretation limiting preemption to new non-road vehicles). However, states may
regulate “in-use requirements”—e.g., limits on the mode or use of non-road vehicles—
without the EPA’s approval. Id. at 1094 (upholding “EPA’s interpretation that § 213(d)
[(42 U.S.C. § 7547(d))] incorporates into the nonroad regime at least the reservation of
the states’ right to impose in-use regulations found in § 209(d)”); id. at 1082
(describing these regulations).
3 While all states may adopt emissions standards, requirements, and accompanying enforcement procedures for non-new non-road vehicles under 42 U.S.C. § 7543(e)(2), any such regulation must be proposed by California in the first instance and be authorized by the EPA. Id. Other states may adopt such regulations only to the extent “such standards and implementation and enforcement are identical, for the period concerned, to the California standards authorized by the Administrator under subparagraph (A) . . . .” Id. § 7543(e)(2)(B)(i). 4 Locomotives cease to be “new” when the earlier of two events occurs: (1) the locomotive’s equitable or legal title is transferred to an ultimate purchaser, or (2) the locomotive is placed into service (or back into service if the locomotive has been remanufactured). 40 C.F.R. § 1033.901. Under section 209(e)(2)(A) of the CAA (“Section 209(e)(2)(A)”), the EPA must
waive CAA preemption as to non-new locomotives5 absent at least one of three
findings. 42 U.S.C. § 7543(e)(2)(A). A Section 209(e)(2)(A) authorization proceeding
begins with a request from California that includes California’s determination that its
locomotive “standards will be, in the aggregate, at least as protective of public health
and welfare as applicable Federal standards.” Id. The EPA then considers California’s
request in a public proceeding. Id.; 40 C.F.R. § 1074.101(b). The CAA provides three
bases for denial: “(i) the determination of California is arbitrary and capricious,
(ii) California does not need such California standards to meet compelling and
extraordinary conditions, or (iii) California standards and accompanying enforcement
procedures are not consistent with this section.” 42 U.S.C. § 7543(e)(2)(A). When
considering the third prong, the EPA considers whether the regulation falls within the
scope of 42 U.S.C. § 7543(e)(1), and is thus ineligible for authorization, because it
regulates new locomotives. Id. § 7543(e)(2)(A); 88 Fed. Reg. 77,004, 77,007–08 (Nov.
8, 2023). If none of the three bases for denial are established, the EPA “shall” grant
authorization. See 42 U.S.C. § 7543(e)(2)(A).
Frequently, state regulations concerning emissions are ultimately submitted to
the EPA in a State Implementation Plan (“SIP”) to meet federal air quality standards.
SIP submittals must provide “necessary assurances that the State . . . is not prohibited
by any provision of Federal . . . law from carrying out” those regulations. 42 U.S.C.
§ 7410(a)(2)(E). Where EPA authorization is required under federal law before a state
may implement an element of its SIP, states typically submit the request for
authorization to the EPA first, and only include the element in its SIP after receiving the
authorization from the EPA. See, e.g., 81 Fed. Reg. 39,424, 39,430 (June 16, 2016)
(approving SIP submission because “EPA has issued waivers or authorization under
5 Although Section 209(e)(2)(A) applies broadly to non-new non-road vehicles, the Court will primarily discuss this section in relation to regulation of locomotives, and so will use locomotives interchangeably with non-road vehicles throughout. section 209 for all of the subject regulations”). Once approved, a SIP becomes federal
law. Comm. for a Better Arvin v. EPA, 786 F.3d 1169, 1174 (9th Cir. 2015).
II. California’s Locomotive Regulation
On April 27, 2023, the California Air Resources Board (“CARB”) adopted the “In-
Use Locomotive Regulation” (“Regulation”) to set emissions standards for locomotives
operating in California. (Plaintiffs’ Statement of Undisputed Facts (“Pls’ SUF”) (ECF No.
51-3) ¶ 1.) CARB submitted the final version of the Regulation to the California Office
of Administrative Law on September 15, 2023. (Id. ¶ 2.) The Regulation has four
primary components: (1) the Spending Account; (2) the In-Use Operational
Requirements; (3) the Idling Requirements; and (4) the Reporting and Recordkeeping
Requirements. There is also an Administrative Payment Provision.
Spending Account (§ 2478.46): By July 1, 2026, railroads must “establish a
Spending Account” into which they must make annual deposits “solely dedicated to
compliance with the Spending Account requirements.” § 2478.4(a)–(b). The amount
that a railroad must deposit is calculated based on its locomotive’s emissions in
California the previous calendar year. § 2478.4(f). Spending Account funds are
subject to purchase restrictions: they may be spent only to purchase, lease, or rent
clean locomotives; to convert dirtier locomotives into clean ones; to purchase, lease
or rent zero-emission equipment or infrastructure; or for zero-emission pilot projects
and demonstrations. § 2748.4(d).
In-Use Operational Requirements (§ 2478.5): Beginning in 2030, any
locomotive that is “23 years or older,” as determined by its original engine build date,
is banned from operating in California, unless the locomotive has not exceeded a
specified quantity of energy usage over its lifetime or exclusively operates in a zero-
emission configuration (“ZE Configuration”) within California. § 2478.5(a). The
Regulation also sets dates after which all locomotives with engines built after specified
6 The Regulation is codified at Cal. Code Regs. tit. 13, §§ 2478–2478.17. Unless otherwise noted, all citations of regulatory provisions refer to that title. years—2030 for many locomotives and 2035 for those that haul freight long distances—
must operate “in a ZE Configuration at all times while in California.” § 2478.5(b)–(c).
Idling Requirements (§ 2478.9): The Idling Requirements, which take effect
immediately, regulate several aspects of a locomotive’s function and maintenance.
The EPA has long required locomotive manufacturers to install automatic engine
stop/start (“AESS”) devices on new locomotives that shut down the engine “after no
more than 30 continuous minutes of idling.” 73 Fed. Reg. 25,098, 25,125 (May 6,
2008). The Regulation requires operators to keep these idling devices in working
condition. Specifically, the Regulation prohibits railroads from disabling an AESS
device unless necessary for maintenance and requires railroads to ensure the AESS
device is functional during locomotive operation, with an obligation to replace or
repair an inoperative AESS device within 30 days. § 2478.9(b)–(c). In addition, the
Regulation requires that locomotive operators “ensure an AESS equipped Locomotive
Engine is shut off no more than 30 minutes after the Locomotive becomes stationary”
(subject to narrow exceptions), § 2478.9(a), and “manually shut off” the engine “no
more than 30 minutes after the Locomotive becomes stationary” when an AESS device
is inoperative, § 2478.9(c)(2).
Reporting and Recordkeeping Requirements (§ 2478.11): Beginning July 1,
2026, locomotive operators must annually report a host of emissions information for
non-zero emissions locomotives, § 2478.11(b)(2), which are used to calculate
Spending Account deposits, § 2478.4(f); the “time, date, location, and duration of
each instance” an AESS-equipped locomotive “idled for longer than 30 minutes in
California,” § 2478.11(b)(3)(A); and an itemized list of the description and location of
each item purchased with the Spending Account, § 2478.11(c)(6).
Administrative Payment Provision (§ 2478.12): The Administrative Payment
Provision authorizes CARB to collect an annual payment of $175 per locomotive, with
certain limited exceptions. § 2478.12. The Administrative Payment provision is due
with the railroads’ submission of their annual emissions report. § 2478.12. III. Procedural History
The Regulation became final in October 2023. (Pls’ SUF ¶ 3.) On November 7,
2023, CARB submitted a Section 209(e)(2)(A) authorization request to the EPA. (Id.
¶ 4.) On February 27, 2024, the EPA issued its notice inviting public comment on
California’s authorization request. 89 Fed. Reg. 14,484, 14,486 (Feb. 27, 2024).
Comments were due April 22, 2024. Id. Defendants state that, while CARB has not
yet submitted the Regulation itself for approval into California’s SIP in light of the
pending EPA approval, a commitment to promulgate a regulation like the one at-issue
here was included in CARB’s 2022 State Strategy for the State Implementation Plan,
which was submitted for the EPA’s approval on February 22, 2023. (Dorsi Decl., Ex. 16
(ECF No. 52-16), at 1, 34; Dorsi Decl., Ex. 17 (ECF No. 52-17).)
Plaintiffs, who are associations representing both freight and passenger
railroads,7 filed their Amended Complaint on October 13, 2023, alleging: (1) the
ICCTA preempts the Regulation in its entirety; (2) the CAA preempts the Spending
Account and In-Use Operational Requirements; (3) the Locomotive Inspection Act
(“LIA”) preempts the Idling Requirements; and (4) the Regulation violates the Dormant
Commerce Clause. (Am. Compl. (ECF No. 18).)
On February 16, 2024, this Court dismissed all claims against the Spending
Account and In-Use Operational Requirements (which included dismissal of Plaintiffs’
CAA claim in its entirety) (Mot. Dismiss Order (“MTD Order”) (ECF No. 48) at 11); all
claims against “the locomotive equipment aspects” of the Idling Requirements (which
included dismissal of Plaintiffs’ LIA claim in its entirety) (id. at 14); and Plaintiffs’ facial
challenges under the ICCTA and the Dormant Commerce Clause (id. at 17, 19). The
Court did not dismiss Plaintiffs’ as-applied challenges under the ICCTA and the
Dormant Commerce Clause as to certain Idling Requirements—those that are “idling
7 Plaintiff AAR’s members include some of the largest (Class I) and some of the smallest (Class III) railroads in the country. (Pls’ SUF ¶¶ 5–8.) Plaintiff ASLRRA represents the interests of hundreds of Class II and Class III railroads. (Id. ¶¶ 19–22.) Both Plaintiffs have members who own or lease and operate locomotives within California. (Id. ¶¶ 7, 20.) limits” (id. at 14)—or as to the Reporting and Recordkeeping or Administrative
Payment Requirements (id. at 19–22).
Plaintiffs moved for summary judgment on November 24, 2023, seeking
judgment as to all four causes of action in their Amended Complaint. (Mot. Summ. J.
(“MSJ”) (ECF No. 29).) Given the Court’s subsequent dismissal of Plaintiffs’ CAA and
LIA claims, Plaintiffs’ motion is moot as to those claims. In addition, Plaintiffs have
withdrawn their motion for summary judgment as to their Dormant Commerce Clause
claim. (MSJ Reply and Opp’n Cross-MSJ (ECF No. 58) at 2 n.2.) Accordingly, Plaintiffs
seek summary judgment on their ICCTA claim only.
Defendants Liane M. Randolph, in her official capacity as Chair of CARB, Steven
S. Cliff, in his official capacity as Executive Officer of CARB, and Rob Bonta, in his
official capacity as Attorney General of the State of California, opposed Plaintiffs’
Motion on March 5, 2024. (Defs.’ Opp’n and Cross-MSJ (ECF No. 51).) Defendants
argued Plaintiffs lacked standing to challenge the Idling Requirements and sought
dismissal or stay of Plaintiffs’ ICCTA and Dormant Commerce Clause claims under the
primary jurisdiction doctrine. (Id.) Defendants also cross-moved for summary
judgment as to Plaintiffs’ Dormant Commerce Clause claim. (Id.) Finally, Defendants
moved to deny or defer summary judgment under Federal Rule of Civil Procedure
56(d), arguing they required discovery on (1) Plaintiffs’ standing to challenge the
Idling Requirements, (2) Plaintiffs’ basis for their Dormant Commerce Clause claim,
and (3) the scope of relief for Plaintiffs’ ICCTA claim. (Rule 56(d) Mot. (ECF No. 53).)
Defendant-Intervenors East Yard Communities for Environmental Justice,
People’s Collective for Environmental Justice, and Sierra Club separately opposed
Plaintiffs’ Motion on March 5, 2024. (Def.-Intervenors’ Opp’n (ECF No. 49).)
The Court held a hearing on April 25, 2024, with Brian Burgess and Hayes Hyde
appearing for Plaintiffs, M. Elaine Meckenstock and Michael Dorsi appearing for
Defendants, and Yasmine Agelidis appearing for Defendant-Intervenors. The matter
was submitted.
I. Standing to Challenge the Idling Requirements
The Idling Requirements regulate both maintenance of locomotive equipment
and operation of locomotives. (MTD Order at 12.) This Court previously held Plaintiffs
lacked standing to challenge portions of the Idling Requirements related to
equipment maintenance because Plaintiffs failed to allege any pocketbook injury as to
those portions of the Regulation—i.e., “what operational and training costs their
members already incur to maintain AESS equipment, and what additional costs they
will incur comply with the Regulation.” (Id. at 14.) However, the Court found Plaintiffs’
allegations supported standing as to those portions of the Idling Requirements
related to locomotive operation because Defendants did not challenge Plaintiffs’
standing as to those requirements and Plaintiffs alleged the Regulation imposed new
idling limits on their members that would require them to incur additional operational
and training costs to comply with those limits. (Id. at 14–15.)
Defendants now challenge Plaintiffs’ standing as to the remainder of the Idling
Requirements. (Defs.’ Opp’n and Cross-MSJ at 12.) Plaintiffs allege their members
will incur supervision costs and personnel training costs to comply with the new idling
limits. (Id.) However, Defendants argue Plaintiffs’ declarations alleging this
pocketbook injury are vague and insufficient to establish standing at summary
judgment as they imply injuries-in-fact via training and supervision costs without
establishing those costs. (Id.; Rule 56(d) Mot. at 2–3.) Additionally, Defendants argue
the EPA’s regulations already impose idling limits on operators, and that railroads
have voluntarily imposed idling limits on their own locomotives for some time. (Defs.’
Opp’n and Cross-MSJ at 12.) Thus, Defendants conclude Plaintiffs have failed to
establish the idling limits would require their members to change their training and
supervision practices. (Id. at 12–13.) To the extent the Court credits Plaintiffs’
declarations, Defendants ask that this Court stay any ruling on summary judgment so
that they can conduct discovery to probe the declarations. (Rule 56(d) Mot. at 3, 5–8.) The Court finds that Plaintiffs have adequately established standing to
challenge sections 2478.9(c) and (c)(2) of the Idling Requirements, which require
locomotive operators to ensure AESS devices are functional at all times during the
locomotive’s operation and manually shutdown locomotive engines after 30 minutes if
an AESS device is malfunctioning. Courts routinely recognize economic injury
resulting from governmental action as sufficient to satisfy the Article III injury-in fact-
requirement. See Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001). Here,
Plaintiffs submitted numerous declarations from their members which establish
(1) these members did not previously train their employees to monitor AESS devices
to ensure they were working correctly and would shut off engines after 30 minutes;
(2) the members did not previously train or instruct their employees to manually
shutdown engines after 30 minutes of idling; (3) if the Regulation was not passed, they
would not change these practices; and (4) now the Regulation has been passed, they
must expend funds to train employees to perform manual shutdowns after 30 minutes
of idling. (See BNSF Railway Decl. (ECF No. 58-5) ¶¶ 3, 6–8; Arizona & California
Railroad Company Decl. (ECF No. 58-7) ¶¶ 3, 5–7; San Diego & Imperial Valley
Railroad Company, Inc. Decl. (ECF No. 58-8) ¶¶ 3, 5–7; San Joaquin Valley Railroad
Co. Decl. (ECF No. 58-9) ¶¶ 3, 5–7.) At summary judgment, declarations from
members can be sufficient to establish an organization’s Article III standing. See Cent.
Sierra Env’t Res. Ctr. v. Stanislaus Nat’l Forest, 30 F.4th 929, 937 (9th Cir. 2022). While
the EPA requires locomotives to be equipped with AESS devices that shut off engines
after 30 minutes and prohibits locomotive operators from tampering with or otherwise
circumventing use of the devices,8 this does not impose an affirmative obligation on
operators to monitor and manually shut-off engines after 30 minutes. Thus, the Court
8 Specifically, the EPA’s idling-control standard requires all new locomotives to be equipped with AESS devices that will “shut off the main locomotive engine(s) after 30 minutes of idling (or less),” unless one of four conditions is present. 40 C.F.R. § 1033.115(g). It is “a violation of 40 CFR § 1068.101(b)(1) to circumvent” this idling standard. Id. Locomotive operators may not tamper with the AESS devices. 40 C.F.R. § 1068.101(b)(1); see also id. § 1033.15(b). Tampering includes “remov[ing] or render[ing] inoperative any device,” as well as operating the locomotive in a way “that renders the emission control system inoperative.” Id. § 1068.101(b)(1). finds that Plaintiffs’ evidence is sufficient to establish standing as to sections 2478.9(c)
and (c)(2).
As to the other portions of the Idling Requirements, the Court finds that
Plaintiffs have not established standing. Section 2478.9(a) requires locomotive
operators to ensure an AESS-equipped engine is shut off no more than 30 minutes
after the locomotive becomes stationary subject to four exceptions: (1) to prevent
engine damage; (2) to maintain air pressure for brakes or starter system, or to
recharge the locomotive’s battery; (3) to perform necessary maintenance; or (4) to
otherwise comply with federal or state regulations. This is already a requirement
imposed under federal law. Specifically, the EPA’s idling-control standard requires all
“new” locomotives—whether brand new or remanufactured—to be equipped with AESS
devices that will “shut off the main locomotive engine(s) after 30 minutes of idling (or
less),” unless one of four conditions is present. 40 C.F.R. § 1033.115(g). The four
conditions listed in 40 C.F.R. § 1033.115(g)(2) map those listed in section 2478.9(a). It
is “a violation of 40 CFR § 1068.101(b)(1) to circumvent” the EPA’s idling standard, id.
§ 1033.115(g), and operators are already prohibited from “us[ing] the AESS system in
a manner other than that for which the system was designed,” 73 Fed. Reg. 37,096,
37,123 (June 30, 2008). Accordingly, Plaintiffs have not shown their members will
need to expend additional resources training their personnel to comply with
section 2478.9(a), or that they intend to violation this section, which would constitute a
violation of federal law.
The Parties agree that all claims against section 2478.9(b), which prohibits
tampering with AESS devices, were dismissed in the Court’s previous order dismissing
Plaintiffs’ LIA claim as Plaintiffs had not established standing to challenge the
locomotive equipment aspect of the Idling Requirements. (See MSJ Reply and Opp’n
Cross-MSJ at 8 n.6; Reply Defs.’ Cross-MSJ (ECF No. 64) at 3.) Section 2478.9(c)(1),
which requires malfunctioning AESS devices to be repaired within 30 days, and which
Plaintiffs alleged was preempted by the LIA, was dismissed by the Court’s previous order for the same reason.9 (See MTD Order at 13–15.) Further, Plaintiffs’ declarations
provide insufficient information to establish injury stemming from section 2478.9(d),
which provides locomotive operators with an alternative to manually shutting off a
locomotive after 30 minutes by plugging into wayside power.10 Finally, Plaintiffs state
they “do not challenge, or claim injury from, Section 2478.9(e) . . . .” (MSJ Reply and
Opp’n Cross-MSJ at 8 n.6.)
Accordingly, the Court holds that Plaintiffs have standing to challenge
sections 2478.9(c) and (c)(2) of the Idling Requirements only.
II. Primary Jurisdiction Doctrine
In their prior Motion to Dismiss, Defendants argued the primary jurisdiction
doctrine compelled the stay or dismissal of Plaintiffs’ action in its entirety. (Mot.
Dismiss (ECF No. 20) at 8.) Defendants reasoned the EPA’s determination as to
whether the Spending Account and In-Use Operational Requirements fell within the
scope of state regulation expressly anticipated by Section 209(e)(2)(A) was a question
of first impression that Congress had committed to the EPA, requiring dismissal of
Plaintiffs’ CAA preemption claim. (Id. at 8–9.) Defendants also argued that dismissal
of Plaintiffs’ CAA preemption claim under the primary jurisdiction doctrine
necessitated dismissal of Plaintiffs’ LIA, ICCTA, and Dormant Commerce Clause claims
as well because any eventual approval by EPA under the CAA would need to be
harmonized with preemption under the LIA and ICCTA, as well as the Dormant
Commerce Clause. (Id. at 9.)
9 The Court concurs with Defendants that Plaintiffs’ newly-alleged basis for injury as to section 2478.9(c)(1), costs from locomotives taken out-of-service prior to a periodic inspection and out- of-cycle repairs (see, e.g., BNSF Railway Decl. ¶ 8), were not previously asserted in Plaintiffs’ Amended Complaint, in Plaintiffs’ o pposition to Defendants’ Motion to Dismiss, or Plaintiffs’ initial summary judgment declarations, and will therefore not be considered by the Court. See City of Los Angeles v. Bank of Am. Corp., No. CV 13-9046, 2015 WL 4880511, at *5 (C.D. Cal. May 11, 2015); La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010). 10 Only BNSF Railway addresses wayside power in their declaration, but they merely state they do not currently use wayside power as an alternative to idling. (See BNSF Railway Decl. ¶ 4.) They do not specify they will incur additional costs to change their policies or train their personnel to use wayside power. This Court previously declined to apply the primary jurisdiction doctrine. (MTD
Order at 9 n.6.) While the Court agreed that this “would appear to be a paradigmatic
case for application of the primary jurisdiction doctrine over the CAA claims,” the
Court had already dismissed Plaintiffs’ CAA preemption claim for lack of ripeness
because Defendants admitted they could not enforce the Spending Account and In-
Use Operational Requirements absent EPA approval. (Id.) However, Defendants did
not argue the Idling Requirements, Reporting and Recordkeeping Requirements, or
Administrative Payment Provision required EPA authorization to be enforced. (Id.)
Accordingly, the Court did not see how resolution of claims related to those
provisions fell within the special competence of EPA, or would need to be harmonized
with EPA approval, and declined to apply the primary jurisdiction doctrine as to the
LIA, ICCTA, and Dormant Commerce Clause claims. (Id.)
Defendants urge the Court to reconsider its holding as to the Idling
Requirements, Reporting and Recordkeeping Requirements, and Administrative
Payment Provision. Defendants explain that two aspects of the EPA’s special
competence require a stay. (Defs.’ Opp’n and Cross-MSJ at 16.) First, as this Court
has previously recognized, the EPA must determine whether California is
impermissibly regulating new locomotives before acting on the pending Section
209(e)(2)(A) authorization request. (See MTD Order at 10–11.) This is a question of
first impression, as California has never before sought authorization to regulate
emissions for locomotives. The EPA’s decision will determine which parts of the
Regulation remain preempted under the CAA, as the EPA may decline to authorize
some or all of the Regulation. If any portion of the Regulation is preempted under the
CAA, the Court will not need to consider whether those portions of the Regulation are
also preempted under the ICCTA or violate the Dormant Commerce Clause.
Additionally, as Defendants now argue, the EPA must also decide which
portions of the Regulation require EPA authorization in the first place—in other words,
whether they are “standards [or] other requirements”; “accompanying enforcement procedures”; or “in-use requirements.” (Defs.’ Opp’n and Cross-MSJ at 16.)
Defendants argue that there is no clear line between “standards and other
requirements” and “accompanying enforcement procedures” for non-new
locomotives, which require EPA authorization, and “in-use requirements,” which do
not. (Id. at 17;) see, e.g., 88 Fed. Reg. 72,461, 72,475 (Oct. 20, 2023) (“[R]equirements
[that] are not mobile source standards or not associated compliance or enforcement
mechanisms . . . would not require an authorization.”). Thus, Defendants argue it is
not clear whether the Idling Requirements, Reporting and Recordkeeping
Requirements, and Administrative Payment Provision require EPA authorization and
are thus impliedly preempted under the CAA. If those sections require EPA
authorization, and the EPA denies authorization, then those sections will remain
preempted under the CAA. However, if the EPA authorizes any of those provisions
under the CAA, then Court will need to harmonize that authorization with the ICCTA
and the Dormant Commerce Clause. (Defs.’ Opp’n and Cross-MSJ at 18.)
With all that in mind, Defendants urge the Court to stay or dismiss this action
until the EPA reviews the Regulation. Defendants argue that, until the Court knows
whether and, if so, to what degree, the EPA grants Section 209(e)(2)(A) authorization,
the Court will not know what analysis it should apply to which provisions of the
Regulation. (Id. at 19.) Defendants state they will not take enforcement action until
the EPA acts on CARB’s pending authorization request, although they “reserve the
right to enforce any provisions for any time period ultimately authorized by EPA, as
well as any provisions for which EPA concludes no authorization is necessary and for
which the period for enforcement has not run.” (Id. at 16 n.8.)
Having considered Defendants’ further briefing, the Court agrees that the
primary jurisdiction doctrine compels the Court to stay consideration of Plaintiffs’
ICCTA and Dormant Commerce Clause claims pending the EPA’s review of the
Regulation. The primary jurisdiction doctrine allows courts to stay proceedings or to
dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. Clark v. Time Warner Cable, 523 F.
3d 1110, 1114 (9th Cir. 2008). A court's invocation of the doctrine does not indicate
that it lacks jurisdiction. Id. Rather, the doctrine is a prudential one, under which a
court determines that an otherwise cognizable claim implicates technical and policy
questions that should be addressed in the first instance by the agency with regulatory
authority over the relevant industry rather than by the judicial branch. Id. However,
the doctrine is intended to be used only if a claim “requires resolution of an issue of
first impression, or of a particularly complicated issue that Congress has committed to
a regulatory agency,” and if “protection of the integrity of a regulatory scheme dictates
preliminary resort to the agency which administers the scheme.” Id. (quoting Brown v.
MCI Worldcom Network Servs., 277 F.3d 1166 (9th Cir. 2002).) Although no fixed
formula exists for applying the doctrine, courts typically examine four factors: (1) a
need to resolve an issue that (2) has been placed by Congress within the jurisdiction
of an administrative body having regulatory authority (3) pursuant to a statute that
subjects an industry or activity to a comprehensive regulatory authority that
(4) requires expertise or uniformity in administration. Id. at 1115. Courts must also
consider whether invoking primary jurisdiction would needlessly delay the resolution
of claims, and under Ninth Circuit precedent, “efficiency is the deciding factor in
whether to invoke primary jurisdiction.” Astiana v. Hain Celestial Grp., Inc., 783 F.3d
753, 760 (9th Cir. 2015) (citations and quotation marks omitted).
The Court finds that all four factors are sufficiently satisfied here. Concerning
the first factor, there is a need to clarify which portions of the Regulation are currently
preempted by the CAA. Section 209(e)(2)(A) of the CAA expressly permits California
to “adopt and enforce standards and other requirements relating to the control of
emissions” for non-new locomotives subject to the EPA’s authorization. It is
undisputed that the purpose of the Regulation is to reduce emissions from
locomotives operating in California. Most, or all, provisions of the Regulation may
qualify as “standards and other requirements” or “accompanying enforcement procedures” under Section 209(e)(2) which cannot be enforced absent EPA approval.
(See Defs.’ Opp’n and Cross-MSJ at 17–18.) However, other provisions of the
Regulation may qualify as “in-use requirements” that do not require EPA approval.
(Id.) For the portions of the Regulation that require EPA authorization, if authorization
is denied, those portions are preempted by the CAA and unenforceable. The Court
will not need to consider whether those portions are also preempted by the ICCTA or
violate the Dormant Commerce Clause. For portions that are authorized by the EPA,
the Court will need to harmonize that authorization with preemption under the ICCTA
and the Dormant Commerce Clause. In sum, the authorization decision by the EPA
will greatly inform what decisions the Court must make moving forward.
California has not previously sought the EPA’s authorization to regulate
emissions for non-new locomotives under Section 209(e)(2)(A), so there is little
guidance as to which portions of the Regulation may require EPA approval. The EPA
has previously considered numerous authorization requests in the motor vehicle
context under 42 U.S.C. § 7543(b). However, the CAA requires EPA authorization for
more categories of non-road vehicle regulation than motor vehicle regulation.
Specifically, for new non-road vehicles, such as locomotives, 42 U.S.C. § 7543
preempts “other requirements,” in addition to the “standards” and “accompanying
enforcement procedures” which are preempted for new motor vehicles. Compare id.
§ 7543(e)(2)(A) with id. § 7543(b)(1). And 42 U.S.C. § 7543 also impliedly preempts
“standards,” “other requirements,” and “enforcement procedures” for non-new non-
road vehicles, whereas preemption in the motor vehicle context extends only to new
vehicles. Compare id. § 7543(e) with id. § 7543(a). Thus, the scope of preemption is
far broader and more ambiguous in the non-road vehicle context than the motor
vehicle context.
In addition, there is reason to believe the idling limits imposed as part of the
Idling Requirements, Reporting and Recordkeeping Requirements, and Administrative
Payment Provision may require EPA authorization as “standards [or] other requirements” and “accompanying enforcement procedures.” As the Supreme Court
has previously explained, “standards” in the new vehicle context include specifications
of “emission-control technology with which [vehicles] must be equipped.” Engine
Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 253 (2004). The EPA
requires all new locomotives to be equipped with AESS devices. The idling limits set
forth in sections 2478.9(c) and (c)(2) require locomotive operators to ensure AESS
devices are functional at all times during the locomotive’s operation and manually
shutdown locomotive engines after 30 minutes if an AESS device is malfunctioning.
The EPA could well find that these idling limits are therefore “other requirements” as
they establish requirements for the use of AESS devices.
Additionally, the EPA has previously authorized certain reporting and
recordkeeping requirements—treating them as “accompanying enforcement
procedures”—where they ensured other authorized requirements could be “effectively
implemented and enforced.” See, e.g., 82 Fed. Reg. 6,525, 6,531 (Jan. 19, 2017)
(diesel-fueled transport refrigeration units); see also, e.g., 88 Fed. Reg. 24,411, 24,414
(Apr. 20, 2023) (large-spark ignition engines). The EPA might do the same here if they
find the Reporting and Recordkeeping Requirements and Administrative Payment
Provision similarly enable implementation and enforcement of the Regulation’s more
substantive provisions. However, these theories are untested in the railroad context.
Thus, which portions of the Regulation will require EPA authorization under Section
209(e)(2)(A) is a question of first impression.
The second and third factors are also met, as Congress has given the EPA the
jurisdiction to consider and grant authorizations under Section 209(e)(2)(A), as well as
issue regulations to implement that section. See 42 U.S.C. § 7543(e). Further, the
CAA subjects locomotive emissions to a comprehensive regulatory scheme by
delegating the authority to regulate emissions for new locomotives to the EPA, and
the authority to regulation emissions for non-new locomotives to California with the
EPA’s authorization. See 42 U.S.C. §§ 7547(a)(5), 7543(e)(2)(A). Finally, the fourth factor is met because determining what aspects of the
Regulation must be approved by the EPA requires both expertise and uniformity of
administration. Congress concluded that the EPA has the relevant expertise to
regulate locomotive emissions when it delegated the authority to regulate new
locomotive emissions, id. § 7547(a)(5), and delegated the authority to grant or deny
California’s authorization requests concerning non-new locomotives, id. §
7543(e)(2)(A). Implicit in this delegation is the authority for the EPA to draw the line
between regulations that require their approval, and those that do not. Accordingly,
Congress’s structure allows for one uniform regulatory program applicable to
locomotive emissions.
Plaintiffs argue that it is unnecessary for the Court to wait for the EPA’s
authorization decision because, even if the EPA grants approval of the Regulation
under the CAA, that is not an authorization to displace other federal laws. (MSJ Reply
and Opp’n Cross-MSJ at 7.) They argue that, even if the EPA authorizes the entire
Regulation, the Court will still need to rule on whether the Regulation is also
preempted by the ICCTA. (Id.) Thus, Plaintiffs argue the outcome is the same whether
the Court acts now or later.
First, this argument ignores the possibility that the EPA may decide the
Regulation in whole or in part requires its authorization but denies that authorization
request. Should this occur, the Court will not need to rule on ICCTA preemption as to
those portions of the Regulation as they will be preempted by the CAA.
More importantly, however, the EPA’s decision will inform the Court’s analysis
of whether any approved regulations are preempted by ICCTA. The Court agrees
that, if the EPA grants authorization, such authorization will not displace the ICCTA.
Rather, to the extent the CAA and the ICCTA conflict, the Court will need to harmonize
them. See Swinomish Indian Tribal Cmty. v. BNSF Ry. Co. (“Swinomish”), 951 F.3d
1142, 1157 (9th Cir. 2020). The Ninth Circuit has instructed that, in order to
harmonize two federal statutes, courts must first assess whether the later statute displaces, or repeals, the earlier one. Id. at 1153 (“When a ‘case involves the interplay
between two statutory schemes created by Congress for different reasons and at
different times,’ we typically ask whether the later statute repeals the prior one.”
(quoting Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1224 (11th Cir. 2014)). Repeals by
implication are disfavored; rather, Congress’s intent to repeal must be clear. Id. at
1156. “In the absence of some affirmative showing of an intention to repeal, the only
permissible justification for a repeal by implication is when the earlier and later
statutes are irreconcilable.” Morton v. Mancari, 417 U.S. 535, 550 (1974). If the earlier
statute is not repealed, then courts determine whether the two federal statutes
conflict, i.e., whether both apply to the challenged action. See, e.g., BNSF Ry. Co. v.
California Dep’t of Tax & Fee Admin. (“BNSF”), 904 F.3d 755, 767–68 (9th Cir. 2018)
(holding there was no conflict between 49 U.S.C. § 5125(f)(1) of the Hazardous
Materials Transportation Act (“HMTA”) and the ICCTA because the fees at issue were
not “fair” and thus did not fall within the scope of section 5125(f)(1)). If two federal
statutes conflict, then then courts must strive to give “effect to both laws if possible.”
Ass’n of Am. R.Rs. v. S. Coast Air Quality Mgmt. Dist. (“AAR”), 622 F.3d 1094, 1097
(2010); see also Mancari, 417 U.S. at 551 (“The courts are not at liberty to pick and
choose among congressional enactments, and when two statutes are capable of co-
existence, it is the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.”).
It is clear that the ICCTA, although a more recent law, has not repealed the
CAA. “Despite the broad ‘preemption’ language of § 10501(b) of the ICCTA, and
consistent with the jurisprudence on ‘implicit repeals,’ courts and the STB have
routinely held that the ICCTA does not repeal particular federal statutes and the
remedies provided thereunder.” Swinomish, 951 F.3d at 1157. The principal example
of federal laws that should be harmonized with the ICCTA are environmental laws.
BNSF Ry. Co. v. Clark Cty., 11 F.4th 961, 966 (9th Cir. 2021). Indeed, “nothing in
section 10501(b) is intended to interfere with the role of state and local agencies in implementing Federal environmental statutes, such as the Clean Air Act, the CWA,
and the SDWA.” Joint Petition for Declaratory Ord. – Boston & Maine Corp. & Town of
Ayer, MA (“Town of Ayer”), 5 S.T.B. 500, 2001 WL 458685, at *5 (S.T.B. Apr. 30, 2001).
This system preserves a role for state and local agencies in the environmental
regulation of railroads. AAR, 622 F.3d at 1098.
However, the CAA and the ICCTA may conflict here. Section 209(e)(2)(A)
permits California, with the approval of the EPA, to regulate emissions for non-new
locomotives. The Regulation, while aimed at regulating locomotive emissions,
touches on numerous other aspects of railroad operation and management such as
record-keeping, spending, and locomotive configuration. The ICCTA, for its part,
broadly preempts laws affecting “transportation by rail carriers.” 49 U.S.C. § 10501(b).
Under the ICCTA, the Surface Transportation Board (“STB”) has jurisdiction over
transportation of rail carriers and track construction, and the remedies afforded by the
ICCTA are “exclusive and preempt the remedies provided under Federal or State
law.” Id.; see AAR, 622 F.3d at 1097 (section 10501(b) “preempt[s] a wide range of
state and local regulation of rail activity”). Thus, portions of the Regulation that are
authorized under Section 209(e)(2)(A) may also fall under the jurisdiction of the STB.
However, as explained above, it is unclear which portions of the Regulation require
EPA authorization, and whether such authorization will be granted or denied. It is this
uncertainty that weighs in favor of staying this matter pending the EPA’s review.
Plaintiffs argue that, even if the EPA authorizes the Regulation, no
harmonization is required because an authorization under Section 209(e)(2)(A) would
simply remove the preemption bar that otherwise applies under the CAA but would
not shield the challenged provisions from the ICCTA or Dormant Commerce Clause.
(MSJ Reply and Opp’n Cross-MSJ at 14.) In support of this, Plaintiffs point to Rocky
Mountain Farmers Union v. Corey (“Rocky Mountain”), 730 F.3d 1070 (9th Cir. 2013), in
which the Ninth Circuit considered whether a fuel regulation passed by California
violated the Dormant Commerce Clause. California argued that its regulation was authorized under 42 U.S.C. § 7545(c)(4)(B) of the CAA, foreclosing a Dormant
Commerce Clause challenge. Id. at 1106. The Ninth Circuit rejected California’s
argument, explaining that the “sole purpose” of section 7545(c)(4)(B) was to relieve
California from CAA preemption. Id. Thus, it did not grant California’s fuel regulation
exemption from the Dormant Commerce Clause. Id.
The Court finds Rocky Mountain inapposite here. Notably, the court in Rocky
Mountain considered whether section 7545(c)(4)(B) exempted California’s fuel
regulation from Dormant Commerce Clause scrutiny. “[F]or a state regulation to be
removed from the reach of the dormant Commerce Clause, congressional intent must
be unmistakably clear.” South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91
(1984). As a result, to authorize a Dormant Commerce Clause violation, Congress
must do more than simply authorize a state to regulate in an area; it must “affirmatively
contemplate otherwise invalid state legislation,” id., and clearly express its intent to
“remove federal Constitutional constraints.” Sporhase v. Nebraska ex rel. Douglas,
458 U.S. 941, 960 (1982). Defendants bear the burden of “demonstrating [this] clear
and unambiguous intent.” Wyoming v. Oklahoma, 502 U.S. 437, 458 (1992). The
court in Rocky Mountain did not consider whether California’s fuel regulation required
harmonization with other federal statutes, only whether it met the stringent standard
for exemption from Dormant Commerce Clause scrutiny. Thus, Rocky Mountain has
no bearing on the need to harmonize the CAA with the ICCTA. Further, the EPA’s
authorization under Section 209(e)(2)(A) may well have a direct bearing on application
of the Dormant Commerce Clause in these proceedings.
Further, the Ninth Circuit has yet to address the harmonization analysis courts
must undertake for Section 209(e)(2)(A) of the CAA and the ICCTA. Defendants urge
the Court to adopt the harmonization analysis used in BNSF. That case involved an
ICCTA preemption challenge to a California law that required railroads to collect a fee
from shippers of hazardous materials and to remit the fees to the State under section
5125(f)(1) of the HMTA, which authorized states to impose fees related to transportation of hazardous material by rail “only if the fee is fair and used for a
purpose related to transporting hazardous material.” 904 F.3d at 759, 763, 766. The
court concluded that it “should not read the preemption provision of the ICCTA to
eliminate the protection from preemption provided by § 5125(f)(1) of the HMTA,”
reasoning that that principles of federalism and canons of construction supported this
conclusion. Id. at 765. First, federalism entails a presumption against the federal
preemption of state rules in areas of traditional state regulation, which includes
protection of residents from physical and environmental hazards. Second, where
there is no clear intention otherwise, a specific statute will not be controlled or
nullified by a general one. And when approaching conflicting federal law, repeals by
implication are disfavored, as Congress will address preexisting law when it wishes to
suspect normal operations in a later statute. Third, Congress had said nothing
indicating the ICCTA would repeal the ability of states to impose fees under the
HMTA. Accordingly, the court concluded that “that the ICCTA and the HMTA are
easily harmonized by reading § 5125(f)(1) of the HMTA to protect from preemption
the fees specifically authorized in that section.” Id. at 762.
Defendants urge that, under BNSF, “Section 209(e)(2)(A) can similarly be
harmonized with ICCTA by concluding that the CAA protects California’s EPA-
authorized regulation of non-new locomotive emissions.” (Defs.’ Opp’n and Cross-
MSJ at 28.) There is much to be said for Defendants’ argument. First, in enacting the
Regulation, California is acting within the scope of traditional state regulation, i.e.,
protecting citizens from environmental hazards. Second, in BNSF, the court found
section 5125(f)(1)’s “narrow and specific” protection of fair fees relating to
transportation of hazardous materials was neither controlled nor nullified by ICCTA’s
“broad and general” preemption provision. BNSF, 904 F.3d at 766. One could argue
that Section 209(e)(2)(A) is similarly narrow and specific, focusing exclusively on
emissions from non-road vehicles and engines. “Where there is no clear intention
otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Mancari, 417 U.S. at 550–51. Third, as the
STB and the Ninth Circuit have repeatedly recognized, “nothing in section 10501(b)
[of the ICCTA] is intended to interfere with the role of state and local agencies in
implementing Federal environmental statutes, such as the Clean Air Act . . . .”
Swinomish, 951 F.3d at 1157 (quoting Town of Ayer, 2001 WL 458685, at *6 n.28).
Section 209(e)(2)(A) was preexisting law when ICCTA was enacted. Pub. L. No. 104-
88, 109 Stat. 803 (1995) (ICCTA); Pub. L. No. 101-549, 104 Stat. 2502 (Nov. 15, 1990)
(Section 209(e)(2)(A)). Thus, the “strong presum[ption] . . . that Congress will
specifically address preexisting law when it wishes to suspend its normal operations in
a later statute” applies. BNSF, 904 F.3d at 766 (internal quotation marks omitted). Yet
Congress gave no indication it intended the ICCTA to upend its existing approach to
locomotive emission control. Accordingly, as in BNSF, Defendants urge this Court to
conclude that state regulation authorized under a federal statute that conflicts with,
but is more specific than, the ICCTA is shielded from ICCTA preemption.11
Plaintiffs do not concede that BNSF provides the appropriate harmonization
approach. Rather, they point to STB authority which engages in a situation-specific
harmonization analysis when considering conflicts between the ICCTA and other
federal statutes. As the STB has explained:
[F]ederal environmental statutes such as the CAA, the Clean Water Act, and the Safe Drinking Water Act are generally outside the scope of § 10501(b) preemption, unless the
federal environmental laws are being used to regulate rail
11 Courts in other circuits have applied a similar line of reasoning when harmonizing federal statutes with the ICCTA. In Tyrrell v. Norfolk South Railway Company, 248 F.3d 517 (6th Cir. 2001), for example, the Sixth Circuit considered whether an Ohio track clearance regulation was preempted under the Federal Railway Safety Act (“FRSA”) and the ICCTA. The FRSA, which governs rail safety, explicitly provides a role for states to supplement federal regulations with their own rules. See 49 U.S.C. § 20106 (“A State may adopt or c ontinue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the state requirement.”). The Sixth Circuit, interpreting this language, found that the state rule, which regulated rail safety, was part of the FRSA’s regulatory regime. See Tyrrell, 248 F.3d at 521. However, the state’s rule also triggered the ICCTA's preemption clause. To avoid a conflict, the court found that Congress intended the two statutes to be construed in pari materia and that the ICCTA did not preempt state rules relating to railroad safety because such rules fell under the FRSA's regulatory umbrella, which had “primary authority” over rail safety matters. See id. at 523. operations directly or being applied in a discriminatory manner against railroads . . . [h]owever, actions taken and regulations enacted under federal environmental statutes or
other federal statutes may directly conflict with the purposes and regulatory scheme under the Interstate Commerce Act. When such a conflict occurs, the Board or a court must determine whether the two federal statutes and their applicable regulatory schemes can be harmonized.
United States Envt’l Prot. Agency – Petition for Declaratory Ord. (“EPA Petition”), No. FD
35803, 2014 WL 7392860, at *7 (S.T.B. Dec. 29, 2014) (citations omitted). “[W]hether
a particular Federal environmental statute, local land use restriction, or other local
regulation is being applied so as to not unduly restrict the railroad from conducting its
operations, or unreasonably burden interstate commerce, is a fact-bound question.”
Town of Ayer, 2001 WL 458685, at *6. Accordingly,
situations need to be reviewed individually to determine the impact of the contemplated action on interstate commerce and whether the statute or regulation is being applied in a
discriminatory manner, or being used as a pretext for frustrating or preventing a particular activity, in which case the application of the statute or regulation would be preempted.
Id.
For example, in EPA Petition, the STB considered a request from the EPA that it
issue a declaratory order ruling as to whether proposed locomotive idling record-
keeping and idling limitation rules in the South Coast Air Basin of California would be
preempted by the ICCTA if the EPA were to approve the rules as part of California's
SIP under the CAA. 2014 WL 7392860, at *1. The STB ultimately declined to issue a
declaratory order but opined that the rules would likely be preempted even if the EPA
were to incorporate the Rules into California’s SIP “because of the potential patchwork
of regulations that could result, contravening Congress’s purpose in enacting [the
ICCTA].” Id. at *8. While the STB noted that not “every existing federal regulation that
may affect railroad operations is preempted by [the ICCTA],” the STB reasoned that “the current record” indicated “that allowing states and localities to create a variety of
complex regulations governing how an instrument of interstate commerce is
operated, equipped, or kept track of (even if federalized under the CAA) would
directly conflict with the goal of uniform national regulation of rail transportation.” Id.
at *9.
The Court need not rule on the proper harmonization analysis in this order. No
matter the harmonization method the Court ultimately adopts, the scope of the
Court’s review will turn primarily on the EPA’s decision. Thus, the Court will reserve
decision on this matter until the EPA has completed its review of the Regulation.12
Finally, Plaintiffs argue that, under binding Ninth Circuit precedent, a stay is not
necessary because hypothetical EPA actions are “irrelevant” to ICCTA preemption and
provide “no authority for the courts to harmonize” state or local “rules with ICCTA.”
AAR, 622 F.3d at 1098. AAR, however, is distinguishable from the case at hand. In
AAR, the Ninth Circuit held that a local air quality district’s rules directed to train idling
and reporting and recordkeeping were “plainly” preempted under the ICCTA. Id. at
1096, 1098. In so ruling, the court reasoned that “if an apparent conflict exists
between ICCTA and a federal law, then the courts must strive to harmonize both laws
. . . .” Id. at 1097. However, if “an apparent conflict exists between ICCTA and a state
or local law” then ”different rules apply.” Id. The law at issue in that case was a purely
local law, which had not yet been submitted to CARB, or to the EPA by CARB, for
approval. Id. at 1098. Thus, the court reasoned that the rules did not have the force
and effect of federal law, even if they might if incorporated into California’s EPA-
approved SIP in future and found no harmonization between the CAA and ICCTA was
necessary. Id. Here, by contrast, the harmonization analysis involves a regulation
12 The Court will also reserve ruling on whether and what form of harmonization analysis must be performed for portions of the Regulation that are found to be “in-use requirements,” and thus do not require EPA authorization, but fall within the powers reserved for the states under Section 209(d). See EMA, 88 F.3d at 1094. currently pending before the EPA. Thus, future EPA action is not hypothetical, and the
Court must account for the EPA’s possible imminent approval of the Regulation.
The Court finds that a stay of Plaintiffs’ ICCTA and Dormant Commerce Clause
claims will not needlessly delay resolution of those claims. Rather, imposing a stay
now will allow the Court to comprehensively review and harmonize any portions of the
Regulation authorized under the CAA with the ICCTA and the Dormant Commerce
Clause once the EPA has completed its review. Further, Defendants have represented
to the Court they will not enforce any aspect of the Regulation until the EPA has issued
its ruling, which effectively stays the Regulation pending EPA review.
Accordingly, until such time as the EPA issues their ruling, the primary
jurisdiction doctrine compels a stay of Plaintiffs’ ICCTA and Dormant Commerce
Clause claims.
In accordance with the above, it is hereby ORDERED:
1. Plaintiffs’ Motion for Summary Judgment (ECF No. 29) is DENIED without
prejudice;
2. Defendants’ Cross-Motion for Summary Judgment (ECF No. 51) is
GRANTED in part as to Plaintiffs’ lack of standing to challenge the Idling
Requirements specified in California Code of Regulations, title 13, sections
2478.9(a), (b), (c)(1), (d), and (e). The remainder of Defendants’ Cross-
Motion is DENIED without prejudice;
3. Defendants’ Federal Rule of Civil Procedure 56(d) Motion (ECF No. 53) is
DENIED;
4. This matter is STAYED pending a decision from the EPA on California’s
Section 209(e)(2)(A) authorization request; and
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//// 5. The Parties shall file a Joint Status Report within thirty (30) days of a decision from the EPA. A IT IS SO ORDERED. Dated: _September 30, 2024 “Daniel J CoD Hon. Daniel alabretta UNITED STATES DISTRICT JUDGE DJC4 - Ass'nAmRR23-cv-1154.MSJ MQ
Assoc. of American Railroads v. Randolph (Assoc. of American Railroads v. Randolph) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.