Coalition for Clean Air, Inc., et al v. VWR International, LLC

Filing 34

ORDER DENYING Plaintiff's' 6 Motion for Preliminary Injunction, signed by District Judge Lawrence J. O'Neill on 1/8/13. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA
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COALITION FOR CLEAN AIR, a California
7 nonprofit corporation; CENTER FOR
ENVIRONMENTAL HEALTH, a California
8 nonprofit Corporation; ASSOCIATION OF
IRRITATED RESIDENTS, a California
9 nonprofit organization; TEAMSTERS JOINT
COUNSEL 7, an organized labor union;
10 KEVIN LONG, an individual,

ORDER DENYING PLAINTIFFS’
REQUEST FOR PRELIMINARY
INJUNCTION (DOC. 6).

Plaintiffs,

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1:12-CV-01569-LJO-BAM

v.

13 VWR INTERNATIONAL, LLC, a Delaware
corporation; and DOES 1-X, inclusive,
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Defendants.
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I. INTRODUCTION

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This case arises under the citizen suit provision of the Clean Air Act (“CAA”), 42 U.S.C.

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§ 7604(a). Plaintiffs, a coalition of environmental and labor interests, allege that Defendant VWR

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International, LLC, (“VWR”), a laboratory supply distributor, violated San Joaquin Valley Air Pollution
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Control District (“District”) Rule 9510, implemented and approved as part of California’s State

22 Implementation Plan (“SIP”) under the CAA, by failing to apply for an Indirect Source Review (“ISR”)
23 permit prior to obtaining approval to open and/or operate a trucking distribution facility in Visalia,
24 California. Before the Court for decision is Plaintiffs’ request for a preliminary injunction staying all
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further construction and operation activities at the Visalia facility. Doc. 6.
Plaintiffs filed their preliminary injunction request on September 28, 2012, noticing a hearing for

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October 29, 2012. Id. Thereafter, the parties stipulated to continue the hearing date to November 13,
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2012. Doc. 9. Defendants filed an opposition on October 25, 2012, Doc. 10, to which Plaintiffs replied

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on November 6, 2012, Doc. 14. One day later, Defendants filed a motion to dismiss the complaint

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pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), setting that motion for hearing on December 10, 2012.

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Doc. 17. Finding the harms alleged in the request for injunctive relief not to be of such urgency that the
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request could not be addressed alongside the motion to dismiss, and finding the need for additional

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briefing on the presence of irreparable harm, the Court consolidated the briefing schedules on the

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pending motions. Doc. 18. The parties then stipulated to move the hearing date on both motions to

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December 20, 2012, Doc. 22, filed supplemental briefs regarding irreparable harm, Docs. 24 & 26, and

10 completed briefing on the motion to dismiss. Upon preliminary review of the parties’ filings, the hearing
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was vacated to permit time for the Court to thoroughly review the voluminous materials. Doc. 30.
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Having reviewed those filings, and in light of the entire record, the Court is now prepared to rule on
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Plaintiffs’ request for preliminary injunction. The Court does not believe oral argument is necessary to
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15 aid resolution of this request, and hereby rules on the papers pursuant to Local Rule 230(g).
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II. DISCUSSION
A.

Standard of Decision
Injunctive relief is an “extraordinary remedy, never awarded as of right.” Winter v. Nat'l Res.

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Def. Council, Inc., 555 U.S. 7, 24 (2008). As such, a court may grant such relief only “upon a clear

21 showing that the plaintiff is entitled to such relief.” Id. at 22. To prevail, the moving party must show:
22 (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable
23 harm absent preliminary injunctive relief; (3) that the balance of equities tips in the moving party's
24 favor; and (4) that preliminary injunctive relief is in the public interest. Id. at 20. In considering the four
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factors, the Court “must balance the competing claims of injury and must consider the effect on each
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party of the granting or withholding of the requested relief.” Id. at 24.
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B.

District Rule 9510, which “is designed to achieve reductions in air pollution attributable to

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Rule 9510.

development projects,” is familiar to this Court. Nat'l Ass'n of Home Builders v. San Joaquin Valley
Unified Air Pollution Control Dist., 2008 WL 4330449, *4 (E.D. Cal. Sept. 19, 2008) aff'd, 627 F.3d

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730 (9th Cir. 2010).
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When Rule 9510 was adopted, the San Joaquin Valley was classified as nonattainment
under federal and state standards for PM10, PM2.5 and ozone. PM10 and PM2.5 can be
directly-emitted geologic material, including entrained road and other dust. PM10 and
PM2.5 can [also be formed when precursor emissions, such as oxides of Nitrogen
(“NOx”) and volatile organic compounds (“VOCs”) are emitted as a gas and form PM10
and PM2.5 through chemical processes. [N]ew residential and commercial development
indirectly causes air pollution by attracting mobile sources and contributing increased
energy use.

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[] Rule 9510 targets indirect sources of air pollution.... [by] set[ting] target reductions for
emissions associated with construction (“construction emissions”) and future operation of
development projects (“operational emissions”). For construction, Rule 9510's target is to
reduce PM10 emissions by 45 percent and NOx by 20 percent as compared to emissions
generated using “average” construction equipment in California. For future operation,
Rule 9510's target is to incorporate mitigation measures into project design to reduce
emissions that would be otherwise indirectly caused by the project (e.g., increased traffic)
over a 10-year period. The PM 10 target is to reduce unmitigated operational emissions
by 50 percent. The NOx target is to reduce emissions by 33.3 percent.

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[U]nder Rule 9510, a computer model is used to calculate emissions attributable to
“construction” and “operational” phases of a development project, and the project
developer is responsible to mitigate a portion of those emissions. The District notes that
under Rule 9510, mitigation may be achieved: (1) “on-site” by incorporating design
features and other pollution mitigation measures into the project; (2) “off-site” by paying
a mitigation fee which the District uses to “buy” requisite amount of emissions reductions
through its emissions reduction incentive program (“ERIP”); or (3) by a combination of
“on-site” and “off-site” measures.

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Id. at *5.
C.

Irreparable Harm.
“Preliminary injunctive relief is available only if plaintiffs ‘demonstrate that irreparable injury is

likely in the absence of an injunction.’ ” Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir. 2009)
(quoting Winter, 555 U.S. at 22) (noting that Winter rejected the Ninth Circuit's “possibility of
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irreparable harm” test). “[T]o demonstrate irreparable harm the plaintiff must demonstrate potential

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harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary

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injunction must be the only way of protecting the plaintiff from harm.” Campbell Soup Co. v. ConAgra,

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Inc., 977 F.2d 86, 91 (3rd Cir. 1992).
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Plaintiffs allege that they will be harmed irreparably if a preliminary injunction does not issue

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because VWR’s violations of Rule 9510 “are forcing Plaintiffs’ members to breathe air that is more

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polluted than allowed by the [CAA].” Doc. 24 at 5. It is well established that the San Joaquin valley has

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the worst fine particulate matter pollution in the United States, 75 Fed. Reg. 74,518, 74,519 (Nov. 30,

10 2010), and one of the worst ozone pollution problems, 76 Fed. Reg. 57,846, 57,847 (Sept. 16, 2011). It
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is also undisputed that an individual suffers injury for purposes of standing “if compelled to breathe air
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less pure than mandated by the Clean Air Act.” Natural Res. Def. Council v. EPA, 507 F.2d 905, 910
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(9th Cir. 1974). But, this does not necessarily mean that Plaintiffs have suffered irreparable injury under
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The “mitigate or pay” nature of Rule 9510 raises novel issues regarding the presence of

17 irreparable harm. An applicant/facility covered by Rule 9510 is required to make certain emissions
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reductions for both the construction and operational phases of a project. Rule 9510 § 6.0. However, the
reductions may be achieved “through any combination of on-site emissions reduction measures or off-

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site fees.” Id. at § 6.3. If the applicant chooses to pay the off-site fee, the fee is calculated according to

22 formulae set forth in the rule. Id. at § 7.1
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Any fees due shall be paid within sixty (60) calendar days after the application is approved or in

24 accordance with a Fee Deferral Schedule (“FDS”). Id. at 7.3. If the applicant’s total off-site fee exceeds
25 $50,000, the applicant may propose a FDS for the balance of the fee that exceeds $50,000. Id. at § 5.5.
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In any event, all fees must be paid prior to the issuance of any building permits. Id. § 3.25. The FDS
must be set up in a manner that provides “assurance that reductions from off-site emissions reductions

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project can be obtained reasonably contemporaneous with emissions increases associated with the

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project....” Id. § 5.5.

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Plaintiffs point to the requirement that FDS be designed to ensure “reasonably
contemporaneous” emissions reductions as evidence that requiring VWR to apply for an ISR permit

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would remedy any increased pollution to which Plaintiffs would be exposed as a result of VWR’s

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operations. Yet, this ignores the total lack of specificity in the Rule regarding what actually happens

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once the fee is paid to the District. Rule 9510 provides that the District “shall” use any off-site fees to

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“fund quantifiable and enforceable off-site projects that reduce surplus emissions of NOx and PM10 in

10 an expeditions manner....” Id. at § 10.2. The Rule does contain some specific requirements regarding the
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expenditure of funds by the District. For example, the District “shall enter into a binding contract with
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the applicant of the off-site project, which will, at a minimum require an annual report from the
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applicant that includes information necessary to ensure that emissions reductions are actually
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In approving Rule 9510 as part of the SIP, EPA discussed a closely related concern:

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If Rule 9510 was incorporated into the SIP, EPA could use the Act's enforcement
authority to require that the appropriate fees be collected from a project developer, and
that the collected fees be used by the SJVUAPCD to seek off-site emissions reductions.
However, the issue of federal enforceability arises because EPA may not be able to
enforce the terms of a contract between the SJVUAPCD and an off-site project applicant,
and thus the emissions reductions required by that contract, pursuant to its enforcement
authority under the Act. Thus the issue is not EPA's ability to enforce the provisions of
Rule 9510 as they are written, but whether those provisions create adequate legal
authority for EPA to require emissions reductions which are sought or claimed by the

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VWR has submitted numerous documents for consideration by way of judicial notice. For example, VWR requests judicial
notice of a Staff Report submitted as part of the District’s application to the EPA to approve Rule 9510, which states that offsite fee “funds will be managed by a grant-like program and allocation as applications are received [from potential emissionreduction projects].” Doc. 27, Ex. 5, Att. 2, at 15. VWR also submits the District’s 2010 Annual Report, which indicates that
the District holds a large unexpended balance in its off-site fee fund. Id., Ex. 4, at 1. But, VWR misunderstands the purpose
and scope of judicial notice. While the court may take judicial notice of the certain types of documents, those documents are
judicially noticeable “only for the purpose of determining what statements are contained therein, not to prove the truth of the
contents or any party's assertion of what the contents mean.” United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 975
(E.D. Cal. 2004). VWR does not propose any other basis for consideration of these documents. They will not be considered
for the truth of their content.

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rule. In view of these enforceability concerns, among other issues, the TSD recommends
approving Rule 9510 into the SIP, but also recommends that “reductions from the Rule
should not be credited in any attainment and rate of progress/reasonable further progress
demonstrations or used to meet contingency measure requirements until the District
corrects the identified problems, which we believe the District should easily be able to
do.” In today's final rule we therefore approve Rule 9510 but we do not assign any
emissions reduction credit to the rule for purposes of any attainment or progress
demonstration in any area.

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76 Fed. Reg. 26,609-01, 26,613 (May 9, 2011) (emphasis added). Despite the above language, Plaintiffs

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maintain that EPA “recognized that emission reductions would, in fact, result from Rule 9510

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implementation, even if EPA could not enforce the reductions as to third parties,” Doc. 24 at 4, but they

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cite no authority for this proposition. The language of the Federal Register notice suggests that the EPA

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Plaintiffs bear the burden of demonstrating that unless a preliminary injunction issues, they will
suffer irreparable harm that cannot be redressed by a legal or an equitable remedy following a trial. In
the context of this case, this requires an affirmative showing that halting VWR’s operations until they

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apply for and obtain an ISR permit under Rule 9510 will avoid exposing Plaintiffs to increased levels of
pollution. In light of Rule 9510’s “mitigate or pay” structure, Plaintiffs have failed to demonstrate that,

19 if the requested preliminary injunction issues and the Rule 9510 ISR permit process requires emissions
20 reductions of VWR, those reductions would likely take place before this case could be resolved on the
21 merits. Plaintiffs have therefore failed to present “clear showing” of entitlement to the extraordinary
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remedy of preliminary injunctive relief.

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Accordingly, Plaintiffs request for a preliminary injunction is DENIED.
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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

January 8, 2013

UNITED STATES DISTRICT JUDGE
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