California Dump Truck Owners Association v. Air Resources Board
Filing
54
MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 1/27/2012 DENYING 31 Motion for Prelinimary Injunction. (Michel, G)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
CALIFORNIA DUMP TRUCK OWNERS
ASSOCIATION,
No. 2:11-cv-00384-MCE-GGH
11
Plaintiff,
MEMORANDUM AND ORDER
12
v.
13
MARY D. NICHOLS, et al.,
14
Defendants.
15
16
----oo0oo----
17
Presently before the Court is Plaintiff California Dump
18
Truck Owners Association’s (“CDTOA” or “Plaintiff”) Motion for
19
Preliminary Injunction (“Motion”).
20
preliminarily enjoin enforcement of California’s “Regulation to
21
Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen
22
and Other Criteria Pollutants, from In-Use Heavy-Duty
23
Diesel-Fueled Vehicles,” Cal. Code Regs. tit. 13, § 2025 (“the
24
Regulation” or “the Rule”), by Mary D. Nichols, Chairperson of
25
the California Air Resources Board, and James Goldstene,
26
Executive Officer of the California Air Resources Board,
27
(collectively “ARB”) on the basis that the Regulation is
28
preempted by federal law.
1
By its Motion, CDTOA seeks to
1
The ARB and Defendant-Intervenor National Resources Defense
2
Counsel (“NRDC”) opposed CDTOA’s Motion, and a hearing was held
3
before this Court on December 15, 2011.
4
reasons, Plaintiff’s Motion is DENIED.
For the following
5
BACKGROUND
6
A.
7
Procedural Background
8
9
CDTOA initiated this action on February 11, 2011, and filed
10
its operative First Amended Complaint (“FAC”) on April 6, 2011.
11
ECF Nos. 1 and 12.
12
this Court granted NRDC leave to intervene as Defendant.
13
No. 18.
14
By Memorandum and Order dated May 20, 2011,
ECF
Just over one month later, CDTOA filed a motion for summary
15
judgment, which it set for hearing on this Court’s September 6,
16
2011 calendar.
17
of the parties and the Order of this Court, hearing on the
18
parties’ cross-motions for summary judgment was reset for
19
January 26, 2012.1
20
the Regulation was January 1, 2012, which is prior to the time
21
the dispositive motions will be resolved, CDTOA filed the instant
22
Motion seeking to temporarily enjoin enforcement of the Rule
23
until such time as those summary judgment motions can be heard
24
and decided.
25
///
26
///
ECF No. 22, 25.
Per the subsequent stipulation
ECF Nos. 29-30.
Since the effective date of
Motion, 1:17-22.
27
1
28
That hearing has since been continued to February 9, 2012.
ECF No. 53.
2
1
B.
Factual Background
2
3
The challenged Regulation was adopted in 2008 and is
4
intended to reduce amounts of diesel particulate matter (“PM”)
5
and oxides of nitrogen (“NOx”) emissions from diesel-fueled
6
trucks and buses operating within the state.
7
1:6-8; 3:3-5.2
8
California’s plan to satisfy national air quality standards set
9
by the federal Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq.
ARB Opposition,
The Regulation was adopted as part of
10
Over eighty-percent of California’s nearly one million
11
heavy-duty trucks are fueled by diesel, and those diesel-fueled
12
vehicles are the largest source of PM and NOx emissions in
13
California.
14
“contribute to ambient levels of PM composed of particles 2.5
15
microns or less in diameter,” which cause a variety of health
16
problems, up to and including death.
17
a “precursor to ozone,” exposure to which carries its own health
18
risks.
19
Id., 2:5-9.
According to the ARB, those emissions
Id., 2:12-16.
NOx is also
Id., 2:17-19.
The Regulation combats these emissions in two ways.
First,
20
covered vehicles are required to have diesel particulate filters
21
installed to reduce PM emissions.
22
the applicable regulatory deadlines, older trucks will need to
23
either be retrofitted with filters or have their engines replaced
24
with model year 2007 or newer engines, engines that are already
25
equipped with updated filtering technology.
Id., 3:13-14.
Accordingly, by
Id., 3:14-17.
26
27
28
2
Many of these relatively undisputed facts are repeated in
multiple filings. Where appropriate for convenience, however,
the Court limits citations to one source.
3
1
In addition, all engines will have to be upgraded to model year
2
2010 engines (or engines with equal or lower emissions) by
3
separate regulatory deadlines.
4
a chart helpful in illustrating the compliance schedule:
5
Id., 3:17-19.
The NRDC provided
Engine Model Year Schedule
6
Engine Year
7
Pre-1994
No requirements until 2015, then 2010 engine
8
1994-95
No requirements until 2016, then 2010 engine
9
1996-99
PM filter from 2012 to 2020, then 2010 engine
10
2000-04
PM filter from 2013 to 2021, then 2010 engine
11
2005-06
PM filter from 2014 to 2022, then 2010 engine
12
2007-09
No requirements until 2023, then 2010 engine
2010
Requirement from January 1, 2012
13
Meets final requirements
14
15
16
NRDC Opposition, 4:3-12.
Accordingly, most heavy-duty trucks must have filters
17
installed by 2014.
18
heavy-duty truck engines must be replaced with model year 2010
19
engines by 2023.
20
effective in 2012, then, is that fleets of trucks with 1996 to
21
1999 model year engines must install the requisite filters.
22
4:2-4.
23
can nonetheless be delayed under certain provisions of the Rule.
24
Id., 4:4-10.
25
programs available to help truck owners bring their vehicles into
26
compliance.
27
recession, the ARB amended the Regulation last year specifically
28
to reduce compliance costs.
ARB Opposition, 3:20-21.
Id., 3:22-24.
Similarly, all
The only real requirement
Id.,
Compliance with the Regulation even as to these trucks
In addition, there are grants and loan assistance
Id., 4:11-21.
In fact, in response to the national
Id., 3:5-7.
4
1
Accordingly, while it is estimated that the Regulation will cost
2
$1.5 billion over the first five years of its implementation and
3
$2.2 billion over the Rule’s life, NRDC Opposition, 4:27-28, the
4
amendments are expected to reduce compliance costs by fifty to
5
sixty percent.
6
Id., 3:8-10.
CDTOA is a trade association representing nearly 1,000
7
trucking companies “whose business constitutes over 75% of the
8
hauling of dirt, rock, sand, and gravel operations in
9
California.”
Motion, 1:10-13.
CDTOA contends that “[v]irtually
10
all of the trucks owned and operated by CDTOA members are subject
11
to the [Regulation]” and that the Rule “imposes steep fines and
12
penalties on anyone who operates their trucks in violation of the
13
[R]egulation.”
14
however, retrofitting the covered trucks is prohibitively
15
expensive for many of its members and makes the vehicles less
16
efficient, more prone to breakdowns, and harder to resell.
17
¶¶ 7-11.
18
its members will suffer irreparable harm, “including...loss
19
of...businesses and livelihoods, which in turn will proximately
20
cause some members to be at risk of losing their trucks, homes,
21
cars, and the ability to purchase the basic necessities of life.”
22
Id., ¶ 20.
23
Id., 2:16-18; 2:26-3:2.
According to the CDTOA,
FAC,
CDTOA thus contends that if the Regulation is enforced,
Indeed, according to the CDTOA, its members’ primary source
24
of livelihood is their diesel-powered trucks.
25
Members anticipate utilizing their trucks for decades, and they
26
purchase those trucks via conditional sales contracts typically
27
extending five or six years.
28
///
Id., 3:4-5.
5
Motion, 3:3-4.
1
The diesel trucks at issue here typically cost at least $130,000,
2
and can easily cost over $210,000.
3
run around fifteen to twenty percent.
4
Id., 3:5-7.
Finance charges
Id., 3:5-6.
The available technology necessary to retrofit CDTOA
5
members’ trucks in compliance with the Regulation, however, costs
6
at least $18,000 per truck.
7
its members cannot afford to pay these types of compliance costs,
8
and that, especially in light of the other economic factors
9
currently affecting the construction industry, if forced to
Id., 3:10-12.
CDTOA contends that
10
either comply or cease operations, those members will likely lose
11
their businesses.
12
least, its members will be forced to make tough business
13
decisions prior to resolution of the parties’ dispositive
14
motions.
15
have to decide whether to lay off employees or to sell older
16
trucks to subsidize the cost of future compliance with the
17
Regulation.
18
(“Wipf Decl.”), Mike Parigini (“Parigini Decl.”), Jed Kern (“Kern
19
Decl.”) and Tom Santoro (“Santoro Decl.”)).
20
contends its members will have to raise prices or reduce services
21
in order to ensure compliance with the Regulation to counter the
22
increase in costs.
23
¶ 5); 5:14-17 (citing Parigini Decl., ¶ 5); 6:3-8 (citing Kern
24
Decl., ¶ 6); 6:18-21 (citing Santoro Decl., ¶ 5); 9:2-9.
25
///
26
///
27
///
28
///
Id., 4:9.
Id., 3:12-4:6.
CDTOA claims that, at the very
For example, CDTOA members allege they may
Id., 4:9-6:21 (citing Declarations of Ernie Wipf
Likewise, CDTOA
See, e.g., id., 4:19-20 (citing Wipf Decl.,
6
1
Accordingly, given the impending deadlines imposed by the
2
Regulation and the grave consequences CDTOA alleges will befall
3
its members if the Rule is enforced, CDTOA initiated this action
4
alleging the Regulation is preempted by the Federal Aviation
5
Administration Authorization Act of 1994 (“FAAAA”), 49 U.S.C.
6
§ 14501(c)(1), pursuant to the Supremacy Clause of Article VI of
7
the United States Constitution.
8
preliminarily enjoin enforcement of the Regulation while the
9
parties’ dispositive motions are pending.
10
CDTOA now asks this Court to
For the following
reasons, Plaintiff’s Motion is DENIED.
11
STANDARD
12
13
14
The party requesting preliminary injunctive relief must show
15
that “he is likely to succeed on the merits, that he is likely to
16
suffer irreparable harm in the absence of preliminary relief,
17
that the balance of equities tips in his favor, and that an
18
injunction is in the public interest.”
19
Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc.
20
v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).
21
injunctive relief, harm must not only be irreparable, it must be
22
imminent; establishing a threat of irreparable harm in the
23
indefinite future is not enough.”
24
Inc. v. Eli Lilly and Co., 2011 WL 5126999, *3 (9th Cir.).
25
///
26
///
27
///
28
///
7
Winter v. Natural
“To support
Amylin Pharmaceuticals,
1
Alternatively, under the so-called sliding scale approach,
2
as long as the Plaintiff demonstrates the requisite likelihood of
3
irreparable harm and shows that an injunction is in the public
4
interest, a preliminary injunction can still issue so long as
5
serious questions going to the merits are raised and the balance
6
of hardships tips sharply in Plaintiff’s favor.
7
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011)
8
(concluding that the “serious questions” version of the sliding
9
scale test for preliminary injunctions remains viable after
10
Alliance for
Winter).
11
ANALYSIS
12
A.
13
Likelihood of Success on the Merits
14
15
Through the instant action, CDTOA argues the Regulation is
16
preempted by the FAAAA because the Rule attempts to impermissibly
17
regulate in an area “related to a price, route, or service of a
18
motor carrier...with respect to the transportation of property,”
19
in violation of 49 U.S.C. § 14501(c)(1).
20
contend CDTOA’s argument is flawed because any effect the
21
Regulation has on CDTOA members’ prices, routes or services is
22
too attenuated to justify preemption under that section.
23
addition, even if the Court were to find the Regulation preempted
24
under Section 14501(c)(1), it is the ARB’s and the NRDC’s
25
position that the Rule is saved by a statutory “safety exception”
26
codified in 49 U.S.C. § 14501(c)(2).
27
///
28
///
8
The ARB and the NRDC
In
1
This Court now finds that CDTOA has failed to show a likelihood
2
of success on the merits of its claim that the Regulation is
3
preempted by the FAAAA, 49 U.S.C. § 14501(c)(1).
4
the Court need not reach the parties’ dispute regarding the
5
safety exception, and CDTOA’s Motion is DENIED.3
Accordingly,
6
Resolution of the preemption issue “commence[s] with the
7
assumption that state laws dealing with matters traditionally
8
within a state’s police powers are not to be preempted unless
9
Congress’s intent to do so is clear and manifest.”
Californians
10
for Safe and Competitive Dump Truck Transportation v. Mendonca
11
(“Mendonca”), 152 F.3d 1184, 1186 (9th Cir. 1998) (citing Rice v.
12
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
13
prevention of air pollution falls within the states’ traditional
14
police powers.
15
639 F.3d 1154, 1167 (9th Cir. 2011).
16
case is whether Congress exhibited a clear and manifest intent to
17
preempt” the Regulation.
18
The
Pacific Merchant Shipping Ass’n v. Goldstene,
“Thus, the crux of this
Mendonca, 152 F.3d at 1187.
“On January 1, 1995, Section 601 of the [FAAAA] became
19
federal law.
20
range of state regulation of intrastate motor carriage.”
21
relevant here, the FAAAA provides:
22
23
24
As a general matter, this section preempts a wide
Id.
As
[A] State...may not enact or enforce a law, regulation,
or other provision having the force and effect of law
related to a price, route, or service of any motor
carrier...with respect to the transportation of
property.
25
3
26
27
28
The NRDC also argues that the Regulation cannot be
preempted by the FAAAA because such preemption would result in
the implied repeal of the CAA. NRDC Opposition, 6:5-11:16.
Because the Court finds CDTOA is unlikely to succeed on the
merits of its statutory preemption argument, however, it need not
reach this additional issue.
9
1
49 U.S.C. § 14501(c)(1) (emphasis added).
Congress enacted this
2
preemption provision because it “believed that across-the-board
3
deregulation was in the public interest as well as necessary to
4
eliminate non-uniform state regulations of motor carriers which
5
had caused ‘significant inefficiencies, increased costs,
6
reduction of competition, inhibition of innovation and
7
technology, and curtail[ed] the expansion of markets.’” Mendonca,
8
152 F.3d at 1187 (quoting H.R. Conf. Rep. No. 103-677 at 86-8
9
(1994)).
In addition, “by enacting a preemption provision
10
identical to an existing provision deregulating air carriers (the
11
Airline Deregulation Act (‘ADA’)), Congress sought to ‘even the
12
playing field’ between air carriers and motor carriers.”
13
Id.4
The Supreme Court in Rowe v. New Hampshire Motor Transport
14
Ass’n, 552 U.S. 364 (2008), subsequently considered the reach of
15
the FAAAA’s preemption clause.
16
enforcement actions having a connection with, or reference to
17
carrier rates, routes, or services are pre-empted; (2)...such
18
pre-emption may occur even if a state law’s effect on rates,
19
routes or services is only indirect; (3)...in respect to
20
preemption, it makes no difference whether a state law is
21
‘consistent’ or ‘inconsistent’ with federal regulation; and
According to Rowe, “(1)...[s]tate
22
23
24
25
26
27
28
4
The imbalance alluded to here “arose out of [the Ninth
Circuit’s] decision in Federal Express Corp. v. California Pub.
Utils. Comm’n, 936 F.2d 1075 (9th Cir. 1991). By holding that
Federal Express fit within the ADA’s definition of ‘air carrier,’
[that] court concluded that California’s intrastate economic
regulations of the carrier’s shipping activities were preempted.
As a result, air-based shippers gained a sizeable advantage over
their more regulated, ground-based shipping competitors. By
preempting the states’ authority to regulate motor carriers,
Congress sought to balance the regulatory ‘inequity’ produced by
the ADA’s preemption of the states’ authority to regulate air
carriers.” Id.
10
1
(4)...preemption occurs at least where state laws have a
2
‘significant impact’ related to Congress’ deregulatory and
3
preemption-related objectives.”
4
citations and quotations omitted) (emphasis omitted).
5
Court recognized “Congress’ overarching goal as helping assure
6
transportation rates, routes, and services that reflect ‘maximum
7
reliance on competitive market forces,’ thereby stimulating
8
‘efficiency, innovation, and low prices,’ as well as ‘variety’
9
and ‘quality.’”
552 U.S. at 370 (internal
Id. (internal citations omitted).
The Rowe
That Court
10
nonetheless observed that “federal law might not pre-empt state
11
laws that affect fares in only a ‘tenuous, remote, or
12
peripheral...manner.’”
13
Id. (internal citations omitted).
The line at which a particular regulation crosses from
14
impermissibly relating to carrier prices, routes, or services,
15
and becomes “tenuous, remote, or peripheral,” remains unclear,
16
though the Ninth Circuit recently provided guidance on the issue:
17
The terms “rates, routes, and services” were “used by
Congress in the public utility sense; that is, service
refers to such things as the frequency and scheduling
of transportation, and to the selection of markets to
or from which transportation is provided....Rates
indicates price; routes refers to courses of travel.”
Air Transport Ass’n of Am. v. City & Cnty. of San
Francisco, 266 F.3d 1064, 1071 (9th Cir. 2001)
(internal quotation marks, citations, and alterations
omitted); see also Rowe, 552 U.S. at 372-73 (describing
a motor carrier’s services as its system for picking
up, sorting, and carrying goods).
18
19
20
21
22
23
24
25
26
In determining whether a provision has a connection to
rates, routes, or services, we must examine the actual
or likely effect of a State’s action. Cf. Cal. Div. of
Labor Standards Enforcement v. Dillingham Constr. NA,
Inc., 519 U.S. 316, 325 (1997); Californians for Safe &
Competitive Dump Truck Transp. v. Mendonca, 152 F.3d
1184, 1189 (9th Cir. 1998).
27
28
11
1
If the State, for example, mandates that motor carriers
provide a particular service to customers, or forbids
them to serve certain potential customers, the effect
is clear, and the provision is preempted if it has the
force and effect of law. See Rowe, 552 U.S. at 372-73;
Morales [v. Trans World Airlines, Inc., 504 U.S. 374,
388-89 (1992)] (noting that advertising guidelines
expressly referenced rates and had a forbidden
significant effect on the fares charged). The waters
are murkier, though, when a State does not directly
regulate (or even specifically reference) rates,
routes, or services. We recognize that FAAA Act “preemption may occur even if a [S]tate law’s effect on
rates, routes, and services ‘is only indirect.’” Rowe,
552 U.S. at 370 (quoting Morales, 504 U.S. at 386). At
the same time, we require that the effect on rates,
routes or services be more than “tenuous” or “remote.”
Id. at 371 (quoting Morales, 504 U.S. at 390).
2
3
4
5
6
7
8
9
10
In such a “borderline” case, the proper inquiry is
whether the provision directly or indirectly, “binds
the ...carrier to a particular price, route or service
and thereby interferes with competitive market forces
within the...industry.” Air Transport, 266 F.3d at
1072; cf. Am. Airlines, Inc. v. Wolens, 513 U.S. 219,
232-33 (1995) (holding that the Airline Deregulation
Act’s preemption clause “stops States from imposing
their own substantive standards with respect to rates,
routes, or services” but does not prevent States from
enforcing dispute resolution provisions in contracts
signed by airlines); Mendonca, 152 F.3d at 1189
(holding that a State minimum wage statute did not
affect rates, routes or services).
11
12
13
14
15
16
17
18
American Trucking Associations, Inc. v. City of Los Angeles,
19
660 F.3d 384, 396-97 (9th Cir. 2011) (internal footnotes
20
omitted).
21
For its part, CDTOA thus argues that the cost of compliance
22
with the Regulation is so great that, to compensate, CDTOA
23
members will be required to increase prices or decrease service
24
levels.
25
them out of business, and CDTOA believes the ARB’s own estimate
26
that the Regulation will cost the industry $2.2 billion evidences
27
the impact the rule will have on carrier prices.
28
///
Some operators believe the cost of compliance will force
12
1
Various truck owners also aver that reduction in fleet sizes will
2
reduce the level of services they can provide customers.
3
Finally, CDTOA argues that the Regulation will affect existing
4
routes because “the available retrofit technology limits the
5
length of time trucks can run continuously” so that CDTOA members
6
will likely have to alter routes to accommodate for their trucks’
7
more limited operational capacity.
8
The ARB and NRDC argue, to the contrary, that any
9
relationship between the Regulation and CDTOA’s members’ prices,
10
routes or services is “remote, tenuous, and peripheral” at best.
11
More specifically, they assert that: 1) cost increases alone are
12
insufficient to warrant a finding that the instant Rule is
13
impermissibly “related to” carrier “prices”; 2) the Regulation
14
does not bind motor carriers to any particular services; and
15
3) CDTOA has put on insufficient evidence that the technology
16
required under the Regulation impacts trucks’ functionality or,
17
consequently, the routes on which those vehicles can travel.
18
ARB and the NRDC have the better argument, and, for purposes of
19
the instant Motion, the CDTOA has not convinced this Court that
20
the effect of the Regulation on its members’ prices, services or
21
routes is anything other than “tenuous” or “remote” or that the
22
rule somehow “binds” carriers “to a particular price, route or
23
service” thereby interfering with competitive market forces.
24
First, in Mendonca, the Ninth Circuit rejected an FAAAA
25
preemption challenge to California’s Prevailing Wage Law,
26
California Labor Code §§ 1770-80 (“CPWL”), that is similar in
27
principle to CDTOA’s instant challenge.
28
///
13
152 F.3d 1184.
The
1
In that case, the plaintiffs, public works contractors providing
2
transportation-related services, filed suit against several
3
California agencies alleging that the CPWL, which required
4
contractors and subcontractors awarded public works contracts to
5
pay “not less than the general prevailing rate...for work of a
6
similar character in the locality in which the public work is
7
performed,” was preempted by the FAAAA.
8
Circuit affirmed the district court’s decision granting the
9
defendants’ subsequent motion to dismiss and holding that the
10
CPWL was not preempted.
11
Id. at 1186.
The Ninth
Id. at 1186, 1190.
As pertinent here, the Mendonca plaintiffs argued that their
12
prices were dependent, in part, on wage rates and that the CPWL
13
wage requirements there had both increased plaintiffs’ prices by
14
25% and forced plaintiffs to “re-direct and re-route equipment”
15
to compensate for losses in revenue.
16
Circuit acknowledged that, “[w]hile CPWL in a certain sense [was]
17
‘related to’ [plaintiffs’] prices, routes and services,...the
18
effect [was] no more than indirect, remote, and tenuous.”
19
The CPWL was thus not “related to” the plaintiffs’ prices,
20
routes, and services as intended by the FAAAA, and, despite
21
plaintiffs’ allegations that the CPWL increased their wage costs
22
and thus forced plaintiffs to dramatically increase their prices,
23
the Ninth Circuit found the effect on “prices” too attenuated to
24
hold the CPWL preempted.
25
///
26
///
27
///
28
///
Id.
14
Id. at 1189.
The Ninth
Id.
1
Plaintiff’s action before this Court is on par with
2
Mendonca. Indeed, Plaintiff’s primary basis for claiming the
3
Regulation is related to prices is that the costs of compliance
4
are so exorbitant Plaintiff will have no viable alternative other
5
than to raise prices.
6
Regulation may be “in a certain sense” related to CDTOA members’
7
prices, that relationship is likely insufficient to warrant a
8
preemption finding here.
9
Pursuant to Mendonca, however, while the
In light of Mendonca, Plaintiff has likewise failed to
10
convince the Court it can show any more than a tenuous
11
relationship between the Regulation and any of its members’
12
“services.”
13
will force trucking companies to...lower the level of service
14
they provide.”
15
generally stated, that because costs of compliance are high, its
16
members will have to reduce the size of their fleets, thus
17
limiting the level of future service those members will be able
18
to provide.
19
of its members have already either dropped or anticipate dropping
20
their service levels “to nothing, by essentially going out of
21
business.”
22
insufficient to justify a preemption finding because nothing in
23
the Regulation actually “binds” Plaintiff’s members to make any
24
changes to their services.
25
///
26
///
27
///
28
///
According to Plaintiff, “[c]ompliance with the rule
Motion, 13:9-10.
Motion, 14:5-4.
Motion, 14:12-14.
Plaintiff’s argument is,
In fact, CDTOA contends that some
Plaintiff’s argument, however, is
15
1
To the contrary, at its most basic, Plaintiff’s service-
2
related argument is simply an incarnation of its above cost-based
3
“price” argument.
4
to comply with the Regulation is so high that business owners
5
will choose to reduce fleet sizes and, thus, to reduce services.
6
That is no different from CDTOA’s prior argument in which
7
Plaintiff claimed the cost to comply with the Regulation is so
8
high that business owners will choose to raise prices.
9
Accordingly, for the reasons already stated, and again pursuant
10
11
Plaintiff is essentially arguing that the cost
to Mendonca, this argument is rejected.
CDTOA disagrees and asks this Court to instead rely on the
12
district court decision in Dilts v. Penske, 2011 WL 4975520 (S.D.
13
Cal. 2011), to find the Regulation preempted.
14
however, is not only not binding on this Court, it is
15
distinguishable on its facts.
16
That case,
In Dilts, employees engaged in delivery services filed suit
17
against their employer alleging violation of California’s meal
18
and rest break laws.
19
they had not been provided the appropriate duty-free breaks.
20
Dilts court determined that “the length and timing of meal and
21
rest breaks seems directly and significantly related to such
22
things as the frequency and scheduling of transportation” because
23
the “laws impact the number of routes each [employee] may go on
24
each day,” “the types of roads ...[employees] may take and the
25
amount of time it takes them to reach their destination.”
26
at *9.
27
that case mandated that drivers stop at particular intervals
28
throughout the day.
Id. at *2.
According to the employees,
The
Id.
Accordingly, in very simple terms, the applicable laws in
16
1
During those intervals no services could be provided.
2
not the case here where the challenged rule instead simply
3
mandates the technology that must be utilized on the trucks.
4
choice to forego any service for any period of time is thus not
5
dictated by the Regulation; it is dictated by the owner or
6
operator of the vehicle.
7
therefore much more analogous to Mendonca’s prevailing wage laws,
8
which required an across the board wage increase, than to the
9
meal and rest break laws in Dilts.
10
Such is
The
The Regulation in the instant case is
Plaintiff’s final contention, that the Regulation will
11
affect routes, is also rejected.
12
technology required by the Regulation is unreliable, causing
13
breakdowns and fuel inefficiency, which will force carriers to
14
choose to employ different routes.
15
however, is speculative at best.
16
¶ 9 (indicating that “[a]nectdotal stories now abound within the
17
industry” regarding engine reliability and efficiency);
18
Declaration of Jay Pocock, ¶¶ 5-6 (recounting declarant’s
19
negative experience with one filter on one truck).
20
even assuming Plaintiff’s argument could justify a finding that
21
the Regulation more than tenuously or remotely affects its
22
members’ routes, which this Court doubts for the reasons already
23
stated, the Court is simply not willing to preliminarily enjoin a
24
state regulation on the basis of such scant evidence.
25
///
26
///
27
///
28
///
17
According to Plaintiff, the
Plaintiff’s evidence,
See Declaration of Lee Brown,
Accordingly,
1
Accordingly, CDTOA has not shown for purposes of the instant
2
Motion that it is likely to succeed on the merits, nor has it
3
raised substantial questions going to the merits, of its claim.5
4
5
B.
Likelihood of Irreparable Harm
6
7
Plaintiff has failed to carry its burden of showing that,
8
absent an injunction, its members will likely suffer the
9
requisite irreparable harm.
CDTOA alleges its members will be
10
required to spend thousands of dollars to bring their trucks or
11
fleets of trucks into compliance with the Regulation.
12
it is not seriously contested that only certain motor carriers
13
with model year 1996 to 1999 engines are required to employ
14
retrofit technology by January 1, 2012.
15
the NRDC point out that these carriers can utilize compliance
16
credits and delay provisions to reduce their immediate compliance
17
costs, in some cases to zero.
18
show its members will be irreparably injured or that any injury
19
is in any way “imminent.”
20
seeks is much too broad because, despite the fact that only
21
limited regulatory requirements go into effect in 2012, the CDTOA
22
asks this Court to enjoin enforcement of the Regulation in its
23
entirety.
However,
Moreover, the ARB and
Accordingly, CDTOA has failed to
Moreover, the injunctive relief CDTOA
Motion, 20:3-4.
24
25
26
27
28
5
Plaintiff’s remaining authority, American Trucking
Associations v. City of Los Angeles,559 F.3d 1046 (9th Cir. 2009)
(“ATA”), does not persuade this Court otherwise, primarily
because Plaintiff misconstrued its facts. When read properly,
that case has no real relevance to the decision facing this Court
now. Accordingly, this Court rejects CDTOA’s invitation to rely
on ATA.
18
1
Accordingly, CDTOA has failed to show that its various doomsday
2
predictions are imminently likely to come to fruition or that
3
injunctive relief, especially of the magnitude sought here, is
4
warranted.
5
6
C.
Balance of Hardships and the Public Interest
7
8
9
Given this Court’s above findings, the Court also now holds
that the public interest and the balance of hardships weigh in
10
favor of denying injunctive relief.
As just stated, the
11
hardships likely to befall CDTOA’s members in the immediate
12
future are speculative, appear somewhat exaggerated, and in no
13
sense do they outweigh the interest of the State of California in
14
enforcing its own rules or the interest of the public in reducing
15
emissions.
16
short of trial and that any injunction entered will consequently
17
be of short duration.
18
speculative; if it proves incorrect, any injunction could extend
19
much longer.
20
[the Court] can rule on whether the Regulation is preempted by
21
federal law”).
22
Regulation prior to the January 1, 2012, effective date and chose
23
not to do so until the relative last minute.
24
capitalize on that delay by awarding an injunction now would be
25
inequitable.
26
date would be unfair to those motor carriers who have already
27
undertaken compliance measures in advance of the Regulation’s
28
effective date.
Moreover, CDTOA assumes this case will be resolved
This assumption, however, is itself
See Motion, 10:16-18 (seeking an injunction “until
Finally, CDTOA had ample time to challenge the
To permit CDTOA to
Likewise, awarding injunctive relief at this late
19
1
Accordingly, the balance of hardships and the public interest
2
weigh against granting CDTOA’s requested relief.
3
CONCLUSION
4
5
6
7
8
Accordingly, for the reasons just stated, CDTOA’s Motion is
DENIED.
Dated: January 27, 2012
9
10
11
_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?