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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA DUMP TRUCK OWNERS
ASSOCIATION,

No. 2:11-cv-00384-MCE-GGH

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Plaintiff,

MEMORANDUM AND ORDER

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v.
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MARY D. NICHOLS, et al.,
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Defendants.
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----oo0oo----

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Presently before the Court is Plaintiff California Dump

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Truck Owners Association’s (“CDTOA” or “Plaintiff”) Motion for

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Preliminary Injunction (“Motion”).

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preliminarily enjoin enforcement of California’s “Regulation to

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Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen

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and Other Criteria Pollutants, from In-Use Heavy-Duty

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Diesel-Fueled Vehicles,” Cal. Code Regs. tit. 13, § 2025 (“the

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Regulation” or “the Rule”), by Mary D. Nichols, Chairperson of

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the California Air Resources Board, and James Goldstene,

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Executive Officer of the California Air Resources Board,

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(collectively “ARB”) on the basis that the Regulation is

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preempted by federal law.
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By its Motion, CDTOA seeks to

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The ARB and Defendant-Intervenor National Resources Defense

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Counsel (“NRDC”) opposed CDTOA’s Motion, and a hearing was held

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before this Court on December 15, 2011.

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reasons, Plaintiff’s Motion is DENIED.

For the following

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BACKGROUND

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A.

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Procedural Background

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CDTOA initiated this action on February 11, 2011, and filed

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its operative First Amended Complaint (“FAC”) on April 6, 2011.

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ECF Nos. 1 and 12.

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this Court granted NRDC leave to intervene as Defendant.

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No. 18.

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By Memorandum and Order dated May 20, 2011,
ECF

Just over one month later, CDTOA filed a motion for summary

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judgment, which it set for hearing on this Court’s September 6,

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2011 calendar.

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of the parties and the Order of this Court, hearing on the

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parties’ cross-motions for summary judgment was reset for

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January 26, 2012.1

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the Regulation was January 1, 2012, which is prior to the time

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the dispositive motions will be resolved, CDTOA filed the instant

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Motion seeking to temporarily enjoin enforcement of the Rule

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until such time as those summary judgment motions can be heard

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and decided.

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ECF No. 22, 25.

Per the subsequent stipulation

ECF Nos. 29-30.

Since the effective date of

Motion, 1:17-22.

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That hearing has since been continued to February 9, 2012.
ECF No. 53.
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B.

Factual Background

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The challenged Regulation was adopted in 2008 and is

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intended to reduce amounts of diesel particulate matter (“PM”)

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and oxides of nitrogen (“NOx”) emissions from diesel-fueled

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trucks and buses operating within the state.

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1:6-8; 3:3-5.2

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California’s plan to satisfy national air quality standards set

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by the federal Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq.

ARB Opposition,

The Regulation was adopted as part of

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Over eighty-percent of California’s nearly one million

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heavy-duty trucks are fueled by diesel, and those diesel-fueled

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vehicles are the largest source of PM and NOx emissions in

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California.

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“contribute to ambient levels of PM composed of particles 2.5

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microns or less in diameter,” which cause a variety of health

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problems, up to and including death.

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a “precursor to ozone,” exposure to which carries its own health

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risks.

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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,

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covered vehicles are required to have diesel particulate filters

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installed to reduce PM emissions.

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the applicable regulatory deadlines, older trucks will need to

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either be retrofitted with filters or have their engines replaced

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with model year 2007 or newer engines, engines that are already

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equipped with updated filtering technology.

Id., 3:13-14.

Accordingly, by

Id., 3:14-17.

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Many of these relatively undisputed facts are repeated in
multiple filings. Where appropriate for convenience, however,
the Court limits citations to one source.
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In addition, all engines will have to be upgraded to model year

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2010 engines (or engines with equal or lower emissions) by

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separate regulatory deadlines.

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a chart helpful in illustrating the compliance schedule:

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Id., 3:17-19.

The NRDC provided

Engine Model Year Schedule

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Engine Year

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Pre-1994

No requirements until 2015, then 2010 engine

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1994-95

No requirements until 2016, then 2010 engine

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1996-99

PM filter from 2012 to 2020, then 2010 engine

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2000-04

PM filter from 2013 to 2021, then 2010 engine

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2005-06

PM filter from 2014 to 2022, then 2010 engine

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2007-09

No requirements until 2023, then 2010 engine

2010

Requirement from January 1, 2012

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Meets final requirements

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NRDC Opposition, 4:3-12.
Accordingly, most heavy-duty trucks must have filters

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installed by 2014.

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heavy-duty truck engines must be replaced with model year 2010

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engines by 2023.

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effective in 2012, then, is that fleets of trucks with 1996 to

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1999 model year engines must install the requisite filters.

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4:2-4.

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can nonetheless be delayed under certain provisions of the Rule.

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Id., 4:4-10.

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programs available to help truck owners bring their vehicles into

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compliance.

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recession, the ARB amended the Regulation last year specifically

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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.
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Accordingly, while it is estimated that the Regulation will cost

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$1.5 billion over the first five years of its implementation and

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$2.2 billion over the Rule’s life, NRDC Opposition, 4:27-28, the

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amendments are expected to reduce compliance costs by fifty to

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sixty percent.

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Id., 3:8-10.

CDTOA is a trade association representing nearly 1,000

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trucking companies “whose business constitutes over 75% of the

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hauling of dirt, rock, sand, and gravel operations in

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California.”

Motion, 1:10-13.

CDTOA contends that “[v]irtually

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all of the trucks owned and operated by CDTOA members are subject

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to the [Regulation]” and that the Rule “imposes steep fines and

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penalties on anyone who operates their trucks in violation of the

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[R]egulation.”

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however, retrofitting the covered trucks is prohibitively

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expensive for many of its members and makes the vehicles less

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efficient, more prone to breakdowns, and harder to resell.

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¶¶ 7-11.

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its members will suffer irreparable harm, “including...loss

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of...businesses and livelihoods, which in turn will proximately

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cause some members to be at risk of losing their trucks, homes,

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cars, and the ability to purchase the basic necessities of life.”

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Id., ¶ 20.

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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

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of livelihood is their diesel-powered trucks.

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Members anticipate utilizing their trucks for decades, and they

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purchase those trucks via conditional sales contracts typically

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extending five or six years.

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Id., 3:4-5.

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Motion, 3:3-4.

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The diesel trucks at issue here typically cost at least $130,000,

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and can easily cost over $210,000.

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run around fifteen to twenty percent.

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Id., 3:5-7.

Finance charges

Id., 3:5-6.

The available technology necessary to retrofit CDTOA

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members’ trucks in compliance with the Regulation, however, costs

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at least $18,000 per truck.

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its members cannot afford to pay these types of compliance costs,

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and that, especially in light of the other economic factors

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currently affecting the construction industry, if forced to

Id., 3:10-12.

CDTOA contends that

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either comply or cease operations, those members will likely lose

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their businesses.

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least, its members will be forced to make tough business

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decisions prior to resolution of the parties’ dispositive

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motions.

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have to decide whether to lay off employees or to sell older

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trucks to subsidize the cost of future compliance with the

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Regulation.

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(“Wipf Decl.”), Mike Parigini (“Parigini Decl.”), Jed Kern (“Kern

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Decl.”) and Tom Santoro (“Santoro Decl.”)).

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contends its members will have to raise prices or reduce services

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in order to ensure compliance with the Regulation to counter the

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increase in costs.

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¶ 5); 5:14-17 (citing Parigini Decl., ¶ 5); 6:3-8 (citing Kern

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Decl., ¶ 6); 6:18-21 (citing Santoro Decl., ¶ 5); 9:2-9.

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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.,

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Accordingly, given the impending deadlines imposed by the

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Regulation and the grave consequences CDTOA alleges will befall

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its members if the Rule is enforced, CDTOA initiated this action

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alleging the Regulation is preempted by the Federal Aviation

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Administration Authorization Act of 1994 (“FAAAA”), 49 U.S.C.

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§ 14501(c)(1), pursuant to the Supremacy Clause of Article VI of

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the United States Constitution.

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preliminarily enjoin enforcement of the Regulation while the

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parties’ dispositive motions are pending.

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CDTOA now asks this Court to

For the following

reasons, Plaintiff’s Motion is DENIED.

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STANDARD

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The party requesting preliminary injunctive relief must show

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that “he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an

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injunction is in the public interest.”

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Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc.

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v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

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injunctive relief, harm must not only be irreparable, it must be

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imminent; establishing a threat of irreparable harm in the

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indefinite future is not enough.”

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Inc. v. Eli Lilly and Co., 2011 WL 5126999, *3 (9th Cir.).

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Winter v. Natural

“To support

Amylin Pharmaceuticals,

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Alternatively, under the so-called sliding scale approach,

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as long as the Plaintiff demonstrates the requisite likelihood of

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irreparable harm and shows that an injunction is in the public

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interest, a preliminary injunction can still issue so long as

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serious questions going to the merits are raised and the balance

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of hardships tips sharply in Plaintiff’s favor.

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011)

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(concluding that the “serious questions” version of the sliding

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scale test for preliminary injunctions remains viable after

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Alliance for

Winter).

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ANALYSIS

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A.

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Likelihood of Success on the Merits

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Through the instant action, CDTOA argues the Regulation is

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preempted by the FAAAA because the Rule attempts to impermissibly

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regulate in an area “related to a price, route, or service of a

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motor carrier...with respect to the transportation of property,”

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in violation of 49 U.S.C. § 14501(c)(1).

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contend CDTOA’s argument is flawed because any effect the

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Regulation has on CDTOA members’ prices, routes or services is

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too attenuated to justify preemption under that section.

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addition, even if the Court were to find the Regulation preempted

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under Section 14501(c)(1), it is the ARB’s and the NRDC’s

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position that the Rule is saved by a statutory “safety exception”

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codified in 49 U.S.C. § 14501(c)(2).

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The ARB and the NRDC

In

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This Court now finds that CDTOA has failed to show a likelihood

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of success on the merits of its claim that the Regulation is

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preempted by the FAAAA, 49 U.S.C. § 14501(c)(1).

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the Court need not reach the parties’ dispute regarding the

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safety exception, and CDTOA’s Motion is DENIED.3

Accordingly,

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Resolution of the preemption issue “commence[s] with the

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assumption that state laws dealing with matters traditionally

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within a state’s police powers are not to be preempted unless

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Congress’s intent to do so is clear and manifest.”

Californians

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for Safe and Competitive Dump Truck Transportation v. Mendonca

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(“Mendonca”), 152 F.3d 1184, 1186 (9th Cir. 1998) (citing Rice v.

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Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

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prevention of air pollution falls within the states’ traditional

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police powers.

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639 F.3d 1154, 1167 (9th Cir. 2011).

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case is whether Congress exhibited a clear and manifest intent to

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preempt” the Regulation.

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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

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federal law.

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range of state regulation of intrastate motor carriage.”

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relevant here, the FAAAA provides:

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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.

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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.
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49 U.S.C. § 14501(c)(1) (emphasis added).

Congress enacted this

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preemption provision because it “believed that across-the-board

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deregulation was in the public interest as well as necessary to

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eliminate non-uniform state regulations of motor carriers which

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had caused ‘significant inefficiencies, increased costs,

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reduction of competition, inhibition of innovation and

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technology, and curtail[ed] the expansion of markets.’” Mendonca,

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152 F.3d at 1187 (quoting H.R. Conf. Rep. No. 103-677 at 86-8

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(1994)).

In addition, “by enacting a preemption provision

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identical to an existing provision deregulating air carriers (the

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Airline Deregulation Act (‘ADA’)), Congress sought to ‘even the

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playing field’ between air carriers and motor carriers.”

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Id.4

The Supreme Court in Rowe v. New Hampshire Motor Transport

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Ass’n, 552 U.S. 364 (2008), subsequently considered the reach of

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the FAAAA’s preemption clause.

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enforcement actions having a connection with, or reference to

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carrier rates, routes, or services are pre-empted; (2)...such

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pre-emption may occur even if a state law’s effect on rates,

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routes or services is only indirect; (3)...in respect to

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preemption, it makes no difference whether a state law is

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‘consistent’ or ‘inconsistent’ with federal regulation; and

According to Rowe, “(1)...[s]tate

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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.

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(4)...preemption occurs at least where state laws have a

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‘significant impact’ related to Congress’ deregulatory and

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preemption-related objectives.”

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citations and quotations omitted) (emphasis omitted).

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Court recognized “Congress’ overarching goal as helping assure

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transportation rates, routes, and services that reflect ‘maximum

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reliance on competitive market forces,’ thereby stimulating

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‘efficiency, innovation, and low prices,’ as well as ‘variety’

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and ‘quality.’”

552 U.S. at 370 (internal

Id. (internal citations omitted).

The Rowe

That Court

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nonetheless observed that “federal law might not pre-empt state

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laws that affect fares in only a ‘tenuous, remote, or

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peripheral...manner.’”

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Id. (internal citations omitted).

The line at which a particular regulation crosses from

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impermissibly relating to carrier prices, routes, or services,

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and becomes “tenuous, remote, or peripheral,” remains unclear,

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though the Ninth Circuit recently provided guidance on the issue:

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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).

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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).

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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).

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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).

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American Trucking Associations, Inc. v. City of Los Angeles,

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660 F.3d 384, 396-97 (9th Cir. 2011) (internal footnotes

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omitted).

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For its part, CDTOA thus argues that the cost of compliance

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with the Regulation is so great that, to compensate, CDTOA

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members will be required to increase prices or decrease service

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levels.

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them out of business, and CDTOA believes the ARB’s own estimate

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that the Regulation will cost the industry $2.2 billion evidences

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the impact the rule will have on carrier prices.

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Some operators believe the cost of compliance will force

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Various truck owners also aver that reduction in fleet sizes will

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reduce the level of services they can provide customers.

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Finally, CDTOA argues that the Regulation will affect existing

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routes because “the available retrofit technology limits the

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length of time trucks can run continuously” so that CDTOA members

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will likely have to alter routes to accommodate for their trucks’

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more limited operational capacity.

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The ARB and NRDC argue, to the contrary, that any

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relationship between the Regulation and CDTOA’s members’ prices,

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routes or services is “remote, tenuous, and peripheral” at best.

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More specifically, they assert that: 1) cost increases alone are

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insufficient to warrant a finding that the instant Rule is

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impermissibly “related to” carrier “prices”; 2) the Regulation

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does not bind motor carriers to any particular services; and

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3) CDTOA has put on insufficient evidence that the technology

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required under the Regulation impacts trucks’ functionality or,

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consequently, the routes on which those vehicles can travel.

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ARB and the NRDC have the better argument, and, for purposes of

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the instant Motion, the CDTOA has not convinced this Court that

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the effect of the Regulation on its members’ prices, services or

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routes is anything other than “tenuous” or “remote” or that the

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rule somehow “binds” carriers “to a particular price, route or

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service” thereby interfering with competitive market forces.

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First, in Mendonca, the Ninth Circuit rejected an FAAAA

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preemption challenge to California’s Prevailing Wage Law,

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California Labor Code §§ 1770-80 (“CPWL”), that is similar in

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principle to CDTOA’s instant challenge.

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152 F.3d 1184.

The

1

In that case, the plaintiffs, public works contractors providing

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transportation-related services, filed suit against several

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California agencies alleging that the CPWL, which required

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contractors and subcontractors awarded public works contracts to

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pay “not less than the general prevailing rate...for work of a

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similar character in the locality in which the public work is

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performed,” was preempted by the FAAAA.

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Circuit affirmed the district court’s decision granting the

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defendants’ subsequent motion to dismiss and holding that the

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CPWL was not preempted.

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Id. at 1186.

The Ninth

Id. at 1186, 1190.

As pertinent here, the Mendonca plaintiffs argued that their

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prices were dependent, in part, on wage rates and that the CPWL

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wage requirements there had both increased plaintiffs’ prices by

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25% and forced plaintiffs to “re-direct and re-route equipment”

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to compensate for losses in revenue.

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Circuit acknowledged that, “[w]hile CPWL in a certain sense [was]

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‘related to’ [plaintiffs’] prices, routes and services,...the

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effect [was] no more than indirect, remote, and tenuous.”

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The CPWL was thus not “related to” the plaintiffs’ prices,

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routes, and services as intended by the FAAAA, and, despite

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plaintiffs’ allegations that the CPWL increased their wage costs

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and thus forced plaintiffs to dramatically increase their prices,

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the Ninth Circuit found the effect on “prices” too attenuated to

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hold the CPWL preempted.

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Id.

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Id. at 1189.

The Ninth

Id.

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Plaintiff’s action before this Court is on par with

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Mendonca. Indeed, Plaintiff’s primary basis for claiming the

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Regulation is related to prices is that the costs of compliance

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are so exorbitant Plaintiff will have no viable alternative other

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than to raise prices.

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Regulation may be “in a certain sense” related to CDTOA members’

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prices, that relationship is likely insufficient to warrant a

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preemption finding here.

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Pursuant to Mendonca, however, while the

In light of Mendonca, Plaintiff has likewise failed to

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convince the Court it can show any more than a tenuous

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relationship between the Regulation and any of its members’

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“services.”

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will force trucking companies to...lower the level of service

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they provide.”

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generally stated, that because costs of compliance are high, its

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members will have to reduce the size of their fleets, thus

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limiting the level of future service those members will be able

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to provide.

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of its members have already either dropped or anticipate dropping

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their service levels “to nothing, by essentially going out of

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business.”

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insufficient to justify a preemption finding because nothing in

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the Regulation actually “binds” Plaintiff’s members to make any

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changes to their services.

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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

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1

To the contrary, at its most basic, Plaintiff’s service-

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related argument is simply an incarnation of its above cost-based

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“price” argument.

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to comply with the Regulation is so high that business owners

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will choose to reduce fleet sizes and, thus, to reduce services.

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That is no different from CDTOA’s prior argument in which

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Plaintiff claimed the cost to comply with the Regulation is so

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high that business owners will choose to raise prices.

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Accordingly, for the reasons already stated, and again pursuant

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Plaintiff is essentially arguing that the cost

to Mendonca, this argument is rejected.
CDTOA disagrees and asks this Court to instead rely on the

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district court decision in Dilts v. Penske, 2011 WL 4975520 (S.D.

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Cal. 2011), to find the Regulation preempted.

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however, is not only not binding on this Court, it is

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distinguishable on its facts.

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That case,

In Dilts, employees engaged in delivery services filed suit

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against their employer alleging violation of California’s meal

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and rest break laws.

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they had not been provided the appropriate duty-free breaks.

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Dilts court determined that “the length and timing of meal and

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rest breaks seems directly and significantly related to such

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things as the frequency and scheduling of transportation” because

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the “laws impact the number of routes each [employee] may go on

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each day,” “the types of roads ...[employees] may take and the

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amount of time it takes them to reach their destination.”

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at *9.

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that case mandated that drivers stop at particular intervals

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throughout the day.

Id. at *2.

According to the employees,
The

Id.

Accordingly, in very simple terms, the applicable laws in

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1

During those intervals no services could be provided.

2

not the case here where the challenged rule instead simply

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mandates the technology that must be utilized on the trucks.

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choice to forego any service for any period of time is thus not

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dictated by the Regulation; it is dictated by the owner or

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operator of the vehicle.

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therefore much more analogous to Mendonca’s prevailing wage laws,

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which required an across the board wage increase, than to the

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meal and rest break laws in Dilts.

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Such is

The

The Regulation in the instant case is

Plaintiff’s final contention, that the Regulation will

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affect routes, is also rejected.

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technology required by the Regulation is unreliable, causing

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breakdowns and fuel inefficiency, which will force carriers to

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choose to employ different routes.

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however, is speculative at best.

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¶ 9 (indicating that “[a]nectdotal stories now abound within the

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industry” regarding engine reliability and efficiency);

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Declaration of Jay Pocock, ¶¶ 5-6 (recounting declarant’s

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negative experience with one filter on one truck).

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even assuming Plaintiff’s argument could justify a finding that

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the Regulation more than tenuously or remotely affects its

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members’ routes, which this Court doubts for the reasons already

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stated, the Court is simply not willing to preliminarily enjoin a

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state regulation on the basis of such scant evidence.

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///

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///

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///

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///
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According to Plaintiff, the

Plaintiff’s evidence,
See Declaration of Lee Brown,

Accordingly,

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Accordingly, CDTOA has not shown for purposes of the instant

2

Motion that it is likely to succeed on the merits, nor has it

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raised substantial questions going to the merits, of its claim.5

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5

B.

Likelihood of Irreparable Harm

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7

Plaintiff has failed to carry its burden of showing that,

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absent an injunction, its members will likely suffer the

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requisite irreparable harm.

CDTOA alleges its members will be

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required to spend thousands of dollars to bring their trucks or

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fleets of trucks into compliance with the Regulation.

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it is not seriously contested that only certain motor carriers

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with model year 1996 to 1999 engines are required to employ

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retrofit technology by January 1, 2012.

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the NRDC point out that these carriers can utilize compliance

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credits and delay provisions to reduce their immediate compliance

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costs, in some cases to zero.

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show its members will be irreparably injured or that any injury

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is in any way “imminent.”

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seeks is much too broad because, despite the fact that only

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limited regulatory requirements go into effect in 2012, the CDTOA

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asks this Court to enjoin enforcement of the Regulation in its

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entirety.

However,

Moreover, the ARB and

Accordingly, CDTOA has failed to

Moreover, the injunctive relief CDTOA

Motion, 20:3-4.

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25
26
27
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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.

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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

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warranted.

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6

C.

Balance of Hardships and the Public Interest

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8
9

Given this Court’s above findings, the Court also now holds
that the public interest and the balance of hardships weigh in

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favor of denying injunctive relief.

As just stated, the

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hardships likely to befall CDTOA’s members in the immediate

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future are speculative, appear somewhat exaggerated, and in no

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sense do they outweigh the interest of the State of California in

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enforcing its own rules or the interest of the public in reducing

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emissions.

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short of trial and that any injunction entered will consequently

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be of short duration.

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speculative; if it proves incorrect, any injunction could extend

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much longer.

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[the Court] can rule on whether the Regulation is preempted by

21

federal law”).

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Regulation prior to the January 1, 2012, effective date and chose

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not to do so until the relative last minute.

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capitalize on that delay by awarding an injunction now would be

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inequitable.

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date would be unfair to those motor carriers who have already

27

undertaken compliance measures in advance of the Regulation’s

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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

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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