California Dump Truck Owners Association v. Air Resources Board

Filing 61

ORDER signed by Judge Morrison C. England, Jr. on 5/30/2012 ORDERING that not later than Thursday, 6/14/2012, Defendants and NRDC shall file Supplemental Briefs, not to exceed ten (10) pages each, addressing how the EPA decision cited above impacts t his case. Not later than Thursday, 6/28/2012, Plaintiff shall file a Supplemental Opposition, not to exceed fifteen (15) pages. Not later than Thursday, 7/5/2012, NRDC and the ARB shall file Replies, not to exceed five (5) pages each. Not later than Thursday, 7/12/2012, Plaintiff shall file any Sur-Reply, not to exceed five (5) pages. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CALIFORNIA DUMP TRUCK OWNERS ASSOC., No. 2:11-cv-00384-MCE-GGH 12 Plaintiff, ORDER 13 v. 14 MARY D. NICHOLS, et al., 15 Defendants. 16 17 ----oo0oo---- 18 19 The Court is in receipt of the Notice of Supplemental 20 Authority (ECF No. 59) filed Thursday, May 24, 2012, by 21 Defendant-Intervenor Natural Resources Defense Council, Inc. 22 (“NRDC”). 23 the United States Environmental Protection Agency (“EPA”) 24 approving California’s inclusion of the Regulation to Reduce 25 Emissions of Diesel Particulate Matter, Oxides of Nitrogen and 26 Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled 27 Vehicles (“Truck and Bus Regulation”), 13 Cal. Code Reg. § 2025, 28 within its State Implementation Plan (“SIP”). NRDC submitted for the Court’s review the decision of 1 1 See Final Rule, Approval and Promulgation of Implementation 2 Plans, 77 Fed. Reg. 20308-01 (April 4, 2012) (to be codified at 3 40 C.F.R. pt. 52). 4 the EPA decision was still pending. 5 has been rendered, the Court deems it necessary to order further 6 briefing regarding what effect the EPA’s above approval will have 7 on the parties’ positions in this case. 8 of American Railroads v. South Coast Air Quality Management 9 Dist., 622 F.2d 1094, 1098 (9th Cir. 2010) (“Once approved by 10 EPA, state implementation plans have the force and effect of 11 federal law.”) (internal citations and quotations omitted).1 At the time the parties filed their papers, Now that an agency decision See, e.g., Association 12 Accordingly, briefing shall be as follows: 13 1. Not later than Thursday, June 14, 2012, Defendants and 14 NRDC shall file Supplemental Briefs, not to exceed ten (10) pages 15 each, addressing how the EPA decision cited above impacts this 16 case; 17 2. Not later than Thursday, June 28, 2012, Plaintiff shall 18 file a Supplemental Opposition, not to exceed fifteen (15) pages; 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 1 For example, if the Truck and Bus Regulation is now federally enforceable, it is unclear to the Court how there remains any conflict between state and federal law. Stated another way, it is not obvious on the current record how a claim based on the Supremacy Clause can survive when, during the course of litigation, the challenged state law is ultimately given the “force and effect of federal law.” 2 1 2 3 4 5 6 3. Not later than Thursday, July 5, 2012, NRDC and the ARB shall file Replies, not to exceed five (5) pages each; and 4. Not later than Thursday, July 12, 2012, Plaintiff shall file any Sur-Reply, not to exceed five (5) pages. IT IS SO ORDERED. Dated: May 30, 2012 7 8 9 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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