California Dump Truck Owners Association v. Air Resources Board
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CALIFORNIA DUMP TRUCK OWNERS
ASSOC.,
No. 2:11-cv-00384-MCE-GGH
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Plaintiff,
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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The Court is in receipt of the Notice of Supplemental
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Authority (ECF No. 59) filed Thursday, May 24, 2012, by
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Defendant-Intervenor Natural Resources Defense Council, Inc.
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(“NRDC”).
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the United States Environmental Protection Agency (“EPA”)
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approving California’s inclusion of the Regulation to Reduce
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Emissions of Diesel Particulate Matter, Oxides of Nitrogen and
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Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled
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Vehicles (“Truck and Bus Regulation”), 13 Cal. Code Reg. § 2025,
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within its State Implementation Plan (“SIP”).
NRDC submitted for the Court’s review the decision of
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See Final Rule, Approval and Promulgation of Implementation
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Plans, 77 Fed. Reg. 20308-01 (April 4, 2012) (to be codified at
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40 C.F.R. pt. 52).
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the EPA decision was still pending.
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has been rendered, the Court deems it necessary to order further
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briefing regarding what effect the EPA’s above approval will have
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on the parties’ positions in this case.
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of American Railroads v. South Coast Air Quality Management
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Dist., 622 F.2d 1094, 1098 (9th Cir. 2010) (“Once approved by
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EPA, state implementation plans have the force and effect of
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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
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Accordingly, briefing shall be as follows:
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1.
Not later than Thursday, June 14, 2012, Defendants and
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NRDC shall file Supplemental Briefs, not to exceed ten (10) pages
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each, addressing how the EPA decision cited above impacts this
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case;
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2.
Not later than Thursday, June 28, 2012, Plaintiff shall
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file a Supplemental Opposition, not to exceed fifteen (15) pages;
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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.”
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3.
Not later than Thursday, July 5, 2012, NRDC and the ARB
shall file Replies, not to exceed five (5) pages each; and
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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
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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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