Filed 5/29/18
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                               (Glenn)
                                             (Sacramento)
                                                 ----




ALLIANCE FOR CALIFORNIA BUSINESS,                                   C082828

                  Plaintiff and Appellant,                  (Super. Ct. No. 13CV01232)

        v.

STATE AIR RESOURCES BOARD,

                  Defendant and Respondent.


JACK CODY,                                                          C083083

                  Plaintiff and Appellant,                        (Super. Ct. No.
                                                            34201580002116CUWMGDS)
        v.

STATE AIR RESOURCES BOARD et al.,

                  Defendants and Respondents.




                                                  1
     APPEAL from a judgment of the Superior Court of Glenn County, Peter B.
Twede, Judge. Affirmed.

      Cannata, O'Toole, Fickes & Almazan, Therese Y. Cannata, Mark P. Fickes, and
Zachary Colbeth for Plaintiff and Appellant Alliance for California Business.

      Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney
General, Russell B. Hildreth and Nicholas Stern, Deputy Attorneys General for
Defendants and Respondents State Air Resources Board.

      APPEAL from a judgment of the Superior Court of Sacramento County, Timothy
M. Frawley, Judge. Affirmed.

       The Cullen Law Firm, Daniel E. Cohen and Noah M. Rich; Brian Leighton Law
Offices and Brian Leighton for Plaintiff and Appellant, Jack Cody.

       Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney
General, Randy L. Barrow, Linda Gandara, Courtney S. Covington, and Carolyn Nelson
Rowan, Deputy Attorneys General for Defendants and Respondents State Air Resources
Board.



       We consolidated these cases to address a novel question regarding jurisdiction
under the unique and complex cooperative federalism scheme of the federal Clean Air
Act (42 U.S.C. § 7401 et seq.) (Act). The Act authorizes the United States
Environmental Protection Agency (Agency) to promulgate national primary and
secondary ambient air quality standards. (Id., §§ 7408, 7409.) States, however, have the
“primary responsibility for assuring air quality” and must each devise, adopt, and
implement a state implementation plan (SIP) specifying how the state will achieve and
maintain the national air quality standards. (Id., § 7407(a).) The SIP is submitted to the
Agency’s administrator (Administrator) for approval. (Id., § 7410(a)(1), (a)(3)(B).)
Once approved by the Administrator and codified in the Code of Federal Regulations, the
SIP becomes federal law and may be enforced “by either the State, the [Agency], or via
citizen suits.” (Bayview Hunters v. Metropolitan Transp. (9th Cir. 2004) 366 F.3d 692,




                                             2
695; California Dump Truck Owners Ass’n. v. Nichols (9th Cir. 2015) 784 F.3d 500, 503
(Dump Truck).)
       The cases here seek the same relief and practical objective -- to invalidate and
render unenforceable, in whole or in part, albeit on different grounds, a state regulation
known as the Truck and Bus Regulation1 (Regulation), which was approved by the
Administrator as part of and incorporated into California’s SIP. Plaintiff Jack Cody
argues the Regulation violates the dormant commerce clause of the United States
Constitution because it discriminates against out-of-state truckers by imposing a
disproportionate compliance burden on them. Plaintiff Alliance for California Business2
(Alliance) argues the Regulation is unlawful because part of its mandate conflicts with
state and federal safety laws. Defendants, including the California Air Resources Board
(Board), raised lack of subject matter jurisdiction under section 307(b)(1)3 of the Act in
both cases on appeal.4
       The pertinent question is a discrete issue of statutory interpretation: whether
section 307(b)(1) vests exclusive and original jurisdiction over these challenges to the
Regulation incorporated into and approved as part of California’s SIP in the Ninth Circuit
Court of Appeals. We conclude it does and affirm the judgments for lack of jurisdiction.



1     “Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen
and Other Criteria Pollutants, from In-Use Heavy-Duty Diesel-Fueled Vehicles.” (Cal.
Code Regs., tit. 13, § 2025.)
2       Alliance confusingly uses variations of its name in its briefing. We use the name
identified in its notice of appeal.
3      All subsequent references to section 307(b)(1) shall be to that section in the Act.
Section 307(b)(1) is codified at section 7607(b)(1) of title 42 of the United States Code.
4      While the Alliance defendants did not raise it in the trial court, lack of subject
matter jurisdiction may be raised for the first time on appeal. (People v. Lara (2010) 48
Cal.4th 216, 225.)

                                             3
                               GENERAL BACKGROUND
       To assist in a better understanding of the factual and procedural background of
these cases and the discussion that follows, we begin with the general background of the
regulatory framework underlying the Act and its jurisdictional provisions.
                                              I
                         Regulatory Framework And Background
       The Act “sets forth a cooperative state-federal scheme for improving the nation’s
air quality.” (Vigil v. Leavitt (9th Cir. 2004) 381 F.3d 826, 830.) The Agency establishes
the national air quality standards and the states devise, adopt, and implement a SIP to
satisfy those standards. (Ibid.) The Board is the state agency responsible for carrying out
this federal mandate in California. (Health & Saf. Code, § 39602.) SIP’s evolve over
time to account for new national air quality standards and emissions reduction
technologies. (See 42 U.S.C. § 7410(a)(2)(H).)
       The Administrator is required to approve the state’s SIP submission if it complies
with the provisions of the Act and applicable federal regulations. (42 U.S.C. § 7410(k);
40 C.F.R. § 52.02(a) (2017).) Among other things, the SIP must contain “enforceable
emission limitations and other control measures, means, or techniques . . . as well as
schedules and timetables for compliance,” and provide “necessary assurances that the
State . . . will have adequate personnel, funding, and authority under State (and, as
appropriate, local) law to carry out such implementation plan (and is not prohibited by
any provision of Federal or State law from carrying out such implementation plan or
portion thereof).” (42 U.S.C. § 7410(a)(2)(A), (E).)
       In May 2011, the Board submitted the Regulation to the Agency for inclusion in
California’s SIP. (76 Fed.Reg. 40652, 40653 (July 11, 2011).) The Board had adopted
the Regulation in 2008 to help California meet the national standards for fine particulate
matter and ozone. (Cal. Code Regs., tit. 13, § 2025, subd. (a); Dump Truck, supra, 784
F.3d at p. 503.) The Regulation generally sets forth stated deadlines by which certain

                                             4
diesel vehicles operating in California must be retrofitted with diesel particulate filters5 or
upgraded to newer model engines with those filters. (Cal. Code Regs., tit. 13, § 2025,
subds. (b), (d)(18), (d)(35), (d)(60), (e)-(g); 76 Fed.Reg., supra, at pp. 40654-40655.)
The filters are verified by the Board, as required by the Regulation, pursuant to the
Verification Procedure,6 which sets forth the procedures and requirements for
manufacturers to obtain verification of their filters. (Cal. Code Regs., tit. 13, § 2025,
subd. (d)(18), (d)(35), (d)(60) & §§ 2700-2711.)
       On July 11, 2011, the Agency published a proposed rule to approve California’s
request to incorporate the Regulation and other regulations into its SIP. (76 Fed.Reg.,
supra, at p. 40652.) The Agency explained the requirements and key concepts of the
Regulation, including the requirements relating to the filters verified pursuant to the
Verification Procedure. (Id. at pp. 40654-40656.) As part of its analysis, the Agency
discussed the enforceability of the Regulation and found the state has adequate legal
authority to implement the regulations. (Id. at pp. 40658-40659.) It further determined it
“kn[e]w of no obstacle under Federal or State law in [the Board’s] ability to implement
the regulations.” (Id. at p. 40658.)
       On April 4, 2012, the Agency issued its final rule approving the Board’s SIP
submission, noting it received no comments on its proposed rule. (77 Fed.Reg. 20308-
20314 (Apr. 4, 2012).) The Regulation was incorporated into California’s SIP by
reference. (40 C.F.R. § 52.220(c)(410) (2017).) In the final rule notice, the Agency



5      A diesel particulate filter is a highest level verified diesel emission control strategy
(also known as “Highest level VDECS”) to reduce diesel particulate emissions required
by the Regulation for retrofitting pre-2007 engines. (Cal. Code Regs., tit. 13, § 2025,
subds. (d)(18), (d)(35), (d)(60), (e)-(g).)
6     “Verification Procedure, Warranty and In-Use Compliance Requirements for In-
Use Strategies to Control Emissions from Diesel Engines.” (Cal. Code Regs., tit. 13,
§§ 2700-2711.)

                                              5
reiterated the basis it used to evaluate the Regulation, including its determination that the
state provided the necessary assurances required under the Act. (77 Fed.Reg., supra, at
p. 20311.)
                                              II
                                 The Jurisdictional Statute
       Section 307(b)(1) provides, in pertinent part: “A petition for review of the
Administrator’s action in approving or promulgating any implementation plan . . . or any
other final action of the Administrator under this Act . . . which is locally or regionally
applicable may be filed only in the United States Court of Appeals for the appropriate
circuit.” (42 U.S.C. § 7607(b)(1).) The petition “shall be filed within sixty days from the
date notice of such promulgation, approval, or action appears in the Federal Register,
except that if such petition is based solely on grounds arising after such sixtieth day, then
any petition for review under this subsection shall be filed within sixty days after such
grounds arise.” (Ibid.)
       Section 307(b)(2) of the Act7 states, in part, that an “[a]ction of the Administrator
with respect to which review could have been obtained under paragraph (1) shall not be
subject to judicial review in civil or criminal proceedings for enforcement.” (42 U.S.C.
§ 7607(b)(2).) Further, section 307(e) of the Act8 provides “[n]othing in this Act shall be
construed to authorize judicial review of regulations or orders of the Administrator under
this Act, except as provided in this section.” (42 U.S.C. § 7607(e).)




7      All subsequent references to section 307(b)(2) shall be to that section in the Act.
Section 307(b)(2) is codified at section 7607(b)(2) of title 42 of the United States Code.
8      All subsequent references to section 307(e) shall be to that section in the Act.
Section 307(e) is codified at section 7607(e) of title 42 of the United States Code.

                                              6
                      PROCEDURAL AND FACTUAL BACKGROUND
                                                I
                                           Alliance
       Alliance promotes business interests throughout California. Its membership
includes truck owners and operators subject to the Regulation. Alliance sued the Board
and its chair, executive officer, and board members in Glenn County Superior Court
claiming safety concerns with the installation and use of the filters. After several law and
motion rulings, Alliance’s complaint was limited to a single cause of action for
declaratory relief.
       Alliance alleged the controversy concerns the “legality [of the Regulation], as
designed, approved, and implemented by defendants,” and that its members would suffer
irreparable harm if the Regulation is implemented and enforced because they would be
“forced to install an unproven, defective and dangerous technology, to wit the [filter]
device” or suffer fines, penalties, and lost revenue due to the inability to operate their
trucks in California. In its request for relief, Alliance sought a declaration that the
continued enforcement of the Regulation and Verification Procedure, in whole or in part,
with respect to the filter requirement would place Alliance members “in the position of
violating California public health and safety laws.” It further sought an injunction
prohibiting enforcement of the Regulation and the Verification Procedure “in their
entirety, or at least as to the current [filter] device requirements.”
       Defendants filed a motion for judgment on the pleadings on two grounds: (1) the
complaint failed to state facts sufficient to constitute a cause of action because
subdivision (q)(5) of the Regulation provides a procedure by which an owner or operator
of a diesel truck subject to the retrofit requirement may receive an exemption upon a
showing that installation of a verified filter would violate state and federal health and
safety laws; and (2) the court lacked jurisdiction because Alliance’s members failed to



                                               7
exhaust their administrative remedies under subdivision (q)(5) of the Regulation prior to
filing suit.
        The court granted defendants’ motion, finding Alliance failed to state a legally
sufficient cause of action because the Regulation and Verification Procedure, “by their
express terms,” negate the allegations in the complaint and do not place Alliance’s
members in the position of violating health and safety laws. The court further found the
truck owners and operators could obtain an extension of the retrofit deadline following an
administrative determination that the filter cannot be installed safely or that it violates
health and safety laws.
        The court entered judgment in favor of the defendants. Alliance appeals.
                                              II
                                            Cody
        Cody is an out-of-state professional truck driver who was issued a citation in
October 2014 for operating a truck in California without a filter, in violation of the
Regulation. This is Cody’s fourth legal proceeding arising out of the citation and his
fourth attempt to invalidate the Regulation for violation of the dormant commerce clause.
Having failed in his original choice of venue, federal district court and the Ninth Circuit,
and then in Sacramento Superior Court, he now brings this matter before us on appeal.
                                              A
                                     Federal Challenges
        In 2014, Cody joined a suit by the Owner-Operator Independent Drivers
Association, Inc. (OOIDA) and individual truck owner-operators against the Board to
invalidate the Regulation, filed in the Eastern District of California. (OOIDA v. Corey
(E.D. Cal. July 9, 2015, No. 2:14-CV-00186-MCE-AC) 2015 WL 4164649.) OOIDA
and the individual truck owner-operators asserted a facial challenge on dormant
commerce clause grounds, and Cody asserted an “as-applied” challenge on the same
grounds. The Board filed a motion to dismiss for lack of jurisdiction, arguing, among

                                               8
other things, section 307(b)(1) vests exclusive jurisdiction over such claims in the Ninth
Circuit and the case could not proceed absent joinder of the Agency, a necessary and
indispensable party. (OOIDA v. Corey, supra, 2015 WL 4164649 at p. *5.)
       The district court found the facial and as-applied challenges implicated the
Agency’s final action approving the Regulation as part of California’s SIP and, therefore,
under section 307(b)(1), the claims fell within the original and exclusive jurisdiction of
the Ninth Circuit. (OOIDA v. Corey, supra, 2015 WL 4164649 at p. *5, incorporating
OOIDA v. Corey (E.D. Cal. Oct. 29, 2014, No. 2:14-CV-00186-MCE-AC) 2014 WL
5486699 at pp. *5-*6.) While the court dismissed the facial challenge by OOIDA and the
individual truck owner-operators, 9 it transferred Cody’s as-applied claim to the Ninth
Circuit instead of dismissing it. The court did so because it was unclear whether Cody’s
claim was time-barred by the 60-day limit in section 307(b)(1) (Cody filed his claim
approximately 42 days after issuance of the citation), and “because the complicated
interplay of state and federal law raised unique jurisdictional questions in this procedural
posture.” (OOIDA v. Corey, supra, 2015 WL 4164649 at p. *6.)
       Following the transfer to the Ninth Circuit, the Board moved to dismiss the claim
for lack of jurisdiction based on the 60-day statute of limitations in section 307(b)(1).
The Board argued Cody’s challenge existed when the Agency approved the Regulation as
part of the SIP and Cody raised no facts indicating his claim was based solely on grounds
arising after the 60-day time frame. The Agency joined in the action and filed a motion
to dismiss as well.




9      OOIDA appealed the dismissal of its claims to the Ninth Circuit. The Ninth
Circuit affirmed the district court’s judgment because, “ ‘as a practical matter,’ ” the suit
challenged the Administrator’s final action in approving the Regulation as part of the SIP.
(OOIDA v. Corey (9th Cir. 2017) 690 Fed.Appx. 479, 480.)

                                              9
       On January 27, 2016, the Ninth Circuit granted the motions to dismiss. The order
did not include an opinion, but the court cited to section 307(b)(1) and its prior Dump
Truck decision. In Dump Truck, the Ninth Circuit held that section 307(b)(1) vested
exclusive jurisdiction over a constitutional preemption claim seeking to invalidate the
Regulation (following its approval as part of the SIP) in the Ninth Circuit. (Dump Truck,
supra, 784 F.3d at pp. 502-504.)
                                             B
                                     State Challenges
       On June 23, 2015, while the district court case was pending, Cody filed a petition
for writ of mandate and complaint for declaratory relief against the Board, the Board’s
chair and executive officer, and the secretary for environmental protection in the
California Environmental Protection Agency in Sacramento County Superior Court.10
Cody’s petition again challenged the October 7, 2014, Board citation. Cody had
previously appealed the citation to the Board, requesting a hearing to introduce evidence
that the citation was unconstitutional. The Board responded that the citation was issued
correctly and the regulation “has been approved and is the law of the land in California.”
The Board further stated that “all citations issued are within the authority vested by the
[Agency].”
       Cody alleged the Regulation violates the dormant commerce clause because it
disproportionately burdens out-of-state truckers and improperly regulates interstate
commerce. He requested an order declaring the Regulation unconstitutional “on its face
and/or as applied” and prohibiting the Board from enforcing the Regulation against him
and “other similarly situated interstate truck owner-operators.” Defendants filed a motion
for judgment on the pleadings for lack of jurisdiction, asserting the Ninth Circuit has



10    Cody was not “haled into state court for a violation of state law,” as he asserts.
Cody is the plaintiff.

                                             10
exclusive jurisdiction over Cody’s claims under section 307(b)(1). Cody opposed the
motion, arguing state court jurisdiction was appropriate because he was asserting the
constitutional claim as a defense to prosecution.
       The trial court agreed with the defendants and granted the motion. Relying on
Dump Truck, the court explained that, “[d]ue to the [Agency’s] approval of the
Regulation as part of California’s SIP, [Cody’s] complaint effectively challenges the
validity of the SIP, and therefore is the type of action to which section 307(b)(1) of the
[Act] applies.” Cody appeals.
                                       DISCUSSION
                                              I
                                    Standard Of Review
       The lack of subject matter jurisdiction cannot be waived and may be raised at any
time, even for the first time on appeal. (People v. Lara, supra, 48 Cal.4th at p. 225;
Cowan v. Superior Court (1996) 14 Cal.4th 367, 372.) Where the evidence is
undisputed, subject matter jurisdiction is a legal question subject to de novo review.
(Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 42.) Additionally, statutory
interpretation is a question of law subject to de novo review. (In re Tobacco II Cases
(2009) 46 Cal.4th 298, 311.)
                                             II
             The Ninth Circuit Has Exclusive Jurisdiction Over These Cases
                                             A
           Where Section 307(b)(1) Applies, It Confers Exclusive Jurisdiction
       The initial question is whether section 307(b)(1) grants the federal circuit courts of
appeals original and exclusive jurisdiction over the actions enumerated therein. It does.
       State courts are generally presumed to have concurrent jurisdiction with federal
courts, subject to the limitations of the supremacy clause of the United States
Constitution. (Burt v. Titlow (2013) 571 U.S. 12, 19 [187 L.Ed.2d 348, 355].) This

                                             11
“presumption arises when the jurisdictional provision in question is silent as to the
jurisdiction of state courts.” (Kingston Constructors, Inc. v. Washington Metropolitan
Area Transit Authority (1997) 14 Cal.4th 939, 948, italics omitted.) “Congress, however,
may confine jurisdiction to the federal courts either explicitly or implicitly.” (Gulf
Offshore Co. v. Mobil Oil Corp. (1981) 453 U.S. 473, 478 [69 L.Ed.2d 784, 791].) Thus,
where the presumption arises, it “can be rebutted by an explicit statutory directive, by
unmistakable implication from legislative history, or by a clear incompatibility between
state-court jurisdiction and federal interests.” (Ibid.)
       While section 307(b)(1) is silent regarding the jurisdiction of state courts, the
express language of the statute rebuts the presumption of concurrent jurisdiction. As in
any case of statutory interpretation, we look to the words Congress used and give them
their usual and ordinary meaning. (People v. Superior Court (Zamudio) (2000) 23
Cal.4th 183, 192.)
       Here, the statute provides that the Administrator’s approval of a SIP submission
“may be filed only in the United States Court of Appeals for the [appropriate circuit].”
(42 U.S.C. § 7607(b)(1), italics added.) “Only” means “solely” or “exclusively.”
(Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 867; cf. Mims v. Arrow Financial
Servs., LLC (2012) 565 U.S. 368, 380 [181 L.Ed.2d 881, 895] [state jurisdiction not
exclusive because statute did not provide action could be brought “ ‘only’ in state court,
or ‘exclusively’ in state court”].) Further, section 307(e) explicitly precludes judicial
review except as provided in the Act. (42 U.S.C. § 7607(e).) Thus, by the plain language
of the statute, federal courts of appeals have original and exclusive jurisdiction over
challenges to the Agency’s actions enumerated in the statute.
       Our conclusion is supported by the Supreme Court’s interpretation of an
analogous jurisdictional statute -- section 509(b)(1) of the federal Clean Water Act.
Section 509(b)(1) of the Clean Water Act provides that challenges to seven categories of
Agency action “may be had by any interested person in the Circuit Court of Appeals of

                                              12
the United States for the Federal judicial district in which such person resides or transacts
business which is directly affected by such action upon application by such person.” 11
(33 U.S.C. § 1369(b)(1).) The Supreme Court found this jurisdictional statute vests
original and exclusive jurisdiction over challenges to the seven categories of Agency
action in the federal courts of appeals. (Nat’l Ass’n of Mfrs. v. DOD (2018) ___ U.S. ___
[199 L.Ed.2d 501, 512], citing Decker v. Northwest Environmental Defense Center
(2013) 568 U.S. 597, 608 [185 L.Ed.2d 447, 458].) The directive found in
section 307(b)(1) is even more explicit than the directive in section 509(b)(1) of the
Clean Water Act, because it contains the “only in” language.
                                               B
            The Cases Fall Within Section 307(b)(1)’s Jurisdictional Mandate
       We next evaluate whether Cody’s and Alliance’s claims are of the type Congress
intended to channel to the federal courts of appeals. Relying on the sound principles of
statutory interpretation, we find they are subject to the jurisdictional mandate. The Act’s
comprehensive enforcement structure and unambiguous text, combined with Congress’s
clear concern with channeling and streamlining challenges to approved SIP submissions
in one jurisdiction, establishes a “ ‘fairly discernable’ ” intent to preclude state court
review in these cases. (Thunder Basin Coal Co. v. Reich (1994) 510 U.S. 200, 216 [127
L.Ed.2d 29, 43].)12




11     Notably, section 307(b)(2) and section 509(b)(2) of the Clean Water Act have
identical preclusion-of-review provisions, which mandate that any agency action
reviewable under their respective preceding subdivisions (b)(1) “shall not be subject to
judicial review in any civil or criminal proceeding for enforcement.” (42 U.S.C.
§ 3607(b)(2); 33 U.S.C. § 1369(b)(2).)
12     Notably, where it is unclear whether review jurisdiction falls within the statute’s
exclusive jurisdiction, ambiguity is resolved in favor of the jurisdictional mandate.
(General Elec. Uranium v. Dept. of Energy (D.C. Cir. 1985) 764 F.2d 896, 903.)

                                              13
       Cody and Alliance argue the jurisdictional mandate does not apply because they
are challenging the validity and enforceability of the Regulation as a matter of state law --
not the SIP or the Agency’s approval of the Regulation as part of the SIP. However,
semantics do not inform our jurisdictional inquiry. Our analysis turns on the effect of
their requested relief13 and not on how Cody and Alliance chose to frame their challenges
to the Regulation. Otherwise creative lawyering could override congressional intent, a
result not permitted by law.
       We agree with all pertinent federal appellate decisions that the scope of
section 307(b)(1)’s jurisdictional requirement “extends to claims that, as a practical
matter, challenge an [Agency’s] final action, including its approval of a SIP.” (Dump
Truck, supra, 784 F.3d at p. 507, italics added; U.S. v. Ford Motor Co. (6th Cir. 1987)
814 F.2d 1099, 1103 [invalidation of SIP may only occur in federal appellate courts];
Com. of VA. v. U.S. (4th Cir. 1996) 74 F.3d 517, 522 [plaintiff could not circumvent
direct review in federal appellate court by framing its complaint as a constitutional
challenge to the Act]; State of MO. v. U.S. (8th Cir. 1997) 109 F.3d 440, 441 [same].)
Section “307(b)(1) channels review of final [Agency] action exclusively to the courts of
appeals, regardless of how the grounds for review are framed.” (Com. of VA., at p. 523.)
       We find Dump Truck particularly persuasive because like Cody’s and Alliance’s
requests for relief here, the plaintiff in that case sought to render the Regulation invalid
and unenforceable. The Dump Truck plaintiff sought such relief on the basis that the
Regulation was preempted by the Federal Aviation Administration Authorization Act and
thus violated the supremacy clause of the United States Constitution. (Dump Truck,



13     In evaluating subject matter jurisdiction, we focus on the claims for relief in the
context of the allegations in the complaint. (2 Lambden at al., Cal. Civ. Practice (2008)
Jurisdictional Effect, § 8:3, citing 2 Witkin, Cal. Procedure (4th ed.) Jurisdiction, §§ 22 to
31 [“The demand for relief is also used, in conjunction with the rest of the complaint, to
determine whether an action has been filed in the appropriate jurisdiction”].)

                                              14
supra, 784 F.3d at p. 503.) The plaintiff raised the same argument Cody and Alliance
asserts here: “because it [wa]s challenging only the Regulation and not the SIP,
§ 307(b)(1) [did] not apply.” (Dump Truck, at p. 505.) The Ninth Circuit disagreed.
       The Ninth Circuit reviewed the scope of section 307(b)(1) and, relying on, among
other cases, Com. of VA., and State of MO., determined the plaintiff’s suit, “as a practical
matter, challenge[d] the [Agency’s] approval of a provision of California’s SIP,”
subjecting it to the jurisdictional mandate. (Dump Truck, supra, 784 F.3d at pp. 505-
507.) The court explained that “the SIP’s effectiveness in attaining the [Agency’s
national air quality standards] is directly tied to its enforcement by [the Board], and
would be vitiated if such enforcement were enjoined.” (Id. at p. 508.) Moreover, the
constitutional claim “effectively challeng[ed] the [Agency’s] determination that federal
law does not prohibit the Regulation.” (Id. at p. 507.) Thus, “the practical, and therefore
legal, effect of the [plaintiff]’s suit [wa]s to challenge both the [Agency] and the SIP.”
(Ibid.) Accordingly, the plaintiff’s suit had to be brought in the Ninth Circuit.
       The Dump Truck decision and analysis are well-grounded in statutory
interpretation, logic, and policy. We cannot divorce the Regulation from the Agency’s
SIP approval; the Regulation and SIP are inextricably intertwined. As a practical matter,
if a California court invalidates the Regulation on substantive grounds, it would amount
to an implicit repeal of the Agency’s approved SIP because the Regulation is
incorporated into the SIP by reference only. (40 C.F.R. § 52.220(c)(410).) Such a repeal
would invalidate the Administrator’s approval of California’s SIP in state superior court
rather than federal appellate court, rendering section 307(b)(1)’s exclusive jurisdiction
mandate superfluous. We avoid statutory constructions that render words, phrases, or
clauses superfluous. (Klein v. United States of America (2010) 50 Cal.4th 68, 80-81.)
       Further, by seeking to enjoin the Board from enforcing the Regulation, Cody and
Alliance are practically challenging the Agency’s approval of the Regulation because the
Board is enforcing the Regulation under the authority conferred upon it by the Act and

                                             15
the Administrator’s approval of the Regulation as part of the SIP. (76 Fed.Reg., supra,
at pp. 40658-40659; Bayview Hunters v. Metropolitan Transp., supra, 366 F.3d at
p. 695.) Indeed, in response to Cody’s appeal of the citation, the Board responded, “all
citations issued are within the authority vested by the [Agency].” Accordingly, we again
cannot divorce the Board’s enforcement of the Regulation from its enforcement of the
SIP.
       To distinguish Dump Truck, the plaintiffs focus on the substance of their claims.
Alliance argues section 307(b)(1) does not apply to state law claims. Cody argues his
constitutional challenge does not implicate section 307(b)(1) because the Agency did not
expressly opine on the commerce clause implications of the Regulation in its rulemaking,
as compared to its express consideration of the preemption argument raised in Dump
Truck. We are not persuaded. Section 307(b)(1) does not distinguish between or discuss
the substantive grounds upon which a claim is jurisdictional. (See State of MO. v. U.S.,
supra, 109 F.3d at p. 441 [the Act “makes no distinction between constitutional
challenges and other challenges”].) Rather, section 307(b)(1) focuses on the effect of the
claim. We do not insert what has been omitted or omit what has been inserted in a
statute. (Code Civ. Proc., § 1858.) The substantive claims here directly challenge the
Administrator’s determination that the state has adequate legal authority to implement the
regulations, triggering section 307(b)(1). (76 Fed.Reg., supra, at pp. 40658-40659.)
       Moreover, exclusive jurisdiction to review administrative determinations includes
jurisdiction over related legal issues pertaining to those decisions. (Palumbo v. Waste
Technologies Industries (4th Cir. 1993) 989 F.2d 156, 161; Connors v. Amax Coal Co.,
Inc. (7th Cir. 1988) 858 F.2d 1226, 1231; accord Media Access Project v. FCC (D.C. Cir.
1989) 883 F.2d 1063, 1067-1068.) Even though the Agency did not expressly address
the safety laws raised by Alliance or the commerce clause argument raised by Cody, such
legal issues are surely related to the Agency’s determination regarding enforceability and



                                            16
adequate legal authority. Thus, such legal issues fall within the exclusive jurisdiction of
the Ninth Circuit.
       Our conclusion also furthers congressional intent. Our primary task in statutory
interpretation “is to determine [Congress’s] intent, giving effect to the law’s purpose.”
(Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029,
1037.) We construe the language in the context of the entire statutory frame work, with
consideration given to the policies and purposes of the statute. (Jones v. Superior Court
(2016) 246 Cal.App.4th 390, 397.)
       The policies and purposes underlying the exclusive jurisdiction mandate of
section 307(b)(1) are expediency and finality. “Congress wanted speedy review of
[Agency] rules and final actions in a single court.” (Com. of VA. v. U.S., supra, 74 F.3d
at p. 525; see Harrison v. PPG Industries, Inc. (1980) 446 U.S. 578, 593 [64 L.Ed.2d
525, 538] [“The most obvious advantage of direct review by a court of appeals is the
time saved compared to review by a district court, followed by a second review on
appeal”].) As our Supreme Court noted, exclusive federal jurisdiction also serves the
distinct goal of promoting uniformity in the interpretation and application of those laws
to which it applies. (Cianci v. Superior Court (1985) 40 Cal.3d 903, 913.)
       Allowing Cody and Alliance to proceed with their cases in state court would
undermine these policy objectives. The cases would proceed in different venues in state
superior court and would then be subject to appeal in the court of appeal and possibly our
Supreme Court. At the same time, others could pursue similar challenges to the
Regulation in other state venues and in the Ninth Circuit (in accordance with Dump
Truck), creating substantial potential for inconsistent judgments. As the Ninth Circuit
explained in Dump Truck: “This would frustrate Congress’s goal of having prompt and
final review of decisions regarding SIPs.” (Dump Truck, supra, 784 F.3d at p. 511.) It
would also undercut a major basis for the Act’s jurisdictional scheme: “ ‘the concern for



                                             17
judicial economy; to wit, the risk of duplicative or piecemeal litigation, and the risk of
contradictory decisions.’ ” (Com. of VA. v. U.S., supra, 74 F.3d at p. 525.)
       These concerns are amplified by the Agency’s absence in these cases. The
pending litigation would decide whether the Agency-approved Regulation violates the
federal Constitution and state and federal safety laws, and whether the SIP’s primary
enforcement mechanism is, in fact, unenforceable. Thus, the Agency certainly has a
concrete interest in the lawsuits and its rights could be affected by a judgment in either
case. However, Congress did not waive the Agency’s sovereign immunity and, therefore,
it cannot be joined as a party to these state court actions. (See United States v. Nordic
Village (1992) 503 U.S. 30, 33-34 [117 L.Ed.2d 181, 187-188].) Applying
section 307(b)(1) to state challenges to the Administrator’s SIP determinations under the
Act ensures the Agency’s interests and rights are protected because such challenges
would be brought in federal court where the Agency may be joined.
       We find none of Cody’s or Alliance’s remaining arguments availing. First,
Alliance attempts to distinguish its claims from those in Dump Truck by arguing it is not
seeking to “completely” invalidate the Regulation, but merely challenging “how the
regulation is implemented by [the Board] and to the narrow issue of why the verified
[filter] devices, at this time, have proven to be unsafe, and therefore conflict with other
public safety laws; as such, members of the Alliance should not be mandated to employ
the [filter] technology.” This argument belies the allegations in its complaint and
appellate opening brief, wherein Alliance requests a declaration that the Regulation is
invalid and unenforceable in whole or in part.
       Cody and Alliance, like the plaintiff in Dump Truck, also rely on Sierra Club v.
Indiana-Kentucky Elec. Corp. (7th Cir. 1983) 716 F.2d 1145 for the proposition that a
challenge to a SIP-approved state regulation is not confined to exclusive jurisdiction in
the federal courts of appeals. (Dump Truck, supra, 784 F.3d at p. 509.) As the Ninth
Circuit pointed out, while Sierra Club stands for this proposition, it does so in a very

                                             18
narrow context relating to procedural challenges on state law grounds, which was not at
issue in Dump Truck and is not at issue here. (Dump Truck, at p. 509.) The Seventh
Circuit explained the narrowness of its determination, stating that “[o]nce a plan is
adopted by the state and it withstands any subsequent procedural challenge, then
§ [307(b)(1)] provides that invalidation may occur only in the federal appellate courts.”
(Sierra Club, at p. 1152.) Accordingly, Sierra Club supports our conclusion here.
       The feasibility and waiver cases upon which Cody relies are also inapplicable.
The Administrator is not required to consider economic or technologic feasibility when
approving a SIP. (Indiana & Mich. Elec. Co. v. Environmental Pro. Agcy. (7th Cir.
1975) 509 F.2d 839, 843-844; Buckeye Power, Inc. v. Environmental Protection Agcy.
(6th Cir. 1973) 481 F.2d 162, 173 [“petitioners are not entitled to raise their claims of
high cost-benefit, technological infeasibility and resource unavailability prior to the
Administrator’s approval of the state plans”].) Therefore, because feasibility claims do
not fall within the jurisdiction of section 307(b)(1), they are not subject to the preclusion-
of-review provision of section 307(b)(2) and may be asserted as a defense in federal or
state enforcement proceedings. (Indiana & Mich. Elec. Co., at p. 844; Buckeye Power,
Inc., at p. 173.) In contrast to the feasibility cases, the Regulation’s enforceability and the
Board’s legal authority to implement the Regulation are express factors applicable to the
SIP approval process, and thus claims are subject to section 307(b)(1) and section
307(b)(2).14 (42 U.S.C. § 7410(a)(2)(A), (E).)



14     The legal authority of the state under the federal Constitution and state law to
implement the SIP is frequently expressly discussed by the Administrator during the SIP
approval process. (See 76 Fed.Reg., supra, at p. 40658 [preemption does not present an
obstacle to the implementation of the Regulation by California]; Ass’n. of Irritated
Residents v. United States EPA (9th Cir. 2015) 790 F.3d 934 [addressing mistaken
approval of rules in conflict of state law as part of California’s SIP]; 68 Fed.Reg. 37746,
37747 (June 25, 2003) [disapproved regulation of certain facilities because the facilities
were exempt from such obligations under a state statute].)

                                              19
       The “waiver” cases (Motor and Equipment Mfrs. Ass’n, Inc. v. E. P. A. (D.C. Cir.
1979) 627 F.2d 1095; Am. Trucking Ass’ns v. EPA (D.C. Cir. 2010) 600 F.3d 624) do not
arise within the context of SIP approvals either. Section 209 of the Act “requires the
[Administrator] to waive federal preemption of motor vehicle emission control
regulations for the State of California unless he makes certain findings that a waiver is
inappropriate.” (Motor and Equipment Mfrs. Ass’n, Inc., at p. 1100.) Challenges to the
Administrator’s waiver decision are brought pursuant to the federal Administrative
Procedure Act (5 U.S.C. § 551 et seq.) and not section 307(b)(1). (Motor and Equipment
Mfrs. Ass’n, Inc., at pp. 1105-1106.) Therefore, the waiver cases do not inform our
interpretation of section 307(b)(1).
       Finally, our interpretation does not violate due process, as Cody contends. Cody
argues it is “a fundamental principle of administrative law” that he be permitted to raise
his constitutional challenge as a defense in the Board’s enforcement proceeding. He
hyperbolically asserts “the trial court gave away, wholesale, the authority of every
Superior Court judge in this state to vindicate the basic right to defend oneself in civil or
criminal enforcement proceedings.” The trial court did not draft the statute, it merely
applied it. Because Cody’s constitutional challenge was subject to review under
section 307(b)(1), the express preclusion-of-review provision of section 307(b)(2)
applies. (42 U.S.C. § 7607(b)(2) [any “[a]ction of the Administrator with respect to
which review could have been obtained under paragraph (1) shall not be subject to
judicial review in civil or criminal proceedings for enforcement”].)
       This preclusion-of-review provision does not foreclose all meaningful judicial
review. Section 307(b)(1) expressly provides that an action may be brought more than 60
days after the SIP’s approval if it “is based solely on grounds arising after such sixtieth
day.” (42 U.S.C. § 7607(b)(1).) “[R]estricting judicial review of [an] administrative
determination to a single court” does not offend due process “so long as it affords to
those affected a reasonable opportunity to be heard and present evidence.” (Yakus v.

                                              20
United States (1944) 321 U.S. 414, 433 [88 L.Ed. 834, 853].) Cody had his day in court
when the Ninth Circuit considered whether his constitutional claim was subject to the 60-
day statute of limitations. The Ninth Circuit found it was. An appeal from that decision
does not lie in state court.
                                              C
           Alliance’s Verification Procedure Allegations Do Not Independently
                       Support Its Declaratory Relief Cause Of Action
       Alliance acknowledges the Verification Procedure imposes no requirements on
truck drivers; it merely imposes requirements on manufacturers seeking to verify their
filters under the Regulation. It claims, however, the Verification Procedure impacts truck
drivers because the Verification Procedure conflicts with public safety laws and truck
drivers are then required under the Regulation to install unsafe verified filters.
       A declaratory relief action requires an actual controversy relating to the legal
rights and duties of the respective parties. (Code Civ. Proc., § 1060.) Alliance’s alleged
controversy flows from the Regulation, not from the Verified Procedure. But for the
Regulation, there would be no controversy to support a declaratory relief cause of action
relating to the Verification Procedure because: (1) the Verification Procedure does not
impose any requirements on Alliance or its members (i.e., truck drivers) (Cal. Code
Regs., tit. 13, §§ 2700-2711); and (2) Alliance’s claims regarding the Verification
Procedure relates to the Verification Procedure “as a critical component of effective
implementation of the [Regulation].” Therefore, Alliance’s allegations regarding the
Verification Procedure merely support its challenge to the Regulation, and are not
independent grounds to give rise to a declaratory relief cause of action.
       Moreover, the Agency approved the Regulation’s requirements that the filters be
verified pursuant to the Verification Procedure as part of its SIP approval. (76 Fed.Reg.,
supra, at p. 40654.) Therefore, a challenge to this requirement in the Regulation is
subject to the jurisdictional mandate of section 307(b)(1) as well.

                                             21
                                      DISPOSITION
       The judgments are affirmed for lack of subject matter jurisdiction. Respondents
shall recover their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)



                                                  /s/
                                                  Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Duarte, J.




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