California ex rel. State Air Resources Board v. Department of the Navy

No. C-76-0045 WHO (431 F. Supp. 1271, 9 ERC 2077) (N.D. Cal. April 12, 1977)

ELR Digest

Plaintiffs brought suit for civil penalties and injunctive relief, claiming that the level of air pollution emitted from certain of defendants' jet engine test cells violates local and state air quality standards contained in the California implementation plan, 40 C.F.R. § 52.220, which was approved by the federal Environmental Protection Agency pursuant to the Clean Air Act, 42 U.S.C. § 1857 et seq. Defendants moved to dismiss the action on various grounds. The court denies each of these motions except the motion to dismiss the claim for civil penalties, which it grants.

Defendants' claim that this lawsuit is barred by lack of subject matter jurisdiction and the doctrine of sovereign immunity must fail under Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976). Hancock indicates that § 118 of the Clean Air Act imposes a duty of compliance with state implementation plan standards upon federal installation and that this duty is enforceable via a lawsuit in federal court under § 304. Defendants' contention that plaintiffs have failed to comply with the 60-day notice requirement of § 304(b) is likewise mistaken. The relevant case law makes clear that substantial rather than literal compliance with the notice provision is required. Substantial compliance has occurred in this case because actual notice was effectively given to the proper parties. Moreover, the purposes behind § 304 have been satisfied and defendants have made no showing of prejudice because of the defective notice. In addition, dismissal now because of the defective notice would not serve the goal of judicial economy since plaintiffs would simply immediately refile this lawsuit. Nor was the joinder of two local air pollution districts as necessary parties within the meaning of Federal Rule of Civil Procedure 19(a) necessary to the continuation of this suit.

The crux of defendants' dismissal motions is the contention that § 233 of the Act, which preempts the state from adopting or enforcing emission standards for aircraft engines, extends to state regulation of jet engine test cells as well. The scope of statutory preemption is determined by the exclusionary intent of Congress, whether explicit or inferred. The emissions at issue in this case enter the ambient air directly and immediately from the test cell smokestacks rather than from the jet engines themselves. Moreover, § 233 on its face focuses on state regulation designed to require engine modification to prevent either creation of emissions in the engine or discharge of these pollutants from it. There is thus no clear or explicit preemption of state test cell regulation evident in § 233.

The next question is whether congressional intent to create such a preemption may be inferred. Federal preemption of aircraft emission regulation was designed to protect the engine manufacturer and operator against the chaos of multiple inconsistent state standards. State regulation of test cells in no way contravenes that purpose since the cells, unlike jet aircraft, are immobile and thus not subject to multiple standards. In addition, the regulation does not affect engine performance so as to conflict with federal interests in protecting the interstate use of aircraft engines but simply requires a certain level of pollution control on the test cell smokestacks. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 3 ELR 20393 (1973), confirms that federal preemption of aircraft emission regulation is limited to state regulations which touch the design, manufacture, or operation of the engines and does not extend to regulation which in no way affects engine performance. Therefore, following the principles outlined in Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), preemption of state test cell regulation is unwarranted in this case.

The opacity test standard used by the state to determine that the test cells were violating the applicable pollution control standards cannot be held either invalid or inappropriate as a matter of law. The court agrees with defendants that the Act does not create a right in the state to assess civil penalties against the United States, its officers, or its agencies. The federal government may not be held liable for such penalties in the absence of a specific statutory provision, Missouri Pacific R.R. Co. v. Ault, 265 U.S. 554 (1921), and the Act contains no such explicit authorization. See California v. Navy, 371 F. Supp. 82 (N.D. Cal. 1973).

The full text of this opinion is available from ELR (25 pp. $3.25, ELR Order No. C-1132).

Counsel for Plaintiffs
Roderick Walston, Daniel J. Taaffe, Deputy Attorneys General
6000 State Bldg., 350 McAllister St., San Francisco CA 94102
(415) 557-2544

John F. Powell, Richard W. Grieves
Bay Area Air Pollution Control District
939 Ellis St., San Francisco CA 94109
(415) 771-6000

Counsel for Defendants
James L. Browning, U.S. Attorney, Francis B. Boone, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Orrick, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]