The Attorney General (AG) of California, Kamala Harris has now asked the U.S. District Court for the Eastern District of California to dismiss all challenges including the primary commerce clause or constitutional violation to the California Air Resources Board (CARB) Statewide Truck and Bus rule brought by the Owner-Operator Independent Drivers Association (OOIDA).
In Harris’ motion to dismiss part of OOIDA’s original suit filed on Dec. 6, 2013, the AG claimed that the lawsuit’s counts against two primary CARB employees; Richard Corey and Mary Nichols, did not (1) Have correct procedural claims, as OOIDA sued the two in their “personal capacities,” rather than in their “official capacities,” and (2) the AG’s office claimed that no “party,” including OOIDA filed comments with the U.S. EPA during the California State Implementation Plan (SIP) comment period in 2011 and therefore no one or group can [apparently] go back in time to challenge the rule, and once the opportunity was missed has no standing in this entire legal process. Pretty much an absurd claim in CCTA’s opinion, and likely OOIDA’s as well.
In this response to OOIDA’s amended suit, the AG’s brief filed on May 15, 2014 in the United States District Court for the Eastern District of California, asked that OOIDA’s suit and all claims be dismissed with prejudice citing the exact same legal argument used by California in defending itself in California Dump Truck Owners v. Nichols that the EPA is a necessary and indispensable party and that the EPA was not included as a party in OOIDA’s lawsuit. California argues that, “OOIDA’s suit pertains to EPA’s [SIP] approval, so this Court must dismiss the suit for lack of jurisdiction, just as it did in the procedurally identical process to the CCTA suit (CDTOA v. Nichols).
The California Construction Trucking Association (CCTA), formerly known as the California Dump Truck Owners Association filed its 2011 lawsuit in the same federal district court challenging the legal basis of CARB’s rule but for violating the Federal Aviation Administration Authorization Act (FAAAA). That case was subsequently dismissed on identical claims that CCTA did not include the EPA as a defendant in the suit. Judge England’s court moved in a totally different direction from the CCTA’s injunction denial and determined that the CARB rule was federalized with approval of California’s SIP thus the EPA is the indispensable party to the CCTA lawsuit.
The CCTA disagrees with Judge England’s decision since it would have been impossible to name the U.S. EPA at the time the association originally filed suit because the EPA had not published any Notice in the Federal Register announcing amendments to California’s SIP. The publication of Notice by the EPA didn’t occur until six months after the CCTA originally sued.
CCTA appealed the decision of Judge England (the same judge overseeing the OOIDA case) to the United States Court of Appeals for the Ninth Circuit on January 16, 2012. No other trade association has filed a brief supporting CCTA in the Ninth Circuit Court of Appeals. If Judge England grants the AG’s request – which he almost certainly will considering his decision in the CCTA lawsuit, OOIDA would necessarily need to appeal to the Ninth Circuit citing virtually the same arguments being used by the CCTA in its appeal.
CCTA’s Executive Director, Lee Brown stated, “While we believe OOIDA’s case has serious merit, they have run into the same ‘legal buzz saw’ that we were already dealing with. Since our litigation has advanced much further in the Ninth, it is possible if they are serious about this, we could work together to ask the Court for a late amicus in support of our similar positions. Our counsel believes that if asked, it might be granted.”
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OOIDA Suit Challenging CARB