City & County of San Francisco v. U.S. Department of Transportation , 796 F.3d 993 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN No. 13-15855
FRANCISCO,
Plaintiff-Appellant, D.C. No.
3:12-cv-00711-
v. RS
U.S. DEPARTMENT OF
TRANSPORTATION; ANTHONY FOXX, OPINION
in his official capacity as Secretary,
Department of Transportation;
PIPELINE & HAZARDOUS MATERIALS
SAFETY ADMINISTRATION; MARIE
THERESE DOMINGUEZ, in her official
capacity as Deputy Administrator of
Pipeline & Hazardous Materials
Safety Administration,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted
May 13, 2015—San Francisco, California
Filed July 30, 2015
2 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
Before: Sidney R. Thomas, Chief Judge, John B. Owens,
Circuit Judge, and Anthony J. Battaglia,* District Judge.
Opinion by Chief Judge Thomas
SUMMARY**
Natural Gas Pipeline Safety Act
The panel affirmed the district court’s dismissal of an
action brought by the City and County of San Francisco
against the Secretary of Transportation and the Pipeline and
Hazardous Materials Safety Administration (the “Agency”),
alleging claims under the Natural Gas Pipeline Safety Act of
1968 and the Administrative Procedure Act, arising after a
natural gas transmission pipeline exploded in San Bruno,
California, causing multiple deaths and injuries and
widespread damage to property.
The panel held that the plain statutory language, the
statutory structure, the legislative history, the structure of
similar federal statutes, and interpretations of similar
statutory provisions by the Supreme Court and other circuits
led to its conclusion that the Pipeline Safety Act did not
authorize mandamus-type citizen suits against the Agency.
*
The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 3
The panel held that San Francisco’s claims – that the
Agency violated the Administrative Procedure Act by
(1) unlawfully withholding the action of deciding whether the
California Public Utility Commission adequately enforced
federal pipeline safety standards, and (2) arbitrarily and
capriciously approving the Commission’s certification and
providing federal funding to the Commission – were not
cognizable under the Administrative Procedure Act.
COUNSEL
Christine Van Aken (argued), Kristine A. Poplawski, Owen
J. Clements, and Dennis J. Herrera, City Attorney's Office for
the City and County of San Francisco, San Francisco,
California, for Plaintiff-Appellant.
Patrick G. Nemeroff (argued), Mark B. Stern, André Birotte,
Jr., and Stuart F. Delery, United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
Glenn Vanzura and Lee A. Linderman, Irell & Manella LLP,
Los Angeles, California, for Amicus Curiae Pipeline Safety
Trust.
OPINION
THOMAS, Chief Judge:
On September 9, 2010, a natural gas transmission pipeline
owned and operated by Pacific Gas & Electric Company
(“PG&E”) ruptured in San Bruno, California. The ensuing
explosion and fire killed eight people, injured dozens more,
4 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
and caused widespread damage to property. Fearing a
recurrence, the City and County of San Francisco (“San
Francisco”) filed suit against the Secretary of Transportation
(“Secretary”) and the Pipeline and Hazardous Materials
Safety Administration (“the Agency”), alleging that the
Agency failed to comply with the Natural Gas Pipeline Safety
Act of 1968, 49 U.S.C. § 60101 et seq. (“Pipeline Safety
Act”).
Under the Pipeline Safety Act, the Agency promulgates
minimum federal safety standards for natural gas pipelines
and pipeline facilities. The California Public Utility
Commission (“CPUC”) has assumed jurisdiction to regulate
and enforce the Pipeline Safety Act’s requirements as to
intrastate pipelines within California. San Francisco alleges
that the Agency violated the Pipeline Safety Act when it
approved the CPUC’s certification that its regulatory
activities meet the minimum federal standards set by the
Agency, and when it disbursed funding to the CPUC to
support monitoring and enforcement of intrastate pipelines in
California.
The issue in this case is whether San Francisco’s claims
may proceed, either under the Administrative Procedure Act
(“APA”) or under the Pipeline Safety Act’s citizen suit
provision. We conclude that they may not.
I
The soil beneath our feet is crisscrossed with natural gas
pipelines. There are 2.5 million miles of natural gas and
hazardous liquid pipelines throughout the United States,
including 100,000 natural gas pipelines in California. We
rely on these pipelines to supply our critical energy needs, but
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 5
they also pose public safety risks. Pipelines transport highly
flammable, often highly pressurized, natural gas to urban
areas through many aging pipelines originally designed for
use in lower population density regions.
Although interstate pipelines have been subject to federal
regulation since 1938, states retained exclusive jurisdiction
over regulation of pipelines wholly within their borders until
1968. In that year, Congress enacted the Pipeline Safety Act,
which empowered the Secretary to promulgate minimum
federal safety standards for all natural gas pipelines and
facilities. Since its creation in 2004, the Agency has
administered the Pipeline Safety Act pursuant to delegation
by the Secretary.
Intrastate pipeline regulation remains distinct from that of
interstate pipelines. Although states may not directly regulate
or impose additional or more stringent safety standards on
interstate pipelines, 49 U.S.C. § 60104(c), the Pipeline Safety
Act provides a strong role for state involvement in intrastate
pipeline regulation. If a state certifies that it has adopted the
minimum federal safety standards and is enforcing those
standards, the state assumes exclusive regulatory jurisdiction
over most intrastate pipelines within its borders. See id.
§ 60105(a)–(b). A state that has done so may choose to
impose additional or more stringent requirements on
intrastate pipelines so long as they continue to meet the
minimum federal safety standards established by the Agency.
Id. § 60104(c).
Unlike similar statutes that require more active federal
intervention, such as the Clean Air Act, the cooperative
federalism scheme established by the Pipeline Safety Act
contains only two short subsections describing the Secretary’s
6 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
authority to monitor state safety programs and reject a
certification. They are contained at the end of § 60105,
which lays out the process for states assuming jurisdiction
over intrastate pipelines:
(e) Monitoring.–The Secretary may monitor
a safety program established under this
section to ensure that the program complies
with the certification. A State authority shall
cooperate with the Secretary under this
subsection.
(f) Rejections of certification.–If after
receiving a certification the Secretary decides
the State authority is not enforcing
satisfactorily compliance with applicable
safety standards prescribed under this chapter,
the Secretary may reject the certification,
assert United States Government jurisdiction,
or take other appropriate action to achieve
adequate enforcement. The Secretary shall
give the authority notice and an opportunity
for a hearing before taking final action under
this subsection. When notice is given, the
burden of proof is on the authority to
demonstrate that it is enforcing satisfactorily
compliance with the prescribed standards.
Id. § 60105(e)–(f).
The Pipeline Safety Act also provides for federal funding
to states that assume jurisdiction under § 60105 up to 80% of
the costs reasonably required to carry out the safety program.
Id. § 60107(a). The Secretary’s authority to provide funding
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 7
is restricted to cases where the state ensures the Secretary that
it will provide the remaining costs of a safety program. Id.
§ 60107(b).
In addition, the Agency may withhold any part of a
payment when it decides that the authority is not carrying out
satisfactorily a safety program. Id. The Agency determines
the percentage (up to the allowable ceiling of 80%) of
funding it will provide to states by combining two equally
weighted metrics: (1) a score assigned to that state’s annual
progress report which must be submitted after certification;
and (2) a score resulting from an annual program evaluation
undertaken by the Agency. 49 C.F.R. § 198.13(b). These
scores reflect an assessment of the state’s policies and
procedures, its inspection practices and capacity, overall
enforcement activity, and other indicia of program
performance. Id. § 198.13(c).
California has participated in this cooperative federalism
scheme for decades. The CPUC has assumed responsibility
for regulating and enforcing a pipeline safety program for
intrastate pipelines and pipeline facilities pursuant to
certification under the Pipeline Safety Act. See Cal. Pub.
Util. Code § 955(b). In 2011, the CPUC received 71%
funding from the Agency as a result of the aggregate scoring
system.
II
This litigation arose in response to the disastrous 2010
natural gas pipeline failure and resulting explosion in San
Bruno, a fatal explosion in 2008 in Rancho Cordova, and a
2011 accident in Cupertino that caused significant property
damage. PG&E owned and operated all three pipelines
8 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
involved in the incidents. The National Transportation and
Safety Board (“NTSB”) determined the probable cause of the
San Bruno explosion to be “inadequate quality assurance and
quality control in 1956” (when the pipeline was relocated)
and an “inadequate pipeline integrity management program.”
Nat’l Transp. Safety Bd., NTSB/PAR-11/01, Pacific Gas and
Electric Company Natural Gas Transmission Popeline
Rupture and Fire, San Bruno, California, Sept. 9, 2010, at xii
(2011), available at http://ntsb.gov/investigations/Accident
Reports/Pages/PAR1101.aspx. The NTSB report also cited
regulatory provisions exempting the ruptured pipeline from
pressure testing requirements, the CPUC’s failure to detect
PG&E’s inadequate safety program, and PG&E’s “flawed
emergency response procedures and delay” as contributory
factors. Id. NTSB’s chairman, joined by two other members,
wrote a concurrence observing that PG&E exploited
weaknesses in a lax system of oversight and that “regulators
. . . placed a blind trust in the companies that they were
charged with overseeing—to the detriment of public safety.”
Id. at 135.
Citing the “substantial and unnecessary risk” posed to its
citizens’ lives and property by allegedly inadequate
monitoring and regulation, San Francisco sued the Agency
and the United States Department of Transportation.
Invoking the Pipeline Safety Act’s citizen suit provision, San
Francisco sought declaratory and injunctive relief to compel
the Agency to comply with its duties under the Pipeline
Safety Act.
After holding that San Francisco met constitutional
standing requirements to bring a claim, the district court
dismissed the suit with leave to amend because the claim was
not cognizable under the Pipeline Safety Act’s citizen suit
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 9
provision. The court explained that “while § 60121 would
authorize a suit against government entities to the extent they
engage in activities regulated by the [Pipeline Safety
Act]—such as constructing or operating pipelines—it is not
an appropriate vehicle for seeking mandamus relief regarding
defendants’ performance of their regulatory obligations.”
San Francisco amended its complaint to include claims
under the APA, arguing that the Agency’s approval of the
CPUC’s certification was arbitrary and capricious in violation
of 5 U.S.C. § 706(2)(A) and also constituted a failure to act
under 5 U.S.C. § 706(1). The district court dismissed the
Amended Complaint for failing to state a claim and lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(6) and Fed. R. Civ. P. 12(b)(1). The court reasoned
that San Francisco’s failure to act claim was in essence a
challenge to the sufficiency of the Agency’s action, not a
genuine inaction claim. The court then characterized San
Francisco’s § 706(2)(A) claim as “coextensive” and
dismissed it as well.
We have jurisdiction over the district court’s entry of final
judgment pursuant to 28 U.S.C. § 1291, and we review the
district court’s dismissal de novo. Lacey v. Maricopa Cnty.,
693 F.3d 896, 911 (9th Cir. 2012) (en banc); Ctr. for Policy
Analysis on Trade & Health v. Office of the U.S. Trade
Representative, 540 F.3d 940, 944 (9th Cir. 2008).
III
The district court properly concluded that the Pipeline
Safety Act’s citizen suit provision does not allow mandamus-
type actions against the Agency in its capacity as regulator.
10 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
When examining the scope of a private right of action
under a federal statute, we employ the usual tools of statutory
construction, looking first at the plain words of the statute,
“particularly to the provisions made therein for enforcement
and relief.” Middlesex Cnty. Sewerage Auth. v. Nat’l Sea
Clammers Ass'n, 453 U.S. 1, 13 (1981). “[W]hen deciding
whether the language is plain, we must read the words ‘in
their context and with a view to their place in the overall
statutory scheme.’” King v. Burwell, __ U.S. __, 135 S. Ct.
2480 (2015) (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000)). In addition, we examine
the legislative history, the statutory structure, and “other
traditional aids of statutory interpretation” in order to
ascertain congressional intent. Middlesex Cnty., 453 U.S. at
13. As part of statutory analysis, “[w]e also look to similar
provisions within the statute as a whole and the language of
related or similar statutes to aid in interpretation.” United
States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013).
The Pipeline Safety Act, by its plain language, allows
only a very limited private right of action. It permits
injunctive citizen suits against the United States or other
entities “for a violation of this chapter or a regulation
prescribed or order issued under this chapter.” 49 U.S.C.
§ 60121(a). In other words, private citizen suits are
authorized for substantive statutory or regulatory violations.
By its terms, the provision does not authorize a mandamus-
type action to compel the Agency to perform non-
discretionary regulatory duties.
The statutory structure supports the conclusion. Indeed,
mandamus actions are authorized as part of the Pipeline
Safety Act’s whistleblower protection provisions. 49 U.S.C.
§ 60129(c). The inclusion of such a remedy in another
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 11
portion of the statute indicates that Congress was aware of the
remedy and how to create it. The fact that Congress chose
not to include a mandamus-type remedy in its citizen suit
provision is significant. “[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 464 U.S.
16, 23 (1983) (alteration in original).
The Pipeline Safety Act’s legislative history buttresses the
conclusion that Congress did not intend to create a citizen suit
mandamus remedy, emphasizing that the citizen suit
provision “would not supplant the Secretary’s efforts for
enforcement and compliance,” but was “designed to assist the
Department in its enforcement and compliance activities.” S.
Rep. No. 94-852, at 8 (1976). San Francisco points to a floor
statement by a single legislator tangentially suggesting the
possibility of mandamus-type actions to enforce federal
regulations. See 122 Cong. Rec. 32,725 (1976) (statement of
Rep. Brown). However, as the Agency points out, there were
no similar statements from other lawmakers or any further
discussion of the possibility of mandamus-type actions, which
suggests that the cited statement was merely “a single
outlying statement” that must not be dispositive. See Gen.
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599 (2004);
see also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979)
(“The remarks of a single legislator, even the sponsor, are not
controlling in analyzing legislative history.”).
Examination of the statutory language of similar statutes
also bolsters the conclusion that the Pipeline Safety Act does
not authorize mandamus actions against the Agency. Of
significance here is the statutory language of citizen suit
12 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
provisions in similar statutes enacted during the same time
period as the Pipeline Safety Act. Those statutes tend to
include two separate citizen suit provisions: one that provides
for suits alleging a violation of a statute’s substantive
provisions, and one that authorizes suits against the agency
head for failing to perform a nondiscretionary duty. See, e.g.,
16 U.S.C. § 1540(g)(1)(B)–(C) (Endangered Species Act);
42 U.S.C. § 7604(a)(1)–(2) (Clean Air Act). The latter type
of provision, which specifically provides for mandamus
relief, is conspicuously absent from the Pipeline Safety Act.
The Supreme Court has interpreted a very similar citizen
suit provision in the Endangered Species Act (“ESA”) as not
authorizing suits against an agency alleging improper
implementation of a statute. In Bennett v. Spear, 520 U.S.
154, 173 (1997), the Court held that “the term ‘violation’
does not include the Secretary’s failure to perform his duties
as administrator of the ESA.” The district court in this case
relied heavily on Bennett in holding that the Pipeline Safety
Act’s citizen suit provision, like the similarly-worded
provision at stake in Bennett, only provides for suits against
the government in its capacity as a regulated party.
San Francisco attempts to distinguish Bennett by pointing
out that, unlike under the ESA, the federal government is not
subject to the Pipeline Safety Act’s substantive requirements.
See 49 U.S.C. §§ 60101(a)(17), 60108, 60117, 60118(a)(1).
Furthermore, it argues, Bennett reflects the Court’s need to
harmonize two side-by-side citizen suit provisions. See
520 U.S. at 173 (explaining that allowing suits under
16 U.S.C. § 1540(g)(1)(A) for any violation of the ESA
would render § 1540(g)(1)(C) a nullity).
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 13
However, Bennett itself approached the question by
looking to the statute as a whole. 520 U.S. at 174. Doing so
here, the arguments in support of the district court’s
application of Bennett to the Pipeline Safety Act outweigh
those against it. All three reasons cited by the Bennett Court
support the district court’s conclusion.1
First, San Francisco’s argument that the provision
authorizing mandamus relief in the Pipeline Safety Act’s
whistleblower protection section, 49 U.S.C. § 60129(c), need
not be harmonized with the citizen suit provision, id.
§ 60121(a), is not persuasive. While the proximity of the two
citizen suit provisions in the ESA may have reinforced the
need to read them in complementary fashion, the mere fact
that the mandamus provision in the Pipeline Safety Act is
eight sections removed from the general citizen suit provision
does not mean that they need not be read together as part of
a comprehensive statutory scheme. The inclusion of
§ 60129(c) indicates that Congress was well aware of its
ability to specifically authorize mandamus suits against the
Secretary.
Second, the use of “violation” in § 60121(a) also supports
the district court’s conclusion. Elsewhere in the Pipeline
Safety Act, “violation” consistently and exclusively refers to
substantive violations by regulated parties. Like the ESA, the
Pipeline Safety Act provides for substantial civil and criminal
1
The Court in Bennett explained that (1) the two citizen suit provisions
must be read compatibly with each other; (2) the use of the term
“violation” elsewhere in the statute indicates it was meant to cover only
the behavior of regulated parties; and (3) a broad reading of “violation” to
include any maladministration of the statute would abrogate the APA’s
final agency action requirement. 520 U.S. at 172–74.
14 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
penalties for such violations. See, e.g., 49 U.S.C. § 60122(a)
(providing for civil penalties up to $200,000 per violation of
the Pipeline Safety Act); id. § 60123(a) (providing for
criminal liability for knowing and willful violations of the
Pipeline Safety Act); 16 U.S.C. § 1540(a) (authorizing
substantial civil penalties for violations of the ESA); id.
§ 1540(b) (creating criminal liability for violations of the
ESA); id. § 1540(e)(3) (authorizing warrantless arrests for
violations of the ESA). As in the context of the ESA, a
“violation” of the Pipeline Safety Act is “most unlikely to
refer to failure by the Secretary or other federal officers and
employees to perform their duties in administering the
[Pipeline Safety Act].” See Bennett, 520 U.S. at 173. San
Francisco argues that while the ESA penalty provisions apply
to “any violation,” the Pipeline Safety Act’s penalty
provisions specify violations that could only be committed by
a regulated party, and thus there is no risk of the implausible
result of the Secretary being arrested for failure to perform
her statutory duties. However, there is no reason to believe
that Congress used “violation” to mean a much broader set of
actions in § 60121(a) than it did in those other provisions.
Third, San Francisco’s permissive reading of § 60121(a)
would abrogate the APA’s “final agency action” requirement
to the same degree that the plaintiffs’ interpretation of the
ESA would have in Bennett. See 520 U.S. at 174. “Any
procedural default, even one that had not yet resulted in a
final disposition of the matter at issue, would form the basis
for a lawsuit.” Id. As with the ESA, there is no clear
statutory directive militating such an “extraordinary regime.”
See id.
Our sister circuits’ cases support this construction.
Following Bennett, the Fifth and Tenth Circuits interpreted a
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 15
citizen suit provision similar to the one at issue here to not
allow review of agency implementation of the Outer
Continental Shelf Lands Act. Amerada Hess Corp. v. Dep’t
of Interior, 170 F.3d 1032, 1034–35 (10th Cir. 1999)
(agreeing with the Fifth Circuit that the citizen suit provision
does not authorize suits because they are available under the
APA and because such an interpretation would abrogate the
APA); OXY USA, Inc. v. Babbitt, 122 F.3d 251, 258–59 (5th
Cir. 1997) (holding that the citizen suit provision did not
apply because it would provide “a means of obtaining
‘umbrella’ review for a series of agency decisions that were
or will be otherwise subject to judicial review under the
APA” and because “neither the text nor legislative history of
[the Act] manifests congressional intent to repeal the APA”).
A recent Sixth Circuit decision declined to allow a suit under
the citizen suit provision of the Clean Air Act when only one
of the three reasons cited by Bennett was present in force.
See Sierra Club v. Korleski, 681 F.3d 342, 348–50 (6th Cir.
2012) (disallowing a citizen suit against a state for failure to
comply with the CAA on the grounds that (1) the term
“violation” used elsewhere in the CAA indicates that it was
not meant to include such action; and (2) such a broad
interpretation of “violation” would be inconsistent with the
sanctions regime of the CAA).
In sum, the plain statutory language, the statutory
structure, the legislative history, the structure of similar
federal statutes, and interpretations of similar statutory
provisions by the Supreme Court and our sister circuits lead
to the conclusion that the Pipeline Safety Act does not
authorize mandamus-type citizen suits against the Agency.
16 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
IV
The district court also properly concluded that San
Francisco’s claims were not cognizable under the APA. San
Francisco’s amended complaint alleged that the Agency
violated the APA by (1) unlawfully withholding the action of
deciding whether the CPUC adequately enforces federal
pipeline safety standards, and (2) arbitrarily and capriciously
approving the CPUC’s certification and providing federal
funding to the CPUC.
A
Judicial review of agency action is not available for
decisions that are “committed to agency discretion by law.”
5 U.S.C. § 701(a)(2). The Supreme Court has explained that
a decision is committed to agency discretion by law when “a
court would have no meaningful standard against which to
judge the agency’s exercise of discretion,” such as “where
statutes are drawn in such broad terms that in a given case
there is no law to apply.” Heckler v. Chaney, 470 U.S. 821,
830 (1985) (internal quotation marks omitted).
While this “narrow exception” only occurs in “rare
instances,” Citizens to Pres. Overton Park, Inc. v. Volpe,
401 U.S. 402, 410 (1971), Heckler carved out a presumption
of unreviewability of an agency’s decision not to take
enforcement action. 470 U.S. at 831. The Court set forth
several reasons why agency enforcement decisions are
generally not suitable for judicial review: (1) “an agency
decision not to enforce often involves a complicated
balancing of a number of factors which are peculiarly within
its expertise,” such as allocation of resources and agency
policies and priorities; (2) an agency is better equipped to
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 17
make that balancing than a court; (3) an agency’s refusal to
enforce does not implicate personal liberty or property rights,
which courts are often called on to protect; and (4) an
agency’s decision not to enforce is analogous to prosecutorial
discretion, an arena in which courts have traditionally not
interfered. Id. at 831–32. Heckler went on to clarify that the
presumption of unreviewability is rebuttable “where the
substantive statute has provided guidelines for the agency to
follow in exercising its enforcement powers.” Id. at 832–33.
Actions committed to agency discretion under 5 U.S.C.
§ 701(a)(2) are not limited to decisions not to enforce. The
Supreme Court has held that the allocation of funds from a
lump-sum appropriation is another decision that is committed
to agency discretion by law. Lincoln v. Vigil, 508 U.S. 182,
192 (1993). The Court explained that Congress’
appropriation of a lump sum without statutory restriction
creates the inference that Congress does not intend to impose
legally binding restrictions on agency decisionmaking, and
courts may not review the allocation of those funds under
§ 701(a)(2) so long as the agency allocates them to meet
permissible statutory objectives. Id. at 192–93.
1
Applying the principles of Heckler, the district court
properly determined that the Agency’s decision not to reject
the CPUC’s certification was unreviewable under § 701(a)(2)
of the APA. The Agency’s approval of the CPUC’s annual
certification is a decision not to enforce, a decision that is
presumptively unreviewable under § 701(a)(2) of the APA.
The structure of the Pipeline Safety Act supports this
conclusion.
18 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
First, § 60105(a) provides that a state assumes jurisdiction
over its intrastate pipelines automatically upon submitting a
certification. The Agency may decide to subsequently reject
the certification, but before doing so it must provide the state
authority with notice and an opportunity for a hearing.
49 U.S.C. § 60105(f). The Agency “accepts” certifications by
merely declining to act. By providing that “the Secretary may
reject [a] certification,” id. (emphasis added), the statute
makes clear that the decision to reject a certification is
discretionary and therefore will involve balancing a number
of considerations, including availability and allocation of
agency resources, the predicted outcome of any hearing, and
agency policies and priorities. The Agency receives
certifications from over fifty state authorities, and must
choose where to expend its resources in challenging a
certification and, if it ultimately rejects one, assuming
responsibility for enforcement in that state. In short, the
Agency requires regulatory flexibility in deciding how to
allocate enforcement resources.
Second, the federalism structure of the Pipeline Safety
Act favors state assumption of jurisdiction. Management of
this delicate federal-state relationship was delegated by
Congress to the Secretary, and courts are not institutionally
well-equipped to micromanage it.
Third, the text of the statute provides no indication that
Congress intended to restrict agency discretion. While the
use of the word “shall” elsewhere in the Pipeline Safety Act
clearly indicates that Congress had no trouble imposing duties
on the Secretary, the relevant sections to certification are
peppered with the classic language of discretion. The Agency
“may reject [a certification]” “[i]f the Secretary decides the
State authority is not enforcing satisfactorily compliance with
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 19
applicable safety standards.” 49 U.S.C. § 60105(f) (emphases
added). Without receiving any certification the Secretary
“may” also “make an agreement with a State authority” to
assist in enforcing pipeline safety standards. Id. § 60106(a)
(emphasis added). The Secretary is not even directly required
to monitor a state safety program, but she “may” (and the
State authority “shall” comply if she does so). Id. § 60105(e)
(emphases added). In contrast to the intrastate pipeline
context at stake here, the Pipeline Safety Act makes
termination of state oversight of interstate pipelines
mandatory in certain circumstances: “The Secretary shall end
an agreement for the oversight of interstate pipeline
transportation if the Secretary finds that . . . continued
participation by the State authority in the oversight of
interstate pipeline transportation would not promote pipeline
safety.” Id. § 60106(e)(2) (emphasis added). And while “the
mere fact that a statute contains discretionary language does
not make agency action unreviewable,” Beno v. Shalala,
30 F.3d 1057, 1066 (9th Cir. 1994), it certainly places
additional weight on that side of the scale. See id. (explaining
that the analysis required by 5 U.S.C. § 701(a)(2) is statute-
specific and discretionary language has been one of several
reasons provided for concluding that a statutory provision
makes an agency action unreviewable).
For these reasons, we agree with the district court that the
Agency’s decision not to pursue rejection of the CPUC’s
certification is therefore unreviewable under § 701(a)(2) of
the APA.
2
The district court also properly concluded that the
Agency’s annual grant of funds to the CPUC is a decision
20 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
presumptively committed to agency discretion, and therefore
non-reviewable.
“[T]he very point of a lump-sum appropriation is to give
an agency the capacity to adapt to changing circumstances
and meet its statutory responsibilities in what it sees as the
most effective or desirable way.” Lincoln, 508 U.S. at 192.
For the Agency, that may mean creating incentives for states
to improve their regulatory efforts in targeted ways,
calibrating funding to states to best balance competing
priorities, or devoting particular resources to state authorities
that need the most assistance or are pioneering innovative
practices. The Agency is “far better equipped than the courts
to deal with the many variables involved in the proper
ordering of its priorities.” Id. at 193 (quoting Heckler,
470 U.S. at 831–32).
“[C]ourts may not use the APA to review an agency’s
decision to allocate funds absent some statutory constraint on
the agency’s discretion.” Los Coyotes Band of Cahuilla &
Cupeño Indians v. Jewell, 729 F.3d 1025, 1038 (9th Cir.
2013). The Pipeline Safety Act provides some guidance to
the Secretary in § 60107(a)–(b). Congress demonstrated that
it knew how to place definitive restrictions on funding of state
authorities by stating that the Agency may provide funds
“only when the authority ensures . . . that it will provide the
remaining costs” and by limiting the amount of funds to 80%
of the amount reasonably required by the state program.
49 U.S.C. § 60107(a)–(b) (emphasis added).
The phrase “reasonably requires” in § 60107(a) indicates
that Congress intended to vest the Agency with interpretative
discretion. See Helgeson v. Bureau of Indian Affairs,
153 F.3d 1000 (9th Cir. 1998). In Helgeson, we held that a
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 21
decision to reject an Indian Revolving Fund loan application
was unreviewable under 5 U.S.C. § 701(a)(2) because the
statute authorizing the Bureau of Indian Affairs to issue
revolving loans conditioned the availability of loans on the
existence of “a reasonable prospect of repayment,” id. at
1003–04 (quoting 25 U.S.C. § 1463). We concluded that
Congress committed the assessment of whether that prospect
existed to the judgment of the agency. Id. In arriving at that
determination, we also considered the language and structure
of the authorizing statute and the nature of the subject matter.
As in that case, where Congress used highly discretionary
language and the decision involved allocation of financial
resources, the Pipeline Safety Act commits the decision of
what is “reasonably required” to carry out a safety program
to the expertise of the agency.
Finally, it is significant that San Francisco does not argue
that the Agency violated the statutory guidelines. It simply
does not agree with the choices the Agency made. San
Francisco may well have a good policy argument, but such
decisions are committed to agency discretion.
B
The district court correctly rejected San Francisco’s claim
pursuant to 5 U.S.C. § 706(1) that the Agency unlawfully
withheld making a decision as to the adequacy of the CPUC’s
regulation of intrastate gas pipelines before accepting its
certification. The Agency characterizes this claim as a
programmatic challenge to its implementation of the statute.
We agree with the district court that even if the Agency has
some mandatory duty to oversee state enforcement efforts,
San Francisco’s § 706(1) claim is merely a “complaint[]
about the sufficiency of an agency action ‘dressed up as an
22 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.
agency’s failure to act.’” Ecology Ctr., Inc. v. U.S. Forest
Serv., 192 F.3d 922, 926 (9th Cir. 1999). The failure to act
claim is a repackaged version of San Francisco’s challenge to
the Agency’s decision not to pursue rejection of the CPUC’s
certification, a close analog to a decision not to enforce. As
we have explained, decisions not to enforce are
presumptively unreviewable under 5 U.S.C. § 701(a)(2).
V
San Francisco has presented very troubling allegations
about the Agency’s approach to monitoring the CPUC’s
regulation of intrastate pipelines. However, “[w]e have no
authority to compel agency action merely because the agency
is not doing something we may think it should do.” Zixiang
Li v. Kerry, 710 F.3d 995, 1004 (9th Cir. 2013). Neither the
Pipeline Safety Act nor the APA authorize San Francisco’s
claims. Therefore, the district court properly dismissed the
action. We need not, and do not, reach any other argument
raised by the parties.
AFFIRMED.