Romoland School Dist v. Inland ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMOLAND SCHOOL DISTRICT; 
CENTER FOR COMMUNITY
ACTION AND ENVIRONMENTAL
JUSTICE; COMMUNITIES FOR A BETTER
ENVIRONMENT; CALIFORNIA
UNIONS FOR RELIABLE ENERGY;
KRISTOPHER JOHNS; DONALD LEE
No. 06-56632
SELBY, JR.,
Plaintiffs-Appellants,
 D.C. No.
CV-06-02514-AG
v.
OPINION
INLAND EMPIRE ENERGY CENTER,
LLC; SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT
(SCAQMD); BARRY R.
WALLERSTEIN, D. Env. In his
official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Ronald S. W. Lew and Andrew J. Guilford,
District Judges, Presiding
Argued and Submitted
March 3, 2008—Pasadena, California
Filed November 18, 2008
Before: J. Clifford Wallace, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould;
Concurrence by Judge Wallace
15419
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15423
COUNSEL
Marc D. Joseph and Suma Peesapati, Adams Broadwell
Joseph & Cardozo, South San Francisco, California, for the
plaintiffs-appellants.
15424 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
Robert A. Wyman, Michael G. Romey, and Ernest J. Hahn,
Latham & Watkins, LLP, Los Angeles, California, for
defendant-appellee Inland Empire Energy Center.
Bradley R. Hogin, Woodruff Spradlin & Smart, Orange, Cali-
fornia, for defendants-appellees South Coast Air Quality
Management District and Barry R. Wallerstein.
OPINION
GOULD, Circuit Judge:
The Romoland School District and several individuals and
environmental groups, (collectively, “Plaintiffs”) appeal the
denial of their motion for a preliminary injunction and the dis-
missal with prejudice of their two claims against Inland
Empire Energy Center (“IEEC”), a wholly-owned subsidiary
of General Electric Company. Plaintiffs brought suit against
IEEC under the citizen suit provision of the Clean Air Act
(“CAA” or “Act”), 42 U.S.C. § 7604, in connection with
IEEC’s plans to construct an 810-megawatt power plant
approximately 1,100 feet from the Romoland Elementary
School in Riverside County, California. IEEC’s motion to dis-
miss contended, among other things, that the district court
lacked jurisdiction over the suit because IEEC had been
granted a permit under Title V of the CAA, 42 U.S.C.
§§ 7661-7661f, and such permits may not be challenged in
civil or criminal enforcement proceedings in federal district
court under 42 U.S.C. § 7604.
Plaintiffs also included as a defendant in their CAA action
the South Coast Air Quality Management District (“the air
district” or “SCAQMD”),1 the local air pollution control
1
Plaintiffs also brought suit against Barry R. Wallerstein, an executive
officer of SCAQMD, in his official capacity. However, as Wallerstein is
represented by the same counsel as the air district and has not filed any
motions in his own right, the terms “air district” and “SCAQMD” will be
used in this opinion to refer collectively to the defendant air district and
to defendant Wallerstein.
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15425
agency that issued the relevant permit and authorized IEEC to
begin construction of the power plant. After the district court
denied Plaintiffs’ motion for a preliminary injunction and dis-
missed their claims against IEEC under Federal Rule of Civil
Procedure 12(b)(6), Plaintiffs sought voluntarily to dismiss
their claims against the air district under Federal Rule of Civil
Procedure 41(a)(2) to gain “final judgment for purposes of an
appeal.” The district court granted Plaintiffs’ motion, but the
accompanying order did not state that the dismissal of the
claims against the air district was with prejudice.
We must resolve two threshold issues of jurisdiction before
we may consider the merits of Plaintiffs’ claims: (1) whether
the district court’s dismissals of the claims in this case present
us with a final decision pursuant to 28 U.S.C. § 1291; and (2)
whether the Central District of California was an appropriate
forum, and 42 U.S.C. § 7604 an appropriate statutory basis,
for Plaintiffs’ challenge such that the district court had juris-
diction over it pursuant to 28 U.S.C. § 1331. We conclude
that the orders appealed from are part of a final judgment and
thus that we have jurisdiction over this case, but that the dis-
trict court did not. Accordingly, we affirm the district court’s
dismissal of the claims against IEEC with prejudice, hold that
the claims against the air district should also be deemed to be
dismissed with prejudice notwithstanding the voluntary dis-
missal order’s silence on this point, and further hold that all
proceedings on Plaintiffs’ motion for a preliminary injunction
are void because the district court was without jurisdiction to
entertain that motion.
I
A
Congress passed the Clean Air Act in 1970 “to protect and
enhance the quality of the Nation’s air resources so as to pro-
mote the public health and welfare and the productive capac-
ity of its population.” 42 U.S.C. § 7401(b)(1). Towards this
15426 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
end, the United States Environmental Protection Agency
(“EPA”) is responsible for identifying air pollutants that may
endanger public health and welfare and for promulgating stan-
dards for the maximum allowable concentrations of each such
pollutant in the air, known as National Ambient Air Quality
Standards or NAAQS. 42 U.S.C. §§ 7408(a), 7409. The CAA
further requires the EPA to divide each state into air quality
control regions, see id. § 7407(b)-(c). SCAQMD oversees one
such region in California, the South Coast Air Basin, compris-
ing Orange County and portions of Los Angeles, Riverside,
and San Bernardino Counties. See Engine Mfrs. Ass’n v.
South Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1035
(9th Cir. 2007). Each air quality control region is labeled as
either “attainment” or “nonattainment” for each identified
pollutant depending on whether the average level of that pol-
lutant in the air in that region is at or below (attainment) or
above (nonattainment) the level mandated by the NAAQS.
South Coast Air Basin is an attainment area for some air pol-
lutants like lead but is a nonattainment area for ozone, carbon
monoxide, and particulate matter smaller than ten microns in
diameter, known as PM10.
Each state must also submit to EPA a State Implementation
Plan or SIP establishing “enforceable emission limitations and
other control measures” designed to preserve attainment of
the NAAQS in attainment areas and achieve attainment in
nonattainment areas. See 42 U.S.C. § 7410(a)(2)(A). One
required element of all SIPs for states with nonattainment
areas, introduced into the CAA through the 1977 amend-
ments, is a permitting program for new or modified major sta-
tionary sources of air pollution, such as electrical generators
or factory smokestacks, in those nonattainment areas. See 42
U.S.C. §§ 7410(a)(2)(C), 7502(c)(5). Under this “new source
review” (“NSR”) program, any new project or modification to
an existing project that would emit more than a threshold
amount of a pollutant for which that region has not attained
the NAAQS must apply for a permit to construct and operate
that pollution source, and such a permit may only be granted
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15427
if the project uses technology that will ensure “the lowest
achievable emission rate” and obtains emission reduction
credits to offset the emissions that it will produce. 42 U.S.C.
§ 7503(a)(1)-(2). SCAQMD implements its NSR program,
now part of the California SIP, through Rule 1303,2 which
provides that the air district “shall deny the Permit to Con-
struct for any new or modified source which results in a net
emission increase in a nonattainment air contaminant” unless
the applicant shows through modeling that the proposed activ-
ity “will not cause a significant increase” in pollution and that
all emissions will be offset with emission reduction credits.
See Rule 1303(b)(1)-(2).3
Once a local rule, like SCAQMD Rule 1303, becomes part
of an EPA-approved SIP after a public notice and comment
period, it becomes federally enforceable in district court
through the CAA’s citizen suit provision, 42 U.S.C. § 7604.
This provision states that “[a]ny person may commence a
civil action on his own behalf against any person . . . who is
alleged . . . to be in violation of . . . an emission standard or
limitation,” including “any . . . standard, limitation, or sched-
ule established under . . . any . . . State Implementation Plan
2
The air district’s rules may be accessed at http://yosemite.epa.gov/R9/
r9sips.nsf/Agency?ReadForm&count=500&state=California&cat=South+
Coast+Air+Quality+Management+District-Agency-Wide+Provisions (last
visited August 14, 2008).
3
The air district has promulgated another NSR provision, Rule 2005,
which applies to the air district’s Regional Clean Air Incentives Market,
or RECLAIM, program, a special permitting program for large emitters of
nitrogen and sulfur oxides. (The IEEC power plant that is the subject of
this litigation received its permit through the RECLAIM program.) Rule
2005 contains modeling and offsets requirements that are virtually identi-
cal to those in Rule 1303. See, e.g., Rule 2005(b)(1)(B) (“The [air district]
shall not approve the application for a . . . permit to authorize construction
or installation of a new or relocated facility unless the applicant demon-
strates [through modeling] that . . . the operation of any emission source
located at the . . . facility will not cause a violation or make significantly
worse an existing violation of the . . . national ambient air quality standard
at any receptor location in the District . . . .”).
15428 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
approved by the [EPA] administrator . . . .” 42 U.S.C.
§§ 7604(a)(1), 7604(f)(3)-(4). “The district courts shall have
jurisdiction, without regard to the amount in controversy or
the citizenship of the parties, to enforce such an emission
standard or limitation . . . and to apply any appropriate civil
penalties . . . .” Id. § 7604(a).
In 1990, Congress amended the CAA to add a nationwide
system of operating permits like those mandated by other
environmental laws such as the Clean Water Act. See S. Rep.
No. 101-228, at 349 (1989) [hereinafter Senate Report]. The
1990 amendments made it “unlawful . . . to operate” many
sources of air pollution, including any source located in a
nonattainment region that would already have been subject to
the NSR requirements of 42 U.S.C. § 7503, “except in com-
pliance with a permit issued by a permitting authority under
this title.” 42 U.S.C. § 7661a(a). These operating permit pro-
visions, commonly referred to as Title V of the CAA, also
specify that “[e]ach permit issued under this title shall include
enforceable emission limitations and standards, a schedule of
compliance, . . . and such other conditions as are necessary to
assure compliance with applicable requirements of this Act,
including the requirements of the applicable [state] implemen-
tation plan.” 42 U.S.C. § 7661c(a). Rather than imposing an
additional set of requirements on pollution sources, this per-
mitting scheme was intended to “incorporate the requirements
of the Act (including SIP requirements) that are [already]
applicable to the source.” Senate Report at 350. See also 57
Fed. Reg. 32250, 32251 (July 21, 1992) (EPA notice of regu-
lations implementing Title V) (“While Title V generally does
not impose substantive new requirements, . . . [t]he program
will . . . clarify, in a single document, which requirements
apply to a source and, thus, should enhance compliance with
the requirements of the Act.”).
As with the SIPs under 42 U.S.C. § 7410, each state or
local pollution control agency was to design a program for
administering Title V permits that EPA would either approve
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15429
or disapprove after an opportunity for public comment. 42
U.S.C. § 7661a(d)(1).4 Shortly after Title V was added to the
CAA in 1990, EPA promulgated regulations setting out the
minimum elements that such state programs must contain to
gain EPA approval, and one of these elements concerned the
available mechanisms for judicial review:
[The state’s proposed program must] (x) [p]rovide
an opportunity for judicial review in State court of
the final permit action by the applicant, any person
who participated in the public participation process
provided pursuant to § 70.7(h) of this part, and any
other person who could obtain judicial review of
such actions under State laws. . . . [The program
must also] (xii) [p]rovide that the opportunity for
judicial review described in paragraph (b)(3)(x) of
this section shall be the exclusive means for obtain-
ing judicial review of the terms and conditions of
permits, and require that such petitions for judicial
review must be filed no later than 90 days after the
final permit action, or such shorter time as the State
shall designate.
40 C.F.R. § 70.4(b)(3)(x), (xii).
Title V differs from earlier CAA provisions in that EPA
exercises a greater degree of ongoing oversight, reviewing not
only the states’ permit programs but individual permit appli-
cations and permits as well. 42 U.S.C. § 7661d(a)(1). More-
over, EPA has veto power over Title V permits: “If any
permit contains conditions that are determined by the [EPA]
Administrator as not in compliance with the applicable
4
SCAQMD’s Title V permit program is codified in Rules 3000-3008
and received final approval from EPA on November 30, 2001. See 40
C.F.R. pt. 70, appendix A, California (dd)(2); 66 Fed. Reg. 63503(December 7, 2001) (notice granting final approval to 34 operating permit
programs in California, including that of SCAQMD).
15430 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
requirements of this Act, including the requirements of an
applicable [state] implementation plan, the Administrator
shall . . . object to its issuance.” 42 U.S.C. § 7661d(b)(1). If
EPA objects to a permit, it may not be issued unless it is first
revised to take the objection into account. Id. at
§§ 7661d(b)(3), 7661d(c).
If EPA does not object within 45 days of receiving a pro-
posed permit, “any person may petition the Administrator [to
make such an objection] within 60 days after the expiration of
the 45-day review period . . . based only on objections to the
permit that were raised with reasonable specificity during the
public comment period provided by the permitting agency
. . . .” Id. at § 7661d(b)(2). Within 60 days of receiving such
a petition, EPA must either grant the petition and make the
proposed objection if the petitioner successfully demonstrates
“that the permit is not in compliance with the requirements of
this Act,” or deny the petition. Id. “Any denial of such peti-
tion shall be subject to judicial review under” 42 U.S.C.
§ 7607, a CAA provision concerning judicial review of
agency actions. Id. That judicial review provision allows for
direct review of “locally or regionally applicable” EPA
actions in the court of appeals for the circuit in which the
action arose, but also states that “[a]ction of the Administrator
with respect to which review could have been obtained under
[this section] shall not be subject to judicial review in civil or
criminal proceedings for enforcement.” 42 U.S.C.
§ 7607(b)(1)-(2).
B
New power plants in Riverside County must undergo over-
lapping certification processes before they may be built, some
of which track the requirements of the federal CAA and oth-
ers that are unique to California or to the air district. The Cali-
fornia Energy Commission (“CEC”) assesses the
environmental and public health impacts of any proposed
power plant with a generating capacity of more than 50 mega-
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15431
watts and has the sole authority to certify the construction and
operation of a power plant of that size. See Cal. Pub. Res.
Code § 25500. Before CEC can grant this certification, how-
ever, it must forward the application to the local air district,
which in turn determines whether the proposed plant meets
the requirements of NSR and all other applicable local, state
and federal air pollution regulations. See Cal. Code Regs tit.
20, § 1744.5. This review process has two steps within
SCAQMD: First, after its initial evaluation, the air district
issues a Preliminary Determination of Compliance (“PDOC”),
and this document contains any necessary conditions the
applicant must meet for final approval. Second, after a public
comment period, the air district issues a Final Determination
of Compliance (“FDOC”). Only after the air district has
issued an FDOC for a project may CEC grant final approval
to that project.
In addition to its indirect role in the CEC process,
SCAQMD directly administers other permitting schemes
applicable to the IEEC project at issue here. First, every piece
of equipment that may release air contaminants must obtain
a separate Permit to Construct under District Rule 201 and,
once the Permit to Construct is granted and the equipment is
evaluated for its compliance with that permit, a Permit to
Operate under District Rule 203. Large facilities that are pro-
jected to emit more than a certain amount of pollution and so
are subject to Title V of the CAA must also obtain a “facility-
wide Title V permit” in addition to the individual permits to
construct and permits to operate required for each piece of
equipment at the facility. Finally, large emitters of nitrogen
and sulfur oxides that qualify for the RECLAIM program dis-
cussed in footnote 3 receive a RECLAIM facility permit from
the air district pursuant to District Rule 2006. See Rule
2006(b)(3); Rule 3004(b).
IEEC first applied to CEC for “certification of a power
plant in Romoland, an unincorporated area of Riverside
County” on August 17, 2001. On September 16, 2001, IEEC
15432 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
submitted applications to the air district for permits to con-
struct associated with this project and on September 26 sub-
mitted its application for a Title V permit. On July 12, 2002,
SCAQMD issued its PDOC for the project to CEC, and on
February 28, 2003, the air district issued an FDOC. On
December 17, 2003, CEC published its decision to certify the
power plant, noting the Romoland School District’s concerns
about pollution at the nearby facility but concluding that all
potential environmental impacts on the school were “either
insignificant, or were mitigated to a less than significant
level.” The air district issued a Notice of Intent to grant
IEEC’s Title V permit in July of 2002 but never issued any
permits to construct associated with that facility design;
instead, in March of 2005, IEEC petitioned CEC to modify its
project to use larger, more energy-efficient turbines that
would increase the proposed plant’s generating capacity from
670 to 810 megawatts. CEC deemed this proposal to modify
to be a request for an amendment to IEEC’s CEC authoriza-
tion, and approved this amendment on June 22, 2005 after
holding a public hearing on the subject, concluding that “the
modifications would not create any new or unmitigated signif-
icant environmental impacts [and that the new turbines would
provide] superior fuel economy and environmental perfor-
mance.”5 The public was invited to raise objections to the new
facility configuration at the June 22 hearing, but no one
expressed opposition to the amendment through oral or writ-
ten comments either before or during that hearing. Plaintiffs-
Appellants were strikingly silent at that time.
Because the modifications to IEEC’s proposed project
required it to supply new emissions calculations and modeling
analysis to the air district, IEEC canceled its pending permit
applications and submitted twelve superseding applications in
early 2005, including an application for a revised Title V and
RECLAIM facility permit and eleven applications for permits
5
Because of the nature of the proposed amendment, the air district was
not required to provide CEC with a new PDOC and FDOC for the project.
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15433
to construct individual pieces of equipment. On June 2, 2005,
the air district published a new Notice of Intent to Issue Per-
mit in a Riverside newspaper and also mailed the notice to
more than 750 separate addresses of individuals who had
either expressed an interest in being notified of such activities
or who lived within a quarter-mile radius of the proposed
power plant location. See Rule 212(c)-(d); 3006(a).6 This
notice included a description of the project and its estimated
emissions, an explanation of the procedures for public com-
ment and for requesting a hearing on the proposed permit, and
contact information for a person at the air district that mem-
bers of the public could speak to about the plant. See Rule
212(g); 3006(b). One of the plaintiffs in this case, California
Unions for Responsible Energy (“CURE”), sent the air district
a letter in April of 2005 asking to be notified of all develop-
ments regarding the IEEC proposal, and so CURE was
included in the mailing of the Notice of Intent and was also
informed of other proposed SCAQMD actions on the project.7
California Health and Safety Code § 42302.1 affords “any
6
Pursuant to District Rule 212(d), the mailing of notice to individuals
within a quarter-mile radius of the facility site, as well as parents of chil-
dren attending the Romoland Elementary School, was conducted by IEEC
itself, with the relevant names and addresses provided to IEEC by the air
district.
7
CURE, as well as the Romoland School District, had also been
involved in the public comment proceedings before CEC prior to the
FDOC issuance and project certification in 2003. Specifically, both of
these plaintiffs petitioned CEC for, and were granted, formal intervenor
status in IEEC’s certification process, which gave them the right to submit
data requests to any other party (including IEEC), participate in CEC-
sponsored conferences and hearings, present and cross-examine witnesses
at hearings, and submit briefs. Neither CURE nor the Romoland School
District, nor any of the other plaintiffs that did not have intervenor status,
actively participated in any CEC hearings or conferences, and while
Romoland School District did submit comments, these concerned the
school district’s desire to receive funding from IEEC to facilitate reloca-
tion of Romoland Elementary School to a site farther from the proposed
power plant and did not raise any concerns about the project’s PM10 emis-
sion levels or offsets that became the basis of this litigation.
15434 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
aggrieved person” the right to petition for a hearing on the
permit before the air district’s hearing board within 30 days
of receiving the Notice of Intent to Issue Permit and again
within 30 days after a permit is issued; however, none of the
plaintiffs used this administrative remedy. EPA also received
a copy of the proposed permit and stated in a July 5, 2005 e-
mail that it would not object to the permit’s issuance. No one
petitioned EPA to reconsider its decision not to object. See 42
U.S.C. § 7661d(b)(1)-(2) (requiring the EPA to object to non-
compliant permit provisions and establishing administrative
and judicial review of citizen petitions for EPA objection to
state permit applications).
Accordingly, on August 5, 2005, SCAQMD issued IEEC a
document entitled “RECLAIM/Title V Facility Permit” which
contained sections (F and G) describing the RECLAIM rules
applicable to the facility, a section (K) listing administrative
conditions associated with Title V, and two sections (D and
H) enumerating “emission sources at [the] facility that have
been issued a Permit to Operate or a Permit to Construct
along with permit conditions for emission sources at [the]
facility.” The cover letter sent with the permit also assigned
application numbers to various pieces of equipment and
explained that those applications “associated with this Facility
Permit have been approved for Permits to Construct/
Temporary Permits to Operate . . . .” This cover letter further
stated that “the enclosed RECLAIM/Title V Facility Permit
. . . will serve as the official permit for your facility.”
C
On February 22, 2006,8 Plaintiffs sent both IEEC and
SCAQMD a “60-day notice of intent to sue” as required by
the citizen suit provision of the CAA. 42 U.S.C.
8
IEEC contends that when it received this notice from Plaintiffs, it was
already six months into construction and had committed $400 million to
the power plant project.
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15435
§ 7604(b)(1)(A). This letter stated that, based on the terms of
its air district-approved permit, the power plant was in viola-
tion of the CAA’s NSR provisions in two respects: (1) the
emission reduction credits IEEC had purchased to offset its
emissions pursuant to Rule 1303(b)(2) were obtained from the
district’s Priority Reserve, a bank of credits for which IEEC
was not eligible; and (2) the plant was projected to emit more
than the allowable amount of fine particulate matter or PM10
in violation of Rule 1303(b)(1). Plaintiffs filed a complaint in
federal district court for the Central District of California on
April 21, invoking the CAA’s citizen suit provision, 42
U.S.C. § 7604(a), as the basis for jurisdiction and asserting
the same two alleged NSR violations as distinct claims under
the CAA. In all, the complaint contained four causes of
action, two against IEEC for the allegedly invalid offsets and
excessive emissions levels, and two against SCAQMD for
granting IEEC a permit that allowed for those two violations.
The complaint sought declaratory and injunctive relief as well
as civil penalties from both defendants and litigation costs.
Within a month of filing suit, Plaintiffs moved for a prelim-
inary injunction to halt construction of the power plant until
IEEC’s permit was modified to comply with the applicable
CAA provisions. On June 12, 2006, IEEC moved to dismiss
the two causes of action against it for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). On August
14, 2006, after a brief hearing, District Judge Lew denied the
motion for a preliminary injunction, concluding that “the
injunction factors, that is, the likelihood of success on the
merits and irreparable harm and the balance of hardships,”
favored the defendants. In a written order entered on August
18, the district court also granted IEEC’s motion to dismiss
the two causes of action against it with prejudice and stated
that leave to amend would not be granted.
Although neither the oral ruling nor the written order of the
district court specified that the dismissal of Plaintiffs’ claims
against IEEC was based on a lack of subject matter jurisdic-
15436 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
tion, the order did state that the dismissal was “[based on] the
reasons set forth in IEEC’s motion to dismiss and the papers
submitted in support thereof . . . .” That motion and support-
ing documentation had contended, among other things, that
the district court lacked jurisdiction over Plaintiffs’ claims
because Plaintiffs were challenging a Title V permit and so
were limited to the mechanisms for judicial review provided
in that part of the CAA. When Plaintiffs’ claims against IEEC
were dismissed, SCAQMD had not yet filed any dispositive
motions. However, the air district did submit a “notice of
position” to the district court on August 11 stating that it
agreed with IEEC’s jurisdictional argument and would be
incorporating that argument into a summary judgment motion.
Responding to these developments, Plaintiffs moved on
October 10 for voluntary dismissal of their two remaining
claims against the air district under Federal Rule of Civil Pro-
cedure 41(a)(2), asserting in their motion that “[i]n granting
. . . IEEC’s motion to dismiss Plaintiffs’ Third and Fourth
Causes of Action without leave to amend . . . Judge Lew
made a jurisdictional decision that is determinative of Plain-
tiffs’ entire action.” Plaintiffs also pointed out that “the
remaining defendants in this action have stated their intention
to file a dispositive motion that asserts some of the same juris-
dictional arguments IEEC made in its motion [to dismiss]”
and concluded that “[b]ecause Judge Lew’s ruling is now the
‘law of the case’ that applies equally to the remaining defen-
dants, voluntary dismissal of the remaining claims for the pur-
poses of gaining final judgment and allowing appeal serves
judicial economy.” Finally, Plaintiffs stated that the air district
did not oppose the voluntary dismissal and thus that a hearing
on the Rule 41 motion was not necessary.
On October 12, District Judge Guilford, to whom the Plain-
tiffs’ remaining claims against the air district had been trans-
ferred on September 20, granted the voluntary dismissal
motion. The order signed by Judge Guilford and entered on
the docket read, in its entirety, as follows:
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15437
On August 18, 2006, Judge Lew entered an order
dismissing Plaintiffs’ Third and Fourth Causes of
Action for lack of subject matter jurisdiction. The
Court hereby grants Plaintiffs’ unopposed applica-
tion for voluntary dismissal. IT IS SO ORDERED.
On November 7, Plaintiffs filed a Notice of Appeal
(“NOA”) that listed both IEEC and SCAQMD as defendants
and included both parties on the service list. The NOA listed
the judgment appealed from as the October 12 “Court
approved voluntary dismissal” and stated that Plaintiffs were
also appealing “interlocutory orders that gave rise to the judg-
ment, including, but not limited to, order granting motion to
dismiss without leave to amend and order denying motion for
preliminary injunction.”
In January of 2007, a telephone conversation took place
between counsel for Plaintiffs and counsel for the air district
to which both attorneys have stipulated in signed declarations.
The contact was initiated by SCAQMD’s counsel, Bradley
Hogin, who raised concerns about the fact that the dismissal
of Plaintiffs’ claims against the air district was without preju-
dice; Hogin asked if Plaintiffs would accommodate the air
district’s concerns by dismissing their appeal, altering the dis-
missal in the district court to be with prejudice, and then filing
a new appeal. Plaintiffs’ counsel, Suma Peesapati, declined,
and Hogin stated that the air district would file a motion to
dismiss the appeal as not relating to a final judgment. That
motion was filed on April 12, 2007, and was joined by IEEC,
who had not known of the voluntary dismissal of Plaintiffs’
claims against the air district before being served with the
NOA. On May 31, 2007, Appellate Commissioner Peter Shaw
denied the defendants’ motion to dismiss the appeal, without
prejudice to the issue of appellate jurisdiction being consid-
ered by the merits panel.
II
[1] Except in limited circumstances not currently at issue,
parties may only appeal from, and appellate courts only have
15438 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
jurisdiction over, “final decisions of the district courts.” See
28 U.S.C. § 1291. In this context, a “final decision” is one
that “ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment . . . .” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (internal quota-
tion marks omitted). A district court order is therefore not
appealable unless it disposes of all claims as to all parties or
unless judgment is entered in compliance with Federal Rule
of Civil Procedure 54(b). See Chacon v. Babcock, 640 F.2d
221 (9th Cir. 1981). Related to this “one final judgment rule”
is what might be called the “single appeal rule,” which
requires that “a party . . . raise all claims of error in a single
appeal following final judgment on the merits.” Flannigan v.
United States, 465 U.S. 259, 263 (1984) (internal quotation
marks omitted). We have previously cautioned that “[t]reating
an order that has the potential of leading to multiple appeals
as final would be inconsistent with Congress’s policy
[embodied in 28 U.S.C. § 1291] disfavoring piecemeal appel-
late review.” Cheng v. Comm’r, 878 F.2d 306, 310 (9th Cir.
1989). Piecemeal appellate review is not only inimical to the
will of Congress but also “undermines the efficient use of
judicial resources” by exposing appellate panels to “the costs
of repeated familiarization with the [same] case.” See id.(internal quotation marks omitted).
SCAQMD and IEEC both argue that the order denying
Plaintiffs’ motion for a preliminary injunction and dismissing
their claims against IEEC with prejudice and the order grant-
ing Plaintiffs’ motion for voluntary dismissal of their claims
against SCAQMD, taken together, are not final within the
meaning of 28 U.S.C. § 1291 and are thus not appealable.
Federal Rule of Civil Procedure 41 allows plaintiffs voluntar-
ily to dismiss some or all of their claims against some or all
defendants. Concha v. London, 62 F.3d 1493, 1506 (9th Cir.
1995). Voluntary dismissals that are effected by court order,
as was done in this case, are governed by Federal Rule of
Civil Procedure 41(a)(2). Such court-ordered voluntary dis-
missals are deemed to be without prejudice “[u]nless the order
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15439
states otherwise . . . .” Fed. R. Civ. P. 41(a)(2). Here, the
order did not state that the claims against SCAQMD were dis-
missed with prejudice.
For many years, the general rule in this circuit had been
that voluntary dismissals without prejudice do not create
appealable, final judgments. Concha, 62 F.3d at 1507. The
rationale was that “[a] voluntary dismissal without prejudice
is not adverse to the plaintiff’s interests,” as he or she is “free
to seek adjudication of the same issue at another time in the
same or another forum.” Id. By contrast, we reasoned that
allowing appeal of voluntary dismissals with prejudice “is not
likely to undermine our normal appellate practice by encour-
aging a flow of appeals that are quasi-interlocutory in nature”
because if the appellate court rejects the plaintiff’s claim, “the
dismissal of his action with prejudice stands” and so he “is
precluded from bringing another action for the same cause
. . . .” Id. at 1508.
[2] The pertinent legal landscape was altered slightly in
2002 with our decision in James v. Price Stern Sloan, Inc.,
283 F.3d 1064 (9th Cir. 2002). The James court considered a
situation in which, following the district court’s grant of par-
tial summary judgment dismissing most of a plaintiff’s con-
tract claims, the plaintiff sought voluntary dismissal of her
remaining claims, relating to separate contracts with the same
defendant, so that she could pursue an appeal of the partial
summary judgment. 283 F.3d at 1065. The district court
granted her motion to dismiss without prejudice, but we none-
theless determined that the judgment was final and appeal-
able, holding that “when a party that has suffered an adverse
partial judgment subsequently dismisses remaining claims
without prejudice with the approval of the district court, and
the record reveals no evidence of intent to manipulate our
appellate jurisdiction, the judgment entered after the district
court grants the motion to dismiss is final and appealable
under 28 U.S.C. § 1291.” Id. at 1070.
15440 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
[3] Here, as in James, the record does not reflect intentional
manipulation. The plaintiff in James explained in her motion
for voluntary dismissal that “[a] federal court trial on the few
remaining [contracts] would not be an efficient use of time
and resources” and that “once those claims are dismissed, a
final judgment can be entered.” Id. at 1068 (first alteration in
original). We described those “reasons for seeking a dismissal
of . . . remaining claims” as “entirely legitimate,” id., and
those are essentially the same reasons offered by Plaintiffs in
their Rule 41 motion:
Voluntary [d]ismissal [i]s [i]n the [i]nterest of
[j]udicial [e]conomy [because] [d]ismissal [w]ould
[o]bviate the [n]eed for the SCAQMD defendants’
[d]uplicative [d]ispositive [m]otion . . . based on the
same Title V exhaustion argument that IEEC made
in its motion to dismiss. . . . Under the ‘law of the
case’ doctrine, the SCAQMD Defendants’ disposi-
tive motion would dispose of both of Plaintiffs’
remaining causes of action for lack of subject matter
jurisdiction . . . thus ending the case. Recognizing
the high likelihood of this outcome, Plaintiffs seek
this voluntary dismissal for the purpose of gaining
final judgment in this case, thereby allowing an
appeal of this determinative jurisdictional issue.
As Plaintiffs clarified at oral argument, they sought dismissal
of their claims against SCAQMD because they believed those
claims to be resolved by the district court’s rulings on Plain-
tiffs’ claims against IEEC and their motion for preliminary
injunction, and they have disclaimed all intention to revive
their claims against SCAQMD independently of their claims
against IEEC. Moreover, the air district, like the defendant in
James, “had an opportunity to argue that [Plaintiffs’ stated
reasons for seeking voluntary dismissal] were a subterfuge,
but failed to do so.” 283 F.3d at 1068. SCAQMD did not
oppose Plaintiffs’ application for voluntary dismissal and did
not raise any concerns about finality of the judgment until
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15441
January of 2007, three months after the dismissal order was
entered and two months after Plaintiffs filed their Notice of
Appeal.
Despite these similarities to James, our case is distinguish-
able in several important respects. First, James involved mul-
tiple claims against a single defendant, some of which were
voluntarily dismissed and others of which (those subject to
the partial summary judgment) were appealed following the
voluntary dismissal. Id. at 1065. By contrast, here Plaintiffs
seek to appeal two otherwise interlocutory orders—the order
dismissing their claims against IEEC but also the order deny-
ing their motion for a preliminary injunction, a motion which
had sought relief from both IEEC and SCAQMD. Specifi-
cally, Plaintiffs’ counsel advised at oral argument that the pre-
liminary injunction motion sought rescission from SCAQMD
of the permit it had issued to IEEC. For this reason, Plaintiffs’
Notice of Appeal listed both IEEC and the air district as
defendants, and the air district submitted a brief and partici-
pated in oral argument on appeal even though all of Plaintiffs’
claims against it had been dismissed. This involvement by a
defendant in an appeal of issues that it never litigated before
the district court goes well beyond the straightforward two-
party scenario contemplated in James, and the legal uncer-
tainty for such a defendant is compounded where it faces the
possibility that the original claims against it may be revived,
depending on the outcome of the appeal, because they were
dismissed without prejudice.
Second, the James panel found it significant that the volun-
tarily dismissed claims in that case related to different con-
tracts for different pieces of artwork than the claims being
appealed, making it likely that final judgment could also have
been obtained through severance of the claims by the district
court under Federal Rule of Civil Procedure 54(b). See id. at
1068 (“There is no evidence . . . that James attempted to cir-
cumvent Rule 54(b), or that the final judgment issued by the
district court undermines the Rule 54(b) procedures.”).
15442 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
Although a Rule 54(b) severance was never sought in this
case, the chances of one being granted are more remote than
they were in James, given that the two sets of claims here
involved the same alleged CAA violations at the same power
plant authorized by the same permit. The closely intertwined
nature of these claims dictates that as a practical matter, any
further proceedings in this action or a related future action
against either of these defendants, whether in our court or the
district court, would require close monitoring and likely legal
involvement by all three parties to this appeal. The concerns
we raised in Cheng about piecemeal appellate review requir-
ing multiple panels to familiarize themselves with the same
case, see 878 F.2d at 310, thus apply with greater force here
than in James because of the parallels between Plaintiffs’
claims against IEEC and the air district.
[4] The year after James was decided, we clarified that
James had carved out “an exception to the general rule that
‘in the absence of [a Rule 54] determination . . . any order or
other form of decision, however designated, which adjudi-
cates fewer than all the claims . . . shall not terminate the
action as to any of the claims[.]’ ” Am. States Ins. Co. v.
Dastar Corp., 318 F.3d 881, 888-89 (9th Cir. 2003) (quoting
Fed. R. Civ. P. 54(b)) (first, third and fourth alterations in
original). We conclude that this case presents such anomalous
procedural issues that attempting to fit it within or outside the
exception created by James—by deciding whether and under
what circumstances the principle established in James applies
to cases involving multiple defendants, for example—is nei-
ther necessary nor advisable. Instead, we adopt the “pragmatic
evaluation of finality” counseled by our precedents, see id. at
890, and conclude that for purposes of this appeal, we will
treat the dismissal of Plaintiffs’ claims against SCAQMD as
being with prejudice. We followed this approach in Concha
v. London, where despite the parties’ stipulation under Federal
Rule of Civil Procedure 41(a)(1) that the dismissal of remain-
ing claims was without prejudice, we determined that “the
label attached to the dismissal is not dispositive” and treated
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15443
the dismissal as one with prejudice for purposes of creating
appellate jurisdiction because this designation was consistent
with the “effect that the Conchas, and indeed all the parties,
intended the dismissal to have.” 62 F.3d at 1508-09.
The Concha decision predated James and thus belonged to
an era when only dismissals with prejudice gave rise to
appealable, final judgments. However, many of the same con-
siderations of intent that motivated us to deem the dismissal
in Concha with prejudice lead to the same conclusion here.
Whereas the parties’ stipulation in Concha explicitly stated
that the dismissal of remaining claims was without prejudice,
here the order dismissing Plaintiffs’ claims against the air dis-
trict says nothing about the dismissal’s effect, and the asser-
tion that it was without prejudice derives solely from the
presumption in Federal Rule of Civil Procedure 41(a)(2) that
“[u]nless the order states otherwise, a dismissal under this
paragraph . . . is without prejudice.” However, looking
beyond the ambiguous text of the order to Plaintiffs’ other
statements suggests that their intent was to resolve their
claims as quickly as possible rather than to leave open multi-
ple avenues for continued litigation. Plaintiffs included a sen-
tence in their proposed dismissal order, which the district
court struck before adopting the order, applying the “law of
the case” doctrine to their remaining claims. Because their
claims against IEEC had been dismissed with prejudice,
applying this doctrine to their claims against SCAQMD
would have resulted in a dismissal with prejudice of those
claims as well. Indeed, at oral argument Plaintiffs’ counsel
assured us that her clients had “no intention” of relitigating
their claims against the air district but had instead sought an
immediate appeal in the interest of judicial economy and
because their ultimate interests—ensuring that IEEC’s pro-
posed power plant in Romoland does not emit unsafe levels
of pollution in violation of the CAA—were best served by an
expeditious resolution of all claims.
15444 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
[5] Accordingly, for purposes of this appeal,9 and consistent
with the record and Plaintiffs’ representation at oral argument,
we determine that Plaintiffs intended to dismiss their claims
against the air district with prejudice consistent with the pre-
vious dismissal with prejudice of their claims against IEEC,
to which Plaintiffs believed the “law of the case” doctrine
applied. In light of this unambiguous evidence of intent and
the ambiguous language of the dismissal order, we will con-
sider the October 12, 2006 dismissal of Plaintiffs’ claims
against the air district to be with prejudice. Presented thus
with an unquestionably final judgment, we have jurisdiction
to hear this appeal under 28 U.S.C. § 1291 and may proceed
to consider the jurisdiction of the district court.
III
The jurisdictional argument first raised in IEEC’s motion to
dismiss, and reiterated in both defendants’ briefs and at oral
argument, has been misconstrued by Plaintiffs throughout this
appeal as a claim that they “failed to exhaust administrative
remedies” or a contention that Title V of the CAA “revoked”
Title I, the part of the CAA containing the NSR and other pre-
construction requirements. Instead, what the defendants are
asserting is that because the air district has elected to incorpo-
rate all federal, state and local regulations regarding air pollu-
tion, including the requirements of NSR where applicable,
into a consolidated permitting process for all facilities subject
to Title V, and because Plaintiffs are not challenging IEEC’s
compliance with the terms of its permit but are rather assert-
ing that the permit itself violates District Rule 1303, the only
forums in which Plaintiffs could have brought that challenge
9
This determination relates only to our appellate jurisdiction by making
it unnecessary for us to rely on or expand James to establish finality for
purposes of 28 U.S.C. § 1291. Like the panel in Concha before us, we
decline to reach the question of what effect this determination would have
in the district court, given that our disposition of the remaining jurisdic-
tional question in this case will prevent further consideration of this action
by a federal district court in any event.
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15445
to IEEC’s permit are those authorized by Title V of the CAA
and the SCAQMD rules implementing Title V within the air
district. Although Plaintiffs argue that they “did not invoke”
the “additional enforcement scheme” added by Title V and
thus that this title is “wholly irrelevant” to their action, the
defendants suggest that when the preconstruction require-
ments of NSR are incorporated or “merged” into a state’s
Title V permitting scheme, the compliance of permits granted
under such a scheme with NSR and other Title I requirements
may only be challenged through Title V-related judicial
review procedures, whether a plaintiff specifically “invokes”
Title V or not. Put another way, the defendants are not argu-
ing that Plaintiffs failed to take certain administrative steps
such as petitioning the EPA to object to IEEC’s permit and
that because of this failure, their claims are not ripe for judi-
cial review in the district court; rather Defendants are con-
tending that the type of challenge these plaintiffs are bringing
—an attack on a duly issued permit as inconsistent with NSR-
related components of a SIP—can never be brought in federal
district court under 42 U.S.C. § 7604 when that permit was
issued pursuant to Title V. To evaluate this jurisdictional chal-
lenge, we must answer two distinct questions: (1) as a factual
matter, has the air district merged its preconstruction require-
ments, including those for new sources of nonattainment pol-
lutants in nonattainment areas, into a comprehensive
permitting scheme under the umbrella of Title V; and (2) if
so, is it a legal consequence of such an arrangement that the
citizen suit provision of the CAA, 42 U.S.C. § 7604, may not
be used to challenge the validity of such a consolidated permit
under applicable SIP requirements?
A
[6] In drafting Title V, Congress intended to impose the
requirement to obtain an operating permit on a wide range of
pollution sources, including those sources that were already
required to gain a permit before beginning construction pursu-
ant to 42 U.S.C. § 7503, the CAA’s NSR provision for new
15446 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
or modified emission sources in nonattainment areas. This
intended scope of the Title V program is made explicit in 42
U.S.C. § 7661a(a), which requires “any . . . source required to
have a permit under Part . . . D of Title I,” the NSR program,
“to operate . . . in compliance with a permit issued by a per-
mitting authority under this title.” The substantive require-
ments of an operating permit under Title V also encompass
the requirements imposed by NSR and other Title I programs,
for Congress specified that “[e]ach permit issued under this
title shall include enforceable emission limitations and stan-
dards . . . and such other conditions as are necessary to assure
compliance with applicable requirements of this Act, includ-
ing the requirements of the applicable [state] implementation
plan,” which, within the air district, include the NSR require-
ments of District Rule 1303. See 42 U.S.C. § 7661c(a). What
sets the preconstruction requirements of NSR apart from Title
V, by definition, is their timing, and “[n]othing in [Title V]
shall be construed to alter the applicable requirements of this
Act that a permit be obtained before construction or modifica-
tion.” 42 U.S.C. § 7661a(a) (emphasis added).
[7] To reconcile Title V’s requirements for a permit during
operation with Title I, Part D’s requirement that a permit be
obtained before construction or modification, Congress pro-
vided that state permitting programs under Title V “shall
establish reasonable procedures to prioritize . . . approval or
disapproval [of permit applications] in the case of applications
for construction or modification under the applicable require-
ments of this Act.” 42 U.S.C. § 7661b(c). See also 40 C.F.R.
§ 70.7(a)(3) (similar provision in EPA regulations setting out
minimum standard for state Title V permitting programs).
These regulations give other indications that for purposes of
program administration, Title V permitting requirements may
overlap with aspects of NSR and other pre-existing programs.
For example, one regulatory provision establishes a deadline
by which “sources required to . . . have a permit under the
preconstruction review program approved into the applicable
[state] implementation plan under part . . . D of the Act shall
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15447
file a complete application to obtain the [Title V] permit,”
except “[w]here an existing [Title V] permit would prohibit
such construction or change in operation, [in which case] the
source must obtain a permit revision before commencing
operation.” 40 C.F.R. § 70.5(a)(1)(ii). Another provision
defines the term “administrative permit amendment” to
include, among other things, “a permit revision that . . .
[i]ncorporates into the [Title V] permit the requirements from
preconstruction review permits authorized under an EPA-
approved program” such as a SIP. 40 C.F.R. § 70.7(d)(1)(v).
[8] Yet by far the strongest evidence of federal intent to
consolidate preconstruction and Title V permitting require-
ments comes from the Federal Register notice in which EPA
announced the final adoption of its implementing regulations
for Title V. In a section in that notice entitled “Permit/SIP
Relationship,” the agency explained:
The SIP remains the basis for demonstrating and
ensuring attainment and maintenance of the national
ambient air quality standards (NAAQS). The permit
program collects and implements the requirements
contained in the SIP as applicable to the particular
permittee. Since permits must incorporate emission
limitations and other requirements of the SIP, all SIP
provisions applicable to a particular source will be
defined and collected into a single document.
57 Fed. Reg. at 32258. Another section under the heading
“New Source Review/Title V Relationship” is instructive. It
states:
Under today’s final rule State and local permitting
authorities have the option, but not a mandate, to
integrate requirements determined during precon-
struction review with those required under title V.
Such integration would be consistent with the previ-
ously stated implementation goals of combining pro-
15448 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
grams and building on existing State programs
which typically have already accomplished such
integration at the State level. As discussed above, if
NSR is integrated with the procedural and
compliance-related requirements contained in [40
C.F.R.] §§ 70.6, 70.7, and 70.8 (including opportu-
nity for EPA and affected State review), an existing
title V permit can be administratively revised to
reflect the results of the integrated NSR process.
Id. at 32259.
[9] Analysis of the air district’s permitting rules leaves little
doubt that it has taken advantage of this “option . . . to inte-
grate . . . preconstruction review with . . . Title V” require-
ments. One district rule, Rule 3003(h), creates some
confusion of terminology when it states that “[t]he submittal
of a complete Title V permit application . . . shall not relieve
any person of the requirements for a pre-construction permit
under Title I of the federal Clean Air Act, District Regulation
XIII — New Source Review, or District Rule 2005 — New
Source Review for RECLAIM.” Despite the use of the term
“pre-construction permit” in this rule, the cited district NSR
provisions nowhere refer to a “pre-construction permit” but
speak instead of “permits to construct,” which are not to be
granted unless the permit applicant complies with emission
limitation and offset requirements. See, e.g., District Rule
1303(a)(1), 1303(b). In turn, the rules that make up District
Regulation II governing permits to construct contain repeated
references to Title V of the CAA, such as the statement in a
list of deadlines for approval or denial of construction permits
that “permit revisions for Title V facilities shall follow the
timetables for permit action” set forth in Regulation XXX,
which contains rules implementing the district’s Title V pro-
gram. Rule 210(d)(3). Other cross-references to Regulation
XXX occur in Rule 204 regarding written conditions of con-
struction permits and in Rule 212, which contains the require-
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15449
ments for public notice and comment regarding permits to
construct. See Rule 212(c)(1), 212(c)(3).
Despite its emphasis on operating permits, Title V is simi-
larly replete with references to both NSR and permits to con-
struct. In a parallel to the federal regulations discussed above,
District Rule 3000(b)(1)(D) defines the term “administrative
permit revision” to include “any Title V permit revision to . . .
issue a final permit to operate for any equipment previously
issued a Title V permit to construct . . . .” The Federal Regis-
ter notice in which EPA granted interim approval to
SCAQMD’s Title V program explains the significance of this
provision:
Enhanced New Source Review. South Coast’s title V
permit program provides for enhanced preconstruc-
tion review, an optional process that allows sources
to satisfy both new source review and title V permit
modification requirements at the same time. Any
modification processed pursuant to South Coast’s
enhanced preconstruction review procedures may be
incorporated into the title V permit as an administra-
tive permit amendment. These enhanced procedures
obviate the need to undergo two applications, public
notice, and permit issuance/revision processes for
the same change. (See [Rule] 3000(b)(1)(D).)
61 Fed. Reg. 45530, 45532 (August 29, 1996). Another dis-
trict rule is explicit about the degree to which the air district
has merged its Title V permitting scheme with the source-
specific permits to construct discussed in Rule 1303: “A writ-
ten authorization to construct, issued as part of a Title V facil-
ity permit, shall be deemed a permit to construct for the
purposes of all other District rules and regulations.” Rule
3007(a)(2).
[10] The very permitting process at issue in this case dem-
onstrates the extent of the integration. Although IEEC did
15450 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
apply for a separate Permit to Construct for each piece of
emitting equipment at its facility as well as applying for a
Title V and RECLAIM facility permit, only one permit was
issued to IEEC by SCAQMD: a “RECLAIM/Title V Facility
Permit” which included a list of “emission sources at your
facility that have been issued a Permit to Operate or a Permit
to Construct . . . .” Not only were all of IEEC’s applicable
permits contained in a single document, but that permit was
also subjected to a single public review and comment process
combining the notice and comment requirements of Rule 212
concerning permits to construct and Rule 3006 regarding Title
V permits. Moreover, the RECLAIM/Title V Facility Permit,
including sections D and H with their lists of pieces of equip-
ment granted Permits to Construct, was submitted to EPA for
its review pursuant to Rule 3003(j). We therefore conclude
that while all substantive requirements of preconstruction
review remain in place in the air district, as a procedural mat-
ter the district’s various permit application processes for
potential emitters subject to Title V have been consolidated
into a single comprehensive system, under the auspices of
Title V, and IEEC’s RECLAIM/Title V Facility Permit for its
proposed Romoland power plant was issued pursuant to this
consolidated system.
B
[11] Title V permits are by no means wholly insulated from
the CAA’s citizen suit provision. To the contrary, when the
CAA was amended in 1990 to add Title V, the citizen suit
provision was also amended to add to the definition of “emis-
sion standard or limitation,” an alleged violation of which
authorizes any person to bring an enforcement action, “any
other standard, limitation, or schedule established under any
permit issued pursuant to title V, . . . any permit term or con-
dition, and any requirement to obtain a permit as a condition
of operations.” 42 U.S.C. § 7604(f)(4). In other words, if
IEEC had violated a term or condition of the permit the air
district issued to it, or if it had sought to begin building and
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15451
operating the power plant in Romoland without obtaining a
permit under SCAQMD’s merged Title V/construction permit
system, either of those alleged violations would have been
grounds for a citizen suit in district court under 42 U.S.C.
§ 7604. However, Plaintiffs’ challenge fits into neither of
these categories. Instead, Plaintiffs are charging that IEEC is
complying with the terms of its permit but that those terms are
themselves a violation of the CAA, specifically, the federally
enforceable SIP provisions regarding NSR found in District
Rule 1303. Because these challenged terms are part of a per-
mit issued under Title V, we must consider Title V’s adminis-
trative and judicial review provisions for challenging a
permit. Those provisions require persons objecting to the issu-
ance of a Title V permit to “petition the Administrator,” and
provide for judicial review regarding such petitions in the
courts of appeal under 42 U.S.C. § 7607, not through citizen
suits in the district courts via § 7604. 42 U.S.C.
§ 7661d(b)(2). The text of § 7607, which allows for direct
review of regionally applicable EPA action in the geographi-
cally appropriate circuit court of appeals, also makes clear
that this form of judicial review is exclusive, stating that
“[a]ction of the Administrator with respect to which review
could have been obtained under [this section] shall not be
subject to judicial review in civil or criminal proceedings for
enforcement.” 42 U.S.C. § 7607(b)(1)-(2) (emphasis added).
[12] This “use it or lose it” provision of 42 U.S.C.
§ 7607(b)(2) does not bar enforcement proceedings only
where an individual has taken advantage of the opportunity to
petition the EPA Administrator and then appeals the denial of
such a petition to the applicable appellate court; instead, judi-
cial review through civil or criminal enforcement proceedings
is unavailable whenever an individual “could have . . .
obtained” such review. Thus, by creating in 42 U.S.C.
§ 7661d(b)(2) an avenue of judicial review that passes
through 42 U.S.C. § 7607, Congress effectively foreclosed the
alternative avenue of citizen suit enforcement through 42
U.S.C. § 7604.
15452 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
Our interpretation of § 7607 as it relates to § 7661d is
strengthened by the implications of Plaintiffs’ proposed alter-
native. If Plaintiffs were able to bring this action in federal
district court under the citizen suit provision and that action
was appealed to our court, and if the same plaintiffs or
another party who had petitioned EPA pursuant to 42 U.S.C.
§ 7661d(b)(2) and whose petition was denied also appealed
that denial to our court, then two different panels of this court
could be simultaneously confronted with similar if not identi-
cal challenges to the same permit, perhaps even brought by
the same party. Such a system would be entirely unworkable
and underscores why Plaintiffs are incorrect when they con-
tend that 42 U.S.C. § 7661d created “an additional” and not
a superseding enforcement scheme for challenges to the valid-
ity under the CAA of Title V permits.
The two cases cited by Plaintiffs to support their argument
that allegedly invalid permits may be challenged directly
through the CAA citizen suit provision, Grand Canyon Trust
v. Tucson Electric Power Co. and Communities for a Better
Environment v. Cenco Refining Co., are inapposite. Grand
Canyon Trust involved a challenge under 42 U.S.C. § 7604 to
a permit that the plaintiffs contended had lapsed when the
defendant did not begin construction by a certain date, in vio-
lation of a federal regulation that provided for the “automatic
cancellation of already-issued construction permits” if con-
struction did not commence by the deadline. 391 F.3d 979,
984-85 (9th Cir. 2004). This regulation thus imposed an
implicit condition on the defendant’s permit with which the
Grand Canyon plaintiffs alleged the defendants in that case
did not comply; by contrast, here Plaintiffs acknowledge that
IEEC is compliant with all applicable terms of its permit but
argue that those terms violate the CAA.
In Cenco, one of the plaintiffs in this action, Communities
for a Better Environment (“CBE”), challenged, under the citi-
zen suit provision, SCAQMD’s decision to transfer a previ-
ously expired Permit to Operate an oil refinery to a new
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15453
permittee who proposed to modernize the formerly non-
operational refinery. 180 F. Supp. 2d 1062, 1069-70, 1072
(C.D. Cal. 2001). CBE alleged various SIP violations includ-
ing the failure to apply NSR requirements before allowing
construction and the reactivation and transfer of the previ-
ously expired permit, which CBE contended was a violation
of District Rule 209 that operating permits are nontransfer-
able. Id. at 1072. The permitting decisions challenged in
Cenco did not involve Title V, and when the defendant raised
the issue of 42 U.S.C. § 7661d supplanting 42 U.S.C. § 7604as a mechanism for judicial review, the Cenco court
responded:
[J]ust because a federal administrative remedy is
available for objecting to the issuance of a subchap-
ter V permit does not mean that a legal remedy under
§ 7604 is unavailable for a defendant’s failure to
comply with [non-Title V-related] SIP permitting
requirements. Although Cenco may be required to
eventually acquire subchapter V permits, the mere
fact that plaintiffs could challenge such permits
under § 7661d at that time does not preclude plain-
tiffs from attacking other permits now under the
broad language of subsection (f)(4) [of § 7604];
indeed, the Clean Air Act nowhere states that plain-
tiffs must wait for the issuance of subchapter V per-
mits before they can sue on existing violations of the
SIP.
Id. at 1081 n.6.
[13] This language in Cenco, coming from a case involving
the same air district and many of the same district rules at
issue here, aptly illustrates that there are limits to our holding
today. We do not opine upon the general contours or scope of
the citizen suit provision of 42 U.S.C. 7604. We hold only
that where a state or local air pollution control district has
integrated the preconstruction requirements of Title I with the
15454 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
permitting requirements of Title V and a permit is issued
under that integrated system, a claim that the terms of that
permit are inconsistent with other requirements of the Clean
Air Act may only be brought in accordance with the judicial
review procedures authorized by Title V of that Act, 42
U.S.C. § 7661-7661f, and may not be brought in federal dis-
trict court under the Act’s citizen suit provision, 42 U.S.C.
§ 7604. Because Plaintiffs’ action was brought in an inappro-
priate forum under an inapplicable CAA provision in an
untimely avenue of protest, the district court was without
jurisdiction to hear it.
IV
For the foregoing reasons, we conclude that we have juris-
diction over this appeal, and we affirm the district court’s dis-
missal with prejudice of Plaintiffs’ claims against IEEC. We
grant IEEC’s request for judicial notice of materials relevant
to the dispositive jurisdictional question in this case. Because
of our conclusion on that jurisdictional question, we decline
to reach the merits of Plaintiffs’ claims against IEEC or their
motion for a preliminary injunction. We further hold that the
district court should not entertain any further proceedings in
this case or in a future action seeking to revive Plaintiffs’
claims against the air district pursuant to the October 12, 2006
dismissal of those claims without prejudice, because that
court lacks subject matter jurisdiction over such claims under
28 U.S.C. § 1331.
AFFIRMED.
WALLACE, Circuit Judge, concurring in the result:
I agree that this appeal should be dismissed, but for a dif-
ferent reason. Our precedents dictate that the plaintiffs’ volun-
tary dismissal pursuant to Federal Rule of Civil Procedure
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15455
41(a)(2) cannot constitute an appealable final judgment
because the dismissal was without prejudice. The majority,
however, holds that the dismissal order can in fact constitute
a final judgment for purposes of appeal under a “pragmatic
evaluation of finality.” Although this court has sanctioned a
pragmatic approach to determining finality in certain limited
circumstances, the majority’s ruling impermissibly expands
this doctrine beyond its narrow confines. In so doing, the
majority adds uncertainty to the final judgment rule of appel-
late jurisdiction, and undermines important values of judicial
economy. In my view, the better course is to follow our
clearly established rules of federal jurisdiction, and dismiss
this appeal for lack of appellate jurisdiction. Accordingly, I
would not reach the issue of the district court’s subject matter
jurisdiction as discussed in Part III of the majority opinion.
I.
Except in limited circumstances not relevant here, the
courts of appeals have jurisdiction to review only “final deci-
sions of the district courts.” 28 U.S.C. § 1291 (2008). A “final
decision” under section 1291 is “a decision by the District
Court that ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” Coopers & Lyb-
rand v. Livesay, 437 U.S. 463, 467 (1978) (internal quotation
marks, citation and footnote omitted). The final judgment rule
is essential to the proper functioning of the federal courts, as
it promotes judicial efficiency, prevents multiplicity of litiga-
tion, and minimizes delay “by forbidding piecemeal disposi-
tion on appeal of what for practical purposes is a single
controversy.” Cobbledick v. United States, 309 U.S. 323, 325
(1940).
In Concha v. London, we held that a plaintiff’s “voluntary
dismissal without prejudice is ordinarily not a final judgment
from which the plaintiff may appeal.” 62 F.3d 1493,1507 (9th
Cir. 1995) (emphasis in original), citing Coursen v. A.H. Rob-
ins Co., Inc., 764 F.2d 1329, 1342, corrected, 773 F.2d 104915456 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
(9th Cir. 1985). We reasoned that, “[t]he policy against piece-
meal appellate litigation is [ ] at its height in such cases”
where a party appeals a voluntary dismissal without prejudice
because if that party loses on appeal, he “is in no way pre-
cluded from proceeding with the litigation following the
adverse decision.” Id. at 1508 n.8.
Here, the district court approved the plaintiffs’ unopposed
Rule 41(a)(2) motion for voluntary dismissal of their claims
against the air district. The parties agree that because this
order did not specify whether the dismissal was with or with-
out prejudice, the dismissal is deemed to be without prejudice
pursuant to Rule 41(a)(2). Therefore, under Concha, the
plaintiffs’ voluntary dismissal cannot constitute a final judg-
ment for purposes of exercising appellate jurisdiction.
The plaintiffs argue that the voluntary dismissal nonethe-
less falls within the narrow exception to Concha articulated in
James v. Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir.
2002). In that case, we permitted the plaintiff to appeal an
adverse partial summary judgment order after she obtained a
voluntary dismissal without prejudice of her remaining
claims. Id. at 1068-70. We held that the voluntary dismissal
without prejudice created sufficient finality for the purposes
of appeal because it was made “with the approval of the dis-
trict court, and the record reveals no evidence of intent to
manipulate our appellate jurisdiction.” Id. at 1070.
The James exception is not applicable here. As the majority
correctly concludes, our case “is distinguishable [from James]
in several important respects,” including the fact that the
plaintiffs seek to appeal issues never litigated before the dis-
trict court, and the fact that there is a greater threat of piece-
meal appellate review in this case given the “closely
intertwined nature” of the claims dismissed with prejudice
and those dismissed without prejudice. (Maj. Op. 15441-43.)
In addition, contrary to the majority’s conclusion, the
record reveals at least some evidence that the plaintiffs’ vol-
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15457
untary dismissal without prejudice was done with an intent to
manipulate our appellate jurisdiction. In particular, when
counsel for the air district notified plaintiffs’ counsel about its
concerns that the “without prejudice” dismissal could render
the decision non-final, plaintiffs’ counsel adamantly refused
to make the dismissal “with prejudice.” Although this is not
direct evidence of an intent to manipulate the appellate pro-
cess, the James exception does not require a lack of substan-
tial evidence or even significant evidence. So long as there is
any evidence of an intent to manipulate, the exception does
not apply. James, 283 F.3d at 1068-69 (finding “no evidence”
that the plaintiff deliberately attempted to manipulate the
court’s appellate jurisdiction).
The default jurisdictional rule in Concha therefore applies
to this case. Under this well-established precedent, voluntary
dismissals without prejudice, like the dismissal at issue here,
are not appealable final judgments, and this court lacks juris-
diction to review such judgments on appeal.
II.
The majority acknowledges that Concha precludes volun-
tary dismissals without prejudice from being appealable final
judgments. (Majority Op. 15439.) The majority also concedes
that the James exception does not apply to the facts of this
case. (Majority Op. 15442.) Nonetheless, the majority holds
that appellate jurisdiction exists here because the plaintiffs’
dismissal without prejudice can be construed as being one
with prejudice under a “pragmatic evaluation of finality.”
(Maj. Op. 15442.) Unfortunately, this ruling cannot be
squared with our precedent.
In construing the plaintiffs’ dismissal as one with prejudice,
the majority principally relies on the fact-specific inquiry
undertaken in Concha. (Maj. Op. 15443-45.) In that case,
although we held that voluntary dismissals without prejudice
ordinarily do not constitute appealable final judgments, we
15458 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
ultimately concluded that “[i]n this unusual case,” the plain-
tiffs’ voluntary dismissal without prejudice would be treated
as one with prejudice for the purposes of appeal. Concha, 62
F.3d at 1508-09. We justified this decision on the grounds that
there was “no question” that the plaintiffs “intended” their
dismissal to be with prejudice, and further that the plaintiffs
had “absolutely nothing to gain by filing a voluntary dismissal
without prejudice.” Id. at 1508.
This court’s determination of finality in Concha represents
a fact-specific exception to the general rule that voluntary dis-
missals without prejudice do not constitute final judgments
for the purposes of appeal. As we have held, any exceptions
to our established bright-line jurisdictional rules should be
construed narrowly. Cf. Am. States Ins. Co. v. Dastar Corp.,
318 F.3d 881, 888-89 (9th Cir. 2003) (holding that the James
exception must be narrowly construed because “[a]ny other
interpretation . . . would undermine [Federal Rule of Civil
Procedure] 54(b) and add uncertainty to the final judgment
rule”). Thus, in accordance with the specific facts addressed
in Concha, I conclude that a court may construe a party’s vol-
untary dismissal without prejudice to be one with prejudice
only where (1) there is “no question” that the party “intended”
the dismissal to be with prejudice, and (2) that party has “ab-
solutely nothing to gain” from filing a voluntary dismissal
without prejudice. Concha, 62 F.3d at 1508-09.
The plaintiffs in this case cannot make these required
showings. First, as described above, the record demonstrates
that the plaintiffs in fact had no intention of entering a dis-
missal with prejudice. When asked by opposing counsel to
change their without-prejudice dismissal to one with preju-
dice, plaintiffs’ counsel flatly refused.
Second, it is not at all clear that the plaintiffs had “abso-
lutely nothing to gain” from filing a without-prejudice dis-
missal. In fact, the logical inference from their refusal to enter
such a dismissal is that they perceived some advantage to
ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY 15459
obtaining a dismissal without prejudice. Moreover, although
the plaintiffs argue that an adverse decision on this appeal
would preclude their dismissed claims against the air district,
nothing would prevent them from refiling their air district
claims and seeking a different result. The majority cites the
plaintiffs’ representations at oral argument that they do not
seek to relitigate these claims as evidence that there is little
possibility of such piecemeal litigation. (Maj. Op. 15444.)
However, the whole point of having bright-line jurisdictional
rules is to avoid the expense and effort of appeal in the first
place. We cannot have a rule where parties are unable to
determine appellate jurisdiction based on a facial examination
of the record, but must instead go through the trouble of writ-
ing briefs and preparing for oral argument to guard against the
possibility of a last-minute determination of jurisdiction.
Cheng v. Comm’r Internal Revenue Serv., 878 F.2d 306, 310
(9th Cir. 1989) (“[O]ne of the primary purposes underlying
the final judgment rule [is] the efficient use of judicial
resources”).
For these reasons, I would not follow the majority’s
approach in construing the plaintiffs’ voluntary dismissal to
be one with prejudice. To expand the exception recognized in
Concha beyond the specific facts of that case, as the majority
does here, risks the adoption of an all-too flexible test for fed-
eral jurisdiction, one that would mimic former Justice Potter
Stewart’s definition of pornography: I know it when I see it.
This approach is diametrically opposed to our federal juris-
prudence, which requires finality to be clear and identifiable
on the record. 15A Wright & Miller, Federal Practice and
Procedure § 3913, at 462 (1992) (“Although well-established
rules of appealability might at times cause an action to be
determined unjustly, slowly, and expensively, they have none-
theless the great virtue of forestalling the delay, harassment,
expense, and duplication that could result from multiple or ill-
timed appeals”).
Moreover, the plaintiffs had multiple avenues through
which they could have appealed the non-final orders entered
15460 ROMOLAND SCHOOL v. INLAND EMPIRE ENERGY
by the district court. Most obviously, they could have simply
specified that their dismissal was with prejudice, thereby
adhering to this court’s established rules of federal jurisdic-
tion. Or, if a dismissal with prejudice was unpalatable, they
could have moved for a Rule 54(b) severance, which permits
a party to appeal otherwise non-final orders after the district
court has made the required determination that there is no just
reason for delay. Fed. R. Civ. P. 54(b) (2008).
I suggest we take an unfortunate and counter-productive
turn when we fail to accept the dismissal with prejudice as
necessary for appellate jurisdiction. We do not need to remind
good lawyers to meet this standard, and we do not improve
the appellate process by crafting rules to make up for those
who are incompetent. Federal appellate jurisdiction is based
on statutory requirements; and it is, in my view, misguided for
us to stray from specific, easily discoverable requirements
(dismissal with prejudice) to those so indefinite that guess-
work is required (dismissal without prejudice — but I did not
mean it).
Therefore, I concur in the result of the majority, but for the
reason that our court’s jurisdiction has not been demonstrated.