The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON PARTIES' REQUESTS FOR COSTS AND ATTORNEY FEES AND FINAL JUDGMENT
On June 24, 2008, the court filed an order denying Plaintiffs' motion for reconsideration and ordering that the parties submit, either by separate letters or by stipulation, any issues the parties understand are remaining before the court and submit suggested language for entry of final judgment. The parties have responded with letters to the court that agree that no substantive issues remain to be decided and that agree that the parties have not reached agreement on the issues of the availability of attorney fees, the allocation of costs, and the language of final judgment. This order addresses the three remaining issues and closes the case.
In their letter of July 25, 2008, Plaintiffs contend they are the prevailing party, having prevailed on count II of the First Amended Complaint, and are therefore entitled to attorney's fees as part of costs pursuant to 42 U.S.C. § 1988(b). Defendant's letter of July 29, 2008, contends that, notwithstanding whether Plaintiffs can be considered to have prevailed on any counts, attorney fees are not available under section 1988(b) under the facts of this case. The court agrees.
Section 1988(b) of Title 42 of the United States Code provides, in pertinent part:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, [. . .] or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs [. . . .]
An award of attorney's fees pursuant to section 1988(b) is predicated on a party successfully enforcing a provision of one of the enumerated statutes. Plaintiffs do not specify which statute they prevailed on in order to qualify for attorney's fees under section 1988(b), but the court presumes Plaintiffs are pressing their claim for attorney's fees based on the contention they were prevailing parties under 42 U.S.C. section 1983. No other provision listed above has any possible relevance to the facts of this case.
In City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005), the Supreme Court noted:
Our subsequent cases have made clear, however, that § 1983 does not provide an avenue for relief every time a state actor violates a federal law. As a threshold matter, the text of § 1983 permits the enforcement of "rights, not the broader or vaguer 'benefits' or 'interests.'" [Citation.] accordingly, to sustain a § 1983 action, the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs. [Citation.]
Id. at 119 (italics in original).
Count II of Plaintiffs' First Amended Complaint ("FAC") seeks to enjoin enforcement of California state regulations codified at California Health and Safety Code section 43018.5(b)(1) that limit automotive emissions of "greenhouse gasses" (hereinafter the "AB 1493 regulations"), on the ground such enforcement is preempted by section 209(a) of the Federal Clean Air Act, 42 U.S.C. § 7543(a). "The Supremacy Clause of Article VI of the United States Constitution grants Congress the power to preempt state or local law." Olympic Pipeline Co. v. City of Seattle, 437 F.3d 872, 877 (9th Cir. 2006).
A claim under the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for enforcement of a federal law. "The primary function of the Supremacy Clause is to define the relationship between state and federal law. It is essentially a power conferring provision, one that allocates authority between the national and state governments . . . ." White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848 (9 Cir. 1987).
A claim under the Supremacy Clause simply asserts that a federal statute has taken away local authority to ...