ORDER GRANTING DEFENDANTS' RULE 12(B)(1) MOTIONS TO DISMISS
Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel ("Avgas") to air carriers and other aircraft operators at airports across California and the rest of the United States. On June 30, 2011, Plaintiffs filed a motion for preliminary injunction to enjoin Defendants Center for Environmental Health ("CEH") and Kamala Harris, Attorney General of the State of California ("Attorney General Harris") from enforcing or threatening to enforce the Safe Drinking Water and Toxic Enforcement Act of 1986 ("Proposition 65") against Plaintiffs. In conjunction with their motion for preliminary injunction, on August 26, 2011, Plaintiffs filed a First Amended Complaint ("FAC") for Declaratory and Injunctive Relief against CEH, Attorney General Harris, and Dr. George Alexeeff ("Dr. Alexeeff"), Acting Director of the California Office of Environmental Health Hazard Assessment ("OEHHA").*fn1 In the FAC, Plaintiffs seek (1) a declaratory judgment that Proposition 65 violates the Supremacy Clause of the United States Constitution because it is preempted by federal law; (2) a declaratory judgment that Proposition 65 violates the Commerce Clause of the United States Constitution; and (3) an injunction that enjoins Defendants from enforcing or threatening to enforce Proposition 65 against Plaintiffs.
Proposition 65 includes two distinct provisions: (1) the warning provision of California Health & Safety Code § 25249.6, which requires the provision of warnings to individuals exposed to carcinogens and reproductive toxins by those causing the exposure; and (2) the discharge prohibition of California Health & Safety Code § 25249.5, which prohibits entities operating in California from discharging carcinogens and reproductive toxins into sources of drinking water.*fn2 Under Proposition 65, any person may file suit in the public interest so long as the private enforcement action is (1) commenced more than sixty days from the notice of alleged violation; and (2) neither the Attorney General nor any other qualified public prosecutor has commenced and is diligently prosecuting an action against the violation. See Cal. Health & Safety Code § 25249.7(d).
In this case, on May 9, 2011, CEH sent three Notices of Violation of Proposition 65 to
Plaintiffs. All three of the May 9, 2011 Notices of Violation contained allegations that Plaintiffs were violating the "warning requirement" of Proposition 65. In addition, two of the three May 9, 2011 Notices of Violation contained allegations that certain Plaintiffs were violating the "discharge prohibition" of Proposition 65. On August 16, 2011, CEH issued Amended Notices of Violation, which removed the "discharge prohibition" allegations from the two Notices that included such allegations.
Subsequently, on September 2, 2011, Defendants Attorney General Harris and Dr. Alexeeff (collectively "State Defendants") filed a motion to dismiss the FAC, and Defendant CEH filed a motion to dismiss the FAC.*fn3 Both motions to dismiss are brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On October 3, 2011, the Court held a hearing with respect to these motions. For the reasons that follow, Defendants' Rule 12(b)(1) motions are granted.
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. "It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must not be disregarded nor evaded." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). A challenge to jurisdiction "can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint."
Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Thus, the Court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citation omitted). Furthermore, when subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
1. Plaintiffs' claims against State Defendants are not ripe for adjudication.
In its reply brief and at the hearing, CEH raised the argument that all of Plaintiffs' claims against State Defendants are not ripe for adjudication because Attorney General Harris has explicitly stated that there is no intention to sue Plaintiffs under Proposition 65.*fn4 See CEH Reply at 16:18-19, Doc. 66 at 20; Hearing Transcript at 56:18-25, Doc. 72 at 56.
Ripeness is "peculiarly a question of timing." Buckley v. Valeo, 424 U.S. 1, 114 (1976) (citation omitted). The basic rationale behind the ripeness doctrine "is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements," when those "disagreements" are premised on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580-581 (1985). "Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution." Id.
When a litigant brings a preenforcement challenge, "a generalized threat of prosecution will not satisfy the ripeness requirement." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009) (internal quotation marks and citation omitted). "Rather, there must be a 'genuine threat of imminent prosecution.'" Id. Plaintiffs must face a "realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement[.]" Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Thus, "[w]hen plaintiffs 'do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a ...