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Coalition For Clean Air, A California Nonprofit Corporation v. Vwr International

January 8, 2013

COALITION FOR CLEAN AIR, A CALIFORNIA NONPROFIT CORPORATION; CENTER FOR ENVIRONMENTAL HEALTH, A CALIFORNIA NONPROFIT CORPORATION; ASSOCIATION OF IRRITATED RESIDENTS, A CALIFORNIA NONPROFIT ORGANIZATION; TEAMSTERS JOINT COUNSEL 7, AN ORGANIZED LABOR UNION; KEVIN LONG, AN INDIVIDUAL, PLAINTIFFS,
v.
VWR INTERNATIONAL, LLC, A DELAWARE CORPORATION; AND DOES 1-X, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING PLAINTIFFS' REQUEST FOR PRELIMINARY INJUNCTION (DOC. 6).

I.INTRODUCTION

This case arises under the citizen suit provision of the Clean Air Act ("CAA"), 42 U.S.C. § 7604(a). Plaintiffs, a coalition of environmental and labor interests, allege that Defendant VWR International, LLC, ("VWR"), a laboratory supply distributor, violated San Joaquin Valley Air Pollution Control District ("District") Rule 9510, implemented and approved as part of California's State Implementation Plan ("SIP") under the CAA, by failing to apply for an Indirect Source Review ("ISR") permit prior to obtaining approval to open and/or operate a trucking distribution facility in Visalia, California. Before the Court for decision is Plaintiffs' request for a preliminary injunction staying all further construction and operation activities at the Visalia facility. Doc. 6.

Plaintiffs filed their preliminary injunction request on September 28, 2012, noticing a hearing for October 29, 2012. Id. Thereafter, the parties stipulated to continue the hearing date to November 13, 2012. Doc. 9. Defendants filed an opposition on October 25, 2012, Doc. 10, to which Plaintiffs replied on November 6, 2012, Doc. 14. One day later, Defendants filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), setting that motion for hearing on December 10, 2012. Doc. 17. Finding the harms alleged in the request for injunctive relief not to be of such urgency that the request could not be addressed alongside the motion to dismiss, and finding the need for additional briefing on the presence of irreparable harm, the Court consolidated the briefing schedules on the pending motions. Doc. 18. The parties then stipulated to move the hearing date on both motions to December 20, 2012, Doc. 22, filed supplemental briefs regarding irreparable harm, Docs. 24 & 26, and completed briefing on the motion to dismiss. Upon preliminary review of the parties' filings, the hearing was vacated to permit time for the Court to thoroughly review the voluminous materials. Doc. 30. Having reviewed those filings, and in light of the entire record, the Court is now prepared to rule on Plaintiffs' request for preliminary injunction. The Court does not believe oral argument is necessary to aid resolution of this request, and hereby rules on the papers pursuant to Local Rule 230(g).

II.DISCUSSION

A.Standard of Decision

Injunctive relief is an "extraordinary remedy, never awarded as of right." Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). As such, a court may grant such relief only "upon a clear showing that the plaintiff is entitled to such relief." Id. at 22. To prevail, the moving party must show:

(1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm absent preliminary injunctive relief; (3) that the balance of equities tips in the moving party's favor; and (4) that preliminary injunctive relief is in the public interest. Id. at 20. In considering the four factors, the Court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id. at 24.

B.Rule 9510.

District Rule 9510, which "is designed to achieve reductions in air pollution attributable to development projects," is familiar to this Court. Nat'l Ass'n of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., 2008 WL 4330449, *4 (E.D. Cal. Sept. 19, 2008) aff'd, 627 F.3d 730 (9th Cir. 2010).

When Rule 9510 was adopted, the San Joaquin Valley was classified as nonattainment under federal and state standards for PM10, PM2.5 and ozone. PM10 and PM2.5 can be directly-emitted geologic material, including entrained road and other dust. PM10 and PM2.5 can [also be formed when precursor emissions, such as oxides of Nitrogen ("NOx") and volatile organic compounds ("VOCs") are emitted as a gas and form PM10 and PM2.5 through chemical processes. [N]ew residential and commercial development indirectly causes air pollution by attracting mobile sources and contributing increased energy use. [] Rule 9510 targets indirect sources of air pollution.... [by] set[ting] target reductions for emissions associated with construction ("construction emissions") and future operation of development projects ("operational emissions"). For construction, Rule 9510's target is to reduce PM10 emissions by 45 percent and NOx by 20 percent as compared to emissions generated using "average" construction equipment in California. For future operation, Rule 9510's target is to incorporate mitigation measures into project design to reduce emissions that would be otherwise indirectly caused by the project (e.g., increased traffic) over a 10-year period. The PM 10 target is to reduce unmitigated operational emissions by 50 percent. The NOx target is to reduce emissions by 33.3 percent.

[U]nder Rule 9510, a computer model is used to calculate emissions attributable to "construction" and "operational" phases of a development project, and the project developer is responsible to mitigate a portion of those emissions. The District notes that under Rule 9510, mitigation may be achieved: (1) "on-site" by incorporating design features and other pollution mitigation measures into the project; (2) "off-site" by paying a mitigation fee which the District uses to "buy" requisite amount of emissions reductions through its emissions reduction incentive program ("ERIP"); or (3) by a combination of "on-site" and "off-site" measures.

Id. at *5.

C.Irreparable ...


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