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City & County of San Francisco v. U.S. Department of Transportation

United States Court of Appeals, Ninth Circuit

July 30, 2015

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF TRANSPORTATION; ANTHONY FOXX, in his official capacity as Secretary, Department of Transportation; PIPELINE & HAZARDOUS MATERIALS SAFETY ADMINISTRATION; MARIE THERESE DOMINGUEZ, in her official capacity as Deputy Administrator of Pipeline & Hazardous Materials Safety Administration, Defendants-Appellees

San Francisco, California; May 13, 2015.

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:12-cv-00711-RS. Richard Seeborg, District Judge, Presiding.

SYLLABUS

SUMMARY[**]

Natural Gas Pipeline Safety Act

The panel affirmed the district court's dismissal of an action brought by the City and County of San Francisco against the Secretary of Transportation and the Pipeline and Hazardous Materials Safety Administration (the " Agency" ), alleging claims under the Natural Gas Pipeline Safety Act of 1968 and the Administrative Procedure Act, arising after a natural gas transmission pipeline exploded in San Bruno, California, causing multiple deaths and injuries and widespread damage to property.

The panel held that the plain statutory language, the statutory structure, the legislative history, the structure of similar federal statutes, and interpretations of similar statutory provisions by the Supreme Court and other circuits led to its conclusion that the Pipeline Safety Act did not authorize mandamus-type citizen suits against the Agency.

The panel held that San Francisco's claims - that the Agency violated the Administrative Procedure Act by (1) unlawfully withholding the action of deciding whether the California Public Utility Commission adequately enforced federal pipeline safety standards, and (2) arbitrarily and capriciously approving the Commission's certification and providing federal funding to the Commission -- were not cognizable under the Administrative Procedure Act.

Christine Van Aken (argued), Kristine A. Poplawski, Owen J. Clements, and Dennis J. Herrera, City Attorney's Office for the City and County of San Francisco, San Francisco, California, for Plaintiff-Appellant.

Patrick G. Nemeroff (argued), Mark B. Stern, André Birotte, Jr., and Stuart F. Delery, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Glenn Vanzura and Lee A. Linderman, Irell & Manella LLP, Los Angeles, California, for Amicus Curiae Pipeline Safety Trust.

Before: Sidney R. Thomas, Chief Judge, John B. Owens, Circuit Judge, and Anthony J. Battaglia,[*] District Judge.

OPINION

THOMAS, Chief Judge:

On September 9, 2010, a natural gas transmission pipeline owned and operated by Pacific Gas & Electric Company (" PG& E" ) ruptured in San Bruno, California. The ensuing explosion and fire killed eight people, injured dozens more, and caused widespread damage to property. Fearing a recurrence, the City and County of San Francisco (" San Francisco" ) filed suit against the Secretary of Transportation (" Secretary" ) and the Pipeline and Hazardous Materials Safety Administration (" the Agency" ), alleging that the Agency failed to comply with the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. § 60101 et seq. (" Pipeline Safety Act" ).

Under the Pipeline Safety Act, the Agency promulgates minimum federal safety standards for natural gas pipelines and pipeline facilities. The California Public Utility Commission (" CPUC" ) has assumed jurisdiction to regulate and enforce the Pipeline Safety Act's requirements as to intrastate pipelines within California. San Francisco alleges that the Agency violated the Pipeline Safety Act when it approved the CPUC's certification that its regulatory activities meet the minimum federal standards set by the Agency, and when it disbursed funding to the CPUC to support monitoring and enforcement of intrastate pipelines in California.

The issue in this case is whether San Francisco's claims may proceed, either under the Administrative Procedure Act (" APA" ) or under the Pipeline Safety Act's citizen suit provision. We conclude that they may not.

I

The soil beneath our feet is crisscrossed with natural gas pipelines. There are 2.5 million miles of natural gas and hazardous liquid pipelines throughout the United States, including 100,000 natural gas pipelines in California. We rely on these pipelines to supply our critical energy needs, but they also pose public safety risks. Pipelines transport highly flammable, often highly pressurized, natural gas to urban areas through many aging pipelines originally designed for use in lower population density regions.

Although interstate pipelines have been subject to federal regulation since 1938, states retained exclusive jurisdiction over regulation of pipelines wholly within their borders until 1968. In that year, Congress enacted the Pipeline Safety Act, which empowered the Secretary to promulgate minimum federal safety standards for all natural gas pipelines and facilities. Since its creation in 2004, the Agency has administered the Pipeline Safety Act pursuant to delegation by the Secretary.

Intrastate pipeline regulation remains distinct from that of interstate pipelines. Although states may not directly regulate or impose additional or more stringent safety standards on interstate pipelines, 49 U.S.C. § 60104(c), the Pipeline Safety Act provides a strong role for state involvement in intrastate pipeline regulation. If a state certifies that it has adopted the minimum federal safety standards and is enforcing those standards, the state assumes exclusive regulatory jurisdiction over most intrastate pipelines within its borders. See id. § 60105(a)-(b). A state that has done so may choose to impose additional or more stringent requirements on intrastate pipelines so long as they continue to meet the minimum federal safety standards established by the Agency. Id. § 60104(c).

Unlike similar statutes that require more active federal intervention, such as the Clean Air Act, the cooperative federalism scheme established by the Pipeline Safety Act contains only two short subsections describing the Secretary's authority to monitor state safety programs and reject a certification. They are contained at the end of ยง ...


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