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Rocky Mountain Farmers Union v. Corey

United States District Court, E.D. California

June 15, 2017

ROCKY MOUNTAIN FARMERS UNION, et al., Plaintiffs,
v.
RICHARD W. COREY, in his official capacity as Executive Officer of the California Air Resources Board, et al., Defendants.

          MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTIONS TO DISMISS (DOCS. 378, 380)

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         I. INTRODUCTION

         Two sets of Plaintiffs, the “RMFU Plaintiffs”[2] and the “AFPM Plaintiffs, ”[3] challenge the constitutionality of California's Low Carbon Fuel Standard (“LCFS”), Cal. Code Regs. Tit. 17, §§ 75480-90. Defendants[4] move to dismiss all four claims in the RMFU Plaintiffs' Third Amended Complaint (“TAC”), Doc. 374. Doc. 378. Defendants move for judgment on the pleadings on the AFPM Plaintiffs' claims in their Second Amended Complaint (“SAC”), Doc. 373, concerning the now-repealed version of the LCFS, and move to dismiss the remaining claims against the currently operative LCFS. Doc. 380-1.

         The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 388. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motions.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         This case concerns Plaintiffs' years-long and complex challenge to the LCFS.[5] After the Ninth Circuit remanded the case to this Court in 2014, see Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013) (“RMFU”), the Court granted in part and denied in part the AFPM Plaintiffs' motion to amend the complaint. Rocky Mountain Farmers Union v. Goldstene, No. 1:09-cv-2234-LJO-BAM, 2014 WL 7004725, at *1 (E.D. Cal. Dec.11, 2014) (“RMFU Amendment”). In August 2015, the Court granted in part and denied in part Defendants' motion to dismiss certain of the AFPM Plaintiffs' claims. See Am. Fuels & Petrochemicals Mfrs. Ass'n v. Corey, No. 1:09-cv-2234-LJO-BAM, 2015 WL 5096279, at *1 (E.D. Cal. Aug. 28, 2015) (“MTD Order”). In June 2016, the Court granted Plaintiffs' second motion to amend their pleadings. See Rocky Mountain Farmers Union v. Corey, No. 1:09-cv-2234-LJO-BAM, 2016 WL 3277018 (E.D. Cal. June 15, 2016) (“RMFU Amendment II”). The Court incorporates by reference the summary of the extensive procedural history of this consolidated action contained in RMFU Amendment, 2014 WL 7004725, at *1-8, and the MTD Order, 2015 WL 5096279, at *1-5. Only an abbreviated recitation of the complex factual and procedural background follows; the Court discusses the relevant aspects of the facts and prior proceedings in more detail in its analysis below.

         The California Air Resources Board (“CARB”) promulgated and adopted the LCFS[6] in 2009 and 2010. TAC ¶ 37. The regulation went into effect in 2011 (“the Original LCFS”), and CARB amended it in 2012 (“the 2012 LCFS”). SAC ¶ 75. CARB repealed the LCFS in 2015 after the California Court of Appeal held that CARB made errors when adopting it. See POET, LLC v. Cal. Air. Res. Bd., 218 Cal.App.4th 681 (2013); see also Doc. 379-1, Ex. A. CARB adopted a new LCFS in 2015 (“the 2015 LCFS”), which went into effect in 2016, and remains the operative version of the regulation. See Doc. 379-1, Ex. A, at 1-6.

         The AFPM Plaintiffs now bring claims against all three versions of the LCFS; the RMFU Plaintiffs bring claims against only the 2015 LCFS. As explained in more detail below, the LCFS regulates both ethanol and crude oil. The RMFU Plaintiffs challenge the LCFS's ethanol provisions whereas the AFPM Plaintiffs challenge its crude oil provisions.

         The RMFU Plaintiffs' TAC contains four causes of action. TAC at 18-22. Claims one and two allege, respectively, that the LCFS is preempted by federal law on its face and as-applied to Plaintiff Growth Energy.[7] TAC at 15-18. Specifically, the RMFU Plaintiffs assert the federal Renewable Fuel Standard (“RFS”), 42 U.S.C. § 7545(o)(2)(A)(i), [8] of the Energy Independence and Security Act (“EISA”) preempts the LCFS. Id. ¶¶ 66-68. Claims three and four allege, respectively, that the LCFS “improperly regulates, discriminates against, and unduly burdens interstate commerce and so is invalid” on its face and as applied to Growth Energy. Id. at 18-22.

         The AFPM Plaintiffs assert three causes of action in their SAC. The first and second allege that all three versions of the LCFS violate the Commerce Clause because they “impermissibly regulate conduct occurring wholly outside of California.” SAC ¶¶ 96, 104; see also Id. ¶¶ 93, 101. The third cause of action asserts all three versions of the LCFS violate the Commerce Clause “by discriminating against transportation fuels produced in other States and other countries.” Id. ¶ 111. The AFPM Plaintiffs further assert “[t]he discrimination inherent in the Original LCFS, 2012 LCFS, and 2015 LCFS is designed to provide an unfair competitive advantage to local economic interests and to promote the use of California fuels in California, ” which “impose[s] significant burdens on Plaintiffs' members in connection with their conduct of interstate commerce.” Id. ¶¶ 113-14.

         With respect to their Commerce Clause claims, both sets of Plaintiffs assert the ethanol provisions of the LCFS discriminate on their face, and in their purpose and effect. The RMFU Plaintiffs further assert the ethanol provisions fail under Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).[9]

         Thus, between both sets of Plaintiffs, they assert the following:

(1) The LCFS is preempted by federal law, namely, the RFS in the EISA, on its face and as applied to Growth Energy;
(2) The LCFS, in all three of its forms, is an impermissible extraterritorial regulation that violates the Commerce Clause; and
(3) The LCFS, in all three of its forms, violates the Commerce Clause
(a) on its face,
(b) in purpose and effect, and
(c) under Pike.

         Defendants (1) move for judgment on the pleadings under Federal Rule[10] of Civil Procedure 12(c) as to Plaintiffs' claims concerning the Original LCFS on the ground they are moot, and (2) move to dismiss the remaining claims under Rule 12(b)(6) as barred by the law of the case, or for failure to state a claim (or both). Plaintiffs oppose in all respects.

         III.STANDARDS OF DECISION

         A. Rule 12(b)(6)

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

         To survive a 12(b)(6) motion to dismiss, the plaintiff must, in accordance with Rule 8, allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions.” Twombly, 550 U.S. at 555 (internal citations omitted). Thus, “bare assertions . . . amount[ing] to nothing more than a ‘formulaic recitation of the elements' . . . are not entitled to be assumed true.” Iqbal, 556 U.S. at 681. “[T]o be entitled to the presumption of truth, allegations in a complaint . . . must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In practice, “a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562.

         B. Rule 12(c)

         Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” “A motion for judgment on the pleadings should be granted where it appears the moving party is entitled to judgment as a matter of law.” Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003). A “judgment on the pleadings is appropriate when, even if all allegations in the complaint are true, the moving party is entitled to judgment as a matter of law.” Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993).

         “A judgment on the pleadings is a decision on the merits.” 3550 Stevens Creek Assocs. v. Barclays Bank of California, 915 F.2d 1355, 1356 (9th Cir.1990), cert. denied, 500 U.S. 917 (1991). A 12(c) motion “is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Herbert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per curiam). “[T]he central issue is whether, in light most favorable to the plaintiff, the complaint states a valid claim for relief.” Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir.2001). “[A]ll allegations of fact of the opposing party are accepted as true.” Austad v. United States, 386 F.2d 147, 149 (9th Cir.1967). Thus, a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is “functionally identical” to a motion to dismiss under Rule 12(b)(6). Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Although Rule 12(c) does not mention leave to amend, courts have discretion to grant a Rule 12(c) motion with leave to amend. See Carmen v. San Francisco Unified Sch. Dist., 982 F.Supp. 1396, 1401 (N.D.Cal. 1997).

         Like a Rule 12(b)(6) motion to dismiss, a Rule 12(c) motion challenges the legal sufficiency of an opposing party's pleadings. “When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one.” Balistreri, 901 F.2d at 699. Dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Id. “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 545 (internal citations and quotations omitted). “While a complaint . . . does not need detailed factual allegations . . . a plaintiffs obligation to provide the ‘grounds' of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitations of the elements of a cause of action will not do.” Id. at 1964.

         IV. DISCUSSION

         A. Uncontested aspects of Defendants' motions

         The AFPM Plaintiffs candidly acknowledge that a number of their claims are foreclosed by RMFU and this Court's prior decisions and, accordingly, do not oppose Defendants' motions to dismiss them or for judgment on the pleadings on them. See Doc. 383 at 5-6. Those claims are:

• All claims against the Original and 2012 LCFS, except for the claims that those regulations discriminate against interstate commerce in purpose and effect;
• The Original, 2012, and 2015 LCFS are impermissible extraterritorial regulations;
• The crude oil provisions of the Original, 2012, and 2015 LCFS discriminate against interstate commerce; and
• The ethanol provisions of the Original, 2012, and 2015 LCFS facially discriminate against interstate commerce.

         Doc. 383 at 5-6, 13-14. Although the RMFU Plaintiffs assert the same uncontested claims as the AFPM Plaintiffs do, they do not oppose Defendants' motion to dismiss or for judgment on the claims. See Doc. 384 at 24-28; see also Doc. 387 at 9. Because the parties agree that RMFU and the Court's prior decisions foreclose these claims, the Court GRANTS Defendants' motions on them WITHOUT LEAVE TO AMEND.[11]

         Therefore, all that remains of the AFPM Plaintiffs' claims are their claims that the ethanol provisions of the Original, 2012, and 2015 LCFS discriminate against interstate commerce in purpose and effect. See Doc. 383 at 6. The RMFU Plaintiffs assert the same claims, and additionally assert that all versions of the LCFS are preempted by federal law and the ethanol provisions of all versions of the LCFS fail under Pike.

         B. Whether the AFPM Plaintiffs' claims against the Original and 2012 LCFS are moot

         Defendants move for judgment on the pleadings on AFPM Plaintiffs' claims against the Original LCFS and 2012 LCFS on the ground that they are moot because both versions have been repealed and replaced. Doc. 380-1 at 15. Specifically, Defendants argue those claims are moot because the Court cannot grant any prospective relief, and the Eleventh Amendment bars any retrospective relief. Id. at 16.

         In their opposition, the AFPM Plaintiffs assert the Ninth Circuit held in RMFU that their challenges to repealed versions of the LCFS are not moot because “the credits allocated under both the Original LCFS and the 2012 LCFS continue to carry forward and may still be used by regulated parties to comply with the mandates of the 2015 LCFS.” Doc. 383 at 15 (citing RMFU, 730 F.3d at 1097 n.12). Thus, according to the AFPM Plaintiffs, the Court can grant prospective relief because how credits were calculated under prior versions of the LCFS affects how they will be calculated in the future, and the Court can therefore order that “credits generated under those prior versions be recalculated on a nondiscriminatory basis that comports with the Constitution.” Id. at 16.

         Defendants argue in their reply that the AFPM Plaintiffs' SAC does not contemplate the relief they purportedly seek, as stated in their opposition, i.e., that the Court order a recalculation of the credits assigned under the Original and 2012 LCFS. Doc. 385 at 3.[12] Defendants assert that, even if the SAC sought this remedy, it is unavailable to the AFPM Plaintiffs because it “1) would not redress the injuries AFPM alleges, 2) is barred by the Eleventh Amendment, 3) would be inherently inequitable, and 4) is the kind of individualized remedy AFPM lacks standing to seek.” Id. at 4.

         1. Relief AFPM Plaintiffs seek

         In the SAC, the AFPM Plaintiffs seek the following relief:

A. A declaratory judgment, pursuant to 28 U.S.C. § 2201, that the LCFS, as originally enacted and as amended in 2012 and 2015, violates the United States Constitution and is unenforceable;
B. A preliminary and permanent injunction enjoining the Defendants from implementing or enforcing the LCFS;
C. An order awarding plaintiffs their costs and attorneys' fees pursuant to 42 U.S.C. § 1988; and D. Such other and further relief as the Court deems just and proper.

         SAC at 20. The SAC thus does not explicitly request that the Court order a recalculation of credits assigned under the Original and 2012 LCFS, should the Court find them unconstitutional. Though Defendants suggest that this request is articulated only in the AFPM Plaintiffs' opposition, Defendants do not object to the Court's considering it. The Court will therefore assume without deciding that the AFPM Plaintiffs seek in the SAC the credits recalculation remedy that they articulate in their opposition. In any event, as discussed below, the AFPM Plaintiffs do not have standing to seek this remedy and, even if they did, it is barred by the Eleventh Amendment.

         2. Standing

         Defendants assert-for the first time in their reply-that the AFPM Plaintiffs lack standing.[13]The thrust of their one-paragraph argument is that determining the AFPM Plaintiffs' sought-after credit recalculation would require an assessment of the credits each of their thousands of members bought and sold, which is not permissible when a plaintiff, like the AFPM Plaintiffs, only has associational standing.[14] Doc. 385 at 8. In support, Defendants rely exclusively on Warth v. Seldin, 422 U.S. 490, 511 (1975). Id.

         In Warth, the Supreme Court explained that an entity has associational standing if, among other things, “the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause.” Id.[15] Warth and its progeny “have been understood to preclude associational standing when an organization seeks damages on behalf of its members.” United Food & Comm. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 554 (1996) (declining to apply to a union the prudential limitation barring an organization from seeking damages on behalf of its members, but only because Congress specifically permitted unions to do so).

         Although the AFPM Plaintiffs state they do not seek damages, Doc. 383 at 16, their request for a recalculation of credits generated under the Original and 2012 LCFS is effectively a request for damages, or so analogous to a request for damages to render it indistinguishable from the circumstances underpinning Warth, 422 U.S. at 515-16 (association plaintiff failed to allege “monetary injury to itself, nor any assignment of the damages claims of its members. . . . [m]oreover . . . the damages claims are not common to the entire membership, nor shared by all in equal degree”). The AFPM Plaintiffs allege the LCFS is unconstitutionally discriminatory, in part because it requires regulated entities who purchase Midwest ethanol “to purchase vast quantities of other fuels that California has assigned very low carbon intensities or to purchase ‘credits' accumulated by other entities subject to the LCFS.” SAC ¶ 68; see also Id. ¶ 33 (alleging fuel provides comply with the LCFS by, among other things, “purchas[ing] credits generated by other fuel providers”); Cal. Code Regs. § 95487 (outlining possible “Credit Transactions” under LCFS). As the AFPM Plaintiffs asserted on appeal before the Ninth Circuit: “The LCFS . . . penaliz[es] the use of fuels whose carbon-intensity scores exceed the regulation's annual cap and plac[es] such fuels at a substantial disadvantage in the California market: parties using such fuels must either purchase credits from their competitors . . . or incur . . . penalties.” Doc. 386-1 at 53. The AFPM Plaintiffs thus argued that the LCFS “is discriminatory because . . . higher carbon-intensity scores generate ‘deficits' that must be eliminated through the generation or purchase of ‘credits.'” Id. at 73. Because of this discriminatory effect, which leads to a price disparity between lower- and higher-carbon-intensity ethanol, the LCFS “could impose as much as $10 to $20 million in additional costs on regulated parties that sell gasoline in California.” Id. at 39.

         The AFPM Plaintiffs therefore contend the purported discriminatory effects of the LCFS caused their members to spend more money on purchasing credits to comply with the LCFS. If the Court were to order a recalculation of credits generated under the Original and 2012 LCFS, as they request, it would require a number of individualized determinations, including (1) who bought which credits; (2) whether the alleged discriminatory effects of the LCFS caused the party to spend more on those credits; and (3) if so, how that should be remedied, i.e., how much the parties are owed due to their overpayment-in other words, what their damages are. These necessary individualized determinations thus render the AFPM Plaintiffs without associational standing to seek the credit recalculations that they request because it would be impossible to make the determinations without the participation of the AFPM Plaintiffs' members. See Warth, 422 U.S. at 515-16; Brown Group, 517 U.S. at 554.

         3. Eleventh Amendment

         Although the AFPM Plaintiffs claim they do not seek damages, the Court's conclusion that the credit recalculations would require determining how much their members overpaid for credits-and ordering corresponding relief-leads the Court to conclude that the AFPM Plaintiffs essentially seek retrospective damages that are barred by the Eleventh Amendment. As explained above, the AFPM Plaintiffs claim the purported discriminatory effects of the Original and 2012 LCFS required them to purchase more credits (i.e., spend more money) than would have been required had that alleged discrimination not existed. They now ask that the credits-all of which were bought and sold by them and other parties-be recalculated and redistributed in a different manner. In effect, the AFPM Plaintiffs request a reshuffling of state funds.

         “Relief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred” by the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 278 (1986). This includes cases for declaratory and injunctive relief that seek “a compensatory, backward-looking remedy, ” Porter v. Jones, 319 F.3d 483, 491 n.7 (9th Cir. 2003), and encompasses “relief that is tantamount to an award of damages for a past violation of federal law, even though styled as something else.” Papasan, 478 U.S. at 278 (citations omitted). “On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury.” Id. (emphasis added) (citations omitted).

         Accordingly, to the extent the AFPM Plaintiffs seek compensatory relief (whether credit calculations or otherwise) that is based exclusively on Defendants' conduct that allegedly violated federal law in the past, the Eleventh Amendment precludes that relief. But, to the extent they seek relief for Defendants' past conduct that allegedly violated federal law that has an ongoing or future effect, the Eleventh Amendment does not preclude that relief. See Id. The Court therefore GRANTS IN PART and DENIES IN PART Defendants' motion for judgment on Plaintiffs' claims concerning the Original and 2012 LCFS on the ground they are barred by the Eleventh Amendment.

         As noted above, however, the Court finds it is a stretch, at best, to read the SAC as seeking the credit recalculation relief the AFPM Plaintiffs purportedly seek. More importantly, the Court finds that the Court cannot-legally or practically-order the recalculations. The AFPM Plaintiffs have provided no authority that remotely suggests that relief is permissible, and the Court cannot locate any. The Court therefore agrees with Defendants that, even if the Eleventh Amendment does not bar Plaintiffs' recalculation relief, the Court is unable to grant it because it would be impossible and inequitable to the parties who have already bought and sold LCFS credits to recalculate and reassign the credits. As Defendants point out, millions of credits worth tens of millions of dollars have already been bought by numerous parties, most of which are not parties to this case. See Doc. 385 at 6-7. The Court therefore GRANTS Defendants' motion for judgment on Plaintiffs' claims against the Original and 2012 LCFS to the extent they seek a recalculation of already assigned credits because doing so would be inequitable and impractical.

         4. Mootness

         This brings the Court to the issue of whether the AFPM Plaintiffs' claims against the Original and 2012 LCFS are moot. A footnote in the Ninth Circuit's decision in RMFU is directly on point and controls here. The court held:

Although the 2011 Provisions have been amended, this does not render the challenge to them moot. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Decker v. Nw. Envtl. Def. Ctr., __U.S.__, 133 S.Ct. 1326, 1335 (2013) (quotation marks and citation omitted). Here, the 2011 Provisions applied to crude oil delivered through December 31, 2011, so one year of Fuel Standard credits were allocated based on the distinction between emerging and existing sources and between HCICOs and non-HCICOs. Advisory 13-01 altered the treatment of Potential HCICOs to conform to the amended provisions, but sellers of verified HCICOs could have reported individual carbon intensity values during 2011. Credits awarded based on those values will carry forward to subsequent years and may be used by a regulated party to comply with the Fuel Standard mandates. Cal. Code Regs. tit. 17, §§ 95484(b), (c)(4), 95485(c). The propriety of the scheme under which those credits were distributed remains a live controversy.

RMFU, 730 F.3d at 1097 n.12.

         Plaintiffs had challenged the crude oil provisions of the Original LCFS (what the Ninth Circuit called “the 2011 Provisions”) in this Court and, by the time RMFU issued, they had been amended by the 2012 LCFS. See Id. The Ninth Circuit observed that the means by which credits were calculated under the Original LCFS had an effect on how they were calculated under the then-current version of the regulation, the 2012 LCFS. Id. The Ninth Circuit thus explicitly held that Plaintiffs' challenge to the Original LCFS was not moot because it had a live, ongoing effect then, which would continue into the future. See id.

         That holding is directly applicable here. The AFPM Plaintiffs allege, consistent with RMFU, that the Original and 2012 LCFS affect how credits are calculated under the 2015 LCFS. Their challenge to the Original and 2012 LCFS therefore is not moot; it remains “a live controversy.” Id.

         Regardless of this conclusion, as explained above, the AFPM Plaintiffs' potential remedy for any finding that either the Original or 2012 LCFS (or both) violated federal law is limited to the present and future effects of the Original and 2012 LCFS, and declaratory and injunctive relief against the regulations. Further, any remedy that is akin to damages, such as the AFPM Plaintiffs' request for credits recalculation, is barred by the Eleventh Amendment. See Papasan, 478 U.S. at 278 (citations omitted); see also Taylor v. Westly, 402 F.3d 924, 929-30 (9th Cir. 2005) (“[T]he Eleventh Amendment shields state governments . . . from declaratory judgments against the state governments that would have the practical effect of requiring the state treasury to pay money to claimants”) (footnote omitted). Accordingly, Defendants' motion for judgment on Plaintiffs' claims against the Original and 2012 LCFS on the ground they are moot is GRANTED IN PART and DENIED IN PART.

         C. ...


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