F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O , Plaintiff-Appellant

,

v

.

U.S. D E P A R

T M E N T O F T R A N S P O R T A T I O N ; A

N T H O N Y F O X X , in his official capacity

as Secretary
, Department of Transportation; P I P E L I N E & H A Z

A R D O U S M A T E R

I A L S S A F E T Y A D M I

N I S T R A T I O N ; M A R I E T H E R E S E D O M I

N G U E Z , in her official capacity as Deputy

Administrator of Pipeline & Haz ardous Materials Safety Administration, Defendants-Appellees

. N o. 13-15855

D.C. No. 3:12-cv-00711- RS

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Richard Seeborg , District J udg e, Presiding

Arg ued and Submitted May 13, 2015—San F rancisco, California

F iled J uly 30, 2015C I T Y & C T Y

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B efore: Sidney

R. Thomas, Chief J udg e, J ohn B . Owens, Circuit J udg e, and Anthony J . B attag lia, * District J u dg e.

Opinion by

Chief J udg e Thomas

SUMMARY * *

Natural G as P ipeline Saf ety Act

The panel affirmed the d i s trict court’s dismissal of an action broug ht by th e C i ty and County of San F r ancisco
ag ainst the Secretary of T r a n s p o rtation and the Pipeline a nd Haz ardous Materials Safety Administration (the “A g ency ”), alleg ing claims under the Natural G as Pipeline Safety Act o f 1968 and the Administrative Procedure Act, arising after a natural g as transmission pipeline ex ploded in San B runo, California, causing multip l e deaths and injuries a nd widespread damag e to property

.

The panel held that the plain statutory lan gu a ge , the statutory structure, the leg islative histo r y , t he structure o f similar feder al statutes, and interpretations o f similar statutory provisions by the Supreme Court and other c ircuits led to its conclusion that the Pipeline Safety Act d id not authoriz e mandamus-ty

pe citiz en suits ag ainst the Ag ency

.

* T h e Ho n o rab le A n th o n y J. B attag lia, District J u d g e f or th e U .S. District Co u r t fo r th e So u th ern District o f Calif o rn ia, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C I T Y & C T Y

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T h e panel held that San F rancisco’s claims – that t h e Ag ency v iolated the Administrative Procedure A ct b y (1) unlawfully withholding the action of deciding whether the California Public Utility Commission a dequately en forced federal pipeline safety standards, and (2) arbitraril y a nd capriciously approving th e C ommission’s certification a nd providing federal f

u nding to the Commission

– were not cog niz able under the Administrative Procedure Act.

COUNSEL

Christine Van Aken (arg

ued), Kristine A

. Poplawski, Owen J

. Clements, and Dennis J

. Herrera, City Attorney ' s Office for the City and County of San F r ancisco, San F rancisco, California, for Plaintiff-Appellant.

Patrick G. Nemeroff (arg

ued), Mark B

. Stern, André B irotte, J r., and Stuart F

. Delery

, United States Department of J ustice, W a shing ton, D.C., for Defendants-Appellees.

Glenn Vanz ura and L ee A. L inderman, I rell & Manella L L P, L os A ng eles, California, for Amicus Curiae Pipeline Safety Trust.

OP INION

THOMAS, Chief J udg e :

On September 9, 2 010, a natural g as transmission p ipeline owned and ope rated by Pacific Gas & Electric Company (“PG& E”) ruptured in San B runo, Californ i a

. The ensuing

ex p losion and fire k illed eig ht people, injured d oz ens more,C I T Y & C T Y

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and caused w idespread d a m a g e to property

. F e aring a recurrence, the City a

nd County o f S a n Francisco (“San F rancisco”) filed suit ag ainst the Secretary of Transportation (“Secretary

”) and the Pipeline and H az ardous Mater ials Safety Administration (“the Ag ency ”), alleg ing that the Ag ency failed to comply w ith the Natural Gas Pipeline Safety Act of 1968, 4 9 U .S.C. § 6 0101 et seq. (“Pipeline Safety Act”).

Under the Pipeline Safety A c t , the Ag e ncy promulg ates minimum federal safety standards for n atural g as p i pelines and pipeline facilities. The California Public Utility Commission (“CPUC”) h as assumed jurisdiction to reg ulate and e nforce the Pipeline S a f e ty Act’s requirements as to intrastate pipelines within California. San F rancisco alleg e s that the Ag ency violated the P i p e line Safety Act when it approved the CPUC’s c e rtification th a t its reg ulatory activities meet the minimum federal s t a n d ards set by the Ag ency , and w h e n it disbursed funding to the CPUC to support monitoring and enforcement of intrastate p ipelines in California.

The issue in this case is w hether San F rancisco’s c laims
may proceed, e ither under the Administrative Procedure A ct (“APA”) or under t h e P ipeline Safety Act’s citiz en suit provision. W e conclude that they may not.

I

The soil beneath our feet is crisscrossed with natural g a s pipelines. There are 2.5 m i l lion miles of natural g as a nd haz a rdous liquid pipel i n e s throug h out the United States, including 100,000 natural g as p ipelines in California. W e rely on these pipelines to supply o ur critical energ y needs, butC I T Y & C T Y

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they also pose public safety risks. Pipelines transport hig hly flammable, often hig h l y pressuriz ed, natural g as to urban

areas throug h many ag ing pipelines orig inally desig ned for use in lower population density reg ions.

Althoug h interstate pipelines have been subject to federal
reg ulation since 1 938, states retained ex clusive jurisdiction

over reg ulation of pipelines w holly within their borders until 1968. I n that y ear, Cong r ess enacted the Pipeline Safety Act, which em p o w ered the Secretary to promulg ate minimum federal safety standards for all n atural g as pi p e l i n es a nd facilit i es

. Since its creation in 2 004, the Ag ency has

a d m i n istered the Pipeline Safety Act pursuant to deleg ation by the Secretary

.

I ntrastate pipeline reg ulation remains distinct from that o f interstate pipelines. Althoug h states may not directly reg ulate

or impose additional or more string ent s a f e t y standards on interstate pipelines, 49 U.S.C. § 60104(c), the Pipeline Safety Act provides a strong role for state involvement in intrastate pipeline reg ulation. I f a state certifies that it has adopted the mi n i m um federal safety standards and is enforcing those standards, the state assumes ex c lusive reg ulatory jurisdiction

over most intrastate p ipelines wit hin its borders. See id. § 60105(a)–(b). A state that has done so may choose to impose addit i o nal or more string ent requirements on intrastate pipelines so long a s they continue t o meet the minimum federal safety standards established by the Ag ency

. Id. § 60104(c).

Unlike similar stat u t es that require more active federal intervention, such as t h e C lean Air Act, the cooperative federalism scheme e stabli s h e d by the Pipeline Safety A ct contains only two short subsections describing the S e c r e t a ry ’sC I T Y & C T Y

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authori t y to monitor state safety prog rams and reject a certification. They a re c ontained at the end o f § 60105, which lay s o ut the process f or s t a t e s assuming jurisdiction over intrastate pipelines:

(e) Monitoring .–The Secretary may monitor

a safety prog ram establ i s hed under this

s e c t ion to ensure that the prog ram complies with the certification. A State authority shall cooperate with th e Secretary under this subsection.

(f ) Rejections of certif ication .–I f a fter receiving a c e rtification the Secretary decides
t h e S t a t e a u t h o r i t y i s n o t e n f o r c i n g sat i sfactorily c ompliance w ith applicable safety standards prescribed under this chapter, the Secretary may reject the cer tification,
assert United States Government jurisdiction,

or t a ke other appropriate action to achieve adequate enforcement. The Secretary shall
g ive the a uthori t y n otice a

nd an opportunity f o r a hearing before taking final action unde r this subsection. When notice is gi v en, the burden of p roof is on the authority to demonstrate that it is e nforcing satisfactorily compliance with the prescribed standards.

Id. § 60105(e)–(f).

The Pipeline Safety Act also provides for f ederal funding
to states that assume jurisdiction under § 60105 up to 80% o f the costs reasonably r equired to carry out the safety prog ram. Id. § 60107(a). The Secretary ’s authority to provide fundingC I T Y & C T Y

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is restricted to c ases where the state e nsures the Secretary that it will p r ovide the remaining costs of a safety pro gr a m

. Id. § 60107(b).

I n addition, the Ag e n c y may w i t h h o ld any part of a pay ment when it decides that the authority is not carry ing out satisfactorily a safety prog ram. Id. The Ag en c y d etermines the percentag e (up to th e a l l owable ceiling of 80%) o f funding it will provide to states by combining tw o equally

w e i g hted metrics: (1) a score assig ned to that state’s an n u al
prog r ess r eport which must b e submitted after certification; and ( 2) a score resulting

from an annual prog ram evaluation undertaken b y the Ag en cy

. 4 9 C.F .R. § 198.13(b). These

scores r eflect an assess m e n t of the state’s policies a nd procedures, its inspection practices and ca p a city

, overall enforcement activity

, and other indicia of p r o g ram performance. Id. § 198.13(c).

California has participated in this cooperative f ederalism scheme for decades. The CPUC has assumed responsibility for reg ulating and enforcing a pipeli n e s a fety prog r am for intrastate pipelines and p ipeline facilities pur s u ant to certification under the Pipeli n e Safety Act. S ee Cal. Pub. Util. Code § 9 5 5 ( b )

. I n 2011, the CPUC received 71% funding from the Ag e ncy as a r esult of the ag g reg ate scoring
sy stem.

I I

This litig a tion arose in response to the disastrous 2010
natura l g as pipeline failure and resulting ex plosion in San Bruno, a fatal ex plosion in 2 008 in Rancho Cordova, a n d a 2 0 11 accident in Cupertino that caused sig nificant p roperty damag e. PG& E owned a n d operated all three pipelinesC I T Y & C T Y

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involved in the incidents. The Natio nal Transportation a nd Safety B oard (“NTSB ” ) determined the probable cause of the San B runo ex plosion to be “inadequate quality assurance a nd quality control in 1956” (when the pipeline was reloca t ed) and an “inadequate pipeline integ rity manag ement prog ram.” Nat’l Transp. Safety B d

., NTSB /PAR-11/01, Pacific Gas a nd Electri c Company Natural Gas Transmission Popeline Rupture and F ire, San B r

uno, California, Sept. 9, 2 010, at x ii (2011), a vailable at http://ntsb.g o v/ i nvestig ations/Accident Reports/Pag e s/PAR1101.aspx

. The NTSB report also c i ted
reg ulatory provisions ex e mpting the ruptured pi p el i ne from
pressure testing requirements, the CPUC’s failure to detect PG& E’s inadequate safety prog ram, and PG& E’s “fla w ed
emerg ency response proce d ures and d elay ” as contributory factors. I d. N TSB ’s c h a irman, joined b y two other members,

wr o t e a concurrence o bserving that PG& E e x ploited weaknesses in a lax sy stem of oversig ht and that “reg ulators

. . . placed a blind trust in the c ompan i e s t hat they were charg ed with overseeing

— to the detriment of public safety

. ” Id. at 135.

Citing the “substantial and unnecessary risk” posed to its cit i z ens’ lives and property by alleg edly inadequate

m o nitoring and reg ulation, San F rancisco sued the A g en c y and the United States Department of Transportation. I nvoking the Pipeline Safety Act’s citiz en suit provision, San F rancisco soug ht declaratory and injunctive relief to c ompel the Ag ency to comply w ith its d u t i es under the Pipeline Safety Act.

After holding that San F r a n c i s co met constitutional standing requirements to b r i n g a claim, the district court dismissed the suit with leave to amend because the claim was not cog niz able under the Pipeline Safety Act’s citiz en s u i tC I T Y & C T Y

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provision. The cour t ex plained that “while § 60121 would authoriz e a suit ag ainst g o vernment entities to the ex tent they
eng ag e in activities reg ulated by the [ Pipe l ine Safety Act] —such a s constructing or operating pipelines—it is n ot

an appropriate vehicle f

or seeking mandamus r elief reg arding defendants’ performance of their reg ulatory oblig ations.”

San F ran cisco amended its c o mplaint to include c laims under the A P A
, arg u ing that the Ag e ncy ’s approval of the CPUC’s certification w a s arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A) and also c onstituted a fa i l u re to act under 5 U.S.C. § 706(1). The district court d i s m i s s ed the Amended Complaint for failing to state a clai m and lack o f subject matter ju r i sdiction pursuant to F ed. R. Civ. P. 12(b)(6) and F ed. R. Civ. P. 12(b)(1). The c o u r t reasoned that San F rancisco’s failure to act claim w a s in essence a challeng e to the sufficiency o f the Ag enc y ’s action, not a g enuine inaction claim. T he court th e n c h a racteriz ed San F rancisco’s § 706(2)(A) claim as “coe x t e nsive” a nd dismissed it as well.

W e have jurisdiction over the district court’s entry of final judg ment p ursuant to 2 8 U.S.C. § 1291, and we revie w the district court’s dismissal de novo. Lacey v. Maricopa Cnty.
, 693 F .3d 896, 911 ( 9 t h Cir. 2012) (en banc); Ctr. for Policy Analysis on Trade & Health v. Office of th e U.S. Trade Representative , 540 F .3d 940, 944 (9th Cir. 2008).

I I I

The district c ourt properly concluded that the Pipeline Safety A ct’s citiz en suit p rovision does not allow mandamusty pe actions ag ainst the Ag ency in its capacity

as reg ulator.C I T Y & C T Y

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W h en ex a mining the scope of a p rivate rig ht of acti o n under a federal statute, we employ the usual tools of statutory construction, looking f

i r s t at the plain words of the statute, “particularly

to the provisions made therein for enforcement and relief.” Middlesex C n t y. S ewerage Auth. v. Nat’l S ea Clammers Ass'

n , 453 U .S. 1
, 13 (1981). “[ W ] hen deciding whether the lang uag e is pl a i n , we must read the words ‘ in their contex t an d w i t h a view to their place in the overall statutory sch e me.’” King v

. Burwell

,

_ _ U.S. __, 135 S. Ct. 2480 (2015) (quoting F

DA v. Brown & W

illiamson Tobacco Corp.
, 529 U.S. 120, 133 ( 2000)). I n addition, w e e x a mine the leg islative histor y , the statutory structure, and “other traditional aids of statutory in t erpretation” in order to ascertain cong ressional intent. M iddlesex Cnty. , 453 U.S. at 13. As p art of statutory analy sis, “ [ w ] e also look to similar
pr o v i s i ons within the statute as a whole and the lang uag e o f related or similar s t a t utes to aid in interpretation.” United States v. LKAV

, 712 F .3d 436, 440 (9th Cir. 2013).

T h e P ipeline Safety Act, by its plain lang uag e , allows only a very limited private rig h t of action. I t p e rmits injunctive citiz en suits ag ainst t he United States or other entities “for a violation of this c hapter o r a reg ulation prescribed or order issued under t h i s c hapter.” 4 9 U .S.C. § 60121(a). I n other words, privat e citiz en suits a re authoriz ed f

or substantive statutory or reg ulatory v iolations. B y its terms, the provision does not authoriz e a mandamusty p e a ction to c o mpel the Ag ency to perform nondiscretionary

reg ulatory

duties.

The statutory structure supports the conclusion. I n d eed, mandamus actions are authoriz ed as part of the Pipel i ne Safety Act’s whistleblower protection provisions. 49 U .S.C. § 60129(c). The inclusion of such a remedy in anotherC I T Y & C T Y

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portion of the statute indicates that Cong ress was aware of the

r e m e d y a nd how to create it. The fact that Cong ress cho s e not to include a manda m u s

- t y p e remedy in its citiz en suit provision is sig nificant. “[ W ] here Cong ress includes particular lang

uag e in one section of a statute but omits it in another section of the same Act, it is g enerally presumed that Cong r ess acts intentionally and purposely in the di s p arate inclusion or ex clusion.” Russello v. United States , 464 U.S. 16, 23 (1983) (alteration in orig inal).

The Pipeline Safety Act’s l e g i s l a tive history buttresses the conclusion that Cong ress did not intend to create a citiz en suit mandamus remedy

, e mphasiz ing that the citiz en s uit provision “would not supplant the S ecretary ’s e fforts for enforcement and compliance,” but w as “desig ned to assist the Department in its enforcement and compliance activities.” S. Rep. No. 94-852, at 8 (1976). San F rancisco points to a floor
statement by a sing le leg islator tang e ntially sug g esting the possibility o f mandamus-ty pe actions to en f

orce federal
reg ulations. See 122 Cong

. Rec. 32,725 (1976) (statement o f Rep. B rown). However, a s the Ag ency points o ut, there were

no similar statements from other lawmaker s or any f urther discussion of the possibil i t y o f m a n d a m us-ty pe actions, which
sug g ests that the cited stat e m ent was merely “ a sing le outly ing statement” that must not b e dispositive. See Gen. Dynamics Land S

ys., Inc. v. Cline

, 540 U.S. 581, 599 ( 2 004);

see also Chrysler Corp. v. Brown , 441 U .S. 281, 311 (1979) (“The remarks of a sing le leg islator, even the sponsor, are not controlling in analy

z ing leg islative history .”).

Ex amination of the statutory lang uag e of similar statutes also bolsters the c onclusion that the Pipeline Safety Act does
not authoriz e mandamus actions ag ainst the Ag ency

. Of

s i gn ificance h ere is the statutory lang u ag e of citiz en s u i tC I T Y & C T Y

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provisions in similar statutes e nacte d during the same time
p e r i o d as the Pipeline Safety A ct. Those statutes tend t o include two separate c itiz en suit provisions: one that provides for suits alleg ing a v i o l a t i on of a statute’s substantive provisions, and o ne that authoriz es suits ag ainst the ag e n c y head for failing to perform a nondiscretionary duty

. See, e.g. , 16 U.S.C. § 1540(g )(1)(B ) –(C) (Endang ered Species Act); 42 U.S.C. § 7604(a)(1)–(2) (Clean A ir Act). The latter ty pe of provision, which specificall y provides for mandamus relief, is conspicuously absent from the Pipeline Safety Act.

The Supreme Court h as interpreted a very similar citiz en suit provision in the Endang ered Species Act (“ESA”) a s not authoriz i ng suits ag ainst an ag ency alleg ing improper i m p lementation of a statute. I n Bennett v. Spear
, 520 U

. S

. 154, 173 (1997), the Court held that “the t e r m ‘ v iolation’ does not include the Secretary ’ s failure to perform his duties

as adminis t r ator of the ESA.” The d istrict court in this case

r elied heavily on Bennett in holding that the Pipeline S a f et y Act’s citiz en suit provision, like the similarl y

- w orded provision at stake in Bennett
, only provides f or suits ag ainst the g overnment in its capacity as a reg ulated party

.

San F rancisco attempts to disting uish Bennett b y pointing
out that, unlike under the ESA, the f ederal g overnment is not subject to the Pipeline Safety Act’s substantive requirements. See 49 U .S.C. §§ 60101(a)(17), 60108, 60117, 6 0118(a)(1). F u r t hermore, it arg ues, B ennett reflects the Court’s need to harmoniz e two side-by

- side c itiz en suit provisions. See 520 U.S. a t 173 ( ex plaining that a llowing suits u n d er 16 U.S.C. § 1540(g )(1)( A ) f o r any violation o f the ESA would render § 1540(g )(1)(C) a nullity ).C I T Y & C T Y

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However, Bennett i tself a p proached the question b y looking to the statute as a w hole. 520 U.S. at 174. Doing so here, the arg uments in support of the distr ict court’s application of Bennett to the Pipeline Safety Act outw eig h those ag ainst it. All three reasons cited by the Bennett Court support the district court’s conclusion. 1

F irst, San F rancisco’s a rgument that the provision authoriz i n g m andamus relief in the Pipeline Safety Act’s whistleblower protection section, 4 9 U.S.C. § 60129(c), need
not b e harmoniz ed w ith the citiz en suit provision, id. § 60121(a), is not persuasive. W hile the prox imity of the two citiz en suit p rovisions in the E SA may have re i n f o rced the need to r ead them in c omplementar y f a s h i on, the mere fact that the mandamus provision in the Pipeline Safety A ct is eig ht sections removed from the g eneral c itiz en suit provision does not mean that they need n ot b e read tog ether as part o f

a comprehensive statutory scheme. The inclusion o f § 60129(c) indicates that Cong ress was w e ll aware o f its ability to specifically authoriz e mandamus suits ag ainst the Secretary

.
Second, the use of “violation” in § 60121(a) also supports the district court’s conclu s ion. Elsewhere in the Pipeline Safety Act, “violation” consistently and ex clusively refers to substantive violations by reg ulated parties. L ike the ESA, the Pipeline Safety Act provides for substantial civil and criminal

1 T h e Co u rt in Ben n ett ex p lain ed th at (1 ) th e tw o citizen su it pro v isio n s

m u st b e read co m

patib ly w ith e a c h o t h er; (2 ) th e u se of t h e term

“ v io l atio n ” elsew

h ere in th e statu te i n d icates it w a s m ean t to co v er o n ly th e b eh av io r o f reg u lated p arties; an d (3 ) a b ro ad read in g o f “ v io latio n ” to in clu d e an y m alad m i n i s t r a t i o n of t h e statu te w o u ld ab ro g ate th e A P A ’ s f in al ag en cy

actio n req u irem en t . 5 2 0 U.S. at 1 72

– 7 4

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penalties for such violations. S ee, e.g. , 4 9 U.S.C. § 60122(a) (providing for civil penalties up to $200,000 per violation o f the Pipeline Safe t y Act); id. § 60123(a) (providing for

cr i minal liability for k

n owing and w illful v iolations of the Pip e l i n e Safety Act); 16 U .S.C. § 1540(a) (authoriz ing substantial civil pena l ties for violations of the ESA); id. § 1540(b) (creating criminal liability for viol a t ions of the ESA); id. § 1540 (e)(3) (authoriz ing warrantless arrests for violation s o f the ESA). A s in the c ontex t o f the E SA, a “violation ” o f the Pipeline Safety A ct is “most unlikely to refer to failure by the Secretary or o ther federal officers a nd employ e es to perform their duties in administering the [ P i p e line Safety Act] .” S ee Bennett
, 520 U.S. at 1 73. San F rancisco arg ues that while the ESA penalty provisions a pply
to “any violation, ” t h e Pipeline Safety Act’s penalty provisions specify violations that c ould only be committed b y

a reg ulated party , and thus there is no r isk of the implausible result of the Secretary being arrested for failure to p erform her statutory duties. However, there is n o r eason to believe that Cong ress used “violation” to mean a much broader set o f actions in § 60121(a) than it did in those other provisions.

Third, San F rancisco’s permissive reading of § 60121(a) would a brog ate the APA’s “final ag ency action” r equirement
to the same d e gr e e that the plaintiffs’ interpretation of the ESA would have in Bennett

. See 520 U.S. a t 1 7 4

. “Any procedural default

, even one that had n ot y et resulted in a final disposition of the matter at issue, would form the basis for a lawsuit

. ” Id. A s with the ESA, there is no clear statutory d irective militating such a n “ex traordinary r e g ime.” See id.

Our sister circuits’ c a s e s support this construction. F ollowing Bennett
, the F ifth and Tenth Circuits interpreted aC I T Y & C T Y

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citiz en suit provision similar to the o n e a t i s sue here to not allow r eview of ag ency implement at ion of the Outer Continental Shelf L ands Act. Amerada Hess Corp. v. Dep’t of I n terior
, 170 F .3d 1032, 1034–35 (10th Cir. 1 999) (ag reeing with the F ifth Circuit that the citiz en suit provision does not authoriz e suits because they are available under the APA and because such an in t e r pretation would abrog ate the APA); OXY USA, Inc. v. Babbitt

, 1 22 F .3d 251, 258–59 (5th Cir. 1997) (h o l d i n g that the citiz en suit provision d id not apply because it w o u ld provide “a means of obtaining ‘umbrella’ r eview for a ser i es of ag e ncy decisions that were

or will be otherwise subject to judicial review under the APA” and because “neither the tex t n or leg islative history o f [ the A ct] manifests cong ressional intent to repeal the APA”). A recent Six th Circuit decision declined to allow a suit under the citiz en suit provision of the Clean A ir Act when only o ne of the three reasons cited by Bennett was presen t in force. See Sierra Club v. Korleski

, 681 F .3d 342, 34 8

– 5 0 (6th Cir. 2012) (disallowing a citiz en suit ag ainst a state for failure to comply with the CAA on t h e gr o unds that (1) the term “violation” used elsewhere in the CA A i n dicates that it was not meant to i n c l u d e such action; a nd (2) such a broad interpretation of “violatio n ” would be inconsistent with the sanctions reg ime of the CAA).

I n sum, the plain statutory lang uag e, the statutory structu r e , the leg islative history

, the structure of similar federal statutes, and interpre t a t ions of similar statutory provisions by the Supreme Court and our sister circuits lead
to the conclusion that the Pipeline Safety A ct does not authoriz e mandamus-ty

pe citiz en suits ag ainst the Ag ency

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I V

The district court also properly concluded that San F rancisco’s c laims were not c o g n iz able under the A PA. San F rancisco’s amended complaint alle ge d that the Ag ency violated the APA by ( 1) u nlawfully w ithholding the action o f d e c iding whether the CPUC adequately enforces federa l pipeline safety standards, and (2) arbitrarily and capriciously approving t h e CPUC’s certification and providing federal funding to the CPUC.

A

J udicial r ev i e w of ag ency action is not available for decisions that are “ committed to ag e ncy discretion by law.” 5 U.S.C. § 701(a)(2). The Supreme Court has ex plained that

a decision is committed to ag ency discretion by law when “a
court would have no meaning ful stand ar d ag ainst which to judg e the a g ency ’s ex ercise of d iscreti on,” such as “where
statutes a re drawn in such broad terms t h a t in a g iven case there is no law to apply .” H eckler v. Chaney , 470 U.S. 821, 830 (1985) (internal quotation marks omitted).

W h ile this “ n a r r o w ex c e p t i o n ” o n l y o c c u r s i n “ rare instances,” Citizens to P res. O ve r t on Park, Inc. v. Volpe

, 401 U.S. 402, 410 (1971), Heckler carved out a presumption of unreviewability o f an ag ency ’ s decision not to t a k e enforcement action. 470 U.S. a t 8 3 1

. The Court set forth several r easons w h y ag ency e n forcement decisions a re g enerally not suitable for j u d icial r eview: (1) “an ag ency decision not to enforce often involves a c o mplicated balancing of a number of factors which are peculiarly within its ex pertise,” such as a l l o ca tion of resources and ag ency policies and priorities; ( 2) an a ge n cy is better equipped toC I T Y & C T Y

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make that balanci n g t h a n a court; (3) an ag ency ’s refusal to enforce does not implicate p ersonal liberty or property rig hts, which courts are often called on to protect; and ( 4) an ag ency ’s decision not to enforce is analog ous to prosecutorial discretion, an arena in which c ourts have traditionally not interfered. Id. at 831–32. Heckler went on to clarify that the presumption of unreviewability is rebuttable “where the substantive statute has provided g uidelines for the ag ency to follow in ex ercising its enforcement powers.” Id. at 832–33.

Actions committed to ag ency d iscret i o n u n der 5 U .S.C. § 701(a)(2) are not limited to decisions n o t t o e n f orce. The Supreme Court has held that the allocation of f unds from a lump-sum appropriation is another decision that is committed
to ag ency discretion b y law. Lincoln v. Vigil

, 508 U.S. 182, 192 (1993). The Court ex pla i n ed that Cong ress’ appropriation of a lump sum without s t atutory restriction
creates the inference that Cong ress does not intend to impose leg ally binding restrictions o n ag e n c y decisionmaking

, a nd
courts may not review the a llocation of t h o se funds under § 701(a)(2) so long as the ag ency allocates t h e m to meet permissible statutory objectives. Id. at 192–93.

1

Apply ing the principles of Heckler

, the di s t rict court properly determined that the Ag ency ’s decision not to reject the CPUC’s certification was unreviewable under § 701(a)(2) of the AP A

. The Ag ency ’s approval of the CPUC’s annual certification is a decisio n not to enforce, a decision that is presumptively unrev iewable under § 701(a)(2) of the APA. The structure of the Pipeline S a f ety Act supports this conclusion.C I T Y & C T Y

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F irst, § 60105(a) provides that a state assumes jurisdiction over its intrastate p ipelines a utomatically upon submitting a certification. The Ag ency may d ecide to subsequently reject the certification, but b efore doing so it must provide the state authority with notice and an opportunity for a hearing

. 49 U.S.C. § 60105(f). The A g ency “accepts” certifications b y merely d eclining to act. B y providing that “the Secretary may reject [ a] certification,” id. (emphasis added), the statute makes clear that the decision to reject a certifi c a t i on is discretion ar y and therefore will involve balancing a number of considerations, including availability and allocation o f
ag ency resources, the predicted o utcome of any hearing

, a nd

a g ency policies and priorities. The Ag ency recei v e s certifications from o ver fifty state authori t i e s , and must choose where to ex pend its resources in challeng ing a certification and, if it ultimately r ejects one, assuming responsibility for enforcement in that state. I n short, t he Ag ency requires reg ulatory flex ibilit y in deciding how to allocate enforcement resources.

Second, the federalism structure of the Pipeline Saf ety Act favors state assumption of jurisdiction. Manag ement o f this delicate federal-state r elationship was deleg ated b y Cong r ess to the Secretary
, and courts are not institutionally well-equipped to micromanag e it.

Third, the tex t of the statute provides no indication that Cong r ess intend e d to r estrict ag ency d iscretion. W hile the

use of the word “shall” elsewhere in the Pipeline Safety A ct clearly indicates that Con g r e ss had no trouble imposing duties

on the Secretary
, the relevant sections to cert i f i c a tion a re peppered with the c lassic lang uag e of discretion. The Ag ency

“ m a y reject [ a certification] ” “[ i ] f the Secretary decides th e State a uthority is not enforcing satisfactorily compliance withC I T Y & C T Y

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applicable safety standards.” 49 U.S.C. § 60105(f) ( e mpha ses added). W ithout receiving any certification the Secretary

“ may ” also “make an ag reement w ith a State authority ” to assist in en f

o rcing pipeline safety standards. Id. § 60106(a) (emphasis added). T h e Secretary is not even directly r equired
to monitor a state safety p ro gr a m, but she “ may ” (and the State authority “ shall ” c omply if she does so). Id. § 60105(e) (emphases a dded). I n contr a s t t o the intrastate p ipeline
conte x t at stake here, the Pipeline Safety Act makes termination of state oversig ht o f interstate pipelines mandatory in certain circumstances: “The Secretary shall e nd

an ag reement for the oversig ht o f interstate p ipeline transportation if the Secretary finds that

. . . continued participation b y the State authority in the oversig h t o f interstate pipeline transportation would not promote p ipeline safety .” I d. § 60106(e)(2) ( emphasis added). And while “the

mere fact that a statute contains discretionary lang uag e does
not make ag e ncy action unreviewable,” Be no v. Shalala

, 30 F .3d 1057, 1066 (9th Cir. 1994), it cer t a i nly places additional weig ht on that side of the scale. See id. (ex plaining that the a naly sis required by 5 U.S.C. § 701( a ) (2) is statutespecific and discretionary lang uag e has been o ne of several

reasons provided for c oncluding tha t a statutory provision makes an ag ency

action unreviewable).

F or these reasons, we ag ree with the district court that the Ag ency ’s decision not to pu r sue rejection of the CPUC’s

ce r tification is therefore unreviewable u nder § 701(a)(2) o f the APA.

2

The d istrict court also properly concluded that the Ag ency ’s annual g rant of fun d s to the CPUC is a decisionC I T Y & C T Y

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presumptively committed to ag ency discretion, and therefore non-reviewable.

“[ T] he v ery point of a lump-sum appropriation is to g ive

an ag ency the capacity t o a d apt to chang ing circumstances and meet its statutory responsibilities in what it sees a s t he
most e ffective or desirable way

. ” Lincoln

, 508 U

. S

. at 192. F or the Ag ency , that may mean creating incentives for states to improve their re gulatory efforts in targ eted way s, calibrating funding to states to best balance compet ing priorities, or devoting particular resources to state authorities that need the most assistance or a re pioneerin g i n n o vative practices. The Ag ency is “far better equipped than the courts to deal with t h e m any variables involved in the proper ordering of its priorities.” Id. at 193 (q u o t i n g Heckler

, 470 U.S. at 831–32).

“[ C] ourts m ay not use the APA to review an ag e ncy ’s decision to allocate funds absent some statutory constraint on the ag ency ’s discretion.” Los Coyotes B a n d of Cahuilla & Cupeño Indians v. Jewell

, 729 F .3d 1025, 1038 (9th C i r. 2013). The Pipeline Safety Act provides some g uidance to the Secretary in § 60107(a)–(b). Cong r ess demonstrated that it knew how to place definitive restrictions on funding of state

a u t h o rities by stating that the Ag ency may p rovide funds

“ only when the authority ensures

. . . that it will provide the remaining costs” and by limiting the amount of funds to 80% of the a mount reasonably require d by the state prog ram. 49 U.S.C. § 60107(a)–(b) (emphasis added).

The phrase “reasonably requires” in § 60107(a) indicates that Cong ress intended to vest the Ag ency with interpretative discretion. See Helgeson v. Bureau o f Indian A

ffairs

, 1 5 3 F. 3 d 1000 (9th Cir. 1998). I n Helgeson

, we held tha t aC I T Y & C T Y

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decision to reject an I ndian Revolving F und loan a pplication

was unreview able under 5 U .S.C. § 701(a)(2) because the
statute authoriz ing th e B ureau of I n dian Affairs to issue

re v olving loans conditioned the availability of loans on the

ex istence of “a reasonab l e prospect of repay ment,” id. at 1003–04 (q u o ting 25 U .S.C. § 1463). W e concluded that Cong r ess committed the a ssessment of whether that prospect

ex isted to the judg ment o f the ag ency

. I d. I n a rriving at that determination, we also c o nsidered the lang uag e and structure of the authoriz ing statute and the nature of the subject matter. As in that case, where Cong res s used hig hly discretionary lang uag e and the decision involved allocation of financial
resources, the Pipeline Safety Act commits th e d e c ision o f

w h a t is “reasonably required” to carry out a safety prog r a m to the ex p e rtise of the ag ency

.

F inally

, it is sig nificant that San F r ancisco d oes not a rg ue t h a t the Ag ency violated the statutory g uidelines. I t simply d o e s n o t ag ree with the choices the Ag ency made. San F rancisco may well h ave a g ood policy arg u m e nt, but such decisions are committed to ag ency discretion.

B

The district court correctly r ejected San F rancisco’s claim
purs uant to 5 U.S.C. § 7 06(1) that the Ag ency unlawfully withheld making a decision as to the adequacy of the CPUC’s
reg ulation of i n trastate g as pipelines b efore accepting its certification

. The Ag ency characteriz es this claim as a prog r ammatic challeng e to its implementation of the statute. W e ag ree w ith the district court that even if t h e A ge ncy has

some mandatory duty to oversee state enforcement ef f o r ts, Sa n Francisco’s § 706(1) claim is merely a “complaint[ ]

a b o u t the sufficiency of an ag ency action ‘dressed up as a nC I T Y & C T Y

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a ge n c y ’s failure to a ct.’” Ecology Ctr., Inc. v

. U.S. For e s t Serv.
, 192 F

. 3d 922, 926 (9th Cir. 1999). The fail ure to act claim is a repackag ed version of San F rancisco’s challeng e to the Ag ency ’s decision not to pursue rejection of the CPUC’s certification, a close analog to a decision not to enforce. A s

we hav e e x p lained, d e c isions n ot to enforce a re presumptively

unreviewable under 5 U.S.C. § 701(a)(2).

V

San F rancisco has presented very troubling al l e gations about the Ag ency ’s approach to monitor i n g t he CPUC’s

r e gu l a t ion o f intrastate pipelines. However, “[ w] e have no authority to c ompel a g ency action merely because the ag ency is not doing something we may think it should do.” Zixiang Li v. Kerry
, 710 F .3d 995, 1004 (9th Cir. 2013). Neither the Pipeline Safety A ct n or the APA authoriz e San F rancisco’s claims. Therefore, the district court properly dismissed the action. W e need not, a

nd do n ot, reach a n y o t h er arg ument raised by the parties.

AF F IRMED.