FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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.

No. 13-15855

D.C. No.

3:12-cv-00711-

RS

OPINION

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, District Judge, Presiding

Argued and Submitted

May 13, 2015—San Francisco, California

Filed July 30, 2015
2 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

Before: Sidney R. Thomas, Chief Judge, John B. Owens,

Circuit Judge, and Anthony J. Battaglia,* District Judge.

Opinion by Chief Judge Thomas

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 Honorable Anthony J. Battaglia, District Judge for the U.S.

District Court for the Southern District of California, sitting by

designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 3

The panel held that San Francisco’s claims – that the

Agency violated the Administrative Procedure Act by

(1) unlawfullywithholding 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.

COUNSEL

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.

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,
4 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

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 complywith 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
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 5

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 onlytwo short subsections describing the Secretary’s
6 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

authority to monitor state safety programs and reject a

certification. They are contained at the end of § 60105,

which lays out the process for states assuming jurisdiction

over intrastate pipelines:

(e) Monitoring.–The Secretary may monitor

a safety program established under this

section to ensure that the program complies

with the certification. A State authority shall

cooperate with the Secretary under this

subsection.

(f) Rejections of certification.–If after

receiving a certification the Secretary decides

the State authority is not enforcing

satisfactorily compliance with applicable

safety standards prescribed under this chapter,

the Secretary may reject the certification,

assert United States Government jurisdiction,

or take other appropriate action to achieve

adequate enforcement. The Secretary shall

give the authority notice and an opportunity

for a hearing before taking final action under

this subsection. When notice is given, the

burden of proof is on the authority to

demonstrate that it is enforcing satisfactorily

compliance with the prescribed standards.

Id. § 60105(e)–(f).

The Pipeline Safety Act also provides for federal funding

to states that assume jurisdiction under § 60105 up to 80% of

the costs reasonably required to carry out the safety program. 

Id. § 60107(a). The Secretary’s authority to provide funding
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 7

is restricted to cases where the state ensures the Secretary that

it will provide the remaining costs of a safety program. Id.

§ 60107(b).

In addition, the Agency may withhold any part of a

payment when it decides that the authority is not carrying out

satisfactorily a safety program. Id. The Agency determines

the percentage (up to the allowable ceiling of 80%) of

funding it will provide to states by combining two equally

weighted metrics: (1) a score assigned to that state’s annual

progress report which must be submitted after certification;

and (2) a score resulting from an annual program evaluation

undertaken by the Agency. 49 C.F.R. § 198.13(b). These

scores reflect an assessment of the state’s policies and

procedures, its inspection practices and capacity, overall

enforcement activity, and other indicia of program

performance. Id. § 198.13(c).

California has participated in this cooperative federalism

scheme for decades. The CPUC has assumed responsibility

for regulating and enforcing a pipeline safety program for

intrastate pipelines and pipeline facilities pursuant to

certification under the Pipeline Safety Act. See Cal. Pub.

Util. Code § 955(b). In 2011, the CPUC received 71%

funding from the Agency as a result of the aggregate scoring

system.

II

This litigation arose in response to the disastrous 2010

natural gas pipeline failure and resulting explosion in San

Bruno, a fatal explosion in 2008 in Rancho Cordova, and a

2011 accident in Cupertino that caused significant property

damage. PG&E owned and operated all three pipelines
8 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

involved in the incidents. The National Transportation and

SafetyBoard (“NTSB”) determined the probable cause of the

San Bruno explosion to be “inadequate quality assurance and

quality control in 1956” (when the pipeline was relocated)

and an “inadequate pipeline integrity management program.” 

Nat’l Transp. SafetyBd., NTSB/PAR-11/01, Pacific Gas and

Electric Company Natural Gas Transmission Popeline

Rupture and Fire, San Bruno, California, Sept. 9, 2010, at xii

(2011), available at http://ntsb.gov/investigations/Accident

Reports/Pages/PAR1101.aspx. The NTSB report also cited

regulatory provisions exempting the ruptured pipeline from

pressure testing requirements, the CPUC’s failure to detect

PG&E’s inadequate safety program, and PG&E’s “flawed

emergency response procedures and delay” as contributory

factors. Id. NTSB’s chairman, joined by two other members,

wrote a concurrence observing that PG&E exploited

weaknesses in a lax system of oversight and that “regulators

. . . placed a blind trust in the companies that they were

charged with overseeing—to the detriment of public safety.” 

Id. at 135.

Citing the “substantial and unnecessary risk” posed to its

citizens’ lives and property by allegedly inadequate

monitoring and regulation, San Francisco sued the Agency

and the United States Department of Transportation. 

Invoking the Pipeline Safety Act’s citizen suit provision, San

Francisco sought declaratory and injunctive relief to compel

the Agency to comply with its duties under the Pipeline

Safety Act.

After holding that San Francisco met constitutional

standing requirements to bring a claim, the district court

dismissed the suit with leave to amend because the claim was

not cognizable under the Pipeline Safety Act’s citizen suit
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 9

provision. The court explained that “while § 60121 would

authorize a suit against government entities to the extent they

engage in activities regulated by the [Pipeline Safety

Act]—such as constructing or operating pipelines—it is not

an appropriate vehicle for seekingmandamus relief regarding

defendants’ performance of their regulatory obligations.”

San Francisco amended its complaint to include claims

under the APA, arguing that the Agency’s approval of the

CPUC’s certificationwas arbitraryand capricious in violation

of 5 U.S.C. § 706(2)(A) and also constituted a failure to act

under 5 U.S.C. § 706(1). The district court dismissed the

Amended Complaint for failing to state a claim and lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)(6) and Fed. R. Civ. P. 12(b)(1). The court reasoned

that San Francisco’s failure to act claim was in essence a

challenge to the sufficiency of the Agency’s action, not a

genuine inaction claim. The court then characterized San

Francisco’s § 706(2)(A) claim as “coextensive” and

dismissed it as well.

We have jurisdiction over the district court’s entryof final

judgment pursuant to 28 U.S.C. § 1291, and we review the

district court’s dismissal de novo. Lacey v. Maricopa Cnty.,

693 F.3d 896, 911 (9th Cir. 2012) (en banc); Ctr. for Policy

Analysis on Trade & Health v. Office of the U.S. Trade

Representative, 540 F.3d 940, 944 (9th Cir. 2008).

III

The district court properly concluded that the Pipeline

Safety Act’s citizen suit provision does not allow mandamustype actions against the Agency in its capacity as regulator.
10 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

When examining the scope of a private right of action

under a federal statute, we employ the usual tools of statutory

construction, looking first at the plain words of the statute,

“particularly to the provisions made therein for enforcement

and relief.” Middlesex Cnty. Sewerage Auth. v. Nat’l Sea

Clammers Ass'n, 453 U.S. 1, 13 (1981). “[W]hen deciding

whether the language is plain, we must read the words ‘in

their context and with a view to their place in the overall

statutory scheme.’” King v. Burwell, __ U.S. __, 135 S. Ct.

2480 (2015) (quoting FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000)). In addition, we examine

the legislative history, the statutory structure, and “other

traditional aids of statutory interpretation” in order to

ascertain congressional intent. Middlesex Cnty., 453 U.S. at

13. As part of statutory analysis, “[w]e also look to similar

provisions within the statute as a whole and the language of

related or similar statutes to aid in interpretation.” United

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

The Pipeline Safety Act, by its plain language, allows

only a very limited private right of action. It permits

injunctive citizen suits against the United States or other

entities “for a violation of this chapter or a regulation

prescribed or order issued under this chapter.” 49 U.S.C.

§ 60121(a). In other words, private citizen suits are

authorized for substantive statutory or regulatory violations. 

By its terms, the provision does not authorize a mandamustype action to compel the Agency to perform nondiscretionary regulatory duties.

The statutory structure supports the conclusion. Indeed,

mandamus actions are authorized as part of the Pipeline

Safety Act’s whistleblower protection provisions. 49 U.S.C.

§ 60129(c). The inclusion of such a remedy in another
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 11

portion of the statute indicates that Congress was aware of the

remedy and how to create it. The fact that Congress chose

not to include a mandamus-type remedy in its citizen suit

provision is significant. “[W]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S.

16, 23 (1983) (alteration in original).

The Pipeline SafetyAct’s legislative historybuttresses the

conclusion that Congress did not intend to create a citizen suit

mandamus remedy, emphasizing that the citizen suit

provision “would not supplant the Secretary’s efforts for

enforcement and compliance,” but was “designed to assist the

Department in its enforcement and compliance activities.” S.

Rep. No. 94-852, at 8 (1976). San Francisco points to a floor

statement by a single legislator tangentially suggesting the

possibility of mandamus-type actions to enforce federal

regulations. See 122 Cong. Rec. 32,725 (1976) (statement of

Rep. Brown). However, as the Agency points out, there were

no similar statements from other lawmakers or any further

discussion of the possibilityofmandamus-type actions, which

suggests that the cited statement was merely “a single

outlying statement” that must not be dispositive. See Gen.

Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599 (2004);

see also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979)

(“The remarks of a single legislator, even the sponsor, are not

controlling in analyzing legislative history.”).

Examination of the statutory language of similar statutes

also bolsters the conclusion that the Pipeline Safety Act does

not authorize mandamus actions against the Agency. Of

significance here is the statutory language of citizen suit
12 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

provisions in similar statutes enacted during the same time

period as the Pipeline Safety Act. Those statutes tend to

include two separate citizen suit provisions: one that provides

for suits alleging a violation of a statute’s substantive

provisions, and one that authorizes suits against the agency

head for failing to perform a nondiscretionary duty. See, e.g.,

16 U.S.C. § 1540(g)(1)(B)–(C) (Endangered Species Act);

42 U.S.C. § 7604(a)(1)–(2) (Clean Air Act). The latter type

of provision, which specifically provides for mandamus

relief, is conspicuously absent from the Pipeline Safety Act.

The Supreme Court has interpreted a very similar citizen

suit provision in the Endangered Species Act (“ESA”) as not

authorizing suits against an agency alleging improper

implementation of a statute. In Bennett v. Spear, 520 U.S.

154, 173 (1997), the Court held that “the term ‘violation’

does not include the Secretary’s failure to perform his duties

as administrator of the ESA.” The district court in this case

relied heavily on Bennett in holding that the Pipeline Safety

Act’s citizen suit provision, like the similarly-worded

provision at stake in Bennett, only provides for suits against

the government in its capacity as a regulated party.

San Francisco attempts to distinguish Bennett bypointing

out that, unlike under the ESA, the federal government is not

subject to the Pipeline SafetyAct’s substantive requirements. 

See 49 U.S.C. §§ 60101(a)(17), 60108, 60117, 60118(a)(1). 

Furthermore, it argues, Bennett reflects the Court’s need to

harmonize two side-by-side citizen suit provisions. See

520 U.S. at 173 (explaining that allowing suits under

16 U.S.C. § 1540(g)(1)(A) for any violation of the ESA

would render § 1540(g)(1)(C) a nullity).
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 13

However, Bennett itself approached the question by

looking to the statute as a whole. 520 U.S. at 174. Doing so

here, the arguments in support of the district court’s

application of Bennett to the Pipeline Safety Act outweigh

those against it. All three reasons cited by the Bennett Court

support the district court’s conclusion.1

First, San Francisco’s argument that the provision

authorizing mandamus relief in the Pipeline Safety Act’s

whistleblower protection section, 49 U.S.C. § 60129(c), need

not be harmonized with the citizen suit provision, id.

§ 60121(a), is not persuasive. While the proximity of the two

citizen suit provisions in the ESA may have reinforced the

need to read them in complementary fashion, the mere fact

that the mandamus provision in the Pipeline Safety Act is

eight sections removed from the general citizen suit provision

does not mean that they need not be read together as part of

a comprehensive statutory scheme. The inclusion of

§ 60129(c) indicates that Congress was well aware of its

ability to specifically authorize mandamus suits against the

Secretary.

Second, the use of “violation” in § 60121(a) also supports

the district court’s conclusion. Elsewhere in the Pipeline

Safety Act, “violation” consistently and exclusively refers to

substantive violations by regulated parties. Like the ESA, the

Pipeline SafetyAct provides for substantial civil and criminal

1 The Court in Bennett explained that (1) the two citizen suit provisions

must be read compatibly with each other; (2) the use of the term

“violation” elsewhere in the statute indicates it was meant to cover only

the behavior of regulated parties; and (3) a broad reading of “violation” to

include any maladministration of the statute would abrogate the APA’s

final agency action requirement. 520 U.S. at 172–74.
14 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

penalties for such violations. See, e.g., 49 U.S.C. § 60122(a)

(providing for civil penalties up to $200,000 per violation of

the Pipeline Safety Act); id. § 60123(a) (providing for

criminal liability for knowing and willful violations of the

Pipeline Safety Act); 16 U.S.C. § 1540(a) (authorizing

substantial civil penalties for violations of the ESA); id.

§ 1540(b) (creating criminal liability for violations of the

ESA); id. § 1540(e)(3) (authorizing warrantless arrests for

violations of the ESA). As in the context of the ESA, a

“violation” of the Pipeline Safety Act is “most unlikely to

refer to failure by the Secretary or other federal officers and

employees to perform their duties in administering the

[Pipeline Safety Act].” See Bennett, 520 U.S. at 173. San

Francisco argues that while the ESA penalty provisions apply

to “any violation,” the Pipeline Safety Act’s penalty

provisions specify violations that could only be committed by

a regulated party, and thus there is no risk of the implausible

result of the Secretary being arrested for failure to perform

her statutory duties. However, there is no reason to believe

that Congress used “violation” to mean a much broader set of

actions in § 60121(a) than it did in those other provisions.

Third, San Francisco’s permissive reading of § 60121(a)

would abrogate the APA’s “final agency action” requirement

to the same degree that the plaintiffs’ interpretation of the

ESA would have in Bennett. See 520 U.S. at 174. “Any

procedural default, even one that had not yet resulted in a

final disposition of the matter at issue, would form the basis

for a lawsuit.” Id. As with the ESA, there is no clear

statutory directive militating such an “extraordinary regime.” 

See id.

Our sister circuits’ cases support this construction. 

Following Bennett, the Fifth and Tenth Circuits interpreted a
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 15

citizen suit provision similar to the one at issue here to not

allow review of agency implementation of the Outer

Continental Shelf Lands Act. Amerada Hess Corp. v. Dep’t

of Interior, 170 F.3d 1032, 1034–35 (10th Cir. 1999)

(agreeing with the Fifth Circuit that the citizen suit provision

does not authorize suits because they are available under the

APA and because such an interpretation would abrogate the

APA); OXY USA, Inc. v. Babbitt, 122 F.3d 251, 258–59 (5th

Cir. 1997) (holding that the citizen suit provision did not

apply because it would provide “a means of obtaining

‘umbrella’ review for a series of agency decisions that were

or will be otherwise subject to judicial review under the

APA” and because “neither the text nor legislative history of

[the Act] manifests congressional intent to repeal the APA”). 

A recent Sixth Circuit decision declined to allow a suit under

the citizen suit provision of the Clean Air Act when only one

of the three reasons cited by Bennett was present in force. 

See Sierra Club v. Korleski, 681 F.3d 342, 348–50 (6th Cir.

2012) (disallowing a citizen suit against a state for failure to

comply with the CAA on the grounds that (1) the term

“violation” used elsewhere in the CAA indicates that it was

not meant to include such action; and (2) such a broad

interpretation of “violation” would be inconsistent with the

sanctions regime of the CAA).

In sum, 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 our sister circuits lead

to the conclusion that the Pipeline Safety Act does not

authorize mandamus-type citizen suits against the Agency.
16 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

IV

The district court also properly concluded that San

Francisco’s claims were not cognizable under the APA. San

Francisco’s amended complaint alleged that the Agency

violated the APA by (1) unlawfully withholding the action of

deciding whether the CPUC adequately enforces federal

pipeline safety standards, and (2) arbitrarily and capriciously

approving the CPUC’s certification and providing federal

funding to the CPUC.

A

Judicial review of agency action is not available for

decisions that are “committed to agency discretion by law.” 

5 U.S.C. § 701(a)(2). The Supreme Court has explained that

a decision is committed to agency discretion by law when “a

court would have no meaningful standard against which to

judge the agency’s exercise of discretion,” such as “where

statutes are drawn in such broad terms that in a given case

there is no law to apply.” Heckler v. Chaney, 470 U.S. 821,

830 (1985) (internal quotation marks omitted).

While this “narrow exception” only occurs in “rare

instances,” Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 410 (1971), Heckler carved out a presumption

of unreviewability of an agency’s decision not to take

enforcement action. 470 U.S. at 831. The Court set forth

several reasons why agency enforcement decisions are

generally not suitable for judicial review: (1) “an agency

decision not to enforce often involves a complicated

balancing of a number of factors which are peculiarly within

its expertise,” such as allocation of resources and agency

policies and priorities; (2) an agency is better equipped to
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 17

make that balancing than a court; (3) an agency’s refusal to

enforce does not implicate personal liberty or property rights,

which courts are often called on to protect; and (4) an

agency’s decision not to enforce is analogous to prosecutorial

discretion, an arena in which courts 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 guidelines for the agency to

follow in exercising its enforcement powers.” Id. at 832–33.

Actions committed to agency discretion under 5 U.S.C.

§ 701(a)(2) are not limited to decisions not to enforce. The

Supreme Court has held that the allocation of funds from a

lump-sum appropriation is another decision that is committed

to agency discretion by law. Lincoln v. Vigil, 508 U.S. 182,

192 (1993). The Court explained that Congress’

appropriation of a lump sum without statutory restriction

creates the inference that Congress does not intend to impose

legally binding restrictions on agency decisionmaking, and

courts may not review the allocation of those funds under

§ 701(a)(2) so long as the agency allocates them to meet

permissible statutory objectives. Id. at 192–93.

1

Applying the principles of Heckler, the district court

properly determined that the Agency’s decision not to reject

the CPUC’s certification was unreviewable under § 701(a)(2)

of the APA. The Agency’s approval of the CPUC’s annual

certification is a decision not to enforce, a decision that is

presumptively unreviewable under § 701(a)(2) of the APA. 

The structure of the Pipeline Safety Act supports this

conclusion.
18 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

First, § 60105(a) provides that a state assumes jurisdiction

over its intrastate pipelines automatically upon submitting a

certification. The Agency may decide to subsequently reject

the certification, but before doing so it must provide the state

authority with notice and an opportunity for a hearing.

49 U.S.C. § 60105(f). The Agency “accepts” certifications by

merely declining to act. By providing that “the Secretarymay

reject [a] certification,” id. (emphasis added), the statute

makes clear that the decision to reject a certification is

discretionary and therefore will involve balancing a number

of considerations, including availability and allocation of

agency resources, the predicted outcome of any hearing, and

agency policies and priorities. The Agency receives

certifications from over fifty state authorities, and must

choose where to expend its resources in challenging a

certification and, if it ultimately rejects one, assuming

responsibility for enforcement in that state. In short, the

Agency requires regulatory flexibility in deciding how to

allocate enforcement resources.

Second, the federalism structure of the Pipeline Safety

Act favors state assumption of jurisdiction. Management of

this delicate federal-state relationship was delegated by

Congress to the Secretary, and courts are not institutionally

well-equipped to micromanage it.

Third, the text of the statute provides no indication that

Congress intended to restrict agency discretion. While the

use of the word “shall” elsewhere in the Pipeline Safety Act

clearlyindicates that Congress had no trouble imposing duties

on the Secretary, the relevant sections to certification are

peppered with the classic language of discretion. The Agency

“may reject [a certification]” “[i]f the Secretary decides the

State authority is not enforcing satisfactorily compliance with
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 19

applicable safetystandards.” 49 U.S.C. § 60105(f) (emphases

added). Without receiving any certification the Secretary

“may” also “make an agreement with a State authority” to

assist in enforcing pipeline safety standards. Id. § 60106(a)

(emphasis added). The Secretaryis not even directly required

to monitor a state safety program, but she “may” (and the

State authority “shall” comply if she does so). Id. § 60105(e)

(emphases added). In contrast to the intrastate pipeline

context at stake here, the Pipeline Safety Act makes

termination of state oversight of interstate pipelines

mandatory in certain circumstances: “The Secretary shall end

an agreement for the oversight of interstate pipeline

transportation if the Secretary finds that . . . continued

participation by the State authority in the oversight of

interstate pipeline transportation would not promote pipeline

safety.” Id. § 60106(e)(2) (emphasis added). And while “the

mere fact that a statute contains discretionary language does

not make agency action unreviewable,” Beno v. Shalala,

30 F.3d 1057, 1066 (9th Cir. 1994), it certainly places

additional weight on that side of the scale. See id. (explaining

that the analysis required by 5 U.S.C. § 701(a)(2) is statutespecific and discretionary language has been one of several

reasons provided for concluding that a statutory provision

makes an agency action unreviewable).

For these reasons, we agree with the district court that the

Agency’s decision not to pursue rejection of the CPUC’s

certification is therefore unreviewable under § 701(a)(2) of

the APA.

2

The district court also properly concluded that the

Agency’s annual grant of funds to the CPUC is a decision
20 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

presumptively committed to agency discretion, and therefore

non-reviewable.

“[T]he very point of a lump-sum appropriation is to give

an agency the capacity to adapt to changing circumstances

and meet its statutory responsibilities in what it sees as the

most effective or desirable way.” Lincoln, 508 U.S. at 192.

For the Agency, that may mean creating incentives for states

to improve their regulatory efforts in targeted ways,

calibrating funding to states to best balance competing

priorities, or devoting particular resources to state authorities

that need the most assistance or are pioneering innovative

practices. The Agency is “far better equipped than the courts

to deal with the many variables involved in the proper

ordering of its priorities.” Id. at 193 (quoting Heckler,

470 U.S. at 831–32).

“[C]ourts may not use the APA to review an agency’s

decision to allocate funds absent some statutory constraint on

the agency’s discretion.” Los Coyotes Band of Cahuilla &

Cupeño Indians v. Jewell, 729 F.3d 1025, 1038 (9th Cir.

2013). The Pipeline Safety Act provides some guidance to

the Secretary in § 60107(a)–(b). Congress demonstrated that

it knew how to place definitive restrictions on funding of state

authorities by stating that the Agency may provide funds

“only when the authority ensures . . . that it will provide the

remaining costs” and by limiting the amount of funds to 80%

of the amount reasonably required by the state program. 

49 U.S.C. § 60107(a)–(b) (emphasis added).

The phrase “reasonably requires” in § 60107(a) indicates

that Congress intended to vest the Agency with interpretative

discretion. See Helgeson v. Bureau of Indian Affairs,

153 F.3d 1000 (9th Cir. 1998). In Helgeson, we held that a
CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T. 21

decision to reject an Indian Revolving Fund loan application

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

statute authorizing the Bureau of Indian Affairs to issue

revolving loans conditioned the availability of loans on the

existence of “a reasonable prospect of repayment,” id. at

1003–04 (quoting 25 U.S.C. § 1463). We concluded that

Congress committed the assessment of whether that prospect

existed to the judgment of the agency. Id. In arriving at that

determination, we also considered the language and structure

of the authorizing statute and the nature of the subject matter. 

As in that case, where Congress used highly discretionary

language and the decision involved allocation of financial

resources, the Pipeline Safety Act commits the decision of

what is “reasonably required” to carry out a safety program

to the expertise of the agency.

Finally, it is significant that San Francisco does not argue

that the Agency violated the statutory guidelines. It simply

does not agree with the choices the Agency made. San

Francisco may well have a good policy argument, but such

decisions are committed to agency discretion.

B

The district court correctlyrejected San Francisco’s claim

pursuant to 5 U.S.C. § 706(1) that the Agency unlawfully

withheld making a decision as to the adequacy of the CPUC’s

regulation of intrastate gas pipelines before accepting its

certification. The Agency characterizes this claim as a

programmatic challenge to its implementation of the statute. 

We agree with the district court that even if the Agency has

some mandatory duty to oversee state enforcement efforts,

San Francisco’s § 706(1) claim is merely a “complaint[]

about the sufficiency of an agency action ‘dressed up as an
22 CITY & CTY. OF SAN FRANCISCO V. U.S. D.O.T.

agency’s failure to act.’” Ecology Ctr., Inc. v. U.S. Forest

Serv., 192 F.3d 922, 926 (9th Cir. 1999). The failure to act

claim is a repackaged version of San Francisco’s challenge to

the Agency’s decision not to pursue rejection of the CPUC’s

certification, a close analog to a decision not to enforce. As

we have explained, decisions not to enforce are

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

V

San Francisco has presented very troubling allegations

about the Agency’s approach to monitoring the CPUC’s

regulation of intrastate pipelines. However, “[w]e have no

authority to compel agency action merely because the agency

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 Act nor the APA authorize San Francisco’s

claims. Therefore, the district court properly dismissed the

action. We need not, and do not, reach any other argument

raised by the parties.

AFFIRMED.