City of Rialto v. West Coast Loading Corp.

Majority - Graber, Circuit Judge

No, the availability of judicial review for 'pattern and practice' claims does not extend to Goodrich Corporation's challenge against the EPA's administration of CERCLA unilateral administrative orders when such claims are essentially substantive challenges to a specific UAO, or relate to unripened harms or lack standing for other parties' orders, because CERCLA § 9613(h) limits the timing of judicial review to preserve timely cleanup. The court distinguished McNary v. Haitian Refugee Center, Inc. and Reno v. Catholic Social Services, Inc. (CSS), which allowed 'pattern and practice' claims despite statutory review bars. In McNary, the statutory bar applied only to individual determinations, and judicial review of the agency's procedures was effectively unavailable. The Ninth Circuit distilled two 'guiding principles' from McNary and CSS: (1) whether the claim challenges a 'procedure or policy that is collateral to an alien's substantive eligibility,' for which the 'administrative record is insufficient to provide a basis for meaningful judicial review'; and (2) whether the claim is ripe. Goodrich's allegation that the EPA routinely issues orders beyond its statutory authority (e.g., 'emergency' orders where no emergency exists) is decidedly substantive, not procedural. True procedural challenges confront an agency's methods or procedures and do not depend on the facts of any given individual agency action. Meaningful judicial review is available for such substantive challenges under CERCLA, either before compliance (where a 'sufficient cause' defense can mitigate fines) or after completion (via reimbursement claims, including if the order was arbitrary or unlawful). This is far from the 'practical equivalent of a total denial of judicial review' that characterized McNary. Furthermore, Goodrich lacks standing to challenge other UAOs issued to other PRPs, as it has suffered no concrete harm from those and lacks prudential standing to litigate third-party rights. The relief Goodrich seeks—invalidation of UAO 2003-11—is direct and substantive, similar to the claims in Heckler v. Ringer that McNary distinguished, rather than collateral and procedural. Goodrich's claim that the EPA delays certifying completion of work required by a UAO to thwart judicial review is not ripe. Goodrich, by its own admission, has not yet completed the work for UAO 2003-11. Once Goodrich believes it has completed the work, it can petition the EPA for reimbursement, and if refused, bring an action in federal court, arguing that the EPA’s refusal to certify completion is in error. The EPA's certification is not a prerequisite to a reimbursement suit. Goodrich's allegation that the EPA controls and manipulates the record of decision to prevent meaningful judicial review is a facial challenge to the statute itself, not a 'pattern and practice' claim. The district court had previously rejected Goodrich's facial challenge to the statute on the merits, and Goodrich did not appeal that order. Therefore, the court does not reach that facial challenge here. Accordingly, the district court correctly held that it lacks jurisdiction over Goodrich's entire 'pattern and practice' claim.