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Riverkeeper, Inc. v. Whitman

Citation: 32 ELR 20382
No. No. 93 Civ. 0314(AGS), (S.D.N.Y., 11/27/2001)

The court denies an electric utility and trade association coalition's motion to intervene in mediation leading to and subsequent enforcement of an amended consent decree between the U.S. Environmental Protection Agency (EPA) and an environmental group under which EPA agreed to promulgate Clean Water Act (CWA) §316 regulations requiring cooling water intake structures to utilize the best technology available for minimizing environmental impact. The court first holds that even though the coalition has a protectable interest in the subject matter of the mediation, intervention is not warranted. The coalition's principal contention in support of intervention addresses substantive implications of the timetable specified in the consent decree for promulgation of the cooling water intake regulations. However, the substance of EPA rulemaking is beyond the jurisdiction of the court. If the coalition wants to challenge the CWA §316 regulations, it can do so before the court of appeals following final agency action. The court next holds that the coalition is not entitled to intervention as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. The coalition has actively discussed the proposed regulations with EPA, and such participation will likely continue. Further, the coalition's interests are adequately protected by the participation of existing parties to the action, and the coalition may protect any of its interests in judicial proceedings it has a right to participate in after the issuance of the regulations. The court further holds that the coalition is not entitled to permissive intervention under Rule 24(b)(2) because such intervention would unduly delay and prejudice the adjudication of the environmental group's claims, which are now embodied in the amended consent decree.

The full text of this decision is available from ELR (9 pp., ELR Order No. L-421).

[Counsel not available at this printing.]