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Cronin v. Browner

ELR Citation: 26 ELR 20318
Nos. No. 93 Civ. 0314, 898 F. Supp. 1052/41 ERC 1868/(S.D.N.Y., 07/24/1995) Intervention of trade associations denied

The court holds that electric utilities and their trade associations may not intervene in a Federal Water Pollution Control Act (FWPCA) citizen suit that seeks to compel the U.S. Environmental Protection Agency (EPA) to perform issue regulations under FWPCA §316(b) regarding cooling water intake structures. The court also holds that a proposed consent decree between environmental groups and EPA setting forth a timetable within which EPA must either issue regulations regarding the environmental impact of cooling water intake structures or determine not to issue such regulations, furthers the FWPCA's objectives and is entitled to a presumption in favor of settlement. Section 316(b) governs the location, design, construction, and capacity of existing and new cooling water intake structures. The court first holds that it has subject matter jurisdiction to enter the proposed decree, because the groups' allegations that EPA has failed to fulfill its duty is sufficiently substantial to support judicial jurisdiction necessary to evaluate the consent decree. The court next holds that EPA's duties under §316(b) are mandatory and enforceable in district court, because the time limits in FWPCA §§301 and 306 govern EPA's duty to take action under §316(b). Section 316(b) explicitly references §§301 and 306, which contain specific deadlines for the issuance of effluent limitations guidelines and new source performance standards. The issuance of a regulation under §316(b) constitutes the issuance of an "other limitation" under §§301 and 306. The court rejects the proposed intervenors' argument that §316(b) could only be implemented through §§301 and 306, and not through a regulation. The decision to implement §316(b) through such a regulation is permissible and is a reasonable construction of the statutory provision that is entitled to deference.

The court holds that the proposed intervenors may not intervene to challenge the proposed consent decree, because the decree does not impair any of the legally protectable interests the proposed intervenors might have in this action. Moreover, they have not shown that their views will not be taken into account in the administrative process set forth in the proposed consent decree, that their interests will be prejudiced as a result of the regulatory timetable, or that the decree obligates EPA to issue certain substantive regulations. Moreover, the decree's procedural provisions do not impair the proposed intervenors' interests, and no substantive aspect of the proposed consent decree would, except in the most speculative of circumstances, impair their interests. The court notes that its conclusion is supported by the prejudice and delay that would accrue to the original parties in this action were intervention permitted. Finally, the court holds that the proposed consent decree passes muster and is entitled to the presumption in favor of settlement. The decree furthers the Act's objectives and the particular provisions implicated. Further, the court need not address the merits of the litigation before approving the settlement, because to do so would be contrary to the fundamental purpose of settlements.

Counsel for Plaintiffs
P. Kent Correll
Dolgenos, Newman & Cronin
101 Wooster St., New York NY 10012
(212) 925-2800

Counsel for Defendant
Scott J. Jordan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000