Delaware Valley Citizens' Council for Clean Air v. Commonwealth

Nos. 76-2068; 77-619 (E.D. Pa. March 25, 1981)

The district court rules that motions to intervene filed by Pennsylvania state legislators 16 to 18 months after the parties signed a consent decree establishing an auto emissions inspection and maintenance (I/M) program are untimely and therefore must be denied. The Delaware Valley Citizens' Council for Clean Air and the United States filed suit to compel the State of Pennsylvania toestablish a program for the inspection and maintenance of an auto emissions system in Philadelphia and Pittsburgh, as required by § 110(c)(1)(B) of the Clean Air Act. After lengthy negotiations, the parties entered into a consent decree in April 1978, which, as modified, requires the implementation of an I/M program by May 1, 1981. The legislators moved to intervene arguing that the decree deprives them of their right to vote on the I/M program. The court concludes that intervention should not be allowed because (1) opening the decree for reconsideration one-and-one-half years after it was signed would be contrary to the public interest, (2) granting the motion would cause substantial prejudice to the parties to the consent decree and (3) the intervenors cannot convincingly complain of inadequate notice of the case.

Counsel for Plaintiffs
Jerome Balter, James Lenard
Public Interest Law Center
1315 Walnut St., Philadelphia PA 19107
(215) 735-7200

James Sheehan, Ass't U.S. Attorney
3310 U.S. Cthse., 601 Market St., Philadelphia PA 19106
(215) 597-2556

Counsel for Defendants
John M. Hrubovcak, Ass't Attorney General
Office of Chief Counsel
Department of Transportation, Transportation & Safety Bldg., Harrisburg PA 17120
(717) 787-2330

Kenneth Gelburd, Deputy Attorney General
Department of Environmental Resources
9th Floor, Fulton Bldg., P.O. Box 2063, Harrisburg PA 17120
(717) 787-2814

[11 ELR 20953]

Bechtle, J.:

Memorandum and Order

Presently before the Court are two motions to intervene filed many months after the entry of a consent decree. For the reasons discussed below, the motions will be denied as untimely.

The complaints in the two actions consolidated here were filed on July 29, 1976, and February 18, 1977. The respective plaintiffs were the Delaware Valley Citizens' Council for Clean Air ("DVCCA") and the United States. Plaintiffs sought to compel defendants, the Commonwealth of Pennsylvania ("Commonwealth"), the Pennsylvania Department of Transportation ("PennDOT") and the Pennsylvania Department of Environmental Resources ("PennDER"), to establish a program for the inspection and maintenance of automobile emissions systems ("I/M program"). Plaintiffs contended that the creation of such a program was required by regulations promulgated by the United States Environmental Protection Agency ("EPA") pursuant to § 110(c)(1)(B) of the Clean Air Act, 42 U.S.C. § 7210(c)(1)(B). The parties filed motions to dismiss and for summary judgment and engaged in extensive pretrial discovery. After lengthy negotiations, the parties signed a consent decree which was, in turn, approved by the Court on August 29, 1978, and filed the following day.

The consent decree provided that defendants would first seek legislation instituting a "franchise" I/M system, in which the Commonwealth would enter into contracts with individual persons or entities to establish the inspection aspects of the program within a certain grographic area. If such legislation were not enacted by a specified date, PennDOT was to promulgate regulations providing for a "private garage" I/M system, in which the Commonwealth would certify a number of privately owned facilities to perform the inspections.

The Pennsylvania Legislature failed to pass enabling legislation for f franchise system within the required time. Therefore in late 1979, PennDOT proposed regulations which would institute a privately owned garage system. The final regulations were published in the Pennsylvania Bulletin on December 22, 1979. 9 PA. BULL. 4193 (1979). Since then, defendants have taken steps necessary to have the program in full effect in time to meet the amended deadline for the program's implementation — May 1, 1981.

The applicants for intervention are two groups of Pennsylvania state legislators ("legislators"). The first group consists of 20 state senators; the second consists of 17 state representatives. Upon intervention, if successful, both groups intend to move to vacate the consent decree on the ground that the decree deprives them of their rights as legislators to debate and vote on whether to establish in I/M program.

The legislators seek intervention of right under FED. R. CIV. P. 24(a) or, in the alternative, permissive intervention under FED. R. CIV. P. 24(b). In either case, however, FED. R. CIV. P. 24 first requires that the application be timely. See FED. R. CIV. P. 24(a), (b); NAACP v. New York, 413 U.S. 345, 365 (1973); Halderman v. Pennhurst State School & Hospital, 612 F.2d 131, 134 (3d Cir. 1979). The Supreme Court has discussed the timeliness criterion as follows:

Although the point to which the suit has progresed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review.

NAACP v. New York, supra, at 365-366 (footnotes omitted). The Court of Appeals for the Third Circuit has stated three factors for the Court's consideration in determining whether an application is timely: (1) how far the proceedings have gone when the movant seeks to intervene; (2) prejudice which resultant delay might cause to other parties; and, (3) the reason for the delay. Commonwealth of Pennsylvania v. Rizzo, 350 F.2d 501, 506 (3d Cir.), cert. denied sub nom Fire Officers Union v. Pennsylvania, 426 U.S. 921 (1976) (citations omitted).

Turning to the consideration of these factors, the Court first notes that the motions to intervene were filed on April 18, 1980, and June 9, 1980, nearly four years after the suit was commenced and 16 and 18 months, respectively, after the entry of the consent decree.These facts militate strongly against granting the motions. The consent decree itself was only achieved after the parties and the Court had expended great effort in preparing for a possible trial while, at the same time, the parties struggled to reach a basis for compromise. Another district court, under similar circumstances, wrote:

The requirement of timeliness is not without foundation. The interest in expeditious administration of justice does not permit litigation interminably protracted through continuous reopening. A motion to intervene after entry of the decree should therefore be denied in other than the most unusual circumstances.

United States v. Blue Chip Stamp Co., 272 F. Supp. 432, 436 (C.D. Cal. 1967), aff'd sub nom. Thrifty Shoppers Scrip Co. v. United States,389 U.S. 580 (1968). In the Blue Chip case, the district court denied a motion to intervene as untimely where the motion was filed within two months after the entry of the consent decree. See United States v. Blue Chip Stamp Co., supra, at 433. The motions presently before the Court, however, were filed 16 and 18 months, respectively, after the entry of the decree. To open the decree for reconsideration at this late date would be to disregard the public interest in the efficient administration of justice. Only the most compelling circumstances could cause the Court to embark on such a course; no such circumstances have been shown here. See also Commonwealth of Pennsylvania v. Rizzo, supra, at 506 (motion to intervene, filed 5 months after entry of a preliminary injunction, held untimely).

Of equal concern is the prejudice intervention would cause to the original parties. As noted in the Court's statement of the facts, the consent decree was only agreed upon after hard-fought adversary pretrial litigation procedures leading to extensive negotiations. Were the Court to grant the motions to intervene, the consent decree would most certainly have to be scrapped despite the good faith and sincere efforts of the original parties in order to take into account the legislators' present interests. Furthermore, the consent decree embodies a timetable for the implementation of an I/M program. The defendants responsible for the implementation have already taken steps to meet the deadline and the EPA, on its part, has defrayed a substantial portion of the cost. The legislators, were they to become parties in the case, can be expected [11 ELR 20954] to move to vacate the decree. Litigation of such a motion would cause additional expense to all parties and inevitably delay the final implementation of a program to which all the original parties have agreed. By reason of this, the granting of the motion to intervene would cause substantial prejudice to the original parties.

The legislators explain that they did not seek intervention sooner because it was only a few months before the filing of their motions that they became aware, or could reasonably have been expected to become aware, that the existence and implementation of the consent decree would interfere with their legislative prerogatives. Assuming, for the moment, that the decree does somehow interfere with the legislators' rights, the legislators cannot persuasively complain of inadequate notice of the case. In the first place, as the legislators concede, the suit and its objectives were widely publicized, as was the entry of the decree onto the public docket itself. Moreover, exhibits and affidavits accompanying the various answers to the motions to intervene demonstrate that the institution of an I/M program was foreseen and discussed by the respective state legislative bodies. Thus, the legislators had a more than adequate opportunity to be fully apprised of the decree's contents and assess its effect.

Considering the motions to intervene in light of the factors set forth in Commonwealth of Pennsylvania v. Rizzo, supra, the Court concludes that intervention at this time, for the reasons advanced, should not be allowed. An appropriate Order will be entered.

AND NOW TO WIT, this 25th day of March, 1981, for the reasons stated in the Court's foregoing Memorandum, IT IS ORDERED as follows:

1. The motion of applicants Zemprelli et al. to intervene in Civil Action No. 77-619 is hereby denied.

2. The motion of applicants Zemprelli et al. to vacate the consent decree is hereby denied for lack of standing.

3. The motion of applicants Belardi et al. to intervene in Civil Action Nos. 76-2068 and 77-619 is hereby denied.