Sierra Club v. Browner

No. 93-CV-0564 (D.D.C. June 17, 1993)

The court holds that members of a utility industry group may not intervene under Federal Rule of Civil Procedure 24 in an environmental group's suit to compel the U.S. Environmental Protection Agency (EPA) to promulgate revised standards of performance for NO_x emissions from fossil fueled steam generating units in compliance with Clean Air Act (CAA) § 407(c)(1). The group members seek to intervene only with regard to any rulemaking schedule the court may impose on EPA. The court holds that the group members may not intervene as of right under Federal Rule of Civil Procedure 24(a), because their claim of right is based solely on the chance that their interests may be affected by a timetable that may or may not be imposed. The court is not required to impose any rulemaking schedule on EPA and EPA is not presently deciding the nature or scope of any regulation affecting the proposed intervenors. The court also holds that permissive intervention under Federal Rule of Civil Procedure 24(b) is inappropriate, because although the group members have an interest in the substance of the regulations, they should not be allowed to interfere with EPA's duties under the CAA. Also, there are several alternatives to participation as a named party.

Counsel for Plaintiff
Craig Harrison
Hunton & Williams
2000 Pennsylvania Ave. NW, Ste. 9000, Washington DC 20006
(202) 955-1500

Counsel for Defendants
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[24 ELR 20808]

Johnson, J.:

Memorandum Order

Alabama Power Company et al. ("Movants"), ask the Court for leave to intervene in the above-captioned case. Movants are members of the Utility Air Regulatory Group which was formed for industry participation in the rulemaking proceedings of the Environmental Protection Agency under the Clean Air Act. They request intervention of right or, in the alternative, permissive intervention under Federal Rules of Civil Procedure 24(a) or (b).

The request for intervention is limited to Count Three of the complaint which concerns compliance by the Administrator of the Environmental Protection Agency ("EPA") with a mandatory deadline to propose pollution control regulations. The case involves an alleged violation of § 407(c) of the Clean Air Act which requires:

Not later than January 1, 1993, the Administrator shall propose revised standards of performance to section 7411 of this title for nitrogen oxide emissions from fossil fueled-fired steam generating units, including both electric utility and nonutility units.

The only issues before the Court on Count Three are whether compliance with § 407(c) is a nondiscretionary duty of the EPA under § 304(a)(2) of the Clean Air Act, and whether defendant has failed to comply with the deadline. See Sierra Club v. Thomas, 828 F.2d 783, 791 [17 ELR 21198] (D.C. Cir. 1987) (interpreting § 304(a)(2)). Plaintiff is asking the Court to order the EPA to propose new regulations immediately in compliance with the statutory mandate. Movants want to intervene only on the question of the rulemaking schedule, if any, the Court may impose on the EPA.

Movants claim a right to intervene as an affected industry with interests not adequately represented by present parties. Additionally, they assert an interest in the action because they will be subject to any regulation or timetable adopted by the EPA as a result of this action. However, intervention is neither required as right nor permissively appropriate for judicial economy or fairness in this case.

As stated above, the only issue before the Court is compliance with a mandatory deadline. The Court is not required to impose any rulemaking schedule on the EPA. Furthermore, the EPA is not deciding at this time the nature or scope of any regulation that may be imposed on movants. Therefore, movants claim of right is based solely on the chance that a timetable may be imposed in which case their interests may be affected. Thus, movants have no right to intervene in this statutory schedule, nor in any other proceeding to determine compliance with this schedule. This case is simply an extension of the congressional mandate under the Clean Air Act.

Permissive intervention is also inappropriate in this case. Movants contend that as a nonparty they do not have the right to consent or withhold consent from proposed settlement, participate in consideration of any settlement agreement, or appeal from the judgment. However, movants should not be granted such rights in this case. The EPA is compelled to propose revised pollution regulations according to a legislated timetable. Movants, while they have an interest in the substance of the regulations, should not be allowed to interfere with the congressionally mandated duties of the EPA. As a named party, movants may delay or impede the resolution of this action by representing interests in conflict with the responsibilities of the EPA.

Moreover, there are several alternatives to participation as a named party. Movants have the right to post hoc judicial review of any regulations resulting from this action. They also have the opportunity to submit comments to any proposed consent decree in this case pursuant to § 113(g) of the Clean Air Act. Furthermore, movants can submit their arguments in the form of an amicus curiae brief.¹ While movants believe that participation as amicus is insufficient to protect their interests, it protects the interests of the named parties as well as the interest of the Court in the efficient resolution of this case.

Accordingly, it is this 16th day of June, 1993,

ORDERED that the motion to intervene should be, and hereby is, denied.

1. Plaintiff has stated in the record that it does not object to the Court granting amicus status to Alabama Power Company et al.