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California Dump Truck Owners Association v. Mary D. Nichols; Chairperson of the


May 20, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff California Dump Truck Owners Association ("Plaintiff") initiated this action against the Chairperson and the Executive Officer of California's Air Resources Board (hereafter collectively the "ARB") seeking to enjoin enforcement of the ARB's Truck and Bus Regulation ("Regulation") on the basis it is preempted by federal law.

Presently before the Court is a Motion to Intervene ("Motion") filed by the Natural Resources Defense Council, Inc. ("NRDC"). For the following reasons, the NRDC's Motion is GRANTED.*fn1


The Regulation, which is formally entitled "Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants from In-Use Heavy-Duty Disel-Fueled Vhicles," 13 California Code of Regulations § 2025, sets fuel emission standards for heavy-duty, diesel-fueled vehicles driven on or designed to be driven on public highways and is intended to reduce vehicle emissions. Plaintiff's First Amended Complaint, ¶ 4. The Regulation is expected to drastically reduce fuel emissions and to positively affect the health of California's citizens. Motion, 3:1-16.

The NRDC's organizational purpose "is to protect the environment and public health, including the environment and health of its members." Id., 6:11-13. It is a national nonprofit organization with more than 400,000 members nationwide and more than 70,000 California members. Id., 6:9-16. According to the NRDC, many of its California members reside "near transportation corridors where vehicles covered by the Regulation will travel." Id., 6:15-16.

While all NRDC members benefit from the Regulation's anticipated reduction in vehicle emissions, and from the consequent reduction in health risks, those members living near impacted freeways are significantly affected by the rule. Id., 6:17-21. The NRDC thus contends that, if Plaintiff is successful in its claims, "NRDC's efforts to reduce diesel emissions across the state will be significantly impaired and the health benefits of the Regulation will be lost." Id., 7:23-8:1.

As part of the NRDC's efforts, it spent over two years actively advocating passage of the Regulation. Id., 3:17-21. More specifically, the "NRDC attended meetings with [ARB] staff to help develop the Regulation, provided written comments to [ARB] advocating that the Board strengthen the Regulation, participated in public workshops on the Regulation, and testified before [ARB] at the public hearing urging adoption of the Regulation." Id., 3:18-21.

"During the rulemaking process, NRDC disagreed with [ARB] over many aspects of the Regulation, with NRDC advocating for more stringent controls." Id., 9:1-3. Moreover, despite the NRDC's objections, the ARB amended the Regulation in December 2010, weakening compliance provisions and delaying the implementation schedule for some requirements. Id., 9:3-6. Even during the course of this still-new litigation, the NRDC has taken issue with the ARB's defense of the rule, pointing to statements in the ARB's Answer as evidence of the ARB's willingness to amend the Regulation even further to appease Plaintiffs.

Reply, 11:16-12:3 (quoting ARB's Answer, ¶ 27 ("Plaintiff's claim will soon be moot because the [ARB] is presently considering amending the regulation at issue to make it less stringent for dump trucks and other heavy duty trucks and buses.")). The NRDC and the ARB have thus been at odds over the Regulation on a number of occasions. Motion, 9:9-10.

The NRDC now argues that it should be allowed to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2).*fn2 Alternatively, Plaintiffs seek permissive intervention under the provisions of Rule 24(b).

Plaintiff opposes the NRDC's Motion, though the ARB does not. According to Plaintiff, its suit presents only a "binary" question: "either the regulation is preempted or it is not." Opposition, 2:5. Plaintiff thus argues that the NRDC will unlikely be able to contribute anything meaningful to this litigation because the law on preemption is settled, the relevant facts are likely to be undisputed and settlement is unlikely.

Id., 2:8-12.


A. Intervention as of Right

An intervenor as a matter of right must meet all requirements of Rule 24(a)(2) by showing:

(1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant's interest.

In evaluating whether these requirements are met, courts "are guided primarily by practical and equitable considerations." Further, courts generally "construe [the Rule] broadly in favor of proposed intervenors." "'A liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts. By allowing parties with a practical interest in the outcome of a particular case to intervene, we often prevent or simplify future litigation involving related issues; at the same time, we allow an additional interested party to express its views before the court.'"

United States v. City of Los Angeles, 288 F.3d 391, 397-98 (9th Cir. 2002) (citations omitted).

In its Opposition, Plaintiff challenges only whether the NRDC has a significantly protectable interest related to the litigation and whether, absent intervention, the ARB will adequately represent the NRDC's interests. Each of the aforementioned requirements articulated in Rule 24(a)(2) will nonetheless be addressed in turn below.

1. NRDC's application to intervene is timely.

Three facts must be evaluated to determine whether a motion to intervene is timely:

(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay. Delay is measured from the date the proposed intervenor should have been aware that its interests would no longer be protected adequately by the parties, not the date it learned of the litigation.

United States v. State of Washington, 86 F.3d 1499, 1503 (9th Cir. 1996) (internal citations omitted). "Timeliness is to be determined from all the circumstances" in the court's "sound discretion". NAACP v. New York, 413 U.S. 345, 366 (1973).

Plaintiff does not dispute the timeliness of the NRDC's request. Plaintiff filed its case in February, amended its complaint at the beginning of April and no substantive proceedings have been had. The NRDC's Motion is therefore timely.

2. The NRDC has a significant protectable interest related to the subject matter of this litigation.

A proposed intervenor has "a 'significant protectable interest' in [the] action if (1) [it asserts] an interest that is protected under some law, and (2) there is a 'relationship' between [that] legally protected interest and the plaintiff's claims." City of Los Angeles, 288 F.3d at 398 (quoting Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). "The 'interest' test is not a clear-cut or bright-line rule, because '[n]o specific legal or equitable interest need be established.'" Id. (quoting Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993)). Under the interest test courts are required "to make a 'practical, threshold inquiry,' to discern whether allowing intervention would be 'compatible with efficiency and due process." Id. (citations omitted).

An applicant may satisfy the requirement of a "significant protectable interest" if resolution of the plaintiff's claims will affect the applicant for intervention. Montana v. United States Envtl. Protection Agency, 137 F.3d 1135, 1141-42 (9th Cir. 1998). A "significant protectable interest" exists if the applicant asserts an interest protected by law and there is a "relationship" between that interest and the plaintiff's claims. Donnelly, 159 F.3d at 409. The requisite interest need not be direct as long as it may be impaired by the outcome of the litigation. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135-36 (1967).

The NRDC cites two protectable interests as the basis for its intervention: 1) its members' interests in reducing the public health impacts of diesel emissions in California; and 2) its interests in upholding regulations the adoption of which they actively advocated.

First, the NRDC argues that numerous of its California members live near transportation corridors where vehicles covered by the Regulation travel. These members will be affected the most by the localized increase in emissions that will result from a finding that the regulation is preempted.

In addition, the NRDC points out that it worked with the ARB for over two years to develop the Regulation, and that the NRDC advocated both the Regulation's adoption and strengthening. The NRDC attended meetings with ARB staff, provided written comments, participated in public workshops and testified before ARB to urge adoption of the Regulation.

Both of the NRDC's articulated interests are sufficient to support intervention. To reiterate, the NRDC is not obligated to identify a "specific legal or equitable interest." It is enough that the NRDC members benefit from the challenged legislation by way of improved air quality and health. See Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1189-90 (9th Cir. 1998) (union permitted to intervene in suit challenging state prevailing wage laws because union members had a significant interest in receiving those wages). Even if that were not the case, however, the NRDC's interests are protected under numerous federal and state statutes, such as the Clean Air Act, 42 U.S.C. § 7401(b), the California Health and Safety Code §§ 39000-01, and the Regulation itself. In addition, a public interest organization has a significantly protectable interest in defending legislation it supported. Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995) ("A public interest group is entitled as a matter of right to intervene in an action challenging the legality of a measure it has supported."); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir. 1983). As such, the Court concludes here that a significant protectable interest has been demonstrated.

3. matter, impair or impede the NRDC's ability to Disposition of this matter, may, as a practical protect its interests.

According to the NRDC, a decision in Plaintiff's favor would impair the NRDC's ability to protect its and its members' interests in reducing the public health impacts of diesel emissions in California as well as its interests in upholding regulations the adoption of which they actively advocated. Because of their proximity to highway corridors, some NRDC members will suffer direct and immediate health consequences from a ban on the enforcement of the Regulation's emissions reduction standards. Finally, a decision for Plaintiff will undermine the NRDC's advocacy efforts in supporting the passage of the Regulation over the last several years. As the NRDC points out, if the Regulation is struck down, it cannot "simply turn around and adopt a similar regulation the next day that would result in the same level of emissions reductions sorely needed for the state to meet federal air quality standards." Reply, 5:17-19. Consequently, this threshold requirement for intervention is also satisfied.

4. NRDC's interests.

Existing parties may not adequately protect the

When determining whether a proposed intervenor's interests are adequately represented, the following factors are considered:

(1) whether the interest of a present party is such that it will undoubtedly make all the intervenor's arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that such other parties would neglect.

City of Los Angeles, 288 F.3d at 398 (citations omitted).

The burden of showing that existing parties may inadequately represent the NRDC's interests is a minimal one. As noted by the Supreme Court, all the applicant needs to show is that "the representation of [its] interest 'may be' inadequate." Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972). Any doubt as to whether the existing parties will adequately represent the intervenor should be resolved in favor of intervention. Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).

"The most important factor in determining the adequacy of representation is how the interest compares with the interests of existing parties. When an applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy arises. If the applicant's interest is identical to that of one of the present parties, a compelling showing should be required to demonstrate inadequate representation. There is also an assumption of adequacy when the government is acting on behalf of a constituency that it represents. In the absence of a very compelling showing to the contrary, it will be presumed that a state adequately represents its citizens when the applicant shares the same interest." Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (internal citations and quotations omitted).

While the NRDC and the ARB may share the same "ultimate objective," namely defending the regulation against Plaintiff's preemption argument, the parties' interests are neither "identical" nor "the same." See Sw. Ctr for Biological Diversity v. Berg, 268 F.3d 810, 823 (9th Cir. 2001) (presumption of adequacy can be overcome by showing the parties "do not have sufficiently congruent interests"). In fact, their interests are not only different, they are in some respects adverse. The ARB is a public agency that must balance relevant environmental and health interests with competing resource constraints and the interests of various constituencies (including Plaintiff's), interests that can be, and here are, at odds with the NRDC's interests. Indeed, the ARB's mission is to "promote and protect public health, welfare and ecological resources through the effective and efficient reduction of air pollutants while recognizing and considering the effects on the economy of the state." Motion, 8 n.9 (quoting the ARB's Mission, goal, and Strategic Plan) (emphasis added). The NRDC, on the other hand, is not required to balance any economic impact against its own considerations pertaining to health and environmental protections.

Moreover, prior to the passage of the Regulation, the NRDC and the ARB were directly at odds on a number of pertinent issues. Against the NRDC's objections, the ARB has already taken steps to weaken the Regulation by amending certain compliance provisions and pushing out compliance deadlines.

Likewise, in its answer, the ARB indicates it is further considering amending the Regulation to make its application "less stringent" for vehicles such as those owned by Plaintiff's members. The NRDC argues that ARB's past practices, along with its current willingness to amend the Regulation, indicate the NRDC is willing to compromise unnecessarily to appease Plaintiff and to settle this action. The NRDC has thus made a sufficient showing that its interests not only diverge from those of the ARB, but at times are adverse to the ARB's.

Based on the above analysis, the NRDC has therefore made the requisite showing that the ARB may not adequately represent its interests because the NRDC has provided evidence that: 1) as described above, the NRDC's interests are more "narrow and parochial" than those of the ARB, which is tasked not only with considering the environmental effects of its regulation, but also with considering the economic impact its rules will have on the state as a whole; and 2) despite the NRDC's protests, the ARB is willing to compromise, and potentially eviscerate, the Regulation in favor of Plaintiff's interests.*fn3

The requirement that existing parties may not adequately represent the NRDC's interests is therefore satisfied.

After considering all of the intervention factors as set forth above, the Court finds that the NRDC is entitled to intervene as a matter of right in this action.

B. Permissive Intervention

Even if the NRDC had failed to make the requisite showing that it is entitled to intervene as of right, the Court finds permissive intervention proper as well. Permissive intervention is appropriate if the moving party satisfies three requirements:

"(1) the movant must show an independent ground for jurisdiction;

(2) the motion must be timely; and (3) the movant's claim of defense and the main action must have a question of law and fact in common." Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir. 1989), aff'd, 495 U.S. 82 (1990); see also Fed. R. Civ. Proc. 24(b).

This Court has an independent ground for jurisdiction under 28 U.S.C. §§ 1331 and 1367, the NRDC's defenses and the main action raise common questions of law and fact, and the Court has already found above the Motion is timely. Plaintiff's only arguments in opposition to permissive intervention are that the NRDC will add nothing of substance to the litigation of this matter and that Plaintiff will be prejudiced by having to litigate against both "the awesome power of the State" and a "well-funded, nationwide organization." Opposition, 6:19-25. In light of the NRDC's above-discussed interest in the merits of this litigation, Plaintiff's objection is insufficient to warrant denial of the Motion. Indeed, were this Court to accept Plaintiff's unsupported argument that it will be unduly burdened by litigating against the state and an intervenor, there would be almost no case in which permissive intervention would be granted. See also City of Los Angeles, 288 F.3d at 404 ("[T]he idea of 'streamlining' the litigation...should not be accomplished at the risk of marginalizing those...who have some of the strongest interests in the outcome.").

Likewise, the NRDC has shown that it will bring a unique perspective and expertise to this action that will not necessarily, as Plaintiff suggests, duplicate the ARB's role. Accordingly, the Court finds permissive intervention is warranted.


For the reasons just stated, the NRDC's Motion to Intervene (ECF No. 10) is GRANTED. The NRDC is ordered to file its Answer not later than ten (10) days following the date this Order is electronically filed.


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