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

May 20, 2011

CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION PLAINTIFF,
v.
MARY D. NICHOLS; CHAIRPERSON OF THE CALIFORNIA AIR RESOURCES BOARD; JAMES GOLDESTENE, EXECUTIVE OFFICE OF THE CALIFORNIA AIR RESOURCES BOARD, DEFENDANTS.



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

MEMORANDUM AND ORDER

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

BACKGROUND

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.

ANALYSIS

A. Intervention as of Right

An intervenor as a matter of right must meet all requirements of Rule ...


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