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Sierra Club v. United States Environmental Protection Agency

United States District Court, Ninth Circuit

October 9, 2013

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; GINA McCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants.



On June 19, 2013, Plaintiffs Sierra Club, American Lung Association, Environmental Defense Fund, and Natural Resources Defense Council ("Plaintiffs") brought the present action under the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604. Proposed Defendant-Intervenors, the National Association of Manufacturers and other industry groups (collectively, "Proposed Intervenors"), [1] seek to intervene in this matter, of right and permissively, under Federal Rule of Civil Procedure 24. Plaintiffs have filed their opposition to the motion to intervene, as have Defendants United States Environmental Protection Agency ("EPA") and Gina McCarthy, Administrator of the EPA.

Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby DENIES the Motion to Intervene.[2] As explained below, Proposed Intervenors do not satisfy the requirements for intervention as of right under Rule 24(a), nor have they established that permissive intervention should be granted to allow under the circumstances herein.


The Clean Air Act, 42 U.S.C. §§ 7401-7671q ("the Act"), is intended to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare." 42 U.S.C. § 7401(b)(1). National Ambient Air Quality Standards ("NAAQS") are a central element of the Act. Sections 108 and 109 of the Act require EPA to establish NAAQS for "criteria pollutants" that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). EPA promulgates "primary" and "secondary" NAAQS to protect against a pollutant's "adverse" effects on public health and welfare. 42 U.S.C. § 7409(b). The Act also requires that EPA review the criteria and each NAAQS at five-year intervals, and revise them as "appropriate in accordance with [sections 108 and 109(b)]." 42 U.S.C. § 7409(d)(1).

Pursuant to 42 U.S.C. §§ 7408-409, on March 27, 2008, EPA published a final rule setting the primary standard NAAQS for ozone. Final Rule, 73 Fed. Reg. 16, 436, 16, 437-39 (Mar. 27, 2008). Plaintiffs allege that EPA had a mandatory duty to complete its "review [of] the [NAAQS] for ozone" within five years, or by March 27, 2013, but to date has not complied. (Complaint ¶ 37, Dkt. No. 1.) Plaintiffs further allege that EPA's failure to review the NAAQS constitutes a failure to perform an act or duty that is not discretionary within the meaning of 42 U.S.C. § 7604(a)(2). Plaintiffs seek declaratory and injunctive relief requiring EPA to take final action by completing the required review no later than September 30, 2014.

Proposed Intervenors represent a broad spectrum of industries directly affected by regulations promulgated by EPA under the Act, including the ozone NAAQS. Member companies of Proposed Intervenors are subject to regulatory controls under the ozone NAAQS, and a more stringent NAAQS would result in additional requirements on those industries. Proposed Intervenors have participated in past rulemakings concerning the ozone NAAQS and are actively participating in the ongoing review process. Proposed Intervenors argue that, because Plaintiffs' action would "prematurely force" EPA to a decision on a review of the ozone NAAQS, EPA could be denied the benefit of a full analysis of the latest scientific studies, and Proposed Intervenors' member companies could be impacted adversely. They argue that they have substantial economic and procedural interests in both the outcome of the ongoing review and in ensuring that they have adequate time to develop and present to EPA information concerning the ozone NAAQS.


Intervention is a procedure by which a nonparty can gain party status without the consent of the original parties. United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 933 (2009). There are two types of intervention: intervention as of right and permissive intervention. Intervention exists as a matter of right when a federal statute confers the right to intervene or the applicant has a legally protected interest that may be impaired by disposition of the pending action and that is not represented adequately by existing parties. FRCP 24(a). Permissive intervention may be allowed at a court's discretion when a federal statute confers a conditional right to intervene, or the applicant's claim or defense and the main action share a common question of law or fact. FRCP 24(b).

Proposed Intervenors seek to intervene, both as a matter of right and permissively under sub-sections (a) and (b) of Federal Rule of Civil Procedure 24. Plaintiffs oppose intervention under either standard. EPA opposes intervention as of right but expresses no opinion on permissive intervention.



Courts in the Ninth Circuit apply a four-part test to determine whether intervention should be granted as a matter of right: (1) the applicant must assert a "significantly protectable" interest relating to the property or transaction that is the subject of the action; (2) the applicant's interest must be represented inadequately by the parties to the action; (3) disposition of the action without intervention may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's motion must be timely. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998); Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir. 1997). Failure to satisfy any one of the requirements is fatal to ...

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