California Dump Truck Owners Association v. Air Resources Board

Filing 18

ORDER granting 10 NRDC's Motion to Intervene, signed by Judge Morrison C. England, Jr., on 5/20/11. The NRDC is ordered to file its Answer not later than 10 days following the date this Order is electronically filed. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CALIFORNIA DUMP TRUCK
OWNERS ASSOCIATION

No. 2:11-cv-00384-MCE-GGH

12
Plaintiff,
13
v.

MEMORANDUM AND ORDER

14
15
16
17

MARY D. NICHOLS; Chairperson
of the California Air
Resources Board; JAMES
GOLDESTENE, Executive Office
of the California Air
Resources Board,

18

Defendants.

19

----oo0oo----

20
21

Plaintiff California Dump Truck Owners Association

22

(“Plaintiff”) initiated this action against the Chairperson and

23

the Executive Officer of California’s Air Resources Board

24

(hereafter collectively the “ARB”) seeking to enjoin enforcement

25

of the ARB’s Truck and Bus Regulation (“Regulation”) on the basis

26

it is preempted by federal law.

27

///

28

///
1

1

Presently before the Court is a Motion to Intervene (“Motion”)

2

filed by the Natural Resources Defense Council, Inc. (“NRDC”).

3

For the following reasons, the NRDC’s Motion is GRANTED.1

4
BACKGROUND

5
6
7

The Regulation, which is formally entitled “Regulation to

8

Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen

9

and Other Criteria Pollutants from In-Use Heavy-Duty Disel-Fueled

10

Vhicles,” 13 California Code of Regulations § 2025, sets fuel

11

emission standards for heavy-duty, diesel-fueled vehicles driven

12

on or designed to be driven on public highways and is intended to

13

reduce vehicle emissions.

14

¶ 4.

15

emissions and to positively affect the health of California’s

16

citizens.

17

Plaintiff’s First Amended Complaint,

The Regulation is expected to drastically reduce fuel

Motion, 3:1-16.

The NRDC’s organizational purpose “is to protect the

18

environment and public health, including the environment and

19

health of its members.”

20

profit organization with more than 400,000 members nationwide and

21

more than 70,000 California members.

22

the NRDC, many of its California members reside “near

23

transportation corridors where vehicles covered by the Regulation

24

will travel.”

25

///

Id., 6:11-13.

It is a national non-

Id., 6:9-16.

According to

Id., 6:15-16.

26
27
28

1

Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
2

1

While all NRDC members benefit from the Regulation’s anticipated

2

reduction in vehicle emissions, and from the consequent reduction

3

in health risks, those members living near impacted freeways are

4

significantly affected by the rule.

5

contends that, if Plaintiff is successful in its claims, “NRDC’s

6

efforts to reduce diesel emissions across the state will be

7

significantly impaired and the health benefits of the Regulation

8

will be lost.”

9

Id., 6:17-21.

The NRDC thus

Id., 7:23-8:1.

As part of the NRDC’s efforts, it spent over two years

10

actively advocating passage of the Regulation.

11

More specifically, the “NRDC attended meetings with [ARB] staff

12

to help develop the Regulation, provided written comments to

13

[ARB] advocating that the Board strengthen the Regulation,

14

participated in public workshops on the Regulation, and testified

15

before [ARB] at the public hearing urging adoption of the

16

Regulation.”

17

Id., 3:17-21.

Id., 3:18-21.

“During the rulemaking process, NRDC disagreed with [ARB]

18

over many aspects of the Regulation, with NRDC advocating for

19

more stringent controls.”

20

NRDC’s objections, the ARB amended the Regulation in December

21

2010, weakening compliance provisions and delaying the

22

implementation schedule for some requirements.

23

during the course of this still-new litigation, the NRDC has

24

taken issue with the ARB’s defense of the rule, pointing to

25

statements in the ARB’s Answer as evidence of the ARB’s

26

willingness to amend the Regulation even further to appease

27

Plaintiffs.

28

///

Id., 9:1-3.

3

Moreover, despite the

Id., 9:3-6.

Even

1

Reply, 11:16-12:3 (quoting ARB’s Answer, ¶ 27 (“Plaintiff’s claim

2

will soon be moot because the [ARB] is presently considering

3

amending the regulation at issue to make it less stringent for

4

dump trucks and other heavy duty trucks and buses.”)).

5

and the ARB have thus been at odds over the Regulation on a

6

number of occasions.

7

The NRDC

Motion, 9:9-10.

The NRDC now argues that it should be allowed to intervene

8

as a matter of right pursuant to Federal Rule of Civil Procedure

9

24(a)(2).2

10

Alternatively, Plaintiffs seek permissive

intervention under the provisions of Rule 24(b).

11

Plaintiff opposes the NRDC’s Motion, though the ARB does

12

not.

According to Plaintiff, its suit presents only a “binary”

13

question: “either the regulation is preempted or it is not.”

14

Opposition, 2:5.

15

unlikely be able to contribute anything meaningful to this

16

litigation because the law on preemption is settled, the relevant

17

facts are likely to be undisputed and settlement is unlikely.

18

Id., 2:8-12.

Plaintiff thus argues that the NRDC will

19
ANALYSIS

20
A.

21

Intervention as of Right

22
23

An intervenor as a matter of right must meet all

24

requirements of Rule 24(a)(2) by showing:

25

///

26

///

27
2

28

All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
4

1
2
3
4
5
6
7
8
9
10

(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.’”

11
12

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

13

Cir. 2002) (citations omitted).

14

In its Opposition, Plaintiff challenges only whether the

15

NRDC has a significantly protectable interest related to the

16

litigation and whether, absent intervention, the ARB will

17

adequately represent the NRDC’s interests.

18

aforementioned requirements articulated in Rule 24(a)(2) will

19

nonetheless be addressed in turn below.

Each of the

20
21

1.

NRDC’s application to intervene is timely.

22
23
24
25
26
27
28

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.
5

1

United States v. State of Washington, 86 F.3d 1499, 1503 (9th

2

Cir. 1996) (internal citations omitted).

3

determined from all the circumstances” in the court’s “sound

4

discretion”.

5

“Timeliness is to be

NAACP v. New York, 413 U.S. 345, 366 (1973).

Plaintiff does not dispute the timeliness of the NRDC’s

6

request. Plaintiff filed its case in February, amended its

7

complaint at the beginning of April and no substantive

8

proceedings have been had.

9

timely.

The NRDC’s Motion is therefore

10
2.

11

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

12
13

A proposed intervenor has “a ‘significant protectable

14

interest’ in [the] action if (1) [it asserts] an interest that is

15

protected under some law, and (2) there is a ‘relationship’

16

between [that] legally protected interest and the plaintiff’s

17

claims.”

18

v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). “The ‘interest’

19

test is not a clear-cut or bright-line rule, because ‘[n]o

20

specific legal or equitable interest need be established.’”

21

(quoting Greene v. United States, 996 F.2d 973, 976 (9th Cir.

22

1993)).

23

‘practical, threshold inquiry,’ to discern whether allowing

24

intervention would be ‘compatible with efficiency and due

25

process.” Id. (citations omitted).

26

///

27

///

28

///

City of Los Angeles, 288 F.3d at 398 (quoting Donnelly

Id.

Under the interest test courts are required “to make a

6

1

An applicant may satisfy the requirement of a “significant

2

protectable interest” if resolution of the plaintiff’s claims

3

will affect the applicant for intervention.

4

States Envtl. Protection Agency, 137 F.3d 1135, 1141-42 (9th Cir.

5

1998).

6

applicant asserts an interest protected by law and there is a

7

“relationship” between that interest and the plaintiff’s claims.

8

Donnelly, 159 F.3d at 409.

9

direct as long as it may be impaired by the outcome of the

Montana v. United

A “significant protectable interest” exists if the

The requisite interest need not be

10

litigation.

11

Co., 386 U.S. 129, 135-36 (1967).

12

Cascade Natural Gas Corp. v. El Paso Natural Gas

The NRDC cites two protectable interests as the basis for

13

its intervention: 1) its members’ interests in reducing the

14

public health impacts of diesel emissions in California; and

15

2) its interests in upholding regulations the adoption of which

16

they actively advocated.

17

First, the NRDC argues that numerous of its California

18

members live near transportation corridors where vehicles covered

19

by the Regulation travel.

20

most by the localized increase in emissions that will result from

21

a finding that the regulation is preempted.

22

These members will be affected the

In addition, the NRDC points out that it worked with the ARB

23

for over two years to develop the Regulation, and that the NRDC

24

advocated both the Regulation’s adoption and strengthening.

25

NRDC attended meetings with ARB staff, provided written comments,

26

participated in public workshops and testified before ARB to urge

27

adoption of the Regulation.

28

///
7

The

1

Both of the NRDC’s articulated interests are sufficient to

2

support intervention.

To reiterate, the NRDC is not obligated to

3

identify a “specific legal or equitable interest.”

4

that the NRDC members benefit from the challenged legislation by

5

way of improved air quality and health.

6

Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184,

7

1189-90 (9th Cir. 1998) (union permitted to intervene in suit

8

challenging state prevailing wage laws because union members had

9

a significant interest in receiving those wages).

It is enough

See Californians for

Even if that

10

were not the case, however, the NRDC’s interests are protected

11

under numerous federal and state statutes, such as the Clean Air

12

Act, 42 U.S.C. § 7401(b), the California Health and Safety Code

13

§§ 39000-01, and the Regulation itself.

14

interest organization has a significantly protectable interest in

15

defending legislation it supported.

16

Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995) (“A public interest

17

group is entitled as a matter of right to intervene in an action

18

challenging the legality of a measure it has supported.”);

19

Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.

20

1983).

21

protectable interest has been demonstrated.

22

///

23

///

24

///

25

///

26

///

27

///

28

///

In addition, a public

Idaho Farm Bureau Fed’n v.

As such, the Court concludes here that a significant

8

3.

1
2

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

3
4

According to the NRDC, a decision in Plaintiff’s favor would

5

impair the NRDC’s ability to protect its and its members’

6

interests in reducing the public health impacts of diesel

7

emissions in California as well as its interests in upholding

8

regulations the adoption of which they actively advocated.

9

Because of their proximity to highway corridors, some NRDC

10

members will suffer direct and immediate health consequences from

11

a ban on the enforcement of the Regulation’s emissions reduction

12

standards.

13

NRDC’s advocacy efforts in supporting the passage of the

14

Regulation over the last several years.

15

if the Regulation is struck down, it cannot “simply turn around

16

and adopt a similar regulation the next day that would result in

17

the same level of emissions reductions sorely needed for the

18

state to meet federal air quality standards.”

19

Consequently, this threshold requirement for intervention is also

20

satisfied.

Finally, a decision for Plaintiff will undermine the

As the NRDC points out,

Reply, 5:17-19.

21
4.

22

Existing parties may not adequately protect the
NRDC’s interests.

23
24

When determining whether a proposed intervenor’s interests

25

are adequately represented, the following factors are considered:

26

///

27

///

28

///
9

1

(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.

2
3
4
5

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

6

The burden of showing that existing parties may inadequately

7

represent the NRDC’s interests is a minimal one.

As noted by the

8

Supreme Court, all the applicant needs to show is that “the

9

representation of [its] interest ‘may be’ inadequate.”

Trbovich

10

v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972).

11

Any doubt as to whether the existing parties will adequately

12

represent the intervenor should be resolved in favor of

13

intervention.

14

Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).

15

Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special

“The most important factor in determining the adequacy of

16

representation is how the interest compares with the interests of

17

existing parties.

18

existing party have the same ultimate objective, a presumption of

19

adequacy arises.

20

that of one of the present parties, a compelling showing should

21

be required to demonstrate inadequate representation.

22

also an assumption of adequacy when the government is acting on

23

behalf of a constituency that it represents.

24

very compelling showing to the contrary, it will be presumed that

25

a state adequately represents its citizens when the applicant

26

shares the same interest.”

27

1086 (9th Cir. 2003) (internal citations and quotations omitted).

28

///

When an applicant for intervention and an

If the applicant’s interest is identical to

There is

In the absence of a

Arakaki v. Cayetano, 324 F.3d 1078,

10

1

While the NRDC and the ARB may share the same “ultimate

2

objective,” namely defending the regulation against Plaintiff’s

3

preemption argument, the parties’ interests are neither

4

“identical” nor “the same.”

5

v. Berg, 268 F.3d 810, 823 (9th Cir. 2001) (presumption of

6

adequacy can be overcome by showing the parties “do not have

7

sufficiently congruent interests”).

8

not only different, they are in some respects adverse.

9

is a public agency that must balance relevant environmental and

See Sw. Ctr for Biological Diversity

In fact, their interests are
The ARB

10

health interests with competing resource constraints and the

11

interests of various constituencies (including Plaintiff’s),

12

interests that can be, and here are, at odds with the NRDC’s

13

interests.

14

public health, welfare and ecological resources through the

15

effective and efficient reduction of air pollutants while

16

recognizing and considering the effects on the economy of the

17

state.”

18

Strategic Plan) (emphasis added).

19

is not required to balance any economic impact against its own

20

considerations pertaining to health and environmental

21

protections.

22

Indeed, the ARB’s mission is to “promote and protect

Motion, 8 n.9 (quoting the ARB’s Mission, goal, and
The NRDC, on the other hand,

Moreover, prior to the passage of the Regulation, the NRDC

23

and the ARB were directly at odds on a number of pertinent

24

issues.

25

steps to weaken the Regulation by amending certain compliance

26

provisions and pushing out compliance deadlines.

27

///

28

///

Against the NRDC’s objections, the ARB has already taken

11

1

Likewise, in its answer, the ARB indicates it is further

2

considering amending the Regulation to make its application “less

3

stringent” for vehicles such as those owned by Plaintiff’s

4

members.

5

its current willingness to amend the Regulation, indicate the

6

NRDC is willing to compromise unnecessarily to appease Plaintiff

7

and to settle this action.

8

showing that its interests not only diverge from those of the

9

ARB, but at times are adverse to the ARB’s.

10

The NRDC argues that ARB’s past practices, along with

The NRDC has thus made a sufficient

Based on the above analysis, the NRDC has therefore made the

11

requisite showing that the ARB may not adequately represent its

12

interests because the NRDC has provided evidence that: 1) as

13

described above, the NRDC’s interests are more “narrow and

14

parochial” than those of the ARB, which is tasked not only with

15

considering the environmental effects of its regulation, but also

16

with considering the economic impact its rules will have on the

17

state as a whole; and 2) despite the NRDC’s protests, the ARB is

18

willing to compromise, and potentially eviscerate, the Regulation

19

in favor of Plaintiff’s interests.3

20
21
22
23
24
25
26
27
28

3

See California, ex rel. Bill Lockyer v. United States,
450 F.3d 436, 445 (9th Cir. 2006) (proposed intervenors overcame
presumption of showing government would adequately represent
their interests when intervenors had “more narrow, parochial
interests” than the government and intervenors had presented
evidence that the government would “take a position that actually
compromise[d] (and potentially eviscerate[d]) the protections of
the [challenged law]”); Golden Gate Rest. Ass’n v. City and
County of San Francisco, 2007 WL 1052820, * (N.D. Cal.)
(observing that the assumption of adequacy arising when a
government agency acts on behalf of its constituents may be
overcome by a showing that the proposed intervenor’s interests
are “more narrow and parochial than the interests of the public
at large”) (citing Californians For Safe and Competitive Dump
(continued...)
12

1

The requirement that existing parties may not adequately

2

represent the NRDC’s interests is therefore satisfied.

3

After considering all of the intervention factors as set

4

forth above, the Court finds that the NRDC is entitled to

5

intervene as a matter of right in this action.

6
B.

7

Permissive Intervention

8
9

Even if the NRDC had failed to make the requisite showing

10

that it is entitled to intervene as of right, the Court finds

11

permissive intervention proper as well.

12

is appropriate if the moving party satisfies three requirements:

13

///

14

///

15

///

Permissive intervention

16
17
18
19
20
21
22
23
24
25
26
27
28

3

(...continued)
Truck Transp., 152 F.3d at 1190 (“because employment interests of
[union’s] members were potentially more narrow and parochial than
the interests of the public at large, [union] demonstrated that
the representation of its interests by [the state] may have been
inadequate”); Forest Conservation Council v. U.S. Forest Serv.,
66 F.3d 1489, 1499 (9th Cir. 1995) (intervenor met its burden of
showing inadequate representation when government was “required
to represent a broader view than the more narrow, parochial
interests” of the intervenor)); In Defense of Animals v. U.S.
Dept. of Interior, 2011 WL 1085991, *3 (E.D. Cal.) (intervenor
made showing government may not adequately represent its
interests when intervenor “had specific interests...that may not
be shared by the Federal defendants, who represent a wide variety
of sometimes competing interests held by various segments of the
general public”); see also Arakaki, 324 F.3d 1087 (upholding
denial of intervention when the government made clear it would
make all necessary arguments to protect the would-be intervenors’
rights, no conflict prevented the state agency from making those
arguments, the would-be intervenor failed to show it would offer
any necessary elements not already offered in the litigation, and
similarly-situated parties had already been permitted to
intervene in the action).
13

1

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

2

(2) the motion must be timely; and (3) the movant’s claim of

3

defense and the main action must have a question of law and fact

4

in common.”

5

1989), aff’d, 495 U.S. 82 (1990); see also Fed. R. Civ. Proc.

6

24(b).

7

Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir.

This Court has an independent ground for jurisdiction under

8

28 U.S.C. §§ 1331 and 1367, the NRDC’s defenses and the main

9

action raise common questions of law and fact, and the Court has

10

already found above the Motion is timely.

Plaintiff’s only

11

arguments in opposition to permissive intervention are that the

12

NRDC will add nothing of substance to the litigation of this

13

matter and that Plaintiff will be prejudiced by having to

14

litigate against both “the awesome power of the State” and a

15

“well-funded, nationwide organization.”

16

light of the NRDC’s above-discussed interest in the merits of

17

this litigation, Plaintiff’s objection is insufficient to warrant

18

denial of the Motion.

19

Plaintiff’s unsupported argument that it will be unduly burdened

20

by litigating against the state and an intervenor, there would be

21

almost no case in which permissive intervention would be granted.

22

See also City of Los Angeles, 288 F.3d at 404 (“[T]he idea of

23

‘streamlining’ the litigation...should not be accomplished at the

24

risk of marginalizing those...who have some of the strongest

25

interests in the outcome.”).

26

///

27

///

28

///

Opposition, 6:19-25.

In

Indeed, were this Court to accept

14

1

Likewise, the NRDC has shown that it will bring a unique

2

perspective and expertise to this action that will not

3

necessarily, as Plaintiff suggests, duplicate the ARB’s role.

4

Accordingly, the Court finds permissive intervention is

5

warranted.

6
CONCLUSION

7
8
9

For the reasons just stated, the NRDC’s Motion to Intervene

10

(ECF No. 10) is GRANTED.

11

not later than ten (10) days following the date this Order is

12

electronically filed.

13
14

The NRDC is ordered to file its Answer

IT IS SO ORDERED.
Dated: May 20, 2011

15
16
17

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
15