WildEarth Guardians v. Jackson

Filing 69


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 WILDEARTH GUARDIANS, 5 Plaintiff, 6 7 8 United States District Court For the Northern District of California ORDER DENYING MOTION TO INTERVENE AND MOTION FOR AN ORDER TO SHOW CAUSE (Docket Nos. 43 and 46) v. LISA JACKSON, in her official capacity as Administrator of the Environmental Protection Agency, 9 10 No. C 09-2453 CW Defendant. ________________________________/ 11 12 Proposed Intervenors State of North Dakota and North Dakota 13 Department of Health (North Dakota) seek intervention in this 14 action for the limited purpose of requesting that this Court issue 15 an order to show cause why Defendant United States Environmental 16 Protection Agency (EPA) Administrator1 should not be held in 17 18 contempt for exceeding its authority under the consent decree 19 previously entered in this action. 20 Having considered the papers submitted by the parties and their 21 oral arguments, the Court DENIES North Dakota’s motions. 22 23 24 The EPA opposes both motions. BACKGROUND This action was originally initiated by Plaintiff WildEarth Guardians on June 3, 2009, pursuant to the Clean Air Act’s citizen 25 26 1 27 28 The Court adopts the terminology used by Defendant and Proposed Intervenors in their papers and will refer to Defendant as the EPA throughout this Order. 1 suit provision, 42 U.S.C. § 7604(a)(2), which allows any person to 2 bring an action against the EPA “where there is alleged a failure 3 of the Administrator to perform any act or duty under this chapter 4 which is not discretionary with the Administrator.” 5 alleged that the EPA had failed to perform a non-discretionary 6 WildEarth duty either to approve a State Implementation Plan (SIP) or 7 promulgate a Federal Implementation Plain (FIP) for California, 8 9 Colorado, Idaho, New Mexico, North Dakota, Oklahoma, and Oregon to United States District Court For the Northern District of California 10 satisfy the requirements of Clean Air Act section 110(a)(2)(D)(i), 11 42 U.S.C. § 7410(a)(2)(D)(i), regarding interstate transport of 12 pollution and the 1997 National Ambient Air Quality Standards for 13 eight-hour ozone and fine particulate matter. 14 separate authority and obligations regarding regional haze The EPA has 15 requirements, pursuant to Clean Air Act section 169A, 42 U.S.C. 16 §§ 7491, 7492, which were not at issue in this case. 17 18 On February 23, 2010, the Court approved the parties’ consent 19 decree. 20 modified on several occasions by stipulation or order of the 21 Court. 22 promulgate a FIP, or approve a SIP in part and promulgate a 23 Docket No. 26. The consent decree has since been The consent decree requires the EPA to approve a SIP, partial FIP by specified dates for each of the seven States for 24 each of the four elements of 42 U.S.C. § 7410(a)(2)(D)(i). As a 25 26 result of several amendments and extensions of deadlines, the 27 consent decree currently requires that the EPA must propose action 28 to address the visibility requirement related to interstate 2 1 transport for North Dakota by September 1, 2011, Docket No. 38, 2 and take final action by March 2, 2012, Docket No. 68. 3 On September 1, 2011, the EPA notified North Dakota that the 4 agency proposed the partial approval of North Dakota’s regional 5 haze SIP and interstate transport SIP, combined with a partial 6 regional haze FIP and interstate transport FIP. Westfall Decl., 7 Ex. A. The EPA subsequently published its proposed actions in the 8 9 Federal Register on September 21, 2011. 76 F.R. 58570. In the United States District Court For the Northern District of California 10 notice, the EPA states that the “proposed [interstate transport] 11 FIP consists of a finding that the combination of our proposed 12 partial approval of North Dakota’s Regional Haze SIP and our 13 proposed partial FIP for regional haze for North Dakota will 14 satisfy the interstate transport requirements of section 15 110(a)(2)(D)(i)(II) with respect to visibility.” 76 F.R. 58574. 16 Because of the overlap between the visibility and regional haze 17 18 requirements, the EPA determined that simultaneous action would be 19 “the most efficient approach” to address both, without creating 20 two separate sets of requirements for compliance. 21 22 23 Id. In the notice in the Federal Register, the EPA referred to the consent decree entered into by this Court several times. Specifically, the EPA referred to the deadlines contained in the 24 consent decree, and stated that, in regards to an interstate 25 26 transport SIP or FIP, it was required to sign a notice of proposed 27 rulemaking by September 1, 2011. 76 F.R. 58576. 28 stated, “Given our September 1, 2011 deadline to sign this notice 3 The EPA also 1 of proposed rulemaking under the consent decree,” it lacked 2 sufficient time to act on or consider fully voluminous exhibits 3 that North Dakota had submitted on July 28, 2011 with a proposed 4 amendment to its regional haze SIP. 5 nevertheless proposed certain actions on the aspects of this 6 76 F.R. 58579. The EPA submission that the agency was able to evaluate in the available 7 time, even though under 42 U.S.C. § 7410(k)(2), the EPA was “not 8 9 United States District Court For the Northern District of California 10 required to act on a SIP submittal until 12 months after it is determined to be or deemed complete.” Id. DISCUSSION 11 12 North Dakota seeks to intervene as a matter of right, or in 13 the alternative, through permissive intervention, for the limited 14 purpose of seeking an order directing the EPA to show cause why it 15 should not be held in contempt for violating the terms of the 16 consent decree. 17 18 19 I. Intervention as a Matter of Right To intervene as a matter of right under Rule 24(a)(2) of the 20 Federal Rules of Civil Procedure, an applicant must claim an 21 interest the protection of which may, as a practical matter, be 22 impaired or impeded if the lawsuit proceeds without the applicant. 23 Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 24 1493 (9th Cir. 1995). The Ninth Circuit applies a four-part test 25 26 27 28 to motions under Rule 24(a)(2): (1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the 4 1 2 3 action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately protected by the parties to the action. 4 Id. (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 5 1993)). 6 North Dakota alleges that the EPA relied on the consent 7 decree to give it the authority to address regional haze 8 requirements, based on the language described above in the notice 9 of the proposed action in the Federal Register. However, North 10 United States District Court For the Northern District of California Dakota misinterprets this language. The notice in the Federal 11 12 Register does not say that the EPA relied on the consent decree 13 for authority to take action on a regional haze SIP or FIP. It 14 says that the EPA was simultaneously exercising its separate 15 authority on both regional haze and interstate transport 16 requirements, for efficiency. 17 “take all well-pleaded, nonconclusory allegations in the motion to Although this Court is required to 18 intervene, the proposed complaint or answer in intervention, and 19 declarations supporting the motion as true,” it is not required to 20 21 do so when there is “sham, frivolity or other objections.” 22 Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 23 2001). 24 published in the Federal Register, North Dakota’s allegation--that 25 the EPA relied on the consent decree in the notice to assume the 26 Sw. Because it is contradicted by the text of the notice legal authority to promulgate a regional haze FIP--will not be 27 regarded as true. 28 5 1 The EPA challenges North Dakota’s motion for intervention as 2 a matter of right on two grounds: (1) that the motion is untimely; 3 and (2) that North Dakota does not have a legally protectable 4 interest. 5 6 The Ninth Circuit test for the timeliness of a motion to intervene considers “1) the stage of the proceedings at which an 7 applicant seeks to intervene; 2) the prejudice to other parties; 8 9 and 3) the reason for and length of any delay.” Empire Blue Cross United States District Court For the Northern District of California 10 and Blue Shield v. Janet Greeson's A Place for Us, Inc., 62 F.3d 11 1217, 1219 (9th Cir. 1995). 12 North Dakota argues that its request is timely, even though 13 the case was resolved and closed more than a year and a half ago, 14 because it could not have known that its rights were not 15 adequately protected earlier, in that “this is the first instance 16 in this proceeding at which [the] EPA has interpreted its duties 17 18 under the [consent decree] to include implementation of the 19 Regional Haze provisions of the [Clean Air Act].” 20 However, North Dakota has not made any credible allegations that 21 the EPA interpreted its duties under the consent decree as 22 anything other than a requirement to take action on the interstate 23 Reply, at 6. transport plans by a certain date. 24 “An applicant has a ‘significant protectable interest’ in an 25 26 action if (1) it asserts an interest that is protected under some 27 law, and (2) there is a ‘relationship’ between its legally 28 protected interest and the plaintiff's claims.” 6 Donnelly v. 1 Glickman, 159 F.3d 405, 409 (9th Cir. 1998). In its motion, North Dakota protests the content of the EPA’s 2 3 proposed actions regarding the regional haze FIP and the 4 interstate transport FIP and that the EPA issued both proposals 5 together. 6 However, the EPA’s authority to enter into any kind of FIP and the content thereof were never at issue in this case. The 7 consent decree in this case did not create any duty or authority 8 9 on the part of the EPA, other than to enforce the duty to comply United States District Court For the Northern District of California 10 with a particular timetable regarding interstate transport plans, 11 and North Dakota is not protesting this schedule. 12 North Dakota has not asserted any protectable interest in this 13 case. 14 U.S. Dist. LEXIS 30581, at *7-8 (N.D. Cal.) (denying a motion to Therefore, See, e.g., Our Children’s Earth Foundation v. EPA, 2006 15 intervene to protest the substance of the ultimate EPA action 16 where “[t]he substantive content of any new regulations, was not, 17 18 however, a subject of this lawsuit, [and t]he only issue [was] 19 whether the Administrator will review the rules and by when he 20 will act on the findings of his review.”) (emphasis in original). 21 Accordingly, North Dakota’s motion for intervention as a 22 23 matter of right is DENIED. II. Permissive Intervention 24 A court may, in its discretion, permit intervention under 25 26 Rule 24(b)(1)(B) by anyone who “has a claim or defense that shares 27 with the main action a common question of law or fact.” 28 exercising its discretion, a court should “consider whether the 7 In 1 intervention will unduly delay or prejudice the adjudication of 2 the original parties' rights.” 3 requirements for permissive intervention are (1) the applicant 4 must show independent grounds of subject matter jurisdiction; 5 (2) the motion must be timely; and (3) the applicant’s claim or 6 Fed. R. Civ. P. 24(b)(3). The defense, and the main action, must have a question of law or a 7 question of fact in common. San Jose Mercury News, Inc. v. United 8 9 States Dist. Court-Northern Dist. of Cal., 187 F.3d 1096, 1100 United States District Court For the Northern District of California 10 (9th Cir. 1999) (citing predecessor provision, Federal Rule of 11 Civil Procedure 24(b)(2)). 12 North Dakota reiterates the same reasons for permissive 13 intervention as it asserted for mandatory intervention, which this 14 Court has found wanting. In its reply papers, North Dakota also 15 raises a new argument: that it has “an independent claim regarding 16 the enforcement of the terms” of the consent decree, which is 17 18 proper to bring under this Court’s retained jurisdiction over that 19 decree. 20 the terms of the consent decree. 21 the EPA did not take action on the interstate transport SIP within 22 the time periods mandated in the consent decree. 23 However, North Dakota is not actually seeking to enforce North Dakota is not arguing that Accordingly, North Dakota’s motion for permissive 24 intervention is DENIED. 25 26 III. Motion for an Order to Show Cause 27 “The standard for finding a party in civil contempt is well 28 settled: The moving party has the burden of showing by clear and 8 1 convincing evidence that the [non-moving party] violated a 2 specific and definite order of the court.” 3 Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. 4 City & County of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 5 1992)). 6 FTC v. Affordable However, substantial compliance and acting on a good faith and reasonable interpretation of the court order can 7 preclude sanctions. In re Dual-Deck Video Cassette Recorder 8 9 Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). The decision United States District Court For the Northern District of California 10 to find a party in contempt is within the discretion of the 11 district court. 12 F.3d 998, 1004 (9th Cir. 2004). 13 14 Jerry's Famous Deli, Inc. v. Papanicolaou, 383 North Dakota has not demonstrated, and certainly not by clear and convincing evidence, that the EPA has violated this Court’s 15 consent decree. North Dakota does not allege that the EPA failed 16 to take action by the required date; North Dakota instead alleges 17 18 that the EPA took other actions in addition to the single action 19 required in the consent decree. 20 evidence that the EPA claimed that the consent decree authorized 21 it to promulgate a regional haze FIP for North Dakota, other than 22 North Dakota’s own allegations, which are undermined by the actual 23 Further, North Dakota presents no contents of the notice in the Federal Register as described above. 24 Instead, the evidence presented shows that the EPA consistently 25 26 cites to the Clean Air Act as providing authority for it to 27 promulgate both the regional haze FIP and the interstate transport 28 FIP. The EPA cites the consent decree only as providing a 9 1 deadline for action on the interstate transport FIP. 2 an administrative decision to address both together, and thus 3 chose to address the regional haze FIP by the same date, as is 4 within its right. 5 EPA from taking that action, or required it to do so. 6 The EPA made Nothing in the consent decree prohibited the Accordingly, even if this Court had granted North Dakota 7 leave to intervene, this Court would have denied North Dakota’s 8 9 motion for an order to show cause. CONCLUSION United States District Court For the Northern District of California 10 11 For the foregoing reasons, North Dakota’s motions to 12 intervene and for an order to show cause are DENIED. 13 43 and 46) (Docket Nos. 14 15 IT IS SO ORDERED. 16 17 Dated: 12/27/2011 CLAUDIA WILKEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 10

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