State of California et al v. United States Environmental Protection Agency et al

Filing 78

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 36 MOTION TO INTERVENE. (ndrS, COURT STAFF) (Filed on 11/20/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

STATE OF CALIFORNIA, et al.,
Plaintiffs,

8
v.

9

Case No. 18-cv-03237-HSG
ORDER GRANTING MOTION TO
INTERVENE
Re: Dkt. No. 36

10

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,

11

United States District Court
Northern District of California

Defendants.
12
Pending before the Court is a motion to intervene filed by the Environmental Defense

13
14

Fund (“EDF”). Dkt. No. 36 (“Mot.”). For the reasons set forth below, EDF’s motion is

15

GRANTED.

16

I.

BACKGROUND
Plaintiffs are eight states: the State of California, by and through the Attorney General and

17
18

the California Air Resources Board; the State of Illinois; the State of Maryland; the State of New

19

Mexico; the State of Oregon; the Commonwealth of Pennsylvania; the State of Rhode Island; and

20

the State of Vermont. Dkt. No. 1 ¶¶ 1, 10–18 (“Compl.). Defendants are the U.S. Environmental

21

Protection Agency and Andrew R. Wheeler, in his official capacity as Acting Administrator of the

22

U.S. Environmental Protection Agency (collectively, “EPA”).1 Id. ¶¶ 20–21.
Plaintiffs bring a “citizen suit” under the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et

23
24

seq., concerning EPA’s alleged failure to complete non-discretionary duties required by EPA

25

regulations. Id. ¶¶ 1–5. They state that relevant EPA regulations required EPA (1) to approve or

26

disapprove state plan submissions to implement emission guidelines for certain municipal solid

27
28

1

Acting Administrator Wheeler is automatically substituted for former Administrator Scott
Pruitt. See Fed. R. Civ. P. 25(d).

1

waste landfills by September 30, 2017, and (2) to promulgate a federal plan for states that either

2

submitted plans that were disapproved by EPA or did not timely submit state plans by November

3

30, 2017. Compl. ¶¶ 1, 4, 8, 24, 49, 63–64. Plaintiffs’ complaint, filed on May 31, 2018, alleges

4

that EPA’s failure to perform these actions violated the CAA. Id. ¶ 4. Plaintiffs “seek a

5

declaration that EPA’s actions and inactions have violated the Clean Air Act, and a mandatory

6

injunction requiring EPA to immediately implement and enforce the Emission Guidelines.” Id.

7

¶ 5.
On September 13, 2018, EDF filed a motion to intervene. Dkt. No. 36 (“Mot.”). EDF

8
9

seeks an order granting it leave to intervene as a matter of right under Federal Rule of Civil
Procedure 24(a) or, alternatively, through permissive intervention under Federal Rule of Civil

11

United States District Court
Northern District of California

10

Procedure 24(b). Mot. at 13. The proposed complaint-in-intervention “seeks a declaration that

12

EPA’s actions and inactions have violated the [CAA] and injunctive relief in the form of an order

13

requiring EPA to immediately implement the Landfill Emissions Guidelines.” Dkt. No. 36-3 at 1–

14

2. Defendant filed its opposition on September 27, 2018, Dkt. No. 62 (“Opp.”), and EDF replied

15

on October 4, 2018, Dkt. No. 64 (“Reply”).

16

II.

17
18
19
20
21
22

LEGAL STANDARD
Rule 24(a) governs intervention as of right. The rule is “broadly interpreted in favor of

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

23

Citizens for Balanced Use v. Mont. Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011) (citing

24

Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006)). Courts deciding motions to intervene as of

25

right are “guided primarily by practical considerations, not technical distinctions.” See id.

26

(quoting Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001)); see also

27

United States v. City of L.A., 288 F.3d 391, 397 (9th Cir. 2002) (stating that “equitable

28

considerations” guide determination of motions to intervene as of right) (citation omitted).
2

Rule 24(b) governs permissive intervention. The Ninth Circuit interprets the rule to allow

1
2

permissive intervention “where the applicant for intervention shows (1) independent grounds for

3

jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action,

4

have a question of law or a question of fact in common.” City of L.A., 288 F.3d at 403 (quoting

5

Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996)). “In exercising its

6

discretion” on this issue, “the court must consider whether the intervention will unduly delay or

7

prejudice the adjudication of the original parties' rights.” Fed. R. Civ. P. 24(b)(3).

8

III.

9

DISCUSSION
EDF argues that it is entitled to intervention as of right, or in the alternative, to permissive

intervention. Mot. at 10–11. The core of EDF’s argument is that the eight State Plaintiffs may

11

United States District Court
Northern District of California

10

lack EDF’s expertise and may not adequately represent EDF and its members’ interests.

12

A.

EDF Is Not Entitled to Intervention As of Right.

13

Although Rule 24(a) is broadly interpreted in favor of the proposed intervenor, the Court

14

finds that EDF has not shown it is entitled to intervene as a matter of right. Because Defendant

15

does not contest that EDF’s motion is timely and that EDF has a significant protectable interest,

16

see Opp. at 3, the Court turns to the remaining factors set forth in Citizens for Balanced Use.

17
18
19

1.

Resolution of State Plaintiffs' claims may “impair or impede” EDF’s
ability to protect its interest.

After determining that there is a timely motion establishing a significant protectable

20

interest, courts look to whether the proposed intervenor’s ability to protect that interest would be

21

“impair[ed] or impede[ed]” by “the disposition of the action.” Citizens for Balanced Use, 647

22

F.3d at 897 (citation omitted). “If an absentee would be substantially affected in a practical sense

23

by the determination made in an action, [it] should, as a general rule, be entitled to intervene . . . .”

24

Id. at 898 (quoting Fed R. Civ. P. 24 advisory committee’s note to 1966 amendment).

25

EDF asserts that if the Court were to rule in favor of the Defendant, “such a ruling could

26

hinder EDF from making this argument in its own suit seeking to enforce EPA’s duty with respect

27

to landfills or other sources, and would threaten to significantly delay the implementation of the

28

Guidelines at issue here.” Reply at 8; see also Mot. at 9–10. EDF adds that even a consent decree
3

1

“could alter or impair EDF’s ability to bring future claims.” Reply at 9; see also Mot. at 9–10.

2

The Court agrees. A possible stare decisis effect in the event that factual and legal determinations

3

are reviewed on appeal “is an important consideration in determining the extent to which an

4

applicant's interest may be impaired.” United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988).

5

Here, if Plaintiffs do not prevail, the case may “have a persuasive stare decisis effect in any

6

parallel or subsequent litigation” against EPA to enforce the implementation of the Landfill

7

Emissions Guidelines. See id.

8
9
10

2.

EDF cannot overcome the presumption that the Plaintiffs will
adequately represent its interests.

Generally, “[t]he burden of showing inadequacy of representation is ‘minimal’ and

United States District Court
Northern District of California

11

satisfied if the [party seeking intervention] can demonstrate that representation of its interests

12

‘may be’ inadequate.” Citizens for Balanced Use, 647 F.3d at 898 (quoting Arakaki v. Cayetano,

13

324 F.3d 1078, 1086 (9th Cir. 2003)). In making this determination, courts consider:

14
15
16
17

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

18

Id. (quoting Arakaki, 324 F.3d at 1086). “The ‘most important factor’ in assessing the adequacy

19

of representation is ‘how the interest compares with the interests of existing parties.’” Id. (citation

20

omitted). Proposed intervenors with the same ultimate objective as an existing party but different

21

litigation strategies are normally not entitled to intervention. Arakaki, 324 F.3d at 1086 (citation

22

omitted). Put differently, where a proposed intervenor and an existing party “share the same

23

ultimate objective, a presumption of adequacy of representation arises.” Citizens for Balanced

24

Use, 647 F.3d at 898 (citation omitted). “The presumption may be overcome by evidence of

25

collusion, adversity of interest, nonfeasance, incompetence, or lack of financial resources.” Miller

26

v. Ghirardelli Chocolate Co., No. 12–cv–04936–LB, 2013 WL 6776191, at *8 (N.D. Cal. Dec. 20,

27

2013) (collecting cases).

28

In asserting divergent objectives, EDF claims that the State Plaintiffs “may seek a different
4

1

timeline for action than EDF and its members.” Reply at 3. The complaints before the Court belie

2

that claim. Both the States’ Complaint and EDF’s Intervenor-Complaint ask the Court for an

3

order “requiring EPA to immediately implement the [Emission Guidelines].” Compare Compl. at

4

3 (“Plaintiffs seek a declaration that EPA’s actions and inactions have violated the [CAA], and a

5

mandatory injunction requiring EPA to immediately implement and enforce the Emission

6

Guidelines.”) with Dkt. No. 36-3 at 1–2 (“Proposed-Intervenor seeks a declaration that EPA’s

7

actions and inactions have violated the [CAA] and injunctive relief in the form of an order

8

requiring EPA to immediately implement the Landfill Emissions Guidelines.”)
Here, EDF must overcome a substantial presumption of adequacy, as it shares the same

9

ultimate objective with the State Plaintiffs.2 EDF does not claim, however, that the existing

11

United States District Court
Northern District of California

10

Plaintiffs are incompetent. Nor does EDF point to anything in the record to suggest that the States

12

may not advance specific arguments. Indeed, EDF’s proposed opposition to EPA’s motion to

13

dismiss advances essentially the same arguments as the State’s opposition.

14

Accordingly, the Court finds that EDF is not entitled to intervention as of right.

15

B.

16

Although EDF is not entitled to intervention as of right, permissive intervention is

17

appropriate under these circumstances. Under Rule 24(b)(1), a court may permit intervention by

18

litigants who “ha[ve] a claim or defense that shares with the main action a common question of

19

law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Where such litigants timely intervene, courts consider

20

several factors in deciding whether to permit intervention, including:

21

Permissive Intervention is Appropriate Under these Circumstances.

the nature and extent of the intervenors' interest, their standing to
raise relevant legal issues, the legal position they seek to advance,
and its probable relation to the merits of the case[,] whether changes
have occurred in the litigation so that intervention that was once
denied should be reexamined, whether the intervenors' interests are
adequately represented by other parties, whether intervention will
prolong or unduly delay the litigation, and whether parties seeking
intervention will significantly contribute to full development of the
underlying factual issues in the suit and to the just and equitable

22
23
24
25
26
27
28

The parties dispute whether an additional presumption of adequacy exists because “states are
acting on behalf of their constituencies.” See Opp. at 4; Reply at 3–6. But whether or not that
presumption exists here, it is clear that the proposed intervenor shares the “same ultimate
objective” as Plaintiffs. See Citizens for Balanced Use, 647 F.3d at 898.
5
2

adjudication of the legal questions presented.

1
2

Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011) (quoting Spangler v. Pasadena Bd. of

3

Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)). District courts have “broad discretion to make this

4

determination.” Id.
EPA does not dispute that EDF and State Plaintiffs share common claims. Opp. at 9. As

5
6

to timeliness, EPA argues that the “awkward timing” of the motion to intervene could disrupt case

7

management, as the initial case management conference was scheduled for October 2, 2018. Id.

8

EDF attended that case management conference, which was rescheduled to October 25, 2018.

9

Dkt. No. 63. And it appears that intervention will not cause any delay in the case, as EDF “has

10

agreed to comply with the schedule set by the [C]ourt.” Reply at 11.
Turning to the factors articulated in Perry, intervention would not “unduly delay” or

United States District Court
Northern District of California

11
12

otherwise prejudice the adjudication of the original parties’ rights. EPA makes no real argument

13

that permissive intervention would be prejudicial. Most important, it is clear that “the nature and

14

extent of [EDF’s] interest” is substantial, given its past and continued participation in landfill

15

emission legislation. See Perry, 630 F.3d at 905. Given both EDF’s technical expertise and that

16

the outcome could have significant consequences for its members, the Court finds that EDF will

17

likely contribute “to the just and equitable adjudication of the legal questions presented.” See id.

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
6

1

IV.

CONCLUSION
For the foregoing reasons, permissive intervention is warranted under the circumstances.

2
3

Accordingly, EDF’s motion to intervene is GRANTED. EDF will proceed in this action under

4

the existing complaint filed by the States.3 Parties are directed to confirm whether EDF joins in

5

the stipulation regarding undisputed facts filed on September 25, 2018. See Dkt. No. 58.
IT IS SO ORDERED.

6
7

Dated: 11/20/2018
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

EDF submitted a Proposed Complaint with its Motion to Intervene. See Dkt. No. 36-3. At the
October 25, 2018 hearing on this motion, however, EDF represented to the Court that it only
intends to advance claims set forth in the States’ Complaint, but submitted its Proposed Complaint
to comply with Rule 24(c). See Fed. R. Civ. P. 24(c) (providing that “[a] motion to intervene must
. . . be accompanied by a pleading that sets out the claim or defense for which intervention is
sought”).
7