American Farm Bureau Federation et al v. United States Environmental Protection Agency
Filing
87
MEMORANDUM AND ORDER granting the Motions to Intervene 27 , 25 AND 59 . Theclerk of court shall add each party to the docket and amend the caption accordingly. It is FURTHER ORDERED that Intervening Dfts shall jointlyfile their cross-motions for summary judgment and brsupp in the samemanner as the present motions. Individual briefing will not be permitted. Theddls for Intervening Dfts cross-motions for summary judgment andsupporting briefs will be set by further order of the court.Signed by Honorable Sylvia H. Rambo on 10/13/11 (ma, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMERICAN FARM BUREAU
FEDERATION, et al.,
:
:
:
Plaintiffs
:
:
:
v.
:
:
:
UNITED STATES
:
ENVIRONMENTAL PROTECTION :
AGENCY, et al.,
:
:
Defendants
:
CIVIL NO. 1:11-CV-0067
Judge Sylvia H. Rambo
MEMORANDUM
Presently before the court are three motions for leave to intervene. The
proposed intervenors seek leave to intervene in this action as party defendants as a
matter of right under Federal Rule of Civil Procedure 24(a)(2), or, in the alternative,
for permissive intervention under Federal Rule of Civil Procedure 24(b)(1). For the
reasons set forth below, the motions will be granted.
I.
Background
Plaintiffs in this case are seeking declaratory and injunctive relief
against Defendant, the United States Environmental Protection Agency (“EPA”).
Plaintiffs ask the court to vacate the Total Maximum Daily Load (“TMLD”)
established by EPA for the Chesapeake Bay and its tributaries. Although not directly
relevant to the intervention motions presently pending, some contextual background
is helpful to understand the posture and the nature of the issues involved in the
underlying case.
The Clean Water Act (“CWA”) seeks “to restore and maintain the
chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. §
1251(a). To achieve this, Congress granted EPA authority to, among other things,
develop effluent discharge standards, 33 U.S.C. § 1311, water quality standards, 33
U.S.C. § 1313, and limit pollution discharges from point sources through a
permitting scheme called the National Pollutant Discharge Elimination System
(“NPDES”), 33 U.S.C § 1342. This case implicates, primarily, the water quality
standard sections of the CWA. 33 U.S.C. § 1313
“Water quality standards” are regulations comprised of: 1) a description
of the designated use or uses of a water body; 2) the criteria necessary to protect the
use or uses; and 3) a statement by the applicable state that the standard will maintain
and protect the existing use and the water quality of the water body. 40 C.F.R. §
131.6. These state standards are then subject to EPA review. 33 U.S.C. § 1313(c).
To establish effluent limitations, the EPA may promulgate technology-based effluent
limits. 33 U.S.C. § 1312. When these efforts have proven insufficient to remove
water quality impairments, a TMDL must be established. 33 U.S.C. § 1313(d); 40
C.F.R. § 130.7. A TMDL is, in essence, a pollution budget, and it represents a
calculation of the maximum amount of a pollutant that a water body can receive and
still meet water quality standards. A TMDL represents the sum of point source
waste allocations, non-point source load allocations, and natural background sources
of pollutants. 40 C.F.R. § 130.2(I). Thus, a TMDL assigns allocations to farms,
cities, businesses, as well as residential and undeveloped lands. Although a TMDL
itself is only informational in nature, each state in the Chesapeake Bay watershed
2
must develop an implementation plan to describe how they will achieve their
respective allocations under the TMDL. 33 U.S.C. § 1313.
Efforts to reduce the amount of pollution entering the Bay from the
Chesapeake Bay watershed – which includes Virginia, Maryland, Pennsylvania,
New York, Delaware, West Virginia, and the District of Columbia, (collectively,
“Bay Jurisdictions”) – have been ongoing for more than thirty years. More recently,
in May 2009, President Obama issued executive order 13508, which required seven
federal agencies, led by the Administrator of the EPA and in consultation with Bay
Jurisdictions, to develop a strategy for addressing Bay pollution and preserving Bay
natural resources. On May 10, 2010, an agreement was signed by Jon A. Mueller,
Vice President for Litigation for the Chesapeake Bay Foundation, and a
representative of the EPA. (CBF Memo in Supp. of Mot. to Intervene, Doc. 52-1,
Exh. A.) Some of the proposed intervenors argue that this agreement effectively
settled Fowler v. EPA, No. 1:09-CV-00005-CKK (D.D.C. May 11, 2009), although
Plaintiffs apparently dispute this fact. Regardless, the agreement states that “By
December 31, 2010, pursuant to 33 U.S.C. §§ 1313(d) and 1267, EPA will establish
the Bay TMDL.” Id. On May 12, 2010, a final strategy was issued requiring EPA to
develop a Bay TMDL with full implementation required by 2025. Using model
simulations, the 2010 TMDL promulgated allocations of 185.9 million pounds per
year (mpy) of nitrogen, 12.5 mpy of phosphorus, and 6.45 billion pounds per year of
sediment among the above-mentioned Bay Jurisdictions. Plaintiffs here are
challenging the validity of this TMDL.
3
II.
Procedural History
Plaintiffs filed a complaint on January 10, 2011 (Doc. 1) and EPA filed
an answer on March 14, 2011 (Doc. 15). On April 4, 2011, Plaintiffs filed an
amended complaint (Doc. 16) to which EPA filed an answer on April 21, 2011 (Doc.
23). The amended complaint alleges that EPA violated the CWA and the
Administrative Procedures Act (“APA”) by issuing the 2010 TMDL for the
Chesapeake Bay and its tributaries. Plaintiffs assert that EPA lacked authority under
the CWA to issue the TMDL; the TMDL was arbitrary and capricious; EPA failed to
provided adequate public notice and comment on the TMDL; and the TMDL is ultra
vires. The Plaintiffs request that the court vacate the TMDL.
Three motions for leave to intervene have been filed. On May 25, 2011,
a joint motion was filed by the Chesapeake Bay Foundation, Inc., Citizens for
Pennsylvania’s Future, Defenders of Wildlife, Jefferson County Public Service
District, Midshore Riverkeeper Conservancy, and the National Wildlife Federation
(collectively, the “CBF Group”). (Doc. 25.) A brief in support was filed on June 3,
2011. (Doc. 52.) A second joint motion and brief was filed on May 25, 2011, by
several municipal clean water associations including the National Associations of
Clean Water Agencies (“NACWA”), Maryland Association of Municipal
Wastewater Agencies, Inc. (“MAMWA”), and the Virginia Association of Municipal
Wastewater Agencies, Inc. (“VAMWA”) (collectively, the “Municipal Associations
Group”). (Docs. 27 & 29.) Plaintiffs filed a consolidated response on June 20, 2011.
(Doc. 57.) Reply briefs were filed by the Municipal Associations Group (Doc. 66)
and the CBF Group (Doc. 67) on July 5 and July 7, 2011, respectively. A third
motion (Doc. 59) and supporting brief (Doc. 61) was filed on June 27, 2011, by the
4
Pennsylvania Municipal Authorities Association (“PMAA”). Plaintiffs filed a brief
in opposition on July 14, 2011, (Doc. 68), to which a reply brief was filed on July 28,
2011 (Doc. 70). Defendant EPA has not taken a position with regard to the motions.
Accordingly, all three motions are ripe for disposition.
The Proposed Intervenors1
III.
A.
The Municipal Associations Group
1. NACWA
NACWA is a voluntary, non-profit national trade association
representing the interests of the nation’s publicly owned wastewater and stormwater
utilities. NACWA’s members include nearly 300 of the nation’s municipal clean
water agencies, including nearly twenty within the Chesapeake Bay watershed.
These agencies own and operate wastewater treatment plants (“WWTPs”) to which
allocations have been granted under the TMDL. NACWA has led efforts to
implement environmental programs geared toward protecting the health of the public
and natural ecosystems.
2. MAMWA
MAMWA is a non-profit, non-stock corporation incorporated under the
laws of Maryland that represents the owners and operators of WWTPs throughout
Maryland. MAMWA’s members discharge treated wastewater into the Bay, or its
tributaries, pursuant to NPDES permits issued by the state of Maryland and have
received allocations for their discharge under the Bay TMDL. Since 1996,
1
The descriptions of the various proposed intervenors are taken directly from the parties’
respective motions. It is assumed that, consistent with Federal Rule of Civil Procedure 11, these
representations are accurate.
5
MAMWA has worked to reduce and eliminate water pollution through the
application of science and policy.
3. VAMWA
VAMWA is a non-profit, non-stock corporation incorporated under the
laws of Virginia that represents fifty-seven local governments, wastewater
authorities, and districts that own and operate WWTPs throughout Virginia. Most of
VAMWA’s members’ facilities discharge treated wastewater into the Bay or its
tributaries pursuant to state-issued NPDES permits. VAMWA has assisted members
in efforts to protect public health and the environment through science and policy.
B.
PMAA
PMAA is an association that represents 720 sewer and water authorities
in Pennsylvania. PMAA assists water and sewer authorities in providing services
that protect and enhance the environment and promote economic growth. The
Pennsylvania Department of Environmental Protection (“DEP”) adopted the
Pennsylvania Chesapeake Bay Tributary Strategy, which identified more than 180
WWTPs in Pennsylvania that would have to implement certain nutrient reduction
measures in order to address water quality issues in the Chesapeake Bay. Nearly half
of the 180 WWTPs are owned or operated by municipal authorities represented by
the government relations efforts of PMAA. Additionally, PMAA was an active
member of the DEP Stakeholders Group on the Chesapeake Bay Tributary Strategy
and continues to be actively involved in several work groups convened by DEP
regarding implementation of the Bay TMDL in Pennsylvania.
6
C.
The CBF Group
1. The Chesapeake Bay Foundation, Inc. (“CBF”)
CBF is a non-profit corporation based in Annapolis, Maryland. CBF is
dedicated to restoring and protecting the Chesapeake Bay and its tributaries. With
over 235,800 members, CBF engages in various programs and activities designed to
promote water quality awareness and reduce pollution. To that end, CBF has been
involved in numerous meetings with stakeholders and EPA regarding the
development of the Bay TMDL. CBF also submitted comments on the draft Bay
TMDL. CBF was a party to Fowler v. EPA, No. 1:09-C-00005-CKK (D.D.C.), a
matter that CBF claims was settled pursuant to an agreement that required, among
other things, the development of a Bay-wide TMDL by December 31, 2010.
2. Citizens for Pennsylvania’s Future (“PennFuture”)
PennFuture is a statewide public interest membership organization that
advocates for public policy to restore and protect the environment and safeguard
public health. Advocating for state and federal laws and regulations seeking to
restore and protect the Bay has been a significant focus of the group. As a member
of the Choose Clean Water Coalition, PennFuture commented on the draft Bay
TMDL. PennFuture’s members use the Susquehanna River and its tributaries for
recreational purposes, including kayaking, fishing, swimming and snorkeling.
3. Defenders of Wildlife (“Defenders”)
Defenders is a non-profit public interest conservation organization with
more than one million members and supporters nationally, including 46,000 in
Pennsylvania, 21,000 in Maryland, and 24,000 in Virginia. Defenders works to
protect all wild animals and plants in their natural communities and, as part of those
7
efforts, assists land trusts in the Chesapeake Bay watershed in conservation and
biodiversity efforts. Members regularly use the Bay and its tributaries for scientific
research geared toward protecting wildlife; recreational activities including boating,
canoeing, and kayaking; and to enjoy the natural environment and native wildlife.
Defenders provided public comment during the development of the TMDL and also
advocated on behalf of the TMDL.
4. Jefferson County Public Service District (“JCPSD”)
JCPSD is a duly created public service district under W.Va. Code 1613A-1, et seq. that provides sanitary sewer collection services in Jefferson County,
West Virginia. JCPSD serves approximately 1,900 customers.
5. Midshore Riverkeeper Conservancy (“Midshore”)
Midshore is a non-profit organization dedicated to restoring and
protecting the rivers of Maryland’s Eastern Shore, including the Choptank River, the
Miles River, the Wye and Wye East Rivers, and Eastern Bay, all tributaries to the
Chesapeake Bay. Midshore has over 700 members, most of whom live on or near
these waterways and use them for recreational activities including boating,
swimming, crabbing, fishing, bird watching, and hunting.
6. National Wildlife Federation (“NWF”)
NWF is the nation’s largest conservation education and advocacy
organization. NWF engages in nation-wide efforts to protect wildlife and has more
than four million members as well as forty-five state and territory-level affiliate
organizations, including affiliates in Delaware, the District of Columbia, New York,
Pennsylvania, Virginia and West Virginia. NWF has three primary missions:
confronting global warming, protecting and restoring wildlife, and connecting people
8
with nature. NWF has approximately 250,000 members in the Chesapeake basin and
the District of Columbia. NWF seeks to improve the water quality in the Bay
watershed through its grassroots efforts. NWF submitted comments during the
TMDL drafting process.
IV.
Standard
Rule 24 of the Federal Rules of Civil Procedure governs intervention in
an existing lawsuit. A movant may intervene as of right under Rule 24(a) or if
granted permission under Rule 24(b). Rule 24(c) sets forth the procedural
requirements for intervention.
Rule 24(a)(2) provides that “[o]n timely motion, the court must permit
anyone to intervene who . . . claims an interest relating to the property or transaction
that is the subject of the action, and is so situated that disposing of the action may as
a practical matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.” FED. R. CIV. P. 24(a)(2).
The Third Circuit has held that to intervene as of right under Rule
24(a)(2), a movant must establish the following four factors: 1) a timely application
for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat
that the interest will be impaired or affected by the disposition of the underlying
action, and 4) that the existing parties to the action do not adequately represent the
prospective intervenor’s interests. Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d
216, 220 (3d Cir. 2005) (citing Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d
Cir. 1998)). The movant must satisfy all four requirements. Id. (quoting Mountain
Top Condo. Assoc. v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d
9
Cir.1995)). “To establish a sufficient interest for intervention, [Petitioner] must
demonstrate an ‘interest relating to the property or transaction which is the subject of
the action.’” Liberty Mut., 419 F.3d at 220 (quoting Mountain Top, 72 F.3d at 366).
Rule 24(b)(1)(B) provides that “[o]n timely motion, the court may
permit anyone to intervene who . . . has a claim or defense that shares with the main
action a common question of law or fact.” FED. R. CIV. P. 24(b)(1)(B). Rule
24(b)(3) provides that “[i]n exercising its discretion, the court must consider whether
the intervention will unduly delay or prejudice the adjudication of the original
parties’ rights.” FED. R. CIV. P. 24(b)(3).
V.
Discussion
A.
Intervention as of Right
1. Timeliness
Rule 24(a) requires that in order to grant intervention as of right, the
motion must be timely. In making this determination, the court must consider “all
the circumstances,” including “(1) [h]ow far the proceedings have gone when the
movant seeks to intervene, (2) the prejudice which resultant delay might cause other
parties, and (3) the reason for the delay.” Choike v. Slippery Rock Univ. of Pa., 297
F. App’x 138, 140 (3d Cir. 2008). As noted by the Third Circuit, “the critical inquiry
is: what proceedings of substance on the merits have occurred?” Mountain Top, 72
F.3d at 369.
Notably, Plaintiffs do not challenge the timeliness of the motions and
the court does not independently find these motions to be otherwise untimely. The
lawsuit has not progressed to any proceeding of substance on the merits. The
10
proposed intervenors filed their respective motions on May 25 and June 27, 2011,
less than three months after the filing of the April 4, 2011 amended complaint. At
the time of these filings, the administrative record was not yet produced to the court.
Thus, the court finds that the motions are timely and a grant of intervention will not
cause prejudice or delay to the original parties.
2. Legally Cognizable Interest
A mere general interest in the subject matter of the litigation is not
enough to constitute a protectable interest under Rule 24(a). Rather, a proposed
intervenor must demonstrate “that there is a tangible threat to a legally cognizable
interest.” Mountain Top, 72 F.3d at 366. As the Third Circuit noted in Kleissler:
[T]he polestar for evaluating a claim for intervention is
always whether the proposed intervenor’s interest is direct
or remote. Due regard for efficient conduct of the litigation
requires that intervenors should have an interest that is
specific to them, is capable of definition, and will be
directly affected in a substantial concrete fashion by the
relief sought. The interest may not be remote or attenuated.
The facts assume overwhelming importance in each
decision.
157 F.3d at 972.
a. The Municipal Associations Group
The Municipal Associations claim that they have a protectable interest
in the outcome of this case because they have an interest in the amount of nutrients
and sediment their members are authorized to discharge. They further claim that
their members discharge directly or immediately upstream of waters that are already
listed for TMDL development and therefore the facilities and lands owned by their
members are subject to the control strategy established by the TMDL. Movants also
contend that many of their members have recently completed, or are in the process of
11
completing, major capital investments in treatment upgrades to comply with
allocations assigned to their WWTPs under the Bay TMDL. They argue that
Plaintiffs’ challenge to the TMDL could affect their members’ individual allocations,
thus rendering their capital upgrades insufficient or obsolete.2
Other courts have found such interests to be sufficient to satisfy Rule
24(a) standards. In Sierra Club v. EPA, the Ninth Circuit Court of Appeals reversed
a district court ruling denying the City of Phoenix’s motion to intervene as of right.
995 F.2d 1478 (9th Cir. 1993), followed in relevant part, overruled on other grounds
by The Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). In that
case, the Sierra Club sued the EPA seeking declaratory and injunctive relief that
would require the EPA to change the terms of permits issued to the City pursuant to
the Clean Water Act. In conducting a Rule 24(a) analysis, the court found that the
city had a legally protectable interest in the litigation. Specifically, the court found
that:
The legitimate interests of persons discharging permissible
quantities of pollutants pursuant to NPDES permits are
explicitly protected by the [Clean Water] Act. 33 U.S.C. §
1342. Because the Act protects the interest of a person
who discharges pursuant to a permit, and the City of
Phoenix owns such permits, the City has a “protectable”
interest. These permits may be modified by control
strategies issued as a result of this litigation, so the City’s
protectable interest relates to this litigation.
2
In their response, Plaintiffs do not specifically argue that these Movants have no legally
protectable interest relating to this action, but rather they argue that Movants lack an interest that would
be impaired by an adverse judgment. Although the court in Kleissler seemed to collapse the “interest”
prong into the “impairment” prong, the court prefers to first establish whether or not a protectable
interest exists, and then subsequently determine whether that interest will be impaired by an adverse
ruling. Thus, the court will address Plaintiffs’ arguments regarding “impairment” more fully below.
12
Id. at 1485-86. Likewise here, the Municipal Associations’ members discharge
nutrients and sediment pursuant to their NPDES permit limits which are subject to
the strategy established by the Bay TMDL. Thus, the court finds that Movants’
interest in the amount of nutrients and sediment their members are authorized to
discharge, which are governed by permits that may be amended as a result of this
litigation, constitutes a legally protectable interest.
The court may also consider, and in this case acknowledges, the
Movants’ economic interests in the outcome of this case. See Kleissler, 157 F.3d at
973 (granting intervention in suit seeking injunction to halt all logging activity,
finding movants’ economic interest in future timber contracts represented a “strong”
and “direct” economic interest in the outcome of the litigation); Sierra Club v. EPA,
No. H-97-3838 (D. Md. Jan. 20, 1998) (Memorandum and Order granting
MAMWA’s motion to intervene recognizing, inter alia, MAMWA’s economic
interest in suit alleging that the EPA failed to fulfill certain duties under the Clean
Water Act and the Endangered Species Act) (citing United States v. City of Niagra
Falls, 103 F.R.D. 164, 166 (W.D.N.Y. 1984)). The court finds that movants’
economic interests of preserving their capital investments in treatment upgrades to be
more than a “mere attenuated economic interest” because they may be directly
affected by the outcome of this litigation. Kleissler, 157 F.3d at 973.
To summarize, the property that is the subject of this litigation is the
Chesapeake Bay. The transaction that is the subject of this litigation is the Bay
TMDL that establishes nutrient and sediment allocations for the Chesapeake Bay.
Movants claim that they have an interest in the (1) continued discharge of nutrients
and sediment into waters of the Chesapeake Bay watershed pursuant to state-issued
13
NPDES permits, and (2) their economic expenditures made in light of current TMDL
allocations. Certainly, these interests are sufficiently related to the property and
transaction that are the subject of this action to support intervention as of right.
b. PMAA
PMAA seeks to intervene on nearly identical grounds as the Municipal
Associations Group. PMAA asserts that its members discharge into bodies of water
that are upstream of waters that are listed for TMDL development and are subject to
the limits imposed by the TMDL. Like the Municipal Associations Group, PMAA
relies on Sierra Club v. EPA, 995 F.2d 1478 (9th Cir. 1993), where the court found
that discharging permissible levels of pollutants pursuant to an NPDES permit,
which could be subject to future permit modifications as a result of litigation, was a
legally protectable interest sufficient to allow the movant to intervene as of right.
PMAA argues that its members likewise have a protectable interest in the amount of
nutrients and sediment that they are authorized to discharge. For the same reasons
noted above, the court finds that PMAA has a protectable interest sufficiently related
to the subject of this action to support PMAA’s intervention as of right.
c. The CBF Group
Members of the CBF Group assert that they have a significantly
protectable interest in this litigation as a result of their interests in: (1) the restoration
of natural resources; (2) protecting past and present efforts supporting the reduction
of pollutant loads; (3) preserving the proper proportional allocation of pollution
loads and control efforts between differing contributing sources; and (4) preserving
the settlement agreement in Fowler v. EPA. More specifically, CBF, PennFuture,
Defenders, Midshore, and NWF all claim that their members use the waters of the
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Bay and its tributaries for aesthetic and recreational purposes. They also claim that
restoration and preservation of the Bay is a core objective of their respective
organizations. CBF and PennFuture point to past legal efforts geared towards
improving regulatory compliance and have also advocated for federal and state laws
as well as regulations and polices seeking to protect and restore the Bay. CBF is
particularly concerned about preserving the May 10, 2010 agreement between itself
and EPA, which called for the creation of the Bay TMDL, and which CBF argues
was part of a settlement agreement in the Fowler litigation. Further, these groups
participate in numerous educational programs that focus on teaching Bay ecology
and also participate in other restoration activities including shoreline protection
projects, tree planting, and oyster cultivation and dispersal. CBF was also involved
in several stakeholder meetings with EPA during the development of the TMDL and
was an active participant on the technical committee that oversaw the development
of the TMDL. CBF, PennFuture (as a member of the Choose Clean Water
Coalition), Defenders, and NWF all submitted comments during the TMDL drafting
process. Further, JCPSD, like members of the Municipal Association Group, claims
it has an interest in preserving the TMDL allocations that dictate the amount of
nutrients and sediment that they are authorized to discharge.
The court’s review of relevant case law finds these interests to be
sufficient to satisfy the “interest” prong of Rule 24(a)(2). In Sagebrush Rebellion,
Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983), the Ninth Circuit held that the Audobon
Society was entitled as a matter of right to intervene in an action challenging the
legality of a measure which it had supported. The suit challenged the legality of
actions taken by a former Secretary of Interior to create the Snake River Birds of
15
Prey National Conservation Area in Idaho. The District Court denied intervention,
finding that the Audubon Society’s interest was insufficient because it had no
interest in the land that was the subject matter of the lawsuit. The Ninth Circuit
reversed, finding that the Audobon Society’s interest in protecting birds and other
animals and their habitats was sufficient to warrant intervention as of right. Id. at
528.
Other Courts of Appeals have held similarly. In Coalition of
Arizona/New Mexico Counties for Stable Economic Growth v. Dep’t of the Interior,
100 F.3d 837 (10th Cir. 1996), the Tenth Circuit found that an individual who had
studied and photographed the Spotted Owl had sufficient interest to intervene in a
suit against the United States Fish and Wildlife Service challenging the Service’s
decision to protect the Owl under the Endangered Species Act. The court found that
the proposed intervenor’s “involvement with the Owl in the wild and his persistent
record of advocacy for its protection amounts to a direct and substantial interest . . .
for the purpose of intervention as of right.” Id. at 841. The court relied on the
Supreme Court’s statement in Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63
(1992) asserting that “the desire to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest for purposes of standing.”3 See
also Utah Assoc. of Counties v. Clinton, 255 F.3d 1246 (10th Cir. 2001) (granting
3
The Court in Lujan analyzed such interests in the context of Article III standing, which
requires an “injury in fact,” meaning an “invasion of a legally protected interest which is (a) concrete
and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” If such interests
satisfy Article III standing, then they also satisfy the “interest” prong of Rule 24(a), “because Article III
standing requirements are more stringent that those for intervention under rule 24(a), [thus] the
determination that [the applicants] have standing under Article III compels the conclusion that they have
an adequate interest under the rule.” Coalition, 100 F.3d at 842 (quoting Yniguez v. Arizona, 939 F.2d
727, 735 (9th Cir. 1991)); Utah Assoc. of Counties v. Clinton, 255 F.3d 1246 (10th Cir. 2001) (same).
16
several environmental interest groups intervention as of right in action challenging a
presidential proclamation establishing Grand Staircase Escalante National
Monument, finding movants’ interest in protecting public lands and assuring their
continued integrity was sufficient to warrant intervention as of right); Mausolf v.
Babbitt, 85 F.3d 1295 (8th Cir. 1996) (granting intervention to conservation groups
in suit seeking to enjoin the enforcement of restrictions on snowmobiling in a
national park, finding the conservation groups’ interest in the park’s well-being and
efforts to protect that interest are sufficient for intervention as of right). Numerous
other courts have granted intervention as of right where the particular interests of a
special interest group were threatened.4
Here, the subject of Plaintiffs’ lawsuit is the Chesapeake Bay. Like the
intervenors in Utah Association of Counties, Coalition of Arizona/New Mexico
Counties, and Mausolf, the proposed intervenors have an interest in efforts affecting
the Bay, not only because the groups’ individual members utilize the Bay and its
4
Hazardous Waste Treatment Council v. South Carolina (In re Sierra Club), 945 F.2d 776,
779 (4th Cir. 1991) (holding that an environmental organization that was a party to an administrative
permit proceeding was entitled to intervene as a matter of right in an action challenging the
constitutionality of a governing state regulation); Washington State Bldg. & Constr. Trades Council v.
Spellman, 684 F.2d 627, 630 (9th Cir. 1982) (holding that “the public interest group that sponsored an
initiative [to limit the amount of radioactive waste entering state] . . . was entitled to intervention as a
matter of right under Rule 24(a)” in an action challenging the initiative); Planned Parenthood v.
Citizens for Cmty. Action, 558 F.2d 861, 869 (8th Cir. 1977) (holding that a neighborhood association,
whose “professed purpose . . . is to preserve property values and insure that abortion facilities do not
affect the health, welfare and safety of citizens,” was entitled to intervene in an action challenging the
constitutionality of a local ordinance imposing a moratorium on the construction of abortion clinics);
N.Y. Public Interest Research Grp. v. Regents of the Univ., 516 F.2d 350, 351-52 (2d Cir. 1975)
(holding that a pharmacists’ organization and individual pharmacists had a right to intervene in an action
brought by consumers to challenge a state regulation prohibiting the advertising of the price of
prescription drugs); South Dade Land Corp v. Sullivan, 155 F.R.D. 694 (S.D. Fla. 1994) (granting
intervention to public interest organizations whose members use and enjoy Everglades National Park in
suit seeking to enjoin the federal and state defendants from continuing to operate a Park water project).
17
tributaries for recreational and aesthetic purposes, but also because such efforts go to
the core mission of the groups. Given their past legal, educational, and physical
efforts geared toward protecting and restoring the Bay, and the personal use and
enjoyment of the Bay by the groups’ individual members, the court finds that these
groups have demonstrated a legally protectable interest in the outcome of this case.
3. Impairment of Interests
a. The Municipal Associations Group and PMAA
In order to meet the requirements of Rule 24(a)(2), proposed intervenors
must also demonstrate that their interest might become affected or impaired, as a
practical matter, by the disposition of the action in their absence. Mountain Top, 72
F.3d at 368. Here, both the Municipal Associations Group and PMAA believe that if
Plaintiffs succeed in this litigation, resulting in lax or no standards for non-point
sources, then a greater burden will fall on WWTPs to meet the TMDL total
allocations. In support, they argue that TMDLs are a “zero sum game” and that any
relaxing of one source sector’s assigned allocations will necessarily result in more
stringent allocations by the remaining source sectors, unless the total maximum daily
load is also increased. Movants further assert that they already completed or are in
the process of completing major capital investments for treatment upgrades, efforts
which could be rendered obsolete if they are required to adhere to stricter standards.
Plaintiffs respond, arguing that none of these interest are germane to the
narrow issues before the court, namely, (1) whether EPA exceeded its statutory
authority by issuing the TMDL, and (2) whether EPA’s modeling effort was arbitrary
and its public participation process was inadequate. Additionally, Plaintiffs argue
that Movants’ “burden shifting” argument is based on pure speculation, and further
18
notes that this litigation does not address or challenge specific load allocations;
rather it challenges EPA’s authority to assign any of the allocations. Plaintiffs state
that if they “are successful and the TMDL is vacated, the result of any new load
allocations issued by states to any sector is not known.” (Pls.’ Cons. Br. In Opp.,
Doc. 57, 24 of 36.)
Plaintiffs’ argument that resolution of the narrow legal issues will not
adversely affect Movants’ interests represents a misinterpretation of the standard.
The Rule refers to impairment “as a practical matter.” FED. R. CIV. P. 24(a)(2).
Thus, the court is not limited to consequences of a strictly legal nature. Utah Assoc.
of Counties, 255 F.3d at 1253 (citing Natural Res. Def. Council v. United States
Nuclear Regulatory Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978)). “To satisfy
this element of the intervention test, a would-be intervenor must show only that
impairment of its substantial legal interest is possible if intervention is denied. This
burden is minimal.” Id. (quoting Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir.
1999)) (emphasis added). Accordingly, the court is free to look at the realistic and
practical consequences of a potential ruling, not just the affects of the resolution of
narrowly-tailored legal issues. Dev. Fin. Corp. v. Alpha Housing & Health Care,
Inc., 54 F.3d 156, 162 (3d Cir. 1995); Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir.
1987) (“[Rule 24(a)] directs the courts to consider the practical consequences of the
litigation in passing on an application to intervene as of right.”)
Plaintiffs request that the court vacate the TMDL. Thus, it is possible
that all or parts of the TMDL will be vacated as a result of this litigation. As
Plaintiffs readily point out, such a result could have consequences such as amended
load allocations issued by states, and the precise nature of these amended allocations
19
is not yet known. Movants suggest that, given the zero-sum nature of TMDLs, a
greater burden will shift to them to fulfill the load allocations in the TMDL if the
standards applicable to the Plaintiffs are laxed or vacated. Plaintiffs do not
specifically deny this point, and, in arguing that such a result is speculative, tacitly
concede that it is at least a possibility. Accordingly, the court finds that the
Municipal Associations Group and PMAA have satisfied their burden of showing
that their interests may be impaired or affected by the practical consequences of the
disposition of this action.
b. The CBF Group
The CBF Group argues that their interests could be impaired by an
adverse ruling because CBF dedicates significant resources to educational and
restoration programs seeking to improve the Bay’s water quality. CBF points out
that it runs programs in Maryland, Pennsylvania, Virginia and the District of
Columbia that enroll over 30,000 students to teach about the Bay watershed and
water quality issues. CBF also operates oyster restoration programs in Maryland and
Virginia, and aquatic grass planting programs on the James and Potomac Rivers,
tributaries to the Bay. CBF also dedicates considerable resources, including over
$18 million to help farmers install best management practices, to help with
compliance and water quality issues. CBF argues that the impetus for some of these
programs will decrease if the TMDL is vacated. CBF also believes that water quality
will continue to decline, harming natural resources that are essential to their
educational and restoration programs. Lastly, CBF points out that vacating the
TMDL would adversely impact the legal agreement between EPA and CBF requiring
EPA to develop and administer a Bay-wide TMDL. In addition, the interests of
20
PennFuture, Midshore, NWF and Defenders would also be affected because each
group has taken specific action to protect and restore the Bay’s water quality and
each has members that use the Bay and its tributaries for recreational and aesthetic
purposes.
Plaintiffs respond that such interests are nothing more that “a general
interest in environmental regulation” that is insufficient to support intervention.
(Doc. 57 at 26 of 36.) Having already found that the CBF Group has established a
legally protectable interest related to this case, the court can dismiss this argument.
Plaintiffs also argue that the proposed intervenors misapprehend the nature of the
relief, noting that this suit does not seek a result requiring increased pollution to the
Bay or decreased environmental protection. Here again, Plaintiffs frame the issues
and potential consequences of this case too narrowly. As stated, the court must
consider not only the nature of the relief sought (e.g., to vacate the TMDL), but also
the practical consequences of such a ruling. Dev. Fin. Corp., Inc., 54 F.3d at 162. It
is not unreasonable to conclude that granting the relief requested and vacating the
TMDL could lead to further degradation of the Bay’s water quality and impair the
interests of the proposed intervenors. As stated, courts have granted intervention as
of right to public interest groups in actions challenging the legality of a measure
which it had supported or in circumstances where the outcome of the litigation might
affect the group’s members’ enjoyment of the resource. See Sagebrush Rebellion,
713 F.2d at 528 (granting intervention to National Audobon Society finding the
Society’s interest in preserving birds and their habitats could be impaired in suit
challenging the establishment of a conservation area); South Dade Land Corp., 155
F.R.D. at 697 (granting intervention as of right to public interest group where suit
21
challenging water flow projects in Everglades National Park could jeopardize the
group’s members’ use and enjoyment of the park.)
The court also disagrees with Plaintiffs’ argument that there is no nexus
between the Fowler settlement agreement and this litigation. Plaintiffs argue,
without much explanation, that the final TMDL was not the fruit of the Fowler
litigation. The basis for this claim appears to be that a TMDL draft was already
underway at the time agreement was signed. The court finds little relevance in this
argument. What is relevant is that the CBF and EPA signed an agreement requiring
EPA not only to develop, but also administer a Bay-wide TMDL. (See Exh. A to
Proposed Intervenors’ Memo. in Supp., Doc. 52-1, ¶ III.A, 1-4 and ¶ III.B, 5-7.) The
present suit seeks to vacate that TMDL. Thus, CBF’s legal interest in preserving that
agreement will be impaired by a ruling vacating the TMDL because the EPA will not
be able to administer the TMDL as anticipated by the agreement. Likewise, an
adverse decision in this suit could jeopardize the interests of Defenders, NWF,
PennFuture and Midshore in preserving habitat, protecting wildlife, and maintaining
their members use and enjoyment of the Bay.5
4. Inadequacy of Representation
As the Third Circuit noted in Kleissler, the burden of establishing
inadequacy of representation by existing parties varies with each case. 157 F.3d at
972. The Kleissler court held that:
5
Proposed Intervenor JCPSD, filing jointly with the CBF group, argues that it might be
adversely impacted if the TMDL is vacated because it may be subjected to more stringent allocations.
The court finds that, for same reasons as stated when addressing the motions of the Municipal
Associations Group and PMAA, JCPSD has satisfied its burden of showing that its interests may be
impaired or affected by the practical consequences of the disposition of this case.
22
[a] government entity charged by law with representing
national policy is presumed adequate for the task . . .
particularly when the concerns of the proposed intervenor,
e.g., a “public interest” group closely parallel those of the
public agency. In that circumstance, the “would-be
intervenor [must make] a strong showing of inadequate
representation.” [B]ut the presumption notwithstanding,
when an agency’s views are necessarily colored by its view
of the public welfare rather the more parochial views of a
proposed intervenor whose interest is personal to it, the
burden is comparatively light.
Id. (internal citations omitted); accord Conservation Law Found. v. Mosbacher, 966
F.2d 39, 44 (1st Cir. 1992); Mausolf, 85 F.3d at 1303 (“when the proposed
intervenors’ concern is not a matter of ‘sovereign interest,’ there is no reason to think
the government will represent it.”) Moreover, an intervenor need only show that
representation may be inadequate, not that it is inadequate. See Trbovich v. United
Mine Workers, 404 U.S. 528, 538, n.10 (1972); see also Kleissler, 157 F.3d at 972
(citing Conservation Law Found., 966 F.2d at 44). “The possibility that the interests
of the applicant and the parties may diverge ‘need not be great’ in order to satisfy the
minimal burden.” Utah Assoc. of Counties, 255 F.3d at 1254.
Here, EPA is a governmental entity and thus the rebuttable presumption
that EPA will adequately represent the proposed intervenors applies. The CBF
Group sets forth several arguments to demonstrate that EPA cannot adequately
represent their interests. For instance, that group asserts that (1) administrations
change and EPA is subject to political pressures that may not align with the
intervenors interests, (2) EPA must represent broad and potentially conflicting
interests and therefore may not adequately represent their “specific, parochial
interests,” (3) EPA may not resolve this case through litigation, but in a manner more
23
harmful to Movants’ interests, and (4) EPA may not appeal a decision adverse to
Movants’ interests.
Plaintiffs argue that EPA can adequately represent the proposed
intervenors because they share a “general alignment of interest” in upholding the
TMDL. Plaintiffs go on to address each assertion by the CBF Group and argue that
each claim, by itself, is not enough to show inadequacy of representation. For
example, Plaintiffs argue that Movants’ argument that representation is inadequate
because of the possibility of shifting political pressures or changes in administration
is unpersuasive because it would naturally follow that any time the government is a
party, such an argument could be lodged in support of intervention which would
essentially eviscerate the inadequacy of representation prong of the test.
Nevertheless, the Third Circuit has found this argument to be persuasive in support
of intervention. See Kleissler, 157 F.3d at 973-74 (granting intervention in part
because the court did not believe that it was “realistic to assume that the [United
States Forest Service’s] programs [would] remain static or unaffected by
unanticipated policy shifts”). The court agrees that this argument, by itself, is not
enough to find EPA’s representation of proposed intervenors inadequate, but it is
nevertheless a consideration that, in conjunction with the other arguments, supports
intervention.
The CBF Group next asserts that the government can not adequately
represent their “specific, parochial” interests. The CBF Group argues that they are
groups with regional and local interests, including aesthetic, economic, educational,
recreational, and resource interests that would be harmed by vacating the TMDL.
Plaintiffs respond by noting that although EPA’s interests may differ from those of
24
the proposed intervenors “as a general matter,” (Doc. 57 at 19 of 36), their interests
nevertheless coincide with regard to the legal issues to be determined by this lawsuit
regarding the validity and sufficiency of the TMDL.
Here again, the court finds Movants’ argument persuasive. In Kleissler,
the Third Circuit acknowledged that a government agency must represent “numerous
complex and conflicting interests” and “the straightforward business interests
asserted by intervenors here may become lost in the thicket of sometimes
inconsistent governmental policies.” Kleissler, 157 F.3d at 973-74; see also Dimond
v. District of Columbia, 792 F.2d 179, 192-93 (D.C. Cir. 1986) (a governmental
entity charged by law with representing the public interest of its citizens would be
“shirking its duty” were it to advance the narrower interests of a private entity.)
Here, the interests of numerous stakeholders are implicated by the Bay TMDL, as
evidenced by the numerous groups presently seeking intervention. Because the EPA
represents the broad public interest, it must consider not only the interests of the
public interests groups, but also the possibly conflicting interests from agriculture,
municipal stormwater associations, and land developers. Proposed intervenors also
point to past legal proceedings wherein CBF and others sued EPA for failing to
comply with the CWA and other Chesapeake Bay Agreements as further evidence of
potentially conflicting interests. In a related argument, proposed intervenors argue
that the incongruence of interests may lead EPA to settle or otherwise resolve this
litigation in a matter unfavorable to their interests, or may dissuade EPA from
appealing a decision that adversely affects Movants’ interests. As noted in Kleissler,
such arguments can give a proposed intervenor “legitimate pause” when considering
25
its confidence in adequate representation by the government. 157 F.3d at 973 (citing
Curry v. U.S. Forest Serv., 988 F. Supp. 541 (W.D. Pa. 1997)).
When considering these arguments in the aggregate, the court finds that
the CBF Group has satisfied their “comparatively light” burden of showing the
possibility of inadequate representation. The same holds true for the Municipal
Associations Group and PMAA, who argue that they have specific economic
interests related to capital upgrade costs and corresponding rate increases, as well as
specific operational interests related to the possibility of more stringent discharge
restrictions. Much like the specific and parochial interests of the CBF Group, the
court finds these narrow interests may conflict with EPA’s broader interest of
protecting the public welfare and thus EPA may not adequately represent their
interests. Based on the foregoing, the court finds that Movants have satisfied all the
elements necessary to intervene as a matter of right in this case as Defendants.6
B.
Permissive Intervention
Even if the Movants were not entitled to intervene as of right, the court
is satisfied that permissive intervention would be warranted under Rule 24(b).
Permissive intervention under Rule 24(b)(2) is allowed on timely application “when
an applicant’s claim or defense and the main action have a question of law or fact in
common.” FED. R. CIV. P. 24(b)(2). In deciding whether to permit intervention
6
Movants assert that they need not show that they have Article III standing as a
prerequisite for intervention as of right. The court agrees. Although the circuit courts are split on this
issue, case law in the Third Circuit indicates that Article III standing is not a prerequisite for
intervention as a matter of right. See CSX Transp., Inc. v. City of Phila., 2005 U.S. Dist. LEXIS 14300,
*5-6 (E.D. Pa. July 15, 2005) (noting that neither the Supreme Court nor the Third Circuit have
indicated that Article III standing is a requisite to Rule 24 intervention and denying intervention without
analyzing Article III standing). In a recent opinion, the Third Circuit noted the circuit split on this issue,
but once again declined to address the issue. Am. Auto. Ins. Co. v. Murray, 2011 U.S. App. LEXIS
18558, *12, n.4 (3d Cir. Sept. 7, 2011).
26
under Rule 24(b), “courts consider whether the proposed intervenors will add
anything to the litigation.” See Kitzmiller v. Dover Area Sch. Dist., 229 F.R.D. 463,
471 (M.D. Pa. 2005). Here, Movants, as intervening Defendants, will argue in favor
of the sufficiency and validity of the Chesapeake Bay TMDL pursuant to the CWA
and APA. These arguments are congruent with the legal issues implicated in the
main action between Plaintiffs and EPA. The court does not find that intervention
will unduly delay the proceedings or prejudice the adjudication of the original
parties’ rights. In fact, given the complexity and voluminous size of the
administrative record, which includes scientific models, the court finds that the
presence of the intervenors may serve to clarify issues and, perhaps, contribute to
resolution of this matter.
VI.
Conclusion
For the foregoing reasons, the court will grant the proposed intervenors’
motions for leave to intervene. An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: October 13, 2011.
27
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMERICAN FARM BUREAU
FEDERATION, et al.,
:
:
:
Plaintiffs
:
:
:
v.
:
:
:
UNITED STATES
:
ENVIRONMENTAL PROTECTION :
AGENCY, et al.,
:
:
Defendants
:
CIVIL NO. 1:11-CV-0067
Judge Sylvia H. Rambo
ORDER
In accordance with the above memorandum, it is HEREBY
ORDERED that:
a) the Joint Motion for Leave to Intervene as Defendants filed by the
Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Defenders of
Wildlife, Jefferson County Public Service District, Midshore Riverkeeper
Conservancy, and National Wildlife Federation (Doc. 25); and
b) the Joint Motion for Leave to Intervene as Defendants filed by the
National Association of Clean Water Agencies, the Maryland Association of
Municipal Wastewater Agencies, Inc., and the Virginia Association of Municipal
Wastewater Agencies, Inc. (Doc. 27); and
c) the Motion for Leave to Intervene as Defendant filed by the
Pennsylvania Municipal Authorities Association (Doc. 59) are GRANTED. The
clerk of court shall add each party to the docket and amend the caption accordingly.
1
It is FURTHER ORDERED that Intervening Defendants shall jointly
file their cross-motions for summary judgment and briefs in support in the same
manner as the present motions. Individual briefing will not be permitted. The
deadlines for Intervening Defendants’ cross-motions for summary judgment and
supporting briefs will be set by further order of the court.
s/Sylvia H. Rambo
United States District Judge
Dated: October 13, 2011.
2
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